Full opinion text
LITTLETON, Judge. This is an appeal by The Osage Nation •of Indians from a final determination of the Indian Claims Commission, in which ■a majority of the Commission determined that the appellant was not entitled to any relief. Appellant’s petition was filed with the Commission under and pursuant to the Act of August 13, 1946, 60 Stat. 1049, 25 U.S.C.A. § 70 et seq., hereinafter referred to as the Indian Claims Commission Act. Appellant’s claim, in essence, is for additional compensation, to be measured by the fair market value on September 29, 1865, of a tract of land approximately 30 miles wide and 50 miles long, consisting of ■865,930.31 acres, in southeastern Kansas, which land was ceded to the United States by Article 1 of the Treaty of September 29, 1865, between the Osage Nation of Indians and the United States, 14 Stat. 687. Article 1 provided as follows: “The tribe of the Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the United States the lands contained within the following boundaries, that is to say: beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles to the northeast corner; thence west with the northern line thirty miles; thence south fifty miles, to the southern boundary of said reservation; and thence east with said southern boundary to the place of beginning: Provided, That the western boundary of said land herein ceded shall not extend further westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris river crosses the southern boundary of the State of Kansas. And, in consideration of the grant and sale to them of the above-described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time direct. Said lands shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws [including any act granting lands to the state of Kansas in aid of the .construction of a railroad through said lands], but no pre-emption claim or homestead settlement shall be recognized: and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the ‘civilization fund/ to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States.” In its petition filed with the Commission, appellant asserted its claim under Section 2 of the Indian Claims Commission Act, which reads, in part, as follows: “The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (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 entitled to sue in a court of the United States if the United States was subject to suit; (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; (4) 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; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. * * * ” Although, in its petition, briefs and arguments before the Commission, appellant urged that its claim for relief was cognizable under all five clauses of Section 2, in its appeal to this court appellant relies only on portions of clause (3) and on clause (5). Appellant contends that the record before the Commission establishes conclusively the following three ultimate facts, any one of which would entitle appellant to the relief requested: (1) that there was a unilateral mistake of law or fact on the part of the Osage such as would justify the revision of the treaty under clause (3) of Section 2, in that the provision in Article 1 of the treaty relative to the creation of a civilization fund for Indian tribes other than the Osage but at the expense of the Osage, was not fully explained to, nor understood by, the Osage, but that, on the contrary, the cession of surplus lands in Article 1 was made with the understanding and belief on the part of the Osage that the proceeds from the sale by the Government of the ceded land, over and above the $300,000 advanced, plus the expenses of survey and sale, were te> accrue to the benefit of the Osage Indians residing in the United States; (2) that in any event, the consideration actually passing to the Osage under Article 1 of the treaty, amounting to $300,000, or approximately 34 cents per acre, was unconscionable inasmuch as the land was worth at least what the Government received for it, that is, $1.25 per acre; (3) that the course of conduct pursued by defendant’s agents in making the treaty and procuring the cession in Article 1 did not meet the standards of fair and honorable dealings within the meaning of clause (5) of Section 2. The Commission based its denial of appellant’s claims under clause (3) on two ultimate findings of fact: that the value of the land in 1865 did not exceed the sum of $300,000 paid, and that the terms of the treaty of September 29, 1865, particularly with respect to' the civilization fund provision of Article 1, were fully explained to and understood by the Osage. Upon these ultimate findings rests the Commission’s disposition of the claim. Upon these or substituted conclusions upon the same issues must rest this court’s decision. At the outset, therefore, it is necessary that we determine the extent of the authority of this court to review and to revise the findings of fact of the Commission before proceeding to analyze those findings in the light of the record, and to determine whether they should be modified to accord with what we perceive to be the facts as established by the record. As stated in National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739, “When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized.” Section 20 of the Indian Claims Commission Act of August 13, 1946, provides in part as follows: • “(b) * * * At any time within three months from the date of the filing of the determination of the Commission with the clerk either party may appeal from the determination of the Commission to the Court of Claims, which Court shall have exclusive jurisdiction to affirm, modify, or set aside such final determination. On said appeal the Court shall determine whether the findings of fact of the Commission are supported by substantial evidence, in which event they shall be conclusive, and also whether the conclusions of law, including any conclusions respecting ‘fair and honorable dealings/ where applicable, stated by the Commission as a basis for its final determination, are valid and supported by the Commission’s findings of fact. In making the foregoing determinations, the Court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error. The Court may at any time remand the cause to the Commission for such further proceedings as it may direct, not inconsistent with the foregoing provisions of this section. * * * “(c) Determinations of questions of law by the Court of Claims under this section shall be subject to review by the Supreme Court of the United States in the manner prescribed by section 288 of this title.” After a hearing before the Commission, as provided for in the Act, the Commission made its final determination including findings of fact and conclusions of law, all adverse to appellants. Thereafter, pursuant to Sec. 20(b), quoted above, appellant appealed to this court from such adverse final determination. This appeal raises the questions, (1) whether, on the