# Amicus Curiae Brief — Brendale v. Confederated Tribes and Bands of Yakima Nation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 492 U.S. 408

## Text

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/ SPANIOL, dR
NOS. 87-1622, 87-1697, and 87417" =

ie

4

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

PHILIP BRENDALE,
Petitioner,
Vv.
CONFEDERATED TRIBES AND BANDS OF
THE YAKIMA INDIAN NATION, ET AL.,
Respondents.

STANLEY WILKINSON,
Petitioner,
Vv.
CONFEDERATED TRIBES AND BANDS OF
THE YAKIMA INDIAN NATION,
Respondent.

COUNTY OF YAKIMA, ET AL.,
Petitioners,
Vv.
CONFEDERATED TRIBES AND BANDS OF
THE YAKIMA INDIAN NATION,
Respondent.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF OF THE STATE OF SOUTH DAKOTA
AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

State of South Dakota
State Capitol

Pierre, South Dakota 57501
Telephone: (605) 773-3215
Counsel of Record

John P. Guhin
Deputy Attorney General

QUESTIONS PRESENTED
I

WHETHER, CONSISTENT WITH THE 1834
STATUTE DEFINING INDIAN COUNTRY TO
EXCLUDE NON-INDIAN LANDS, THE
GENERAL ALLOTMENT ACT, THE INDIAN
REORGANIZATION ACT, AND INDIAN LAW
AND TREATY, INDIAN TRIBES HAVE BEEN
HISTORICALLY REGARDED AS HAVING
GENERAL CIVIL JURISDICTION OVER
NON-INDIANS AND THEIR LANDS ON
INDIAN RESERVATIONS.

II

WHETHER THE UNITED STATES
CONSTITUTION AS INTERPRETED IN
BOOS V. BERRY AND OTHER CASES,
PERMITS CONGRESS, WHEN ACTING ALONE
OR WITH AN INDIAN TRIBE, TO DEPRIVE
NON-INDIAN CITIZENS OF THEIR RIGHT
TO GOVERN THEMSELVES.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED
TABLE OF AUTHORITIES
STATEMENT OF INTEREST
SUMMARY OF THE ARGUMENT

ARGUMENT

I. INDIAN TRIBES HAVE NEVER
BEEN RECOGNIZED TO HAVE GENERAL
CIVIL JURISDICTION OVER NON-
INDIANS, AT LEAST ON FEE LANDS.

II. THE UNITED STATES
CONSTITUTION DOES NOT ALLOW THE
CONGRESS, EITHER ACTING ALONE
OR JOINTLY WITH AN INDIAN
TRIBE, TO DEPRIVE NON-INDIANS
OF THEIR RIGHT TO GOVERN
THEMSELVES.

CONCLUSION

APPENDIX

(ii)

iii

15

15

48

63

TABLE OF AUTHORITIES

CASES: PAGE
, 162 U.S.

499, 502-503 (1896) 25
Baker v. Carr, 369 U.S. 186 (1962) 32
Bates v. Clark, 95 U.S. 204,

208 (1877) _ 2 22. 38. 3, 20

‘ U.S. .
99 L.Ed.2d 333, 346 (1988) 14, 58
, 135 F. 947

(8th Cir. 1905) 37, 38
California v. Cabazon Band of Indians,

480 U.S. , 94 L.Ed.2d 244, 259,

n.19 (1987) 52

7
5 Pet. 1, 8 L.Ed. 25 (1831) 16
,
420 U.S. 425, 432 (1975) 2, 24
, 133 U.S. 258,
267 (1889) 57, 58
, 139 U.S. 449,

461 (1891) 60
; ia t Sie i.

Flores De Otero, 426 U.S. 572, 600

(1976) 56

(iii)

First English E ical Lut
Church of Glendale v. County of
Los Angeles, California, 482 U.S.

, 96 L.Ed.2da 250 (1987)

424 U.S.

Fletcher v. Peck, 6 Cranch 87,

3 L.Ed.

Fuentes v. Shevin, 407 U.S. 67

(1972)

382,

162,

’

383 (1976)

181 (1810)

39, 40,

147,
16, 30,

Goldberg v. Kelly, 397 U.S. 254 (1970)

, 846 F.2d 468,
493 (8th Cir. 1988)

in_ Re Crow Dog, 109 U.S. 556,
569 (1883)

LaPlante, 480 U.S.

94 L.Ed.2d 10 (1987)

Kinsella v. U.S., 361 U.S.

Local 28 of the Sheet Metal Workers

international Assn._v. EEOC, 478
88 L.Ed.2d 47 (1986)

,

Mattz v. Arnett, 412 U.S.
496 (1973)
Vv

411 U.S. 164, 172 (1973)

(iv)

’

44,

63,

45, 46, 48,

235 (1960)

481,

32

45

35

47

47

64

30

52

56

24

52

544 (1981)

’

450 U.S.
13, 3,
34, 35,
30, 40,
45, 46,

Missoula County, 200 U.S. 118

(1906)

845 (1985)

Nevada v. Hall,
(1979)

462 U.S. 324

’

440 U.S.

(1983)

, 809 F.

471 U.S.

410, 426

2d 1317

Nichols v. Rysavy
(8th Cir. 1987), cert. denied

U.S.

(1987)

Northern Pipeline Construction
Company v. Marathon Pipeline
Company, 458 U.S. 50, 67, n.17

(1982)

435 U.S. 191,

Reid v. Covert,
(1957)

436 U.S. 49,
dissenting)

206 (1978) 15,

354 U.S.

34, 35,

1, 5-6

’

82 (White, J.,

(v)

23,
36,
42,
48,

’
18,
36,

20,
43,

41

44

60

52

24

56

62

58

11

, 368 U.S.

351, 358 (1962)

Solem v. Bartlett, 465 U.S.
463, 468 (1984) 43, 37,

Thomas _v. Gay, 169 U.S. 264 (1898)

rin) Des Mo! school District
393 U.S. 503 (1969) a

United States v. Celestine, 215
U.S. 278 (1909)

Vv , 264 U.S.
446, 448 (1924)
, 435 U.S.
313, 323 (1978) 33, 34, 36,

Washington v. Confederated Tribes
of the Colville Indian Reservation

447 U.S. 134,

Williams v. Lee,
(1959)

WwW
551-552, 554,

W

’

152-154 (1980) 36,

358 U.S. 217
36,

» © Pet. 515,
8 L.Ed. 483 (1882)

476 U.S. 267 (1986)

OTHER REFERENCES:

Act of June 30,

Act cé April 29,

1834, 4 Stat. 729
1868, 15 Stat. 635

(vi)

28,

43,

45,

40,

17,

13,

18,

30

17

62

46

41

18

21

19

PAGE
Act of March 11, 1889, 25 Stat.

783, § 6 25
Act of May 2, 1890, § 31, 26 Stat.

81, 93 25
Dawes Act 15
General Allotment Act Ae She B2e

26, 28, 35
Indian Civil Rights Act 8, 9
Indian Financing Act of 1974,

25 U.S.C. § 1451 et seg. 50
Indian Reorganization Act of 1934,

48 Stat. 984 26
Indian Self Determination and Education

Assistance Act of 1975,

25 U.S.C. § 450 et seg. 50
18 U.S.C. § 1151 (1948) 13, 29, 20,

49, 52, 61
18 U.S.C. § 1165 3
25 U.S.C. § 331, 345, 352(a) and (b) 24
Bill of Rights 58, 59
Brakel, American Indian Tribal Courts,

(American Bar Foundation 1978) 11
Cohen, Handbook on Federal Indian Law,

359 (1942) . 28

(vii)

Declaration of Independence,
July 4, 1776

Executive Office of the President,
"Budget of the United States
Government, Fiscal Year 1989,"
p. 5-87, 5-88

Federalist No. 39 59,
Hearings Before the United States

’

Rapid City, South Dakota,
1986 5S, 6, 8, 9,

, 87th Cong.,
lst Sess., 89th Cong., list Sess.
(1961, 1965)

Otis, The Dawes Act and the Allotment
of Indian Lands (F. Pucha Ed.)

