UNITED STATES OF AMERICA, PETITIONER V. MARY DANN AND CARRIE DANN No. 83-1476 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Summary of argument Argument: The deposit of funds satisfying the Indian Claims Commission award into a trust account for the Western Shoshones bars respondents from asserting that the Shoshones retain any interest in the lands covered by the award Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-29a) is reported at 706 F.2d 919. The judgment order of the district court (Pet. App. 30a-32a) is unreported. A prior opinion of the court of appeals is reported at 572 F.2d 222. JURISDICTION The judgment of the court of appeals (Pet. App. 33a) was entered on May 19, 1983. An order denying a petition for rehearing (Pet. App. 34a) was entered on November 7, 1983. On January 27, 1984, Justice Rehnquist entered an order extending the time for filing a petition for a writ of certiorari through March 6, 1984. The petition was filed on that date and was granted on May 29, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 1. Section 22 of the Indian Claims Commission Act, ch. 959, 60 Stat. 1055, 25 U.S.C. (1976 ed.) 70u, /1/ provides: (a) When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission. The payment of any claim, after its determination in accordance with this (Act), shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. (b) A final determination against a claimant made and reported in accordance with this (Act) shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy. 2. 31 U.S.C. (Supp. V 1981) 724a /2/ provides in pertinent part: There are appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment, not otherwise provided for, as certified by the Comptroller General, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of Section 2414, 2517, 2672, or 2677 of title 28 and * * * awards rendered by the Indian Claims Commission * * *. QUESTION PRESENTED The Indian Claims Commission entered a final judgment awarding the "Western Shoshone Identifiable Group" of Indians in excess of $26 million as damages for the extinguishment of their aboriginal title to over 24 million acres in Nevada and California. Section22(a) of the 1946 Indian Claims Commission Act provides that upon "payment of any claim" adjudicated by the Commission, the United States receives a "full discharge" of "all claims and demands touching any of the matters involved in the controversy." Funds to pay the Western Shoshone judgment have been automatically appropriated pursuant to 31 U.S.C. (Supp. V 1981) 724a. The judgment fund has been deposited in an interest-bearing trust account in the Treasury for the benefit of the Western Shoshones. However, the proceeds have not yet been distributed to individual Indians, or committed to any other designated tribal purpose, pursuant to a plan established under the Distribution of Judgment Funds Act, 25 U.S.C. 1401 et seq. The question presented is whether, under these circumstances, the Western Shoshone remain free to assert, in collateral litigation, that aboriginal title to lands covered by the Claims Commission award has never been extinguished. STATEMENT In this action, the court of appeals held that neither entry of a final judgment by the Indian Claims Commission awarding an Indian tribal group compensation for the extinguishment of their aboriginal title to land, nor the actual deposit of funds appropriated to pay the judgment into a trust account for the tribal group, maintained in the Treasury, bars a member of the beneficially interested tribe from asserting, in collateral litigation, that aboriginal title has not been extinguished. The court further ruled that, contrary to the premise of the Indian Claims Commission proceedings maintained by the tribal group in which the claims award was made, the United States has never extinguished tribal aboriginal title to the lands in question. 1. The United States commenced this trespass action in 1974 by filing a complaint in the United States District Court for the District of Nevada alleging that respondents Mary Dann and Carrie Dann were grazing livestock on eight sections of federal public lands in the Elko Grazing District in Nevada without a grazing permit from the Bureau of Land Management (BLM). The complaint charged that the unauthorized grazing constituted a violation of regulations issued by the Secretary of the Interior pursuant to the Taylor Grazing Act, 43 U.S.C. 315 et seq. The government sought an injunction barring the Danns from grazing their animals without a BLM grazing permit and also requested damages for the past grazing trespasses. Respondents answered the trespass charge by asserting that BLM lacked authority to administer the lands because "said lands are beneficially owned by the defendants and other members of the Western Shoshone Tribe." The answer requested that the court enter judgment declaring that "the defendants are members of the Western Shoshone Tribe of Indians" and that "the Western Shoshone tribes of Indians are the recognized beneficial owners of the land" described in the complaint. 2. The lands occupied by respondents are a small part of a much larger area that was the subject of proceedings before the Indian Claims Commission at the time that the government's complaint in this trespass action was filed. The Indian Claims Commission had been established in 1946, in order to provide a monetary damages remedy against the United States for wrongs allegedly committed by the United States in its dealings with the Indian tribes. The Commission was authorized to "hear and determine" claims on behalf of any "Indian tribe, band or other identifiable group of American Indians residing within the territorial limits of the United States." Section 2, 25 U.S.C. (1976 ed.) 70a. Claims within the Commission's jurisdiction included, at one extreme, some that were relatively conventional in nature, and which generally might have been maintained against the United States by any aggrieved person, such as those based upon the Constitution, federal laws, treaties or executive orders. Section 2(1), 25 U.S.C. (1976 ed.) 70a(1); compare 28 U.S.C. 1491. At the other extreme, the Commission's jurisdiction embraced some categories of claims as to which the United States had not consented to suit by non-Indian claimants: "claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity." Section 2(5), 25 U.S.C. (1976 ed.) 70a(5). In the Claims Commission proceedings, originally filed in 1951, various Shoshone tribal groups sought, through representative parties, to recover damages for the loss of aboriginal title to lands located in Nevada, California, Idaho, Wyoming and Colorado that they claimed to have possessed. /3/ The Commission decided to consider the claims of the constituent bands or identifiable groups of the larger Shoshone Nation separately. The Commission found that the Western Shoshone constituted a separate identifiable group for the purpose of presenting a claim against the United States. It also found that the Temoak Band of Shoshone Indians, a federally recognized band of Western Shoshones organized under the Indian Reorganization Act of 1934, 25 U.S.C. 461 et seq., was a proper representative of the Western Shoshone Identifiable Group. See 25 U.S.C. (1976 ed.) 70i. Thus, the Temoak Band was authorized to maintain, on behalf of the entire Western Shoshone group, a claim for damages for the extinguishment of aboriginal title to 22 million acres in Nevada and 2 million adjoining acres located in California that had allegedly been occupied by the Western Shoshones. /4/ The basis for that claim, as set out in the claimant's Proposed Findings of Fact and Brief filed in the claims proceeding (at 2-3), was that the Western Shoshones' aboriginal lands had been "taken from them from time to time by" the United States and that the United States "ha(d) obtained their lands and extinguished their original Indian title without compensation and under circumstances which did not comport with fair and honorable dealings * * *." Following a trial and briefing of the land title issues, the Indian Claims Commission entered an interlocutory order on October 16, 1962, in which it found that the Western Shoshone had held aboriginal title to 24,396,403 acres of land in the present States of California and Nevada. Shoshone Tribe v. United States, 11 Indian Cl. Comm'n 387, 413-414 (1962). The Commission found that title to the Shoshone lands in California had been extinguished on March 3, 1853 (id. at 415). With respect to the bulk of the lands, located in Nevada, the Commission found that aboriginal title had been extinguished over a period of years through "gradual encroachment by whites, settlers and others, and the acquisition, disposition or taking of the (Western Shoshones') lands by the United States for its own use and benefit, or the use and benefit of its citizens" (id. at 416). Because it could not then identify a precise date for these actions, as to particular parcels of land, the Commission reserved the question of the date of extinguishment of aboriginal title to the Nevada lands for further proceedings (ibid.). In order to avoid complex litigation as to the extinguishment date for particular parcels within their aboriginal domain in Nevada, the Western Shoshones and the United States stipulated to an average extinguishment date of July 1, 1872, to serve as the valuation date for determining compensation due. The stipulation was approved by the Commission. See Western Shoshone Identifiable Group v. United States, 29 Indian Cl. Comm'n 5, 7 (1972). Following a trial in 1967, the Commission determined the fair market value of the Nevada lands acquired from the Western Shoshones in 1872 to have been $21,350,000 (id. at 124). 3. The claims proceedings went forward as the Commission considered unsettled monetary issues that had to be resolved prior to entry of a final award. Before that could occur, however, in April 1974 -- 23 years after the Western Shoshone claim was presented to the Commission, and 12 years after the Commission had found that the United States had extinguished the Shoshones' aboriginal title -- a group identified as the Western Shoshone Legal Defense and Education Association, with which the present respondents were associated, /5/ attempted to intervene in the claims proceeding to amend the pending claim. The would-be intervenor sought to limit the claim to reflect its position that Western Shoshone aboriginal title to a portion of the lands covered by the claim, including the sections now claimed by the respondents, remained unextinguished. The intervenor also sought a stay of the claims proceedings pending a decision in the instant case, which had then been filed in the district court. The Commission denied the motion to intervene, concluding, inter alia, that the question of extinguishment of aboriginal title had been presented to it and had been decided by it in its earlier ruling. Western Shoshone Identifiable Group v. United States, 35 Indian Cl. Comm'n 457, 464-467 (1975). The Commission also rejected the Association's charge that the Temoak Band was disabled from serving as the exclusive representative of the Western Shoshones in the claims proceeding because it had engaged in "collusion" within the meaning of Section 10 of the Indian Claims Commission Act, 25 U.S.C. (1976 ed.) 70i (35 Indian Cl. Comm'n at 463-476). The Court of Claims affirmed these rulings in Western Shoshone Legal Defense & Education Ass'n v. United States, 531 f.2d 495 (1976), specifically rejecting the Association's allegation of collusion in the Western Shoshones' conduct of the claims proceeding as both tardy and unsupported by the record (id. at 498-503). /6/ The Court of Claims also held that the extinguishment issue had been decided, on the basis of relevant evidence, by the Commission (id. at 500). This Court then denied certiorari. 