12 Cl.Ct. 36
The UNITED STATES, Defendant,
The Hoopa Valley Tribe of Indians, Defendant-Intervenor.
Charlene ACKLEY, et al., Plaintiffs,
The UNITED STATES, Defendant,
The Hoopa Valley Tribe of Indians, Defendant-Intervenor.
Nos. 102-63, 460-78.
United States Claims Court.
March 17, 1987.
37 William C. Wunsch, San Francisco, Cal., and Clifford L. Duke, Jr. and
William K. Shearer, San Diego, Cal., for plaintiffs in the Short case.
Francis B. Mathews, Eureka, Cal., for plaintiffs in the Ackley case.
James E. Brookshire, Edward J. Passarelli and Pamela S. West, Washington,
D.C., with whom was Asst. Atty. Gen. F. Henry Habicht II, for defendant.
Thomas P. Schlosser, Seattle, Wash., for The Hoopa Valley Tribe of Indians.
On December 5, 1985, this court ruled from the bench on the measure of damages
to be awarded in this case, reserving the right to supplement its ruling with a
written opinion. The court subsequently requested briefing on whether monies
distributed *38 to individual Hoopa Indians after 1974 should be included in
the damages determination, and now concludes that the post-1974 distributions
did injure plaintiffs. To the extent this written opinion adds to or differs
from the December 5, 1985 bench ruling, that ruling is hereby superseded and
This case, filed in the United States Court of Claims on March 27, 1963, has
outlasted some 400 now deceased plaintiffs, the original trial judge, several
deceased attorneys, and even the court in which it originally was filed.
Presently at issue is the nature and extent of the damage award. The liability
of the defendant United States is established. Jessie Short, et al., v.
United States, 202 Ct.Cl. 870, 884, 486 F.2d 561, 568 (1973), cert. denied,
416 U.S. 961, 94 S.Ct. 1981, 40 L.Ed.2d 313 (1974) (Short I ). In 1981,
the court directed the trial judge to develop standards to determine which
plaintiffs were "Indians of the Reservation" entitled to recover. Jessie
Short, et al. v. United States, 228 Ct.Cl. 535, 550-51, 661 F.2d 150, 158-
59 (1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1738, 72 L.Ed.2d 153
(1982) (Short II ). In 1983, those standards were affirmed, Jessie
Short, et al. v. United States, 719 F.2d 1133, 1143 (Fed.Cir.1983), cert.
denied, 467 U.S. 1256, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984) (Short
III ), and the case-by-case qualification of the 3,800 individual plaintiffs,
under those standards, is currently underway.
In 1973, the Court of Claims determined that the Hoopa Valley Reservation
(Reservation) in northern California was a single unit and that income derived
from the unallotted lands on one portion of the Reservation known as the
"Square" could not be distributed only to Indians on the official roll of the
Hoopa Valley Tribe (Tribe). Fndgs. 188-89, Short I, 202 Ct.Cl. at 980-
81, 486 F.2d 561. The Hoopa Valley Tribe was organized as an entity in 1950
and its membership includes most of the ethnological Indian tribes and groups
who traditionally occupied the "Square." In Short I, the court held that
the plaintiffs, mostly Yurok Indians living on another portion of the
Reservation known as the "Extension" or "Addition," should have participated in
per capita distributions made by the Secretary of the Interior (Secretary).
All "Indians of the Reservation" were held entitled to receive payments, and
the discriminatory distributions of the proceeds of the timber sales (and other
Reservation income) constituted a breach of the government's fiduciary duties
with respect to the qualified plaintiffs. Short III, 719 F.2d at 1135.
Although this opinion deals primarily with the timber revenues, the principles
enunciated herein generally apply to the other Reservation income as well.
The Secretary first began to distribute proceeds derived from the unallotted
trust lands of the Square exclusively to Hoopa Valley Tribe members in 1955.
Monies, consisting of revenues and earned interest, were paid per capita to
individual Indians on the Tribe's official roll, and were also paid to the
Hoopa Valley Tribe (as a government) for the purpose of developing or
maintaining services for the Reservation. The plaintiffs did not receive any
per capita distributions, nor were any payments made to a Yurok tribal
government, as the Yuroks were not formally organized. To date, efforts to
organize a Yurok tribal government have been unsuccessful, largely because of
this case. See Short II, 228 Ct.Cl. at 540, 661 F.2d at 153.
