UNITED STATES OF AMERICA, PETITIONER V. HELEN MITCHELL, ET AL. No. 81-1748 In the Supreme Court of the United States October Term, 1981 The Solicitor General, on behalf of the United States, petitions for a writ of ceritorari to review the judgment of the United States Court of Claims in this case. Petition for a Writ of Certiorari to the United States Court of Claims TABLE OF CONTENTS Opinion below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B OPINION BELOW The opinion of the Court of Claims (App. A, infra, 1a-42a) is reported at 664 F.2d at 265. JURISDICTION The decision of the Court of Claims was filed on October 21, 1981. On January 14, 1982, the Chief Justice extended the time for filing a petition for a writ of certiorari to and including March 20, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1255(1). STATUTES INVOLVED Because of their number and considerable length, the relevant statutes, Sections 7 and 8 of the Act of June 25, 1910, ch. 431, 36 Stat. 857, as amended by Pub. L. No. 88-301, 78 Stat. 186-187, 25 U.S.C. 407 and 406; Section 6 of the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 986, 25 U.S.C. 466; the Act of May 26, 1928, ch. 756, 45 Stat. 750, 25 U.S.C. 318a; Sections 1-3 of the Act of February 5, 1948, ch. 45, 62 Stat. 17-18, 25 U.S.C. 323-325; and Section 1 of the Act of June 24, 1938, ch. 648, 52 Stat. 1037, 25 U.S.C. 162a, are reproduced in Appendix B, infra, 43a-50a. QUESTION PRESENTED Whether the United States is accountable in money damages for alleged breaches of trust in connection with its management of forest resources situated on allotted lands of the Quinault Indian Reservation. STATEMENT 1. In four actions consolidated before the Court of Claims, respondents seek to recover damages from the United States for the alleged mismanagement of timber resources on lands allotted to individual Indians from the Quinault Reservation in the State of Washington. The respondents are 1,465 individuals owning interests in such allotments, the Quinault Tribe, which now holds portions of the allotted lands, and an unincorporated association of Quinault Reservation allottees. The Quinault Reservation was established in 1873 by an Executive Order, I C. Kappler, Indian Affairs 923 (2d ed. 1904), that implemented the Treaty between the United States and the Qui-nai-elt and the Quil-leh-ute Indians, July 1, 1855 ("Treaty of Olympia"), 12 Stat. 971. Between 1905 and 1935 the entire reservation was allotted to individual Indians under the General Allotment Act of 1887, ch. 119, 24 Stat. 388, 25 U.S.C. 331 et seq. Section 5 of that Act, 25 U.S.C. 348, provided that the United States would "hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made * * * ." The period during which the United States was to hold the land thus allotted was subsequently extended indefinitely by theIndian Reorganization Act of 1934, ch. 576, 48 Stat. 984, 25 U.S.C. 462. Much of the land within the Quinault Reservation is heavily forested. /1/ The forest resources on the allotted lands have been managed by the Department of the Interior, which has sold the timber from individual allotments and administered the revenues from the sales. The Secretary of the Interior was authorized by Section 8 of the Act of June 25, 1910, ch. 431, 36 Stat. 857, 25 U.S.C. 406, to approve the sale by the allottee of timber on any Indian land "held under a trust or other patent containing restrictions on alienations * * * ." /2/ Since 1934, the Secretary has been directed to adhere to the principles of sustained-yield forestry on all Indian forest lands under his supervision. 25 U.S.C. 466. And since 1964, 25 U.S.C. 406 has required the Secretary to consider, inter alia, the state of growth of the timber and the present and future financial needs of the allottee and their heirs in making his decisions respecting timber sales. /3/ Finally, the Secretary is authorized to deduct an administrative fee for his services from the timber revenues paid out to the Indian allottees. 25 U.S.C. 406(a), 413. Under this statutory authority the Secretary of the Interior has developed a detailed set of regulations, 25 C.F.R. Part 141, governing sale and harvesting of Indian timber, and has the power to exercise day to day supervision over the harvesting and management of timber. See generally, White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145-147 (1980). In their claims, filed commencing in 1971, respondents have alleged that the Secretary has engaged in several improper practices in connection with his management of timber lands allotted from the Quinault Reservation. Specifically, they assert that he has (App. A, infra, 2a-3a): (1) failed to obtain fair market value for timber sold; (2) failed to manage timber on a sustained yield basis; (3) failed to obtain payment for some merchantable timber; (4) failed to develop a proper system of roads and easements, and exacted improper charges from allottees for roads; (5) failed to pay interest on certain funds; (6) paid insufficient interest on certain funds; and (7) exacted excessive administrative fees from allottees. Respondents contend that they are entitled to recover money damages for the alleged misdeeds because the Secretary's actions have breached a fiduciary duty owed them by the United States as trustee under various statutes. 