Full opinion text
LITTLETON, Judge. These are appeals from decisions by the Indian Claims Commission, Docket No. 11. See 2 Ind.Cl.Com. 335; id. p. 500. The Indians have appealed from the Commission’s final determinations in the first, second, fourth, fifth, sixth, and seventh causes of action. The Govexnment has appealed from the Commission’s final determinations in the third and fourth causes of action and from the Commission’s final determination on offsets. Subsequent to oral argument on appeal, the Indian appellants moved to vacate the Commission’s judgment on the first cause of action and to remand that cause for further proceedings before the Commission in order to permit the Commission to act on a motion there pending concerning this claim. The grounds for the motion herein are changes supervening since the taking of the appeal, and newly discovered evidence. The Government objected to the granting of the motion on the ground, among others, that a decision by this court upholding the Government’s contention that no claim involving so-called Indian title land is cognizable under section 2 of the Indian Claims Commission Act, 25 U.S.C.A. § 70a, would render useless a remand of the first claim which concerns such land. Accordingly, we defer action on Indian appellant’s motion and shall decide it later in this opinion.- We shall first discuss and decide the Government’s overall contention that Congress did not, in enacting the Indian Claims Commission Act, 25 U.S.C.A. § 70 et seq., create any new causes of action, but merely provided a forum in which Indian claimants could sue the United States on only those claims concerning which the United States had already consented to be sued by non-Indians. As pointed out by defendant, the function of recognizing liability in the United States for claims that have no legal or equitable basis under existing law is a political and not a judicial function. We think it is quite clear from the face of the Indian Claims Commission Act that in its passage Congress was, to a certain extent, exercising its political function of creating certain new causes of action and recognizing liability in the United States, if the facts warranted, in connection with such causes. In fact, the Act clearly creates causes of action and permits suit thereon which would not have been possible, and are not possible, as far as we know, between private individuals. In addition, Congress was providing a forum in which these causes of action might be sued on, and also in which the Indians might sue the United States on causes of action available to non-Indians. Clauses (1) and (2) and portions of clause (3) of section 2 merely provide a forum in which Indians may sue the United States in the same manner as non-Indians, except that Congress expressly waived the defenses of the statute of limitations and laches. Clauses (1) and (2) provide as follows: “ * * * (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitied to sue in a court of. the United States if the United States was subject to suit; * * [Italics supplied.] In general, these clauses extend to Indian claimants the benefits of the Tucker Act and the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. Clause (3) provides: “ * * * (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; * Suits for the reformation or revision of contracts for fraud, duress, unconscionable consideration and for mutwal mistake of fact are claims on which the claimant might have brought suit in the Federal courts against the United States if the Government were subject to suit. Accordingly, to this extent, clause (3) merely provides a forum for such suits by Indian claimants. On the other hand, contracts may not be reformed for mutual mistake of law, or for unilateral mistake of law or fact, as provided in this clause. Neither may Federal courts entertain claims requiring the revision of treaties. In these instances, certainly, Congress was creating new causes of action and also was providing a forum in which they might be litigated. Clause (5) provides: “ * * * (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity.” [Italics supplied.] That the above clause creates a new cause of action against the United States seems too obvious for comment. In the first four causes of action the Indian appellants sue on claims which would result if certain treaties were revised for unconscionable consideration under clause (3) of section 2 of the Indian Claims Commission Act, or which would result if the Government's actions did not measure up to the standard of fair and honorable dealings, on the part of the United States, under clause (5). All of the treaties and dealings involved in these four claims concern land held by the Indian appellants by so-called Indian title, i. e., exclusive possession, occupancy, and use from time immemorial. It is the Government’s position that even if Congress did create new causes of action based on revision of treaties for unconscionable consideration, or on lack of fair and honorable dealings by the United States, there is nothing in the Act which indicates a Congressional intent to create a cause of action in the claimant, or to admit the existence of a liability in the Government, where the treaty sought to be revised, or the dealings claimed to be unfair, involve land held by the Indian claimants by aboriginal use and occupancy title (Indian title) rather than reservation or treaty title. This phase of the appeal has been extensively and painstakingly briefed by the parties and by others who have filed helpful briefs amici curiae. Following the recent decision of the Supreme Court affirming this court’s decision in the case of Tee-Hit-Ton Indians v. United States, additional briefs were filed concerning the possible applicability of the decision in that case to this issue in the present appeal. In the Tee-Hit-Ton case the Supreme Court held that “Indian title” interest in land does not give rise in the Indians claiming such title to any rights against the United States under the Constitution or under section 24 of the Indian Claims Commission Act (now codified as 28 U. S.C. § 1505). Nothing in the opinion in that case purports to speak on the question involved in the present controversy, i. e., whether, in enacting section 2(3) of the Indian Claims Commission Act and creating liability in the United States on claims which would result if treaties, etc., between the Indian claimant and the United States were revised on the enumerated grounds, Congress intended to include treaties dealing with Indian-title land; or whether, in enacting clause (5) of section 2, Congress intended to create liability in the United States where it could be shown that the Government acted less than fairly and honorably in its dealings with the Indians in connection with treaties concerning their Indian-title land. While the Supreme Court’s decision is not entirely silent on these questions, it is obvious that it did not intend to decide these questions. We shall discuss such references later in this opinion. In support of their conflicting contentions regarding the