586 F.2d 192 | Ct. Cl. | 1978
Lead Opinion
delivered the opinion of the court:
These cases, transferred here from the Indian Claims Commission prior to its termination,
I.
A. The Navajo Tribe: The Tribe timely filed with the Commission in 1950 a petition containing a claim for a complete accounting by the Government for all income and receipts from tribal property held in trust by the Government, and of all expenditures by the Government from tribal funds.
A second, parallel, dispute over accounting claims, said to begin before August 13, 1946 and continue thereafter, concerned several "Individual Indian Money” (IIM) accounts in the Treasury. The Government resisted having to account for 35 of these accounts because those particular accounts did not exist, or have any activity, prior to August 14, 1946. The Commission denied, without prejudice, requests by defendant to exclude the 35 accounts from the accounting. 36 Ind. Cl. Comm. 181 (1975); 39 Ind. Cl. Comm. 10, 32 (1976). Thus, the Commission never finally decided this question of the 35 IIM accounts.
Thereafter, by order of December 27, 1976, the consolidated accounting claims (Nos. 69, 299, and 353) were transferred to this court. 39 Ind. Cl. Comm. 261 (1976). The trial judge to whom the case was assigned then gave the Government permission to file this motion for partial summary judgment on the issue of accounting to date (rather than merely to August 13, 1946).
B. The Nez Perce Tribe of Idaho: The Nez Perce Tribe, through the Chief Joseph Band in the State of Washington, duly filed with the Commission a general accounting claim, Nez Perce Tribe v. United States, No. 179 (Ind. Cl. Comm., filed July 16, 1951). The Nez Perce Tribe of Idaho intervened. Docket No. 179 was settled as to all claims or demands up through June 30, 1951. See 23 Ind. Cl. Comm. 39 (1970). Excepted from this settlement and severed into Docket No. 179-A were all claims for the period after June 30, 1951.
Defendant requested the Commission to transfer the case to this court without calling for a reply to the Tribe’s motion. This was done on December 15, 1976, and the case has been here since that time. 39 Ind. Cl. Comm. 239, 240 (1976).
Before us now is the Tribe’s motion (initially made to the Commission) for partial summary judgment and supplemental accounting, as well as defendant’s cross-motion for summary judgment and dismissal on the ground that this court (on transfer from the' Commission) has no jurisdiction over the claims because they are said to have arisen after August 13, 1946.
II.
The statutory scaffold for this controversy over Commission jurisdiction with respect to post-August 1946 transactions or omissions is composed of three planks: (1) section 2 of the Indian Claims Commission Act of 1946, ch. 959, 60 Stat. 1050 (codified at 25 U.S.C. § 70a (1976)) states that "No claim accruing after the date of the approval of this Act [August 13, 1946] shall be considered by the Commission”; (2) section 12 of the Act, ch. 959, 60 Stat. 1052 (codified at 25 U.S.C. § 70k (1976)), declares that "The Commission shall receive claims for a period of five years after the date of the approval of this Act [August 13, 1946] and no claim existing before such date but not presented within such period may thereafter be submitted to any
It is now more than 22 years since the first interface, in this court, between these statutory provisions and the problem of Indian wrongs said to occur after August 13, 1946 but which had their roots in the earlier period. Gila River Pima-Maricopa Indian Community v. United States, 135 Ct. Cl. 180, 140 F. Supp. 776 (1956). The Gila River Pima-Maricopa Indians filed suit in this court on a number of claims which were identical to claims then pending before the Indian Claims Commission except that the plaintiffs sought damages in this court only after August 13, 1946 (leaving to the Commission the damages suffered before that date).
In acting on the defendant’s motions, the court discussed the problems at some length. Judge Littleton pointed out that our jurisdiction (under what is now 28 U.S.C. § 1505) would reflect whether the Commission had authority over "damages or compensation accruing subsequent to the passage of the Indian Claims Commission Act although the causes of action themselves may have accrued prior to that date.” 135 Ct. Cl. at 185, 140 F. Supp. at 778.
