Amicus Curiae Brief — Hagen v. Utah
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No. 92-6281
IN THE DFFICE OF THE CLERK
Supreme Court of the Wuited me
OCTOBER TERM, 1992
ROBERT P. HAGEN,
‘ Petitioner,
STATE oF UTAH,
| Respondent.
On Petition for Writ of Certiorari to the
Supreme Court of the State of Utah
BRIEF FOR
DUCHESNE COUNTY AND UINTAH COUNTY, UTAH,
AS AMICI CURIAE IN SUPPORT OF
RESPONDENT STATE OF UTAH
HERBERT W. GILLESPIE
Duchesne County Attorney
P.O. Box 206
Duchesne, Utah 84021
(801) 738-2435
JOANN B. STRINGHAM
Deputy Uintah County Attorney
152 East 100 North
Vernal, Utah 84078
(801) 781-0770
Tom D. ToBIN
Counsel of Record
TOBIN LAW OFFICE, P.C.
P.O. Box 730
422 Main Street
Winner, SD 57580
(605) 842-2500
ES NS Se ES SMES SEAN
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
In light of conflicting decisions by the Utah Supreme
Court and the United States Court of Appeals for the
Tenth Circuit, whether the language of the Uintah Act
of May 27, 1902 (32 Stat. 245), as amended, providing
that the unallotted lands of the original Uintah Indian
Reservation shall be restored to the public domain, con-
stituted clear language of disestablishment, as this Court
has recognized, so as to confer criminal jurisdiction upon
the State of Utah over offenses involving Indians within
the area so restored to the public domain.
(i)
TABLE OF CONTENTS
QUESTION PRESENTED oo2ooooooooo.ooo.o.cccccccecceceececeee
INTEREST OF AMICI CURIAE |.
SUMMARY OF ARGUMENT ....W.... ee
TE
OT
APPENDIX
A. Stipulation, The Uintah and White River Bands
of Ute Indians v. United States, Nos. 47569 and
47570 (Ct.Cl. January 4, 1954) (139 Ct.Cl. 1
a esumnsvapeusnocsce
Letter to Governor Scott M. Matheson from
Vern Hamre, Regional Forester, United States
Dept. of Agriculture, dated April 8, 1977 ..........
C. Excerpts from Legislative and Administrative
Documents Confirming Disestablishment of
Original Uintah Reservation... ..........
. Opinion of Utah Court of Appeals in Roosevelt
I llleeee as
(iii)
20
la
25a
30a
iv
TABLE OF AUTHORITIES
CASES: Page
Affiliated Ute Citizens v. United States, 406 U.S.
Re ae Se 19
Andrus v. Utah, 446 U.S. 500 (1980) edie 9
Brendale v. Confederated Tribes and Bands of the
Yakima Indian Nation, 492 U.S. 408 (1989)... 1
Hanson v. United States, 153 F.2d 162 (10th Cir.
RR RST Nee eS AE RAE 19
DeCoteau v. District County Court, 420 U.S. 425
ES LE Se Ree a ee scuinpeniiainl passim
Mattz v. Arnett, 412 U.S. 481 (1978) ........ eee: 1, 3, 4, 20
Oregon Dept. of Fish and Wildlife v. Klamath In-
dian Tribe, 473 U.S. 753 (1985) 000000. 5
Pittsburgh & Midway Coal Mining Co. v. Yazzie,
909 F.2d 1387 (10th Cir. 1990), cert. denied,
ns eens 4-5
Roosevelt City v. Gardner, Case No. 910532-CA
(Utah App. November 9, 1992)... 20
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
ESSERE rere revels os See er en NE passim
Seymour v. Superintendent, 368 U.S. 351 (1962).. 1, 3, 4,
20
Solem v. Bartlett, 465 U.S. 463 (1984)... passim
Sowards v. Meagher, 108 P. 1112 (Utah 1910). 19
Uintah and White River Bands of Ute Indians v.
United States, 139 Ct.Cl. 1 (1957) 0 18, 19
United States v. Boss, 160 F. 132 (D. Utah 1906) . 19
Utah v. Hagen, P.2d ——, 191 Utah Adv.
I, My I 2
Utah v. Perank, —— P.2d ——, 191 Utah Adv.
FS Ee BE passim
Ute Indian Tribe v. State of Utah, 773 F.2d 1087
(10th Cir. 1985), cert. denied, 479 U.S. 994
RGR aE souewerearwe sn oe henna 2,6, 11
Ute Indian Tribe v. State of Utah, 716 F.2d 1298
REE Se ae cern 11
Ute Indian Tribe v. State of Utah, 521 F. Supp.
1072 (D. Utah 1981) 6, 11
Ute Indian Tribe v. United States, 14 Ind. Cl.
Sn A I ch ee
v
TABLE OF AUTHORITIES—Continued
STATUTES: Page
24 Stat. 388, General Allotment Act of 1887 _......... 3
28 Stat. 286, Act of August 15,1894 0... 6
30 Stat. 62, Act of June 7, 1807 ................................... 6-7
30 Stat. 924, Act of March 1, 1899 8
$2 Stat. 245, Act of May 27, 1902................................ 1, 3, 11
62 Stat. 72, Act of March 11, 1948 .............................. 8
CONGRESSIONAL MATERIALS:
36 Cong. Rec. 1387-1388 (1903) —....... 12
39 Cong. Rec. 1180-1184 (1905) _......... Ae 14, 15
I Bas Ce ID orcecreccentctetnrcecerctnenncenenccsemnes 17
H.R. Doc. 33, 58th Cong. Ist Sess. (1903) 0.0... 7
H.R. Doc. 1250, 63d Cong. 3d Sess. (1914) .............. 17
H.R. Rep. No. 291, 59th Cong. Ist Sess. (1906). 16
H.R. Rep. No. 791, 50th Cong. Ist Sess. (1988). 11
S. Rep. No. 139, 59th Cong. Ist Sess. (1906) 16
S. Rep. No. 4240, 58th Cong. 3d Sess. (1905) _..... 14, 15
PROCLAMATIONS AND EXECUTIVE ORDERS:
Exec. Order of January 5, 1882 (1 Kappler 901)... 6
Presidential Proclamation of July 14, 1905, 34
a 6
Presidential Proclamation of July 14, 1905, 34
REE EEE REE EES Aenea Sen oA EE 15-16
Presidential Proclamation of ‘September 1, 1906,
34 Stat. 3228 ........... RE EER LY Rene be ON = LOT 15-16
MISCELLANEOUS:
[1898] Commissioner of Indian Aff. Rep. ................ 7
[1899] Commissioner of Indian Aff. Rep. .............. 7,8
[1900] Commissioner of Indian Aff. Rep... 8
[1901] Commissioner of Indian Aff. Rep. ................ x
[1904] Commissioner of Indian Aff. Rep... x
[1905] Commissioner of Indian Aff. Rep... 17
[1911] Commissioner of Indian Aff. Rep... a,
i el 18
1957 Ute Ten-Year Development Program rade ear ene 19
1966 Review and Revision of the Uintah & Ouray
Indian Reservation-Wide Program ......._......... 19
1969 Annual Report of the Uintah Indian Tribe... 19
vi
TABLE OF AUTHORITIES—Continued
Page
Answer of the United States, (March 9, 1954)
in Ute Indian Tribe of the Uintah and Ouray
Reservation v. United States, No. 349, 14 Ind.
FF Rr a ee 10
Appellees’ Opening Brief, Ute Indian Tribe v.
State of Utah, 716 F.2d 1298 (10th Cir. 1983). 17
Brief for the United States as Amicus Curiae,
State of Utah v. Ute Indian Tribe, U.S. Supreme
Court No. 85-1821, November 1986... 2, 5, 20
Deseret Evening News, July 8,1905 ss 15
Deseret Semi-Weekly News, March 20,1905 15
T. Donaldson, The Public Domain, Its History,
EE I ee 11
F. Hoxie, Beyond Savagery: The Campaign to
Assimilate the American Indians, 1880-1920
(Univ. Microfilms 1977) ......................... = 252m 16
Letter of Commissioner of Indian Affairs to th
Secretary of the Interior (April 12, 1899) 7
Letter from Acting Commissioner to James Mc-
Laughlin (April 27, 1903) ... _ 12,13
Letter from Commissioner of Indian Affairs to
the Secretary of the Interior (July 27, 1903) 7
Letter from Commissioner of Indian Affairs to
Secretary of the Interior (June 19,1941) _—__—sOWwiM7--18
Memorandum for Petitioner in Response to the
Motion of the Ute Indian Tribe, Andrus v. Utah,
446 U.S. 500 (1980) (No. 78-1522) «8, 9, 10
Minutes of Councils with Uintah and White River
Indians (May 18 to May 23, 1903)... 13-14
Report of the Sec. of Interior (1905) 16
INTEREST OF AMICI CURIAE
The concern that prompts the filing of this Brief can
be simply stated. Prior to the recent litigation of this
reservation boundary issue, this Court, the United States
and the Tribe itself had taken the position that the Ute
Tribe’s reservation consisted of 1 million acres, not the
4 million acres encompassed within the boundaries of the
original Uncompahgre and original Uintah reservations.
More than 18,000 residents of Duchesne County and
Uintah County thus face the prospect of being suddenly
thrust into the status of residents of an Indian reserva-
tion, where their officials would have only limited juris-
diction and where they would have no elective voice in
the governance of their affairs and property by the Tribe.
For its part, the Ute Tribe has already enacted a com-
prehensive Tribal Code which, by its terms, is applicable
to Indians and non-Indians alike throughout both historic
reservation areas. See, e.g., Brendale v. Confederated
Tribes and Bands of the Yakima Indian Nation, 492 U.S.
408 (1989). For those additional reasons, amici spe-
cially support the Brief of Respondent State of Utah in
Support of Petition for Writ of Certiorari.
Compared to Solem v. Bartlett, 465 U.S. 463 (1984),
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977),
DeCoteau v. District County Court, 420 U.S. 425 (1975),
Mattz v. Arnett, 412 U.S. 481 (1973), or Seymour »v.
Superintendent, 368 U.S. 351 (1962), more people, more
area and more resources are at stake here because of
the conflicting decisions of the Utah Supreme Court and
the United States Court of Appeals for the Tenth Circuit.
SUMMARY OF ARGUMENT
The Utah Supreme Court correctly concluded that the
Uintah Act of May 27, 1902 (32 Stat. 245), as amended,
which provided that the unallotted lands of the Uintah
Reservation be restored to the public domain, constituted
clear evidence of disestablishment, as this Court has rec-
ognized. In a conflicting opinion, the en banc majority
of the court of appeals mistakenly believed that this
2
Court’s decision in Solem dictated “a different result,”
despite the fact that in Solem the Court indicated that it
was following a path clearly marked by its prior deci-
sions. As a result, the en banc majority failed to take
into account important factors uniformly understood to
constitute explicit expressions of congressional intent to
disestablish both the original Uintah and the original
Uncompahgre Reservation. Moreover, the en banc ma-
jority ignored the unwavering position of the United
States since 1897 that the original Uncompahgre Reserva-
tion no longer exists and paid little attention to the
similarly long-standing administrative and congressional
treatment of the original Uintah Reservation. In constru-
ing operative public domain language as it did, the en
bane majority thus attempted to “remake history,” which
this Court admonished “cannot” be done in order to
resurrect reservations that long ago ceased to exist.
DeCoteau, 420 U.S. at 449; accord Rosebud, 430 U.S.
at 615.
