Hagen v. Utah, 510 U.S. 399, 15 (1994)

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Cite as: 510 U. S. 399 (1994)

Opinion of the Court

needed for the purpose for which they were withdrawn from sale and settlement' "); United States v. Pelican, 232 U. S. 442, 445-446 (1914). Statutes of the period indicate that Congress considered Indian reservations as separate from the public domain. See, e. g., Act of June 25, 1910, 6, 36 Stat. 857 (criminalizing forest fires started "upon the public domain, or upon any Indian reservation") (quoted in United States v. Alford, 274 U. S. 264, 266-267 (1927)). Likewise, in DeCoteau we emphasized the distinction between reservation and public domain lands: "That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned . . . . The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the 'public domain.' " 420 U. S., at 446 (emphasis added).

In Solem, the Court held that an Act which authorized the Secretary of the Interior to " 'sell and dispose of' " unallotted reservation lands merely opened the reservation to non-Indian settlement and did not diminish it. 465 U. S., at 472- 474. Elsewhere in the same statute, Congress had granted the Indians permission to harvest timber on the opened lands " 'as long as the lands remain part of the public domain.' " Id., at 475. We recognized that this reference to the public domain "support[ed]" the view that a reservation had been diminished, but that it was "hardly dispositive." Id., at 475. We noted that "even without diminishment, unallotted opened lands could be conceived of as being in the 'public domain' inasmuch as they were available for settlement." Id., at 475, n. 17. The Act in Solem, however, did not "restore" the lands to the public domain. More importantly, the reference to the public domain did not appear in the operative language of the statute opening the reservation lands for settlement, which is the relevant point of reference for the diminishment inquiry. Our cases considering operative language of restoration have uniformly equated it with a congressional purpose to terminate reservation status.

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