429 U.S. 885 (1976). Throughout these proceedings the Western Shoshone Identifiable Group adhered to the position that the extinguishment issue had been decided, and correctly so, by the Commission. /7/ 4. Before further action could occur in the claims proceedings, the district court, on January 5, 1977, entered summary judgment in favor of the United States in the instant trespass action. Respondents had asserted that Western Shoshone aboriginal title to the lands they occupied remained unextinguished. But the district court held that this contention was barred by the collateral estoppel effect of the Indian Claims Commission's 1962 ruling that the United States had extinguished the aboriginal title of the Western Shoshones to their former lands in Nevada. United States v. Mary Dann and Carrie Dann, Civ. No. R-74-60 BRT (D. Nev. Jan. 5, 1977). The court of appeals reversed, United States v. Dann (Dann I), 572 F.2d 222 (9th Cir. 1978). The court of appeals held that res judicata (claim preclusion) had no application because the Claims Commission's ruling was interlocutory (572 F.2d at 225). In that connection the court of appeals observed that the statutory finality provision of the Indian Claims Commission Act, Section 22(a), 25 U.S.C. (1976 ed.) 70u(a), did not become operative until a final judgment was entered and payment made (572 F.2d at 226). The court of appeals also held that collateral estoppel (issue preclusion) did not bar litigation on the extinguishment question, asserting that "(w)hatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the litigation before the (Commission), the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided" (572 F.2d at 226-227 (footnote omitted)). The trespass case was accordingly remanded to the district court for further proceedings. 5. In the meanwhile the Commission proceedings continued to move forward. In November 1976, the Temoak Band, which had retained new counsel, reversed its long-held position and moved the Commission to stay all proceedings pending a determination elsewhere of the Western Shoshones' claim that they still retained aboriginal title to their former territory in Nevada. The attempt to delay the Commission proceeding, however, proved futile. On August 15, 1977, the Commission denied theWestern Shoshones' motion for a stay and entered final judgment, awarding them in excess of $26 million. Western Shoshone Identifiable Group v. United States, 40 Indian Cl. Comm's 305 (1977). The Court of Claims affirmed. Temoak Band of Western Shoshone Indians v. United States, 593 F.2d 994 (1979). The court "assume(d) that the Temoaks really desire to sweep the water back under the bridge, and that they have employed new counsel to assist them in this endeavor" (593 F.2d at 997). But the court emphasized the tardiness of the stay application that effected an abrupt reversal of over 25 years of litigation strategy by the Western Shoshones. And the Court of Claims observed that the Shoshones were not willing simply to abandon their claim outright. In these circumstances, the Court of Claims concluded that to "sidetrack()" the case in the manner proposed "would have been contrary to the statutory procedure under which the suit was brought, the intent and purpose of the Act, and the duty of the federal judicial system to employ its resources economically as well as to achieve the ends of jsutice speedily" (593 F.2d at 998-999). The court added (id. at 999): "If the Indians desire to avert the extinguishment of their land claims by final payment, they should go to Congress * * *." The Court of Claims noted (593 F.2d at 999), however, that subsequent to its prior decision upholding the denial of Shoshone dissidents' motion to intervene (see page 9, supra), Congress had amended the standing appropriation covering Court of Claims judgments, 31 U.S.C. 724a, so as to extend its coverage to Indian Claims Commission judgments. Accordingly, the Court of Claims observed, it no longer remained possible for the Western Shoshones to forestall operation of the preclusion provision of the Indian Claims Commission Act, Section 22(a), simply by persuading Congress to defer an appropriation, because the judgment would automatically be paid. Compare page 9 note 6, supra. But the Court of Claims emphasized that even after the judgment fund had been appropriated, Congress's plenary power to deal with Indians was sufficient to allow it to adjust the relations between the Western Shoshone and the United States in whatever manner it might deem appropriate, explaining (593 F.3d at 999): "The essential point of the matter is that the (Western Shoshones') true appeal is to legislative grace, not as of right to this court." This Court again denied certiorari. 444 U.S. 973 (1979). Although the Court of Claims had entered a temporary stay of its final order so as to allow the Secretary of the Interior to consider whether to support legislation establishing a reservation for the Western Shoshones, the stay was allowed to expire. The Secretary subsequently announced that he would not undertake an effort to establish a reservation. On December 6, 1979, the Clerk of the Court of Claims certified the Commission's final award to the General Accounting Office for payment. On December 19, 1979, the General Accounting Office certified to the Treasury that the sum of $26,145,189.89 was due from the United States on account of the judgment in the claims proceeding. Pursuant to the amended 31 U.S.C. (Supp. V 1981) 724a, the award was thereupon automatically appropriated and was paid into a trust account in the United States Treasury for the tribal claimant. See Western Shoshone Identifiable Group v. United States, 652 F.2d 41, 43 (Ct. Cl. 1981). /8/ The funds have been invested and the earnings credited to the claimant's account (id. at 50). 6. On April 25, 1980, the district court entered a final judgment in the Dann trespass case (Pet. App. 30a-32a). The district court, observing that this Court had denied certiorari in the claims proceedings and that the Commission's award had been certified for payment, held that the judgment of the Commission had become final and that "(t)he legal effect of the judgment for the purposes of the instant case is to extinguish the aboriginal Indian title to the lands of the Western Shoshone Indians upon which (respondents) assert the right to graze livestock * * *" (Pet. App. 31a). The court stated, however, that respondents had not been in trespass before December 6, 1979, because "(u)ntil the Indian Claims Commission judgment became final, such aboriginal Indian title had not been extinguished" (ibid.). /9/ The district court accordingly granted the government's request for injunctive relief but denied damages for past trespasses (ibid.). Both parties disagreed with the district court's disposition and reasoning. Cross-appeals were taken. Rspondents argued that collateral estoppel had no application to the extinguishment issue. The government responded that because of entry of final judgment in the claims proceeding, both res judicata and collateral estoppel barred the respondents' assertion that the Western Shoshones retain aboriginal title to their former territory. In addition, because the award had been paid into a trust fund for the Western Shoshone claimants, the government relied upon the preclusive effect of Section 22(a) of the Indian Claims Commission Act, which provides that "payment of any claim" determined by the Commission "shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." On its cross-appeal, the government argued that the Claims Commission decision and award established that extinguishment of the aboriginal title had occurred in the past, not merely as of the date of payment of the claims award, and barred relitigation of this issue. The government also argued that, assuming the issue was open for redetermination, various discrete federal actions had in fact extinguished aboriginal title long before initiation of the claims proceeding. /10/ Respondents challenged the government's extinguishment arguments, and denied that any preclusion doctrine was applicable. With regard to the effect of Section 22, respondents contended on appeal (for the first time in the litigation) that the award had not been "paid" within the meaning of that Section because, although it had been deposited into the Treasury on behalf of the Western Shoshones, it had not yet been distributed to individual Western Shoshones pursuant to the Distribution of Judgment Funds Act (DJFA), 25 U.S.C. 1401 et seq. b. The court of appeals reversed, ruling in favor of respondents on all issues (Pet. App. 1a-29a). Adhering to the alternative ground for its decision in Dann I, the court of appeals held that collateral estoppel was inapplicable to the extinguishment issue, stating that the extinguishment issue had not actually been litigated in the claims proceeding (Pet. App. 5a-7a). The court of appeals also declined to apply res judicata, reasoning that Section 22(a) of the Indian Claims Commission Act was intended to exhaustively set forth "the entire bar effect of a favorable claim determination" and thus to supplant the judge-made claim preclusion doctrine (Pet. App. 7a-10a). But the court of appeals also found the statutory bar of Section 22(a) inapplicable (Pet. App. 10a-16a). The court acknowledged (id. at 10a-11a) that the award had been automatically appropriated and had been credited to an interest bearing Treasury account in the name of the Western Shoshones. Nevertheless, because the funds had not been distributed to individual Western Shoshones, or applied to collective tribal purposes pursuant to the DJFA, the court concluded that the Western Shoshones' claim had not been paid for purposes of the statutory preclusion provision. The