Amicus Curiae Brief — Brendale v. Confederated Tribes and Bands of Yakima Nation
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Nos. 87-1622, 87-1697, and 87-1711
IN THE ICLED
Supreme Court of the United Sfateger 3 1900
OCTOBER TERM, 1988 JOSEPH F. SPANIOL, JR.
PHILIP BRENDALE,
" Petitioner,
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 FOR MENDOCINO COUNTY, CALIFORNIA;
BECKER COUNTY AND MAHNOMEN COUNTY,
MINNESOTA; LAKE COUNTY, ROOSEVELT COUNTY
AND SANDERS COUNTY, MONTANA; THURSTON
COUNTY, NEBRASKA; MOUNTRAIL COUNTY, MCLEAN
COUNTY AND WARD COUNTY, NORTH DAKOTA; TODD
COUNTY AND ZIEBACH COUNTY, SOUTH DAKOTA;
DUCHESNE COUNTY AND UINTAH COUNTY, UTAH;
FREMONT COUNTY, WYOMING; AND WASHINGTON
STATE ASSOCIATION OF COUNTIES, WASHINGTON,
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
(Counsel Listed on Inside Cover)
WILSON - Eras PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
ew
“=z
Tom D. TOBIN *
SUSAN W. PAHLKE
ALVIN PAHLKE
TOBIN LAW OFFICES, P.C.
422 Main Street
Winner, South Dakota 57580
(605) 842-2500
* Counsel of Record
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ..............................-.-
SUMMARY OF ARGUMENT ......0222..2.....eeeeeeeeeeeeeeeeees
lc dieietchatanesnatiesceesienintseepciancenncnnenass
I. THIS COURT HAS ESTABLISHED CLEAR
PRINCIPLES FOR DECIDING QUESTIONS
OF TRIBAL CIVIL JURISDICTION OVER
NON-MEMBERS ON FEE LANDS ...................
II.
A.
In Oliphant This Court Set Forth Precedent
And Presumptions That Are Controlling
a TS Te
In Montana This Court Reaffirmed The Prec-
edent And Further Delineated The Princi-
ples That Are Controlling Here .......................
ER ER RRR RRR Ree eee
Nothing In National Farmers Union Or Iowa
Mutual Detracts From The Clear Principles
Established In Oliphant And Montane ..........
1. National Farmers Union ...........................
es
The Treaty Arguments Of The Yakima Tribe
Were Correctly Rejected In Both Oliphant
ES
THE LEGISLATIVE HISTORY OF THE GEN-
ERAL ALLOTMENT ACT CONFIRMS CON-
GRESS NEVER INTENDED INDIAN TRIBES
TO HAVE CIVIL JURISDICTION OVER
NON-MEMBERS ON FEE LANDS ...................
10
11
11
ae
19
19
22
24
25
ii
TABLE OF CONTENTS—(Continued)
CONCLUSION ......-2.----------ecceecsseesesneenecssnenessennnsennnssseesnnenes
APPENDICES:
A. Excerpt from S. Rep. No. 2738, 58th Cong., 3d
Sess. (1904) ..........-cc-ece--ce-enseeesnesereeerensensnsncnsneneee
B. Excerpt from the Legislative History of the Gen-
eral Allotment Act submitted in the Brief for
Amici Curiae State of Minnesota et al., at 17-22,
in Montana v. United States, 450 U.S. 544
CDI eececcneccnscssctasacntenornnsensensntemenesetnctmencimmmoanscconees
la
iii
TABLE OF AUTHORITIES
CASES Page
Arizona v. California, 373 U.S. 546 (1963) ............. 14
Buster, et al. v. Wright, et al., 1385 F.2d 947 (8th
Cir. 1905), app. dismissed, 203 U.S. 599 (1906) .. 22
Confederated Tribes and Bands of the Yakima In-
dian Nation v. Whiteside, 828 F.2d 529 (1987) ....passim
DeCoteau v. District County Court, 420 U.S. 425
ER ey RS TARTAR Se Se Ne OD Ok 29
Donnelly v. United States, 228 U.S. 243 (1913)...... 15
Draper v. United States, 164 U.S. 240 (1896)........ 13, 30
Feliz v. Patrick, 145 U.S. 317 (1892) .............000002.... 15
Fisher v. District Court, 424 U.S. 382 (1976) ...14, 18, 19,
23, 24
Fletcher v. Peck, 6 Cranch 87 (1810) .......0...0000000..... 9
Harrison v. Laveen, 67 Ariz. 337, 196 Pac.2d 456
TEATS 8 SLE ee OO 15
Holly v. Totus, No. 85-4436, cert. denied, 94 L.Ed.
