Full opinion text
HOWELL, Judge. This is an appeal by the Pawnee Indian Tribe of Oklahoma from a final determination of the Indian Claims Commission, dated July 14, 1950 (Indian Claims Commission Docket No. 10). On the eight claims presented in appellant’s petition filed with the Commission under and pursuant to the Act of August 13, 1946, 60 Stat. 1049, 25 U.S.C.A. § 70 et seq., the Commission determined that appellant was entitled to recover specific amounts under claims numbered 6 and 7, and was not entitled to recover on the remaining six claims. This appeal is from the Commission’s final determinations on the first seven claims. Claims 1, 2, 3, and 4 Appellant’s first claim is for just compensation under Section 2(1) of the Indian Claims Commission Act, for a strip' of land consisting of approximately one million acres located in north-central Kansas. Section 2(1) of the Act provides in part as follows: “The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe * * *: (1) claims in law or equity arising under the Constitution * * * ” It is appellant’s position that this land belonged to the Pawnee Tribe by virtue of aboriginal Indian title, and that the land was taken by the United States and assigned to the Delaware Tribe of Indians under the Delaware Treaty of September 24, 1829, 7 Stat. 327, without the consent of the Pawnees and without the payment to the Pawnees of any consideration. Appellant’s second, third and fourth claims are asserted under Section 2(3) of the Indian Claims Commission Act, which provides in part as follows: “The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe * * * (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of * * * unconscionable consideration * * *. ” Appellant urges that the consideration received by the Pawnee Tribe for land ceded to the United States under three separate ratified treaties of cession was grossly inadequate and unconscionable within the meaning of the above quoted provision. The second claim concerns the Treaty of October 9, 1833, 7 Stat. 448, whereby the Pawnees ceded to the United States “all their right, interest, and title in and to all the land lying south of the Platte river.” This cession is alleged to include the strip of land covered by the first claim. Roughly, the area of land so ceded is claimed by appellant to be bounded on the north by the Platte River in Nebraska, on the west by the line established by the Fort Laramie Treaty of September 17, 1851, 11 Stat. 749, on the south by the Arkansas River in Kansas, and on the east by a line beginning about 30 miles east of the Great Bend of the Arkansas River and running north-east to a point just east of where the Loup Fork of the Platte enters the Platte River. The amount of land included in this claim is alleged to be approximately 23,000,000 acres, for which the United States paid $119,000. The third claim arises out of the Treaty of August 6, 1848, 9 Stat. 949, whereby the Pawnees ceded to the United States “all their right, title, and interest in and to” certain described land which included Grand Island, Nebraska, in the Platte River, and a strip of land paralleling the Island on the north bank of that river. The treaty included a map or plat of the area ceded which appellant alleges contains approximately 110,418 acres of land for which the United States paid $2,000. The fourth claim arises out of the Treaty of September 24, 1857, 11 Stat. 729, whereby the Pawnees ceded to the United States “all their right, title, and interest in and to all the lands now owned or claimed by them, except as hereinafter reserved, and which are bounded as follows, * * There followed a description of the lands ceded in Nebraska, and a provision for a reservation in such lands. Appellant claims that the cession included at least 10,500,000 acres of land for which the tribe received less than five cents per acre. The Indian Claims Commission made the following statement in denying claimant’s first four claims: “ * * * that the claimant tribe is not entitled to recover on its first, second, third, and fourth causes of action for the reason that it has not been established that the Pawnee Tribe of Indians actually occupied and exclusively used and possessed any definite portion of the lands claimed under their first four causes of action, nor, was their exclusive occupancy and possessory right or title therein recognized or acknowledged by the defendant at the time the treaties of October 9, 1833, August 6, 1848, and September 24, 1857, were negotiated and concluded.” In its preliminary discussion of appellant’s right to recover on the first four claims, the Commission was of the opinion that on the issues raised in the first four causes of action, “the first question to be determined is whether the claimant has established by the evidence that it had original Indian title to any of the land involved in the first four claims, at the time it was taken by or ceded to the United States.” It was apparently the Commission’s conviction that appellant had failed to establish a prima facie case with respect to any of the first four claims because it had failed to sustain the burden of proving, by a preponderance of the evidence, its exclusive use and occupancy to any of the lands involved. In this appeal, appellant does not dispute the Commission’s concept of the nature of the causes of action involved in the first four claims, nor the Commission’s resulting position as to the burdens of proof. Appellant merely contends that the Commission’s adverse findings of fact are not based on substantial evidence within the meaning of Section 20(b) of the Indian Claims Commission Act. In a brief filed by the anñci curiae on September 10, 1952, the argument is advanced that the Commission erred as a matter of law in requiring appellant to initially establish as part of its prima facie case for unconscionable consideration arising in connection with a ratified treaty of cession and limits, that it actually owned and occupied to the exclusion of all other tribes, the area of land described and ceded in such ratified treaty, in the same manner as a claimant is required to establish its “Indian title” to land claimed to have been taken. The position was taken that a claim for unconscionable consideration is contractual in nature, that the ratified treaty of cession creates a presumption of title in the party ceding the land, and that such presumption can only be rebutted by affirmative proof on the part of the Government that the area of land shown on the face of the treaty as having been ceded, was not so ceded, thus rendering the consideration paid for the land actually ceded, if any, not unconscionable. For reasons which will appear hereinafter, we do not reach, in connection with the first four claims, either the question whether the Commission’s findings of fact are based on substantial evidence, or the question raised by the brief amici curiae as to the nature of the causes of action involved in these claims and the resulting burdens of proof devolving on claimant and Government respectively. The latter matters were not called to the Commission’s attention, and if they are pertinent to the issues in this case, we believe they should be briefed to and considered by the Commission in the first instance. Claims 1 and 2 Because the land alleged to have been taken by the United States from the Pawnees in claim 1 was later included in the area