S§.D. Const. ai, 12, 14, S&,

(viii)

59

51

6C

10

11

24

59

NOS. 87-1622, 87-1697, and 87-1711

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

PHILIP BRENDALE,
Petitioner,
Vv.
CONFEDERATED TRIBES AND BANDS OF
THE YAKIMA INDIAN NATION, ET AL.,
Respondents.

STANLEY WILKINSON,
Petitioner,
Vv.
CONFEDERATED TRIBES AND BANDS OF
THE YAKIMA INDIAN NATION,
Respondent.

COUNTY OF YAKIMA, ET AL.,
Petitioners,
CONFEDERATED TRIBES AND BANDS OF
THE YAKIMA INDIAN NATION,
Respondent.

’ ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF OF THE STATE OF SOUTH DAKOTA

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

2
STATEMENT OF INTEREST

South Dakota comes before this Court
seeking to preserve the right of its
non-Indian citizens on fee lands to continue
to govern themselves.

Indian tribes in South Dakota have
recently and frenetically esvenabes to effect
a revolution in the governance of
non-Indians. For example, the Indian tribe
in Sisseton, South Dakota, has recently
Claimed the right to regulate non-Indian
fishing on all non-navigable lakes in the
area, even though some of the lakes are
surrounded 100 percent by non-Indians and
even though the Sisseton Reservation has been
disestablished. See DeCoteau_v. District
County Court, 420 U.S. 425 (1975).

The Indian tribe of the Pine Ridge
Reservation has attempted to coerce the State

of South Dakota into recognition of tribal

3
license plates even outside the borders of
the reservation.

The Indian tribe at the Cheyenne River
Sioux Tribe has attempted to force the
community of Isabel, a town of over 80
percent non-Indians, into buying a tribal
liquor license, in direct defiance of the
eesevel liquor law. See 18 U.S.C. § 1124.
The tribe has also retaliated for the failure
of the reservation communities to buy such
licenses by imposing a tribal boycott of such
towns in which such businesses are located.

Several tribes, including the Oglala
Sioux Tribe of Pine Ridge, the Rosebud Sioux
Tribe, the Cheyenne River Sioux Tribe and the
Standing Rock Sioux Tribe have enacted Tribal
Employment Rights Ordinances. See, e.g.,
excerpts from Oglala Sioux Tribe Ordinance
No. 84-08, set out in the Appendix. These
ordinances purport to impose a requirement

that a contractor or employer working in the

4
reservation, including one on fee lands, hire
any Indian over any non-Indian. The
ordinances most certainly violate the equal
protection clause. See Local 28 of the Sheet
Metal Workers International Assn. v. EEOC,
478 U.S. _—_s, -88 L.Ed.2d 47 (1986); Wygant

v. Jackson Board of Education, 476 U.S. 267

(1986). The ordinances also contain

provisions which may violate search and
seizure law, set up elaborate administrative
machinery for the enforcement of the
ordinances, and then impose a tax on the
mostly non-Indian businesses to pay for the
ordinances.

Non-Indians were not, of course, allowed
to vote for or against the enactment of any
of the ordinances or policies established by
the tribes as mentioned above. Nor can they
sit on a tribal jury to determine the

violation of such an ordinance.

5

If non-Indians are to be abruptly, in
1988, subjected to tribal governance, they
have the right, as a matter of at least
natural law, if not federal constitutional
law, to a government which is of a high
character and caliber. Moreover, because the
non-Indian citizenry has no opportunity to
participate in policy making, the non-Indian
citizen should at least be able to expect a
highly competent and independent judiciary.

Yet the experience in South Dakota is
plainly to the contrary. The recent hearings
before the United States Commission on Civil
Rights yield graphic examples. See Hearings
Before the United States Commission on Civil
Rights, Rapid City, South Dakota, 1986. The
Hearings, taken under oath, were teaming with
evidence of lawlessness. Four tribal judges
reported that they were suspended or fired as
a direct result of decisions made by then.

These include Rosebud Sioux Tribal Judge

6

Trudell Guerue (suspended), Hearings, p. 121;
Cheyenne River Sioux Tribe Judge Nancy Condon
(suspended), id. at p. 369, Judge Gilbert
LaBeau (fired), id. 139, 149; and Judge Woods
(fired), id. at 393. The chairman of the
Cheyenne River Sioux Tribe testified under
oath that tribal law has been "amended by the
tribal council that no reason is needed now
to remove a judge. All it takes is just an
action of the tribal council to remove a
judge." Id. at 383.

Perhaps even more ominous was the
readiness of the tribal councils to overrule
the decisions of the tribal courts. The
hearings reveal this is a regular occurrence.
See Hearings, p. 130, see also Hearings, ppp.
37, 75. But see, Hearings, p. 74. The
tribal councils are said to be "very
receptive" to requests to achieve a remedy
which a party had failed to achieve in court.

Hearings, p.28. The ability of tribal

7
councils to take such actions would not be so
disturbing, of course, in a situation in
which the non-Indians were able to vote for
members of the tribal council. If, however,
powers of tribal governments are unleashed to
dictate the affairs of non-Indians on fee
land on the reservation, it can be almost
certainly predicted that non-Indians who
manage to achieve justice in the tribal
courts will be faced with further obstacles
to the achievement of that justice in the
tribal councils. Since they have no
representation in the tribal councils? and

since the rule of law is not even

theoretically applicable therein, the

lindeed, the Bylaws of the Cheyenne
River Sioux Tribe extend the right to attend
the tribal council meetings only to "members
of the Tribe." Bylaws of the Cheyenne River
Sioux Tribe of South Dakota, Art. IV, § 6.

8
non-Indians can be said to have been deprived
of their most basic rights.

It is also important to stress that the
tribal councils profess to have the ability
to negate not only ordinary law but also
federal law, including the Indian Civil
Rights Act itself. On many reservations, the
Indian Civil Rights Act is a dead letter. On
the Cheyenne River Siowx Tribe Reservation,
the tribal judge regularly refers any Indian
Civil Rights Act action to the tribal council
to determine whether it will waive sovereign
immunity. Hearings, p. 356, 379. In no case
since 1979 has the tribal council waived such
immunity. Hearings, p. 377. A former judge
_at Rosebud has said of the Indian Civil
Rights Act, "The Indian Civil Rights
Act--this may not be nice to say, but you get
more use out of a roll of toilet paper. That
is nothing. It means nothing." Hearings, p.

125-126.

9

Professor Pomershein, a pro-tribal
government advocate, testified on the effect
that the assertion of sovereign immunity had
on the Indian Civil Rights Act in tribal
court: "I think that for all practical
purpose that puts an end to it" with the
exception of the habeas corpus relief.
Hearings, p. 17.

A glance through the hearing record
reveals other serious generic
aifficulties--300 people arrested ina four
to five month period who never came to court,
Hearings, p. 124, tribal judges who pre-sign
stacks of search warrants and arrest
warrants, Hearings, pp. 98-99; a prosecutor
fired eight times by the tribal council,
Hearings, p. 345; and the common practice of
litigants to obtain a new judge anda new
order when they do not like the old judge and
the old order, Hearings, pp. 36, 63.

Especially telling with regard to appellate

10
court judgments was the comment of Krista
Clark, an attorney with Dakota Plains Legal

Services:

I have had experience with the
appellate court issuing decisions
directly to lower court judges, and
the lower court judges, probably
because they didn't understand what
they were supposed to do,
completely ignoring what the
appellate court said for them to
do, and repeating the same exact
same errors. .

I don't think that precedent means
anything.

Hearings, p. 72.

The situation in tribal government and
tribal courts in South Dakota is serious.
Hearings elsewhere, we are informed, reveal
the same problems in other places. Letter
dated January 26, 1988, from John R. Bolton,
Assistant Attorney General, U.S. Department
of Justice, to Senator Daniel K. Inouye,
included as Appendix B to Brief of States of
Arizona, et al. in Support of Petitions for a

Writ of Certiorari to the United States Court

11
of Appeals for the Ninth Circuit in this
litigation. Nor are these new problems, as
revealed by the hearings on the Civil Rights
Act in the late 60's. See Hearings Before
the Subcommittee on Constitutional Rights of

the Senate Committee on the Judiciary, 87th
Cong., 1st Sess., 89th Cong., ist Sess.