2. In United States v. Mitchell, 445 U.S. 535 (1980), this Court reversed an earlier decision of the Court of Claims in this case, Mitchell v. United States, 591 F.2d 1300 (1979) (Mitchell I), and remanded the case to that court for further proceedings that culminated in the decision that we now tender for review. a. In 1977 the United States had moved to dismiss respondents' actions on the ground that the United States had not consented to maintenance of these suits or otherwise waived its sovereign immunity in respect to such claims. In response, in Mitchell I, a unanimous en banc Court of Claims held that Section 5 of the General Allotment Act, 25 U.S.C. 348, which recites that allotments are to be held in trust by the United States for the benefit of the Indian allottee, creates an express trust relationship (591 F.2d at 1302), and that the availability of a damages remedy against the United States was "the necessary inference from the statute" (ibid.), because, in the court's view, injunctive or other prospective relief would be an inadequate remedy for the injuries alleged here (id. at 1302-1303). Because the Court of Claims concluded that the General Allotment Act itself provided the necessary authority for recovery of damages for the United States' alleged failure properly to manage the forest resources of the Quinault Allotments (591 F.2d at 1302 n.11), the court did not address the sufficiency of alternative statutory bases for recovery of damages advanced by respondents. These included the timber management statutes (see pages 3-4, supra) 25 U.S.C. 406, 407, 413 and 466, as well as 25 U.S.C. 349 and 372, which govern issuance of fee patents to allottees, 25 U.S.C. 318a, 323-325, which regulate grants of rights of way across Indian lands, and 25 U.S.C. 162a, which addresses investment of tribal and individual Indian funds (591 F.2d at 1304-1305 & n.18). Instead, the Court of Claims merely stated that "these additional statutes furnish statutory directives -- substantive rules of conduct" that should be taken into account as "congressional gauges of proper trustee conduct" in "deciding whether the Government violated its obligations as trustee under the General Allotment Act" (id. at 1305). Finally, the Court of Claims noted that "there is undoubted jurisdiction in this court, aside from any trust relationship under those statutes, over the claims in which plaintiffs seek to recover their own monies retained or deducted by the Government -- unreasonable fees and service charges deducted for work performed by the (United States); improper deduction of road maintenance costs; and any other claims that the Government illegally kept some of the Indians' own money and property" (id. at 1305 n.19; citation omitted). b. As indicated above, however, this Court reversed the judgment of the Court of Claims. United States v. Mitchell, supra, 445 U.S. 535. Based upon the language and legislative history of Section 5 of the General Allotment Act, which recites the trust tenure of the allotted lands, and events surrounding and following the passage of that Act (445 U.S. 542-546), the Court concluded that the Act "created only a limited trust relationship between the United States and the allottees that does not impose any duty upon the Government to manage timber resources" (445 U.S. 542). The "trust" language of Section 5, the Court stated, was not intended to impose fiduciary management duties, or to render the United States answerable in damages for breach thereof, but only to prevent improvident alienation of the allotted lands and assure their immunity from state taxation (id. at 544). The Court accordingly declined to "consider whether, had Congress actually intended the General Allotment Act to impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee, the Act would constitute a waiver of sovereign immunity" (id. at 542). Because the Court of Claims had not passed upon them, the Court declined to consider, in the first instance, alternative bases advanced by respondents in support of their action for damages, including the statutes that govern the Secretary's management of Indian forest lands and other properties (see page 6, supra), the "special relationship" between the United States and Indian tribes, and an implied contract argument (445 U.S. at 546 n.7). Rather, concluding that "(a)ny right of respondents to recover money damages for Government mismanagement of timber resources must be found in some source other than (the General Allotment) Act" (id. at 546), the Court remanded for further proceedings in the Court of Claims. /4/ 3. On remand, the Court of Claims, again sitting en banc, again held the United States subject to suit for money damages on most of the claims advanced by respondents (App. A, infra, 1a-23a). Judge Nichols dissented in part (id. at 23a-42a). The Court of Claims acknowledged that claims for money damages not resting on a contract or seeking recovery of money wrongfully held by the government, must rest upon a statute, regulation, or constitutional provision that may fairly be "'interpreted as mandating compensation by the Federal Government for the damage sustained'" (App. A, infra, 3a-4a, quoting United States v. Testan, 424 U.S. 392, 400 (1976)), and that a substantive right enforceable by declaratory or injunctive relief is insufficient to authorize recovery of damages (App. A, infra, 4a). The court refused, however, to confine implication of a right to recover money damages to actions resting upon statutes that direct payment