# Amicus Brief — Solem v. Bartlett

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 463

## Text

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

he

THE PURPOSE UNDERLYING THE
1908 SURPLUS LAND ACT AT
ISSUE WAS UNQUESTIONABLY

ONE OF DISESTABLISHMENT......

A.

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 ......

16

16

17

28

39

46

53

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

58

41

49

41

48

ll
43
29
47

- 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

.
ce
“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

mc

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;

B
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

ae

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 ,

we

- 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

omitted).© What is particularly significant

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

2

= 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
more ready to listen to propositions
for the reduction Ay. the

al

- 34 -

reservations and the extinguishment
of their title to such rtions of
the land as are not required for
their own use.

Id. at 46 (emphasis supplied) .12
Firmly entrenched as national policy by

12. Earlier in the same Report, the
Commissioner advocated that this policy
be carried out with dispatch:

Now that there is coming to be a
pretty well recognized and rational
policy, it should be carried into
execution with as much vigor as is
practicable, to the end that the
results anticipated from it may be
reached as speedily as possible.
If the policy of allotting lands
is conceded to be wise, then it
should be applied at an early day
to all alike wherever the
circumstances will warrant. If we
have settled upon the breaking up
of tribal relations, the
extinguishment of the Indian titles
to surplus lands, and the
restoration of the anneeded Surplus
to the pu c domain, let it one

thoroughly. If reservations have

esigned,
hindrance to the proaiess ° he

Indian as we as an obstruction to

the pathway of civ zation t the
reservations, aS speedily as Tada
dictates, be T3273" destroyed and
entirely Swept aeay

Id. at 8 (emphasis supplied).

= 3§ -

the early 1900's, these policies remained in

effect through much of the first two decades

of the 1900's. See, e.g., [1906] Report of

the Commissioner of Indian

wherein the Commissioner stated:

Id.

(emphasis supplied).

I am convinced that a wise provision
in any general allotment act would
be to allow not less than 5 or more
than 40 acres of irrigable land, or
not more than 640 acres of grazing
land, to each Indian, in the
discretion of the Secretary of the
Interior. This would better meet
existing conditions and enable the
Department to care properly for the
interests of all concerned. Another
result which could hardly help
flowing from it would be the more
rapid opening of reservations and
the consequent dissolution of the
generally condemned reservation
pe for the executive branch of
the Government could act then in one
case after another without the need
of consuming the time of the
Congress upon special legislation.
The development of what has been
known as the frontier West would
thus proceed along the line of least
resistance, for the ultimate
advantage of our whole country.

Affairs at 81-82

As pointed out in

an earlier boundary decision of the Eighth

Circuit, Rosebud Sioux Tribe v. Kneip,

521

= 36 -

F.2d 87 (8th Cir. 1975), aff'd, 430 U.S. 584
(1977), in this regard:
The land was being thrown open for
farming. The settlers were
emigrating in great numbers to the

new land in the West, buying their
farms and planting their crops. The

Indian reservations were being

eroded, not preserved. .. .

Id. at 102 (emphasis supplied). Accord
Hollister v. United States, 145 F. 773, 777
(8th Cir. 1906) ("tribal reservations under
the act of 1887 were fast being
disintegrated. .. .")

Since the prevailing national policy was,
in part, to reduce the existing Indian
reservations, it becomes apparent that the
Surplus land provisions of the 1887 General
Allotment Act (24 Stat. 388)13 -- the seminal

legislation of this era (see Montana v. United

13. Section 1 of the General Allotment Act
guaranteed that individual members of the
Tribe would receive a prescribed amount
of reservation land in the form of
allotments, while Section 5 of that Act
made provision for the eventual disposal
of the unallotted or "surplus" lands of
the then existing reservations.