court's reasoning rested in part upon the view that the ordinary meaning of "payment" does not comprehend a "transfer of funds that leaves such significant legal blocks in the way of delivery to the payee" (Pet. App. 12a). But the court purported to rest its interpretation of Section 22(a) primarily upon the Court of Claims' comment, in its 1976 decision in Western Shoshone Legal Defense & Education Ass'n (see page 9 note 6, supra), that because the bar of Section 22 would not fall until payment of the claim was made, the majority of the Western Shoshones, if so inclined, could still seek, after entry of a final judgment, to have Congress defer an appropriation, thereby averting preclusion. The court of appeals recognized (Pet. App. 13a-14a) that this comment was based upon the fact that, as of 1976, no standing appropriation had been made applicable to judgments of the Claims Commission, and that Congress had subsequently made explicit provision for just such an arrangement. Yet the court refused to "conclude * * * that Congress by its change in the appropriation process intended to yield its final authority to affect the nature of an award before it acquires bar effect under section 70u" (Pet. App. 13a). Reasoning that the purpose of automatic appropriation of judgments was purely to eliminate a ministerial task, the court of appeals decided that Congress must have intended that the "payment" bar of Section 22 not go into effect until a plan for distribution of the judgment fund had been approved by Congress pursuant to the Distribution of Judgment Funds Act (Pet. App. 12a, 13a-14a). The court of appeals acknowledged that the Court of Claims had used language in its 1979 decision in Temoak Band of Western Shoshone Indians (see pages 11-12, supra), that "does suggest that," as a result of the intervening amendment to the standing appropriation act for judgments, "payment might take place in the absence of congressional action" (Pet. App. 15a). But because the Court of Claims had observed that the Western Shoshones could seek relief from Congress to preserve its title claim even after the claims judgment had been paid (see page 12, supra), the court of appeals chose to disregard the Court of Claims' interpretation of Section 22(a) itself, reasoning that "this channel of congressional relief is best kept open by an interpretation of section (22(a)) that does not bar collateral litigation, which might produce results highly informative in making its decision, until Congress has exercised its final discretion in dealing with the claim itself" (Pet. App. 15a). The court of appeals also rejected each of the government's arguments that, wholly apart from any preclusive effect of the claims judgment or award, the aboriginal title of the Western Shoshones to the lands at issue here had in fact been extinguished (Pet. App. 16a-28a). The court held that neither opening of the former Shoshone lands to settlement under the homestead laws or other public land laws, the establishment of the Duck Valley Reservation for the Western Shoshone in 1877, the administration of the lands occupied by respondents (and much of the remaining lands covered by the claims proceedings) by the BLM pursuant to the Taylor Grazing Act, 43 U.S.C. 315 et seq., nor the cumulative impact of all of these developments was sufficient to extinguish the aboriginal title of the Western Shoshones to the lands that are the subject of the trespass action. SUMMARY OF ARGUMENT The deposit to the Western Shoshones' account of $26,145,189.89 appropriated by Congress in satisfaction of the Indian Claims Commission award for the extinguishment of Western Shoshone title to their former domain bars respondents' claim that the Western Shoshones retain unextinguished aboriginal title to the lands in controversy in this ejectment action. The funds thus appropriated and deposited are now beneficially owned by the tribal group that brought the claims proceeding, rather than the United States, which has fully discharged its debt on the judgment and lost any beneficial interest in the funds used to satisfy that judgment. The United States, which holds the judgment fund solely as trustee for the Western Shoshones, may not convert, divert, diminish or mismanage these funds without incurring full monetary liability to the tribal owner. This transfer of ownership and the accompanying legal protections that render the Western Shoshones' interests secure establish that the claim determined in favor of the Western Shoshones by the Indian Claims Commission has been paid. Accordingly, under Section 22(a) of the Indian Claims Commission Act, the United States is entitled to a full discharge of any "claim()" or "demand() touching any of the matters involved in the (claims proceeding)." Respondents' claim that the Western Shoshones retain aboriginal title to the lands that are the subject of this ejectment action goes to the heart of the basis of the claims litigation and accordingly is precluded under a straightforward reading of the statutory bar. The court of appeals' contrary interpretation of the statute is insupportable. 1. Contrary to the court of appeals' view, distribution of the judgment fund to individual Shoshones forms no part of "payment" of the claim adjudicated by the Indian Claims Commission. That claim was maintained, as the Indian Claims Commission Act dictates, on behalf of a tribal group, the Western Shoshone Identifiable Group, rather than on behalf of any single individual or class of individuals. The resulting judgment fund, like the claim itself, belongs to the tribal entity and no individual Indian has any vested right therein. Thus payment was complete upon satisfaction of the judgment in favor of the tribal claimant. Distribution of the judgment fund to individual Indians, if Congress prefers that approach to expenditure of the tribal fund upon projects for the benefit of the tribe as a whole, is an exercise of Congress's power, as trustee, over Indian tribal property, which exists wholly apart from the United States' debt -- now discharged -- to the tribal entity. 2. The court of appeals' interpretation of Section 22(a) robs the judgment of the Indian Claims Commission of finality and thrusts upon Congress the task of deciding the merits of the Western Shoshone claims. The court of appeals' decision disregards the language of Section 22(a) which equates "payment" with appropriation of the judgment. The statutory language reveals that Congress expected preclusion to take effect immediately upon appropriation without any intervening process of application or distribution of the judgment fund. The court of appeals' reconstruction of the statutory scheme also flies in the face of the legislative history of Section 22(a). After careful consideration, Congress deliberately directed that Indian Claims Commission awards be treated as final judgments, rejecting arguments that it should reserve to itself the task of assessing the merits of underlying claims. Congress expected that the appropriation of funds in payment of such awards would be a routine ministerial task. The court of appeals thus erred in attributing to Congress the desire to preserve the opportunity for collateral litigation bearing upon the matters involved in the claims proceeding, so that it might consider the results of such litigation in connection with its appraisal of the claims award. 3. Statutory developments subsequent to the enactment of the Indian Claims Commission Act that bear upon the appropriation and distribution of judgment funds lend no support to the court of appeals' reading of Section 22(a). In fact, there are numerous indications that Congress understood that judgments subject to distribution had already been paid and satisfied when appropriated and deposited to the Tribe's account. a. Following enactment of the Indian Claims Commission Act, Congress recognized that the funds appropriated in satisfaction of the Commission's judgments were tribal funds. Eventually, Congress became concerned that the Secretary was too inclined to authorize pro rata distribution of tribal funds instead of applying the funds for collective benefit. Congress thus undertook supervision of the Secretary's application and distribution of these tribal judgment funds, and ultimately required that distribution be carried out prusuant to legislation. The numerous distribution Acts enacted in the 1960's and early 1970's invariably reflect Congress's understanding that the funds previously appropriated and deposited to the credit of the tribal claimant in the Treasury represented full satisfaction and payment of the underlying claims. In 1973 Congress found that the burden of separately legislating to effect distribution of each tribal judgment was excessive and unwarranted. By adopting the Distribution of Judgment Funds Act, Congress transferred the laboring oar in this area back to the Secretary of the Interior while retaining a veto over distribution plans. But, as with the numerous distribution acts that came before it, the generic provisions of the DJFA and its legislative history reflect Congress's understanding that distribution took place separate from, and subsequent to, the payment of the Claims Commission award. The final legislative development that the court of appeals thought relevant was the amendment in 1978 of the standing appropriations Act for judgments against the United States to cover Indian Claims Commission judgments. Although this change made it unnecessary for Congress to enact an appropriation bill to pay the judgment in cases such as this, there is no reason to conclude that Congress meant to create some new mechanism -- albeit unspecified -- for reviewing Indian claims that had gone to judgment before such judgments acquired preclusive effect. Congress never intended that the appropriations process serve as a court of last appeal from the decisions of the Claims Commission and Court of Claims. Thus Congress, in extending the standing appropriations mechanism, simply relieved itself of an essentially ministerial chore, and did not convert the distribution process contemplated under the DJFA into a form of legislative review of Indian claims. ARGUMENT THE DEPOSIT OF FUNDS SATISFYING THE INDIAN CLAIMS COMMISSION AWARD INTO A TRUST ACCOUNT FOR THE WESTERN SHOSHONES BARS RESPONDENTS FROM ASSERTING THAT THE SHOSHONES RETAIN ANY INTEREST IN THE LANDS COVERED BY THE AWARD Sectoin 22(a) of the Indian Claims Commission Act provides, in relevant part: The payment of any claim, after its determination in accordance with this (Act), shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. This statutory language bars respondents' assertion of Western Shoshone title as a defense to the present ejectment action. As the court of appeals acknowledged (Pet. App. 10a-11a, 13a), "(t)he