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June 29, 1973

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.

Grants—Statutory Construction: Generally To determine whether any Indian occupancy by Navajos outside their recognized reservation boundaries was recog. nized 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.

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.

Statutory Construction: GenerallyWords 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: GenerallyStatutory Construction: Generally

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): GenerallyIndian 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 public lands have been applied to them with certain reasonable modifications taking into account Indian habits, character, and disposition.

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."


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.

Indian Lands: Generally—Indian Lands: Tribal Lands—School Lands: Generally_School Lands: Particular States

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.

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.




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.

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,

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

June 29, 1973


1960. The Bureau's dismissal was set in place showing "the date when aside by decision of the Solicitor, 72 title vested in the State and the exI.D. 361 (1965), who remanded the tent to which the lands are subject to case for a hearing on the Tribe's prior conditions, limitations, easeprotest. The hearing was presided ments, or rights, if any." over by Administrative Law Judge Where this Department has a John R. Rampton, Jr.? and sessions statutory duty to issue a patent or were held in Cortez and Fort Mor- other evidence of title to a claimant, gan, Colorado, and Monticello and including a state, there is authority Salt Lake City, Utah.? A recom- to determine questions of law as well mended decision by Judge Ramp- as fact incident to performance of ton was adopted with only minor that duty. West v. Standard Oil Co., changes by decision of the Director, 278 U.S. 200, 220 (1928). This inBureau of Land Management, dated cludes a determination as to whether August 15, 1969, which dismissed title passed under the grant to a the Tribe's protest and ordered issu- state. Margaret Scharf, 57 I.D. 348 ance of the confirmatory patents to (1941). The Act of June 24, 1934, is the State for the two sections in not a new grant of title to a state. question. The Tribe has appealed The issuance of the patent authorfrom this decision.

ized by the Act is simply evidence of Pursuant to a motion of the title which has already vested. Id. Tribe and order of this Board, oral The two sections in question are argument by counsel of the Tribe section 16, T. 40 S., R. 24 E., S.B.M., and the State : was heard by this Utah (hereafter referred to as the panel on April 21, 1972.

Montezuma Creek section), and secThe State's application for patent tion 16, T. 40 S., R. 26 E., S.B.M., was made under the Act of June 21, Utah (hereafter referred to as the 1934, 43 U.S.C. & 871a (1970), which McElmo Creek section). They are directs the Secretary of the Interior,

both in a remote desert area of upon application by a state, to issue southeastern Utah in San Juan patents to numbered school sections County, north of the San Juan

River. Official survey plats includ1 The title of the hearing officer has been

ing these sections were accepted on changed from "Hearing Examiner" to “Administrative Law Judge" pursuant to order of May 1, 1900 (State Exhibits (Exs.) the Secretary of the Interior, 38 F.R. 10939 (May 3, 1973).

23, 25; Navajo Tribe (Nav.) Ex. : At the hearing the Tribe was represented

61-0). The sections are numbered by Norman L. Littel, Esq., Washington, D.C., then General Counsel of the Tribe, and John

school sections granted to the State H. Schuelke, Esq. The State of Utah was by section 6 of the Utah Enabling represented by Phil L. Hansen, Esq., then Attorney General for the State of Utah (on

Act of July 16, 1894, 28 Stat. 109. the briefs only), Gerald R. Miller, Esq., and Title to school sections would vest in F. S. Prince, Esq., Special Counsel.

The oral argument in behalf of the Tribe the State upon the date of Statehood was made by John H. Schuelke, Esq., and (January 4, 1896), or upon compleBruce E. Babbitt, Esq., and in behalf of the State by Gerald R. Miller, Esq.

tion and acceptance of the survey of


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the sections if the lands were not occupancy had the legal effect of then surveyed. 43 CFR 2623.1; State precluding the grant of these two of Utah, v. Braffet, 49 L.D. 212 sections to the State. Throughout (1922). Thus, presumptively, title these proceedings the Tribe has ofto the sections vested in the State on fered various legal theories to supMay 1, 1900, when the surveys were port this basic thrust. These will be approved.*

discussed further, infra. The basic position of the Tribe is The Solicitor ordered the hearing that title could not vest in the State to receive "all the facts pertaining on May 1, 1900, or thereafter, be

to occupancy which may be relecause the sections were occupied by vant.” In reviewing the lengthy eviindividual Navajo Indians or by the dentiary record, we note that the Tribe in a tribal capacity and this Judge admitted most of the evi

dence offered by both parties at the * We note that the Supreme Court held that the Utah school grant did not include lands hearing." which were known to be mineral in character when they were surveyed. United States v. Sweet, 245 U.S. 563 (1918). However, by the Summary of Type of Evidence Act of January 25, 1927, as amended, 43 U.S.C. § 870 (1970), Congress extended the school The type of evidence submitted at grants of numbered sections in place to include such sections which were mineral in

the hearing is detailed in the Di. character unless indemnity or lleu land had rector's decision as follows: been previously selected in lieu of the sections, and excepted sections subject to or included in

