The United States v. Southern Ute Tribe or Band of Indians

423 F.2d 346, 191 Ct. Cl. 1, 1970 U.S. Ct. Cl. LEXIS 17

• Court: United States Court of Claims
• Decided: March 20, 1970
• Docket: Appeal 7-66
• Status: Published

Opinions

NICHOLS, Judge.

This ease comes to us on appeal from a decision of the Indian Claims Commission which, in an interlocutory order dated May 16, 1966, found the appellant, the United States, liable to the appellee, the Southern Ute Tribe or Band, for (1) just compensation for taking 230,547.44 acres of land, and for (2) a “further and complete” accounting for funds held in trust. Although notice of appeal was filed on August 4, 1966, after briefing and oral argument we remanded to the Commission for supplemental findings of fact. Upon making the requested findings the Commission again transmitted the case to us, whereupon the parties, relying on earlier submitted briefs, again presented oral argument. Since the Commission's supplemental findings tended to support its original decision, the issues now on appeal are those previously posed.

The Southern Utes, an incorporated tribe composed of the Moache and Capote bands, allege that the United States violated a treaty agreement made with their ancestors and ratified by Congress in 1895. Briefly, the terms of the treaty, which are not in dispute, provided that the western sector of the Southern Ute reservation be set aside for all those who would not accept allotments in severalty. The eastern sector was for Southern Utes who would accept allotments. The unallotted lands in this latter sector were to be opened to white settlers for the cash price of not less than $1.25 per acre. All proceeds, save certain offsets, were to be held by defendant in trust for the exclusive benefit of the Southern Utes. In April 1899, these lands were officially opened to public entry (31 Stat. 1947). In May 1900, however, Congress passed the Free Homestead Act (31 Stat. 179, 43 U.S.C. § 179) which allowed settlers to obtain this land without monetary consideration. The Southern Utes now seek just compensation for 230,547.44 acres of their land that defendant thus donated to homesteaders in violation of the 1895 treaty. Defendant’s primary defense is that all claims relating to these free land dispositions have been settled finally by prior adjudication. We disagree with this contention for the reasons stated in the following discussion and analysis.

In the mid-1800’s, the Ute Indians occupied an extensive region which spanned western Colorado, northern New Mexico and Utah. On March 2, 1868, these Indians — the Tabequache, Moache, Capote, Weeminuche, Yampa, Grand River and Uintah Bands of Utes — ceded their aboriginal lands to the United States in exchange for a 15.7 million acre reservation situated wholly within the boundaries of Colorado. (Treaty of 1868, 15 Stat. 619, 2 Kappler 990). Subsequently, the bands came to be known under different names: The Tabequaches were called the Uncompahgre Utes; the Moache, Capote and Weeminuche, the Southern Utes; and the Yampa, Grand River and Uintah, the White River Utes. Collectively these three Bands were informally organized and styled as the Confederated Bands of Utes.

Some years after the Treaty of 1868 another agreement was forged — the Brunot Cession of 1873. (18 Stat. 36, 1 Kappler 151). The discovery of large and valuable mineral deposits on the Ute Reservation had prompted the United States to persuade the Confederated Bands to cede 3.7 million acres of the east-central portion of their reservation. The relevance of this agreement lies in the geographical consequences it effected. (For convenience, in referring to these geographical sectors we will use the Royce Area numbers taken by the parties from Charles C. Royce’s Map of of Colorado (1) Indian Land Cessions (18th Ann.Rep., B.A.E. 1896-1897, Part II)). By carving out this slice of land (Royce Area 566), the cession nearly severed the original 1868 reservation into two disproportionate parts. Royce Area 616, the larger part, lay mostly north of 566, but a corridor 20 miles across ran north and south between 566 to the east and Utah to the west. Wedged between the New Mexico border and the southern boundary of the Brunot Cession, however, was the remainder of the reservation (Royce Area 617). This narrow strip, 15 miles across, ran from the reservation’s eastern boundary to a point just 20 miles short of the Utah border, its western boundary. The occupants of Royce Area 617 were and still remain the Moache, Capote and Weeminuche Bands, then known as the Southern Utes.

By another agreement ratified by the Act of June 15, 1880 (21 Stat. 199, 1 Kappler 180), the Confederated Bands ceded, or purported to cede, with certain exceptions, the remainder of their diminished 1868 reservation. Because of the critical importance of this cession, we quote the pertinent sections verbatim. ******

The * * * chiefs and headmen of the confederated bands of Utes * * * agree and promise to use their best endeavors with their people to procure their consent to cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.

The Southern Utes agree to remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other un occupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico.

The Uncompahgre Utes agree to remove to and settle upon agricultural lands on Grand River, near the mouth of the Gunnison River, in Colorado, if a sufficient quantity of agricultural land shall be found there, if not then upon such other unoccupied agricultural lands as may be found in that vicinity in the Territory of Utah.

The White River Utes agree to remove to and settle upon agricultural lands on the Uintah Reservation in Utah.

* * * * *

The said chiefs and headmen of the confederated bands of Utes promise to obtain the consent of their people to the cession of the territory of their reservation as above on the following express conditions:

First. That the Government of the United States cause the lands so set apart to be properly surveyed and to be divided among the said Indians in severalty * * *.

******

Second. That so soon as the consent of the several tribes of the Ute Nation shall have been obtained to the provisions of this agreement, the President of the United States shall cause to be distributed among them in cash the sum of sixty thousand dollars of annuities * * *, and so much more as Congress may appropriate for that purpose; and that a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support, and upon such settlement being duly effected, that they are furnished with [other necessities], and that the money to be appropriated by Congress for that purpose shall be apportioned among the different bands of Utes in the following manner: One-third to those who settle on the La Plata River and vicinity [the Southern Utes]; one-half to those settling on Grand River and vicinity [Uncompahgre Utes], and one-sixth to those settling on the Uintah Reservation [the White River Utes].

