Short v. U.S., s. 93-5193

• Citation: 50 F.3d 994
• Decision Date: 14 March 1995
• Docket Number: 93-5209,94-5020 and 94-5025,93-5208,Nos. 93-5193,94-5016,s. 93-5193
• Parties: Jessie SHORT and 104 named Plaintiffs, and Rethema I. Barber and 2,499 other named Plaintiffs, Plaintiffs/Cross-Appellants, and Dennis W. Barnes and the remaining 1,139 Plaintiffs, Plaintiffs, v. The UNITED STATES, Defendant-Appellant, v. The HOOPA VALLEY TRIBE OF INDIANS, Defendant-Appellee/Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 994

50 F.3d 994

Jessie SHORT and 104 named Plaintiffs,

and

Rethema I. Barber and 2,499 other named Plaintiffs, Plaintiffs/Cross-Appellants, and Dennis W. Barnes and the remaining 1,139 Plaintiffs, Plaintiffs, v. The UNITED STATES, Defendant-Appellant, v. The HOOPA VALLEY TRIBE OF INDIANS, Defendant-Appellee/Cross-Appellee.

Nos. 93-5193, 93-5208, 93-5209, 94-5016, 94-5020 and 94-5025.

United States Court of Appeals Federal Circuit.

March 14, 1995.

Edward J. Shawaker, Atty., Environment & Nat. Resource Div., Washington, DC, argued, for defendant-appellant. With him on the brief, were Lois J. Schiffer, Acting Asst. Atty. Gen., Environment & Nat. Resources Div. and Jacques B. Gelin, Atty. Also on the brief, was Myles E. Flint, Deputy Asst. Atty. Gen., Environment & Nat. Resources Div.

William K. Shearer, Duke, General, Shearer & Bregante, San Diego, CA, argued, for plaintiffs/cross-appellants, Short & Barber. William C. Wunsch, Falkner, Sheehan & Wunsch, San Francisco, CA, argued, for plaintiffs/cross-appellants, Short & Barber. With him on the brief, were Weyman I. Lundquist, Robert S. Venning and Michael S. Greenberg, Heller, Ehrman, White & McAuliffe, San Francisco, CA.

Thomas P. Schlosser, Pirtle, Morisset, Schlosser & Ayer, Seattle, WA, argued, for defendant-appellee/cross-appellee, The Hoopa Valley Tribe of Indians. Evelyn M. Conroy, Jolles, Bernstein & Garone, P.C., Portland, OR, argued, for defendant-appellee/cross-appellee.

Before MAYER, MICHEL and RADER, Circuit Judges.

Opinion for the court filed by Circuit Judge MAYER. Dissenting in part opinion filed by Circuit Judge MICHEL.

MAYER, Circuit Judge.

The United States appeals a judgment of the United States Court of Federal Claims, No. 102-63 (July 29, 1993), ordering the United States to pay the plaintiffs certain sums plus interest. The plaintiffs, several thousand American Indians, cross-appeal certain judgments and orders relating to the proper measure of their damages; they also contest the court's decision to dismiss the claims of certain plaintiffs who died after the suit was filed but before being named in the amended petition. We affirm.

Background

We provide only a brief synopsis of the facts of this case because they are set forth at great length in the many proceedings over the past thirty-two years. See, e.g., Short v. United States, 12 Cl.Ct. 36, 38-42 (1987) ("Short IV ").

The Bureau of Indian Affairs of the Department of the Interior ("BIA") manages trust funds in the names of certain Indian tribes and reservations. One such trust fund holds proceeds from sales of timber and other resources of the Hoopa Valley Reservation in California. Beginning in the 1950s, the United States managed timbering activities on the reservation that produced significant revenue--over one million dollars per year as of 1972.

Members of the Hoopa Valley Tribe, which was formed in 1950, make up the minority of the Indians living on the Hoopa Valley Reservation. The majority of those living on the reservation are of Yurok descent. See Short v. United States, 486 F.2d 561, 562, 202 Ct.Cl. 870 (1973) ("Short I "); Short IV, 12 Cl.Ct. at 38. Beginning in 1955, the United States made per capita payments from the proceeds of the Hoopa Valley Reservation to members of the Hoopa Valley Tribe, but not to other Indians of the Reservation, who were not, until recently, members of any organized tribe ("nonmembers"). See Short IV, 12 Cl.Ct. at 38 ("To date, efforts to organize a Yurok tribal government have been unsuccessful, largely because of this case."); id. at 40 ("[O]n the Hoopa Valley Reservation, ... the only formally organized tribal government includes only a fraction of the Indians for whom the Reservation was established...."). In 1963, several thousand nonmembers filed suit against the United States in the Court of Claims, alleging that the United States had breached its fiduciary duty by distributing portions of the Hoopa Valley Reservation trust fund per capita only to members of the Hoopa Valley Tribe and to the Hoopa Valley Tribe itself. In 1973, the Court of Claims upheld the plaintiffs' cause of action and held the United States liable for discriminatory per capita payments beginning in 1957. ¹ See Short I, 486 F.2d at 562.

