*1 v. JIM UNITED STATES et al. 20, 1972* November No. 71-1509. Decided Per Curiam. Indians for leave Tribe of
The motion in 71-1509, granted. file amicus curiae No. brief as appeal judgment cases are here on from a These for the District of Utah declared District Court an to be unconstitutional. Jurisdiction Act by 28 §§ in is conferred C. 1252 and this Court 2101 (a). Utah,
In withdrew certain in Extension,” known “Aneth as the from domain and added them to no Though Reservation. lands, oil or was be on these believed to located provided such mineral be should resources produced per quantities, commercial centum “37% royalties the net derived accruing therefrom from tribal Provided, paid leases shall to the State Utah: That centum per of said shall be expended 37% by the State tuition of children Utah
*Together 71-1612, al., appeal with No. Utah et et al. v. Jim from the same court. building white or maintenance schools and/or *2 in 1 hereof,
of roads the lands described across section residing or for the of the Indians therein.” benefit royalties Stat. 1418. The of the remaining gen- 62%% by any were, implica- erated such tribal mineral leases tion, go tribe. passage Act,
After the oil and were dis- Extension, royalties covered on the and Aneth were di- pursuant vided to the statute. State of Utah cre- The ated an Indian manage expend Affairs Commission to and the received under funds State the Act. As time the on, went the the Act language came to create ad- problems ministrative regarding expenditure of the the funds through channeled the A report of the State. Senate on Committee Interior and Insular Affairs noted in 1967 that the word “tuition” in the 1933 Act had uncertainty created toas the breadth educational the program State was authorized to finance from the royalty report funds. The difficulty noted a in also dis- cerning precisely who properly beneficiary was “many funds, since Navajo families per- do not live manently within the lands set in aside but 1933, move back forth and between this area and other locations.” Rep. S. No. 710, 90th 1st Cong., (1967). Sess.,
To make the administration of these funds more flexi- ble spread royalties and to the benefits of the broadly more among community, the Congress enacted a statute in 1968 that directed the expend State to “for the health, education, gen- and 37%% eral welfare of the Navajo Indians residing San Juan County.” 82 Stat. 121. This statutory change expanded pool substantially, beneficiaries and a class action brought behalf of the residents of the Aneth Ex- tension, inter seeking alia a declaration that the statute anwas unconstitutional taking property just without compensation. The District Court concluded that plaintiffs, in the property rights
1933 Act vested certain pool its bene changed the 1968 with Act, and held unconstitutional.1 ficiaries, is in error. Con- of the District Court judgment The constitutionally protected 1933 did not create gress in appellees. Extension property rights reservation, to a and the leases which was added tribal royalties are leases. It is set- rise to mineral tribal give Indians have title the tled that “[w]hatever individuals, held although tribe, benefit of equal the common use all tribe for Hitchcock, Cherokee Nation members.” Nation, Cherokee Delaware Indians v. 193 U. S. *3 sure, pattern 1933 Act a of 136. To established the appellees which benefited more than distribution Indians on the Reservation.2 But it was power Congress well of to alter that distribu- within Fisher, In Gritts v. 224 tional scheme.3 this a of approved congressional enlargement pool Court who to benefit of Indians were from a distribution of an property. There, too, tribal earlier statute had estab- a more limited entitlement. lished “But it is the act contemplated of 1902 beneficiaries under the first enact- [the alone should receive allotments be the ment] participants the distribution of the remaining funds, lands, and also the tribe. No doubt 1 unreported. is The decision District Court 2 in effect, prop the 1933 Act remained While the District Court erly Indian comply insisted that Utah State Affairs Commission statutory with formula for Sakezzie v. disbursements. See Utah Supp. judgment); Comm’n, (declaratory 198 F. Affairs relief). Supp. 12 (supplemental 215 F. rights might no intimate view as to the a tribe have if Con We royalties gress deprive generated it of the value mineral were lands. tribal such, that, was the of the act. But our purport upon any did not confer them opinion, vested such as would disable from thereafter mak- Congress provision newly born ing admitting members the tribe to the allotment and distribution. The difficulty appellants’ with the contention is that treats the act of 1902 'it contract, as when is an act of and can have no Congress greater effect.’ ... It was but exertion of the an administrative control of the property Government over the tribal of tribal Indians, subject change Id., . . . .” at 648. Congress has not deprived of the benefits deposits mineral merely their tribal lands. It has chosen to re-allocate which flow 37%% through the State in a more equitable efficient and man- ner. This was well within to do. no “property,” in a Fifth As sense, Amendment was con- upon ferred residents of the Extension Act, no violation of the Fifth Amendment was effected by the legislation. The judgment of the District Court
Reversed. Mr. Justice Douglas, dissenting.
Plaintiffs below are a class of a Indians with member- ship 1,500. They a are mixture of and Piute in live an area of Reservation called the part made Extension, that in reservation a 1933 Act of Congress. 47 Stat. 1418. In 1968 Congress amended that Act, and the District Court for the District of Utah declared the amendment unconstitutional.
