Petition — Adams v. Providence & Worcester Co.

83-1156 aes Fae

No. TAN 10 54

ALEAA L. SPEVAS. |

a...

In The

Supreme Court of the United States

October Term 1983

Ly

Ww

JOHN R. WILSON, et al.,

Cross-Petitioner,

vs.

UNITED STATES OF AMERICA and

THE OMAHA INDIAN TRIBE

CROSS-PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ROBERT J. BECKER and THOMAS R. BURKE and

DONALD J. BURESH LYMAN L. LARSEN

3535 Harney Street 10306 Regency Parkway Dr.

Omaha, NE 68131 Omaha, NE 68114

Counsel for John R. Wilson, Charles E. Lakin,

Florence Lakin and Harold Jackson

PETER J. PETERS :

233 Pearl Street :

Council Bluffs, lA 51502

Counsel for RGP, Inc. and Otis Peterson

LF

COCKLE PRINTING CO, 2511 Douglas Sx. Omahe 68102

QUESTION PRESENTED

Whether Title 25, U.S. Code $194, which places the

burden of proof on the “white person” in a suit by “an

Indian” over title to property, is unconstitutional because

it is invidious racial discrimination in favor of Indians

and Indian Tribes, and against other persons in violation

of the due process clause of the Fifth Amendment.

i$

PARTIES TO THE PROCEEDINGS

The parties to the proceedings in the courts below

are: The United States of America and the Omaha Indian

Tribe, who were the plaintiffs, and John R. Wilson (the

personal representative of Roy Tibbals Wilson, now de-

ceased), Charles E. Lakin, Florence Lakin, Harold Jack-

son, RGP, Inc., and Otis Peterson, who were defendants

and who are the cross-petitioners herein. Other defend-

ants in the proceedings below are Darrell L. Sorenson,

Harold Sorenson, Harold M. Sorenson, Luea Sorenson,

Travelers Insurance Company, The State of Iowa, and the

State Conservation Commission of the State of Iowa.

ili

TABLE OF CONTENTS

Pages

Question Presented i

Parties to the Proceedings ii

Opinions Below ..... 2

Jurisdiction . enibciesiesitaicas 2

Constitutional and Statutory Provisions Involved 3

Statement of the Case 3

Reasons for Granting the Cross-Petition 6

Conclusion 15

TABLE OF AUTHORITIES

Cases :

Delaware Tribal Business Comm. v. Weeks, 430

U.S. 73 (1977) 13, 14

Fisher v. District Court, 424 U.S. 382 (1976) 00s

Fullilove v. Klutznick, 448 U.S. 448 (1980) 9,10

Morton v. Mancari, 417 U.S. 535 (1974) —.7, 11, 12, 13, 14

Narragansett Tribe of Indians v. Southern Rhode

Island Land Development Co., 418 F.Supp. 798

(D. Rhode Island 1976) 8

Omaha Indian Tribe v. Wilson, 575 F.2d 620 (8th

Cir. 1978) 2, 4, 6,7, 11

Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th

Cir.), cert. denied, 449 U.S. 825 (1980) 2, 5 9

Oneida Indian Nation of New York vy. County of

Oneida, 434 F.Supp. 527 (N.D. N.Y. 1977) —.

Schaghticoke v. Kent School Corp., 423 F.Supp.

780 (D. Conn. 1976)

8

iv

TABLE OF AUTHORITIES—Continued

Pages

United States v. Antelope, 430 U.S. 641 (1977) 12,13

United States v. 7,504.3 Acres of Land, 97 F.2d

417 (4th Cir. 1938) 8

United States v. Wilson, 433 F.Supp. 57 and 433

F.Supp. 67 (N.D. Iowa 1977) ...... Beads, oe

United States v. Wilson, 523 F.Supp. 874 (wD. ‘

a a a ielenesibuentiecs 2;5,7

United States v. Wilson, 707 F.2d 304, as modified

on rehearing, 707 F.2d 311 (8th Cir. 1983) 00. «2,6

University of California Regents v. Bakke, 438

U... 265 (1978) 9, 10, 11

Wilson v. Omaha Indian Tribe, 442 U.S. 653

(1979) 2,5, 8, 10, 14, 15

STATUTES:

25 USC §194 8, 4, 5, 6, 9, 10, 11, 13, 14, 15

25 USC 4476 aan

25 USC $§1291-1297 —... ' 13

28 USC $1254(1) 2

Po RD I tenement Fee 3

28 USC 41345 Feme eye)

28 USC $1362 3

Orner AUTHORITIES:

Rule 19.5, Rules of the Supreme Court of the

United States 2

United States Constitution, Amendment V =

~~

In The

Supreme Court of the United States

October Term 1983

————

A

JOHN R. WILSON, et al.,

Cross-Petitioner,

vs.

