# Petition — Sioux Nation of Indians v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1087%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1016 ## Text we yan MICHAEL RODAK, JR., CLERK SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 No. 75-456 ‘ SIOUX NATION OF INDIANS; the SIOUX TRIBE OF THE ROSEBUD INDIAN RESERVATION, South Dakota; the SIOUX TRIBE OF THE STANDING ROCK INDIAN RESERVATION, North and South Dakota; the SIOUX TRIBE OF THE PINE RIDGE INDIAN RESERVATION, South Dakota; the SIOUX TRIBE OF THE CROW CREEK INDIAN RESERVATION, South Dakota; the SIO!NX TRIBE OF THE LOWER BRULE INDIAN RESERVA- TION, South Dakota; the SIOUX TRIBE OF THE CHEY- ENNE RIVER INDIAN RESERVATION, South Dakota; the SIOUX TRIBE OF THE SANTEE INDIAN RESER- VATION, Nebraska; and the SIOUX TRIBE OF THE FORT PECK INDIAN RESERVATION, Montana, each for itself’ and in a representative capacity on behalf of the SIOUX TRIBE or NATION, Petitioners, v. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS ARTHUR LAZARUS, JR. 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 Of Counsel: MARVIN J. SONOSKY HOWARD PAYNE 2030 M Street, N.W. aan Washington, D.C. 20036 September 22, 1975 Attorneys for Petitioners. Washington, O.C. + THIEL PRESS + (202) 638-4521 (2) Page TABLE OF CONTENTS mene CPEPe DEE occ ce ceeeeeececeeveannnecveades 2 ts. .oeccces OC CCS EN EROS AEES SME 2 ee ee ee ee 2 CE, po wa ec becesebceecnc cs 64bus 4 STATEMENT OF THE CASE .. ccc cccccccccsccces 5 Sb. ee I Ge PE OU ccc cence rss cceceen 6 i, ee eee ee eS, gg Coe ewes ececcene 8 Ey SU SE cece cee ha besneescuceceves 11 D. Proceedings before the Commission ............. 12 ee ee ae ae ee eae 15 REASONS FOR GRANTING THE WRIT I. The holding of the court below rejecting the Sioux Fifth Amendment claim on grounds of res judicata is wrong, and allowing that deci- sion to stand will perpetrate a grave miscarriage SP See tee Cl esha ee ae eee 6 86 Ok Oe 16 Ii. The court below should not have invoked res judicata to deny petitioners a decision on the merits of the Black Hills claim given the ambig- uity of its 1942 opinion, the failure of the United States to plead or prove res judicata as a defense, and the shameful course of the Government’s conduct towards the Sioux PE oc we ce ee ee sce seers eeeereseeceses 22 GUNES cos sc cece ese cas eeseerecseseoenes 25 App. APPENDICES Page Re ND 6 8666 6660S 666 eee ees se séenion l B. Excerpts from opinion of Indian Claims Pe rr ee eee ee ee 19 C. Excerpts from Treaty of April 29, 1868 and Act fg, I a a oa a ee 65 (it) App. Page D. War Department correspondence, November 1875 ....-- 70 E. Statement by the President, October 29, ee 73 TABLE OF AUTHORITIES — Cases: Carpenter v. Shaw, 280 U.S. 363 (1930).......--+++++: 23 Choate v. Trapp. 224 U.S. 665 (1912) ........+ ++ ees 23 Commissioner v. Sunnen, 333 U.S. 591 (1948) .........- 24 Confederated Salish and Kootenai Tribes v. United States, 193 Ct. Cl. 801, 437 F.2d 458 (1971) ........ 21 Heiser v. Woodruff, 327 U.S. 726 (1946) .......---++- 24 Kauffman v. Moss, 420 F.2d 1270 (3 Cir. 1970), cert. denied 400 U.S. 846 (1970)... ..-... 622s ees 23 Klamath and Modoc Tribes v. United States, 193 Ct. Cl. 670, 436 F.2d 1008 (1971) ....- 2-2 ese eee 22 | Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). . 15, 16, 17, 20 Northern Oil Co. v. Socony Mobil Oil Co., 368 F.2d 384 (2 Cir. 1966)... 0.2... ee eee eer erence 23 Seminole Nation v. United States, 316 U.S. 286 (BOER). ccccccccensccccsescccecesseresecee 23 Shoshone Tribe v. United States, 299 U.S. 476 (1987)... ccccccccccccccccccess sees 18 Sioux Nation of Indians v. United States, 33 Ind. Cl. Comm. 151 (1974)... 2.222 eee eee eee 2, 8, 9, 13 Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613 (1942) cert. denied 318 U.S. 789 (1943) AS EEA 8, 11, 12, 17, 18, 19, 20, 21, 22, 23 Sioux Tribe of Indians v. United States, 146 F. Supp. 229 (Ct. Cl. 1956), 182 Ct. Cl. 912 (1968) ......6- 12, 13 Sioux Tribe v. United States, 205 Ct. Cl. 148, 2 500 F.2d 458 (1974). 1... 2. ee ee ee eee eee eens 5, 12 (112) Cases, continued: Sioux Tribe v. United States, 2 Ind. Cl. Comm RSET IE OF EP ek Sire ne ir. rc arg ee eee Spilker v. Hankin, 188 F.2d 35 (D.C. Cir. 1951) ........ Three Affiliated Tribes of the Fort Berthold Reser- vation v. United States, 182 Ct. Cl. 543 (1968) ....... United States v. Creek Nation, 295 U.S. 103 (1935) United States v. International Bldg. Co., 345 U.S. 502 (1953) United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938) United States v. United States F. & G. Co., 309 CE SG ae alate ary ie eens Universal Constr. Co. v. Fort Lauderdale, 68 So.2d 366 (Fla. 1953) Winnebago Tribe of Indians v. United States, 100 Ct. Cl. 1 (1942) fl Me oe a Oo oe ee ee oe oe ee oe ae a ea a Tew enw Ce Rit 6.7 8S Cn 6 4 be 6 a we ae ee Se 2 2 ae £2 2 eo. 2 6.9 £89.98 BO 6.8 6 6 os. 6 aoe 26S Treaties and Statutes: Ret of Miavch 3, 1665 (0F Seat. FOB) ... ccc ccc ccsess Act of August 15, 1876 (19 Stat. 176)............. 10, Act of February 28, 1877 (19 Stat. 254) 4, 6, 8, 11, 12, 13, 15, 16, 17, 18, 20, Act of March 3, 1887 (24 Stat. 505) ................ Act of October 27, 1974 (Public Law 93-494, ee 60 Coad aus 64 bs CaS ore Reena 14, Indian Claims Commission Act of August 13, PE scones cuseeee vee dss 3, 5, 14, Sioux Jurisdictional Act of June 3, 1920 (41 Stat. 738)... 2, 3, 4, 11, 12, 15, 16, 18, 20, 21, 23, 24, Treaty of April 29, 1868 (15 Stat. 635) ee eeesocesecer 4,6, 7, 8, 9, 10, 11, ER een ccd Uleccedeuwieeukcoes Page (iv) Treaties and Statutes, continued: IN THE Mare SUPREME COURT OF THE UNITED STATES 28 U.S.C. §1255(1). 0... ee eee eee eee eee eens : a 28 U.S.C. §2101(c).. 1. ee ee ee ee eee eee creer rece? OCTOB No. Miscellaneous: 120 Cong. Rec. H.10579 (10/15/74) 2... ee ee ee ee ee eee 14 Federal and State Indian Reservations ......-++++++88° 5 Meriam, The Problem of Indian Administration ........--> 5 Moore’s Federal Practice. ......cccccccccccceceses 24 SIOUX NATION OF INDIANS, et ai., United States, Code Congressional and 14 Petitioners, Administrative News ......--+ eee e28 e228 e+ 000888 VU. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS The Sioux Nation of Indians and its eight constituent tribes* respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Claims, entered in this proceeding on June 25, * The Sioux Tribe of the Rosebud Indian Reservation, South Dakota; the Sioux Tribe of the Standing Rock Indian Reserva- tion, North and South Dakota; the Sioux Tribe of the Pine Ridge Indian Reservation, South Dakota; the Sioux Tribe of the Crow Creek Indian Reservation, South Dakota; the Sioux Tribe of the Lower Brule Indian Reservation, South Dakota; the Sioux Tribe of the Cheyenne River Indian Reservation, South Dakota; the Sioux Tribe of the Santee Indian Reservation, Nebraska; and the Sioux Tribe of the Fort Peck Indian Reservation, Montana. l 2 1975, which denies petitioners just compensation for the taking in 1877 of the Black Hills portion of the Great Sioux Reservation. OPINIONS BELOW The opinion of the Court of Claims, together with Judge Davis’ dissent, not yet reported, is reprinted in Appendix A hereto. The decision of the Indian Claims Commission, which the court below reversed in material part, appears at 33 Ind. Cl. Comm. 151 (1974), and relevant excerpts** are reprinted in Appendix B. JURISDICTION The judgment of the Court of Claims was entered on June 25, 1975. This Court has jurisdiction under 25 U.S.C. §70s (c) and 28 U.S.C. §1255 (1). In accordance with 28 U.S.C §2101 (c), this petition for a wnt of certiorari was due on or before Septernber 23, 1975, and thus has been timely filed. QUESTIONS PRESENTED Where, as is detailed in the Statement of the Case: (1) the United States in 1877 acquired the Black Hills portion (gold lands) of the Great Sioux Reservation without the consent of the Indians and under circum- stances which led the court below to comment that a “more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history***”’; (2) the Court of Claims in 1942—after petitioners had litigated almost 20 years under a 1920 special jurisdic- ** The Commission’s opinion runs 92 pages. The portion of the opinion dealing with valuation has been omitted since valuation © was not an issue in the Court of Claims. arn a 3 tional act to recover just compensation for the taking of the Black Hills—dismissed the Sioux suit with a 76-page opinion which does not state whether the judgment was entered on the merits or for lack of jurisdiction, but which employs language indicating that the dismissal was for lack of jurisdiction; (3) in 1974, almost 24 years after the Black Hills claim had been refiled by the Sioux pursuant to the Indian Claims Commission Act of August 13, 1946, the Commis- sion ruled that the United States had taken the land under the Fifth Amendment, that the defense of res judicata had been waived by the Government, that in any event the 1942 Court of Claims decision was not res judicata, and that the Sioux were entitled to judgment against the United States in the amount of $17.5 million, plus interest at 5% from 1877, but subject to the deduction of expenditures for food, rations and provisions furnished to the Sioux under a formula that President Ford subse- quently said would “leave the Sioux Indians with nothing”; and (4) in order to avoid injustice, and even though aware that such action could lead to a judgment on the Black Hills claim of “nearly $103 million,” Congress in 1974 passed, and President Ford approved, an amendment to the Indian Claims Commission Act declaring that food, rations and provisions no longer would be deemed payments on a claim; The questions presented in this case are: I. Whether petitioners’ suit for just compensation under the Fifth Amendment for the taking of the Black Hills gold country is barred as res judicata by the 1942 judgment of the Court of Claims dismissing the same claim filed under the 1920 Sioux special jurisdictional act. 4 II. Whether the ambiguous opinion of the Court of Claims in 1942 dismissing the Black Hills case for lack of jurisdiction, like doubtful expressions in treaties and statutes affecting Indians, should be liberally construed so as to preserve petitioners’ right to have their claim for just compensation considered on the merits. III. Whether the doctrine of res judicata should be applied in this case given the shameful course of respondent’s conduct towards the Sioux Nation and the failure of the United States to plead or prove res judicata as a defense. STATUT! § INVOLVED Articles 2, 11, 12 and 16 of the Treaty of April 29, 1868 (15 Stat. 635), and Articles 1, 2 and 5 of the so-called Agreement of September 26, 1876, embodied in the Act of February 28, 1877 (19 Stat. 254), which form the substantive basis for petitioners’ Fifth Amendment claim, are set out in Appendix C. The Sioux Jurisdictional Act of June 3, 1920 (41 Stat. 738), provided in material part: ***That all claims of whatsoever nature which the Sioux Tribe of Indians may have against the United States ***may be submitted to the Court of Claims with the right of appeal to the Supreme Court of the United States by either party, for determination of the amount, if any, due said tribe from the United States under any treaties, agree- ments, or laws of Congress, or for the misappropria- tion of any of the funds or lands of said tribe ***, or for the failure of the United States to pay said tribe any money or other property due; and jurisdiction is hereby conferred upon the Court of Claims *** to hear and determine all legal and 5 equitable claims, if any, of said tribe agai , ’ ’ nst the United Statgs, and to enter judgment rn Sec. 2. That if any claim or claims be submitted to said courts they shall settle the rights therein, a a _ equitable, of each and all the parties Section 2, clause 1, of the Act of Au , , gust 13, 1946 (60 Stat. 1049), 25 U.S.C. §70a (1), authorizes the Indian Claims Commission to hear and determine claims of any Indian tribe “in law or equity arising under the Constitu- tion, laws, treaties of the United States, and Executive orders of the President***.”’ STATEMENT OF THE CASE The Sioux Black Hills case is the largest, the most significant and the oldest Indian claim on record. Generation after generation of Sioux have waited for a fair and honorable judgment on the Black Hills claim as a sign of expiation by the Government for the terrible wrongs the Sioux have suffered.! Achievement of this central, overriding tribal goal is the key to the Sioux people making peace with their past, as well as progress in the present.” Indeed, to 60,000 Sioux today, particularly l . The Sioux are a once powerful Indi i i Si ‘ an nation which owned — 60 — acres in 1851, with title recognized by the United a e~ 974). - ae States, 205 Ct. CL 148, 500 F.2d , ' e eight tribes which constitute the Si ' — — - —| bow 2,350,000 acres scattered von aie . e State Indian Reservations 279 291, 433, 489, 492, 496, 498, 500 (G.P.O. 1975). ieiiad 8 0 - ec economy, unemployment on these reservations ranges rom a low of 23% (Lower Brule) to a high of 69% (Crow Creek) Id. at 281, 292, 434, 491, 493, 497, 499, 501. 2 As was observed in Meriam’s classic s ; 0 tudy, The Probi Indian Administration (Inst. for Govt. Research, 1928), at m4 [footnote continued | 6 the militants at Alcatraz and Wounded Knee, the pay- ment of just compensation by the United States for the taking of the Black Hills in violation of the 1868 Sioux Treaty is the litmus test for whether Indians ever can get justice in the white man’s courts. So far the United States has failed the test. In characterizing the course of conduct by which the United States acquired the Black Hills portion of the Great Sioux Reservation, the Court of Claims observed that “[a] more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history***.” (App. A, p. 6.) Nonetheless, on the theory that it had decided 33 years ago, whether “rightly or wrongly,” that the Sioux did not possess a F ifth Amendment claim under the Act of February 28, 1877 supra, the court below invoked the doctrine of res judicata and reversed an Indian Claims Commission order allowing interest as part of just compensation for the - Government’s taking. The error of the court’s holding, and the adverse impact of its narrow ruling upon current Federal-Indian relations, can be appreciated only in the context of the substantive merits of the Sioux Black Hills claim and, of course, the prior history of this litigation. A. The Treaty of April 29, 1868. Following the so-called Powder River War of 1866-67, the United States and the Sioux entered into the Treaty of April 29, 1868 (15 Stat. 635),°> under which inter alia: (1) the United States confirmed title in the Sioux Nation to the Great 805: “The benevolent desire of the United States government to educate and civilize the Indian cannot be realized with a tribe which has any considerable unsatisfied bona fide claim against the government.” 3 Material portions of the 1868 Treaty are reprinted in App- endix C. 7 Sioux Reservation embracing virtually all of the present State of South Dakota west of the Missouri River (Article 2); (2) the Sioux surrendered all rights to their country outside the Great Sioux Reservation, subject to Articles 11 and 16 of the Treaty (Article 2); (3) the United States promised the Sioux an off-reservation right to hunt on certain lands in Kansas and north of the North Platte River (Article 11); and (4) the United States recognized a Sioux right to continue to use, but not permanently to inhabit, an area about twice as large as the Great Sioux Reservation “north of the North Platte River and east of the summits of the Big Horn Mountains***,” ie. portions of Nebraska, Wyoming and Montana (Article 16). The United States made three further major commit- ments to the Sioux in the 1868 Treaty. First, the Government guaranteed that the Great Sioux Reservation was “set apart for the absolute and undisturbed use and occupation” of the Sioux (Article 2). Second, the Government agreed “that no persons except *** | Federal personnel] authorized to enter upon Indian reservations me shall ever be permitted to pass over, settle upon, or reside” on the reservation (Article 2). Third, the Govern- ment promised that no cession of all or any part of the Great Sioux Reservation would have any force or validity unless executed and signed by at least three-fourths of all the adult male Indians, occupying or interested in the same***” (Article 12). The Black Hills country of South Dakota lay in the western part of the Great Sioux Reservation, and was well known to be valuable for gold long before execution of the 1868 Treaty. (App. B, pp. 25-6.) For the Sioux, the Black Hills also possessed great religious significance. Petitioners’ claim, as more particularly described below is based upon respondent’s unilateral acquisition of the 8 Black Hills country under the Act of February 28, 1877, supra, in violation of the terms of the 1868 Treaty. B. The Act of February 28, 1877. In 1874, a military expedition headed by Lt. Col. George Armstrong Custer reported the presence of gold in paying quantities within the Black Hills. The widespcead publicity given Custer’s reports stimulated an invasion of the Great Sioux Reservation by substantial numbers of non-Indian gold- seekers. (App. A, p. 2.) Initially, the United States maintained troops on the reservation to enforce the treaty provision barring outsiders. The “gold fever” so increased during the winter of 1875, however, that the Commissioner of Indian Affairs succumbed to the politi- cal argument that occupancy of the Black Hills by non-Indians was inevitable, and that the United States should acquire the land from the Sioux. Pursuing this theme, the Commissioner brought a large Sioux delegation to Washington in May of 1875 to discuss the surrender of the Black Hills country as well as the extinguishment of the off-reservation rights the Sioux possessed under Articles 11 and 16 of the 1868 Treaty. In a meeting with the delegation on June 3, President Grant warned that, if the Sioux refused to sell, “the Government might not make strong efforts to keep them [the goldseekers] out.” (33 Ind. Cl. Comm. 151 at 251.) Two weeks later, the Government dispatched the so- called Allison Commission to negotiate with the Sioux for the right to occupy the Black Hills “for mining purposes.” Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613, 636-38 (Fdg. 11) (1942). The Allison Commission dickered with the Sioux throughout the month of September 1875 without 9 success.* Upon receiving word of the Commission's failure, President Grant in early November, with the concurrence of the Secretary of War and the Secretary of the Interior, decided that, although non-Indians still were forbidden from entering the Black Hills, the Army would be directed not to enforce the law. This order was kept secret in official Washington.° Simultaneous to its drastic change in military policy, the Grant Administration began to pressure Congress for legislative action that would force the Sioux to sell the Black Hills. Taking up an earlier suggestion by the Commissioner of Indian Affairs, the Secretary of the Interior strongly recommended that Congress, through use of the appropriation power, cut off food supplies (rations) for the Sioux unless the Indians agreed to a land cession. (33 Ind. Cl. Comm. 151 at 253-54.) Congress did not then put this cruel proposal into effect. Unable to move Congress, the Administration delibe- rately precipitated a crisis in relations with the Sioux. Specifically, on December 3, 1875, the Secretary of the Interior instructed the Government’s agents in Dakota and at Fort Peck, Montana, to notify the Sioux in the Yellowstone and Powder River country west of the Great 4 App. B, p. 27. Interestingly, the Sioux, “realizing the great value of the Black Hills to the United States,” offered to sell the land to the Government for $70 million, plus additional compen- sation for the gold already mined. 33 Ind. Cl. Comm. 151 at 252. 5 App. A, p. 2; App. B, p. 27. President Grant’s secret decision to leave the Great Sioux Reservation open to invasion in viola- tion of the 1868 Treaty is dramatically evidenced by contem- poraneous correspondence of the military authorities to which the Court of Claims gave judicial notice (App. A, p. 2). Copies of this correspondence are reproduced in Appendix D. The Army with- drew from the Black Hills about November 17, 1875, and miners thereafter flocked into the area in ever-increasing numbers. 33 Ind. Cl. Comm. 151 at 253. 10 Sioux Reservation that, unless they returned to the reser- vation by January 31, 1876, they would be declared “hostiles.”’ Hostile Indians, whether men, women or children, could be shot on sight. During the winter of 1875-76, the Sioux were hunting off the reservation with the permission of the Govern- ment’s agents, as they had a right to do under Article 16 of the 1868 Treaty. The severity of the winter made an immediate trek of several hundred miles back to the reservation by men, women and children physically impossible. The Secretary’s own messenger could not return until well after the January 31 deadline. Nonethe- less, on February 1, 1876, the Secretary of the Interior notified the Secretary of War that the order to return had not been followed, and that the Sioux were being turned over to the Army for appropriate military action. (App. A, p. 3; App. B, pp. 27-8.) Custer was searching for Sioux “‘hostiles” when he met his famous defeat at Little Big Horn on June 25, 1876. As soon as the news of the battle reached Washington on July 5, during the centennial celebration of this Nation’s independence, Congress became so incensed that it attached what the Sioux call the “sell or starve” rider to the Indian Appropriations Act of August 15, 1876 (19 Stat. 176, 192). Under this rider, the Sioux were to receive no further rations until they ceded the Black Hills to the United States and surrendered all rights outside the Great Sioux Reservation. Since most of the Sioux already had been dismounted and disarmed, and were confined to the reservation, they could not hunt. Congress thus gave the Sioux the infamous option to “sell or starve.” (App. B, p. 28.) Armed with Congressional authorization for his con- duct, President Grant appointed yet another commission 11 to negotiate with the Sioux. Despite the ultimatum contained va 4 mao Appropriations Act, the commis- sion proved unable to extract the signatures of m 10% of the adult male Sioux, including 18-year pa cession agreement—far less than the 75% approval for a land sale required under Article 12 of the 1868 Treaty. (Ibid.) Nonetheless, in the Act of February 28, 1877 (19 Stat. 254), Congress unilaterally effected the acquisition by the United States of the Black Hills, comprising 7,345,157 acres, and “abrogated” all off-reservation rights possessed by the Sioux under Articles 11 and 16 of the 1868 Treaty. (App. B, pp. 25,28; App. C, pp. 67-8.) The Sioux Black Hills claim stems from th that the’1877 Act constituted a Fifth hasinlinass dion of petitioners’ property. . C. Prior proceedings. During the years after 1877, the Sioux repeatedly sought permission from Congress to present the Black Hills claim to an impartial tribunal. The doors of the Court of Claims initially were closed to petitioners (as well as to other Indian tribes) because the jurisdiction of that court did not extend to “any claim against the government *** dependent on any treaty stipulation entered into *** with the Indian tribes.’ Finally, a special statute, enacted in 1920, granted the Sioux permission to bring suit in the Court of Claims. (See text, pp. 4-5, supra.) The Sioux filed 13 cases under the 1920 Act, covering a total of 18 claims. The court below dismissed all 13 cases between 1938 and 1949. The Black Hills case involving the claim at bar, was dismissed in 1942, shout 19 years after the suit first had been instituted. Sioux 6 Act of March 3, 1863 (12 Stat. 765); section 1 of th Tucker Act of March 3, 1887 (24 Stat. a” “ ' 12 Tribe v. United States, 97 Ct. Cl. 613 (1942), cert. denied 318 U.S. 789 (1943). The central question presented vy this petition is whether the 1942 dismissal was on the ground that the 1920 Act so limited the court’s jurisdic- tion as to preclude consideration of a Fifth Amendment taking case like the Black Hills claim, or whether, in 1942, the court assumed jurisdiction, adjudicated the claim on the merits and dismissed on the ground that there was no Fifth Amendment taking. . ceedings before the Commission. On August 15, dis Gate * ae aa refiled the Black Hills claim in the newly created Indian Claims Commission. o~ years later, the Commission dismissed the suit on the ground that the petitioners had failed to prove their case. Sioux Tribe v. United States, 2 Ind. Cl. Comm. tn (1954). On appeal, the Court of Claims first affirme (Sioux Tribe of Indians v. United States, 146 F.Supp. 229 (Ct. Cl. 1956)), but on motion of the Sioux, through" new counsel, subsequently vacated its judgment of affirmance and remanded the case to the Commission for a full and complete hearing on the merits. (182 Ct. Cl. 912-13.) On November 19, 1958, only two weeks = the remand, the Commission ordered the case reopene and also announced that it would reconsider its previous decision. See Sioux Tribe v. United States, 205 Ct. Cl. 148, 500 F.2d 458, 476-77 (1974). On November 4, 1960, the Sioux filed an amended petition which reiterated the allegation that the Act of February 28, 1877, supra, constituted a taking of — land and rights for which just compensation was payab e under the Fifth Amendment, and which otherwise clarified the legal and factual basis for this cause = action. (App. B, p. 30.) Almost six years later, the Government filed its answer, which had been due under 13 the Commission’s rules within 60 days after the amended petition was filed. During the intervening six years, the United States, in January 1961, first unsuccessfully petitioned the Court of Claims for a writ of mandamus seeking to upset the Commission’s actions upon remand (182 Ct. Cl. 912-13), next unsuccessfully moved the Commission in June 1961 to dismiss, and, following four years of silence, finally moved for a clarification of the record that the Commission furnished on May 25, 1966. A month thereafter, the Government belatedly filed its answer to the amended petition. Significantly, neither in its amended answer nor in its mandamus petition, motion to dismiss and request for clarification did the United States ever raise the defense of res judicata. Following submission of the amended answer, the pace of litigation before the Commission materially quickened. After a full trial in 1969-70 and while the issue of valuation was still sub judice, the Commission ordered oral argument on a series of questions, including whether the Sioux Fifth Amendment claim was barred by the 1942 decision of the Court of Claims.’ Within two months, the Commission rendered its decision (App. B, pp. 19-64), holding so far as here pertinent: (1) that the Sioux Black Hills land and minerals, including gold removed prior to the 1877 Act, had a fair market value on February 28, 1877, of $17.5 million (33 Ind. Cl. Comm. 151 at 362-63); (2) that by the Act of February 28, 1877, supra, the United States took petitioners’ property for which just compensation was due under the Fifth Amendment (App. B, pp. 50-2); and (3) that the ” Order entered December 7, 1973. At the oral argument of December 18, 1973, the Sioux expressly reserved their right to assert that “the issue of res judicata has never been affirmatively raised as a defense by the defendant.” (Transcript of argument (Inst. 76), pp. 3-4.) 14 United States had waived the defense of res judicata and that, even if there had been no waiver, the Court of Claims dismissed in 1942 for lack of jurisdiction and not on the merits of the Sioux Fifth Amendment claim (App. B, pp. 29-44). The Commission also ruled that the United States was entitled to a credit for food, rations and provisions furnished to the Sioux pursuant to the 1877 Act. (App. B, pp. 52-6.) In direct response to the Commission's ruling, Congress amended section 2 of the Indian Claims Commission Act—the only substantive change in that law since its passage on August 13, 1946—to provide that “expenditures for food, rations, or rovisions shall not be dcemed payments on the claim.’ In so amending the Act, which under the Commission’s offset formula would have wiped out substantially all of petitioners’ interlocu- tory award, Congress was well aware that its action might result in a judgment on the Black Hills claim “in the amount of approximately $100 million.” (120 Cong. Rec. at H.10579-80 (daily ed. October 15, 1974).) When he signed Public Law 93-494, President Ford also stated that, while the Black Hills claim, with interest, could amount to nearly $103 million, “if such a claim is held to be valid, it would be unfair and unjust to try to avoid paying 1t by deducting the cost of previously supplied food and provisions.” 8 act of October 27, 1974 (Public Law 93-494, 88 Stat. 1499); see also S. Rept. No. 93-863 on S. 3007, printed in United States Code Congressional and Administratwe News, 93d Cong., Od Sess., at pp. 6111-15 (1974), and Conf. Rept. No. 93-1446 on S. 3007, id. at 6118-19. 9 The complete text of the President’s statement upon sign- ing S. 3007 is reproduced in Appendix E. 15 E. Proceedings below. The Government’s appeal to the Court of Claims was limited to the proposition that the Sioux Fifth Amendment claim is barred by res judicata, or, in the alternative, that the 1877 Act did not effect a Fifth Amendment taking of the Black Hills. Following enactment of Public Law 93-494, the Government, in essence, conceded its underlying liability on the claim and, as the court below noted, directed its appeal entirely to contesting the payment of interest. (App. A, p. 2.) On June 25, 1975—99 years to the day after Custer’s defeat—the Court of Claims reversed the allowance of interest as part of just compensation on the ground of res judicata, and otherwise affirmed the Commission’s deci- sion. In so ruling, the court below adopted a “lenient” attitude towards the Government’s “explanation of its pleadings” and concluded that, although the issue of res judicata had not been expressly pleaded, the United States had shown through argument that it did not intend to waive that affirmative defense.'° (App. A, pp. 6-7.) The Court of Claims further concluded that its 1942 opinion was res judicata on the question of a Fifth Amendment taking, since the Sioux “claim for a taking was well within the [1920] jurisdictional act” and had been rejected by the 1942 court on the strength of Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). (App. A, p. 8.) In view of this holding, the court below did not consider petitioners’ Fifth Amendment claim on the merits. 10 Respondent not only did not plead the defense of res judi- cata, but also did not attempt to litigate the issue. The Sioux thus were never afforded an opportunity to make a record on the point. The court below took judicial notice, sub silentio, of its 1942 opinion, but the pleadings, briefs and records in the 1942 case were not part of the record before the Commission and, therefore, were not before the court below on appeal. 16 Davis dissented, pointing out that the Court of ann 1942 amente Gaal it had jurisdiction to decide whether there had been a “taking” of the Black Hills, but no jurisdiction to determine whether the compensation paid by the Government under the 1877 Act was “just” (App. A, p. 18). Judge Davis then observed: I am not persuaded that in 1942 the Indians had the i to present their Fifth Amendment a * “aad which deemed itself fully empowered to decide all aspects of that demand on their merits. (Jbid.) REASONS FOR GRANTING THE WRIT I. OF THE COURT BELOW REJECTING = oe cree AMENDMENT CLAIM ON GROUNDS OF RES JUDICATA IS WRONG, AND ALLOWING THAT DECISION TO STAND WILL PERPETUATE A GRAVE MISCARRIAGE OF JUSTICE. The validity of the Government’s res —— depends upon whether the Court of Claims in 19 2 dismissed petitioners’ suit, filed under the 1920 Sioux special jurisdictional act, on the merits because it did not consider the Black Hills claim to be a Fifth Amendment taking case, or whether the court dismissed because the 1920 Act, in its view, did not authorize it to look behind the 1877 Act to ascertain whether a taking had occurred. The court below held that its 1942 opinion was on the merits, asserting that “suit could not [there] be main- tained as for a taking because the facts brought the case under the line of Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) * * * [which] held that it was not a taking if the Congress, exercising its plenary power over Indian tribe~, 17 took their land without their consent and substituted for it something conceived by Congress to be an equivalent.” (App. A, p. 8.) An analysis of the decisions shows, though, that the court below incorrectly restated what this Court held in Lone Wolf and, more significantly, misconstrued its own 1942 ruling in Sioux Tribe v. United States, supra. Lone Wolf v. Hitchcock, supra, was an action to enjoin the Secretary of the Interior from disposing of tribal land under a 1900 Kiowa-Comanche statute on the ground that Congress possessed no legal power to divest the tribe of title unless three-quarters of the adult males agreed to the land cession, as required under the provisions of a treaty comparable to Article 12 of the 1868 Sioux Treaty. This Court held the statute constitutional as an exercise of Congress’ plenary power over Indian land, including the power to abrogate treaties. In so ruling, the Court declared that, since “Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which promoted the enactment of this legislation” (187 U.S. at 568), or determine whether the consideration paid was fair. Contrary to the opinion below, this Court in Lone Wolf did not pass upon whether the Kiowa-Comanche statute gave rise to a claim for just compensation under the Fifth Amendment. That question was not before the Court.!! The Court of Claims in 1942 cited Lone Wolf for the proposition that the 1877 Act under which the United 'l “If injury was occasioned * * * by the use made by Con- gress of its power, relief must be sought by an appeal to that body for redress, and not to the courts.” 