concurring and dissenting:
The following summary will show how far I would go in entertaining the claims now before us. I believe we have jursidiction over claims for—
1. Improper deductions from proceeds of timber sales for administrative expenses.
2. Failure to invest tribal funds as allowed by law, to obtain the best available interest.
3. Taking claims, which are not subject to Testan analysis.
The Testan or strict construction analysis will not allow plaintiffs to prosecute in this court claims for—
1. "Mismanagement” and its pecuniary consequences, as e.g., in failure to plan, failure to locate logging roads to minimize erosion, etc.
2. Breach of congressional requirements as by clear cutting where the law requires sustained yield.
3. Issuing fee patents to incompetent Indians, or money proceeds therefrom, resulting in dissipation of Indian assets.
I therefore respectfully differ .with Parts II and III, but agree with and join in Parts IV, V, and VI. I agree with the court as to four out of six categories of claims.
The court agrees that the consent to suit cannot be implied but must be unequivocally expressed; however, it asserts that given the Tucker Act, a substantive obligation plus a strong and clear implication that money is to be paid for breach of the substantive obligation is enough. The substantive obligation here is to manage Indian timberland in an exemplary fashion. The strong and clear implication here is apparently in the mind of the judges only. No attempt is made to show an expression of it by Congress in the statutory language or in the legislative history. The reasoning is, in a nutshell, that in the statutes relied on, read together, Congress has created substantive duties for Interior Department officials to carry out, functions to perform, that strikingly resemble those of a private trustee respecting trust property. It is universally held that a *20private trustee is personally liable for misperformance of his duties. Therefore, the symmetry of the law requires that the United States (not the erring officials) be liable also. This is the strong and clear implication.
This implication is in cold reality but a strong and clear wish on the judge’s part. And I will say for myself, I share it. I hope to live so long as to see the day when the Congress will amend the Tucker Act to make it say: "this consent to be sued shall be liberally construed to effectuate the purpose of Congress, which is that (except where statutes expressly declare otherwise) the United States shall be liable for whatever wrongs a private body would be liable for in a comparable situation, and those for which the United States would have been held liable, but for absence of consent to suit.” I cannot join in efforts to achieve this result by judicial fiat. I think it achieves no overall benefit to the injured claimants and in the end hurts this court, however much it may establish our credentials as persons of good will. It is counterproductive for lower court judges to try to enact the dynamic and positive role of the Supreme Court instead of the one the Supreme Court has assigned to them.
This court has repeatedly failed to take the doctrine of strict construction of the consent to be sued with sufficient seriousness, and apparently nothing can shake its obstinate adhesion to error, to which it repeatedly returns like an alcoholic to the bottle. Such judicial recidivism is peculiarly unfortunate in the case of Indian claims, where it makes the 1946 cutoff date under 25 U.S.C. § 70 and ff for the prosecution of Indian moral claims appear to be of no practical importance. If a correct jurisdictional holding by us did not help in procuring the legislation above suggested, it perhaps could further a shift of the 1946 date to a later one, as it appears apparent that Indian real or alleged wrongs did not suddenly end in 1946, as the Congress fondly imagined they would or had.
We might, as a hypothetical, ardently wish that the United States should be liable under the Tucker Act for maladministration of bankrupt estates. We could point out that the duties of bankruptcy trustees are strikingly similar to those of equity receivers, private individuals who served *21under the supervision of state equity courts in the old days, and who undoubtedly were a category of trustees, personally liable for misfeasance respecting property in receivership. We could be perfectly consistent with today’s holding, in entertaining a Tucker Act suit based on a bankruptcy trustee’s misfeasance, but of course we will not, because we do not ardently desire to take jurisdiction in the bankruptcy field, and therefore we would perceive no strong and clear implication.
There follows, Part I, some general comments on the scope of the strict construction doctrine. Part II, the correct technique of applying it to the case at hand, and Part III how I would deal with specific classes of claims.