legislative intent, both parties have pointed to the language of the statute, its legislative history, special jurisdictional acts to some extent in pari materia, and to various standard rules of statutory interpretation and construction. The parties have made numerous contentions based on various so-called rules of statutory interpretation and construction: that because the Indian Claims Commission Act is a special jurisdictional act giving consent to sue the United States, it must be strictly construed; that because the Act is essentially remedial it must be liberally construed in favor of the class it was intended to benefit and in the light of the evils it was intended to correct; that the Act is unambiguous on its face and that therefore resort to legislative history to determine its meaning is improper; that although the meaning of the words used may be plain, courts may still look to the legislative history to determine whether giving the words their natural significance leads to unreasonable results plainly at variance with the policy of the legislation as a whole, or to determine whether a certain word or phrase has been employed with a more limited or different meaning than might be attributed to it in common practice; that the failure of Congress to include the specific words, i. e., “Indian title land,” requires the conclusion that Congress intended to exclude such words; that unless the language of the statute necessarily excludes certain matters, it may be construed to cover such matters if they come within the spirit or reason of the law, particularly where such coverage does not give the statute a meaning inconsistent with the language used but rather serves to accomplish the purpose of the law and is in harmony with the other provisions of the statute. Rules of statutory interpretation and construction are not legal maxims or ends in themselves, but are rather aids in discovering the meaning to be attributed to the language employed by the legislature. The application of any particular rule may well be affected by other rules in order to avoid absurd results. Whether a statute is to be construed strictly or liberally depends on which construction will make the legislative intent and purpose effective. A liberal construction will not justify an extension of the scope of the statute beyond the obvious contemplation of the legislature, even though the statute be purely remedial in nature and the construction proposed will produce a most desirable result. On the other hand, strict construction will not be applied to defeat the clear intention of the legislature or to produce an absurd result, unless absolutely unavoidable. The Indian Claims Commission Act is both remedial legislation and special legislation. It broadens the Government’s consent to suit and as such is in derogation of its sovereignty. It confers special privileges upon the Indian claimants apart from the rest of the community, and to some extent is in derogation of the common law. This was, we think, because of the peculiar nature of the dealings between the Government and Indians from very early times. On the other hand, it remedies defects in the common law and in pre-existing statutory law as those laws affected Indians, and it was designed to correct certain evils of long standing and well known to Congress. Fortunately, under these circumstances, rules of interpretation and construction are subordinate to the principle that the object of all construction and interpretation is the just and reasonable operation of the particular statute, and accordingly it should be possible to construe the statute liberally to affect its remedial purpose and intent, and strictly to limit undue abrogation of fundamental rights or to prevent undue extension of extraordinary remedies. The Government appellant lays particular stress on the fact that nowhere in clauses (3) and (5) is the expression “Indian title land” employed, and urges that the omission of this expression should not be supplied by the court. Since all mention of “land” is omitted in those clauses, it would seem that a court would be as little justified in implying that Congress meant to include “reservation title land” or “fee simple title land” as it would “Indian title land.” But it manifestly did intend to include land under some title since it is common knowledge that Indian treaties dealt primarily with Indian land and usually provided for cessions of such land held both by “Indian title” and “Reservation title” to the United States. Sometimes the land being ceded was land to which the Indians had aboriginal use and occupancy title which, as a matter of policy, the Government preferred to extinguish by formal treaty rather than by arbitrary action or by appropriation. Sometimes the land was held by reservation or treaty title. At other times the treaty in question covered land held by both types of ownership. Since the language of clauses (3) and (5) does not, in so many words, state whether Congress intended to permit the adjudication of claims thereunder where the land involved was Indian title land, we must endeavor to discover by means of both intrinsic and extrinsic aids to statutory interpretation, what Congress did intend. One step in the discovery of legislative meaning or intent is the ascertainment of the legislative purpose, i. e., the reasons which prompted the enactment of the law. The purpose of the legislature may well tend to reveal the meaning of the language used by the lawmakers since we assume that the legislators sought to use language which would carry out their purpose rather than to defeat it. In seeking to ascertain the legislative purpose, it is proper to look at the circumstances existing at the time of the enactment of the statute, to the necessity for the law, the evils intended to be cured by it, to the intended remedy, and to the law as it existed pri- or to such enactment. From the publication of the so-called Merriam Report in 1928 until the Indian Claims Commission Act of 1946 was enacted, Congress was almost constantly engaged in considering various proposals designed to bring about a settlement of outstanding Indian claims on a fair and equitable basis and in as expeditious a manner as possible. It was generally agreed that settlement of Indian claims by means of suits under numerous special jurisdictional acts was both cumbersome and unsatisfactory. As pointed out by the Secretary of Interior in a letter introduced in the record of Senate Hearings on S. 2731 (June 1935, 74th Cong., 1st Sess.) to create an Indian Claims Commission, most jurisdictional acts were in fact inequitable, and recoveries by the Indians in the Court of Claims on legal and equitable claims under such acts were infrequent, with resulting justifiable dissatisfaction by the tribes and their later return to Congress for further redress. [Hearings p. 4.] In general the bills introduced in both houses were of two kinds. One type of bill merely extended the general jurisdiction of the Court of Claims to cover suits by Indians. Under these bills, only claims of a legal or equitable nature could