dissenting:
With all respect I am unable to join or agree with the majority. I think the claimant tribe was entitled to a hearing on the merits. It is not that I see it as certain or even probable that they would prevail. I know that one’s simplistic assessment of the rights and wrongs of this old case could suffer much transformation as the evidence unfolded. It is just that I fail to see this as the kind of case the Indian Claims Commission could refuse to consider at all, as wholly outside its statutory jurisdiction. I think, if claimants have their day in court, the purpose of Congress is better served, even if they lose.
*646The majority ‘falls into three main errors, which I will take up in a different order than the court does, in order to present my own position more logically. They are: I, The Commission has no jurisdiction over claims rising out of or on account of acts of war by the United States armed forces; II, The Commission has no jurisdiction over wrongs to Indians on which the court says they could have sued individually ; and III, Clause 5 of Section 2 of the Act, 25 U.S.C. § 70a, “claims based on fair and honorable dealings that are not recognized by any existing rule of law or equity” only applies to claims rising out of a “special relationship” assumed towards a tribe by the United States. I conclude with a Section IV which considers some techniques of interpretation of the statute which I believe we should employ, and the use of which supports my position.
I. Military operations. I have no doubt, as the court says, that the prolonged imprisonment of the claimant Apache Tribe rose out of the hostilities that had raged between them and the United States, and was an act of war. In Scott v. United States, 33 Ct. Cl. 486 (1898) we held that the state of affairs obtaining was war.
The parties, and the decision below, pass by this absolutely vital fact with no notice, although appellant does say in its brief, to do it justice, that the tribe was held from 1886 to 1913 as prisoners of war. That is a true statement, as shown below, and it implies the rest. The parties must have been aware of it, but doubtless did not see how to fit it into their theories of the case. The diligence of the court in sua sponte bringing the fact forward into notice and reasoning as to its legal consequences, can only be commended. However, it confronts us with a problem as to which we have not had the assistance of counsel. I put forward my own 2‡ worth on the topic with some hesitation. If the case should be remanded for further consideration below, the Commission should not consider itself bound by anything we say on this topic.
We 'are dealing, then, with an act of war. The United States is not liable for acts of war in many circumstances where, in the absence of war, it would be. Juragua Iron Co. v. United States, 212 U.S.297 (1909); United States v. Pacific RR., 120 U.S. 227 (1887); Aris Gloves, Inc. v. United States, *647190 Ct. Cl. 367, 420 F. 2d 1386 (1970). However, war has or, in those days, had, its own laws. In United States v. Pacific R.R., supra, the Court said at p. 233:
It has been held by this court in repeated instances that, though the late war [Civil War] was not between independent nations, yet, as it was between the people of different sections of the country, and the insurgents were so thoroughly organized and formidable as to necessitate their recognition as belligerents, the usual incidents of a war between independent nations ensued. The rules of war, as recognized by the public law of civilized nations, became applicable to the contending forces. Their adoption was seen in the exchange of prisoners, the release of officers on parole, the recognition of flags of truce, and other arrangements designed to ¡mitigate the rigors of .warfare. The inhabitants of the Confederate .States on the one hand, and of the states which adhered to the Union on the other, became enemies, and subject to be treated as such, * * *
Persons who violate such recognized rules of war are accountable. In Re Yamashita, 327 U.S. 1 (1946). Officers of our own armed forces who breached the laws respecting civilian non-combatants would be accountable. In Re Yamashita, supra, at p. 16, and fn. 3. Therefore, I conclude, for purposes of the present claim, the fact the parties were at war does not in and of itself license any sort of frightfulness, but only changes the standards of “fair and honorable dealings” from those of peace to those of war. It would be the duty of the Commission to establish what the standards were, whether of warfare between civilized nations generally, or special ones developed for frontier conflicts with savage tribes, and apply them to the history as proven. It appears from the Scott decision, supra, there were several other instances of Indian hostilities recognized as war, therefore standards there must have been. It is significant that, as stated in the Scott case, at p. 495 the Government in 1886 allowed the Apaches to surrender “as prisoners of war to an army in the field.” This stipulation would have been meaningless unless rules such as are mentioned in the Pacific Bail-road case existed. The report of the Commissioner of Indian Affairs, 1913, describing the release of the survivors, calls them still “prisoners of war”. The parties, arguing the case *648on their own chosen theories, have not told us what the rules were, but their existence can be assumed as a matter of judicial notice. Since 20th century combatants feel justified in perpetrating any horror, we assume too readily this was always so, but it will be conceded, I think, that a 19th century Indian claim ought to be evaluated according to the more civilized standards of the 19th century.
