Ute Indian Tribe v. State of Utah

JENKINS, District Judge.

The Ute Indian Tribe filed a complaint with this Court on October 15,1975, seeking declaratory and injunctive relief establishing the exterior boundaries of the Uintah and Ouray Reservation, defining the force and effect of the Tribe’s Law and Order Code within those boundaries, and restraining the defendants from interfering with the enforcement of that Code.

1

The Tribe, a federally recognized, sovereign Indian tribe,

2

operates under a constitution and by-laws adopted in 1936 and approved by the Secretary of the Interior in 1937.

3

Artiele I of the tribal constitution defines the territory claimed by the Tribe for jurisdictional purposes:

The jurisdiction of the Ute Indian Tribe of the Uintah and Ouray Reservation shall extend to the territory within the original confines of the Uintah and Ouray Reservation as set forth by Executive Orders of October 3, 1861 and January 5, 1882, and by the Acts of Congress approved May 27, 1902, and June 19, 1902, and to such other lands without such boundaries as may hereafter be added thereto under any law of the United States,

except as otherwise provided by law.

[Emphasis added.]

Among the powers vested in the Tribal Business Committee, the Tribe’s elected governing body, are the following:

Article VI — Powers of the Tribal Business Committee

Section 1. Enumerated powers. — The Tribal Business Committee of the Uintah and Ouray Reservation shall exercise the following powers, subject to any limitations imposed by the statutes or the Constitution of the United States, and subject further to all express restrictions upon such powers contained in this Constitution and By-laws, and subject to re

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view by the Ute Bands themselves at any annual or special meeting:

******

(h) To levy taxes upon members of the Ute Indian Tribe of the Uintah and Our-ay Reservation, and to require the performance of community labor in lieu thereof, and to levy taxes and license fees, subject to review by the Secretary of the Interior, upon non-members doing business within the Reservation.

(i) To exclude from the territory of the Uintah and Ouray Reservation persons not legally entitled to reside therein, under ordinances which shall be subject to review by the Secretary of the Interior.

******

(j) To enact resolutions or ordinances, not inconsistent with Article II of this Constitution governing adoption and abandonment of members, and to keep at all times a correct roll of the members of the Ute Indian Tribe of the Uintah and Our-ay Reservation.

(k) To promulgate and enforce ordinances, which shall be subject to review by the Secretary of the Interior, governing the conduct of members of the Ute Indian Tribe of the Uintah and Ouray Reservation, and providing for the maintenance of law and order and the administration of justice by establishing a Reservation Indian Court and defining its duties and powers.

(/) To safeguard and promote the peace, safety, morals and general welfare of the Ute Indian Tribe of the Uintah and Our-ay Reservation by regulating the conduct of trade and the use and disposition of property upon the Reservation, provided that any ordinance directly affecting nonmembers of the Reservation shall be subject to review by the Secretary of the Interior.

(m) To charter subordinate organizations for economic purposes, and to regulate the activities of co-operative associations of members of the Ute Indian Tribe of the Uintah and Ouray Reservation by ordinance, provided that any such ordinance shall be subject to review by the Secretary of the Interior.

(n) To regulate the inheritance of property, real and personal, other than allotted lands, within the territory of the Uintah and Ouray Reservation, subject to review by the Secretary of the Interior.

(o) To regulate the domestic relations of members of the Ute Indian Tribe of the Uintah and Ouray Reservation by ordinances which shall be subject to review by the Secretary of the Interior.

(p) To provide for the appointment of guardians for minors and mental incompetents by ordinances or resolutions which shall be subject to review by the Secretary of the Interior.

******

For many years, it seemed to the Ute’s non-Indian neighbors that these powers, as well as others, lay dormant as far as non-Indian affairs were concerned. To many, the concept of Indian tribal government seemed wholly irrelevant to their businesses and daily lives. Over those same years, however, the Ute Indian Tribe did not remain passive. The Utes, with the support and encouragement of their trustee, the United States government, have made continuous efforts to improve the sophistication and effectiveness of their tribal institutions in response to changing times and circumstances.

4

Naturally, as the Utes have gained the economic wherewithal to do so, they have sought a greater share of autonomy and control over their own lives and community affairs. It was inevitable that this quest for tribal autonomy would find expression in the promulgation of tribal law.

5

The Tribe operated a tribal government and an Indian court for many years prior to

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1975.

5A

As tribal operations expanded and the demand on tribal institutions increased, the Tribe sought to recodify and expand its growing body of ordinances, resulting in the enactment and publication of the Law and Order Code of the Ute Indian Tribe (hereinafter “Ute Law and Order Code”) which was approved by the Secretary of the Interior through the Phoenix Area Director of the Bureau of Indian Affairs, Trial Transcript at 55 (Testimony of Wm. F. Streitz), and became effective on September 15, 1975.

6

Promulgation of the Ute Law and Order Code raised immediate protest from the defendant municipalities, Duchesne and Roosevelt, and defendant Duchesne County, all of which are within the original boundaries of the Uintah Indian Reservation.

7

The defendants complained that they were wrongfully included within the territorial jurisdiction of the Ute Tribe under the Ute Law and Order Code

8

and officials of the

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defendants urged their constituents to resist the enforcement of the new code. The State of Utah complained that its authority was likewise impaired.

9

The Tribe, faced with mounting opposition to the exercise of its jurisdiction, commenced the above-entitled action in this Court against the named governmental defendants. The State of Utah intervened as a defendant and the United States of America and Paradox Production Corporation have subsequently entered these proceedings as a

mid curiae.

By stipulation of the parties in the Pretrial Order, Uintah County, another political subdivision of the State of Utah, was joined as a defendant.

10

I. CLAIMS OF THE PARTIES

To paraphrase the Pretrial Order, the plaintiff Ute Indian Tribe asserts that the Uintah and Ouray Indian Reservation was created by the Executive Order of October 3, 1861,

11

as confirmed by the Act of May 5, 1864, 13 Stat. 63 , by the Executive Order of January 5, 1882,

12

and by the Act of March 11, 1948, 62 Stat. 72 , and that the original exterior boundaries as thus established continue to exist undiminished for purposes of defining the present boundary of the Uintah and Ouray Reservation. Plaintiff further asserts that all of the lands encompassed by that boundary are “Indian country” as defined by federal statute

13

and that the defendants may not exercise jurisdiction over members of the plaintiff Tribe for any criminal offense committed therein as that jurisdiction is reserved to the United States, or to the Tribe itself,

14

and that the Tribe may exercise the full panoply of its governing powers within those same boundaries free from interference by the defendants.

15

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In defense, all defendants assert that “Indian country” in the Uintah basin is confined to lands held in trust for individual Indians or for the Ute Indian Tribe, and beyond that, the area defined by the Act of March 11, 1948, 62 Stat. 72 , more commonly known as the Hill Creek Extension. The State of Utah asserts alternatively that the original Uintah Valley Indian Reservation described in the Executive Order of October 3,1861, is diminished by national forest and reclamation withdrawals and that diminished area combined with the Hill Creek Extension comprises “Indian country” under tribal and federal jurisdiction. See State’s Post-Trial Brief at 55. All defendants assert that the Uncompahgre Reservation, delineated by the Executive Order of January 5, 1882, no longer exists. Implicit in the defense is the issue of the enforceability of the Ute Law and Order Code as against non-Indians, particularly on lands held in fee simple — “fee lands” — rather than on lands held in federal trust for use and occupancy by the Indians — “trust lands”.

While plaintiffs seek both declaratory and injunctive relief, no claims for damages have been asserted by any party.

II. PRELIMINARY INJUNCTION

This Court has already granted preliminary equitable relief to a limited extent in the above-entitled action. In an action arising in state court among persons who are not parties to these proceedings, some of the same jurisdictional questions were presented to the state court as are presented here. In a broadly worded opinion in

Brough v. Appawora,

553 P.2d 934 (Utah 1976), a majority of the Utah Supreme Court held that a state district court had jurisdiction of a tort claim against a member of the Ute Indian Tribe arising from an automobile accident occurring within the original exterior boundaries of the Uintah Valley Reservation as defined by the Executive Order of October 3, 1861.

The plaintiff sought a temporary restraining order and a preliminary injunction forbidding the defendants or their officers, employees, etc. from (1) proceeding to enforce the judgment in

Brough v. Appawora,

or (2) relying on that decision to justify interference with the Tribe’s asserted jurisdiction. The temporary restraining order was entered on September 6, 1976, and the preliminary injunction on October 14, 1976.

16

By its preliminary injunction this Court did not seek to enjoin the state proceedings in

Brough v. Appawora

or otherwise overrule that decision by the Utah Supreme Court, recalling that “lower federal courts possess no power whatever to sit in direct review of state court decisions.”

Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers,

398 U.S. 281, 296 , 90 S.Ct. 1739, 1747 , 26 L.Ed.2d 234 (1970). Rather the preliminary injunction was issued to maintain the status quo in this litigation, avoiding potentially destructive conflicts among the parties hereto until this Court was able to conclusively resolve these jurisdictional questions upon the merits.

Of course, this Court is in no way bound to follow the rule of

Brough v. Appawora ;

the parties herein were not parties to that case, eliminating any question of

res judicata

or collateral estoppel, see

Kline v. Burke Const. Co.,

260 U.S. 226, 230 , 43 S.Ct. 79, 81 , 67 L.Ed. 226 (1922), nor is this Court bound by the doctrine of

stare decisis

to follow state court interpretations of federal law,

Kansas City Steel Co. v. Arkansas,

269 U.S. 148 , 46 S.Ct. 59 , 70 L.Ed. 204 (1925).

Any

persuasive

effect the opinion in

Brough v. Appawora

may have had was effectively negated by the United States Supreme Court, which vacated the opinion and remanded “for further consideration in light of

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 , 97 S.Ct. 1361 , 51 L.Ed.2d 660

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(1977).” 431 U.S. 901 , 97 S.Ct. 1690 , 52 L.Ed.2d 384 (1977). The threat of injury addressed by the preliminary injunction arguably became moot following the Supreme Court’s action, and the preliminary injunction shall therefore be dissolved upon entry of final judgment in this action.

III. TRIAL

The above-entitled action came before this Court for the purpose of trial without a jury on August 1 and 2, 1979. Testimony was taken from 18 witnesses and more than 800 documentary exhibits were admitted,

17

totaling more than 3,000 pages of text, plus photographs and dozens of maps. Besides giving careful scrutiny to these documents and the record at trial, this Court has studied the extensive pretrial memoranda and post-trial briefs submitted by the parties and the United States as

amicus,

and has examined numerous historical documents authenticated in the discovery process but not included in the compilation of joint exhibits offered at trial, and other learned treaties and historical works that are relevant to this Court’s determinations.

IV. HISTORICAL INQUIRY

In large part, the questions to be decided by this Court turn on the discovery of the intent of the United States Congress in the course of its dealings with the Ute Indians and their non-Indian neighbors, particularly as that intent has found expression in numerous statutes. As Chief Justice Marshall announced long ago, “Where the mind labors to discover the design of the Legislature, it seizes everything from which aid can be derived...”

United States v. Fisher,

6 U.S. (2 Cranch) 358, 386 , 2 L.Ed. 304 (1905). In this case, this Court has been compelled to assemble and synthesize multiple fragments of a complex era of history in an attempt to reinfuse the words of the old documents we are considering with the weight and meaning they once carried and to do so “courts, in construing a statute, may with propriety recur to the history of the times when it was passed.”

United States v. Union Pac. R.R.,

91 U.S. 72, 79 , 23 L.Ed. 224 (1875). Courts in cases such as this one must of necessity refer to that history to resolve the issues before them. See

Missouri-Kansas-Texas R.R. Co. v. Early,

641 F.2d 856, 857 (10th Cir. 1981). As one distinguished commentator warned years ago: “Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored.” N. Margold,

Introduction,

in F. Cohen, Handbook of Federal Indian Law at xxxvii (U.N.M. ed. 1971). In a very real sense history controls the meaning of law in this case.

18

At the same time, however, neither history nor the law that it creates remain static, fixing words with a particular meaning assigned by the thinking of a particular era. Notions of jurisdiction, sovereignty, of enlightened governmental policy evolve in a state of flux generated by the changing perceptions and experiences of the people by whom these ideas are defined. Justice

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requires that courts temper the meaning of the fundamental documents with interpretations that serve the needs of people in circumstances beyond the imagination of those who framed the statutory language decades ago.

19

The architects of the policy of allotting Indian reservation lands in severalty to tribal members in no way foresaw the stubborn survival of American Indians as distinct, cultural and political communities who “cling so tenaciously to their lands and traditional tribal way of life.”

Federal Power Comm. v. Tuscarora Indian Nation,

362 U.S. 99, 142 , 80 S.Ct. 543, 567 , 4 L.Ed.2d 584 (1962) (J. Black, dissenting). Their concerns over matters of policy seem to have been much more immediate than dictating what would be the precise boundaries of an Indian reservation 80 years later. As Justice Marshall observed in a recent case raising similar issues,

Ultimately, what the legislative history demonstrates, as co-counsel for the state has aptly concluded, is that Congress manifested an “almost complete lack of . . . concern with the boundary issue.”

20

The issue was of no great importance in the early 1900’s as it was commonly assumed that all reservations would be abolished when the trust period on allotted lands expired. There was no pressure on Congress to accelerate this time table, so long as settlers could acquire unused land. Accordingly, Congress did not focus on the boundary question.

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584, 629 , 97 S.Ct. 1361, 1384 , 51 L.Ed.2d 660 (1977) (J. Marshall, dissenting).

The task facing this Court is plagued by a similar lack of definitive expression by Congress on the specific boundary issues. The Court must make its own reasoned construction of the relevant statutory language based upon a careful evaluation of multiple factors, namely history, legal doctrine and precedent, public policy, past and contemporary circumstances of people, and common sense. Legal analysis of the evidence and issues in this case is further complicated by the fact that over the years, Congress has changed the rules defining the territorial limits of federal, state and tribal jurisdiction in a reservation context. Historical events that are now material to the question of jurisdiction were not material to the question of jurisdiction at the time those events occurred.

For example, “Indian Country” as a jurisdictional concept was first defined in general terms by Congress in the Indian Trade and Intercourse Act of 1834:

Be it enacted, that all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and also that part of the United States east of the Mississippi River, and not within any state

to which the Indian title has not been extinguished,

for the purpose of this Act, be taken and deemed

Indian country.

21

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This statutory definition remained in force until it was repealed by the failure to include it in the U.S. Revised Statutes in 1874.

22

However, a number of other federal statutes were retained in the Revised Statutes which still made reference to transactions in “Indian country.”

See e. g.,

R.S. §§ 2127-2148, 2150, 2152-2154 (1878). Notwithstanding the repeal of the statutory definition in the 1834 Act, the courts continued to apply the general thrust of that definition in cases arising under statutes which were retained. In

Bates v. Clark,

95 U.S. 204 , 24 L.Ed. 471 (1877), the Supreme Court first dealt with the problem of defining “Indian country” under the Revised Statutes. Justice Miller, writing for the Court, reviewed the 1834 Act’s definition and commented:

The simple criterion is that as to all the lands thus described it was Indian country whenever the Indian title had not been extinguished, and it continued to be Indian country so long as the Indians had title to it, and no longer. As soon as they parted with the title, it ceased to be Indian country, without any further act of Congress, unless by the treaty by which the Indians parted with their title, or by some act of Congress, a different rule was made applicable to the case.

95 U.S. at 208 . In

Bates

the Court found the 1834 definition to be easily applied to the case before it:

Notwithstanding the immense changes which have since taken place in the vast region covered by the act of 1834, by the extinguishment of Indian titles, the creation of states and the formation of territorial governments, Congress has not thought it necessary to make any new definition of Indian country. Yet during all this time a large body of laws has been in existence, whose operation was confined to the Indian country, whatever that may be. And men have been punished by death, by fines, and by imprisonment, of which the courts who so punished them had no jurisdiction, if the offenses were not committed in the Indian country as established by law. These facts afford the strongest presumption that the Congress of the United States, and the judges who administered those laws, must have found in the definition of Indian country, in the Act of 1834, such an adaptability to the altered circumstances of what was then Indian country as to enable them to ascertain what it was at any time since then.

95 U.S. at 207 . Thus it was that the 1834 definition of “Indian country” became a matter of federal common law.

23

The Court continued to apply the title-dependent definition of Indian country set forth in

Bates v. Clark

for a number of years, as in the case of

Ex parte Crow Dog,

109 U.S. 556 , 3 S.Ct. 396 , 27 L.Ed. 1030 (1883), in which Justice Matthews wrote:

In our opinion, that definition now applies to all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of the Indians, ...

This definition though not now expressed in the Revised Statutes, is implied in all those provisions, most of which were originally connected with it when first enacted, and which still refer to it.

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It would be otherwise impossible to explain these references, or give effect to many of the most important provisions of existing legislation for the government of Indian country.

109 U.S. at 561-62 , 3 S.Ct. at 399 . In

Crow-Dog,

the court held Sioux lands within the Dakota Territory to be “Indian country” for jurisdictional purposes.

United States v. LeBris,

121 U.S. 278, 280 , 7 S.Ct. 894, 895 , 30 L.Ed. 946 (1887), extended “Indian country” to include lands held under Indian title within the boundaries of a state.

This title-dependent conception of what for jurisdictional purposes comprised “Indian country” governed, or should have governed, the perceptions of persons contemporaneous to the “opening” of the Uncompahgre Indian Reservation in the 1890’s and the Uintah Valley Reservation in 1905.

