Full opinion text
OPINION PER CURIAM: This case comes before the court on the joint motion of the parties, filed March 21, 1980, moving that the court adopt as the basis for its judgment in this case the recommended decision of Trial Judge Robert J. Yock, filed October 18, 1979, pursuant to Rule 134(h), since neither party wishes to file any exception thereto. Upon consideration thereof, without oral argument, since the court agrees with the recommended decision, as hereinafter set forth, it hereby grants the parties’ motion and affirms and adopts the decision as the basis for its judgment in this case. Therefore, in accordance with the trial judge’s decision it is concluded and determined that plaintiff is entitled to recover against defendant a final award in the total sum of $720,615.89 and judgment is entered for plaintiff in that amount. OPINION OF TRIAL JUDGE YOCK, Trial Judge: In this case the Yankton Sioux Tribe raises claims arising from the sale of its reservation lands to the United States pursuant to the Agreement of December 31, 1892, Act of August 15, 1894, ch. 290, § 12, 28 Stat. 286 (1894) (section 12 ratified the Agreement with the Yankton Sioux or Dakota Indians, in South Dakota, December 31, 1892, 28 Stat. at 314 (hereinafter cited as Agreement of December 31, 1892)). Specifically, the tribe seeks to recover for the improper handling of both land and trust funds which belonged to the Yankton Sioux Tribe. A review of the history and events leading up to the instant case will clarify its present posture. The plaintiff, Yankton Sioux Tribe, originally filed its petition before the Indian Claims Commission on August 10, 1951. That petition was assigned Docket No. 332. In that petition plaintiff alleged several claims against the United States, including a claim for a general accounting which was set out in paragraphs 19, 20, and 21. By order of February 13, 1958, the Indian Claims Commission severed various claims under Docket 332, and the claim for a general accounting was assigned Docket No. 332-B. On the same date plaintiff filed an amended petition under said Docket 332-B in which, in paragraphs 6, 7, 8, and 9, plaintiff realleged almost verbatim the original claim for a general accounting. A final judgment was entered on behalf of plaintiff in Docket No. 332-B by way of a compromise settlement. Yankton Sioux Tribe v. United States, 28 Ind.Cl.Comm. 367, 385 (1972). In pertinent part, the Stipulation for Entry of Final Judgment signed by the attorneys provided: 2. Specifically this settlement shall not affect in any way the following claims in Docket No. 332-B or any procedural or substantive defenses the defendant may have thereto: a. any claims petitioner may have or assert for an accounting for the period commencing July 1, 1951; and b. any claims petitioner may have or assert arising from the sale of reservation lands pursuant to the Agreement of December 31,1892, 28 Stat. 314. [28 Ind.Cl.Comm. at 373.] The claims so reserved by the plaintiff were continued before the Commission and assigned to Docket No. 332-D (the instant case). A number of preliminary procedural matters were decided by the Indian Claims Commission in an earlier opinion in this Docket 332-D, Yankton Sioux Tribe v. United States, 37 Ind.Cl.Comm. 64 (1975). There, the plaintiff was ordered to show cause why its post-June 30,1951 accounting claim should not be dismissed; plaintiff’s motion for a supplemental accounting with respect to the land dispositions made by defendant pursuant to the Agreement of December 31, 1892, 28 Stat. 314 (1894) was denied; defendant’s motion to dismiss plaintiff’s claims with respect to the disposition of plaintiff’s lands pursuant to the Agreement of December 31, 1892, supra, was denied; and the defendant was ordered to supplement its 1965 Accounting Report with respect to certain disbursements. The post-June 30, 1951 accounting claim was subsequently dismissed. Yankton Sioux Tribe v. United States, 39 Ind.Cl.Comm. 149, 157 (1976). The supplemental accounting which was ordered by the Commission was filed by the defendant in late March 1976. Plaintiff’s exceptions to defendant’s accounting were filed on September 29, 1976, and defendant’s response to those exceptions was filed on December 20, 1976. Then, by order entered on February 2, 1977, the Commission set this case for trial on September 12, 1977, on the valuation issues raised by plaintiff’s land disposition claim under the Agreement of December 31, 1892, supra. That claim relates to the reservation lands reserved to the Yankton Sioux Tribe under Article I of the Treaty between the United States of America, and the Yancton Tribe of Sioux, of Dacotah Indians, April 19, 1858, 11 Stat. 743 (1859) (hereinafter Treaty of April 19,1858). Pursuant to Articles I and II of the Agreement of December 31, 1892, supra, plaintiff ceded all of the unallotted lands on that reservation for a consideration of $600,000, of which the principal sum of $500,000 was placed in the Treasury at 5 percent interest, and $100,000 was paid out to tribal members per capita. Plaintiff contends that the $600,000 consideration for the ceded lands was inadequate, and it seeks revision of the Agreement of December 31, 1892, supra, and additional compensation pursuant to section 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a (1976). Even though the Commission’s Order of February 2, 1977, set only the valuation issues for trial, plaintiff treated the accounting issues as also having been set for trial. Trial was held in the week of September 12, 1977. The defendant subsequently noted that it had no objections to the Commission’s deciding the accounting claims before it, even though they had not been specifically ordered for trial. After briefing, but before a decision was issued by the Indian Claims Commission, the Commission, having determined that it could not completely adjudicate the claims remaining in the case by September 30, 1978, transferred the case to the United States Court of Claims on July 13, 1978, pursuant to section 23 of the Indian Claims Commission Act, as amended, 25 U.S.C. § 70v (1976). Yankton Sioux Tribe v. United States, 42 Ind.Cl.Comm. 202, 203-04 (1978). By order dated April 6, 1979, the trial judge allowed further memoranda to be filed by the parties prior to decision in this case. In this posture, the following issues have been presented to the court for its determination: I. Land Claim A. How many acres were ceded by the Agreement of December 31, 1892, 28 Stat. 314 (1894)? This question involves two factors. One, the size of the reservation created by the Treaty of April 19, 1858, 11 Stat. 743 (1859). Plaintiff contends that it was 431,110.21 acres; defendant contends it was 400,000 acres. Two, the amount of lands allotted within said reservation. Plaintiff contends that only 230,000 acres were properly allotted; defendant claims that 268,-361.95 acres were so allotted. Plaintiff, therefore, contends that 201,110.21 (rounded to 201,110) acres of unallotted lands were ceded, while defendant claims that 131,638.