Full opinion text
MADDEN, Judge. The Indian claimants and the United States have filed cross appeals from a final determination rendered by the Indian Claims Commission in their Docket Nos. 67 and 124. This determination was made in three stages. In its first decision, 2 Ind.Cl.Comm. 617, 645 (March 26, 1954), the Commission held that the Miami Tribe had so-called “recognized” title to 4,291,500 acres of land located in the State of Indiana and ceded to the United States under the Treaty of October 6, 1818, 7 Stat. 189, and that because of such recognition the claimant Indians did not have to prove their exclusive use and occupancy of the land ceded. The Government, defendant below, has appealed from this holding. In its second decision, 4 Ind.Cl.Comm. 346, 408 (September 17, 1956), the Commission found that as of the date the land was ceded to the United States it had a fair market value of 75c per acre and the Commission held that because the difference between that value and the purchase price of 6.4c per acre paid for the land was an unconscionable discrepancy within the meaning of section 2(3) of the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C.A. § 70a(3), the Indian claimants were entitled to a judgment for the difference. The Government has appealed from this decision on the ground that the ultimate finding of 75^ per acre market value for the land in 1818 is not supported by the primary findings made by the Commission, that some of the primary findings are not supported by substantial evidence, and that on the basis of the record as a whole the Commission could not reasonably have reached a fair market value of more than 200 per acre. The Indian claimants have also appealed from this decision on value on the same ground that the ultimate finding of 750 per acre market value in 1818 is not supported by any of the primary findings of the Commission, but except for certain findings which the Indian claimants urge are not properly findings at all, the Indian claimants do not attack the correctness of the primary findings but contend that they lead irresistibly to an ultimate finding of market value of the land in an amount in excess of 750 per acre. In its third decision relating to offsets, 5 Ind.Cl.Comm. 494, 516 (September 30, 1957) the Commission allowed $280,500 as a “payment on the claim” and the Government has appealed from this decision on the ground that as a matter of law it is entitled to certain additional deductions. We first turn to the question of whether the Indian Claims Commission erred as a matter of law in holding that the claimant Indians’ title to the land ceded to the United States under the 1818 Treaty had been recognized and acknowledged by the United States so that the claimant Indians were not required to prove their exclusive aboriginal use and occupancy of the area from time immemorial down to the time of the 1818 cession. We shall review the facts on which the Commission based its conclusion that the United States had, prior to the Treaty of 1818, recognized in the claimant Indians their right of permanent use and enjoyment of the land ceded by the Treaty in 1818. Following the conclusion of the Revolutionary War, much of the territory ceded to the United States by Great Britain east of the Mississippi River was occupied by Indian tribes, many of whom were hostile to the United States and far from at peace with -each other. It was the desire of the new Government to conciliate these hostile tribes and to bring about a state of peace between the tribes themselves. To both the Indians and the white inhabitants of the United States land was a matter of paramount importance and the settlement of disputes concerning conflicting claims thereto was a continuing concern of Congress. In order to bring about a more tranquil state of affairs between the Indians themselves and between the Indians and the white inhabitants of the United States, the Government negotiated numerous treaties of peace and friendship for the establishment of boundaries between the areas of land occupied and used by the tribes and those areas of land claimed and used by the United States, as well as the establishment of boundaries between the lands claimed and used by the various tribes themselves. On July 13, 1787, Congress enacted an Ordinance for the Government of the Territories of the United States northwest of the Ohio River known as the Northwest Ordinance. On August 7, 1789, this ordinance was reenacted to adapt its provisions to the Constitution of the United States, 1 Stat. 50. The ordinance printed in the margin of 1 Stat. pp. 50-53 provided for the government of a territory which later became the states of Ohio, Indiana, Illinois and Michigan. In Article III it was provided : “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.” In 1794, in pursuance of the policy expressed in the above quoted provision of the Northwest Ordinance, General Anthony Wayne was appointed a commissioner to negotiate a treaty with the hostile tribes of the Northwest Territory. In his treaty instructions it was emphasized that he should attempt to bring about an agreement concerning a dividing boundary line between lands used and occupied by the Indian tribes in the territory and the lands which belonged to the United States. He was also instructed to establish the boundry lines between the lands owned by the separate tribes in the territory. He was authorized to guarantee to the Indian tribes the right to the soil in the lands owned by them as against any citizens or inhabitant of the United States. During the course of the negotiations with the Wyandots, Delawares, Shawnees, Ottawas, Chippewas, Pottawatamies, Miamis, Eel River, Weas, Kiekapoos, Piankishaws and the Kaskakias, it became apparent that it would not at that time be possible to persuade the tribes to agree to definite boundaries between their separate areas of occupation and accordingly his treaty instructions were altered to permit him to make a single treaty with all of the tribes establishing the overall boundaries of the land owned by all of them without defining inter-tribal boundaries. The treaty was negotiated at Greenville and executed on August 3, 1795. 