by any Indian or Indian tribes" as "such Indian reservation." H.R. REP. NO. 162, 53rd Con., 1st Sess. 17 (1893); S. REP. NO. 414, 53rd Cong., 2nd Sess. 18 (1894). This indicates that the primary concern of Congress was in requiring the State to relinquish any proprietary interest in those lands which had been set aside as Indian reservations regardless of whether the lands were. owned or held by a tribe or had then been allotted to an individual Indian. Cf. Alonzo v. United States, 249 F.2d 189 (10th Cir. 1957), cert. denied, 355 U.S. 940 (1958), which discussed the legislative history of a similar disclaimer made by the State of New Mexico, indicating that Congress required the disclaimer so as to preclude any possible challenge by the State of "titles" acquired by Indians through grants made by the Governments of Spain or Mexico. As to the meaning of the word "held" in relation to Indian tribes, the historical perspective is necessary. At the risk of oversimplification it must suffice to say that generally the status of lands within withdrawals for the benefit of Indians was uncertain in 1894. Thus, whether a tribe was deemed to "own" lands within a treaty or statutory reservation depended upon the specific language used therein. This later led to express statutory language such as that in the 1958 Act pertaining to the Navajo tribe. The status as to executive order withdrawals was even less certain, but they were not considered then as the equivalent of treaty or statutory reservations. See FEDERAL INDIAN LAW, supra, at 613-22; see also Healing v. Jones, supra. The use of the word "held" by an Indian tribe, therefore, would include areas which had been withdrawn for a Tribe but not then then considered as falling within the meaning of being "owned" by the Tribe under federal law, although they would be considered as in a reservation and "otherwise disposed of" under section 6 of the Act. The only other meaning to "held" by an Indian tribe in the context of the Enabling Act is if a tribe's aboriginal occupancy rights had not been extinguished by Congress the tribe's occupancy might be deemed a holding under its aboriginal "title" as determined under the tests for tribal aboriginal occupancy. But see, Northwestern Bands of Shoshone Indians v. United States, supra, at 324 U.S. 346, where the Court indicated that the United States had treated unceded or unrelinquished Shoshone territory in Utah and adjoining states as a part of the public domain in administering the territory as though no Indian land titles were involved, and expressly referred to the Utah school land grant, 28 Stat. 109, as such a manifestation. In view of the facts of this case, it is unnecessary to decide whether unextinguished and unrecognized aboriginal occupancy could within the meaning of the Act. It is clear, however, that the reference in both sections 3 and 6 to extinguishing "title" or the "reservation” in June 29, 1973 dicates that Congress was not recognizing any tribal occupancy rights to land which it had already extinguished by treaty or statute or which was not then withdrawn as a reservation for Indians and showed a possibility, in accordance with the overall policy of the time, that existing reservations might be reduced or opened for disposal as public lands. We see nothing in the Utah Enabling Act and in the historical milieu then and in 1900 which indicates that Congress intended to hold in abeyance the State's grant to school lands within an area, where any aboriginal title had been extinguished, where a proportionately few members of a tribe were outside the established reservation boundaries for the tribe and using an even wider undefined area for grazing purposes and certain other limited purposes in a transitory fashion together with Indians from other tribes and with nonIndians also in the area, which is the situation in this case. It appears that the disclaimer was of lands which would fall within the meaning of lands "otherwise disposed of," or were within a reservation as provided in section 6, and that the two provisions are in pari materia insofar as determining what lands come within the grant to the State or were excepted from the grant. Therefore, it is essential to determine whether lands would be considered as excepted from the grant because they were "otherwise disposed of" to ascertain the effect of the disclaimer. This conclusion is supported by a consideration of the cases upon which the Tribe relies for its interpretation and other matters essential in ascertaining the true legislative intent. See United States v. Jackson, 280 U.S. 183, 193 (1930). c. Analysis of Judicial Precedents One of the most important cases upon which the Tribe relies to establish that protected Indian occupancy may bring the lands within the status of lands "otherwise disposed of" under the terms of the school grant in section 6 of the Utah Enabling Act, 28 Stat. 109, is United States v. Cramer, supra, which held that the possession of a tract of land by individual Indians falls within the clause of the grant to a railroad excepting from its operation lands "reserved *** or otherwise disposed of." 261 U.S. 219, 230. The Tribe also contends that the Court's reference in Cramer at 228 to the specific 2nd provision in the disclaimer provision in section 3 of Utah's Enabling Act, 28 Stat. 108, which includes Indian tribes as well as individual Indians, indicates that tribal rights were recognized by Cramer as well as individual rights. The State responds that the rights recognized in Cramer were aboriginal occupancy rights. The Tribe contends that they were not. The quotation from Kabinto, supra, regarding Cramer, suggests they were. In any event, the significant fact is that the Indians in Cramer had no reservation where they could be protected from intrusions of nonIndians. Although a reservation for the Indian tribe had been proposed to Congress, it was rejected and apparently no governmental action was taken to provide for the Indians. The Court equated the individual rights with tribal aboriginal dence does not disclose any act of dominion on their part over, or any claim or assertion of right to, any lands beyond the limits of their actual possessions as thus defined. Under the circumstances, their rights are confined to the limits of actual occupancy and cannot be extended constructively to other lands never possessed or claimed, simply because they form part of the same legal rights by indicating that the policy subdivisions .