The opinion
COWEN, Chief Judge
(dissenting):
Although I cannot join in a number of the observations made in his dissenting opinion, I am persuaded that Judge Skelton has accurately analy2ied the purpose and effect of the Act of 1880 and subsequent acts involved in this appeal and has correctly concluded that appellee’s right to recover is precluded by the judgments entered by this court in 1950 in the four cases (Nos. 45585, 46640, 47564, and 47566), Confederated Bands of Ute Indians v. United States, 117 Ct.Cl. 433 (1950).
I also agree with Judge Skelton that this court erred in remanding the case to the Indian Claims Commission to determine the intention of the parties in executing the stipulation on which the judgment in Case No. 46640 was based. If such a collateral attack on the judgment entered in that case were permissible, I would readily concur with the court’s holding that the proceedings before and the additional findings made by the Indian Claims Commission on remand, support the conclusion that the parties never intended that the stipulation included Royce Area 617. However, as clearly established by the authorities cited by Judge Skelton, the stipulation was the basis for the entry of a final judgment *378 which may not be re-opened or examined in such a collateral proceeding to ascer-’ tain the intent of the stipulating parties. Although our error — an error in which I participated — in remanding the case for that purpose is regrettable, it is not too late to acknowledge the error and to correct it.
I think it is much too late in the history of the Ute Indian litigation in this court to raise any doubt about the fact that the land, which is the subject of this appeal, was ceded to the United States by the Act of 1880. This court so found in each of its decisions discussed in Judge Skelton’s opinion and the Supreme Court so construed the Act in Confederated Bands of Ute Indians v. United States, 330 U.S. 169 , 67 S.Ct. 650 , 91 L.Ed. 823 (1947), wherein the Court stated:
There is not one word in that Act showing a congressional purpose to convey the Executive Order lands, or any other lands, to the Indians. On the contrary, the Act embodied a transaction whereby the Indians were the transferors and conveyed lands to the Government. For the value of lands so conveyed, and for no other, the Government was to make an account to the Indians after certain deductions had been made. [330 U.S. at р. 177, 67 S.Ct. at p. 654 ].
Moreover, the plaintiffs in the four suits (Nos. 45585, 46640, 47564, and 47566), filed pursuant to the Jurisdictional Act of June 28, 1938, 52 Stat. 1209 , alleged that the land had been ceded to the United States. For example, paragraph 5 of plaintiff’s petition in Case No. 46640 reads as follows:
By agreement of March 6, 1880, which was amended, ratified and confirmd by Act of Congress of June 15, 1880, c. 223, 21 Stat. 199 , 1 Kappler 180 (amended by Act of July 28, 1882, с. 357, 22 Stat. 178 , 1 Kappler 205), plaintiffs ceded to defendant a vast area of land in exchange for which defendant among other considerations agreed, after the allotment of certain lands to individual members of plaintiffs, to hold the balance of such lands in trust for cash entry (and not entry or settlement under the homestead laws), and to deposit the proceeds received from such sales, after certain stipulated payments, in the Treasury of the United States for the benefit of plaintiffs. The Agreement of March 6, 1880, as amended by the aforesaid Act of June 15, 1880, was ratified and approved by three-fourths of the adult male Indians of the Confederated Bands of Utes within the time limit fixed by Section 10 of said Act. 1
Furthermore, it is not open to question that the Jurisdictional Act of June 28, 1938, pursuant to which the four suits settled in 1950 were filed, was intended to confer jurisdiction on this court to hear, determine and render judgment on all remaining claims, legal and equitable, which the Indians then had against the United States, whether the claims arose under the Act of 1880 or subsequent acts. The first section of the Act provides as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred on the United States Court of Claims to hear, determine, and render final judgment on all legal and equitable claims of whatsoever nature which the Ute Indians or any tribe or band or any constitutent [sic] band thereof, may have against the United States, including, but without limiting the generality of the foregoing, claims arising under or growing out of any treaty or agreement of the United States, law of Congress, Executive order, or by reason of any lands taken from them, without compensation, or for the failure or refusal of the United States to protect the interest of any of said bands in lands (as to which any of said bands had the possessory right of use and occupancy), or be *379 cause of any mismanagement or wrongful handling of any of the funds, land, property, or business enterprises belonging to or held in trust for any of said bands by the United States, or any misfeasance or nonfeasance on the part of the United States with respect thereto, or otherwise.
I find nothing in the foregoing or elsewhere in the Act which suggests that the claim involved in this appeal was somehow reserved or excluded from the terms of the statute.
