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Spanish and then Mexican territory. and moved into hiding in remote areas

. Copies of some ancient maps and such as the canyon country near Navajo

Mountain. The Fort Sumner confinement documents of Spanish and Mexican

and military campaigns very probably derivation were presented as exhib

account for much of the initial movement its. An historical expert, witness for of the Navajos north toward the San Juan the State, praised the historical ac- River (Tr. 2180). curacy of the Miera Map of 1778 of

Most of the archival material dealthe Dominques-Escalante expedi- ing with the Four Corners area and tion (State Ex. 39) as showing the Navajo "country" after the United Navajos south of the Rio de Nava

States acquired it is found in milijos, identified as the San Juan River tary reports and in reports of In(Tr. 2190–94), and the Utes located

dian Agents and the Indian Office. north of the river. He indicated that

The Gunnison map of 1855 (Nav another map (Nav. Ex. 100) could

Ex. 125) shows the Navajos as north not be accepted as accurate without

of the San Juan River. The word more source data to support it (Tr. “Navajo” is written between the 2193–96). Another map, the Urre

110°30' to 109°30', parallels of lontuia Map of 1769 (Nav. Ex. 105), gitude, which area is west of the had no supporting explanatory Aneth area. Other material prior foundation support and is suscepti

to 1868 could only inferentially, at ble to some interpretation, but it has best, place the Navajos in the Aneth the word “Navajo” written below

area, and does not show exclusive the river and Provincia de” above

occupancy by the Navajos. For exthe river. The witness identified the ample, a letter of May 1, 1851, from Chuska Mountain area of Arizona

the New Mexico Agent Calhoun and New Mexico as the heartland re

(Nav. Ex. 116), states that the gion of the Navajos (Tr. 2179).

Navajos have or are removing from The United States acquired the "Chinle” to the Rio San Juan and Mexican territory in 1848 by the pitching their lodges on both sides Treaty of Guadalupe Hidalgo, 9

of the river, and indicating that on Stat. 922. The Director summarized

the north side of the river, they must some of the events following that mix with the Utahs (Utes). Navajo acquisition, which led to the 1868 Ex. 127, a War Department reNavajo Treaty:

port of November 23, 1858, states * * * difficulties arose between the

that the Utahs killed 10 Navajos on Navajo and the white settlers and re- the San Juan north of Carrissa sulted in several military operations Mountain. which consummated in the Kit Carson

In other reports it is not evident campaign of the 1860's (Tr. 2179). It was Carson's objective to remove the Navajos

that the area north of the San Juan from the area. This he partly accom- River pertained to the area in New plished in 1864 when perhaps half of the

Mexico and Colorado or Utah. For Navajos were marched to Fort Sumner

example, a report of May 7, 1852 in New Mexico and were there confined. Some of the Navajos escaped this fate (Nav. Ex. 120), indicated that the

June 29, 1973

Navajos were moving north to the there had been aboriginal occupancy San Juan because they were afraid by the Tribe prior to 1868, the Tribe of Apaches. Likewise, a report of relinquished all right to occupy the July 21, 1853 (Nav. Ex. 121), stated territory outside the reservation by that Navajo criminals had gone

the 1868 Treaty. north of the San Juan where there

Effect of 1868 Navajo Treaty were many disaffected Utahs. Further reports of “thieves" or "bad" The Tribe makes no argument Navajos being north of the San

concerning the effect of the 1868 Juan are found in Nav. Ex. 130. Treaty upon its aboriginal tribal That some Navajos from the San rights. It had previously alleged Juan area surrendered to the mili- that it did not matter whether the tary to go to Fort Sumner follow

occupancy was considered as being ing Kit Carson's campaign is re- in the individual Indians or as tribal flected in Nav. Exs. 134 and 135.

occupancy. The Tribe's most recent There was evidence that some theory repudiates any significance Navajos may have hidden in the

to the Treaty because it asserts southeastern part of Utah and other tribal rights derived from the southwestern part of Colorado dur- Utah Enabling Act and governing Kit Carson's campaign and mental policy apart from its abonever went to Fort Sumner. There riginal rights. is insufficient evidence in the entire Nevertheless, the effect of the record, including the testimony of Utah Enabling Act and of governwitnesses and archaeological site re- mental policy must be considered in ports, however, to establish specific relation to the Treaty. The Direcoccupancy by such Indians and their tor's decision quotes from portions descendants on these particular sec- of the Treaty. We need only reemtions of land at that time and prior phasize that by Article IX of the to 1900.