-05 acres were ceded. B. What was the fair market value of the unallotted lands ceded by the 1892 Agreement, supra, as of December 31,1892? Plaintiff contends that said fair market value was $9.25 per acre, or, alternatively, $7.85 per acre if the lands were sold to a single investor rather than to individual settlers. Defendant’s appraiser testified that said lands had a fair market value of $3.35 per acre. The valuation differences are largely a factor of the dispute as to the size of the cession and the different adjustments of comparable sales data for improvements and for size. II. Fund Claims Has the defendant properly accounted for the proceeds of the 1892 Agreement, supra ? The defendant claims that it has so properly accounted and that this accounting shows no breach of any duty by the United States. Plaintiff contends that the accounting shows that the defendant breached its fiduciary obligations in several respects, for which plaintiff is entitled to $241,926 in damages. I. Land Claim Numerous cases have expressed the view that, when dealing with Indian property, the Government may be acting as a “trustee.” Navajo Tribe of Indians v. United States, 364 F.2d 320, 322, 176 Ct.Cl. 502, 507 (1966). See, e. g., Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942); Menominee Tribe v. United States, 101 Ct.Cl. 10, 19 (1944). See also Oneida Tribe v. United States, 165 Ct.Cl. 487, 494, cert. denied, 379 U.S. 946, 86 S.Ct. 441,13 L.Ed.2d 544 (1964), where Judge Davis indicated that it was unnecessary to determine whether the relationship between the tribe and the United States was technically a trusteeship or a guardianship, since in any event the United States had a special duty of care regarding the Oneida tribe’s property, under the circumstances. In the present case, the Indian Claims Commission has already specifically ruled that the Treaty of April 19, 1858, 11 Stat. 743 (1859), imposed upon the United States Government “the fiduciary duty to protect the integrity of the Plaintiff’s property, i. e., the reservation lands.” Yankton Sioux Tribe v. United States, 37 Ind.Cl. Comm. 64, 81 (1975). Accordingly, the defendant must be deemed to have been a trustee with respect to the Yankton Sioux Reservation lands. It is well-settled that “the standard of duty for the United States as trustee for Indians is not mere ‘reasonableness,’ but the highest fiduciary standards. See, e. g., United States v. Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 2207, 37 L.Ed.2d 22 (1973).” (other citations omitted). See also Coast Indian Community v. United States, 550 F.2d 639, 652-53, 213 Ct.Cl. 129, 153 (1977). Moreover, as the Court noted in Sac and Fox Tribe of Indians v. United States, 167 Ct.Cl. 710, 724, 340 F.2d 368, 375 (1964): In defining the fiduciary obligation assumed by the Government toward Indian tribes in cases involving land sales, this court said: A breach of that obligation by the Government may obviously involve conduct less than arbitrary, capricious, or fraudulent by an official charged with the position of trust. [United States v. Seminole Nation, 173 F.Supp. 784, 789, 146 Ct.Cl. 171, 179 (1959).] Moreover, when the Government, itself, is the purchaser of the Indian lands, it may be held to an especially high duty. In Ottawa Tribe v. United States, 166 Ct.Cl. 373, 380, cert. denied, 379 U.S. 929, 85 S.Ct. 324, 13 L.Ed.2d 341 (1964) the court discussed the standards applicable to a self-dealing trustee (in that case, a corrupt Indian agent committed a breach of trust against the Indians) as follows: The law requires what is called uberri-ma fides, the highest good faith, in matters of this kind. There can be no shading. This is not a sudden turn in the law. It is based upon centuries of human experience. The principle has been a gradual growth. It recognizes the frailties of human nature and curtains off any possibility of personal profit from such a confidential relationship. There is thus a basic reason for applying this principle of law. It has been found, through these years of revealing experience and continuing effort to perfect the law, that the only practical way to assure proper operation is to foreclose any possibility of the trusted representative’s making a personal profit out of transactions that are linked directly or indirectly to such a relationship. They are limited to the allowance of reasonable pay for work actually performed under the assignment. With respect to the Government, when it is involved in self-dealing, although it does not make a profit for itself, yet it must seek to maximize the benefit to the Indians as its wards when it purchases and resells their lands: A trustee is under a duty to exercise due care and prudence to preserve the trust property. If the trustee is guilty of negligence in his dealings with that property, the trustee is liable to the beneficiary for any loss thereon. Mere evidence of a disparity between the value that the trustee realized in disposing of trust property and the fair market value at the time of that disposition, as later independently appraised, is not sufficient to establish negligence or other breach on the part of the trustee. However, demonstration of fraud or gross negligence in the actual conduct of the United States as trustee, or in the conduct of its agents, will make the Government liable for damages in breach of trust growing out of the fraud or negligence. Further, a showing that the value realized from the trust property was so far below its fair market value as to constitute fraudulent conduct, gross negligence, or other breach of a fiduciary duty, will suffice without more to establish the trustee’s liability, [footnotes omitted.] [Coast Indian Community v. United States, supra, 550 F.2d at 653, 213 Ct.Cl. at 153-54.] It is against this background of fiduciary responsibilities that the plaintiff’s land claim must be evaluated. A. The Acreage Involved By the Agreement of December 31, 1892, 28 Stat. 314 (1894) (hereinafter the Agreement), the Yankton Sioux Tribe ceded all of its “unallotted lands” to the defendant. The Agreement did not specify the exact number of acres so ceded. Accordingly, this court must make the threshold determination of the number of acres so ceded prior to an evaluation of the adequacy of the consideration paid for those acres. In order to make that determination, it is necessary, first, to determine the size of the Yankton Sioux Reservation and than, second, to determine the number of acres allotted to individual Yanktons up to the time of the Agreement. 1. The Size of the Yankton Sioux Reservation In a separate and earlier proceeding, the Indian Claims Commission determined that, as of February 16, 1859, the Yankton Sioux Tribe had aboriginal title to a vast amount of land in southeastern South Dakota which included the Yankton Sioux Reservation in question in this docket. Yankton Sioux Tribe v. United States, 24 Ind.Cl.Comm. 208, 236-37 (1970). In that case, Docket No. 332-C, the Yankton Sioux Tribe claimed that under the Treaty of April 19, 1858, 11 Stat. 743 (1859), the United States paid the tribe an unconscionable consideration for the relinquishment of its tribal interest in certain lands other than the Yankton Sioux Reservation. The Indian Claims Commission completed consideration of that Docket No. 332-C prior to the Commission’s dissolution, and the Yankton Sioux Tribe has received a judgment for their claims to certain of those lands. See Yankton Sioux Tribe v. United States, 43 Ind.Cl.Comm. 1 (1978), aff’d in part by order of the United States Court of Claims, dated March 30,1979, entering judgment in Docket No. 332-C-l. The Treaty of April 19, 1858, 11 Stat. 743 (1859), created the Yankton Sioux