Dewey HEALING, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on Behalf of the Hopi Indian Tribe, Including All Villages and Clans Thereof, and on Behalf of Any and All Hopi Indians Claiming Any Interest in the Lands Described in the Executive Order Dated December 16, 1882, Plaintiff, v. Paul JONES, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe for and on Behalf of the Navajo Indian Tribe, Including All Villages and Clans Thereof, and on Behalf of Any and All Navajo Indians Claiming Any Interest in the Lands Described in the Executive Order Dated December 16, 1882; Robert F. Kennedy,Attorney General of the United States, on Behalf of the United States, Defendants
Civ. No. 579
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
210 F. Supp. 125
September 28, 1962
COUNSEL: [**1] John S. Boyden, Allen H. Tibbals and Bryant H. Croft, Salt Lake City, Utah, for plaintiff.Norman M. Littell, Washington, D.C., Joseph F. McPherson and Walter F. Wolfe, Jr., Window Rock, Ariz., for defendant.Charles A. Muecke, U.S. Atty., Phoenix, Ariz., Mary Anne Reimann, Asst. U.S. Atty., Phoenix, Ariz., for the United States.JUDGES: Before HAMLEY, Circuit Judge, and YANKWICH and WALSH, District Judges.OPINION BY: HAMLEYOPINION: [*128] We have for determination in this action the conflicting claims of the Hopi and Navajo Indians in and to Indian reservation lands situated in northeastern Arizona.These lands, consisting of some 2,500,000 acres, or 3,900 square miles, were withdrawn from the public domain under an executive order signed by President Chester A. Arthur on December 16, 1882. In that order it was provided that this rectangular tract, about seventy miles long and fifty-five miles wide, hereinafter referred to as the 1882 reservation, [*129] would be '* * * for the use and occupancy of the Moqui, and such other Indians as the Secretary of the Interior may see fit to settle thereon.' n1The Hopi Indian Tribe has long contended that it has the exclusive beneficial [**2] interest in all of the 1882 reservation for the common use and benefit of the Hopi Indians, trust title being conceded to be in the United States. The Navajo Indian Tribe contends that, subject to the trust title of the United States, it has the exclusive interest in approximately four-fifths of the 1882 reservation for the common use and benefit of the Navajo Indians, and concedes that the Hopi Indian Tribe has the exclusive interest in the remainder. The controversy resulting from these conflicting claims presents what has been characterized as 'the greatest title problem of the West.'Over a period of many years efforts have been made to resolve the controversy by means of agreement, administrative action, or legislation, all without success. The two tribes and officials of the Department of the Interior finally concluded that resort must be had to the courts. This led to the enactment of the Act of July 22, 1958, 72 Stat. 403. n2[*130] The 1958 act authorized the chairman of the tribal councils of the respective tribes, and the Attorney General on behalf of the United States, to commence or defend an action against each other and any other tribe of Indians claiming [**3] any interest in or to the 1882 reservation. As indicated in section 1 of the fact, the purpose of any such action would be to determine to rights and interests of these parties in and to the lands and to quiet title thereto in the tribes or Indians 'establishing such claims pursuant to such Executive order as may be just and fair in law and equity.'With respect to any interest which either tribe or the Indians thereof might be thus found to have in any of the lands, it was provided, in section 2, that the court would determine whether such interest is exclusive or otherwise. Under that section, lands in which either tribe or the Indians thereof are determined to have the exclusive interest shall thereafter, in the case of the Navajos, 'be a part of the Navaho Indian Reservation,' and, in the case of the Hopis, 'be a reservation for the Hopi Indian Tribe.'Under section 1 of the 1958 act, any such action was required to be heard and determined by a district court of three judges convened and functioning in accordance with the provisions of 28 U.S.C. ? 2284, with the right in any party to take a direct appeal to the Supreme Court from the final determination by such district court. [**4] Proceeding under this act, Willard Sekiestewa, then the duly authorized chairman of the Hopi Tribal Council of the Hopi Indian Tribe, commenced this action on August 1, 1958. He did so for and on behalf of the Hopi Indian Tribe including all villages and clans thereof, and on behalf of any and all Hopi Indians. Sekiestewa has since been succeeded, as chairman of the Hopi Tribal Council by Dewey Healing, and the latter has been substituted as party plaintiff.Two defendants were named in the complaint. One is Paul Jones, the duly authorized chairman of the Navajo Tribal Council of the Navajo Indian Tribe, including all villages and clans thereof, and on behalf of any and all Navajo Indians claiming any interest in the 1882 reservation.The other defendant named in the complaint is William P. Rogers, then Attorney General of the United States, on behalf of the United States. Rogers has since been succeeded, as Attorney General, by Robert F. Kennedy. The latter has been automatically substituted for Rogers as a party defendant by operation of Rule 25(d) Federal Rules of Civil Procedure, 28 U.S.C.A.Upon the filing of the complaint a district court of three judges was duly constituted [**5] in accordance with the provisions of ? 2284 referred to above. One change was subsequently made in the personal thereof, as noted in our previous opinion. Healing v. Jones, D.C., 174 F.Supp. 211, decided May 25, 1959. The court is now comprised of the judges named above.Defendant Jones Filed an answer, counterclaim and cross-claim. The Attorney General filed an answer in which two defenses were asserted.Under the 1958 act, the parties authorized to institute this litigation were empowered to name, as defendants, in addition to each other, 'any other tribe of Indians claiming any interest in or to the area described in such Executive order * * *.' The court has been advised by counsel that exhaustive studies and investigations conducted by field workers, historians and anthropologists have failed to reveal that any Indians or [*131] Indians tribes other than Hopis and Navajos have or claim any interest in any part of the 1882 reservation. Consequently the parties to this action, named above, did not join, as defendants, any other Indian or Indian tribe. Nor has any other Indian or Indian tribe sought to intervene or otherwise participate in this action, notwithstanding [**6] the fact that the pendency of this litigation has been given widespread publicity throughout the affected area.One of the defense set out in the answer of the United States is that this court is without jurisdiction because the rights and interests to be determined herein assertedly present a political and not a judicial question. Pursuant to Rule 12(d), Federal Rules of Civil Procedure, 28 U.S.C.A., and upon the motion of plaintiff, a hearing was first had on this defense challenging the jurisdiction of the court.At this hearing plaintiff and defendant Jones opposed the position of the Government and argued that the court had jurisdiction. We decided that this court had jurisdiction to hear and determine the action. The first defense of the United States was accordingly dismissed. Healing v. Jones, 174 F.Supp. 211. At the same hearing certain motions directed to the pleadings were argued and later disposed of as indicated in the opinion just cited. n3Extensive pretrial proceedings were thereafter had, including pretrial conferences on March 16, 1959 and August 18, 1960. The parties exchanged documents, submitted documents for identification, filed statements of contentions, [**7] and entered into stipulations concerning certain facts, issues of trial. It is exhibits, all in advance of trial. It