Indian title, rather than reservation boundaries, was the material jurisdictional

fact,

24

This distinction between “Indian country” and lands within the boundary of a reservation was acknowledged by the Supreme Court in

United States v. Celestine,

215 U.S. 278 , 30 S.Ct. 93 , 54 L.Ed. 195 , decided in 1909, four years after the Uintah Valley Reservation was “opened” by Congress to settlement. In that case, the Court, referring to the 1834 statute defining Indian country, observed:

Construing this section, it was decided, in

Bates v. Clark,

95 U.S. 204, 209 , [ 24 L.Ed. 471 ] that all the country described in the act as “Indian country” remains such “so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress.” The section was repealed by Rev.Stat., § 5596. Still, it was held that it might be referred to for the purpose of determining what was meant by the term “Indian country” when found in sections of the Revised Statutes which were reenactments of other sections of prior legislation.

Ex parte Crow Dog,

109 U.S. 556 , [ 3 S.Ct. 396 , 27 L.Ed. 1030 ];

United States v. Le Bris,

121 U.S. 278 , [ 7 S.Ct. 894 , 30 L.Ed. 946 ]. But

the word “reservation” has a different meaning, for while the body of land described in the section quoted as “Indian country” was a reservation yet a reservation is not necessarily “Indian country.” The word is used in the land law to describe any body of land, large or small, which Congress has reserved from sale for any purpose.

It may be a military reservation, or an Indian reservation, or, indeed, one for any purpose for which Congress has authority to provide, and

when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.

215 U.S. at 285 , 30 S.Ct. at 94 (emphasis added).

Support for any inference on the question of reservation boundaries cannot be drawn blindly from evidence of jurisdictional practice at the time the reservations were opened. Evidentiary exhibits that express contemporaneous opinions on jurisdiction are properly considered only within the context of the governing law as perceived at that time.

25

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A few years later, the Supreme Court expanded the judicial definition of Indian country to include lands once a part of the public domain which have been reserved and set apart as an Indian reservation by Executive Order,

26

Donnelly v. United States,

228 U.S. 243, 269 , 33 S.Ct. 449, 458 , 57 L.Ed. 820 (1913). After

Donnelly ,

reservation boundaries rather than unextinguished Indian title became the material jurisdictional facts, at least in some cases. The courts continued to expand the definition of Indian country

27

until 1948, when Congress codified these judicial expressions into statutory law as 18 U.S.C. § 1151 .

28

That definition is the one currently in force, defining “Indian country” in terms of the boundaries of an Indian reservation, regardless of title. 18 U.S.C. § 1151 (a) (1976). It must be recalled that during this whole dynamic chain of events, federal, state and tribal officials were attempting to administer policies in light of the then-governing law. To be sure, as a practical matter, the subtle distinctions described above were sometimes lost upon those who actually lived and worked in the areas on or near the Indian reservations; the remote offices of an Indian agent or county prosecutor were not the likely repositories of complete

*1085

sets of United States Reports.

29

Conflicting jurisdictional practices of federal and state authorities in 1897, or 1905, or for decades thereafter may have institutionalized the erroneous exercise of jurisdiction as well as the valid exercise of jurisdiction.

30

The extensive “jurisdictional history” offered at trial by the parties is far more probative of the existence of an ongoing boundary conflict which requires resolution than it is evidence that one asserted boundary line prevails over another.

V. GOVERNING PRINCIPLES

Litigation of the unique complexity of an Indian reservation disestablishment suit demands the application of specially adapted rules of statutory construction. Over the years, courts adjudicating such cases have formulated such principles.

31

This Court has carefully reviewed the bulk of existing case law on reservation diminishment

32

in an effort to distill an analytical approach to the legal and historical materials in this case that would seem to make sense.

It is recognized as fundamental that Congress has primary authority over and bears overall responsibility for Indian affairs.

33

Decades ago, the Supreme Court recognized that such power governs the results of reservation boundary litigation. In

United States v. Celestine,

215 U.S. 278 , 30 S.Ct. 93 , 54 L.Ed. 195 (1909), Justice Brewer, writing for a unanimous Court, declared that, “[Wjhen Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.”

Id.

215 U.S. at 285 , 30 S.Ct. at 94 . This basic precept

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forms the foundation of the body of case law dealing with reservation disestablishment.

In

Seymour v. Superintendent,

368 U.S. 351 , 82 S.Ct. 424 , 7 L.Ed.2d 346 (1962), the Supreme Court, quoting the passage from

Celestine, supra,

held that the boundaries of the southern half of the Colville Indian Reservation remain intact notwithstanding the opening of the reservation to non-Indian settlement by Act of Congress in 1906, and the prior disestablishment of the northern half of the reservation.

34

Unlike the 1892 Act, which provided that the north half be “vacated and restored to the public domain,”

35

the 1906 Act

36

and the 1916 Presidential Proclamation

37

implementing the Act did not “purport to affect the status of the remaining part of the reservation. ..”

Id.,

368 U.S. at 354 , 82 S.Ct. at 426 . Rather, the 1906 Act merely “opened” the Colville Reservation to non-Indian homesteading, consistent with the purposes of the allotment policy:

Consequently, it seems clear that the purpose of the 1906 Act was neither to destroy the existence of the diminished Colville Indian Reservation nor to lessen federal responsibility for and jurisdiction over the Indians having tribal rights on that reservation. The Act did no more than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.

Id.

368 U.S. at 356 , 82 S.Ct. at 427 .

38

Even townsites within the opened reservation were held to remain a part of the reservation, and therefore, “Indian country” under 18 U.S.C. § 1151 .

Id.

368 U.S. at 358-59 , 82 S.Ct. at 428-429 .

Important to the Court’s determination of whether the Colville Reservation had been disestablished by the entry of non-Indians were several factors: (1) the express language of legislation effecting the reser

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vation; (2) the deposit of proceeds from the sale of reservation lands to non-Indians into tribal funds rather than the general funds of the United States; (3) subsequent legislation acknowledging by reference the continuing existence of the reservation; and (4) subsequent administrative determinations by the Department of the Interior and the Department of Justice recognizing continuation of reservation status.

The Supreme Court did not again decide a controversy involving reservation disestablishment until 1973 in the case of

Mattz v. Arnett,

412 U.S. 481 , 93 S.Ct. 2245 , 37 L.Ed.2d 92 (1973). In

Mattz ,

a unanimous Court held that the Klamath River Indian Reservation continued to exist within its defined boundaries despite a number of attempts to end the reservation. Reaffirming the fundamental policy expressed in

Celestine

and

Seymour ,

the Court in

Mattz

set forth this standard:

A congressional determination to terminate [a reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. See

Seymour v. Superintendent,

368 U.S. 351 [, 82 S.Ct. 424 , 7 L.Ed.2d 346 ] (1962);

United States v. Nice,

241 U.S. 591 [, 36 S.Ct. 696 , 60 L.Ed. 1192 ] (1916).

Id.

412 U.S. at 505 , 93 S.Ct. at 2258 (footnote omitted). The

Mattz

opinion adds the factors of legislative history and “surrounding circumstances” to the criteria expressed in

Seymour .

39

The court may thus look behind the written words of statutory law to determine their meaning and purpose within the spirit of their time, but that historical inquiry is to be carefully channeled. Repeated unsuccessful efforts by members of Congress to terminate a reservation cannot persuade a court that the ultimate legislation opening a reservation was intended to diminish its boundaries without an additional showing of consistent intent. In

Mattz ,

for example, the House had tried repeatedly to terminate the Klamath River Reservation but had failed at every attempt. In 1892, the House passed a bill ending the reservation. H.R. 38, 52d Cong., 1st Sess. See 23 Cong.Rec. 125, 1598-99 (1892). That bill was struck out by the Senate which substituted a more moderate bill mandating allotment of the reservation under the General Allotment Act of 1887, 23 Cong.Rec. 3918-19 (1892), a bill supported by the Interior Department. At conference, the Senate version as agreed to, with amendments, and then passed, becoming the operative legislation opening the reservation.

40

The

Mattz

Court cautioned against reliance on the legislative history of the unsuccessful House bills:

[T]he respondent’s reliance on the House Report and on comments made on the floor of the House is not well placed; although the primary impetus for termination of the Klamath River Reservation had been with the House since 1871, this effort consistently had failed to accomplish the very objectives the respondent now seeks to achieve. . .. The legislative history relied upon by the respondent does not support the view that the reservation was terminated; rather, by contrast with the bill as finally enacted, it compels the conclusion that efforts to terminate the reservation by denying allotments to the Indians failed completely.

Id.

412 U.S. at 503-504 , 93 S.Ct. at 2257 .

The Court further refused to draw a negative inference as to the effect of the actual allotment statute:

A second conclusion is also inescapable. The presence of allotment provisions in the 1892 Act cannot be interpreted to mean that the reservation was to be terminated. ... More significantly, throughout the period from 1871-1892

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numerous bills were introduced which

expressly

provided for the termination of the reservation and did so in unequivocal terms. Congress was fully aware of the means by which termination could be affected. But clear termination language was not employed in the 1892 Act. This being so, we are not inclined to infer an intent to terminate the reservation.22

22 Congress has used clear language of express termination when that result is desired. ... [Examples omitted.]

Id.

412 U.S. at 504 , 93 S.Ct. at 2257 .

41

The

Mattz

opinion also treats with great care the subsequent legislative and administrative references to the Klamath River Reservation. Noting that “[although subsequent legislation usually is not entitled to much weight in construing earlier statutes,

United States v. Southwestern Cable Co.,

392 U.S. 157, 179 , 88 S.Ct. 1994, 2006 , 20 L.Ed.2d 1001 (1968), it is not always without significance,”

id.,

412 U.S. at 505 n.25, 93 S.Ct. at 2258 , the Court found support in legislation by which Congress extended the trust status of allotments within the reservation and restored undisposed-of lands within the boundaries to tribal ownership. At the same time, the Court discounted past-tense references to the reservation (e.

g.,

to “what was the Klamath River Reservation”) in legislation as indicating disestablishment, noting that Klamath River had been annexed at that time to the larger Hoopa Valley Reservation and concluding that the past-tense reference “is not to be read as a clear indication of congressional purpose to terminate.”

Id.,

412 U.S. at 498 , 93 S.Ct. at 2254 .

42

Mattz ,

like

Seymour ,

found additional support for continuing reservation status in federal administrative treatment of the reservation.

Mattz

elaborated upon the criteria set forth in

Seymour

setting the stage for decisions that followed. In 1975 the Supreme Court decided

DeCoteau v. District County Court,

420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 (1975), dealing with the Lake Traverse Indian Reservation in South Dakota. In 1891, Congress passed a law ratifying an 1889 agreement with the Sisseton and Wahpeton bands of the Sioux Nation which provided for the allotment of Lake Traverse Reservation lands to the Indians and the unqualified cession of the unallotted “surplus” lands to the United States in return for a sum-certain payment.

43

Those lands were subsequently opened to white settlement with disastrous consequences for the Indians. See D. McNickle, They Came Here First 220-224 (2d ed. 1975). In

DeCoteau ,

a majority of the Court led by Justice Stewart found a number of factors that militated against a finding of continued reservation status: contemporaneous views of white and Indians alike tended strongly .towards the conclusion that ratification of the 1889 Agreement would end the reservation. The Agreement recited cession language that was “precisely suited” to disestablishment by cession.

44

The 1889 Agreement was ratified in the same bill with similar agreements, the sponsors of the bill acknowledging that the agreements would return the ceded lands to the public domain. The “jurisdictional history” of the reservation offered little support for a finding of continu

*1089

ing reservation status.

Id.

420 U.S. at 431-449 , 95 S.Ct. at 1086-1095 .

45

This Court does not lightly conclude that an Indian reservation has been terminated. “[W]hen Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.”

United States v. Celestine,

215 U.S. 278, 285 [, 30 S.Ct. 93, 94 , 54 L.Ed. 195 ]. The congressional intent must be clear, to overcome “the general rule that ‘[doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.’ ”

McClanahan v. Arizona State Tax Comm’n.,

411 U.S. 164, 174 , [ 93 S.Ct. 1257, 1263 , 36 L.Ed.2d 129 ], quoting

Carpenter v. Shaw,

280 U.S. 363, 367 [, 50 S.Ct. 121, 122 , 74 L.Ed. 478 ]. Accordingly, the Court requires that the “congressional determination to terminate ... be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.”

Mattz v. Arnett,

412 U.S. at 505 [, 93 S.Ct. at 2258 ], See also

Seymour v. Superintendent,

368 U.S. 351 , [ 82 S.Ct. 424 , 7 L.Ed.2d 346 ], and

United States v. Nice,

241 U.S. 591 [, 36 S.Ct. 696 , 60 L.Ed. 1192 ]. In particular, we have stressed that reservation status may survive the mere opening of a reservation to settlement, even when the moneys paid for the land by the settlers are placed in trust by the Government for the Indians’ benefit.

Mattz v. Arnett, supra,

and

Seymour v. Superintendent, supra.

But in this case, “the face of the Act,” and its “surrounding circumstances” and “legislative history,” all point unmistakably to the conclusion that the Lake Traverse Reservation was terminated in 1891. The negotiations leading to the 1889 Agreement show plainly that the Indians were willing to convey to the Government, for a sum certain, all of their interest in all of their unallotted lands.

Id.

420 U.S. at 444-445 , 95 S.Ct. at 1092-1093 .

The

DeCoteau

majority was not deterred by the fact that a finding of disestablishment left the Indians with only their allotments:

It is true that the Sisseton-Wahpeton Agreement was unique in providing for cession of all, rather than simply a major portion of, the affected tribe’s unallotted lands. But, as the historical circumstances make clear, this was not because the tribe wished to retain its former reservation, undiminished, but rather because the tribe and the Government were satisfied that retention of allotments would provide an adequate fulcrum for tribal affairs. In such a situation, exclusive tribal and federal jurisdiction is limited to the retained allotments.

Id.

420 U.S. at 446 , 95 S.Ct. at 1094 (citations omitted).

46

*1090

Two years following

DeCoteau ,

the Court decided

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 , 97 S.Ct. 1361 , 51 L.Ed.2d 660 (1977).

Rosebud

presented the most complex factual situation considered by the Court so far, and required the construction of three separate Acts of Congress. In 1904, 1907 and 1910 Congress opened portions of the Rosebud Indian Reservation to non-Indian entry and settlement.

47

In determining whether the three acts diminished the boundaries of the Rosebud Indian Reservation, Justice Rehnquist, writing for the majority, synthesized the following guiding principles:

In determining whether or not the 1889 Reservation boundaries were subsequently diminished by congressional enactments, we are guided by well-established legal principles. The underlying premise is that congressional intent will control.

DeCoteau v. District County Court, supra,

[420 U.S.] at 444, 449 [ 95 S.Ct. at 1092, 1095 ];

United States v. Celestine,

215 U.S. 278, 285 [, 30 S.Ct. 93, 94 , 54 L.Ed. 195 ] (1909). In determining this intent, we are cautioned to follow “the general rule that ‘[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.’ ”

McClanahan v. Arizona State Tax Comm’n.,

411 U.S. 164, 174 [, 93 S.Ct. 1257, 1263 , 36 L.Ed.2d 129 ] (1973), quoting

Carpenter v. Shaw,

280 U.S. 363, 367 [, 50 S.Ct. 121, 122 , 74 L.Ed. 478 ] (1930); see also

Mattz v. Arnett, supra,

[412 U.S.] at 505 [, 93 S.Ct. at 2258]. The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status.

Mattz

v.

Arnett, supra;

see also

Seymour v. Superintendent,

368 U.S. 351 [, 82 S.Ct. 424 , 7 L.Ed.2d 346 ] (1962). But the “general rule” does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary.

DeCoteau v. District County Court, supra.

In all cases, “the face of the Act,” the “surrounding circumstances,” and the “legislative history,” are to be examined with an eye toward determining what congressional intent was.

Mattz v. Arnett, supra,

[412 U.S.] at 505 [93 S.Ct. at 2258].

Id.,

430 U.S. at 586-587 , 97 S.Ct. at 1362-1363 .

Applying those principles to the facts of that case, the majority in

Rosebud

found that “the Acts of 1904, 1907 and 1910 did clearly evidence congressional intent to diminish the boundaries of the Rosebud Sioux Reservation.”

Id.

at 587 , 97 S.Ct. at 1363 . In 1901 the Indians had consented to a cession of a portion of their reservation on terms similar to those in

DeCoteau .

48

That

*1091

Agreement failed of ratification in the Congress because of disagreement over the “sum-certain” method of payment. From this unratified Agreement, Justice Rehnquist discerned “an unmistakable baseline purpose of disestablishment.”

Id.

at 592, 97 S.Ct. at 1366 . A modified version of the Agreement was submitted to the Sioux in 1903 gamering only a simple majority of the Indians’ approval. Though lacking the three-fourths majority previously understood to be required,

49

Congress enacted the 1903 “Agreement” into the 1904 Act, relying upon the Supreme Court’s decision in

Lone Wolf v. Hitchcock,

187 U.S. 553 , 23 S.Ct. 216 , 47 L.Ed. 299 (1903) for authority.

50

Noting that the 1904 Act contained cession language that seemed “precisely suited to disestablishment” under

DeCoteau ,

the

Rosebud

majority found requisite congressional intent to diminish the reservation. The opinion buttresses this finding by observing that Congress provided that state school sections be selected in the opened area and by noting the “long-standing assumption of jurisdiction by the State” over the opened area.

Id.

430 U.S., at 599-601 ,

51

603-605, 97 S.Ct. at 1369-1370, 13711372 . The majority further found that the same intent to diminish was embodied in the 1907 and 1910 Acts.