The opinion did not purport to give a definitive answer,
Most significantly, the court, specifically adverting to the division of jurisdiction between the Commission and this court with respect to claims accruing before and after August 13, 1946, "illustrated” the "problems resulting from this arrangement” "as follows”:
Where a tribe is suing on a claim involving the recovery of periodic installments of compensation such as rent under a lease, and several of the installments fell due and were unpaid prior to the passage of the Indian Claims Commission Act while others fell due and were unpaid subsequent to that date, the question arises as to whether or not, on a claim therefor filed in the Commission, that body has authority to render judgment for all such installments of unpaid rent up to the date of its final judgment, or whether its jurisdiction is or should be held to be cut off and limited to rendering judgment*20 for only those installments due prior to August 13, 1946, so that suit for the remaining installments must be brought in the Court of Claims. There is no express provision in the Indian Claims Commission Act one way or the other on this point, nor in the legislative history of the act insofar as we have been able to determine. It is the usual rule that a court once having obtained jurisdiction of the persons and subject matter of a suit, retains such jurisdiction for all purposes including the awarding of all damages accruing up to the date of judgment. This is a good rule and we find nothing that would prevent its application here. [135 Ct. Cl. at 186, 140 F. Supp. at 779.]
Six years later, after a further oral argument triggered by a rule to show 'cause why the suit in this court by the Gila River Pima-Maricopa Indian Community should not be dismissed, the court dismissed the suit by order, noting its conclusion "that the allegedly wrongful acts of the defendant first accrued, if at all, prior to 1946, and it is held that the Indian Claims Commission has jurisdiction to award just compensation for such acts, whether the full content thereof became apparent before or after 1946”, and that "the Indian Claims Commission has jurisdiction of the controversies asserted in the petition filed in this court.”
We think that the only acceptable way to read these Gila River decisions in 1956 and 1962 is as a holding by this court that, if a wrongful course of governmental conduct began before August 13, 1946 and continued thereafter, the Commission could properly take account of and award relief for the damages or injuries suffered after that date from the continuing course of conduct which began prior to that time. In view of the nature of the claims discussed in 135 Ct. Cl. and dismissed in 157 Ct. Cl., that is the only permissible reading.
If we adhere to the Gila River-Southern Ute position, we would be required to reject the defendant’s overall position in the cases now before us. That contention is, first, that each particular misuse of tribal funds or property, or failure to act properly, gives rise to a separate claim; second, that each such separate claim arising after August 13, 1946, can be vindicated only by timely suit in this court under 28 U.S.C. § 1505; and, third, that the Commission has no jurisdiction over those expenditures, incidents, or failures occurring after August 13, 1946, even though they result from a course of conduct or policy begun before that cut-off day and continuing thereafter.
III.
Defendant does ask us to depart from our Gila River-Southern Ute stance; we are told that those rulings fly in the face of the statutory command and cannot be followed. Insisting that Congress confined the Commission’s jurisdiction strictly to wrongs perpetrated on or before August 13, 1946, defendant invokes the general principles that Congress has the exclusive right to determine the jurisdiction of federal tribunals and that consents to sue the United States must be strictly construed. We have considered the matter afresh and conclude, first, that the Gila River-Southern Ute position is probably correct and, at the very least, tenable and supportable; and, second, that there is no strong or compelling reason to reject it at this time — rath
Consider first the words of the relevant portions of the Indian Claims Commission Act. Section 2, 25 U.S.C. § 70a (1976), bars the Commission from entertaining any "claim” "accruing” after August 13, 1946. Section 12, 25 U.S.C. § 70k (1976), directs the Commission to receive "claims” for five years after August 13, 1946, and declares that no "claim” "existing”
This interpretation does not cross the literal words of the statute, or any entrenched principle necessarily incorporated into the legal meaning of those terms. Rather, "claim” and "accrual” of a claim are apt candidates for Justice Holmes’ aphorism in Towne v. Eisner, 245 U.S. 418, 425 (1918).
On this view, the Commission could properly entertain, without transgressing any provision of the Claims Commission Act, a petition timely filed on or before August 13, 1951 (five years after August 13, 1946), which expressly stated as its claim, let us say, that the Federal Government had followed since 1940 the wrongful course of conduct and general policy of using tribal funds to pay for purely Indian agency governmental needs, and such a general claim would entitle the Indian claimant to redress for such wrongful expenditures not only up to August 13, 1946, but also beyond that date until judgment.
Refusing to accept this solution, defendant says that Congress, in the Claims Commission Act, sharply separated the Commission’s jurisdiction from this court’s original jurisdiction by the date of enactment (August 13, 1946), and that adherence to the canon of strict construction of waivers of sovereign immunity requires us rigidly to heed that very distinct, razor-edged, cleavage. But we have already reiterated that no insuperable obstacle, linguistic or theoretical, bars definition of a "claim,” for Commission purposes, as including a continuing federal policy or course of conduct; similarly, "accruing,” with respect to a "claim,” can mean in this context the initiation or commencement of such a continuing policy or course of conduct (regardless of the dates of impact of the series of individual transactions or omissions which make up that "claim”).
