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occupation of the area to establish tribal possession. In any event, it held that tribal claims to the land were barred by virtue of the 1868 Treaty of the Tribe with the United States. It held the Tribe did not have standing to protest the State's application, as any occupancy by individual Indians in 1900 sufficient to bar the State's grant would also be protected and prevent the Tribe's claim to the land under the Aneth extension Act of March 1, 1933, adding "vacant, unreserved, and undisposed of public lands," and the Act of September 2, 1958, 72 Stat. 1686, declaring lands within the exterior boundaries of the reservation subject to "valid existing rights" to be in trust for the Tribe.

Significant Geographical Features

The evidence in this case is related to certain geographical features. In 1900, the most significant date in this case, the northern boundary of the Navajo reservation in Utah and in New Mexico, was the San Juan River. That boundary was established by Executive Order of May 17, 1884. The San Juan River from its headwaters in southern Colorado runs through a portion of northeast New Mexico, then cuts across a small portion of Colorado near the Four Corners area of Utah-Arizona-Colorado-New Mexico. It then flows in double hairpin turns northwesterly then southwesterly then northwesterly and then southwesterly again until it reaches its mouth in the Colorado River in southern Utah. In addition to the

San Juan River the two main drainage courses within the 1933 extension are the McElmo and Montezuma Creeks which flow through the easterly and westerly portions of the 1933 extension area, respectively, southerly to their mouths in the San Juan River. Portions of those creeks flow through the subject sections which are identified by reference to them. North and west of the Montezuma section is an area called McCracken Mesa, mentioned as a favorite grazing range of the Navajos. This was added to the reservation by the Act of September 2, 1958 (72 Stat. 1686). Outside the reservation, in townships west of the 1933 extension and flowing from the north are Recapture Creek (its mouth in the San Juan River is in T. 22 E., R. 40 S.), and Cottonwood Creek (its mouth is in T. 21 E., R. 40 S.). Near the mouth of Cottonwood creek at the San Juan River is the Mormon settlement of Bluff founded in 1880 (Tr. 1779). Four townships north and one township east of Bluff is the town of Bland

ing first settled in 1905 (Tr. 1781). Three townships north and one township east of Blanding is the town of Monticello. West of Monticello is a mountain range called the Abajo or Blue Mountains. In the southern part of that range and southwest of Blanding is a moun

The use of the word "flow" is to describe the bed of these creeks or washes. In this dry desert climate during dry spells often no water would actually flow through these creeks, while during spring runoffs and unusually heavy rains the torrents of water would cause some changes in the stream-flow configuration and flooding.

June 29, 1973

tain called Bears Ears. Other significant water courses include Mancos Creek with its mouth in the San Juan in New Mexico very near the Four Corners. The rest of the creek is within the State of Colorado, most of it within the southern Ute Reservation. Chinle Creek or Wash meanders from northern Arizona to the San Juan River in Utah, a township west of Bluff.

The Tribe and the State in this appeal have referred to findings and conclusions by the Indian Claims Commission in a proceeding brought by the Tribe against the United States (Docket No. 229) under the Indian Claims Commission Act, 25 U.S.C. § 70 et seq. (1970). By its Interlocutory Order of June 29, 1970 (23 Ind. Cl. Comm. 244), the Commission found that on July 25, 1868, the Navajo Tribe held aboriginal title to a large tract of land which includes lands in Utah beginning at the intersection of the Colorado and San Juan Rivers "thence on a line northeasterly to Bears Ears; thence easterly to Blanding, Utah, thence southeasterly to Cortez, Colorado ***” except for certain lands in Spanish or Mexican grants (Finding 17, 23 Ind. Cl. Comm. 272). The Commission also concluded as a matter of law that as of July 25, 1868, the effective date of the Navajo Treaty of July 1, 1868 (15 Stat. 667), the Tribe ceded its aboriginal title

lands to the United States under the 1868 Treaty, except for the area specifically reserved to the Tribe under Article 2 of the Treaty. The Tribe

points out that the sections involved here are within the area found by the Commission to be aboriginal lands of the Tribe, whereas the State points to the Commission's conclusions that the Tribe ceded its aboriginal title to such lands by the 1868 Treaty.

