UNITED STATES v. MITCHELL

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Argument of Claiborne

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in United States against Mitchell.

Mr. Claiborne, I think you may proceed whenever you're ready.

Mr. Claiborne: Mr. Chief Justice, may it please the Court.

This case is here from the judgment of the Court of Claims on the petition of the United States.

In that court, the plaintiffs were, first, some 1500 Indian allottees on association consisting of those allottees and perhaps others and the Quinault Tribe, itself.

The case concerns the management of timber on the Quinault Reservation.

That reservation was created in 1873 by a presidential order.

It was provided for some 20 years earlier by a treaty leaving the location and dimensions of the reservation to be determined by the President at some later time.

The reservation consists of some 200,000 acres of land mostly covered by timber.

Some one-third of that area has now been taken out of trust, but the remainder in the land, we are told, involved in this case, is some 130,000 acres of timberland.

Because the land was overgrown with timber, it was originally thought that it was not appropriate for allotment into individual parcels.

But -- and indeed, that was the administrative view until this Court set the matter right in 1924.

During the decade that followed this Court's decision in Payne in 1924 and until 1933 or 1934 or 1935, most of these reservation was allotted in individual parcels or indeed, perhaps, all of it was.

Typically, there were 80-acre allotments and we're told some 2000 of them.

The tribal interest here is derivative in that since the Indian Reorganization Act, some small portion of the allotted lands have returned in the tribal ownership, but a mere 4000 acres as compared to the very much larger portion in individual allotments.

Beginning in 1910, the Secretary of the Interior was given statutory authority to consent to the sale of timber on Indian-allotted land, as well as on Indian tribal land.

And whether or not, those allotted lands were technically held in trust or were held by some restricted patent.

In 1934, as a part of the Indian Reorganization Act, the Secretary was required when managing Indian timberlands to do so, on a sustained-yield basis.

These plaintiffs brought this action in the Court of Claims alleging a number of complaints against the Secretary's management of their timberlands.

They said that he had failed to obtain a fair market value in the sales contracts.

That he had failed to manage it on sustained-yield basis.

That he failed, in some cases, to obtain any payment for the timber.

That he'd not developed the proper system of roads and that he'd made improper charges against the allottees for some of those roadworks.

That he'd fail to pay interest on certain sums or insufficient interest and finally that he had exacted excessive administrative charges of being cleared that the Secretary's entitled to make a charge for his management of the timber but the allottees claimed the actual charges were excessive.

In all of these respects of course, the allottees claimed money damages.

It's fair to say that the case proceeded for some years in the Court of Claims before the United States interposed the defense which is presently before this Court.

That defense, the motion to dismiss was premised on the notion that these claims were monetary relief against the United States in respect of its management of the timber, did not lie under the Tucker Act or under its counterpart Section 1505 of the Judicial Code, in the Court of Claims or indeed in any other Court.

That defense was no doubt accounted by this Court's decision in United States v. Testan in 1976.

At all events, when the motion came before the Court of Claims, that Court overruled it holding that applying the rationale of Testan and its own decisions, the United States here through its agent, the Secretary of the Interior, the Bureau of Indian Affairs, had violated statutory duties which fairly mandated compensation in damages under the Tucker Act or under Section 1505 against the United States.

It is that ruling against which we complain.

The case is primarily one under the Tucker Act, Section 1491 of the Judicial Code.

Much is made of the companion provision as we call it, Section 1505, which pertains however, only to the claims of Indian tribes or identifiable groups.

Here the great majority of the plaintiffs or individual allottees who cannot, whenever you make any claim, except under the Tucker Act itself.

And indeed the Court of Claims did not suggest otherwise.

1505 was in the case, in view of the Court of Claims simply because there is a small tribal claim.

At all events, as we've elaborated in our brief, the two statutory provisions are entirely quite extensive.

1505 allows no more monetary relief than does the Tucker Act, itself.

Justice Potter Stewart: Mr. Claiborne, in your brief you indicate one and only question is presented, but doesn't the question embrace at least two -- two questions?

First of all is there a private right of action created and secondly, if so, as the answer -- if the answer to that is, yes, does the defendant have sovereign immunity?

Mr. Claiborne: Mr. Justice Stewart, in the context of this case, a case based entirely on an act of Congress within the terminology of the Tucker Act, we view those questions as the same, analytically different, but in practice, the same.

And may I --

Justice Potter Stewart: I suppose if Congress had a created a prior right of action, it would thereby waive the sovereign immunity.

Mr. Claiborne: Exactly, exactly.

Justice Potter Stewart: But nonetheless, aren't -- aren't there two questions?

Mr. Claiborne: Analytically, Mr. Justice Stewart, I think you're right.

There are two questions.

We placed our entire emphasis on the first of those of questions that is, did Congress in the General Allotment Act primarily relied on and entirely relied by the Court of Claims, impliedly or expressly create a right of action in money damages?

Justice Potter Stewart: Against the United States?

Mr. Claiborne: Against the United States, when a -- an alleged breach of trust duty is found.

Justice Byron R. White: Well, the Court of Claims doesn't disagree with you does it on the fact that you must find some -- some kind of a substantive right in the -- in some statutes other than the jurisdictional statutes?

Mr. Claiborne: That is so, Mr. Justice White.

Justice Byron R. White: And so you did just differ on whether you do find that?

Mr. Claiborne: Our disagreement is with the ease with which they find such a relaxation of the rule.

Justice Byron R. White: Mr. Claiborne, could you tell me where do you find the waiver of sovereign immunity in the ordinary contract case?

And where do you find the implied right?

Then United States just signs a contract for a -- a construction contract to -- to build a building or something and then it allegedly is breached.

Mr. Claiborne: Mr. Justice White, I have some difficulty reconciling my answer with to look for words of the test in opinion.

Justice Byron R. White: Yes.

