dissenting.
PRELIMINARY STATEMENT DISCUSSION OF ISSUES
I respectfully dissent, particularly with respect to the decision determining that the Uintah lands have become a part of the public domain. In essence, I favor the position that was taken by the District Judge Jenkins, who generally ruled that the Uintah Reservation and its lands remain the property of the tribes that are involved. I would, however, reverse the trial court’s determination that the withdrawal of the Uintah National Forest means that the Indians lost title to that land.
The trial court recognized that concurrent with the drive to open up the Uncompahgre Reservation there was also an effort to negotiate an agreement with the Uintah and White River bands. Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1111 (D.Utah 1981). This was short of a return to the public domain. It would have provided for the allotment of their lands and for the cession of the unallotted surplus acreage. Bills were introduced in Congress in 1894 providing for the allotment and opening of both reservations. In fact contained in H.R. 6557 there were provisions included in the Indian Appropriations Act for 1894 §§ 20-23. But it is important to note that under the provisions of the Act distinction was made between the legislative approach to the Uncompahgre Reservation and the approach to the Uintah Valley Reservation.
With respect to the Uncompahgre Reservation a commission was appointed to proceed directly with the allotment of the Uncompahgre lands but a separate provision treated the Uintah Reservation Indians. The commission was directed in section 22 to negotiate with those Indians “residing upon the Uintah Indian Reservation, in the Territory of Utah, for the relinquishment to the United States of the interest of said Indians in all lands within said reservation not needed for allotment in severalty to *1316said Indians.” The object was merely to obtain the consent of such Indians to such relinquishment and for the acceptance by said Indians of the allotments and several-ties of lands within their Reservation. The commissioners were directed to report on an agreement made by them with the Indians which agreement would become operative only when ratified by Act of Congress.
It was said in the House report that: “The rights of the Indians on the Uintah Reservation differ from those of the Indians upon the Uncompahgre Reservation. The Uncompahgre Indians have no title to any of the lands within the reservation, nothing more than the privilege of temporary occupancy.” House Report, No. 660, LD30, at 1. The Indians of the Uintah Reservation, the Assistant Attorney General found, were the owners of the land within the Reservation because in the Act of Congress of May 5, 1964 a provision was made that the land within the Uintah Reservation should be “ ‘set apart for the permanent settlement and exclusive occupation of the Indians’ ... to make available for settlement any portion of the lands within the Uintah Reservation.” Id., at 2-3. The report said: “it is first necessary to obtain the consent of the Indians residing thereon.” 1 The bill provided that the commissioners appointed “shall treat with the said Indians for the purpose of obtaining a relinquishment of their title to any lands not needed for allotment to Indians.” The Supreme Court in Mattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973) made it plain that the effort in the opening of the reservation in that case was not to do away with the continued reservation status. The object was to arrange for a system under which Indians could own land on the reservation with the federal government acting as guardian and trustee for the Indians which would be regarded as beneficial to the development of its wards.
In contrast to this, as to the Uncompahgre Reservation which was directly south of the Uintah Reservation, the object of Congress was particularly vague. However, the first duty of the Commission was to deal with the Uncompahgre Indians according to the Act of 1894. Actually the work of the Commission, shown by the report of the Senate, did not make any progress at all with respect to the Indians of the Uintah Reservation. The majority in the present appeal feel that Congress was aware that the reservations were to be terminated by legislation that expressly restored the Indians’ land to the public domain. The legislative history of the 1905 Act showed that as to the Uintah Reservation the Senate purposely voided the earlier acts which would have affected the Reservation and rejected the 1905 House proposals that contained express “restored to the public domain” language. Thus the 1905 Act has to be read as opening the Reservation in only a limited way. Since there was no intent to terminate it entirely, no such intention was shown, hence it cannot be implied.
The majority opinion disagrees with the trial court’s extensive consideration of the 1905 Act’s basic objective. The majority opinion argues that the Act’s development was merely an extension of the original 1902 Act and did not repeal the earlier legislation. Thus the 1902 Act’s termination language ought to apply to the Uintah Reservation. In actual practice it never was so regarded by the Congress or by the Department of Interior. Meanwhile 80 years passed since the enactment and no change has been made to this day.