Reservation of concern in this Docket No. 332-D. That treaty provided in pertinent part as follows: ARTICLE I. The said chiefs and delegates of said tribe of Indians do hereby cede and relinquish to the United States all the lands now owned, possessed, or claimed by them, wherever situated, except four hundred thousand acres thereof, situated and described as follows, to wit — Beginning at the mouth of the Naw-izi-wa-koo-pah or Chouteau River and extending up the Missouri River thirty miles; thence due north to a point; thence easterly to a point on the said Chouteau River; thence down said river to the place of beginning, so as to include the said quantity of four hundred thousand acres. They, also, hereby relinquish and abandon all claims and complaints about or growing out of any and all treaties heretofore made by them or other Indians, except their annuity rights under the treaty of Laramie, of September 17, A.D.1851. Plaintiff contends that as of the valuation date, the Yankton Sioux Reservation contained 431,110.21 acres based on the actual plats of survey. The defendant contends that the literal language of the 1858 Treaty limited the reservation size to 400,-000 acres. As noted above, the size of the Yankton Sioux Reservation is important to a determination of the number of acres ceded by the 1892 Agreement. This court agrees with the plaintiff that the Yankton Sioux Reservation contained 431,110.21 (hereinafter rounded to 431,110) acres as of the cession date of December 31, 1892. At the outset this court notes that the description of the Yankton Sioux Reservation in Article I of the 1858 Treaty is ambiguous. Two of the calls were not specified: “ * * * thence due north to a point [not identified]; thence easterly to a point [again not specified] * * The treaty description thus created an ambiguity by leaving two of the boundary points open. There were an infinite number of ways in which those two calls could define the boundaries of the Yankton Sioux Reservation, depending on the points chosen and the angle of the “easterly” slanting boundary. Accordingly, it is clear that the parties must have intended that the actual boundaries of the Yankton Sioux Reservation were to be ascertained by a subsequent survey on the ground. The defendant surveyed the reservation three times before it finally settled the boundary. The first survey seemed to include about 400,000 acres; the second survey contained about 427,000 acres; and the final survey encompassed about 431,000 acres, with plaintiff’s appraiser’s estimate of 431,110.21 acres being the most accurate in the record. In the final boundaries of the reservation, while the western boundary is due north, the northern boundary is more southeasterly than “easterly” as intended by the parties to the treaty. These final boundaries of the Yankton Sioux Reservation were respected by both parties for more than three decades up until the 1892 Agreement changed those boundaries by the cession at issue in this case. The defendant was well aware that the reservation as actually surveyed contained about 430,000 acres, and, indeed, the defendant seemed to have intended that result in adopting the last and largest survey. The local agent in 1888 anticipated that about 200,000 acres of the reservation would be allotted under the Indian General Allotment Act (Dawes Act), ch. 119, 24 Stat. 388 (1887), leaving about 230,000 acres for cession to the United States; impliedly, the agent must have thought that the reservation contained about 430,000 acres. The negotiators of the 1892 cession Agreement were also well aware that the actual size of the Yankton Sioux Reservation was over 430,000 acres and that fact was included in their report to Congress submitting the Agreement of December 31, 1892 for ratification. That Agreement was ratified by the Act of August 15,1894, ch. 290, § 12, 28 Stat. at 319, without mention of the size of the reservation. The defendant urges that, as a matter of law, the Yankton Sioux Reservation could not contain more than 400,000 acres as suggested by Article I of the 1858 Treaty. Citing United States v. Kiowa, Comanche and Apache Tribes, 479 F.2d 1369, 1373, 202 Ct.Cl. 29, 36 (1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974), defendant argues that the court and the parties are bound by the unambiguous words of the treaty. This court disagrees with the defendant’s reasoning because it finds that the description of the reservation given by the 1858 Treaty was ambiguous. It appears that the 400,000 acre figure given in the 1858 Treaty was intended to be an approximation of the acreage to be included in the reservation. The actual boundaries of the Yankton Sioux Reservation were to be established by a subsequent survey in the field. While the defendant could have adopted boundaries so that the reservation would have contained only 400,-000 acres, it chose instead to define boundaries of the reservation such that over 430,-000 acres were included. The general rule is that ambiguities in treaties should be resolved in favor of the Indians. See Antoine v. Washington, 420 U.S. 194, 199, 95 S.Ct. 944 (1975); Worcester v. Georgia, 31 (6 Pet.) U.S. 515, 8 L.Ed. 483 (1832). As the Court said in Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615 (1970): [TJhese treaties are not to be considered as exercises in ordinary conveyancing. The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm’s-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, see, e. g., Jones v. Meehan, 175 U.S. 1, 11[20 S.Ct. 1, 44 L.Ed. 49] (1899), and any doubtful expressions in them should be resolved in the Indians’ favor. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 [39 S.Ct. 40, 63 L.Ed. 138] (1918). Both the Court of Claims and the Indian Claims Commission have resolved doubtful expressions in Indian agreements in a manner favorable to the Indians. See, e. g., Standing Rock Sioux Tribe v. United States, 182 Ct.Cl. 813 (1968); Blackfeet and Gros Ventre Tribe v. United States, 32 Ind. Cl.Comm. 65, 111 (1973). For that matter in United States v. Kiowa Comanche and Apache Tribes, supra, upon which the defendant relies, the court went on to say that, Where the words of the Treaty leave room for more than one interpretation the court is to interpret the Treaty in a manner not prejudicial to the Indians. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 [8 L.Ed. 483] (1832). [479 F.2d at 1373, 202 Ct.Cl. at 36.] The rule resolving ambiguities in favor of the Indians is particularly applicable when such a resolution is consistent with contemporaneous interpretation of the 1858 Treaty by the executive branch in adopting reservation boundaries which included over 430,000 acres. As this court recently said in Duncan v. United States, 220 Ct.Cl. -, -, 597 F.2d 1337, 1342 (1979), vacated and remanded on other grounds, by the Supreme Court, April 21,1980, -U.S.