Davis, Judge,
delivered the opinion of the court :
These cases present challenges to the Federal Government's disposition of Indian lands in Oregon. The Klamath Indian Keservation, in that state, was created by the Treaty of 'October 14, 1864 (16 Stat. 707) for the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians. As of November 1953, the reservation consisted of approximately 860,000 acres, the bulk of which was forest, but also included open range, marshland, bush, and farm property. During the 1930's and 1940's continual pressures were exerted both from within and outside of the tribe for termination of federal supervision over it. Internally, two factions favored termination, but differed as to the proper method of accomplishment. One, led by the tribal governing body, demanded the retention of the tribal entity and of tribal rights. The other, headed by Wade Crawford, a member of the tribe and of its executive committee, favored the immediate creation of individual Indian rights, dissolution of the tribe, and distribution of the tribal assets to the individual Indians.
In 1953 the Congress adopted a resolution declaring its policy to be to effect termination, at the earliest possible time, of federal control over various Indian tribes, including the Klamath. The resolution directed the Secretary of the In terior to submit appropriate drafts of legislation to implement this policy, which he did, and on August 13, 1954 Congress enacted the Klamath Termination Act. The basic scheme of that statute, which was acceptable to all tribal factions, was to give each adult member whose name appeared on the final tribal roll an election between withdrawing from the tribe and having his interest in tribal property commuted to money to be paid to him, and, on the other hand, remaining in the tribe and participating in a nongovernmental tribal management plan.
To pay the withdrawing members, the Secretary of the Interior was authorized to employ management experts who would (1) have an appraisal made of all tribal property; (2) determine and select the portion of tribal property which, if sold at the appraised value, would cover the claims of withdrawing members; (3) arrange for the sale of such property and the distribution of the proceeds; and (4) have a tribal management plan prepared for the remaining Indians. These tasks were to be completed at the earliest practicable time but not later than August 13,1958.
The tribal membership was to be determined by closing the tribal rolls as of midnight, August 13, 1954. Upon publication in the Federal Register of the final roll, the rights in tribal property of each person whose name appeared on the roll were to become personal property which was descendible and devisable. (The final roll appeared in the Federal Register on November 21,1957.)
The management specialists retained by the Secretary in turn engaged the Stanford Research Institute to formulate guidelines for the apportionment, selection, sale and distribu tion of the tribal assets. The Institute's preliminary report submitted in 1956 predicted that between fifty and seventy per cent of the members would elect to withdraw from the tribe. The 1954 Act had been drafted on the assumption that only a small proportion of the tribe would so elect. Withdrawal of the larger number would call for the sale of a considerable portion of the tribal assets to generate the money needed to pay the withdrawing members. The Stanford Institute report noted that, since the principal tribal asset was the forest, a massive withdrawal would require the liquidation within a few years of the major part of the timberlands. Such a liquidation, the report stated, would not be in the best interests of either the withdrawing or remaining Indians, or of the regional economy or the nation as a whole. The harm would result because so much timber would have to be sold that it would glut the local market and reduce prices on all timber sold in the area. Moreover, the sales, in the Institute's judgment, if not restricted by a sustained yield requirement, would severely deplete the timberlands and adversely affect the watershed, jeopardizing farm production and water power developments in the Klamath Basin, and subjecting both the remaining timberland and adjacent forests to increased fire hazards and insect attacks.
In response to these unanticipated problems, on August 14, 1957 Congress amended the Termination Act of 1954 by providing that no sales of tribal property could occur until the end of the second session of the eighty-fifth Congress (August 24, 1958), and by extending the final termination date from August 13,1958 to August 13, I960. (The Indians now represented by the Klamath plaintiffs agreed to these extensions, while those represented by the Anderson plaintiffs did not.)
This 1957 Act did not delay the appraisal required by the original legislation, which was performed by Western Timber Services and submitted to the Secretary of the Interior who accepted it on February 20, 1958. In April 1958 the election was held; 1660 members or 77.825 per cent of the tribe chose to withdraw, 473 members to remain. An appropriate segment of the tribal property was set aside to pay the withdrawing members, which consisted of about 78 per cent of the Klamath Forest, an area known as the Klamath Marsh, timberlands not susceptible to sustained yield management, farm and grazing lands, buildings, miscellaneous tracts, and personal property. The remaining tribal property was included in the tribal management plan, and title to it was subsequently transferred by the Secretary of the Interior to a private trustee.
Meanwhile, Congress held hearings on further modifications of the Termination Act, and the Act was again amended on August 23, 1958. This amendment made several significant changes in the termination scheme. First, the sale of any forest units was delayed until April 1, 1959, and the final termination date was extended from August 13, 1960 to August 13,1961.
Second, restrictions were imposed on the maimer of sale of that part of the Klamath Forest selected for disposition. It had to be offered in appropriate units, on competitive bidding, to private purchasers who had to submit plans for the management of the timber resources on sustained yield principles, as well as for the conservation of soil and water resources. These plans were required to be incorporated as conditions in the conveyancing instruments executed by the Secretary of Agriculture. If a condition were breached by the purchaser, a forfeiture clause provided for a reversion of title to the United States. In addition, a minimum price was set for each forest unit, its "realization value". The realization value was to be derived from a review by three qualified appraisers of the prior appraisal by Western Timber Services. Each appraiser was to give full consideration to all reasonably ascertainable elements of land, forest, and mineral values, and was to estimate the fair market value of the forest units as if they had been offered for sale in a competitive market, without limitation on use (emphasis added), during the interval between the adjournment of the Eighty-Fifth Congress (August 24, 1958), and August 13, 1961. In the event of disagreement among the appraisers, this realization value would be determined by averaging their estimates.
Third, the Government was to acquire by proclamation of the Secretary of Agriculture any "sustained yield" units remaining unsold on April 1, 1961 which, together with the Klamath Marsh, did not have an aggregate realization value in excess of $90,000,000. The Klamath Marsh was also to be taken by the Government on April 1, 1961, and administered as the Klamath Forest National Wildlife Refuge.
Finally, the Act provided for the termination of the services of the management specialists and for the transfer of their functions to the Secretary of the Interior.
Pursuant to this 1958 Act, a review appraisal was made by three independent appraisers who were unable to agree on one value. The realization value of these units was determined, therefore, by averaging their estimates. In December 1958 the Secretaries of the Interior and of Agriculture jointly selected the portion of the Klamath Forest to be sold, and divided it into eleven units capable of sustained yield management. The units were advertised for sale, and prospective bidders submitted a number of sustained yield management plans to the Department of Agriculture as required by the 1958 amendments. Plowever, only one actual bid was received for any of the eleven "sustained yield" units — the Antelope Desert Unit — and was accepted. A deed covering this area was executed in May 1960 to a large private corporation.
On April 1,1961, the ten other "sustained yield" units remained unsold, and in accordance with the 1958 Act the Secretary of Agriculture transferred these lands to the National Forest System by Proclamation of April 13, 1961. The realization value, determined by averaging the three review appraisals, was deposited in the Treasury for the withdrawing Indians.
In 1959, Congress changed the date for the acquisition of the Klamath Marsh from April 1, 1961 to the earliest date after September 30, 1959 that proceeds from the sale of stamps under the Migratory Bird Hunting Stamp Act became sufficient to pay for the property. By a Proclamation of September 7,1960, the Klamath Marsh was transferred to the United States for $476,401, the average of the three review appraisals, which was also deposited in the Treasury for the benefit of the withdrawing Indians.
Other tribal property disposed of to pay the withdrawing members consisted of "fringe units" (timberlands not susceptible to sustained yield management), farm and grazing lands and miscellaneous tracts, buildings, and personal property. This property was sold to the highest bidder, without a price floor or restrictions as to use.
On August 12, 1961 the Secretary of the Interior proclaimed the termination of federal supervision over the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians, effective August 13,1961.
Dissatisfied with the monetary results of the termination plan, the tribe filed, in 1961, a claim in this court (No. 125-61) in which it sought, inter alia, damages for the defendant's alleged failure to comply with the Fifth Amendment in its disposition of the tribal property. The tribe's amended petition came to include three individual withdrawing Indians, each suing on his own behalf and as the representative of the withdrawing Indians; and two individual remaining Indians, each suing on his own behalf and as the representative of the Indians who elected to remain in the tribe. (All these complainants are referred to as the Kla-math plaintiffs.)
In 1962, seventy-three withdrawing Indians, each suing on his own behalf, initiated another action (No. 87-62) in which they too claimed, among other things, damages for the defendant's alleged failure to observe the requirements of the Fifth Aunendment. (These Indians are called the Auder-son plaintiffs.)
The cases were consolidated by order of the court in 1964, and the duty of representation was allocated as follows: counsel in Klamath were to represent the individual withdrawing and remaining members named in that amended petition, and all parties similarly situated; plaintiffs in Anderson were authorized to make their case a class action, and counsel in Anderson were to represent the plaintiffs named in that petition, and all parties similarly situated.
To simplify the litigation a separate trial was held on the following issues: (1) the dates of taking of the Klamath Forest and Klamath Marsh; (2) whether or not there was a taking, and, if so, the dates thereof, or other Government liability, for the disposition by defendant of the following categories of property: the Antelope Desert Unit, fringe units, miscellaneous real property, and personal property.
The Klamath plaintiffs contend that the defendant took the Forest and the Marsh on August 23,1958. That date is selected because in their view the restrictions imposed by the Act of August 23,1958, supra, on the sale of the forest units deprived the Indians of control over the areas and assured their acquisition by the defendant. These plaintiffs claim that the same date is applicable to the Marsh because the 1958 Act gave the defendant the exclusive right to acquire it. On the second issue, the Klamath plaintiffs argue that the properties sold to third parties were taken by the defendant by eminent domain without just compensation. They state that the dates of taking are August 23, 1958 — when the 1958 Act became law — for the Antelope Desert, and the sale-dates for the fringe and miscellaneous units and personal property.
The Anderson plaintiffs originally contended that all their property interests had been taken on one date, August 13, 1958. That was the time, absent any amendments to the original 1954 Act, by which federal supervision of the tribe would have had to terminate. Their claim is that the defendant's failure to end its supervision on that date deprived them, without just compensation, of property interests created by the 1954 Act.
For the reasons that follow we hold: (1) There was no eminent domain taking of the Antelope Desert Unit. (2) The ten unsold "sustained yield" units of the Klamath Forest were taken by defendant under the Fifth Amendment on April 15,1961, when it acquired those areas. (3) The Klamath Marsh was taken by eminent domain by defendant on September 7, 1960, when that property was transferred to federal ownership. (4) There was no constitutional taking of the fringe and miscellaneous units or of the personal property; the dates of sale of these units are, however, the appropriate times for assessing any Government liability which may be established in subsequent proceedings.
I
When 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. Three Affiliated Tribes of Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 550-57, 390 F. 2d 686, 690-93 (1968). The court must determine in each instance, with regard to each piece of property, the capacity in which Congress has acted. In the general law of eminent domain there is no universal test to determine, where Congress has not expressed an intention to condemn, whether and when a taking has nevertheless occurred as a result of the Federal Government's conduct; a court must always evaluate the individual circumstances of the case to answer those questions. See United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958); Artwohl v. United States, ante, at 382, 434 F. 2d 1319; Eyherabide v. United States, 170 Ct. Cl. 598, 601, 345 F. 2d 565, 567 (1965); R. J. Widen Co. v. United States, 174 Ct. Cl. 1020, 1027-29, 357 F. 2d 988, 993-94 (1966). Where, however, as with the Antelope Desert, a taking is sought to be predicated on the Government's disposition of Indian property to third parties, the Fort Berthold opinion, supra, provides more detailed guidance. The criterion is whether Congress in disposing of the property has made a good faith effort to realize its full value for the Indians, whether it has in effect performed the trustee's traditional function of transmuting property into money. 182 Ct. Cl. at 553, 390 F. 2d at 691. If the Government does so, there is no taking. If, on the other hand, the Government fails to make such an effort, it can be liable for a taking if it gives or sells the property to a third party. Id. at 557, 390 F. 2d at 693. See United States v. Creek Nation, 295 U.S. 103, 109-10 (1935).
Fort Berthold also recognized that, even if there has been no eminent domain taking, Indians could recover under the Indian Claims Commission Act, provided they could show that the consideration received for the property was so far below its fair market value as to amount to fraudulent conduct, gross negligence, or some other breach, of the Government's fiduciary duty. 182 Ct. Cl. at 551, 390 F. 2d at 690. The present cases come, not under the Claims Commission Act, but under 28 U.S.C. § 1491 and 1505, supra, note 19, and we need not now decide whether the same principle applies. By agreement of the parties, evidence of valuation was excluded from the trial, and therefore any liability predicated on the theory of breach of fiduciary duty as to the Antelope Desert or the other properties sold to third parties must await subsequent proceedings. The problem for the present is solely whether and when constitutional takings occurred.
Antelope Desert: The Klamath plaintiffs do not say that Congress, in the Act of August 23, 1958, supra, actually intended to acquire by eminent domain the Antelope Desert (or the other properties) as of that date. Contrast United States v. Gerlach Live Stock Co., 339 U.S. 725, 731-42 (1950); Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389, 424 F. 2d 574 (1970). Rather, they urge that, even though there may have been no subjective Congressional intention to acquire, by eminent domain, the Antelope Desert for the United States at that very moment, a constitutional taking nevertheless occurred when the statute was enacted. This is so, it is said, because Congress did not make a good faith effort in the Act to obtain for the Indians the full value of the Desert since the legislation imposed substantial restrictions on the disposition of that property. The claim is that the combined effect of these restrictions was to insure that the full value of the Desert would not and could not be realized. Specifically, plaintiffs attack (1) the sustained yield requirement, which in their view confined the potential purchasers to those large enough to invest in a sustained yield forest, (2) the imposition of the realization value of each unit as a price floor, which allegedly was higher than the price private purchasers would be willing to pay if required to practice sustained yield management, and (3) the provision for forfeiture and reversion of title to the United States in the event the purchaser breached the sustained yield requirement.
The simplest answer to these objections (with respect to the Antelope Desert) is that the Klamath plaintiffs have failed to show any harmful impact from the disputed provisions, nor does such a showing seem possible. Our Fort Berthold decision has already settled that 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. 182 Ct. Cl. at 557-58, 390 F. 2d at 693-94. That was undoubtedly done here, and the Antelope Desert was to be sold at no less than the realization value determined by the three expert, impartial appraisers. As plaintiffs recognize, the concept of realization value is derived from fair market value without diminution for limitation on use (see 25 U.S.C. § 564w-1 (c)), and it was imposed as the minimum price of each unit to be sold (Id., § 564w-1 (b)), although a sustained yield covenant was required. In fact, the bid received and accepted for the Antelope Desert was for somewhat more than its realization value — that is, slightly more than fair market value, as evaluated by the appraisers. The conclusion appears inescapable, on the record now before us, that the sustained yield requirement and the realization-value price floor caused the Klamath plaintiffs no legal or economic harm since they received more tlian the unrestricted fair market value, fairly and objectively determined. Nor have the Klamath plaintiffs made any showing that the reversion provision operated to deprive them of any part of the fair market value of the Desert.