As for the canon of strict construction, we doubt that it has its full force where, as here, Congress has waived immunity, not partially (as is most often the case), but almost wholly — distinguishing only by date between the two federal tribunals selected to hear those cases as to which immunity has been set aside. Normally, a waiver is read strictly so as not to catapult courts, or particular kinds of courts, into matters or relief which Congress did not wish to repose at all in the judicial branch or in certain tribunals. Cf. McElrath v. United States, 102 U.S. 426, 440 (1880); United States v. Testan, 424 U.S. 392, 399-404 (1976). Here, there is little reason to think that the 1946 Congress had any such aim. For the types of claims with which we deal in the present cases, there is little difference in authority between the Commission and this court acting under 28 U.S.C. § 1505.
It is true that the Commission was to be a temporary tribunal and Congress did not expect its life to be prolonged indefinitely. But Congress also knew that it would have at least a decade of life,
But even if we were to apply the principle of strict construction at full face value, we would not adopt the Government’s thesis. It has never been the rule that consents-to-suit must be given the narrowest possible scope
Finally, we address directly the problem — a hypothetical question in view of the way Gila River was decided — whether it would have run counter to the Claims Commission Act if the court had accepted jurisdiction in Gila River. Defendant urges that there is not a particle of
In any case — even if we assume that there can be no smidgen of overlap — we conclude, for the reasons already given, that defendant’s position, assessed de novo, is not more meritorious in "pure” theory than the Gila River
The heart of what we have been saying in this Part III is that, on reexamination, we cannot reject the Gila River rule as incorrect, untenable, or unsupportable. On the contrary, it seems to us appropriate, well-supported, consonant with the language and objectives of the Claims Commission Act, and sustained by practical considerations and needs.
IV.
There are additional reasons why we consider it a mistake to overturn Gila River at this stage of litigation under the Indians Claims Commission Act.
a. Chief among these is the unfairness of now departing from a substantial position which this court adopted, many years ago, at the behest of the defendant and which has been accepted since that time by the Indian claims community as a clear signal that the Commission had jurisdiction over these "continuing” claims and that protective actions need not be filed in this court under 28 U.S.C. § 1505.
When this court considered, in 1956, the' Government’s motion in Gila River for judgment on the pleadings or for summary judgment, the court had before it a written brief by the defendant which urged that several of the claims made in the Gila River court petition should be dismissed as identical to claims already on file with the Commission; the brief urged dismissal under 28 U.S.C. § 1500 and also on the ground that, because the two sets of claims were the same, the post-August 13, 1946 claims which those plaintiffs attempted to assert here split a single cause of action. In reply, the plaintiff Indians contended that the two sets of claims were separate because of the difference in the time when they arose. The court’s opinion is summarized in Part II, supra; it obviously leaned heavily toward the position advanced by the defendant. When the court later issued in 1962 its rule to show cause why the Gila River petition should not be dismissed, the defendant filed no
The Gila River decisions of the court, considered together, were obviously taken by Indian claimants and their counsel as a holding that the Commission could redress these so-called continuing wrongs both before and after August 13, 1946, and that protective suits need not be filed here. Sixteen years have passed since the dismissal order of 1962. So far as we are aware, no such protective suits in this court, similar to that of the Gila River Indians, have been brought or prosecuted since that date.
In addition, defendant did not conduct its proceedings before the Commission so as timely to alert the Indian claims community that it had altered its views so as to adopt a position of denial of any Commission jurisdiction over continuing wrongs perpetrated after August 13, 1946. For example, in the Navajo Tribe case now before us, the Government furnished a General Accounting Office report of receipts and disbursements of Indian funds going up to June 30, 1951 (almost five years after August 13, 1946); the same is true in the Nez Perce case, the other proceeding specifically considered in this opinion. In Nez Perce, too, the defendant entered into a stipulation of settlement of all claims up to June 30, 1951. We gather that it was not until the second half of the 1960’s or the beginning of the 1970’s that the different position, now advocated so strongly, emerged in such form as truly to warn the Indian claims bar that the United States had definitely changed its footing. By that time, of course, it was too late to sue in this court on a great many of the post-1946 incidents or transactions.
