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June 29, 1973

(2) Governmental Non-Recognition the land in both townships in quesof Tribal Rights in the Area tion was covered by oil and gas per

mits in the 1920's (State Exs. 2, 4, A further difficulty with the Tribe's position is that the history 5). One application for a permit

for the McElmo section in dispute of the United States Government's administration of the area in ques

was rejected by the General Land tion as reflected in this record does

Office stating that the records

showed the land to be school land not show any recognition that the area was "otherwise disposed of” to

of the State of Utah (State Ex. 5). the Tribe or being "held” for the

Also, the fact that allotments were

allowed to Indians in the Montebenefit of the Navajo tribe. The administration of the area was incon

zuma Creek area under section 4 of sistent with that notion. Within the

the General Allotment Act militates area suggested by the Tribe as the against the Tribe's position rather perimeter of its occupancy which

than supports it. Section 4 allotwas added to the reservation in

ments, in distinction to those made

inside reservations under section 1 1933,32 applications under the public land laws were allowed prior to

of the General Allotment Act of that time. For example, in 1907 the

1887, 25 U.S.C. & 331 (1970), were State of Utah selected section 10,

authorized for Indians not residing T. 40 S., R. 26 E., contiguous to the

upon a reservation who made settleMcElmo Creek section 16 in ques

ment upon public lands of the tion, as school indemnity land. It

United States not otherwise approwas clearlisted to the State in 1910 priated,” 25 U.S.C. § 334 (1970). (State Ex. 33). Two patented des

This is the antithesis of the Tribe's ert land entries were initiated in

contention that the lands were 1907 and two others initiated at "otherwise disposed of” or “held" that time were later cancelled for

for the Tribe. In an early contemporeasons not pertaining to Indian

raneous construction of section 4 of occupancy (State Exs. 1, 2, 5, 34, the General Allotment Act, an 35). See footnote 16, supra, describ- opinion by the Assistant Attorneying Shelton's report on 113 placer General, approved by the Secretary mining claims located prior to but

of the Interior on June 27, 1899, inwithin the 1905 extension of the

dicated lands subject to settlement reservation in Utah. Later much of

and allotment under that section

were not Indian lands subject to 12 Generally for the purpose of this discussion this area has been assumed arguendo as

the jurisdiction of the Commisincluding the area added by the 1933 Aneth sioner of Indian Affairs, but were Extension Act. At the oral argument counsel for the Tribe would not specify the limits of

unappropriated public lands falling the area alleged to be within that perimeter, within the jurisdiction of the Comsuggesting only that the area found by the Indian Claims Commission to have been within

missioner of the General Land Its aboriginal occupancy prior to the 1868 Office, 28 L.D. 564, 568. Therefore, Treaty might be a limit, but not conceding that it would be.

whether the lands sought to be al

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lotted were of the character subject in the summertime, but ranged their to allotment, whether the required stock and lived on McCracken Mesa settlement had been effected, wheth- in the winter. er the Indian applicant had a prior The use of McCracken Mesa was and better claim to the land, and was mentioned because much of the presseeking the land in good faith, sure which led to the 1933 reservarather than to obtain it for the bene- tion was over complaints by nonfit of another not entitled thereto, Indian stockmen to Indian were questions relating to the dis- grazing on McCracken Mesa to the position of the public lands for the north. An agreement was reached General Land Office to decide. The by the stockmen and Indian Office Indian office was to decide only officials to divide the range between whether the applicant was an In- Montezuma and Recapture Creeks dian and a non-reservation Indian between the two groups providing Id,

