HAGEN v. UTAH
No. 92-6281
Supreme Court of the United States
Argued November 2, 1993-Decided February 23, 1994
510 U.S. 399
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
*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.
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 present-day 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-
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
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,
“[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
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
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 banc), 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.
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 banc 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-
“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
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. 465U. 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
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 non-Indian settlement and did not diminish it. 465 U. S., at 472-474. 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.” Ibid. 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.
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 (1990), cert. denied, 498 U. S. 1012 (1990).
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 Indi-
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
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
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 Cong. 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,
“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
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
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
So ordered.
“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
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
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,
Notes
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.
“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’ authority 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.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.
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“).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.
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).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 twenty-seventh, 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 twenty-seventh, 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.
“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.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 any one 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.
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 Affairs, 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).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
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,
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
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
In light of this Court‘s unanimous reasoning in Solem 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,
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
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,
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
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,
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.
Concededly, nothing in the 1905 Act expressly repealed the 1902 Act‘s public domain language, and the 1905 Act could
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, 366-367 (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
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 Cong. 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
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 Cong. 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
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-
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 the Ute Indian Tribe case 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.
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,
I respectfully dissent.
Government. Such an impractical pattern of checkerboard jurisdiction was avoided by the plain language of