-, 100 S.Ct. 1827, 64 L.Ed.2d 255. It is a “venerable principle” that an agency’s long-standing interpretation of a statute it is charged with implementing is entitled to great weight. See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 [89 S.Ct. 1794, 23 L.Ed.2d 371] (1969); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 121 [93 S.Ct. 2080, 36 L.Ed.2d 772] (1973) (quoting Red Lion); Vogt v. United States, 537 F.2d 405, 409, 210 Ct.Cl. 246, 252-53 (1976); Sode v. United States, 209 Ct.Cl. 180, 187, 531 F.2d 531, 535 (1976). This principle is particularly compelling when the agency interpretation is reinforced by subsequent congressional legislation * * *. E. g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 [94 S.Ct. 1757, 40 L.Ed.2d 134] (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-82 [89 S.Ct. 1794] (1969). Here the treaty description of the Yank-ton Sioux Reservation was inherently ambiguous, and the final boundaries of the reservation had to be settled in the field by subsequent survey. The executive branch determined to resolve the ambiguous treaty description in favor of the Indians and adopted reservation boundaries which this court has found (for present purposes) to include 431,110 acres. Those treaty boundaries were respected by both parties for over three decades prior to the 1892 Agreement, and, moreover, in ratifying the 1892 Agreement, Congress was aware that the Yankton Sioux Reservation contained over 430,000 acres. Under these circumstances this court resolves the ambiguous 1858 Treaty description in favor of the plaintiff tribe and concludes that for the purpose of determining the number of acres ceded by the tribe pursuant to the 1892 Agreement, the Yankton Sioux Reservation contained 431,110 acres. 2. The Amount of Lands Allotted As the court stated in United States v. Creek Nation, 476 F.2d 1290, 1303, 201 Ct.Cl. 386, 408 (1973): Where reserves or grants to individual tribal members are bargained for by the tribe and are actually received by the reservees or grantees, they usually have been deducted from the acreage for which the tribe is to be compensated. Citizens Band of Potawatomi Indians v. United States, 391 F.2d 614, 179 Ct.Cl. 473, cert. denied, 389 U.S. 1046 [88 S.Ct. 771, 19 L.Ed.2d 839] (1968); Absentee Shawnee Tribe of Oklahoma v. United States, 165 Ct.Cl. 510 (1964); Cherokee Freedmen v. United States, 161 Ct.Cl. 787 (1963). In the present case the defendant urges that 268,361.95 acres of the Yankton Sioux Reservation were allotted to and received by individual tribal members. The plaintiff contends that not more than 230,000 acres were properly allotted to members of the tribe. This court has determined that there is substantial evidence in the record to indicate that not more than 230,000 acres were properly allotted and adopts that figure for the purpose of determining the number of acres ceded by the 1892 Agreement. The United States, having decided to liquidate the Yankton Sioux Reservation through allotment of some lands and cession of the rest, had a duty to do so in a responsible way. The Indian Claims Commission has described the duties of the United States when allotting Indian lands under the Dawes Act as follows: It must be borne in mind, however, that the United States, once having decided upon and having begun to implement the dissolution of the Creek Nation became “in the nature of a trustee for liquidation purposes” with respect to the lands of the Creek Nation. See The Chickasaw Nation of Indians v. United States [7 Ind.Cl.Comm. 64, 89-90 (1959)]. The United States assumed the task of terminating the Nation’s mode of life including its manner of holding its lands. In these circumstances and when placed within the framework of the “fair and honorable dealings” clause of the Indian Claims Commission Act, it was incumbent upon the United States to take every conceivable precaution to insure that the Creek Nation did not suffer the loss of any of its lands. [Creek Nation v. United States, 24 Ind.Cl.Comm. 238, 250 (1970), aff’d by order of April 4, 1978, 216 Ct.Cl. -(1978).] As the Commission stated in Chickasaw Nation v. United States, 7 Ind.Cl.Comm. 64, 89 (1959): The Government thereby assumed direct control over the property of the Indians, not for its own direct benefit, but for the benefit of the owners to liquidate and otherwise distribute same. Defendant thereby assumed such powers and functions, and we think, duties and obligations over petitioner and its property as to become in the nature of a trustee for liquidation purposes. Such failure to arrange and provide compensation to petitioner, on the part of the United States, was not an instance merely of “unconscionable consideration,” it was a taking of property without any compensation to petitioner. Thus, it is settled that the defendant assumed certain fiduciary responsibilities in undertaking to allot and liquidate the Yankton Sioux Reservation. The official allotment schedules appear to the court to show that 267,943.44 acres of the Yankton Sioux Reservation were allotted. In the absence of proof to the contrary, the accuracy of such official schedules is presumed to be correct. See, e. g., Andrade v. United States, 485 F.2d 660, 665, 202 Ct.Cl. 988, 998 (1973), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974), Dargo v. United States, 176 Ct.Cl. 1193, 1206 (1966). Cf. Saginaw Chippewa Indian Tribe v. United States, 41 Ind.Cl. Comm. 327, 346-47 (1978). Moreover, the burden of proving any impropriety lies with the plaintiff. Lower Sioux Indian Community v. United States, 36 Ind.Cl.Comm. 295, 380 (1975). Plaintiff presented substantial evidence that as a result of inefficiency, favoritism, and fraud practiced by defendant’s agents in the administration of the allotment process, the Yankton Sioux Tribe lost control over a great deal of land which was listed as approved Yankton allotments in the official allotment schedules. While plaintiff was unable to prove specifically which of all the allotments were improper in every case (most likely due to the poor state of the records involving such lands), this court has concluded that the evidence of improper allotments presented by the plaintiff was more than sufficient to rebut the presumption of regularity which normally would be attached to the official allotment schedules. Moreover, other compelling evidence in the record allows this court to reach a determination of the extent of properly allotted lands. Specifically, plaintiff has pointed this court to evidence that in 1908, the U. S. Indian Agent, R. J. Taylor, in describing the general condition of the Yanktons, listed only 230,000 acres as “original allotments.” A subsequent Yankton agent, E. W. Estep, made a far more damaging statement in his 1910 annual report: Allotments were made to 2,649 individuals and included 268,567 acres of land. It was afterwards found that quite a number of these allotments were made to ficticious [sic] persons, or were duplicate or erroneous. When these were taken out it was considered that about 230,000 acres was [sic] rightfully allotted to members of the tribe. Even the defendant in its brief before the Indian Claims Commission conceded that approximately 3,091 acres of the approximately 38,000 acres may have been allotted improperly and suggested that the court subtract that figure from the official allotment figure to arrive at the properly allotted acres. However, in view of the entire history and record of this case, this court is more inclined to accept plaintiff’s figure as more in line with what actually was invalidly allotted through haste, error, or fraud. In any event, the above discussed evidence recorded by defendant’s own agents, is quite compelling. Based on this evidence, the court has determined that not more than 230,000 acres of the Yankton Sioux Reservation were properly allotted to members of the tribe and adopts that figure for the purpose of determining the amount of land ceded by the 1892 Agreement. 