Slike strani
PDF
ePub

June 29, 1973

(2) Governmental Non-Recognition
of Tribal Rights in the Area
A further difficulty with the
Tribe's position is that the history

of the United States Government's
administration of the area in ques-
tion as reflected in this record does
not show any recognition that the
area was "otherwise disposed of" to
the Tribe or being "held" for the
benefit of the Navajo tribe. The ad-
ministration of the area was incon-
sistent with that notion. Within the

area suggested by the Tribe as the perimeter of its occupancy which was added to the reservation in

1933,32 applications under the public land laws were allowed prior to that time. For example, in 1907 the State of Utah selected section 10, T. 40 S., R. 26 E., contiguous to the McElmo Creek section 16 in question, as school indemnity land. It was clearlisted to the State in 1910 (State Ex. 33). Two patented desert land entries were initiated in 1907 and two others initiated at that time were later cancelled for reasons not pertaining to Indian occupancy (State Exs. 1, 2, 5, 34, 35). See footnote 16, supra, describing Shelton's report on 113 placer mining claims located prior to but within the 1905 extension of the reservation in Utah. Later much of

* Generally for the purpose of this discussion this area has been assumed arguendo as including the area added by the 1933 Aneth Extension Act. At the oral argument counsel for the Tribe would not specify the limits of the area alleged to be within that perimeter, suggesting only that the area found by the Indian Claims Commission to have been within its aboriginal occupancy prior to the 1868 Treaty might be a limit, but not conceding that it would be.

the land in both townships in question was covered by oil and gas permits in the 1920's (State Exs. 2, 4, 5). One application for a permit for the McElmo section in dispute was rejected by the General Land Office stating that the records showed the land to be school land of the State of Utah (State Ex. 5).

Also, the fact that allotments were allowed to Indians in the Montezuma Creek area under section 4 of the General Allotment Act militates against the Tribe's position rather than supports it. Section 4 allotments, in distinction to those made inside reservations under section 1

of the General Allotment Act of 1887, 25 U.S.C. § 331 (1970), were authorized for Indians not residing upon a reservation who made settlement upon public lands "of the United States not otherwise appropriated," 25 U.S.C. § 334 (1970).

This is the antithesis of the Tribe's contention that the lands were "otherwise disposed of" or "held" for the Tribe. In an early contemporaneous construction of section 4 of the General Allotment Act, an opinion by the Assistant AttorneyGeneral, approved by the Secretary of the Interior on June 27, 1899, indicated lands subject to settlement and allotment under that section were not Indian lands subject to the jurisdiction of the Commissioner of Indian Affairs, but were unappropriated public lands falling within the jurisdiction of the Commissioner of the General Land Office, 28 L.D. 564, 568. Therefore, whether the lands sought to be al

lotted were of the character subject to allotment, whether the required settlement had been effected, whether the Indian applicant had a prior and better claim to the land, and was seeking the land in good faith, rather than to obtain it for the benefit of another not entitled thereto, were questions relating to the disposition of the public lands for the General Land Office to decide. The Indian office was to decide only whether the applicant was an Indian and a non-reservation Indian Id.

A letter to the Commissioner of Indian Affairs dated September 29, 1932, by officials of the Indian Office and Navajo Agency investigating the area proposed to be added to the Navajo reservation listed 17 non-Indian homesteads within the proposed addition (Nav. Ex. 616). Three of these were patented, one had been allowed, the others were filed in 1931 or 1932. The letter also listed only nine Navajo Indians (apparently the male heads of the families) within the area proposed to be added to the reservation, with a total of 35 children, and having a total of 2,450 sheep. It also indicated five other heads of families living on Montezuma Creek had stock and had used the proposed addition. It mentioned 14 other Indians who lived outside the proposed area on Montezuma Creek, San Juan River, and Recapture Wash. It indicated that the Indians lived along Montezuma Creek, Recapture Wash, and San Juan River

in the summertime, but ranged their stock and lived on McCracken Mesa in the winter.

