of its right and title to lands previously granted to it under its swamp land grant even to benefit Indians, where Indian reservations were created by treaty thereafter, although a reservation prior to the grant excepted such lands from the grant. From these cases, it is clear that if tribal rights are terminated by relinquishment in a treaty or are abandoned, a state may take the grant unencumbered with a claim of occupancy rights in the Indians, and if the state's title has vested, subsequent action by Congress to create a reservation for Indians cannot affect the state's title. However, if a reservation has been created prior to the grant, the lands are reserved and the state's title cannot vest until the reservation is extinguished. These cases support our conclusion that lands within the established reservation boundaries for the Navajo Tribe did not pass to the state, but lands outside those boundaries were not excepted from the grant or held in abeyance. d. Other Historical Factors Pertaining to State Grants and Indian Occupancy (1) Legislative Framework of Laws The Congressional framework of laws generally pertaining to state school grants and indemnity selections in lieu of the school sections also militates against the construction which the Tribe suggests. By the Act of February 28, 1891, amending earlier legislation, R.S. §§ 2275, 2276, 43 U.S.C. §§ 851, 852 (1970), and as expressly extended to Utah by the Act of May 3, 1902, 43 U.S.C. § 853 (1970), states were permitted to select other lands where school sections prior to survey were included within any Indian reservation, although the state could await extinguishment of the reservation and then take the sections in place. The Act required the Secretary of the Interior, without awaiting the extension of the public surveys, to determine by protraction or otherwise the number of townships that would be included in such reservations so that a state may determine the number of sections it could select on a section for section basis. Obviously Congress was not envisaging at that time, when many reservations had been set apart for Indian tribes throughout the country, recognition of tribal rights outside the established reservation boundaries of tribes who had reservations. See Northwestern Bands of Shoshone Indians v. United States, supra. The history of Congressional treatment of Indians is contrary to any such recognition at that time when there was a general policy to assimilate the Indians and to reduce the established reservation areas so that they could be opened for disposition under the public land laws. The fact that the Navajo reservation was enlarged periodically, rather than reduced, does not signify any difference in Congressional intent in 1894 toward the Navajo Tribe under the Utah Enabling Act. Navajo tribal occupancy outside the original Navajo reservation was only recognized after withdrawals of land in behalf of the Tribe and June 29, 1973 clear administrative action under the terms of such withdrawals. Healing v. Jones, supra. Note that by Executive Order of November 14, 1901, certain lands in Arizona were "withdrawn from sale and settlement until such time as the [Navajo] Indians residing thereon shall have been settled permanently under the provisions of the homestead laws or the general allotment act * * * Of similar effect are two other withdrawals for the Navajos, Executive Order of May 17, 1917, for lands in Arizona and Executive Order of January 19, 1918, for lands in New Mexico. These orders show an intent by the President and the Administration at that time and as late as 1918, to protect individual Navajo occupancy by a withdrawal until the lands could be disposed of to the individuals, rather than to benefit the Tribe as an entity then. Compare these orders with the 1905 Executive Order pertaining to Utah. Of course, no such withdrawal was made for the area in question here until 32 years after the State's title vested, which supports an inference against any governmental recognition of Indian occupancy rights in the area, apart from any that could be acquired by individual Indians in compliance with the settlment laws. Other than its contentions regarding the Utah Enabling Act, the Tribe has referred to no legislation, and none has come to our attention, whereby the Tribe could acquire a possessory or proprietary interest in lands outside its reservation boundaries at that time. We have indicated, however, that individual Indians outside reservations could acquire interests in land by compliance with specific statutes, the Indian Homestead Act or section 4 of the General Allotment Act. Those acts have been construed in pari materia, United States v. Jackson, supra. The Act of February 28, 1891, provided also that where settlements had been made before survey with a view to preemption or homestead the grant to the State was subject to the claims of the settlers, and lieu selections could