Rich, Nichols, and Bennett, Circuit Judges.
These consolidated cases are before the court on appeal from a judgment*fn* of the United States Claims Court dismissing the petitions of the Wichita Tribe and its affiliated bands and groups for compensation from the United States for the taking of lands held by aboriginal title. In his recommended decision, Senior Trial Judge Mastin G. White concluded that when the United States acquired sovereignty over the lands in Kansas, Oklahoma, and Texas (in 1803, 1803, and 1845, respectively), the Wichitas did not hold aboriginal title to any portion of these lands. Neither the parties nor the trial judge dispute the fact that at some earlier dates the Wichitas had held aboriginal title to various tracts of the claimed lands. The sole issue we are to decide is whether the Wichitas had lost such title to all their lands prior to the times United States sovereignty attached. We hold in Part III of this opinion that the Wichitas did retain aboriginal title to some of these lands. Although the trial judge's decision is undoubtedly correct as applied to substantial parts of the claimed area, his own findings of fact seem to acknowledge that, at the least, the Wichitas held aboriginal title to land in the Spanish Fort area around the Red River in Oklahoma from well before to well after 1803. The record is devoid of evidence to support the conclusion that they were without aboriginal title to any lands on the relevant dates. We therefore reverse and remand these cases to the Claims Court for a determination of the extent of aboriginal title and the extent of liability of the United States, if any, for land to which the claimants had such title.
Appellants originally brought their claims in two administrative proceedings before the Indian Claims Commission pursuant to a special jurisdictional act approved March 21, 1978 (Pub. L. No. 95-247; 92 Stat. 158). This act authorized them to file claims out of time against the United States under the provisions of the Indian Claims Commission Act (60 Stat. 1049; 25 U.S.C. § 70a), for lands taken without adequate compensation. The March 21, 1978, jurisdictional act grouped the affiliated Wichita, Keechi, Tawakonie, and Waco bands under the rubric, "Wichita Indian Tribe" (hereinafter "Wichitas"), treating them as a single claimant and providing that "no affiliated band or group may bring a claim not held in common with the Wichita Indian Tribe." (Pub. L. No. 95-247; 92 Stat. 158).
The Indian Claims Commission later transferred the two proceedings to the United States Court of Claims for final disposition under the authority of the Act of October 8, 1976 (90 Stat. 1990; 25 U.S.C. § 70v). Upon filing, the trial division of the Court of Claims consolidated the cases for the purpose of trial and ultimate disposition. After trial, the trial judge dismissed the Wichitas' petitions on the grounds that they had lost aboriginal title to their village sites and adjacent cultivated areas by abandonment before the United States became responsible in the premises by enlargement of its territories, and had failed to establish aboriginal title at any point to all other land involved in the litigation. Because he based his ruling on these grounds, the trial judge was not required to delineate the area of the land, or to assess the role, if any, the United States played in the taking, or to establish a taking date. Although we reject the conclusion that the Wichitas failed to establish their claim of aboriginal title to any lands, we intimate no view regarding the precise dimensions of the land to which the Wichitas did hold aboriginal title or regarding the nature and date of the taking.
B. The Migration of the Wichita Tribes
Appellants are the present day remnants of the Wichita Confederacy, a group of confederated Indian bands that, together, constituted one of the major branches of the Caddoan linguistic family. Up until about 1800, the principal bands comprising the Wichita Confederacy were the Wichita (proper), the Taovaya, the Tawakonie, the Yscani, and the Kichai. The Yscani disappeared as a distinct band in about 1800, and the Taovaya also disappeared as a distinct band later in the 19th century, having been assimilated into the Wichita (proper).
In about 1820, the Waco band was first reported as a distinct band forming part of the Wichita Confederacy. The Waco may have been an offshoot of the Tawakonie band, although some scholars believe that the term "Waco" was merely another designation for the band previously known as the Yscani.
The Wichitas were Southern Plains Indians who, for centuries, had used and occupied vast areas of land in Kansas and Oklahoma. During the 16th, 17th, and 18th centuries, the Wichitas began migrating south through Oklahoma and into Texas. The Kichais, however, were not involved in this southern movement, for they were indigenous to Texas and only joined the Wichita Confederacy after this movement was underway. The life-style of all the Wichita bands was the same. For more than half the year they lived in permanent villages surrounded by extensive, cultivated fields. During the late fall and winter, they departed the villages en masse and lived in tepees and camps, from which they went out on hunts. Before joining the Confederacy, the Kichais usually hunted in the region between the Brazos and Red Rivers in Texas; the rest of the Wichitas hunted in the Southern Plains area in Kansas and Oklahoma.
Villages were sometimes clustered and sometimes scattered over large areas. Because the Wichitas produced a surplus of agricultural products and maintained permanent villages, they carried on trade with a variety of nomadic tribes as well as white traders. Over years, however, these villages separated and coalesced. The Wichitas in Kansas and Oklahoma began shifting their villages south, so that by the end of the 18th century, the Wichitas had no villages in Kansas, and by 1803, they had only two villages in southern Oklahoma. These two villages were located in the Spanish Fort area on the north bank of the Red River. In addition to these two villages, several other Wichita villages were located on the Texas side of the Spanish Fort area at this time. Although the Wichitas located their remaining villages in central and north Texas, many of them continued to hunt in Kansas and Oklahoma. Others hunted in western Texas. Non-Wichita tribes evidently hunted on the same general hunting grounds in Texas, Oklahoma, and Kansas. All but the Osage, a tribe hostile to the Wichitas, had established trading relationships with the Wichitas. The Osage, however, did not regularly hunt south of the Canadian River in Oklahoma.
The United States first became responsible respecting the Wichitas as to Kansas and Oklahoma, by the Louisiana Purchase in 1803 and as to Texas, by the annexation of that country in 1845. The supposed ...