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June 29, 1973

cerning these matters see FED- of individual rights and title to ERAL INDIAN LAW, supra, lands outside the reservation under Chap. XI, B. It is all too evident the terms of the Indian Homestead from the legislative history of the and General Allotment Acts. See Alaska Native Claims Settlement Metlakatla Indians v. Egan, 369 Act of December 18, 1971, 85 Stat. U.S. 45 (1962), comparing the sit688, and the terms of that Act that uation in Alaska with that in the Congress believed the Alaska na- other states, pointing out that few tives might have aboriginal land reservations had been made in claims which had not been extin- Alaska as there had been no need to guished and for which compensa- protect the white settler from the tion had not been allowed under the

peaceful natives as necessary in the Indian Claims Commission Act, 25 other states. Thus, although court U.S.C. 8 70 et seq. (1970). Section 2 interpretations or applications of of the Alaska Native Claims Settle- Alaska native possessory rights ment Act expressly refers to aborig- recognized under the 1884 Act, and inal land claims by natives and na- subsequent acts, including the tive groups, and section 4 (85 Stat. Alaska Statehood Act, are of inter689-90) expressly extinguished all est, these differences must be kept aboriginal titles and claims of abo- in mind because they are reasons riginal title in Alaska based on use for more generous rulings concernand occupancy. 81

ing the protection of native occuThe differences in language be- pancy rights than where treaty restween the Alaska 1884 Act and the ervations had been created for a Utah Enabling Act alone warrant tribe. See an application of this a difference in interpretation. Also, with respect to Departmental reguthe fact at the time the 1884 Act lations to prescribe the necessary was passed there was no clear

occupancy for Alaska natives under policy concerning the Alaska na- the Alaska Native Allotment Act tives or recognition of what rights of May 17, 1906, as amended, 43 they might have differentiates the U.S.C. $S 270–71 (1970). Acting situation there with the situation Solicitor's opinion of September pertaining to the Navajos where 21, 1964, 71 I.D. 340. there had been express provision Thus, as we have held, the words made for them by a reservation and

"owned or held by any Indian or where there also had been express

Indian tribes" in the Utah Ena

bling Act must be considered in statutory provision for the creation

light of the existing situation per31 Section 2(d) of the Act stated :

taining to Utah and the Indians "No provision of this Act shall constitute a in that area. Likewise, the proviprecedent for reopening, renegotiating, or leg

sion in the Alaska 1884 Act that Islating upon any past settlement involving land claims or other matters with any Native "Indians or other persons in said organizations, or any trihe, band, or identifable group of American Indians

district shall not be disturbed in the


possession of any lands actually in pancy is exclusive; notorious; of their use or occupation or such a nature as to leave visible eviclaimed by them" is considered in dence thereof so as to put strangers light of the situation prevailing in on notice that the land is occupied; Alaska at that time. In addition to that the extent of the possession or the fact no general provision had occupancy must be reasonably apbeen made for the Indians either by parent; and it must be substantial. reservations or legislation whereby

As indicated, the Tribe has contitle to the federal lands could tended that the particular type of be acquired, in 1884 the general lifestyle of the Indians involved public land laws applicable to the must be the basis for the standard other territories and states were not

by which the occupancy is recog. extended to Alaska, except the min- nized citing Mitchel v. United ing laws, and the possession of non- States, su pra, and United States v. Indians as well as Alaska natives Santa Fe Pacific R.R. Co.. supra. was therefore protected by the Act

These cases, as the Director indias well. In addition to the then cated, pertained to aboriginal tribal unresolved question as to any abo- occupancy, Santa Fe expressly used riginal native claims which pre

a standard of "exclusive” occuvailed, there was the analogous pancy. The Tribe states that words question of rights of non-Indian

such as “exclusive" and "notorious" settlers, occupants and users of the are rich in meaning in Anglo-Saxon land, and the Act broadly provided legal tradition but are inapplicable for the non-disturbance of all in to the traditional pastoral mode of that category as of 1884. Cf. Heck- life of the Navajos or the mode of man v. Sutter, 119 F. 83 (9th Cir.

life of the Alaska natives. 1902); Russian American Co. v.


