Samish Indian Nation v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

SAMISH INDIAN NATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2010-5067
__________________________

Appeal from the United States Court of Federal
Claims in case no. 02-CV-1383, Judge Margaret M.
Sweeney.
_________________________

Decided: September 20, 2011
_________________________

CRAIG J. DORSAY, Dorsay & Easton, LLP, of Portland,
Oregon, argued for plaintiff-appellant. With him on the
brief were WILLIAM R. PERRY and ANNE D. NOTO, Sonosky,
Chambers, Sachse, Endreson & Perry LLP, of Washing-
ton, DC.

THEKLA HANSEN-YOUNG, Attorney, Environment and
Natural Resources Division, Appellate Section, United
States Department of Justice, of Washington, DC, argued
for defendant-appellee. With her on the brief were
IGNACIA S. MORENO, Assistant Attorney General,
SAMISH INDIAN NATION v. US 2

KATHRYN E. KOVACS, Attorney. Of counsel was DEVON
LEHMAN MCCUNE, Attorney, United States Department of
Justice, of Denver, Colorado.
__________________________

Before BRYSON, GAJARSA * , and MOORE, Circuit Judges.
GAJARSA, Circuit Judge.
The issues on appeal before this court are ones of
statutory construction. We must decide whether certain
claims are premised on money-mandating statutes and
are therefore within the jurisdiction of the United States
Court of Federal Claims pursuant to the Tucker Act, 28
U.S.C. § 1491(a), and the Indian Tucker Act, 28 U.S.C.
§ 1505. The Court of Federal Claims dismissed for lack of
jurisdiction over the claims brought by the Samish Indian
Nation (“Samish”) because some of their allegations were
not premised upon any statute that was money-
mandating, and the allegations reliant on money-
mandating statutes were limited by other statutes. We
affirm the Court of Federal Claims’ decision that it lacked
jurisdiction over some of the Samish’s allegations because
the Tribal Priority Allocation (“TPA”) system is not
money-mandating. We conclude, however, that the trial
court’s ability to provide a monetary remedy under the
State and Local Fiscal Assistance Act of 1972 (“Revenue
Sharing Act”) is not limited by operation of the Anti-
Deficiency Act, 31 U.S.C. § 1341. We therefore reverse
the trial court’s dismissal of the Samish’s Revenue Shar-
ing Act allegations and remand for further proceedings
consistent with this opinion.

* Judge Gajarsa assumed senior status on July 31,
2011.
3
SAMISH INDIAN NATION v. US

BACKGROUND
This case is the latest in a series of suits filed by the
Samish to obtain treaty rights and benefits from the
United States (“Government”). 1 The Samish’s efforts to
be federally recognized and acknowledged for statutory
benefits are more fully discussed in Samish Indian Na-
tion v. United States, 58 Fed. Cl. 114, 115-16 (2003)
(“Samish I”) and Samish Indian Nation v. United States,
419 F.3d 1355, 1358-62 (Fed. Cir. 2005) (“Samish II”) but
are briefly summarized below.

1 In 2002, the Samish filed a complaint under the
Administrative Procedure Act (“APA”) in the Western
District of Washington alleging that the funding the
Bureau of Indian Affairs allocated to the Samish after the
tribe was officially recognized was inequitable. Samish
Indian Nation v. U.S. Dep’t of Interior, No. C02-1955P,
2004 WL 3753252, at *1 (W.D. Wash. Sept. 22, 2004). In
2004, the district court dismissed the Samish’s claims for
lack of subject matter jurisdiction, for lack of standing,
and because there was no “final agency action” allowing
for judicial review under the APA. Id. at *3; see also
Samish Indian Nation v. U.S. Dep’t of Interior, No. C02-
1955P, 2004 WL 3753251, at *1 (W.D. Wash. Feb. 6,
2004). The Samish also filed a motion to reopen the 1979
judgment in United States v. Washington, 384 F. Supp.
312 (W.D. Wash. 1974), that denied the Samish’s claim to
fishing rights under the Treaty of Point Elliott. United
States v. Washington, 593 F.3d 790, 796-98 (9th Cir.
2010). The Ninth Circuit sitting en banc held that the
recognition obtained by the Samish was not an extraordi-
nary circumstance warranting the reopening of the prior
denial of treaty rights. Id. at 798-99. The Ninth Circuit
held that “treaty litigation and recognition proceedings
were ‘fundamentally different’ and had no effect on one
another.” Id. at 800 (quoting Greene v. Babbitt, 64 F.3d
1266, 1270 (9th Cir. 1995)).
SAMISH INDIAN NATION v. US 4