be brought against the United States. The other type of bill provided for the settlement of legal and equitable claims and also for the settlement of extra-legal or moral claims having no basis in law or equity Beginning with a bill drafted and submitted to the Senate Committee on Indian Affairs during the course of hearings before a subcommittee, 70th and 71st Cong., by the Solicitor of the Department of the Interior, this latter type of bill usually contained provisions which permitted consideration of non-legal or moral claims, including claims which would result if treaties, contracts and agreements between the Indians and the United States were revised on the basis of fraud, duress, mutual or unilateral mistake of law or fact (hereinafter sometimes referred to as the “revision of treaties” clause); claims based on the breach of duty of a Government agent acting within the apparent scope of his authority; claims arising under treaties theretofore negotiated between the claimant and the United States but not formally ratified or executed by all the parties thereto (hereinafter sometimes referred to as the “unratified treaties” clause), and claims based on fair and honorable dealings not cognizable in law or equity. The first group of bills provided for the settlement by negotiation of all pending claims. The next group of bills provided for the investigation of all claims and reports and recommendations thereon to Congress. The last group of bills provided for the hearing and final determination of the same types of claims. The claims provided for in the earliest bills differed little from those included in the various clauses of section 2 of the bill finally enacted into law. A study of the numerous bills relating to the proposed final settlement of Indian claims, the accompanying House and Senate hearings, the House and Senate Committee reports, and the debates on the floors of both Houses, reveals that in enacting the 1946 Indian Claims Commission Act, Congress had certain well-defined purposes in mind. Congress wished to settle all meritorious claims of long standing of Indian tribes and bands whether those claims were of a legal or equitable nature which would have been cognizable by a court of the United States had the United States been subject to suit and the Indians able to sue, or whether those claims were of a purely moral nature not cognizable in courts of the United States under any existing rules of law or equity. Congress was well aware of the fact that before the latter type of claim could be litigated and a judgment secured, it would be necessary for Congress to take the necessary political action of creating a cause of action and recognizing liability in the Government for the wrong implicit in the cause if facts sufficient to establish the cause provided for were presented by the Indian claimant. Consideration of language which would do precisely that was begun in 1928 and culminated in the enactment of clauses (3), (4) and (5) of the Indian Claims Commission Act in 1946. Efforts to prevent the enactment of a bill which would give the Indian Claims Commission jurisdiction to adjudicate and award judgment on claims having no basis in existing rules of law or equity, met with ultimate failure and the purpose of the majority of the legislators to permit the adjudication of such claims is manifest in the clear language of section 2 of the act as passed. We next consider the narrower problem of determining whether or not Congress intended to include in clauses (3) and (5) of section 2 of the Act, claims concerning alleged wrongs to Indian claimants in connection with land held by them under Indian title rather than under fee simple or reservation title. As pointed out earlier in this opinion, the word “land” is not mentioned in either clause, and yet no one suggests that because a particular treaty or course of dealings dealt with land the treaty is not subject to revision under clause (3), or the dealings cannot be scrutinized under the fair and honorable dealings criteria of clause (5). Government appellant does say, however, that when Congress used the term “treaties” in clause (3) it did not mean to include all treaties, but only certain ones, i. e., treaties relating to land held by the claimants under fee simple or reservation title; and that when Congress used the word “dealings” in clause (5), it did not mean all dealings, but rather it meant to exclude from consideration any dealings relative to the claimant’s Indian title land. Indians can obtain a reservation title by treaty, statute or agreement. Since both “treaties” and “dealings” between the Government and the Indians covered numerous subjects including land, it may be said that those words as used in clauses (3) and (5) are general terms. It is true that a court in interpreting a provision in a statute may imply an exception to general terms used therein, but it will do so only where to apply the general term literally would lead to absurd results, contrary to the manifest Congressional purpose as revealed by the statute as a whole and as confirmed by its legislative history. Cf. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226. In the absence of legislative direction to do so, Federal courts cannot consider claims relative to Indian title land. Congress must first create a cause of action and recognize liability in the Government on it, or the court is powerless, under the law as it exists, to adjudicate a claim concerning Indian title land and render judgment thereon in favor of the claimant. In providing for the adjudication of claims which would arise from the revision of treaties or on the basis of fair and honorable dealings, however, Congress was creating causes of action and admitting a liability in the Government on such claims. The question is then, do these newly created causes of action extend to claims falling within their general terms including claims based on property rights in the Indians that are not compensable or justiciable under ordinary rules of law or equity. In the instant case the literal meaning of clauses (3) and (5) does not require the exception urged by Government appellant. Giving the word “treaties” used in clause (3) its natural significance would result in our finding that Congress intended that all treaties were to be included regardless of whether those treaties dealt with Indian title or reservation title land, or, in fact, with no land at all. Nothing in the language of clause (5) indicates a Congressional intent to exclude from its coverage “dealings” relating to Indian title land of the claimant. The court should give the statute the plain meaning indicated by its language unless that meaning is clearly at variance with the legislative purpose as manifested by the whole act and confirmed by the legislative history, in which latter event the court would be justified in following the purpose rather than the literal meaning of the portions of the statute under consideration. Chatwin v. United States, 326 U.S. 455, 464, 66 S.Ct. 233, 90 L.Ed. 198; United States v. American Trucking