From 1973 to the present, the Court of Claims, the Claims Court/Court of Federal Claims, and this court have issued many decisions and orders clarifying the scope of the government's liability and the extent of the plaintiffs' damages. In 1981, the Court of Claims denied the government's motion to substitute the as-yet unformed "Yurok Tribe" for the plaintiffs, and denied the Hoopa Valley Tribe's motion to dismiss the suit on the ground that it presented a nonjusticiable political question. See Short v. United States, 661 F.2d 150, 154-59, 228 Ct.Cl. 535 (1981) ("Short II "). In 1983, this court rejected a challenge to the jurisdiction of the Court of Claims and the Claims Court by the government and the Hoopa Valley Tribe, and affirmed the trial judge's standards for determining whether the individual plaintiffs were "Indians of the Reservation" who were entitled to recover. See Short v. United States, 719 F.2d 1133, 1137-43 (Fed.Cir.1983) ("Short III ").

Despite the 1973 liability decision, the BIA continued to make payments only to Hoopa Valley Tribe members. The only difference was that, following the 1973 decision, the BIA held seventy percent of the unallotted Hoopa Valley Reservation income in an escrow fund and made payments only out of the remaining thirty percent of the reservation proceeds. At the time, the population of the reservation was roughly thirty percent Hoopa Valley Tribe members and seventy percent nonmembers. In 1987, the Court of Federal Claims held that the plaintiffs had no right to the undistributed "seventy percent fund" until the Secretary of the Interior took some action related to those funds, such as authorizing payments from it. See Short IV, 12 Cl.Ct. at 44. The court also held that the plaintiffs' damages for wrongful exclusion from the per capita distributions to Hoopa Valley Tribe members should be calculated by dividing the total amount of money previously distributed per capita by the total number of eligible "Indians of the Reservation," including those who already received payment. See id. at 41. The plaintiffs claimed that they should receive an additional recovery for non-per capita distributions to the Hoopa Valley Tribe, but the trial court held that "[t]ribal or communal assets that have not been individualized may not be awarded" to individuals suing under 28 U.S.C. Sec. 1491. Short IV, 12 Cl.Ct. at 40. The court awarded the plaintiffs simple interest from the date of each distribution, based on the statutes governing the handling of tribal trust funds. See id. at 42-44; see also Short v. United States, 25 Cl.Ct. 722, 724-28 (1992) ("Short V ") (denying the government's request for reversal of Short IV and reaffirming the interest award); Short v. United States, No. 102-63, at 2-4 (Ct.Fed.Cl. Sept. 15, 1992) (order determining the rate of interest); Short v. United States, 28 Fed.Cl. 590 (1993) (order clarifying the amount of interest to which plaintiffs were entitled).

In 1988, with the seventy-percent fund still undistributed, Congress passed the Hoopa-Yurok Settlement Act, Pub.L. No. 100-580, 102 Stat. 2924 (1988) (codified at 25 U.S.C. Secs. 1300i to 1300i-11 (1988 & Supp. V 1993)). This act divided the Hoopa Valley Reservation into two separate reservations: the Hoopa Valley Reservation and the Yurok Reservation. The seventy-percent fund was combined with other funds to form a "Settlement Fund," and Congress required the Secretary to apportion this fund between the Hoopa Valley Tribe and the Yuroks roughly in proportion to population. With the exception of a one-time per capita payment of $5000 to Hoopa Valley Tribe members, the Secretary was prohibited from making any per capita distributions from the apportioned funds for ten years. See 25 U.S.C. Sec. 1300i-6(b). In April 1991, the $5000 payment was distributed to Hoopa Valley Tribe members. In 1993, the Court of Federal Claims held that the plaintiffs were not entitled to damages for the 1991 per capita distribution, because it was specifically authorized by the Settlement Act. See Short v. United States, 28 Fed.Cl. 590, 594-95 (1993) ("Short VI "). In 1989, the Claims Court denied the plaintiffs' claim for group damages under 28 U.S.C. Sec. 1505 (1988 & Supp. V 1993). See Short v. United States, No. 102-63, at 3-10 (Cl.Ct. July 25, 1989) (order).

On July 29, 1993, the Court of Federal Claims disposed of all claims in a final judgment awarding each successful plaintiff a per capita share arrived at by dividing the total amount disbursed to the tribe members by the new total number of Indians of the Reservation. The court also awarded each plaintiff interest beginning with the dates of the distributions to the members. It also held that the plaintiffs were not entitled to a share of the disbursements to the tribe directly because they benefited from them, and that the plaintiffs were not yet entitled to any amounts still being held in escrow. Finally, the court dismissed the claims of certain deceased Indians who died after the suit was filed but before being named in the petition.

Discussion

A. Interest as Part of the Plaintiffs' Damages

The government's appeal presents a single issue: whether the Court of Federal Claims erred in ordering the United States to pay interest to each successful plaintiff from the date of each per capita distribution to the members of the Hoopa Valley Tribe. See Short IV, 12 Cl.Ct. at 43. The government continues to argue on appeal that no statute entitles the plaintiffs to prejudgment interest on their awards. See 28 U.S.C. Sec. 2516(a) (1988 & Supp. V 1993) ("Interest on a claim against the United States shall be allowed in a judgment of the United States Court of Federal...