Respondents Brief — John McMahon, in His Official Capacity as Sheriff of San Bernardino County, et al., Petitioners v. Chemehuevi Indian Tribe, et al.
Supreme Court briefJan 30, 2020
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No. 19-820
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In The
Supreme Court of the United States
-----------------------------------------------------------------JOHN MCMAHON, in His Official
Capacity as Sheriff of San Bernardino County, and
RONALD SINDELAR, in His Official Capacity
as Deputy Sheriff for San Bernardino County,
Petitioners,
v.
CHEMEHUEVI INDIAN TRIBE, on Its Own Behalf
and on Behalf of Its Members Parens Patriae, and
CHELSEA LYNN BUNIM, TOMMIE ROBERT OCHOA,
JASMINE SANSOUCIE, and NAOMI LOPEZ, Individually,
Respondents.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------BRIEF IN OPPOSITION TO PETITIONERS’
WRIT OF CERTIORARI
-----------------------------------------------------------------LESTER J. MARSTON
Counsel of Record
RAPPORT AND MARSTON
405 West Perkins Street
Ukiah, CA 95482
(707) 462-6846
Marston1@Pacbell.Net
January 30, 2020
Counsel for Respondents
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE..............................
1
1.
The Tribe’s Aboriginal Territory ................
1
2.
Non-Intercourse Act Protection .................
1
3.
1851 Act, 9 Stat. 631 (March 3, 1851)
(“1851 Act”) ................................................
2
4.
Treaties with California Tribes .................
2
5.
Act of March 3, 1853, 10 Stat. 244 (“1853
Act”) ...........................................................
2
California’s Survey of Section 36 and Approval by the Surveyor General’s Office ......
4
Mission Indian Relief Act, 26 Stat. 712
(1891) .........................................................
4
8.
Kelsey Reports ...........................................
5
9.
Commissioner of Indian Affairs Recommendation ..................................................
5
1907 Secretarial Order Establishing the
Boundaries of the Chemehuevi Indian
Reservation ................................................
6
Amendments to the Mission Indian Relief
Act ..............................................................
8
Title 25 of the United States Code, Section
398(d) .........................................................
8
13.
The Parker Dam Act ..................................
9
14.
Organization of the Chemehuevi Indian
Tribe’s Tribal Government ........................
9
Arizona v. California, 373 U.S. 546 (1963) ....
9
6.
7.
10.
11.
12.
15.
ii
TABLE OF CONTENTS—Continued
Page
16.
Trust Patent .............................................. 10
17.
Recognition of the Chemehuevi Indian
Reservation ................................................ 10
REASONS FOR DENYING THE PETITION ...... 11
I.
THE NINTH CIRCUIT’S DECISION IS
CONSISTENT WITH THIS COURT’S DECISIONS AND DOES NOT RAISE AN ISSUE OF NATIONAL SIGNIFICANCE ..... 13
A. The Ninth Circuit’s Decision Is Consistent with this Court’s Decisions Relating to the 1851 Act .......................... 13
B. The Ninth Circuit’s Decision is Consistent with this Court’s Decisions Relating to Enabling Acts and Tribal
Land Rights ......................................... 15
C. The Ninth Circuit’s Decision is Consistent with this Court’s Decision in
Arizona v. California ........................... 21
II.
THE NINTH CIRCUIT’S DECISION IS
CONSISTENT WITH THIS COURT’S DECISIONS RELATING TO THE APPROPRIATION DOCTRINE ............................. 23
III.
THE NINTH CIRCUIT’S DECISION IS
CONSISTENT WITH CONGRESS’S INTENT TO PREVENT CHANGES IN THE
BOUNDARIES OF INDIAN RESERVATIONS CREATED BY A SECRETARIAL
ORDER ...................................................... 24
iii
TABLE OF CONTENTS—Continued
Page
IV.
THE NINTH CIRCUIT’S DECISION IS NOT
IN CONFLICT WITH THE DECISIONS
OF OTHER FEDERAL CIRCUITS ........... 26
A. The Ninth Circuit’s Decision Is Not in
Conflict with this Court’s or the Sixth
Circuit’s Analysis of 18 U.S.C. § 1151 ..... 27
B. The Ninth Circuit’s Decision Is Not in
Conflict with the Tenth Circuit’s Decision Regarding the Enforcement of
State Traffic Laws Against Indians in
Indian Country .................................... 30
CONCLUSION..................................................... 32
iv
TABLE OF AUTHORITIES
Page
CASES:
Alexander Bird in the Ground v. District Court
of Thirteenth Judicial Dist., 239 F. Supp. 981
(D.C. Mont. 1965) ....................................................28
Arizona v. California, 373 U.S. 546 (1963) ......... passim
Barker v. Harvey, 181 U.S. 481 (1901) ........................14
Beecher v. Wetherby, 95 U.S. 517 (1877) ............. passim
Blake v. Arnett, 663 F.2d 906 (9th Cir. 1981) .............18
Cardinal v. United States, 954 F.2d 359 (6th Cir.
1992) .................................................................. 29, 30
Chemehuevi Indian Tribe v. United States of
America, 14 Ind. Cl. Com. 651 (1965) ................. 1, 11
Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986).......14
Cramer v. United States, 261 U.S. 219 (1923).... 14, 15, 24
DeCoteau v. Dist. County Court for Tenth Judicial Dist., 420 U.S. 425 (1975) .................................30
Hagen v. Utah, 510 U.S. 399 (1994) ............................27
Hastings & Dakota Railroad Co. v. Whitney, 132
U.S. 357 (1889) ........................................................23
Lyon v. Gila River Indian Cmty., 626 F.3d 1059
(9th Cir. 2010).................................................. passim
Minnesota v. Hitchcock, 185 U.S. 373 (1902)........ 20, 24
Moe v. Confederated Salish & Kootenai Tribes of
Flathead Reservation, 425 U.S. 463 (1976) ............30
v
TABLE OF AUTHORITIES—Continued
Page
Navajo Tribe of Indians v. New Mexico, 809 F.2d
1455 (10th Cir. 1987) ...............................................16
Oneida Indian Nation v. County of Oneida, 414
U.S. 661 (1974) ........................................................24
Seymour v. Superintendent, 368 U.S. 351
(1962) ........................................................... 12, 17, 28
Solem v. Bartlett, 465 U.S. 463 (1984) ............ 12, 16, 26
United States v Crowe, 563 F.3d 969 (9th Cir.
