Sioux Nation of Indians v. United States

FRIEDMAN, Chief Judge,

delivered the opinion of the court:

The issue in this case, here on appeal from the Indian Claims Commission under a special jurisdictional statute described below, is whether the Commission correctly held that an 1877 statute under which the United States acquired certain lands from the Sioux Indians constituted a taking of those lands for which the United States was required to pay just compensation under the fifth amendment. The Commission found the fair market value of the land and other interests in it that the government thus acquired was $17,553,484.¹ The government has not challenged that determination or contested its obligation to pay that amount.

The sole question before us is whether that acquisition constituted a taking in violation of the fifth amendment. The significance of that issue is that if it were such a taking, the government would be liable not only for the value of the property taken but also for interest from the date of taking. Shoshone Tribe of Indians v. United States, 299 U.S. 476, 497 (1937); United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119, 123 (1938). Because the acquisition in this case occurred a century ago, the amount of such interest would be many times the value of the property taken. The total interest the plaintiffs would recover if a taking occurred has been estimated at between $90 million and $115 million.

For the reasons given below, we conclude that the 1877 Act was a taking of the Black Hills portion of the Sioux Reservation and of rights-of-way across other Sioux land, but that the United States did not take the gold the miners removed from the Black Hills prior to the 1877 statute.

I.

This is the third time this case has been before the court on the question whether the United States’ acquisition of the particular property in 1877 constituted a taking. Under a special jurisdictional Act, Pub. L. No. 237, 41 Stat. 738. (1920), the Sioux filed in this court a petition seeking just compensation for the alleged taking in 1877 of their lands and rights therein. In 1942 the court held that under that Act the Sioux were "not entitled to recover from the United States as for a 'taking’ or 'for the misappropriations of any lands of said tribe.’ ” Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613, 666 (1942), cert. denied, 318 U.S. 789 (1943).

Following the enactment of the Indian Claims Commission Act in 1946 (25 U.S.C. § 70 et seq.), the Sioux submitted the same claim to the Commission.. Initially the Indians contended only that the government’s acquisition of their property was made for an unconscionable consideration and did not constitute fair and honorable dealings— grounds upon which the Commission could award damages under 25 U.S.C. § 70a(3) and (5). The Sioux, with our authorization, amended their petition to reassert the fifth amendment taking. See Sioux Tribe of Indians v. United States, 182 Ct. Cl. 912 (1968) (summary of proceedings).

After extensive proceedings, the Indian Claims Commission, in the decision now under review, held in 1974 that the government’s acquisition of the Sioux lands and interest therein constituted a taking for which the Sioux were entitled to just compensation, including simple interest at 5 percent. Sioux Nation v. United States, 33 Ind. Cl. Comm. 151, 362-63 (1974). On appeal, this court affirmed the award of $17,553,484 under the dishonorable dealings provision of the Indian Claims Commission Act, but reversed the Commission’s finding of a taking. The court held that its 1942 decision was res judicata on the taking question. United States v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d 1298 (1975), cert. denied, 423 U.S. 1016.

Congress then enacted Pub. L. No. 95-243, 92 Stat. 153 (1978), which directed that this court, upon filing of a timely application, should

review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the Indian Claims Commission entered February 15, 1974, adjudging that the Act of February 28, 1877 (19 Stat. 254), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. In conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of a fifth amendment taking and shall determine that issue de novo.

The Sioux Nation filed an appropriate application for review pursuant to that statute. Neither party has submitted any additional evidence, so we decide the case on the record in our 1942 case and the record before the Commission in this proceeding.

II.

The factual background for this issue begins with the Treaty of April 29,1868 between the United States and the Sioux Indians (15 Stat. 635). In that treaty the United States, among other things, (1) established "for the absolute and undisturbed use and occupation of the Indians” certain land in South Dakota, including more than 7 million acres in the Black Hills area (article II); (2) agreed that no unauthorized persons "shall ever be permitted to pass over, settle upon, or reside in [that] territory” (id,); (3) undertook to supply for 4 years certain food to all Indians who settled permanently on the reservation and complied with the treaty (article X); and (4) gave the Indians hunting rights in designated areas outside the reservation (articles XI and XV). The treaty further provided that no cession of any reservation lands of the Sioux "shall be of any validity or force” unless executed and signed by at least three-fourths of the adult male Indians occupying or interested in those lands (article XII).

In accordance with the treaty obligation, the United States appropriated more than $5 million to supply food to the Indians for the 4 years following the treaty. Although the government’s treaty obligation was discharged by the appropriation for fiscal year 1874, the government continued to make food appropriations for the fiscal years 1875 and 1876, which totaled $2,350,000.

Both before and when the treaty was executed, the Indians knew that the Black Hills contained gold, but the government had no reason to think that the amount located there was sufficient to be valuable. In the summer of 1874, however, an expedition commanded by Lt. Col. Custer explored the Black Hills portion of the reservation, and discovered gold there in paying quantity. News of this discovery was made public in late August of that year. A large number of prospectors, miners, and settlers then entered the area without the consent of the Indians, and public pressure to open the Black Hills developed and increased.

United States military forces in the area attempted to exclude and remove these unauthorized persons from the area, but their endeavors were largely unsuccessful. In November 1875, President Grant secretly ordered the Army to stop attempting to prevent the miners from entering the area. Although President Grant did not rescind prior orders forbidding the miners from occupying the Black Hills area, those earlier orders ceased to be effective. The government apparently believed that the Sioux’s needs for the rations the government had been supplying them would prevent the Indians from making trouble.