ee MD haces chchihcabinislhidiicn hiibeiailiealeclialibtasbistdibantisitadinhense 27
Iowa Mutual Insurance Co. v. LaPlante, 107 S.Ct.
gg ERE ener ee. er Oe ee 20, 22, 23
Johnson v. McIntosh, 8 Wheat. 543 (1823) ............. $
The Kansas Indians, 5 Wall. 737 (1866) _................. 16, 17
Knight v. Shoshone and Arapahoe Indian Tribes,
fT EL ae ae nets ae 3
Langford v. Monteith, 102 U.S. 145 (1880) ............. 11
Maricopa and P. Railroad Co. v. Arizona, 156 U.S.
RE SE a NR a 17
Mattz v. Arnett, 412 U.S. 481 (1978) -.....000000.0.00. 29
McClanahan v. Arizona State Tax Comm’n, 411
8 ES SR AC Reet. eer se Ee 12, 15, 18
Mescalero Apache Tribe v. Jones, 411 U.S. 145
RES ae eee ae ce ee 12
Montana v. United States, 450 U.S. 544 (1981)......passim
Montana Catholic Missions v. Missoula County, 200
OF FR eee 14, 16, 17, 18, 19
Morris v. Hitchcock, 194 U.S. 384 (1904) -....0000...... 22
National Farmers Union Insurance Cos. v. Crow
Tribe of Indians et al., 471 U.S. 845 (1985).....6, 19, 20,
21, 22
iv
TABLE OF AUTHORITIES—Continued
Page
New Mexico v. Mescalero Tribe, 462 U.S. 324
GD nrc sccnionceinnentnsiaiitaliiritaneccneennisnssnsbeneiniiacitine 14
New York ex rel. Ray v. Martin, 326 U.S. 496
CIID. ccencstcatnnsisiinsilesiitaiiisceniananiiniieiipiaiitiaiaadinaeiiiiinaicntitin 11, 15
Northern Pacific Railroad Co. v. United States, 227
Te | Ce cineca tii telitsccasisicsiateininliiinecisincisittintaiensiin 27
Oliphant v. Schlie, 544 F.2d 1007 (1976) ................ 24
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
CBD Si siisciicasctininciiadantiiesthiidialninitaiatasindlaaiccditdaed passim
Organized Village of Kake v. Egan, 369 U.S. 60
COD csi iniintonsciinintanipisdesiesinlinstnincasiniaiaitisiatssntinissitahen 13, 30
Puyallup Tribe v. Washington Game Depart., 433
I, BR CU cccieccedisinthiiitbiscncttindiiittllaies 12, 18, 25, 26, 29
Rosebud Sioux Tribe v. Kneip, et al., 430 U.S. 584
COTTE. ccssisssiniticrnsienaiigigsieiisitivieaainiieeaaiaianaaiitunianibiitiianiaiilitirees 29
Solem v. Bartlett, 465 U.S. 463 (1984) ~................... 3, 29
Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).. 11
Thomas v. Gay, 169 U.S. 264 (1898) -.............. 14, 17, 18, 19
United States v. Candelaria, 271 U.S. 432 (1926) .... 15
United States v. Kagama, 118 U.S. 375 (1886)...... 12
United States v. Mitchell, 445 U.S. 535 (1980) ...... 29
United States v. Mitchell, 463 U.S. 206 (1983) 29
United States v. Montana, 604 F.2d 1162 (9th Cir.