(1961, 1965). See also Brakel, American
Indian Tribal Courts, The Costs of Separate
Justice (American Bar Foundation 1978). The
work by Brakel, a research attorney for the
American Bar Foundation, is especially
illuminating in that it, when read with the
transcript of the recent hearings, reveals
the persistence, and indeed the worsening of
problems within the tribal judicial systems.
See also, Santa Clara Pueblo v. Martinez, 436
U.S. 49, 82 (1978) (White, J., dissenting).
The South Dakota Constitution adopted in
1889, pronounces the people of South Dakota

grateful for their "civil and religious

~v

12

liberties," and sets forth the purposes of
the Constitution to form a "more perfect and
independent government, establish justice,
[and] ensure tranquility ...." Preamble,
S.D. Const. Preservation of the right of
non-Indians on fee lands to continue to rule
themselves will serve that end. Subjection
of non-Indians to the governance of the
tribes will run counter to that end. For
these reasons the State of South Dakota
requests this Court to overturn the decisions
of the Court of Appeals. *

SUMMARY OF ARGUMENT

South Dakota's argument is in two parts.

First, South Dakota argues that the commonly

2see Reviser's Note, 1948 Act, 18 U.S.C.

§ 1153 for a brief overview of some of the
complex jurisdictional history of the state
of South Dakota.

13

shared assumption of the executive,
legislative, and judicial branches was that
the tribes were not to have jurisdiction over
non-Indians and especially non-Indians on fee
lands. Indeed, the historical concept of
"Indian country" did not, in general, even
include nori-Inédian lands on reservations.
oun 4 Stat. 729, Act of June 30, 1834; Bates
v. Clark, 95 U.S. 204, 208 (1877). It was
not until the passage of 18 U.S.C § 1151 in
1948 that Congress declared fee lunds to be
"Indian country." See, Solem v. Bartlett,
465 U.S. 463, 468 (1984). Moreover, because
the lands at issue were apparently conveyed
under the authority of the Allotment Acts,
the rule of Montana _v. United States, 450
U.S. 544, 559, n.9 (1981) precluding tribal
jurisdiction over non-Indians who took the
allotments is applicable.

South Dakota next submits that a change

(or affirmation) in federal policy to permit

14
the tribes to have civil jurisdiction over
non-Indians, and especially those on fee
lands, is constitutionally impermissible.
The reason is a basic one. Non-Indians are
excluded from participation in tribal
government. To impose tribal jurisdiction on
a non-Indian deprives him of his most basic
rights under the Constitution. Since
Congress cannot, even under the treaty power,
deprive any of its citizens of their rights

under the Constitution, see Boos v. Barry,
Vv. , 99 L.Ed.2d 333, 346 (1988), it

cannot deprive the non-Indians on the plains
of South Dakota of their right to
representative gcvernment any more than it
could deprive blacks inthe city of Selma,
Alabama of their right to representative

governuent.

ARGUMENT

INDIAN TRIBES HAVE NEVER BEEN RECOGNIZED

TO HAVE GENERAL CIVIL JURISDICTION OVER

NON-INDIANS, AT LEAST ON FEE LANDS.

In determining whether Indians are now,
or have been at any time, assumed to have
civil jurisdiction over non-Indians, it is
useful to examine the periods before, during
and after the General Allotment Act or Dawes
Act. Each of these periods, in the opinion
of the State, yields the conclusion that the
common understanding was that tribal civil
jurisdiction did not extend to non-Indians,
especially those non-Indians beyond the
limits of the lands owned by the tribe or
held in trust by the tribe. The common

understanding or presumption of the

executive, judicial and legislative branch
is, of course, significant. See Oliphant v.

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

16

Pre-General Allotment Act Era.

From the very first, this Court has
indicated that the tribal governments
retained a right to govern only tribal
members and that this right extended only to
tribally owned and occupied iands.

Fletcher v. Peck, 6 Cranch 87, 147, 3

162 (1810), Justice Johnson stated:

All of the restrictions upon the
right of soil and the Indians,
amount only to an exclusion of all
competitors from their markets; and
a_ limitation upon their sovereignty
amounts to the right of governing
every person within their limits
except _ themselves. (Emphasis
added. )

Justice Marshall pronounces the Indians
to be domestic dependent nations in The

Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed.
25 (1831).

They occupy a territory to which we
assert a title independent of their
will, which must take effect in
point of possession when their
right of possession ceases.
Meanwhile they are in a state of
pupilage. Their relation to the

Critically, he goes on to say:

17

United States resembles that of a
ward to his guardian.

8 L.Ed. at 31. The Indians are wards of the
United States; when they give up their
property the United States gains title. What
occurs at that moment? The Plaintiffs in the
case now before this Court argue that at this
moment the tribe becomes the ruler of
non-Indians on the property which they have
ceded. Clearly the opposite is implied.
Congress could not have intended the ward to
become the guardian when his right to
particular territory ceased. See _also,
United States v. Payne, 264 U.S. 446, 448
(1924).

In Worcester v. Georgia, 6 Pet. 515,
551-552, 554, 8 L.Ed. 483 (1882) # Chief

Justice Marshall examined the tribal
acknowledgement of dependence upon the United
States as embodied in treaty and stated:

The Indian nations were, from their
Situation, necessarily dependent on

18

{the United States] .. . for their

protection from lawless and
injurious intrusions into their
country.

Id. at 555, 8 L.Ed. 483. According to the
Oliphant Court, 435 * — 2 | - this
acknowledgement implied “in all probability"
that the tribe recognized that the United
States would arrest and try non-Indian
intruders who came into their reservation.

The dependence of the tribe on the
United States for criminal jurisdiction
purposes was thus made apparent by the treaty
itself.

A similar statement of dependence, a
statement which clearly is a dependence as to
wrongs done to property, is included in the
1868 Treaty with the Sioux. This treaty is
of special interest to the State of South
Dakota since it involves South Dakota tribes,
among others. The Treaty with the Sioux at

Art. I states:

19
=

If bad men among the whites
among other people subject to the
authority of tne United States,

shall commit any wrong upon the
the United States will, upon proof

made to the agent and forwarded to
the Commissioner of Indian Affairs
at Washington City, proceed at once
to cause the offender to be
arrested and punished according to
the laws of the United States, and

also reimburse the injured person
for the loss sustained.

15 Stat. 635, Act of April 29, 1868 (emphasis
added).

Thus the section requires the Indians to
turn over a white person who has committed a
wrong, or tort, against the "person or
property of the Indians" to the federal
authorities who will “reimburse the injured
person for the loss sustained."

This is the essence of a civil recovery.
The Indians were not allowed civil
jurisdiction over the non-Indians; they were
to turn the person who injured an Indiane« or

damaged property over to the federal

20

authorities who would then take care of the
matter. Thus the situation in South Dakota
goes further than in Oliphant in that’ the
precise actions of the United States are
described in the treaty itself. Tribes
subject to the 1868 Treaty, therefore, cannot
been recognized as having general civil
jurisdiction over non-Indians through
treaty--the contrary is clearly the case.
= In determining the reach of tribal
jurisdiction, it is also important to note
the development of statutory law. In 1834
the Congress enacted "An Act to Regulate
Trade and Intercourse with Indian Tribes and
to Preserve Peace on the Frontiers." The Act
defines “Indian country" as follows:

That all that part of the United

States west of the Mississippi, and

not within the states of Missouri

and Louisiana, or the territory of

Arkansas, and, also, that part of

the United States east of the

Mississippi river, and not within

any state to which the Indian title
has not been extinguished, for the

21

purposes of this act, be taken and
deemed to be the Indian country.

4 Stat. 729, Act of June 30, 1834. The Act

thus recognizes as Indian country only that

land to which the Indian title had not been
extinguished. Where Indian title was

extinguished, there was no Indian country.