The majority opinion also has cited other Indian reservation cases decided by the Supreme Court. The majority opinion states that the operative language in the 1905 Act opening the Uintah’s land to non-Indian settlers, “under the homestead and townsite laws,” is equivalent to “restored to the public domain;” the only phrase that the Supreme Court has recognized as terminating reservations that were not expressly ceded by a tribe. I submit that a proper reading recognizes a vast difference between restor*1317ing land to the public domain and a partial opening of the Reservation for homestead and townsite purposes. The slight opening here was for homestead and townsite purposes. Neither the Reservation or its lands generally were disturbed. I have no criticism of the Act of Congress which opened the land to non-Indian settlors for homestead purposes; this is consistent with continuation of the Reservation identity as well as the unallotted lands. Here there was no intention of Congress to deprive the Indians of their land.
It is highly significant that the position taken in this case by the United States and the State of Utah support the position of the Indians in this legislation. I regard this as highly cogent. If the Uintah Reservation were ripe for return to the public domain the Government would not be arguing in favor of the Ute tribes.
The only litigant in this case which takes issue with the position of the Tribes is the cities and counties. This is due to the fact that there are two cities which have grown up within the boundaries of the Reservation. The presence of these cities and counties is insignificant with respect to the issue which is here being considered. They have no minimal standing to try to strip the Tribes of their land.
This present action does not seek to interfere with the mentioned cities and counties. These are individual modifications but they go no further than the two counties and the two cities within the counties. Once again the State of Utah has also fully endorsed the position of the Tribe in this case. The State of Utah chose to submit the trial court’s opinion as its brief rather than make “unsupportable arguments” against that decision.
What is at stake then in this appeal is jurisdiction, civil, criminal, regulatory and taxation, over Indians and over non-Indians who have transactions with Indians in the disputed lands, together with the authority of the United States to administer the area and part of the Uintah Reservation. See DeCoteau v. District County Court, 420 U.S. 425, 427 n. 1, 95 S.Ct. 1082, 1084 n. 1, 43 L.Ed.2d 300 (1975).
Indian country has been defined as dependent Indian communities; the State of Utah may have had jurisdiction over the predominantly non-Indian communities of Duchesne and Roosevelt even though, in the trial court’s decision, they would be geographically located within the Uintah Reservation. 18 U.S.C. § 1151(b) (1976); Weddell v. Meierhenry, 636 F.2d 211, 213 (8th Cir.1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981).
The important point is that, other than the two cities and counties mentioned, the remainder of the property that is in dispute here has had continuous recognition as Indian country and it continues to be so recognized. The majority opinion also recognizes that the Indians who reside in this area have certain claims, even though some of them are not members of the Uintah Tribe, but the Tribal members have claims to tracts for grazing, etc. The allotments made to individual Indians totals about 360,000 acres. There are about 217,000 acres which have been restored to the Indians in 1940. A fact that is recognized by the trial court is that the Hill Creek extension of about 500,000 acres is recognized as the property of the Indians. So, the fact that there have been homestead rights to non-Indians within the Reservation cannot be regarded as too significant in relationship to termination of the reservation or the tribal lands. The majority opinion recognizes that the reserves and the allotments have at all times been referred to as being within the Ute Reservation or the Uintah and Ouray Reservation “and this explains the occasional use of the terms when additions were made extending the Reservation or the Reservation boundaries.”
Other cases in which courts have upheld a reservation’s continuing existence have had far stronger indications of congressional intent to end the reservations on- the face of the opening acts than are present in our case. Here there is a dearth of such evidence. In Confederated Salish & Kootenai Tribes v. Ñamen, 665 F.2d 951 (9th Cir. *13181982), sections in the opened lands were reserved for schools. That action did not indicate any intent to return to the public domain. The Ninth Circuit denied the kind of relief which is sought here. This partial assumption of control did not terminate the Reservation. There was not a return to the public domain. See Rosebud, 430 U.S. 584, 611-14, 97 S.Ct. 1361, 1375-76, 51 L.Ed.2d 660 (1977).
This is another indication that Congress is at liberty to provide for other uses of the land within the Reservation without disturbing the Reservation as a legal entity.
In Kootenai Tribes opening legislation also extended a federal ban on liquor to the opened lands; something Congress would have thought necessary if it intended to terminate the Flathead Reservation because the Indians then could no longer have been in “Indian country” where intoxicants were automatically banned. Id. Notwithstanding this evidence of Congress’ intent to end the Flathead Reservation, the absence of express termination language on the face of the act together with the lack of cession agreement, convinced the Ninth Circuit that the reservation had not been disestablished. 665 F.2d at 955-56. Circuit Judge Pregerson.