3. The Amount of Land Ceded Article I of the Agreement of December 31, 1892, 28 Stat. at 314 provided: The Yankton tribe of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said Indians as aforesaid. Thus, the Agreement of 1892 provided for the cession of all unallotted lands on the Yankton Sioux Reservation. For the purpose of determining the amount of land ceded by the 1892 Agreement, this court has concluded that the approximately 38,000 acres which were improperly allotted by defendant’s agents must be treated as if they were “unallotted.” Only in this way can the defendant be held to its “fiduciary duty to protect the integrity of the plaintiff’s property, i. e., the reservation lands.” Yankton Sioux Tribe v. United States, 37 Ind.Cl.Comm. 64, 81 (1975). See also Coast Indian Community, supra; Sac and Fox Tribe, supra. This court has accepted the figure of 431,110 acres as the best available from the evidence presented of the total number of acres on the Yankton Sioux Reservation at the time of cession. This court has also accepted the figure of 230,000 acres as the best available from the evidence presented on the extent of properly allotted Yankton lands. Therefore, this court concludes that the amount of subject land for which the plaintiff was entitled to adequate compensation constituted about 201,110 acres, the difference between the above two figures. B. The Value of the Land Ceded 1. Description of the Land The subject lands comprised the unallot-ted and improperly allotted lands on the Yankton Sioux Reservation which lay in the eastern portion of Charles Mix County, South Dakota. The reservation was bounded by the Missouri River on the south, Chouteau River (currently known as Chou-teau Creek) and Bon Homme County on the east, Douglas County on the north, and the balance of Charles Mix County on the west. Since the Indians had taken up allotments mainly in the southern part of the subject area, but also throughout the reservation, blocks of unallotted and improperly allotted lands were located throughout the reservation. The two largest blocks were in the northeast and northwest corners of the reservation. The Yankton Sioux Reservation was one of the finest tracts of land held by Indians in the northwest of the United States. The lands were rich, agricultural lands, with a minimum of rougher areas more suitable for pasture. The subject lands may have been slightly inferior in quality to the properly allotted lands, since most of the unal-lotted lands tended to lay in the northern parts of the reservation that may have been less sheltered and protected. Nevertheless, nearly all of the subject lands were arable and of good quality for crop-production farming and stockraising purposes. The topography of the reservation area is nearly level with the exception of the land near the Missouri River. No more than 10 percent of the area was rough, river bluff area or Missouri River bottom lands. The balance of the property, or at least 90 percent of the land being valued, is located in the northern reservation portion of Charles Mix County where the topography is nearly level to gently sloping with the drainage to the south. Most of eastern South Dakota, including over 90 percent of the subject property, has a clay-loam soil derived from glacial drift. This soil is rich in humus and is dark colored to a depth of approximately a foot. The soil is very productive and compares favorably with the more productive soils found in the upper Midwest area of the United States known as the Corn Belt. The average annual precipitation for the subject lands is about 20 to 22 inches, three-quarters of which falls within the April-to-September growing season. The subject area is susceptible to fluctuations within and over years as to rainfall. Starting in about 1886, a cycle of dry years began which did not end until 1897. The worst of the dry years were 1889 and 1894, during which severe droughts affected the state. Crop yields were low in 1889 and 1890; however, in 1891 South Dakota had “bumper” crops, and in 1892, the year of the valuation, it also had large crop yields. The droughts appeared to be less severe in the subject area than in the more northern and western parts of South Dakota. Moreover, farmers in the southeastern parts of the state were somewhat protected from the effects of dry weather by the more diversified nature of the economy there. Also, it appears that farmers were more than able to make up for small yields in dry years by larger crop yields in the better years. As of the valuation date, December 81, 1892, the subject lands were not crossed by an existing railroad. A railroad from the east terminating at Armour, South Dakota, in Douglas County, paralleled the northern border of the subject lands at a distance of 6 miles from that border with two stations available, one at Armour and one at Del-mont. A second railroad line paralleled the eastern border in Bon Homme County at a distance of about 12 miles with stations at Tyndall and Running Water. During this period, once a rail route had been agreed upon, the building of the lines took place in what was then considered a very short time. It may be assumed, therefore, that proximate rail transportation to all points on the Yankton Sioux Reservation could reasonably be expected to follow quite quickly after the opening of those lands. In fact, a railroad was built into the former reservation lands from east to west in 1900. It may also be noted that the southern border of the reservation was the Missouri River, although water transportation was not as important in 1892, as it was 10-12 years before, prior to the advent of the railroads. There were also overland horse and buggy (wagon) trails or paths throughout the subject area. However, there were no established roads as the term would be understood today. At the date of valuation, there were no known developments of mineral deposits in the subject area. There were some scattered supplies of rough building stone sufficient to satisfy local demand. The subject area was poor in fuels of all sorts. South Dakota, being prairie, was largely devoid of timber upon its plains, although there was some timber along the riverbeds. South Dakota became a state in 1889. In 1890, the state had 348,600 people, and in 1900 it had 401,570 people. Charles Mix County had a population (apparently not counting Indians) of 407 in 1880, over 4,000 in 1890, and over 8,000 by 1900. From 1890 to 1895, South Dakota’s population declined slightly because of economic conditions; however, this court has found that the population of Charles Mix County was probably at least 4,000 at the time of the valuation, and it was probably increasing at that time. This court has concluded from all of the evidence in the record that the highest and best use for the subject lands as of the appraisal date would have been for agricultural purposes. Economically-sized units could be farmed as grain farms (e. g., wheat and corn) or combination grain and livestock farms. 