(Id. at 235.) This is in accordance with the general v. Northern Pacific R.R., 119 U.S. Here the claim for the Indians is based upon occupancy alone, and the extent of it is clearly fixed by the inclosure, cultivation and improvements. The evi As precedent for any understanding of the phrase "owned or held by any Indian or Indian tribe" in the Utah Enabling Act, the Cramer case would appear to restrict the meaning of "held" to occupancy limited by tangible acts of possession defined by enclosures, cultivation or improvements. Although the Navajo tribe had an established reservation, whereas the Indians in Cramer did not, the Tribe contends that the standard of occupancy pertaining to the Navajos should be different from Cramer because of the different life style of the Indians and now because the Tribe is asserting tribal rather than individual rights. The Tribe relies upon cases regarding Alaska natives to support its contention that there is an additional tribal occupancy right recognized under federal law in addition to the original aboriginal tribal right. Most of the Alaska cases involve interpretations of section 8 of the Alaska Organic Act of May 17, 1884, 23 Stat. 26, pertaining June 29, 1973 to the then territory of Alaska and which provided: That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for further legislation by Congress. *** And, in addition, some of the cases interpret the disclaimer in section 4 of the Alaska Statehood Act of July 7, 1958, 72 Stat. 339, 48 U.S.C. Ch. 2 note (1970), which provides in part: said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State or its political subdivisions by or under the authority of this Act, the right or title to which is held by the United States or is subject to disposition by the United States, and to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives. *** The Tribe relies especially upon Miller v. United States, 159 F.2d 997 (9th Cir. 1947), as recognizing Indian rights of occupancy by virtue of section 8 of the Act of May 17, 1884, quoted above, although it rules that aboriginal rights of natives of Alaska had been extinguished by the 1867 purchase treaty between the United States and Russia. It contends that similarly the Utah Enabling Act meant to protect the Indian occupation of the public domain and prevented passage of title to any lands subject to such occupancy. The State points out that in Miller the court expressly distinguished between any tribal type of occupancy and individual rights and recognized only individual rights under the 1884 Act. It also contends that the Miller ruling as to the extinguishment of aboriginal rights has been discredited and overruled by the Supreme Court in Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955), and Hynes v. Grimes Packing Co., 337 U.S. 86, 106 (1949). The State suggests that the 1884 Act and subsequent legislation pertaining to Alaska merely preserved the right of nondisturbance of the occupancy of the Indians, neither granting nor taking away anything they might otherwise have pending future legislation. Id.; Organized Village of Kake v. Egan, 369 U.S. 60 (1962). In response, the Tribe agrees that the 1884 Act pertaining to Alaska preserved the status quo as to occupancy rights until further Congressional or judicial action was taken, although it was not intended as a grant of permanent rights. TeeHit-Ton Indians, supra, at 278. It contends that the Utah Enabling Act also preserved the status quo by withholding from Utah any lands occupied by Indians or Indian tribes, and that Congress relinquished its beneficial title to the Tribe by the Act of March 1, 1933, by extending the reservation boundaries to include the area. It contends that the rulings in the Supreme Court cases cited above indicating that there were no compensable rights in the Alaska natives created by such legislation are irrelevant to the question of the protection of their occupancy rights with regard to third persons. In Organized Village of Kake v. Egan, supra, the Court discussed the legislative history of the disclaimer provision in section 4 of the Alaska Statehood Act quoted above and found that [I]t was understood that the disclaimer provision left the State free to choose Indian "property" if it desired, but that such a taking would leave unimpaired the Indians' right to sue the United States for any compensation that might later be established to be due. 369 U.S. 65–66. It also found that the provision was suggested by the Interior Department so that Alaska "be dealt with as had other States." (Id. at 68.) Although it indicated that the disclaimer of right and title by the State was a "disclaimer of proprietary rather than governmental interest," it was the best way to ensure that statehood would neither extinguish nor establish claims by Indians against the United States so that if lands sub ject to the claim of Indian rights were transferred to the State, the Indians were not thereby to lose the right to make claims against the United States for damages. (Id. at 69.) Although the case was concerned with State jurisdiction to regulate fishing traps, the discussion does not support any view of the disclaimer provision as creating or confirming occupancy rights in Indians, whose aboriginal rights had been extinguished, which would be superior to grant of lands to the State. Cf. United States v. Alaska, 197 F. Supp. 834 (D. Alaska 1961). Another case decided after the Alaska Statehood Act relied on by the Tribe, Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969), did not cite or rely on the disclaimer provision in section 4 of the Act or the discussion in Organized Village of Kake regarding the operation of the State grant under that provision, instead, it considered the language in the grant of lands to be selected by the State. The State of Alaska sought summary judgment to compel the Secretary of the Interior to issue it a patent to lands which a native village claimed asserting present and aboriginal use and occupancy. The court found there were genuine issues of material fact to be decided and refused to then rule as a matter of law "that under no circumstances could Indian trapping, hunting and camping" constitute a condition which would deprive the selected lands of being "vacant, unappropriated and unreserved land" as required by the grant. In making this ruling the court simply noted section 8 of the Act of May 17, 1884. (Id. at 940.) The historical uncertainty as to the status of Alaska natives, the nature of any right to lands, and the source of such right was not settled by the dictum in Miller concerning the extinguishment of aboriginal rights by the Alaska purchase treaty and recognition of protection of possessory rights under the 1884 Act. For some discussion of the vacillating policies and views con |