William J. Brennan, Jr.

“ Even before 1880 the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing and the resulting lines of commerce cut across the strip. ”

“ The Commission visited the Southern Utes to carry out that mandate and in 1881 its chairman reported to Congress:
'During may stay on the reservation I took occasion * * * to talk to the leading men * * * on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location (in severalty) * * *. I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. ”

“ Although the acreage was undivided, the White River Utes lived in the northern portion of the reservation, the Uncompahgre Utes inhabited the central part, and the Southern Utes occupied the southern region. ”

“ It will take time and careful management to induce these Indians to abandon their present (way of living) and adopt the new mode of life contemplated by the agreement.
'In the mean time, and while the change is going on, they must be protected from annoyance. * * * To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the (1880) agreement * * * as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation * * *. ”

“ The Act recited that it was enacted to accept 'the agreement submitted by the confederated bands of Ute Indians in Colorado, for the sale of their reservation in said State * * *.' 21 Stat. 199 (1880) . Thus, it was provided that the Confederated Bands 'cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.' 21 Stat. 200 (1880) . ”

“ There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of (lands) * * * disposed of by defendant as free homesteads and the remanining * * * acres * * * set aside by the defendant for public purposes. * * * However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but * * * also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 * * *.' 117 Ct.Cl., at 436-437 (emphasis added) . ”