In the Apache war with its background of rape, plunder, and murder, death, fire, and desolation which the court alludes to, justifying the imprisonment may well prove easier than condemning it; in any case, we should not fear to cast the light of day on this murky chapter of our nation’s past, if Congress wished it.
II. Individual wrongs. The court supposes that individual imprisoned Apaches could have sued for habeas corpus, or something, and therefore, the wrongs were personal and individual, not to a tribe, band or other identifiable group. The claimants attempt to show damage to the tribe, as a tribe. I do not think these inquiries are relevant. Once we identify the mass imprisonment as a war measure, it falls into the category of issues which are typically and traditionally assigned for political, group settlement. If we conceive, as I think we should, that the Act intends the tribe, as a tribe, to prosecute claims a sovereign nation would typically prosecute, instead of its citizens, then claims for breaches of the laws of war are clearly in that class.
Consider, for example, the Alabama Claims. These were purely private and individual in the sense that the losses were all of privately owned ships and cargoes, taken and destroyed by Confederate cruisers, for whose depredations England was responsible because she had fitted them out in violation of her duties as a neutral, under international law or the laws of war. By the theory adopted by the majority here, the United States Government should have abstained leaving the shipowners to sue someone in England, or petition to Parliament. Of course we know nothing of that kind happened. Our Government asserted its claim by at times acrimonious diplomacy, obtaining ultimately a treaty, 17 -Stat. 863, which submitted the issues to arbitration. The arbitrators awarded the United States $15,500,000, which England paid.
*649In United States v. Weld, 127 U.S. '51 (1888), the Supreme Court was called upon to review a question of jurisdiction of the Court of Claims arising out of disputes about the distribution of the award thus received by the United States. As to the rights of individual citizens not specifically provided for in the Treaty, the Court said at p. 56:
* * * The award of $15,500,000, directed to be paid by Great Britain, was to the United States as a nation. The text of the treaty itself speaks of the “claims on the part of the United States,” and in Article 7 the gross sum was “to be paid by Great Britain to the United States.” * * * The fact that the Congress of the United States undertook to dispose of this fund, and to administer upon it, in accordance with its own conceptions of justice and equity, precludes, at least for the purposes of this decision, judicial inquiry into such questions. The claimants had to rely upon the justice of the government, in some of its departments, for compensation in satisfaction of their respective claims; * * *
In another case, Williams v. Heard, 140 U.S. 529 (1891), where the Supreme Court was .called upon to review the ultimate disposition of the award made by Great Britain, the Court stated at pps. 537-38:
It was held in United States v. Weld, 127 U.S. 51, that this award was made to the United States as a nation. The fund was, at all events, a national fund to be distributed by Congress as it saw fit. True, as citizens of the United States 'had suffered in person and property by reason of the acts of the Confederate cruisers, and as justice demanded that such losses should be made good by the government of Great Britain, the most natural disposition of the fund that could be made by Congress was in the payment of such losses. But no individual claimant had, as a matter of strict legal or equitable right, any lien upon the fund awarded, nor was Congress under any legal or equitable obligation to pay any claim out of the proceeds of that fund.
Likewise in the cases involving French Spoliations, during the Napoleonic wars, it was recognized that the United States had the authority to “bargain” away certain of its Treaty obligations to France in exchange for France being free of compensation for damages done to individual Americans. This court in the case of Gray v. United States, 21 Ct. Cl. 340, *650391-2 (1886) while considering claims of United States Citizens against the United States arising out of the Treaty of 1800 with France stated:
* * * Ail claims are “national” in the sense of the jus gentium,, for no nation deals as to questions of tort with an alien individual; the rights of that individual are against his Government, and not until that Government has undertaken to urge his claim — not until that Government has approved it as at least prima fade valid — does it become a matter of international contention; then, by adoption, it is the claim of the nation, and as such only is it regarded by the other country. * * *
While the court in Gray advised Congress that it was of the opinion that the 1800 Treaty resulted in a Fifth Amendment taking by the United States, more recently in the case of Aris Gloves, Inc., supra, this court held that loss of property by an American citizen as the result of the Second World War and transactions which followed it did not result in a Fifth Amendment taking by the United States. Because of the different factual situations, while the court reached different results, the cases are not inconsistent. Of import here, however, is the fact that in both cases this court recognized that claims by an individual citizen on account of war measures of other nations accrue to the state, and the individual has no direct claim against the other nation.
