                                                                        October 30, 1979


79-79       MEMORANDUM OPINION FOR THE
            ASSISTANT ATTORNEY GENERAL, LAND
            AND NATURAL RESOURCES DIVISION

            Indians—Offset by Government of Claims Arising
            Out of Gratuitous Payments—Authority of
            Attorney General to Withdraw Offset


   This responds to your request for our opinion concerning the authority
of the Attorney General to withdraw claims for gratuitous payments made
by the Federal Government under the Indian Self-Determination and
Education Assistance Act, 25 U.S.C. § 450 et seq. (1976) (Indian Self-
Determination Act). The facts are as follows:
   The Indian Claims Commission has previously determined under the In­
dian Claims Commission Act, 25 U.S.C. § 70 et seq. (1976), that the plain­
tiffs in Turtle M ountain, Board o f Chippewa Indians et al. v. United
States. Ct. Cl. Dock. 113, 191, 221, 246, had aboriginal title to land that
had the fair market value of $53,527.22 in February 1905, the date on
which such title was extinguished by the United States. Accordingly, the
Commission entered an interlocutory award in this matter in favor of the
plaintiffs.* Your Division, which is representing the Government in this
case, has concluded that certain payments totaling approximately
$7,000,000 made to the plaintiffs under the Indian Self-Determination
Act, 25 U.S.C. § 450 et seq. (1976), are gratuitous expenditures that
under 25 U.S.C. § 70a (1976) may be asserted by the Government as off­
sets against the interlocutory award.
   The Department o f the Interior (Interior) has requested that the Depart­
ment of Justice withdraw its asserted offset for certain payments made
under the Indian Self-Determination Act. In support of its request, In­
terior advances several arguments. It objects to your conclusion that pay­
ments made under that Act were gratuitous payments within the meaning



  •This case is now in the C ourt o f Claims. It was transferred to that court when the C om ­
mission was dissolved on Septem ber 30, 1978, under 25 U .S.C . § 70v-3 (Supp. II, 1978).

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of 25 U.S.C. § 70a. It also contends that if these payments can be
characterized as gratuitous expenditures under 25 U.S.C. § 70a (1976),
such a result was not intended by Congress in enacting the Indian Self-
Determination Act. Interior argues that had this possible consequence
been brought to the attention of Congress, it would have exempted such
payments from treatment as gratuitous expenditures. Finally, it requests
that, in light of Congress’ inadvertence in not exempting such payments,
the Department of Justice exercise its prosecutorial discretion and
withdraw the offset.
   The questions that you have asked are the following: whether it is man­
datory under § 2 of the Indian Claims Commission Act to pursue a claim
for gratuitous offsets, with respect to which there is a likelihood of
recovery; where the executive department administering a grant program
is of the view that funds expended were never intended to be available as
offsets, whether it is proper as a matter of discretion for the Attorney
General not to pursue the offset; and if question 2 is answered in the affir­
mative, who is authorized to make the determination and on what basis.
   Because you have not asked us to address the question whether pay­
ments made under the Indian Self-Determination Act are gratuitous ex­
penditures within the meaning of 25 U.S.C. § 70a (1976), we do not ex­
press any opinion on this question. For the purposes of this discussion,
therefore, we assume as correct your statement that, if the Government
presses its claim for offsets before the Court of Claims, there is a
reasonable likelihood that it will succeed.
   For the reasons set forth below, we conclude that the Attorney General
has the discretion to withdraw the Government’s claim for gratuitous off­
sets on policy grounds. In this instance, the decision to approve the
withdrawal may be made by the Associate Attorney General.

        I. Discretion o f the Attorney General to Withdraw Claims
                              Made in Litigation

   It is an established principle of law that the “ Executive Branch has ex­
clusive authority and absolute discretion to decide whether to prosecute a
case.” United States v. Nixon, 418 U.S. 683, 693 (1974). This authority
has long been recognized as vested in the Attorney General as the Presi­
dent’s surrogate in enforcing the laws and was formally delegated by the
President to the Attorney General in 1933:
      As to any case referred to the Department of Justice for prosecu­
      tion or defense in the courts, the function of decision whether
      and in what manner to prosecute, or to defend, or to com­
      promise, or to appeal, or to abandon prosecution or defense,
      now exercised by any agency or officer is transferred to the
      Department of Justice. [Executive Order 6166 § 5, reprinted in 5
      U.S.C. § 901 note (1976).]

