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June 29, 1973

The Director's decision is modified by striking the ruling concerning the standing issue as a ground for dismissal of the Tribe's complaint or protest against the State's patent application, and by modifying the findings and conclusions to conform with our ruling on this issue.

General Findings As to Individual and Tribal Navajo Occupancy

In addition to his ruling on the Tribe's standing, which may well have simply been a further ruling

on the merits of the case rather than on the right to appear before the Department, the Director made findings and conclusions on the merits of the Tribe's protest. In considering standards set forth in court decisions, he specifically found there was not occupancy of the disputed sections by Navajos, both in terms of individual Navajos and in terms of Navajo tribal occupancy, sufficient to establish possession and to preclude the State's grant.

As to the individual occupancy, the Director hypothesized that even assuming an extension of the Cramer ruling in the light of the mode of life of the Navajos with

Act in 1968, 82 Stat. 121, could broaden the class of beneficiaries under the 1933 Act as to distribution of benefits from mineral royalties. The Court noted that the legislative history of the 1968 Act, specifically, S. REP. NO. 710, 90th Cong., 1st Sess. 2 (1967), reported a difficulty in determining Navajo residents in the Aneth extension, beneficiaries to the fund created by the 1933 Act, since "many Navajo families do not live permanently within the lands set aside in 1933 but moved back and forth between this area and other locations."

the Indians openly asserting dominion over the area encompassing the disputed sections to the exclusion of others, the facts in this case would not support this theoretical situation. He specifically found:

(1) the individual occupancy on these sections did not begin until after May 1, 1900;

(2) the area of occupancy judged with respect to the mode of life of the Navajo was vague and indeterminate; and

(3) the Navajo occupancy was not exclusive nor was dominion asserted.

As to tribal occupancy he cited the standard discussed in United States v. Santa Fe R.R., supra, regarding tribal aboriginal occupancy, as to definable territory occupied exclusively by the tribe (as distinguished from land wandered over by many tribes), and concluded that there was not sufficient tribal occupancy here, that at most prior to the 1920's the land was only a

no-man's-land used and shared by white stockmen and traders, a few bands of renegade Utes fleeing from the confinement of their Colorado reservations and some Navajo families seeking pasturage for their livestock.

We believe these findings are correct.

In considering the Tribe's contentions, it must be kept in mind that there was no withdrawal of the immediate area embracing these sections for the benefit of the Navajos in 1900. The 1905 executive orders added a small area north of the San Juan River in Utah near the disputed sections, but it was not until the lands were withdrawn in 1932 in aid of the legislation which be

came the 1933 Act that the area encompassing the disputed sections was set aside for the Navajos and other Indians. This was nearly a third of a century after the time the State's title presumably vested.

Effect of Indian Occupancy and the

Utah Enabling Act

Likewise, neither then, nor thereafter, were there any applications filed under the Indian Homestead Act, the General Allotment Act, or

any other statute by which property rights could be acquired from the United States. Therefore, aside from the 1933 and 1958 statutes, which were long after the determinative 1900 date, the only statute upon which the Tribe makes any claim of right under as of 1900 is the disclaimer provision in the Utah Enabling Act as to lands "owned or held by any Indian or Indian tribes." The basic thrust of its supplemental and reply briefs in this appeal relies upon this provision as divesting the State of any right to these sections because of Navajo occupancy of the land. In addition to this statute, the Tribe primarily relies upon a general policy to protect occupancy rights of Indians. It contends that this policy must be recognized here and related to the type of lifestyle, the habits, modes and customs of the Navajos as distingished from Indians in other parts of the country, such as those in Cramer and Schumacher, and should also be distinguished from standards applicable to occupancy and settlements by white men.

The Tribe amalgamates statements in the court cases regarding individual occupancy rights and tribal aboriginal rights into an additional protected tribal occupancy right which it contends flows from the Utah Enabling Act and court cases pertaining to occupancy rights of Alaska Natives. The amalgamation of undifferentiated concepts and principles from cases with different factual circumstances are fused together under the broad

policy of the United States to protect occupancy rights of Indians and a broad rule of statutory construction to construe legislation liberally in favor of the Indians.

a. Statutory Construction
Principles

The Tribe's contentions in this appeal relate primarily to the effect of the Utah Enabling Act. It contends, in effect, that the words "owned or held by any Indian or Indian tribes" and "otherwise disposed of" must be construed liberally to benefit Indians. It is unquestioned that courts have often recognized a statutory rule of construction to favor Indians in case of doubt as to the meaning of words in treaties or legislation in their behalf. Squire v. Capoeman, 351 U.S. 1 (1956); and see cases cited in Assiniboine & Sioux Tribes v. Nordwick, 378 F.2d 426 (9th Cir. 1967). cert. den. 389 U.S. 1046. However, the weight due to a rule of statutory construction is but one input into the interpretational equation. The rule of statutory construction in

June 29, 1973

favor of Indians is not sufficient to entitle the Indians here to dispositive deference. As Assiniboine & Sioux Tribes shows, the rule is not inflexible and must give way to other rules of construction where warranted by the circumstances of the case.

