# Pawnee Indian Tribe of Oklahoma v. United States

> United States Court of Claims · February 3, 1953 · 109 F. Supp. 860

URL: https://www.frixlaw.com/law-library/cases/9678211

## Case

- **Full name:** Pawnee Indian Tribe of Oklahoma v. United States
- **Court:** United States Court of Claims
- **Decided:** February 3, 1953
- **Citations:** 109 F. Supp. 860; 124 Ct. Cl. 324
- **Precedential status:** Published
- **Opinion:** Concurrence by Whitaker
- **Judges:** Jones, Littleton, Whitaker, Madden, Howell
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678211

## Opinion text

WHITAKER, Judge
(concurring).
In the light of the additional evidence set out'or referred to in the majority opinion which was not considered by the Indian Claims Commission, I think the case should be remanded to it for further consideration.
The majority opinion calls attention to section 13(b) of the Indian Claims Commission Act requiring the Commission to set up an Investigation Division to investigate claims referred to it by the Commission, and to make the result of its findings available to the parties, and it says that this section should have been invoked in this case. This section does not require all claims to be referred to this Investigation Division. I take it that it is within the discretion of the Commission to refer a claim to it or not to do so. It is the primary duty of the parties to gather the evidence and present it to the Commission. If the Commission feels that the parties have been diligent and have apparently presented all available evidence to it, I see no necessity for the Commission to refer the claim to its Investigation Division. Apparently the Commission thought that had been done in this case.
However, it seems that considerable evidence was not presented to the Commission. Where this appears, or where the Commission has reason to doubt that all the evidence has been presented to it, it should either decline to decide the case until all the facts have been presented, or refer the case to its Investigation Division for inquiry and report. The latter course should be followed, I think, only where this is the only way to secure all the facts. It is the duty of the plaintiff to prove its case, and of the defendant to present any coun *912 tervailing testimony. They have no right to shift this burden to the Commission. Its investigating division is set up to act as a.n amicus curiae, not as a guardian ad litem for an infant or a non-compos mentis.
Certainly there. is no duty on an appellate tribunal to search through the dusty documents of the archives to uncover other documents not produced by the parties nor considered by the Commission. In the absence of a well-founded apprehension that all- the facts have not been produced and that justice cannot be done without further investigation, I. think an appellate tribunal should decide the case on the basis of the record made below.
If there is such a well-founded apprehension on oúr part, supported by substantial evidence called to our attention or discovered by us, the case should be remanded for further consideration by the Commission. I do not conceive it to be the duty of this court to make the exhaustive invéstigation .which the majority opinion indicates tlie court has made in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678211. Public record. Not legal advice.