7 Stat. 49. The purposes of the treaty were declared to be to put an end to destructive warfare, to settle all controversies between the treaty parties, and to restore free intercourse between the Indian tribes and the United States. In Article III of the Treaty of Greenville a general boundary line between the lands agreed to be owned by the United States and the lands agreed to be owned by the Indians was described. This line, known as the Greenville Line of 1795, began at the mouth of the Cayahoga River on Lake Erie at a point in the western part of Ohio where Cleveland is now located. From the mouth of the river the line ran south about 70 miles to Fort Lawrence, Ohio, thence west across the center part of the state to the border of what later became the state of Indiana at Fort Recovery on a branch of the Wabash River. The line then went southwest at a slight angle to the Ohio River on the border between Indiana and Kentucky to a point on that border about 25 miles west of the Ohio state line. In that same article of the treaty the Indian tribes, in consideration of the peace established, of goods already received and to be received thereafter from the United States, and to indemnify the United States for injuries and expenses sustained during their war, ceded and relinquished all of their claims to the land lying to the east and to the south of that line. This cession is identified on Royce’s map of Indiana and Ohio as Area 11 and the cession included about two-thirds of the state of Ohio south of the line, and a little less than one-third of the eastern part of that state, plus a narrow triangle of land in eastern Indiana. In addition to this large cession, the tribes ceded to the United States some 16 small tracts of land in Ohio and Indiana which were occupied by various Government installations, and the Indians agreed to allow the people of the United States free passage by land and water through the Indian country lying along the chain of posts included in the 16 small cessions, and the free use of harbors and the mouths of rivers along the lakes adjoining the Indian territories for the shelter of vessels and the landing of cargoes. In Article IV of the Treaty of Green-ville, the United States agreed to relinquish to the Indian signatories to the treaty Indian lands lying north of the Ohio River, east of the Mississippi River, and west and south of the Great Lakes and the waters uniting them, according to the boundary line agreed on by the United States and Great Britain in the Treaty of 1783, 8 Stat. 80, reserving to the United States four tracts of land in-eluding one located at the post of Fort Vincennes on the Wabash River in southwestern Indiana. This “relinquishment” on the part of the United States was stated to be made in consideration of the peace established and of the cessions and relinquishments of lands made by the Indians in Article III and was intended to indicate the liberality of the United States and to represent “the great means of rendering this peace strong and perpetual.” In return for the cessions made by the Indians to the United States, the United States agreed to deliver to the Indians certain annual allowances in varying amounts. In Article V of the Treaty of Green-ville it was declared precisely what was intended to be the meaning of the “relinquishment” made to the Indians by the United States of the land in Article IV of the treaty. Article V of the Treaty of Greenville provides as follows: “To prevent any misunderstanding about the Indian lands relinquished by the United States in the fourth article, it is now explicitly declared, that the meaning of that relinquishment is thus: The Indian tribes who have a right to those lands, are quietly to enjoy them, hunting, planting, and dwelling thereon so long as they please, without any molestation from the United States; but when those tribes, or any of them, shall be disposed to sell their lands, or any part of them, they are to be sold only to the United States; and until such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same. And the said Indian tribes again acknowledge themselves to be under the protection of the said United States and no other power whatever.” In Article VI of the treaty it was provided that any citizen or inhabitant of the United States who might settle upon the lands relinquished by the United States to' the Indians would be out of thé protection of the United States and the particular tribe on whose land such a settlement might be made could drive the settler off or punish him in any manner the tribe thought fit. The article also provided that because such settlements would be injurious to the Indians and to the United States, the United States would be at liberty to break such settlements up, to remove and punish the settlers and thus protect the Indian lands guaranteed in the previous articles. In Article VII of the treaty the Indians were given the right to hunt within the land which they had ceded to the United States, as long as they behaved properly. In Article VIII it was provided that trade would be opened with the Indian tribes and that the tribes would afford protection to properly licensed traders. Article IX provided for an orderly settlement by the Indian superintendent of any disputes that might arise. It also provided that if a tribe planned to make war against the United States, any tribe learning of such intention should immediately give notice to the commanding officer of the troops of the United States at the nearest post. In return, the United States agreed to give notice to the Indians of any harm which it learned might be planned against the tribes. Although the Treaty of Greenville did not establish boundaries between the lands of the various signatory tribes, the tribal representatives to the treaty understood that the United States was dealing with each tribe independently of the others and that boundaries would be established as between the various tribes by future negotiations. The work of defining these boundaries preparatory to seeking further cessions of the lands declared to belong to the Greenville Treaty Indians was entrusted to William Henry Harrison who became Governor of the Indiana Territory and Superintendent of Indian Affairs. After making a thorough study of the problem of inter-tribal boundaries, Governor Harrison commenced his project by negotiating a treaty with the Greenville Treaty Indian tribes on June 7, 1803, 7 Stat. 74. In Article I of that treaty it was noted that the boundaries of the tract of land located at Fort Vincennes in southwestern Indiana, which the United States had reserved for its use in Article IV of the Treaty of Greenville, had been difficult to determine but that the boundaries had now been agreed upon. This area of land known as the Vincennes Tract is Area 26 on Royce’s map of Indiana. On August 18, 1804, Governor Harrison negotiated a treaty with the Delaware Tribe of Indians, 7 Stat. 81. In Article 1 of that treaty, the Delaware tribe ceded to the United States all their right and title to a tract of country bounded on the south by the Ohio River, on the west by the Wabash River, on the north by the tract ceded by the Treaty of Greenville (1795) and redefined by the Treaty of Fort Wayne (1803) (the Vincennes Tract) and the road leading from Vincennes to the Falls of Ohio. In Article 4 of this treaty it was stated that the Delaware tribe had exhibited to Governor Harrison sufficient proof of its right to all the country lying between the Ohio River and the White River and that the Miami tribe, who were the original owners of the upper part of that country, had explicitly acknowledged the title of the Delawares at a tribal council held at Fort Wayne in June 1803. The United States then agreed that it would in the future consider the Delaware tribe as the rightful owners of all the country bounded by the White River on the north, the Ohio on the south, the general boundary line running from the mouth of the Kentucky River on the east (the Green-ville Line) and one of the northern boundaries of the tract ceded in Article 1 of the treaty and that ceded by the Treaty of Greenville (the Vincennes Tract) on the west and the southwest. This article of the treaty thus identified a tract of land in southern Indiana as being the sole property of the Delawares. In Ai'ticle 