the Indians would not use the nonA letter to the Commissioner of Indians' winter range during the Indian Affairs dated September 29, summer and the non-Indians would 1932, by officials of the Indian not use Indian range at anytime Office and Navajo Agency investi- (Nav. Exs. 610, 611, 612, 613). gating the area proposed to be added In the Congressional reports on to the Navajo reservation listed 17 the bill which became the 1933 Act, non-Indian homesteads within the there is little specific mention about proposed addition (Nav. Ex. 616). the lands except a statement that Three of these were patented, one they were "used by Indians." H. R. had been allowed, the others were REP. NO. 1883, 72nd Cong., 2d Sess. filed in 1931 or 1932. The letter also 3 (1933). Also, on page 44 of a relisted only nine Navajo Indians port by Special Commissioner (apparently the male heads of the Hager generally regarding Navajos families) within the area proposed and proposed extensions of the resto be added to the reservation, with ervation, in S. DOC. NO. 64, 72nd a total of 35 children, and having Cong., 1st Sess. (1932), the Aneth a total of 2,450 sheep. It also indi- area addition of about 51,480 acres cated five other heads of families is proposed “in order to take care living on Montezuma Creek had of a number of allotted Indians and stock and had used the proposed other roving Indians in the vicinaddition. It mentioned 14 other In- ity.” Nothing in the 1933 Act or its dians who lived outside the pro- legislative history suggests that posed area on Montezuma Creek, Congress then did not recognize the San Juan River, and Recapture State's title in surveyed school secWash. It indicated that the Indians tions at that time or that it intended lived along Montezuma Creek, Re- to affect the State's title without accapture Wash, and San Juan River tion by the State. Instead, section 2

June 29, 1973

of the Act, 47 Stat. 1419, provides in the 1905 extension in Utah. See that the State of Utah "may re- also Solicitor's Opinion, 57 I.D. 547 linquish such tracts of school land (1942), holding that Indians who within the areas added to the had filed section 4 allotment appliNavajo Reservation by section 1 of cations prior to the 1933 Act had this Act, as it may see fit in favor acquired equitable rights, as the land of the said Indians." It then pro- was then public land not otherwise vides for lieu selections to be made appropriated, and the 1933 Act did in the same manner as provided in not cut off their rights, which had the Enabling Act, except the pay- already vested. ment of fees or commissions is As the archival materials diswaived. This waiver of fees was ex- cussed previously establish, prior to plained in the legislative history and after 1894 and 1900 officials of because the reservation was made to the Territory and the State of Utah, benefit the Government in its ad- the citizens in the area, the military ministration of the Indians (see officials and Indian Office officials, Commissioner's report in S. REP. regarded the general Aneth area NO. 1199, 72nd Cong., 2d Sess. 3 outside the established reservation (1933).

boundaries as public land subject Likewise, the declaration of trust to use and disposition under the as to public lands within the ex- public land laws, and not as land terior boundaries of the Navajo which the Government was holding reservation for the benefit of the for the benefit and use of the InNavajo Tribe in section (d) of the dians. A proposal that the area be Act of September 2, 1958, 72 Stat. set aside for the Ute Indians in the 1687, was made subject to "valid ex- 1890's was rejected. There was no isting rights” and did not purport such proposal for the Navajos alto affect the existing State title, nor though many other proposals for did the Act of November 20, 1963, additions to their reservation had 77 Stat. 337 (see n. 28). See United been made, most of which were ultiStates v. Minnesota, supra; see also mately acted upon. We note that Navajo Indian Reservation, 30 L.D. existing legislation in 1894 provided 515 (1901), concerning the exclu- for the protection of land "belongsion of lands occupied by mineral ing to any Indian or Indian tribe" claimants from the May 17, 1884, by subjecting any person who Executive Order addition to the "drives or otherwise conveys any Navajo reservation in Arizona, leav- stock of horses, mules, or cattle, to ing them part of the public domain range and feed on any land belongsubject to disposal under the general ing to any Indian or Indian tribe, land laws, and cited in John D. without the consent of such tribe" to Archer, Stephen D. Smoot, 67 I.D. a penalty of $1 for each animal of 181 (1960), regarding mining claims such stock. R.S. $2117, 25 U.S.C.

on

$ 179 (1970).33 Likewise, any person third parties, including the State, who makes settlement

but that the contrary was true under any lands belonging, secured, or

the policies of that time. granted by treaty with the United States At most, prior to 1900 there were to any Indian tribe, or surveys or at- only a few expressions by Indian tempts to survey such lands, or to desig

officials that Indians outside the resnate any of the boundaries by marking

ervation would have the same rights trees, or otherwise, is liable to a penalty of $1,000.

to graze upon the public lands as The President was authorized to use

the non-Indians, but that they

would also be subject to the same military force if necessary to remove such person from the lands.

laws, including those within the R.S. $ 2118, 25 U.S.C. $ 180 (1970).

