OCTOBER TERM, 1993
Syllabus
HAGEN
v. UTAH
CERTIORARI TO THE SUPREME COURT OF UTAH No.92-6281. Argued
November 2, 1993-Decided February 23,1994
Petitioner, an Indian, was charged in Utah state court with
distribution of a controlled substance in the town of Myton, which
lies within the original boundaries of the Uintah Indian
Reservation on land that was opened to non-Indian settlement in
1905. The trial court rejected petitioner's claim that it lacked
jurisdiction over him because he was an Indian and the crime had
been committed in "Indian country," see 18 U. S. C. § 1151, such
that federal jurisdiction was exclusive. The state appellate court,
relying on
Ute Indian Tribe v.
Utah, 773 F.2d
1087 (CAlO), cert. denied, 479 U. S. 994, agreed with
petitioner's contentions and vacated his conviction. The Utah
Supreme Court reversed and reinstated the conviction, ruling that
Congress had "diminished" the reservation by opening it to
non-Indians, that Myton was outside its boundaries, and thus that
petitioner's offense was subject to state criminal jurisdiction.
See
Solem v.
Bartlett, 465 U. S. 463, 467
("States have jurisdiction over ... opened lands if the applicable
surplus land Act freed that land of its reservation status and
thereby diminished the reservation boundaries").
Held: Because the Uintah Reservation has been diminished
by Congress, the town of Myton is not in Indian country and the
Utah courts properly exercised criminal jurisdiction over
petitioner. Pp. 409-422.
(a) This Court declines to consider whether the State of Utah,
which was a party to the Tenth Circuit proceedings in
Ute Indian
Tribe, should be collaterally estopped from relitigating the
reservation boundaries. That argument is not properly before the
Court because it was not presented in the petition for a writ of
certiorari and was expressly disavowed by petitioner in his
response to an
amicus brief. Pp.409-410.
(b) Under this Court's traditional approach, as set forth in
Solem v.
Bartlett, supra, and other cases, whether any given
surplus land Act diminished a reservation depends on all the
circumstances, including (1) the statutory language used to open
the Indian lands, (2) the contemporaneous understanding of the
particular Act, and (3) the identity of the persons who actually
moved onto the opened lands. As to the first, the most probative,
of these factors, the statutory language must establish an express
congressional purpose to diminish, but no particular form of words
is prerequisite to a finding of diminishment. Moreover,
although
400
Syllabus
the provision of a sum certain payment to the Indians, when
coupled with a statutory expression of intent, can certainly
provide additional evidence of diminishment, the lack of such a
provision does not lead to the contrary conclusion. Throughout the
diminishment inquiry, ambiguities are resolved in favor of the
Indians, and diminishment will not lightly be found. Pp.
410-412.
(c) The operative language of the Act of May 27,1902, ch. 888,
32 Stat. 263-which provided for allotments of some Uintah
Reservation land to Indians, and that "all the unallotted lands
within said reservation shall be
restored to the public
domain" (emphasis added)-evidences a congressional purpose to
terminate reservation status. See,
e. g., Seymour v.
Superintendent of Wash. State Penitentiary, 368 U. S. 351, 354-355.
Solem, supra, at 472-476, distinguished. Contrary to
petitioner's argument, this baseline intent to diminish was not
changed by the Act of March 3,1905, ch. 1479,33 Stat. 1069.
Language in that statute demonstrates that Congress clearly viewed
the 1902 Act as the basic legislation upon which the 1905 Act and
intervening statutes were built. Furthermore, the structure of the
statutes-which contain complementary, nonduplicative essential
provisions-requires that the 1905 and 1902 Acts be read together.
Finally, the general rule that repeals by implication are
disfavored is especially strong here, because the 1905 Act
expressly repealed a provision in the intervening statute
passed in 1903; if Congress had meant to repeal any part of any
other previous statute, it could easily have done so. Pp.
412-416.
(d) The historical evidence-including letters and other
statements by Interior Department officials, congressional bills
and statements by Members of Congress, and the text of the 1905
Presidential Proclamation that actually opened the Uintah
Reservation to settlement-clearly indicates the contemporaneous
understanding that the reservation would be diminished by the
opening of the unallotted lands. This conclusion is not altered by
inconsistent references to the reservation in both the past and
present tenses in the post-1905 legislative record. These must be
viewed merely as passing references in text, not deliberate
conclusions about the congressional intent in 1905. Pp.
416-420.
(e) Practical acknowledgment that the reservation was diminished
is demonstrated by the current population situation in the Uintah
Valley, which is approximately 85 percent non-Indian in the opened
lands and 93 percent non-Indian in the area's largest city; by the
fact that the seat of local tribal government is on Indian trust
lands, not opened lands; and by the State of Utah's assumption of
jurisdiction over the opened lands from 1905 until the Tenth
Circuit decided
Ute Indian Tribe. A contrary conclusion
would seriously disrupt the justifiable expectations of the people
living in the area. Pp.420-421.
858 P. 2d 925, affirmed.
401
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and
GINSBURG, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in
which SOUTER, J., joined,
post, p. 422.
Martin E. Seneca, Jr., argued the cause for
petitioner.
With him on the briefs was
Daniel H. Israel.
Ronald
J. Mann argued the cause for the United States as
amicus curiae urging reversal. With him on the briefs were
Solicitor General Days, Acting Assistant Attorney General Flint,
Acting Deputy Solicitor General Kneedler, Edward J. Shawaker, and
Martin W Matzen.
Jan Graham, Attorney General of Utah, argued the cause
for respondent. With her on the brief were
Carol Clawson,
Solicitor General, and
Michael M. Quealy, Assistant Attorney
General. *
JUSTICE O'CONNOR delivered the opinion of the Court.
In this case we decide whether the Uintah Indian Reservation was
diminished by Congress when it was opened to non- Indian settlers
at the turn of the century. If the reservation has been diminished,
then the town of Myton, Utah, which lies on opened lands within the
historical boundaries of the reservation, is not in "Indian
country," see 18 U. S. C.
* Robert S. Thompson III, Sandra Hansen, and Jeanne S.
Whiteing filed a brief for the Ute Indian Tribe as amicus curiae
urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the State of South Dakota et al. by
Mark Barnett, Attorney
General of South Dakota, and
John P. Guhin, Deputy Attorney
General, and for the Attorneys General of their respective States
as follows:
Grant Woods of Arizona,
Daniel E. Lungren
of California,
Marc Racicot of Montana,
Frankie Sue Del
Papa of Nevada, and
Susan B. Loving of Oklahoma; for
Duchesne County, Utah, by
Herbert Wm. Gillespie and
Jesse C.
Trentadue; for Fremont County, Wyoming, et
al. by
James M. Johnson; for Uintah County, Utah, by
Tom
D. Tobin and
Kenn A. Pugh; and for the Council of State
Governments et al. by
Richard Ruda and
Charles
Rothfeld.
Briefs of
amici curiae were filed for the Navajo Nation
by
Paul E.
Frye; and for Roosevelt City by
Craig M.
Bunnell.
402
§ 1151, and the Utah state courts properly exercised criminal
jurisdiction over petitioner, an Indian who committed a crime in
Myton.
I
On October 3, 1861, President Lincoln reserved about 2 million
acres of land in the Territory of Utah for Indian settlement.
Executive Order No. 38-1, reprinted in 1 C. Kappler, Indian
Affairs: Laws and Treaties 900 (1904). Congress confirmed the
President's action in 1864, creating the Uintah Valley Reservation.
Act of May 5, 1864, ch. 77, 13 Stat. 63. According to the 1864 Act,
the lands were "set apart for the permanent settlement and
exclusive occupation of such of the different tribes of Indians of
said territory as may be induced to inhabit the same."
Ibid.
The presentday Ute Indian Tribe includes the descendants of the
Indians who settled on the Uintah Reservation.
In the latter part of the 19th century, federal Indian policy
changed. See F. Cohen, Handbook of Federal Indian Law 127-139 (1982
ed.). Indians were no longer to inhabit communally owned
reservations, but instead were to be given individual parcels of
land; any remaining lands were to be opened for settlement by
non-Indians. The General Allotment Act, Act of Feb. 8, 1887, ch.
119, 24 Stat. 388, granted the President authority "to allot
portions of reservation land to tribal members and, with tribal
consent, to sell the surplus lands to [non-Indian] settlers, with
the proceeds of these sales being dedicated to the Indians'
benefit."
DeCoteau v.
District County Court for Tenth
Judicial District, 420 U. S. 425, 432
(1975).
Pursuant to the General Allotment Act, Congress in 1894 directed
the President to appoint a commission to negotiate with the Indians
for the allotment of Uintah Reservation lands and the
"relinquishment to the United States" of all unallotted lands. Act
of Aug. 15, 1894, ch. 290, § 22, 28 Stat. 337. That effort did not
succeed, and in 1898 Congress directed the President to appoint
another commission to nego-
403
tiate an agreement for the allotment of Uintah Reservation lands
and the "cession" of unallotted lands to the United States. Act of
June 4, 1898, ch. 376, 30 Stat. 429. The Indians resisted those
efforts as well. Various bills that would have opened the
reservation unilaterally (i.
e., without the consent of the
Indians) were subsequently introduced in the Senate but were not
enacted into law. See Leasing of Indian Lands, Hearings before the
Senate Committee on Indian Affairs, S. Doc. No. 212, 57th Cong.,
1st Sess., 3 (1902).
In 1902, Congress passed an Act which provided that if a
majority of the adult male members of the Uintah and White River
Indians consented, the Secretary of the Interior should make
allotments by October 1, 1903, out of the Uintah Reservation. Act
of May 27, 1902, ch. 888, 32 Stat. 263.1 The allotments under the
1902 Act were to be 80 acres for each head of a family and 40 acres
for each other member of
1 The 1902 Act provided in relevant part:
"That the Secretary of the Interior, with the consent thereto of
the majority of the adult male Indians of the Uintah and the White
River tribes of Ute Indians, to be ascertained as soon as
practicable by an inspector, shall cause to be allotted to each
head of a family eighty acres of agricultural land which can be
irrigated and forty acres of such land to each other member of said
tribes, said allotments to be made prior to October first, nineteen
hundred and three, on which date all the unallotted lands within
said reservation shall be restored to the public domain:
Provided, That persons entering any of 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 ... the proceeds of the sale
of the lands so restored to the public domain shall be applied,
first, to the reimbursement of the United States for any moneys
advanced to said Indians to carry into effect the foregoing
provisions; and the remainder, under the direction of the Secretary
of the Interior, shall be used for the benefit of said Indians. And
the sum of seventy thousand 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." 32 Stat. 263-264.