Following the liability decision in Short I, the Bureau of Indian Affairs
restricted the distributions made to the Hoopa Valley Tribe to only thirty
percent (30%) of the unallotted Reservation income. The thirty percent figure
was selected because the number of Hoopa tribal members, when compared with the
number of Short plaintiffs in 1974, represented about 30% of the total
number of potential "Indians of the Reservation." Hoopa Valley Tribe v.
United States, 219 Ct.Cl. 492, 502-03, 596 F.2d 435, 440 (1979). However,
additional per capita payments were made to the plaintiffs' exclusion after
1974 when the Secretary released these funds to the Hoopa Valley Tribe.
*39 On six separate occasions commencing on August 6, 1974 and ending on
March 7, 1980, per capita payments amounting to some $5,293,975 were made to
individual Hoopa Indians on the official roll of the Hoopa Valley Tribe, with
the knowledge, acquiescence or cooperation of the Secretary. The remaining
seventy percent (70%) of the funds has been held in trust by the Secretary in
"Indian Monies, Proceeds of Labor" accounts (IMPL accounts), pending resolution
of this case. These accumulated monies, sometimes referred to as the Short
escrow fund, now total over $60,000,000 and remain in the United States
Treasury, accumulating interest pursuant to statute.
The plaintiffs seek a share of what the Hoopas received directly through per
capita payments and indirectly through monies paid to the Hoopa Valley Tribe as
a government. Under the plaintiffs' theory, the monies paid to the Tribe would
be prorated among the Tribe's membership, and each plaintiff would receive an
amount equal to one prorated share. Monies spent by the Tribe to preserve the
timber lands and other governmental services that benefited the entire
Reservation would be offset against the plaintiffs' award. The plaintiffs also
seek interest on the award and the balance of the escrow fund, arguing that
these accumulated monies represent their exclusive share of the Reservation
resources collected after 1974.
The defendant, United States, and the defendant-intervenor, Hoopa Valley Tribe
of Indians, insist that, as individuals, the plaintiffs have no rights to
monies distributed to the Tribe for communal purposes. Defendants argue that
the law of this case mandates that the award be based on what the plaintiffs
would have received had the Secretary not unfairly limited the class of
beneficiaries receiving per capita payments. Defendants further argue that
monies held by the Secretary in the escrow fund are communal or tribal in
nature, and this court lacks jurisdiction to award damages from this fund. The
government and the Tribe assert that plaintiffs, as individuals, have no rights
in communal revenues derived from unallotted lands until such revenues are
individualized through per capita payments.
In addition, the defendant argues that per capita distributions made after
1974 should not be included in the damage award. The government reasons that
since the Secretary retains control of the escrow fund and could decide to
distribute shares of the fund to the plaintiffs in the future, an award at this
time would be premature. With respect to interest, the defendant argues that
the government has not waived its sovereign immunity and that interest,
therefore, cannot be assessed. The defendant-intervenor disagrees with the
defendant in one respect. The Tribe argues that post-1974 per capita
distributions to its members did injure the plaintiffs, and they should now be
compensated for these post-1974 breaches of trust.
The court has considered the briefs filed by the parties regarding the post-
1974 distributions, reconsidered the extensive briefs filed on the issue of
damages generally, and reviewed the oral arguments presented.
 To the extent that prior opinions in this case specifically address the
issue of damages, those opinions emphasize the individual nature of the
plaintiffs' claims and indicate that recovery is limited to participation as
individuals in per capita distributions. As was stated by the U.S. Court of
[a]dopting the trial judge's opinion, ... [in 1973] we held that the Square and the Addition together constituted a single reservation, that all the Indians of that Reservation were entitled to share in all of its revenues that were distributed to individual Indians (including the timber revenues from the Square), and that the plaintiffs who were Indians of the Reservation were entitled to recover the monies the government withheld from them.
