UTE Indian Tribe v. Utah , 773 F.2d 1087 ( 1985 )

ON REHEARING EN BANC

WILLIAM E. DOYLE, Circuit Judge.

The above entitled matter was considered by the court en banc on the motion for rehearing. The result was that the majority of the Judges decided that there should be reconsideration and a different result. It will be recalled that in the dissenting opinion which was written previously, this writer agreed with the position which has been taken by District Judge Jenkins (Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072 (D.Utah 1981)), who generally ruled that the Uintah Reservation and its lands remain the property of the tribes that are involved. As to the questions whether the acts dealing with the Uintah Forest and the Uncompahgre Resérvation mean that the Indians lost title to these lands, the view of this writer is contrary to the view of the trial court.

I.

THE UINTAH ISSUE

With respect to the case against disestablishment, it was even clearer in connection with the Uintah Indian Reservation than the other areas. The district court pointed out in its opinion that the Act of May 5, 1864, 13 Stat. 64, which established the Uintah Reservation provided that “the lands within the Uintah Reservation should be ‘set apart for the permanent settlement and exclusive occupation of the Indians.’ ” 521 F.Supp. 1072 at 1111, quoting H.R.Rep. No. 660, 53d Cong., 2d Sess., 1-3 (1894). The Uintah Reservation was thus clearly established as a permanent home for the Ute Tribe. Considering that Congress’ intent to establish and set aside the Uintah Reservation was clearly expressed, disestablishment of that reservation would require an equally clear expression of congressional intent to change the status of the reservation.

Recently the Supreme Court decision in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), clarified that only in two types of situations should courts find that Congress intended to disestablish an Indian- reservation. The first of these is when Congress uses explicit language of cession in an opening act and also gives indication of an unconditional commitment to compensate Indians for their opened lands. 104 S.Ct. at 1166. The other situation is “[wjhen events surrounding the passage of a surplus land act — particularly the manner in which the transaction was negotiated with the tribes involved and the tenor of legislative reports presented to Congress — unequivocally reveal a widely-held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation____” Id. But neither the intent behind the Indian Appropriations Act of 1905, ch. 1479, 33 Stat. 1048 [hereinafter cited as 1905 Act], that allegedly diminished the Uintah Reservation, nor the language used in that Act, is sufficiently clear to support a finding that the Act disestablished or diminished the Uintah Reservation. Indeed the language used in that Act is sufficiently clear to support a finding that the Act did not disestablish or diminish the Uintah Reservation. Neither the language used in that Act nor any other aspect of it gives clear support for a finding that the Act disestablished or diminished the Uintah Reservation. Nor does the legislative history support the allegation approached.

The original opinion, 716 F.2d 1298, in this case inferred, from a series of laws passed between 1902 and 1905, that Congress intended to diminish the size of the Uintah Reservation. The opinion stated that Congress’ intent in passing the Indian Appropriations Act of 1902, ch. 888, 32 Stat. 245 [hereinafter cited as 1902 Act], was to disestablish the Reservation and that its original intent carried through to the 1905 Act that actually opened the Reservation to non-Indian settlers. The object of this was certainly different from the conclusion that was set forth. But we now conclude that no intention to alter the Reservation’s boundaries was present. Actually the intent was to open the Reservation to non-Indian settlers and this couldn’t effect the result that was suggested.

The district court’s opinion was indeed well researched on this question, and others as well. The 1902 Act would have returned all surplus Uintah Reservation lands to the public domain if the Ute Tribe’s consent could be obtained. That consent was never forthcoming. The Tribe refused all requests to give up their lands. As a result of the impasse, Congress passed additional legislation in 1903 and 1904 extending the time set for the opening of the Reservation. See Indian Appropriations Act of 1903, ch. 994, 32 Stat. 982, 997-98; Act of Apr. 21, 1904, ch. 1402, 33 Stat. 189, 207-08. Finally, Congress passed the 1905 Act, opening the Reservation for non-Indian settlement under the homestead and townsite laws. This measure, which actually effected the opening of the Reservation, did not contain the public domain language used in the 1902 Act.

It is not possible to find that the series of congressional enactments summarized above revealed a “baseline purpose of disestablishment,” 716 F.2d at 1312, that carried through into the 1905 Act. To do so is inconsistent with the Supreme Court’s longstanding directive, reiterated in Solem, that in the absence of “substantial and compelling evidence of a congressional intention to diminish Indian lands,” the courts’ “traditional solicitude for the Indian tribes” must compel a finding that “the old reservation boundaries survived the opening.” 104 S.Ct. at 1167. It is impossible to draw disestablishment conclusions or inferences from these congressional statements.

