406 U.S. 128
92 S.Ct. 1456
31 L.Ed.2d 741
AFFILIATED UTE CITIZENS OF the State of UTAH et  al., Petitioners,v.UNITED STATES et al.
No. 70—78.
Argued Oct. 18, 1971.
Decided April 24, 1972.
Rehearing Denied June 12, 1972.

See 407 U.S. 916, 92 S.Ct. 2430.
Syllabus
The Ute Partition Act was designed to provide for the partition and distribution of the tribe's assets between the mixed-blood and full-blood members; for termination of federal supervision over the trust and restricted property of mixed-bloods; and for a development program for the full-bloods with a view toward terminating federal supervision of them. In addition to cash and land, the tribe owned oil, gas, and mineral rights (principally oil shale deposits underlying the reservation) and unadjudicated and unliquidated claims against the Government. The Act provided that upon publication of the final membership rolls, the tribal business committee (representing the full-bloods) and the mixed-bloods' 'authorized representatives' were to start dividing assets that could be practicably distributed, based upon the relative number of persons in each group, with a further plan to be prepared for distributing the mixed-bloods' assets to individual members. After each mixed-blood had received his distributive share, federal restrictions were to be removed except as to the remaining interest in tribal property. The assets not practicably distributable were to be jointly managed by the committee and the mixed-bloods' representatives. Under the Act, the mixed-bloods, by way of selecting their representatives, organized the Affiliated Ute Citizens (AUC) as an unincorporated association, which, as authorized by the statute, created the Ute Distribution Corp. (UDC) to manage (jointly with the committee) the oil, gas, and mineral rights and unad-judicated or unliquidated claims against the Government as part of the plan for distributing assets to individual mixed-bloods. UDC issued 10 shares of its stock in the name of each mixed-blood and made an agreement with First Security Bank of Utah (the bank) for the bank to become the UDC stock transfer agent, the bank to hold the stock certificates and issue receipts to the shareholders. Under UDC's articles, a mixed-blood shareholder desiring to dispose of his stock prior to August 27, 1964, had to give first-refusal rights to tribe members absent which no stock sale was valid. A sale could be made to a nonmember only if no member accepted the offer, and the price could be no lower than that offered to members. The UDC certificates were to bear a stamp revealing these conditions, along with a caveat that the certificates did not represent ordinary corporate shares; that the stock's future value could not be determined; and that the stock should be retained for the shareholder's benefit. Upon the sale to a nonmember, the seller was to furnish an affidavit to the reservation superintendent stating the amount he received. The federal trust relationship involving the divided assets contemplated by the Act was terminated by proclamation of the Secretary of the Interior effective August 27, 1961. Auc Case. AUC, acting for itself and its 490 mixed-blood members, in April 1968 sued the United States for a pro rate distribution to the individual members of the mixed-bloods' 27% of the mineral estate underlying the reservation and for a determination that AUC and not UDC was entitled to manage that property jointly with the committee. Jurisdiction was asserted under 25 U.S.C. § 345 and 28 U.S.C. §§ 1399 and 2409. The District Court granted the Government's motion to dismiss, and the Court of Appeals affirmed. Reyos Case. In February 1965, a group of mixed-bloods (12 of whom were selected as 'bellwether plaintiffs' for initial trial purposes) sued the bank, two bank employees (Gale and Haslem) and (under the Tort Claims Act) the United States, charging violations of the Securities Exchange Act of 1934 and the SEC's Rule 10b—5, which prohibits 'any device, scheme, or artifice to defraud' in connection with securities transactions. The claimed violations involved plaintiffs' sales of UDC shares in 1963 and 1964 (some made before and some after August 27). The District Court, inter alia, found that mixed-bloods had sold 1,387 shares of UDC stock to nonmembers, Haslem buying 50 shares (after August 27, 1964) and Gale 63 (44 before that date and 19 after). The 12 plaintiffs sold 120 shares, Gale buying 10 and Haslem six. Thirty-two other whites bought shares from mixed-bloods during the 1963—1964 period. In 1964—1965 mixed-bloods sold shares at $300 to $700 per share, while the price range on transfer between whites was $500 to $700. Gale and Haslem received various commissions for their services in connection with transfers of UDC stock from mixed-bloods to nonmembers, solicited contracts for open purchases of UDC stock on bank premises during business hours, and prepared