of money (id. at 5a-6a). Turning to the statutes upon which respondents relied, the court held that the timber management statutes (25 U.S.C. 406, 407 and 466) and the statutes governing rights of way (25 U.S.C. 318a, 323-325) created a fiduciary duty respecting management of forested allotted lands, and gave rise to monetary liability for breach of that duty (App. A, infra, 6a-17a). The court noted first the comprehensive character of federal oversight of Indian forestry activities (id. at 7a-8a). Next, the court concluded that although no express trust was established by these statutes a "long-continuing doctrine of governmental fiduciary obligation in the management of Indian property was * * * infused into" the government statutes (id. at 9a), /5/and that those statutes "have broadened the special trust imposed by the Allotment Act to create a general fiduciary obligation on the Government in the operation and management of the forest lands with which Interior was entrusted" (ibid.). Having determined that the United States bore the obligations of a general trustee, the court examined the particular statutes at issue, concluding that they embody congressional consent to maintenance of an action for damages for breach of fiduciary duty (App. A, infra, 9a-16a). The timber management statutes, the court concluded, reflected a congressional intent to maximize Indian revenues for the long term. The court stated that there is no room to question that an action could be maintained to compel the United States to disgorge the actual proceeds of timber sales. Relying principally upon the law of private trusts and the perceived inadequacy of prospective equitable remedies, however, the court refused to "confine the Indians to the actual proceeds of actual sales" (id. at 12a), extending the monetary remedy to recovery of any additional sums that would have been earned by a properly vigilant fiduciary. /6/ A limit was placed, however, on the kinds of injuries for which damages might be recovered. Respondents might secure damages for (App. A, infra, 10a-11a): (a) any fall-off from the income they would have received from their forests and lands if the Government had properly complied with the directives of the statutes and regulations, and (b) the value (or decrease in value) of their property which is lost (or diminished in value) through improper actions of Interior. /7/ Damages for consequential or indirect injury, whether economic, social, or psychological in character were disallowed (App. A, infra, 11a, 16a-18a), however. The court reasoned that these were not within the contemplation of Congress (id. at 18a). In addition to imposing liability for any proven mismanagement of timber resources and rights of way, the Court of Claims held that under 25 U.S.C. 162a, the respondents were entitled to damages for interest not paid, or paid at a rate reflecting less than "reasonable management zeal to get * * * the best (interest) rate" available for respondents' funds held by the Secretary of the Interior (App. A, infra, 19a-20a). /8/ In closing, the court treated several other bases for recovery advanced by the respondents. The court reaffirmed (see pages 6-7, supra) that damages could be awarded in respect to claims resting upon unlawful or excessive charges for administrative fees that had been deducted from revenues owing to respondents (App. A, infra, 19a). /9/ And the court noted the United States' agreement that damages could be awarded for any taking without just compensation that respondents might establish (id. at 21a). Finally, the court rejected (id. at 22a) respondents' characterization of their claims as grounded upon contracts expressed or implied-in-fact, upon which recovery was available even in the absence of a statutory basis outside the Tucker Act. /10/ Judge Nichols dissented in significant part (App. A, infra, 32a-42a), concluding that the United States had not consented to be sued for mismanagement of forest resources and rights-of-way. He joined in the majority's disposition of the remaining claims and theories of recovery. REASONS FOR GRANTING THE PETITION The Court of Claims' Mitchell II decision represents a significant departure from the teaching of this Court respecting the clear statutory predicate necessary to hold the United States answerable in money damages. The decision is inconsistent with United States v. Testan, 424 U.S. 392 (1976), as reaffirmed in this Court's decision in United States v. Mitchell, 445 U.S. 535 (1980). Even more than its Mitchell I decision, the present decision of the Court of Claims threatens to subject the United States to substantial liabilities without the necessary congressional authorization. 