whole record, the Commission’s findings of fact, hereinabove, referred to, are supported by substantial evidence, and (2) whether the Commission’s conclusions of law, including its conclusions respecting fair and honorable dealings, are valid and supported by the findings of fact. Appellee has not provided us with much guidance as to what it considers to be the proper scope of our review of the Commission’s findings of fact. It has merely pointed out that similar provisions as to judicial review of findings of facts on appeal appear in the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq., and various other acts governing the duties and powers of administrative and quasi-judicial tribunals. It mentions two Supreme Court decisions, one dealing with the scope of judicial review of facts under the National Labor Relations Act, and the other under, the Federal Trade Commission Act, and the excerpts quoted from each decision in the Government brief stresses the proposition that courts have repeatedly held themselves precluded from weighing the evidence in reviewing the Board’s or the Commission’s orders, and that if the orders are supported by findings based on substantial evidence, the courts are not free to set them aside, even though the administrative tribunal could have drawn different inferences from the record before it. The Government indicates that such decisions represent its views on the scope of our review of the Commission’s findings of fact, and should serve as a guide to this court. The exact scope of a court’s review of the factual determinations or orders of a quasi-judicial or administrative tribunal and the application of the so-called substantial evidence rule, are by no means simple matters. The enabling legislation of such tribunals as the National Labor Relations Board, the Interstate Commerce Commission, etc., has uniformly revealed a Congressional intent to accord as much finality as possible to their determinations, orders and decisions, in order to insure an orderly and efficient administration of the various laws involved. Although, as conceded by the Government, the Indian Claims Commission is not very similar to the above mentioned Board and Commission, this same congressional intent, as we shall show more fully hereinafter, was equally present in the mind of Congress in framing the Indian Claims Commission Act, and we should not whittle away that very proper purpose, nor in any way undermine the effectiveness of the Commission by seeming to treat each appeal as a trial de novo, or by introducing an unduly broad concept of what constitutes substantial evidence. We are fully aware that there are limits to our review upon the record of the findings of fact made by the Commission, and we have carefully considered where those limits lie. In so doing we have studied the arguments and authorities referred to in the briefs of the parties, the opinions of the text writers on administrative law, dealing with the problem generally, and the legislative history of the Indian Claims Commission with respect to Section 20(b). There seems to be little unanimity in the court decisions as to the meaning of the expression “substantial evidence.” It has meant everything from “warrant in the record,” “rational basis,” “not arbitrary,” “some evidence,” “reasonable,” to what is commonly understood as being the preponderance of the evidence. We are convinced that the course Congress intended us to follow lies somewhere between those extremes. The various theories as to the scope of review, ranging from very narrow to very broad, announced, by the courts, has by no means been a thoughtless or haphazard process, but rather, we think, an honest and considered attempt to give effect to Congressional intent as manifested in the particular legislation involved, and to preserve the dignity and effectiveness of the administrative tribunals whose decisions were under scrutiny. While, for a time, there seems to have been a trend in the courts to look only to see whether the finding of fact in question had some evidence to support it and if so, to sustain it even though the record contained masses of uncontradicted evidence to the contrary, those decisions were largely confined to certain specialized fields where the court, reviewing the findings of an expert body vested with discretionary and sometimes rate-making functions, was reluctant to substitute its relatively uninformed judgment for that of a trusted and experienced body of experts. The problem of when to substitute judicial for administrative judgment is often a difficult one. Courts have refused to substitute their judgment for that of the administrative tribunals involved where the question concerned matters on which the courts felt that the agencies had by statute been vested with authority to exercise discretion or to establish policy, sometimes coupled with rule-making power. Securities and Exchange Commission v. Central-Illinois Securities Corp., 338 U.S. 96, 69 S.Ct. 1377, 93 L.Ed. 1836. In such cases, even though the facts might be undisputed and the court might feel more favorably disposed to a different conclusion than that reached by the administrative tribunal, the courts have refused to reverse where the agency acted within its statutory authority. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260; Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. These cases also involved the so-called expert agencies such as the Interstate Commerce Commission, the Securities & Exchange Commission, the Federal Communications Commission, etc., and the test applied seems to have been reasonableness rather than rightness. In National. Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, the Court held that the question whether or not a person was an “employee” within the meaning of the National Labor Relations Act was a matter confined to agency discretion. In Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 67 S.Ct. 245, 250, 91. L.Ed. 136, the Court held that the question whether or not there was a labor dispute in active progress was a matter confined to agency discretion and because there was “warrant in the record” and “a ‘reasonable basis in law’ ” to support the agency determination, the Court would not substitute its judgment regardless of its inclination to the contrary on the facts. However, in the same case the Court did not hesitate to substitute its judgment on the question of whether the labor dispute was at the place of former employment, apparently feeling that there was no agency discretion involved in the determination of such a question, nor any expertness required in reaching such a determination. Courts have endeavored to distinguish carefully between questions which are properly the subject of expert and technical judgment in the hands of an experienced and informed agency, and questions of a more general nature concerning which the court is as competent an arbiter as the administrative body. In the former case, the courts have applied a very