STATE OF UTAH, ET AL., PETITIONERS V. UTE INDIAN TRIBE
   No. 85-1821
   In the Supreme Court of the United States
   October Term, 1986
   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Tenth Circuit
   Brief for the United States as Amicus Curiae
            TABLE OF CONTENTS
   Question Presented
   Statement
   Discussion
   Conclusion
                          QUESTIONS PRESENTED
   1. Whether the Uintah Indian Reservation in Utah was disestablished
or diminished by the Act of Mar. 3, 1905, ch. 1479, Section 1, 33
Stat. 1069, which provided that some unallotted lands of the
Reservation would be included in a national forest reserve and that
the remaining unallotted lands "shall be disposed of under the general
provisions of the homestead and town-site laws of the United States."
   2. Whether the Uncompahgre Indian Reservation in Utah was
disestablished by the Act of June 7, 1897, ch. 3, Section 1, 30 Stat.
87, which provided that all lands of the Reservation not allotted in
severalty to the Uncompahgre Ute Indians by a specified date shall "be
open for location and entry under all the land laws of the United
States" and which did not provide for the payment of any compensation
to the Uncompahgre Indians for those lands.
   This brief is filed in response to the Court's invitation to the
Solicitor General to express the views of the United States.
                               STATEMENT
   1.a. The Uintah Indian Reservation in northeastern Utah was
established by Executive Order in 1861 (Pet. App. 292a) and confirmed
by Congress in 1864 (Act of May 5, 1864, ch. 77, Section 2, 13 Stat.
63).  In an agreement approved by Congress in 1880, the White River
Utes ceded their interest in a reservation in Colorado and agreed to
accept allotments on the Uintah Reservation.  Act of June 15, 1880,
ch. 223, Section 1, 21 Stat. 200.  In the same agreement, the
Uncompahgre Utes ceded their interest in the Colorado reservation and
agreed to accept allotments elsewhere (21 Stat. 200).  The land
selected for the Uncompahgres was in Utah, adjacent to the Uintah
Reservation, and was set apart as the Uncompahgre Reservation by
Executive Order in 1882 (Pet. App. 308a).
   b. In 1888, with the consent of three-fourths of the Indians,
Congress "restored to the public domain" a 7,040-acre triangle on the
eastern edge of the Unitah Reservation that contained gilsonite
mineral deposits.  The land was to be sold and the proceeds held in
trust for the Tribes.  Act of May 24, 1888, ch. 310, 25 Stat. 157 et
seq.; see Pet. App. 165a-169a.
   c. In 1894, Congress directed the President to appoint a commission
to allot land on the Uncompahgre Reservation, after which the
unallotted lands would "be restored to the public domain." Act of Aug.
15, 1894, ch. 290, Section 20, 28 Stat. 337.  The 1894 Act provided
for settlers to pay $1.50 per acre for the opened land, but did not
provide for the proceeds to be paid to the Uncompahgres (Section 21,
28 Stat. 337).  The 1894 Act also directed the commission to negotiate
with the Indians on the Uintah Reservation for the acceptance of
allotments and "the relinquishment to the United States" of unallotted
lands (Section 22, 28 Stat. 337).  The differing treatment reflected
the view that the Indians on the Uintah Reservation owned their lands,
and that a cession agreement and compensation therefore were required
to open their surplus lands to settlement by non-Indians, but that the
Uncompahgres occupied their lands only temporarily, until they took
allotments under the 1880 agreement (Pet. App. 170a-171a & n.89,
181a-182a, 185a-186a & nn. 112, 113).
   In 1897, Congress once again mandated that allotments be made to
the Uncompahgres, but this time on either the Uncompahgre or Uintah
Reservation, because there was not enough suitable land on the
Uncompahgre Reservation alone (Pet. App. 173a, 177a-178a).  Congress
further stipulated that all lands on the Uncompahgre Reservation that
were not allotted by April 1, 1898 shall "be open for location and
entry under all the land laws of the United States." Act of June 7,
1897, ch. 3, Section 1, 30 Stat. 62.  Because of doubts about the
legality of allotments made after that deadline (ibid.), Congress in
the following year authorized the Secretary to approve 83 allotments
"within the former Uncompahgre Indian Reservation." Act of Mar. 1,
1899, ch. 324, Section 1, 30 Stat. 940-941.  The Secretary later
approved 584 allotments to Uncompahgres on the Uintah Reservation
(Pet. App. 179a-180a).
   d. In 1898, Congress directed the Secretary to appoint another
commission to negotiate an agreement for allotment of Uintah
Reservation lands and "cession to the United States" of unallotted
lands.  Act of June 4, 1898, ch. 376, Sections 1-2, 30 Stat. 429.
