Opinion of the Court 146 C. Cls. by the record. Inasmuch as the court felt that the whole record, if made the subject of proper findings, did not support the ultimate finding made by the Commission, the case was remanded to the Commission for the making of additional primary findings. The case before us presents a situation where the primary findings are generally adequate to reflect the essential facts established by the record, but those findings do not support the Commission's ultimate finding on value. In the case of Penn Foundry & Manufacturing Co. v. United States, 110 C. Cls. 374 reversed, 337 U.S. 198, this court awarded judgment to a manufacturer for loss of anticipated profits under a contract for the manufacture of gun mounts for the Navy, the contract having been canceled by the Government a few days after it was awarded. The Supreme Court reversed this court's decision on the ground that the primary findings made by the court did not show that the plaintiff manufacturer was ready and able to perform its contractual obligations; that such readiness and ability to perform were indispensable prerequisites to the plaintiff's right to recover loss of anticipated profits and that because certain findings of fact conclusively established that the plaintiff was neither ready nor able to perform the contract, a finding of readiness and ability could not in fact have been made. In that case the court had made no finding at all as to that essential fact. In the instant case the Commission did make an ultimate finding on the issue of value, but both parties contend that the primary findings made by the Commission require an entirely different ultimate finding.5 Before we examine the Commission's findings we will discuss certain general principles which are applicable in a determination of the value of Indian land at a time in the remote past. The instant case is similar in another respect to the Penn Foundry situation. There this court had made an ultimate finding that if the plaintiff had been permitted to perform its contract, it would have made a net profit of not less than $80,000, and the court entered judgment for that amount. There were no evidentiary findings or primary findings on the subject of damages or the computation of anticipated net profits, just as there are no primary findings supporting the Commission's ultimate finding of value in the instant case. The Supreme Court discussed this issue but did not base its decision upon it. 421 Opinion of the Court First we wish to observe that whether the land to be valued is held by the Indian claimants under recognized title or merely under so-called Indian title, or is held under fee simple title with all the usual rights of ownership, including that of alienation, the Supreme Court and this court have held that such land should be valued in the same way. In the case of United States v. Shoshone Tribe, 304 U.S. 111, the Court of Claims, in valuing land held by recognized title, had included in such valuation the worth of the timber and minerals in the area. On appeal the Government had urged that the Indians' title being less than fee simple in that it merely included the right to use and occupy the land, the value of that land must be less than land held under fee simple title. The Supreme Court said: For all practical purposes, the tribe owned the land. Grants of land subject to the Indian title by the United States, which had only the naked fee, would transfer no beneficial interest. Leavenworth, L. & G. R. Co. v. United States, 92 U.S. 733, 742-743. Beecher v. Wetherby, 95 U.S. 517, 525. The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee. [p. 116] The same issue on value was present in the case of United States v. Klamath and Moadoc Tribe of Indians, et al., 304 U.S. 119, and the same holding was made in that case. In the case of Otoe and Missouria Tribe of Indians v. United States, 131 C. Cls. 593, cert. den. 350 U.S. 848, this court held that both Indian title land to the extent that actual occupancy thereof was proved, and reservation or recognized title land, should have the same value as though it were held in fee simple rather than on the basis of its value as subsistence for primitive Indian occupants as suggested by the Government appraiser. In its petition for certiorari, the Government again urged this theory of valuation. In the case of Coeur d'Alene Tribe of Indians v. United States, 6 Ind. Cls. Com. 1, 38, the Indian Claims Commission held that land held by Indian title (mere permissive use and occupancy title) had the same value as land held by recognized or reservation title or as land held by fee simple title, citing the Shoshone and Klamath cases, supra, as well as Opinion of the Court 146 C. Cls. United States v. Paine Lumber Co., 206 U.S. 467. In the Paine Lumber case the Supreme Court, noting that usually Indian tribes were not permitted to alienate their lands, stated that "The restraint upon alienation must not be exaggerated. It does not of itself debase the right below a fee simple." The problem of valuation may arise in at least three possible settings: (1) where there is neither an open market nor other evidence upon which to base an estimate of fair market value, in which event the courts have held that the Government's minimum statutory price for public land may be considered to be the value of that land; (2) where there is an open market for the land in question so that the actual market value of the land is known or can be ascertained; (3) where there is no open market for the land in question but there is evidence of sales of comparable land in the same area at about the same time which, together with other evidence, justifies a conclusion as to the fair market value of