DOT aihdrtninccnsinishecilaessdinninenaitchtigthlbacliltselinetaniatsinnn 28
United States v. Payne, 264 U.S. 446 (1924) ........... 27
United States v. Pelican, 232 U.S. 442 (1914)......... 27
United States v. Quiver, 241 U.S. 602 (1916) ........... 11
United States v. Rickert, 188 U.S. 432 (1903)........ 17
United States v. Rogers, 4 How. 567 (1846)............ 9
United States v. Solomon, 753 F.2d 1522 (1985)... 27
United States v. Sutton, 215 U.S. 200 (1909) .......... 27
United States v. Wheeler, 435 U.S. 313 (1978) ........ 12
United States v. Winans, 198 U.S. 371 (1905) ........ 27
Utah and Northern Railway Company v. Fisher,
i Bf 3 RRC mencnre eer 15, 17
Ute Indian Tribe v. State of Utah, 773 F.2d 1087
(10th Cir. 1985), cert. denied, 107 U.S. 596
CTI ccctcesecene-nenctenisneessineieaiarnsaveenmnseestsmenreeeseetteseeews 2,3
Vv
TABLE OF AUTHORITIES—Continued
Page
Wagoner v. Evans, 170 U.S. 588 (1898) 17, 18
Washington v. Confederated Colville Tribes, 447
U.S. 134 (1980) .......... laine cada iahidinaaddhcctsiaeas 18, 19, 23, 24, 30
Washington v. Yakima Nation, 439 U.S. 463
SREP be SOREN SRS oe ee 27
Williams v. Lee, 358 U.S. 217 (1959) ....... 12, 14, 15, 18, 19
Williams v. United States, 327 U.S. 711 (1946) ...... 15
Yakima v. Whiteside, 828 F.2d 529 (9th Cir.
RIE 95S CREE RS Ee TE passim
STATUTES AND TREATIES
Fy Ny Pe I access ccececncrvcinccecsucseiestenenece 16
33 Stat. 595
Treaty with the Yakimas, 1855, 12 Stat. 951... 7
General Allotment Act of 1887, 24 Stat. 388, as
amended, 25 U.S.C. § 331 et seq. .......... 26, 27, 28, 29, 30
i I ac 26
1934 Wheeler Howard Act, 48 Stat. 987, 25 U.S.C.
SS a ae 16
CONGRESSIONAL REFERENCES
S. Rep. No. 2738, 58th Cong., 3d Sess. 1 (1904) ........ 27
OTHER AUTHORITIES
2 Op. Atty. Gen. 698 (1884)....................... oo. 10, 21
FS 10, 21
F. Cohen, Handbook of Federal Indian Law (1982
Oe atch ean cacecnienenienniccietitantisaemnanmsnnddcmeine 22
_ Pfaller, James McLaughlin, The Man with the In-
5 FRR Scie ETRE 27
Martone, American Indian Tribal Self-Government
in the Federal System: Inherent Right of Con-
gressional License? 51 Notre Dame Law 600
EA EI a eR AEE ORR 1 aoe 24
INTEREST OF AMICI CURIAE
On August 9, 1988, at the annual meeting of the Na-
tional Association of Counties, a Resolution was passed
in recognition of the importance of this case as it relates
directly to county governments. That Resolution provides
in pertinent part:
WHEREAS, in 1985 the Public Lands Steering
committee adopted a resolution in recognition of the
complicated relationships between tribal and county
governments caused by the unique legal status of
Native Americans under federal law, treaties and
court decisions; and
WHEREAS, this same resolution also recognized the
need for individual counties to join together to ad-
dress issues of mutual concern in order to conserve
scarce resources and increase their effectiveness; and
WHEREAS, the United States Supreme Court re-
cently agreed to decide the case of the Yakima In-
dian Nation, which case involves tribal jurisdiction
over non-members; and
WHEREAS, the Attorneys General of Arizona, Ne-
vada, New Mexico, South Dakota, Utah, Washington,
and Wyoming have stated that the precedent in this
case, if not reversed, will result in even more claims
of preemption by tribal governments of state and
local governmental powers over non members, not
just in the area of zoning, but in broader uses such
as environmental controls, taxation, and general
business regulation, and...