For informational purposes, we have taken official notice of these findings and conclusions of the Commission and of its order for further proceedings to determine the acreage of the lands ceded by the Tribe, its fair market value as of July 25, 1868, and other matters relative to the determination of the extent of the liability of the United States to the Tribe. We note that the Commission's order is not a final order and is, therefore, not a final determination of the issues involved in that proceeding and will not become so until a final order is issued and any possible court appeals are concluded.

In addition to the fact the Commission's ruling is not a final determination, the State was not a party in that proceeding and, therefore, no factual findings in that case could bind the State. Our findings and conclusions in this controversy between the Tribe and the State rest

solely upon our review of the evidence presented at the hearing in this case and such additional specific evidentiary matters as may be noted

in this decision of which official notice has been taken, and upon our own understanding and application of the law to the facts shown.

Summary of Legal Theories

or

cepting lands "reserved *** otherwise disposed of." The Tribe contended that by applying that holding here the school sections were excepted from Utah's grant by the provision in section 6 of the Enabling Act (28 Stat. 109) relating to lands "otherwise disposed of," as they were lands occupied by Navajo Indians prior to the school grant.

The Tribe further contended that in considering the occupancy by the individual Indians the standard is to view the Indian possession and use with reference to the habits and modes of life of the particular Indian involved. The Navajos principally grazed livestock, conducted small farming operations, and hunted and gathered other foods from wild sources for their livelihood. Therefore, the control of

A brief review of the legal theories presented by the Tribe is necessary to set the discussion of the facts in proper perspective. The case went to hearing on the issues as they were formulated and briefly outlined in the Solicitor's decision at 72 I.D. 361 (1965) and as discussed by the Director in his decision. Essentially the Tribe contended as follows: Protection of Occupancy rights in individual Indians, as well as Indian Tribes, is a matter of federal governmental policy and recognized in the Supreme Court decision, Cramer v. United States, 261 U.S. 219 (1923). Occupancy by individual Indians would be sufficient to prevent the grant of school sections to a State, citing Schumacher v. State of Washington, 33 L.D. 454 (1905). These occupancy rights by individual Indians were independent of and in addition to any rights of a Tribe to lands within reservations established for the Tribe. The policy of protecting occupancy rights of individual Indians is reflected in the Utah Enabling Act where in paragraph 2 of section 3 of that Act right by virtue of the inclusion of

(28 Stat. 107, 108), the State disclaimed any claim to lands "owned or held by any Indian or Indian Tribes." The Tribe pointed out that the Supreme Court in Cramer, supra, referred to this disclaimer provision to support its position that the occupancy of individual Indians in that case prior to a grant to a railroad caused such lands to be within the provision in the grant ex

land by a Navajo was by the protec

tion and care of his livestock com

parable to the way a livestock man controls an area to protect his grazing even though he may not actually live on each acre.

The Tribe's original position was that such individual occupancy and control were translated into a tribal

these sections in the area added to the reservation by the 1933 extension and by virtue of section 1(d) of the Act of September 2, 1958 (72 Stat. 1686, 1687), which provided that "all public lands of the United States within said exterior boundaries of said reservation are hereby declared to be held in trust for the benefit of the Navajo Tribe of Indians."

June 29, 1973

The State, in response, contended that the type of occupancy by the Navajos was not the type protected in the Cramer and Schumacher decisions, supra, but if it were, it pointed out that the 1933 extension added only "vacant, unreserved, and undisposed of public lands" (47 Stat. 1418). Also, the 1958 Act provided that the declaration of trust for the Navajo Tribe was "subject to valid existing rights." (72 Stat. 1687.) It contended, therefore, that any occupancy of the school sections suflicient to preclude the grant to the State would also create rights in the individuals under the provisions sufficient to except the lands from those Acts. Thus, it argued, only such individual Indians, not the Tribe, would have standing to challenge the State's title.

