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June 29, 1973

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and the policies by the English IX, Pts. B, C (1958). In addition sovereign which were carried over to specific provisions for rights in by this nation, indicated the nature recognized tribal lands, general legof those rights:

islation in the 1870's and 1880's per

mitted individual Indians to acquire friendly Indians were protected in the possession of the lands they occu

property rights outside Indian pied, and were considered as owning reservations. them by a perpetual right of possession By the Act of March 3, 1875, 43 in the tribe or nation inhabiting them,

U.S.C. § 189 (1970), an Indian who as their common property, from genera

abandoned his tribal relations was tion to generation, not as the right of the individuals located on particular spots.

permitted to make a homestead Subject to this right of possession, the under the homestead laws, which ultimate fee was in the crown and its was to be inalienable for five years. grantees, which could be granted by the

By the Indian Homestead Act of Crown or colonial legislatures while the

July 4, 1884, 43 U.S.C. & 190 (1970), lands remained in possession of the Indians, though possession could not be taken

any Indian who was located on pubwithout their consent.

lic lands at that date or thereafter

"under the direction of the SecreThe Supreme Court in Mitchel set forth the standard for recognizing tary of the Interior, or otherwise, ".

could locate homesteads on public tribal aboriginal rights and the con

lands to the same extent as citizens ditions which would cause nonrec

of the United States, but would reognition:

ceive trust patents—to prevent alieIndian possession or occupation was nation of the property as a means of considered with reference to their habits

protecting his interests. By section 4 and modes of life; their hunting-grounds

of the General Allotment Act of were as much in their actual possession as the cleared fields of the whites; and

February 8, 1887, 25 U.S.C. S$ 334 their rights to its conclusive enjoyment and 336 (1970), allotments to inin their own way and for their own pur- dividual Indians who settled on poses were as much respected, until they

public lands outside of reservations, abandoned them, made a cession to the

or for whose tribe no reservation government, or an authorized sale to individuals. In either case their right be- had been made, and their children, came extinct, the lands could be granted could be made to the extent of 40 disincumbered of the right of occupancy, acres of irrigable land, or 80 acres or enjoyed in full dominion by the pur

of nonirrigable agricultural land, or chasers from the Indians. * * * Id.

160 acres of nonirrigable grazing This recognition of a communal

land to any one Indian. Section 1 or tribal aboriginal occupancy right of that Act, 25 U.S.C. & 331 (1970), led to various provisions in treaties provided for allotments of reservaand statutes for individual Indian

tion lands to individual Indians. rights in tribal property. See U.S. These Acts have been recognized as DEP'T OF THE INTERIOR, manifesting the overall GovernFEDERAL INDIAN LAW, Ch. mental policy that prevailed at that

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time, and for some time after 1900, including the Desert Land Act, as to replace the reservation and com- amended, 43 U.S.C. $ 321 (1970), munal tribal system, to end Indians' was limited to 320 acres. nomadic lifestyle, to encourage in

The Desert Land Act and, to a dividual Indians to integrate into greater degree, later acts required a the cultural structure of the rest of classification of the land by the Govthe nation by owning a parcel of ernment as to the character conland to farm and to take their place templated by the Acts prior to alas independent, qualified members lowance of entries. Thus, in 1909, of the body politic, and to open sur- the Enlarged Homestead Act, 43 plus reservation lands for disposal U.S.C. & 218 (1970), was passed auunder the public land laws. See e.g., thorizing 320-acre homesteads on FEDERAL INDIAN LAW, Ch. nonirrigable, nonmineral land for IX, Pt. C, supra; F. S. COHEN, dry-farming, in Utah and certain U.S. DEP'T OF THE INTE- other western states. In 1916, the RIOR, HANDBOOK OF FED- Stock Raising Homestead Act, 43 ERAL INDIAN LAW, Chs. 2, 11 U.S.C. SS 291-301 (1970), author(1941); Squire v. Capoeman, 351 ized 640-acre homesteads for land U.S. 1 (1956); Hopkins v. United that was "chiefly valuable for grazStates, 414 F.2d 464 (9th Cir. 1969). ing and raising forage crops.”