WHEREAS, individual units of local government
cannot effectively be heard in an effective manner
due to an insufficiency of local resources; now,
therefore
BE IT RESOLVED, that the Public Lands Steering
Committee request individual units of local govern-
ment collectively support and fund a joint effort in
the support, briefing, argument and related aspects
of this case before the United States Supreme Court,
and
2
BE IT RESOLVED, that the Public Lands Steering
Committee commends those Attorneys General that
have filed in support of the petitioner and further
urges those Attorneys General to devote additional
staff, time, and resources in support of Yakima
County.
The concern that prompted the Resolution can be simply
stated. Tribal governments across the United States
have enacted hundreds of ordinances claiming varying
degrees of civil jurisdiction over non-Indians on fee
lands. Almost without exception, these tribal ordinances
are premised on some aspect of the political integrity,
economic security or the health or general welfare of
tribal government. In effect, tribal advocates have
pushed a misreading of this Court’s Montana decision
beyond belief. To date, these tribal actions promise the
most extensive litigation ever experienced by these units
of local government—at a time when county govern-
ments can ill afford to squander scarce resources on
senseless litigation. There is no question that the primary
impact of shifts in federal Indian policy, from whatever
source, falls squarely on units of local government, and
this problem is pronounced.
The counties joining in this Brief all contain areas
that were at one time established as Indian reservations.
They are representative of many other counties similarly
situated throughout the United States. The history of
each area is, of course, as varied and diverse as federal
Indian policy—with one exception. Historically, no tribal
court here has ever been recognized by anyone to have
tribal civil jurisdiction over non-Indians or fee lands.
Historically, such a procedure would have uniformly
been viewed as novel and unusual, and certainly incon-
sistent with prior practice and experience.
To be sure, the extent of the experience of each amici
with Indian reservations reflects radically differing fact
situations. For example, it was not until 1985, that the
Tenth Circuit Court of Appeals resurrected the boun-
3
daries of the original Uncompahgre Reservation and the
original U‘ntah Reservation so as to encompass most of
Duchesne County and Uintah County, Utah. Ute In
dian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir.
1985), cert. denied, 107 U.S. 596 (Dec. 1, 1986). Before
that time, the lands constituting the Ute Tribe’s Reser-
vation were considered to be only those lands held in
trust by the federal government (more than 1,000,000
acres). Now the second largest Indian reservation in
the United States, the entire region is 90% non-Indian
and 3,000,000 acres of the territory are non-Indian
owned. Although the United States agrees that the
Uncompahgre Reservation ceased to exist a century ago,
the disestablishment issue is still in litigation in state
court. The Tribal Law and Order Code contains more
than 600 sections in 162 pages of closely printed type
and asserts detailed authority over all persons living or
traveling within the boundaries of its Reservation, where-
ever those boundaries may be. The Ute Tribe has the
power, according to its Code, to exclude and remove
“persons” from the Reservation who threaten “the peace,
health, safety, morals and general welfare of the Tribe,”
if necessary even without a hearing before the Tribal
Court (§§ 3-1-3, 3-1-4).
In 1982, Fremont County, Wyoming, was informed
that the power to control use of non-Indian owned land
within the Wind River Reservation simply “flows from
the inherent sovereign right” of Indian tribes. Knight
v. Shoshone and Arapaho Indian Tribes, 670 F.2d 900,
903 (1982). On a record that was clearly deficient, this
pronouncement was received with uniform disbelief. Jd.
