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Indian claims; appellate review by Court of Claims; former decision as law of the case.

[9] 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.

Federal Courts 950

Courts; former decision as law of the case.

[10] The exception to law of the case doctrine where evidence on a subsequent trial is substantially different, is inapplicable where by the prior appeal the issue is not left open for decision.

Indian claims; land; value of land; measure or proof of value of land taken.

[11] In determining compensation to be paid the Indians for aboriginal title land taken by the Government, while the Indians are not entitled to the value of improvements placed on the lands prior to the pre-taking valuation date, the value enhancement resulting from those improvements is properly included in the fair market value of the lands. Here, the enhancement in value of the Indians' land between 1882 and 1905 (valuation date) were not the result of or attributable to governmental activity, but rather to the activities of private parties such as railroads and farmers.

Indian claims; land; value of land; standard of valuation.

[12] The value of land held by Indian aboriginal 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. Here, the Indians' land must be valued as if they had fee simple ownership until 1905-the date of extinguishment of Indian title.

United States 105

Dean K. Dunsmore, with whom was Assistant Attorney General James W. Moorman, for appellant. Robert E. Fraley, of counsel.

Glen A. Wilkinson, attorney of record for Turtle Mountain Band of Chippewa Indians, for the appellees. Rodney J. Edwards, attorney of record for Red Lake and Pembina Bands. Lawrence C. Mills, attorney of record for Little Shell Band of Montana and Little Shell Band of North Dakota. Marvin J. Sonosky, Harry R. Sachse, Sonosky, Chambers & Sachse; Stormon & Stormon; Frances L. Horn, Wilkinson, Cragun & Barker; Jack Joseph, Louis L. Rochmes, and Mills & Garrett, of counsel.

Before FRIEDMAN, Chief Judge, NICHOLS and SMITH, Judges.

222 Ct. Cl.

FRIEDMAN, Chief Judge, delivered the opinion of the

court:

This is an appeal by the United States from an interlocutory order of the Indian Claims Commission awarding plaintiff plaintiff Indian bands (appellees here) $52,527,337.97 as compensation for the extinguishment of their aboriginal title to land. The amount is the difference between the fair market value of the land on the date of extinguishment of the aboriginal title and the compensation the government previously paid for the land.1

At issue in this litigation is a tract in excess of 8 million acres located in north-central North Dakota on the Canadian border. A group of Chippewas, including plaintiffs, moved westward into this area in the early 19th century and successfully established themselves there. In 1882, the area was surveyed by the government and opened up for settlement. Subsequently, Congress sought to acquire this region and established the McCumber commission for that purpose. Negotiations with the plaintiff bands eventually culminated in a pact, known as the McCumber Agreement, approved in its final form by Congress on April 21, 1904, 33 Stat. 189, and by the Indians on February 15, 1905, under which the plaintiffs ceded title to the land and received $999,887.03.

This is the second time the case has been before us. In the prior appeal, we upheld the Commission's findings (23 Ind. Cl. Comm. 315 (1970)) that the plaintiffs had aboriginal title to the land and that their title was extinguished in 1905 by the McCumber Agreement. Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 490 F.2d 935 (1974). In the present appeal, the government does not dispute either plaintiffs' aboriginal title or the inadequacy of the original compensation for its cession. It contends only that the Commission's determination of fair market value at the time of acquisition was incorrect in the two respects discussed below. We reject both of these challenges to the Commission's order and affirm it.

I This order and its accompanying opinion are reported in 43 Ind. Cl. Comm. 251 (1978). The Commission left for future determination the amount of any gratuitous offsets to which the government may be entitled under 25 U.S.C. §70a. This case has been transferred to this court for such future proceedings pursuant to the Act of Oct. 8, 1976, Pub. L. No. 94-465, § 2, 90 Stat. 1990 (to be codified in 25 U.S.C. § 70v).

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I.

A. In its previous decision the Commission found that prior to 1905 the plaintiffs had aboriginal title to the land. The government challenged that finding on four grounds (203 Ct. Cl. at 437, 490 F.2d at 941):

(1) Indian title was not acquired prior to the assumption of United States sovereignty through the Louisiana Purchase; (2) there was no exclusive use and occupation by Chippewas because of the presence of large numbers of "mixed bloods"; (3) any Indian title that may have existed was "extinguished" prior to the 1905 taking; and (4) the findings on aboriginal title are inadequate.

In our opinion we carefully considered and rejected each of those contentions. With respect to the argument that the plaintiffs' aboriginal title was extinguished prior to 1905which the defendant continues to press here we stated that the government's argument was that the title "was 'extinguished' before February 15, 1905, when the McCumber Agreement became effective . . . because of the establishment of an Executive Order reservation, the impact of white settlement, or voluntary abandonment of the area by the Indians (or all three together)." Id. at 443, 490 F.2d at 944.