Prior to 1933 the Extension part was public United States. The area occupied was the direct ancestors of appellees. number Aneth Extension about
The Indians mix- primitive Navajos with some 1,500 people who are Sakezzie v. Utah ture of Piute blood. See Affairs Comm’n, They re- Supp. 218, 198 F. live relatively inaccessible area with an average mote Ibid. per family $240. annual income The Aneth County Extension is San Juan and the 1933 Act stated: further allotments “[N]o domain shall be made in County, San Juan Utah, nor shall further Indian homesteads be made in county.”
The white man was unconcerned about
domain
this
until oil was discovered; and then he became quite active.
By
June
1970, the
owing the Aneth Exten-
sion Indians had increased to $7,039,022.32. Of this,
$78,000 was used
pipe
water from the Aneth Extension
to the adjoining lands of a white man,
“improve-
an
ment”
incidentally aided the resident Indians.
Another $27,000 of Indian
spent
funds was
for the con-
struction of an airport and connecting road, which sub-
stantially benefited a white
private
man’s
dude ranch
operation, Some $10,000 or more
expended
for ad-
ministrative purposes by Utah.
These primitive Navajos wanted money used to purchase high-elevation ranges where might have summer grazing the livestock and thus realize a round- the-year livestock operation. Judge Christensen found members the Aneth Extension were the sole bene- ficiaries of the fund and that it should be administered with their wishes in mind. *5 between tensions and conflicts these
But there are Aneth Extension and who live on the primitive Navajos the elsewhere. 198 F. tribe who live members of Supp., at 221. with the Dis- comply
The did not State Commission sponsored but to extend the legislation trict Court’s order Judge benefits of the fund other Indians.1 Christensen solely ruled the fund was the benefit of again Aneth Extension. Sakezzie v. Utah State members Comm’n, Indian F. 12. Neither Supp. opin- Affairs promoted ion But the appealed. State Commission legislation to extend benefits of the Act to other Id., Indians. at 20. problems in administering Commission had
the fund reached and in 1968 the con- passed. tested amendment was 82 Stat. 121. This money amendment indicates that by be used must State of Utah “for and health, education, general welfare Indians residing San Juan County” may and “Contribution projects be made to and facilities within said exclusively area that are not for the benefits of in propor- beneficiaries hereunder tion to the to be benefits received therefrom said as determined the State of beneficiaries, Utah . . . .” Ibid. (Emphasis added.)
The 1933 title to gave Act the land and right to the tribe fund, to the but to the Navajo, admitting The Act Utah provided: to the Union “That people inhabiting proposed agree do State de- clare that forever disclaim all and title to the unappropri- ated lying within thereof; the boundaries and to all lying any within said owned limits held or Indian tribes; and that until the title extinguished thereto shall have been by the States, the same subject shall be and remain disposition of the United and said Indian lands shall remain jurisdiction under the absolute control United States.” 28
86 circum- I that under the
community.2 do not believe expand to power had the Congress of this case stances whole tribe. to include the the class of beneficiaries sep- Extension have been occupants the many Their claim community generations. for arate the transfer precedes possession continuous Government. of title the United States Secretary to of the Interior provision made the claim and, did, tribes on the land he their place other the membership. territory, would be based on Since who on the Aneth were vested those lived rights I can be extended to Extension, do not see how outsiders. Fisher, upheld
In Gritts v. 224 the U. S. Court the beneficiaries of certain expand to already enjoyed the children land to of those who Here the to those rights. expansion those is not limited But, important, Congress same blood line. more legal had a different relation to the Cherokees than appellees. does to the members of this tribe were “[T]he fully wards of the empowered, which was whenever it seemed wise do full so, assume control (47 1418), describing That Act Stat. after the Aneth Extension bounds, provided “be, public metes and that those lands and the hereby, permanently entry same are withdrawn from all forms of disposal for the benefit of such other Indians as Secretary may Provided, Interior see fit to settle thereon: That no further allotments of lands to Indians on the domain County, Utah, shall be made in Juan San nor shall further Indian county July 4, homesteads be made in under the Act of (23 C., 190). pro Stat. title sec. Should oil or paying quantities hereby duced in within the added to Navajo Reservation, per royalties accruing centum of the net 37% paid therefrom derived from tribal leases shall be to the State of Provided, per Utah: That said centum said shall be 37% expended by the State of Utah in the tuition of Indian children building white schools or maintenance of roads across and/or hereof, lands described section or for the benefit of the residing Indians therein.” who were to determine affairs, and their them
over
and distribute the tribal
members,
to allot
such
Id., at
The 1933 Act states
and funds . . . .”
permanently withdrawn
hereby,
the lands “are
entry or
for the benefit of
disposal
from all forms of
Secretary
Navajo and such other
as
Interior
see fit to settle thereon.”