Over two-thirds of the population in Fremont County
within the original reservation is non-Indian and 83%
of the land is non-Indian owned.
Ziebach County, South Dakota, entirely within the
Cheyenne River Indian Reservation as a result of this
Court’s opinion in Solem v. Bartlett, 465 U.S. 463
(1984), has since found out that even tribal constitu-
4
tions do not necessarily set the limits of this new tribal
civil jurisdiction over non-Indians. The Cheyenne River
Sioux Tribe recently instituted several measures that
assert tribal civil jurisdiction over non-Indians on fee
lands, in spite of an express prohibition in their tribal
constitution.
In Mendocino County, California, the resurrection of a
rancheria with “Indian Country” status has been judi-
cially recognized, primarily as a result of a recent stip-
ulation by an Assistant United States Attorney. The
governing board of the rancheria immediately imposed
a zoning moratorium on the non-member residents of
the area on fee lands, in the first of what promises to
become a more typical situation for counties in the State
of California.
Other amici share the distinction of having faced
sporadic litigation for years. The original 1867 White
Earth Reservation encompassed parts of Becker County
and Mahnomen County, where a substantial majority of
residents are non-Indians and 90% of the land is non-
Indian owned. In the last two decades these counties have
been defendants in numerous lawsuits including tribal
claims of exclusive hunting and fishing jurisdiction, land
claims, boundary claims, and related issues. The attempts
of the counties to serve their residents and resolve even
such mundane matters as rural garbage disposal routinely
meet with tribal resistance.
And the list goes on. Lake County and Sanders County,
Montana, and the Flathead Reservation; Roosevelt
County, Montana, and the Fort Peck Reservation;
Thurston County, Nebraska, and the Omaha and Winne-
bago Reservations; Mountrail County, McLean County
and Ward County, North Dakota, and the Fort Berthold
Reservation; and Todd County, South Dakota, and the
Rosebud Reservation—litigation on reservation bounda-
ries, litigation on land claims, and the list goes on. Co-
operative agreements have resolved some of the legitimate
5
questions and in the future, similar agreements can also
hopefully serve this purpose. But the addition of tribal
zoning and tribal taxation and so forth, to this list, serves
no legitimate purpose.
Significantly, in most of these Indian reservations, and
others, non-Indian population and non-Indian fee owner-
ship figures at least meet or exceed those of the Indian
tribe. County government in these same areas is not
some néw and novel experience. It has been there for
decades pursuant to congressional policy. That policy
never contemplated Indian tribes with civil jurisdiction
over non-Indians on fee lands. This Court in this ease
should restate Montana and set that policy forth in no
uncertain terms. Amici recognize the need for coopera-
tive effort to facilitate legitimate federal policy on In-
dian reservations, but no one needs to have this new liti-
gation dominate the agenda of local government for the
last decade of the twentieth century.
SUMMARY OF ARGUMENT
The Court of Appeals was quick to criticize this Court
four times in the opinion below. According to the Court
of Appeals, the recent “tests” formulated by this Court
to resolve the issue here (tribal civil jurisdiction over
non-Indians on fee lands) are “without apparent con-
sistency”, “disregarded” by the Court itself, and rife with
“conflicting language”. Yakima Indian Nation v. White-
side, 828 F.2d 529 at 533, 534 n.1 (9th Cir. 1987).
Amici do not agree. The controlling law in this case
is clear.
In Oliphant and Montana this Court reiterates basic
principles. And had the Court of Appeals paid more
than mere lip service to the substance of those opinions,
these cases would not be here.
Amici recognize that Oliphant and Montana do not
automatically preclude Indian tribes from exercising civil
jurisdiction over non-members on fee land in every imag-
6
inable situation. Detailed study of relevant statutes, Ex-
ecutive Branch policies, treaties, administrative and ju-
dicial decisions, as well as the sovereign aspects of the
issue, are undeniably an appropriate endeavor for all
courts presented with the question. National Farmers
Union Insurance Cos. v. Crow Tribe of Indians et al.,
471 U.S. 845, 855-56 (1985). But once revisited, the
carefully delineated principles set forth in Oliphant and
Montana, we submit, authoritatively resolve the issue.