4 37 -

States, 450 U.S. at 559 n.8; n.14 infra) --
were not, aS apparently suggested in Mattz,
412 U.S. at 496, intended by Congress to
continue the reservation system. On the
contrary, it would appear that the Act was
passed to reconcile the dual policies of
civilization and reduction of existing

reservations.!4 See, e.g., United States v.

14. Thus, ina letter to Congress dated March
10, 1892 reproduced in S. Rep. No. 57,
53d Cong., lst Sess. at 2-5 (1893), the
Commissioner of Indian Affairs stated as
follows:

The policy of the Government,
rendered fixed and definite by the
passage of the severalty law in
1887, had for its object the twofold
purpose of allotting lands in
severalty, with the view of
Stimulating the individuality of
the Indians and promoting their
personal prosperity, and also of
rendering available for white
settlement vast areas of surplus
lands not needed by the Indians.
Indian lands restored to the public
domain and thrown open to white
settlement under the homestead law
become taxable on the completion of
the title. .. .
S. Rep. No. 57, at 3. To this end, it
was thought by advocates of the prevaiing
policy that the enactment of surplus land
statutes would be beneficial to both the

= 36 -

Southern Pacific Transportation Co., 543 F.2d

676, 694-95 (9th Cir. 1976); Hollister v.

United States, 145 F. at 776-77. See also

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

at 432.

(cont.) =
individual allottees of the reservations
affected and the United States: first,
the land would be settled by non-Indians
who would expose the allottees to the
ways of civilization, thereby
facilitating the policy of assimilation;
second, it was thought that the sale of
surplus land would serve as a means of
Support for the allottees until they were
fully capable of assuming the
responsibilities of citizenship; and
third, vast tracts of land could, at the
same time, be made available for
settlement to meet the demands of the
Nation's westward expansion. See, e.g.,
H.R. Rep. No. 791, 50th Cong., ist Sess.
at 3 (1888); [1890) Report of the
Commissioner of Indian Affairs at XXXVII-
XL; [1891] Report of the Secretary of the
Interior at VI; [1892] Report of the
Secretary of the Interior at VII and
XXXIII. And, as intended, with the
passage of the General Allotment Act, the
opening of reservation lands occurred at
a much more rapid pace than previously.
See, e.g., [1891] Report of the Secretary
of the Interior at VI; [1892] Report of
the Secretary of the Interior at VII and
XXXIII.

= 39 -

In summary, the enactment of surplus land
legislation in the late 1800's and early 1900's
was part and parcel of the prevailing federal
policy of reducing existing Indian
reservations. It follows then, that the
commonly held assumption at this time must
have been that with the opening of these areas
to entry and settlement, the reservation
Status of the lands involved was to end. See,

e.g., Hollister v. United States, 145 F. at

777. And, as Oliphant, 435 U.S. at 206,
establishes, these are the policies and
assumptions which should inform the Court's
decision here.

Cc. The Significance of Public Domain
Language

Because the 1908 Act at issue employs

public domain language (§ 9, 35 Stat., at

- 40 -

464) ,45 its significance bears amplification
here. This is of particular concern to the
Utah Counties as there is a dispute in their
boundary case over whether such language has
any significance in this context at all. See,
e.g., Reply Brief of the Ute Tribe at 8-21,
26-27, Ute Indian Tribe v. State of Utah, et

al., Appeal Nos. 81-1827 and 81-1901 (10th
Cir.). A review of the applicable authorities
shows that the use of such language,
particularly by Congress, is an important --
if not controlling -- factor in the
disestablishment analysis.

