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, Cov~::o Indian COlnmunit~ta1. v. James Wlla, et al., No. 82-~377

PCI' Curiam:

Section 2 of Pub. L. No. 96-217, 94 Stat. 126 (980) (to be codified at 28

U.S.C. § 2415) (Section 2)1 ,cquircd the Secretary 01 the Interior, alt er consultation

wi th the Attorney General, to submit to Congress by June 30, 1981, legislative

proposals to resolve certain Indian claims that the Secretary and the Attorney

General believed were not appropriate to resolve by litigation. The Indian claims

nrc potential actions lor money damages against third parties that arose prior to

1966. The United States could litigate these claims in its capacity as trustee for-,

Indians whose lands the governm ent holds in trust or restricted status. The district

court directed appellants, James Watt, et al., to submit the legislative proposals

required by Section 2 by December 15, 1982; to institute protective litigation if

appellants could not submit the necessary legislative proposals by that datc; and to

notify members of the plaintiff-class about the current status of their claims and

the forthcoming statutory deadline of December 31, 1982, for instituting litigation.

Secre tary Watt asks us to vacate the district court's order, arguing that: (l)

Appellees, Covelo Indian Community, et al. ("Indians"), lack standing to pursue

lSection 2 provides:

Not later than June ~W, 1981, the Secretary of t lieInt cr ior , niter consultation will) the Attorney General, shallsubmit to the Congr-ess legislo.tivc proposals to resolve thoseIndian claims subject to the amendments made by the firstsection of this Act that the Secretary of the Interior a'ild theAttorney General believes are not appropr iu te to resolve byli t igat ion.

-2-

[heir claims because they have asserted no injury that is likely to be redressed by

the court order; (2) Section 2 does not impose an enforceable duty on the

government to submit legislative proposals; and (3) Appellants have, in any case,

submitted D report to Congress explaining why corr ec t ive legislation is

unwan-ant ed 1'01' the Indian claims; to require the Secretary to do more would

infringe sepal" (\tion-or-powers prj nci pl es.

We reject appellants' arguments and af fir m the district court's order that

(1) Secretary Wiltt must submit to Congress legislative proposals to resolve

presumptively valid Indian claims that are not appropriate for litigation; and (2) if

unable to do so by December 31, must file protective litigation and make all

r easonable efforts to notify Indian claimants of t he status of their claims before

the December 31, 1:.J82, deadline. We modify the injunction, however, to allow

appellants until December 31, 1982, to submit the required legislative proposals,

since it is highly unlikely that Congress could consider them before 1983.2

1. 13acl<ground

Prior to l%G no general statute of limitations apprieo to the United

States, as plaintiff, seeking money damages on contract and tort claims, although

time l i mitat ions did exist for private parties suing the United States. In HJG6,

2Given the short time r-emaining between the date of our opimon andDecember 31, l~82, we deem it sufIic i ent if the government submits proposals inoutline form by that dat e, Appellants must, how cver , submit provisions andcxplana t icns to U1e !J8th Congress b~' ,1nnunry 31, I~J3:L We also note that we haveslightly modified the district court's order that appellants "shal l notify members ofthe pluint ifIvcluss , individual or tribal where appropr iatc, 8S to the current statusof their cln ims and .the nature of the tor thcominj; statutory deadline of December31,1982, for U1e institution of li t ign tion." Covelo v. \\'l1tt, No , 82-"2725, ·mem. op.at 42-43 (D.D.C. Nov. 17, 1982) [her einaf tcr cited as District Court Opini onl .Because it may be infeasible for the Dcpnr t rnent to give this notice belor eDecember 31, we change the order to require appcl lant s to make all reasonablecffor ts to notify the plaintiH-class.

-]-

Congress corrected this apparent inequity by enacting 28 U.S.C. ~ 2415, which

imposes a six-year time limit on contr-act fictions by the federal government, and 8.

three-year limitations period for most of the government's tort claims. The

statute provided that claims arising prior to HJ6G accrued on the date of the

statute's enactment, July 18, 1966. Id. § 2415(g). It did not spccif ically advert to

claims brought by the Uni tcdSt at es , as trustee, on behalf or the Indians.

In late 1971, the Department of the Interior and many Indians became

concerned that § 2415 migtit bar recovery or damages 011 pre-1966 claims that could

be pursued by the United States 011 behalf of Indians whose lands the government

held in trust or restricted status. The Department and various Indian groups urged

Congress to extend the statute orIi mita trons so that the government would have

time to identify, evaluate, and, where appropriate, file Iawsuits to assert those

claims. 3 As a result of this testimony, Congress extended the statute of

Iimit ations for pre-I9GG claims brought by the United States on behalf or the

Indians to July 17, 1977. 4

In 1977 Congress agnin extended the statute of l i mitat ions, this time until

April 1, 1980. 5 The Dcpar un cnt of the Interior again supported the extension,

stating that many Indians and tribes had only recently bccome aware of possible

remedies for past damages, and that hundreds of newly identified cla ims could not

be researched, identified, and riled by the deadline and would, as a result, be lost

to the Indians involved. G

3See Let tel' from Hurr ison Loesch, Assistant Secretary of Interior, toSenator HeJll'y Jackson, Chair man of the Committee on Interior and Insular AfIairs(June2G, 1972), reprinted in S. Rep, No. 1253, 82d Cong., 2d Sess. 4-S-(l972~.

4Act or October l~~, 1~72, Pub. L. No. 92-485, 8G Stat. 80:.5 (codified at 28U .S.C. § 2415).

5Act or August 15,1977, Pub. L. No. 9~-J03, Dl Stat. 842.

GS ee Letter from Leo Kr uli tz , J).:::partrnent of Interior Solicitor, to Rep.Peter Rodino, ,Jr., Chairman, House Committee on t he Judiciary (i\lay 18, 197'1),rO;")J'!nt-:>d in Il.1L j(0[). No. :17:i. ~l:ith C0f)n..., 7.(\ Soss. G (1~:'l7).

i' ;.

-4-

Congress extended the statute of limitations yet agnin in 1980, this time

until December 31, 1982. Act of l\larch 27, 1980, Pub. L. No. 96-217, 94 Stat. 126.

Congress also added a new section to the Act. Section 2 of this Act required the

Secretc.ry of the Interior, after consultation with the Attorney General, to submit

legislative proposals to Congress by June :30, 1981, for cl airns inappropriate for.,resolution by litigation.

As the district court found, the Bureau of Indian Affairs (BrA) and the

Secretary of the Interior have attempted throughout the past decade to identify

and resolve mcritorious Indian complaints subject to the statute, in consultation

with Indian tribes, attorneys and other affected groups and organizations. As a

result of these efforts, the Department of the Interior has identified approximately

17,000 pre-l%6 Indian claims, including claims for trespass, harmful use of Indian

property, breach of contract, and wrongful transfer or alienation of indian

property. The claims are against states, counties, local govcrnments, ano private

individuals. The majority of the claims fall into four categories: old age

-5-

assis tance.? f'orccd fcc patcnts,8 secretarial transfcrs,9 and unapproved rights of

wny)O The BIA has not categorized other claims, such IlS those dealing with water

rights trespass, fishing rights, grazing l'ig-hts trespass, and mineral rights trespass.

7These claims involve actions against stn t es for funds that the 131/\erroneously paid out or Indians' estates to reimburse the states for old ng2assistance payments. Cervain Indians ]1!ld been tile bcnetici ar-ies of IndividualIndian Money Accounts held in t.rust by the United States and administered by theJ3lA. The 131A had routinely reimbursed the individual states for old age assistancepayments in the course or probating the Indians: estates. In 1962, the court inRunning Horse v. Udall, 211 F. Supp. 506 (D.lJ.C. 1%2), ruled that where the moneyin the Individual Indian ;\]on8V Accounts was income derived Irorn Indian trustlands, these rci mbursc.n ents encumber-co trust property in violation or 25 U.S.C.§ 3Li9, which provides that trust land allotted to the Indians "shall not be liable tothe sat isf'ac tion of Dny debt contracted prior to the issuance or la [eel pat ent ."The identified old age assistance claims total approximately I,G50. District CourtOpinion at 15.

8Porced fee patent claims refer to attempts to revoke fe e patentserroneously issued by tile Sccret ary or t he Interior for lands that the United Stateshad previously held in trust 1"01' the Indians. Congress has in the past 8110t tedcertain lands to individual Indians in trust, The United States holds these lends fortile use and benefit of the allot tee. Sec 25 U.S.C. § 331 e t seq. ",hile these landsare in trust status they nrc exempt fronl sta te liel valorem UIXe'S and are subject tovar-ious restrictions. In 190G, Congress providc',Ttlh1t-thc: Secretary of the Interiorcould issue f ce simple patents to an Indian before t he trust period expired if theSecretary were satisfied thnt tnc allot tee was competent and capable of manug inghis afIair-s. 25 U.S.C. § 349. The issuance or n lee simple patent removed allrcst iictions, including immunity from taxation. The Secretary established compe­tence commissions and issued some fcc simple patents. Subsequent court decisionsint crpret ing the 1906 Act held that it required allottee consent befor c theSecretary could issue J. fcc patent. Sec, ('.r~., Choate v. Trapp, 221 U.S. GuS (191'2).Congress then passed a series of statutcsGlOwn as the "Cancellation Acts," whichwcr e desig nco to rem coy the wrongs caused by the prior practice or issuing feepatents without application or consent. The Cancellation Acts authorized theSccr e tary to revoke f cc patents where the original nllottee has not voluntarily soldor mor tgngcd the allotments. 25 U.S.C. ~S 35211, 352b. When the Secretaryrevokes the fcc pat ent, nne] the land is occupied by £1 party who does not have goodtitle because the allotment was transferred or mortCD[;cd involuntarily, the heirs ofthe or-iginal allottee car: recover cqui t abl e title plus (~i1fT]ages for trespass. Becausethese claims may produce money damages, the 13L\ IJ1Llde them pur t of its Statuteof Limitations Claims Prograrn. There are about 2,000 ident i'ii ed forced fccclaims. District Court Opinion at 16.