be made for such lands and could also be made where other school sections were "otherwise disposed of by the United States." Under this and the Utah Enabling Act the State could take indemnity for lands in Indian homesteads or which had been alloted under the General Allotment Act. In interpreting the 1891 Act providing for lieu selections, the Department concluded that as to mere settlements made with a view to preemption or homestead, the State's school grant would be held subject to the settlement and the State could claim the land in place in case the settler failed to perfect his claim, or the State could select other land to satisfy any loss occasioned by the claim. If, however, the lands were within existing allowed entries, they came within the excepting phrase "otherwise disposed of" and the State would have to select other lands as indemnity as the grant would not attach if the entry were subsequently canceled. State of Utah (On Petition), 47 L.D. 359 (1920). A settlement initiated after the survey of the school section could not affect a state's grant. Fannie Lipscomb, 44 L.D. 414 (1915). See also Hamilton v. State of California, 45 L.D. 471 (1916), which held that possession and improvement of a tract of unsurveyed land by one who at the date of the survey was then disqualified to make a desert land entry did not except the tract from the school grant to the State. Compare Herbert H. Hilscher, 67 I.D. 410 (1960), involving a conflict between an Alaska native and a homestead settler. The native claimed she had lived upon the disputed tract years before with her parents but for the last 10 to 15 years her only occupancy of the tract was storage of a boat. This was deemed insufficient to defeat the intervening claim. In Tillie Buth, 46 L.D. 494 (1918), a homestead claimant's settlement was held not to constitute a valid adverse appropriation preventing a state selection of her claim as she had not complied with the homestead law and did not "seasonably" assert her rights. Therefore, her laches and the intervening state selection defeated her application. These rulings that a State's grant vests where a settlement claim is not perfected apply to settlement claims of Indians under the Indian Homestead and General Allotment Acts. Although the Tribe contends that cases involving homestead or preemption settlers have no bearing on Indian rights, it has long been rec ognized that the Indian Homestead Act and section 4 of the General Allotment Act are settlement statutes and part of the framework of laws pertaining to the public lands. The practice, rules and decisions governing white settlers on the public lands are with certain reasonable modifications due to the habits, character, and disposition of the race, equally applicable to Indian settlers. Lacey v. Grondorf, 38 L.D. 553, 555 (1910). That case pointed out that Indian settlers on public lands are not in the same situation as are allottees of tribal lands where rights flow from some specific act for the division of tribal property, but are on practically the same footing as white settlers on the public lands. Id. and cf. Acting Solicitor's Opinion of September 21, 1964, 71 I.D. 340, ruling that the Alaska Native Allotment Act should not be construed in pari materia with section 4 of the General Allotment Act as the latter act required a "settlement" whereas the former Act gave a preference right for lands "occupied" by a native. As to section 4 of the General Allotment Act, it was stated in Martha Head, 48 L.D. 567, 571 (1922), An Indian no more has a vested right to an allotment on the public domain than has a homesteader under the general homestead laws prior to the performance of certain required conditions in the absence of such legislation * an Indian would not be entitled to apply for public lands. Accord, Clark, Jr. v. Benally, 51 L.D. 91, on rehearing, 51 L.D. 98, 101 (1925), which construed section 4 of the General Allotment Acts as June 29, 1978 one of the nonmineral land laws. Benally was a Navajo who chose land described by the Department as not too advantageous for agricultural or grazing purposes, but the best grazing land in San Juan County. The Department held it was without authority arbitrarily to deny the allotment on the ground the land was too poor in quality. But see, since the enactment of the Taylor Grazing Act requiring classification of lands before settlement, cases reaching an opposite conclusion on the question of the Secretary's authority to deny an allotment of land which would not constitute an economic agricultural unit for an Indian family. Finch v. United States, 387 F.2d 13 (10th Cir. 1967), cert. denied 390 U.S. 1012 (1968); Hopkins v. United States, 414 F.2d 464 (9th Cir. 1969); but cf. United States v. Arenas, 158 F.2d 730 (9th Cir. 1947), cert. denied 331 U.S. 842. Although in Cramer and Schumacher, allotment applications had not been filed at the time of the grant to the third