Full opinion text
LITTLETON, Judge, delivered the opinion of the court. This is an appeal by certain bands or tribe of Snake or Piute Indians of the former Malheur Reservation in Oregon, from a final determination of the Indian Claims Commission adverse to appellant’s claim for relief. Appellant Indians are the descendants of seven bands of Snake or Piute Indians, of which We-You-We-Wa appears to have been the principal Chief, with which bands or “Tribe” a treaty, which was never ratified or submitted for ratification, was entered into, under circumstances which will be hereinafter discussed, on December 10, 1868, by J. W. Perit Huntington, Superintendent of Indian Affairs for the'Territory of Oregon. This unratified treaty was signed on the date mentioned by Huntington, We-You-We-Wa, Gsha-Nee, E-HeGant, Po-Nee, Chow-Wat-Na-Nee, Ow-Itz, and Tash-E-Go, Chiefs and Headmen of these bands or “Tribe.” Later, in 1869 and subsequently, as will hereinafter appear, these Indians of the seven bands were urn der the leadership of four Chiefs, We-You-We-Wa (also known as We-Ah-We-Wah), E-He-Gant (also known as E-A-Gan), Po-Nee (also known as Pon-Ee), and Ow-Itz (also known as Owitze). In Count I of the petition filed; on behalf of the Indians of the bands or tribe mentioned, with the Commission pursuant to the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C.A. § 70 et seq., appellant (herein sometimes referred to as the “We-Ah-We-Wah Tribe”) asserted the right to recover on the ground that the United States in 1882 took, without the consent of and without the payment of any compensation to appellant’s ancestors, a tract of land comprising the former Malheur Reservation in southeastern Oregon. Appellant claims that this had been exclusively used and occupied at the time of the treaty in 1868, and the taking, and from time immemorial, by appellant’s ancestors. Appellant asked judgment in the amount of $3,500,000 representing the alleged value of the land at the time of taking. In the alternative, appellant Tribe asserted in Count II of the petition that it was entitled to relief under the provisions of Section 2(5) of the Indian Claims Commission Act in that the Government’s course of dealings with these bands of Piutes, at the time of and subsequent to the negotiating of the unratified treaty of December 10, 1868, was not fair and honorable. Section 2(5) of the Act provides that the Commission shall hear and determine claims “based upon fair and honorable dealings that are not recognized by any existing rule of law or equity.” Appellant left to the determination of the Commission the amount of the award to which it might be entitled if it prevailed under this theory. A hearing was held before the Commission and evidence was presented by the parties, consisting primarily of official Government documents in the form of letters and reports from various Government officials. Because of the antiquity of the claims, no living witnesses to the events in question could be found. No expert testimony was adduced on tire question of aboriginal Indian title, although defendant introduced in evidence portions of anthropological studies in connection with tribal distribution in eastern Oregon. At the close of the hearing, pursuant to Rule 25 of the Commission’s General Rules of Procedure, appellant filed its proposed findings of fact, following which appellee filed its objections to appellant’s proposed findings and its own proposed findings of fact. On December 29, 1950, the Commission filed its final determination including its findings of fact. With respect to both counts in appellant’s petition, the Commission determined that the appellant was not entitled to recover because it had not established (1) that it had aboriginal Indian title to the land in question, or any determinable portion thereof, and (2) that the dealings of the Government with the tribe were not other than fair and honorable. In the appeal to this court, appellant tribe urges that the Commission has erred in that it failed to make necessary findings of fact concerning much evidence in the record bearing directly on the issues of Indian title in 1868, and fair and honorable dealings. It is appellant’s position that the evidence in question is documentary in nature and stands unrefuted, and that had adequate findings been made relative to the relevant and pertinent facts established by such evidence, the Commission’s ultimate findings adverse to appellant’s claims would not be supported by such evidentiary or basic findings. Appellant accordingly contends that this court should hold that the Commission’s ultimate findings, adverse to appellant’s contentions on the two issues in suit, are not supported by substantial evidence based on the whole record in the case, or that the case should be remanded for further findings. Section 19 of the Indian Claims Commission Act provides as follows : “The final determination of the Commission shall be in writing, shall be filed with its clerk, and shall include (1) its findings of the facts upon which its conclusions are based; (2) a statement (a) whether there are any just grounds for relief of the claimant and, if so, the amount thereof; (b) whether there are any allowable offsets, counterclaims, or other deductions, and, if so, the amount thereof; and (3) a statement of its reasons for its findings and conclusions.” Section 20(b) of the Act of August 13, 1946, 25 U.S.C.A. § 70s, sets forth the scope of this court’s review of the final determinations of the Commission. It provides that this court shall have exclusive jurisdiction to affirm, modify, or set aside such final determination and that the court may at any time remand the cause to the Commission for such further proceedings as it may direct. With respect to the Commission’s findings of fact and conclusions of law, the section provides in part as follows: “ * * * On said appeal the Court shall determine whether the findings of fact of the Commission are supported by substantial evidence, in which event they shall be conclusive, and also whether the conclusions of law, including any conclusions respecting ‘fair and honorable dealings’, where applicable, stated by the Commission as a basis for its final determination, are valid and supported by the Commission’s findings of fact. In making the foregoing determinations, the Court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.” [Italics supplied.] This court had occasion to examine and consider the problem of our scope of review of the Commission’s findings of fact in the case of Osage Nation of Indians v. The United States, 97 F.Supp. 381, 119 Ct. Cl. 592, certiorari denied 342 U.S. 896, 72 S.Ct. 230, 96 L.Ed. 672. We noted there, 119 Ct.Cl. at pages 612-613, 97 F.Supp. 381, that the language used in section 20(b) was similar to that of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.A. § 1001, which fact was specifically noted in the Conference Report on the Indian Claims Commission Act (Cong.Rec. 7-27-46, p. 10454). See also House Report No. 2693, 79th Cong. 2d Sess., p. 8, where it is stated that “ * * * in deference to the position taken by the Department of Justice * * * appropriate amendments were made in sections 20(b), * * * which apply to the Commission the forms of review embodied in the recently enacted Administrative Procedure Act.” In the Osage case, we also discussed the then