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erroneous and works a manifest injustice." Id. at 432. The government contends that this case comes within the first and third of these exceptions since, it asserts, the original decision was clearly erroneous and works a manifest injustice, and substantial new evidence was presented at the valuation trial. We disagree.

1. The government has not shown that our prior decision either was clearly erroneous or worked a manifest injustice upon it. "[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.” Zdanok v. Glidden Co., Durkee Famous Foods Division, 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934 (1964).

The mere contention that the prior decision was incorrect, or that if the court considered the issue anew it probably would come out the other way, is not "good reason" for permitting relitigation of an issue decided in a prior appeal. Indeed, a prior decision is the law of the case even when the original decision was rendered without dispute or when the arguments against the first decision are newly presented at the second appeal. See Trans Ocean Van Service, supra, 200 Ct. Cl. at 141, 470 F.2d at 615; Gearinger, supra, 188 Ct. Cl. at 517, 412 F.2d at 865; Bolton v. Murray Envelope Corp., 553 F.2d 881, 883 (5th Cir. 1977). There is even less reason for reexamining a prior decision where, as here, the arguments urged in the second appeal were fully presented and considered in the prior one.

The purpose of the law-of-the-case principle is to provide finality of judicial decisions. A strong showing of clear error therefore is required before a court should reexamine its decision in the prior appeal. Speaking for the court in Zdanok, supra, 327 F.2d at 952, Judge Friendly noted that a conflicting Sixth Circuit opinion, a vigorous dissent to the initial decision, and a great amount of critical discussion of that decision in law reviews made him doubt whether the court would follow its earlier decision if presented with a different but similar factual situation. But, he went on, "[t]his is precisely the situation in which 'the law of the case' is decisive; . . . 'mere doubt on our part is not enough to open up the point for full reconsideration.' "3

3 The Second Circuit en banc subsequently overruled its first Zdanok decision. Local 1251 Int'l Union of United Auto., Aircraft & Agricultural Implement Workers v. Robertshaw Controls Co., 405 F.2d 29 (2d Cir. 1968).

1

In Indian claims cases before this court, even "plain" error may not be "sufficiently gross and flagrant to justify breaching the law of the case doctrine." Three Affiliated Tribes, supra, 204 Ct. Cl. at 835 (Nichols, J., concurring in the result). In this case, not only is there no "plain error," but the government's failure to present any new indications of error does not even create the doubts that Judge Friendly in Zdanok ruled were insufficient to warrant reconsideration of the prior decision.

2. The government's argument that new evidence introduced at the valuation trial justifies reconsideration of the prior decision is not persuasive. This "new" evidence, all pertaining to the scope of white settlement before 1905, covers basically the same ground as the evidence that the government attempted to get before the court on the prior appeal after it had failed to introduce it before the Commission. We there declined to take judicial notice of this material because it "comes too late," and the government had not shown any valid reason for its failure to present the evidence to the Commission. 203 Ct. Cl. at 443, 490 F.2d at 945. Evidence submitted too late for consideration on this issue in 1974 cannot be used 5 years later as justification for reopening this issue.4

In addition, the evidence is irrelevant under the rationale of our prior decision. The basis of that decision was that Congress has the exclusive power to terminate aboriginal title, that Executive action could not have that effect unless Congress clearly had manifested its intention that that action do so, that Congress had not authorized termination of plaintiffs' aboriginal title by Executive order, and that "if the Executive Order reservation was ineffective, in these circumstances, to end the aboriginal ownership, it follows a fortiori that the acts of private citizens were also insufficient." Id. at 447, 490 F.2d at 947. The additional evidence is relevant only to the government's contention that settlement and development of this area by private parties between 1882 and 1905 terminated title. Since that evidence could not affect the basis upon

4 Cf. National Airlines, Inc. v. Int'l Ass'n of Machinists & Aerospace Workers, 430 F.2d 957, 960 (5th Cir. 1970), cert. denied, 400 U.S. 992 (1971) ("The exception to law of the case where 'evidence on a subsequent trial [is] substantially different' is inapplicable where by the prior appeal the issue is not left open for decision.").

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which we acted in our prior decision, it does not justify reopening that decision.

II.

A. The government also argues that the Commission applied an incorrect standard in valuing the plaintiffs' land as of the extinguishment date of February 15, 1905, at $53,527,225. By 1905, the land was covered by a railroad network "described as the most extensive rural system per population in the United States at this time." Turtle Mountain Band of Chippewa Indians v. United States, 43 Ind. Cl. Comm. 251, 284 (1978). Approximately 95,000 nonIndians lived in the area, almost 24,000 of whom lived in the 34 towns there. The tract's highest and best use was commercial agriculture, and in 1905 there were from 14,000 to 15,000 operating farms in the tract, utilizing at least 5 million acres of land. Most of the amenities of civilization were present in the area. Id. at 282-87.