The use of McCracken Mesa was mentioned because much of the pressure which led to the 1933 reservation was over complaints by nonIndian stockmen as to as to Indian grazing on McCracken Mesa to the north. An agreement was reached by the stockmen and Indian Office officials to divide the range between Montezuma and Recapture Creeks between the two groups providing the Indians would not use the nonIndians' winter range during the summer and the non-Indians would not use Indian range at anytime (Nav. Exs. 610, 611, 612, 613).

In the Congressional reports on the bill which became the 1933 Act, there is little specific mention about the lands except a statement that they were "used by Indians." H. R. REP. NO. 1883, 72nd Cong., 2d Sess. 3 (1933). Also, on page 44 of a report by Special Commissioner Hager generally regarding Navajos and proposed extensions of the reservation, in S. DOC. NO. 64, 72nd Cong., 1st Sess. (1932), the Aneth area addition of about 51,480 acres is proposed "in order to take care of a number of allotted Indians and other roving Indians in the vicinity." Nothing in the 1933 Act or its legislative history suggests that Congress then did not recognize the State's title in surveyed school sections at that time or that it intended to affect the State's title without action by the State. Instead, section 2

June 29, 1973

of the Act, 47 Stat. 1419, provides that the State of Utah "may relinquish such tracts of school land within the areas added to the Navajo Reservation by section 1 of this Act, as it may see fit in favor of the said Indians." It then provides for lieu selections to be made in the same manner as provided in the Enabling Act, except the payment of fees or commissions is waived. This waiver of fees was explained in the legislative history because the reservation was made to benefit the Government in its administration of the Indians (see Commissioner's report in S. REP. NO. 1199, 72nd Cong., 2d Sess. 3 (1933).

Likewise, the declaration of trust as to public lands within the exterior boundaries of the Navajo reservation for the benefit of the Navajo Tribe in section (d) of the Act of September 2, 1958, 72 Stat. 1687, was made subject to "valid existing rights" and did not purport to affect the existing State title, nor did the Act of November 20, 1963, 77 Stat. 337 (see n. 28). See United States v. Minnesota, supra; see also Navajo Indian Reservation, 30 L.D. 515 (1901), concerning the exclusion of lands occupied by mineral claimants from the May 17, 1884, Executive Order addition to the Navajo reservation in Arizona, leaving them part of the public domain subject to disposal under the general land laws, and cited in John D. Archer, Stephen D. Smoot, 67 I.D. 181 (1960), regarding mining claims

in the 1905 extension in Utah. See also Solicitor's Opinion, 57 I.D. 547 (1942), holding that Indians who had filed section 4 allotment applications prior to the 1933 Act had acquired equitable rights, as the land was then public land not otherwise appropriated, and the 1933 Act did not cut off their rights, which had already vested.

As the archival materials discussed previously establish, prior to and after 1894 and 1900 officials of the Territory and the State of Utah, the citizens in the area, the military officials and Indian Office officials, regarded the general Aneth area outside the established reservation boundaries as public land subject to use and disposition under the public land laws, and not as land which the Government was holding for the benefit and use of the Indians. A proposal that the area be set aside for the Ute Indians in the 1890's was rejected. There was no such proposal for the Navajos although many other proposals for additions to their reservation had been made, most of which were ultimately acted upon. We note that existing legislation in 1894 provided for the protection of land "belonging to any Indian or Indian tribe" by subjecting any person who "drives or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian or Indian tribe, without the consent of such tribe" to a penalty of $1 for each animal of such stock. R.S. § 2117, 25 U.S.C.

33

§ 179 (1970). Likewise, any person who makes settlement

on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees, or otherwise, is liable to a penalty of $1,000.

The President was authorized to use military force if necessary to remove such person from the lands. R.S. § 2118, 25 U.S.C. § 180 (1970). Cf. Act of February 25, 1885, 43 U.S.C. §§ 1061-66 (1970).

