concurring and dissenting:

While I concur fully in the majority’s conclusion that the dismissal of plaintiffs’ requests for mandamus and injunctive relief was appropriate, I dissent from its conclusion that Tucker Act jurisdiction is present in this case.

The sole issue on this appeal is whether the United States has waived sovereign immunity to suit. Since the Tucker Act, upon which this suit is based, is “only a jurisdictional statute,” and “does not create any substantive right enforceable against the United States for money damages,” United States v. Testan, 424 U.S. 392, 398 , 96 S.Ct. 948, 953 , 47 L.Ed.2d 114 (1976), it is necessary to look beyond the Tucker Act’s grant of jurisdiction to find a separate statute that “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Id. at 400 , 96 S.Ct. at 954 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 [Ct.Cl.1967]). It is that statute that provides the necessary waiver of sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 , 100 S.Ct. 1349, 1352 , 63 L.Ed.2d 607 (1980).

I am in full agreement with the proposition that “a legislative declaration of trust status for a particular fund is itself a congressional mandate, fully consistent with the Testan-Eastport standard discussed above, that the United States assume financial responsibility for its failure adequately to perform its fiduciary obligations.” Whiskers v. United States, 600 F.2d 1332, 1335 (10th Cir. 1979), cert. denied 444 U.S. 1078 , 100 S.Ct. 1028 , 62 L.Ed.2d 761 (1980). Because that declaration of trust status is, ipso facto, a waiver of sovereign immunity, *1285 however, it “cannot be implied but must be unequivocally expressed.” See United States v. Mitchell, supra, at 538 (quoting United States v. King, 395 U.S. 1, 4 , 89 S.Ct. 1501, 1502 , 23 L.Ed.2d 52 [1969]).

I find no such unequivocal declaration that the Southern Paiute minors’ share of the judgment fund was to be held in trust in this case. The conclusion of the majority to the contrary is based upon an unconvincing patchwork of analogy and implication. Even if each portion of the majority’s analysis were persuasive, however, it could not support the finding that sovereign immunity is waived. See id. Nowhere does the majority profess to find the type of conclusive, unequivocal legislative declaration of trust that would justify its conclusion. This is not surprising, for no such declaration appears to exist.

The Tenth Circuit found that to be true in the case of Whiskers v. United States, supra, which is clear authority for the proposition that the Southern Paiute judgment fund is not held in trust. Whiskers v. United States, supra, at 1335. The plaintiffs in Whiskers sought damages for the government’s alleged failure to enroll them as eligible recipients of the judgment fund under Section 1 of the Distribution Act. In holding that there was no jurisdiction to review the alleged breach of duty, the Whiskers court squarely held that neither the Appropriations Act nor the Distribution Act created a trust. Id. at 1335, 1336 . The fact that the Whiskers court did not expressly discuss Section 6 of the Distribution Act, the section at issue in the instant case, is unimportant. Its conclusion that a violation of Section 1 was not actionable was based entirely on its finding that the Distribution Act did not create a trust. That holding therefore applies here to indicate that a violation of Section 6 is likewise not actionable because the allotted funds were not held in trust.

Independent examination of the language of Section 6 in an effort to find Congressional intent to create a trust reveals that the Tenth Circuit’s conclusion was correct. Reading that section of the enactment “with that conservatism which is appropriate in the case of a waiver of sovereign immunity,” Mitchell v. United States, 664 F.2d 265, 268 (Ct.Cl.1981) (quoting United States v. Sherwood, 312 U.S. 584, 590 , 61 S.Ct. 767, 771 , 85 L.Ed. 1058 [1940]), no clear intent to create a trust is apparent. Section 6 merely provides that the sums due the Southern Paiute minors “shall be paid in accordance with such procedures as the Secretary determines will best protect their interests, including the establishment of trusts.” (Emphasis added). It is significant that Congress named “the establishment of trusts” as one method by which the Secretary could “best protect” the minors’ interests. If Congress itself had intended to create a trust by enacting Section 6, the inclusion of language allowing the Secretary to establish trusts would be redundant.

The fact that the language regarding the establishment of trusts is couched in permissive terms is significant for another reason as well. The Secretary has been given unfettered discretion in the handling of the minors’ share of the judgment fund. There is no clear indication what shall constitute proper management of the fund; similarly, it is difficult to tell what shall constitute mismanagement. Had Congress intended to create a trust, the Secretary’s discretion would have been limited by 25 U.S.C. §§ 161a, and 162a, but since the creation of trusts has been left to the judgment of the Secretary, no enforceable duties have been prescribed. “No trust is created unless the settlor manifests an intention to impose enforceable duties.” Restatement (Second) of Trusts § 25 (1959).

Although it is thus clear that the Distribution Act was not intended to create a trust, but merely to confer discretion upon the Secretary to handle and distribute the funds as he saw fit, the majority has proceeded to examine several other statutes and principles of law in the apparent quest for an implication or analogy that would *1286 justify its conclusion. It is my position that neither implication nor analogy will support a finding of a waiver of sovereign immuni-r ty; furthermore, I also dispute the validity of each of the arguments relied upon.

