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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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No. 92-6281
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ROBERT HAGEN, PETITIONER v. UTAH
on writ of certiorari to the supreme court
of utah
[February 23, 1994]

  Justice O'Connor delivered the opinion of the Court.
  In this case we decide whether the Uintah Indian
Reservation was diminished by Congress when it was
opened to non-Indian settlers at the turn of the century.
If the Reservation has been diminished, then the town
of Myton, Utah, which lies on opened lands within the
historical boundaries of the Reservation, is not in
-Indian country,- see 18 U. S. C. 1151, and the Utah
state courts properly exercised criminal jurisdiction over
petitioner, an Indian who committed a crime in Myton.

                      I
  On October 3, 1861, President Lincoln reserved about
2 million acres of land in the Territory of Utah for
Indian settlement.  Executive Order No. 38-1, reprinted
in 1 C. Kappler, Indian Affairs: Laws and Treaties 900
(1904).  Congress confirmed the President's action in
1864, creating the Uintah Valley Reservation.  Act of
May 5, 1864, ch. 77, 13 Stat. 63.  According to the 1864
Act, the lands were -set apart for the permanent
settlement and exclusive occupation of such of the
different tribes of Indians of said territory as may be
induced to inhabit the same.-  Ibid.  The present-day
Ute Indian Tribe includes the descendants of the Indians
who settled on the Uintah Reservation.
  In the latter part of the 19th century, Federal Indian
policy changed.  See F. Cohen, Handbook of Federal
Indian Law 127-139 (1982 ed.).  Indians were no longer
to inhabit communally owned reservations, but instead
were to be given individual parcels of land; any remain-
ing lands were to be opened for settlement by non-
Indians.  The General Allotment Act, Act of Feb. 8,
1887, ch. 119, 24 Stat. 388, granted the President
authority -to allot portions of reservation land to tribal
members and, with tribal consent, to sell the surplus
lands to [non-Indian] settlers, with the proceeds of these
sales being dedicated to the Indians' benefit.-  DeCoteau
v. District County Court, 420 U. S. 425, 432 (1975).
  Pursuant to the General Allotment Act, Congress in
1894 directed the President to appoint a commission to
negotiate with the Indians for the allotment of Uintah
Reservation lands and the -relinquishment to the United
States- of all unallotted lands.  Act of Aug. 15, 1894, ch.
290, 22, 28 Stat. 337.  That effort did not succeed, and
in 1898 Congress directed the President to appoint
another commission to negotiate an agreement for the
allotment of Uintah Reservation lands and the -cession-
of unallotted lands to the United States.  Act of June 4,
1898, ch. 376, 30 Stat. 429.  The Indians resisted those
efforts as well.  A series of bills that would have opened
the Reservation unilaterally (i. e., without the consent of
the Indians) were subsequently introduced in the Senate
but were not enacted into law.  See Leasing of Indian
Lands, Hearings before the Senate Committee on Indian
Affairs, S. Doc. No. 212, 57th Cong., 1st Sess., 3 (1902).
  In 1902, Congress passed an Act which provided that
if a majority of the adult male members of the Uintah
and White River Indians consented, the Secretary of the
Interior should make allotments by October 1, 1903, out
of the Uintah Reservation.  Act of May 27, 1902, ch.
888, 32 Stat. 263.  The allotments under the 1902 Act
were to be 80 acres for each head of a family and 40
acres for each other member of the Tribes.  The Act also
provided that when the deadline for allotments passed,
-all the unallotted lands within said reservation shall be
restored to the public domain- and subject to homestead-
ing at $1.25 per acre.  Ibid.  The proceeds from the sale
of lands restored to the public domain were to be used
for the benefit of the Indians.
  A month after the passage of the 1902 Act, Congress
directed the Secretary of the Interior to set apart
sufficient land to serve the grazing needs of the Indians
remaining on the Reservation.  J. Res. 31, 57th Cong.,
1st Sess. (1902), 32 Stat. 744.  The resolution clarified
that $70,000 appropriated by the 1902 Act was to be
paid to the Indians -without awaiting their action upon
the proposed allotment in severalty of lands in that
reservation and the restoration of the surplus lands to
the public domain.-  Id., at 745.