b. Initially the Commission, when it first addressed the matter, decided that the United States should furnish full up-to-date accountings of its management of Indian funds and property without any preliminary showing of some pre-August 1946 wrong. See Southern Utes v. United States, 17 Ind. Cl. Comm. 28, 63, 65 (1966), aff’d, 191 Ct. Cl. 1, 423 F. 2d 346 (1970), rev’d on other grounds, 402 U.S. 159 (1971); Te-Moak Bands v. United States, 23 Ind. Cl. Comm. 70, 72 (1970); Mescalero Apache Tribe v. United States, 23 Ind. Cl. Comm. 181, 185-86 (1970). Somewhat later, the Commission modified its stand to comport more directly with Gila River and to require some showing of pre-August 1946 wrongdoing which continued thereafter. See, e.g., Fort Peck Indians v. United States, 28 Ind. Cl. Comm. 171, 174-75 (1972); Blackfeet and Gros Ventre Tribes v. United States, 32 Ind. Cl. Comm. 65, 71-76 (1973); Fort Peck Indians v. United States, 34 Ind. Cl. Comm. 24, 28-29 (1974), rev’d & remanded on other grounds, 207 Ct. Cl. 1045 (1975). Plaintiffs ask us to go beyond Gila River and reinstate the earlier and broader Commission view.
There is, we agree, substantial support for this theorem since a petition for an accounting from pre-August 1946 forward can, in and of itself,
V.
We come finally to the disposition of the particular cases before us.
a. In The Navajo Tribe, the only motion is that of the defendant for partial summary judgment; plaintiff has made no motion. The Government’s motion is primarily based on its overall contention that there is no Commission jurisdiction on the basis of a "continuing wrong.” For the reasons set forth in Parts II-IV, supra, that aspect of the motion is denied.
The motion also urges, alternatively, that even if there is Commission jurisdiction over "continuing wrongs,” that principle does not cover the miscellaneous agency expenses or the IIM accounts involved here. On the miscellaneous agency expenses, the Commission has already decided (with one dissent) that it had jurisdiction to consider such post-August 1946 disbursements as "continuing wrongs.” 39 Ind. Cl. Comm. 252 (1976). Defendant says that that decision is unsupported by any adequate showing. Since the Navajo Tribe has raised (by affidavits and documents) at least a triable issue of fact as to the existence of a continuing wrongful policy on the part of the Government to disburse Indian monies so as to defray its own expenses, the defendant’s motion will be denied without prejudice as to the miscellaneous agency expenses.
As for the IIM accounts, there has been no final Commission determination. Defendant says that several of those accounts were not in existence or had any activity before August 14, 1946, and therefore as a matter of law there can be no "continuing” jurisdiction as to those accounts. If, however, any substantial monies in those accounts were received from other accounts preexisting the cut-off date, it would seem that the Gila River doctrine could apply (if pre-August 1946 wrongs were shown) and defendant could be ordered to account for those accounts. There may also be other grounds for applying "continuing” jurisdiction, such as that the post-August 1946 IIM accounts were used to defray governmental expenses.
b. The Nez Perce Tribe: Here, too, defendant’s dominant position has been rejected and that part of its cross-motion must be denied outright. Plaintiff has moved for partial summary judgment on certain of its claims (defraying governmental expenses from tribal funds; "reverse spending”; failure to make tribal funds productive) and asks for a trial on the others. See note 8 supra. Defendant tells us, in response, that even on the Gila River principle there has not been a sufficient showing on the three claims for which plaintiff seeks judgment at this time. The factual presentation to the court from both sides on these specific aspects of the case has been too thin and unexplained for us to decide securely, and the appropriate course is to deny ■ both motions without prejudice
Accordingly, the motions before us are denied and granted as prescribed in this Part V of the opinion.
Under the Act of Oct. 8, 1976, Pub. L. No. 94-465, 90 Stat. 1990, as amended by the Act of July 20,1977, Pub. L. No. 95-69, 91 Stat. 273. This legislation provides for (1) the termination of the Commission no later than September 30,1978; (2) transfer by the Commission to this court (prior to December 31, 1976 and thereafter) of any cases which the former determines it cannot completely adjudicate by September 30, 1978; (3) on dissolution of the Commission, transfer of all pending undetermined cases to this court. After transfer, this court has all the powers the Commission has had under the Indian Claims Commission Act.
The Claims Commission Act provides that no claim accruing after the enactment date (August 13,1946) shall be considered by the Commission. 25 U.S.C. § 70a (1976). Claims accruing after that date come directly to this court under 28 U.S.C. § 1505. See Part II, infra, for fuller texts.
