Ellen Moose v. United States of America

674 F.2d 1277, 1982 U.S. App. LEXIS 20006

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 1982
• Docket: 80-4373
• Status: Published

Opinions

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 Interi- or 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 Cir. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). Whiskers, however, is clearly distinguishable because it involved a different portion of the Distribution Act. Appellants there contended that section 1 of the Distribution Act, which required the government to prepare a roll of members of the Southern Paiute tribe, imposed a trust obligation that the government violated by making inadequate efforts to enroll eligible tribal members living in remote areas. Section 6 of the Act, which we find manifests Congress’s intent to impose trust obligations on the government vis-a-vis the Southern Paiute minors, was not at issue in Whiskers.

The Whiskers court did state, however, that where Congress declares that the government holds funds in trust for Indians, it thereby waives sovereign immunity with respect to damage claims for breach of that trust. Whiskers, supra, 600 F.2d at 1335. We agree with this statement, which is simply an application of the general rule that a trustee can be held liable for losses caused by breach of trust obligations.¹⁵ We therefore conclude that since under section 6 of the Distribution Act the government holds the judgment fund in trust for the Southern Paiute minors, those minors may bring an action for money damages for breach of the trust obligations.

This conclusion in no way conflicts with United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980), in which the Court rejected contentions that the government had breached fiduciary obligations owed to the Quinault Indian Tribe and individual Indians by improperly managing timber resources on reservation land. Mitchell left open the question whether the general rule that a trustee is liable for damages caused by breach of trust applies against the United States. The Court explicitly declined to “consider whether, had Congress actually intended [the statute in question] to impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee, the Act would constitute a waiver of sovereign immunity.” 445 U.S. at 542, 100 S.Ct. at 1354. Indeed, on remand, the Court of Claims specifically stated that the rule that “[a] trust normally entails the right to compensation for the trustee’s breach” would be applied against the United States where the statute creating the trust “does not in any way suggest otherwise.” Mitchell v. United States, 664 F.2d 265, 271 (Ct.Cl.1981).

Moreover, Mitchell is distinguishable on its facts from the instant case. The actual holding in Mitchell was that the particular statute plaintiffs there relied upon created only a limited trust that did not include any duty to manage timber resources. Although the United States held the Indians’ land in trust, Congress intended that the Indians, rather than the government, were to be responsible for managing that land. 445 U.S. at 542-43, 100 S.Ct. at 1354. No analogous holding is possible here. The United States held the minors’ judgment fund, and it was never contemplated that the minors, rather than the government, take charge of the investment of that fund.¹⁶

Thus, we conclude that the United States holds the minors’ portion of the Southern Paiute judgment fund in trust for the minors, and consequently that the United States has waived sovereign immunity with respect to claims for damages for breach of that trust.¹⁷ On remand, the district court will have to determine whether the government’s handling of the minors’ judgment fund breached either the general standards to which trustees are held¹⁸ or the more specific duties that 25 U.S.C. §§ 161a and 162a impose on the management of Indian trust funds.¹⁹

In addition to damages, appellants seek to compel the defendant government officials to calculate what each minor’s share would be worth had the most advantageous allowable investments been made, and to replace the Valley Bank trust with a new trust containing the corrected value of each minor’s share. Appellants rely on 28 U.S.C. § 1361, which grants jurisdiction to the district courts “of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

Mandamus, however, is proper only where the claim its proponent seeks to enforce is clear and certain and the duty of the government official is ministerial and “so plainly prescribed as to be free from doubt.” Lee Pharmaceuticals v. Kreps, 577 F.2d 610, 618 (9th Cir. 1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 847, 59 L.Ed.2d 40 (1979); Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970). That is not the situation here. If the government is held to have breached its trust responsibilities, it will be for the district court, in the first instance, to determine the corrected value of the minors’ shares of the judgment fund. Moreover, we cannot say that the defendant government officials owe a “clear and certain” duty to terminate the trust with the Valley Bank and set up a new one. Even if the Valley Bank trust was administered under improper safeguards, it would seem that government officials have discretion to decide how to remedy the situation (e.g., they could revise the trust agreement but keep the bank as trustee). Therefore, we affirm that portion of the district court’s judgment dismissing appellants’ request for injunctive and mandamus relief.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

1 . This statute gives the district courts concurrent jurisdiction with the Court of Claims over any:

civil action or claim against the United States, not exceeding $10,000 in amount, founded upon either the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

2 . The Second Supplemental Appropriations Act, Pub.L. 89-16, Title IV, 79 Stat. 108, appropriated approximately $31.4 million to pay various judgments against the United States that were enumerated in congressional documents. The Southern Paiute judgment was one of these. Whiskers v. United States, 600 F.2d 1332, 1333 n.2 (10th Cir. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980).

