Mitchell v. United States

DAVIS, Judge,

delivered the opinion of the court:

In United States v. Mitchell, 445 U.S. 535 (1980), the Supreme Court reversed and remanded our prior decision in 219 Ct. Cl. 95, 591 F.2d 1300 (1979). We had held that plaintiff Indians could sue the United States for breach of trust relating to federal management of their forest properties, under the trust created in the General Allotment Act, 25 U.S.C. §§ 331-354, but the Supreme Court ruled, to the contrary, that the trust established by that Act did not extend to the management of the allotted lands.¹ The case was remanded to this court to consider plaintiffs’ other grounds (which we had not reached) for asserting that the Government is liable in money damages for the alleged mismanagement. 445 U.S. at 546 n.7. On remand, we had argument en banc and, except for specified issues, reargument en banc. We now hold that plaintiffs are entitled to proceed on most, but not all, of their specific claims (apart from .the rejected broad-scale claim under the General Allotment Act). Accordingly, we deny, in largest part, defendant’s motion to dismiss.

I

The now relevant facts and allegations are set forth in the Supreme Court’s opinion, 445 U.S. at 536-537 and our previous decision, 219 Ct. Cl. at 97-98, 591 F.2d at 1300-1301. The claims are by Indian allottees of trust lands and timber on the Quinault reservation and by the tribe itself, under the Tucker Act, 28 U.S.C. § 1491 (1976), and its counterpart for Indian tribal claimants, 28 U.S.C. § 1505 (1976). The land is heavily timbered and under various statutes the Federal Government manages it, receives powers of attorney from Indian allottees, contracts for harvesting of timber, and pays the money proceeds to the allottees. Plaintiffs seek to recover from the United States for various alleged deficiencies, including failure to obtain fair market value for timber sold, failure to manage the forests on a sustained yield basis and to rehabilitate the land after logging, failure to obtain any payment or proper payment for some merchantable timber, failure to develop a proper system of roads and easements and exacting improper charges in connection with roads and easements, failure to pay any interest or sufficient interest on monies and funds, exacting excessive administrative fees and charges, and failure to exercise proper care in granting patents to Indians.

Defendant’s motion before us asserts that we have no authority to consider these nonconstitutional claims against the United States, except perhaps for any which may truly relate to plaintiffs’ own monies which have been actually retained or deducted by the Government.

II

The barrier defendant sees is that, in its view, Congress has not consented to such a suit here, either in 28 U.S.C. § 1491 or § 1505, or through any other statute or regulation which plaintiffs invoke. The concept has been phrased in different ways, but the Supreme Court has firmly established that, for a suit against the United States, there must be a waiver of sovereign immunity shown by "clear congressional consent.” United States v. Mitchell, 445 U.S. at 538. For claims not resting on a contract or for the return of money paid to the Government, but, rather, directly founded on or arising under the Constitution, statutes, regulations, or executive orders, the claimants — Indian or not, individual or tribal — must "look beyond [28 U.S.C. §§ 1491, 1505] for a waiver of sovereign immunity with respect to their claims.” Id, at 538-540. Those substantive rights against the Government for monetary relief must exist apart from §§ 1491 and 1505. To allow the claim here in those instances, the Constitution, statute, regulation or order must be capable of being fairly "interpreted as mandating compensation by the Federal Government for the damage sustained.” United States v. Testan, 424 U.S. 392, 400 (1976). It is not enough that the statute (for instance) may ground a claim for specific relief (e.g. injunction, mandamus, or direct statutory review); it is also necessary, for action in this court, that the substantive right granted by Congress extend to entitlement to compensation or money damages. Cf. United States v. Testan, supra, 424 U.S. at 401-02, incl. n.5; Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 608-09, 372 F.2d 1002, 1009-10 (1967).