ARGUMENT
1. In 1986, after the en bane majority of the court of
appeals in Ute Indian Tribe v. State of Utah, 773 F.2d
1087 (10th Cir. 1985), cert. denied, 479 U.S. 994 (1986),
(Resp. App. 76a-137a), just fashioned the second largest
Indian reservation in the country, encompassing a 90 per-
cent non-Indian population and three million acres of
non-Indian owned lands (the one million acre reservation
where nearly all tribal members live was never in dis-
pute), the United States as Amicus Curiae suggested that
this Court wait to grant review. According to the United
States, there would be time enough to grant review if
the Utah Supreme Court should adhere to its prior view
in some future case. Brief for the United States Amicus
Curiae at 14-15, Utah v. Ute Indian Tribe, United States
Supreme Court No. 85-1821 ( November 1986). This Court
waited, and in State of Utah v. Hagen, —— P.2d ——,
191 Utah Adv. Rep. 26 (1992) (Resp. App. la-3a), and
State of Utah v. Perank, P.2d at ——, 191 Utah
Adv. Rep. 5 (1992) (Resp. App. 4a-75a), the Utah
3
Supreme Court did just what the United States thought
it might. After inviting the United States and the Ute
Indian Tribe to express their views, the Utah Supreme
Court reviewed the entire record (which included all
briefs) submitted in Ute Indian Tribe and disagreed with
the en bane majority of the court of appeals. In the
process, the Utah Supreme Court specifically noted:
This Court invited the United States Department of
Justice to file an amicus curiae brief in this case be-
cause of the importance of the issue of the location
of the boundaries of the Uintah-Ouray Indian Reser-
vation .. . The Department of Justice submitted to
this Court a copy of the amicus brief it filed for the
United States opposing the State’s petition for cer-
tiorari in Ute Indian Tribe. In that brief, the De-
partment stated, inter alia, that the issues presented
in the petition for a writ of certiorari did not require
review by the Supreme Court at that time because
they could be addressed in a later case if the Utah
Supreme Court were to disagree with the Tenth Cir-
cuit.
Perank, Resp. App. 6a (emphasis added).
As a result, an important question in federal law has
now been decided by the Utah Supreme Court and the
court of appeals in a way that underscores the conflict-
ing decisions. And now is the time for this Court to
authoritatively resolve this conflict.
Squarely at issue here is the Uintah Act of May 27,
1902, 32 Stat. 245, as amended, one in the series of sur-
plus land statutes Congress passed between 1887 and
1920 when land areas once set aside as Indian reserva-
tions were opened for settlement pursuant to § 5 of the
General Allotment Act of 1887, 24 Stat. 388. In the last
thirty (30) years, this Court has addressed these difficult
and complex questions a number of times to resolve simi-
lar conflicts and make clear important points of law.
Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud Sioux
Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau v. Dis-
trict County Court, 420 U.S. 425 (1975); Mattz v.
Arnett, 412 U.S. 481 (1973) ; Seymour v. Superintendent,
4
368 U.S. 351 (1962). The limited historical perspective
of Seymour and Mattz (no disestablishment intended)
was broadened considerably in Rosebud and DeCoteau
(disestablishment intended), and Solem confirmed, while
the end result could vary, congressional intent would
always control. The Utah Supreme Court decided the
issue within the guidelines of this precedent but the en
banc majority did not.
In Ute Indian Tribe, the en banc majority’s conclusion
that Solem “dictates” a different result with respect to
the crux of this case, i.e. the significance of operative
public domain terminology, is explicitly stated:
The original expression ‘return to the public domain’
does not reliably establish the clear and unequivocal
evidence of Congress’s intent to change boundaries.
Solem, 104 S.Ct. at 1166 [majority opinion].
Our conclusion is that the phrase ‘restore to the public
domain’ is not the same as a congressional state of
mind to disestablish [majority opinion].
Although the district court and the panel viewed this
as language of cession, I believe that Solem dictates
a different result [concurring opinion].
Prior to Solem, ‘public domain’ language could have
been construed as more conclusive evidence of dises-
tablishment; following Solem, the term must _be
viewed as ambiguous in portent . . . [concurring
opinion |.
Ultimately, I interpret Solem to hold that ‘publie do-
main’ language standing alone is insufficient to sup-
port a finding of explicit congressional intent to dis-
establish | concurring opinion].
Ute Indian Tribe v. Utah, Resp. App. 86a-87a, 92a-93a
(emphasis added).
And the extent to which the en bane majority departed
from the principles set forth by this Court is specifically
supported in a subsequent decision by a different panel
of the court of appeals, as specifically noted by the Utah
Supreme Court. Pittsburgh & Midway Coal Mining Co.
5
v. Yazeie, 909 F.2d 1387 (10th Cir. 1990), cert. denied,
111 S.Ct. 581 (1990). See Resp. App. 24a-27a.
The Utah Supreme Court could have also noted that
the en bane majority opinion was further undermined by
a subsequent admission of the United States:
“In the end, however, the court of appeals’ analysis
lon Uncompahgre] is unconvincing . . . the court of
appeals erred in holding that the Uncompahgre Res-
ervation was not disestablished... .”
Brief for the United States as Amicus Curiae at 18, 20,
Utah v. Ute Indian Tribe, U.S. Supreme Court No. 85-
1821 (November 1986) (emphasis added).!
The United States maintained, on the other hand, that
the same analysis of similar documentation in the same
opinion by the same en banc majority was essentially
sound with respect to the original Uintah Reservation.
Even the United States could not explain how the en banc
majority could, consistent with this Court’s precedents,
resurrect a two million acre reservation when that reser-
vation ended in 1897, and has not been treated as an
Indian Reservation by the Department of the Interior or
any other federal agency since then. And even the most
sophisticated argument can not cover up the glaring in-
consistencies inherent in such a position—especially to
the extent that the Uncompahgre Acts are in part
materia with the Uintah Acts. See, e.9., Oregon Dept. of
Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753
(1985). Properly construed, the Uncompahgre disestab-
lishment indicia, all of which was substantially ignored
by the en bane majority, was also present in the Uintah
documents. It should have reinforced the conclusion that
the original Uintah Reservation was similarly disestab-
lished. Blinded by a fundamental misreading of Solem,
the en banc majority missed its usual way in both in-
stances, and the Utah Supreme Court was not remiss in
' This is a significant admission because in this Court the United
States has previously, without exception, argued against reservation
disestablishment. See, n.12, infra.
6
refusing to following the same path. For this reason, a
limited review of the Uncompahgre documentation is both
appropriate and informative, even if the area itself is not
directly at issue here.”
2. The original Uncompahgre reservation, created by
Executive Order of January 5, 1882 (I Kappler 901) (LD
12), encompassed more than 1.9 million acres, nearly all
of which is in Uintah County.* In the Act of August 15,
1894, ch. 20, 28 Stat. 286, 337-338 (LD 35), Congress
directed that when a Presidential commission determined
which lands would remain after allotments to the Uncom-
__pahgre Indians, those unallotted lands “shall, by procla-
mation, be restored to the public domain. . . .”* Three
years later, pursuant to the Act of June 7, 1897 (30
* The en banc majority reestablished the original boundaries of
both reservations. The offenses in Hagen/Perank occurred in the
town of Myton, Utah, within the original boundaries of the Uintah
reservation and, for the most part, the Utah Supreme Court limited
its opinion to this area. (The Utah Court did question the reserva-
tion status of the one million acre addition to the Uintah National
Forest (1905 Proclamation of President Roosevelt, 34 Stat. 3116)
which according to the en bane majority is now also within the
Uintah reservation tthe district court and the panel agreed it was
not). Resp. App. at 62a, n.28. Until 1977, the United States De-
partment of Agriculture, Forest Service, agreed with the district
court and the panel. See Amici App. B at 25a-29a.)
3 The record on appeal includes a Joint Compendium of Legisla-
tive Documents and Joint Exhibits, which include Executive Or-
ders, Presidential Proclamations and certain Secretarial Orders,
complied and used by the District court. In addition to formal
citation form, these sources are referred to parenthetically by their
corresponding index numbers, LD 1 to LD 217, and JX 1 to JX 485.
See Ute Indian Tribe, 773 F.2d at 1094, n.2, and Ute Indian Tribe,
521 F. Supp. at 1080, n.17.
* Importantly, the same Act directed the commission to:
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 severality to said Indians.
28 Stat. at 337, Sec. 22 (emphasis added).
7
Stat. 62, 87) (LD 49), implementing the 1894 Act, ap-
proximately 12,500 acres within this area (or less than
1 percent of the original Uncompahgre Reservation) were
allotted, while the remaining lands were thereafter
treated as “restored to the public domain,” as the Com-
missioner of Indian Affairs stated.®
There was a clear continuity of purpose between the
1894 Act containing operative public domain language
(28 Stat. 337) and the 1897 Act, which mandated the
opening of the original Uncompahgre reservation (30
Stat. 87). See Resp. App. 118a-119a. The legislative his-
tory of the 1897 Act shows that the purpose of this pro-
vision was to carry forth and implement the 1894 Act. It
shows as well that the purpose remained disestablish-
ment. The en banc majority did not explain how, in the
face of this legislative history, Congress could have in-
tended the original Uncompahgre reservation to remain
intact. More than that, the en banc majority failed even
to discuss the matter. (See Resp. App. 85a-90a.).
The record also shows that, after the opening in 1898,
there was “a widely held, contemporaneous understand-
ing ...” (Solem, 465 U.S. at 471), that the Uncom-
pahgre reservation had been disestablished. Again, the
en bane majority does not discuss the fact that officials
of the Department of the Interior immediately began to
refer to and treat the area as the “former” or “late”
reservation.* The record also reveals a firm understand-
ing that the unallotted lands were “restored to the pub-
5 E.g., [1899] Commissioner of Indian Aff. Rept. at 543 (JX
117); [1911] Commissioner of Indian Aff. Rept. at 92 (JX 253).
* See, e.g., [1898] Commissioner of Indian Aff. Rept. at 43 (JX
108) ; [1899] Commissioner of Indian Aff. Rept. at 43, 351-52 (JX
117); Letter of the Commissioner of Indian Affairs to the Secre-
tary of the Interior, dated April 12, 1899 (JX 113): H.R. Doe. No.
33, 58th Cong., Ist Sess., at 1, 2 (1903) (letters of the Secretary
and Commissioner) ; Letter of the Commissioner of Indian Affairs
to the Secretary of the Interior, dated July 27, 1903 (JX 168).
8
lic domain.” * Because these materials contain unambig-
uous expressions of disestablishment by government offi-
cials responsible for implementing federal Indian policy,
they constitute authoritative, contemporaneous _ state-
ments reflecting the intent of Congress. See, e.g., Rose-
bud, 430 U.S. at 602-03.
Moreover, the en banc majority failed to take into ac-
count contemporaneous legislation treating the original
Uncompahgre reservation as having ended. The Act of
March 1, 1899 (LD 61), for example, described the area
as the “former Uncompahgre Indian Reservation.” 30
Stat. 940. Because this provision was passed by the same
Congress which enacted the 1897 Act ( viz., the 55th
Congress), it constitutes compelling evidence of a con-
gressional intent to disestablish. See Rosebud, 430 U.S.
at 603 n.25 (significance attributed to similar legislation
passed shortly after the subject act “by the same Con-
gress. ..’’).
Finally, the en bane majority said nothing about the
unwavering position of the Department of the Interior
since 1897 that the original Uncompahgre reservation no
longer exists, a position the federal government has taken
in this Court. Memorandum for the Petitioner in Re-
sponse to the Motion of the Ute Indian Tribe. at 6,
Andrus v. Utah, 446 U.S. 500 (1980). ( No. 78-1522)
(September 25, 1979) [hereinafter Federal Government
Memorandum in Andrus v. Utah]. Nor did the en banc
majority opinion address the 1948 Act (62 Stat. 72) (LD
187)—the Hill Creek Extension—extending what was
then the Tribe’s existing reservation to include lands sit-
uated within the original Uncompahgre reservation,
which, in the words of the Solicitor General, would have
constituted “a futile act if the latter Reservation stil]
subsisted. . . .” Federal Government Memorandum in
7 [1899] Commissioner of Indian Aff. Rept. at 543 (JX 117):
[1900] Commissioner of Indian Aff. Rept. at 615 (JX 123): [1901}
Commissioner of Indian Aff. Rept. at 669 (JX 154): [1904] Com-
missioner of Indian Aff. Rept. at 564 (JX 198).