The government contends that the enhancement in the value of the land brought about by this development was "created by the activities of the United States or by the activities of others whose actions are imputable to the United States," and that the governing principle here is that "in the taking of lands the United States is neither required to pay for the enhancement in value created by the United States, nor may the United States take advantage of any depreciation in value caused by its actions." It points out that the government furnished the white settlers with land under the Homestead Act and also granted land to the railroads for rights-of-way. The government's expert witness, therefore, "appraised the tract as raw virgin land as the surveyors saw it [in 1882], [b]ut. appraised it in this condition as of February 15, 1905." Under this approach, the government urges a 1905 value of between $22,225,385 and $24,312,117.

The Commission rejected this theory, and held (43 Ind. Cl. Comm. at 272):

While it is true that the Indians are not entitled to the value of the improvements which were placed on the lands prior to the 1905 valuation date, the value enhancement resulting from those improvements is properly included in the fair market value of the tract.

1

B. The Commission's decision correctly applied the principle this court has followed in the valuation of aboriginal title Indian land.

In Tlingit & Haida Indians v. United States, 182 Ct. Cl. 130, 146-47, 389 F.2d 778, 788-89 (1968), the court held that the compensation to be paid by the government for land held by aboriginal title includes the enhanced value of that land resulting from white settlement:

Defendant contends that the townsites as such have no additional value other than as acreage is valued generally in each area. This, it says, is true because townsite values were increased by activities of white settlers. We reject this argument.

* * *

[T]he fact that the value had increased up to that date because of white settlers, etc., makes no difference. We are concerned with what the Indians owned at the taking date and what it was reasonably worth at that time.5

Similarly, in another case involving land that on a stipulated title extinguishment date benefitted from good railroads and telegraphs, white settlement, and economic development, the award "plainly of record was enhanced because of... value-enhancing activities such as railroad building, town building, and cattle raising." United States v. Fort Sill Apache Tribe, 209 Ct. Cl. 433, 440, 533 F.2d 531, 535 (1976).

In United States v. Northern Paiute Nation, 183 Ct. Cl. 321, 393 F.2d 786 (1968), this court held that miners working on Indian lands received title as of the date of entry because the government later retroactively validated their title to that date. The miners, therefore, were viewed as imputed agents of the government, which was deemed to stand in their shoes. Id. at 340, 393 F.2d at 797. Nonetheless, because of the use of an average valuation date for the entire tract later than the actual date of taking

5 The government argues that Tlingit & Haida is distinguishable because it was brought under a special jurisdictional statute. The statement quoted in the text, however, contains no such limitation and does not rest upon the special jurisdictional statute. Moreover, we there relied on cases under the Indian Claims Commission Act and used the standard method of valuation as applied in those cases. In addition, we rejected the government's proposed "value to the Indians" approach.

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for these mining areas, "the Commission did not err by refusing to deduct from the valuation of mineral areas the improvements 'made by others." Id. at 339, 393 F.2d at

796.

The principle the government invokes-that it is not required to pay for the enhancement in the value of property it takes that is attributable to its own activity-is inapplicable here because the increases in the value of the plaintiffs' land between 1882 and 1905 were not the result of or attributable to governmental activity. The enhancement resulted from the activity of third persons-the settlers who entered the area, developed the farms, built the towns, and created the commerce of the region, and the companies that built and operated the railroads. The assistance the government provided for these activities through the Homestead Act, the grant of rights-of-way to the railroad, and perhaps other support, did not convert the third persons' activities into government actions within the meaning of the principle the government relies on.

The cases in which the government has been held not liable for increases in the value of condemned property that were attributable to the government's activity involved far different situations. Typically they were cases where the enhanced value resulted from the very project or program for which the government was acquiring the property. In the leading case of United States v. Miller, 317 U.S. 369 (1943), the Court held that the government was not liable for the increase in value of the property that resulted from the knowledge that it probably would be condemned as part of a reclamation project. Similarly, in United States v. Cors, 337 U.S. 325, 334 (1949), the Court held that the just compensation the government was required to pay for a tugboat it had requisitioned during World War II did not include the increased value the government's need for such boats had created, because

as in the case of land included in a proposed project of the government, the enhanced value reflects speculation as to what the government can be compelled to pay. That is a hold-up value, not a fair market value. That is a value which the government itself created and hence in fairness should not be required to pay.

In this case, the enhancement in value is the result of the activities of private parties. It did not occur because

I

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