limited scope of review, and in the latter a much broader one. National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F. 2d 885. Where the question examined involves the common law, civil law, ethical questions, legislative history, a priori reasoning, the meaning of nontechnical words and concepts and the tradition and philosophy of law and government, the court rather than the agency is the expert body. In determining whether a finding is supported by substantial evidence, courts are usually directed by the statutes and by the Administrative Procedures Act to examine the whole record. In Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 217, 83 L.Ed. 126, the Court said of substantial evidence: “[It] is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Mr. Justice Black’s dissent in National Labor Relations Board v. Columbian Enameling & Stamping Co., 305 U.S. 292, 59 S.Ct. 501, 505, 83 L.Ed. 660, in which the majority held that the evidence of a refusal to bargain was too insubstantial to form a basis from which the fact in issue could reasonably be inferred, makes some general observations which are significant in any approach to this problem. Speaking of such agencies as the Labor Board, the Interstate Commerce Commission, the Securities and Exchange Commission and the like, Mr. Justice Black said: “ * * * were all created to deal with problems of regulation of ever increasing complexity in the economic fields of trade, finance and industrial conflicts. Congress thus sought to utilize procedures more expeditious and administered by more specialized and experienced experts than courts had been able to afford. The decision here tends to nullify this Congressional effort.” In the Report of the Attorney General’s Committee on Administrative Procedure, the additional views of Messrs. McFarland, Stason, and Vanderbilt, suggested that courts had too' frequently interpreted “substantial evidence” to mean any evidence to support the conclusion of fact regardless of how heavily the countervailing evidence might preponderate. The report goes on to point out that in any one agency some fact determinations may involve highly technical matters requiring special experience and training while others will involve technology to little or no extent: “Some impinge heavily upon private rights; others do so lightly, if at all. Some are intended to be merely preliminary to the exercise of validly conferred administrative discretion; others involve no discretionary element but are quite objective. Some are rendered by long-established, well-tried tribunals in whom all persons have confidence; some come from new and hurriedly organized agencies. Yet, for the most part all these different types of fact determinations are cast into a single mold, with a single general formula for judicial review. * * * ” This last statement is, of course, literally true, since many of the statutes employ the same provision relative to the conclusiveness of the tribunal’s determinations of fact if based on substantial evidence. However, in recent cases the courts have displayed a greater amount of flexibility in applying this general formula, depending upon the question involved, the technical or nontechnical aspects of the issue, the provisions of the particular statute, the make-up and length of existence of the administrative board, and many other pertinent considerations. Just how flexible the application of the general formula should be, is itself a difficult problem. In its decision of January 15, 1951, in the combined cases, Niagara Hudson Power Corp. v. Leventritt (No. 211), and Securities and Exchange Commission v. Leventritt (No. 212), the Supreme Court reversed, 340 U.S. 336, 71 S.Ct. 341, 346, the Court of Appeals for the Second Circuit, 179 F.2d 615, which had held that the finding of the Securities and Exchange Commission concerning the value of warrants was not supported by any evidence. The Court stated, in part: “ * * * The informed judgment of the Commission, rather than that of the market, has been designated by the Act as the appropriate guide to fairness and equity within the meaning of the Act. * * “In the absence of abuse of its discretion, the Commission’s approval of a plan is as lawful and binding when it recognizes a value of zero for a security as when it selects any other figure. The cash allowance it gives to one security it must take from another. In each case, it must determine the fairness and equity of the plan to all who are affected. We conclude, therefore, that in the present instance the Act does not require proof that the warrants are wholly worthless and without all market value in order to sustain the Commission’s judgment that the plan is fair and equitable when it denies participation to them. It is enough that the Commission, within its discretion, has given the warrants careful consideration and that under all the circumstances, including their market value, has found the plan to be fair and equitable within the meaning of § 11 of the Act [15 U.S.C.A. § 79k].” In Universal Camera Corp. v. National Labor Relations Board (No. 40), 340 U.S. 474, 71 S.Ct. 456, 459, the Supreme Court considered the question whether the judicial review provisions contained in the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and in the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., in any way altered the scope of judicial review. The Court noted that the Court of Appeals for the Second Circuit and the Courts of Appeals for five other circuits all agreed that no material change had been made in the reviewing powers, whereas the Court of Appeals for the Sixth Circuit in Pittsburgh S. S. Co. v. National Labor Relations Board, 180 F.2d 731, held that the scope of review had been considerably altered. In the Universal Camera case, the majority opinion of the Court carefully reviewed and clarified the problem now before us. At the outset oí the discussion of this matter it was stated: “Want of certainty in judicial review of Labor Board decisions partly reflects the intractability of any formula to furnish definiteness of content for all the impalpable factors involved in judicial review. * *” The Court then proceeds to review the history of the exercise of judicial reviewing power under the substantial evidence rule and points out that in many cases “* * * Even though the whole record may have been canvassed in order to determine whether the evidentiary foundation of a determination by the Board was ‘substantial/ the phrasing of this Court’s process of review readily lent itself to the notion that it was enough that the evidence supporting the Board’s result was ‘substantial’ when considered by itself. It is fair to say that by imperceptible steps regard for the fact-finding function of the Board led to the assumption that the requirements of the Wagner Act were met when the reviewing court could find in the record evidence which, when viewed in isolation, substantiated the Board’s findings. * * * ” The Court further pointed