The courts have, in cases involving

reservation boundary disputes, consistently

15. Section 9 provided that that Indians
residing in certain townships in the
opened portion of the’ reservation
retained a right to take timber in those
townships for domestic purposes "only as
long as the lands remain part of the
public domain." 35 Stat., at 464. By
so providing, it is evident that Congress
understood and intended that the opened
—— were to be restored to the public

a n.

cf

« @i -«

recognized that restoration to the public
domain language is synonymous with

disestablishment. See, e.g., Rosebud Sioux

Tribe v. Kneip, 430 U.S. at 589 & n.5; DeCoteau

v. District County Court, 420 U.S. at 446;

Mattz v. Arnett, 412 U.S. at 504 n.22; Seymour

v. Superintendent, 3668 U.S. at 354-55; Russ

v. Wilkins, 624 F.2d 914, 915 (9th Cir. 1980),

cert. denied, 451 U.S. 908 (1981); United

States v. Southern Pacific Transportation Co.,

543 F.2d at 696; United States ex rel. Cook

v. Parkinson, 525 F.2d 120, 124 (8th Cir.

1975), cert. denied, 430 U.S. 982 (1977);

United States ex rel. Feather v. Erickson, 489

F.2d at 100; United States ex rel. Condon v.

Erickson, 478 F.24€ at 688; Beardslee v. United

States, 387 F.2d 280, 285 (8th Cir. 1967)
(Blackmun, J.); Ellis v. Page, 351 F.2d 250,
251-52 (10th Cir. 1965); Leech Lake Band of

Chippewa Indians v. Herbst, 334 F. Supp. 1001,

1005 (D. Minn. 1971). See also United States
v. Pelican, 232 U.S. 442, 445-46 (1914). The

a §2 @

Court's most recent pronouncement in this

context, Rosebud Sioux Tribe v. Kneip, is a

telling example that there can be no real
argument over the significance of public
domain language. Thus, while there was
substantial disagreement over the outcome in
that case, there was obvious agreement that
restoration to the public domain language is,
by itself, express language of

disestablishment. Compare Rosebud Sioux Tribe

v. Kneip, 430 U.S. at 589 & n.5 with id. at
618 (Marshall, J., dissenting). Moreover, the
congressional and administrative materials
from the era in question show that Congress
and the Department of the Interior shared this
understanding as to the significance of public

domain language. See, e.g., H.R. Rep. No.

791, 50th Cong., lst Sess. 3 (1888); H.R. Rep.
No. 2967, 5lst Cong., lst Sess. (1890) at l-
2 (1890 Letter of the Secretary of the
Interior), 2-3 (1890 Letter’ of the
Commissioner of Indian Affairs); H.R. Rep. No.

= 43 -

3305, 5lst Cong., 2d Sess. 1-2 (1890); [1890]
Report of the Secretary of the Interior at
XXIV; [1890] Report of the Commissioner of
Indian Affairs at XXXVIII-XXXIX; [1891] Report
of the Commissioner of Indian Affairs at 44;
[1892] Report of the Secretary of the Interior
at VII-VIII.

As the case law pertaining to the public
lands and the public domain reveals, the
rationale for this shared understanding is
simple. It has long been settled law in this
country that when a tract is lawfully
appropriated or reserved for any purpose by
the federal government, that tract loses its
character as public lands, i.e., it is no

longer a part of the public domain. See, e.g.,

Wilcox v. Jackson, 13 Pet. 498, 513 (1839);

Leavenworth, Lawrence, and Galveston Railroad

Co. v. United States, 92 U.S. 733, 745 (1875);

Beecher v. Wetherby, 95 U.S. 517, 524 (1877);

Missouri, Kansas, and Texas Railroad Co. v.

Roberts, 152 U.S. 114, 118-19 (1894); Spalding

@- 44 -

v. Chandler, 160 U.S. 394, 404-05 (1896); Scott
v. Carew, 196 U.S. 100, 109-11 (1905). And,
as has been repeatedly recognized, this rule
is of particular force in regard to Indian

reservations. See, e.g., Leavenworth,

Lawrence, and Galveston Railroad Co., at 745;

Missouri, Kansas and Texas Railroad Co. v.

