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June 29, 1973

Grants Statutory Construction: Generally

To determine whether any Indian occupancy by Navajos outside their recognized reservation boundaries was recognized by the Utah Enabling Act of 1894 so as to prevent the operation of the grant of lands for school purposes to the State, the intent of Congress must be ascertained by reading the provisions of the grant and the disclaimer of lands "owned or held by any Indian or Indian tribes" together, by considering the usual meaning of the words, by determining the overall purpose of the Act, and by considering the provisions in accordance with the historical milieu and public policy of that time, as well as any court interpretations of other statutes.

Statutory Construction: Generally— Words and Phrases

The word "held" as used in statutes in relation to land often means "owned," but as there is no fixed primary or technical meaning, its meaning must be determined by the context in which it is used to ascertain the legislative intent.

Act of May 17, 1884 (Alaska Organic Act)-Act of July 16, 1894 (Utah Enabling Act)—Alaska: Indian and Native Affairs-Indians: Generally— Statutory Construction: Generally

Historical differences between the situation in Alaska and the other states afford reasons for different interpretations of legislation pertaining to Alaska natives and legislation pertaining to Indians in the other states. Therefore, section 8 of the Act of May 17, 1884, regarding the occupancy of Alaska natives and others upon public land, is not in pari materia with the disclaimer provision in section 3 of the Utah Enabling Act of 1894, as to lands "owned or held by any Indian or Indian Tribes."

Indian Lands: Aboriginal Title

The standard used to determine the extent of an Indian tribe's aboriginal occupancy is whether the tribe occupied a defined area to the exclusion of other tribes.

Indian Lands: Aboriginal TitleSchool Lands: Grants of Land-State Grants-Withdrawals and Reservations: Effect of

Where Indian aboriginal rights are terminated by abandonment or relinquishment by a treaty with the United States, a state may take a grant of lands unencumbered by any occupancy claims in the Indians, and where the state's title has vested, subsequent action by Congress setting the lands apart as a reservation for the Indians cannot affect the state's title. However, if a reservation has been created prior to the grant, the state's title cannot vest until the reservation is extinguished.

Indian Allotments of Public Domain: Generally Settlements on Public Lands-School Lands: Generally

Although the school land grant to the State of Utah was subject to existing inchoate settlement claims, including any by individual Indians outside their reservation, if the claims were not perfected, the State's title to the lands vested.

Homesteads (Ordinary): Generally— Indian Allotments on Public Domain: Generally-Settlements on Public Lands Statutory Construction: Generally

The Indian Homestead Acts and section 4 of the General Allotment Act are settlement acts within the framework of other setlement laws pertaining to the public lands, and the practice, rules and decisions regarding white settlers on the pub

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The Acts of March 1, 1933, adding "vacant, unreserved, and undisposed of" public lands to the Navajo reservation, and of September 2, 1958, declaring lands within the exterior boundaries of the Navajo reservation in trust for the Navajo Tribe, "subject to valid existing rights," did not affect the existing title of the State of Utah in school sections which had vested in the State in 1900 when surveys were approved including the sections.

Act of July 16, 1894 (Utah Enabling Act)-Indian Lands: GenerallySchool Lands: Generally-School Lands: Particular States-Statutory Construction: Generally

By the Utah Enabling Act of 1894, Congress did not intend the grant of school lands to the State of Utah, effective upon survey in 1900, to be held in abeyance as to unreserved public lands which may have been within a wide, undefined perimeter of use by a proportionately few Navajo families outside their reservation grazing flocks of sheep with transitory encampments in an area also used by nonIndians for grazing purposes and wandered over by Indians from other tribes. Federal Employees and Officers: Authority to Bind Government-Indian Lands: Generally-School Lands: Generally

Where lands were not withdrawn for Indians, any express or implied consent by Indian Office officials to Navajos grazing sheep on public lands outside their reservation boundaries where no claim to the land was made under section 4 of the

General Allotment Act and the lands were recognized by such officials and other government officials as public lands, rather than Indian lands, could not create Indian tribal occupancy rights to such lands superior to the Congressional grant to the State of Utah for school lands, and the State took an unencumbered fee simple title to such sections.

APPEARANCES ON APPEAL: Bruce E. Babbitt, Esq., Brown, Vlassis & Bain, Phoenix, Arizona; John H. Schuelke, Esq., Gallup, New Mexico; for the Navajo Tribe. Vernon B. Romney, Esq., Attorney General, State of Utah; Gerald R. Miller, Esq.; Denis R. Morrill, Esq.; Special Counsel, for the State of Utah.