Third. That in consideration of the cession of territory to be made by the said confederated bands of the Ute Nation, the United States, in addition to the annuities and sums for provisions and clothing stipulated and [otherwise provided by law or treaty], agrees to set apart and hold, as a perpetual trust for the said Ute Indians, a sum of money, or its equivalent in bonds of the United States, which shall be sufficient to produce the sum of fifty thousand dollars per annum, which sum of fifty thousand dollars shall be distributed per capita to them annually forever.

Fourth. That as soon as the President of the United States may deem it necessary or expedient, the agencies for the Uncompahgres and Southern Utes be removed to and established at suitable points, to be hereafter selected, upon the lands to be set apart, and to aid in the support of the said Utes until such time as they shall be able to support themselves, and that in the mean time the United States Government will establish and maintain schools in the settlements of the Utes, and make all necessary provision for the education of their children.

Fifth. [Prior treaties are reaffirmed.]

******

Sec. 2. [Five Commissioners were authorized to present the agreement to the Utes for their ratification, and upon ratification to assess improvements and take a census of the Southern Utes, Uncompahgre Utes, and White River Utes], * * * [A]nd they [commissioners] shall also select lands and allot them in severalty to said Indians, as herein provided, and superintend the removal, location, and settlement of the Indians thereon, and do and perform such other services as the Secretary of the Interior may consider necessary for them to do in the execution of the provisions of this act.

* * •» -X * *

See. 3. That the Secretary of the Interior be * * * authorized to cause to be surveyed, under the direction of said commissioners, a sufficient quantity of land in the vicinities named in said agreement, to secure the settlement in severalty of said Indians as therein provided. And upon the completion of said survey and enumeration herein required, the said commissioners shall cause allotments of lands to be made to each and all of the said Indians, in quantity and character as set forth in the agreement * * * and whenever the report and proceedings of said commissioners * * * are approved by the President * * *, he shall cause patents to issue to each and every allotee for the lands so allotted, with the same conditions, restrictions and limitations mentioned therein as are provided in said agreement; and all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands, at the same price and on the same terms as other lands of like character, except as provided in this act: Provided, That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions of the homestead law; but shall be subject to cash entry only in accordance with existing law; and when sold the proceeds of said sale shall be first sacredly applied to reimbursing the United States for all sums paid out or set apart under this act by the government for the benefit of said Indians, and then to be applied in payment for the lands at [$1.25] per acre which may be ceded to them by the United States outside of their reservation, in pursuance of this agreement. And the remainder, if any, shall be deposited in the Treasury as now provided by law for the benefit of the said Indians, in the proportion hereinbefore stated, and the interest thereon shall be distributed annually to them in the same manner as the funds provided in this act: * * *. (Emphasis supplied throughout, except usual statutory italics.)

******

The most significant aspects to be gleaned from this Act, with respect to our analysis, is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation — Royce Area 616 and 617 — and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share and like their confederates understood that such monies would be held by defendant in trust for their benefit. The Commission found that the Act of 1880 “reserved” Royce Area 617 for the Southern Utes. Although the plain language of the Act appears inconsistent with this finding, the following sequence of events capped by the Act of 1895 and Restoration of 1938 (both discussed infra) support the conclusion that plaintiffs at any rate did not cede their reservation (Royce Area 617) under the agreement of 1880.

Pursuant to the above act the Ute Commission was formed under the leadership of chairman George W. Many-penny. On November 21, 1881, the Commission submitted its report to the Secretary of the Interior (H.R. Doc., Vol. 10, Ser. No. 2018, 47th Cong., 1st Sess. 383 (1882)). Divided into three sub-reports, one for each band in the confederated trio, the report discloses that the removal of the Uncompahgre and White River Utes was not accomplished without some difficulty. Both bands, despite the terms of the above treaty, resisted removal with vehemence. Finally, however, they were persuaded to settle in Utah, outside the bounds of their former reservation. The Southern Utes, on the other hand, were to receive different treatment as forecast by the comments of Chairman Manypenny:

-» * * * * *

When I went to the Southern [Ute] Agency, I found the prevailing opinion was that all the Southern Utes by the terms of the [1880] agreement were to be removed to and located on the La Plata River in Colorado and New Mexico. It was confidently expected that in a brief time the valleys of the Animas, Florida, and Las Pinos, &c., would be open to occupation and settlement by white people. The settlers in these valleys north of the reservation were impatient to enter and possess the land; and when it became known that I had instructed the contractors for surveying, on the completion of their work on the La Plata to pass over to and commence work on the Animas and Florida, there was not only disappointment, but great dissatisfaction manifested. It was asserted that I had deliberately perverted the language of the [1880] treaty and committed a great wrong.

Under the terms of the agreement there was no other land in Colorado that I could have selected upon which to locate these Southern Utes. This I regard as a great misfortune, since their close proximity to the white settlements in the valleys of the streams on which they are to be located will subject the Utes, after their lands are assigned to them and patents issued, and the residue of the lands are opened to occupation and settlement, to constant annoyance by evil-disposed persons.

******

* * * During my stay on the reservation I took occasion * * * to talk to the leading men * * * on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location [in severalty] and the placing of each family on its own land. On many occasions all that I said was listened to without a single word in response, and I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. It will take time and careful management to induce these Indians to abandon their present [way of living] and adopt the new mode of life contemplated by the agreement.

In the meantime, and while the change is going on, they must be protected from annoyance. Intruders must be prevented from going in among them. If this be not done disorder will eventually reign, and all efforts to domesticate them will fail. To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the [fSSO] agreement, so far as these Indians are concerned, as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation, and let the United States laws in relation to Indian reservations have full force therein. Then the land selected, and upon which the Indians are to be located, can be kept free from intruders. Id. at 393. (Emphasis supplied).

