dissenting:
My steadfast belief that the questioned 50,000 acre tract was before the court and adjudicated in Healing II, coupled with my abhorrence of prolonging this litigation, compels this dissent:
That the Healing IT court had before it for consideration the entire 1882 reservation, including the now disputed 50,000 acres, and the rights of the individual Indians, is made perfectly clear by the court’s statement of the issues in the opening three paragraphs of its opinion, which I quote:
“We have for determination in this action the conflicting claims of the Hopi and Navajo Indians in and to Indian reservation lands situated in northeastern Arizona.
“These lands, consisting of some 2,500,-000 acres, or 3,900 square miles, were withdrawn from the public domain under an executive order signed by President Chester A. Arthur on December 16, 1882. In that order it was provided that this rectangular tract, about seventy miles long and fifty-five miles wide, hereinafter referred to as the 1882 reservation, would be ‘. . . for the use and occupancy of the Moqui, and such other Indians as the Secretary of the Interior may see fit to settle thereon.’
“The Hopi Indian Tribe has long contended that it has the exclusive beneficial interest in all of the 1882 reservation for the common use and benefit of the Hopi Indians, trust title being conceded to be in the United States. The Navajo Indian Tribe contends that, subject to the trust title of the United States, it has the exclusive interest in approximately four-fifths of the 1882 reservation for the common use and benefit of the Navajo *249Indians, and concedes that the Hopi Indian Tribe has the exclusive interest in the remainder. The controversy resulting from these conflicting claims presents what has been characterized as ‘the greatest title problem of the West.’ ” 210 F.Supp. 125, 128-129 (D.Ariz.1962) [Footnote omitted]. [Emphasis supplied].
To determine the area before it for consideration, the court utilized a map, a simplified version of which is taken from Healing II at page 133 and follows:
[[Image here]]
The Healing II court, after recognizing that its authority to proceed was based on the Act of July 22, 1958, 72 Stat. 403, went on to say:
*250“The 1958 act authorized the chairmen of the tribal councils of the respective tribes, and the Attorney General on behalf of the United States, to commence or defend an action against each other and any other tribe of Indians claiming any interest in or to the 1882 reservation. As indicated in section 1 of the act, the purpose of any such action would be to determine the rights and interests of these parties in and to the lands and to quiet title thereto in the tribes or Indians ‘establishing such claims pursuant to such Executive order as may be just and fair in law and equity.’
“With respect to any interest which either tribe or the Indians thereof might be thus found to have in any of the lands, it was provided, in section 2, that the court would determine whether such interest is exclusive or otherwise. Under that section, lands in which either tribe or the Indians thereof are determined to have the exclusive interest shall thereafter, in the case of the Navajos, ‘be a part of the Navaho [sic] Indian Reservation,’ and, in the case of the Hopis, ‘be a reservation for the Hopi Indian Tribe.’ ” 210 F.Supp. at 130. [Emphasis supplied].
All parties concede that the map includes the disputed 50,000 acre tract.
That the Healing II court actually assumed jurisdiction over the entire 1882 reservation is made conclusive by the following excerpt from the opinion.
“The applicable facts and law of this case do not permit of a declaration that one tribe or the other has the exclusive interest in all of the 1882 reservation; or that all of the 1882 reservation is divisible into areas of exclusive interest from one tribe or the other. The only part of the reservation which may be, and herein is, so classified is the district 6 area, as defined on April 24,1943, the Hopi Indian Tribe having the exclusive interest therein. As to the remainder of the reservation, the Hopi and Navajo Indian Tribes have joint, undivided, and equal interests as to the surface and sub-surface including all resources appertaining thereto, subject to the trust title of the United States.” 210 F.Supp. 191,192. [Emphasis supplied].
Furthermore, the court, after eliminating the District 6 area, determined that as to the remainder of the reservation, the Hopi and Navajo Indian Tribes had joint, undivided and equal interests. Clearly, the “remainder of the reservation” included the 50,000 acre tract here in dispute.