amount of the (Indian Claims Commission) award (w)as * * * credited to a Treasury account for the benefit of the Western Shoshone" in December 1979 pursuant to 31 U.S.C. (Supp. V 1981) 724a, which provides for automatic appropriation of funds in satisfaction of Indian Claims Commission awards. As a consequence of this transfer, the Western Shoshones have acquired a vested property right to the beneficial ownership of the judgment fund. The United States may not convert the trust fund to its own purposes without incurring a Fifth Amendment obligation to pay just compensation to its rightful owner, the Western Shoshones. See United States v. Sioux Nation, 448 U.S. 371, 408-409 (1980); Shoshone Tribe v. United States, 299 U.S. 476 (1937). Moreover, as the Western Shoshone Nat'l Council concedes (Am. Br. in Opp. 15-16), the United States may generally be held accountable, as a trustee, for mismanagement of the trust fund. See United States v. Mitchell, No. 81-1748 (June 27, 1983), slip op. 19; United States v. Shoshone Tribe, 304 U.S. 111, 115-116 (1938); Angle v. United States, 709 F.2d 570, 574-575 (9th Cir. 1983); Rogers v. United States, 697 F.2d 886, 890 (95th Cir. 1983). /11/ The United States is also obligated to earn interest upon such tribal funds. See 25 U.S.C. 161, 161a, 162a; United States v. Mitchell, slip op. 17 n.24, 18 n.29. In short, the beneficial interest in the funds appropriated in satisfaction of the Indian Claims Commission award has been shifted from the United States to the Western Shoshone Indians. At the time that shift occurred, In December 1979, the role of the government with respect to the funds involved was converted from that of the Indians' judgment debtor to its familiar one of trustee of Indian property. See Sioux Nation, 448 U.S. at 407-409; Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 85-86 (1977). Conversely, the Western Shoshones were no longer judgment creditors of the United States; rather the judgment had been satisfied, and beneficial ownership of the judgment fund was theirs. /12/ In sum, the "claim" that had been "determin(ed) in accordance with" the Indian Claims Commission Act had been paid. Pursuant to Section 22(a) of that Act the United States was thereupon entitled to "full discharge," not only of its obligation to pay the award of the Commission, but, as well, of "all claims and demands touching any of the matters involved in the controversy." In this ejectment action the respondent's defense to the United States' claim is, in their own words, "an assertion of Western Shoshone title" (Br. in Opp. 2) to lands which undisputedly formed part of the area covered by the award of the Indian Claims Commission. See also page 4, supra. By any standard, this is a "claim" or "demand" that touches intimately upon the matters at issue in the claims proceeding. Accordingly, payment of the judgment fund into a trust account for the Western Shoshones bars respondents' assertion of subsisting Western Shoshone title to the lands in contention here. The court of appeals did not suggest that the payment bar of Section 22(a) has no application to this ejectment action; rather it plainly understood that upon payment of the claim, the defense to ejectment would be barred (see Pet. App. 11a, 15a-16a). However, while labeling the question "a close one" (id. at 11a), the court of appeals held that the Western Shoshone's claim has yet to be paid, reasoning that "payment" for purposes of Section 22(a) does not occur until such time as a plan for distribution of the judgment fund to individual Indians is "actually put into effect" (Pet. App. 11a-12a). /13/ The court of appeals offered two primary reasons for declining to recognize that the Western Shoshones' claim has been paid. First, the court suggested that prior to establishment of a plan for distribution of the judgment fund, the "ordinary meaning" of payment is not satisfied because of what it perceived to be "significant legal blocks in the way of delivery to the payee" (Pet. App. 12a). Second, the court of appeals reasoned (Pet. App. 15a-16a) that it would be better policy to allow "collateral litigation" as to the continuing existence of Western Shoshone aboriginal title, "which might produce results highly informative to Congress," to go forward, so that Congress could take those results into account in legislation. The court of appeals thus chose to interpret Section 22(a) to defer the finality of payment until Congress acts with respect to a distribution plan. The flaw in this reasoning is apparent. The court of appeals failed to recognize that the "claim" at issue is tribal rather than individual, and accordingly proceeds upon a mistaken theory as to the identity of the "payee." And the court of appeals fails to observe the fundamental distinction between the role of the government as a judgment debtor upon a claim adjudicated adversely to the United States, and the analytically distinct capacity of the United States as trustee of the tribal judgment fund created by payment of such a judgment. Moreover, the court of appeals' reconstruction of the statutory scheme created by the Indian Claims Commission Act and related legislation so as to "preserve" for Congress the opportunity to take a final look at the merits of the claim is contrary to the language, legislative history and purpose of that Act, and is unsupported by the Distribution of Judgment Funds Act. 1.a. Contrary to the view of the court of appeals, the fact that the judgment fund has yet to be distributed to individual Western Shoshones has no bearing upon the question whether the Western Shoshones' claim adjudicated by the Indian Claims Commission has been paid. Indeed, the court's suggestion that the absence of a distribution plan is a "legal block() in the way of delivery to the payee" (Pet. App. 12a) confirms that the court of appeals has misapprehended both the nature of the "claim" to be paid and the identity of the "payee." It is accordingly unsurprising that the court of appeals also mistook the meaning of payment under Section 22(a). The Western Shoshones' suit seeking compensation for the extinguishment of their aboriginal title, maintained by them for more than a quarter-century against the United States pursuant to the Indian Claims Commission Act, was not an action for compensation upon an aggregation of separate, but related, individual claims. Rather, it was an action seeking an award on behalf of a common tribal entity, the Western Shoshone Identifiable Group, that was recognized by the Indian Claims Commission. See page 6, supra. See Delaware Tribal Business Comm. v. Weeks, 430 U.S. at 85; Fort Sill Apache Tribe v. United States, 477 F.2d 1360, 1362 (Ct. Cl. 1973), cert. denied, 416 U.S. 993 (1974); Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 913-914 (Ct. Cl. 1963). As this Court explained in Weeks (430 U.S. at 85): It was th(e) tribal entity, represented * * * before the Indian Claims Commission (by a representative party), that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it. Indeed, the Indian Claims Commission is not empowered to hear individuals' claims, but may only adjudicate claims held by an "Indian tribe, band, or other identifiable group." 25 U.S.C. Sections 70a, 70i (additional citation omitted). Here, as in Weeks, the claim belonged to the tribal entity. Likewise here, as there, the "appropriated funds" which are "the means of compensating that tribal entity" are "tribal property" in which "individual Indians (hold) no vested rights" (430 U.S. at 85). Because the claim covered by Section 22(a) is the Western Shoshones' tribal claim, upon which only the tribal entity is the proper payee, payment was accomplished for purposes of Section 22(a) when beneficial ownership of the judgment fund was transferred to the Western Shoshones in December 1979. Distribution of the tribal fund to individual Western Shoshones forms no part of the process of payment of the government's judgment debt to the Shoshones. Rather, upon payment to the tribe, the judgment fund became "tribal property" (Weeks, 430 U.S. at 85), which, like all Indian tribal property, is "subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes" (ibid.). /14/ The distribution process (see pages 38-43, infra) is simply an expression and application of that authority over tribal property. Its pendency accordingly is not in any respect inconsistent with the status of the Western Shoshone claim as one that has been paid. Indeed, absent payment of the tribal claim there would be nothing to distribute. /15/ b. The court of appeals' decision also appears to have been influenced by the fact that the trust fund containing the proceeds of the claims litigation is on deposit in an account in the United States Treasury, and has not been released directly to the Western Shoshone group (Pet. App. 11a). /16/ The inference drawn by the court of appeals that the judgment has, for these reasons, not been paid is simply incorrect. As previously noted (see pages 23-24, supra), and as the Western Shoshone Nat'l Council acknowledges (Am. Br. in Opp. 15-16), the United States does not hold the judgment fund as a beneficial owner, but serves as trustee for the Western Shoshones, the beneficial owner. And the terms of that trusteeship, which include legal liability for conversion or mismanagement of the tribal funds, as well as the obligation to make the funds productive, confirm that the ownership interest of the Western Shoshones in the judgment fund is both secure and concrete. See pages 23-24, supra. Nor is there anything unusual about the fact that the Western Shoshones' funds are presently held in trust, rather than released directly to some tribal entity. /17/ It is commonplace for the United States to serve as trustee of Indian property -- real or personal. See United States v. Mitchell, slip op. 19; United States v. Shoshone Tribe, 304 U.S. 111, 115-117 (1938) (recognized title to land); Oneida Indian Nationa v. County of Oneida, 414 U.S. 661, 667 (1974) (aboriginal Indian title to land); 25 U.S.C. 348. In doing so, the United States is simply exercising its authority to govern the management and distribution of such Indian property. See page 28 & note 14, supra. 