Moreover, this Act was found, in 1877,
to be applicable to all lands, whether east
or west of the Mississippi, clearing up any
potential ambiguity in the statute.

The simple criterion is, that,
as to all the lands thus described,
it was Indian country whenever the
Indian title had not been
extinguished, and it continued to
be Indian country so long as’ the
Indians had title to it, and no

longer. As soon as _ they parted
ith tl tit]
Indian country, without any further

Act of Congress, unless by the
Treaty by which the Indians parted
with their title, or by some Act of
Congress, a different rule was made
applicable to the case.

Bates v. Clark, 95 U.S. 204, 208 (1877)
(emphasis added). Thus, leading into the

22
period of the General Allotment Act, both
common law andthe statutory law indicated
that in general a tribe's jurisdiction ceased
where its land ownership ceased.
B. The General Allotment Act Era.

The reason this

Court is that non-Indians reside on the
reservation. The reason non-Indians’7 reside
on the reservation is that Congress enacted

the General Allotment Act establishing the
federal policy to invite non-Indians to the

reservations. The issue, therefore, is
whether Congress intended the non-Indians who
took advantage of the General Allotment Act
to be subject to tribal jurisdiction.

This Court definitively identified the

purpose and effect of the General Allotment

Act in Montana v. United States, 450 U.S. 544

(1981). The opinion points out that the

"policy of the Acts was the eventual

assimilation of the Indian population" and

case comes before this .

5 se nee A Peale At! hl ata

23
the elimination of "tribal relations." 450

U.S. at 559, n.9. Consistent with the "Act

to Regulate Trade and Intercourse with Indian

see Bates v. Clark,

intended

Tribes" passed in 1834,

supra, Congress in passing the
General Allotment Act that diminishment of
territory of the tribe would necessarily
preclude the exercise of jurisdiction by the
tribe as to that territory and to the persons

taking allotments. According to the Court:

Indeed, throughout the
congressional debates, allotment of
Indian lands was consistently

equated with the diminishment of

tribal affairs and jurisdiction
[citing several senatorial
speeches].

450 U.S. at 559, n.9. The Court went on to

say:

It defies common
that Congress would
non-Indians purchasing allotted
lands would become subject to
tribal jurisdiction when an avowed
purpose of the allotment policy was
the ultimate destruction of tribal
government.

sense to suppose
intend that

24
Id.

See also, DeCoteau_v. Dist. County
Court, 420 U.S. 425, 432 (1975); Mattz v.
Arnett, 412 U.S. 481, 496 (1973); Nichols v.
Rysavy, 809 F.2d 1317 (8th Cir. 1987), cert.
denied U.S. ___, (1987) (construing
several allotment statutes including 25
U.S.C. § 331, 345, 352(a) and (b)). #£See
also, Otis, The Dawes Act and the Allotment
of Indian Lands (F. Pucha Ed.).

In line with this view are the
congressional enactments establishing a
United States court "in Indian territory."
The first—act, in 1889, provided general
jurisdiction and civil actions would lie in
United States court. The important proviso

is

Nothing herein contained shall be
construed to give the [United
States] court jurisdiction over
controversies between persons of
Indian blood only. ...

25
25 Stat. 783, § 6, Act of March 11, 1889.
Thus, the tribal court by implication had no
jurisdiction to hear actions involving
non-Indians. It could hear "controversies
between persons of Indian blood only."
Similarly, the following year, the Act
was amended but the jurisdiction of the
tribes was again identified. Section 31
states that the
Judicial tribunal of the Indian
nations shall retain exclusive
jurisdiction in all civil and
criminal cases arising in Indian
country in which members of the
nation by nativity or adoption
shall _ be the only parties.

Act of May 2, 1890, § 31, 26 Stat. 81, 93.

See Alberty v. United States, 162 U.S. 499,
502-503 (1896), pointing out that the

Congress in this Act limited the jurisdiction
of the tribal court beyond that of the 1868
Treaty with the Cherokee.

In other words, the Congress in these

Acts refused to recognize any civil

26
jurisdiction in Indian country with regard to
non-Indians, even non-Indians on Indian
lands. Such a Congress would not, it seems
reasonable to say, vest civil jurisdiction
over non-Indians in a place not thought to be
Indian country. Thus, the Congresses which
enacted the Allotment Acts could not have
intended that the tribes have jurisdiction in
civil matters over non-Indians on the newly
allotted lands. Such is completely
inconsistent with the interpretation of the
General Allotment Act in Mo v
States and of the contemporaneous legislation
cited above.
c. The Post General Allotment Act Era.

One of the principal landmarks of the
post General Allotment Act era is the Indian
Reorganization Act of 1934. 48 Stat. 984.
The amicus brief on the merits submitted by
the State of Washington thoroughly demolishes

the myth that the Indian Reorganization Act

27
recognized tribal jurisdiction over
non-Indians. Exactly the contrary is true,
as Washington so ably establishes. A _ proper
reading of the IRA strongly supports the
thesis that the tribes were not intended to
have jurisdiction over non-Indians.

Moreover, the post General Allotment Act
era was marked by a continued recognition of
the nexus between ownership of lands by
Indians and reservation status. In Solem vv.

Bartlett, 465 U.S. 463, 468 (1984) the Court
explained:

The notion that reservation status
of Indian lands might not be
coextensive vith tribal ownership
was unfamiliar at the turn of the
century. Indian lands were
judicially defined to include only
those lands in which the Indians
held some form of property
interest: trust lands, individual
allotments, and to amore limited
degree, open lands that had not yet
been claimed by non-Indians.
[Citations omitted.] Only in 1948
did Congress uncouple reservation
status from Indian ownership, and
statutorily defined Indian country
to include lands held in fee by

iit

28

non-Indians within reservation
boundaries.

Thus, at least until 1948, fee lands
within the boundaries of a reservation were
not regarded as "Indian land." See also,
Cohen, Handbook on Federal Indian Law, 359
(1942). The reservation was not regarded to
be coextensive with its external boundaries.
For these reasons alone, the non-Indian on
fee land remains today beyond the
jurisdiction of the tribe. This is so
because the United States granted the
property in question to non-Indians' before
1948,° and must have intended, consistent
with the line of cases from Bates through
Solem v. Bartlett and consistent with the

policy of the General Allotment Act, that the

The Indian Reorganization Act of 1934
halted further disposition of tribal
territory.

29
non-Indians would not then be in _ Indian
country and hence certainly not subject to
Indian jurisdiction.
A critical distinction must be made at
this juncture. It is now established that

fee lands on the reservation are, by virtue

of the Act of 1948, "Indian country." See
Solem v. Bartlett, 465 U.S. at 468.

Nonetheless, the intention of the
Congress with regard to civil jurisdiction
over non-Indians on fee patented lands must
be separately considered. Seymour Vv.
Superintendent, 368 U.S. 351, 358 (1962)

points out that the reason for passage of 18
U.S.C. § 1151 in 1948 was the avoidance of
checkerboard jurisdiction in criminal
matters. See also, Reviser's Note, 1948 Act.
No reasonable argument can be made that the
1948 Act extended tribal civil jurisdiction
over non-Indians when the Act was, in fact,
intended to set the parameters of federal

oli

30
jurisdictio Ov dians. While
the technical legal status of fee lands may
be reservation by virtue of the 1948 Act, and
while the tribes may therefore have
jurisdiction over their own members on those

particular lands by virtue of this Act, OF 6

United States v. Celestine, 215 U.S. 278

(1909) the intent of Congress with regard to
on- lans on fee lands within the
reservation remained that they were beyond
tribal civil jurisdiction, consistent with
the Court's decision in Montana v. United
States.
Recent Cases
The inability of a tribe to control any

affairs but their own, see Fletcher v. Peck,

6 Cranch 87, 147, 3 L.Ed. 162, 181 (1809); In

Re Crow Dog, 109 U.S. 556, 569 (1883) and the
statutory and common law limitations of
tribal authority to their own land and

members set the stage for the most important

31

recent Indian cases. In Oliphant v.
Suquamish Indian Tribe, 435 U.S. 191 (1978),
this Court found that the Indian tribes were
prohibited from exercising powers which were
inconsistent with their status. The Court
said:

from the formation of the Union and

the adoption of the Bill of Rights,

the United States has manifested an

equally great solicitude that its

citizens be protected by the United

States by unwarranted intrusions on

their personal liberty. The power

of the United States to try and

criminally punish is an important

manifestation of the power to

restrict personal liberty.
435 U.S. at 210. The tribes now, in effect,
contend that a non-Indian may be deprived of
rights in his property by tribal courts and
deprived of his right to govern himself by
tribal governments even though these rights,
enforceable in civil court, are of

constitutional dimension. Zoning, of course,

the issue inthis very case, can effect a

constitutional taking, see First English

32

Evangelical Lutheran Church of Glendale v.
County of Los Angeles, California, 482 U.S.