911Secrct£1rial trnnsf ers" involve land where THA off icials appr ovcd sales ofinherited allotments on reservations without the consent of all beneficial heirs asnllegeclly required by ~S U.S.C. § 483.

IOUn(lpproved rights of way nrc rand and utility line rights of wny thatwere grAnted 01\ tribal and nllottcd lands without cttcc tivc Indian or Secretarialapproval. Tile 13IA assis tcd in the l~I.·llnting 01 so me unuppr ovco rights or way.

, ..\ .,..

-6-

The Depar t ments of Interior and Justice have rejected almost all these

claims as inuppropr iat e for litigation. The Dcpar tm ent of the Interior has

submitted two legislative proposals dealing with a small subset of the claims

identified by the BlA, but has rejected most of U18 r-emaining claims as candidates

for legislative r csolution.U

TI1c Secretary of the Interior has submitted a legislative proposal designed

to resolve old age assistance claims valued at over ~50.0U. Letter from Deputy

Assistant Sccr etary of the Interior Roy SD rnpscl to House Speaker Thomas 01N eil l

(Oct. 21,1982) (reprinted ~ Appellant's Brief, Addendum 4-6 (Sampsel letter». The

Secretary of the Interior has also submitted a legislative pr-oposal covering

Shoalwater Bay forced fee claims- See Letter from Assistant Secretary or the

Interior Kenneth Smith to Vice President lieorge Bush (Dec. G, 1982), filed in this

court December 7,1982. The Secretary of the Interior has thus partially complied,

albeit belatedly, with Section 2. As to most other identified claims, the Sampsel

letter simply states that the Department has determined that it is inappropriate to

litigate the remainder of the claims, and that it also will not submit legislative

proposals 1'01' them.

llSe.s: Letter of October 21, 1982, from HoySecrct ary of the Interior Deportment, to HouseAppellants! Grief, Addendum at 4-G (Sampsel letter).whet her appcll an ts have dec] ined both to Ii ti GEl t eproposals [or tile uncn t egor iz.cd claims.

Sn rnpscl, Dcpu ty AssistantSre:nl(cr Thomas O'Neill,

'\\" e do not kIlOW for surenlld to submit lq~isJative

• t .,

-7-

The Indians filed suit in federal district court on September 23, 1982,

seeking dcclare tory and mandatory injunctive relief, alleging that the Department

of the Interior, by its inaction, had violated Section 2's mandate to submit

legislative proposals for claims that it chooses not to litigate. On November 17,

1982, the district court ordered appellants to submit legislative proposals by

December 15, 1382, to insti1.\.ltc protective litigntion if they could not so comply,

and to notify the plaintiff-class about both the current s ta tus of the clai ms and the-

nature of the December 31, 19S2,deadline for riling crairns. This expedited appeal

followed)2

II. Analysis

The government has three major objections to the district court's opinion

and order: 0) that Section 2 does not impose an enforceable duty on the

government to submit legislative proposals for those claims the government does

not intend to litigate; (2) that in any event the Sccrct ary of the Interior complied

with Section 2 by submi tting a report to Congress explaining why corrective

legislation is unwarranted and to require the Secretary to do more would violate

separation-of-powers principles; and (3) that the Indians lack standing. We deal

with and reject each of these objections below)3

12The district court's opinion is ambiguous about whether the Departmenthas satisfied its duty under Scction 2 to litif;-!lte or propose legislation on the oldage assist ancc claims. See Dis tric t Court Opinion at :J9--tjU. The Indians C1'05S­

appealed all this point,cTilirninG that t he ))epnrtmelll must submit legislativeproposals to deal with all valid claims, including those involving less than $50.00.We do not foreclose tllegovcrnment from eSlllblislJing, lind explaining Why it hasestablished, some cJe ml.!-lill1is st andaro for resolving claims through Icg isla tion. Bulthe Sampsel letter does not explain why S50.00 is an appr opr ia te amount, nor doesit consider the possibility of group resolution of claims, perhaps in a manner akin toclass action litigation. We therefore conclude that the Department has notadequately addressed old age assis tancc claims involving less than $50.00.

13\\'e adopt the reasoning of the dis uic t court opiruon with r cspe c t to thegovernment's chall cngc to the certification 01 the pl a i n t i If class, sec DistrictCourt Opinion at 23-27. As for appellants' lirgurnent t hat this action is barred b:-,'the doctrine 01 laches, we rind that given t he recent nature of the government'sdecisions about whether it would li t ig a te 01' submit lc;;islntive proposals Oil tile1 ", ~ i :", , . 1, •• -, ,~ ~ 1_ 1: I • - "

· ,

,"-8-

A. The ;";andate of Section 2

1. I_he Purpose 0f__the Section

Section 2 of Pub. L. No. 96-217 s ta t cs:

Not Intel' than June 30, Him, the Secretory of theInterior, af ter consultation with the Attorney General, shallsubmit to the Congr ess legislative proposals to resolve thoseIndian claims subject to the amendments made by the firstsection of this Act that the Secretary or the lnt cr ior and theAttorney General lolelieves are not appropriate to resolve bylitigation.

On its face, Section 2 requires the Secretary of the Interior either to litigate, or to'.:

submit to Congress 1egisla tive proposals designed to resolve identili ed and

meritorious claims that arc subject to the December 31, 1982, statute of

lirnitations.I 4

The legislative history of the section supports this "plain meaning" view of

the section's directive. The JIouse hearing, the committee reports, and the joint

statement of the Conference Cornrnit tce [[11 indicate that Congress had very

specific purposes in mind when it crcat co Section 2.

HOur int erpr c tat ion of Section 2 is bolstered by a canon of constructionin Indian Jnw known as "the doctrine of liberal constr uction." Se~ F. Cohen,Handbook of Pcderal Indian Law 221-25 00(7). This doctrine provides for both abroad C-OI1S CI'llctTon-o[sCr-;rll t esond ot 11121' 1ega] docu TTl en ts alfec ting the r eser va tionor es tablislun cnt of Indian rights, and n nur row construction of statutes, treaties,etc. nbl'og~lting or IilllitillG such riGhts. It is rooted in the special Gual'dianrelationship between the Uui t e d Stutes and the var ious Indian tribes. Sec., c'fi.:,Santa Cl arn Pueblo v. ~lnrtil1e:,--:" 136 U.S. 49 (978); Bryan v. Itasca County, ·126U.S. 373 (1976). See also Comment, Indian Fishint; HilTlJts Hcturn to SDflwn:Tow ard En vi ron In en GTp-;:O((~C ti on of 'll'e-(ltv-V;sT1c;Tc~, GT--Or. L. Hev. 93, i (J 9=1.1(1982). -Tj\lTsCCDnTC(~(T~':;lulCSv. i\T1tc::I1Ci~1450-:-S. 5:35(1980).

-9-

First of. all, Congress want ed the Department of the Interior to submit

legislative proposals so that Congress might more effectively car ry out its duties

as trustee to the Indians. The report of the House Judiciary Committee on Pub. L.

No. 9G-2l7 details at great length the "fiduciary obligation on the part of the

United States to protect Indian property rights" by bringing actions on their behalf.

H.n.. Rep. No. 807, 9Gth Gong., 2d Scss. 4 OCJ80). The report recited the view of

witnesses that "it is the fault of the United States that all of the claims have not

been processed to date, and not the fault of the Indian tribes ..• land] if the

statute is not extended, those Indians whose claims would be barred by the statute

may have a cause of action against the United States for a breach of its fiduciary

duty as trustee for the Indians." Id. at 4)5-,

We find it significant that the Dcpar tm ent of the Interior both understood

and agreed to carry out its own fiduciary responsibility to pursue the Indian claims.

The Department of the Interior assured Congress that the Department could

identify all of the remaining claims and refer most of them to the Department of

Justice by the end of the extension period. This extension would also serve, the

Department stated, to give it time to negotiate other claims "to prevent the filing

of massive lLlwsuits. .. and ... avoid our possible liability for breach of our

liduciary responsibilities to tile Indians involved." StDtute 01' Limitations for

15Congresst prior extensions of the statute of limitations for Indian claimswere for sirn ilar reasons. Congress wanted to afford Indian claimants H fail' andcqui t able se t tl cnicnt of their prc-l9GG claims and \'WS also concerned with possiblegovernment l iabi lit v l'or breach or its fiduci ar y duty it it did not resolve the claimsprior to the expiration of the statute of limitations, sec, c.g ., 123 C~ong. Hec.17498(1977) (remarks of Senator Cohen). It granted each -;\'tension to afford the

. Secr et ary of the Interior und the Department of Justice sufficient time to identify,rescur ch, and cvaluat c every possible claim. Sec, e'2' S. Rep. No. 125:3, ~12d Cong.,2d Scss. 4 (972).