ceded to the United States under the Treaty of October 9, 1833, 7 Stat. 448, involved in claim 2, many relevant facts are common to both claims. The Commission treated the two claims together for that reason, and also because it supposed appellant had the same burden of proof to sustain' in each claim. The Commission found as an ultimate fact that the record did not support a finding that appellant owned any of the land encompassed in the first and second claims. The Commission’s findings of fact with respect to these two claims are numbered 1 through 8. Findings 1 and 2 relate to the composition of the tribe into four bands, and the boundaries alleged in plaintiff’s four claims to land north and south of the Platte. Finding 3 describes the origins of the tribe in the far south or southwest, its migration northward to the Platte Valley, the fact that the first contact of the tribe by the white man was in 1541 in central Kansas, and that Marquette located the Pawnees in the Platte River valley in 1673; that the Republican Band of Pawnees had its villages on the Republican River near the present Nebraska-Kansas line until 1809 when they moved up to join the others on the Platte River and the lower courses of the Loup fork. Finding 4 concerns the making of the Delaware Treaty of September 24, 1829, 7 Stat. 327, providing for the conveyance to the Delawares of land in the fork of the Kansas and Missouri Rivers for a permanent residence of that Nation, and for an outlet ten miles wide extending west along the northern boundary line of the Kansas Indian reservation. In subdivision (b) o-f the same finding, the Commission finds that the outlet strip “here claimed by the Pawnees, was within the territory ceded to the United States in 1825 by the Kansas Indians by Treaty entered into on June 3, 1825 (7 Stat. 244),” quoting the first’provision of the Kansas treaty containing the description of lands ceded to the United States, and providing for the setting aside of a part of it as a reservation for the Kansas Indians to be later surveyed and marked under the direction of the President. The Commission then found (c) that the United States claimed full and complete title to the land included in this “outlet” strip as a consequence of the Treaty of 1825 with the Kansas Indians. In finding 5(a) the Commission found that the Delaware Outlet was located in a territory that had been hunted upon and roamed over by a number of Indian tribes that were hostile to one another, and that the land had not been exclusively used and possessed by any one tribe for many years prior to September 24, 1829. The Commission further found (b) that in 1829 the four bands of Pawnees were living in permanent villages along the Platte and Loup Rivers in what later became the State of Nebraska, and that the Pawnee tribe did not, in 1829, actually occupy, use and possess, to the exclusion of other Indian tribes, any part of the outlet strip granted to the Delawares. This completes the Commission’s findings with respect to the ownership of the Delaware Outlet. Findings 6 and 7 relate to the Pawnee claim of ownership in the territory south of the Platte. The boundaries of the land claimed to have been ceded in the Treaty of 1833 are set forth above and include the portion of the Delaware Outlet involved in Claim 1. Finding 6(a) states that in 1833 and for several years prior thereto, there had been fighting among the Indians in the area south of the Platte and that the United States desired to restore order and peace in that area and to persuade the bands to give up the chase and change to agriculture because of the increasing scarcity of game. The Commission then sets forth the first three articles of the Pawnee Treaty of October 9, 1833, 7 Stat. 448, and finds that the area of land ceded to the United States by Article I was unsurveyed and its boundaries not described in the Treaty. The Commission next finds (7(a)) that on the date of the execution of the Treaty, one band of Pawnees occupied a permanent village on the south bank of the Platte, and the other three bands occupied permanent villages on the Loup River north of the Platte. The Commission then finds (b) that the record in the case does not establish that the Pawnees actually occupied, used or possessed, to the exclusion of other Indian tribes, any part of the lands lying south of the Platte River, except an undefined area of land included within their one village site on the south bank of the Platte. Aside from the quotations from the treaties, the Commission’s findings with respect to the first two claims contain no findings of primary or evidentiary facts upon which the ultimate findings 5(b) and 7(b) can be said to have been based. In its opinion, however, the Commission recites a number of facts not mentioned in the findings and which the Commission appears to have relied on in reaching its conclusion that the Pawnees never owned, used, or occupied exclusively, any of the land encompassed in the first and second claims. It states, as in the findings, that the Pawnees and other tribes had been fighting over the hunting grounds south of the Platte, and included in these claims. It refers to no authority for this statement, and mentions specifically, as one of the participants in the fights with the Pawnees, only the Delaware Indians. The Commission then states that the Pawnees were “also having trouble from attacks by the Sioux Tribe on the north” and that the United States, aware of this situation, planned the establishment of a general peace among these hostile Indian tribes. Next, the Commission refers to a letter, dated March 30, 1832, from “John Dougherty, Indian Agent, stationed at Fort Leavenworth Indian Agency,” to the Superintendent of Indian Affairs at St. Louis “regarding the ‘outlet’ strip granted the Delawares,” and notes that Dougherty reported the fact that the outlet led into the “heart of the country claimed by the Pawnees as their hunting grounds,” and recommended that the government extinguish the Pawnees’ claim to all their lands lying south of the Platte River. The Commission states that Dougherty recommended that until this particular land was assigned to an Indian tribe or tribes, it should be used as a common hunting ground in order to bring an end to the conflicts between the various tribes hunting on this land. Whether this is a valid interpretation of Dougherty’s letter, we shall discuss hereinafter. The Commission next points out that on October 8, 1833, Henry L. Ellsworth, Treaty Commissioner, met in council with the chiefs and leaders of the four Pawnee bands at the Grand Pawnee village on the south bank of the Platte. The Commission states: “The record does not disclose what instructions were given Ellsworth for negotiating the 1833 treaty, but the minutes of the Council meeting, dated October 9, 1833, reveal that one of the main objects in making the treaty was the restoring of peace among the Indian tribes in that area, and to effect the civilization of the Pawnee; Ells-worth also suggested that the Pawnees select delegates to accompany him to Ft. Leavenworth for the purpose of making peace with hostile tribes. Ells-worth advised the Pawnees that when .the United States gave the Delawares their land it was not known that the Pawnees claimed any part of it. He told the Pawnees the United States was willing to aid them in agriculture and give them goods if they would cede their