Hagen v. Utah, 510 U.S. 399, 14 (1994)

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Opinion of the Court

U. S., at 470-471. While the provision for definite payment can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. In fact, the statutes at issue in Rosebud, which we held to have effected a diminishment, did not provide for the payment of a sum certain to the Indians. See 430 U. S., at 596, and n. 18. We thus decline to abandon our traditional approach to diminishment cases, which requires us to examine all the circumstances surrounding the opening of a reservation.


The operative language of the 1902 Act provided for allocations of reservation land to Indians, and that "all the unallotted lands within said reservation shall be restored to the public domain." 32 Stat. 263 (emphasis added). The public domain was the land owned by the Government, mostly in the West, that was "available for sale, entry, and settlement under the homestead laws, or other disposition under the general body of land laws." E. Peffer, The Closing of the Public Domain 6 (1951). "[F]rom an early period in the history of the government it [was] the practice of the President to order, from time to time, . . . parcels of land belonging to the United States to be reserved from sale and set apart for public uses." Grisar v. McDowell, 6 Wall. 363, 381 (1868). This power of reservation was exercised for various purposes, including Indian settlement, bird preservation, and military installations, "when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain." United States v. Midwest Oil Co., 236 U. S. 459, 471 (1915).

It follows that when lands so reserved were "restored" to the public domain—i. e., once again opened to sale or settlement—their previous public use was extinguished. See Sioux Tribe v. United States, 316 U. S. 317, 323 (1942) (President ordered lands previously reserved for Indian use " 'restored to the public domain[,] . . . the same being no longer

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