Another facial aspect which ordinarily tends to show that Congress intended to terminate a reservation is the provision for a sum certain payment to the Indians for their land. DeCoteau v. District County Court, 420 U.S. 425, 448, 95 S.Ct. 1082, 1094, 43 L.Ed.2d 300 (1975). A provision to pay all members of the tribe from the uncertain proceeds from future sales of parcels to settlers, however, has indicated that Congress did not intend to terminate a reservation. Mattz, supra, 412 U.S. at 504, 93 S.Ct. at 2257; Seymour v. Superintendent, 368 U.S. 351, 355-56, 82 S.Ct. 424, 427, 7 L.Ed.2d 346 (1962); Ash Sheep Co. v. United States, 252 U.S. 159,164-66, 40 S.Ct. 241, 242, 64 L.Ed. 507 (1919).
The 1905 Act having to do with the Uintah Reservation provided for uncertain payment from sale proceeds rather than a sum certain payment. That is to be regarded as a further indication on the face of the 1905 Act that Congress intended the Uintah Reservation to remain Indian country.
The majority consideration, at page 32, discussing the Gilsonite Strip withdrawal as being support for its conclusion that entry limitations are not inconsistent with termination, is plainly misplaced. The Gilsonite Strip Withdrawal Act expressly declares the withdrawn land to be restored to the public domain. Moreover, like the reservation termination in Rosebud, the Gilsonite Strip withdrawal followed the Indians’ express cession of that small strip of land for asphalt mining because its barren nature made it useless to them. Act of May 24, 1888, 25 Stat. 157. The majority opinion does not mention this cession. Its references at pp. 23 and 25 to the applicable legislation are not correct. They are at odds with the condition. This was a special withdrawal that was agreed to by the Tribe; thus, there is no possibility of an implicit conclusion that there was a termination of tribal ownership of the remaining land. The trial court ably details the contrast between the tribes’ complicity regarding the Gilsonite Strip withdrawal and their steadfast refusal to cede any more of their reservation. 521 F.Supp. at 1113. Without the Indians’ cession agreement to provide a baseline purpose of disestablishment, the entry limitations insisted upon by the Senate in 1905 have undeniable significance.
In summary: there is nothing on the face of the 1905 Act which supports the conclusion that Congress intended to terminate the Uintah Reservation. In cases involving similarly limited reservation openings of lands that were not expressly ceded by the Indians, the Supreme Court and other circuit courts have held without exception that the opened areas remained Indian country.
Consideration of Legislative History
In Mattz v. Arnett, supra, the Supreme Court acknowledged that Congress has the power to terminate an Indian Reservation unilaterally. Termination, however, does not occur unless the act opening a reservation or that act’s development shows the *1319clear intent on the part of Congress to end entirely the land’s reservation status. “A congressional determination to terminate must be express on the face of the Act or be clear from the surrounding circumstances and legislative history.” 412 U.S. at 505, 93 S.Ct. at 2258. Subsequently, the Court has added that the required clarity of purpose can be disclosed if a tribe’s agreement to cede its land is incorporated in a series of acts that show an “unmistakable baseline purpose of disestablishment.” Rosebud, supra, 430 U.S. at 592, 97 S.Ct. at 1366.
In the present situation there once was an act that showed the intent of' Congress to open the Uintah lands and to eliminate the tribe’s and the United States’s authority over the effected territory. That was the so-called 1902 Act which would have “restored [the Reservation] to the public domain.” The catch was that it was subject to a majority of the adult male Uintah and White River Utes giving their consent. Act of May 27, 1902, Ch. 88, 32 Stat. 245, 263-64. This consent was never given. Clearly in 1902 some members of Congress may have considered termination of the Reservation, if the Indians agreed. As opposed to the Uncompahgre’s uncertain claim to their lands, the Uintah and White River bands possessed title to the lands within their Reservation. Thus, their consent was seen as a necessary precondition to an opening of that land. See Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1111 (D.Utah 1981). Rosebud is not a parallel situation.
At no time did the Uintah and their companion Tribe, the White River Utes, consent to the opening of their Reservation. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), made Indian cession of reservation lands unnecessary. The Court there held that Congress could unilaterally open and allot reservation lands. Notwithstanding that, unlike the circumstances in Rosebud, supra, which the majority points to as its principal authority, the fact that the tribes here never ceded their lands directly or indirectly means that we cannot legitimately say that there was ever an “unmistakable baseline purpose” to terminate the Reservation.