interest in the land lying south of the Platte River, with the Pawnees being permitted to retain hunting privileges in the land with other friendly tribes until it was assigned to a tribe or tribes. The Pawnees were also anxious for peace, as shown by the talks of the Pawnee chiefs, and they appear to have understood they were ceding their interest in the land lying south of the Platte River.” The Commission then concluded that the extent of, or description of, the land ceded, or what part of it was owned by the Pawnees under Indian title, does not appear to have been considered or discussed at any time by Ellsworth, the Pawnees, or by John Dougherty, who was present during the treaty negotiations and who was a witness to the treaty. The Commission next states that Ellsworth transmitted the treaty and later forwarded the talks had with the tribe in council, “without comment so far as the record shows”; that the treaty was approved and ratified by the Senate without alteration and proclaimed on April 12, 1834. The Commission concluded that there was no indication that the Government or Ellsworth believed the Pawnees to have exclusively occupied any of the land ceded in 1833. In commenting upon the Dougherty letter of March 30, 1832, the Commission conceded that Dougherty apparently believed that the Pawnees claimed an area of land in the vicinity of the Delaware Outlet and had so claimed for many years, but noted that he made no reference to any definite area of land as being in the exclusive possession of the Pawnees. The Commission stated that there was no evidence that Dougherty’s report was based on any investigation made by him of the existing facts regarding Pawnee claims, and the Commission concluded by saying: “ * * * we do not believe his report can be accepted as decisive in a case as important as this, zuhere there is no other evidence to support it. His report did bring to the attention of the Government the fact that the Pawnees claimed as a hunting ground an area in the vicinity of the Delaware ‘outlet’ büt we do not believe that the general statements made by Dougherty can be considered as charging the United States with knowledge of or recognition of Pawnee ownership of any definite area of land south of the Platte River.” [Italics supplied.] A review of the record indicates first, that the Commission has apparently confined itself strictly to the material placed in evidence by way of exhibits, and when •passing on an exhibit which represents an excerpt from an official government document, the Commission has drawn inferences from the material contained in that excerpt without reference to the document as a whole. This practice has resulted in rendering the findings based upon such excerpts somewhat speculative in character, and the conclusions drawn therefrom doubtful in the light of the facts as revealed by the complete document. For example, in the case of the Dougherty letter of March 30, 1832, the Commission states that Dougherty in that letter first brought to the Government’s attention the Pawnee claim to the Delaware Outlet, that apparently no investigation had been made by him of such claim, and that the government had no knowledge of such a claim or any facts to support it other than the letter. These conclusions are not borne out by Executive Document No. 512 of which that letter is only a small part. Again, in discussing whether or not the Pawnee Treaty of October 9, 1833, was actually intended by the parties to have any bearing on. the Pawnee claim to the land in the Delaware Outlet, as well as whether or •not any definite area of land was understood by the parties as having been included in the cession, the Commission’s statements that Commissioner Ellsworth apparently had no instructions regarding the Outlet claim, or the purchasing of any land at all from the Pawnees, that the Treaty was forwarded without comment from Ellsworth to the Secretary of War, and that the treaty’s main purpose was to establish peace between the warring tribes, are also not borne out by Document 512, nor by House of Representatives Report No. 474 (23rd Congress, 1st Session) from which excerpts were also made and introduced in evidence by both parties and relied on by the Commission. We are of the opinion that the Commission was at liberty to, and, indeed, by virtue of the Indian Claims Commission Act, was under a duty to examine these documents in their entirety in order to determine all the facts and circumstances concerning the Outlet claim and the meaning of the 1833 Treaty. The Indian Claims Commission Act reflects the intent of Congress that the cases arising under that Act should be decided on a complete and full record concerning all the ascertainable facts. Realizing that many of the claims would be based on facts and circumstances concerning which there would be no possibility of testimony from living witnesses, and concerning which no accurate determinations could be made without reference to historical facts and ancient documents, Congress assigned an unusual and broad function to the Commission with respect to its investigatory powers wherever such an investigation was necessary to a proper determination of an Indian claim. Section 13(a) of the Act, 25 U.S.C.A. § 701(a), provides, among other things, for the taking and preservation by the Commission of the testimony of aged and infirm Indians whose knowledge of the facts of any of the claims filed might be of value.. Subsection (b) provides: “The Commission shall establish an Investigation Division to investigate all claims referred to it by the Commission for the purpose of discovering the facts relating thereto. The division shall make a complete and thorough search for all evidence affecting each claim, utilizing all documents and records in the possession of the Court of Claims and the several Government departments, and shall submit such evidence to the Commission. The Division shall make available to the Indians concerned and to any interested Federal agency any data in its possession relating to the rights and claims of any Indian.” Section 13(b) was first introduced as an amendment to H.R. 1198 at the suggestion of the Department of Interior. Its purpose was first explained in a letter dated June 11, 1945, from Secretary of Interior Harold L. Ickes, to Hon. Henry M. Jackson, Chairman, Committee on Indian Affairs, House of Representatives (Hearings before the Committee of Indian Affairs, House of Representatives, 79th Congress, 1st Session on H.R. 1198 and H.R. 1341, pages 113-115.) In commenting upon the then practice of presenting Indian claims to the Court of Claims under special jurisdictional acts, Mr. Ickes stated that in his opinion neither the attorneys for the Indians nor the attorneys ■ for the Government were equipped to handle efficiently and with dispatch the tremendous amount of research often necessary to properly, uncover all the facts pertinent to a claim; that much time and money were consequently wasted, and despite frequent duplication of research, incomplete records resulted. At page 114 of the Hearings, Mr. Ickes’ letter stated: “The Indian Claims Commission, proposed to be established by H.R. 1198 and H.R. 1341, is designed to end this largely futile waste of time and money by providing for a comprehensive examination and final determination of all those ' claims which merit settlement. It will result in an ultimate saving to the Government