out that this problem was of great concern to the Attorney General’s Committee on Administrative Procedure, and quoted from page 92 of the Final Report, referring to proposals to enlarge the scope of review to permit “inquiry [as to] whether the findings are supported by the weight of the evidence”. The Final Report contained the following: “ * * * Assuming that such a change may be desirable with respect to special administrative determinations, there is serious objection to its adoption for general application. “In the first place there is the question of how much change, -if any, the amendment would produce. The respect that courts have for the judgments of specialized tribunals which have carefully considered the problems and the evidence cannot be legislated away. The line between ‘substantial evidence’ and ‘weight of evidence’ is not easily drawn-particularly when the court is confined to a written record, has a limited amount of time, and has no opportunity further to question witnesses on testimony which seems hazy or leave some lingering doubts unanswered. ‘Substantial evidence’ may well be equivalent to the ‘weight of evidence’ when a tribunal in which one has confidence and which had greater opportunities for accurate determination has already so decided. “In the second place the wisdom of a general change to review of the ‘weight of evidence’ is questionable. If the change would require the courts to determine independently which way the evidence preponderates, administrative tribunals would be turned into little more than media for transmission of the evidence to the courts. It would destroy the values of adjudication of fact by experts or specialists in the field involved. It would divide the responsibility for administrative adjudications.” The Court then noted that the three dissenting members of the Committee in-their minority report recommended that Congress enact legislation requiring judicial review to be upon “the whole record?’ and that to that extent, at least, their report was adopted. As pointed out by-Mr. Justice Frankfurter, speaking for the majority, it was in the same “mood” that amendments of the Wagner Act contained! the same language: “It is fair to say that in all this Congress expressed a mood. And it expressed' its mood not merely by oratory but by legislation. As legislation that mood must be respected, even though it can only serve as a standard for judgment and not as a body of rigid rules assuring sameness of application. Enforcement of such broad standards implies subtlety of mind and solidity of judgment. But it is not for us to question that Congress may assume such qualities in the federal judiciary. ****** “It would be mischievous word-playing to find that the scope of review under the Taft-Hartley Act is any different from th'a't under the Administrative Procedure Act. * * * * * * “Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitely precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the sigificance of the requirement in both statutes that courts consider the whole record.” The Supreme Court then cautions that it should not be thought that courts must not give great respect to- the specialized or technical findings of an informed and expert body, nor even that a court should displace an administrative tribunal’s choice in a matter not requiring expertise even though the court might justifiably have arrived at a different result if the matter had -been before it de novo. * * * Congress has merely made it -clear that a reviewing court is not barred ■from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” The Court thus concluded that the judicial review provisions of the Administrative Procedure Act and similar language in the Taft-Hartley Act require that substantiality be determined in the light of all that the record relevantly presents. Further, the Supreme Court held that although no precise formula for the scope of judicial review was provided, both acts, in their actual wording and in the light of their legislative history, clearly place upon the courts the responsibility for the reasonableness and fairness of administrative tribunals’ decisions, at least to a greater extent than some courts have in the past shown. The order of enforcement of the Board’s order entered by the Court of Appeals for the Second Circuit was reversed and the cause remanded. On the same day in the case of National Labor Relations Board v. Pittsburgh Steamship Co. (No. 42), a second decision of the Sixth Circuit, 180 F.2d 731, refusing enforcement of a Board order, was affirmed 340 U.S. 498, 71 S.Ct. 453, 456. In this case the Court said: “ * * * The court painstakingly reviewed the record and unanimously concluded that the inferences on which the Board’s findings were based were so overborne by evidence calling for contrary inferences that the findings of the Board could not, on the consideration of the whole record, be deemed ‘substantial.’ ” We now turn to a consideration of what Congress intended to be the scope of our review of the findings of fact of the Indian Claims Commission. The language used in Section 20(b) is similar to that of the language in the Administrative Procedure Act and that fact was noted specifically in the Conference Report (Cong.Rec. 7-27— 46, p. 10454). The latter act had been recently enacted, however, and there had been no court decisions interpreting that particular portion of it. It is interesting to note that the Indian Claims Commission Act as originally introduced had no provision for a review of the Commission’s findings of facts, but only of its conclusions of law. The original hill also provided, in Section 22(a), that the Commission’s report of a final determination favorable to the claimant should have the effect of a final judgment and be paid in the same manner as are judgments of the Court of Claims. The Senate objected to this provision and passed an amendment which provided that the amount found due by the Commission should, upon appropriation therefor by Congress, be paid in such manner as Congress should provide. The Department of Justice, however, felt that the awards of the Commission should have no such finality and proposed that the Commission’s determinations should come hack to Congress for a thorough review on the facts and for final action. Ultimately, the Department of Justice agreed that there should be a review of the Commission’s findings of fact by the Court of Claims and also agreed to the finality of the Commission’s determinations which were so subject to review. The Conference Report of July 27, 1946, in commenting upon these amendments, states in part: “ * * * In order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed, have the same finality as judgments of the Court of Claims, section 22(a) was rewritten to provide expressly that future Congresses may appropriate such sums as may be necessary to pay the final awards of the Commission. At the same time, in deference to the position taken by the Department of Justice that