We postponed oral argument for some time until at least five active judges were available to hear the cases. (Judge Kashiwa is disqualified and Judge Smith was not a member of the court when the cases were argued and submitted.)
This was Indian Claims Commission Docket No. 69. Comparable, though more specific, accounting claims were stated in Dockets No. 299 and 353. The Government’s accounting purported to cover all three dockets. In the course of the proceedings before the Commission, the latter two dockets were consolidated with No. 69, in order to put all of the Navajos’ accounting claims into one case. See 31 Ind. Cl. Comm. 40, 40-42 (1973).
These decisions are not now before us.
The trial judge’s order was in terms limited to the issue of the "miscellaneous agency expenses,” but we consider that, if permission was needed, defendant was also granted authority to include the problem of the 35 IIM accounts.
Plaintiff Nez Perce Tribe of Idaho was given the right to prosecute these post-June 1951 claims. See 23 Ind. Cl. Comm. 39, 68-69 (1970).
The types of post-1951 tribal wrongs alleged by the Indians had to do with (1) use of tribal funds for defraying the cost of government functions, (2) "reverse spending” by defendant out of tribal funds, e.g., payments out of interest-bearing principal when accumulated interest accounts (non-interest-bearing) could have been used instead, (3) failure to make certain non-interest-bearing funds productive, (4) management of the tribe’s timber, mineral and range assets, and (5) management of plaintiffs funds not deposited in the Treasury. See Plaintiffs Motion for Partial Summary Judgment and Supplemental Accounting, Nez Perce Tribe of Idaho v. United States, No. 179-A (Ind. Cl. Comm. Nov. 22, 1976).
28 U.S.C. § 1505 (1970), based on § 24 of the Claims Commission Act, provides:
"The Court of Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band or group.”
Among those claims was one for allegedly illegal but regular assessment of operation and maintenance charges collected by the defendant for delivery of waters of the Gila River to the Indians. That same claim, as filed in the Commission, is now before us in Appeal No. 4-76, post at 74. For the other pertinent claims of the Gila River Indians in this court see note 13 infra.
The court thought it best "to refrain from passing on such issues at this time, thus leaving the Commission free to determine in the first instance the questions raised, including the scope of its own jurisdiction raised with respect to such claims subsequent to August 13, 1946.” 135 Ct. Cl. 180, 187, 140 F. Supp. 776, 779 (1956). Because of this cautious approach, the court denied defendant’s motion without prejudice and suspended further proceedings in this court pending the outcome of the Indians’ suit before the Commission and any appeals therefrom. 135 Ct. Cl. at 190, 140 F. Supp. at 781.
The order described the Indians’ action before the Commission as "seeking recovery from the defendant herein for allegedly wrongful acts of the defendant which took place prior to the passage of the Indian Claims Commission Act on August 13, 1946, and are alleged to have continued thereafter,” and then described the Indians’ suit in this court as claiming "for all losses sustained by them since 1946 as a result of said allegedly wrongful acts.” 157 Ct. Cl. 941-42 (1962).
The dismissed Gila River claims in this court included: (1) failure and refusal of the Government to deliver to the plaintiffs the natural flow and the stored waters of the Gila River and also for the alleged failure of the defendant to stop various non-
None of these Gila River claims was for a constitutional taking in which the taking wholly occurred before August 13, 1946 and part of the damages became apparent only afterwards. That is how defendant describes Colorado River Indian Tribes v. United States, 156 Ct. Cl. 712 (1962), in which the court, two months before the Gila River order, dismissed those plaintiffs’ suits because the Commission had full jurisdiction.
Here the word is "existing/’ not "accrued.”
In its opinion in 135 Ct. Cl. 180 (1956), the Gila River court expressly distinguished between "accrual” of the claim itself and "accrual” of the damages arising from that claim. See 135 Ct. Cl. at 185, 186, 140 F. Supp. at 778, 779.
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to circumstances and the time in which it is used.”
See, e.g., Burich v. United States, 177 Ct. Cl. 139, 143, 366 F.2d 984, 986 (1966),
Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966), recognized at 487-89, 491, that the Commission had equitable authority to compel a general up-to-date accounting. A general claim for redress of a continuous course of wrongdoing is close kin to such a general accounting.
This court does not have "fair and honorable dealings” jurisdiction under 28 U.S.C. § 1505, but the claims we are considering arise under other heads of jurisdiction, especially subdivisions (1) and (2) of Section 2, 25 U.S.C. § 70a (1976).