, .

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Y~2,-!:~}n Claims by the United States on Behalf of Indians: Heuring before the

Subcomm. on Administrative Law and Governmental HelHtions or the Bouse Comm.,

on the Judiciary, 96th Cong., 2d Sess. 6 (1980).

The Depar trncnt's officials in particular recognized their responsibility to

propose legislative solutions where litigation was inappropriate. One official

explained: .,We believe, in view of the serious nature of this si t uat ion, thatwe must negotiate Iair and honorable compromises forpresentation to the Congress and t hat , in the absence of such'compromises, we must be prepared to rccomm cno appropriatclegislative solutions. '

B.n. Rep. No. 807, 96th Cong., 2d Sess. at 9 (let ter from Hick Lavis, Acting

Assistant Secretary to Congressm-an George Danielson, Chairman, Subcommittee-,

on Administrative law and Governmental Helations, Committee on the Jydiciary

(February 27, 1980».

During the debate on the extension bill, a number of Congressmen

reaffirmed the government's fiduciary obligation to press these claims for the

Indians, and Congress! expectation that all valid claims would be dealt with during

the extension period. As Hepresentative Danielson, the manager of the bill in the

House, declared, "unless a r e asonnble length of time is given so that these claims

can be evaluated, can be settled, can be turned over to the Department of Justice

for prosecution, where necessary, it is going to be absolutely necessary that

blanket lawsuits be filed in the next week or ten days to prevent these claims from

running." 126 Cong, Hee. Hl9:13 (daily cd, March 18, 1980»)6 It appears,

IGSee also, e.(.1~., 126 Cong , Re c , H194::i (daily cd. Feb. 28, 1'980) (statementof H.ep. DailJelson) rt!1e U.S. Government has in those treaties under taken toprotect the Indians in their rii~hts under the various treaties. Thercf'or c, they aresimply disehat'ging n I'iduc iary obligation"), id. n t 1l]~143 (statement of illr.Moor head) ("it the dcndline is not extended, suits may Iy~ filed agllinst the UnitedStates in its capaci t y E1S trustee [or failure to diliGently pursue these claims"); id.a t lIl:J44 (statement of Rep. Young) ("tllis leGi::;L1tion I1p~)cai's to me to raise a basicquestion, and that is, will Congress insure tllet the U.S. C;()\'Ci'nment will be able tofully and fairly perform its legl11 responsibilities HS trustee for Native Arn er i cans?I believe t ha t the answer to that question must be yes").

.~ • • .__~~.........."""",_.,,~~"".,"""''"''''~~ ..m.'''"_·''''· .. , ._·.....~..·~,__"""·'"'''''..""",.'".''o~"h'.,..r¥/~~/'t''''''''''~·y;;-''itiSYf'·~'''''-":,;r;~'R"".\,,\'.;"'\:;';>n,."\':k~:Jz::":"~~~

l

-11-

ther cfor e, that when Congress set out a legislative; alternative in Sect ion 2, it did

so with the expectation that the Secretary at the Interior would use the legislative

option to resolve once and for all the govcrrunent's duty to press all valid

unlitigatedlegal claims by the end of the limitations period.

The legislative history of Pub. L. No. 9G-217 also indicates that Congress

was well .aware that the Department 01' the Interior considered certain types of

claims-such as forced fce and secretarial transfcrs-vto be possibly inappropriate

for litigation. Congress wanted the opportunity to consider legislative approaches

for resolving these types of claims before the statute expircd.l? The House

Committee on the Judiciary stated:

lSection 2J requires .the Attorney General of the UnitedStates after consultation with the Secreto.ry or the Interior, tosubmit to the Congress legislative al tcrnat ives to resolvethose Indian claims SUbject to the statute or limitations that,the AtLorney General believes are not appr opr iut e to resolvethrough litigation. This report is due no Inter than December31, 1980 so as to afford Congress sufficient time bcfor c theexpirn t ion date or section 2,j15, as amended, to consider thesealternatives....

from the congressional testimony of the witnessesrepresenting the Department of Justice and the Department ofthe Interior, it appears that sornc of the Indian claims andpotential Indian claims may be ones that are not appropr iat eto resolve through litigation. The purpose of the AttorneyGcncr al's report is to identify alternative legislative proposalsthat Congress m ay want to consider to resolve these claims ina manner that is lair to all the par tins concerned.

17Congl'css WitS 11\\'I1l'e of the occasional pract icc of resolving claimslcgislntivcly and approved or this method or resolution. Sec St atut c of Limitationsfor Certain Cl ai rns bv 1I1e Uni t cd Stntcs on ])chrllf of JncJi2n~TJe[\rins':r3clOi:C~heS1Ibco n1ll-;-:-OJ1--Xci III i n rs-,:rfl tT\'cCfl-\~--;\11ell;0vcrr;-;rl-(, ;1t:-;]-1{cETIol1::;()f"TIlCTiOl! ~;~ Con1Tn:"Ol1tTie 0~~dTCTitr;!~~)G-tTll:-o;1~.~-~d-S·css. ~G-(I~J(CIT('~-l-utCijlcnTor}{c~~~daiD-(SI)(~nkTng

approvingly of se t t lcmcnt and legislative resolution or Indian claims in Arizona).

"

-12-

},LIL Rep. No. 807, 96th Cong., 2d Sess. 5 (980»)8 See ~so S. Rep. No. 569, 96th

Cong'., 2d Sess, 3 (980). The Joint Explanatory Statement of the Conference

Committee, H.R. Rep. No. 843, 96th Cong., 2d Scss. 4 (980), underscores Congress'

ultimate decision to resolve known meritorious Indian claims by a certain date,

either through litigation or legislation:

The languago. of the House amendment requires a reportto be submittcd to the Congress by the Secretary or thelnterior, after consultation with the At torncy General, by June30, 1981, which details legislative proposals to resolve thoseIndian claims that they feel are not appropriate to resolve bylitigation. The Conference Itcpor t g(~Jpts the }"ngu~lgc or the;House amendment. This language was Rgrecd to by theConferees to ensure that these claims are expcclitiouslv andeguitably resolved.

(Emphasis added.)

It is clear, then, that in 1980, Congress wanted the Indian claims finally

resolved, either by litigation or, if the Secrc t ary or the Interior and the Attorney

Gcncrnl thought that approach inappropriate, by legislation. To move toward

legislative resolution, however, Congress needed the assistance or the Departments

of Interior and Justice to identify and formulate feasible and reasonable lcg islut ive

proposals for its consideration. As Representative Danielson, the manager of the

bill in the House, remarked, the BJA has "possession of all the maps ... the

treaties ... the surveys ... all the data." 126 Cone. Rec. Hl~4J (daily ed. Mar-ch

18, 19(0). Once picscntcd with concrete legislative proposals, Congress could

decide how, or even if, it should resolve the claims. Because in the past the BJA

l8The bill was amended on the 0001' to require the Secretary of thelnterior rather than the Attorney General to submit the report to Congress. See126 Congo Rec. Jll948-49 (daily ed. Mar ch 18, 1982). --

,

-13-

had not always acted expeditiously in identifying or litigating Indian clairns,19

Congress might have reasonably believed that it was necessary to require the

19Congressmnn Udall stated his reasons for seeking another extension ofthe statute of limitations:

During the consideration of that last extension bill, Itried to give my colleagues assurances that we would not beback asking for another extension. However, those assuranceswere made basco upon t hc expectation t hat tile Administrationwould move expeditiously and responsibly to secure funding toascertain the number of claims and prepare them lor filing .

. . . I ftm advised that this was not the case ....

§latllte of Limitations Hcarir'!Z, ~J.!l?ra note 17, at 6. The floor debate is repletewith remarks about the BIA's lack of diligence. See, ~g.-:, 123 Congo Bee, Hl943(daily ed. Feb. 28, 1980) (statcm ent of Rep. Danielson, manager of the bill in theHouse):

Since that time [1966J the Dcpar tm cnt of the Interior,acting through the Bureau of Indian Affairs, has at tcrnp t co toexercise its fiduciary duty to the Indians by examining claimswhich had been len untouched for years and years, in manyinstances, and recommending them after evaluElting thorn, bywinnowing out those of little value or 110 value, by trying tosettle some out of court, 8S any good lawyer would try to do,but eventually having to refer to the Department of Justicecertain claims which had to be tried in the courts of law.