I
Our problem is to determine which, if any, of the various clauses of plaintiffs’ claims fall within the defendant’s waiver of sovereign immunity and consent to be sued. Consent must be granted by Congress and "cannot be implied but must be unequivocally expressed” as the Supreme Court again reminds us in its Mitchell decision, 445 U.S. 535, 538 (1980), quoting United States v. King, 395 U.S. 1, 4 (1969). The task has historically been difficult for Court of Claims judges, and their District and Circuit judge counterparts sitting as courts of claims under 28 U.S.C. § 1346. None of us have always been right. Even those well informed as to the above limitations are likely to imagine existing statutory consents to be broader than they really are. Skilled members of the bar are frequently taken aback by limitations on the jurisdiction of this court previously unsuspected by them. Members of the lay public often petition here in the belief we are some kind of ombudsman, and are amazed to be opposed by able government counsel urging technical jurisdictional objections. These expectations derive from over.sweeping rhetoric, as, e.g., the quotation from President Lincoln that decorates our lobby, "[i]t is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private citizens.” Cong. Globe, 37th Cong. 2d Sess. app. at 2 (1862), the statement that we are "the *22conscience of the Nation” and even, one is tempted to add, Justice (formerly Mr. Justice) Holmes in United States v. Emery, 237 U.S. 28, (1915)—
[It is an] inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye. * * *
Though such notions have never been fully adopted by Congress or the courts, they permeate imperceptibly into the minds of Court of Claims judges with the result that reversals of this court on jurisdictional issues by the Supreme Court almost always turn on error in that this court construed its own statutory jurisdiction too broadly. Amell v. United States, 384 U.S. 158 (1966) is an example of the opposite, but it stands virtually alone. As a broad rule of thumb it might be stated that if we judges of the Court of Claims have doubts about our own jurisdiction, the correct answer probably will be that we have none. That the construction of statutory consents to suit must be strict is also a safe generalization. Some examples of strict construction follow, touched on briefly as they lie on the periphery of our argument.
The original 1887 Tucker Act consented to suits in this court on certain stated classes of claims—
* * * [I]n respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable. [24 Stat. 505]
In United States v. Jones, 131 U.S. 1 (1889), the Court held that this language did not consent to a bill in equity for specific performance of a contract to sell land. The Court limited the "equity” reference to claims for money arising out of equitable demands. At that time, as the Court pointed out, managing the public lands was a "political” function in which the interference of the judiciary seemed unthinkable. Consent to suits for money seemed more natural and more in accord with the enlightened expectations of jurists. Now, however, equitable relief against the government is more acceptable than money judgments. Consent to suits for injunctive and declaratory relief *23against the government is virtually unlimited, 5 U.S.C. § 702, while consent to suits for money are still stringently limited. However, the exclusion of equitable relief from the jurisdiction of this court still stands unchanged. United States v. King, supra. The Jones case is on the periphery of the argument here because, as we stated in Mitchell I, plaintiffs herein invoked trust doctrines developed on the equity side of the courts before the merger of law and equity, but did not run counter to Jones because they did not claim other than money damages.
In Hopkins v. United States, 206 Ct.Cl. 303, 513 F.2d 1360 (1975), the plaintiff, a discharged employee of a nonappro-priated fund agency, sued under the Tucker Act amendment that extended its coverage to an "express or implied contract” of such agencies, not previously covered. 84 Stat. 449. Defendant urged that plaintiffs relationship as an employee was, under the normal federal rule, not contractual. The legislative history showed that the amendment was intended to correct the result of cases denying relief, one of which had been a suit by a discharged employee. In other than a consent to suit context, it might well have been held that Congress could effect its intent even using technically incorrect language, if the intent was nevertheless manifest. However, faced with the strict construction canon, this court attempted to effectuate the intent of Congress with a somewhat laborious showing that employment in a nonappropriated fund agency was under an implied contract. The Supreme Court, however, 427 U.S. 123 (1976), held that employees of such agencies could invoke the amendment only on the basis of evidence that their employment was in fact contractual, and in the absence of such evidence in the record, remanded for further proceedings on that question. Thus it seems clear that the congressional effort to better the position of employees of nonappropriated fund agencies, if the amendment was indeed so intended, misfired because of incorrect use of technical language, and as a practical matter, employees of such agencies do not now sue in this court frequently, if at all.