By 1875 the government apparently had concluded that the only permanent solution to the hostilities that had developed between the Indians and the settlers in the Black Hills and among the settlers themselves was for the government to acquire the Black Hills portion of the reservation and for the Indians to give up their hunting rights outside the reservation. Preliminary attempts to induce the Indians to take those steps through negotiations with the Sioux that were held both in Washington and in the reservation area were unsuccessful. In December 1875, the government ordered all Sioux to return to the reservation by January 31, 1876, or be treated as hostile. The Indians who were outside the reservation were hunting with the permission of their agents and could not return by the deadline. The Army then commenced military operations against them. The climax of the campaign against the Sioux was the famous defeat of General Custer at the Little Big Horn on June 25, 1876.

Congress responded by attaching a rider to the Indian Appropriations Act of 1876 which cut off all rations for the Sioux until they terminated hostilities and ceded the Black Hills to the United States. The rider also provided that no further appropriations for the Sioux would be made until the Indians had entered into an agreement with the President "which is calculated and designed to enable said Indians to become self-supporting.” Act of Aug. 15,1876,19 Stat. 176, 192.

In August 1876, at the request of Congress, the President appointed another commission (1876 Commission) to negotiate with the Sioux for the cession of the Black Hills and the termination of the Indians’ off-reservation hunting rights.

The 1876 Commission negotiated an agreement with the chiefs and head men of the Sioux tribes. The agreement stated it was made "pursuant to” the 1876 Appropriations Act. In the agreement, the Sioux ceded to the United States the Black Hills portion of their reservation and rights-of-way over other reservation lands for access to the Black Hills. In return, the United States agreed (1) "to provide all necessary aid to assist the said Indians in the work of civilization”; (2) to furnish the Indians "schools and instructions in mechanical and agricultural arts, as provided for by the treaty of 1868”; and (3) to provide them with specified rations "until the Indians are able to support themselves.” Where government schools were provided, rations would not be issued for children between the ages of 6 and 14 unless they regularly attended school. Rations would be issued to Indians located upon land suitable for cultivation only to those persons (other than the aged, sick, and infirm) "who labor[ed].” See Act of Feb. 28, 1877, 19 Stat. 254, 255-56.

Less than 10 percent of the male Sioux population aged 21 years or older approved the agreement. The agreement, therefore, did not satisfy the requirement of the 1868 treaty that no cession of territory could be made without the written approval of three-fourths of the adult males. Congress then "resolved the impasse by enacting into law the unratified agreement” by the Act of February 28, 1877, 19 Stat. 254. United States v. Sioux Nation, 207 Ct. Cl. at 238, 518 F.2d at 1300. As a result of that Act, which "ratified and confirmed” the agreement, the United States acquired all of the Sioux lands in the Black Hills, and terminated the Indians’ off-reservation hunting rights.

Subsequent to the Act of 1877, the United States expended substantial amounts in furnishing rations to the Sioux. The parties disagree over the precise amount of those expenditures. According to the defendant the United States spent approximately $43 million on rations for the Sioux from 1877 to 1942. See Sioux Tribe of Indians v. United States, 97 Ct. Cl. at 656, 662.

III.

A. Ordinarily, when the United States appropriates property interests of others, that constitutes a taking under the fifth amendment, for which the United States is obligated to pay just compensation. But,

[w]hen Congress deals with the Indian property it can act in one of two capacities. First, Congress can exercise a guardianship over Indian property, derived from its plenary power recognized in the Constitution to control tribal Indian affairs. Or it may exercise its fundamental power of eminent domain and take Indian property, for which it must pay just compensation.

Klamath and Modoc Tribes v. United States, 193 Ct. Cl. 670, 684-85, 436 F.2d 1008, 1015 (1971) (footnote omitted).

In Three Affiliated Tribes of Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d 686 (1968), the court announced the following "guideline” for "identifying] in which capacity Congress is acting”:

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.

The court reiterated and applied that standard in subsequent cases presenting the question whether Congress’ appropriation of Indian property constituted a taking. Klamath and Modoc Tribes v. United States, 193 Ct. Cl. at 685, 436 F.2d at 1015; Confederated Salish & Kootenai Tribes v. United States, 193 Ct. Cl. 801, 805, 437 F.2d 458, 459 (1971).

Apparently there has been some misconception that the "good faith effort” guideline in Fort Berthold requires or permits an inquiry into the subjective understanding and intent of Congress. See order of March 29, 1974, in Appeal No. 17-72, The Three Affiliated Tribes of the Fort Berthold Reservation, et al., Nichols, J., concurring, 204 Ct. Cl. 831, 833. The Fort Berthold guideline contemplated only an objective inquiry into the nature and purpose of the congressional action, not an attempt to determine the subjective motive of the legislature in taking that action. In determining whether Congress has made a good faith effort to give the Indians the full value of their lands when the government acquired it, we therefore look to the objective facts as revealed by Acts of Congress, congressional committee reports, statements submitted to Congress by government officials, reports of special commissions appointed by Congress to treat with the Indians, and similar evidence relating to the acquisition. As hereinafter shown, this is the kind of evidence upon which we have relied in reaching our conclusion in this case.

The "good faith effort” and "transmutation of property” concepts referred to in Fort Berthold are opposite sides of the same coin. They reflect the traditional rule that a trustee may change the form of trust assets, as long as he fairly (or in good faith) attempts to provide his ward with property of equivalent value. If he does that, he cannot be faulted if hindsight should demonstrate a lack of precise equivalence. On the other hand, if a trustee (or the government in its dealings with the Indians) does not attempt to give the ward the fair equivalent of what he acquires from him, the trustee to that extent has taken rather than transmuted the property of the ward. In other words, an essential element of the inquiry under the Fort Berthold guideline is determining the adequacy of the consideration the government gave for the Indian lands it acquired. That inquiry cannot be avoided by the government’s simple assertion that it acted in good faith in its dealings with the Indians.