What these plaintiffs seem at bottom to argue is that the mere imposition of a sustained yield covenant, as well as the provision for a reversion for breach — even in the absence of any showing of measurable adverse economic impact — was so inimical to the Indians' interest as to constitute bad faith on the part of Congress. We find that position insupportable. The trial commissioner's uncontroverted finding that Kla-math tribal timber had been sold on a sustained yield basis since 1913 negates, in itself, any imputation that Congress imposed the sustained yield covenant in 1958 in order to render the Klamath Forest unsaleable. The record indicates, moreover, that this requirement was exacted because of the Government's belief that sale of the timber units on an unrestricted or clear-cutting basis would have injured the Klamath Basin economy by glutting the local timber market (see note 7, supra), and harmed the area's ecology and scenic beauty by destruction of the watershed and wildlife. Congress bore a high fiduciary obligation to all members of the Tribe (Seminole Nation v. United States, 316 U.S. 286, 297 (1942)), and the Stanford Institute Report indicated that a large proportion of the withdrawing members would remain in the region. The Klamath plaintiffs seem to suggest, however, that because sustained-yield management benefits non-Indian residents of the area as well as Indians the defendant fails the good faith test of Fort Berthold. But if the valid interests of the Indians are not injured, it cannot be held against Congress that it takes account, in addition, of the needs of the general public in the region. Congress established sustained yield in order to insure the economic and ecological viability of the Klamath area. Obviously, the benefits of a viable environment inure to all its occupants, but that does not show that the Indians' interests were in any way impaired or sacrificed by their guardian in its sale of the Antelope Desert. On the contrary, there is no reason to infer that true Indian interests were harmed at all.
The forfeiture provision may best be viewed as the enforcement mechanism for the sustained yield covenant. In that light, it is quite reasonable and logical. Once payment for the Antelope Desert was received, the money — equivalent to the fair market value — was deposited in the Treasury to the account of the withdrawing Indians. They therefore realized immediately the full benefit of the sale, and any additional interest in the property granted to them, such as a reversion, would be a windfall. Moreover, it would be difficult to provide a mechanism for a reversion of the land, or even its equivalent in money, to the scattered individual withdrawing Indians. To provide a reversion to the tribe, on the other hand, would be to give the non-withdrawing members a windfall, since those members had no interest in the parcels set aside to pay the withdrawing Indians. The Federal Government was the most apt candidate to enforce the covenant. The mere remedy of an injunction by the Government to cure breaches, or for money damages, was obviously deemed insufficient. In that situation, there was no infringement of Indian rights through the provision which created the stronger sanction of a reversion in favor of the defendant.
In sum, we cannot conclude on the record before us that Congress failed to make a good faith effort in the 1958 Act to realize the full value of the property, and we therefore hold that there was no taking of the Antelope Desert by the passage of that statute or its implementation.
The unsold " sustained yield" units of the Kla/math Forest: Much of what we have said in considering their Antelope Desert claim answers the Klamath plaintiffs' argument that the ten unsold "sustained yield" units were also taken by the 1958 Amendment on August 23, 1958. Unlike the Desert, these units were transferred to the Government on April 13, 1961, and the defendant does not contest that they were taken, in the strict eminent-domain sense, at that time. But plain tiffs urge tbe earlier taking-date because of tbe sale-restrictions in tbe 1958 amendments. We have already stated wby tbe sustained yield and reversion provisions did not amount to a taking of tbe Antelope Desert; those reasons are even more forceful for the unsold units as to which those terms could have no possible impact because there was no conveyance (to a private purchaser) incorporating them. The Government took full title, without restriction, and. will pay full fair market value as of the taking-day in April 1961. Where, as here, there is no actual interference with substantial property rights and no Congressional intention to take at once — as there was not on the passage of the 1958 legislation — there is no taking. Cf. Eyherabide v. United States, supra, 170 Ct. Cl. 598, 601, 345 F. 2d 565, 567 (1965).
The Klamath plaintiffs also predicate an immediate taking of the ten unsold Forest units on other parts of the 1958 Act. They object both to the provision for review appraisals and to the concept of "realization value" which the review appraisers were to fix. The complaint against these appraisals is that they produced an even lower valuation than the original Western Timber Services appraisal, which the Indians believed undervalued their assets significantly. But the record indicates that Congress provided for review appraisals precisely because of Indian dissatisfaction with the Western Timber Services report. Moreover, the procedure which Congress imposed for the review (separate reports by three independent appraisers with an averaging device as a dispute-settling mechanism) strikes one as eminently fair. That the later appraisals happened to produce a lower rather than a higher valuation of the ten units is not, of course, an invasion of the Indians' constitutional rights. This is not a case in which a diminution in value is caused by the Government's unfair prolongation of the taking process or by a deliberate effort to drive down the compensation to be paid (see Foster v. City of Detroit, 254 F. Supp. 655 (E.D. Mich. 1966), af firmed, 405 F. 2d 138 (C.A. 6, 1968) ), nor is there any reason to believe that this aspect of the 1958 amendment was designed by Congress for such unjust ends. See, also, infra, "The 1958 Act as a whole."
What the review appraisers were to estimate (called "realization value" in the Act) was the fair market value of the forest units, as if they had been offered for sale on a competitive market, without limitation on use, during the interval between the adjournment of the 85th Congress (August 24, 1958), and August 13, 1961. The Klamath plaintiffs, misreading the latter phrase as imposing the requirement upon would-be purchasers of the ten units that they resell the units within the three-year interval, attack the restriction as unreasonable. The challenged provision does not, however, contain that limitation at all. It simply posits, for purposes of valuation, an initial sale of the units hy the Government within that interval; it imposes no assumption whatever as to any resale by the purchaser. The only arguable deviation from the conventional formula for determining fair market value was the three-year span of the sales by the Government, and no evidence was adduced that that period was an unreasonably short one in which the sale of this Klamath property had to occur. Without such evidence, we cannot say that it was. There is no basis in judicial notice for finding three years too limited a time for applying the "willing buyer-willing seller" standard of fair market value, and on its face a three-year period would not seem unfairly truncated even for properties of this size.
The 1958 Act declared that any "sustained yield" units remaining unsold on April 1, 1961, which together with the Ellamath Marsh had a realization value not in excess of $90,000,000, would be transferred to the National Forest System. The Klamath plaintiffs object to this provision, under which the ten units were ultimately taken, as insuring that the defendant would acquire the lands, while at the same time setting an arbitrary value for them which deprived the plain tiffs of just compensation. Again, these plaintiffs misconstrue both the purpose and the operation of the $90,000,000 limitation. As previously noted, Congress imposed a minimum price on each unit of Klamath land, its realization value. The $90,000,000 clause of the 1958 Act was a way of assuring, within the limits of available public funds, that the Indians would receive that minimum price. If private purchasers were unwilling to acquire the lands at their realization value by April 1,1961, then the Government would pay that price for as many of the unsold units as it could afford for $90,000,-000. In no sense does this figure represent an arbitrary value placed on the Klamath lands; rather, it simply represents a budgetary limitation, the maximum amount of public funds that Congress was willing to expend to acquire any part of the tribal property. In other words, Congress did not say that any and all unsold Klamath lands would be acquired on April 1, 1961 for $90,000,000, but only that so much of the land would be taken as could be acquired for that sum. No arbitrary or legislative value was placed on the lands, individually or as a whole. The acquisition of the ten unsold units is therefore entirely unlike the disposition of "school lands" in the Fort Berthold case: lands granted by statute to the State of North Dakota for school purposes, for which the Government paid the Indians the arbitrary amount of $2.50 an acre, without any showing that this compensation bore any relation to the value of the land. Three Affiliated Tribes of Fort Berthold Reservation v. United States, supra, 182 Ct. Cl. 543, 558-59, 390 F. 2d 686, 694-95 (1968).
There remains only to add, on these ten Klamath Forest units, that the record is clear that, until the lands were turned over to the Federal Government in 1961, the defendant continued to administer the areas for the benefit of the withdrawing Indians, and all income generated by the lands was credited to the withdrawing group. All the units were treated as Indian land until the actual transfer.
For these reasons, we hold that the ten unsold "sustained yield" units of the Klamath Forest were taken on April 15, 1961 when they were transferred by Proclamation of the Secretary of Agriculture to the National Forest System.
The Klamath Marsh: This tract, unlike the ten unsold Klamath. Forest units, was definitely to be taken under the 1958 Act, although the date was subsequently advanced from that originally provided (see supra) . The Marsh was taken by proclamation on September 7, 1960. It contained no commercial timber and was never offered for sale; it was therefore never the subject of a sustained yield covenant, reversion provision, minimum price term, etc. The Marsh's realization value, as determined by the three review appraisals, was not only identical with its fair market value as set forth in those appraisals, but was also higher than the previous valuation affixed by Western Timber Services. Finally, as with the ten Forest units, it is uncontested that the defendant continued to administer the property for the group of withdrawing Indians until the time of actual transfer, and that all revenues from the Marsh were credited to them until that time.
The only argument which would support a taking of the Marsh on August 23,1958, as claimed by the Klamath plaintiffs, is that the mere passage of the 1958 Act, which expressly authorized a taking of the Marsh at a later time, itself constituted a taking. A similar contention was squarely rejected by the Supreme Court in Creek, Nation v. United States, 302 U.S. 620 (1938). An 1891 Act had opened certain Creek lands to settlement and sale, and it was contended that the lands were taken as of the passage of the Act. The Court held, however, that the takings occurred only upon the actual disposition of lands under the Act, and that those dates of disposition were the proper ones for valuation. See too United States v. Goltra, 312 U.S. 203, 209 (1941); United States v. Sponenbarger, 308 U.S. 256, 267-68 (1939). It is also established law that neither the adoption of a plan of acquisition, Willink v. United States, 240 U.S. 572, 579-80, nor even the filing of a map under a plan of acquisition, Bauman v. Ross, 167 U.S. 548, 596 (1897); Shoemaker v. United States, 147 U.S. 282, 308-320 (1893), constitutes in itself a taking. And it is not at all unknown for Congress to provide for eminent domain takings to be effected in the future. See, e.g., Drakes Bay Land Co. v. United States, supra, 191 Ct. Cl. 389, 407 ff., 424 F. 2d 574, 584 ff. (1970).
Fringe lands, ete.: What is left is the disposition of the fringe and grazing units, farm lands, miscellaneous and personal property. All of this property selected for sale was sold to the highest bidder without limitation on use and without any minimum price. The disposition of the property was delayed by the provisions of the 1957 Act, but not by the 1958 legislation, and was unaffected by the requirements of review appraisals and sustained yield covenants. The sales of these units were not encumbered by any restrictions and there is no evidence before us, or reason to believe, that their disposition was other than a good fait'h effort by the defendant to realize their full value for the Indians. There is therefore no possible basis for holding that the Government took them at any time.
The 1958 Act as a whole: Finally, the point is pressed that, even though none of the separate provisions of the 1958 Act would so taint the disposition-plan, individually or by themselves, as to invoke the concept of an involuntary taking, the combination of all the statutory parts does require us to hold that the Act as a whole constituted such a taking. We explicitly reject that view, as we have already done implicitly. Our discussion of the separate provisions, as they apply to this case, shows that the passage of the Act did not impose such immediate interferences with the Indians' use, possession, or rights as to require compensation to be paid as of the date of enactment, August 23,1958. Nor is there any reason to question the good faith of Congress in passing the 1957 and 1958 amendments, or to determine that those pieces of legislation were deliberately or necessarily designed to diminish the Indians' rightful compensation, or to give them less than the full value to which they were entitled. The Congressional history indicates otherwise. It shows that Congress was concerned with and aware of all of the Indians' interests and rights, and tried to satisfy them without harm to either the withdrawing or remaining members, or to the general interests of the community in which those Indians had lived and in which most (or a large part of them) would continue to dwell. See H. Rep. No. 319, 85th Cong., 1st Sess. (1957); S. Rep. No. 92, 85th Cong., 1st Sess. (1957); H. Rep. 2278, 85th Cong., 2d Sess. (1958); S. Kep. 1518, 85th Cong., 2d Sess. (1958). See, also, Part II, infra.
II
The Anderson plaintiffs have a quite different theory. Their point is that the Antelope Desert, the ten unsold "sustained yield" units of the Klamath Forest, and the Klamath Marsh were all taken by the United States on August 13, 1958. On that date (to be distinguished from August 83, 1958, the day the 1958 Act was enacted), in the absence of any changes in the original Klamath Termination Act of 1954, federal supervision over the tribe would terminate under that legislation. These parties contend that the passage of the 1954 Act gave the withdrawing tribal members vested property interests not subject to later Congressional modification or defeasance, and that the failure of Congress to follow through on the initial 1954 plan constituted such a gross interference with these firm rights of the withdrawing Indians as to constitute a taking.
One flaw in this position is that the 1954 Act itself stated that personal property rights of the individual members in tribal property would be created when the final tribal roll was published in the Federal Register. Even in the absence of such a statutory provision, the rule is well settled that no individual vested rights are normally created in Indians until promulgation of the final roll. Choctaw Nation v. United States, 120 Ct. Cl. 734, 737-41, 100 F. Supp. 318, 3202-2 (1951), cert. denied, 343 U.S. 955 (1952). In this case the final roll was not published until November 21, 1957. Previously, on August 14, 1957, Congress had amended the 1954 Act, extending the final termination date to August 13, 1960. Thus, even if we were to accept arguendo their view of the consequences of "vesting", we would have to hold that, as of the date the final roll was promulgated, the Anderson plaintiffs had no right, vested or otherwise, to the original August 13,1958 termination on which they now insist.
We would, in any event, be loath to adopt the argument that the mere passage of the original Termination Act gave the Anderson plaintiffs immutable rights. That rule would in effect freeze Congress into a position once taken and deny it the right to accommodate its Indian enactments, within a short time, to changed circumstances. What necessitated the 1957 and 1958 amendments in this case was in no sense a Congressional desire to deprive the Indians of the fair value of their lands, or to reduce their compensation, but the recognition that substantially greater numbers of Indians would choose to withdraw than had been anticipated in drafting the 1954 legislation. In 1957 Congress gave itself more time to consider the consequences of a massive withdrawal by delaying the termination scheme, and in 1958 it substantially modified its original plan to meet that prospect. Courts should not look with squinty eyes at such bona fide modification of Indian legislation to fit changed or new-found circumstances, especially where it is obvious, as in this instance, that the whole matter is still in flux and that individual rights have not yet become firm or settled in any realistic sense.
It may be, as plaintiffs say, that the postponement in the dates of acquisition or sale of the tribal lands happened to coincide with a drop in the timber market, but such a detriment-in-fact would be on the same remediless plane as a good faith failure by Congress to pass the original Termination Act until 1958 because of differences of opinion or slowness in the grinding of the legislative mills — or, for that matter, the failure of Congress to pass the original Termination Act some years before 1954. No one could say that such a Congressional delay, even though it resulted in a loss-in-fact, would amount to an involuntary taking. We think that what occurred here was entirely comparable, and that any decline in values after August 1958 (not due to the passage of the Termination Act of 1954) must be borne by plaintiffs as part of the non-reimbursable cost of our accepted legislative process.
Nor are the Anderson plaintiffs right in their claim that the 1954 Act created a contract, between the Federal Government and the thereafter-withdrawing Indians, which had to be carried out, in terms, at the peril of a breach of obligation by the United States. The language of the statute neither expresses nor implies such an undertaking, and its legislative history does not show any purpose on the part of Congress to bind the United States. A contractual agreement of this type would require some definite expression of such intent, and there was none here. Cf. Chippewa, Indians of Minnesota v. United States, 307 U.S. 1, 4-5 (1939); Pillager Bands of Chippewa Indians v. United States, 192 Ct. Cl. 698, 707, 428 F. 2d 1274, 1279 (1970). The Anderson plaintiffs, in a word, stand on no higher or different ground than do the Klamath plaintiffs.
Ill
We hold, in summary:
1. There was no eminent domain taking by the defendant of the Antelope Desert Unit or of the fringe or miscellaneous units, or of personal property. If a claim of breach of fiduciary duty (through failure to obtain a good price) is made as to these properties, the valuation dates should be May 3,1960 for the Desert unit (when it was sold to a private corporation) and the various dates of sale for the other assets.
2. The ten unsold "sustained-yield" units of the Klamath Forest were taken by the defendant by eminent domain on April 15,1961, and should be valued as of that date.