  In January 1903, this Court held that Congress can
unilaterally alter reservation boundaries.  Lone Wolf v.
Hitchcock, 187 U. S. 553, 567-568.  On March 3, 1903,
Congress directed the Secretary to allot the Uintah
lands unilaterally if the Indians did not give their
consent by June 1 of that year, and deferred the opening
of the unallotted lands -as provided by the [1902 Act]-
until October 1, 1904.  Act of March 3, 1903, ch. 994, 32
Stat. 998.  The 1903 Act also specified that the grazing
lands specified in the 1902 joint resolution would be
limited to 250,000 acres south of the Strawberry River.
In 1904, Congress passed another statute that appropri-
ated additional funds to -carry out the purposes- of the
1902 Act, and deferred the opening date -as provided by
the [1902 and 1903 Acts]- until March 10, 1905.  Act of
April 21, 1904, ch. 1402, 33 Stat. 207.
  In 1905, Congress again deferred the opening date,
this time until September 1, 1905, unless the President
were to establish an earlier date.  Act of March 3, 1905,
ch. 1479, 33 Stat. 1069.  The 1905 Act repealed the
provision of the 1903 Act limiting the grazing lands to
areas south of the Strawberry River.  The Act further
provided that
-the manner of opening [Reservation] lands for
settlement and entry, and for disposing of the same,
shall be as follows: That the said unallotted lands
. . . shall be disposed of under the general provi-
sions of the homestead and town-site laws of the
United States, and shall be opened to settlement
and entry by proclamation of the President, which
proclamation shall prescribe the manner in which
these lands may be settled upon, occupied, and
entered by persons entitled to make entry thereof.-
33 Stat. 1069.
All lands remaining open but unsettled after five years
were to be sold for cash, in parcels up to 640 acres.
The -proceeds of the sale of such lands- were to be
-applied as provided in the [1902 Act] and the Acts
amendatory thereof and supplemental thereto.-  Id., at
1070.
  The Government once again failed to obtain the
consent of the Indians.  On July 14, 1905, President
Roosevelt issued the following Proclamation:
     -Whereas it was provided by the [1902 Act],
among other things, that on October first, 1903, the
unallotted lands in the Uintah Indian Reservation,
in the State of Utah, `shall be restored to the public
domain: Provided, That persons entering any of said
lands under the homestead laws shall pay therefor
at the rate of [$1.25] per acre.'
     -And, whereas, the time for the opening of said
unallotted lands was extended to October 1, 1904, by
the [1903 Act], and was extended to March 10, 1905,
by the [1904 Act], and was again extended to not
later than September 1, 1905, by the [1905 Act],
which last named act provided, among other things:
[`That the said unallotted lands . . . shall be dis-
posed of under the general provisions of the home-
stead and town-site laws of the United States . . . .']
     -Now, therefore, I, Theodore Roosevelt, President
of the United States of America, by virtue of the
power in me vested by said Acts of Congress, do
hereby declare and make known that all the un-
allotted lands in said reservation . . . will on and
after the 28th day of August, 1905, in the manner
hereinafter prescribed, and not otherwise, be opened
to entry, settlement and disposition under the
general provisions of the homestead and townsite
laws of the United States.-  34 Stat. 3119-3120.
The Proclamation went on to detail a lottery scheme for
the allocation of the lands to settlers.

                     II
  In 1989, petitioner was charged in Utah state court
with distribution of a controlled substance.  The offense
occurred in the town of Myton, which was established
within the original boundaries of the Uintah Indian
Reservation when the Reservation was opened to non-
Indian settlement in 1905.  Petitioner initially pleaded
guilty, but subsequently filed a motion to withdraw his
guilty plea.  The basis of the motion was that the Utah
state courts lacked jurisdiction over petitioner because
he was an Indian and the crime had been committed in
Indian country.  The trial court denied the motion,
finding that petitioner is not an Indian.