Mr. Claiborne: And so --

Justice Byron R. White: To go ahead and try.

Mr. Claiborne: It will -- I have to -- I have to read the Testan or perhaps less strictly than its words say.

Testan says that the Tucker Act is no more than a jurisdictional statute.

If by that is meant, the Court which will hear such a claim, I have to suggest that that language is too narrow for --

Justice Byron R. White: Well, you mean it -- do you mean that the Tucker Act actually contains the -- the waiver of sovereign immunity?

Mr. Claiborne: Well, the Tucker when one looks at its original language and when one reads the long list of cases in this Court must in some sense be viewed as a waiver of sovereign of immunity.

Justice Byron R. White: So you -- so you look to that -- that contains the waiver of sovereign, but it's still doesn't get you home because you must have a -- implied right of action somewhere?

Mr. Claiborne: Exactly so.

Justice Byron R. White: Or expressed.

Mr. Claiborne: And in a contract case, it's set that the Tucker Act, it waives a sovereign immunity of the United States.

It can't be the government contractor who has no such power.

Justice Byron R. White: So that you don't -- so that you don't when come around in finding out if there is a private cause of action, you aren't -- don't have the -- you don't approach it as you would a sovereign immunity question.

Namely --

Mr. Claiborne: Well --

Justice Byron R. White: -- a very strict construction.

Mr. Claiborne: Mr. Justice White, my answer is -- is the opposite.

Justice Byron R. White: That it was --

Mr. Claiborne: One does approach it.

Justice Byron R. White: -- because it would expand the sovereign immunity, do we have a loose construction?

Mr. Claiborne: Exactly.

Precisely, because of the Tucker Act is a waiver of sovereign immunity in some sense, one must construe it narrowly.

And because the very same considerations go to determining whether or not, the United States has made itself liable in damages as the question whether the United States has opened itself to suit in anyway.

I would put it in this way, if I may.

That is a presumption against monetary liability of the Government.

That presumption derives from the principle of sovereign immunity from all suits.

But the principle of sovereign immunity -- the core of it is liability in -- to a judgment which will expand itself against the Federal Treasury or against the federal land.

Indeed, there are suggestions that that's all it's left of the doctrine of sovereign immunity.

Justice Byron R. White: Or you would say then -- you would say then, if you were in a District Court in a -- in some kind of a case and then the question was an injunction, there wouldn't be any -- there wouldn't be a sovereign immunity case?

Mr. Claiborne: Exactly so.

I would have said that Mr. Justice White, even before the amendment of the Administrative Procedure Act --

Justice Byron R. White: And no -- so you -- even if you are in the Court of the Claims and the issue is a -- is a -- an injunction, the -- the party seeking the injunction might lose, but not because of sovereign immunity.

It be because of the limits of the jurisdiction of the Court of Claims.

Mr. Claiborne: Exactly so.

And of course, it's not novel notion that the United States and its offices open themselves up to actions for prospective relief and hold the bar to accountability in money damages.

One need only think of the hundreds of cases in which courts review the action of administrators without there being any sovereign immunity bar and courts do direct that different action be taken in the future, whether it's matter of -- of the FDA, withholding improperly permission to market a new drug or any other example, one can think of.

The Department of Interior making an error in surveying land, those are matters which are correctible by courts for the future.

And indeed, to some extent perhaps retroactively, but which do not give rise to liability and damages against the United States.

Justice Byron R. White: But if you find there are some statutes that you think clearly enough gives a substantive right to damages to a private individual, if you just post that kind of a statute, you can take it to the Court of Claims.

You can have your -- have your case in the Court of Claims and the sovereign immunity is -- is not an issue at all.

Mr. Claiborne: Mr. Justice White, I think it's right that if one finds a statutory duty which clearly permits recovering damages for breach, the function of the Tucker Act in such a case is to permit you to join the United States in name.

Justice Byron R. White: And even if you find the statute as very arguable and you file in a Court of Claims, the argument is not sovereign immunity, but the argument you're making here.

Mr. Claiborne: Exactly so.

And that to -- to come to --

Justice John Paul Stevens: Mr. Claiborne, before you -- before you leave that line of inquiry that Mr. Justice White raised I want to be sure I understand your response to his question about the ordinary breach of contract case, where the contractor claims the Government defaulted on an obligation and so forth.

What is the source of the implied cause of action in that sort of case?

Mr. Claiborne: The Court -- Mr. Justice Stevens, I think one must say that the tradition that the remedy for breach of contract is money, is the source of the obligation of the United States, like any other contractor when breaching a contract to pay.

The ability to sue the United States is granted by the Tucker Act in waiving the technical objection of sovereign immunity.

Justice John Paul Stevens: So that whatever -- whether we're talking here of the waiver of sovereign immunity or creation of cause of action, whatever we need in the way of statutory authority for the litigation to proceed, it's found in the Tucker Act?

Mr. Claiborne: If it -- but in a contract case, which of course is -- is not the category we're concerned with today, it is the law of contracts that provides the remedy in damages.

In --

Justice John Paul Stevens: Then why doesn't the law of trust provide the remedy here?

Mr. Claiborne: Well, there is --

Justice John Paul Stevens: It's for the next question here.

You have to keep in mind.

Mr. Claiborne: There isn't a reliance here on the law of trust or I can say the common law of trust because it's a doctrine of equity but the unwritten law of trust is not what is invoked in this case.

And indeed that judgment of the Court of Claims is very plain that there is no reliance on the law of trust generally or even on the fiduciary relationship between Indians in the United States.

The reliance is on an act of Congress and specifically on the General Allotment Act of 1887.

Justice John Paul Stevens: It may just be a stronger case to recovery.

Mr. Claiborne: I'm sorry.

Justice John Paul Stevens: So then, shouldn't this be a stronger case for recognizing the claim?

