Central Utah Project Litigation Documents

Page 80

the.very question was in issue and resolved by the finding of gradual encroachment and taking. The approval by the Commission in its order of February 11, 1966, of the stipulation date agreed to by the parties as the evaluation date for the Nevada lands was a c% ten .-."*. net ion that the stipulated date was acceptable. If the date had bciwi; vs?fffir tp the plaintiff, the Commission would not have approved it. Where, as in this case, there was no single clearcut extinguishment of Indian title as of one date or even a few dates certain, and the extin­guishment was by gradual encroachment over a considerable period of time, it has been customary to rely on a composite or average date for the purpose of valuing the lands. This eliminates the cost and delay in considering every single taking date or disposition of land. As Judge Nichols recently noted in a case which involved the use of an "average date" of extinguishment for the purpose of valuing aboriginal title lands of the Northern Paiute Indians in Nevada, ". . . . The Commission previously had asked the parties to try to agree on an 'average date*. 7 I.C.C. at 419. Such a legal shortcut is often necessary in Indian claims litigation, if it is ever to be concluded, and has the sanction of the Supreme Court." United States v. Northern Paiute Nation, 203 Ct. CI. 468, 473; 490 F. 2d 954, 957 (1974), rev' g.r_Oi^_other grounds Docket 87-A, 28 Ind. Cl. Comm. 256 (1972). See Creek Nation v. United States, 302 U.S. 620 (193S). The Court of Claims has also held that the Commission has discretion to select an average "taking date" for valuation purposes for all lands where the "raking" extended over a number of years, but that it: is not bound to do so. 2Jn*f:'! Affiliated Tribes of lorl )'.-. vlbold K»\\:.rva t ion v.'Vn" *'«.••; Ei.:t-S, To2 Ct .