Associations, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345. Having concluded that a literal reading of clauses (3) and (5) requires the inclusion of claims relating to Indian title land, we next consider whether that interpretation is consistent with other provisions in the statute in the light of the language used in those other provisions, and also in the light of the legislative purpose motivating the passage of the act as a whole. The word “land” is used only once in section 2 and that, is in clause (4) which provides as follows: “ * * * claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; * * *.” [Italics supplied.] Clause (4) not only mentions land specifically, but it characterizes the kinds of property interests intended to be included as (1) land owned, and (2) land occupied. The legislative history of the act is replete with evidence that Congress was acutely aware of the fact that Indians held land in two general ways: (1) by virtue of aboriginal use and occupancy from time immemorial, i. e., by Indian title, and (2) by reservation or treaty title, sometimes known as “recognized” title. Congress was also well aware of the fact that “Indian title” created in the holders of such title no legal rights against the sovéreign, and that its ex-tinguishment by the sovereign through solemn treaty for a consideration, was the result of a long standing policy rather than because of any legal obligation in the sovereign to do so. Both from the language of clause (4) and its legislative history which we shall discuss later, we are of the opinion that Congress intended that Indian claimants should have a cause of action and should be entitled to recover the value of the Indian title lands which had been taken by the Government without the payment of compensation- therefor, whether the Government acquired that land by ratified treaty of cession, or whether the land was taken without the formality of a treaty, even an unratified one. If clause (4) permits Indian claimants to recover for the uncompensated taking (deprivation) by treaty or otherwise of a property right which in itself created no legal right in the owner against the Government, it would seem reasonable to conclude that Congress also intended that the same property right ceded under a ratified treaty of cession for a grossly inadequate consideration, would give rise to a cause of action under clause (3); and also, that where the Government’s dealings with Indians concerning that same property right were less than fair and honorable, the Indians should have a claim under clause (5). A study of the legislative history of the Act as a whole and of those three clauses in particular, persuades us that Congress did so intend. In June 1935, during the course of hearings on S. 2731 before the Senate Committee on Indian Affairs, the Assistant Solicitor of the Department of the Interior testified as follows: “Congress does not appear to learn that a great many claims cannot be settled by the Court of Claims but only by political action, in spite of the fact that all the many claims which sought relief from fraud, duress, or mistake of fact, and which have been sent to the Court of Claims were dismissed for want of jurisdiction.” [Hearings, pp. 10, 11.] As examples of the type of claim that had been rejected by the court as beyond its power to adjudicate, the Solicitor cited, among others, Otoe and Missouria Tribes of Indians v. United States, supra, which involved claims based on the payment of unconscionable consideration under a treaty of cession of land held by the Indians by Indian title, and Sisseton and Wahpeton Band of Sioux Indians v. United States, 1923, 58 Ct.Cl. 302, affirmed 277 U.S. 424, 425, 48 S.Ct. 536, 72 L.Ed. 939, involving a claim based on mistake and misrepresentation as to the acreage of Indian title land ceded to the United States by a ratified treaty of cession. The other cases mentioned by the Solicitor involved claims requiring revision of treaties covering reservation title land. The extra-legal claims over which the Commission was to be given jurisdiction in S. 2731 included (1) claims arising from breach of duty of a government agent acting within the apparent scope of his authority, (2) claims based on unraiifled treaties which had been negotiated between the United States and the Indian claimants, (3) claims based on fair and honorable dealings, and (4) claims which would result if treaties, etc., were revised for fraud, duress, or mutual or unilateral mistake of law or fact. H. R. 7837 (74th Cong., 1st Sess., 1935) was an almost identical bill considered by the House Committee on Indian Affairs. The Commissioner of the Bureau of Indian Affairs testified in favor of the bill and made the following statement in connection with the problems which the bill was designed to solve: “Ever since the beginning of the history of our Government in Indian Affairs the Government has been entering into treaties with Indian tribes and having these treaties, either by agreement or unilateral action, and in later years supplementing them with agreements. Again, it has been acting as the guardian of the Indians in the absence of treaties. It has been recognizing the Indian title to areas of land, extinguishing the Indian claim of title to other areas, and having recognized title repeatedly the Government has changed its mind and altered and diminished them. * * * “Now, out of this total of the past record, extending down to this day, there have grown up innumerable grievances and claims, in some instances resting upon grounds which are definitely legal or ethical (sic) and therefore can be settled in the Court of Claims, that is if they can get passed a jurisdictional act and if the act is drafted with a knowledge of the necessary facts then the case may be settled in the Court of Claims equitably. “A considerable number of the claims and grievances do not grow out of legal facts but essentially out of the moral parts of the record. There are a great many valid Indian claims, valid humanely and morally, but such have no basis in law. * * * ” [House hearings pp. 5 and 6.] In 1937 Congress was considering S. 1902 (75th Cong., 1st Sess.) which was almost identical with S. 2731 and H. R. 7837. At page 3220 of the Congressional Record — Senate, April 7, 1937, Senator Thomas made the following statement concerning S. 1902: “The reason for the bill is the long delay in the consideration of Indian claims before the Court of Claims. In 1927 a measure was enacted giving the California Indians the right to go into court and present their claims. Their case has been pending since 1927. The case was filed by the Attorney General of California, but it is not being prosecuted; nothing is being done. It is to help Indians of that class that the measure before us is being urged. * * * ” [Italics supplied.] On June 23, 1937, the same bill was considered by the House. Speaking in favor of the bill, Representative Dimond stated: “And the case of the California Indians is only an example of what has gone on and is going on all over the country with respect to many of the Indian