with whom KUNZIG, Judge, joins, dissenting:
This court today has adjudged that the acquisition of the Black Hills from the Sioux Indians by the United States, pursuant to the Act of February 28,1877,19 Stat. 254, was a taking under the fifth amendment of the Constitution of the United States. By doing so, the court has concluded that the unanimous decision of the entire court in Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613 (1942), cert. denied, 318 U.S. 789 (1943), which held that the acquisition in question did not constitute a fifth amendment taking and that the Indians had already been paid, was incorrectly decided, although this result was later twice affirmed. Sioux Tribe of Indians v. United States, 146 F.Supp. 229 (Ct. Cl. 1956), vacated and remanded for further proof (see 182 Ct. Cl. 912 (1968)); United States v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d 1298 (1975), cert. denied, 423 U.S. 1016 (1975). In reaching this result, I believe that the majority has misconstrued the law as laid down by decisions of the United States Supreme Court.
The majority has placed its principal reliance on this court’s decision in Three Affiliated Tribes of Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d 686 *476(1968), which held that the sole factor in determining whether Congress had taken Indian tribal land in violation of the fifth amendment was whether Congress had or had not made "a good faith effort to give the Indians the full value of the land.” Fort Berthold, supra, 182 Ct. Cl. at 553, 390 F.2d at 691. Upon the basis of the history of the acquisition as depicted in the congressional records, the majority has found that Congress had not made such a good faith effort when it acquired the Black Hills from the Sioux. Further, the majority, in following Fort Berthold’s test, contends that the Supreme Court’s decision in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), has no relevance to the question of a fifth amendment taking of Indian tribal land. I respectfully disagree.
Decision of this case requires a careful examination of the scope of the pertinent Supreme Court precedents in this area. The first is Lone Wolf v. Hitchcock, supra, and, initially, I note my agreement with the view expressed in Judge Nichols’ concurring opinion, contrary to the reasoning of the court’s opinion, that Lone Wolf is a precedent applicable to a suit brought for just compensation for an alleged taking of Indian tribal property and that Congress has not excused us from following it. The underlying facts of that case, which the majority admits "were somewhat similar to those here,” were as follows. The Indian tribes’ rights in certain lands, set apart for them in a reservation, had been recognized in a treaty with the United States. The treaty provided that these lands could not be disposed of without the consent of three-fourths of the tribes’ members. Congress negotiated an agreement with the tribes for the allotment of land to individual Indians and the sale of unallotted or surplus lands to settlers. Congress became aware that the requisite number of Indians had not signed the agreement. The Indians protested to Congress that their agreement had been obtained by fraudulent misrepresentations and false promises and that they had been promised much more for the surplus lands by the agents of the Government than the agreement allowed. The agreement, however, with several modifications, but without any change in the amount of compensation for the surplus lands, was enacted by Congress into law.
The Indians immediately went to court seeking an injunction restraining the Government from carrying out *477an unconstitutional deprivation of property rights. The Indians alleged that the value the statute assigned to the surplus lands was far below the land’s actual value and that the statute, if carried out, would result in an unconstitutional taking of their property rights and would deprive the Indians of their property rights without due process of law.
The Court sustained the constitutionality of the statute under Congress’ plenary authority over Indian affairs.1 The Court held that the exercise of plenary authority was deemed political, not subject to control by the judiciary. Thus, the Court would not' and could not examine the charges that Congress had wrongfully exercised its power.
I believe that Judge Nichols, in his concurring opinion, has properly stressed the importance of placing old cases within their historical perspective in order to understand just what in fact they held so that their implications can be properly assessed. Lone Wolfs ruling on due process has substantive aspects which directly relate to the "taking” clause of the fifth amendment as it relates to Indian tribal land.
