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by any Indian or Indian tribes” as

treaty or statutory reservations. See "such Indian reservation.” H.R. FEDERAL INDIAN LAW, suREP. NO. 162, 53rd Con., 1st Sess. pra, at 613–22; see also Healing v. 17 (1893); S. REP. NO. 414, 53rd Jones, supra. The use of the word Cong., 2nd Sess. 18 (1894). This in- "held” by an Indian tribe, theredicates that the primary concern of fore, would include areas which Congress was in requiring the State had been withdrawn for a Tribe but to relinquish any proprietary in- not then considered as falling terest in those lands which had been within the meaning of being set aside as Indian reservations re- "owned" by the Tribe under federal gardless of whether the lands were law, although they would be conowned or held by a tribe or had then sidered as in a reservation and been allotted to an individual In

“otherwise disposed of” under secdian. Cf. Alonzo v. United States, tion 6 of the Act. 249 F.2d 189 (10th Cir. 1957), cert. The only other meaning to "held" denied, 355 U.S. 940 (1958), which by an Indian tribe in the context of discussed the legislative history of the Enabling Act is if a tribe's ab

a a similar disclaimer made by the original occupancy rights had not State of New Mexico, indicating been extinguished by Congress the that Congress required the disclaim

tribe's occupancy might be deemed er so as to preclude any possible a holding under its aboriginal challenge by the State of "titles" ac

"title" as determined under the quired by Indians through grants tests for tribal aboriginal occumade by the Governments of Spain

pancy. But see, Northwestern Bands or Mexico.

of Shoshone Indians v. United As to the meaning of the word States, supra, at 324 U.S. 346, "held" in relation to Indian tribes, where the Court indicated that the historical perspective is neces

the United States had treated unsary. At the risk of oversimplifica- ceded or unrelinquished Shoshone tion it must suffice to say that gen- territory in Utah and adjoining erally the status of lands within states as a part of the public domain withdrawals for the benefit of Indi- in administering the territory as ans was uncertain in 1894. Thus, though no Indian land titles were whether a tribe was deemed to involved, and expressly referred to "own" lands within a treaty or the Utah school land grant, 28 Stat. statutory reservation depended 109, as such a manifestation. In upon the specific language used view of the facts of this case, it is therein. This later led to express unnecessary to decide whether unstatutory language such as that in extinguished and unrecognized abthe 1958 Act pertaining to the Na- original occupancy could come vajo tribe. The status as to execu- within the meaning of the Act. It is tive order withdrawals was even clear, however, that the reference in less certain, but they were not con

both sections 3 and 6 to extinguishsidered then as the equivalent of ing "title" or the "reservation” in

a

June 29, 1973 dicates that Congress was not rec- supported by a consideration of the ognizing any tribal occupancy cases upon which the Tribe relies rights to land which it had already for its interpretation and other matextinguished by treaty or statute or ters essential in ascertaining the which was not then withdrawn as a true legislative intent. See United reservation for Indians and showed States v. Jackson, 280 U.S. 183, 193 a possibility, in accordance with the (1930). overall policy of the time, that existing reservations might be re- C. Analysis of Judicial Precedents duced or opened for disposal as

One of the most important cases public lands. We see nothing in the

upon which the Tribe relies to estabUtah Enabling Act and in the his

lish that protected Indian occutorical milieu then and in 1900 which indicates that Congress in

pancy may bring the lands within

the status of lands “otherwise distended to hold in abeyance the

posed of" under the terms of the State's grant to school lands within

school grant in section 6 of the Utah an area, where any aboriginal title had been extinguished, where a pro

Enabling Act, 28 Stat. 109, is

United States v. Cramer, supra, portionately few members of a tribe

which held that the possession of a were outside the established reservation boundaries for the tribe and

tract of land by individual Indians

falls within the clause of the grant using an even wider undefined area

to a railroad excepting from its opfor grazing purposes and certain

eration lands “reserved *** other limited purposes in a tran

erwise disposed of.” 261 U.S. 219, sitory fashion together with Indi

230. The Tribe also contends that ans from other tribes and with non

the Court's reference in Cramer at Indians also in the area, which is the situation in this case.

