CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S RESERVATION, et al., Plaintiffs, v. The UNITED STATES, Defendant, 69 Fed. Cl. 639

OPINION HEWITT, Judge. In 1863 and 1892, plaintiffs’ ancestors ceded lands totaling some 20 million acres to the United States. The Indian Claims Commission and this court awarded compensation for those lands. The compensation awarded was then held in trust by the United States. This suit seeks damages for mismanagement by the United States of the funds it held in trust. I.

Background On September 30, 1992, the Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the Rocky Boy’s Reservation, and the Little Shell Tribe of Chippewa Indians of Montana filed this action on their own behalf, on behalf of their respective members, and on behalf of all beneficiaries of judgment funds awarded in certain settlements of land cession compensation suits.

The complaint sought money damages for the alleged mismanagement of judgment funds awarded by the Indian Claims Commission and affirmed by this court and thereafter appropriated and deposited into Treasury accounts for plaintiffs’ benefit. See Plaintiffs’ Class Action Complaint filed September 30,1992 (Compl.) at 1, 8-11.

The court stayed the proceedings at the request of the parties by Order of January 14, 1993 to allow completion by the United States of, and response by plaintiffs to, account reconciliation reports undertaken as part of the Tribal Trust Fund Reconciliation Project carried out by Arthur Andersen LLP under contract to the Department of the Interior. Order of January 14, 1993; see also Plaintiffs’ Memorandum in Support of their Motion for

Summary Judgment on the Money Mandating-ness of the General Tribal Trust Fund Investment Statutes, 25 U.S.C. §§ 161a and 162a ( Pis.’ Inv. MSJ Mem.) at 16. Plaintiffs filed a responsive assessment to the Arthur Andersen reports in July 1997 to which defendant responded in October 1997. Proceedings were again stayed by Order of November 26,1997. Order of November 26, 1997. Subsequent orders extended the stay through July 2002 to allow the parties to pursue discussions regarding the possibility of a negotiated settlement.

By its Order of July 31, 2002, the court lifted the stay and established filing deadlines related to plaintiffs’ motion to file an amended complaint and the relevant responsive pleadings. Order of July 31, 2002 at 1-2. Plaintiffs’ First Amended Class Action Complaint (Pis.’ 1st Am. Compl.) was filed in September 2002 and Defendant’s Answer to the First Amended Complaint was filed in October 2002. A motion regarding joinder of parties and the application of parens patriae doctrine prior to class certification was deemed moot by the court’s Order of September 17, 2003. Order of September 17, 2003 at 2.

Plaintiffs’ Motion to Amend the Complaint to Add the White Earth Tribe as a Named Plaintiff, filed in August 2003, remains before the court. On September 3, 2004 plaintiffs filed their Renewed Motion for Class Certification with the court along with Plaintiffs’ Second Amended Class Action Complaint. Defendant filed its Amended and Corrected Answer on November 23, 2004.

By its Order of January 12, 2005 the court scheduled briefing on: (1) “the extent to which the claims of the individual plaintiffs and the White Earth Tribe are barred by the six-year statute of limitations under 2[8] U.S.C. § 2501 and/or laches, and/or relate back to the date of the filing of the initial Complaint in 1992,” Order of January 12, 2005 at 1, ¶ 1, and (2) “the applicable standard of investment duties of the Secretary of the Department of the Interior,” id. at 1, ¶ 2. The court also scheduled briefing on Plaintiffs’ Renewed Motion for Class Certification. Id. at 1, ¶ 1.

The court now has before it three related motions seeking the following determinations: (1) whether plaintiffs’ investment claims are founded on a statutory duty the violation of which may be fairly interpreted as mandating a right of recovery in damages; (2) whether or not the claims of the plaintiffs whom plaintiffs seek to represent in this action and the claims of the White Earth Tribe whom plaintiffs seek to join in this action are barred by the statute of limitations; and (3) whether the case may proceed as a class action or otherwise address the claims of the large number of beneficiaries of the judgment funds.

Before the court on the statutory duty to invest issue are: Plaintiffs’ Motion for

Summary Judgment on the Issue of the General Tribal Trust Fund Investment Statutes Being “Money-Mandating” (Pis.’ Inv. MSJ) and their supporting Memorandum (Pis.’ Inv. MSJ Mem.); Defendant’s Cross-Motion for Partial

Summary Judgment on Money-Mandating Issues and Opposition to Plaintiffs’ Motion for

Summary Judgment (Def.’s Cross-MSJ) and its supporting Memorandum (Def.’s Cross-MSJ Mem.); Plaintiffs’ Consolidated Reply in Support of Their Motion for

Summary Judgment on the Money Mandatingness of the General Tribal Trust Fund Investment Statutes, Including 25 U.S.C. §§ I61a and 162a, and in Opposition to Defendant’s Cross Motion for Partial

Summary Judgment on Money-Mandating Issues (Pis.’ Consol. Reply); and Defendant’s Reply Memorandum in Support of its Cross-Motion for Partial

Summary Judgment on Money-Mandating Issues (Def.’s Cross-MSJ Reply). Before the court on the statute of limitations issue are: Defendant United States’ Motion to Dismiss or in the Alternative for Partial

Summary Judgment (Def.’s SOL MTD); Defendant United States’ Memorandum in Support of Motion to Dismiss or in the Alternative for Partial

Summary Judgment (Def.’s SOL MTD Mem.); Defendant United States’ Reply Memorandum in Support of its Motion to Dismiss or in the Alternative for Partial

Summary Judgment (Def.’s SOL Reply); and Plaintiffs’ Opposition to Defendant’s Motion to Dismiss or, in the Alternative, for Partial

Summary Judgment (Pis.’ SOL Opp.). Before the court on the class certification issue are: Plaintiffs’ Renewed Motion for Class Certification (Pis.’ Ren. Class Mot.); Plaintiffs’ Second Amended Class Action Complaint (Pis.’ 2d Am.

Compl.); Plaintiffs’ Reply in Support of Their Renewed Motion for Class Certification (Pis.’ Class Reply); Plaintiffs’ Sur-Sur Reply in Support of Their Renewed Motion for Class Certification (Pis.’ Class S-S Reply); Defendant’s Opposition to Plaintiffs’ Renewed Motion for Class Certification (Def.’s Class Opp.); and Defendant United States’ Sur-Reply Memorandum in Opposition to Plaintiffs’ Renewed Motion for Class Certification (Def.’s Class S-Reply). The court also relies on the Transcript of the Oral Argument of October 25, 2005(Tr.). II. Discussion A.

Jurisdiction Through the Tucker Act, 28 U.S.C. § 1491 (2000), Congress authorized the United States Court of Federal Claims to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).

The Indian Tucker Act makes explicit that this court’s jurisdiction extends to “any tribe, band, or other identifiable group of American Indians” for claims against the United States accruing after August 13, 1946. 28 U.S.C. § 1505 (2000) (collectively, the Tucker Act and the Indian Tucker Act are referred to as the Tucker Acts). While the Tucker Acts provide the “clear statement from the United States waiving sovereign immunity” required to establish jurisdiction over a suit against the government, United States v.

White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003), the Tucker Acts do not in themselves create a substantive right enforceable against the United States for money damages, United States v. Mitchell, 445 U.S. 535, 538-40, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (.Mitchell I). The plaintiff bears the burden of establishing subject matter jurisdiction. See Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)).

If the facts on which jurisdiction is predicated are challenged, the plaintiff must support the factual basis for jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); McNutt, 298 U.S. at 189, 56 S.Ct. 780. The court must dismiss the action if jurisdiction is found lacking. See Rule 12(h)(3) of the Rules of the Court of Federal Claims (RCFC) (2005). The framework for determining whether a duty and, in particular, a fiduciary duty established in statute, regulation or contract is money-mandating is addressed in Mitchell I and United States v.

Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II) and, more recently, in White Mountain Apache and United States v. Navajo Nation, 537 U.S. 488, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003) (Navajo Nation). See, e.g., Navajo Nation, 537 U.S. at 503, 123 S.Ct. 1079 (noting that “Mitchell I and Mitchell II are the pathmarking precedents” in determining the existence of a money-mandating duty); Fisher v.

United States, 402 F.3d 1167, 1173-1174 (Fed.Cir.2005) (reviewing the rearticulation of standards in White Mountain Apache and Navajo Nation regarding plaintiffs burden in establishing whether a duty is money-mandating); Shoshone Indian Tribe of the Wind River Reservation v. United States, 58 Fed.Cl. 77, 81 (2003) (noting that “[t]he framework within which this dispute must be resolved” had been restated in Navajo Nation and White Mountain Apache).

