The opinion
JONES, Chief Judge
(dissenting in part).
I believe that the findings of the Indian Claims Commission are supported by substantial evidence, except as to claim five.
I would therefore affirm the findings and conclusions of the Commission, except as to claim five, and the possible recovery on claims three and four,' not on the basis of title to the lands, but under subdivision (5), section 2, of the Indian Claims Commission Act.
As to claims three and four I agree with the Commission that it is not established that the Pawnee Tribe of Indians actually occupied and exclusively used any definite portion of the lands claimed to a degree sufficient to warrant a finding of title.
It does seem that the Tribe had certain possessory hunting rights covering a considerable area. When the Tribe made their cessions under the Treaties of 1848 and 1857, they relied on the good faith of the Government in protecting these rights even though the area was not completely defined. The record indicates considerable doubt as to whether these possessory rights were properly protected after the time the cessions were made.
Subdivision (5) of section 2 of the Indian Claims Commission Act confers jurisdiction as to “claims based upon fair and honorable dealings that are not recognized by any existing rulé of law or equity.”
This is a broad provision and while it may be difficult, to place a value on these rights in an area not definitely defined, .yet they were valuable rights, and with such evidence as may be at hand or which may be produced these findings should be made. If these values are'in excess of the amounts paid, judgment should be rendered for the excess. This phase of the case was not covered by the Commission’s findings.
As to claim five, I think the record facts designate the 4,800-acre tract with sufficient clarity to definitely locate it. It should therefore be valued by the Commission, and if the value on the date of taking exceeded the $1.25 per acre paid by the United States, judgment rendered for claimant in the amount of such excess.
I would remand the case for these purposes, but would affirm the action of 'the Commission in all other respects.
However, as the case is to be remanded, the Commission may wish to reconsider the other claims in the light of the additional evidence, together with that already considered by it.