*7
existing
1418. That would seem to freeze the
legal
in that
of the Aneth Extension to the in-
rights
area
habitants. The
effect
like a
legal
disclaimer on
seems
any
part
United States of
in either the
It
land or the minerals.
is difficult for me to see how
pay-
to
the scheme without
change
has
just compensation.
all,
ment
After
Indians are bene-
of
ficiaries of the Due Process Clause of the
Amend-
Fifth
Nation,
United States v. Creek
ment.
103;
295 U. S.
Tribe
States,
Shoshone
Indians v. United
Indians
beneficiaries of the Just
Chippewa
Indi-
tion
Clause of
Fifth
Amendment.
ans
States,
Minnesota v. United
479;
of
United States Klamath
Tribes,
and Moadoc
304 U. S.
Sioux Tribe
States,
Indians v. United
316 U. S.
of
317. When there is a
of
taking
Indian
lands,
compensation must take into account the mineral rights
the lands. United States v. Shoshone
part
which
are
Indians,
Tribe
If the 1933 Act had been granted producer of no one any oil, Standard Oil Co. say royalty assigned would dare could pay- oil subsequent to an consortium without just compensation. we made ment Whenever have public lands or therein to grants interests fact the Court has held that that Indians are wards and the United States a does not make the guardian Indian title defeasible. in Lane The Court v. Pueblo of Rosa, Santa U. S. held that were States lands from Indians, allowed take “[t]hat would not be an exercise guardianship, but an act of confiscation.”
In United Nation, States v. Creek 295 U. at 109- S., 110, the Court said:
“The
dependent
tribe was a
community
under
the guardianship of
the United
there-
fore
property
subject
and affairs
its
were
con-
*8
management
trol and
of that government. But this
power to control and manage was not absolute.
While extending to all appropriate
pro-
measures for
tecting and
advancing
tribe,
it was subject
to
limitations
in such
inhering
a guardianship and to
pertinent constitutional
It
restrictions.
did not en-
able the United
to give
States
the tribal
lands to
others,
appropriate
or to
them to its own purposes,
without
rendering,
assuming an obligation to
just compensation
render,
for them ..
. .”
present
cases are close to Shoshone
In-
Tribe of
v.
dians
United
“Confusion is to result from of the speaking wrong to the Shoshones as a destruction of their always in the sense was in the strict title. Title treaty had the Shoshones States, though inci- all beneficial occupancy with its right is needless are, . . those incidents it dents. . What is the occupancy right now. . . . The to consider di- attach, and one to which the incidents primary strangers appropriation with is an right vision of the tanto, in form.” pro substance, not land Id., 496. at Cook, Wall.
And from United States v. quoting added, Mr. Cardozo Justice occupancy
“The occupancy to be one of pledged them, but it is ‘as as that of the only, United States sacred ” Id., to the fee.’ at 497. express What remains after purpose “permanently of the Act withdraw” [to] disposal? lands from
Public usually subject disposition by lands are patent upon its control over the transaction issuance, patent judicial ceases and the can be set aside Michigan & Lumber proceedings courts. Land Rust, Robbins, Co. v. Moore v. 589; U. S. 96 U. S. Congress passed when Thus, legislation giving it was considered contract railroads, which could be broken sought when to use the lands as a Central water-power Payne v. site, Co., R. nor Secretary could the Pacific reclaim property. United States Northern Pacific *9 Co., R. U. 51; Fall, 256 S. Santa Fe Co. R. v. Pacific An 259 U. 199. entryman S. on a homestead claim not achieve title until does certain time work and con- ditions are met. 43 §§ U. S. C. Yet, 161-165. during this period he has the possession exclusive and use, patent unless was secured fraud. Patents
90 leases exploration but gas in oil and
are not issued affect But that does not are. 30 C. 226. fact § U. S. be done leases. That can power to cancel the comply lease, statute, with the of the lessee to failure American Pan § U. S. C. 188. regulations. and Pierson, Corp. 2d 649. Petroleum v. F. patented, title remains
Until are are patent Yet even before a issues claims States. if been a against “valid the United States there has discovery if claim, of mineral within the limits statutory mineral, require- the lands are still Co., Mining ments have been met.” Best v. Humboldt The devices for doing in, when it comes royalties in or gas lands, oil are numerous. White See Co., v. Sinclair Prairie Oil F. 2d 103. But (whether of oil and interests owners those interests be legal equitable) normally or have an interest separate from the apart land where the oil and gas are dis- Lane Hughes, covered. See 228 S. W. 2d E. Kuntz, Gas, Oil and cc. 38 and 42 Y. (1967); Kulp, seq. Oil and Gas et Rights (1954). § 10.36 It is strange indeed, (the when the law, guardian United States) allowed to (the do the wards Indians) by depriving them equitable of their interest the oil which had granted been reducing their share of the royalties granted.
The problems of typical case are this of those that have plagued the Indians from the beginning. We should put the cases for oral argument to make down certain these primitive Navajos receive the full benefit of the law.