(dissenting):
I respectfully dissent. I cannot agree with the reasoning of the majority nor with the result they reach. In my opinion, the Indians in this case, along with other Southern Ute tribes, were paid $31,938,473.43 in 1950 for the identical land involved here, together with other lands. This was the largest judgment ever awarded by this court since it was established in 1855. The attorneys who represented the Indians in the recovery of this tremendous judgment received an attorney fee of $2,800,000. See Confederated Bands of Ute Indians v. United States, 120 Ct.Cl. 609 (1951). As will be seen in the following pages, the same Indians and the same attorneys are before the court again in this case asking that they be paid again (twice) for the same land, and the opinion of the majority is going to allow them to get this double payment. This results, in my opinion, in a shocking giveaway of millions of dollars of public money of the United States, and I cannot agree to it.
The overriding error in the opinion of the majority is the failure to honor the doctrine of res judicata. The crucial issue is whether the lands now at bar were included in the judgment of this court in Confederated Bands of Ute Indians v. United States (Nos. 45585, 46640, 47564, 47566) 117 Ct.Cl. 433 (1950), in which, as stated above, the plaintiff and other Ute Indians were'awarded over 31 million dollars in settlement of all of their claims, including those involving the lands in this case.
The judgment in No. 46640 (of over six million dollars) was entered pursuant to a stipulation signed by the attorneys for both parties to the law suit including the attorneys for the plaintiff in the present suit. Using language as clear and unambiguous as is possible in the English language, the plaintiff Confederated Bands (which included the present Southern Ute Band, appellee in the suit before us) entered into a complete release, ex-tinguishment and settlement of any and all of their claims regarding the land then at bar. The parties agreed that: •
* * * [JJudgment * * * shall be entered in this cause as full settlement and payment for the complete extinguishment of plaintiffs’ right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold for cash between July 1, 1910, and June 28, 1938, (b) disposed of as free homesteads from December 19, 1885, to June 28, 1938, and (c) set aside for public purposes during the period from *364June 30, 1910, to June 27, 1938. The plaintiffs concede that due and proper accounting has been made by the defendant to the plaintiffs for those lands sold for cash during the period from June 30,1910, to June 28,1938. * * * [Emphasis supplied.] {Id. at 436-437.]
The stipulation then went on to describe a “Schedule 1,” which contained the legal descriptions of approximately 1,523,236.-95 acres of land embraced by the stipulation, saying: “So far as the parties with diligence have been able to determine these descriptions represent all the land so disposed of and set aside.” {Id. at 437.] This Schedule 1 contains 338 pages of single-spaced, typewritten legal descriptions of land. A land expert would find it difficult, if not impossible, to make sense of this Schedule 1. Even if he were to analyze it, months of his time would be required in the process. When confronted with the schedule of lands pursuant to settling case No. 46640, the government only ran a spot check of the schedule, and concluded that while there were errors, it was impractical to continue the examination. Evidencing an obvious lack of reliance on the correctness and completeness of Schedule 1, the stipulation signed by both parties went on to state:
* * * However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but, whether included therein or not, also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 (21 Stat. 199), and by the defendant during the aforesaid periods of time sold for cash, disposed of as free homesteads and set aside for public purposes. * * * [Emphasis supplied.] {Id. at 437.]
One searches in vain for a more clear, a more precise, a more final disposal and release of claims, than the one just quoted.
As stated earlier, the key issue now is whether the lands presently at bar, lands from Royce Area 617 in southwestern Colorado, were included in this all-inclusive 1950 settlement. To determine this, one must analyze the history of the lands at bar, to determine whether these lands are part of the “land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 * * * ”
The majority has explained the history of this land prior to 1880. To avoid being repetitious, I will start my analysis at 1880. The agreement of 1880 which resulted in the Act of 1880 was inspired by the so-called Meeker Massacre of 1879, in which an Indian agent and others were killed by certain Utes. The government sought to pacify the nomadic Utes by domesticating them, to the extent that each Indian would be given an allotment of agricultural land, upon which he would be converted from a nomad to a farmer. The vast majority of the 1869 Ute Reservation was not suitable for agricultural purposes; therefore, other lands had to be found. So under the Act of 1880, the Uncompahgre Utes were to move to agricultural lands on the Grand River in Colorado and Utah, and there receive their allotments. The White River Utes were to move to agricultural lands on the Uintah Reservation in Utah, and there receive their allotments. There was some suitable agricultural land in southwestern Colorado along the LaPlata River, and it was to this area that the Southern Utes were to move and receive their allotments. Section 3 of the 1880 Act authorized the Secretary of the Interior to survey the lands in the vicinities mentioned, and then the Commissioners were to cause allotments to be made to each and every Indian. Then the Act states, in clear, precise, and totally unambiguous language :
* * * {A~\nd all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject *365to disposal under the laws providing for the disposal of the public lands, * * *. [Act of June 15, 1880 (21 Stat. 199).]
Clearly (it could not be stated more clearly), the surplus of the lands after allotments were made was conveyed to the government by the 1880 Act. Therefore, the words in the 1950 ease No. 46640, “ceded by plaintiffs to defendant in 1880,” words which are descriptive of the lands involved in the 1950 settlement, include the lands presently before the court, and the doctrine of res judicata bars any further recovery.
Another look at the purpose of the 1880 Act reaffirms this conclusion. No new reservations were created by this Act. Rather, each tribe was merely moved to a certain area of land, out of which the tribe members were to receive individual allotments. No Uncompahgre Reservation was set up in Colorado and Utah, no White River Reservation was established in Utah, and no Southern Ute Reservation was established in southern Colorado.
