June 29, 1973 cerning these matters see FEDERAL INDIAN LAW, supra, Chap. XI, B. It is all too evident from the legislative history of the Alaska Native Claims Settlement Act of December 18, 1971, 85 Stat. 688, and the terms of that Act that Congress believed the Alaska natives might have aboriginal land claims which had not been extinguished and for which compensation had not been allowed under the Indian Claims Commission Act, 25 U.S.C. § 70 et seq. (1970). Section 2 of the Alaska Native Claims Settlement Act expressly refers to aboriginal land claims by natives and native groups, and section 4 (85 Stat. 689-90) expressly extinguished all aboriginal titles and claims of aboriginal title in Alaska based on use and occupancy.31 The differences in language between the Alaska 1884 Act and the Utah Enabling Act alone warrant a difference in interpretation. Also, the fact at the time the 1884 Act was passed there was no clear policy concerning the Alaska natives or recognition of what rights they might have differentiates the situation there with the situation pertaining to the Navajos where there had been express provision made for them by a reservation and where there also had been express statutory provision for the creation Section 2(d) of the Act stated: "No provision of this Act shall constitute a precedent for reopening, renegotiating, or legislating upon any past settlement involving land claims or other matters with any Native organizations, or any tribe, band, or identifiable group of American Indians * of individual rights and title to lands outside the reservation under the terms of the Indian Homestead and General Allotment Acts. See Metlakatla Indians v. Egan, 369 U.S. 45 (1962), comparing the situation in Alaska with that in the other states, pointing out that few reservations had been made in Alaska as there had been no need to protect the white settler from the peaceful natives as necessary in the other states. Thus, although court interpretations or applications of Alaska native possessory rights recognized under the 1884 Act, and subsequent acts, including the Alaska Statehood Act, are of interest, these differences must be kept in mind because they are reasons for more generous rulings concerning the protection of native occupancy rights than where treaty reservations had been created for a tribe. See an application of this with respect to Departmental regulations to prescribe the necessary occupancy for Alaska natives under the Alaska Native Allotment Act of May 17, 1906, as amended, 43 U.S.C. §§ 270-71 (1970). Acting Solicitor's Opinion of September 21.1964,71 I.D. 340. Thus, as we have held, the words "owned or held by any Indian or Indian tribes" in the Utah Enabling Act must be considered in light of the existing situation pertaining to Utah and the Indians in that area. Likewise, the provision in the Alaska 1884 Act that "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" is considered in light of the situation prevailing in Alaska at that time. In addition to the fact no general provision had been made for the Indians either by reservations or legislation whereby title to the federal lands could be acquired, in 1884 the general public land laws applicable to the other territories and states were not extended to Alaska, except the mining laws, and the possession of nonIndians as well as Alaska natives was therefore protected by the Act as well. In addition to the then unresolved question as to any aboriginal native claims which prevailed, there was the analogous question of rights of non-Indian settlers, occupants and users of the land, and the Act broadly provided for the non-disturbance of all in that category as of 1884. Cf. Heckman v. Sutter, 119 F. 83 (9th Cir. 1902) Russian American Co. v. United States, 199 U.S. 570 (1905). That Act arose out of different circumstances from the Utah Enabling Act and may not be construed in pari materia with it. Cf. Acting Solicitor's Opinion of September 21, 1964, supra. As to the standard of occupancy required for recognition of the Indians' occupancy rights the Tribe attempts to find analogies in the facts of the cases pertaining to Alaska natives. The State, however, contends that the standards as enunciated by these cases require proof that the possession or occu pancy is exclusive; notorious; of such a nature as to leave visible evidence thereof so as to put strangers on notice that the land is occupied; that the extent of the possession or occupancy must be reasonably apparent; and it must be substantial. As indicated, the Tribe has contended that the particular type of lifestyle of the Indians involved must be the basis for the standard by which the occupancy is recognized citing Mitchel v. United States, supra, and United States v. Santa Fe Pacific R.R. Co., supra. These cases, as the Director indicated, pertained to aboriginal tribal occupancy. Santa