Roberts, at 119; Spalding v. Chandler, at 404-

05. Hence the significance of restoration to
public domain language to the disestablishment
analysis is readily explainable: Because the
reservation of a tract removes it from the
public domain, the subsequent restoration
thereof to the public domain (or its
equivalent) signifies the termination of the
reserved status of that land. It is evident
then, that reservation status and public
domain status are plainly incompatible and,
therefore, restoration to public domain
language and the like are of obvious

significance in this context.

- 45 -

The preceding discussion establishes
that it has always been the shared assumption
of the courts, Congress, and the Department
of the Interior that lands are not considered
a part of the public domain if they are located
within the boundaries of an existing Indian
reservation. It follows then that when
Congress used restoration to public domain
language in opening reservation areas for
entry and settlement, as it did in the 1908
Act, the intent was to terminate the reserved
status of the area affected. Similarly, when
either the courts or officials of the
Department of the Interior treated such
reservation areas as having been restored to
the public domain, it was understood that the

area affected had been disestablished.1l6

16. It should be mentioned that there is some
authority for the proposition that
limitations upon the manner of entry,
such as that contained in the 1908 Act
(§ 2, 35 Stat., at 461-62), can negate
restoration to public domain language.
See Ute Indian Tribe v. State of Utah,

° @-

D. Subsequent Administrative and
Legislative Treatment: Past~-Tense
and Related References

The significance to be attributed the

subsequent jurisdictional history of the lands

(cont.)

521 -F. Supp. at 1122-23. As the
previously cited authorities suggest,
however, the imposition of such
limitations is not, without more,
indicative of a congressional intent to
abandon the purpose of disestablishment
underlying the use of public domain
language. In this regard, it is
particularly noteworthy that at least
three separate surplus land acts which
contain restoration to public domain
language, or its equivalent, have
contained similar limitations. See Act
of July 4, 1884, 23 Stat. 76, 80 (Columbia
Reservation Act); Act of March 3, 1873,
§ 1, 17 Stat. 633 (Round Valley Act); Act
of March 2, 1889, § 21, 25 Stat. 888, 896
(Great Sioux Nation Act). Nevertheless,
the historic reservation areas affected
by these acts have been consistently
treaced as having been thereby
disestablished. See, e.g., Rosebud Sioux
Tribe v. Kneip, 430 U.S. at 589 and n.5
(1889 Act terminated reservation status
of the restored area); Starr v. Long Jim,
227 U.S. 613, 619 (1913) (CoLambia
Reservation); Russ v. Wilkins, 624 F.2d
at 915 (1873 Round Valley Act made a major
change in the reservation). Thus, it is
reasonable to conclude that the mere
presence of limitations on the manner of
entry has little, if any, bearing in this
context.

e 67 -

at issue is a matter which was discussed at
length by the Court in Rosebud, 430 U.S. at
603-05 and DeCoteau, 420 U.S. at 442, and needs
no further amplification here. Subsequent
administrative and legislative treatment
otherwise has had a more checkered history in
the disestablishment context. Several
observations in regard to the record of that
subsequent treatment present in the instant
case are, therefore, appropriate.

It is, of course, well recognized that
both a contemporaneous interpretation and a
consistent, long-standing interpretation of a
particular statute by the governmental agency
and its officials responsible for admin-
istering that statute is entitled to great

deference by the courts. See, e.g., United

States v. National Association of Securities

Dealers, Inc., 422 U.S. 694, 718-19 (1975)

(consistent, long-standing administrative

interpretation); Zuber v. Allen, 396 U.S. 168,

192 (1969) (contemporaneous administrative

- 48 -

construction); Russ v. Wilkins, 624 F.2d at
922-23. Disagreement as to the application
of these principles in boundary litigation has
most often arisen in regard to the significance
to be attributed past-tense and _ like

references. See, e.g., Confederated Salish &

Kootenai Tribes v. Namen, 665 F.2d at 959-60;