UNITED STATES OF AMERICA and

THE OMAHA INDIAN TRIBE

s.

Vv

CROSS-PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

—

ae

John R. Wilson, Charles E. Lakin, Florence Lakin,

Harold Jackson, RGP, Inc. and Otis Peterson, who are

respondents as to the Petition of the United States in

No. 83-952, cross-petition for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Eighth Circuit in this case.

.

a

1

2

OPINIONS BELOW

The opinion and judgment of the court of appeals is

reproduced as Appendix A, B, C and D to the Petition of

the United States in No. 83-952. The opinion is reported

as United States v. Wilson, 707 F.2d 304, as modified on

rehearing, 707 F.2d 311 (8th Cir. 1983). The most recent

memorandum and order of the district court is reported as

United States v. Wilson, 523 F.Supp. 874 (N.D. Iowa 1981).

Other opinions in this case, in chronological order, are:

United States v. Wilson, 433 F.Supp. 57 and 433 F.Supp.

67 (N.D. Iowa 1977), vacated and remanded sub nom.

Omaha Indian Tribe v. Wilson, 575 F.2d 620 (8th Cir.

1978), vacated and remanded, Wilson v. Omaha Indian

Tribe, 442 U.S. 653 (1979); remanded to district court,

Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.),

cert. denied, 449 U.S. 825 (1980).

ty.

JURISDICTION

On December 8, 1983 the United States filed a timely

Petition For a Writ of Certiorari in No. 83-952 asking for

review of the judgment of the court of appeals entered

on June 10, 1983. The United States invoked the juris-

diction of this Court under 28 USC $1254(1). The cross-

petitioners received the Petition on December 12, 1983.

This Cross-Petition is filed pursuant to Rule 19.5 of the

Rules of The Supreme Court of the United States.

°

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Code, Title 25 $194. Trial of right of

property; burden of proof.

In all trials about the right of property in which an

Indian may be a party on one side, and a white person

on the other, the burden of proof shall rest upon the

white person, whenever the Indian shall make out a

presumption of title in himself from the fact of pre-

vious possession or ownership. R.S. $2126.

Derivation. Act of June 30, 1834, C.161, §22, 4 Stat. 733.

United States Constitution, Amendment V, Due Proc-

ess Clause.

No person shall . . . be deprived of life, liberty or

property, without due process of law;

STATEMENT OF THE CASE

This case is a consolidation of suits brought by the

Omaha Indian Tribe and the United States as trustee for

that Tribe, to quiet title to certain Iowa farm land as

being part of the Omaha Indian Reservation, which was

established on the Nebraska side of the Missouri River

pursuant to a treaty of 1854.

The complaint of the Tribe invoked the jurisdiction

of the district court under 28 USC $§1331 and 1362. The

complaint of the United States invoked the jurisdiction of

the district court under 28 USC $1345.

The critical factual issue in the case was whether the

Missouri River moved over an area, referred to as the

4

Barrett Survey, in an avulsive or accretive manner at

various times since 1854. If the movements were avulsive

in nature the original reservation boundaries would remain

unchanged and the United States and the Tribe would pre-

vail. If the movements were accretive, the land in ques-

tion would be Iowa riparian land; it would not be a part

of the reservation; and the defendants would prevail. The

district court, applying normal burden of proof require-

ments, placed the burden of proof on the United States

and the Tribe; found the movements to be accretive; and

held for the defendants, cross-petitioners herein.! The

Eighth Circuit Court of Appeals held that 25 USC $194

applied to place the burden of proof on the defendants

and reversed.”

This case was previously before this Court pursuant

to its grant, on November 13, 1978, of the Petition for Cer-

tiorari of cross-petitioners Wilson, et al., (No. 78-160)

limited to two questions presented by that petition which

were:

Whether the Eighth Circuit erroneously construed

Title 256 USC §194 to make it applicable in this case.