228 to the specific and provision in

the disclaimer provision in section 3 It appears that the disclaimer was

of Utah's Enabling Act, 28 Stat. of lands which would fall within the

108, which includes Indian tribes as meaning of lands "otherwise dis

well as individual Indians, indicates posed of," or were within a reser

that tribal rights were recognized vation as provided in section 6, and

by Cramer as well as individual that the two provisions are in pari rights. The State responds that the materia insofar as determining rights recognized in Cramer were what lands come within the grant to aboriginal occupancy rights. The the State or were excepted from the

Tribe contends that they were not. grant. Therefore, it is essential to determine whether lands would be

The quotation from Kabinto, supra, considered as excepted from the

regarding Cramer, suggests they grant because they were "otherwise were. In any event, the significant disposed of” to ascertain the effect fact is that the Indians in Cramer of the disclaimer. This conclusion is had no reservation where they could

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be protected from intrusions of non- dence does not disclose any act of

dominion on their part over, or any claim Indians. Although a reservation for

or assertion of right to, any lands be the Indian tribe had been proposed yond the limits of their actual possesto Congress, it was rejected and ap- sions as thus defined. Under the circumparently no governmental action stances, their rights are confined to the

limits of actual occupancy and cannot be was taken to provide for the Indi

extended constructively to other lands ans. The Court equated the individ

never possessed or claimed, simply beual rights with tribal aboriginal

cause they form part of the same legal rights by indicating that the policy subdivisions . (Id. at 235.) of protecting "original nomadic tribal occupancy" should apply also This is in accordance with the general to individual Indian occupancy em

rule that possession alone, without title phasizing "such occupancy being of

or color of title confers no right beyond

the limits of actual possession. a fixed character lends support to

(Id. at 236.) another well understood policy,

As precedent for any understandnamely, that of inducing the Indian to forsake his wandering habits and ing of the phrase "owned or held by

any Indian or Indian tribe" in the adopt those of civilized life.(Id. at 227.) The Court also distinguish

Utah Enabling Act, the Cramer ed the facts from the case of Buttz

case would appear to restrict the

meaning of "held" to occupancy v. Northern Pacific R.R., 119 U.S.

limited by tangible acts of posses55 (1886), which held the fee was

sion defined by enclosures, cultivagranted to the railroad subject to

tion or improvements. the right of occupancy of Indians and the right of the company im

Although the Navajo tribe had an

established reservation, whereas the mediately attached free from In

Indians in Cramer did not, the dian title when the United States

Tribe contends that the standard of thereafter extinguished the Indian title. It indicated that the pos

occupancy pertaining to the Navasession of the Indians in Cramer,

jos should be different from Cramer however, was within the policy and

because of the different life style of

the Indians and now because the with the implied consent of the Government. That possession was

Tribe is asserting tribal rather than

individual rights. definite and substantial in character

The Tribe relies upon cases reand open to observation when the

garding Alaska natives to support railroad grant was made (Id.

its contention that there is an adat 230.) The Court specifically re

ditional tribal occupancy right fused to extend the right of the Indians to the entire subdivision but recognized under federal law in adlimited it, saying:

dition to the original aboriginal

tribal right. Most of the Alaska Here the claim for the Indians is based

cases involve interpretations of secupon occupancy alone, and the extent

tion 8 of the Alaska Organic Act of of it is clearly fixed by the inclosure, cultivation and improvements. The evi- May 17,1884, 23 Stat. 26, pertaining

* * * *

June 29, 1973

.

to the then territory of Alaska and out that in Miller the court expressly which provided :

distinguished between any tribal That the Indians or other persons in type of occupancy and individual said district shall not be disturbed in rights and recognized only individthe possession of any lands actually in

ual rights under the 1884 Act. It their use or occupation or now claimed

also contends that the Miller ruling by them but the terms under which such

as to the extinguishment of aborigipersons may acquire title to such lands is reserved for further legislation by

nal rights has been discredited and Congress. * * *

overruled by the Supreme Court in And, in addition, some of the cases Tee-Hit-Ton Indians v. United interpret the disclaimer in section 4 States, 348 U.S. 272 (1955), and of the Alaska Statehood Act of Hynes v. Grimes Packing Co., 337 July 7, 1958, 72 Stat. 339, 48 U.S.C. U.S. 86, 106 (1949). The State sugCh. 2 note (1970), which provides gests that the 1884 Act and subsein part:

quent legislation pertaining to said State and its people do agree

Alaska merely preserved the right and declare that they forever disclaim all

of nondisturbance of the occupancy right and title to any lands or other prop- of the Indians, neither granting nor erty not granted or confirmed to the State

taking away anything they might or its political subdivisions by or under

otherwise have pending future legisthe authority of this Act, the right or title

lation. Id.; Organized Village of to which is held by the United States or is subject to disposition by the United Kake v. Egan, 369 U.S. 60 (1962). States, and to any lands or other prop

