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of its right and title to lands previ- 43 U.S.C. § 853 (1970), states were ously granted to it under its swamp permitted to select other lands land grant even to benefit Indians, where school sections prior to surwhere Indian reservations were cre- vey were included within

any

Inated by treaty thereafter, although dian reservation, although the state a reservation prior to the grant ex- could await extinguishment of the cepted such lands from the grant. reservation and then take the secFrom these cases, it is clear that tions in place. The Act required the if tribal rights are terminated by Secretary of the Interior, without relinquishment in a treaty or are awaiting the extension of the public abandoned, a state may take the surveys, to determine by protraction grant unencumbered with a claim or otherwise the number of townof occupancy rights in the Indians, ships that would be included in such and if the state's title has vested, reservations so that a state may desubsequent action by Congress to

termine the number of sections it create a reservation for Indians can- could select on a section for section not affect the state's title. However, basis. Obviously Congress was not if a reservation has been created envisaging at that time, when many prior to the grant, the lands are re- reservations had been set apart for served and the state's title cannot

Indian tribes throughout the counvest until the reservation is extin- try, recognition of tribal rights outguished. These cases support our

side the established reservation conclusion that lands within the boundaries of tribes who had resestablished reservation boundaries ervations. See Northwestern Bands for the Navajo Tribe did not pass to of Shoshone Indians v. United the state, but lands outside those States, supra. boundaries were not excepted from

The history of Congressional the grant or held in abeyance.

treatment of Indians is contrary to

any such recognition at that time d. Other Historical Factors Per

when there was a general policy to taining to State Grants and In

assimilate the Indians and to reduce dian Occupancy

the established reservation areas so (1) Legislative Framework of Lanos

that they could be opened for disThe Congressional framework of position under the public land laws. laws generally pertaining to state The fact that the Navajo reservaschool grants and indemnity selec- tion was enlarged periodically, tions in lieu of the school sections rather than reduced, does not sigalso militates against the construc- nify any difference in Congressional tion which the Tribe suggests. By intent in 1894 toward the Navajothe Act of February 28, 1891, Tribe under the Utah Enabling Act. amending earlier legislation, R.S. Navajo tribal occupancy outside the $$ 2275, 2276, 43 U.S.C. SS 851, 852 original Navajo reservation was (1970), and as expressly extended only recognized after withdrawals to Utah by the Act of May 3, 1902, of land in behalf of the Tribe and

June 29, 1973

*

*

clear administrative action under boundaries at that time. We have the terms of such withdrawals. indicated, however, that individual Healing v. Jones, supra.

Indians outside reservations could Note that by Executive Order of acquire interests in land by comNovember 14, 1901, certain lands in pliance with specific statutes, the In

, Arizona were "withdrawn from sale dian Homestead Act or section 4 of and settlement until such time as the General Allotment Act. Those the [Navajo] Indians residing acts have been construed in pari mathereon shall have been settled per- teria, United States v. Jackson, manently under the provisions of supra. The Act of February 28, 1891, the homestead laws or the general provided also that where settleallotment act *"' Of similar ments had been made before survey effect are two other withdrawals for with a view to preemption or homethe Navajos, Executive Order of stead the grant to the State was subMay 17, 1917, for lands in Arizona ject to the claims of the settlers, and and Executive Order of January 19, lieu selections could be made for 1918, for lands in New Mexico. such lands and could also be made These orders show an intent by the where other school sections were President and the Administration "otherwise disposed of by the at that time and as late as 1918, to United States.” Under this and the protect individual Navajo occu- Utah Enabling Act the State could pancy by a withdrawal until the

take indemnity for lands in Indian lands could be disposed of to the in- homesteads or which had been aldividuals, rather than to benefit the loted under the General Allotment Tribe as an entity then. Compare Act. these orders with the 1905 Executive In interpreting the 1891 Act proOrder pertaining to Utah. Of viding for lieu selections, the Decourse, no such withdrawal was partment concluded that as to mere made for the area in question here settlements made with a view to until 32 years after the State's title preemption homestead, the vested, which supports an inference State's school grant would be held against any governmental recogni- subject to the settlement and the tion of Indian occupancy rights in State could claim the land in place the area, apart from any that could in case the settler failed to perfect be acquired by individual Indians in his claim, or the State could select compliance with the settlment laws. other land to satisfy any loss occa