Rather than Government officials invoking these provisions to penalize the settlers or the livestock men

who drove their stock throughout the Aneth extension area until the agreement reached in the early 1930's purporting to divide the range between the Indians and the non-Indians prior to the 1933 Act, the right of the non-Indians to make settlements and to use the land as grazing land was recognized. Indeed, prior to 1900 military force was used to return Navajo and Ute Indians in southern Utah to their reservations so they would not disturb non-Indians in the area. This is a further manifestation that there was no Governmental recognition of any occupancy right in the Indians in the area superior to the rights of

33 The word "cattle" was interpreted to include sheep. Ash Sheep Co. v. United States, 252 U.S. 159 (1920). That case interpreted an Act of Congress whereby a tribe ceded lands within an established reservation, and held that because the funds from the sale of the ceded lands were to go to the tribe, they remained within the category of "Indian" lands rather than "public lands" within the meaning of 2117 Revised Statutes. The situation in the present case is different than that in Ash.

third parties, including the State, but that the contrary was true under the policies of that time.

At most, prior to 1900 there were only a few expressions by Indian officials that Indians outside the reservation would have the same rights to graze upon the public lands as the non-Indians, but that they would also be subject to the same laws, including those within the police power of the State, as nonIndians. The special protection and privileges of Indians in the reservation would not prevail outside the reservation. It is not for us to judge in light of modern day concepts of the Government officials prior to civil rights the action or inaction of 1900 with respect to the Navajo Indians in Utah.

Conclusions

It is only necessary to determine whether there were such occupancy or proprietary rights in the Indians recognizable under the law which affected the presumptive vesting of the State's title to these disputed sections in 1900.

We must conclude that the evidence does not establish that there were. In view of the Congressional policy at that time concerning Indians and the acquisition of individual rights outside Indian reservations, any express or implied consent by Indian officials of Indian occupancy outside the reservation could not create tribal rights to the land superior to the grant to the State. Cf. Healing v. Jones, supra; Jane M. Sandoz, supra.

June 29, 1973

The Tribe has referred to the evidence which shows the poor range conditions within the reservation and without, the population increase of the Tribe, the sometimes nearly destitute conditions of the Navajos, and other reasons which caused Navajos to go outside their reservation. In essence its contention with regard to occupancy of land "essential to the livelihood" of the Indians goes to the adequacy of the reservation as it was extended from time to time. We note that the record shows that each time an extension of the reservation was recommended, the recommendation usually indicated that the extended area would be adequate to take care of the needs of the Indians. It is significant that the area including the disputed sections was not added to the reservation until some 33 years after the State's title vested, although other additions had been made to alleviate the problems referred to by the Tribe. With regard to the Tribe's claim of occupancy, we note that recognition of occupancy rights or protection of occupancy rights within the 1933 extension was not even the prime factor leading to the addition to the reservation, but rather the extension was to effectuate a compromise of range conflicts throughout San Juan County, Utah, between Indian and non-Indian grazing users and to make a division of the range. That this division did not work and Najajos continued thereafter to use their preferred range on the McCracken

Mesa is reflected by the Hatahley

case.

As to whether the reservation and the additions thereto were adequate to support the Indians, and as to their grievances generally with regard to whether the United States Government performed its obligations toward them, this Board is not the proper forum to determine such questions, nor can the State's rights depend on the answers to these questions. Congress has provided under the Indian Claims Commission Act that the Tribe's right to any compensation for its relinquished aboriginal lands and unperformed Government obligations shall be determined by the Indian Claims Commission. The Tribe's pending case before that Commission is the appropriate vehicle for resolution of its claims against the United States Government in this regard.

With respect to the Utah Enabling Act, we conclude that there was no additional tribal occupancy right to lands outside the established reservation boundaries recognized under that Act. In the words of Justice Black in Ute Indians v. United States, 330 U.S. 169, 179-80 (1947),

we cannot, under the guise of interpretation create presidential authority where there was none, nor rewrite congressional acts so as to make them mean something they obviously were not intended to mean. Choctaw Nation v. United States, 318 U.S. 423, 431-432. We cannot, under any acceptable rule of interpretation, hold that the Indians owned the lands merely because they thought so.

« PrejšnjaNaprej »