Before 1978, the Department of the Interior (“De-
partment”) through the Bureau of Indian Affairs (“BIA”)
accorded tribes federal recognition on an ad hoc basis.
Kahawaiolaa v. Norton, 386 F.3d 1271, 1272-73 (9th Cir.
2004). In 1966, the BIA created an unofficial list of tribes
recognized by the United States. According to the BIA,
the 1966 list was not intended “to be a list of federally
recognized tribes as such” and was derived from its unof-
ficial files. Samish II, 419 F.3d at 1359. The list did not
distinguish between tribes based on their treaty recogni-
tion status because, at that time, the BIA lacked the legal
basis to determine which tribes were treaty recognized.
Id. The Samish were included on the list.
In 1969, the BIA created another unofficial list re-
stricted to tribes with a “formal organization” approved by
the BIA. Id. The Samish did not appear on that list due
to an arbitrary omission by the BIA. Greene v. Babbitt,
943 F. Supp. 1278, 1288 n.13 (W.D. Wash. 1996) (conclud-
ing that the omission of the Samish from the unofficial
1969 list was arbitrary). Although the BIA created the
list, it lacked the legal authority to determine which tribal
groups would be accorded federal recognition. The 1969
list nonetheless became the basis for the BIA’s classifica-
tion of tribes in the future. Samish II, 419 F.3d at 1361.
According to the BIA employee who prepared the list, the
BIA’s relevant records from 1969 have been lost. Id.
In the early 1970s, Congress began conditioning fed-
eral benefits to the tribes and their members on formal
federal recognition as determined by the Department.
The final regulation establishing the formal procedure for
federal recognition of the tribes was published by the
Department in 1978. See Procedures for Establishing
that an American Indian Group Exists as an Indian Tribe,
43 Fed. Reg. 39,361 (Sept. 5, 1978) (codified at 25 C.F.R.
Pt. 54 (1979)). As the current version of that regulation
5
SAMISH INDIAN NATION v. US

makes clear, federal acknowledgment does “not create
immediate access to existing programs.” 25 C.F.R.
§ 83.12(c) (2011). A tribe may participate only “after it
meets the specific program requirements, if any, and upon
appropriation of funds by Congress.” Id. Because they
were arbitrarily removed from the list of recognized
tribes, the Samish ceased receiving federal benefits.
In 1972, the Samish petitioned the Department seek-
ing federal recognition in order to obtain federal program
benefits. Samish Indian Tribe v. Babbitt, Docket No.
Indian 93-1, Office of Hearings and Appeals, Recom-
mended Decision (Dep’t of Interior, Aug. 31, 1995). That
petition was finally denied fifteen years later by the
Department following an informal adjudication procedure.
Final Determination That the Samish Indian Tribe Does
Not Exist as an Indian Tribe, 52 Fed. Reg. 3,709 (Feb. 5,
1987). As a result, the Samish filed an action in federal
district court alleging that the Department’s adjudicative
procedure violated the tribe’s due process rights. In 1992,
the district court vacated the Department’s determination
and remanded the federal recognition petition to be
reconsidered under the formal adjudication procedures set
forth in the Administrative Procedure Act (“APA”).
Greene v. Lujan, No. 89-645, 1992 WL 533059, at *9 (W.D.
Wash. Feb. 25, 1992), aff’d sub nom. Greene v. Babbitt, 64
F.3d 1266 (9th Cir. 1996). This long travail for the Sam-
ish finally ended when it obtained federal recognition on
April 9, 1996. The Department published formal notice
on that date indicating that the Samish was an Indian
tribe under applicable federal law. Final Determination
for Federal Acknowledgement of the Samish Tribal Or-
ganization as an Indian Tribe, 61 Fed. Reg. 15,825 (Apr.
9, 1996).
SAMISH INDIAN NATION v. US 6

