concurring in part and dissenting in part:
I concur with the majority in reversing the decision of the Indian Claims Commission which allowed the Wichita Tribe of Oklahoma Affiliated Bands to intervene in this case. However, I respectfully dissent from that part of the majority decision which reverses the order of the Indian Claims Commission for summary judgment for recognized title by appellees Kiowa, Comanche and Apache Tribes to Koyce Areas 510 and 511 under the Treaty of 1865.
The majority holds (1) that “the 1865 Treaty was not intended to grant recognized title to the entire tract” described therein, “but to leave its territorial extent for later determination * * * and the claim based on the 1865 Treaty must fail, whether or not the 1867 Treaty was intended as an exercise of the President’s 1865 Treaty power”; (2) “that no recognition of title to any specifically bounded tract occurred in 1865, and the first such was in 1867”; and (3) whether the 1867 Treaty constituted action by the Congress or by the President “is actually irrelevant.”
These conclusions by the majority are squarely in conflict with the relevant findings and decision of the Indian Claims Commission, with which I concur. In my opinion the grant of title in the 1865' Treaty to the Kiowa, Comanche and *47Apache Tribes meets the standards of recognized or reservation title, as the Commission determined in citing Miami Tribe of Oklahoma v. United States, 146 Ct. Cl. 421, 439,175 F. Supp. 926 (1959) where this court summarized these standards as follows:
*****
Where Congress has by treaty or statute conferred upon the Indians or acknowledged in the Indians the right to permanently occupy and use land, then the Indians have a right or title to that land which has been variously referred to in court decisions as ‘treaty title’, ‘reservation title’, ‘recognized title’, and ‘acknowledged title.’ As noted by the Commission, there exists no one particular form for such Congressional recognition or acknowledgment of a tribe’s right to occupy permanently land and that right may be established in a variety of ways. Tee-Hit-Ton v. United States, 348-U.S. 272; Hynes v. Grimes Packing Co., 337 U.S. 86; Minnesota v. Hitchcock, 185 U.S. 373.
This court further, in Miami Tribe, held that the grant of the right to permanently occupy and use the land ceded by the Treaty until the Miami Tribe should be disposed to sell that land to the United States was “recognized title” and that whether it was held under recognized title or so-called Indian title or under fee simple title, the land should be valued the same way.
For the purpose of clarity, let us first consider what the United States actually granted the Tribes under the 1865 Treaty before we consider the effect of the Treaty alternative for a limitation of the actual grant by Presidential designation.
The majority finds that “the very language of the grant put the grantees on specific notice that the territorial extent of the grant was uncertain, and yet to be determined.” In my opinion, the language of the grant itself was certain and specifically described, by a careful metes and bounds description, a tract of over 39 million acres for an Indian reservation. In the language of the Treaty this tract was the “country embraced within said limits,” which the Indians agreed “to remove to and accept as their permanent home,” and which has “set apart for the absolute and undisturbed *48use and occupation of the tribes who are parties to this treaty.” Articles III, IV and V of the Treaty refer to this tract as the Indians’ “reservation.” Upon these solemn assurances by their Government in the Treaty, the Indians agree to “relinquish all claims or rights on and to any portion of the United States or territories, except such as is embraced within the limits aforesaid,” including their claim of aboriginal title to over 60 million acres.
Let us now consider the effect of the clause following the territorial grant:
Article II. The United States hereby agree that the district of country embraced within the following limits, or such portion of the same as may hereafter from time to time be designated by the President of the United States for that purpose, viz: * * *. (Emphasis supplied.)
The Indian Claims Commission interpreted that clause as an alternative, granting the President discretionary power to establish such a smaller reservation by Executive Order if at some indefinite future time the circumstances might, in his discretion, require such action.
I agree with this interpretation by the Commission. The use of the word “or” at the very beginning of the clause clearly means that it was an alternative to an otherwise unconditional territorial grant, an alternative which the President “may” exercise, in his discretion. The Commission has found that “[t]'his was never done”, 26 Ind. Cl. Comm, at 112, and I agree.
The majority has attempted to distinguish the case of Klamath & Moadoc Tribes v. United States, 85 Ct. Cl. 451 (1937), aff’d, 304 U.S. 119 (1938), and has stated the facts therein, which need not be repeated except as noted herein. The majority states that in Klamath, “the Tribe had entered into a Treaty in 1864 which permitted them to occupy certain territory ‘until otherwise directed by the President * * *’ ”. This Treaty did not merely permit the Klamath Tribe to occupy the territory.
