Duncan v. United States

• Decision Date: 02 December 1981
• Docket Number: No. 10-75.,10-75.
• Citation: 667 F.2d 36
• Parties: Mabel DUNCAN, et al. v. The UNITED STATES.
• Court: U.S. Claims Court

667 F.2d 36

Mabel DUNCAN, et al. v. The UNITED STATES.

No. 10-75.

United States Court of Claims.

December 2, 1981.

George Forman, Escondido, Cal., attorney of record, for plaintiffs. James F. King, Jr., Willits, Cal., of counsel.

Ezra D. Rosenberg, Washington, D. C., with whom was Asst. Atty. Gen., James W. Moorman, Washington, D. C., for defendant.

Before DAVIS, NICHOLS and KASHIWA, Judges.

ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO DISMISS

DAVIS, Judge:

This is our second consideration of this Indian breach-of-trust case. In the previous decision (Duncan v. United States, 220 Ct.Cl. 1, 597 F.2d 1337 (1979)), we held that the court had cognizance of the claims under 28 U.S.C. § 1491, and that the plaintiffs had a right to recover on much (though not all) of their demands. On the Government's petition for certiorari, the Supreme Court vacated our judgment and remanded the case "for further consideration in light of United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)." United States v. Duncan, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 255 (1980). On that remand, we received further briefs and had oral argument. We have reconsidered the case, not only in the light of the Supreme Court's Mitchell ruling, but also of our recent en banc decision in Mitchell II, Mitchell v. United States, 664 F.2d 265 (1981) (likewise on remand from the Supreme Court). We adhere to our prior holding, with some modifications.

I Background

Plaintiffs, Pomo Indians of the Robinson Rancheria in Northern California, have attacked the termination by the United States of their rancheria status in 1965. In the companion District Court case against the Secretary of the Interior (and other federal officials), Duncan v. Andrus, 517 F.Supp. 1 (N.D.Cal.1977), they obtained declaratory and injunctive relief grounded on that court's determination that the termination was unlawful. No appeal was taken from that decision. In the present suit (initially part of the District Court litigation but transferred here under 28 U.S.C. § 1406(c)), claimants seek monetary recovery for damages resulting from the invalid termination. They have moved for partial summary judgment on liability, mainly urging that the 1965 termination was a breach of trust and rendered the Federal Government responsible for various pecuniary damages. Defendant has cross-moved to dismiss for lack of jurisdiction and because plaintiffs' claims are allegedly barred by the statute of limitation.

The facts on which we base this decision are presented in plaintiffs' uncontested affidavit and in the exhibits accompanying their motion for partial summary judgment. The primary exhibit is a detailed "Agreed Statement of Facts," filed by both sides (plaintiffs and the defendant Government officials) in the District Court case, Duncan v. Andrus, supra. This "Agreed Statement" was specifically adopted by the District Court. That court's opinion (which also contains its independent findings) is likewise a source of underlying predicates for our determination; under the principles of collateral estoppel there can be no relitigation of the issues determined in that related proceeding by the same plaintiffs against high federal officials (acting in their official capacity). See, e.g., Edgar v. United States, 145 Ct.Cl. 9, 171 F.Supp. 243 (1959); McGinty v. United States, 151 Ct.Cl. 399, 403 (1960), cert. denied, 368 U.S. 867, 82 S.Ct. 115, 7 L.Ed.2d 63 (1961); Restatement (Second) of Judgments, § 80, Comment e at 22-23, Reporter's Note at 29 (Tent. Draft No. 2, 1975).¹

Rancherias are numerous small Indian reservations or communities in California, the lands for which were purchased by the Government (with Congressional authorization) for Indian use from time to time in the early years of this century — a program triggered by an inquiry (in 1905-06) into the landless, homeless or penurious state of many California Indians. We are now concerned with the Robinson Rancheria (in Lake County California) which consists of the Rancheria proper and a nearby uninhabited wood reserve, known as the "woodlot." The Rancheria land was purchased in 1909 under authorization contained in Indian appropriations acts of 1906 and 1908. The Rancheria was occupied by a California band of Pomo Indians and the land was informally assigned to families of that band.