52

*1092

Reading all of these cases together, this Court has sought to evaluate the record in this case pursuant to the following ladder of priorities: (1) the express language of Congress as found in the relevant statutes and its legal effect; (2) the legislative history of a statute, particularly where the language of the statute is ambiguous; (3) contemporaneous interpretations by the President and the executive branch; subsequent congressional and administrative actions and interpretations; other “surrounding circumstances,” including school lands selections, “jurisdictional history” (disputed as it is), the intent and understanding of the Indians; and other factors, all weighed against the unique historical context in which they arise. At all times, the effort of this Court has been to harmonize its analysis herein with the principles expressed in

Rosebud, DeCoteau, Mattz

and

Seymour ,

and by other courts in other cases, see note 32,

supra,

to the extent that an analogy can be drawn from each case based upon its particular facts. All of the factors considered in this case have been measured by the principle mandated by the Supreme Court as recently as

Rosebud, supra,

that “ ‘[djoubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.’ ”

Id.,

430 U.S. at 586 , 97 S.Ct. at 1362 , quoting

Carpenter v. Shaw,

280 U.S. 363, 367 , 50 S.Ct. 121, 122 , 74 L.Ed. 478 (1930).

Rosebud

requires that “a congressional determination to terminate [an Indian reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.”

Id.,

430 U.S. at 586 , 97 S.Ct., at 1362 , quoting

Mattz, supra,

412 U.S., at 505 , 93 S.Ct., at 2258 .

53

Other cases generate a presumption that Congress does not intend the impractical result of “checkerboard jurisdiction” over trust and fee lands absent specific language to that effect.

Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463, 478 , 96 S.Ct. 1634, 1643 , 48 L.Ed.2d 96 (1976);

Seymour v. Superintendent, supra,

368 U.S. at 358 , 82 S.Ct. at 428 ;

United States v. Long Elk,

565 F.2d 1032 , 1039 & n.12 (8th Cir. 1977).

This Court’s task has been to apply in a reasoned manner the principles described above to the historical record herein and to determine whether that record provides “the hard evidence necessary to overcome the general presumption against an intent to disestablish a reservation,”

United States v. Long Elk,

565 F.2d 1032, 1040 (8th Cir. 1977).

The pages that follow report this Court’s findings and conclusions.

IV. EARLY HISTORY OF THE UTE RESERVATIONS

At the time that Europeans made their first significant contact with the Ute Indians, the Utes dwelled within a territory that included large portions of Colorado, Utah and Northern New Mexico. The Ute economy was based largely upon hunting and gathering of food.

As hunters, the Utes used areas far beyond their borders, especially in the plains area around the eastern area of

*1093

their residing area. The game which formed their principal subsistanee included large game such as elk, deer, bear, antelope and buffalo. A wide variety of smaller animals were also a part of their diet, as well as trout, berries, and a variety of seeds.

F. O’Neil, “A History of the Ute Indians of Utah Until 1890,” at 1 (unpub. Ph.D. dissert., Univ. of Utah 1973).

The Ute people were generally organized into several bands, which included (ca. 1830): Tumpanuwac, Pahvant (now Uintah), Yamparka (White Rivers), Wiminuc (now Ute Mountain), Taviwac (or Tabeguache, now Uncompahgre), Kapote (now Capote), and Muwac (Muache).

54

The plaintiff Ute Indian Tribe is comprised of the present Uintah, White River and Uncompahgre Bands.

While the Utes maintained significant contact with the Spanish settlements to the south, Spanish activities had negligible effect on the extent of the Ute territory. Trade and commerce dominated the relationship.

55

The arrival thereafter of Anglo-American fur trappers and explorers heralded a different course of events. The early decades of the nineteenth century saw a scattering of white explorers, adventurers and mountain men burgeon into a steady flow of white intruders into Ute country. Conflicts developed between Indian and white, and relations decayed until the economic collapse of the fur trade in the 1840’s.

56

The mountain men were followed by the Mormons, who sought to settle upon lands in Ute country and make them their home. The struggle for possession of the most fertile lands, those in Utah Valley and other locations commenced soon thereafter:

The arrival of white settlers was not particularly disturbing to Utah’s Indians since the Great Salt Lake was a border area between the Utes and the Shoshoni bands which ranged over the Great Basin west of there. As the Mormons moved south, however, taking up new land, the Indians were crowded off their central settlements, in Utah Valley and elsewhere. This southern thrust prompted Ute resistance — first at Battle Creek in 1850 — and then the so-called “Walker War” of 1853-54.

O’Neil, “The Reluctant Suzerainty: The Uintah and Ouray Reservation,” 39

Utah Historical Quarterly

129, 130 (Spring 1971).

Fort Utah, which became Provo, Utah, for example, was founded upon the central campsite of the Tumpanuwac Band of Utes. The lands were of considerable value to the Utes, being abundant in fish, game, forage for horses and fresh water. The Utes resisted and were either killed, or captured and removed from their homelands.

57

For a time, the federal Indian Agent for Utah, Dr. Garland Hurt, established a small system of three Indian farm reserves which were intended to provide support and sustenance for the Utes, Paiutes and others.

58

*1094

However, the farms were plagued by disorganization and funding problems and became entangled in the conflict between the Mormons and the federal government that surged in the late 1850’s. Many Ute people died of starvation and exposure during the bitter winters of 1859-60 and 1860-61.

59

When a new federal Superintendent of Indian Affairs, Benjamin Davies, arrived in Utah in early 1861, the Utes were, according to Davies, in a “state of nakedness and starvation, destitute and dying of want.”

60

Davies was forced to close the farms, selling the implements to buy food for the Indians.

By 1860, the traditional solution of Indian removal could no longer be delayed. The Mormon towns and villages had been generous in supplying food, but this could not serve as a permanent arrangement. After an experience of general disagreement, the federal officials and the Mormon settlers finally agreed that the Indians must be moved.

F. O’Neil, “A History of the Ute Indians of Utah ...,”

supra,

at 51.

The valley of the Uintah Basin had already been proposed as a possible reservation for the Indians of Utah by Superintendent Davies’ predecessor. At the suggestion, Governor Brigham Young delegated a survey team to the basin to see whether the lands were suitable for settlement by the Mormons. Receiving a negative report,

61

the Governor did not oppose the federal officials’ request to Washington that the basin be set aside as an Indian reservation. Less than a month after the survey team’s return President Lincoln approved the Secretary of the Interior’s proposal and designated the Uintah Basin as a reservation by the Executive Order of October 3, 1861.

62

The federal government initially made little effort to provide a viable agency establishment on the Uintah Valley Reservation or to afford the Utes any incentive for moving there. Combined with the closing of the Indian farms, the Indian Bureau’s neglect at Uintah left the Utes to their own devices. The bands scattered into loose associations of families which hunted, gathered and raided for food. A number of Utes prosecuted a series of raids upon white livestock and settlements.

Acting pursuant to congressional directive, O. H. Irish, new Superintendent of Indian Affairs for Utah, succeeded in securing the presence of many of the Utes at a treaty council at the old Indian farm at Spanish Fork, Utah, which was held in June, and included the presence of ex-Governor Brigham Young.

63

On June 8, 1865,

*1095

the assembled Utes concurred in a draft of a treaty by which they ceded all right, title and interest in their lands in Utah in return for the guarantee of possession of the Uintah Valley Reservation, to which they agreed to remove.

64

The treaty also made detailed provision for the staffing and operation of the Uintah Agency, and provided that the 291,480 acres of Indian farm reservations be sold, proceeds to be applied to improvements at the Uintah Reservation.

65

Superintendent Irish held a similar council with the Weber Utes, securing their agreement to the terms of the Spanish Fork Treaty under Article I of an abbreviated treaty of October 30, 1865.

66

While Irish and Young were adamant in their insistance that the Indians sign the treaty, they apparently failed to indicate to the Indians that there was doubt as to ratification of the treaties by the Senate. After all, Congress on February 23, 1865 had authorized a budget of $25,000 to finance the negotiation of these treaties.

67

A year earlier, Congress had mandated the sale of the small “farm” reservations and had confirmed the establishment of the Uintah Valley Reservation.

68

Yet when submitted, the treaties failed of ratification.

69

The uneasy peace generated by the Spanish Fork Council and agreement to the treaty by the Indians soon decayed again into armed conflict. Rejection of the treaty left the Utes without the promised economic support and with a strong sense of betrayal. The brush fire war that continued in the territory for the next four years came to be known by the name of its leader: the Black Hawk War.

The war was costly. Bancroft wrote that “more than fifty of the Mormon settlers were massacred, and an immense quantity of livestock captured, and so widespread was the alarm that many of the southern settlements were for the time abandoned, the loss to the community exceeding $1,000,000.” [H. Bancroft, History of Utah 632-33 (1889).] The war dragged on until the Indians were forced into defeat by the superior power of the territorial militia. Under the leadership of Chief Tabby, who favored peace, the reluctant natives were removed to the Uintah Valley...

*1096

O’Neil, “The Reluctant Suzerainty: the Uintah and Ouray Reservation,” 39

Utah Historical Quarterly

129, 131 (Spring 1971), JX 475.

Even those Indians who had removed to the Uintah Valley Reservation in 1866 were compelled by conditions there to venture on raids into the Heber Valley in search of food needed for bare survival. Even after ■hostilities had largely ceased, the early farming efforts at the parsimoniously funded Uintah Agency were largely a failure, leaving the Utes to hunt and forage for food, or continue» raiding on a sporadic basis. On January 3, 1871"the

Deseret Evening News

published an’editorial, '“Brethren, Don’t Kill the -Deer,” urging non-Indians to leave the available wild;game for hunting by the Utes.

A new agent, J. J. Critchlow, was sent to the Uintah Agency in February, 1871. Over the next dozen years, Critchlow struggled to develop a viable' agricultural economy on the reservation, constantly entreating the Utes to stay on the reservation long enough to farm so that they need not leave in search of food. He also engaged in an unending effort to secure adequate federal funding for agency operations. Critchlow’s efforts soon began to bear fruit as some of the Utes made Uintah Valley their permanent residence.

70

In 1875, a federal survey- or, went to the Uintah Valley Reservation to delineate its boundaries.

71

Though the survey did no more ■ than define those boundaries to a great extent, it added credibility to rumors circulating at the Uintah Agency that the reservation would soon be “opened” to white settlement. Agent Critchlow stiffly rebuffed any such effort:

One Great source of discouragement and uneasiness [among the Utes] is the constant apprehension that some radical change, either in their location or in the administration of their affairs, will take place, and thus interfere with all their industrial pursuits. They are afraid that this reservation will be thrown open to white settlers, they be removed to some other place, and thus lose all their labor. .. My own opinion is that any such change would work great injury and injustice to these Indians, yet I know that many in this Territory would do anything to bring it about... .

Report of J. J. Critchlow to Commissioner of Indian Affairs, August 15, 1878, in the Rept. of Comm, of Ind. Aff., 1878, at 624. By 1880 the Utes were already feeling pressure upon their boundaries; trespassing was becoming a problem on the western end of the reservation, and the rise of non-Indian towns such as Ashley (now Vernal) presaged a growing white presence near the ■Utes.

At that same time, pressure on the Utes of Colorado at their large reservation created by the Treaty of March 2, 1868, 15 Stat. 619 , II Kapp. 990 (2d ed. 1904), LD No. 7, was growing to firestorm proportions. The battle-cry “The Utes Must Go!” echoed across that state, fired by a combination of outrage over the 1879 killing of Nathan Meeker, the utopian Agent to the Colorado Utes, and his family by the White River Utes, and persistent rumors of mineral wealth underlying the Colorado Ute Reservation. In the view of Colorado’s Governor Pitkin the Utes should either be removed or killed:

My idea is that, unless removed by the government, they must necessarily be exterminated .... The state would be willing to settle the Indian trouble at its own expense. The advantages that-would accrue from the throwing open of 12,000,-000 acres of land to miners and settlers would more than compensate all the expenses incurred.

*1097

Quoted in

D. Brown, Bury My Heart at Wounded Knee 366 (1970).

Custer’s defeat at the Battle of the Little Big Horn having happened a mere three years before, sympathy for the Indians was still scarce among influential politicians. The “Meeker Massacre” joined “Custer’s Last Stand” as a popular pretext for coercing the cession of vast expanses of Indian real estate previously guaranteed by treaty.

72

Besides securing the removal of the White River Utes from Colorado and placing them upon the Uintah Valley Reservation over the protests of Agent J. J. Critchlow,

73

the government also secured the “consent” of the Uncompahgre Utes to a removal agreement signed March 6, 1880 and ratified by Congress on June 15. See Act of June 15, 1880, 21 Stat. 199 , LD 11.

The text of that agreement provided for a new home for the Uncompahgres and White Rivers:

The Uncompahgres Utes agree to remove to and settle upon agricultural lands on Grand River near the mouth of the Gunnison River in Colorado, and such other unoccupied agricultural lands as may be found in that vicinity and in the territory of Utah.

The White River Utes agree to remove to and settle upon agricultural lands on the Uintah Reservation in Utah.

While the Uncompahgres Utes were originally intended to be resettled near the present location of Grand Junction, Colorado,

74

a federal commission selected a rectangular area of land in eastern Utah bordering on Colorado’s western boundary.

75

The reservation selected for the Uncompahgres was largely comprised of arid lands barren of fertile soil, a sharp contrast to the rich forests, meadows and ranges that the Utes left behind in Colorado.

76

The Ute Commission, which selected the lands for the Uncompahgres, made an important recommendation:

Until the Indians can be made somewhat familiar with their new relations, it is ... of vital importance to maintain the exterior boundary limits of the lands upon which they dwell as a reservation, and within which white men may not be allowed to locate. This protection may be secured by legislation or possibly by executive order. For years to come these Indians should certainly have the aid of the government in protecting them from collision with white men.

Report of the Commissioner of Indian Affairs, 1881, at 383. An agency was established at Ouray in 1881 as well as a military post, Fort Thornburg. Non-Indians living in the region were paid the value of their

*1098

improvements and removed.

77

By an Executive Order dated January 5,1882 President Chester A. Arthur set apart the Uncompahgre lands as an Indian reservation. I Kapp. 901 (2d ed. 1904), LD 12 (see Appendix A for text).

The removal of the Uncompahgre Band to their new home in eastern Utah was plagued with a number of difficulties. In spite of the fact that the Uncompahgres were expected to found an agricultural economy upon lands that were “a wild and ragged desolation,”

78

Ouray Agent J. F. Minniss in his first report described the Uncompaghres as “orderly, quiet and peacefully disposed with a disposition to their welfare.”

79

The reservation would not support them, their attitude notwithstanding; a number of Uncompahgre Utes ventured back into Colorado to hunt, giving rise to no small amount of excitement among the white settlers. See, e. g., O’Neil, “The Reluctant Suzerainty ...,

supra,

JX 475 at 136-137; Annual Rept. of the Secretary of the Interior, 1887, JX 14, at 283-286.

In 1886, the military post of Fort Duchesne was established and the Uintah Agency and the Ouray Agency were consolidated under its roof.

80

The move was made partly for administrative efficiency but also to enable the federal officials to exercise greater direct control — even military control — over all the bands. The Utes had barely begun to settle down on their reservation homes and farms when they began to feel the pressure of white encroachment upon their remaining lands.

As in Colorado, it was the discovery of mineral deposits in Utah which forced the Utes to lose more land. The mineral was gilsonite. Although the presence of gilsonite was well known in the 1860 — 1870’s, it was not until the 1880’s that two promoters, Sam Gilson and Bert Seabolt, publicized the materials and found uses for it. In January, 1886 Seabolt filed the first recorded gilsonite claims — all of them in the Carbon Vein, which was located on the Uintah Indian Reservation. He organized a group to begin commercial mining.

O’Neil and MacKay, “A History of the Uintah-Ouray Ute Lands,”

supra,

JX 483 at 15 (footnote omitted).

The government opened a series of roads across the Uintah Valley Reservation. Ashly Valley, east of Fort Duchesne, was settled beginning in 1878 by a group of Mormon settlers. Even the establishment of Fort Duchesne attracted unsavory characters to Indian country, creating additional problems. See O’Neil, “A History of the Ute Indians ...,”

supra,

at 181. The Utes also felt pressure on their western boundary as white ranchers from Heber ran their livestock onto the lands in the Strawberry Valley. Agent T. A. Byrnes confronted the cattlemen, demanding either payment of an informal “lease” fee or removal of stock. Byrnes estimated that there were 6,000 cattle illegally grazing on the Uintah Reservation in 1887 alone.

Id.,

at 183 — 184. The “familiar forces”

81

of non-Indian ranchers, farmers, miners, railroads, etc. were closing in on Ute country as they had in other places, forcing the eventual reduction of the Indian land base.

82

VII. THE 1888 CESSION

In response to Ute complaints about white trespassing in the eastern end of the

*1099

Uintah Valley Reservation, Agent Byrnes recommended that the “Gilsonite Strip” be removed from the reservation; after all, the lands “are not, nor have they been, used or occupied by the Indians, for the reason that they are not fit for agricultural or grazing purposes.” Letter of Agent Byrnes to J. Atkins of Feb. 18, 1888,

quoted in

JX 483 at 15.

83

Speaking of the Gilsonite Strip, Captain J. Randlett of Fort Duchesne observed:

[DJetachment by sale will occasion no inconvenience to the tribes. If the Gilsonite enterprise proves a success, the Indians will see how profits are made from industry and will also to some extent find at the mines a market for their own products... It will be very agreeable to the isolated garrison to have a settlement near it.

Letter of Capt. Randlett to Agent Byrnes of Feb. 18, 1888,

quoted in

JX 483 at 15.

Congress soon joined in the view that the best interests of everyone would be served by excising the Gilsonite Strip from the Uintah Reservation. See H.Rep.No.791, 50th Cong., 1st Sess. (1888) LD 15; S.Rep. No.1198, 50th Cong., 1st Sess. (1888) LD 17; 19 Cong.Rec. 1927-1929, 3776, 3821 (1888), LD 16. By the Act of May 24,1888, ch. 310, 25 Stat. 157 , I Kapp. 271 (2d ed. .1904) LD 18, Congress mandated that the 7,040-acre triangular Gilsonite Strip be “declared to be public lands of the United States and restored to the public domain.”

