AFFILIATED UTE CITIZENS OF UTAH ET AL. v. UNITED STATES ET AL.
No. 70-78
Supreme Court of the United States
Argued October 18, 1971—Decided April 24, 1972
406 U.S. 128
A. Raymond Randolph, Jr., argued the cause for the United States pro hac vice. With him on the brief for the United States and brief for the Securities and Exchange Commission as amicus curiae for petitioner Reyos were Solicitor General Griswold, Assistant Attorney General Kashiwa, Edmund B. Clark, G. Bradford Cook, Walter P. North, Theodore Sonde, and Richard S. Seltzer. Marvin J. Bertoch argued the cause for respondents First Security Bank of Utah, N. A., et al., and filed a brief for First Security Bank of Utah. Richard Clare Cahoon filed a brief for respondent Gale. Hardin A. Whitney filed a brief for respondent Haslem.
Briefs of amici curiae were filed by John S. Boyden, Stephen G. Boyden, and George C. Morris for the Ute Indian Tribe of the Uintah and Ouray Reservations et al.; by Arthur Lazarus, Jr., and Milton Eisenberg for the Association on American Indian Affairs, Inc.; and by David H. Getches and Wallace L. Duncan for the Native American Rights Fund.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
These two consolidated cases center in the Ute Indian Supervision Termination Act of August 27, 1954 (hereafter Partition Act),
Background
The Ute Partition Act1 pertained to the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah. At the time of the Act‘s adoption the tribe had a membership of about 1,765,2 consisting of 439 mixed-bloods3
Section 8 of the Act,
Section 10,
Section 6 of the Act,
Pursuant to this grant of power the mixed-bloods, in 1956, organized AUC as an unincorporated association. AUC‘s constitution, Art. V, § 1 (b), empowered its board
UDC was incorporated in 1958 with the stated purpose “to manage jointly with the Tribal Business Committee of the full-blood members of the Ute Indian Tribe . . . all unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets not susceptible to equitable and practicable distribution to which the mixed-blood members of the said tribe . . . are now, or may hereafter become entitled . . . and to receive the proceeds therefrom and to distribute the same to the stockholders of this corporation . . . .”
The formation of UDC was part of the plan formulated by the mixed-bloods for the distribution of assets to the individual members of their group. By a resolution adopted by a 42-5 vote at a special meeting at which a quorum was present and voting, AUC approved the articles of UDC. The Secretary also approved them. In January 1959 the AUC directors by a unanimous vote (5-0) irrevocably delegated authority to UDC—and, indeed, to two other Utah corporations of the mixed-bloods, Antelope-Sheep Range Company and Rock Creek Cattle Range Company, see § 13 of the Act,
UDC‘s articles provided that if a mixed-blood shareholder determined to sell or dispose of his UDC stock at any time prior to August 27, 1964, that is, within 10 years from the date of the Partition Act, he was first to offer it to members of the tribe, both mixed-blood and full-blood, in a form approved by the Secretary; that no sale of stock prior to that date was valid unless and until that offer was made; and that if the offer was not accepted by any member of the tribe, the sale to a nonmember could then be made but at a price no lower than that offered to the members.6 The articles further provided that all UDC stock certificates should have stamped thereon a prescribed legend referring to those sale conditions.7 The certificates so issued bore that legend. In addition, each certificate had on its face, in red lettering, a warning that the certificate did not represent stock in an ordinary business corporation, that its future value or return could not be determined, and that the stock should not be sold or encumbered by its owner,
The UDC shareholders were advised of the substance of this warning on several occasions after the stock had been issued. UDC‘s president testified that many responded by saying that their shares were their business and that they could do as they pleased with them.