2009) ........................................................................27
United States v. Midwest Oil Co., 236 U.S. 459
(1915) .......................................................................22
United States v. Ron Jorgenson, et al., United
States District Court Central District of California, Case No. CV-92-3809-TJH ..........................11
United States v. Thomas, 151 U.S. 577 (1894) ... passim
United States v. Title Insurance & Trust Co., 265
U.S. 472 (1924) ........................................................14
Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir.
2015) ............................................................ 22, 30, 31
Wisconsin v. Hitchcock, 201 U.S. 202 (1906) ...... passim
STATUTES:
9 Stat. 631 ............................................................... 2, 14
9 Stat. 922 ...................................................................14
10 Stat. 244 ............................................................... 2, 3
vi
TABLE OF AUTHORITIES—Continued
Page
26 Stat. 712 ...................................................................4
33 Stat. 1048 .................................................................5
34 Stat. 1015 .................................................................8
54 Stat. 744 ............................................................. 9, 17
18 U.S.C. § 1151 .................................................. passim
25 U.S.C. § 177 ........................................................ 2, 24
25 U.S.C. § 398d ................................................ 8, 25, 26
25 U.S.C. § 5108 et seq. .................................................9
OTHER AUTHORITIES:
Congressional Globe, Vol. 24, Part 3, July 1852 ..........4
Land in California: The Story of Mission Lands,
Ranchos, Squatters, Mining Claims, Railroad
Grants, Land Scrip, Homesteads, University of
Calif. Press (1948) .....................................................2
Opinion of the Solicitor, Authority of Secretary
to Determine Equitable Title to Indian Lands,
1974 DOINA LEXIS 47 ...........................................26
1
STATEMENT OF THE CASE
In its Petition for Writ of Certiorari (“Petition”),
petitioner (“Sheriff ”) misstates and fails to acknowledge a number of the essential facts of this case. In
order to correct these misstatements and omissions,
the Chemehuevi Indian Tribe (“Tribe”) and the individual Indian respondents (“Respondents”) will set
forth the facts that are relevant and necessary for the
resolution of the issues before the Court.
1. The Tribe’s Aboriginal Territory. Since
time immemorial, the Tribe has occupied the lands
that presently comprise the Chemehuevi Indian Reservation in the Chemehuevi Valley, California, including Township 5 North, Range 24 East, Section 36,
within the San Bernardino Meridian (“Section 36”).
See Chemehuevi Indian Tribe v. United States of America, 14 Ind. Cl. Com. 651 (1965); ER 241-62; Ind. Cl.
Comm. Map; ER 118-20. See also Report of Special
Agent Kelsey, Letter Dated July 10, 1907 (“this valley
is a deep low valley by the Colorado River and has been
occupied from time immemorial by the Chemehuevi
Indians.”). ER 263-66.
2. Non-Intercourse Act Protection. On June
30, 1834, Congress expressly protected all lands under
the use and occupation of any Indian tribe from being
sold, leased or alienated in any way.
No purchase, grant, lease, or other conveyance
of lands, or of any title or claim thereto, from
any Indian nation or tribe of Indians, shall be
of any validity in law or equity, unless the
2
same be made by treaty or convention entered
into pursuant to the Constitution.
25 U.S.C. § 177 (“Non-Intercourse Act”).
3. 1851 Act, 9 Stat. 631 (March 3, 1851) (“1851
Act”). In order to fulfill its obligations to Mexico under
the Treaty of Guadalupe Hidalgo, Congress enacted
the 1851 Act. The 1851 Act required every person
claiming lands in California by virtue of any right or
title derived from the Spanish or Mexican governments to present the same for settlement to a commission created by the 1851 Act.
4. Treaties with California Tribes. The
United States never entered into any treaty with the
Tribe approving any grant or conveyance of Chemehuevi lands to the United States or to California. See
W.W. Robinson, Land in California: The Story of Mission Lands, Ranchos, Squatters, Mining Claims, Railroad Grants, Land Scrip, Homesteads, University of
Calif. Press (1948), paperback ed. 1979, pp. 15-16.
5. Act of March 3, 1853, 10 Stat. 244 (“1853
Act”). In 1853, Congress passed “An Act to Provide for
the Survey of the Public Lands in California, the
Granting of Preemption Rights Therein, and for Other
Purposes.” Id. at 246. Under the 1853 Act, the right of
preemption (preferential right of purchase) was extended to California and other western states. However, Sections 16 and 36 in California were reserved
from preemption. Under Section 6 of the 1853 Act,
those sections were:
3
. . . granted to the State for the purposes of
public schools in each township, and with
the exception of lands appropriated under the authority of this act, or reserved by
competent authority . . . shall be subject to the
preemption laws of fourth September, eighteen hundred and forty-one, with all the exceptions, conditions, and limitations therein,
except as is herein otherwise provided;
. . . And provided further, that this act
shall not be construed to authorize any
settlement to be made on any tract of
land in the occupation or possession of
any Indian tribe, or to grant any preemption right to the same.
*
*
*
10 Stat. 244, 246-47 (1853) (“Section 6”) (emphasis
added). ER 269-70.
In Section 6 of the 1853 Act, Congress recognized
that the aboriginal occupancy rights of California
tribes survived California’s admission into the union
and protected those occupancy rights from further unauthorized encroachments by white settlers. This intent was expressed by Senator Fletcher, who offered
Section 6 as an amendment to the 1853 Act. In July
1852, on the floor of the Senate, he stated:
My object was to avoid the possibility of
white people going among the Indians
and making settlements, and claiming
that the United States had given sanction to it by this law in opposition to the
rights of the Indians. The way to get rid
4
of the Indians is not by sending white
men to claim rights among them. It is to
form treaties with them as the government is heretofore done, according to the
provisions of the constitution . . . I do not
apprehend that this provision will embarrass
anybody, but, on the other hand, it seems to
me to be quite proper that we should give the
Indian that security which I desire to give him
by this provision.
Congressional Globe, Vol. 24, Part 3, July 1852, p. 1773
(emphasis added). ER 272.
6. California’s Survey of Section 36 and Approval by the Surveyor General’s Office. Pursuant
to the 1853 Act, California caused to be surveyed Section 36 and submitted the survey to the Surveyor General’s Office for approval. The Surveyor General’s
Office approved the survey on July 10, 1895. ER 54546.