is provided in pretrial order No. 2, filed March 28, 1960, that pretrial orders Nos. 1 and 2 shall supersede all pleadings and render moot all motions then pending directed against the pleading.As set forth in the pretrial orders, and as explained during pretrial hearings, plaintiff claims that all of the lands described in the order of December 16, 1882, are held in trust by the United States exclusively for the Hopi Indians and that neither the Navajo Indian Tribe, and its villages, clans or individual members, nor any other Indian or Indian tribe, village or clan, has any estate, right, title or interest therein or any part thereof. Plaintiff seeks a decree of this court quieting title to all of these lands in the United States in trust exclusively for the Hopi Indians.Plaintiff further claims that if (but not conceding) some Navajo Indians have been settled on the reservation lands in the manner provided in the order of December 16, 1882, rights and interests thereby acquired, if any, do not inure to the benefit of the Navajo Indian Tribe in general, or to [**8] Navajo Indians who have not been settled on the reservation, but only to the group of Navajo Indians actually settled therein and to their descendants, collectively. Plaintiff also claims that such rights and interests, if any, acquired by any such group of Navajo Indians, are not exclusive as to any part of the reservation area, but are co-extensive with those of the Hopi Indians.As set forth in the pretrial orders and explained during pretrial hearings, defendant concedes that the United States holds in trust for the Hopi Indians a portion of the executive order lands, described with particularity in pretrial order No. 2, and in paragraph 12 of the findings of fact herein. This tract, consisting of about 488,000 acres, is located in the south central part of the executive order reservation and includes the Hopi villages located on three mesas. Defendant claims that the remaining four-fifths of the 1882 reservation is held in trust by the United States exclusively for the Navajo Indian Tribe. In the map following this page of the opinion, the boundary [*132] lines of the area which defendant concedes to plaintiff, and other boundary lines to be discussed in this opinion [**9] are depicted.Defendant makes no claim on behalf of any member of the Navajo Indian Tribe or any Navajo Indian using or occupying, or who has or has had any claim of any right, title or interest in the use and occupancy of, any part, parcel or portion of the lands described in the order of December 16, 1882, except as beneficiary under the Navajo tribal claim. Defendant seeks a decree of this court quieting title to the lands in question in the United States in trust exclusively for the Hopi and Navajo Indian Tribes in accordance with his claims summarized above.The second defense of the Attorney General is that the United States is a stakeholder with respect to the lands, involved in this suit. For this reason, it was alleged, the Attorney General would take no position as between the claims of the other parties and would assert no claim on behalf of any other Indian or Indian tribe. Throughout the proceedings, after denial of its first defense, the Attorney General, represented by the office of the United States Attorney in Phoenix, Arizona has, consistent with its position as stakeholder, assumed the passive role of observer.The cause came on for trial at Prescott, Arizona, [**10] on September 22, 1960, and continued without interruption to its conclusion on October 22, 1960. Proposed findings of fact and opening briefs were filed by both parties followed by objections to the proposed findings of the opposing party, and reply briefs. The case was taken under submission on August 2, 1961, when the last of these briefs were filed.Concurrently with the filing of this opinion this court has entered its findings of fact, conclusions of law, and judgment herein.In the judgment it is declared and adjudicated that, subject to the trust title of the United States, the Hopi Indian Tribe, for the common use and benefit of the Hopi Indians, has the exclusive interest in and to that part of the 1882 reservation lying within the boundaries of land management district 6, as defined on April 24, 1943, which area is described in the judgment and in paragraph 41 of the findings of fact and is depicted on the map which is a part of this opinion. Accordingly, and pursuant to section 2 of the Act of July 22, 1958, it is declared and adjudicated in the judgment that such area is a reservation for the Hopi Indian Tribe.In the judgment it is further declared and adjudicated, [**11] subject to the trust title of the United States, that the Hopi Indian Tribe, for the common use and benefit of the Hopi Indians, and the Navajo Indian Tribe, for the common use and benefit of the Navajo Indians, have joint, undivided and equal interests in and to all of the 1882 reservation lying outside the boundaries of land management district 6 as defined on April 24, 1943. Accordingly, it is declared and adjudicated in the judgment that such area is a reservation for the joint use of the Hopi and Navajo Indian Tribes.The judgment quiets title in and to the 1882 reservation lands in accordance with the declared rights and interests of the respective tribes.In this opinion we will discuss the principal questions of fact and law which have been resolved by the findings of fact, conclusions of law, and judgment which we have entered. A chronological account of the Hopi-Navajo controversy, added as an appendix to this opinion, contains marginal references to the record.The rights and interests in the reservation lands, as declared and adjudicated herein, derive from the Executive Order of December 16, 1882, and from events which thereafter occurred. In this discussion we will [**12] first consider what rights and interests, if any, were acquired by the two tribes and their respective members as a result of the December 16, 1882 order standing alone. We will then discuss the extent to which any such rights and interests were enlarged or [*133] diminished, and similar rights, if any, were newly created, by reason of events occurring after that date.[SEE ILLUSTRATION IN ORIGINAL]Rights and Interests Acquired by Hopis on December 16, 1882It has been the consistent position of the Hopis from the outset of this litigation that the rights which they assertedly have in the reservation arise from the 1882 executive order standing alone, and are in no sense dependent upon a showing that they have been settled in the reservation by authority of the Secretary of the Interior.On the tentative assumption that the Hopis were correct in this it was ordered, during the pretrial proceedings, that, at the trial, the Navajos should proceed first with their case. It was further ordered [*134] that the question of whether the Hopis must, in order to establish their claim, prove they were settled in the reservation by the Secretary, would be argued and decided [**13] during the course of the trial after the basic evidence had been received but while there was still opportunity for the Hopis to produce additional evidence. This procedure was followed and during the trial the court ruled from the bench, after argument and conference, that whatever rights the Hopi Indians may have gained in and to the 1882 reservation are not dependent upon a showing that they had been settled therein by permission of the Secretary.Defendant has asked us to reconsider this ruling and we have done so.Such reconsideration logically begins with an analysis of the language of the Executive Order of December 16, 1882. It is recited in that order that the lands therein described are set apart 'for the use and occupancy of the Moqui, and such other Indians as the Secretary may see fit to settle thereon.'In the quoted clause the 'Moqui' Indians are specifically named, a comma appears after the word 'Moqui,' and there is no comma after the word 'Indians.' This specific reference to the Hopis, and the punctuation, indicate