The opinion
JONES, Chief Judge.
I concur in the conclusion reached by the majority. However, 1 cannot subscribe to all that has been said about our power to review the Commission’s findings of fact. I agree that it is our duty as a reviewing tribunal to consider all the evidence in the record. If there is substantial evidence, when the record is considered as a whole, to support the Commission’s findings, we may not disturb those findings even though we might have reached a different conclusion were we considering the evidence in the first instance.
There is a distinction, a very real area of difference, between trial de novo and inquiry as to whether the findings below are supported by substantial evidence. The majority do not agree that they have come too close to the forbidden boundary of that area. But I cannot agree that the court has not gone beyond the simple question of whether there is substantial evidence to support the Commission’s findings.
In my judgment the Indian Claims Commission cannot be treated as a purely administrative agency. The wording of the statute creating it convinces me that the Congress intended to give it more of the attributes of a court than of an administrative agency. Its functions are essentially judicial. I feel also that the wording clearly shows that it was not intended that the Court of Claims should go into the whole question on a de novo basis if, after examining the entire record, it finds that there is substantial evidence to justify the conclusions which the Commission has reached.
For this reason, I do not think the principles so clearly enunciated in the Universal Camera case are entirely applicable to the Indian Claims Commission since that Commission has a somewhat different status from an administrative board, even though that board may be clothed with some judicial or quasi-judicial powers.
Congress made it very clear, however, that notwithstanding there might be substantial evidence to support the findings of the Indian Claims Commission, if, on examination of the entire record, the Court of Claims should conclude that in dealing with the Indians the transactions had not been on a fair and equitable basis, considering all the circumstances and the sense in which those expressions are used in the statute, we should invoke the provisions of clause (S). We would then have jurisdiction to allow recovery on the part of the Indians notwithstanding the record may show substantial evidence to support the findings of the Commission. Evidence which is substantial enough to preclude a reviewing body from upsetting a lower tribunal’s findings of fact may not be enough to convince a court of conscience that the things done were done fairly and honorably.
The court has reversed the Commission’s finding of value largely on evidence of which it has taken judicial notice, much of which apparently was not brought to the attention of the Commission. The case should be remanded for the Commission to consider the evidence now of record respecting lack of fair and honorable dealings after both parties have briefed and argued the question.
I conceive our function in reviewing conclusions based upon fair and honorable dealings to be quite different from our function in reviewing findings of fact in the ordinary sense. We sit on this phase of the case as a court of appeals in equity; in fact, our functions are larger even than that, for we, like the Commission, have cognizance of claims not heretofore recognized even in equity.
While I cannot join in holding that ordinary legal rules justify a decision that *426 there is no substantial evidence to support the Commission’s findings, I do not feel so limited in acting under the fair and honorable dealings provisions of the act.
On this basis I agree with the conclusion reached by the majority.