citizens. Some other measure might be proposed which would work out to better advantage both for the Government and for the Indians, but no such measure is now before us and we all know the difficulties that would be encountered in drafting such a bill and having the same presented and considered.” [Congressional Record — House, p. 6251.] The claims of the California Indians were well known to the Congress. The Government had, in the last century, negotiated some eighteen treaties with certain of those Indians pursuant to which the Indians agreed to cede to the United States lands claimed by them under Indian title. In reliance on those treaties, the Indians left their land. The treaties were never ratified and the Indians were paid nothing for the land involved. Other California Indians, not parties to the treaties, were deprived of their land which was taken by the Government without the payment of any compensation. As indicated above, Congress supposed that the claims of these Indians could be settled under the provisions of the bills then under consideration. The hearings and debates do not mention, in the earlier years, under precisely which provision of the bills those claims could be considered, but the claims of the unratified treaty Indians would seem to fall within the meaning of the following clause which appeared in nearly every bill introduced to settle extra-legal claims from 1935 through 1944: “ * * * claims under all treaties heretofore negotiated between the claimant and the United States but not formally ratified or executed by all of the parties thereto; * * In 1940 there was under consideration S. 3083 (76th Cong., 3d Sess.) to amend the jurisdiction of the Court of Claims to permit Indians to sue therein. It contained a provision that no jurisdictional act theretofore or thereafter passed should be construed by the court to prejudge the nature or merits of a claim in any respect, or to amount to a recognition of liability of any kind, nature or character, in the Government. The Department of Justice explained that this provision was designed to assure that no special jurisdictional act in behalf of Indians could be held by the court to create a right but only to provide a forum for rights recognized under existing rules of law and equity. The Department of the Interior seriously objected to this provision and in a report explaining its position it made the following statement: “ * * * it is appropriate and essential in some types of claims for Congress to recognize a liability by the passage of a jurisdictional act. These types of claims are not those based on the violation of any law, treaty, or agreement of the United States but based upon that sort of injury which the Court of Claims has described as political rather than judicial in nature. Among such claims are (a) Claims based on the taking without compensation of the aboriginal right of use and occupancy of land, the ownership of which by the Indians was never formally recognized by the Government * * [Italics supplied.] [Senate Hearings p. 22] “The legislative history of the California jurisdictional bill indicates that Congress was repeatedly advised of the lack of a strictly legal or equitable basis for the claims and that recovery for the claims, morally compelling, must depend on the exercise by Congress of its political function of recognizing liability for such claims.” [Senate Hearings p. 23] There was general agreement at the hearings that S. 3083 would prevent the Court of Claims from considering any claim arising out of an Indian title interest in land, or any other so-called extra-legal or moral claim, and that its passage would make a nullity of any jurisdictional act then pending or later enacted which permitted suits on such moral claims. The bill was not passed. In the summer of 1940, Senator Thomas introduced two bills providing for the creation of an Indian Claims Commission (S. 4234 and S. 4349, 76th Cong., 3d Sess.), to hear and determine claims of the same type as those specified in numerous similar bills considered from 1935 up to that time. In 1941, another almost identical bill was introduced — S. 1111. This bill provided that the Commission’s final determination should, when reported to Congress, have the effect of a final judgment of the Court of Claims and be paid in like manner. The Department of Justice objected to the passage of the bill for the following reasons, among others: “The provision in question might therefore have the effect of making the Commission not a fact-finding body authorized to report its conclusions to the Congress, but virtually a court with the power to determine claims based upon extra legal and moral grounds. Such a result might have the effect of a surrender by the Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government.” [Letter from Acting Attorney General Francis Biddle, June 12, 1941, appearing at page 6 of Report No. 909 of the Senate Committee on Indian Affairs to accompany S. 1111.] In the 78th and 79th Congresses (1944 and 1945), three additional bills were introduced in the House (H. R. 5569, 78th Cong., 2d Sess., 1944, H. R. 1198 and H. R. 1341, 79th Cong., 1st Sess., 1945). These bills differed from previous bills in that the “revision of treaties” clause contained only the grounds of fraud, duress, and mutual mistake and omitted unilateral mistake and mistakes of law. The usual “fair and honorable dealings” language was also omitted and in its place there appeared a clause reading: “Claims of whatever nature which morally exist though not recoverable by law.” The bills contained no clause relating to claims under “unratified treaties.” In March 1945, the House Committee on Indian Affairs held hearings on H. R. 1198. The Assistant Commissioner of the Bureau of Indian Affairs testified in favor of the bill. He stated that most of the claims that would be brought under the bill would involve the failure of the Government to live up to its obligations incurred under treaties, and the failure of the Government to protect lands “reserved by the Indians and recognized by treaty.” He then stated that another sort of claim was included in the bill’s coverage : “Then too, another set of claims arise from the taking by the Government of lands belonging to the Indians, and without making compensation. Now those lands may have been recognized by treaty or they may not have been recognized by treaty, or the treaty may not have been ratified, as in the case of the California Indians, for instance.” [House Hearings, p. 60.] The Commissioner stated that in his opinion, one of the first cases that would be brought to the Commission, if it were created, would be the case of the California Indians. The Department of the Interior submitted a draft containing its proposed amendments to H. R. 1198. These amendments provided for the reinsertion of the “unratified treaty” clause which had appeared in previous bills; the “revision of treaties” clause was expanded to include mutual and unilateral mistake of law and fact as had previous bills; the old “fair and honorable dealing” language was reinserted in