with whom COMPTON, Chief Justice, joins, dissenting.
I cannot agree with a construction of 25 U.S.C. § 410 that effectively leaves indigent Natives without access to legal counsel when challenging a trespass to their allotment lands. I therefore dissent from Section III.3 of the court’s opinion.
By its terms, § 410 immunizes proceeds from the “sale or lease” of a restricted Indian allotment. The principal question posed by this appeal is thus whether Tabbytite’s trespass and condemnation judgment constitutes the proceeds of a “sale or lease.”
The court relies on the fact that “[a]n award of compensation for land which is forcibly conveyed in a condemnation action can readily be categorized as money accruing from a sale of the land in question” and “damages for the precondemnation use of land are analogous to lease proceeds” to hold that Tabbytite’s award is protected. The difficulty with this approach is not that the court has given the wrong answer, but that it has asked the wrong question. In my view, this case does not require an inquiry into the essence of a lease, or an investigation into whether their inherent natures include a condemnation award. Obviously, sale and lease proceeds and condemnation awards share similarities and differences. Whether it is the similarities or the differences which predominate will depend on the circumstances of the particular case. For some purposes, it is the similarities which are relevant. Thus Justice Cardozo has concluded that the lease value of land is a handy measure of the damages to be awarded upon condemnation. Jackson v. State, 213 N.Y. 34, 106 N.E. 758 (1914). The United States District Court followed this approach when calculating Tab-bytite’s award. However, the fact that an analogy was useful does not mean that condemnation is the equivalent of a sale or lease in all circumstances and for all purposes. In each case, whether the simile is appropriate will depend on the ends to be served by the rule being applied.
Here we must ask whether treating a trespass as a lease is consistent with the policies underlying § 410. That statute was intended to preserve the financial security afforded to an individual Indian by an allotment. Preventing Vitale from asserting his attorney’s lien obviously increases the amount of allotment-derived money that Tabbytite will retain. Thus the court cites Matter of City of Nome, 780 P.2d 363 (Alaska 1989), where we invoked the rule that ambiguities in a statute are to be resolved in favor of the Indians. See id. at 367.
I endorse the rule, see id. at 370 (Rabinowitz, J., dissenting), but not the way it has been applied here. An outcome that is favorable for the individual Indian litigant may not always be beneficial for Indians as a group. Indeed, sometimes the interests will conflict. So much was acknowledged by the Supreme Court of the United States in Negonsott v. Samuels, 507 U.S. 99, 110, 113 S.Ct. 1119, *11501125-26, 122 L.Ed.2d 457 (1993), when it rejected the appeal of an Indian defendant charged with shooting another Indian on a reservation. The defendant challenged the state’s assertion of criminal jurisdiction under the Kansas Act, arguing that the Act should be construed in his favor (and against state jurisdiction). Id. at 104, 113 S.Ct. at 1122-23. The court rejected such an approach, finding “no reason to equate ‘benefit of dependent Indian tribes’ ... with ‘benefit of accused Indian criminals,’ without regard to the interests of the victims of these crimes or of the tribe itself.” Id. at 110,113 S.Ct. at 1125 (quoting Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976)). In other words, what is beneficial for the individual Indian will not always be good for the tribe. When interpreting a federal Indian statute, the first question to ask must always be which construction is consistent with the policies animating the legislation, in light of the federal government’s trust relationship toward Indians. See United States v. Mitchell, 463 U.S. 206, 226, 103 S.Ct. 2961, 2972-73, 77 L.Ed.2d 580 (1983); Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942). See also Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L.Rev. 1213, 1214-15 (1975).
Here there can be no argument that preventing Indians from entering into enforceable contingent fee agreements to protect their interests in allotments is at cross purposes with the allotment statutes. In this regard, I find the Ninth Circuit’s reasoning in Arenas v. Preston, 181 F.2d 62 (9th Cir.1950), compelling. That case addressed whether 25 U.S.C. § 345, which authorizes a suit by an Indian to acquire an allotment, also precludes enforcement of a lien on the property by the litigating attorney. Id. at 66. The court had no difficulty dismissing such a construction, noting that:
When the United States authorized [actions for allotments], it did so knowing that the Indian by himself was incapable of taking advantage of the privilege and that attorney fees and other expenses would be the unavoidable concomitant. It also knew that the Indian litigant, with few exceptions, was without the means to meet the necessary expenses. It seems to us that Congress could not have intended to commit the subject to its courts with any paralyzing limitation but, in committing the subject to its courts it intended them to fully exercise their general equitable jurisdiction [to enforce attorney’s fee agreements].
Id. at 66-67.
This reasoning applies with equal force in this case. By immunizing sale and lease proceeds, Congress sought to protect the Indian’s interest in the allotment. But if § 410 prevents the destitute Native injured by a trespass to his or her allotment lands from entering into a valid fee agreement, it will effectively preclude the Indian from protecting his or her interest in the property. Few attorneys will assume the risk of taking on the suit when even a successful outcome offers no guarantee of remuneration. Indeed, were today’s ruling already fixed as precedent when Tabbytite first approached Vitale in 1976, he too might well have declined to take her case. Tabbytite lacked the resources to pay an attorney out of her own pocket; her only means of inducing Vitale to represent her was by promising him a portion of a potential judgment. By declaring that agreement unenforceable, the court’s decision will inevitably prevent future Tabby-tites from securing counsel in like cases. Section 410 cannot be construed in a way that defeats its own ends, that undermines the Indian’s ability to defend his or her interest in the allotment. I would hold that Vitale may enforce his hen against Tabbytite’s condemnation award.1
. I agree with Sections III.l and 2 of the court's opinion.