In Mitchell I, individual Indian allottees of land in the Quinault Reservation sought monetary damages from the United States for failure to manage timber resources on allotted land, an alleged breach of government’s fiduciary duty under the General Allotment Act of 1887(GAA). 445 U.S. at 537, 100 S.Ct. 1349. The Court reviewed the language of the GAA and its legislative history and found that the intent of Congress expressed in the GAA was that the United States hold the land allotted to individual Indians in trust so as “to prevent alienation of the land” and to avoid state taxation of allotments.

Id. at 544,100 S.Ct. 1349. Management of the allotments was left to the allottees, not to the trustee, id. at 543, 100 S.Ct. 1349, and the Court concluded that the express language of the General Allotment Act established only a limited trust relationship and “cannot be read as establishing that the United States has a fiduciary responsibility for management of allotted forest lands,” id. at 546,100 S.Ct. 1349.

Having concluded in Mitchell I that the GAA did not create specific fiduciary duties regarding timber management, the Court then considered whether other sources of substantive law imposed such duties on the United States. Mitchell II, 463 U.S. at 219-23, 103 S.Ct. 2961. Based on its review, the Court found that “[t]he timber management statutes and the regulations promulgated thereunder establish the ‘comprehensive’ responsibilities of the Federal Government in managing the harvesting of tribal timber.” Id. at 222, 103 S.Ct. 2961 (citations omitted).

These fiduciary responsibilities in turn “directly support[ ] the existence of a fiduciary relationship.” Id. at 224, 103 S.Ct. 2961. The Court then addressed whether these duties were money mandating and concluded that “the statutes and regulations at issue here can fairly be interpreted as mandating compensation by the Federal Government for violations of its fiduciary responsibilities.” Id. at 228, 103 S.Ct. 2961. “Given the existence of a trust relationship, it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties.” Id. at 226, 103 S.Ct. 2961.

Although the substantive law that established these duties did not expressly declare that their breach would be compensable, the Court noted that “the substantive source of law may grant the claimant a right to recover damages either ‘expressly or by implication.’” Id. at 217 n. 16, 103 S.Ct. 2961 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007 (Ct.Cl.1967)). The Supreme Court revisited the “fair

interpretation” test articulated in Mitchell II in a 2003 case involving the government’s alleged failure to maintain facilities it held in trust for the White Mountain Apache Tribe on the former Fort Apache Military Reservation. White Mountain Apache, 537 U.S. at 469, 474, 123 S.Ct. 1126. In White Mountain Apache, the Court noted that the governing statute went beyond the “bare” or limited trust in Mitchell I by “invest[ing] the United States with discretionary authority to make direct use of portions of the trust corpus.” 537 U.S. at 475, 123 S.Ct. 1126.

By exercising daily supervision and occupation of the trust property, the Court concluded that “the United States ... has obtained control at least as plenary as its authority over the timber in Mitchell II.” Id. The Court then found a money-mandating responsibility to manage and conserve the trust property in the common-law duty of a trastee to preserve and maintain trust assets, despite the absence of explicit language in the governing statute imposing a fiduciary duty of conservation and management.

Id. “It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages.” Id. at 473,123 S.Ct. 1126.

In an opinion interpreting the Indian Mineral Leasing Act handed down on the same day as White Mountain Apache, the Court was unable to find in the statutes and regulations governing coal mining leases the requisite “rights-creating or duty-imposing statutory or regulatory prescriptions” that could “fairly be interpreted as mandating compensation by the Federal Government for the damages sustained” from an alleged breach by the trustee. Navajo Nation, 537 U.S. at 503, 506, 123 S.Ct. 1079.

Far from finding money-mandating provisions in the substantive law, the Court emphasized that “no provision of the [governing statute] or its regulations contains any trust language with respect to coal leasing.” Id. at 508, 123 S.Ct. 1079. While the Secretary of the Interior was required to approve leases negotiated between the Navajo Tribe and a third party, the approval function did not include a duty to ensure a rate of return higher than the minimum royalty specified in the regulations. Id. at 510-11, 123 S.Ct. 1079.

The rate negotiated by the Navajo Tribe and the lessee and incorporated in the lease approved by the Secretary exceeded the regulatory floor. Id. at 510, 123 S.Ct. 1079. The lease was in conformity with the statute and regulations then in effect and the Secretary was not under any fiduciary or other duty to maximize the return to the Navajo Tribe from its coal leases; therefore, as in Mitchell I, the Court found that the government was not in breach of a money-mandating fiduciary duty.

Id. at 514, 123 S.Ct. 1079 (“[W]e have no warrant from any relevant statute or regulation to conclude that his conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act.”). B. Whether a Money-Mandating Fiduciary Duty Exists 1. The Creation of the Pembina Awards The funds at issue in this ease were awarded in suits brought by descendants of the Red Lake Band of Chippewa Indians and the Pembina Band of Chippewa Indians challenging the compensation received for lands located along the Red River in what are now the states of North Dakota and Minnesota.

The lands were ceded to the United States in two separate agreements. See Red Lake, Pembina and White Earth Bands v. United States, 164 Ct.Cl. 389, 392-93, 1964 WL 8580 (1964); Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct.Cl. 426, 490 F.2d 935, 938 (1974). The first suit sought compensation for 7,488,280 acres ceded to the United States under the Treaty of October 2, 1863, 13 Stat. 667, as modified by the Treaty of April 12,1864 (1863 Treaty), for which the United States had paid eight cents an acre. Red Lake, Pembina and White Earth Bands, 164 Ct.Cl. at 394.

The Indian Claims Commission found the payment to be unconscionable and granted a gross award of $3,369,726.00 to the plaintiff tribes, with a net value of $2,760,245.64. Id. One third of the gross settlement was adjudged for the Pem-bina Band. Id. at 399. The Court of Claims also addressed the distribution of the award and determined that “the award must go to the tribal entities rather than descendants of the bands.” Id. Congress appropriated funds to satisfy this and a number of other settlements and judgments by the Deficiency Appropriation Act of 1964, Pub.L. No. 88-317, 78 Stat. 204.

Chapter XI of the Deficiency Appropriation Act of 1964 (1964 Award) did not recognize the amounts or terms of the individual settlements and judgments funded but rather made a bulk appropriation with generic provisions regarding the requirement for finality of claims prior to distribution and the payment of interest. See Pub.L. No. 88-317, ch. XI, 78 Stat. 204, 213 (1964). The appropriation was for $12,831,443 plus whatever amount was required by individual judgments or by law to pay interest. Id.

The 1964 Award included a provision stating that payment of interest where appropriated on the claims and settlements would not continue beyond thirty days from the date of approval of the appropriation, unless specific provision was made in the judgment or by law. Id.

The 1964 Award stated: For payment of claims as settled and determined by departments and agencies in accord with law, and judgments rendered against the United States by the United States Court of Claims and United States district courts, as set forth in Senate Documents Numbered 50, 74, and 75 and House Document Numbered 300, Eighty-eighth Congress, $12,831,443, together with such amounts as may be necessary to pay interest (as and when specified in said judgments or provided by law) and such additional sums due to increases in rates of exchange as may be necessary to pay claims in foreign currency: Provided, That no judgment herein appropriated for shall be paid until it shall have become final and conclusive against the United States by failure of the parties to appeal or otherwise: Provided further, That, unless otherwise specifically required by law or the judgment, payment of interest wherever appropriated for herein shall not continue for more than thirty days after the date of approval of this Act.

Id. The express language of the 1964 Award revealed little of the nature of the individual claims or the judgments funded, but did express a clear intent to limit payment of interest on the funds appropriated to that provided for by the terms of the judgment or other laws. See id. In 1971, Congress approved a plan for the distribution of the 1964 Award. Pub.L. No. 92-59, 85 Stat. 158 (1971) (codified at 25 U.S.C. §§ 1241-1248 (2000)) (1971 Distribution Act).

The 1971 Distribution Act apportioned the award among four beneficiaries: (1) the Minnesota Chippewa Tribe (White Earth Band), (2) the Turtle Mountain Band of Chippewas of North Dakota, (3) the Chippewa Cree Tribe of Montana, and (4) the group of lineal descendants of the Pembina bands subject to the 1863 Treaty who were not eligible for membership in any of the three named beneficiary tribes (the nonmember Pembina descendants). See 25 U.S.C. § 1244.

The Secretary of the Interi- or was instructed to establish a roll of eligible Pembina descendants, 25 U.S.C. § 1242, and to apportion funds among the three named tribes according to their enrolled membership, with the remaining funds distributed in equal shares among the members of the group of non-member Pembina descendants. 25 U.S.C. § 1244. The three named tribal beneficiaries also requested that their portions of the 1964 Award be distributed to eligible members on a per capita basis. Pis.’ Inv. MSJ at 12.

