MEMORANDUM

TO:Tony Hoang, Esq.

FROM:Jason B. Aamodt, Esq.; Kalyn Free, Esq.;Bud Scott; Eric Grantham

SUBJECT: The Ponca Tribes Claims are not bared by any statute of limitations

DATE: October 5, 2018

QUESTIONS PRESENTED

  1. Under federal statutory and common law, did the United States government waive sovereign immunity as to the Ponca Tribes’ claims by tolling the statute of limitations in the Appropriation Acts and through § 702 of the Administrative Procedure Act?
  2. Does the Indian Claims Commission Act[1] bar the Ponca Tribe’s request for an accounting for assets and property held in trust by the federal government, especially for claims accruing prior to 1946, such as for (1) any funds authorized by statute or treaty, (2) any distribution or sale of lands under the 1904 Ponca Allotment Act,[2] (3) any funds arising from right-of-ways or encumbrances granted on or through Ponca lands, and (4) any federal indemnification obligations arising under the Treaties of 1825.[3]

SHORT ANSWER

  1. Yes, Congress specifically waived sovereign immunity in the Appropriation Acts and, notwithstanding that waiver, sovereign immunity is waived under § 702 of the Administrative Procedure Act because the Ponca Tribe’s claim is equitable in nature and Congress never foreclosed judicial review federal government’s discharge or non-discharge of trust duties.
  2. No, the Indian Claims Commission Act does not bar the Ponca Tribe’s request for an accounting for assets and property held in trust by the federal government. The Ponca Tribe seeks relief under 28 U.S.C. § 1331, and subsequent case law addressing this issue holds that accounting claims (and restitutionary relief for wasted trust assets that cannot be accounted for) do not begin to accrue until an accounting is provided to the tribe.

DISCUSSION

  1. SOVEREIGN IMMUNITY

The Ponca Tribe’s cause of action is a “civil action arising under the Constitution, laws, or treaties of the United States”[4] for an accounting of the Tribe’s real and financial assets managed by the United States. The claim for an accounting is supported by 25 U.S.C. § 162a, other related statutes, inter alia, 25 U.C.S. §§4011, 4021, 4023, 4041, 4043 & 4044, and the federal common law of Indian trust management.[5]

It is axiomatic that the United States may not be sued without its consent.[6] The United States immunity for the above mentioned claims was waived under the various Appropriations Acts extending the statutes of limitation within which the Tribe (and all other tribes) might make accounting claims. The United States immunity is also waived under § 702 of the Administrative Procedure Act.

  1. Congress Waived Sovereign Immunity By Enacting the Various Appropriation Acts Extending the Statutes of Limitation for Tribal Accounting Claims

In Shoshone Indian Tribe v. United States the Federal Circuit Court of Appeals construed Public Law No. 108-7 (2003),[7] an Appropriation Act, as a waiver of the United States’ sovereign immunity.[8] The language of the Appropriation Act provided, in relevant part, that

notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.[9]

Appropriation Acts with this substantive effect had been enacted every year since 1990.[10] The court held that “[b]y the plain language of the Act, Congress has expressly waived its sovereign immunity” as well as deferring accrual of the tribe’s cause of action.[11]

  1. Sovereign Immunity Is Waived by § 702 of the Administrative Procedure Act

Alternatively, the Tribe seeks an accounting for its funds and assets held in trust by the federal government as an equitable remedy under § 702 of the Administrative Procedure Act. Section 702 of the APA waives federal officials and agencies’ sovereign immunity for all of the Ponca Tribe’s claims. Section 702 states, in part, the following:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. . . .”[12]

Section 702 was intended “to eliminate the defense of sovereign immunity with respect to any action in a court of the United States seeking relief other than money damages and based on the assertion of unlawful action by a Federal officer.”[13] Clearly, the Ponca Tribe’s claims, which stem from the statutory right to an accounting under, inter alia, 25 U.S.C. § 162a(d)(1)-(7), fall under the APA § 702.

Section 702 retains the sovereign immunity defense in actions for injunctive relief only when another statute expressly or implicitly forecloses equitable relief.[14] There are no such statutes foreclosing the accounting relief the Tribe requests in this case, and instead, there are statutes specifically allowing the Tribe to bring suit.[15]

The case law and legislative history of § 702 clearly evince the federal government’s consent to suit in the present case. The Tribe’s prospective request for an injunction is an action for relief “other than money damages.” The Tribe has sued federal officers for actions taken, or not taken, in their official capacity. Therefore, Congress has directed that the Tribe’s suit “shall not be dismissed nor relief . . . denied on the ground that it is against the United States.”[16] Sovereign immunity does not bar the Tribe’s suit seeking injunctive relief.[17]

