We revisit here the multi-faceted litigation brought in 1967, in the Court of Claims, by the Menominee Tribe of Indians (and some of its members and representatives), as a result of their dissatisfaction with the Menominee Termination Act of 1954, Pub.L. No. 399, ch. 303, 68 Stat. 250, as amended, 25 U.S.C. § 891-902 (1970). A sketch of the background of the suit is given in the unanimous in banc opinion of the Court of Claims in Menominee Tribe of Indians v. United States, 221 Ct.Cl. 506, 607 F.2d 1335, 1337-39 (1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980), which passed upon "the general issue of whether the United States is liable to appellees for breach of trust on account of the enactment and putting into effect of the Termination Act", 607 F.2d at 1338. Before us now is one aspect of the overall suit — the so-called "Deed Restrictions" claim, involving appellees' challenge to the restrictions on the future use and disposition of the Menominee lands which were established by the termination plan adopted and put into effect under the Termination Act.

[¶ 31] Citing a Court of Claims's decision, the United States contends that the Court lacks jurisdiction over plaintiffs' breach-of-trust claim for enactment of the 1998 Act. See Menominee Tribe v. United States, 221 Ct.Cl. 506, 607 F.2d 1335, 1344 (1979), cert. denied, 445 U.S. 950 (1980) (distinguishing between an action for a breach of trust based solely on the enactment of a valid statute and actions for breaches of trust resulting from the actions of government officials in violation of a valid statute). This argument is premised on the ground that the 1998 Act is constitutional, because the Court of Claims carefully distinguished constitutional challenges to congressional acts from non-constitutional breach-of-trust claims based on enactment of congressional acts.

Plaintiffs therefore seek a separate trial to detail and to supply proof of such expenses. The five earlier opinions published are: Docket No. 134-67 (Basic), filed July 19, 1978, vacated with instructions, 221 Ct.Cl. 506, 607 F.2d 1335 (1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980); No. 134-67-A (Deed Restrictions), filed March 22, 1979, remanded by order of June 13, 1980, republished on reconsideration January 2, 1981; No. 134-67-B (Forest Mismanagement), filed April 4, 1980; No. 134-67-C (Mill Mismanagement), filed August 14, 1980; No. 134-67-D (Highway Rights-of-Way), filed January 27, 1981. Section 6 of the Menominee Termination Act deals with limited reimbursement of termination expenses.

II [3] Background This particular case has some, but limited, connection with the Menominee Termination Act of 1954, as amended, 25 U.S.C. § 891-902 (1970), which was the main focus of the Court of Claims' decision in Menominee Tribe of Indians v. United States, 607 F.2d 1335, 221 Ct.Cl. 506 (1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980) (" Menominee Basic") and of our decision in Menominee Tribe of Indians v. United States, Fed. Cir. 1983, 726 F.2d 712 (" Menominee Deed Restrictions"). The present claim is a charge of governmental mismanagement of the Menominee forest for the 10-year period beginning July 10, 1951, with an alleged impact on the forest lasting into the post-termination date of the trial below. Plaintiffs' claim for redress of alleged mismanagement begins with the date of the settlement (July 10, 1951) of prior Menominee litigation concerning the forest management ( Menominee Tribe of Indians v. United States, 118 Ct.Cl. 290 (1951)).

But the current claims, which arose after 1946 and were filed here in 1971, are controlled by the narrower provisions of 28 U.S.C. § 1491 and 1505. See Menominee Tribe of Indians v. United States, 221 Ct.Cl. 506, ___, 607 F.2d 1335, 1340-41 (1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980). For recovery (as we said in Part II, supra), a statute or authorized regulation must clearly mandate compensation.

D. The Menominee Tribe Exception As a final jurisdictional issue, the court raises sua sponte the question of whether plaintiffs' suit is barred by Menominee Tribe v. United States, 607 F.2d 1335 (Ct.Cl. 1979). In Menominee Tribe, the Court of Claims was concerned with a statute terminating a trust for the benefit of the Menominee Tribe.

Whatever may be the proper reading of that statement by the trial court, it was not part of the court's main opinion on this issue, and in any event it is clear that an Act of Congress cannot constitute a breach of trust for which relief can be obtained from the Court of Federal Claims. See Menominee Tribe of Indians v. United States, 221 Ct.Cl. 506, 607 F.2d 1335, 1339, 1344-45 (1979). For these reasons, we conclude that the answer to the second of the certified questions in this case — whether Congress, through the enactment of the 1980 Act, terminated any trust created by the Appropriations Acts — is yes.

As the Claims Court must realize, the United States can still be held liable where, even though it acts within the scope of its constitutional or legal authority, its conduct is less than fair or honorable to Indian tribes. Minnesota Chippewa Tribe v. United States, 11 Cl.Ct. 221, 240 n. 9 (1986) ("It is clear that the existence of a law in itself is not a defense to a clause 5 claim."); see Menominee Tribe of Indians v. United States, 607 F.2d 1335, 1341, 221 Ct.Cl. 506 (1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980); Seminole Nation v. United States, 492 F.2d 811, 821 n. 11, 203 Ct.Cl. 637 (1974). The Claims Court erred in its conclusion that a navigational servitude is unquestionably dominant over other concerns, including a "fair and honorable dealings" cause of action, and by failing to perform "a judicial inquiry into the facts and circumstances" of this case in light of the moral cause of action.

Acceptance of the Band's theory would require us to conclude that if the United States government had not voluntarily acknowledged that the termination of the Hopland Rancheria was improper, the Band was powerless to bring suit to prove a wrongful termination under the Act. Cf. Menominee Tribe of Indians v. United States, 607 F.2d 1335, 1345 n. 22, 221 Ct.Cl. 506 (1979) (Court of Claims has jurisdiction to hear cases alleging violation of termination statutes), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980). But it makes little sense to conclude that the Band could only bring an action for wrongful termination once the government acknowledged the wrongful termination because, at that point, the Band would no longer need to sue to prove that.

Lambert, loc. cit. note 1 supra, 503. "Plenary Power," 236, gives 1953 as the date the policy of termination emerged. A disastrous illustration of this policy is afforded by the Menominee Termination Act of June 17, 1954, 68 Stat. 250 discussed in Menominee Tribe of Indians v. U.S., 607 F.2d 1335, 221 Ct.Cl. 506 (1979). By the Act of December 22, 1973, 87 Stat. 770, the Menominees were restored to tribal status.