Amicus Brief — Solem v. Bartlett

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NO. 82-1253 3 Court, U.S.

TLL E D

IN THE aus 4 1983

SPupreme Court of the Un Leduatutens

October Term, 1983

HERMAN SOLEM, et al.,

Petitioners,

Vv.

JOHN BARTLETT,

Respondent.

On Writ of Certiorari to

The United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE COUNTIES OF DUCHESNE

AND UINTAH, UTAH; COUNTIES OF MOUNTRAIL, WARD,

AND MCLEAN, NORTH DAKOTA; LAKE COUNTY,

MONTANA; MAHNOMEN COUNTY, MINNESOTA; AND THE

TOWNS OF HOBART AND ONEIDA, WISCONSIN, AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Robert Holte Dennis L. Draney

Mountrail County Attorney Counsel of Record

Duchesne County Attorney

Tom Slorby 57 N. 100 East

Ward County Attorney Suite 1. Box 1886

Roosevelt, Utah 84066

Merle Torkelson (801) 722-5066

McLean County Attorney

John Frederick Mark Nash

Lake County Attorney Uintah County Attorney

Kenneth Rottier Michael J. Kraker

Attorney for the Town of Oneida Mahnomen County Attorney

Jeffrey J. Gilson

Attorney for the Town of Hobart

eee nnn Lt WH ___________._—____

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....cceeeveccseess

INTEREST OF THE AMICI see eieeneeeeeeeee#ee’

SUMMARY OF ARGUMENT ....cceeeceecceces

ARGUMENT *enereoneeeeeneeeeeeeeeeneeeeeeeeee

THE PURPOSE UNDERLYING THE

1908 SURPLUS LAND ACT AT

ISSUE WAS UNQUESTIONABLY

ONE OF DISESTABLISHMENT......

Rosebud and DeCoteau Rep-

resent a Significant De-

parture from the Court's

Previous Decisions in

the Disestablishment

CONTERE wccncccccccdteocces

The Prevailing Federal

Policy *eeereieeneneeeeneeweeeteee

The Significance of

Public Domain Language ..

Subsequent Administrative

and Legislative Treat-

ment: Past-Tense and

Related References ......

Restoration of the Undis-

posed of Surplus Lands

Under the 1934 Indian

Reorganization Act ......

F. Continued Federal

Presence in the Area .... 58

CONCLUSION eeeeeveeeveeeveeeveeeeeeeeeeeeeee 60 ”

- ili -

TABLE OF AUTHORITIES

Page

Cases:

Appawora v. Brough,

431 U.S. GOL (1977) ..cccccccccccecccecs 28

Ash Sheep Co. v. United States,

252 U.S. 159 (1920) ...cccccccccccccceee 58

Beardslee v. United States,

387 F.2d 280 (8th Cir. 1967) ......... 41

Beecher v. Wetherby, 95 U.S. 517

ERE ED cockoeedencccScnnscscevevicosscoess 43

City of New Town, North Dakota v.

United States, 454 F.2d 121

PETE ss DOPED 6s cccnawsbenereecce 5, 6, 48

Confederated Salish and Kootenai

Tribes v. Namen, 665 F.2d 951

(9th Cir. 1982), cert. denied,

iL a: 103 S. Ct. 314

MEAD Suk cancrg gue nesaant0esadnee cd 7, 29, 48

DeCoteau v. District County Court,

420 U.S. 425 (1975). .ccccccccecveees passim

Draper v. United States,

ABS DiBs 260 (ABDC). ccrccccccsccvccccess 26

Ellis v. Page, 351 F.2d 250

(LOG Cie. 1965S) cccccccccccvcccccees ase Gl

Hollister v. United States,

145 F. 773

(GER Civ. 1906) .cccsscccccccccs 36, 38, 39

Leavenworth, Lawrence, and

Galveston Railroad Co. v.

United States, 92 U.S. 733

GRU sectaccsoccecces sd gees babe 43, 44

Leech Lake Band of Chippewa

Indians v. Herbst, 334 F. Supp.

1001 (D. Mimm. 1971) «----seeeeeeeeee Ll, 41

Lower Brule Sioux Tribe v.

avn” * * ones on of

> Cc Kes

June 27, 1 SEE oooeseoesecsabeeesseereess 27

Mattz v. Arnett, 412 U.S. 481

(1973) rere ere eee ener ere eee 18, 19, 20, 37

- iv -

Missouri, Kansas, and Texas

Railroad Co. v. Roberts,

152 U.S. 114 (1894) ...ccccccccccees 43, 44

Moe v. Confederated Salish

and Kootenai Tribes of the

Flathead Indian Reservation,

425 U.S. 463 (1976) ecccccccccccccccscces 25

Montana v. United States,

450 U.S. 544 (1981) 23, 26, 30,

cagbactds déuneae 36, 37

Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191 (1978)........ 29, 39

Puyallup Tribe, Inc. v.

Department of Game of

Washington, 433 U.S. 165

CROFT Fhioke vaced 55s kobe 0skcothoenak ances ai, 22

Rosebud Sioux Tribe v. Kneip,

430 U.S. SBA (1977) cccccscccccccccs passim

Rosebud Sioux Tribe v. Kneip,

521 F.2d 87 (8th Cir. 1975),

aff'd, 430 U.S. 584

REPRE Eek ne fdas vacvdads cceguacess 35, 36, 49

Russ v. Wilkins, 624 F.2d 914

(9th Cir. 1980), cert.

denied, 451 U.S. 908

(i981)

41, 46,

Fae c éominy eae ogee eensdéuhione 48, 49, 55

Scott v. Carew, 196 U.S. 100

(1905) ccccccccccccccccccccccccscccescsvees 44

Seymour v. Superintendent,

368 U.S. 352 (1962) ------- 17, 18, 20, 41

Spalding v. Chandler,

160 U.S. 394 (1896) ----eeeeeeeees - 43, 44

Starr v. Long Jim, 227 U.S.

