concurring in part and dissenting in part:
I agree with the court in (a) rejecting defendant’s argument that the “taking” date should be set back to March 3, 1855, and (b) upholding the Commission’s selection of March 20, 1863 for valuation of the wesern portion of the area involved. Together with the majority, I see more than adequate support for the March 1863 date for that western region which the white settlers entered and occupied.
My dissent concerns the eastern part of the Cowlitz land. So far as this record shows, there were no settlers there and no substantial sales or dispositions in the 1860’s, 1870’s, and the first years of the 1880’s. As the court’s opinion points out, the presidential proclamation of 1863 put up for sale only 14% of the Cowlitz lands, and those were in the western segment (which we all hold to have been “taken” on March 20, 1863). Such a limited offer to settlers would not, by itself, extinguish Indian title to the remaining territory, *531even if the proclamation be -deemed to presage future exclusion of the Indians from the latter region. See Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 494 (1967). There would have to be something more effective than the expectation of additional extinguishments of aboriginal title.
In my view, there is insufficient factual basis, in the existing record, for finding an 1863 “taking” of the large eastern unsettled sector simply by lumping it with the western to-be-settled part covered by the proclamation. It is true that most of the Cowlitz seem to have lived in the western area, but there is no evidence and no findings by the Commission as to the extent to which, and for how long, the eastern portion may still have been used by the tribe in Indian style for hunting, fishing, and subsistence. The Commission did not really address itself to this problem.1 I do not think that either this court or the Commission can summarily assume that these eastern lands, previously used in aboriginal fashion by the Cowlitz, were suddenly abandoned by the Indians after 1863, or that the members of the tribe became so “domesticated” at that time that they dropped their prior habit of ranging over the broad territory. Those are matters for further proof and detailed consideration by the fact-finding tribunal.2 I would therefore remand for additional proceedings on -this aspect of the claim.
Cowen, Chief Judge, joins in the foregoing opinion concurring in part and dissenting in part.The Commission did find that “[t]his taking for sale of the townships stipulated in the 1863 proclamation — these townships covering the entire area of Cowlitz permanent settlement — so substantially interfered with the Cowlitz way of life as to constitute an extinguishment of their title to the entire area * * To my mind, this general and conclusory statement is not adequate as a finding that the eastern portion was abandoned, wholesale, at that time. There should be a more explicit determination as to hunting, fishing, and use of the eastern territory for subsistence after 1863. Moreover, it even appears that certain of the permanent Cowlitz villages lay outside of the tracts covered by the 1863 proclamation.
Once aboriginal title has been found, as in this case, the Government, not the tribe, would have the burden of showing its extinguishment by any particular date. Cf. Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967).