that the words 'as the Secretary may see fit to settle thereon,' do not apply to the Hopi Indians, but only to 'such other Indians.' Under this construction [**14] the Hopis would appear to have acquired immediate rights and interest in and to the 1882 reservation, without the need of any Secretarial action permitting them to 'settle' on the reservation.The language is not ambiguous in this regard and therefore reference to extrinsic aids to construction, such as the factual setting in which the 1882 order was issued, hardly seems necessary. We have nevertheless examined the evidence pertaining thereto and now state the background facts pertaining to the establishment of this reservation.No Indians in this country have a longer authenticated history than the Hopis. As far back as the Middle Ages the ancestors of the Hopis occupied the area between Navaho Mountain and the Little Colorado River, and between the San Francisco Mountains and the Luckachukas. In 1541, a detachment of the Spanish conqueror, Coronado, visited this region and found the Hopis living in villages on mesa tops, cultivating adjacent fields, and tending their flocks and herds. n4The level summits of these mesas are about six hundred feet above the surrounding sandy valleys and semi-arid range lands. The village houses, grouped in characteristic pueblo fashion, were [**15] made of stone and mud two, three, and sometimes four stories high. Water had to be brought by hand from springs at the foot of each mesa.The Hopis were a timid and inoffensive people, peaceable and friendly with outsiders. They were also intelligent and industrious although their working time was frequently interrupted by lengthy religious ceremonials and exhausting tribal dances. A government agency, with headquarters at Keams Canyon, twelve miles east of the nearest Hopi village, was established for the Hopis in 1863. They had no reservation prior to December 16, 1882, at which time they numbered about eighteen hundred.The recorded history of the Navajos does not extend as far back as that of the Hopis. They are mentioned in preserved journals for the first time in 1629. From all historic evidence it appears that the Navajos entered what is now Arizona in the last half of the eighteenth century. By 1854 there were at least eight thousand Navajos residing on the tributaries of the San Juan River, west of the Rio Grande and east of the Colorado, and [*135] between the 35th and 37th parallels of north latitude.In 1863, Col. Christopher ('Kit') Carson, led a force which [**16] rounded up several thousand Navajos and interned them at Bosque Redondo, on the Pecos River, near Fort Sumner, in New Mexico. In 1868, the United States entered into a treaty with the Navajos (15 Stat. 667), under which the latter were granted an extensive reservation to the east of what was to become the executive order reservation of December 16, 1882. The Navajos were thereupon released from their internment and moved to the newly-created Navajo Indian Reservation. Added to those who had escaped internment there were then between twelve and thirteen thousand Navajos. By 1882 the population of the Navajos had grown to about sixteen thousand.The western boundary of the Navajo Indian Reservation was defined with precision in an executive order issued on October 29, 1878. This line was later to become the eastern boundary of the 1882 reservation. Additional land was added to the southwest corner of the Navajo reservation by another executive order issued on January 6, 1880. With this addition, the Navajo reservation amounted to about 11,875 square miles, or 8,000,000 acres.Despite the vast size of the Navajo reservation at that time, this semi-arid land was considered incapable [**17] of providing support for all of the Navajos. Moreover, except for one or two places, the boundaries of the Navajo reservation were not distinctly marked. It is therefore not surprising that great numbers of the Navajos wandered far beyond the paper boundaries of the Navajo reservation as it existed in 1880. By 1882, Navajos comprising hundreds of bands and amounting to about half of the Navajo population had camps and farms outside the Navajo reservation, some as far away from it as one hundred and fifty miles.The Navajos were originally of an aggressive nature, although not as warlike as the Apaches. It was because they had become embroiled in a series of fights with white men that they were banished to Fort Sumner in 1863. By 1882, however, they had curbed their hostility to the Government and to white men and, in general, were peaceably disposed, except for their proclivity to commit depredations against the Hopis, as described below.Desert life made the Navajos sturdy, virile people, industrious and optimistic. They were also intelligent and thrifty. Some Navajos established farms which held them to fixed locations. In the main, however, they were semi-nomadic or migratory, [**18] moving into new areas at times, and then moving seasonally from mountain to valley and back again with their livestock. This required them to live in rude shelters known as 'hogans,' usually built of poles, sticks, bark and moist earth. It was their practice to keep these hogans on a permanent basis and return to them when it was practicable.The first suggestion that a reservation be created which would include any of the lands here in question came from Alex G. Irvine, United States Indian Agent at Fort Defiance, Arizona Territory. On November 14, 1876, he recommended to John A. Smith, Commissioner of Indian Affairs of the Department of the Interior, that a reservation of fifty square miles be set apart for the Hopis. He based this recommendation on the necessity of protecting the Hopis from Mormon pressure from the west and south, and of providing more living space for the Hopis because of increasing Hopi and Navajo population.Nothing came of Irvine's recommendation. On May 13, 1878, William R. Mateer, then United States Indian Agent for the Hopis, proposed that a reservation extending at least thirty miles along the Colorado River be set apart for the Hopis. This proposal [**19] drew no reaction from the Washington office. In his annual report of August 24, 1878, Mateer recommended the removal of the Hopis to a point on the Little Colorado River which was outside of what later became the 1882 reservation. His stated reason [*136] for making this suggestion was that the Navajos were spreading all over that country within a few miles of the Hopis and were claiming, as their own, the only areas where there was water and which were worth cultivating.A year later Commissioner Ezra A. Hoyt asked Mateer to make a further report concerning the latter's reservation suggestion, but Mateer resigned before making such a report. On March 20, 1880, Galen Eastman, Mateer's successor as Hopi Indian Agent, wrote to R.E. Trowbridge, the then Commissioner, recommending that a reservation be set aside for the Hopis. His proposal was for a reservation forty-eight miles east to west and twenty-four miles north to south, embracing the Hopi villages. Eastman expressed the view that the Hopis needed a reservation because the settlement of Mormons in the vicinity was 'imminent.'Nothing came of Eastman's recommendation and another two years were to pass before the matter [**20] of establishing a reservation in this area again became active. On March 27, 1882, J. H. Fleming, then the Hopi Indian Agent, wrote to the Secretary of the Interior recommending a small reservation for the Hopis. Such a reservation, he urged, should include the Hopi pueblos, the agency buildings at Keams Canyon, and sufficient lands for agricultural and grazing purposes. Fleming stated that such a reservation was needed to protect the Hopi Indians from the intrusion of other tribes, Mormon settlers, and white intermeddlers.On July 31, 1882, United States Indian Inspector C. H. Howard wrote to the Secretary recommending that a new reservation be set aside for the 'Arizona Navajos,' and for the Hopis whose seven villages would be encompassed