How do appellees, the Southern Utes, try to get around this clear language? This is a difficult question for them to answer, and several different theories have been pressed upon the court at various stages of these proceedings. In its brief, the appellees say that the converse of the plain terms of the 1880 Act is true, namely, that the land now at bar was set apart and ceded to the Indians by the 1880 Act. This is patently insupportable by the clear terms of the 1880 Act.
The second theory was advanced when this case was first up for oral argument in 1967, and counsel for appellees made a straightforward and honest acknowledgement in open court that the lands at bar were indeed ceded to the government in 1880, but were in effect receded to the Indians by the Act of 1895. In light of this acknowledgement, the court entered an order of remand for the taking of additional evidence as to the intention of the parties to the 1950 stipulation. Apparently realizing the devastating damage that this acknowledgement did to their case, and that they could not prevalid under it, appellees’ counsel later said that the court “misconstrued” the acknowledgement, and sought to explain it away in its Motion to Vacate Order of Remand. The court did not misconstrue the statement. I was present and heard counsel make it. To clear the record, an examination of the 1895 Act to bring to light its true effect and purpose is in order. Unlike the Uncompahgre and White River Utes, who soon went to the land set aside for them and took allotments, the Southern Utes resisted allotments. Apparently, the life of the farmer did not appeal to them, so they continued living in a nomadic state within the bounds of the land set aside for their allotments. In 1888 they attempted to negotiate a settlement to move to Utah, but this was not ratified. So here the Southern Utes were, living within a land area, but refusing to take allotments as directed by the Act of 1880. To verify this, we have only to look at appellees’ own evidence in this case. Exhibit No. 5 before the Indian Claims Commission contained a copy of a report dated April 28, 1894, from the Commissioner of Indian Affairs to the Congress. Speaking of the Southern Utes’ presence on the land set aside for allotments by the Act of 1880, the Commissioner said, “Here they have remained ever since, being in the anomalous condition of having ceded their reservation and yet remaining upon it.” The Commissioner in 1894 clearly understood the stalling tactics of the Southern Utes, and saw the necessity for bringing an end to this “anomalous condition.” And indeed, it was to end this condition that the Act of 1895 was passed. This Act did not change the 1880 Act; the declared purpose of the 1895 Act was that “* * * [T]he treaty made with said Indians June fifteenth, eighteen hundred and eighty, be carried out as herein provided, and as further provided by general law for settling Indians in severalty.” [Act of February 20, 1895 (28 Stat. 677).] *366[Emphasis supplied.] A reading of the Act of 1895 makes it manifestly apparent that no cession, no reservation was encompassed. Rather, the Indians who would take allotments were given them, and those who refused were moved to a reservation in New Mexico and western Colorado. (This is the present site of the Ute Mountain Reservation — this land is not in issue in the case now before the court.) The remainder of the land in Royce Area 617 after allotments were assigned (this is the land at bar) was opened for settlement under the homestead laws for the first time. (It should be noted that the sale of the land under the homestead laws was a violation of the Act of 1880. That is why, I believe, the 1950 settlement with the Indians included land “ * * * disposed of as free homesteads from December 19, 1885, to June 28, 1938, * * [Id. at 437.]) So any argument that the land was receded to the Indians in 1895 cannot be sustained.
This leads directly to the third theory advanced by appellees regarding its retention or acquisition of the lands presently before the court. This theory, set forth in the Motion to Vacate Order of Remand and in the most current oral argument before the court, states in effect that the lands were “set-aside” in 1880, and officially recognized as Southern Ute lands in the Act of 1882. This argument, just as the prior arguments, misses the mark. The first half of this argument is true. The lands were indeed set-aside in 1880, but as we have shown, only for the purpose of taking allotments. The remainder after allotments was released and conveyed to the United States, and therefore clearly within the 1950 settlement with the Indians (Case No. 46640). The second part of the argument is a misinterpretation of the clear terms and purpose of the Act of July 28, 1882 (22 Stat. 178). By the time of this Act, the Uncompahgre and White River Utes had moved from the former Colorado Reservation to the areas set aside by the Act of 1880 for their allotments. Therefore, this vacated land area was now ready for settlement, and the Act of 1882 was passed to open this area for disposal under the terms of the Act of 1880. But the Southern Utes were still (and for thirteen more years continued) stalling, so the remainder after allotments of their set-aside land area was not ready for settlement. The government wished to keep this set-aside area intact for allotment purposes until allotments were made, so paragraph two was inserted in the Act of 1882, to provide for the surveying of a line between the lands opened, and the lands set aside for allotments. Keeping this area temporarily intact for allotments was the sole purpose and sole legal effect (before the majority opinion of this court in this case) of the Act of 1882. There is again a complete absence of any words of cession or reservation. Therefore, this theory advanced by appellees is without merit.
In fact, no theory has been advanced by the Southern Ute Indians which would enable us to uphold the opinion of the Indian Claims Commission. Rather, the government has successfully shown that the Commission’s opinion must be reversed. The 1950 settlement (117 Ct.Cl. 433, 436) is applicable, because the lands at bar were included in that case. The appellees are absolutely bound and barred by the 1950 ease; the doctrine of res judicata cuts them off. Any other conclusion would be a violation of the Supreme Court’s holding in United States v. Wm. Cramp & Sons Ship & Engine Building Co., 206 U.S. 118, 128, 27 S.Ct. 676, 51 L.Ed. 983 (1907), where the Court said:
Stipulations of this kind are not to be shorn of their efficiency by any narrow, technical, and close construction. The general language “all and all manner of debts,” etc. indicates an intent to make an ending of every matter arising under or by virtue of the contract. If parties intend to leave some things open and unsettled, their intent so to do should be made manifest. * * * [Id. at 128, 27 S.Ct. at 678-679.]
