dissenting:
In 1930 the plaintiff, Creek Nation, sued the United States to recover the value of the identical 2,187,200 acres involved in this case upon practically the same grounds that it alleges here. In that case, Creek Nation v. United States, 77 Ct. Cl. 226 (1933), the plaintiff claimed that it had a legal and equitable claim against the United States for the value of this land because the government had not completely performed the duties it owed to the Creek Nation under the provisions of the treaty of 1832.
The present suit is maintained on the same record 'as the prior suit. There has been no additional evidence submitted. Nevertheless, the court, in connection with its construction of the Indian Claims Commission Act of 1946, is allowing the Creek Nation to recover the value of the same 2,187,200 acres of land involved in the 1933 suit, notwithstanding the fact that its claim for the value of this land was flatly rejected by the court in 1933. There are no new facts, no new evidence, nor any new questions here that were not presented in the prior case. We have new terms in the present case, such as “unconscionable consideration” and “fair and honor*411able dealings,” but when these phrases are reduced to their basic meanings, it is clear, 'aJt least to me, that the same claims, in substance and effect, were made in the 1933 suit. The Congress could not have intended that such claims could be relitigated when it enacted the Indian Claims Commission Act. The court, in allowing the Creek Nation to recover in this case on claims that the court rejected in no uncertain terms 40 years ago, is, in my opinion, a reversal of its prior opinion without any new facts or issues that justifies such action after such a long lapse of time. Such a judgment will require the payment out of public funds of millions of dollars without justification under the facts or the law.
In the present suit, the Creek Nation bases its suit on two main claims, namely, (1) that the Indians who selected reserved tracts of land received “unconscionable consideration” for such land when it was sold by them to white settlers, and (2) that the Indians did not receive “fair and honorable dealings” from the government in connection with the sale by them of their tracts of land. A discussion of these claims follow.
The treaty of 1832 provided in Article ITI with reference to the consideration to be received by the Indians for the land involved here, in pertinent part, as follows:
ARTICLE III. These tracts may be conveyed by the persons selecting the same, to any other persons for a fair consideration, in such mannner as the President may direct. The contract * * * shall not be valid ’till the President approves the same. * * * [Emphasis supplied.]
In the 1933 suit the plaintiff claimed that various individual Indians had been defrauded in the sale of their selected lands by white men by the use of various fraudulent schemes and devices, and that because the government did not prevent such practices, the Indians did not receive a “fair consideration” for their land and the government was liable for the value of the land. This court rejected this claim and denied recovery.
In the present suit the Indians are urging the same claim on the same facts. Admittedly, they couch their claim here in different words by saying they received an “unconscionable consideration” instead of failing to receive a “fair con*412sideration.” I see no basic difference between these terms. One has to engage in semantic reasoning to hold otherwise. If an Indian does not receive a fair consideration for his land, it must be concluded that the consideration was unfair. An unfair consideration paid to an Indian for his land is the same as an unconscionable consideration. Consequently, it is clear that this issue was alleged, raised and decided in the 1933 decision of this court. The plaintiff is collaterally estopped from again asserting it in this case.
The other ground relied on by the plaintiff for recovery in the present case is that the government did not engage in “fair and honorable dealings” with the Indians because it did not prevent the Indians from being defrauded out of their lands by the white settlers, and because of such neglect of duty the government is liable for the value of such lands. This same claim was made by the plaintiff in the 1933 suit, although the term “fair and honorable dealing” was not used in that litigation. The claim was couched in different language in that case, but the meaning was the same. There the plaintiff claimed that the government had a duty under the treaty of 1832 to protect the Indians from fraudulent acts of white men in connection with the sale of Indian land, and also a duty to see that the Indians received a fair consideration for the sale of their lands. The plaintiff claimed that the government failed to carry out the provisions of the treaty in these respects and by reason thereof, did not deal fairly with the Indians and as a consequence, the government was liable for the value of the land. This court rejected this claim in the prior suit. The plaintiff is collaterally estopped from again alleging the same claim in the present case.