To compare the situation here with that in the Rosebud case in which a majority of the effected tribe first agreed to the proposed diminishment of the reservation, then consistently ratified subsequent revision in the law intending to enact that agreement, is a contrast which argues in favor of the position of this Tribe.2 For its part, the only changes Congress made in subsequent acts were to “the form of, and responsibility for, payment.” 430 U.S. at 595, 97 S.Ct. at 1367. Despite these payment revisions, the original agreement’s language which was precisely suited to disestablishment, remained intact in all of the cases that were considered. 430 U.S. at 597, 97 S.Ct. at 1368. The factual contrast between Rosebud and our case is, to say the least, great.
Similarly, in DeCoteau v. District County Court, supra, there was a consistent readiness to cede tribal lands which was a key factor. The DeCoteau opinion is relied upon by the majority opinion in Rosebud in support of its conclusion that the Rosebud Indian Reservation agreements showed an unmistakable baseline purpose of disestablishment. To be noted also is the fact that Congress’ ratification of the DeCoteau cession agreement states that “All this land is opened by this bill to settlement as part of the public domain.” 420 U.S. at 441, 95 S.Ct. at 1091. The finding of termination in DeCoteau was also supported by the fact *1320that there was no indication of a legislative retreat from earlier attempts to vacate a reservation, as in Mattz. And finally in DeCoteau the cession agreement provided for a sum certain payment. 420 U.S. at 448-49, 95 S.Ct. at 1094-95.
The trial court considered all of the legislative history in detail and was convinced that “[n]othing in the legislative history of the 1905 Act approaches a clear expression of congressional intent to disestablish the Uintah Reservation.” 521 F.Supp. at 1132. That conclusion draws support from the Senate’s express rejection of the 1905 House amendment to the 1902 Act which provided that surplus unallotted lands would be restored to the “public domain.” As said by the trial court, Senators Smoot and Teller insisted that non-Indians be allowed to enter the Uintah Reservation only under the Homestead and Townsite laws.3
Congress made a “clear retreat” from its position as expressed in the 1902 Act. As was the ease in Seymour and Mattz:
The Act did no more than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.”
368 U.S. at 356, 82 S.Ct. at 427; 412 U.S. at 497, 93 S.Ct. at 2254.
In considering the circumstances surrounding the Uintah Reservation and the subsequent administrative treatment as discussed at quite some length in the trial court’s opinion, there is no necessity for us to elaborate on it. We have accurately evaluated the governing authorities. Again, contrary to the conclusions expressed in the majority opinion, there emerges from this study the conclusion that the Indians, non-Indians, the state and federal governments have treated the land as a continuing reservation and not public land. Even if we were to agree with the majority’s conclusion that there is “simply no consistent, clear and uniform identification of the reservation’s status in the subsequent legislative record,” there is ample evidence in the record of the surrounding circumstances in support of the conclusion that Congress never intended to terminate the Reservation or return its lands to the public domain. In any event it is for the cities and counties to prove that Congress had a dismantling intention.
The majority quotes the presidential proclamation of July 14, 1905 and states that this proclamation’s “references and adoption of the terms of the 1902 Act” shows that the earlier act’s termination language was incorporated in the 1905 Act. However, a reading of the 1905 Act fails to bring out this fact nor is there any public domain reference to the Uintah Reservation in that act.
Considered in its best light then the strongest part of the majority evidence supports the proposition that any time Congress expresses an intent to restore a reservation to the public domain there would thereupon be an underlying baseline purpose of disestablishment and that furthermore no alteration in congressional intent could come about. Under the majority’s view, each change would merely adopt the earlier proposal. The Supreme Court has not accepted any such argument. Moreover property is not to be taken from its owners so easily. The Supreme Court has concluded that congressional intent can change and that we should look to the last expression of that intent to determine whether the Congress that actually opened a reservation meant to terminate it as well:
More significantly, throughout the period from 1871-1892 numerous bills were introduced which expressly provided for the termination of the reservation and did so in unequivocal terms. Congress was fully aware of the means by which termination could be effected. But clear termination *1321language was not employed in the 1892 Act. This being so,- we are not inclined to infer an intent to terminate the reservation.
Mattz, supra, 412 U.S. at 504, 93 S.Ct. at 2257 [footnote omitted].