*367The language of the 1950 stipulation is even clearer, more all inclusive, and more final than that quoted by the Supreme Court. It says that the judgment entered in that case is res judicata, “not only as to the land described in Schedule 1, but, * * * also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 (21 Stat. 199), and * * * disposed of as free homesteads * * To tie up all the loose ends, this court in 1950 went even farther, and said “ * * * The petition of plaintiffs herein shall be deemed amended to conform to this stipulation.” [Id., 117 Ct.Cl. at 437.] The comprehensive terms of the stipulation for judgment in ease No. 46640 show an intent to clean up and close up every claim arising out of the government’s dealings with the Ute Indians and their former Colorado Reservation land. There is no manifestation of an intent to reserve any claim. Appellees’ present claim falls squarely within the four corners of the 1950 settlement, and has therefore already been settled, paid, and extinguished.
And, the tribe is further bound because of the concession it made in this 1950 stipulation. The stipulation, accepted by this court and the parties to the suit, read “The plaintiffs concede that due and proper accounting has been made by the defendant to the plaintiffs for those lands sold for cash during the period from June 30, 1910, to June 28, 1938.” At the time this concession was made, the GAO Report for case No. 46640 had been mailed to the attorneys for the Southern Utes. This report (Def’s Ex. No. 21) included sales from the Southern Ute portion of the 1880 cession under the Act of 1895. The Tribe conceded that this accounting was due and proper. (Sales from the Southern Ute portion of the 1880 Cession up to 1910 were accounted for in case No. 30360 (45 Ct.Cl. 440 (1910))).
The Indian Claims Commission dismissed this crucial factor, saying that the amounts included were merely errors on the part of all concerned. These “errors” amounted to $215,989.95 paid under section 3 of the Act of 1880, and $215,977.58 paid under section 5 of the Act of 1895. The true error here was made by the Commission in not recogniT;ing the true nature of this former compromise and settlement of appellees’ claims.
One additional point should be raised regarding the effect of case No. 46640. This court ordered the case remanded to the Indian Claims Commission in 1967 with instructions to hear additional evidence on the intention of the parties signing the stipulation. The only testimony taken at the rehearing was that of Dr. Ernest L. Wilkinson, signatory to the stipulation in case No. 46640, and of Georgette Betor Lee Hall, who took part in preparing Schedule 1. The government took the position that the stipulation spoke for itself, and that the parties’ intentions should be determined from the four corners of the instrument. Further, the government produced no documents, contending that all such requested material was the work product of the attorneys for the Department of Justice, and, therefore, privileged information protected by order of the Attorney General. Not surprisingly, Dr. Wilkinson, attorney for the appellees, testified that it was not his intention to include any of the lands presently at bar in the 1950 stipulation. It is appropriate to point out that if he had said anything else, he would have made himself ridiculous in that any other statement would have contradicted appellees’ brief and his own law firm’s position in this case. No weight can be given to these additional findings of fact. And a case of this magnitude cannot be decided because of a disagreement by the court with the government’s policy of nondisclosure of work products. The Commission concluded that:
* * * [I]t was not the intention of Dr. Wilkinson to include Royce Area 617 at the time he signed the stipulation in Case 46640. There is no evi*368dence as to the intention of the attorneys who signed the stipulation on behalf of the government * * *. [21 Ind.Cl.Comm. 268, 275 (1959).]
This additional evidence is therefore factually insufficient; it is also legally insufficient. This is due to the well-settled doctrine that parol evidence cannot be admitted in collateral proceedings to vary or explain judgments or judicial records. A stipulation such as was entered in No. 46640 is an act of the court and has the same force and effect as all judgments. Nashville, Chattanooga & St. Louis Ry. v. United States, 113 U.S. 261, 5 S.Ct. 460, 28 L.Ed. 971 (1885); NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 323, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961); Mason v. United States, 169 F.Supp. 507, 144 Ct.Cl. 579 (1959).
The reason for and importance of this doctrine was set out by this court in an earlier case, Utah Power & Light Co. v. United States, 70 Ct.Cl. 391, 42 F.2d 304 (1930):
* * * If, by reason of the decree having been entered by consent, the judgment which forms part of it is not in fact an adjudication of the issues in the case in accordance with its recitals, then in all the numerous cases in which final decrees have been entered by federal courts [on stipulation] in accordance with the agreement between counsel for the government and counsel for the other party to the action, the decree is not binding upon the parties, and becomes of no force and effect. The establishment of such a doctrine, * * would not only surprise the legal profession generally, but render a final settlement of cases pending in courts practically impossible. [Id. at 397-398, 42 F.2d at 307.]
The case should never have been remanded to the Commission for this purpose and I regret that I did not dissent from the decision to do so. This remand was an open invitation for a collateral attack on our 1950' judgment, which is not permissible and made it appear that our court did not know what it was doing when it entered the 1950 judgment settling, comprising, and paying all of appellees’ claims of every kind and character regarding all of its lands ceded to the United States in 1880, which included the land in suit.
But, says the majority, the Indians 1 should still recover, on the theory, itself quite anomalous, that the Act of 1880 was somewhat ambiguous, and, therefore, the subsequent governmental acts and Acts of Congress can be looked to to determine ownership of the lands in question. This argument is not only a contradiction of the facts and circumstances of this case, but also violates the principle of stare decisis.
Primarily, the Act of 1880 is not ambiguous. Its terms clearly indicate that the title to all lands embraced by the'Act, and not allotted to the individual Indians, is released and conveyed to the United States. The surplus land involved in this ease, land remaining after allotments to individual Southern Utes were made, was, therefore, not the property of the Indians, but of the United States. As we have stated earlier, the language in case No. 46640, “ * * * any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act. of June 15, 1880 * * is descriptive language. The court in 1950 had no other convenient method of describing the land, so reference was made to it in the best terms available, namely, as all land included in the Act of 1880. Since the lands at bar were not allotted to individual Indians in accordance with the 1880 Act, title to them was therefore released and conveyed to the United States. Therefore, the lands at bar fell squarely within the stipulation in case No. 46640.