5 of the Treaty of August 18, 1804, it was stipulated that the United States would negotiate with the Piankishaw tribe to secure its acknowledgment of the title of the Delawares to-the tract of country ceded in Article 1 of the treaty. On August 27, 1804, the Piankishaws agreed (7 Stat. 83) to the cession of the Vincennes Tract covered' by the Treaty of Greenville, and to the cession of land south of that tract by the Delawares in Article 1 of the Treaty of August 18, 1804. The Delaware cession of land to the south and east of the Vincennes Tract is Area 49 on Royce’s map of Indiana. On August 26, 1805, Governor Harrison wrote to the Secretary of War stating that the Miami Tribe of Indians; would not agree to recognize the Delaware claims set forth in Article 4 of the 1804 Treaty with the Delawares to the country between the White River and the Ohio River east of the Vincennes Tract. Governor Harrison stated that he was finally persuaded that the Miamis had not intended in the 1803 Council at Fort. Wayne to concede or recognize any right, or title in the Delaware Tribe to that, tract and so he proposed to take a cession-of the disputed area from the Miamis. In the same letter, Governor Harrison-stated that the Pottawatomies had finally given up any right to interfere in-future sales of land which might be made-by the Miamis on the Wabash River and its waters, stating “The guarantee of those lands to the three tribes, who call' themselves Miamis, could not be avoided, as they insisted upon it with the most persevering obstinacy but, I conceive-that it will be no difficult matter to get them, in the course of a few years, to-make a division of the land they now hold in common. At any rate, a point, of much consequence has been gained, by getting the other tribes to acknowledge-their [Miamis’] exclusive title to the country of the Wabash, above the Vincennes Tract.” Governor Harrison was discussing his negotiations in connection with the Treaty of Grouseland (near Vincennes, Indiana) executed August 21, 1805, 7 Stat. 91. This treaty was between the United States and the Miamis, Delawares, Pottawatomies, Eel River, and Weas. In Article I of that treaty it was stated that whereas by the fourth article of the 1804 treaty with the Delawares the United States had agreed to consider the Delawares as the owners of the land bounded by the White River on the north, the Ohio on the south, the Greenville Line on the east and the Vincennes Tract on the west, and whereas the Miami Tribe from whom the Delawares derived their claim insisted that they had never intended to convey to the Delawares more than a right to occupy that land temporarily, the Delawares, for the sake of peace, had decided to relinquish their claim to that tract and to release the United States from the guarantee made in Article 4 of the 1804 treaty. In Article II of the Treaty of Grouseland the Miamis, Eel River and Wea tribes ceded to the United States the tract of land described in Article I identified on Royee’s map of Indiana as Area 56, and in Article III, in consideration of such cession, the United States undertook to give the three tribes additional permanent annuities of $600 to the Miamis, $250 each to the Eel River and the Weas. In Article IV of the Treaty of Grouse-land it was stated that since the Miamis, Eel River and Weas considered themselves to be one nation and were agreed that none of them would dispose of any part of the country held in common, the United States agreed to consider them as owners “of all the country on the Wabash and its waters, above the Vincennes Tract, and which has not been ceded to the United States, by this or any former treaty; and they do farther engage that they will not purchase any part of the said country without the consent of each of the said tribes.” Article IV contained a proviso that nothing in the treaty would be taken to weaken any claim which the Kickapoos might have to the country which they occupied on the Vermillion River (northwestern Indiana) . In Article V the Pottawatamies, Miami, Eel River, and Wea tribes acknowledged the right of the Delawares to sell the tract of land already conveyed to the United States in Article I of the 1804 treaty (Royce Area 49 in Indiana). On September 30, 1809, Governor Harrison negotiated a treaty with the Delawares, Pottawatamies, Miamis, and Eel River Miamis at Fort Wayne, Indiana, 7 Stat. 113. In Article 1 of this treaty the four tribes ceded to the United States a, tract of land lying just north of the Vincennes tract in western Indiana and indicated on Royce’s map of Indiana as Area 71. In the same article these tribes also ceded a narrow strip of land on the eastern edge of Indiana bounded on the east by the Greenville Treaty Line and on the south by the Grouseland Line (Royce’s Area 56). In the second article of the treaty the Miamis acknowledged the equal right of the Delawares with themselves “to the country watered by the White River” and it was stipulated that neither party could dispose of the same without the consent of the other. In Article IV of the treaty it was stated that all the stipulations made in the Treaty of Greenville of 1795 respecting the manner of paying annuities and the right of the Indians to hunt upon the lands should apply to the annuities granted and the lands ceded in the Treaty of Fort Wayne. In Article 5 it was noted that the consent of the Wea tribe would be necessary to complete the title to the first tract ceded in western Indiana (Royce Area 71) and that a separate treaty would therefore be entered into between the Weas and the United States. In Article 9 of the Treaty of Fort Wayne the signatory tribes agreed to cede to the United States an area of land on the. northwest side of the Wabash above the Vincennes Tract in the vicinity of Raccoon Creek if the Kickapoos should agree to such a cession (Royce’s Area 73 in Indiana). By the Treaty of October 26, 1809, 7 Stat. 116, the Weas gave their consent to the Treaty of September 30, 1809, in connection with Royce’s Area 71 ceded in Article 1 of the latter treaty. In the Treaty of December 9, 1809, with the Kickapoos, 7 Stat. 117, that tribe gave its consent to the cession of Royce’s Area 73 in then ninth article of the Treaty of September 30, 1809, and also .agreed to cede to the United States an .additional tract lying just above Area 73 and identified as Area 74 on Royce’s map of Indiana. In the Treaty of June 4, 1816, at Fort Harrison, Indiana, 7 Stat. 145, the Weas and Kickapoos recognized and confirmed the Treaty of Greenville of 1795 and all subsequent treaties made by them. In Article 3 they confirmed the boundary line surveyed and marked by the United States of the two tracts of land on the Wabash and the White Rivers ceded in Article 1 of the Treaty of Fort Wayne on September 30, 1809 (Royce's map of Indiana Areas 71 and 72). The Kickapoos acknowledged that by the terms of the Treaty of December 9, 1809, they had ceded to the United States the tract identified as Area 74 on Royce’s map of Indiana. In the Treaty of September 29, 1817, 7 Stat. 160, the Wyandots, Senacas, Delawares, Shawnees, Pottawatomies, Ottawas, and Chippewas ceded a tract of land in Ohio (Royce's Area 87 on the map of Ohio) which included a small triangle of land between