RULES OF PRACTICE-Con.

PROTESTS

1. The Navajo Tribe of Indians
has standing within the
Department of the Inter-
ior to contest or protest
against the issuance of a
confirmatory patent to
the State of Utah for
School sections within
the exterior boundary of
the reservation for the
Tribe..

WITNESSES

1. A contractor's application to
take depositions of re-
tired Bureau employees
and of a newspaper re-
porter will be denied,
since such prospective
witnesses are not under
the control of the Govern-
ment and the Board has
no jurisdiction over third
parties.

2. A contractor who fails to
take advantage of Gov-
ernment offers to examine
certain information rela-
tive to its claims is not
entitled to have its appli-
cation to take the dep-
ositions of Government
employees for purposes
of discovery granted, as
the contractor has not
shown good cause as re-
quired by the Board's
rule governing discovery
(43 CFR 4.115).

SCHOOL LANDS

GENERALLY

1. Where the Secretary of the
Interior is required by
the Act of June 21, 1934,
upon application by a
state, to issue a patent
to the state for school
lands and to show the
date title vested and the
extent to which the lands

are subject to prior con-

SCHOOL LANDS-Con.

GENERALLY-Con.

ditions, limitations, ease-
ments, or rights, if any,
he (and his delegates)
may determine questions
of law as well as fact, in-
cluding a determination
as to whether title passed
under the school land
grant...

2. Although the Board of Land
Appeals takes official no-
tice of the findings and
conclusions in an inter-
locutory order of the
Indian Claims Commis-
sion on the claim of the
Navajo Tribe of Indians
against the United States,
the Board's decision on
a protest by the
Tribe against issuance of
a confirmatory patent to
the State of Utah for
school land sections now
included within the
boundaries of the Tribe's
reservation is based solely
upon the evidence in
the hearing in the De-
partment on this protest
and upon its own appli-
cation of the law to the
facts in this case_----

3. The Navajo Tribe of Indians
has standing within the
Department of the In-
terior to contest or pro-
test against the issuance
of a confirmatory patent
to the State of Utah for
school sections within the
exterior boundary of the
reservation for the Tribe.
4. To determine whether any
Indian occupancy by
Navajos outside
recognized reservation
boundaries was recog-
nized by the Utah Ena-
bling Act of 1894 so as to

their

SCHOOL LANDS-Con.

GENERALLY-Con.

prevent the operation of
the grant of lands for
school purposes to the
State, the intent of Con-
gress must be ascertained
by reading the provisions
of the grant and the dis-
claimer of lands "owned
or held by any Indian or
Indian tribes" together,
by considering the usual
meaning of the words, by
determining the overall
purpose of the Act, and
by considering the pro-
visions in accordance with
the historical milieu and
public policy of that time,
as well as any court inter-
pretations of other stat-
utes--

5. Although the school land
grant to the State of Utah
was subject to existing
inchoate settlement
claims, including any by
individual Indians outside
their reservation, if the
claims were not
fected, the State's title
to the lands vested....

per-

unre-

in

6. The Acts of March 1, 1933,
adding "vacant,
served, and undisposed
of" public lands to the
Navajo reservation, and
of September 2, 1958, de-
claring lands within the
exterior boundaries of the
Navajo reservation
trust
for the Navajo
Tribe, "subject to valid
existing rights," did not
affect the existing title
of the State of Utah in
school sections which had
vested in the State in
1900 when surveys were
approved including the
sections__

SCHOOL LANDS-Con.

GENERALLY-Con.

7. By the Utah Enabling Act

of 1894, Congress did
not intend the grant
of school lands to the
State of Utah, effective
upon survey in 1900, to
be held in abeyance as
to unreserved public lands
which may have been
within a wide, undefined
perimeter of use by a pro-
portionately few Navajo
families outside their res-
ervation grazing flocks
of sheep with transitory
encampments in an area
also used by non-Indians
for grazing purposes and
wandered over by Indians
from other tribes..

8. Where lands were not with-
drawn for Indians, any
express or implied con-
sent by Indian Office
officials to Navajos graz-
ing sheep on public lands
outside their reservation
boundaries where no
claim to the land was
made under section 4 of
the General Allotment
Act and the lands were
recognized by such offi-
cials and other govern-
ment officials as public
lands, rather than Indian
lands, could not create
Indian tribal occupancy
rights to such lands su-
perior to the Congres-
sional grant to the State
of Utah for school lands,
and the State took an
unencumbered fee simple
title to such sections____
GRANTS OF LAND
1. Title

to school sections
granted to the State of
Utah by section 6 of
the Utah Enabling Act,

