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Artic Wolf. Courtesy of USGS.

NRS | Native Americans | Current Work of NRS Involving Indian Law Litigation

The 1970's

In 1978, the Court of Claims etched in stone the "continuing wrongs" doctrine; it defined a "continuing wrong" as "a wrongful course of governmental conduct [which] began before August 13, 1946 and continued thereafter." Navajo Tribe of Indians v. United States, 218 Ct. Cl. 11, 20, 586 F.2d 192 (1978), cert. denied, 441 U.S. 944 (1979). This meant that, where the Indian Claims Commission found a "continuing wrong" to exist, the Commission was empowered to award damages for all or part of the post-August 13, 1946 period, depending on the duration of the particular continuing wrong, thereby enabling a vast expansion of what the government had considered was the Commission’s legitimate jurisdiction.

In 1979, the Court of Claims ruled that the Menominee Tribe's breach of trust suit, premised on the notion that the statute terminating the Tribe's trust relationship with the federal government was itself a breach of trust, was beyond the scope of the Court's Indian Tucker Act and Tucker Act jurisdiction. See Menominee Tribe of Indians of Wisconsin v. United States, 221 Ct. Cl. 506, 514-20, 607 F.2d 1335, 1340-44 (1979). The opinion compared the scope of the jurisdiction afforded the Court under 28 U.S.C. §1491 and 28 U.S.C. §1505 with the vastly more expansive jurisdiction under the ICCA. The comparison can only be appreciated if Menominee is contrasted with Seminole Nation of Oklahoma v. United States, 203 Ct. Cl. 637, 652-54, 492 F. 2d 811, 820-21 (1974), which held that the part of a federal statute providing for the reversion of abandoned railroad station grounds located upon tribal land to the adjoining municipality, without compensation to the Tribe, amounted to a breach of the "fair and honorable dealings" clause. Id.

The Mitchell Decisions

In 1980, the United States Supreme Court ruled upon the question of whether the Court of Claims had jurisdiction over a suit for alleged mismanagement of allotted timberlands held in trust and located on the Quinault Indian Reservation in the southwestern part of Washington State. United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”) held that the provisions of the General Allotment Act of 1887 could not be fairly read as mandating compensation for the claim the government had failed to properly manage the plaintiff-allottees’ timberlands and hence the Court of Claims lacked jurisdiction over this suit.

In 1983, the Supreme Court issued its “Mitchell II” opinion. United States v. Mitchell, 463 U.S. 206 (1983). The Court dealt with the question of whether the Court of Claims had jurisdiction over the Quinault allottees' timber mismanagement claims under statutes other than the General Allotment Act. The Court held that the 1910 timber sales statute, the BIA's 1911 and 1918 regulations implementing the 1910 Act, and Section 6 of the Indian Reorganization Act requiring sustained yield management of Indian timber, could be "fairly interpreted as mandating compensation" in the event the duties contained in these statutes and regulations were breached by the government. Mitchell I and Mitchell II issues arose fairly often in the United States Claims Court during the ensuing seven years.

The 2000's – Mitchell Revisited

One of the most significant years in General Litigation's conduct of Indian claims litigation was 2003. In 2003, the Supreme Court revisited its Mitchell I and Mitchell II decisions of 23 and 20 years before, respectively, by means of simultaneously issued opinions.

In one case, the White Mountain Apache Tribe had sued for the award of money damages for the government's breach of the alleged trust duty to maintain and preserve certain historical buildings located on land originally part of the Fort Apache Military Reserve. The land had been put in trust for the Tribe by a 1960 statute which also authorized the BIA to utilize this trust property for school and administrative purposes for as long as it deemed it necessary. United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003). The trial court had granted the government's motion to dismiss for lack of subject matter jurisdiction; the government successfully argued that since the 1960 statute made no mention of any duty to maintain and preserve these buildings, the alleged trust duty could not be money-mandating under the standards set by the Mitchell II decision. The Tribe succeeded in persuading the Federal Circuit to reverse the trial court's dismissal; the United States was granted certiorari.

The Supreme Court held:

While it is true that the 1960 Act does not, like the statutes cited in that case [Mitchell II], expressly subject the Government to duties of management and conservation, the fact that the property occupied by the United States is expressly subject to a trust supports a fair inference that an obligation to preserve the property improvements was incumbent on the United States as trustee. This is so because elementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch. 'One of the fundamental common-law duties of a trustee is to preserve and maintain trust assets.' (Citations omitted).

537 U.S. at 475. In addition, the opinion stressed that the degree of control which the government exercised over the trust property it was using for its own purposes was "at least as plenary as its authority over the timber in Mitchell II." Id.

The second case involved the claim that in approving amendments to a particular tribal coal lease with Peabody Coal Company, the Secretary had breached his alleged trust duty to demand a royalty rate higher than the customary royalty rate of 12.5% proposed by the lessee. United States v. Navajo Nation, 537 U.S. 488 (2006). The Court held that neither the Indian Mineral Leasing Act of 1938, Act of June 24, 1938, 52 Stat. 347, codified at 25 U.S.C. § 396a, et seq., nor the implementing regulations contained "a specific statutory or regulatory provision that can fairly be interpreted as mandating money damages" for the breach of the alleged trust duty to "ensure a higher rate of return" for the Tribe. Id. at 509-514. The Court specifically found that this case resembled the situation in Mitchell I, as opposed to Mitchell II.

In 2007, the Federal Circuit ruled in Navajo Nation (the same case which was the subject of the Supreme Court's 2003 opinion) that it could be fairly inferred from "a network of statutes and regulations" (actually a disparate collection of various statutes and regulations some of which do not deal with management of tribal trust assets) that the claim that the Secretary committed a breach of trust by not ensuring a higher rate of return under the coal lease at issue was money-mandating. Navajo Nation v. United States, 501 F.3d 1527 (Fed Cir. 2007). The Court’s analysis relied heavily on the 2003 White Mountain Apache opinion.

The Supreme Court reversed the Federal Circuit in United States v. Navajo Nation, 129 S. Ct. 1547 (2009). It held that the finding of a money-mandating duty may not be premised on the government's comprehensive control over the particular Indian trust property alone. Instead, a specific duty or rights-creating statute or regulation must be identified in order for there to be a money-mandating claim. Unless such a statute or regulation is identified by an Indian plaintiff suing under 28 U.S.C. §1491(a) or § 1505 (one had not been identified by the Navajo Nation), "neither the Government's 'control' over [the trust property] or common law trust principles matter." In short, the Court greatly narrowed the reach of its opinion in United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003).


Updated May 12, 2015

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