the Miami and the St. Mary’s Rivers in northeastern Indiana (identified as Area 87 on Royce's map of Indiana). By the Treaty of October 2, 1818, at St. Mary’s, Ohio, 7 Stat. 185, the Pottawatomies ceded a tract of land in northwestern Indiana on the western and north banks of the Wabash River identified on Royce’s map of Indiana as Area 98. In another treaty on October 2,1818, at St. Mary’s, Ohio, with the Wea tribe, 7 Stat. 186, the Weas ceded to the United States all the lands claimed and owned by them in the states of Indiana, Ohio and Illinois and reserved to themselves a tract of land which was later found to be within the cession made on October 6, 1818, by the Miamis (Royce’s map of Indiana Area 114). In a treaty of October 3, 1818, with the Delawares, 7 Stat. 188, the Delawares ceded all their claims to land in the state of Indiana, and the United States agreed to provide the Delawares with land west of the Mississippi River. In the spring of 1818 three commissioners were appointed to negotiate treaties with the Miamis and other Indian tribes in Indiana for the cession of the lands watered by the Wabash and the White Rivers. In the letter of May 2, 1818, from the Secretary of War to the treaty commissioners it was stated that because that part of Indiana to which Indian title had already been extinguished was of an “inconvenient form” it was the object of the prospective treaty negotiations to acquire from the tribes such additional cessions “as, being added to the present, will render it more convenient and compact.” In a letter to the Secretary of War, dated June 19, 1818, from Governor Cass, one of the treaty commissioners, he stated that because the country owned by the Miamis in Indiana and desired by the Government was “probably equal to any in the world,” he recommended that powerful inducements would be necessary to persuade the Miamis to make the cession and that the inducements should be “visible and immediate” rather than “prospective and contingent.” Neither the War Department records nor the records of the Indian Office contain the journal of the proceedings of the commissioners with the Miamis in connection with the negotiation of the 1818 Treaty but the War Department records do contain the report dated October 28, 1818, made by Governor Jennings, one of the treaty commissioners, to the Secretary of War, relative to the treaties executed in October of 1818 with the Miamis and the other Indians in Indiana. In the treaty instructions the commissioners had been told that they might, if absolutely necessary, grant reservations for the use of the tribe and make individual grants to influential chiefs and half breeds but with the qualification, in connection with the latter grants, that they could be disposed of only with the consent of the President. It was the desire of the Government even at that early date to move the Indians in Indiana west of the Mississippi River if it were possible to procure the consent of the tribes to such a move. At that time the Miamis would not even consider moving. In Governor Jennings’ report he stated that he was unable to avoid giving the Miamis the large reservations they demanded and that he had had to grant certain tracts of lands to individuals. With respect to the large reservations made for the Miamis, Governor Jennings stated: “To the large reservations made on account of their villages, the Indians have no higher title than that by which they formerly held the same before the cession;” In connection with the individual grant to Richardville, the principal chief of the Miami tribe, Governor Jennings stated that without Richardville’s influence the treaty might not have been negotiated and that on the occasion of the Treaty of Fort Wayne in 1809 it was Richardville who persuaded the Miamis to agree to a joint tenancy with the Delawares to the land watered by the White River. Governor Jennings also pointed out that while the annuity to the Miamis was disproportionately larger than the annuities granted to the other tribes, this was necessary because the Miamis’ claim to the lands was much more extensive. In the Treaty of October 6, 1818, 7 Stat. 189, the Miamis ceded to the United States the area of land involved in the present appeal, i. e., Area 99 on Royce’s map of Indiana. The boundaries of this area had been fairly well established by the cessions and agreements described in the above-mentioned treaties, i. e., on the northeast by the boundaries of tract 87 ceded in the Treaty of September 29, 1817, 7 Stat. 160, on the east by the western boundary of Royce’s Area 72 ceded on September 30, 1809; on the south by a part of the northern boundary of Royce’s Area 56 ceded in the Treaty of Grouseland August 21, 1805; on the southwest by the northern boundary of Royce’s Area 71, ceded by the Treaty of September 30,1809, and on the northwest by the southeast boundary of Royee’s Area 98 ceded on October 2, 1818, and on the north and northwest by the Wabash River. In Article 2 of the Treaty of October 6, 1818, certain reservations were carved out of the area ceded for the use of the Miamis, and in Article 3 the United States granted certain tracts of land in fee simple to the principal chiefs of the Miamis and to other individual Miami Indians. In Article 4 the Miamis assented to the Kickapoos’ cession of Royce’s Area 74 made to the United States in the Treaty of December 9, 1809. In Article 5 the United States agreed to pay to the Miamis a perpetual annuity of $15,000, together with all other annuities under former treaties, all to be paid in silver. The United States also agreed to build for the Miamis a gristmill and a sawmill wherever the chiefs might wish them built, and to provide a blacksmith and a gunsmith and to give the tribe agricultural implements and 160 bushels of salt annually. This October 6, 1818, cession of Royce’s Area 99 was the last large cession in Indiana of land relinquished by the United States to the signatory tribes of the 1795 Treaty of Greenville. On the basis of the above facts the Indian Claims Commission concluded that in the Treaty of Greenville (1795) the United States intended to and did recognize the right and title of all the signatory tribes, including the Miamis, the Weas and the Delawares, in the land relinquished by the United States within the area described in Article IV of that treaty, and that by subsequent treaties, including particularly the Treaty of Grouseland (1805) and the Treaty of Fort Wayne (1809), the areas owned by the separate tribes, including the claimants herein, were identified and located and again acknowledged by the United States to be the exclusive property of the respective tribes. The Commission also found that on October 2, 1818, the Weas ceded to the United States 815,000 acres to which that tribe had recognized title in the western part of Area 99 (7 Stat. 186), and that on October 3, 1818, the Delaware Tribe ceded to the United States its recognized one-half interest in 3,859,000 acres in the southern part of Area 99, being the country watered by the White River. The Commission also found that on October 6, 1818, the Miami Tribe had recognized and exclusive title to 4,291,-500 acres of land in Area 99 (7 Stat. 189). The Commission also found that the Pottawatomies, the