When the Uintah and White River Utes resisted, Senator Rawlins of Utah
introduced a bill that would have unilaterally reduced the size of the
Reservation (Pet. App. 196a-199a).  However, the diminishment bill did
not pass (id. at 199a), and Congress instead passed an Act in 1902
that provided for the Secretary to allot lands only with the consent
of the Indians, with the allotments to be made prior to October 1,
1903.  Act of May 27, 1902, ch. 888, Section 1, 32 Stat. 263-264.  The
Act further provided that "all the unallotted lands within said
reservation shall be restored to the public domain" and that the
proceeds of the sale of the land to homesteaders would be used for the
benefit of the Indians (ibid.).  Immediately thereafter, Congress
passed an amending resolution that, "(i)n addition to the alltoment in
severalty," directed the Secretary to set apart grazing lands "for the
use in common of the Indians of (the Uintah) reservation" (J. Res. 31,
32 Stat. 744).
   e. Subsequently, congress provided that if the Uintah and White
River Utes did not give their consent by June 1, 1903, the Secretary
was unilaterally to allot the amount of land specified in the 1902
Act.  Act of Mar. 3, 1903, ch. 994, Section 1, 32 Stat. 997-998.  When
the Uintah and White River Utes once again opposed the plan for
allotment and cession (Pet. App. 205a-208a), Congress extended the
opening date to March 10, 1905 (Act of Apr. 21, 1904, ch. 1402,
Section 1, 33 Stat. 207-208).  Finally, in 1905, Congress extended the
opening date to September 1, 1905, but specified that the unallotted
lands "shall be disposed of under the general provisions of the
homestead and town-site laws of the United States." Act of Mar. 3,
1905, ch. 1479, Section 1, 33 Stat. 1069-1070.  The 1905 Act also
authorized the President, before opening the Reservation, to:  (i)
"set apart and reserve as an addition to the Uintah Forest Reserve * *
* such portion of the lands within the Uintah Indian Reservation as he
considers necessary," and (ii) to set apart a reservoir site (33 Stat.
1070).  The proceeds from the sale of timber on the forest lands prior
to June 30, 1920 were to be paid to the Indians (ibid.).
   By a series of proclamations issued in the summer of 1905, some
1,010,000 acres "in the said Uintah Indian Reservation" were added to
the Uintah Forest Reserve (Pet. App. 327a);  townsites "in the Uintah
Indian Reservation Lands" were reserved for later disposal (id. at
339a);  56,000 acres "in the Unitah Indian Reservation" were withdrawn
from disposal for a reservoir site (id. at 344a);  and the remaining
unallotted lands "in said reservation" were opened to settlement under
the homestead laws (id. at 333a).  See Pet. App. 222a-223a, 326a-350a.
   f. In 1910, Congress authorized payment to the Uintah Indians of
$1.25 per acre for the lands that had been set apart for reservoir
purposes in 1905, adding that "(a)ll right, title, and interest of the
Indians in the said lands are hereby extinguished." Act of Apr. 4,
1910, ch. 140, Section 23, 36 Stat. 285.  Finally, in 1948, Congress
"extended" the "exterior boundary" of the Uintah Reservation (by then
known as the Uintah and Ouray Reservation) to include approximately
510,000 acres (the Hill Creek Extension) within the area of the
original Uncompahgre Reservation.  Act of Mar. 11, 1948, ch. 108,
Section 1, 62 Stat. 72.  See Pet. App. 186a-190a, 272a.
   2.a. Respondent Ute Indian Tribe is composed of the Uintah,
Uncompahgre, and White River Bands (Pet. App. 152a).  Effective
September 15, 1975, the Tribe adopted a Law and Order Code, which
defined the Tribe's territorial jurisdiction to be all lands within
the "'original confines of the Uintah and Ouray Reservation,'" as set
forth in the Executive Orders of 1861 and 1882 and the Acts of May 27
and June 19, 1902 and March 11, 1948, except as otherwise provided by
law (Pet. App. 118a n.8).  The local-government petitioners opposed
that territorial claim.  The Tribe then filed this suit in the United
States District Court for the District of Utah in October 1975,
seeking a declaratory judgment that all land within the original
boundaries of the Uintah and Uncompahgre Reservations -- including
land owned by non-Indians -- is "Indian country" under 18 U.S.C. 1151.
 /1/
   In an exhaustive opinion rendered on June 19, 1981 (Pet. App.
112a-291a), the district court held (i) that the original Uncompahgre
Reservation was disestablished by Congress in 1897 (id. at 169a-191a);
 (ii) that the Uintah Reservation was not diminished when it was
opened to settlement in 1905 (id. at 191a-245a, 258a-281a);  but (iii)
that the Uintah Reservation was diminished to the extent of the 1905
withdrawal of 1,010,000 acres for national forest purposes (id. at
245a-257a).  /2/
   b. A divided panel of the court of appeals ruled against the Tribe
on these three issues (Pet. App. 66a-111a).  However, on rehearing en
banc after this Court's decision in Solem v. Bartlett, 465 U.S. 463
(1984), the court of appeals held in a 5-2 decision that neither the
Uintah nor the Uncompahgre Reservation was diminished (Pet. App.
1a-62a).
                              DISCUSSION
   The court of appeals, applying the principles of this Court's
unanimous decision in Solem v. Bartlett, 465 U.S. 463 (1984),
correctly held that the Uintah Reservation was not diminished in 1905
by the opening of some unallotted lands to non-Indian settlement or by
the inclusion of other lands in the forest reserve.  That holding
accords with the view of the United States, both in Appawora v.
Brough, 431 U.S. 901 (1977), and in the courts below in this case, and
it does not conflict with any decision of the Utah courts or present
an issue of significant practical importance.  Although we believe
that the original Uncompahgre Reservation was disestablished in 1898,
the court of appeals' contrary holding does not warrant review.  The
court followed the analytical framework of Solem v. Bartlett, supra,
erring only in the particular result it reached, and, unlike in Solem,
there is no conflict with state court decisions.  Moreover, this
aspect of the decision below is of little practical importance,
because the land in the original Uncompahgre Reservation is largely
uninhabited and is primarily owned by the United States.  Review by
this Court, therefore, is not warranted.