Distribution of the 1964 Award began in October 1984, twenty years after appropriation of the judgment funds. The second suit sought just compensation for about 10 million acres of land in North Dakota that was not ceded under the 1863 Treaty but from which many of the Pembina Chippewa were subsequently compelled to move on threat of loss of their annuities negotiated under the 1863 Treaty. See Turtle Mountain Band, 490 F.2d at 938.

The McCumber Commission negotiated an agreement with the Chippewas in October 1892 (1892 Agreement), amended and approved by Congress in 1904, which ceded the 10 million acres in question to the United States. Lieu Lands Act of 1904, ch. 1402, 33 Stat. 189, 194. The Chippewas were paid $1 million for the 10 million acres of land, 33 Stat. at 195, leading many to refer to the 1892 Agreement as the “Ten Cent Treaty.” See Def.’s MTD, Appendix (App.) D at 16 (Letter from William Gipp, Acting Area Director, Tribal Government Services).

In a suit brought by the Turtle Mountain Band of Chippewa Indians, the Pembina Band of Chippewa Indians, and the Little Shell Band of Chippewa Indians, the Indian Claims Commission awarded the plaintiffs $52,277,337.97 as additional compensation for land ceded by the 1892 Agreement. See United States v. Turtle Mountain Band of Chippewa Indians, 222 Ct.Cl. 1, 612 F.2d 517, 518-19 (1979) (noting that the award represents “the difference between the fair market value of the land on the date of extinguishment of the aboriginal title and the compensation the government previously paid for the land.”).

The net award of $47,376,622.93, reflecting offsets and adjustments of $5,150,715.05, was decided in a partial judgment of March 18, 1980. Turtle Mountain Band of Chippewa Indians v. United States, 229 Ct.Cl. 872, 872 (1980). The net award was augmented by $4,900,715.04 awarded in a December 1, 1981 judgment, bringing the total of the two awards to nearly $52 million. Id. Congress made two separate appropriations, in March 1980 and December 1981, constituting collectively the 1980 Award. Id. The court refers to the 1964 Award and the 1980 Award collectively as the Pembina Awards.

Congress provided for the use and distribution of the 1980 Award in December 1982. See Pub.L. No. 97-403, 96 Stat.2022 (1982) (1982 Distribution Act).

Section 2 of the 1982 Distribution Act divided the appropriated funds and the accrued interest and investment income among the Turtle Mountain Band, the Chippewa Cree Tribe of Rocky Boy’s Reservation, the Minnesota Chippewa Tribe, the Little Shell Band of Chippewa Indians, and the group of non-member lineal Pembina descendants. Id. § 2.

For the four tribes or bands, the funds were to be divided into two portions: 80% of the funds were to be distributed among the eligible members of the tribe or band in the form of per capita payments, with the remaining 20% of funds retained in the Treasury and available to the governing body of the tribe or band on the basis of an annual program budget, subject to the approval of the Secretary of the Interi- or. Id. §§ 3-6. A partial distribution of the per capita funds was initiated in May 1988 and the final per capita distribution was carried out in 1994. Pis.’ Inv. MSJ Mem. at 14.

Defendant continues to hold the 20% of funds retained for the four tribal beneficiaries for tribal programs. Id. at 14-15. 2. The Parties’ Arguments and the Whiskers Case Plaintiffs contend that the Pembina Awards were, when appropriated by Congress to satisfy the judgments rendered by this court, then and thereafter held by the government in trust for the Indian owners of these funds and that fiduciary obligations attached to the Pembina Awards. See Pls.’ Inv. MSJ Mem. at 15.

Plaintiffs argue that the specific money-mandating contours of the relationship are defined by the investment statutes, including 25 U.S.C. §§ 161a and 162a (2000), that apply specifically to Indian funds held in trust by the United States. See id. at 21, 23-24. The government’s alleged failure to execute properly the fiduciary duties attendant to its management of the Pembina Awards from the time the funds were appropriated through the time the funds were distributed and afterwards forms the basis of plaintiffs’ breach of trust claim. See Pis.’ 2d Am. Compl. at 22-23, ¶¶ 64-68.

Specifically, plaintiffs allege that the defendant as trustee (1) failed to invest the Pembina Awards in a timely manner, id. at 23, ¶ 67, and (2) failed to invest the Pembina Awards so as to attain the “maximum investment return possible,” id. ¶ 68. Plaintiffs claim that the government breached its trust obligations under the general investment statutes applied to trust funds, including 25 U.S.C. §§ 161, 161a and 162a, and that damages suffered due to the alleged breaches of fiduciary duties were compensable. See Pls.’ Inv. MSJ Mem. at 21-25.

Defendant, while acknowledging that a general trust relationship exists between the government and the Pembina Awards beneficiaries, see Def.’s Cross-MSJ Mem. at 12 n. 7, argues that this general trust relationship is insufficient to establish a fiduciary duty the breach of which would constitute grounds for the payment of money damages under the Supreme Court’s holding in Mitchell I and Navajo Nation, see Def.’s Cross-MSJ Reply at 14.

Defendant argues that “[i]n appropriating the funds [to satisfy the 1964 judgment], Congress neither characterized them as ‘trust funds’ nor imposed on Interior an obligation to hold them as ‘trust funds.’ ” Def.’s Cross-MSJ Mem. at 12. Defendant’s motion for partial

summary judgment distinguishes between portions of the Pembina Awards that were distributed on a per capita basis to eligible beneficiaries and portions that were specifically designated as tribal program funds to be held in trust by the government. Def.’s Cross-MSJ at 2-3. Defendant argues that, because neither the acts appropriating the Pembina Awards nor the respective distribution acts stated that the per capita portions of the awards were held in trust and therefore subject to investment by the government, no such duty applied to the per capita funds. Id. at 12-13.

The only express duty to invest the Pembina Awards, according'to defendant, is found in the language of the 1982 Distribution Act providing that “[t]wenty per centum of such funds shall be held in trust and invested by the Secretary for the benefit of the members” of the respective beneficiary tribe, band or group. Id. at 13 n. 8 (citation omitted).

Defendant, emphasizing the language of 25 U.S.C. §§ 161a and 162a(a), argues that the “[the Department of the] Interior was required to invest the per capita funds under the provisions of Sections 161a and 162a only if Congress designated those monies as ‘trust funds,’ that is, as funds to be held in trust.” Def.’s Cross-MSJ at 11-12. Plaintiffs contend that all funds appropriated by Congress to satisfy a judgment are, when deposited in the Treasury to the credit of an Indian beneficiary, “held in trust” by the government. Pis.’ Consol.

Reply at 4 (asserting that “the act of appropriation to an agency such as the Treasury in and of itself creates the trust”). Plaintiffs state that the “general rule” is that funds appropriated to satisfy judgments, including those funds to be distributed on a per capita basis, are trust funds. Id. at 3. In support of this position, plaintiffs rely on, inter alia, Cheyenne-Arapaho Tribes of Indians of Okla. v.

United States, 206 Ct.Cl. 340, 512 F.2d 1390, 1392 (1975) (“It is clear from past actions of this court and from the Supreme Court, and from the actions of both Congress and the Executive Branch, that funds appropriated to Indians to satisfy judgments of the Indian Claims Commission or of this court ... are, when kept in the Treasury, held in trust for the Indians.”); Loudner v. United States, 108 F.3d 896, 900 (8th Cir.1997) (“There is a presumption that absent explicit language to the contrary, all funds held by the United States for Indian tribes are held in trust.”); Angle v.

United States, 709 F.2d 570, 575 (9th Cir.1983) (“We have been able to find, and the parties have cited to us, no evidence of ‘explicit language’ in the statute or its history indicating that the judgment fund moneys were not to be held in trust for the California Indians, pending distribution.”); Rogers v.

United States, 697 F.2d 886, 890 (9th Cir.1983) (‘With this strong tradition [of government’s ‘unique trust obligation’ to Indian nations] in mind, we recognize[] that there is a presumption that absent explicit language to the contrary, all funds held by the United States for Indian tribes are held in trust.”); Moose v. United States, 674 F.2d 1277, 1281 (9th Cir.1982) (“[W]here the United States holds funds for Indian tribes, a trust relationship exists unless there is explicit language to the contrary ____”); Le-Beau v.