even though it may cost, during the few years of its existence, more in direct Federal outlay than the present method. Further, it will result in a substantial improvement in the Government’s present unsatisfactory relations with the Indians in this respect.” The draft indicating amendments to H.R. 1198 proposed by the Department of the Interior contained the following comment with respect to the new Section 13(b): “The second paragraph of the proposed amendment [b] provides for an Investigation Division to assist the Commission in discovering the facts relating to Indian tribal claims. This staff group would be in a position to make a careful search of the voluminous records relating to each Indian tribe or group of tribes for the purpose of locating, assembling, digesting, and collating the pertinent materials bearing upon the rights of the respective parties, including, of course, the United States. One reason for the long delays and heavy expense hitherto experienced in the trial of Indian claims has been the inordinate amount of work involved in searching through the massive accumulations of papers and accounts in the various depositories to find individual documents or items relating to the particular claim at issue. A systematic examination of the records as a whole by trained researchers would eliminate much duplicating and imperfectly done work, and' would be economical both of time and expense. Moreover, many of the outstanding tribal claims involve series of transactions so lengthy and complex as to make it essential that the Commission have assistants upon whom it can rely for an independent examination of the basic data. Under the proposed amendment the attorneys for both sides and other interested parties would be entitled to a full disclosure of the materials collected by the Investigation Division.” [Italics supplied.] [Hearings, p. 145.] At page 131 of the Hearings, Mr. Felix Cohen, Associate Solicitor of the Department of the Interior, made the same explanatory statement to the members of the Committee. There was no debate on this amendment, which met with the unanimous approval of the Committee. While neither H.R. 1198 nor H.R. 1341 were'enacted into law, during the following session, H.R. 4497 was introduced on October 25, 1945 in the House of Representatives, providing for the creation of an Indian Claims Commission, etc., and containing the amendment proposed and accepted during the prior session with respect to the establishment of a Division of Investigation to independently investigate the Indian claims on behalf of the Commission. In Senate Report No. 1715 (79th Cong., 2nd Sess.), made by Senator O’Mahoney from the Senate Committee on Indian Affairs to accompany H.R. 4497,’ and dated July 15, 1946, he made the following statement, at page 5, under his “Analysis of the Bill”: “This bill, as amended, proposes to create an Indian Claims Commission to investigate and determine the facts and the merits of Indian tribal claims against the United States existing prior to the passage of the act, and to report its findings with appropriate recommendations to Congress. “The Commission would be composed of three Commissioners, appointed by the President with the advice and consent of the Senate, and would be equipped with the usual powers of a fact-finding commission to hold hearings and to examine witnesses. The Commission is directed to establish an Investigation Division and to ‘make a complete and thorough search for all evidence affecting’ claims 'before it through the investigations in the field and in Government records.” Throughout the debates in both Houses of Congress, and in the discussions of the Senate and House Committees considering the various hills to establish an Indian Claims Commission, there is obvious the desire on the part of Congress to establish a means whereby Indian claims against the United States should be finally and expeditiously settled so that there would no longer be the necessity for the passage of' special jurisdictional acts, and with the hope that a fair and complete settlement of such claims would ultimately reduce the cost to the Government of aiding the .various tribes. It was anticipated that with the settlement of these claims, many Indians would abandon their connection with the tribes and their dependence upon the United States. It was intended, in order to effect this end, to give the Commission the broadest possible powers and to give it every facility to insure the most complete treatment possible of the claims. Section 13(b) of the Act was proposed by the Department of the Interior and adopted by the Congress as an important means for bringing about the desired results. We understand that the Commission has followed the Congressional direction and has established a Division of Investigation. Section 13(b) of the Act does not make mandatory the referral of every claim to the Division for investigation, but the clear intent and purpose of the Act would, we think, indicate the desirability of referring a case such as the present one, if not prior to the holding of hearings, then certainly after the far from adequate record was placed before the Commission by the parties. Congress contemplated the final settlement of these Indian claims on the basis of all the available facts, most of which are to be found in official government records or are matters of national history. Such an investigation can be, and was. intended to be, as valuable to the Government in its defense of such claims as to the claimants in their prosecution thereof. The record on which the Commission bases its final determination of any Indian claim may well be not only the record made by the parties, but that record supplemented, whenever necessary, by the results of the Commission’s own investigation into the facts of the case. Whether that investigation is made prior to, during, or after the hearing, in a particular case, or whether it is made at all, is left to the discretion of the Commission. While it is undoubtedly true that it is not every case that will require much in the way of an independent investigation by the Commission, this case appears to us to be one peculiarly in need of the application of Section 13(b) of the Act. An independent investigation into facts which are either. recorded in official government documents or are matters of national history, has been resorted to by both trial courts and appellate tribunals. In the case of Coffee v. Groover, 123 U.S. 1, 8, S. Ct. 1, 31 L.Ed. 51, the Supreme Court had to determine whether the assumption of the court below,' that the territory containing the land in controversy was ceded by Georgia to Florida, was well founded. 