2. Economic Conditions and Demand for the Subject Lands As of the valuation date, values for land had come down from what they were at the height of the Dakota land boom in the early 1880’s. In the early years of settlement, precipitation levels had been very high; however, by the late 1880’s the discovery of fluctuations in precipitation levels (including drought) had depressed land values, at least initially. The valuation date, December 31, 1892, fell within a period of relative optimism between the Depression of 1884 and that of 1893. For that matter, the effects of the Panic of 1893 were not really felt in South Dakota until 1895. On the average, grain prices fell from 1890 until at least 1900. The lower prices for grains in 1892 were more than likely due to abundant crops worldwide. The much lower prices in 1895 were the after effects of the Panic of 1893, and they could not have been foreseen on the valuation date. For the purposes of this valuation, the most important observation about the economy is that factors governing economic conditions in the subject area were reflected in the abutting lands from which appraisers for both parties drew their comparable sales for the purpose of determining the fair market value of the subject lands. By 1879, most of the desirable farm lands in the east had been occupied. This made the fertile areas of the Dakota Territory very desirable and encouraged rapid settlement. By 1887, most of the free land in Dakota east of the Missouri River had also been taken up by settlers. Dakota lands west of the Missouri River, opened for settlement in 1890, tended to be more suited for grazing than for crop farming. This left the subject lands as an enclave of good, undeveloped agricultural lands in an area which had already been built up with farms and villages, some of them served by railroads. The record is clear that there was a strong demand for the opening of the arable but “idle” Yankton lands. Pursuant to the authority vested in him by the Act of August 15, 1894 (which ratified the 1892 Agreement), the President of the United States, by Proclamation of May 16, 1895, 29 Stat. 865 (1895), opened over ■ 150,000 acres of the Yankton Sioux ceded lands for entry by settlors. Settlement proceeded at a rapid pace. In the 75V2 months remaining of the year 1895, over 56,000 acres were taken up by settlors. In 1896, over 13,000 additional acres were taken up, and in 1897, over 35,000 acres were taken up. Thus, over 100,000 acres were taken up in the first 3 years. During the first 5 years, almost 90 percent of the lands were taken up. Thus, it is clear from the record that there was an extensive demand for the type of agricultural lands present on the Yankton Sioux Reservation. 3. The Plaintiff’s Appraisal The plaintiff tribe relied upon Mr. Neil A. Thomas, a land appraiser from Denver, Colorado, to establish an 1892 fair market value for the ceded lands on the Yankton Sioux Reservation. Mr. Thomas submitted an appraisal report and testified for the plaintiff tribe in support of his value conclusions and in rebuttal of the conclusions reached by the defendant’s appraiser. As a result of his initial efforts and based on the legal theory that the Yankton lands should have been sold by appraisal and sale of economically-sized farms to individual settlers, Mr. Thomas concluded that in 1892, the ceded lands were worth about $9.25 per acre; this translates into about $1,860,-267.50 for the 201,110 acres herein involved. Based on the legal theory that the entire subject property would be sold to a single buyer who would then resell the subject lands to settlers, Mr. Thomas’ rebuttal testimony offers an alternative valuation estimate for the ceded lands of about $7.85 per acre; this translates into about $1,578,-713.50 for the 201,110 acres. Basically, Mr. Thomas used a comparable sales approach in order to arrive at an estimated fair market value of the subject lands on the valuation date of December 31, 1892. Mr. Thomas initially abstracted 1,230 apparently arm’s-length sales from Bon Homme, Douglas, and Charles Mix Counties. The average size tract was 165.4 acres and the overall weighted sales price was $10.14 per acre, based on sales for the time period 1890-94. Of note, in 1892, 160 sales in Bon Homme County (to the east of the Yankton Reservation) yielded an average price per acre of $12.04; in Douglas County (to the north) 62 sales were at an average of $8.08 per acre; and in Charles Mix County (to the west) 2 sales were at an average of $9.52, and 173 sales were at $7.23 per acre. The court notes in passing that the simple average price per acre, based on all of these 1892 sales, comes to about $9.31 per acre. After determining that location seemed to be the most important influence on price variations for the abstracted lands, Mr. Thomas focused upon the sales in the townships surrounding and immediately abutting the subject lands. Because the valuation date was December 31, 1892, Mr. Thomas utilized the sales data for the time period 1890 through 1893. There were 890 such sales in the relevant areas. Mr. Thomas computed the weighted average price per acre for each township in the study area. Considering first the sales in the townships nearest the northeasterly portion of the subject property. Mr. Thomas noted that the sales immediately adjacent to the reservation were at prices of $12.36, $8.85, $10.11, and $10.48 per acre moving from southeast to northwest. Sales in closest proximity to the northwesterly part of the subject lands ranged in price from about $7.37 to over $10 per acre. Mr. Thomas made minor adjustments for location and quality and concluded that the northeasterly portion of the subject lands had a value of about $11 per acre and the northwesterly portion of the subject lands had a value of about $8.50 per acre. Based on an analysis of the location of the lands opened by the 1895 Presidential proclamation, Mr. Thomas estimated that about one-half of the opened lands were in the easterly portion of the reservation and the other half were in the westerly portion. Accordingly, Mr. Thomas concluded that one-half of the subject land had a value of $11 per acre and the other half had a value of $8.50 per acre, indicating an overall average value of $9.75 per acre. To his projected $9.75 per acre average retail price for the subject lands, Mr. Thomas applied a 5 percent discount to take into account the fact that most of the subject lands were unimproved, whereas some of the lands involved in the surrounding comparable sales had the benefit of some improvements. Five percent of the $9.75 per acre comparable sales price equals $0.4875 which Mr. Thomas rounded to $0.50 per acre. This discount of $0.50 per acre leads to a net value indication of $9.25 per acre. In his initial appraisal estimate, no further adjustments or discounts were applied. Consequently, Mr. Thomas’ $9.25 per acre price would yield a net value for the 201,110 acres ceded of about $1,860,267.50. From his rebuttal testimony it is possible for this court to determine an alternative appraisal by Mr. Thomas, based on the legal theory that the entire subject property would be sold to a single buyer who would then resell the subject lands to settlers. Mr. Thomas postulated that such a prospective buyer could expect to recoup his investment within 3 years. He would expect the values of the unsold tracts within the subject tract to increase within the period of recoupment and thereafter by reasons of the improvements brought in by the first settlers. The prospective purchaser would have been aware of the potential returns to alternative forms of investment, and he would have been