recent decisions of the Supreme Court in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, and National Labor Relations Board v. Pitts burgh S. S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479, in which the court held that the judicial review provisions of the Administrative Procedure Act, and similar language in the Taft-Hartley Act, 29 U.S. C.A. § 141 et seq., require that substantiality be determined in the light of all that the record relevantly presents. In the Pittsburgh S. S. case, the Court stated, 340 U.S. at page 502, 71 S.Ct. at page 456: “ * * * The court [U.S.C.A., 6th Cir.] painstakingly reviewed the record and unanimously concluded that the inferences on which the Board’s findings were based were so overborne by evidence calling for contrary inferences that the findings of the Board could not, on the consideration of the whole record, be deemed to be supported by ‘substantial’ evidence.” In the Osage case, we discovered error in one of the basic findings of fact on which an ultimate finding was based. We concluded that the true meaning and significance of the document, which was the subject of the basic finding in question in that case, required a different finding to be made and the finding required by such document had the effect of withdrawing substantial support for the ultimate finding which bad been made on the issue involved. In the instant case the appellant has not raised any serious objection to the basic or evidentiary findings of facts actually made by the Commission and our review of the whole record persuades that in general they are accurate. The error urged by appellant as to both counts of its petition is that the findings inadequately present the essential facts established by the whole record and that the whole record, while it may contain support for the few basic findings made, does not support the ultimate findings of the Commission on the two principal issues in the case. At the outset, it should be noted that, as in the matter of the scope of this court’s review under the Act of August 13, 1946, supra, the Administrative Procedure Act, supra, contains a provision similar to Section 19 of the Indian Claims Commission Act, quoted above. Section 8 of the Procedure Act, 5 U.S.C.A. § 1007, relative to “Decisions” in “cases in which a hearing is required”, provides in subparagraph (b) as follows: “ * * * • All decisions * * * shall become part of the record and include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record; and (2) the appropriate rule, order, sanction, relief, or denial thereof.” Prior to the passage of the Administrative Procedure Act in 1946, it appears to have been settled law that where enabling legislation required a quasi-judicial body to conduct hearings and render decisions including findings of fact, ultimate or inferential findings and conclusions had to be supported by basic or evidentiary findings which adequately reflected the essential facts of record. Courts of appeals have applied this rule to trial courts sitting without a jury, and where such basic findings were lacking, the appellate courts have usually declined to pass on the validity of the trial court’s final determinations and have remanded the cause for the making of adequate basic findings. The reasons for this course of procedure and the necessity for basic findings have been stated many times by the Supreme Court, by the Circuit Courts of Appeals, and by Federal District Courts reviewing decisions of such quasi-judicial tribunals as the National Labor Relations Board, the Interstate Commerce Commission, Federal Trade Commission, etc. In the frequently cited case of Saginaw Broadcasting Co., v. Federal Communications Commission, 68 App.D.C. 282, 96 F.2d 554, certiorari denied Gross v. Saginaw Broadcasting Co., 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391, one of the issues before the Commission was whether the granting of a license to the plaintiff company would serve the public interest, convenience or necessity. The Commission made a finding in the negative on this issue and the plaintiff appealed, assigning as one of the errors the Commission’s failure to make sufficient findings of fact from the evidence adduced at the hearing. With respect to the Commission’s ultimate finding that the granting of the license would not serve the public interest, etc., the Court of Appeals said, 96 F.2d at page 560: “ * * * An affirmative or negative finding on this topic would be a finding of ultimate fact. This ultimate fact, however, will be reached by inference from basic facts, such as, for example, the probable existence or non-existence of electrical interference, in view of the number of other stations operating in the area, their power, wave length, and the like. These basic facts will themselves appear or fail to appear, as the case may be, from the evidence introduced when attentively considered.” The Circuit Court noted that the Communications Act, 47 U.S.C.A. § 151 et seq., required the Commission to file a full statement in writing of the facts and grounds for its decision as found and given by it; that Section 402 (a) of the Act provided that a review by the court should be limited to questions of law, and that findings of fact by the Commission, if supported by substantial evidence, should be conclusive. The court then proceeded to discuss the reasons for the requirement, sometimes made by statute and sometimes by court rules or decisions, that courts, and commissions acting in a quasi-judicial capacity, make findings of fact, and stated, 96 F.2d at page 559, as follows: “The requirement that courts, and commissions acting in a quasi-judicial capacity, shall make findings of fact, is a means provided by Congress for guaranteeing that cases shall be decided according to the evidence and the . law, rather than arbitrarily or from extralegal considerations; and findings of fact serve the additional purpose, where provisions for review are made, of apprising the parties and the reviewing tribunal of the factual basis -of the action of the court or commission, so that the parties and the reviewing tribunal may determine whether the case has been decided upon the evidence and the law or, on the contrary, upon arbitrary or extralegal considerations. When a decision is accompanied by findings of fact, the reviewing court can decide whether the decision reached by the court or commission follows as a matter of law from the facts stated as its basis [], and also whether the facts so stated have any substantial support in the evidence. In the absence of findings of fact the reviewing tribunal can determine neither of these things. The requirement of findings is thus far from a technicality. On the contrary, it is to insure against Star Chamber methods, to make certain that justice shall be administered according to facts and law. This is fully as important in respect of commissions as it is in respect of courts.” [Italics supplied.] The Court also discussed the necessary content of findings of fact and said, 96 F.2d at page 559: “ * * * it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence must be taken and weighed, both as, to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in the language of the statute, are to be inferred, or not, as the case may be; (4) from this finding the decision will follow by the application of the statutory criterion.” As