Section 23 of the original Act, ch. 959, 60 Stat. 1055 (1946), provided a ten-year life for the Commission if it had not finished its work earlier.
If that were the rule, this court would not have been held competent to call on equitable concepts like reformation and rescission for help in determining monetary claims against the Government. See United States v. Milliken Imprinting Co., 202 U.S. 168, 173-74 (1906); Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966).
In fact, they took a very long period of time. The Navajo accounting was first filed in 1961. See also Part IV, infra.
There also are statutory provisions for investigations by the Commission and for calls upon the Government for information. 25 U.S.C. §§ 701, 70m (1976).
28 U.S.C. § 1500 (1970) could bar a claimant from filing both a "course-of-conduct” or "continuing policy” claim in the Commission (if the claim reached beyond August 13, 1946) and a parallel post-August 1946 suit in this court on the separate "wrongs”, but under the suggested analysis the claimant could use either option without running afoul of § 1500.
The Supreme Court faced a roughly comparable problem of division of jurisdiction — in that instance, between federal and state systems — under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1970). That statute authorized payments under it only for injuries occurring on navigable waters and if recovery could not validly be provided under the Constitution by state law (according to the so-called Jensen doctrine). It proved extraordinarily difficult to determine which particular injuries could validly be covered under state law and many workmen chose either a state or the federal route without being sure whether or not a court or tribunal would ultimately decide that the system selected by that employee could lawfully cover his injury — under the Constitution as interpreted by Jensen (in the case of state systems) or under the federal Act (for those choosing the federal path). Because of these great difficulties and in order to protect employees against the hazards of opting for the "wrong” path, the Supreme Court developed a "twilight zone” theory under which, if there were substantial support for choosing either route, a decision by either system would be upheld. Davis v. Department of Labor, 317 U.S. 249 (1942); Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272 (1959); Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962). In reaching this conclusion, the Court construed the words of the Longshoremen’s Act in the light of its overall aims and of practicalities.
There is no transcript or recording of the oral argument which was had at that time. The Indians’ brief written response opposed dismissal and sought a further suspension of proceedings.
In Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966), the claims arose wholly out of the termination of federal supervision over the Klamath Indians which occurred in and after 1954, and had no roots prior to August 13, 1946.
There is no question of any deliberate entrapment. We assume that, until
I.e., without any preliminary or prior proof of mismanagement or wrongdoing.
In affirming the Commission’s decision on this point in Southern Ute, the court
As already noted, plaintiff has not made any motion of its own for summary judgment and urges only that the defendant’s motion be denied.
By way of perhaps unnecessary caution, we note that, for example, a wrongful course of conduct in using Indian monies to defray governmental expenses could affect various accounts or classifications, and would not necessarily be limited to one particular classification, e.g., "miscellaneous agency expenses.” It would be the general misuse of Indian monies for federal purposes which would be the wrongful course of conduct (whatever the particular monies used); there would not be separate wrongful courses of conduct for each tribal fund used for such ends.
Of course, as stated above we deny with prejudice the defendant’s attack on the general Gila River doctrine. Moreover, we reject outright any suggestion that the compromise settlement of all wrongs up to June 30, 1951, makes it impossible to inquire into pre-August 13, 1946 transactions for the purpose of determining
In determining whether any post-August 1946 transaction, incident, or omission is part of a continuing course of conduct or policy antedating August 14, 1946, the Trial Division can look, of course, to the many particular decisions of the Commission on that general question, but we take no position on any of the Commission’s specific results and do not, in this case, either approve or reject any of those specific holdings. We do, of course, accept the general principle of "continuing” wrongs.
Defendant’s petition for certiorari denied May 14, 1979.
Concurrence in Part
concurring and dissenting:
I agree to this: if the Indian tribal claimant,in a Claims Commission Act proceeding, 25 U.S.C. § 70a, establishes the wrongful invasion of any Indian account in government control, before the cut-off date of August 13, 1946, it has become entitled to a proceeding in equity in which the subsequent management of the fund must be accounted for, any diversion of the moneys into other accounts traced, and any wrongs made good, down to the date of final adjudication, whenever that may be. I base this right on the nature of an accounting as held in Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966). The right to this "accrued” before August 13, 1946, if the first wrong preceded that date, but if it occurred later, there was no timely accrual and no jurisdiction to accord that type of relief.