404
the Tribes. The Act also provided that when the deadline for
allotments passed, "all the unallotted lands within said
reservation shall be restored to the public domain" and subject to
homesteading at $1.25 per acre.
Ibid. The proceeds from the
sale of lands restored to the public domain were to be used for the
benefit of the Indians.
A month after the passage of the 1902 Act, Congress directed the
Secretary of the Interior to set apart sufficient land to serve the
grazing needs of the Indians remaining on the reservation. J. Res.
31, 57th Cong., 1st Sess. (1902), 32 Stat. 744.2 The resolution
clarified that $70,000 appropriated by the 1902 Act was to be paid
to the Indians "without awaiting their action upon the proposed
allotment in severalty of lands in that reservation and the
restoration of the surplus lands to the public domain."
Id.,
at 745.
In January 1903, this Court held that Congress can unilaterally
alter reservation boundaries.
Lone Wolf v.
Hitchcock,
187 U. S. 553,
567-568. On Mar. 3, 1903, Congress directed the Secretary to allot
the Uintah lands unilaterally if the Indians did not give their
consent by June 1 of that year, and deferred the opening of the
unallotted lands "as provided by the [1902 Act]" until October 1,
1904. Act of Mar. 3, 1903,
2 The 1902 Joint Resolution provided in relevant part:
"In addition to the allotments in severalty to the Uintah and
White River Utes of the Uintah Indian Reservation in the State of
Utah, the Secretary of the Interior shall, before any of said lands
are opened to disposition under any public land law, select and set
apart for the use in common of the Indians of that reservation such
an amount of non-irrigable grazing lands therein at one or more
places as will subserve the reasonable requirements of said Indians
for the grazing of live stock.
"The item of seventy thousand and sixty-four dollars and
forty-eight cents appropriated by the Act which is hereby
supplemented and modified, to be paid to the Uintah and White River
tribes of Ute Indians in satisfaction of certain claims named in
said Act, shall be paid to the Indians entitled thereto without
awaiting their action upon the proposed allotment in severalty of
lands in that reservation and the restoration of the surplus lands
to the public domain." 32 Stat. 744-745.
405
ch. 994, 32 Stat. 998.3 The 1903 Act also specified that the
grazing lands specified in the 1902 Joint Resolution would be
limited to 250,000 acres south of the Strawberry River. In 1904,
Congress passed another statute that appropriated additional funds
to "carry out the purposes" of the 1902 Act, and deferred the
opening date "as provided by the [1902 and 1903 Acts]" until Mar.
10, 1905. Act of Apr. 21, 1904, ch. 1402, 33 Stat. 207.4
3 The 1903 Act provided in relevant part:
"[Money is hereby appropriated to] enable the Secretary of the
Interior to do the necessary surveying and otherwise carry out the
purposes of so much of the Act of May twenty-seventh, nineteen
hundred and two, ... as provides for the allotment of the ...
Uintah and White River Utes in Utah ... :
Provided, however,
That the Secretary of the Interior shall forthwith send an
inspector to obtain the consent of the Uintah and White River Ute
Indians to an allotment of their lands as directed by the Act of
May twenty-seventh, nineteen hundred and two, and if their consent,
as therein provided, 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 described in said Act:
And provided further, That the grazing lands to be set apart
for the use of the Uintah, White River Utes, and other Indians, as
provided by public resolution numbered thirty-one, of June
nineteenth, nineteen hundred and two, be confined to the lands
south of the Strawberry River on said Uintah Reservation, and shall
not exceed two hundred and fifty thousand acres:
And provided
further, That the time for opening the unallotted lands to
public entry on said Uintah Reservation, as provided by the Act of
May twenty-seventh, nineteen hundred and two, be, and the same is
hereby, extended to October first, nineteen hundred and four." 32
Stat. 997-998.
4 The 1904 Act provided in relevant part:
"That the time for opening the unallotted lands to public entry
on the Uintah Reservation, in Utah, as provided by the Acts of May
twentyseventh, nineteen hundred and two, and March third, nineteen
hundred and three, be, and the same is hereby extended to March
tenth, nineteen hundred and five, and five thousand dollars is
hereby appropriated to enable the Secretary of the Interior to do
the necessary surveying, and otherwise carry out the purposes of so
much of the Act of May twentyseventh, nineteen hundred and two, ...
as provides for the allotment of the Indians of the Uintah and
White River Utes in Utah." 33 Stat. 207-208.
406
In 1905, Congress again deferred the opening date, this time
until September 1, 1905, unless the President were to establish an
earlier date. Act of Mar. 3, 1905, ch. 1479, 33 Stat. 1069.5 The
1905 Act repealed the provision of the 1903 Act limiting the
grazing lands to areas south of the Strawberry River. The Act
further provided:
"[T]he manner of opening [reservation] lands for settlement and
entry, and for disposing of the same, shall be as follows: That the
said unallotted lands ... shall be
5 The 1905 Act provided in relevant part:
"That so much of the Act of March third, nineteen hundred and
three, as provides that the grazing lands to be set apart for the
use of the Uintah, White River Utes, and other Indians on the
Uintah Reservation, as provided by public resolution numbered
thirty-one, of June nineteenth, nineteen hundred and two, shall be
confined to the lands south of the Strawberry River, be, and the
same is hereby, repealed.
"That the time for opening to public entry the unallotted lands
on the Uintah Reservation in Utah having been fixed by law as the
tenth day of March, nineteen hundred and five, it is hereby
provided that the time for opening said reservation shall be
extended to the first of September, nineteen hundred and five,
unless the President shall determine that the same may be opened at
an earlier date and that the manner of opening such lands for
settlement and entry, and for disposing of the same, shall be as
follows: That the said unallotted lands ... shall be disposed of
under the general provisions of the homestead and town-site laws of
the United States, and shall be opened to settlement and entry by
proclamation of the President, which proclamation shall prescribe
the manner in which these lands may be settled upon, occupied, and
entered by persons entitled to make entry thereof; and no person
shall be permitted to settle upon, occupy, or enter any of said
lands, except as prescribed in said proclamation, until after the
expiration of sixty days from the time when the same are thereby
opened to settlement and entry: ...
And provided further,
That all lands opened to settlement and entry under this Act
remaining undisposed of at the expiration of five years from the
taking effect of this Act shall be sold and disposed of for cash,
under rules and regulations to be prescribed by the Secretary of
the Interior, not more than six hundred and forty acres to anyone
person. The proceeds of the sale of such lands shall be applied as
provided in the Act of Congress of May twenty-seventh, nineteen
hundred and two, and the Acts amendatory thereof and supplemental
thereto." 33 Stat. 1069-1070.
407
disposed of under the general provisions of the homestead and
town-site laws of the United States, and shall be opened to
settlement and entry by proclamation of the President, which
proclamation shall prescribe the manner in which these lands may be
settled upon, occupied, and entered by persons entitled to make
entry thereof." Ibid.
All lands remaining open but unsettled after five years were to
be sold for cash, in parcels up to 640 acres. The "proceeds of the
sale of such lands" were to be "applied as provided in the [1902
Act] and the Acts amendatory thereof and supplemental thereto."
Id., at 1070.
The Government once again failed to obtain the consent of the
Indians. On July 14, 1905, President Roosevelt issued the following
Proclamation:
"Whereas it was provided by the [1902 Act], among other things,
that on October first, 1903, the unallotted lands in the Uintah
Indian Reservation, in the State of Utah, 'shall be restored to the
public domain: Provided, That persons entering any of said lands
under the homestead laws shall pay therefor at the rate of [$1.25]
per acre.'
"And, whereas, the time for the opening of said unallotted lands
was extended to October 1, 1904, by the [1903 Act], and was
extended to March 10, 1905, by the [1904 Act], and was again
extended to not later than September 1, 1905, by the [1905 Act],
which last named act provided, among other things: ['That the said
unallotted lands ... shall be disposed of under the general
provisions of the homestead and townsite laws of the United States
.... ']
"Now, therefore, I, Theodore Roosevelt, President of the United
States of America, by virtue of the power in me vested by said Acts
of Congress, do hereby declare and make known that all the
unallotted lands in said
408
reservation ... will on and after the 28th day of August, 1905,
in the manner hereinafter prescribed, and not otherwise, be opened
to entry, settlement and disposition under the general provisions
of the homestead and townsite laws of the United States." 34 Stat.
3119-3120.
The Proclamation went on to detail a lottery scheme for the
allocation of the lands to settlers.
II
In 1989, petitioner was charged in Utah state court with
distribution of a controlled substance. The offense occurred in the
town of Myton, which was established within the original boundaries
of the Uintah Indian Reservation when the reservation was opened to
non-Indian settlement in 1905. Petitioner initially pleaded guilty,
but subsequently filed a motion to withdraw his guilty plea. The
basis of the motion was that the Utah state courts lacked
jurisdiction over petitioner because he was an Indian and the crime
had been committed in Indian country. The trial court denied the
motion, finding that petitioner is not an Indian.
The state appellate court reversed. It concluded that petitioner
is an Indian, a determination that is not at issue in this Court.
The court also held that Myton is in Indian country, relying on
Ute Indian Tribe v.
Utah, 773 F.2d
1087 (1985) (en bane), cert. denied, 479 U. S. 994 (1986), in
which the Tenth Circuit held that the Uintah Indian Reservation was
not diminished when it was opened to settlement in 1905. Because
Congress has not granted criminal jurisdiction to the State of Utah
to try crimes committed by Indians in Indian country, cf.
Negonsott v.
Samuels, 507 U. S. 99, 103 (1993);
Washington v.
Confederated Bands and Tribes of Yakima
Nation, 439 U. S.
463, 471-474 (1979), the appellate court held that the state
courts lacked jurisdiction over petitioner. The court accordingly
vacated petitioner's conviction.
409
The Utah Supreme Court reversed on the authority of
State
v.
Perank, 858 P. 2d 927 (1992), in which the court had held
(on the same day as the decision in petitioner's case) that the
reservation had been diminished and that Myton was outside its
boundaries, and thus that petitioner's offense was subject to state
criminal jurisdiction. 858 P. 2d 925 (1992); see
Solem v.