The question in this case, therefore, is whether, in appropriating the Black Hills portion of the Sioux Reservation in the Act of 1877, Congress made "a good faith effort to give the Indians the full value of the land.” 182 Ct. Cl. at 553, 390 F.2d at 691.²

The defendant asserts that in this case a good faith effort is shown (1) in the government’s undertaking to provide rations for the Sioux "until the Indians are able to support themselves” and (2) in its subsequent expenditure of at least $43 million on such food. According to the government, the assumption of this substantial financial obligation and its discharge at great expense gave the Sioux the full value of the land the government took from them, so that the appropriation did not constitute a fifth amendment taking.³

The answer to the question requires a more detailed examination of the circumstances surrounding the action of Congress in appropriating the Sioux land in 1877.⁴

B. In June 1875, more than 9 months after the Custer expedition had discovered gold in paying quantities in the Black Hills, a delegation of Sioux Indians met with the President in Washington for a preliminary discussion of the cession by the Indians of the Black Hills and their off-reservation hunting rights. The President pointed out to the Sioux that "there will be trouble in keeping white people from going there for gold, if it should be discovered ... it is possible that strong efforts might not be made to keep them out.” The President also told the Sioux that if the United States should purchase the Black Hills, "I would try to see you get a full equivalent in value” and that he was "very anxious that the Government of the United States should pay them in a way that will be of most benefit to them, a full equivalent for all that they have given up . . . .” Sioux Tribe of Indians v. United States, 97 Ct. Cl. at 630-32.

In September 1875, the Allison Commission, which the Secretary of the Interior had appointed upon instructions from President Grant to negotiate with the Sioux for the cession of the Black Hills and the surrender of hunting rights, met with the Indians on the reservation in a Grand Council. The commission urged the Indians to sell the Black Hills

because 1 — they were unable to support themselves and ought to bow to the wishes of the Government which fed them, 2 — the Army was unable to keep settlers out of the hills and armed conflict between whites and Indians was inevitable, and 3 — gold was useless to the Sioux.

Sioux Nation v. United States, 33 Ind. Cl. Comm. at 252, finding 5. The Sioux offered to sell the Black Hills for $70 million. The commission offered $6 million, or alternatively, $400,000 a year for the right to mine, grow livestock, and cultivate the soil in the Black Hills, and $500,000 (paid over 10 years) for the surrender of the Sioux’s off-reservation hunting rights. No agreement was reached.

In its report on the unratified 1876 agreement that Congress adopted in the 1877 statute, the 1876 Commission stated that the Allison Commission had failed to obtain an agreement "because they had no authority to offer them [the Indians] any sum which would be a just equivalent for their right in the Black Hills, or which gave to the Indians hopes for the future.” S. Exec. Doc. No. 9, 44th Cong., 2d Sess. 12 (1876).

Following the failure of the 1875 negotiations, the government changed its prior policy of using the Army to exclude miners and settlers from the Black Hills (see p. 5 supra). In November 1875 the Army began to withdraw from the area.

In his annual report to Congress for 1875, the Secretary of the Interior, after noting the failure of the Allison Commission to negotiate an agreement, pointed out that for 2 years the United States had appropriated more than a million dollars annually for the subsistence of the Sioux. He stated that this was "a gratuity that the Government is under no obligations to give them, and for which it receives no compensating advantage.” Sioux Tribe of Indians v. United States, 97 Ct. Cl. at 647. He suggested that Congress consider "whether it would not be justifiable and proper to make future appropriations for supplies to this people, contingent on the relinquishment of the gold fields in the Black Hills and the right-of-way thereto.” Id.

As noted, the acquisition of the Black Hills was made by the Act of 1877. In that Act Congress adopted the unratified agreement which the 1876 Commission had negotiated with the Sioux chiefs and head men. Since it was the rider to the Appropriations Act of 1876 that provided for the appointment of the 1876 Commission and defined its authority in negotiating with the Sioux, the legislative history of that Act is highly significant in ascertaining the intention and theory of Congress in acquiring that land.

The antecedent of the 1876 Appropriations Act was S. 590, 44th Cong., 1st Sess., which was a bill "providing for an agreement with the Sioux Nation in regard to a portion of their reservation and for other purposes.” 4 Cong. Rec. 1662 (1876). As reported by the Committee on Indian Affairs on March 15, 1876, the bill provided for a 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. The bill further provided that subsistence would be terminated on July 1, 1877 (more than a year later) unless by then the Sioux had agreed to cede the Black Hills. After extensive debate (id. at 1796-1801,1829-30, 2177, 3530-39), the bill was amended to eliminate the provision for termination of subsistence; it provided for a commission to negotiate with the Sioux "for the cession to the United States” of parts of the reservation and adjacent territory "or otherwise for the preservation of peace.” Id. at 3539. The Senate passed it in that form.

In the House, S. 590 was reported with an amendment which permitted the proposed commission to negotiate for the acquisition of the Black Hills (id. at 3817), but the bill was recommitted and died in committee (id. at 4470, 4520). The House then passed H.R. 3478, the Appropriations Bill for the Indian Department, which stated that no portion of the appropriation of $1 million for feeding the Sioux would be available unless the Indians first agreed to abandon all claims to lands outside the reservation. Id. at 3498, 3503-OS, 3639.

The Senate modified H.R. 3478 to provide that one-half of the appropriation for Sioux subsistence would be suspended until the Indians agreed to cede the Black Hills and to relinquish their off-reservation hunting rights. Id. at 3902. The House refused to accede to this change (id. at 4043), and successive conference committees were appointed. Id. at 4043, 4057, 4324, 4563, 5463, 5539.