   A. General Principles.  The Uintah and Uncompahgre Reservations
were opened to non-Indian settlement pursuant to surplus land Acts
passed in 1905 and 1897.  The Congresses that passed those Acts no
doubt anticipated the eventual demise of the reservation system.  But
the Court has "never been willing to extrapolate from this expectation
a specific congressional purpose of diminishing reservations with the
passage of every surplus land Act.  Rather, 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)." Solem, 465 U.S. at 468-469.  As
explained in Solem, the Court has established a "fairly clean
analytical structure" for distinguishing those surplus land Acts that
of their own force effected an immediate diminishment of the
reservation from those Acts that simply permitted non-Indians to
purchase land within an existing reservation and left to another day
the actual redrawing of its boundaries (id. at 470).
   The "first and governing principle" is that "(o)nce a block of land
is set aside for an Indian reservation and no matter what happens to
the title of individual plots within the area, the entire block
retains its reservation status until Congress explicitly indicates
otherwise." Solem, 465 U.S. at 470.  The most probative evidence of
congressional intent is the statutory language used to open the
reservation.  Language that explicitly refers to a "cession" or
otherwise "evidenc(es) the present and total surrender of all tribal
interests" in the opened area suggests that Congress meant to sever it
from the reservation (ibid.).  When such language is accompanied by an
unconditional commitment to compensate the tribe, "there is an almost
insurmountable presumption that Congress meant for the tribe's
reservation to be diminished" (id. at 470-471).  However, cession
language and unconditional compensation are not absolute prerequisites
to a finding of diminishment.  "When events surrounding the passage of
a surplus land Act * * * unequivocally reveal a widely held,
contemporaneous understanding that the affected reservation would
shrink as a result of the proposed legislation," the Court has
inferred that Congress so intended (id. at 471).  "There are, of
course, limits to how far (the Court) will go to decipher Congress'
intention in any particular surplus land act" (id. at 472).
Accordingly, if the text and legislative history of the Act fail to
reveal "substantial and compelling evidence of a congressional
intention" to diminish, the "traditional solicitude for the Indian
tribes" requires a ruling that the reservation remains intact (ibid.).
   B. Uintah Reservation.  Applying the foregoing principles, the
court of appeals correctly found an absence of "substantial and
compelling evidence of a congressional intention" to diminish the
Unitah Reservation in 1905 by either (1) the opening of certain
unallotted lands to non-Indian settlement, or (2) the addition of
other such lands to the forest reserve.
   1.a. The 1905 Act provided that the "unallotted lands on the Uintah
Reservation * * * shall be disposed of under the general provisions of
the homestead and town-site laws of the United States" (33 Stat.
1069).  This language does not refer to a "cession" or otherwise
"evidenc(e) the present and total surrender of all tribal interests"
in unallotted lands (Solem, 465 U.S. at 470).  Compare DeCoteau, 420
U.S. at 445 (citation omitted) (finding disestablishment where the
Indians did "'cede, sell, relinquish, and convey to the United States
all their claim, right, title, and interest in and to all the
unallotted lands'");  Rosebud, 430 U.S. at 583-584 (same).  Indeed,
the Act involved in Solem, which was held not to effect a
diminishment, also provided for the disposition of unallotted lands
under the "homestead and town-site laws" (Act of May 29, 1908, ch.
218, Section 2, 35 Stat. 461).  And in Seymour and Mattz, the Court
unanimously held that similar statutes did not terminate the
reservation, but merely "'open(ed) the way for non-Indian settlers to
own land on the reservation in a manner which the Federal Government,
acting as guardian and trustee for the Indians, regarded as beneficial
to the development of its wards'" (Mattz, 412 U.S. at 497 (quoting
Seymour, 368 U.S. at 356)).  See also Pet. App. 218a-219a (collecting
cases).  It was not unreasonable for the court of appeals to give a
similar construction to the 1905 Act that opened the Uintah
Reservation to settlement.
   b. Other features of the 1905 Act also weigh against a finding of
diminishment.  The Act did not provide for the payment of a sum
certain by the United States, which would have suggested an intent to
effect an immediate divestment of all tribal interests as a quid pro
quo.  DeCoteau, 420 U.S. at 445-446;  Rosebud, 430 U.S. at 598 n.20.
Rather, the Tribe was to receive payment for unallotted lands only if
and when they were sold, and in the meantime it retained an equitable
interest in them.  Ash Sheep Co. v. United States, 252 U.S. 159
(1920).  Nor did the 1905 Act incorporate a cession agreement between
the Tribe and the United States, such as those incorporated into the
1891 and 1904 Acts that were held in DeCoteau and Rosebud to have
effected a disestablishment (420 U.S. at 445;  430 U.S. at 597).  /3/
Although under Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the
consent of the Indians was not required, the "traditional solicitude
for the Indian tribes" (Solem, 465 U.S. at 472) counsels reluctance to
infer an intent to diminish where, as here, Congress was not acting in
substantial compliance with consent previously given by the Indians
and the Indians in fact steadfastly opposed the very concept of
cession.  Rosebud, 430 U.S. at 595 n.17, 606-607 & n.32, 610 & n.41;
Solem, 465 U.S. at 469 n.10, 470, 471, 477 & n.21, 478.  Finally, the
1905 Act contained no provisions extending liquor laws or granting
school sections to the State in the opened lands, which were found to
be relevant in Rosebud.  See 430 U.S. at 599-601, 613-614 & n.47.
   c. It also is significant that petitioners do not contend that the
Uintah Reservation was entirely disestablished by the 1905 Act (see
Pet. 5;  Reply Br. 1 nn. 2, 3), and such a contention would be refuted
in any event by subsequent administrative and legislative references
to the Reservation (see Pet. 28 nn. 45, 46) and by the 1948 Act, which
"define(d) the exterior boundar(ies)" of that Reservation (62 Stat.
