Opinion of the Court The commission in its report stated that the values of the land and timber included in the award met the legal requirements of the act of May 23, 1908, but excluded equitable consideration of the following items set out in the report of the preliminary committee: 1. Mature pine timber on 18 parcels of land reserved within the national forest totalling 44,333 feet board measure, which could not be sold and for which provision should be made to pay the Indians, of the minimum value of--- 2. 90% of merchantable white and Norway pine timber on certain tracts included in the forest reserve which had erroneously been classified as “agricultural lands," aggregating 2,114,000 feet board measure, for which provision should be made for the proper advertisement and sale in order that the proceeds could be placed to the credit of the Indians, of the value of__ 3. By reason of the long delay in settlement, the Indians had lost interest at the rate of 5% per annum for approximately 14 years on the value of 190,944.93 acres included in the reserve, and on the 5 and 10% of the merchantable pine timber standing on that portion of the 190,944.93 acres outside of the 10 sections, islands, and points, and recommended that remedial legislation be obtained from Congress allowing interest on said deferred payments, and which interest the commission found aggregated-- 4. Merchantable white and Norway pine, less than 10" in diameter and jack pine, and hardwoods having a well defined and commercial value at the time of the appraisal, standing on that portion of the 190,944.93 acres outside of the 10 sections, islands and points, the value of which the commission recommended should be determined by careful estimate and appraisal and remedial legislation requested of Congress to pay the Indians therefor, and which value on the basis of superficial estimates and appraisals made by the commission, it fixed at approximately---. $183. 17 20,000.00 402,755. 84 1,060, 887.70 By the act of February 28, 1925, 43 Stat. 1052, Congress authorized the appropriation of the sum of $422,939.01 in full payment of the foregoing items 1, 2, and 3, and that Opinion of the Court amount was subsequently appropriated and credited to the plaintiffs' interest bearing trust fund in the Treasury of the United States, together with interest thereon from February 1, 1923, to May 26, 1926. No provision, however, was made by Congress for the payment of item 4, $1,060,887.70, the estimated value as of the date of the appraisal of the white and Norway pines under ten inches in diameter and jack pine and hardwoods, and plaintiffs have at no time been compensated in respect to such timber. This item constitutes plaintiffs' first claim herein. It is conceded by the defendant that the timber in question had a value of the amount claimed at the time the lands and other timber included in the award were appraised by the commission under the act of May 23, 1908, and at the time the appraisal became final on the approval of the President, April 9, 1923. The act of May 14, 1926, vests the court with jurisdiction to hear and render judgment "in any and all legal and equitable claims arising under or growing out of the act of January 14, 1889 (25 Stat. L. 642), or arising under or growing out of any subsequent act of Congress in relation to Indian Affairs which said Chippewa Indians of Minnesota may have against the United States." Section 4 of the act provides that "If it be determined by the court that the United States * * * has unlawfully appropriated or disposed of any money or other property belonging to the Indians, damages therefor shall be confined to the value of the money or other property at the time of such appropriation or disposal, together with interest "The plaintiffs contend that the lands and timber included in the national forest created by the act of May 23, 1908, were appropriated by the United States on April 9, 1923, the date on which the President approved the appraisals and award made by the commission appointed under the terms of that act, which they contend is the date fixed in the act upon which the lands and timber actually became a part of the national forest. Plaintiffs' contention that the lands and timber included in the national forest were appropriated by the defendant and actually became a part of the national forest on April 9, 1923, is based solely on the provisions of section 5 of the act of 1908, which reads: Opinion of the Court That all moneys received from the sale of timber from any of the lands set aside by this Act for a National Forest, prior to the appraisal herein provided for, including all moneys received for timber under sales made by the Secretary of the Interior as authorized by existing laws and section two of this Act, shall be placed to the credit of the Chippewa Indians in the State of Minnesota, as provided for in an Act of Congress entitled "An Act for the relief and civilization of the Chippewa Indians in the State of Minnesota," approved January fourteenth, eighteen hundred and eighty-nine; and the Acts supplementary thereto, and shall draw interest at the rate of five per centum per annum, pursuant to the terms of said Acts; and after said appraisal the National Forest hereby created, as above described, shall be subject to all general laws and regulations from time to time governing national forests, so far as said laws and regulations may be applicable thereto. We do not think the language of section 5 is susceptible to the construction plaintiffs place upon it. In the first place, the section uses the words, "the lands set aside by this Act as a national forest," and also, "the national forest hereby created." These words, as well as the words employed in section 1 of the