*369This being the case, the subsequent acts of the government are without legal effect as far as the facts of this case go. Two reasons make this conclusion mandatory. First, assuming for the sake of argument that governmental acts subsequent to 1880 were confusing, still the lands in question were conveyed to the United States by the Act of 1880. Second, a correct reading of the Acts of 1882 and 1895 show that these Acts made absolutely no change in the Act of 1880. I have already explained these Acts, and will not repeat myself. Suffice it to say that there are no words of cession or reservation in these later Acts (as regards the land at bar), and, therefore, title remained in the government in accordance with the Act of 1880, and did not go to the Southern Utes. The Indians’ supposititious belief that they owned the land is of no legal importance, and it is surprising that the majority would believe Ute Indian Buckskin Charlie instead of the Congress of the United States. This is not a contract case where detrimental reliance comes to play; nor, for that matter, have the Indians suffered to their detriment by mistakenly believing they were the owners of the land they ceded away. And, any subsequent confusion on the behalf of changing government officials does not and cannot change the binding legal effect of the Act of 1880. Rather, it only goes to show that the Indians’ stalling tactics were partially effective, and that time dulls the inattentive senses of changing governmental officials as well as of Indians.
The majority places weight on the fact that the Act of 1895 was negotiated solely with the Southern Utes. Fifteen years had then elapsed since the 1880 agreement, and the government desperately needed to get this matter settled. Therefore, it used what means it deemed expedient to convince the Southern Utes to take allotments, or move to the site of the present Ute Mountain Reservation. This meant negotiating directly with the Southern Utes, and paying the proceeds of the land held in trust directly to them. This was a mere gratuitous windfall to the Southern Utes, and any harm done here was to other tribes of the Confederated Bands of Utes. Furthermore, even if we accept for the sake of argument the majority’s position, nothing done in 1895 took the lands presently in question out of the descriptive phrase “lands ceded in 1880.” Even if the majority’s position regarding the Act of 1895 is true, the lands at bar were still within the terms of the stipulation, since they were originally part of the lands ceded in 1880, and, therefore, any claims pertaining to these lands have been disposed of and settled.
To document the fact that the lands presently before us were indeed ceded by the Indians to the government in 1880, we need only pay heed to the doctrine of stare decisis, and examine earlier cases decided by this court which dealt with and interpreted the Act of 1880. Each of these cases involved the Act of 1880, and what lands were embraced therein, and in each case the question of what lands were involved in the Act of 1880 was clearly before the court for decision.
The first case to arise out of the Act of 1880 is The Ute Indians v. United States, 45 Ct.Cl. 440 (1910). This was an accounting case for the proceeds of all cash sales of land ceded by the Indians to the United States under the Act of 1880, up to 1910. The printed record of the case (Def’s Ex. 14a and 14b) establishes beyond a doubt that lands from Royce Area 617 (the lands presently before the court) and Royce Area 616 were included in the final judgment of this case, since these lands were within the 1880 cession to the government. In the Memorandum in re the Confederated Bands of Indians v. United States, Cause No. 30360, at page 634 (Def’s Ex. 14a), the following excerpt is right to the point:
The area of lands sold during the fiscal year 1908, as first stated, was 112,-158.94 acres, while the cash received therefor is $90,219.93. (Record p. 355.) The explanation is that part of this land has been sold, under the Act *370approved February 20, 1895 (28 Stats., 677), [i.'e., opened under the homestead laws] being surplus lands on the Southern Ute Reservation, partly on deferred payments. These lands are embraced within the cession of 1880 and within the accounting under the jurisdictional act. [Emphasis supplied.]
In the opinion of the court in the case, Judge Barney wrote:
In compliance with the provisions of the act [of 1880] all of the plaintiffs were removed to Utah, and allotments were there made to them, except the southern Utes who remained upon the reservation [of 1868] and received allotments along and within its southern border and partly within New Mexico. * * * [Id. at 461.]
The Judge also wrote:
By that agreement [of 1880] the plaintiffs ceded to the United States the entire remainder of their reservation * * * and agreed to remove, settle upon, and accept individual allotments of unoccupied agricultural and grazing lands in certain designated localities * * *.
It was further agreed by section 3 of said act that all lands within the ceded limits not allotted in severalty to the plaintiffs should be deemed to be public lands of the United States * * [Emphasis supplied.] [Id. at 459-460.]
Also included in this 1910 case was an accounting for land taken for the San Juan National Forest. This land was within Royce Area 617, the land area presently before the court, and was held by the court in 1910 to be land embraced by the cession of 1880.
Appellees have failed to distinguish this case, or to show that an error was made by the court in 1910. The majority’s opinion likewise fails to follow this case, or to deal with it.
The next case involving the Act of 1880 to come up was Confederated Band of Ute Indians v. United States, 100 Ct.Cl. 413 (1943), which dealt with the remaining undisposed of lands in Royce Area 616; therefore, the Act of 1880 was again before the court. This case arose after the 1938 “restorations.” (By way of explanation, in 1938 by Act of Congress, the remaining undisposed of lands in Royce Area 616 were declared to be the property of the United States, while the remaining lands in Royce Area 617 were restored to tribal ownership.)
In the Reporter’s Statement of the Case, we find the following:
By the agreement ratified, confirmed, and amended in the Act of June 15, 1880, which was in turn accepted and ratified by plaintiffs, plaintiffs ceded to defendant all territory in Colorado then reserved for their use, after the allotment of certain lands to individual members of plaintiff bands as provided by said agreement. * * * [Id. at 416.] [Emphasis supplied.]