On October 11, 2002, the Samish filed suit in the
Court of Federal Claims seeking money damages under
the Tucker Act and the Indian Tucker Act, which waive
the sovereign immunity of the United States with respect
to certain actions. These statutory provisions only waive
the sovereign immunity of the United States. Damages, if
any, must be premised on money-mandating statutes. In
their first amended complaint, the Samish sought dam-
ages for the deprivation of their statutory benefits as a
result of the Government’s erroneous and arbitrary re-
fusal to recognize the tribe between 1969 and 1996, as
well as compensation for benefits that the Samish had
been wrongfully denied since their acknowledgement and
recognition as a federal tribe in April 1996. Samish I, 58
Fed. CI. at 116-17.
The trial court dismissed the complaint holding that
the six-year statute of limitations in 28 U.S.C. § 2501
barred all but one of the Samish’s claims and 28 U.S.C.
§ 1500 barred the remaining claim. Id. On appeal, this
court found that the Indian Self-Determination and
Education Assistance Act, 25 U.S.C. § 450 et seq., and the
Snyder Act, 25 U.S.C. §§ 2, 13, were not money-
mandating with respect to the Samish’s claims. Samish
II, 419 F.3d at 1358. This court reversed the trial court’s
determination that the Samish’s claim regarding its
failure to receive benefits from 1969 until 1996 was time
barred. We then remanded “for further proceedings to
determine whether the remaining statutes underlying the
claim are money-mandating.” Id.
On remand, the Samish filed a second amended com-
plaint alleging two claims for relief. 2d Am. Compl.,
Samish Indian Nation v. United States, No. 02-1383 (DE
36) at ¶¶ 31-36 (Fed. Cl. Jan. 1, 2006). The first claim
sought damages under various federal statutes and
programs for the Government’s failure to provide the
7
SAMISH INDIAN NATION v. US

Samish with benefits from 1969 until 1996. The com-
plaint alleged that either the underlying legal framework
of the programs or the statutes creating the programs
were money-mandating. 2d Am. Compl. at ¶¶ 31-36; see
Samish Indian Nation v. United States, No. 02-1383 L,
2006 WL 5629542, at *1 (Fed. CI. July 21, 2006) (interim
discovery order interpreting first claim). The second
claim alleged that the “network” of programs and statutes
providing federal benefits to all federally-recognized
tribes created a fiduciary duty that the Government
breached by failing to provide the Samish with benefits.
2d Am. Compl. at ¶¶ 37-44; see Samish, 2006 WL
5629542, at *2 (interpreting second claim).
The Government moved to dismiss the Samish’s com-
plaint and argued that the referenced programs or stat-
utes were not money-mandating. Thus, the Samish’s
claims fell outside the scope of both the Tucker Act and
the Indian Tucker Act, and consequently, sovereign
immunity was not waived. The Court of Federal Claims
issued two opinions explaining why it was granting the
motion to dismiss. See Samish Indian Nation v. United
States, 82 Fed. Cl. 54, 55 (2008) (“Samish III”); Samish
Indian Nation v. United States, 90 Fed. Cl. 122, 128-29
(2009) (“Samish IV”). On appeal, the Samish challenge
the trial court’s dismissal of their claims, but limit their
arguments to two programs they allege are money-
mandating, the TPA system and the Federal Revenue
Sharing program created by the State and Local Fiscal
Assistance Act of 1972, Pub. L. No. 92-512, 86 Stat. 919,
commonly known as the Revenue Sharing Act of 1972.
In Samish III, the Court of Federal Claims held that
the TPA system was not money-mandating and, thus, it
did not have jurisdiction over either of the Samish’s
claims. 82 Fed. Cl. at 68-69. The trial court first found
SAMISH INDIAN NATION v. US 8

that the TPA system was neither a “statute” nor a “dis-
crete statutory program.” Id. at 59, 65-66. Rather, it was
merely a budgetary mechanism and, therefore, could not
impose a money-mandating duty on the Government. Id.
at 66. The trial court discussed United States v. Navajo
Nation, 537 U.S. 488 (2003) (“Navajo I”), and explained
that its analysis “must train on specific rights-creating or
duty-imposing statutory or regulatory prescriptions.”
Samish III, 82 Fed. Cl. at 68 (quoting Navajo I, 537 U.S.
at 507). Applying White Mountain Apache Tribe v. United
States, 537 U.S. 465 (2003), and Navajo I, the trial court
next determined that because the TPA system did not
create a fiduciary duty on the part of the Government or a
specific trust, it could not be interpreted as money-
mandating. Samish III, 82 Fed. Cl. at 69.
In Samish IV, the Court of Federal Claims held that
although the Revenue Sharing Act was money-
mandating, to the extent that the Samish’s allegations in
its claim relied upon it, the Anti-Deficiency Act, 31 U.S.C.
§ 1341, rendered those allegations moot. 90 Fed. CI. at
133-37. The Court of Federal Claims applied Agwiak v.
United States, 347 F.3d 1375 (Fed. Cir. 2003), and held
that the Revenue Sharing Act’s usage of the phrases “is
entitled” and “shall pay,” made it money-mandating.
Samish IV, 90 Fed. Cl. at 135-36. The trial court found
that the Act was money-mandating because it was framed
as an “entitlement” and included the following language:
“The Secretary of the United States Department of the
Treasury shall, for each entitlement period, pay out . . . to
each State government . . . and . . . each unit of local
government a total amount equal to the entitlement of
such unit.” Id. at 133 (quoting 86 Stat. 919 at Sec. 102)
(emphasis added). The court analyzed the Samish’s claim
for statutory damages under the Revenue Sharing Act,
but did not address the Samish’s breach of trust argu-
9
SAMISH INDIAN NATION v. US