An examination of the 1902-1905 series of Congressional enactments with the proper “solicitude for the Indian tribes,” Solem, 104 S.Ct. at 1167, provides inferences against diminishment. The district court’s initial decision that the Uintah Reservation was not disestablished or diminished is correct. The strongest inference that is to be drawn from Congress’ actions is that Congress wished surplus Uintah Reservation lands to be put to productive use. With respect to the Reservation’s boundaries, the only inference that can be drawn is that Congress had no intention for them to. change. Congress’ use of “homestead and township acts” language in the 1905 Act, as contrasted with its use of “public domain” language in the 1902 Act, is evidence of a clear retreat from any desire to effect a wholesale diminishment of the Reservation.¹

The original opinion’s conclusion that the Uintah Reservation was diminished by the 1905 Act is not correct. Indeed we accept the district court’s view that the Reservation’s boundaries were not changed by the 1905 Act.

II.

THE FOREST RESERVE PROBLEM

We will next discuss the status of the 1,010,000 acres of the Uintah Forest Reserve, which was set aside under the authority of the 1905 Act. The Act provided:

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, ... such portion of the lands within the Uintah Indian Reservation as he considers necessary.

33 Stat. at 1070.

There is nothing in the 1905 Act or in its legislative history which establishes a “total surrender of tribal interests” or a “widely-held contemporaneous understanding that the affected reservation would shrink,” as required by Solem, 104 S.Ct. at 1166. The act merely authorized President Theodore Roosevelt to set apart reservation lands as a forest reserve. This he did. Proclamation of July 14, 1905, 34 Stat. 3113. Indeed the 1905 Act specifically reserved the Utes’ timber interests in the lands by authorizing forest officials to sell as much timber as could be safely sold for fifteen years and to pay the money to the Utes. 33 Stat. at 1070.

There is clear evidence that Congress did not intend to extinguish the forest lands of the Uintah Reservation. That evidence is shown when the 1905 Act is contrasted with the Act of Apr. 4, 1910, eh. 140, 36 Stat. 269. The latter clearly extinguished a portion of the reservation lands for reclamation purposes. The reclamation lands were originally set aside under the authority of the 1905 Act. This was in the same manner as the forest lands which had been set aside. Yet five years later Congress showed that it could be explicit when it dealt with the reclamation lands. It said: “All right, title and interest of the Indians in the said lands are hereby extinguished, and control thereof shall pass to the owners of the lands irrigated from said project----” 36 Stat. at 285. In contrast, Congress never enacted a subsequent statute extinguishing the Utes’ interests in the lands withdrawn for the forest reserve.

Also, when Congress compensated the Utes for 973,779 acres of the forest lands in 1931, it recognized the lands as “belonging to such Indians.” Act of Feb. 13, 1931, ch. 124, 46 Stat. 1092.

Despite the fact that neither the language of the 1905 Act nor its legislative history evidences congressional intent to remove the forest lands from the Uintah Reservation, the district court and this court in its original opinion concluded that the reservation had been diminished because withdrawal of lands for a forest reserve was inconsistent with continued reservation status. 521 F.Supp. at 1138; 716 F.2d at 1314. In reaching this decision, both courts stressed that the administrative authority over the forest lands was transferred from the Department of the Interior to the Department of Agriculture. Such a change in the administration of the lands, however, does not rise to the level of a subsequent event establishing clear congressional purpose to diminish, as required by Solem, 104 S.Ct. at 1166-67.²

We therefore conclude that the Uintah Reservation was not diminished by the withdrawal of the national forest lands.

Ill

THE UNCOMPAHGRE RESERVATION

Following rehearing it became necessary to consider the status of the Uncompahgre Reservation in Utah. This is said to be the least popular of the group. The position which is taken by the district court and by this court in the earlier opinion was that the entire Uncompahgre Reservation had been disestablished. However, there is a lack of evidence of this fact unless there can be disestablishment by failure to develop the area. The State of Utah supports the district court’s original decision. Under the Solem standards neither the Un-compahgre Reservation nor the Uintah Reservation has been disestablished or diminished by any of the congressional enactments in question. It must be mentioned, however, that this is, for the most part, a very dry area whose highest value, in addition to agriculture, is its mineral deposits, such as gilsonite, etc. On this account, there is some interest on the part of development parties.

It is interesting to note that there exists no clear expression of congressional intent to disestablish the affected areas, including this one, as contemplated by the court in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984).