Bartlett, 465
U. S. 463, 467 (1984) ("As a doctrinal matter, the States have
jurisdiction over unallotted opened lands if the applicable surplus
land Act freed that land of its reservation status and thereby
diminished the reservation boundaries"). The court accordingly
reinstated petitioner's conviction.
We granted certiorari, 507 U. S. 1028 (1993), to resolve the
direct conflict between these decisions of the Tenth Circuit and
the Utah Supreme Court on the question whether the Uintah
Reservation has been diminished.
III
We first address a threshold question: whether the State of
Utah, which was a party to the Tenth Circuit proceedings, should be
collaterally estopped from relitigating the reservation boundaries.
In
Perank, the Utah Supreme Court noted that "neither
Perank, the Department of Justice, nor the Tribe suggests that the
Tenth Circuit's
en bane decision in
Ute Indian Tribe
has res judicata effect in this case." 858 P. 2d, at 931. Because
"[r]es judicata is an affirmative defense in both criminal and
civil cases and therefore is waivable,"
id., at 931, n. 3,
the court went on to consider the merits of the State's claim.
Petitioner's only recourse would have been to attack the
judgment in
Perank on the ground that the Utah Supreme Court
failed to give effect
sua sponte to the prior determination
in
Ute Indian Tribe that the reservation had not been
diminished. Although that issue is one of federal law, see
Restatement (Second) of Judgments § 86 (1982), it was not presented
in the petition for a writ of certiorari. It there-
410
fore is not properly before us.
Yee v.
Escondido,
503 U. S. 519,
535-536 (1992); see
Izumi Seimitsu Kogyo Kabushiki Kaisha v.
U. S.
Philips Corp., 510 U. S. 27 (1993)
(per curiam). Moreover, petitioner disavowed the collateral
estoppel argument at the petition stage, in response to a brief
filed by the Ute Indian Tribe:
"The question presented in the petition was whether the
reservation had been diminished by acts of congress. [This Court's
Rule 14.1(a)] does not appear to allow different issues to be
raised. The Ute Indian Tribe argues that the Supreme Court of the
State of Utah should have reached a different decision in
[Perank] based on the doctrine of collateral estoppel ....
Regardless of the opinion held by the Ute Indian Tribe of the
Perank decision, the decision has been made and is
controlling in petitioner's case." Supplemental Brief for
Petitioner 2 (filed Dec. 2, 1992) (emphasis added).
Because we see no reason to consider an argument that petitioner
not only failed to raise, but also expressly refused to rely upon
in seeking a writ of certiorari, we turn to the merits.
IV
In
Solem v.
Bartlett, we recognized:
"It is settled law that some surplus land Acts diminished
reservations, see, e. g., Rosebud Sioux Tribe v.
Kneip, 430 U.
S. 584 (1977); DeCoteau v. District County Court,
420 U. S. 425
(1975), and other surplus land Acts did not, see, e. g.,
Mattz v. Arnett, 412 U. S. 481 (1973);
Seymour v. Superintendent, 368 U. S. 351 (1962). The
effect of any given surplus land Act depends on the language of the
Act and the circumstances underlying its passage." 465 U. S., at
469.
In determining whether a reservation has been diminished, "[o]ur
precedents in the area have established a fairly clean
411
analytical structure,"
id., at 470, directing us to look
to three factors. The most probative evidence of diminishment is,
of course, the statutory language used to open the Indian lands.
Ibid. We have also considered the historical context
surrounding the passage of the surplus land Acts, although we have
been careful to distinguish between evidence of the contemporaneous
understanding of the particular Act and matters occurring
subsequent to the Act's passage.
Id., at 471. Finally, "[o]n
a more pragmatic level, we have recognized that who actually moved
onto opened reservation lands is also relevant to deciding whether
a surplus land Act diminished a reservation."
Ibid.
Throughout the inquiry, we resolve any ambiguities in favor of the
Indians, and we will not lightly find diminishment.
Id., at
470, 472; see also
South Dakota v.
Bourland, 508 U. S. 679, 687 (1993)
(" '[S]tatutes are to be construed liberally in favor of the
Indians, with ambiguous provisions interpreted to their benefit'"
(quoting
County of Yakima v.
Confederated Tribes and
Bands of Yakima Nation, 502 U. S. 251, 269 (1992)
(internal quotation marks omitted))).
The Solicitor General, appearing as
amicus in support of
petitioner, argues that our cases establish a "clear-statement
rule," pursuant to which a finding of diminishment would require
both explicit language of cession or other language evidencing the
surrender of tribal interests and an unconditional commitment from
Congress to compensate the Indians. See Brief for United States as
Amicus Curiae 7-8. We disagree. First, although the
statutory language must "establis[h] an express congressional
purpose to diminish,"
Solem, 465 U. S., at 475, we have
never required any particular form of words before finding
diminishment, see
Rosebud Sioux Tribe v.
Kneip,
430 U. S. 584,
588, and n. 4 (1977). Second, we noted in
Solem that a
statutory expression of congressional intent to diminish, coupled
with the provision of a sum certain payment, would establish a
nearly conclusive presumption that the reservation had been
diminished. 465
412
u. S., at 470-471. While the provision for definite payment can
certainly provide additional evidence of diminishment, the lack of
such a provision does not lead to the contrary conclusion. In fact,
the statutes at issue in
Rosebud, which we held to have
effected a diminishment, did not provide for the payment of a sum
certain to the Indians. See 430 U. S., at 596, and n. 18. We thus
decline to abandon our traditional approach to diminishment cases,
which requires us to examine all the circumstances surrounding the
opening of a reservation.
A
The operative language of the 1902 Act provided for allocations
of reservation land to Indians, and that "all the unallotted lands
within said reservation shall be
restored to the public
domain." 32 Stat. 263 (emphasis added). The public domain was
the land owned by the Government, mostly in the West, that was
"available for sale, entry, and settlement under the homestead
laws, or other disposition under the general body of land laws." E.
Peffer, The Closing of the Public Domain 6 (1951). "[F]rom an early
period in the history of the government it [was] the practice of
the President to order, from time to time, ... parcels of land
belonging to the United States to be reserved from sale and set
apart for public uses."
Grisar v.
McDowell, 6 Wall.
363, 381 (1868). This power of reservation was exercised for
various purposes, including Indian settlement, bird preservation,
and military installations, "when it appeared that the public
interest would be served by withdrawing or reserving parts of the
public domain."
United States v.
Midwest Oil Co.,
236 U. S. 459,
471 (1915).
It follows that when lands so reserved were "restored" to the
public domain-i.
e., once again opened to sale or
settlement-their previous public use was extinguished. See
Sioux
Tribe v.
United States, 316 U. S. 317, 323 (1942)
(President ordered lands previously reserved for Indian use
"'restored to the public domain[,] ... the same being no longer
413
needed for the purpose for which they were withdrawn from sale
and settlement' ");
United States v.
Pelican,
232 U. S. 442,
445-446 (1914). Statutes of the period indicate that Congress
considered Indian reservations as separate from the public domain.
See,
e. g., Act of June 25, 1910, § 6, 36 Stat. 857
(criminalizing forest fires started "upon the public domain, or
upon any Indian reservation") (quoted in
United States v.
Alford, 274 U.
S. 264, 266-267 (1927)). Likewise, in
DeCoteau we
emphasized the distinction between reservation and public domain
lands: "That the lands ceded in the other agreements were
returned to the public domain, stripped of reservation
status, can hardly be questioned .... The sponsors of the
legislation stated repeatedly that the ratified agreements would
return the ceded lands to the 'public domain.'" 420 U. S., at 446
(emphasis added).
In
Solem, the Court held that an Act which authorized the
Secretary of the Interior to " 'sell and dispose of' " unallotted
reservation lands merely opened the reservation to nonIndian
settlement and did not diminish it. 465 U. S., at 472474. Elsewhere
in the same statute, Congress had granted the Indians permission to
harvest timber on the opened lands "'as long as the lands remain
part of the public domain.'"
Id., at 475. We recognized that
this reference to the public domain "support[ed]" the view that a
reservation had been diminished, but that it was "hardly
dispositive."
Id., at 475. We noted that "even without
diminishment, unallotted opened lands could be conceived of as
being in the 'public domain' inasmuch as they were available for
settlement."
Id., at 475, n. 17. The Act in
Solem,
however, did not "restore" the lands to the public domain. More
importantly, the reference to the public domain did not appear in
the operative language of the statute opening the reservation lands
for settlement, which is the relevant point of reference for the
diminishment inquiry. Our cases considering
operative
language of restoration have uniformly equated it with a
congressional purpose to terminate reservation status.
414
In
Seymour v.
Superintendent of Wash. State
Penitentiary, 368
U. S. 351 (1962), for example, the question was whether the
Colville Reservation, in the State of Washington, had been
diminished. The Court noted that an 1892 Act which "'vacated and
restored to the public domain'" about one-half of the reservation
lands had diminished the reservation as to that half.
Id.,
at 354. As to the other half, Congress in 1906 had provided for
allotments to the Indians, followed by the sale of mineral lands
and entry onto the surplus lands under the homestead laws. This
Court held that the 1906 Act did not result in diminishment:
"Nowhere in the 1906 Act is there to be found any language similar
to that in the 1892 Act expressly vacating the South Half of the
reservation and restoring that land to the public domain."
Id., at 355. This Court subsequently characterized the 1892
Act at issue in
Seymour as an example of Congress' using
"clear language of express termination when that result is
desired."
Mattz, 412 U. S., at 504, n. 22. And in
Rosebud, all nine Justices agreed that a statute which"
'restored to the public domain'" portions of a reservation would
result in diminishment. 430 U. S., at 589, and n. 5;
id., at
618 (Marshall, J., dissenting).
In light of our precedents, we hold that the restoration of
unallotted reservation lands to the public domain evidences a
congressional intent with respect to those lands inconsistent with
the continuation of reservation status. Thus, the existence of such
language in the operative section of a surplus land Act indicates
that the Act diminished the reservation. Indeed, we have found only
one case in which a Federal Court of Appeals decided that statutory
restoration language did not terminate a reservation,
Ute Indian
Tribe, 773 F. 2d, at 1092, a conclusion the Tenth Circuit has
since disavowed as "unexamined and unsupported."
