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

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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.

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