It also appears that the possibility of a repeal by implication is viewed more favorably in consent to sue *24context. The demise of this court’s admiralty jurisdiction is a striking example of that. The Tucker Act language already quoted granted admiralty as well as equity jurisdiction, and up to 1932 this court routinely exercised it in cases sounding in contract, e.g., Alaska Exploration Co. v. United States, 44 Ct.Cl. 392 (1909); Bull Insular S.S. Co. v. United States, 62 Ct.Cl. 338 (1926). However, in Matson Navigation Co. v. United States, 284 U.S. 352 (1932), in affirming a decision here on different grounds, 72 Ct.Cl. 210 (1931), the Supreme Court held that the 1920 Suits in Admiralty Act, 41 Stat. 525, which consented to admiralty suits against the United States in the district courts, repealed the Tucker Act pro tanto. The 1920 Act did repeal all acts and parts of acts in conflict therewith. That is its only reference to the Tucker Act. In other than a consent to suit context, it would not be thought one statute was in conflict with another solely because they provided different avenues for the litigant to follow in seeking to right the same wrong. The Matson decision was in effect ratified by Congress and it is not intended to suggest that, absent further legislation, an admiralty claim could be pursued here under the Tucker Act today.
As to partial repeals by implication of consents to suit, see also Brown v. GSA, 425 U.S. 820 (1976), we have recognized the occurrence of such partial repeals in Whitecliff, Inc. v. United States, 210 Ct.Cl. 53, 536 F.2d 347 (1976), cert. denied, 430 U.S. 969 (1977), and in Fiorentino v. United States, 221 Ct.Cl. 545, 607 F.2d 963 (1979), cert. denied, 444 U.S. 1083 (1980).
The doctrine of strict construction is subject to some abatement when it is perceivable that rigorous application of it would deny a constitutional right. Russian Volunteer Fleet v. United States, 282 U.S. 481, 491 (1931). See Califano v. Sanders, 430 U.S. 99, 109 (1977). But the doctrine of strict construction is not one of those that receive mere lip service. It will not go away, it does mean business, and it does mean us. Our decision, Mitchell I, is somewhat tainted by the fallacy that plaintiffs must be entitled to recover because they have no other remedy. So far as the claims are constitutional, this is a factor, otherwise, it is not. As said in United States, v. Testan, 424 U.S. 392, 403 (1976), being *25without a remedy in the Court of Claims is not the same thing as being without a remedy simpliciter. Defendant points out the plaintiffs had the benefit of the unrestricted consent to injunctive and declaratory adjudications in 5 U.S.C. §702. As to tribal claimants, the historic policy of Congress, uniformly adhered to up to 1946, was itself to deal directly with tribal claims and refer only selected ones to the courts under ground rules for adjudication expressly spelled out for the case. As regards individuals, consents are broader and have existed longer, but there can be no pretense that the government can be sued in every class of case where a private corporation could be sued, Mr. Lincoln’s stated ideal.
II
We turn now to the technique for applying the doctrine of strict construction to the class of case here involved. The Supreme Court in its Mitchell refers us to what it considers the leading opinion on this, United States v. Testan, supra. The provision of the General Allotment Act that we had relied on stated that the involved allottees’ lands were to be held in trust for "the sole use and benefit of the Indian to whom the allotment is made.” The reliance was held mistaken because as a matter of substantive law the quoted words did not impose on the United States the obligation to manage the allotments. Reference to the legislative history showed the purposes were to prevent alienation and shield against state taxation, purposes not inconsistent with the Indians managing the timber harvest themselves. The Court wanted us to reexamine the entire complex of law relied on by the Indians, to see whether the necessary, substantive law and consent to suit can be spelled out from them.
The Court, in Testan, puts aside the cases of contract litigation, illegal retention or withholding of money (including tax cases), and fifth amendment takings. There may be other instances where the Testan analysis does not apply. I do not think the list of exclusions was meant to be complete. Except for the exclusions, which whatever they are, obviously do not include either the Testan or the Mitchell *26claims themselves, the analysis appears to demand three elements in a valid consent to be sued, as follows:
The claimant must show statutes creating or recognizing—
(a) a substantive right;
(b) to recover money damages;
(c) within the jurisdictional coverage of the Tucker Act.
Claimants in Testan wanted their federal positions reclassified upward and the Court conceded, as did defendant, that they had a substantive right to proper job classification, though enforceable otherwise than by money damages in the Court of Claims. The error of this court was in mistaking this substantive right for a congressional mandate to effectuate its enforcement in back pay. What was missing was element (b), an unequivocal expression by Congress that the misclassification, when found, was to be rectified by back pay in the form of damages. This serves to differentiate the Testan case from Mitchell, where a careful reading of Justice Marshall indicates that element (a), the substantive right, was the one missing.