What, respectfully, I cannot accept, is what the opinion seems to say: that the establishment of a bad precedent,
I’m not convinced that this court intended in the opinion in Gila River Pima-Maricopa Indians v. United States, 135 Ct. Cl. 180, 140 F.Supp. 776 (1956), to announce views in conflict with mine. The problem the court addressed there was "wrongs” before August 13, 1946, with "damages” after. P. 185. The portion of the claims of that tribe that is before us now, Appeal No. 4-76, involves an alleged wrongful assessment of Indians for irrigation water they believed themselves entitled to receive without charge. I am prepared to believe that the Secretary’s regulations, before August 13, 1946, denying such entitlement "accrued” all at once a claim for recovery of all moneys exacted from the Indians for water both before and after that date. This does not require the "intuitive leap” that the electric range - copying machine situation I have postulated does. I do not think any of the claims in that case did. Our decision on their War Relocation claims, 199 Ct. Cl. 586, 467 F.2d 1351 (1972), reveals no problem of wrongs after August 13, 1946.
The court in the volume 135 case quite obviously used the words "continuing claim” when it meant the opposite. The phrase, as used in the cases cited in Judge Davis’ n. 17, means a claim that does not accrue all at once. It accrues by degrees, whenever a new money payment becomes due.
An Indian claim that accrued only after August 13, 1946, may be now unenforceable in any tribunal. In general the statutory scheme under the present 28 U.S.C. § 1505 appears to be that if the claim accrued only after August 13, 1946, the tribal claimant must come under the regular jurisdictional categories of section 1491, with the single addition of claims founded on treaties. This excludes "fair and honorable dealings” claims, other moral claims, if any, and equitable accounting claims as held in Klamath and Modoc Tribe, supra. The court seems to say in dictum that this does not exclude very much, but that remains to be determined. It will be the issue, e.g., in Mitchell v. United States, Nos. 772-71 through 775-71, now pending, and no doubt in many other cases. Congress clearly intended a difference of substance to turn on whether the claim accrued before or after August 13, 1946.
It is unfortunate if either the court or the defendant has misled Indian claimants, and undoubtedly, the distinctions that must be drawn do not impress the mind as just ones. I surmise that Congress in 1946 supposed injustices to Indians to be matters of history, so that there was no need for the future for tribes to have any different standing than other Tucker Act claimants. That we have so many allegations of wrong courses of conduct, whether "continuing claims” or not, passing to and through the deadline dates, presents an unforeseen problem, and to put it bluntly, a mess.
The Supreme Court’s "snail darter” decision, Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), appears, among other significant aspects, to announce an end to the practice of trying to "fix up” defective legislation by judicial decision. Absent constitutional factors not here involved, it is the duty of Congress and Congress alone to correct its own errors. Here, initial congressional misconceptions have consequences exacerbated by misunderstandings and changes in the government’s position.
In pursuit of its laudable aims, the majority glosses entirely too lightly over the doctrine of strict construction of the consent to be sued. The truth is that the original Tucker Act, 25 Stat. 505, Act of March 3, 1887, consented to suits in respect of claims against the United States when the party would be entitled to redress, if the United States were suable, in "equity or admiralty.” United States v. Jones, 131 U.S. 1 (1889) largely eliminated this so far as equity was concerned, holding that a suit for specific performance was not consented to. Thus the cases as to reformation and recision of contracts, referred to in the court’s f.n. 21 merely preserved remnants of a grant of equity jurisdiction which, by the statutory language alone, was seemingly much broader. They do not prove the consent to be sued is not construed strictly. Similarly, the grant of admiralty jurisdiction went by the board in Matson Navigation Co. v. United States, 384 U. S. 352 (1932). This court now cites Amell v. United States, 384 U.S. 158 (1966), but that case must be regarded as somewhat of a sport. Mr. Justice Harlan’s dissent is in its reasoning closer to the usual approach of his Court to consent to be sued issues. United States v. Emery, 237 U.S. 28 (1915), construed the original Tucker Act to allow tax refund suits, Mr. Justice Holmes saying at p. 32—
* * * [It is an] inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye. * * *
But this cannot be taken as a safe guide to the law as it is today. The Congress deemed it necessary to ratify the result in what is now 28 U.S.C. § 1346, stating that the jurisdiction of district courts is "concurrent” with that of the Court of Claims. The rule disfavoring repeals by implication does not apply to repeals by implication of consents to be sued in the Court of Claims; this is the necessary conclusion from the Matson decision, supra. The Congress later ratified the result of the Matson decision, as set forth in the dissent in Amell. I stated for this court in Denver & Rio Grande Western R.R. v. United States, 205 Ct.
