Moose v. U.S.

Decision Date19 April 1982
Docket NumberNo. 80-4373,80-4373
Citation674 F.2d 1277
PartiesEllen MOOSE, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Donald K. Pope, Reno, Nev., for plaintiffs-appellants.

Maria Iizuka, Washington, D. C., argued, for defendants-appellees; B. Mahlon Brown, U. S. Atty., Reno, Nev., on brief.

Before PREGERSON and BOOCHEVER, Circuit Judges, and HALBERT, District Judge. *

PREGERSON, Circuit Judge:

Appellants are Indian children, members of the Southern Paiute tribe, who assert that the federal government has mismanaged

their share of a fund Congress appropriated in 1965 to satisfy a judgment in favor of the tribe. Appellants say that the government at times paid no interest on their share of the fund, at other times paid interest at less than the maximum allowable rate, and since 1972 has allowed a bank to invest the money in securities not guaranteed as federal law requires. Appellants characterize this conduct as a breach of trust obligations for which damages can be awarded under the Tucker Act, 28 U.S.C. § 1346(a)(2). 1 The government's reply is that the fund in question is not held in trust for the minors, so that no breach of trust could have occurred and no Tucker Act jurisdiction exists. The district court agreed and dismissed appellants' claim for damages. It also dismissed the related claim for mandamus relief, holding that no ministerial duties were owed to appellants. Appellants appeal from the dismissal of their complaint. Because we conclude that jurisdiction does exist over appellants' claim for damages, we reverse and remand.

FACTS

In January 1965, the Indian Claims Commission entered a judgment against the United States to compensate the Southern Paiute Tribe for the loss of its aboriginal homelands during the second half of the nineteenth century. Three months later, Congress appropriated some $7.2 million to pay this judgment. 2 The money was turned over to the Secretary of the Interior on May 12, 1965 and deposited in the federal Treasury.

In October 1968, Congress enacted the Southern Paiute Distribution Act (hereinafter "Distribution Act"), Pub.L. 90-584, 82 Stat. 1147. This statute required the Interior Secretary to prepare a roll of Southern Paiute tribal members, to apportion the judgment fund among specified groups of tribal members, and to deposit or distribute those groups' portions of the fund in specified ways. In particular, section 6 of the Act-at issue here-specified that sums payable to Southern Paiute minors "shall be paid in accordance with such procedures as the Secretary determines will best protect their interests, including the establishment of trusts."

The judgment fund was held in the United States Treasury from May 12, 1965 until March 28, 1966, earning 4% interest. From March 28, 1966 until March 5, 1971, the money was invested outside the Treasury. It was again deposited in the Treasury, at 4% interest, from March 5, 1971 until March 31, 1971. From April 1, 1971 until June 6, 1972, the fund earned no interest.

The adult tribal members received their shares (about $7500 each) on June 16, 1971. On June 6, 1972, the Secretary of the Interior entered into an agreement with the Valley Bank of Nevada, under which the bank was to hold as trustee the Southern Paiute minors' portion of the judgment fund. About.$1.2 million was thus deposited with Valley Bank. Appellants allege that the bank invested the funds in common stocks and bonds that decreased in value.

Appellants, several Southern Paiute minors, filed the instant class action on April 8, 1977, on behalf of all 160 Southern Paiute minor beneficiaries of the judgment fund. In essence, appellants alleged that the government breached both its fiduciary duties as the trustee of the minors' portion of the judgment fund and duties imposed by statutes dealing with Indian trust

                funds.  3  The conduct alleged to have breached these duties was the failure of the government, at various times, to invest the funds at all; its failure, at other times, to invest them at the maximum allowable rates, and its permitting Valley Bank to invest the funds in improperly secured risks and to pay federal income tax on earnings from the investments.  Appellants requested: (1) money damages equal to the difference between the current value of each minor's share and its value had the most advantageous allowable investments been made; (2) an injunction directing the government to cease all illegal investments; and (3) mandamus to compel government officials to calculate what the minors' shares would have been worth had proper investments been made and to terminate the Valley Bank trust and create a new trust.  Jurisdiction was alleged under 28 U.S.C. § 1346(a)(2) (the district court portion of the Tucker Act) and § 1361 (mandamus jurisdiction of district courts).  The district court, however, dismissed the action for lack of jurisdiction in May 1980.  This appeal followed
                
DISCUSSION

The Tucker Act, which appellants contend grants the district court jurisdiction over their damages claim, is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). 4 Appellants must rely on some other federal law to create the substantive right-"the asserted 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.' " Id. at 400, 96 S.Ct. at 954, quoting Eastport Steamship Corp. v. United States, 372 F.2d 1002, 1009 (Ct.Cl.1967).