7. Mission Indian Relief Act, 26 Stat. 712
(1891). On January 12, 1891, Congress again sought
to protect the lands under the occupation and possession of Indian tribes in Southern California by passing
the “Act for the Relief of the Mission Indians in the
State of California” (“MIRA”). Under the MIRA, the
President was authorized “to select reservations for
each band or village of the Mission Indians residing
within” the State. Id. at 713. The President did not
select any lands under the MIRA for the Tribe and
eleven other Indian tribes in Southern California. ER
886-90.
5
8. Kelsey Reports. On or about March 3, 1905,
C.E. Kelsey, a San Jose attorney and officer of the
Northern California Indian Association, was appointed
by Congress to act as a special agent to the Commissioner of Indian Affairs for the purpose of reporting to
the Commissioner on the condition of Indians within
California. See Act of March 3, 1905, 33 Stat. 1048,
1058.
On December 27, 1906, and January 31, 1907, Special Agent Kelsey issued his reports on the condition of
the Tribe, which resided in the Chemehuevi Valley
along the Colorado River. In these reports, Kelsey recommended that the lands occupied by the Tribe be
added to the Colorado River Indian Reservation or, in
the alternative, be set aside and proclaimed as a separate reservation for the Chemehuevi. In his report,
Kelsey specifically recommended that the reservation
include the eastern half of Township 5 North, Range 24
East (“E. 1/2 of T. 5 N.; R. 24 E.”) which contains Section
36. Kelsey noted that this land was the “present location” of the Chemehuevi and that “there is no question
that they have occupied this land since primeval
times.” ER 547-50; ER 551-67. See also Burlew, E.K.,
Decisions of the Department of the Interior, 57 I.D. 87
at 89 (1939).
9. Commissioner of Indian Affairs Recommendation. On January 31, 1907, pursuant to Kelsey’s reports, the Acting Commissioner of Indian
Affairs wrote to the Secretary of the Interior requesting that he withdraw certain lands from settlement
and entry for the use and occupancy of twelve bands of
6
Indians, including the Tribe, for whom no lands were
set apart for under the MIRA. In his letter, the Commissioner wrote:
Referring to office letter of January 28, transmitting reports of Special Agent C.E. Kelsey
on the condition of the Mission Indian Reservations in California, and the draft of a proposed bill for the betterment of their condition
[i.e. Act of March 1, 1907 “An Act Amending
Section 3 of the Act of January 12, 1891, An
Act for the Relief of the Mission Indians in the
State of California”], I have the honor to
transmit herewith certain descriptions of
lands which he recommends be withdrawn
from all forms of settlement and entry pending action by Congress whereby they may be
added to several reservations. The proposed
additions are as follows:
*
*
*
Chemehuevi Valley. Fractional townships 4
N., R. 25 E., T. 4 N., R. 26 E., T. 5 N., 25 E., 6
N., 25 E.; the E/2 of 5 N., R. 24 E., and Secs.
25, 26, 35 and 36, T. 6 N., R. 24 E., S.B.M.
ER 886-90 (emphasis added).
10. 1907 Secretarial Order Establishing the
Boundaries of the Chemehuevi Indian Reservation. On February 2, 1907, the Secretary of the Interior, exercising the inherent authority of the President,
pursuant to the Commissioner’s recommendation, issued an order to the General Land Office directing that
the lands be withdrawn from settlement and entry for
7
the Chemehuevi (“1907 Order). In his order, the Secretary stated:
In view of the recommendation of the Indian
office, I have to direct that the lands referred
to be withdrawn from all form of settlement
or entry until further notice, also that the local land officers of the District in which the
said lands are located, be advised of such
withdrawal. In this connection you are advised that the Department on the 31st ultimo
forwarded to Congress, with favorable recommendation, the draft of a bill to authorize the
addition of certain lands to the Mission Indian
Reservation.
Secretarial Order of February 2, 1907.1
The 1907 Order established the exterior boundaries of the Chemehuevi Indian Reservation (“Reservation”), which consists of: Fractional townships 4 N., R.
25 E., T. 4 N., R. 26 E., T. 5 N., 25 E., 6 N., 25 E., the E/2
of T. 5 N., R. 24 E., and Secs. 25, 26, 35, and 36, T. 6 N.,
R. 24 E. The withdrawal of the Eastern one-half
(“E/2”) of Township 5 North, Range 24 East of the
1
“The Chemehuevi Reservation was established by the Secretary of the Interior on February 2, 1907, pending congressional
approval.” Arizona v. California, 373 U.S. 546, at 596 fn. 100
(1963). The Congressional approval came less than a month later
when on March 1, 1907, Congress passed the amendments to the
Mission Indian Relief Act, see Statement of the Case (“SOC”), ¶ 8
above, which expressly authorized the Secretary to “select” and
“set apart” the public lands of the United States that had been in
the “occupation and possession of the several bands” of Mission
Indians. SOC, ¶ 11. The Chemehuevi were determined by the Department of the Interior to be “Mission Indians.” SOC, ¶ 16.
8
San Bernardino Meridian includes the withdrawal of
Section 36. ER 875-76. The Reservation consists of approximately 32,487 acres of trust and fee land, including Section 36, adjacent to the Colorado River and
Lake Havasu in San Bernardino County, California.
ER 578; ER 875-76. Section 36 was included within the
boundaries of the Reservation as set forth in the 1907
Order.
11. Amendments to the Mission Indian Relief Act. On March 1, 1907, Congress enacted “Act
Making Appropriations For The Current And Contingent Expenses Of The Indian Department, For Fulfilling Treaty Stipulations With Various Indian Tribes,
And For Other Purposes, For The Fiscal Year Ending
June 13, 1908.” 34 Stat. 1015. The amendments confirmed the Secretary of the Interior’s authority to reserve and set aside lands that the Secretary had found
“upon investigation to have been in the occupation and
possession of the several bands or villages of Mission
Indians. . . .” Id. at 1022-23. By amending the MIRA,
Congress ratified the 1907 Order. ER 337 (referencing
ER 333).
12. Title 25 of the United States Code, Section 398(d). On March 3, 1927, Congress enacted Title
25 of the United States Code Section 398(d). That section provides:
Changes in the boundaries of reservations
created by Executive Order, proclamation, or
otherwise for the use and occupation of Indians shall not be made except by Act of Congress.
9
13. The Parker Dam Act. On July 8, 1940, Congress passed an “Act for the Acquisition of Indian
Lands for the Parker Dam and Reservoir Project, and
for Other Purposes”, 54 Stat. 744 (“Parker Dam Act”).
