The opinion of the court was delivered by: TAMM
This case involves the question of whether the Secretary of the Interior has the authority to restore the subsurface of certain lands in the State of Arizona to the San Carlos Apache Tribe of Indians. The land involved constitutes that tract hereinafter designated as the Mineral Strip.
By Order No. 2874 (28 Fed.Reg. 4608), former Under Secretary of the Interior James K. Carr restored these subsurface lands to the Indians 'subject to any valid existing rights' and exclusive of 'any patented lands or any interest in any patented lands. * * *'
Plaintiffs, who own patented lands and also possess surface grazing permits and leases in the area, and the State of Arizona, which claims valid existing rights in the area under grants from the United States, are together attempting in this action to have Order No. 2874 declared illegal.
Defendants and the Tribe assert in response (1) that plaintiffs and the State of Arizona have no standing to sue in view of the protection given by the restoration order to patented lands and other valid existing rights, and (2) that the Secretary of Interior's action is authorized under sections 3 and 7 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 986, 25 U.S.C. §§ 463, 467.
The background of this litigation is as follows:
The San Carlos Indian Reservation in Arizona was created by Executive Order dated December 14, 1872. Numerous Executive Orders, Agreements with the Indians, and Congressional Acts from 1872 to 1902 effected changes in the boundaries of the reservation by exclusions from and an addition to the land contained therein, including the Agreement of February 25, 1896, ratified by the Act of June 10, 1896, ch. 398, 29 Stat. 321, 358, covering the lands here involved.
By Article I of the 1896 Agreement, the Indians of the San Carlos Reservation did 'cede, grant, and relinquish to the United States all right, title, and claim which they may have in and to all the land' within a portion of the San Carlos Reservation known as the 'Mineral Strip,' which contains approximately 232,000 acres. By Article II of this agreement, the United States stipulated and agreed 'to place in the Treasury of the United States to the credit and for the sole benefit of the said Apache, Mohave, and Yuma Indians * * * the net proceeds accruing from the disposal of such coal and mineral lands.' In approving the agreement, Congress expressly provided in the Act of June 10, 1896, that 'the lands so surrendered shall be open to occupation, location, and purchase under the provisions of the mineral-land laws only.'
From 1896 until 1931, while all lands within the San Carlos Mineral Strip were subject to disposition under the mineral land laws, the Tribe received from such entries net revenue amounting to only $ 12,433. In view of the insignificant financial returns to the Indians under the 1896 agreement, the First Assistant Secretary of the Interior, on March 30, 1931, withdrew the lands in the Mineral Strip from all forms of entry or disposal under the public land laws, subject to all valid rights and claims, pending the enactment of legislation sanctioning the restoration of the area to the Tribe. The 1931 withdrawal remains in effect today.
'* * * be temporarily withdrawn from disposal of any kind, subject to any and all existing valid rights, until the matter of their permanent restoration to tribal ownership, as authorized by section 3 of the Act of June 18, 1934, supra can be given appropriate consideration. The intention is to withdraw only lands the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians.' 51 I.D., 559, 563.
The San Carlos Mineral Strip, ceded by the agreement of February 25, 1896, is the first tract listed in the Secretary's 1934 withdrawal order, 54 I.D. at 561, and that withdrawal remains in force today.
On June 28, 1934, Congress also passed the Taylor Grazing Act, 48 Stat. 1269, 43 U.S.C. § 315 et seq., providing for the administration of grazing resources on lands of the United States, and on February 14, 1936, Arizona Grazing District No. 4 was established under authority contained in that Act. Grazing District No. 4 includes a substantial area of undisposed of lands within the Mineral Strip. On November 17, 1936, the Assistant Commissioner of Indian Affairs and the Acting Director of Grazing addressed a letter to the Secretary of the Interior concerning these undisposed of lands, which letter recites in part:
'Since these lands are within the exterior boundary of Arizona Grazing District No. 4, established February 14, 1936, it is hereby agreed that they be placed temporarily under range management in accordance with the provision of the Taylor Grazing Act, until final disposition has been made thereof, provided that any action taken to place these lands under range management shall be consistent with any prior valid withdrawal from entry, and that the right, title, and interest of the Indians in and to these lands shall in no way be jeopardized.'
This letter was approved November 25, 1936, by the Assistant Secretary of the Interior.
A substantial portion of the Mineral Strip remained undisposed of and not included within Grazing District No. 4. In order to clarify the administration of such lands, as well as the lands in Grazing District No. 4, the Assistant Commissioner of Indian Affairs, the Commissioner of the General Land Office (now the Bureau of Land Management) and the Director of Grazing, in 1941, signed a memorandum to the Secretary of the Interior which contained an agreement among these parties that the ceded lands which did not lie within an established grazing district would be temporarily administered under lease by the General Land Office, pursuant to the condition set forth in the above letter of November 17, 1936. This memorandum was approved by the First Assistant Secretary of the Interior or June 21, 1941.
Thus, the grazing resources of all undisposed of lands in the Mineral Strip are now administered by the Bureau of Land Management under the terms of the Taylor Grazing Act and on condition that the right, title and interest of the Indians therein shall not be jeopardized. The San Carlos Apache Tribe actually receives income from the Taylor Grazing Act leases within the Mineral Strip.
On March 11, 1958, the San Carlos Apache Tribal Council adopted Resolution No. 58-7 requesting the Secretary of the Interior to restore both the surface and subsurface of the lands within the Mineral Strip to tribal ownership. As a result of the Tribe's request, the Secretary held a hearing in February 1960, at Globe, Arizona, at which the plaintiffs appeared and opposed the restoration. No report or findings were ever made as a result of the hearing.
On December 10, 1962, Secretary Udall stated in a letter that he had referred the matter of the application in Resolution 58-7 to Under Secretary James K. Carr and that a decision would be made before January 1, 1963. On or about January 10, 1963, the plaintiffs filed this action seeking to enjoin defendants from acting upon Resolution No. 58-7 or from restoring any lands in the Mineral Strip to tribal ownership.
On April 2, 1963, and still before the Secretary had acted on the Tribe's application one way one way or another, the San Carlos Tribal Council adopted Resolution No. 63-17 requesting the Secretary 'immediately to restore to tribal ownership, subject to any valid existing rights, the subsurface interests in the lands that were ceded to the United States by the Agreement of February 25, 1896,' and further resolving 'that the Tribe's petition for restoration of the surface of the Mineral Strip be withdrawn from consideration and held in abeyance by the Secretary until reactivated by the San Carlos Council.' Upon being informed that Under Secretary Carr proposed to take immediate action on this Resolution, the plaintiffs moved in this Court for a temporary restraining order. After a hearing, Judge Pine on June 17, 1963, issued a temporary restraining order as to patented lands, but denied the same as to unpatented lands within the Mineral Strip. Later the same day, the Under Secretary issued Order No. 2874, supra, subject to the limitation of the Court's restraining order.
The restoration order indicated that the public hearings held in February, 1960 had been considered, and it concluded as follows:
'Section 1. Now, Therefore, by virtue of the authority vested in the Secretary of the Interior by sections 3 and 7 of the act of June 18, 1934 (48 Stat. 984), I hereby find that restoration to the San Carlos Apache Indian Tribe of the mineral, oil and gas resources in all of the following described lands will be in the public interest, and the right, title and interest in and to all minerals, oil and gas resources in said lands are hereby restored to tribal ownership for the use and benefit of the San Carlos Apache Tribe of Indians, and are added to and made a part of the existing reservation, subject to any valid existing rights. * * * This order shall not ...