ment or whether the Revenue Sharing Act imposed a
fiduciary duty upon the Government to provide the Sam-
ish with funds authorized by the Act.
The trial court concluded, however, that its ability to
award any damages mandated by the Revenue Sharing
Act was limited by the Anti-Deficiency Act. Samish IV,
90 Fed. Cl. at 136-37. It interpreted the Anti-Deficiency
Act as prohibiting a court from “award[ing] funds if an
appropriation has lapsed unless an aggrieved party files
suit before the appropriation lapses.” Id. at 136. Because
the appropriations for the Revenue Sharing Act lapsed in
1983 but the Samish did not file their lawsuit until 2002,
the trial court held that the Samish’s allegations related
to the Revenue Sharing Act were moot. Id. at 136-37. We
have jurisdiction over the Samish’s timely filed appeal
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
This court reviews the Court of Federal Claims’ dis-
missal of a complaint for lack of jurisdiction and interpre-
tation of statutes without deference. Brown v. United
States, 86 F.3d 1554, 1559 (Fed. Cir. 1996); Western Co. of
N. Am. v. United States, 323 F.3d 1024, 1029 (Fed. Cir.
2003). The Government argues that it had no duty to
treat the Samish as federally recognized prior to 1996,
and therefore, this court need not even address whether
the TPA system or Revenue Sharing Act can be inter-
preted as mandating compensation for damages. This
argument is not persuasive because in Samish II, this
court ruled that the Government’s failure to treat the
Samish as a federally recognized tribe from 1969 to 1996
was “wrongful” and “arbitrary and capricious.” 419 F.3d
at 1373-74. The Government’s wrongful failure to recog-
nize the Samish gave rise to a damages claim, but two
SAMISH INDIAN NATION v. US 10

questions remain. The answer to these questions deter-
mines whether the Government is liable to the Samish.
The first is whether the Court of Federal Claims has
jurisdiction over the Samish’s claim because the TPA
system is money-mandating. The second is whether the
Anti-Deficiency Act limits the trial court’s ability to
provide a monetary remedy under the Revenue Sharing
Act. We address each in turn.
I.
The analysis of whether a law is money-mandating
contains two steps. First, the court determines whether
any substantive law imposes specific obligations on the
Government. If that condition is met, then the court
proceeds to the second inquiry, “whether the relevant
source of substantive law can be fairly interpreted as
mandating compensation for damages sustained as a
result of a breach of the duties the governing law im-
poses.” United States v. Navajo Nation, 129 S. Ct. 1547,
1552 (2009) (“Navajo III”) (quotations omitted). The
Court of Federal Claims has jurisdiction if the substantive
law at issue is “reasonably amenable to the reading that it
mandates a right of recovery in damages.” White Moun-
tain, 537 U.S. at 473.
Under Navajo I and Navajo III, the TPA system, Ap-
propriations Acts, and statutes authorizing Indian pro-
grams are not money-mandating. The “money-
mandating” condition is satisfied when the text of a
statute creates an entitlement by leaving the Government
with no discretion over the payment of funds. Doe v.
United States, 100 F.3d 1576, 1581 (Fed. Cir. 1996). In
limited situations, the “money-mandating” requirement
may also be satisfied if the Government retains discretion
over the disbursement of funds but the statute: (1) pro-
vides “clear standards for paying” money to recipients; (2)
11
SAMISH INDIAN NATION v. US