support for its holding that a reviewing court cannot properly exercise its function where the findings of basic facts are lacking or are inadequate, the Circuit Court of Appeals referred to certain decisions of the Supreme Court which discussed what findings of fact were necessary in reports of the Interstate Commerce Commission. The Court of Appeals further noted that Section 14 of the Interstate Commerce Act, 34 Stat. 589, 49 U.S.C.A. § 14 (1934), required only that the report of that Commission state its conclusions unless damages were to be awarded, but that the Supreme Court had nevertheless required the Commission to make substantial findings of basic and essential facts necessary to support its decisions, despite the absence of statutory requirement for such findings. In United States v. Morow, 87 U.S.App.D.C. 84, 182 F.2d 986, the suit by plaintiff was brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2402, for personal injuries and damage to her car in a collision with a United States Marine Corps truck. The District Court had rendered a judgment for the plaintiff. The Circuit Court of Appeals held that the District Court was under a misapprehension as to the last-clear-chance doctrine of the State of Virginia and that under a proper interpretation of that doctrine, the findings of the District Court were not sufficiently comprehensive. The Court of Appeals stated that there was evidence in the record not made the subject of findings which might well have supported the District Court’s conclusion that plaintiff was entitled to recover but the Appellate Court declined to so hold and remanded the case to the District Court, stating, 182 F.2d at page 989: “The findings of the District Court are not sufficiently comprehensive to warrant us in directing the entry of judgment for the defendant United States or in affirming the judgment for the plaintiff on the basis of evidence not made the subject of findings of the District Court.” In Interstate Circuit, Inc., v. United States, 304 U.S. 55, 58 S.Ct. 768, 769, 82 L.Ed. 1146, the Court held that the ultimate conclusions stated in the lower court’s decree that “the parties had engaged in an illegal conspiracy” was not properly supported by findings of basic facts in the record and that the opinion of the court below was not a substitute for the required findings even though it contained a discussion of portions of the evidence not made the subject of basic findings. In Kelley v. Everglades District, 319 U.S. 415, 420, 63 S.Ct. 1141, 1144, 87 L.Ed. 1485, the issue was the fairness of the allotment of revenue from different sources to different classes of creditors asserting prior claims. In remanding the cause to the District Court which had confirmed the plan for composition of the debts of the respondent as fair, equitable and not discriminatory, the Supreme Court held that the ultimate finding of fairness which is in its nature inferential, was not supported by sufficient findings of basic facts, stating: “To support such determinations, there must be findings, in such detail and exactness as the nature of the case permits, of subsidiary facts on which the ultimate conclusion of fairness can rationally be predicated.” In The E. A. Packer, 140 U.S. 360, 11 S.Ct. 794, 35 L.Ed. 453, the Court held that whether a collision of two vessels was due to the fault of one or the other amounted to a legal inference from other facts and should not be inferred from a finding of a single material fact tending to show fault on the part of one vessel, where there was uncontradicted evidence in the record of other facts tending to show either that this fault did not contribute to the collision, or that there were contributing faults upon the part of the other vessel. The Court held that the record justified findings requested by appellant and remanded the case. The Supreme Court has found occasion in certain cases to remand decisions of this Court for inadequacy of basic findings. In Seminole Nation v. United States, 316 U.S. 286, 651, 62 S.Ct. 1049, 1055, 86 L.Ed. 1480, the Court noted “ample indications in the record” of facts which, in its opinion should have been made the subject of basic findings. After discussing the evidence of record which it considered relevant and the proper subject for basic findings, the Court remanded the case for further findings, stating, 316 U.S. at page 300, 62 S.Ct. at page 1056: “We do not say that all this establishes liability on the part of the Government for it is not our function, in reviewing judgments of the Court of Claims, to make basic findings of fact. When the Court of Claims fails to make findings on a material issue, it is proper to remand the case for such findings. Cf. Universal Battery Co. v. United States, 281 U.S. 580, 584, 585, 50 S.Ct. 422, 423, 74 L.Ed. 1051.” Upon remand, this court reexamined the record, held further proceedings, and after making findings, held that the evidence did not justify a conclusion that the United States knew of the corruption of, and knowingly paid money to, corrupt chiefs for the benefit of the tribe. 102 Ct.Cl. 565, certiorari denied 326 U.S. 719, 66 S.Ct. 24, 90 L.Ed. 426. See also United States v. Esnault-Pelterie, 299 U.S. 201, 57 S.Ct. 159, 81 L.Ed. 123. In considering the question of the adequacy of findings of quasi-judicial tribunals which have been held subject to Section 8 (b) of the Administrative Procedure Act, the courts have been careful to state that detailed findings of every subsidiary evidentiary fact is not required. Thus, in affirming an order of the Interstate Commerce Commission complained of as lacking the necessary evidentiary findings of fact to support its final determination, the District Court stated in Capital Transit Co. v. United States, 97 F.Supp. 614, 621: “ * * * Here the facts and policies upon which the Commission proceeded are fully set forth. There appears -to be no omission in the Commission’s statement which is in any way prejudicial to complainant. There is not: lacking any element, either as to findings of fact or considerations of policy, necessary to support the present order of the Commission. ” We are of the opinion that the principles defined and discussed in the above-mentioned decisions with respect to the necessity for basic or evidentiary findings of fact which adequately reflect the whole record and provide an adequate basis for ultimate findings and for final determinations of quasi-judicial commissions subject to the Administrative Procedure Act, to District Courts sitting without a jury, and to the Court of Claims, are equally applicable to the determinations of the Indian Claims Commission. In applying the above principles, we first direct our attention to the nature of the ultimate findings or conclusions reached by the Commission on the issues raised in Counts I and II of this case. In Count I, the issue is whether appellant exclusively used and occupied in the Indian manner, to the exclusion of all other tribes or bands, the land in question or some definite part of it, not only at the time of the alleged taking or deprivation of use, but for a long time prior thereto. This issue of Indian title is the same issue, among others, which was before this court under a special act in the case of Alcea Band of Tillamooks v. United States, 59 F.Supp. 934, 103 Ct.Cl. 494, affirmed 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29. A