Joseph A. Russ, James Whipple, and the Covelo Indian Community of the Round Valley Indian Reservation, in Intervention and v. Richard E. Wilkins, And

HOFFMAN, District Judge,

dissenting:

The persuasive effect of an excellent majority opinion makes it difficult to dissent. The ultimate question is, of course, the effect of the Act of 1890, 26 Stat. 658 , upon the admitted establishment of the Round Valley Indian Reservation by the Act of 1873, 17 Stat. 633 . If the Act of 1890 disestablished the rights of the tribe to the previously established boundary lines created by the Act of 1873 (except for approximately 43,860 acres of both valley and mountain lands which were admittedly still reserved as the Round Valley Indian Reservation by the Act of 1890), then the majority is correct in its analysis of the problem. If however, the effect of the Act of 1890 was merely to “open up” the 63,680 acres for non-Indian settlement, or if the Act of 1890 is ambiguous as to its effect, then the district court must be affirmed.

I

I start with the premise that, as a general rule, ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians. Bryan v. Itasca County, 426 U.S. 373, 392 , 96 S.Ct. 2102, 2112 , 48 L.Ed.2d 710 (1976); Washington v. Yakima Indian Nation, 439 U.S. 463, 484 , 99 S.Ct. 740, 753 , 58 L.Ed.2d 740 (1979); Mattz v. Arnett, 412 U.S. 481, 504-505 , 93 S.Ct. 2245, 2257-58 , 37 L.Ed.2d 92 (1973), in which case the Supreme Court said:

“Congress was fully aware of the means by which termination could be effected. But clear termination language was not employed in the . . . Act. This being so, we are not inclined to infer an intent to terminate . . . . A congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.”

II

The question as to whether the Act of 1890 so divorced the 63,680 acres from “Indian Country” as defined by 18 U.S.C. § 1151 , and thus terminated that area as a part of the Indian reservation under the jurisdiction of the United States Government as created by the Act of 1873, is not so *927 readily determined as the majority opinion suggests. There are indeed, implications which suggest a termination, but in my judgment too much ambiguity exists as to what Congress intended at the time of the passage of the Act of 1890. As stated in United States v. Celestine, 215 U.S. 278, 285 , 30 S.Ct. 93, 95 , 54 L.Ed. 195 (1909), “when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.” And a congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. Mattz, supra 412 U.S. at 505 , 93 S.Ct. at 2258 ; 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). In Mattz, the Supreme Court quoted with apparent approval the language from United States ex rel. Condon v. Erickson, 478 F.2d 684, 689 (8th Cir. 1973), by noting “a holding favoring federal jurisdiction is required unless Congress has expressly or by clear implication diminished the boundaries of the reservation” opened to settlement. In Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586 , 97 S.Ct. 1361, 1362 , 51 L.Ed.2d 660 (1977), decided after the district court opinion in the instant case, the requirement was restated as “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.”

My analysis of the operative language in the 1890 Act does not persuade me that, at least on its face, there was any congressional intent to disestablish the Round Valley Indian Reservation. In fact, but for the title or caption which states “An act to provide for the reduction of the Round Valley Indian Reservation, in the State of California, and for other purposes” 1 (emphasis supplied), I find little or no indication of such an intent to terminate the “Indian Country” as to the 63,680 later surveyed, appraised and put up for public sale. Indeed, Section 3, relating to the 63,680 acres, refers to the “reservation as at present existing”, and there are no such words appearing in the Act of 1890 which point to “disestablishment”, “discontinuance”, “abandonment”, “relinquishment”, “termination”, “cession”, “sell”, “vacate”, “surrender”, “abolish”, and words of like import, of any portion of the Round Valley Indian Reservation as created by the Act of 1873.

Judge Renfrew, in his opinion, reported at 410 F.Supp. 579 (1976), has cogently pointed out his reasons why the use of the word “reduction” did not operate to terminate the “Indian Country” in the area where the deer was killed by Russ and Whipple, the two enrolled members of the Indian tribe. He correctly suggests the analogy to United States v. Erickson, 478 F.2d 684 (8th Cir. 1973), where the operative language of an Act of 1908, 35 Stat. 460 , made reference to “reservations thus diminished,” and the Eighth Circuit found that “diminished” merely referred to the area allotted to the Indians.