I will confess that, in my opinion, tile Bureau of IndianAffairs has been somewhat less than diligent in exercising thatresponsibility, and that may be an understatement. ... Ibelieve it has been delinquent and dilatory, and even I wil lsurmise that in some cases it may have been actionablynegligent, ill 110t diGGinG out these cl oirns with enough vigor,with enough nt t cnt ion, and in fAiling 10 present them to theU.S. Depar t ment of Justice for prosecution in a timelymanner ,

Sec also ieJ. at 1119·17 (stntement of Her. Holland) ("J have to say ... that it hasbecn-tJie Jlc~gliGencc, not basically or t lie Congr css but or the various stu i csuno theDepar trn ent or Interior, t ha t has brought us to this point"); id. at HL948 (statementof Rep. Swift) ("lhe extension is needed because of a sluggish bur euucr acy,functioning as 'a trustee of the tribes, l thatl has failed to promptly resolve Iridianclaims against third parties").

--14-

Department to submit legislative proposals by D. set. da l e, The Depar trn erit's

function was crucial if Congress were to evaluate possible: remedies for the Indian

claimants that would not be inequitable to others. 20

2. Requirem ents of the Section

Section 2 requires the Secretary of the Interior to formulate legislative

proposals to resolve valid Indian oarnugc claims when the Secr-etary deems the.. ,

claims "inappropriate" for litigation. We do not -- as the district court did not -

construe the requirement to be merely suggestive: It does not all ow the

government to submit proposals to, Congress only if it wishes to do so. At a

minimum, t he text and the history of Section 2 make it clear that the government

must make a bona fide effort to f~rmulate legislative alternatives [or claims that

it has declined to litigate. The district court concluded that the government has

not .fulfilled its duty under Section 2. We agr cc.

20Congress also appeared to be cxtrcrn ely concerned about possibleprejudice to innocent third parties from litigation, which might. be avoided by alegislative solution. Sec, e.rr., l2G Cong, Rcc. JJn)·l:3 (daily cd. J\lmch 18, 1980)(statement of Rep. Moorh8u-df("these claims hove cast n cloud upon the land titlesof many innocent owners which prevents the sale of their property and makes itvirtually impossible for them to obtain title insurance"); id. (s tu tcmcnt or Rep.Cl ausen) ("failure to ext end the statute would ... place antlnnceessary financialburden on thousands of private individuals and local ;;overnments which Illay benarn ed as defcndants''); id, I1t H1944 (statement or Elp. i,iitche)l) ("failure to extendthe statute of lilllitatio;:;S would mcan that Iandov.ncrs will be drn[~ged into yenrs ofbur-densome and costly l itigat ion, t hat lnnd titles v.ill remain clouded, real estatet.rnnsact ions will stay Ir oz.cn, and pr opcrty values continue to decline....Arkli t ional time is needed to seek legislative solutions to these land claims andavoid mor e legr.] uigtit nuucs."): id. (xtu t crn cnt of 1\0:,. jllcClory) (lIfftilure to ex tendtile dcudlinc will ccr tuinly lwompt the filing of lawsui ts ngo.inst innocentlandowners ... [which would be] expensive for both the landowners and the Indianpeople, [\\'Je hope, hov.cvcr, t.hnt. S. 2222 v. il! be the lust in this series ofextensions so that the cloud curr-ently hovering over these land titles will soon belifted to the benefit of all parties involved").

-15-

Appellants have identified over 17,000 [1re-1966 Indian claims involving old

age assistance claims, unapproved rights of way, transfers of Indian trust lanes

involving inadequate or no consent (forced fee and secretarial transfer claims), and

uncategor iz cd miner-al rights and welfare claims. The government has not litigated

the vast major ity of these claims. It asserts that even if it has a duty to present

proposals to Congress concerning unlitigated Indian claims, it has fulfilled that

obligation. It points to the three-and-one-half-page Sampsel letter, submitted over

a year late and only a few months before tl.e last ext ens.on to the statute of

limitations expired, which explained why the Department would neither litigate nor

propose legislation for some 12,000 of the 17,000 claims. This is a major shortfall in

performance.

The Sampsel let tel' contains leg isl at i ve proposals designed to resolve only

50% of the 1,650 old age assist ance claims. It does not even begin to contain

proposals to resolve the identified presumptively meritorious claims of other kinds,

and therefore does not comply fully wi th the requirements of Section 2. The later

submission or legislative proposals covering one small group of forced fcc claims --

the Shoal water Bay claims - is l ik cw isc insufLici ent to rneet the government's

overall duty.21

The g.o\'(~rn:n(;nt argucs strenuously that requiring it to do more than it

has clone by submitting the Sampsel letter would infringe constitutional pr inc iplcs

of scparat ion-ot-powcrs. H'e disagree. The GCJ\'crnrnent maintains that it must be

all cwcd ult imatc discretion to submit only those legislative proposals that it

considers .wor thy of enactment. We believe, however, that its scpuru t ion-of'-

21 18 8 decline to review the substance 01 the Department's explanation fornot seeking Icg islut ivo resolution. Jt is sufficicnt that we find that the Secretaryfailed to comply with Section::; by not offering legislative proposals for theunlitignted claims.

,

-16-

p,0wers objection is ameliorated by the option of submitting proposals together with

a report that discusses the proposals' benefits and deficiencies. Control or the

substance of the legislative proposals required by Section 2 remains in the hands of

the executive branch .. See Nixon v. Adrninis t rator 01 General Services, 433 U.S.

425, 141 (977).

The Jegislative his19ry of Section 2 indicates that Congress contemplated

receiving a "report detailing legislative proposals" from the Department or the

Interior [or its ccnsidcrat ion.Z? It also r-eveals that Congress wanted the

government to draft and submit to it legislative proposals to accomplish results

similar to those that could be achieved by ligitation. It would then be up to

Congress to weigh the merits and.costs of such legislation. It is not unusual for

Congress to instruct the executive branch to draft regulations incorporating

certain principles and priorities with which the drafting agency may not agree.

22lf accepted, the Government's interpretation would mean that it coulddecline to litigate or to lcg islat e on grounds extr-insic to the validity of tile Indianclaims. In essence, the government contends that it can treat the claims ElS itwould the requests of any special interest group, i.c., by weighing the merits or theclaims against competing priorities. It could then also reject legislative solutionsfor the same reasons that made it reject li t igation. ~ec Letter from DeputyAssistant Secretary Sampsel to Vice President George Bush (Aug. 12, 1982).Appel lants' Brief, Addendum at 'LG-28 (right-of-way claims not suitable forIi t ign t ion on a cost/benefit basis nor for leg isl a t ion on D. "cost effectiveness" basis).

We think that Congress intended ins t eud that when the executive decidesthat Indian claims are too small or too difficult or even too incquit ablc for case­by-case aojudi cat ion, it would use its crc.it ivc talents to fashion a Icg islat ivesolution - as inccco it has done witl: rC[;r:rd to some ()f the claims - that wouldcompensate the claimants but be udmirust rn tivcly cheaper or more accommodatingto competing equities, such [IS innocent t hird-par ty Iauoowners. Congress did notmean that when the executive rejected litigation OIl behalf of the Indians becauseof the costs, that it could then refuse even to submit legislation. Congress clearlysaid that when claims were rejected for litigation it "would require the Dcpar tm cntof Ju-t.ice and the Department of the Interior to rile a report with the -Congressreporting on the status of these claims nnd suggesting legislative means ofdisposing of them." 12G Congo Rcc. H1941-c12 (daily ed. ~lmclJ 18, 1980).

-17-

Certainly, Cong ess can require the executive to submit reports regarding specified

areas of possible legislation. See Physicians' Education N"etwork v. HEW, 653 F.2d

621, 622 n.1 (D.C. Cir. 1981); 13th Regional COIJ2..: v. U.S. Department of Interior,

654 F.2d 758, 761 (D.C. Cir. 1980). We Jail to rind any significant dil'ter ence

between requiring such reports and instructing an agency to detail alternative

legislative solutions to a particular problem. In United States v. Nixon, 418 U.S.... ---

683, 707 (1974), the Supreme Court squarely rejected the argument ~hat the

Constitution contemplates a complete division or authority between the three

branches. Rather, the unanimous Court stated that, lIlU n designing the structure of

our Governrn ent and dividing and allocat ing the sovereign power among three co-

equal branches, the Framer's of thQ Constitution sought to provide a comprehensive

system, but the separate powers were not intended to operate with absolute

inde pend encc."

Indeed, the term "Icgislat ive proposals" may require no more than 11

detailed agency analysis of alternative ways of solving a problem. Nothing

prevents the agency from making its views on any proposal clear to Congress when

it submits the proposal. Here, Congress, [or good reason, directed the Department

of the Interior to provide it with legislative proposals for resolving claims the

government, in its capacity as trustee, has chosen not to litigate. We conclude

that the district court found correctly that Congress is entitled to receive these

proposals. 23

23;'\ let tel' by Assistant Attorney General Carol Dinkins appears to shareour view that claims rejected for litigation must be dealt with lq;isl8.tively andlists five categories of claims appropriate for legislation. Dinkins' Letter ofJo.nw1ry 5, 1882, to Representative Udall, in Appellant's Brief, Addendum at 22.See also memorandum from Clyde O. Mar tz , Solicitor, Depar trncnt of Interior, toRegional Solicitors (July 7, 1880) (At t aclirn ent IJ, Appell ants' memorandum ofOctober 21, 1982).