3. The Klamath Marsh was taken by the defendant by eminent domain on September 7,1960, and should be valued as of that date.
In valuing the ten units of the Klamath Forest and the Marsh for just compensation purposes, there should be excluded from the fair market value on the respective valuation dates any diminution or enhancement in value attributable to that portion of the Klamath termination project which envisaged acquisition (potential or certain) by the Federal Government of the lands. Drakes Bay Land Co. v. United States, supra, 191 Ct. Cl. 389, 408, 424 F. 2d 574, 584 (1970).
The case is remanded to the trial commissioner for further proceedings in accordance with this opinion.
APPENDIX
Excerpt From Commissioner Spector's Opinion
III
Contentions of the Parties
A. The Klamath Plaintiffs' Claims
With respect to the first issue, the Klamath plaintiffs contend that defendant took the 10 forest units and the marsh on August 23,1958. They have selected this date as the date of taking of the forest units because in their view the restrictions imposed by the Act of August 23,1958 upon the sale of the forest units, deprived them of control over the units and assured their acquisition by defendant, and their incorporation into the National Forest System. They claim that the following provisions combined to preclude the purchase by private purchasers of most or all of the forest: (1) The sustained yield requirement, which served to reduce the poten tial purchasers to those large enough to invest in a sustained yield forest; (2) the imposition of a price floor on each unit, which allegedly was higher than the price private purchasers would be willing to pay if required to practice sustained yield management; and (3) the provision for forfeiture and reversion of title to the United States (for its own use and not in trust for the Indians) in the event the purchaser breached the sustained yield requirements. Moreover, the Klamath plaintiffs claim that the restrictions on the sale of the forest units decreased the value of the units, and thus prevented plaintiffs from receiving the fair market value of the units if offered on an open market without restrictions. As relief they ask for the difference between the fair market value of the units on the date taken and the price received, plus interest from the date of taking.
The Klamath plaintiffs have selected August 23, 1958, as the date of taking of the marsh because by the terms of the Act of August 23, 1958, defendant was thereby given the exclusive right to acquire the marsh.
Although defendant concedes that it took both the marsh and the 10 sustained yield units, it takes the position that the dates of taking must be established by looking to the termination legislation itself. That legislation, it maintains, governs the rights of the parties. Thus, defendant contends that September 7, 1960, must be found as the date of taking of the marsh, since title to it was acquired on that date by Proclamation of the Secretary of Agriculture, as provided by the Act of August 23, 1958, as it was amended by the Act of September 9, 1959. Likewise, defendant contends that April 15,1961, must be found as the date of taking of the forest units which remained unsold on April 1, 1961, since title to them was acquired on that date by Proclamation of the Secretary of Agriculture, as provided by the Act of August 23,1958.
With respect to the second issue, the Klamath plaintiffs maintain that defendant took the properties sold to third parties without paying just compensation therefor as required by the fifth amendment, on the following dates: Antelope Desert Unit, August 23, 1958; personal property, on the dates of sale; fringe units (timberland not susceptible to sustained yield management and grazing lands), on the dates of sale. In addition, they claim the value of minerals and water rights, as well as power sites, were taken by defendant when the land to which they were attached or associated was taken. As relief they ask for the difference between the sale price of these properties and their fair market value on the dates taken, plus interest from the dates of taking.
The Klamath plaintiffs contend that the Antelope Desert Unit was taken by defendant on August 23, 1958, because the restrictions placed upon the sale of this property by the Act of August 23, 1958, prevented them from receiving the fair market value of the unit. Because defendant did not acquire title or beneficial interest of this unit, the Kla.ma.fh plaintiffs contend that a compensable taking can (and did) occur without the federal acquisition of title or the effecting of occupancy, if the effect of the governmental action was to deprive the owner of all or most of his interests in the property. They claim that the restrictions deprived them of the fair market value of the unit because the sustained yield requirement decreased the amount which could have been obtained for the unit if offered on the open market without restrictions as to use.
Moreover, they contend that a conveyance of Indian property by defendant to third parties can constitute a compensable taking, if designed to satisfy the interests of the Government or of third parties. They urge that the restrictions imposed by the 1958 Act upon the sale of the Antelope Desert Unit, which were incorporated as conditions in the conveyance of the unit, were motivated by defendant's desire to enforce conservation measures and to protect the economic welfare of the tribe's neighbors. They claim that defendant imposed the sustained yield requirement because of its concern that, absent such a requirement, the sale of the timber units on a clear cutting basis would have caused damage to the economy of the Klamath Basin through the glutting of the local timber market, and in the destruction of the watershed, water resources, wildlife, and scenic beauty resulting from the elimination of the forest.
This last ground forms the basis for the Klamath plaintiffs' alternative theory of recovery, based generally on the manner in which defendant terminated its supervision over plaintiffs and their property. They claim that, at least throughout the termination process, defendant owed them the duties of a fiduciary because of their status as wards of the Federal Government. They contend that among the duties of defendant, as a fiduciary, was that of safeguarding plaintiffs' property interests by acting at all times with their best interests in mind. They claim that defendant breached this duty by the amendments to the 1954 Act which were primarily designed to protect non-Indian interests. They point to the restrictions imposed by the 1958 Act upon the sale of the timber units, as the means used by defendant to effect the protection of these non-Indian interests. Since, in their view, defendant was under a duty to obtain the highest price possible for the units, and since the restrictions placed on the sale of the units prevented them from receiving the fair market value of the units, they ask for the difference between the fair market value of the units on August 23, 1958, and the sale price, plus "interest as provided by law."
Defendant denies that it took the Antelope Desert Unit, since nothing in the termination legislation authorized the federal acquisition of that unit, and since it was not in fact acquired by defendant. It therefore contends that any liability for the sale of the unit must be rooted in its failure, if any, to observe the standard applicable when the United States sells property for the benefit of Indians. Defendant contends that, to recover, plaintiffs must show that the price received for the Antelope Desert Unit was so far below the fair market value as to constitute gross negligence, fraudulent conduct, or an abuse of defendant's fiduciary duties. Defendant also contends that, in the event relief is given on this claim, plaintiffs are not entitled to interest. Its position is that, where relief is not predicated on the fifth amendment, interest cannot be assessed against the United States in the absence of a treaty, statute, or contract requiring the payment of interest. It claims that no such treaty, statute, or contract exists in the present case.
With respect to the sale of the fringe units and the personal property, defendant takes the position that Klamath plaintiffs' proposed findings should be disregarded because of tbeir failure to cite evidence in support of the alleged dates of taking.
Finally, defendant concedes that the value of minerals, power sites, and water rights should be considered when determining the value of the land to which these rights were attached or associated at the time the land was taken.
B. The Anderson Plaintiffs' Claims
Unlike the Klamath plaintiffs, the Anderson plaintiffs represent only the interests of withdrawing Indians. As previously outlined, the Anderson plaintiffs consist of 150 withdrawing Indians, each suing on his own behalf and as representative of the Indians who withdrew, and as representative of the class of Indians who withdrew and who objected to the amendments to the Termination Act of August 13, 1954. Also unlike the Klamath plaintiffs, the Anderson plaintiffs contend that their property interests were taken by defendant on one date, August 13, 1958. On that date, absent the amendments to the 1954 Act, federal supervision over the tribe and its members would have terminated. The essence of the Anderson plaintiffs' claim is that defendant's failure to terminate federal supervision on the date provided by the Termination Act of 1954 deprived them, as of that date, of property interests for which they have not been justly compensated as required by the fifth amendment.
According to the Anderson plaintiffs, these property interests were created in their favor by the Termination Act of 1954. They contend that prior to the enactment of the Act, as members of the tribe they possessed individual property interests in the tribal property which consisted of a mere privilege of use in communal property during each plaintiff's lifetime. They insist that the 1954 Act altered the status of each member's rights in the communal or tribal property by specifically endowing each member, whose name appeared on tlie final tribal roll, with a "beneficial interest" in the tribal property. By the Termination Act of 1954, that beneficial interest was declared to be personal property which could be bequeathed and inherited and which, with the approval of the Secretary of Interior, could be alienated or encumbered.
In addition to asserting that the interest of each tribal member, regardless of whether he elected to withdraw or remain in the tribe, became a "personal property" interest, the Anderson plaintiffs maintain that, by virtue of the 1954 Act, the personal property interest of the withdrawing members acquired an additional characteristic. The 1954 Act required defendant to set aside that portion of the tribal estate which, if sold at the appraised value, would provide sufficient funds to pay to the withdrawing Indians the money equivalent of their property interest in the tribal property. The Anderson plaintiffs contend that, when a portion of the tribal property was so set aside, it ceased to be part of the tribal property and instead became property held by defendant on behalf of the withdrawees. It is to this property that the Anderson plaintiffs' property interests allegedly attached. Since, in their view, the 1954 Act obligated defendant to sell the property in order to satisfy their interests therein, the Anderson plaintiffs contend that, contrary to the Constitution, these interests were impaired when by August 13,1958, defendant had failed to dispose of the property and to distribute the proceeds to the withdrawees, as provided by the Act. They also contend that their interests in the property set aside were further impaired when a sale of the property in the manner originally contemplated by the 1954 Act, was burdened by the restrictions imposed in the amendments to that Act.
Apart from their fifth amendment claim, the Anderson plaintiffs assert an additional ground for holding defendant liable for the manner in which it effected the termination of federal supervision. They contend that, by failing to complete the termination process by August 13, 1958, defendant breached an agreement between it and the with-drawees to sell the property set aside for their benefit and to distribute the proceeds by a date no later than August 13, 1958. As relief they ask for damages, presumably the difference between the fair market value of the property set aside on August 13, 1958, and the price actually received, plus interest as of August 13,1958.
As previously indicated, prior to the termination of federal supervision, there were two factions favoring termination but opposed to one another as to the manner in which termination should be accomplished. The faction led by the tribal governing body insisted on retaining the tribal entity and tribal rights; the other faction favored the immediate vesting of the individual Indian's rights, the dissolution of the tribe, and the immediate distribution of the tribal assets to the individual Indians. Prior to the enactment of the 1954 Act, representatives of both factions agreed that the termination legislation pending before Congress should be amended to provide for (1) an appraisal of the tribal assets; (2) an opportunity for each member to determine whether to withdraw from the tribe and have his interest converted into money, or to remain in the tribe and participate in a tribal enterprise; and (3) a selection and sale of those tribal assets which, if sold on the basis of the appraised value, would generate sufficient funds to pay the withdrawing members their shares in the tribal property. These principal points of agreement were submitted by a representative of the Interior Department to the House Subcommittee on Indian Affairs, which adopted them as amendments to the proposed termination legislation. They subsequently became part of the 1954 Termination Act.
The Anderson plaintiffs now contend that the United States became bound by the aboye described agreement when Congress incorporated the amendments into the 1954 Act, and when the President signed the Act into law. They allege that defendant breached this agreement when, contrary to its terms and without the consent of the withdrawees, it failed to dispose of the property set aside for their benefit and to distribute the proceeds by August 13,1958, as provided by that Act; and when, through subsequent amendments to the Act, it imposed restrictions upon the sale of the property set aside, and repudiated the single appraisal provided by the original 1954 Act embodying the agreement. They contend that defendant cannot excuse the breach on the ground that it was exercising its political sovereignty, because with respect to the withdrawees, defendant was acting in its capacity of trustee for its Indian wards.
With regard to the Anderson plaintiffs' taking claim, defendant denies that it took any of their property, except that to which it acquired title, namely, the Klamath Marsh and the 10 unsold sustained yield forest units. With respect to these properties, defendant contends that the termination legislation is conclusive as to dates of taking. That legislation, it asserts, precludes a finding that August 13, 1958, was the date of taking of those properties because nothing in the legislation provided for federal acquisition of those properties on that date or any other date, except the dates on which the United States in fact acquired those properties. Thus, as in the Klamath case, defendant argues that liability, if any, under the fifth amendment must be measured from the actual, physical dates of taking.
Defendant, moreover, denies that the Anderson plaintiffs acquired title or other property interests in the property selected for sale for their benefit. Its position is that the 1954 Act did not alter the status of tribal property, as tribal property. On the contrary, it points out that section 6 of the Act authorized it to convey title to tribal property, which if sold at tlie appraised value, would provide sufficient funds to pay the members who elected to have their interests in tribal property converted into money. It further maintains that the status of the property was not altered by the provisions of the Act requiring the closing of the tribal roll and declaring that, upon the publication of the final roll, the interests in the tribal property of each member would constitute inheritable and devisable "personal property." It alleges that those provisions were designed (1) to establish an unchanging membership in the tribe which up to that time began and ended with the birth and death of a member, and (2) to permit the share of each member to pass to heirs or devisees, since prior to the Act the rights of a member in tribal property could not be bequeathed or inherited. It therefore contends that, at most, the 1954 Act gave the withdrawees the right to share in the proceeds from the sale of the property set aside for their benefit, which right, it alleges, was complied with. Alternatively, defendant maintains that even if plaintiffs acquired a property interest in the property selected for sale, under the fifth amendment it can only be liable for that portion of such property as it acquired and that such liability must be determined as of the dates of taking provided by the termination legislation.
With respect to the breach claim, defendant denies the existence of a contract which bound it to perform the obligations embodied in the 1954 Act, and precluded it from modifying those obligations through amendments to that Act. In the first place, defendant points out that its representatives at discussions preceding the enactment of the 1954 Act did not have the authority to bind the United States. Moreover, it denies that Congress intended by the 1954 Act to create a binding agreement with plaintiffs, absent a contrary indication in the Act itself or in its legislative history. Finally, defendant insists that the contract must fail for lack of identifiable parties. It contends that the Anderson plaintiffs could not have been parties to a 1954 agreement, since their identity as withdrawees was not known until the election held in April 1958.
FINDINGS OF FACT
The court, having considered the evidence, the report of Trial Commissioner Louis Spector, and the briefs and arguments of counsel, makes 'findings of fact as follows:
1. (a) The petitions in these two actions were filed pursuant to the provisions of 28 TJ.S.C. § 1491 and 28 U.S.C. § 1505 (1964).
(b) Plaintiffs in docket No. 125-61 consist of:
(1) The Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, suing on their own behalf, and as the representative of their members or former members (or their heirs, executors, administrators, or assigns), individually and collectively, including (a) members or former members who elected, or for whom an election was made, to "withdraw" (as that term is hereinafter employed), and (b) members or former members who did not elect, or for whom no election was made, to "withdraw";
(2) one thousand three hundred eighty-two (1,382) individual Indians who elected, or for whom an election was made, to withdraw, each suing on his own behalf and as representative of members or former members (or their heirs, executors, administrators, or assigns), who elected to withdraw or for whom an election was made to withdraw; and
(3) two Indians who did not elect, or for whom no election was made, to withdraw, each suing on his own behalf and as the representative of the members or former members (or their heirs, executors, administrators, or assigns) who did not elect or for whom no election was made to withdraw.
(c) Plaintiffs in docket No. 81-62 consist of one hundred fifty (150) individual Indians who elected to withdraw, each suing on his own behalf, and as representative of the Indians who elected to withdraw and as representative of the class of Indians who elected to withdraw, and who objected to the amendments to the Act of August 13,1954, as later detailed.
(d) By order of April 24,1964, the court ordered the consolidation of the cases for all further proceedings. It also ordered counsel in docket No. 125-61 to represent the parties named as plaintiffs in the first amended petition, and all parties similarly situated. It authorized plaintiffs in docket No. 87-62 to amend their petition to make their case a class action, and ordered counsel in that case to represent the parties named as plaintiffs in the petition, and all parties similarly situated.