On June 25, 1876, General Custer was defeated at Little Big Horn. Less than 2 months later, on August 15, 1876, Congress enacted the 1876 Appropriations Act, with its rider (1) cutting off rations for the Sioux unless they terminated hostilities and ceded the Black Hills, and (2) providing for a commission to carry those provisions into effect.

Pursuant to this provision, the President appointed the 1876 Commission that negotiated with the Sioux the unratified agreement ceding the Black Hills. In transmitting the report of the commission to the Secretary of the Interior, the Commissioner of Indian Affairs described the commission as one "to obtain certain concessions from the Sioux, in accordance with provision contained in the Indian appropriation act for the current fiscal year.” S. Exec. Doc. No. 9 at 2. In transmitting that report to the Congress, President Grant used almost identical language in describing the commission. Id. at 1.

The instructions to the commission, referring to the rider to the Appropriations Act, stated that "the Indians should be made to understand distinctly that they can hope for continued appropriations only by full submission to the authority and wishes of the Government and upon full evidence of their disposition to undertake in earnest measures for their own advancement and support.” Id. at 4. In its meeting with the Sioux the 1876 Commission "submitted to the Indians the conditions required by Congress, and stated that we had no authority to change them in any particular.” S. Exec. Doc. No. 9 at 6. The Indians were left with no doubt that if they refused to cede the Black Hills they would receive no further rations from the government. Since the Army had taken from the Sioux their weapons and horses, the alternative to capitulation to the government’s demands was starvation, because the Indians no longer had the weapons for hunting, and as hunters they did not know how to farm and raise their own food.

The "consideration” stated in the 1876 agreement for the Sioux’s "cession of territory and rights” and "compliance with each and every obligation assumed by the said Indians” was that the United States agreed: (1) to provide the Sioux with "all necessary aid to assist the said Indians in the work of civilization,” (2) to furnish to them "schools and instructions in mechanical and agricultural arts, as provided for by the treaty of 1868,” and (3) to supply them with specified rations "until the Indians are able to support themselves.” See 19 Stat. 254, 256. The first item of consideration — the provision of "all necessary aid” to assist the Sioux in becoming civilized — entailed no specific benefits or obligations and was so vague that it cannot be considered as constituting a meaningful or significant element of payment by the United States. In the second item the government merely undertook to perform its obligations under the 1868 treaty; this provision gave the Sioux nothing to which they were not already entitled.

The only item of "consideration” that possibly could be viewed as showing an attempt by Congress to give the Sioux the "full value” of the land the government took from them was the requirement to furnish them with rations until they became self-sufficient. Indeed, this is the only "payment” upon which the defendant significantly relies to show that there was no fifth amendment taking.

After the commission returned to Washington with the executed but unapproved agreement, it submitted in December 1876 a lengthy report describing its negotiations with the Sioux. Sen. Exec. Doc. No. 9 at 5-90. President Grant transmitted the report to Congress. Id. at 1. The report stated that the commission had "accepted the trust confided to them under the grave responsibility that if they failed in their mission the twenty thousand friendly Indians at the agencies must either starve or join the hostile Indians.” Id. at 6. The report described at length the many separate discussions the commission held with the various Indian groups (id. at 29-86) and sharply criticized the government’s policy toward, and treatment of, the Sioux. Id. at 9-18. The report stated that "The least we can do is to repay these friendly Indians honestly for the full value of the property which was taken” (id. at 16) and that the commission was "confident that this agreement contains provisions which, if faithfully carried out, will save these Indians and redress some of the wrongs which furnish the darkest page of our history.” Id. at 17-18. The report also noted that, at the first meeting with the Indians, the commission told them that it had full authority from Congress and the President "to devise a plan to save their people from death and lead them to civilization,” and it described the first element of the plan as "to provide ample rations for their subsistence until able to support themselves . . . Id. at 6.

Nowhere in the report, however, does the commission indicate that it believed the provisions for rations constituted a fair equivalent for the value of the Black Hills lands the Indians were surrendering.

On June 26, 1877, the Senate Committee on Indian Affairs reported a bill to "ratify and confirm” the agreement. 5 Cong. Rec. 983 (1877). The Senate passed the bill the next day. The debate in that chamber dealt almost entirely with the possible movement of the Sioux from their reservation to Indian territory (id. at 1055-58) — a provision which was included in the agreement although agreed to by only two of the bands and which the Senate committee deleted. Id. at 1055. The sole reference to the Black Hills was Senator Allison’s statement that

[i]t is an imperative necessity that so much of this agreement as provides for the relinquishment of that vast area of territory which lies west of this boundary should be at once placed in the possession and under the control of the Government of the United States, and that can only be done by giving the force and effect of our sanction to this bill.

Id. at 1057.

The House passed the bill almost 3 weeks later on February 15, 1877. Id. at 1617. There, as in the Senate, the debate dealt almost entirely with the possible removal of the Sioux to Indian territory. Id. at 1615-17. Representa-' tive Boone described the bill as one of "great importance” that should be passed. He explained:

The Black Hills country is to the people of the United States a valuable country. This agreement concedes the Black Hills territory to the Government of the United States, in consideration of which we make provision for feeding these Indians upon the Missouri River at points contiguous to the means of transportation, so that there will be a saving to the Government in feeding the Indians, in addition to the transfer of this valuable country to the United States.