• >

-18-

D. Stansl1~g

'iVc agree with the district court that appellees have standing to enforce

Section 21s mandate that the Secretary submit legislative proposals to resolve

nonlitigated claims. Standing, of course, involves both constitutional and

nonconstltut ional, prudential considerations. Prudential considerations require the

pla intif f''s interest to be arguably within the zone of interests to be protected or

regulated by the statutory framework within which his claim arises. Sec;~,

Val~j F~~-.S2!_~~~-m ColleJ{~ v . Americans United ror Separation of Church and

Stale, 454 U.S. 464 (1982); Simon v. 'Eastern I{enlucky Welfare Rights Organi7,ation~

426 U.S. 26, 38-39, 39 n.l9 (1976); \\'arth v. Seldin, 422 U.S. 490, 498-99 (1975);

Linda R. S. v. Richard D., 410 U.S" G14, 61G-19 (1973). Given Congress' direct order"

to the Secretary to submit legislation, the government's special fiduciary

relationship to the Indians, and Congress' purpose to resolve the claims justly and

equitably, prudential considerations favor finding that appellees have standing to

enforce the congressional mandate.

Constitutional considcrations also present no bar to standing. Article III

of the Constitution imposes three requirements that a pl a in tifI must meet in order

to establish s tanding: First, "there must be injury in fact, a connection between

the injury claimed ano the plaintiff. Second, the injury must be Lair ly traceable to

the defendant's action, a connection between the injury and defcndant's actions.

And third, there must be H likelihood that the injury will be redressed by a

Invorable decision, a connection bet ween the injury and the action requested of the

cour t." Consumers Union of U.S., Inc. v, Federal Trude Commission, 691 F.2d 575,

577. n.9 (D.C. Cir , 1982) (en bane), citing ValJey Forge Cllf'istian College,~.

The government clu irns that appcltccs have not satisfied the requirements

of Article 1lI because they have not shown [l sufficient likelihood that the remedy

"

-19-

they request will redress their asserted injury. It al'gl1CS that appellees' only injury

is their failure to receive monetary relict for their claims, and then contends that

the nexus between submission of a legislative proposal and monetary relief is highly

speculative because Congress may not enact legislation favorable to appellees.

Like' the district court, we chaructcrize appellees' injury differently. We

conceive of Section 2 as J::oni"erring on appellees a right to have their claims,

presented by their executive branch trustee to an appr opr iat e forum in a particular

manner so that appellees have the Department's [lid in r ertrcssmg their underlying

substantive injury - if not before the courts thr-ougt: l it iga t ion then before

Congress in the form of a concrete legislative proposa1. 24 Although Section 2 did

24lt is well established that if 8. "trustee improperly refuses to bring anaction against Fl third party . . ., the beneficiaries can mainta in a suit in equityngHinst the trustee to compel him to do his duty." 4 A. Scott, Law of Trusts,§ 282.1, at 23~)8-40 (~jd cd. 1%7) (citat ions omit teo); sec, e.fT., ;\'iullning ~':flllcrMusic Cor p., 174 F. Supp. 192, 196 (S.D.N.Y. 1958) Un-tile ov'8nt "a fiduciary ...refuses to brinG suit against 11 third party for the bcriefi t of his cestui", "the cestuimay maintain a bill in equity Ggainst the trustee in which the third party may bejoined").

To deny standing to the Indian beneficiaries in this esse because Congr-essw£inted t he government trustee to consider lcg isla t ive as well (~s litigat ive methodsto resolve its duty would second gucss Congress and assume tht a duty to initiateli t iga t ion is in some way superior to n duty to set forth legislative proposals. Weshould not be so presumptuous, especially since Congrcss' intent is clear. Forexample, the 10110\\'in3' exchange between HepI'C':;cnLutive Danielsen, the Housemanager 01" the bill to extend the statute of Iim i ta t i ons, and a fellow member ofCongress underscores the government's duty as 11 trustee tor the Indians to pursuethe claims on behalf of its Indian wards D.S well as the reasons why its assistance indoing so is indispensable:

r..Ir , Ml\J{,LEllEE. Mr. Chairman, is there anything whichprecludes the Indiaus from lwij)[Ong suits, themselves, if theyhove 1egitimnte cause, if we do no t pass tll::; bill?

·-20-

.not seek to provide the assurance of damages, it did seck to ensure the Secretary's

assistance in congressional resolution of nonlitigublc claims. The government

appellants ' refusal to provide that assistance deprives appellees of a legally

cognizable rigl1t whose "conneetion" to final resolution or their underlying damage

claims was established by Congress itself...This case draws upon the well-established rule that when the Constitution

or a statute confers procedural rights on certain persons, those persons have

standing to insist that the government follow proper procedures in reaching a\

subst ant ive decision, even without any showing that following dillercnt procedures

would have affected the final outcome. Numerous cases, for example, confer

standing on interested parties 'to contest an agency's failure to follow the

Administrative Procedure Act's requirements or the agency's own procedural rules

Footnote continued

Mr. DANIELSON. Mr. Chuir man, there is no legal reasonbut there is D. strong lac tual rcason: namely, the Bur cau ofIndian Affairs has possession of all the records, documents,maps, ct cetera, which are essential to the estubushrn ent ofthese claims.

Mr. MARLENEE. Then that brings me to tile second par tof the question, then, Mr. Cha ir man: The Bureau of IndianAffairs, under this present statute, is ac t ing I1S a privateinvcs t ig ator 1'01' the tribes, in ferreting out these claims. Isthat not a make-work program?

fM. DANIELSO~'L The ansver is no. Under the var ioustr cnt ics between tile United States unci tile various indiannations, tribes and groups over the course or the last ncar ly200 years, the U.S. Government has ill those treaties under­taken to pro t cc t the Indians in t licir rif~hts under the var ioustreaties. Thcr-cfor c, they IlI'C simply (jl~;(~Ii:1rging I.l fiduciaryobligation. 1t must do so. It is an obligation.

12G Congo nee. ]11945 (daily cd. Mar ch 18, 1980).

· ,

-21-

.for r ulcmaking proceedings, whether or n01 the same rule would be promulgated in

the new proceedings. 25 ~ee, s:.:.g..:, ]\ntionfll ConservQtive Political Action

Committee v. Federal EJection Commission, 626 F.2d 953, 957 (D.C. Cir. 1980)

(per curiam) (N Cll AC) ("A plaintiff need only allege that it was denied LanJ

opportunity to comment ... and that, had the opportunity been availnble, it would

*.have commented ...."); Comr1?ittce for Full Employment v . Blumenthal, GUG F.2d

1062, 10G5 (D.C. Cir. 1979) ("Complr~inants are injured if this procedural right is

. ..,denied them, rcgnr dless of whether their complaint is ultimately found

meritorious.") (footnote omitted). Sec .0l:'2.S? Vermont YnnKee Nuclear Power Cor.£:

v. Nntut'al Resources Defense Council, Inc., 435 U.S. 519 (1978); Batterton v .

Marshall, 648 F.2d 694 (D.C. Cir , 1980) (implicit). Similarly, plaintiffs alleging

entitlement to 11 government benefit have been accorded standing to request that

tile government follow cer-tain procedures in determining whether they are entitled

to that benefit. .see, e.K:, (~ol~l:2.er~, v . l\c~ly., 397 U.S. 254. (1970) (hearing must be

held before basic welfare payments may be terminated); Goss v. Lopez, 419 U.S.

56S (1975) (suspended high scl1001 students are entltled to procedural protections

against unfair or' illegal suspensions); Bell v. Burson, 401 U.S. 535 (1971) (driver

involved in an auto accident cannot have his license suspended without a pr ior

--- 25S;e [11s-0 Mountain States Legal Foundation v. Andrus, 489 F. Supp. 383,3% (D. Wyo. 1~J80) (appl ic ants for oil and gas lenses 11Ild standing to challenge theunreasonable delay of federal ofIic inls ill processing their applicat ions under theMineral Lensing Act of Inu because it is the right 01 the applicant "to availhimself of the application route in all clIor t to perfect an interest to the extentnot precluded by some valid exercise of the ag cncy's discretion" and "to hnve thegovernment agerlcy follow proper procedures in the exercise of its discretion").

r_1 T"", "'~~R"""'~

-22-

'hearing to dct er rnine the probability that he would be found at fault); Sniaelach v .

Family Pinance Corp., 395 U.S. 337 (1969) (garnishing salary of alleged debtor

requires either a prior hearing or an extraordinary emergency). Although two

separate branches of the government were involved in the process Congress

mandated her e for resolving nonlitigable claims, it follows that that the Indians

were entitled to have the ~'xecuti\'e braucn adhere to its prescribed role in the

coordinated effort between the branches to secure relief, even though there was no

assurance that the Indians would ultimately prevail.,

The government cites Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1876); Physicians! Education N"etwork v. HEW, 653 F.2d

621, 623 (D.C. Cir. 1981) (per curiam); and Greater Tampa Chamber of Commerce v.

Coldschmiot, 627 F.2d 25B, 26:3 (D.C. Cir. 1980), in support or its contention that

the deprivation of this "procedural benefit" is not connected closely enough to the

tangible injury in fact to meet the standing requirements. We find nothing in these

cases that compels the conclusion that the Indians lack standing to enforce the

mandate of Section 2.