Whether the Eighth Circuit erred in holding that Fed-

eral and not state common law with regard to accre-

tion and avulsion is applicable in this case.

The Court did not grant certiorari on the question of the

constitutionality of 25 USC §194 presented in the petition

of defendants RGP, Inc. and Otis Peterson in No. 78-162.

1. United States v. Wilson, 433 F.Supp. 57 and 433 F.Supp. 67

(N.D. lowa 1977).

2. Omaha Indian Tribe v. Wilson, 575 F.2d 620 (8th Cir. 1978).

5

In its opinion in Wilson v. Omaha Indian Tribe, 442

U.S. 653 (1979), this Court construed 25 USC 4§194 to be

applicable to place the burden of proof upon the defend-

ants in this case, except for the State of Iowa to which

the Court held section 194 would not apply; found federal

law of accretion and avulsion was controlling, but that the

law of Nebraska should be borrowed as the federal rule

of decision in this case; and remanded this case to the

court of appeals to consider whether the district court had

correctly interpreted Nebraska law and had properly ap-

plied it to the facts in this case.

The court of appeals on remand again vacated the

judgment of the district court, which had quieted title in

defendants, and remanded the case to that court with di-

rections to enter judgment quieting title to the trust lands

involved, except those claimed by the State of Jowa, in

the United States, as trustee for the Omaha Tribe.’

On remand the district court, on September 8, 1981,

entered a Memorandum Opinion and Order quieting title

in the United States and the Tribe and ruling adversely

to cross-petitioners on issues raised by them concerning

the title status of certain lands within the Barrett Survey

which had been patented in fee and the entitlement of

cross-petitioners to reimbursement for improvements

made to the land.‘

On appeal to the Eighth Circuit the cross-petitioners,

in addition io appealing from the adverse rulings on the

3. Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir. 1980)

cert. denied 449 U.S. 825 (1980).

4. United States v. Wilson, 523 F.Supp. 874 (N.D. lowa 1981).

6

fee patent land and improvement issues, raised the issue

of the constitutionality of 25 USC $194, the application

of which was a determinative factor in the adverse ruling

on the issue of ownership of the entire land in contro-

versy. The court of appeals reversed on the issues of fee

patent land and improvements and remanded the case

once again to the district court for further proceedings

but made no ruling on the issue of the constitutionality of

25 USC 4§194.5

The United States in No. 83-952 has petitioned for a

writ of certiorari with respect to the ruling of the court

of appeals on the improvements issue. The cross-peti-

tioners in this cross-petition seek a writ of certiorari to

the Eighth Circuit on the question of the constitutionality

of 25 USC §194.

REASONS FOR GRANTING THE CROSS-PETITION

The decisive impact of 25 USC $194 on this litigation

has been noted by both the district court and the court of

appeals. .Although section 194, which allocates the bur-

5. United States v. Wilson, 707 F.2d 304, as modified on re-

hearing, 707 F.2d 311 (8th Cir. 1983).

6. The court of appeals stated: “We recognize that to re-

quire the defendants to prove the cause of the river's move-

ments occurring some 100 years after the event is indeed an

onerous burden. Omaha Indian Tribe v. Wilson, 575 F.2d 620,

651. The district court observed:

There can be no doubt, however, that 25 USC §194

has been a determinative factor in the outcome of this

(Continued on following page)

7

den of proof based upon race, would seem almost to com-

pel a thorough constitutional review, the constitutionality

of that statute has received only slight attention in this

ease. In a footnote to the first opinion of the court of ap-

peals, the constitutional question was dismissed with a

brief reference to this Court’s decision in Morton v. Man-

cari, 417 U.S. 535 (1974).’?. The court of appeals, though

asked to consider this issue in the most recent appeal,

failed even to mention it.

The potentially enormous impact of section 194 in

future cases involving Indian land claims should be appar-

(Continued from previous page)

case. In the Appellate stages of this eee this pre-

viously untested statute operated to shift the ordinary bur-

den of proof in a quiet title action to the individual de-

fendants. This enormous burden included the task of de-

scribing the nature of river movements which occurred be-

ginning over 100 years ago.

United States v. Wilson, 523 F.Supp. 874, fn. 19.

