When we went back in for hearings on this submission by the Department of Interior, Judge Gesell actually used the word "bamboozled," that he thought the United States was trying to bamboozle somebody in this thing. This submission by the United States was deemed to be an example of the United States intransigence throughout this whole suit. I don't think that can be deemed just malfeasance of an agent of the United States. Here we had an agency of the United States actively trying to do everything that it could to avoid living up to its trust responsibility. Perhaps we could draw a distinction on that basis, that if the judge can find that there has been indeed something that could be called intransigence on the part of the United States in failing to live up to its trust responsibility or indeed failing to comply with the mandate of the court, and hence dragging on the litigation, that that may be a way of limiting the burden on the taxpayer and yet not having the private litigant suffer all of the consequences of his litigation. I throw that out only as an example.

Senator TUNNEY. I am familiar with the intransigence of the Government in the Pyramid Lake case because I was trying to get the Attorney General of the United States to represent the Indians' interests in the matter for years, and they would not do it. I am fully familiar with that case, and I think that the Government was not only intransigent, I think that you have to say that the Government through its apathetic approach was actively denying the Indians their rights because it was well aware of what were their responsibilities. As a result of listening to the attorneys for the Indians and having had the opportunity to talk to Congressmen and Senators who were attempting to get the Government to represent those Indians' rights, the Government's course should have been clear.

Mr. BELL. I think the word apathy is a euphemism in this context, it was not apathy, it was an active role on the part of the United States to take away the Indian water.

Senator TUNNEY. If you have any further thoughts on this question of how to balance the interest of the taxpayers against the rights of the public with respect to attorneys' fees, in cases brought against the Government for nonfeasance and malfeasance of government officials. I wish you would submit them for the record. I think we are talking about a very hard difficult problem. When we try to weigh the rights of the various interests involved, we have got to be sure that we are on solid ground in suggesting any change to existing law.

I would agree with you wholeheartedly, the Indian cases are different, because you have a fiduciary relationship. What about the rights of those individuals who are living in a community in which they are going to put a freeway through and destroy their homes, their whole environment, and are forced to move away? What is to happen if there is no provision made for new housing, particularly if they are poor? The same thing is true with individuals that live along the coastline and a nuisance is going to be put in the area by the Federal Government. How do you protect these individuals? They have statutory rights but who will enforce them? If there is going to be some award of attorneys' fees against the Federal Gov

ernment, how do we insure that the taxpayers of the country will not pay for the malfeasance, in some cases nonfeasance, of Federal officials?

Mr. BELL. Let me make one comment on that. I am not convinced when we talk about the malfeasance of an agent of the United States; that does not really aptly characterizes the activity of the United States which necessitate lawsuits to bring them in compliance with the law. If we have one agent of the United States who made a mistake at one point I think that is one thing. But when we have a policy of the United States that is running completely contrary to the law, then I think that is a completely different case. I mean it still could be deemed malfeasance but it is malfeasance on such a grandiose level and, of course, the broader the beneficiaries are of the lawsuit I think the easier it is to pin the cost on the United States. Senator TUNNEY. I agree with that. Of course now what we are talking about is drafting of language and we have to be very precise.

Mr. BELL. Indeed. And at this particular time I can't throw out any language that would meet the problem you are suggesting at the moment. But I think when we are talking about big litigation against policies of the United States. We are not just talking about the malfeasance of one agent of the United States.

Senator TUNNEY. How is the Native American Rights Fund funded?

Mr. BELL. Principally by foundation sources. We are trying to develop a broad base of public support. We have a mail campaign. We got started by the Ford Foundation and we have significantly broadened our financial base to include many other foundations. Senator TUNNEY. I want to congratulate you on your successful suit.

Mr. BELL. Thank you.