decisions of the Commission should be reviewable on the facts as well as on the law by the Court of Claims, appropriate amendments were made in section 20(b), 21 and 22, which apply to the Commission the forms of review embodied in the recently enacted Administrative Procedure Act. Under these provisions decisions of the Commission may be reversed (a) if the Court of Claims determines that the findings of fact are not supported by substantial evidence, or (b) if the Court of Claims finds an error in the law applied by the Commission. Under the latter heading the Court of Claims is empowered to reverse a decision of the Commission based upon the standard of ‘fair and honorable dealings,’ inasmuch as the interpretation of such a standard, written into the law of the land by this act, becomes an issue of law. The Court of Claims is likewise empowered to determine whether the findings of fact support the conclusion of the Commission. With these extensive review provisions the Department of Justice agree to withdraw objections earlier raised to the provision áuthorizing appropriation in payment of awards made by the Commission. (Rept.No.2693, 79th Cong., 2d sess., House of Representatives, Statement of the Managers on the Part of the House, p. 9; Cong. Rec., House, July 27, 1946, p. 10454.)” It thus appears that it was at the instance of the Department of Justice that this court was ultimately directed to review judicially the findings of fact of the Commission, and the forms of review applied to the Commission’s findings were those embodied in the Administrative Procedure Act. In general the jurisdiction of the Indian Claims Commission does not embrace ■ matters of a technical or highly specialized character. The Act sets forth no particular qualifications for the Commissioner except that at least two be attorneys and that not more than two be of the same political party. There was some discussion during the hearings of the advisability of providing that one member be an American Indian, but no such provision was made. The Act contains no language delegating to the Commission authority to perform any specified legislative function, when in the judgment of the Commission such action should be necessary to carry out the policy of Congress, so as to preclude a court’s reviewing the Commission’s judgment as to the existence of the facts calling for that action. The Commission is vested with no rate making or regulatory functions. Generally, and in this case in particular, the issues to be decided by the Commission involve ordinary matters — both legal and factual — concerning which this court is as expert as the Commission, that is, the market value of land, the meaning of language in a treaty, whether a certain course of dealings between the agents of the United States and the Indians amount to fair and honorable dealings, whether from the circumstances surrounding the treaty negotiations the existence of unilateral mistake concerning one provision can be fairly inferred. Inasmuch as the evidence before the Commission in this case was largely documentary, the opportunity of this court to evaluate such evidence is equal to that of the Commission. This is not a case where the commission was faced with the necessity of weighing or evaluating conflicting evidence in order to make its findings of fact. If it were, our scope of review and power to modify such findings would be more circumscribed. Pollock-Stockton Shipbuilding Co. v. Brown, 7 Cir., 185 F.2d 37. For the most part the evidence in the instant case is documentary and is not conflicting and the problem presented is one of carefully examining a vast amount of material and from it drawing the soundest inferences. Section 13(b) of the Act provides for the establishment of an Investigation Division to investigate all claims referred to it by the Commission, for the purpose of discovering the facts and submitting any evidence developed through its search to the Commission and the parties. From the papers contained in the record on appeal, it appears that no such investigation was made or, if it was, that the material developed was not considered by the Commission in reaching its decision since the Commission denied the request of appellants to make the report of the Division a part of the record on appeal. Therefore, we presume that the record before us is the entire record on which the Commission based its determination. The primary facts contained in the record in this case were for the most part undisputed. Those facts were contained in depositions taken from individuals many years prior to the hearing, in official letters and documents of the Department of the Interior and the Indian Office, in Congressional documents, drafts of treaties from the files of the Indian Office, Acts of Congress in the form of statutes and resolutions, reports of Congressional committees, and the record of this court in the previous Osage case, (Osage Tribe of Indians v. United States), 66 Ct.Cl. 64. The facts in this record were not elicited from oral testimony of witnesses whom the Commission had an opportunity to hear and observe. Inasmuch as the parties have joined issue upon the question oí whether or not the Commission’s ultimate findings were based upon substantial evidence, and it appearing that this court may properly review such findings and that upon such review the disposition of this case may largely depend, we proceed to. a review of the facts as found by the Commission. In affirming, modifying or reversing the findings of the Commission, we shall be guided by the criteria furnished by the Supreme Court in the Universal Camera case, supra. The primary facts found by the Commission in findings 1 through 7, and upon which it based its two ultimate findings, will be summarized. Early in 1862 the Osage Nation and the United States commenced treaty negotiations looking toward the acquisition by the United States of portions of land in southeastern Kansas which had long been occupied by the Osage Nation. On August 29, 1863, a treaty was concluded which contained, among others, certain provisions for the cession to the United States of two tracts of land. At this point, the Commission quotes in full Article 1, as it appeared in this early draft of the treaty, providing for the sale to the United States of a tract of land in southeastern Kansas approximately 30 by 50 miles in size, for an outright price of $300,000, which sum was to be placed to the credit of the Osage Nation in the treasury of the United States and interest thereon to be paid to the Osage at the rate of five percent per annum. Article 2, also quoted in full, provided that a larger tract should be ceded to the United States in trust for the Osage and be sold for their benefit by the Secretary of the Interior under such rules and regulations as he might prescribe, the proceeds, less expenses incident to the execution of the trust, to be placed in the treasury of the United States to the credit of the Osage and interest thereon at