Treaty, the Tribe, through its The Director found generally representatives, expressly relinthat the facts did not establish suffi- quished all right to occupy any tercient tribal possession of the area to ritory outside of the designated establish occupancy of the area in reservation area, except for retainquestion. He concluded that prior to ing the right to hunt on any unocthe 1920's the area was a "no man's cupied lands contiguous to their land" used and shared by white reservation (15 Stat. 669, 670). By stockmen and traders, a few bands Article XIII, the Tribal representaof renegade Utes fleeing from con- tives agreed to make the "reservafinement of their Colorado reserva- tion their permanent home, and they tion, and some Navajo families will not as a tribe make any perseeking pasturage for their live- manent settlement elsewhere, reservstock. However, in addition to this ing the right to hunt on the lands finding, he ruled, in effect, that if adjoining the said reservation

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formerly called theirs." The Tribal States, supra. The extinguishment representatives also agreed to do all of tribal aboriginal rights to lands they could to induce Indians away outside of established reservations from the reservation, "leading a has been recognized in more recent nomadic life, or engaged in war, to times. United States v. Santa Fe abandon such life and settle per- Pacific Ry.Co., 314 U.S. 339 (1941). manently in a reservation. It was A special three-judge Federal Disagreed that if any Indian left the trict Court of Arizona in a conreservation to settle elsewhere he troversy between the Hopi and would forfeit all rights, privileges Navajo Indians as to lands within and annuities conferred by the executive order reservation terms of the treaty (15 Stat. 671). created December 16, 1882, for the

The creation of the reservation Hopi "and such other Indians as the following a military campaign and Secretary of the Interior may see fit enforced confinement of the Tribe to settle thereon," specifically disat Fort Sumner was in furtherance cussed the Navajo Treaty of 1868. of the governmental policy at that The court indicated that the Navatime to keep the Navajos from en- jos had no rights to lands outside gaging in depredations against non- the original reservation except insoIndians and other Indian groups.

far as the Government released Non-Indians were not thereafter them from their agreement when to be allowed within the established provision was made for them to ocreservation boundaries without au- cupy other lands by an executive thorization from government offi

order or other administrative order cials (Art. II, 15 Stat. 668). By or by a statute. Healing v. Jones, 210 this segregation it was hoped that F. Supp. 125, 140 (D. Ariz, 1962), peace between the Indians and non- aff*d, per curiam, Jones v. Healing, Indians could be maintained. The 373 U.S. 758 (1963). The Supreme latter were increasingly moving Court of Utah in Young v. Felornia, into the southwestern part of the

121 Utah 646, 244 P. 2d 862 (1952), country following its acquisition cert. denied, 344 U.S. 886 (1952), from Mexico. For a discussion of the also held that the 1868 Treaty bound exclusive governmental rights re

the entire Navajo tribe and divested tained by the Navajo Tribe over the

each member of aboriginal interests

to lands outside the reservation." lands within the Treaty reservation see Arizona ex rel. Merrill v. Turtle,

7 The action was brought by holders of graz413 F. 2d 683 (9th Cir. 1969), cert. ing permits for public lands issued by the

Bureau of Land Management, and also of den., 396 U.S. 1003 (1970), and cases

grazing leases from the State of Utah as to cited therein.

school section lands to remove certain Indians

from lands in San Juan County, Utah. The It has long been established that Utah Court upheld a summary judgment for Indian tribal aboriginal occupancy

the plaintiff although the Indians claimed ex

clusive grazing and possessory rights based rights are extinguished by cession to upon their continuous use and occupancy of

the land from time immemorial and their althe United States. Mitchel v. United

legations that they were a separate band dis

June 29, 1973

a

If there was any doubt that Heal

pancy which arose prior to the 1882 ing v. Jones, supra, differed in any Executive Order establishing the respect from the view expressed by Hopi Reservation. Kabinto held, the Utah Supreme Court in Young however, that Healing was res judiv. Felornia, as to the effect of the

cata of the question of the ex1868 Treaty upon the aboriginal tinguishment of their aboriginal rights of Navajo Indians, that

claims. The court quoted, at 1090, doubt has been removed by a subse

from an unreported conclusion of quent decision, United States v.

law in Healing whereby the special Kabinto, 456 F.2d 1087 (9th Cir.

court determined: 1972), cert. denied, 409 U.S. 842 (1972). In Kabinto, the United "Neither the Navajo Indian Tribe nor States sought to eject 16 Navajo

any individual Navajo Indians, whether Indians within a portion of the

or not living in the [Hopi] reservation

in 1882, gained any immediate Hopi reservation which the Court

rights of use and occupancy therein by in Healing ruled belonged exclu- reason of the issuance of the Executive sively to the Hopi Tribe. The Nava

Order of December 16, 1882, or by reason jos claimed the Healing decision

of any other fact or circumstance, save

and except by the exercise, after Decemdid not bind them for a number of

ber 16, 1882, of the authority reserved in reasons, including an assertion that

the Secretary of the Interior, under the they had aboriginal occupancy Executive Order of December 16, 1882, to rights to the land based upon occu

settle other Indians in that reservation."

area

tinct from the Navajo Indians who signed the Treaty. The Court found from their admissions that they were Navajos whose ancestors were connectd with the Treaty Indians.