Besides this, the Indians by this bill are to be placed on a part of the reservation which they now hold which is susceptible of cultivation; and if we are ever to succeed in teaching them the arts of agriculture and civilization they will be in a position where we can carry forward those great enterprises which have succeeded so well in the Indian Territory with much greater facility than can possibly be done in the present scattered and inaccessible condition of these Indians.

Id. at 1615.

Similarly, Representative Crounse stated: "It is of the greatest importance that this bill pass and that the Black Hills country be opened up at once.” Id. at 1616.

The lack of any discussion of whether the "consideration” provided by the United States was adequate consideration for the lands surrendered may have reflected the belief which Senator Allison stated, that the agreement "has already been agreed to by all these bands.” Id. at 1056. Senator Allison did not note that the cession of the Black Hills was not approved by three-quarters of the adult male Indians, as the 1868 treaty required.

C. The foregoing history of congressional consideration of obtaining the Black Hills and of the negotiations with the Sioux about the cession of those lands demonstrates that in the Act of 1877 Congress did not make "a good faith effort to give the Indians the full value of the land.” Fort Berthold Reservation v. United States, 182 Ct. Cl. at 553, 390 F.2d at 691. The terms upon which Congress acquired the Black Hills were not the product of any meaningful negotiation or arm’s-length bargaining, and did not reflect or show any considered judgment by Congress that it was paying a fair price. In the "negotiations” the United States gave the Indians the Hobson’s choice of ceding the Black Hills or starving. Not surprisingly, the Sioux chiefs and head men chose the former rather than the latter.

The earlier attempt by the Allison Commission to negotiate an agreement for the sale of the Black Hills foundered because of the gross disparity between the $70 million the Indians asked and the $6 million the government offered. Since the treaty of 1868 had given the Sioux "the absolute and undisturbed use and occupancy” of the Black Hills, the Indians were under no legal compulsion to sell. They were induced to yield these valuable lands to the government because of the threatened cutoff of their rations, which were essential to their existence.

When the agreement for cession of the Black Hills failed to gain the written approval of three-quarters of the adult male Sioux as the 1868 treaty required for a cession to have "any validity or force,” Congress merely "ratified and confirmed” the unapproved agreement and thereby acquired the Black Hills.⁵ There is no indication that Congress believed that, or even considered whether, the obligation it assumed to furnish the Sioux with rations until they could support themselves, constituted the fair equivalent of the value of the lands the United States was acquiring from them.

In return for obtaining the Black Hills, the government did not even unqualifiedly undertake to provide all the Sioux with food. The right of the Indians to receive rations was qualified by the provisions that rations would be furnished for children between the ages of 6 and 14 only if they attended government schools, and for non-infirm Indians located upon land suitable for cultivation only if they performed "labor.” Indians who did not meet these conditions would receive no food, irrespective of any rights they may have had with respect to the property the United States acquired. These conditions further show that the government’s undertaking to furnish rations to the Indians until they could support themselves did not reflect a congressional decision that the value of the rations was the equivalent of the land the Indians were giving up, but instead was an attempt to coerce the Sioux into capitulating to congressional demands.

In the 2 years following termination of its obligation under the treaty of 1868 to furnish rations for 4 years, the government gratuitously had appropriated $2,350,000 to feed the Sioux. In the 1876 Appropriations Act Congress appropriated $1 million for "subsistence” for the Sioux and "for purpose of their civilization.” The bill (S. 590 supra, p. 12) from which the cutoff rider to the 1876 Appropriations Act was derived, provided that if the Sioux ceded the Black Hills, the United States would furnish subsistence to the tribe "from year to year for a period not exceeding ten years . . . in such manner as Congress may by law provide” (emphasis provided).

Congress hoped and anticipated that in a relatively short time the Sioux would learn the ways of civilized society and become self-sufficient. In the treaty of 1868 the United States had undertaken to do various things which it hoped would accomplish those objectives, such as building schools, giving instruction in farming, providing blacksmiths, etc. 15 Stat. 635, 637-38. There is no reason to believe that Congress anticipated (1) that it would be required to continue to supply rations for more than a half-century, or (2) that its fulfillment of the obligation to feed the Sioux would entail the large expenditures it ultimately made.

The fact that over the years Congress may have spent substantially more in furnishing rations than the fair market value of the Black Hills in 1877 does not establish that when Congress undertook to supply the rations it "was attempting to give the Indians the full value of the land.” Fort Berthold Reservation v. United States, 182 Ct. Cl. at 555, 390 F.2d at 692. The critical inquiry is what Congress did — and how it viewed the obligation it was assuming — at the time it acquired the land, and not how much it ultimately cost the United States to fulfill the obligation. If the legislative action when taken did not reflect "the exercise by Congress of its plenary authority to manage the property of its Indian wards for their benefit” (id. at 557, 390 F.2d at 693), the subsequent payment to those wards of amounts that in hindsight appear to equal or even exceed the fair value of the property does not make the initial acquisition any the less a fifth amendment taking. As this court stated in the Fort Berthold opinion, where the government argued that its acquisition of certain Indian lands in 1917 by Presidential proclamation was not a taking because the government paid an adequate amount for the lands in 1920, "[a] unilateral appropriation of money several years later does not affect the character of the original taking.” Id. at 564, 390 F.2d at 698.

D. The defendant argues, however, that Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), controls this case and establishes that the acquisition of the Black Hills by the 1877 Act did not constitute a taking.