Pittsburg
& Midway Coal Mining Co. v.
Yazzie,
909 F.2d
1387, 1400, cert. denied, 498 U. S. 1012 (1990).
415
Until the
Ute Indian Tribe litigation in the Tenth
Circuit, every court had decided that the unallotted lands were
restored to the public domain pursuant to the terms of the 1902
Act, with the 1905 Act simply extending the time for opening and
providing for a few details.
Hanson v.
United States,
153 F.2d 162, 162-163 (CAlO 1946);
United States v.
Boss, 160 F.1d
2, 133 (Utah 1906);
Uintah and White River Bands of Ute
Indians v.
United States, 139 Ct. Cl. 1, 21-23 (1957);
Sowards v.
Meagher, 108 P. 1112, 1114 (Utah 1910).
Petitioner argues, however, that the 1905 Act changed the "manner"
in which the lands were to be opened. That Act specified that the
homestead and townsite laws would apply, and so superseded the
"restore to the public domain" language of the 1902 Act, language
that was not repeated in the 1905 Act. We disagree, because the
baseline intent to diminish the reservation expressed in the 1902
Act survived the passage of the 1905 Act.
Every congressional action subsequent to the 1902 Act referred
to that statute. The 1902 Joint Resolution provided an
appropriation prior to the restoration of surplus reservation lands
to the public domain. 32 Stat. 744. The 1903 and 1904 Acts simply
extended the deadline for opening the reservations in order to
allow more time for surveying the lands, so that the "purposes" of
the 1902 Act could be carried out. 32 Stat. 997; 33 Stat. 207. And
the 1905 Act recognized that they were all tied together when it
provided that the proceeds of the sale of the unallotted lands
"shall be applied as provided in the [1902 Act] and the Acts
amendatory thereof and supplementary thereto." 33 Stat. 1070. The
Congress that passed the 1905 Act clearly viewed the 1902 statute
as the basic legislation upon which subsequent Acts were built.
Furthermore, the structure of the statutes requires that the
1905 Act and the 1902 Act be read together. Whereas the 1905 Act
provided for the disposition of
unallotted lands, it was the
1902 Act that provided for allotments to the lndi-
416
ans. The 1902 Act also established the price for which the
unallotted lands were to be sold, and what was to be done with the
proceeds of the sales. The 1905 Act did not repeat these essential
features of the opening, because they were already spelled out in
the 1902 Act. The two statutes-as well as those that came in
between-must therefore be read together.
Finally, the general rule that repeals by implication are
disfavored is especially strong in this case, because the 1905 Act
expressly repealed the provision in the 1903 Act concerning
the siting of the grazing lands; if Congress had meant to repeal
any part of any other previous statute, it could easily have done
so. Furthermore, the predicate for finding an implied repeal is not
present in this case, because the opening provisions of the two
statutes are not inconsistent: The 1902 Act also provided that the
unallotted lands restored to the public domain could be sold
pursuant to the homestead laws. Other surplus land Acts which we
have held to have effected diminishment similarly provided for
initial entry under the homestead and townsite laws. See
Rosebud, supra, at 608;
DeCoteau, 420 U. S., at
442.
B
Contemporary historical evidence supports our conclusion that
Congress intended to diminish the Uintah Reservation. As we have
noted, the plain language of the 1902 Act demonstrated the
congressional purpose to diminish the Uintah Reservation. Under the
1902 Act, however, the consent of the Indians was required before
the reservation could be diminished; that consent was withheld by
the Indians living on the reservation. After this Court's
Lone
Wolf decision in 1903, Congress authorized the Secretary of the
Interior to proceed unilaterally. The Acting Commissioner for
Indian Affairs in the Department of the Interior directed Indian
Inspector James McLaughlin to travel to the Uintah Reservation to
"endeavor to obtain [the Indians'] consent to the
417
allotment of lands as provided in the law, and to the
restoration of the surplus lands." Letter from A. C. Tonner to
James McLaughlin (Apr. 27, 1903), reprinted in S. Doc. No. 159,
58th Cong., 3d Sess., 9 (1905). The Acting Commissioner noted,
however, that the effect of the 1903 Act was that "if the [Indians]
do not consent to the allotments by the first of June next the
allotments are to be made notwithstanding, and the unallotted lands
... are to be opened to entry" according to the terms of the 1902
Act.
Id., at 8-9.
Inspector McLaughlin explained the effect of these recent
developments to the Indians living on the Reservation:
"'By that decision of the Supreme Court, Congress has the legal
right to legislate in regard to Indian lands, and Congress has
enacted a law which requires you to take your allotments.
"'You say that [the Reservation boundary] line is very heavy and
that the reservation 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.'" Minutes of Councils Held
by James McLaughlin, U. S. Indian Inspector, with the Uintah and
White River Ute Indians at Uintah Agency, Utah, from May 18 to May
23, 1903, excerpted in App. to Brief for Respondent 4a-5a (emphasis
added).
Inspector McLaughlin's picturesque phrase reflects the
contemporaneous understanding, by him conveyed to the Indians, that
the reservation would be diminished by operation of the 1902 and
1903 Acts notwithstanding the failure of the Indians to give their
consent.
The Secretary of the Interior informed Congress in February 1904
that the necessary surveying could not be completed before the date
set for the opening, and requested
418
that the opening be delayed. Letter from E. A. Hitchcock to the
Chairman of the Senate Committee on Indian Affairs (Feb. 6, 1904),
reprinted in S. Doc. No. 159,
supra, at 17. In the 1904 Act,
Congress accordingly extended the time for opening until March 10,
1905, and appropriated additional funds "to enable the Secretary of
the Interior to do the necessary surveying" of the reservation
lands. 33 Stat. 207. The Secretary of the Interior subsequently
informed Congress that a further extension would be necessary
because the surveying and allotments could not be completed during
the winter. Letter from E. A. Hitchcock to the Chairman of the
House Committee on Indian Affairs (Dec. 10, 1904), reprinted in S.
Doc. No. 159,
supra, at 21.
The House of Representatives took up the matter on January 21,
1905. The bill on which debate was held provided that "so much of
said lands as will be under the provisions of said acts restored to
the public domain shall be open to settlement and entry by
proclamation of the President of the United States, which
proclamation shall prescribe the manner in which these lands may be
settled upon, occupied, and entered." H. R. 17474, quoted in 39
Congo Rec. 1180 (1905). Representative Howell of Utah offered as an
amendment "[t]hat for one year immediately following the
restoration of said lands to the public domain said lands shall be
subject to entry only under the homestead, town-site, and mining
laws of the United States."
Ibid. Significantly,
Representative Howell offered his amendment as an addition to, not
a replacement for, the language in the bill that explicitly
referred to the lands' restoration to the public domain. He
explained:
"In the pending bill these lands, when restored to the public
domain, are subject to entry under the general land laws of the
United States, coupled with such rules and regulations as the
President may prescribe. In my humble judgment there should be some
provision such as is embodied in my amendment, limiting the lands
in the reservation to entry under the homestead, town-site,
419
and mining laws alone for one year from the date of the opening
....
"Congress should see to it that until such time as those lands
easy of access, reclamation, and irrigation are settled by actual
home makers the provisions of the homestead law alone shall
prevail. This policy is in accord with the dominant sentiment of
the time, viz, that the public lands shall be reserved for actual
homes for the people." Id., at 1182.
Although the amendment was rejected in the House of
Representatives,
id., at 1186, the Senate substituted the
current version of the 1905 Act, which is similar to the amendment
offered by Representative Howell but omits the restoration language
of the House version.
Id., at 3522. In the hearings on the
Senate bill, Senator Teller of Colorado had stated that "I am not
going to agree to any entry of that land except under the homestead
and town-site entries," because "I am not going to consent to any
speculators getting public land if I can help it." Indian
Appropriation Bill, 1906, Hearings before the Senate Subcommittee
of the Committee on Indian Affairs, 58th Cong., 3d Sess., 30
(1905). Thus, although we have no way of knowing for sure why the
Senate decided to limit the "manner" of opening, it seems likely
that Congress wanted to limit land speculation. That objective is
not inconsistent with the restoration of the unallotted lands to
the public domain: Once the lands became public, Congress could of
course place limitations on their entry, sale, and settlement.
The Proclamation whereby President Roosevelt actually opened the
reservation to settlement makes clear that the 1905 Act did not
repeal the restoration language of the 1902 Act. In that document,
the President stated that the 1902 Act provided that the unallotted
lands were to be restored to the public domain, that the 1903,
1904, and 1905 Acts extended the time for the opening, and that
those lands were
420
now opened for settlement under the homestead laws "by virtue of
the power in [him] vested
by said Acts of Congress." 34
Stat. 3120 (emphasis added). President Roosevelt thus clearly
understood the 1905 Act to incorporate the 1902 Act, and
specifically the restoration language. This "unambiguous,
contemporaneous, statement, by the Nation's Chief Executive,"
Rosebud, 430 U. S., at 602, is clear evidence of the
understanding at the time that the Uintah Reservation would be
diminished by the opening of the unallotted lands to non-Indian
settlement.
The subsequent history is less illuminating than the
contemporaneous evidence. Since 1905, Congress has repeatedly
referred to the Uintah Reservation in both the past and present
tenses, reinforcing our longstanding observation that "[t]he views
of a subsequent Congress form a hazardous basis for inferring the
intent of an earlier one."
United States v.
Philadelphia
Nat. Bank, 374 U.
S. 321, 348-349 (1963) (internal quotation marks omitted). The
District Court in the
Ute Indian Tribe case extensively
cataloged these congressional references, and we agree with that
court's conclusion:
"Not only are the references grossly inconsistent when
considered together, they ... are merely passing references in
text, not deliberate expressions of informal conclusions about
congressional intent in 1905." 521 F. Supp. 1072, 1135 (Utah 1981).
Because the textual and contemporaneous evidence of diminishment is
clear, however, the confusion in the subsequent legislative record
does nothing to alter our conclusion that the Uintah Reservation
was diminished.
C
Finally, our conclusion that the statutory language and history
indicate a congressional intent to diminish is not controverted by
the subsequent demographics of the Uintah Valley area. We have
recognized that "[w]hen an area is predominately populated by
non-Indians with only a few surviving pockets of Indian allotments,
finding that the land remains
421
Indian country seriously burdens the administration of state and
local governments."