within the proposed new reservation. On October 25, 1882, Howard made an extensive report to the Secretary renewing his suggestion that a joint reservation be established for the western Navajos and Hopis. n5The reservation envisioned by Howard was a much larger one than Fleming had in mind. His stated reason for including the Arizona Navajos in the reservation was to contain, within newly-created boundaries, the great number of Navajos who [**21] were then roaming far beyond their then established reservation. His reasons for including the Hopis were to protect them from encroaching white settlers and from being 'constantly overridden by their more powerful Navajo neighbors.' n6None of the recommendations for the establishment of a new reservation were immediately acted upon. In the meantime, however, Fleming wrote to the Commissioner under date of October 17, 1882, advising that he had expelled one Jer. Sullivan from the Hopi villages as an intermeddler. At the same time he requested authority for soldiers to expel E. S. Merritt, another white intermeddler. Since, however, the Hopis did not have a reservation, forcible removal of intermeddlers could not be ordered, and Fleming was so advised.On November 11, 1882, Fleming reported that he was having further difficulties with Sullivan, and stated that he would resign if a way could not be found to evict Sullivan and Merritt from the Hopi villages. On november 27, 1882, Commissioner Hiram Price sent a telegram to Fleming, asking him to describe the boundaries 'for a reservation that will included Moquis villages and agency and large enough to meet all needful purposes [**22] and no larger. * * *'[*137] Fleming responded by letter dated December 4, 1882, specifying, as boundaries of the proposed reservation, the lines which were later described in the Executive Order of December 16, 1882. The proposed reservation thus described was much smaller than had been suggested in the joint-reservation proposal submitted by Howard. n7 At that time there were about eighteen hundred Hopis and about three hundred Navajos living within the boundaries recommended by Fleming. n8On December 13, 1882, Commissioner Price wrote to H. M. Teller, Secretary of the Interior, transmitting a draft of an executive order in the exact form of the order issued three days later. In his letter of transmittal Price pointed out that the Hopis, then said to comprise '1813 souls' had no reservation, as a result of which it had been found impossible to extend them needful protection from white intermeddlers.On December 15, 1882, Secretary Teller forwarded the papers to President Arthur, stating that he concurred in the Commissioner's recommendation. The handwritten executive order of President Arthur, setting aside the reservation, was issued on the next day, the boundaries [**23] being depicted in the map which is a part of this opinion. On December 21, 1882, Price sent a telegram to Fleming advising:'President issued order, dated sixteenth, setting apart land for Moquis recommended by you. Take steps at once to remove intruders.' n9The circumstances which led to the issuance of this executive order, as stated above, demonstrate that the primary purpose was to provide a means of protecting the Hopis from white intermeddlers, Mormon settlers, and encroaching Navajos. It was thus intended that the Hopis would be provided such means of protection [*138] immediately upon the issuance of the executive order, no further proceedings by way of Secretarial settlement or otherwise being required. Hence the background facts fully confirm the opinion stated above, based on the language of the order, that the Hopis acquired immediate rights in the 1882 reservation upon issuance of the December 16, 1882 order.The right and interest thereby gained by the Hopis was the right to use and occupy the reservation, the title to the fee remaining in the United States. Spalding v. Chandler, 160 U.S. 394, 402-403, 16 S.Ct. 360, 40 L.Ed. 469. This included the right [**24] to the mineral resource as well as surface use and occupancy. n10 The right was in the Hopi Tribe for the use and benefit of individual members thereof. n11The right of use and occupancy then gained by the Hopi Indian Tribe extended to the entire area embraced within the December 16, 1882 reservation, and was not limited to the parts of that reservation then used and occupied by them. As indicated in Commissioner Price's telegram of November 27, 1882, the reservation was intended to 'include Moquis villages and agency and large enough to meet all needful purposes and no larger. * * *' Future as well as then present needs of the Hopis were thus intended to be met, thereby precluding a construction of the executive order which would confine Hopis to the area which they then actually occupied.Whether the right thus acquired by the Hopis to use and occupy the entire reservation was lost or impaired by subsequent inaction or abandonment on the part of the Hopi Indian Tribe is a matter to be discussed at a later point in this opinion. Likewise to be discussed below is the extent to which, if any, the right of use and occupancy acquired by the Hopis on December 16, 1882 was thereafter [**25] diminished in quantum or altered in character by action, if any, of the Secretary in permitting other Indians to settle on the reservation, or by reason of any other occurrence or course of events.The right of use and occupancy gained by the Hopi Indian Tribe on December 16, 1882, was not then a vested right. As stated in our earlier opinion, an unconfirmed executive order creating an Indian reservation conveys no right of use or occupancy to the beneficiaries beyond the pleasure of Congress or the President. Such use and occupancy may be terminated by the unilateral action of the United States without legal liability for compensation. The Hopis were therefore no more than tenants at the will of the Government at that time. See Healing v. Jones, 174 F.Supp. 211, 216, and cases there cited. No vesting of rights in the 1882 reservation occurred until enactment of the Act of July 22, 1958.Rights and Interests Acquired by Navajos on December 16, 1882Unlike the Hopis, the Navajos are not named in the Executive Order of December 16, 1882. Therefore if they have any rights of use and occupancy in the reservation such rights must have been acquired under the provision of that order [**26] reading: 'and such other Indians as the Secretary may see fit to settle thereon.'The words 'may see fit' connote a future contingency, to be fulfilled only by an exercise of discretion. Those words [*139] thus contemplate the exercise of Secretarial authority which did not come into existence until the executive order was issued.In the exercise of that authority the Secretary might, sometime after December 16, 1882, permit to be settled in the reservation Navajos who were actually residing there when the executive order was issued. Conceivably the Secretary could, in his discretion, relate those rights back to the day the executive order was issued. But, in any event, rights thereby acquired would be predicated upon the act of the Secretary on some date subsequent to December 16, 1882, in granting such permission, nunc pro tunc or otherwise, and not upon the force and effect of the executive order independent of such Secretarial action.Defendant appears to concede that any right or interest the Navajos have in the 1882 reservation must arise from Secretarial action pursuant to the 'such other Indians' clause of the executive order. n12But it also appears to be defendant's [**27] position that the administrative intent in using this 'such other Indians' clause was to grant immediate rights of use and occupancy to Navajos then living in the reservation area. Thus defendant expresses the view, in its objections to plaintiff's proposed findings of fact, that the recommendations of C. H. Howard for the establishment of a joint Western Navajo-Hopi reservation were accepted. Defendant also calls attention to official expressions in later years