(dissenting in part).
I dissent from that part of the majority opinion which reverses the Indian Claims Commission as to the two segments of the Royce Area 357 which the Commission excluded from any claim of title by the appellants.
As to these two segments the Commission found as a fact that the evidence does not establish any exclusive use and occupancy of these areas by either of the appellant bands, and that therefore their claim of original Indian title to this area must fail. The Commission added that there is evidence that the petitioner Chippewas did travel over the area to British outposts at Rainy Lake to obtain ammunition for warfare against the Sioux. The Commission found that this, of course, is not sufficient proof of Indian title.
The majority opinion takes the position that proof of any form of Indian title or continued occupancy or use was unnecessary primarily because of the language of Article V of the Treaty of October 4, 1842. In other words, the part of the majority opinion which reverses the Commission as to the two segments rests almost altogether on the provisions of Article V of that Treaty and some other scattered comment. The Article is quoted in the majority opinion. It will be noted that the language which the majority opinion underscores is in one of the “whereas” clauses and not in the cession or determinative part of the Treaty.
The basic part of the Article and the main object of the Treaty was the pro*915vision that all the funds which largely-consisted at that time of a distribution of the funds made available by the cession of Area 261, as well as a distribution of the annuity payments due by the treaty then being executed, “shall henceforth be equally divided among the Chippewas of the Mississippi and Lake Superior, party to this treaty, so that every person shall receive an equal share.”
The other part of the Article was of a general nature and not specific enough to obviate the necessity of establishing Indian title in the normal way. The different tribes of Indians had been fighting among each other and this Article was largely intended as as assurance that the annuities derived from Area 261 and any annuity under the Treaty then being executed are funds flowing from any unceded lands “belonging to the aforesaid Indians, or hereafter to be held in common.”
This was not intended to be a cession of title to lands in which the Indians did not have a claim. Surely this was not intended as a full recognition of title and ownership to all the land between Lake Superior and the Mississippi River without any definite limits north or south which would include many millions of acres. Certainly this statement of a general nature in the first clause of Article Y should not be construed as suifi-cient to accomplish such an end and to cause such a recognition of title in the appellant tribes to the entire area as would obviate the necessary proof of Indian title. The recognition must be clear, explicit, and intentional, and the boundaries must be sufficiently described to enable calculation of acreage with reasonable certainty.14
When the provisions of Article V of the Treaty of 1842 are read in connection with the other Articles of that Treaty and with the provisions of the other treaties to which the provisions of the Treaty of 1842 make reference, it becomes apparent that the sweeping language of the first part of Article V was not meant to recognize ownership of all that vast area but only as to such of that inclusive area as the background proved they had title by occupancy and use and such additional lands as had been actually ceded to them. This and the other treaties disclose that there were many other tribes who had an interest in this area, some of which were described by metes and boundaries. There were also interests of other Chippewa tribes.
The Commission also found as a fact that in aboriginal times there were two divisions of Chippewas who owned separate and distinct tracts of land within Royce Area 357. These two bands included what is now the three appellant, bands.
Many of these facts found by the Commission and certain provisions of other treaties should not be disregarded because of some general language of recital in a whereas clause of one article of a treaty.
I would approve that portion of the opinion, order and conclusion of the Indian Claims Commission which excludes-the two segments of Royce Area 357 from any claim by the appellant Minnesota Chippewa Tribe and the bands, for whom the action is brought in a representative capacity.
I dissent from that part of the majority opinion. In all other respects I concur in the conclusion reached by the majority.
WHITAKER, Judge, joins in the dissent.
. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955). See also Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 65 S.Ct. 690, 89 L.Ed. 985 (1945).