Short II, 228 Ct.Cl. at 538, 661 F.2d at 152 (emphasis added). Elsewhere the court stated, "[i]t follows . . . that individuals whom the Secretary arbitrarily excluded from per capita distributions have the *40 right to recover." Id. at 543, 661 F.2d at 155.
The Federal Circuit's affirmation of the trial judge's 1982 opinion
establishing the eligibility standards, and the prior Short I and Short
II opinions, clearly characterized the plaintiffs' claim as one for breaches of
trust based upon discriminatory distributions of unallotted Reservation
revenues. This lawsuit is a claim for money damages, not one to partition or
individualize the unallotted common lands and resources of the Reservation.
Unallotted lands, by their very definition, are not individual in nature, but
rather are held in common for Indian tribes, nations, bands, or communities.
Similarly, the revenues from unallotted lands are communal or tribal in nature
until they are individualized. Breaking up or allotting communal or tribal
resources to individual Indians was once federal policy; however, that policy
is now disfavored. See 25 U.S.C. s 461 (1982); Felix S. Cohen's Handbook
of Federal Indian Law, 136-144, 170-75 (R. Strickland ed. 1982).
The unique situation on the Hoopa Valley Reservation, where the only formally
organized tribal government includes only a fraction of the Indians for whom
the Reservation was established, required the approach taken by the Court of
Claims in its 1973 ruling and subsequent decisions. Faced with the unusual
situation of no organized Yurok tribal government with an existing tribal roll
to determine which plaintiffs were unjustly excluded, the court adopted
approximations of the Hoopa Valley Tribe's enrollment standards to identify
the "Indians of the Reservation" who the Secretary should have included in the
per capita distributions.
In discussing the eligibility standards, Trial Judge Schwartz, who wrote the
1973 liability opinion, concluded that:
[i]n the present circumstances of per capita distributions already made to
fewer than those entitled, it is therefore sensible and equitable to define the
group improperly deprived of payments by the same definitions as identified
those who received payments, less the factors wrongfully used to exclude the
claimants from the distributions.
Short v. United States, No. 102-63, slip. op. at 28 (Ct.Cl. March 31,
1982). The law of the case therefore mandates that the individual qualified
"Indians of the Reservation" be included in any per capita distributions made
in the years until final judgment, and for the years to come while the
situation on the Reservation remains the same. Short III, 719 F.2d at 1143.
It should be clearly understood that this court is not determining which
individuals are members of a "Yurok Tribe" through the qualification process.
The decision regarding tribal citizenship or membership is an essential
attribute of Indian self-government and rests with the Indian tribe or nation
concerned, not this court. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72
n. 32, 98 S.Ct. 1670, 1684 n. 32, 56 L.Ed.2d 106 (1978). Nor is this court
determining the extent of jurisdiction or the nature of rights that an
organized "Yurok Tribe" might have in the unallotted trust-status lands of the
Hoopa Valley Reservation. See Lillian Blake Puzz, et al. v. U.S. Department of
the Interior, No. C80-2908 TEH, slip op. at 14-15 (N.D.Cal. Oct. 2, 1984).
This action is one by individual Indians of the Hoopa Valley Reservation for a
breach of trust that will compensate them for monies they would have received
had the per capita distributions been made in a non-discriminatory manner.
As stated in the original liability opinion:
[s]uch of the plaintiffs as are found herein to be Indians of the reservation
will become entitled to share in the income from the entire reservation,
including the Square, equally with all other such Indians, including the
Indians of the Square.
Fndg. 189, Short I, 202 Ct.Cl. at 981, 486 F.2d 561. Therefore, a
qualified plaintiff holds individual rights as an Indian of the Reservation
equal to that of an enrolled Hoopa Valley Tribe member. Tribal or communal
assets that have not been individualized may not be awarded since plaintiffs
are suing as individuals under 28 U.S.C. s 1491 (1982).