aware of the demand for the Yankton lands. This hypothetical prospective purchaser would have considered the stability of the market and concluded, in light of the rate of return available to him from alternative opportunities of investment, that he would do well with 8 percent return on his money and 10 percent for entrepreneurship plus a 5 percent expense item for administrative expenses and commission costs. Thus, Mr. Thomas suggested that a reasonable discount for profit and costs would have been about 25 percent. A hypothetical purchaser could, therefore, afford to pay about 75 percent of the price that would have been obtained in the retail sales market (after discounting for improvements). Based on the increasing land prices in the 1891 through 1892 period, Mr. Thomas speculated that his prospective purchaser would expect an increase about $2.50 an acre over the then retail price in the 3-year period which it would take to dispose of the land. Conservatively, the purchaser would have counted on an overall enhancement of at least $1.25 per acre. Adding, this $1.25 figure to the $9.25 per acre unimproved value of the subject lands leads to an average $10.50 per acre resale value for the land. Applying the 25 percent discount for costs and profit, the prospective purchaser would have been willing to pay approximately $7.85 per acre for the land. Multiplied times the approximate area of the subject lands of 201,110 acres, this leads to an alternative value estimate of $1,578,713.50, if the subject lands were to be sold to a single investor. After giving due consideration to Mr. Thomas’ appraisal report and his testimony, the court has concluded that neither of his valuations of the subject lands is supported by the record. The initial comparable sales index value of $9.75 per acre for improved lands in the surrounding area is highly suspect because it relies in part on sales which occurred in 1893, after the December 31, 1892 valuation date. As the Commission said in United States v. Miami Tribe, 9 Ind.Cl.Comm. 1, 13 (1960), aff’d, 159 Ct.Cl. 593 (1962): These were occurrences that took place after the valuation date and could not have been known to a prospective purchaser on the valuation date, therefore, as this Commission sees it, should not be taken into consideration in determining the value of the land at the time of the cession. These facts are to be considered only as confirmation of the correctness of findings on value as made. Thus, the Commission eschewed the use of hindsight sales where more timely data was available. Ponca Tribe v. United States, 28 Ind.Cl.Comm. 335, 341-42 (1972). This court agrees with the Commission that the proper role of such postcession land sales is to confirm a value conclusion and not to forecast one. See Yankton Sioux Tribe v. United States, 43 Ind.Cl.Comm. 1, 8 (1978), aff’d in part by order of the U.S. Court of Claims, dated March 30, 1979, entering judgment in Docket No. 332-C-l. Cf. Iowa Tribe v. United States, 22 Ind.Cl.Comm. 385, 405 (1970); United States v. Reynolds, 397 U.S. 14, 16-18, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970). Plaintiff’s arguments to the contrary are not compelling. Plaintiff has urged that it is necessary to consider such subsequent sales because the valuation date, December 31, 1892, fell at the end of the year and so the 1892 sales would not sufficiently reflect the upward trend in land prices at the end of 1892. Therefore, plaintiff relied on the 1893 sales to reflect that upward trend. This court cannot agree with that approach, where, as here, there were numerous sales prior to the valuation date available for comparison. Perhaps plaintiff could have demonstrated this “upward trend” by segregating the numerous 1892 sales by month of the year. In any event, plaintiff cannot point to subsequent sales as a proxy for proof of any such “upward trend.” Prospective purchasers on the valuation date could not know what the prices of land sales would be in 1893 but could only speculate. Thus, this court has concluded that Mr. Thomas’ use of the 1893 sales data in this way is speculative and taints his comparable sales index and consequent appraisals. Moreover, under advice of plaintiff’s counsel, Mr. Thomas’ initial appraisal assumed that the ceded Yankton lands would be sold by appraisal and sale method in family-sized plots (160 acre plots). Accordingly, only the retail price of $9.25 per acre was calculated. For reasons that are discussed more fully below, this court has determined that the proper legal theory for the purpose of valuing the subject lands is to assume that the entire 201,110 acres would have been sold to a single knowledgeable buyer who would then have resold the subject lands to settlers. Accordingly, Mr. Thomas’ initial appraisal estimate is overly optimistic since it fails to discount for the costs and profits involved in buying and reselling such a vast amount of land. Mr. Thomas’ alternative appraisal estimate does properly discount for size. Unfortunately, Mr. Thomas added an enhancement value of $1.25 per acre to the unimproved value per acre of subject land which he had calculated. This enhancement value was to take into account the likelihood of a continuing “upward trend” in land prices to be expected after the valuation date. Although the court recognizes a distinction between “enhancement” and “upward trend,” both concepts seek higher values based upon speculation of increased prices. This court views the reasons, previously expressed, for dismissing the evidence of post-1892 sales which indicate an “upward trend” as also necessitating the exclusion of any recovery based upon “enhancement.” A prospective purchaser could not assume that retail land prices would continue to rise through the expected 3 to 5 year holding period following the cession: future prices are always speculative. Thus, the addition of enhancement value to the per acre estimated value of the subject lands makes Mr. Thomas’ alternative appraisal also overly optimistic. Although this court rejects both of the appraisals which plaintiff relies upon, it does find support in the record for Mr. Thomas’ 5 percent discount for improvements and for his 25 percent discount for costs and profits and therefore adopts them. Moreover, much of the sales data offered by Mr. Thomas was helpful to this court in reaching its own appraisal estimate. 