2. The Acts of March 1, 1933,
adding "vacant, unre-
served, and undisposed
of" public lands to the
Navajo reservation, and
of September 2, 1958, de-
claring lands within the
exterior boundaries of the
Navajo reservation in
trust for the Navajo
Tribe, "subject to valid
existing rights," did not
affect the existing title of
the State of Utah in
school sections which had
vested in the State in
1900 when surveys were
approved including the
sections__

3. By the Utah Enabling Act of

1894, Congress did not
intend the grant of school
lands to the State of
Utah, effective upon sur-
vey in 1900, to be held in
abeyance as to unreserved
public lands which may
have been within a wide,
undefined perimeter of
use by a proportionately
few Navajo families out-
side their reservation
grazing flocks of sheep
with transitory encamp-

of

1. A release filed by a land-
grant railroad pursuant
to section 321(b) of the
Transportation Act
1940, 54 Stat. 954, extin-
guishes the right of the
railroad or its attorneys-
in-fact to select lands or
receive compensation in
lieu of lands originally
acquired by it under the
Act of July 27, 1866, in
aid of construction of the
railroad but relinquished
under the Act of June 4,
1897_.

PAYMENT IN SATISFACTION

1. Where a railroad's forest lieu

selection rights are extin-
guished by a release given
to the United States, the
rights (if any) of a pur-
chaser of the selection
rights from the railroad
are also extinguished.........-

885

SECRETARY OF THE INTERIOR-Con.

2. The Secretary of the In-
terior has the authority
and the duty to determine
what lands are public
lands of the United
States, including the au-
thority to determine navi-
gability of a lake to ascer-
tain whether title to the
land underlying the lake
remains in the United
States or whether title
passed to a State upon its
admission into the Union

3. Where the Secretary of the
Interior is required by
the Act of June 21, 1934,
upon application by a
state, to issue a patent to
the state for school lands
and to show the date title
vested and the extent to
which the lands are sub-
ject to prior conditions,
limitations, easements, or
rights, if any, he (and his
delegates) may deter-
mine questions of law as
well as fact, including a
determination as to
whether title passed un-
der the school land grant.

SETTLEMENTS ON PUBLIC LANDS
1. Α homestead settlement

claim for an additional
homestead entry under
the Act of April 28, 1904
(33 Stat. 527), 43 U.S.C
§ 213, may be made for
unsurveyed lands in

Alaska by a person other-
wise qualified who has
filed an application for
homestead entry on а
form approved by the
Director, Bureau of Land
Management, and made
acceptable final proof
on his original homestead
settlement claim, where

Page

313

441

SETTLEMENTS ON PUBLIC LANDS-
Con.

2.

the combined area of the
two claims does not ex-
ceed 160 acres.
From the latter part of the
19th century to the Tay-
lor Grazing Act of June
28, 1934, there was a
general policy of the Fed-
eral Government to per-
mit acquisition of title to
open, unreserved public
lands by individuals
settling upon the land,
including Indians, but
vested rights were ob-
tained to the lands only
upon compliance with
a specific act of Con-
gress, and only for the
maximum acreage allow-
able under that law___
3. Although the school land
grant to the State of
Utah was subject to ex-
isting inchoate settle-
ment claims, including
any by individual In-
dians outside their reser-
vation, if the claims were
not perfected, the State's
title to the lands vested..
4. The Indian Homestead Acts
and section 4 of the Gen-
eral Allotment Act are
settlement acts within
the framework of other
settlement laws pertain-
ing to the public lands,
and the practice, rules
and decisions regarding
white settlers on the
public lands have been
applied to them with cer-
tain reasonable modi-
fications taking into ac-
count Indian habits, char-
acter, and disposition....

Page

269

442

STATE GRANTS
1. Where the Secretary of the
Interior is required by
the Act of June 21, 1934,
upon application by a
state, to issue a patent to
the state for school lands
and to show the date
title vested and the ex-
tent to which the lands
are subject to prior con-
ditions, limitations, ease-
ments, or rights, if any,
he (and his delegates)
may determine questions
of law as well as fact,
including a determination
as to whether title passed
under the school land
grant...

2. Title to school sections

granted to the State of
Utah by section 6 of the
Utah Enabling Act, 28
Stat. 109, vests in the
State on the date of
Statehood (January 4,
1896), or upon completion
and acceptance of the
survey of the sections if
the lands were not then
surveyed...-.

To determine whether any
Indian occupancy by
Navajos outside their
recognized reservation
boundaries was recog-
nized by the Utah En-
abling Act of 1894 so as to
prevent the operation of
the grant of lands for
school purposes to the
State, the intent of Con-
gress must be ascer-
tained by reading the
provisions of the grant
and the disclaimer of lands
"owned or held by any
Indian or Indian tribes"