By enacting the Parker Dam Act, Congress acknowledged and recognized the lawful creation of the Reservation:
“ . . . all the right, title, and interest of the Indians in and to the tribal and allotted lands of
the . . . Chemehuevi Reservation in California as may be designated by the Secretary
of the Interior.”
Parker Dam Act, 54 Stat. 744 (emphasis added).2
14. Organization of the Chemehuevi Indian
Tribe’s Tribal Government. In 1976, the Tribe organized a tribal government, under a written constitution, which, as subsequently amended, was approved
by the Secretary of the Interior under the provisions of
the Indian Reorganization Act, 25 U.S.C. § 5108 et seq.
(“IRA”). The Chemehuevi Indian Tribe is federally recognized. ER 12.
15. Arizona v. California, 373 U.S. 546 (1963).
In Arizona v. California, 373 U.S. 546 (1963) (“Arizona
v. California”), the State of California challenged the
authority of the Secretary of the Interior to issue the
2
At the direction of the Department of the Interior, the Metropolitan Water District prepared a map depicting those portions
of the Reservation that were designated by the Secretary for taking, pursuant to the Act of July 8, 1940. The map showed Section
36 to be within the boundaries of the Reservation. ER 386-87.
10
1907 Order creating the Reservation. This Court rejected the State’s challenge: “The Chemehuevi Reservation was established by the Secretary of the Interior
on February 2, 1907, pending congressional approval.”
Id. at 596 fn. 100. In ruling that the Reservation was
created by the 1907 Order, this Court confirmed that
the Secretary had the authority to create the boundaries of the Reservation and include all of the lands
withdrawn within those boundaries, including Section
36. Id.
16. Trust Patent. On June 28, 2010, the Bureau
of Land Management issued the Trust Patent for the
Reservation requested by the Tribe. ER 480-86. The
patent confirmed the boundaries of the Reservation, as
established by the 1907 Order.
“Whereas, there has been deposited in the
Bureau of Land Management an order of the
Secretary of the Interior dated February 2,
1907, withdrawing from settlement and entry
the following land: San Bernardino, California, Fractional townships T. 4 N., R. 25 E., T. 4
N., R. 26 E., T. 5 N., R. 25 E., T. 6 N., R. 25 E.,
the E/2 of T. 5 N., R. 24 E., and secs. 25, 26, and
36 of T. 6 N., R. 24 E. . . .”
ER 480.
17. Recognition of the Chemehuevi Indian
Reservation. The creation of the Reservation from
the Tribe’s aboriginal territory and the establishment
of the boundaries of the Reservation has been recognized by this Court, Arizona v. California, 373 U.S. 546,
11
596 fn. 100, 598 (1963); by the Indian Claims Commission, Chemehuevi Indian Tribe v. United States of
America, 14 Ind. Cl. Com. 651 (1965); and by the
United States District Court for the Central District of
California, October 10, 1995, Statement of Uncontroverted Facts and Conclusion of Law, United States v.
Ron Jorgenson, et al., United States District Court
Central District of California, Case No. CV-92-3809TJH (“Jorgenson”). ER 523-33. The establishment of
the boundaries of the Reservation was recognized by
the Secretary and by a decision of the Department of
the Interior (see 57 I.D. 87, 89 (1939)3 and the 1974 Secretarial Restoration Order cited therein); by Secretarial approval of the Tribe’s Constitution; Secretarial
approvals of leases, loans, and rights of way; and in numerous other ways throughout the years, including requests for congressional appropriations and in maps
produced by the Bureau of Indian Affairs.4
------------------------------------------------------------------
REASONS FOR DENYING THE PETITION
In vacating the district court’s judgment dismissing the complaint as to the individual plaintiffs/
3
In 1992, the Solicitor’s Office in Washington, D.C., also
issued a legal opinion concluding that the Secretary had the
authority to issue the 1907 order establishing the boundaries of
the Reservation. ER 400-02.
4
In 1931, the BIA produced two maps: (1) a grazing map of
the Reservation, ER 137; and (2) a map entitled “Chemehuevi
Valley Indian Reservation,” which both showed Section 36
within the boundaries of the Reservation as established by the
1907 Order. ER 138.
12
respondents, the Ninth Circuit ruled that: “The
Chemehuevi Reservation, as established by the 1907
Order, includes Section 36. Section 36 is therefore Indian country, and San Bernardino County does not
have jurisdiction to enforce California regulatory laws
within it.” Pet. App. 11a. At the beginning of its analysis, the panel stated, “[I]t is important also to note at
the outset what issues are not before us. We need
not—and do not—decide today who holds title to
Section 36.” Pet. App. 5a (emphasis added).
The Ninth Circuit’s decision was based on its conclusions that the Reservation was validly established
by the Secretary’s 1907 Order, that the 1907 Order included Section 36 within the boundaries of the Reservation, that the establishment of the Reservation and
its boundaries have been recognized by Congress and
this Court, that the boundaries of the Reservation cannot be changed or the Reservation diminished except
by act of Congress, and that Congress has not enacted
any such act. The Sheriff ’s Petition does not challenge
any of those conclusions.
The Sheriff ’s Petition is based exclusively on arguments asserting that the Tribe was not granted title
to Section 36, an issue never addressed by the Ninth
Circuit because title is irrelevant to the issue of
whether Section 36 is Indian country, 18 U.S.C. § 1151;
Solem v. Bartlett, 465 U.S. 463, 466-68 (1984) (“Solem”);
Seymour v. Superintendent, 368 U.S. 351, 357-58
(1962).
13
Moreover, the Sheriff ’s Petition addresses only one
of the criteria for granting a petition for a writ of certiorari identified in the Rules of the Supreme Court of
the United States, Rule 10: “The Ninth Circuit’s decision flatly departs from the decisions of this Court. . . .”
Pet. 12. In this opposition, the Tribe and the Respondents will demonstrate that the Ninth Circuit’s decision
is consistent with this Court’s decisions, does not raise
an issue of national significance, and is not in conflict
with the decisions of other federal circuits.
For these reasons, the Tribe and Respondents respectfully request that the Court deny the County’s
Petition for Writ of Certiorari.
I.
THE NINTH CIRCUIT’S DECISION IS CONSISTENT WITH THIS COURT’S DECISIONS
AND DOES NOT RAISE AN ISSUE OF NATIONAL SIGNIFICANCE.