The due process clause, "nor [shall any person] be deprived of life, liberty, or property, without due process of law,” is broader than the eminent domain clause of the fifth amendment, "nor shall private property be taken for public use, without just compensation,” and necessarily includes the more specific part. I Nichols, Eminent Domain § 4.3 (3d ed. 1976). A holding that a statute does not violate due process implicitly includes the holding that the. eminent domain clause has not been violated.
A difference between the eminent domain and due process protections of significance here is that the eminent domain clause is a restriction on government’s inherent power to take property for public use; whereas due process is also a prohibition on the Government from taking property for private use of third parties. I Nichols, supra If *4784.7. This may very well explain why plaintiffs in Lone Wolf grounded their claim on the due process clause, for the purpose of the appropriation, sale of the tribal land to settlers, might well be considered a private use. Both under eminent domain and due process, however, when the illegal act is already accomplished and cannot be prevented, the plaintiff is entitled to just compensation which includes interest.
There was, however, no discussion in Lone Wolf of the relation between due process and Congress’ plenary power over Indian affairs. The Court simply concluded that the statute was supported by Congress’ plenary power which "has always been deemed a political one, not subject to be controlled by the judicial department of the government.” Lone Wolf v. Hitchcock, supra, 187 U.S. at 565. The Court "must presume that Congress acted in perfect good faith * * *. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.” [Emphasis added.] Id. at 568. The sense of the opinion seems to be that Indian tribal property is simply not protected by the fifth amendment. It may be that the thought then was that due process protects only "persons” and "private property” and that Indian tribes were not "persons” and Indian tribal property, owned communally, was not private property. See Choate v. Trapp, 224 U.S. 665 (1912), and Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902), for the relevance of the distinction between individual Indian land versus Indian tribal land as it relates to due process. What the majority fails to consider is that Lone Wolf held that it was within Congress’ constitutional power to dispose of tribal property without regard to good faith or the amount of compensation.
Subsequent to Lone Wolf, the Supreme Court did recognize that the power of Congress to dispose of Indian tribal property was subject to the fifth amendment. See United States v. Klamath & Moadoc Tribes, 304 U.S. 119 (1938); Shoshone Tribe v. United States, 299 U.S. 476 (1937); United States v. Creek Nation, 295 U.S. 103 (1935); Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919). In Pueblo of Santa Rosa, the Indians sought an injunction to prevent the Secretary of the Interior from selling certain lands as *479public lands to settlers, which lands were claimed by the Indians under title recognized by the United States. The Court ruled that there would be a threatened unconstitutional taking and that the Indians would be entitled to an injunction if Congress had recognized the Indians’ title to the lands in question, and the Court remanded- the case for a determination of that issue.2 In Creek Nation, certain tribal lands were classified as public lands by an erroneous survey and were sold by the United States to settlers. With full knowledge of the facts, the United States refused to cancel the sales and retained all the benefits it had received from the sales. In Shoshone Tribe, Government agents gave tribal lands to other Indians. Congress later ratified this tortious act and recognized the other Indians’ title. In Klamath and Moadoc Tribes, the United States gave individual Indian lands to a state government for roads. Realizing its mistake, the United States transferred Indian tribal lands to the state in exchange for the individual Indian lands. Several years later, the United States paid the tribes some money for the release of their claim. Two cases with similar facts can be added to this collection — Uintah and White River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 152 F.Supp. 953 (1957), and Seminole Nation v. United States, 102 Ct. Cl. 565 (1944), cert. denied, 326 U.S. 719 (1945). Thus, a similar fact pattern emerges in every case: at the time Indian tribal land was appropriated (or appropriation was threatened) by the United States, tribal land was treated as if it had been the United States’ own and no compensation of any form was rendered or even contemplated. The majority, in attempting to support its position, denies this fact by claiming that the Supreme Court has found a taking in one case where some compensation was paid at the time of the acquisition. The majority states:
This has been done where no compensation was originally paid and where the initial compensation was grossly inadequate.7
*480The statement is correct where it says that the Supreme Court has found a taking "where no consideration was originally paid” at the time of the appropriation of land.