While Congressional intent to restrict judicial review of an agency action may foreclose suit through 5 U.S.C. § 702, Congress never foreclosed judicial review of the discharge of the federal government’s trust duties, as it surely could have. 25 U.S.C. § 162a(d), upon which the Ponca Tribe bases some of its claims, states that “the Secretary’s proper discharge of the trust responsibilities of the United States shall include (but are not limited to)” a list of duties imposed on a trustee managing a beneficiary’s estate. The District Court in Cobell v. Babbitt[18]held that “it would have been difficult for Congress to choose less discretionary language with regard to the trust duties sued upon in this case, despite the complexity of the trust accounting system.”[19] As trustee, the government is held to the same types of standards as all trustees and governed by the law of trusts.[20] As such, there is no clear Congressional intent of committing the trust duties sued upon solely to agency discretion as a matter of law for the purposes of 5 U.S.C. § 701(a)(2). Insofar as the Tribe seeks specific injunctive and declaratory relief, the government has waived its sovereign immunity under § 702.[21]

Whether there is a final agency action is a also a jurisdictional question. “With a few exceptions, if there is no final agency action, there is no basis for review of the government’s decision or policy. One exception occurs where plaintiffs claim that a governmental action was unlawfully withheld or unreasonably delayed.”[22] “While a single step or measure is reviewable, an on-going program or policy is not, in itself, a ‘final agency action’ under the APA.”[23] “[W]here a federal court has jurisdiction to hear challenges to an agency action it also has jurisdiction over claims of unreasonable delay.”[24] Where “an agency is under a statutory duty to act, failure so to act constitutes, in effect, an affirmative act that triggers ‘final agency action’ review.”[25] The federal government has been under an obligation to account to the Ponca Tribe for the management of its estate. As such, the United States’ failure to account to the Ponca Tribe is reviewable final agency action under the APA, allowing for a waiver of federal immunity under APA § 702.

  1. THE INDIAN CLAIMS COMMISSION ACT DOES NOT BAR THE PONCA TRIBE’S REQUEST FOR AN ACCOUNTING

The Indian Claims Commission Act[26] conferred jurisdiction upon the Indian Claims Commission to hear and determine tribal “claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit.”[27] Section 12 of the Indian Claims Commission Act reads:

The Commission shall receive claims for a period of five years after the date of the approval of this Act (August 18, 1946) and no claim existing before such date but not presented within such period may thereafter be submitted to any court or administrative agency for consideration, nor will such claim thereafter be entertained by the Congress.[28]

While the Indian Claims Commission Act appears to bar claims made by tribes or their members against the United States accruing prior to 1946, subsequent statutory authority directly addresses the claims for an accounting requested by the Ponca Tribe. A thorough analysis of the Ponca Tribe’s claim is necessary to understand why the 1946 Act does not prevent the Tribe from requesting an accounting for their trust funds and assets held by the United States.

  1. Historical Circumstances Surrounding the Passage of the ICCA, the Trust Reform Management Act and the Various Appropriation Acts

The jurisdiction to hear claims brought by “any Indian tribe, band, or other identifiable group” of Indians developed out of the decision by Congress in 1946 to establish an Indian Claims Commission with authority to hear claims against the United States falling within five enumerated classes.[29] The Indian Claims Commission was established in response to Congressional concern over a growing backlog of Indian claims awaiting jurisdictional grants from Congress, then the sole mechanism available to tribes seeking redress of grievances based on Indian treaties and agreements to bring cases before the Court of Claims.[30]

Congress also provided for the resolution of future Indian claims by extending the jurisdiction of the Court of Claims to include claims against the United States brought by any “Indian tribe, band, or other identifiable group of American Indians” accruing after the date of the approval of the Act creating the Indian Claims Commission.[31] A separate jurisdictional act was no longer required for Indian claims to be heard by the Court of Claims:

The jurisdiction of the Court of Claims is hereby extended to any claim against the United States accruing after the date of the approval of this Act in favor of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limit of the United States or Alaska whenever such claim is one arising under the Constitution, laws, treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band, or group.[32]

In 1949, this provision, initially placed in Title 25 (Indians) of the United States Code,was repealed and, with minor changes, recodified under Title 28 (Judiciary and Judicial Procedure).[33] The only change in the language of the provision reflected the date of enactment of the Indian Claims Commission Act: “The Court of Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians . . . .”[34] The Indian Claims Commission terminated on Sept. 30, 1978.[35]

Passed during the inception of the federal government’s “Termination Policy” era, the Indian Claims Commission Act was intended as a final determination of federal responsibility to tribes. According to Assistant Secretary Gover, “this time the policy was called the ‘termination policy.’ Termination basically meant the severing of the relationship between the tribe and the United States, and, specifically, the severing of the trust relationship.”[36] Congress directed BIA to identify tribes that were said to be “ready for termination, ready to be released from federal supervision because by this point the conclusion had been reached that the real problem with Indian affairs, and the real reason the Indians are poor is that they're under the thumb of the federal government.”[37] Following that direction, the United States withdrew recognition of the existence of certain tribes and forswore any responsibility to those tribes or their people as Indians.