states the “precise amounts” that must be paid; or (3) as
interpreted, compels payment on satisfaction of certain
conditions. Perri v. United States, 340 F.3d 1337, 1342-43
(Fed. Cir. 2003). As the Supreme Court explained in
Navajo I, the money-mandating “analysis must train on
specific rights-creating or duty-imposing statutory or
regulatory prescriptions.” 537 U.S. at 506. In Navajo III,
the Supreme Court emphasized that the “text of the
Indian Tucker Act makes clear that only claims arising
under ‘the Constitution, laws or treaties of the United
States, or Executive orders of the President’ are cogniza-
ble.” 129 S. Ct. at 1558.
Although the TPA system secures funds for tribes, it
is not a statute or regulation.
According to 25 C.F.R. § 46.2, “TPA means the BIA’s
budget formulation process that allows direct tribal
government involvement in the setting of relative priori-
ties for local operating programs.” The TPA system refers
to the BIA’s internal budgeting process, which includes
preparation of the BIA’s budgetary requests, presentation
of the BIA’s requests to Congress, and distribution of
Congressional appropriations for the operation of Indian
programs authorized under different statutes. Congress
has enacted authorizing statutes for some but not all of
the specific programs covered by the TPA system, includ-
ing the Johnson-O’Malley Act, the Indian Child Welfare
Act of 1978, the Indian Child Protection and Family
Violence Protection Act, and the Higher Education Tribal
Grant Authorization Act.
In this case, the relevant statutes are the annual Ap-
propriations Acts that provide the TPA system with funds
and the statutes creating the programs supported by TPA
funds. After receiving the funds through the Appropria-
SAMISH INDIAN NATION v. US 12

tions Acts, the BIA allocates the funds among federally
recognized tribes if they are participating in statutorily
designated programs pursuant to a contract, the Indian
Self-Determination and Education Assistance Act, fund-
ing compacts, or grant agreements. As the General
Accounting Office has recognized, the purpose of the TPA
system is to “further Indian self-determination by giving
the tribes the opportunity to establish their own priorities
and to move funds among programs accordingly, in con-
sultation with BIA.” Gen. Accounting Office: Report to
Congressional Requesters, GAO/RCED 98-181, at 4(July
1998) (J.A. 230 ¶ 33). The Appropriations Acts do not
provide a clear standard for paying money to recognized
tribes, state the amounts to be paid to any tribe, or com-
pel payment on satisfaction of certain conditions. See
Perri, 340 F.3d at 1342-43.
The Appropriations Acts provide funds to the BIA,
specifically, “sums . . . appropriated . . . [f]or operation of
Indian programs.” See, e.g., Appropriations Act for 2001,
Pub. L. No. 106-291, 114 Stat. 922 (2000). For example,
the Appropriations Act for 1993 states:
Be it enacted . . . [t]hat the following sums are ap-
propriated . . . for the Department of the Interior
and related agencies for the fiscal year . . ., and for
other purposes, namely: For operation, of Indian
programs by direct expenditure, contracts, coop-
erative agreements, and grants including ex-
penses necessary to provide education and welfare
services for Indians either directly or in coopera-
tion with States and other organizations . . .;
grants and other assistance to needy Indians;
maintenance of law and order; management, de-
velopment, improvement, and protection of re-
sources and appurtenant facilities under the
jurisdiction of the Bureau of Indian Affairs. . .; for
13
SAMISH INDIAN NATION v. US

the general administration of the Bureau of In-
dian Affairs. . ., $1,353,899,000.
Pub. L. No. 102-381, 106 Stat. 1374-88 (1992). The an-
nual Appropriations Acts and the statutes that establish
programs supported by TPA funds do not impose any
specific trust obligations on the Government beyond the
general trust relationship that exists between the Gov-
ernment and the tribes.
Since its decision in Cherokee Nation v. Georgia in
1831, the Supreme Court has recognized the existence of
a general trust relationship between the Government and
the tribes. 30 U.S. 1, 2 (1831) (explaining the tribes’
“relations to the United States resemble that of a ward to
his guardian”). Similarly, Congress has recognized that
general trust relationship. See, e.g., 25 U.S.C. § 458cc(a)
(noting the “Federal Government’s laws and trust rela-
tionship to and responsibility for the Indian people.”) As
recently explained in the United States v. Jicarilla Apache
Nation, the trust relationship between the tribes and the
Government is “defined and governed by statutes.” No.
10-382, 2011 WL 2297786, *8, 564 U.S. ___ (June 13,
2011). In Jicarilla, the Supreme Court also explained
that common law trust principles apply to the trust
relationship between the Government and the tribes only
where Congress has indicated it is appropriate to do so.
Id. at *11. In White Mountain, the Supreme Court distin-
guished instances where the Government undertook “full”
responsibility for managing Indian land and resources
from “limited” trust relations in which the Government
undertook no resource management responsibility. 537
U.S. at 473-74. In Navajo I, the Supreme Court looked for
an assignment to the Government of “a comprehensive
managerial role” or express investment with responsibil-
ity to secure “the needs and best interests of the Indian
SAMISH INDIAN NATION v. US 14