The second proposition stated, that the Supreme Court has required payment for a taking "where the initial compensation was grossly inadequate,” is bolstered by the cites to United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119 (1938), and Klamath and Moadoc Tribes v. United States, 85 Ct. Cl. 451, 457-58 (1937), and the statement that "the United States paid $108,750 in related parts of a single transaction * * * for Indian land.” In other words, the taking and payment are suggested to have been just one big transaction and that the United States paid the tribes some compensation at the time of the acquisition.
The facts as found by the Court of Claims do not bear out this conclusion at all. Klamath and Moadoc Tribes v. United States, 85 Ct. Cl. 451, 457-58 (1937). On June 21, 1906, Congress authorized the Secretary of the Interior to give Indian tribal lands in exchange for individual Indian lands it had improperly sold to third parties many years before. The Secretary did convey these lands on August 22, 1906 (the date of taking). "This was done without the knowledge or consent of the plaintiffs and without making compensation. ” [Emphasis added.] Id. at 457. Thereafter, on November 2, 1907, the Secretary recommended that $108,750 be appropriated " 'to compensate them for the lands taken.’ ” Id. at 457. Prodded by this recommendation the Congress on April 30, 1908, did appropriate that sum " 'or so much thereof as may be necessary, to pay the Indians * * * for the lands.’ ” Such payment was conditioned, however, upon an execution by the Indians of " 'a release of any claims and demands of every kind against the United States for the land involved.’ ” Id. at 458; 35 Stat. 70, 92 (1908).
As summarized by the Supreme Court, "[t]hat transfer [the transfer of the tribal lands] was made without the *481knowledge or consent of plaintiffs and without giving them any compensation for the lands so taken from their reservation. Later, however, the United States paid them $108,750 for which they released their claim.” [Emphasis added.] United States v. Klamath and Moadoc Tribes, supra, 304 U.S. at 122.
The actions of Congress were thus not a single transaction but discrete, separate acts, evidenced by separate statutes and developments mentioned in the findings. Compensation was neither rendered nor was any obligation to render any compensation assumed when Congress gave the land in question to others. Therefore, the precedents given do not support the proposition for which they are used. The cases simply stand for the reasonable rule that Congress cannot prevent the legal consequences of its acts by rendering compensation well after the fact, if that payment is not just compensation.
In each of these cases, the courts held that the Government was required to pay just compensation for the taking of Indian tribal property, which was held by recognized title. The Supreme Court did not deny that Congress had plenary authority over Indian tribal property, but found that the exercise of this power was subject to constitutional restraints. The fullest exposition of this doctrine is found in United States v. Creek Nation, supra, 295 U.S. at 109-10, where it said:
* * * The tribe was a dependent Indian community under the guardianship of the United States, and therefore its property and affairs were subject to the control and management of that government. But this power to control and manage was not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it was subject to limitations inhering in such a guardianship and to pertinent constitutional restrictions. It did not enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them; for that "would not be an exercise of guardianship, but an act of confiscation.” Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113; Cherokee Nation v. Hitchcock, 187 U.S. 294, 307-308.
It is within the framework of these opinions that this court decided Three Affiliated Tribes of the Fort Berthold *482Reservation v. United States, supra, which is the basis of the majority’s decision that the acquisition of the Black Hills was a compensable taking under the fifth amendment. Fort Berthold attempted the difficult task of reconciling the various precedents in the area. The court concluded that the question to be determined was whether Congress, in disposing of tribal property, was exercising its power of eminent domain or its plenary power.
It is obvious that Congress cannot simultaneously (1) act as trustee for the benefit of the Indians, exercising its plenary powers over the Indians and their property, as it thinks is in their best interests, and (2) exercise its sovereign power of eminent domain, taking the Indians’ property within the meaning of the Fifth Amendment to the Constitution. In any given situation in which Congress has acted with regard to Indian people, it must have acted either in one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time. [182 Ct. Cl. at 553, 390 F.2d at 691.]