72).  Petitioners' argument instead is that the Reservation was
diminished on a piecemeal basis by the opening of particular tracts to
settlement, leaving only the individual allotments and tribal trust
land as the remaining Reservation.  See Pet. 4, 7, 21-22, 25-28.  That
contention is inconsistent with Seymour, where the Court held that the
disposition of surplus lands under the homestead and town-site laws
did not reduce the Colville Reservation to the checkerboard pattern of
trust land that remained.  368 U.S. at 357-359.  See also Solem, 465
U.S. at 470;  Mattz, 412 U.S. at 497.
   Moreover, in DeCoteau and Rosebud, the relevant statutes precisely
described the areas that were found to have been removed from
reservation status.  /4/ The finding of diminishment in those cases
therefore comported with the requirement that "Congress (must) clearly
evince an 'intent . . . to change . . . boundaries'" (Solem, 465 U.S.
at 470, quoting Rosebud, 430 U.S. at 615 (emphasis added)).  By
contrast, Congress did not describe in the 1905 Act the areas of the
Uintah Reservation that were to be opened to non-Indian settlement and
that, in petitioners' view, were thereby removed from reservation
status.  Congress instead left the identification of opened lands to
the Secretary, after allotment and the setting apart of unspecified
lands for forest and reclamation purposes.  That approach does not
suggest that the 1905 Act itself formally redrew the Reservation's
boundaries.  On the other hand, the 1888 Act, which concededly did
remove the Gilsonite Strip from the Uintah Reservation, precisely
described the affected territory (Act of May 24, 1888, ch. 310, 25
Stat. 157 et seq.), and the 1910 Act, which explicitly extinguished
the Indians' interest in the reservoir lands (36 Stat. 285), referred
to a precise description of those lands in the Presidential
Proclamation of 1905 (34 Stat. 314 (Pet. App. 343a-347a)).
   d. Petitioners focus, however, not on the 1905 Act, but on the
earlier 1902 Act, which contemplated that unallotted lands on the
Uintah Reservation would be "restored to the public domain" (32 Stat.
264).  In petitioners' view, the quoted language is "unequivocal
language of disestablishment" (Pet. 14) that mandates a finding that
the Uintah Reservation was diminished.  See Pet. 13-21.  There are two
flaws in this contention.
   First, in Solem, the Court held that statutory language indicating
that the surplus lands were to be "part of the public domain" was
"hardly dispositive" (465 U.S. at 475), explaining that this reference
could have meant simply that the lands were opened to settlement (id.
at 475 n.17).  In so ruling, the Court specifically rejected the
argument of petitioners Duschesne County and Uintah County, who were
amici curiae in Solem, that a reference to the "public domain" has a
talismanic effect that renders it unnecessary to consider other
aspects of the statutory text, legislative history, and surrounding
circumstances (id. at 475 & n.16).  The court of appeals therefore did
not err in respecting petitioners' identical argument in this case.
See Pet. App. 5a, 11a-12a;  id. at 17a-19a (Seymour, J., concurring).
This is not to say that "public domain" language is irrelevant;  in
some instances it is highly probative.  See Seymour, 368 U.S. at 354.
The court of appeals simply concluded that here, as in Solem, such
language is not dispositive.
   Second, petitioners ignore the fact that the allotment and
restoration provisions of the 1902 Act on which they rely were
conditioned upon the Indians' consent (32 Stat. 263-264), which was
not forthcoming (Pet. App. 5a).  Congress then unilaterally opened the
unallotted lands pursuant to the 1905 Act, which did not carry forward
the language in the 1902 Act that would have restored those lands to
the "public domain." The 1905 Act instead provided that the unallotted
lands were to be "disposed of under the general provisions of the
homestead and town-site laws of the United States" -- language that
was held not to effect a disestablishment in Solem, Mattz and Seymour
-- and the decision below ultimately rests on this substitute
language.  See Pet. App. 5a-6a, 217a-235a.  /5/ Moreover, after
passage of the 1902 Act upon which petitioners rely, Congress provided
for the setting aside of 250,000 acres for a tribal grazing reserve
(32 Stat. 744) and directed that the proceeds from timber sales on the
forest lands be paid to the Ute Bands (33 Stat. 1070).  This
recognition of continuing tribal interests on lands other than
individual allotments reinforces the conclusion that the 1905 Act did
not carry forward any prior purpose to effect an immediate and
complete surrender of all tribal interests throughout the Reservation.
 Compare Solem, 465 U.S. at 474.  /6/
   e. Petitioners also err in relying (Pet. 27-30) on some post-1905
references to the "former" Uintah Reservation.  Even the dissenting
judges in the court of appeals found that the references to the
"current" and "former" status of the Reservation "evince() no
discernible Congressional intent one way or the other" (Pet. App.