Mr. Claiborne: When -- when reliance is placed on act of Congress, Mr. Justice Stevens, we say following the Testan that one must find in that act of Congress, a provision fairly read as mandating a recovery in damages against the Government.

And that is simply, wholly absent with respect to the General Allotment Act.

There is no suggestion here that the origin of the right to collect damages is based on law of trust, generally.

And indeed, one might have a question why the law of trust like the law of contract isn't -- doesn't afford the same remedy under the Tucker Act.

The answer must be that whereas the Tucker Act lists certain categories, it does not list law of trust as one of them.

It lists contracts.

It lists acts of Congress.

It lists the Constitution.

It lists regulations, but not the law of trust.

And it expressly excludes the law of torts.

Now, the -- the question is we've seen --

Justice Potter Stewart: But does generically -- arguably, covered it says, “The Court of Claims shall jurisdiction to entertain a suit for liquidated or unliquidated damages in cases not sounding in tort and that would generically include the law of trust or any other law except tort.

Wouldn't --

Mr. Claiborne: Mr. Justice Stewart, commentators in courts have pondered over that last clause --

Justice Potter Stewart: I am -- I am now doing so too.

Mr. Claiborne: -- and have usually answered that it simply cannot be read literally.

For if it were, it would absolve all that came before.

Justice Potter Stewart: Everything else.

Mr. Claiborne: It would be meaningless.

And therefore the answer given usually is that that clause cannot be read as it's written, but must be deemed to mean two things.

First, that damages may be recovered even though unliquidated.

And secondly, that recovery in tort is never permitted.

And that the clause qualifies all that comes before.

Justice Potter Stewart: It's not permitted by the Tucker Act.

It is (Voice Overlap) --

Mr. Claiborne: No.

Not permitted by the Tucker Act.

And indeed, in this case, the Court of Claims in its words, skipped over that last clause placing no reliance on it and the plaintiffs below have made no reliance on it.

They did flirt with either one stage, but in their brief on the merits, they have abandoned any reliance on it.

Coming now to the question whether the statute invoked the General Allotment Act of 188,7 can be read as fairly mandating relief of damages, we think the answer clear, that statute contemplated the scheme whereby the land of the reservation would be divided among the Indians within 25 years and in the meantime, the United States was simply to hold title in trust solely for the purpose of preventing state taxation it being a legal title in the United States and therefore, exempt from state taxation.

Justice Byron R. White: Do you plead -- do you think that the question of construing a statute in order to ascertain whether the Congress intended to give a cause of action for damages, you think that our -- our constructional problem is different than in say, cases like Cort against Ash? You would -- you would say those -- that -- that set of rules just doesn't apply here or not?

Mr. Claiborne: I would, Mr. Justice White, say that some of those rules do apply as they were indeed (Voice Overlap) --

Justice Byron R. White: Well, maybe some of them, but you would just say -- you -- you wouldn't say, “Well, let's just approach this problem in the same as you would in determining whether under the Securities Law, Congress intended a private cause of action.

Mr. Claiborne: No, but, Mr. Justice White, to that extent I invoke the approach followed in Testan that is that one requires a very clear indication if not an expressed statement in the act of Congress relied on that the remedy for its breach shall be damages.

Where no --

Justice Byron R. White: We must not only find the right, but the remedy --

Mr. Claiborne: But the (Voice Overlap) --

Justice Byron R. White: in the (Voice Overlap) statute.

Mr. Claiborne: Exactly so.

The sovereign immunity may be weighed by the Tucker Act, but the remedy and the right must post originate from the same statute relied on.

And --

Justice Harry A. Blackmun: The point in the United States did not press the issue of jurisdiction in U.S. against Mason, did it?

Mr. Claiborne: That is certainly true Mr. Justice Blackmun whether it was simply overlooked or whether it was thought that was an exceptional case in that, the very purpose of the General Allotment Act had been to exempt the allotted lands from state taxes.

And that case involved the question whether the United States had breached its duty to assure that exemption from state taxes, by failing to or by paying over voluntarily the state taxes.

They might there have been a clear -- clearer relation between the breach alleged and the purpose of the statute whereas here, we're at thorough move from that situation.

We also bid that in Mason, the view could've been taken that we were paying with the Indians' money, the taxes which arguably, they did not owe.

And to that extent, we were misappropriating funds.

The kind of activity which the Testan opinion recognizes does not require the same -- the same expressed provision in the statute.

The purposes of the General Allotment Act make it clear that the Congress of 1887, which wrote that statute, would never regret of providing that the United States shall be amenable in damages when it mismanages as alleged the timber on those lands.

It is too remote from the expectations of those who wrote that statute to indulge any such idea quite beyond the fact that the statute doesn't itself, provide for any expressed remedy as to breach --

Justice Potter Stewart: When was the Tucker Act originally enacted?

Mr. Claiborne: 1887, as well.

Justice Potter Stewart: Same year?

Mr. Claiborne: Same year.

Well, that -- of course, the Tucker Act was a sequel to earlier legislation which had much the same effect in respect to the liability of the United States for cases found they've done an act of Congress.

That had been the law since --

Justice Potter Stewart: (Voice Overlap) the Tucker Act laws in the (Voice Overlap) --

Mr. Claiborne: But not in this respect.

The remedy for -- in respect of a claim founded on act of Congress had been in the jurisdiction of the Court of Claims since 1855.

Justice Potter Stewart: Did the Tucker Act add or fund any expressed or implied contract to the United States?

Mr. Claiborne: As -- it's certainly not --

Justice Potter Stewart: (Inaudible)

Mr. Claiborne: I think not.

But I think it did add the Constitution.

And I think it did also add the last clause -- the clause Your Honor, mentioned a minute ago.

And it did in -- in other respects changed the procedure for collecting judgments which were previously not so much judgments as they were recommendations to Congress for an appropriation.