The Act of 1873 had the effect of reducing the size of the previously existing Round Valley Indian Reservation under Section 1 of the Act where Congress provided that the southern area be “restored to the public lands of the United States”, and thereafter sold. Section 2 of the 1873 Act creates a new reservation by metes and bounds description. Section 3 provides that the President shall cause to be withdrawn from sale or entry under the homestead and pre-exemption laws, the entire area specified by metes and bounds under Section 2, and likewise states that all settlers now residing upon the tract (consisting of ap *928 proximately 102,000 to 106,000 acres) be required “to remove therefrom” as soon as they shall be paid the appraised value of any improvements then existing. Thus, the Act of 1873, in clear and unmistakable language, (1) restored a portion of an existing Indian Reservation to the public lands, (2) created by metes and bounds an Indian Reservation which was encompassed within the former Reservation, and (3) caused an affirmative act by the President to withdraw from sale or entry the area created under (2).

Matters affecting jurisdiction were relatively unimportant in the period from 1873 to 1890, and for some years thereafter. In 1953, Congress enacted 18 U.S.C. § 1162 and, under (a), California was given jurisdiction over offenses committed by or against Indians in all areas of Indian country within that state, but under (b) there is a specific disclaimer of jurisdiction with regard to state regulation of Indian hunting, trapping or fishing rights. Since the confiscation of the deer grew out of the hunting rights reserved to Indians, the jurisdiction issue is of prime importance in this case.

Three years prior to the enactment of the controversial Act, i. e., the Act of 1890, Congress enacted the General Allotment Act of 1887, 24 Stat. 388 , 25 U.S.C. § 331 , et seq. The majority places major emphasis on the Dawes Report of 1885 which does recommend that the Round Valley Indian Reservation boundaries be altered. My analysis of the Dawes Report is that it led to the passage of the General Allotment Act of 1887, 2 and not to the Act of 1890. Congress, confronted with its action in 1887, was not persuaded to disestablish a portion of the Round Valley Reservation in order to make it available for non-Indian settlement. As the Supreme Court said in Mattz, supra, 412 U.S. at 496 , 93 S.Ct. at 2253 :

“That Act [the General Allotment Act of 1887] permitted the President to make allotments of reservation lands to resident Indians and, with tribal consent, to sell surplus lands. Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallot-ted lands were made available to non-Indians with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways.”

Thus, Congress could open a portion of the Reservation to non-Indian settlement without altering its reservation status and allot the remainder to the Indians. Since, in 1885, there were only an estimated 500 to 800 tribal Indians in the Reservation, it is a fair assumption that Congress concluded that all lands would soon be allotted, the trust would expire, and the reservation could be abolished. Mattz, 412 U.S. at 496 , 93 S.Ct. at 2253 . It was in this setting that the Act of 1890 was enacted. It is my view that the Dawes Report of 1885 led to the passage of the General Allotment Act of 1887, but furnishes no basis for concluding that the disestablished recommendations in the report prompted the passage of the Act of 1890. In this respect, I have a substantial difference of opinion from that of the majority.

The United States was not to purchase any portion of the Reservation under the 1890 Act. In Section 3, the United States was to act solely as a trustee for the Indians in selling a portion of the Reservation to non-Indians. Stated otherwise, the land sold would pass from the Indians through private purchases, but it was not first made a part of the public domain. Under the *929 1873 Act, it is noted that certain lands were expressly “restored to the public lands of the United States”, with the proceeds of any sales “hereby restored” being used to pay for the improvements or claims of set-tlors within the “new Reservation” and for the improvement of Indians on the restored lands. The funds derived from sales under the 1873 Act were not credited to the Indians as a whole, as contrasted to the 1890 Act where the proceeds were “placed in the Treasury of the United States to the credit of said Indians”. While it is true that Rosebud Sioux Tribe v. Kneip, 430 U.S. at 588 , 97 S.Ct. at 1364 , tends to minimize the effect of any changed method of payment, the Supreme Court merely stated that such a factor was “not conclusive with respect to congressional intent”. Nevertheless, it still remains a factor for consideration. Indeed, as far as Rosebud is concerned, I agree with its analysis as stated by the Eighth Circuit (the same court which previously decided Rosebud) in United States v. Long Elk, 565 F.2d 1032, 1036-1039 (8th Cir. 1977), which emphasized that Rosebud was decided on two crucial factors: (1) that the Act contained cession language “precisely suited” to disestablishment, and (2) the legislation originated in an agreement between the tribe and the Government unequivocally calling for the cession of reservation lands. Neither factor in Rosebud, I submit, is present in this case.