BED SERRE ccccoccceesccee ocevtanequbaneeecn

State v. Clark, 282 N.W.2d

902 (Minn. 1979), it

, 445 U.S.

COREE OHHH HER OHH OEE EHH HH Eee 9, 10

Uintah and White River ‘

Bands of Ute Indians v.

United States, 319 Ct. Cl. 1

ap ate core er eee ee eee eee eee eeeeeeeeeeene 3

Sere a Beck

SHSSHSSSHSSSS SSS SSHSHHSHHSHSHHHHHSOGO SOO

United

United States v. National

Association of Securities

Dealers, Inc., 422 U.S.

DET boc dwee vedas doccceocccocedecces

United States v. Oklahoma Gas

& Electric Co., 318 U.S.

DE? st0. lies seehebocdcovsbereveses

United States v. Pelican,

aia Me CRORES. cicbcceviccccee 4l,

United States v. Southern

Pacific Transportation

Co., 543 F.2d 676 (9th

Came eD.. descccsceec 26, 38, 41, 49,

United States ex rel.

Condon v. Erickson,

478 F.2d 684 (8th Cir.

J | ae DMitinbnncscdecocéssecews 17,

United States ex rel.

Cook v. Parkinson,

525 F. 120 (8th Cir.

1975), cert. denied,

SE IEE, MAUEED cc ccccsccccccdacnnes

United States ex rel. Feather

v. Erickson, 489 F.2d 99

Di ETE. epossegeccecconeceees 19,

Ute Indian Tribe v. State of

Utah, es oe 1072

(D. Uta 81), a als

nding, Nos. $1 Ba7 &

sat (10th | 2) re 2, 27, 29, 45,

White Earth Band of

Chippewa Indians v.

Alexander, 683 F.2d

1129 (8th Cir.), cert.

, U.S. ,

teres ct. 489 (1982) ............. . 9,

Wilcox v. Jackson, 13 Pet.

GED CESSS) ccccccccccerecccccccccccccooscs

Wilson v. Omaha Indian Tribe,

442 U.S. G59 (1979) 2... ccccccccccccccees

Zuber v. Al’.en, 396 U.S.

eee Ge GD ncesseeeereeececeteeeeeeseunes

- vi -

Treaties and Statutes:

Treaty of February 3, 1838,

FT Beat. S66 ccccvcccccccccevcccccevesccce 12

Act of May 5, 1864, 13 Stat. 63 -+rsreeess 2

Act of March 3, 1873, 17 Stat. 633.-++ «+. 46

Act of July 4, 1884, 23 Stat. 76 «-++«++- 46

24 Stat. 388, 1887 General

Allotment Act .ccccccccccccccccccscses 12, 36

Act of January 14, 1889,

25 Stat. 642 cecccccccccccvcescoscseseses 9

Act of June 7, 1897, 30 Stat. 62 «..-s+ee-- 3

Act of March 2, 1889, 25 Stat. 888....... 46

Act of April 23, 1904,

33 SCAC. 3O2 ccccccccccvcccccccvcdssore 7, 8

Act of June 23, 1906, 34 Stat. 325....... 12

BE d. TO evap useveocvvceveseqccvcesiodacdes 8

Act of May 29, 1908,

35 Stat. 460 .nccccccccccsccccces 16, 40, 45

Act of June 1, 1910, 36 Stat. 455........ 6

BT DERE . TG9S cccccdeccoddcccesssevecscvcccetese 5

SO Bees, UISG cccceccccvcceccvvescecssseecvosess 5

48 Stat. 984, 1934 Indian

Reorganization Act ccveesececeeeees 15, 55

eS LT Per rrrrrrrrriit; col) 4

18 UW.G.Cw § 1162 cccccccccccccccccccves «> 10, 13

2B U.B.Cc 8 139GO ccccccccccecdccccccsisee 10, 13

Congressional Materials:

H.R. Rep. No. 791, 50th Cong.,

lst Sess. (1888) ....-..- eeee 31, 32, 38, 42

H.R. Rep. No. 2967, 5lst Cong.,

lst SeSS. (1890) .--ceceecceceeeceecceese 42

H.R. Exec. Doc. No. 247,

5lst Cong., lst Sess.

(1B9G) ccccccccccccccccccccccccocccesccsse 10

S. Rep. No. 57, 53d Cong.,

lst Sess. (1893) eee eee eee eee wee ee eeee 37

XVII Cong. Rec. 2271,

2306-10 (1886) TROP e eee eee eee eee eee eee) 31

MXVI Cong. Rec. 6236, 7689 (1894)--++++++-++ 32

- vii -

Miscellaneous:

Executive Order of October 3,

1861, I Kappler 900 ....eeeeeeeencees 2

Executive Order of January 5,

1882, I Kappler 901 ....ceeeeeccccecss 2

lL Fed. ROG. 666 ..ncccccccccccccccces 53, 54

lL Fed. REG. 1738 ...ccccccccccccccseccees 56

3 Fed. REG. 5 ccccccccvcccccvccsceccccses 54

3 Fed. Reg. 399 ..ccccccccvcvcccscess 54, 57

3 POG. ROG. S67 cccccccccvcccccccccccccecs 57

3 Ped. ROG. 2223 ..cccccccccccccsevvccees 57

DS HOG. MOGs LEGO ccccccccccccccavcseces ‘sa

6 Fed. Reg. 3300, amended

Da ie Me GTS ceccccscecce 53, 56, 57

Pers BOMER ve ccccccccccccovccceses 57

10 Fed. Reg. 12409 ...nccccccccccccces 3, 57

SS re rr ree 54

17 Ped. Reg. 1065 ...ccccccccvvccvece 53, 56

35 Ped. Reg. LOGOL ....cccccccccccccccces 57

35 Fed. Reg. 12962 .....cecvccccees viewas 57

36 Fed. Reg. 17450 2... .nceccccccccsecveses 57

46 Fed. Reg. 1040 .. cc reece cece cccecccces 57

46 Fed. Reg. 26562 2... cceccccvescccsecs 57

46 Fed. Reg. 46407 2... ee eevcreccccccces 57

46 Fed. Reg. 46681 2... ener vec eececcvcces 57

46 Fed. Reg. 47116 2... cee eee eecccccccnes 57

47 Fed. Reg. 15162 <.... ccc ccccccccsvcenss 57

47 Fed. Reg. 23812 ... cere ecececccccces BF

AT Fed. ROG. 2IBLZK, .cccccccccccscccccces 57

47 Ped. ROG. 26243 ...ccccccccccces pio oe

47 Ped. Re@e BALTES ..ccccccccesccsccce cot me

[1885] Report of Secretary

GE the IMECSIOCE ....ccccccces 30, 31, 32

ap Report of Secretary

Ce - BOE SOE ccc ee ccccee - 30, 31, 32

(1888) Report of Secretary

the Interior ......ccceeee 30, 31, 32

ses) Report of Commissioner

of Indian Affairs ..........+++++ 31, 32

won Report of Secretary

f the Interior ........eeeeeee0+ 32, 43

(1890) Report of Commissioner

f Indian Affairs ....... 31, 32, 38, 43

“fo. [ar

[1891]

84 I.D.

- vili -

Report of Secretary

Se SOS asccdeaces socvcesece :

Report of Commissioner

Indian Affairs Ke66.36 eevece 31, 32,

Report of Secretary

CHO TetOsic€ ..icsiccces <> ae aaa

Report of Commissioner

Indian Affairs ...... viceebes 31,

Report of Secretary

Che Interior ...ccccccccccccsccecs

Report of Commissioner

EnGian ALEALIES ..ccccccccccces eee

Report of Commissioner

Indian Affairs ...ccccccccccecs ees

D MEUTED crccocéssvchwosaes ee

INTEREST OF THE AMICI

Commencing in the early 1970's, judicial

, decisions in favor of Indian tribes have

resurrected the reservation status of a number

of areas which were originally Indian

reservations but which were thought to have

been disestablished by congressional

enactment long ago. Despite the several

decisions of this Court which were intended

to clarify the matter, confusion in this area

of the law persists, and the lower courts

continue to find that historic reservation

areas still exist despite persuasive evidence

to the contrary. The Counties and Towns

joining in this brief all contain areas that

were at one time established as Indian

reservations. The question of whether these

historic reservations continue to exist today

is of considerable importance to the Amici,

since reservation status significantly

affects the extent to which a state and its

local subdivisions may exercise governmental

-2-

authority within those areas. See, €.g9.,

DeCoteau v. District County Court, 420 U.S.

425, 427 n.2 (1975). Thus, the principles and

guidelines used by the courts, particularly

this Court, are of paramount concern to the

Amici Towns and Counties. The specific

concerns and interests of the various Amici

are separately discussed below.

The Utah Counties:

The Counties of Duchesne and Uintah are

presently involved in litigation over the two

historic Indian reservation areas located

within their boundaries. Ute Indian Tribe v.

State of Utah, 521 F. Supp. 1072 (D. Utah

1981), appeals pending, Nos. 81-1827 & 81-1901

(10th Cir.). They are: the original Uintah

Indian Reservation established by Executive

Order of October 3, 1861 (I Kappler 900) and

the Act of May 5, 1864 (13 Stat. 63); and, the

Original Uncompahgre Indian Reservation

established by Executive Order of January 5,

1882 (I Kappler 901). Both these historic

Pei

reservations were allotted and opened to entry

pursuant to surplus land acts enacted in the

late 1800's or early 1900's. By Presidential

Proclamation of July 14, 1905 (34 Stat. 3119),

it was proclaimed that, pursuant to the surplus

land act of May 27, 1902 (32 Stat. 245, 263)

and amendments thereto, the unallotted and

unreserved lands of the historic Uintah

Reservation were to be opened for public entry

and settlement. See, e.g., Uintah and White

River Bands of Ute Indians v. United States,

139 Ct. Cl. 1, 22 (1957). And, pursuant to

the Act of June 7, 1897 (30 Stat. 62, 87), the

unallotted lands of the Uncompahgre

Reservation were opened to public entry. See,

e.g., [1911] Report of the Commissioner of

Indian Affairs at 92. Subsequent to the

opening of these reservation areas, only the

lands which were reserved from the opening for

the Ute Tribe, along with the lands

subsequently restored to tribal ownership and

reservation status (see 10 Fed. Reg. 12409;

a at

oe” ee © ee

a @-

62 Stat. 72), were, until recent years, treated

as that Tribe's existing reservation.

The boundary dispute involving the two

historic Ute reservations is similar, in

several crucial respects, to the case before

this Court: restoration to public domain

language plays a prominent role ii each case;

and, important aspects of the subsequent

administrative and legislative treatment of

: the two historic reservations pubotanebalin

parallel those of the opened area at issue

here. As a result, the resolution of this

case is particularly important for Duchesne

and Uintah Counties because the Court may well

address matters which could have a direct and

significant impact upon their boundary

dispute.