A similar action was brought by the United States to remove the Indians from the land. The United States Court of Appeals for the 10th Circuit overturned a District Court's dismissal of the suit on the ground factual questions had been raised by the Indians' claimed occupancy rights and their claims that they were a separate band of Indians not part of the Navajo Tribe and had no treaty ohligations. United States v. Hosteen Tse-Kesi, 191 F.2d 518 (10th Cir. 1951). It ruled that if the Indians were found to be willful and continuous trespassers they should be enjoined and remanded the case for trial. The action was later dismissed by the District Court on June 27, 1953, however, as being moot since the Indians had moved to the reservation.

These two cases are noted by the Supreme Court in Hatahley v. United States, 351 U.S. 173, 175 (1956), which the Tribe has cited as showing a recognition of the long-time occupancy of Navajo Indians in San Juan County. (Portions of the transcript in the Hatahley case were admitted evidence In the present case, as Nav. Ex. 59.) The Indians in these three cases were occupying the McCracken Mesa area which was later

added to the Navajo Reservation by the 1958 act in an exchange for reservation lands in Arizona to be used by the United States in connection with the Glen Canyon Dam. The Supreme Court stated at 174 that Indians had lived "from time immemorial in stone and timber hogans on public land in San Juan County." The question presented before the Court was not one of title to the land, but whether the Indians could recover under the Federal Tort Claims Act, 28 ('.S.C. $ $ 2671 et seq. (1970) for the wrongful destruction of their horses by government employees. The Court held that the individual Indians were entitled to damages since the employees had not given them the requisite notice prescribed by the regulations issued pursuant to the Taylor Grazing Act of 1934, as amended, 43 U.S.C. $ 315 (1970), before destroying the horses. The Court also held that the District Court could not enjoin the United States or its agents from interfering with the Indians. The case, therefore, does not stand as precedent for a recognition of occupancy rights in those Indians superior to the United States' grazing lessees, but, rather, that the Indians' right to have proper notice given before the destruction of their horses was equated with the same right in white men who graze without authorization on public range lands licensed to others,

as

*

The Kabinto decision emphasized cases), arose because the United the power of the United States to States had not extinguished the extinguish Indian title—the ab- aboriginal rights. In Cramer a furoriginal right of occupancy. From ther reason was involved, namely, the quotation above it concluded occupation rights based upon imthat Healing had considered the provements and enclosure of land, aboriginal claims of the Navajos similar to settlement claims of nonand decided adversely to them. Indians, as will be discussed further, With reference to a contention that infra. In Santa Fe the grant to the Healing had not discussed Cramer third party was only of lands which v. United States, which the Tribe had been voluntarily ceded by the relies on in this case, the Court Indians, so there was a a further quesstated at 1090 :

tion of voluntariness. Here, how

ever, there are no such differences * * In Cramer, the Supreme Court

and the Navajo aboriginal occuheld that Indians who settle upon the public domain and establish residency pancy rights or title had been exthereby acquire rights of possession. tinguished by the 1868 Treaty. The Cramer, as was United States v. Santa

rights of the third party, the State, Fe Pacific R. Co., supra, was an action

therefore, and the rights of the brought by the United States to protect

Tribe are in an entirely different Indian title against third parties who also claimed interests from the United posture. States. The question was not the power of the government to extinguish aborigi- Archival Evidence of Post-1868 nal Indian title, but whether that power

Indian Occupancy of Aneth Area was exercised. Healing determined that it had been.

Before considering the Tribe's Therefore, it is clear that by the contention that the Utah Enabling Navajo Treaty of 1868 the aborigi- Act, in effect, created or recognized nal occupancy rights of the Navajo a further tribal right of occupancy Tribe and its members to any land in lands outside the reservation, let outside the 1868 reservation were us review the manifested facts of extinguished. See also Dubuque & Indian occupancy and the maniSioux City R.R. v. Des Moines fested governmental actions toward Valley R.R., 109 U.S. 329 (1883). the Navajos that are established by The above quotation illuminates one the record. We shall emphasize esof the essential differences between

pecially material which is not exthe instant case and Cramer and pressly discussed in the Director's United States v. Santa Fe Pacific decision. As the Solicitor stated in

v Ry. Co., namely, the fact that in remanding this case for the hearing,

, , those two cases the rights of the In- “the resolution of legal principles in dians (an individual in Cramer, and areas which have not been clearly the Walapai Tribe in Santa Fe) staked out is better done with full against third parties (railroad com- knowledge of the facts involved.” 72 panies or their vendees in both I.D. 361, 366 (1965).

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