party, substantial improvements were alleged and permanent settlement made prior to the time of the vesting of the grant. In these cases the Court and the Department recognized substantial equities in the individual Indian settler and applied general principles of law which have pertained to non-Indian settlers, as well as recognizing the strong protective policy toward Indian occupants. Thus, Cramer applied a general principle regarding possession without color of title in limiting the rights of the Indians to the land enclosed and improved. In Nav. Ex. 245, the Commissioner of the Indian Office in 1887, in response to a New Mexico attorney's question as to whether a white man could enter land in the possession of a Navajo outside the reservation referred to the General Land Office Circular of May 31, 1884, quoted previously and then quoted from Atherton v. Fowler, 96 U.S. (6 Otto) 513, 519 (1877), which involved conflicting preemption claimants: * The generosity by which Congress gave the settler the right of pre emption was not intended to give him the benefit of another man's labor, and authorize him to turn that man and his family out of their home. It did not propose to give its bounty to settlements obtained by violence at the expense of others. The right to make a settlement was to be exercised on unsettled land; to make improvements on unimproved land. To erect a dwelling-house did not mean to seize some other man's dwelling. It had reference to vacant land, to unimproved land; and it would have shocked the moral sense of the men who passed these laws, if they had supposed that they had extended an invitation to the pioneer population to acquire inchoate rights to the public lands by trespass, by, by violence, by robbery, by acts leading to homicides, and other crimes of less moral turpitude. This is the essential spirit of the protection also afforded in Cramer, Schumacher and Ma-Gee-See, and recognized by Congress by section 3 of the Act of February 25, 1885, 43 U.S.C. § 1063 (1970). As the Tribe's exhibits of archival materials reflects, where a Navajo occupant made a substantial and perma nent settlement on land outside the reservation constructing improvements and providing for himself on his settlement, notices were sent to the land offices of their occupancy, or notices were given to the individual Indians to show to anyone who might question their right to be outside the reservation or interfere with them. Although under section 4 of the General Allotment Act an Indian who had made settlement upon public land could acquire for himself or his minor children a maximum of 160 acres of grazing land for each one, no applications have ever been filed for these lands, although descendants of several of the Indians upon whom the Tribe relies as occupants of the area at the turn of the century were allotted lands. No matter how inadequate 160 acres of grazing land in that area may be, that was the maximum allowable at that time by Congress. Grazing of open, unreserved public land as stated in Buford v. Houtz, supra, was then permitted generally with the implied consent of the United States. Such grazing use prior to the Taylor Grazing Act created no vested interests in the land. Jane M. Sandoz, 60 I.D. 63, 66 (1947). In the absence of any application for an allotment by an Indian in due time to perfect any inchoate settlement rights under the Indian Homestead Act or General Allotment Act to protect only a grazing use, the State's title vested as of 1900. Cf. Tarpey v. Madsen, 178 U.S. 215 (1900); John David Smith, A-28829 (September 17, 1962). Note that the regulations pertaining to section 4 allotments provide that allotments are allowable only to living persons or those in being at the date of application. Where an Indian dies after settlement and filing of application, but prior to approval, the allotment will upon final approval be conformed to the heirs of the deceased allottee. 43 CFR 2531.1(c) (1). We find there were no permanent structures built upon these disputed sections as of 1900 and the facts are far different from those in Cramer, Schumacher and Ma-Gee-See where there was permanent and substantial occupancy by an Indian seeking protection of his rights. The evidence does not adequately establish that the disputed sections were ever settled upon permanently by identifiable Indians, but at most were only occupied for summer grazing camps in a transitory manner after 1900, as one of many sites occupied by the same few individuals. We know of no basis under the facts in this case whereby the State could have made an indemnity selection for these lands in the absence of an application by an Indian or non-Indian under the public land laws merely because either may have used the disputed sections for grazing purposes, until the Aneth Extension Act of 1933 authorized such selections under its terms. Cf. Solicitor's Opinion of December 28, 1922, 49 L.D. 376. |