The court examined the pertinent precedents to find a clue to a standard by which the court could determine which "hat” Congress was wearing. Looking at the factual situation presented in Lone Wolf, the court found that Congress had made a good faith effort to give the Indians fair value for their lands. Thus, the court concluded that it must be the presence of this effort that made the disposition an exercise of plenary power and not a taking. Looking at the factual situations presented in the precedents that had found a taking, the court noted the absence of a good faith effort to give the Indians fair value for their lands. Concomitantly, the court decided that the absence of this effort indicates an exercise of the power of eminent domain. In essence, the court concluded that the elusive presence of this good faith effort as found on the facts of Lone Wolf, showed that Congress was acting as a guardian of Indian affairs. The absence of facts similar to those of Lone Wolf demonstrated that Congress was acting as a taker. The factual situations presented in Pueblo of Santa Rosa and its progeny, however, are poles apart from that of Lone Wolf, and the good faith effort standard does not adequately deal with the disparity of the facts nor with the legal distinctions present therein.
The cases which actually held that there had been a taking must be examined both for the Court’s legal *483approach and its relation to the facts before the Court. In Creek Nation, the Court simply stated that the exercise of plenary power is subject to constitutional restrictions. Such could be read very expansively, i.e., that Congress can never deprive Indian tribes of their property without rendering or assuming the obligation to render just compensation. In light of the fact that the Court never overruled, limited, or distinguished Lone Wolf, however, such a broad interpretation is clearly unwarranted. Viewing the specific facts of the cases, we know only that an unconstitutional taking occurs when the land is treated as if it were the property of the United States without any regard or recognition of the property rights of the Indian tribes.
Once the United States recognizes that certain property belongs to Indian tribes, and that the United States must acquire it from those tribes and provide the tribes with something in return, as was the case in Fort Berthold and in our instant case, Pueblo of Santa Rosa and its progeny simply do not answer the question of whether there has been a taking. Fort Berthold postulates that a court may examine the good faith of Congress in acquiring the property to determine if a taking has occurred. Application of such a standard is at odds with Lone Wolf, which clearly provided that though there was a moral obligation to act in good faith, since "Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.” Lone Wolf v. Hitchcock, supra, 187 U.S. at 568. Fort Berthold adopts a standard of review that would overrule Lone Wolf, and this cannot be done by a lower court.
The majority, however, solves this problem by simply contending that Lone Wolf has nothing to do with the taking clause. The majority is the first court to do this. Illogically, however, the majority, has adopted the Fort Berthold standard which was derived from a review of pertinent taking precedents, of which Lone Wolf was one. Further, I believe that the majority has shown its awareness of the hazards attendant to delving into the good faith and decision-making process of a past Congress by stressing, in its evaluation of the question of Congress’ good faith in acquiring the Black Hills, the pronouncements of *484official legislative records. Carried to its logical extreme, if Congress "purports” in official records to give fair value, good faith is established no matter how insufficient the compensation was that Congress paid for the land.
The test laid down by Fort Berthold contradicts itself by its own terms. The court there provided:
* * * Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee. * * * [182 Ct. Cl. at 553, 390 F.2d at 691.]
How can it be said that Congress is simply performing the traditional function of a trustee when it disposes of Indian tribal property for a grossly inadequate amount? This was the standard applied and found to be satisfied in Fort Berthold when Congress exchanged Indian tribal land for approximately 40 percent of its fair market value. Under Fort Berthold’s analysis, good faith was found in Lone Wolf where in the follow-up case, United States v. Kiowa, Comanche and Apache Tribes, 143 Ct. Cl. 534, 163 F. Supp. 603 (1958), cert. denied, 359 U.S. 934 (1959), the amount paid in exchange was less than 50 percent of the land’s fair market value. The standard makes a mockery out of the fifth amendment protections it purports to extend to the tribes, making its effectiveness dependent on an abstract, insubstantial finding.