OPINION BY

MRS. THOMPSON INTERIOR BOARD OF LAND APPEALS

The appeal in this case is the culmination of extensive proceedings within this Department arising from an application filed by the State of Utah (hereafter referred to as the "State") on June 10, 1958, for a confirmatory patent to two school sections lying within the exterior boundaries of the extension of the Navajo Reservation added by the Act of March 1, 1933, 47 Stat. 1418 (hereafter called the Aneth or the 1933 extension). The Navajo Tribe of Indians (hereafter referred to as the "Tribe") protested against the issuance of the patent to the State. Its protest was dismissed by the Salt Lake Land Office, and that dismissal was affirmed by the Acting Director, Bureau of Land Management, on September 23,

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1960. The Bureau's dismissal was set aside by decision of the Solicitor, 72 I.D. 361 (1965), who remanded the case for a hearing on the Tribe's protest. The hearing was presided over by Administrative Law Judge John R. Rampton, Jr.1 and sessions were held in Cortez and Fort Morgan, Colorado, and Monticello and Salt Lake City, Utah.2 A recommended decision by Judge Rampton was adopted with only minor changes by decision of the Director, Bureau of Land Management, dated August 15, 1969, which dismissed the Tribe's protest and ordered issuance of the confirmatory patents to the State for the two sections in question. The Tribe has appealed from this decision.

Pursuant to a motion of the Tribe and order of this Board, oral argument by counsel of the Tribe and the State was heard by this panel on April 21, 1972.

The State's application for patent was made under the Act of June 21, 1934, 43 U.S.C. § 871a (1970), which directs the Secretary of the Interior, upon application by a state, to issue patents to numbered school sections

1 The title of the hearing officer has been changed from "Hearing Examiner" to "Administrative Law Judge" pursuant to order of the Secretary of the Interior, 38 F.R. 10939 (May 3, 1973).

2 At the hearing the Tribe was represented by Norman L. Littel, Esq., Washington, D.C., then General Counsel of the Tribe, and John H. Schuelke, Esq. The State of Utah was represented by Phil L. Hansen, Esq., then Attorney General for the State of Utah (on the briefs only), Gerald R. Miller, Esq., and F. S. Prince, Esq., Special Counsel.

The oral argument in behalf of the Tribe was made by John H. Schuelke, Esq., and Bruce E. Babbitt, Esq., and in behalf of the State by Gerald R. Miller, Esq.

in place showing "the date when title vested in the State and the extent to which the lands are subject to prior conditions, limitations, easements, or rights, if any."

Where this Department has a statutory duty to issue a patent or other evidence of title to a claimant, including a state, there is authority to determine questions of law as well as fact incident to performance of that duty. West v. Standard Oil Co., 278 U.S. 200, 220 (1928). This includes a determination as to whether title passed under the grant to a state. Margaret Scharf, 57 I.D. 348 (1941). The Act of June 24, 1934, is not a new grant of title to a state. The issuance of the patent authorized by the Act is simply evidence of title which has already vested. Id.

The two sections in question are section 16, T. 40 S., R. 24 E., S.B.M., Utah (hereafter referred to as the Montezuma Creek section), and section 16, T. 40 S., R. 26 E., S.B.M., Utah (hereafter referred to as the McElmo Creek section). They are both in a remote desert area of southeastern Utah in San Juan County, north of the San Juan River. Official survey plats including these sections were accepted on May 1, 1900 (State Exhibits (Exs.) 23, 25; Navajo Tribe (Nav.) Ex. 61-0). The sections are numbered school sections granted to the State by section 6 of the Utah Enabling Act of July 16, 1894, 28 Stat. 109. Title to school sections would vest in the State upon the date of Statehood (January 4, 1896), or upon completion and acceptance of the survey of

the sections if the lands were not then surveyed. 43 CFR 2623.1; State of Utah, v. Braffet, 49 L.D. 212 (1922). Thus, presumptively, title to the sections vested in the State on May 1, 1900, when the surveys were approved.*

The basic position of the Tribe is that title could not vest in the State on May 1, 1900, or thereafter, because the sections were occupied by individual Navajo Indians or by the Tribe in a tribal capacity and this

We note that the Supreme Court held that the Utah school grant did not include lands which were known to be mineral in character when they were surveyed. United States v. Sweet, 245 U.S. 563 (1918). However, by the Act of January 25, 1927, as amended, 43 U.S.C. $ 870 (1970), Congress extended the school grants of numbered sections in place to include such sections which were mineral in character unless indemnity or lieu land had been previously selected in lieu of the sections, and excepted sections subject to or included in any valid application, claim, or right initiated or held under any of the existing laws of the United States, unless or until such reservation, application, claim, or right is extinguished, relinquished, or canceled. This Act and the Act of June 21, 1934, are thoroughly discussd in Margaret Scharf, which points out that until the contrary is clearly shown, there is a very strong presumption that land granted to a state for school purposes was of the character contemplated by the grant, insofar as its then known mineral or nonmineral character was concerned. 57 I.D. 348, 356-57. In this case there has been no assertion and no evidence which would clearly establish that the land in question here was known to be mineral in character in 1900 when the surveys were approved so as to effectuate any change in the date title presumptively passed to the State of Utah. There was testimony by a witness of the State, Neil F. Stull, that in the 1920's the lands in the area were not even considered as having prospective value for oil. As an employee of the Department of the Interior in the 1920's he investigated Indian allotments in the area to determine if the lands in the applications were mineral or nonmineral in character (Tr. 1122-30).