The rule of strict construction is very much alive in our time, as witness United States v. King, 395 U.S. 1 (1968); United States v. Testan, 424 U.S. 392 (1976); and United States v. Hopkins, 427 U.S. 123 (1976), all reversing decisions of this court on consent to be sued issues. I believe a fair construction of these and earlier cases is that to be suable, a claim must (a) come within the express literal language of a statutory consent to be sued, and (b) must also come within the general congressional scheme as judicially conceived. Hopkins’ claim failed under the first test though it might have passed the second. To give equal rights to employees of certain non-appropriated agencies, Congress extended the Tucker Act jurisdiction, but unfortunately said it extended to contracts of such agencies. Since most of their employees, like those of other parts of the government serve by appointment and not by contract, held, the extension did not apply to them. The claim in United States v. Jones, supra, failed on the second ground though it passed the first. That is, it was an equitable claim, and Congress in the original Tucker Act said this court should have jurisdiction of equitable claims, but the court just could not conceive, after careful analysis of the whole statutory scheme, that Congress intended this court to be telling executive branch officials what to do, as it would in a specific performance decree. The court below, it may be noted a circuit court under the concurrent jurisdiction, had applied the first test but not the second.
Now, it can hardly be denied that as said above, important limitations on the consent to suit were intended with respect to Indian claims that accrued after August 13, 1946. It appears at least superficially from 28 U.S.C. § 1505 that an Indian tribe can sue on a claim accruing after that date only if it is one of the classes or categories of claims founded on a treaty or on which individual Indians and
The court, in effect, says it can define "claim” any way it pleases, a concept more reminiscent of Alice in Wonderland than of Mr. Justice Holmes. In Grumman Aerospace Corp. v. United States, 217 Ct. Cl., 285, 579 F. 2d 586 (1978), the court made a decision concerning the meaning of the word "claim” that I did not entirely understand, and dissented from in part, but it seems to say a "claim” is a controversy wherein the "claimant” is either resisting or prosecuting a present demand for money. The word "claim” is certainly one of varied meanings, as pointed out in that dissent. The most used and most restrictive definition is perhaps that in United States v. McNinch, 356 U.S. 595, 599 (1958), "a demand for money or some transfer of public property.” In any context except that of legislation granting consent to be sued, it might well be, if the context permitted, a "claim” might include a demand for redress for a wrong not yet committed. The difficulty here is, if that is the meaning, the whole object of Congress in distinguishing between claims accrued before and after August 13, 1946, is frustrated. Our Gila River, vol. 135 decision, did not hold that a "claim” was broad enough "to cover a challenge to a continuing course of conduct injurious to the Indian claimant.” This subtly transfers the unhappily chosen word "continuing” as used therein, from the claim to the course of conduct. 1 do not believe there is any authority for so sweeping a use of the word "claim” but I do not deny
With regard to the meaning of "accruing after August 13, 1946,” the usual rule is that a claim first accrues when all the events to fix the liability of the United States have occurred., Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 161 F.Supp. 409 (1958). Can this be said of a wrong that has not yet occurred?
Is it conceivable that Congress intended post August 13, 1946, wrongs to come in under the broader consent of the Indian Claims Commission Act if the claimant is able to discover another wrong previous to August 13, 1946, that could be called a precedent? The court apparently thinks this is a desirable result, and no doubt it is, but it drastically modifies a carefully thought out consent to be sued. I do not think the rule of strict construction allows such a result to be achieved by attaching unprecedented meanings to words in the consent statute that are common currency among lawyers in more restricted meanings.
I was, I now realize, when I joined this court most deficient in understanding of strict construction of the consent to be sued. I have learned wisdom, not only by writing or participating in decisions that were reversed, but by my efforts towards reconstructing the history of this court. The 'generation of judges contemporary with the Tucker Act were most careful not to exceed the consents Congress had made, conservatively construed, of which history affords numerous examples. Most of the errors along that line, requiring reversal, were by circuit or district judges purportihg to exercise their concurrent under $10,000 jurisdiction. They were presumably less aware of congressional intent in the Tucker Act. There is no more need now than then for our heads to be constantly bloodied in course of efforts to exercise jurisdiction we do not possess. Decisions to "fix up” defective legislation are particularly unfortunate when they deal with the consent to be sued. On the other hand, a corollary I think is that it is our duty to say so when we see a statute (including a consent to suit statute) as defectively drafted, rather than try to extol it as the summit of wisdom, Blackstone fashion. The court’s opinion does a brilliant job along this latter line: no one can read it and not see that corrective