In Solem it was found that it was difficult to disestablish an Indian reservation. It went on to say Congress must “clearly evince” an intent to change boundaries before diminishment will be found. 104 S.Ct. at 1166. The Solem test for determining whether tracts remain a reservation emphasizes this factor. The Solem court also stated that subsequent events such as demographic transformations of the area should be examined and regarded. However, subsequent events should be assessed to a “lesser extent” than the statutory language and surrounding circumstances. Id. at 1167.

We now turn to apply these principles to the 1894 and 1897 Acts.

In 1894, bills were introduced providing “for opening the Uncompahgre and Uintah Reservations.” H.R. 4511, 6557, 53d Cong. 2d Sess. (1894); see S.Rep. No. 450, 53d Cong., 2d Sess., 4027 (1894). It is to be noted that these bills were never enacted. However, the Indian Appropriations Act for 1894 included H.R. 6557, with changes. We first consider the 1894 Act’s operative language, set forth below.³

The 1897 statute which ultimately opened the Uncompahgre Reservation provided:

The Secretary of the Interior is hereby directed to allot agricultural lands in sev-eralty to the Uncompahgre Ute Indians now located upon or belonging to the Uncompahgre Indian Reservation in the State of Utah, said allotments to be upon the Uncomgahgre and Uintah reservations or elsewhere in said State. And all the lands of said Uncompahgre Reservation not theretofore allotted in severalty to said Uncompahgre Utes shall, on and after the first day of April, eighteen hundred and ninety-eight, be open for location and entry under all the land laws of the United States; excepting, however, therefrom all lands containing gilsonite, asphalt, elaterite, or other like substances.

We mentioned above that there is some interest due to the presence of minerals and it should be mentioned here that the land contains gilsonite and other minerals and unquestionably there is more interest in these features than in limited agricultural activites that have operated in the area.

The question as to whether the statutory language of the 1894 and 1897 Acts disestablished the Uncompahgre Reservation calls for an interpretation based on historical research. This court’s previous opinion concluded that the statutory language of the 1894 Act established a “baseline” purpose to disestablish which the 1897 Act executed. 716 F.2d at 1306. The opinion read the term “restore to public domain” in the 1894 Act as an indication of a clear congressional intent to remove the Uncompahgre land from the Indians. Our conclusion is that the phrase “restore to the public domain” is not the same as a congressional state of mind to disestablish. In other words, it doesn’t disturb the ownership of the land by the tribal group. There are several competing meanings that could be implied from the phrase “restore to the public domain.” But the most important one is that it permits the invasion of an area and purchase of land and general utilization. It is said that it is equally plausible that the phrase means that Indian lands would be available for settlement, but that the boundaries remain unchanged. The original expression “return to the public domain” does not reliably establish the clear and unequivocal evidence of Congress’ intent to change boundaries. So-lem, 104 S.Ct. at 1166.

Our reading of the statutory language of the 1894 and 1897 Acts indicates that there is no explicit language of cession, termination, or any other reference to “the present and total surrender of all tribal interests.” Id. The provisions of these acts are in sharp contrast to the statutory language in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977) where “termination” was found. See also Mattz v. Arnett, 412 U.S. 481, 504, 93 S.Ct. 2245, 2257, 37 L.Ed.2d 92 (1973). Secondly, we have not found any language which promises the Indians any certain sum for their lands as in Rosebud Sioux Tribe v. Kneip, 430 U.S. at 591, 97 S.Ct. at 1365.

As in Solem, 104 S.Ct. at 1169, the references in the 1894 Act to being in “the public domain” and being “open to entry” do not present “an explicit expression of congressional intent to diminish” the Un-compahgre Reservation. We fully agree with this viewpoint.

The circumstances surrounding the passage of the Acts also fail to establish a clear congressional purpose to disestablish the Reservation. Our reading of the Act’s objectives is that they merely opened lands to public entry and failed to extinguish the Reservation.

Our conclusions are first, that the opening of the Uncompahgre Reservation was never formally or informally negotiated between the federal government and the Tribe of Indians. There was never an understanding on the part of the Tribe that they would lose their reservation as a result of the 1897 Act. The Uncompahgres never bargained for the termination of the exterior boundary of their reservation. For example, in Rosebud Sioux Tribe v. Kneip, 430 U.S. at 584, 97 S.Ct. at 1361 and DeCoteau v. District County Court, 420 U.S. 425, 446, 95 S.Ct. 1082, 1094, 43 L.Ed.2d 300 (1975), the Court found formal negotiation between the tribes and the federal government which resulted in termination. Unlike these earlier cases, the Un-compahgre Indians had no understanding that they were losing their reservation in exchange for a specific benefit.