  The state appellate court reversed.  It concluded that
petitioner is an Indian, a determination that is not at
issue in this Court.  The court also held that Myton is
in Indian country, relying on Ute Indian Tribe v. State
of Utah, 773 F. 2d 1087 (1985) (en banc), cert. denied,
479 U. S. 994 (1986), in which the Tenth Circuit held
that the Uintah Indian Reservation was not diminished
when it was opened to settlement in 1905.  Because
Congress has not granted criminal jurisdiction to the
State of Utah to try crimes committed by Indians in
Indian country, cf. Negonsott v. Samuels, 507 U. S. ___,
___ (1993); Washington v. Confederated Bands and
Tribes of Yakima Nation, 439 U. S. 463, 471-474 (1979),
the appellate court held that the state courts lacked
jurisdiction over petitioner.  The court accordingly
vacated petitioner's conviction.
  The Utah Supreme Court reversed on the authority of
State v. Perank, 858 P. 2d 927 (1992), in which the
court had held (on the same day as the decision in
petitioner's case) that the Reservation had been dimin-
ished and that Myton was outside its boundaries, and
thus that petitioner's offense was subject to state
criminal jurisdiction.  858 P. 2d 925 (1992); see Solem
v. Bartlett, 465 U. S. 463, 467 (1984) (-As a doctrinal
matter, the States have jurisdiction over unallotted
opened lands if the applicable surplus land Act freed
that land of its reservation status and thereby dimin-
ished the reservation boundaries-).  The court accord-
ingly reinstated petitioner's conviction.
  We granted certiorari, 507 U. S. ___ (1993), to resolve
the direct conflict between these decisions of the Tenth
Circuit and the Utah Supreme Court on the question
whether the Uintah Reservation has been diminished.

                     III
  We first address a threshold question: Whether the
State of Utah, which was a party to the Tenth Circuit
proceedings, should be collaterally estopped from
relitigating the Reservation boundaries.  In Perank, the
Utah Supreme Court noted that -neither Perank, the
Department of Justice, nor the Tribe suggests that the
Tenth Circuit's en banc decision in Ute Indian Tribe has
res judicata effect in this case.-  858 P. 2d, at 931.
Because -[r]es judicata is an affirmative defense in both
criminal and civil cases and therefore is waivable,- id.,
at 931, n. 3, the court went on to consider the merits of
the State's claim.
  Petitioner's only recourse would have been to attack
the judgment in Perank on the ground that the Utah
Supreme Court failed to give effect sua sponte to the
prior determination in Ute Indian Tribe that the
Reservation had not been diminished.  Although that
issue is one of federal law, see Restatement (Second) of
Judgments 86 (1982), it was not presented in the
petition for a writ of certiorari.  It therefore is not
properly before us.  Yee v. Escondido, 503 U. S. ___, ___
(1992); see Izumi Seimitsu Kogyo Kabushiki Kaisha v.
U. S. Philips Corp., 510 U. S. ___ (1993) (per curiam).
Moreover, petitioner disavowed the collateral estoppel
argument at the petition stage, in response to a brief
filed by the Ute Indian Tribe:
-The question presented in the petition was whether
the reservation had been diminished by acts of
congress.  [This Court's Rule 14.1(a)] does not
appear to allow different issues to be raised.  The
Ute Indian Tribe argues that the Supreme Court of
the State of Utah should have reached a different
decision in [Perank] based on the doctrine of collat-
eral estoppel . . . .  Regardless of the opinion held
by the Ute Indian Tribe of the Perank decision, the
decision has been made and is controlling in pe-
titioner's case.-  Supplemental Brief for Petitioner 2
(filed Dec. 2, 1992) (emphasis added).
Because we see no reason to consider an argument that
petitioner not only failed to raise but on which he
expressly refused to rely in seeking a writ of certiorari,
we turn to the merits.

                     IV
  In Solem v. Bartlett, we recognized that
-it is settled law that some surplus land Acts dimin-
ished reservations, see, e. g., Rosebud Sioux Tribe v.
Kneip, 430 U. S. 584 (1977); DeCoteau v. District
County Court, 420 U. S. 425 (1975), and other
surplus land Acts did not, see, e. g., Mattz v. Arnett,
412 U. S. 481 (1973); Seymour v. Superintendent,
368 U. S. 351 (1962).  The effect of any given
surplus land Act depends on the language of the Act
and the circumstances underlying its passage.-  465
U. S., at 469.
In determining whether a reservation has been dimin-
ished, -[o]ur precedents in the area have established a
fairly clean analytical structure,- id., at 470, directing us
to look to three factors.  The most probative evidence of
diminishment is, of course, the statutory language used
to open the Indian lands.  Ibid.  We have also consid-
ered the historical context surrounding the passage of
the surplus land Acts, although we have been careful to
distinguish between evidence of the contemporaneous
understanding of the particular Act and matters occur-
ring subsequent to the Act's passage.  Id., at 471.