Although we stated earlier that the plain words of the 1880 treaty seemed to indicate that the Southern Utes agreed to cede their lands to the United States, Manypenny’s recitals give us some pause. They show that both sides regarded the 1880 agreement as not in effect as to the Southern Utes, pending further measures. By suggesting that the reservation be closed to public entry indefinitely, Manype.nny impliedly suggests that the United States forego, albeit not permanently, its rights under the 1880 treaty vis a vis the Southern Utes. Significantly, Manypenny’s recommendation to modify the 1880 treaty was accepted by the full commission. The record contains, however, no official acknowledgement or response.

Consequent to the departure of the Uncompahgre and White River Utes from Royce Area 616, Congress promulgated the Act of July 28, 1882 (22 Stat. 178), which declared all of Royce Area 616 as public land to be disposed of in accordance with the Act of 1880. Section 2 of the Act of 1882 provided, however, that the Secretary of the Interior “at the earliest practicable day, ascertain and establish the line between [Royce Area 616 and the land] now or lately occupied by the Southern Utes * * Five hundred dollars was appropriated for this survey. Section 3 provided among other things that the land opened in Royce Area 616 would only be disposed of on a cash basis not less than $1.25 per acre.

Plaintiff argues that by section 2 of the above act the United States formally recognized the thin strip of land (Royce Area 617) as the exclusive reservation of the Southern Utes. Defendant explains this survey as merely an attempt to cordon off the Southern Utes’ land “until they could be located in severalty.”

To implement the Act of 1882 the Secretary of the Interior was obligated to instruct the district land offices in Royce Area 616 how to accomplish disposal. From the text of a letter dated August 4, 1882, which ostensibly was sent out for the purpose under the approval of the Secretary of the Interior (Report of the Sec. of Int., Vol. 1, H.R. & Sen. Message & Doc., 47th Cong., 2d Sess. 41 (1882)), we have the following:

* # * * * *

The second section of the act of 1882 provides for a survey of the line between the lands occupied by the Southern Utes and the Ute lands exposed to entry by the act [of 1882]. The following is a description of the line which is laid down on said map: Commencing at the southwest corner of the Ute ceded lands; thence extending the south boundary of the Ute ceded lands to the western boundary of the State of Colorado. (Emphasis supplied).

From this description it would seem that the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession. Specifically, the letter states that the survey line commence at, not in, the southwest corner of the ceded Ute land. Adhering to defendant’s contention that all the lands were ceded in 1880, a literal interpretation of this letter would lead to an anomalous result. If the starting point was placed at the southwestern corner of Ute ceded land, the point would coincide with the converging point of the New Mexico, Colorado and Utah borders. The line could not extend to the western boundary of Colorado because it would start there.

It is also interesting to note how the Southern Utes themselves regarded their status during this time. In February of 1886, Ignacio, the principal chief of the Southern Utes visited Washington, D. C., along with several other of his subordinate chiefs and headmen, and appeared before the Senate Committee on Indian Affairs. The following is a colloquy between the committee and Buckskin Charley who although a subordinate to Ignacio, seemed to perform as spokesman for the Southern Utes (Sen.Rep.No.836, 49th Cong., 1st Sess. 1-2 (1886)):

. Question. Why do you come here for ?

Answer. We come here to see if we cannot exchange our reservation for another.

Q. Where do you want the new reservation located?

A. We want to go west of the present reservation.

Q. Why is it better to go that way ?

A. The present reservation is narrow and long and we want to go west and see if we can’t sell it.

Q. Do you come to Washington with the idea that the Indian Bureau can do what you want?

A. We come expecting to get legislation.

Q. You hold title under statute?

A. Yes. Id. (Emphasis supplied).

Thus the Southern Utes were still in possession of their part of their old reservation under claim of right. The Southern Utes wanted to quit their reservation for a number of reasons. These were pastoral people not interested in farming — the livelihood which the Government then wanted them to adopt. Even if they were willing to farm, their reservation encompassed an insufficient amount of arable land. They complained also that the winters were too harsh and the location too isolated from their traditional Indian neighbors. Their principal lament, however, was the increasing encroachments by neighboring white settlers. Consequent to the Brunot Cession of 1873 and the Act of 1882 opening up the bulk of the Utes’ Colorado reservation, there was an influx of white settlers to the north of the Southern Ute reservation. To the south lay northern New Mexico, which was also being settled at that time. Thus the Indians were wedged between two white communities whose routes of trade and commerce followed the several rivers traversing the reservation. The Government was in a quandary. In a report to Secretary of the Interior dated April 5, 1888, J. D. C. Atkins, Commissioner of Indian Affairs acknowledged the following (Sen.Rep.No. 836, supra, at p. 3):

**«■***

It would be next to impossible to close up the thoroughfares across the reservation. To do that would be to erect a “Chinese wall” 110 miles long, virtually cutting off all trade and intercourse between the large and increasing communities on either side of the reservation; and yet as a matter of fact, we are bound by solemn treaty stipulations [Sec. 2 of Act of 1882?] with these Indians to prevent white people, from entering upon or crossing said reservation.

Two bills were subsequently introduced in the Senate — S.769 and S.1916 — to effectuate the removal of the Southern Utes from their reservation. These bills were never enacted into law and it was not until 1888 that the Congress took positive steps to ameliorate the Indians’ plight. Section 4 of the Act of 1888 (25 Stat. 133, 1 Kappler 266) reads as follows:

The Secretary of the Interior is hereby authorized to appoint a commission * * * with authority to negotiate with the band of [Southern] Ute Indians * * * for such modification of their treaty [1880?] and other rights, and such exchange of their reservation, as may be deemed desirable by said Indians and the Secretary of the Interior; and said commission is also authorized, if the result of such negotiations shall make it necessary, to negotiate with any other tribes of Indians for such portion of their reservation as may be necessary for said band of [Southern] Ute Indians * * * if said Indians shall determine to remove from their present location; the report of said commission to be made to and subject to ratification by Congress before taking effect; * * *.