___, 96 L.Ed.2ad 250 (1987). Likewise, the
government may act unconstitutionally to
deprive a debtor of his property. Fuentes v.
Shevin, 407 U.S. 67 (1972). The very right
to one-person one-vote is enforceable by
civil action. Baker v. Carr, 369 U.S. 186
(1962). Certainly invasion of these rights
constitutes unwarranted intrusion into
personal liberty condemned in Qliphant.

The Oliphant Court also pointed to! the
"commonly shared presumption of Congress, the
executive branch, and the lower federa}.
courts that the tribal courts do not have the
power to try non-Indians. ..." 435 U.S. at
406.

It should be noted, again, that the
commonly shared presumption was that Indian
tribes did not have jurisdiction outside of

their own territory and that their territory

33

ended where their property ended. Thus the
commonly shared presumption was that a
non-Indian on fee land would not be subject
to the jurisdiction of the tribal courts if,
for no other reason, than that those _ fee
lands were outside of what was regarced as
Indian country or the Indian reservation.

In United States v. Wheeler, 435 U.S.

313, 323, the Court again referred to the

fact that tribal jurisdiction was limited "by
implication as a necessary result of their
dependent status." 435 U.S. at 323. Of note
is the specific recognition of what the Court
believed the inherent tribal sovereignty of
the tribe to\be. The Court referred to the
right to determine the "membership" in the
tribe, "to regulate domestic relations among
tribe members" and also "to prescribe rules
for the inheritance of property." 435 U.S.
at 322, n.18. While this list may not have

been intended to be exclusive, the citation

34

of the six cases inthe footnote, and the
identification of specific sorts of powers,
leads quite quickly to the conclusion that
the Court did not assume that the tribe had
broad powers over non-Indians. When the
Court identified the constituents of inherent
sovereignty in Wheeler, it certainly did not,
by any stretch of the imagination, imply that
the tribes had a broad authority over
non-Indians. Indeed, the opposite is very
strongly implied.

Montana v. United States, 450 U.S. 544
(1981) builds upon Oliphant and Wheeler.

Montana's holding is based on two
related principles. First, Montana finds
that Congress did not intend non-Indians who
took property under the General Allotment Act
to be subject to tribal jurisdiction. 450
U.S. at 559, n.9. As discussed above, the
Court found that such would defy "common

sense."

35
Second, the Court re-echoed the words of
Justice Johnson in Fletcher v. Peck to the
effect that the Indians had lost any "right
of governing every person within their limits

except themselves." Fletcher v. Peck, 6

Cranch 87, 147, 3 L.Ed. 162, quoted in
Montana v. United States, 450 U.S. at 565.
According to the Montana Court, 450 U.S. at

464, the principles on which Oliphant, supra

relied

SOR. 50 nS DERAR OE DEED

3", IO" ar
The Court went on to apply the two
principles--i.e. relating to the General
Allotment Act and to inherent sovereignty to
find the nonexistence of tribal jurisdiction
over non-Indian hunting and fishing.

The general rule of Montana is
plain--tribes have no jurisdiction over

non-Indians.

36

The court then, in dictun, listed
several exceptions to the general rule.
These exceptions, it might be noted, were not
analyzed for consistency with Oliphant,
Wheeler, or indeed, with the holding in
Montana itself.

Nonetheless, the cases cited in Montana
as exceptions to the general rule may be

helpful to determine the quality and nature

of jurisdiction included in the exceptions.

The Court first referred to regulations of
those who entered "consensual relationships"
with the tribe or its members. Wi Ss_v
Lee, 358 U.S. 217 (1959), merely holds that
the state cannot exercise jurisdiction over

an Indian who makes a contract in Indian

country. Washington v. Confederated Tribes
of the Colville Indian Reservation, 447 U.S.

134, 152-154 (1980), in the pages cited, says

that a tribe can tax a non-Indian purchasing

37
cigarettes on trust land within a
reservation.

A tax case decided by the Eighth Circuit
Court of Appeals, us v. Wri , 135 F.
947 (8th Cir. 1905) is also cited. Buster
finds that a non-Indian may be subjected to a
license requirement of the Creek tribe even
on privately owned land. The Eighth Circuit
found that the Creek territory was not

subject to the rule set out in Bates v.

Clark, supra. Buster v. Wright is also

apparently unique insofar as the acts of the
tribal council were approved by the President
of the United States. Moreover, it seems
unique in that the allotments’ to the
non-Indians were apparently not under the
Allotment Act, see Montana v. U.S., but
pursuant to deeds signed by the President of
the tribe and the Secretary of the Interior.
The State thus suggests that the

decision of the circuit court in Buster

38
should be given little weight as it refers to
a clearly unique situation on several
critical points.

In sum, in the "consensual" exceptions
to the general rule set as in Montana, the
Court indicated that the state could not
force an Indian into state court with regard
to a contract which was undertaken in Indian
‘country, and that the tribe could tax
non-Indians purchasing products on trust land
within the reservation. The effect of Buster
v. Wright remains problematic because of the
unique factual and legal situation therein,
especially when the language of the circuit
court opinion is tested against the explicit
language with regard to the allotment acts in
Montana, and Bates v. Clark.

The second part of the Montana exception
is as follows.

A tribe may also retain inherent

power to exercise civil authority
over the conduct of non-Indians on

39

fee lands within its reservation

when that conduct threatens or has

some direct effect on the political

integrity, the economic security,

or the health or welfare of the

tribe.
450 U.S. at 566. It is not too much to say
that this Montana exception has inspired
frenzied exertions on the part of the tribes
to impress their jurisdiction upon
non-Indians. Yet when the case authorities
explaining and analyzing the actual
parameters of the tribal authority are
analyzed, the tribal authority is seen not to
correspond with the tribal claims. Four
cases are cited by the Court. Fisher v.
Dist. County Court, 424 U.S. 382, 383 (1976)
stands for the proposition that state courts
do not have jurisdiction over an adoption
proceeding “in which all parties are members

of the tribe and residents of the northern

Cheyenne Reservation."

40

Williams v. Lee, supra, is cited for the
familiar rule that state jurisdiction is
preempted when the state action infringes on
the right of reservation residents to make
their own laws and be ruled by then. In
Williams, of course, the state of Arizona was
forbidden to force an Indian into state court
with regard to certain goods sold on the
reservation.

Thus, the first two cases cited under
the "political integrity" exception stand
only for the proposition that state courts do
not have jurisdiction over certain Indians
with regard to acts which take place on the
reservation.

Advocates of expansive tribal
sovereignty who rely upon these two cases to
support their interpretation of the Montana
language are simply not justified. Fisher
did not involve any non-Indian parties and

therefore cannot stand for such a

41

proposition. Williams involved an Indian
defendant and excused the Indian defendant
from participating in the state court
proceeding. Williams does not force a
non-Indian defendant (or plaintiff for that
matter) into tribal courts. |

Moreover, the Court also cited as having

particular relevance two cases decided around

the turn of the century. In Montana Catholic
Missions v. Missoula County, 200 U.S. 118

(1906) a religious order argued that certain
cattle had been dedicated to the benefit of
the Indians and therefore were exempt from
state taxation. The cattle were alleged to
"graze upon lands included within the said
reservation." 200 U.S. at 122. The
religious order contended that the cattle
could not be taxed by the state. The Supreme
Court found that the religious orders
unreservedly owned the cattle and that their

Claim to exemption from state taxation was

42

without "plausibility." Thomas v. Gay, 169

U.S. 264 (1898), also rejects a challenge to
state authority on the reservation. mas
held that a state can tax cattle owned by a
non-Indian even though the cattle are grazed
on the reservation on land leased from the
Indians. The tax was "too remote and
indirect to be deemed a tax upon the lands or
privileges of the Indians." 169 U.S. at 273.