3 . The complaint cited 25 U.S.C. §§ 159, 160, 161, 161a, and 162a. In this appeal, only sections 159, 161a, and 162a are alleged to be applicable.

4 . In Testan the Court was dealing with 28 U.S.C. § 1491, the Court of Claims portion of the Tucker Act, rather than with § 1346(a)(2), which is involved here. But the Court’s reasoning applies with equal force to both sections. Duarte v. United States, 532 F.2d 850, 851 n.2 (2d Cir. 1976).

5 . Section 161a requires the government to pay at least 4% interest on all funds that it holds in trust to the credit of Indian tribes and on which no other interest rate is specifically mandated. Section 162a applies to funds held by the government in trust for Indian tribes or for individual Indians; it authorizes depositing such funds in banks and investing them in government bonds or other securities as to which the United States unconditionally guarantees both principal and interest.

6 . Section 159 applies to funds “due to incompetent or orphan Indians.” Since no allegation has been made that any of the minors are orphans, appellants must be assuming that the minors are all incompetent. But “incompetent” has various meanings, and at least in some contexts it does not automatically apply to minors. See, e.g., Williams v. Hewitt, 181 P. 286, 288 (Okl.1919) (minority not “incompetency” as used in statute protecting property interests of minor and incompetent Osage Indians). The word “incompetent” could, for example, mean “mentally incompetent” — which most minors are not — or “not legally recognized as competent to exercise full rights,” which minors are. Since appellants have failed to explain why they believe the term “incompetents” as used in section 159 applies to the class they represent, we decline to express any opinion as to its applicability.

7 . In deciding whether a trust has been created, the crucial question is “whether the settlor manifested an intention to impose upon himself or upon a transferee of the property equitable duties to deal with the property for the benefit of another person.” 1 A. Scott, The Law of Trusts § 24 (3d ed. 1967). Where a property owner declares that he holds the property for another’s benefit, or transfers the property to another with directions to deal with it for a third person’s benefit, courts have not hesitated to find that a trust was created. Id.

8 . See, e.g., Coleman v. Golkin, Bomback & Co., Inc., 562 F.2d 166, 169 (2d Cir. 1977) (corporation’s agreement to hold 10% of stock option for employee’s benefit created a trust); In re Penn Central Transp. Co., 486 F.2d 519, 524 (3d Cir. 1973), cert. denied sub nom. Baker v. Indiana Harbor Belt R. R. and Chicago & Northwestern Transp. Co. v. Baker, 415 U.S. 990, 94 S.Ct. 1588, 39 L.Ed.2d 886 (1974) (certain monies collected by one railroad were held in trust for others despite “failure to expressly designate the relationship as one of trust”); Community Services, Inc. v. United States, 191 Ct.Cl. 76, 422 F.2d 1353, 1356-57 (1970) (employer’s contributions to insurance company for employees constituted a trust despite absence of specific words of trust).

9 . In one of the earliest decisions on the Indians’ status, John Marshall wrote that “[t]heir relation to the United States resembles that of a ward to his guardian.” Cherokee Nation v. Georgia, 30 U.S. (5 pet.) 1, 17, 8 L.Ed. 25 (1831). The Supreme Court “has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people,” Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942), and has cautioned that such dealings “should therefore be judged by the most exacting fiduciary standards.” Id. at 297, 62 S.Ct. at 1054. The Court continues today to speak of Indians as “ ‘wards of the nation, dependent upon its protection and good faith.’ ” Oliphant v. Su-quamish Indian Tribe, 435 U.S. 191, 208 n.17, 98 S.Ct. 1011, 1020 n. 17, 55 L.Ed.2d 209 (1978), quoting McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973).

10 . The Court of Claims has recently reaffirmed this position. American Indians Residing on the Maricopa-Ak Chin Reservation v. United States, 667 F.2d 980, 1002 (Ct.Cl.1981); Mitchell v. United States, 664 F.2d 265, 270 (Ct.Cl.1981).