Nor has Fort Berthold’s liberalized standard had much significance in forming the basis for judgments in favor of Indians up until this case. In Fort Berthold itself, the standard justified judgment for the Indians only on one claim out of many alleged. This was for land (school land) purchased by the United States at a fixed price per acre to be given to state governments for educational purposes. A member of Fort Berthold’s majority in a later review of that case suggested that this holding was wrong. Three Affiliated Tribes of Fort Berthold v. United States, 204 Ct. Cl. 831, 833-34, cert. denied, 419 U.S. 901 (1974). In Confederated Salish and Kootenai Tribes v. United States, 193 Ct. Cl. 801, 437 F.2d 458 (1971), a similar holding on school lands was rendered on the basis of Fort Berthold. Also, a taking was found when the United States acquired *485land for a national bison range, had an independent appraisal of the land, and paid the full appraised value. I simply cannot see how this failed Fort Berthold’s good faith test. In Klamath and Modoc Tribes v. United States, 193 Ct. Cl. 670, 436 F.2d 1008, cert. denied sub nom. Anderson v. United States, 404 U.S. 950 (1971), the defendant conceded that land acquired by the United States had been taken in violation of the Constitution. The court commented that the concession was correct because when the United States acquires for its own benefit it is always a taking. This dicta has been repudiated by the majority today and we agree. For, whether the United States acquires for itself or for third parties, it is the power of the United States that has made possible the unconsented appropriation. Thus, if we were to analyze Klamath and Modoc Tribes today as the majority would have us do, we would arrive at the startling result that when land is appraised and sold to third parties at the appraised value, good faith is demonstrated, while if the United States pays that same appraised value, good faith is lacking.
The law the Supreme Court has laid down governing the legal rights of Indian tribes guaranteed by the fifth amendment is at best ambiguous. I believe that courts must be careful in construing ambiguous binding precedents where the results of liberal construction are enormous judgments against the United States. Cf. United States v. Zazove, 334 U.S. 602, 617 (1948); Pine Hill Coal Co. v. United States, 259 U.S. 191, 196 (1922); Schellfeffer v. United States, 170 Ct. Cl. 178, 343 F.2d 936 (1965). Though it is quite possible current popular attitudes concerning the relationship between due process and Congress’ plenary power over Indian tribal property have changed in favor of the extension of the constitutional protections, it is not this court’s function to advance these attitudes when such an approach cannot be implied without emasculation of Supreme Court precedents.3 Further, Fort Berthold is an *486example of the unsatisfactory or illogical results that are reached when trying to liberalize ambiguous precedent, for the good faith test itself does not achieve a proper approach to the delicate relationship between due process and plenary power. Thus, Fort Berthold is not a proper statement of the law and should be overruled.
The law we should apply is that once Congress has, through negotiation or statute, recognized the Indian tribes’ rights in the property, has disposed of it, and has given value to the Indians for it, that is the end of the matter. Courts should not and cannot investigate and rule on the good faith of Congress in enacting legislation, as the majority opinion does here. The separation-of-powers doctrine, bedrock of our Constitution, is offended by so doing. It would be the same if Congress questioned the good faith of this court’s decisions. Of course, it will be contended that unless we can review the good faith of Congress in what it does we will be allowing it absolute power to ride roughshod over the Constitution. Constitutional questions, however, are not properly resolved by the fuzzy test of good faith. In this instance, Congress exercised its own oversight and recognized a breach of its moral obligations in 1877. Since 1946, when Congress established the Indian Claims Commission, it has made available a remedy to right moral wrongs to Indians. The Sioux Nation availed itself of that remedy to recover $17,553,484 for breach of the moral duty of Congress to them in this particular instance. We have affirmed that judgment. United States v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d 1298, cert. denied, 423 U.S. 1016 (1975).
The conclusion of the majority is that the disposition of the Black Hills in exchange for 900,000 acres of land and a promise to supply rations "until the Indians are able to support themselves,” could not be an exercise of Congress’ plenary power over Indian affairs to foster and protect these people because the official pronouncements of Congress do not explicitly demonstrate that it equated the value of the consideration with the value of the land. Thus, the court presumed utmost bad faith and indifference to the best interests of the Indians. The majority retreats somewhat from its sole reliance on official records as dispositive of Congress’ good faith effort in asserting that "an essential element of the inquiry under the Fort *487Berthold guideline is determining the adequacy of the consideration the government gave for the Indian lands it acquired.” Neither the Supreme Court nor the Court of Claims has ever examined the adequacy of the consideration given in exchange in order to determine if there has been a taking and this is directly contrary to Fort Berthold’s holding.4 In any event, turning from official pronouncements to what Congress actually did, a much different picture emerges. Prior to the acquisition of the Black Hills, Congress had obligated itself by the treaty of 1868 to supply food to the Sioux for 4 years. The expenditure for these rations was over $5 million. Once this treaty obligation had ended, Congress continued gratuitously to supply food for fiscal years 1874 and 1875 at the cost of $2,350,000. In 1875, the Secretary of the Interior suggested that Congress might continue the rations in the future in consideration of certain property concessions by the tribes. It is significant that the report of the Committee on Indian Affairs of March 15, 1876, accompanied a bill which provided for the Allison Commission to negotiate with the Sioux for cession of the Black Hills in return for which the United States would provide the Indians with subsistence for not more than 10 years. Based on prior experience, at a cost of one and one-quarter million dollars a year, certainly the Senate committee contemplated a substantial consideration of around $12 million which could be committed to the Indians by the Allison Commission. This $12 million is not so far off from the value of the Black Hills found by the Indian Claims Commission in 1976.
Congress, therefore, was well aware of the past cost of the obligation to feed the Sioux and it is obvious that this cost was reasonable evidence to Congress of the magnitude of the obligation to supply rations. Congress, however, went far beyond the Senate committee’s recommendation to supply food for 10 years and assumed an open-ended obligation in exchange for the Black Hills in the 1877 Act. The majority’s view that the rations were not consideration for the Black Hills is untenable. What else was the money for? Such an obligation by the United States Government, *488though it might be difficult to value in terms of the marketplace at that time, has been of inestimable value to the Indians. Performance of this promise spanned several generations and in dollar terms was many times the Indian Claims Commission’s valuation of the lands acquired by the United States.5 The court has admitted as much. Congress added to the Sioux reservation 900,000 acres of land as well, in exchange for the Black Hills. Where is there evidence showing that Congress did not believe, based on its judgment, that this exchange of land for food, rations, provisions, and other land was in the best interests of the Sioux? And yet, the majority determines that Congress was not properly exercising its plenary powers to foster and protect the Sioux in this instance, while it was in Fort Berthold and Kiowa, Comanche and Apache Tribes, where it exchanged tribal land for less than half of its fair market value!
The large judgment previously rendered in favor of the Sioux under the "fair and honorable” dealings section of the Indian Claims Commission Act, 25 U.S.C. §§ 70-70w, was for the full value of the Black Hills and other claims. Congress, by legislation, 88 Stat. 1499, 1500 (1974), 92 Stat. 153 (1978), has provided that the value of the food, rations, and provisions, which are otherwise properly an offset to this judgment, will not be taken into consideration as payment on the claims. The court goes another step and quite properly declares that, while there can be no such offset, the same statutes do not bar the cost of food, rations, and provisions from being treated as consideration for the land, though it improperly, I think, concludes that these millions were not consideration. Thus, under statutory authority, the Sioux tribes are entitled to, and will receive, $17,553,484, which was.the amount granted by the 1976 judgmént of the commission, affirmed by this court. However, Congress has never permitted the award of interest on such statutory or moral claims, though it *489certainly could have. Therefore, this court is only authorized to grant interest on the claim upon a finding of a constitutional violation under decisional law. The court now holds, based on very ambiguous precedent, that the Indians are entitled to extra compensation in the form of simple interest at the rate of 5 percent for over 102 years for a "taking.” This results in a staggering judgment of approximately $105,000,000. Such a judgment is the product of a distorted conception of the precedents, as I have shown.
