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
   Supplemental Memorandum for the United States as Amicus Curiae
   Petitioners argue in their supplemental brief in response to the
brief filed on behalf of the United States as amicus curiae that
"hundreds of millions of dollars" may turn on the status of the
Uncompahgre Reservation.  Petitioners submit that, if the original
Uncompahgre Reservation was not disestablished, the Tribe might claim
all revenues from oil and gas leasing on federal lands within the
original boundaries of the Reservation under 25 U.S.C. 398b and that
the State accordingly should no longer receive 50% of those revenues
under 30 U.S.C. 191.  See Pet. Supp. Br. 2-3, 11-12.  In petitioners'
view, this possible consequence indicates that the Court should grant
review of the court of appeals' holding that the Uncompahgre
Reservation was not disestablished in 1897.
   Petitioners do not actually take the position that the Tribe will
receive all royalties, bonuses, and other income from such leasing,
and indeed petitioners presumably would argue otherwise if the Tribe
actually filed suit to establish a right to receive those revenues.
Their concern is only that the Tribe might claim such a right in some
future lawsuit, as it did in its motion to intervene (at 14-15) in
Andrus v. Utah, 446 U.S. 500 (1980).  In our view, any such claim by
the Tribe would be without merit.  The statutory allocation of the
revenues realized by the United States from mining on lands to which
the United States holds absolute title, and in which the Tribe has no
beneficial interest, is in no way affected by whether those lands are
within the original boundaries of an undiminished Indian Reservation
-- just as the location of other non-Indian lands within the
boundaries of an Indian reservation does not entitle the Tribe to a
share of the royalties and other income from mining on those lands.
   1. Section 1 of the Mineral Lands Leasing Act of 1920, as codified
at 30 U.S.C. 181, provides that "(d)eposits of coal, phosphate,
sodium, potassium, oil, oil shale, gilsonite * * * or gas, and lands
containing such deposits owned by the United States * * * shall be
subject to disposition in the form and manner provided by this chapter
* * * ." There are express exceptions in Section 1 for mineral lands
"in incorporated cities, towns, and villages and in national parks and
monuments," and for "lands within the naval petroleum and oil-shale
reserves";  but there is no such exception for mineral lands owned by
the United States that are situated within the boundaries of an Indian
reservation.  It follows that lands and mineral deposits within the
original boundaries of the Uncompahgre Reservation that are "owned by
the United States" are subject to leasing under the Mineral Lands
Leasing Act, whether or not the Reservation still exists.
   Under Section 35 of the Mineral Lands Leasing Act, as amended (30
U.S.C. 191), "(a)ll money received from sales, bonuses, royalties(,)
including interest charges collected under the Federal Oil and Gas
Royalty Management Act of 1982 (30 U.S.C. 1701 et seq.), and rentals
of the public lands under the provisions of this chapter * * * shall
be paid into the Treasury of the United States." Section 35 further
provides that 50% of such revenues "shall be paid by the Secretary of
the Treasury * * * to the State," which must use those funds for
planning, construction and maintenance of public facilities, and
public services, with priority given to localities that experience the
greatest impact from federal leasing activities.  30 U.S.C. 191.
There is no exception in this revenue-sharing provision for money
received from the leasing of those public lands that happen to be
located in the boundaries of an Indian reservation.
   Indeed, the absence of any such exception is underscored by the
Federal Oil and Gas Royalty Management Act of 1982, which is referred
to in 30 U.S.C. 191, quoted above.  That Act establishes procedures to
ensure, inter alia, "the prompt and proper collection and disbursement
of oil and gas revenues owed to the United States and Indian lessors
and those inuring to the benefit of the States." 30 U.S.C. 1701(b)(3).
 Under the revenue-sharing scheme of Section 35 of the Mineral Lands
Leasing Act, discussed above, revenues "inuring to the benefit of the
States" are those derived from lands other than those for which there
would be "Indian lessors." Because the United States owns outright the
public lands within the boundaries of the original Uncompahgre
Reservation, and therefore is the lessor of them, there is no "Indian
lessor" of these lands.