City of New Town v. United States, 454 F.2d

at 125-26; Ute Indian Tribe v. State of Utah,

521 F. Supp. at 1132-35, 1141-42 & nn. 189 &
191. In this regard, there is no question
that as a general proposition these past-tense
and related references are not without
consequence, but can accurately reflect the
current status of the area involved and hence,

the intent of Congress.!7 See, e.g., Rosebud

17. A number of historical administrative
documents refer to the opened lands as
"ceded". See App. B, Appendix to the
Brief of the Amici Counties, Bartlett v.
Solem, No. 82-1582 (8th Cir.) (a copy of
which has been lodged with the Court).
In Ute Indian Tribe v. State of Utah, the
court held that “ceded” references

- 49 -

Sioux Tribe v. Kneip, 430 U.S. at 603 n.25,

609 n.38; Russ v. Wilkins, 624 F.2d at 925;

United States v. Southern Pacific Trans-

portation Co., 543 F.2d, at 696; Rosebud Sioux

Tribe v. Kneip, 521 F.2d at 102 & n.54, 107
n.88, 110 & n.114, 113 n.134. It follows then,

that the determination of the weight to

(cont .)

contained in the record in that case were
without significance because, as in the
instant case, there had not been an actual
cession. Id., 521 F. Supp. at 1118. On
the contrary, the Amici submit that these
references are a valid indicator of
perceived disestablishment in this
context. It is settled law that words
of cession are "precisely suited" to
disestablishment, even where the term is
"technically misused." DeCoteau v.
District County Court, 420 U.S. at 445;
Rosebud Sioux Tribe v. Kneip, 430 U.S.
at 597, 613. Thus, although the portion
of the reservation opened under the 1908
Act was not technically ceded, the use
of that term is nevertheless evidence of
an understanding that the opened lands
had been disestablished. See, e.g.,
Rosebud Sioux Tribe v. Kneip at 59/-98.
It follows then, that although these
references are technically incorrect,
the courts are not free to ignore the
significance underlying their usage. See
also United States ex rel. Cook v.
Parkinson, 525 F.2d at 123; Rosebud Sioux
Tribe v. Kneip, 521 F.2d at 112.

= 80 -

be accorded such subsequent treatment should
be made on the basis of the actual record of
that treatment and not on any vague notions
as to the value or reliability of such
references generally. And where, as in this
case, the past-tense and like references show
that the prevailing perception for many years
was that the area in question had been
disestablished, those references are entitled

to considerable deference. Cf. Rosebud Sioux

Tribe v. Kneip, 430 U.S. at 604-05 n.27 (no
"consistent" or "“dominant"™ approach in

administrative materials); DeCoteau Vv.

District County Court, 420 U.S. at 442 n.27

("No consistent pattern emerges" in
administrative documentation.).

Two separate but related arguments are
usually made to negate the significance of the
past-tense references. Specifically, it is
often claimed: that these references are
inadvertent or mistaken; and that they are

confused because the same or contemporaneous

e 81 -

documentation also contains "present-tense”
references to the historic reservation area

involved. Compare DeCoteau v. District County

Court, 420 U.S. at 442 n.27. In view of the
extensive and repeated past-tense and like
references contained in the historical record,
however, neither of these claims can be
considered persuasive. First of all, because
there are numerous past-tense and like
references, it can hardly be said that the
references are either inadvertent or mistaken.
On the contrary, their repeated use makes it
quite apparent that such references. had
Significance for their authors. Nor can it
be said that these references are without
import because some of the documents also
contained so-called "“present-tense" refer-
ences. That is, by no means are these "present-
tense" references indicative of confusion on
the part of the authors. On the contrary,

when read together -- as the various

= §2 -

references should be,+8 it becomes apparent
that because the past-tense references were
consistently and repeatedly used over a long
period of time, often by the same author (see
App. B, Appendix to Court of Appeals Brief of
the Amici Counties cited at n.17, supra), the
"present-tense” references were most likely
just convenient, shorthand methods of
designating the area being discussed and no
more. In these circumstances then, it can be
safely concluded that the so-called "“present-
tense" references were, in the words of this
Court, “used in a geographical and not a legal