It has often been said that the relationship of the United States to the Indians resembles that of a guardian to his ward, which is admittedly a fiduciary relationship. In the words of the Whiskers court: “This point is not without some appeal and, indeed, it is entirely accurate as a general proposition.” Whiskers v. United States, supra, at 1337. Recognition of this truism is insufficient to imply the existence of fiduciary duties owed by the United States to the Indians in the absence of a clear legislative mandate to that effect, however. The Testan-Eastport requirement that a specific statute granting a substantive right to compensation in damages be found before sovereign immunity is waived cannot be satisfied by taking note of the protection afforded Indians by the United States. Id. As a panel of this court has stated:

Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959) (footnotes omitted). 1

Another general proposition relied on by the majority is the idea that Indian funds held or controlled by the federal government are always held in trust absent language to the contrary, and even if no mention of a trust or fiduciary relationship is made in underlying statutes. In this context, a presumption in favor of the existence of a trust relationship is tantamount to a presumption in favor of a waiver of sovereign immunity. Such a presumption derogates the long-established rule that such a waiver be clear and unequivocal, in that no affirmative statement of Congress would be required to subject the government to suit. 2 If the .trust status of Indian funds is to be interpreted as granting a substantive right to damages for breach of fiduciary duties under Testan , it is necessary that there be a clear indication that Congress intended that status. No such indication is present in the *1287 case before us. The silence of Congress on the question cannot be read as granting the Southern Paiute minors the substantive right to recover damages on a breach of trust theory.

Nor is any clear indication of Congressional intent to create a trust present in the allegedly analogous statutes cited by the majority. As stated above, analogous authority does not provide the unequivocal language necessary for a waiver of sovereign immunity. Furthermore, neither of the statutes cited by the majority can be applied to the Southern Paiute judgment fund.

Title 25, United States Code, Section 676a governs distribution of the Ute Indian judgment fund, which was appropriated by the Second Supplemental Appropriations Act— the same act that appropriated the Southern Paiute fund. Section 676a expressly refers to the Ute fund as a “trust fund,” although the Appropriations Act had made no such distinction. Compare 25 U.S.C. § 676a with H.R. 7091, 89th Cong., 1st Sess., reprinted in [1965] U.S. Code, Cong. & Ad. News 90, 111. Reference to the Ute fund as a “trust fund” is argued to indicate Congressional understanding that all Indian funds appropriated by the Second Supplemental Appropriations Act are held in trust.

Similarly, the enactment of Title 25, United States Code, Section 1407 is also relied upon as an indication that Congress implicitly assumed that all Indian funds were held in trust, since that statute provides that funds distributed per capita or held in trust are not to be taxed. Section 1407 is part of an enactment aimed at, inter alia, expediting the distribution of Indian judgment funds, H.Rep. 93-377, 93d Cong., 1st Sess., reprinted in [1973] U.S. Code, Cong. & Ad. News 2311, 2313, and was enacted several years after the Distribution Act at issue in this case. Although it therefore has no application to the Southern Paiutes, it is nonetheless relied upon by the majority to find that the Southern Paiute Distribution Act created a trust.

The statutes referred to above indicate only that (1) the portion of the funds appropriated by the Second Supplemental Appropriations Act and earmarked for the Ute Indians were held in trust, and (2) those funds distributed pursuant to Chapter 16, Title 25, United States Code, Section 1401 ei seq., were not to be taxed or be considered as income for welfare eligibility purposes. Application of either statute to the Southern Paiute fund is impermissible in that it ignores the well-established rule that the granting of a substantive right to recovery, which in turn constitutes a waiver of sovereign immunity, must be clear and explicit.

In conclusion, it is apparent that nowhere in the language of the Distribution Act did Congress indicate that it intended a trust to be created, which would have, by definition, included the right to recover for breach of fiduciary duty. The general principal that the Indians are wards of the government and entitled to protection, while accurate in a broad sense, does not compel a finding that Congress intends to create a substantive right each time it enacts a piece of legislation dealing with the Indians. The rule in United States v. Testan, supra, constituting as it does a standard by which to judge potential waivers of sovereign immunity, requires strict construction. Analogy and implication have no place in its application. See United States v. Mitchell, 445 U.S. 535, 538 , 100 S.Ct. 1349, 1352 , 63 L.Ed.2d 607 (1980).

I would affirm the decision of the District Court in toto.

. Skokomish was a trespass and quiet-title action brought by Indians who had acquired treaty rights to certain tidelands in the State of Washington. The tribe alleged that the State of Washington had conveyed certain rights in the land to defendants in violation of the treaty. The language quoted above is contained in the appellate court’s affirmance of the district court’s decision not to require the United States to join as a party plaintiff.

. I have examined with care the decisions relied upon by the majority for this proposition, and I do not feel that they apply to this case in light of the position I have taken. Not only would application of those decisions to these facts constitute a presumption in favor of a waiver of sovereign immunity, it would represent an attempt to judicially legislate the creation of a trust relationship.

The courts must use great care when Congressional intent is sought to be derived from other than the specific language of a statute, lest what professes to be mere rendering becomes creation. Where that language expresses a reasonably clear intent, or lack thereof, to create a certain result, that language must be accepted without modification by resort to construction or conjecture. It is not within the judicial function of a court to supply omissions in a statute even though that which was omitted may have been omitted by oversight or inadvertence. Judicial conjecture as to what Congress may have intended by its omission of certain language is necessarily based on the result the court wishes to achieve.

What the majority apparently wishes to achieve in this case is a waiver of sovereign immunity through the existence of a trust relationship. I am in sympathy with Judge Nichols of the United States Court óf Claims when he states that such a finding is often nothing more than a “strong and clear wish on the judge’s part.” See Mitchell v. United States, 664 F.2d 265, 277 (Ct.Cl.1981) (Nichols, J. concurring and dissenting). The advisability or desirability of a liberal construction of sovereign immunity in the context of Indian judgment funds is not for the courts to determine. Along with Judge Nichols, “I cannot join in efforts to achieve this result by judicial fiat.” Id.