Plaintiffs assert that this act confirmed the “separation of the Southern Utes, as an entity, from the Confederated Bands * * That the Government negotiated exclusively with the Southern Utes for the “exchange of their reservation”, is construed by plaintiffs “as a further Congressional recognition that the 15 mile strip [Royce Area 617] was the sole and absolute property of the Southern Utes and that they alone had the right to dispose of it.” Perhaps believing it to be damaging to its case, defendant omits all reference to this act in its brief. Although the language of this act tends to favor plaintiffs’ position it is by no means conclusive. It merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act’s exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory. The agreement which emerged pursuant to this act substantiates this view. The Southern Utes agreed, for no additional consideration, to give up their reservation and remove and settle upon a reservation in San Juan County, Utah. Presumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880 and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreement as accruing to the Southern Utes would still accrue.

Although routinely introduced, this agreement failed to receive Congressional approval; for six years it' remained in limbo much to the dismay of the Southern Utes who continued to occupy their besieged reservation. In 1894 it was again introduced. Conceding the “anomalous position [of the Southern Utes] of having ceded their reservation and yet remaining on it”, the Senate Committee on Indian Affairs favored ratification (Sen.Rep.No.279, 53d Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H.R.Rep.No.799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20, 1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty. Since this, too, is a very important Act, the pertinent language will be quoted verbatim:

* * * * * *

Sec. 2. That within six months after the passage of this Act the Secretary of the Interior shall cause allotment of land, in severalty, to be made to such of the Southern Ute Indians in Colorado as may elect and be considered by him qualified to take the same out of the agricultural lands embraced in their present reservation in Colorado, such allotments to be made in accordance with the provisions of the Act of [1880] * * * and the amendments thereto, as far as applicable hereto, and the treaties heretofore made with said Indians: Provided, That Indians taking allotments as herein provided shall retain their interest in all tribal property.

Sec. 3. That for the sole and exclusive use and occupancy of such of said Indians as may not elect or be deemed qualified to take allotments of land in severalty, as provided in the preceding section, there shall be * * * set apart and reserved all that portion of their present reservation lying west of the range line between ranges thirteen and fourteen west of the New Mexico principal meridian, and also all of townships thirty-one and thirty-two of ranges fourteen (fifteen, and sixteen west of the New Mexico principal meridian and lying in the Territory of New Mexico, subject, however, to [certain government rights] * * *; and the Government shall maintain an agency at some suitable place on said lands so reserved.

Sec. 4. That at the expiration of six months from the passage of this Act the President * * * shall issue his proclamation declaring the lands embraced within the present reservation of said Indians except such portions as may have been allotted or reserved under the provisions of the preceding sections of this Act, open to occupancy and settlement, and thereupon said lands shall be and become a part of the public domain of the United States, and shall be subject to entry under the desert, homestead, and town-site laws * * *; but no homestead settler shall receive a title to any portion of such lands at less than [$1.25] per acre, and shall be required to make a cash payment of 50 cents per acre at the time filing is made upon any of said lands: [certain provisos follow] * * *.

Sec. 5. That out of the moneys first realized from the sale of said lands so opened up to public settlement there shall be paid to said Indians the sum of fifty thousand dollars, as follows: Five thousand dollars annually for ten years * * * to be divided equally among all of said Indians per capita, irrespective of age or sex; also the sum of twenty thousand dollars of said proceeds shall be paid to the Secretary of the Interior, who shall invest the same in sheep and divide the said sheep among the said Indians per capita equally, irrespective of age or sex; [certain allotments also made to specific chiefs and headmen] * *; that the balance of the money realized from the sale of lands, after deducting expenses of sale and survey, shall be held in the Treasury of the United States in trust for the sole use and benefit of said Southern Ute Indians. That nothing herein provided shall in any manner be construed to change or interfere with the rights of said Indians under any other existing tfeaty regarding any annuities or trust funds or the interest thereon.

Sec. 6. That the foregoing provisions of this Act shall take effect only upon the acceptance thereof and consent thereto by a majority of all the male adult Indians now located or residing upon the reservation, which acceptance shall be at once obtained under such regulations as the Secretary of the Interior may prescribe. (Emphasis supplied.)

The Southern Utes could have allotments in severalty in Area 617, those who did not take these would move to a reservation in the western sector of Area 617; unallotted eastern sector lands would be sold not donated to homesteaders, for the Southern Utes’ benefit. Unlike the Act of 1888, the Act of 1895 employs language ostensibly consistent with the Act of 1880 but it effects a conflicting result with the latter. We said earlier that by the plain terms of the Act of 1880, the Confederated Bands including the Southern Utes agreed to cede their entire Colorado reservation (Royce Areas 616 and 617) for consideration. Under the Act of 1895, however, the Southern Utes separately ceded all over again a part of their reservation (Royce Area 617) in exchange for an exclusive and additional consideration ! Section 5 not only states that the balance of land sales proceeds, deducting certain Government expenses shall be held in the U. S. Treasury for the sole use and benefit of the Southern Utes, but also that no offsetting reductions should be made in their rights under prior treaties because of this consideration. The meaning to be ascribed this section is a focal point of controversy between the parties.

The Commission found, subscribing to plaintiff’s position, that the United States after the Act of 1880 pursued a patterned course of conduct which at all times regarded the Southern Utes as the rightful owners of Royce Area 617. This conduct culminated in the agreement of 1895 which the Commission viewed as an “ultimate act” recognizing plaintiffs’ ownership rights. Defendant contests this appraisal by offering one of its own. It contends that the additional consideration was actually “special benefits” gratuitously given the Southern Utes to induce them to take lands in severalty. The benefits, defendant admits, were proffered “at the expense of the United States and other Ute Bands.”