Appellants contend that several statutes mandate compensation for the alleged mishandling of their fund. One is section 6 of the Distribution Act itself. Appellants argue that under this statute the United States held their fund as a trustee, so that the statute implicitly mandates compensation for breach of the trust obligations. Appellants also cite 25 U.S.C. §§ 159, 161a, and 162a. Sections 161a and 162a impose specific obligations on the United States with respect to funds that it holds in trust for Indians, 5 and appellants argue that the government breached these obligations and must compensate for this breach of trust. Section 159 requires the government to pay 6% interest on all funds held in the Treasury and "due to incompetent or orphan Indians."

We need not, and do not, reach the question whether section 159 has any application here. 6 As for sections 161a and 162a, their application is explicitly limited to Indian trust funds. The crucial question, therefore, is whether the fund in controversy here is one that the United States holds in trust for the appellants.

We believe that the United States does hold the minors' portion of the Southern Paiute judgment fund in trust for the minors. Section 6 of the Distribution Act requires that the government deal with that fund so as to "best protect" the minors' interests. This language manifests Congress's intent that the government hold the judgment fund for the benefit of the minors, which is precisely the intent necessary to create a trust. 7 Explicit use of the word "trust," or any other particular language, is not necessary. 8 This general rule applies with perhaps greater than usual force to a situation where the United States holds funds for an Indian tribe, because of the traditional and repeated emphasis on the fiduciary nature of the United States-Indian relationship. 9 Indeed, where the United States holds funds for Indian tribes, a trust relationship exists unless there is explicit language to the contrary:

(W)here the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.

Navajo Tribe v. United States, 624 F.2d 981, 987 (Ct.Cl.1980). 10

It is noteworthy that Congress has explicitly referred to another one of the judgment funds appropriated by the Second Supplemental Appropriations Act of 1965-the Ute fund-as a "trust fund." 11 The Southern Paiute fund was appropriated by the same 1965 act. Nothing in that act differentiates the Ute judgment fund from the Southern Paiute fund, 12 and it is therefore plausible to assume that the Southern Paiute fund was also intended to be a trust fund.

Furthermore, a statute enacted several years after the Distribution Act to establish a uniform procedure for distributing Indian judgment funds indicates a congressional understanding that all such funds are held in trust. 13 Section 7 of that statute-now 25 U.S.C. § 1407-states that "(n)one of the funds distributed per capita or held in trust under the provisions" of the statute are to be taxed. This language indicates that Congress regarded all undistributed Indian judgment funds as "held in trust." The Court of Claims has expressed the same opinion:

It is clear from past opinions of this court and of the Supreme Court, and from the actions of both Congress and the Executive Branch, that funds appropriated to Indians to satisfy judgments of the Indian Claims Commission or of this court, as well as funds produced by tribal activities, are, when kept in the Treasury, held in trust for the Indians.

Cheyenne-Arapaho Tribes v. United States, 512 F.2d 1390, 1392 (Ct.Cl.1975). 14

We are aware that the Tenth Circuit has recently concluded that the Distribution Act did not create a trust, because it nowhere "indicated that the judgment fund in question was to be held in trust pending distribution." Whiskers v. United States, 600 F.2d 1332, 1335 (10th...

To continue reading

Request your trial
14 cases
  • United States v. Mitchell
    • United States
    • U.S. Supreme Court
    • June 27, 1983
    ...L.Ed. 1480 (1942); United States v. Creek Nation, 295 U.S. 103, 109-110, 55 S.Ct. 681, 683-684, 79 L.Ed. 1331 (1935); Moose v. United States, 674 F.2d 1277, 1281 (CA9 1982); Whiskers v. United States, 600 F.2d 1332, 1335 (CA10 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 7......
  • Wolfchild v. United States
    • United States
    • U.S. Claims Court
    • December 21, 2010
    ...tribes are held in trust." (quoting Rogers v. United States, 697 F.2d 886, 890 (9th Cir. 1983) (emphasis added)); Moose v. United States, 674 F.2d 1277, 1281 (9th Cir. 1982) ("[W]here the United States holds funds for Indian tribes, a trust relationship exists unless there is explicit langu......
  • Quechan Indian Tribe v. U.S.
    • United States
    • U.S. District Court — Southern District of California
    • January 10, 2008
    ...86 L.Ed. 1480 (1942); United States v. Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 37 L.Ed.2d 22 (1973); see also Moose v. United States, 674 F.2d 1277 n. 9 (9th Cir.1982); Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986 (9th Cir.2005); Bedoni v. Navajo-Hopi Indian Relocation Com'n, 878 F.2d 1......
  • Cobell v. Babbitt, Civil No. 96-1285(RCL).
    • United States
    • U.S. District Court — District of Columbia
    • November 5, 1998
    ...than heirship determinations. The Court of Appeals for the Ninth Circuit has reached a similar conclusion. In Moose v. United States, 674 F.2d 1277 (9th Cir. 1982), members of the Southern Paiute Indian tribe brought a class action suit to, in part, seek a writ of mandamus to compel the gov......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT