dissenting.
The United States, in my opinion, is morally and legally obligated to pay for the land in issue in this case. The Executive Order of 1875 by its terms set aside certain land up to the “first standard parallel north” for the use of the Ute Indians “as an addition to the present reservation.” That order alone, of course, could convey no compensable interest to the Indians under the rule of Sioux Tribe v. United States, 316 U. S. 317. But events subsequent to *181the issuance of the Executive Order in this case make inapplicable the principle of the Sioux case. In 1880 the United States and the Ute chiefs and headmen entered into an agreement whereby the latter promised “to use their best endeavors with their people to procure their consent to cede to the United States all the territory of the present Ute Reservation in Colorado.” Congress thereupon passed the Act of June 15, 1880, which recited in its preamble that the chiefs and headmen had “submitted to the Secretary of the Interior an agreement for the sale to the United States of their present reservation in the State of Colorado.” The Act then incorporated the agreement previously made and provided that all unallotted lands should be deemed to be released and conveyed to the United States.
It seems clear to me that by 1880 the term “present reservation” included the land which the Executive Order of 1875 stated had been set aside as an addition to the then present reservation. And when the 1880 agreement and the 1880 Act referred to “present reservation” they must have included that additional land. Adding this informal acknowledgment by Congress of the expanded reservation to the occupation of the land by the Indians and their understanding that it belonged to the reservation, a compensable interest becomes evident. It is immaterial that there were no formal documents conveying a fee simple interest to the Indians; it is likewise irrelevant that there was no formal acknowledgment of the Indian title. Spalding v. Chandler, 160 U. S. 394; United States v. Alcea Band of Tillamooks, 329 U. S. 40. It is enough that the Indians had the right to possess and occupy the land and that the Indians fairly understood that to be the case. An acknowledgment by Congress, however informal, then adds a legal obligation to the moral duty of the United States to pay for the land involved. Such is the situation here.
*182The Court indicates, however, that the Executive Order of 1875 does not mean what it says. It clearly set apart for the use of the Indians “as an addition to the present reservation” all the described land up to the “first standard parallel north.” But it is now suggested that those responsible for the promulgation of that order did not really intend to set aside all the land up to the “first standard parallel north,” despite the explicit language used. It is said, rather, that the order actually was designed to affect only the White River Valley lands—lands which are some nine miles south of the “first standard parallel north.” That interpretation of the intent of the framers of the order would make the northern boundary of the Executive Order land coterminous with the northern boundary of the true treaty reservation.
But there is nothing in the findings of the Court of Claims to justify such an interpretation. To disregard the plain words of the order by subtracting a nine-mile strip from a clearly worded description requires definite findings to that effect which are supported by the record. It is not our function, of course, to supply those findings ourselves. Nor can we infer them from the decision of the Court of Claims. That court alone has the power and the duty to make the necessary findings on material issues. 53 Stat. 752, 28 U. S. C. § 288; United States v. Causby, 328 U. S. 256, 267-268. If it is material that the framers of the Executive Order intended to set aside less land than that described in the order, the case should be remanded to the Court of Claims so that it can make the necessary findings in this respect.
Mr. Justice Frankfurter and Mr. Justice Douglas join in this dissent.