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

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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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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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