Justice William H. Rehnquist: Mr. Claiborne, let me call your attention to the language from the General Allotment Act cited on page 3 of the Government's brief, the last sentence where it says, “And if any conveyance shall be made of the lands set apart and allotted as herein provided or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void."

Now, is that referring to a conveyance by the Government?

Mr. Claiborne: I think probably both, Mr. Justice Rehnquist.

Justice William H. Rehnquist: Well, don't you have an expression unius argument to rely on there that the -- that the remedy against the Government, if it breached its trust under the General Allotment Act, was simply to declare the conveyance null and void?

Mr. Claiborne: I'm grateful to Your Honor.

I don't know why we should have overlooked that argument, but does seem to me available to say that the statute itself provided its own remedy clearly not one in damages and that is an additional reason why one shouldn't strain and define here a different --

Justice Byron R. White: Was not available in the Court of Claims?

Mr. Claiborne: This remedy of course, would not be in the Court of Claims.

Justice Byron R. White: And -- but if in the District Court, how about the -- how about restitution as when you declare that the act -- the -- a contract void?

How about if it involved money?

Mr. Claiborne: It may be that in the case of a -- an alienation which is wholly unauthorized --

Justice Byron R. White: What about timber?

The United States as would say a legally part of -- with Indian timber?

Mr. Claiborne: Well, not the --

Justice Byron R. White: And it's -- and it's a void contract and that the timber is gone and the U.S. has the money.

Mr. Claiborne: In the --

Justice Byron R. White: You get a (Inaudible) against the United States for money?

Mr. Claiborne: Well, I think that would probably money wrongfully retained within the exception noted in Testan.

It might also be a -- a taking within the just compensation clause.

In both cases, it would be recoverable under the Tucker Act without regard to the reliance on act of Congress.

If I may reserve the balance of my time for --

Justice Byron R. White: And where do you get the -- and where do you get the -- the cause of action -- the implied cause of action -- the expressed cause of action as a constitutional claim?

Mr. Claiborne: From the Constitution itself, but of course, the Tucker Act does imply.

Justice Byron R. White: Mean that -- well, you don't read it in the Constitution.

Mr. Claiborne: Well, this Court has done it, precisely that.

Justice Byron R. White: Well, I know, but you -- you don't -- can you just find it there?

Mr. Claiborne: Well, the just compensation clause --

Justice Byron R. White: Yes.

Mr. Claiborne: -- in words, it says that when the property of a private citizen is taken for public use --

Justice Byron R. White: Oh, you say that's the only --

Mr. Claiborne: (Voice Overlap) just compensation.

Justice Byron R. White: -- that's -- that's the only clause in the Constitution for which there's a remedy against the United States?

Mr. Claiborne: Remedy in damages, so far as I'm aware, against the United States.

Justice Byron R. White: So -- so yes, your answer is, yes?

Mr. Claiborne: Yes.

(Inaudible)

Chief Justice Warren E. Burger: Very well.

Mr. Hobbs.

Argument of Charles A. Hobbs

Mr. Charles A. Hobbs: Mr. Chief Justice and may it please the Court.

As a preliminary matter, I would like to call the Court's attention to the recent publication of the Whiskers case.

The citation is 600 F.2d 1332.

The Whiskers case was decided by Tenth Circuit and that Court agreed with the Court of Claims below.

We sent a letter to the clerk of this Court asking him to pass the citation on to you.

He said he had no authority to do that and for us to make this known to you at oral argument.

Justice Potter Stewart: 600 F.2d 1332?

Mr. Charles A. Hobbs: Yes, Your Honor.

I'd like to begin by expressing a little indignation to hear a justice claiming that this late date -- that it does not have -- the Court does not have jurisdiction over this case.

When these claims were filed in 1971, the law of the land was at the Court of Claims did have jurisdiction over these claims.

And that's what the Court of Claims initially held in the Klamath case, five years before we filed these claims and in the Fields case, a year and half before we filed these claims.

In Capoeman, involving one of these very plaintiffs, six months before we filed these claims, the Court of Claims held it had jurisdiction under 1491.

Justice William H. Rehnquist: When you say that you feel indignation Mr. Hobbs, isn't it the Government's responsibility to call to the court of any -- call the attention of any court of the United States an apparent lack of jurisdiction on its part?

Mr. Charles A. Hobbs: Yes, why did the Government wait so long to spot this apparent lack?

Justice William H. Rehnquist: Well, that may be attributable to a number of reasons.

But once they spotted it, it was certainly your obligation to call it to that attention of the Court.

Mr. Charles A. Hobbs: No doubt.

We had gone through an enormous amount of litigation.

Well past the time when ordinarily a litigant should raise a point of -- of jurisdiction, if he has one.

We had had -- had six years of discovery.

We had three fully briefed, reported decisions of the Court of Claims.

We had 26,000 pages of exhibits developed and handed over to the Government.

We had a three-week trial.

After the trial is when the Government for the first time, raised the question of jurisdiction, up until that point, the law of the land was settled.

That's why they didn't raise the issue in the Mason case.

No one questioned jurisdiction at that late date.

Justice William H. Rehnquist: But we've had jurisdictional questions raise sua sponte in this Court, as to the jurisdiction of District Courts, because that's the law.

Mr. Charles A. Hobbs: Justice Rehnquist, I'm not saying that this Court cannot entertain the question of jurisdiction.

I'm only pointing out the enormous cost and inconvenience to us of having delayed so long while case after case, a total of I believe nine cases went by -- with jurisdiction being upheld in each one until finally they -- and though, in the wake of the Testan case, saw that there might be argument to be made in this case.

And they raised it.

We don't say they can't raise it.

In the Mason case, it wasn't just the Court of Claims that helped give the bar the feeling that the law was settled, it was this Court.

In the Mason case jurisdiction was invoked under 1491.

It was not seriously challenged by the Government below.

They did raise a question, but the Court of Claims held it had jurisdiction.