Although it is debatable, we believe the evidence weighs substantially in favor of the Commission’s interpretation. We are not persuaded that defendant’s post 1880 conduct followed any clear direction. It was ambivalent, with some actions favorable to plaintiffs’ case and others not. During all this time, however, the fact remains that the Southern Utes were allowed to remain on their surveyed reservation for 15 years after the purported cession, and the right to remove them without their further consent was not asserted or exercised. Here we have an interpretation given to the 1880 treaty by both parties thereto. Congress recognized this anomalous situation and deemed it necessary to tender new consideration for the land. Defendant’s “special benefits’’ theory is supported neither by the express language of the Act nor by the legislative history surrounding its passage. Although earlier reports described the Uncompahgre and White River Ute removals as somewhat hostile, due to their unwillingness to leave, Congress did not think it necessary then to encourage their exodus with monetary inducements. On the contrary, it was reported by the Commissioner administering the White River Utes that military force was contemplated in accomplishing their withdrawal. (H.R. Doc. Ser. No. 2018, supra). Given the relations which existed between the United States Government and American Indians during this period it is difficult now to view the former as acting ex gratia wholly. The Southern Utes at that time, numbered slightly over 1,000. Certainly, if the United States wanted to make a gift it could have done so and still fallen far short of the promises embodied in section 5.

The more tenable theory, in our estimation, is that Congress recognized that by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and honorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that if the land was going to be acquired free and clear new consideration was necessary. Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government’s rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.

This position is bolstered by the Restoration of 1938 (5 Kappler 659), which the Commission found as defendant’s second ultimate act in recognizing plaintiffs’ ownership rights. In an order by the Secretary of the Interior issued pursuant to sections 3 and 7 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984) the Southern Utes were restored to their tribal ownership of all lands not disposed of under the Act of 1895. The first paragraph of this order reads as follows:

* * * [Ppursuant to the provisions of the Act of February 20, 1895 * * * the Southern Ute Band of Indians in Colorado ceded to the United States a large area of their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 * * *. (Emphasis supplied).

Thus, defendant’s officials do not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement. Such a statement by an executive agency bearing on the meaning of a treaty must be accorded great weight. Creek Nation East of the Mississippi v. United States, 165 Ct.Cl. 479, 486, cert. denied, 379 U.S. 846, 85 S.Ct. 37, 13 L.Ed.2d 50, reh. denied, 379 U.S. 918, 85 S.Ct. 258, 13 L.Ed.2d 189 (1964).

I.

A. Defendant’s principal contention that the Southern Utes’ claims have been finally settled by prior adjudication evaporates in the presence of our conclusion. The cases upon which it relies, namely the 1910 accounting case No. 30360 (45 Ct.Cl. 440 (1910)) and the 1950 settlement case No. 46640 (117 Ct.Cl. 433, 436 (1950)), were both intended to settle claims arising out of the 1880 cession exclusively. The Jurisdictional Act of 1909 (35 Stat. 788) which enabled this court to hear the accounting claim of the Confederated Bands was expressly limited to claims arising out of the Act of 1880. Hence any claims exceeding the limits of this mandate which were adjudicated in the 1910 accounting were improvidently heard. Not so limited was the Jurisdictional Act of 1938 (52 Stat. 1209) which authorized the 1950 settlement cases. On the contrary, this act conferred jurisdiction upon us to adjudicate all legal and equitable claims which the Ute Indians or any individual tribe or band thereof may have against the United States as to claims arising under any treaty of the United States. The stipulation — the bulwark of defendant’s case —upon which we entered judgment in case No. 46640, however, was qualified as follows:

* * * [T]he judgment to be entered in this case is res judicata * * as to any land formerly owned or claimed by the plaintiffs [Confederated Band of Utes] in western Colorado, ceded to defendant by the Act of June 15, 1880 * * *. (Emphasis supplied.)

The stipulation recited numerous parcels in 616 and none in 617, though an effort was made for the list to be comprehensive. Since the Commission originally found that the agreement of 1880 only ceded land in Royce Area 616, it concluded summarily that this stipulation did not extinguish the instant claims.

We remanded this case to get a better idea of exactly what the parties meant to stipulate in 1950, namely, what they then thought was ceded by the Act of 1880. As reflected in the Commission’s supplemental findings, plaintiffs’ witness, a signatory to the stipulation and the then attorney of record for the Confederated Bands, gave testimony entirely consistent with the Commission’s original findings. Defendant, however, insisting that the stipulation was self-explanatory and that the intent of the parties would have to be discerned from the written instrument declined to put on witnesses. Of the Government signatories, only one is still living — Marvin J. Sonosky, Esquire, who is a member of our bar and is now in private practice. Having no independent recollection of the precise extent of the stipulation, Mr. Sonosky was unable to give useful testimony. He did indicate, however, in an affidavit submitted to the Commission, that as the attorney in charge of the 1950 Ute litigation he prepared a memorandum recommending settlement. Defendant withheld from the Commission this memorandum and related papers declaring them to be the work products of the attorneys of the Department of Justice and therefore privileged under Order of the Attorney General No. 381-67 (July 4, 1967).

We have recently considered in Weiss v. United States, 180 Ct.Cl. 863 (1967), the question of privilege for papers and opinions prepared by attorneys in the executive branch. The topic is comparatively new and the case law still scanty. We do not believe the privilege should extend beyond the reasons for its existence, which are the freedom of the officials to receive staff advice in confidence, and the reluctance of courts to allow counsel in any lawsuit to raid and use the work product of his adversaries. Mr. Sonosky apparently needed to refresh his memory only, and introduction of his report in evidence was unnecessary. He was not in the employ of plaintiffs. The officials to whom Mr. Sonosky submitted his report, and who approved it, being dead, could not now be embarrassed. The report was not prepared for use in trial of the current or any then pending litigation, but was apparently to explain and justify a settlement. It certainly seems more than questionable whether executive privilege does or should apply to consultation by a witness of a document he himself has prepared, for the purpose of refreshing his memory. If defendant is right, by consistency it should have a privilege to muzzle Mr. S.onosky in case his memory should be adequate without refreshment, yet no such right is claimed or can be imagined. Defendant in this instance has clearly not done all it might have done to clear up any uncertainty there may be about the intent of the parties to the stipulation. We think we are justified in inferring that neither party intended the stipulation to apply to Area 617. The most that can be said is that, by referring to territory ceded in 1880, the stipulation might have been intended to refer to the unexecuted, negated cession of Area 617, or it might not. If we must, as defendant urges, confine our view to the stipulation itself and other papers in that case, we find insufficient reason there to hold it applies to areas not effectively ceded. If we have a right to inquire directly into the understanding of the parties at the time, to resolve an ambiguity, defendant’s handling of the Sonosky memorandum is pregnant with the admission that Mr. Sonosky, his memory refreshed, would not testify favorably to defendant. Since plaintiffs’ testimony was unequivocal and no reason is suggested for disbelieving it, we conclude that the parties never intended the stipulation to apply to Area 617, and therefore it did not so apply-