4. The Defendant’s Appraisal Mr. James L. Sawyers, a real estate appraiser from Kansas City, Missouri, was the defendant’s expert witness on value. Mr. Sawyers filed an extensive appraisal report and also testified in support of his value conclusions at the trial before the Indian Claims Commission. Based on the assumption that only 159,757 acres were ceded by the 1892 Agreement, Mr. Sawyers concluded that the total value of the ceded lands would have been $535,500 or $3.35 per acre, as of the valuation date of December 31, 1892. Based on 201,110 aeres ceded, at $3.35 per acre, the value of the ceded lands would be $673,718.50. In valuing the subject lands, Mr. Sawyers also used a comparable sales approach in order to arrive at an estimated fair market value of the subject lands on the valuation date. He obtained 175 sales of land in townships adjoining the subject property. All of the sales occurred during the year 1892, and the appraiser attempted to exclude all sales which were not at arm’s length. Ninety-one of the sales were located in Charles Mix County, 46 were in Douglas County, and 38 were in Bon Homme County. It appears from the record that many of the sales selected by Mr. Sawyers also had appeared in the sample of sales chosen by the plaintiff’s appraiser. In any event, having determined that the comparable sales represented a cross section of the subject property lands in reference to location and productivity, Mr. Sawyers simply averaged the sales for the three counties and came up with an average price of $9.34 per acre for the 175 sales. That figure accords well with the court’s simple average of the plaintiff appraiser’s 1892 sales, being $9.31 per acre. Using 1900 census data, Mr. Sawyers developed a discount for improvements theory equal to 10.3 percent. Applied to the comparable sales price, this discount for improvements leads to a price for the unimproved subject lands equal to about $8.38 per acre. Mr. Sawyers expected that the probable sales costs would be 10 percent. He also determined that a prospective purchaser would expect to make a profit of 50 percent in order to ensure a return on his capital and provide adequate compensation for his risks. Deducting this 60 percent in discounts from the $8.38 per acre unimproved price, Mr. Sawyers concluded that a land speculator could only afford to pay $3.35 per acre for the subject lands, as of the valuation date of December 31, 1892. While this court adopts Mr. Sawyers’ $9.34 per acre comparable sales index, it rejects his value conclusion as too restrictive and not supported by the record. At the outset, of course, this court has determined that about 201,110 acres were ceded by the 1892 Agreement, and not 159,757 acres as Mr. Sawyers assumes. This court also rejects all of the discounts that Mr. Sawyers applied as being excessive. Mr. Sawyers’ discount for improvements of 10.3 percent was based on census data for the year 1900. Such a discount might be appropriate as applicable to sales occurring in 1900, but it is of limited value for determining the extent of improvements as of the valuation date, December 31, 1892, and so the court rejects Mr. Sawyers’ discount for improvements. Cf. Miami Tribe, supra; Ponca Tribe, supra (in both cases the Commission eschewed the use of subsequent sales data where more timely data was available). Mr. Sawyers’ discount for probable sales expenses (10 percent) and his discount for profits (50 percent) are based largely upon studies of land speculators operating in Iowa and Nebraska in the 1850’s, 1860’s, and 1870’s. Such reliance by the defendant’s appraiser is also misplaced, and this court finds that the discounts for probable sales expenses and for profits used by Mr. Sawyers were excessive. This court cannot consider such earlier sales to speculators as comparable for valuation purposes. Cf. Strong v. United States, 43 Ind.Cl.Comm. 311, 322 (1978); Saginaw Chippewa Indian Tribe v. United States, 41 Ind.Cl.Comm. 327, 333, 340 (1978). Accordingly, this court has rejected all of the discounts which defendant’s appraiser sought to apply. However, much of the sales data offered by Mr. Sawyers was helpful to this court in reaching its own appraisal estimate. 5. The Court’s Valuation The court has concluded from all the evidence in the record that the 201,110 acres on the Yankton Sioux Reservation which were ceded by the 1892 Agreement had a fair market value of $1,337,381.50 or about $6.65 per acre, on December 31, 1892. In settling on these figures, this court has also adopted the comparable sales approach, since there were restrictions on the sale of reservation land prior to the 1892 Agreement. The comparable sales approach has long been approved by the Court of Claims: Consideration of comparable private sales in and near the subject lands has been approved by this court, particularly in the absence of any private sales market for the subject lands in a number of cases. [Citations omitted.] [Sac and Fox Tribe of Indians of Oklahoma v. United States, 340 F.2d 368, 370, 167 Ct.Cl. 710, 714-15 (1964).] Defendant’s comparable sales index for improved lands surrounding the Yankton Sioux Reservation yielded an average price per acre of $9.34, based on 1892 sales. The plaintiff’s comparable sales index for improved lands surrounding the Yankton Sioux Reservation yielded an average price per acre of $9.75, but it was based on sales occurring in the time period from 1890 through 1893. This court has rejected the plaintiff’s comparable sales index because it included sales occurring after the valuation date of December 31, 1892, and such sales could not have been known to or considered by a prospective purchaser as of that date. That the inclusion of the 1893 sales inflated the plaintiff’s comparable sales index is apparent from the court’s own simple average of Mr. Thomas’ 1892 sales data — that average yielded a price of $9.31 per acre for the comparable sales of improved land around the Yankton Sioux Reservation, based on 1892 sales. Plaintiff has failed to convince the court of any “upward trend” in land prices in 1892 which would require the court to adopt a higher figure for the valuation date than the per acre average figure for the year 1892. Accordingly, this court adopts defendant’s comparable sales index price of $9.34 per acre for the improved land surrounding the Yankton Sioux Reservation as of December 31, 1892. This figure was developed by an expert appraiser, and so, from the court’s point of view, is preferable to any figure that this court might itself develop from the rough sales data before it. For that matter, this figure is more favorable to the plaintiff than the court’s simple average figure of $9.31 per acre. To relate the retail sales figure to the market value of the subject lands, this court must consider the customary discounts. See, e. g., Creek Nation v. United States, 40 Ind.Cl.Comm. 175, 187 (1977). At the outset, this court has applied a 5 percent discount on the comparable sales lands to take into account such improvements as fencing buildings, etc. It is clear from the record that the subject lands were unimproved; whereas, some of the surrounding lands used for comparable sales had been improved to one extent or another. Defendant’s appraiser relied on 1900 census data to urge a 10.3 percent improvements discount, and this court has rejected that discount because such subsequent data is of limited value to a valuation of lands in 1892. Instead, this court has adopted the 5 percent improvements discount utilized by plaintiff’s appraiser, Mr. Thomas. Basically, Mr. Thomas found contemporaneous assessor records for all three of the counties from which comparable sales were drawn. His detailed analysis of those records offer substantial support here for the conclusion that an improvements discount of no more than 5 percent should be applied to the comparable sales index developed for the surrounding improved lands. Cf. Yankton Sioux Tribe v. United States, supra, 43 Ind.Cl. Comm. at 13 (where the same assessor records were deemed inapplicable to the 1859 valuation of Royce 410 lands involved there). Accordingly, this court adopts that 5 percent figure and applies it to the $9.34 per acre figure to yield a price of approximately $8.87 per acre for the ceded unimproved lands. Plaintiff would have this court apply this $8.87 figure to the 201,110 acres of ceded lands