It is not required, however, that the statute, regulation, or order itself specify that the claimant can bring a lawsuit for compensation in this court (or in the district court if under $10,000). If the source of the substantive right can be fairly read as mandating compensation by the Government, it is needless for Congress to add expressly in that statute that suit may be maintained in this court (or elsewhere) to obtain such monetary compensation. The Tucker Act (28 U.S.C. § 1491) and 28 U.S.C. § 1505 perform that function of giving Congressional consent to jurisdiction in this court over such pecuniary claims. Classic instances of legislation directing compensation, and therefore grounding suit in this court, are the statutes providing for military and civilian pay and allowances (which have not, of course, themselves mentioned suit or the right to sue).² Aside from the few instances of gratuitous benefits in which Congress has provided against any judicial scrutiny at all (e.g. veterans’ benefits), a clear showing that legislation directs compensation or money to be paid to the claimant is enough warrant for a suit in this court under §§ 1491 and 1505.

Nor do we think that the only statutes³ mandating compensation are those which expressly authorize the payment of the money sought (and proved). As we understand them, neither Testan nor Mitchell, supra, excludes all non-express indications of the right to compensation, no matter how strong or compelling they may be. Both opinions teach us to look hard and carefully to see whether the statute should fairly be read as mandating compensation — i.e., that reading should be strong and clear — but the Supreme Court’s decisions do not say that the substantive right to money must always be explicitly stated in the substantive legislation itself. The overriding principle, rather, is that the statute should be read "with that conservatism which is appropriate in the case of a waiver of sovereign immunity” United States v. Sherwood, 312 U.S. 584, 590 (1941). In Testan, for instance, the Court considered all the factors, including but not limited to the absence of an express legislative statement that pay is due for improper classification and the established rule that one is not entitled to the benefit of a position to which one has not been appointed, in deciding that neither the Classification Act nor the Back Pay Act mandated or allowed compensation in those circumstances. Mitchell spoke of "clear” Congressional consent (445 U.S. at 538) and, employing that standard, concluded that the present plaintiffs have no substantive right at all under the General Allotment Act with regard to the alleged mismanagement of their forests and property for which they have brought suit. See note 1, supra. Neither ruling laid down the inexorable requirement of express statement in the legislation of the right to monetary compensation. The only inescapable principle is that Congress’s waiver of sovereign immunity with respept to money compensation must be clear or strong before the court can say that the statute mandates compensation.⁴

Ill

In Mitchell the Supreme Court remanded to us the question whether the other statutes on which these Indians rely created or recognized fiduciary responsibility on the part of the Government for management of the forest lands, or otherwise render the United States liable in money damages for the alleged mismanagement. In this Part III, we consider the three of those statutes which deal directly with federal management of the plaintiffs’ forests and lands.⁵ These three are: the so-called 1910 Act, 25 U.S.C. §§406-407 (1976) (timber sales); 25 U.S.C. §466 (1976) (regulations and sustained yield); and 25 U.S.C. §§318a, 323-325 (1976) (rights-of-way). We hold that (a) these statutes, giving federal officials full authority to manage Indian forest property and land, created a fiduciary relationship; (b) plaintiffs can recover (if they prove their case) for breach of these fiduciary obligations and obtain the compensation provided by the statutes; but that (c) the recovery will not necessarily be equivalent to that imposed on a private trustee managing his beneficiary’s property, but will be limited in reach and scope, though more extensive than defendant would allow.

a. The Government’s supervision and control of the harvesting of Indian timber for the Indians’ benefit — including the impact of the particular statutes invoked by plaintiffs and the regulations under them — has recently been reviewed in detail by the Supreme Court, White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145-148 (1980), in connection with the effect of state taxes on the entire process of managing forest lands. The Court termed this over-all federal control "comprehensive,” involving "day-to-day supervision by the Bureau of Indian Affairs,” and giving the Secretary of the Interior "broad authority over the sale of timber on the reservation.” Id. at 145. ,The statutes provide that timber sales must "be based upon a consideration of the needs and best interests of the Indian owner and his heirs,” 25 U.S.C. § 406(a), and call for Interior’s rules and regulations relating to "the operation and management of Indian forestry units” to be made "on the principle of sustained yield management.” 25 U.S.C. 466. The Secretary is thus specially authorized to promulgate regulations for the operation and management of Indian forestry units, and he has done so in a detailed set. White Mountain Apache Tribe, supra, at 146-48. We note, in addition, that the proceeds of timber sales from Indian forest lands are to "be paid to the owner or owners or disposed of for their benefit” under the Secretary’s regulations, § 406(a), or (in the case of tribal ownership) are to "be used for the benefit of the Indians who are members of the tribe or tribes concerned in such manner as [the Secretary] may direct,” § 407.