the rate of five percent per annum to be expended annually for certain specific purposes. Article 16, quoted in full, provided: “Should the Senate reject or amend any of the above articles, such rejection or amendment shall not affect the other provisions of this Treaty but the same shall go into effect when ratified by the Senate and approved by the President.” The Commission’s findings then state that the treaty was amended in several respects by the Senate and also- at the request of the Osage, but that, in 1865, notwithstanding the provisions of Article 16, the then Acting Commissioner of Indian Affairs considered the changes in the treaty to be of such a character as to make the treaty “unfit for publication” and accordingly, with the approval of the Secretary of the Interior, he prepared another treaty embodying all the changes. This new draft of the 1863 treaty, “with slight amendments,” was submitted to the representatives of the Great and Little Osage tribes of Indians at Fort Smith, Arkansas, in September 1865. The Commission found that this treaty was interpreted and explained to the representatives of the Osage at Fort Smith by an interpreter and that, after some deletions and interlineations, it was signed by the representatives of the United States and the representatives of the Little (Southern) Osage shortly before September 29, 1865; that the treaty was later submitted to the Great Osage (who had not been authorized to execute the treaty at Fort Smith) at Canville Trading Post in Kansas, where the terms were “fully explained to them by an interpreter,” and that it was executed by the Great Osage on September 29, 1865; that the following statement appears before the signatures of the chiefs— “We the undersigned, chiefs and headmen of the Clermont and Black Dog Band of the Great Osage Nation, in council at Fort Smith, Ark., have had the foregoing treaty read and explained in full by our interpreter, L. P. Chouteau, and fully approve the provisions of said treaty made by our brothers the Osages, and by this signing make it our act and deed.” 14 Stat. 691. The findings then point out that certain of the chiefs who signed the 1863 treaty also signed the 1865 treaty. The findings then set forth in full Articles 1, 2, and 17, of the treaty signed on September 29, 1865, and finally proclaimed, after certain further amendments, on January 21, 1867. Another attestation clause is quoted with reference to certain amendments, dated September 21, 1866, and the Commission notes that the signatories thereto were the same chiefs and headmen who signed the original treaty. In finding 6, the Commission states that the tract ceded to- the United States by Article 1 of the treaty of 1865 comprised some 865,930.31 acres of land and that this land was sold by the Government “pursuant to the provisions of said article one”; that the sales began in 1868 and continued until 1901. The remainder of finding 6 is significant inasmuch as it is the basis for the Commission’s conclusion that the market value of the land ceded in Article 1 was no more .than 34 cents per acre in 1865. We shall discuss it in detail later in this opinion. In general, it finds that by the end of 1875 less than 50 percent of the land in the Article 1 tract had been sold and that no land was sold during 1876. It then points out that on August 11, 1876, 19 Stat. 127, Congress passed an act providing for the sale of these lands at $1.25 per acre on a four year installment basis and that following the passage of this act 454,652.48 acres were sold between 1877 and 1880; that the cash proceeds from sales after 1880 indicate that the remaining acreage was sold during the next twenty years. In the latter part of finding 6, the Commission finds that gross proceeds from the Government sales of the land amounted to $1,101,303.78, “out of which the Government retained the purchase price, $300,-.000.00,” plus $24,373.20 also retained to cover the cost of survey, and that the balance of $776,931.58 was placed to the credit of the Civilization Fund; that $3,177.22 was paid out of this fund to cover the expenses of sale of Osage land, leaving $773,754.34 in the fund; that the entire fund was used for the benefit of Indians other than Osage, except for $189.55 which was spent for the Osage and $248.78 which was returned to the United States Treasury. In Finding 7, the Commission found that the $300,000 specified in Article 1, was set up in the Treasury Department on about February 13, 1883, as a fund to the credit of the Osage; that interest on this fund of $15,000 annnually has been paid since 1867 and has aggregated more than $1,200,000. Claim of Unilateral Mistake Under Section 2 of the Indian Claims Commission Act, “unilateral mistake” is a ground for the reformation of a treaty. If unilateral mistake is involved here, it is that the Osage, because of their disadvantageous position, complete ignorance of the English language and of the white man’s customs, inexpert interpreters and lack of the necessary words in their very limited language to convey the true significance of the language used and the legal concepts involved, did not understand the effect of the treaty they accepted. The fact of a person’s understanding or lack of understanding of a matter, is ordinarily shown judicially by his expressions and actions at the time the matter took place. In the instant case no record was kept of the proceedings either at Fort Smith or at Canville Trading Post, where such expressions or actions might have been noted. The Commission had no opportunity to hear and observe witnesses who had been present at such proceedings and, in this connection, had to depend on written depositions of persons who were not present during the negotiations, either because they were not yet born or were too young at the time, and whose impressions were at best second or third hand. For whatever it may be worth, such persons deposed uniformly that the Osage had not understood the Civilization Fund provision. Aside from these depositions, to which the Commission apparently attributed no weight, the record consists of the various versions of the treaty from 1863 to 1867 when it was proclaimed, letters and documents from the files of the Department of the Interior and the Indian Office, and •certain undisputed facts concerning the history of the times and the nature of the parties involved. We do not believe that the record before the Commission and now before us, justifies the fact inferentially found by the Commission that the civilization fund provision was fully explained to and understood by the Osage Tribes. In its opinion, on the question of unilateral mistake with respect to the meaning of the civilization fund provision in Article 1, the Commission concludes that “the record discloses no deception, over-reaching or other perverse conduct on the part of the representatives of the Government, either in the preliminary discussions or in the actual consummation of the treaty.” The Commission concedes that