The Testan analysis purports to derive from, and cites with approval, our case, Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967), in which, however, this sharp distinction between substantive right and authority to award damages for its violation is not drawn. In Eastport we said, 178 Ct.Cl. at 606, 372 F.2d at 1008 "some specific provision of law [that] embodies a command to the United States to pay the plaintiff some money, upon proof of conditions which he is said to meet,” is what is required in the category of cases not involving illegal exaction. This could allow the claimant to refer to a specific provision of law which, however, only authorizes payment of money by implication, and further down the page we say the right to money may be granted "in terms or by implication,” citing authority. This latter gloss cannot be said to be approved in Testan. Applying retroactively a Testan analysis to the Eastport claim, it appears that claim was for pecuniary injury resulting from unexcused delay in issuance of a license. Our opinion points out how common injury of that kind must be, and how remarkable, if it were *27compensable, there were not court decisions and statutory provisions dealing with the problem. Actually, the claim seems to be for misgovernment, i.e., for misfeasance in the exercise of peculiarly governmental functions, as to which Mr. Lincoln never advocated liability, for it involves issues that could not arise between private litigants. Recently we denied a similar claim on the treble grounds it was for misgovernment, it was barred by the "sovereign act” doctrine, and it was not consented to under the Eastport analysis. City of Manassas Park v. United States, 224 Ct.Cl. 515, 633 F.2d 181, cert. denied, 449 U.S. 1035 (1980). Thus it appears the Eastport decision is no longer a safe guide to the strict construction doctrine unless regard is had to the refinement upon it introduced in Testan. And the refinement, obviously, is a new stress on specificity in element (b), that what is required, outside the Tucker Act, is a statutory statement that, for the breach of right involved, the claimant be authorized to recover "money damages.” In Eastport the claim being deficient in element (a), substance, the degree of specificity required for element (b) was not addressed except in dictum. In Testan the substantive right was conceded and thus element (b) became decisive for application of strict construction. The "substantive right” is no longer enough. I would not deny the possibility of element (b) being satisfied by a strong implication, but I think the implication should be in the mind of Congress, not the court’s alone.
Defendant, however, went much too far, implicitly in its briefs, and expressly in oral argument, in demanding almost complete tautology between the Tucker Act and the other legislation examined in strict construction analysis. The Supreme Court assuredly never intended to say that the other legislation, the source of the substantive right, must duplicate the Tucker Act in specifying that a lawsuit is consented to, still less in what tribunal. The best evidence of that is that Testan cites with approval, as a properly consented suit, Selman v. United States, 204 Ct.Cl. 675, 498 F.2d 1354 (1974), when the other legislation referred to consisted of the provision of 37 U.S.C. § 202(1) to the effect that an officer in plaintiffs category is entitled "to the basic pay of a rear admiral (lower half) or brigadier general, as *28appropriate.” This is all the Supreme Court refers to or our opinion below, and the Back Pay Act, 5 U.S.C. § 5596, does not apply to military pay. Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979). In Sanders defendant initially had relied on Testan but conceded its jurisdictional constraints were satisfied when plaintiffs claim for judicial promotion was removed from the case. It is, of course, clear that before or after Testan, a military pay case in this court must not claim the pay of a position never held. Nonpromotion to or nonselection for a position never held normally is, if wrongful, misgovernment only. Rawlins v. United States, 225 Ct.Cl. 367, 646 F.2d 459 (1980) is not contrary to this because it construes a special jurisdictional act, Private Law No. 95-60. It is time for defendant to cease and desist from urging Testan as a bar to military and other pay cases claiming pay for positions actually held. The Supreme Court obviously never intended to withdraw jurisdiction over a class of case where legislation other than the Tucker Act can be said, in Eastport terminology, to "mandate compensation” in money. The references in Testan, therefore, to "money damages” in connection with rights created outside the Tucker Act does not mean the other legislation must speak in terms of a lawsuit. It is a shorthand way of saying the other legislation must mandate the payment of money in terms readily expressible as money damages in case the mandated duty is not performed.
Where the statute, 25 U.S.C. §§ 406, 407, and regulations, authorize defendant to sell timber from allotted land held by it in trust, receive the proceeds and pay them over to the beneficial owners or dispose of proceeds for owners’ benefit, subject to charge for administrative expenses, this in my view mandates the payment of money and, with the Tucker Act, by a Testan analysis consents to a suit by an owner for proceeds not paid over to him or properly subtracted for administrative expenses. The amount recoverable on this theory would be limited by Testan analysis to the gross amount of proceeds received less proper credits and would not include consequential damages. Defendant in its July 28, 1980, brief at 52 recognizes the clear difference between claims of this character and those in the category of "mismanagement” and will not be astonished by the *29distinction I draw. I do not agree with defendant, however, that claims as stated above are only in Eastport category 1 as illegal exactions. They belong in the other Eastport category as the funds were not illegally exacted but were rightly collected. However, I will not be technical: funds of this nature may belong in both categories.