United States, 215 F.Supp.2d 1046, 1063 (D.S.D.2002) (finding that, despite the lack of explicit reference to trust status in the relevant acts, “the Judgment Fund at issue in this ease is held in trust by the defendant and is subject to the specific interest provisions in 25 U.S.C. § 161a”); Sisseton-Wahpeton Sioux Tribe v. United States, 686 F.Supp. 831, 836 (D.Mont.1988) (“[T]he court recognizes that

an Act of Congress appropriating funds, in satisfaction of a judgment of the Indian Claims Commission, creates a fund held in trust for the ‘tribes, band, or groups’ in whose favor the judgment of the Indian Claims Commission was entered.”). Notwithstanding the authorities cited by plaintiffs, defendant grounds its argument on the assumption that a trust relationship can only be found if Congress expressly invokes its creation in each instance.

See Def.’s Cross-MSJ Reply at 5 (“Congress differentiates and uses precise terminology'when it specifies that funds are to be held ‘in trust or subject to a duty to invest.”). Defendant relies on the holding and analysis of Whiskers v. United States, 600 F.2d 1332 (10th Cir.1979), see Def.’s Cross-MSJ at 14; Def.’s Cross-MSJ Reply at 14, as support for its argument that the government did not assume a trust relationship in regard to its management of the judgment fund accounts established by the Pembina Awards.

Because this is the principal authority on which defendant relies and because the analysis in the Whiskers ease would, if persuasive, effectively dispose of plaintiffs’ claim in defendant’s favor, the court begins by analyzing the Whiskers decision. The facts in Whiskers are similar to facts of this case. In both cases, Indian plaintiffs had obtained judgments awarding compensation for the taking of aboriginal homelands without just compensation.

Whiskers was a suit brought by individual Indians against the United States alleging that, because of the misconduct of the government, the Indians had failed to receive their rightful shares of judgment funds provided under the Second Supplemental Appropriations Act, Pub.L. No. 89-16, 79 Stat. 108 (1965), and the Southern Paiute Judgment Distribution Act, Pub.L. No. 90-584, 82 Stat. 1147 (1968). Whiskers, 600 F.2d at 1334. The Whiskers court noted that “[t]he settlement was stipulated to before the Indian Claims Commission.” Id. at 1333 n. 1.

In this ease, plaintiffs allege that they have been damaged by “misaceounting and misin-vestment” by the government of the Pembina Awards in violation of its fiduciary responsibilities. Pis.’ Inv. MSJ Mem. at 15. The Pembina Awards were made as a result of judgments issued in favor of the Pembina Bands of Chippewa Indians and the Red Lake Band of Minnesota Chippewa Indians by the Indian Claims Commission. Id. at 11-13.

The 1965 congressional appropriation for the Southern Paiute Nation on which the Whiskers plaintiffs based their claim employed virtually identical language to that used for the 1964 Award to the Pembina to describe the purpose and restrictions of the appropriation, with the only differences being the document number, the identification of the Congress enacting the appropriation statute, and the amount of the appropriation.

The respective distribution acts also followed the same structure and called for similar actions by the Secretary of the Interior in preparing a roll of all those eligible to participate in the distribution of the funds appropriated for the judgments “together with the interest thereon.” The Whiskers court acknowledged that, through the Tucker Act, 28 U.S.C. § 1491, the United States had consented to be sued in the district courts and Court of Claims “whenever ... a substantive right falling within the categories enumerated in the Tucker Act otherwise exists.” 600 F.2d at 1334-35 (citing United States v.

Tes-tan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). As the Whiskers court noted, this substantive right came not from the Tucker Act, but a federal statute or regulation that “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” Id. at 1335 (citing Testan, 424 U.S. at 400, 96 S.Ct. 948, quoting Eastport S.S. Corp., 372 F.2d at 1009). The Whiskers court noted that neither the appropriation act nor the distribution act in question indicated that the funds were to be held in trust pending distribution. Whiskers, at 1335-36.

The Whiskers court rejected, without analysis, the applicability of several statutes concerning trusts, including 25 U.S.C. § 161, of possible relevance to plaintiffs’ investment and trust obligation claims in the present case: Plaintiffs refer to several statutes concerning trusts, but none has applicability to the fund in question.

E.g., 25 U.S.C. § 160 (1976), (concerning stocks, bonds, and other securities held by the Secretary for certain Indians on June 10, 1876); 25 U.S.C. § 161 (1976) (Secretary authorized to deposit into the Treasury certain funds held by him as trustee on April 1, 1880); 31 U.S.C. § 547a (1976) (investment procedure for trust funds). Id. at 1336. The Whiskers court reviewed language from § 20 of the Permanent Appropriation Repeal Act of 1934 (PAR Act), ch. 756, § 20, 48 Stat. 1224, 1233 (codified as amended at 31 U.S.C. § 1321 (2000)).

The Whiskers court noted that “[plaintiffs place substantial reliance on 31 U.S.C. § 725s(a)(20) (1976), contending it declares that the judgment fund, while held in the Treasury pending distribution, was held in trust.” Whiskers, 600 F.2d at 1336 (footnote omitted). The court observed that “at first blush” the

section appeared to support the plaintiffs’ argument, but found that “our independent research leads us to conclude that the

section does not have the sweeping meaning that a simple reading of it might indicate.” Id. The Whiskers court based its conclusion on an analysis of the specific trust fund listed in 31 U.S.C. § 1321(a)(20) entitled “Indian moneys, proceeds of labor, agencies, schools, and so forth.” Id. at 1336-37.

With a focus on 31 U.S.C. § 1321(a)(20), the court reviewed the legislative history of the PAR Act and, relying on statements by the Chief Finance Officer of the Indian Service regarding the general sources of funds for the “Indian moneys, proceeds of labor” (IMPL) trust fund accounts, concluded that judgment funds such as that constituted in the Southern Pauite settlement were not included under the IMPL trust fund category: It is clear that this provision dealt only with a narrow range of “Indian moneys,” and not with all funds that might be so described.

It is equally clear that funds appropriated in settlement of claims brought before the Indian Claims Commission are not within that narrow range. It follows that this

section provides no basis for concluding that the judgment proceeds were held in trust at the time they were distributed by the Secretary. Whiskers, 600 F.2d at 1336-37. The court does not disagree with the specific finding of the Court of Appeals for the Tenth Circuit that judgment funds appropriated in settlement of claims brought before the Indian Claims Commission are not included within 31 U.S.C. § 1321(a)(20).

The fact that judgment funds such as the ones created by the appropriation for the Southern Paiute Nation settlement and the Pembi-na Awards do not appear to have been classified under the “Indian moneys, proceeds of labor” designation, however, does not end the inquiry. There are ninety-one different subsections of § 1321(a), almost all of which appear to include multiple individual fund accounts. See 31 U.S.C. § 1321(a)(l)(91). 3.

Notwithstanding Whiskers, the Permanent Appropriation Repeal Act of 1934 Classifies the Pembina Awards as Trust Funds The court finds that judgment funds, even if not included within 31 U.S.C. § 1321(a)(20) as determined by the Whiskers court, are in fact included in 31 U.S.C. § 1321(a)(67) under the designation “Miscellaneous trust funds of Indian tribes.” See 31 U.S.C. § 1321(a)(67) (2000). Both the structure of the PAR Act and its legislative history make it clear that Congress viewed judgment funds such as the Pembina Awards to be and, historically, to have been, trust funds belonging to the tribes.

See Cheyenne-Arapaho Tribes, 512 F.2d at 1392 (“It is clear from past opinions of this court and of the Supreme Court, and from the actions of both Congress and the Executive Branch, that funds appropriated to Indians to satisfy judgments of the Indian Claims Commission or of this court ... are, when kept in the Treasury, held in trust for the Indians.”); see also Loudner, 108 F.3d at 900-01 (noting the presumption of trust status for Indian moneys held by the government and finding that because “the government points to no statutory language relieving it of these long-established obligations ... we must judge its conduct ‘by the most exacting fiduciary standards’ ”) (quoting Seminole Nation v.

United States, 316 U.S. 286, 297, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942)); Rogers, 697 F.2d at 890 (noting that “for a century and a half, the Supreme Court has characterized the relation of the United States to the Indian nations as a unique trust obligation” and that “there is a presumption that absent explicit language to the contrary, all funds held by the United States for Indian tribes are held in trust”) (citing Moose, 674 F.2d at 1281).

Section 1321(b)(1) provides the explicit recognition of the trust character of funds enumerated under § 1321(

a) and states, in pertinent part: Amounts ... that are analogous to the funds named in subsection (

a) of this

section and are received by the United States Government as trustee shall be deposited in an appropriate trust fund account in the Treasury. Except as provided in paragraph (2), amounts accruing to these funds are appropriated to be disbursed in compliance with the terms of the trust. 31 U.S.C. § 1321(b)(1). The funds listed under this

section are declared by Congress to be trust funds and amounts accruing to these funds are defined by the statute as “appropriated,” thereby eliminating the need for separate annual appropriations prior to disbursement. The provision that trust funds are “to be disbursed in compliance with the terms of the trust” addresses concerns that executive agencies had expressed regarding the availability of deposited moneys to fulfill trust purposes. See, e.g., S.Rep.