police power of the State, as nonCf. Act of February 25, 1885, 43

Indians. The special protection and U.S.C. SS 1061-66 (1970).

privileges of Indians in the reservaRather than Government officials

tion would not prevail outside the invoking these provisions to penal

reservation. It is not for us to judge ize the settlers or the livestock men

in light of modern day concepts of who drove their stock throughout

civil rights the action or inaction of the Aneth extension area until the

the Government officials prior to agreement reached in the early

1900 with respect to the Navajo In

dians in Utah. 1930's purporting to divide the range between the Indians and the

Conclusions non-Indians prior to the 1933 Act, the right of the non-Indians to make

It is only necessary to determine settlements and to use the land as whether there were such occupancy grazing land was recognized. In

or proprietary rights in the Indians deed, prior to 1900 military force recognizable under the law which was used to return Navajo and Ute affected the presumptive vesting of Indians in southern Utah to their the State's title to these disputed reservations so they would not dis- sections in 1900. turb non-Indians in the area. This

We must conclude that the eviis a further manifestation that there

dence does not establish that there was no Governmental recognition of

were. In view of the Congressional any occupancy right in the Indians policy at that time concerning Inin the area superior to the rights of

dians and the acquisition of indi

vidual rights outside Indian reser88 The word “cattle" was interpreted to include sheep. Ash Sheep Co. v. United States,

vations, any express or implied 252 U.S. 159 (1920). That case interpreted an consent by Indian officials of Indian Act of Congress whereby a tribe ceded lands within an established reservation, and held

occupancy outside the reservation that because the funds from the sale of the could not create tribal rights to the ceded lands were to go to the tribe, they re. mained within the category of "Indian" lands

land superior to the grant to the rather than "public lands" within the meaning State. Cf. Healing v. Jones, supra; of $ 2117 Revised Statutes. The situation in

Jane M. Sandoz, supra. the present case is different than that in Ash.

June 29, 1973

recom

The Tribe has referred to the evi- Mesa is reflected by the Hatahley dence which shows the poor range case. conditions within the reservation As to whether the reservation and and without, the population increase the additions thereto were adequate of the Tribe, the sometimes nearly to support the Indians, and as to destitute conditions of the Navajos, their grievances generally with reand other reasons which caused gard to whether the United States Navajos to go outside their reserva- Government performed its obligation. In essence its contention with

tions toward them, this Board is not regard to occupancy of land "essen

the proper forum to determine such tial to the livelihood” of the Indians questions, nor can the State's rights goes to the adequacy of the reserva- depend on the answers to these question as it was extended from time

tions. Congress has provided under to time. We note that the record

the Indian Claims Commission Act shows that each time an extension that the Tribe's right to any comof the reservation was

pensation for its relinquished abomended, the recommendation usu- riginal lands and unperformed ally indicated that the extended

Government obligations shall be dearea would be adequate to take care termined by the Indian Claims of the needs of the Indians. It is Commission. The Tribe's pending significant that the area including case before that Commission is the the disputed sections was not added appropriate vehicle for resolution to the reservation until some 33

of its claims against the United years after the State's title vested States Government in this regard. although other additions had been

With respect to the Utah Enmade to alleviate the problems re

abling Act, we conclude that there ferred to by the Tribe. With regard

was no additional tribal occupancy to the Tribe's claim of occupancy, right to lands outside the established we note that recognition of occu

reservation boundaries recognized pancy rights or protection of occu

under that Act. In the words of pancy rights within the 1933 exten

Justice Black in Ute Indians v. sion was not even the prime factor

United States, 330 U.S. 169, 179–80 leading to the addition to the res

(1947), ervation, but rather the extension was to effectuate a compromise of

we cannot, under the guise of in

terpretation create presidential authority range conflicts throughout San Juan

where there was none, nor rewrite conCounty, Utah, between Indian and

gressional acts so as to make them mean non-Indian grazing users and to something they obviously were not inmake a division of the range. That tended to mean. Choctaw Nation this division did not work and Naja

United States, 318 U.S. 423, 431-432. We

cannot, under any acceptable rule of injos continued thereafter to use their

terpretation, hold that the Indians owned preferred range on the McCracken the lands merely because they thought so.

V.

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