This is a correct interpretation of the Act of 1880.
The Reporter also set out the terms of the restoration of Royce Area 617:
* * * [T]he Secretary of the Interior purported to restore certain lands in the southern portion of the area ceded in the Agreement of 1880 to the “Ute Mountain Band of Ute Indians of the Southern Ute Indian Reservation in Colorado,” and to the “Confederated Bands of the Ute Tribe of Indians, Colorado,” respectively. [Id. at 419.]
The fact that the land was restored to Southern Utes and other tribes of the Confederated Bands is convincing evidence that the Southern Utes did not retain ownership of these lands, because you cannot restore land if it was never ceded away.
Judge Madden, writing for the majority, construed the Act of 1880:
On March 6, 1880, an agreement was made by the chiefs and headmen of the Utes, which was later ratified by the members of the tribes, to cede their remaining lands in Colorado to the United States, after first providing for *371certain individual allotments to some members of the tribes. * * * [Emphasis supplied.] [Id. at 421.]
Here is another clear holding by this court that the lands presently in question were a part of the lands ceded by the Indians to the government in 1880.
In 1948, the court heard a suit to determine which lands were taken and the value thereof within the terms of the 1943 judgment. Confederated Bands of Ute Indians v. United States, 112 Ct.Cl. 123 (1948). The court accepted the 1943 construction of the Act of 1880. The Indians have failed to distinguish this case.
The next litigation involving the Act of 1880 is the 1950 case, Confederated Bands of Ute Indians v. United States, 117 Ct.Cl. 433 (1950), in which four causes (Nos. 45585, 46640, 47564, 47566) were settled. It is of course my contention that cause No. 46640 settled the claims on which the Indians are presently suing.
Soon after the 1950 case, the court heard a suit for attorneys’ fees for services rendered to the Confederated Bands which resulted in the 1950 decision. Confederated Bands of Ute Indians v. United States, 120 Ct.Cl. 609 (1951). The very law firm which is now in court representing the Southern Utes in this case was bringing suit to determine the value of its services. Findings of Fact No. 25(b) from that case is another answer to the case before us, and, I would suggest, an answer to which plaintiffs now before us are specially bound. The court found:
25. (a) * * *
(b) The original Ute reservation, established by treaty between the Indians and the United States in 1868, embraced 15,000,000 acres on the western slope of Colorado. In 1873 the Indians ceded to the United States a segment in the southern part of the reservation containing 3,000,000 acres. In 1880 the Indians ceded to the United States, the remainder of the reservation, containing 12,000,000 acres. [Emphasis supplied.] [Id. at 623.]
In every single case which has come before this court involving the Act of 1880, this court has found that the Act ceded to the United States all of the lands in the former Ute Reservation in Colorado, excepting only the land transferred to individual Indians as allotments. The majority ignores these cases as if they were not in the books. In its zeal to compensate the living Indians for the claimed harm done their ancestors, the majority loses sight of the fact that the Indians have already been amply reimbursed for the land at bar in 1950. The Southern Utes may have sincerely believed that this land was theirs, but Indians too can be wrong. In another case in which the Utes were plaintiffs (involving different land), the Supreme Court set out the long established rule governing the interpretation of treaties, acts, and agreements between the Indians and the United States:
* * * While it has long been the rule that a treaty with Indians is to be construed so as to carry out the Government’s obligations in accordance with the fair understanding of the Indians, we cannot, under the guise of interpretation, create Presidential authority where there was none, nor rewrite congressional acts so as to make them mean something they obviously were not intended to mean. Choctaw Nation v. United States, 318 U.S. 423, 431, 432, 63 S.Ct. 672, 677, 678, 87 L.Ed. 877. We cannot, under any acceptable rule of interpretation, hold that the Indians owned the lands merely because they thought so. Solicitous as the Government is to carry out its promises to the Indians in good faith, we are satisfied from this record that the Government has performed all that it promised. [Confederated Bands of Ute Indians v. United States, 330 U.S. 169, 179-180, 67 S.Ct. 650, 655, 91 L.Ed. 823 (1947), aff’g, 64 F.Supp. 569, 106 Ct.Cl. 33 (1946).]
I am satisfied that in the case before us the government has performed all it *372promised and has already paid the Indians for their present claim.
It should be pointed out that when the four cases (Nos. 45585, 46640, 47564 and 47566) were settled in Confederated Band of Ute Indians v. United States, 117 Ct.Cl. 433 in 1950, the settlement was one of pure compromise of all the claims of the Ute Indians. The agreement of settlement was not reached quickly. In fact, negotiations for compromise and settlement extended over a period of three years. The government first offered the sum of $14,000,000, plus interest, less offsets, in full settlement. This was refused by the Utes. The government then offered $20,000,-000, including interest, less offsets, which was refused.
The Utes’ attorneys demanded $30,-000,000 in settlement of all the claims and cases. Finally, the parties agreed to a compromise settlement of $20,000,000, plus interest, amounting in all to the sum of $31,938,473.43. This amounted to $15,600 for each Indian. The parties then entered into a joint stipulation and judgment of compromise and settlement of all claims and demands, right, title, interest, and estate of whatsoever nature in and to the land in western Colorado ceded by the Ute Indians to the United States by the Act of June 15, 1880. All of these negotiations are shown in the opinion of this court in the case of Confederated Bands of Ute Indians v. United States, 120 Ct.Cl. 609 (1951) in which the attorneys were asking this court to allow them an attorney fee of $3,193,847.-35.2 They alleged in great detail all the work they had done, which was considerable, how they had negotiated for the compromise and settlement and how long it took to reach a settlement agreement. The significance of all of this is to show that the settlement was a lump sum compromise in the nature of a jury verdict for all the claims of the Ute Indians with reference to the land ceded in 1880 (including the land involved here). It did not matter what land was listed in Schedule 1, nor whether or not all of it was listed, nor whether the listing was correct. The Indians make a great deal to do over their claim in this case that no land in Royce 617 was listed in the Schedule. This is immaterial, because the stipulation of the parties and judgment stated it was in full settlement and payment for the complete extinguishment of plaintiffs’ claims of whatsoever nature in and to the lands ceded in 1880, whether listed in Schedule 1 or not, and plaintiffs’ petition was deemed amended to conform to the stipulation.