The North Dakota Counties:

Within the Counties of Mountrail, Ward,

and McLean is located the original Fort

Berthold Indian Reservation as established by

the Act of March 3, 1891 (26 Stat. 1032). The

status of this historic reservation was

the subject of the decision in City of New

Town, North Dakota v. United States, 454 F.2d

121 (8th Cir. 1972) -—- a decision which

antedates both DeCoteau v. District County

Court, 420 U.S. 425 (1975) and Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584 (1977). In 1979,

the Eighth Circuit expressly "“adhere[d]" to

its opinion in New Town without conducting an

independent reexamination of the surplus land

act involved in that decision. See United

States v. Dupris, 612 F.2d 319, 323 (8th Cir.

1979), vacated mem. 446 U.S. 980 (1980).

Pursuant to the Act of June 1, 1910 (36

Stat. 455), the unallotted and unreserved

lands of the original Fort Berthold

Reservation lying east and north of the

Missouri River (which roughly traverses the

reservation diagonally from northwest to

southeast) were opened to public entry. See

37 Stat. 1693; 39 Stat. 1748. Thereafter,

until the early 1970's, the opened lands were

a6 <-

understood and treated as having been

disestablished. See New Town, 454 F.2d at

123. The 1910 surplus land act is very much

like the act at issue in this case. In

particular, like the 1908 Cheyenne River Act,

it has: (1) a "sell and dispose" provision

(§ 1, 36 Stat., at 455); (2) a school lands

provision (§ 8, 36 Stat., at 457); and (3) a

prohibition against the introduction of

intoxicants provision (§ 13, 36 Stat., at 458).

In addition, several important aspects of the

subsequent administrative and legislative

treatment of the opened portion of the original

Fort Berthold Reservation substantially

parallel those present in the instant case.

Hence, the resolution of this case will likely

have an important bearing on any future

litigation which might arise in regard to the

reservation status of the opened portion of

the original Fort Berthold Reservation.

The Montana County:

A substantial portion of Lake County,

Montana, is included within the original

Flathead Indian Reservation as established by

treaty in 1855 (12 Stat. 975). The status of

this historic reservation was the subject of

the decision in Confederated Salish and

Kootenai Tribes v. Namen, 665 F.2d 951 (9th

Cir.), cert. denied sub nom. City of Polson,

Montana v. Confederated Salish and Kootenai

Tribes, _—*U.S. __—_—si, 103 S. Ct. 314 (1982).

Pursuant to the Act of April 23, 1904 (33 Stat.

302}, as amended, the unallotted and

unreserved lands of the original Flathead

Reservation were opened for entry and

settlement in 1910. See 36 Stat. 2494.

thereafter, the State and local governments

exercised unquestioned jurisdiction over the

opened and unrestored portions of that area

for some forty years.+ See, e.g., Pet. for

Writ of Cert. at 20-21, 28, City of Polson,

Montana v. Confederated Salish and Kootenai

Tribes, Sup. Ct. No. 81-2406. The 1904

Flathead Act, as amended, is identical to the

1908 Cheyenne River Act in two crucial

respects. It has both a school lands provision

(§ 8, 33 Stat., at 303-04) and a prohibition

against the introduction of intoxicants

provision which was added by subsequent

amendment in 1909 (§ 21, 35 Stat. 781, 795-

96). Moreover, there are important similari-

ties between the subsequent administrative and

legislative treatment of the original Flathead

Reservation and that present in the instant

case. See, e.g., Pet. for Writ of Cert.,

Supra, at 21-22, 28-30. Obviously then,

1. Under Public Law 280, the State of Montana

assumed full criminal jurisdiction and

some civil jurisdiction over all Indian

country within the original PFlathead

Reservation in 1965. see. e@.g., Bete for

Writ of cast: at 6 Le i

-=9-

Lake County is joining herein because the

resolution of this case could have a

significant effect on any future litigation

which implicates the reservation status of the

opened portion of the original Flathead

Reservation.

The Minnesota County:

Mahnomen County is located within the

original White Earth Reservation as estab-

lished by the Treaty of March 19, 1867 (16

Stat. 719). The status of this historic

reservation was the subject of the decisions

in White Earth Band of Chippewa Indians v.

Alexander, 683 F.2d 1129 (8th Cir.), cert.

denied, _—s U.S. se, 103 S.Ct. 489 (1982),

and State v. Clark, 282 N.W.2d 902 (Minn.

1979), cert. denied, 445 U.S. 904 (1980). In

1889, title to those lands of the original

White Earth Reservation not necessary for

allotments was ceded by the White Earth Indians

to the United States under the Act of January

14, 1889 (25 Stat. 642); most all of the

’ . “

| | =

7 rs P oo ,

- 10 =

remainder of the Reservation was subsequently

allotted under § 3 of the Act. See, e.g.,

H.R. Exec. Doc. No. 247, S5lst Cong., lst Sess.

34-37 (1890); Department of the Interior

- Office of Indian Affairs, General Data

Concerning Indian Reservations 6 (1929).

After formal approva’) of the cession agreement

in 1890 (see H.R. Exec. Doc. No. 247, at l-

2), the State had, until recent years,

continuously exercised full governmental

authority within the original reservation,

except on tribal and allotted trust lands. 2

In State v. Clark, it was held that the

Original White Earth Reservation was not

2. Under Public Law 280, the State of

Minnesota was given civil and criminal

jurisdiction over all Indian country

within the State except within the

present Red Lake Reservation. See. e ’

18 U.S.C. § 1162; 28 U.S.C. § 60.

‘22 «

disestablished by the 1889 surplus land act.3

In so holding, the Minnesota Supreme Court

relied heavily on a U.S. District Court

decision antedating Rosebud and DeCoteau --

Leech Lake Band of Chippewa Indians v. Herbst,

334 F. Supp. 1001 (D. Minn. 1971). Thus, the

Amici Counties’ primary concern is the

significance of DeCoteau and Rosebud in

relation to the continued viability of earlier

boundary decisions -- a problem which is

presented here as the decision under review

is ultimately based upon a pre-DeCoteau and

Rosebud decision. See discussion, infra at

Sec. IA. Hence, Mahnomen County is joining

in this brief in order to ensure that the role

they believe Rosebud and DeCoteau play in this

regard is fully presented to the Court.