finding that the plaintiffs Tilla mooks, et al., had “Indian title” to the land in question was arrived at only after a thorough and careful consideration of many types of evidence which were made the subject of basic findings. Also, in the case of Pawnee Indian Tribe of Oklahoma v. United States, Ct.Cl., 109 F.Supp. 860, we had occasion to consider what facts might be established in order to support a finding of Indian title in a tribe. The problem of establishing such exclusive occupancy title by immemorial possession as of a date too remote to admit of testimony of living witnesses, and where no deeds or patents exist, is not a simple one. At best, the ultimate fact of beneficial ownership by exclusive possession and occupancy can only be inferred and found from many separate events and a variety of documentary material such as reports of early explorations, maps by explorers or Government engineers, reports of military expeditions, letters and contemporaneous reports of Government representatives writing from the areas in question, annual reports of the Secretaries of War prior to 1849, and of the Secretaries of the Interior after that date, Senate and House Executive documents, contemporary newspaper articles, evidence of an expert type from anthropologists and historians, correspondence in the. records of various .Government departments and officials with reference to or having a bearing on the tribe or the area in question, and, in fact, anything having any relevance which can be unearthed. The fact of original Indian title in a tribe at an ancient date requires a great deal of proof, and the essential evidentiary facts shown by that proof, insofar as they are relevant, should find their way into carefully prepared findings of fact in support of whatever ultimate finding regarding title is justified thereon. With respect to Count II, a finding respecting fair and honorable dealings is even more clearly in the nature of an inference to be drawn from all the relevant evidentiary or basic facts bearing on the entire course of dealings between the parties. And it is for the Commission in the first instance to make findings concerning all such facts as may appear in the record so that we may know precisely upon what basis the ultimate factual inference is made. See Kelley v. Everglades District, supra. That something or someone is or is not fair or honorable is always a conclusion or an inference based upon many factual considerations. It is seldom that in a course of dealings over a long period of years, a single event will be determinative of whether, in the last analysis, a person has or has not acted fairly and honorably. A review of the entire record in this case persuades us that in the light of the issues raised in both counts, the Commission’s findings of fact are insufficient. It is not the function of this court to make findings of fact, but merely to review the findings and decision of the Commission under the principles outlined above. Neither should this court undertake to anticipate what the conclusion of the Commission might be as a result of the making of additional findings. If, upon reconsideration of the whole record and the making of additional evidentiary and basic findings, the Commission decides that appellant has established Indian title by exclusive occupancy and possession, to some or all of the land in question, the question raised in Count II on fair and honorable dealings will not be pertinent, for appellant can have but one recovery. Inasmuch as the Commission has found adversely to appellant on both counts, we shall discuss and analyze to some extent the Commission’s findings and opinion respecting both issues for the purpose only of indicating wherein we think them to be insufficient for the purposes of our review on appeal. Count I Appellant’s claim to Indian title is in certain respects unique. Claiming as the descendants of the bands who in 1868 appear to have been under the leadership of the Piute Chief We-Ah-We-Wah and certain other chiefs and headmen who signed the unratified treaty of December 10, 1868, appellant urges that those bands had used and occupied, to the exclusion of other tribes and bands, at the time of the treaty and for a long time prior thereto, land in the vicinity of Lake Malheur and Harney in southeastern Oregon. The appellant tribe does not appear to contend that the area of land so occupied was- precisely that included within the boundaries of the later established Malheur Reservation, defined and created by Executive Order, but rather that it was in that vicinity and included at least that area of land. The implication seems to be that the area claimed to 'have been owned was actually much larger than the reservation and that it included therein the lands set apart and used as the original Malheur Reservation, but that due to the lack of evidence of exact boundaries, appellant is willing to accept compensation for the lesser area included in the Executive Order reservation. The indefiniteness of appellant’s claim respecting the whole country they were supposed to have occupied and possessed does not seem to have troubled the Commission which apparently took the view that if, within that large and indefinite area, the tribe could establish by satisfactory proof its exclusive occupancy and control as to a smaller and definable part, a justiciable claim was presented. Under the circumstances of this case, we think that the Commission’s attitude was both reasonable and eminently fair. In determining that appellant had not established its claim of Indian title to the area of land included within the boundaries of the Malheur Reservation, the Commission noted in its findings and opinion the following facts and circumstances which it considered to be relevant. Until 1860 little was known by the white people or by the Government of the Snake or Piute Indians of southeastern Oregon except that they were a nomadic, nonvillage type of Indian. Little was known about the boundaries, if any, between the areas 'habitually ranged over by the various bands of Indians in that area in search of their livelihoods. (Findings 1, 3, and 4.) Pursuant to the Act of March 25, 1864, 13 Stat. 37, authorizing the President to negotiate treaties for the purchase of lands from the Snake Indians and from the Klamath and Modoc Indians in southeastern Oregon, treaties of cession were negotiated and ratified in the case of the Klamath and Modocs in 1864 and with the Woll-Pah-Pe Tribe of Snake Indians in 1865. The Commission noted that the lands ceded by those tribes included part of the land later set aside for the Malheur Reservation and now claimed by appellant tribe as having belonged to its ancestors. (Finding 4.) The remaining non-treaty bands of Snake or Piute Indians in southeast Oregon, including the bands of appellant tribe, remained hostile to the whites and it was not until after their defeat by the United States Army under General Crook, that a council looking toward a treaty could be held with them. A treaty of peace and friendship was concluded by Superintendent Huntington, on behalf of the United States, and by seven Piute chiefs of the bands of appellant tribe at Fort Harney on December 10, 1868. Aside from the stipulations regarding the keeping of peace, the seven bands of Indians agreed by this treaty to reside upon such