Opinion of the Court account of indirect orders which were entered into prior to September 24, 1917, and amounts to $942,277.14, is denied. This leaves an amount of approximately $600,000, as to which, as we understand the situation, there is now no question being raised on the part of the plaintiff other than as to whether all of the aluminum which gives rise to this amount was in fact used for war purposes by parties receiving it or whether it was purchased and used on commercial work. During the hearings, when proof was being offered by the parties, some evidence was offered in the cases of specific contracts, showing use made of such material. However, when it appeared that there were some 400 contracts involved and that the taking of proof with respect to specific use in all of these instances would entail considerable expense and consume much time, much of which would become immaterial in the event it should be held that the fixed price was inapplicable to some of these contracts, the case was submitted without a full showing as to specific use, with the reservation that after decision had been had on the questions now presented, opportunity would be given to both parties to present further evidence on the "use" issue. It should be observed, however, that much proof was received on the general aspects of this issue which leaves little room for doubt that at least the greater part of this material was used for war purposes. Such proof included the early recognition of the need for aluminum for war purposes, the source of supply as limited to plaintiff and its related companies and the measures which were taken by defendant to enable plaintiff to meet the war needs for its product, the requirement for the use of priority orders for this product before shipments could be had, the large amount claimed and allowed plaintiff for amortization as a deduction in its income and profits tax returns for the war years on the ground that its facilities were devoted to war purposes, and other material facts. In view, however, of the reservation as to the opportunity for a further showing on this issue, the entry of judgment in favor of plaintiff for the amount which we have held to be due on its claim, after appropriate offset on account of the counterclaim, is suspended and the Reporter's Statement of the Case case will be referred to a commissioner for the taking of further proof, in the event the parties are unable to agree on the amount due as the balance of the counterclaim. LITTLETON, Judge; GREEN, Judge; and Booтн, Chief Justice, concur. WHALEY, Judge, dissents. COOS (OR KOWES) BAY, LOWER UMPQUA (OR KALAWATSET), AND SIUSLAW INDIAN TRIBES V. THE UNITED STATES [No. K-845. Decided May 2, 1938; plaintiff's motion for new trial overruled November 14, 1938] On the Proofs Indian claims.-The United States having never recognized the plaintiff Indians as the aboriginal owners of the lands claimed, and having consummated no treaty relationship with them, and having recognized no existing rights of property to any specific area of lands to be vested in them, what the United States did with respect to their existing status was done under its plenary authority over tribal Indians, their lands and funds. Evidence.-Oral testimony as to facts and traditions, by witnesses many of whom have a direct interest in the outcome of the case, is insufficient to establish Indian title to a vast acreage of lands; it does not afford a degree of proof sufficient to overcome contemporaneous documentary and historical evidence to the contrary. Same.-An unratified Indian treaty is not evidence of Governmental recognition of Indian title to lands described therein. Same.-Jurisdictional acts merely provide a forum for the presentation and adjudication of Indian cases. Same. The fact that the United States did make treaties with other Indians in the same area falls short of establishing individual title to a described area in an unratified treaty. The Reporter's statement of the case: Mr. T. Hardy Todd for the plaintiffs. Mr. Daniel B. Henderson was on the briefs. Mr. Charles H. Small, with whom was Mr. Assistant Attorney General Carl McFarland, for the defendant. Mr. George T. Stormont was on the brief. Reporter's Statement of the Case The court made special findings of fact as follows: 1. The Act of Congress, approved February 23, 1929, 45 Stat. 1256, as amended by the Act of June 14, 1932, 47 Stat. 307, provides: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred on the Court of Claims to hear, examine, adjudicate, and render final judgment in any and all legal and equitable claims of the Coos (or Kowes) Bay, Lower Umpqua (or Kalawatset), and Siuslaw Indian Tribes of the State of Oregon against the United States arising under or growing out of the original Indian title, claim, or rights of the said tribes (with whom no treaty has been made), in, to, or upon the whole or any part of the lands and their appurtenances occupied by said tribes in 1848 and long prior thereto, and embraced within the following description, to wit: Beginning at a point of rocks, known as Five Mile Point, in section 19, township 27 south of range 14 west of the Willamette meridian, Coos County, Oregon; and running thence north along the coast of Oregon, to the mouth of a creek, known as Ten Mile Creek, in section 27, township 15 south, range 12 west, Lane County, Oregon; thence east on the water shed between the waters of the Alsea and the Siuslaw Rivers to the summit of the Coast Range Mountains in township 15 south, range 6 west; thence in a southeasterly direction along the summit of said mountains, the same being the southwest boundary of the lands ceded by the