The opinion
DAVIS, Judge
(dissenting):
The court’s opinion weaves legal propositions together with factual evaluations to come up with what seems to me a mistaken result. I discuss first the legal points and then the court’s factual appraisal of the two sets of attorneys’ services.
*105 I
The basic legal error, as I see it, in the court’s opinion — leading to a marked inconsistency in the presentation — is its failure to recognize in the first four-fifths of its opinion that the claims belonged solely to the original Miami Tribe, not at all to the Oklahoma Miamis or the Indiana Miamis separately. This is the whole foundation of that portion of Part V of the opinion which divides the fee equally, but is ignored and contravened in Parts I, II, III and IV.
The stress in those earlier sections on the separate identity of the Indiana Miamis and Oklahoma Miamis, while true, is wholly beside the point. Those groups acted simply as representatives of the original Miami Tribe. This case would be exactly the same if, instead of entities like the Indiana Miamis and the Oklahoma Miamis, there were two separate unorganized groups of named individuals, purporting to represent the entire Miami Tribe, and filing independent suits on behalf of the whole Miami Tribe. The only relevant Indian group, for deciding the merits of these particular claims, is that original Miami Tribe. The Indian Claims Commission Act makes a clear distinction between plaintiffs (or petitioners) and claims; there can be, and often are, several plaintiffs pursuing a single claim. That is what happened here. The separate cases were not consolidated for the Commission’s convenience but because the claims were single and belonged only to the Miamis as a whole — it would have been quite impracticable to try these single, unitary claims in separate lawsuits just because several plaintiffs filed to push the same claims. A joint trial was essential.
Once it is recognized all the way through, as it must be, that the Indiana Miamis and Oklahoma Miamis were both prosecuting the very same claims on behalf of the larger entity which once existed (just as if they were unorganized individual descendants), then it seems to me gravely wrong to hold that the Indian Claims Commission is barred from apportioning the attorneys’ fees because of the contracts entered into by the two separate successor groups. The reference in 25 U.S.C. § 70n to fees fixed by a contract necessarily refers to cases where (a) there is only one petitioner before the tribunal, having one contract with an attorney (or set of attorneys) or (b) several petitioners pursuing a single claim, all of whom have jointly entered into an agreement with the attorneys. Where, as here, there is only a single claim but several independent petitioners, each with his own attorney and attorney-contract allowing 10% of the recovery, it is impossible to enforce the contracts as literally written, and Congress could not have so intended. The Commission would have to divide the 10% fee, just as we have held it would have to do if the same petitioner happened to retain successive lawyers, each guaranteed a 10% fee. Sisseton and Wahpeton Bands or Tribes v. United States, 423 F.2d 1386 , 191 Ct.Cl. 459 (1970). In that decision, we expressly rejected the point made by the successor lawyers that their fee of a full 10% had been stipulated in an approved contract, and therefore that the Commission had no power to fix any lesser sum for them. Because of the earlier participation of the other lawyers, we ruled that an apportionment necessarily had to be made.
I see no significant difference between the position and rights of two sets of attorneys for the same petitioner, one succeeding the other in pursuing the same claim, and two sets of attorneys representing different petitioners prosecuting the very same claim simultaneously. Neither group of lawyers can exclude the other by making a full 10% fee arrangement, nor can the Commission award more than 10% of the final joint award. 423 F.2d at 1388-1389 , 191 Ct.Cl. at 464-466 .
To say that in those circumstances each set of lawyers is entitled by law to half of the fee is to disregard what everyone knows — that attorneys can and often do differ very widely in their contribution to an ultimate victory — and thus serve, if the contributions are un *106 equal, to penalize the industrious while giving a windfall to the lazy, incompetent, or unmotivated. As in the instance of successive counsel, there should be “an evaluation of the contribution of the two independent sets of lawyers to the final result.” 423 F.2d at 1392 , 191 Ct.Cl. at 470 . There is no more reason in law or common experience to insist that simultaneous counsel, acting under separate contracts, are each entitled by law to 50% than to take that position (a stand we rejected in Sisseton) with respect to successive lawyers under separate agreements. Neither the Claims Commission Act nor the general rules applicable to attorneys’ fees requires, or suggests, that result.
II
In Part IV of its opinion, the court holds that, in any event, the Commission did not have substantial support in the evidence for the 70%-30% apportionment it made. I disagree.