Mason v. United States, 198 Ct.Cl. 599, 461 F.2d 1364 (1972), rev’d, 412 U.S. 391 (1973), stands as a precedent as regards assent to suits to recover for misapplication of trust funds required by law to be paid to Indians or applied for their benefit. The misapplication there was in using trust funds to pay taxes we believed not due. The„ reversal was on grounds not here involved. Testan was still in the future. However, by Testan analysis the defendant was substantively a trustee of funds in its hands, and was specifically required to pay them over sooner or later to the Indians, less proper deductions, which, by Testan analysis, is with the Tucker Act unequivocal assent to the suit. The defendant did not contest jurisdiction on the grounds that subsequently prevailed in Testan and it would appear, properly did not. The statement, however, that the government is liable by implication of the Osage Allotment Act to pay compensation for any breach of trust to the pecuniary disadvantage of a noncompetent Osage allottee (198 Ct.Cl. at 617, 461 F.2d at 1374) is too broad and is contrary to the rule that assent to suit "cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969), as construed in Testan and Mitchell.
Claims by Indian allottees for excessive charges against timber revenues for administration survive Testan analysis and there may be others.
In this case we also may have jurisdiction of fifth amendment taking claims where defendant has made use of portions of allotments for roads, or prevented harvesting of some portions to furnish screens for camp sites, etc. The court points out correctly the defenses that may prevail, as that the taking was unauthorized, but this does not affect jurisdiction per se.
*30ill
Plaintiffs refer us to statutes other than the General Allotment Act, supra, 25 U.S.C. §§ 406 and 407, as amended, which authorize owners to sell timber with consent of the Secretary of the Interior. In effect, defendant sells pursuant to powers of attorney obtained from allottees. The proceeds are paid the owners. Timber is to be sold according to the principle of sustained yield, under regulations the Secretary is to prescribe. Regulations have existed since 1911 and they tell how sales are to be effected in great detail. The Bureau of Indian Affairs (BIA) supervises everything. Plaintiffs say the BIA failed to collect sufficient revenues from loggers, and allowed clear cutting of large, contiguous areas, instead of sustained yield. Clear cutting is somewhat the opposite of sustained yield. The BIA failed to make adequate provision for new growth or to regulate cutting for continuous production, failed to make comprehensive long range plans, failed to locate logging roads to minimize erosion, and failed to provide a sawmill on the reservation so the Indians could receive profits and wages therefrom.
Under 25 U.S.C. §§ 349, 372, defendant was authorized to issue fee patents to Indians whom it found fit to manage their own affairs. But some patents were issued to Indians incompetent to manage their own affairs. Other fee patents were issued without adequate provision to protect access to remaining "landlocked” allotments.
Under 25 U.S.C. §§ 318a and 323-325, defendant was to grant rights of way across trust lands, with consent of the involved Indians and payment of compensation. Defendant failed to obtain fair market value for rights of way, failed to obtain proper consent of Indian landowners, improperly deducted road maintenance costs from "stumpage” payments to Indians, and failed to require restoration of some rights of way to original condition.
Some of the alleged mismanagement under this head may be stated as a taking claim and is covered by comment supra.
Under 25 U.S.C. § 162a the Secretary was to invest tribal funds and obtain the best income available. This plaintiffs say was not done.
*31I concede that plaintiffs have met the first Testan requirement. Though apart from the General Allotment Act they have not pointed to any statute that speaks in terms of trusteeships, they have alleged the existence of legal duties owed to them and breach of such duties by defendant, as a matter of substantive law. It is obvious, however, that such allegations do not meet the second test, because they do not unequivocally allege an obligation to pay money, as a semantically separate and analytically independent proposition. It does not advance us any towards a conclusion that defendant has consented to be sued for money damages for the kinds of malfeasance and misfeasance alleged, to say defendant is a trustee, unless we also allege that the sanctions created by law against an ordinary, e.g., a testamentary trustee, are implied as a matter of law against defendant. But a sanction only implied by law is not "unequivocally expressed.” Actually there is kind of a bootstrap quality of reasoning in saying that defendant’s duties expressed by law are those of a trustee, and, therefore, we may look at Scott on Trusts or the Restatement of Trusts and impose on defendant all the other consequences the law, as stated by those authorities, derives from the status of an erring nongovernmental trustee. Therefore, my conclusions do not address, and I do not consider, whether defendant is a trustee as to any or all of the legal duties involved, despite the absence of legislation saying so.