[The testimony resumes at page 831. Mr. Bell's prepared statement and exhibits follow:]

PREPARED STATEMENT OF L. GRAEME BELL, III, STAFF ATTORNEY,
NATIVE AMERICAN RIGHTS FUND

I appreciate the opportunity to express the views of Native American Rights Fund to this Subcommittee on 28 U.S.C. §2412, which restricts the recovery of attorneys' fees and other litigation expenses from the United States at the conclusion of lawsuits successfully challenging actions of the federal government. I will direct my testimony to the application of this statute to litigations won by Indian tribes against officials of the federal government wherein the tribes contend that such officials have violated the fiduciary duty of the United States to the plaintiff tribe. I will specifically focus on the recent decision of the United States District Court for the District of Columbia. Judge Gesell, in Pyramid Lake Paiute Tribe of Indians v. Morton, Civil Action Number 2506-70. I attach hereto a copy of this decision, dated June 22, 1973.

As you doubtless know, the United States has the duty to protect the often meagre resources of the American Indian tribes. Since the earliest cases involving the original inhabitants of this country, the judiciary has developed and refined this responsibility, and certainly today there can be little doubt that the United States occupies the position of the legal trustee of the assets of the American Indian tribes, who, concomitantly, are the beneficiaries of this trust. Indeed, in July 1970, President Nixon expressly acknowledged that "the United States Government acts as a legal trustee for the land and water rights of the

American Indian." The President also recognized that officers of the government acting in this fiduciary capacity have "a legal obligation to advance the interests of the beneficiaries of the trust without reservation and with the highest degree of diligence and skill."

But this fiduciary obligation has not been administered "without reservation" in all cases and at all times. Because of the United States government's responsibility to promote what it deems the "public interest," the United States is often beset with a conflict of interest in the administration of the trust responsibility owing to the American Indians. The examples of this conflict are numerous and have been canvassed and documented by the Subcommittee on Administrative Practice of the Senate Judiciary Committee.

The Pyramid Lake situation is probably the paradigm of this conflict of interest. By directive of the Department of Interior in 1859, and confirmed by an Executive Order signed by President Grant in 1874, Pyramid Lake, together with lands surrounding the Lake were reserved for the Paiute Tribe which, since time immemorial, has lived along the shores of the Lake. The Tribe's culture and welfare has always been intimately tied to the Lake and its natural fishery. Geographically, the Lake is the terminus of the Truckee River, which rises in the California Sierras, flows into Lake Tahoe, and then proceeds through Nevada to Pyramid Lake. Hence, the vitality of the Lake, as well as the Tribe, is contingent upon a sufficient inflow of water from the Truckee River to maintain the level of the Lake. On June 17, 1902, Congress passed the Reclamation Act, and by 1905, the Bureau of Reclamation of the Department of Interior. the agency principally charged with the administration of the fiduciary obligation of the United States to the Pyramid Lake Tribe, had built a dam on the Truckee River less than ten miles above Pyramid Lake to divert water from the Truckee River to service the needs of the Newlands Reclamation Project. Hence, water needed for the continued lives of the Lake and the Tribe was diverted upstream for the use of non-Indian landowners. The United States never asked the Tribe to consent to the taking of its most valuable asset, the Truckee River water. As a result of this diversion, the Lake has dropped in surface level more than 70 feet since 1906. The natural fishery of the Lake has been destroyed because the unique fish indigenous to the Lake can no longer spawn in the Truckee River. Furthermore, the decreased level has unsettled the erosion and salinity balance of the Lake to a point where the continued utility of the Lake is endangered.

In 1970, the Tribe sued the Department of Interior. Because of the Tribe's depressed economic position, the Tribe requested the assistance of Native American Rights Funds. The Fund was established in 1970 by the Ford Foundation to represent Indian tribes and Indian people on cases of major significance to Indians throughout the country. The litigation is extraordinarily complex, but the nucleus is the Tribe's contention that the Secretary of Interior was violating the trust obligation of the United States to the Tribe by diverting water to the Newlands Project in excess of the water needs, and, therefore, water rights, of the landowners, and to the great detriment of the Tribe. The litigation has continued for more than two years and already has resulted in a resounding victory for the Tribe. On November 8. 1972, Judge Gesell ruled that the Secretary of Interior had breached the trust obligation owing to the Pyramid Lake Tribe and ordered the Secretary of Interior to submit new operating plans for diversions of Truckee River water, which plans would insure that any water in excess of upstream water rights would flow into Pyramid Lake. The Secretary of Interior submitted new operating criteria to the Court, but the Court on January 11, 1973 ruled that this submission did not comport with its previous order in the litigation. The Court then called upon the plaintiff Tribe to submit operating criteria, and, after full consideration and some modifications, the Court ordered that the plaintiff's submission be adopted by the Secretary of Interior and promulgated in the Federal Register.