The underlying facts in that case were somewhat similar to those here, but the legal issue was quite different. An 1867 treaty with certain Indian tribes established a reservation for them and provided that no treaty for the cession of reservation lands would be "of any validity or force” unless executed and signed by three-quarters of the adult males. In 1892 the Indians agreed to cede the reservation to the United States, in return for allotments out of those lands and the payment to and setting aside for the Indians of $2 million. Although it appeared that the requisite three-quarters of the Indians had signed the agreement, it subsequently developed that the requisite number had not signed. In 1900 Congress enacted a statute which in effect adopted the 1892 agreement. The Indians then filed a bill in equity to enjoin the government from carrying out the statute which, they asserted, violated the 1867 treaty requirement of consent by three-quarters of the adult male Indians.

The Supreme Court upheld the lower courts’ dismissal of the suit. It ruled that the plenary power of Congress "to administer the property of the Indians” authorized it "to abrogate the provisions of an Indian treaty” (id. at 565-66); that the power "has always been deemed a political one, not subject to be controlled by the judicial department of the government” (id. at 565); that the 1900 statute "purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit” (id. at 568); that the Court "must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises” (id.); and that "[i]n 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. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained” (id.).

In the Lone Wolf case, the Supreme Court was not required to, and did not, decide the legal issue whether, as a result of the 1900 statute, the Indians were entitled to recover just compensation for a fifth amendment taking. The claim made by the Indians was that, if the statute were enforced, their rights under the Treaty would be violated and Congress "would deprive said Indians of their lands without due process of law.” 187 U.S. at 561. By proceeding in equity, the Indians necessarily raised the threshold issue whether the governmental action in question could or should be enjoined. The Court concluded that Congress had the power to proceed with its plan for appropriation of Indian lands, and that it was not within the province of the judiciary to stay the hand of Congress. The Indians recognized that they had no remedy at law, and the Court ruled that they were not entitled to equitable relief. Under the circumstances, the Court inescapably concluded that, if Congress caused some injury by the exercise of its power, "relief must be sought by an appeal to that body” and not through the judicial process. 187 U.S. at 568.⁶

There is broad language in the Lone Wolf opinion that could be read as suggesting that the courts will not inquire into the propriety of congressional action concerning Indian property or consider the adequacy of the consideration Congress gave for the lands it appropriated from the Indians. The Supreme Court, however, frequently has cautioned against uncritically applying language used in a particular context in dealing with different situations. Armour & Co. v. Wantock, 323 U.S. 126, 132-33 (1944) ("[wjords of our opinions are to be read in the light of the facts of the case under discussion. . . . General expressions transposed to other facts are often misleading.”); White v. Aronson, 302 U.S. 16, 21 (1937); Puerto Rico v. Shell Co., 302 U.S. 253, 269 (1937); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).

The statements in Lone Wolf upon which the defendant relies were all made in determining whether courts should enjoin the enforcement of a statute which, by appropriating Indian property, was inconsistent with an Indian treaty. The question in this case, however, is a quite different one: whether a statute by which Congress appropriated Indian lands constituted a fifth amendment taking for which the United States is required to pay just compensation.

Since Lone Wolf, in which no consent had been given to sue the United States for just compensation, the Supreme Court has recognized that if the United States takes Indian property for its own use or to give to others, it must pay just compensation. This has been done where no compensation was originally paid and where the initial compensation was grossly inadequate.⁷ These are cases in which consent to sue for such compensation was authorized by special jurisdictional acts and include United States v. Creek Nation, 295 U.S. 103 (1935), and United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938). A significant element of the Lone Wolf decision apparently was the principle that the courts would not examine the consideration that Congress had given for Indian lands it had taken. However, we think the entitlement of plaintiffs to recover in this case should be determined in accordance with the principles laid down in post-Lone Wolf decisions, in which the consideration paid the Indians is taken into account in determining whether just compensation has been given. 304 U.S. at 125. See also, United States v. Sioux Nation, 207 Ct. Cl. at 250, 518 F.2d at 1307 (dissenting opinion of Davis, J.).

IV.

The Indian Claims Commission also held that the acquisition by the United States in the 1877 Act of rights-of-way across other Sioux lands constituted a taking for which the Indians are entitled to just compensation. It valued those rights-of-way at $3,484. The defendant concedes that the rights-of-way claims "Fall Into The Same Category As The Black Hills Transfer.” Defendant’s Answering Brief at 118. In view of our ruling that the government’s acquisition of the Black Hills constituted a taking, we also affirm the Commission’s ruling that the government’s acquisition of the rights-of-way was a taking for which just compensation must be paid.

V.

Prior to the 1877 Act, miners had entered the Black Hills area and removed from it gold which the Commission valued at $450,000. The Commission held that this removal of gold was a taking by the United States. It noted the provision in the 1868 treaty by which the United States agreed that unauthorized persons would not be permitted to enter the reservation. The Commission held that the act of taking was the order of President Grant that "the Army withdraw from the Black Hills and stop interfering with miners attempting to enter therein” (33 Ind. Cl. Comm, at 224), and that the date of taking was November 17, 1875, when the Army began to withdraw from the Black Hills. Id. at 227. The Commission’s rationale was that the removal of the gold from the Sioux reservation was the "direct and natural consequence of President Grant’s order” (id. at 227) and that "[t]o constitute a taking, it is only necessary that the claimant’s loss of its property be the natural and probable consequence of an intentional governmental act” (id. at 225).

In its previous decision in this case, the court recognized that the Commission’s award of $450,000 for the gold was sustainable under the "fair and honorable dealings” section of the Indian Claims Commission Act, 25 U.S.C. § 70a(5) (United States v. Sioux Nation, 207 Ct. Cl. at 240-41, 518 F.2d at 1301), and the government has not challenged that award. Cf. Temoak Band of Western Shoshone Indians v. United States, 219 Ct. Cl. 346, 593 F. 2d 994, cert. denied, 444 U.S. 973 (1979); United States v. Goshute Tribe, 206 Ct. Cl. 401, 512 F.2d 1398 (1975). It is quite another matter, however, to conclude that the action of the miners in illegally removing gold from the Indians’ land constituted a taking of that gold by the United States for which just compensation must be paid. We reverse the Commission’s ruling on this issue.