Article 1 of the Klamath Treaty provided:
That the following described tract, within the country ceded by this treaty, shall, mitil otherwise directed by *49the President of the United States, be set apart as a residence for said Indians [and] held and regarded as an Indian reservation * * *. 85 Ct. Cl. at 454.
The present majority opinion states that “the real point about this Klamath case is that the limitation there involved: ‘until otherwise directed by the President’ did not expressly relate to the territorial extent of the grant, as the corresponding language does here.” I cannot agree; all that I can conclude from reading the language of Article I of the Klamath Treaty as quoted is that the limitation involved did expressly and unmistakably relate to the territorial extent of the grant.
■In the Klamath case, the United States contended that the Indian title to 81,000 acres included in the 1864 Treaty was not permanent or exclusive, but merely a right to occupy the lands, and subject to termination by certain articles of the Treaty of 1864. The court there said: “It is asserted that inasmuch as the treaty provisions set aside the delimited reservation to plaintiff Indians, they to occupy the same ‘until other-wise directed by the President of the United States’, the aet of Oongress talcing the 87,000 acres was an exercise of this power. We cannot assent to the proposition. The President did not exercise any such power if he possessed it. On the contrary, Congress recognized the Indians’ right to the lands and sought to pay for them.” * * * 85 Ct. Cl. at 463, 464. (Emphasis added.)
The factual difference between the present case and the Klamath case is apparent, but in both cases the Treaty required delimitation of a reservation by the President. In effect, the Klamath case says that action by the Congress is not action by the President as required by the Treaty, and to this extent the case is in point here.
The majority opinion notes that the parties have conflicting views as to whether the 1867 Treaty constituted action by the Congress or by the President. However, the majority of the court concludes that: “Actually, we think this is irrelevant, since no recognition of title to any specifically bounded tract occurred in 1865 'and the first such was in 1867.1 cannot agree.
The majority reasons that: “It is not suggested that the Kiowa were so ignorant they actually misunderstood what *50they were getting, or could 'have done so.” This majority conclusion would require us to believe that the Indians could have understood that the 1865 Treaty grant was a mere permissive use of their reservation until the President acted. They must have also understood that the grant in the 1865 Treaty of a “reservation” of ;39 million acres “for their permanent home * * * set apart for the absolute and undisturbed use and occupation of the tribe” was an empty facade of meaningless words, with no substance behind it. I cannot agree that these illiterate “blantet” Indians could have understood this when they agreed to the 1865 Treaty. In my opinion, they understood these words as translated to them, to mean what they mean in plain and unmistakable English.
In my opinion, they had good reason to understand and believe that in 1865 they got recognized title to a 89 million-acre reservation, unless and until the President delimited its area. The majority points out that: “It is only the peculiar mystique of Indian law that allows a question here.” Actually it is not Indian law that allows a question here. It was the white man’s law for Indians, which by 1946 had become so unjust and inequitable to the Indians as to require the creation of the Indian Claims Commission.1 This Commission was given power to determine whether Indian treaties were to be revised on several grounds, including mutual or unilateral mistake, unconscionable consideration, violation of fair and honorable dealings, etc.
Acting under this authority, the Commission has made its decision in favor of the Kiowa, Comanche and Apache Tribes. We are now to reverse this decision basically and in essence because of what the majority thinks the Indians understood or could have understood what they were getting in the 1865 Treaty. There is no peculiar mystique of Indian law that allows a question here, nothing esoteric or mystical about what Indian tribes must understand that they are getting in a treaty with the United States. The Supreme Court of the United States has spelled this out clearly in Peoria Tribe v. United States, 390 U.S. 468, 472 (1968). The Supreme Court, in reversing this court’s judgment stated:
*51As the dissenters in the Court of Claims rightly pointed out,
“Indian treaties ‘are not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers, bnt are to be construed in the sense in which naturally the Indians would understand them.’ United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938). ‘[T]hey are to be construed, so far as possible, in the sense in which the Indians understood them, and “in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.” Tulee v. Washington, 315 U.S. 681, 684-85 * * *”’ 177 Ct. Cl. at 771, 369 F. 2d at 1006-1007.
Our court has recently ruled on an interpretation of Indian treaties: Hebah v. United States, 192 Ct. Cl. 785, 791, 428 F. 2d 1334, 1338 (1970),“* * * Indian treaties should be read, where possible, generously in favor of the Indians. Peoria Tribe v. United States, 390 U.S. 468, 472-73 (1968); Choetaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) ”; and Gila River Pima-Maricopa Indian Community v. United States, 199 Ct. Cl. 586, 467 F. 2d, 1351 (1972), “Indian agreements are to be read as the Indians understood and would naturally understand them.” The closest the majority has come to any recognition of these broad and generous principles of Indian treaty interpretation in favor of the Indians is that “the court is to interpret the Treaty in a manner not prejudicial to the Indians.”