A. The Ninth Circuit’s Decision Is Consistent with this Court’s Decisions Relating to the 1851 Act.
The Sheriff fails to recognize that “adjudicating
reservation boundaries is conceptually and quite distinct from adjudicating title to the same lands.” See
Pet. App. 5a (internal citations omitted). Despite the
Ninth Circuit holding limiting its decision to a determination of jurisdiction, the Sheriff wrongfully asserts
that the Ninth Circuit’s inquiry should have begun
with the 1851 Act, which addressed the determination
of title.
14
In order to fulfill its obligations to Mexico under
the Treaty of Guadalupe Hidalgo, 9 Stat. 922 (February 2, 1848), Congress enacted the 1851 Act, 9 Stat. 631
(1851) (“Act”), which required every person claiming
lands in California by virtue of any right or title derived from the Spanish or Mexican governments to
present the same for settlement to a commission created by the Act.
[E]ach and every person claiming lands in
California by virtue of any right or title
derived from the Spanish or Mexican
government, shall present the same to [the
land claims commission] . . . .
Section 8 of the Act, at 632 (emphasis added).
The cases cited by the Sheriff, Barker v. Harvey,
181 U.S. 481 (1901); United States v. Title Insurance &
Trust Co., 265 U.S. 472 (1924); and Chunie v. Ringrose,
788 F.2d 638 (9th Cir. 1986), have no application to the
issues before the Ninth Circuit because they dealt with
claims of title to land based on a patent issued in confirmation of grants made by the Mexican government.
Unlike the cases cited by the Sheriff, this case does not
involve any claim asserted by the Tribe or anyone else
to Section 36 derived from the Spanish or Mexican governments. The Sheriff has not identified any evidence
in the record that the Tribe or anyone else was required to file a claim to Section 36 under the 1851 Act.
In Cramer v. United States, 261 U.S. 219 (1923),
this Court found that the 1851 Act “plainly ha[d] no
application” because the Indians’ “claims were in no
15
way derived from the Spanish or Mexican governments.” 261 U.S. at 231. It is the same here. The Tribe
was not required to file a claim under the 1851 Act because its claims were not derived from the Spanish or
Mexican governments.
The Ninth Circuit’s decision does not create any
controversy regarding the 1851 Act.
B. The Ninth Circuit’s Decision is Consistent with this Court’s Decisions Relating to Enabling Acts and Tribal Land
Rights.
The Sheriff argues that the Ninth Circuit’s decision must be reviewed by this Court because it is inconsistent with decisions of this Court relating to
Enabling Acts and tribal land rights. The Ninth Circuit, the Sheriff argues, “inexplicably fails to address
its prior decision in Lyon [v. Gila River Indian Cmty.,
626 F.3d 1059 (9th Cir. 2010)], or any of the decisions
of this Court on which Lyon relies,” United States v.
Thomas, 151 U.S. 577 (1894), Wisconsin v. Hitchcock,
201 U.S. 202 (1906), and Beecher v. Wetherby, 95 U.S.
517 (1877). There is, in fact, nothing inexplicable about
the Ninth Circuit’s decision not to address Lyon and
the related cases of this Court cited by the Sheriff.
Lyon arose from a claim by the Gila River Indian
Community (“Gila River”) that it retained aboriginal
title to a Section 16 after the enactment of the Arizona
Enabling Act. The central issue in Lyon was whether
Gila River’s aboriginal title to Section 16 was
16
extinguished when it was conveyed to Arizona through
the Arizona Enabling Act. When title to the Section 16
was granted to Arizona, the section was not located
within the boundaries of the Gila River Reservation
and did not abut the reservation. After the section was
granted to Arizona, it was sold to private parties. As a
result of executive orders issued subsequent to the enactment of the Enabling Act that took land into trust
for Gila River, the Section 16 eventually came to be
surrounded by Gila River’s reservation lands. The section was never made part of Gila River’s reservation.
Because no treaty right or other form of recognized title predated the Arizona Enabling Act, the court concluded that “the conveyance extinguished the [Gila
River] Community’s aboriginal title to Section 16.”
Lyon, 626 F.3d at 1079.
The issues before the Ninth Circuit did not relate
to title to Section 36. “[A]djudicating reservation
boundaries is conceptually quite distinct from adjudicating title to the same lands. One inquiry does not
necessarily have anything in common with the other,
as title and reservation status are not congruent concepts in Indian law.” Navajo Tribe of Indians v. New
Mexico, 809 F.2d 1455, 1475 (10th Cir. 1987) (internal
quotation marks and footnote omitted); see Solem, 465
U.S. at 466-68. The issues before the Ninth Circuit
were whether Section 36, regardless of the ownership
and fee status of the land, constitutes Indian Country
pursuant to 18 U.S.C. § 1151 and, therefore, whether
the Sheriff is prohibited from exercising civil regulatory jurisdiction over Chemehuevi tribal members
17
within Section 36. The question of whether a state can
exercise jurisdiction over fee land located within the
boundaries of a reservation was “squarely put to rest
by congressional enactment of the currently prevailing
definition of Indian country in § 1151 to include ‘all
land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding the issuance of any patent. . . .’ ” Seymour v. Superintendent, 368 U.S. 351, 357-58 (1962).
The Ninth Circuit concluded that Section 36 is within
the boundaries of the Reservation, based on the 1907
Executive Order, which established the Reservation
and defined its boundaries, and Congress’s and this
Court’s recognition of the establishment of the Reservation and its boundaries.5 On that basis, the Ninth
Circuit concluded that Section 36 constitutes Indian
Country, 18 U.S.C. § 1151.
Whether the Section 16 constituted “Indian country,” pursuant to Section 1151, was not at issue in Lyon.
Whether the State of Arizona could exercise civil regulatory jurisdiction over tribal members within the Section 16 in question was not at issue in Lyon. Whether
the Executive Branch had the authority to issue the
executive order establishing the Gila River Reservation was not at issue in Lyon. The Ninth Circuit’s decision not to address Lyon was entirely justified.
The Sheriff ’s assertion that the Ninth Circuit
erred in not addressing Thomas, Hitchcock, and
5
See Parker Dam Act, 54 Stat. at 744; Arizona v. California,
373 U.S. at 596 fn. 100, 598.
18
Beecher is also groundless. Like Lyon, those cases focused on the issue of title to land based on a claim of
aboriginal title. Unlike Lyon, this Court in those cases
concluded that the tribes in question retained aboriginal title because their aboriginal title was recognized
in treaties with each of the tribes. The Tribe does not
claim aboriginal title to Section 36, nor does it claim
that it has entered into a treaty with the United
States. Thomas, Hitchcock, and Beecher are irrelevant
to the issues before the Ninth Circuit.
