concurring in part and dissenting in part :
I agree with that part of the court’s opinion which affirms the decision of the Indian Claims Commission to the effect that the Aleuts had neither fee simple nor recognized title to the land in question; that they did not have any property rights in the seals or other wild animals on the land or in adjacent waters, nor the fish in the sea, as such animals and fish were owned by the Government; that if the Aleuts had any claim to the land, it was based on rights akin to aboriginal title which were extinguished by the Alaska Native Claims Settlement Act, 85 Stat. 688 (1971); that all claims based on or derivative from aboriginal title were also extinguished by the 1971 Act even if stated as a claim for breach of fair and honorable dealings under the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. § 70; and that the denial by the defendant of local self-government to the Aleuts, and the prevention of their leaving St. Paul Island, and of others landing there, are not compensable elements of damages. These holdings by the court are dispositive of this case and requires the decision of the Commission to be affirmed in its entirety.
I do not agree with that part of the court’s opinion that indicates that the Aleuts have alleged a cause of action under the “fair and honorable dealings” clause of the Indian Claims Commission Act, and remands the case to the Commission to hear evidence under that theory. The Commission quotes the following from the petition of plaintiffs as illustrative of their claims under the fair and honorable dealings clause:
Defendant and its agent failed to conform to the foregoing standards of fair and honorable dealings in that, among other acts and omissions, they (1) failed to protect the hunting and fishing operations of the petitioner community; (2) used the need to limit the killing of seals, as an excuse for reducing the payments made to petitioner to figures unconscionably less than the skins were worth; (3) allowed lessees to profit greatly at the expense of the petitioner community and to subvert the government of the said community; (4) entrusted decisions concerning compensation of the petitioner com*203munity to employees and agents who received bribes and gifts from companies interested in the disposition of seal furs; and (5) profited unconscionably at the expense of its wards.
As a matter of fair and honorable dealings, defendant and its agents should have given the possessions of the petitioner the same respect and protection that other groups of Indians in territories ceded under similar treaties were entitled to demand; defendant should have carried out the promises made by its representatives that petitioner community and its members would enjoy all rights of citizenship; defendant should have insisted that its agents and lessees refrain from meddling in the local government of petitioner; defendant should have exercised the vast powers which had been entrusted to it, for the conservation of the seal herds and for the pro* tection of native livelihoods, solely for those purposes, and should not have used such powers in ways designed to coerce petitioner community and its members to accept the role of asylum inmates that was assigned to them by the defendant’s agents and lessees. [27 Ind. Cl. Comm. 177, 183.]
These allegations, for the most part, are based on the claims of the Aleuts that they had fee simple, recognized or aboriginal title to the land, and that they had property rights in the seals and fish in the area. As pointed out above, these claims, and all claims derivative from them are correctly denied by the Commission and the court. To the extent such claims are not based on the foregoing, the allegations are far too general and speculative to show any obligation on the part of the Government nor any breach of duty on its part. There was never any treaty or agreement between the Aleuts and the Government, and, consequently, the Aleuts never became wards of the Government and the Government never became legally obligated or bound to do anything for them. Therefore, there was no breach of duty that would be a violation of the fair and honorable dealing clause.
The court points to the statutes of 1870 and 1910 whereby the Congress in unilateral and voluntary actions, to which the Aleuts were not parties, gave the Secretaries of the Treasury, and of Commerce and Labor, respectively, the discre*204tionary authority to furnish food, shelter, fuel, clothing, and other necessaries of life to the native inhabitants of the islands, and to provide for their comfort, maintenance, education, and protection. This authority was permissive only and not obligatory and amounted to nothing more than a provision for the possible furnishing of gratuities to the natives. If the Secretaries, respectively, did not furnish such gratuities, in the exercise of their discretion, there was no breach of any enforceable duty by the Government. Under these circumstances, the Aleuts, as donees of such gifts, must take them as they are, regardless of defects in quality or quantity. As the old saying goes, a donee “does not look a gift horse in the mouth.”
The claims here are very similar to those made by the Indians in the case of Gila River Pima-Maricopa Indian Community v. United States, 20 Ind. Cl. Comm. 131, aff'd, 190 Ct. Cl. 790, 427 F. 2d 1194 (1970), cert. denied, 400 U.S. 819. In that case the plaintiffs claimed that the Indians were wards of the Government and that the Government had breached a duty by failing to furnish them with adequate educational, medical, and health services, and that it “undertook to, and did, subjugate petitioner under wardship to a stagnation of self-expression * * * [and] bridled petitioner into cultural impotency.” [Id. at 792, 427 F. 2d at 1195.] The foregoing quotation from the claim in that case is very similar to the claim in plaintiff’s petition in the instant case quoted above where it is alleged that the Government used its powers “in ways designed to coerce petitioner community and its members to accept the role of asylum inmates.” In the Gila River case, supra, this court rejected the claims of the Indians, saying:
Appellant admits that there was no treaty, agreement, order or statute which expressly obligated the United States to perform these services. This, we feel, is fatal to appellant’s case. * * * [Id. at 797, 427 F. 2d at 1198.].
In my opinion, that is the situation here. The Commission said, in effect, that in the instant case there was nothing more than “purported moral lapses” on the part of the Govern*205ment, as was the case in the Gila River case, supra, and that such lapses are not compensable under the fair and honorable dealings clause of the Indian Claims Commission Act. I agree, except that I would go further and hold that what happened in this case did not even amount to “purported moral lapses” on the part of the Government.
It should be pointed out that Congress appropriated almost one billion dollars in connection with the 1971 Act to pay the natives of Alaska for their land claims and other derivative claims. It is assumed the plaintiffs in this case will share hi that appropriation if they can prove they have aboriginal title to the land involved here. Consequently, if they have legitimate claims, they are not without a remedy.
I would affirm the decision of the Commission in its entirety and dismiss plaintiffs’ petition.
ON Appellants’ Petition for Behearing and Amendment of the Opinion
The court, by order dated September 28, 1973, denied appellants’ petition for rehearing and amendment of the opinion. Judge Davis, with whom Judge Kunzig joined, added the following remarks to the order:
“I concur in denying the petition for rehearing. With respect to Professor Berman’s affidavit, I wish specifically to point out that the meaning of ‘prescription’ in the Kost-livtzov memorandum was discussed in the briefs and at the oral argument; the possibility that that term might well be the equivalent of aboriginal Indian title in American Indian law was expressly adverted to both in the briefs and at the oral argument. Under General Electric Co. v. United States, 189 Ct. Cl. 116, 416 F. 2d 1320 (1969), appellants should have presented any further material they desired the court to consider before the decision, not after. ‘The court has a right to know before it decides whether the parties have anything further to present’.”