Id.

§ 1. The Act directed the Secretary of the Interior to procure the approval of a three-fourths majority of the adult male Indians on the reservation and upon such ratification, to sell the lands at not less than $1.25 an acre.

Id.

§§ 2, 3. After “much proselyting”

84

the ratification by the Indians was secured on October 8, 1888, and on October 22, the Secretary of the Interior restored the land to the public domain and ordered surveys to be conducted. See Letter of Acting Comm, of Ind. Aff. to Secretary of the Interior of Sept. 9,1899, JX 116; Report of Uintah and Ouray Agency

in

Rept. of the Comm, of Ind. Aff., 1890, JX 18, at 280. By letter of July 9, 1895, JX 45, the Commissioner of Indian Affairs reported to Agent J. Randlett that sale of some of the lands had been completed and that the United States Treasury had credited $3,340 to the Utes. Other sales followed. It is abundantly clear to this Court that the 1888 cession area, known as the Gilsonite Strip, was restored to public lands status and that the boundaries of the Uintah Valley Reservation were diminished to that extent.

85

A congressional intent to diminish the reservation was indeed “expressed on the face of the Act” and is “clear from the surrounding circumstances and legislative history.”

Mattz

v.

Arnett,

412 U.S. 481, 505 , 93 S.Ct. 2245, 2258 , 37 L.Ed.2d 92 (1973);

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584, 586 , 97 S.Ct. 1361, 1362 , 51 L.Ed.2d 660 (1977). The Ute Tribe asserts a contrary view, citing some congressional debate on whether the effect of the 1888 Act was to restore the strip to the public domain,

86

and arguing that only a

*1100

change of land title was intended. Plaintiff’s Post-Trial Brief at 57-59. In

Rosebud Sioux Tribe v. Kneip, supra,

the Supreme Court acknowledged the authority of the cases holding that ceded lands can remain in trust for the Indians until actually sold. See

Ash Sheep Co. v. United States,

252 U.S. 159 ,166, 40 S.Ct. 241, 242 , 64 L.Ed. 507 (1920);

Minnesota v. Hitchcock,

185 U.S. 373, 395, 401-402 , 22 S.Ct. 650, 661 , 46 L.Ed. 954 (1902); accord,

Hanson v. United States,

153 F.2d 162, 163 (10th Cir. 1946) (Uintah lands). But the

Rosebud

majority found that question to be “logically separate from a question of disestablishment.”

Rosebud, supra,

430 U.S. at 601 n.24, 97 S.Ct. at 1370 . While an inference can justifiably be drawn from the continuing trust status of the affected lands, that factor is one among many “surrounding circumstances.” Here it is soundly refuted by clear expressions of legislative intent, the use of language precisely suited to disestablishment, cf.

Seymour v. Superintendent,

368 U.S. 351, 354 , 82 S.Ct. 424, 426 , 7 L.Ed.2d 346 (1962), and unconflicting contemporaneous interpretations of the effect of the Act. In a November 18, 1895 letter to the Secretary of the Interior, the Commissioner of Indian Affairs comments that the 1888 Act

had been fully executed in accordance with its intent so far as the securing of the consent of the Indians

to the diminution of their reservation and the restoration of said strip of land to the public domain,

and that, therefore, the jurisdiction of the United States Indian Agent are the same ceased from and after October 22, 1888____

id, JX 50 at 1 (emphasis added). In fact, the federal officials had come to regret the withdrawal of the strip from the reservation because of problems caused by the influx of squatters onto the lands.

87

When several Uncompahgre Utes selected allotments that were found to be within the 1888 cession area, officials sought instructions on how to protect their rights. See Letter from Comm, of Gen. Land Off. to the Register and Receiver of April 27, 1899, JX 114. This evidence of the circumstances surrounding the 1888 cession is uncontroverted by the plaintiff and compels the conclusion that the strip was severed from the Uintah Reservation in 1888. See

Rosebud Sioux Tribe v. Kneip, supra.

88

VIII. THE UNCOMPAHGRE RESERVATION

Contemporaneous with the 1888 cession, gilsonite veins were discovered on the Uncompahgre Reservation, touching off another drive to have the mineral lands ceded by the Indians.

George W. Gordon was sent by the Interior Department in June [1889] to inspect the area. In his report of July 31, he described the area as containing second or third-rate pastureland, barren mountains, hills and alkaline patches. The report gave support to the rationale that the lands could be removed since “the Indians do not, and probably never will, need the lands embraced therein or make any use of them whatsoever.”

O’Neil & MacKay, “A History of Uintah-Ouray Ute Lands,” JX 483, at 16 (footnote

*1101

omitted); see H.Rep.No.2967, 51st Cong., 1st Sess. LD 21 (1890). Almost immediately, Congress sought to excise a 12-mile strip of gilsonite lands from the Uncompahgre Reservation. See S. 1762, 51st Cong., 1st Sess.,

reprinted in

S.Ex.Doc.No.157, 51st Cong., 1st Sess. (1890). On June 17, 1890, the bill was vetoed by President Harrison, who found it to be detrimental from a policy standpoint. See Veto Message of the President, June 17, 1890, LD 20. Three months later, S. 4242 was introduced “to change the boundaries of the Uncompahgre Reservation,” see H.Rep.No.3305, 51st Cong., 2d Sess., LD 22 (1890), but it died at the end of the session. A similar bill, S. 574, was favorably reported by the Committee on Indian Affairs in February of 1892, see S.Rep.No.240, 52d Cong., 1st Sess. (1892), as was H.R. 69, another bill to “change the boundaries of the Uncompahgre Reservation.” See H.Rep.No.1076, 52d Cong., 1st Sess. (1892). Neither of the bills passed.

At the same time, it was apparent to Robert Waugh, Indian Agent at Fort Duchesne, that any plans for allotment at Uncompahgre would face difficulties. See letter of Agent Waugh to Comm, of Ind. Aff. of Dec. 19, 1892, JX 29. But concern for the gilsonite and other minerals easily outweighed concern for the Utes in the minds of Washington officials. In 1893 the Secretary of the Interior secured the opinion of Assistant United States Attorney General Hall on the status of the Uintah and Uncompahgre lands. While Hall determined that the Uintah reservation was “owned” by its Indian residents,

It is clear to my mind that the Uncompahgre Utes have not title to the lands they occupy; that they occupy these lands as a temporary reservation, until such time as the President may require them by virtue of the agreement, and the Act of 1880, to take their allotments within the limits of said reservation.

Letter from Asst. Atty. Gen. Hall to Secretary of the Interior of Oct. 23, 1893, JX 30, at 8.

89

Hall relied upon language in the Agreement of 1880, LD 11, which indicated that the Uncompahgre lands were reserved for the purposes of making allotments and a provision requiring that the allotted lands be paid for out of a fund generated from the sale of the Ute lands in Colorado at the rate of $1.25 an acre.

In 1894, three bills were introduced providing “for opening the Uncompahgre and Uintah reservations.” H.R. 4511, 6557; see S.Rep.No.450, 53d Cong., 2d Sess., 4027 (1894).

90

Though these bills were not enacted

91

the Indian Appropriations Act for that year included H.R. 6557, with changes:

Sec. 20. That the President of the United States is hereby authorized and directed to appoint a commission of three persons to allot in severalty to the Uncompahgre Indians within their reservation, in the Territory of Utah, agricultural and grazing lands according to the

*1102

treaty of eighteen hundred and eighty, as follows:

“Allotments in severalty of said lands shall be made as follows: To each head of a family one-quarter of a section, with an additional quantity of grazing land not exceeding one-quarter of a section; to each single person over eighteen years of age, one-eighth of a section, with an additional quantity of grazing land not exceeding one-eighth of a section; to each orphan child under eighteen years of age, one-eighth of a section, with an additional quantity of grazing land not exceeding one-eighth of a section; to each other person under eighteen years of age, born prior to such allotment, one-eighth of a section, with a like quantity of grazing land: Provided, That, with the consent of said commission, any adult Indian may select a less quantity of land, if more desirable on account of location: And

provided,

That the said Indians shall pay one dollar and twenty-five cents per acre for said lands from the fund now in the United States Treasury realized from the sale of their lands in Colorado as provided by their contract with the Government. All necessary surveys, if any, to enable said commission to complete the allotments shall be made under the direction of the General Land Office. Said commissioners shall, as soon as practicable after their appointment, report to the Secretary of the Interior

what portions of said reservation are unsuited or will not be required for allotments,

and thereupon such portions so reported

shall, by proclamation, be restored to the public domain

and made subject to entry as hereinafter provided.”

Sec. 21. That the remainder of the lands on said reservation, shall, upon approval of the allotments by the Secretary of the Interior, be immediately open to entry under the homestead and mineral laws of the United States: Provided, That no person shall be entitled to locate more than two claims, neither to exceed ten acres, on any lands containing asphaltum, gilsonite, or like substances:

Provided,

That after three years actual and continuous residence upon agricultural lands from the date of settlement the settler may, upon full payment of one dollar and fifty cents per acre, receive patent for the tract entered. If not commuted at the end of three years the settler shall pay at the time of making final proof the sum of one dollar and fifty cents per acre.

Sec. 22. That said commission shall also negotiate and treat with the Indians properly residing upon the Uintah Indian Reservation, in the Territory of Utah, for the relinquishment to the United States of the interest of said Indians in all lands within said reservation not needed for allotment in severalty to said Indians, and if possible, procure the consent of such Indians to such relinquishment, and for the acceptance by said Indians of allotments in severalty of lands within said reservation, and said commissioners shall report any agreement made by them with said Indians, which agreement shall become operative only when ratified by Act of Congress.

Sec. 23. That said commissioners shall receive six dollars per day each, and their actual and necessary traveling and incidental expenses while on duty, and to be allowed a clerk, to be selected by them, whose compensation shall be fixed by said commissioners, subject to the approval of the Secretary of the Interior:

Provided,

That the cost of executing the provisions of this Act shall not exceed the sum of sixteen thousand dollars, which sum is hereby appropriated for that purpose out of any moneys in the Treasury not otherwise appropriated.

Act of Aug. 15, 1894, ch. 290, 28 Stat. 286 , 337-338, I Kapp. 546 (2d ed. 1904), LD 35. (emphasis added).

Agent Randlett soon informed the Secretary of the Interior that there were insufficient agricultural lands available on the Uncompahgre Reservation to fully comply with the intended allotment program. Randlett suggested that additional lands be made available on the more hospitable Uintah reservation. Letter of Agent Randlett

*1103

to Secretary of the Interior of Dec. 12,1894, JX 35.

92

However, a three-man commission was appointed to carry out the 1894 Act provisions and began meeting with the Uncompahgre in January 1895. The Ute Commission struggled with a number of problems, including substantial Indian opposition to the Act’s provisions.

93

The Commission’s effort to carry out the 1894 Act failed. See H.Doc.No.191, 54th Cong., 1st Sess., LD 39 (1896); S.Doc.No.161, 54th Cong., 1st Sess., LD 41 (1896). The Commission was relieved of its duties on February 4, 1896, S.Doe.No.32, 55th Cong., 1st Sess., LD 46, at 3 (1897), while the Secretary sought additional funds to commence negotiations with the Utes at Uintah, see H.Doc.No.28, 54th Cong., 1st Sess., LD 40 (1896), which were appropriated in June. Act of June 10, 1896, ch. 398, 29 Stat. 321 , 341-342, I Kapp. (2d ed. 1904), LD 42. By resolution of January 16,1896, the House of Representatives asked of the Secretary the probable time for execution of statutes providing “for a restoration to the public domain of certain lands within the Uncompahgre Indian Reservation in the Territory of Utah.” The Secretary recommended appointment of another commission to negotiate with the Uncompahgres. See 1 Report of the Secretary of the Interior, 1896, H.Doc.No.5, 54th Cong., 2d Sess., JX 52, at xlviii-li.

94

In the meantime, the Uncompahgre Reservation remained under pressure from trespassers and the “familiar forces” of local non-Indian interests.

95

The trespass problem worsened in 1897; the agency found that a number of reservation boundary markers had been moved, necessitating resurvey of the lines.

96

One party of trespassing prospectors was financed by the Governor of Utah, and others, in order to provoke litigation testing the legality of the reservation itself. Report of Capt. Day, 9th Cavalry, JX 70; Letter from Agent Rand

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lett to Comm, of Indian Aff. of March 15, 1897, JX 69. Federal prosecution of trespassers was repeatedly recommended

97

and federal troops were requested to support Agent Randlett.

98

After extensive debate, which dealt more with the disposition of the Uncompahgre mineral deposits than with the welfare of the Uncompahgres,

99

Congress enacted provisions that mandated the allotment and opening of the Uncompahgre Reservation:

The Secretary of the Interior is hereby directed to allot agricultural lands in severalty to the Uncompahgre Ute Indians now located upon or belonging to the Uncompahgre Ute Indian Reservation in the State of Utah, said allotments to be upon the Uncompahgre and Uintah Reservation or elsewhere in said State.

And all the lands

of said Uncompahgre Reservation

not theretofore allotted in severalty to said Uncompahgre Utes shall, on and after the first day of April, eighteen hundred and ninety-eight, be open for location and entry under all the land laws of the United States;

excepting, however, therefrom all lands containing gilsonite, asphalt, elaterite, or other like substances.

Act of June 7, 1897, ch. 3, 30 Stat. 62 , 87, I Kapp. 621 (2d ed. 1904), LD 49 (emphasis added).

Allotment of the Uncompahgre Reservation was to be conducted under the 1897 Act, the 1894 Act and the 1880 Agreement, considered together. See Opinion of Ass’t. Atty. Gen. Van Devante, 25 I.D. 97, JX 76 (1897).

100

It quickly became apparent that the allotment process at Uncompahgre could not be completed within the time allowed. When Agent Randlett reported on June 30, 1897, no allotments had yet been made. See Report of Agent Randlett

in

Rept. of the Comm, of Ind. Aff., 1897, JX 81, at 286.

101

The Uncompahgre Commission, James Jeffreys, Ross Guffin and Howell Myton, were directed to proceed with assignment of allotments under instructions approved August 27, 1897. See

id.;

Instructions to Uncompahgre Commissioners of Aug. 26, 1897, JX 77; Letter from Comm, of Ind. Aff. to the Secretary of the Interior of Aug. 26, 1897, JX 78; Letter from the Comm, of Ind. Aff. to the Uncompahgre Commission of Aug. 31,1897, JX 79; Rept. of the Comm, of Ind. Aff. 1897, JX 75 at 92-93. Troubled by these events, the Uncompahgres sent a delegation to Washington, D. C.,

102

where they tentatively

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agreed to accept allotments on the Uintah Valley Reservation if adequate land could not be found at Uncompahgre. See Rept. of the Secretary of the Interior, 1897, H.Doc.No.5, 55th Cong., 2d Sess. at xlii-xliii. Even with tentative agreement by all three Ute bands to this allotment program,

103

it was clear to those involved that additional time was still needed.

Id.;

Letter from Acting Agent Cornish to Comm, of Ind. Aff. of Feb. 17,1898, JX 93 (more time “absolutely essential to enable allotments to be made”). Deep snow and poor weather rendered the work of the Commission impossible for months.

104

While the Indian Department had some success in pushing a six-month delay through the Senate,

105

the effort ultimately failed. The Uncompahgre Commission was so informed by telegram

106

and the “opening” went ahead on April 1, 1898 as scheduled. Federal troops were again called to the reservation, this time to keep order and prevent anyone from making unlawful claims.

107

The Uncompahgre Commission had failed to make a single allotment within the Uncompahgre Reservation prior to April 1. Rept. of the Comm, of Ind. Aff., 1898, JX 108, at 42,

in

H.Doc. No. 5, 55th Cong., 3d Sess. The Commission proceeded in May to make 75 allotments on the Uncompahgre Reservation, but the Commissioner of Indian Affairs doubted the legality of making Indian allotments after the April 1 opening date, the lands having become a part of the “public domain.”

Id.

at 43. By separate legislation, Congress ultimately confirmed 83 allotments made within the Uncompahgre Reservation. See Act of Mar. 1,1899, ch. 324, 30 Stat. 924 , 940-41, I Kapp. 686 (2d ed. 1904), LD 61; Letter from Comm, of Ind. Aff. to Secretary of the Interior of Apr. 12, 1899, JX 113; Rept. of the Comm, of Ind. Aff., 1899, JX 117, at 43-44. 584 Uncompahgre allotments on the Uintah Reservation were finally approved in 1905. See Rept. of the Comm, of Ind. Aff., 1905, JX 323, at 146; Letter from Secretary of the Interior of July 7,1905, JX 281.

At the urging of the Secretary of the Interior, and after lengthy debate, Congress had withheld the gilsonite and other mineral lands from entry, frustrating the major object of the opening of the Uncompahgre Reservation. Over a year following the “opening” not a single non-Indian homestead entry had been made upon the Un

*1106

compahgre Reservation. The Agent (and former Uncompahgre Commissioner), H. P. Myton, recommended that either the lands be returned to the Utes, or the gilsonite and other mineral lands be opened. Report of Agent Myton, 1899, JX 115. In the meantime, the Uncompahgres ranged into Colorado hunting for food. Letter from the Comm, of Ind. Aff. of Dec. 11,1899, JX 118. The lands were not then returned, nor were the mineral lands opened to entry until 1906. See Act of Mar. 3, 1903, ch. 994, 32 Stat. 982 , 998, IV Kapp. 17-18 (1913), JX 332 (even-numbered sections of mineral land opened); Interior Dept. Circular of June 25, 1906, 34 I.D. 649 (1907), JX 333.