1. In United States v. Mitchell, supra, 445 U.S. at 538, quoting United States v. King, 395 U.S. 1, 4 (1969), this Court reitereated the fundamental rule that "(a) waiver of sovereign immunity 'cannot be implied but must be unequivocally epxressed.'" The controlling principle is simply that, where, as here, a claim for money damages is based on a statute, there is no waiver of immunity, unless the statute "'in itself * * * can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" United States v. Testan, supra, 424 U.S. at 402, quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1008-1009 (Ct. Cl. 1967). /11/ a. Although the Court of Claims recognized that none of the statutes from which it pieced together authority to award damages against the United States expressly provides for maintenance of such suits, it reasoned (App. A, infra, 4a) that the necessary consent to suit may be inferred from a statute that directs payment of a particular sum of money to an individual. With this we have no quarrel, for a statute that creates a right to payment of money can fairly be interpreted as mandating the availability of a damages remedy; without the damages remedy the substantive right would be empty. See, e.g., United States v. Hvoslef, 237 U.S. 1, 10 (1915); Medbury v. United States, 173 U.S. 492, 497 (1899); Mosca v. United States, 417 F.2d 1382, 1385 (Ct. Cl. 1969); Gnotta v. United States, 415 F.2d 1271 1278 (8th Cir. 1969), cert. denied, 397 U.S. 934 (1970); see also Jacobs v. United States, 290 U.S. 13, 16 (1933) (Just Compensation Clause of Fifth Amendment imports a right to recover damages for an uncompensated taking by physical invasion). It does not follow, however, as the Court of Claims reasoned (App. A, infra, 5a-6a), that it is equally immaterial that the statute upon which the claim is grounded does not confer a monetary right at all. On the contrary, while it may not be dispositive in every case, the monetary character of the right is a strong indication that a statute may "'in itself * * * fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" United States v. Testan, supra, 424 U.S. at 401-402, quoting Eastport S.S. Corp. v. United States, supra, 372 F.2d at 1008-1009. By contrast, where, as here, the duties imposed by a statute are not essentially monetary in character, but require implementation through conduct by federal officials, the contrary inference arises: that Congress, by its silence as to a damages remedy, created only a substantive right enforceable through declaratory or injunctive relief. See United States v. Testan, supra, 424 U.S. at 403. /12/ Accordingly, the Court of Claims' entire analysis rests upon an unsound foundation. /13/ b. The result reached by the Court of Claims is inconsistent with the sovereign immunity principles rehearsed above, for none of the statutes from which the Court of Claims inferred a right to hold the United States accountable in damages, provides the necessary "unequivocally expressed" consent to suit against the United States. For instance, the timber management statutes, 25 U.S.C. 406 and 466 (see App. B, infra, 43a-44a, 46a), empower the Secretary to sell timber on allotted lands, provide a generalized standard to guide him in doing so (25 U.S.C. 406(a)), /14/ and require adherence to the principles of sustained yield management (25 U.S.C. 466). Within these confines, the Secretary retains substantial discretion. The only monetary obligation placed upon the Secretary, moreover, is to pay "the proceeds from such sales, after deductions for administrative expenses to the extent permissible under (25 U.S.C. 413) * * * to the owner or owners" or otherwise to "dispose( ) of (such proceeds) for their benefit under regulations to be prescribed by the Secretary * * * ." 25 U.S.C. 406(a). Thus, while we assume that Section 406(a) would ground an action to compel the Secretary to disgorge unlawfully retained proceeds, or, presumably, to refund unlawfully high administrative fees, there is no basis in the statute for extending the monetary remedy to proceeds that arguably should have been, but were not, captured by the Secretary. Indeed, the express mention of a right to receive the benefit of revenues actually garnered by the Secretary suggests, on the contrary, that this is the limit of the damages action implicitly authorized by Congress. The same observation applies to the road building and right of way statutes (see App. B, infra, 46a-48a) relied upon by the Court of Claims (App. A, infra, 15a-16a). Section 318a of Title 25 merely authorized appropriations for building of roads on Indian reservations. It cannot be inferred from the bare statutory language that a right to recover such funds in damages is created. Sections 323 through 325 empower the Secretary to grant rights-of-way over tribal and individual lands (25 U.S.C. 323) subject, in most cases, to the owner's consent (25 U.S.C. 324), and subject to the requirement that there be paid to the Secretary "such compensation as the Secretary * * * shall determine to be just," with the proceeds to be disposed of under the Secretary's regulations (25 U.S.C. 325). We assume that the latter provision would ground an action to recover proceeds of a right-of-way sale wrongfully withheld from the Indians over whose lands it was granted. It does not follow, however, that damages for failure to secure more generous compensation are available. Indeed, the explicit statutory recognition (25 U.S.C. 325) of the Secretary's authority to determine the amount of just compensation militates powerfully against the damages remedy for insufficient compensation created by the Court of Claims. And there is even less basis for inferring from those statutes, as the Court of Claims did, a right to recover damages for the Secretary's alleged failure to plan and build an optimal road network, or properly to maintain rights of way (see App. A, infra, 15a-16a). /15/ Finally, although the question is closer, we submit that the Court of Claims' implication of a right to recover damages for payment of a less than optimal interest rate, is not supported by 25 U.S.C. 162a. Rather than compelling a particular