owner and his heirs” as indicators of a fiduciary relation-
ship. 537 U.S. at 507-08.
In United States v. Mitchell, the Supreme Court held
that the Government may be obligated to pay damages
when a network of statutes describes a fiduciary relation-
ship beyond the general trust relationship between the
Government and the tribes. 463 U.S. 206, 226 (1983).
The statutes in Mitchell imposed “elaborate control”
duties on the Government and gave the Government
significant managerial responsibility over the tribe’s
property. The same cannot be said of the TPA system,
and although the TPA system facilitates the allotment of
federal money to the tribes, it is not money mandating.
The network of statutes underlying the TPA system does
not contain detailed express language supporting the
existence of a fiduciary relationship or a trust corpus.
The Samish have not identified any TPA-related statutes
containing the level of detail necessary to establish a
fiduciary relationship beyond the general trust relation-
ship between the Government and the tribes. See Ji-
carilla, 2011 WL 2297786 at *8; Navajo I, 537 U.S. at
507-08. We therefore affirm the trial court’s finding that
the TPA system is not money-mandating.
II.
A.
We now review whether the trial court is correct in its
analysis of the other statutes relevant to the Samish’s
claims, namely, the Federal Revenue Sharing Act and the
Anti-Deficiency Act. We affirm the conclusion of the trial
court that the Revenue Sharing Act is money-mandating.
We hold that the Anti-Deficiency Act does not apply
because it does not limit the Court of Federal Claims’
power to enter a judgment in damages to compensate a
plaintiff for an injury on a claim brought under the
15
SAMISH INDIAN NATION v. US

Tucker Act. Therefore, we conclude that the Court of
Federal Claims has jurisdiction over the Samish’s allega-
tions based on the Revenue Sharing Act.
The Revenue Sharing Act distributed federal funds to
state and local governments, including Indian tribes and
Alaskan native villages. The funds to be paid to each unit
of government were described as “entitlements,” and the
Act directed that Indian tribes “shall be allocated” a
portion of the funds based on population. As discussed
below, that language is language that this court has
recognized as making a statute money-mandating.
In Agwiak, the plaintiff-appellants who had been em-
ployed by the Government sought remote worksite pay
pursuant to a statute that included language that “the
employee in commuting to and from his residence and
such worksite, is entitled, in addition to pay otherwise due
him, to an allowance of not to exceed $10 a day. The
allowance shall be paid under regulations . . . .” 347 F.3d
1378-79 (quoting 5 U.S.C. § 5942(a) (2000) (emphases
different than original)). As the court explained, “[w]e
have repeatedly recognized that the use of the word ‘shall’
generally makes a statute money-mandating.” Id. at
1380. Similarly, in Greenlee County, Arizona v. United
States, 487 F.3d 871, 877 (Fed. Cir. 2007), this court held
that an act providing that the Government “shall make a
payment for each fiscal year to each unit of general local
government in which entitlement land is located” was
“reasonably amenable” to a reading that it is money-
mandating. Additionally, in Britell v. United States, 372
F.3d 1370, 1378 (Fed. Cir. 2004), this court held that
regulations implementing the military’s health insurance
plan providing that the plan “will pay” benefits “directly”
to the insured, were “reasonably amenable to the reading
that [they] mandate[ ] a right of recovery in damages.”
SAMISH INDIAN NATION v. US 16

Thus, because the Revenue Sharing Act, like the statutes
discussed above, directs that tribes “shall be allocated”
certain funds, we hold that it is money-mandating.
In National Association of Counties v. Baker, 842 F.2d
369 (D.C. Cir. 1988), the D.C. Circuit examined provisions
of the Revenue Sharing Act similar to the relevant lan-
guage in this case and found that the Act did not mandate
compensation. In that case, local counties sought to
recover revenue sharing funds that had been sequestered
pursuant to a statute aimed at eliminating the federal
budget deficit. Id. at 371-72. The government argued
that the counties’ lawsuit was one for money damages
that fell within the exclusive jurisdiction of the Court of
Federal Claims and therefore could not proceed in the
district court. The D.C. Circuit disagreed and character-
ized the lawsuit as a request for the release of specific
funds for which the APA waived sovereign immunity, not
as a request for money damages. As a predicate to that
ruling, the D.C. Circuit determined that the Revenue
Sharing Act did not mandate compensation, even though
the Act directed the payment of money. Id. at 376. We
note that the D.C. Circuit reached this conclusion before
the Supreme Court’s decision in White Mountain, 537 U.S.
at 472-73 and our decision in Agwiak, 347 F.3d at 1378-
79, and, as did the Court of Federal Claims, we instead
rely on those later authorities in determining that the
Revenue Act is money mandating.
B.
The parties dispute whether the Samish’s allegations
under the Revenue Sharing Act are barred by the Anti-
Deficiency Act or any lapse in appropriated funds. Al-
though the Court of Federal Claims correctly held the
Revenue Sharing Act money-mandating, it incorrectly
found the Samish’s allegations barred by the Anti-
17
SAMISH INDIAN NATION v. US