B. Defendant’s second defense is that plaintiffs, the Southern Utes who now only consist of the Moache and Capote bands, are not the exclusive owners of these claims. Specifically it contends' that either the Uncompahgre and White River Utes have a joint interest in these claims, or alternatively that the Weeminuches, now known as the Ute Mountain Utes, are co-owners with plaintiffs. Because of this alleged failure to join interested parties, defendant, without citing precedent or other authority, urges reversal.

Responding to the first assertion, we find that the Uncompaghre and White River Utes have no interest in the instant claims. The 1895 agreement was made between the United States and the Southern Utes and only the latter were to have any share in proceeds. However apparently inequitable it may have been to grant the Southern Utes joint interest with the Uncompahgre and White River Utes in the Area 616 proceeds and then give them exclusive interest in Area 617 proceeds, this was the stated intent of Congress not to be disturbed presently by this court. Any claim these tribes might raise against the Government to redress this matter would emanate from a right other than that of beneficiaries under the Act of 1895.

Defendant’s second contention raises a more perplexing question. Plaintiffs insist that the Weeminuches, by accepting the western reservation offered in the 1895 agreement, relinquished all claim to any land in the eastern sector. By accepting allotment in the east, the Moache, and Capote similarly relinquished claims to western lands. Hence, plaintiffs assert that since the instant claims all arise out of eastern land dispositions, they, by this mutual exchange, own the exclusive rights. The Commission, without referring directly to this cross-relinquishment theory, concurred in plaintiffs’ conclusion, 17 Ind.Cl.Comm. at p. 52, saying:

* * * [A]ny claim which the Ute Mountain Utes might have * * * would be separate from the claim of petitioner. Petitioner herein claims no land in the present-day Ute Mountain Reservation. (Emphasis supplied).

Fortunately, we can decide this issue without reaching the merits. Although the Commission’s rules of practice and procedure were then and still are silent as to joinder questions, we hold that joinder of parties before the Commission is required only if the joint interest is existing. Assuming arguendo that the Ute Mountain Utes once owned an interest in this claim, we believe that they forfeited it by failing to timely file a claim before the Commission. Not only is this holding literally consistent with our own Rule 62(a) which dictates joinder of any persons “having a joint interest adverse to the United States” (Emphasis supplied) but, it also does no violence to the salient concepts which underlie the joinder of “indispensable” parties rule. By rendering a judgment for plaintiffs, we do not prejudice the claim of the absent Ute Mountain Utes since their claim is no longer extant. Accordingly, consequent to such judgment, defendant will not suffer any inconvenience or harassment of further litigating this issue. We therefore hold that the Southern Utes, consisting of the Moache and Capote bands, are presently the sole and exclusive owners of the instant claims. Hence they are eligible to pursue their remedy without additional parties.

C. Defendant conceded at oral argument that should we find that plaintiffs’ claims were not extinguished by the 1950 settlement, and should we find plaintiffs the sole owners of their claims, then it is liable for gratuitously giving away plaintiffs’ land. Questions of quantum, however, are still raised by defendant. First, it contends that the Commission’s finding that defendant is liable to compensate for 230,547.44 acres is not supported by substantial evidence. Second, in order to avoid payment of interest, it says it is liable, if at all, for breach of contract, rather than to pay just compensation for a 5th amendment taking.

Deferring the acreage issue for the Commission, we now explore the nature of defendant’s liability. Plaintiffs argue that under the 1895 Act their ancestors ceded whatever interest they had in their lands in trust to defendant in exchange for a beneficial interest in the proceeds. Sustained by the Commission below, plaintiffs assert that the free disposal of their lands with no substitute consideration offered by defendant was a taking under the 5th amendment entitling them to the just compensation. Plaintiffs, in support of their position, cite several cases, but the one we find to be most in point is Confederated Bands of Ute Indians v. United States, 100 Ct.Cl. 413, 430 (1943).

Attached to the Jurisdictional Act of 1938, supra, was the so-called Adams Amendment which declared certain Ute land ceded under the Act of 1880 but not disposed of “to be the absolute property of the United States”. In Confederated Bands, supra, we started with the proposition that “[t]he interests and obligations created by the agreement of 1880 do not fit readily into conventional legal concepts, such as trusts, agencies, debts or contractual obligations, and mortgages or security interests.” (p. 425) (Emphasis supplied). We went on to comment that “[t]he problem [was] further complicated by the fact that one of the parties * * * was a sovereign which could and did, regardless of the terms of the agreement, do what it pleased with the lands and their proceeds, giving the Indians the privilege of having their legal rights determined only at long intervals * * * when the sovereign deigned to waive its immunity from suit.” (p. 425). In short, this was not the typical arms’-length contract relationship. Declining to consider whether the Government assumed the duty of trustee, we found that the Indians under the agreement of 1880 retained an interest in the land — the right to the proceeds from sales — and that this interest was destroyed by the enactment of the Adams Amendment. Given these circumstances we held the destruction of this right to be a taking under the 5th amendment. Presently we are confronted with a like set of circumstances. The agreement of 1895 — patterned after the 1880 agreement — embodies rights and interests which similarly evade accurate legal classification. Again, as in Confederated Bands, we have a situation where the Government cavalierly exercised its sovereign power without giving thought to providing consoling justification, let alone immediate chance for redress. By the Free Homestead Act of 1900 (31 Stat. 179) defendant promised that “all sums of money so released [herein] which if not released would belong to any Indian tribe shall be paid to such Indian tribe by the United States * * By failing to make good this legislative promise of substitute consideration, defendant, in effect, dealt with plaintiff’s land as its absolute property. Guided by our reasoning in Confederated Bands, we hold that plaintiffs, under the agreement of 1895, retained an interest in the ceded lands, namely, the right to receive sales proceeds or the equivalent thereof. As in Confederated Bands, this interest was destroyed by defendant’s exercise of sovereign power. We hold therefore that the free disposal of the lands was a taking of plaintiffs’ property right under the 5th amendment entitling them to just compensation.