No. 73-1195, at 27 (1934) (Letter of Harold Ickes, Secretary of the Interior) (“I have no objections to the provisions of H.R. 9410 provided deficiencies will be permitted to pay interest on Indian trust funds and individual payments to Sioux Indians ... and collections from water users are- appropriated for use rather than used to increase the general fund of the Treasury.”). The terms of the PAR Act therefore recognized and carried out the fiduciary responsibilities of the government toward funds it held in trust, while also reforming the appropriations system for moneys belonging to the government.

These distinct functions of the PAR Act were expressly delineated in the classification of receipts described by the House Subcommittee on Appropriations in developing the legislation that became the PAR Act: The immediate problem confronting the committee in resolving its judgment on the various items of appropriation upon which hearings were conducted was largely one of classification.

As a primary thesis there are, essentially, but two forms of government receipts, (1) those accruing to the Government, in its sovereign capacity, as a result of law, and (2) those accruing to the Government as a trustee of moneys belonging to individuals, either in consequence of law or as a result of the factual relationship existing between the Government and such individuals. Thus, in the instance of the former, the moneys belong to the Government; in the ease of the latter, they belong to the individual.

To further classify or subclassify such receipts, in the mind of the committee, can but serve to confuse the issue and to make extremely difficult of comprehension a subject that otherwise is easily understandable. H.R.Rep. No. 73-1414, at 3. A clear distinction between funds owned by the government and funds held by the government in trust for their rightful owners was reflected in the structure of H.R. 9410 and adopted with the enactment of the PAR Act.

While attending to what Congress saw as its constitutional duty to appropriate moneys held by the Treasury, the framers of H.R. 9410 provided a flexible mechanism in § 20 of the PAR Act for safeguarding the trust character of those funds then held in trust by government as well as funds thereafter to be so held.

The House Report further described the drafting process of collecting in one place (that is, in § 20 of the PAR Act) a list of “all funds of a trust nature.” Once moneys are covered into the Treasury, regardless of the nomenclature that may be applied to the account in which they are deposited, they are bound by the constitutional inhibition that “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” ... In keeping with this thought, the committee applied itself to the task of listing in subsection (

b) of this section, all funds of a trust nature appearing on the books of the Government. It is quite possible that some accounts that should have been included in the list have been inadvertently omitted. If so, it will not be a difficult matter for the particular department, bureau, or official, administering such an account, if of a character anal[o]gous to those named in this section, to have it established as a trust fund for which appropriation is made by the terms of this act. H.R.Rep. No. 73-1414, at 12. “All funds of a trust nature” were included under § 20 of the PAR Act and this

section was to remain open for the inclusion of future funds “of a character analog[o]us to those named in this section.” Id. Congress justified its decision to embed a

section recognizing a large group of permanent appropriations in legislation whose stated purpose was to repeal “such portions of any Acts as provide permanent or continuing appropriations from the general fund of the Treasury,” PAR Act pmbl., at 1224, on the basis of the trust character of the funds in question. The House Report made two points: first, Congress intended that all current trust funds, and future funds of similar character, were to be included under the provisions of § 20. H.R.Rep. No. 73-1414, at 12. Second, despite the determination of Congress to repeal all permanent appropriations, see 78 Cong.

Ree. at 8241-43, the accounts in § 20 are allowed to retain their character as permanent because the trust funds concerned are not Government money, H.R.Rep. No. 73-1414, at 12. The House Report states: In order to close the question as to the right of the Comptroller General to approve withdrawals of trust-fund moneys without actual appropriation thereof of Congress, language has been inserted in this

section appropriating the moneys in the trust funds listed in this

section as well as in trust funds of similar character established in the future. While this is in fact a permanent appropriation in itself, it appears to be the most effective way of meeting the problem, and is entirely justifiable on the ground that the moneys are not Government moneys, and in no way enter into the fiscal program of the Government, and follows the policy heretofore employed as to all trust funds. Id.

Congress therefore considered trust funds “appropriated” at the time of deposit and directed that such funds were to be disbursed according to the terms of each trust. 31 U.S.C. § 1321(b)(1) (“amounts accruing to these funds are appropriated to be disbursed in compliance with the terms of the trust”).

Funds carried in accounts referenced in 31 U.S.C. § 1321(a)(67) as “Miscellaneous trust funds of Indian tribes” were described by the Secretary of the Interior as “aecru[ing] mainly from sales of surplus tribal Indian lands and timber; oil and gas royalties, including bonus on leases, etc____” Hearing on H.R. 9410 Before the Subcomm. on Permanent Appropriations of the House Comm. on Appropriations, 73d Cong., 2d Sess., at 267 (1934) (letter from Harold L. Ickes, Sec’y of the Interior) (H.R. 9410 Hearing). The Chief Finance Officer of the Indian Service, Samuel M.

Dodd, Jr., elaborated on this description in response to a question from Representative Glover Cary, member of the House Subcommittee on Permanent Appropriations, regarding the deposit into this trust fund of revenues generated from the sale of tribal lands: Mr. Dodd. That represents principally the areas that we call “ceded areas” on the reservations, where the land is sold under reservations of the General Land Office, but the money is deposited to the credit of the tribe.

There is one other source of revenue that would increase the amount of some of these tribal funds, and that comes from judgments rendered by the Court of Claims. These tribes feel that they have not obtained all that was due them, perhaps, for some land that had been withdrawn, for which they were compensated at the rate of $1.25 per acre. Or they find that some tribal provisions have not been complied with, and they seek a jurisdictional bill from Congress, and the Court of Claims hears the case and makes an award.

There was a ease a couple of years ago where something more than $2,000,000 was awarded to the Fort Berthold Indians. Congress, by direct appropriation, took care of the claims of the Utes in Utah. Mr. Cary. How is this per capita arrived at? Is that a distribution from the proceeds of the tribe’s income, distributed per capita among the members of the tribe? Mr. Dodd. Yes, sir. In some cases it is based on an old roll____In other cases, it provides for the distribution to the Indians living on certain dates. We get authorizations through Congress to make per capita payments.

H.R 9410 Hearing, at 270 (emphasis added). Chief Finance Officer Dodd specifically included funds awarded in judgments rendered by the Court of Claims in his explanation of “trust funds” under this subsection. He also included funds allocated for per capita distribution-as are the Pembina Awards in the present case-under this account heading as funds belonging to the Indian tribes and held in trust by government. In the excerpt of the hearing quoted above, Mr. Dodd refers to an award to the Fort Berthold Indians.

The case referred to is Indians of the Fort Berthold Indian Reservation in the State of North Dakota v. United States, 71 Ct.Cl. 308, 1930 WL 2473 (1930) , and, as Mr. Dodd indicated, involves a judgment fund classified under 31 U.S.C. § 1321(a)(67), “Miscellaneous trust funds of Indian tribes.” The statute appropriating the funds awarded by the Court of Claims provided for the withdrawal of funds from the Treasury and called for a pro rata distribution to all eligible members of the plaintiff tribes, “under such rules and regulations that [the Secretary of the Interior] may prescribe ....” S.J.

Res. 226, 71st Cong., 46 Stat. 1481 (1931) . Neither the decision of the court in the Fort Berthold case nor the Joint Resolution authorizing the appropriation and distribution of the judgment funds, S.J. Res. 226, characterized the resulting award as a “trust fund” or as funds “held in trust” by the government. Nevertheless, the understanding of the government, as explained to Congress by the Chief Finance Officer of the Indian Service, was that judgment funds were classified as trust funds. H.R. 9410 Hearing, at 270. It is this understanding that was enacted in the Permanent Appropriations Repeal Act of 1934.

From the foregoing, the court concludes that funds such as the Pembina Awards appropriated to satisfy judgments of the Court of Claims and deposited in the Treasury to the credit of Indian tribes are “trust funds” under the provisions of 31 U.S.C. § 1821(a)(67). 4. Classification by Treasury of the Pem-bina Awards as Trust Accounts The conclusion that the Pembina Awards were held in trust is further supported by the classification system employed by the Treasury to account for trust and other moneys received by the United States government.