Finally, -[o]n a more pragmatic level, we have recog-
nized that who actually moved onto opened reservation
lands is also relevant to deciding whether a surplus land
Act diminished a reservation.-  Ibid.  Throughout the
inquiry, we resolve any ambiguities in favor of the
Indians, and we will not lightly find diminishment.  Id.,
at 470, 472; see also South Dakota v. Bourland, 508
U. S. ___, ___ (1993) (slip op., at 7) (-[S]tatutes are to
be construed liberally in favor of the Indians, with
ambiguous provisions interpreted to their benefit-),
quoting County of Yakima v. Confederated Tribes and
Bands of Yakima Nation, 502 U. S. ___, ___ (1992) (slip
op., at 17) (internal quotation marks omitted).
  The Solicitor General, appearing as amicus in support
of petitioner, argues that our cases establish a -clear-
statement rule,- pursuant to which a finding of dimin-
ishment would require both explicit language of cession
or other language evidencing the surrender of tribal
interests and an unconditional commitment from Con-
gress to compensate the Indians.  See Brief for United
States as Amicus Curiae 7-8.  We disagree.  First,
although the statutory language must -establis[h] an
express congressional purpose to diminish,- Solem, 465
U. S., at 475, we have never required any particular
form of words before finding diminishment.  See Rosebud
Sioux Tribe v. Kneip, 430 U. S. 584, 588, and n. 4
(1977).  Second, we noted in Solem that a statutory
expression of congressional intent to diminish, coupled
with the provision of a sum certain payment, would
establish a nearly conclusive presumption that the
reservation had been diminished.  465 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 conclu-
sion.  In fact, the statute 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 surround-
ing the opening of a reservation.

                      A
  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 ap-
peared 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 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 (crim-
inalizing 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 reserva-
tion 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 diminish-
ment inquiry.  Our cases considering operative language
of restoration have uniformly equated it with a congres-
sional purpose to terminate reservation status.
  In Seymour v. Superintendent, 368 U. S. 351 (1962),
for example, the question was whether the Colville
Reservation, in the State of Washington, had been
diminished.  The Court noted that an 1892 Act which
-`vacated and restored to the public domain'- about one-
half of the reservation lands had diminished the reserva-
tion as to that half.  Id., at 354.  As to the other half,
Congress in 1906 had provided for allotments to the
Indians, followed by the sale of mineral lands and entry
onto the surplus lands under the homestead laws.  This
Court held that the 1906 Act did not result in diminish-
ment: -Nowhere in the 1906 Act is there to be found
any language similar to that in the 1892 Act expressly
vacating the South Half of the reservation and restoring
that land to the public domain.-  Id., at 355.  This
Court subsequently characterized the 1892 Act at issue
in Seymour as an example of Congress' using -clear
language of express termination when that result is
desired.-  Mattz, 412 U. S., at 504, n. 22.  And in
Rosebud, all nine Justices agreed that a statute which
-`restored to the public domain'- portions of a reserva-
tion would result in diminishment.  430 U. S., at 589,
and n. 5; id., at 618 (Marshall, J., dissenting).
  In light of our precedents, we hold that the restoration
of unallotted reservation lands to the public domain
evidences a congressional intent with respect to those
lands inconsistent with the continuation of reservation
status.  Thus, the existence of such language in the
operative section of a surplus land Act indicates that the
Act diminished the reservation.  Indeed, we have found
only one case in which a Federal Court of Appeals
decided that statutory restoration language did not
terminate a reservation, Ute Indian Tribe, 773 F. 2d, at
1092, a conclusion the Tenth Circuit has since disavowed
as -unexamined and unsupported.-  Pittsburg & Midway
Coal Mining Co. v. Yazzie, 909 F. 2d 1387, 1400, cert.
denied, 498 U. S. 1012 (1990).