This policy to transform the com- It was not, however, until the munal Indian property system into Taylor Grazing Act of June 28, a pattern of small individually 1934, 43 U.S.C. $ 315 (1970), that owned farms was during the time the unreserved federal public lands the unreserved federal public lands were regulated by the federal govcould be settled upon and title ac

ernment

for grazing purposes. quired by individuals under laws Prior to that time, generally open, such as the preemption acts and the unreserved public lands could be homestead laws, usually for a maxi- grazed upon without federal intermum of 160 acres (see, e.g., 43 ference or regulation. This historiU.S.C. $ 161 (1970)). Certain im- cal practice of a free and open range provements, acts of occupancy, ap

is illustrated in a Supreme Court plication and proofs were required case arising from the then Territory before a vested right could be recoga

of Utah. Buford v. Houtz, 133 U.S. nized in the settlers. Desert lands 320 (1890). Operators of a cattle could be reclaimed and title ac- ranch whose private lands interquired under the Act of March 3, mingled with federal public lands 1877, 19 Stat. 377, for 640 acres; sought to enjoin sheep grazers from however, by the Act of August 30, trespassing upon their unfenced 1890, 26 Stat. 371, 391, 43 U.S.C. private lands while grazing upon $ 212 (1970), the aggregate quantity the public lands. The Court deswhich any person could acquire un- cribed the right to the public lands der all the agricultural land laws,

as follows:

June 29, 1973

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We are of opinion that there is an im

prohibited anyone from preventing plied license growing out of the custom

or obstructing a settlement made of nearly a hundred years, that the public

under the public land laws. lands of the United States, especially those in which the native grasses are

This summary discussion of some adapted to the growth and fattening of of the general laws illustrates that domestic animals, shall be free to the during much of the time period in people who seek to use them where they

question here, especially from the are left open and unenclosed, and no act

time of the 1868 Treaty until the of government forbids this use. Id. at 326.

Taylor Grazing Act in 1934, there

was a general policy of the federal * Everybody used the open unen

government to encourage settlement closed country, which produced nutritious upon the unreserved public lands grasses, as a public common on which and acquisition of title by individtheir horses, cattle, hogs and sheep could uals, including Indians. However, run and graze. Id. at 327–28.

there were limitations as to the The Court pointed out that unless acreage which could be acquired by an owner of land complied with the any individual under the laws and "fence" law of the various states compliance with the laws was necesand territories, and an animal sary before a right would vest to "breached” the enclosure and in- the lands. See cases cited, infra. At flicted injury, the owner of the ani- the same time, the public lands were mal was not liable to the landowner, considered an open range which and could permit his animals to run could be grazed upon without reguat large without responsibility for lation by the government. Inevittheir getting upon the lands of his ably, as is well known, conflicts over neighbors. Id. The Court also indi- the use of this public land developed cated that the Territory of Utah between settlers and stockmen, behad such a fence statute. See also tween cattle ranchers and sheep Omaechevarria v. Idaho, 246 U.S. grazers, between the Indians and 343 (1918), recognizing certain non-Indians, and also between difregulation by states in exercise of ferent Indian tribes. The evidence their police power to avoid conflicts in this case tends to show aspects of over the range. The Court held a all of these conflicts. state statute did not conflict with the Act of February 25, 1885, 43

The Evidence Generally U.S.C. $$ 1061-1066 (1970). The We now turn from these general 1885 Act forbade enclosures of pub- considerations to the more specific lic land by a person, party, associ- circumstances of this case. ation, or corporation who had no In its first brief presented in conclaim or color of title in good faith, nection with this appeal, the Tribe or a claim made in good faith under contends that the Director comthe general laws of the United pletely ignored or refused to conStates with a view to entry. It also sider the hundreds of exhibits ad