187 U.S. at 568. In 1942, of course, neither the Court of Claims nor any other court had general jurisdiction to hear and determine Indian tribal claims. See text, p. 11, supra. 18 States acquired the Black Hills was constitutional and thus, standing alone, could not serve as the basis for a “legal” claim under the 1920 Act. (97 Ct. Cl. at 668.) In this manner, the court below distinguished such cases as Shoshone Tribe v. United States, 299 U.S. 476 (1937), and United States v. Creek Nation, 295 U.S. 103 (1935), where this Court allowed just compensation under the Fifth Amendment for the loss of tribal lands.'* The 1942 Court of Claims noted that, unlike the 1877 Sioux Act which provided for rations, these cases disclosed an “arbitrary taking”, effected through executive action later ratified, “without payment or the assumption of an obligation to pay any compensation * * *.” (/d. at 667.) In short, Shoshone and Creek presented no problem about inquiring into the motives of Congress or ascertain- ing the adequacy of the consideration promised because the Government had there evidenced no intent to pay any compensation. 12 97 Ct. Cl. at 673. In Shoshone, the military wrongfully moved one Indian tribe onto the treaty reservation of another tribe; this tort was converted into a taking when Congress ratified the wrongful course of conduct by actions supporting the second tribe on the reservation. 299 U.S. at 495-97. In Creek, a Federal agent erroneously surveyed the reservation line to exclude tribal land; the error was confirmed and a taking effected when the lands were disposed of by the Government through patents issued by its authorized officers. 295 U.S. 110, 111. The Court of Claims in 1942 also distinguished United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938), on the ground that the legislative history of an amendment to the Klamath jurisdictional act, enacted after the court below dismissed for lack of jurisdiction, established that Congress intended the tribal claim- ant to recover for a Fifth Amendment taking. 97 Ct. Cl. at 675-79. Significantly, in its 1942 decision the court below exam- ined the legislative history of the 1920 Sioux jurisdictional act to demonstrate that Congress was not made aware of any Fifth Amendment claim when that statute was under consideration. /d. at 685-89. 19 Contrary to the 1975 view of the court below (App. A, P- 8), the 1942 Court of Claims did not believe that possible inquiry into whether the Sioux possessed a Fifth Amendment claim stopped at the point where it deter- mined that the 1877 Act was constitutional. Rather the 1942 court pointed out that, although in transactions between private parties, one party cannot fix the terms or consideration and force the other party to accept them, this rule “does not follow in dealings between the Government and Indian Tribes so as to enable the Indians to question in a legal praceeding the policy, wisdom, or authority of Congress, unless Congress has clearly granted to the Indians the right to do so.”’ (97 Ct. Cl. at 681-82; emphasis added.) Again in a key passage of its opinion, the 1942 court declared, after stating the general rule that determining just compensation in Fifth Amendment taking cases is a judicial function: But before this general rule is applicable to Indian cases, consideration must be given to the question of policy and the extent of the plenary authority of Congress to legislate in such a way as it deems proper with reference to the management and control of the property and affairs of the Indian tribes and the extent to which consent to be sued has been granted, as well as to the circumstances and conditions under which an implied contract will arise under the Fifth Amendment. The facts must show not only that there has been a “taking” or “misappropriation” by the Government of land or property of the tribe under such circumstances as give rise to an implication of a promise or undertaking to make “just compensation” ***, but that Congress has, by the jurisdictional act, which speaks only of legal claims, opened up the question of the fairness of what was done or of the adequacy 20 of the consideration paid, and has authorized the court to determine, adjudicate, and render judgment accordingly. (97 Ct. Cl. at 683-84, emphasis added.) In other words, the 1942 Court of Claims recognized that, even where Congress validly has exercised its plenary power over Indian lands, a Fifth Amendment claim might result, but the Court would have no jurisdiction over such a claim unless the jurisdictional statute authorized inquiry into “the fairness of what was done or of the adequacy of the consideration paid” and the court found the compensation not to be “just”. (See App. A, p. 18, dissenting opinion of Judge Davis.) The question of compensation “‘if injury was occasioned” by the exercise of Congress’ plenary power, of course, was the question left open in Lone Wolf. (187 U.S. at 568, quoted in 97 Ct. Cl. at 673.) Consistent with the foregoing analysis, the 1942 court examined into the scope of the 1920 Sioux special jurisdictional act. At the outset the court observed that “(t]he facts and circumstances narrow the legal issue between the parties to the question whether * * * the plaintiff tribe has any legal and enforceable claim within the meaning of section 1 of the jurisdictional act upon which the court has authority to inquire into the wisdom of the policy pursued by the Government * * * and the adequacy of the consideration assumed and paid by defendant for the property acquired.” (97 Ct. Cl. at 658.) The court then noted that its jurisdiction “must be found within the terms of the jurisdictional act” (97 Ct. Cl. at 663), and that “[s] pecial jurisdictional acts are strictly construed and clear grant of authority must be found in the act.” (Jd. at 664.) Thereafter the court repeatedly declared that the 1920 Act did not empower it to go behind the 1877 Act and to inquire into either the 21 motives or the wisdom of Congress in approving the legislation or the adequacy of the consideration promised to be paid for the taking of petitioners’ lands. (See, e.g., id. at 668, 670, 682 and 685.) This ruling as to the narrow scope of the 1920 Act led the 1942 Court of Claims ineluctably to the conclusion that it possessed no au thority to determine whether the Sioux were entitled to just compensation under the Fifth Amendment and, therefore, to dismissal of the Black Hills claim for lack of jurisdiction. For these reasons, the court below in 1975 plainly was wrong in characterizing its 1942 decision as a judgment on the merits and in applying the doctrine of res judicata to petitioners’ claim for just compensation. The fact remains, however, that the 1942 decision deprived the Sioux of their day in court initially, and that the erroneous 1975 decision, if allowed to stand, will deprive the Sioux of their day in court for all time. For this Court to refuse to intervene, and in effect to give finality to that denial of a full and fair hearing on the substantive merits of the Sioux Black Hills claim, would perpetuate a grave miscarriage of justice. The inequity worked by the holding of the court below is all the more poignant because, absent res judicata, the Sioux clearly would prevail on the merits of their claim for just compensation in this case. Under the Act of February 28, 1877, supra, “the Government * * * acquired the [Sioux] property outright.” (97 Ct. Cl. at 681.) Even under the Court of Claims’ “good faith” test for denying Fifth Amendment protection to tribal land,!® as distinct from all other private property, such 1S App. A, p. 9; see Three Affiliated Tribes of the Fort Bert- hold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d 686 (1968); Confederated Salish and Kootenai Tribes v. United States, 193 Ct. Cl. 801, 805, 437 F.2d 458, 459-60 (1971). 22 action would constitute a taking. First, the “good faith”’ test does not apply where, as here, the United States acquired Indian land for its own account. Klamath and Modoc Tribes v. United States, 193 Ct. Cl. 670, 689 n. 25, 436 F.2d 1008, 1017-18 n. 25 (1971). More important, in acquiring the Black Hills, the Government plainly did not act in “good faith”. (App. A, p. 6;App. B, p. 52.) THE COURT BELOW SHOULD NOT HAVE INVOKED RES JUDICATA TO DENY PETITIONERS A DECISION ON THE MERITS OF THE BLACK HILLS CLAIM GIVEN THE AMBIGUITY OF ITS 1942 OPINION, THE FAILURE OF THE UNITED STATES TO PLEAD OR PROVE RES JUDICATA AS A DEFENSE, AND THE SHAMEFUL COURSE OF THE GOVERNMENT’S CONDUCT TO- WARDS THE SIOUX NATION. The 1942 opinion of the Court of Claims in Stoux Tribe v. United States, supra, is not a model of clarity. To the court below in 1975, “in 1942 this court did, rightly or wrongly, hold on the merits, in a cause it had jurisdiction of, that the Sioux did not have a valid claim against the United States on account of the taking of the Black Hills * * *.” (App. A, p. 14.) Less than five months after its 1942 ruling issued, on the other hand, the court below cited Sioux Tribe for the principle that, “in the absence of express Congressional authorization this Court has not the power to determine whether or not just compensation was paid” for a taking of tribal land. Winnebago Tribe of Indians v. United States, 100 a. Cl. 1, 6 (1942). As Judge Davis commented in dissent, [i]t is not easy to apply the general principles of former adjudication to this court’s decision in 97 Ct. >» ee (App. A, p. 14.) 23 As a general rule, if there is a reasonable doubt concerning what was decided by a prior judgment, that doubt must be resolved against the party claiming the estoppel. Kauffman v. Moss, 420 F.2d 1270, 1274 (3 Cir. 1970), cert. denied, 400 U.S. 846 (1970); Northern Oil Co. v. Socony Mobil Oil Co., 368 F.2d 384, 388 (2 Cir. 1966); see United States v. International Bldg. Co., 345 U.S. 502, 506 (1953). This rule is particularly pertinent where, as here, the United States is asserting a debatable res judicata defense against an Indian tribe in relation to which “‘it has charged itself with moral obligations of the highest responsibility and trust.” Seminole Nation v. United States, 316 U.S. 286, 297 (1942). Indeed, as necessary incidents of “the Government’s fiduciary obli- gation” (ibid), this Court repeatedly has declared that laws affecting Indians “should be liberally construed” for their benefit (Choate v. Trapp, 224 U.S. 665, 675 (1912)), and that “[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protec- tion and good faith.” Carpenter v. Shaw, 280 U.S. 363, 367 (1930). The court below seriously erred in neglecting to apply the same liberal standards to construction of its ambiguous 1942 opinion.!