Solem, 465 U. S., at 471-472, n. 12. Of
the original 2 million acres reserved for Indian occupation,
approximately 400,000 were opened for non-Indian settlement in
1905. Almost all of the non-Indians live on the opened lands. The
current population of the area is approximately 85 percent
non-Indian. 1990 Census of Population and Housing, Summary
Population and Housing Characteristics: Utah, 1990 CPH-1-46, Table
17, p. 73. The population of the largest city in the area-Roosevelt
City, named for the President who opened the reservation for
settlementis about 93 percent non-Indian.
Id., Table 3, p.
13.
The seat of Ute tribal government is in Fort Duchesne, which is
situated on Indian trust lands. By contrast, we found it
significant in
Solem that the seat of tribal government was
located on opened lands. 465 U. S., at 480. The State of Utah
exercised jurisdiction over the opened lands from the time the
reservation was opened until the Tenth Circuit's
Ute Indian
Tribe decision. That assumption of authority again stands in
sharp contrast to the situation in
Solem, where "tribal
authorities and Bureau of Indian Affairs personnel took primary
responsibility for policing ... the opened lands during the years
following [the opening in] 1908." 465 U. S., at 480. This
"jurisdictional history," as well as the current population
situation in the Uintah Valley, demonstrates a practical
acknowledgment that the Reservation was diminished; a contrary
conclusion would seriously disrupt the justifiable expectations of
the people living in the area. Cf.
Rosebud, supra, at
604-605.
V
We conclude that the Uintah Indian Reservation has been
diminished by Congress. Accordingly, the town of Myton, where
petitioner committed a crime, is not in Indian country and the Utah
courts properly exercised criminal jurisdiction
422
over him. We therefore affirm the judgment of the Utah Supreme
Court.
So ordered.
JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins,
dissenting.
"Great nations, like great men, should keep their word,"
FPC v.
Tuscarora Indian Nation, 362 U. S. 99, 142 (1960)
(Black, J., dissenting), and we do not lightly find that Congress
has broken its solemn promises to Indian tribes. The Court relies
on a single, ambiguous phrase in an Act that never became
effective, and which was deleted from the controlling statute, to
conclude that Congress must have intended to diminish the Uintah
Valley Reservation. I am unable to find a clear expression of such
intent in either the operative statute or the surrounding
circumstances and am compelled to conclude that the original Uintah
Valley Reservation boundaries remain intact.
I A
Two rules of construction govern our interpretation of Indian
surplus-land statutes: we must find clear and unequivocal evidence
of congressional intent to reduce reservation boundaries, and
ambiguities must be construed broadly in favor of the Indians.1
Congress alone has authority to di-
1 "The canons of construction applicable in Indian law are
rooted in the unique trust relationship between the United States
and the Indians,"
County of Oneida v.
Oneida Indian
Nation of N. Y.,
470 U. S. 226, 247
(1985), and the Indians' unequal bargaining power when agreements
were negotiated, see,
e. g., Choctaw Nation v.
United States, 119 U. S. 1, 28
(1886);
Jones v.
Meehan, 175 U. S. 1, 11 (1899).
"[T]reaties were imposed upon [the Indians] and they had no choice
but to consent. As a consequence, this Court often has held that
treaties with the Indians must be interpreted as they would have
understood them, ... and any doubtful expressions in them should be
resolved in the Indians' favor."
Choctaw Nation v.
Oklahoma, 397
U. S. 620, 631 (1970). Because Congress' au-
423
vest Indians of their land, see
United States v.
Celestine, 215
U. S. 278, 285 (1909), and "Congress [must] clearly evince an
'intent ... to change ... boundaries' before diminishment will be
found."
Solem v.
Bartlett, 465 U. S. 463, 470
(1984), quoting
Rosebud Sioux Tribe v.
Kneip,
430 U. S. 584,
615 (1977); see also
DeCoteau v.
District County Court
for Tenth Judicial District, 420 U. S. 425, 444
(1975);
Mattz v.
Arnett, 412 U. S. 481, 505
(1973). Absent a "plain and unambiguous" statement of congressional
intent,
United States v.
Santa Fe Pacific R. Co.,
314 U. S. 339,
346 (1941), we find diminishment only "[w]hen events surrounding
the [Act's] passage ...
unequivocally reveal a widely
held, contemporaneous understanding" that such was Congress'
purpose.
Solem, 465 U. S., at 471 (emphasis added).
In diminishment cases, the rule that "legal ambiguities are
resolved to the benefit of the Indians" also must be given "the
broadest possible scope."
DeCoteau, 420 U. S., at 447; see
also
Carpenter v.
Shaw, 280 U. S. 363, 367 (1930)
("Doubtful expressions are to be resolved in favor of the
[Indians]");
United States v.
Nice, 241 U. S. 591, 599
(1916);
United States v.
Celestine, 215 U. S., at
290. For more than 150 years,2 we have applied this canon in all
areas of Indian law to construe
thority to legislate unilaterally on behalf of the Indians
derives from the presumption that Congress will act with
benevolence, courts "have developed canons of construction that
treaties and other federal action should when possible be read as
protecting Indian rights and in a manner favorable to Indians." F.
Cohen, Handbook of Federal Indian Law 221 (1982 ed.) (hereinafter
Cohen). The principle "has been applied to the particular issue of
reservation termination to require that the intent of Congress to
terminate be clearly expressed."
Id., at 43.
2 The maxim that ambiguous provisions should be construed in
favor of the Indians was first articulated by Justice McLean in
Worcester v.
Georgia, 6 Pet. 515, 582 (1832)
(concurring opinion) ("The language used in treaties with the
Indians should never be construed to their prejudice"); see also
Choate v.
Trapp, 224 U. S. 665, 675 (1912)
("This rule of construction has been recognized, without exception,
for more than a hundred years").
424
congressional ambiguity or silence, in treaties, statutes,
executive orders, and agreements, to the Indians' benefit.3
Although the majority purports to apply these canons in
principle, see
ante, at 410-411, it ignores them in
practice, resolving every ambiguity in the statutory language,
legislative history, and surrounding circumstances in favor of the
State and imputing to Congress, where no clear evidence of
congressional intent exists, an intent to diminish the Uintah
Valley Reservation.
B
The special canons of construction are particularly relevant in
the diminishment context because the allotment statutes are often
ambiguous regarding their effect on tribal jurisdiction and
reservation boundaries. During the 19th century, land was
considered Indian country and thus subject to tribal jurisdiction
"whenever the Indian title had not been extinguished."
Bates
v.
Clark, 95 U.
S. 204, 208 (1877). In passing the General Allotment Act of
Feb. 8, 1887, 24 Stat. 388, and related statutes, Congress no doubt
assumed that tribal jurisdiction would terminate with the sale of
Indian lands and that the reservations eventually would be
abol-
3 The canon has been applied to treaties and statutes to
preserve broad tribal water rights, see,
e. g., Choctaw
Nation v.
Oklahoma, 397 U. S., at
631; Winters v.
United States, 207 U. S. 564, 576
(1908), hunting and fishing rights, see,
e. g., Washington
v.
Washington State Commercial Passenger Fishing Vessel
Assn., 443 U. S.
658, 675 (1979);
Antoine v.
Washington, 420 U. S. 194, 199-200
(1975);
Menominee Tribe v.
United States, 391 U. S. 404, 406, n. 2,
413 (1968);
Tulee v.
Washington, 315 U. S. 681, 684-685
(1942); Alaska Pacific Fisheries v.
United States,
248 U. S. 78, 89
(1918), and other land rights, see,
e. g., County of Oneida
v.
Oneida Indian Nation of N. Y., 470 U. S., at 247-248;
United States v.
Santa Fe Pacific R. Co., 314 U. S. 339, 354
(1941);
Minnesota v.
Hitchcock, 185 U. S. 373, 396
(1902); and to protect tribes from state taxation authority, see,
e. g., Bryan v.
Itasca County, 426 U. S. 373, 392
(1976);
McClanahan v.
Arizona State Tax Comm'n,
411 U. S. 164,
174 (1973);
Squire v.
Capoeman, 351 U. S. 1, 6-7 (1956);
Carpenter v.
Shaw, 280 U. S. 363, 366-367
(1930);
Choate v.
Trapp, 224 U. S., at 675;
The
Kansas Indians, 5 Wall. 737, 760 (1867).
425
ished. See
Solem, 465 U. S., at 468. The General
Allotment Act itself did not terminate the reservation system,
however, but was intended to assimilate 4 the Indians by
transforming them into agrarians and opening their lands to
non-Indians. See
Mattz, 412 U. S., at 496. After this goal
of the allotment policies proved to be a disastrous failure,5
Congress reversed course with the passage of the Indian
Reorganization Act of 1934, 48 Stat. 984, as amended, 25 U. S. C. §
461
et seq. (1988 ed. and Supp. IV), which allowed
surplusopened Indian lands to be restored to tribal ownership.
Finally, in 1948 Congress resolved the ensuing jurisdictional
conflicts by extending tribal jurisdiction to encompass lands owned
by non-Indians within reservation boundaries. See Act of June 25,
1948, 62 Stat. 757 (codified as 18 U. S. C. § 1151 (defining
"Indian country" as including "all land within the limits of any
Indian reservation under the jurisdiction of the United States
Government")).6 Reservation boundaries,
4 "The theory of assimilation was used to justify the
[allotment] legislation as beneficial to Indians. Proponents of
assimilation policies maintained that if Indians adopted the habits
of civilized life they would need less land, and the surplus would
be available for white settlers. The taking of these lands was
justified as necessary for the progress of civilization as a
whole." Cohen 128.
5 The 138 million acres held exclusively by Indians in 1887 when
the General Allotment Act was passed had been reduced to 52 million
acres by 1934. See 2 F. Prucha, The Great Father 896 (1984). John
Collier testified before Congress that nearly half of the lands
remaining in Indian hands were desert or semidesert, and that
100,000 Indians were "totally landless as a result of allotment."
Hearings on H. R. 7902 before the House Committee on Indian Mfairs,
73d Cong., 2d Sess., 17 (1934); see also D. Otis, The Dawes Act and
the Allotment of Indian Lands 124-155 (Prucha ed. 1973) (discussing
results of the allotments by 1900).