act, "That there is hereby created in the State of Minnesota a national forest consisting of lands and territory described as follows: *"are of the present tense and in the absence of other language in the act showing a contrary intent impel the conclusion that it was the intention of Congress to appropriate the lands included in the national forest and the timber growing thereon as of the date of the act, May 23, 1908, and not at some subsequent date. That this was the intention of Congress was further and, we think, conclusively shown by the fact that Congress provided for the payment of back interest for a period of 14 years on the 1908 value of the lands and the reserved merchantable pine. This action of Congress can not be explained or justified on any theory other than that Congress construed the act of May 23, 1908, as having effected an appropriation or taking of plaintiffs' property as of the date of its approval. When section 5 is read in connection with section 2 of the 1908 act which authorizes the Secretary of the Interior to proceed with the sale of certain of the merchant Opinion of the Court able pine timber on the lands included in the national forest, the provision that the moneys received for timber under sales made prior to the appraisal provided for in the act, shall be placed to the credit of the Chippewa Indians of Minnesota as provided for in the act of January 14, 1889, is in no way inconsistent with the view that the lands included in the national forest were appropriated by the United States and became Federal property in 1908. The Indians were entitled to payment for the value of the merchantable pine timber taken and it was immaterial whether made through sales or through an award after appraisal. The last clause has to do solely with the administration of the national forest, after the appraisal of the lands and timber provided for in the act has been made. Here again words of the present tense are used-"the national forest hereby created as above described." By no process of reasoning can the provision that the national forest created by the act of 1908 shall be subject to all general laws and regulations after the appraisal therein authorized had been made, be construed as establishing the date of the approval of the appraisal as the date of the taking or appropriation of plaintiffs' lands and timber. The repeated expressions of Congress, made in the present tense, must be construed as showing the intention of Congress to create a national forest as of the date of the act of May 23, 1908, and this was necessarily the date of the appropriation of plaintiffs' land and the timber thereon. The property consisting of the lands and timber thereon included in the national forest was appropriated by the United States on May 23, 1908. Under the jurisdictional act the measure of plaintiffs' recovery is limited to the value of such lands and timber on the date of their appropriation. It is established in the record that the type of timber embraced in plaintiffs' first claim, white and Norway pine less than 10 inches in diameter, jack pine, poplar, white birch, yellow birch, oak, basswood, ash, elm, spruce, tamarack, balsam, and cedar, had no merchantable value on May 23, 1908. The appraisal commission in a report to the Commissioner of Indian Affairs said in respect to this timber: Opinion of the Court In his opinion of January 19, 1922, the Solicitor for the Department of Agriculture held that the use of the term "merchantable pine timber," in relation to lands other than the ten sections, islands and points, showed a clear intention on the part of Congress to allow the Indians compensation only for timber reserved from cutting which was merchantable at the time of the passage of the said Act of 1908. Since the preponderance of evidence was to the effect that the white and Norway pine under 10 inches in diameter, and jack pine and hardwoods of all diameters was not commonly regarded as merchantable in 1908, it was the belief of the said Solicitor that no allowance should be made for such classes of timber in determining the amounts to be paid to the Indians. The Solicitor of the Department of the Interior concurred in this view. Because of these opinions the Commission in determining the amounts due the Indians excluded from their appraisal all such timber standing upon lands cut over under the Acts of 1902 and 1908. The Commission finds, however, that these classes of timber now possess well-defined and considerable commercial value, which as a matter of equity should be recognized by the Government; and, therefore, recommends that Congress be asked to enact legislation authorizing the appraisal of said timber and proper payment to the Indians therefor. The volume and the exact value of such timber have not been determined by careful estimate and appraisal; but superficial estimates and appraisals conducted jointly by representatives of the Indian Service and of the Forest Service during the fall of 1922, resulted in finding the value thereof to be approximately $1,060,887.70. The plaintiffs and the defendant are now in substantial agreement that the estimated value placed on this timber by the commission was its approximate value on April 9, 1923, the date on which the President approved the appraisal and award of the commission. Since the timber involved in this claim had no merchantable value on the date plaintiffs' lands and property were appropriated, May 23, 1908, it is immaterial what value it may have had fourteen years later. The defendant was required to account to plaintiffs for the value of the timber at the time it was appropriated by the United States, and having had no ascertainable market value at that time, it is clear that plaintiffs are not entitled to |