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This delegation, together with 28 U.S.C. § 516 (1976), which reserves to
officers of the Department of Justice under the direction of the Attorney
General the conduct of all litigation to which the Government is a party,
have been interpreted consistently by both the courts and the Attorney
General as vesting the Attorney General with absolute discretion to deter­
mine whether to compromise or abandon claims made in litigation on
behalf of the United States. United States v. Newport News Shipbuilding
& Dry Dock C o., 571 F.(2d) 1283, 1287 (4th Cir. 1978), cert, denied, 99 S.
Ct. 212 (1979); United States v. Cox, 342 F.(2d) 167, 171 (5th Cir. 1965),
cert, denied, 381 U.S. 935 (1965); 38 Op. A tt’y Gen. 98 (1934), 38 Op.
Att’y Gen. 124 (1934).
   Referring to the Attorney General’s power to control litigation, At­
torney General Cummings stated:
     This power is plenary and carries with it the authority to make it
     effective, including authority to consider all matters germane to
     any case ovtr which the Attorney General has obtained jurisdic­
     tion * * * . He may dismiss a suit or abandon defense at any
     stage when in his sound professional discretion it is meet and
     proper to do so. [38 Op. A tt’y Gen. at 126.]
This power, however, is “ to be exercised with wise discretion and resorted
to only to promote the Government’s best interest or to prevent flagrant
injustice.” 38 Op. A tt’y Gen. 98, 102 (1934). The courts have recognized
that the Attorney General, in exercising his discretion, is not restricted to
considering only the litigative probabilities, but may make a decision to
abandon a claim based on policy reasons. See, Smith v. United States, 375
F. (2d) 243, 247 (5th Cir. 1965), cert, denied, 389 U.S. 841 (1967); Cox v.
United States, supra. Given this bacFgrourid'concerning the discretion of
the Attorney General, we next consider whether the Attorney General’s
power to withdraw the claim has been limited by the Indian Claims Com­
mission Act.

 II. Discretion o f the Attorney General to Withdraw Claims for Offsets
     Made in Proceedings Under the Indian Claims Commission Act

   Neither the Indian Claims Commission Act nor its legislative history in­
dicates any intent on the part of Congress to limit the Attorney General’s
broad power to withdraw claims made by the United States. The only pro­
vision in the Act that could be so construed is 25 U.S.C. 70n (1976)
authorizing the Attorney General to compromise claims presented to the
Commission and requiring him to obtain the Commission’s approval of
any compromise. It could be argued that in granting the Attorney General
the power to compromise claims presented to the Commission, Congress
intended to deny him the power to withdraw claims asserted on behalf of
the United States. However, such an interpretation has no support in the

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Act’s legislative history. Moreover, because 25 U.S.C. §§ 70n and 70u pro­
vide for the submission of the compromised claim to Congress for pay­
ment, a more reasonable interpretation of 25 U.S.C. § 70n would be that
the authority requiring the approval of the Commission applies only to
claims presented by Indian claimants. We adopt this interpretation as cor­
rect and conclude that the Attorney General’s broad power to control the
disposition of Government’s claims made under 25 U.S.C. § 70a (1976) in­
cluding counterclaims, offsets, and gratuitous offsets, is not limited by the
Act, and this power may be exercised on policy grounds. The standard
governing his decision is whether the disposition would “ promote the
Government’s best interest or * * * prevent flagrant injustice.” 38 Op.
A tt’y Gen. 98, 102.

                   III. A s to the Exercise o f Discretion

   Your second question, inquiring whether it is proper as a matter of
policy to withdraw the Government’s claims on the ground that the
Department of the Interior never intended that the funds expended under
the Indian Self-Determination Act be considered as offsets, is not an ap­
propriate question for this Office. Whether the competing policy con­
siderations in this matter warrant withdrawal of particular claims for off­
sets is not a legal question, but rather presents a policy question that
should be resolved by the appropriate officers in the Department of
Justice. Because of the magnitude o f the claim for offset and the policy
questions involved, Department of Justice regulations require that any
proposed withdrawal of the claim be forwarded to the Associate Attorney
General for review and final action, along with your recommendations to
that effect and a report on the matter. 28 CFR 0.164, 0.165 (1978).

                                       Leon U lm an
                           D eputy Assistant A ttorney General
                                                 Office o f Legal Counsel




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