6 Congress' extension of tribal jurisdiction to reservation
lands owned by non-Indians served pragmatic ends. "[W]here the
existence or nonexistence of an Indian reservation, and therefore
the existence or nonexistence of federal jurisdiction, depends upon
the ownership of particular parcels of land, law enforcement
officers operating in the area will find it necessary to search
tract books in order to determine whether criminal jurisdiction
over each particular offense ... is in the State or Federal
426
rather than Indian title, thus became the measure of tribal
jurisdiction.
As a result of the patina history has placed on the allotment
Acts, the Court is presented with questions that their architects
could not have foreseen. It resolves the resulting statutory
ambiguities by requiring clear evidence of specific congressional
intent to diminish a reservation based on the language and
circumstances of each individual land Act. See
Solem, 465 U.
S., at 469. Accordingly, statutory language alone of sale and
settlement to non-Indians is insufficient to establish
diminishment. "The mere fact that a reservation has been opened to
settlement does not necessarily mean that the opened area has lost
its reservation status."
Rosebud, 430 U. S., at 586-587; see
also
DeCoteau, 420 U. S., at 444 ("[R]eservation status may
survive the mere opening of a reservation to settlement"). "[S]ome
surplus land Acts diminished reservations, ... and other surplus
land Acts did not,"
Solem, 465 U. S., at 469, and we have
refused to find diminishment based on language of opening or sale
absent additional unequivocal evidence of a congressional intent to
reduce reservation boundaries or divest all Indian interests. Thus,
in
Seymour v.
Superintendent of Wash. State
Penitentiary, 368
U. S. 351, 355 (1962), the Court found no diminishment under a
statute providing for the settlement and entry of surplus lands
under the homestead laws, and in
Mattz, 412 U. S., at 495,
the Court concluded that a statute opening the reservation
"'subject to settlement, entry, and purchase under the laws of the
United States granting homestead rights' " did "not, alone, recite
or even suggest that Congress intended thereby to terminate the ...
Reservation,"
id., at 497. Most recently, in
Solem,
465 U. S., at 472, we unanimously agreed that a statute authorizing
the Secretary of
Government. Such an impractical pattern of checkerboard
jurisdiction was avoided by the plain language of § 1151."
Seymour v.
Superintendent of Wash. State
Penitentiary, 368
U. S. 351, 358 (1962) (footnote omitted).
427
the Interior to "'sell and dispose'" of surplus Indian lands did
not diminish the reservation.
In contrast, the only two cases in which this Court previously
has found diminishment involved statutes and underlying tribal
agreements to " 'cede, sell, relinquish, and convey to the United
States all [the Indians'] claim, right, title, and interest'" in
unallotted lands,
DeCoteau, 420 U. S., at 439, n. 22, or to
"'cede, surrender, grant, and convey to the United States all [the
Indians'] claim, right, title, and interest'" in a defined portion
of the reservation,
Rosebud, 430 U. S., at 591, n. 8. The
Court held that in the presence of statutory language "precisely
suited" to diminishment,
id., at 597, supported by the
express consent of the tribes, "the intent of all parties to effect
a clear conveyance of all unallotted lands was evident."
DeCoteau, 420 U. S., at 436, n. 16.7 I need hardly add that
no such language or underlying Indian consent accompanies the
statute at issue in this case.
II A
The majority opinion relies almost exclusively on the fact that
the Act of May 27, 1902, 32 Stat. 263, "restored [the unallotted
lands] to the public domain" to conclude that the Uintah Valley
Reservation was diminished. I do not agree that this ambiguous
phrase can carry the weight of evincing a clear congressional
purpose. We never authoritatively have defined the public domain,
and the phrase "has no official definition. In its most general
application, a public domain is meant to include all the land owned
by a government-any government, anywhere." E. Peffer, The
Closing
7 Other statutes have used express language of geographical
termination. See 15 Stat. 221 ("the Smith River reservation is
hereby discontinued") and 33 Stat. 218 ("the reservation lines ...
are hereby, abolished").
428
of the Public Domain 5 (1951) (footnote omitted).8 Most
commonly, the public domain and public lands "have been defined as
those lands subject to sale or other disposal under the general
land laws."
Utah Div. of State Lands v.
United
States, 482 U. S.
193, 206 (1987), quoting E. Baynard, Public Land Law and
Procedure § 1.1, p. 2 (1986); see also
Kindred v.
Union
Pacific R. Co., 225 U. S. 582, 596 (1912)
(the term "public lands" ordinarily was "used to designate such
lands as are subject to sale or other disposal under general
laws");
Union Pacific R. Co. v.
Harris, 215 U. S. 386, 388
(1910);
Newhall v.
Sanger, 92 U. S. 761, 763 (1876)
("The words 'public lands' are habitually used ... to describe such
as are subject to sale or other disposal under general laws").
Nothing in our precedents stating that lands reserved from the
public domain were "reserved from sale,"
Grisar v.
McDowell, 6 Wall. 363, 381 (1868), or "withdrawn from sale
and settlement,"
Sioux Tribe v.
United States,
316 U. S. 317,
323 (1942) (internal quotation marks omitted), however,
demonstrates that restoration of those lands to the public domain
was "inconsistent" with continued reservation status,
ante,
at 416. Under 19th-century Indian-land policies, non-Indians could
not purchase, and generally could not enter, lands reserved for
exclusive use by Indian tribes. Indian reservations obviously were
not part of the public domain to the extent that they were reserved
from non-Indian purchase. The opening of these lands under the
allotment Acts, on the other hand, necessarily restored
all
such lands to the public domain, in the sense that the lands were
made
8 Although the phrase "public domain" appears infrequently in
our precedents, this Court has used it interchangeably with
references to "public land[s]." See,
e. g., United
States v.
Midwest Oil Co., 236 U. S. 459, 468
(1915). Black's Law Dictionary 1229 (6th ed. 1990) defines the
public domain as "[l]and and water in possession of and owned by
the United States and the states individually ....
See also
Public Lands." See
Amoco Production Co. v.
Gambell,
480 U. S. 531,
549, n. 15 (1987) ("reject[ing] the assertion that the phrase
'public lands,' in and of itself, has a precise meaning, without
reference to a definitional section or its context in a
statute").
429
available for entry and sale. Restoration of lands to the public
domain thus establishes only that the lands were opened to access
by non-Indians and to settlement and purchase, a condition
"completely consistent with continued reservation status."
Mattz, 412 U. S., at 497.
In our most recent diminishment case, we unanimously rejected
the argument adopted by the majority here-that "Congress would
refer to opened lands as being part of the public domain only if
the lands had lost all vestiges of reservation status."
Solem, 465 U. S., at 475. Instead, we observed that "even
without diminishment, unallotted opened lands could be conceived of
as being in the 'public domain' inasmuch as they were available for
settlement."
Id., at 475, n. 17; see also Whether Surplus
Lands in Uintah and Ouray Reservation are Indian Lands, 2 Op. Sol.
1205 (1943) ("[R]estored to the public domain" is "only a method of
indicating that the lands are to be subject to disposition under
the public land laws").
Solem concerned an allotment statute
that referred to opened lands as "part of the public domain," 465
U. S., at 475, and as "within the respective reservations thus
diminished,"
id., at 474 (internal quotation marks omitted).
The Court refused to infer diminishment from this language,
however, finding "considerable doubt as to what Congress meant in
using these phrases."
Id., at 475, n. 17. We concluded that
when balanced against the applicable statute's stated goal of
opening the reservation for sale to non-Indians, "these two phrases
cannot carry the burden of establishing an express congressional
purpose to diminish."
Id., at 475.
The majority's focus on the fact that the public domain language
in
Solem was not in the operative portion of the statute,
see
ante, at 413, ignores the
Solem Court's
additional conclusion that the public domain is an ambiguous
concept that is not incompatible with reservation status.
Furthermore, the fact that the public domain language in
Solem was not operative and did not use the word "restored"
should
430
be irrelevant under the majority's own analysis, since the
character of the lands as "part of the public domain" would be
"inconsistent" with their continued reservation status.
Ante, at 413, 416. Under the majority's present
interpretation, the opened lands could not have been both part of
the public domain and part of the reservation.
Solem,
however, concluded precisely the opposite.9
In light of this Court's unanimous reasoning in So
lem
and our common interpretation of the public domain as lands
"subject to sale ... under general laws,"
Kindred, 225 U.
S., at 596, therefore, I cannot conclude that the isolated phrase
"restored to the public domain" is an "[e]xplicit reference to
cession or other language evidencing the present and total
surrender of all tribal interests,"
Solem, 465 U. S., at
470. This language bears no relation to the "plain and unambiguous"
language that our precedents require or that we found controlling
in
DeCoteau and
Rosebud. Restoration to the public
domain simply allowed Indian lands to be sold, something we
repeatedly have said is never sufficient to establish an intent to
diminish.
B
Although the Court relies on the negotiation history of the 1902
Act and that of the Act of Mar. 3, 1903, ch. 994, 32 Stat. 998, to
support its conclusion, nothing in the negotiations with the Ute
Indian Tribe "unequivocally reveal[s] a widely held,
contemporaneous understanding" that the Uintah Res-
9 The Court never before has held that an isolated reference to
the public domain is sufficient to support a finding of
diminishment. In every case relied upon by the majority for this
contention, the relevant public domain language was accompanied by
express additional language demonstrating such intent. See
DeCoteau, 420 U. S., at 446 ("returned to the public domain,
stripped of reservation status") (emphasis added). Three of
the cases cited by the majority, in fact, discuss the same statute,
27 Stat. 62. See
Seymour, 368 U. S., at 354 ("
'vacated and restored to the public domain''') (emphasis
added);
Mattz v.
Arnett, 412 U. S. 481, 504, n.22
(1973) (same);
United States v.
Pelican, 232 U. S. 442, 445 (1914)
(same).
431
ervation boundaries would be diminished.
Solem, 465 U.
S., at 471. The ever-present Inspector James McLaughlin, who
negotiated the
Rosebud and
DeCoteau agreements that
this Court found to contain express language of disestablishment,
used no comparable language here.10 Instead, McLaughlin spoke
largely in terms of "opening" the reservation to use by
non-Indians.u The Indians similarly responded primarily in terms of
"opening" and opposed the proposed sale.12
The Court isolates a single comment by McLaughlin from the six
days of negotiations to argue that diminishment was understood. But
McLaughlin's "picturesque" statement that "'there will be no
outside boundary line to this
10 In negotiating the 1901 Agreement, for example, McLaughlin
explained to the Rosebud Sioux Indians that "'[t]he cession of
Gregory County' by ratification of the Agreement 'will leave your
reservation a compact, and almost square tract ... about the size
and area of Pine Ridge Reservation.'''