* The court below also should not have invoked res judicata to deny the Sioux a decision on the merits of the Black Hills claim in view of the Government's persistent failure to plead or prove that affirmative defense. (See Statement, pp. 13 and 15, n.10, supra.) The doctrine of 14 The Court of Claims’ strict construction of the 1920 Sioux special jurisdictional act (97 Ct. Cl. at 664) and its equally strict application of the doctrine of res judicata (App. A, pp. 13-14) are in sharp contrast to its “lenient” approach to the Government’s “ambiguous” pleading allegations (id. at 7). 24 res judicata is judicial in origin, and is based upon a public policy that litigation must come to some end. Commissioner v. Sunnen, 333 U.S. 591, 597 (1948); Heiser v. Woodruff, 327 U.S. 726, 733 (1946). In this case, though, the Government’s withholding of its res judicata defense for a period of over 15 years following the Court of Claims’ remand in 1958 (see Statement, p. 15, supra) resulted in the Sioux’ actually litigating their claim under the Fifth Amendment to an interlocutory decision by the Commission. Moreover, on appeal the United States conceded its underlying liability to pay fair market value for the Black Hills land and minerals. (See Statement, p. 15, supra.) The court below, therefore, was not in a position to effect an economy in judicial time, to protect either party from litigating the same cause twice or otherwise to implement any public policy which has led the courts to promulgate the doctrine of res judicata. Absent a valid policy reason for so ruling, the court. below clearly erred in ignoring the Government’s waiver and in applying res judicata to the Sioux claim merely to save the United States the expense of paying interest as part of just compensation. Finally, assuming, arguendo, that the 1942 Court of Claims did have jurisdiction over the Sioux Fifth Amend- ment claim under the 1920 Act, the doctrine of res judicata is not to be slavishly followed where its application will violate an overriding public policy or result in manifest injustice to a party. See United States v. United States F.&G. Co., 309 U.S. 506, 513-14 (1940); Spilker v. Hankin, 188 F.2d 35, 38-9 (D.C. Cir. 1951); Universal Constr. Co. v. Fort Lauderdale, 68 So.2d 366, 369 (Fla. 1953); 1B Moore’s Federal Practice, 4. 0.405[11] (1974). The Sioux claim easily fits this exception to the general rule. The course of action by 25 which the United States acquired the Black Hills from the Sioux—characterized by the court below as probably the most “ripe and rank case of dishonorable deal- ings * * * to be found in our history” (App. A, p. 6)—is shocking to the conscience. In deference to the public policy expressed in the Indian Claims Commission Act that the ancient wrongs done to Indians be settled for all time, and in order to avoid a manifest injustice to the Sioux Nation after so many years of frustrating litigation, the Court of Claims should not have invoked res judicata again to deny petitioners a decision on the substantive merits of the Black Hills claim. CONCLUSION The Government has conceded, as the court below held, that it is liable to petitioners herein under section 2, clause 3 (“unconscionable consideration”) or clause 5 (violation of “fair and honorable dealings”) of the Indian Claims Commission Act. What really is at stake in this case, therefore, is the remaining $85 million of just compensation due for a taking under the Fifth Amend- ment and, realistically, the immediate destiny of 60,000 Sioux Indians. An award of $103 million, which amounts to about $1700 for each Sioux man, woman and child, would not constitute an inconsiderable sum for a people whose unemployment rate ranges from 23 to 69 per cent (see p. 5, n. 1, supra) and whose median family income by all known tests falls far below the poverty line. Without meaning to sound melodramatic, counsel can state 15 Even the court below conceded that, if the Sioux could file suit today under the 1920 jurisdictional act, “‘whether * * * the same result would have been reached is far from obvious * * *.”’ App. A, p. 9. 26 unhesitatingly that, after a 100-year wait, an award of only $17.5 million for the cherished Black Hills, which works out to less than $300 per capita, will be thought of by the Sioux as yet another breach of faith by white institutions. Instead of settling an old grievance, this case will become a new grievance, while the long and painful transition of the Sioux from a buffalo hunting culture to ' a place in modern society will be set back a few more generations. The Black Hills claim is important—a still living part of our nation’s history. Justice and honor require that the Sioux not be told that their case has reached its end without review by the highest court of the land. The petition should be granted. Respectfully submitted, ARTHUR LAZARUS, JR. 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 MARVIN J. SONOSKY 2030 M Street, N.W. Washington, D.C. 20036 Of Counsel: WILLIAM HOWARD PAYNE Attorneys for Petitioners. APPENDIX A Gn the United States Court of Glaims Appeal No. 16-74 ~ Ind. Cl. Comm. Docket No. 74-B (Decided June 25, 1975) THE UNITED STATES OF AMERICA THE SIOUX NATION OF INDIANS, ET AL. arertrene Craig A. Decker, with whom was Assista ’ nt Att General Wallace H. Johnson, for ania icine f ie — Jr., attorney of record for the Pine Ridge Marvin J. Sonosky, attorney of record f : ky, or the Rosebud Sioux Tribe, Standing Rock Sioux Tribe, Crow Creek Sioux “ribe, Lower Brule Sioux Tribe and Santee Sioux Tribe. William Howard Payne, attorney of record for the Cheyenne River Sioux Tribe ani the Si Reservation, Montana. loux of the Fort Peck Before Cowen, Chief Judge, Durrex, Senior J dge,D Sxerton, Nicnots, Kunzta, and Bawnerr, pit oan ON APPEAL FROM THE INDIAN CLAIMS COMMISSION N ICHOLS, Judge, delivered the opinion of the court : This appeal of the Indian Claims Commission’s interlocu- tory order of February 15, 1974, raises essentially the ques- tion whether by the Act of February 28, 1877, 19 Stat. 254 and otherwise, the United States took the Sioux Nation’s property in the Black Hills, North Dakota, by the power of l 2 eminent domain, or by a course of unfair and dishonorable dealing not amounting to a constitutional taking. In the former case interest is awardable as a part of just compen- sation and that is the answer of the Commission. In the latter it is not, and that is ours. Appellant admitted on oral argu- ment it was only here to contest the interest. The following colloquy occurred : Judge Davis: * * * The difference really is, whether the Tribes will be entitled to interest on whatever the valuation is? The Commission came up with Gov't. Atty.: 17 million dollars Judge Davis: Now, originally you were able to take it to wipe out the whole 17 million but now you're no longer able to do that ¢ v’t Atty.: Not on unconscionable consideration. Judge Davis: But now the whole difference is interest, whether they get paid the interest / Gov't Atty.: That's all we're arguing about. The opinion below, 3B Ind. Cl. Comm. lol, reveals the facts giving rise to the instant claim. By the Treaty of April 29, 1868, 15 Stat. 635, 636, the United States confirmed in the Sioux Nation recognized title to all of the present South Dakota We-t of the Missouri River, and it agreed to keep unauthorized persons out. The Black Hills portion. acquired in 1877, contained 7.545,157 acres. In 1874 an ex- ploration led by Lieutenant Colonel Custer discovered gold in this area. A large nuinber of prospectors and miners there- after entered it without consent of the Indians or other warrant of law. and pressure began to build to open the Black Hills to white settlement. At first the Army was stationed to keep the intruders out, but by motion of appellee, and without objection by appellant, we take judicial notice of certain documents which show that President Grant on November 3. 1875, secretly ordered the Army to make no further resistance to the miners going in. At the same time, he decided not to rescind orders theretofore issued forbidding them to occupy the Black Hills country, but in the absence of enforcement. this was ineffectual. The dependence «f the Sioux on Government rations was relied on to prevent their making trouble. The Government now decided to acquire the Black Ifills from the Sioux. sending a Commission to negotiate. but it 3 failed to reach agreement. In December 1875. the Government ordered all Sioux back to their reservation by January 21: 1876, or be treated as hostile. Those outside were hunting ond could not return in time; nevertheless the Army was sent to commence military operations against them. The famous de- feat of Custer occurred on June 25, 1876. Incensed by this Congress attached a rider to the Appropriation Act of Au- cust 15, 1876, cutting off the Sioux rations until they ceded the Black ILills. Since they could not hunt, until they yielded they would starve. ii Pie Commission was unable nevertheless to get more than 10° of adult male Sioux to agree to cession. This was fatal to a legal acquisition by agreement, since Article XII of the ISGS Treaty provided that no cession of any part of the reservation should be valid unless three-fourths consented Congress by Act of February 28, 1877, 19 Stat. 254 re- solved the impasse by enacting into law the unratified agree- ment of September 26, 1876, This yielded up the disputed terricory, Tt ineluded provisions respecting a contemplated removal to Indian Territory, not here relevant. It undertook to educate the Sioux and gave them a right to specified rations until able to support themselves. They had to remain im- poverished to continue to enjoy the rations, a condition it seenis they have satisfied down to the present day. There were also provisions for land allotments on the parts of the reser- vation not ceded. Besides valuing the yielded land as of February 28. 1877 at $17.100.000, the Commission determined that the sum of $450,000 would compensate for the gold removed by ininers before the taking date. ) _ The instant claim has had a long history and. as an occa- sion for lawyers’ work and effort. a distinguished one. For yf expr has been so far unrewarding. We consider it here to the extent necessary ; : 7b beth ary to evaluate appellant’s res By Act of June 3, 1920, 41 Stat. 738, the Congress pro- vided a special jurisdiction for this court to adjudicate ap- pellees’ claims. It enacted : we ty i That all claims of whatsoever nature which the wre Tribe of Indians may have against the United States may be submitted to the Court of eS bart AVAILABLE el LM 4 Claims * * * for determination of the amount, if any. due said tribe from the United States under any treaties, agreements. or laws of Congress, or for the misappro- priation of any of the funds or for land= of said tribe * * * or for the failure of the United States to ay said tribe any money or other property due; and jurisdiction is hereby conferred upon the Court of Claims * * * to hear and determine all legal and equi- table claims, if any, of said tribe against the United States, and to enter judgment thereon. Sec. 2. That if any claim or claims be submitted to said courts they shall settle the rights therein, both legal and equitable, of each and all the parties thereto, * * * The instant claim was presented as one among thirteen. and was dealt with, in a reported decision atmost twenty-two vears later. Siour Tribe of Indians v. United States. 