In this case, despite the Tribe's claims, the evidence indicates the Indians knew or should have known the land was outside the area allowed for tribal occupancy in 1894 and 1900. The San Juan River was a definite and recognizable natural boundary, unlike the artificial survey line which was the north boundary of the 1905 Executive Order Withdrawal, where the Indians and others could be confused as to the boundary. Navajo rights to land outside the reservation superior to the State's rights could then only be acquired by individual Navajos in compliance with the settlement laws, and not by the Tribe until a proper withdrawal of the land was authorized for the Tribe's behalf. Such actions had not been taken in 1900. Therefore, an unencumbered fee simple title then passed to the State.

As indicated in the Solicitor's decision, 72 I.D. 361, 366, the Tribe had the burden of proof to overcome the presumptive vesting of the State's title. This burden has not been satisfied in this case.

To summarize, we sustain the findings and conclusions of the Director except insofar as they have been modified by our discussion. We expressly find and conclude: (1) there was no occupancy of the disputed sections by any individual Navajo in 1900, which could preclude the grant to the State; (2) there was no aboriginal occupancy of a tribe to the disputed sections in 1900 to which the State's title would be subject; (3) the Navajo Tribe's abo

riginal rights to lands outside the 1868 reservation were extinguished by the Treaty of 1868; (4) there was no other tribal occupancy of the area including the sections in 1900 under the standards whereby tribal occupancy has been recognized which could preclude the grant to the State; (5) any use of the disputed sections by a proportionately few Navajo families for grazing purposes together with other lands in the area did not affect the State's title; (6) a Navajo tribal right of Occupancy outside the established boundaries of the Navajo reservation was not protected or recognized by Congress in the Utah Enabling Act; (7) fee simple title to these disputed sections passed to the State of Utah on May 1, 1900, when the plats of survey were accepted.

The Tribe's challenge to the issuance of the confirmatory patent to the States goes to the entire fee title of the State with all of the incidental benefits of ownership, in particular, the mineral values which have been exploited under the State's oil and gas leases. The school grant to the State of Utah contemplated passage of a full fee simple title to the State. Margaret Scharf, supra. Except for easements or rights granted to private persons prior to the vesting of the State's title, subsequent Congressional legislation could not impose further amendments or limitations to burden the State's grant. The Act of June 21, 1934, did not change this. Associate Solicitor's Opinion, M-36484 (December 26, 1957). The

12 IBLA 255

Decided July 24, 1973

Appeal from a decision (Worland 44) by the District Manager, Worland, Wyoming, Bureau of Land Management, dated April 6, 1972, denying the appellants' grazing lease application and granting the appellee's grazing application to the extent of the conflict between the two applications.

Reversed.

Administrative Practice-Grazing Leases: Preference Right Applicants An applicant who asserts a preference to receive a grazing lease under section 15 of the Taylor Grazing Act must have grazinz rights in excess of 50 percent on the cornering or contiguous land, and where his rights are merely permissive and are subject to revocation at any time at the will of the owner(s), no preference will be recognized.

APPEARANCES: Harry and Marjory Grabbert, pro se; Richard W. Ferry of McCarty and Ferry, Cody, Wyoming, for appellee.

OPINION BY MR. STUEBING INTERIOR BOARD OF LAND

APPEALS

Harry and Marjory Grabbert have appealed from an April 6, 1972, decision of the Worland, Wyoming, District Office which decided that as between them and a conflicting applicant to a portion of a grazing lease, Worland 44, the

would be

conflicting applicant awarded the disputed land.

In December 1971 Harry and Marjory Grabbert filed an application to renew their lease, Worland 44, which they had held since 1954 but which would expire on January 31, 1972. Robert W. Schultz filed a conflicting application. The District Office found them both to be qualified preference applicants under 43 CFR 4121.1-1. After it was determined that there could be no agreement between the parties as to a division of the land, it was decided that an award would be made pursuant to certain criteria contained in 43 CFR 4121.2-1(d) (1) and (2); that is, historical use, proper use of the preference lands, and general needs of the applicants. The decision found that other criteria specified in the regulations were either not applicable in the instant case or that both applicants were equally qualified as to these factors.

The decision held that Schultz better deserved the lease from the standpoint of land pattern, proper use of preference land, and general need. It held that the historical use of the Grabberts was insufficient to overcome those considerations, and it awarded the conflict area to Schultz.

After the Grabberts filed their notice of appeal and statement of reasons on May 4, 1972, the situation of the parties in relation to the preference land involved in this appeal changed. In their original statement of reasons the Grabberts attacked

80 I.D. Nos. 7 & 8

transaction, ranging from mortgage collateral to probative wills. At present there are thirty-four owners of record holding 95 percent of the ownership. The Park

privileges and a discussion of his insincerity as a stable rancher. To those charges Schultz filed an answer and the Worland District Office sent a review of the case refuting the Grabberts' appeal. Because of the District Office's action we allowed both parties an opportunity to respond to the material contained in the District Office's review. All prior documents had relied, in their discussions of the situation, upon Schultz's control of the leased land which he had listed in his application as preference land. However, the Grabberts included with their answer to the District Office's review, a letter from Marathon Oil Company, the partial owner of the land which Schultz used as his prefence land, which revoked the grazing privileges on that land which Marathon had granted to Schultz. By a second letter-agreement Marathon awarded those same grazing privileges to Grabbert.

The Wyoming State Director forwarded to this Board a memorandum which explains the ownership situation regarding the land which Schultz had used as his preference

land:

These two quarter-sections are part of a group of oil placer claims patented in 1921. The corporation to which the patent was issued was later desolved and ownership of the land was distributed to the stockholders and directors in proportion to their holdings. In the intervening years, every portion of the distributed ownership has been through at least one