*41 A. Per Capita Distributions Prior to 1974
Both the defendant and the defendant-intervenor concede that the qualified
Short plaintiffs are entitled to compensation for per capita distributions
made six years prior to the filing of suit on March 27, 1963. Qualified Ackley
plaintiffs may recover only for distributions made six years prior to the
filing of their suit on October 20, 1978. From March 27, 1957 to June 30,
1974, $23,811,963.75 in tribal or communal monies was distributed per capita to
the Tribe's individual members. However, the defendant and the defendant-
intervenor disagree with the plaintiffs on how that compensation should be
measured. The plaintiffs assert that they are entitled to receive what each
Hoopa Valley tribal member received through per capita payments on a dollar-
for-dollar basis. The defendants argue that the plaintiffs were damaged only
to the extent that they failed to receive the funds they would have received,
had the Secretary properly distributed the money.
The proper measure of damages to qualified plaintiffs will be the share they
would have received had the distributions been made in a non-discriminatory
manner. See Restatement (Second) of Trusts s 205 comment a (1959). Therefore,
each qualified plaintiff alive at a given date of distribution will receive a
share equal to the total amount of money distributed per capita (principal and
interest), divided by the total number of eligible "Indians of the Reservation"
who received, or should have received, a payment according to the formula as
total amount of money distributed per capita
Hoopas who received payments + qualified plaintiffs
The total money recovery for each qualified plaintiff will be the sum of the
amounts to which he or she is entitled for each per capita distribution, plus
interest from the date of distribution as discussed in section D of this
B. Per Capita Distributions After 1974
 The defendant's argument that per capita distributions made after 1974 did
not injure plaintiffs is without merit. The mere possibility that the
Secretary could award funds at some future date, equal to what individual
Hoopas received and plaintiffs should have received, does not affect this
court's present ability to grant relief. As determined in 1973, plaintiffs
were entitled to participate in per capita distributions from Reservation
proceeds. Fndgs. 188-89, Short I, 202 Cl.Ct. at 980-81, 486 F.2d
561. Per capita distributions were made before and after 1974, but the
plaintiffs were denied participation. Hence, they are entitled to recover.
It is also without consequence that the monies were first distributed by the
Secretary to the Hoopa Valley Tribe for subsequent distribution to the Tribe's
individual members. Where the Secretary's action or failure to act permits a
violation of his fiduciary obligations to occur, the United States is liable
for the damages sustained. United States v. Mitchell, 463 U.S. 206, 226-28,
103 S.Ct. 2961, 2972-73, 77 L.Ed.2d 580 (1983) (Mitchell II ). Per capita
distributions made after 1974 will be accounted for in the damage award in the
manner indicated above. The Secretary cannot avoid established trust
obligations to qualified plaintiffs by making discriminatory distributions to
individual Hoopas through the Hoopa Valley Tribe, when such distributions were
otherwise prohibited by the law of this case.
C. Distributions to the Tribe
The Secretary of the Interior, vested with certain discretionary powers over
the management of unallotted Indian resources, decides when and how
distributions of timber revenues from unallotted lands are to be made under
25 U.S.C. s 407 (1982). The Secretary's decision to provide necessary funds
from unallotted lands to a tribal government, rather than to individuals,
should be accorded some deference. These funds can be used to support tribal
sovereignty and permit organized and effective delivery of services to persons
living on reservation lands. There is nothing in the legislative and
administrative history of the Reservation to suggest that the Secretary lacks
the authority to support the development of tribal governments.
*42 The Reservation was established pursuant to the Act of April 8, 1864,
13 Stat. 39, which authorized the President to locate not more than four
Indian reservations in California, at least one of them to be in the northern
district of the state. Public notices were posted in 1864 and 1865 without
mention of any Indian tribe by name and without intimation of which tribes were
to occupy the Reservation. The same is true of President Grant's executive
order of 1876 that formally established the Reservation and its boundaries.
Short I, 202 Ct.Cl. at 876-78, 486 F.2d at 563. Since there were to be no
more than four reservations in the state, it was inevitable that each
reservation could and almost certainly would be occupied by more than one
ethnological tribal group.