Thus two of the cases cited in the
"political integrity" exception in Montana
recognize immunity of Indian defendants’ from
the jurisdiction of state courts. Two
approve the jurisdiction of state courts on
reservation land in taxation matters.

It is also important to emphasize that
none of the cases within the "political
integrity" exception subject any non-Indian
to any civil jurisdiction of a tribal court.
The attempt to make of these cases what they

are not must be rejected. Moreover, it is

43

suggested that this is why, in the "political
integrity" exception, the Court said only
that the tribe "may also retain inherent
power" over these matters. The use of the
term "may" indicates an appreciation by the
Court of the lack of definitive common law or
statutory authority on the subject and a
desire to await further elucidation on the
issue before allowing tribal jurisdiction
over non-Indians who were unable to
participate in the tribal government.

In sum, the Oliphant, Wheeler, Montana
triad indicate that, as a general rule, the
tribes have no jurisdiction over non-Indians
on fee lands. Such is consistent with the
early cases of this Court and is consistent
with the statutory and common law rule under
which the purchaser of allotted lands acted.
The tribe simply had no jurisdiction where it

had no territory. Since fee lands were not

44
within the tribal territory, the tribes had
no jurisdiction.
The tribal claim will no doubt be that

two recent cases of the Court change the law.

The first of these is National Farmers Union
Insurance Company v. Crow Tribe, 471 U.S. 845
(1985). In this case, however, the Supreme

Court held only that the tribal court had the
first chance to determine whether it had
civil jurisdiction over non-Indians. The
Court's "may" language in the Montana case
with regard to that jurisdiction left that an
open question. While the state may not agree
that it is a wise use of judicial resources
to remand the matter to the initial
determination of the tribal court, it
certainly cannot be said that National
Farmers Union overrules Montana.

The second case often cited by the

tribes is W sura n Vv

completely ignores the citation by the

of the Montana, Confederated Tribes,

Fisher cases. Citation of these opinions

45
LaPlante, 480 U.S. , 94 L.Ed.2da
(1987). In LaPlante, the court said:
Tribal authority over the
activities of non-Indians on
reservation lands is an important
part of tribal sovereignty. See

Montana v. United States, 450 U.S.
544, 565-566, 67 L.Ed.2d 493, 101
S.Ct. 1245 (1981); Washington v.
Confederated Tribes of Colville
Indian Reservation, 447 U.S. 134,
152-153, 65 L.Ed.2d 10, 100 S.Ct.
2069 (1980); Fisher v. District
Court, 424 U.S., at 387-389, 47
L.Ed.2d 106, 96 S.Ct. 943. Civil
jurisdiction over such activities
presumptively lies in the tribal
courts unless affirmatively limited
by a specific treaty provision or
federal statute.

94 L.Ed.2d at 21.

10

The tribes have read this language to

mean that civil jurisdiction over

misreading of that language, for

all

activities of non-Indians is presumptively in
the tribe. This is, of course, a_ serious

it
court

and

46
indicates only that jurisdiction as to the
activities cited in the three opinions, would
normally lie in the tribal court. Thus, to
determine the meaning of the LaPlante

citation, it is necessary to return again to

Montana _v. United States, 450 U.S. at
565-566, a task already completed here.

Likewise, inspection of Washington _v.
Confederated Tribes of the Colville Indian

Reservation, 447 U.S. at 152-153, indicates

only that a tribe can collect a tax for sales
made on trust lands to non-Indians. Fisher
v. District Court, 424 U.S. at 387-389, as
noted, indicates only that the state court
does not have jurisdiction over an adoption
proceeding in which all of the parties are
members and residents of the particular
reservation. LaPlante merely reiterates
previous holdings of the court; the attempt
to stretch LaPlante beyond plausibility is

unwarranted.

47

The contrary conclusion, that is, that
all non-Indian activity on reservation lands
presumptively lies within tribal jurisdiction
is simply unwarranted and sets up an
unworkable dichotomy between criminal and
civil matters.

It is apparent that one's rights might
be severely affected by a civil proceeding.
For example, a rifle, boat or house may be
confiscated through civil means only yet the
effect is far greater than a criminal
proceeding which, for example, may result in
a $25 fine. The dichotomy likewise sub
Silentio rejects the applicability of the
Constitution to civil matters although this
Court has regularly found the Constitution to
be applicable. See, for example, Goldberg v.
Kelly, 397 U.S. 254 (1970); Fuentes Vv.
Shevin, 407 U.S. 67 (1972); Tinker v. Des
Moines School District, 393 U.S. 503 (1969).

Finally, even if the presumption language in

48
LaPlante is given broad effect, it does not
compel a result favorable to the tribal
position here. Montana establishes that
non-Indians purchasing land under the General
Allotment Act would not be subject to tribal
jurisdiction. Thus, insofar as the lands at
issue here were purchased under the authority

of that Act, (or in the opinion of the State,

contemporaneous act), they certainly should
be free from tribal jurisdiction. The
"Specific . . . federal statute" requirement

of LaPlante can thus be satisfied.

In sum, even if LaPlante is given the
broadest possible reading, a reading which
ignores the language and citations within the
opinion, it may not have an effect here.

II

THE UNITED STATES CONSTITUTION DOES NOT

ALLOW THE CONGRESS, EITHER ACTING ALONE

OR JOINTLY WITH AN INDIAN TRIBE, TO

DEPRIVE NON-INDIANS OF THEIR RIGHT TO
GOVERN THEMSELVES.

49

As set forth above, Bates v. Clark, 95
U.S. 204 (1877), definitively established
that, as a general rule, Indian country did
not extend beyond the boundaries of Indian
owned land (or land held in trust for
Indians) until 1948. Moreover, M Vv.
United States, 450 U.S. 544 (1981),
established that Congress did not intend that
non-Indians purchasing land under the
Allotment Act would be subject to tribal
jurisdiction. This would "defy common sense"
because Congress clearly intended the
reservations to be quickly terminated.

Thus common law and statutory law
combined to limit tribal jurisdiction until
at least 1948. In that year, of course,
Congress enacted 18 U.S.C. § 1151 which
extended the term "Indian country" to include
fee lands within a _ reservation. Congress

thereby took a positive step to increase the

50
jurisdiction of the United States in criminal
matters over tribal members.“

Moreover, Congress, since 1948, and
especially since the early 1960's, has taken
various actions to strengthen tribal
government. Congress has, for example,
enacted the Indian Financing Act of 1974, 25
U.S.C. § 1451 et seq. andthe Indian Self
Determination and Education Assistance Act of
1975, 25 U.S.C. § 450 et seq.

Congressional interest in strengthening
tribal governments is also argued to be
demonstrated by budgeting for Indian

programs.

4uhe view of the state is that Congress
did not intend by passage of 18 U.S.C. § 1151
to impose tribal civil jurisdiction on
non-Indians. See supra, pp. 28-29. The
inclusion of the fee lands on the reservation

within the term "Indian country," however,
has allowed tribal government advocates to
make the arguments for expansive

jurisdiction.

51

Total discretionary budget
authority requested for special
Indian programs Government-wide,
including programs in other
functions such as income’ security
and education, is expected to be
$3.1 billion in 1989.
Corresponding outlays are estimated
to be $3.4 billion. These amounts
do not include payments received by
Indians from trust funds
established for their benefit or
from programs serving all qualified

U.S. citizens.

Executive Office of the President, "Budget of
the United States Government, Fiscal Year
1989," p. 5-87, 5-88.

What the foregoing pointedly
demonstrates is that, at least until 1948,
congressional enactments and federal policy
prevented tribes from exercising expansive
jurisdiction over non-Indians. After that
period, especialiy in the 1960's and beyond,
it has been argued that Congress has actively

aided and abetted in the expansion of

jurisdiction of tribes over non-Indians.