The fieldnotes of the 1900 survey of the two townships stated there were no indications of mineral within the township except "a vein of coal underlays the mesa along the N. bdy" of T. 40 S., R. 26 E. (State Exs. 23 and 25).

occupancy had the legal effect of precluding the grant of these two sections to the State. Throughout these proceedings the Tribe has offered various legal theories to support this basic thrust. These will be discussed further, infra.

The Solicitor ordered the hearing to receive "all the facts pertaining to occupancy which may be relevant." In reviewing the lengthy evidentiary record, we note that the Judge admitted most of the evidence offered by both parties at the hearing.5

Summary of Type of Evidence

The type of evidence submitted at the hearing is detailed in the Director's decision as follows:

[T]he Tribe presented testimony from numerous elderly Navajo Indians. These people, unlettered, unable to speak the English language and requiring interpreters, testified that they had lived on or near the school lands in question or that they had known of Navajo friends and relatives, now dead, who had lived on or near the sections involved. In support of the general proposition that, since before the beginning of recorded history, the Navajo people have resided and lived in the area known as the Aneth extension of the Navajo Reservation north of the San Juan River, the Navajo Tribe introduced voluminous exhibits which fall into five main categories, as follows:

1. Ancient documents from the National Archives, including maps dated from 1716, diaries and reports of early explorers, military reports, reports of Indian agents to the Commissioner of In

The hearing record is voluminous consisting of a transcript of 2,230 pages covering testimony of some 64 witnesses, with approximately 750 numbered exhibits containing thousands of separate documents.

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dian Affairs, Indian allotment papers and homestead papers.

2. Technical data such as survey plats, population surveys, aerial photos, and genealogy studies and charts.

3. Published reports and analyses by historians, ethnologists, and anthropologists.

4. Archaeological reports, site photos and descriptive sheets.

5. Portions of the transcript in the case of Bill Hatahley et al. v. United States of America, in the United States District Court for the District of Utah, Civil No. C-36-53 (Nav. Ex.'s 59-59A), and in the proceedings before the Indian Claims Commission, Navajo Tribe of Indians et al., Petitioners v. U.S.A., Defendant, Docket No. 229.

Foundation testimony for the archaeological reports was given by two anthropologists employed by the Navajo Tribe and by a member of the Navajo Tribe who has participated in the preparation of the site reports. Foundation testimony for the hospital records and the census reports was given by members of the Navajo Tribe and by officers of the Bureau of Indian Affairs.

In rebuttal, the State of Utah called as witnesses elderly members of the Ute Tribe of Indians who, like the elderly Navajos, were unable to speak English and required interpreters. These people and their ancestors had also lived and roamed throughout the Aneth extension area. Testimony was also given by elderly white men who had run stock in the area involved, by traders to the Indians, and by a retired employee of the Department of the Interior, a geologist who had examined the Indian allotments in Townships 39 and 40 South, San Juan County, Utah.

For a specific rebuttal of the methods used by the Navajo Tribe archaeologist in examining the numerous sites reported as Navajo and the reliability of the archaeological site reports, the State called as a witness an assistant research professor in anthropology at the University of Utah who, using material furnished to him by

the Navajo Tribe, resurveyed many of the sites written up in the Navajo reports.

Summary of Director's Findings and Conclusions

The Director's decision discusses in some length evidence concerning the general background and history of the Navajo people and their occupancy in the southwestern United States; general Navajo occupancy of the area added to the Navajo reservation by the 1933 extension; occupancy by individual Navajos with respect to each of the sections in question which lie within that extension; and other general historical information of that area. The decision then discusses the contentions of the Tribe in support of its protest against the patent to the State relating the law concerning the protection of Indian rights generally; individual Indian occupancy rights; aboriginal tribal rights of possession; the effect of the 1868 Treaty of the Tribe with the United States, 15 Stat. 667; the effect of the Utah Enabling Act; and the standing of the Tribe to protest the State's application.

Essentially, the Director found that there was no occupancy by individual Navajos upon the disputed sections until after May 1, 1900, that the area of occupancy judged with respect to the mode of life of the Navajo was vague and indeterminate, and that there was not exclusive occupancy by the Navajos nor was dominion over the area asserted by them. Further, it found there was not sufficient tribal

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