2. The court of appeals' conclusion that, as a matter of policy, the payment bar of Section 22(a) should be interpreted to permit litigation of the question whether Western Shoshone aboriginal title has been extinguished in this case, is contrary to the language, legislative history and purpose of Section 22(a). Consideration of these materials compels the conclusion that the tribal claim of the Western Shoshones has been paid. a. The plain language of Section 22(a) requires the conclusion that the appropriation of funds in satisfaction of the Western Shoshone award constituted the "payment" of the claim, which in turn had the effect under Section 22(a) of precluding any further claims and demands against the United States touching upon any of the matters involved in the Western Shoshone suit. The first paragraph of Section 22(a) provides that a report of the Commission to Congress determining that a "claimant" -- i.e., a tribal entity -- is entitled to recover is deemed a "final judgment" of the Court of Claims. That initial paragraph further "authorize(s) to be appropriated such sums as are necessary to pay the final determination of the Commission." The statutory language thus directly equates appropriation of the amount of an award with payment thereof. This equation is confirmed by the absence from Section 22 -- and the Indian Claims Commission Act as a whole -- of any special provision to compel delivery of appropriated funds to any tribal government entity of the claimant or to regulate distribution to individual tribal members. Rather, Congress plainly assumed that payment of a tribal or group claim was complete upon appropriation to the account of the tribal group and presumed that the use or distribution of the tribe's funds was governed by existing law. See pages 38-43, infra. Indeed, immediately following the language authorizing appropriations, the second paragraph of Section 22(a), directly relevant here, provides that the "payment of any claim" after its determination by the Commission shall be a full discharge of the United States of all claims or demands relating to the controversy. Absent any specialized statutory directive governing the use or distribution of appropriated tribal judgment funds, that process might take considerable time and might not have any clearly demarcated ending point. Thus, it is apparent that the statutory design does not contemplate that any further steps be completed following appropriation of the tribal judgment fund in order to effect "payment." It is instead clear that the "payment" of the "claim" occurs at the point of the appropriation mentioned in the first paragraph of Section 22(a) and the resulting deposit of the sums involved in a special account for the tribal claimants' benefit. Congress plainly assumed that payment of a claim was complete when these events had occurred, making the judgment fund "tribal property" (Weeks, 430 U.S. at 85), subject, of course, to the usual exercise by Congress of its separate authority, as trustee, to govern distribution and management of such Indian property. See page 28, supra. There is simply no suggestion in the statutory text or legislative history of the Indian Claims Commission Act that any departure from this established pattern was contemplated. /18/ b. The legislative history of the Indian Claims Commission Act confirms that Congress did not intend to reserve to itself the opportunity to take a "final look" (Pet. App. 12a) at the merits of the underlying claim that the court of appeals' decision "preserves" by treating a judgment as unpaid until a distribution plan is accepted by Congress. Therefore, by thrusting upon Congress responsibility for deciding whether the payment bar of Section 22 should be raised against the Western Shoshones' claim that they retain aboriginal title, the court of appeals' decision frustrates a fundamental purpose of the Indian Claims Commission Act. One of the key objectives of that Act was to relieve Congress of the burden of assessing the merits of Indian claims, as it previously had done by considering the requests of various tribal entities for passage of special jurisdictional acts. See H.R. Rep. 1466, 79th Cong. 1st Sess. 6 (1945). To allow collateral litigation to go forward here upon an issue central to the Indian Claims Commission proceedings on the theory that the "results" would be "highly informative to Congress" (Pet. App. 15a) plainly disregards the considered congressional judgment embodied in the Act. Indeed, the legislative history shows that Congress deliberately rejected the suggestion that it retain for itself plenary authority to review the claims, treating the Commission's decisions as mere recommendations. Congress adopted instead the language of Section 22(a), which treats the decision of the Commission "as a final judgment of the Court of Claims" payable subject only to the formality of the appropriations process. The House bill, H.R. 4497, 79th Cong., 1st Sess. (1945), provided that the report of the Indian Claims Commission, filed with Congress, "shall have the effect of a final judgment and shall be paid in like manner as are judgments of the Court of Claims" (Section 22; see 92 Cong. Rec. 5322 (1946)). The House Report also reflects Congress's expectation that a Claims Commission award would be "treated as a final judgment" and be routinely paid "in like manner as are judgments of the Court of Claims" (H.R. Rep. 1466, supra, at 13). Significantly, the Department of Justice criticized this provision, arguing that "(i)n view of the vague basis upon which many of the claims presented to the Commission would be predicated" the "provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government" (id. at 17). The House of Representatives, however, was unpersuaded. While its Report observed that Congress would retain its traditional power to make or withhold appropriations to pay a judgment, it also emphasized that "the question of the merits of any case is left to the Commission and the courts" and noted its expectation that appropriations would be routinely made. Id. at 10, 13; see also 92 Cong. Rec. 5313 (1946) (remarks of Rep. Jackson). The Senate was somewhat more receptive to the Department of Justice argument and deleted the language of the House bill that provided that the Commission's report should have the effect of a final judgment and should be paid like any other Court of Claims judgment. See S. Rep. 1715, 79th Cong., 2d Sess. 6 (1946); 92 Cong. Rec. 9218 (1946). But the Senate version was rejected by the Conference Committee, which adopted the present statutory language "(i)n order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed, have the same finality as judgments of the Court of Claims." H.R. Rep. 2693, 79th Cong., 2d Sess. 8 (1946). The statutory authorization for appropriations found in the first paragraph of Section 22(a) was added to make this purpose clear (ibid.). The upshot is that in 1946 Congress meant to reserve to itself only the routine exercise of its authority to make appropriations. Congress did not contemplate that it would examine the merits of claims proceedings at this juncture. The court of appeals' decision thus would rewrite the Indian Claims Commission Act, adopting a regime that Congress deliberately rejected. /19/ Congress' intention to put an end to lingering Indian land disputes by enactment of the Indian Claims Commission Act is thus clear. Indeed, the House Report flatly asserts that "the chief purpose of the present bill (is) to dispose of the Indian claims problem with finality" (H.R. Rep. 1466, supra, at 10). As the Court of Claims remarked in Temoak Band of Western Shoshone Indians v. United States, 593 F.2d at 998: There can be no doubt that Congress passed the Indian Claims Commission Act * * * with the object of drawing in all claims of ancient wrongs, respecting Indians, and to have them adjudicated once and for all. * * * /20/ It provided in Section 22 that payment of a claim as assessed under the Act would discharge not only the specific claim made, but all claims and demands touching any of the matters involved in the controversy. The object was not pecuniary * * *. Congress had long-term political objects, in the non-pejorative sense of the word "political," that are frustrated by continued delay * * *. Against this background, the only sensible construction of Section 22 is that the preclusive effect of the Commission's judgment arises at the definite and readily ascertainable point when that judgment is satisfied by an appropriation of funds and all proceedings under the Indian Claims Commission Act itself are therefore terminated, rather than at some unspecified and indefinite future date when a distribution of the tribal award to those deemed eligible to share in it might be made pursuant to some other statute or other authority. Section 22 was intended to protect the United States from further claims or demands by the claimant in Commission proceedings, the interested Tribe, and persons, such as respondents herein, claiming through the Tribe. The protection logically should be afforded when the United States has fully discharged its obligations under the Act to the claimant (see page 24 & note 12, supar). Our straightforward interpretation of Section 22(a) is consistent, moreover, with this Court's recent reaffirmation of the special rigor with which the policies of preclusion are to be applied in matters involving title to land. "Our reports are replete with reaffirmations that questions affecting titles to land, once decided, should no longer be considered open." Arizona v. California, No. 8, Orig. (Mar. 30, 1983), slip op. 13. Indeed, "(t)he policies advanced by the doctrine of res judicata perhaps are at their zenith in cases concerning real property, land and water." Nevada v. United States, No. 81-2245 (June 24, 1983), slip op. 17-18 n.10. The decision of the court of appeals, which invites the wholesale litigation of subsisting Indian title to land where compensation has been awarded for extinguishment of that title, and which robs of practical effect the statutory bar to such litigation, cannot be reconciled with this teaching. The court of appeals' decision gratuitously casts a cloud of uncertainty upon federal (and private) titles to land in a vast area of more than 22 million acres. /21/ 3. The court of appeals seems also to have been of the view that legislative enactments pertaining to the appropriation of tribal judgments and distribution of judgment funds subsequent to the Indian Claims Commission Act somehow lend support to its conception of the proper relationship between Congress and the claims proceedings before the Commission (see Pet. App. 13a-14a). A review of the pertinent legislation and its antecedents reflects that the court of appeals' assessment was erroneous. a. Indian claims judgments obviously are different from most, if not all, other judgments of the Court of Claims in that they are made on behalf of a collective entity, and therefore pose questions of application or distribution. In the period following enactment of the Indian Claims Commission Act, as judgments were rendered, the Secretary of the Interior treated the judgment funds appropriated by Act of Congress, which were deposited to the credit of the tribe in the Treasury, as tribal property, which he, as fiduciary for the tribe, had authority to distribute or to apply for the benefit of the Tribe. See H.R. Rep. 