Moreover, the Sheriff ’s characterization of the law
relating to Enabling Acts and aboriginal title is demonstrably incorrect. “The Ninth Circuit decision departs
from the decisions of this Court holding that states
take title to property under the Enabling Acts subject
to aboriginal title only where a preexisting treaty has
preserved the aboriginal title.” Pet. 12 (emphasis
added). On the contrary, federal courts have consistently concluded that tribal occupancy rights and aboriginal title can be reserved by statute as well as
treaty: “Congress can create a reservation, reserve
rights to the Indians, and dispose of lands of the
United States by statute as well as by treaty.” Blake v.
Arnett, 663 F.2d 906, 909 (9th Cir. 1981). None of the
decisions cited by the Sheriff, furthermore, stand for
the proposition that aboriginal title can only be preserved by a treaty. Thomas, Hitchcock, and Beecher did
not address whether aboriginal title could be preserved by a mechanism other than a treaty.
Thus, to the degree that the Court might consider
addressing the question of whether title granted under
19
the California Enabling Act is relevant to the issues in
this case, the California Enabling Act itself rebuts the
Sheriff ’s position. “The 1853 Act excluded any land ‘in
the occupation or possession of any Indian tribe,’ 10
Stat. at 246-47,6 and the Kelsey survey of the Chemehuevis’ land, adopted by the Secretary, documents that
Section 36 falls in that exception.” Pet. App. 8A.
To the degree that the Court would consider
Thomas, Hitchcock, and Beecher to be relevant to the
issues in this case, they support the Ninth Circuit’s
conclusion that Section 36 is within the boundaries
of the Reservation. Thomas, Hitchcock, and Beecher
concluded that each tribe’s aboriginal title was not extinguished by the Enabling Act, because treaties recognized the tribes’ aboriginal title. See, e.g., Thomas,
151 U.S. at 584 (“[B]y virtue of the treaty . . . the title
and right which the state may claim ultimately to the
sixteenth section of every township for the use of
schools is subordinate to this right of occupancy of the
Indians.”). The 1853 Act, like the treaties in Thomas,
Hitchcock, and Beecher, recognized the Indian’s right
of occupancy.7
6
“[T]his act shall not be construed to authorize any settlement to be made on any tract of land in the occupation or possession of any Indian tribe, or to grant any preemption right to the
same.” 10 Stat. at 246-47. The Sheriff does not, at any point in his
Petition, acknowledge the existence or address the effect of this
provision of the Enabling Act.
7
The Lyon court acknowledged that, where a tribal right of
occupancy is recognized, a claim of title under an Enabling Act
did not defeat that right of occupancy. “In this case, at the time
that Section 16 was conveyed to Arizona, the Community had no
20
Finally, it is important to recognize that the Ninth
Circuit’s decision is also consistent with other decisions of this Court. In Minnesota v. Hitchcock, 185 U.S.
373 (1902) (“Hitchcock”), Congress enacted a statute in
1849 reserving title to Sections 16 and 36 to the State
of Minnesota for school purposes. At the time, those
sections were under the use and occupancy of the Red
Lake and Pembina Bands of Chippewa Indians. After
the United States reserved the sections for the State,
the United States entered into a treaty with the Red
Lake Tribe and included the sections within the
boundaries of the Red Lake Reservation. The State
later asserted that the tribe did not receive title to the
sections under the treaty because the sections had
been previously reserved to the State for school purposes. This Court found that the treaty recognized the
tribe’s occupancy rights, that the State’s title to the
land was subject to the tribe’s continued use and occupancy, and that the tribe’s right to use and occupancy
could only be extinguished by the United States.
Here, as in Hitchcock, the Chemehuevi used and
occupied Section 36 prior to the issuance of the patent
to Section 36 to the State of California. Like the Red
Lake Tribe in Hitchcock, the Chemehuevis’ right of use
and occupancy was expressly recognized—by Congress
in Section 6 of the 1853 Act. Whatever title California
received as a result of the issuance of the patent by the
United States to the State for Section 36, that title was
such recognized right of possession.” Lyon, 626 F.3d at 1078-79
(distinguishing Thomas, Hitchcock, and Beecher (emphasis original)).
21
subject to the Chemehuevis’ right of use and occupancy.
The Ninth Circuit’s decision does not depart from
the decisions of this Court addressing the interplay between Enabling Acts and Indian land rights. Its decision not to address Lyon, Thomas, Hitchcock, and
Beecher is not “extraordinary and unsupported” and it
does not require “the Court to intervene and provide
guidance in this critical area of the law.” Pet. 18. The
issues raised in this case have nothing to do with title
to Section 36 and, therefore, do not require this Court
to set down “clear guidelines concerning the grant of
land for schools under the Enabling Acts, and the interplay with tribal land rights.” Id.
C. The Ninth Circuit’s Decision is Consistent with this Court’s Decision in
Arizona v. California.
This Court’s decision in Arizona v. California, 373
U.S. 546 (1963) is directly relevant to the issues raised
in this case. The decision of the Court of Appeals is not
in conflict with, but in fact, is consistent with this decision.
In Arizona v. California, California asserted that
the Secretary did not have the authority to issue the
1907 Order creating the Reservation, establishing its
boundaries and thereby reserving enough water from
the Colorado River as was necessary to fulfill the purposes for which the Reservation was created. In rejecting California’s argument, this Court stated:
22
Congress and the Executive have ever since
[the establishment of the reservation at issue
by Executive Order] recognized these as Indian Reservations. Numerous appropriations,
including appropriations for irrigation projects, have been made by Congress. They have
been uniformly and universally treated as
reservations by map makers, surveyors, and
the public. We can give but short shrift at
this late date to the argument that the
reservations either of land or water are
invalid because they were originally set
apart by the Executive.
Id. at 596, citing United States v. Midwest Oil Co., 236
U.S. 459-75 (1915) (emphasis added).
These decisions by this Court leave no doubt that
the Chemehuevi Reservation was lawfully created by
the Secretary’s 1907 Order and that the recognition
of the Chemehuevi’s occupancy of Section 36 in the
1853 Act and the inclusion of Section 36 within the
boundaries of the Reservation did not affect whatever
title California received to Section 36 under the 1853
Act.8
8
The Sheriff, as an official of the County of San Bernardino,
is in privity with the State of California and therefore, this
Court’s holding in Arizona v. California, pertaining to the authority of the Secretary to issue the 1907 Order establishing the
boundaries of the Reservation, is res judicata and binding on the
Sheriff. Ute, 790 F.3d at 1007 (“It’s not just parties who are bound
by prior decisions: those in privity with them often are too, and
counties are usually thought to be in privity with their states for
preclusion purposes when the state has lost an earlier suit.”).