The White Mountain Apache Tribe opinion summed up the "overriding federal objective” to be: "guaranteeing Indians that they will 'receive * * * the benefit of what profit [the forest] is capable of yielding * * *’” (quoting the Secretary’s own regulations), and declared that "the Federal Government has undertaken to regulate the most minute details of timber production and expressed a firm desire that the Tribe should retain the benefits derived from the harvesting and sale of reservation timber.” 448 U.S. at 149.

b. Because the forest and property are Indian-owned, this Congressional legislation, envisaging comprehensive operation and management by the Government for the Indians’ benefit, created a fiduciary relationship between Interior and the Indians. We have held that "where 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 of Indians v. United States, 224 Ct. Cl. 166, 178, 624 F.2d 981, 987 (1980). This principle has dominated the Government’s relations with Indian property for about two centuries. See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); United States v. Kagama, 118 U.S. 375, 382 (1886); United States v. Payne, 264 U.S. 446, 448 (1924); Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942); United States v. Mason, 412 U.S. 391, 398 (1973). The long-continuing doctrine of governmental fiduciary obligation in the management of Indian property was, we think, infused into the 1910 and later statutes, even though the word "trust” was not used in that legislation. The General Allotment Act did not itself establish a fiduciary obligation for management of these forest lands (United States v. Mitchell, supra, 445 U.S. 535), but the later Acts we have mentioned (and the ensuing regulations), which dealt specifically with the Indians’ forests, have broadened the special trust imposed by the Allotment Act to create a general fiduciary obligation on the Government in the management and operation of the forest lands with which Interior was entrusted. Nothing in those three Acts says or suggests that Congress wished, contrary to historical principle, to depart from the norm of fiduciary duty. See United States v. Anderson, 625 F.2d 910, 915 (9th Cir.1980), cert. denied, 450 U.S. 920 (1981).⁶

c. The crucial question is whether, and to what extent, Congress has consented to a monetary claim in this court by the Indian plaintiffs for alleged violation of those fiduciary duties. Under the wider statutory provisions relating to pre-August 1946 claims filed before the Indian Claims Commission (United States v. Mitchell, supra, 445 U.S. at 540 n.2), there is no question that such a suit could be brought before the Commission (and continued in this court as the Commission’s successor). Navajo Tribe of Indians v. United States, supra. But the current claims, which arose after 1946 and were filed here in 1971, are controlled by the narrower provisions of 28 U.S.C. §§ 1491 and 1505. See Menominee Tribe of Indians v. United States, 221 Ct. Cl. 506, 516-17, 607 F.2d 1335, 1340-41 (1979), cert. denied, 445 U.S. 950 (1980). For recovery (as we said in Part II, supra), a statute or authorized regulation must clearly mandate compensation.⁷

We think that Congress did mandate, in the three sets of statutes to which we have referred supra,⁸ a restricted degree of compensation for violations of traditional fiduciary responsibilities in the management of Indian property. These are therefore claims for monetary compensation founded on, and mandated by, Congressional legislation. The ultimate principle we find in these Acts is that plaintiffs can sue under that legislation both for (a) any falloff from the income they would have received from their forests and lands if the Government had properly complied with the directives of the statutes and regulations, and (b) the value (or decrease in value) of their property which is lost (or diminished in value) through improper actions of Interior. But there can be no recovery for other, consequential, indirect damages which a private cestui might possibly recover because of his trustee’s derelictions. We now consider the three statutes in turn.