The Addition or Hoopa Extension was added to the Reservation by order of
President Harrison in 1891. That executive order expanded the size of the
Hoopa Valley Reservation to include the "Old Klamath River Reservation" and the
connecting strip. Mattz v. Arnett, 412 U.S. 481, 493, 93 S.Ct. 2245, 2252,
37 L.Ed.2d 92 (1973); Fndg. 9, Short I, 202 Ct.Cl. at 887, 486 F.2d 561.
Plaintiffs argue that this joinder, which gave rise to the substantive rights
in the unallotted Reservation resources distributed per capita, also entitles
them to receive a share of monies appropriated to the Hoopa Valley Tribe.
[3, 4] Plaintiffs, like non-Indians within Indian country, do benefit from the
presence of an organized tribal government and also benefit from general
federal services administered by the Tribe that are not premised upon Hoopa
membership. See 18 U.S.C. s 1151 (1982) (definition of Indian country). To
be sure, plaintiffs arguably were not benefited by tribal services that they
were ineligible to receive because they were not enrolled Hoopas. However, an
individual Indian's rights in tribal or unallotted property arises only upon
individualization; individual Indians do not hold vested severable interests
in unallotted tribal lands and monies as tenants in common. See United
States v. Jim, 409 U.S. 80, 82-83, 93 S.Ct. 261, 263, 34 L.Ed.2d 282 (1972);
Gritts v. Fisher, 224 U.S. 640, 642, 32 S.Ct. 580, 581, 56 L.Ed. 928
(1912); Felix S. Cohen's Handbook of Federal Indian Law, supra, at 605-06.
Just as an enrolled Hoopa could not claim a "share" of monies used by the Hoopa
Valley Tribe as a government, plaintiffs may not recover a portion of monies
distributed to the Tribe. Thus, payments made to the Tribe will not be
credited to or deducted from the plaintiffs' award as individuals.
The Secretary may choose to make future distributions on a tribal basis, make
additional per capita payments to individuals, or both, but the distributions
must be made in a non-discriminatory manner. To mandate that the Secretary
distribute monies dollar-for-dollar between an organized tribal government and
a group of individual Indians could hinder the Secretary's implementation of
the Congress' and the Executive's policy of strengthening tribal governance and
self-determination. See Indian Self-Determination and Education Assistance
Act, Pub.L. No. 93-638, 88 Stat. 2203, codified at 25 U.S.C. ss 450, et
seq. (1982 & Supp. III 1985); President's Statement on Indian Policy, 19
Weekly Comp.Pres.Doc. 98, 99 (Jan. 24, 1983).
D. Interest on the Amounts Owed
[5, 6] In this case, as in Mitchell II, the timber statute in question,
25 U.S.C. s 407, has waived the government's sovereign immunity, permitting
recovery of damages sustained from a breach of trust. Short III, 719 F.2d
at 1134-35; see Mitchell II, 463 U.S. at 222-26, 103 S.Ct. at 2970-73.
Despite this waiver, as a general matter, interest is not assessable in claims
against the United States unless a Fifth Amendment taking has occurred, or
unless interest is provided for in an express contractual provision or by
statute. 28 U.S.C. s 2516(a) (1982); United States v. Alcea Band of
Tillamooks, 341 U.S. 48, 49, 71 S.Ct. 552, 95 L.Ed. 738 (1951); United
States v. Mescalero Apache Tribe, 207 Ct.Cl. 369, 380, 518 F.2d 1309, 1316
(1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976).
Nor can interest be awarded on the basis of policy, United States v. N.Y.
Rayon Importing Co., 329 *43 U.S. 654, 658-59, 67 S.Ct. 601, 603-04, 91
L.Ed. 577 (1947), or implied notions of just compensation, United States v.
Thayer-West Point Hotel Co., 329 U.S. 585, 588-90, 67 S.Ct. 398, 399-401, 91
L.Ed. 521 (1947). Recovery of interest in a judgment is also prohibited where
a statute otherwise provides for interest, but the monies at issue were never
held by the government in an interest-bearing account. Navajo Tribe v.
United States, 9 Cl.Ct. 227, 271 (1985); Mitchell v. United States, 229
Ct.Cl. 1, 16, 664 F.2d 265, 275 (1981), aff'd, 463 U.S. 206, 103 S.Ct.
2961, 77 L.Ed.2d 580 (1983).