the necessary affidavits and other papers, using, at best, 'informal' procedures. The District Court concluded that the Government had reason to know of the sales to non-Indians and failed to perform its duty to the mixed-bloods to discourage and prevent the sales; that Gale and Haslem had devised a scheme to acquire for themselves and others UDC shares at less than their fair value; and that the bank had notice of the employees' improper activities. The court found that each of the defendants (with certain exceptions applicable to the Government) was liable to each of the 12 plaintiffs, and assessed damages by using a $1,500-per-share value for the UDC stock as of the times of the sales. The court reached that figure after taking account of the oil shale deposits underlying the reservation, along with gas, coal, and other minerals; petitioners' remaining interests in an Indian Claims Commission award; unadjudicated claims against the Government; the specific prices for UDC share sales by mixed-bloods to whites; the fact that mixed-bloods (who were under heavy selling pressure) were not so well informed about the stock's potential value as were whites; the influence of Gale's and Haslem's improper activities on selling prices; opinion evidence as to worth above $700 per share; and other factors. The measure of damages for each seller, the court held, was the difference between the fair value of the UDC shares at the time of sale and the fair value of what the seller received. The Court of Appeals reversed in substantial part, holding that after the 1961 termination the Government owed petitioners no duty in connection with the UDC stock sales; that Gale and Haslem were liable only where they personally purchased shares for their own accounts or for resale to an undisclosed principal at a higher price, but not in other instances, where their actions were held to be only ministerial; and that the bank's liability did not extend beyond Gale's and Haslem's. The District Court's valuation of the UDC stock was held to lack record support, and the proper measure of damages was held to be 'the profit made by the defendant on resale' or, absent a resale, 'the prevailing market price at the time of the purchase from the plaintiffs.' A petition for certiorari covering both the AUC case and the Reyos case was granted. Held:
The AUC Case
1. The AUC case was properly dismissed for want of jurisdiction as an unconsented suit against the United States. Pp. 141—143.
(a) Though under 25 U.S.C. § 345, the Government has consented to suits to enforce an Indian's right to an allotment of land, the AUC's claimed interest in the mineral estate has not been made subject to an allotment. Pp. 142—143.
(b) Title 28 U.S.C. §§ 1399 and 2409 are inapplicable, since those provisions confer jurisdiction with respect to partition suits where the United States is a tenant in common or a joint tenant, which is not the situation here. P. 143.
2. The UDC and not the AUC is entitled to manage jointly with the full-bloods the oil, gas, and mineral rights underlying the reservation. P. 143—144.
The Reyos Case
3. The Ute Partition Act and the 1961 termination proclamation ended federal supervision over the trust and the mixed-bloods' restricted property, including the UDC shares, and the right of first refusal specified in the UDC corporate articles created no duty on the Government's part to the terminated mixed-bloods seeking to sell their shares. Pp. 149—150.
4. The Court of Appeals correctly determined that Gale and Haslem violated Rule 10b—5 by making misstatements of material fact, namely, that the prevailing market price of the UDC shares was the figure at which their purchases were made, but the court erred in holding that there was no violation of the Rule unless the record disclosed evidence of reliance on the misrepresentations. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of his decision. Pp. 150—154.
5. The bank's liability is coextensive with that of Gale and Haslem. P. 154.
6. The correct measure of damages under § 28 of the Securities Exchange Act of 1934 is the difference between the fair value of what the mixed-blood seller received for his stock and what he would have received had there been no fraudulent conduct (except where the defendant received more than the seller's actual loss, in which case the defendant's profit is the amount of damages). Pp. 154—155.
7. The District Court's valuation of $1,500 per UDC share has adequate record support. Pp. 155—156.
10 Cir., 431 F.2d 1349, affirmed; 10 Cir., 431 F.2d 1337, affirmed in part, reversed in part.
Parker M. Nielson, Salt Lake City, Utah, for petitioners.
A. Raymond Randolph, for respondent United States, pro hac vice, by special leave of Court.
Marvin J. Bertoch, Salt Lake City, Utah, for respondents First Security Bank of Utah, N.A., and others.
Mr. Justice BLACKMUN delivered the opinion of the Court.