After the substance of this complex litigation had ended, the Tribe moved for attorneys' fees and other expenses incurred by its attorneys in connection with the litigation. Native American Rights Fund had expended on this litigation more than $20,000 for expert witnesses, more than $6,000 in travel and per diem expenses for its attorneys, and more than 2,000 hours of attorney time. In addition, the Tribe's general counsel. Robert D. Stitser of Reno, Nevada, had spent more than 800 hours and had expenses totalling more than $2,500 on the suit. At the time of the filing of the motion for attorneys' fees, we were, of course, cognizant of the usual rule, codified in 28 U.S.C. §2412, that attorneys'

fees cannot be awarded against the government unless a statute so provides. We thought that recovery should be permitted notwithstanding 28 U.S.C. §2412 for two reasons.

First, pursuant to 25 U.S.C. $175, the United States, as part of its trust responsibility, has a duty to represent Indian tribes in litigations. This duty is not mandatory. but the discretion is limited by well-defined parameters. In the Pyramid Lake litigation, the United States could not provide the plaintiff with legal representation because the legality of the government's conduct was in question. We argued that where the government has not only failed to represent an Indian Tribe, but through its misconduct (breach of fiduciary obligation) has made it necessary for the tribe to litigate, at great expense, against the government to protect its rights and property, $175 should be held to authorize the award of attorneys' fees and other litigation expenses.

Secondly, we argued that the Pyramid Lake case and the motion for attorneys' fees and other litigation expenses are unique because the plaintiff has an independent cause of action for damages occasioned by the government's breach of fiduciary obligations. That is, whereas in the normal case, attorneys' fees are awarded as ancillary relief inseparable from the main cause of action, here the award of attorneys' fees would be predicated upon an independent theory of recovery. By failing to fulfill his fiduciary obligations, the Secretary of Interior damaged the Tribe not only by illegally diverting water away from Pyramid Lake, but also by placing the burden of litigation on the Tribe's treasury. There is no question but that the government is liable to the Tribe for damages occasioned by its breach, which in this case also included the expenses of the litigation. Given this independent theory of recovery, we argued that it would be an absurd result if the Tribe were required to bring an independent action in another court to recover attorneys' fees and other litigation expenses when the Court which had adjudicated the Pyramid Lake case was obviously the best suited to determine what that award should be. The existence of this independent basis for recovery of attorneys' fees should take this case and others of a similar nature out from under the rule that attorneys' fees cannot be awarded against the government unless a statute so provides.

The Court concluded that the provisions of 28 U.S.C. $2412 are not a bar to the claim by the Pyramid Lake Tribe against the Secretary of Interior based legitimately upon the contention that the Secretary breached his trust responsibility by unlawfully and improperly disposing of tribal assets and that in effect applicable statutes provide that in such situations an award of attorneys' fees and expenses of attorneys may be made. The Court did not focus on the second rationale discussed above. that of the independent cause of action, but instead relied on 25 U.S.C. §175, discussed above, and 25 U.S.C. §476, wherein Congress authorized American Indian tribes to employ legal counsel for the purpose of preventing, among other things, the disposition of tribal assets without the consent of the tribe. The Court recognized that 25 U.S.C. §476 permitted tribes to employ its own counsel where the United States was not able or willing to take up the tribe's cause under 25 U.S.C. §175. "Thus tribes could retain independent counsel and expect to request the Courts for award of attorneys fees under specified circumstances such as the present case." The Secretary of Interior has appealed this decision to the United States Court of Appeals for the District of Columbia.