1. 25 U.S.C. §§406-407 (timber sales): As we have pointed out, this legislation (originally enacted in 1910) expressly requires the proceeds of timber sales made by the Government from the individual plaintiffs’ lands to "be paid to the owner or owners or disposed of for their benefit under regulations to be prescribed by the Secretary of the Interior”, § 406(a), and (in the case of the tribe) the proceeds are to "be used for the benefit of the Indians who are members of the tribe or tribes concerned in such manner as [the Secretary] may direct,” §407. These provisions indisputably direct compensation (and therefore allow suit) for the actual proceeds of actual sales not remitted to or used for the Indians. But that is not the outermost limit of the Indians’ right to sue in this court. Congress had a longer reach. It created a fiduciary relationship through this statute and required that sales must "be based upon a consideration of the needs and best interests of the Indian owner and his heirs.” § 406(a). That was always the ultimate goal. The first (1911) Interior Department regulation declared that the legislation called upon Interior to "so manag[e] the Indian forests as to obtain the greatest revenue for the Indians consistent with a proper protection and improvement of the forests.”

Having imposed this umbrella of fiduciary relationship and given Interior comprehensive over-all authority for the Indians’ benefit, Congress did not, we think, confine the Indians to the actual proceeds of actual sales, barring them entirely from seeking (under the proper standard, see Part III, D, infra) compensation for other violations by Interior of its fiduciary duty "to obtain the greatest revenue for the Indians consistent with a proper protection and improvement of the forests,” Id. To us, Congress has authorized the Indians to claim compensation for a breach of the trust Congress has itself fixed in order that the beneficiaries shall receive the benefits Congress plainly contemplated for them. A trust normally entails the right to compensation for the trustee’s breach ( G. Bogert, The Law op Trusts & Trustees §862 (2d ed. 1965); 3 A. Scott, The Law of Trusts § 205 (3d ed. 1967)), and this statute does not in any way suggest otherwise. Under the terms of the statute, therefore, plaintiffs can recover the difference between the actual proceeds and the greatest appropriate revenue which should have been obtained. The statutory term, "proceeds” of tribe sales, can and should be read, in context, as the proceeds of the sales which should have been made under proper management — not merely the actual proceeds of actual sales.

If we were to confine suit to the bare actual proceeds received from actual sales, we would exclude those of plaintiffs’ claims that assert that the Government failed (i) to obtain fair market value, or any compensation at all, for some of the timber, and (ii) to follow the regulations in making advance payments to the plaintiffs so that they received payments late (and therefore their gains were unlawfully diminished). There is no reason to think that Congress mandated compensation for a failure to turn over actual proceeds of actual sales but not for these other, intimately related failures. In the light of the fiduciary relationship, that would be extraordinary and without any reason given.

2. 25 U.S.C. §466 (regulations and sustained yield): This statute (first passed in 1934) directs Interior to manage Indian forests "on the principle of sustained yield management.”⁹ Congress considered this necessary to "assure that the Indian forests will be permanently productive and will yield continuous revenue to the tribes.” 78 Cong. Rec. 11730 (1934). Cf. White Mountain Apache Tribe v. Bracker, supra, 448 U.S. at 146. This 1934 Act plainly implemented the timber sales provisions (discussed supra) already in existence since 1910. See 78 Cong. Rec. 11730 (1934). These statutes and the relevant regulations, fairly read together, mandate conpensation for improper Interior activity, contrary to fiduciary obligations imposed by the legislation and regulations, which has led to the direct loss, or diminution in value, of the plaintiffs’ forests or the proper gain from those forests.

Congress wanted not only to protect Indian forests land from a value-loss occasioned by improper Government violation of sustained yield principles but also to compensate the Indian owners¹⁰ for the amount of that unwarranted value-loss if it should be proved. This was Indian property and any remedy there might be through prospective affirmative relief would often be too late for much, if not most, of the injury.¹¹ Interior had been given fiduciary responsibilities for which pecuniary remedies are commonly available in our general law. Without a monetary remedy, the Indians could lose substantial elements of their own property without anything to deter the federal officials (who were directed to manage that property for the benefit of the Indians) from violating the governing directives, and without any compensation for that past loss. Though the 1934 Act did not itself say in express words that the Indian owners were to receive the financial benefits of sustained yield principles, that was its necessary meaning.¹² The property was Indian and Congress put it under the comprehensive fiduciary control of the Government; such direct and continuous management of Indian forest property by federal officials was no more purely "governmental” than management of Indian funds in the hands of the Government — a matter which has long been subject to suit for improper action, once there is a statute comparable to 28 U.S.C. §§ 1491 and 1505. See Part IV, infra.