The facts found in the 1933 suit show that the dealings were fair and honorable and that the United States did everything it could to protect the Indians in the sale of their land to the white settlers. No new and substantial factual question has been raised on this issue in the present case. We held in Creek Nation v. United States, 168 Ct. Cl. 483, 495 (1964):
* * * Where the facts found in the prior litigation show on their face that the dealings were fair and honor*413able under the circumstances and no new and substantial factual question on the issue is raised, the Commission can, of course, entertain a motion for summary judgment on behalf of the Government. *■ * *
The above-cited case states the correct rule, and, if applied here, it is dispositive of this issue in favor of the government. Nevertheless, the court by its process of semantic reasoning holds that the term “fair and honorable dealings” is somehow different to the claim 'asserted by the plaintiff and •rejected by the court in the prior suit on this issue. I cannot agree. In the prior suit this court held:
* * * It [The Creek Nation] has no legal or equitable claim of any kind or character against the United States growing out of the treaty of 1832. * * * '[77 Ct. Cl. at 263.]
This broad, comprehensive, and all inclusive decision of the court covered every legal or equitable claim “of any Mnd or character,” and certainly included the claims now being asserted by the plaintiff, both as to “unconscionable consideration” as well as to “fair and honorable dealings.” As stated above, the court has, in my opinion, engaged in an exercise of semantics to hold otherwise in the present suit.
The government contends in the present suit that the claim being asserted is not a tribal claim but is a claim of individual Indians. I think the government is right. The Creek Nation did not suffer any loss as a tribe when the individual Indians were defrauded in connection with the sale of their lands. The loss was that of the individual Indian and not a tribal one. We have often held that we d'o not have jurisdiction of the claims of individual Indians. That rule should be applied here. As a matter of fact, the Indian Claims Commission Act, 60 Stat. 1049, 25 U.'S.C. § 70, 70(a) (1), denies jurisdiction to the Commission and to this court of claims of individual Indians. See Cherokee Freedmen v. United States, 161 Ct. Cl. 787 (1963); Minnesota Chippewa Tribe v. United States, 161 Ct. Cl. 258, 315 F. 2d 906 (1963).
I agree Completely with the dissenting opinion of the Honorable Jerome K. Kuykendall, Chairman of the Indian Claims Commission, in this case (26 Ind. Cl. Comm. 410), both as to the facts and the law. I have concluded that I *414cannot improve on bis opinion, and, accordingly, I adopt it with minor changes, as the remainder of my dissenting opinion in this case as follows:
I cannot agree with the court’s decision in this case that the Creek Nation is entitled to pursue an unconscionable consideration claim for 5,200,000 acres of Alabama Creek land ceded under the treaty of March 24, 1832, Y Stat. 366, so as to include the 2,18Y,200 acres that were reserved for individual Creeks who wished to remain in Alabama.
The prime issue of course is whether under our Act the United States can be held liable for the fair market value for this 2,18Y,200 acres of allotted lands when the record shows that, after the 1832 treaty had been concluded, many Creek Indians either did not receive a fair consideration in disposing of their allotments, or were euchred out of their lands by unscrupulous land speculators and other sharpsters. As the court sees it, the United States did not fulfill its 1832 treaty obligations to the Creek Nation because it failed adequately to protect Creek allottees from improvidently disposing of their lands. Thus, the court reasons, the sum total of all the unfortunate post treaty happenings resulted in a failure of the 1832 treaty consideration to the 'Creek Nation, and, therefore, the court can revise the ■1832 treaty under sec. 2 clause 8 of our Act by ignoring the reserve provisions in Article 2 of the treaty and treating the reserve lands as having been ceded to the United States and, ergo, plaintiff is now free to pursue an unconscionable consideration claim, not only for the 3,012,800 acres ceded outright to the United States, but for the entire 5,200,000 acres. In the alternative, the court would allow recovery under sec. 2 clause 5 of the Act on the basis that the government’s conduct toward the Creek Nation violated the standards of “fair and honorable dealings.”