In the 1960s, congressional policy changed direction and the termination policy ended.[38] After the termination policy came to an end, the federal government again recognized the need for managing the tribal trust situation, as indicated by its enactment of subsequent legislation on the issue as discussed below.

Misplaced Trust and The Trust Reform Management Act

By the mid-1980s there was uniform disapproval of the manner in which Interior was administering the funds and assets held in trust for tribes and individual tribal members through Individual Indian Money accounts. In 1988, Congress began to hold oversight hearings related to the handling of government trust accounts. On April 22, 1992, the House Committee on Government Operations issued a report entitled Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the Indian Trust Fund.[39] This report concluded that Interior had made no credible effort to address the problems in trust administration in a “wide range of areas” and that Interior had disobeyed many congressional directives aimed at forcing Interior to correct trust management.[40]

Based in part on the findings made in Misplaced Trust, Congress passed the Indian Trust Fund Management Reform Act.[41] The Act recognized and codified the preexisting trust duties of the Secretary of the Interior, as the primary trustee-delegate of the United States, toward the Tribal assets held in trust.[42] The United States’ obligation to provide an accounting for the daily and annual balance of all funds held in trust by the United States for the benefit of the Ponca Tribe arises under 25 U.S.C. § 4011, the Indian Trust Management Reform Act of 1994, which reads, in pertinent part, “the Secretary shall account for the daily and annual balance of all funds held in trust by the United States for the benefit of an Indian tribe or an individual Indian which are deposited or invested pursuant to section 162a of this title.” Furthermore, the Secretary is charged with “[a]ppropriately managing the natural resources located within the boundaries of Indian reservations and trust lands.”[43]

Enactment of the Indian Trust Fund Management Reform Act in 1994 did not alter the nature or scope of the fiduciary duties owed by the government to tribal trust beneficiaries. Rather, the 1994 Act identified a portion of the government’s specific obligations and created additional duties to ensure that the obligations would be carried out.[44]

  1. Statutory Construction of the Indian Claims CommissionAct

The claims asserted by the Ponca Tribe overcome the statute of limitations imposed by the Indian Claims Commission Act. As shown by subsequent case law and statutory authorizations, the statute of limitations on claims for mismanagement of tribal trust funds by the United States does not commenceuntil the tribe has been provided an accounting by the federal government.[45] The Appropriations Acts which prevent the statute of limitations from commencing until an accounting has been provided to the Ponca Tribe control is subsequent conflicting legislation addressing a more specific subject matter, and is therefore controlling over the Indian Claims Commission Act.

  1. Standard and Rules of Statutory Construction

“[C]onflicting statutes should be interpreted so as to give effect to each but to allow a later enacted, more specific statute to amend an earlier, more general statute.”[46] Also, “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.”[47]

Where two statutes unavoidably conflict and cannot be reasonably interpreted to effectuate provisions of both, the statute most recently enacted controls.”[48] A court should “not look merely to a particular clause in which general words may be used, but” should consider “the whole statute or statutes on same subject and objects and policy of the law, as indicated by its various provisions . . . .”[49] The final construction should “carry into the execution the will of the legislature.”[50]

A canon of construction requires that “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit[.]”[51] Courts “must be guided by that ‘eminently sound and vital canon’ that ‘statutes passed for the benefit of Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.”[52] While the court should consider an agency’s interpretation of ambiguous statutory language concerning the federal government’s obligations to Indians, the court owes no deference to the agency’s interpretation.[53] The canon requiring liberality of construction in favor of Indians acts with its “special strength” even where a federal agency would in other cases enjoy the implied authority to implement ambiguous statutory language supporting competing interpretations.[54]

  1. Statutory Interpretation

The claims asserted by the Ponca Tribe overcome the statute of limitations imposed by the Indian Claims Commission Act,. As demonstrated by subsequent statutory authorizations and the cases interpreting them, the statute of limitations on claims for mismanagement of tribal trust assets by the United States do not commence until the tribe has been provided an accounting by the federal government,[55] and these later statutes control this issue as subsequent conflicting legislation addressing a more specific subject matter.

The 1994 Act explicitly reaffirmed the Interior Secretary’s obligation to fulfill the “trust responsibilities of the United States.”[56] Section 102 of the 1994 Act makes clear that the Interior Secretary owes tribal trust beneficiaries an accounting for “all funds held in trust by the United States for the benefit of an Indian tribe or an individual Indian which are deposited or invested pursuant to the Act of June 24, 1938.”[57]