52

A vital linchpin of this analysis has
been the idea that current federal policy
informs the judicial inquiry requiring the
reach of Indian sovereignty. See, McClanahan
v. Arizona State Tax Comm., 411 U.S. 164, 172
(1973). For example, New Mexico v. Mescalero
Apache Tribe, 462 U.S. 324 (1983), citing

current federal legislation, stated that

fSjtate jurisdiction is preempted
‘if it interferes or is
incompatible with federal or tribal
interests reflected in federal law;
unless. .. .

See also, California v. Cabazon Band of
Indians, 480 U.S. _, 94 L.Ed.2d 244, 259,
n.19 (1987); Iowa Mutual Insurance Co. v.
LaPlante, 480 U.S. _—,_:~=«—™94 L.Ed.2d 10, 18,

n.5. Thus the argument, sub silentio until
now, appears to be that while Congress in the
pre-1948 period recogni ed that non-Indians
on fee lands on the reservation had a right
to govern themselves, the Congress, by

enacting 18 U.S.C. § 1151, and by providing a

53
backdrop of legislation favoring tribal
government, can and has deprived non-Indians
on reservations of their right to
self-government.

The question unanswered by the recent
actions of Congress and by the preemption
analysis is whether Congress acting alone or
in conjunction with an Indian tribe can
constitutionally deprive non-Indians of the
right to govern themselves, especially on fee

lands within the reservation. >

> Because the Constitution does not apply

to Indian tribes, see Talton v. Mayes, 163
U.S. 376 (1896), a non-Indian subjected to
the jurisdiction of atribe is deprived of
his constitutional rights. The Indian Civil
Rights Act is not, even in theory, the
equivalent of the Constitution. For example,
non-Indians may consistently with the ICRA,
be excluded from participation in tribal
government. Moreover, the federal courts are
not available to redress violations of the
Act, see Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978) (except for habeas corpus),
although such relief was once apparently

(Footnote Continued)

\

54

The issue is framed here in the context
of whether a state may zone fee lands within
a reservation. When a state or county zones,
of course, it zones through a _ popularly
elected body. All residents, regardless of
race or affiliation, can vote for the members
of the body. A regulation that only those
with particular blood quantum could vote ina
county election would be anathema and struck
immediately as inconsistent with the
Consttintnn. All county residents can
likewise participate in any initiative,
referendum, or recall which might be
available under applicable state law. Any

person can run for office. This is the

(Footnote Continued)
thought possible. See Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191, 212 (1978). As

‘the Statement of Interest above indicates,

tribal courts and councils treat the ICRA
with disdain and have made it a true dead

letter. See, supra, pp. 2-12.

55
context in which the county at issue has
zoned; the right to zone stands before the
court as the right to self-government.

In place of zoning by a democratically
elected body, however, the tribe seeks to
impose zoning by hereditarily formed
aggregation, whose membership is determined
by the presence of a particular strain of
blood. Only those privileged by descent can
vote in tribal elections, hold tribal office,
sit on tribal juries, or become members of

the tribe. The tribe is, simply and

directly, the quintessence of an undemocratic

regime. '
Can the United States deprive
non-Indians of their right to govern

themselves? The answer is clearly that it
cannot.
It is axiomatic that the United States

government, including Congress,

56

is entirely a creature of the
Constitution. Its power and
authority have no other source. It
can act only in accordance with all
the limitations imposed by the
Constitution.

Reid v. Covert, 354 U.S. 1, 5-6 (1957)

(plurality opinion). For cases indicating

approval of Reid v. Covert, see, Northern
s on C a Vv

Pipeline Company, 458 U.S. 50, 67, n.17

(1982); ini 0a j Vv

Flores De Otero, 426 U.S. 572, 600 (1976);

Kinsella v. U.S., 361 U.S. 235 (1960).
In Reid, Congress had provided that a

military court could try the spouse of a
person in the military service for a crime
committed overseas; the precise issue was
whether the spouse could be tried for
murdering her soldier husband. The military
courts had tried the two cases and pronounced
sentence. The Supreme Court reversed.

When the Government reaches out to
punish a citizen who is abroad, the

Reid decision was

57

shield which the Bill of Rights and
other parts of the Constitution
provide should not be stripped away
just because he happens to be in
another land.

Reid v. Covert, 354 U.S. at 7. The
also rejected the view that the treaty power
could allow Congress to violate

Constitution. According to the Court:

The obvious and decisive answer to
this, of course, is that no
agreement with a foreign nation can
confer power on Congress, or any
other branch of government, which
is free from the restraints of the
Constitution.

354 U.S. at 16.

Reid is not, of course, an anomaly.

Court said:

The treaty power, as expressed in
the Constitution, is in terms
unlimited except by those
restraints which are found in that
instrument against the action of
the government or of its
departments, and those arising from
the nature of the government itself
and of that of the States. It

Court

the

The

presaged by De Geofroy v.
Riggs, 133 U.S. 258, 267 (1889) in which this

58

would not be contended that it
extends so far as to authorize what
the Constitution forbids, or a
change in the character of the
government or in that of one of the
States, or a cession of any portion
of the territory of the latter,
without its consent.

In Boos v. Berry, U.S. , 99 L.Ed.2da
333, 346 (1988), the Court this year quoted
Reid, supra in determining that Bill of
Rights protections could not be abrogated
within the continental United States:
it is well established that "no
agreement with a foreign nation can
confer power on the Congress, or on
any other branch of Government,

which is free from the restraints
of the Constitution."

The lesson of Reid, De Geofroy and Boos is
simple and straightforward. Congress cannot
through its legislation deprive an American
citizen of his constitutional rights whether
abroad or within the confines of the
continental United States.

Yet, that is exactly what may occur

here. The right to self-government is the

59
most basic right and encompasses the entire
Bill of Rights. The right to self-government
was, of course, an impetus to the very
formation of the Union. Indeed the
Declaration of Independence itself states:
We hold these truths to be
self-evident, that all men are
created equal, that they are
endowed by their creator with
certain inalienable rights, that
among these are life, liberty and

the pursuit of happiness.--That to
Vv

Declaration of Independence, July 4, 1776.
The Federalist Papers assured the
citizenry who were to adopt the Constitution
that self-government was the essence of what
the federal union was. Federalist No. 39,
written by James Madison, states in part:
We may define a republic to be, or
at least may bestow that name on, a
government which derives all its
powers directly or indirectly from
the great body of the people; and

is administered by persons holding
their offices during pleasure, for

60

a limited period, or during good

behavior

a _ government, that it be derived

from the great body of the society,
. ‘derabl i

or a favored class of it; otherwise

a handful

of tyrannical nobles,

exercising their oppressions by 4
delegation of their powers, might
aspire to the rank of republicans,
and claim for their government the
honorable title of republic.

Id. at 251 (emphasis added).

This Court likewise has stated that:

By the

Constitution, a

republican

form of government is guaranteed to
every State in the Union, and the

is the

right of the people to
choose their own officers for
governmental _ administration and

the; ; m1 3
the legislative power reposed in

represen

tative bodies, whose
legitimate acts may be said to be
those of the people themselves.

426

Duncan v. McCall, 139 U.S. 449, 461 (1891).
See also, Nevada v. Hall, 440 U.S. 410,
(1979): "In this nation each sovereign

governs only

governed."

with the

consent of

the

61
Until quite recently, it would have been
absurd to argue in a court of the United
States that a tribe had general civil
jurisdiction over a non-Indian. Such
jurisdiction had never been recognized and
indeed was antithetical to then existing

statutory and case law. It is only recently

' that tribal advocates and some lower courts

have taken very aggressive stances with
regard to such civil jurisdiction, arguing
essentially that recent congressional
pronouncements have legitimized the exercise
of such authority over non-Indians. Yet
enactments of the United States Congress
cannot deprive non-Indians of the right to
govern themselves.