In August 1960 the Secretary promulgated regulations setting forth the procedure a mixed-blood should follow before effecting a pre-August 27, 1964, sale of his stock to an outsider. 25 Fed. Reg. 7620; 25 CFR §§ 243.1-243.12 (1962). These prescribed for the sale of the stock essentially the same procedure required under § 15 of the Act,
The termination proclamation, contemplated by § 23 of the Act,
II
The Present Litigation
A. The AUC Case. In April 1968 AUC, on its own behalf and as representative of its 490 mixed-blood members, instituted suit against the United States seeking (1) pro rata distribution to the individual members of the 27.16186%9 of the mineral estate underlying the reservation, and (2) a determination that AUC and not UDC is entitled to manage that property jointly with the business committee of the full-bloods. Jurisdiction was asserted under
The United States moved to dismiss the complaint for want of subject matter jurisdiction and for failure to
B. The Reyos Case. In February 1965 Anita R. Reyos and 84 other mixed-bloods sued the bank, two of the bank‘s employee-officers, John B. Gale and Verl Haslem, and certain automobile dealers,10 charging violations of the Securities Exchange Act of 1934 and of Rule 10b-5 of the Securities and Exchange Commission. By subsequent amendment to the complaint the United States was added as a party defendant. Jurisdiction was asserted under
The parties selected 12 “bellwether plaintiffs” from among the 85 for purposes of initial trial. These plaintiffs had sold UDC shares to various nonmembers including the defendants Gale and Haslem. The sales took place after the proclamation of termination of the federal trust relationship.
The District Court held the bank and the two officer defendants liable for damages to each of the 12 plaintiffs. It also ruled that the United States possessed, and did not fulfill, a duty to prevent the sales and thus, under the Federal Tort Claims Act,
The several defendants appealed and the 12 plaintiffs whose cases were tried cross-appealed. The Tenth Circuit reversed and remanded. 431 F. 2d 1337 (1970).
C. On the petition of AUC and the 12 plaintiffs this Court granted certiorari in both cases because of the importance of the issues for Indians whose federal supervision is in the course of termination. 402 U. S. 905 (1971).
III
The AUC Case
The two cases, although different, have their roots in the formation of UDC, and it is not inappropriate that the cases were consolidated and are here together.
A. As hereinabove noted, AUC in its litigation seeks two things: outright distribution of the mixed-bloods’ percentage of the mineral estate, and a determination that AUC is entitled to participate in management with the business committee of the full-bloods.
There is, and can be, no dispute that the United States holds title to the land, including the mineral interest, constituting the Uintah and Ouray Reservation. Prior to the 1954 Act all members of the tribe were the beneficial owners of that mineral interest. The division of the interest between the full-bloods, on the one hand, and the mixed-bloods, on the other, came about by reason of the Act and of the procedures set in motion by the Act. To the extent, therefore, that AUC, by its suit, seeks distribution to the individual mixed-bloods whom it purports to represent, it is necessarily a suit against the United States.
The United States, of course, may not be sued without its consent. United States v. Sherwood, 312 U. S. 584, 586 (1941). This long-established principle has been
The consent, it is claimed, exists in
Although the interest in the mineral estate that AUC seeks to have conveyed pro rata to the individual mixed-
We therefore readily conclude that § 345 has no application here. Neither do
The AUC action, therefore, was properly dismissed for want of jurisdiction.
B. AUC‘s prayer for a determination as to management rights deserves a further word.
The Ute Partition Act was the result of proposals initiated by the tribe itself. See H. R. Rep. No. 2493, 83d Cong., 2d Sess., 2 (1954); S. Rep. No. 1632, 83d Cong., 2d Sess., 7 (1954). The tribe also drafted the Act. Id., at 3 and 7, respectively. It provided for organization by the mixed-bloods and “for the selection of authorized representatives” with power to take any action the Act required to be taken by the mixed-bloods as a group. § 6,
These steps were taken pursuant to the Partition Act.
Clearly, it is UDC and not AUC that is entitled to manage the oil, gas, and mineral rights with the committee of the full-bloods.