Deficiency Act. Samish IV, 90 Fed. Cl. at 133 n.10, 135-
37. The Anti-Deficiency Act provides that “[a]n officer or
employee of the United States Government . . . may not . .
. make or authorize an expenditure or obligation exceed-
ing an amount available in an appropriation or fund for
the expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A).
The Government argues that the Anti-Deficiency Act
“prevents the Court of Federal Claims from granting
relief to the Samish because it bars the award of funds
pursuant to a statute for which the appropriations have
lapsed or have been capped, unless the aggrieved party
files suit before the appropriation lapses.” Appellee’s Br.
49. Because the appropriations for the Revenue Sharing
Act lapsed in 1983 and the Samish did not file suit until
2002, the trial court held that the Anti-Deficiency Act
barred the Samish’s allegations. Samish IV, 90 Fed. CI.
at 136-37.
The Anti-Deficiency Act limits the authority of federal
officials to enter into contracts or otherwise obligate the
Government to pay funds in excess of the amounts appro-
priated. It does not, however, limit the Court of Federal
Claims’ jurisdiction or its power to enter a judgment in
damages to compensate a plaintiff for an injury on a claim
brought under the Tucker Act. As explained in Ferris v.
United States, “[a]n appropriation per se merely imposes
limitations upon the Government’s own agents; it is a
definite amount of money entrusted to them for distribu-
tion; but its insufficiency does not pay the Government’s
debts nor cancel its obligations, nor defeat the rights of
other parties.” 27 Ct. Cl. 542, 546 (1892); accord Bureau
of Land Mgmt.,63 Comp. Gen. 308, 312 (Apr. 24, 1984)
(“[A] judicial or quasi-judicial judgment or award ‘does not
involve a deficiency created by an administrative officer’ .
SAMISH INDIAN NATION v. US 18

. . . Accordingly, such an award would not be viewed as
violating the Antideficiency Act.” (citations omitted)).
Citing Star-Glo Associates, LP v. United States, 414
F.3d 1349 (Fed. Cir. 2005), the Government contends that
the appropriations for the program are capped and the
funds spent, so, the Anti-Deficiency Act prohibits the
judicial award of money over the amount appropriated.
In Star-Glo, this court found that language in the rele-
vant appropriations act imposed a cap on the available
funds and that the imposition of such a cap restricted the
government’s liability for damages and therefore pre-
cluded an award of damages by the Court of Federal
Claims. Congress had directed the Secretary of Agricul-
ture to use $58 million dollars in appropriated funds to
compensate citrus growers that had lost crop due to
disease; such funds were “to remain available until ex-
pended.” We held that the legislative history of the
relevant statute made clear that Congress had intended
to limit the Government’s liability to the amount specified
in the statute and that the Government was therefore not
subject to liability for damages. Id. at 1352-53. Subse-
quently, in Greenlee County, 487 F.3d at 878-79, we held
that explicit language that funds will be “available only as
provided in appropriations laws” served to cap the statute
and therefore limit the government’s liability.
In contrast, neither the text of the Revenue Sharing
Act nor its legislative history include the limiting lan-
guage of the statutes in Star-Glo and Greenlee County.
The Government contends that such language can be
found at section 106 of that Act, which states that “if the
total amount appropriated under section 105(b)(2) for any
entitlement period is not sufficient to pay in full the
additional amounts allocable under this subsection for
that period, the Secretary shall reduce proportionally the
amounts so allocable.” But that portion of the Act deals
19
SAMISH INDIAN NATION v. US