The Indians and their attorneys are estopped to attack or impeach their own stipulation and judgment which they signed and accepted and for which they have been paid. Davis v. Wakelee, 156 U.S. 680, 689-690, 15 S.Ct. 555, 39 L.Ed. 578 (1895); Livesay Industries, Inc. v. Livesay Window Co., 202 F.2d 378, 382 (5th Cir. 1953), cert. denied, 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369; American Nat’l Bank & Trust Co. v. Taussig, 255 F.2d 765, 769 (7th Cir. 1958), cert. denied, 358 U.S. 883, 79 S.Ct. 125, 3 L.Ed. 112. This settlement was payment for, and an accord and satisfaction and release of, all of their claims, including those before us in the instant suit. I mention the attorneys because this court must fix their attorney fees, as it did in the previous case, as an amount not exceeding 10 percent of the recovery. They shared in the previous recovery on a contingent fee basis and will share in this one on the same basis. I consider that under the circumstances they are bound by the stipulation, settlement, and judgment in 1950 to the same extent that the Indians are bound.
Lack of Necessary Parties Plaintiff
There is another fatal flaw in the Indians’ side of the case before us, a flaw which requires a reversal of the decision in this ease. This is because there is a lack of necessary parties before the court.
*373First, it should be observed that any claim that the White River, Uneompahgre or Uintah Utes might have had was lost in the following Resolution of June 1, 1950. (Def s Ex. 18. This resolution was accepted by Congress and carried into effect by section 2 of the Act of August 21, 1951, 65 Stat. 194.)
(3) * * * [T]hat the Southern Ute Band (including the Ute Mountain Utes) shall foreover possess and own their Reservation [this included the Ute Reservation established west of Range 13 by the Act of 1895 and the residue lands (unallotted, unsold and not taken for the San Juan National Forest) east of range 14 which were restored to tribal ownership by order of the Secretary of the Interior of September 14, 1938] free from any claim of the Ute Indian Tribe of the Uintah and Ouray Reservation * * *.
(4) * * * [T]hat neither the Southern Utes (including the Ute Mountain Utes) nor the Uncompahgre, White River or Uintah Utes shall have any claim against each other for the past distribution of funds or allocations of land; * * *.
The fatal lack of parties, however, involves the various original signatories to the Agreement of 1895. The Southern Utes before the court cannot recover, because the present day Ute Mountain Utes, who are a part of the Southern Ute Tribe, are not parties to the suit.
At the time of the passage of the Act of 1895, there were three bands known collectively as the Southernn Utes; the Muaches (or Moaches), the Capotes and the Weeminuches. As I have said above, by the Act of 1895, one group of Indians chose to move to a reservation in western Colorado and New Mexico, and the other Indians chose to take individual allotments in the eastern portion of Royce Area 617. The group refusing allotments, which moved to the new western reservation, was composed mainly of Weeminuches (see appellees’ brief at 13-14), and became known as the Ute Mountain Tribe, and were officially so recognized in 1940. The individual Indians who took allotments in the east were mainly Capotes and Muaches and are the appellees now before the court.
The Act of 1880 moved the Capotes, the Muaches and the Weeminuches (under the collective name of the Southern Utes) to the land area now in question for the purpose of taking allotments. Then, in 1895, some moved to the site of the present Ute Mountain Reservation in the west and some took allotments in the east. (It should be noted that the appellee Southern Ute Tribe had no official reservation until 1938, when the residue of unsold and unallotted lands in Royce Area 617 was restored to tribal ownership by order of the Secretary of the Interior. Prior to 1938, the only possessory interest any of these Southern Utes held in any land was their individual interest in their individual allotments.)
Under section 5 of the Act of 1895, all of the bands of the Southern Utes, including the present day Ute Mountain Tribe and the appellees, shared in the special benefits from the lands to be sold after the allotments. (See 28 Stat. 677, 678.) The Act even specifically set aside, out of the first moneys realized, an amount to be paid to “Buckskin Charlie, as chief of the Moaches, and Mariano, as chief of the Weeminuches, [who was of the Ute Mountain tribe] * * * [and] to Tapucke and Tabewatch, as chiefs of the Capotes * *
It is perfectly clear that the only property granted appellees’ ancestors were the allotments, and the only property granted the ancestors of the present Ute Mountain Tribe was the land which is now the Ute Mountain Reservation. And the right to the proceeds from the remaining lands sold (the basis of this case) was granted to all of the Southern Utes (ancestors of the present Southern Ute Tribe and Ute Mountain Tribe) by the Act of 1895. Therefore, the Ute Mountain Tribe, not a party to this suit, has an interest in every claim arising from this land. Appellees’ failure to join them results in a fatal lack of necessary parties.
*374In their brief, appellees attempt to deal with this serious problem within the space of three paragraphs (see brief at 13-14). To put it mildly, the reasoning and statements set forth are pure fantasy. Appellees say that the Act of 1895 was, “In effect, * * * a cross-relinquishment of rights between the allotted and unallotted Southern Utes * * This is simply wishful thinking, and is plainly contradicted by the specific terms of the Act of 1895, which gives the benefits and proceeds from the Act to all Southern Utes, both allotted and unallotted. There is neither in effect, nor in fact, nor in law any such “cross-relinquishment” of rights. The brief then says that “the unallotted Southern Utes surrendered their interest in the eastern portion of ‘their present reservation’ and the allotted Southern Utes surrendered their interest in the western portion.” This again is simply fantasy. The Act of 1895 reserves the rights of all Southern Utes (Weeminuches, Capotes and Muaches, or, present day Ute Mountain Tribe and Southern Ute Tribe) to the proceeds of the sale of remaining lands.