The Director agreed with the State on the issue of standing, concluding that only individuals who allegedly occupied the sections in 1900 or their descendants might have standing to protest. Specifically, he stated that the Tribe was not bringing the action to protect any individual Indian occupant's own home from any oppressor, but instead was asserting such occupancy "for its own purposes as a means of defeating the State's title and thereby gaining valuable assets for the Tribe."

The Tribe originally also implied that there was tribal aboriginal occupancy of the area but did not emphasize this point. In the present appeal, the Tribe in its first brief

repeats its contentions concerning individual occupancy as precluding the vesting of the State's grant. In a supplemental brief and again in its reply to the State's brief in answer to that brief, the Tribe emphasizes an additional position to that expressed previously. The Tribe now contends that regardless of the effect of its Treaty of 1868, the Tribe has rights to these lands not based on its tribal aboriginal occupancy of the area but by virtue of the disclaimer in the Utah Enabling Act of any lands "owned or held by any Indian or Indian Tribes." In effect, it interprets this Act as preventing the grant to the State of lands "held" by tribal occupancy. As to the test of occupancy necessary to establish lands "held" by the Tribe, it suggests the standard be the area which was "essential to the livelihood" of the Indians as judged by the natural environment and lifestyle of the individual Indian or Indian tribe in question, with limitations as to whether the use and occupation is sufficiently intensive and continuous. It derives this suggested standard from its interpretation of cases primarily dealing with the Alaskan natives.

The State contends essentially that the Utah Enabling Act created no rights in the Tribe as to lands in Utah because tribal rights had been extinguished, but that assuming, arguendo, such rights existed, the evidence found by the trial examiner would not support the Tribe's claim under the tests laid down in cases cited by the Tribe.

Issues

This brief skeletal framework of the most basic contentions of the Tribe and State points to the most significant issues in this case, namely:

1. What was the effect of the 1868 Treaty of the Tribe with respect to tribal and individual Indian rights to the lands in question?

2. Were rights to these lands preserved or created in individual Indians or the Navajo Tribe by the Utah Enabling Act?

3. What was the effect of the 1933 and 1958 Acts upon the status of the sections?

4. Does the Navajo Tribe have standing to challenge the State's patent application?

5. If occupancy by Indians could prevent the State's title from vesting, what standard governs the adequacy of the occupancy?

6. Does the evidence in this case es

history of the people in the area, is a consideration of the manifested governmental policy, as the Tribe's contentions in large part rest upon the effect of the Utah Enabling Act and upon the federal government policy to protect occupancy of Indians. See the discussion regarding statutory construction, infra.

Summary of General Indian and

Related Public Land Law

The dates of the pertinent statutes, court and administrative decisions, and governmental administrative actions toward the Navajos, are important in relation to the historical milieu out of which they arose. Although a history of the Government's policies toward Indians generally would be of encyclo

tablish there was sufficient occupancy by pedic breadth and beyond the scope

individual Indians or the Navajo Tribe under the proper standard to preclude the grant to the State?

These essential issues will be discussed, infra, not necessarily separately or in the above order, as their resolution requires a consideration of the statutes involved and the facts concerning Navajo occupancy generally in the context of the historical setting as well as it can be adduced from the record. This entails a consideration of facts concerning other peoples in the area, the Mormon settlers and other whites (primarily stockmen, a few traders, missionaries and miners), and other Indian groups, especially the Utes and Paiutes (or as also spelled, Piutes). Inseparably intertwined with these facts as to the

of this decision, highlights of some of the general policies shall be briefly noted as they are part of this milieu. It must suffice to state that prior to the creation of this nation, the European nations claimed title to the lands now in these United States by right of "discovery" under basic principles of international law, but subject to occupancy rights of the aboriginal inhabitants, the Indians. See U.S. DEPT OF THE INTERIOR, FEDERAL INDIAN LAW 18 (1958). This served as the foundation for this Government's recognition of Indians' rights of occupancy. One of the landmark cases, Mitchel v. United States, 11 U.S. (9 Pet.) 539, 559 (1835), discussing the aboriginal occupancy rights of Indian tribes

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