The court suggests, not citing authority, that the imprisoned Indians could have petitioned for habeas corpus. Just petitioned: it doesn’t say they would have gotten anywhere. Appellee in its brief cites for this United States ex rel Standing Bear v. Crook, 25 Fed. Cas. 695 (No. 14,891) (C.C.D. Nebr. 1879), a most interesting case, in which Indians in military custody did indeed petition successfully for habeas corpus. However, the court expressly points out that Standing Bear’s tribe, the Poncas, were friendly, not at war with the United States, and the custody had to be defended under the civil laws, the Indian Affairs Commissioner having employed the military as mere policemen. A fair inference from this opinion is, if our imprisoned Apaches had petitioned for habeas corpus, and if the return to the writ had showed sufficiently that they were hostile Indians detained as prisoners of war under the war power, *651tbe court would not have ordered them discharged from custody. In Ex Parte Milligan, 71 U.S. (4 Wall) 2 (1866) the Court found it relevant to hold that Milligan did not enjoy the rights of a prisoner of war, and therefore could not be saddled with the burdens, p. 131.
Thus I would hold, though the wrongful imprisonment of an individual Indian is an individual matter, the imprisonment of an entire tribe as a war measure generates a claim for the tribe. The tribe was, of course, not an independent sovereign nation, but I fail to see how that matters. That Act makes it like a sovereign in its control over claims justiciable under the Act. For a recent view of the nature of Indian sovereignty, see, McClanahan v. State Tax Commission, 411 U.S. 164 (1973).
III. Clause 5 of Section A careful reading of the Lifan Apache Tribe v. United States, 180 Ct. Cl. 487 (1967), shows that the question of there having to be a “special relationship” for liability under that clause, was raised in the context of wrong having been done by third parties, the alleged dishonorable dealing by the United States being simply failure to protect. See p. 502. There is no suggestion there that the intentional infliction of harm by the directly employed agents of the United States is not dishonorable dealing. In Gila River Pima-Maricopa Indian Community v. United States, 190 Ct. Cl. 790, 427 F. 2d 1194, cert. denied, 400 U.S. 819 (1970), we again considered the above clause. The claim was for furnishing of inadequate health care and education, but the claimants could prove no express undertaking by statute or by treaty to furnish 'any at all. The extended discussion of the clause, with its emphasis on the lack of a special relationship, must be read in light of the nature of the claim. Nowhere does Judge Durfee say that the intentional infliction of harm would be non-actionable in the absence of a “special relationship” other than the relationship of guardian and ward that exists towards all Indians. In that context, what more “special relationship” could one ask for?
IV. How to Interpret the Statute. Our law has always recognized the possible existence of claims against the Government, based on moral considerations, “equity” in the broad *652sense, or justice, and the Supreme Court has held that Congress has power under the Constitution to pay them. United States v. Realty Co., 163 U.S. 427 (1896). However, it added at p. 444:
In regard to the question whether the facts existing in any given case bring it within the description of that class of claims which Congress can and ought to recognize as founded upon equitable and moral considerations and grounded upon principles of right and justice, we think that generally such question must in its nature be one for Congress to decide for itself. Its decision recognizing such a claim and appropriating money for its payment can rarely, if ever, be the subject of review by the judicial branch of the government. * * *
In United States v. Choctaw Nation, 179 U.S. 494 (1900) Mr. Justice Harlan (the elder) said at p. 532, that for the judiciary to attempt to correct an unjust Indian treaty
* * * would be an intrusion upon the domain committed by the Constitution to the political departments of the Government. * * *
In Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335 (1945), may be found a concurring opinion at p. 354- by Mr. Justice Jackson, in which Mr. Justice Black joined, which should be reread at least weekly by all judges and lawyers engaged in Indian claims litigation. Though all is good, I quote and emphasize from p. 355:
We would not be second to any other in recognizing ■that — judgment or no judgment — a moral obligation of a high order rests upon this country to provide for decent shelter, clothing, education, and individual advancement of the Indian. * * *
It is most unfortunate to try to measure this moral duty in terms of legal obligations and ask the Court to spell out Indian legal rights from written instruments made and probably broken long ago and to put our moral duty in figures as legal damages. The Indian problem is essentially a sociological problem, not a legal one. We can make only a pretense of adjudication of such claims, and that only by indulging the most unrealistic and fictional assumptions.