Appellees then say, “The Southern Utes accepted this separation and two land-owning groups, each with its own reservation, were created. Through the voluntary cross-relinquishment of their interests under appropriate legislation, the allotted Southern Utes became the sole owners of the eastern part of the Southern Ute Reservation.” (Brief at 14.) First, two land-owning groups, each with its own reservation, were not created. The only interest the allotted Indians held in the land was in each individual allotment. No reservation in the eastern part of Royee Area 617 was created ; to the contrary, only individual allotments were created. Second, neither through a hypothetical “cross-relinquishment,” nor through “appropriate legislation” (it is interesting to note that we are not cited to any of this “appropriate legislation”), did the present day Southern Utes become sole owners of the eastern part of Royce Area 617. To the exact contrary, the present day Southern Utes became owners only of individual allotments, and the remaining land was held by the government, with the proceeds to go to all of the Indians, Weeminuches, Capotes and Muaches, regardless of whether they lived on the new Ute Mountain Reservation, or on an allotment.
I do not agree with the hindsight approach of the majority to this problem by its reliance on and interpretation of Rule 62(a) of this court. This rule applies only to suits originally filed in this court. The case before us is not such a case, but is one that was filed originally with the Indian Claims Commission, which has its own rules, and we are hearing the case on appeal. Not only that, but this court has its own separate rules for Indian cases it hears on appeal, adopted in 1948, entitled “Rules of the Court of Claims of the United States Governing Appeals from the Indian Claims Commission.” Consequently, Rule 62(a) does not apply. In any event, the interpretation of this rule by the majority renders it meaningless. They say, in effect, that the rule means that an outside third party who may not even know the suit is pending, must affirmatively and timely intervene (file a claim) and, if he does not do so, the rule is satisfied. This is not what the rule says. It states in unequivocal language:
* * * [Pjersons having a joint interest adverse to the United States, shall be made parties and shall be joined on the same side as plaintiffs. When any person who should join as a plaintiff refuses to do so, he may be made an involuntary plaintiff. [Emphasis supplied.]
As may be seen, this rule provides that persons having an interest “shall” be made parties and “shall” be joined as plaintiffs. This is compulsory and not optional. Also, the rule, where it is applicable, contemplates that persons having an interest at the time the suit is filed shall be joined. This suit was filed August 10, 1951, at a time when the Ute Mountain Indians of the Southern Ute Tribe unquestionably had an interest *375in the claim. Under Rule 62(a), if it applies, they should have been made parties by the appellees at that time, and because of the failure to do so by appellees, there was and is a fatal lack of necessary parties in this ease. But, the majority, with its hindsight approach is applying the rule as of now, 18 years after the suit was filed, saying, in effect, it would do no good to make them parties now because limitations has run on their claim, and, therefore, Rule 62(a) is satisfied and the present plaintiffs, notwithstanding their failure to comply with the rule, is in the position of “winner take all,” including the interest of the Ute Mountain Indians. I cannot agree with this interpretation of the rule.
But, the problem does not end here. The Commission itself said that if the Utes ceded their entire Colorado Reservation in 1880, “then the present day Ute Mountain Utes as well as the remainder of the Confederated Utes would have been necessary parties.” 3 Of course, as shown by the foregoing, this is exactly what happened. The Utes did cede all their remaining reservation to the United States in 1880. Therefore, the Ute Mountain Utes were necessary parties.
There is another reason not mentioned by the government why the Ute Mountain Utes are necessary parties to this suit. I refer to the fact that this suit was filed by the Southern Ute Tribe or Band of Indians. There is no question but what the Ute Mountain Utes, who live in the west, are as much a part of the Southern Ute Tribe or Band of Indians as the other Indians who live in the east (of Royce 617). I see nothing to prevent the Ute Mountain Utes from suing the United States, after payment of the judgment being awarded to the present appellees by the Commission and by the majority in this case, on the theory that since they are a part of the Southern Ute Tribe or Band of Indians, this suit was maintained for their benefit and the government has paid their part of the recovery to the wrong parties, namely, the Southern Utes who live in the eastern part of Royce 617. In that case, the government would have the obligation of paying the claims for this land not only twice, but three times. The situation finally gets ridiculous. This problem is not cured by the allegations and contentions of the present plaintiffs to the effect that they are the sole owners of the claim, because the Ute Mountain Indians of the Southern Ute Tribe have had no notice of this suit and could not be bound by allegations of the plaintiffs unknown to them. They could, with sound reason, dispute this claim of the present plaintiffs and would no doubt do so if they had notice of this suit and were parties to it.
As late as 1951, the Congress considered the Ute Mountain Utes to be a part of the Southern Ute Band as shown by the resolution carried into effect by section (3) of the Act of August 21, 1951, 65 Stat. 194, quoted above, which contained the provisions “(3) * * *
[T]he Southern Ute Band (including the Ute Mountain Utes)” and again in section (4): “* * * [T]he Southern Utes (including the Ute Mountain Utes).” [Emphasis supplied.] There is no question but what the Ute mountain Utes were as much a part of the Southern Ute Tribe as were the present appellee Indians, and they were necessary parties to this lawsuit. It is difficult to see how one could reach a different conclusion.
The appellees have completely failed to sustain their contention that they are the sole owners of the claims in suit. Perhaps it is natural that they have failed in this respect, because it would have been impossible for them to prove otherwise, since in reality they are not the sole owners of the claims in suit.