The issue was not --

Justice Potter Stewart: In the Mason case, the plaintiffs were not an Indian tribe?

Mr. Charles A. Hobbs: No.

The plaintiff was an individual in the Mason case.

Justice Potter Stewart: So, it didn't involve 1505.

It involved 1491?

Mr. Charles A. Hobbs: Correct.

This Court adjudicated the Mason case on the merits and it noted on Footnote 5 that the suit was brought under 28 U.S.C. 1491 which gives the Court jurisdiction and to render judgment upon claims against the United States and so forth.

Now, this certainly tells me ordinary observer that well, here's a case that's been to the Supreme and they had no problem with it.

And then in the text of the Mason case Mr. Justice Marshall wrote on page 398, “There is no doubt that the United States serves in fiduciary capacity with respect to these Indians.

And that as such, it is duty-bound to exercise great care in administering its trust, duty-bound.”

Now, at the time that the court below decided in our favor that there was jurisdiction under 1491 and 1505, 1491 of course is the Tucker Act.

1505 is the extension of the Indian Claims Commission Act, for future cases.

I'm coming to the question of individual versus group claims.

But at the time the court below decided our case, there were two parallel lines of cases in existence on the jurisdictional question.

The Klamath and the Mason cases were one line.

They define jurisdiction under 1491 and 1505 for Indian plaintiffs and the other line was the Testan case decided by this Court and the Eastport case decided by the Court of Claims in 1967.

Eastport is the Court that wrote the fairly mandating compensation test which this Court adopted in the Testan case.

And neither Testan nor Eastport of course, was an Indian case.

The Klamath/Mason line of cases specifically upheld jurisdiction in cases like ours.

And test port -- Eastport line was an open question in cases like ours, with the Department of Justice saying below that Testan/Eastport meant there was no jurisdiction even in an Indian case and we of course, arguing the contrary.

The Court of Claims en banc with every single judge concurring, including I might add Justice or Judge Bennett, who had dissented in the Testan case and had been upheld by this Court.

When it reversed the Testan case, all agreed that the Testan/Eastport line of cases was entirely in harmony with the Klamath/Mason line of cases and under both lines, the court had jurisdiction.

Let's look at the Testan case now.

Not -- first and foremost, Testan was not an Indian case, Indian cases are special as this Court has held time after time.

There are special canons of construction that apply in Indian cases.

There is the knowledge --

Justice William J. Brennan: Was this the position in the Court of Claim?

Mr. Charles A. Hobbs: It did not speak to that question.

Justice William J. Brennan: No.

Thank you.

Mr. Charles A. Hobbs: There is the underlying knowledge that the land of the United States originally belonged to the Indians.

Justice William J. Brennan: Did your words have position than its support on the Court of Claims' jurisdiction in the Court of Claims?

Mr. Charles A. Hobbs: Yes, Your Honor.

Justice William J. Brennan: That is Indian cases are special cases?

Mr. Charles A. Hobbs: Yes.

Justice William J. Brennan: You do.

Mr. Charles A. Hobbs: And we argue the rule of construction which is --

Justice William J. Brennan: So I gather you feel like you -- you suggest that you can rely on that here even though the Court of Claims didn't justify its jurisdiction like I --

Mr. Charles A. Hobbs: Justice Brennan, I -- I assume that we can urge any ground that we urge below in support of affirmance of the Court of Claims.

Of course, the --

Justice William J. Brennan: Even though the Court of Claims didn't rely on that ground.

You urged it that they didn't -- they've relied on something else.

Mr. Charles A. Hobbs: Yes.

It's of course, a rule for the convenience of the Court, whether to listen to such an argument if the Court of Claims did not address it.

But it is a fact of the case that this is an Indian case.

In the second place, also important is the fact that the Testan case did not involve a trust.

It's instructive I think, to consider that kind of claim that Testan and Eastport involved.

Testan involved the claim of a government employee that he was entitled to next higher rate and he should be paid for that.

And he sued for damages for the pay -- back pay, for the next higher position which he said he should've had.

The Eastport case involved someone who was disappointed with the ruling of the shipping board which failed to get him a license, to enable him to -- to sell a ship in foreign commerce, which he had wanted.

Both of these cases involve governmental discretion and complex governmental decisions.

Neither involves any indication by Congress that -- of any intention that there would be a right to recover damages with that kind of case.

In our case, we have a specific trust relationship established by Congress in the General Allotment Act.

And I would like to refresh ourselves on the language of that Act, the part that's relevant here.

25 U.S.C. 348 which was passed in 1887 says, “The United States does and will hold the land thus allotted for the period of 25 years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made or in case of his decease, of his heirs, according to the laws of the state or territory where such land is located.

And that at the expiration of such period, the United States will convey the same by patent to the said Indian or his heirs as aforesaid in fee, discharged of said trust and free of all of charges or encumbrances whatsoever.”

In the Capoeman case this Court held that that language created a trust that had an important purpose of bringing the Indian to a state of competency.

Justice William H. Rehnquist: It says nothing about damages or does it?

Mr. Charles A. Hobbs: The General Allotment Act?

Justice William H. Rehnquist: Yes.

Mr. Charles A. Hobbs: No.

Neither do most contracts, Your Honor.

And yet it's implied when a duty imposed by contract has been breached, there's a duty to respond in damages.

And we say the same applies in a breach of trust case.

Justice William H. Rehnquist: What about the last language or the last sense quoted in the Government's brief where it says that, “If the Government makes a -- conveys in violation of the General Allotment Act, such contract shall be null and void.”

Isn't there some argument to be gained for the Government there by saying that Congress specified the remedy as well as the right?

Mr. Charles A. Hobbs: I could not see when you were in dialogue with Government counsel.

I could not see the existence of a remedy there, but these contracts for timber are in fact, authorized by statute.

The 1910 statute specifically authorize the Secretary to make them, to sell the timber or to approve -- technically to approve the sale by the allottee.