place of the language “claims of whatever nature which morally exist.” The Department’s explanation of the proposed changes was as follows: “The suggested amendments to the first paragraph of this section * * * are for the purpose of defining more exactly the principal classes of Indian tribal claims that might be considered by the Indian Claims Commission. Unratified treaties have been involved, either affirmatively or as a matter of defense, in a number of Indian claims. Instances also exist of claims founded upon unilateral mistakes or upon mistakes of both law and fact. The language ‘fair and honorable dealings’, when applied in conjunction with the other standards established by this section, would provide a yardstick for the adjudication of moral claims.” [House Hearings p. 116.] On June 14, 1945, further amendments to H. R. 1198 were proposed by the Department of the Interior. The ground of “unconscionable consideration” was added to the “revision of treaties” clause. The “unratified treaty” language that had appeared in so many previous bills and had been reinserted in H. R. 1198 on June 11, was omitted and the following language substituted: “Claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant.” These changes were explained as follows: “The changes of phraseology in clause (3) [revision of treaties clause] would give fuller expression to its [Congress’] apparent intent of placing treaties and agreements between the Government and Indian tribes on the same footing with contracts between the Government and non-Indians, insofar as necessary to permit application of the recognized equitable principles under which contracts may be reformed or set aside for fraud, duress, unconscionable consideration, mistake, and kindred wrongs. Additional [sic] of the new clause (5) [the unratified treaty clause substitute] would give express recognition to one ofv the most clearly just and grievously resented classes of claims, that growing out of the scattered instances where lands peaceably held under an uncontested Indian title have been expropriated without an act of cession on the part of the Indians, or where the Government has retained ceded land notwithstanding its failure to ratify or carry out the terms of the cession. * * *” [House Hearings p. 141.] At that time the Committee was fully aware of the fact that a number of special jurisdictional acts were then pending and it was the hope of Congress that passage of the Indian Claims Commission Act would render unnecessary the passage of those special acts. There was prepared and presented to the Committee a list of such tribal claims tentatively formulated but not prosecuted, in connection with which special jurisdictional acts were then awaiting Congressional action. Among them was an act for the Snake or Piute Indians of the Former Malheur Reservation and the land in connection with which that tribe was making its claim was land in which the tribe had only Indian title. H. R. 4497 was substituted for H. R. 1198 and, on May 20, 1946, this bill was debated and passed by the House of Representatives. In the course of the debate, a letter of the Attorney General, was read into the record. In the course of that letter the Attorney General made the following statement: “With respect to section 24, which in effect provides for a general jurisdictional act for all legal claims of Indian tribes arising in the future, I may say that the primary purpose of establishing an Indian Claims Commission, as I understand, is to furnish redress to the Indian tribes with respect to claims arising against the United States during the period of the settlement and expansion of the country. Most of these claims, I assume, are of a moral character and are not based upon legal principles. Thus, the problems presented by .the proposal made in section 24 are quite different from those dealt with in the remainder of the bill. * * * ” [Congressional Record — House, May 20, 1946, p. 5311.] The Attorney General stated that he was unable to recommend enactment of the bill. In June 1946, the Senate Committee on Indian Affairs commenced hearings on H. R. 4497. The Committee members and those testifying, all agreed that the clause providing for claims arising from the taking of lands owned or occupied by the claimant, by treaty or otherwise (then clause (5), later renumbered (4)), would permit suit by both the treaty and non-treaty California Indians for the taking of their Indian title lands. The word “taking” here used with reference to “Indian title” land was obviously not used to denote a taking in the constitutional sense. On July 13, 1946, the Senate Committee met to consider amendments to H. R. 4497 proposed by the Department of Justice. The proposed amendments eliminated the revision of treaties clause, the clause relating to breaches of duty by a Government agent, and the clause relating to the taking of land owned or occupied by the Indians, by treaty or otherwise (the clause substituted by the House for the old “unratified treaty” clause). The Department of Justice representative explained that the clauses eliminated would have created liability in the United States whereas the other clauses did not, but merely provided a forum for legal claims. With respect to the fair and honorable dealings clause, the Department’s representative stated his position to be that a claim could be maintained under that clause only with respect to land where the land held was reservation land, and not if the land was held by Indian title. The representative of the Department of the Interior suggested that the amendments proposed by Justice, when viewed in connection with the legislative history, might be interpreted to mean that the bill as amended by the Senate was intended to give Indian claimants less than the House bill gave them. The Committee Chairman indicated that this was not the case and that the Senate Committee Report would contain a statement to that effect. The Senate Report 1715 did contain a statement that the amendments were designed for the sake of clarification only and were not intended to exclude from consideration of the Commission those claims which the House intended to include. However, the Senate Report also stated that the bill, as amended by it, represented the Committee’s intent to provide only a forum for the Indian claimants to assert their claims and not to prejudge particular claims against the Government. H. R. 4497 as amended by the Senate was passed by the Senate on July 17, 1946. The House of Representatives refused to agree to all the Senate amendments and the bill went to conference. On July 27, 1946, Conference Report No-. 