IV
The Reyos Case
In this case the 85 plaintiffs sought damages for alleged violations by the defendants, in connection with sales by the plaintiffs of their UDC shares, of § 10 (b) of the Securities Exchange Act of 1934,
The claims center in the facts that the bank, by its agreement with UDC, was the transfer agent for UDC shares; that it had physical possession of all the stock certificates with their specific legend of caution and warning; that, because of the bank‘s possession, a shareholder‘s possible contact with, and awareness of, the legend was minimized; that the bank handled the documents implementing the first-refusal procedure; and that the mixed-blood who contemplated the sale of his shares was compelled to deal through the bank.
The District Court made lengthy and meticulously detailed findings of fact. Some are not challenged by any of the parties. Others are challenged. The following, we conclude, are adequately supported by the record:
1. In 1959, after the bank was retained as transfer agent, UDC‘s attorney wrote the bank advising it that UDC‘s directors, by formal minute, had instructed him
2. The bank maintained a branch office in Roosevelt, Utah. Many mixed-bloods resided in that area. This was, “among other things for the purpose of facilitating and assisting mixed-bloods in the transfer” of the UDC stock. Defendants Gale and Haslem were the bank‘s assistant managers at Roosevelt. They were also notaries public.
3. With respect to most of the sales of UDC stock by the 12 plaintiffs to nonmembers of the tribe, either Gale or Haslem prepared and notarized the necessary transfer papers, including signature guarantees and the affidavits of the sellers to the effect that they were receiving not less than the price at which the shares had been offered to members of the tribe. The procedure with respect to the preparation and execution of these affidavits was informal at best. In at least one case the affidavit was signed in blank; in another Gale dissuaded the seller from reading the affidavit before she signed it.
4. Some of the affidavits do not accurately describe the sales to which they relate. Although they state that the sales were for cash, some sellers actually received second-hand automobiles or other tangible property. The superintendent relied on the recitals in the affidavits in preparing his authenticating certificates that were transmitted to the bank as transfer agent.
5. During 1963 and 1964 mixed-bloods sold 1,387 shares of UDC stock. All were sold to nonmembers of the tribe. Haslem purchased 50 of these himself (all after August 27, 1964), and Gale purchased 63 (44
6. In 1964 and 1965 UDC stock was sold by mixed-bloods at prices ranging from $300 to $700 per share. Shares were being transferred between whites, however, at prices from $500 to $700 per share.
7. Gale and Haslem possessed standing orders from non-Indian buyers. About seven of these were from outside the State. Some of the prospective purchasers maintained deposits at the bank for the purpose of ready consummation of any transaction.
8. The two men received various commissions and gratuities for their services in facilitating the transfer of UDC stock from mixed-bloods to non-Indians. Gale supplied some funds as sales advances to the mixed-blood sellers. He and Haslem solicited contracts for open purchases of UDC stock and did so on bank premises and during business hours.
9. In connection with all this, the bank sought individual accounts from the tribal members.
10. The United States mails and other instrumentalities of interstate commerce were employed by the bank and by Gale and Haslem in connection with the transfer of the UDC shares.
The District Court concluded:
- As to the United States: The Government had reason to know that the mixed-bloods were selling UDC shares to non-Indians under circumstances of a doubtful nature. It owed a duty to the mixed-bloods to discourage and prevent those sales. Its failure to perform that duty was the proximate cause of the sales.
- As to Gale and Haslem: The two men had devised a plan or scheme to acquire, for themselves and others, shares in UDC from mixed-bloods. In violation of their duty to make a fair disclosure, they succeeded in acquiring shares from mixed-bloods for less than fair value.
- As to the bank: It was put upon notice of the improper activities of its employees, Gale and Haslem, knowingly created the apparent authority on their part, and was responsible for their conduct. Its liability was joint and several with that of Gale and Haslem.
The District Court then ruled that each of the defendants, that is, the United States, the bank, Gale, and Haslem, was liable to each of the 12 plaintiffs (32 transactions involving 122 shares), except that the Government was not liable with respect to any sale after August 27, 1964, or with respect to sales made by plaintiffs Workman and Oran F. Curry because of their knowledge and contributory negligence. Using a $1,500-per-share value for UDC stock, as of the times of the sales, the above-described judgments for $129,519.56 and $77,947.35 were computed and entered.