Under the Treasury classification system, all appropriated moneys and funds collected by the various departments of government are assigned account numbers that indicate the class of receipt or appropriation. This system is more particularly described in a 1946 Court of Claims opinion addressing a Department of Agriculture trust fund established under § 20 of the PAR Act in a trust account titled “Miscellaneous Contributed Funds, Department of Agriculture.” See King v. United States, 107 Ct.Cl. 223, 234-37, 68 F.Supp. 206 (1946).

The opinion describes the various types of Treasury funds designated by certain “master symbols.” Id. at 235, 68 F.Supp. 206. In particular, “[m]aster symbols 7000 to 9999 designate ‘Trust Funds’ ....” Id. Pursuant to the provisions of the Budget and Accounting Act, the General Accounting Office prepared and promulgated a general system for designating accounts by symbol numbers____ All Departments of the Government are required to account for all appropriated monies and collections coming into their custody in accordance with the terms of these regulations.

Under [this] system ..., the master symbols from 0001 to 5999 designate what it termed “General Funds” of the United States ____ Master symbols 6000 to 6999 designate “Special Funds,” which are prescribed for the particular type of disbursement designated by Congress at the time legislation is passed authorizing the collection of funds for such purpose, but not under a trust arrangement.

Master symbols 7000 to 9999 designate “Trust Funds,” which represent moneys received by the United States for the purposes specified in and for disbursement in accordance with the terms of the arrangements under which they are accepted. King, 107 Ct.Cl. at 234-35. Treasury assigned account nos. 14x9012 and 14x9512 to the funds deposited from the 1964 Award. With respect to the two appropriations for the 1980 Award, Treasury assigned account nos. 14x9244, 14x9744, and 14x9172, 14x9672, respectively.

The numerical code “14” identifies the Department of the Interior, while the letter “x” denotes that the appropriation is ongoing and without a fiscal year limitation under the authority of the PAR Act. King, 107 Ct.Cl. at 236. A graphic presentation of the structure of the accounts established for the Pembina Awards is provided in a chart contained in Exhibits to Defendant’s Opposition to Plaintiffs’ Renewed Motion for Class Certification, Ex. 5 at 12A.

In the chart, defendant records the account numbers for the three appropriations constituting the Pembina Awards and the account numbers of the five accounts established for the beneficiary tribes and the group of lineal descendants under the 1982 Distribution Act. Id. All of the account numbers are in the 7000 to 9999 range reserved for trust fund accounts. Id. This evidence further supports the court’s view that the Pembina Awards held by the Treasury are held as trust funds. 5.

The 1982 Distribution Act Does Not Negate the Trust Character of the Pembina Awards Defendant argues that two provisions in the 1982 Distribution Act that include trust language are evidence that the Pembina Awards were not held in trust between the time appropriated and the time of distribution. Def.’s Cross-MSJ Reply at 12 (“If Congress was acting under the presumption that the [Pembina Judgment Fund (PJF)] monies automatically became funds held ‘in trust,’ ... all of the language specifically designating the Tribal program funds as monies held in trust would be superfluous.”).

The first provision, repeated in almost identical language for each tribe or band in § 3 though § 6 of the 1982 Distribution Act, provides for the distribution of 80% of the 1980 award on a per capita basis and the remaining 20% to a tribal trust fund:

(1) Eighty per centum of such funds shall be distributed in the form of per capita payments (in sums as equal as possible) to all enrolled members of the Turtle Mountain Band of Chippewa Indians who are living on the date of the enactment of this Act.

(2) Twenty per centum of such funds shall be held in trust and invested by the Secretary for the benefit of the members of the Turtle Mountain Band of Chippewa Indians. The governing body of such band is authorized to use the interest and investment income accrued on such 20 per centum p[or]tion, on an annual budgetary basis subject to the approval of the Secretary, for .... 1982 Distribution Act § 3 (emphasis added). The second provision cited by defendant, see Def.’s Cross-MSJ Mem. at 14 n. 9, is from § 8 of the 1982 Distribution Act and provides for the treatment of any per capita share payable to an incompetent or a minor: (

c) Any per capita share of funds to which a legally incompetent individual or an individual under eighteen years of age is entitled under this Act shall be paid in accordance with such procedures (including an establishment of trusts) as the Secretary determines to be necessary to protect and preserve the interests of such individual. Id. § 8 (emphasis added). The court does not find that the foregoing provisions negate the existence of a trust from the date of appropriation of the Pembi-na Awards until distribution.

The court believes that a more natural reading of the 1982 Distribution Act begins with a review of its stated purpose, namely, “to provide for the use and distribution of funds awarded the Pembina Chippewa Indians.” 1982 Distribution Act pmbl. The beneficiary tribes chose to retain 20% of each tribe’s portion of the 1980 Award for social and economic programming, tribal administration, or other purposes as determined by the governing body of the tribe. 1982 Distribution Act § 3.

The retained funds did not go directly to the tribes but remained in the Treasury and could be accessed only through annual plans submitted by the governing body of the tribe or band and approved by the Secretary of the Interior. Id. §§ 3(2), 4(2), 5(2), 6(2). While the funds distributed to individual beneficiaries lost their trust status upon distribution, the 20% of funds remaining in the Treasury for annual programming did not lose their trust character but continued to be “held in trust and invested by the Secretary” for the tribe’s benefit. The reference in § 8(

c) of the 1982 Distribution Act to the establishment of trusts for minors or other legally incompetent beneficiaries “as the Secretary determines to be necessary” for their protection, merely authorizes the possible creation-separate from the the tribal trust fund in which the 20% retained portion of the 1980 Award would be held-of individual trust accounts which could be used to protect and make productive the per capita share of a minor or otherwise incompetent beneficiary. The provisions are forward-looking.

The court does not perceive how the trust provisions of the 1982 Distribution Act could negate the existence of trust obligations prior to the date of distribution. Not only does the language of the 1982 Distribution Act not support defendant’s view that the Pembina Awards were not held in trust prior to distribution, but language in both distribution acts clearly contemplates that the funds appropriated for both the 1964 Award and the 1980 Award would have earned interest, as would be the case if the Pembina Awards were trust funds.

The 1971 Distribution Act for the 1964 Award provided for the distribution of the appropriated funds, “together with the interest thereon,” after payment of expenses including those attendant to carrying out the distribution plan, attorney fees, and litigation expenses. See 25 U.S.C. § 1241.

The funds appropriated by the Act of June 9, 1964 (78 Stat. 204, 213), to pay a judgment to the Pembina Band of Chippewa Indians in Indian Claims Commission dockets numbered 18-A, 113, and 191, together with the interest thereon, after payment of attorney fees and litigation expenses, and such expenses as may be necessary in carrying out the provisions of this Act, shall be distributed as provided therein. 1971 Distribution Act, 25 U.S.C. § 1241 (emphasis added).

This provision distinguishes the total fund — the funds appropriated plus “the interest thereon” — from expenditures to be deducted prior to the distribution, namely, attorney fees, litigation costs, and the costs of implementing the distribution plan.

In the 1982 Distribution Act, Congress was even more explicit in its contemplation that the distribution of the 1980 Award would encompass income earned from the productive investment of the 1980 Award: “All of the funds appropriated with respect to the judgment awarded the Pembina Chippewa Indians in dockets 113, 191, 221, and 246 (less attorney fees and litigation expenses), including all interest and investment income accrued, shall be divided by the Secretary of the Interior____” 1982 Distribution Act § 2 (emphasis added).

As with the words “together with the interest thereon m the 1971 Distribution Act, the directive to include “all interest and investment income accrued” in the 1982 Distribution Act cannot be ignored as surplusage without negating the intent of Congress in making such an express provision. United States v. Me-nasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (“It is our duty ‘to give effect if possible, to every clause and word of a statute ....’”); 2A Norman J.

Singer, [Sutherland] Statutes and Statutory Construction § 46:06, at 181-90 (6th ed. 2000) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant____”). The court sees nothing in the provisions of the 1982 Distribution Act which is inconsistent with either the language of 31 U.S.C. § 1321 or the government’s classification of the Treasury accounts created to receive the Pembina Awards.

Both 31 U.S.C. § 1321 and the government’s treatment of the Pem-bina Awards make it clear that the Pembina Awards were held as trust funds. 6. Office of Management and Budget

Interpretation of the Government’s Trust Obligations With Respect to Indian Trust Funds The fiduciary nature of the government’s obligations with respect to Indian trust funds was recognized by the Office of Management and Budget (OMB) in a 1997 Notice of

Interpretation (Interpretation) regarding the reporting of information on Indian trust funds in the financial reports of the Department of the Interior. See

Interpretation Numbers 1 and 2 Related to Statement of Federal Financial Accounting Standards Numbers 4, 5, and 7, 62 Fed.Reg. 11505 (March 12, 1997). The

Interpretation notes that “[i]n customary-usage, the term ‘trust fund’ refers to money belonging to one party and held ‘in trust’ by another party operating as a fiduciary.” 62 Fed.Reg. at 11506, ¶ 6 (quoting Statement of Federal Financial Accounting Concepts (SFFAC) No. 2). OMB adopted the SFFAC finding that Indian funds held by the Department of Interior are “true” trust funds in the customary sense: Indian trust funds are “true” trust funds in the customary sense, in which there is a legal fiduciary relationship between the Federal Government as trustee and the Indians as trustor.

