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Congress had announced a clear intention to take the land for public use. Cf. Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389, 408, 424 F.2d 574, 584 (1970). It did not reflect speculation as to what the government would be compelled to pay the Indians for the extinguishment of aboriginal title. The enhancement reflected the conversion of the land to a higher and more valuable use by the railroads, farmers, and others who acted to reap directly the economic benefits of their activities, irrespective of any governmental plans for future acquisition.

The contention of the government is but another way of arguing that the plaintiffs' lands should be valued on the assumption that the aboriginal title was extinguished in 1882 rather than in 1905.To say that the 1905 value of land should be determined on the basis of the way the land existed in 1882 is to value it as of the latter date. The increase in value between those dates largely reflects the development of, and improvements on, the land in the interval. In the prior appeal we held that the plaintiffs' land should be valued as of the 1905 extinguishment date. Since the "value of land held by Indian title is the same as that held in fee simple" and "aboriginal title carries with it the same standard of valuation that would be applicable were the property held ... by fee simple ownership" (Tlingit & Haida Indians, supra, 182 Ct. Cl. at 136, 389 F.2d at 782), the Indians' land must be valued as if they had fee simple ownership until 1905. The Commission properly determined that the value of the plaintiffs' land when their aboriginal title was extinguished in 1905 was $53,527,225.

CONCLUSION

The order of the Indian Claims Commission is affirmed. The case is referred to the Trial Division to determine the amount of any gratuitous offsets to which the defendant may be entitled.

NICHOLS, Judge, concurring:

I concur in the judgment of the court and in its opinion. Defendant's contentions, first heard of, many of them, in

222 Ct. Cl.

this case, would if successful require us to apply a different and less favorable law to the instant claims than to others earlier adjudicated.

The case does illustrate how the artificial postponement of the taking date serves to put a few lucky Indian claimants in the enjoyment of windfalls not available to their brethren in the ordinary case. Before becoming involved in these cases I supposed, as best I can reconstruct it now, that the valuation date, when the claim had progressed that far, would be the date when the Indian was effectively put out of possession of the tract, and the white man had effectively put himself in possession. But it would be a date before the white man had done anything to alter the land, as the Indian had held it; nor would it be covered with railroads, highways, townsites, mines, and the other indicia of white occupancy. Thus no question of paying the Indian for the white man's railroads, mines, etc., could arise. I think most people would agree that such a valuation date would work out fairly as between white and Indian and also as between one Indian tribe and another. If there should be a case of paying the Indian for the railroad the white man had built on his domain, it ought to be an instance of misconduct: a punitive award.

I soon discovered that for varying reasons the date of title extinguishment or of the "taking" though long after the actual ouster date was being allowed to control the valuation date in many cases and to add greatly to awards. In some cases, as here, the doings of Congress in the premises make no other result possible. As the court points out in both our opinions, Congress itself (a) determined that a formal title extinguishment was necessary, and (b) dawdled with the matter to such an extent that the land filled with towns, people, and railroads while the Indians had abandoned the land but remained ignorant whether the modest payment they had agreed to accept for their title would even be forthcoming.

In other cases the facts were different. "Taking" or "extinguishment" dates were often stipulated though Congress had done nothing relevant on the date stipulated and, sometimes, no one else had either. A date was picked out of the air, by methods of selection unknown, though it should have been apparent that every year between the

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date of Indian ouster and the chosen "taking" date would multiply the amount awardable. The Commission has eliminated actual physical structures; thus if the white man had built a bridge the Indian for award purposes does not get the bridge qua bridge, but he gets all the enhancement the bridge added to land anywhere in the tract. As a matter of fact, I do not find the elimination of the bridge itself logical, but it does serve cosmetic purposes. I made myself somewhat of a vox clamantis in deserto, believing as I did that the corpus of the law of eminent domain was too valuable to justify the mayhem being committed upon it even in the worthy cause of relieving Indian poverty. I think I was somewhat in advance of defendant, which reviewed and reconsidered some of its positions as a result, I like to think, of what I had said. Defendant in this case did not ever fail to say what it should have said, so far as I know. It may be the Supreme Court will be receptive as it is free to correct past errors in a way not possible to us. Whether this case had come up early or late, with or without the precedents the court hurls at the defendant, it still would be as hard a case as could be devised, to bring into conformity the valuation date and the date of Indian ouster, and I just don't think it could have been done. The case should, however, have stood alone as a spot situation, instead of being all too typical of the way in which the gap between the date of Indian ouster and the date of title extinguishment is mercilessly exploited.

The entire body of doings under the Indian Claims Commission Act, 25 U.S.C. § 70a, will, I think go down into history as a prime example of how our affluent society worked during its prime when it seemed inconceivable it would ever run out of affluence.