The Court of Appeals reversed in substantial part. It held:
- As to the United States: There was no duty on the part of the Government to the petitioners, in connection
with their sales of UDC stock, that continued after the 1961 termination. No form of wardship or of federal trust relationship existed with respect to the shares after that date. Thus, damages under the Tort Claims Act were not to be awarded. 431 F. 2d, at 1340-1343. - As to Gale and Haslem: They were liable only in those instances where the employee personally purchased shares for his own account or for resale to an undisclosed principal at a higher price. With respect to the other transactions, the two employees performed essentially ministerial functions related to share transfers and their conduct was not sufficient to incur liability. The court remanded the case on the issue of damages, 431 F. 2d, at 1345-1349.
- As to the bank: There was no violation of any duty it may have had to plaintiffs by its contract with UDC. This was so despite the facts that Gale and Haslem were active in encouraging a market for the UDC stock and that the bank may have had some indirect benefit by way of increased deposits. 431 F. 2d, at 1343-1345. The bank, however, was liable to the extent Gale and Haslem were liable. 431 F. 2d, at 1346-1347.
In summary, then, the Court of Appeals decided the Reyos case in favor of the United States and, in large part, in favor of the bank; held Gale and Haslem personally liable, and the bank also, only with respect to a few sales; and, as to those sales, remanded the case on the issue of damages.
We consider, in turn, the posture of the several defendants.
A. The United States. The proclamation of August 26, 1961, was contemplated by § 23 of the Act,
The petitioners’ argument that the right of first refusal created a duty on the part of the Government does not persuade us. This first-refusal right with respect to UDC stock is provided for in the corporation‘s articles and thus was created by UDC itself. The corporation‘s action in this respect imposed no duty on the United States. To be sure, the first-refusal right was undoubtedly patterned after the first refusal provided for a period with respect to real estate in § 15 of the Act,
B. Gale and Haslem. Section 10 of the Securities Exchange Act of 1934,
These proscriptions, by statute and rule, are broad and, by repeated use of the word “any,” are obviously meant to be inclusive. The Court has said that the 1934 Act and its companion legislative enactments15 embrace a “fundamental purpose . . . to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.” SEC v. Capital Gains Research Bureau, 375 U. S. 180, 186 (1963). In the case just cited the Court noted that Congress intended securities legislation enacted for the purpose of avoiding frauds to be construed “not technically and restrictively, but flexibly to effectuate its remedial purposes.” Id., at 195. This was recently said once again in Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U. S. 6, 12 (1971).
In the light of the congressional philosophy and purpose, so clearly emphasized by the Court, we conclude that the Court of Appeals viewed too narrowly the activities of defendants Gale and Haslem. We would
Clearly, the Court of Appeals was right to the extent that it held that the two employees had violated Rule 10b-5; in the instances specified in that holding the record reveals a misstatement of a material fact, within the proscription of Rule 10b-5 (2), namely, that the prevailing market price of the UDC shares was the figure at which their purchases were made.
We conclude, however, that the Court of Appeals erred when it held that there was no violation of the Rule unless the record disclosed evidence of reliance on material fact misrepresentations by Gale and Haslem. 431 F. 2d, at 1348. We do not read Rule 10b-5 so restrictively. To be sure, the second subparagraph of the rule
Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a
Gale and Haslem engaged in more than ministerial functions. Their acts were clearly within the reach of Rule 10b-5. And they were acts performed when they were obligated to act on behalf of the mixed-blood sellers.16
C. The Bank. The liability of the bank, of course, is coextensive with that of Gale and Haslem.
V
Damages
A. The District Court determined that the measure of damages for each seller was the difference between the fair value of the UDC shares at the time of his sale and the fair value of what the seller received, including any amount paid to him in settlement by the automobile dealers. The Court of Appeals held that the measure was “the profit made by the defendant on resale” or, if no resale was made or if the resale was not at arm‘s length, was “the prevailing market price at the time of the purchase from the plaintiffs.” 431 F. 2d, at 1348-1349.