only with the special provisions for revenue transfer to
noncontiguous states. Section 105(b)(2) separately pro-
vides for appropriations for such transfers. It is not
relevant to the portion of the Act that would have gov-
erned disbursement of funds to the Samish, had the
Samish been properly recognized as a tribe. We therefore
disagree with the government’s assertion that the Reve-
nue Act was capped in a manner that restricts the gov-
ernment’s liability for damages.
Based on the language of the Revenue Sharing Act
and the nature of the Samish’s allegations, we reject the
government’s argument that the Anti-Deficiency Act
limits recovery in this case. The Samish do not seek the
release of appropriated funds, as in many of the cases
involving the APA cited by the Government. Rather, the
Samish seek compensation under the Tucker Act for
damages for an injury sustained due to the Government’s
wrongful failure to recognize the Samish and their inabil-
ity to participate in programs to which they were entitled.
The Samish’s Second Amended Complaint explicitly seeks
compensation for a “harm” done. 2d Am. Compl. at ¶¶ 28-
29.
The Court of Federal Claims based its analysis re-
garding the application of the Anti-Deficiency Act on
cases from other circuits, including City of Houston v.
Department of Housing & Urban Development, 24 F.3d
1421 (D.C. Cir. 1994) and County of Suffolk, N.Y. v.
Sebelius, 605 F.3d 135 (2d Cir. 2010). Those cases involve
a district court’s jurisdiction under the APA and are not
suits for damages under the Tucker Act. In each case, the
plaintiff challenged agency action affecting its funding
and sought injunctive relief requiring the agency to
restore grant funds. City of Houston, 24 F.3d at 1424;
Cnty. of Suffolk, 605 F.3d at 138-39. The appellate courts
SAMISH INDIAN NATION v. US 20

found that the claim became moot when the agency’s
appropriated funds lapsed or were expended. The courts
based their decisions on the limited jurisdiction of district
courts in cases brought under the APA. Under that Act,
district courts can grant a limited monetary award only if
it is in the form of specific relief paid from a particular
res. Once the res no longer exists, the claim becomes
moot because funds cannot be obtained from any other
source. See City of Houston, 24 F.3d at 1428; Cnty. of
Suffolk, 605 F.3d at 140-41. Unlike the district courts,
the Court of Federal Claims need not identify a res
against which a judgment for declaratory and injunctive
relief can be directed. Its judgments are paid from the
Permanent Judgment Fund.
The Court of Federal Claims has general jurisdiction
to enter judgments in damages against the Government.
28 U.S.C. §§ 1491, 1505. The Permanent Judgment Fund
was established to pay monetary damage judgments
entered against the Government when other funds are
unavailable. 31 U.S.C. § 1304. The relevant section of 31
U.S.C. § 1304 states:
(a) Necessary amounts are appropriated to pay fi-
nal judgments, awards, compromise settlements,
and interest and costs specified in the judgments
or otherwise authorized by law when—
(1) payment is not otherwise provided for;
(2) payment is certified by the Secretary of the
Treasury; and
(3) the judgment, award, or settlement is payable
under [various sections of title 28, including
§ 2517, which includes “every final judgment ren-
dered by the United States Court of Federal
Claims.”]
21
SAMISH INDIAN NATION v. US

Thus, if other funds are not available to pay the judg-
ment, the Permanent Judgment Fund is available for that
purpose. See Thompson v. Cherokee Nation, 334 F.3d
1075, 1092 (Fed. Cir. 2003) (stating that a claim for
damages was not mooted by the lapse in appropriated
funds “as damages are awarded from the judgment fund
created by 31 U.S.C. § 1304”).
As the Government Accountability Office (“GAO”)
Redbook explains, “unless otherwise provided by law,
agency operating appropriations are not available to pay
judgments against the United States.” United States
Government Accountability Office, III Principles of Fed-
eral Appropriations Law, at 14-31 (3d ed. 2008). Al-
though the opinion of the GAO is not binding, it is an
“expert opinion, which we should prudently consider.”
Arctic Slope, 629 F.3d at 1303; see also Lincoln v. Vigil,
508 U.S. 182, 192 (1993) (relying on GAO Redbook at 6-
159). Because agency operating appropriations are not
available to pay the damages due to the Samish, “pay-
ment is not otherwise provided for” and the Samish are
eligible to receive monetary damages from the Permanent
Judgment Fund.
CONCLUSION
We affirm the Court of Federal Claims’ decision that
it lacked jurisdiction over some of the Samish’s allega-
tions because the TPA system is not money-mandating.
We also affirm the decision that the Revenue Sharing Act
is money-mandating, reverse dismissal of some of the
Samish’s allegations under the Revenue Sharing Act, and
remand to the Court of Federal Claims for further pro-
ceedings consistent with this opinion.
AFFIRMED-IN-PART, REVERSED-IN-PART,
REMANDED