57a-58a (Seth, J., dissenting)), and the district court reached a
similar conclusion based on its thorough review of the record (id. at
238a-245a).  Compare Solem, 465 U.S. at 418-419.  Moreover, the
references cited by petitioners were made at a time when Indian lands
were typically thought to include only those in which Indians held
some sort of property interest.  "Only in 1948 did Congress uncouple
reservation status from Indian ownership and statutorily define Indian
country to include lands held in fee by non-Indians, within
reservation boundaries." Solem, 465 U.S. at 468 (citing Act of June
25, 1948, ch. 645, 62 Stat. 757, 18 U.S.C. 1151).  In any event, the
notion that the Uintah is only a "former" Reservation is conclusively
refuted by Congress's statutory confirmation of that Reservation when
it added the Hill Creek Extension in 1948.
   Similarly, the fact that non-Indians accepted Congress's invitation
to settle on the Reservation (see Pet. 21-22) cannot accomplish a
disestablishment that Congress did not enact.  See, e.g., Washington
v. Yakima Indian Nation, 439 U.S. 463, 470 (1979) (only 3,074 of the
25,000 residents of the Yakima Reservation are tribal members).  Of
course, where the non-Indian presence so dominates that the area has
lost all Indian character, that eventuality may be some evidence of
what Congress intended when it passed the opening legislation.  Solem,
465 U.S. at 471-472, 480.  But in this case, far less than a majority
of the land within the Uintah Reservation has passed into private
non-Indian hands.  In addition, to attach significance to the pattern
of settlement would carve out a non-reservation enclave in the middle
of the Reservation that would be largely surrounded by land that
petitioners concede has retained its reservation status.  /7/
   f. In sum, a number of considerations support the concurrent
conclusion by the courts below that the evidence does not establish a
sufficiently clear and unequivocal intent by Congress to diminish the
Uintah Reservation when it was opened to non-Indian settlement in
1905.  That holding does not in any event warrant review by this
Court.  The en banc court of appeals simply applied the general
standards of Solem to the particular circumstances of the Uintah
Reservation, and its ruling does not present a conflict with state
court decisions, as there was in Solem (465 U.S. at 466) and DeCoteau
(420 U.S. at 430-431).  The Utah Supreme Court did render a decision
almost a decade ago that seemed to assume that these lands were no
longer part of the Reservation.  Brough v. Appawora, 553 P.2d 934
(1976).  But this Court, at the urging of the United States, vacated
that decision and remanded for further consideration in light of
Rosebud (431 U.S. 901 (1977)), and, as petitioners concede (Pet. 19
n.35), the diminishment issue was not resolved on remand.  If the Utah
Supreme Court nevertheless should adhere to its prior view in some
future case, notwithstanding the intervening decision in Solem, and
the exhaustive consideration of the issue by the courts below, there
will be time enough for this Court to grant review.
   Furthermore, there is no reason to believe that non-Indians on the
Reservation will be significantly affected by the decision below.
Since 1975, when the Tribe adopted the Law and Order Code that
precipitated this suit, the Court has made clear that Indian Tribes
may not assert criminal jurisdiction over non-Indians (Oliphant v.
Suquamish Indian Tribe, 435 U.S. 191 (1978)) and may assert civil
jurisdiction over non-Indians on fee land only where they enter into
consensual relationships with the tribe or its members or engage in
conduct that "threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the
tribe." Montana v. United States, 450 U.S. 544, 565-566 (1981).  There
is no indication that this standard would permit the Tribe to exercise
significant authority over non-Indians, because, as petitioners
concede (Pet. 5-6, 10-11, 21-22), non-Indians live almost exclusively
on fee lands that are removed from tribal concerns.  Nor is there any
basis for petitioners' assertion (id. at 10, 22) that the authority of
local governments is "significantly limited" by the holding below.
The reservation status of the opened area does not affect the local
governments' jurisdiction over non-Indian lands or their inhabitants,
and, irrespective of the decision below, those governments do not have
jurisdiction over Indian lands or Indians on those lands.
   2.a. The en banc court of appeals' holding that the Uintah
Reservation was not diminished by the inclusion of 1,010,000 acres in
the forest reserve also is consistent with Solem.  The relevant
language of the 1905 Act provided that "before the opening of the
Uintah Indian Reservation, the President is hereby authorized to set
apart and reserve as an addition to the Uintah Forest Reserve * * *
such portion of the lands within the Uintah Indian Reservation as he
considers necessary" (33 Stat. 1070).  As the en banc majority below
observed, "(n)othing in this paragraph amounts to explicit language of
cession or a total surrender of Indian interests" (Pet. App. 26a
(Seymour, J., concurring)).  To the contrary, Congress's directive in
the proviso to this section that the proceeds of timber sales from the
forest lands be paid to the Indians for the ensuing 15 years (33 Stat.
1070) confirms the continued tribal interests in those lands (Pet.
App. 7a), and the Indians were not actually compensated for the forest
lands until much later.  See Act of Feb. 13, 1931, ch. 124, 46 Stat.