(e) At the pretrial conference held on September 19,1967, the following issues were set for separate trial:
(1) Dates of taking of the Klamath Marsh and Klamath Forest, including water and mineral rights;
(2) whether there was a taking or other Government liability for the disposal by the defendant of the following categories of property: Antelope Desert Unit, fringe units, miscellaneous real property, personal property, and hunting and fishing rights. The issues as to water and hunting and fishing rights, were to apply to the land retained by the remaining members as well as to the land allegedly taken or disposed of by the defendant.
2. By the Treaty of October 14, 1864, 16 Stat. 707, the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians ceded to the United States all right, title and claim to all the country claimed by them, except for a reservation set aside as their residence, and which is commonly known as the "Klamath Keservation." By virtue of the Treaty, the United States had legal title to the reservation, and the tribe had the beneficial interest therein.
3. In November 1953, the tribe still had a beneficial interest in approximately 861,125 acres of reservation lands, which consisted of 693,997 acres of commercial and noncommercial forests, 127,938 acres of open range, 23,421 acres of marshland, 14,524 acres of bush or wasteland and 1,245 acres of farmland. The principal asset was the forest, which consisted mainly of ponderosa and sugar pine. Since 1913, timber had been sold on a sustained yield basis under which only annual or somewhat longer increments of growth were cut. The tribe had been realizing an annual gross income of about $2,000,000 in the most recent years from these sales.
4. From time to time during the 1930's and 1940's, pressures were exerted from both within and without the tribe for termination of federal supervision over the property of the tribe and its members. Within the tribe, two determined factions favored termination, but were in disagreement as to the manner and time in which such termination should be effected. One faction, led by the tribal governing body, insisted on retention of the tribal entity and tribal rights. The other faction, led by one Wade Crawford, a member of the tribe and of its executive committee, favored the immediate creation of individual Indian rights, dissolution of the tribe, and immediate distribution of the tribal assets to the individual Indians. Prior to the enactment of the 1954 Termination Act (hereinafter quoted in full), representatives of both of these factions had agreed that the termination legislation then pending before Congress should be amended to provide for (1) an appraisal of the tribal assets, (2) an opportunity for each member to determine whether to withdraw from the tribe and have his interest converted into money, or to remain in the tribe and participate in a tribal enterprise, and (3) a selection and sale of those tribal assets which, if sold on the basis of the appraised value, would generate sufficient funds to pay the withdrawing members their shares in the tribal property. These principal points of agreement were submitted by a representative of the Interior Department to the House Subcommittee on Indian Affairs, which adopted them as amendments to the proposed termination legislation. They subsequently became part of the 1954 Act, as hereinafter set forth.
5. On August 1, 1953, the Congress adopted House Concurrent Eesolution 108, 67 Stat. B132, which in pertinent part reads as follows:
INDIANS
Whereas it is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship; and
Whereas the Indians within the territorial limits of the United States should assume their full responsibilities as American citizens: Now, therefore, be it
Resolved by the House of Representatives (the Senate concurring), That it is declared to be the sense of Congress that, at the earliest possible time,. all of the following named Indian tribes and individual members thereof, should be freed from Federal supervision and control and from all disabilities and limitations specially applicable to Indians: the Klamath Tribe of Oregon . It is further declared to be the sense of Congress that the Secretary of the Interior should examine all existing legislation dealing with such Indians, and treaties between the Government of the United States and each such tribe, and report to Congress at the earliest practicable date, but not later than January 1, 1954, his recommendations for such legislation as, in his judgment, may be necessary to accomplish the purposes of this resolution.
6. On January 4,1954, the Assistant Secretary of Interior submitted to Congress a bill to terminate within 4 years federal supervision of the Klamath Tribe and its members. Subsequently, on August 13,1954, Congress enacted P.L. 587, Act of August 13,1954, ch. 732, 68 Stat. 718, which reads as follows:
AN ACT
To provide for the termination of Federal supervision over the property of the Klamath Tribe of Indians located in the State of Oregon and the individual members thereof, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the purpose of this Act is to provide for the termination of Federal supervision over the trust and restricted property of the Klamath Tribe of Indians consisting of the Klamath and Modoc Tribes and the Yahooslrin Band of Snake Indians, and of the individual members thereof, for the disposition of federally owned property acquired or withdrawn for the administration of the affairs of said Indians, and for a termination of Federal services furnished such Indians because of their status as Indians.
Seo. 2. For the purposes of this Act:
(a) "Tribe" means the Klamath Tribe of Indians consisting of the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians.
(b) "Secretary" means the Secretary of the Interior.
(c) "Lands" means real property, interests therein, or improvements thereon, and include water rights.
(d) "Tribal property" means any real or personal property, including water rights, or any interest in real or personal property, that belongs to the tribe and either is held by the United States in trust for the tribe or is subject to a restriction against alienation imposed by the United States.
(e) "Adult" means a member of the tribe who has attained the age of twenty-one years.
Sec. 3. At midnight of the date of enactment of this Act the roll of the tribe shall be closed and no child born thereafter shall be eligible for enrollment: Provided, That the tribe shall have a period of six months from the date of this Act in which to prepare and submit to the Secretary a proposed roll of the members of the tribe living on the date of this Act, which shall be published in the Federal Register. If the tribe fails to submit such roll within the time specified in this section, the Secretary shall prepare a proposed roll for the tribe, which shall be published in the Federal Register. Any person claiming membership rights in the tribe or an interest in its assets, or a representative of the Secretary on behalf of any such person, may, within ninety days from the date of publication of the proposed roll, file an appeal with the Secretary contesting the inclusion or omission of the name of any person on or from such roll. The Secretary shall review such appeals and his decisions thereon shall be final and conclusive. After disposition of all such appeals, the roll of the tribe shall be published in the Federal Register, and such roll shall be final for the purposes of this Act.
Sec. 4. Upon publication in the Federal Register of the final roll as provided in section 3 of this Act, the rights or beneficial interests in tribal property of each person whose name appears on the roll shall constitute personal property which may be inherited or bequeathed, but shall not otherwise be subject to alienation or encumbrance before the transfer of title to such tribal property as provided in section 6 of this Act without the approval of the Secretary. Any contract made in violation of this section shall be null and void.
Sec. 5. (a) The Secretary is authorized and directed to select and retain by contract, at the earliest practicable time after the enactment of this Act and after consultation with the tribe at a general meeting called for that purpose, the services of qualified management specialists who shall—
(1) cause an appraisal to be made, within not more than twelve months after their employment, or as soon thereafter as practicable, of all tribal property showing its fair market value by practicable lagging or other appropriate economic units;
(2) give each adult member of the tribe, immediately after the appraisal of the tribal property, an opportunity to elect for himself, and, in the case of a head of a family, for the members of the family who are minors, to withdraw from the tribe and have his interest in tribal property converted into money and paid to him, or to remain in the tribe and participate m the tribal management plan to be prepared pursuant to paragraph (5) of this subsection;
(3) determine and select the portion of the tribal property which if sold at the appraised value would provide sufficient funds to pay the members who elect to have their interests converted into money, arrange for the sale of such property, and distribute the proceeds of sale among the members entitled thereto: Provided, That whenever funds have accumulated in the amount of $200,000 or more, such funds shall be distributed pro rata to the members who elected to take distribution of their individual shares, and thereafter similar pro rata distribution shall be made whenever funds have accumulated in the amount of $200,000 or more until all of the property set aside for sale shall have been sold and the proceeds distributed: Provided further, That any such member shall have the right to purchase any part of such property for not less than the highest offer received by competitive bid, and to apply toward the purchase price all or any part of the sum due him from the conversion of his interest in tribal property: Provided further, That when determining and selecting the portion of the tribal property to be sold, due consideration shall be given to the use of such property for grazing purposes by the members of both groups of the tribe;
(4) cause such studies and reports to be made as may be deemed necessary or desirable by the tribe or by the Secretary in connection with the termination of Federal supervision as provided for in this Act; and
(5) cause a plan to be prepared in form and content satisfactory to the tribe and to the Secretary for the management of tribal property through a trustee, corporation, or other legal entity.
(b) Such amounts of Klamath tribal funds as may be required for the purposes of this section shall be available for expenditure by the Secretary: Provided, That the expenses incident to the sale of property and the distribution of proceeds of sale pursuant to paragraph (3) of this subsection shall be charged exclusively to the interests of the members who withdraw from the tribe, and the expenses incurred under paragraphs (4) and (5) of this subsection shall be charged exclusively to the interests of the members who remain in the tribe, and all other expenses under this section shall be charged to the interests of both groups of members.
Sec. 6. (a) The Secretary is authorized and directed to execute any conveyancing instrument that is necessary or appropriate to convey title to tribal property to be sold in accordance with the provisions of paragraph (3) of subsection (a) of section 5 of this Act, and to transfer title to all other tribal property to a trustee, corporation, or other legal entity m accordance with the plan prepared pursuant to paragraph (5) of subsection (a) of section 5 of this Act.
(b) It is the intention of the Congress that all of the actions required by sections 5 and 6 of this Act shall be completed at the earliest practicable time and in no event later than four years from the date of this Act.
(c) Members of the tribe who receive the money value of their interests in tribal property shall thereupon cease to be members of the tribe: Provided, That nothing shall prevent them from sharing in the proceeds of tribal claims against the United States.
Sec. 7. The Secretary is authorized and directed, as soon as practicable after the passage of this Act, to pay from such funds as are deposited to the credit of the tribe in the Treasury of the United States, $250 to each member of the tribe on the rolls of the tribe on the date of this Act. Any other person whose application for enrollment on the rolls of the tribe is subsequently approved, pursuant to the terms of section 3 hereof, shall, after enrollment, be paid a like sum of $250: Provided, That such payments shall be made first from the capital reserve fimd created by the Act of August 28, 1937 (25 U.S.C., Sec. 530).
Sec. 8. (a) The Secretary is authorized and directed to transfer within four years from the date of this Act to each member of the tribe unrestricted control of funds or other personal property held in trust for such member by the United States.
(b) All restrictions on the sale or encumbrance of trust or restricted land owned by members of the tribe (including allottees, heirs, and devisees, either adult or minor) are hereby removed four years after the date of this Act, and the patents or deeds under which titles are then held shall pass the titles in fee simple, subject to any valid encumbrances: Provided, That the provisions of this subsection shall not apply to subsurface rights in such lands, and the Secretary is directed to transfer such subsurface rights to one or more trustees designated by him for management for a period not less than ten years. The titles to all interests in trust or restricted land acquired by members of the tribe by devise or inheritance four years or more after the date of this Act shall vest in such members in fee simple, subject to any valid encumbrance.
(c) Prior to the time provided in subsection (b) of this section for the removal of restrictions on land owned by more than one member of a tribe, the Secretary may—
(1) upon request of any of the owners, partition the land and issue to each owner a patent or deed for his individual share that shall become unrestricted four years from the date of this Act;
(2) upon request of any of the owners, and a finding by the Secretary that partition of all or any part of the land is not practicable, cause all or any part of the land to be sold at not less than the appraised value thereof and distribute the proceeds of sale to the owners: Provided, That any one or more of the owners may elect before a sale to purchase the other interests in the land at not less than the appraised value thereof, and the purchaser shall receive an unrestricted patent or deed to the land; and
(3) if the whereabouts of none of the owners can be ascertained, cause such lands to be sold and deposit the proceeds of sale in the Treasury of the United States for safekeeping.
(d) The Secretary is hereby authorized to approve—
(1) the exchange of trust or restricted land between the tribe and any of its members;
(2) the sale by the tribe of tribal property to individual members of the tribe; and
(3) the exchange of tribal property for real property m fee status. Title to all real property included in any sale or exchange as provided m this subsection shall be conveyed in fee simple.
Sec. 9. (a) The Act of June 25, 1910 (36 Stat. 855), the Act of February 14, 1913 (37 Stat. 678), and other Acts amendatory thereto shall not apply to the probate of the trust and restricted property of the members of the tribe who die six months or more after the date of this Act.
(b) The laws of the several States, Territories, possessions, and the District of Columbia with respect to the probate of wills, the determination of heirs, and the administration of decedents' estates shall apply to the individual property of members of the tribe who die six months or more after the date of this Act.
(c)_ Section 5 of the Act of June 1, 1938 (52 Stat. 605), is hereby repealed.
Sec. 10. The Secretary is authorized, in his discretion, to transfer to the tribe or any member or group of members thereof any federally owned property acquired, withdrawn, or used for the administration of the affairs of the tribe which he deems necessary for Indian use, or to transfer to a public or nonprofit body any such property which he deems necessary for public use and from which members of the tribe will derive benefit.
Sec. 11. No property distributed under the provisions of this Act shall at the time of distribution be subject to Federal or State income tax. Following any distribution of property made under the provisions of this Act, such property and any income derived therefrom by the individual, corporation, or other legal entity shan be subject to the same taxes, State and Federal, as in the case of non-Indians: Provided, That, for the purpose of capital gains or losses the base value of the property shall be the value of the property when distributed to the individual, corporation or other legal entity.
Sec. 12. Sections 2, 3,4, 5, and 6 of the Act of August 28,1937 (50 Stat. 872, 873), and section 2(a) of the Act of August 7,1939 (53 Stat. 1253), are repealed effective on the date of the transfer of title to tribal property to a trustee, corporation, or other legal entity pursuant to section 6 of this Act. All loans made from the reimbursable loan fund established by section 2 of the Act of August 28,1937 (50 Stat. 872), and all other loans made from Klamath tribal funds, including loans of livestock made by the tribe repayable in kind, shall be transferred to the tribe for collection in accordance with the terms thereof.
Sec. 13. (a) That part of section 5 of the Act of August 13, 1914 (35 Stat. 687; 43 U.S.C. 499), which relates to the transfer of the care, operation, and maintenance of reclamation works to water users associations or irrigation districts shall be applicable to the irrigation works on the Klamath [Reservation.
(b) Effective on the first day of the calendar year beginning after the date of the proclamation provided for in section 18 of this Act, the deferment of the assessment and collection of construction costs provided for in the first proviso of the Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a), shall terminate with respect to any lands within irrigation projects on the Klamath Reservation. The Secretary shall cause the first lien against such lands created by the Act of March 7,1928 (45 Stat. 200,210), to be filed of record in the appropriate county office.
(c) There is hereby authorized to be appropriated out of any funds in the Treasury not otherwise appropriated the sum of $89,212 for payment to the Klamath Tribe with interest at 4 per centum annually as reimbursement for tribal funds used for irrigation construction operation and maintenance benefiting nontribal lands on the Klamath Reservation, such interest being computed from the dates of disbursement of such funds from the United States Treasury. _
_ (d) The Secretary is authorized to adjust, eliminate, or cancel all or any part of reimbursable irrigation operation and maintenance costs and reimbursable irrigation construction costs chargeable against Indian owned lands that are subject to the provisions of this Act, and all or any part of assessments heretofore or hereafter imposed on account of such costs, when he determines that the collection thereof would be inequitable or would result in undue hardship on the Indian owner of the land, or that the administrative costs of collection would probably equal or exceed the amount collected.
(e) Nothing contained in any other section of this Act shall affect in any way the laws applicable to irrigation projects on the Klamath Reservation.
Sec. 14. (a) Nothing in this Act shall abrogate any water rights of the tribe and its members, and the laws of the State of Oregon with respect to the abandonment of water rights by nonuse shall not apply to the tribe .and its members until fifteen years after the date of the proclamation issued pursuant to section 18 of this Act.
(b) Nothing in tins Act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under Federal treaty.
Sec. 15. Prior to the transfer of title to, or the removal of restrictions from, property in accordance with the provisions of this Act, the Secretary shall protect the rights of members of the tribe who are minors, non compos mentis, or in the opinion of the Secretary in need of assistance in conducting their affairs, by causing the appointment of guardians for such members in courts of competent jurisdiction, or by such other means as he may deem adequate.