23
The Court of Appeals decision holding that it was
not deciding “who holds title to Section 36” and limiting its holding to whether Section 36 was “Indian country,” as defined by 18 U.S.C. § 1151, is, therefore, not in
conflict with the prior decision of this Court in Arizona
v. California, but is in fact consistent with that decision.
II.
THE NINTH CIRCUIT’S DECISION IS CONSISTENT WITH THIS COURT’S DECISIONS
RELATING TO THE APPROPRIATION
DOCTRINE.
The Sheriff argues that the Appropriation Doctrine barred the Secretary from withdrawing Section
36 and including it within the boundaries of the Reservation because the 1853 Act had previously conveyed
that section to California for school purposes. Pet. p. 19.
In support of his argument, the Sheriff cites Beecher v.
Wetherby, 95 U.S. 517 (1877) and Hastings & Dakota
Railroad Co. v. Whitney, 132 U.S. 357, 360-61 (1889)
(“ . . . that a tract of land lawfully appropriated to any
purpose becomes thereafter severed from the mass of
public lands, and that no subsequent law or proclamation will be construed to embrace it . . . ”). In fact, the
Appropriation Doctrine supports the Ninth Circuit’s
conclusion that Section 36 was properly included
within the boundaries of the Reservation.
Section 6 of the 1853 Act appropriated Section 36
for the use and occupation of the Indian tribes then occupying that section, “ . . . this act shall not be
24
constructed to authorize any settlement to be made on
any tract of land in the occupation or possession of any
Indian tribe. . . .” 10 Stat. at 246-47. Because of this
prior appropriation, the 1853 Act required California
to select in lieu lands9 in place of the Indian occupied
Section 36. The Appropriation Doctrine, thus, would
not permit Section 36 to be reappropriated for use by
the State of California. As a result, the 1853 Act did
not prohibit the Secretary from withdrawing and including Section 36 within the boundaries of the Reservation. Section 36 is “Indian country.”10
III. THE NINTH CIRCUIT’S DECISION IS CONSISTENT WITH CONGRESS’S INTENT TO
PREVENT CHANGES IN THE BOUNDARIES OF INDIAN RESERVATIONS CREATED BY A SECRETARIAL ORDER.
In challenging the inclusion of Section 36 within
the boundaries of the Reservation the Sheriff argues,
in effect, that the boundaries as established by the
1907 Order have been diminished. The Ninth Circuit
9
Section 7 of the 1853 Act provides: “where any settlement
. . . shall be made upon the . . . thirty-sixth sections . . . or where
such sections may be reserved for public purposes . . . other land
shall be selected by the . . . State in lieu thereof. . . .”
10
Even if the 1853 Act conveyed title to Section 36 to California, moreover, the underlying title California received, as set
forth above, was subject to the Tribe’s right of use and occupancy,
which could only be extinguished by the United States. 25 U.S.C.
§ 177, see Cramer v. United States, 261 U.S. at 228-29; Minnesota
v. Hitchcock, 185 U.S. at 389-90; Oneida Indian Nation v. County
of Oneida, 414 U.S. 661 (1974).
25
rejected that assertion, ruling that it could not conclude,
that the boundaries of the Reservation as established in the 1907 Order were later diminished. “We do not lightly infer diminishment
of reservations.” Confederated Tribes of Chehalis, 96 F.3d at 343-44. After 1927, Congress
prohibited any change to the boundaries of existing executive order reservations except by
Congressional act. Act of March 3, 1927, ch.
299, § 4, 44 Stat. 1347 (codified at 25 U.S.C.
§ 398d); see S. Pac. Transp., 543 F.2d at 686 &
n.15. There is no such act removing Section 36
from the Chemehuevi Reservation.
Pet. App. 9a.
Title 25 of the United States Code § 389d provides:
Changes in the boundaries of a reservation
created by Executive Order, proclamation, or
otherwise for the use and occupation of Indians shall not be made except by Act of
Congress.
25 U.S.C. § 398d (emphasis added). See also ER 850-56.
Section 398d is unambiguous. It evidences a clear
congressional intent to prevent the alteration or
changes in the boundaries of Indian reservations created by Executive Order, such as the 1907 Order, except by a later Act of Congress. This is true, even if a
parcel of land within those boundaries are or once were
in non-Indian ownership.
26
[O]nly Congress can divest a reservation of its
land and diminish its boundaries. Once a
block of land is set aside for an Indian reservation and no matter what happens to the
title of individual plots within the area,
the entire block retains its reservation status
until Congress explicitly indicates otherwise.
Solem, at 470 (emphasis added); see Opinion of the Solicitor, Authority of Secretary to Determine Equitable
Title to Indian Lands, 1974 DOINA LEXIS 47. ER 39499.
Congress has not diminished the boundaries of the
Reservation. Pursuant to 25 U.S.C. § 398d, and Solem,
Section 36 is Indian country.
IV. THE NINTH CIRCUIT’S DECISION IS NOT
IN CONFLICT WITH THE DECISIONS OF
OTHER FEDERAL CIRCUITS.11
The Ninth Circuit’s decision is a narrow decision
based on the specific history of the Tribe’s occupation
of lands, the lack of any treaty regarding the cession of
the Tribe’s lands, and the interplay of laws protecting
the Tribe’s occupation and those establishing the official boundaries of the Reservation. Additionally, the
Ninth Circuit’s decision does not address title to Section 36. Yet, pursuant to well settled principles of Indian law, the Ninth Circuit’s decision is consistent with
11
The Sheriff cites to no split in the circuit courts or includes
in his Petition a discussion of the other Circuit Court of Appeals
decisions that are relevant to the issues on this case.
27
both the Sixth Circuit and Tenth Circuit Court of Appeals decisions that are relevant to the issues raised in
this case.
A. The Ninth Circuit’s Decision Is Not in
Conflict with this Court’s or the Sixth
Circuit’s Analysis of 18 U.S.C. § 1151.