that it was the intention in creating the reservation to set aside the lands for the use and occupancy of the Hopi Indians and for the use and occupancy of the Navajos then living there, in addition to permitting the continued settlement of Navajos within the discretion of the Secretary.There seems to be an inconsistency between defendant's concession that any rights the Navajos have in the 1882 reservation result from the 'such other Indians' clause of the executive order, and his contention that the purpose in issuing the order was to grant immediate rights to Navajos as well as Hopis. As previously pointed out, the 'such other Indians' clause could only be effectuated by subsequent Secretarial action. Its only effect [**28] was to provide the Secretary with authority to take future action, in his discretion, permitting Indians other then Hopis to settle on the reservation. Indians whose rights in the reservation are dependent upon future official acts of discretion can hardly be said to have gained immediate rights by virtue of an executive order which authorizes the exercise of such discretion.But aside from this seeming inconsistency, and apart from the conclusion expressed above that the words of the executive order disclose no such intention, the extrinsic evidence refutes, rather than supports, the argument that it was intended by the executive order to grant Navajos immediate rights in the 1882 reservation.As stated above, J. H. Fleming had recommended a small reservation for the exclusive use of the Hopis while C. H. Howard had recommended a very much larger reservation for the joint use of the 'Arizona Navajos,' and the Hopis. Defendant contends that since the Secretary was expressly authorized to settle other Indians in the reservation, Fleming's recommendation for an exclusive Hopi reservation was necessarily rejected. Defendant also calls attention to the fact that in his letter of December [**29] 21, 1882, the Secretary advised Fleming that his recommendations 'as regards the boundaries' had been accepted, nothing being said of Fleming's recommendations that the reservation be for the exclusive use of the Hopis. It is argued from these [*140] two circumstances that Howard's recommendation for a joint Arizona Navajo-Hopi reservation was accepted.In our view, the conclusion reached by defendant is not warranted by the circumstances relied upon. The most significant fact in connection with the creation of the 1882 reservation is that the boundaries described in the executive order were those which Fleming supplied in response to the instruction: 'for reservation that will include Moquis villages and agency and large enough to meet all needful purposes and no larger.' Had administrative officials intended to create a joint Western Navajo-Hopi reservation they would not have confined it to an area which Fleming thought was no larger than necessary for the Hopis, and rejected the larger area recommended by Howard for a joint reservation.It is true that Fleming's recommendation for an exclusive Hopi reservation was not completely accepted. It was rejected to the extent [**30] that the Secretary was authorized to settle other Indians in the reservation in the future. This explains why Fleming was advised that his recommendations 'as regards the boundaries' had been accepted, no like advice being given with respect to his recommendation for an exclusive Hopi reservation. But this falls far short of establishing an intention to accept Howard's recommendation for a joint reservation from the outset. The latter possibility is negated not only by the fact that Fleming's restricted area recommendation was accepted, but by the fact that the Navajos were not named in the executive order.It is probable that Howard's recommendations had nothing whatever to do with the insertion of the 'such other Indians' clause in the executive order. This was a customary provision in executive orders of that period. In 1 Ex. Order 195, I Kappler 916, dated April 9, 1872, a reservation was set aside for named bands of Indians in Washington Territory, 'and for such other Indians as the Dept. of Interior may see fit to locate thereon.' Between that date and December 16, 1882, as shown by plaintiff's exhibit No. 263, nine additional orders, setting aside reservations for named [**31] Indian tribes, contained a similar provision.On the other hand, when it was decided to give immediate reservation rights to specific Indians then residing in the area, in addition to the name Indians for whom the reservation was principally created, officials knew how to make this clear in an executive order. Just four days prior to the issuance of the order of December 16, 1882, an executive order was issued establishing the Gila Bend reservation. It was therein recited that the reservation was created for the '* * * Papa-go and other Indians now settled there, and such other Indians as the Secretary of the Interior may see fit to settle thereon.' (Emphasis supplied.) The treaty of 1838 with the New York Indians, 7 Stat. 550, provided that the Senecas should have, 'For themselves and their friends, the Cayugas and Onondagas, residing among them, the easterly part of the tract set apart for the New York Indians.' n13There is another circumstance, extrinsic to the 1882 executive order itself, which tends to indicate that it was not the purpose to grant immediate rights to the Navajos by issuance of that order. By the Navajo treaty of 1868, 15 Stat. 667, the Navajos agreed that [**32] they would relinquish all right to occupy any territory outside the reservation thereby created, retaining only the right, under limited circumstances, to hunt on contiguous unoccupied lands.[*141] The Navajos were released from this undertaking to the extent that specifically described additions were made to the original Navajo reservation by executive orders issued on October 29, 1878, and January 6, 1880. n14 Had it been the intention of the administration to grant Navajos, by issuance of the 1882 order, an immediate further release from their treaty obligations, we would expect to find some mention of the Navajos in that order.We have not lost sight of defendant's reliance upon official expressions of opinion, made at various times, subsequent to 1882, with regard to the administrative intention in creating that reservation. In its briefs defendant relies upon two statements of this kind. One of these was the statement of Superintendent Leo Crane in his report of March 12, 1918. The other was the statement of Acting Solicitor Felix N. Cohen, in his opinion of June 11, 1946, 59 I.D. 248, 252. But there were also many other similar official expressions to the effect [**33] that it was the intention, in establishing the 1882 reservation, to give Navajos then living in the described area, rights of use and occupancy co-equal with those granted the Hopis. n15 On the other hand there are a [*142] number of official expressions to the contrary effect. n16In our view, such comments and expressions of opinions, even though coming [*143] from officials of the same agency in the course of their administrative duties, are not competent evidence of what other officials, back in 1882, intended when they framed and obtained issuance of the executive order. Probably none of those commenting officials had access to as complete a record concerning the events and circumstances leadint up to issuance of the 1882 order as is now before this court. As indicated by the words which they used in making these comments, several of these officials were apparently unaware of the exact language of that order. We must draw our own conclusions based on our understanding of the facts as they have been presented in this case, on our analysis of the language of the order, and on our view of the applicable law. n17Our conclusion, based on all of the considerations [**34] discussed above, is that neither the Navajo Indian Tribe nor any individual Navajo Indians, whether or not living in the reservation area in 1882, gained any immediate rights of use