3. 25 U.S.C. §§318a, 323-325 (roads and rights-of-way): This legislation provides for (a) appropriations for improvement, construction, maintenance, etc. of roads on Indian reservations (to be used under Interior regulations), § 318a and (b) grants of rights-of-way over Indian land with "payment of such compensation as the Secretary of the Interior shall determine to be just” (again under Interior regulations), 25 U.S.C. §325. This legislation, too, clearly mandates compensation to the Indians for failing to obtain just payment for their loss of value because of federal failure to obtain adequate payment from grantees, to restore rights-of-way to original condition, and for improper deduction of the cost of maintaining roads. Of course, a suit may always be maintained to the extent a strict Fifth Amendment taking can be claimed. But Coast Indian Community v. United States, 213 Ct. Cl. 129, 550 F.2d 639 (1977), correctly allowed recovery for the improper grant of a right-of-way although the court could not find a constitutional taking.¹³ The right-of-way statute expressly contemplates "just” pay to the Indian owners, without limiting suit to a Fifth Amendment taking. It cannot be that Congress intended no payment at all for rights-of-way incorrectly granted by Interior without proper authority. Moreover, when read in pari materia with the other forest control statutes (just discussed), these right-of-way provisions authorize compensation for loss of income or property value occasioned by Interior’s unjustified failure or refusal to build or maintain the roads called for by proper harvesting and forest care.

4. Summary: The common thread of the statutes we have just construed as contemplating compensation to the Indians is that they all (a) deal with Indian-owned property, (b) directed to be managed and controlled by federal officials as fiduciaries, (c) in the express interest of and for the benefit of the Indians, and (d) from which Congress clearly wanted the Indians to obtain the financial benefits. In sum, this is a typical Indian trust relationship involving monetary benefits to the beneficiary. In those circumstances it cannot be said that the Congress was merely "regulating” Indian affairs, as it does many other facets of our national life; rather, Congress contemplated that the Indian property owners would receive income from their property while managed by the fiduciary Government, or the appropriate value of the property if it was transferred by the federal managers or if the managing federal officials improperly lost or destroyed it or decreased its value. There is no difficulty in construing these particular pieces of legislation to mandate this kind of compensation (if the facts are proved) even under the strict standards called for by the Supreme Court. Congress itself, and not merely a governmental unit, has envisaged and mandated in these statutes the payment of this type of money.¹⁴

d. We hold, however, that plaintiffs are not entitled to sue for other types of damages or compensation: indirect or consequential business, economic, or personal damages due to the loss (total or partial) of their property, or personal, psychological, or social harm experienced by the Indian owners or the tribe as a consequence of federal mismanagement of their property. These are not clearly included in the legislation plaintiffs invoke; the statutes concern property and its rightful proceeds. The only compensation for which plaintiffs can sue in this court, under the legislation on which they rely, is direct loss or diminution in value of their property (and its proceeds) due to mismanagement by federal officers.

It should be added that the standard by which Interior’s actions are to be judicially tested is, not the court’s or plaintiffs’ own view of the preferable conduct, but the normal standard for government fiduciaries — were their actions in good faith and within the realm of their acceptable discretion, or were they arbitrary, capricious, in abuse of discretion, or contrary to law? We repeat, too, the caution that all the rules governing the relationship between private fiduciaries and their beneficiaries do not necessarily apply in full vigor to Indian claims against the United States. "In each situation, the precise scope of the fiduciary obligation of the United States and any liability for breach of that obligation must be determined in light of the relationships between the Government” and the Indians. Navajo Tribe v. United States, supra, 224 Ct. Cl. at 179, 624 F.2d at 988.¹⁵

IV

This part of our opinion treats the various other non-constitutional, non-contractual claims raised by plaintiffs. Several concern Indian funds in the hands of or controlled by the Federal Government. One contention is that the administrative fee-deductions authorized by Congress from proceeds payable to or for the Indians (25 U.S.C. §§ 406, 407) were excessive or improper in certain respects. There is undoubted consent-to-suit for such claims that the Government illegally kept some of the Indians’ own money or property. See United States v. Testan, supra, 424 U.S. at 400, 401; Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 605-06, 372 F.2d 1002, 1007-08 (1967).¹⁶ The same is true of other illegal withdrawals from funds received from loggers for these Indians, as well as for misapplication of trust funds required by law to be paid to plaintiffs or applied to their benefit.