3. In White Barth Band of Chi wa Indians

Vv. exander, Ma er

affected counties were found to be

collaterally estopped from relitigating

the disestablishment issue decided in

Cc ark. White Earth Band, 683 F.2d at

e 19 «

The Wisconsin Towns:

Lastly, the Towns of Hobart and Oneida,

Wisconsin, have a general interest in cases

of this type. Like a great many local

governments in the West and Midwest, the Towns

administer areas which were at one time Indian

reservations but whose lands lost their tribal

character as a result of federal actions taken

pursuant to the allotment policy of the late

nineteenth and early twentieth centuries.

Both Towns are located within the original

Oneida Indian Reservation as established by

Treaty of February 3, 1838 (7 Stat. 566).

During the late 1800's and early 1900's,

virtually all of the lands of that historic

reservation were allotted and patented in fee

simple under the 1887 General Allotment Act

(24 Stat. 388) and the Act of June 23, 1906

(34 Stat. 325, 280-81). After that, the

original reservation had been regarded by all

concerned as having been disestablished, and

the State and local governments have exercised

«#13 <-

full governmental authority within that area,

except on tribal trust and allotted lands.

Recently, however, the suggestion has been

made, based on dicta in the judicial decisions

of recent years, that the historic Oneida

Reservation still exists and consequently, the

Towns' jurisdiction is limited.4 °

The Towns are most concerned with the

alarming trend in recent decisions to ignore

the federal policies which prevailed during

the period in question (viz., assimilation of

the Indian population and reduction of the

existing reservation areas), and to resurrect

the boundaries of Indian reservation areas

thought to have been disestablished long ago.

They therefore join in this brief in order to

insure that the historical perspective is

fully presented and to urge that the Court

4. Under Public Law 280, the State of

Wisconsin was granted civil and criminal

jurisdiction over all Indian country

within its borders. See 18U.S.C. § 1162;

28 U.S.C. § 1360.

pn ee

& '1@ «

avoid any dicta which may encourage lower

courts to find that historic Indian

reservation areas still exist in the face of

historical evidence to the contrary.

SUMMARY OF ARGUMENT

The Amici do not intend to track all

aspects of the disestablishment case presented

here. The briefs of the Petitioners and the

Amici Counties of Dewey, South Dakota et al.,

fairly address the merits of the case in its

entirety, and the Amici fully concur in the

views expressed therein. The Amici are writing

separately here for the purpose of

highlighting those aspects of this case

similar or identical to their situation which

merit especial treatment. Specifically,

discussion will be had as to the importance

of Rosebud and DeCoteau in this context

generally, and the significance which should

be attributed the following matters in the

disestablishment analysis: the prevailing

federal policies of the era; the presence of

= }§ «

public domain language; certain crucial

aspects of the subsequent administrative and

legislative treatment including restoration

of opened but undisposed of lands to tribal

ownership and reservation status under the

1934 Indian Reorganization Act (48 Stat. 984);

and continued federal presence in the opened

area in question. The Amici believe that the

role these matters play were not fully explored

in the disestablishment cases previously

presented to this Court or in the other briefs

submitted in this case. We, of course,

recognize that under the prevailing analysis,

each case must be decided on its facts. See,

e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S.

584 (1977); DeCoteau v. District County Court,

420 U.S. 425 (1975). Nevertheless, it is

important to develop the common threads

between the numerous surplus land acts enacted

in the late 1800's and early 1900's (see

National Indian Law Library, Compilation of

Allotment/Cession Statutes, Cat. No. 002279),

- 16 -

in order to enable the Court to make an informed

decision, and, at the same time, provide useful

guidance for similar cases which may arise in

the future.

ARGUMENT

I. THE PURPOSE UNDERLYING THE 1908

SURPLUS LAND ACT AT ISSUE WAS UN-

QUESTIONABLY THAT OF DISESTAB-

LISHMENT

The Amici agree with the Petitioners that

the underlying purpose of the Act of May 29,

1908, 35 Stat. 460, was to disestablish those

portions of the Cheyenne River Reservation

(and, by necessary implication, the Standing

Rock Reservation) opened to entry and

settlement under that Act. fThe principles

which govern the analysis in this context are

well established (see, e.g., Rosebud, 430 U.S.

at 586-87; DeCoteau, 420 U.S. at 444); and,

therefore, need not be repeated here. Suffice

it to say that the focal point of inquiry is,

as in any case involving the interpretation

of federal legislation, congressional intent.

- i7 -

See Rosebud oux Tribe v. Kneip at 586;

DeCoteau v. District County Court at 444.

A. Rosebud and DeCoteau Represent a

Significant Departure from the

Court's Previous Decisions in the

Disestablishment Context.

Although several other cases are cited,

it is fair to say that the decision of the

lower court ultimately rests upon United

States ex rel. Condon v. Erickson, 478 F.2d

684 (8th Cir. 1973), as that is the only case

in which the effect of the 1908 Act at issue

was independently examined. See 691 F.2d 420

at 421. As that case predates Rosebud and

DeCoteau, and relies upon narrow and outdated

principles, the Amici believe that Erickson

cannot be considered persuasive precedent.