The Healing II court then went on to make sure that no one would misunderstand the breadth and nature of its decision by saying:
“It is just and fair in law and equity that the rights and interests of the Hopi and Navajo Indian Tribes be determined in the manner just stated, and that the respective titles of the two tribes in and to the lands of the 1882 reservation be quieted in accordance with that determination.” 210 F.Supp. 192. [Emphasis supplied].
Manifestly, the court could not have decided the issues before it in the absence of a description of the area involved; which description formed the basis for the map previously shown.
The original map, of which the above is a simplified version, was admitted in evidence under the provisions of a stipulation between the parties providing, among other things:
“STIPULATION IDENTIFYING BOUNDARY LINES ...”
“It is stipulated and agreed by and between the attorneys of record for the plaintiffs and the defendants herein that:
I.
“The map submitted herewith, dated August 15, 1962, as approved by Charles Pitrat on behalf of the plaintiffs, and by J. Lee Correll on behalf of the defendants, was prepared jointly by plaintiffs and defendants, and depicts the boundaries legended thereon as follows:
*251lililí Boundary of 1882 Executive Order Reservation.
_• •_ Boundary of that portion of the 1882 Executive Order Reservation which defendants concede to the plaintiffs.
_ Boundary of Land Management District 6 as originally created in 1936.
------Boundary of Land Management District 6 as approved on April 24,1943.”
The stipulation makes it conclusive that the hash marks marked the outer boundaries of the entire area under scrutiny. Because the parties concede that the 50,000 acres in dispute lay along and inside the southern boundary of the entire area included in the hash marks, logic compels a conclusion that the Healing II courts, district and Supreme, fully adjudicated the rights of the respective parties in and to the 50,000 acres.
Aside from District 6, the legal title to the remainder of the reservation, which would include the 50,000 acres, was adjudicated to the respective tribes to have joint, undivided and equal interests to the surface and subsurface, including all resources appertaining thereto, subject to the trust title of the United States. Moreover, the decision required that the respective titles of the two tribes in and to the lands of the 1882 reservation be quieted in accordance with that determination. 210 F.Supp. 191, 192.
That the stipulation was fully considered and formed a basis for the decision is made clear by Circuit Judge Hamley’s order dated August 17, 1962, in which he approved the stipulation and ordered it filed as part of the record on appeal.
It is of more than ordinary significance that Healing II was affirmed by the Supreme Court of the United States in Jones v. Healing, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963), affirming 210 F.Supp. 125. Beyond question, the Healing II Supreme Court decision on the interests of the respective tribes in the area shown by the map was a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 342-345, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). The fact that Hicks was a dismissal by the Supreme Court, rather than an affirmance on the merits, is of no significance.
I firmly believe that the doctrine of res judicata is applicable. The Supreme Court in Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948), succinctly stated the requirements for res judicata. “The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound . . . ” The majority concedes that the court had proper jurisdiction under the 1958 Congressional legislation, and there is no doubt that the parties were in privity. Moreover, as I have noted, the Healing II courts, both district and Supreme, did indeed reach and adjudicate the boundary dispute of the 1882 grant. Since both suits arose from the same set of operative facts and both sought to achieve the same objective, namely a fair share of the land whether in whole or in part, res judicata would bar a reconsideration of the area which was the subject of the court’s decision. Small Business Administration v. Taubman, 459 F.2d 991 (CA9 1972).
Even assuming that the Healing II court did not consider the boundary size as exhaustively as it might have, res judicata would still control. As the Sunnen Court noted, res judicata bars the parties, “ ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ” See, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 578-79, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974); Mirin v. State of Nevada ex rel. Public Service Comm’n, 547 F.2d 91, 94 (CA9 1976), cert. denied 432 U.S. 906, 97 S.Ct. 2952, 53 L.Ed.2d 1079 (1977); United States v. Kabinto, 456 F.2d 1087, 1090 (CA9 1972), cert. denied 409 U.S. 842, 93 S.Ct. 40, 34 L.Ed.2d 81; Flynn v. State Board of Chiropractic Examiners, 418 F.2d 668 (CA9 1969). Manifestly, appellants must be barred from raising this claim when at the first trial the stipulated boundaries were unchallenged.