After several investigations and much debate, Congress in 1958 passed an act providing for the termination of various rancherias and reservations, including the Robinson Rancheria, Pub.L.No.85-671, 72 Stat. 619 (1958) (the "Rancheria Act"). This law provided for termination of the special status (as Indian lands) of various California rancherias upon approval by a majority of the affected Indians of a final distribution plan. Section 3 of the Act directed the Secretary to undertake various construction projects and improvements on the Indian land before conveying it under the distribution plan. Section 3(c), which founds most of the gravamen of plaintiffs' complaint, required the Secretary to, "install or rehabilitate such irrigation or domestic water systems as he and the Indians affected agree, within a reasonable time, should be completed by the United States." Rancheria Act, 72 Stat. 619, 620 (1958).² Under the Act, termination of the Rancheria ended the rights of the Indians to receive special federal services qua Indians, and exposed Rancheria lands to state tax liability and regulations. Rancheria Act § 10(b), 72 Stat. 619, 621 as amended by Pub.L.No.88-419, § (h), 78 Stat. 390, 391 (1964); see Rancheria Act § 2(d), 72 Stat. 619.

Pursuant to the Act, the Secretary of the Interior developed a distribution plan for the Robinson Rancheria which won majority approval in March 1960. The plan provided for distribution of Rancheria lands to 28 named Indians and for the woodlot and certain community property to be conveyed to an association of the Robinson band. Although distribution of Rancheria assets was completed in 1963, final termination was delayed by negotiations over construction of a sewage system. A final termination notice was published in the Federal Register on September 3, 1965. 30 Fed.Reg. 11,330-31 (1965).

Despite serious and well-known water shortages at the Rancheria (the water supply was not sufficient for reasonable domestic needs and was inadequate to irrigate domestic gardens or farm lands), the Secretary made no significant provision for the improvement of Rancheria water supplies prior to termination. The only agreement relating to additional water supplies was a statement in the distribution plan that:

The Indians of Robinson Rancheria request that the Bureau of Indian Affairs undertake the following actions: * * *

(2) Provide water for any residence under construction that is as much as fifty percent completed within a ninety-day period after acceptance of this plan by a majority of the adult Indian distributees, as provided in Section 2(b) of Public Law 85-671.

This statement does not guarantee an adequate year-round water supply, and the record does not indicate how many, if any, of the affected Indians had houses fifty percent complete within the requisite 3-month period.

Similarly, the existing Rancheria sanitation system was grossly inadequate. Most homes lacked any internal plumbing, and there was no water-carried waste system on the Rancheria. After learning of the 1959 statute authorizing the Surgeon General's office to construct water disposal systems on Indian lands, the Robinson band requested a sewage system. See Pub.L.No.86-121, § 1, 73 Stat. 267 (codified at 42 U.S.C. § 2004a (1976)). The Public Health Service did install some septic tank and absorption field facilities pursuant to a 1964 agreement with the Indians, but some of the absorption fields proved inadequate and no adequate water-carried sewage system was ever provided.

After the initial distribution of Rancheria assets in 1961, Lake County imposed a real property tax on lands held by the Robinson band. This taxation continued until 1977, when the District Court found that the Robinson Rancheria had been unlawfully terminated. Duncan v. Andrus, supra, 517 F.Supp. at 6 (N.D.Cal.1977).³ That court granted various types of nonmonetary injunctive and declaratory relief, including (a) voiding of the termination insofar as it ended the plaintiffs' status as Indians and their eligibility for federal services and benefits provided to Indians by the United States, (b) retention by the plaintiffs (and all dependent members of their families) of their status as Indians under federal law, (c) continued application to the Indians of the Robinson Rancheria of all statutes of the United States which affect Indians because of their status as Indians, and (d) restoration of trust status to the land and assets of the Robinson Rancheria where possible.⁴

II Bearing of Supreme Court's Mitchell Opinion

The Supreme Court's Mitchell opinion, which we were instructed to consider on remand, does not directly call for or suggest any change in our prior ruling. The holding of Mitchell is that, in view of its objectives and legislative history and background, the General Allotment Act, 25 U.S.C. §§ 331-358, did not create any fiduciary responsibility in the United States for management of allotted forest lands. 445 U.S. at 542, 546, 100 S.Ct. at 1354, 1356.⁵ The Court expressly left open the issue of whether a statute imposing on the Government general fiduciary duties toward the Indians would constitute a waiver of sovereign immunity. 445 U.S. at 542, 100 S.Ct. at 1354. Here we have that very case. The plaintiffs have always urged (and we previously held) that Congress has created, in legislation other than the General Allotment Act, a general trust relationship toward them as Indians which enables them to sue in this court on money claims for breach of trust. Mitchell leaves them free to make that...