93-377, 93d Cong., 1st Sess. 4 (1973); 119 Cong. Rec. 32075 (1973) (remarks of Rep. Meeds); see also 25 U.S.C. 118. /22/ Congress became concerned, however, that in application of Indian judgment funds the Secretary had given undue emphasis to distribution of pro rata shares to individual tribal members and insufficient attention to expenditures for tribal development and education. H.R. Rep. 93-377, supra, at 4. Congress accordingly acted to oversee the Secretary's performance of his fiduciary duties. Beginning in 1963, the Interior Department Appropriations Act carried language that required the Secreatry to submit distribution plans to Congress to allow it an opportunity to exercise a veto. See, e.g., Department of the Interior and Related Agencies Appropriation Act, 1963, Pub. L. No. 87-578, 76 Stat. 338. And commencing in 1965, this requirement was further stiffened by precluding distribution absent affirmative authorizing legislation. Department of the Interior and Related Agencies Appropriation Act, 1965, Pub. L. No. 88-356, 78 Stat. 276. Significantly, these appropriations riders were all phrased as restrictions upon the authority of the Secretary, otherwise recognized, to advance "tribal funds" to the beneficially interested tribe (emphasis added). In short, the appropriated judgment funds were regarded as tribal funds, albeit not immediately subject to disposal by the tribe in an unfettered manner. Congress merely wished to oversee the Secretary's performance of his fiduciary duty to manage this tribal property. b. Having asserted its authority to govern distribution in this manner, Congress imposed a substantial burden on itself, which grew as the number of claims judgments grew. Substantial numbers of distribution Acts were enacted, honeycombing the pages of the United States Code. These Acts uniformly reflect Congress's understanding that the funds subject to distribution had already been paid and the underlying judgment satisfied. /23/ Ultimately, in 1973, Congress found it necessary to shift much of the responsibility back to the Secretary by enacting the Distribution of Judgment Funds Act of 1973, 25 U.S.C. 1401 et seq. Under that Act, the Secretary was directed to develop distribution plans after consultation with the affected tribe or group, and to persent them to Congress for its review. A plan so proposed would go into effect unless vetoed by Congress within 60 days. Nothing in the language or the legislative history of the DJFA provides the slightest support for the court of appeals' view that adoption of a distribution plan is necessary to effect payment for the purposes of Section 22(a) of the Indian Claims Commission Act. Indeed, Section 1 of the DJFA, 25 U.S.C. 1401, describes the funds subject to the distribution mechanism as "funds appropriated in satisfaction of a judgment of the Indian Claims Commission or the United States Court of Claims in favor of any Indian tribe, band, group, pueblo, or community," thereby confirming that the appropriation of the judgment fund, in trust, for the tribal claimant was regarded as satisfaction of the judgment. /24/ Furthermore, the title of the House Report describes the bill as "providing for the Distribution of Funds Appropriated in Satisfaction of Certain Judgments of the Indian Claims Commission * * *" (H.R. Rep. 93-377, 93d Cong., 1st Sess. 1 (1973)), and similar language is found in the body of the report (id. at 3). Moreover, the House Report makes clear Congress's understanding that: Funds appropriated to satisfy judgments of the Indian Claims Commission or the Court of Claims on behalf of Indian plaintiffs are deposited in the United States Treasury to the credit of the plaintiff tribe. Id. at 4. The DJFA was not intended to alter this arrangement in any respect. Rather, the new procedure was simply intended to be a more efficient means of determining which individual Indians were to receive a share of the tribal trust fund and to relieve the Congress of the burden of primary responsibility for devising distribution plans. See S. Rep. 93-167, 93d Cong., 1st Sess. 2 (1973); H.R. Rep. 93-377, supra, at 4-5; 119 Cong. Rec. 32075 (1973) (remarks of Rep. Lujan). Congress plainly did not intend, by enacting the DJFA, to institute a new level of congressional review of the merits of the claims underlying appropriated judgments. The DJFA was intended to relieve Congress of a burden, not to create new legislative tasks. c. As of 1973, it was still necessary for Congress to appropriate funds to pay a judgment entered by the Indian Claims Commission. This was true because Section 22 of the Indian Claims Commission Act merely authorized appropriations to pay judgments under the Act, but did not provide for automatic appropriations. Moreover, Section 1302 of the Supplemental Appropriations Act, 1957, ch. 748, 70 Stat. 694-695, as amended, 31 U.S.C. 724a, which established a standing or automatic appropriation to pay judgments of the Court of Claims, was at that time inapplicable to such judgments both because it was unclear whether they should be regarded as judgments of the Court of Claims, and because the automatic appropriation provision then applied only to awards not in excess of $100,000. See 31 U.S.C. (1970 ed.) 724a. In 1977, however, the $100,000 ceiling was eliminated by the Supplemental Appropriations Act, 1977, Pub. L. No. 95-26, 91 Stat. 96-97. See H.R. Rep. 95-68, 95th Cong. 1st Sess. 142, 182-183, 184 (1977); S. Rep. 95-64, 95th Cong., 1st Sess. 173, 204-206 (1977). And in 1978, the automatic appropriation was explicitly made applicable to judgments of the Indian Claims Commission by the Supplemental Appropriations Act, 1978, Pub. L. No. 95-240, 92 Stat. 116-117. See S. Rep. 95-564, 95th Cong., 1st Sess. 76-77 (1977); 31 U.S.C. (Supp. V. 1981) 724a. The combined effect of the 1977 and 1978 amendments to 31 U.S.C. 724a was to make it unnecessary for Congress to act to appropriate funds to pay judgments of the Indian Claims Commission. Rather, once the final award was certified by the Comptroller General in the General Accounting Office, the appropriation was automatic. The legislative history of the 1977 and 1978 amendments to Section 724a in no respect suggests that Congress intended to reserve to itself an opportunity to reconsider the claim by deferring the date of "payment" for purposes of Section 22(a) until the date a distribution plan became effective. Rather, Congress's sole concern was to dispense with a chore regarded as ministerial. H.R. Rep. 95-644, 95th Cong., 1st Sess. 53 (1977); S. Rep. 95-564, supra, at 76. It is simply irrational to suppose -- as the court of appeals' analysis necessarily does -- that the moment of "payment" somehow sprang from the point of appropriations to the point where a distribution plan was adopted, there being no hint in the legislative history of either the DJFA or the amendments to the standing appropriation Act that any such change was intended. The court of appeals, however, reasoned (Pet. App. 31a-14a) that because Congress's expressed purpose for providing for automatic appropriations was simply to relieve itself of a routine legislative step, it could not conclude that Congress "by its change in the appropriation process intended to yield its final authority to affect the nature of an award before ti acquires bar effect under (Section 22(a))." This is simply circular reasoning. Cf. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., No. 82-1005 (June 25, 1984), slip op. 23 n.34. Unless one assumes that prior to 1978, Congress intended to exercise authority to reconsider the underlying merits of a claim adjudicated by the Indian Claims Commission in connection with its action upon appropriations, there is no reason to expect the legislative history of the standing appropriations Act amendment to contain any evidence that Congress had affirmatively decided to abandon that practice. Because the legislative history of the Indian Claims Commission Act clearly demonstrates that Congress did not contemplate undertaking such review (see pages 33-35, supra), and there is no evidence that Congress routinely undertook such review in passing appropriations measures to pay Indian Claims Commission awards, the court of appeals' reasoning collapses. d. There appears to be some suggestion in the court of appeals' opinion (see Pet. App. 14a-16a) that to raise the bar of preclusion here is somehow unfair because the Court of Claims, in its 1976 decision in Western Shoshone Legal Defense & Education Ass'n, 531 F.2d at 503 n.16, had indicated that Western Shoshones opposed to the presentation of the full tribal claim to the Indian Claims Commission proceedings could, by persuading Congress to defer an appropriation to pay an award by the Commission, avert the preclusive effect of Section 22(a), while pursuing collateral litigation. See page 9 note 6, supra. And respondents appear to suggest (Br. in Opp. 6, 8-9) that the bar of Section 22(a) should not apply here because they were entitled to pursue the strategy outlined by the Court of Claims. But none of this provides any basis for deviating from the statutory regime. As the Court of Claims observed in 1979, in Temoak Band of Western Shoshone Indians, 593 F.2d at 999, the Congress made the payment bar of Section 22(a) automatic in operation by the 1978 amendment to the standing appropriation Act. Although this had the practical effect of eliminating a convenient vehicle that formerly had existed for the efforts of Western Shoshone to avert preclusion -- congressional action upon an appropriations measure -- the Court of Claims correctly observed that the power of Congress to grant (or deny) the Shoshones the relief sought was entirely unaffected (953 F.2d at 999): In view of its plenary power over Indian tribal property * * * we have no doubt that even after payment (congressional) action could be effective. Thus, both before and after the change in the appropriation mechanism, the Western Shoshones' "true appeal is to legislative grace" (ibid.). /25/ Because that avenue always remains open, see Sioux Nation, 448 U.S. at 390-407, it is particularly inappropriate for a court to blunt the intended effect of Section 22(a) simply because it thinks the results of litigation on the title issue would be enlightening to Congress or believes that enactment of relief legislation would be desirable. Cf. Block v. North Dakota ex rel. Board of University & School Lands, No. 81-2337 (May 2, 1983), slip op. 18-19. The rendering of advice to Congress about possible future legislative action is not within the authority of the federal courts. See Muskrat v. United States, 219 U.S. 346 (1911). The courts are not empowered to "consider the merits of a claim which Congress has not authorized respondents to raise." California v. Sierra Club, 451 U.S. 287, 298 (1981). CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General F. HENRY HABICHT, II Assistant Attorney General JOSHUA I. SCHWARTZ Assistant to the Solicitor General JACQUES B. GELIN DEAN K. DUNSMORE ROBERT L. KLARQUIST Attorneys JULY 1984 /1/ The Act does not appear in the 1982 version of the United States Code because, pursuant to 25 U.S.C. (1976 ed.) 70v, the existence of the Indian Claims Commission terminated on Setpember 30, 1978. The residual docket of the Commission was transferred to the United States Court of Claims by 25 U.S.C. (Supp. V 1981) 70v-3. Neither this transfer nor the subsequent reorganization of the Court of Claims into the United States Claims Court and the United States Court of Appeals for the Federal Circuit has any bearing upon the question presented. /2/ Title 31 has now been recodified. The counterpart to former 31 U.S.C. (Supp. V 1981) 724a is codified at 31 U.S.C. 1304(a). Because the Indian Claims Commission no longer exists (see note 1, supra), the recodified provision omits all reference to Indian Claims Commission awards on the theory that the provision is no longer of current relevance. See H.R. Rep. 97-651, 97th Cong., 2d Sess. 62 (1982). /3/ In 1863 the United States negotiated five separate treaties with the various bands of Shoshone Indians. Four of these, including the Treaty of Ruby Valley, 18 Stat. 680 (1869), with the Western Shoshones, and the Treaty of Box Elder, 13 Stat. 663 (1863), with the Northwestern Shoshones, ultimately were enacted into law. See Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 340-345 (1945). Years later, the Northwestern Band of Shoshone Indians brought an action, pursuant to a special jurisdictional act, asserting that they had wrongfully been divested of lands that they claimed had been confirmed to them by the Treaty of Box Elder. In Northwestern Bands of Shoshone Indians, supra, this Court held that the Treaty of Box Elder did not recognize or confirm Indian title to any lands. Although only the Treaty of Box Elder was directly at issue in Northwestern Bands of Shoshone Indians, the Court's opinion discusses all of the treaties entered with the Shoshones in 1863, which were "similar in form" (324 U.S. at 343). And the Court's conclusion that no recognized title had been conferred is stated in terms applicable, as well, to the Treaty of Ruby Valley (324 U.S. at 348): Nowhere in any of the series of treaties is there a specific acknowledgment of Indian title or right of occupancy. It seems to us a reasonable inference that had either the Indians or the United States understood that the treaties recognized the Indian title to these domains, such purpose would have been clearly and definitely expressed by instruction, by treaty text or by the reports of the treaty commissioners, to their superiors or in the transmission of the treaties to the Senate for ratification. Unlike taking a land in which a tribe holds recognized title, which implicates the constitutional guaranty of just compensation, see, e.g., United States v. Shoshone Tribe, 304 U.S. 111, 115-116 (1938), the United States may extinguish aboriginal Indian title without incurring any obligation under the Constitution to pay compensation. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-285 (1955). Accordingly, the Shoshones' claim for compensation was wholly dependent upon the broad provisions of the Indian Claims Commission Act (see page 5, supra), enacted after Northwestern Bands of Shoshone Indians was decided. /4/ See Shoshone Tribe v. United States, 11 Indian Cl. Comm'n 387, 388, 408-412, 421-435, 446 (1962); Western Shoshone Identifiable Group v. United States, 29 Indian Cl. Comm'n 5, 6, 63 (1972); Western Shoshone Legal Defense & Education Ass'n v. United States, 531 F.2d 495, 499 (Ct. Cl.), cert. denied, 429 U.S. 885 (1976). /5/ See Amicus Br. of the Western Shoshone Legal Defense and Education Ass'n, Mary Dann and Carrie Dann at 2, Western Shoshone Identifiable Group v. United States, No. 79-340 (1979 Term); see also Pet. App. 3a; Br. in Opp. 15 n.3. /6/ The Court of Claims observed, in an aside (531 F.2d at 503 n.16), that because Section 22(a) of the Indian Claims Commission Act does not bar collateral attack upon determinations underlying Claims Commission decisions until a claim has been paid, the majority faction of the Western Shoshones retained the option, if it was so advised, of asking Congress to delay making an appropriation to pay the claims award while seeking to litigate its title claim. /7/ See, e.g., Br. in Opp. for the Western Shoshone Identifiable Group at 4-9 & n.14, Western Shoshone Legal Defense & Education Ass'n v. United States, No. 76-90 (1976 Term). /8/ The cited case, the third decision of the Court of Claims in the claims proceedings initiated by the Western Shoshones, addressed the award of attorneys fees to be paid to the attorneys who represented the Western Shoshones in those proceedings. In this last round of the claims litigation, the Court of Claims rejected the contention of the various Shoshone organizations (including the Western Shoshone Sacred Lands Association, which has participated in this case as amicus curiae (see Am. Br. of Western Shoshone Nat'l Council 2)) that fees should be denied to the attorneys responsible for the award of over $26 million. After carefully reviewing the course of the claims proceedings, 652 F.2d at 43-46, the Court of Claims explained that the central premise of the opposition to the award of attorney's fees -- that "certain lands on which (the Western Shoshones) had a right of occupation and use were actually not 'taken'" (652 F.2d at 47) is: identical to that previously asserted and rejected both before the Indian Claims Commission and this court. It has been finally determined in this litigation that the (Western Shoshones') lands were taken by March 3, 1853 (California area) and July 1, 1872 (Nevada area). This is the law of this case and cannot be ignored, evaded or relitigated in the process of determining the amount, if any, of attorneys' fees and expenses which are to be paid. (Id. at 46.) The Court of Claims recognized the existence of dissension among the Western Shoshones as to the wisdom of the course of litigation that had been followed, but explained (652 F.2d at 47) that this situation was addressed in the prior decisions rendered in this matter and ruled not to constitute a valid basis for reopening or rejecting the determinations made, including those as to the taking of the land. Instead these determinations have been affirmed. In its decision on attorney's fees the Court of Claims also addressed the 1980 district court decision in the instant trespass case which had, by then, been entered, and which suggested that the Western Shoshones' aboriginal title had not been extinguished prior to entry of the Indian Claims Commission's final award (see page 14, infra). The Court of Claims explained (652 F.2d at 47) that this aspect of the district court's ruling was "not in accord with the final determination reached" in the claims proceedings. /9/ No findings of fact or conclusions of law were entered to support this determination. /10/ In Northwestern Bands of Shoshone Indians this Court stated (324 U.S. at 346) that the United States has treated * * * Shoshone territory as a part of the public domain. School lands were granted. 13 Stat. 32; 26 Stat. 216; 28 Stat. 109. National forests were freely created. 33 Stat. 2307; 34 Stat. 3099, 3198, 3206, 3247, 3251; 37 Stat. 1678. The lands were opened to public settlement under the homestead laws. Report of the Commissioner of the General Land Office (1868), pp. 55, 59, 63; Report of the Commissioner of the General Land Office (1869), pp. 163, 168, 177. Thus, we have the administration of this territory by the United States proceeding as though no Indian land titles were involved. /11/ In light of Mitchell, Angle and Rogers, the reliance of the Western Shoshone National Council (Am. Br. in Opp. 14 n.14) on Whiskers v. United States, 600 F.2d 1332 (10th Cir. 1979), cert. denied, 444 U.S. 1078 (1980), is misplaced. We note that the court of appeals in Whiskers agreed that the United States generally is liable for damages for failure properly to perform fiduciary obligations as to property held in trust, thereby anticipating in that respect this Court's decision in Mitchell. The result in Whiskers rests upon the court's conclusion that the funds there involved were not, in fact, held subject to trust obligations. That conclusion rested upon reasoning not advanced by the government. See 600 F.2d at 1336. In any event, to the extent Whiskers requires an express statutory declaration of trust as a prerequisite to holding the United States answerable in damages, it is inconsistent with the general rule stated in Mitchell, slip op. 19. /12/ Amicus Western Shoshone National Council argues (Am. Br. in Opp. 14) that "(t)he inquiry must be, at what point has the United States satisfied its liability to the claimants by paying them the money to which they are entitled * * *." Except for the use of the plural to describe the claimant, the Western Shoshone Identifiable Group, we do not disagree with this formulation. See pages 27-28, infra. The point, however, is that the United States has discharged its liability under the Indian Claims Commission's award. /13/ The court of appeals thus defined the event of payment somewhat imprecisely. Elsewhere it stated that payment occurs when Congress "has either permitted a plan of distribution to become effective pursuant to 25 U.S.C. 1403 or has legislated one" (Pet. App. 12a; see also Pet. App. 16a, using similar language). It thus appears that the court of appeals would define as "payment" the adoption of a legally effective scheme for distributing the tribal judgment funds to individuals, rather than some step in the implementation of such a plan. In any event, however the court of appeals' ruling may be construed, for the reasons discussed in the text it does not accord with the statutory scheme. /14/ This authority is "'drawn both explicitly and implicitly from the Constitution itself' * * * (and) 'has been termed one of the most fundamental expressions, if not the major expression, of the power of Congress over Indian affairs . . .'" Weeks, 430 U.S. at 85-86 (quoting Morton v. Mancari, 417 U.S. 535, 551-552 (1974), and F. Cohen, Handbook of Federal Indian Law 94, 97 (1942)). /15/ Because the claim -- and the resulting judgment fund -- belong to the tribal entity and not to any particular individuals, it is wholly irrelevant to the question presented that the membership of the Western Shoshone Identifiable Group has yet to be authoritatively defined. Likewise, it is irrelevant to the question presented here that respondents may or may not share in any distribution plan established. Compare Br. in Opp. 