Kickapoos and the Six Nations had not established any interest in Area 99. Inasmuch as there is before us no final determination involving the claims of the Weas and the Delawares, we do not pass on the Government’s contentions as to the Commission’s findings and conclusions on the amount of land owned by them and ceded to the United States in October 1818. With respect to the amount of land ceded by the Miamis on October 6, 1818, and the nature of their title to that land, we are of the opinion that on the basis of the facts of record and the applicable law as expressed in a number of court decisions of this court and the Supreme Court, the Commission is correct in its conclusion that the Miamis had recognized title to 4,291,500 acres of land in Indiana ceded to the United States in 1818. Where Indian lands are held by so-called Indian title, i. e., aboriginal use and occupancy title, their right to occupy the land and to use it is permissive and temporary and this right or title may be extinguished by the United States at any time, with or without the consent of the Indians, and by any means which the sovereign may deem appropriate. In the absence of special legislation conferring upon some court or commission jurisdiction to adjudicate matters relative to this permissive right of occupancy, the Government’s disposition of such right is a political and not a judicial matter. Northwestern Band of Shoshone Indians v. United States, 95 Ct.Cl. 642, affirmed 324 U.S. 335, 65 S.Ct. 690, 89 L.Ed. 985. Where Congress has by treaty or statute conferred upon the Indians or acknowledged in the Indians the right to permanently occupy and use land, then the Indians have a right or title to that land which has been variously referred to in court decisions as “treaty title”, “reservation title”, “recognized title”, and “acknowledged title.” As noted by the Commission, there exists no one particular form for such Congressional recognition or acknowledgment of a tribe’s right to occupy permanently land and that right may be established in a variety of ways. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314; Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; State of Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954. In the instant case the Commission was of the opinion that the language contained in the provisions of the Treaty of Green-ville was sufficient in itself to show the intention of the United States to “recognize” the Indians’ title in the land, but the Commission did not rest its conclusion on the Greenville Treaty alone but referred to the instructions to the Treaty Commissioner, the negotiations between the Commissioner and the Indian tribes, the report of the Treaty Commissioner concerning the negotiations and the treaty agreed upon, as well as the language of subsequent treaties and the circumstances surrounding them involving the rights of the Greenville Treaty Indians in the land relinquished by the United States in Article IV of that treaty. Turning first to the language of Article IV of the Treaty of Greenville, we note that it states that the United States “relinquish their claims to all other Indian lands” within a well defined area, reserving therefrom certain specific tracts of land for the use of the United States. This relinquishment was stated to be in consideration of the peace which had been established between the Indians, and the United States, and of the cessions and relinquishments of land made by the Indians to the United States in Article III of the treaty. Further consideration for the relinquishment made by the United States was the permission it secured from the Indians in Article III to allow the people of the United States free passage by land and water through country belonging to the Indians along a chain of some 16 posts on tracts of land ceded to the United States by the Indians, and also for permission to the people of the United States to use the harbors and mouths of rivers along the lakes adjoining the Indian lands. It seems obvious from the language of Articles III and IV of the Greenville Treaty that the parties intended to extinguish Indian title to some areas, to confirm Indian title in, and grant permanent possessory rights to, other areas, and to secure from the Indians their relinquishment of mere claims or pretenses of claims to further areas. As further consideration for the cessions, relinquishments and rights given by the Indians to the United States, the United States undertook to give to the Indians permanent annuities in the form of goods to be delivered annually to each tribe. In Article V of the Treaty of Greenville the meaning of the “relinquishment” of the land north and west of Greenville ceded to the Indians by the United States in Article IV is spelled out as follows: “To prevent any misunderstanding about the Indian lands relinquished by the United States in the fourth article, it is now explicitly declared, that the meaning of that relinquishment is this: The Indian tribes who have a right to those lands are quietly to enjoy them, hunting, planting, and dwelling thereon so long as they please, without any molestation from the United States; but when those tribes, or any of them, shall be disposed to sell their lands, or any part of them, they are to be sold only to the United States; and untill such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same. And the said Indian tribes again acknowledge themselves to be under the protection of the said United States and no other power whatever.” The rights which were conferred upon the Indians by the 1795 Treaty in accordance with the above explanation in Article V of the treaty are considerably more than a right of temporary and permissive occupancy of land. The Indians were given the right to permanently as “long as they please” occupy the land without interference from the United States. The United States reserved to itself only the right to buy the land from the Indians, and the only restriction put upon the Indians’ use of the land was that they might not sell it to any but the United States and this restriction was one placed upon all Indian tribes with respect to the disposition of their lands. In addition, the United States undertook to protect the Indians in the permanent use of their lands against all citizens of the United States and against all other persons who might intrude upon the lands. The guarantees contained in Article V of the Treaty of Greenville were made in strict compliance with the instructions given to General Wayne, the Treaty Commissioner. He was told to impress upon the Indians the fact that the United States conceded to them fully the right and possession of the soil as long as they desired to occupy it and that when they chose to sell it they could do so, but only to the United States who would in the meantime protect the Indians against any and all impositions. Since, in general, the United States does not have an obligation to compensate a tribe for unrecognized Indian title land (Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314), an agreement to permit the Indians to occupy land permanently or until they were disposed to sell it to the United States seemed to the Commission, as it does to us, to be a clear indication