2693 was issued. This report reveals that the conferees of both Houses agreed to reinsert the “revision of treaties” clause and the “unratified treaties” clause in the same form passed by the House. The House agreed to the Senate’s amendment omitting the clause relating to the unauthorized acts of the Government’s agents. The Conference Report, as was customary, did not state the reasons for the reinsertion of the clauses, but the Statement of the Managers on the part of the House contained the following explanation: “The bill, as passed by the House of Representatives, enumerated six classes of claims cognizable by the Commission. The Senate, in the interest of simplicity, reduced these to three, being careful to state in its report, that the change was not intended to deprive the claimants of the right to invoke the jurisdiction of the Commission in any case which would have been cognizable under the language of the bill as it passed the House. Out of an abundance of caution the conferees reinserted two of the classifications struck by the Senate because they wanted to make sure that if any tribal claimant could prove facts sufficient to make a case under either of these classifications, the Commission would have authority to make an award to such claimant. “The first of these classifications, consisting of ‘claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity’ is aptly explained in the report of the House committee. The second of these classifications covers claims arising from the taking by the United States of Indian lands, i. e., lands to which tribal claimants had ‘Indian title’ or the ‘right of occupancy.’ Sometimes these lands were taken under the guise of unratified treaties, sometimes without any semblance of a treaty. The reinsertion of this •classification makes it plain that where claimant can prove sufficient facts within the language of this •classification the Commission has full authority to award proper dam•ages therefor. “Both of the classes of claims reinserted by this amendment may fall within the category of ‘fair and honorable dealings.’ To set them ■forth explicitly helps to clarify the contents of that category.” [Italics supplied.] The statement sets forth that the clause permitting claims on account of breach of duty by an agent of the United States while acting within the apparent scope of his authority was not reinserted because it was felt this claim was sufficiently covered by general law end by the other enumerated causes of .action. From the above it appears that the last efforts to enact an Indian Claims Commission Act which would merely provide a forum for suit on legal claims and would eliminate the possibility of the Indians suing for and recovering on extra-legal or moral claims, involving, among other things, their Indian title land, met with failure. The legislative history of the Act establishes that from the beginning in 1928, certain members of Congress desired the enactment of a bill which would settle extra-legal or moral claims of Indians against the United States, including claims based on their Indian title property right in land which the Government had either taken without the formality of a treaty, or which the Government had acquired under ratified treaties procured by fraud, duress, unconscionable consideration, etc., or concerning which the Government had been guilty of dealings less than fair and honorable. This desire on the part of certain members of Congress became the desire of the majority of Congress and, with the passage of the Act in 1946, became the legislative intent expressed in clauses (3), (4) and (5) of section 2. This meaning, or legislative intent, revealed by the legislative history, merely corroborates the literal meaning of those clauses and renders them consistent with each other and with the legislative purr pose also revealed in the Act’s language and its history. The Supreme Court has not yet considered or decided the issue just discussed, but in a recent decision it has, we think, indicated a view' consistent with the view we take concerning the coverage of section 2 of the Act with respect to claims concerning Indian title land. The claim asserted in The Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, arose under section 24 of the Indian Claims Commission Act as codified by 28 U.S.C. § 1505. Section 24 merely extended to Indian claimants the same rights to sue the United States in the Court of Claims as are possessed by non-Indians. Section 1505 provides: “The Court of Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band or group.” (63 Stat. 102.) The Court held that a claim for just compensation under the Fifth Amendment to the Constitution for the taking by the United States of Indian title land held by Alaska Indians was not justiciable under the above quoted law because Indian title was not such a property interest as would give rise to a causé of action under existing rules of law or equity. In discussing the nature of the petitioner’s claim, the Court stated at page 273 of 348 U.S., at page 314 of 75 S.Ct.: “This is not a case that is connected with any phase of the policy of the Congress, continued throughout our history, to extinguish Indian title through negotiation rather than by force, and to grant payments from the public purse to needy descendants of exploited Indians. The legislation in support of that policy has received consistent interpretation from this Court in sympathy with its compassionate purpose.” Footnote 2 to the above statement first cites the Indian Claims Commission Act as an example of the legislation in support of the described policy. It also cites Worcester v. Georgia, 6 Pet. 515, at page 582, 8 L.Ed. 483. At the page to which the court refers, the following statement appears: “The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense.” The court next refers to pages 87 and 89 of Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, at pages 41 and 42, 63 L.Ed. 138, where the following language appears: “ * * * The question is one of construction — of determining what Congress intended by the words ‘the body of lands known as Annette Islands.’ “As an appreciation of the circumstances in which words are used usually is conducive and at times is essential to a right understanding of them, it is important, in approaching a solution of the question stated,-to have in mind the circumstances in which the reservation was created —the power of Congress in the premises, the location and character of the islands, the -situation and needs of the Indians and the object to be attained. * * * “This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 56 L.Ed. 941, * * The Court then refers to page 354 of United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, at page 255, 86 L.Ed. 260, on which page the following language appears: “But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards. As stated in Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941, the rule of construction recognized without exception for over a century has been that 'doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.’ ” Later in its opinion in the Tee-Hit-Ton case, 348 U.S. at pages 281, 282, 75 S.Ct. at page 318, the Court stated: “No case in this Court has ever held that taking of Indian title or use by Congress required compensation. The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability. 