B. The District Court, as has been noted, arrived at a value for the UDC stock of $1,500 per share. The Court of Appeals concluded that this valuation was not substantiated by the record. The petitioners argue for a value in the neighborhood of $28,000 per share, a figure concededly dependent in large part on an estimate of the ultimate worth of oil shale.
We agree with both the District Court and the Court of Appeals that the $28,000 figure is unrealistic and speculative. On the other hand, reasonable inferences may be drawn and the District Court, as the trier of fact on this record, is not restricted to actual sale prices in a market so isolated and so thin as this one. See generally Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 264 (1946); Harry Alter Co. v. Chrysler Corp., 285 F. 2d 903, 907 (CA7 1960); O‘Malley v. Ames, 197 F. 2d 256 (CA8 1952).
In arriving at the $1,500 figure the District Court considered the existence of extensive oil shale deposits on the reservation; the possession by those deposits of substantial present value and of great potential value; the presence of gas, coal, and other minerals; the administrative cost deposit retained by the United States with respect to each member of the tribe; each petitioner‘s remaining interest in the 1965 award by the Indian
The court then expressed the belief that the problem was not to determine the ultimate worth of the undivided mineral interest underlying the shares or to be governed solely by the sale prices. It concluded that on the preponderance of the evidence the stock was worth $1,500 per share at the times of the petitioners’ respective sales.
In the light of all this, and on balance, we find ourselves in agreement with the District Court, and in disagreement with the Court of Appeals, and we conclude that the District Court‘s $1,500 valuation has sufficient support in the record.
The judgment of the Court of Appeals in the AUC case is affirmed. The judgment of the Court of Appeals in the Reyos case is affirmed insofar as it concerns the United States; insofar as it concerns the bank and the individual defendants, that judgment is affirmed in part and is reversed in part, as hereinabove set forth, and the case is remanded for further proceedings. Costs are
It is so ordered.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, concurring in part and dissenting in part.
I join in the Court‘s opinion and judgment as to the individual and corporate respondents. I would go further, however, and also hold that the United States has waived its sovereign immunity to petitioners’ claims.
Petitioners are an unincorporated association of mixed-blood Utes and individuals of that group. They sought damages, in the District Court, for fraudulent securities transactions, for negligence by agents of the Federal Government, and for the deprivation of statutory rights granted them by Congress. The District Court awarded damages on the first two claims, but dismissed the third for want of jurisdiction and for failure to state a claim. The Court of Appeals reversed the two damage awards and affirmed the dismissal of the third action. 431 F. 2d 1337, 1349 (CA10 1970).
In the Ute Indian Supervision Termination Act of 1954, Congress sought
“to provide for the partition and distribution of the assets of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah between the mixed-blood and full-blood members thereof; for the termination of Federal supervision over the trust, and restricted property, of the mixed-blood members of said tribe; and for a development program for the full-blood members thereof, to assist them in preparing for termination of Federal supervision over their property.”
25 U. S. C. § 677 .
“An essential provision of the proposed legislation is the division between the two groups, on the basis of their relative numbers, of all tribal assets, except oil, gas, and mineral rights, and unadjudicated claims against the United States. These undivided assets will continue to be owned and administered jointly by the two groups. The responsibility for making this division is on the Indians themselves, but if they fail to agree within 12 months after the rolls are completed, the Secretary of the Interior is authorized to make the division.” S. Rep. No. 1632, 83d Cong., 2d Sess., 6 (1954) (emphasis added).
Accord, H. R. Rep. No. 2493, 83d Cong., 2d Sess. (1954).