a statement in United United States, 199 U.S. 570 (1905). States v. Alaska, 201 F. Supp. 796 That Act arose out of different cir- (D. Alaska 1962), the Tribe coins cumstances from the Utah Eva

in standard as to the test to be bling Act and may not be construed

construed applied, namely, an "essential to in pari materia with it. Cf. Acting

livelihood” concept dependent on Solicitor's Opinion of September

the context of the natural environ21.196.4, supra.

ment and life style of the individual As to the standard of occupancy

Indian or Indian tribe in question, required for recognition of the as limited by two criteria suggested Indians' occupancy rights the Tribe by that case and United States v. attempts to find analogies in the 10.95 Acres of Land, 75 F. Supp. facts of the cases pertaining to 841 (D. Alaska 1948): (1) whether Alaska natives. The State, however, the native use and occupation is contends that the standards sufficiently intensive to be conenunciated by these cases require sidered' equivalent, in a tribal"conproof that the possession or occu- text, to the traditional "notorious,"

its or

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June 29, 1973

"exclusive” and “visible" concepts, the degree of intensity of use which and (2) whether the native use has would meet the equivalency tests or been continuous into modern times. any differences from them.

The test actually stated by the The State contends that even Court in United States v. Alaska under the Tribe's proposed test the was that the possessory rights facts do not meet the suggested "must not only be notorious, exclu- standard. The Tribe, however, consive and continuous, but must also tends that the lands were used pribe substantial.” 201 F. Supp. at 800. marily for grazing purposes which Similar language is used by the use was essential to the livelihood court in United States v. 10.95 of the Navajos "as a substantial Acres, adding that the occupancy predominant occupant.” It contends must be “of such a nature as to leave that the record “conclusively demvisible evidence thereof so as to put onstrates that sheep grazing, an strangers upon notice that the land

essential condition of Navajo life is in the use or occupancy of an- and livelihood, was the dominant other, and the extent thereof must use of the areas here in question as be reasonably apparent.” 75 F. of May 1, 1900.” (Tribe's SuppleSupp. at 844. The court refused to mental Brief, p. 14.) It adds that hold that navigating and anchoring this use has continued over the boats and gathering shellfish with- years. "Indeed, if anything, the use out more was sufficient, and that of the lands here in question has there was no "continuity *** of probably intensified with the pasuse or occupancy sufficiently to put a sage of years due to the increase in stranger on notice or enable the Navajo population.(Id. at 15–16.) Court to fix the boundaries or the It contends the record shows a patarea thereof as to the defendants or tern of Navajo expansion far north any one of them.” Id. The cases, of the San Juan River prior to 1900, therefore, give the standard of

* * * fueled by population pressures, by proof suggested by the State.

drought, by inadequate forage and by A difficulty with the Tribe's sug- semi-starvation. While the record indigested semantical innovation of the cates continuing fluctuation of the Navstandard is that its first suggested ajo-Anglo line of contact, it nonetheless

clearly shows that the two sections here limitation as to the "intensity” of

in question (one located about three tribal occupancy suggests an equiv- miles and the other about seven miles alence to the traditional concepts north of the San Juan River) were well enunciated in the court cases of within the perimeter of Navajo use and "notorious," "exclusive” and “visi- occupancy both before and after 1900.

(Id. at 17.) ble," but does not suggest how this limitation differs from that in Because of the nature of the eviSanta Fe which required aboriginal dence in this case concerning Navtribal occupancy to the exclusion of ajo occupancy the Tribe's position other tribes. It also does not suggest must, at best, rest upon this stated

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position that the disputed sections gested standard? How is the use by were within the perimeter of Nav- non-Indians to be judged? We pose ajo use and occupancy as the evi- these questions only to show some dence does not adequately establish difficulties with the Tribe's standard actual occupancy of the two dis- as applied to the facts of this case. puted sections in 1900. The Tribe The Tribe's suggested standard of asserts it was "a substantial pre- proof for Indian occupancy to be dominant occupant” but not the deemed "held" by any Indian or only occupant of the Aneth exten- Indian tribes under the Utah Ension area. Although the evidence abling Act is much less than that indicates that some Navajos trav- imposed by the Supreme Court in eled with their flocks of sheep north Cramer as to an individual Indian of the San Juan River prior to 1900, who had no reservation, and by the the record also establishes that the Court in Santa Fe, supra, which same area was used by non-Indians, prescribed a test of exclusive occuprimarily livestock men, and by pancy for tribal aboriginal title. Indians from other tribes.