The plaintiff Ute Indian Tribe argues herein that the original exterior boundaries of the Uncompahgre Reservation remain intact notwithstanding events that transpired at the turn of the century. Review of the applicable legislation, its legislative history and contemporaneous as well as subsequent interpretations of the legislation and of the status of the reservation compel this Court to conclude that the boundaries of the Uncompahgre Reservation set forth in the Executive Order of January 5, 1882 were extinguished by Congress under the Act of June 7, 1897.

The express terms of the Act of August 15, 1894, 28 Stat. 286 , 337, LD 35, expressed in plain language congressional intent to disestablish the Uncompahgre Reservation following the distribution of allotments in severalty; the “surplus” unallotted lands were to be “restored to the public domain.” 28 Stat. at 337. Express language restoring most of an Executive Order Indian Reservation to the public domain is plainly suited to disestablishment. In

Seymour v. Superintendent,

368 U.S. 351 , 82 S.Ct. 424 , 7 L.Ed.2d 346 (1962), a similar statute “vacated and restored to the public domain” the north half of the Colville Reservation in the State of Washington, diminishing the reservation to that extent.

108

Id.,

368 U.S. at 354-356 , 82 S.Ct. at 426 — 427. The proponents of the 1894 Ute legislation repeatedly characterized the reservation as a temporary one, intended to endure only until agricultural and grazing lands could be allotted to the Uncompahgre Utes. Correspondence contemporaneous with the establishment of the 1882 reservation supports the proponents’ argument. For example, in a letter from the Commissioner of Indian Affairs to the Secretary of the Interior of July 18, 1884, it was said:

As a matter of fact the Uncompahgre Reservation so-called, was set apart simply to enable the Department to control without interference from white settlers, a sufficient quantity of land to give each individual Indian the quantity which it was agreed he should have by the terms of the Ute agreement [of 1880]. I do not think it was intended as a permanent reservation, and I presume that whenever the Indians are settled upon their allotments, the reservation as present existing will be discontinued.

Quoted in

Memorandum Relating to the Proposed Withdrawal of Certain Lands for Uncompahgre Ute Indians, Office of Indian Affairs, 1931, JX 426, at 4. The 1894 Act was intended to fulfill that purpose, releasing the remaining lands for non-Indian exploitation. The plaintiff correctly observes that the 1894 Act was not successfully executed; allotments were not assigned, nor were the gilsonite deposits opened to lawful mining.

The reservation instead was opened under the provisions of the Act of June 7, 1897, 30 Stat. 62 , 87, LD 49. The 1897 Act did not precisely mirror the “public domain” language of the 1894 Act. Plaintiff argues that the 1897 Act repealed the 1894 Act, defeating any “baseline purpose” of disestablishment arising from the public domain language. See Plaintiff’s Post-Trial Brief at 45-47. However, the 1897 Act provides that the unallotted lands of the reservation were to “be open for location and entry under all the land laws of the United States,” excepting lands containing gilsonite and related minerals. 30 Stat. at 87.

*1107

The language is not identical, but the result under the 1897 Act would be the same as under the 1894 Act as far as the reservation is concerned. Restoring land “to the public domain” as a practical matter opens the land to location and entry under “all of the land laws” of the United States; “The words ‘public lands’ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.”

Newhall v. Sanger,

92 U.S. 761, 763 , 23 L.Ed. 769 (1875). Statements in the congressional debate on the 1897 Act indicate that the main thrust of the 1897 Act was to mandate the execution of the purposes of the 1894 Act by the Executive Branch. See 30 Cong.Rec. 716-717, 817,826 (1894), LD 45.

The significant change enacted in the 1897 Act dealt with the gilsonite and related mineral lands; limited entry was permitted under the 1894 Act, but was forbidden under the 1897 Act. To this extent the 1897 Act repealed the 1894 Act, as plaintiff asserts. The manner of disposition of these lands is, however, irrelevant to the question confronted here because in either instance, Congress intended that from the date of “opening” under either act the unallotted lands would no longer be part of an Indian reservation.

The Tribe relies upon statements in congressional ¡debates on the legislation for support for a narrower view of the 1897 Act. Clearly the legislation raised doubts and inspired opposition. See 30 Cong.Rec. 712-720, 814-821, 826-833 (1897) LD 45. The simple fact is that those who questioned, doubted and opposed the legislation

lost;

the “familiar forces” prevailed, regardless of the apparent fairness or suitability of the legislation as far as the Indians were concerned. Plaintiff cites no statement by the proponents of the 1897 Act indicating that the Uncompahgre Reservation was intended to survive the opening, and this Court has found none.

That Congress was “satisfied that the retention of allotments would provide an adequate fulcrum for tribal affairs.”

DeCoteau v. District County Court,

420 U.S. 425, 446 , 95 S.Ct. 1082, 1094 , 43 L.Ed.2d 300 (1975), is borne out by the subsequent events surrounding the Uncompahgre lands. Counsel for the defendant state and counties have catalogued the past-tense legislative references to “the former Uncompahgre Reservation” in the briefs.

109

The treatment of the Uncompahgre lands following opening on April 1, 1898 confirms the above interpretation of the 1897 Act with startling uniformity. The record in this case offers no jurisdictional history contrary to the view that the 1882 boundaries were dissolved in 1897. Far from evidencing continuing recognition of the whole reservation, the administrative treatment of the lands following April 1, 1898 reflects the concern that even the few allotments reserved to the Uncompahgres would soon fail, leaving the Indians with nothing. The proposed solution was to consolidate the Uncompahgre band on allotments within

*1108

the Uintah Valley Reservation, abandoning the 1882 lands altogether.

110

In large part, the Uncompahgres were given allotments on the Uintah Valley Reservation following agreement by the Uintah and White River Bands to the arrangement.

111

See Act of June 7, 1897, ch. 3, 30 Stat. at 87, I Kapp. 621, LD 49. Though some Indians continued to assert the claim that the 1882 reservation still existed, the Bureau of Indian Affairs apparently made a formal determination in 1929 that the reservation no longer existed.

112

Similarly, the Justice Department, appearing herein as

amicus curiae

representing the United States, has remained silent on the continued reservation status of the 1882 lands. In other proceedings, the United States has steadfastly denied the reservation’s continuing existence.

113

The plaintiff finds little support in the circumstances surrounding the opening of the 1882 reservation; the Tribe’s interpretation of events and language is strained at best.

In this Court’s opinion, any colorable ambiguity in the historical record is laid to rest

*1109

by the express language used by Congress in the Act of March 11,1948, Pub.L. 80 — 440, 62 Stat. 72 , VI Kapp. 375-381 (1980), LD 187. That Act provides as follows:

Be it enacted

..., That the exterior boundary of the Uintah and Ouray Reservation in Grand and Uintah Counties, in the State of Utah, for the benefit of the Ute Indian Tribe of the Uintah and Our-ay Reservation, is hereby extended to include the following area:

******

Omitted here is the legal description of the body of lands known as the Hill Creek Extension of the Uintah and Ouray Reservation. The described lands fall largely within the original boundaries of the Uncompahgre Reservation. If that reservation still remained intact, what purpose was served by the metes-and-bounds description of the “exterior boundary” of the Uintah and Ouray Reservation by Congress in the 1948 Act?

The legislative

114

and administrative history

115

that culminated in the 1948 legislation consistently regards the area of grazing lands set apart in the Hill Creek Extension as the “new” Ute Reservation, a restoration of a portion of the “old” Uncompahgre Reservation to Indian use. For example, in response to an inquiry by the Interior Department’s Director of Grazing regarding the status of the “old” reservation, Assistant Commissioner of Indian Affairs William Zimmerman, Jr., reported that “it is the belief of this office that the undisposed of lands within the former Uncompahgre Indian Reservation, Utah, have the status of public lands of the United States,” temporarily withdrawn in aid of legislative efforts resulting in the 1948 Act, Letter from Ass’t. Comm, of Ind. Aff. to Director, Div. of Grazing of Aug. 8, 1939, JX 447.

The same opinion is expressed in the committee reports explaining the enacted bill. See H.Rep.No.1372, 80th Cong., 2d Sess., LD 186 (1948); S.Rep.No.749, 80th Cong., 1st Sess., LD 184 (1947). The purpose of the bill, explains the House Committee Report, was “to enlarge the Uintah and Ouray Reservation by some 510,000 acres,” LD 186, at 2, and, indeed, that is what the 1948 Act did. It did not establish a grazing reserve within an existing Indian reservation

116

because no such reservation re

*1110

mained in existence.

117

Agent Myton understated the situation when he wrote in his report for August 21, 1899 that “I think the Uncompahgre Indians have been treated very badly,” JX 117, at 351. The reservation, which had been created for the purpose of providing allotments to the Uncompahgre Utes under the Agreement of 1880, was restored to the public domain at the insistance of non-Indian interests before a single allotment had been made. Fifty years passed before a viable Indian land base was re-established in the area by the 1948 Act. That Act, and not the Executive Order of January 5,1882, defines the territorial extent of the plaintiff’s reservation in the vicinity of the former Uncompahgre Reservation. Based upon the express language of the 1897 Act, its legislative history, contemporaneous and subsequent legislative and administrative interpretations of its effect, and the jurisdictional history of the 1882 lands this Court is compelled to conclude that the 1882 Uncompahgre Reservation was disestablished by Congress pursuant to the Act of June 7, 1897.

118

Rosebud Sioux

*1111

Tribe v. Kneip,

430 U.S. 584 , 97 S.Ct. 1361 , 51 L.Ed.2d 660 (1977);

Seymour v. Superintendent,

368 U.S. 351, 354-56 , 82 S.Ct. 424, 426-427 , 7 L.Ed.2d 346 (1962).

IX. THE UINTAH RESERVATION

Concurrent with the drive to open the Uncompahgre Reservation was a similar effort to negotiate an agreement with the Uintah and White River Bands providing for the allotment of their lands and the cession of the unallotted “surplus” acreage. Bills were introduced in Congress in 1894 providing for the allotment and opening of both reservations.

E. g.,

S. 1887, H.R. 4511, H.R. 6557, 53d Cong., 2d Sess. (1894); See Rept. of the Secretary of the Interior, 1894, JX 37, at 90, 469; S.Rep.No.450, 53d Cong., 2d Sess., LD 27 (1894); H.Rep.No.660, 53d Cong., 2d Sess., LD 30 (1894). As observed at pages 48 — 49,

supra,

the provisions of H.R.6557 were substantially included in the Indian Appropriations Act for 1894 as sections 20-23. See Act of Aug. 15, 1894, ch. 290, 28 Stat. 286 , 337-338, I Kapp. 546 (2d ed. 1904), LD 35. Under the provisions of this Act a distinction appeared between the legislative approach to the Uncompahgre Reservation and the approach to the Uintah Valley Reservation. While section 20 of this Act ordered the appointment of a commission to proceed directly with allotment of the Uncompahgre lands, section 22 provided as follows:

Sec. 22. That said commission shall also negotiate and treat with the Indians properly residing upon the Uintah Indian Reservation, in the Territory of Utah, for the relinquishment to the United States of the interest of said Indians in all lands within said reservation not needed for allotment in severalty to said Indians, and if possible, procure the consent of such Indians to such relinquishment, and for the acceptance by said Indians of allotments in severalty of lands within said reservation, and said commissioners shall report any agreement made by them with said Indians, which agreement shall become operative only when ratified by Act of Congress.

The rationale for this contrasting treatment of the Uintah Reservation is expressed in House Report No. 660, LD 30, at 1-3:

The rights of the Indians upon the Uintah Reservation differ from those of the Indians upon the Uncompahgre Reservation. The Uncompahgre Indians have no title to any of the lands within the reservation, nothing more than the privilege of temporary occupancy.. . .

******

As to the Uintah Indians the Assistant Attorney-General finds that the Indians are the owners of the lands within the reservation, because under the Act of Congress of May 5, 1864 ( 13 Stat. 64 [LD 4]), it was provided that the lands within the Uintah Reservation should be “set apart for the permanent settlement and exclusive occupation of the Indians.” In order, therefore, to make available for settlement any portion of the lands within the Uintah Reservation, it is first necessary to obtain the consent of the Indians residing thereon. Accordingly, the bill provides that the commissioners appointed shall treat with the said Indians for the purpose of obtaining a relinquishment of their title to any lands not needed for allotment to Indians.

See also, Letter from Ass’t. Atty. Gen. Hall to the Secretary of the Interior of Oct. 23,

*1112

1893, JX 30; page 48 & note 89,

supra.

Far from unilaterally restoring all but the allotted lands to the public domain for wholly non-Indian exploitation, as was done at Uncompahgre, congressional intent in 1894 as to the Uintah Reservation pursued a different goal.

If the consent of the Indians upon the Uintah Reservation can be obtained, by which they will accept allotments of land in severalty, and the remainder of the lands is sold and the proceeds derived are used for the benefit of the Indians, this condition will be much better than it is at present. These Indians have already made considerable progress toward civilization, and are entirely competent to receive lands in severalty, and are in a condition to reclaim and improve them.

If the residue of the lands are settled by whites the Indians will be more directly brought in contact with civilization and be able to make greater progress by the example thus afforded them.

H.Rep.No.660, 53d Cong., 2d Sess., LD 30, at 3 (1894) (emphasis added).

119

Though primary attention was directed to restoring the mineral lands at Uncompahgre to non-Indian entry, see 26 Cong.Rec. 7032-7033, 7256-7260 (June 30,1894), LD 33, there was some pressure to open the Uintah Reservation as well.

120

Under the Indian Appropriations Act for 1896 an additional commission was directed to negotiate with, among others, “the Indians residing upon the Uintah Reservation in the State of Utah, for the surrender of any portion of their respective reservations, or for such modification of existing treaties as may be deemed desirable by said Indians and the Secretary of the Interior; ...” Act of June 10,1896, ch. 398, 29 Stat. 321 , 341-342, LD 42.

121

Progress on the negotiations was slow to commence. In a report to the Senate dated April 8, 1897, the Commissioner of Indian Affairs stated:

As a matter of fact, there was but very little correspondence between this office and the [Ute] commission directly relating to the negotiations with the Indians of the Uintah Reservation. It was made the first duty of the commission to deal with the Uncompahgre Indians in accordance with section 20 of the Act [of 1894]. Indeed, the work of the commission never progressed beyond that point, and about

*1113

all of the correspondence with them related to the Uncompahgres — the allotment of lands in severalty to them and the contemplated restoration to the public domain of the surplus not needed for allotment.

[T]hey were not expected to úndertake the negotiations with the Uintah Indians until they had finished their labor with the Uncompahgres.

S.Doc.No.32, 55th Cong., 1st Sess., LD 46, at 2-3 (1897), JX 73, at 3. See H.Doc.No.101, 54th Cong., 1st Sess., LD 39 (1896) (“Uncompahgre Indian Reservation”). A month later, Senator Rawlins of Utah introduced S. 1883, a bill creating a new commission to make allotments in severalty to the Indians at the Uintah Reservation and to obtain the cession of any unallotted lands. 30 Cong. Rec. 880 (May 4, 1897), LD 47. Rep. King of Utah introduced an identical bill in the House, H.R. 7760. 31 Cong.Rec. 1486 (Feb. 5, 1898), LD 50. See H.Rep.No.1172, 55th Cong., 2d Sess., LD 53, (1898).

122

The bills were enacted as the Act of June 4,1898, ch. 376, 30 Stat. 429 , I Kapp. 642-43 (2d ed. 1904), LD 54 (see Appendix A for text).

123

Negotiations on allotment with the Uintah and White River Utes were a total failure. The White River Band particularly was unalterably opposed to the allotment and cession of the Uintah Reservation lands.

E. g.,

Letter from Acting Agent Beck to the Comm, of Ind. Aff. of Sept. 1, 1897, JX 80. After holding meetings with “individual and influential” Uintah and White River Utes, Commissioner Ross Guffin wrote:

The Indians were unanimous and determined in their opposition to making cession to the government of any of their lands and to allowing an Uintah or White River Indian to take and hold an allotment in severalty on said reservation.

Letter from Comm. R. Guffin to the Comm, of Ind. Aff. of Jan. 7, 1899,

quoted in

JX 483, at 26.

A White River and Uintah Ute delegation travelled to Washington in November, 1898, emphasizing their opposition to the congressional proposal:

Our land is small and we do not want to sell it to anyone. We do not want any commission sent there; we are opposed to that. We have no more land than we want ourselves for our own use.

Statement of Sasanuckit,

et al.,

of November 24,1898,

quoted in

JX 483 at 25-26 & n. 130.

In the meantime, the Office of Indian Affairs had begun the practice of leasing parcels of land on the Uintah Reservation for grazing and mining purposes. See O’Neil & MacKay, “A History of the Uintah-Ouray Ute Lands,” JX 483, at 23 — 26 & nn. 110-134 (1977).

124

Leasing on the Uin

*1114

tah Reservation quickly aroused controversy; Senator Rawlins of Utah saw leasing as a major stumbling block in the path of his own legislative proposals, which sought to reduce the Uintah Reservation to merely its northeast corner, permitting the sale of the remainder. See S. 145, 57th Cong., 1st Sess. (1902) (The text of the bill is reproduced in S.Doc.No.212, 57th Cong., 1st Sess., LD 68, at 3-4 (1902).). Pressure from interested lessors rather than the Indians’ own desires was perceived to be at the root of Indian opposition to the opening of the Uintah Reservation.

125

Hearings on leasing on the Uintah Reservation were held, see “Leasing of Indian Lands,” Hearings, Sen. Comm, on Ind. Aff., S.Doc.No.212, 57th Cong., 1st Sess., LD 68 (1902), and documents were requested from the Interior Department. See S.Doc.No.154, 57th Cong., 1st Sess., LD 66 (1902); Letter from the Comm, of Ind. Aff. to Sen. Wm. Stewart, Chmn., Sen. Comm, on Ind. Aff. of Mar. 4,1902, JX 126. At the hearings, Indian Affairs Commissioner Jones commented,

There is a sort of feeling among the ignorant Indians that they do not want to lose any of their land. That is all there is to it; and I think before you can get them to agree to open the reservation, you have got to use some arbitrary means to open the land.