1092 et seq.; Uintah & White River Bands of Ute Indians v. United
States, 139 Ct. Cl. 1 (1957).  Moreover, because the addition of the
lands to the forest reserve was merely an alternative to opening them
to non-Indian settlement, and because the opening did not diminish the
Reservation, there is no reason to construe the forest reserve
provision to have effected a diminishment.  It also is relevant that
although Congress in 1910 explicitly extinguished all of the Indians'
interests in the reclamation lands that were initially set apart
pursuant to the same paragraph of the 1905 Act, it did not enact a
similar statute extinguishing Indian interests in the forest reserve
lands.  The court of appeals therefore properly refused to construe
the 1905 Act to accomplish that very result (Pet. App. 7a;  id. at 28a
(Seymour, J., concurring)).
   b. It is true that the district court, unlike the court of appeals,
concluded that the forest reserve lands are not part of the Uintah
Reservation.  But the district court did not reach that result by
application of the analytical framework of this Court's
disestablishment cases.  Rather, the district court perceived an
inherent inconsistency between the inclusion of the lands in a forest
reserve and their continuation as part of an Indian Reservation (Pet.
App. 250a).  However, it is the position of the United States, which
owns and administers the affected lands, that there is no such
inherent inconsistency.  That position is entitled to considerable
deference by the courts.
   The Tribe's property rights in the forest lands of course have been
extinguished.  /8/ Further, the 1905 Act explicitly makes the lands in
question "subject to the laws, rules and regulations governing forest
reserves" (33 Stat. 1070).  It therefore is clear that "Congress
intended the lands to be federally managed as part of the existing
Uintah Forest Reserve" (Pet. App. 29a (Seymour, J., concurring
(emphasisin original)).  Accordingly, the Ashley and Uinta National
Forests have been and will continue to be managed for public use
pursuant to the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C.
528 et seq.; the Forest and Rangeland Renewable Resources Planning Act
of 1974, 16 U.S.C. 1601 et seq.; and the National Forest Management
Act of 1976, 16 U.S.C. 1600 et seq.  /9/ These statutes preempt tribal
jurisdiction at least to the same extent that they preempt state
jurisdiction (compare 16 U.S.C. 480), and the proceeds of timber sales
will continue to be shared with the State, not the Tribe, pursuant to
16 U.S.C. 500.  For this reason, and because the forest lands are
essentially uninhabited, "Indian tribal jurisdiction over the forest
reserve will permit the Tribe to govern its members (to the extent
consistent with federal law), but will not greatly affect non-Indians"
(Pet. App. 27a (Seymour, J., concurring)).  The Indian reservation
status of the forest lands therefore is of little practical
importance, and petitioners do not contend otherwise.  See Pet. 28-29.
   C. Uncompahgre Reservation.  1. On the surface, the court of
appeals' holding that the Uncompahgre Reservation was not
disestablished in 1897 also appears to rest on a plausible application
of Solem.  Thus, although the 1894 Act provided that unallotted lands
on the Uncompahgre Reservation were to be "restored to the public
domain" (Section 20, 28 Stat. 337), a reference to the "public domain"
is not necessarily dispositive under Solem (see pages 10-11, supra)
and that language was not in any event carried forward in the 1897 Act
(30 Stat. 87).  Of course, as the district court concluded (Pet. App.
182a), the unlimited provision in the 1897 Act for the opening of
surplus lands under "all the land laws of the United States" might be
viewed as the functional equivalent of the prior language that would
have "restored (the land) to the public domain";  but it was not
unreasonable for the court of appeals to conclude that the 1897 Act
did not contain explicit language of "cession" or reflect a "present
and total surrender of Indian interests" (Solem, 465 U.S. at 470).
See Pet. App. 11a-12a;  id. at 18a-19a (Seymour, J., concurring).
Furthermore, some of the circumstances underlying the passage of the
1897 Act that were relied upon by the court below -- e.g., the absence
of a cession agreement with the Uncompahgres, the lack of compensation
to them, and the failure of non-Indians to flood into the area (id. at
9a, 12a-13a;  id. at 19a-25a (Seymour, J., concurring)) -- might in
another setting require a finding that the reservation was not
diminished.
   In the end, however, the court of appeals' analysis is
unconvincing.  In our view, the circumstances of the Uncompahgre
Reservation contrast with those of the Uintah Reservation and "reveal
a widely held, contemporaneous understanding" that the Reservation
would be disestablished by the 1897 Act (Solem, 465 U.S. at 471).  We
therefore adhere to the view expressed in our memorandum in opposition
to the Tribe's motion to intervene in Andrus v. Utah, 446 U.S. 500
(1980), discussed by petitioners (Pet. 8 & n.18, 9-10 & n.22, 24-25),
that the Uncompahgre Reservation was disestablished in 1897.
   As the majority below acknowledged (Pet. App. 20a-21a (Seymour, J.,
concurring)), the absence of a cession agreement pertaining
specifically to the Uncompahgre Reservation and Congress's failure to
compensate the Uncompahgres for the disposition of surplus land to
settlers reflect the view that the Uncompahgres, unlike the Uintahs,
had only temporary permission to occupy the Reservation until
allotments were made to individual members.  See also id. at 170a-171a
& n.89, 182a-183a.  That premise undermines the notion that the
Uncompahgres had a tribal interest in the Reservation that survived
allotment.  Moreover, Congress's actions with respect to the
Uncompahgre Reservation in fact were based on a cession:  in the 1880
agreement, the Uncompahgres ceded all of their tribal interests in the
Colorado reservation and agreed to accept allotments at a new location
(Section 1, 21 Stat. 200).  The conclusion that the 1897 Act
disestablished the temporary reservation that was set apart to assure
the availability of land for those allotments therefore implements the
understanding that the Uncompahgres had already given up their claim
to a permanent tribal reservation in 1880.