Forty years ago the Creek Nation filed suit in the Court of Claims to recover the value of the same 2,18Y,200 acres of reserve lands, and upon substantially the same grounds, namely, that the United States failed in its obligations to the Creeks under the 1832 treaty. In that 1933 case, Creeks Nation v. United States, the Court of Claims, after entering detailed findings of fact and an opinion, concluded that the United State had fulfilled its 1832 treaty obligations, and that,
*415* * * It [Creek Nation] has no legal or equitable claim of any kind or character against the United State growing out of the treaty of 1832. * * * [77 Cfc. 01. at 263.]
I do not suggest that the decision of the Court of Claims in the 1933 Greek case is a bar to the instant suit on grounds of res adjudieata, even though the record in the 1933 Creek case is the record in this case, and the parties are the same. However, I do suggest that certain factual determinations and legal conclusions made by the Court of Claims in the 1933 Creek case, do have an estoppel effect which the Commission was not at liberty to ignore.
Again, as it did in the 1933 Greek case, the plaintiff alleges as a basis for recovery that the defendant failed completely to perform the duties owed to its Indian ward, the Creek Nation, under the provisions of the 1832 Creek treaty. The alleged failure to perform is, according to the plaintiff, the direct result of many wrongful acts committed by the United States either before or after the conclusion of the 1832 treaty, all of which wrongful acts resulted in the loss of the Creek reserved area.
Where, as in this case, an area of land is reserved by treaty out of Indian tribal land that is ceded to the United States under the same instrument, it is treated as not being ceded, since the act of ceding and the act of reserving are contemporaneous.1
'If the reserved area is a tribal reserve, then a tribal interest is maintained, and any subsequent disposition of this tribal area may, under the Indian Claims Commission Act, give rise to a separate cause of action by the tribe apart from any cause of action involving the ceded area. In this case we are not dealing with a tribal reserve, but with the individual reserves. Individual reserve areas are not the subject of communal ownership, but connote ownership in severalty.
*416The Court of Claims has already spoken on the matter of individual reserves, and the nature and substance of the interests that are involved. In the case of Absentee Shawnee Tribe v. United States,2 the Shawnee Tribe, by the treaty of May 10, 1854, 10 Stat. 1053, ceded to the United States a large tract of land west of the State of Missouri, and the United States contemporaneously ceded back 200,000 acres to the Shawnees. Out of this 200,000 acres the Shawnees were to select and choose in the manner described in the treaty, individual tracts to be 'held in severalty. In a suit filed before the Commission it was alleged that, during the Civil War period, trespassers and intruders entered and occupied the Shawnee reserve area, and that the United States failed adequately to protect the Indians in their possession. It was further alleged that,
* * * [T]he Federal Government improperly induced and allowed these Indians to select individual allotments from the group land and sell their individual tracts to white settlers for a nominal consideration, and (v) as a result of these improprieties (including misfeasance by government agents) the Black Bob Indians were wrongfully deprived of their treaty land through this chain-process of selection, allotment, and sale. [Footnote omitted.] [165 Ct. Cl. at 514.]
The Court of Claims concluded that the Shawnee tribal claim seeks to redress individual wrongs as contrasted to a tribal injury, and that such individual wrongs are not com-pensable under the Indian Claims Commission Act. In summing up the court went on to say:
We come back, then, to the point that — since the right to select was vested, personal, and individual — any wrongs done in inducing requests for allotment, or in the process of selection, allotment, and sale, were individual and personal wrongs to the particular Shawnees who were bilked or defrauded. Improper inducement of an individual to exercise his right to an allotment might be an injury to him, but it would not trench upon any group rights; a fortiori the same can be said for improperly induced selections or sales. As a unit, Black Bob’s Settlement had no more interest in *417these transactions than did the entire Shawnee Nation in the process by which the “severalty” Shawnees acquired and sold their individual allotments. See Ponca Tribe v. United States, 6 Ind. Cl. Comm. 409 (1958). Even if we were to find the defendant guilty of all the nonfeasance and malfeasance the petitioners 'assert, we would have to hold that the victims were the individual Shawnees, not the group as such. [165 Ct. Cl. at 516-17.]