A somewhat different problem involves interest. Our decision in Cheyenne-Arapaho Tribes of Indians v. United States, 206 Ct. Cl. 340, 512 F.2d 1390 (1975), deals with interest on Indian funds for the period after the August 1946 closing-date of Indian Claims Commission claims. Briefly, tribal trust funds and proceeds of the sale of Indian lands must be held in the Treasury at interest under 25 U.S.C. §§ 161a and 161b (1976), but an alternative under § 162a is deposit in banks; this also applies to the funds held by the United States for individual Indians, 25 U.S.C. § 162a (1976). The bank deposits are subject to rigid statutory precautions to assure complete safety. The holding of Cheyenne-Arapaho is that defendant must as trustee exercise reasonable management zeal to get for the Indians the best rate, the statutory 4% being but a floor, not a ceiling. United States v. Mescalero Apache Tribe, 207 Ct. Cl. 369, 518 F.2d 1309 (1975), cert. denied, 425 U.S. 911 (1976), which defendant says overruled Cheyenne-Arapaho, did not do so; it involved different statutes and periods of time from those with which we were concerned in Cheyenne-Arapaho and are concerned with here.¹⁷

The proceeds actually paid to plaintiffs under the statutes construed in Part III, supra, obviously should include interest which should have been earned or allowed on those underlying proceeds. The payments made to the Indians are enhanced by previous investment proceeds just as they are reduced by administrative expenses properly chargeable. Plaintiffs are not entitled, however, to such interest on any unpaid amounts they may now recover in the present suit under Parts III and IV, supra. Those sums or their equivalent were never held by the Government for plaintiffs, were not subject to the specific interest provisions we have just discussed, and there is no statute awarding back-interest on such unpaid compensation now awarded by the court in this suit. 28 U.S.C. § 2516(a) (1976) allows "interest on a claim against the United States” in a judgment of this court "only under a contract or Act of Congress expressly providing for payment thereof.” There is no more warrant for including back-interest in a judgment on claims for unpaid compensation in this case than in the myriad of other non-constitutional suits (including Indian claims) in which we cannot award interest. See, e.g., United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49 (1951).

Finally, on the non-constitutional claims, we deny entitlement to any recovery under 25 U.S.C. §§ 349, 377 (1976) (and their regulations), which deal with the issuance of fee patents to Indians found by Interior to be competent. Though the underlying land is held in a limited trust (see United States v. Mitchell, supra), this fee-patent legislation suggests little of the assumption of fiduciary responsibility,¹⁸ and does not involve management of property by the Government itself; it is much closer to non-Indian licenses or permits like that involved in Eastport S.S. Corp. v. United States, supra, 178 Ct. Cl. 599, 372 F.2d 1002. The statutes seem almost purely regulatory, invoking Congress’s plenary power over Indians, and do not themselves mandate any compensation to the plaintiffs for such alleged injuries as failing properly to determine whether or not an Indian was competent to obtain an allotment, or for issuing patents to incompetents despite the statute.

V

Defendant does not deny plaintiffs right to pursue constitutional claims for a taking under the Just Compensation clause, and it is beyond question that these can be brought in this court. See, e.g., United States v. Mitchell, supra, 445 U.S. at 540 n.2.

Plaintiffs also, rather weakly, state their claims as founded on express or implied contracts. The powers of attorney from the owners to the Government do not contain any express commitments against mismanagement in exercising the powers. There are also timber sales contracts, but these are between the Indian owners (represented by the defendant’s employees) and the lumber companies, and are not enforceable against the United States in the Court of Claims. See United States v. Algoma Lumber Co., 305 U.S. 415 (1939).