Rosebud, 430 U. S.,
at 591-592.
11 See,
e. g., Minutes of Councils Held by
Inspector James McLaughlin, U. S. Indian Inspector, with the Uintah
and White River Ute Indians, at Uintah Agency, Utah, from May 18 to
May 23, 1903, excerpted in App. to Brief for Duchesne County, Utah,
as
Amicus Curiae 333a, 336a (hereinafter Minutes) ("After
you have taken your allotments the remaining land is to be opened
for settlement"),
id., at 342a ("The surplus lands will be
opened to settlement"),
id., at 354a ("As certainly as the
sun rises tomorrow [your reservation] is to be opened"),
id., at 358a ("[I]t is not for you to say whether your
reservation is to be opened or not"),
id., at 359a ("Do not
lose sight of the fact that the reservation is to be opened"),
id., at 363a ("The reservation will certainly be
opened").
12 See,
e. g., id., at 339a ("When they put us on
the reservation ... they were not to open it"),
id., at 340a
("The president made this reservation here for the Indians and it
ought not to be opened up"),
id., at 343a ("I don't want you
to talk to us about opening our reservation .... We don't want this
reservation opened, and we do not want White people coming in among
us"),
id., at 344a ("[W]e do not want this reservation
thrown open"),
ibid. ("[T]hey told us that this land would
be ours always and that it would never be opened"),
id., at
346a ("We are not going to talk about opening our reservation"),
ibid. ("[W]e do not want to have the reservation thrown
open"),
id., at 351a ("I am on this reservation, and I do
not want this land thrown open"),
id., at 357a ("[T]he
Indians do not want the reservation opened").
432
reservation,'"
ante, at 417, cannot be understood as a
statement that the reservation itself was being abolished, since
the Uintah Valley Reservation unquestionably survived the opening.
McLaughlin's discussion, which went on to explain that each Indian
"will have a boundary to your individual holdings," Minutes 368a,
is more readily understood as a reference to a change in
title to the reservation lands, which clearly would have
occurred under the Acts, or to the fact that the lands within the
reservation boundary would be open to entry by non-Indians.
McLaughlin's statements immediately following this passage
strongly suggest that some Indian interests survived the opening.
In response to Indian concerns regarding lifting of the reservation
line, McLaughlin stated:
"You fear that you are going to be confined to the tract of land
allotted. That is not so, and I will explain a little more clearly
.... Your Agency will be continued just the same as now; the Agent
will have full jurisdiction just the same as now, to protect your
interests." Id., at 368a-369a.
Elsewhere, McLaughlin confirmed this statement: "My friends,
when you take your allotment you are deprived of no privileges you
have at the present time."
Id., at 365a.
Although the discussions regarding the allotments concededly are
subject to varying interpretations, none of them provides the type
of unequivocal evidence of an intent to diminish boundaries or
abolish all Indian interests that we require where statutory intent
to diminish the reservation is not express. On their face, the
negotiations establish that the 1902 Act would have done "no more
than open the way for non-Indian settlers to own land on the
reservation."
Seymour, 368 U. S., at 356. Moreover, the
record contains no evidence whatsoever of the Indians'
contemporaneous understanding regarding the Act of Mar. 3, 1905, 33
Stat. 1069, which is the operative Act in this case.
433
What the negotiations do show is that the Indians overwhelmingly
opposed the allotments. After six days of meetings between
McLaughlin and the Ute Tribe, only 82 of the 280 adult male Utes
agreed to sign the allotment agreement, see Letter of May 30, 1903,
from McLaughlin to the Secretary of the Interior, reprinted in H.
Doc. No. 33, 58th Cong., 1st Sess., 5 (1903), and McLaughlin
reported that the Ute Indians were "unanimously opposed to the
opening of their reservation."
Id., at 7. Although after
Lone Wolfv. Hitchcock, 187 U. S. 553 (1903),
Congress unquestionably had authority to terminate reservations
unilaterally, we relied heavily on the presence of tribal consent
in
Rosebud and
DeCoteau to find a contemporaneous
intent to diminish. In
Solem, by contrast, we held that the
surrounding circumstances "fail[ed] to establish a clear
congressional purpose to diminish the reservation" because the 1908
Act there "did not begin with an agreement between the United
States and the Indian Tribes." 465 U. S., at 476. To the extent
that the absence of formal tribal consent counseled against a
finding of diminishment in
Solem, therefore, the Ute
Indians' persistent withholding of consent requires a similar
conclusion here.
III A
Even if the 1902 Act's public domain language were express
language of diminishment, I would conclude that the Uintah Valley
Reservation was not diminished because that provision did not
remain operative in the 1905 Act. It was this latter Act that
actually opened the Uintah Valley Reservation to sale and
settlement, and that Act's language on its face does not support a
finding of diminishment. The Act provided in relevant part:
"That the time for opening to public entry the unallotted
lands on the Uintah Reservation in Utah having been fixed by law
... it is hereby provided that the time
434
for
opening said reservation shall be extended ... and
that the
manner of opening such lands for settlement and
entry, and for disposing of the same, shall be as follows: That
the said unallotted lands ...
shall be disposed of under the
general provisions of the homestead and town-site laws of the
United States and shall be opened to settlement and entry .... And
provided further, That ... [t]he proceeds of the sale of such
lands shall be applied as provided in the Act of Congress of May
twenty-seventh, nineteen hundred and two, and the Acts amendatory
thereof and supplemental thereto." 33 Stat. 1069-1070 (emphasis
added in part).
This language, which speaks only of opening the lands for entry
and settlement, is indistinguishable from that which we previously
have concluded "cannot be interpreted to mean that the reservation
was to be terminated."
Mattz, 412 U. S., at 504; see also
Solem, 465 U. S., at 473; and
Seymour, 368 U. S., at
356. Neither the Court nor the parties dispute this conclusion.
Nor did the 1905 Act preserve the 1902 Act's public domain
provision. In contrast to the Act of Apr. 21, 1904, 33 Stat. 207,
the 1905 Act did not open the lands "as provided by" the 1902 Act,
ibid., nor was it passed expressly to "carry out the
purposes of" the 1902 Act, as were both the 1903 and 1904 Acts. See
32 Stat. 997 and 33 Stat. 207. On its face, the 1905 Act preserved
only one portion of the earlier statutethat portion regarding
payment of the proceeds from the unallotted land sales. Other
provisions of the 1902 Act unquestionably were superseded, since
the 1905 Act restricted settlement of the opened lands to that
under "the general provisions of the homestead and town-site laws,"
33 Stat. 1069, rather than under the general laws as provided by
the 1902 Act. Thus, the plain language of the 1905 Act, which
actually opened the reservation, did
not restore the
unallot-
435
ted lands to the public domain, but simply opened the lands for
settlement.
Nothing in this case suggests that the 1902 Act established a
baseline intent to diminish the reservation like that the Court
confronted in
Rosebud. In that case, an original statute and
agreement with the Indians to "cede, surrender, grant, and convey"
all their interests in designated lands unequivocally demonstrated
a collective intent to diminish the Great Sioux Reservation. See
430 U. S., at 591, n. 8. Both the legislative history of two
subsequent allotment statutes and the presence of majority tribal
consent to those land allotments established that this original
intent to diminish was preserved. All parties agreed that the later
statutes "must have diminished [the] reservation if the previous
Act did." See
Solem, 465 U. S., at 473, n. 15.
By contrast, the 1902 Act contains no equivalent language of
diminishment, and none of the Acts at issue here were supported by
Indian consent. Prior congressional attempts to open the Uintah
Valley Reservation demonstrate that the requirement of the "consent
thereto of the majority of the adult male Indians of the Uintah and
the White River tribes" was central to the 1902 Act. 32 Stat. 263.
In 1894, 1896, 1898, and 1902, Congress enacted statutes requiring
Indian consent to open the Uintah Valley Reservation, but none of
these Acts became effective because that consent was not
forthcoming.13 After the passage of the 1903 Act and the
13 The Indian Appropriations Act of Aug. 15, 1894, ch. 290, §
20, 28 Stat. 337, authorized a commission to allot the Uncompahgre
Reservation unilaterally, but required that the same commission
"negotiate and treat" with the Uintah Valley Reservation Indians
for the relinquishment of their lands, "and if possible, procure
[their] consent" to such allotments. See § 22,
ibid. A House
Report explained that in contrast to the Uncompahgre Indians, who
had "no title to the lands they occupy" and occupied them only
temporarily, the Uintah Indians were "the owners of the lands
within the reservation, because [the enabling Act] ... provided
that the lands within the Uintah Reservation should be 'set apart
for the permanent
436
decision in
Lone Wolf, Congress dispatched Inspector
McLaughlin to negotiate the allotments with the Tribe. Throughout
this period, the Ute Tribe resisted the allotments, twice sending
delegations to Washington to voice their opposition. See
Ute
Indian Tribe v.
Utah, 521 F. Supp. 1072, 1113, 1125
(Utah 1981). When Congress finally opened the Uintah Reservation to
non-Indian settlement in 1905, it removed the public domain
language from the opening statute and severely restricted
non-Indian access to the opened lands. Even if the 1902 Act
contained express language of termination, then, the facts of this
case would much more closely mirror those in
Mattz, 412 U.
S., at 503-504, where Congress ultimately abandoned its prior
attempts to "abolish" the reservation in favor of simply opening
the lands to entry and settlement.
Concededly, nothing in the 1905 Act expressly repealed the 1902
Act's public domain language, and the 1905 Act could
settlement and exclusive occupation of the Indians.''' H. R.
Rep. No. 660, 53d Cong., 2d Sess., 1, 2-3 (1894), quoting Act of
May 5, 1864, ch. 77, 13 Stat. 63. In order to allot the Uintah
Reservation lands, therefore, it was "first necessary to obtain the
consent of the Indians residing thereon." H. R. Rep. No. 660, at 3.
The Act of June 10, 1896, ch. 398, 29 Stat. 341342, and the Act of
June 4, 1898, ch. 376, 30 Stat. 429, also conditioned opening of
the reservation on Indian consent. See
Ute Indian Tribe v.