It is true that other evidence as to “surrounding events” is ambiguous. The Cities and Counties cite newspaper articles from the period which refer to the Uncompahgre Reservation as the old or former Reservation. No particular significance can be given to these articles since they were written from the white settlers’ points of view. But these statements do not enjoy any official significance. DeCoteau v. District County Court, 420 U.S. at 443, n. 27, 95 S.Ct. at 1092, n. 27.

We agree with the Tribe that the restoration of vacant and undisposed lands in 1948 is suggestive of continued reservation status. See Mattz v. Arnett, 412 U.S. 481, 505-06, n. 25, 93 S.Ct. 2245, 2258 n. 25, 37 L.Ed.2d 92. The conclusion to be drawn is that the surrounding events concerning the 1894 and 1897 Acts are ambiguous. They provide no substantial and compelling evidence of a congressional intention to diminish Indian lands. Solem, 104 S.Ct. at 1167. The inconclusive nature of this evidence leads us to the conclusion of Solem: “We are bound by our traditional solicitude for the Indian tribes to rule that diminishment did not take place and that the old reservation boundaries survived the opening.” Id. (citations omitted). Therefore, we hold that the Uncompahgre Reservation has not been disestablished or diminished.

In summary, we conclude that there are no explicit references to boundary changes and disestablishment in the language of the 1894 or 1897 Acts. We also conclude that there is no evidence of a widely-held understanding on the part of the affected Tribe that the Uncompahgre Reservation would be disestablished.

IV.

CONCLUSION

In closing, we find no evidence, either explicit or implicit, in any congressional enactment that Congress intended to diminish or disestablish the Uncompahgre and Uintah Reservations. We reverse the district court holding insofar as it found the Uncompahgre Reservation disestablished and the Uintah Reservation diminished by the withdrawal of the forest lands. In all other respects we affirm the district court’s decision.

1 . The brief submitted by the Cities and Counties suggests that the 1905 Act necessarily diminished the Uintah Reservation because BIA personnel and local residents immediately thereafter began referring to the “former” Reservation. These contemporaneous interpretations of the Act are-entitled to little weight. Congress’ authority over reservations is plenary, Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299 (1903), and it is Congress’ intent that must govern our decision. The interpretation, wishful or not, given to the 1905 Act by whites living in the Reservation area cannot overcome the lack of compelling evidence that Congress intended to diminish the Uintah Reservation.

2 . The applicable forest service laws mentioned in the 1905 Act are limited by 16 U.S.C. § 480, which provides that criminal and civil jurisdiction is not affected by the existence of a national forest. Thus, Indian jurisdiction does extend to Indians on forest lands.

3 . Sec. 20. That the President of the United States is hereby authorized and directed to appoint a commission of three persons to allot in severalty to the Uncompahgre Indians within their reservation, in the Territory of Utah, agricultural and grazing lands according to the treaty of eighteen hundred and eighty, as follows: Allotments in severalty of said lands shall be made as follows: To each head of a family one-quarter of a section, with an additional quantity of grazing land not exceeding one-quarter of a section; to each single person over eighteen years of age, one-eighth of a section, with an additional quantity of grazing land not . exceeding one-eighth of a section; to each orphan child under eighteen years of age, one-eighth of a section, with an additional quantity of grazing land not exceeding one-eighth of a section; to each other person under eighteen years of age, born prior to such allotment, one-eighth of a section, with a like quantity of grazing land: Provided, That, with the consent of said commission, any adult Indian may select a less quantity of land, if more desirable on account of location: And Provided, That the said Indians shall pay one dollar and twenty-five cents per acre for said lands from the fund now in the United States Treasury realized from the sale of their lands in Colorado as provided by their contract with the Government. All necessary surveys, if any, to enable said commission to complete the allotments shall be made under the direction of the General Land Office. Said commissioners shall, as soon as practicable after their appointment, report to the Secretary of the Interior what portions of said reservation are unsuited or will not be required for allotments, and thereupon such portions so reported shall, by proclamation, be restored to the public domain and made subject to entry as hereinafter provided.

Sec. 21. That the remainder of the lands on said reservation, shall, upon the approval of the allotments by the Secretary of the Interior, be immediately open to entry under the homestead and mineral laws of the United States: Provided; That no person shall be entitled to locate more than two claims, neither to exceed ten acres, on any lands containing asphaltum, gil-sonite, or like substances. Provided, That after three years actual and continuous residence upon agricultural lands from date of settlement the settler may, upon full payment of one dollar and fifty cents per acre, receive patent for the tract entered. If not commuted at the end of three years the settler shall pay at the time of making final proof the sum of one dollar and fifty cents per acre. •

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