level of compensation, the language of the statute (App. B, infra, 48a-50a) affords the Secretary substantial discretion as to the investments to be made of Indian funds. Accordingly, while failure to apply to the claimants' account interest monies actually earned would likely give rise to a right to redress in damages, no right to recover in damages any shortfall from an optimal level of interest payments can fairly be discerned from the statute. b. As we have shown, "(n)othing on the face" of any of the statutes at issue (Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978)) can "fairly be interpreted as mandating compensation" for the conduct alleged by respondents, as Testan requires. To be sure, the statutes involved here, or at least some of them, create substantive duties that the Secretary must fulfill. But this could equally be said of the Classification Act, considered in Testan, which unambiguously requires that pay classification ratings of federal employees be carried out pursuant to the principle of "equal pay for substantially equal work" (5 U.S.C. 5101(1) (A)). Although Testan alleged a violation of the Act, the Court concluded that a back pay remedy was unavailable, rejecting the notion that the substantive right necessarily imports a damages remedy. 424 U.S. at 400-403. The Court of Claims' reasoning in the instant case, however, as in its Mitchell I decision (see page 6, supra), rests largely upon the court's view that an injunctive remedy is inadequate to redress the violations alleged (App. A, infra, 12a-13a) -- precisely the inference rejected in Testan. Moreover, here, as in Testan, supra, 424 U.S. at 403 (t)he situation * * * is not that Congress has left the respondents remediless, * * * but that Congress has not made available * * * the remedy of money damages * * * . Respondents are not wholly without recourse against what they take to be violations of the various management statutes upon which they rely. Rather, violations of duties imposed by the various statutes in issue may be cured by actions for declaratory, injunctive or mandamus relief against the Secretary. See 5 U.S.C. 702, 706; 28 U.S.C. 1331(a), 1361. In Naganab v. Hitchcock, 202 U.S. 473 (1906), it is true, the Court dismissed as an unconsented suit against the United States, an action by Indians to enjoin the Secretary from implementing regulations prohibiting certain exploitative and unsound forestry practices on Indian lands. The authority of that case, however, has been eroded by subsequent decisions of this Court, and by the enactment of legislation, including the Administrative Procedure Act in 1946. While it may not now be possible to redress injuries occurring long ago by injunctive relief, the fact remains that the respondents were not powerless to protect themselves from the wrongs alleged. /16/ 2. The fact that respondents are Indians ought not alter the result. So far as the availability of money damages is concerned, Indians are situated no differently than any other claimant against the United States -- except as special legislation expressly provides for monetary awards. a. It has long been established that the relationship between the United States and the Indian tribes is a special one, that has been variously described by this Court as a "fiduciary," "guardianship" or "trust" relationship. See, e.g., United States v. Mason, 412 U.S. 391, 398 (1973); Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942); Minnesota v. United States, 305 U.S. 382, 386 (1939; United States v. Shoshone Tribe, 304 U.S. 111, 117-118 (1938); United States v. Candelaria, 271 U.S. 432, 442 (1926); McKay v. Kalyton, 204 U.S. 458, 469 (1907); Minnesota v. Hitchcock, 185 U.S. 373, 396 (1902); United States v. Kagama, 118 U.S. 375, 382-384 (1886); Cherokee Nation v. Georgia, 30 U.S. (5 Pet. 1, 17 (1832). We fully accept the implications of that special relationship and the obligations that go with it. Nor do we deny that these duties may be invoked to flesh out the skeletal mandate of various statutes that authorize the Secretary to act in Indian affairs, providing, in appropriate cases, the "law to apply" (Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); see 5 U.S.C. 701(a) (2)) in actions for declaratory or injunctive relief from administrative action. But it simply does not follow that every such Act of Congress constitutes the "affirmative statutory authority" necessary to maintain an action for damages against the United States. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 513-514 (1940); see also United States v. Shaw, 309 U.S. 495, 500, 502 (1940); Munro v. United States, 303 U.S. 36, 40-41 (1938). /17/ On the contrary, the requirement of unequivocal congressional consent to suit against the United States is fully applicable to Indian claimants. See, e.g., Klamath Indians v. United States, 296 U.S. 244, 250, 255 (1935); Blackfeather v. United States, 190 U.S. 368, 376 (1903). In each case, the question is whether the particular statute invoked "'in itself * * * can fairly be interpreted as mandating compensation.'" United States v. Testan, supra, 424 U.S. at 402. b. The fact that respondents are Indians is not without bearing, however, on the question whether the statutes upon which respondents rely implicitly grant the right to recover damages against the United States. In resolving the underlying issue of congressional intent, we cannot ignore that, when