In Simon, plaintiffs sued the Internal Revenue Service, seeking to

invalidate an 11\.8 ruling that allegedly "encouraged" hospitals to deny services to

indigents. The Court focused on plaintiffs' allegation that the regulation

contravcne« the substantive requirements 01 the Internal Revenue Code and did not

cliscuss plaint if Is' complaint that the regulation WIlS issued in violation of the APA.

Dclining plni nt iffs' only injury us their failure to receive hospital services, the

Court found it an "unador-ned speculation" that a different r egulat ion would lead to

increased hospital services for indigents. The plaintiffs had failed to show that

their injury "fairly can be traced to the challenged action of the defendant, and

lwasl not lanl injury that results Irorn vthe independent action 01 some third party

not before the cour t," 426 U.S. at 41-42. One can therefore read Simon at most as

-23-

.hol dingLhat unless a plaintiff can show that a different substantive result from a

government defendant will likely bring about the redress or its substantive injury,

it has no standing- to raise a procedural challenge that may lead to that substantive

resul t.

That is not the situation here. In this case, in contrast to Simon, there is

no question that the lndizlns' desired result trorn the Department-submission of

legislative proposals to Congr ess-s-rnust be presumed to aid them materially in their

damage claims since Congress itself is the author of the legislative alternative

process. We cannot presume that Congress enacted a futile process for executive-

legislative action. This, then, is an altogether diifer ent situation from Simon

because the Indians' loss can "llliJ'ly be traced" to the Department's refusal to

follow Congress' instructions on alternative resolution or their claims. 26 There is

2GJustice Br cnnan's concurring opinion in Simon v. Eastern KentuckyWelfare nights Organization, 426 U.S. 26, 54 n.5 (HJ7G), notes that "in rcgaro to thelAP;\J procedural claim no less than U18 other claims raised, respondents wererequired to demonstrate some connec t ion between the disputed RUling and thehospitals affecting them to make out some injury in lact." (Emphasis added.) Thisstatement supports our interpretation of Simon ano surely does not suggest thatstanding to mise a procedural claim depends on a showing that procedural reliefwill .!Jkc:L~ produce a I'inal favornble substnnt ive outcome. ;\10reo\,or, JusticeBrennan's concurrence also suggests that the plaintiff-respondents' process claimwas not even properly before the Court in Si~~~: "lll t is unnecessary to decide inthis case whether [I he APi\] crcat cd R cognii'[lble interest in ... par t ic ipa tion andstanding to complain or its wrongful deprivation [becauscl lrl cspondcnts ... madeno allegation 01' showing that they desired an opportunity to par ticipate, or thatthey would have availed themselves 01 such on OppOrLUnJty.1I Id. (citation omitted).Sec also Committee for Full Employment v. Blumenthal, 606 r.2d IOG2, IOG8W.C.Cir. 1979) (T'amm, ,1., concurring in par t , ano disscnt ing.in part) (s.tamJing "must bebased on more than nlJegn t ions of ... pr oc cdurul lviolat ions] ... l~ injury to anunderlying substantive interest must be alleged").

"

-24-

no other "third party not before the court" to whom their injury L:; more directly

tr-aceable. In enact ing Section 2, Congress expressed a desire and willingness to

11elp' the Indians resolve their claims, provided the Department did its part by using

its unique knowledge of the facts and equities to propose legislative solutions for

Congress to consider.

In Physicians' Edllc['\{ion Network, an oplhalmologists' organization sought

rescission of an HEI\' report to Congress recommending that optometrists receive

Medicare reimbursement '{or eye care, alleging that the panel that issued the

report hRd been biased toward optorn etr ists. The court found several problems

with plaintiff's standing. First, pluintif I could point to no statute requiring

balanced viewpoints to be represented in the ndvisory group. 653 F.2d at 622."

Second, plaintiff had not challenged the panel'S cornposi tion until three years after

the report was issued. Had they promptly "sought and lbeenJ denied representation

on the panel," the court stated, that procedural claim would have been

"sufIi c icnt ... to support standing." Id. e t GL::>. Since pl ai nt ilIs had not acted

promptly,howevcr, they were "left to argue" the substantive claim that they

"would sulIer economic injury as a r esul t 01 the illegal procedures alleged." Id.

This court found tho chain of causation - from the allegedly biased panel to the

allegedly biased report to proposed legislation t hat rnigrit mise out 01 the report to

enactment 01lef,;islution unfavorublc to the op thalmologis ts -- too weak to support

s t anding . But that conclusion docs not support the government's claim that

appellees lack s tanding to seek procedural rcli ef in this case. Rathel', Physicians'

Networl< endorses the contrary proposition that procedural defec ts, it" promptly

complained of, confer s tanding if the process may materially aid pla int if Is in

seeking subst an t ivc relief.

. )

-25-

In Greater Tam~l1Elrnber of Commerce v. Goldschmidt, plaintiffs

sought to invalidate an executive agreement reGulating ail' travel between the

United States and the United Kingdom, claiming that the "agreernent'' was in fact a

treaty requiring Senate ratification. The court held that even if the air travel

agr eerncnt requir-ed Seriate ratification, there was no substantial likelihood that the

Seriate would prefer an agr ee m ent more lavorabl e to plaintitts, or that the United

Kingdom would agree to such an agreement. liZ7 F.2d 258 .

Goldschmidt did involve a claim for procedural relief, but in a very

different sense than is involved in this case. First, as in Simon, there was no

"subst antial Iikclihood" 1I18.t the yoldschmidt plaint irts would achieve the ultimate

redress they sought because it dC1?ended on the willingness of a third party, the

United Kingdorn, to agree to certain terms concerning air travel. Second, the

GoldschmjcjJ plaintiffs wcr e clcnr ly not the intended beneficiaries of thc

procedural requirement that treaties be approved by the Senate, which is designed

to provide a check on executive power. The court could therefore have denied

standing for the prudential reason that plaint if'Is were not arguably wrtnin the zone

of interests protected by the treaty clause of 018 Constitution. We do not read

Goldschmidt's reliance on the likelihood 01 substantive relief to cast doubt on the

standing of the Indians in this case, since their standing is based on their

congressionally-conierr co riGht to have the Department, their trustee, aid them in

redressing their underlying substantive injury in Congress, through a method

dictated by Congress.

Certainly in this case, where the procedural right invoke9 is an integral

part of the process laid down by Congress througt: which the governm ent trustee is

to redl:ess the Indians' underlying damage claim, neither Simon, Physicans'

Nct\';ol'l<, nor lioJdsehmidt bars standing.

-26-

Conclusion

For the f'or eg oing reasons we affirm the district court's order' as modified

by this opinion. By December 31, lU82, appellants shall submit legislative proposals

to Congress to resolve meritorious claims or institute protective litigation as to

such claims. Appellants shall also make 811 r casonable eflor ts to notify Indian..claimants about government actions with respect to their claims and about the

impending statutory deadline before December 31, 1982.

-,

.J

• (No. 82-2377, Covelo Indian Cornliunity, et 0.1. v. Watt, et 81.). - .

SCALIA, C!rs.'~uit JUdE~, dissenting: The complaint in the present case sets forth various

grounds for relief, including the defendant's violation of various provisions of the Admini­

strative Procedure Act, denial of procedural due process, breach of fiduciary duty, and

deprivation of substantive due process. In issuing the order before us, however, the

District Court found that its "review is based exclusively on P.L. 96-217 and the re­

quirements imposed by section 2 ther-eof'," Distr-ict Court Op. at 29; and that "the funda­

mental question presented ... is-whether section 2 of P .L. 96-217 requires the Secretary

of the Interior to submit to Congress legislative proposals," id. at 37. The Opinion's

Conclusion and Order likewise make clear that all por t ions of the relief provided are in

irnplementation of the duty to submit legislative proposals allegedly imposed by that

statute. It is only that issue which is before us on this appeal. Since I find no standing to

enforce the asser t ed statutory obligation, I would reverse the grant of injunctive relief

and remand to the District Court for disposition of any further issues rernaining in the~ .

case.

The Constitution permits the cour-ts to intervene in private disputes or to sit in

judgmcnt upon the handiwork of the coordinate branches of government only when the

"case or controversy" rcquircrn cnts of Article III are satisfied. Neither on our own

authority nor by congressional directive may we undertake to adjudicate a claim which

does not present an injury in fact to the plaintiff, Warth v. Seldin, 422 U.S. 490,501

(1975), which will likely be remedied by the decree requested, Simon v. Eastern Kcnt\lck:{

Welfare Rights Org., 426 U.S. 2G, 38 (197G).

The present complaint reflects one clear injury in fact: the denial of monetary

claims to which the plaintiffs are entitled. But it is no more than conjecture that the

relief here sought (the Secre tzuy's submission of legislative proposals he disapproves) will

remecly that injury. Even the Cong-ress that asscr t cdly required submission of the propo­

sals would have been free - and f'or all we know likely - to reject them; much more so

the later Congress to which they would be subm i t tcd.