The Federal Government does not own the assets of the funds. In some cases, the Federal Government’s trustee relationship is with individuals, in other cases with tribes. For many of the funds involved, a tribe or individual can use the funds or dissolve the trust at any time; however, there is a restriction on the use of funds that have been received through legal judgments. Those funds generally are not available until the beneficiaries agree how the funds are to be distributed among them. 62 Fed.Reg. at 11506, ¶ 7 (emphasis added). The

Interpretation was the product of an agreement among the General Accounting Office, the Department of the Treasury, and the Office of Management and Budget in the Executive Office of the President. Id. at 11505. Once adopted by OMB, it was “published in the Federal Register and distributed throughout the Federal Government.” Id.

The “legal fiduciary relationship” applies to all Indian trust funds, but the Indian beneficiaries are particularly reliant on the good faith and prudent performance of the fiduciary in the case of trust funds arising from legal judgments because of constraints on the availability and use of judgment funds. See id. at 11506, U 7. 7.

Conclusion Both the intent of Congress expressed in 31 U.S.C. § 1321 and long executive branch practice support the conclusion that “funds appropriated to Indians to satisfy judgments of the Indian Claims Commission or of this court ... are, when kept in the Treasury, held in trust for the Indians.” Cheyenne-Arapaho Tribes, 512 F.2d at 1392. C. The Statutory Duty to Invest Trust Funds Plaintiffs argue that the government failed to execute properly its fiduciary duties in the management of the Pembina Awards from the time the funds were appropriated through the time the funds were distributed and thereafter.

See Pls.’ 2d Am. Compl. at 22-23. Specifically, plaintiffs allege that defendant as trustee (1) failed to invest the Pembina Awards in a timely manner, id. at 23, 1167, and (2) failed to invest the Pembina Awards so as to attain the maximum investment returns possible, id. 1168. Plaintiffs claim that the government breached its trust obligations under the general investment statutes applied to trust funds, including 25 U.S.C. §§ 161, 161a and 162a, and that the damages plaintiffs have suffered due to the alleged breaches of fiduciary duties are compensable. See Pis.’ Inv. MSJ Mem. at 21-25.

The statutes that govern the investment of funds held in trust by the government also “define the contours of the United States’ fiduciary responsibilities.” Mitchell II, 463 U.S. at 224, 103 S.Ct. 2961; see also Pawnee v. United States, 830 F.2d 187, 192 (Fed.Cir. 1987) (finding that “the fiduciary relationship springs from the statutes and regulations which ‘define the contours of the United States’ fiduciary responsibilities’”) (quoting Mitchell II, 463 U.S. at 224, 103 S.Ct. 2961).

The investment statutes of most importance to plaintiffs’ claims, 25 U.S.C. §§ 161a and 162a, represent two. generally distinct paths in legislation governing the treatment of Indian trust funds, one involving funds maintained by the trustee in Treasury accounts and the other concerning trust funds removed from the Treasury and placed by the trustee in other investments. 1. Trust Funds Held in Treasury Accounts Prior to 1880, the treatment of tribal funds held by the government was inconsistent, depending largely on treaty provisions and tribe-specific statutes. See Pis.’ Inv. MSJ Mem. at 22.

With the passage of the Act of April 1, 1880, 21 Stat. 70 (codified at 25 U.S.C. § 161 (2000)), Congress authorized the deposit of trust funds into Treasury accounts and provided for the payment of interest on the deposits: The Secretary of the Interior is authorized to deposit, in the Treasury of the United States, any and all sums held by him on April 1, 1880, or which may be received by him, as Secretary of the Interi- or and trustee of various Indian tribes, ... whenever he is of the opinion that the best interests of the Indians will be promoted by such deposits, in lieu of investments; and the United States shall pay interest semiannually, from the date of deposit of any and all such sums in the United States Treasury, at the rate per annum stipulated by treaties or prescribed by law, and such payments shall be made in the usual manner, as each may become due, without further appropriation by Congress. 25 U.S.C. § 161 (emphasis added).

This statute makes two points of particular importance to an understanding of the intent of Congress in regard to Indian trust funds. First, the Secretary of the Interior, acting as trustee of the tribes, was to act in “the best interests of the Indians” in his management of Indian moneys. Second, Congress intended that trust funds increase in value while under the government’s care — either through investment in government bonds or securities or by placement in interest-bearing Treasury accounts.

See 25 U.S.C. § 161 (“The Secretary of the Interior is authorized to deposit, in the Treasury of the United States, any and all sums held by him ... as ... trustee of various Indian tribes ... whenever he is of the opinion that the best interests of the Indians will be promoted by such deposits, in lieu of investments ____”). However, Congress had not at that time provided a statutory rate of interest to apply to trust funds in cases where a rate of interest was not stipulated in the relevant treaty or appropriation act.

The failure to provide a statutory rate of interest in 25 U.S.C. § 161 led to discrepancies in productivity among Indian funds held in trust in the Treasury.

This discrepancy was rectified by Congress by enactment of the Act of February 12, 1929, ch. 178, § 1, 45 Stat. 1164 (codified as amended at 25 U.S.C. § 161a (1982)), which provided that if no interest rate is specified, all Indian trust funds greater than $500 would be invested at an annual interest rate of 4 percent: All funds with account balances exceeding $500 held in trust by the United States and carried in principal accounts on the books of the Treasury Department to the credit of Indian tribes, upon which interest is not otherwise authorized by law, shall bear simple interest at the rate of 4 per centum per annum. 25 U.S.C. § 161a (1982) (emphasis added).

The express language used by Congress makes the determining factors for applying the interest provision of § 161a whether the funds are “held in trust by the United States” and whether the funds are held “to the credit of Indian tribes.” See Def.’s Cross-MSJ Reply at 10 (emphasizing the importance of the language used in § 161a prior to the 1984 amendment). The accounts established for the Pembina Awards are all classified in the 7000-9999 series reserved by Treasury for trust fund accounts. See King, 107 Ct.Cl. at 235, 68 F.Supp. 206.

After the enactment of 25 U.S.C. § 161a, interest was paid on all Indian trust funds greater than $500 held by the government in the Treasury.

In 1984, the wording of § 161a was amended to provide greater flexibility to the government as trustee to invest Indian trust funds-with the apparent intent that the funds would receive rates of return comparable to those available on the market for government-backed securities: [A]ll funds held in trust by the United States and carried in principal accounts on the books' of the United States Treasury to the credit of Indian tribes shall be invested by the Secretary of the Treasury, at the request of the Secretary of the Interior, in public debt securities with maturities suitable to the needs of the fund involved, as determined by the Secretary of the Interi- or, and bearing interest at rates determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities.

Act of October 4,1984, Pub.L. No. 98-451, 98 Stat. 1729 (codified as amended at 25 U.S.C. § 161a(a) (2000)) (emphasis added). The purpose of the amendment to § 161a was “to provide authority for the payment of a variable rate of interest on Indian tribal trust funds.” H.R.Rep. No. 98-988, at 1 (1984), U.S.Code Cong. & Admin.News 1984, p. 2905. The House Report indicates that interest rates for government securities at the time were around 9)6 percent compared with the 4 percent rate set out in the 1929 act. See id. at 2. As noted in the House Report, “The average amount of funds subject to

section 161a is about $8,000,000. At the 4 percent rate, that amount earns approximately $320,000. At a more current rate of 9)6 percent, it would earn $760,000.” Id. The House Report included a communication from the Department of the Interior that explained Interior’s support for the legislation in the following terms: “In order for the federal government to better fulfill its trust responsibility to the Indian people and to make the return on all trust funds more equitable in today’s economic climate, Indian trust funds should be provided a more flexible rate of interest.

The draft bill would accomplish this ____” Id. at 4 (letter from Kenneth Smith, Assistant Sec’y, Indian Affairs) (emphasis added). 2. Trust Funds Invested in Other Than Treasury Accounts The 1880 legislation authorizing the deposit of Indian trust funds into interest-earning Treasury accounts was in part a response to defaults on securities in which trust funds had been invested by the Secretary of the Interior in other than Treasury accounts, as well as declining interest rates in the market. See Cheyenne-Arapaho Tribes, 512 F.2d at 1393.