This holding is not in conflict with Confederated Salish & Kootenai Tribes, etc. v. United States, 175 Ct.Cl. 451, cert. denied, 385 U.S. 921, 87 S.Ct. 228, 17 L.Ed.2d 145 (1966). The pertinent facts of that case are as follows: The Government in 1904 enacted legislation which authorized using plaintiff Indians' monies, held in trust, to defray the expenses of surveying their land. Since we had earlier found that by a prior treaty the Government had obligated itself to assume the cost of surveying, 167 Ct.Cl. 405 (1964), the issue subsequently presented was whether its use of Indian trust funds in violation of the treaty was a taking under the 5th amendment. We rejected this claim for two reasons: First, we noticed that since “legal title to the funds on deposit in the Treasury lay in the United States * * * [the] Indians’ interest was, at most, that of a beneficiary, and a trustee’s failure to live up to the standards imposed upon him is not a taking of title from the cestui but a breach of obligation.”, 175 Ct.Cl. at p. 455. Our second reason, however, raised an even “deeper objection”: “Money in the Federal treasury, even on deposit, cannot be simply equated with private property. Where such funds are involved it requires extraordinary circumstances, not present here, to find an eminent domain taking in a withholding or use of money by the Federal Government.”, at pp. 455-456. We then proceeded to discuss the anomalous consequences plaintiffs’ theory would engender with regard to “claimants who could show some sort of title to funds in the Treasury” and those who could not. We noted further that “[m]ere form sometimes has meaning, but usually not where, as here, the choice of forms seems haphazard and accidental. Considerations like these have impelled courts to shy away, generally, from designating the withholding or diverting by the defendant of funds in the treasury as an eminent domain taking.”, at p. 456. Defendant argues here that its exempting of homesteaders from making cash payments and its failure to reimburse plaintiffs for loss of proceeds at most were breaches of contract or breaches of trust which, even if deplorable, do not constitute a 5th amendment taking. Defendant’s breach of contract argument doubtless springs from our reasoning in Confederated Salish, wherein we noted, even though not argued by plaintiffs, that defendant’s use of Indian monies for a project which it had earlier promised to finance itself was a breach of agreement, that plaintiffs’ violated rights were contractual rights, and that the “taking away of contractual rights, via a rupture of the contract, is of course not equivalent to a taking of property under the Fifth Amendment.”, at p. 455. (Emphasis in original). This is applicable to a mere breach of a contract but perhaps not to its overt repudiation. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934). But, as we have held, we need not find that latter situation here since whatever the exact legal nature of the parties’ interests and obligations under the 1895 agreement, they are more than contractual. Thus defendant’s breach of trust argument must also fail. Admittedly, under the agreement of 1895, defendant promised to hold monies in trust for plaintiffs; hence, as to this res it might well have been called a trustee. Still unclear and unresolved,.however, is defendant’s status as to the lands in question. In our earlier interpretations of the Act of 1880, whose land disposal provisions are sufficiently interchangeable with those of the act at bar, we never described defendant as being an actual trustee as to the lands. Specifically, we said that it was unnecessary to classify the Government as a trustee as to the 1880 lands in question, 100 Ct.Cl. at p. 432, and that it occupied a position “comparable to a trust”, 112 Ct.Cl. at p. 130. If defendant is correct in reading Confederated Stilish as standing for the proposition that breaches of trust are ineligible per se for treatment as 5th amendment takings, then we reply that defendant was not or not solely a trustee as to the lands in question. To say otherwise would necessitate overturning our previous decision that the enactment of the Adams Amendment was a taking. It is obvious, however, from Navajo Tribe of Indians v. United States, 364 F.2d 320, 176 Ct.Cl. 502 (1966) that the United States is not exonerated from paying interest, as for an eminent domain taking, merely because the obligations of the United States with respect to the Indian lands involved in the claim were denominated as being, among other things, those of a trustee.

Since each taking occurred when the ownership of a homesteader became final, Creek Nation v. United States, 302 U.S. 620-622, 58 S.Ct. 384, 82 L.Ed. 482 (1938), we leave it to the parties to decide whether to assume the burdensome task of fixing the date of patent for each homesteader and compute the damages individually, or rather, as suggested by the Commission, to fix an average date or dates for the takings and compute the damages generally.

II.

Plaintiffs’ second claim in this case is for an accounting of funds collected by the defendant in the course of selling plaintiffs’ land under the 1895 agreement. In their petition filed with the Commission on August 10, 1951, plaintiffs timely alleged a claim for an accounting for moneys received by defendant for some 81,953.18- acres of land disposed of in various ways other than as free homesteads. Responding to this claim, defendant submitted a General Accounting Office (GAO) report accounting for proceeds derived from sale of certain lands pursuant to the Act of 1895, together with an accounting of the interest on said proceeds during the period from February 12, 1929 to June 30, 1951. Plaintiffs, after studying this report, filed exceptions to its contents. These exceptions were filed on June 12', 1963. Amended exceptions were subsequently filed on September 30, 1963. The Commission, in its interlocutory order, declared that defendant should make a further and complete accounting in line with specified rulings on each of plaintiffs’ exceptions.