123 U.S. at page 11, 8 S.Ct. at page 6, the Supreme Court stated: “The case, if it can be avoided, ought not to be decided upon a narrow selection of facts which might determine the question one way, before one jury, to-day, and another way, before another jury, to-morrow; but upon a broad view of all the historical events which relate to this boundary line. We shall proceed, therefore, to review these events as far as they have come to our knowledge from public documents.” The Supreme Court then proceeded to review the claim in the light of facts contained in various documents not called to the attention of the court below and not considered by that tribunal in reaching its decision. Among the documents referred to by the Supreme Court were the American State Papers, Vol. I, of Public Lands; Treaties and Conventions between the United States and Other Powers (Washington, 1873); Ellicott’s Journal (Philadelphia, 1803; Andrew Ellicott was the Government Commissioner who, with a surveyor to assist him, marked the boundary line in May 1796, in conjunction with another Commissioner appointed by the Government of Spain) ; Senate Executive Documents (No. 77 and No. 152, 23rd Cong., 1st Sess.); and Resolutions and Enactments of the Florida and Georgia Legislatures. From all the. historical and documentary material referred to, technically outside the record, the Supreme Court concluded that the agreement between Florida and Georgia “was not in fact, and cannot be construed as, a cession of territory on the part of Georgia.” The judgment below was reversed for factual error and the cause remanded for further proceedings. To the same effect was the case of Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691, in which the Supreme Court referred not only to the sort of documents mentioned in the Coffee case, supra, but “refresh[ed] their memory and inform[ed] their conscience” by means of a series of unpublished letters between the Secretary of State and various persons, deeming such sources to be “most trustworthy”. 137 U.S. at page 216, 11 S.Ct. at page 85. In the case of Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456, in determining the correctness of the lower court’s factual determination as to the existence of civil war in Venezuela, the Supreme Court examined for the first time in the case, material in the Archives of the State Department, and on the basis of correspondence between the Secretary of State and the United States Minister to Venezuela, determined that a state of civil war did exist in that country and accordingly affirmed the judgment of the lower court. “That these were facts of which the court is bound to take judicial notice, and for information as to which it may consult the department of state, there can be no doubt.” 168 U.S. at page 253, 18 S.Ct. at page 85. In the case of the New York Indians v. United States, 170 U.S. 1, 18 S.Ct. 531, 42 L.Ed. 927, the United States Supreme Court reversed the judgment of this court against the Indians after a consideration of the record before this court, supplemented by material not called to this court’s attention by counsel for the parties, and not considered by this court in reaching the conclusion that the New York Indians had abandoned their claim tó certain Kansas lands.' Although the various documents considered by the Supreme Court were called to their attention, the Supreme Court might have considered theln without such prompting, on the authority of Jones v. United States, 137 U.S. 202, 214, 11 S.Ct. 80, 34 L.Ed. 691, cited by the court in support of its use of these documents. Accordingly, whether or not the Commission had taken judicial notice of historical facts and official government documents, published, or unpublished, and in the archives of the department concerned, as it might do under the general law applicable to this type of case, and as it was specifically authorized to do in its enabling legislation, this court is at liberty to examine and consider the facts contained in such sources in determining whether the Commission’s final disposition of these claims is warranted by all the available facts present in official government records. In reviewing the record on this appeal, we carefully examined all the material presented to the Commission by the parties and we became persuaded that many pertinent facts had not been called to the Commission’s attention. The absence of certain facts which, in a case of this kind would normally be expected to exist, was noted by the Commission in its opinion, i. e.; the lack of formal instructions to the various treaty commissioners who represented the Government in its negotiations with the Pawnees in 1833, 1848, and 1857; the lack of reports of investigations, if any, carried out by the treaty commissioners, and the lack of a formal report accompanying each of the treaties finally negotiated. We accordingly examined in their entirety documents from which excerpts had been submitted to the Commission, and documents referred to in the Archives List of Indian Treaty documents. We finally became convinced that the record physically before the Indian Claims Commission was entirely inadequate to form the basis for the just, equitable, and final disposition of the first five claims. For the convenience of the Commission, we shall summarize the material which we believe the Commission may wish to take into consideration in reconsidering these claims. The story of the Pawnee Indians and their relation to the Government of the United States begins with the Louisiana Purchase in 1803 and the Lewis and Clark Expedition in 1804. By that time the Government had already been faced with the problem of removing the Indians from the eastern states which, by then, were becoming thickly settled by its white citizens. Pursuant to legislative authorizations from time to time, the President had caused the negotiation of various treaties with the eastern Indians effecting the cession of their lands in the east to the United States in exchange for lands farther west. By 1800 it had become apparent that the lands assigned to the so-called emigrant tribes were not located far enough west, and it was realized by the Government that for the good of the white population as well as for the welfare of the Indian tribes, a territory much farther west would have to be found for the location of tribes already moved once, and for those who had not yet consented by treaty to give up their eastern possessions and remove inland. The acquisition of the large territory embraced in the Louisiana Purchase from France in 1803 was important, among other reasons, as a solution to the problem of finding a territory which might become a permanent home for the various Indian tribes. As noted by the Commission, the first major expedition to the Pawnees of which there is an official government record was that of Lewis and Clark in 1804. A report of that portion of the Expedition which investigated the tribes indigenous to the newly acquired territory, is to be found in American State Papers, Indian Affairs, Vol. I. At page 707 of the report there appears a “Statistical View of the Indian Nations inhabiting the Territory of Louisiana, and the Countries adjacent to its Northern and Western Boundaries.” Of help in evaluating appellant’s claim that it exclusively occupied as hunting ground in the manner that Indians occupy land, the land south of the Platte, are the “statistics” gathered by Lewis and Clark relative to the rivers on which their villages were situated in 1804, the places at which their trade with the whites was carried on, the Indians with whom they were at peace or at war, and the location of their hunting grounds. A study of the information gathered respecting the Pawnee tribes and the neighboring tribes of Osage, Kansas, Otoe and Missouri, and the Omaha Indians, reveals that the village locations of those tribes were approximately the same in 1804 as in 1833, and that they carried on their trade with the whites in the vicinity of their villages; that the Osage were at war with all other tribes; that the Kansas were at war with all tribes except, occasionally, the