Approaching 28 U.S.C. $2412 from a broad perspective, Native American Rights Fund suggests that this statute be amended so that a private litigant may be awarded attorneys' fees and other litigation expenses arising from a successful lawsuit against the government, which suit is necessitated by and founded on the government's failure to comply with applicable law. We suggest that the public is the true beneficiary of such a suit and for the private litigant to bear the full cost of the litigation is inequitabie. From a more narrow perspective, Native American Rights Fund submits that Indian tribes should not have to carry the financial burden of forcing their trustee, the United States, to manage their resources consistent with the obligations of a trustee. Because such litigation expenses further deplete the assets of the trust, we maintain that the United States is liable for such costs. Consequently, we suggest that 28 U.S.C. $2412 be amended to clarify the jurisdiction of a court, finding that the United States has breached its trust responsibility to a plaintiff Indian tribe, to make the tribe whole by awarding it attorneys' fees and other litigation expenses from the government.

In the United States District Court for the District of Columbia

CIVIL ACTION, No. 2506-70

PYRAMID LAKE PAIUTE TRIBE OF INDIANS, DEFENDANT

v.

ROGERS C. B. MORTON, SECRETARY OF THE INTERIOR, DEFENDANT

Memorandum

Pyramid Lake Paiute Tribe of Indians has moved for attorneys' fees and other expenses incurred by its attorneys in connection with this successful litigation against the Secretary of the Interior. Although the motion is unopposed, three questions are presented to the Court for determination. First, in this an appropriate case for the award of attorneys' fees and special expenses other than normal court costs? Second, does the Court have authority to make the award sought? Third, assuming the first two matters have been determined affirmatively, what sum is reasonable to compensate counsel and reimburse for expenses claimed?

The record in this case establishes the strongest possible basis under decisions governing the discretion of an equity judge for the award of attorneys' fees and expenses. No purpose will be served by recapitulating the record in this matter which will amply support the following factual determinations. (1) The Pyramid Lake Paiute Tribe of Indians is impoverished. The Reservation is a “depressed area” and the Tribe's legal expenses alone approximate its entire income.

(2) The Secretary of the Interior was shown to have breached his fiduciary obligation to the Tribe by a course of conduct which continued over a substantial period of time. This was to the severe detriment of the Tribe in a manner that cannot be financially compensated.

(3) In the course of these proceedings, the Secretary's representatives acted in an obdurate and intransigent manner, refusing in good faith to carry out the Court's directives. and as a consequence unnecessarily extended the litigation to the detriment of the Tribe.

(4) The determinations made in this litigation not only benefited the Tribe but in many very real respects will enhance the public interest. The litigation has given added protection to the environment in and around Pyramid Lake and it has preserved a unique natural resource. In its larger aspects it has caused a significant implementationof national policy toward Indians and encouraged the continued visability of the Lake, thus assisting declared congressional policy.

Litigation of this character should not be burdened with expense, in order to encourage suits that so clearly enhance the public interest. Wyatt v. Stickney, 344 F.Supp. 387,409 (M.D.Ala.1972)

No review in detail of the decisions is necessary. The following decisions emphasize the single and combined significance of the four factors mentioned as they should govern in the award of attorneys' fees and special expenses. Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970); Vaughan v. Atkinson, 369 U.S. 527 (1962); Yablonski v. United Mine Workers of America,-U.S. App. D.C.-, 466 F.2nd 424 (1972); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972).

A more difficult question is presented when the Court turns to a consideration of its legal authority to assess attorneys' fees and costs against the Secretary. Section 2412 of Title 28, United States Code, authorizes a judgment for costs, "not including the fees and expenses of attorneys," against an official of the United States acting in his official capacity. The usual rule, codified in $2412, is that attorneys' fees cannot be awarded against the Government unless a statute so provides. United States v. Worley, 281 U.S. 339 344 (1930). This provision of the Code must be read, however, in the light of the 25 U.S.C. §175 and 25 U.S.C. §476. Read together, these two provisions show that Congress