Simpiy stated, Oliphant and Montana attest that absent
affirmative delegation by Congress, Indian tribes do not
have civil jurisdiction over non-members on fee lands.
Such a power is inconsistent with their dependent status,
and can not survive without express congressional dele-
gation. Because the Yakima Nation cannot demonstrate
this affirmative or express congressional delegation, the
analysis of the Court of Appeals is as fundamentally
flawed here as it was in the Court of Appeals’ decisions
in Oliphant and V ontana.
Nor is there a need for this Court to depart from the
contours of the doctrine this Court set forth in Oliphant
and Montana. In this instance, as in other areas of
federal Indian law, a coherent doctrine by which to meas-
ure, with some predictability, the scope of tribal juris-
diction over non-Indians is sorely needed. Oliphant and
Montana have established that doctrine. All that remains
to be done is to underscore and restate this well defined
body of principles. Principles are essential here, to end
the case by case tribal civil jurisdiction litigation which
otherwise promises to plague this area of the law for
years.
To be sure, the most sophisticated arguments will be
submitted to advance the tribal cause. In Oliphant, the
Brief for the United States stands as a work of art.
And one can also expect a plethora of policy considera-
tions in support of the tribal position. But the conclusion
7
of this Court in Oliphant and Montana,' based on estab-
lished precedent and principles, should lead this Court to
the same result here—and the policy considerations are
still for Congress to weigh.
ARGUMENT
(Mr. Justice Rehnquist] “QUESTION: Mr. Erns-
toff, is there any way of distinguishing your case
from a civil jurisdiction of the Tribe so that the
Court could, in a principled way, say there was crim-
inal jurisdiction here but not civil jurisdiction?
MR. ERNSTOFF: That is a very interesting ques-
tion, Your Honor. I really do not know that they
can, to be honest with you, I have been trying to do
_ that because I thought it would be of benefit to me
to come in with the most narrow case that I can
possibly come in with.
To be intellectually honest, I do not think you
really can and I do not think that you should.”
Tr. of Oral Argument, at 53-54, Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191 (1978).
I. THIS COURT HAS ESTABLISHED CLEAR PRIN-
CIPLES FOR DECIDING QUESTIONS OF TRIBAL
CIVIL JURISDICTION OVER NON-MEMBERS ON
FEE LANDS.
A. In Oliphant This Court Set Forth Precedent And
Presumptions That Are Controlling Here.
1. Precedent.
The central principle in Oliphant was succinctly stated;
“An examination of our earlier precedents satisfies us
that, even ignoring treaty provisions and congressional
policy, Indians do not have criminal jurisdiction over
non-Indians absent affirmative delegation of such power
1“T agree with the Court‘s resolution of the question of the
power of the Tribe to regulate non-Indian fishing and hunting on
reservation land owned in fee by non-members of the Tribe.”
Montana, 450 U.S. at 581 n.18 (Blackmun, J. dissenting in part;
Brennan and Marshall, JJ., joining).
8
by Congress.” Oliphant v. Suquamish Indian Tribe, 435
U.S. 191, 208 (1978) (emphasis added). In terms of
civil jurisdiction these precedents are equally persuasive
here, and the absense of affirmative delegation by Con-
gress is therefore similarly controlling. Oliphant re-
peatedly stressed that the Suquamish Tribe did not con-
tend that its jurisdiction stemmed from affirmative con-
gressional authority or treaty provisions. /d. at 195-96,
198. The claim of the Yakimas suffers from the same
fundamental defect. Yakima, 828 F.2d at 533. In both
instances the Court of Appeals accepted the tribe’s
positior In Oliphant, tribal criminal jurisdiction over
non-Indians, according to the Court of Appeals, was sim-
ply a sine qua non of tribal sovereignty. 544 F.2d at
1009, 425 U.S. at 196. Here, the Court of Appeals
reasoned that tribal civil jurisdiction was a sine qua
non of tribal sovereignty as it relates to the health,
safety, and welfare of the Yakima Tribe. Yakima, 828
F.2d at 534. The presumption of the Court of Appeals
is the same in both instances, and it is as fundamentally
flawed here as it was in Oliphant.