Otoes and Missouris; that the Pawnee tribes were at war with all tribes except the Otoes and Missouris and certain tribes residing in what later became Nebraska. As to hunting grounds, the report states that the Grand Pawnees hunted on the south side of the Platte River and on the “head of the Kansas” River in a country of which a great portion was said to be open plains interspersed with groves of timber. This would indicate a hunting ground in southern Nebraska and northern Kansas. The Pawnee Loups are reported to have carried on their hunt on the Wolf River (Loup Fork of the Platte) and on the Platte River, above the mouth of that river in what is now Nebraska. The Republican Band of Pawnees were reported to hunt on the Republican River in what is now southern Nebraska and northern Kansas. The Kansas Indian hunting grounds are described as being on the “upper part of the Kansas and Arkansas rivers” in what is now east central Kansas. The Osage are said to have hunted along the Arkansas and Osage .Rivers and nearly up to the Kansas River in southern Kansas. In American State Papers, Indian Affairs, Vol. II, Document No. 155 therein relates to treaties consummated around 1818 by the United States with various Indians in the area in question, including four separate treaties of peace and friendship made with the four bands of Pawnees in June, 1818. Document 155 contains a letter, dated July 9, 1818, from William Clark and Auguste Chouteau to Secretary of' War Calhoun, in which the Pawnees are described as a warlike and powerful tribe inhabiting the country in the vicinity of the Platte “stretching immediately between us and the Spanish settlements with whom they are now at war.” It was the writers’ opinion that, because of their great number and the commanding position they occupied in relation to the Missouri trade, and the “contemplated establishment at the mouth of the Yellow Stone river,” and because of the consequent ease with which they might “be sent down in force upon our extended western frontier,” the United States should cultivate their friendship “in conformity with the general policy of the ' Government.” Document 202 in the same volume of the American State Papers (18th Cong., 1st Sess.) dealt with a proposal to hold treaties with the tribes beyond the Mississippi for the preservation of the fur trade. Certain documents appearing in Document 202 had been communicated to the Senate on March 18, 1824 by Mr. Benton from the Committee on Indian Affairs. At page 451 appear the answers of Mr. R. Graham, United States Indian Agent, to questions put to him by the Senate Committee on Indian Affairs on February 10, 1824. Answering questions of the Committee relative to the United States’ trade with the Spanish in Santa Fe, Mr. Graham stated that such trade was subject to interruption on the Arkansas River by the “Comanches, Arrepahas, Pawnees, and Osages” who all crossed the Santa Fe trail in their hunting or wár parties and were likely to steal horses from the Santa Fe traders if they met up with them. Mr. Pilcher, another witness before the Committee, testified that among the tribes with which he was personally acquainted, were the four bands of Pawnees, “a very numerous tribe, whose villages are also on the river Platte, about one hundred and fifty miles from the Coun- cil Bluffs[the Otoes and Missouris had their villages on the Platte River also.] He mentioned the Sioux bands of Indians as having no fixed residence, but as wandering over a vast section of the country “on the right and left banks of the Missouri.” In 1824 Congress was considering the problem of extinguishing Indian title to lands in Missouri and removing such Indians west of the Missouri River. The Report of Mr. Benton from the Committee on Indian Affairs, stated in part, as follows: “The country immediately west of the State of Missouri and the Territory of Arkansas,-to the extent of several hundred thousand square miles, is owned by the Osages and Kanzas. Their ownership is merely nominal. They occupy no more than four or five points, where their villages are situated; all the rest is idle, or only used for hunting; for which purpose, it is becoming daily less valuable with the daily decrease of game. The acquisition of a part of this ground for the specific purpose of being assigned to other friendly Indians, it is believed, would not be a difficult task. A tract binding on the western boundary of Missouri and Arkansas, stretching from the Red river to the Missouri, with a breadth of say one or two hundred miles, might be divided'into portions suited to the numbers in each tribe, and a portion assigned to each. The Kanzas and Osages would, of course, retain a division suitable to themselves.” Document 218, 18th Cong., 2nd Sess., is a report to, the Senate on a plan for removing the several Indian tribes west of the Mississippi River. Included in this report is a letter, dated January 24, 1825, from Secretary of War Calhoun to the President stating that it would be necessary to acquire a sufficient tract of country west of Missouri and Arkansas for a permanent home for the tribes proposed to be removed; that the country between the Red and Arkansas rivers had already been allotted to the Choctaws; that the country north of the Arkansas and immediately west of the State of Missouri was then being held almost entirely by the Osage and Kansas Indians, and that the purchase of a portion of this land should be made soon. The Government was interested in acquiring a strip of land just west of the borders of Missouri and Arkansas for the resettlement of various emigrant tribes, including the Delawares, Kickapoos, Shawanees, Weas, and Piankeshaws. In his December 6, 1825 report on the expenditures of the Indian Department and the state of the Government’s relations with the several tribes, the head of the Office of Indian Affairs reported to the Secretary of War, among other things, that treaties of cession had been concluded with the Osage and the Kansas Indians and reservations secured to those tribes. In Document 226, dealing with a number of treaties concluded and sent to the President in January, 1826 (including the trade and friendship treaty of September 30, 1825, 7 Stat. 279, between the United States and the Pawnee bands), there is a letter from Brig. Gen. Atkinson and Indian Agent Benjamin O’Fallon, dated November 7, 1825, giving information concerning the various tribes with whom treaties had just been made. Speaking of the Otoes who resided on the Platte, 25 miles south of the Missouri, the writers said that the tribe went on the hunt twice a year “sometimes to the south, to kill buffalo; but most commonly of latter years, hunt on the Missouri, below the Platte, for elk, deer, etc., as the Pawnees make objection to their killing buffalo on their lands.” Of the Pawnees, the writers said they were a numerous and strong band, well armed and abundantly supplied with mules and horses, and that they “hold a prominent stand among their neighbors as a warlike and brave nation.” It was pointed out that the Pawnees were at peace with their neighbors and were enemies of the “Sioux, Osages, and other distant tribes. They cultivate corn, pumpkins, squashes, etc. They leave their villages in the spring and fall, and go far into the plains to the south, west, and northwest, in pursuit of buffalo, and succeed in supplying themselves with an abundance of the fle'sh of that