June 29, 1973 and the policies by the English sovereign which were carried over by this nation, indicated the nature of those rights: friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the crown and its grantees, which could be granted by the Crown or colonial legislatures while the lands remained in possession of the Indians, though possession could not be taken without their consent. The Supreme Court in Mitchel set forth the standard for recognizing tribal aboriginal rights and the conditions which would cause nonrecognition: Indian possession or occupation was considered with reference to their habits and modes of life; their hunting-grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its conclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case their right became extinct, the lands could be granted disincumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. * * * Id. This recognition of a communal or tribal aboriginal occupancy right led to various provisions in treaties and statutes for individual Indian rights in tribal property. See U.S. DEP'T OF THE INTERIOR, FEDERAL INDIAN LAW, Ch. IX, Pts. B, C (1958). In addition to specific provisions for rights in recognized tribal lands, general legislation in the 1870's and 1880's permitted individual Indians to acquire property rights outside Indian reservations. By the Act of March 3, 1875, 43 U.S.C. § 189 (1970), an Indian who abandoned his tribal relations was permitted to make a homestead under the homestead laws, which was to be inalienable for five years. By the Indian Homestead Act of July 4, 1884, 43 U.S.C. § 190 (1970), any Indian who was located on public lands at that date or thereafter "under the direction of the Secre tary of the Interior, or otherwise,” could locate homesteads on public lands to the same extent as citizens of the United States, but would receive trust patents-to prevent alienation of the property as a means of protecting his interests. By section 4 of the General Allotment Act of February 8, 1887, 25 U.S.C. §§ 334 and 336 (1970), allotments to individual Indians who settled on public lands outside of reservations, or for whose tribe no reservation had been made, and their children, could be made to the extent of 40 acres of irrigable land, or 80 acres of nonirrigable agricultural land, or 160 acres of nonirrigable grazing land to any one Indian. Section 1 of that Act, 25 U.S.C. § 331 (1970), provided for allotments of reservation lands to individual Indians. These Acts have been recognized as manifesting the overall Governmental policy that prevailed at that time, and for some time after 1900, to replace the reservation and communal tribal system, to end Indians' nomadic lifestyle, to encourage individual Indians to integrate into the cultural structure of the rest of the nation by owning a parcel of land to farm and to take their place as independent, qualified members of the body politic, and to open surplus reservation lands for disposal under the public land laws. See e.g., FEDERAL INDIAN LAW, Ch. IX, Pt. C, supra; F. S. COHEN, U.S. DEPT OF THE INTERIOR, HANDBOOK OF FEDERAL INDIAN LAW, Chs. 2, 11 (1941); Squire v. Capoeman, 351 U.S. 1 (1956); Hopkins v. United States, 414 F.2d 464 (9th Cir. 1969). This policy to transform the communal Indian property system into a pattern of small individually owned farms was during the time the unreserved federal public lands could be settled upon and title acquired by individuals under laws such as the preemption acts and the homestead laws, usually for a maximum of 160 acres (see, e.g., 43 U.S.C. § 161 (1970)). Certain improvements, acts of occupancy, application and proofs were required before a vested right could be recognized in the settlers. Desert lands could be reclaimed and title acquired under the Act of March 3, 1877, 19 Stat. 377, for 640 acres; however, by the Act of August 30, 1890, 26 Stat. 371, 391, 43 U.S.C. § 212 (1970), the aggregate quantity which any person could acquire under all the agricultural land laws, including the Desert Land Act, as amended, 43 U.S.C. § 321 (1970), was limited to 320 acres. The Desert Land Act and, to a greater degree, later acts required a classification of the land by the Government as to the character contemplated by the Acts prior to allowance of entries. Thus, in 1909, the Enlarged Homestead Act, 43 U.S.C. § 218 (1970), was passed authorizing 320-acre homesteads on nonirrigable, nonmineral land for dry-farming, in Utah and certain other western states. In 1916, the Stock Raising Homestead Act, 43 U.S.C. §§ 291-301 (1970), authorized 640-acre homesteads for land that was "chiefly valuable for grazing and raising forage crops." It was not, however, until the Taylor Grazing Act of June 28, 1934, 43 U.S.C. § 315 (1970), that the unreserved federal public lands were regulated by the federal government for grazing purposes. Prior to that time, generally open, unreserved public lands could be grazed upon without federal interference or regulation. This historical practice of a free and open range is illustrated in a Supreme Court case arising from the then Territory of Utah. Buford v. Houtz, 133 U.S. 320 (1890). Operators of a cattle ranch whose private lands intermingled with federal public lands sought to enjoin sheep grazers from trespassing upon their unfenced private lands while grazing upon the public lands. The Court described the right to the public lands as follows: June 29, 1973 We are of opinion that there is an implied license growing out of the custom of nearly a hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed, and no act of government forbids this use. Id. at 326. Everybody used the open unenclosed country, which produced nutritious grasses, as a public common on which their horses, cattle, hogs and sheep could run and graze. Id. at 327-28. The Court pointed out that unless an owner of land complied with the "fence" law of the various states and territories, and an animal "breached" the enclosure and inflicted injury, the owner of the animal was not liable to the landowner, and could permit his animals to run at large without responsibility for their getting upon the lands of his neighbors. Id. The Court also indicated that the Territory of Utah had such a fence statute. See also Omaechevarria v. Idaho, 246 U.S. 343 (1918), recognizing certain regulation by states in exercise of their police power to avoid conflicts over the range. The Court held a state statute did not conflict with the Act of February 25, 1885, 43 U.S.C. §§ 1061-1066 (1970). The 1885 Act forbade enclosures of public land by a person, party, association, or corporation who had no claim or color of title in good faith, or a claim made in good faith under the general laws of the United States with a view to entry. It also prohibited anyone from preventing or obstructing a settlement made under the public land laws. This summary discussion