Therefore, this -- the 1910 Act certainly superseded the General Allotment Act's ban on any contract.

But to pick up with the Capoeman case again, in that case you held that the language of the General Allotment Act created an undertaking to hold whole for the Indian his allotment.

And that it could not be diminished by taxes during the trust period.

And I would ask you, if you hold that the trust allotment cannot be diminished by taxes during the trust period, does it not follow that it should not be diminished by waste by the trustee during the trust period?

The intent of Congress certainly had to be the same in both cases that would diminish the value of the allotment.

And the Government has argued that the General Allotment Act did not contemplate a complex timber management operation.

Perhaps it did not.

We don't have to get into that because the only question here is whether there is jurisdiction and the cause of action for breach of trust.

The scope of that trust whether it be broad or narrow, remains for further litigation.

Justice William H. Rehnquist: But if the General Allotment Act contemplated only a skeletal type of trust to protect the Indians from the improvident conveyances and specified within it, its own remedy, then that would have a bearing on the outcome of this case.

Mr. Charles A. Hobbs: Well, it might.

But the 1910 Act expanded the General Allotment Act by permitting timber sales.

And that's what we have here, timber sales.

We have congressionally authorized timber sales done under a trust arrangement created by the General Allotment Act.

Justice William H. Rehnquist: Well, but then you're saying that it's the 1910 Act you're relying on, not the General Allotment Act because you say you don't have to get into the question of whether the General Allotment Act contemplated an elaborate timber management program.

Mr. Charles A. Hobbs: That's right.

We do not have to get into that because the only question today is whether there is a cause of action for damages for breach of trust.

It is not how wide or narrow the General Allotment Act trust is.

Justice William H. Rehnquist: But then are you relying on the 1910 Act?

Mr. Charles A. Hobbs: I'm -- I'm citing the 1910 Act to you to show that when the question does come up of how wide the trust obligation is, the 1910 Act will help to find that.

So indeed, will the 1934 Act, which instructs the Secretary to manage the timber on a sustained-yield basis, which he failed to do.

There are many acts, all cited in our brief, which define the duties of the trustee under the trust relationship, but those Justice agrees with these.Justice says in its brief as we do, that this question is not before you now.

The scope of the trust is not before you.

If the General Allotment Act gave only one or imposed only one duty on the United States after litigation, we'd suppose we were to find that out, still the question is whether we could sue on the -- on the breach of that duty for damages.

We say, sure we can for by analogy to the contract, by the legislative history which I'm going get to in minute.

Justice William H. Rehnquist: What if the General Allotment Act had said in exactly the same words imposed a trust on the United States, then said, “The exclusive remedy for a breach of this duty by the United States, shall be an action for a rescission.”

Mr. Charles A. Hobbs: Perhaps, that would govern to the exclusion of an action for damages.

You have also --

Justice Byron R. White: Although, the last sentence of Section 5 refers just to conveyances and contracts.

And any conveyance or contract with respect to these lands until the expiration of the allotment period under that sentence would be utterly void.

Any contract or conveyance and yet -- yet there were subsequent acts as you say, which said expressly permitted certain kinds of conveyances and contracts with respect to these lands, as part of your argument, I take it.

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: And in any event, it refers only to contracts and conveyances and part of your claims for breach of trust had nothing to do with the conveyance wherein -- or in --

Mr. Charles A. Hobbs: Well --

Justice Byron R. White: -- a contract --

Mr. Charles A. Hobbs: -- they have to do with the way the conveyance of the timber was carried out.

Justice Byron R. White: Well, I know, but the -- the failure to pay interest hasn't got anything to do with that does it?

Mr. Charles A. Hobbs: (Voice Overlap) --

Justice Byron R. White: Or the failure to -- to handle it on sustained-yield basis?

It hasn't got whole lot to do with the conveyance or a contract.

Well, anyway you go ahead and start --

Mr. Charles A. Hobbs: The contract is the matrix in which these breaches of trust occurred.

We don't rely on any breach of contract, certainly.

We rely on breach of trust which occurred in the context of a contract.

The contract I guess you might say is background.

Another thing you have to consider is the very fact that these timbered allotments were made at all.

Normally, in the overwhelming number of cases of Indian allotments, they're farmland.

And the Indians are expected to raise corn or -- or cattle.

In those cases, the Indian does the work and the Government just helps him and gives seed and supervises his labor.

But when the Government gave 2400 Indians 80 acres of timber each, what are they going to do?

You can't manage 80 acres of land.

An individual Indian can't.

For one thing, you only can harvest it once in a lifetime.

And when you do, you're going to need equipment that most people don't have and especially an Indian.

For another thing 80 acres is hopelessly small as a -- an area of timber that can be managed particularly if it's located in the middle of a large forest.

If it were an isolated woodland, there are techniques for management of that.

This is in the middle of a dense forest, one of the densest forests in the United States.

The very allotment of those allotments -- the very act of making those allotments should have made clear that the trust was going to have to involve some management of timber, because the Indian could not possibly do that himself.

Justice William H. Rehnquist: Are all of the respondents here allottees?

Mr. Charles A. Hobbs: They are allottees or successors of allottees, who have a claim that arose while the land was in trust status, yes.

Justice William H. Rehnquist: So you don't have to rely on 1505 then?

Mr. Charles A. Hobbs: No.

That's correct.

However, we do rely on 1505 as a second string to our bow, a point I'm coming to.

I want while I'm still on the question of what actually happened here?

What is the -- for practical purposes, what really went on here?

I also want to say this.

That the Indians understandably took no part in the management of this forest even though they were the owners of it by the small parcel, they took no part in its management.

The Secretary had a large office located, one of them in Portland, one of them in Washington DC and another one in later Everett, Washington.

They decided when the timber was to be sold.

When they decided that, they would go visit the Indian or communicate with him and have him come in and sign a power of attorney.