reservation as might thereafter be allotted to them. The treaty further stipulated that the United States would guarantee to protect their persons and property while they were upon such reservation; that future provisions would be made by the Government for the permanent location of the Snakes, their education, government, food, clothing, and allotment of lands in severalty when their advancement warranted it. Article 7 provided that this treaty was only preliminary to a more complete treaty to be made at a later date. This treaty was never ratified nor was it ever submitted for ratification, and no other treaty was ever consummated by and between the parties. (Finding 5.) The Commission found that a further council was held with the Snakes or Piutes the following year (1869) and that there were present at such council Su perintendent Meacham, representing the Indian Office, Colonel Otis and two other officers of the United States Army, four of the chiefs who had originally signed the 1868 treaty, together with the chiefs of three other bands, not parties to this suit, i. e., Chock-Tote, O-Che-Ho and TehAh-Ne. The purpose of this council during 1869 was to persuade the chiefs mentioned to remove with their bands to the Klamath Reservation in southern Oregon. All refused to do so except O-Che-Ho and Chok-Tote. (Finding 6.) In March 1871, Superintendent Meacham recommended to the Commissioner of Indian Affairs that an area of laud located between the forty-second and forty-fourth parallels of latitude and between the 117th degree and 120th degree of longitude, be withdrawn for eighteen months with a view to selecting an Indian reservation on which could be consolidated Indians east of the Cascade Mountains. (Finding 7.) By Executive Order dated March 14, 1871, the land in question was withdrawn. On September 12, 1872, an Executive Order set aside as a reservation “for the Snake or Piute Indians” the area previously withdrawn (Finding 8) and in the Fall of 1873, various roving bands of Indians in southeastern Oregon and adjacent areas in Nevada and Idaho, other than appellant bands or tribe, were collected by defendant and placed on the reservation which was known as “Malheur.” (Finding 9.) From these facts, the Commission concluded in an ultimate finding that the appellant Piute bands or tribe who signed the 1868 treaty, did not have Indian title by exclusive occupancy and possession to any of the land included in the Malheur Reservation. (Findings 16 and 17.) In its opinion the Commission found significant the facts that the unratified treaty of December 10, 1868, was not a treaty of cession; that it did not promise the Indians a reservation at any particular location; and that such treaty was never ratified. The Commission referred to the fact that there were a number of general statements in the record by the Indians and by Government agents referring to the territory in southeast Oregon as “Snake country,” but stated that the only reference to the location of any particular band was in the report of Colonel Otis, wherein he stated that the bands under We-Ah-We-Wah (one of the chiefs signing the 1868 treaty) roamed principally on the headwaters of the Malheur river and Stein Mountain country, i. e., in the vicinity of the land claimed in this action. The Commission did not identify the general statements referred to, nor did it make any evidentiary or basic findings on those statements nor concerning Colonel Otis’ letter. In further support of its conclusion, the Commission stated that the selection of the Malheur area for a reservation was motivated solely by the fact that this particular area was well adapted to reservation purposes, and was in no sense an indication that the United States believed that this land belonged to appellant’s ancestors or to any band of Indians. In this connection, the Commission suggests that the selection of this specific land for a reservation was merely fortuitous. It is not clear from the Commission’s findings and discussion, from what evidentiary material it drew the conclusion as to the Government’s motives in selecting this particular land except for a reference to Superintendent Meacham’s letter of March 8, 1871 (Finding 7), in which he stated that the reservation was to be used for the purpose of consolidating thereon “Indians east of the Cascade Mountains.” The Commission adds that the designation of this reservation as one for the “Snake or Piute Indians” in Commissioner Walker’s letter of September 4, 1872 (Finding 8. (a) ), and also in the Executive Order of September 12, 1872 (Finding 8 (b) ), was without significance. Without passing at this time upon the correctness of' the Commission’s conclusion that the record does not justify a finding of aboriginal Indian title in appellant’s ancestors to the land in question or to any portion of it, we shall discuss some of the evidence in the record which, insofar as the findings and opinion reveal, was not deemed to be of importance by the Commission, but which we believe to be relevant on the issue of Indian title. As previously stated, proof sufficient to establish Indian title at an ancient date is complicated and difficult, and careful consideration must be given to all relevant facts and circumstances. In view of the intention of Congress, as manifested by the liberal provisions and the history of the Indian Claims Commission Act, to deal fairly and justly with Indian groups, band or tribes, much weight should, we think, be given to such evidence as contemporaneous statements of authorized Government representatives in the area in question and to official reports and records respecting the location of the land and the nature of the Indians’ occupancy and possession, i. e., whether regarded at the time as exclusive or not. Consideration also should be given to the statements of the Indians themselves as contained in the recorded minutes of councils held with Government representatives. During and long prior to 1868 Government agents and officials seem to have had a clear conception of the nature and character of Indian possessory title and the type of occupancy necessary to show such title. Government officials had been dealing with Indian bands and tribes in connection with such matters since as early as 1785. The fact that the 1868 treaty was not in express terms a treaty of cession but was merely one of peace and friendship, seems to 'have been very persuasive in the conclusion reached by the Commission that the Government never considered this land to have been the established home of the bands under the chiefs who signed that treaty. In that connection it appears to us that considerable light is thrown on the Government’s motives and action by the letter of instructions issued to Superintendent Huntington on June 22, 1864. These instructions (Claimant’s Exhibit 9) were issued by Acting Commissioner of Indian Affairs Mix, pursuant to the Act of March 25, 1864, supra, which act authorized the President to negotiate treaties with the Klamath, Modoc and Snake Indian tribes in Southeastern Oregon, for the purchase of the country occupied by them. Appellant bands were in that group and resided in the area where the Malheur Reservation was established. The sum of $20,000 was appropriated by Congress for this purpose to be expended under the direction of the Secretary of the Interior. Appellant’s ancestors who