Sec. 16. Pending the completion of the property dispositions provided for in this Act, the funds now on deposit, or hereafter deposited, in the United States Treasury to the credit of the tribe shall be available for advance to the tribe, or for expenditure, for such purposes as may be designated by the governing body of the tribe and approved by the Secretary.
Sec. 17. The Secretary shall have authority to execute such patents, deeds, assignments, releases, certificates, contracts, and other instruments as may be necessary or appropriate to carry out the provisions of this Act, or to establish a marketable and recordable title to any property disposed of pursuant to this Act.
Sec. 18. (a) Upon removal of Federal restrictions on the property of the tribe and individual members thereof, the Secretary shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to the affairs of the tribe and its members has terminated. Thereafter individual members of the tribe shall not be entitled to any _ of the services performed by the United States for Indians because of their status as Indians and, except as otherwise provided in this Act, all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.
(b) Nothing in this Act shall affect the status of the members of the tribe as citizens of the United States.
Sec. 19. Effective on the date of the proclamation provided for in section 18 of this Act, all powers of the Secretary or other officer of the United States to take, review, or approve any action under the constitution and bylaws of the tribe are hereby terminated. Any powers conferred upon the tribe by such constitution which are inconsistent with the provisions of this Act are hereby terminated. Such termination shall not affect the power of the tribe to take any action under its constitution and bylaws that is consistent with this Act without the participation of the Secretary or other officer of the United States.
Sec. 20. The Secretary is authorized to set off against any indebtedness payable to the tribe or to the United States by an individual member of the tribe or payable to the United States by the tribe, any funds payable to such individual or tribe under this Act and to deposit the amounts set off to the credit of the tribe or the United States as the case may be.
Sec. 21. Nothing contained in this Act shall deprive the tribe or its constituent parts of any right, privilege, or benefit granted by the Act of August 18, 1946 (60 Stat. 1049).
Sec. 22. Nothing in this Act shall abrogate any valid lease, permit, license, right-of-way, lien, or other contract heretofore approved. Whenever any such instrument places in or reserves to the Secretary any powers, duties, or other functions with respect to the property subject thereto, the Secretary may transfer such functions, in whole or in part, to any Federal agency with the consent of such agency and may transfer such functions, in whole or in part to a State agency with the consent of such agency and the other party or parties to such instrument.
Sec. 23. The Secretary is authorized to issue rules or regulations necessary to effectuate the purposes of this Act, and may in his discretion provide for tribal referenda on matters pertaining to management or disposition of tribal assets.
Sec. 24. All Acts or parts of Acts inconsistent with this Act are hereby repealed insofar as they affect the tribe or its members. Effective on the first day of the fiscal year beginning after the date of the proclamation provided for in section 18 of this Act, section 2 of the Act of August 19, 1949 (63 Stat. 621, ch. 468) shall become inapplicable to the unrecouped balance of funds ex pended in cooperation with the school board of Klamath County, Oregon, pursuant to said Act.
Sec. 25. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.
Seo. 26. Prior to the issuance of a proclamation in accordance with the provisions of section 18 of this Act, the Secretary is authorized to undertake, within the limits of available appropriations, a special program of education and training designed to help the members of the tribe to earn a livelihood, to conduct their own affairs, and to assume their responsibilities as citizens without special services because of their status as Indians. Such program may include language training, orientation in non-Indian community customs and living standards, vocational training and related subjects, transportation to the place of training or instruction, and subsistence during the course of training or instruction. For the purposes. of such program the Secretary is authorized to enter into contracts or agreements with any Federal, State, or local governmental agency, corporation, association, or person. Nothing in this section shall preclude any Federal agency from undertaking any other program for the education and training of Indians with funds appropriated to it.
Approved August 18,1954.
7. As required by § 3 of said Act of August 13,1954, ch. 732, § 3, 68 Stat. 718, the tribal roll was closed effective midnight, August 13, 1954, and the final roll was published in the Federal Register on November 21, 1957. 22 Fed. Reg. 9303, et seg. (1957).
8. Pursuant to § 5(a) of the Act of August 13, 1954, ch. 732 § 5(a), the Secretary of Interior, in May 1955, entered into a contract with three management specialists. They in turn engaged the services of the Stanford Research Institute to develop guidelines for selecting economic units, determine equitable ways of apportioning tribal assets among tribal members, assist in formulating a plan to stimulate the tribal economy, and consider appropriate methods for managing the residual tribal assets.
9. In a preliminary report submitted to the management specialists in April 1956, the Stanford Research Institute made the following observations:
It also appears that fully 50 percent of the Tribal members — and possibly a considerably larger number, up to 70 percent — may elect to withdraw and take their pro rata shares in cash.
It is apparent that a large proportion of the Reservation timberlands will necessarily become the source of funds to pay withdrawing members who desire cash for their pro rata shares of the Tribal assets. This fact has very serious implications, as it could mean the liquidation within a very few years of a substantial portion of one of the finest and most extensive ponderosa pine forests in the nation. Such liquidation, particularly as it would involve forced sale within the short time remaining between the appraisal completion date and April 18, 1958, is not in the best interests of the withdrawing members, the remaining members, the regional economy, or the nation as a whole.
By contrast, at the time the Act of August 13, 1954, was enacted, it had been assumed that only a few members of the tribe would elect to withdraw.
10. In May 1956, the management specialists submitted a report to the Secretary of Interior in which they listed the following conclusions and recommendations:
1. Section 5 of Public Law 587 [the Act of August 13, 1954] is a radical departure from any method previously considered for converting tribal assets into cash. It became a part of the law as a last-minute amendment during the closing days of the 83rd Congress. Neither County nor State officials had an opportunity to examine the final provisions of Section 5 and to comment thereon, prior to the passage of the Act.
2. Section 5 of the Law provides for the forced sales of tribal resources. Present estimates indicate that the provisions of this section will require the sale of approximately 2,660 million board feet of sawtimber during a period of less than one year. These sales, taking place hi an economic area in which the present sawmill production is now approximately 300 million board feet per year, will undoubtedly glut the local market, bringing greatly reduced stumpage prices. These reduced prices will apply not only to timber sold for those tribal members electing to withdraw from the tribe, but also to timber sold by members electing to remain in the tribe to participate in a management program. The same reductions of stumpage prices would likewise extend to both Federal and privately-owned timber sold from other forest properties in the economic area.
3. Only large operators and governmental agencies can afford to practice sustained yield management in relatively slow growing timber such as found on the Klamath Indian Eeservation. Because of the tremendous investment required to purchase a tract sufficiently large to practice sustained yield management, few purchasers of economic timber units could afford to invest in such a venture. Most purchasers would be forced to liquidate their investment in timber at the earliest possible time. This cut-out-and-get-out policy would result in serious injury to the economy of the Klamath Basin.
4. Since the forest laws of the State of Oregon require only that a few small seed trees per acre be left following cutting, the multiple-use benefits of the Klamath Eeservation forest would be jeopardized if these lands were to be sold in accordance with Section 5 of Public Law 587. The watershed values of the Klamath Eeservation forest alone should warrant measures being taken to prevent this forest from being cut indiscriminately.
5. The Klamath Indians do not have an adequate management background to wisely manage their own resources. "On the job" training of a board of directors has no place in the management of a multi-million dollar corporation. To manage the organization under a trustee is no more than shifting the present trust responsibility from the Federal Government to some other entity.
6. The Federal Government's present trust responsibility includes the responsibility for providing an orderly transition from the present management to the management which will become effective after the Federal trust responsibility has been terminated. To allow this transition to proceed in a manner that would prove detrimental to the tribe as a whole might result in claims being brought against the government for losses sustained by the members of the Klamath Tribe.
With the foregoing conclusions in mind, the Klamath Management Specialists have considered many methods for terminating the Federal government's present trust responsibility for the management of the Klamath Tribal property. In addition to the preliminary consideration that the provisions of the Law should be carried out without amending Section 5, many proposals for basic amendments to this section have been considered. After studying the basic qualities of each proposal the Management Specialists have concluded that only one method for terminating the Federal government's present trust responsibility will protect the interests of both the members of the Tribe and the economy of the community in which they live. This method is the purchase of the Klamath tribal property by the Federal Government.
Accordingly, under provisions of Section 19 of their contract with the Secretary of the Interior, the Klamath Management Specialists hereby recommend that the Congress of the United States amend Section 5 of Public Law 587 to provide for the purchase of the Klamath Tribal resources by the Federal government. This proposal for purchase by the Federal government is discussed in detail in Section V of this report. Should lack of time prevent Congress from making the recommended amendment during the present session of Congress, it is recommended that a stopgap amendment of Section 5 be provided. This stopgap amendment should eliminate all of the present portions of Section 5 following the appraisal of the tribal property Sec. 5(a) (1), and substitute therefor provisions that will authorize and require the Management Specialists to prepare and submit to the Congress, through the Secretary of the Interior, detailed plans for effecting the orderly termination of the Federal government's present trust responsibilities over the tribal resources.
In their report, the management specialists made the following additional observations:
Several of the indirect benefits that are realized from the sustained yield management of a forest property are also jeopardized by the provisions of Public Law 587. The influence Avhich the Klamath Reservation forest has in stabilizing the flow of streams throughout the year should, in itself, warrant measures being taken to prevent this timber from being cut to the minimum specifications of the state law. Approximately 303,000 acres of irrigated farm lands are dependent on streams that head on the forest slopes of the Klamath Basin. Further, the maximum development of water power on the Klamath Fiver cannot be realized without the protection of its headwaters. A large part of the extensive water resource of the Klamath Basin originates in the many large springs found on reservation lands. To allow the promiscuous cutting of the Klamath Reservation forest is to jeopardize the farm production and the water power developments dependent on the watershed protection provided by these forests.
Other serious problems in forest management would also be generated. The accumulations of logging slash that would result from the cutting of large volumes of timber during a relatively short period of time would increase the hazards from fires and from insect attacks. These increased hazards would be compounded by the generally poorer slash disposal and snag falling required by operators under state forest laws than have been required under the timber cutting contracts administered by the Bureau of Indian Affairs in the past. These widespread areas of increased hazards, coupled with the greatly increased and uncontrolled logging activities, could bring a serious increase in the annual loss from forest fires.
The satisfactory establishment of reproduction after cutting is another forest management problem which may become much more serious if the Klamath Reservation forests are cut to the minimum requirements of the Oregon State laws. Mr. Harold Weaver, Area Forester of the Bureau of Indian Affairs, has stated the following concerning this problem:
"We have always considered Klamath a problem area with respect to establishment of reproduction because of the critical soil and moisture factors and particularly because of the various shrub species that compete seriously with ponderosa pine reproduction. When the forest is opened through selective logging various shrubs such as bitterbrush, manza-nita and ceanothus are most apt to take over all available growing space in the absence of good pine seed years. In such event establishment of reproduction may require a very long period of years. Despite tbe leaving of an excellent reserve stand, a recent cruise of the Klamath disclosed that approximately 20 percent of the cut over lands are not satisfactorily stocked with reproduction. On some of these lands the cutting occurred as long as 30 or more years ago. With the harvesting of the reserved trees under the minimum provisions of the Oregon law nothing will be left on such areas but a few seed trees per acre and a nearly solid stand of brush. In the circumstances the leaving of a few poles or seed trees as required by OES 527.080 will not assure regeneration of the forest."
11. On January 7, 1957, the Assistant Secretary of Interior, Hatfield Chilson, submitted to Congress a proposed bill to amend the Act of August 13, 1954. In his letter of transmittal, the Assistant Secretary stated:
Enclosed herewith is a draft of a proposed bill to amend the act terminating Federal supervision over the Klamath Indian Tribe.
We recommend that the proposed bill be referred to the appropriate committee for consideration, and we recommend that it be enacted.
The purpose of the bill is to do four things: (1) Delay any sales of tribal timberlands until Congress has had a further opportunity to determine whether all or any part of the lands should be acquired by the Federal or State Government for public conservation purposes, or whether other alternative steps may be needed to protect the economy and to preserve good conservation practices in the region; (2) prevent forced sales of Klamath tribal timberlands in quantities and at times that will unreasonably depress the market; (3) provide for Federal payment of the costs of the termination program; and (4) make several technical amendments to the law, the need for which has been disclosed by our experience during the past 2y2 years.
In order to accomplish the first purpose, the bill provides that no sales of tribal property shall be made before the end of the 1st session of the 85th Congress, and if during that time Congress authorizes public acquisition of the timberlands by a State or Federal agency the sale to the public agency must be on the terms specified by Congress rather than under the procedure specified in the existing law.
The problem is bow to mitigate tbe effect on. tbe economy of tbe area of a partial or complete liquidation of tbe Klamath Forest. When the bill that became tbe Klamath Termination Act was presented to Congress by executive communication on January 4,1954, we pointed out that there is a conflict between the interest of the Indians in obtaining the maximum value from the forest as a private capital asset, and the interest of the United States in maintaining the forest under sustained-yield management for the benefit of all of the people in the region. That is, the Indians might get a better return on their investment if the forest were liquidated and the proceeds invested in some other form, but the liquidation of the forest would injure the general public in the area. Inasmuch as the United States may not require private property to be devoted to a public purpose without adequate compensation, we pointed out that the right of the Indians to liquidate a part of the forest is a private property right that should not be denied them after the Federal trust over their property is terminated. When the bill was under consideration by Congress, it was well understood that the only practical way to insure continued management of the forest on sustained-yield principles, in the interest of the general public as distinguished from the interest of the Indians as private citizens, was some form of public acquisition if the Indians concluded that it was to their best interest to liquidate all or a part of the forest.
Subsequent studies by the management specialists who were retained in accordance with the provisions of the act indicate clearly why some of the Indians believe that it would be in their best interest, economically, to liquidate their shares of the tribal estate by withdrawing from the tribe and by investing the proceeds in some other form. Although the appraisal of the tribal forest has not yet been completed, the management specialists have estimated that on the basis of the probable retail appraised value the Indians can expect to get less than 2-percent return on their capital if the forest remains in sustained-yield management. They could get a considerably higher return if their capital were invested conservatively in Government or corporate bonds, or in the so-called blue-chip common stocks.
The conservation problem was raised when Congress considered the original bill in 1954, and it has been under constant consideration since then. Whether the forest should be maintained intact as a conservation measure for the public good is primarily a matter for Congress to determine. If the answer is in the affirmative, it is clear that the Indians as private property owners should not be forced by law to maintain the forest for the public good. Inasmuch as it is the public interest that is involved, some form of public ownership seems to be the only reasonable approach. We therefore recommend that the sale of any part of the forest should be stopped for a reasonable time in order that Congress may consider further whether public acquisition by the Federal or State Government will be authorized. We believe that a delay until the end of the 1st session of the 85th Congress is a reasonable time, in view of the 2% years that have already elapsed. Some definite time limitation for the delay period is necessary in order to prevent the Indians as private property owners from being deprived of ordinary control and use of their property solely because of the public conservation interest.
In order to accomplish the second purpose, the bill provides that if public acquisition of the forest is not authorized and sales of tribal property are necessary in order to pay the members who withdraw from the tribe, the sales shall be arranged at times and in quantities that will not unreasonably depress the market. The bill also extends the time for completing such sales from 4 to 7 years after the date of the original act, which was August 13, 1954, and provides that if it develops that sales within such time limitation will bring inadequate prices in the light of appraisals, a report of the facts shall be submitted to Congress for such corrective action as Congress thinks advisable. Assuming that no sales are commenced before the summer of 1957, which would be the effect of the first amendment discussed above, this means that any sales of tribal property that are necessary will be made during the 4-year period between the summer of 1957 and August 13, 1961.
In order to accomplish the third purpose, the bill provides for reimbursing the tribe, up to a maximum of $1,100,000, for expenses that are incurred in carrying out the termination program and that are approved by the Secretary. Congress authorized similar action in connection with the Menominee termination program in Wisconsin, and there is no reason for treating the Klamath Indians differently.
