When we talk about “public lands” in Utah, we usually start the story late with the Bureau of Land Management, the Forest Service, national parks and monuments, or the Utah state Legislature’s latest argument for “state sovereignty.” But the real story starts long before that, with aboriginal Indian title.
Every acre of what we now call Utah was once held by indigenous nations. That aboriginal Indian title is a fundamental doctrine of Anglo-American property law and is the origin of all American property titles.
The 1894 Utah Enabling Act, which created the state, says it plainly. Utah forever disclaims all right and title to unappropriated public lands within its borders and all lands held or owned by Native American tribes.
Utah has never had a legal claim to these lands. It disclaimed ownership of all Native American and “public lands” lands when it became a territory in 1850 and again at statehood in 1896.
Until recently, Utah Sen. Mike Lee was advancing an aggressive public land privatization effort: a proposal buried in the Senate’s version of the GOP’s federal budget reconciliation bill that would have authorized the sale of more than 1 million acres of BLM-managed land across 11 Western states.
Public backlash was swift and bipartisan. Even several Western Republicans, including Rep. Ryan Zinke (R-Mont.) and Rep. Mike Simpson (R-Idaho), vowed to vote against any bill containing a public land sell-off. Lee was forced to withdraw the proposal.
But attacks on public lands keep returning. The goal is to privatize these lands or transfer them to states.
Only the Northwestern Bands of Shoshone ceded Utah land to the U.S. — under extreme duress — by the 1868 Fort Bridger Treaty, which included approximately one-fifth of Utah along its northern borders.
Neither the Goshutes, Western Shoshones, Southern Paiutes or the Utah Uintah Band, who occupied the rest of Utah, ceded lands.
In 1946, Congress created the Indian Claims Commission (ICC) to resolve “ancient wrongs.” However, rather than provide justice, it became a mechanism to convert unextinguished Native American land into money.
Tribal attorneys were paid on contingency, creating an incentive to claim “takings” that never happened — like for the Goshutes, Western Shoshones, Southern Paiutes and the Utah Uintah Band. They shared a broad cultural and political assumption that all Native American rights outside of recognized reservation boundaries, were somehow or other lost. And once the Native Americans were paid, land claims against the U.S. are legally “precluded” by the finality provision of the ICC Act.
The federal Quiet Title Act allows lawsuits against the U.S. to recover federally occupied land. But that act requires suit within 12 years of an unlawful seizure by the federal government.
That window slammed shut decades ago when the national forests and BLM grazing districts were established — before any tribes had the understanding and resources to sue.
However, tribes may be able to sue to recover Indian title lands in private ownership. Courts have held that Indian title is still valid if it was never formally extinguished by Congress, treaty or intentional tribal abandonment.
The federal government never lawfully terminated Indian title in vast portions of Utah. It forgot to steal it by congressional extinguishment. It didn’t ratify treaties of cession. It simply occupied Indian land by creating the national parks, national forests, BLM grazing districts and military bases.
So, when Utah politicians demand state ownership of federal lands, maybe the real question is: whose land is it?
The Western Shoshones, Goshutes, Southern Paiutes and Utah Uintah Band may still hold unextinguished Indian title to their ancestral lands in Utah. But they are usually barred — by the ICC Act, the Quiet Title Act limitation or equitable defenses — from asserting those rights.
That’s the definition of injustice: a right without a remedy.
And the injustice is ongoing — every time we pretend these lands were lawfully acquired. Every time we erase the legal and historical record in favor of a convenient myth. Every time we forget who was here first — and who never left.