Seminole Indians v. United States , 455 F.2d 539 ( 1972 )

Nichols, Judge,

concurring:

I join in the fer curiam opinion but would 'like to add a few words in explanation of my position. This is, as the court states, the third recent big appeal from the Indian Claims Commission to be remanded for further findings as to valuation. According to 25 U.S.C. § 70v, as amended by P.L. 90-9, 81 Stat. 11, the existence of the Commission terminates ten years from and after April 10,1962, a date now close at hand. Whether the Commission will live to do what we say it must do, and how the Congress will handle the situation, are matters for speculation. We need to be in the posture of knowing what we want and why, and being able to spell it out. The fer curiam states what we are all agreed on, but if any individual judge has anything to add, I think he should add it.

We sometimes wear an appellate hat and sometimes not. This makes confusion 'easy, and renders it necessary to advert consciously to matters that may be assumed in the deliberation of Circuit judges, who act in an appellate capacity nearly always. In this branch of our jurisprudence the Commission’s findings are conclusive if supported by substantial evidence, thus our function here is appellate. We must take “due account” of the “rule of prejudicial error” and we may remand for such further proceedings as we may direct, 25 U.S.C. § 70s.

Making a value judgment as to the amount of compensation it is just, fair, equitable, or reasonable for a claimant to receive, is a fact determination, which means the fact finder must do it and the appellate tribunal may not, within their respective jurisdictions. Newport News Shipbuilding Co. v. United States, 179 Ct. Cl. 97, 374 F. 2d 516 (1967). If, as in that case, there are guidelines for decision, prescribed by statute or regulation, the fact finding tribunal must show it has given them due regard. If it has not the appellate tribunal can only remand and not redo the job. A dissent in that case pointed out that the fact finder’s decision had responded to the claimant’s presentation. The majority did not deny this, but held that the findings left them powerless to determine if they were based on substantial evidence and incorporated no errors of law. Conversely, the parties here presented this case to us as if we were fact finders, but that did not justify our assuming that role. The parties cannot, together or separately, stipulate or concede the tribunals involved into performing parts other than the ones allotted to them by law. Our position reflects the restriction of the judiciary to its proper role, in which I strongly believe.

The adjudication in Newport News involved determining the reasonable level of profit on a Government contract, an assignment then still novel, considering the rate of adjustment of courts, law, and lawyers to new institutions. It had been therefore considered necessary to lay down guidelines, in the Armed Services Procurement Regulations. Valuation of a parcel of real estate as of a fixed past date is something we have had with us for a long time and think we know all about. On principle it is no different, but usually and in most cases a vast incrustation of judicial decisions of all dates is taken as a substitute for prescribed guidelines. The most important rules to be deduced from these decisions are summarized in Ch. XIV of Nichols on Emi/nent Domain (2d Ed.). Many are negative: one could observe them all and still not know how to appraise any particular tract. For the most part, they are given effect in rulings admitting or excluding particular items of evidence. Many valuations, of course, are made by juries, and before them rules of evidence are applied with particular rigor. Juries do not have to give reasons for their decisions, as the Commission must. 25 U.S.C. § 70r. Rules of evidence thus are different from reasons, and substitute for them in jury cases. The Commission does not give reasons by displaying a record in which such rules of evidence, as are applicable to that class of case and tribunal, are observed.

A fact finding tribunal, which is not a jury, in a valuation case, must make an informed and reasoned determination. So far as the informed part of it is concerned, in these Indian claims, the antiquity of the valuation dates and the vast extent of the tracts to be valued, make guess, inference, surmise, and speculation large factors, even after all available historical and archival material has been assiduously raked together. What we think happened 150 years ago has to be largely mythical. The detailed findings before us here are, except as to certain issues reserved for later determination, as informed as they could be considering everything.

When the information is necessarily so loaded with subjective factors, the temptation is to shrug the shoulders and say it matters not if the reasoning is subjective too, and affirm on the basis of a “gut” feeling that $12,262,780 is enough, even without the 63$. If this was all that was wanted, ¡however, the Congress could just as well have spared us twenty-five years of Indian Claims Commission litigation. They could have appropriated a random lump sum for each tribe and offered it, take or leave, for a release of all claims. They did not adopt this approach, because, I suppose, they did not want it said they had voted out any gratuities. Elsewhere, perhaps, but not here. So the Indians were put to a standard of legal proof. Congress enacted this, and is paying for it, and is entitled to have the job done according to the standard it has prescribed.

In the context of ascertaining a fair and just price to be paid for services, or things, or land, what is a reasoned determination? It is easier to say what it is not. It is not an “intuitive leap” in the happy phrase of counsel in the Nee Perce case. It is not “navigating by the seat of the pants.” It is not a figure arrived at by the fact finders gazing at the ceiling for an bour, then each setting down an amount on a piece of paper, then adding up their figures, then dividing by the number of fact finders. This last I suspect has been the real method of most value determinations since the law began to make them, but that does not make it right.