The Supreme Court case closest in point is Eastern Kontuckv. That was a suit---------'-..against officers of the Treasury, challenging the validity of an Internal Revenue Service

. RUling that a hospital need not provide free medical services to indigents in order to

qualify as a charitable corporat ion under §50l(c)(3) of the Internal Revenue Code. Plain­

tiffs were organizations representing indigents whom qualifying hospitals had allegedly

denied such services. As the Supreme Court described the case:

, ,

2

Plaintiffs made two principal claims. The first \\'8.S that inissuing Revenue Ruling 69-545 the defendants had violated the[Internal Revenue] Code .... Plaintiff's' second claim was that theissuance of Revenue Ruling 69-:)45 without a public hearing and anopportunity [or submission of views had violated the rulernakingprocedures of the }\PA, 5 U.S.C. §553.

426 U.S. at 33-34. The Supr.~me Court rejected both claims on the ground that the

plaintiffs lacked standing to raise them. Standing did not exist because it was specula­

tive whether the action demanded of the IRS (elimination of the tax exemption) would

relieve the plaintiff's' concrete injury (denial of medical services), since the latter ulti­

mat ely dcpcj~dcc1 upon independent 'action by private hospitals which was uncertain to

OCCUI'. "Ar t, 1lI,H the Court said, "requires that a Federal court act only to redress injury

that fairly can be traced to the challenged action of the defendant, and not injury that

results from the independent action of some third party not before the court." 426 U.S."-

at 42. So also here. Whatever action the Secretary takes, redress of plaintiffs' concrete

injury (the denial of monetary claims) turns upon the independent action of Congress.

The major ity opinion seeks to avoid application of this case by asserting that the

Secretary's withheld action "must be presumed to aid [the plaintiffs] materially in their

damage claims since Congr-ess itself is the author of the legislative alternative pro-

cess." Maj. Op. at 23. This presumption that the majority establishes must either be

justified by the facts or imposed by law. Surely not tile former, however -- since far

[rom being inevitable, it is not even probable that Congress will enact legislation ident­

ical or similar to the proposals introduced by the Secretary against his will (and therefore

presumably opposed by the President). If the Congress that passed the provision in

question really intended to adopt the Secretary's coerced proposals, it could have re­

quired him to implement them by rule. And whatever was the intent of that ear-lier

Congress, we continue to have elections every two years. One need not assume, as docs

the majority, that the congressional request for legislative proposals is "Iut ile" unless it

produces an assurunce of success adequate to support standing. No more so than the

Internal Revenue Code's provisions for charitable exemptions are "Iutilc'' even though

their assurance of producing the desired effect of encouraging charity would not support

standing in ~EQstern I{entu~.

The majority must intend, then, som e presumption of law, whereby, if Congr-ess

expresses the belief that a par ticular agency action will mor e-than-specula tively help a

3

.par ticulur plaintiff, the cour ts m ust accept it. To begin with, I find no such expression of

congressional belief in the present case. For all that appears, Congress considered the

possibility of ultimate legislation to be as speculative as I do. Not even the committee

-mcmbers who developed the provision here at issue, much less the other Members of

Congress who voted for it on the floor, comrn it tcd themselves to the adoption of any

proposal. If looking were buying, the fine art of window-shopping would be at an end.

But even positing a clear congressional determination, perhaps in the prologue of the bill,

to the effect that lithe relationship between introduction of the legislative proposals!

required hereunder and benefit to the Lidian claimants is not speculative," I cannot

. imagine it could affect our duty here. "Congress may in no event abrogate the Art. III

rninimc: c.. plaint iff must always have suffered la distinct anr) palpable injury to himself"

..• that is likely to be redressed if the requested relief is granted." Gladstone, Realt ors

v. Village 0£J3cllwood, 441 U.S. 91, 100 (1979). Tile assessment of that likelihood is our

own, is to be based upon the facts" and cannot be predetermined by the Congress.

The majority analogizes the present case to those in which the plaintiff complains

of the denial of constitutionally required or legislatively imposed procedures by an ad­

ministrative agency or a court. There is no compar-ison. Those cases do not involve the

doctrine of standing but rather issues of proof. The relief which the plaintiff seeks ­

reinstatement of welf'ar e benefits, lifting of suspension from high school, or revocation

of an order for garnishment of salary - clearly remedies his alleged injury in fact. The

only question is whether omission of the procedure is sufficient in and of itself to invali­

date the administrative or judicial action under attack. Here, by contrast, the plaintiffs

are not asking the district COUl't to mandate enactment of the legislation which alone will

r erncdy their grievances. Causation between the omitted agency action (submission of

legislative proposals) and the ultimate decision (enactment of legislation) must be shown

in order to establish the ability of the cour-t's order to remedy the injury in f act - and

thus it raises an issue of standing rather than mere proof. It might be added that even if

the same issue were involved, the "presurnption'' of causality adopted in the agency and

COUl't cases 1 possesses, what such a presumption would not possess here, 11 reasonable

1 That is, in any event, a variable presumption. Indeed, where basic rights such as theright to counsel ar e not involved, see )'iu FOI~g-:.-Chcu!lgv. IN2~ 418 F.2d 4GO, 4G4 (D.C.Cir. 19G7), it might more accurately be described as 0. shiftinp; of the burden of pr oof .Where, for example, a r cquir cd procedure is orn it tcd by 0. trial court, the appellantgenerally has the burden of showing prejudice, 50'2 Palmer v. Hoffman, 318 u.s. 109, IlG(1943), but tile appellee must demonstr-ate lllek-'oT prejudice when the procedure is consti­tutionally required, sec Clw.pman v. California, 386 U.S. 18,24 (1967), or "relates to the(con t'd)

4

basis in fact. When action by the second two branches of government is involved, it is

-the very premise of the law, as the concept "abuse of discr et ion" connotes, that at least

at the margins certain data, acquired through certain procedures, will produce certain

results. It is one thing to adopt a variable presumption, in that context, that denial of a

required procedure affected the outcome; it is quite another to adopt S'JCll D. presumption

in the context of substantive benefits ultimately to come (if at all) from the halls of

Congress, where no outcome is legally required and abuse of discretion does not exist.

I am aware of only two appellate cases that support the proposition the majority

asserts, issuing relief which does; not remedy any substantive injury in fact: National

Conservative Political Action Committee v. FEC, 626 F.2d 953 (D.C. Cir. 1980); Com­

mittee for Full Employment v. .131umenthal, 606 F.2d 1%2 (D.C. en. 1979). These deci­

sions invalidate agency action thatwas not shown to produce any substantive harm to the

plaintiffs, because of the omission of procedures to which the plaintiffs were allegedly

entitled. They proceed upon a theory of what might be termed "procedural rights in

vacuo," whereby the denial of a procedural r igut automatically confers standing without

the necessity of inquiry into injury in fact or into the abil ity of the court's action to

remedy that injury. Those decisions are directly contrmy to the Supreme Court's holding

in Eastern Kentuckv - wher c, as noted above, a claim alleging violation of §553 of the.......

APA (as well as a challenge to the validity of the u~ency rule) was dismissed for lack of

standing because of failure to allege substantive harm. 2 They are also contrary to Sierra

substantial rights of a party," see Mc Candlcss v. United States, 298 U.S. 342, 3'17(193G). See also 5 U.S.C. §706"lT!1 judiclal review of agel"lcy action, "due account shall betaken of the rule of prejudicial error").

2 Any doubt that the Court was aware it was disposing of the procedural claim for lackof substantive injury is eliminated by the specific reference to the issue in the separateconcurrence. 42G U.S. at 54 n.5 (Brennan, J., concurring). The majority opinion seeks tomake a virtue of a necessity by treating tile concurrencc as though it were explaining,rather than departing from, \'.'11:1t the Court had done. j\J(1j. Op. at 23, n.26. Given theSupr-eme Court major i ty's explicit reference to the f'act that its opinion was addressingthe §553 claim, ,12G U.S. at 33-34, this seems to me not a fair reading. No more so is thesarn c footnote's reference to Judge Tn m m's insistence upon "injury to an underlyingsubstantive int ercs t," in his Committee f'or Full Emr.lovm cnt dissent, 8S being directed tothe necessity of alleging intent to take advantage of"8.pl:occdural interest.

This is not the place to undertake a critique of the "procedural rights in vacuo"theory. It is enough to note that if Congress CElIl crcate an "injury in f'act" bYinerel~-;saying that a par t icular C18SS has a "r ight" to 11[\Ve somr thing donc, the case 01' contro­versy clause will have been transformed from H constitutional imperative to a st otutoryoption. Unsurpr isingly, this docs not appear to be tile Iav.: "In no event may Congressabrogate the Art. III minima: A plaint if'f must always have suffcrccl'clistinct and pal­pabl e injury to himself' ....11 Gladstone, TIcs.ltors v. \;ilL1c;e of Bell"Nood, 441 U.S. 91,(cont'd) ,

"5

Cl~lb v. j\l_o)'~m, 405 U.S. 727 (1972), where the COUl't denied standing because of lack of

SUbstantive injury in fact, even though the plaintiff claimed that the defendant agencies

"had violated. their own regula tions by failing to hold adequate public hearings," ieJ. at 730

n.2. And LlCY are incompatible with the rationale of other Supreme Court opinions,

which inquire extensively into substantive injury in fact even though procedural defici­

encies are e~l(:ged. See, e.g., United States v. Students Challcnging Regulatory Agency'

Procedures (~~gRAP), 412 U.S. 669 (1973).3.. ,

The decision of this circuit closest in point, both on the facts and on the law, is

Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980).