The Ninth Circuit addressed the issue of whether
Section 36 is Indian country without addressing the issue of title: “We therefore conclude that Section 36 is
within the Chemehuevi Reservation and hence ‘Indian
country’ under 18 U.S.C. § 1151(a).” Pet. App. 9a. The
Sheriff challenges the decision by alleging that Section
36 had been patented to the State prior to the creation
of the Reservation. Even if that allegation was true,
the Ninth Circuit’s decision about jurisdiction would
still be consistent with this Court’s decisions and the
Sixth Circuit’s analysis regarding the construction of
18 U.S.C. § 1151.
Land within the limits of any Indian reservation,
“ . . . notwithstanding the issuance of any patent . . . ”
is Indian country for purposes of determining federal,
state and tribal jurisdiction. 18 U.S.C. § 1151(a). In
fact, Indian country frequently includes non-Indian
land within the exterior boundaries of an Indian reservation. See Hagen v. Utah, 510 U.S. 399, 425-26
(1994) [“Reservation boundaries, rather than Indian title, thus became the measure of tribal jurisdiction”];
United States v. Crowe, 563 F.3d 969, 971 fn. 1 (9th Cir.
2009) [Montana town is “located within the exterior
28
boundaries of the Fort Peck Indian Reservation and
thus is ‘Indian country’ within the meaning of 18 U.S.C.
§ 1151(a)”]; Alexander Bird in the Ground v. District
Court of Thirteenth Judicial Dist., 239 F. Supp. 981,
983-84 (D.C. Mont. 1965), citing Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351,
358 (1962) [“ ‘Indian country’ includes private lands located within the exterior boundaries of an Indian reservation”].
The Sheriff ’s position is contrary to this Court’s
decision in Seymour. In Seymour, this Court rejected
the construction of § 1151 based “ . . . upon the ownership of particular parcels of land. . . .” 368 U.S. at 358.
The rationale of Seymour applies equally as well here
to reject the Sheriff ’s argument:
Such an impractical pattern of checkerboard
jurisdiction was avoided by the plain language of § 1151 and we see no justification for
adopting an unwarranted construction of
that language where the result would be
merely to recreate confusion Congress specifically sought to avoid.
Id. at 358.
There is no basis for limiting the application of
§ 1151 and Seymour to situations in which disputed
land was patented after an Indian reservation had
been created. Finding otherwise would constitute an
unwarranted construction of § 1151. The result would
be to recreate the confusion (i.e., checkerboard
29
jurisdiction) that Congress and this Court specifically
sought to avoid.
The Sixth Circuit has also recognized that adopting the Sheriff ’s position would require narrowly construing this Court’s holding regarding checkerboard
jurisdiction. In Cardinal v. United States, 954 F.2d 359
(6th Cir. 1992) (“Cardinal”), the Sixth Circuit also considered an assertion that certain property was not
within “Indian country” as defined by § 1151 because
it was granted to a state prior to the creation of an Indian reservation. Noting that “the district court [ ] concluded that, to the extent that the [ ] lands were sold
before the [ ] treaty became effective, that fact did not
impact upon whether the lands were ‘Indian country’
for the purposes of federal subject matter jurisdiction.”
The Sixth Circuit went on to acknowledge that reading
“the Seymour decision as extending federal jurisdiction over land patented to non-Indians only when that
land is patented subsequent to the establishment of the
Indian reservation . . . ” would mean that this Court’s
“concerns with checkerboard jurisdiction are to be construed narrowly. . . .” Id. at 363 (emphasis in original).12
The Sheriff argues that this Court’s holding with
respect to checkerboard jurisdiction should be narrowly construed but fails to point to any language in
12
The Cardinal court did not resolve whether such a narrow
construction was proper, as it would not have altered the court’s
finding of jurisdiction based on determining that the attempts to
transfer the disputed property “did not operate to exclude it from
the land set apart for Indian use under the treaty.” Id.
30
§ 1151’s definition to support its position. This Court
should not abandon its own precedent by adopting
such an unwarranted construction. Such an interpretation would recreate the confusion that Congress
specifically sought to avoid. See Moe v. Confederated
Salish & Kootenai Tribes of Flathead Reservation, 425
U.S. 463, 479 (1976) [“Congress by its more modern
legislation has evinced a clear intent to eschew any
checkerboard approach within an existing Indian reservation.”]; DeCoteau v. Dist. County Court for Tenth
Judicial Dist., 420 U.S. 425, 466 (1975) [“[C]razy quilt
pattern” or “ ‘checkerboard’ jurisdiction defeats the
right of tribal self-government” (Douglas, J., dissenting).]
The Ninth Circuit’s decision is consistent with the
Sixth Circuit’s decision in Cardinal and this Court’s
decisions pertaining to checkerboard jurisdiction.
B. The Ninth Circuit’s Decision Is Not in
Conflict with the Tenth Circuit’s Decision Regarding the Enforcement of State
Traffic Laws Against Indians in Indian
Country.
The Ninth Circuit’s decision that “[i]t is undisputed that the Sheriff cannot enforce regulatory traffic
laws in ‘Indian country’ ” is consistent with the Tenth
Circuit’s decision in Ute Indian Tribe of the Uintah &
Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir.
2015) (“Ute”). In Ute, the Tenth Circuit held that the
Ute tribe was entitled to enjoin state and county
31
officials from prosecuting Indians for traffic violations
allegedly committed on Indian land because the officials had no civil regulatory authority to do so. Id.
The facts in Ute are similar to those here: An enrolled member of a tribe was stopped by a state/county
local official and cited for committing a traffic offense
in an area recognized as Indian country. Ute, 790 F.3d
at 1006. The Tenth Circuit cited to 18 U.S.C. § 1151 and
found that local officials of a state political subdivision
could not prosecute an enrolled member of a tribe for
alleged offenses that took place within reservation
boundaries. Id. The Ninth Circuit also cited to 18
U.S.C. § 1151 in concluding that Section 36 was within
the Tribe’s reservation boundaries. Like the Tenth Circuit in Ute, the Ninth Circuit concluded that the Sheriff does not have jurisdiction to enforce traffic offenses
against Indians in Section 36 since it is Indian country.
------------------------------------------------------------------
32
CONCLUSION
For the foregoing reasons, the Tribe and Respondents respectfully submit that the Petition for Writ of
Certiorari should be denied.
Respectfully submitted,
LESTER J. MARSTON
Counsel of Record
RAPPORT AND MARSTON
405 West Perkins Street
Ukiah, CA 95482
(707) 462-6846
Marston1@Pacbell.Net
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.