I would begin to see a reasoned determination if I saw one that had a tentative value or starting point. This might be a “sales index of value” as in the Northern Paiute case, supra, or in some Indian cases, the price at which the Government was selling public land to homesteaders, might be a good one. Then I would look for adjustments up or down, that needed to be made: for example, the Government might have been able to sell the homesteaders only land better than the land to be appraised, and something might have to be knocked off for that. The tentative value would go through several of these adjustments to arrive at an adjusted value. When, as here, the fact uncertainties were so great, it would probably be necessary to start, hypothetically from different tentative values assigned by different methods, and compare the adjusted values reached from each, to make the determined value. It would, with a large tract, likely be necessary to classify the land, into for example, timber, mineral, agriculture, or grazing land, according to its highest and best use, then determine a hypothetical value for each class, and compare the sum of these with the value proposed for the whole. Some computations might be improper as measures of value but helpful as tests: for example, as in the Northern Paiute case, computations as to how much profit a mining company might derive from mining all the minerals estimated to be in the land, adjusted to whatever percentage of this profit it might be willing to share with the proprietor of the soil.

The ’’willing buyer,” the “willing seller” and the “fair market value” are of course always utterly fictitious in these Indian cases, but that ought not to trouble us, for we have it on the authority of Nichols on Eminent Domain (2d Ed.), p. 664, that they are figments, even when it is a matter of determining a contemporary value for a tract of ordinary marketable size. Our “willing buyer”, however, should be at least as plausible as a J. Fenimore Cooper characterbe should have verisimilitude as one who, according to our more elevating myths, might possibly have walked the earth at the time and place involved. He might perhaps be a Daddy Warbucks projected back 150 years, but he could not be like real persons such as Andrew Jackson, David Crockett, Sam Houston, or Jim Fiske. What makes one “willing buyer” difficult to postulate and unhistorical is that he has got to be willing to pay the Indians fair value for their lands, though such were in fact obtainable by chicanery or force, for less or no outlay.

In land valuation cases we usually have expert witnesses: indeed, they are an indispensable aid to the fact finders, in Indian claims as in all others. They select tentative value figures after exhaustive fact investigation, adjust them as needed, test them as their skills and conscience prescribe, and arrive at final value estimates. They hope to have erected a model structure of reasoning the fact finders will adopt or imitate in all its parts in their own decision, but this rarely happens. The expert’s opinion slants too much towards the litigation position of the side that employs him. Common sense tells the fact finders that “fair market value” must lie somewhere between the opposing estimates of the experts, and somewhat remote from both. This does not mean the expert’s report must be rejected as worthless. If the man is any good at all, his report will be full of pertinent facts, pulled out of obscurity and thrust forward, techniques of use for testing the fact finder’s value if not determining it, ideas, and intuitions. Thus, as pointed out in Northern Paiute, the fact finder is not required to choose between swallowing an expert’s report whole, or rejecting it utterly, and usually, neither course is right. It appears to me, however, that an informed and reasoned determination will summarize the experts’ offerings, acknowledge their value, indicate how they have been used, and also point out wherein they were rejected. If an expert’s opinion is not followed, the trier of fact must see a fallacy in it somewhere and it is incumbent on him to point the fallacy out. Otherwise, his decision is not reasoned. Here the 'Commission did this only in a single illustrative instance, saying as to townsites, defendants were too pessimistic and plaintiffs too optimistic. 23 load. Cl. Comm, at 113. I do not think it is reasoning to explain the rejection of Professor A’s figure merely by pointing out that Doctor B’s is different. It may well be true, if both A and B were qualified, gave competent testimony, and based it on facts, the trier of fact might be able to select any figure between A’s and B’s, and have the support of substantial evidence. If he did this without explanation, he would not be making a reasoned determination. The requirement for support of substantial evidence, and for reasoning, are different and discrete, and we cannot affirm if we fail to find either in an appealed determination.

The reasoning, if stated, could be fallacious in our eyes and not necessitate reversal. The trier of fact is free to construct do-it-yourself guidelines when they are not laid down by authority. Cf. Bethlehem Steel Corp. v. United States, 191 Ct. Cl. 141, 423 F. 2d 300 (1970). It is thus the prerogative of the trier of fact to decide how to use his underlying facts, and what ultimate conclusions to draw from them. If he is not arbitrary or capricious, if reasonable people could reason as he does in good faith, it is not for us to say we disagree.

The requirement addressed to us, that we take due account of the rule of prejudicial error, remains to take up. I suppose it means we must not reverse for harmless error, but here we are not reversing, only remanding as we are authorized to do. There is, I believe, no doubt that a party is prejudiced if the trier of fact makes a value determination without divulging reasons. It may not know it is prejudiced, or may state its opinion it is prejudiced in other terms, especially if the trier of fact is not a tribunal of general jurisdiction, but is deemed to possess expertise. Appellant’s assignment IX reads:

The Commission Erred in that the Ultimate Findings on Value are not Supported by the Primary Findings

If this alleges the ground we rely on, at all, it does so in an unartful manner, and the argument in support of the propo-sitian. does not at all rest on our ground. However, the Newport News case stands for the proposition that failure to make a reasoned value determination 'by applicable standards is prejudicial even though the aggrieved party has not informed the trier of fact it was making a mistake and has, indeed, contributed to the error.