Defendant in managing the property of its Indian wards was held to be exercising high governmental powers immune from judicial interference at least as long- as it "purported” to act fairly. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This we transmuted into a "good faith effort” test in Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 182 Ct.Cl. 543, 390 F.2d 686 (1968), but still the test was satisfied though the shrinkage of the Indian property was considerable. That case came under the favorable observation of the Supreme Court in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). The Three Affiliated Tribes were paid for homestead lands without interest under the sections of the Indian Claims Commission Act, 25 U.S.C. § 70 and ff, which enforce moral *32claims, which sections do not apply here, as the Supreme Court notes in Mitchell, supra. The federal power over Indian lands is so different in nature and origin from that of a private trustee and the necessity of an Indian Claims Commission Act was so well recognized where mismanagement of trust land occurred, that caution is taught in using the mere label of a trust plus a reading of Scott on Trusts to impose liability on claims where assent is not unequivocally expressed. And it is certainly at least arguable that mismanagement of Indian lands'is really more assimiláble to misgovernment, by a Lone Wolf analysis, than it is to the misfeasance of a testamentary trustee.
This court so repeatedly cites the recent Supreme Court case of White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), as to give the impression, quite wrongly, that somehow the case supports the court’s conclusions. It does, to be sure, consider and describe the scheme we must deal with here, of government control of the harvesting and sale of Indian-owned timber. But the dispute dealt with was entirely different. It was whether the State of Arizona can license and tax a motor carrier engaged wholly in activities on the Reservation using Indian or United States Government-owned roads in logging, or hauling harvested logs. Held, the government regulatory scheme is so pervasive as to shoulder away the state, which performs no pertinent service. Certainly no private trustee could preclude state taxation in this manner and the holding thus appears to be that the federal role is different from that of a private trustee in kind as well as degree. Lone Wolf v. Hitchcock and its progeny are not cited or referred to but the opinion seems to be in the same tradition. This pervasive control over Indian life is such a high attribute of the federal sovereignty that ordinary law is precluded or lessened in its impact.
This court has already unanimously held that the trust label cannot be used as a substitute for unequivocal assent to suit when the alleged breach of trust was committed by Congress itself. Menominee Tribe of Indians v. United States, 221 Ct.Cl. 506, 607 F.2d 1335 (1979), cert. denied, 445 U.S. 950 (1980). When that case was decided, the precedents in this court still stood, that breaches of trust by executive *33branch officials were assented to per se as a subject of money claims. Now that we are required by remand to reexamine them, it is impossible to overlook language in the Menominee decision that would have indicated caution in the other cases if it had been decided before them. Certainly the absence of unequivocal assent to be sued, noted in Menominee, is a feature Mitchell shares as to the mismanagement claims. In our attack on the consent problem in Menominee, we proceeded "first of all” to say—
* * * On the premise issue [consent to suit] now presented, we have nothing at all express in the statutes but only some general and ordinary words which can possibly be stretched to cover the claim, but need not necessarily be so understood. * * * [221 Ct.Cl. at 517, 607 F.2d at 1342.]
This is Testan analysis and Testan itself is cited for it. The contrast is then drawn with the Indian Claims Commission Act when the consent was so much more wide-ranging, liberal, and explicit in the words it used. It is not intended to suggest, however, that the other distinctions urged between that case and our Mitchell and Duncan v. United States, 220 Ct.Cl. 1, 597 F.2d 1337 (1979), vacated and remanded, 446 U.S. 903 (1980) decisions, then standing as valid precedents, were not valid when made.
Accordingly, I would hold that the mere application of a trust label to certain governmental functions respecting Indians, whether applied expressly by Congress or by judicial wish-fulfillment inference from the statutory imposition of trustee-like duties on the executive branch, does not constitute unequivocal assent to suits against the government for money damages when these duties are badly performed. It does not bring into play all that Scott on Trusts thunders against an erring testamentary trustee. Something more is required, such as the expressed duty to pay over money as stated in Part II of this concurrence and dissent.