sense. .. ." United States v. Oklahoma Gas

& Electric Co., 318 U.S. 206, 216 (1943). In

our view, this interpretation is considerably
more satisfactory, at least where, as in this

case, there are numerous past-tense and like

18. And, doing so makes good sense since these
references are often used in the same
document or by the same author in a series
of documents. See, e.g., App. B, Appendix
to Court of Appeals Brief of the Amici
Counties cited at n.17, supra.

- 53 -

references than to conclude that_ the
responsible officials -- wiich includes the
Secretary of the Interior and the Commissioner
of Indian Affairs -- were in utter confusion
and continually vacillated between
perceptions of the status of the area.

E. Restoration of the Undisposed of

Surplus Lands Under the 1934 Indian
Reorganization Act

In a series of published orders, the
Secretary of the Interior restored the
undisposed of lands opened to entry under the
1908 Act to tribal ownership under the
authority of § 3 of the Indian Reorganization
Act (48 Stat. 984, 25 U.S.C. § 463). See l
Fed. Reg. 1738 (Standing Rock); 6 Fed. Reg.
3300, amended 14 Fed. Reg. 471 (Cheyenne
River); 17 Fed. Reg. 1065 (same); 22 Fed. Reg.
3693 (same); & 32 Fed. Reg. 14276 (same). From
1935 through the early 1970's, orders of this
sort were issued. For example, there were
orders of restoration involving the undisposed

of surplus lands of the original Rosebud Indian

» 84 -

Reservation (3 Fed. Reg. 399), the historic
Uintah Reservation (10 Fed. Reg. 12409), the
Original Fort Berthold Reservation (3 Fed.
Reg. 1860, 13 Fed. Reg. 2416, & 26 Fed. Reg.
323); and the historic Flathead Reservation
(e.g., 1 Fed. Reg. 666, 3 Fed. Reg. 5, 21 Fed.
Reg. 6681, 23 Fed. Reg. 3854, 26 Fed. Reg.
4015, & 29 Fed. Reg. 16827). The Amici submit
that the Cheyenne River and Standing Rock
restoration orders are solid evidence of a
long-standing understanding of perceived
disestablishment, and accordingly, entitled
to particular deference as such.

Section 3 of the Indian Reorganization
Act authorizes the Secretary of the Interior,
in certain circumstances, to restore to tribal
ownership the undisposed of surplus lands of
any Indian reservation previously opened to
entry and settlement. In implementing this
provision, the Department of the Interior has
officially determined that it “applies both

to lands which are part of an existing

@ §§ -

reservation and to lands which were part of a
reservation at the time the land was opened
for sale. .. ." Russ v. Wilkins, 624 F.2d
at 924 n.25. Thus, as this Court acknowledged
in Rosebud, the fact that undisposed of lands
in the area at issue were restored to tribal
ownership under § 3 of that Act is not
indicative, one way or another, of the
Department's view as to the reservation status
of that area. Id., 430 U.S. at 604 n.27.
Nevertheless, these orders are, for a
different reason, of consequence in boundary
disputes.

In each of the orders of restoration
involving lands opened pursuant to the 1908
Act at issue here, it was expressly provided
that pursuant to the authority of § 7 of the
1934 Act (25 U.S.C. § 467), the restored lands

were also to be “added to and made a part of

—

@ 86 -

the existing reservation. ..."19 See 1 Fed.