Fe expressly used a standard of "exclusive" occupancy. The Tribe states that words such as "exclusive" and "notorious" are rich in meaning in Anglo-Saxon legal tradition but are inapplicable to the traditional pastoral mode of life of the Navajos or the mode of life of the Alaska natives. From a statement in United States v. Alaska, 201 F. Supp. 796 (D. Alaska 1962), the Tribe coins its own standard as to the test to be applied, namely, an "essential to livelihood" concept dependent on the context of the natural environment and life style of the individual Indian or Indian tribe in question, as limited by two criteria suggested by that case and United States v. 10.95 Acres of Land, 75 F. Supp. 841 (D. Alaska 1948): (1) whether the native use and occupation is sufficiently intensive to be considered equivalent, in a tribal context, to the traditional "notorious," June 29, 1973 "exclusive" and "visible" concepts, and (2) whether the native use has been continuous into modern times. The test actually stated by the Court in United States v. Alaska was that the possessory rights "must not only be notorious, exclusive and continuous, but must also be substantial.” 201 F. Supp. at 800. Similar language is used by the court in United States v. 10.95 Acres, adding that the occupancy must be "of such a nature as to leave visible evidence thereof so as to put strangers upon notice that the land is in the use or occupancy of another, and the extent thereof must be reasonably apparent." 75 F. Supp. at 844. The court refused to hold that navigating and anchoring boats and gathering shellfish without more was sufficient, and that there was no "continuity * * * of use or occupancy sufficiently to put a stranger on notice or enable the Court to fix the boundaries or the area thereof as to the defendants or any one of them." Id. The cases, therefore, give the standard of proof suggested by the State. A difficulty with the Tribe's suggested semantical innovation of the standard is that its first suggested limitation as to the "intensity" of tribal occupancy suggests an equivalence to the traditional concepts enunciated in the court cases of "notorious," "exclusive" and "visible," but does not suggest how this limitation differs from that in Santa Fe which required aboriginal tribal occupancy to the exclusion of other tribes. It also does not suggest the degree of intensity of use which would meet the equivalency tests or any differences from them. The State contends that even under the Tribe's proposed test the facts do not meet the suggested standard. The Tribe, however, contends that the lands were used primarily for grazing purposes which use was essential to the livelihood of the Navajos "as a substantial predominant occupant." It contends that the record "conclusively demonstrates that sheep grazing, an essential condition of Navajo life and livelihood, was the dominant use of the areas here in question as of May 1, 1900." (Tribe's Supplemental Brief, p. 14.) It adds that this use has continued over the years. "Indeed, if anything, the use of the lands here in question has probably intensified with the passage of years due to the increase in Navajo population." (Id. at 15-16.) It contends the record shows a pattern of Navajo expansion far north of the San Juan River prior to 1900, *** fueled by population pressures, by drought, by inadequate forage and by semi-starvation. While the record indicates continuing fluctuation of the Navajo-Anglo line of contact, it nonetheless clearly shows that the two sections here in question (one located about three miles and the other about seven miles north of the San Juan River) were well within the perimeter of Navajo use and occupancy both before and after 1900., (Id. at 17.) Because of the nature of the evidence in this case concerning Navajo occupancy the Tribe's position must, at best, rest upon this stated position that the disputed sections were within the perimeter of Navajo use and occupancy as the evidence does not adequately establish actual occupancy of the two disputed sections in 1900. The Tribe asserts it was "a substantial predominant occupant" but not the only occupant of the Aneth extension area. Although the evidence indicates that some Navajos traveled with their flocks of sheep north of the San Juan River prior to 1900, the record also establishes that the same area was used by non-Indians, primarily livestock men, and by Indians from other tribes. Under the Tribe's suggested standard of occupancy, however, apparently concurrent use of the area by non-Indians or other Indians might not be fatal to the Tribe's claim. If the Indian occupancy is to be judged, as the Tribe suggests, by the land "essential to their livelihood" according to the mode of life of the particular Indian group, the use of the Utes and Paiutes traversing through the general area to hunt, pick the wild food, and