9
Andrus v. Utah, supra, at 5.* In the 1948 Act itself,
Congress once more referred to the historic Uncompahgre
reservation in the past tense, that is, as the “former”
reservation. 62 Stat. 77 (§2). Moreover, “nothing since
1948 indicates any Congressional change of mind. . .”
Federal Government Memorandum in Andrus v. Utah,
supra, at 5.
Given its constancy, this long standing administrative
and congressional treatment was entitled to considerable
weight. But there it was given none, contrary to Rose-
bud’s instruction that:
the fact that neither Congress nor the Department of
Indian Affairs has sought to exercise its authority
over this area, or to challenge the State’s exercise of
authority is a factor entitled to weight as a part of
the “jurisdictional history.”
430 U.S. at 604.
As to this part of the region—the original Uncom-
pahgre reservation—the en bane majority thus contra-
dicted the federal government’s position, taken in this
Court, that the reservation ended in 1897, and has not
been treated as an Indian reservation by the Department
of the Interior or any other federal agency since then.
Indeed, the Uncompahgre Utes, alleging that they had
“lost the reservation,” recovered money damages against
the United States, as the government told this Court.
See Petition, at p.7, in Ute Indian Tribe v. United States,
14 Ind. Cl. Comm. 707 (1965) (that the Uncompahgre
Band of Utes “have lost the reservation set aside for
their use,” that the federal government “refused to pro-
vide any reservation for said Indians,” and that the gov-
ernment did not maintain the original “Uncompahgre
Reservation in Utah as a reservation.”).
In Andrus v. Utah, 446 U.S. 500 (1980), the Ute
Tribe had moved to intervene on the basis that the lands
® The concurring opinion at least acknowledges that the 1948 Act
seems “irreconcilable with continued reservation status.” Resp.
App. 100a.
10
involved were within the original Uncompahgre reserva-
tion and that this reservation had not been disestablished.
The Solicitor General opposed the Tribe’s intervention
on the basis that:
The fact is that, for several decades at least, the De-
partment of the Interior has considered the Uncom-
pahgre Reservation as disestablished. That remains
its view today. Our own review of the evidence af-
fords no basis for disagreeing with that conclu-
ee
Federal Government Memorandum in Andrus v. Utah,
at 6. Among other factors, the Solicitor General pointed
out that “Congress treated the Uncompahgre Reserva-
tion as a mere temporary asylum for the Ute Band of
that name,” “in 1965, the Ute Tribe obtained a stipu-
lated judgment in the Indian Claims Commission to com-
pensate it for the failure of the United States to provide
the Uncompahgre Band with a permanent Reservation
(Ute Indian Tribe of the Uintah and Ouray Reservation
v. United States, 14 Ind. Cl. Comm. 707),” and “at no
time since 1897 does it appear that the Department of the
Interior (or any other government agency) has treated
the Reservation as still in existence.” Jd. at 4-5. More-
over, the Solicitor General informed this Court that “the
historic evidence compels the conclusion that the Uncom-
pahgre Reservation no longer subsists.” Jd. at 5 (em-
phasis added).
There is more. The United States answered the
Tribe’s petition in the Indian Claims Commission by stat-
ing that with respect to the original Uncompahgre
reservation-——which the Tribe itself alleged had been
disestablished—the Tribe “suffered no loss by the restora-
tion to the public domain . . . of the unallotted lands
within the area... .” Answer of the United States, at
p.17 (March 9, 1954), in Ute Indian Tribe of the Uintah
and Ouray Reservation v. United States, No. 349, 14 Ind.
Cl. Comm. 707 (1965) (emphasis added). Assuming the
restored-to-the-public domain provision of the 1894 Act
was implemented by the 1897 Act, the en bane majority’s
point instead was that Solem altered the settled rule that
11
such language constituted a clear and unequivocal ex-
pression of disestablishment. It is on that point that the
en bane majority erred and rendered a decision in con-
flict with the decisions of this Court, the lower federal
courts, and now the Utah Supreme Court. Moreover, it
is readily apparent that this fundamental misconception
distorted the perspective from which the Uintah docu-
ments should have been viewed.
3. The Brief of Respondent in Support of Certiorari
sets forth in a concise manner the general arguments that
clearly demonstrate that the Utah Supreme Court was
correct in its analysis of the Uintah Act, as amended,
and in its conclusion—and there is no need to repeat
them here. Brief of Resp. at 13-26. Even a brief sum-
mary of some of the more specific Uintah references in
support of this conclusion keeps the issue in the proper
historical perspective. It also reinforces the position that
had the en bane majority not been so blinded by misread-
ing Solem, it could not have ignored the combined weight
of Uintah documentation. The opinion of the district
court, Ute Indian Tribe v. State of Utah, 521 F. Supp.
1072, 1111-1150 (D. Utah 1981), the panel of the court
of appeals, Ute Indian Tribe v. State of Utah, 716 F.2d
1298, 1307-1313 (10th Cir. 1983), and the dissenting
en bane opinion of Judge Seth at 773 F.2d at 1108-1114
(Resp. App. 105a-137a), recount and reflect this perspec-
tive. And nothing in Solem or any other opinion of this
Court even suggests that it could be so easily discounted,
as the en banc majority incorrectly assumed.
We start, without argument, with the general propo-
sition, as stated in H.R. Rep. No. 791, 50th Cong., Ist
Sess. (1888) (LD 15): “[t]he policy of the Government
from its earliest days has been to restore Indian reserva-
tions or portions thereof to the public domain as the
exigencies of advancing population required it... .”
Id. at 3: See e.g. T. Donaldson, The Public Domain, Its
History, with Statistics (1884) 240-248. Congress passed
the Uintah Act of May 27, 1902, 32 Stat. 245 (LD &2),
with this operative public domain language expressly
12
stated. And prior to the passage of the 1903 Uintah Act,
an amendment was proposed to the appropriations bill
which provided money for the resurveying of portions of
the southern and western boundaries of the Uintah In-
dian Reservation. 36 Cong. Rec. 1387 (LD 90). Con-
gressman Sutherland of Utah, later to become United
States Supreme Court Justice Sutherland, objected to the
amendment on the basis that it would not serve any use-
ful purpose. In taking this stance, Congressman Suther-
land made the following remarks:
If the Uintah Reservation is opened, which I believe
it will be, this appropriation . . . for reestablishing
the boundary lines of the reservation is entirely use-
less. 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 . . . without
any useful purpose whatever... .
36 Cong. Ree. 1388 (LD 90) (emphasis added).
Moreover, the Congressman also stated that “[t]he res-
ervation will be simply restored to the public domain.”
Id. (emphasis added). The effect that the 1902 Act
was intended to have on the boundaries of the Uintah
Reservation was neither questioned nor disputed; in fact,
the amendment which was the focus of Congressman
Sutherland’s remarks was apparently rejected on that
basis. See id.
By letter dated April 27, 1903 (JX 159), the then
Acting Commissioner of Indian Affairs directed United
States Inspector James McLaughlin to go to Utah, ex-
plain the legislation to the Ute Tribe and obtain the
consent of the Uintah and White River Utes to the allot-
ment of their lands.” The instructions contained in that
letter made clear that allotments were to be made and
® James McLaughlin was the same United States Indian Inspector
who conducted the 1901 and later negotiations with the Rosebud
Indians involved in Rosebud Siour Tribe v. Kneip, supra, 430 U.S.
at 590, 606-07, & 610.
13
that the unallotted lands were to be restored to the
public domain. /d. at 4-5. Moreover, the opening of the
surplus lands for public entry and settlement was char-
acterized as a “restoration to the public domain.” /d.
Conferences with the Utes were conducted by Inspector
McLaughlin from May 18 to May 23, 1903. See Minutes
of Councils with Uintah and White River Indians at 34
(1903) (JX 162) (hereafter Transcript). Significantly,
as the Utah Supreme Court noted, the Inspector pointed
out:
|E]jach of you will have a boundary to your individ-
ual holdings and there will also be a border to that
250 000 acre tract set aside for pasturage. . . .
You say that line is very heavy and that the reserva-
tion is nailed down upon the border. That is very
true as applying to the past many years and up to
now, but congress has provided legislation which will
pull up the nails which hold down that line and after
next year there will be no outside boundary line to
this reservation.
Transcript, at 42 (emphasis added). Resp. App. 37a.
The transcript also attests that the tribal members
were well informed and understood the point exactly.
See, ¢.g., Transcript at 8-9, 12-22, 30. 32-33, 39-41, 45,
48, 53-56. For example, in the Council held on May 20,
1903, Wapsoch, a Uintah Ute, stated “[w]e do not want
this reservation line changed in any way.” Transcript, at
17 (emphasis added). Later, in the same Council, Red
Cap, a White River Ute, confirmed this understanding:
The Indians have understood what they have heard,
and they hold this reservation, and they do not want
any of it cui off. We want this reservation line to be
just as it is. I hold it for my children, and I don’t
want to part with it. I have heard talk about selling
before... .
Transcript, at 20 (emphasis added). And, in the Council
held on May 22, 1903, Parank stated as follows:
The Indians are talking about this reservation line
that has been put here for along time, and they can-
SS ee
14
not understand why it is thrown aside. It was put
down a long time ago. . .. Now they are trying to
throw it aside... .
Transcript, at 56 (emphasis added).
After Inspector McLaughlin completed his report, Con-
gress revisited the issue more than once because of delays
in surveys and allotments. Again the public domain
references were consistent and unequivocal. Several ex-
amples include:
Hereby provided that so much of said lands as will be
restored to the public domain shall be open to settle-
ment and entry by proclamation of the President .. .
And further provided, that for one year immediately
following the restoration of said lands to the public
domain said lands...
39 Cong. Rec. 1180 (1905) (LD 103) (emphasis added).
Provided, Phat so much of said lands as will be under
the provision of said acts restored to the public do-
main shall be open to settlement and entry by procla-
mation of the President .. .
39 Cong. Rec. 1180 (1905) (LD 103) (emphasis added).
Representative Sherman. “{T]he amendment under-
takes to do this: To restore this [the lands to be
opened for settlement] to the public domain on the
10th of March... .”
Id. at 1183 (emphasis added).
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. . .
S. Rep. No. 4240, 58th Cong., 3d Sess. at 14-16 (1905)
(LD 102), letter of the Commissioner of Indian Affairs
contained in that Report (emphasis added).
The Utah Supreme Court recognized minor changes in
the final Uintah amendments were not intended or under-
stood to alter this basic proposition as it related to reser-
ea
15
vation disestablishment. Resp. App. 28a-43a."" The proc-
lamation of President Roosevelt, dated July 14, 1905, con-
firms that the Utah Supreme Court was correct. 34 Stat.
1 As the Utah Supreme Court explained, the 1905 congressional
debate also addressed the “manner of such opening”, Perank, Resp.
App. 42a-43a. Because Congress could not have considered the issue
in an historical vacuum, one would expect some congressional refer-
ence to precedent—and here the precedent cited was the 1904
Rosebud legislation (the same Act that the Rosebud court held
reflected the base line purpose of disestablishment in the Rosebud
legislation). Rosebud, 430 U.S. at 592-603.
The provisions of this [Uintah] bill (Senate Bill 6867) pre-
scribing the manner in which the lands are to be opened are
similar to the provisions under which the Rosebud Indian
Reservation in South Dakota, ....