Finally, California urges that Section 2 of the Act of 1890 uses the words “the reservation as hereby established” and “the reservation as herein established”, which would tend to indicate an intent to establish a new reservation for the Indians. But these words must be read in conjunction with prior words in the same section which refer to “within the lands selected and retained for the Indians” which words assuredly do not constitute clear disestablishment language. Aside from the words used by Congress, it is important to realize the population situation in the Round Valley Indian Reservation prior to 1890. While in many Indian reservations throughout the country there existed “familiar forces [of a] nearby and growing population of white farmers, merchants, and railroad men . urging authorities in Washington to open the reservation to general settlement”, 3 such was not the situation in Round Valley as reflected by the fact that only two buyers appeared when the 63,642 acres of Round Valley were offered for sale on April 19, 1894, thus leaving 98% of the opened land unsold because of lack of interest. Additionally, trespassers had occupied a large portion of the reservation lands created by the 1873 Act and had not moved therefrom despite the mandate of the Act of 1873. Congress knew all of these facts prior to the passage of the 1890 Act as there were references to same during the House floor debate. Congress responded, in an attempt to ameliorate the existing conditions which included bloodshed and inter-racial violence, by designating specific and discrete zones of Indian and non-Indian occupancy on the reservation as created in 1873. The “establishment” which Congress had in mind was a rearrangement to accommodate the three conflicting interests which were apparent at the time.

I respectfully submit that the face of the Act of 1890 does not demonstrate any expression to terminate.

Ill

As commanded by Rosebud and other authorities, it is required that we look to the “legislative history”. Other than the Dawes Report heretofore mentioned, bills were introduced in 1886 and 1888 during the administration of President Cleveland but which failed of passage. The 1886 bill provided “for allotments of lands in severalty to Indians residing upon the Round Valley Indian Reservation . . . and for granting patents therefor, and for other purposes.” In all probability the 1886 bill did not pass because of the pendency of the *930 General Allotment Act which was enacted on February 8, 1887. In 1888, a new title was needed because the reference to “allotments” in the 1886 bill was no longer needed due to the enactment of the General Allotment Act. The 1888 bill picked up Senator Dawes’ non-specific reference to “reduction” as contained in his 1885 report. After the General Allotment Act, the policy was directed at extinguishing Indian title to opened lands only if and when such lands were actually purchased by settlers. See Letter of Commissioner to Secretary of Interior, August 10, 1934, referring to policy starting about 1890 and continuing until at least 1910.

I do not find from the pre-1890 legislative history any clear intent to disestablish the reservation set forth in the 1873 Act.

IV

After 1890, Congress again addressed the Round Valley Indian Reservation matter in 1904 when a bill was presented with a title “To open to homestead settlement and entry the relinquished and undisposed of portions of the Round Valley Reservation” (emphasis supplied).

This bill, finally enacted on February 8, 1905, 33 Stat. 706 , was made necessary because only 1223 of the 63,642 acres opened by the Act of 1890 were actually sold as the 1890 Act required sales in parcels of 640 acres and payment had to be made in full. The bill reduced the size of the parcels to 160 acres and allowed the purchasers to pay in five equal annual installments. The legislative history demonstrates that at least Congressman Livernash of California clearly considered the opened lands as a part of the Round Valley Indian Reservation, 39 Cong.Rec. 5849, 58th Cong., 2nd Sess., although the Senate Report, No. 2618, 58th Cong., 2nd Sess., implies that the opened lands were no longer a part of the reservation where it states “the lands affected by this bill were originally a part of the Round Valley Indian Reservation.” Here, the title to the bill, for what it may be worth, operates to the benefit of the Indians.

The legislative history of the 1905 Act is inconsistent and confusing. In any event, it does not demonstrate any clear intent by Congress to diminish the Reservation or to suggest that the 1890 Act had already done so.