ánimal for food, and their skins for robes.” The letter speaks of their friendship with- the whites and predicts that their good conduct will probably continue. Another letter appearing in this document, from William Clark to the Sec-, retary of War Barbour, recommends the location of the Delawares, Shawanees, Piankeshaws, Peorias, Weas, Senecas and Kickapoos on a strip of country, purchased from the Kansas and Osage, immediately west of Missouri. On this same subject Thomas McKenney of the Office of Indian Affairs, wrote to the Secretary of War (December 27, 1826) warning him that little was actually known of the new country where it was proposed to settle the emigrant tribes, and a .thorough exploration and investigation should be made to determine exactly how the indigenous tribes felt about having the emigrants moved into the lands recently ceded by the Osage and Kansas, and where they would become neighbors. Pursuant to the Act of May 24, 1828, 4 Stat. 315, appropriating money to defray the expenses of delegations of Choctaws, Creeks, Cherokees, and Chickasaws, “and such other tribes of Indians as may be disposed to send delegations west of the Mississippi for the purpose of exploring the unoccupied lands of the United States without the limits of the states and territories, preparatory to the final emigratipn of said Indians”, an expedition was organized, and delegations from the various tribes accompanied government representatives to visit the Osage and Kansas Indians, and examine the country available for assignment to the emigrants. This- country was located in what is now Kansas. Rev. Isaac McCoy, a Government surveyor, accompanied the expedition, and in a letter to the Secretary of War, dated January 29, 1829, he reported that the emigrant delegation liked the country but were disappointed at seeing no buffalo. McCoy stated that he later discovered their Osage guide and interpreter had deliberately not taken them the additional few miles necessary to find buffalo because of his-fear of Pawnee war parties. McCoy proposed that an Indian territory be established to be bounded on the north by the Niobrara and Missouri Rivers; on the northeast by the Missouri River; on the east by the states o-f Missouri and Arkansas, and on the south by the Red River. The western boundary of what McCoy considered to be “habitable land” was marked by a straight line running due north and south about 200' miles west of the eastern boundary of the proposed territory. He stated that he was exceedingly embarrassed by the fact that much of the land visited had already been assigned, and that actually little remained of the land acquired by cession from the Kansas and Osage Indians for assignment to new emigrants. It was McCoy’s opinion that' the assignments already made were too large in most instances and that, as a consequence, much of the assigned land would eventually have to be repurchased by the Government to be given to new emigrants. He deplored the practice of granting “outlets” to the hunting grounds, recognizing the Indian practice of considering their hunting grounds as much their own as their village sites, and realizing that it would be nearly impossible to publish and enforce the limits of separate small hunting grounds for the emigrant tribes. He suggested finding some way of acquiring a large tract from the indigenous Indians to be used as a common hunting ground for all the tribes in the area, indigenous as well as emigrant. From the above it appears that prior to the advent of the emigrant tribes along the eastern border of Kansas, the “uninhabitable” area beginning about 200 miles west was divided into fairly well defined areas for hunting purposes with the Osage hunting in the south, the Kansas in the east central, and the Pawnees (and their friends by permission) in the northern parts of Kansas. The emigrant tribes were settled along the eastern border of Kansas on land acquired from the Osage in the south and the Kansas in the central and northern portions. From the various reports, the best hunting grounds for buffalo appear to have been controlled by the numerous and strong Pawnee bands, and the outlets proposed for the emigrant tribes north of the Kansas reservation (established 1825) would 'have le-d the emigrant bands into land claimed and controlled by the Pawnees. In 1829, the Government concluded a supplementary treaty with the Delaware Nation wherein that tribe were given as an outlet, a strip of land ten miles wide immediately north of the Kansas Indians’ reservation as established in their treaty of 1825. Delaware Treaty of September 24, 1829, 7 Stat. 327. To Isaac McCoy was assigned the task of surveying the Kansas reservation and later the Delaware Outlet. In connection with the survey of the Delaware Outlet, Mr. McKenncy wrote to General William Clark, Superintendent of Indian Affairs on June 5, 1830, advising him to inform the agents for the Indians owning the country-over which Mr. McCoy might travel, of the purpose of his work, and to secure McCoy’s safe conduct. In April, 1831, Isaac McCoy wrote to Secretary of War John H. Eaton advising him of the completion of the surveys of the Kansas reservation and of the Delaware Outlet. McCoy stated that the Delaware Outlet line was terminated on the Solomon River about 140 miles west of the western village occupied by the Kansas Indians on the south, and about 40 miles west of the Republican Pawnee village on the north He then pointed out the apparent ambiguity concerning the northern boundary of the Kansas cession as described in the Treaty 'of June 3, 1825, particularly that portion which mentioned the “source of the ■ Kansas river, leaving the old village of the Pania Republic to the West;”. In that connection he stated: “I am of the opinion that, from the source of the Great Nemaha to the source of the Kansa, the course is little, if any, south of west. It would have been more proper, therefore, to have said that the old Pawnee village should be left to the north than to the west. In running the northern line of the Delaware outlet, we barely escaped coming in contact with the limits above mentioned, by passing some six or eight miles south of the above mentioned ‘old Pawnee village.’ But should the line, according to the late treaty, [Kansas — 1825] incline southwardly somewhat, as has been heretofore supposed, then the termination of our late survey must have been within the Pawnee lands; and, if another outlet should be set off north of our late survey, it would run still further on to the Pawnee lands (p. 436).” Mr. McCoy advised the wisdom of making a purchase of lands from the Pawnees who, up to that time, had not been asked by the United States to cede any of their territory. On July 22, 1831, Pawnee Agent John Dougherty wrote to General William Clark, Superintendent of Indian Affairs, on the subject of the hostilities between the Pawnees and the Delawares. He mentioned the killing of three Delaware Indians by the Pawnees in the winter of 1829 and stated that the affair occurred “high up on the Republican fork of the Kanzas, and within the' country claimed by the Pawnees as their hunting ground;”. Dougherty pointed out that the Delaware chief had been told that at that time the Pawnees did not know who the Delawares were and probably thought them to be Osage Indians (traditionally enemies of the Pawnees), and that the Delawares were on land claimed by