most of the statutes now invoked were adopted, the prevailing legal regime generally deprived Indian claimants of any monetary remedy against the United States. Until 1946, the Court of Claims could not have, in any event, entertained these claims absent a special jurisdictional Act. Section 9 of the Act of March 3, 1863, ch. 92, 12 Stat. 766 (Rev. Stat. 1066 (1878 ed.)) provided that the jurisdiction of the Court of Claims shall not extend to or include any claim against the Government nor pending in said court on (December 1, 1862) growing out of or dependent upon any treaty stipulation * * * with the Indian tribes. /18/ Moreover, the Court of Claims had concluded that even non-treaty Indian tribal claims not be maintained without a special jurisdictional act. See, e.g., Choctaw & Chickasaw Nations v. United States, 75 Ct. Cl. 494, 498-501 (1932). /19/ In that setting, it is most unlikely that Congress intended to create a right to recover damages against the United States in 1910 by enacting 25 U.S.C. 407, which authorizes the Secretary to sell timber on tribal lands, or in 1934 by enacting 25 U.S.C. 466, the sustained-yield requirement which also applies to unallotted lands. And there is no evidence that a different result was expected to follow as to allotted lands covered by 25 U.S.C. 406(a), enacted as a companion to Section 407, or as to allotted lands under 25 U.S.C. 466. Similarly, it is highly improbable that Congress meant to create a money damages remedy in 1938, by enacting 25 U.S.C. 162a, governing investment of both tribal and individual funds. 3. The decision of the Court of Claims creates an unprecedented potential liability by subjecting the United States to claims for money damages for violation of statutory obligations owed to Indians. Damages claimed in this suit alone may aggregate $100 million and other similar claims will assuredly follow in its wake. In Duncan v. United States, 667 F.2d 36 (1981), relying upon its Mitchell II decision, the Court of Claims has held the United States liable for damages respecting a diversity of injuries alleged to have befallen Indian claimants after their rancheria, one of a species of small reservations found in California, was terminated without compliance with a statutory precondition. /20/ As we explain in our petition for a writ of certiorari in Duncan, filed simultaneously with this petition, the Court of Claims' decision there makes clear that under its Mitchell II decision that court will almost invariably hold the United States accountable in damages for any statutory violation affecting the welfare of Indian claimants. /21/ The question presented here is thus of substantial importance. Because Mitchell and Duncan together reveal the extent of the Court of Claims' departure from settled principles respecting waivers of sovereign immunity, we suggest that plenary consideration of the two cases, in tandem, is warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General CAROL E. DINKINS Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General THOMAS H. PACHECO Attorney MARCH 1982 /1/ In the early years of this century, the government concluded that the forested areas of the Quinault Reservation were not to be allotted pursuant to the General Allotment Act because they were not suited for the "agricultural or grazing purposes" contemplated by Congress. See 25 U.S.C. 331. This Court rejected the government's position in United States v. Payne, 264 U.S. 446 (1924), observing that forested lands could be cleared for cultivation, and concluding that the General Allotment Act did not preclude "an allotment of timbered lands, capable of being cleared and cultivated * * * ." 264 U.S. at 449. Following the decision in Payne the forested lands of the Quinault Reservation were allotted, a process that was completed by 1935. /2/ Prior to the enactment of a 1964 amendment, Pub. L. No. 88-301, 78 Stat. 187, Section 406 (25 U.S.C. (1958 ed.)) provided: The timber on any Indian allotment held under a trust or other patent containing restrictions on alienations may be sold by the allottee, with the consent of the Secretary of the Interior, and the proceeds thereof shall be paid to the allottee or disposed of for his benefit under regulations to be prescribed by the Secretary of the Interior. /3/ As amended, Section 406 provides in pertinent part Sales of timber under this subsection shall be based upon a consideration of the needs and best interests of the Indian owner and his heirs. The Secretary shall take into consideration, among other things, (1) the state of growth of the timber and the need for maintaining the productive capacity of the land for the benefit of the owner and his heirs, (2) the highest and best use of the land, including the advisability and practicability of devoting it to other uses for the benefit of the owner and his heirs and (3) the present and future financial needs of the owner and his heirs. /4/ Justice White, joined by Justices Brennan and Stevens, dissented from the Court's disposition, concluding that the General Allotment Act created a true trust encompassing forestry management duties (445 U.S. at 547-549) and that liability in damages follows from "the existence of a trust and fiduciary duties" (id. at 550). The Chief Justice did not participate in the decision. /5/ The court explained (App. A, infra, 8a; citing Navajo Tribe of Indians v. United States, 624 F.2d 981, 987 (Ct. Cl. 1980)): We have held that "where the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection." /6/ Similar reasoning was employed to infer from the various road construction and right of way statutes the right to recover damages for failure to secure proper compensation for rights of way granted over Indian lands and failure to properly maintain rights of way, for levying of road building fees upon the respondents, and for loss of income or property value caused by the Secretary's failure to construct a road network appropriate for proper forest care (App. A, infra, 15a-16a). By contrast, the court found no right to recovery for alleged improvident issuance of fee patents to individual allottees under 25 U.S.C. 349 and 377. The court concluded that those statutes are "almost purely regulatory" and "suggest( ) little of the assumption of fiduciary responsibility," adding that the General Allotment Act itself, as construed in this Court's Mitchell I decision, did not include a true fiduciary or guardianship relationship toward the Indian owners (App. A, infra, 21a & n.18). /7/ Disavowing any view as to the merits, the court stated that the standard to be applied in determining liability was whether the conduct of government agents was "in good faith and within the realm of their acceptable discretion" or, by contrast, was "arbitary, capricious, in abuse of discretion or contrary to law" (App. A, infra, 18a & n.15). /8/ No interest was allowed, however, on the other items of damages approved by the Court of Claims, because no statutory authority exists for pre-judgment interest against the United States in these circumstances (App. A, infra, 20a). /9/ The court rejected the government's contention that individual respondents had failed to exhaust administrative remedies through which they might seek an adjustment of these charges (App. A, infra, 22a-23a). /10/ The court simply found no indication that contracts creating management duties existed, noting that the powers of attorney pursuant to which the Secretary acted for individual allottees contained no such terms, and that the timber sales contracts themselves ran between the Indian owners and the timber companies and are not enforceable against the United States. A contract implied in law would not support relief, the court observed, granting respondents leave, however, to amend their petitions to allege, and demonstrate the existence of actual expressed or implied-in-fact contracts (App. A, infra, 22a). /11/ Here we follow the terminology of this Court's testan and Mitchell opinion by speaking of a failure to waive the bar of sovereign immunity. In Testan the court stated that the Tucker Act is merely "jurisdictional," intimating that it does not effect a waiver of sovereign immunity. 424 U.S. at 398, 400. And in Mitchell the court repeated that the respondents "must look beyond the jurisdictional statute (the Tucker Act) for a waiver of sovereign immunity with respect to their claims." 445 U.S. at 538. Technically, we think it more accurate to say that the Tucker Act itself effects a conditional waiver of the otherwise absolute immunity of the United States from being sued eo nomine. See, e.g., United States v. Sherwood, 312 U.S. 584, 590 (1941). The waiver is effective whenever an independent basis for recovery of damages exists, be it a contract, the government's retention of funds owned by the claimant (see United States v. Testan, supra, 424 U.S. at 400), or another statute that creates a right to action in damages against the United States for breach of a statutory command (ibid.). But it cannot matter how the point is articulated. It is entirely clear that no recovery can be had under the Tucker Act in respect of a claim founded upon an Act of Congress unless the statute invoked, construed in the conservative manner appropriate to a waiver of sovereign immunity (see United States v. Sherwood, supra, 312 U.S. at 590-591), can be said to make the United States answerable in damages for the conduct of federal officials in violation of the particular statute. United States v. Testan, supra, 424 U.S. at 400. It goes without saying that the semantic reformulation we propose would not call in question the fundamental reasoning, much less the result, of Testan, this Court's earlier Mitchell decision, or any other of this Court's decisions. /12/ Indeed, while refusing to approve the result therein, the Testan Court (424 U.S. at 402) distinguished Selman v. United States, 498 F.2d 1354 (Ct. Cl. 1974), on precisely this basis. /13/ The Court of Claims' analysis is also at odds with this Court's recent decisions refusing to imply a private right of action from federal statutes that, on their face provide no such remedy. See, e.g., California v. Sierra Club, 451 U.S. 287 (1981); Universities Research Association v. Coutu, 450 U.S. 754 (1981). Those cases may be instructive in this context, for here, too, the "ultimate question is one of congressional intent, not one of whether this Court thinks it can improve upon the statutory scheme that Congress enacted into law." Touche Ross Co. v. Redington, 442 U.S. 560, 578 (1979). Implication of a damages remedy against the United States from a statute silent on that subject is particularly to be disfavored, however, because congressional intent must be determined against the background of the "presumption" that the United States has not consented to suit. Eastern