S.Doc.No.212, LD 68,

supra,

at 5. The Utah congressional delegation eagerly sought such arbitrary means. Rep. George Sutherland spoke at the hearings, arguing that the Utes did not really “own” their reservation at Uintah and therefore that Ute consent need not be obtained to accomplish a cession. Referring to the termination of the four early Indian farm reserves, which Congress restored to the public domain in 1878,

126

Sutherland asserted that the same could be done at Uintah.

127

S.Doc.No.212, LD 68,

supra,

at 109-120.

Senator Rawlins’ diminishment bill did not pass.

128

Other important language was,

*1115

however, included in the Indian Appropriations Act of 1902:

That the Secretary of the Interior,

with the consent thereto of the majority of the adult male Indians

of the Uintah and the White River tribes of Ute Indians, to be ascertained as soon as practicable by an inspector, shall cause to be allotted to each head of a family eighty acres of agricultural land which can be irrigated and forty acres of such land to each other member of said tribes, said allotments to be made prior to October first, nineteen hundred and three, on which date

all the unallotted lands within said reservation shall be restored to the public domain: Provided,

That persons entering any of the said land under the homestead law shall pay therefor at the rate of one dollar and twenty-five cents per acre;

And provided further,

That nothing herein contained shall impair the rights of any mineral lease which has been approved by the Secretary of the Interior, or any permit heretofore issued by direction of the Secretary of the Interior to negotiate with said Indians for a mineral lease; . . .

Act of May 27, 1902, ch. 888, 32 Stat. 245 , 263-264, I Kapp. 750, 753 (2d ed. 1904), LD 82 (emphasis added). The Act further provided that the mineral lessees and permit-tees in lieu of their leases could locate up to 640 acres of contiguous mineral lands upon the area to be restored to the public domain, with one exception: “the Raven Mining Company, which may in lieu of its lease locate

one hundred mining claims

of the character of mineral mentioned in its lease ...”

Id.,

32 Stat., at 264 (emphasis added). Proceeds from the entry of the restored lands were to be used first to pay the expenses incurred under the Act; the remainder to be used for the benefit of the Utes.

Id.

The Act additionally provided for payment of $60,064.48 to the Uintah and White River Utes “on account of the allotment of lands on the Uintah Reservation to Uncompahgre Indians,”

129

and $10,000 for claims arising from the 1888 cession, discussed

supra.

Payment of the money was to be made “whenever a majority of the adult male Indians of said tribes shall have consented to the allotment of lands and the restoration of the unallotted lands ...”

Id.

Though the legislative history of the 1902 Act is comparatively sparse, see 35 Cong. Rec. 3650-3651, 3711 (1902), LD 70; S.Rep. No.951, LD 69,

supra,

at 3,

130

it seems clear that Congress did not accept Rep. Sutherland’s view that the reservation should be opened unilaterally; Indian consent conditioned all operative clauses of the Act. See

Deseret Evening News,

June 9, 1902, JX 148 at 1 (comments of Sen. Rawlins).

130A

President Theodore Roosevelt signed the 1902 Act into law on May 28, 1902, 35 Cong.Rec. 6069 (1902), but not without serious concerns. The President objected in particular to the favored treatment that the Act afforded the mining lessees.

131

He

*1116

signed the bill upon assurances by influential congressmen that the Act would be amended to correct the offensive passages.

132

Some amendments were made by Joint Resolution of June 19, 1902:

Resolved

... That the provisions of the Act [of 1902] . . . are hereby supplemented and modified as follows:

‡ ¡‡: $ $ ‡ ‡

In addition to the allotments in severalty to the Uintah and White River Utes of the Uintah Indian Reservation in the State of Utah, the Secretary of the Interior shall, before any of said lands are opened to disposition under any public land law, select and set apart for the use in common of the Indians of that reservation such an amount of non-irrigable grazing lands therein at one or more places as will subserve the reasonable requirements of said Indians for the grazing of live stock.

All allotments hereafter made to Uncompahgre Indians of lands in said Uintah Indian Reservation shall be confined to agricultural land which can be irrigated, and shall be on the basis of eighty acres to each head of a family and forty acres to each other Indian, and no more. The grazing land selected and set apart as aforesaid in the Uintah Indian Reservation for the use in common of the Indians of that reservation shall be equally open to the use of all Uncompahgre Indians receiving allotments in said reservation of the reduced area here named.

* * * * * *

The item of seventy thousand and sixty-four dollars and forty-eight cents appropriated by the Act which is hereby supplemented and modified, to be paid to the Uintah and White River tribes of Ute Indians in satisfaction of certain claims named in said Act, shall be paid to the Indians entitled thereto without awaiting their action upon the proposed allotments in severalty of lands in that reservation and the restoration of the surplus lands to the public domain.

32 Stat. 744 , I Kapp. 799-800 (2d ed. 1904).

133

The funding needed to execute the amended 1902 Act was not immediately forthcoming. A year later, in the Indian Appropriations Act of March 3, 1903, ch. 994, 32 Stat. 982 , 997-998, III Kapp. 17-18 (1913), LD 91, Congress provided funds to do surveying and to carry out the 1902 Act. The 1903 Act further provided

That the Secretary of the Interior shall forthwith send an inspector to obtain the consent of the Uintah and White River Ute Indians to an allotment of their lands as directed by the Act of May twenty-seventh, nineteen hundred and two, and

if their consent,

as therein provided,

cannot be obtained

by June first, nineteen hundred and three, then

the Secretary of the Interior shall cause to be allotted to each of said Uintah and White River Ute Indians

the quantity and character of land named and described in said Act . . .

*1117

32 Stat., at 997-998 (emphasis added).

134

The time for opening the unallotted lands was extended to October 1, 1904.

Id.

By letter of April 29, 1903, JX 133, 160, the acting Commissioner of Indian Affairs delivered formal instructions for allotting the Uintah Reservation to U. S. Indian Inspector James McLaughlin. See Instructions to J. McLaughlin, Esq., JX 133, 159. McLaughlin was instructed to meet in council with the Ute bands “and endeavor to obtain their consent to the allotment of lands.”

Id.,

at 5.

135

He met with the Uintah and White River Utes at the Uintah and Ouray Agency from May 18 through May 23,1903. McLaughlin was in the peculiar position of one who was delegated to negotiate Indian consent to a chain of events that would occur regardless of the outcome of the negotiations. Accordingly, he argued to the Utes that they had no choice but to agree:

INSPECTOR McLAUGHLIN: * * *

My friends, you want to get rid of this idea that you have the say whether your reservation can be opened or not. You are simply to say whether or not you will accept allotments. The survey for your reservation is already advertised for. The work will commence in a few months. After the survey is completed, allotments will be made.... This is the condition, my friends, and it is your duty to accept it gracefully because the law of the great council [Congress] has said so....

Minutes of councils with the Uintah and White River Ute Indians, JX 162, at 34 (1903).

136

The council reached immediate impasse, the Indians wholly opposed to the allotment and opening of the reservation and McLaughlin adamantly refusing to discuss the question. The Indians responded to McLaughlin’s stubbornness with reciprocal obstinance, even humor:

QUINN: * * *

Where did you find the key to this reservation to open it? That’s the reason I don’t understand even if you do say it is provided for. I don’t believe it. You say you are here, and that you have this paper as your authority.

*1118

If they find the key to this reservation, to open it we will give it to you. You come and throw it on the table and say, “Here, I have the key to this reservation. Throw it down here so I can see it. When you throw your key to the reservation out here, I will believe you.

4c s(« & * *

INSPECTOR McLAUGHLIN: * * *

I feel, my friends that I have done my duty in this matter. I have explained it so clearly that you cannot fail to understand it fully, but it is very difficult to convince persons who do not want to be convinced.. . .

Id.,

JX 162, at 66, 71.

Inspector McLaughlin reported to the Secretary of the Interior on May 30, 1903 that of 280 adult male Uintah and White River Utes, he was able to secure the signatures upon the assent to the allotment statute of only 82 of the Indians:

I deemed it proper to transmit the same, but with the explanation that

the signers were as much opposed to the opening of the reservation

without consulting the Indians

as the non-signers were,

but they thus expressed their acceptance of the law to show their good will and readiness to comply with the wishes of the Government.

Letter from Insp. McLaughlin to the Secretary of the Interior of May 30,1903, JX 165, at 5 (emphasis added),

reprinted in

H.Doc. No.33, 58th Cong., 1st Sess., LD 92, at 3-7 (1903). According to McLaughlin, the Indians were “unanimously opposed to the opening of their reservation under the provisions of the Act,”

id.,

at 8.

Those of the Indians who signed the acceptance of the Act, did so, as heretofore stated, to show their good will, and many others would doubtless have signed had there been anything to be gained by their doing so. They fully understood that they were to have land allotted to them whether they consented to the Act or not, and having nothing to lose by refusing to assent to the provisions of the Act they declined to sign and thus became a party to that which was distasteful to them. ...

Id.,

JX 165, at 9.

Indian consent to the opening of the Uintah Reservation was wholly lacking in 1903, and never subsequently appeared. While several exhibits make reference to the “ceded” lands of the Uintah Reservation, these references are erroneous.

137

No cession of Uintah Reservation lands after 1888 was agreed to by even a simple majority of the Utes. Nor was cession language used in any of the relevant legislation affecting the Uintah Reservation. The absence of those “disestablishment factors”

138

distinguishes at least in part the circumstances found in

DeCoteau v. District County Court,

420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 (1975) and

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 , 97 S.Ct. 1361 , 51 L.Ed.2d 660 (1977). Such an agreement of cession had been concluded by the Sioux and ratified by Congress in

DeCoteau

and had been agreed to by a majority of the Sioux and enacted in unilaterally amended form in Rosebud; both of those acts contained express language of cession. To the extent that Indian consent and express language of cession in

DeCoteau

and

Rosebud

aided the Court “in determining that congressional intent was to terminate the Reservation,”

139

that aid is wholly absent here.

The discussions in council did move Inspector McLaughlin to suggest amendments to the opening legislation to provide for creation of Indian timber and coal reserves

*1119

for use by the Utes following allotment. See also Letter from Comm, of Ind. Aff. to the Secretary of the Interior of July 18, 1903, JX 167 (transmitting McLaughlin’s recommendations); Letter from the Secretary of the Interior to the Comm, of Ind. Aff. of Aug. 25,1903, JX 172 (recommendations should be transmitted to next session of Congress). On November 23, 1903, Interior submitted an amendment to the Indian Appropriations bill for 1904 embodying McLaughlin’s recommendations. S.Doc.No. 159, 56th Cong., 3d Sess., LD 101, at 3 (1905).

Though the timber and coal reserves proposal did not pass, Interior succeeded in securing congressional approval of an additional extension of the time for opening the reservation to March 3, 1905. Act of Apr. 21, 1904, ch. 1402, 33 Stat. 189 , 207-208, III Kapp. 35, 53 (1913), LD 94. In July the Secretary authorized the Uintah agent to proceed with allotting lands at Uintah to the Uncompahgres, and in November, expanded that authority to include allotments for the Uintah and White River Utes. S.Doc.No.159, LD 101,

supra,

at 3.

140

Problems confronting the agent and the Office of Indian Affairs ranged from surveying matters,

141

to problems with mines and prospectors,

142

selection of the Indian grazing reserve

143

and protection of water rights for the Indian allottees.

144

Federal

*1120

troops were requested to aid Acting Agent Hall in patrolling the Uintah Reservation and expelling “sooners,” prospectors and other unauthorized trespassers. Letter from the Comm, of Ind. Aff. to the Secretary of the Interior of March 1, 1905, JX 226; e.

g.,

Letter from Secretary of Interior to the Comm, of Ind. Aff. of June 6, 1905, JX 272. While authority was granted to the' Uintah Railway Co. to enter the reservation to survey a right-of-way to be secured under the Act of Mar. 2, 1899,

145

entry by other non-Indians was generally prohibited. The agent restricted travel upon roads passing through the reservation, with the approval of the Commissioner of Indian Affairs.

146

Meanwhile, Congress was inquiring of the Secretary as to the progress being made towards opening. S.Res., 39 Cong.Rec. 1863 (Feb. 4, 1905). The Secretary submitted a report and documents indicating that more time was needed to complete the allotment process. S.Doc.No.159, 58th Cong., 2d Sess., LD 101 (1905). Senator Smoot further had introduced bills dealing with the opening of the Uintah Reservation. S. 6867 provided in part:

That the said unallotted lands, excepting such tracts as may have been set aside as national forest reserve, shall be disposed of under the general provisions of the homestead and townsite laws of the United States, and shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied or entered by persons entitled to make entry thereof; ...

S. 6867, 58th Cong., 3d Sess., LD 97, at 1 — 2. S. 6868 provided for reservation of Uintah timber lands for inclusion in the Uinta Forest Reserve. The described lands were to be “maintained as a national forest reservation,” to be “subject to all the general laws, rules, and regulations now and hereafter in force for national forest reserves,” and were to be “free from any claims of the Uintah and White River tribes of the Ute Indians except for rights and privileges specifically reserved to them in this Act; ...” LD 98, at 6. The bill provided for creation of Indian timber and coal reserves within the Uintah Forest Reserve to be administered under forest reserve regulations. The

*1121

third bill, S. 6869, LD 99, consented to suit in the Court of Claims by the Utes on questions arising under the first two bills.

Though not enacted themselves, the provisions of S. 6867 and 6868 were substantially included in the Indian Appropriations Act of March 3, 1905, ch. 1479, 33 Stat. 1048 , 1069-1070, III Kapp. 124, 146-147 (1913), LD 105 (see Appendix A for text). In pertinent part the 1905 Act provided:

That the time for opening to public entry the unallotted lands on the Uintah Reservation in Utah having been fixed by law as the tenth day of March, nineteen hundred and five, it is hereby provided that the time for opening said reservation shall be extended to the first of September, nineteen hundred and five, unless the President shall determine that the same may be opened at an earlier date and that the manner of opening such lands for settlement and entry, and for disposing of the same, shall be as follows:

That the said unallotted lands,

excepting such tracts as may have been set aside as national forest reserve, and such mineral lands as were disposed of by the act of Congress of May twenty-seventh, nineteen hundred and two,

shall be disposed of under the general provisions of the homestead and town-site laws

of the United States, and shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof; and no person shall be permitted to settle upon, occupy, or enter any of such lands, except as prescribed in said proclamation, until after the expiration of sixty days from the time when the same are thereby opened to settlement and entry: ....

That before the opening of the Uintah Indian Reservation the

President is hereby authorized to set apart and reserve as an addition to the Uintah Forest Reserve, subject to the laws, rules, and regulations governing forest reserves, and subject to the mineral rights granted by the act of Congress of May twenty-seventh, nineteen hundred and two, such portion of the lands within the Uintah Indian Reservation as he considers necessary,

and he may also set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development, and may confirm such rights to water thereon as have already accrued:

Provided,

That the proceeds from any timber on such addition as may with safety be sold prior to June thirtieth, nineteen hundred and twenty, shall be paid to said Indians in accordance with the provisions of the act opening the reservation.

33 Stat., at 1069-1070 (emphasis added).

Additional provisions of the Act repealed the requirement that the Indian grazing lands be located south of the Strawberry River, protected the homestead rights of veterans, provided that unentered lands were subject to limited sale five years hence and readopted the 1902 Act’s distribution of proceeds from entry into the lands. While preserving the mineral rights on the Uintah Reservation created by the 1902 Act’s lease conversion provisions,

147

the 1905 Act mate

*1122

rially altered the operative statutory language governing the opening of the Uintah Reservation to non-Indian entry and settlement.

Without much question, opening of the Uintah Reservation under the original terms of the 1902 Act

148

would have accomplished the termination of the reservation; the unallotted lands were to be “restored to the public domain” — language precisely suited to disestablishment under

Seymour v. Superintendent,

368 U.S. 351, 354-356 , 82 S.Ct. 424, 426-427 , 7 L.Ed.2d 346 (1962), and

Mattz v. Arnett,

412 U.S. 481 , 504 n. 22, 93 S.Ct. 2245, 2257 , 37 L.Ed.2d 92 (1975). The impact of the 1902 Act on the Uintah Reservation’s boundaries was clear at least in the mind of Rep. Sutherland of Utah:

Mr. Chairman, at the last session of Congress [1902] we provided for opening the Uintah Indian Reservation. This bill makes an appropriation of a large part of the $175,000 mentioned in the preceding paragraph for this purpose. This is appropriated for making surveys for allotments and such other surveys as may be necessary to carry that out into operation.

If the Uintah reservation is opened, . . . this appropriation of $6,000 for reestablishing the boundary lines of the reservation is entirely useless.

The boundary lines have been in their present condition for many years, and if by any mischance the reservation should not be opened it will not hurt to let it wait for another year; and if the reservation is opened it is simply an appropriation of $6,000 without any useful purpose whatever. I think it should be stricken from this bill.

* * * * * *

The reservation will be simply restored to the public domain. . ..

36 Cong.Rec. 1388 (Jan. 28, 1903), LD 90 (emphasis added).

The Tribe argues to the contrary, relying heavily upon the repeated references to the “opening” of the reservation as mitigating the plain meaning of the 1902 Act; a reservation that is “opened”, so the argument goes, is not abolished, disestablished, diminished, or terminated. Plaintiff's Post-Trial Brief at 65-80.