To what extent Jackson was a vox olamantis in deserto may be judged by the expectations of Congress in enacting the Act, here to be construed, only two years later.
*653The express purpose of the 1946 Act was to provide a forum where all claims by Indian tribes could be heard so as to free Congress from consideration of individual bills which sought compensation for wrongs done to the Aboriginal American. As stated by the Chairman of the Committee on Indian Affairs, Mr. Jackson (a different Jackson, now Senator), during House consideration of the bill. 92nd Cong. Rec. pps. 5312-13, House Debate on HR. 4497, May 20, 1946:
* * * In fact, since 1928 when at the suggestion, I believe, of President Hoover, a comprehensive study was made by the Brookings Institution of our Indian administration, every group, private or public, that has studied this Indian .problem has come to the conclusion that there ought to be a prompt and final settlement of all claims between the Government and its Indian citizens, and that the best way to accomplish this purpose is to set up temporarily an Indian Claims Commission which will sift all these claims, subject to appropriate judicial review, and bring them to a conclusion once and for all. That, in brief, is what H.R. 4497 seeks to accomplish.
ífc & íjs jjj
* *• * And let us make sure that when the Indians have their day in court they have an opportunity to present all their claims of every kind, shape, and variety, so that this problem can truly be solved once and for all without coming back to haunt us or our successors in the form of further bills to extend the jurisdiction that this bill would confer on an Indian Claims 'Commission.
ifc ‡ ifc sfí
The most important section of the bill is section 2, which defines the jurisdiction of the claims and counterclaims that the Indian Claims Commission is to consider. It was the unanimous opinion of the committee that ■the jurisdiction of the Commission ought to be broad enough so that no tribe could come back to Congress 10 years from now and say that it had a meritorious claim which the Claims Commission was not authorized to consider.
This apparent desire to include all possible claims in the jurisdiction of the Commission is reflected in the House Report of the Bill.
H. Rep. No. 1466, 79th Cong., 1st sess. (1945), p. 2: * * * giving them a full and untrammeled right to have their *654grievances beard * * *; p. '3: Purpose of the Bill * * * 'It would require all pending Indian claims of whatever nature, contractual and noncontractual, legal and nonlegal, to be submitted * * *
Jurisdiction
In order that the decisions reached under the proposed legislation shall have finality it is essential that the jurisdiction to hear claims which is vested in the Commission be broad enough to include all possible claims. If any class of claims is omitted, we may be sure that sooner or later that omission will lead to appeals for new special jurisdictional acts. And if the class of cases omitted is one which the Congress has in the past declared to be worthy of a hearing, in one or more jurisdictional acts, it is probable that future Congresses will likewise grant a hearing to such claims, and the chief purpose of the present bill, to dispose of the Indian claims problem with finality, will have been defeated.
Testimony before the Senate by persons representing the Justice Department indicate that while that Department sought the amendment of the House version of the Bill, it recognized the expansive nature of the remedies afforded to Indian Tribes. Thus in testimony given before the Senate Committee on Indian Affairs, 79th Cong. 2nd sess. July 1, 12 and 13, 1946, at pps. 54 and 58, Mr. Chambers of the Department of Justice testified as follows:
*****
Now, the third, the claims based upon fair and honorable dealings, was already in the bill, I believe, as No. 6, but the only change that we propose there is to indicate that those claims were in addition to the other two, that is to say, “that are not recognized by any existing rule of law or equity.” Consequently, we felt that the Commission then would have jurisdiction over all legal and equitable claims and over all that might be called moral claims.
The Chairman. And what have you excluded ?
Mr. Chambers. We have excluded — we think we have excluded nothing, but removed questions of interpretation.
The Chairman. Well, for example?
Mr. Chambers. For example, I can illustrate to you, Mr. Chairman. Take (4) there; line 11 is stricken through—
*655claims on account of any breach of duty committed to the injury of the claimant by any officer or agent of the United States while acting within the apparent scope of his authority.
Now, we figured that if you allow claims in tort with respect to which the claimant would be entitled to sue if the United States were suable, we had really covered ■that. So that (3) and (4) were, it seemed to us, covering somewhat the same ground, and it would be simpler to provide in the way we did.