Transportation Co. v. United States, 272 U.S. 675, 686 (1927). As Judge Nichols persuasively argued in his dissent, the right of action implied by the court below "is in cold reality but a strong and clear wish upon the judge's part" (App. A, infra, 25a). /14/ As is noted above (pages 3-4 & notes 2 & 3) that standard was not in place until 1964. /15/ Like claims for excessive administration fees, respondents' claim for recovery of excessive deductions from the timber revenues withheld for road building may be maintainable on the theory that recovery of funds unlawfully retained is sought. Nothing in 25 U.S.C. 318a, or Sections 323-325, however, supports a claim that road building charges are per se unlawful. /16/ In any event, in the typical case, the retrospective reach of a damages remedy would also be limited -- by the six year statute of limitations. 28 U.S.C. 2501. /17/ Because the decision below premises liability on alleged violations of more or less particularized statutory duties, we need not address the question whether the United States is accountable in damages for breach of its more generalized obligations as "guardian" or "trustee" of Indian property interests. It is worth noting, however, that this Court has never so held. Instead, this Court's cases invoke the fiduciary relation (1) to preclude unauthorized state interference in the relations between the United States and the Indian tribes or other unauthorized exercise of state jurisdiction on Indian lands (see, e.g., Cherokee Nation v. Georgia, supra, 30 U.S. (5 Pet.) at 17; United States v. Kagama, supra, 118 U.S. at 382-384), (2) to bar or nullify exercises of state court jurisdiction in matters affecting Indian property rights, in which the United States was not properly joined or represented (see, e.g., Minnesota v. United States, supra, 305 U.S. at 386; United States v. Candelaria, supra, 271 U.S. at 442; McKay v. Kalyton, supra, 204 U.S at 469), (3) to interpret doubtful or ambiguous treaty language in favor of the Indians (see, e.g., United States v. Shoshone Tribe, supra, 304 U.S at 117-118; Minnesota v. Hitchcock, supra. 185 U.S. at 396), (4) to limit the United States' liability for damages under the Just Compensation Clause where, acting as a fiduciary manager, it has converted the form of Indian property (compare Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) with United State v. Sioux Nation of Indians, 448 U.S. 371 (1980)), and finally (5) to emphasize the high standard of care that the United States is obliged to exercise in carrying out its duties respecting the Indians (see, e.g., United States v. Mason, supra, 412 U.S. at 398; Seminole Nation v. United States, supra, 316 U.S. at 296-297). To be sure, the last two cited decisions involved claims for money damages, but no argument was made in either case that damages were unavailable as a remedy and the Court did not address that question in either case. In any event, Seminole Nation was maintained pursuant to special jurisdictional acts that provided the necessary consent to suit. 316 U.S. at 288-289 & n.2; see also United States v. Seminole Nation, 299 U.S. 417, 419 (1937). Moreover, the Court's discussion of the government's jiduciary duty in Seminole Nation, supra, 316 U.S. at 296-297, referred to a claim to compel payments expressly prescribed by Treaty, as to which no special jurisdiction provision would today be necessary. In United States v. Mason, the United States did not assert that damages were an unavilable remedy, but only that its failure to challenge assessment of state taxes against an estate, including allotted lands, was not a breach of trust duty, because the United States had acted in reliance upon a subsisting decision of this Court in paying the taxes in question. Because of the sufficiency of this defense on the merits, there was no occasion to argue, or to decide, whether damages could be assessed for a breach of duty. The language that is usually cited from Mason ("There is no doubt that the United States serves in a fiduciary capacity with respect to these Indians and that, as such, it is duty bound to exercise great care in administering its trust." 412 U.S. at 398), carries no necessary implication that the remedy available for breach of this duty is damages. Rather, it is our contention, that, like the unequivocal statutory command of the Classification Act considered in Testan, this language merely reflects the existence of a substantive duty, which may be enforced by non-monetary remedies in a proper case. /18/ This disability was continued by Section 153 of the Judicial Code of 1911, ch. 231, 36 Stat. 1138, and Section 1502 of the Judicial Code of 1948, ch. 646, 62 Stat. 942. Although the 1946 Indian Claims Commmission Act plainly was intended to overcome this disability (see United States v. Mitchell, supra, 445 U.S. at 538-540 & n.2), this provision was only repealed by adoption of the Act of May 24, 1949, ch. 139, Section 88, 63 Stat. 102. /19/ Congress' awareness of this situation, and its intent to alter it, is reflected in the legislative history of the Indian Claims Commission Act of 1946. See, e.g., H.R. Rep. No. 1466, 79th Cong., 1st Sess. 2 n.2 (1945). /20/ An earlier decision in Duncan, 597 F.2d 1337 (1979), was vacated and remanded to the Court of Claims for reconsideration in light of this Court's Mitchell decision. United States v. Duncan, 446 U.S. 903 (1980). Appendix Omitted