S. Rep. 4240, 58th Cong. 3d Sess., 15-16 (1905) (LD 102) (em-
phasis added).
Representation Sherman, The idea being to have such rules
and regulations as were prescribed, for instance, in the Rosebud
Reservation opening. .. .
39 Cong. Rec. 1181 (1905) (LD 103) (emphasis added).
{[wjhereas if the opening be by registration and drawing, as
was done at Rosebud, ....
Letter from Secretary Hitchcock to the President, as contained in
39 Cong. Rec. 1184 (1905) (LD 103) (emphasis added).
Other sources confirm this justifiable expectation :
As stated by Hon. W.A. Edwards, Commissioner General of
the United States Land Office at Washington, D.C., it is quite
certain that regulations similar to those governing the opening
of the Rosebud Reservation in Dakota last year, will obtain at
the opening of the Uintah Reservation in this state... .
Deseret Evening News, July 8, 1905, at 5 (JX 282) (emphasis
added).
Senator Smoot was pleased with the provisions of the reserva-
tion bill, .... The manner of opening the reservation will no
doubt be the same as that employed at the Rosebud reservation.
Deseret Semi-Weekly News, March 20, 1995, at 2, (JX 236) (em-
phasis added).
The opening to settlement and entry under the homestead law
of the Rosebud Indian lands . . . was successfully accomplished,
... .» Equally successful was the opening to settlement and
entry under the homestead laws on August 28, 1905, of the
16
3119-20 (1905) (LD 108) (emphasis added). Resp. App.
44a-47a.
More than that, one year later, when President Roose-
velt made an adjustment to compensate for an erroneous
homestead entry on reserved lands, he expressly set forth
in a 1906 Proclamation that the tract in question was then
(1906) in the “former Uintah Indian Reservation in
Utah” and it too was “restored to the public domain”,
as the Utah Supreme Court aptly pointed out. 34 Stat.
3228 (1906) (LD 132) (emphasis added). Resp. App.
47a-48a.
And this same understanding is repeatedly confirmed in
nearly every source, time and time again, throughout the
entire record of the subsequent history of both original
reservations. Nothing in the briefs or records in Sey-
mour, Mattz, DeCoteau, Rosebud, or Solem even ap-
proaches the consistency and force of this documentation.
unreserved and unallotted lands of the Uintah Indian Reserva-
tion in Utah,....
Report of the Secretary of the Interior (1905) at 1495 (JX 328)
(emphasis added).
A precedent for the proposed [Uintah] legislation will be found
in the granting of a similar privilege by the last Congress to
homestead settlers upon certain lands which were formerly a
part of the Rosebud Indian Reservation. .. .
S. Rep. 139, 59th Cong. Ist Sess. 2 (1906) (LD 117) (emphasis
added ).
A precedent for the proposed [Uintah] legislation will be found
in the granting of a similar privilege by the last Congress to
homestead settlers upon certain lands which were formerly a
part of the Rosebud Indian Reservation. .. .
H.R. Rep. 291, 59th Cong. Ist Sess. 2 (1906) (LD 119) (emphasis
added ).
A comprehensive thesis by the author of the study that figured
prominently in the Solem opinion (Solem, 465 U.S. at 466 n.5, 477
n.21, 479 nn. 22 & 23, 480 nn. 24 & 25), expressly recognized that
the Utah Uintah Act and others “followed the model” of the 1904
Rosebud Act. F. Hoxie, Beyond Savagery: The Campaign To
Assimilate The American Indians, 1880-1920 at 390 (Univ. Micro-
films 1977).
17
fifteen pages of representative excerpts are set forth in
Amici App. C.
This documentation reflects, in a variety of ways, pre-
cisely what the Commissioner of Indian Affairs at the
time noted in his 1905 Annual Report when he described
“the sale of the Ute lands restored to the public domain’.
[1905] Commissioner of Indian Aff. Rep. at 147 (JX
323) (emphasis added). The following year, the Com-
missioner repeated the point in a letter to the Secretary
of the Interior that the lands were “restored to the pub-
lic domain” and that these lands were “former reserva-
tion lands.” 40 Cong. Rec. 3405 (1906) (emphasis
added). As early as 1906, the State of Utah formally
reached this same conclusion. In a 1906 Opinion of the
Utah Attorney General quoted in the March 31, 1906
edition of the Vernal Express, Vernal, Uintah County,
Utah, the Attorney General concluded that the 1864
Uintah Reservation was no longer an existing reserva-
tion because it had become “a part of the public domain”
and referred to it as a “former” Indian reservation.
Appellees’ Opening Brief, Add. F, Ute Indian Tribe, 716
F.2d 1298 (10th Cir. 1983) (emphasis added).
A decade later, the description was still the same. In
a Report submitted to Congress in 1914 respecting the
water rights of the Indians within the original Uintah
Reservation, H.R. Doc. No. 1250, 63d Cong. 3d Sess.
(September 9, 1914) (LD 149), the Secretary of the
Interior stated that the surplus lands of that Reserva-
tion “were restored to the public domain” ... and de-
scribed the Uintah Reservation as the “former” Reser-
vation. Jd. at 2, 5 (emphasis added).
There is no question that this construction confirmed
that the land was not within the boundaries of the orig-
inai Uintah Reservation. In a letter to the Secretary
of the Interior dated June 19, 1941 (JX 450), respecting
the undisposed surplus lands of the original Reservation,
the Commissioner of Indian Affairs described these lands
as “lying within the former boundaries of the Uintah
18
and Ouray Indian Reservation . . . which lands were
opened to entry under the Act of May 27, 1902. . ., as
amended.” /d. at 1 (emphasis added). Later in a pub-
lished Opinion of the Solicitor of the Department of the
Interior dated January 27, 1947, 59 I.D. 393 (JX 454),
it was noted: “Allotments were made . . ., and the balance
of the lands |of the Reservation], with exceptions not here
material, were restored to the public domain pursuant to
the Act of May 27, 1902, as amended... .” Jd. at 393
(‘emphasis added).
Until recently, not even the Ute Tribe disagreed with
this conclusion. In fact, in 1957, the Ute Tribe and the
United States so stated in related litigation in the Court
of Claims, Uintah and White River Bands of Ute Indians
v. United States, 1389 Ct. Cl. 1 (1957). There, as the
Utah Supreme Court stressed, they entered into a Stip-
ulation, with which the Court of Claims agreed (139
Ct. Cl. at 5-6, 22), quoted the 1902 Act and then suc-
cinctly stated the critical point:
“Pursuant to this [1902] Act and amendments
thereto, more fully set out hereafter, allotments in
severalty, aggregating 39,349.84 acres by 1905, were
made to the Uintah and White River Indians, and
surplus lands (with the exception of the forest re-
serve and reclamation withdrawals and certain min-
eral entries) were restored to the public domain, and
opened for disposition under the public land laws for
the benefit of the Indians.”
See App. A to this Brief, at la-24a (emphasis added).
Resp. App. 55a-56a. What is more, the United States
‘and the Ute Tribe) consistently and repeatedly main-
tained the original Uintah Reservation was a “former”
reservation (Amici App. A, infra, at pp. 15a, 16a, 18a,
23a); and throughout its opinion and findings, the Court
of Claims also treated the original Uintah Reservation as
having ended. E.y., 139 Ct. Cl. at 2, 25, 28, 56, 64,
69, 70.
This explains why, until recently, the Ute Tribe itself
treated only the trust lands as the Tribe’s post-1905 res-
a ee, EE Et A No ty Ct ie th
ee ee es
~ inl ts
19
ervation.'' The Utah Supreme Court quoted with approval
the manner in which the panel of the court of appeals
relied on this acknowledgment. Resp. App. 56a. On re-
hearing, Judge Seth again observed:
Statements made by the Utes themselves also tend to
detract from their position. For example, the 1957
Ute Ten Year Development Program provides a de-
scription of the total acreage of the Uintah and Ouray
Reservation as currently containing 1,010,000 acres.
Ute Indian Tribe, Resp. App. 132a (Seth, J., dissenting)
(emphasis added).
Thus, for more than half a century the lands “consti-
tuting” the Tribe’s reservation were considered to be
only those lands held in trust, as this Court itself recog-
nized in Affiliated Ute Citizens v. United States, 406
U.S. 128, 141 (1972), in a different context.
Finally, in other decisions rendered in prior litigation,
other courts routinely interpreted the 1902 Act, as
amended, in a manner that supports all of the points
noted above. Indeed, in 1946, the Tenth Circuit ex-
pressly held in Hanson v. United States, 153 F.2d 162
(10th Cir. 1946)—a decision unaccountably ignored by
the en bane majority (but not by the Utah Supreme
Court )—that the unallotted and unreserved lands of the
original Uintah Reservation were “restored to the public
domain by the Act of May 27, 1902... .” Id. at 168
(emphasis added). Resp. App. 59a.
'! See, e.g., 1957 Ute Ten-Year Development Program, at 66-68
(JX 465); 1966 Review and Revision of the Uintah & Ouray Indian
Reservation-Wide Program, at 7, 8; 1969 Annual Report of the
Uintah Indian Tribe, at 1 (JX 473).
2 See Hanson v. United States, 153 F.2d, at 162-63; Uintah and
White River Bands of Ute Indians, 139 Ct.Cl., at 5-6 & 21-22:
United States v. Boss, 160 F. 132, 132-33 (D. Utah 1906) ; Sowards
v. Meagher, 108 P. 1112, 1114 (Utah 1910).
20
CONCLUSION
For the foregoing reasons and the reasons stated in the
Petition and the Brief of Respondent State of Utah, the
petition for a writ of certiorari should be granted. In
addition, it may be appropirate for the Court to invite
the United States to express its views in this case.”
‘8 Two weeks after the Utah Supreme Court decided this issue,
the Ute Indian Tribe filed for injunctive relief in the United States
District Court of Utah seeking to enjoin the Utah Supreme Court
from enforcing its decision (even though the Utah Attorney Gen-
eral had previously acknowledged publicly that no one would act on
the decision until this Court had an opportunity to review a peti-
tion for writ of certiorari). Brief of Resp. at 12. This renewed
federal litigation, in which amici are named defendants again, is
now proceeding on a briefing schedule, and notwithstanding the
objections of defendants, that schedule is on going while this Peti-
tion is pending. For this reason, additional resources would be
conserved and further divisiveness avoided if this Court acted
favorably on the Petition at this time and then invited the United
States to express its views on the merits. Also, other cases such as
Roosevelt City v. Gardner, Case No. 910532-CA, (Utah App. Novem-
ber 9, 1992). [Amici App. D at 45a-47a], would then be held in
abeyance. See, Brief of Resp. at 12.
Since Seymour the Court has invited the United States to ex-
press its views prior to granting certiorari in each of the reserva-
tion boundary cases it has decided. See the Orders in Solem v.
Bartlett, 460 U.S. 1035 (1983); Rosebud Sioux Tribe v. Kneip, 423
U.S. 1047 (1976) ; DeCoteau v. District County Court, 416 U.S. 966
(1974) ; Mattz v. Arnett, 409 U.S. 819 (1972) ; Seymour v. Super-
intendent, 368 U.S. 351, 352 (1962). (In all five cases, the United
States contended that reservation status had not ended. See Solem,
465 U.S. at 464; Rosebud, 430 U.S. 584, 585; DeCoteau, 420 U.S.
425, 426 (1975); Mattz, 412 U.S. 481, 482; Seymour, 268 U.S. 351,
352 (1962)). Here the conflict is clear. And the United States has
already submitted its views to this Court in Ute Indian Tribe and
resubmitted those same views to the Utah Supreme Court:
If the Utah Supreme Court nevertheless should adhere to its
prior view in some future case, notwithstanding the interven-
ing decision in Solem and the exhaustive consideration of the
issue by the courts below, there will be time enough for this
Court to grant review.