   Moreover, the 1982 Act expressly distinguishes between "Federal
land," which is broadly defined to mean "all land and interests in
land owned by the United States which are subject to the mineral
leasing laws," and "Indian lands," which are defined to mean "any * *
* interest in lands of an Indian tribe or an Indian allottee held in
trust by the United States or which is subject to Federal restriction
against alienation" (30 U.S.C. 1702(1) and (3)).  The public lands
within the boundaries of the original Uncompahgre Reservation are not
"lands of an Indian tribe * * * held in trust by the United States";
they are, rather, "land(s) * * * owned by the United States," and
therefore "Federal lands" for purposes of the 1982 Act.  Compare 43
U.S.C. 1702(e), discussed in U.S. Amicus Br. 21.  Congress confirmed
in the 1982 Act that the lands in which the Tribe has a revenue
interest are only those to which it might claim some equitable
interest, not "Federal lands," which are "owned" by the United States.
 Thus, the 1982 Act recognizes that the revenues from the leasing of
the latter inure to the benefit of the States, because it gives the
States certain rights with respect to information concerning, and the
collection of revenue from, the leasing of "Federal lands." By
contrast, a tribe's rights under the 1982 Act extend only to
information regarding revenues derived from the leasing of "Indian
lands," which, as noted above, include only those in which Indians
have an ownership interest.  30 U.S.C. 1732-1736.
   There accordingly is nothing in the Mineral Lands Leasing Act that
would deprive the State of its right to receive 50% of the revenues of
the Federal Government's mineral leasing of the public lands at issue
in this case merely because they are located within the boundaries of
what the Tenth Circuit found to be the still-existing Uncompahgre
Indian Reservation.
   2. Petitioners in fact do not suggest that there is any basis in
the Mineral Lands Leasing Act for the Tribe's urging of an "Indian
reservation" exception that would deprive the State of its share of
revenues under that Act and require that all such revenues be paid to
the Tribe.  Petitioners instead cite the Tribe's previous reliance on
25 U.S.C. 398b, which states that "(t)he proceeds from rentals,
royalties, or bonuses of oil and gas leases upon lands within
Executive order (Indian) reservations * * * shall be deposited in the
Treasury of the United States to the credit of the tribe of Indians
for whose benefit the reservation * * * was created * * * ." See Pet.
Supp. Br. 12-13.  However, this provision, which was enacted as
Section 2 of the Act of March 3, 1927, ch. 299, 44 Stat. 1347, has no
relevance here.
   a. The 1927 Act -- which in any event was superseded by the Indian
Mineral Leasing Act of 1938 (25 U.S.C. 396a et seq.) as regards leases
entered into after that date (see Montana v. Blackfeet Tribe, No.
83-2161 (June 3, 1985), slip op. 4) -- applied only to the leasing of
those lands within the boundaries of an Executive order Indian
reservation that were actually held for the tribe's benefit.  This is
evident from Section 1 of the 1927 Act, 25 U.S.C. 398a, which
authorizes oil and gas leasing of "(u)nallotted lands" within a
reservation created by Executive order "for Indian purposes." The term
"unallotted lands" refers to lands still held for "Indian purposes" --
i.e., held in trust for the benefit of the tribe.  That term does not
encompass lands within an Indian reservation, such as those within the
original Uncompahgre Reservation at issue in this case, that have been
restored to full and unencumbered public ownership.  See Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 151 (1982) (referring to lands
covered by the 1927 Act as "Indian lands").  The Tribe has no
remaining equitable interest in such lands, and it accordingly has no
claim to receive any revenue from the leasing of them.  Cf. 54
Interior Dec. 559, 560 (1934).
   It is significant in this regard that Section 1 of the 1927 Act (44
Stat. 1347) required the consent of the tribe concerned for the
leasing of any lands to which that Act applied.  See 25 U.S.C. 398a,
incorporating 25 U.S.C. 398.  Congress surely did not intend to impose
a precondition of tribal consent on the leasing of public lands, in
which the tribe had no interest.  The 1938 Indian leasing statute,
which since 1938 has governed the mineral leasing of all "unallotted
lands" on an Indian reservation (see Montana v. Blackfeet Tribe,
supra), likewise requires the consent of the tribe for the leasing of
all lands to which it applies.  25 U.S.C. 396b.  It follows that those
Indian leasing statutes -- including provisions for the tribe to
receive the royalties and other revenues -- do not apply to lands that
have been restored to public ownership.
   The legislative history of the 1938 Act further supports this
conclusion.  As the Court observed in Montana v. Blackfeet Tribe, the
1938 Act was intended to apply to "'tribal lands'" and to ensure that
Indians receive "'the greatest return from their property'" (slip op.
7 n.5, quoting S. Rep. 985, 75th Cong., 1st Sess. 2 (1937), and H.R.