In response, the Tribe agrees that erty (including fishing rights), the right

the 1884 Act pertaining to Alaska or title to which may be held by any

preserved the status quo as

to Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United occupancy rights until further ConStates in trust for said natives. * * * gressional or judicial action was

The Tribe relies especially upon taken, although it was not intended Miller v. United States, 159 F.2d as a grant of permanent rights. Tee

(9th Cir. 1947), as recognizing Hit-Ton Indians, supra, at 278. It Indian rights of occupancy by vir- contends that the Utah Enabling tue of section 8 of the Act of Act also preserved the status quo by May 17, 1884, quoted above, al- withholding from Utah any lands though it rules that aboriginal occupied by Indians or Indian rights of natives of Alaska had been tribes, and that Congress relinextinguished by the 1867 purchase quished its beneficial title to the treaty between the United States Tribe by the Act of March 1, 1933, and Russia. It contends that simi- by extending the reservation bounlarly the Utah Enabling Act meant daries to include the area. It conto protect the Indian occupation of tends that the rulings in the Suthe public domain and prevented preme Court cases cited above indipassage of title to any lands subject cating that there were no compento such occupancy. The State points sable rights in the Alaska natives

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created by such legislation are irre- "Cf. United States v. Alaska, 197 F. levant to the question of the protec- Supp. 834 (D. Alaska 1961). tion of their occupancy rights with Another case decided after the regard to third persons.

Alaska Statehood Act relied on by In Organized Village of Kake v. the Tribe, Alaska v. U dall, 420 F.2d Egan, supra, the Court discussed the 938 (9th Cir. 1969), did not cite or legislative history of the disclaimer rely on the disclaimer provision in provision in section 4 of the Alaska section 4 of the Act or the discussion Statehood Act quoted above and in Organized Village of Kake refound that

garding the operation of the State

grant under that provision, instead, [I]t was understood that the disclaimer

it considered the language in the provision left the State free to choose Indian "property” if it desired, but that grant of lands to be selected by the such a taking would leave unimpaired State. The State of Alaska sought the Indians' right to sue the United States

summary judgment to compel the for any compensation that might later be

Secretary of the Interior to issue it a established to be due.

patent to lands which a native vil369 U.S. 65-66. It also found that

lage claimed asserting present and the provision was suggested by the aboriginal use and occupancy. The Interior Department so that Alaska

court found there were genuine is"be dealt with as had other States."

sues of material fact to be decided (Id. at 68.) Although it indicated

and refused then rule as a matter that the disclaimer of right and title

of law "that under no circumstances by the State was a “disclaimer of could Indian trapping, hunting and proprietary rather than govern- camping" constitute a condition mental interest," it was the best way

which would deprive the selected to ensure that statehood would

lands of being "vacant, unapproprineither extinguish nor establish

ated and unreserved land” as reclaims by Indians against the quired by the grant. In making this United States so that if lands sub- ruling the court simply noted secject to the claim of Indian rights tion 8 of the Act of May 17, 1884. were transferred to the State, the

(Id. at 940.) Indians were not thereby to lose the

The historical uncertainty as to right to make claims against the

the status of Alaska natives, the naUnited States for damages. (Id. at

ture of any right to lands, and the 69.) Although the case was concerned with State jurisdiction to

source of such right was not settled regulate fishing traps, the discussion by the dictum in Miller concerning does not support any view of the dis

the extinguishment of aboriginal claimer provision as creating or con- rights by the Alaska purchase treaty firming occupancy rights in Indians, and recognition of protection of whose aboriginal rights had been possessory rights under the 1884 extinguished, which would be su- Act. For some discussion of the perior to grant of lands to the State. vacillating policies and views con

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