Brief for the United States as Amicus Curiae at 14-15, State of
Utah v. Ute Indian Tribe, U.S. Supreme Court No. 85-1821 (Novem-
ber 1986) (emphasis added).
November 18, 1992
21
Respectfully submitted,
HERBERT WM. GILLESPIE
Duchesne County Attorney
P.O. Box 206
Duchesne, Utah 84021
(801) 738-2435
JOANN B. STRINGHAM
Deputy Uintah County Attorney
152 East 100 North
Vernal, Utah 84078
(801) 781-0770
Tom D. ToBIN
Counsel of Record
TOBIN LAW OFFICE, P.C.
P.O. Box 730
422 Main Street
Winner, SD 57580
(605) 842-2500
APPENDICES
a6
a =
so
ZZ.
* oS ee OR yee
Plaintiffs,
Defendant.
THE UINTAH AND WHITE RIVER BANDS OF UTE INDIANS,
Vv.
THE UNITED STATES OF AMERICA,
een
2a
IN THE UNITED STATES COURT OF CLAIMS
No. 47569
No. 47570
THE UINTAH AND WHITE RIVER BANDS OF UTE INDIANS,
Plaintiffs,
Vv.
THE UNITED STATES OF AMERICA,
Defendant.
STIPULATION
It is agreed between the parties, in the above-captioned
cases, for the purpose of these cases and no other purpose,
as follows:
1. In pre-white times, Indians who have since come to
be known as Utes, Southern Paiutes, and Shoshones lived
within the territory now included in the State of Utah.
2. By Executive Order of October 3, 1861, (I Kappler
900) the “Uintah Valley” was “reserved to the United
States and set apart as an Indian reservation.” In the
absence of an authorized survey, the area set apart was
described as follows:
“
.
. . the entire valley of the Uintah River within
Utah Territory, extending on both sides of said river
to the crest of the first range of contiguous moun-
tains on each side. . .”
The lands which are involved in the above-captioned
cases are within the area so described. A copy of the said
3a
Executive Order is appended hereto ‘(Appendix A) and
incorporated by reference.
3. By an Act of May 5, 1864, (13 Stat. 63) it was
provided
“. . . That the superintendant of Indian affairs for
the Territory of Utah be, and he is hereby, author-
ized and required to collect and settle all or so many
of the Indians of said territory as may be found
practicable in the Uintah Valley, in said territory,
which is hereby set apart for the permanent settle-
ment and exclusive occupation of such of the different
tribes of Indians of said territory as may be induced
to inhabit the same.”
A copy of the said Act is appended hereto (Appendix
B) and incorporated by reference.
4. By an Act of February 23, 1865, (13 Stat. 432)
“. . . to Extinguish The Indian Title to Lands In The
Territory of Utah Suitable For Agricultural And Mineral
Purposes [,]” the President was authorized and directed
to enter into treaties with the various tribes of Indians
of Utah Territory, providing for the surrender of their
possessory right to all such lands, except such part as
might be set apart for reservations. A copy of the said
Act is appended hereto (Appendix C) and incorporated
by reference.
5. Pursuant to the Act of February 23, 1865, treaties
were negotiated with the “Pie-ede or Pah-Ute” Indians on
September 18, 1865 (unpublished), the “Weber Ute” on
October 30, 1865, (5 Kappler 698), and various groups
of “Utah” Indians on June 8, 9, and 10, 1865 (5 Kappler
695). None of the said treaties was ever ratified.
6. The Indian parties to the treaty negotiated on June
8, 9, and 10, 1865, commonly referred to as the Spanish
Fork Treaty, were designated therein as the “. . . Utah,
Yampah Ute, Pah-Vant, Sanpete Ute, Tim-p-nogs and
4a
Cum-nm-bah Bands of the Utah Indians occupying the
lands within Utah Territory, . . .” The said treaty pro-
vided for the cession by said Indians of “all their posses-
sory right of occupancy” to an area described therein,
reserving a designated part thereof for their exclusive
use and occupation as follows:
“Art. II. There is however reserved for the ex-
clusive use and occupation of the said tribes the fol-
lowing tract of lands; viz ‘the entire valley of the
Uintah River within Utah Territory extending on
both sides of said river to the crest of the first range
of contiguous mountains on each side’ which said
tract shall be, so far as is necessary, surveyed and
marked out, set aside and reserved for their exclusive
use and occupation nor shall any white person, unless
he be in the employ of the Indian authorities, be
permitted to reside upon the same, without permis-
sion of the said tribe, and of the Superintendent of
Indian Affairs or United States Indian Agent. It is
however understood that should the President of the
United States hereafter see fit to place upon the
reservation, any other friendly tribe or bands of
Indians of Utah Territory, to occupy the same in
common with those above mentioned, he shall be at
liberty to do so.
“Art. III. The said tribes and bands agree to re-
move to an settle upon the said reservation within
one year after the ratification of this treaty, provided
the means are furnished them by the United States
to enable them to do so—In the meantime it shall be
lawful for them to reside upon any land not in the
actual claim and occupation of citizens of the United
States, and upon any land claimed or occupied if with
the permission of the owner.”
A copy of this unratified treaty is appended hereto
(Appendix D) and incorporated by reference.
5a
7. From time to time after 1865, various individuals
and groups of Indians residing in Utah Territory, other
than those who were in Uintah Valley at the time, moved
into the area described in the Executive Order of October
3, 1861, and the unratified Spanish Fork Treaty of 1865,
and set apart by the Act of May 5, 1864, supra. An
Indian agency was established known as the Uintah
Valley Agency, and the area became known as the Uintah
Indian Reservation or the Uintah Valley Reservation. A
substantial number of the said Indians, so located on the
reservation, and their descendants since them have con-
tinued to live upon the reservation, have received indi-
vidual allotments thereon pursuant to the Act of May 27,
1902, as amended (see paragraph 16 hereof), and are
now all known as Uintah or Uintah Ute Indians. Since
1936 they have been a constituent group of the “Ute
Indian Tribe of the Uintah and Ouray Reservation,” an
Indian Reorganization Act (48 Stat. 984) corporation,
composed of Uintah, White River, and Uncompahgre Ute
Indians.
8. On March 2, 1868, a treaty was concluded (and
subsequently ratified and proclaimed, 15 Stat. 619) be-
tween the United States and Indian parties designated
therein as “the Tabequache, Muache, Capote, Weemi-
nuche, Yampa, Grand River, and Uintah Bands of Utes,”
“sometimes referred to thereafter as the “Confederated
Bands of Ute Indians.” Article II of the said treaty set
apart a large reservation, wholly wihin the Territory of
Colorado, for the use and occupation of the Indians
therein named, and for such other friendly Indians as
they might be willing to admit among them. By Article
III the Indians, parties thereto, relinquished all claims
and rights in and to any other territory not included
within the reservation. Article IV provided for the estab-
lishment of two agencies upon the reservation, “one for
the Grand River, Yampa, and Uintah bands, on White
River, and the other for the Tabequache, Muache, Wee-
minuche, and Capote Bands on the Rio de los Pinos. . .”
6a
The said agencies were established and Indians associated
with the White River Agency in northwest Colorado came
in time to be known as White River Utes or the White
River Band of Ute Indians. A copy of the said treaty of
1868 is appended hereto (Appendix X) and incorporated
by reference.
9. By an agreement, approved by the Act of June 15,
1880, (21 Stat. 199), with the “Confederated Bands of
Ute Indians in Colorado,” it was provided that the In-
dians would cede the then remaining portions of the Ute
Reservation in Colorado. The agreement provided for
stated considerations to the Indians and that reservations
be established for them, as follows:
“The Southern Utes agree to remove to and settle
upon the unoccupied agricultural lands on the La
Plata River, in Colorado; and if there should not be
a sufficiency of such lands on the La Plata River and
in its vicinity in Colorado, then upon such other un-
occupied agricultural lands as may be found on the
La Plata River or in its vicinity in New Mexico.
“The Uncompahgre Utes agree to remove to and
settle upon agricultural lands on Grand River, near
the mouth of the Gunnison River, in Colorado, if a
sufficient quantity of agricultural land shall be found
there, if not then upon such other unoccupied agri-
cultural 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 Reser-
vation in Utah.
A copy of the said Agreement of 1880 is appended
hereto (Appendix E) and incorporated by reference.
10. Pursuant to the Agreement and Act of June 15,
1880, supra, the White River Utes were removed to the
Uintah Reservation beginning in about November of 1881.
et ee
7a
Pursuant to the same Act and subsequent legislation they
were given individual allotments on the Uintah Reserva-
tion, (see Paragraph 16 hereof). In general, the White
River Ute Indians so removed to the reservation, and
their descendants since them have continued to live upon
the reservation and are a constituent group of the “Ute
Indian Tribe of the Uintah and Ouray Reservation.”
11. Pursuant to Section 2 of the Act of June 15, 1880,
supra, a commission reported that it had examined the
land on the Grand River near the mouth of the Gunnison,
and had found insufficient suitable land for the Uncom-
pahgre Utes. A tract of land in the valleys of the White
and Green Rivers in Utah (‘south and east of the Uintah
Reservation) was selected by the said commission and
approved by the Secretary of the Interior for the settle-
ment of the Uncompahgre Utes, who removed thereto by
October 1881. The Uncompahgre Reservation in Utah
was established by Executive Order of January 5, 1882,
(I Kappler 901), a copy of which is appended hereto
(Appendix F) and incorporated by reference.
12. An Act of May 24, 1888 (25 Stat. 157), a copy of
which is appended hereto (Appendix G) and incorporated
by reference, provided that a designated portion of the
Uintah Valley Indian Reservation should be restored to
the public domain and sold upon ratification by three-
fourths of the adult-male Indians residing on the reser-
vation. The Act provided further,
“. . . That all moneys arising from the sales of this
land shall belong to said Indians and be paid into the
Treasury of the United States and held or added to
any trust funds of said tribes now there.”
Pursuant to this Act, lands were sold by the United
States and receipts therefrom in the amount of $22,417.93
were credited to the benefit of the Uintah and White
River Bands of Ute Indians. Pursuant to the Act of May
27, 1902, (32 Stat. 245, 263), as amended by the Joint
8a
Resolution of June 19, 1902, (32 Stat. 744) (see para-
graph 17 hereof), an additional $10,000 was appropriated
and paid to the Uintah and White River Utes to cover
claims for lands detached from the reservation pursuant
to the Act of May 24, 1888, supra.
13. An Act of August 15, 1894 (28 Stat. 286, 337) a
copy of pertinent portions of which is appended hereto
(Appendix H) and incorporated by reference, directed the
appointment of a commission (1) to make allotments in
severalty to the Uncompaghre Indians within the reser-
vation referred to in paragraph 11, with a provision that
the Uncompaghres would be required to pay $1.25 per
acre, for the lands so allotted, from out of the proceeds
of the sale of their Colorado lands under the 1880 Agree-
ment and Act; and (2) to “negotiate and treat with the
Indians properly residing upon the Uintah Indian Reser-
vation, 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, . . .” The said commission was
appointed but on January 8, 1895, reported that it had
encountered difficulty in explaining to the Uncompaghres
why they would be required to pay $1.25 per acre for
their allotments, whereas the Indians on the Uintah Res-
ervation would not be required to pay for their allot-
ments. As a consequence, no allotments or agreements for
cession of unallotted lands were made.