the Pawnees when they were attacked. Dougherty expressed particular concern over the determination of the Delaware chief to go with a hunting party “towards the mountains — which will, if persisted in, certainly lead him into the heart of the country claimed by the Pawnees as their hunting ground, and will, it is presumed, should they meet, bring him and his party in direct conflict with the Pawnees.” Dougherty pointed put that the Pawnees viewed the Delawares in the same light as they did the whites and that if an open break should occur between the two tribes, it might adversely affect the harmonious relations between the whites and the Pawnees, and interfere with the white traders who had been passing over the Pawnee lands on their way to and from the mountains. He stated: “The anticipated result of things between the Delawares and Pawnees might, it would'seem to me, be arrested, and its horrid consequences prevented by such interference. This would be effectual, either by preventing the Delawares from going at all on the Pawnee lands to hunt, or by obtaining from the Pawnees privilege for them to do so. Objections may be urged against the means suggested, of preventing the Delawares from going on the lands of the Pawnees to hunt, as our Government has already promised them by treaty and in fact has marked for them, a pass-way of ten miles wide, leading into that very country, and directly on the lands claimed and owned by the Pawnees, as a hunting ground, ever since our acquaintance commenced with them. The Delawares are fully sensible that our Government has guaranteed to them this pass-way or hunting road, and seem determined to avail themselves of it. They might, therefore, have some just grounds of complaint against us, were we, immediately after making the road for them, to step forward, and prevent them passing out on it to hunt. Situated then, as we are in relation to the parties, I would most respectfully recommend, that at as early a time as practicable, and if possible before the Delawares go on their contemplated hunt, the Pawnees be assembled, and a perfect understanding had with them on the subject, and the privilege, for the Delawares to hunt on their lands, be obtained, and their differences, whatever they may be, settled and put to rest.” In a letter dated August 26, 1831, General Clark transmitted the above letter to Secretary of War Lewis Cass stating: “I agree with Mr. Dougherty as to the necessity of preventing further serious difficulties between those tribes by a timely interference of the Government and think his plan of procuring for the Delawares permission from the Pañis to hunt on their land, a good one * * *" On August 18, 1831, Isaac McCoy wrote to the Secretary of War, stating that in his report of January 1 to the War Department, he had recommended the ex-tinguishment of the Pawnee claim to so “much of their country as the Government will require in the prosecution of the plan of locating all the tribes in this western region” (p. 555). He observed that obstacles to the extinguishment of their claims would increase every year. He stated that Major Dougherty, agent for the Pawnees and other bands, was in favor of the plan, and that a yearly annuity of $1,000 to each of the Pawnee bands would undoubtedly purchase land sufficient to serve the Government’s purposes. In a letter dated October 29, 1831, from John Dougherty to General Clark, Superintendent of Indian Affairs at St. Louis, Dougherty told of the smallpox epidemic among the Pawnees.' The letter also contains the following pertinent statement: “They [the Pawnees] stated that their neighbors, the Ottoes and Omahas, were receiving an annuity from their great father for some wild lands, and that he [the great father] had surveyed off a portion of the Pawnee land and given it to his Delaware children, for which they hoped he would have pity on his Pawnee children also, and do for them as he was doing for his Otto and Omaha children.” • On November 9, 1831, John Dougherty wrote to General Clark stating that he had written to the Delaware Agent, Major Cummins, on the subject of the difficulties between the Pawnees and the Delawares. He informed General Clark that a party of Delawares had gone through Pawnee country on a trapping expedition, and that he thought the emigrant tribes should be restrained from buffalo and beaver hunting expeditions. On December 20, 1831, General Clark wrote to Elbert Herring, Commissioner of Indian Affairs in the War Department, and sent to him the last mentioned letters from Major Dougherty. General Clark made the following statement and recommendation to the Commissioner of Indian Affairs: “Enclosed herewith I have the honor to transmit to you three letters from Mr. Dougherty; one of the 29th October, stating the sickness and mortality among the Pañis, and their wish to receive an annuity, to which they conceive themselves entitled, on account •of a portion of their lands having been surveyed, as they state, and given to the Delawares. “I would recommend that a council be held with the Republican band of Pañis for the purpose of extinguishing their title to such portion of their land as is embraced in the tract assigned to the Delawares; and that they be allowed a reasonable compensation therefor.” It was apparently General Clark’s thought at that time that it would only be necessary to deal with the Republican Band of Pawnees in settling the matter of the Delaware Outlet. On January 31, 1832, Commissioner of Indian Affairs Herring replied to General Clark, acknowledging his letter and its recommendations with respect to the Pawnee claim, and stating: “I am instructed by the Secretary of . War to desire you to investigate the title of the Pañis to the land claimed by them, and conveyed by the United States to the Delawares; and to communicate the results of such investigation, together with your free and full views and opinion on the subject matter of your letters, that the department may afterwards decide on the course to be pursued.” .On February 16, 1832, Secretary of War Uewis Cass wrote. to the President of the United States forwarding to him the Greek memorial and noting the number of Indians who had emigrated (in all 19,390, with 16,570 more, expected that same season). He remarked that because of the imperfect state of the Government’s knowledge of the topography of the country, it was impossible to know precisely the quantity of land previously ceded to the United States, the amount already granted to the “transplanted bands,” and how much remained for future assignment. He recommended that the indigenous tribes be visited by representatives of the Government to impress them with the power of the United States, to explain the fact that the emigrant tribes being moved into the area were under the protection of the United States and would be defended from all harm at the hands of the indigenous bands. He then proposed that the whole subject be submitted to Congress with a recommendation for the appointment of three commissioners “to whom the whole matter may be committed.” These three commissioners “should examine the country thoroughly, ascertain and report its extent, fertility and advantages; adjust, if possible, the existing difficulties about boundaries; determine the proper positions of the tribes who are yet to migrate; and inquire whether further cessions” from the indigenous bands are necessary and can be