* * * * *
Mr. ChambeRS. Mr. Chairman, may I say this: I cannot understand why, if we provide, as we proposed 'here, to take in all cases in law and equity, including cases, to be safe, arising in tort, and then we say “all moral claims” — why anybody should have an objection on the ground that we have not included all types of claims.
*****
It should be noted that while the Senate version of the final Bill deleted certain provisions of the House Bill, the Conference Committee Report took care to state that “the change was not intended to deprive the claimants of the right to invoke the jurisdiction of the Commission in any case which would have been cognizable under the language of the bill as it passed the House” (H. Rep. 2693, p. 5, 79th Cong., 2nd sess. (1946)).
Of interest also though not strictly legislative history, is a statement made during the House debate by Congressman Case of South Dakota (Vol. 92, Pt. 4, Cong. Rec. 5319 (1946)) :
WOUNDED KNEE CLAIMS
The bill will not remedy every wrong that has been done the Indian tribes of this country but its passage here and in the body at the other end of the Capitol and its signature by the President will open the door for the settlement of honest claims which have never had their day in court.
As an illustration, I might say that in my opinion this bill, if enacted into law, will make possible consideration of the claims of the Sioux Indians who were injured or suffered losses in the Wounded Knee massacre. That is an identifiable band or group of Indians whose claims have never been determined in court, although as the result of hearings which were obtained when I was a *656member of the Indian Affairs Committee, a few years ago, a bill for settlement was favorably reported.
We who have taken the oath and put on the robe can do no better, I think, than to shrug our shoulders, roll up our sleeves, and do our very best to justify the expectations of infallibility entertained of us. At the same time, it seems to me we must watch ourselves to avoid slipping into the excessive legalism we as lawyers, are normally prone to, wrongly limiting our task to the intellectual games so revolting to Mr. Justice Jackson. The Congress sought to put us on a broader plateau. It is error to pretend we face purely legal issues. Excessive legalism, a forgetting that the tribunal is called on not just for legal niceties, but statecraft too, produces such absurdities as Tlingit & Haida Indians v. United States, 182 Ct. Cl. 130, 389 F. 2d 178 (1968), in which we denied these tribes of fishing Indians all compensation for their fisheries, but instead paid them for their gold mines they had never had. In deciding whether a claim is within or outside the Act, in doubtful cases, a valid technique is to consider whether any distinction exists, that would appeal to Congress, between the involved claim and those that are clearly covered. United States v. Native Village of Unalakleet, 188 Ct. Cl. 1, 411 F. 2d 1255 (1969).
Turning again to the language of the Act and looking to how it has been applied by the Commission and the court it should be noted that the Act only permits claims by identifiable groups of Indians and not individual claims. However, the Act specifically provides for claims sounding in tort. A reasonable conclusion is that Congress intended that Tribes be able to claim compensation for tortious acts committed against them. In light of the legislative history of the Act it is also reasonable that such claims were to include that area of tort other than torts against property. The legislative history also indicates that claims arising under “fair and honorable dealings” were seen as being in addition to those provided for in the other sections of the Act. It appears that it was the intent of Congress to include in this clause the possibility of claims arising wholly on moral grounds. Finally, of interest also is the matter of set-offs. The Act permits set-offs of gratuitous expenditures made on behalf of the Tribe *657against a recovery by the Tribe. If the Government can set-off expenditures that do not involve property rights, it stands to reason that the Tribe can likewise make claims for deprivations which arose outside the scope of rights in tangible property.
The expansive nature of the claims which might be brought under the Act was recognized by this court in the case of Otoe & Missouria Tribe of Indians v. United States, 131 Ct. Cl. 593, 621-22, 131 F. Supp. 265, 283-84, cert. denied, 350 U.S. 848 (1955).
* * * The legislative history of the Act establishes that from the beginning in 1928, certain members of Congress desired the enactment of a bill which would settle extra-legal or moral claims of Indians against the United States, including claims based on their Indian title property right in land which the Government had either taken without the formality of a treaty, or which the Government had acquired under ratified treaties procured by fraud, duress, unconscionable consideration, etc., or concerning which the Government had been guilty of dealings less than fair and honorable. This desire on the part of certain members of Congress became the desire of the majority of Congress and, with the passage of the Act in 1946, became the legislative intent expressed in clauses (3), (4) and (5) of section 2.