97 Ct. Cl. 613 (1942). cert. denied, 318 U.S. 789 (1943). Whether this decision was on the merits, and thus res judicata of the claim, or any portion thereof. or whether it merely held the court had no jurisdiction, is the somewhat bizarre question the parties have debated, below and here. and which we must now decide. All the rest of the claims were also dismissed for one reason or another. After passage of the Indian Claims Commission Act, 25 U.S.C. $70 and ff.. in 1946 the then counsel for the Tribe in 1950 resubmitted the Biack Hills claim. The theory then was unconscionable consideration and dishonorable dealings under & 70a (3) and (5). It was assumed then that the 1942 decision did net bar these claims by res judicata or collateral estoppel decause claims under paragraphs (3) and (5) were new causes of action that were moral in nature and not insticiable under the Special Jurisdictional Act of 1920. De- fendant, however, stated in its answer that recovery was denied in the 1942 decision “for want of jurisdiction.” Even if defendant had not altered its construction, obviously we wonld not take the parties’ pleadings as binding us as to the meaning of our own reported decision. The Commission entered an order of dismissal and this court published an affirming opinion, 146 F. Supp. 229 (1956). The main reason for the position was that the consideration was not proven unconscionable hecause the Indians had persisted in trying to prove the value of the property taken from them by an improper method. The Indians by their then counsel ad- 5 lvitted they had been paid more than the value of the property on the taking date. The lidians at this point retained new counsel who ob- tained an order vacating our judgment of affirmance, for the Cor ninission to reopen the proofs, and to reconsider its former decision if it saw fit to do so. 182 Ct. Cl. 912 (pub. in 1968). The Commission did reopen the proofs and did receive a quantity of new evidence. In 1961 we denied a petition by the Government for mandamus to prevent the Commission allowing the Indians to file an amended petition and for other extraordinary relief. See, Sioux Tribe v. United States, 205 Ct. Cl. 148, 500 F. 2d 458 (1974). | Since the 1956 decision was withdrawn. we do not now treat it as determinative of anything. | The new decision of the Commission at 33 Ind. Cl. Comm. 151 (1974) is predicated on a theory of a taking by eminent domain, and the Commission would award interest as part of just compensation both for the land and for the pre-taking removal of gold by the miners. The Commission order con- templates a return of the case to it after our review for deter- inination of offsets. but Congress later that vear enacted in Pub. L.. 95-494, 88 Stat. 1499, that there would not be anv offsets for food. rations. or provisions. There are said to have heen in contemplation not many other offsets. The Indians we hope are now near the end of the long and weary trail. but how much they realize on the claim turns wholly or almost wholly on the interest question, as it will be obvious. that interest over almost 100 years would many times exceed the principal. If we disagree with the Commission as to its taking theory the findings would justify liability under § 70a ( 5). The want of fair and honorable dealings seem ob- vious and this theory will support the award for pre-taking gold removal as well, since under this clause. with an obliga- Hen fo protect once assumed. injuries inflicted by third parties are compensable. Aleut Community v. United States. 202 Ct. Cl. 182. 480 F. 2d 831 (1973) : Lipan Apache Tribe v. T/nited States, 180 Ct. Cl. 487 (1967). In United States v. The Goshute Tribe. 206 Ct. C1. (1975). (App. No. 6-74. slip op, 3/17/75). we consider the basis of a dishonorable dealing“award under the Act. If the dealings were dishonorable, wé held an award under clause 6 (5) to be allowable even though the C ommmission might have made an award under some other sections also. As ws a pointed out, resort to that section simplifies things by av “ ling the necessity to measure whether consideration was sep able. As the Congress does not want the rations to be use ~ offsets, a fortiori they should not come into the or wT ) measuring the conscionability of consideration. a a measurement had to be made, obviously, we think, the va “ of the expectations of rations in 1877 would be the value ,- : considered, and it would be impossible to determine t = value, antecedently considered, because the Indians won r terminate their right to rations whenever they became bs - perous. No one in 1877 could have foreseen that the s _ would always be poor, as the Commission right! V says. ot impossibility of measurement makes “unconscionable consid- eration” inapt as a basis for liability. ean We mention this court’s requirement for a — " 4 tionship” in Goshute, if dishonorable dealings Via . is is found. We say “Such a ‘special relationship arises ~ - United States officials tender a Treaty to Indians for a i sion.” (Slip op. p. 4). A Treaty was tendered the Sioux for adhesion in 1876. However. breach of the obligation to tect the Indians’ lands from unwanted intruders, as prom- ised in the 1868 Treaty. reneged on another special pag ship. The duplicity of President Grant’s course an . a duress practiced on the starving Sioux, speak for a “ A more ripe and rank case of dishonorable clea oe w never, in al! probability, be found in our history, which is we : taken a¢ a whole, the disgrace it now pleases some persons to ~ Ghe Cnnntedests taking theory founders on the bar of res judicata. As if doubtful of its reading of the a the Commission strained to find an abandonment of this - fense by the Government. Defendant did say in its pleadings that we held we had no jurisdiction in 1942. but explains : meant we had no jurisdiction of claims that were oe not legal. Until after the remand by this court. the oe was actively prosecuted on the new moral grounds crea ¢ by the 1946 Act. The Government shows it gave clear — that it relied on res judicata as to any matters properly “ fore the 1942 court. After 1969, when it was clear the Indians 7 relied on a taking theory, the defendant debated the theory in full reliance on the 1942 case. We think the Commissior should have accepted the Government explanation of its pleadings, as do we. When it came to write its decision it was well aware the 1942 decision had not been stipulated out of the case. Our policy, and the Commission’s. has been to be lenient with the Indians as to whether their original petition allegations, filed before the jurisdictional cutoff, stated the claim on which they were ultimately to recover. It will not do, in cases under the same Act, to trap the Government in pleading allegations that were at best. ambiguous. It must be a rare thing for a court to write findings and an opinion totalling 76 pages in length, all just to say it has no jurisdiction. This is, however. the Commission’s position as to our 1942 decision. Indeed. the Commission really imputes a gross impropriety to this court in making a whole series of positive pronouncements on the legal rights of the parties— in a case over which it holds it has no jurisdiction ! The best refutation would be to'set forth the opinion at least. in toto, but we cannot on such a seale reprint material already avail- able. in face of our over-large printing bills. It is no longer possible to follow the old practice of making such extensive quotes from prior opinions, as used to be usual. In this in- stance the opinion to be quoted also contains numerous long quotes from opinions still earlier which of course are all also directly available. Therefore we assume the interested reader will obtain our 1942 opinion. We set forth the rationale of that opinion, as we understand it, and next take up the specific passages that are alleged to reveal an admission of no jurisdiction. The 1942 court, as we read it, analyzed the claim as moral rather than legal. The opinion starts out by saying the claim is for alleged taking for public purposes, or misappropria- tion, by defendant. The suit was specifically for just com- pensation, with interest, for an alleged taking, but the Gov- ernment Acts relied on did not amount to an exercise of eminent domain in the court’s view. The jurisdictional act did not authorize suit on moral claims. All it did was to remove statute of limitation bars, and bars against suits by Indian tribes, on previously existing rights. 8 The suit could not be maintained as for a taking because the facts brought the case under the line of Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) and not under the line of Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937) ; 304 U.S. 111 (1938). The former case held that it was not a taking if the Congress, exercising its plenary power over Indian tribes, took their land without their consent and substituted for it something conceived by Congress to be an equivalent. Then it would be presumed that Congress acted in good faith for the Indians’ best interests. The Court would inquire into neither the motives of Congress nor the suf~ ficiency of the intended consideration, as to which Congress was the sole judge. The Shoshone line was explained as cases where the Indian land was taken and turned over to others without any real or purported equivalent. Thus it was perfectly correct to say this court held it had no jurisdiction of “unconscionable consideretion” and “dis- honorable dealing” claims, these being moral and therefore outside the scope of the jurisdictional act. It is not correct to say it held it had no jurisdiction of the taking claim. The Act was broad enough to open the court to any legal claim, but it had to be a legal claim existing independent of the availability of a forum open to suit, for the jurisdictional act neither created nor enlarged pre-existing legal rights. The claim for a taking was well wituin the jurisdictional act, but the proofs, it was held, showed no taking. It would not have mattered if the jurisdictional act had been broader, so far as the taking claim was concerned. There was just no valid taking claim, whether a tribunal was provided for its enforcement or not. It is necessary to understand that the right to just com- pensation jn case of an eminent domain taking is conceived by the caurt to exist independently of whether the sovereign has provided any forum in which it can be sued. In further explanation of the 1942 decision, it should be said that while refusing to determine the adequacy of the compensation proffered by the Government for the land, tie court was manifestly impressed by the found fact that the expenditure for rations for the Sioux had already reached the ; 9 figure of $45,000,000, a substantial sum in those days. This court, too, in considering the moral claims in the withdrawn 1956 decision, deemed the consideration