11 . 25 U.S.C. § 676a deals with what it refers to as “the trust fund belonging to the ... Ute Indians appropriated by the Second Supplemental Appropriations Act, 1965.”

12 . As explained in note 2 supra, the 1965 act simply appropriated one lump sum to satisfy a number of judgments listed in two congressional documents. Both the Southern Paiute fund and the Ute fund are listed in H.R.Doc. No. 113, 89th Cong., 1st Sess. 15 (1965), simply as “compensation for land,” with nothing said about trust status for either fund.

13 . The statute is the Act of October 19, 1973, Pub.L. 93-134, 87 Stat. 466 (codified at 25 U.S.C. §§ 1401-07). Prior to enactment of this statute, separate legislation — like the Distribution Act involved in the instant case — was required for the distribution of each Indian judgment fund.

14 . Two of the previous decisions on which the ■ Court of Claims relied imposed trust obligations on the government’s handling of Indian funds, despite the absence of any explicit trust language in the statutes creating the funds. In Seminole Nation v. United States, 316 U.S. 286, 293-300, 62 S.Ct. 1049, 1053-1056, 86 L.Ed. 1480 (1942), the Court held that the government’s payment of funds owed to the Seminóles to the tribal council rather than to individual Indians could constitute a breach of trust. In reaching this decision the Court explicitly treated the funds as a' “trust fund,” id. at 293-94, 62 S.Ct. at 1053, although the treaty that mandated the payments nowhere used trust language. Treaty with the Creeks and Seminoles, August 7, 1856, 11 Stat. 699, art. VIII. In Menominee Tribe v. United States, 102 Ct.Cl. 555, 59 F.Supp. 137 (1945), the United States was held to have acted improperly in withdrawing money from a tribal Treasury account bearing 5% interest and replacing it by money in another tribal account bearing only 4% interest. The holding rested partly on the argument that the United States stood in a fiduciary relationship to the tribe, id. at 140-41, although the statutes at issue contained no explicit trust language. (The principal statute was the Act of June 12, 1890, ch. 418, 26 Stat. 146, § 3, which set up the 5% account.)

15 . G. G. Bogert & G. T. Bogert, Handbook of the Law of Trusts § 152, at 562 (5th ed. 1973). In particular, negligence or misconduct in investing trust funds can generate liability for money damages. G. G. Bogert & G. T. Bogert, The Law of Trusts and Trustees § 862, at 18-19 (2d ed. 1962). Damages for breach of this obligation may include compensation for any resulting loss in value of the trust estate, or for any profit the estate would have realized but for the breach. Restatement (Second) of Trusts § 205 (1959).

16 . Mitchell is different from the instant case for a second reason. The Court in Mitchell based its finding that only a limited trust existed partly on the legislative history of the statute creating the trust, and on subsequent legislation. The Court interpreted these factors as indicating that Congress sought to achieve only limited goals by creating a trust status for Indian lands, and that imposing timber-management duties on the United States was not one of these goals. There does not appear to be any corresponding feature of the legislative histories of the statutes involved here that would show that Congress meant to impose only limited management responsibility on the government during the time it held the Southern Paiute judgment fund.

17 . The dissent observes that section 6 directs the Interior Secretary to adopt whatever procedures he determines will best protect the interests of the Southern Paiute minors, “including the establishment of trusts.” It reasons that, the quoted language would be redundant if section 6 itself created a trust fund. We read that language, however, as authorizing the Secretary to place the minors’ money in one or more private trust funds managed by banking or investment concerns (as was done in the instant case). That authorization does not conflict with our conclusion that the government itself held the entire fund as a fiduciary, charged with enforceable trust obligations.

18 . “[T]he trustee is under a duty to make such investments as a prudent man would make of his own property having primarily in view the preservation of the estate and the amount and regularity of the income to be derived.” 3 A. Scott, The Law of Trusts § 227, at 1805-06 (3d ed. 1967).

19 . Aside from these specific statutes, we note that the Court of Claims has said that “[t]he standard of duty as trustee for Indians is not mere reasonableness, but the highest fiduciary standards.” American Indians Residing on the Maricopa-Ak Chin Reservation v. United States, 667 F.2d 980, 990 (Ct.Cl.1981) (footnote omitted).