Even assuming arguendo that the doctrine of res judicata is inapplicable, the *252concept of collateral estoppel prevents relitigation of this issue. Collateral estoppel is a much narrower principle than res judicata for it only prevents relitigation of specific issues that were litigated in a prior action. Clark v. Watchie, 513 F.2d 994, 998 (CA9 1975), cert. denied 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). There the court established a three part test for the invocation of collateral estoppel: a final judgment on the merits, privity of parties, and identity of issues. Each test is met by Healing II's consideration of the boundaries. The first two parts of the collateral estoppel test — a final judgment on the merits and privity — were obviously satisfied. The remaining requirement is an identity of issues. Again I would rely on the Taubman authority which holds that when the objective facts are identical and the suit has the same objective, namely settling the title dispute, then there is an identity of issues.
The majority rejects the application of collateral estoppel because the parties entered into a stipulation as to the boundaries of the 1882 tract at the commencement of the Healing II litigation. They hold that a stipulation is not actually litigated and, therefore, cannot be used to collaterally es-top. However, such a rigid rule is not the law.
Despite what is said by the majority, a stipulated fact in an initial proceeding may collaterally estop consideration of the same issue in a second proceeding. Eastern Foundation Co. v. Creswell, 154 U.S.App.D.C. 240, 475 F.2d 351, 354 (1973). There the amount of damages due appellee was stipulated in the first trial. In a later suit appellee sought this amount from its excess liability insurer. The court rejected appellee’s claim to the full amount because the damage figure was stipulated in the first trial and was “not necessary to the decision.” Additionally, the court noted that the appellant insurer had not been a party to the earlier litigation. From Eastern Foundation we can reason that a fact necessary to the first decision, even if stipulated, could serve to collaterally estop a later re-litigation of the same question. See also, Travelers Indemnity Co. v. State Farm Mutual Automobile Ins. Co., 330 F.2d 250 (CA9 1964).
Certainly, the Restatement of Judgments does not suggest that stipulated facts cannot be used to claim collateral estoppel. § 68 Comment h says that it is a “question of the interpretation of the stipulation whether it is binding on the parties only with reference to the particular cause of action sued upon, or whether it is binding in subsequent actions between them based upon different causes of action.” The interpretation of Judge Walsh, who has been a participant in this litigation from its very inception, should be upheld.1
In addition to the quarrels I have with the majority’s legal analysis, I also have problems with the practicality of its decision. We are faced with either resolving a dispute that has been before the courts for almost twenty years or prolonging the litigation for resolution of a recently raised issue that involves only 2% of the area involved in the grant. If there is any hope that this land can be shared peacefully by both tribes, a conclusion of this unending litigation rather than more appeals and remands is the wisest course.
CONCLUSION
I agree with the majority’s conclusion that we have jurisdiction and would affirm the decision of the district court.
. “IT IS ORDERED, ADJUDGED AND DECREED, that the issues now raised by Defendants concerning the title to such lands as may have been held by individual Indians within the area described by the 1882 Executive Order Reservation and such lands therein as may have been held by the United States in trust for the Navajo Tribe have heretofore been fully determined and adjudicated, and it is now law of the case and res judicata that the Hopi Indian Tribe and the Navajo Indian Tribe, for the common use and benefit of their respective members, but subject to the trust title of the United States, have joint, undivided and equal rights and interests both as to the surface and subsurface, including all resources, in and to all of the Executive Order Reservation of December 16, 1882, lying outside of the boundaries of land management district 6, as defined on April 24, 1943, and title in and to all of that reservation except the described district 6, was accordingly quieted in the Hopi Indian Tribe and the Navajo Indian Tribe, share and share alike, subject to the trust title of the United States as a reservation." [Emphasis supplied].