Victim of Another B.I.A. Blunder: Individual Indian Title and the General Allotment Act

Navajo tribal members are in dispute over tribal ancestral lands, one claiming a right from a federal allotment patent and the other asserting individual aboriginal rights. In 1909, an allotment application for an allotment was made on behalf of Reuben Mariano for land then located outside the boundaries of the Navajo Indian reservation. The allotment patent was issued pursuant to the General Allotment Act for land in northwest New Mexico. Mariano never lived on the tract because Mary Bah Arviso and her family were settled there. Mariano argued that although his patent was not issued until 1964, his application for an allotment was accepted in 1909 which gives him a right to the land. Mary Bah Arviso and her daughter Grace Tsosie claim title to the land because Arviso and her family have aboriginal ownership that has not been extinguished by Congress. In 1994, the United States, acting as trustee, for Ruben Mariano, a Navajo allottee, brought a common law trespass and ejectment action against Grace Tsosie, also a Navajo, for land which is located outside of the Navajo 1868 treaty reservation boundaries but within an executive order reservation. This paper will address Grace Tsosie\\u27s claim to her ancestral home, asserting individual Indian title. Part I will address the Indian right of occupancy and how individual Indian title evolved from it. Part II covers the facts of Tsosie\\u27s individual Indian title claim and its litigation history. Part III discusses Tsosie\\u27s land claim under two theories: Navajo tribal customary use right and individual Indian title. I will argue Tsosie has established both tribal customary use rights and individual Indian title and that they have not been extinguished by congressional action