the Osage were full-blooded, blanket Indians, few of whom could read or write, that they had little knowledge of English, that they were destitute and very anxious to make a treaty in order to secure funds. However, the Commission feels that because the unproclaimed treaty of 1863 provided in Article 1 for an outright cession of this land for $300,000, the Osage must have understood that the revised Article 1 in the treaty submitted to them in 1865 also provided for an outright cession. The Commission reasons that the civilization fund provision was actually of no particular interest to these Indians or to the Government, since the land was being sold outright for a fixed sum and it was no concern of the Indians how the proceeds from the sale of the lands were to be disposed of as long as they got the $300,000. The Commission states that the record does not show how much time was spent on treaty negotiations at Fort Smith, but that three hours were consumed in negotiations a few days later at Canville. Admitting that three hours may be a short time to make such a provision clear to Indians who spoke no English and had no words in their vocabulary to express the words “civilization fund,” “other Indians,” etc.; that the Great Osage were not authorized to sign the treaty at Fort Smith, and that no record of the negotiations there are in existence, the Commission nevertheless states “ * * the preliminary negotiations and terms of the treaty were agreed upon at Fort Smith, at which place the Great Osage were represented, and, for ought that appears to be the contrary, the Great Osage representatives took part in the parley and understood the terms of the treaty.” The Commission appears to rely heavily on the previous negotiations relating to the 1863 treaty and its amendments, as a basis for its conclusion that the Osage never intended to do other than sell outright the 30 by 50 mile tract for $300,000 and that they either fully understood the civilization fund provision inserted in the 1865 draft, or were not interested in such a provision. In commenting on the decision of this court in 66 Ct.Cl. 64, involving the same claim, wherein the court found and concluded that the Osage did not understand the meaning of the civiliza-tion fund provision, but rather believed that the expression “Indians in the United States” referred to the Osage Indians in the United States, the Commission states that the evidence relating to the 1863 treaty negotiations was never brought to the court’s attention and that such facts would have had a direct bearing upon the statements made by the court with respect to mistake, although not upon its determination of the jurisdictional question, that is, that the court could not revise the treaty as written. It is true that certain documents, such as the 1863 treaty itself, the Senate amendments reported in the Senate Executive Documents, letters from the official files of the Department of the Interior, were not introduced in evidence as exhibits, as they were in the present case. However, all of those documents, letters, and the 1863 treaty and its amendments, were quoted in full and were discussed in the briefs of the parties and to that extent were before the court for its consideration. Much of this material, once called to the court’s attention, was material of which the court could take judicial notice, and we must presume that the court considered such matters in concluding that the Osage did not understand the terms of the civilization fund provision, regardless of the fact that no findings were made relative to such documents and the material was not referred to in the court’s opinion. As recognized by the Commission, this material could not have affected the court’s final determination which was that it did not have jurisdiction under the special act of Congress to revise the treaty for unilateral mistake. Actually, the facts relative to mistake presented to the Indian Claims Commission in the form of documentary evidence, and the facts before this Court in the earlier Osage case, are in most respects identical. The court’s conclusion in the earlier case that there had been a mistake, was ineffective on the matter of relief, since the court had no power at that time to revise the treaty for mistake. Under the Indian Claims Commission Act, however, a treaty may be revised for unilateral mistake, and we shall therefore review briefly all the facts revealed by the record in the instant case and bearing on that matter. In 1862 the Osage Indians were destitute. Their annuities from the Government under earlier treaties had ceased. The growth of white settlements in the immediate vicinity of their lands, particularly in the southeastern part of Kansas, and the turbulent conditions in that area resulting from the Civil War, had driven off the wild game on which the Osage depended largely for a livelihood. While the Osage were not a particularly warlike or hostile tribe, they were at best semi-civilized and completely unlettered. They were land-poor and were most desirous of disposing of some of this asset for funds with which to relieve their great distress. The State of Kansas and the United States Government were equally eager to have Indian title to land in Kansas extinguished and to have the Indians moved elsewhere, particularly in the case of southeastern Kansas where the railroad companies and the settlers were demanding an opportunity to obtain the land. In the early negotiations in 1862, the Osage had at first objected to ceding their lands in trust for the reason that by such a procedure they would receive no money until the lands were surveyed and sold. Their need was immediate and they preferred to make an outright sale of some of their land at least. The treaty finally agreed upon in 1863 provided for such an outright sale of the most desirable portion of their holdings in southeastern Kansas — a tract approximately 30 by 50 miles in size — for $300,000 (Article 1). Article 2 of the treaty provided for a-cession in trust for sale for the benefit of the tribes, of a much larger tract adjoining the first and extending far to the west, which was to, be sold under such rules and regulations as the Secretary of the Interior might prescribe, the proceeds of such sale to be used for the benefit of the Osage Indians. The treaty also provided for a diminished reserve to which the tribe was to withdraw. The remainder of this early treaty provided that the 16th and 36th, sections of land ceded by Article 2, were to be donated to the State of Kansas for school lands and that the Osage were to-be paid 25 cents per acre for such lands-One section of the land described in Article 1 was to be given to Father Schoen-maker for the Catholic Mission and the priest was to have the privilege of selecting two additional sections in this tract for which he should pay 50 cents per acre. All settlers who were already on Article 1 and Article 2 lands might, within one' year of ratification of the treaty, buy their lands