Defendant contests this decision on procedural grounds but makes no objection to the substance of any of the Commission’s rulings on plaintiffs’ exceptions. The procedural defenses are these: First, the accounting claim alleged in plaintiffs’ originally filed petition was already rendered by prior adjudication. Second, the subsequent accounting claims amended in 1963 by way of exceptions were untimely filed additional claims. Hence the Commission under 25 U.S.C. § 70k (1964) had no jurisdiction to rule on these claims. Third, the Commission’s order for an up-to-date accounting was beyond its jurisdiction under 25 U.S.C. § 70a (1964).

Regarding the first defense, we can dispose of it summarily. Since we have held that the 1950 settlement case No. 46640 was limited to settling accounts for the 1880 cession exclusively, we are compelled to find that plaintiffs’ original accounting claim which derives from the agreement of 1895, was not included and is therefore still cognizable.

. The second defense, however, does not admit to such easy disposition'. Plaintiffs, perhaps content to rest on the Commission’s reasoning, made no response to it in their brief. The Commission excused plaintiffs’ late pleadings even though it recognized that the exceptions raised general accounting claims not referred to in plaintiffs’ original petition. Despite the difficulties stemming from the language of its enabling legislation— 25 U.S.C. § 70k — it reasoned that since plaintiffs could not have discovered any of their trustee’s indiscretions until receiving the GAO report, this matter should be treated under the general legal principle that “limitations [do not] * * begin to run until the aggrieved party knew, or should have known, that his trustee had created a cause of action through the handling of the trust moneys.”, 17 Ind.Cl.Comm. at p. 54. This result was deemed particularly equitable in the light of defendant’s “unique position” of not having to render periodic accounting to its “Indian wards”. “It [the Government] should not,” said the Commission, “be allowed to take advantage of that fact for its own protection”. Id.

Although we agree with the Commission’s resolution of this issue, we do not feel compelled to comment on its novel rationale. Rather it is our belief that plaintiffs’ exceptions were merely amendments to their timely filed petition. United States v. Northern Paiute Nation, 393 F.2d 786, 790, 183 Ct.Cl. 321, 328 (1968); The Snoqualmie Tribe of Indians, etc. v. United States, 372 F.2d 951, 959, 178 Ct.Cl. 570, 585 (1967), and as such under the Commission’s rule of procedure 13(c) they relate back to the time of original filing, thus curing the jurisdictional time bar defect. That the Commission itself did not similarly construe these exceptions is understandable, since its 1966 decision in this case was rendered without the guidance of the above mentioned eases. In Snoqualmie we allowed the late amendment because by the Snoqualmie’s original petition the Government “was put on notice in 1951 of the possibility that the Snoqualmie organization might expand the scope of its claim.”, Snoqualmie, 372 F.2d at p. 961, 178 Ct.Cl. at p. 589. (Emphasis supplied.) The same is true of the instant case. Admittedly plaintiffs’ original petition requested an accounting for certain specified items. Responding to this petition, defendant submitted the GAO report but not without expressly restricting its introduction to the issues of liability raised in the petition. This precautionary measure, which the Commission found correctly to be specious, indicated, in our opinion, that defendant knew from the outset that to adequately respond to plaintiffs’ petition it would have to submit the GAO report which contained various ignoble confessions. That it declined to contest before the Commission the substance of plaintiffs’ exceptions underscores its concession to the obviousness of its fiduciary misconduct disclosed in the report. We therefore find that the substance of plaintiffs’ original petition put defendant on notice that it might have to defend against a broader claim. This finding was stated implicitly by the Commission, 17 Ind.Cl.Comm. at p. 55:

We are of the opinion that the allegation for a specific accounting which brought forth the [GAO] accounting report and thereby revealed other and further apparent misuse of petitioner’s funds, is a sufficient basis for requiring a further and complete accounting from defendant with regard to those items questioned by petitioner in its exceptions. (Emphasis supplied.)

Thus, following Snoqualmie and Northern Paiute, we hold that plaintiffs’ exceptions relate back to the date of the original petition.

Defendant’s third procedural contention is that the Commission’s order for an up-to-date accounting report is beyond its jurisdiction. 25 U.S.C. § 70a (1964) on its face bars the Commission from considering any claims accruing after August 13, 1946. In a previous interpretation of this section, however, we have said that where the Government's initial wrongdoing giving rise to a claim accruing before August 13, 1946, but continued past this time, the Indian Claims Commission was free to determine the extent of its jurisdiction in framing an award. Gila River Pima-Maricopa Indians, et al. v. United States, 140 F.Supp. 776, 779, 135 Ct.Cl. 180, 186 (1956), 157 Ct.Cl. 941 (1952). We expressed agreement in that case with the established principle that “a court once having obtained jurisdiction of the persons and subject matter of a suit, retains such jurisdiction for all purposes including the awarding of all damages accruing up to the date of judgment.” We hereby reaffirm our adherence to this principle and hold the Commission correctly ordered an up-to-date accounting for continuing Government wrongdoings which predated and postdated the statutory time bar.

In view of the foregoing, we affirm as to the taking claim and all of the Commission’s determinations related thereto, except for the finding that defendant is liable for just compensation for taking exactly 230,547.44 acres of land, the Commission having offered no explanation as to how it reached this figure. In remanding to the Commission the task of approving the amount of compensation due, we therefore do not restrict plaintiffs’ recovery or fix defendant’s liability at the 230,547.44 figure. We also affirm the Commission’s decision as to the accounting claim. Accordingly, we return the case to it with the task of conducting the accounting consistent with rulings which were the subject of this appeal.

Affirmed and remanded.