We come to the Indian Reorganization Act of 1934, 48 Stat. 984 , as amended, 25 U.S.C. § 461 , et seq. Under Section 3, the Secretary of Interior is authorized to “restore to tribal ownership the remaining surplus lands of any Indian reservation opened before June 18, 1934, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States.” Section 7 provides that the Secretary is authorized to “proclaim new Indian reservations on lands acquired pursuant to any authority conferred by [this Act], or to add such lands to existing reservations.” The legislative history of the 1934 Act (S.Rept. No. 1080, 73d Cong., 2d Sess., H.Rept. No. 2049 (Conference Report), 73d Cong., 2d Sess., the latter adopting the Senate version of Section 7) makes reference to the interplay of Sections 5 and 7. Section 7 permits the Secretary “to proclaim new Indian reservations on lands acquired” with the Senate Report adding “pursuant to section 5 of the bill”. When one examines Section 5, it states that the Secretary is authorized to “acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands . . . , within or without existing reservations, . for the purpose of providing land for Indians.” Section 3 contains no authority to “acquire” lands and it deals only with the restoration of surplus lands to tribal ownership.

In the Opinion of the Solicitor, 54 I.D. 559 (1934), the Round Valley Reservation was listed as eligible for restoration of lands under Section 3 of the Act of 1934. In 1938, the Solicitor of the Department of Interior attempted to clarify the 1934 opinion by stating that Section 3 does not mean the lands must now have the character of Indian reservation lands and need not be located within the geographical limits of an Indian reservation. 56 I.D. 330, 333 (1938). *931 On November 18, 1946, a memorandum from the Assistant Commissioner of Indian Affairs to the Secretary of the Interior was submitted. It recommended that the unsold lands be restored to tribal ownership and, at one point, stated that the unsold lands should be “added to” the Round Valley Reservation. The Secretary approved the memorandum as being an operative order; there does not appear to have been any separate restoration order entered by the Secretary.

I do not feel that the 1947 secretarial order purportedly “restoring” 7531 acres of unsold lands to the Round Valley Indian Reservation has any effect on the case. California argues that it suggests that the Act of 1890 definitely took this acreage away from the reservation. On the other hand, the memorandum indicating the purpose of the “Order of Restoration” was “to add to the said Round Valley Reservation all lands which remain vacant and undis-posed of on the open portion of the said reservation”, thus implying that its purpose was merely to restore possessory rights which had been divested by the Act of 1890.

V

Rosebud stresses the importance of a Presidential Proclamation which, in Rosebud, “is an unambiguous, contemporaneous statement by the Nation’s Chief Executive, of a perceived disestablishment of Gregory County [from the Rosebud Reservation]”. As noted by Mr. Justice Rehnquist speaking for the majority, “It reflects, we believe, the clear import of the congressional action in the 1904 Act.” Rosebud, 430 U.S. at 602-603 , 97 S.Ct. at 1371 . Likewise, in De-Couteau and United States v. Southern Pacific Transp. Co., 543 F.2d 676 , 693 (9th Cir. 1976), there are references to presidential proclamations which use the words reflecting that the Indians had “conveyed . all their title and interest in and to all the allotted lands” and “have ceded and relinquished . . .all their right and claim in and to all the lands . . . which have not been allotted, selected, set apart and reserved”. And in Long Elk , the presidential proclamation used no words of termination or disestablishment with the Eighth Circuit suggesting that this was an indication that there was no intention to terminate a portion of the reservation.

As to the Round Valley Indian Reservation, there was no presidential proclamation or any formal executive order implementing the Act of 1890. The Act itself mentioned no boundaries but merely set aside a “reasonable amount” of land for the exclusive use and allotment to Indians.

While the absence of a presidential proclamation is not per se conclusive, it is rather significant to note that in the majority of cases holding that reservation lands have not been disestablished, there was either no presidential proclamation, as in this case and Mattz , or the proclamation contained no words akin to disestablishment language and merely stated that portions of the reservation would be opened to entry and settlement, as in Seymour, Erickson, Long Elk, and others. Thus, it appears that courts have placed major emphasis on the wording of the presidential proclamations to reflect the congressional intent.