for the land more than adequate. It never apparently occurred to the court either time that the rations were to compensate, not for the land, but for prior destruction of the Indians’ mode of sub- sistence, as found by the Congress in enacting Pub. L, 93-494, supra, U.S. Code, Cong. & Ad. News, 93d Cong. 2d Sess. 6112- 6115 (Senate Rep.) A few years ago this court, in an effort to synthesize the Lone Wolf v. Hitchcock and the Shoshone lines of cases, suggested that in cases of purported exercise of trusteeship control over Indian affairs, and purported substi- tution of one property right for another, the test to bring a case into the Lone Wolf line is whether Congress made a “good faith effort” to ascertain and obtain for the Indians the value of the land. Three Affiliated Tribes of the Fort Lertheld Reservation v. United States, 182 Ct. Cl. 543, 553, 390 F. 2d 686, 691 (1968). In our 1942 decision this test is not articulated, and whether if it had been the same result would have been reached is far from obvious, but need not be and is not considered here, since, as will appear. the bar of res judicata is not lifted if a later court disagrees with a prior one. We now consider the passages in the 1942 decision relied on by the Commission to establish that this court held it had no jurisdiction even of the taking claim. The first quotation at 33 Ind. Cl. Comm. 199, is from the court’s introductory statement at p. 616. It is twisted by the Commission into an admeasurement of our jurisdiction. This quotation from the 1942 opinion says the question is: * * * whether, as a matter of law, the plaintiff tribe has a legal or equitable claim under section 1 of the Juris- dictional Act * * * This was not intended as a discussion of the scope of the Act referred to. The court does this elsewhere and shows that in its opinion the special Jurisdictional Act created no new rights but granted jurisdiction of any legal claim that ex- isted previously, and only wanted a tribunal in which the United States consented to be sued. It cannot therefore mean. as the Commission apparently would have it. that section 1 10 of the Jurisdictional Act is to be looked to as somehow the source of the claim. The court said at p. 666 : jurisdicti t so far at bar the jurisdictional act, excep as re a the competency of the ae — ace = weet aed edie am the limitation on our general jurisdi whe j the statute of limitation, 259, title 28, U.S.C., as well as t A wy bare apes d no new right or claim in favor ribe not pr oon within the limits of our general jurisdic ie. °*** The second, 33 Ind. Cl. Comm. 199, is from p. 658 of the ane the legal issue i tances narrow the legal 1s: ° Phe en nen * * * the plaintiff tribe has legal and enforceable claim * * * upon which the po Be authority to inquire into the wisdom of the od reued by the Government, * * * and the ade- nso 7 the consideration assumed * * * [Emphasis added by ICC.] is passage is taken out of context and read with the con- pay means that once the taking claim is eliminated, all a then remains is whether the court can pursue eT a inquiries in enforcement of a moral claim. It —— | 2 with the taking claim based on a violation of property right: by treaty. “on at 33 Ind. Cl. Comm. 200, from the 1942 opin- ion, at 657-58, is representative but misunderstood. It is worth setting forth in full: f r other property rights of plaintiff were Where or ror ba boy the Tinited States te —. tion of the treaty of 1868, and contrary to the au : “ ty which Congress poceeages — the ne i th on erni i of the parties, Wi 1 of tan bry od Aes fe under such circumstances as to give rise to an implied contract to pay just oe pensation for the property taken comenennaes ‘ with the misappropriation or taking. plaintiff 0 7 = to recover. But if, under the circumstances dise yo s the record. Congress acted within the limits of its “_" “" ity under the law and the treaty in acquiring the -_ and hunting rights for which it mace compensation. } plaintiff is not in our opinion entitled under the — ‘ the jurisdictional act to recover. [Emphasis added hy IcC.] This considers both alternatives. If plaintiffs can prove a taking claim, they can recover. But if Congress acted within its legal rights, they cannot. This shows clearly that the special jurisdictional act covered the taking claim, as we now hold. The quote at 33 Ind. Cl. Comm. 201 explains the jurisdic- tional act just as we have above, i.e., that it created no new legal right but only removed the bar on the Indians suing. The first quote at 33 Ind. Cl. Comm. 202 agrees with our analysis, saying that in light of established legal principles the plaintiffs cannot recover as for a taking. The Commission's second quote on that page is from p. 667 of the court opinion. The court said that the 1868 treaty and the 1877 act are not laws giving a valid foundation to the claim. From this the Commission draws the staggering non sequitur that the court believed it had no jurisdiction to hear a claim based on violation of rights the Sioux possessed under the Constitution. Of course, the Fifth Amendment, the part of the Constitution involved, protects property rights made valid by some other law. The Commission cannot think the Fifth Amendment created the property rights it shelters, and surely would not be surprised to learn there were property rights before there was a Fifth Amendment, we are sure. In its quote from the court opinion, p. 668, at 33 Ind. C1. Comm. 204 the Commission confuses the jurisdiction of the court with the Indians’ “legal right to complain”, concepts the court carefully separated, and also confuses the right of the court to pass upon the justness and fairness of what Congress did, i.e., the moral claims, with its right to adjudicate the taking claim, which the court had and exercised. The series of quotes at 33 Ind. Cl. Comm. 206, 207, need not be analyzed in detail. They all are consistent with our view that the court considered it had jurisdiction of a taking claim, but the Indians failed to prove a taking claim, and that it had no jurisdiction of moral claims, which were all the Indians proved. if they proved anything. The Commission refers to Winnebago Tribe of Indians v. United States, 100 Ct. Cl. 1 (1942), as confirming its under- standing of the Sioux case. It follows the latter case and we think the Commission has misunderstood it in the same way. 12 See also discussion of the 1942 case in Siowx Tribe v. United States, 105 Ct. Cl. 725, 776-78 (1946), 64 F. Supp. 312, on pet. for cert. judgment vacated, 329 U.S. 685 (1947) reciting over three pages the court’s handling of the taking claim in the 1942 case, and nowhere thinking to mention the court refused to take jurisdiction of that claim. Chairman Kuykendall, dissenting, points to the withdrawn decision, Sioux Tribe v. United States, 146 F. Supp. 229, 939 (1956), wherein this court, then comprised of four of the judges who sat on the 1942 case, and one other, held that Category (2) claims under the Indian Claims Commission Act, 25 U.S.C. §70a could not be brought by the Sioux because adjudicated unfavorably to them in the 1942 decision. This gives perhaps cumulative support to a conclusion more comfortably based on other grounds. It is elementary that in Indian Clainfs Commission Act proceedings a former decision on the merits by a court having jurisdiction is a res judicata bar to further litigation of the same claim. United States v. Southern Ute Tribe, 402 U.S. 159 (1971) ; Assiniboine Indian Tribe v. United States, 1928 Ct. Cl. 617, 121 F. Supp. 906, cert. denied. 348 U.S. 863 (1954). Res judicata was defined in Cromwell v. County of Sac, 94 U.S. 351, 352-3 (1876), in the following terms by Mr. Justice Field: In considering the operation of this judgment. it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a har or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same par- ties upon a different claim or cause of action. In the fotmer case, the judgment, if rendered upon the merits. constitutes an absolute bar to a subsequent action. /¢ © o Rady @ & Ge te @ nee Sn hon concluding parties and those in privity with them, nof only as to every matter which rras offered and received * to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus. for example. a judgment rend- ered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it. although it be subsequently alleged that perfect defences actually existed, of which no proof was offered. such as foreerv. want of consideration. or payment. Tf such 13 defences were not presented in the acti : action, and estab- lished by competent evidence, the subsequent Tension of their existence is of no le j zal consequence. ' - ment is as conclusive, so far as future od! cg: law are concerned, as thong] existed. ‘ gh the defen The language, therefore, which is on often eae, that a judgment estops not only as to every ground of re- covery or defence actually presented in the action, but also as to every ground which might have be presented 18s strictly accurate, when applied te tie dant or claim in controversy. Such demand or claim, havi into judgment, cannot again be brought into litigation between the parties i preens ae Best les In proceedings at law upon any _ But where the second action betw 15 upon a different claim or eel ie ohenon ye the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the deter- mination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to ly the estoppel of a judgment rendered upon one cause of action fo matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in ee igi- oe —, hoe: ya might have been thus litigated ermined. Only u i ment conclusive in I ao ag ey ow The difference in the operation of a jud i hae! aoe cases mentioned is pode ‘aan h all - d adjudications t i (Ranphiesds cpetieah upon the doctrine of estoppel. This classic comparison of rcs judi i ris judicata (same claim) and col lateral estoppel (different claims) still provides a oe = definition of res judicata. Lawlor vy. National Screen ervice Corp., 349 U.S. 322, 326 n. 6 (1955) ; United States Moser, 266 U.S. 236, 241 (1924). ices ‘ Although hard, the doctrine that even erroneous decisions have res judicata effect is ancient in American law and of highest authority. See, Williams v. Armroyd, 11 U.S. (7 Cranch) 423, 432-33 (opinion by Chief Justice Marshall) ¢ ete : a v. Meyer, 311 U.S. 457, 462 ( 1940) ; Chicot ounty Drainage District v. Baxter St 371, 373-76 (1940). miipeetnesanes Nor do any escape hatches appear. Unlike Lawlor, supra, there is no conduct by the parties subsequent to 1942 to create a new cause of action. And unlike Oerlikon Machine Tool 14 Works Buehrle & Co. v. United States, 121 Ct. Cl. 616, 102 F. Supp. 417 (1952), vacated on other grounds, 138 Ct. Cl. 457, 151 F. Supp. 332 (1957), all of the necessary facts were pleaded in the original suit. Since in 1942 this court did, rightly or wrongly, hold on the merits. in a cause it had jurisdiction of, that the Sioux did not have a valid claim against the United States on account of the taking of Black Hills, and since it also held it had no jurisdiction of moral claims relating to the same matter, an since in waiving other defenses the Congress did not waive res judicata defenses in the Indian Claims Commission Act. the Sioux are now restricted to moral claims under categoric- (3) and (5) of Sec. 70a, on which interest cannot he awarded as part of just compensation. The Congress which wiped out the rations offset could correct this situation al, but we are without the power to do so. On the ground of dishonorable dealings under category (5). the record made supports the Commission’s Order except as to interest, brit including the pre-taking removal of gold by miners. The canse is remanded for further proceedings consistent with this opingon Rate IN AFFIRMED IN PART, PART AND REMANDED Davis, Judge. dissenting in part: eae Soe I disagree with the court’s holding that the decision in 97 Ct. Cl. 618 (1942), cert. denied. 