60 Stat. 1050.” The Indian Claims Commission Act of 1946 begins on page 1049 of 60 Stat. On page 1050 appears section 2 of that Act, under clauses (3) and (5) of which Indian appellants in the instant case are suing. Under all the circumstances discussed above, we can find no valid reason for implying the exception to clauses (3) and (5) urged by Government appellant and holding that the words “treaties” and “dealings” used in those clauses were not intended by Congress to include treaties and dealings concerning Indian title land. We accordingly hold that the Commission had jurisdiction to hear and determine and make final awards in connection with Indian appellant’s claims involving Indian title land under clauses (3) and (5) of the Act, and the Commission’s holding to this effect is affirmed. We shall now consider the several issues raised on the appeals from the Commission’s final determinations on the seven causes of action. First Cause of Action This cause of action is urged under section 2(3) or, in the alternative, under section 2(5) of the Indian Claims Commission Act. Indian appellants allege that because of duress and for an unconscionable consideration, they ceded their land to the United States under three treaties, i. e., Treaty of July 15, 1830, 7 Stat. 328, Treaty of October 15, 1836, 7 Stat. 524, and Treaty of March 15, 1854, 10 Stat. 1038. In the alternative, Indian appellants allege that the Government’s dealings with them in connection with the land ceded were not fair and honorable. The Commission dismissed the first case of action on the ground that there was no substantial proof in the record that the claimants actually and exclusively occupied and possessed at any time, any definite and ascertainable portion of the land ceded. The Commission found (finding 6) that at the time of the 1830 treaty, the lands described in Article 1 of the treaty were used, occupied, and hunted over by a number of Indian tribes, including those who were parties to the treaty, but that no one tribe had exclusive possession of any definite area thereof. On March 1, 1955, the Indian appellants filed a motion in this court asking the court to vacate the determination of the Indian Claims Commission dismissing the first cause of action and to remand the case so far as that cause of action is concerned, in order to permit the Commission to act on a motion pending before it filed by the Otoe and Missouria Tribe, to determine its claim concerning the land ceded by the Treaty of July 15, 1830, supra, on the basis of the record in the case of Iowa Tribe, v. United States, Docket 138, and the record relating to the first cause of action in the instant case. It is Indian appellants’ position that evidence adduced in the Iowa case from the testimony of one of the Government’s expert witnesses, has a direct bearing on the claims asserted by the Otoe and Missouria claimants in the first cause of action herein and that its consideration by the Commission might well lead to a determination favorable to the claimants herein on the first cause of action. In opposing the motion,- the Government does not contend that the record before the Commission on the claimant’s first cause of action was a complete record, but it says that the material bearing on that claim and presented to the Commission in the Iowa case was as available to the Otoes as it was to the Iowas or to the Government through whose witness it was adduced. If this were ordinary adversary litigation, we should be inclined to deny the motion. However, as we pointed out in the case of Pawnee Indian Tribe of Oklahoma v. United States, 109 F.Supp. 860, 124 Ct.Cl. 324, Congress was desirous that these claims be “cleaned up” and decided on the fullest possible records and to that end it went so far as to provide for the establishment of a Division of Investigation within the Commission to make, where necessary, an independent search and investigation into the facts and make available to the parties any data so discovered. In the Pawnee case the facts and data on the basis of which the court remanded the case to the Commission for further consideration, were not called to the attention of the court or the Commission by either of the parties. In the instant case, the claimants have called the attention of the Commission and this court to data which, it appears, does have some material bearing on the first cause of action. It is true, as pointed out by the Government, that claimants could have, with the exercise of diligence, developed these facts and presented them to the Commission at the time of the trial, and we are not excusing counsel for failure to do so, but we cannot ignore the emphasis placed by Congress on the necessity that these cases be settled finally on the most complete records available to insure that at some later date the claimants will not again press Congress for special legislation to permit the litigation of matters not fully explored. Since we find it necessary to remand the case on another issue, we shall accordingly allow Indian appellants’ motion to vacate the Commission’s final determination in the first cause of action and remand the cause for further proceedings. Second Cause of Action This cause of action is urged under clauses (3) and (5) of section 2 of the Act, and is concerned with Articles X and XI of the Treaty of July 15, 1830, supra, and the Government’s actions in connection with the subject matter of those articles. Article X provided in part as follows: “The Omahas, Ioways and Ottoes, for themselves, and in behalf of the Yanckton and Santie Bands of Sioux, having earnestly requested that they might be permitted to make some provision for their half-breeds, and particularly that they might bestow upon them the tract of country within the following limits, to wit; * * * it is agreed that the half-breeds of said Tribes and Baiids may be suffered to occupy said tract of land; holding it in the same manner, and by the same title that other Indian titles are held: but the President of the United States may hereafter assign to any of the said half-breeds, to be held by him or them in fee simple, any portion of said tract not exceeding a section, of six hundred and forty acres to each individual. And this provision shall extend to the cession made by the Sioux in the preceding Article.” Article XI provided: “The reservation of land mentioned in the preceding Article having belonged to the Ottoes, and having been exclusively ceded by them; it is agreed that the Omahas, the Io-ways and the Yanckton and Santie Bands of Sioux shall pay out of their annuities to the said Ottoe Tribe, for the period of ten years, Three hundred Dollars annually; of which sum the Omahas shall pay one hundred Dollars, the Ioways one hundred Dollars, and the Yanckton and Santie Bands one hundred dollars.” The Commission found that the United States had not requested or suggested that the Otoes cede any part of their lands to the halfbreeds, but that it merely acceded to the desires of the Indians and thereafter acted as trustees for the halfbreeds, holding and allotting the major portion of the lands to them as provided in the treaty. The lands were allotted and patents issued to the half-breeds, and the Otoes received the $3,000 stipulated in the trea