I find little if anything of substance that would distinguish the facts and claims asserted in the Shawnee case from the Creek matter now before us.
The court and the plaintiff suggest that the instant case is different on various grounds, such as: it was wrong for the United States to negotiate for the removal of the Creek Nation to the Indian Territory in spite of the avowed removal policy of the government as enunciated under the Act of May 28, 1830;3 it was wrong for the United States to misrepresent to the Creeks that Alabama had the authority to extend its laws over them; and, since the United States had obligated itself to the plaintiff tribe under the 1832 treaty “that its members would receive patents to their reserves or a fair consideration for them,” it was wrong for the United States to conclude the 1832 treaty when the Government at all times knew the difficulties individual Creeks would encounter in handling their allotments.
The plaintiff herein has placed great emphasis upon the fact that the President 'had decided in the late 1820’s that it was in the best interest of the Creek Na/tion to remove the tribe to a new home in the Indian territory. The passage of the 1830 Eemoval Act, sufra, gave the President the authority to exchange Indian lands owned by the United States in any state for lands west of the Mississippi Eiver not included in any state. The fact that in 1830 the United States, in an exercise of plenary power, declared by statute a new Indian policy, which on its face may offend or go contrary to the wishes of certain tribes, including the Creeks, does not in and of itself give the plaintiff tribe any claim or cause of action under our Act. Such new policy might set the stage, but it is only the execution of that policy that could infringe upon *418tribal rights. As Judge Davis so aptly observed in his concurring opinion in the case of Gila River Pima-Maricopa Indian Community v. United States:
* * * 'But it would be wrong for judges to read into the Indian Claims Commission Act, passed 'almost twenty-five years ago, currents of thought which are emerging today but were not infused into that 1946 statute. The Act was not designed to grant compensation for all the detriment accruing to the Indians by our ongoing policy towards them but, rather, had the more limited goal of paying for specific deprivations of lands or property or rights protected by treaty, statute, or then-existing law. The instances cited in the Congressional history are of that kind. There is no intimation at all in the legislative background that the “f air and honorable dealings” clause was a catch-all allowing monetary redress for the general harm — psychological, social, cultural, economic — done the Indians by the historical national policy of semi-apartheid.4
Coupled with this removal policy the Commission insists that:
[I]n order to induce the Creeks to cede their lands, the Federal Government misrepresented to the Creeks the authority of Alabama to extend its laws over them.5
The matter of permitting individual Creeks to remain in Alabama first came to light in a talk to the Creek Nation by President Andrew Jackson on March 28, 1829. After recounting the increasing conflicts between the white settlers and the Indians, President Jackson advised the Creeks that he was sending his emissary Colonel John Crowell to consult with them upon the subject of their removal to the Indian territory where they could join that part of the Creek Nation that had already emigrated. President Jackson then went on to say:
I have instructed Colonel Crowell to speak the truth to you, and to assure you that your father, this President, will deal fairly and justly with you and whilst he feels a father’s love for you, he advises your whole nation to go to the place where he can protect and foster you. *419Should any incline to remain and come under the laws of Alabama, land will be laid off for them and their families in fee.
My children, listen: My white children in Alabama have extended their law over your country. If you remain on it, you must be subject to that law. If you remove across the Mississippi, you will be subject to your own laws and the care of your father, the President.6
It is obvious to me that President J ackson was discussing the problems of individual Creek Indians who desired to remain in Alabama. Whether or not Alabama could properly extend its laws over Creek tribal lands is irrelevant with respect to any Creek allottee who had the right to freely alienate his allotment or obtain a patent. A Creek allottee under the 1832 treaty did not hold tribal land; he was the sole owner, and, like any other individual Alabama land owner, he would be subject to Alabama laws. I do not read into President Jackson’s statement that he was acknowledging or acquiescing in the extension of Alabama laws over tribal lands belonging to the Creek Nation. I see no case for misrepresentation. The fact of the matter is that the United States had already committed itself to the removal of the entire Creek Nation to the Indian territory where a portion had already emigrated pursuant to the Creek Treaty of January 24, 1826, 1 Stat. 286. In this instance the Government had no reason to challenge the right of Alabama to extend its jurisdiction.