 Plaintiffs argue, in addition to their claim that interest is authorized
by statute, that a Fifth Amendment taking has occurred. That issue need not be
addressed since 25 U.S.C. ss 161a, 161b, 162a provide for the payment of
interest for the type of funds in question. The defendant concedes that the
unallotted Reservation income was held in an "Indian Monies, Proceeds of
Labor" (IMPL) account, but argues that plaintiffs, as individuals, may not
claim interest on such accounts because such monies are held for "tribes,"
under 25 U.S.C. ss 161a, 161b, 162a. Further, the defendant argues, once
these monies were individualized and distributed to Hoopas, the monies lost
their interest-bearing nature as "tribal" funds, therefore barring the
plaintiffs' interest claim. This argument is not persuasive.
The accounts of revenues from unallotted lands are tribal or communal in
nature, as distinguished from Individual Indian Money (IIM) accounts held for
individual Indians, which are not necessarily required by statute to gather
interest. See American Indians Residing on the Maricopa--Ak Chin
Reservation v. United States, 229 Ct.Cl. 167, 203-04, 667 F.2d 980, 1003
(1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982).
Unlike the situation in Navajo Tribe, where the claimed monies were never
deposited in an interest-bearing account, it is clear that these IMPL funds
were held by the government in trust accounts and were accumulating interest
pursuant to express statutes.
The income from unallotted Reservation lands was held in U.S. Treasury Account
14X7236--"Proceeds of Labor, Hoopa Valley Indians," and the interest from these
proceeds was held in U.S. Treasury Account 14X7736. See Fndgs. 167-72,
Short I, 202 Ct.Cl. at 970-72, 486 F.2d 561. These types of funds
were required to accumulate simple interest at the rate of four percent per
annum, pursuant to the Act of June 13, 1930, 46 Stat. 584, codified at 25
U.S.C. ss 161a, 161b (1982). In 1984, this interest provision was amended
by the Act of Oct. 4, 1984, Pub.L. No. 98-451, 98 Stat. 1729, mandating that
the minimum interest collection rate be at rates as determined by the Secretary
of the Treasury, rather than the flat four percent. 25 U.S.C. s 161a (Supp.
III 1985). These funds could also have been invested, and the defendant
concedes were invested, under the provisions of 25 U.S.C. s 162a (1982) in
bank accounts for interest higher than the four percent of ss 161a, 161b.
[8, 9] But for the defendant's wrongful distribution, the plaintiffs' shares
of the unallotted income would have continued to accrue interest. In fact, the
accumulated escrow fund monies still held by the government continue to accrue
interest. While IMPL accounts are tribal or communal in nature, individual
Hoopas received portions of both accounts, including the accrued interest, in
their per capita payments. Thus, qualified plaintiffs should be treated
similarly. The government may not eliminate liability for interest mandated by
statute simply by wrongfully disposing of the principal to others. The
standard of duty the government owes as a trustee to Indians is not mere
reasonableness, but rather the highest fiduciary standard. American Indians
Residing on the Maricopa--Ak Chin Reservation, 229 Ct.Cl. at 182, 667 F.2d at
990. Where, as here, funds were bearing interest by statute in the U.S.
Treasury, and were disposed of wrongfully, the government is liable for
interest. United States v. Gila River Pima--Maricopa Indian Community, 218
Ct.Cl. 74, 85-86, 586 F.2d 209, 216-17 (1978); see Coast Indian
Community v. *44 United States, 213 Ct.Cl. 129, 157-58, 550 F.2d 639,
 Compound interest, or interest on interest, may not be assessed against
the United States under s 161a. Menominee Tribe v. United States, 97 Ct.Cl.
158, 162-63 (1942) (interest requirements of 25 U.S.C. s 161a applicable
only to principal, not interest accounts). Therefore, plaintiffs' recovery of
interest pursuant to s 161a will be computed to include simple interest only on
the principal portion of the share that plaintiffs would have received from the
date of each distribution to the effective date of the amendment to s 161a.
For the period after the effective date of the amendment to s 161a, interest
will be paid pursuant to that amended section.