were parties to the 1868 unratified treaty were among the Snake bands covered by that Act. The letter of instructions indicates that the negotiation of a treaty of peace and friendship such as the one negotiated with the seven Piute chiefs in 1868, was not necessarily indicative of the fact that the Indians did not have possessory Indian title to any lands in that area or that the United States did not believe these Indians had any land to cede. The letter stated that the Government was then hard pressed financially because of the great expense of conducting the Civil War, and urged the treaty negotiators to be as economical as possible in carrying out the instructions. The letter reads in part as follows : “It is not the policy of the Government to admit title in the wandering tribes of Indians upon the Pacific Coast, and unless you find insuperable difficulties, I would advise that the treaty should be one of peace and friendship and an agreement on the part of the Indians to reside upon a proper reservation to be selected and distinctly marked, with an agreement on the part of the U. S. to provide them with such necessary supplies [sic]. Farmers & Merchants as will enable them to submit [sic] and advance in civilization so as to be able to take care of themselves. If, however, you find it necessary to negotiate for the exclusive . possession of any part of the country which they occupy to enable our people to develop its mineral productions or avail of its agricultural resources, care should also be taken in that case that the boundaries of the portion retained by the Indians should be clearly defined, if possible, by natural land marks and that within its limits there should be such natural resources as will enable the Indians with but little assistance from the Government, and for a time but little departure from their ordinary pursuits to obtain a livelihood and which shall also be as far removed as possible from White settlements and least liable to be intruded upon by white settlers. The territory retained should also be adapted to grazing and agricultural pursuits so that when in the course of time they shall be reclaimed from their present wild and barbarous methods of life and induced to turn their attention to more civilized pursuits, there will be no necessity for a new treaty and their removal to a new country. “In this connection I invite your attention to the inclosed copies of correspondence from late Superintendent Agent Steel [California], and especially to his remarks in relation to the character of the treaty which should in his judgment be negotiated, these remarks commend themselves to me as being of practicable value, nevertheless I have thought it proper in view of communications from you dated respectively Dec. 8 ’63 March 4th & 28 ’64 to leave the question as to whether the proposed treaty shall be one of cession, or merely of peace and friendship to the discretion of yourself and associates. In either event you are carefully to avoid any extravagant stipulations in favor of the Indians.” Within a few months of the writing of the above letter, Superintendent Huntington negotiated the treaty of October 14, 1864, with the Klamath and Modoc and Yahooskin Band of Snake Indians, and on August 12, 1865, he negotiated a treaty with the Woll-Pah-Pe Tribe of Snakes. Both treaties were treaties of cession, but whether this was so because of “insuperable difficulties” encountered by the Government negotiators in their attempts to avoid purchasing the land as they were instructed to do, or because the United States required the particular land “to enable our people to develop its mineral productions or avail of its agricultural resources,” we are not informed. The documents relating to those treaties in the files of the Office of Indian Affairs, National Archives, might provide the answers. The record in this case does indicate a well known Government policy, evidence of which we have encountered in the records of other Indian cases, i. e., that of extinguishing by means of treaties of cession possessory Indian title to described areas of land and creating of treaty reservations, where it was contemplated that the land ceded would be soon needed by white settlers, by railroad companies (Osage case, supra), or for the use of emigrant Indian tribes whom the Government desired to resettle (Pawnee case, supra). If land claimed by an Indian tribe was not immediately needed by the Government for those or similar purposes, the Government would frequently attempt to negotiate treaties of peace and friendship which often included the granting to the Government by the tribe of rights of way over their lands with the boundaries of. the lands claimed by the tribe set forth in the treaty. See Northwestern Bands of Shoshone Indians v. United States,. 95 Ct.Cl. 642, 100 Ct.Cl. 455, affirmed 324 U.S. 335, 65 S.Ct. 690, 89 L.Ed. 985, which involved positive instructions to treaty commissioners concerning the type of treaty to be negotiated and which also involved a strictly legal claim under a special jurisdictional act, as distinguished from a use and occupancy title. Under the Klamath and Modoc treaty of cession, the Indians ceded an area of land and a treaty reservation was established for them in their “home country” on Klamath Lake for the future home of the tribe. In the Woll-Pah-Pe treaty, land was ceded and the tribe agreed to move to the Klamath Reservation to live. Parts of the lands ceded under these two treaties, and which presumably became a part of the public domain, were later withdrawn and included within the boundaries of the Malheur Reservation in 1872. In the June 22, 1864, letter of instructions to Huntington, Acting Commissioner Mix called attention to inclosed copies of correspondence from “late superintendent Agent Steel, and especially to his remarks in relation to the character of the treaty which should in his judgment be negotiated * * The Steel correspondence referred to may be found in the Records of the Indian Office in the National Archives. Steel was Superintendent of Indian Affairs for the Territory of California. In a letter to Commissioner of Indian Affairs Dole, dated March 8, 1864, Steel described the Snakes as a very numerous tribe of "roving proclivities.” Respecting the type of treaty that should be negotiated with these bands, Steel stated: “A treaty with them * * * is not required for immediate settlements, [and] should be only for their own good behaviour and the right of way and grazing on. In any case the principle of presents and stipulations for purchase should be avoided as the presents only tend to impress the indians with a belief of their superior power and our cowardice and whenever they desire a new outfit, they will make an outbreak with a view to a new treaty and further presents.” Having fulfilled his instructions with respect to the Klamath and Modoc and the Woll-Pah-Pe tribes, Huntington had the remaining problem of negotiating with the Snake or Piute bands who, as pointed out above, were wild, numerous, and of “roving proclivities.” These bands did not take kindly to the intrusion of the white men into their home country, and it was not until after they had been defeated in 1868 by the United States Army under the Command of General Crook who had waged a lengthy and vigorous military campaign against these bands, that Huntington was able to