   Similarly, the fact that non-Indians did not flood into the
Uncompahgre Reservation after opening does not suggest that the area
retained an Indian character.  The barren lands within the original
Reservation have at all times been essentially uninhabited by Indians
as well as non-Indians.  Indeed, Congress in 1897 authorized
allotments to be made to Uncompahgres on the Uintah Reservation
because it recognized that the Uncompahgre Reservation did not contain
sufficient land of a suitable quality to serve as a permanent home for
all of the Uncompahgres.  And in fact only 83 allotments were made to
Uncompahgres on the latter Reservation, as contrasted with 584 such
allotments on the Uintah Reservation.  See page 2, supra.  We do not
believe that Congress intended that the Uncompahgres nevertheless
would retain a tribal interest in the Reservation after the vast
majority of the Uncompahgres left.  Cf. United States v. Santa Fe Pac.
R.R., 314 U.S. 339, 358 (1941).
   Other factors reinforce this conclusion, including:  (i) Congress's
1899 authorization of 83 allotments on the "former Uncompahgre Indian
Reservation" in order to resolve doubts about the validity of such
allotments after the April 1, 1898 deadline for opening the
Reservation;  (ii) Congress's 1948 extension of the Uintah and Ouray
Reservation into an area that the 1948 Act referred to as the "former
Uncompahgre Indian Reservation" (Section 2, 62 Stat. 77), an
unnecessary act if the latter Reservation continued in existence;
/10/ and (iii) the absence of any acknowledgment by Congress or the
Department of the Interior since 1898 that the Uncompahgre Reservation
still exists (Pet. App. 182a-186a).
   2. Although the court of appeals erred in holding that the
Uncompahgre Reservation was not disestablished, we do not believe that
review by this Court is warranted.  There is no conflict with any
state court decision, and the reservation status of the lands is of
little practical importance because they are primarily owned by the
United States and are largely uninhabited.
   Petitioners assert (Reply Br. 4-5), however, that all current
federal permits for grazing in the area must be cancelled if the
Uncompahgre Reservation has not been disestablished, because the
Taylor Grazing Act provides that grazing districts may not be
established "in * * * Indian reservations" (43 U.S.C. 315).  We
disagree, for three reasons.  First, the 1948 Act extending the Uintah
and Ouray Reservation into the former Uncompahgre Reservation
expressly protects the rights of "grazing-district permittees"
(Section 1, 62 Stat. 77;  see H.R. Rep. 1372, 80th Cong., 2d Sess. 2,
4 (1948));  that specific statute must control over any general
exception in the Taylor Grazing Act.  Second, the Taylor Grazing Act
was passed in 1934, at a time when the term "reservation" might have
been thought to refer only to Indian trust lands (see Solem, 465 U.S.
at 468);  the exception in 43 U.S.C. 315 therefore need not be
construed to apply to public lands within the boundaries of an Indian
reservation, especially where, as here, virtually no trust land
remains.  /11/ Third, in the Federal Land Policy and Management Act of
1976, 43 U.S.C. (& Supp. II) 1701 et seq., Congress provided for the
issuance of permits for grazing on "public lands," a term defined as
"any land * * * owned by the United States * * * and administered by *
* * the Bureau of Land Management, * * * except * * * lands held for
the benefit of Indians" (43 U.S.C. 1702(e)).  Because the public lands
within the original Uncompahgre Reservation are not held for the
benefit of the Ute Tribe, they are available for grazing under 43
U.S.C. 1752.  /12/
                              CONCLUSION
   The petition for a writ of certiorari should be denied.  In the
alternative, because the United States did not take a position in the
court of appeals regarding the status of the original Uncompahgre
Reservation, the Court may wish to grant the petition, vacate the
judgment below, and remand for further consideration of that issue in
light of the views expressed herein.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   F. HENRY HABICHT II
      Assistant Attorney General
   LAWRENCE G. WALLACE
      Deputy Solicitor General
   EDWIN S. KNEEDLER
      Assistant to the Solicitor General
   ROBERT L. KLARQUIST
   BLAKE A. WATSON
      Attorneys
   NOVEMBER 1986
   /1/ The term "Indian country" is defined by 18 U.S.C. 1151 to mean,
inter alia, "all land within the limits of any Indian reservation
under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent," and all Indian allotments
(including those outside a reservation) to which Indian title has not
been extinguished.
   /2/ The district court also held that the Gilsonite Strip and
reclamation lands were separated from the Reservation (Pet. App.
165a-169a, 257a-258a).  The Tribe did not appeal those rulings, and
they are not at issue here.
   /3/ The Court stressed in Rosebud that the 1907 and 1910 Acts in
that case, which did not contain comparable cession language,
nevertheless gained the approval of a majority of the Indians (430
U.S. at 607, 610-611) and carried forward the intent of the 1904 Act,
which did incorporate a cession agreement (430 U.S. at 605-606,
608-609, 612-613).
   /4/ In DeCoteau, the tribe ceded the entire reservation (420 U.S.
at 445), and in Rosebud, the three Acts carved off from the
reservation lands situated in designated counties (430 U.S. at 585,
597, 608, 613).  See also DeCoteau, 420 U.S. at 439 & n.22 (listing
agreements that removed specifically defined territory).
   /5/ In the case of the Navajo Reservation discussed by petitioners
(Pet. 12 & n.27) and amicus Santa Fe Mining (Br. 10), the operative
opening statute itself specified that the land would be "restored to
the public domain." Act of May 29, 1908, ch. 216, Section 25, 35 Stat.