7; Western Shoshone Nat'l Council Am. Br. in Opp. 15. The payment bar of Section 22(a) is applicable here without regard to any share respondents may receive in the judgment fund because the respondents' defense to this ejectment action rests upon an assertion of subsisting Western Shoshone tribal title. See page 25, supra. /16/ In point of fact, the judgment fund has been invested outside of the Treasury pursuant to 25 U.S.C. 162a. See page 13, supra. /17/ As respondent acknowledges (Br. in Opp. 7; see also Western Shoshone Nat'l Council Am. Br. in Opp. 2, 15), there is no organized tribal entity that corresponds directly to the Western Shoshone Identifiable Group, which is the beneficial owner of the award in the claims proceedings. It is accordingly especially unpersuasive in this case to attribute any significance to the fact that the judgment fund has been held in trust, rather than released directly to the beneficiary. /18/ The Western Shoshone National Council appears to suggest (Am. Br. in Opp. 13-14) that the use of the phrase "necessary to pay" in the first paragraph of Section 22(a) indicates that payment occurs at some time after the judgment fund has been appropriated and credited to the claimant's account. The argument overlooks the fact that the phrase "necessary to pay the final determination of the Commission" is employed as a measure of the statutory authorization for appropriations. Thus, the argument establishes at most that payment occurs subsequent to the authorization for appropriations -- which was provided in 1946 by the Indian Claims Commission Act -- a point about which there is no dispute. In any event, we need not rely on the first paragraph of Section 22(a), standing alone, to establish conclusively that payment occurs upon appropriation of the judgment fund to be credited to the claimant's account. As explained in the text, the absence of any provision for distribution of a tribal judgment fund, coupled with the juxtaposition of the authorization for appropriations with the payment bar provision, confirms that "payment" occurs when the tribe has become the owner of the judgment fund. /19/ Amicus Western Shoshone National Council asserts (Am. Br. in Opp. 16) that the court of appeals did not hold that Congress should be given a final look at the merits of the underlying claim before payment occurs, but only that Congress must act on a distribution plan before "payment" takes place. The amicus reads the court of appeals' opinion too narrowly. The reason assigned by the court of appeals for holding that payment does not occur until a distribution plan has been approved is that "to permit collateral pursuit of the Western Shoshone claims to continuing aboriginal title" might "produce results highly informative to Congress" (Pet. App. 15a). It would make no sense to allow litigation on the aboriginal title question to go forward so as to "inform() * * * Congress" unless it were thought that Congress intended to consider such matters prior to giving finality effect to judgments of the Commission. /20/ The Court of Claims remarked here (593 F.2d at 998) that Congress "may even have been so optimistic as to hope to have this accomplished in the lifetimes of persons then living." /21/ The insult to judicial economy and values of repose resulting from the court of appeals' decision is two- or three-fold. Not only was the extinguishment issue decided at the outset in the claims proceedings, see page 7, supra, but the Claims Commission and the Court of Claims repeatedly reaffirmed that that was so, in the face of the contrary assertions of respondents and others. See pages 8-9 and page 13 note 8, supra. Moreover, the Commission and the Court of Claims have repeatedly determined that there is no legal basis for the claim that the claims judgment was improperly obtained by claims counsel acting contrary to the wishes or instructions of the Western Shoshones. See pages 8-9 and page 13 note 8, supra. /22/ 25 U.S.C. 118 provides: Payments to Indians from moneys appropriated by Congress in satisfaction of the judgment of any court shall be made under the direction of the officers of the Interior Department charged by law with the supervision of Indian affairs, and all such payments shall be accounted for to the Treasury in conformity with law. This statute confirmed the authority of the Secretary of the Interior to make provision for distribution of appropriated judgment funds. Respondents seize upon the use of the term "(p)ayments" in Section 118, arguing that "payment" for purposes of Section 22 of the Indian Claims Commission Act must likewise refer to payments to individual Indians (Br. in Opp. 4, 6). But Section 118, enacted in 1911 (Act of Mar. 3, 1911, ch. 210, Section 28, 36 Stat. 1077), plainly has no bearing upon the interpretation of the term payment in later-enacted Section 22 of the Indian Claims Commission Act precisely because Section 118 addresses the distribution of funds to individual Indians, rather than the payment of tribal claims. Indeed, in stating that Section 118 "payments" are to be made out of "moneys appropriated by Congress in satisfaction of the judgment of any court," Congress plainly equated the appropriation of funds in the amount of the judgment to be held on a tribe's account in the Treasury with the "satisfaction" or payment of the judgment. /23/ Among these distribution Acts was that governing the Indian Claims Commission award in favor of the Delaware Indians, at issue in Delaware Tribal Business Comm. v. Weeks, supra. That Act, 25 U.S.C. 1291-1297, provided for the distribution of "(t)he funds appropriated by the Act of December 16, 1969 (83 Stat. 447, 453), to pay a judgment in favor of the petitioners, the Delaware Tribe of Indians," and thus equates appropriation of the judgment fund with payment. And the appropriation Act referenced itself provided funds "(f)or payment of claims" (Pub. L. No. 91-166, 83 Stat. 453) -- language that is essentially identical to that employed in Section 22(a) to impart preclusive effect to a judgment upon "payment of any claim." The distinction between payment of a tribal claim, and distribution of a judgment fund to individuals thus recognized was also recognized by this Court in Weeks. There the Court stated (430 U.S. at 79 (emphasis added; footnote omitted)): Congress appropriated funds to pay the (Indian Claims Commission) award and later enacted (25 U.S.C. 1291-1297) providing for its distribution. See also pages 27-28, supra. Other distribution Acts enacted in this era also reflect Congress's understanding that Indian Claims Commission awards had been paid when the funds had been appropriated and deposited to the credit of the claimant tribe in the Treasury. See, e.g., 25 U.S.C. 565 (providing for distribution of "the funds appropriated in satisfaction of a judgment obtained by" the Klamath Tribe "and all other funds heretofore * * * deposited in the United States Treasury to the credit of the Klamath Tribe"); 25 U.S.C. 676a (providing for division of "the trust fund belonging to the Confederated Bands of Ute Indians appropriated by the Second Supplemental Appropriations Act, 1965, and deposited in the United States Treasury" pursuant to a final judgment entered by the Indian Claims Commission); 25 U.S.C. 781(c) (directing distribution of funds "appropriated * * * in payment of the judgment entered by the Indian Claims Commission" to the Creek Nation of Indians); 25 U.S.C. 963 (providing for distribution "(o)f the funds on deposit in the Treasury of the United States to the credit of the Omaha Tribe of Nebraska that were appropriated to pay a judgment by the Indian Claims Commission"); 25 U.S.C. 991 (providing for distribution of "all funds which were appropriated * * * in satisfaction of a judgment" in favor of the Cherokee Tribe); 25 U.S.C. 1012 (providing for distribution of "funds on deposit in the Treasury of the Untied States to the credit of the Snake or Paiute Tribe that were appropriated * * * in satisfaction" of a judgment of the Indian Claims Commission). Comparable language is found in 25 U.S.C. 1031, 1052, 1071, 1081, 1102, 1111, 1132, 1141, 1152, 1161, 1171, 1191, 1201, 1211, 1222, 1231, 1241, 1251, 1261, 1271, 1281, 1291, 1300, 1300b, 1300c, 1300d, and 1300e. The appropriations Acts that preceded these distribution Acts provided funds described as "(F)or payment of claims." See, e.g., 66 Stat. 121; 74 Stat. 52; 75 Stat. 747; 79 Stat. 108. /24/ The generic provisions of the DJFA thus follow the pattern of the various special distribution acts adopted prior to 1973. See note 23, supra. /25/ Respondents' attempt (Br. in Opp. 8-9) to find a reading of the Court of Claims' opinion in Temoak Bank of Western Shoshones that supports their position is unavailing. Contrary to respondents' suggestion, the Court of Claims' statement that, because of the amendment to the standing appropriation Act, "Congress can no longer stop the payment and defer the extinguishment of the title claim, just by not appropriating" (593 F.2d at 999), plainly does not mean that the court believed that the same result could be achieved by blocking establishment of a distribution plan. Rather, the court explained "it looks as if the Temoaks would have to get Congress to act affirmatively" (ibid. (emphasis added)) -- i.e., to enact legislation to avert preclusion or addressing their land claim. Rbspondents' reading of the Court of Claims' comment is untenable, in light of the court's description of the congressional relief that remained open to the Shoshones as transpiring "after payment" (593 F.2d at 999). Respondents also misread (Br. in Opp. 8) the Court of Claims' earlier opinion in Western Shoshone Legal Defense & Education Ass'n. The Court of Claims assuredly did not state, as respondents claim, that the extinguishment issue "never arose" in the claims litigation. (The language quoted by respondents, out of context, is from a description of the government's litigation position, which had been rejected by the Commission, "that the Indians never owned the lands they claimed and therefore that the question of title-extinction never arose" (531 F.2d at 500).) Nor did the Court of Claims state that the extinguishment issue was an "open one which could be decided either way." Compare Br. in Opp. 8. What the court in fact said was that the question whether it was in the Western Shoshones' interest to argue for or against extinguishment was "(a)t best from the() (dissidents') viewpoint * * * an open one that could be decided either way" (531 F.2d at 503). On the extinguishment issue itself the Court of Claims' true view is unmistakable (531 F.2d at 500): "The Commission made its own determination that the Shoshone lands were held by separate Shoshone entities and that Indian title to the area in question was extinguished by encroachment."