United States v. First National Bank, 234 U.S. 245, 259, 262 (1914), would limit the rule of statutory

construction in favor of Indians only to treaties or legislation where the consent of the Indians is involved, emphasizing that where legislation contemplated the rights of others and intended to enlarge the right to acquire as well as to part with lands held in trust for the Indians, the Court would not supply words which Congress omitted "out of any consideration of public policy or desire to promote justice, if such would be the effect in dealing with dependent people." Even where consent of Indians is at issue, the Supreme Court in discussing the rule has suggested it meant no more than that a treaty with Indians would be construed in accordance with the tenor and intent of the parties to the treaty, stopping short of "varying its terms to meet alleged injustices," leaving matters of such "generosity" to Congress. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 353 (1945). As to whether a jurisdictional act to entertain claims of a specific tribe included lands which had been ceded by the Indians and sold and patented to settlers, the Court considered earlier legislation, administrative acts, and

all the circumstances leading to the passage of the Act to interpret the Act. United States v. Creek Nation, 295 U.S. 103, 108 (1935).

The Utah Enabling Act was not simply an Act pertaining to Indians, but was an Act to permit a territory to become a state, to provide the conditions whereby the people of the territory could establish their own government which would be transferred from the federal territorial control to the new state, and other matters, which included the grant of school lands to the new state. As court decisions regarding Indians must be understood with respect to the time they are made and the overall circumstances involved (see FEDERAL INDIAN LAW, supra, at 23), so must the effect of the Utah Enabling Act. Grants to states for schools have been construed to carry out the intent of Congress. While recognizing the generous policy of the Government with respect to such grants, the Congressional intent as to whether the grant is to take effect must be ascertained by the condition of the country when the acts were passed, as well as the purpose declared on their face, and all parts of the acts should be read together. Johanson v. Washington, 190 U.S. 179 (1903). School grants, in particular that of Utah, have also been interpreted by the Supreme Court in relation to other laws and manifested public policy at the time to determine the extent of the grant. United States v. Sweet, 245 U.S. 563 (1918). Cf. Mobile & O.R.R. v.

Tennessee, 153 U.S. 486 (1894), indicating that legislative contracts should be read in light of the public policy entertained at the time they were made rather than at a later period when different ideas and theories may prevail. They have also been construed with respect to facts pertaining to an Indian tribe's aboriginal occupancy rights, the creation of a reservation, and cession of Indian rights, in cases to be discussed, infra.

In short, the interpretation of what lands were deemed to be "owned or held by any Indian or Indian tribes" or "otherwise disposed of" in the Utah Enabling Act, cannot rest alone upon one aspect of the Government's policy toward Indians or upon one rule of statutory construction, but the true legislative intent must be ascertained as of that time in accordance with the usual meaning of the words, the overall purpose of the Act, and, as we have indicated previously, the overall historical milieu out of which it arose, including the public policy of the time, as well as any court interpretations of comparable provisions in other statutes. This is especially necessary in this case as the Tribe's position sets forth a novel and unprecedented extension of concepts of protection of Indian occupancy in relation to a grant to a third party of land then outside the official boundaries of a reservation for a tribe.

b. Analysis of Sections 3 and 6 of

the Utah Enabling Act

In construing the Utah Enabling Act, we first consider the language of the school grant excepting lands subject to it and the disclaimer provision together to understand the entire Congressional intent. The disclaimer provision in section 3 reads:

*** the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; ** that no taxes shall be imposed by the State on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use; but nothing herein shall preclude the said State from taxing, as other lands are taxed, any lands owned or held by any Indian who has severed his tribal relations and has obtained from the United States or from a person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any Act of Congress containing a provision exempting the lands thus granted from taxation; but said ordinance shall provide that all such lands shall be exempt from taxation by said State so long and to such extent as such Act of Congress may prescribe. (28 Stat. 108.)

June 29, 1973

The school land grant in section 6 provides:

That upon the admission of said State into the Union, sections numbered two, sixteen, thirty-two and thirty-six in every township of said proposed State, and where such sections or any parts thereof have been sold or otherwise disposed of by or under the authority of any Act of Congress other lands equivalent thereto, in legal subdivisions of not less

so that its meaning must be determined by the context in which it is used. See cases under "held" in 19 WORDS AND PHRASES (1970). See also cases under "otherwise" and "owned" in 30 WORDS AND PHRASES (1970).

Section 3 refers to the extinguishment of "title" to lands "owned or held by any Indian or Indian than one quarter section and as contig- Tribes" while the proviso in section

uous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such

manner as the legislature may provide,

with the approval of the Secretary of the

Interior: Provided, That the second, sixteenth, thirty-second, and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this Act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this Act until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain. (28 Stat. 109.)

As to the phrase in the disclaimer provision in section 3 of "owned or held by any Indian or Indian tribes," and the words "otherwise disposed of" in the grant in section 6, it is apparent that there is no fixed meaning to these words outside of the context of the Act and all the aids in interpreting the Act. For example, the word "held" in statutes relating to land often means that land is "owned" but does not ordinarily mean any particular user. However, it has no established primary or legal technical meaning

6 refers to the extinguishment of an Indian reservation. The use of the word "title" following the words. "owned or held" in the disclaimer provision strongly indicates that Congress had in mind a recognized right in existence at that time or, at the least as to individual Indians, an inchoate right perfectable under existing legislation. If lands had been allotted or otherwise granted to an individual Indian they would fall within the category of "sold or otherwise disposed of" within the excepting language in section 6, and would no longer be public land. Note that in section 3 the phrase "owned or held by any Indian" is repeated as to the State's right to tax the lands of an Indian who has obtained a title to land from the United States or some person "by patent or other grant." This supports an ununderstanding that Congress envisaged the acquisition of title by individual Indians under the laws then permitting individual Indians to acquire title to lands both inside and outside reservation boundaries.

We note that the legislative reports on the disclaimer provision refer to the lands "owned or held

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