and occupancy therein by reason of the issuance of the executive order.Settlement of Navajos in the 1882 ReservationIt follows from what has just been said that if the Navajos have acquired any right or interest in that reservation it must have been because, subsequent to December 16, 1882, they were settled therein pursuant to the applicable provision of the executive order of that date. n18 The exact language of the provision in question reads as follows: '* * * and such other Indians as the Secretary of the Interior may see fit to settle thereon.'In discussing the meaning of this provision, defendant directs attention to the character of the occupancy which must be shown to exist in order to establish that 'other' Indians were settled in the reservation. Indians other than the Hopis are to be regarded as settled in the reservation, he argues, if they use and occupy such lands for residential and incidental purposes, in Indian fashion, and if such use and occupancy is of a continuing and permanent [**35] nature as opposed to a transitory or temporary occupancy.In reaching this conclusion defendant applies, by analogy, the meaning which courts have attached to the terms 'settlement' and 'settled' as used in the Homestead Law, 43 U.S.C. ?? 162,, 166. n19 He also likens the character of use and occupancy by 'other Indians' contemplated by the executive order to that which must be found to exist in order to establish aboriginal Indian title. n20 Defendant [*144] thus seems to make the test exclusively one as to the character of the use and occupancy, no mention being made of the role the Secretary must play in order for 'other Indians' to obtain rights as settled Indians.Plaintiff, on the other hand, places the emphasis entirely upon the part the Secretary must play. He argues that however continuing and permanent the use and occupancy of other Indians may be, they cannot acquire rights in the 1882 reservation as 'settled' Indians, unless the Secretary has, in the exercise of his discretion, 'settled' them in the reservation. Plaintiff contends that neither the meaning attached to the terms 'settlement' or 'settled,' as used in the Homestead law, n21 or the character of use [**36] and occupancy associated with aboriginal Indian title, is helpful in construing the words 'to settle,' as used in the Executive Order of December 16, 1882. n22 Plaintiff concedes that his research has thrown but little light on the question of what act the Secretary must perform to 'settle' other Indians on the 1882 reservation, and believes defendant's research has been similarly unproductive.We are of the opinion that neither the test as to the character of use and occupancy of 'other' Indians, as suggested by defendant nor the test as to whether the Secretary acted to 'settle' other Indians, as suggested by plaintiff, is alone sufficient in determining whether 'other' Indians have been 'settled' on the 1882 reservation. In our view, Indians other than Hopis acquired rights in the 1882 reservation under the executive order provision in question if: (1) Indians used and occupied the reservation, in Indian fashion, as their continuing and permanent area of residence, and (2) the undertaking of such use and occupancy, or the continuance thereof, if undertaken without advance permission, was authorized by the Secretary, exercising the discretion vested in him by the executive order. [**37] The general principle just stated provides a starting point for our discussion. It does not dispose of all the legal problems to be encountered in determining whether the Secretary in fact settled any Navajos in the 1882 reservation. Nor does it provide any guidance as to what effect Secretarial settlement of Navajos, if any were settled, had on pre-existing Hopi rights in the reservation. These are questions which can best be dealt with as they emerge during the course of the following discussion.The evidence is overwhelming that Navajo Indians used and occupied parts of the 1882 reservation, in Indian fashion, as their continuing and permanent area of residence, from long prior [*145] to the creation of the reservation in 1882 to July 22, 1958, when any rights which any Indians had acquired in the reservation became vested. n23The Navajo population in the reservation steadily increased during all of this period. In 1882 there were only about three hundred Navajos living in the area. By 1900 this had increased to 1,826. In 1911 the Navajo population was estimated to be two thousand, and by 1920 this had grown to between twenty-five and twenty-seven hundred. The Navajo [**38] population climbed to 3,319 by 1930, and to about four thousand by 1936. About six thousand Navajos were living within the reservation in 1951. By 1958, the Navajo population probably exceeded eighty-eight hundred.The use and occupancy of the reservation area for residential purposes by a constantly increasing number of Navajos, is therefore definitely established, and we have so found. But the critical question is whether such use and occupancy was by authority of the Secretary, granted in the exercise of the discretion lodged in him by the executive order to 'settle' other Indians on the reservation.None of the twenty-one Secretaries of the Interior who served from December 16, 1882 to July 22, 1958, or any official authorized to so act on behalf of any of these Secretaries, expressly ordered, ruled or announced, orally or in writing, personally or through any other official, that, pursuant to the discretionary power vested in him under the executive order he had 'settled' any Navajos in the 1882 reservation, or had authorized any Navajos to begin, or continue, the use and occupancy of the reservation for residential purposes.In the absence of any order, ruling, or announcement [**39] of this kind, defendant produced evidence on the basis of which, he urged, such Secretarial act or acts of discretion should be implied. This evidence relates to such matters as the extent to which administrative officials acquiesced in the known presence of Navajos in the reservation and the reasons therefor; the extent to which Government assistance was rendered to Navajos in the reservation as compared to that rendered to Hopis and the reasons therefor; and the issuance of official pronouncements concerning the respective rights of the Hopis and Navajos in the reservation and the officially-asserted basis for rights so recognized. Plaintiff produced counter evidence of the same general character.We turn to a discussion of that evidence.For a period of nearly six years following issuance of the executive order, the known presence of a relatively small number of Navajos in the 1882 reservation was neither condemned nor sanctioned by administrative officials. These Navajos were not officially labeled as interlopers and no effort was made to eject them from the reservation. On the other hand, they were not publicly recognized as having any rights in the reservation and they [**40] were provided with no assistance or supervision of the kind which, on a modest scale, was being supplied to Hopis. n24We conclude that nothing occurred during this initial period which would warrant the finding and conclusion that [*146] the Secretary had, by implication, settled Navajos in the reservation pursuant to the 'such other Indians' provision of the 1882 executive order.On September 20, 1888, Inspector T. D. Marcum reported to the Office of Indian Affairs that Hopis were complaining of Navajos 'on their reservation,' with flocks and herds, destroying Hopi crops and ruining their grazing lands. On September 26, 1888, Herbert Welsh, Corresponding Secretary of the Indian Rights Association, wrote to William F. Vilas, Secretary of the Interior. He told the Secretary of complaints he had received from Hopis concerning injuries inflicted upon them as a result of 'the continual intrusions and depredations' of the Navajos. Welsh suggested that a military force be sent to the area for the purpose of holding a council with the Navajos to inform them that the depredations