457.  Here, by contrast, it is the deletion of such language that is
significant.
   /4/ Contrary to petitioners' contention (Pet. 26-27), the
Presidential Proclamation of July 14, 1905 that opened the Reservation
to settlement did not interpret the 1905 Act to restore the land to
the public domain and diminish the reservation.  The reference in the
Proclamation to the "public domain" was merely one part of the
recitation in the preamble of the various Acts that preceded the
opening.  The last mentioned was the 1905 Act, which was accurately
described as providing for disposal of the lands under the "homestead
and town-site laws" (Pet. App. 332a).  Petitioners delete that
critical passage from their quotation of the Proclamation.
   Petitioners rely (Reply Br. 2-3) on the government's brief (at 28)
in Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972), for
the proposition that the United States previously has taken the
position in this Court that the Uintah Reservation consists only of
the land actually held in trust by the United States.  The
government's brief in that case, however, did not state that the
Reservation was so limited;  it simply referred to certain trust
property "on" the Reservation.  Moreover, Affiliated Ute did not
involve a question of the territorial scope of the Reservation, but
only a dispute over property within the Reservation that was held in
trust by the United States for the Tribe.  See 406 U.S. at 141.  The
portion of the government's brief to which petitioners refer argued
that the suit was barred by sovereign immunity insofar as it was
brought against the United States.  That discussion obviously had no
relevance here.  Petitioner's reliance (Pet. 8-9;  Reply Br. 2) on the
opinion in Affiliated Ute is misplaced for essentially the same
reasons.
   In a stipulation filed in the Court of Claims on January 4, 1954,
in Uintah & White River Bands of Ute Indians v. United States, 139 Ct.
Cl. 1 (1957), which concerned the Tribe's claim for additional
compensation for certain property, the Bands and the United States
stated that the Indians on the Uintah Reservation "received individual
allotments thereon pursuant to the Act of May 27, 1902, as amended,"
and that surplus lands were "restored to the public domain" pursuant
to the 1902 Act "and amendments thereto" (Stipulation at 4, 10).  That
stipulation carries little weight here.  The quoted passages do not
suggest that the 1902 Act was the sole basis for allotment and
opening;  to the contrary, they make clear that the substantive
provisions of the 1902 Act were "amended." Similarly, the reference to
the "public domain" (which does not appear in the 1905 Act) might have
reflected nothing more than a recognition that the lands were opened
to non-Indian settlement.  See Solem, 465 U.S. at 475 n.17.  In fact,
at a later point in the chronological recitation of legislation
pertaining to the Uintah Reservation, the stipulation accurately
stated that the 1905 Act provided for opening of the Reservation
"under the general provisions of the homestead and town-site laws" and
that the 1905 Act "made other changes in the provisions of the 1902
Act for the disposal of unallotted lands" (Stipulation at 12).
   The stipulation (id. at 15, 17, 23) also referred to the "former
Uintah Reservation" when describing lands included in the National
Forest or set aside for reclamation purposes.  That of course was an
accurate description of the reclamation lands, because the 1910 Act
extinguished all tribal interests in those lands (see pages 1-2, 10,
supra).  It was not an accurate description of the forest lands.
However, as with other such references (see page 12, supra), that
description is inconclusive:  because the question of territorial
boundaries was not involved;  because the distinction between
ownership and Territorial bounderies was not yet readily apparent
(Solem, 465 U.S. at 468);  and because the stipulation preceded this
Court's modern disestablishment decisions, which commenced with
Seymour in 1962.
   /8/ See page 16, supra;  Chippewa Indians v. United States, 305
U.S. at 479, 481-483 (1939);  United States v. Gemmill, 535 F.2d 1145
(9th Cir. 1976);  United States v. Pueblo of San Ildefonso, 513 F.2d
1383 (Ct. Cl. 1975).
   /9/ Several hundred thousand acres of the lands in the Ashley
National Forest also lie within the High Uinta Wilderness, a component
of the National Wilderness Preservation System designated by the Utah
Wilderness Act of 1984, Pub. L. No. 98-428, 98 Stat. 1657 et seq.  See
16 U.S.C. (Supp. II) 1132 note.  Those lands are managed pursuant to
the Wilderness Act, 16 U.S.C. (& Supp. II) 1131 et seq.
   /10/ The majority of the en banc court of appeals acknowledged that
this 1948 extension "seems irreconcilable with continued reservation
status" of the original Uncompahgre Reservation (Pet. App. 25a
(Seymour, J., concurring)).
   /11/ We have been informed by the Department of the Interior that
it has issued grazing permits on the Zia Indian Pueblo in New Mexico,
which also contains public lands.
   /12/ For similar reasons, the decision below will not affect mining
interests on the public lands in the area.  In addition, for the
reasons stated in our memorandum (at 6-7) in Andrus v. Utah, supra,
the reservation status of the land for jurisdictional purposes does
not have any effect on the ownership by the State of school sections
or other lands within the original Uncompahgre Reservation.  There is
no anomaly in the presence of state-owned lands in an Indian
Reservation (see National Farmers Union Ins. Co. v. Crow Tribe, No.
84-320 (June 3, 1985), slip op. 1), and in fact Congress recognized in
1948 that the Hill Creek Extension contained approximately 34,000
acres of state-owned land, as well as 3,338 acres of private and
county lands.  See H.R. Rep. 1372, supra, at 2.