See also Assiniboine Indian Tribe v. Under the Tribe's suggested United States, 77 Ct. Cl. 347, 368 standard of occupancy, however, (1933), appeal dismissed 292 U.S. apparently concurrent use of the 606, where no aboriginal possessory area by non-Indians or other Indi- right in a tribe was recognized beans might not be fatal to the Tribe's cause other tribes traversed the land claim. If the Indian occupancy is as well. We adhere to the recognized to be judged, as the Tribe suggests, standard of exclusive occupancy in by the land "essential to their liveli- these cases. We add, with all due rehood” according to the mode of life spect to the Indian Claims Commisof the particular Indian group, the sion, the record before us does not use of the Utes and Paiutes travers- establish to our satisfaction such ing through the general area to occupancy of the Aneth extension hunt, pick the wild food, and for area by the Navajo Tribe to the exthose few who had flocks to graze clusion of other tribes in the area them, would be equally applicable. prior to 1868, and as of the time of Would the intensity of their use of the Utah Enabling Act and 1900. hunting or gathering the wild food

This leads to the decisive question in be less substantial or dominant than

this case. Did Congress by the Utah

Enabling Act intend to preclude the Navajos' grazing where both

the grant of the school lands to the groups traversed wide areas with

State under the factual circumonly transitory encampments? Or

stances involved here? We must conwould their cultural differences in

clude that it did not. types of structures used for their

While the Tribe asserts that its camps as well as the means of their aboriginal rights are not involved obtaining a livelihood make any here, the matter of its Treaty and difference under the Tribe's sug- the extinguishment of the Tribe's June 29, 1973 aboriginal rights are relevant in were excepted from the state's comprehending the scope of mean- grants. Wisconsin v. Lane, 245 U.S. ing to the words in the Utah En- 427 (1918); United States v. J. S. abling Act. Unlike the situation in Stearns Lumber Co., 245 U.S. 436 Alaska where there was doubt as to (1918); Minnesota v. Hitchcock, the status of native claims to land 185 U.S. 373 (1902). Likewise, and there was a clear manifestation where the Indians were permitted that future legislation would be under a treaty to occupy land until passed for the acquisition of vested required to leave by the President rights, there is no such manifesta- and subsequently by another treaty tion expressed in the Enabling Act. a reservation of such land was creLikewise, there are no subsequentated for them, the Court held the acts similar to those involved in State's title did not vest. Wisconsin Alaska prior to its grant of State- v. Hitchcock, 201 U.S. 202 (1906). hood specifically recognizing and These cases were prior to the right protecting certain types of occu

of Indians to assert claims against pancy or possessory claims. See, e.g., the United States. The Court emthose pertaining to tidelands dis- phasized the alternative available cussed in United States v, Alaska, to the State to select indemnity 197 F. Supp. 834 (D. Alaska 1961);

lands for the school sections, whereor of fishing rights generally, Orga- as the Indians had no alternative nized Village of Kaks v. Egan, right or relief. However, where the supra. The Tribe points to no com- Indians by treaty retained the right parable legislation pertaining to of occupancy for a time and there Utah prior to the effective date of was no subsequent treaty confirming its grant which would expressly their right to the land and they protect occupancy of an area or of moved from the land, the state was a specified type of use by Indians held to have title to the land rather or groups of Indians.

than a party claiming a patent from Regarding the Utah grant, let us the tribe under a statute authorizing also compare cases stemming from the tribe to sell certain lands occuthe school grants for the States of pied by it. Beecher v. Wetherby, 95

. Wisconsin and Minnesota which U.S. 517 (1877). The Court in provided for lieu selection rights Beecher and in a railroad grant case, for sections which were "sold, re- Buttz v. Northern Pac. R.R., 119 served or disposed of.” Where by U.S. 55 (1886), concluded that Contreaty the United States set aside gress intended to transfer the fee lands as a reservation for Indians subject to the existing recognized before the survey of the school sec- occupancy of the Indians only so tions which would vest title in the long as it continued. State, and the Indians remained in In United States v. Minnesota, occupancy of the lands, the Supreme 270 U.S. 181 (1926), the Court held Court held that such reserved lands that the State could not be divested

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