Calapooia and the Willamette Tribes of Indians to the junction of the Calapooia Range, near the headwaters of the Siuslaw River, in township 21 south, range 4 west; thence in a westerly direction following the summit of the ridge between the waters of the Smith and the Umpqua Rivers, the same being the north boundary of the lands ceded by the Umpqua and the Calapooia Indians, to a point due north of the head of tidewater on the Umpqua River; thence south across the Umpqua River to the summit of the mountains dividing the waters of Camp Creek from the waters of the Umpqua River, the same being the west boundary of the lands ceded by the Umpqua and Calapooia Indians; thence in a southeasterly direction along the summit of the Coast Range Mountains, following the southwest boundary of the lands ceded by the Umpqua and the Calapooia Indians, Reporter's Statement of the Case to the summit of the divide separating the waters of Looking Glass Creek from the waters of the South Fork of Coos River in township 27 south, range 8 west, Douglas County, Oregon; thence west to the point of beginning, which lands and the appurtenances thereunto belonging, including, among other things, claimants' original means of securing a living thereon and therefrom by hunting, fishing, and otherwise, the said tribes claim were taken from them, and appropriated by the United States to its own use, in or about the year 1855, without any treaty cession or agreement, and without compensation to the tribes therefor. Sec. 2. In any suit instituted hereunder the Court of Claims shall have authority to determine and adjudge the rights, both legal and equitable, of the claimants in the premises, notwithstanding lapse of time or statutes of limitation; and the right of appeal to the Supreme Court of the United States is hereby granted to both parties. Sec. 3. The court shall also hear, examine, consider, and adjudicate any claim or claims, including gratuities, which the United States may have against the said tribes properly chargeable in such suit; but any payment or payments which have been made by the United States upon any claim or claims of the tribes shall not operate as an estoppel but may be pleaded by way of set-off; and any other tribes or bands of Indians which the court may deem necessary to a final determination of such suits may be joined therein as the court may order. Sec. 4. If in any suit instituted hereunder for the value of unceded lands taken, sold, or disposed of by the United States it be determined by the court that the Indians are entitled to recover judgment, the price of such lands shall be limited to $1.25 an acre, except as to any tracts that have been actually sold or disposed of under laws enacted by Congress establishing higher prices; in which case the court may be governed by the latter prices. Sec. 5. Any and all claims against the United States within the purview of this act shall be forever barred unless suit be instituted or petition, subject to amendment, filed as herein provided in the Court of Claims within five years from the date of the approval of this Act; and such suit or suits shall make the Coos (Kowes) Bay, Lower Umpqua (Kalawatset), and Siuslaw Tribes of Indians of the State of Oregon party or parties plaintiff and the United States party defendant. Reporter's Statement of the Case The petition shall be verified by the attorney or attorneys employed to prosecute such claim or claims under contract with the Indians approved in accordance with existing law. Official letters, papers, documents, maps and records, or certified copies thereof, may be used in evidence, and the departments of the Government shall give to the attorney or attorneys so employed access to such treaties, papers, maps, correspondence and reports as they may require in the preparation or prosecution of any suit or suits instituted hereunder. Sec. 6. Upon final determination of such suit or suits the Court of Claims shall have jurisdiction to fix and determine a reasonable fee, not to exceed 10 per centum of the recovery, together with all necessary and proper expenses incurred in the preparation and prosecution of such suit or suits, to be paid to the attorney or attorneys employed, as herein provided, by the said tribes, and the same shall be included in the decree, and be paid out of any sum or sums adjudged to be due, the balance to be placed in the Treasury of the United States, to the credit of said tribes, where the money shall draw interest at the rate of 4 per centum per annum until paid and shall be thereafter subject to appropriation by Congress for educational, health, industrial, and other purposes for the benefit of said Indians, including the purchase of lands and building of homes, and no part of said judgment shall be paid out in per capita payments to said Indians. 2. In 1849, shortly after the establishment of the Territory of Oregon, there were reported to be within this territory at least sixty-five tribes and bands of Indians. Thirty tribes or bands lived north of the Columbia River and the remainder south of the Columbia. Practically none of the more than thirty-five tribes or bands living between the Columbia River and the California boundary line in the territory was engaged in agricultural pursuits. Nearly all these so-called Coast Indians subsisted principally upon fish and other sea food, roots, grass seed, berries, and small game. Very few of the Oregon Indians were engaged in labor of any kind. Most of them were friendly with the Whites and well disposed toward each other. Many of these tribes and bands lived on the shores of the Pacific Ocean. In population the tribes and bands in Oregon Territory numbered |