for those few who had flocks to graze them, would be equally applicable. Would the intensity of their use of hunting or gathering the wild food be less substantial or dominant than the Navajos' grazing where both groups traversed wide areas with only transitory encampments? Or would their cultural differences in types of structures used for their camps as well as the means of their obtaining a livelihood make any difference under the Tribe's sug gested standard? How is the use by non-Indians to be judged? We pose these questions only to show some difficulties with the Tribe's standard as applied to the facts of this case. The Tribe's suggested standard of proof for Indian occupancy to be deemed "held" by any Indian or Indian tribes under the Utah Enabling Act is much less than that imposed by the Supreme Court in Cramer as to an individual Indian who had no reservation, and by the Court in Santa Fe, supra, which prescribed a test of exclusive occupancy for tribal aboriginal title. See also Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347, 368 (1933), appeal dismissed 292 U.S. 606, where no aboriginal possessory right in a tribe was recognized because other tribes traversed the land as well. We adhere to the recognized standard of exclusive occupancy in these cases. We add, with all due respect to the Indian Claims Commission, the record before us does not establish to our satisfaction such occupancy of the Aneth extension area by the Navajo Tribe to the exclusion of other tribes in the area prior to 1868, and as of the time of the Utah Enabling Act and 1900. This leads to the decisive question in this case. Did Congress by the Utah Enabling Act intend to preclude the grant of the school lands to the State under the factual circumstances involved here? We must conclude that it did not. While the Tribe asserts that its aboriginal rights are not involved here, the matter of its Treaty and the extinguishment of the Tribe's June 29, 1973 aboriginal rights are relevant in comprehending the scope of meaning to the words in the Utah Enabling Act. Unlike the situation in Alaska where there was doubt as to the status of native claims to land. and there was a clear manifestation that future legislation would be passed for the acquisition of vested rights, there is no such manifestation expressed in the Enabling Act. Likewise, there are no subsequent acts similar to those involved in Alaska prior to its grant of Statehood specifically recognizing and protecting certain types of occupancy or possessory claims. See, e.g., those pertaining to tidelands discussed in United States v. Alaska, 197 F. Supp. 834 (D. Alaska 1961); or of fishing rights generally, Organized Village of Kaks v. Egan, supra. The Tribe points to no comparable legislation pertaining to Utah prior to the effective date of its grant which would expressly protect occupancy of an area or of a specified type of use by Indians or groups of Indians. Regarding the Utah grant, let us also compare cases stemming from the school grants for the States of Wisconsin and Minnesota which provided for lieu selection rights for sections which were "sold, reserved or disposed of." Where by treaty the United States set aside lands as a reservation for Indians before the survey of the school sections which would vest title in the State, and the Indians remained in occupancy of the lands, the Supreme Court held that such reserved lands were excepted from the state's grants. Wisconsin v. Lane, 245 U.S. 427 (1918); United States v. J. S. Stearns Lumber Co., 245 U.S. 436 (1918); Minnesota v. Hitchcock, 185 U.S. 373 (1902). Likewise, where the Indians were permitted under a treaty to occupy land until required to leave by the President and subsequently by another treaty a reservation of such land was created for them, the Court held the State's title did not vest. Wisconsin v. Hitchcock, 201 U.S. 202 (1906). These cases were prior to the right of Indians to assert claims against the United States. The Court emphasized the alternative available. to the State to select indemnity lands for the school sections, whereas the Indians had no alternative right or relief. However, where the Indians by treaty retained the right of occupancy for a time and there was no subsequent treaty confirming their right to the land and they moved from the land, the state was held to have title to the land rather than a party claiming a patent from the tribe under a statute authorizing the tribe to sell certain lands occupied by it. Beecher v. Wetherby, 95 U.S. 517 (1877). The Court in Beecher and in a railroad grant case, Buttz v. Northern Pac. R.R., 119 U.S. 55 (1886), concluded that Congress intended to transfer the fee subject to the existing recognized occupancy of the Indians only so long as it continued. In United States v. Minnesota, 270 U.S. 181 (1926), the Court held that the State could not be divested |