610 F.2d 756

WILLIAM B. FLAHERTY v. THE UNITED STATES [No. 188-78. Decided December 12, 1979]

ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT Civilian pay; claim for back pay; GS reemployment rights and salary on termination of assignment to Foreign Tax Assistance

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222 Ct. Cl. Service.-Plaintiff voluntarily served four successive tours of duty abroad under the Foreign Tax Assistance program (FTAS), commencing on January 1, 1967 when he was an IRS employee at grade GS-13, step 5. The last tour commenced January 1974 and terminated November 1975, by which time plaintiff's FTAS salary was equivalent to GS-16. Upon return to the IRS, he was given a position at GS-13, step 10, for one day, and was then immediately promoted to grade GS-14, step 10, but under the Salary Retention Act, Pub. L. 92-392 he continued for two years to receive the equivalent salary of GS-16 until November 1977 when it was reduced to GS-14, step 10. Plaintiff seeks the difference in pay since November 1977, invoking Whelan v. United States, 208 Ct. Cl. 688, 529 F. 2d 1000 (1976), and Carrasco v. United States, 215 Ct. Cl. 19 (1977). Reemployment rights and procedures are covered by Internal Revenue Manual Secs. 183(10).8 and 183(10).9. It is held that the combination of three factors distinguish plaintiff's situation from the situations in Whelan and Carrasco: (1) the IRS regulations apply only to the first two foreign assignments, (2) plaintiff accepted the fourth tour knowing that his reemployment rights upon return would be to a GS-13 position, and (3) before plaintiff's return the pay equivalent provision in the Manual was deleted; there is no reason in fairness or justice for refusing to follow in this case the language of Sec. 183(10).9 which suggests that no right to reemployment pay "vests" until the employee returns on completion of his foreign assignment, and under the amended regulation there is no right to the Whelan-Carrasco level of pay. Plaintiff is not entitled to recover, defendant's motion for summary judgment is granted, plaintiff's cross-motion is denied, and the petition is dismissed.

Civilian pay; overseas employees; Foreign Tax Assistance Staff; reemployment rights and salaries of returning employees.

[1] Internal Revenue Manual Secs. 183(10).8 and 183(10).9 relating to Foreign Tax Assistance Service returning employees' reemployment rights and procedures, are in pari materia and are to be read together as covering the same employee; the regulations prescribe the employees' rights only for the first two consecutive assignments. Statutes

223.2(1)

Civilian pay; overseas employees; Foreign Tax Assistance Staff; reemployment rights and salaries of returning employees. [2] Where plaintiff was advised when he left on his administratively extended fourth overseas assignment of his reemployment rights to a GS-13 grade and where IRS Manual Sec. 183(10).9 was amended during plaintiff's fourth tour but prior to its completion deleting the provision granting such returning employees the pay equivalent to that they were earning under FTAS, plaintiff had no reasonable expectation of being paid upon his return the higher salary later mandated by Whelan v. United States, 208 Ct. Cl. 688, 529 F. 2d 1000 (1976). There is no reason in fairness or justice for refusing to follow in this case the language of the amended regulation.

Internal Revenue 1221

John I. Heise, Jr., attorney of record, for plaintiff. John P. Rhody, Jr., of counsel.

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Richard J. Webber, with whom was Acting Assistant Attorney General Alice Daniel, for defendant. Michael J. Riselli, of counsel.

Before DAVIS, KUNZIG and BENNETT, Judges.

DAVIS, Judge, delivered the opinion of the court: Once again we are called upon to consider the pay of an employee of the Internal Revenue Service on his return from a foreign tour of duty under the Foreign Tax Assistance Program (FTAS). In Whelan v. United States, 208 Ct. Cl. 688, 529 F.2d 1000 (1976), and Carrasco v. United States, 215 Ct. Cl. 19 (1977), we ruled that, under the then controlling Revenue Service regulation, the employees were entitled on their return to IRS compensation no less than they received in their foreign assignments. We take a contrary position in the present case because of the different circumstances of this plaintiff's fourth foreign assignment (at issue here) and his return from that tour to the Service.

Plaintiff began his first limited assignment to the FTAS (now called the Tax Administration Advisory Service, TAAS) on January 1, 1967, when he was an IRS employee at grade GS-13, step 5. His second consecutive assignment followed in January 1969, then a third consecutive assignment in July 1971, and a fourth in January 1974. All these assignments were voluntarily undertaken, with plaintiff's concurrence and at his desire. During the four assignments his salary under the FTAS program rose so that, at the time of his return in November 1975 to domestic service with IRS, his salary with FTAS was equivalent to that of a GS grade 16.

When he came back at the beginning of November 1975 he was given a position, not at grade GS-15 or GS-16, but at GS-13, step 10, for one day, and was then immediately promoted to a grade GS-14, step 10. Under the so-called Salary Retention Act, Pub. L.92-392, 86 Stat. 564, 569, formerly 5 U.S.C. § 5345, he continued for two years to receive the last salary (equivalent, as we have said, to a

1 In Carrasco, however, we held on rehearing that a returning employee could not receive the salary of a supergrade position. 215 Ct. Cl. 1044 (1978).

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