There is no question that the Uintah Reservation was “opened” to non-Indian entry and settlement. All of the reservations examined in

Rosebud, DeCoteau, Mattz, Seymour,

and

United States v. Celestine,

215 U.S. 278 , 30 S.Ct. 93 , 54 L.Ed. 195 (1909), and in the numerous cases decided by the Courts of Appeals, were “opened” to non-Indian entry and settlement. Some of those reservations have been disestablished or diminished; others have not. The fact of opening merely leads to the next step in the inquiry. It is the substantive

manner

of opening that has been decisive in this

*1123

line of cases and it is the

manner

of opening that is decisive here.

The manner of opening under the terms of the 1902 Act, restoration of unallotted lands to the public domain, by definition would have ended the reservation status of those lands. The 1903 and 1904 Acts speak of “opening” the Uintah Reservation under the 1902 Act rather than “terminating” it or “abolishing” it, but the operative 1902 public domain language remained in force. The Uintah Reservation, however, was not. opened under the 1902 restoration language.

149

It was opened under the 1905 Act, which provides expressly that “the manner of opening such lands for settlement and entry, and for disposing of the same” shall be that the unallotted lands, excepting national forest

149A

and mineral lands, “shall be disposed of under the general provisions of the homestead and townsite laws of the United States” — not

all

the land laws of the United States, as at Uncompahgre in 1897:

only

the homestead and townsite laws.

In this respect the 1905 Act closely resembles the 1906 legislation that opened but did not disestablish the Colville Reservation in

Seymour ,

150

and the 1892 Act that opened but did not disestablish the Klamath River Reservation in

Mattz .

151

In fact, the defendants cite no disestablishment case holding limited entry under the mineral, homestead and townsite laws to be statutory language “precisely suited to disestablishment,”

Rosebud Sioux Tribe v. Kneip,

430 U.S. at 597 , 97 S.Ct. at 1368 .

152

To the contrary, Indian reservations opened under such provisions have consistently been held to remain in existence.

United States v. Long Elk,

565 F.2d 1032 (8th Cir. 1977) (surplus lands on Standing Rock Reservation disposed of “under the general provisions of the homestead and townsite laws of the United States,” mineral lands to be reserved for late disposition. Act of Feb. 14, 1913, ch. 54, 37 Stat. 675 , III Kapp. 555-558);

United States

v.

Dupris,

612 F.2d 319 (8th Cir. 1979),

vacated as moot,

446 U.S. 980 , 100 S.Ct. 2959 , 64 L.Ed.2d 836 (1980) (surplus land on the Cheyenne River Reservation disposed of “under the general provision of the homestead and town site laws of the United States,” school sections and coal lands to be reserved. Act of May 29, 1908, ch. 218, 35 Stat. 460 , III Kapp. 373-377 (1913))

United States ex rel. Condon v. Erickson,

478 F.2d 684 (8th Cir. 1973) cited with approval in

Mattz, supra,

412 U.S. 481 , 505 n.23, 93 S.Ct. 2245, 2258 , 37 L.Ed.2d 92 (1973) (same);

City of New Town v. United States,

454 F.2d 121 (8th Cir. 1972) (surplus lands of the Fort Bert-

*1124

hold Reservation disposed of under “the provisions of the homestead, mineral and townsite laws of the United States,” tribal forest lands and state school lands reserved. Act of June 1,1910, §§ 8, 9, ch. 264, 36 Stat. 455 , III Kapp. 462-466 (1913)).

153

The Presidential Proclamation of July 14, 1905, 34 Stat. pt. 3, 3119, III Kapp. 605-608 (1913), LD 108,

154

opening the Uintah Reservation to non-Indian settlement parallels the terms of the 1905 Act:

* * * I, Theodore Roosevelt, President of the United States of America, by virtue of the power in me vested by said Acts of Congress, do hereby declare and make known that a

11 the unallotted lands in said reservation,

excepting such as have at that time been reserved for military, forestry and other purposes and such mineral lands as may have been disposed of under existing laws, will on and after the 28th day of August, 1905, in the manner hereinafter prescribed, and not otherwise,

be opened to entry, settlement and disposition under the general provisions of the homestead and townsite laws of the United States; ...

Id.,

LD 108, 34 Stat., pt. 3, at 3120, III Kapp. at 606 (emphasis added).

155

Related proclamations issued in 1905 refer to provisions of the 1905 Act as authority, not the 1902 Act.

156

Meanwhile, the Indian agency officials who formed an allotting commission had proceeded to complete the allotment distribution among the Uintah and White River Utes and other preparations for the opening pursuant to the 1905 Act and the proclamations issued under it.

157

A schedule of allot

*1125

ments was submitted by the Commission to the Commissioner of Indian Affairs on June 23, 1905. Letter from Ute Allot. Comm, to Comm, of Ind. Aff. of June 23, 1905, JX 278. The schedule was duly approved by the Secretary of the Interior on July 18, 1905. Letter from the Acting Secretary- of the Interior to the Comm, of Ind. Aff. of July 18,1905, JX 292. The reservation was to be opened pursuant to the “Rosebud Regulations,” a random selection, controlled entry procedure applied the year before in the opening of the Rosebud Reservation in South Dakota.

158

See

Deseret Evening News,

July 8, 1905, JX 282, at p. 5;

Deseret Semi-Weekly News,

Mar. 20, 1905, JX 236 at 2; 39 Cong.Rec. 1183-1184 (Jan. 21, 1905), LD 103 (remarks of Rep. Sherman); note 169,

infra.

While the press was reporting that the Indians were content with the ongoing process of allotment and opening of the Uintah Reservation,

e. g., Deseret SemiWeekly News,

Apr. 13, 1905, JX 250, at 5, all was not well. A Ute delegation had traveled to Washington in March, communicating their strong opposition to the forthcoming events. See

Deseret Evening News,

Mar. 18, 1905, JX 235, at 2;

id.,

Mar. 22, 1905, JX 237, at 2. As spring turned to summer, rumors of a possible armed uprisw by the Utes circulated and were investigated and disproved by federal officials.

159

By a series of proclamations issued by President Roosevelt, Uintah Reservation lands were withdrawn for incorporation in the Uintah Forest Reserve,

160

set aside for reservoir purposes

161

and designated as townsites.

162

Interior officials additionally designated reservation lands for various purposes relating to the Indians, exempting those lands from homestead entry.

163

Of the reservation area of over two million acres, 1,010,000 acres were added to the Uintah Forest Reserve, 2,100 acres designated in townsites, 60,160 acres set aside for reclamation and reservoir purposes, 2,140 acres entered as mining claims, and 1,004,-285 were opened to homestead entry. 282,-460 acres were reserved for various purposes as “unallotted tribal lands.” Rept. of the Comm, of Ind. Aff., 1905, JX 323, at 501.

*1126

Even with the restraints applied under the Rosebud Regulations, the opening of the reservation on August 28, 1905 triggered its own land rush. Hundreds of people made homestead entries on the Uintah lands, far more than could be provided with good lands. Much of the intended farmland was at best marginal, as barren as Brigham Young’s survey team had found it in 1860.

The new settlers were almost immediately in trouble. By 1912 enough of them were so poverty stricken they went to Senator Reed Smoot asking for an act of Congress to place a moratorium on land payment.

O’Neil, The Reluctant Suzerainty: “The Uintah and Ouray Reservation,” 39

Utah Historical Quarterly

129, 140 (Spring 1971), JX 478. A number of Utes felt wholly alienated by the situation. Over 400 Utes, mainly White Rivers led by Red Cap, left the Uintah Reservation in 1906 on an exodus to the Sioux Reservations of the Dakotas, hoping to enter into an alliance with the Indians there. No such alliance came to be. “After two years of dislocation, and poverty, the wandering Utes returned to Utah no better off than when they left. The only reason they refrained from fighting was the lack of any hope of success.”

Id.,

JX 478, at 141 (footnote omitted). The “Absentee Utes” returned to the Uintah Reservation in 1908. See O’Neil, “An Anguished Odyssey: The Flight of the Utes, 1906-08,” 36

Utah Historical Quarterly

315 (Fall 1968), JX 472; Rept. of the Comm, of Ind. Aff., 1906, JX 334 at 78-79;

id.,

1907, JX 337, at 121-127;

id.,

1908, JX 342 at 120-123.

In his annual report for 1905, the Commissioner of Indian Affairs observed:

The future of these Indians depends upon a successful irrigation scheme, for without water their lands are valueless, and starvation or extermination will be their fate. The circumstances are such that delay or hesitation will be fatal because all rights to waters in Utah are based on the priority of use. It is believed that an appropriation of not less than $500,000 for irrigation for the Utes should be asked for at the next session of Congress. . . .

JX 328, at 1893.

Irrigation and water rights protection was a matter of constant concern to the Uintah and Ouray Agency.

164

The Commissioner’s recommendation was realized in 1906 through the creation of the Uintah Irrigation Project. See Act of June 21, 1906, ch. 3504, 34 Stat. 325 , 375-376, LD 127.

165

*1127

Under one of the Presidential Proclamations issued under the 1905 Act, approximately 56,000 acres in the Strawberry Valley had been reserved for use in Indian irrigation projects.

166

However, the land was already under study by the U. S. Reclamation Service for a major reservoir project, a project the plans for which were approved by the Secretary of the Interior in 1905. The Reclamation Service offered to purchase the reserved Ute lands at $1.25 per acre. The offer was refused. Ann. Rept. of the U. S. Reclamation Service, 1909 — 10, at 268-269. In 1910, Congress appropriated the lands by statute:

[T]he Secretary of the Interior is hereby authorized to pay from the reclamation fund for the benefit of the Uintah Indians the sum of one dollar and twenty-five cents per acre for the lands in the former Uintah Indian Reservation, in the State of Utah, which were set apart by the President for reservoir and other purposes under the provisions of the Act approved March third, nineteen hundred and five, . ..

All right, title and interest of the Indians in the said lands are hereby extinguished, and the title management and control thereof shall pass to the owners of the lands irrigated from said project

whenever the management and operation of the irrigation works shall so pass under the terms of the Reclamation Act.

Act of Apr. 4, 1910, ch. 140, 36 Stat. 269 , 285, III Kapp. 429, 445, LD 139 (emphasis added). See also S.Rep.No.214, 61st Cong., 2d Sess., LD 138 (1910). By 1910, the statutory framework governing the opening of the Uintah Reservation had been established. What was the legal impact of these statutes upon the territorial boundaries of the Uintah Reservation?

As discussed above, nothing in the operative language of the Act of March 3, 1905, 33 Stat. 1048 , 1069, LD 105, expressly terminated the reservation status of the unallotted Uintah lands not withdrawn for forest reserve or reclamation purposes.

167

The applicable Presidential Proclamations track the language of the 1905 Act. No agreement for the cession of the unallotted lands was ever concluded, and the relevant statutes include no cession language. Cf.

Rosebud Sioux Tribe v. Kneip, supra.

To find the disestablishment of the Uintah Indian Reservation that the defendants assert, the record herein must satisfy the requirement that “[a] congressional determination to terminate [an Indian reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history,”

Rosebud, supra,

430 U.S. at 586 , 97 S.Ct. at 1362 ,

quoting Mattz, supra,

412 U.S. at 505 , 93 S.Ct. at 2258 . Such intent was not expressed on the face of the 1905 Act; this Court will now look to the legislative history and circumstances surrounding the opening of the Uintah Reservation in search of congressional intent.

The legislative history of the Act of Mar. 3, 1905, 33 Stat. 1048 , commences with the introduction of the Indian Appropriations bill for 1905-1906, H.R.17474, in the House. See H.Rep.No.3472, 58th Cong., 3d Sess. (1905). Language had been included in the bill to change the existing law on the opening of the Uintah Reservation:

That the time for opening the unallotted lands to public entry on the Uintah Reservation in Utah, as provided by the acts of May 27, 1902 and March 3, 1903, and April 21, 1904, be, and the same

is hereby, extended to October 1, 1905:

Provided, That so much of said land as will be under the provisions of said acts

restored to the public domain shall be open to settlement and entry by procla

*1128

mation of the President of the United States,

which proclamation shall prescribe the manner in which these lands may be settled upon, occupied and entered by persons intending to make entry thereon;

39 Cong.Rec. 1180 (Jan. 21, 1905), LD 103 (emphasis added). Amendments were offered on the floor of the House to modify the proposed language. One offered by Representative Sherman and passed by the House added to the date extension the following language: “unless the President shall determine that the same may be opened at an earlier date.”

Id.

Representative Howell of Utah offered substitute language which read in part as follows:

That the time for opening the unallotted lands to public entry on the Uintah Reservation in Utah having been fixed as the 10th day of March, 1905, it is hereby provided that so much of said lands as will be under the provisions of said acts

restored to the public domain shall be open to settlement and entry by proclamation of the President of the United States,

which proclamation shall prescribe the manner in which these lands may be settled upon, occupied and entered by persons intending to make entry thereon; ... and further provided,

That for one year immediately following the restoration of said lands to the public domain said lands shall be subject to entry only under the homestead, townsite and mineral laws of the United States.

39 Cong.Rec. 1180 (Jan. 21, 1905), LD 103,

supra

(emphasis added). While Rep. Howell objected to any further extension of time because it would involve “the loss of practically one year to the settlers and home makers,” he advocated the change in the manner of disposing of the lands restored to the public domain:

In this connection there is another matter of great importance and one which should receive the earnest attention of Congress. In the pending bill these lands, when restored to the public domain, are subject to entry under the general land laws of the United States, coupled with such rules and regulations as the President may prescribe. In my humble judgment there should be some provision such as is embodied in my amendment, limiting the lands in the reservation to entry under the homestead, townsite and mining laws alone for one year from the date of opening.

With the full development of the resources of this portion of the State of Utah will come also a capacity for supporting a numerous and thrifty population. Congress should see to it that until such time as those lands easy of access, reclamation and irrigation are settled by actual home makers the provisions of the homestead law alone shall prevail. . . .

39 Cong.Rec. 1182 (Jan. 21, 1905), LD 103 (remarks of Rep. Howell). Rep. Sherman opposed the Howell substitute, defending the need for an extension for the date of opening.

168

The bill was amended to read “September 1” instead of “October 1,” and the substitute was rejected. 39 Cong.Rec. 1185, LD 103,

supra.

Rep. Howell then reasserted the last clause of the substitute as a separate amendment:

“And further provided, That for one year immediately following the restoration of said lands to the public domain, said and shall be subject to entry only under the homestead, townsite and mining laws of the United States.”

Mr. SHERMAN. We have already provided in this amendment that they shall be opened under the regulations prescribed by the President, under a proclamation in which he can cover every

*1129

thing.

169

I think we ought not to adopt that amendment.

Mr. HOWELL of Utah. It seems to me that the amendment is of great importance for the reason that it limits the choicest lands on that reservation to entry aiid location by actual home seekers and home builders, and restricts those who might desire to acquire title to land there under any other of the land laws of the United States at least for one year after the opening of the reservation....

39 Cong.Rec. 1186 (Jan. 21, 1905), LD 103

supra.

The amendment was rejected.

Two weeks later, Senator Smoot of Utah introduced two bills, S. 6867 and S. 6868. S. 6867 provided:

That the time for opening to public entry the unallotted lands on the Uintah Reservation in Utah having been fixed by law as the tenth day of March, nineteen hundred and five, it is hereby provided that the manner of opening such lands for settlement and entry, and for disposing of the same shall be as follows: That

the said unallotted lands,

excepting such tracts as may have been set aside as national forest reserve,

shall be disposed of under the general provisions of the homestead and townsite laws of the United States;

and shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof; . ..

S. 6867, 58th Cong., 3d Sess., LD 97 at 1-2 (emphasis added). S. 6868 provided for the withdrawal of specifically described timber lands as an addition to the Uintah forest reserve. S. 6868, 58th Cong., 3d Sess., LD 98.

In hearings held a few days later by a subcommittee of the Senate Committee on Indian Affairs, the inclusion of S. 6867 in the Indian Appropriations bill for the next year was discussed by Chairman Stewart, Senators Kearns and Smoot of Utah, and Senator Teller of Colorado:

The CHAIRMAN. Suppose we do not put anything in with regard to extending the time there and leave that for the conference; strike it all out.

Senator SMOOT. Senator Kearns had the matter under consideration, and if he is satisfied with the bill I would like to have it go in.

Senator KEARNS. I would prefer not to load up the bill.

I would like to cut out all the House amendments.

If Mr. Newell recommends the withdrawal of the reservoir site I would consent to that, but I would like to see the reservation opened at the date set in the last act — in March. If that is impossible, then leave it to the President.

Senator SMOOT. That is what my bill says, to leave it to the President,

with this added, that there shall be no lands settled there except under the homestead and townsite entry.

Senator TELLER.

I want that in, myself.

Senator SMOOT. That is all there is to this bill.

Senator TELLER. I have a memorandum to put that in.

The CHAIRMAN. Then we can not settle it this morning. I think we will have to strike that out.

*1130

Senator TELLER. I think Senator Smoot and Senator Kearns and Mr. Pinchot can get up something.

Senator SMOOT. The only difference between Senator Kearns and me on this whole proposition is this, that this bill that I ask be inserted in the appropriation bill says it shall be left to the President to open it — that he shall issue a proclamation:

but it adds further, Mr. Chairman, that no land shall be located there except under the homestead and town-site laws.

* * * * * *

Senator TELLER.

We want that provision in about the homestead or town-site entries. I am not going to agree to any entry of that land except under the homestead and town-site entries.

Senator SMOOT.

That is exactly what my bill is,

and leaving the President to issue the proclamation.

Senator TELLER.

I am not going to consent to any speculators getting public land if I can held it.

Senator KEARNS. Will the committee go into the matter of reserving that forest reservation? Could we not safely leave that with the Department?

Senator TELLER. I do not believe we ought to go into that, but, as this is an Indian reservation, we should authorize the President to reserve what he thinks is proper, or, more properly speaking, the Secretary of the Interior.