VI

It is quite true, as the majority notes, that California has probably exercised more jurisdiction over the area covered by the 1890 Act than has the federal government. The duties of the federal agent were directed to the management of parcels of land held in trust by the United States, either for individuals or for the Indians collectively. He agreed that no significance could be attached to the line which California now contends was the post-1890 exterior boundary of the reservation. The State game warden testified that he enforced California’s fish and game laws against all violators, except as enrolled members of the Co-velo Indian Community on lands held in trust by the United States. He determined the trust status of land by reference to a map furnished by the Bureau of Indian Affairs — not by any boundaries of the reservation. The line purporting to be a boundary line indicated nothing to him.

*932 It is apparent that, in the exercise of jurisdiction, no official, state or federal, historically paid any attention to any exterior boundary. Their interest was whether a particular area was in trust status.

The very nature of the 60% of the Reservation which was opened for settlers by the Act of 1890 suggests that only hunting and fishing could be a “justifiable expectation” of use by Indians and non-Indians alike. The Congressman for that area described the opened lands as “rugged and mountainous and hardly habitable for human beings”. While post-opening jurisdictional history of reservation lands opened to non-Indians is a factor usually considered, such as in Rosebud and DeCouteau where “justifiable expectations” on the part of non-Indians were upheld, this case presents no such “justifiable expectation” as there has never been a demand for the rugged and mountainous land which was opened to settlers in 1890.

At best, the exercise of jurisdiction by California has been essentially limited to occasional visits by a game warden in the surrounding hills. While it may be conceded that this exceeds the exercise of jurisdiction by federal authorities, it is extremely doubtful whether this is sufficient in law to have any bearing on this case, especially since this case involved hunting rights. Menominee Tribe v. United States, 391 U.S. 404 , 88 S.Ct. 1705 , 20 L.Ed.2d 697 (1968); Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974).

As noted, by the order of 1947, a total of 7531 acres, in random small parcels of 140 acres each, were restored to Indian use in 1947. This presents the problem of “checkerboard jurisdiction” which was denounced in Seymour, 368 U.S. at 358 , 82 S.Ct. at 428 , and Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 478 , 96 S.Ct. 1634, 1643 , 48 L.Ed.2d 96 (1976). In Long Elk, 565 F.2d at 1039 (8th Cir. 1977), the court observed that law enforcement officers would be required to consult tract books to determine the locus of a criminal act, and “such an impractical result is not to be imputed to Congress without specific language to that effect.”

I do not now believe that the surrounding circumstances are sufficient, despite the limited post-1890 exercise of jurisdiction, to establish a clear congressional intent of disestablishment.

VII

Mindful of the fact that there are statements found in letters and documents tending to show that there are persons who believed that a portion of the Round Valley Indian Reservation had been disestablished by the Act of 1890, I nevertheless submit that confusion existed at that time, and continues to exist, as to the true congressional intent. Certainly, as stated in Long Elk, 565 F.2d at 1040 , there was no “hard evidence necessary to overcome the general presumption against an intent to disestablish a reservation.” I respectfully dissent.

. The title of a statute is not a part of that statute and cannot alter the plain meaning of the text. Railroad Trainmen v. B. & O. R. Co., 331 U.S. 519, 528-529 , 67 S.Ct. 1387 , 1391— 1392, 91 L.Ed. 1646 (1947); United States v. Union Oil Co., 343 F.2d 29, 32 (9th Cir. 1965). The word “reduction” is susceptible to two interpretations, one which does actually reduce the Reservation and alter its boundaries; the other merely reducing the amount of land within the Reservation held exclusively by Indians. Cf. Bryan v. Itasca County, 426 U.S. 373 , 384 n.11, 96 S.Ct. 2102, 2108 , 48 L.Ed.2d 710 (1976).

. The General Allotment Act was known as the “Dawes Act”. It was enacted in an attempt to reconcile the Government’s responsibility for the Indians’ welfare with the desire of non-Indians to settle upon reservation lands. DeCoteau v. District County Court, 420 U.S. at 432, 95 S.Ct. at 1087. Congress, in the years prior to 1890, was thoroughly familiar with appropriate disestablishment language as evidenced by De-Coteau and the contrary language as reflected by Mattz and Seymour , the latter two cases being unilateral in character as is the present controversy.

. DeCoteau v. District County Court, 420 U.S. 425, 431 , 95 S.Ct. 1082, 1086 , 43 L.Ed.2d 300 (1975).