Utah, 521 F. Supp. 1072, 1111-1114 (Utah 1981) (discussing
pre-1902 efforts to open the Uintah Reservation).
Congress rebuffed all subsequent attempts to allot the
reservation unilaterally, see Hearings before the Senate Committee
on Indian Mfairs, S. Doc. No. 212, 57th Cong., 1st Sess., 111
(1902) (proposal of Rep. Sutherland of Utah), or to sever large
portions of the reservation, see S. 145, 57th Cong., 1st Sess.
(1902), reproduced in S. Doc. No. 212, at 3-4 (proposal of Sen.
Rawlins of Utah). In hearings regarding the reservation in 1902,
Indian Mfairs Commissioner Jones testified: "There is a sort of
feeling among the ignorant Indians that they do not want to lose
any of their land. That is all there is to it; and I think before
you can get them to agree ... you have got to use some arbitrary
means to open the land."
Id., at 5. Congress did not heed
this advice, however, but again required the Ute Tribe's consent in
the 1902 Act.
437
be construed as either preserving that provision or replacing
it. Ordinarily under these circumstances, the canon that repeals by
implication are disfavored might require us to construe the later
Act's silence as consistent with the earlier statute. See
ante, at 416. The Court's invocation of this canon here,
however, "fails to appreciate ... that the standard principles of
statutory construction do not have their usual force in cases
involving Indian law."
Montana v.
Blackfeet Tribe,
471 U. S. 759,
766 (1985).
In
Blackfeet Tribe, the Court refused to rely on the rule
against repeals by implication under circumstances analogous to
those presented here. That case involved the question whether a
1924 provision authorizing States to tax tribal mineral royalties
remained in force under a 1938 statute which was silent on the
taxation question but which repealed all prior inconsistent
provisions. The State argued that because the 1938 statute neither
expressly repealed the earlier taxation provision nor was
inconsistent with it, the rule against repeals by implication
required a finding that the State's taxation power remained intact.
The Court rejected this argument as, among other things,
inconsistent with two fundamental canons of Indian law: that a
State may tax Indians only when Congress has clearly expressed such
an intent, and that "statutes are to be construed liberally in
favor of the Indians, with ambiguous provisions interpreted to
their benefit."
Ibid. Cf.
Carpenter v.
Shaw,
280 U. S. 363,
366367 (1930);
Choate v.
Trapp, 224 U. S. 665, 675
(1912).
A similar construction is required here. The 1905 Act does not
purport to fulfill the "purposes" of the 1902 Act nor to preserve
its public domain language; the Act instead simply opens the lands
for settlement under the homestead and townsite laws. Under these
circumstances, both the requirements that congressional intent must
be explicit and that ambiguous provisions must be construed in
favor of the Indians compel a resolution in favor of petitioner
Hagen. Although a "canon of construction is not a license to
disre-
438
gard clear expressions of tribal and congressional intent,"
DeCoteau, 420 U. S., at 447, no such clear expression is
evident here.
B
The legislative history of the 1905 Act supports the conclusion
that Congress materially altered the operative language in the 1902
Act by deleting the public domain provision. Like the 1902 Act, the
House version of the 1905 bill, H. R. 17474, provided "[t]hat so
much of said lands as will be under the provisions of said acts
restored to the public domain shall be open to settlement
and entry" under the general land laws. 39 Congo Rec.1180 (1905)
(emphasis added). Representative Howell of Utah, in a proposed
amendment that was
not ultimately adopted, sought to limit
non-Indian entry under this bill "to entry only under the
homestead, town-site, and mining laws of the United States."
Ibid. Howell's proposal, however, would have referred to the
public domain in two places:
"so much of said lands as will be under the provisions of said
acts restored to the public domain shall be open to
settlement and entry by proclamation of the President .... And
further provided, That for one year immediately following the
restoration of said lands to the public domain said lands
shall be subject to entry only under the homestead, town-site, and
mining laws of the United States." Ibid. (emphasis added in
part).
Senate bills later introduced by Senator Smoot of Utah, S. 6867
and S. 6868, 58th Cong., 3d Sess. (1905) (which ultimately were
adopted in relevant part as the 1905 Act), also limited the opening
to entry under the homestead and townsite laws but struck the House
bill's public domain language. In its place, S. bill 6867
stated
"[t]hat the time for opening to public entry the
unallotted lands having been fixed by law ... it is hereby provided
that the manner of opening such lands for settle-
439
ment and entry, and for disposing of the same shall be as
follows: That the said unallotted lands ... shall be disposed of
under the general provisions of the homestead and town site laws of
the United States" (emphasis added).
No subsequent attempt was made to reintroduce the public domain
language into the Senate bills. When the House and Senate bills
were submitted to the Conference Committee, the Committee again
struck the House version containing the public domain language and
replaced it with the Senate bill. See 39 Congo Rec. 3919 (1905).
Congress adopted this conference bill as the 1905 Act.
The legislative history thus demonstrates that Congress both
removed the public domain language from the 1905 Act and restricted
entry to the homestead and townsite laws. Although the Court
attempts to dismiss the altered language of the 1905 Act as
evidence that "Congress wanted to limit land speculation,"
ante, at 419, this reasoning explains only the presence of
the homestead and townsite limitation; it does not explain
Congress' simultaneous
deletion of the public domain
language. We do not know why this latter change was made. Possibly
Congress thought the language had no substantive meaning at all;
possibly the deletion was a response to the Indians' continued
withholding of consent, or it is possible that opening lands under
the homestead and townsite laws was incompatible with their
restoration to the public domain and thus to sale "under general
laws." See
Newhall v.
Sanger, 92 U. S., at 763. We do
know, however, that we must construe doubt regarding Congress'
intent to the Indians' benefit when we are left, as we are here,
without the "clear statement of congressional intent to alter
reservation boundaries," necessary for a finding of diminishment.
Solem, 465 U. S., at 478.
President Theodore Roosevelt's Proclamation shed no competing
light on Congress' intent, but simply summarized the language of
the allotment statutes. The operative portion
440
of the Proclamation declared that "all the unallotted lands"
would "in the manner hereinafter prescribed, and not otherwise, be
opened to entry, settlement and disposition under the general
provisions of the homestead and townsite laws." 34 Stat. 3120.
Thus, the crucial portion of the Proclamation under which the lands
actually were opened restricted the opening to the terms of the
1905 Act. Furthermore, all other contemporaneous Presidential
Proclamations regarding the reservation universally referred to the
1905 Act rather than the 1902 Act as the opening authority. See
Presidential Proclamation of July 14, 1905, 34 Stat. 3116 (Uintah
forest reserve); Proclamation of Aug. 3, 1905, 34 Stat. 3141
(Uintah reservoir and agricultural lands); Proclamation of Aug. 14,
1905,34 Stat. 3143 (townsites); Proclamation of Aug. 14, 1905, 34
Stat. 3143-3144 (reservoir lands).
C
Although contemporary demographics and the historical exercise
of jurisdiction may provide "one additional clue as to what
Congress expected" in opening reservation lands,
Solem, 465
U. S., at 472, in that case, we unanimously agreed:
"There are, of course, limits to how far we will go to decipher
Congress' intention in any particular surplus land Act. When
both an Act and its legislative history fail to provide substantial
and compelling evidence of a congressional intention to diminish
Indian lands, 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.
Mattz v. Arnett, 412 U. S., at 505; Seymour v.
Superintendent, 368 U. S. 351 (1962)."
465 U. S., at 472 (emphasis added).
Absent other plain and unambiguous evidence of a congressional
intent, we never have relied upon contemporary demo-
441
graphic or jurisdictional considerations to find diminishment.
Cf.
Rosebud Sioux Tribe v.
Kneip, 430 U. S. 584 (1977).
While these factors may support a finding of diminishment where
congressional intent already is clear, therefore, the Court
properly does not contend that they may be controlling where
Congress' purpose is ambiguous.
Aside from their tangential relation to historical congressional
intent, there are practical reasons why we are unwilling to rely
heavily on such criteria. The history of the western United States
has been characterized, in part, by state attempts to exert
jurisdiction over Indian lands. Cf.
United States v.
Kagama, 118 U.
S. 375, 384 (1886) ("[The Indians] owe no allegiance to the
States, and receive from them no protection. Because of the local
ill feeling, the people of the States where they are found are
often their deadliest enemies"). And the exercise of state
jurisdiction here has not been uncontested. The Constitution of the
Ute Indian Tribe, which was approved by the Secretary of the
Interior in 1937, defines the Tribe's jurisdiction as extending "to
the territory within the original confines of the Uintah and Ouray
Reservation," quoted in
Ute Indian Tribe, 521 F. Supp., at
1075. See also Ute Law and Order Code § 1-2-2 (1975), set forth in
Ute Indian Tribe, 521 F. Supp., at 1077, n. 8. More than two
decades ago,
amicus Roosevelt City agreed to the limited
exercise of tribal jurisdiction within its city limits. See
Memorandum of Agreement between Roosevelt City and the Ute Tribe,
Jan. 11, 1972, cited in
Ute Indian Tribe, 521 F. Supp., at
1077, n. 8. Federal agencies also have provided services to Indians
residing in the disputed areas for many years. In fact, after
reviewing the substantial jurisdictional contradictions and
confusion in the record on this question, the District Court in
Ute Indian Tribe concluded: "One thing is certain: the
jurisdictional history of the Uintah and Ouray Reservation is not
one of 'unquestioned' exercise of state authority."
Id., at
1146.
442
IV
One hundred thirty years ago, Congress designated the Uintah
Valley Reservation "for the permanent settlement and exclusive
occupation of" the Ute Indians. Act of May 5, 1864, ch. 77, 13
Stat. 63. The 1905 opening of the reservation constituted a
substantial breach of Congress' original promise, but that opening
alone is insufficient to extinguish the Ute Tribe's jurisdiction.
Nothing in the "face of the Act," its "surrounding circumstances,"
or its "legislative history" establishes a clear congressional
purpose to diminish the Uintah Reservation.
DeCoteau, 420 U.
S., at 445 (internal quotation marks omitted). I appreciate that
jurisdiction often may not be neatly parsed among the States and
Indian tribes, but this is the inevitable burden of the path this N
ation has chosen. Under our precedents, the lands where
petitioner's offense occurred are Indian country, and the State of
Utah lacked jurisdiction to try him for that crime. See 18 U. S. C.
§ 1151.
I respectfully dissent.
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