must cease.These two reports were turned over to R. V. Belt, Chief, Indian Division, for consideration. [**41] On October 100, 1888, Belt sent a memorandum to the Secretary expressing approval of the recommendation that a military expedition be sent to the area. He concluded this memorandum with these words:'The Moquis reservation was established by Executive Order of December 16, 1882, for the Moqui and such other Indians as the Secretary of the Interior may see fit to settle thereon. It comprises no lands set apart for the Navajoes and no Navajoes have been settled thereon by the Department.'On the same day on which this memorandum was written, it was received by Secretary Vilas. Later the same day, he wrote to the Secretary of War requesting that a company of troops be dispatched to the area with instructions 'to remove all Navajo Indians found trespassing with their herds and flocks on the Moqui reservation and to notify them that their depredations must cease and that they must keep within their own reservation.' In this communication Secretary Vilas also made the identical statement that Belt had made to the effect that no Navajos had been settled in the reservation.We do not agree with defendant that the Secretary's statement should be discounted because of the expedition with [**42] which he acted after receiving the memorandum from Belt. To the extent, however, that this statement represents an expression of opinion by the Secretary as to the meaning of the 1882 order, or as to what some previous secretary did or did not do in the way of settling Navajos in the reservation, the quoted statement is not competent evidence. Our view as to this is identical with that expressed earlier in this opinion in discussing whether the Navajos gained rights in the reservation on December 16, 1882.But Vilas had been Secretary of the Interior since January 16, 1888. His statement therefore represents the best possible evidence that between January 16, 1888 and October 10 of that year, when the statement was made, no Navajos were settled in the reservation by Secretarial authorization. We so find and conclude.The military expedition which Secretary Vilas requested reached the reservation in December, 1888. Due to the fact that winter was coming on, Navajo movement in the area adjacent to the Hopis was at a minimum. Forcible removal of Navajo families at that time of year would also have caused great hardship. For these reasons the officers in charge of this expedition [**43] determined not to force an immediate evacuation. Instead, they confined their action to a show of force and a warning that depredations must cease. n25[*147] Officials in the Office of Indian Affairs were advised of this development and were apparently content to let the military proceed under the new plan. Defendant believes that, in view of this acquiescence, it should be inferred that the Secretary had impliedly settled these resident Navajos in the reservation.We do not agree. Only a short time before, the Secretary had expressly stated that he had not settled any Navajos in the reservation. There were no official pronouncements during the months which followed indicating a change of position. The decision of the military against forcible ejection of Navajos was not based on any supposed rights the Navajos had acquired in the reservation by settlement or otherwise. This considerate treatment was professedly motivated, as Indian Office officials knew, by a desire to avoid inflicting hardships on Navajo families, where not immediately necessary to protect the Hopis. If there was any other motivation it was probably the desire to avoid antagonizing the aggressive [**44] Navajo Indian Tribe at a time when the Government was seeking to maintain peace with the Indians of the West.In the summer of 1889, there were renewed complaints of Navajo encroachments upon the Hopis, the theoretical twelve-mile limit prescribed by Col. Carr apparently being disregarded by the Navajos. From the beginning to the end of 1890 there were further complaints of this kind. The Hopis living at Oraibi, the largest Hopi village, ceased sending children to the Keams Canyon school, partly because of the Government's failure to protect the Hopis from the Navajos.In February, 1890, Commissioner T. J. Morgan instructed Charles E. Vandever, the Navajo Agent at Gallup, New Mexico, to immediately take energetic and proper steps, without endangering the peace, to keep the Indians '* * * within the limits of their reservation, and to return roving Indians to the reservation.' The only Indians excepted from this order were those who had settled upon lands outside of their reservation for the purpose of taking homesteads. No Navajos had moved into the 1882 reservation for that purpose, because that area had not been opened for homesteading.It follows that, under Commissioner Morgan's [**45] instructions, all Navajos then in the 1882 reservation were subject to removal. They could not have been removed if they had been settled in the reservation by Secretarial authority. Hence the instructions indicate that from June 10, 1889, when Morgan became Commissioner, to February, 1890, when the instructions were issued, no Navajos had been settled in the 1882 reservation by Secretarial authority.On December 16, 1890, special agent George W. Parker sent a telegram to the Commissioner stating that a company of soldiers should be sent at once to remove 'trespassing' Navajos from among the Hopis, and to arrest rebellious Oraibi Hopis who refused to send their children to the Keams Canyon school. The Commissioner telegraphed General McCook at Los Angeles and, on December 17, 1890, a military expedition was sent on its way. n26 On December 22, 1890, the Commissioner sent instructions to Parker to cooperate with the troops and school superintendent Ralph P. Collins 'in such way as may be proper to eject the Navajos from the Moqui country to protect the Moquis from the former. * * *'The troops reached Keams Canyon on Christmas Eve, 1890, and shortly thereafter, with their use, [**46] the revolt of the Oraibi Hopis against the Keams Canyon [*148] school was broken. Winter being already well advanced, the Navajos were not on the move and Lt. Charles H. Grierson, in charge of the troops, reported that he saw no Navajo herds in the vicinity of the Hopi villages. Lt. Grierson apparently did not have instructions to carry out the Commissioner's plan to have Navajos ejected from the Hopi country. Instead, his instructions were to hold interviews with the Navajos and explain to them that they should cease molesting the Hopis.Again, the Washington office apparently acquiesced in the decision of the military not to forcibly eject Navajos from the 1882 reservation. But, as in the case of the similar attitude adopted by the Commissioner's office in 1888, we do not believe that implied Secretarial settlement of Navajos is to be inferred from such acquiescence.There were apparently two reasons why it was decided not to use force on this occasion, neither of which was predicated upon the view that the Navajos had rights in the reservation, however acquired. One of these was that, until the 1882 reservation boundary lines were distinctly marked, Navajos could not be [**47] blamed for entering that area. The other was that every effort was being made at this time to avoid antagonizing the Navajo Indian Tribe. Thus Lt. Grierson was instructed by Capt. H. K. Bailey, at Los Angeles, that he should be very 'guarded' in his action, especially towards the Navajos, 'and under no circumstances, if it can be avoided, will any harsh measures be taken towards them at this time.' n27Early in 1891, Parker, Navajo Agent David Shipley, School Superintendent Collins, and Thomas V. Keam, a pioneer of the area, decided that the most feasible way of meeting the immediate problem was to prescribe a circular boundary around the Hopi villages, having a radius of sixteen miles, within which the Navajos were instructed not to enter. They proceeded to do this, marking the circular boundary