of an intention on the part of the United States to recognize in the Indian treaty parties more than aboriginal use and occupancy title to the land in question. If we had before us only the Treaty of Greenville and if the Indian claimants were relying on that treaty alone, it would, of course, be necessary for them to prove what part of the land covered by Article IV of the treaty and relinquished to the Indians by the United States was owned by each of the claimants. General Wayne had found it impossible in 1795 to define the boundaries enclosing the various areas used and occupied by the signatory tribes. But those boundaries were established by subsequent treaties as described in the findings and decision of the Commission and as discussed earlier in this opinion. By the time the cession of October 6, 1818, was made, the boundaries of the land owned by the Miami Indians, including land owned by the Weas and the Delawares, had been established by a number of previous treaties. In those treaties and in the negotiations leading up to them, as well as in the negotiations for the Treaty of October 6, 1818, the right of the Miami Indians as the permanent and recognized owners of the lands ceded in the 1818 Treaty had been unmistakably confirmed by the United States. The Commission relies to a large extent on the decisions of this court involving land covered by the Treaty of Fort Laramie, September 17, 1851, 11 Stat. 749. In the case of the Indians of Fort Berthold Indian Reservation v. United States, 71 Ct.Cl. 308, the court stated that the important question for decision was whether the “reservation” claimed in the petition was fixed and set aside by treaty stipulations between the United States and the Indians and whether the treaty relied upon did in fact create the “reservation” claimed. Prior to 1851 but after the discovery of gold on the Pacific Coast, travel across the plains and through the country occupied by the Indians who later signed the Fort Laramie Treaty, was greatly increased with the result that the primary means of livelihood of the plains and mountain Indians, i. e., buffalo and game, was greatly diminished. The Indians became aroused and resisted the invasion of their lands by the white travelers. In addition, the mountains and plains Indians were continually fighting among themselves. In order to establish permanent peace and friendship among the hostile tribes, and between the tribes and the United States, to secure the permission of the tribes for the establishment of roads and military posts within their territories, to protect the Indians against the whites and the whites against the Indians, commissioners were appointed to negotiate with the plains and mountain Indians. In Article V of the Treaty of Fort Laramie the Indians agreed to recognize and acknowledge certain tracts of land included within set metes and bounds as the respective territories of the separate signatory tribes. The treaty contained no language of relinquishment or acknowledgment by the United States such as that contained in Articles IV and V of the Greenville Treaty involved in the instant appeal, but the court held in. the Fort Berthold case that while the language of the treaty was not in all respects the technical wording of recognition, it was sufficient, when considered in connection with the instrument as a whole and the purpose and intent of the parties as indicated by the instructions to the treaty commissioners, to clearly indicate that the territories of the signatory tribes were to be recognized in accordance with their claims, and that protection was assured to them by the Government within such limitations in consideration of the rights and privileges secured by the United States in other provisions of the treaty. Following the holding in the Fort Berthold case and without any extended discussion, the court reached the same conclusion with respect to whether or not the claimant Indians held the lands by recognized or unrecognized title in the ease of the Assiniboine Indian Tribe v. United States, 77 Ct.Cl. 347. The Assiniboine Tribe was a party to the Fort Laramie Treaty and the tribe held the land described therein in exactly the same way as did the Fort Berthold Indians. The Government’s attempt in the instant case to distinguish the Fort Berthold from the Assiniboine case in the light of the court’s use of the word “granted” in the Assiniboine ease is without merit since the nature of the land title of both tribes was governed by the same treaty. While neither the Fort Berthold case nor the Assiniboine case were passed on by the Supreme Court, the holdings in those cases were noted with approval in the decision of the Supreme Court in the case of Northwestern Band of Shoshone Indians v. United States, 324 U.S. 335, 349, 65 S.Ct. 690, 697, 89 L.Ed. 985. In the Northwestern Shoshone case the Supreme Court was of the opinion that nowhere in the treaties relied upon by the Northwestern Band was there any specific acknowledgment by the United States of the Indians’ right to permanently use and occupy any area of land, and the court concluded, from the circumstances leading up to and following the execution of the Box Elder Treaty, as well as the language of the treaty itself, that neither of the parties to the treaty had intended it to constitute a recognition or acknowledgment by the United States of the Indians’ right to permanently occupy the land in question. The Supreme Court then referred to the petitioner’s reliance upon the decisions of the Court of Claims in the Fort Berthold and Assiniboine cases, supra, and in Crow Nation v. United States, 81 Ct.Cl. 238, and noted that a different conclusion on the question of treaty recognition of title in the Northwestern Shoshone ease was not inconsistent with the holdings of the Court of Claims in the Fort Laramie cases be= cause different treaties were involved. The Supreme Court stated that the circumstances surrounding the execution of the Fort Laramie Treaty indicated “a purpose to recognize the Indian title to the lands described in the Fort Laramie treaty which may well have induced the Court of Claims to reach one conclusion in those cases and another in this.” The Supreme Court then went on to note that the instructions to the Fort Laramie Treaty Commissioners had directed them to establish for each tribe some fixed boundaries within which they would agree to reside and' not intrude upon the limits assigned to another tribe without permission, and that the United States had considered it highly important to lay off the country into geographical or national domains. In the instant case we are of the opinion that the language of the Treaty of Greenville was far more apt to express “recognition” than was the language of the Fort Laramie Treaty and that the circumstances surrounding the execution of the Greenville Treaty indicate a clear purpose on the part of the United States to recognize the right of the signatory tribes to permanently occupy the land relinquished by the United States in that treaty. It is somewhat difficult to determine the exact nature of the Government’s arguments with respect to the Commission’s holding on recognition, but one thing seems clear and that is that the concept which the Government urges