Other than its contentions regard- sioned by the claim. If, however, the ing the Utah Enabling Act, the lands were within existing allowed Tribe has referred to no legislation, entries, they came within the exceptand none has come to our attention, ing phrase "otherwise disposed of" whereby the Tribe could acquire a and the State would have to select possessory or proprietary interest other lands as indemnity as the in lands outside its reservation grant would not attach if the entry

or

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were subsequently canceled. State of ognized that the Indian Homestead Utah (on Petition), 47 L.D. 359 Act and section 4 of the General (1920). A settlement initiated after Allotment Act are settlement statthe survey of the school section

utes and part of the framework of could not affect a state's grant. Fan- laws pertaining to the public lands. nie Lipscomb, 44 L.D. 414 (1915).

The practice, rules and decisions govSee also Hamilton v. State of Cali- erning white settlers on the public lands fornia, 45 L.D. 471 (1916), which are with certain reasonable modifications held that possession and improve

due to the habits, character, and disposiment of a tract of unsurveyed land

tion of the race, equally applicable to

Indian settlers. Lacey V. Grondorf, 38 by one who at the date of the survey

L.D. 553, 555 (1910). was then disqualified to make a desert land entry did not except the

That case pointed out that Indian

settlers on public lands are not in tract from the school grant to the

the same situation as are allottees State. Compare Herbert H. Hils

of tribal lands where rights flow cher, 67 I.D. 410 (1960), involving a conflict between an Alaska native

from some specific act for the divi

sion of tribal property, but are on and a homestead settler. The native

a claimed she had lived upon the dis- practically the same footing as puted tract years before with her

white settlers on the public lands.

Id. and cf. Acting Solicitor's Opinparents but for the last 10 to 15

ion of September 21, 1964, 71 I.D. years her only occupancy of the tract was storage of a boat. This was

340, ruling that the Alaska Native deemed insufficient to defeat the in

Allotment Act should not be contervening claim. In Tillie Buth, 46

strued in pari materia with section

4 of the General Allotment Act as L.D. 494 (1918), a homestead claimant's settlement was held not to con

the latter act required a "settlestitute a valid adverse appropria

ment” whereas the former Act gave tion preventing a state selection of

a preference right for lands "occu

4 her claim as she had not complied pied” by a native. As to section 4 of

the General Allotment Act, it was with the homestead law and did not "seasonably" assert her rights.

stated in Martha Head, 48 L.D. 567, Therefore, her laches and the inter

571 (1922), vening state selection defeated her An Indian no more has a vested right application. These rulings that a

to an allotment on the public domain

than has a homesteader under the genState's grant vests where a settle

eral homestead laws prior to the performment claim is not perfected apply to

ance of certain required conditions * settlement claims of Indians under in the absence of such legislation the Indian Homestead and General an Indian would not be entitled to apply Allotment Acts.

for public lands. Although the Tribe contends that Accord, Clark, Jr. v. Benally, 51 Cases involving homestead or pre- L.D. 91, on rehearing, 51 L.D. 98, emption settlers have no bearing on 101 (1925), which construed section Indian rights, it has long been rec- 4 of the General Allotment Acts as

June 29, 1973

one of the nonmineral land laws. without color of title in limiting the Benally was a Navajo who chose rights of the Indians to the land land described by the Department enclosed and improved. In Nav. Ex. as not too advantageous for agricul- 245, the Commissioner of the Indian tural or grazing purposes, but the Office in 1887, in response to a New best grazing land in San Juan Mexico attorney's question as to County. The Department held it whether a white man could enter was without authority arbitrarily land in the possession of a Navajo to deny the allotment on the ground outside the reservation referred to the land was too poor in quality. the General Land Office Circular of But see, since the enactment of the May 31, 1884, quoted previously and Taylor Grazing Act requiring clas- then quoted from Atherton v. Fowsification of lands before settlement, ler, 96 U.S. (6 Otto) 513, 519 cases reaching an opposite conclu- (1877), which involved conflicting sion on the question of the Secre- preemption claimants: tary's authority to deny an allot