Because of the importance DeCoteau and Rosebud

play here, it would be worthwhile to examine

the evolution of the Court's decisions in this

context.

The Court's treatment of the disestab-

lishment question in recent years begins with

Seymour v. Superintendent, 368 U.S. 351

e 18

(1962). At issue in that case was a 1906 Act

which opened up the surplus lands of the

southern part of the Colville Indian

Reservation for entry and settlement. The

Court held that since express language of

termination was not used, that Act was not

intended by Congress to disestablish the area

affected:

Nowhere in the 1906 Act is

there to be found any language

Similar to that in the 1892 Act

{which terminated the northern half

of the Reservation] expressly

vacating the South Half of the

reservation and restoring that land

to the public domain. Quite the

contrary, the 1906 Act repeatedly

refers to the Colville Reservation

in a manner that makes it clear that

the intention of Congress was that

the reservation should continue to

exist as such... .

Seymour v. Superintendent, at 355. And, when

the Court next considered the disestablishment

question some ten years later in Mattz v.

Arnett, 412 U.S. 481 (1973), the absence of

express language of termination once again

featured prominently as the following passage

from that case illustrates:

- 19 -

More significantly, throughout the

period from 1871-1892 numerous

bills were introduced which

expressty provided for the

termination of the reservation and

did so in unequivocal terms.

Congress was fully aware of the

means by which termination could be

effected. But clear termination

language was not employed in the

1892 Act [which opened up the

surplus lands of the Klamath

Reservation for settlement]. This

being so, we are not inclined to

infer an intent to terminate the

reservation. ...

Mattzv. Arnett, at 504 (emphasis inoriginal).

Thus, after Seymour and Mattz, the absence of

presence of express language of termination

was generally viewed as crucial to the

disposition of a reservation boundary dispute.

See, e.g., United States ex rel. Feather v.

Erickson, 489 F.2d 99, 102 (8th Cir. 1973).

And what was apparently critical to this

approach was the Court's perception of the

prevailing policies of the era:

The meaning of those terms [the

terms of the 1692 Act] is to be

ascertained from the overview of the

earlier General Allotment Act of

1887, 24 Stat. 388. That Act

permitted the President to make

allotments of reservation lands to

resident Indians and, with tribal

consent, to sell surplus lands. Its

policy was to continue the

reservation system and the trust

status of Indian lands, but to allot

tracts to individual Indians for

agriculture and grazing. When all

the lands had been allotted and the

trust expired, the reservations

could be abolished. Unallotted

lands were made available to non-

Indians with the purpose, in part,

of promoting interaction between

the races and of encouraging Indians

to adopt white ways.

Mattz v. Arnett, at 496 (footnote omitted).

Since Seymour and Mattz, this Court has

twice more considered the effect of various

surplus land acts, first in DeCoteau v.

District County Court, 420 U.S. 425 (1975),

and then in Rosebud Sioux Tribe v. Kneip, 430

U.S. 564 (1977). The Amici believe that these

two decisions represent a_- significant

departure from the approach taken in the

earlier cases. This is evident not only from

the dissents entered in both cases but from a

- 21 -

footnote ina later decision, Puyallup Tribe,

Inc. v. Department of Game of Washington, 433

U.S. 165 (1977). First, the dissenters in

DeCoteau emphasized that “clear language to

express termination" was not employed in the

surplus land act at issue in that case. Id.,

420 U.S. at 463, 466. The same argument was

also pressed by the dissenters in Rosebud.

Id., 430 U.S. at 618-20. Second, in Puyallup

Tribe, Inc. -- a case decided shortly after

Rosebud -- the Court made evident’ the

importance it attached to the principles set

forth in DeCoteau and Rosebud when it stated:

The continued existence of the

Puyallup Reservation has been a

matter of dispute on which we

express no opinion. The Ninth

Circuit, relying on our decision in

Mattz v. Arnett, 412 U.S. 481, held

that the reservation did still

exist, United States v. Washington,

496 F.2d 62% (1974), cert. denied,

419 U.S. 32. That decision

predates » consideration of

DeCoteau v. District County Court,

420 (U.S. 425, and en Sioux

Tribe v. Kneip, 430 U.S. 504 (1977).

» 22 <

Id., 433 U.S. at 173 n.11.5 Apparently then,

the Court itself acknowledged that Rosebud and

DeCoteau are considerably more expansive than

the previous decisions in this context.

In Rosebud and DeCoteau, it was made clear

that the focus of inquiry is on the intent of

Congress, which can be variously expressed;

hence, the face of the act at issue, its

legislative history and surrounding

5. The significance of footnote ll is

reinforced by the following excerpt from

the dissent in that case:

The Court tries to avoid the

force of this analysis by

denigrating the holding of the Court

of als for the wack Circuit.

The art States: [footnote 11 is

quoted in part here]. This, to say

the least, is a casual disregard of

settled principles of res judicata

and collateral estoppel. ... The

Court of Appeals squarely held,

contrary to the contention of the

State of Washington, that the

[Puyallup] reservation continued to

exist. .. It i

Pu u i 433 U.S. at 183

rennan, eo” ssenting) (emphasis

supplied).