The claim stated in the appellees’ petition, filed August 10, 1951 (before the expiration of the time for filing claims *376under the Indian Claims Commission Act), sought an accounting for:
c. Defendant’s failure to account for the proceeds from approximately 81,-953.18 acres * • * * was in violation of the aforesaid statutes [of 1880 and 1895] * * * and caused damage to petitioner in an amount equal to that received by defendant, which amount is unknown to petitioner, but is known to defendant.
d. Defendant’s failure to account for the proceeds from the sale of approximately 81,953.18 acres constituted unfair and dishonorable conduct on the part of defendant, and caused damage to petitioner in an amount equal to that received by defendant * * *.
As this is no more than a claim for proceeds from sales, this claim has already been settled by the stipulation case No. 46640 (117 Ct.Cl. 433, 436 (1950)).
The additional accounting claims, which deal principally with mismanagement of trust funds (see Def’s brief at 81-86 for complete listing), were inserted in the case in 1963 by way of filing exceptions. This was long after the 1951 expiration date of the Indian Claims Commission Act (25 U.S.C. § 70k). When the tribe presented these additional claims, defendant objected strenuously that the claims were beyond the scope of the initial claim, and, therefore, their admission was violative of the Supreme Court’s ruling in United States v. Seminole Nation, 299 U.S. 417, 57 S.Ct. 283, 81 L.Ed. 316 (1937), wherein the court said that after the time allowed in a jurisdictional act has run out, amendments may only supply details, but may not bring in additional claims. (This holding followed in Seminole Nation v. United States, 316 U.S. 286, 288-289, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942).) The claims filed in this suit in 1963 are obviously beyond the scope of the original claim filed in 1951.
The Commission seems to concede that the new claims asserted went beyond the original claim, when it said:
Defendant’s objection goes specifically to the fact that petitioner has requested an accounting in its petition for certain specific items and has now raised by means of the exceptions * * * certain general accounting claims not referred to in its petition. [17 Ind.Cl.Comm. 28 (1966).]
But the Commission attempts to get around this by applying a rule sounding in equity, that the tribe did not know how its funds had been mishandled within the time allowed, and that this knowledge came to light only after the appellees received the GAO report in the case. Even if this statement was factually correct, it could not extend the jurisdiction of the Commission, for the enabling Act reads:
The Commission shall receive claims for a period of five years after August 13, 1946, and no claim existing before such date but not presented within such period may thereafter be submitted to any court or administrative agency for consideration, nor will such claim thereafter be entertained by the Congress. [25 U.S.C. § 70k (1964).]
But further, the evidence in this case shows that GAO reports covering the handling of the funds had been submitted to the Utes’ counsel as early as June 1949 (report in case No. 46640), and February 1953. Although the latter GAO report, the report in this case, was submitted in 1953, it was not until 1963 that counsel for the Southern Utes filed these exceptions. Not only was the late filing barred by limitations due to the Indian Claims Commission Act quoted above, it was also barred by the equitable doctrine of laches.
Conclusion
In my opinion, in accordance with section 20 of the Act creating the Indian Claims Commission (25 U.S.C. § 70s(b) (1964)), I would hold that the findings of fact of the Indian Claims Commission in this case are not supported by substantial evidence, and especially its findings that the Confederated Bands of Ute *377Indians did not cede their remaining lands in their Reservation to the United States in 1880; that the Ute Mountain Utes in the west of Royce. 617 are separate from the Southern Ute Tribe in the east; that the lands involved in this case were not included in the settlement of 1950 and that the parties did not so intend; that a proper accounting has not been made by the government to the appellees. I would also hold that the conclusions of law stated by the Commission as a basis for its final determination are not valid and are not supported by its findings of fact for all of the reasons stated herein. This is particularly true with reference to its conclusions of law that the Ute Indians did not cede all their remaining lands to the United States by the Act of 1880; that the subsequent Acts of 1882, 1888, and 1895 restored and vested the lands involved here in the Southern Utes in the eastern part of Royce 617 and to the exclusion of the Ute Mountain Utes; that said lands were not included in the 1950 settlement and the appellee is now entitled to be paid for it; that res judicata does not apply and that the Ute Mountain Utes are not a part of the Southern Ute Tribe and consequently have no claim and are not necessary parties.
Both the majority and the Commission ignored and ruled contrary to the following well-established principles of law in allowing the plaintiff Indians to recover in this case:
1. Res judicata.
2. Stare decisis.
3. Compromise and settlement.
4. Payment.
5. Accord and satisfaction.
6. Release of all claims.
7. Collateral attack on the 1950 judgment.
8. Disregarding the 1950 judgment of this court when no direct attack has been made on it.
9. Estoppel of the Indians to impeach their own act in executing the stipulation, settlement, and judgment of 1950.
10. Varying the terms of the written stipulation and judgment of 1950 by the parol evidence of Attorney Wilkinson 19 years later as to his intention.
11. Lack of necessary parties plaintiff.
12. Limitations and lack of jurisdiction as to the accounting claim.
13. Lack of substantial evidence.
14. Erroneous conclusions of law.
Seldom do you find a case where so many bulwark principles of law have been ignored, by-passed, and violated. In my opinion, the decision should not stand.
I would reverse the decision of the Commission and enter judgment for the defendant.
. A judgment in this ease will doubtless reach into the millions, as did the judgments in 1950. The current population of the Southern Ute Tribe is around 660. (Dept, of Interior, Bureau of Ind. Aff.: “Estimate of the Indian Population Served by the Bureau of Indian Affairs: 1968”.)
. The sum of $2,800,000 was allowed.
. 17 Ind.Cl.Comm. 28, 52.