Like the present case, and unlike Committee for Full Emplo~ and National Conserv­

c.tive Pc::;~ic;f',: Action Commit.tee, Jt involved challenge to final act ion of 8.n adrn iuistra-

tive agency rather than to a procedure preliminary to agency decision; and like the

present case, the f'inal action in question consisted precisely of failure to make 11 submis­

sion to Congress. In that case, we declined to vindicate the plaintiffs! "procedural right"-,

(though it did not occur to us to call it that) to have the President submit to the Senate,

for approval as a treaty, certain international ail' service arrangements that had been

concluded by executive agreement. Tile majority finds that the plaintiffs in Golds~~mic1t

(who included individuals and cities served by the nil' traffic to which the international

agreement pertained) 11"';81'8 clearly not the intended benef ic iar ies of the procedural

requirement that treaties be approved by the Senate, which is designed to provide a

cheek on executive power ," Maj. Op. at 25. The treaty requirement is assuredly meant

to provide a check on Executive power, but it seems to me the intended beneficiaries of

100 (1na).

3 A. district cour t case cited by the majority also supports the "procedural rights inVIlCIlO ll theory, but it is weal: and eonf'using author-ity. In xlount ain St.at.cs LC'f:al Fotlnc':n­1..1011\1. t'\nor-us, 498 F. Suf.'p. 383 (D. \\'yo. i 980), the courCfc,lps TroI11'its dcii:J-onstra-tl(:;ll­11)[lLlli1fI)0'1~'[lllcase applicant denied 11. lease can challenge 11 procedural defect in tileleasing process, id. at 397, to the conclusion that any plaintiff can do so. The opiniondoes not warr-ant extensive discussion here. Suffice it to SD.y that the Ninth Circuitopinion which the distr ic t court mistakenly cites as authority for its holding clear-ly setsforth the proper rule:

1'J1e procedur-al injury implicit in agency f'ailur e to prepare an [EnvironmentalImpact Statementl - the creation of 11 risk that serious environmental impactswill be overlooked - is itself a sufficient iujury in f'act to support standing, pro­video this iniurv is alleged bv [l plaintiff havinsr a sufficient geogrl1Dhicnl ne~L1s toT\lc-slte--ort: I;C~'T:-:l11 c nF(~~TDl:oi cc t t hi{\.- ik: 111 n \,. be C':~i)(' c t e(ftoSi.T~ha te v(:['Cln;lr:oiln10II tiifco~iCi1CestT1C[)rOTc(~ t 111nyTlavc:---

City of Davis v. Coleman, 521 F.2c1 661, 667 (9th Cir. 1975) (emphasis added).

i ~

6

that check FTC precisely those individuals who might otherwise be affected by tr.c parti-

..cular unilateral executive action. In any event, that ground of decision also did not occur

to us at the time, and seems to me far from so self-evident that the case can be ex­

plained away on that basis. Goldschmidt was explicitly decided on the same ground that I

would apply here: standing did not exist because thc possibility that the relief requested

(submission of the agreement for Senate approval) would redress the plaintiffs! palpable

injury (denial of international air service) was speculative. The major-ity also seeks to

distinguish ~:Jldschmidt on the basis (if I understand it correctly) that the necessity for

the United Kingdom to agrt!e to the provisions that would benefit plaintiffs added an

additional element of uncertainty to the mutter. I am, I confess, unsure whether the

unpredictability of action by the Senate and the United Kingdom is any greater than the

unpredictability of action by the Senate and the IIouse, but I am certain it is not a differ­

ence of constitutional dimension. '.

The major i ty's opinion is sprinkled with references to the defendant's trusteeship

responsibility. That may have some bearing upon the substantive liability of the defen-. ,

dants apart from the statute. It may even have some bearing (though I doubt a disposi-

tive one) upon the power of Congress to enact the statute itself. It can have no conceiv­

able bearing upon the standing issue presented here, which turns quite simply upon the

speculative effect of the requested relief. As noted at the outset of this opinion, I leave

any substantive issues turning upon the trusteeship obligations of the United States to be

addressed in later stages of this litigation.

TIle disregard of traditional standing constraints in the present case is par t icularly

regrettable because of the substantial constitutional question that must be confronted

when standing is overcome. It is questionable whether Congress has the power to compel

the President to submit oraf t legislation - especially draft legislation of which he disap­

proves. The constitutional provision that the President "shall ... recommend to [the

Congress's] Consideration such Measures f1S he shall judge necessary and expedient," art.

II, §3, may well be reael to insulate him from compulsion to submit measures he (be'S not

judge to be so. The majority notes that Dgcncies are frequently required to dr af t regula­

tions contrary to their own desires. But that is an executive duty of law-implementation

that may properly be imposed. The submission of legislative proposals, on the other

hand, implicates the consti tutional role of the President as a par t icipant in the legisla­

tive process, \·.. here it is by no means clear that the same congressional power to com­

mund applies. As for the rnajor i ty's relinnce upon the many provisions that require

Executive submission of reports to Congress: Even to the extent (which may be com­

pletely} that these statutes, too, mandate a purely executive duty, it is not yet estab-

7

r

lishcrl that the cour-ts have the power which is at issue in this case, to enforce them. See

.. United States v. Nixor~, 418 U.S. 683, 712 n.19 (J974).4

It does not take a naive faith in hcr rnit ically sealed separation of the three

brenches to believe that the Executive's power to submit 0[' not to submit legislation is

an important element in the checks and balances that the Constitution establishes. Nor

an acute perception of political realities to understand how congressional authority to

compel such submission might be put to uses that weaken the second branch. One can

envision the Executive's being required to submit proposals that are in opposition to.,legislative alternatives it has introduced; or a mandated legislative proposal lito place the

Social Security System on an actuar ially sound basis," labelled the "Adrninistrat ion BiH,1I

despite its submission under protest. In oral argument, the Government stated that it

was aware of only one other statute similar to the one before us, requiring Executive

submission of legislative proposals, That was enacted in 1977, and also involved Indian

rights. Surface Mining Control and Reclamation Act of 1977, Pub. L. No. 95-97, §7l0, 91

Stat. 445,523, codified at 30 U.S~C. §1300 (Supp, III 1979). The very scarcity of such'-

legislative provisions suggests that Congress has sensed the impropriety of dictating the

legislative activities of the Executive Branch.

Further constitutional difficulties lie ahead, if the Court intends its decree to be

any more than a gesture of good will. To mandate a legislative proposnl is, prcsumnr.ly,

to mandate a genuine legislative proposal and not mere pretext. But the political qucs­

tion doctrine, see Ilaker v. Cal'l~, 369 U.S. 186 (1962), if not the prohibition against ren­

dering advisory opinions, sec Corr cspondencc of the Justices, Letter from Chief Justice

John Jay and the Associate Justices to President George 'Washington (Aug. 8, 1793),

makes it unlikely that this court will become involved in substantive review of legislative

SUbmissions. If that is so, the relief. granted is Ultimately illusory - a common indication

that the matter is not judicial business at all.

In the I13st analysis, legal rules arc designed to assure the achievement of just and

sensible results. If there were no doctrine of standing to preventour involvement in U1e

4 I know of no case in which, even in the absence of an asser-tion of executive privilege,submission of a report to the Congress has been ordered by the coirr ts. Only one casecited by the major ity even contains dictum approving such action. 13th neg. Corp. v.:!}e[>l: of JI]!eri?J:, G54 F.2d 758 (D.C. Cir . 1\"180). Footnote 1 of Physic:i.c~2s' Educa!lo:1Network v. 11E\';, G~:3 F.2d G2l (D.C. Cit'. 1981), also cited by the mnjor ity, only refers toTl1e -e:"isTC)1ce aT such n report rcquir em ont in the statute there in question. I do notcontest, of course, Congress's power, frequently exercised, to demand such reports and toexact compliance by its own means. Tha t, however, is quite a different issue.

r8

present case, it would be necessary to invent one. It is difficult to conceive of a situa­

'han less rewarding of judicial energies. Here we have a duty, assertedly imposed upon

the Executive, which Congress has demanded be rendered ~tsclf. If performance of

that duty ultimately benefits these plaintiffs, it is only because Congress (which alone

can enact the legislation sought) desires the benefit; and if the mandated submissions by

the Executive GTe really necessary at' useful mcans to that end, then presumably Con­

gress would desire the means as well. It is in a better posi tion than we to know whether

the means have genuinely been provided. It also has powers far beyond our own to obtain..them - not only the power to hold the offending officers in contempt, but the power to

impeach and remove them, not to mention the numerous methods, from denial of approp­

riations to delay of pending nominations, by which Congress can make the Executive's

life difficult. There is no justification in law or in practicality for this court to ride to

the assistance of an allegedly uninformed and impotent Congress which will otherwise

not be able, as it wishes, to help these plaintiffs.

I would reverse and remand.',