That authorized the Secretary to do all things necessary to manage and sell that timber.

The Government then would put out invitation for bids.

The Government would let the contract.

When the contract was let, the Government would supervise the contractor.

It had inspectors in the field and inspected the logging.

They saw to the proper scaling of the timber.

They saw to the collection of money, security deposits from the loggers, they collected the money, they deducted their 10% fee and they credited the balance to the allottees.

The -- all the allottee had to do after he signed the power of attorney was open the envelope with the check.

That's all he had to do with a very complex management scheme involving hundreds of employees of the Interior department.

This clearly distinguishes our case from the background of either Testan or Eastport.

We don't say of course that the rules of those cases don't apply.

They do of course.

The Eastport/Testan rule says “That when you sue the Government for damages, you got to find outside the Tucker Act, some statute that gives you a right to sue for damages.”

Justice says this has to be expressed.

I think I heard during the oral argument a retreat from that.

And it may as well be, because the Testan case -- when it comes to Testan's own conclusion, it picks up the Eastport conclusion, which is in our brief on page 13 which I would like quote for us.

This is this Court laying down the rule, “Entitlement to money damages depends upon whether any federal statute, ‘can fairly be interpreted as mandating compensation by the Federal Government, for the damage sustained,' citing Eastport.

In continuing, we are not ready to tamper with these established principles.”

Well, the Eastport case that you approved of course was a rule laid down by the very court and including some of the very judges that have said that we, in our case, have jurisdiction.

So the question is whether the language of the General Allotment Act which is to say a language establishing a trust can be fairly mandating as saying that you have a right of action for damages.

The Court of Claims said, yes.

The Whiskers case has said, yes.

Two District Courts in California have said, yes.

They're cited in our brief.

You have said, yes, in case that we don't find substantially similar or dissimilar.

In Jacobs v. United States, which is a just compensation case, you upheld jurisdiction under a Fifth Amendment taking claim even though the Constitution is silent as to any right to sue for damages.

You've said this was part of the self-executing aspect of the Constitution.

Well, isn't this also true of a trust?

If a trustee breaches his trust, isn't it an inherent part of that relationship that he respond in damages?

The United States v. Wickersham which was another government employee case.

Unlike Testan, he already had his job and he was illegally fired from it.

Yet, he was held to have an implied right to go to court and sue for damages for the back pay during the period he'd been laid off illegally, because you said that this was a suit for denial of emoluments of a civil service position and that was presumably an implied, fairly mandated cause of action.

Justice Potter Stewart: I suppose the Bivens case and last term a Passman case also help you don't they?

Mr. Charles A. Hobbs: By holding implied rights of action in the Constitution?

Justice Potter Stewart: Yes.

Mr. Charles A. Hobbs: Yes, they do.

The Justice Department did not raise the point and we decided in view of the enormous number of points to raise, not to raise it ourselves.

But we did think of that they helped us.

Justice Potter Stewart: But you relied on the other case which held that the only jurisdiction was the Takings Clause of the Constitution.

Mr. Charles A. Hobbs: Well, the Jacobs case.

Justice Potter Stewart: Yes.

Mr. Charles A. Hobbs: Yes, we did rely on that.

Justice Potter Stewart: I noticed that the two cases are mentioned, other provisions of the Constitution were held to confer private rights of action.

Mr. Charles A. Hobbs: We also didn't argue the Cort case, C. O. R. T. because we thought our case was -- raise sharper issues.

The Cort case was vaguer, less tied down, less nailed down, had less square corners in our case.

We have a trust agreement here.

And we think therefore, that the very existence of that trust confers a right of action for damages.Otherwise, what --

Justice Potter Stewart: Because it's not a mine run, plain vanilla trust, is it?

Mr. Charles A. Hobbs: No.

It is a trust to bringing in this to a state of (Voice Overlap) --

Justice Potter Stewart: Distinction uses the word, trust, but it also provides that there shall be an allotment to individual Indians and it's the individual Indians who have control of the property unlike a mine run trust, where the trust -- where the trustee does.

Mr. Charles A. Hobbs: In the case of farmland, the Indian does have control of the property.

In the case of timberland, he does not.

These allottees don't even know where their lands are.

Justice William H. Rehnquist: don't you think that the allottees could insist that they be permitted to operate their own timberland, if they so desired?

Mr. Charles A. Hobbs: They tried, Your Honor, in 1941.

And the Court threw them out.

That was the Eastman case.

It was a suit for injunction to permit the Indians to run the timberland the way they wanted to and the Court said, “Why, nonsense.”

The Secretary would be foolish if he let the Indians run their own allotments.

It'd be -- it'd be a madhouse in the forest.

And they threw them out of the grounds that the Secretary had to manage this forest as a single unit.

They tried the injunction route and they were thrown out.

Now --

Justice William H. Rehnquist: That's a Ninth Circuit Case, that's not -- that's a -- a case in this Court is it?

Mr. Charles A. Hobbs: No, that's true.

Now, justice agrees that some of our claims are within the Tucker Act.

Claims for money improperly withheld.

Why is land held by the Government with an obligation to turn it over at the end of the trust period any different than money held?

If this Court here -- if the Court of Claims has jurisdiction for a money claim, then why not for a claim -- a land claim -- a land for return of the money originally given to the trustee?

Contract, suppose there were a contract between these Indians and the Government and the obligation of the Government under that contract was to competently manage these forestlands, would anyone question that the Court of Claims had jurisdiction over such a claim?

I don't think so.

What about the fact that the Indians have paid fees in this case?

The United States collects up to a 10% fee to pay it for its administrative services.

Is that not an implied contract if the services are not properly performed to be paid to make the trust property hold?

The Interior department agrees with us.

Now, for a good reason, when the Indian Claims Commission Act was passed, they testified that they wanted to be accountable in order to make the government employees have an incentive to do a proper job under the trust's responsibility.

