dissenting:
This decision means that the United States, having lost the crucial battle, nevertheless wins the war. As the court points out, the Government was well aware for a very long time that these Indians were claiming both the value of the land as of the extinguishment of Indian title (which they said occurred in 1886) and also “trespass damages” for minerals removed before that date. Despite this clear knowledge, “in the proceedings below [before the Indian Claims Commission] at no time did defendant-appellant {"the Government] properly propose its alternative theories of the date of taking when the issue was pending before the Commission and seek to convince the Commission that the weight of the evidence in the record supported one or another of such theories. Likewise, at no time did defendant-appellant actively and properly oppose the taking date proposed by petitioners and found by the Commission.” United States v. Fort Sill Apache Tribe, 202 a. Cl. 134, 143-44, 480 F. 2d 819, 824 (1973). “As it was, the entire valuation trial centered on the 1886 date which the Government first disputed after the completion of that trial.” 202 Ct. Cl. at 145, 480 F. 2d at 825.1
I had thought that the gist of our 1973 decision was that, in those circumstances, the Government could not go behind the 1886 date which had to be accepted for all purposes as the proper date for the extinguishment of Indian title. We did observe that the record could be said to establish that Indian title was in fact cut off in 1876, but we brushed that conclu*444sion aside because the Government’s conduct of the litigation amounted to a waiver of the right to challenge the 1886 taking date. 202 Ct. Cl. at 141-42, 480 F. 2d at 823.
It follows, I think, that we are prevented by the law of the case and the doctrine of collateral estoppel from considering, directly or indirectly, that 1886 was too late a date or that value as of that time embodies enhancements for which the Government should not be held liable to these Indians. We have to act on the present appeal as if on the record of these cases 1886 was the truly correct date for the extinction of aboriginal title. On that basis I would affirm the Commission in granting “trespass damages.”
Since the court does not deal at length with the pristine case of “trespass damages” — which is how I believe we must look at the instant appeal — I merely sketch my position that they are awardable. The Government centers its disagreement on the proposition that any proof of extraction of minerals, under the auspices of the United States, prior to the “taking” date would necessarily demonstrate the extinction of Indian ti tie before that time and accordingly would conflict pro tanto with the “taking” date. The flaw I find in that argument is that it neglects the controlling standard that aboriginal title is not cut off until Congress (or the executive as its authorized delegate) decides, expressly or implicitly, that Indian title should be ended. Intrusions onto Indian land, even authorized intrusions, do not have that effect unless Congress also intended them to end, or treated them as ending, the aboriginal ownership. That intention is the ultimate touchstone, not the physical or historical facts of governmental intrusions or incursions uncomiected with a purpose, implied or specific, to close out Indian title at that particular time. See United States v. Santa Fe Pac. R. R., 314 U.S. 339 (1941); Tlingit & Haida Indians v. United States, 147 Ct. Cl. 315, 177 F. Supp. 452 (1959), decision on valuation after remand, 182 Ct. Cl. 130, 389 F. 2d 778 (1968); Edwardsen v. Morton, 369 F. Supp. 1359 (D.D.C. 1973). It would be quite possible, for instance, for Congress first to allow entries under the mining laws and then, some years later, to enact a statute terminating as of that time the Indians’ aboriginal ownership of the same lands. In such a situation the value of the minerals removed before the final *445“taking” date would be recoverable by the Indians as “trespass damages.” Cf. United States v. Goshute Tribe, 206 Ct. Cl. 401, 512 F. 2d 1398 (1975).
In that type of case — where mineral or other natural property is removed from aboriginal land (prior to Indian-title extinction) by, or under the direct 'auspices of, the United States— the claiming Indians need not prove any “special relationship” with the United States to recover under the fair-and-honorable dealings clause. The injurious act is that of the United States itself, and it is less than, fair and honorable for the Government to remove minerals (without proper compensation) from land which is still possessed by the Indians (whether by recognized or by aboriginal title).
In this case, we are required, as I have suggested, by our 1973 decision to treat 1886 as if Congress had at that time passed a joint resolution ending the Indians’ title although there had already been substantial intrusions for a decade before that time. The value of the minerals removed as a result of those intrusions constitute the “trespass damages” awarded by the Commission.2 That tribunal had substantial evidence to support its figure and the royalty method it used is acceptable. There is no reason to believe that the value of the minerals was counted twice. See United States v. Goshute Tribe, supra, 206 Ct. Cl. at 406-07, 412, 512 F. 2d at 1400, 1403.
Tlie court pointed out that the Indians might -well have introduced other or additional evidence if they had been alerted that the Government was challenging the 1886 date. Likewise, the Commission might have decided differently if it had been made aware that the 1886 date was in contest. 202 Ct. Cl. at 145, 480 F. 2d at 825.
In tie Goshute Tribe, sudpra, 206 Ct. Cl. at 409-10, 512 F. 2d at 1402, the court recognized both a general “taking” date (1875) and also the value of the minerals previously extracted. There was in that case a treaty permitting exploration of the Indian lands for minerals. Because I believe the existence of such a treaty to be unnecessary, I would apply the same rule as in Goslmte to situations where there is no treaty but where there is extraction of minerals by the united States or under the Government’s sponsorship, prior to a general “taking” of the aboriginal land.