It could be that the contractual obligations plaintiffs invoke are implied at law, but, if so, they are outside our province. If, however, plaintiffs can show any actual contracts to manage properly, by and between themselves and defendant — express or implied in fact — they may amend their petitions to allege such actual agreements, under the monitoring of the Trial Division according to our rules. Such new allegations should be at least specific enough to call for a trial on the existence of the contracts, or to be capable of being backed up by documentary or affidavit support on a motion for summary judgment.

VI

On the issues of excessive charges against payments collected for timber sales and failure to earn sufficient interest on Indian funds in. Government hands, defendant now says that Helen Kirschling, formerly Helen Mitchell, has exhausted her administrative remedies but the other plaintiffs (close to 1500 in number) have not. This contention comes too late. Mrs. Kirschling’s administrative appeal was filed long after suit was brought in January 1971, and related only to excessive charges, not interest. The Board of Indian Appeals regarded the issue to be discretionary and referred the matter to the Assistant Secretary, who denied the appeal in the exercise of his discretionary authority. Defendant’s original motion to dismiss did not address this exhaustion issue, nor did we in our earlier ruling. We conclude that no administrative appeal relating to these questions was prescribed as mandatory, and in any event defendant waived it by not earlier advancing the defense. Even if, however, exhaustion was a definite prerequisite to suit, one test appeal must be regarded as enough in these circumstances. The adverse secretarial decision in no way turned on any feature of Mrs. Kirschling’s case which was not equally present in all the others. It would be a useless formality to require each of the multitude of claimants to go needlessly through the same course. The exhaustion doctrine was not devised in order to multiply futile paperwork only to achieve a preordained result.

Conclusion

Defendant’s motion to dismiss is denied exceptas indicated in this opinion. These cases are returned to the Trial Division for further proceedings in accordance with this opinion.

1 The Court held, 445 U.S. at 546, that, on the basis of its objectives and its legislative history and background, the General Allotment Act "cannot be read as establishing that the United States has a fiduciary responsibility for management of allotted forest lands.” See also 445 U.S. at 542, for the same conclusion.

2 The recent Civil Service Reform Act of 1978 does provide specifically for judicial review in this court but obviously that late enactment does not invalidate, or cast doubt on, the hundreds of military and civilian "pay” cases which this court has heard and decided in the preceding decades.

3 We shall often use "statutes” as exemplifying and standing for comparable regulations or orders.

4 In refusing to accord us jurisdiction beyond that historically recognized in this court, the Supreme Court may be said sometimes to have rested almost exclusively on the absence of an express Congressional statute waiving sovereign immunity. United States v. King, 395 U.S. 1, 4-5 (1969) (lack of declaratory judgment power); Soriano o. United States, 352 U.S. 270, 276 (1957) (non-tolling of limitations beyond statutory provisions). But this extremely strict requirement of an express statute, if it be a true sine qua non at all, has not, we think, been extended to a substantive claim within the Tucker Act — e.g. a monetary claim founded on an Act of Congress. Cf. United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32 (1915).

5 The remaining statutes are discussed in Part IV, infra; the constitutional and contractual claims are touched on in Part V, infra; exhaustion of administrative remedies is considered in Part VI, infra.

6 The Anderson court said that 25 U.S.C. § 466, supra, with its broad-scale direction to the Secretary to make rules and regulations (under prescribed standards) for the operation and management of Indian forestry units, involved an undertaking by the Government to manage the land resources of the Indians for the Indians’ "optimum economic benefit.”

7 Again we by-pass (see our prior Mitchell opinion, 219 Ct. Cl. at 99, 591 F.2d at 1301-02) the phrase in 28 U.S.C. § 1491 giving this court jurisdiction over claims against the United States for "liquidated or unliquidated damages in cases not sounding in tort.” Plaintiffs do not rely on that clause which has never been fully and authoritatively construed but rather on specific legislation as founding their claims.