A major basis for the Commission’s division was that counsel for the Oklahoma Miamis prepared all the exhibits on value, presented the plaintiffs’ expert testimony on value, and handled the cross-examination of defendant’s witnesses. The majority carp that Mr. Long, the plaintiffs’ witness, was not an expert on value because he did not testify as to “fair market value” or give figures, but he did present evidence “that the area of the subject tracts was very favorable for agriculture, that the land was fertile and attractive to settlers, and that the lands were in demand at a good price.” In my view, this clearly comprised “expert testimony on value" — the Commission’s words (emphasis added) — even though no precise figure on valuation was given. Evidence as to the nature, saleability and fertility of land is evidence bearing directly on “value”.
The court does not question the finding as to the cross-examination of defendant’s witnesses, or the introduction of the exhibits, but seems to say, on its own, that in these particular circumstances both sets of attorneys were entitled to equal credit. This is for the Commission to say. I cannot announce of my own knowledge or from common experience that, in all cases where separate sets of counsel appear for separate parties, both counsel always render equal service or always agree that, though one is to lead, his brother’s fee is not to be reduced. In this instance, it is obvious that the lawyers did not get together, apportion the work, or settle on the fee. In that situation, the Commission had no choice but to determine the relative value of the services as they were actually rendered in this specific case. This it did, obviously taking into account the fact that counsel for the Oklahoma Miamis bore the laboring oar as to the presentation of the Indians’ own case, the opposition to the Government’s defense, and the preparation of useful findings for the tribunal.
Moreover, the majority opinion omits the important factor that, as the Commission in effect found, 1 the Indiana Miamis’ counsel spent a large part of their effort in trying to advance the interests of the Indiana Miamis as against those of the Oklahoma Miamis. We held in Red Lake and Pembina Bands v. Turtle Mountain Band of Chippewa Indians (United States), 355 F.2d 936, 941 , 173 Ct.Cl. 928, 938 (1965):
Where the “claim in question” is joint or combined, it is not a service in prosecution of that common concern to advance a particular advantage of only one of the interested groups at the expense of the others. The services for which the attorneys are to be compensated out of the * * * recovery consist of efforts to create and preserve that fund, not of unsuccess *107 ful attempts to capture it for one entity. [Footnote omitted; emphasis supplied.]
The Commission’s findings here, together with the record, show that much of the services performed by the Indiana attorneys was not for the “common concern”. These appellants fail to recognize that the services required to entitle them to a fee out of the common fund are those relating to the impropriety of the original treaty cessions as that claim related to the Miami Tribe in existence at the treaty dates. At those times, 1828, 1837, 1838 and 1840, there was only one Miami Tribe and it is on behalf of that unitary tribe that recovery was sought and attained. Once that award is made, the common cause has been achieved and the statutory fee has been earned. Nevertheless, the Indiana lawyers made continued and persistent efforts to show the complete separation and autonomy of the two current tribes, so as to advance the Indiana Miamis’ claim to participate in the recovery. That is a service for the Indiana Miamis alone and should be minimized in determining counsel’s share of the entire fee. In apportioning the fee, the Commission was properly concerned with the type and extent of the services performed by each group of attorneys in terms of the relative contribution made for the benefit of the common concern, {. e. the recovery for the whole Miami Tribe.
The court emphasizes that the members of the Commission who passed upon the fees were not the same as those who sat at the trial in 1959. Personal or direct familiarity with the lawyers’ work seems to me a relatively unimportant factor. The Commission is a continuing body with a continuing staff and an institutional memory based on the full records and files of all the proceedings in this case — and also on its great and continuing participation in Indian claims litigation. At the time we remanded the Sisseton case for apportionment of fees, we sent that case back, in 1970, to a Commission which was wholly different in composition from the one existing in 1951-1952 when the earlier set of lawyers (Disney and Brown) appeared in those proceedings. But we called the Commission “uniquely fitted” to make the division, and we did so because it had all the files and records on which to base a judgment, and equally because it can sense better than we, because of its general and accumulating experience, what is helpful in a lawyer’s presentation of a case under the Indian Claims Commission Act and what is less useful, how much paper-filing is “busy work”, what proportion actually contributes to a favorable result, what goes to the heart of the case, and what focuses only on the extremities.
Ill
I concur with the court that the fee should not be divided on a per capita basis, and that appellants in No. 8-71 (the counsel for the Oklahoma Miamis) are not entitled to the entire fee. The correct result, in my view, would be to affirm the Commission in all respects. I am convinced that the proper standards were used and that the Commission’s decision was neither arbitrary nor capricious and was based on substantial evidence in the record as a whole.
LARAMORE, Senior Judge, and NICHOLS, Judge, join in the foregoing dissenting opinion.
. “The 19 exhibits introduced by Mr. Maloney concerned the relationship of his clients to the Miami Tribe as it existed on the treaty dates and other matters relating to a possible distribution of the prospective award.”