7. In footnote 18 to its opinion in Omaha Indian Tribe v. Wil-

son, 575 F.2d 620, 631 (1980) the court of appeals said:

The defendants question the constitutionality of 25

USC §194. In discussing the validity of laws granting spe-

cial treatment to Indians the Supreme Court emphasized

in Morton v. Mancari, 417 U.S. 535, 554-55, 94 S.Ct. 2474,

2485, 41 L.Ed.2d 290 (1974), that:

On numerous occasions this Court specifically has up-

held legislation that singles out Indians. for particular and

special treatment. This unique legal status is of long

standing and its sources are diverse. As long as the spe-

cial treatment can be tied rationally to the fulfillment of

Congress’ unique obligation toward the Indians, such leg-

islative judgments will not be disturbed.

(citations omitted).

The defendants, it should be noted, did not raise the constitu-

tional issue on the first appeal since they were appellees, hav-

ing obtained a judgment from the district court dismissing the

plaintiffs’ quiet title actions.

8

ent. The reversal of the burden of proof in such cases will

be triggered under the statute whenever the Indian or In-

dian tribe, or the United States as its “champion”, demon-

strates that it was “once in possession of or had title to the

area in dispute”.* As the circumstances of this case demon-

strate, the remoteness in time of the last Indian possession

is immaterial. Any tribal possession in the instant case

ceased at least by 1912. With respect to much of the land

within the Barrett Survey, it ceased even before that as

the Missouri River moved back and forth across that area

in the latter part of the 19th century.

The reversal of the normal burden of proof require-

ments coupled with the inability of defendants in cases

such as this to rely upon statute of limitations or laches

defenses’, creates almost insurmountable obstacles to the

defense of Indian land claims brought by the tribes or the

United States. When the full resources of the United

States government are brought to bear on behalf of the

Indian claimants, as they have been in this case, the bur-

den is overwhelming.

The instant case demonstrates exactly the conse-

quences of a combination of these forces. The ultimate

conclusion of the court of appeals, it may safely be said,

8. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 668.

9. The federal courts have consistently held that limitations

defenses cannot be asserted 2 oy Indian land claims brought

by tribes or the United States. See, e. g., United States v. 7,504.3

Acres of Land, 97 F.2d 417 (4th Cir. 1938); Oneida Indian Na-

tion of New York v. County of Oneida, 434 F.Supp. 527 (N.D.

N.Y. 1977); Schaghticoke v. Kent School Corp., 423 F.Supp. 780

(D. Conn. 1976); Narragansett Tribe of Indians v. Southern

at 4 Land Development Co., 418 F.Supp. 798 (D. Rhode

9

is that neither side in this litigation has been able to con-

vincingly demonstrate the nature of the river movements

occurring almost a century ago which are critical to this

ease. The evidence on both sides has necessarily involved

the “educated guesses” of expert witnesses which the court

of appeals has found to be speculative and not sufficient

to sustain a burden of proof.'® Nevertheless, because sec-

tion 194 automatically places the burden of proof on the

defendants, the result is that the United States and the

Tribe are now in a position to reclaim land on the Iowa

side of the Missouri River which the Tribe had neither

occupied nor claimed for almost a half century before in-

stituting this litigation.

The constitutional validity of 25 USC $194, it is sub-

mitted, is a question of great significance to all pending

and future litigation involving Indian land claims. The

instant case shows so clearly the impact that section 194

can have on that type of litigation. It presents a very

appropriate context in which to examine the constitution-

ality of the racial preference granted by section 194.

This Court’s decisions in University of California Re-

gents v. Bakke, 438 U.S. 265 (1978) and Fullilove v. Klutz-

nick, 448 U.S. 448 (1980) set forth the standards by which

the constitutionality of racially preferential statutes must

be reviewed. In Bakke the Court reaffirmed the tradi-

tional strict scrutiny standard in striking down the racial

10. The court of appeals in its second opinion, Omaha Indian

Tribe v. Wilson, 614 F.2d 1153, 1160, commented: “Evidence

of river movements in the critical periods too often gives no

more than a basis for an ‘educated guess’, in the words of de-

fendant’s expert witness, Dr. George Hallberg.”

10

quota system at issue there.'' In Fullilove, the Court up-

held the validity of congressional legislation granting a

preference to minority contractors to remedy the effects

of past discrimination. The Court’s opinion in Fullilove,

however, stated that remedial legislation of the type there

involved carried with it the “need for careful judicial

evaluation to assure that any congressional program that

employed the objective of remedying the present effect

of past discrimination is narrowly tailored to the achieve-

ment of that goal”. Id. at 480.