In order to accomplish the fourth purpose, the bill makes a number of changes in the existing law. Although tbe changes are primarily technical in nature, they are of considerable practical importance.
The first relates to the procedure for permitting individual Indians to withdraw from the tribe. The present law permits the withdrawal of minors or incompetents only when they are a part of the family of an adult member of the tribe who elects to withdraw. This means that no opportunity is provided for withdrawing a minor when his parents are divorced and he is in the custody of a non-Klamath parent, or when the minor is in the legal custody of a Klamath parent but lives with his non-Klamath parent, or when the minor is an orphan and lives with a non-Klamath foster parent or in a State institution, or when the minor has been abandoned by his Klamath parents and lives with a relative or friend who has no legal responsibility for his custody. There are many other variations of the problem. There is also no provision for withdrawing from the tribe the estate of a deceased member. We believe that some provisions should be made for considering the interests of such persons and for withdrawing them from the tribe if they would be benefited. As it is difficult to spell out in detail the many varying circumstances when the choice should be placed in one or the other of the natural parents, in an adopted parent, in a foster parent, in a guardian, in a relative, in a State welfare official, or in some other person, the bill permits the Secretary to designate the person who is best able to represent the interests of the member involved and gives the person designated the right to withdraw such member from the tribe if withdrawal would be for his benefit.
The designation of a person to determine the withdrawal of a minor or incompetent will not give that person control over the property of the minor or incompetent. Section 15 of the present law requires the Secretary to protect the rights of such persons before removing restrictions on the property by arranging for •the judicial appointment of a guardian or by some other appropriate means which might include, for example, the establishment of a private trust. A private trust could be used if the fees and costs of guardianship proceedings are excessive.
The second technical change relates to the time for permitting the individual Indian to exercise an election to withdraw from the tribe. The present act requires that the opportunity to elect be given to each adult member of the tribe immediately after the appraisal of the property lias been completed. We believe that the appraisal will not be completed until the report of the contract appraisers has been adopted by the management specialists, and until it has been submitted to and approved by the Secretary in accordance with the contract between the management specialists and the Secretary. Such approval was required by the Secretary pursuant to his rulemaking power under the act. The validity of this interpretation has been questioned, however, and in order to remove any doubt about the matter the bill specifically provides that the opportunity to elect to withdraw shall be given to the Indians after the appraisal is approved by the Secretary.
The contention has been advanced that the election to withdraw will create a vested right to have a proportionate share of the tribal property sold on the open market, that the vesting of such right might prevent the enactment of further legislation to preserve the forest, and that the election to withdraw should therefore be postponed until after Congress has decided the fate of the forest. We strongly oppose any such postponement. The right to elect to withdraw is as much a vested right at the present time as would be the right to withdraw after the election is made. Moreover, Congress needs to know how many of the tribal members want to withdraw before it can determine how much, if any, of the forest should be acquired for public conservation purposes; and the amendment recommended to carry out the first purpose of the bill, discussed above, will clearly permit such acquisition by a public agency according to a procedure or price fixed by Congress rather than under the procedure specified in existing law, if Congress wishes to legislate to that effect. There is therefore no need to postpone the determination of the number of Indians who want to withdraw in order to permit Congress to protect the forest, and there are cogent reasons for not delaying.
The only other reason heretofore offered for delay is to allow the tribe to control the rate of withdrawals and to require the withdrawing members to take less than their proportionate shares of the tribal assets. The right to withdraw and be paid a proportionate share of the tribal assets is an essential part of the present law, and it should not be changed.
The third change relates to the Indian preference to purchase any tribal land that is offered for sale. The change gives the preference right to the tribe and to the members who stay in the tribe, as well as to the members who withdrew from the tribe. The preference is presently restricted to the latter group. The change also makes it clear that the preference may be exercised by an Indian only for his own account and not as an agent for others, and that the preference must be exercised only for entire parcels as they are offered for sale.
The fourth technical change changes the definition of "adult" to conform to the law of the place where the person resides.
The fifth technical change permits the Secretary to perform, on request prior to termination, for the owner of the entire interest in a tract of allotted land the same services with respect to sale that he is authorized to perform for the owners of fractionated interests in an allotment.
The sixth technical change relates to the termination of the trust or restricted status of interests in allotted land on the Klamath ^Reservation that are owned by non-Klamath Indians. Those are interests acquired by inheritance. After the termination program for the Klamath Indians has been completed, there will be no practical administrative procedure for administering undivided interests in Klamath allotments that may have been inherited by non-Klamath Indians.
The seventh technical change makes it clear that the provisions for terminating restrictions on individually owned Indian land apply both to allotted and to purchased land.
An eighth technical amendment makes it clear that tribal timber sales may continue to be made as authorized by existing law until Federal control over the timber has been terminated. We believe that such authority now exists, but the authority has been questioned by some members of the tribe, and the question can most easily be resolved by the inclusion in the bill of a clear statement to that effect. In view of the proposed extension of the terminal program until 1961, timber sales during the intervening period are important to the members of the tribe because the customary per capita payments are made from timber sales income.
The management specialists who were retained in accordance with the provisions of the 1954 act have advised us that they concur in the recommendation that the proposed legislation be enacted.
The Bureau of the Budget has advised us that there is no objection to the submission of this proposed legislation to the Congress.
12. On August 14, 1957, Congress enacted P.L. 85-132, Act of August 14,1957,71 Stat. 347, which reads as follows:
AN ACT
To authorize the United States to defray the cost of assisting the Klamath'Tribe of Indians to prepare for termination of Federal supervision, to defer 'sales of tribal property, and for other purposes.
Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the Act entitled "An Act to provide for the termination of Federal supervision over the property of the Klamath Tribe of Indians located in the State of Oregon and the individual members thereof, and for other purposes", approved August 13, 1954 (68 Stat. ,718), is amended by adding at the end thereof the following new section:
"Sec. 27. Notwithstanding any other provisions of this Act, no sales of tribal property shall be made pursuant to paragraph (3) of subsection (a) of section 5, or section 6 of this Act prior to the adjournment of the second session of the Eighty-fifth Congress."
(b) Subsection (b) of section 5 of such Act is amended to read as follows:
" (b) Such amounts of Klamath tribal funds as may be required for the purposes of this section shall be available for expenditure by the Secretary. In order to reimburse the tribe, in part, for expenditure of such tribal funds as the Secretary deems necessary for the purposes of carrying out the requirements of this section, there is hereby authorized to be appropriated out of any money in the Treasury not otherwise appropriated, an amount equal to one-half of such expenditures from tribal funds, or the sum of $550,000, whichever is the lesser amount.".
(c) Subsection (b) of section 6 of such Act is amended by striking out "four years" and inserting in lieu thereof "six years".
(d) Subsection 5 (a), paragraph (2), of the Act is amended to read as follows:
" (2) immediately after the appraisal of the tribal property and approval of the appraisal by the Sec retary, give to each member whose name appears on the final roll of the tribe an opportunity to elect to withdraw from the tribe and have his interest in tribal property converted into money and paid to him, or to remain in the tribe and participate in the tribal management plan to be prepared pursuant to paragraph (5) of this subsection; in the case of members who are minors, persons declared incompetent by judicial proceedings, or deceased, the opportunity to make such election on their behalf shall be given to the person designated by the Secretary as the person best able to represent the interests of such member: Provided, however, That any member, or any heir or any devisee of any deceased member, for whom the Secretary has so designated a representative may (on his own behalf, through his natural guardian, or next friend) within one hundred and twenty days after receipt of written notice of such secretarial designation, contest the secretarial designation in any naturalization court for the area in which such member resides, by filing of a petition therein requesting designation of a named person other than the secretarial designee, and the burden shall thereupon devolve upon the Secretary to show cause why the member-designated representative should not represent the interests of such member, and the decision of such court shall be final and conclusive;".
(e) Subsection 5 (a), paragraph (3), of the Act is amended by deleting the second proviso and by inserting in lieu thereof the following: 'Provided further, That any person whose name appears on the final roll of the tribe, or a guardian on behalf of any such person who is a minor or an incompetent, shall have the right to purchase, for his or its own account but not as an agent for others, any of such property in lots as offered for sale, for not less than the highest offer received by competitive bid; any individual Indian purchaser may apply toward the purchase price all or any part of the sum due him from the conversion of his interest in tribal property; and if more than one right is exercised to purchase the same property pursuant to this proviso the property shall be sold to one of such persons on the basis of competitive bids
(f) Subsection 2 (e) of the Act is amended to read as follows: "'Adult' means a person who is an adult according to the law of the place of his residence."
(g) Subsection 5 (a), paragraph 5, of the Act is amended by deleting "tribe" and by inserting in lieu thereof "members who elect to remain in the tnbe".
(h) Subsection 8 (c) of the Act is amended by inserting after "on land owned by" the words "one or by".
(i) Subsection 8 (b) of the Act is amended by deleting the language that precedes the proviso and by inserting in lieu thereof "All restrictions on the sale or encumbrance of trust or restricted interests in land, wherever located, owned by members of the tribe (including allottees, purchasers, heirs, and devisees, either adult or minor), and on trust or restricted interests in land within the Klamath Indian Keservation, regardless of ownership, are hereby removed four years after the date of this Act, and the patents or deeds under which titles are then held shall pass the titles in fee simple, subject to any valid encumbrances:".
(j) Section 15 of the Act is amended by changing the period at the end thereof to a comma and by adding "without application from the member, including but not limited to the creation of a trust of such member's property with a trustee selected by the Secretary, or the purchase by the Secretary of an annuity for such member: Provided, however, That no member shall be declared to be in need or assistance in conducting his affairs unless the Secretary determines that such member does not have sufficient ability, knowledge, experience, and judgment to enable him to manage his business affairsj including the administration, use, investment, and disposition of any property turned over to such member and the income and proceeds therefrom, with such reasonable degree of prudence and wisdom as will be apt to prevent him from losing such property or the benefits thereof: Provided further, That any member determined by the Secretary to be in need of assistance in conducting his affairs may, within one hundred and twenty days after receipt of written notice of such secretarial determination, contest the secretarial determination in any naturalization court for the area in which said member resides by filing therein a petition having that purpose; the burden shall thereupon devolve upon the Secretary to show cause why such member should not conduct his own affairs, and the decision of suck court shall be final and conclusive with respect to the affected member's conduct of his affairs.
Sec. 2. Nothing in the Act of August 13, 1954 (68 Stat. 718), shall affect the authority to make timber sales otherwise authorized by law prior to the termination of Federal control over such timber.
Approved August 14,1957.
13. (a) Pursuant to § 5(a) (1) of the Act of August 13, 1954, ch. 732, § 5(a) (1), 68 Stat. 718, the management specialists caused an appraisal of the tribal property to be made by Western Timber Services under a contract approved by the Secretary of Interior on February 17,1956. The appraisal report was submitted to the management specialists under the date of October 21, 1957. A supplemental report was submitted on January 31, 1958. The Secretary of Interior accepted the inventory and appraisal of the tribal property on February 28,1958.
(b) The appraisal report listed the following property units:
Type of Unit Humber of Units
Timber _ _ 95
Grazing_ _ 22
Marsh_ _ 2
Farm_ _ 3
Agency Buildings _ 4
Miscellaneous _ 10
Total_136
(c) The "realization value" was defined in the appraisal report as follows :
(3) "Realization Value." "Realization Value" is the estimated amount which may be realized if the economic unit is sold under the terms of Public Law 587, as amended. In estimating realization value, the Appraisers have assumed that the conditions set forth within the paragraphs immediately below will prevail in the sale of the economic unit under the terms of Public Law 587, as amended:
(a) The sales will be made in a period of 21 months commencing September 1,1958.
(b) Economic units having an aggregate appraised value of seventy per cent of the appraised value of the entire property of the Klamath Tribe will be sold.
(c) All sales of timber will be for cash, except that approximately three per cent of the Indians withdrawing will exercise the option to apply their prorata share of the sale proceeds to the purchase of timberlands.
(d) Each Indian will have the option to purchase any economic unit for cash at the highest outside bid.
(e) Each bidder will be required to submit with his bid a cash deposit in the amount of ten per cent of his bid.
(f) Each successful bidder will be required to pay in cash the full amount of his bid, less deposit, within no more than 90 days (or somewhat shorter periods with respect to small economic units) from the date on which he is notified of the acceptance of his bid.
(g) A conveyance will be made to the successful bidder within 30 days of the date on which he pays the full amount of his bid.
(h) The purchaser of the timber will be under no obligation to operate the unit purchased on a sustained-yield basis.
(i) The Secretary of Interior will have the option to reject any bid which is lower than the realization value of the economic unit as estimated in the Appraisal Report.
(j) Bidding will be by oral auction, or by sealed bids, or by both oral auction and sealed bids, according to the method which experience in the conduct of the sales and market conditions indicates will bring the highest bids.
(k) The contents of the Appraisal Report will be available to prospective bidders for examination and study at Klamath Falls, Oregon.
(l) Small economic units may be grouped together and large units broken up into smaller tráete, so that the tracts offered for sale will be of the size or sizes which experience indicates will bring the highest bids.
(m) Any further amendments to Public Law 587, as amended by the 85th Congress, 1st Session, will have no adverse effect on buyer interest.
(n) The sales will be widely publicized, including advertising as follows:
(1) Upon completion of the Appraisal and prior to the advertisement of sales of particular; economic units, there will be published in newspapers of national circulation and in trade publications and circularized among timber operators and interested financial organizations a general description of the nature and scope of the proposed sales.
(2) Prior to the time when sales will be made, there will be advertised for sale, subject to the effect of amendments to Public Law 587 which may be enacted by the 85th Congress, 2d Session, particular economic units. Such advertising will be published in newspapers of national circulation and in trade, publications and circularized among timber operators and interested financial organizations.
(3) During the period when sales will be made, particular economic units will be advertised in the manner set forth in subpara-graph (2) above.
(o) There will be no substantial change in general economic conditions in the United States prior to the end of the sale period.
(d) With respect to those units as to which standing timber constituted the principal element of value, the appraisal report set forth four "values" which were designated as "Appraised Value," "Market Value," "Sustained Yield Value," and "Realization Value." The valuation date for the first three values was February 28, 1957, and for the last value, October 21,1957.
(e) With respect to the remaining units, other than the cemetery units, the appraisal report set out one or more values, which were designated as "Appraised Value," "Market Value," "Sustained Yield Value," "Realization Value," or "Fair Market Value." No value was assigned to tlie cemetery units.
14. Pursuant to § 5(a) (2) of the Act of August 13, 1954, cb.. 732, § 5(a) (2), 68 Stat. 718, the management specialists, under date of March 7,1958, sent all tribal members a notice of the election, an election form, data on the appraisal of tribal assets and on the financial effects of withdrawing from or remaining in the tribe, and a summary of a tentative management plan for those electing to remain in the tribe. The completed election form was to be returned by April 21, 1958. In the election, 1,660 members (77.825 percent of a total of 2,133) elected to withdraw, while the remaining 473 either elected to remain in the tribe, or failed to return their ballots, in which case they were deemed not to have elected to withdraw from the tribe.
15. (a) The selections of property to be sold to pay the withdrawing Indians, the determination of the value of their interests, and of the property to be conveyed to a trustee for the benefit of the remaining Indians, were made as of July 1, 1958. Some adjustments in the selections were made after that date, however, the final adjustment being made on December 14,1959.
(b) The property selected for sale constituted 77.825 percent of the value of the total tribal estate, as determined and selected by the United States. It consisted of about 78 percent of the Klamath Forest, an area known as the "Kla-math Marsh," and certain fringe areas, consisting of farm and grazing land and timberlands not susceptible to sustained yield use.