14. The Act of January 7, 1897 (30 Stat. 62, 87), the
pertinent provisions of which are appended hereto ( Ap-
pendix 1) and incorporated by reference, directed the
Secretary of the Interior to allot in severalty, to the
Uncompahgre Ute Indians on the Uncompahgre Reserva-
tion, lands in the Uncompahgre Reservation, or the Uin-
tah Reservation, or elsewhere in the State of Utah, and
provided for the disposition of unallotted lands on the
Uncompahgre Reservation under the public land laws.
Pursuant to said Act, and the Act of June 4, 1898, (30
es Ot ee a ee
9a
Stat. 429) (see paragraph 15 hereof), and the Joint Res-
olution of June 19, 1902 (32 Stat. 744) amending the Act
of May 27, 1902 (32 Stat. 245, 263) (see paragraphs 16
and 17 hereof), Uncompahgre Indians were given allot-
ments in severalty upon the Uncompahgre and Uintah
Reservations, including ultimately 63,915.51 acres in al-
lotments on the Unitah Reservation by 1905, and the un-
allotted portions of the Uncompahgre Reservation were
opened for disposition under the public land laws. By the
Act of May 27, 1902 (32 Stat. 245, 263), as amended by
the Joint Resolution of June 19, 1902, (32 Stat. 744),
(see paragraphs 16 and 17 hereof), the United States
appropriated and paid to the Uintah and White River
Utes, $60,064.48 which had been received from the Un-
compahgres for allotments on the Uintah Reservation.
15. An Act of June 4, 1898, (30 Stat. 429) a copy of
which is appended hereto (Appendix J) directed and au-
thorized the President to appoint a commission to make
allotments in severalty, with the consent of the Indians
properly residing on Uintah Indian Reservation, “to the
said Indians and to such of the Uncompahgre Indians as
may not be able to obtain allotments within the Uncom-
pahgre reservation,” and also provided,
“Sec, 2. That said commission shall also obtain, by
the consent of a majority of the adult male Indians
properly residing upon and having an interest in the
said Uintah Indian Reservation, the cession to the
United States of all the lands within said reservation
not allotted or needed for allotment as aforesaid.
The agreement for such cession shal] be reported by
said commission and become operative when ratified
by Act of Congress; and thereupon such ceded lands
shall be held in trust by the United States for the
purpose of sale to citizens thereof: Provided, That the
United States shall pay no sum or amount whatever
for said lands so ceded. Said lands shall be sold in
such manner and in such quantities and for such
10a
prices as may be determined by Congress: Provided,
That the amounts so received shall, in the aggregate
be sufficient to pay said Indians in full the amount
agreed upon for said lands. All sums received from
the sales of said lands shall be placed in the Treasury
of the United States for said Indians, and shall be
exclusively devoted to the use and benefit of the In-
dians having interests in the lands so ceded.
lla
to the public domain as aforesaid, shall have in lieu
of such lease or permit the preferential rights to locate
under the mining laws not to exceed six hundred and
forty acres of contiguous mineral land, except the
Raven Mining Company, which may in lieu of its
lease locate one hundred mining claims of the char-
acter of mineral mentioned in its lease; and the pro-
ceeds of the sale of the lands so restored to the public
domain shall be applied, first, to the reimbursement
16. The Act of May 27, 1902, (32 Stat. 245, 263), a
copy of the pertinent portions of which is appended hereto
(Appendix K) and incorporated by reference, provided
for individual allotments and disposition of unallotted
lands on the Uintah Reservation, as follows:
of the United States for any moneys advanced to
said Indians to carry into effect the foregoing provi-
sions; and the remainder, under the direction of the
Secretary of the Interior, shall be used for the bene-
fit of said Indians. And the sum of seventy thousand
“That the Secretary of the Interior, with the con-
sent thereto of the majority of the adult male Indians
of the Uintah and the White River tribes of Ute In-
dians, 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 unalloted lands within
said reservation shall be restored to the public do-
main: Provided, That persons entering any of 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 In-
dians for a mineral lease; but any person or company
having so obtained such approved mineral lease or
such permit to negotiate with said Indians for a
mineral lease on said reservation, pending such time
and up to thirty days before said lands are restored
and sixty-four dollars and forty-eight cents is hereby
appropriated, out of any moneys in the Treasury not
otherwise appropriated, to be paid to the Uintah and
the White River tribes of Ute Indians, under the
direction of the Secretary of the Interior, 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 within said
reservation as herein provided.
“Said item of seventy thousand and sixty-four dol-
lars and forty-eight cents to be paid to the Uintah
and White River Utes covers claims which these In-
dians have made on account of the allotment of lands
on the Uintah Reservation to Uncompahgre Indians
and for which the Government has received from said
Uncompahgre Indians money aggregating sixty thou-
sand and sixty-four dollars and forty eight cents;
and the remaining ten thousand dollars claimed by
the Indians under an Act of Congress detaching a
sma!] part of the reservation on the east and under
which Act the proceeds of the sale of the lands were
to be applied for the benefit of the Indians.
Pursuant to this Act and amendments thereto, more
fully set out hereafter, allotments in severalty, aggre-
12a
gating 39,349.84 acres by 1905, were made to the Uintah
and White River Indians, and surplus lands (with the
exception of forest reserve and reclamation withdrawals
and certain mineral entries) were restored to the public
domain, and opened for disposition under the public land
laws for the benefit of the Indians. Substantial amounts
of said surplus lands were sold, and $1,184,996.33 in
proceeds from such sales was set up for the benefit of the
Indians under an account headed “Proceeds of Uintah
and White River Ute Lands.” By Order of the Secretary
of the Interior, August 25, 1945 (10 F.R. 12409), a copy
of which is appended hereto (Appendix L) and _ incor-
porated by reference, all undisposed-of opened lands of
the former Uintah Reservation were “restored to tribal
ownership for the use and benefit of the Ute Indian Tribe
of the Uintah and Ouray Reservation in Utah. . .”
17. A Joint Resolution of June 19, 1902 (32 Stat.
744), a copy of the pertinent portions of which is ap-
pended hereto (Appendix M) and incorporated by refer-
ence, supplemented and modified the Act of May 27, 1902,
supra. The Resolution provided that,
“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 nonirrigable
grazing lands therein at one or more places as will
subserve the reasonable requirements of said Indians
for the grazing of livestock.
“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
et cell
13a
set apart as aforesaid in the Uintah Indian Reser-
vation 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 Resolution also provided that the $70,064.48 pre-
viously appropriated by the Act of May 27, 1902, supra,
in satisfaction of claims of the Uintah and White River
Tribes of Ute Indians, as set forth in the Act (see para-
graphs 12, 14, and 16 hereof), should be paid without
awaiting the action of the Indians upon the program of
allotments and disposition of unallotted and unreserved
lands proposed by the Act of May 27, 1902, supra.
18. An Act of March 3, 1903 (32 Stat. 982, 997-8), a
copy of the pertinent provisions of which is appended
hereto (Appendix N) and incorporated by reference, pro-
vided,
“That the Secretary of the Interior shall forth-
with send an inspector to obtain the consent of the
Uintah and White River Ute Indians to an allotment
of their land as directed by the Act of May twenty-
seventh, nineteen hundred and two, and if their con-
sent, as therein provided, can not 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 de-
scribed in said Act:...”
19. The Act of March 3, 1905 § 33 Stat. 1048, 1069-
1070), a copy of the pertinent provisions of which is
appended hereto ( Appendix O) and incorporated by refer-
ence, extended the time for opening the Uintah Indian
Reservation, provided generally for the disposition of un-
reserved and unallotted lands under the general provisions
of the homestead and town-site laws, the proceeds to be
used for the benefit of the Indians, made other changes
l4a
in the provisions of the 1902 Act for the disposal of un-
allotted lands, and provided for reservation of forest
lands and reservoir sites prior to opening, as follows:
“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 reser-
vation.”
20. Pursuant to the authority granted by the Act of
March 3, 1905, supra, approximately 1,010,000 acres of
land within the Uintah Indian Reservation (more fully
described hereafter) were added to and made a part of
the Uintah Forest Reserve, by Proclamation of the Presi-
dent on July 14, 1905, (34 Stat. Pt. III 3116). A copy of
said proclamation is appended hereto (Appendix P) and
incorporated by reference. Quantities of timber were sold
from time to time from off such lands prior to 1920, and,
pursuant to the the Act of March 38, 1905, supra,
$63,024.83 in proceeds therefrom was transferred to
accounts for the benefit of the Indians, as follows:
$62,724.83 to an account “Proceeds of Uintah and White
River Ute Lands,” and $300 to an account “Indian
Moneys Proceeds of Labor, Uintah and Ouray Indians.”
l5a
21. Pursuant to the authority granted by the Act of
March 3, 1905, supra, approximtaely 93,000 acres of land
in the Uintah Indian Reservation were reserved for “res-
ervoir site necessary to conserve the water supply for the
Indians, or for general agricultural development,” by
proclamation of the President on August 3, 1905, (34
Stat. Pt. III 3141). By Proclamation of August 14, 1905,
the reservation was modified by excluding certain lands,
thereby reducing the reservation to approximately 60,160
acres. The said Proclamations are appended hereto ( Ap-
pendix Q) and incorporated by reference. By orders of
May 13, 1907, and November 11, 1909, copies of which
are appended hereto [Appendix R} and incorporated by
reference, 56,868.51 acres of the 60,160 acres theretofore
reserved by the above Proclamations, were withdrawn, by
the Secretary of the Interior pursuant to Section 3 of the
reclamation Act of June 17, 1902 (32 Stat. 388), for
irrigation works for the Strawberry Valley project.
22. By the Act of April 4, 1910, (36 Stat. 269, 285),
copy of the pertinent portions of which is appended
hereto (Appendix S) and incorporated by reference, Con-
gress extinguished “All right, title and interest of the
Indians” in the “lands in the former Uintah Indian Res-
ervation 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, xxx and which were by the Secretary of
the Interior withdrawn for irrigation works under the
provisions of the reclamation Act of June seventeenth,
nineteen hundred and two, in connection with the reser-
voir for the Strawberry Valley project.” The area em-
braced within the above description constitutes 56,868.51
acres (see paragraph 21 hereof), more fully described in
paragraph 26 hereof, and is the subject of the claim for
just compensation in Docket No. 47570. The said Act of
April 4, 1910, supra, appropriated $1.25 per acre for the
lands thus taken to be paid from the reclamation fund
“for the benefit of the Uintah Indians,” subject to the
l6a
same disposition as the proceeds of sales of lands in the
former Uintah Indian Reservation, and payable in five
annual installments. Pursuant to this Act, $71,085.65
was paid into the Treasury under the fund “Proceeds of
Uintah and White River Lands,” in five equal install-
ments of $14,217.13 on February 21, 1912, October 28,
1912, June 27, 1913, September 22, 1914 and February
25 1915, respectively. Under date of October 18, 1948,
the Acting Commissioner of Indian Affairs, in response to
a Call of this Court, reported that rentals or income from
the said lands were collected between August 3, 1905, and
April 4, 1910, and were paid or credited to plaintiffs, as
follows: January, 1908, $10,408; September, 1908, $8,728:
September, 1910, $9,945.88.
23. By an order of October 20, 1910, a copy of which
is appended hereto (Appendix T) and incorporated by
reference, six sections of unallotted lands within the
former Uintah Indian Reservation were withdrawn from
public entry, pursuant to the reclamation Act of June 17,
1902, supra, in connection with the Strawberry Valley
reclamation project. The said lands are Sections 13, 14,
23, 24, 25 and 26, Township 4 South, Range 11 West,
Uintah Special Meridian. Section 25 was within the area
previously added to the Uintah National Forest by the
Proclamation of March 3, 1905, supra (see paragraph 20
hereof). Sections 13, 14, 24, 25 and 26 were within the
60,160 acres set aside for reservoir and other purposes
by the Proclamation of August 3, 1905, supra (see para-
graph 21 hereof), and constitute the balance of that area
not taken by the Act of April 4, 1910, supra, (see para-
graph 22 hereof). Such right, title, and interest as plain-
tiffs may have had to the said Sections 13, 14, 23, 24, and
26 has not been (Tr. 184) extinguished, and no claim with
reference to the said lands is included in either Docket
No. 47569 or 47570. Said Section 25 was added to and
made a part of the Uintah Forest Reserve by the Procla-
mation of July 14, 1905, supra, pursuant to the Act of
March 3, 1905, supra (see paragraphs 19 and 20 hereof),
17a
and the claim for just compensation based upon the said
Section 25 is included in Docket No. 47569.
