Young v. Felornia

• Citation: 244 P.2d 862,121 Utah 646
• Decision Date: 21 May 1952
• Docket Number: No. 7772,7772
• Parties: YOUNG et al. v. FELORNIA et al. (two cases).
• Court: Supreme Court of Utah

Page 862

244 P.2d 862

121 Utah 646

YOUNG et al. v. FELORNIA et al. (two cases).

No. 7772.

Supreme Court of Utah.

May 21, 1952.

Knox Patterson, O. A. Tangren, Salt Lake City, for appellants.

McKay, Burton, McMillan & Richards, Senior & Senior, Salt Lake City, Donald T. Adams, Monticello, for respondents.

McDONOUGH, Justice.

This is an appeal by defendants from a summary judgment. The motion for summary judgment was based upon the pleadings, the stipulations made at the pre-trial proceeding, and the issues as established by the court in its pre-trial order and summary.

The defendants are individual Navajo Indians who are joined in this action. They admit use and grazing of the lands involved, which are adjacent to the Navajo Indian Reservation, but allege that they do so under rights and continuous use handed down to them from time immemorial. They claim no fee in the lands but only exclusive grazing and possessory rights.

Plaintiffs are white livestock men who hold the land involved pursuant to permits issued under the Taylor Grazing Act and under lease from the State of Utah. They charged defendants with trespassing upon the land in dispute and asked for an injunction removing and restraining defendants from any further use of such land. Plaintiffs' motion for a summary judgment to this effect was granted by the lower court.

In respect to a summary judgment Rule 56(c), U.R.C.P. provides:

'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

Under this rule, it is clear that if there is any genuine issue as to any material fact, the motion should be denied.

In its conclusions of law the lower court decided:

'* * * that any such [aboriginal] rights, if any exist, have been forever barred, relinquished and disposed of by the provisions of the Treaty of 1868 and by the Act of Congress of March 1, 1933, which Treaty and Act have been set forth in the Findings of Fact herein, and by the fact that the United States, pursuant to an Act of Congress (Taylor Grazing Act) has assumed exclusive jurisdiction and control over the public domain lands heretofore described, and the State of Utah, pursuant to the enabling Act of this State, has acquired title to and jurisdiction over the state lands above described.'

An examination of the pleadings and pre-trial stipulations reveals that the only possible issue of fact on which there may be some dispute is whether defendants, who contend they are a separate and distinct band or clan of Navajos, were actually parties to and hence bound by the Treaty of 1868, 15 Stat. 667.

The Treaty of June 1, 1868 was between the United States 'and the Navajo nation or tribe of Indians, represented by their chiefs and headmen, duly authorized and empowered to act for the whole people of said nation or tribe'. Article 9 of the Treaty provided:

'In consideration of the advantages and benefits conferred by this treaty, and the many pledges of friendship by the United States, the tribes who are party to this agreement hereby stipulate that they will relinquish all right to occupy any territory outside their reservation, as herein defined, but retain the right to hunt on any unoccupied lands contiguous to their reservation * * *.'

Article 13 provides:

'The tribe herein named, by their representatives, parties to this treaty, agree to make the reservation herein described their permanent home, and they will not as a tribe make any permanent settlement elsewhere * * *.'

It has been uniformly recognized that aboriginal possession creates a possessory right legally enforceable against everyone but the United States. This right, however, may be extinguished by treaty. United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260; Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622; Buttz v. Northern Pacific Railroad Co., 119 U.S. 55, 7 S.Ct. 100, 30 L.Ed. 330; Beecher v. Wetherby, 95 U.S. 517, 525, 24 L.Ed. 440. The primary issue in this case is whether the 1868 treaty extinguished such aboriginal rights in the land outside the reservation. In construing Indian treaties we must follow the principle that such construction must be in the sense which would be understood by the Indians, and not according to the technical meaning of the words. 27 Am.Jur. 548 and cases cited therein.

Upon application of this rule the understanding between the parties was clearly that the Indians were to move upon the reservation and were not to claim any rights of occupancy upon any territory outside of the reservation for any purpose whatsoever except for the expressly reserved right to hunt upon such lands. The evident intent was to relinquish all aboriginal rights of occupancy, except the right to hunt. In United States v. Sante Fe Pacific Railroad Company, supra [314 U.S. 339, 62 S.Ct. 257], in referring to tribal rights outside an Indian reservation, the court stated:

'In view of the long standing attempt to settle the Walapais' problem by placing them on a reservation, their acceptance of this reservation must be regarded in law as the equivalent of a release of any tribal rights which they may have had in lands outside the reservation. They were in substance acquiescing in the penetration of white settlers on condition that permanent provision was made for them too. In view of this historical setting, it cannot now be fairly implied that the tribal rights of the Walapais is lands outside the reservation were preserved. That would make the creation of the 1883 reservation, as an attempted solution of the violent problems created when two civilizations met in this area, illusory indeed. We must give it the definitiveness which the exigencies of that situation seem to demand. Hence, acquiescence in that arrangement must be deemed to have been a relinquishment of tribal rights in lands outside the reservation and notoriously claimed by others.'

That this is the correct construction of the treaty in question is further indicated by the action of Congress in 1933, 47 Stat. 1418, when it created the Aneth Extension to the reservation and extinguished the rights of individual Indians to obtain the fee of land through allotments which had previously been allowed. T...