The Indian Claims Commission found that appellee is entitled to recover for the taking of 230,547.44 acres of land disposed of by defendant as free homesteads between 1899 and September 14, 1938, for interest due on the proceeds of the sales of appellee’s land, and for an accounting as to the use of such proceeds. 2
Plaintiff’s petition in Case No. 45585 (the first of the four suits brought pursuant to the Act of June 28, 1938, and settled in 1950) was filed November 22, 1941, and plaintiff’s petition in No. 46640 was filed October 15, 1945. Prior to the time these suits were filed in the Court of Claims the causes of action, upon which the Commission predicated defendant’s liability to the appellee, had accrued and could have been included in the four suits. Moreover, the allegations of plaintiff’s petition in Case No. 46640 were broad enough to include the claims for which the Commission held the defendant liable. In the amended petition filed in that case on March 19, 1947, plaintiffs alleged the following in paragraphs 6 and 7. 3
6. By decree of this Court in a suit brought by plaintiffs in 1909 (The Ute Indians v. The United States, No. 30360), pursuant to a jurisdictional act of March 3, 1909, c. 263, 35 Stat. 781 , 788, plaintiffs recovered judgment against defendant for the proceeds of certain sales and other disposals of the aforesaid lands up to June 30, 1910. No relief is sought with respect to such sales and dispositions in this action, but relief is sought with respect thereto in Case No. 47566, filed in this Court on December 30, 1946.
By Executive Orders of December 6, 1916 and September 27, 1924, defendant withdrew and set aside 64,560 other acres of the aforesaid lands as naval oil reserves which lands are the subject matter of Case No. 47564, filed in this Court on December 30, 1946, and no relief is sought therefor in this action.
By Agreement of May 10, 1911, amended, ratified and confirmed by Act of June 30, 1913 ( 38 Stat. 77 , 81-82), defendant conveyed 20,160 other acres of land subject to the aforesaid 1880 Agreement, together with other lands to the Weeminuche or Southern Ute Indians in partial exchange for lands from the then reservation of said Indians. Such lands are the subject of plaintiffs’ claim in Case No. 47565, filed in this Court on December 30, 1946, and no relief is sought therefor in this action.
Since June 30, 1910, and prior to June 28, 1938, defendant made other and further sales and disposals of certain of said lands, by sales thereof for cash, by homestead or other entries under the public land laws for less than the agreed minimum price per acre, by setting apart and reserving such lands as national reservations or for other public uses, or by otherwise classifying, reserving, or withdrawing such lands from entry and sale under the public land laws. Plaintiff is advised, believes, and therefore avers that defendant has not accounted to plaintiffs for such cash sales or paid plaintiffs the minimum per acre price for lands entered under the homestead laws in accordance with the Act of July 28, 1882 ( 22 Stat. 178 ) or otherwise, nor paid plaintiffs the value of such lands *380 set apart and reserved as national reservations or classified, reserved, or withdrawn from entry and sale under the public land laws. Defendant has never rendered to plaintiffs a true, complete and proper account with respect to said property of plaintiffs and said trust funds.
7. Wherefore plaintiffs pray that defendant make a full and true discovery and disclosure of acreage sold, homesteaded, or otherwise withdrawn for national reservations or for other public uses, or otherwise classified, reserved, or withdrawn from entry or sale under the Public Land Laws prior to June 28, 1938, and not heretofore paid for by defendant in connection with the suit by plaintiffs brought in 1909 as hereinabove paragraph 6 recited and not the subject of the actions pending in this Court which are referred to in paragraph 6 hereof; and that defendant be adjudged liable to plaintiffs for such sales and appropriations of lands in such amount as upon a complete and accurate accounting this court may find due and owing to the plaintiffs as reasonable and just compensation, but in no event less than the minimum price at which defendant has agreed to sell such lands.
All the judges of the court are agreed that the land now in issue was, in the language of the judgment entered in Case No. 46640, “land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 ( 21 Stat. 199 ), and by the defendant during the aforesaid periods of time * * * disposed of as free homesteads * * The preceding language of the stipulation — “the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but whether included therein or not” — is certainly sufficient to cover the land now in issue. Therefore, I see no way to avoid the conclusion that the final judgment entered in that case bars appellee’s right to recover. The fact that the plaintiffs or their counsel had an undisclosed or unexpressed intention to exclude the land in controversy from the stipulation does not alter the conclusive effect of the judgment entered. United States v. William Cramp & Sons Ship & Engine Bldg. Co., 206 U.S. 118, 128 , 27 S.Ct. 676 , 51 L.Ed. 983 (1907); NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 323 , 82 S.Ct. 344 , 7 L.Ed.2d 312 (1961); Utah Power & Light Co. v. United States, 42 F.2d 304 , 70 Ct.Cl. 391 (1930).
. See Vol. 960, Printed Records, Court of Claims Term 1949.
. 17 Ind.Cl.Comm. 28, findings 10, 11, 19 and 20.
. Plaintiff’s amended petition in No. 46640, The Confederated Bands of Ute, Indians v. United States, Printed Records Court of Claims Term 1949.