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0033J5 elusion, however salutary generally, begin to offend the appearance of justice when a party admits that his op- ponent received less than a full measure of justice before the Court and cannot now remedy the situation by modifying the original decree. This aspect of fairness holds particular importance in the present case. I would be more reluctant to allow the United States to relitigate a matter that concerned only its own interests. In this case, however, the Tribes would bear the burden of this injustice. During the earlier proceedings they 'were not parties. The United States as trustee or guardian represented them. See 25 U.S.C. i 175 (1976). They had no opportunity to pre- sent their case. This fact represents a compelling rea- son for the Court to exercise its power to correct what otherwise would be a serious error in defining their rights. In my view Article IX should be used in this case as an instrument of justice to give the Tribes what rightly belongs to them. That provision clearly reserves such power for the Court and this matter con- stitl,ltes sufficient good reason to risk upsetting whatever reliance may have been based upon the Court's prior conclusions. My 'recommendation draws additional support from my reading of the record of the prior hearings in this case. I believe that the "omission" of a significant amount of factually supportable claims clearly oc- curred in the earlier proceedings. Although the United States lawyers at the earlier trial presented substantial claims for the Tribes, these claims fell short of the maximum possible claims under the standards re- quired by the prior Master. In a paternalistic sense the result obtained by the United States might seem fair because the Tribes received much-needed water rights. But the trustee's duty is not to decide what is fair, his 48 duty is to present the best case for his Indian wards. An objective view of the facts reveals that actual fair- neas was not achieved in the sense that under the legal standards applied in this case the Tribes would have received more if the United States as Q'ustee had dedi- cated its efforts to maximizing the Tribes' welfare.~1 The indications of this occurrence can readily be located in the transcript of the prior proceedings." Us- ing a Cew examples, an expert engineering witness Cor the United States during the earlier proceeding re- I vealed during cross-examination that the United States had mistakenly Cailed to include all irrigable land in its claims.at This witness also offered various 57. United States counsel represented that he wos presenting claims that were "fair" to the Indians and "fair" to everyone elae. Pro Tr. 12471. As trustee the United States wos obligated to assert IIl8Iimum claims, not merely claima that it believed were "fair. n This duty wos recognized by counsel later. Pr. Tr. 12564. But tbe inference remains that the United States wos too concerned about fairness to the othar partiea. 58. See. e.g., Pro Tr. 14113-19, 14150-57. 59. Pr. Tr. 14151-53. One might argue that irrigable is not necessarily the same os practicably irrigable. The initial line of questioning began with the suggestion that irrigable meant arable on the basis of lOil claaai- fication. Pro Tr. 14150. But the context of tha testimony fcrecloaea such an argument. The witneu would never have described his failure to in. clude thoee Ianda os a factual mistake if be was not using the word irrica- ble to mean Janda that were practicably irricable, in the eenae that the then-daimed Ianda were practicably irricabJe. Ill. Moreover, both the ",,- aminer and witneu stated later that they used the word irricable to mean feasible to irrigate. See Pro Tr. 14152-53, 14214. This diacuaaiOD was premised upon the _t that the United States accounted for ec0- nomic feasibility in ita cIaima, .ee Pr. Tr. 14119-25. Thus it would have been nODAellllical for the witn... to have used the word irrig.hIe without regard to practicahility. The witn.... thus, muet have ID88IIt "practicahly irricablen when he used the word "irricahle. n ' In order to present all the facta, I must state that this witneaa Jeter testified that he did not make a "mistake. n This retraction occurred only after the Master and the United States counsel redefined "practicably irrigable" to mean land served by .:liating or than-proposed irrigation " 49