This meaning, or legislative intent, revealed by the legislative history, merely corroborates the literal meaning of those clauses and renders them consistent with each other and with the legislative purpose also revealed in the Act’s language and its history.
If the Congress intended that the Act be limited in scope to claim for land it would have so stated. On the contrary the Act contains the most expansive language to describe the types of claims which may be brought. Specifically, clause 2 of section 2 of the Act provides for “all other claims in law or equity, including those sounding in tort” and clause 5 of this same section provides for claims based upon “fair and honorable dealings that are not recognized by any existing rule of law or equity.” It is hard to imagine how Congress could have written a more broadly worded jurisdictional statute.
*658The idea that the Act was limited to land and property rights got its start, I believe, from (President Truman’s ambiguous pronouncement upon signing the Act, in which he said the Act
* * * removes a lingering discrimination against our First Americans and gives them the same opportunities that our laws extend to all other American citizens to vindicate their property rights and contracts in the courts against violations by the Federal Government itself. (Ehrenfeld, Legislative Material on the Indian Claims Commission Act of 1946, p. 715.)
Immediately preceding (same volume, p. 713) is Ulterior Secretary Krug’s letter to the President recommending he sign the legislation. He says:
* * * For the futiure they will be permitted to sue on the same basis as their fellow citizens of other races to vindicate contract and property rights. * * * (Emphasis supplied.)
Obviously Krug, and therefore Truman too, were referring to the post-1946 provision now codified as 28 U.S.C. § 1505. This is not as sweeping as the pre-1946 provisions and includes no clause relating to “fair and honorable dealings.” This court has never held, or has held only in dictum, that pre-1946 claims must relate to land or property. To the contrary, Judge Davis says, concurring in Gila River Pima-Maricopa, supra, 190 Ct. Cl. at 802, 427 F. 2d 1200-01:
* * * The Act was not designed to grant compensation for all the detriment accruing to the Indians by our ongoing policy toward them but, rather, had the more limited goal of paying for specific deprivations of land or property or rights protected by treaty, statute, or then-existing law. * * * (Emphasis supplied.)
This clearly contemplates claims not related to land or property and if “then-existing law” includes the laws of war so far as they relate to hostilities with Indians, I believe it can be taken 'as correct, though I do not exclude the possible existence of valid moral claims on other bases. Judge Durfee for the court in the same case refers to H. Rep. 1466, 79th Cong. 1st sess., as saying the jurisdictional section of the Act was a synthesis of cases which have heretofore received *659consideration under special jurisdictional acts, but be adds in a footnote 5, p. 801, 427 F. 2d 1200, the Report also says:
“* * * If any class of claims is omitted, we may be sure that sooner or later that omission will lead to appeals for new special jurisdictional acts. * * *”
It says more than that, as quoted above. I am certain the real intent was that a novel type of claim, if presented to the Commission, should be considered. If, 'as stated in the petition, it appealed to the Commission’s mind as one that had a foundation in justice and equity, it should proceed to trial and fact finding. If proof failed, that was that; if it succeeded, the Commission would have to find the facts and put itself mentally in the shoes of Congress and decide what Congress would have done with a special Act based on similar facts.
We have to consider frequent suits under 10 U.S.C. § 1552, for the correction of military records “to correct an error or remove an injustice.” This was passed by the same Congress in the same year and with a purpose in common with the Indian Claims Act, i.e., to get rid of a multitude of private bills. We encounter the same tendency of lawyers there as here, namely to focus on correcting error and forgetting all about removing injustice, without regard to what Congress might have done had it retained its original jurisdiction. See, e.g., Skaradowski v. United States, 200 Ct. Cl. 488, 471 F. 2d 627 (1973); and my comment on that case (concurring opinion) in Mayer v. United States, ante at 105 (decided March 16, 1973). There may be doubts about casting this kind of issue in a pseudo legalistic mold and assigning a part in it to an Article III court, but our role is only the traditional one of judicial review, and all we have to do is to consider the quasi-legislative duties and roles of the non-Article III factfinding bodies and take them into realistic account in arriving at our decisions.
The Commission held itself not bound by collateral estoppel or res judicata, but only stare decisis. We have not had a case like this before, so there is no stare decisis here. In my opinion the Indian Claims Commission had jurisdiction to consider this case and its holding it had not was reversible error.
*660Dueuee, Senior Judge, and Khnzig, Judge, join in the foregoing dissenting opinion.