I now reach the question of whether the United States fulfilled its 1832 treaty obligations to the Creeks, and I answer this in the affirmative by referring to certain conclusions reached by the Court of Claims in the 1933 Greeh case.
The United States was well aware at the time of the 1832 treaty, that many of the potential Creek allottees, not being versed in the art of bargaining and selling real estate, would, if left to their own devices suffer dire consequences at the hands of white land speculators.
*420As the 'Court of Claims found and subsequently noted in its opinion in the 1933 Greek, case:
* * * The commissioners who negotiated the treaty on the part of the Government foresaw the dangers, both to the Indians and to the Government, of the inclusion of this provision in the treaty, and expostulated in vain against it, but the Indians considered it the most important consideration in the treaty to them, and without the provision would not enter into the treaty. * * * [17 Ct. Cl. at 251]
The court then went on to say that, even after the 1832 treaty 'had been concluded, the United States tried unsuccessfully to negotiate a new treaty with the Creeks whereby the Indians would cede their reserves and the Government would “obligate” itself to sell the reserves in the open market at an early date and “* * * pay to each individual entitled to a section or half-section under the treaty of 1832, whatever his particular section or half-section should be sold for.”7 The Indians would not accept this proposition.
The plaintiff herein insists, as it did in the 1933 case, that the many intruders who moved into the Creek lands at the time of the 1832 treaty, made it virtually impossible for the United States to carry out its treaty obligations to the Creek Nation. In like manner the court in its opinion has emphasized how important it was to the Creeks that the United States remove all the intruders from the Creek lands. It is also clear from the record that the United States was unable to remove physically all the trespassers, squatters, and other interlopers who had flocked to the subject area.
The Court of Claims examined the record on this score, and concluded that the Government’s failure to remove trespassers did not interfere seriously either with the survey of the land or the location of the individual reserves to the Indians, and that the
* * * plaintiff’s contention, therefore, that the failure of the Government to remove the intruders made the carrying out of the terms of the treaty an utter impossibility is not sustained in so far as article II of the treaty is concerned. [77 Ct. Cl. at 252]
*421•Article HI of the 1832 treaty obligated the United States to approve only those contracts of sale which called for payment of a fair consideration to the Indian seller. The record herein shows that the United States promulgated rigid regulations governing such sales in order to insure, as far as possible, the payment of a fair consideration. Despite these regulations, frauds were perpetuated upon Indians by (1) either relieving the Indian seller of his money by fraud after the sales contract had been approved and the purchase money paid, or (2) impersonating the true Indian owner in order to obtain an approved contract of sale.
As to the first method of defrauding the Indians the Court of Claims had this to say:
It is not within the power of the Government to protect the Indians from such fraudulent and deceptive practices, nor was there any liability on the part of the Government growing out of the treaty to do so. The Indians, under the treaty, had the right to dispose of their reservations. The Government under article III of the treaty, obligated itself to protect them in the disposal of their reserves to the extent that they received a fair consideration for the same. The Government prohibited the sale of lands for less than, in the opinion of the certifying agents, they were worth, and saw to it that the Indians in all cases received the contract consideration for their lands. When the Government did this it did all that it could do, or that it was obligated to 'do, under article III of the treaty. What disposition individual Indians selling reserves made of the money received by them, subsequent to its receipt, was beyond the reach of the Government. The land belonged to the Indians and the money received by them from its sale was theirs, and after the money was paid to them and the conveyance approved, the Government had discharged its full obligation to the plaintiff under article III. [77 Ct. Cl. at 254-55.]
As to the second method of defrauding the Indians by impersonation, the Court of Claims on the record before us found that only a small percentage of the total contracts of sale were procured in this manner, and that the sales were subsequently set aside. [77 Ct. Cl. at 257.]