@ 23 «

circumstarices must all be examined. Rosebud

Sioux Tribe v. Kneip, 430 U.S. at 586-87;

DeCoteau v. District County Court, 420 U.S.

at 444. At the same time, the Court indicated

that the use of express language is not the

only method by which congressional action can

result in disestablishment. Rosebud Sioux

Tribe v. Kneip at 588 n.4. This expanded

analysis reflects a refinement in the Court's

perception of the National policies of the era

involved. See Rosebud Sioux Tribe v. Kneip

at 590; DeCoteau v. District County Court at

431-33. See also Montana v. United States,

450 U.S. 544, 559 n.9 (1981). As pointed out

in DeCoteau:

In 1887, the General Allotment Act

(or Dawes Act) was enacted in an

attempt to reconcile the

Government’s responsibility for the

Indians’ welfare with the desire of

non-Indians to settle upon

reservation lands. The Act

empowered the President to allot

portions of reservation land to

tribal members and, with tribal

consent, to sell the surplus lands

to white settlers, with the proceeds

of these sales being dedicated to

the Indians’ benefit.

@ 24 <

Against this background, a

series of negotiations took place

in 1889 with the objective of

opening the Lake Traverse

Reservation to settlement... .

Id., 420 U.S. at 432-33 (citation and footnotes

That the Court had refined its

Bagh ete of the General Allotment Act

n DeCoteau and Rosebud is evident from

the dissenting opinion filed in the

latter case. There, it was pointed out

that

[t]he Court's construction of the

Rosebud Acts is also untenable when

the Acts are placed in historical

context. Just as we held in Mattz

that the statute at issue there was

to be interpreted "from the overview

of the earlier General Allotment Act

of 1887, 24 Stat. 388," 412 U.S. at

496, so, too, must the Rosebud Acts

be construed from this perspective.

As we observed in Mattz:

"(The policy of the General

Allotment Act] was to continue the

reservation system. .. ." «es «»

This policy reflected Congress’

attempt "to reconcile the

Government's responsibility for the

Indians’ welfare with the desire of

non-Indians to settle upon

reservation lands." ascoteae v.

. " -_ e ~~~ forces,"

- at at work on Congress

demanded land for settlers, Congress

ned the reservations. But because

these forces were not overly concerned

» 28 «

here is that in neither DeCoteau nor Rosebud

was there mention of the viewpoint espoused

in Mattz that the policy of the General

Allotment Act was "to continue the reservation

system."/ Indeed, the Court has. since

(cont.)

with the niceties of reservation

boundaries, the reservation status of

the opened areas was preserved until

the trust period expired, to insure

federal protection of the Indians

while they were being "civilized"

through contacts with white settlers.

Thus, to interpret the Rosebud Acts

as terminating three-fourths of the

Rosebud Reservation is to set them at

war with Congress' general policy

towards Indians at the time the Acts

were approved.

Id., 430 U.S. at 624-25.

While the Amici acknowledge that this

aspect of Mattz was quoted favorably in

Moe v. Confederated Salish & Kootenai

Tribes of the Flathead Indian

Reservation, 425 U.s. tes 478-79 (1976),

8 significant that it was done in

reference to § 6 of the General Allotment

Act and “ot § 5, the surplus lands

provision of that Act. (Section 6

essentially dealt with the trust period

to be established for allotments and when

the patentee was to be subject to state

law.) The result is that, under § 6,

allotted reservations temporarily

continued in reservation status.

Nevertheless, the ultimate aim of the Act

was the "‘'gradual extinction of Indian

= 9% @

expressly acknowledged that "(t]he policy of

the [1887 Act] was the eventual assimilation

of the Indian population... , and 'the gradual

extinction of Indian reservations and Indian

titles.' ..." Montana v. United States, 450

U.S. 544, 559 n.9 (1981) (citation omitted).

See also United States v. Southern Pacific

Transportation Co., 543 F.2d 676, 695 (9th

Cir. 1976) ("ultimate aim of the general policy

of allotment was the abolition of Indian

reservations. .. .")

To summarize, in DeCoteau and Rosebud,

the Court adopted an approach somewhat

different and more expansive than that which

was used in previous decisions. It would

appear then, that to the extent that the

earlier cases are not in harmony with either

Rosebud or DeCoteau, they should no longer be

(cont.)

reservations.' . . ." Montana v. United

States: 450 U.S. 544, 559 n.9 (

guctin a9 mete v. United States, 164 U. s.

» 39 «

considered useful precedent.® But see Lower

Brule Sioux Tribe vy. State of South Dakota,

slip op. at 17-18; Confederated Salish &

Kootenai Tribes v. Namen, 665 F.2d at 956 n.11;

Ute Indian Tribe v. State of Utah, 521 F. Supp.

at 1135. So too, adherence to a court decision

predating Rosebud and DeCoteau is

inappropriate, where, as in this case, the

Surplus land act at issue is not thoroughly

8. Conversely, the lower courts are not free

to disregard the guidelines established

by Rosebud and DeCoteau as the Eighth

Circuit recently did in Lower Brule Sioux

Tribe v. State of South Dakota F.20

~~ (8th Cir., June 27, 1983). in nike

Case, the court stated, in obvious

disregard of the approach espoused in

both Rosebud at 586 and DeCoteau at 444,

as follows:

Because a clear congressional

intent to disestablish cannot be

found on the face of the [act at

issue], the necessary intent can be

found only if there is operative

statutory language that is

"precisely suited" to the purpose

of disestablishment and this

purpose is confirmed by the Act's

legislative history and surrounding

circumstances. .

Slip op. at 1l, Appeal Nos. 82-1635 & 82-

1636 (emphasis supplied).

- 26 -

analyzed anew. This is not to suggest that

all cases antedating Rosebud and DeCoteau are

incorrect -- they may not be. However, because

those two cases have significantly changed the

approach to be taken in this context, the lower

courts are obligated to engage in a thorough

and detailed reexamination of the subject act,

following the guidelines and principles set

forth in Rosebud and DeCoteau, in order to

determine whether the earlier decision was,

in fact, correct. See also Appawora v. Brough,

431 U.S. 901 (1977) (disestablishment case

remanded for further consideration in light

of Rosebud). This the lower court did not do

as it rigidly adhered to the Erickson decision.