24. The Act of February 13, 1931, (46 Stat. 1092), a
copy of which is appended hereto (Appendix U) and in-
corporated by reference, provided for payment for 973,777
acres of the 1,010,000 acres of land added to the Uintah
National Forest on July 14, 1905 (see paragraph 20,
supra), in the following terms:
“ _. That there is hereby authorized to be appro-
priated the sum of $1,217,221.25 for payment, at the
rate of $1.25 per acre, to the Uintah, White River,
and Uncompahgre bands of Ute Indians in the State
of Utah for nine hundred and seventy-three thousand
seven hundred and seventy-seven acres of land be-
longing to such Indians being a part of the one mil-
lion and ten thousand acres of land withdrawn from
entry and sale by an Executive Order dated July 14,
1905, and included within the Uintah National For-
est. Such sum shall be in full satisfaction of all
claims of said Indians against the United States with
respect to such lands and shall, when appropriated,
be apportioned by the Secretary of the Interior among
the said bands of Indians in such amounts as in his
opinion the interests of said bands require: Provided,
That as to the balance of said one million and ten
thousand acres, amounting to thirty-six thousand two
hundred and twenty-three acres, which has hereto-
fore been classified as coal lands, the Secretary of
the Interior shall proceed with all convenient speed
to ascertain the value thereof and report his findings
with respect thereto to the Congress not later than
six months after the approval of this Act for such
action as to the Congress shall seem appropriate.
The amounts so apportioned, less the amount of the
attorneys’ fees determined as provided in section 2,
shall be credited to such bands on the books of the
Treasury Department, shall bear interest at the rate
18a
of 4 per centum per annum and shall be disposed of
in the same manner as now or hereinafter provided
by law for the disposition of other funds belonging
to said Indians.”
Pursuant to said Act, $1,217,221.25 was set up on the
books of the United States Treasury under the heading
“Payment to Uintah, White River, and Uncompahgre Ute
Indians of Utah for Lands.” After payment of attorneys
fees, $1,162,221.25 of said amount was transferred to
the “Uintah, White River and Uncompahgre Ute 4%
Fund, Utah”, $1,146,319.50 of said funds was distributed
per capita to the Uintah, White River, and Uncompahgre
Bands of Ute Indians in the years 1935, 1936, and 1938.
It is stipulated that for purposes of case No. 47569 Un-
Te gd the
compahgre Indians received the benefit of 1191
proceeds of the Act of February 13, 1931, supra.
25. The area of the former Uintah Reservation which
was added to the Uintah National Forest by Proclamation
of July 14, 1905, supra, and in payment for which $1.25
per acre was appropriated by the Act of February 13,
1931, supra, being the area for the taking of which just
compensation is sought in No. 47569, constitutes 973,777
acres, and is described as follows:
Beginning at the northeastern most point of the former
Uintah Indian Reservation; thence in a southerly direc-
tion down the eastern boundary of the said Reservation
to the section line between Sections twenty-one (21) and
twenty-eight (28), Township two (2) North, Range one
(1) East, Uintah Meridian; thence westerly to the south-
west corner of Section nineteen (19), Township two (2)
North, Range one (1) West; thence northerly to the
south-east corner of Section thirteen (13), Township two
(2), North, Range two (2) West; thence westerly to the
south-west corner of said section: thence northerly to the
north-west corner of Section twelve (12), said township;
19a
thence westerly to the south-west corner of Section four
(4), said township; thence northerly to the north-west
corner of said section; thence westerly to the north-east
corner of Section four (4), Township two (2) North,
Range three (3) West; thence southerly to the south-east
corner of Section thirty-three (33), said township; thence
westerly to the north-east corner of Township one (1)
North, Range six (6) West; thence southerly to the
south-east corner of Section thirteen (13), said township;
thence westerly to the south-west corner of said section ;
thence northerly to the north-west corner of said section ;
thence westerly to the south-west corner of Section eleven
(11), said township; thence northerly to the north-west
corner of said section; thence westerly to the north-east
corner of Section eight (8), said township; thence south-
erly to the south-east corner of Section seventeen (17),
said township; thence westerly to the north-east corner
of Section twenty-one (21), Township one (1) North,
Range nine (9) West; thence southerly to the south-east
corner of said section; thence westerly to the south-west
corner of Section nineteen (19), said township; thence
southerly along the range line, allowing for the proper
offset on the Base Line, to the north-west corner of Sec-
tion eighteen (18), Township one (1) South, Range nine
(9) West: thence easterly to the north-east corner of
Section sixteen (16), Township one (1) South, Range
eight (8) West; thence southerly to the south-east corner
of Section thirty-three (33), said township; thence west-
erly to the north-east corner of Section four (4), Town-
ship two (2) South, Range ten (10) West ; thence south-
erly to the south-east corner of Section sixteen (16), said
township; thence westerly to the south-west corner of
Section eighteen (18), said township; thence southerly to
the south-east corner of Township two (2) South, Range
eleven (11) West; thence westerly to the south-west
corner of Section thirty-three (33), said township; thence
northerly to the south-east corner of Section twenty (20),
20a
said township, thence westerly to the south-west corner
of said section, thence northerly to the south-east corner
of Section seven (7), said township; thence westerly to
to the south-west corner of said section; thence northerly
to the north-west corner of said township; thence westerly
to the north-east corner of fractional Section four (4),
Township two (2) South, Range twelve (12) West; thence
southerly to the south-east corner of Section thirty-three
(33), said township; thence easterly to the north-east
corner of Section three (3), Township three (3) South,
Range twelve (12) West; thence southerly to the south-
east corner of said section; thence easterly to the north-
east corner of Section eleven (11), said township; thence
southerly to the south-east corner of said section; thence
easterly to the north-east corner of Section thirteen (13),
said township; thence southerly to the south-east corner
of Township four (4) South, Range twelve (12) West;
thence easterly to the south-west corner of Section eleven
(11) West; thence northerly to the north-west corner of
said section; thence easterly to the south-west corner of
Section twenty-five (25), said township; thence northerly
to the north-west corner of said section; thence easterly
to the north-east corner of Section thirty (30), Township
four (4) South, Range ten (10) West; thence southerly
to the south-east corner of Section thirty-one (31), said
township; thence easterly to the south-west corner of
Township four (4) South, Range nine (9) West; thence
northerly to the north-west corner of S.ciion thirty (30),
said township; thence easterly to the 10.."-east corner of
Section twenty-five (25), said townhsip; thence southerly
to the south-east corner of said township; thence easterly
to the north-east corner of Section five (5), Township
five (5) South, Range eight (8) West: thence southerly
to the south-east corner of Section seventeen (17), said
township; thence westerly to the south-west corner of
Section eighteen (18), said township; thence southerly to
the south-east corner of Section twenty-four (24), Town-
ship five (5) South, Range nine (9) West; thence west-
2la
erly to the north-east corner of Section twenty-eight (28),
said township; thence southerly to the south-east corner
of said section; thence westerly to the south-west corner
of Section twenty-nine (29), said township; thence south-
erly to the north-west corner of Section twenty-nine (29),
Township six (6) South, Range nine (9) West; thence
easterly to the south-west corner of Section twenty-one
(21), Township six (6) South, Range eight (8) West;
thence northerly to the north-west corner of Section four
(4), said township; thence easterly to the eastern bound-
ary of the Uintah Indian Reservation; and thence along
the said Indian Reservation boundary, first in general
southwesterly, then a westerly, then a northwesterly and
north, and then an easterly direction back to the point
of beginning;
Excepting therefrom approximately 36,223 acres, classi-
fied as coal lands, and more particularly described as
follows:
Township 1 south, range 8 west, Uintah meridian,
Utah: North half, and the north half of the south half of
section 16; section 17; lots 2, 3, and 4, and the southeast
quarter of the northwest quarter, and the east half of the
southwest quarter, and the northeast quarter of the north-
east quarter, and the south half of the northeast quarter,
and the southeast quarter of section 18; lot 1, and the
northeast quarter of the northwest quarter, and the north
half of the northeast quarter of section 19.
Township 1 south, range 9 west, Uintah meridian,
Utah; Southeast quarter of the northeast quarter, and the
south half of section 13; south half of the south half of
section 14; south half of the south half of section 15; the
northwest quarter of the southwest quarter, and the south
half of the south half of section 16; southwest quarter of
the northeast quarter, and the south half of the north-
west quarter, and the south half of section 17; section 18;
lots 1, 3, and 4, and the northeast quarter of the north-
west quarter, and the east half of the southwest quarter,
22a
and the north half of the northeast quarter, and the
southeast quarter of section 19; section 20; section 21;
section 22; section 23; north half and the southwest quar-
ter, and the northwest quarter of the southeast quarter
of section 24; the northwest quarter of the northwest
quarter of section 25; the north half of section 26; north
half of section 27; the north half of section 28; the north
half and the east half of the southwest quarter and the
north half of the southeast quarter of section 29; lots 1,
2, and 3, and the east half of the northwest quarter, and
the northeast quarter of section 30.
Township 1 south, range 10 west, Uintah meridian,
Utah: The south half of the south half of section 10: the
south half of the south half of section 11; the south half
of the south half of section 12; section 13; section 14;
section 15; section 16; the northeast quarter and south
half of the northwest quarter, and the south half of sec-
tion 17; the southeast quarter of the northeast quarter, and
the southeast quarter of the southwest quarter, and the
southeast quarter of section 18; section 19; section 20:
section 21; section 22; section 23; section 24: the north
half and the north half of the south half of section 25;
section 26; section 27; section 28; section 29: the east
half and lots 1, 2, 3, and 4, and the east half of the west
half of section 30; lots 1, 2, 3, and 4, and the east half of
the west half and the east half of section 31; section 32;
the north half and the north half of the southwest quar-
ter of section 33; the northeast quarter of the northeast
quarter, and the west half of the northeast quarter, and
the northwest quarter of section 34; the north half of the
north half of section 35.
Township 1 south, range 11 west, Uintah meridian,
Utah: Lots 1, 2, 3, and 4, and the east half of the west
half, and the southeast quarter of section 18: section 19;
the northwest quarter of the northwest quarter and the
south half of the northwest quarter and the southwest
quarter and the west half of the southeast quarter of
23a
section 20; the east half and the the east half of the north-
west quarter and the northeast quarter of the southwest
quarer of section 25; the west half of the southwest quar-
ter and the southeast quarter of the southwest quarter
and the southwest quarter of the southeast quarter of
section 28; section 29; section 30; the northeast quarter,
and lots 1, 2, 3, and 4, and the east half of the west half,
and the southeast quarter of section 31; section 32; sec-
tion 33; section 34; the west half of section 35; the north-
east quarter and the east half of the southeast quarter
of section 36.
Township 1 south, range 12 west, Uintah meridian,
Utah: Lots 1, 2, 3, and 4, and the south half of the south
half of section 12; section 13; section 24; the northeast
quarter, the northwest quarter, and the southeast quarter
of section 25.
Township 2 south, range 10 west, Uintah meridian,
Utah: Section 4, section 5; section 6; section 7; section 8;
section 9.