Reg. 1738-39; 6 Fed. Reg. 3300, as amended 14

Fed. Reg. 471; 17 Fed. Reg. 1065; 22 Fed. Reg.
3693; & 32 Fed. Reg. 14276. Section 7
authorizes the Secretary of the Interior, in
his discretion, to "“add" lands acquired
pursuant to any provisions of the Act "to
existing reservations," or where no
reservation exists, to be proclaimed a “new”
reservation. 48 Stat., at 985. If, in fact,
the restored lands were already considered to
be in reservation status, there would have
been no need to expressly restore those lands
to reservation status under the authority of
§ 7. And, in view of the fact that § 7 has

often been used by the Secretary of the

19. Section 7 proclamations are also
contained in the Rosebud, Ute, Flathead,
and Fort Berthold Restoration Orders
cited above.

= 57 «-

Interior independently of § 3 restorations 29

(see, @€.9., 9 Fed. Reg. 14019; 46 Fed. Reg.

1040, 26562-563, 46407, 46681, & 47116-117;
47 Fed. Reg. 15162, 23812, 23813, 26243, &
31753), and the fact that the various § 7
orders carefully specify whether the
declaration involves the addition to an
existing reservation or creation of a new

reservation (compare, e.g., 6 Fed. Reg. 3300,

10 Fed. Reg. 12409, and 46 Fed. Reg. 46407

with, e.g., 9 Fed. Reg. 14907-909, 46 Fed.

Reg. 46681, and 47 Fed. Reg. 26243), it is
likely that the Secretary did not lightly or
needlessly employ § 7 in the restoration orders
involved in this case. Thus, as the Rosebud
restoration order (3 Fed. Reg. 399) attests,
these orders faithfully and accurately reflect

the perceived status of the area involved. It

20. Conversely, from time to time, § 3 has
been used alone. See, e.g., 3 Fed. Reg.
567-68; 3 Fed. Reg. 2223; 28 Fed. Reg.
3655-56; 35 Fed. Reg. 10601; 35 Fed. Reg.
12962; & 36 Fed. Reg. 17450.

=» 86 «

is therefore evident that since these
§ 7declarations were not mere surplusage, the
orders of restoration are strong evidence of

perceived disestablishment here. See also

United States v. Southern Pacific Trans-

portation Co., 543 F.2d at 696 (congressional

restoration of lands in question originally
proposed by the Secretary of the Interior given
weight).

PF. Continued Federal Presence in the
Area

Since the opening of the area at issue
in 1910, the federal government has continued
to have significant responsibilities in that
area. This is largely the product of the trust
status of allotments, tribal lands, and -- in
earlier years -- unsold surplus lands (see

generally Ash Sheep Co. v. United States, 252

U.S. 159, 164-66 (1920); United States v.

Pelican, 232 U.S. at 447-50), and of the long-
established guardian/ward relationship
between the federal government and Indians.

As a result, continued federal presence in

= §9 -

most opened areas has not only been assured,
but has come to be expected. At the same time,
though, this continued presence should not,
by itself, have any bearing on the question
of disestablishment of the non-Indian owned

areas at issue here. See Rosebud Sioux Tribe

v. Kneip, 430 U.S. at 615-16 n.48; DeCoteau

v. District County Court, 420 U.S. at 442-43.

As Rosebud and DeCoteau attest, there will
often be continued federal presence in former

reservation areas.

- 60 -

CONCLUSION

WHEREFORE, it is respectfully requested
that the judgment of the Eighth Circuit be

reversed,

Dated this 4th day of August, 1983.

Respectfully submitted,

Robert Holte Dennis L. Draney
Mountrail Counsel of Record
County Attorney Duchesne County Attorney
57 N. 100 East

John Frederick Suite 1, Box 1886
Lake County Roosevelt, Utah 84066
Attorney (801) 722-5066

Kenneth Rottier
Attorney for the
Town of Oneida Mark Nash
Uintah County Attorney
Jeffery J. Gilson
Attorney for the
Town of Hobart
Michael J. Kraker
Mahnomen County Attorney

Merle Torkelson Tom Slorby
McLean County Ward County Attorney
Attorney

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0355%3A12. Public record. Not legal advice.