with respect to what constitutes “recognized title” is unduly restrictive. The lands which Indians hold by recognized title may be lands formerly held by them under mere aboriginal use and occupancy title or may be lands which they never previously occupied and which the Government conveyed or granted to them. The land which an Indian tribe holds by recognized title may be called a “reservation” in the applicable treaty, agreement or statute, or it may not be called a reservation. The area may be a large tract of land sufficient to support a numerous population of Indians without much assistance from the sovereign, as in the case of the Fort Laramie tribes, or it may be a small tract on which the tribe can live only with considerable Government assistance. The size of the tract involved is not controlling on the question of recognition. At the time of the negotiations of the Treaty of Green-ville, the United States in 1795 had no immediate need for the admittedly large area which the Commission has found it recognized as being owned by the signatory tribes and which the United States agreed that those tribes should thenceforth occupy on a permanent basis. Since the United States then had no immediate need for the land in question, there was no reason to confine the Indians to small tracts which would have required the United States to undertake many obligations in the form of larger annuities and numerous services necessary to enable the Indians to exist on small tracts of land. By “recognition”, the courts have meant that Congress intended to acknowledge, or if one prefers, to grant, to Indian tribes rights in land which were in addition to the Indians’ traditional use and occupancy rights exercised only with the permission of the sovereign. Those additional rights may be sufficient to spell out fee simple title in the Indians if that is what Congress wished, or they may result in something less than fee simple title. The extent of those new- and additional rights and the accompanying obligations of the sovereign and the tribe will usually be determined by the Congressional enactment, the treaty, or the agreement, conferring them. Sometimes, as in the case of the Fort Laramie Treaty, it is necessary to look to the negotiations leading up the treaty and the reports of the treaty commissioners to accurately determine the precise nature and extent of the rights and obligations created by the treaty. In the instant case we are of the opinion that the Indian Claims Commission has correctly held that the Miamis were given the right to permanently occupy and use the land ceded by the Treaty of October 6, 1818, until that tribe should be disposed to sell that land to the United States; that the title of the claimant Indians in the land so ceded was what is understood as “recognized” title and that because of such recognition, the claimant Indians did not have to establish the extent of their exclusive occupancy of any of the land ceded to the United States in 1818; and that the Commission has accurately determined the amount and location of land in the ceded tract belonging to the claimant Indians. We turn next to a consideration of the issues raised by the cross-appeals from the Commission’s determination that the land ceded by the claimant tribes under the Treaty of October 6, 1818, was worth on that date 750 an acre. The Indian claimants contend in general that the Commission’s ultimate finding of value is not supported by the primary findings; that the primary findings numbered 6 through 31 are supported by substantial evidence contained in the whole record; that the remaining findings on value, numbers 32 through 44, are either merely recitations of evidentiary material and not findings, or, in some instances, are contradictory to findings previously made by the Commission and are not supported by substantial evidence. The United States urges that the Commission’s ultimate finding of 75(£ per acre as the value of the land in 1818 is not supported by the Commission’s primary findings; that some of the primary findings contain uncertainties and conflicts and that the ease should be remanded to the Commission for correction both as to primary findings and the ultimate finding of value. With respect to findings € through 31 which the Indian claimants contend are supported by substantial evidence, the Government contends that these findings are mere generalities and are not supported by substantial evidence. The Government says that findings 33 through 40 are supported by substantial evidence and that if the Commission had made certain additional findings from the record it would have reached a valuation as of October 6,1818, of only 20$5 per acre for the land ceded. Section 19 of the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C.A. § 70, provides that the final determination of the Commission in any case shall include the findings of fact upon which its conclusions are based, and a statement of its reasons for its findings and conclusions. Section 20(b) of the Act defines the scope of this court’s power to review final determinations of the Commission and provides in pertinent 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 the instant case we must determine whether certain primary findings are supported by substantial evidence, whether other findings are, in fact, findings or mere recitations of evidence, whether the ultimate finding or conclusion with respect to value is supported by the Commission’s primary findings of fact, and whether the' Commission has given adequate and valid reasons for its findings and conclusion on the issue of value. On the question whether or not the case should be remanded to the Commission for correction and modification of the findings both parties have cited this court’s decision in Snake or Piute Indians of Former Malheur Reservation in Or. v. United States, 112 F.Supp. 543, 125 Ct.Cl. 241. The Snake case is not precisely in point. In that case the court was faced with a related problem. We found that the evidentiary findings made by the Commission were accurate and were supported by substantial evidence but that the findings made did not adequately reflect the whole record and failed to present certain essential facts which were established by the record. Inasmuch as the court felt that the whole record, if made the subject of proper findings, did not support the ultimate finding made by the Commission, the case was remanded to the Commission for the making of additional primary findings. The case before us presents a situation where the primary findings are generally adequate to reflect the essential facts established by the record, but those findings do not support the Commission’s ultimate .finding on value. In the case of Penn Foundry & Manufacturing Co. v. United States, 75 F.Supp. 319, 110 Ct.Cl. 374 reversed, 337 U.S. 198, 69 S.Ct. 1009, 93 L.Ed. 1308, this court awarded judgment to a manufacturer for loss of anticipated profits under a contract for the manufacture of gun mounts for the Navy, the contract having been canceled by the Government a few days after it was awarded. The Supreme Court reversed this court’s decision on the ground that the primary findings made by the court did not show that the plaintiff manufacturer was ready