Township 2 south, range 11 west, Uintah meridian,
Utah: Lots 3 and 4 of section 2; lots 1, 2, 3, and 4, and
the south half of the north half and the south half of
section 3; lots 1, 2, 3, and 4, and the south half of the
north half and the south half of section 4.
26. That area of the former Uintah Reservation re-
served for reservoir and other purposes by Proclamations
of August 3 and August 4, 1905 supra, and withdrawn
for the Strawberry Valley reclamation project by orders
of May 13, 1907, and November 12, 1909, as to which all
right, title, and interest of the Indians was extinguished
by the Act of April 4, 1910, supra, being the area for the
taking of which just compensation is sought in No. 47570,
constitutes 56,868.51 acres and is described as follows:
Uintah Special Meridian, Section 18, 19, 29, 30, 31 and
32, Township 2 South, Range 11 West;
24a
Sections 1 to 36 inclusive, Township 3 South, Range 11
West;
Sections 1 to 12, inclusive, 15 to 22, inclusive, and
Sections 27 to 32, inclusive, Township 4 South, Range 11
West ;
Sections 1, 2, 3, 10, 11, 12, 18, 14, 15, 22, 23, 24, 25,
26, 27, 34, 35, 36, Township 2 South, Range 12 West;
Sections 1, 2, 12, Township 3, South, Range 12 West.
/s/ ERNEST L. WILKINSON
ERNEST L. WILKINSON
Attorney of Record for Plaintiffs
‘s/ PENNY W. Morton
Assistant Attorney General
s/ FLoyp L. FRANCE
Attorney for the United States
25a
APPENDIX B
UNITED STATES
DEPARTMENT OF AGRICULTURE
FOREST SERVICE
324 25th Street
Ogden, Utah 84401
APR 8 1977
Honorable Scott M. Matheson
Governor of Utah
State Capitol
Salt Lake City, Utah 84114
Dear Governor Matheson:
We have reviewed the Ute Indian Tribe Resolution, 76-
125, and Discussion Draft Agreement Between the State
of Utah and the Ute Tribe on Civil and Criminal Juris-
diction dated March 25, 1977. There are certain sections
in the Resolution and the draft Agreement which would
affect the management of portions of the Ashley, Uinta,
and Wasatch National Forests. We appreciate your con-
sideration of our concerns relating to these sections.
The Indian Resolution essentially proposes, in items 10
and 11, to give certain property and jurisdictional rights
vested in the State of Utah and the United States within
the original exterior boundary of the Uintah and Ouray
Reservation to the Ute Indian Tribe. It is proposed in
item 11 that the Ute Indian Tribe be given hunting and
fishing rights without regard to State laws and in item
10 full control of camping and recreation on 989,000
acres of National Forest land which they have related to
the Central Utah Project.
The National Forest lands included within the original
exterior boundary of the Uintah and Ouray Reservation
provide a wide range of goods and services to the public.
26a
Recreation use of this area, which includes 6 reservoirs
and 31 lakes which will be stabilized, is and will be heavy.
Much of the High Uintas Primitive Area is also encom-
passed within the boundary. Over 400,000 visitor days of
use were recorded during 1975. Some of the recreation
areas within this boundary now or to be constructed are
the Strawberry, Current Creek, Whiterocks, and Upper
Stillwater Reservoirs.
Under Definitions, item (d), non-trust lands; item (e),
original exterior boundaries, and the comments under
item 3, Present Conflict, we believe that the original
Reservation boundaries were disestablished and the pres-
ent Reservation boundaries include only the trust lands.
The Act of March 3, 1905 (33 Stat. 873, 1070), author-
ized the establishment of the Uinta National Forest,
which was accomplished by Presidential proclamation on
July 14, 1905. The Presidential proclamation removed
the lands from the Uintah and Ouray Reservation and
placed them within the Uinta Forest Reserve to be sub-
ject to laws, rules, and regulations governing Forest
Reserves. On February 13, 1931, Congress appropriated
the sum of $1,217,221.25 to be paid to the Ute Indian
Tribe for full satisfaction for lands taken in 1905, except
for 36,223 acres which had been classified as coal lands.
Public Law 84-717 under the Act of July 14, 1956, pro-
vided for settlement of the claims on the remaining
36,223 acres. Pursuant to formal stipulation of the par-
ties, a consolidated judgment was entered by the Court
of Claims for this case, No. 47569, and four vested cases
Nos. 87568, 47510, 47511, and 47572, in favor of the
plaintiffs and against the defendants in the amount of
$3,250,000 in full settlement of all claims arising out
of the five cases. Through these actions jurisdiction and
tribal claims to the lands within the National Forest were
disposed of and all rights, title, and interests to the lands
were acquired by the United States. Since all of the
Indian rights to these lands were acquired by the United
States, there is no basis for considering them as part of
27a
the Reservation. The boundaries of the Reservation
would be in common with the exterior National Forest
boundaries established by the 1905 proclamation and
would not extend to the boundaries as established by
Executive Order of October 3, 1861.
Item 3, Present Conflict, would provide the Tribe certain
jurisdictional protections on non-trust lands where vital
Indian interests are at stake. We believe the Agreement
is referring to the hunting and fishing rights of tribal
members as indicated under items 4 and 5. Item 4 states
that the Ute Indian Tribe, “shall have the right to hunt,
fish, boat, and trap within the original exterior bound-
aries of the Uintah and Ouray Reservation” and, “In
addition, the Tribe agrees to regulate hunting, fishing,
and trapping practices of the members of the Tribe so as
to insure the maintenance of a proper biological balance
between populations and available habitat. .. .” It fur-
ther provides, “that all leases of such public lands entered
into after the date of this Agreement shall recognize the
hunting and fishing rights of tribal members free from
any such consent or permission by the lessee.”
The only reference we have been able to find concerning
rights of the Indians to hunt and fish is in the unratified
treaty of June 8, 1865, and October 30, 1865, which
included the Utah Yampah Ute, Pah-vant, Sanpete Ute,
Trim-p-nogs, and Cum-nm-bah Bands of the Utah In-
dians. Article 1 of this treaty indicates that the Indians
would surrender and relinquish to the United States all
their possessory rights of occupancy in the lands claimed
and occupied by them within the areas of the thirty-eight
and forty-first parallel in Utah. This area includes the
width of the State and extends southward from approxi-
mately the south boundary of Wyoming to the thirty-eight
parallel, which is approximately twenty miles north of
Cedar City. Article IV of this unratified treaty states,
“The right of taking fish at usual and accustomed grounds
and stations is further reserved to said Indians in com-
28a
mon with all white citizens of the Territory and of erect-
ing temporary houses for the purpose of curing them,
together with the privilege of hunting and gathering roots
and berries on open and unclaimed lands.”
This unratified treaty would indicate that the fishing and
hunting rights of the Ute Tribe could include approxi-
mately 75 percent of the State of Utah. If the State
recognizes the Tribe’s rights to hunt and fish within the
1861 reservation boundaries on the 989,000 acres on which
all rights were acquired from the Indian Tribe, then it is
possible the Tribe could assert an even stronger claim to
hunting and fishing rights to the lands described in the
1865 unratified treaty.
Item 4 provides that all leases of public land entered into
after the date of the Agreement shall recognize the hunt-
ing and fishing rights of tribal members free from any
consent or permission by the lessee. Item 6 provides,
“The parties recognize their mutual interest in protecting
environmental values from damage that might result from
uncontrolled growth of public recreational! facilities within
the original exterior boundaries of the Reservation. The
parties therefore agree that the United States shall con-
sult with the State and the Tribe on all plans, construc-
tion, developments, and operations of facilities within the
original exterior boundaries of the Reservation pertain-
ing to camping, obating, fishing, and other forms of pub-
lie recreation.” These items should either be deleted from
the Agreement or modified to pertain only to tribal lands.
The United States through the Secretary of Agriculture
and the Forest Service is responsible for the administra-
tion of the National Forest lands, which includes the
development of recreation facilities. These rights cannot
be subordinated or diminished through agreement between
the State and the Ute Indian Tribe. The only way these
rights can be transferred to the Indian Tribe is by an
Act of Congress or adjudication in a Federal Court.
29a
We appreicate the opportunity to provide this informa-
tion. We want to fully participate in any further de-
liberations on these issues.
Sincerely,
/s/ VERN HAMRE
VERN HAMRE
Regional Forester
3la
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Plaintiff and Appellee,
APPENDIX D
Case No. 910532-CA
ROOSEVELT CITY,
IN THE UTAH COURT OF APPEALS
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Defendant and Appellant.
Vv
ROGER ROMAN GARDNER,
OPINION
(Filed November 9, 1992)
Before Judges Billings, Greenwood, and Orme.
BILLINGS, Associate Presiding Judge:
Joel D. Berrett, Roosevelt, for Appellant
Craig Bunnell, Roosevelt, for Appellee
Eighth Circuit, Roosevelt Department
The Honorable A. Lynn Payne
Attorneys:
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Defendant Roger Roman Gardner pleaded guilty in
Eighth Cireuit Court to criminal mischief, a class B
misdemeanor, in violation of Utah Code Ann. § 76-6-106
(Supp. 1992), and unlawful possession and consumption
of alcohol, a class B misdemeanor, in violation of Utah
Code Ann. § 32A-12-209 (Supp. 1992), following the trial
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46a
dictional grounds. Defendant appeals, claiming the trial
court lacked jurisdiction because he is an Indian and
because Roosevelt, Utah, where the crimes took place, is
in Indian country. We affirm.
Federal law provides for exclusive federal jurisdiction
over Indians who commit crimes in Indian country, with
some exceptions. See 18 U.S.C. $$ 1152-1153 (1988);
State v. Perank, 191 Utah Adv. Rep. 5, 5 (Utah 1992).
Defendant’s jurisdictional challenge thus presents two
issues: (1) whether defendant is an Indian,' and (2)
whether Roosevelt, Utah is in Indian country.
The tah Supreme Court recently held that a 1902
congressional act, as amended by 1903, 1904 and 1905
acts, restored the unallotted, unreserved lands of the
Uintah-Ouray Indian Reservation to the public domain,
diminishing the reservation boundaries. See Perank, 191
Utah Adv. Rep. at 18. In so doing, the supreme court
disagreed with the decision of the United States Court
of Appeals for the Tenth Circuit in Ute Indian Tribe v.
Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc), cert.
denied, 479 U.S. 994, 107 S. Ct. 596 (1986). See Perank,
191 Utah Adv. Rep. at 22 (Zimmerman, J., dissenting).
The supreme court’s decision in Perank held that
Myton, Utah lies outside the boundaries of the reserva-
tion and is not within Indian country. See id. at 18. In
State v. Coando, 191 Utah Adv. Rep. 25 (Utah 1992),
decided the same day as Perank, the supreme court stated
that, under the reasoning of Perank, Roosevelt, Utah also
lies outside Indian country. See Coando, 191 Utah Adv.
Rep. at 26.
' We do not address whether defendant is an Indian for purposes
of federal jurisdiction because we conclude defendant did not com-
mit the crimes in Indian country.
* We note that the issue we decide today is currently the subject
of injunctive proceedings in the United States District Court for
the District of Utah and a petition for certiorari in the United
States Supreme Court. See Minute Entry in State v. Perank,
No. 860243 (Utah August 4, 1992).
47a
Thus, because defendant committed the crimes in
Roosevelt, Utah, which is not in Indian country under
controlling Utah law, the circuit court had subject mat-
ter jurisdiction. We, therefore, affirm defendant's con-
victions.
s Judith M. Billings
JubITH M. BILLINGS
Associate Presiding Judge
WE CONCUR:
s’ Pamela T. Greenwood
PAMELA T. GREENWOOD
Judge
s Gregory K. Orme
GREGORY K. ORME
Judge
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