  Until the Ute Indian Tribe litigation in the Tenth
Circuit, every court had decided that the unallotted
lands were restored to the public domain pursuant to
the terms of the 1902 Act, with the 1905 Act simply
extending the time for opening and providing for a few
details.  Hanson v. United States, 153 F. 2d 162,
162-163 (CA10 1946); United States v. Boss, 160 F. 132,
133 (Utah 1906); Uintah and White River Bands of Ute
Indians v. United States, 139 Ct. Cl. 1, 21-23 (1957);
Sowards v. Meagher, 108 P. 1112, 1114 (Utah 1910).
Petitioner argues, however, that the 1905 Act changed
the -manner- in which the lands were to be opened.
That Act specified that the homestead and townsite laws
would apply, and so superseded the -restore to the
public domain- language of the 1902 Act, language that
was not repeated in the 1905 Act.  We disagree, because
the baseline intent to diminish the Reservation ex-
pressed in the 1902 Act survived the passage of the
1905 Act.
  Every congressional action subsequent to the 1902 Act
referred to that statute.  The 1902 Joint Resolution
provided an appropriation prior to the restoration of
surplus Reservation lands to the public domain.  32
Stat. 744.  The 1903 and 1904 Acts simply extended the
deadline for opening the reservations in order to allow
more time for surveying the lands, so that the -pur-
poses- of the 1902 Act could be carried out.  32 Stat.
997; 33 Stat. 207.  And the 1905 Act recognized that
they were all tied together when it provided that the
proceeds of the sale of the unallotted lands -shall be
applied as provided in the [1902 Act] and the Acts
amendatory thereof and supplementary thereto.-  33
Stat. 1070.  The Congress that passed the 1905 Act
clearly viewed the 1902 statute as the basic legislation
upon which subsequent Acts were built.
  Furthermore, the structure of the statutes requires
that the 1905 Act and the 1902 Act be read together.
Whereas the 1905 Act provided for the disposition of
unallotted lands, it was the 1902 Act that provided for
allotments to the Indians.  The 1902 Act also estab-
lished the price for which the unallotted lands were to
be sold, and what was to be done with the proceeds of
the sales.  The 1905 Act did not repeat these essential
features of the opening, because they were already
spelled out in the 1902 Act.  The two statutes-as well
as those that came in between-must therefore be read
together.
  Finally, the general rule that repeals by implication
are disfavored is especially strong in this case, because
the 1905 Act expressly repealed the provision in the
1903 Act concerning the siting of the grazing lands; if
Congress had meant to repeal any part of any other
previous statute, it could easily have done so.  Further-
more, the predicate for finding an implied repeal is not
present in this case, because the opening provisions of
the two statutes are not inconsistent: The 1902 Act also
provided that the unallotted lands restored to the public
domain could be sold pursuant to the homestead laws.
Other surplus land Acts which we have held to have
effected diminishment similarly provided for initial entry
under the homestead and townsite laws.  See Rosebud,
430 U. S., at 608; DeCoteau, 420 U. S., at 442.

                      B
  Contemporary historical evidence supports our conclu-
sion that Congress intended to diminish the Uintah
Reservation.  As we have noted, the plain language of
the 1902 Act demonstrated the congressional purpose to
diminish the Uintah Reservation.  Under the 1902 Act,
however, the consent of the Indians was required before
the Reservation could be diminished; that consent was
withheld by the Indians living on the Reservation.  After
this Court's Lone Wolf decision in 1903, Congress
authorized the Secretary of the Interior to proceed
unilaterally.  The Acting Commissioner for Indian
Affairs in the Department of the Interior directed Indian
Inspector James McLaughlin to travel to the Uintah
Reservation to -endeavor to obtain [the Indians'] consent
to the allotment of lands as provided in the law, and to
the restoration of the surplus lands.-  Letter from A. C.
Tonner to James McLaughlin (April 27, 1903), reprinted
in S. Doc. No. 159, 58th Cong., 3d Sess., 9 (1905).  The
Acting Commissioner noted, however, that the effect of
the 1903 Act was -that if the [Indians] do not consent
to the allotments by the first of June next the allot-
ments are to be made notwithstanding, and the un-
allotted lands . . . are to be opened to entry- according
to the terms of the 1902 Act.  Id., at 8-9.