It is in this spirit of strict interpretation that the majority concludes that since no recognition of title to any specifically bounded tract occurred in 1865, and the first was in 1867, the contentions between the parties as to whether the 1867 Treaty constituted action by the Congress or by the President “is irrelevant,” (perhaps just as irrelevant as the majority apparently considered the language of the 1865 Treaty referring to the “absolute and undisturbed use and occupation” of a “permanent home” for the appellees).
The majority quotes from Citizen Band of Potawatomie Indians v. United States, 179 Ct. Cl. 473, 391 F. 2d, 614 (1967), on another point but the quotation is also relevant here as to whether the President or the Congress must act.
*52A fair interpretation of the treaty is that the President would select the 144,000 acres in his capacity as “ Great 'White Father” of the Indians as well as head of the United States Government. A callous disregard of the interests of either would be an abuse of discretion. (Emphasis supplied.) 179 Ct. Cl. at 488, 391 F. 2d at 622.
This relationship of the President as “The Great White Father” to his Indian children has been understood by them ever since their first meetings with officials of the United States, when Lewis and Clark summoned them in 1805 to tribal conferences along the expedition’s historic route of exploration to the Pacific Ocean. The Indians were told then, and have been told ever since that it is their Great White Father (the President) who will punish them if they are bad, and reward them if they are good. I know of no legal authority, and none has been cited by the majority for its unique proposition that it is irrelevant whether the 1867 Treaty constituted action by the President or by the Congress. In my opinion it is clear that the Indians did not understand this.
The Treaty of 1867 was accomplished by a bill (Act of July 20, 1867, 15 Stat. 17) to establish peace with a large number of Indian tribes, including the appellees, as directed by the Congress. No reference was made to the 1865 Treaty in the 1867 proceedings or in the Act. In dissenting from the majority decision of the Indian Claims Commission, Chairman Kuykendall has nevertheless made this point:
The two year period between the signing of the 1865 Treaty and the signing of the 1867 Treaty, although a brief period, is included within a longer period (the tenure of President Andrew Johnson) when the animosity of Congress toward the President was the greatest this country has ever experienced. As we have seen, during the last seven months of this period the President was bereft of power to enter independently into any treaties with Indian tribes or to incur any expense in negotiating a treaty. * * * 26 Ind. Cl. Comm, at 128.
Indeed, when the bill under which the 1867 Treaty was finally accomplished was under consideration by the Senate, it was only because two Senators called attention to the constitutional and legal powers of the President in making Indian treaties that he was even included in the Act as finally *53adopted (as Chairman Kuykendall points out in bis review of its legislative history). In such an atmosphere of unparalleled hostility between the President and the Congress, I cannot agree that it was “irrelevant” as to which one acted under the Act of 1867. At least it was not irrelevant to the Indians, who had been unequivocally assured in the 1865 Treaty that the President would act, and it was upon this specific assurance that they ceded their claim of aboriginal title to 60 million acres of land. It seems late in the day now to tell them for the first time that this was a mere irrelevant consideration after reducing their claim of aboriginal title to 100 million acres to 39 million acres in 1865, and then in 1867 to three million acres.
Both the United States and the Commission dissent contended that the Treaty of 1867 was an “implementation” of the Treaty of 1865 and constituted action by the President in compliance with the 1865 Treaty in designating the reservation as Koyce Area 510. The Commission, after a well-reasoned review of the record, concluded that the President never acted under the 1865 Treaty clause to designate a smaller reservation, and that the 1867 Treaty was not intended to constitute implementation of that .clause. Since the majority opinion has in legal effect, disregarded this aspect of the ease, because it is “irrelevant” whether the President or the Congress acted, no further discussion is now called for by me in regard to the effect of the 1867 Treaty, except to say that 1 agree with the above conclusion of the Indian Claims Commission on this point.
Finally, I accept the conclusion of the Indian Claims Commission that the Treaty of 1865 was “a treaty of recognition, the effect of which was to recognize the title of plaintiff tribes and other friendly tribes to Koyce Areas 510 and 511.” Accordingly, 1 would affirm the grant of the motion of appellee Kiowa, Comanche and Apache Tribes of Indians for summary judgment, leaving the remaining issues for further determination, except the claim of intervenor, the Wichita Tribe and Affiliated Bands and Groups of Indians which I agree with the maj ority opinion, should be denied.
Davis, Judge, and Kunzig, Judge, join in the foregoing opinion concurring in part and dissenting in part.Act of August IS, 1946 (60 Stat. 1049 et seq.)