25 USC §194, it is submitted, fails to satisfy the stand-

ards of Bakke and Fullilove. There is no articulated basis

in the legislative history of that statute which reveals a

“substantial interest” or demonstrates that the racial clas-

sification of that statute is necessary to the accomplish-

ment of any such interest. There is nothing to show that

the statute is “narrowly tailored” to remedy “the present

effect of past discrimination.” In fact there is no legis-

lative history at all upon which to rely in ascertaining the

Congressional intent or purpose underlying that statute.

“The legislative history here is uninformative, and execu-

tive interpretation is unhelpful with respect to this dor-

mant statute”. Wilson v. Omaha Indian Tribe, 442 U.S.

653, 667. In the absence of legislative history or any other

11. In Bakke, the court stated:

We have held that in “order to justify the use of a

suspect classification, a State must show that its purpose or

interest is both constitutionally permissible and aa

tial, and that its use of the classification is ‘necessary .

the accomplishment’ of its purpose or the safeguarding of

its interest. , [citations omitted]

438 U.S. at 305.

11

means by which to identify a “substantial interest” or the

“necessity” of the racial classification the statute must

fail. The court in its opinion in Bakke stated:

We have never approved a classification that aids

persons perceived as members of relatively victimized

groups at the expense of other innocent individuals in

the absence of judicial, legislative, or administrative

findings of constitutional or statutory violations. .. .

Without such findings of constitutional or statutory

violations, it cannot be said that the government has

any greater interest in helping one individual than

in refraining from harming another. Thus, the gov-

ernment has no compelling justification for inflicting

such harm.

438 U.S. at 307.

Moreover, the mere fact that the instant case is the

first reported case to apply 25 USC $194 in the almost one

hundred and fifty years since the statute was enacted be-

lies any notion that a “substantial interest” is served by

section 194 or that it is “necessary”.

The court of appeals in its only comment upon the

constitutionality of section 194 referred to this Court’s

decision in Morton v. Mancari, 417 U.S. 535 (1974).”

Morton upheld a statute granting Indians an employment

preference with the Bureau of Indian Affairs. The court

of appeals interpreted Morton as supporting the propo-

sition that Indians may be singled out by Congress “for

particular and special treatment”. Omaha Indian Tribe

v. Wilson, 575 F.2d 620, 631 n. 18.

12. Omaha Indian Tribe v. Wilson, 575 F.2d 670, 631 fn. 18

(8th Cir. 1980).

12

Morton cannot be read so broadly. The Court in

Morton was careful to emphasize that the employment

preference at issue was a “political” preference and not a

racial preference in that the special treatment was ac-

corded to Indians not as a racial group, but as members

of quasi-sovereign tribal entities.’ Subsequent cases up-

holding special Indian legislation in the face of equal pro-

tection challenges also do so on the grounds that the

special treatment is not based upon race but upon the

unique legal status of Indian tribes. The distinction is

stated in United States v. Antelope, 430 U.S. 641, 646

(1977).

Both Mancari and Fisher involved preferences or dis-

abilities directly promoting Indian interests in self-

government, whereas in the present case we are deal-

ing not with matters of tribal self-regulation, but with

federal regulation of criminal conduct within Indian

country implicating Indian interests. But the prin-

ciples reaffirmed in Mancari and Fisher point more

13. Morton v. Mancari, 417 U.S. 535, 553, 554 (1974). The

limits of the type of classification approved in Morton was

stressed again in the court’s opinion in Bakke.

Petitioner also cites our decision in Morton v. Man-

cari, 417 Us 535, 41 L Ed 2d 290, 94 S Ct. 2474 (1974), for

the pray dleac that the State may prefer members of tra-

ditionally disadvanta groups. In Mancari, we approved

a hiring preference for quali Indians in the Bureau of

Indian Affairs of the Department of the Interior (BIA). We

observed in that case, however, that the legal status of the

BIA is sui generis. Iid., at 554, 41 L Ed 2d 290, 94 S Ct

2474. Indeed, we found that the preference was not racial

at all, but “an employment criterion reasonably designed

to further the cause of Indian self-government and to make

the BIA more responsive to . ae. . whose lives and

eg are governed by the a unique fashion.”