of some of the general laws illustrates that during much of the time period in question here, especially from the time of the 1868 Treaty until the Taylor Grazing Act in 1934, there was a general policy of the federal government to encourage settlement upon the unreserved public lands and acquisition of title by individuals, including Indians. However, there were limitations as to the acreage which could be acquired by any individual under the laws and compliance with the laws was necessary before a right would vest to the lands. See cases cited, infra. At the same time, the public lands were considered an open range which could be grazed upon without regulation by the government. Inevitably, as is well known, conflicts over the use of this public land developed between settlers and stockmen, between cattle ranchers and sheep grazers, between the Indians and non-Indians, and also between different Indian tribes. The evidence in this case tends to show aspects of all of these conflicts. The Evidence Generally We now turn from these general considerations to the more specific circumstances of this case. In its first brief presented in connection with this appeal, the Tribe contends that the Director completely ignored or refused to consider the hundreds of exhibits ad mitted at the hearing and the testimony of some fifty persons. It contends such evidence definitely establishes that the extension area and other areas north of the San Juan River in Utah were under Navajo Indian control, and that Navajo Indians lived in that area and also on the particular sections in question. It submitted a 205 page "Summary of Evidence," which the State points out is not directed to any specific error on the part of the Director, and which it characterizes as "an historical diatribe" presumably prepared by one of the Tribe's witnesses, David M. Brugge, employed by the Tribe as an archaeologist. It is apparent that this "Summary of Evidence" is based primarily on documentary materials reproduced by the Tribe as Navajo Exhibits Nos. 100 to 633 and to a much lesser extent upon the oral testimony of Navajo witnesses and other evidence presented by the Tribe. We find no merit to the Tribe's contention that in making the decision below, the exhibits and testimony were not considered. The Director generally summarized the types of evidence presented. In discussing the facts he referred to some exhibits and to some of the testimony. Omissions of reference to particular exhibits or testimony in this case do not signify a failure to consider them. Exhibits and oral testimony in an administrative hearing are not fungibles where evidentiary value is ascribed on a quantum basis. In stead, they are products having different probative values dependent upon factors such as relevance, competency, and credibility. The difficulty in constructing a history of the area based upon the archival exhibits submitted by the Tribe was pointed out by the State's witness, Dr. C. Gregory Crampton, a professor of history at the University of Utah. He stated that only a partial history of general movement into the general area could be made and he did not recall documents that pinpoint any Indian activity to the contested sections (Tr. 2199-2201). We find, from reviewing the exhibits presented, at most only a vague and general picture primarily of United States governmental activities and policies relating to the Navajos. The archival materials generally show increasing discontent by the Navajos with their reservation boundaries as the increase in their population, as well as of their herds of sheep, goats, and horses (and infrequently some cattle as well), created problems for them. Recommendations to increase the reservation boundaries reflect the need for additional grazing lands to support the major base of their economy, sheep grazing, and to remove sources of conflict with whites who objected to Indians leaving their reservation to graze their stock. Many of the complaints by whites made to military and Indian Office officials concerning Navajos outside the reservation relate to their grazing on public lands also grazed June 29, 1973 upon by white stockmen. Other complaints relate to alleged depredations from murder, to petty theft, to ranging their stock through farm lands of the whites. Although many of the exhibits refer to movement of the Navajos north of the San Juan River, only a few of these exhibits may be specifically related to the area north of the river in Utah. Much of the material referring to Navajos north of the San Juan appears to pertain to the more populous area in New Mexico, especially prior to 1900. Thus, this material is not relevant to the situation in Utah, except to show a pattern of expansion by Navajos from areas where they were confined following the 1868 Treaty, and to show federal administrative policies toward them. Many of the documents are incomplete by themselves as they refer to other documents or to enclosures which are not a part of this record. While much that is stated in the Tribe's summary of evidence reflects matters shown by the exhibits there is also reference to some exhibits which were withdrawn and are not a part of the record, and many inferences stated in the summary are simply not supported by the exhibits and other evidence in the record. Pre-1868 Indian Occupancy of the Area The first time period of significance in this case concerns the period prior to the 1868 Treaty with the Tribe, when a permanent reserva tion for the Navajo people was created. For our purposes, this reservation may generally be described as rectangular in shape, with a northern boundary on the line between what is now the states of Utah and Colorado and Arizona and New Mexico in the Four Corners area. The western boundary was a parallel of longitude about 109° 30′ west, provided it embraced the outlet of "Canon-de-Chilly" (15 Stat. 668). The northern boundary remained unchanged until the Executive Order of May 17, 1884, established it as the San Juan River. As indicated, the San Juan River was the northern boundary in Utah in 1900, the most crucial date in this case. Information concerning the peoples who have inhabited the general Four Corners area begins with the prehistoric Anasazis. They are of interest in this case because of their ruins and artifacts. Around 1300 A.D., the Anasazis (ancestors of some of the Pueblo Indians) left the area and ancestors of the present-day Utes and Paiutes moved into the area. The Navajos, an Athapascan linguistic group, moved from the north into the southwestern part of the United States sometimes around 1200 to 1500 A.D. Historical information concerning the Navajos in the southwestern states begins in the 17th century A.D. where mention is made of them at the headwaters of the San Juan River in Colorado (Tr. 2179). Until 1848, the southwestern area with which we are concerned was |