[T]he Tribe presented testimony from any valid application, claim, or right initiated

numerous elderly Navajo Indians. These or held under any of the existing laws of the United States, unless or until such reserva

people, unlettered, unable to speak the tion, application, claim, or right is extin- English language and requiring inter. guished, relinquished, or canceled. This Act and

preters, testified that they had lived on the Act of June 21, 1934, are thoroughly

or near the school lands in question or discussd in Margaret Scharf, which points out that until the contrary is clearly shown, there

that they had known of Navajo friends is a very strong presumption that land granted and relatives, now dead, who had lived on to a state for school purposes was of the or near the sections involved. In support character contemplated by the grant, insofar

of the general proposition that, since beas its then known mineral or nonmineral character was concerned. 57 I.D. 348, 356-57.

fore the beginning of recorded history, In this case there has been no assertion the Navajo people have resided and lived and no evidence which would clearly estab- in the area known as the Aneth extension lish that the land in question here was known

of the Navajo Reservation north of the to be mineral in character in 1900 when the surveys were approved so as to effectuate any

San Juan River, the Navajo Tribe introchange in the date title presumptively passed duced voluminous exhibits which fall into

the State of Utah. There was testimony five main categories, as follows: by a witness of the State, Neil F. Stull, that

1. Ancient documents from the Nain the 1920's the lands in the area were not eren considered as having prospective value for

tional Archives, including maps dated oil. As an employee of the Department of the from 1716, diaries and reports of early Interior in the 1920's he Investigated Indian

explorers, military reports, reports of Inallotments in the area to determine if the lands in the applications were mineral or

dian agents to the Commissioner of Innonmineral in character (Tr. 1122-30).

The fieldnotes of the 1900 survey of the two 5 The hearing record is voluminous consisttownships stated there were no indications of ing of a transcript of 2,230 pages covering mineral within the township except "a vein of testimony of some 64 witnesses, with approx. coal underlays the mesa along the N. bdy" of imately 750 numbered exhibits containing T. 40 S., R. 26 E. (State Exs. 23 and 25). thousands of separate documents.


June 29, 1973

dian Affairs, Indian allotment papers the Navajo Tribe, resurveyed many of the and homestead papers.

sites written up in the Navajo reports. 2. Technical data such as survey plats, population surveys, aerial photos, and Summary of Director's Findings genealogy studies and charts.

and Conclusions 3. Published reports and analyses by historians, ethnologists, and anthropolo The Director's decision discusses gists.

in some length evidence concerning 4. Archaeological reports, site photos and descriptive sheets.

the general background and history 5. Portions of the transcript in the of the Navajo people and their oc(ase of Bill Hatahley et al. v. United cupancy in the southwestern United States of America, in the United States States; general Navajo occupancy District Court for the District of Utah,

of the area added to the Navajo Civil No. C-36–53 (Nav. Ex.'s 59-59A), and in the proceedings before the Indian

reservation by the 1933 extension; Claims Commission, Navajo Tribe of In- occupancy by individual Navajos dians et al., Petitioners v. U.S.A., De- with respect to each of the sections fendant, Docket No. 229.

in question which lie within that exFoundation testimony for the archaeo

tension; and other general historilogical reports was given by two anthropologists employed by the Navajo Tribe

cal information of that area. The and by a member of the Navajo Tribe who

decision then discusses the contenhas participated in the preparation of the tions of the Tribe in support of its site reports. Foundation testimony for the

protest against the patent to the hospital records and the census reports

State relating the law concerning was given by members of the Navajo Tribe and by officers of the Bureau of In

the protection of Indian rights gendian Affairs.

erally; individual Indian occupancy In rebuttal, the State of Utah called rights; aboriginal tribal rights of as witnesses elderly members of the Ute

possession; the effect of the 1868 Tribe of Indians who, like the elderly

Treaty of the Tribe with the United Navajos, were unable to speak English

States, 15 Stat. 667; the effect of and required interpreters. These people and their ancestors had also lived and

the Utah Enabling Act; and the roamed throughout the Aneth extension standing of the Tribe to protest the area. Testimony was also given by el- State's application. derly white men who had run stock in the area involved, by traders to the In

Essentially, the Director found dians, and by a retired employee of the

that there was no occupancy by Department of the Interior, a geologist individual Navajos upon the diswho had examined the Indian allotments

puted sections until after May 1, in Townships 39 and 40 South, San Juan

1900, that the area of occupancy County, Utah.

For a specific rebuttal of the methods judged with respect to the mode of used by the Navajo Tribe archaeologist in

life of the Navajo was vague and examining the numerous sites reported as indeterminate, and that there was Navajo and the reliability of the archaeo- not exclusive occupancy by the logical site reports, the State called as a

Navajos nor was dominion over the witness an assistant research professor in anthropology at the University of Utah

area asserted by them. Further, it who, using material furnished to him by found there was not sufficient tribal

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