When a court relies upon congressional
actions, including 18 U.S.C. § 1151 and
recent enactments intended to generally
strengthen tribal government, to discover a

new right of the tribes to exercise civil

62
jurisdiction over non-Indians and by so doing
deprives them of self-government, it has
ascribed to Congress an intent to act
unconstitutionally.°

The attempts of the tribes in this case
to deprive the local residents of their right
to self-government should be rejected.

This analysis does not disturb the
proper scope of tribal self-government. This
Court's opinions in Oliphant, Wheeler, and
Montana point the way. These cases, taken

together, stand for the proposition that a

rhe same result follows even if the
recent legislation is deprived of all of its
force, for the very existence of tribes in
law is dependent upon their recognition by
the federal government. See U.S. Const. Art.
3, °-§ 3s, cl. 3. Only the sustained
recognition by the federal government of the
tribes embodied in Volume 25 of the United
States Code, and elsewhere, permits the
argument that tribes have ousted the
non-Indians of their right to
self-government.

63
tribe retains the power of self-government
only to the extent necessary to protect
internal relations. The tribal advocates
have missed the point of the Montana
exceptions by declining to read the cases
which define their reach.
CONCLUSION

In a recent case the Eighth Circuit
Court of Appeals considered whether a tribe
has jurisdiction over nonmember Indians in
the criminal context. Chief Judge Lay, in
determining that the tribe did not have such
jurisdiction, stated

because the Petitioners, like the

non-Indian residents of the Devil's

Lake Reservation, cannot vote in

tribal elections, hold tribal

office, sit on tribal juries,

become members of the Devil's Lake

Sioux Tribe, nor Significantly

share in tribal disbursements

- « - the powers that may be

exercised over them are
appropriately limited.
Greywater v. Joshua, 846 F.2d 468, 493 (8th
Cir. 1988).

64

Judge Lay's analysis in Greywater, an
analysis based firmly upon the decisions of
this Court, points the way to a decision
here. Tribes retain power over their own
members with regard to internal relations of
the tribe. The tribe may not, however, go
beyond those limits to deprive non-Indians of
their own right to self-government, a_ right
for which the Revolution was fought, and a
right guaranteed by the United States
Constitution.

This is not, then, just a "zoning case"
because it squarely raises questions of power
and representative government. The State of

South Dakota urges this Court to reverse the

Judgments

Appeals.

65

of the Ninth Circuit Court of

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

Pierre, South Dakota 57501-5060
Telephone: (605) 773-3215
Counsel of Record

Jchn P. Guhin
Deputy Attorney General

i ad ee he ee

Excerpts from Tribal Employment Rights
Ordinance of the Oglala Sioux Tribe of the
Pine Ridge Reservation, Ordinance No. 84-08,

(as amended).

A-2

TABLE OF CONTENTS

CHAPTER 6--

SCOPE OF INDIAN PREFERENCE---~-~-
CHAPTER 11--

SANCTIONS ------3 330303 r rr rrr
CHAPTER 14--

ONSITE INSPECTIONS------------"-
CHAPTER 17--

ENFORCEMENT OF ORDERS@<-<----~-~-3-~

A-10

A-3
CHAPTER 6
SCOPE OF INDIAN PREFERENCE

All covered employers shall have grant
preference to resident Indian, without
regard to tribal affiliation, over
nonresident Indians in hiring,
promotion, training, and all other
elements of employment.

All covered employers shall grant
preference to Indians, whether resident
or nonresident, over non-Indians in
hiring, promotion, training, and all
other elements of employment.

All covered employers shall grant
preference to certified Indian owned
firms, whose principal places of
business are located within the exterior
boundaries of the Pine Ridge
Reservation, without regard to tribal
affiliation, over certified Indian-owned

firms whose principal places of business

A-4

are located without such boundaries, in
awarding contracts and subcontracts.

All covered employers shall grant
preference to certified Indian-owned
firms without regard to the location of
their respective principal places of
business, over non-certified firms with
some Indian Ownership, in awarding
contracts and subcontracts.

All covered employers shall give
pre‘erence to non-certified firms with
some Indian ownership, whose principal
places of business are located within
the exterior boundaries of the Pine
Ridge Reservation, without regard to
tribal affiliation, over non-certified
firms with some Indian ownership, whose
principal places of business are located
without such boundaries in awarding

contracts and subcontracts.

A-5
F. All covered employers shall grant
preference to non-certified firms with
some Indian ownership, without regard to
the location of their respective
principal places of business, over
non-Indian-owned firms, in awarding

contracts and subcontracts.

CHAPTER 11
SANCTIONS
Any one or combination of the following
sanctions shall be imposed by the Commission
upon its determination that a person has
failed to comply with any requirements set
forth in this Ordinance, in any and all
Supplementary ordinances, or in any and all
rules, regulations, and/or guidelines
promulgated by the TERO Commission.
A. Imposition of a civil monetary fine not
to exceed the amount of Five Hundred and

00/100 Dollars ($500.00) per violation.

A-6

Each day on which a person has been
determined to have been out of
compliance with any TERO requirements
shall constitute a separate violation.
Suspension or termination of the
person's current conduct of business
within the exterior boundaries of the
Pine Ridge Reservation, provided that
such person be granted a _ reasonable
period of time during which to remove
its equipment and property located on
the Reservation and to arrange with
another person for the assumption of any
of its outstanding contractual
obligations.

Prohibition of the persons engaging in
the future conduct of business within
the exterior boundaries of the Pine

Ridge Reservation for a definite or

indefinite period.

A-7
Prohibition of monetary or other
appropriate relief as and for damages to
compensate any person harmed as a result
of the noncompliance at issue.
Order the immediate termination by the
covered employer of any individual(s)
hired in contravention of any TERO
requirements relative to Indian
preference in the selection and hiring
of employees.
Order the immediate recession of any
contract (s) and/or subcontract (s)
entered into by the covered employer in
contravention of any TERO requirements
relative to

Indian preference in

contracting and subcontracting.

Order the employment, promotion, and
training by the covered employer of any
Indian individual(s) adversely affected

by the noncompliance with any TERO

A-8

requirements relative to Indian
preference in employment opportunities.
Order the award of a contract or
subcontract by a covered employer to any
qualified Indian-owned firm adversely
affected by the noncompliance with any
TERO requirements relative to Indian
preference in contracting and
subcontracting.

Order the award of back pay by the
covered employer to any Indian
individual(s) adversely affected by the
noncompliance with any TERO requirements
relative to Indian preference in
employment opportunities.

Order the covered employer to make such
changes in its policies, procedures,
and/or conduct as are deemed necessary
for the purpose of securing compliance

with any TERO requirements.

A-9
K. Such other or further relief and/or
sanctions as the Commission should deem

just and proper.

CHAPTER 14
ON-SITE INSPECTIONS

The TERO Director, the staff members
within the TERO Office, and the members of
the TERO Commission shall have the right to
conduct periodic on-site inspections at any
time during the actual operation of the
business of any covered employer, in order to
monitor compliance by such employer with the
requirements set forth with any and all
rules, regulations, and/or guidelines
promulgated by the TERO Commission, and with
any order issued by the Commission. During
the period of any such on-site inspection,
such TERO personnel and officials shall have
the right to speak with any contractor,

subcontractor, or employee working on the

A-10
site, so long as'- such conversation does not
interfere with the operation of the business.
In addition, such TERO personnel and
officials shall have the right to inspect any
and all records and other written materials
maintained on-site by a covered employer,
which cannot be deemed confidential for valid
business purposes. Any and all such written
materials so inspected shall be subject to
the requirements relative to strict
confidentiality, as prescribed by and set

forth in Chapter 13 of this Ordinance.

CHAPTER 17
ENFORCEMENT OF ORDERS
The Police officers of the Oglala Sioux
Tribe are hereby expressly authorized and
directed to take whatever reasonable legal
enforcement action is necessary to fully
enforce any andall, cease and desist and

related order as are, from time to time,

e——

A-11
properly issued by the Tribal Employment
Rights Commission. Such an order issued by
the Commission shall not require an

accompanying or affirming judicial order, so

as to render the order legally enforceable.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0374%3A14. Public record. Not legal advice.