by mounds and monuments.The Commissioner was advised of this plan, being told that both the Hopis and Navajos were agreeable thereto. The Commissioner apparently acquiesced in the arrangement, although it was never expressly confirmed by the Washington office. This 1891 line is referred to in the record and briefs as the 'Parker-Keam' line. In what turned out to be a colossally over-optimistic [**48] statement, the Commissioner, on January 30, 1891, reported to the Secretary that the affairs between the Hopis and Navajos in the vicinity of Keams Canyon 'have been brought to a satisfactory conclusion.'The significance which defendant draws from establishment of the so-called Parker-Keam line, is predicated on the fact that it operated to assure Navajos residing outside that line but inside the 1882 reservation that they would not be disturbed. We are asked to infer therefrom that, by implication, the Secretary settled Navajos in the 1882 reservation, but outside of the Parker-Keam line.If this circumstance were considered independently of all the other events of the period, such an inference might be warranted. But immediately prior thereto the Commissioner had ordered the removal of Navajos and had only acceded to less stringent measurers out of considerations unrelated to any claim of right in the Navajos. During this same period the Government was rendering substantial assistance to Hopis in the reservation but none at all to resident Navajos unless a few Navajo children were then attending the Keams Canyon school.Moreover, the significance to be attached to the establishment [**49] of the Parker-Keam line must be judged not alone in the setting of circumstances which [*149] then existed, but also in the light of subsequent events. There are many instances in the long history of this controversy in which an interpretation of a particular occurrence, perhaps justified by immediately surrounding circumstances, proves unwarranted when considered in a broader context. As we shall shortly see, administrative action in the years immediately following establishment of the Parker-Keam line negates the view that any Navajos had previously gained rights in the reservation by Secretarial settlement or otherwise.We therefore conclude that practical considerations, unassociated with any official recognition of Navajo rights, dictated acquiescence in the attempt to solve the problem by means of the Parker-Keam line. Up to early 1891, no Secretary of the Interior had settled any Navajos in the 1882 reservation.Early in 1892, administrative officials put into effect a plan to allot lands to individual Indians in the reservation. While, under this plan, Navajos in the reservation were not permitted to be uprooted in order to allot lands to Hopis, neither were they [**50] permitted to receive allotments themselves. No Indian was allowed an allotment unless his father or mother was a Hopi. n28 This distinction between rights accorded Hopis and Navajos is explainable only on the hypothesis that the Navajos in the reservation were not then settled Indians within the meaning of the 1882 executive order.Several years were then to pass before there would be other events of significance. In 1899, the superintendent of schools at Keams Canyon complained of Navajo depredations and urged that the Navajos be returned to the Navajo reservation. The Washington office, however, decided that nothing should be done 'as the Navajoes have always trespassed upon the Moqui resn. * * *' The following year, rejecting a proposal that traders on the reservation not be permitted to do business with Navajos, the Commissioner said that it was not practical or fair to ask traders to keep the 'trespassing' Navajos out by refusing to trade with them.It would appear that if the Navajos were then 'trespassers' in the reservation, as they were authoritatively labelled, they were not settled Indians within the meaning of the 1882 order. The described Government inaction is not [**51] necessarily inconsistent with that label. Refusal to eject Navajos at this time may well have been motivated by the same considerations which led to acquiescence in the military decision against ejectment in prior years. Refusal to restrict the traders in the manner proposed was specifically attributed to the hardship this would place upon traders rather than any rights which had been acquired by the Navajos.Again, several years elapsed before there were other occurrences relevant to the question under discussion. In Part II of the Indian Department Appropriation Act of March 1, 1907, 34 Stat. 1015, under the heading 'Arizona' (34 Stat. 1021), the Secretary of the Interior was authorized 'to allot lands in severalty to the Indians of the Moqui Reservation in Arizona, in such quantities as may be for their best interest * * *.' It was further provided that such allotments would be subject to the provisions of the General Allotment Act of February 8, 1887, 24 Stat. 388-391.The then acting Commissioner apparently construed the words 'Indians of the Moqui Reservation,' as used in the 1907 act, to include Navajos then located in the reservation who intended to remain there and who [**52] desired to receive allotments. Thus, on February 25, 1909. he instructed field officials to allot lands in the reservation to such Navajos. He further advised, however, that Navajos living in the reservation who declined to accept allotments 'can be removed from the reservation.' In conveying these instructions, the acting Commissioner [*150] made reference to the 'such other Indians' provision of the Executive Order of December 16, 1882, stating that this provision provided 'ample authority' for the instructions which were given.The clear intendment of these instructions, given by the authorized representative of the Secretary, is that Navajos then living in the reservation who intended to make it their permanent homes, and who indicated a willingness to accept allotments, were thereby 'settled' in the reservation pursuant to the authority vested in the Secretary under the executive order. All other Navajos living in the reservation, however, without regard to length of residence or intention to make the reservation a permanent home, were subject to removal and therefore were not 'settled' at that time.Approximately three hundred Navajos residing on the 1882 reservation [**53] indicated a willingness to accept allotments, and received allotments subject to approval. In 1911 this second allotment project was abandoned, and none of the allotments to Navajos or others was approved. These three hundred Navajos must nevertheless be regarded as 'settled' Indians, since the only Navajo permanent residents who were denied that status under the acting Commissioner's ruling of February 25, 1909, were those who were unwilling to accept allotments.It is not ascertainable from this record who these three hundred Navajos were; which, if any, were still living on July 22, 1958, and residing in the reservation; or which of them, if any, had descendants living in the reservation on the latter date and, if so, who were such descendants. It is therefore not possible, on this record, to find that any Navajos residing in the reservation on July 22, 1958, derived rights of use and occupancy by reason of the fact that, in the years 1909 to 1911, the Secretary had settled three hundred unidentified Navajos in the reservation.
There are several reasons why, as we find and conclude, the Secretarial settlement of three hundred Navajos in the reservation in connection with the [**54] 1907-1911 allotment project, did not effectuate a Secretarial settlement of the Navajo Indian Tribe in the 1882 reservation. These reasons are: (1) only three hundred of some two thousand Navajos then living in the reservation were settled in this manner; (2) the only Navajos who may be deemed to have been settled at that time were those who agreed to accept allotments, and the acting Commissioner ruled that Navajos who declined to accept allotments 'can be removed from the reservation'; (3)