meet with the chiefs and headmen of these bands and carry out his 1864 instructions. Subsequent to the defeat above mentioned, the now destitute Indians were collected on or near various military reservations in Oregon and on or about December 10, 1868, Superintendent Huntington held a council with seven Piute Chiefs and Headmen at a camp near Fort Harney. (Camp Harney was on land later included in the land designated and set aside as the Malheur Reservation.) Apparently Superintendent Huntington had no difficulty in negotiating with the destitute and defeated Piutes the type of treaty which his 1864 instructions indicated would be most acceptable to the Government, i. e., a treaty of peace and friendship with an agreement on the part of the Indians “to reside upon a proper reservation to be selected and distinctly marked” and an agreement “on the part of the U. S. to provide them with such necessary supplies.” Considered as a whole, were the course of dealings and the negotiation and provisions of the 1868 treaty sufficient to lead appellant bands to think or believe that a recognized or treaty reservation would be established for them in their home country where they had long lived? Documents in evidence indicate that the land claimed by appellant bands or tribe was not good agricultural land and, at that time, was not sought after by white settlers. These factors certainly eliminated the necessity of purchasing or extinguishing Indian title, if any, to the land.claimed by these Indians, and it is apparent that the hands of half-savage and thoroughly conquered Piutes could not raise any “insuperable difficulties” to the negotiation of a simple treaty of peace. However, they did exact from Huntington a promise that another treaty would subsequently be negotiated with them, which was never done. That the appellant’s ancestors were completely terrified by the white military forces at whose hands over two-thirds of their number had been killed, is manifest from the documents in evidence. Although no minutes of the treaty council of December 10, 1868, have been found, other documents in the record indicate that the seven Piute chiefs made no attempt to bargain with the United States representatives concerning the terms of the treaty, or the establishment at that time of a treaty reservation, perhaps because a subsequent treaty was promised, and except that they doubtless expressed a desire to be allowed to remain in the area which they claimed as their own country, i. e., the area around Fort Harney where the treaty was signed and where the subsequent council with Superintendent Meacham was held a year later. The record shows that in the November 1869 council with Superintendent Meacham, the four surviving Indian chiefs, then representing the seven bands who had signed the 1868 treaty, stated that Superintendent Huntington had promised them at the council held in connection with that treaty, that the reservation promised in that treaty would be located “in their own country” near Fort Harney. Meacham had in his possession at that council the manuscript of the 1868 treaty, and he made the four chiefs acknowledge their signatures thereto. Pie constantly referred to the treaty as obligating those four chiefs to remove to the Klamath Reservation in southern Oregon which had been selected by the Government as the future abode of the Piutes. Just as consistently throughout the council of several days, those four chiefs of appellant bands referred to Huntington’s “promise” and refused to remove to Klamath. In view of the evidence discussed above, the question arises whether it is reasonable to infer or conclude, as did the Commission, that the negotiation of the 1868 treaty of peace and friendship, rather than a treaty of cession, is a conclusive or even a strong indication that the Government representatives did not believe the Piutes to have occupied a definable area of land around Fort Harney. As to the Commission’s conclusion that the selection of the Malheur area for a reservation was motivated solely by the adaptability of that area for Indian reservation purposes, and not because the Government believed the land to be the home of the seven bands of Piutes who were parties to the 1868 treaty, we think the Commission might wish to consider further several of the documents in evidence which seem to indicate rather that the Government representatives considered the Malheur location as singularly unadaptable for Indian reservation purposes. According to Superintendent Huntington’s report of December 22, 1868 (Claimant’s Exhibit 10), it would seem that the only conceivable reason for establishing a reservation for the Piutes in the Malheur area was because that area was the home country of the Piute or Snake bands who had participated in the 1868 treaty negotiated by Huntington a few days previously, and such reservation would therefore be most acceptable to those Indians. As an Indian reservation for which the Government would be responsible, Huntington pointed out the following drawbacks: the climate was cold, the land- was generally unfavorable to agriculture, timber was scarce, and the cost of transporting all the necessary supplies to the area around Fort Harney would be extremely high. Huntington stated that the only advantage to the area as a reservation lay in the fact that it was the Snake’s “own country” and would involve no very great expense of removing them “and it will be more satisfactory to them than to remove [them] to some distant locality with which they are unacquainted.” Huntington stated that his first choice of a reservation for appellant’s .ancestors was the already established Siletz Reservation on the Pacific coast of Oregon (which had been established in 1855) and his second choice was the Klamath Reservation in southern Oregon, established in 1864. Although Klamath had already been established, Huntington pointed out that it was so near to the Piute’s “own country” that there would always be the problem of the Piute’s wandering off and “going home.” He observed that Siletz had the advantage of being so far from the home country of the Piutes that they could not return. As we have seen, the four chiefs who had participated in the treaty of December 10, 1868, positively refused to leave their “own country” around Fort Harney when they were- asked to do so by Superintendent Meacham in the 1869 council. The Commission has made no findings to support the conclusion in its opinion that the selection of Malheur as a reservation was motivated solely by the adaptability of the land to reservation purposes. We agree with the Commission that this consideration is an important one in connection with appellant’s claim of Indian title to this land, and we feel that a finding should be made respecting the Government’s reasons for selecting this particular site rather than settling the Piutes on Klamath or Siletz. In making such a finding, however, the documents to which we have alluded should be carefully considered. Of significance in evaluating appellant’s claim that the land in the Malheur Reservation was in fact the exclusive homeland of the Piute bands whose chiefs signed the 1868 unratified treaty, is the evidence concerning the behaviour and activities of the other bands who were entitled to reside on the Malheur Reservation when it was established but who had not participated in the 