Involved here is the mineral estate in the Reservation lands. Because these “gas, oil, and mineral rights” were “not susceptible of equitable and practicable distribution” among the individual Indians, they were to be “managed jointly by the Tribal Business Committee [of the full-blood Utes] and the authorized representatives of the mixed-blood group.”
Congress set forth an explicit procedure for the selection of the “authorized representatives” of the mixed-blood Utes who, with the Tribal Business Committee, were to have managerial powers over the mineral estate in the reservation. Central to this selection was the requirement for “a majority vote of the adult mixed-blood members of the tribe at a special election authorized and called by the Secretary” of the Interior.
The Ute Distribution Corp. was not chartered according to the guidelines mandated by Congress. Rather than following the requirement for a majority vote of the mixed-blood members, it was created by the five board members of Affiliated Ute. Approval of its articles of incorporation was by a vote of only 42 to 5—far short of the majority of the 490 mixed-blood Utes required by
Because the Bureau of Indian Affairs viewed the transfer of mineral interests to Ute Distribution as one to the authorized representative, cf.
Even if the federal trust relationship was terminated as to individual property interests, it does not follow that the trust relationship was also terminated as to the group interest in the mineral rights. The United States continued to owe significant obligations and duties with regard to these mineral interests. See
The waiver of sovereign immunity for claims relating to land allotments first appeared in an amendment to the Indian Appropriations Act of 1894, 28 Stat. 305, as amended,
“All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress . . . or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States. . . .”
By a further amendment in 1901, Congress made explicit what had previously been only implicit: that it intended to allow allotment claimants to bring actions against “the United States as party defendant.” Act of Feb. 6, 1901, § 1, 31 Stat. 760. See H. R. Rep. No. 1714, 56th Cong., 1st Sess. (1900); S. Rep. No. 2040, 56th Cong., 2d Sess. (1901).
Affiliated Ute Citizens argued that their asserted right to a portion of the mineral estate of the reservation was an “allotment or . . . parcel of land” which they had been unlawfully denied and that they were therefore able to bring this action against the United States under § 345. See, e. g., United States v. Pierce, 235 F. 2d 885 (CA9 1956); Gerard v. United States, 167 F. 2d 951 (CA9 1948). The courts below rejected this view, with the Court of Appeals saying:
“This section of the statute is obviously intended to provide relief to the Indians entitled to possession of allotments and similar interests. The cases and
statutory law have ascribed to the word ‘allotment’ a well recognized meaning. The nature of the interest sought to be protected and secured does not resemble that described in the statute.” 431 F. 2d, at 1350.
We owe to the Indians a beneficent interpretation of remedial legislation designed to right past wrongs. United States v. Kagama, 118 U. S. 375, 384-385. The Court of Appeals, however, gave only a limited interpretation to this waiver of sovereign immunity against Indians’ claims. The Solicitor General likewise argues for a limited application of this waiver and would apply it only to claims concerning “a tract of land set aside out of a common holding and awarded to an individual allottee.”1
“But in the Government‘s dealings with the Indians the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years. . . .” Choate v. Trapp, 224 U. S. 665, 675.
See also Alaska Pacific Fisheries v. United States, 248 U. S. 78, 79; U. S. Dept. of the Interior, Federal Indian Law 565-566 (1958).
Nor does the plain language of § 345 suggest a contrary result. It speaks of an “allotment or any parcel of land.”4 Certainly the modern, conventional way of allotting mineral rights is through fractional interests created by contracts or through stock interests in corporations to which those allotments are transferred. If
The limited retention of sovereign immunity in the Ute termination act further supports petitioners’ claims. Title
No. 70-5112. Argued February 28, 1972—Decided April 24, 1972
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 176. REHNQUIST, J., filed a dissenting opinion, post, p. 177.
Vanue B. Lacour argued the cause and filed a brief for petitioner.
W. Henson Moore argued the cause and filed a brief for respondents.
Notes
A similar argument was made in United States v. Pierce, 235 F. 2d 885, 888 (CA9 1956):
“The United States contends that the jurisdictional prerequisite for any action under [