B. ‘*The Prevailing Federal Policy.

When assessing any legislation, the

policies prevailing at the time of enactment

can be an important consideration. As this

Court has previously recognized in the Indian

context, the treaties and statutes affecting

Indians “cannot be interpreted in isolation

= 29 «

but must be read in light of the common notions

of the day and the assumptions of those who

drafted them. . . ." Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191, 206 (1978)

(emphasis supplied). Accord Wilson v. Omaha

Indian Tribe, 442 U.S. 653, 666 (1979).

Moreover, because the “surrounding circum-

stances” are to be examined whenever the

disestablishment effect of a surplus land act

is at issue (see, e.g., Rosebud, 430 U.S. at

587; DeCoteau, 420 U.S. at 444), the historical

context in which that act was passed must

obviously be considered.9

9. Several courts have expressly refused to

attribute any particular significance to

the prevailing policies largely because

of the differing results which have

obtained in this context. See, e.g.,

Confederated Salish & Kootenai Tribes v.

Namen, 665 F.2d at 957-58; Ute Indian

Tribe v. State of Utah, 521 F. Supp. at

-52. While there is certainly no

question that the cases regarding the

disestablishment effect of surplus land

acts have gone both ways, this fact should

not in any way affect the role the

prevailing policies ought to play here.

The Amici do not claim that these policies

- 30 -

The prevailing federal Indian policy in

the late 1880's and early 1900's’ was

essentially twofold: assimilation of the

Indian population and the reduction of

existing Indian reservations. As delineated

in the contemporaneous Reports of the

Secretary of the Interior and the Commissioner

of Indian Affairs, the policy of the federal

government at that time was civilization of

the Indian population, which was to be

accomplished primarily by education,

allotment of § lands in severalty, and

destruction of tribal relations. See, e.g.,

[1885] Report of the Secretary of the Interior

at 25-28; [1886] Report of the Secretary of

the Interior at 4; [1888] Report of the

(cont.)

alone are dispositive of the issue

presented. Instead, the purpose of this

discussion is simply to establish the

historical setting in which these various

acts were passed -- a matter which, as

discussed earlier, should have a bearing

in interpreting the 1908 surplus land act

at issue. See also Montana v. United

States, 450 U.S. at 559 nn.8 and 9.

- 31 -

Secretary of the Interior at XXIX-XXXII;

[1889] Report of the Commissioner of Indian

Affairs at 3-4; [1890] Report of the

Commissioner of Indian Affairs at VI, XXXIX;

[1891] Report of the Commissioner of Indian

Affairs at 3-9, 26; [1892] Report of the

Commissioner of Indian Affairs at 5; [1894]

Report of the Secretary of the Interior at IV.

See generally Montana v. United States, 450

U.S. at 559-60 n.9. At the same time, it was

the unquestioned policy of the federal

government to reduce the existing Indian

reservations in order to make the surplus

lands -- that is, the lands not needed by the

Indians themselves -- available for non-Indian

settlement .10 See, e.g., XVII Cong. Rec. 2271

(remarks of Rep. Perkins), 2306 (remarks of

10. Thus, as stated in H.R. Rep. No. 791,

50th Cong., lst Sess. (1888), "“[t]he

policy of the Government from its

earliest days has been to restore Indian

reservations or portions thereof to the

public domain as the exigencies of

advancing population required it... ."

Id. at 3.

= 32 -

Rep. Weaver), 2310 (remarks of Rep. Cutcheon)

(1886); H.R. Rep. No. 791, 50th Cong., lst

Sess. 3 (1888); XXVI Cong. Rec. 6236 (remarks

of Rep. Coffen), 7689 (excerpts from Report

on North American Indians) (1894). The

contemporaneous Reports of the Secretary of

the Interior and the Commissioner of Indian

Affairs are replete with references to this

policy.+1 See, e.g., [1885] Report of the

Secretary of the Interior at 25-26; [1888]

Report of the Secretary of the Interior at

XXXIV; [1889] Report of the Commissioner of

Indian Affairs at 3-4 and 112; [1890] Report

of the Secretary of the Interior at XXIII-

XXIV; [1890] Report of the Commissioner of

Indian Affairs at VI and XXXVIII-XXXIX; [1891]

Report of the Commissioner of Indian Affairs

at 8 and 44-47; [1892] Report of the Secretary

ll. Itis significant that in a recent Opinion

of the Solicitor, 84 I.D. 1 (1977), it

was recognized that the prevailing

federal policy at this time was, in part,

"to reduce the size of Indian

reservations. .. ." Id., 84 I1.D. at 9.

- 33 -

of the Interior at VII-VIII and XXXIII; [1892]

Report of the Commissioner of Indian Affairs

at 5 and 74. The following excerpt from the

1891 Report of the Commissioner succinctly

sets forth the underlying basis for pursuing

a policy of reducing the existing

reservations:

While perhaps it is possible to

push such work too rapidly, I do not

hesitate to say that the ultimate

destruction of the entire system of

reservations is inevitable. There

is no place for it in our present

condition of life, and it must go.

The millions of acres of Indian land

now lying absolutely unused are

needed as homes for our rapidly

increasing population and must be

so utilized. Whatever right and

title the Indians have in them is

subject to and must yield to the

demands of civilization. They

should be protected in the permanent

possession of all this land

necessary for their ovn support, and

whatever is taken from them should

be paid for at its full market value.

But it cannot be expected under any

circumstances that these

reservations can remain _ intact,

hinderin the progress of

Civilization. ... é Indians

themselves are not slow to

appreciate the force of the logic

of events, and are becoming more and