the land being valued. A situation of the first type was present in New York Indians v. United States, 170 U.S. 1, and 614. The other two situations mentioned above are really two aspects of the same thing, i.e., the fair market value approach, one being actual fair market value and the other being an estimated or imputed fair market value. Fair market value was defined by the Indian Claims Commission in The Osage Nation of Indians v. United States, 3 Ind. Cl. Comm. 231, as follows: Market price is the highest price estimated in terms of money which land will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all the uses and purposes to which it is best adapted and for which it is capable of being used. If, as in The Osage case, there is evidence of private sales not controlled by the Government's minimum statutory price for public lands, these sales should be taken into consideration in determining value. In addition, consideration should be given to evidence of sales of reserve sections; sales of land at public auction, bearing in mind the duration of the auction; the location and physical characteristics of the land; 421 Opinion of the Court the type of settlers who purchased the land and their ability to pay for it; and the history and development, both political and economic, of the area in which the land is located. The evidence as a whole, taking all these factors into consideration, may show that the fair market value of the particular land involved is actually less than the Government's statutory minimum price for public land. Such was the case in Rogue River Tribe of Indians v. United States, 116 C. Cls. 454 (1950), cert. den. in 341 U.S. 902. On the other hand, such evidence may show that the fair market value of the land in question is more than the statutory minimum price for public lands as was the case in The Osage Nation of Indians v. United States, supra. In the instant case, as in most cases involving Indian lands, there was no actual free open market in the precise area ceded to the United States in 1818, because the Indians had been unable, prior to the cession, to sell their land to anyone but the United States, and the United States bought the whole tract in 1818. As a result of the Trade and Intercourse Acts, 1 Stat. 137, 138, and 1 Stat. 329, 330, and under the provisions of the Treaty of Greenville of 1795, 7 Stat. 49, the Indian tribes of the Northwest Territory could only sell their land to the United States or with the approval of the United States. Prior to 1818 the Miami Indians had requested the right to sell their lands directly to settlers, but the United States had refused to grant them such permission (finding 29). In the case of the New York Indians v. United States, supra, there was no open market for the land in question, nor was there evidence upon which a fair market value could be estimated. Accordingly, the Supreme Court directed that judgment be entered for the net amount actually received by the Government when it sold the lands at the statutory minimum price, plus an amount which the lands disposed of other than by sale would have brought had they been sold as public lands for the Government's statutory minimum price. In the instant case the Commission did not even allow a recovery on the basis of the minimum statutory price for public land at the time of the cession, which was $2.00 an acre, nor on the basis of the reduced minimum statutory Opinion of the Court 146 C. Cls. price of $1.25 per acre which was established two years after the cession, although the Commission found that nearly all of the land ceded in 1818 was sold by the Government after its acquisition for at least $1.25 per acre. In the New York Indians case, the Supreme Court did not permit the Indians to be penalized because the Government had not chosen to sell most of the lands involved in that case, and accordingly, the Indians were allowed to recover the amount for which the lands could have been but, for political reasons, were not, sold as public lands. Had the Commission in this case been faced with the New York Indians situation of no evidence of market value, the Commission would have been justified in considering the statutory minimum price in effect in 1818, i.e., $2.00 per acre, particularly where there was ample evidence that public lands in the vicinity which were neither as desirable nor as accessible were sold for prices equalling and exceeding the previous minimum statutory price of $2.00 an acre. However, in this case there is evidence, and there are primary findings reflecting such evidence, upon which to base a finding of the fair market value of the lands in question, and it was unnecessary for the Commission to rely solely upon the statutory minimum price for public land. The Commission in this case has made numerous findings on the various elements and factors relating to value which this court and the Commission have previously considered to be proper for a determination of value. Alcea Band of Tillamooks v. United States, 115 C. Cls. 463 (1950); Rogue River Tribe of Indians v. United States, supra; Otoe and Missouria Tribe of Indians v. United States, 131 C. Cls. 593 (1955); Kiowa, Comanche, and Apache Tribes of Indians v. United States, 143 C. Cls. 534, and Osage, supra. In findings 6 and 7 the Commission has described the location and physical characteristics of the lands here in question which were ceded on October 6, 1818. This land is identified on Royce's map of Indiana as Area 99 and is referred to by the Commission and in documents contemporaneous with the sale as "The New Purchase." The land is situated in central Indiana just south and east of the Wabash River and is watered by numerous navigable streams. It was crisscrossed |