A proper result reached by strict application of the Supreme Court’s decisions, which would determine that the claim is solely statutory, would not prevent these Indians from receiving a major judgment for a moral claim. This is not a case where the court must stretch in order that plaintiffs can recover at all. The circumstance which demonstrates a clear wrong in terms of today’s perceptions of what is moral, fair, and honorable, presented here a claim under the Indian Claims Commission Act on which the Indians have prevailed. If Congress thinks that plaintiffs are entitled to more money for the wrong their ancestors suffered, it can make such an award as a gratuity. This would be in further hindsight redress of its behavior 102 years ago in exercise of its plenary powers to bring peace to the Black Hills under difficult circumstances we can today hardly appreciate. But, there is just no clear and reliable precedent for the court to find a taking, which would provide plaintiffs approximately $90 million additional in interest, as a matter of law. The court has said before, in well-considered opinions which the Supreme Court declined to review;, that there was no taking here. The facts have not changed. We have been offered no new evidence. There is no justification for appearing to yield now to pressure in this matter to cloak an award with the trappings of judicial authority that does not clearly exist. The separation of powers militates against it. I reject the court’s holding that its result is legally mandated. Plaintiffs have been paid twice on their claim: first, by the 1876-77 Congress and its successors in providing the huge subsistence payments and, second, by being given full value for their rights in a judgment by the Indian Claims Commission, which we have affirmed, and the defendant does not now contest.
*490For all of these reasons, I respectfully dissent from the opinion and judgment of the court, except for part V of the opinion which rejects plaintiffs’ claim that removal of gold by trespassing miners was a taking by, or ratified by, the United States.
The only provision in the Constitution specifically dealing with Indians is found in U.S. CONST, art I, §8, cl. 3, which grants Congress the power:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
In United States v. Kagama, 118 U.S. 375 (1886), however, the Court recognized that the Federal Government’s power over Indian affairs is broader than this provision, being derived from the inherent duty to protect and foster these dependent people.
In United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119 (1938), *480the United States paid $108,750 in related parts of a single transaction (see Klamath and Moadoc Tribes v. United States, 85 Ct. Cl. 451, 457-58 (1937) for Indian land which this court later found to have been worth $2,980,000. The Supreme Court held that there was a constitutional taking for which just compensation had to be paid, including interest. See 304 U.S. at 122, 123-25.
It is well settled that Indians have a protected property interest only in lands held under title recognized by the United States and not for lands held under aboriginal title. See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).
The extreme to which the court goes in undoing the Supreme Court’s decision in Lone Wolf is illustrated by its need to rely on a dissenting opinion of the Court of Claims where this issue was not even presented as authority to modify the Lone Wolf principle that courts cannot examine the adequacy of the consideration Congress gives for Indian lands taken. United States v. Sioux Nation, supra, 207 Ct. Cl. at 250, 518 F.2d at 1307.
See note 3 supra.
An 8-volume report by the General Accounting Office, numbering over 4,300 pages, accounts for over $109 million disbursed to the Sioux up to June 30, 1925. Of this amount, $36,930,367 represented charges against the 1877 Act and, in addition, there was almost $16 million in gratuities. The record before us does not bring these coste up to date. The majority opinion states that the Government has expended $43 million on rations and provisions for the Sioux but does not state for what period. Defendant uses a figure of $57 million.