(c) The remaining property constituted 22.175 percent of the value of the total tribal estate, as determined and selected by the United States after consultation with some of the remaining Indians. This property was included in the tribal management plan, and title thereto was subsequently transferred by the Secretary of Interior to a private trustee.
16. Hearings on additional amendments to the Act of August 13, 1954, supra,, were held by the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs on October 2-4, 1957, and February 3-7, 1958. Following those bearings, tbe Act of August 13, 1954, supra, was in several respects further amended by the Act of August 23,1958,72 Stat. 816:
AN ACT
To amend the Act terminating Federal supervision over the Klamath Indian Tribe by providing in the alternative for private or Federal acquisition of the part of the tribal forest that must be sold, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of August 13,1954 (68 Stat. 718), is amended by adding a new section 28 as follows:
"Sec. 28. Notwithstanding the provisions of sections 5 and 6 of the Act of August 13,1954 (68 Stat. 718), and all Acts amendatory thereof—
" (a) The tribal lands that comprise the Klamath Indian Forest, and the tribal lands that comprise the Klamath Marsh, shall be designated by the Secretary of the Interior and the Secretary of Agriculture, jointly.
"(b) The portion of the Klamath Indian Forest that is selected for sale pursuant to subsection 5 (a) (3) of this Act to pay members who withdraw from the tribe shall be offered for sale by the Secretary of the Interior in appropriate units, on the basis of competitive bids, to any purchaser or purchasers who agree to manage the forest lands as far as practicable according to sustained yield procedures so as to furnish a continuous supply of timber according to plans to be prepared and submitted by them for approval and inclusion in the conveyancing instruments in accordance with specifications and requirements referred to in the invitations for bids: Provided, That no sale shall be for a price that is less than the realization value of the units involved determined as provided in subsection (c) of this section. The terms and conditions of the sales shall be prescribed by the Secretary. The specifications and minimum requirements to be included in the invitations for bids, and the determination of appropriate units for sale, shall be developed and made jointly by the Secretary of the Interior and the Secretary of Agriculture. Such plans when prepared by the purchaser shall include provisions for the conservation of soil and water resources as well as for the management of the timber resources as hereinbefore set forth in this section. Such plans shall be satisfactory to and have the approval of the Secretary of Agriculture as complying with the minimum standards included in said specifications and requirements before the prospective purchaser shall be entitled to have his bid considered by the Secretary of the Interior and the failure on the part of the purchaser to prepare and submit a satisfactory plan to the Secretary of Agriculture shall constitute grounds for rejection of such bid. Such plans shall be incorporated as conditions in the conveyancing instruments executed by the Secretary and shall be binding on the grantee and all successors in interest. The conveyancing instruments shall provide for a forfeiture and a reversion of title to the lands to the United States, not in trust for or subject to Indian use, in the event of a breach of such conditions. The purchase price paid by the grantee shall be deemed to represent the full appraised fair market value of the lands, undiminished by the right of reversion retained by the United States in a nontrust status, and the retention of such right of reversion shall not be the basis for any claim against the United States. The Secretary of Agriculture shall be responsible for enforcing such conditions. Upon any reversion of title pursuant to this subsection, the lands shall become national forest lands subject to the laws that are applicable to lands acquired pursuant to the Act of March 1, 1911 (36 Stat. 961), as amended.
" (c) Within sixty days after this section becomes effective the Secretary of the Interior shall contract by negotiation with three qualified appraisers or three qualified appraisal organizations for a review of the appraisal approved by the Secretary pursuant to subsection 5(a) (2) of this Act, as amended. In such review full consideration shall be given to all reasonably ascertainable elements of land, forest, and mineral values. Not less than thirty days before executing such contracts the Secretary shall notify the chairman of the House Committee on Interior and Insular Affairs and the chairman of the Senate Committee on Interior and Insular Affairs of the names and addresses of the appraisers selected. The cost of the appraisal review shall be paid from tribal funds which are hereby made available for such purpose, subject to full reimbursement by the United States, and the appropriation of funds for that purpose is hereby authorized. Upon the basis of a review of the appraisal heretofore made of the forest units and marsh lands involved and such other materials as may be readily available, including additional market data since the date of the prior appraisal, but without making any new and independent appraisal, each appraiser shall estimate the fair market value of such forest units and marsh lands as if they had been offered for sale on a competitive market without limitation on use during the interval between the adjournment of the Eighty-fifth Congress and the termination date specified in subsection 6(b) of this Act, as amended. This value shall be known as the realization value. If the three appraisers are not able to agree on the realization value of such forest units and marsh lands, then such realization values shall be determined by averaging the values estimated by each appraiser. The Secretary shall report such realization values to the chairman of the House Committee on Interior and Insular Affairs and to the chairman of the Senate Committee on Interior and Insular Affairs not later than January 15,1959. No sale of forest units that comprise the Klamath Indian forest designated pursuant to subsection 28(a) shall be made under the provisions of this Act prior to April 1,1959.
" (d) If all of the forest units offered for sale in accordance with subsection (b) of this section are not sold before April 1,1961, the Secretary of Agriculture shall publish in the Federal Register a proclamation taking title in the name of the United States to as many of the unsold units or parts thereof as have, together with the Klamath Marsh lands acquired pursuant to subsection (f) of the section, an aggregate realization value of not to exceed $90,000,000, which shall be the maximum amount payable for lands acquired by the United States pursuant to this Act. Compensation for the forest lands so taken shall be the realization value of the lands determined as provided in subsection (c) of this section, unless a different amount is provided by law enacted prior to the proclamation of the Secretary of Agriculture. Appropriation of funds for that purpose is hereby authorized. Payment shall be made as soon as possible after the proclamation of the Secretary of Agriculture. Such lands shall become national forest lands subject to the laws that are applicable to lands acquired pursuant to the Act of March 1,1911 (36 Stat. 961), as amended. Any of the forest units that are offered for sale and that are not sold or taken pursuant to subsection (b) or (d) of this section shall be subject to sale without limitation on use in accordance with the provisions of section 5 of this Act.
" (e) If at any time any of the tribal lands that comprise the Klamath Indian Forest and that are retained by the tribe are offered for sale other than to members of the tribe, such lands shall first be offered for sale to the Secretary of Agriculture, who shall be given a period of twelve months after the date of each such offer within which to purchase such lands. No such lands shall be sold at a price below the price at which they have been offered for sale to the Secretary of Agriculture, and if such lands are reoffered for sale they shall first be reof-fered to the Secretary of Agriculture. The Secretary of Agriculture is hereby authorized to purchase such lands subject to such terms and conditions as to the use thereof as he may deem appropriate, and any lands so acquired shall thereupon become national forest lands subject to the laws that are applicable to lands acquired pursuant to the Act of March 1,1911 (36 Stat. 961), as amended.
" (f) The lands that comprise the Klamath Marsh shall be a part of the property selected for sale pursuant to subsection 5(a)(3) of this Act to pay members who withdraw from the tribe. Title to such lands is hereby taken in the name of the United States, effective April 1, 1961. Such lands are designated as the Klamath Forest National Wildlife Kefuge, which shall be administered in accordance with the law applicable to areas acquired pursuant to section 4 of the Act of March 16, 1934 (48 Stat. 451), as amended or supplemented. Compensation for said taking shall be the realization value of the lands determined in accordance with subsection (c) of this section, and shall be paid out of funds in the Treasury of the United States, which are hereby authorized to be appropriated for that purpose.
"(g) Any person whose name appears on the final roll of the tribe, and who has since December 81, 1956, continuously resided on any lands taken by the United States by subsections (d) and (f) of this section, shall be entitled to occupy and use as a homesite for his lifetime a reasonable acreage of such lands, as determined by the Secretary of Agriculture, subject to such regulations as the Secretary of Agriculture may issue to safeguard the administration of the national forest and as the Secretary of the Interior may issue to safeguard the administration of the Klamath Forest National Wildlife Kefuge.
" (h) If title to any of the lands comprising the Klamath Indian Forest is taken by the United States, the administration of any outstanding timber sales contracts thereon entered into by the Secretary of the Interior as trustee for the Klamath Indians shall be administered by the Secretary of Agriculture.
"(i) All sales of tribal lands pursuant to subsection (b) of this section or pursuant to section 5 of this Act on which roads are located shall be made subject to the right of the United States and its assigns to maintain and use such roads."
Sec. 2. Section 4 of the Act of August 13, 1954, is amended by adding thereto a new sentence reading thus: "Property which this section makes subject to inheritance or bequest and which is inherited or bequeathed after August 13, 1954, and prior to the transfer of title to tribal property as provided in section 6 of this Act shall not be subject to State or Federal inheritance, estate, legacy, or succession taxes."
Sec. 3. No funds distributed pursuant to section 5 of the Act of August 13,1954, as amended, to members who withdraw from the tribe shall be paid to any person as compensation for services pertaining to the enactment of said Act or amendments thereto and any person making or receiving such payments shall be guilty of a misdemeanor and shall be imprisoned for not more than six months and fined not more than $500.
Sec. 4. The Secretary of the Interior is directed to terminate the contract between him and the management specialists by giving immediately the sixty-day notice re quired by paragraph 18 of such contract. When the contract is terminated, all of the functions of the management specialists under section 5 of the Act of August 13, 1954, as amended, shall be performed by the Secretary.
Sec. 5. Nothing in this Act shall in any way modify or repeal the provisions of subsection 5(a) of the Act of August 13, 1954 (68 Stat. 718), as amended, providing for and requiring members of the Klamath Tribe to elect to withdraw from or remain in the tribe, following the appraisal of the tribal property.
Sec. 6. The first proviso of subsection 5(a) (3) of the Act of August 13, 1954 (68 Stat. 718), relating to distributions in $200,000 installments, is repealed.
Sec. 7. The second proviso of subsection 5(a) (3) of said Act, as amended, relating to Indian preference rights, is further amended by deleting "any individual Indian purchaser may apply toward the purchase price all or any part of the sum due him from the conversion of his interest in tribal property" and by inserting in lieu thereof "any individual Indian purchaser who has elected to withdraw from the tribe may apply toward the purchase price up to 100 per centum of the amount estimated by the Secretary to be due him from the sale or taking of forest and marsh lands pursuant to subsections 28(b), 28(d), and 28(f) of this Act, and up to 75 per centum of the amount estimated by the Secretary to be due him from the conversion of his interest in other tribal property".
otic. 8. The Act of August 13,1954 (68 Stat. 718), is amended by adding at the end of subsection 5(a) (5) the following sentence: "If no plan that is satisfactory both to the members who elect to remain in the tribe and to the Secretary has been prepared six months before the time limit provided in subsection 6(b) of this Act, as amended, the Secretary shall adopt a plan for managing the tribal property, subject to the provisions of section 15 of this Act, as amended."
Sec. 9. Except as provided below the provisions of the Act of August 13,1954 (68 Stat. 718), as amended, shall not apply to cemeteries within the reservation. The Secretary is hereby authorized and directed to transfer title to such properties to any organization authorized by the tribe and approved by him. In the event such an organization is not formed by the tribe within eighteen months following enactment of this Act, the Secretary is directed to perfect the organization of a nonprofit entity empowered to accept title and ¡maintain said cemeteries, any costs involved to be subject to the provisions of section 5(b) of said Act of August 13, 1954, as'amended.
Seo. 10. Subsection (b) of section 6 of the Act of August 13, 1954 (68 Stat. 718), as amended, is further amended by striking out "six years" and inserting in lieu thereof "seven years".
Seo. 11. Subsection 8(b) of the Act of August 13, 1954 (68 Stat. 718), as amended, is further amended by changing the colon to a period and by deleting the following language:ilProvided, That the provisions of this subsection shall not apply to subsurface rights in such lands, and the Secretary is directed to transfer such subsurface rights to one or more trustees designated by him for management for a period not less than ten years."
Approved August 23, 1958.
17. (a) Pursuant to § 28 (c) of the Act of August 23,1958, 72 Stat. 817, the Secretary of Interior, by contract dated October 22, 1958, engaged three firms to make review appraisals. On December 15, 1958, the three review appraisers met in an effort to agree on values so as to submit one report to the Secretary of Interior, as required by their contract. An agreement could not be reached, and each appraiser submitted separate reports to the Secretary of Interior on December 30 and 31,1958.
(b) The results of the three appraisals are as follows :
Hamm on, Jensen & Wallen_$91,965, 680
Bigley & Feiss_ .82,356,760
Marshall & Stevens_ .95,136, 635
(c) The average of the three review values is the following:
95 Timber Units_,_$89,308,787
2 Marsh Units_ 510,905
Average___$89,819,692
18. (a) Pursuant to § 28 (a) of the Act of August 23,1958, 72 Stat. 816, the tribal lands comprising the Klamath Forest and the Klamath Marsh were jointly designated by the Secretary of Interior and Secretary of Agriculture on December 2 and 12,1958.
(b) Pursuant to § 28 (b) of the Act of August 23, 1958, 72 Stat. 816, the portion of the Klamath Forest set aside to pay tlie withdrawing Indians was divided into 11 sustained yield units susceptible to sustained yield management and the boundaries of each unit were jointly designated by the action of the Assistant Secretary of Interior on March 24, 1959, and of the Assistant Secretary of Agriculture on April 3, 1959.
(c) Pursuant to § 28 (b) of the Act of August 23,1958, 72 Stat. 816, on the dates indicated in the immediately preceding-finding, minimum specifications for the type of covenant a purchaser of a sustained yield unit would be required to execute were adopted by the Assistant Secretary of Interior and by the Assistant Secretary of Agriculture.
19. (a) The 11 sustained yield units were advertised for sale as authorized by § 28(b) of the Act of August 23, 1958, 72 Stat. 816. The dates of advertising and opening of bids were as follows:
Sustained Yield unit Date oí Advertising Date oí Opening of Bids
Antelope Desert April 20,1959 January 20, 1960 North Marsh Modoo Point Syban
Chiloquin July 1, 1959 April 1,1960 Yainax Black Hills
Yamsey Mountain November 1, 1969 August 1,1960 Skelloek Saddle Mountain South Calimus
In addition, on March 1,1960, the North Marsh, Modoc Point and Sykan Units were readvertised, the bids to be opened December 1, 1960. Notice of the sales was included in a general prospectus prepared under the date of April 20, 1959. The prospectus included the notices of readvertisement of the three units mentioned above, and a map showing the boundaries of the sustained yield units was attached thereto.
(b) Following the advertising, prospective bidders submitted a number of sustained yield management plans to the Department of Agriculture as provided by § 28 (b) of the Act of August 23,1958,72 Stat. 816. Several of the plans were approved; some were rejected and some were withdrawn. The only bid received at the sales was from the Crown Zellerbach Corporation for the Antelope Desert in the amount of $1,642,182. The amount actually paid, however, was $1,626,016.31 because a credit was allowed for timber killed by fire during the period of advertising. The bid was accepted by the Department of Interior on January 28,1960, and a deed covering the unit was executed under the date of May 3,1960. A deed correcting the description of the lands comprised by the unit was executed under the date of April 11, 1961.
(c) On April 1, 1961, all of the sustained yield units, except the Antelope Desert Unit, remained unsold. As provided by § 28 (d) of the Act of August 23,1958,72 Stat. 817, by a Proclamation of April 13,1961 (26 Fed. Keg. 3251 with correction at 3444 (1961)), the Secretary of Agriculture transferred the remaining units to the National Forest System. The realization value of the 10 units, which was determined by taking the average of the three review appraisals, was $68,716,691, which amount was deposited in the Treasury of the United States for the group of withdrawing Indians.