They so testified and the language is quoted in our brief.

Justice Byron R. White: Could I interrupt just a moment?

Do you think technically, this a jurisdictional issue?

Mr. Charles A. Hobbs: (Voice Overlap) --

Justice Byron R. White: By the way Government puts it -- they say the Court of Claims jurisdictional statute reads right on it.

There's been a waiver of sovereign immunity in the Tucker Act.

The question is this, one of statutory construction whether or not, the -- I at the threshold of the case, whether or not, the statute should be construed to permit a -- a cause of action for -- for damages.Suppose the statute said there was, I just said it in black and white.

And suppose another said there shouldn't be.

And another is a -- is a -- is more arguable, you at least have a -- you at least have a -- the Court of Claims got jurisdiction to figure out whether the statute grants a cause of action or not.

And if they decide doesn't, the claimant just loses his case.

Mr. Charles A. Hobbs: That is so.

Justice Byron R. White: Was that a jurisdictional question or not?

Mr. Charles A. Hobbs: I have to confess considerable confusion over the question of whatever sovereign immunity and creation of a cause of action --

Justice Byron R. White: In sovereign immunity, the Government concedes has been waived by the Tucker Act.

Mr. Charles A. Hobbs: Well, that's not what this Court said in Testan.

Justice Byron R. White: Well, I -- to Government, the -- well, I don't know.

It so depends on how you read Testan about that.

Mr. Charles A. Hobbs: Well --

Justice Byron R. White: And -- and the -- and I don't know that Testan is -- is any different in that regard, in the Government's argument here that the way that you construe whether the statute with respect to whether or not the cause of action has -- is -- has been granted.

You should remember that you're talking about the scope of sovereign immunity.

And I'm not sure that converts it into a -- a kind of a jurisdictional question that cant -- that -- that the Government -- that the -- that the normal rules about raising issues shouldn't apply to it.

Mr. Charles A. Hobbs: Your Honor, I have a second argument that is just as solid as the first.

And I must turn my attention --

Justice Byron R. White: Go ahead.

Mr. Charles A. Hobbs: -- to it now, and that is the legislative history.

You cannot read this legislative history of 1505 without concluding that Congress intended tribes and identifiable groups to have a cause of action for damages for breach of trust.

You cannot conclude otherwise.

The question is whether our plaintiffs fit within the definition of tribe or identifiable group.

Tribe, we have the Quinault Tribe and as to their 4000 acres, clearly they're within that.

Whether you call it a waiver of sovereign immunity or creation of a cause of action, that legislative history did both and no question about that.

As to identifiable group, these 1465 plaintiffs are an identifiable group.

They were so held by the Court of Claims.

While they were held to be a class by the Court of Claims, the Court of Claims, it has rulings that we think would make them agree that this is an identifiable group.

If, however, you do not agree that they're an identifiable group, then the doctrine of in pari materia must lead you to conclude that 1491 has to be construed the same way as 1505.

That is what the Court of Claims held in the Hiba case.

It was cited in our brief and that is a case upon which we would rely, if we got to that point.

Thank you.

Chief Justice Warren E. Burger: Mr. Claiborne, do you have something further?

Rebuttal of Claiborne

Mr. Claiborne: Very briefly, Mr. Chief Justice, I simply want to suggest that the proposition now put forward is a novel one.

In one respect in this case, it seems to be a -- accolade of Indian cases, but we know from the Cherry case, decided by the same Court subsequently.

That this notion, that there is immunability to damages for breach of trust is not limited to Indian cases.

And indeed, why should it be here?

There is such a principle, it will range far and wide and we invite the Court not to open that door which, if it's opened, has been opened since 1887 and yet, it didn't occur to anyone, Indian or not Indian to put it forward until at the earliest, a decade ago.

Chief Justice Warren E. Burger: Nothing -- nothing terribly unusable about that, is there?

We recently construed the Sherman Act to include the type of cause of action that -- that's not been thought of by anybody since 1881 or 1887 or whenever the Act was passed.

Mr. Claiborne: But Mr. Chief Justice, it happens, but it is unusual to discover 100 years later that the Tucker Act, if they're available, has and open to individual Indians, not tribes since then, has now, for the first time, provided a remedy of breach of trust because it happens, it might not have, that the allotment in this case was under the General Allotment Act, if it have been made under the very Treaty of Olympia involved in this case, it would not be a trust allotment, it would be a restricted allotment.

And there'd be no technical breach of trust.

Chief Justice Warren E. Burger: Assuming a breach of trust on the theory that the case was brought, what kind of an action -- what kind of remedy would there be for a -- in terms of an accounting?

Mr. Claiborne: Mr. Chief Justice, with -- of course, my first answer is that there is a prospective remedy to enjoin the continuation of the breach by the Secretary of the Bureau of Indian Affairs or whoever is violating the statutory duty to --

Chief Justice Warren E. Burger: Where would -- where would that be -- why would there be jurisdiction for that kind of action?

Mr. Claiborne: In -- in the District Courts, under 5 U.S.C. 702, to review and to correct the action of the administrator in violating the statute whether it's called trust or not, is mismanagement of the forest in violation of -- of the statute.

That remedy is plainly a veil of oath and certainly, is they, with the amendment of the Administrative Procedure Act.

It may also be a remedy to recoup any monies wrongfully exacted or wrongfully retained from the Indian.

That is an exception which the Court recognized in Testan and which we conceive here may well be available to these plaintiffs in respect of the claims that the administration fees charged by the Government were excessive.

To that extent, it would be a wrongful retention or exaction which may be recouped.

But it's not damages in the usual sense.

Justice Potter Stewart: Would that be restitution?

Mr. Claiborne: It would in effect, be restitution.

Chief Justice Warren E. Burger: At 1 o'clock, we'll hear -- we begin with Boeing Company against Van Gemert.