1868 treaty negotiations. At the 1869 council with Superintendent Meacham, only those chiefs who had been parties to the 1868 treaty insisted on a reservation in the Malheur area. O-Che-Ho’s and Chock-Tote’s bands, not parties to the 1868 treaty, consented to and did remove to the Klamath Reservation in southern Oregon. The record indicates that their reason for so doing was that the Klamath Reservation was located nearer to the country which they considered to be their own than was the country around Malheur. A letter, dated April 15, 1872, from Major Hunt to the Assistant Adjutant General at Portland, Oregon (Claimant’s Exhibit 14), indicates that O-Che-Ho’s “old country” was in the vicinity of Warner Lake which was a short distance southeast of the Klamath Reservation, and close to the Nevada and California northern boundaries. The same letter indicated that Chock-Tote’s old country was likewise in the vicinity of the Klamath Reservation. After the Malheur Reservation was established by Executive Order, the seven bands-of Piutes, whose chiefs had signed the.1868 treaty, went on the reservation voluntarily and remained there until the outbreak of the Bannock war. Other bands who were entitled to reside on the reservation and whom the Government wanted settled thereon, had to be rounded up and persuaded to go on the reservation. Some bands successfully resisted the Government’s efforts to locate them on Malheur and never did live on the reservation. Chief Winnemucca and his band finally went on the. reservation but Winnemucca never felt he received the respect to which he was entitled from the other chiefs, and his followers became dissatisfied with the treatment they received and began leaving the reservation in 1877 to return to their old haunts elsewhere in Oregon and in Nevada. Subsequent to the military occupation of the Malheur Agency in the summer and fall of 1878, the reservation was reopened for use as an Indian reservation and the Government for several years attempted to persuade all the bands of Indians who had been entitled to reside there, except appellant’s ancestors who had been taken as prisoners to Yakima, to return to Malheur, but none of them ever consented to do so. Accordingly, since the seven bands of Indians who were parties to the 1868 treaty were never allowed to go back to Malheur, and the Indians who did not sign the treaty did not wish to go back, the reservation was-discontinued by the Government. Finally, it may be significant that it was the Piute bands, or some of them, who had signed the 1868 treaty, who ultimately found their way back from Yakima to the border of the land claimed by appellant bands to have .been their home, and they settled around Burns, Oregon, on the edge of the former Malheur Reservation where, until recent years, they have lived in abject poverty and without any material assistance from the Government. Their nontreaty cousins whose homes were originally elsewhere, went to other Indian reservations where they were apparently well cared for and some even received allotments of land in severalty. Whether or not the possession of appellant bands of the Malheur area or some part of it was ever exclusive, their attachment to that land and their occupancy of it as their home was sufficient to induce them to follow the tragic course indicated in this record. History shows that the home ties of Indian tribes to certain areas where they had lived for a long period of years were very strong. For whatever weight it may have as evidence, the record herein seems to indicate that it was appellant’s ancestors, who signed the 1868 treaty, who (1) insisted on the proposed reservation being located at Malheur which they then claimed as their home and which, in the 1869 council they positively insisted was their home; (2) who went willingly on to the reservation to live as soon as it was. established; (3) who remained on the reservation until the outbreak of the Bannock war although, other bands of nontreaty Piutes either became dissatisfied and left prior to that time, or never consented to go on the reservation at all, preferring to remain in the vicinity of various areas of country which they considered their own; (4) who wished and asked consistently to be allowed to return to Malheur; and (5) who finally returned to that area to live in poverty without formal Government aid for many years. The record also indicates that Winnemucca’s band, O-Che-Ho’s and Chock-Tote’s bands did not at any time claim the Malheur country, or any part of it, as their own, and had no attachment to it or desire to live there. In conclusion, we suggest that the fact that part of the land contained in the Malheur Reservation boundaries was included in the descriptions of the areas ceded to the United States by the Klamaths and Modocs and the Woll-Pah-Pe tribes of Indians, does not necessarily establish non-ownership of those lands by the ancestors of appellant. As, the Commission is no doubt aware, it often happened that land purchased by the Government from one band of Indians during the early days of the Government’s contact in an area, was later discovered to have belonged to a neighboring tribe. On some such occasions it was found necessary by the Government to purchase the possessory title of some part of the same land again from that neighboring tribe. Because of the insufficiency of the Commission’s findings on Count I, we conclude that the determination of the Commission should be set aside and that the cause should be remanded for further consideration and the making of additional findings which will more completely reflect the relevant facts disclosed by the record. If, after considering such evidence and making additional findings, the Commission should arrive at a different result with respect to Count I, it will not, of course, be necessary for it to reconsider the facts relating to Count II. Count II In this count, appellant asserts its right to an award, the amount to be determined by the Commission, on the ground that appellant has been damaged by defendant’s failure, under all the facts and circumstances, to deal fairly and honorably with appellant’s ancestors. It is appellant’s position that the Government was under a moral obligation, at least, to carry out the expressed and necessarily implied promises made by it, through its authorized representative, in the unratified treaty of December 10, 1868, and that the record discloses that the Government has failed to do so in all respects. In its petition, filed with the Commission, appellant made specific and detailed allegations concerning the actions of the United States in its relations and dealings with these seven bands of Indians, and appellant here urges that at the hearing before the Commission, it introduced evidence on each allegation sufficient to warrant a favorable conclusion on this count. A determination of whether or not a course of dealing by the United States with and in relation to bands or a tribe of Indians was in the last analysis fair and honorable, can be made only after a very thorough and careful consideration not only of what was actually done, but also of that which was not done and of the motives and circumstances surrounding and underlying the overt acts of the parties, and their intentions, etc. It is often the case that an action which, on its face, appears to be cruel or shocking to th