  Inspector McLaughlin explained the effect of these
recent developments to the Indians living on the Reser-
vation:
-`By that decision of the Supreme Court, Congress
has the legal right to legislate in regard to Indian
lands, and Congress has enacted a law which
requires you to take your allotments.
          .       .      .      .      .
-`You say that [the Reservation boundary] line is
very heavy and that the reservation is nailed down
upon the border.  That is very true as applying to
the past many years and up to now, but congress
has provided legislation which will pull up the nails
which hold down that line and after next year there
will be no outside boundary line to this reservation.'-
Minutes of Councils Held by James McLaughlin,
U. S. Indian Inspector, with the Uintah and White
River Ute Indians at Uintah Agency, Utah, From
May 18 to May 23, 1903, excerpted in App. to Brief
for Respondent 4a-5a (emphasis added).
Inspector McLaughlin's picturesque phrase reflects the
contemporaneous understanding, by him conveyed to the
Indians, that the Reservation would be diminished by
operation of the 1902 and 1903 Acts notwithstanding the
failure of the Indians to give their consent.
  The Secretary of the Interior informed Congress in
February 1904 that the necessary surveying could not be
completed before the date set for the opening, and
requested that the opening be delayed.  Letter from
E. A. Hitchcock to the Chairman of the Senate Commit-
tee on Indian Affairs (Feb. 6, 1904), reprinted in S. Doc.
No. 159, supra, at 17.  In the 1904 Act, Congress
accordingly extended the time for opening until March
10, 1905, and appropriated additional funds -to enable
the Secretary of the Interior to do the necessary survey-
ing- of the Reservation lands.  33 Stat. 207.  The
Secretary of the Interior subsequently informed Congress
that a further extension would be necessary because the
surveying and allotments could not be completed during
the winter.  Letter from E. A. Hitchcock to the Chair-
man of the House Committee on Indian Affairs (Dec. 10,
1904), reprinted in S. Doc. No. 159, supra, at 21.
  The House of Representatives took up the matter on
January 21, 1905.  The bill on which debate was held
provided that -so much of said lands as will be under
the provisions of said acts restored to the public domain
shall be open to settlement and entry by proclamation
of the President of the United States, which proclama-
tion shall prescribe the manner in which these lands
may be settled upon, occupied, and entered.-  H. R.
17474, quoted in 39 Cong. Rec. 1180 (1905).  Represen-
tative Howell of Utah offered as an amendment -[t]hat
for one year immediately following the restoration of
said lands to the public domain said lands shall be
subject to entry only under the homestead, town-site,
and mining laws of the United States.-  Ibid.  Signifi-
cantly, Representative Howell offered his amendment as
an addition to, not a replacement for, the language in
the bill that explicitly referred to the lands' restoration
to the public domain.  He explained:
-In the pending bill these lands, when restored to
the public domain, are subject to entry under the
general land laws of the United States, coupled with
such rules and regulations as the President may
prescribe.  In my humble judgment there should be
some provision such as is embodied in my amend-
ment, limiting the lands in the reservation to entry
under the homestead, town-site, and mining laws
alone for one year from the date of the opening. . . .
-Congress should see to it that until such time as
those lands easy of access, reclamation, and irriga-
tion are settled by actual home makers the provi-
sions of the homestead law alone shall prevail.  This
policy is in accord with the dominant sentiment of
the time, viz, that the public lands shall be reserved
for actual homes for the people.-  Id., at 1182.
  Although the amendment was rejected in the House of
Representatives, id., at 1186, the Senate substituted the
current version of the 1905 Act, which is similar to the
amendment offered by Representative Howell but omits
the restoration language of the House version.  39 Cong.
Rec. 3522 (1905).  In the hearings on the Senate bill,
Senator Teller of Utah had stated that -I am not going
to agree to any entry of that land except under the
homestead and town-site entries,- because -I am not
going to consent to any speculators getting public land
if I can help it.-  Indian Appropriation Bill, 1906, Hear-
ings before the Senate Subcommittee of the Committee
on Indian Affairs, 58th Cong., 3d Sess., 30 (1905).