We declined to consider "new" evidence on this point which the United States had not offered before the Commission but included in an appendix to its brief, since "no good excuse for this neglect had been suggested" (id., 490 F.2d at 945) and therefore "appraise[d] the Government's points on the basis of the record made before the Commission." Id. at 444, 490 F.2d at 945. Noting the settled principle that Congress has "the exclusive right to extinguish Indian title" (id.) or "to eliminate aboriginal title" (id. at 447-48, 490 F.2d at 947), we concluded that neither the establishment of the Turtle Mountain Reservation by Executive orders of 1882 and 1884, the entry of white settlers on the land, nor the Indians' alleged voluntary abandonment of the land showed an extinguishment of aboriginal title before 1905.

B. Under well-established principles, that determination is the law of the case and impervious to challenge on subsequent appeals. The doctrine of law of the case

222 Ct. Cl.

"expresses the practice of courts generally to refuse to reopen what has been decided." Messenger v. Anderson, 225 U.S. 436, 444 (1912). Thus, "once a case has been decided on appeal, the rule adopted is to be applied, right or wrong, absent exceptional circumstances, in the disposition of the lawsuit." Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554 (5th Cir. 1978).

This is a compelling case for applying the doctrine. The two grounds upon which the defendant now challenges the Commission's earlier determination that Indian title was not extinguished until 1905-that title was extinguished by the creation through Executive order of a reservation in 1882, or by the "entry [after 1882] of settlers, homesteaders, railroads and others onto the award area”—were fully argued to and considered and rejected by us in the prior appeal, and we denied rehearing en banc. No litigant deserves an opportunity to go over the same ground twice, hoping that the passage of time or changes in the composition of the court will provide a more favorable result the second time. See Roberts v. Cooper, 61 U.S. (20 How.) 467 (1857); White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967); Lumberman's Mutual Casualty Co. v. Wright, 322 F.2d 759, 763-64 (5th Cir. 1963).

The provision in the Indian Claims Commission Act that permitted appeals to this court from "any interlocutory determination by the Commission establishing the liability of the United States" (25 U.S.C. § 70s(b) (1976)), confirms the soundness of treating the decision in such an appeal as the law of the case. The provision was designed to give the parties before the Commission the opportunity to avoid the time and expense involved in litigating questions relating to the amount of recovery until the liability of the United States definitively was determined. Having chosen to seek interlocutory review of the Commission's determination of the date of extinguishment of aboriginal title, the government should not be permitted a second chance to litigate that question because it is dissatisfied with the outcome of the first appeal. To permit such relitigation would frustrate the basic policy of the interlocutory appeals provision of the Indian Claims Commission Act.

We have applied the law-of-the-case doctrine to preclude Indian tribes from relitigating an issue determined against

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them in an interlocutory appeal. Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 204 Ct. Cl. 831, cert. denied, 419 U.S. 901 (1974). We follow the same practice here with respect to the United States.

The government contends, however, that the prior decision is not the law of the case because it was rendered in an interlocutory appeal.2 As we have just seen, however, this argument is inconsistent with the purpose and concept of the interlocutory review provision of the Indian Claims Commission Act. Moreover, it is a common practice in this court first to determine liability and then to remand the case to the Trial Division for computation of damages. Issues fully resolved at the liability stage are not open for reargument in later stages. See, e.g., Trans Ocean Van Service v. United States, 200 Ct. Cl. 122, 470 F.2d 604 (1972); Gearinger v. United States, 188 Ct. Cl. 512, 412 F.2d 862 (1969). The general rule, in fact, is that "once affirmed on appeal, . . . an [interlocutory] order loses its interlocutory character and becomes the law of the case." United States ex rel. Greenhalgh v. F.D. Rich Co., 520 F.2d 886, 889 (9th Cir. 1975). See also National Airlines, Inc. v. International Association of Machinists & Aerospace Workers, 430 F.2d 957, 960 (5th Cir. 1970), cert. denied, 400 U.S. 992 (1971) (issue "settled exclusively" on preliminary injunction motion is law of the case).

C. Although law of the case "is not an inexorable command" (White v. Murtha, supra, 377 F.2d at 431), as a matter of sound judicial practice, a court generally adheres to a decision in a prior appeal in the same case unless one of three "exceptional circumstances" exists: "the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly

2 The government cites United States v. United States Smelting Refining & Mining Co., 339 U.S. 186 (1950), for this proposition. The Supreme Court viewed the judgment in the earlier decision in that case, however, as nonfinal because it merely remanded the case to an administrative agency for further proceedings; "when the case was first remanded, nothing was finally decided." Id. at 198. It was in that sense that the Court used the language the defendant cites that it "requires a final judgment to sustain the application of the rule of the law of the case." Id. at 199. In the present case, in contrast, our decision the prior appeal definitively determined that the plaintiffs' aboriginal title was extinguished in 1905, and that was a final judgment on that issue.