Plaintiffs argue that they should recover a "reasonable rate" of interest,
correctly stating that the statutory four percent interest rate on IMPL funds
is a floor rather than a ceiling. Mitchell, 229 Ct.Cl. at 15-16, 664 F.2d
at 274; Cheyenne-Arapaho Tribes v. United States, 206 Ct.Cl. 340, 348,
512 F.2d 1390, 1394 (1975). The award of an interest rate higher than that
provided by ss 161a, 161b is available for funds invested by the Secretary in
banks under s 162a. However, the recovery of a higher rate under s 162a is
premised upon a showing of higher investment opportunities available to the
government during the period in question. Cheyenne-Arapaho Tribes, 206
Ct.Cl. at 349-51, 512 F.2d at 1395-97. Provided such a showing is made, post-
distribution interest rates will be at a higher rate as provided by 25
U.S.C. s 162a, as amended on Nov. 4, 1983 by Pub.L. No. 98-146, 97 Stat.
929. 25 U.S.C. s 162a (Supp. III 1985). Even without a showing of higher
investment opportunity, the rate will be no less than the four percent required
under 25 U.S.C. ss 161a, 161b, and the rate determined by the Secretary
of the Treasury for the period after the effective date of the amendment of s
E. Monies Remaining in the Short Escrow Fund
 Plaintiffs seek to have this court award them the so-called Short
escrow fund in its entirety, arguing that the accumulated income and interest
represents their exclusive share of Reservation income collected since 1974.
However, under 28 U.S.C. s 1491, this court may award only "actual,
presently due money damages from the United States." United States v.
Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting
United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52
(1969)). Plaintiffs have not been damaged with respect to these funds, still
held in the U.S. Treasury, and which remain subject to the Secretary's
discretion under 25 U.S.C. s 407. To date the Secretary's conduct with
regard to these monies remaining in the escrow fund, has not given rise to an
action for damages for injuries sustained.
This court cannot grant prospective relief for contemplated injury in the
future or issue a general declaratory judgment under its jurisdictional
constraints. The law of this case does require that if the Secretary decides
to make per capita distributions of unallotted Reservation income, all persons
who fall into the category of an Indian of the Hoopa Valley Reservation, alive
at the time of a given distribution, be included. However, until these monies
are individualized or otherwise handled contrary to law, plaintiffs have not
been injured with respect to these funds, and the requested relief will not be
The Hoopa Valley Tribe has expressed some concern that the defendant will
attempt to pay damages to the plaintiffs from the monies remaining in the
escrow fund. While the defendant-intervenor requests this court to direct the
disposition of the escrow funds for its benefit, this issue is not yet ripe for
decision, and there is serious doubt whether such authority is within the scope
of the court's powers absent a definitive action causing injury.
The Secretary is given authority to manage timber resources on Indian lands
under 25 U.S.C. s 407. This court will not substitute its judgment for that
of the Secretary, who is in a better position to determine the needs of the
Reservation and its *45 residents. Under s 407, Congress has stated that
the income from the sale of timber on unallotted lands "shall be used for the
benefit of the Indians who are members of the tribe or tribes concerned in such
manner as [the Secretary] may direct," allowing only for administrative expense
deductions. 25 U.S.C. s 407 (1982). While the Secretary does exercise
discretion over these funds, such discretion is not unlimited. The action must
be consistent with the government's overriding fiduciary obligation to Indian
tribes and individual Indians in the management of their resources, property,
and affairs. The violation of these duties under the statute would give rise to
an action for money damages. Mitchell II, 463 U.S. at 226, 103 S.Ct. at
2972; Short III, 719 F.2d at 1135; White Mountain Apache Tribe v.
United States, 11 Cl.Ct. 614, 669 (1987); Navajo Tribe, 9 Cl.Ct. at 232.
However, until such a violation occurs, this court is constrained from ruling
with regard to this issue.
Recovery of damages for those plaintiffs who qualify as Indians of the
Reservation will be calculated based upon their wrongful exclusion from prior
per capita distributions, which includes their shares as calculated above, plus
interest as provided by statute. The Short escrow funds remain subject to
the Secretary's discretion, and shall be expended as the Secretary determines,
for the benefit of the Indians of the Reservation as provided by statute, and
in a manner otherwise consistent with this opinion and previous court