Thus, although we have no way of knowing for sure why
the Senate decided to limit the -manner- of opening, it
seems likely that Congress wanted to limit land specula-
tion.  That objective is not inconsistent with the restora-
tion of the unallotted lands to the public domain: Once
the lands became public, Congress could of course place
limitations on their entry, sale, and settlement.
  The Proclamation whereby President Roosevelt actually
opened the Reservation to settlement makes clear that
the 1905 Act did not repeal the restoration language of
the 1902 Act.  In that document, the President stated
that the 1902 Act provided that the unallotted lands
were to be restored to the public domain, that the 1903,
1904, and 1905 Acts extended the time for the opening,
and that those lands were now opened for settlement
under the homestead laws -by virtue of the power in
[him] vested by said Acts of Congress.-  34 Stat. 3120
(emphasis added).  President Roosevelt thus clearly
understood the 1905 Act to incorporate the 1902 Act,
and specifically the restoration language.  This -unam-
biguous, contemporaneous, statement, by the Nation's
Chief Executive,- Rosebud, 430 U. S., at 602, is clear
evidence of the understanding at the time that the
Uintah Reservation would be diminished by the opening
of the unallotted lands to non-Indian settlement.
  The subsequent history is less illuminating than the
contemporaneous evidence.  Since 1905, Congress has
repeatedly referred to the Uintah Reservation in both
the past and present tenses, reinforcing our longstanding
observation that -[t]he views of a subsequent Congress
form a hazardous basis for inferring the intent of an
earlier one.-  United States v. Philadelphia National
Bank, 374 U. S. 321, 348-349 (1963) (internal quotation
marks omitted).  The District Court in the Ute Indian
Tribe case extensively cataloged these congressional
references, and we agree with that court's conclusion:
-Not only are the references grossly inconsistent when
considered together, they . . . are merely passing
references in text, not deliberate expressions of informal
conclusions about congressional intent in 1905.-  521
F. Supp. 1072, 1135 (Utah 1981).  Because the textual
and contemporaneous evidence of diminishment is clear,
however, the confusion in the subsequent legislative
record does nothing to alter our conclusion that the
Uintah Reservation was diminished.

                      C
  Finally, our conclusion that the statutory language and
history indicate a congressional intent to diminish is not
controverted by the subsequent demographics of the
Uintah Valley area.  We have recognized that -[w]hen
an area is predominantly populated by non-Indians with
only a few surviving pockets of Indian allotments,
finding that the land remains Indian country seriously
burdens the administration of state and local govern-
ments.-  Solem, 465 U. S., at 471-472, n. 12.  Of the
original 2 million acres reserved for Indian occupation,
approximately 400,000 were opened for non-Indian
settlement in 1905.  Almost all of the non-Indians live
on the opened lands.  The current population of the area
is approximately 85 percent non-Indian.  1990 Census of
Population and Housing, Summary Population and
Housing Characteristics: Utah, 1990 CPH-1-46, Table
17, p. 73.  The population of the largest city in the
area-Roosevelt City, named for the President who
opened the Reservation for settlement-is about 93
percent non-Indian.  Id., Table 3, p. 13.
  The seat of Ute tribal government is in Fort Duch-
esne, which is situated on Indian trust lands.  By
contrast, we found it significant in Solem that the seat
of tribal government was located on opened lands.  465
U. S., at 480.  The State of Utah exercised jurisdiction
over the opened lands from the time the Reservation
was opened until the Tenth Circuit's Ute Indian Tribe
decision.  That assumption of authority again stands in
sharp contrast to the situation in Solem, where -tribal
authorities and Bureau of Indian Affairs personnel took
primary responsibility for policing . . . the opened lands
during the years following [the opening in] 1908.-  465
U. S., at 480.  This -jurisdictional history,- as well as
the current population situation in the Uintah Valley,
demonstrates a practical acknowledgment that the
Reservation was diminished; a contrary conclusion would
seriously disrupt the justifiable expectations of the
people living in the area.  Cf. Rosebud, 430 U. S., at
604-605.

                      V
  We conclude that the Uintah Indian Reservation has
been diminished by Congress.  Accordingly, the town of
Myton, where petitioner committed a crime, is not in
Indian country and the Utah courts properly exercised
criminal jurisdiction over him.  We therefore affirm the
judgment of the Utah Supreme Court.
                                  So ordered.