Rep. 1872, 75th Cong., 3d Sess. 2 (1938)).  /1/ The lands within the
boundaries of the original Uncompahgre Reservation at issue here are
public lands, not "tribal lands" that are the "property" of the
Uncompahgre Indians.  Those lands therefore are not governed by the
1938 Act or its 1927 predecessor, upon which petitioners rely.
   b. The absence of any basis for a claim by the Ute Tribe to the
revenues from the leasing of public lands within the boundaries of the
original Uncompahgre Reservation is especially clear.  As we have
pointed out in our amicus brief (at 2, 18-19), the Uncompahgres were
not even to be compensated for the lands that were opened to
settlement pursuant to the 1897 Act (30 Stat. 62), because the
Uncompahgre Reservation was regarded as only a temporary reservation
pending the making of individual allotments.  This important fact led
us to oppose the Ute Tribe's motion to intervene in Andrus v. Utah,
even if, contrary to our submission therein (as here), the Uncompahgre
Reservation was not disestablished by the 1897 Act.  The Tribe argued
in Andrus v. Utah that if the Uncompahgre Reservation still existed,
the State was barred from making school indemnity selections within
the boundaries of that Reservation, by virtue of the provisions in the
general indemnity selection statutes and Section 6 of the Utah
Enabling Act forbidding the selection of lands "embraced in Indian * *
* Reservations." 43 U.S.C. 851-852;  28 Stat. 109.  The government
responded, however, that these statutory prohibitions do not apply "to
reservation acreage which has been unconditionally opened for entry
under the general land laws, without any restriction or obligation on
the part of the government to pay over or apply the proceeds of sale
to the benefit of the Tribe." See Memorandum for the Petitioners in
Response to Tribe's Motion to Intervene at 6, Andrus v. Utah, supra.
That also is the basis for the submission in our amicus brief in the
instant case (at 20-21) that the Indian reservation exception in the
Taylor Grazing Act does not apply to public lands within the
boundaries of an Indian reservation, and that the rights of Taylor
Grazing Act permittees in the area therefore are not affected by the
Tenth Circuit's holding that the Uncompahgre Reservation continues to
exist.  /2/
   3. For the foregoing reasons, we disagree with petitioners'
submission that the allocation of "hundreds of millions of dollars" of
oil and gas royalties and other revenues may turn on whether the
Uncompahgre Reservation was disestablished by the 1897 Act.  In any
event, this new argument by petitioners applies only to the
Uncompahgre Reservation, not the Uintah Reservation.  /3/ We have
suggested in our amicus brief (at 22) that as an alternative to
denying the certiorari petition, the Court may wish to vacate the
judgment below and remand the case to the court of appeals for further
consideration of the status of the Uncompahgre Reservation in light of
the views expressed by the United States, which were not previously
presented to the court of appeals.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   NOVEMBER 1986
   /1/ See also Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195, 199
(1985) (the 1938 Act applies to leasing of "tribal lands");  id. at
200 (emphasis added) (the tribe "agrees to sell the right to the use
of its lands for mineral production").
   /2/ The 1948 Act by which Congress added the Hill Creek Extension
to the Uintah and Ouray Reservation (Act of Mar. 11, 1948, ch. 108, 62
Stat. 72 et seq.) confirms that the Tribe has no interest in mineral
leasing within the boundaries of the original Uncompahgre Reservation
except on lands that were restored to tribal ownership by the 1948
Act.  Thus, even with respect to lands within the Hill Creek
Extension, the Act provides that "(v)alid rights and claims of
individuals initiated under the public-land laws or otherwise
involving any lands within said boundary shall not be affected by this
Act" (62 Stat. 77) -- a provision that preserves any claims, including
those for oil shale (see Andrus v. Shell Oil Co., 446 U.S. 657
(1980)), under the mining laws -- and that rights owned by the United
States in fissionable minerals and in certain other lands withdrawn
for oil shale purposes are specifically withheld from the transfer to
tribal ownership of lands within the Extension (62 Stat. 77).  The
necessary premise of these provisions must be that, but for the 1948
Act, the United States, not the Tribe, retained complete ownership of
all mineral rights in the original Uncompahgre Reservation.
   /3/ There apparently are no unreserved public lands on the Uintah
Reservation.  Mineral leasing in the National Forest portion of that
Reservation clearly is governed by the Mineral Lands Leasing Act of
1920.  See 30 U.S.C. 191;  U.S. Amicus Br. 17.