1
These two consolidated cases center in the Ute Indian Supervision Termination Act of August 27, 1954 (hereafter Partition Act), 68 Stat. 868, as amended, 70 Stat. 936 and 76 Stat. 597, 25 U.S.C. §§ 677—677aa; the Securities Exchange Act of 1934, 48 Stat. 881, as amended, §§ 3(a)(4) and (5), 10(b) and 15(c)(1), 15 U.S.C. §§ 78c(a)(4) and (5), 78j(b) and 78o(c)(1); the emergence of Affiliated Ute Citizens of the State of Utah (AUC), an unincorporated association, and of Ute Distribution Corp. (UDC), a Utah corporation; and the alleged victimization of Indian shareholders in their sales of UDC shares.


2
* Background


3
The Ute Partition Act1 pertained to the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah. At the time of the Act's adoption the tribe had a membership of about 1,765,2 consisting of 439 mixed-bloods3 and 1,326 full-bloods. Section 1 of the Act stated its purpose, namely 'to provide for the partition and distribution of the assets of the . .. Tribe . . . between the mixed-blood and full-blood members thereof; for the termination of Federal supervision over the trust, and restricted property, of the mixed-blood members of said tribe; and for a development program for the full-blood members thereof, to assist them in preparing for termination of Federal supervision over their property.' 25 U.S.C. § 677. The thenestimated value of the cash, accounts receivable, and land owned by the tribe was $20,702,885.4 The tribe possessed additional assets consisting of oil, gas, and mineral rights (principally oil shale deposits underlying the reservation), and unadjudicated and unliquidated claims against the United States.


4
Section 8 of the Act, 25 U.S.C. § 677g, called for the preparation of the rolls of full-blood members and mixed-blood members, and for the finality of those rolls. Section 5, as amended, 25 U.S.C. § 677d, provided that upon the publication of the final rolls 'the tribe shall thereafter consist exclusively of full-blood members,' and that mixed-blood members 'shall have no interest therein except as otherwise provided' in the Act.


5
Section 10, 25 U.S.C. § 677i, stated that when the final membership rolls had been published, the tribal business committee, representing the full-bloods, and the 'authorized representatives' of the mixed-bloods were to 'commence a division of the assets of the tribe that are then susceptible to equitable and practicable distribution.' This was to be based 'upon the relative number of persons comprising the final membership roll of each group.'5 Upon the adoption of a plan of division, the mixed-bloods were to prepare a further plan for the distribution of their group's assets to the individual members. § 13 of the Act, 25 U.S.C. § 677l. After each mixed-blood had received his distributive share, directly or in whole or in part through the device of a corporation or other entity in which he had an interest, federal restrictions were to be removed except as to any remaining interest in tribal property, that is, the unadjudicated or unliquidated claims against the United States, gas, oil, and mineral rights, and other tribal assets not susceptible of equitable and practicable distribution. § 16, 25 U.S.C. § 677o. The Secretary of the Interior then was to issue a proclamation 'declaring that the Federal trust relationship to such individual is terminated.' § 23, 25 U.S.C. § 677v. Those assets, such as the mineral estate, excepted from the division plans, were to be 'managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group.' § 10, 25 U.S.C. § 677i.


6
Section 6 of the Act, 25 U.S.C. § 677e, authorized the mixed-bloods to organize, to adopt a constitution and bylaws, and to provide, by that constitution, for the selection of authorized representatives with power 'to take any action that is required by (the Act) to be taken by the mixed-blood members as a group.'


7
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