The plaintiff contends that the Act of 1877 constituted congressional ratification of President Grant’s order terminating the Army’s efforts to keep the miners out — an order the effect of which was to permit the miners to remove gold from the Black Hills. Although the statute ratified the agreement the commission had entered into with the chiefs and head men of the Sioux for the cession of the Black Hills, Congress neither ratified nor approved the removal of the gold by the trespassing miners. To the contrary, during congressional consideration of the 1876 Appropriations Act ration cutoff rider, Senators repeatedly condemned the illegal acts of the miners and criticized the government for not having prevented them. 4 Cong. Rec. 1796 (Senator Bogy), 1797 (Senator Hamilton), 1798 (Senator Allison, Senator Edmunds), 1799 (Senator Edmunds), 3531 (Senator Edmunds), 3534 (Senator Bogy), 3949 (Senator Morton). Nothing in either that legislation or the 1877 Act indicates or even suggests that Congress was approving the removal of the gold or the actions of the executive branch that facilitated the removal, or itself was attempting to gain the benefits thereof. Indeed, there is no indication that in 1876 or 1877 Congress was even aware either of President Grant’s order or of the commencement of the withdrawal of the Army from the Black Hills in November 1875.

This case is unlike Shoshone Tribe v. United States, supra, upon which the plaintiff heavily relies. There the government in 1868 had established a reservation for the "absolute and undisturbed use and occupation of the Shoshone Indians” and provided that no person should ever be permitted to settle or reside in that territory. 299 U.S. at 485-86. Ten years later a band of Northern Arapahoes was brought to the reservation under military escort and settled there. Although the Shoshones were informed that the Arapahoes were there only temporarily, the Indian Commissioner responsible for the arrival had other views. The Arapahoes gradually took over an ever-increasing portion of the reservation so that ultimately they had the entire eastern section. In subsequent legislation Congress treated "the two tribes as lawful occupants and equals.” Id. at 490.

The Supreme Court held that the United States had taken the Shoshone land in 1878. It stated

that from the outset the occupancy of the Reservation was intended to be permanent; that, however tortious in its origin, it has been permanent in fact; and that the Government of the United States through the action and inaction of its executive and legislative departments for half a century of time, has ratified the wrong, adopting the de facto appropriation by relation as of the date of its beginning.

Id. at 495.

In the Shoshone case the government itself placed the Arapahoes on the Shoshones’ land, encouraged and aided them to remain there and then recognized and treated them as the owners. The government thus gave the Shoshones’ tribal lands to others, and that constituted a taking for which just compensation was required. Id. at 497-98; United States v. Creek Nation, 295 U.S. at 110. In the present case, by contrast, the government neither brought the miners onto the Black Hills land nor encouraged them to settle there. On the contrary, the government originally attempted to exclude them, and Congress repeatedly criticized the miners’ trespassing onto the land.

The plaintiffs claim that the removal of the gold was a taking rests upon the government’s failure to keep the miners out and the alleged congressional ratification of that action. As we have already noted, there is no showing of congressional ratification or approval. The extent and significance of the government’s involvement in the miners’ removal of the gold is a matter of degree, and its involvement here was significantly less than in the Shoshone case. We cannot say that what the government did or failed to do with respect to the removal of gold constituted a taking for which the government was required to pay just compensation.

VI.

We understand that the award in this case is the largest the Indian Claims Commission ever made. Congress, however, was aware of the size of the recovery that would result if the court held that the appropriation of the Black Hills by the 1877 Act constituted a taking. In the section of the House Report on the special jurisdictional statute under which we have heard this case dealing with the potential cost of the legislation, the committee stated that if "the court determines in favor of the claimants,” the United States would be liable for interest totalling approximately $85 million. H.R. Rep. No. 95-529, 95th Cong., 2d Sess. 6, reprinted in U.S. Code Cong. & Ad. News 767, 772 (Apr. 1978). Similarly, during debate on the legislation, Representative Udall referred to the estimated cost of $85 million if the Sioux were to prevail. 124 Cong. Rec. H900 (daily ed. Feb. 9, 1978) (remarks of Representative Udall).

Congress concluded that, despite the substantial amount the government would be required to pay if the Indians should prevail on the merits of their taking claim, the Indians should receive from this court a de novo determination of the. merits of that question. Pursuant to that direction we have decided the case. In so doing, we have carried out the obligation Congress imposed upon us in the 1978 jurisdictional statute.

CONCLUSION

The order of the Indian Claims Commission of February 15, 1974 (1) is affirmed insofar as it held that the Act of February 28,1877 constituted a taking of (a) the Sioux land in the Black Hills and (b) the rights-of-way acquired thereunder, but (2) is reversed insofar as it held that the removal of gold from the Great Sioux Reservation prior to February 28, 1877 constituted a taking.

1 This amount consisted of $17,100,000 for the land itself, $3,484 for rights-of-way across other Sioux land, and $450,000 for gold that miners took from the land before the 1877 statute.

2 In Klamath and Modoc Tribes v. United States, the court noted that the government had not contested that certain Indian lands had been "taken, in the strict eminent-domain sense” when they were transferred to the government in 1961 pursuant to an earlier statute terminating federal control over the Indians. 193 Ct. Cl. 670, 689, 436 F.2d 1008, 1017 (1971). In a footnote to that statement the court stated, "The concession by the Government that there was a taking is quite correct .... The 'good faith’ principle of Fort Berthold does not apply to acquisition of Indian land by the Federal Government itself.” Id. n. 25. The plaintiff argues that under that qualification there is no need here to consider "good faith,” since the fact that the United States acquired the Black Hills for its own use without more established a taking.