for $1.25 per acre to the extent of a quarter section each. Tribal debts were; to be paid to the extent of $30,000. One section of land was to given to Charles Morgrain and $500 paid to him. Five hundred dollars each was to be paid to the chiefs and headmen of the Osage tribe yearly. No homestead or pre-emption rights were to be thereafter recognized on Article 1 lands except by direction of the President. Father John Schoenmaker was to be permitted to select two sections of land from the diminished reserve to be-granted to him in fee simple for a school, Darius Rogers was to- have the 160 acres on which were located his mill and improvements, in fee simple with the privilege of purchasing the quarter section adjoining such land for 50 cents per acre. Joseph Swiss, a half-breed tribal interpreter, was to have the half section on which his house stood and an additional half section of .land in the trust tract. On July 2, 1864, the Senate changed Article 2 to provide that the land should he surveyed and sold under the direction of :lie Commissioner of the General Land Office. Further amendments eliminated Article 3 providing for the donation of trust land to Kansas for school purposes; the price of the land which Father Schoenmaker was to be allowed to select from the trust lands was changed from 50 cents per acre to $1.25 per acre; Article 6, providing for the payment of tribal debts, tvas eliminated; the Article 10 grant in fee simple of two sections to John Schoenmaker, was changed to a grant of one section in trust with the proviso that when the land was no longer used for a school, it should revert to the United States and the Osage; Article 11 was changed to provide that the 160 acres to Darius Rogers on which -his mill stood, must be paid for at $1.25 per acre, and the price at which he might purchase the adjoining quarter section was raised to $1.25 per acre. With these changes the Senate consented to the ratification of the treaty, but for some reason, the treaty was again submitted to the Osage, who according to a letter from the Acting Commissioner of Indian Affairs, wished further changes made. In the opinion of the Commissioner, the resulting ;reaty was “unfit for publication,” and with the consent of the Secretary of the Interior, a new draft was prepared which purported to be the original treaty with the amendments of both the Senate and the Indians. It was this new draft that was submitted to the Osage at Fort Smith, Arkansas, just prior to September 29, 1865. In this new draft which was signed by the Osage at Fort Smith and later at Canville Trading Post, the following additional changes appeared. In Article 1 the western boundary of the ceded lands was limited to a natural marker at the request of the Osage and the expression “thirty miles” was eliminated. For the first time the provision relating to the disposition by the Government of the ceded lands and the civilization fund provision appears in the treaty. This was neither a Senate amendment nor a change requested by the Osage. With respect to the lands for the Catholic Mission, this new draft provided that the selections should be held in trusty and that the selections made would be subject to the approval of the Secretary of the Interior instead of the Commission of Indian Affairs. The article providing for the payment of $30,-000 of the Tribal debts, which the Senate had stricken in 1864, was reinstated at the request of the Indians, but the amount that could be paid was limited to $5,000. Since Charles Morgrain had died, the 1865 draft provided for the heirs of Morgrain, and the cash payment of $500 to Morgrain was eliminated. The draft eliminated the yearly payments of $500 to headmen. The material contained in Article 9 of the 1863 treaty forbidding the recognition of homestead and pre-emption claims in the future on the Article 1 land was incorporated in Article 1, and Article 9 was eliminated. Since Joseph Swiss had died, provision was made for 'his heirs. Two new articles were added providing that, Article 15 the Osage might unite with any tribe at peace with the United States in the Indian Territory, with provision for the proportionate payment of annuities; and, Article 16 that if the Osage should move to the Indian Territory, their diminished reserve should be disposed of in the same manner as provided in Article 2 for the trust lands. Up to this point in the treaty negotiations we find no concrete evidence to indicate that the Osage understood the provision in the new treaty that the lands, which they were admittedly willing to sell outright for $300,000 in 1863 and 1864, were to be disposed of by the Government and the proceeds used for the benefit of all other Indians in the United States. Is there anything in these prior negotiations which would justify an inference that1 the Osage understood this provision? With respect to the other new features appearing for the first time in the 1865 draft, it is noted that they were either plainly for the benefit of the Osage (requiring payment of $1.25 per acre for land instead of giving it away or selling it for less) or were to take care of such matters as the death of someone whom the Osage had wished to benefit. It is reasonable to assume that the Osage understood these changes and may have proposed some of them. The civilization fund provision, under the Government’s intention that it be used for other tribes, in no way benefited the Osage. It did not originate in the Senate. The mere fact that the Osage had agreed previously to sell this Article 1 tract outright does not, in our opinion, justify the inference that they fully understood and agreed to the civilization fund provision as it was written and submitted to them for the .first time at Fort Smith. The natural inference would seem to be that if the Osage Indians had fully understood the literal meaning and effect of this provision they would have objected to the use of the funds derived from the sale of lands long owned by them for the benefit of other Indian tribes, to the extent that such funds were in excess of the $300,000, plus expenses of sale. It would be difficult to infer that the Osage, who were practically destitute, were so generous as to wish to authorize the Government to pay them only $300,000 for lands that were worth much more and to use the excess received from the sale of such lands for the benefit of Indian tribes other than the Osage, with some of whom the relation of the Osage were definitely hostile. If, as found by the Commission, the civilization fund provision, which was an entirely new one, was fully explained to and understood by the Osage, the facts justifying such a conclusion must be found in what happened either at Fort Smith, or at Canville, on September 29. The council attended by the Osage at Fort Smith, Arkansas, in September 1865, was not merely a council of the Osage Nation called to execute a treaty of cession for the Osage. It was a council of all the southwest Indian tribes called by the United States