318 US. 789 (1945), is 7es ad judicata of the Fifth Amendment taking claim now pre- sented by the Sioux Nation.’ _ It is not easy to apply the general principles of former adjudication to this court’s decision in 97 Ct. Cl., and both sides can readily cite different parts of cag Nm nn r to support the respective positions. The key. as I s it. is that he 1949 court oean an Indian Fifth Amend- ment claim into two distinct parts—the first being whether there was any “taking” or “misappropriation” at all, and the other being the amount of compensation to be paid by the Government for the “taking.” The court thought it had 1I concur in the court's other rulings. including that the United States is not precluded from raising the defense of res judicata. 15 power, under the normal jurisdictional act, to determine he former issue but, in considering whether the constitutional measure of “just compensation” had been paid for the “tak- ing”, the court felt that it had no competence to weigh or take account of the consideration given the Indians by the United States unless the special jurisdictional act so provided in ex- plicit terms—which in this instance it did not. On this view. the court refused to assess at all the money or value given by the Government in exchange for the Black Hills. It would hot decide. because it believed it could not, whether or not this consideration amounted to “just compensation.” The rule we apply today is quite different. In Indian Fifth Amendment cases, we now take account of, and assess, the consideration given by the United States in deciding whether “just compensation” has been given. Three Affiliated Tribes of the Fort Rerthold Reservution y. United States. 182 Ct. Cl. o£}, 390 F. 2d 686 (1968): Alamath and Modoc Tribes vy. usted States, 19% Ct. Cl. 670, 689 n. 25, 436 F. 2d 1008, 1017 ne 2a. cert. de nied, 404A US. 950 (1971) : Con federated Salish aud Kootenai Tribes v- United States. 193 Ct. Cl. 801. 805. IT FP. 2d 458, 459-60 (1971). For purposes of res judicata, the formal issue thus becomes whether this is simply a change. since 1942, in the substantive law of just compensation for Indians or whether it is attributable to a liberalized view of the authority given the courts by the jurisdictional statutes consenting to suit against the United States on Indian Fifth Amendment claims. This is a difficult question to answer but I prefer the latter response—the so-called “jurisdictional” response *—mainly hecanse. in my view. that is the stance taken. on the whole, hy the 1942 court. The opinion repeatedly ties its refusal to assess or weigh the consideration (given by the United States) directly to the particular jurisdictional act. Sce 97 Ct. Cl. at 616 (this forms part of the court’s opinion, as is made clear by the foreword, on the same page. to the findings 7 If the 1942 decision was based on a lack of jurisdiction in this court, under the then special jurisdictional act. to take account of the consideration trans- ferred by the Government. res judicata ts inapplicable because, in that case, the earlier court would have felt precluded by a lack of jurisdiction from delving into one of the significant elements of the Fifth Amendment claim. See A.L.L, Restatement of the Law Second Judgments, Tent. Draft No. 1, § 48.1 (1) (9), § 61.2(1) (e), pp. 45, 123, 127-130 (1973). 16 of fact), 657-58, G58, 666, 668, 670, 6S1, 651-82, 682-83, 683, 685. The court also spends some time emphasizing the strict construction to be given to special jurisdictional statutes. Sce 97 Ct. Cl. at 663-65, 682. Implicit in the whole opinion seemis to be the notion that, except where consent to suit is given without qualification for suits against Government corpora- tions (97 Ct. Cl. at 664-65), there is both a general presump- tion against suability of the United States, and also a spe- cial presumption against opening up, for judicial serutiny, Indian claims challenging a congressional policy deemed at the time to be for the welfare of the Indians (97 Ct. Cl. at 665). The court’s position was that “when Congress has desired to open up [the latter type of] claims * * ba it has used language clearly indicating that purpose” (/bid.). This symbiotic relationship between the terms of the juris- dictional act and the court's right to inquire into the extent and adequacy of the consideration is brought ont, I think, by two sections toward the close of the 1942 opinion. Tn one the court says (97 Ct. Cl. at 681-82) : Plaintiff's position in substance is that one party to a proposed transaction cannot legally fix the terms or con- sideration and force the other party to accept them, This is true in transactions between private parties dealing at arm’s length and on terms of equal authority, but this legal proposition does not follow in dealings between the Government and Indian Tribes so as to enable the In- dians to question in a legal proceeding the policy. wis- dom, or authority of Congress, unless Congress hus clearly granted to the Indians the right to do so. [em- phasis added] In our opinion this has not hwen done for “the [jurisdictional] act grants a special privilege to the ‘plaintiffs and is to be strictly construed and may not by implication be extended to cases not plainly within - terms”—[citing cases]. To hold otherwise, it would be necessary for us to go back of the acts of August 15, 1876, and February 28. 1877, and — into the policy as ae as the judgment and wisdom of Congress. whie \ prompted it to act as it did and, therefore, adjudicate and render judgment either for or against the Indians on a moral claim. We cannot find that authority in the jurisdictional act. The second excerpt reads as follows (97 Ct. Cl. at 683-84) : In reaching this conclusion we have kept in mind the principle of eo that while the government always has 17 the right to tuke or appropriate any private property for a public use, if it does so, without claim of title and with- out compensation, there arises an implied contract under the Fifth Amendment, and, therefore, a legal claim for just compensation. * * * But before this general rule is applicable to Indian cases, consideration must be given to the question of policy and the extent of the plenary authority of Congress to legislate in such a way as it deems proper with reference to the management and con- trol of the property and affairs of the Indian tribes and the extent to which consent to be sued has been granted [emphasis added], as well as to the circumstances and alilens under which an implied contract will arise under the Fifth Amendment, The facts must show not only that there has been a “taking” or “misappropria- tion” by the Government of land or property of the tribe under such circumstances as will give rise to an implica- tion of a promise or undertaking to make “just compen- sation” [citing cases] but that Congress has, by the jurisdictional act, which s 8 only of legal claims, opened up the question of the fairness of what was or of the adequacy of the consideration paid, and has authorized the court to determine, adjudicate, and render judgment accordingly [emphasis added]. True, the opinion speaks, in the first of these excerpts, of “a moral claim.” But this seems to me to be because the court automatically equates claims which cannot be vindi- cated under the jurisdictional act—because that act should not be read as authorizing an inquiry into fairness of con- sideration—as necessarily “moral” claims. That does not mean that, in the court’s eyes, these claims would fail under the Fifth Amendment if full consent had been given. The latter part of the second excerpt clearly separates the issue of a Fifth Amendment “taking” from that of an inquiry into fairness—and requires that Congress authorize Joth aspects. “The facts must show not only that there has been a ‘taking’ or ‘misappropriation’ by the Government of land or prop- erty of the tribe under such circumstances as will give rise to an implication of a promise or undertaking to make ‘just compensation’ [citing case], but that Congress has, by the jurisdictional act, which speaks only of legal claims, opened up the question of the fairness of what was done or of the adequacy of the consideration paid, and has authorized the court to determine, adjudicate, and render judgment accord- 18 ingly” [emphasis added]. A separate, special authorization in the jurisdictional act to go into the fairness of the com- pensation seems to be required, The court, in a word, thouglit it had the jurisdiction to decide whether there had been a “taking” but no jurisdiction to determine whether the con- pensation paid by the (jovernment was “just.” * In the end, the best 1 can make of the 1942 opinion is that the terms of the jurisdictional act were so entangled in the court’s mind with its ultimate determination adverse to the Indians on the Fifth Amendment claim that the Government should fail in its current defense of ves judicata. The “juri-- dictional” component seems to me to have been too large factor in the 1942 holding to preclude the Nation from i- right to show now that the acquisition of the Black Ill was a Fifth Amendment taking, without just and adequate compensation, rather than merely a violation of fair and honorable dealings. I am not persuaded that in 1942 the Indians had the opportunity to present their Fifth Amend- ment claim to a tribunal which deemed itself fully empowered to decide a!l aspects of that demand on their merits.’ 3 The same theme seems to be reflected at the beginning of the opinion wheu the court sars (97 Ct. Cl. at 657-58) : “If the lands or other property right of plaintiff were misappropriated or taken by the United States in violation of the treaty of 1568. and contrar) to the authority which Congress possexsed under the treaty and the law governing the rights of the parties, without the payment of com penaation therefor and under each circumstances ae to give rise to an implied contract to pay just ~ompenantion for the property taken contemporancously with the mise ppropriation or taking, plaintiff is entitled to recover. But if. under the cireumstances disclosed by the record. Congress acted within the limits of its authority under the law and the treaty in acquiring the land and hunting rights for which it made compensation, the plaintif! is not in our opinion entitled under the terms of the jurisdictional act to recover (emphasis added)” Note that the court separates the case in which Congress pays no “com- pensation” from that in which it does pay some “compen