and able to perform its contractual obligations; that such readiness and ability to perform were indispensable prerequisites to the plaintiff’s right to recover loss of anticipated profits and that because certain findings of fact conclusively established that the plaintiff was neither ready nor able to perform the contract, a finding of readiness and ability could not in fact have been made. In that case the court had made no finding at all as to that essential fact. In the instant case the Commission did make an ultimate finding on the issue of value, but both parties contend that the primary findings made by the Commission require an entirely different ultimate finding. Before we examine the Commission’s findings we will discuss certain general principles which are applicable in a determination of the value of Indian land at a time in the remote past. First we wish to observe that whether the land to be valued is held by the Indian claimants under recognized title or merely under so-called Indian title, or is held under fee simple title with all the usual rights of ownership, including that of alienation, the Supreme Court and this court have held that such land should be valued in the same way. In the case of United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213, the Court of Claims, in valuing land held by recognized title, had included in such valuation the worth of the timber and minerals in the area. On appeal the Government had urged that the Indians’ title being less than fee simple in that it merely included the right to use and occupy the land, the value of that land must be less than land held under fee simple title. The Supreme Court said: “For all practical purposes, the tribe owned the land. Grants of land subject to the Indian title by the United States, which had only the naked fee, would transfer no beneficial interest. Leavenworth, L. & G. R. Co. v. United States, 92 U.S. 733, 742-743, [23 L.Ed. 634]. Beecher v. Wetherby, 95 U.S. 517, 525 [24 L.Ed. 440], The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee.” 304 U.S. at page 116, 58 S.Ct. at page 767. The same issue on value was present in the case of United States v. Klamath and Moadoc Tribe of Indians, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 and the same holding was made in that case. In the case of Otoe and Missouria Tribe of Indians v. United States, 131 F.Supp. 265, 131 Ct.Cl. 593, certiorari denied 350 U.S. 848, 76 S.Ct. 82, 100 L.Ed. 755, this court held that both Indian title land to the extent that actual occupancy thereof was proved, and reservation or recognized title land, should have the same value as though it were held in fee simple rather than on the basis of its value as subsistence for primitive Indian occupants as suggested by the Government appraiser. In its petition for certiorari, the Government again urged this theory of valuation. In the case of Coeur d’Alene Tribe of Indians v. United States, 6 Ind.Cls.Comm. 1, 38, the Indian Claims Commission held that land held by Indian title (mere permissive use and occupancy title) had the same value as land held by recognized or reservation title or as land held by fee simple title, citing the Shoshone and Klamath eases, supra, as well as United States v. Paine Lumber Co., 206 U.S. 467, 27 S.Ct. 697, 699, 51 L.Ed. 1139. In the Paine Lumber case the Supreme Court, noting that usually Indian tribes were not permitted to alienate their lands, stated that “The restraint upon alienation must not be exaggerated. It does not of itself debase the right below a fee simple.” The problem of valuation may arise in at least three possible settings: (1) where there is neither an open market nor other evidence upon which to base an estimate of fair market value, in which event the courts have held that the Government’s minimum statutory price for public land may be considered to be the value of that land; (2) where there is an open market for the land in question so that the actual market value of the land is known or can be ascertained; (3) where there is no open market for the land in question but there is evidence of sales of comparable land in the same area at about the same time which, together with other evidence, justifies a conclusion as to the fair market value of the land being valued. A situation of the first type was present in New York Indians v. United States, 170 U.S. 1, 18 S.Ct. 531, 42 L.Ed. 927, and 170 U.S. 614, 18 S.Ct. 735, 42 L.Ed. 1165. The other two situations mentioned above are really two aspects of the same thing, i. e., the fair market value approach, one being actual fair market value and the other being an estimated or imputed fair market value. Fair market value was defined by the Indian Claims Commission in The Osage Nation of Indians v. United States, 3 Ind.Cl.Comm. 231, as follows: “Market price is the highest price estimated in terms of money which land will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all the uses and purposes to which it is best adapted and for which it is capable of being used.” If, as in The Osage case, there is evidence of private sales not controlled by the Government’s minimum statutory price for public lands, these sales should be taken into consideration in determining value. In addition, consideration should be given to evidence of sales of reserve sections; sales of land at public auction, bearing in mind the duration of the auction; the location and physical characteristics of the land; the type of settlers who purchased the land and their ability to pay for it; and the history and development, both political and economic, of the area in which the land is located. The evidence as a whole, taking all these factors into consideration, may show that the fair market value of the particular land involved is actually less than the Government’s statutory minimum price for public land. Such was the case in Rogue River Tribe of Indians v. United States, 1950, 89 F.Supp. 798, 116 Ct.Cl. 454, certiorari denied in 341 U.S. 902, 71 S.Ct. 610, 95 L.Ed. 1342. On the other hand, such evidence may show that the fair market value of the land in question is more than the statutory minimum price for public lands as was the case in The Osage Nation of Indians v. United States, supra. In the instant case, as in most cases involving Indian lands, there was no actual free open market in the precise area ceded to the United States in 1818, because the Indians had been unable, prior to the cession, to sell their land to anyone but the United States, and the United States bought the whole tract in 1818. As a result of the Trade and Intercourse Acts; 1 Stat. 137, 138 and 1 Stat. 329, 330, and under the provisions of the Treaty of Greenville of 1795, 7 Stat. 49, the Indian tribes of the Northwest Territory could only sell their land to the United States or with the approval of the United States. Prior to 1818 the Miami Indians had requested the right to sell their lands directly to settlers, but the United States had refused to grant them such permission (finding 29). In the case of the New York Indians v. United States, supra, there was no open market for the land in question, nor was there evidence, upon which a fair market value could be estimated. Accordingly, the Supreme Court directed that