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mitted at the hearing and the tes- stead, they are products having diftimony of some fifty persons. It ferent probative values dependent contends such evidence definitely upon factors such as relevance, establishes that the extension area competency, and credibility. and other areas north of the San The difficulty in constructing a Juan River in Utah were under history of the area based upon the Navajo Indian control, and that archival exhibits submitted by the Navajo Indians lived in that area Tribe was pointed out by the State's and also on the particular sections witness, Dr. C. Gregory Crampton, in question. It submitted a 205 page a professor of history at the Uni"Summary of Evidence,” which the versity of Utah. He stated that only State points out is not directed to a partial history of general moveany specific error on the part of the ment into the general area could be Director, and which it characterizes made and he did not recall docuas "an historical diatribe” presum- ments that pinpoint any Indian acably prepared by one of the Tribe's tivity to the contested sections (Tr. witnesses, David M. Brugge, em- 2199-2201). We find, from reviewployed by the Tribe as an archae- ing the exhibits presented, at most ologist. It is apparent that this only a vague and general picture "Summary of Evidence” is based primarily of United States governprimarily on documentary mate- mental activities and policies relatrials reproduced by the Tribe as ing to the Navajos. Navajo Exhibits Nos. 100 to 633 The archival materials generally and to a much lesser extent upon show increasing discontent by the the oral testimony of Navajo wit- Navajos with their reservation nesses and other evidence presented boundaries as the increase in their by the Tribe.

population, as well as of their herds We find no merit to the Tribe's of sheep, goats, and horses (and incontention that in making the deci- frequently some cattle as well), sion below, the exhibits and testi- created problems for them. Recommony were not considered. The mendations to increase the reservaDirector generally summarized the tion boundaries reflect the need for types of evidence presented. In dis- additional grazing lands to support cussing the facts he referred to some the major base of their economy, exhibits and to some of the testi- sheep grazing, and to remove mony. Omissions of reference to sources of conflict with whites who particular exhibits or testimony in objected to Indians leaving their this case do not signify a failure to reservation to graze their stock. consider them.

Many of the complaints by whites Exhibits and oral testimony in an made to military and Indian Office administrative hearing are not fun- officials concerning Navajos outside gibles where evidentiary value is

the reservation relate to their grazascribed on a quantum basis. In- ing on public lands also grazed

June 29, 1973

case.

upon by white stockmen. Other tion for the Navajo people was complaints relate to alleged depre- created. For our purposes, this dations from murder, to petty theft, reservation may generally be deto ranging their stock through farm scribed as rectangular in shape, with lands of the whites.

a northern boundary on the line beAlthough many of the exhibits tween what is now the states of refer to movement of the Navajos

Utah and Colorado and Arizona north of the San Juan River, only a and New Mexico in the Four Corfew of these exhibits may be spe- ners area. The western boundary cifically related to the area north of was a parallel of longitude about the river in Utah. Much of the ma- 109° 30' west, provided it embraced terial referring to Navajos north of the outlet of "Canon-de-Chilly" (15 the San Juan appears to pertain to

Stat. 668). The northern boundary the more populous area in New remained unchanged until the Mexico, especially prior to 1900. Executive Order of May 17, 1884, Thus, this material is not relevant established it as the San Juan River. to the situation in Utah, except to As indicated, the San Juan River show a pattern of expansion by was the northern boundary in Utah Navajos from areas where they were in 1900, the most crucial date in this confined following the 1868 Treaty, and to show federal administrative Information concerning the peopolicies toward them.

ples who have inhabited the general Many of the documents are in- Four Corners area begins with the complete by themselves as they refer prehistoric Anasazis. They are of to other documents or to enclosures interest in this case because of their which are not a part of this record. ruins and artifacts. Around 1300 While much that is stated in the A.D., the Anasazis (ancestors of Tribe's summary of evidence re- some of the Pueblo Indians) left flects matters shown by the exhibits the area and ancestors of the presthere is also reference to some ex- ent-day Utes and Paiutes moved hibits which were withdrawn and into the area. The Navajos, an are not a part of the record, and Athapascan linguistic group, moved many inferences stated in the sum- from the north into the southmary are simply not supported by western part of the United States the exhibits and other evidence in sometimes around 1200 to 1500 A.D. the record.

Historical information concerning

the Navajos in the southwestern Pre-1868 Indian Occupancy of the

states begins in the 17th century Area

A.D. where mention is made of them

at the headwaters of the San Juan The first time period of significance in this case concerns the period River in Colorado (Tr. 2179). prior to the 1868 Treaty with the Until 1848, the southwestern area Tribe, when a permanent reserva

with which we are concerned was

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