438 U.S. 265, 304 fn. 42

13

broadly to the conclusion that federal regulation of

Indian affairs is not based upon impermissible classi-

fications. Rather, such regulation is rooted in the

unique status of Indians as “a separate people” with

their own political institutions. Federal regulation

of Indian tribes, therefore, is governance of once-sov-

ereign political communities; it is not to be viewed as

legislation of a “ ‘racial’ group consisting of ‘Indians’

....” Morton v. Mancari, supra, at 553 n. 24, 94 S.Ct.,

at 2484,

In contrast with the legislation examined and upheld

in Morton, and Antelope, and also in Fisher v. District

Court, 424 U.S. 382 (1976) and Delaware Tribal Busi-

ness Comm. v. Weeks, 430 U.S. 73 (1977)'5, 25 USC §194

draws a bright racial line. It is cast in terms of “an In-

dian”—literally an individual Indian—and a “white per-

son”. The preference is granted to the Indian regardless

of his tribal status. The “property” referred to in the

statute is not limited to tribal or reservation property.

The preference granted to the Indian operates directly to

disadvantage the “white person” or non-Indian where the

interests of the Indian are in direct conflict with those of

the “white person” or non-Indian. In no sense is the

classification of section 194 “political” in nature so as to

justify application of the more liberal standard of review

enunciated in Morton, Weeks, Fisher, and Antelope.

14. Fisher involved the exclusive jurisdiction of tribal courts

under the Indian Reorganization Act, 25 USC §476, which pre-

cluded access to state courts in adoption matters involving

tribal Indians.

15. Weeks involved Congressional legislation, 25 USC §§1291-

1297, authorizing distribution of funds to certain Delaware In-

dians but excluding others.

ei nntiitinieiie ee

14

Finally, 25 USC $194 does not even meet the standard

of Morton, were that standard to apply. The preference

granted in section 194 cannot be said to be “tied ration-

ally to the fulfillment of Congress’ unique obligation to-

ward Indians.” The Court, even where it has applied this

more liberal standard, has cautioned that it will “secrutin-

ize Indian legislation to determine whether it violates the

equal protection component of the Fifth Amendment”,

Delaware Triba’ Business Committee v. Weeks, 430 U.S.

73, 84 (1977). No such judicial scrutiny of 25 USC $194

has taken place in this case.

Implicit in the Court’s decision in Wilson v. Omaha

Indian Tribe, supra, is that the original purpose of the

statute when it was enacted in 1834 was to provide rem-

edies against non-Indian squatters on Indian land by off-

setting any unfair advantage the non-Indian might have.'®

However, if the statute may once have had a “rational tie”,

that “tie” has been lost as Indians have attained much

greater access to the courts and much greater resources

with which to litigate land ownership claims.

As is so clearly apparent from the circumstances of

the instant case, the Indian plaintiffs have been able to

enlist the vast resources of the United States Department

of Justice and the Bureau of Indian Affairs in litigating

the title claim. The United States, in fact, is the original

plaintiff and brought suit on behalf of the Tribe. 25 USC

§194, by reversing the normal burden of proof in a case

such as this has only served to give the United States and

the Tribe a further and unconscionable advantage. Surely,

16. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 664 (1979).

15

in these circumstances, the statute serves no purpose in

offsetting any “advantage” presumed to exist on the side

of the non-Indian claimant."

There is, we submit, no principled basis upon which

an automatic assignment of the burden of proof to the

“white person” or non-Indian can be constitutionally jus-

tified any longer.

sy

Ww

CONCLUSION

For the reasons stated above we request that this

Cross-Petition for a Writ of Certiorari be granted so

that the Court can conduct a full review of the constitu-

tionality of 25 USC §194.

Respectfully submitted,

ROBERT J. BECKER and THOMAS R. BURKE and

DONALD J. BURESH LYMAN L. LARSEN

Counsel for Respondents John R. Wilson, Charles E. Lakin,

Florence Lakin and Harold Jackson

PETER J. PETERS

Counsel for RGP, Inc. and Otis Peterson

17. If the purpose of 25 USC §194 is to ize the relative

positions the Indian and = mant in litigation

over property, this purpose is hardly served by exempting a

state—whose “advantage” over the Indian would seem even

more decisive—from under that statute, as was done

in Wilson v. Omaha Indian Tribe, 442 U.S. 653.