Prior to that time, “tribal funds, rather than being deposited in the Treasury, were required by law to be invested, usually at a minimum rate of return of 5%.” Id. at 1393 (citations omitted). Congress returned to the issue of the active management of Indian investment funds in 1918 with legislation that authorized the Secretary of the Interior to take Indian funds from the Treasury and invest them in banks offering the same or a higher rate than Treasury was required to pay: The ...

Secretary is also authorized ... to withdraw from the Treasury and deposit in banks ... such common, or community, trust funds ... on which the United States is not obligated by law to pay interest at higher rates than can be procured from the banks: Provided, That no tribal or individual Indian money shall be deposited in any bank until the bank shall have agreed to pay interest thereon at a reasonable rate and shall have furnished an acceptable bond or collateral security therefor, and United States bonds may be furnished as collateral security for either tribal or individual funds so deposited, in lieu of surety bonds.

Act of May 25, 1918, ch. 86, § 27, 40 Stat. 561, 591 (codified as amended at 25 U.S.C. § 162 (1984)). This statute was repealed in 1938 and replaced with provisions that granted authority to the Secretary of the Interior to invest trust funds in banks that offered higher rates than those paid by the Treasury. See Act of June 24, 1938, eh. 648, 52 Stat. 1037 (codified as amended at 25 U.S.C. 162a(a) (2000)).

The new statute greatly expanded the investment options available for Indian trust funds by including bonds, notes and other obligations offered by public or private institutions, while insuring the security of the funds. See id.

Section 162(a)(

a) provides in pertinent part that the Secretary of the Interior, if he deems it advisable and for the best interest of the Indians, may invest the trust funds of any tribe or individual Indian in any public-debt obligations of the United States and in any bonds, notes, or other obligations which are unconditionally guaranteed as to both interest and principal by the United States. Id. (emphasis added).

Congress expressed its intent that investments should be made “for the best interest of the Indians” and insured the security of the investments by restricting them to those unconditionally backed by the United States. During its deliberations over the legislation leading to the 1984 revision of 25 U.S.C. § 161a, Congress expressed its view that investment under § 162a was the preferred method for insuring the productivity of trust funds when market conditions allowed rates of return superior to the mandatory floor interest rate of 4% then provided by the Treasury under § 161a. See H.R.Rep. No. 98-988, at 1-2.

The House Report explains that holding trust funds in the Treasury was meant to be an interim measure: Under normal circumstances, Indian trust funds are invested under authority of 25 U.S.C. § 162a. This authority permits the Secretary of the Interior to invest such funds, at market rates, either in obligations of federally insured banks or through direct purchase of U.S. securities. 25 U.S.C. § 161a is stop-gap authority, permitting the payment of interest on such funds in the U.S. Treasury prior to investment under 25 U.S.C. § 162a or during float periods. Id. at 1-2.

While acknowledging that the preferred investment vehicle for trust funds was 25 U.S.C. § 162a, Congress also revised § 161a to make trust funds held in the Treasury more productive during the interim periods when not invested under the authority of § 162a. As the Congressional Budget Office noted in its report on the legislation that revised § 161a, “[e]nactment of this bill would require the Secretary of the Treasury to pay a higher interest rate than the 4 percent now required for funds the Treasury holds in trust for some Indian tribes.” H.R.Rep. No. 98-988, at 3, U.S.Code Cong. & Admin.News 1984, p. 2907.

The history of investment-related legislation indicates a congressional commitment to increasing the productivity of Indian funds held in trust by the government.

For trust funds held in Treasury accounts, Congress began by authorizing the deposit of trust funds in interest-bearing Treasury accounts (the 1880 enactment of 25 U.S.C. § 161 allowing interest to be paid on Treasury deposits), then mandated that all Indian trust funds held in Treasury accounts receive a floor interest rate of 4% unless otherwise provided by treaty or statute (the 1929 passage of § 161a making the payment of interest mandatory), and finally provided for variable interest rates that reflected current market yields for Indian trust funds held in Treasury accounts (the 1984 revision of § 161a(

a) providing for the payment of variable interest rates on trust funds). Prior to 1880, Congress had also provided for the placement of trust funds in investments other than interest-bearing Treasury accounts that allowed the funds to attract more favorable market rates, but the risks involved led to the enactment of 25 U.S.C. § 161.

Yet the importance of seeking higher market-based yields prompted further legislation (the 1918 enactment of 25 U.S.C. § 162) that allowed for the investment of Indian trust funds outside of the Treasury in banks that offered adequate security, and even further legislation (the 1938 repeal of § 162 and replacement with § 162(a)) that permitted the use of “unconditionally guaranteed” investment vehicles including notes, bonds and other obligations. 3.

Investment of the Pembina Awards Plaintiffs argue that, since their enactment in 1974, the regulations implementing the Indian Tribal Judgment Funds Use or Distribution Act of 1973 (IJFDA), Pub.L. No. 93-134, 87 Stat. 466, “have required Judgment Funds to be invested under the more aggressive

Section 162a(a).” Pis.’ Inv. MSJ Mem. at 25. Plaintiffs contend that 25 C.F.R. § 60.11 (recodified at 25 C.F.R. § 87.11 in 1982), providing that judgment funds are to be invested under 25 U.S.C. § 162a “[i]n effect ... eliminates the discretion of the Interior Department under 25 U.S.C. § 161 to choose between investing judgment funds and depositing them with the U.S. Treasury.” Pis.’ Inv. MSJ Mem. at 27 (emphasis omitted).

The Department of Interior’s regulations governing the IJFDA provide that judgment funds are to be deposited “as soon as possible” after appropriation, that investment shall continue pending approval of a distribution plan or legislation, and that both the judgment funds and the income derived from their investment will continue to be invested while the funds are under the care of the government: As soon as possible after the appropriation of judgment funds and pending approval of a plan or the enactment of legislation authorizing the use or distribution of the funds, the Commissioner shall invest such funds pursuant to 25 U.S.C. [§ ] 162a.

Investments of judgment funds and of investment income therefrom will continue to be made by the Commissioner [of Indian Affairs] after the approval of apian or enactment of use or distribution legislation to the extent funds remain available for investment under such plan or legislation, and provided that thereafter investments of judgment funds made available for tribal use are not undertaken by the tribe pursuant to authorizing law.

Invested judgment funds, including investment income therefrom, shall be withdrawn from investment only as currently needed under approved plans or legislation authorizing the use or distribution of such funds. 25 C.F.R. § 87.11 (2005) (emphasis added). The provisions included in 25 C.F.R. § 87.11 are in line with the commitment expressed in prior legislation, regulations, and agency actions to render Indian trust funds productive through active investment while they are held in trust by the government.

Defendant argues that the 1964 Award and its distribution plan approved in 1971 are expressly excluded from the application of regulations implementing the IJFDA under 25 C.F.R. § 87.2. Def.’s Cross-MSJ Mem. at

Section 87.2 provides that “[t]he regulations in this part govern the preparation of proposed plans for the use and distribution ... of all judgment funds awarded from the date of the Act ... and of all funds deriving from judgments entered prior to the date of the Act for which there has been no enabling legislation.” 25 C.F.R. § 87.2 (2005). Because the 1971 Distribution Act predated the IJFDA, the court agrees with defendant that the plain language of this

section excludes the 1964 Award from the specific requirements of 25 C.F.R. § 87.11 and other regulations promulgated pursuant to the IJFDA. Therefore, the directive under § 87.11 that investment under 25 U.S.C. § 162a is to take place “as soon as possible after the appropriation of judgment funds and pending approval of a plan or the enactment of legislation authorizing the use or distribution of the funds” would not apply to the funds appropriated under the 1964 Award and for which distribution plans were approved in the 1971 Distribution Act.

However, this conclusion does not relieve defendant of the fiduciary duty of investing the 1964 Award in keeping with the terms of prevailing statutes, in this case 25 U.S.C. §§ 161a and 162a, including the latter’s instruction that investment decisions are to be made by “the Secretary of the Interior, if he deems it advisable and for the best interest of the Indians.” See 25 U.S.C. § 162a(a).

A failure to invest trust funds promptly upon receipt by the Treasury, or the placement of funds in accounts bearing interest rates well below those available from other properly secured investments, would be difficult to reconcile with the intent of Congress expressed in the 1938 enactment and subsequent amendments to § 162a cited above, or in § 161 enacted in 1880, authorizing the Secretary of the Interior “to deposit, in the Treasury of the United States, any and all sums held by him ... whenever he is of the opinion that the best interests of the Indians will be pr

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