A somewhat similar recent decision was decided by the Ninth Circuit. In the Kootenai Tribes case mentioned above, there was a congressional retreat from an opening act that would have terminated the Flathead Reservation. Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir.1982). But there was a failure in that ease to obtain the tribe’s consent to cession. Congress had enacted opening legislation which provided that after allotment to the Indians, the surplus lands “shall be disposed of under the general provision of the homestead, mineral, and townsite laws of the United States.” 665 F.2d at 957. The obvious differences in Congress’ approach in the subsequent act in Rosebud, which “explicitly incorporated, and purported to amend and ratify, a 1901 cession agreement,” and in the act which allowed only limited non-Indian settlement on the Flathead Reservation caused the Ninth Circuit to conclude that “it is mere speculation to suppose that Congress in 1904 must have intended to effect a termination simply because it had sought to negotiate one several years earlier.” 665 F.2d at 958 [footnote omitted].
In our case evidence of subsequent negotiations is not shown. As in Kootenai Tribes, it cannot be said that merely because Congress may have intended to effect a termination, because it had sought to negotiate one once, that it intended to effect a termination in the actual opening legislation. As Judge Pregerson, speaking for the Ninth Circuit, said in the opinion in the Kootenai Tribes case “it is mere speculation”. Here also it is speculation at best to suppose that Congress must have intended to effect a termination growing out of the fact that first it sought to negotiate one.
CONCLUSION
From a consideration of the trial court’s opinion, we are convinced that it is based on a careful and painstaking review of the relevant legislation and history. The trial court applied principles of law to analysis of the facts in accordance with Supreme Court precedent. I join in the majority’s affirmance of parts of the trial court’s decision but dissent from all of the remainder of the majority opinion; that which reverses the trial court’s judgment that the Uintah Reservation and the lands within it was not terminated by the 1905 Act or any other action. To hold otherwise would run counter to the detailed decision of the trial court and the precedents which favor the Indians. The majority’s effort to piece expressions together in order to find congressional intent to terminate is not persuasive. To terminate the Uintah Reservation and return the lands to the public domain on the showing in this record would be an injustice of great magnitude. Actually the only parties who seek to bring about this termination of ownership are the two cities that are involved and no doubt they have motives of their own. It is possible that there are minerals to be mined in this area. However, this dissent grows out of a sincere belief that the Indian Tribes involved are threatened with a gross injustice.
Finally, we return to the fact that the United States has never undertaken a termination of this Reservation or Indian ownership of these lands. Throughout its history and at the present time the United States has recognized the continued existence of the tribe and the tribe’s ownership of the lands. True, there have been limited modifications allowing entries, none of which have purported to bring about any substantial change. Indeed, even at the present time and in this case the United States has endorsed the Indian position.
The United States Government has on this appeal urged an affirmance of the judgment of the district court with the exception of the ruling with respect to the forest lands. This writer views the ruling on the ownership of the forest lands in the same way. It is a condition brought about by the Forest Service (Dept, of Agriculture) *1322undertaking the management of the forest. This has not changed the ownership of the, lands or the timber. The important fact is that the United States is on the side of the tribes. This alone is opposed to the existence of any evidences of termination or any prior effort to void the Reservation or to return the land to public domain status.
. This consent in this instance is of real importance because it recognizes that the rights of the Uintah Tribe are substantial and that they actually own the land.
. In Article I of the original act opening the Rosebud Reservation the tribe agreed to the following: “The said Indians belonging to the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation now remaining unallotted.” ... See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 591 n. 8, 97 S.Ct. 1361, 1365 n. 8, 51 L.Ed.2d 660 (1976).
The majority opinion in Rosebud also notes that: “The written consent of a majority of the Tribe was obtained prior to the 1904 and 1907 Acts, .. .; no written consent was obtained prior to the 1910 Act, but the ‘practically unanimous’ concurrence of the Indians was reported.” 430 U.S. at 587 n. 2, 97 S.Ct. at 1363 n. 2 [citations omitted].
. Indian Appropriation Bill, 1906; Hearings on H.R. 17474 before the subcommittee on Indian Affairs, 58 Cong. 3d Sess. (1905). The bill as passed incorporated Senators Smoot and Teller’s limited entry provision, not the full entry that the 1902 Act contemplated by seeking to restore the Reservation to the public domain. 39 Cong.Rec. 3522 (1905); see also Remarks of Cong. Howell, 39 Cong.Rec. 1181-82 (1905).