8 25 U.S.C. §§ 318a, 323-325, 406-407, 466. See text at note 5, supra.

9 25 U.S.C. § 407, relating to the sale of timber on unallotted lands, also provides that the timber "may be sold in accordance with the principles of sustained yield

10 In 1934, when this statute was passed, the only Indian owners who could sue were individuals, but 28 U.S.C. § 1505 gave that opportunity to Indian tribes in 1946.

11 In 1934, even the opportunity for seeking affirmative relief against federal officials was problematic. There was no general consent-to-suit comparable to 5 U.S.C. § 702 (1976), and the defense of sovereign immunity was often raised in litigation seeking injunctive or mandatory relief involving property of which the Government held bare legal title. E.g. Naganab v. Hitchcock, 202 U.S. 473, 475-76 (1906).

12 It is very hard to believe that Congress, for example, would exclude Indians whose forests were wholly or largely wasted, because of federal officials’ gross failures to follow the principles of sustained yield, from recovering compensation for that loss. There is no administrative channel for obtaining compensation, and prospective judicial relief by way of injunction or declaratory relief (to the extent it existed at all, see note 11, supra) would not avail for damage already done. An eminent domain suit for just compensation would probably be barred because of lack of Congressional authority to take the property by negligent or intentional waste. See note 13, infra. In Menominee Tribe of Indians v. United States, 117 Ct. Cl. 442, 91 F. Supp. 917 (1950), this court expressly held that violation of an earlier specific statute directing the equivalent of sustained yield for the Menominees rendered the United States liable for violation of that principle, even assuming that the later special act under which that suit was brought did not create liability but merely gave jurisdiction to this court. 117 Ct. Cl. at 499-501. In the present case, that jurisdiction is conferred by 28 U.S.C. §§ 1491, 1505.

13 In Coast Indian Community, the alleged taking was done without the necessary legislative authority (the federal officials failed to follow the specific requirements Congress laid down) and accordingly a Fifth Amendment taking could not be found. That would appear to be a not uncommon happening.

14 In enacting 28 U.S.C. § 1505 in 1946 (first passed as section 24 of the Indian Claims Commission Act of 1946, ch. 959, § 24, 60 Stat. 1055) Congress seems to us to have affirmatively expected that post-1946 monetary legal claims for governmental breach of trust under past and future federal statutes would be brought by Indians in this court. Congressman Jackson, committee chairman and principal sponsor of the bill in the House of Representatives, said: "The Interior Department itself has suggested that it ought not to be in a position where its employees can mishandle funds and lands of a national trusteeship without complete accountability” and "let us see that the Indians have their fair day in court so that they can call the various Government agencies to account on the obligations that the Federal Government assumed.” 92 Cong. Rec. 5312 (1946). See also, H.R. Rep. No. 1466, 79th Cong., 2d Sess., reprinted in [1946] U.S. Code & Cong. Serv. 1347, 1351 (referring to the proposed act as opening this court to Indian cases where "fiduciary duties have been violated” and to the "victims of their maladministration”). Section 1505 did not itself create the underlying substantive right to monetary compensation, and may not have, by itself, waived sovereign immunity for suits under the legislation involved here, but it is noteworthy that the 1946 Congress which molded the § 1505 provision for suit in the Court of Claims apparently expected that violations of fiduciary duty could be redressed in an action here for monetary compensation.

15 We intimate, of course, nothing on the merits of the claims under the proper standard. On the present motion, plaintiffs are entitled to the chance to prove their case. Whether they will do so or not, we do not know.

16 We pointed out the same principle in an unreversed part of our first Mitchell opinion, supra, 219 Ct. Cl. at 104, n. 19, 591 F.2d at 1305, n.19.

17 The controlling standards for determining breaches of the fiduciary obligations considered in this Part IV, are, of course, the same as the standards for federal fiduciaries discussed in Part III, D, supra. This is likewise true of the limits on recoverable compensation.

18 The purposes of the special trust provision of the General Allotment Act, as discussed by the Supreme Court in Mitchell, supra, 445 U.S. at 542-545, did not include a true fiduciary or guardianship relationship toward the Indian-owners.