As noted in the text, the rationale of the "good faith” principle is that there is no taking of Indian property if Congress "has made a good faith effort to realize its full value for the Indians,. . . [where] it has in effect performed the trustee’s traditional function of transmuting property into money.” Id. at 685, 436 F.2d at 1015. Thus, "Congress makes a good faith effort to obtain full value for Indian land, to be sold to others, when it establishes and uses an adequate, competent and impartial appraisal system to value the property.” Id. at 687, 436 F.2d at 1016. Conversely, there is no occasion to consider "good faith” where the United States appropriates Indian lands for itself without attempting to give the Indians the fair equivalent of what it acquires. Where, however, the government contends that it has not taken Indian land in the eminent-domain sense because, although it acquired the land for itself, it nevertheless gave the Indians the fair value of the property, the taking vel non depends upon whether the government meets the "good faith” standard of Three Affiliated Tribes of Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d 686 (1968). Moreover, in this case the lands were taken for ultimate disposition to settlers rather than, as in Klamath and Modoc, for the government’s own continued use.

3 The 1877 Act effected the appropriation of the Black Hills by redefining the boundaries of the Sioux Reservation. That redefinition gave the Indians approximately 900,000 acres of land they had not theretofore had. The defendant does not contend, however, that the transfer of this additional land was a significant element of the consideration the United States gave for the Black Hills.

4 In 1974 Congress amended section 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a, to provide that "expenditures for food, rations, or provisions shall not be deemed payments on the claim.” Pub.L.No. 93-494, 88 Stat. 1499,1500 (1974). The plaintiff argues that the 1974 amendment requires this court to decide the taking claim without regard to either the provision for food rations in the 1877 treaty or the value of the rations actually provided. According to the plaintiff, the 1974 amendment established the general rule that provisions for Indian subsistence cannot be considered compensation.

The legislative history of the 1974 amendment indicates that the amendment was intended to apply to the calculation of offsets following an award, and not to the initial determination whether the plaintiff is entitled to recover an award in a fifth amendment taking claim. The Senate Report on the 1974 amendment states that the amendment was "designed to correct án inequity in connection with the claim of the Sioux tribes of North and South Dakota.” S. Rep. No. 93-863, 93d Cong., 2d Sess. 2, reprinted in [1974] U. S. Code Cong. & Ad. News, 6111, 6112. The report quoted approvingly a statement provided by the Sioux Tribes that "[although couched in general terms, this amendment is directed to . . . expediting . . . disposition of the famous Black Hills case . . . .” Id.

During the House Subcommittee on Indian Affairs’ hearing on the amendment, Representative Meeds, chairman of the subcommittee, stated:

In February of this year, the Indians Claims Commission determined that the United States had, in violation of the fifth amendment to the Constitution, unilaterally taken over 7 million acres of Sioux land which they determined had an 1877 value of $17,100,000. In addition to the value of certain gold taken from the hills area between 1868 and 1877, the total value was set at $17,550,000 upon which the United States was required to pay 5 percent simple interest from the time of taking.

Under the provisions of the Claims Commission Act, the Commission determined that the United States could offset food, rations, and other provisions supplied to the Sioux under the 1877 agreement. If so applied, they would almost totally, or totally wipe out any award the Sioux would try to recover.

It is from this result that the Sioux appeal, and the subject, this bill would remedy.

Amending the Indian Claims Commission Act: Hearing on H.R. 16170 Before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 93d Cong., 2d Sess. 4 (1974) (remarks of Representative Meeds).

Underlying the House Subcommittee hearing was a deep concern for the fate of the Commission’s $17 million award to the Sioux Indians. The subcommittee focused upon the question whether the value of the rations provided to the Sioux should be offset against the Commission’s award with the resulting substantial diminution or possible elimination of the award. There is no indication that, in providing that expenditures for rations were not to be deemed "payments on the claim,” Congress intended to bar consideration of a government commitment to provide subsistence in determining whether the government’s appropriation of the Sioux’s Black Hills lands in 1877 constituted a fifth amendment taking.

The location of the amendment in the paragraph of section 70a dealing with "determining the quantum of relief’ (emphasis supplied) further supports our conclusion. The determination yvhether there has been a taking normally involves the question of liability rather than the quantum of damages.

5 The only significant change the 1877 Act made in the agreement was the elimination of the provision, which the Indians considered particularly objectionable, that the Sioux would move from their reservation to other lands the United States would provide in Indian territory. That change did not alter or affect the consideration the United States gave for the Black Hills.

6 In the Lone Wolf case, the bill of complaint before the lower court recited that the plaintiff and other tribal members were "wholly without remedy at law,” and stated that they would suffer great property loss if the court were to deny injunctive relief. Supreme Court Record on Appeal No. 275 (October Term, 1902) at 15. In their appeal of the lower court’s denial of equitable relief, the appellants argued before the Court that several acts remained to be done before the challenged statute would be fully implemented. Reply Brief of Appellants at 2. Thus, in asserting that "[t]he property of Appellants cannot be taken from them for public use without just compensation,” the appellants were arguing that the Court should prevent actions which, appellants believed, would result in an unconstitutional taking if not promptly enjoined. Brief and Argument of Appellants at 37. As a result of its determination that equitable relief was not available, the Court did not have to reach the ultimate, legal question of entitlement to just compensation.

7 In United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119 (1938), the 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. 304 U.S. at 122, 123-25.