The generosity by which Conment of land which would not con

gress gave the settler the right of prestitute an economic agricultural emption was not intended to give him the unit for an Indian family. Finch v. benefit of another man's labor, and auUnited States, 387 F.2d 13 (10th

thorize him to turn that man and his

family out of their home. It did not proCir. 1967), cert. denied 390 U.S.

pose to give its bounty to settlements ob1012 (1968); Hopkins v. United tained by violence at the expense of States, 414 F.2d 464 (9th Cir. 1969); others. The right to make a settlement but cf. United States v. Arenas, 158

was to be exercised on unsettled land; to F.2d 730 (9th Cir. 1947), cert.

make improvements on unimproved land. denied 331 U.S. 842.

To erect a dwelling-house did not mean to

seize some other man's dwelling. It had Although in Cramer and Schu

reference to vacant land, to unimproved macher, allotment applications had land; and it would have shocked the not been filed at the time of the moral sense of the men who passed these grant to the third party, substantial

laws, if they had supposed that they had

extended an invitation to the pioneer popimprovements were alleged and

ulation to acquire inchoate rights to the permanent settlement made prior to

public lands by trespass, by, by violence, the time of the vesting of the grant. by robbery, by acts leading to homicides, In these cases the Court and the De- and other crimes of less moral turpitude. partment recognized substantial This is the essential spirit of the equities in the individual Indian protection also afforded in Cramer, settler and applied general prin- Schumacher and Ma-Gee-See, and ciples of law which have pertained recognized by Congress by section to non-Indian settlers, as well as 3 of the Act of February 25, 1885, recognizing the strong protective 43 U.S.C. $ 1063 (1970). As the policy toward Indian occupants. Tribe's exhibits of archival mateThus, Cramer applied a general rials reflects, where a Navajo occuprinciple regarding possession pant made a substantial and perma

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nent settlement on land outside the U.S. 215 (1900); John David reservation constructing improve- Smith, A-28829 (September 17, ments and providing for himself on 1962). Note that the regulations his settlement, notices were sent to pertaining to section 4 allotments the land offices of their occupancy, provide that allotments or notices were given to the indi

are allowable only to living persons or vidual Indians to show to anyone those in being at the date of application. who might question their right to be Where an Indian dies after settlement outside the reservation or interfere and filing of application, but prior to with them.

approval, the allotment will upon final

approval be conformed to the heirs of Although under section 4 of the

the deceased allottee. 43 CFR 2531.1(c) General Allotment Act an Indian (1). who had made settlement upon pub- We find there were no permanent lic land could acquire for himself structures built upon these disputed or his minor children a maximum

sections as of 1900 and the facts are of 160 acres of grazing land for far different from those in Cramer, each one, no applications have ever Schumacher and Ma-Gee-See where been filed for these lands, although there was permanent and substandescendants of several of the Indi- tial occupancy by an Indian seekans upon whom the Tribe relies as

ing protection of his rights. The occupants of the area at the turn of

evidence does not adequately estabthe century were allotted lands. No

lish that the disputed sections were matter how inadequate 160 acres of ever settled upon permanently by grazing land in that area may be, identifiable Indians, but at most that was the maximum allowable at

were only occupied for summer that time by Congress. Grazing of grazing camps in a transitory man

a open, unreserved public land as ner after 1900, as one of many sites stated in Buford v. Houtz, supra, occupied by the same few individwas then permitted generally with uals. the implied consent of the United We know of no basis under the States. Such grazing use prior to facts in this case whereby the State the Taylor Grazing Act created no could have made an indemnity sevested interests in the land. Jane M. lection for these lands in the abSandoz, 60 I.D. 63, 66 (1947). In

sence of an application by an Indian the absence of any application for or non-Indian under the public land an allotment by an Indian in due laws merely because either may time to perfect any inchoate settle- have used the disputed sections for ment rights under the Indian

the Indian grazing purposes, until the Aneth Homestead Act or General Allot- Extension Act of 1933 authorized ment Act to protect only a grazing such selections under its terms. Cf. use, the State's title vested as of Solicitor's Opinion of December 28, 1900. Cf. Tarpey v. Madsen, 178 1922, 49 L.D. 376.

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