20. (a) In 1959, Congress changed the date for federal acquisition of the Klamath Marsh, amending § 28(f) of the Act of August 23, 1958, 72 Stat. 818, by the Act of September 9,1959,73 Stat. 477, as follows:
AN ACT
To amend the Klamath Termination Act.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in order to permit an immediate payment of the purchase price of the Klamath Marsh, the title to which was taken by the United States by the Act of August 23, 1958 (72 Stat. 816), and thereby make possible partial distribution of funds to the Klamath Indians who have elected to withdraw from the tribe, which will lessen the need for making interim loans to such Indians, subsection 28(f) of the Act of August 13, 1954, as amended (72 Stat. 816), is hereby amended by changing the effective date for the taking of title by the United States from April 1,1961, to the earliest date after September 30, 1959, when the Secretary of the Interior determines that funds for the payment of the purchase price are available from the sale of stamps under the Migratory Bird Hunting Stamp Act of March 16,1934, as amended (16 U.S.C. 718).
Approved September 9,1959.
(b) By a Proclamation of September 7, 1960 (25 Fed. Beg. 8833), of the Acting Secretary of Interior, that portion of the lands designated as the Klamath Marsh, and not conveyed to the trustee for the remaining members, was transferred to the United States pursuant to § 28 (f) of the Act of August 23, 1958, 72 Stat. 818, as amended by the Act of September 9,1959,73 Stat. 477, to be administered in accordance with the law applicable to areas acquired pursuant to § 4 of the Act of March 16, 1934, 48 Stat. 451, as amended or supplemented, 16 U.S.C. 7l8d.
(c) The lands were designated as the Klamath Forest National Wildlife Eefuge and contained 14,641.02 acres. The consideration was $476,401, which was the average of the three review appraisals. It was deposited in the Treasury of the United States for the benefit of the group of withdrawing Indians.
21. Prior to the termination legislation, the tribe owned the beneficial interest in considerable property in addition to the timberlands included in the 11 sustained yield units, the Klamath Marsh, and the lands conveyed to the trustee for the remaining Indians. This property consisted of tim-berlands not susceptible to sustained yield management (commonly referred to as "fringe units"), grazing lands, farmlands, buildings, miscellaneous tracts, and personal property. The remaining property (exclusive of the 11 sustained yield units and the cemetery sites) was sold to the highest bidder without restrictions as to use and without any minimum price. Withdrawing Indians were permitted by § 5(a) (3) of the Act of August 13, 1954, as amended by § 7 of the Act of August 23,1958,25 U.S.C. 564d(a) (3), to bid on the property or to meet the highest bid of a nonmember and to have the cost charged to their distributive shares of the tribal assets. Pursuant to this authority, withdrawing members of the tribe purchased some of the property.
22. Pursuant to § 4 of the Act of August 28,1958, 72 Stat. 819, the contract with the management specialists was terminated on October 24, 1958, and the Secretary of Interior assumed all functions, including those of the management specialists, under § 5 of the Act of August 13, 1954, as amended.
23. On August 12, 1961, the Secretary of Interior published a Proclamation, 26 Fed. Eeg. 1362, declaring the termination of federal supervision over the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians and the members thereof, effective August 13, 1961, as provided by § 18 of the Act of August 13, 1954, as amended, 25 U.S.Ó. 564q.
24. Between August 13, 1954 and July 1, 1958, nine contracts for the sale of timber on tribal lands were entered into and approved by the Secretary of the Interior or his authorized representatives. Tribal lands were cut under these contracts and under contracts executed prior to August 13, 1954. The proceeds, less administrative deductions, were, along with funds received from other sources, distributed pro rata to all members of the tribe in amounts comparable to, and in some years larger than, payments made prior to August 13,1954.
25. After July 1, 1958, sales were made of timber on lands selected for the remaining members. Timber sales were also made of timber on lands selected for the withdrawing members for salvage purposes. Eights of way, and trespass fees, etc. were collected.
26. Crazing permits on tribal lands continued to be issued each year through the 1960 grazing season, except as to lands actually disposed of earlier. Other income was derived from tribal assets prior to their actual disposal and from other sources. Income from these sources was realized up to, and in some instances subsequent to, August 13,1961.
27. All income accruing prior to July 1,1958 was deposited in a tribal account or accounts and was used to pay tribal and agency expenses, expenses of termination, pro rata distributions among all tribal members, or used in adjusting tbe value of property selected for tbe remaining or withdrawing groups.
28. All income accruing after July 1,1958 from properties selected for sale for the benefit of withdrawing members was deposited in a tribal account maintained in tbe Treasury of tbe United States for tbe benefit of tbe withdrawing members. All such funds, less expenses of termination chargeable to such group, including reimbursements to tbe United States of certain administrative expenses, and less a reserve for anticipated expenses, accruing up to August 13, 1961, have been distributed pro rata to tbe withdrawing members.
29. All bicorne accruing after July 1, 1958 from property selected for transfer to tbe tribal trustee for management for the benefit of tbe remaining members was deposited in an account maintained in tbe Treasury of the United States for tbe benefit of tbe remaining members. All such funds, less expenses of termination chargeable against such group, including reimbursement to the United States of certain administrative expenses, and less a reserve for certain anticipated expenses, have been transferred to tbe tribal trustee.
30. Apart from authorized deductions, no income derived from any of tbe tribal assets prior to actual disposition or actual transfer of title to the United States was retained by tbe United States for its own account.
CONCLUSION on LAW
Upon tbe foregoing findings of fact, which are made a part of tbe judgment herein, tbe court concludes as a matter of law:
1. There was no eminent domain taking by the defendant of tbe Antelope Desert Unit or of the fringe or miscellaneous units, or of personal property. If a claim of breach of fiduciary duty is made as to any of these properties, the valuation dates should be May 3, 1960, for the Antelope Desert Unit and the various dates of sale for the other properties.
2. The ten other "sustained yield" units of the Klamath Forest were taken by the defendant by eminent domain on April 15,1961, and should be valued as of that date.
3. The Klamath Marsh was taken by the defendant by eminent domain on September 7,1960, and should be valued as of that date.
4. The case is remanded to the trial commissioner for further proceedings in accordance with the opinion of the court and the foregoing conclusions of law.
We are indebted to Commissioner Louis Speetor for bis findings of fact, which we adopt with some additions, and for his opinion, which has been very helpful, and which we use in part, although we reach a different result.
House Concurrent Resolution 108, 67 Stat. B132.
68 Stat. 718, as amended, 26 U.S.O. § 564 et. seq. (1964).
Ch. 732, § 5(a) (2), 68 Stat. 718 (1954), as amended, 25 U.S.C. § 5646(a)(2) (1964).
Ch. 732, § 6(b), 68 Stat. 719 (1954), as amended, 25 U.S.C. § 564e(b) (1964).
Ch. 732, §-3, 68 Stat. 718 (1954), as amended, 25 U.S.C. § 564b (1964).
Ch. 732, §4, 68 Stat. 718 (1954), as amended, 25 U.S.C. § 564e (1964). However, without the approval of the Secretary of the Interior, the property could not be alienated or encumbered until the Secretary conveyed title to the tribal property sold, and transferred title of the remaining property to the legal entity contemplated in the tribal management plan. Id.
For example, the report projected that, If approximately 70% of the Indians withdrew, as much as 2,660 million board feet of saw timber would have to be sold In less than a year In an economic area In which sawmill production ordinarily approximated 300 million board feet per year.
A sustained yield requirement limits the cutting of timber during the year (or comparable period) to that portion which is equivalent to the amount of timber growth during that same period.
71 Stat. 347 (codified in scattered sections of 564, 25 Ü.S.C. (1964)).
72 Stat. 816 (codified in scattered sections of 564, 25 U.S.C. (1064)). The tribe and those represented by the Klamath plaintiffs had sought changes in the 1954 Act (as amended in 1957) but, in the end, did not agree to all of the provisions of the 1958 Act. The persons represented by the Anderson plaintiffs opposed any change in the 1954 Act.
25 U.S.C. § 564-w-Hc) (1964).
Id., § 564(e) (b) (1964).
Id., § 564w — 1(b) (1964).
25 U.S.C. § 564w — 1(c) (1964).
564w — 1(d).
Id., § 564w-1(f).
The value determined was $68,716,691, which together with that of the Klamath Marsh was well within the $90,000,000 maximum limit established by Congress. See 25 Ü.S.C. § 564w-l(d) (1964).
25 U.S.C. § 564w — 1 (f) (1964).
This court has jurisdiction of the two suits under a combination of our general jurisdictional statute, 28 U.S.C. § 1491, and of 28 U.S.C. § 1505 ("The Court of Claims shall have jurisdiction of any claim against the united States accruing after August 13,1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the united States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the united States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band or group.")
The trial commissioner found a talcing of the Klamath Forest (including the Antelope Desert) and the Klamath Marsh on August 23, 1958, when the 1958 amendment was enacted. The Anderson plaintiffs state in their brief that the ten day difference between their position and the trial commissioner's is de minimis, and for that reason they do not challenge the commissioner's date. However, since we reject the commissioner's conclusion, we deem it appropriate to consider the Anderson plaintiffs' original position.
For convenience, we reproduce in the Appendix to this opinion Commissioner Spector's detailed summary of the contentions of the parties on the issues before him.
U.S. Const. art. I, § 8, cl. 3. See Worcester v. Georgia, 31 U.S. (6 Pet.) 350, 379 (1832) ; Perrin v. United States, 232 U.S. 478, 482 (1914).
There is also a significant difference in the measure of recovery under the two theories. If a taking is found, plaintiffs are entitled to the fair market value of the property at the time of the taking, less any amount actuaUy received for the property, plus interest on that sum from the date of the taking. Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937) ; United States v. Klamath Indians, 304 U.S. 119, 123 (1938) ; Uintah and White River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 152 F. Supp. 963 (1957). If, however, damages were awarded for the Government's breach of its fiduciary obligations, no interest would be recoverable. United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49 (1951) ; Osage Nation of Indians v. United States, 119 Ct. Cl. 592, 97 F. Supp. 381, cert. denied, 342 U.S. 896 (1961) ; Peoria Tribe of Indians v. United States, 177 Ct. Cl. 762, 767, 369 F. 2d 1001, 1004 (1966), rev'd on other grounds, 390 U.S. 468 (1968).
As in tills ease, tlie court was asked in Fort Berthold to decide the issue of taking vs. non-taking without regard to evidence as to the actual value of the lands involved. Contrast Confederated Salish and Kootenai Tribes v. United States, post, at 801, 437 F. 2d 458.
The concession by the Government that there -was a taking is quite correct. See Confederated Salish and Kootenai Tribes v. United States, post, at 801, 437 F. 2d 458. The "good faith" principle of Fort Berthold does not apply to acquisition of Indian land by the Federal Government itself.
Tbis dissatisfaction was expressed by representatives of tbe Klamatb plaintiffs.
25 U.S.C. § 564w-l(c) (1964).
25 U.S.C. § 564w-l(d) (1964).
See note 17, supra.
25 U.S.C. 5 564w-1(f) (1964).
On this record we cannot say, moreover, that the triple requirements of the sustained yield covenant, the reversion provision, and the payment of realization value — for the sales of the large Klamath Forest units — necessarily meant that those areas would ultimately have to be acquired by the united States since no private parties would be willing to purchase under those conditions. There was, of course, the actual sale of the Antelope Desert Unit, and we cannot speculate or surmise, a priori, that other sales were rendered impossible by the three conditions. The House and Senate committee reports, cited in the text, infra, show that Congress expected sales to be made.
Ch. 732, §4, 68 Stat. 718 (1954), as amended, 25 U.S.C. § 564c (1964). Upon publication, however, only a limited property interest was created. See note 6, supra.
71 Stat. 347 (codified in scattered sections of 564, 25 U.S.C. (1964)).
The specific withdrawing members were not yet known, of course, since the election to withdraw, or to stay, was still in the future at the time the 1954 Act was passed.
As pointed out in Part I, supra, the court does not now decide whether or not such a claim would lie under 28 U.S.C. § 1491 and 1505, as they apply to these cases.
Under the 1958 Act, the "realization value'' of each unit was set as the minimum price of each unit (25 U.S.C. § 564w-l(b) (1964)). In deriving that value, the review appraisers were required to estimate the fair market value of the forest units as If they had been offered for sale In a competitive market without limitation on use (25 U.S.C. § 564w — 1(c) (1964)). ,
In connection with their claims for taking of the forest, marsh, and Antelope Desert, the Klamath plaintiffs ask for two types of interest: That "provided by law" and interest at the rate of 6 percent on the price paid, to run from the date of taking to the date the purchase price was deposited in the Treasury.
The plaintiffs also claim that minerals and water rights as well as power sites were taken by defendant, when the land to which they were attached or associated was taken. They ask that the value of these be added to the value of the land at the time it was taken.
On the basis of their proposed findings of fact, the Klamath plaintiffs apparently seek a declaration that both present and former members of the tribe have retained the hunting and fishing rights which they possessed prior to the termination of federal supervision.
Note 22 supra.
Note 21 supra.
These restrictions were tlie same as those imposed upon the sale of the other sustained yield timber units.
The Klamath plaintiffs also claim that the breach by defendant of Its fiduciary obligations may have been the cause of delays In the disposition of the properties sold on behalf of withdrawing Indians. They contend that any such delays were financially damaging to them. Therefore, they ask for delay damages, unless the amount of such damages is less than the relief requested above. However, in the event that the commissioner should find a date of taking later than August 23, 1958, and If on the later date the fair market value of the properties taken is lower than that which would have prevailed on August 23, 1958, then they ask for the delay damages as a supplement to the differential between the fair market value on the later date and the sale price.
It is unclear whether the Klamath plaintiffs intend for the property sold to third parties, other than the Antelope Desert unit, to come within the breach claim, although it appears that they do. This property was sold to the highest bidder without restrictions as to use. Klamath plaintiffs' proposed finding 71 reads as follows:
"71. Properties Sold to Third Parties: The United States was trustee of the plaintiffs and their property prior to and during termination. Because of its status as trustee, the defendant possessed full power and control over the plaintiffs' property, including the power to dispose of that property regardless of the wishes of the plaintiff. Therefore, as to property to which it did not take title, but which it sold to other parties pursuant to the provisions of the Termination Act, as amended, it is held that the United States is liable to the plaintiffs for the difference, if any, between the market value of the property and the sale price received, plus interest as provided by law."
The 1954 Act, it will be recalled, provided for the termination of federal supervision at the earliest practicable time but not later than August 13, 1958. Ch. 732, § 6(b), 68 Stat. 719 (1954), as amended, 25 U.S.C. § 564e(b) (1964).
Section 3 of the 1954 Act, it will be remembered, provided for tbe closing of the tribal roll as of midnight, August 13, 1954. No child born thereafter was to be eligible for enrollment. Ch. 732, § 3, 68 Stat. 718 (1954), as amended, 25 U.S.C. § 564b (1964). Section 4 of the Act provided that, upon the publication of the final roll in the Federal Register, the rights or beneficial interest in the tribal property of each person whose name appeared on the roll, were to constitute personal property which could be inherited or bequeathed. However, without the approval of the Secretary of Interior, such personal property could not be alienated or encumbered until the Secretary transferred the title to such property as provided in § 6. Ch. 732, §4, 68 Stat. 718 (1954), as amended, 25 U.S.C. § 564c (1964). Section 6 authorized the Secretary to convey title to property sold to pay the withdrawing Indians their shares in the tribal property, and to transfer title to the remaining property to the legal entity contemplated in the tribal management plan. Ch. 732, § 6, 68 Stat. 719 (1954), as amended, 25 U.S.C. § 564e(a) (1964). The final roll was published in the Federal Register on November 21, 1957. 22 Fed. Reg. 9303, et seg. (1957).
Includes eight cemetery tracts which were conveyed without compensation to a cemetery association pursuant to § 9 of the Act of August 23, 1958, § 9, 72 Stat. 819.