In my opinion the plaintiff is estopped in this case to deny many of the conclusions reached on the record by the Court *422of Claims in tlie 1933 Oreeh case, with respect to the Government’s obligations under the 1832 treaty and its overall conduct and dealings with the Creek Nation and the Creek Indians during the negotiations and the carrying out of the provisions of the 1832 treaty — all of which matters bear heavily upon the question of whether the plaintiff can maintain in this case an “unconscionable consideration” claim for the reserve area under section 2 clause 3 of the Act, or a “fair and honorable dealings” claim under section 2 clause 5 of the Act.
The fact that “fair and honorable dealings” was not, in so many words, a statutory basis for recovery in the prior litigation between the parties8 does not, ipso facto, prevent the application of the doctrine of collateral estoppel in the instant case.
The correct way to approach such a problem is set forth by the Court of Claims in Creek Nation v. United States, 168 Ct. Cl. 483 (1964) at page 495:
The Commission should make a preliminary determination as to whether a plea of unfair and dishonorable dealings raises a new and substantial issue that was not or could not be decided in prior litigation. Where the facts found in the prior litigation show on their face that the dealings were fair and honorable under the circumstances and no new and substantial factual question on the issue is raised, the Commission can, of course, entertain a motion for summary judgment on behalf of the Government. See the companion case decided today, Appeal No. 10-63, The Creek Nation v. United States post, p. 512. There are also cases in which the claim based on fair and honorable dealings was recognized by a rule of law or equity in prior litigation; in such cases, clause 5 has no application. Blackfeet and Gros Ventre Tribes v. United States, 127 Ct. Cl. 807, 818 (1954), cert. denied, 348 U.S. 835 (1954). In other instances, the act requires the Commission to hear the Indians’ claim of unfair and dishonorable dealings on the merits. Unless this be done, there is a failure to fulfill the objective of the act to give the Indians a full day in court on all issues not adjudicated by a competent body.
The facts found in the prior litigation show on their face that the dealings were fair and honorable under the circurn-*423stances and no new and substantial question on the issue has been raised. In fact the factual record now before us is the same record which was before the Court of Claims in the prior Creek case, supra.
The repeated and specific assertions of the Court of Claims that the government had acted in the best interest of the plaintiff at all times and had done all it could do to protect it and its members, prevent us from concluding otherwise.
Since there is no new evidence of record, and, since the plaintiff has had its day in court on the question of the defendant’s 1832 treaty obligations to the 'Creek Indians with respect to the reserve lands, I would let the case go forward for determination of the fair market value of the 3,012,800 acres of land actually ceded by the Creek Nation under the 1832 treaty. 1 would deny any recovery by the Creek Nation of the value of the 2,187,200 acres involved in the case, and to that extent would reverse the decision of the Indian Claims Commission.
Cowen, OMef Judge, and Bennett, Judge, join in the foregoing dissenting opinion.Citizen Band of Potawatomi Indians, 179 Ct. Cl. 473, 391 F. 2d 614 (1967) aff’g in part, rev’g in part, Docket No. 217, 16 Ind. Cl. Comm. 232 (1965).
“* * * As to the ‘grants’ not located within the community, it has been the practice oí the Indian Claims Commission not to include in the area for which compensation Is to be allowed, lands which, though ceded to the united States under one provision of a treaty, were by subsequent treaty provisions to be granted by the united States to third parties. [Citations omitted.) With this practice we concur.” Id. at 490-91.
165 Ct. Cl. 510 (1964) (aff’g, Docket 334-A, 12 Ind. Cl. Comm. 161 (1963), aff’g in part, rev’g in part, Docket 334-B, 12 Ind. Cl. Comm. 180 (1963)).
4 Stat. 411.
190 Ct. Cl. 790, 802 (1970) (ajj’g. Docket Nos. 236-K, et al„ 20 Ind. Cl. Comm. 131 (1968)).
Commission’s Finding 5.
PI. Ex. 1, Printed record, Court of Claims, Creek Nation v. United States, 77 Ct. Cl. 226.
1d. at 251.
Creek Nation v. United States, supra, 77 Ct. Cl. 226 (1933).