“Indian Appropriation Bill, 1906,” Hearings, Subcomm. of the Sen. Comm, of Ind. Aff., 58th Cong., 3d Sess., LD 100, at 29-30 (1905) (emphasis added).

Following the hearings, the Secretary of the Interior reported to the Senate on the progress being made in preparing to open the Uintah Reservation, see S.Doc.No.159, 58th Cong., 3d Sess., LD 101 (1905), and the Committee on Indian Affairs reported out the Indian Appropriations bill. S.Rep.No. 4240, 58th Cong., 3d Sess., LD 102 (1905).

The Committee had agreed to Commissioner Leupp’s recommendation that the time for opening be extended to September 1, 1905, unless the President determines an earlier date to be appropriate.

Id.

at 14. In a letter reprinted by the Committee the Commissioner advised that

As the manner of opening Indian reservations to entry and settlement after the lands are restored to the public domain is a matter that comes within the jurisdiction of the General Land Office, it is suggested that the bill be referred to that office.

Id.,

LD 102, at 14. The Commissioner’s reading of the bill apparently saw the Senate provisions as supplementing the restoration to be accomplished under the 1902 Act, as did the Howell substitute that failed in the House, rather than as amending or repealing its opening provisions. The Commissioner of the General Land Office took a different view.

Attention is called to the fact that under act of May 27, 1902 ( 32 Stat. 263 ), these lands were to be simply “restored to the public domain,” and could, consequently, under that statute be appropriated under any of the public-land laws, while the pending bill provides that they “shall be disposed of under the general provisions of the homestead and town-site laws of the United States.”

Possibly doubt may arise in determining

whether the proposed bill will repeal the act of May 27, 1902,

in so far as that act would permit entries under other than the homestead and town-site laws, and for the purpose of removing any possible doubt on this subject I would suggest that the word “only” be inserted between the words “of” and “under” . ..

Id.,

LD 102, at 15 (emphasis added).

170

Though “only” was not added by the Com

*1131

mittee to the Senate version, the subsequent legislative history of the 1905 Act tacitly acknowledges the observation by the Land Office Commissioner that the 1905 Act repealed the public domain language of the 1902 Act. References to the Uintah Reservation being restored to the public domain all but vanish from the legislative material. It was clear to Congress that the reservation was to be “opened” under the homestead and town-site laws.

The Indian Appropriations Bill, H.R. 17474, was without debate amended on the floor to substitute the modified versions of S. 6867 and S. 6868. 39 Cong.Rec. 3522 (Feb. 27, 1905), LD 103,

supra.

171

The House objected to the multiple amendments made by the Senate and the bill was referred to a conference committee. 39 Cong.Rec. 3751, LD 103,

supra.

Senators Stewart, McComber and DuBois and Representatives Sherman, Curtis and Stephens were appointed to the committee, 39 Cong. Rec., LD 103, at 3751, 3792. The conference report struck the House version, substituting the Senate language, 39 Cong.Rec., LD 103, at 3919, and this version was enacted as the Act of March 3, 1905, Stat. 1048, 1069, LD 105. The legislative history of the 1905 Act parallels that of the 1892 Act construed in

Mattz v. Arnett,

412 U.S. 481 , 93 S.Ct. 2245 , 37 L.Ed.2d 92 (1973). As in

Mattz ,

a House effort that could have disestablished the Uintah Reservation failed to accomplish its objective, for the Senate bill’s language was substituted for that of the House. The Senate version, like the Act in

Mattz ,

allowed entry of the opened reservation only under the homestead and other specified laws. Compare

Mattz v. Arnett, supra,

412 U.S. at 501-504 , 93 S.Ct. at 2256-2257 . Here, as the Supreme Court pointed out in

Mattz ,

“Congress was fully aware of the means by which termination could be effected.”

Id.,

at 504 , 93 S.Ct. at 2257. But clear termination language was

not

employed in the 1905 Act. Indeed, it was purposefully rejected.

Senator Henry M. Teller, a primary advocate of the Senate language, had long opposed the allotment of Indian lands and wholesale opening of Indian reservations to white settlement under the allotment bills, charging that such legislation was in the interests of non-Indian land speculators. See 11 Cong.Rec. 783 (Jan. 20, 1881) (remarks of Sen. Teller)

id.

at 780-781, 934-935; D. Otis, The Dawes Act and the Allotment of Indian Lands 12, 18, 44, 46, 50 (Prucha ed. 1973).

172

During the Senate debate on the Indian Appropriations bill in 1905, Senator Teller vehemently attacked the allotment program:

Mr. TELLER. * * * I have the satisfaction, Mr. President, when I look over the present condition of Indian affairs in this country to remember that I have never voted for the allotment of an acre of Indian land; and I think upon all occasions, when reasonable opportunity presented itself, and sometimes when it was not reasonable, I have protested against such action....

39 Cong.Rec. 3515 (Feb. 27, 1905), LD 103. The 1905 Act reflects more the conservative approach expressed by Senator Teller, who insisted on the homestead and townsite language in committee, than the wholesale opening advocated earlier by, for example, Rep. Sutherland of Utah. Cf. Sen.Doc.No. 212, 57th Cong., 1st Sess., LD 68, at 111-120 (1902) (remarks of Rep. Sutherland).

173

*1132

Nothing in the legislative history of the 1905 Act approaches a clear expression of congressional intent to disestablish the Uintah Reservation, particularly under the Senate language. Cf.

Rosebud Sioux Tribe v. Kneip, supra.

The “public domain” language of the 1902 Act and the 1905 House proposals was deliberately rejected in favor of the more limited homestead and town site language.

The distinction between the 1905 Uintah legislation and contemporaneous legislation that expressly disestablished other reservations seems to be discerned in executive documents reporting on the opening of those reservations. For example, the Secretary of the Interior comments,

The opening to settlement and entry under the homestead law of the Rosebud Indian

lands

in South Dakota and of the Devil’s Lake

lands

in North Dakota, ..., respectively, was successfully accomplished, and the entry of the lands in said reservations is still in progress. Equally successful was the opening to settlement and entry under the homestead laws on August 28, 1905, of the unreserved and unallotted land of the Uintah Indian

Reservation

in Utah under the act of March 3, 1905 (33 Stat.L., 1069).

Report of the Secretary of the Interior, 1905, JX 328, at 1495 (emphasis added). Both the Rosebud and Devil’s Lake “lands” were governed by express language of cession, while the opening at Uintah was of a “reservation.” Similarly a report by the Assistant U. S. Attorney General for Public Lands draws a distinction between the opening of Rosebud and Devil’s Lake and the opening of Uintah: while opened lands at Rosebud and Devil’s Lake are said to be “restored to the public domain,” Uintah lands are said “to be disposed of under the provisions of the Act of March 3,1905 . . .,” and to be “opened to homestead entry.” See

id.,

JX 328, at 1501-1502.

Simple logic commands the conclusion that an opening of a reservation to entry under two specified statutes is, by definition, not a restoration to the status of “public lands” or public domain: “The words ‘public lands’ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.”

Newhall v. Sanger,

92 U.S. 761, 763 , 23 L.Ed. 769 (1875).

The opening of the Uncompahgre Reservation to entry under all the land laws of the United States was tantamount to a restoration to public domain status; opening of the unallotted lands of Uintah Reservation under only two of those laws was not.

173A

Reservation lands remain such until expressly withdrawn from that status by Congress.

United States v. Celestine,

215 U.S. 278, 285 , 30 S.Ct. 93, 94 , 54 L.Ed. 195 (1909);

Rosebud Sioux Tribe v. Kneip, supra.

The defendant State and counties assert that congressional intent to disestablish the unallotted Uintah lands is proven through reflection in subsequent references in legis

*1133

lative materials to the “former” Uintah Reservation, the “late” Uintah Reservation, etc. The briefs offer an impressive catalog of citations to past-tense references. See State of Utah Post-Trial Brief at 42-43; Defendant Counties’ Post-Trial Brief at 100 — 101. A careful analysis of those items discloses a common source, a source not necessarily representative of past or present congressional intent. Senator (formerly Representative) George Sutherland introduced three bills between 1906 and 1910 dealing within the Uintah Reservation lands. Each of the bills includes a reference to the “former” Uintah Indian Reservation in the title. Congressional committee reports and references to the bills on the floor of either house track the language of the bill titles in making shorthand descriptions of the bills or their purposes. S. 3935, 59th Cong., 1st Sess., a bill “to authorize Indians on the former Uintah Reservation to cut and sell cedar and pine timber for posts and fuel,” was reported in S.Rep. No.823, 59th Cong., 1st Sess., LD 122 (1906). The report itself includes references to the Uintah Reservation in the present tense (“Very little of this class of timber is to be found upon other parts of the reservation available to the settlers,” “land of the Uintah Indian Reservation,” “Indians of the Uintah Indian Reservation”). S. 6375, 59th Cong., 1st Sess., a bill “granting lands within the former Uintah Indian Reservation” to the Episcopal Church was reported from committee in S.Rep.No.4263, 59th Cong., 1st Sess., LD 126 (1906). References in the committee report to the “former” reservation are descriptions identifying the bill by tracking its operative language. The same is true of the House Committee report, see H.Rep.No.5010, 59th Cong., 1st Sess., LD 128 (1906) and of discussion of the bill on the Senate and House floor. See 40 Cong. Rec. 8306 (remarks of Sen. Sutherland), 9386 (remarks of Rep. Howell). The bill passed both houses without debate and was enacted in the form proposed by Sen. Sutherland. Act of June 29, 1906, ch. 3599, 34 Stat. 611 , LD 129. S. 5926, 61st Cong., 2d Sess., a bill “to make available certain lands on the former Uintah Indian Reservation under the reclamation act,” was reported from committee in S.Rep.No.219, 61st Cong., 2d Sess., LD 138 (1910). The past-tense references in the report merely recite the bill’s language. They do not reflect an informal congressional evaluation of the effect of the 1905 Act. The language of the bill was carried on to the final version of the bill, which became law. Act of Apr. 4, 1910, ch. 140, 36 Stat. 269 , 285, LD 139.

On the floor of the Senate on March 8, 1906, Senator Sutherland offered an amendment to the Indian appropriations bill for that year which dealt with canals and ditches on grazing lands upon the “former” Uintah Reservation. 40 Cong.Rec. 3500 (Mar. 8, 1905), LD 123. The bulk of the past-tense legislative references, in fact, arise from the activities of Senator Sutherland. He and his relatively anti-Indian views had not yet joined the Senate in the session that enacted the 1905 language. What is most revealing, however, is the fact that following his departure from the Senate in 1917, references to the “former” Uintah Reservation fade from the legislative materials. Commencing with the Indian Appropriations Act of 1921, Act of Mar. 3, 1921, ch. 119, 41 Stat. 1225 , IV Kapp. 282, 312, LD 157, reference is made to the “Uintah and Ouray Reservation,” and made consistently in the present tense. See e.

g.,

Act of Mar. 4, 1929, ch. 705, 45 Stat. 1562 , 1584, V Kapp. 92, 111, LD 164 (reference to “the State Experimental Farm, . . . within the Uintah and Ouray Indian Reservation.”); Act of Apr. 22, 1932, ch. 125, 47 Stat. 91 , 111, V Kapp. 257, 274, LD 170 (same); H.Rep.No.2399, 74th Cong., 2d Sess., LD 174 (1936) (“These lands join the Uintah and Ouray Reservation ... ”); Act of Aug. 9, 1937, ch. 570, 50 Stat. 564 , 573, LD 177 (“Indians of the Uintah and Ouray Reservation”); H.Rep.No.370, 77th Cong., 1st Sess., LD 179, at 3 (1941) (“The Uintah and Ouray Indian Reservation . . .”); S.Rep.No.243, 77th Cong., 1st Sess., LD 180 (1941) (same); H.Rep.No.143, 78th Cong., 1st Sess., LD 181 (1943) (“add certain public lands to the Uintah and Ouray Reservation”); S.Rep.No. 1188, 78th Cong., 2d Sess., LD 182 (1944)

*1134

(same); S.Rep.No.749, 80th Cong., 1st Sess., LD 184 (1947) (“the exterior boundary of the Uintah and Ouray Reservation”); 94 Cong.Rec. 84, 1943, 1960 (1948), LD 185 (same); H.Rep.No.1372, 80th Cong., 2d Sess., LD 186 (1948) (same); Act of Mar. 11, 1948, ch. 108, 62 Stat. 72 , LD 187 (same); Act of Mar. 16, 1950, ch. 59, 64 Stat. 19 , LD 188 (“Uintah and Ouray Reservation”); S.Rep.No.602, 82nd Cong., 1st Sess., LD 189 (1951) (same); Act of Aug. 21, 1951, P.L. 82-120, 65 Stat. 193 , LD 190 (same); H.Rep. No.2503, 82d Cong., 2d Sess., LD 192 (1952) (same); S.Rep.No.1632, 83d Cong., 2d Sess., LD 193 (1954) (same); 100

Cong.Rec.

9720-9725, 13124 (1954), LD 194 (same); Act of Aug. 27,1954, P.L. 83-671, 68 Stat. 868 , LD 197 (same); S.Rep.No.841, 84th Cong., 1st Sess., LD 195 (1955) (“exterior boundaries of the Uintah and Ouray Reservation”); H.Rep.No.1479, 84th Cong., 1st Sess., LD 196 (1955) (same); Act of Sept. 18, 1970, P.L. 91-403, 84 Stat. 843 , LD 209 (“Uintah and Ouray Reservation”).

The legislative documents also disclose a few references to the Uintah Indian Reservation in the present tense. See e.

g.,

H.Doc.No.892, 62d Cong., 2d Sess., LD 146 (1912) (“Conditions on Uintah Indian Reservation, Utah”);

174

53

Cong.Rec.

7863 (May 12, 1916), LD 152 (“the opening to settlement of the Uintah Indian Reservation”);

175

Act of Aug. 1, 1914, ch. 222, 38 Stat. 582 , 604, LD 148 (“of the bridge at Myton, on the Uintah Indian Reservation, Utah”); 53 Cong.Rec. 7863 (May 12, 1916), LD 152 (remarks of Rep. Howell); S.Doc. No.414, 66th Cong., 3d Sess., LD 156 (1921) (“leasing of irrigable Indian land on the Uintah Reservation, Utah”); Act of Mar. 4, 1931, ch. 522, 46 Stat. 1552 , 1567, LD 168 (“Irrigation system, Uintah Reservation, Utah”); Act of Feb. 2,1932, ch. 12, 47 Stat. 15 , 22, LD 169 (same); Act of June 19,1934, ch. 648, 48 Stat. 1021 , 1033, LD 173 (same); 74 Cong.Rec. 3406 (Jan. 28, 1931) LD 166 (“the opening of the Uintah Indian Reservation”).

The proposals of Senator Sutherland were not the only source of past-tense references; three bills offered by Senator Smoot of Utah included past-tense descriptions as did the discussion surrounding them.

176

Debates on the bills prove palpably ambiguous; comments by Senator Smoot, Representative Howell, and others include present as well as past-tense references.

177

See 40 Cong.Rec. 1064, LD 116, (remarks of Sen. Smoot);

id.,

at 1332 (remarks of Rep. Howell); S.Rep.No.139, 59th Cong., 1st Sess., LD 117 (1906); 40 Cong. Rec. 3553 (1906), LD 131 (remarks of Rep. Howell); S.Rep.No.893, 62d Cong., 2d Sess., LD 142 (1912); H.Rep.No.443, 62d Cong., 2d Sess., LD 143 (1912); 48

Cong.Rec.

9101-9102, 9107, (July 15, 1912) LD 144 (remarks of Rep. Howell, e.

g.,

“The Uintah Indian Reservation is an arid region....”) Other references in the legislative documents include both present and former designations. See e.

g.,

Act of Apr. 30, 1908, ch. 153, 35

*1135

Stat. 70, 95, LD 135; Act of Mar. 3, 1911, ch. 210, 36 Stat. 1058 , 1071, LD 141 (both “ceded” and current references).

This history of past-tense and present-tense references highlights the importance of the oft-repeated warning by the Supreme Court that “[TJhe views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”

United States v. Philadelphia National Bank,

374 U.S. 321, 348-349 , 83 S.Ct. 1715, 1733 , 10 L.Ed.2d 915 (1963),

quoting United States v. Price,

361 U.S. 304, 313 , 80 S.Ct. 326, 331 , 4 L.Ed.2d 334 (1960); see

United States v. Southwestern Cable Co.,

392 U.S. 157, 170 , 88 S.Ct. 1994, 2001 , 20 L.Ed.2d 1001 (1968);

Rainwater v. United States,

356 U.S. 590, 593 , 78 S.Ct. 946, 949 , 2 L.Ed.2d 996 (1958);

United States v. United Mine Workers,

330 U.S. 258, 282 , 67 S.Ct. 677, 690 , 91 L.Ed. 884 (1947); cf.

United States v. E. I. duPont de Nemours & Co.,

353 U.S. 586, 590 , 77 S.Ct. 872, 875 , 1 L.Ed.2d 1057 (1957). In

Mattz v. Arnett, supra,

the Supreme Court found similar past-tense references “to have been a natural, convenient, and shorthand way of identifying the land subject to allotment” under the applicable legislation.

Id.,

412 U.S. 498 , 93 S.Ct. at 2254. In

Seymour v. Superintendent, supra,

the Court regarded “former” references in some legislation against the backdrop of a record of more recent, present-tense references as evidencing “some congressional confusion.”

Id.,

368 U.S. at 356 -357 & nn. 12, 13, 82 S.Ct. at 427 . In

City of New Town v. United States,

454 F.2d 121 (8th Cir. 1972), the United States Court of Appeals for the Eighth Circuit found “inconsistent and confusing” present and past-tense references to the Fort Bert-hold

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