A recognition of a retained sovereignty that would
permit civil jurisdiction over non-Indian citizens on fee
lands is inconsistent with the dependent tribal status and
ignores a uniform tribal “forfeiture of full sovereignty
in return for the proteetion of the United States”. Oli-
phant, 435 U.S. at 211. The precedents and analysis in
Oliphant are not limited to criminal jurisdiction, but are
equally applicable here. In isolation, the Treaty with the
Yakimas, 12 Stat. 951, 2 Kapplers 524 (1855) is as silent
on tribal civil jurisdiction over non-Indians, as the Treaty
of Point Elliot construed in Oliphant was on criminal
jurisdiction. 435 U.S. at 206.
The addition of historical perspective casts even fur-
ther, substantial doubt on the existence of such jurisdic-
tion. 435 U.S. at 206. In Article VIII, for example, the
Yakimas also acknowledge their “dependence on the gov-
ernment of the United States”. Yakima Treaty, 12 Stat.
951, 2 Kapplers 524 (1855), see Oliphant, 435 U.S. at
9
207 for a similar acknowledgement. And as in Mr. Chief
Justice Marshall’s explanation cited in Oliphant, such an
acknowledgement is not a mere abstract recognition of
the United States’ sovereignty, but rather is a necessary
acknowledgement of dependence on the United States.
It is as significant in terms of the lack of tribal civil
jurisdiction over non-Indians as it is in terms of the lack
of tribal criminal jurisdiction. Jd. at 206-07.
Equally applicable are the pronouncements in United
States v. Rogers, 4 How. 567, 571 (1846), quoted in
Oliphant, that Indian reservations are “a part of the
territory of the United States”; that Indian tribes “hold
and occupy [the reservations] with the assent of the
United States, and under their authority”. Rogers, 4
How. at 572; Oliphant, 435 U.S. at 208-209. As Oliphant
noted, “Upon incorporation into the territory of the
United States, the Indian tribes thereby, come under the
territorial sovereignty of the United States and their
exercise of separate power is constrained so as not to
conflict with the interests of this overriding sovereignty.”
Id. at 209. Applicable, also, is Johnson v. McIntosh, 8
Wheat. 543 (1823), which states “(t|heir rights to com-
plete sovereignty, as independent nations, [are] neces-
sarily diminished.” 8 Wheat. at 574. Oliphant, 435 U.S.
at 209. Limitations inherent in such a situation, as ex-
pressly set forth in Fletcher v. Peck, 6 Cranch 87 (1810),
are similarly inclusive.
[T]he restrictions upon the right of soil in the In-
dians, amount . . . to an exclusion of all competitors
to the United States from their markets; and the
limitation upon their sovereignty amounts to the
right of governing every person within their limits
except themselves.”
Fletcher v. Peck, 6 Cranch at 147; Oliphant, 435 U.S.
at 209 (emphasis as in original).
And certainly the manifestations of the United States
from the formation of the Union and the adoption of the
Bill of Rights, that its citizens be protected by the United
10
States from unwarranted intrusions on their personal lib-
erty, noted in Oliphant, are of no less importance, when
viewed in the context of tribal civil jurisdiction. Jd. at
210. In sum, these are the “precedents” this Court relied
on in Oliphant. And, in this context, tribal civil jurisdic-
tion is indistinguishable from tribal criminal jurisdic-
tion in all significant respects.
2. Presumptions.
Admittedly, “considerable weight” was also given in
Oliphant to the “commonly shared presumption” of Con-
gress, the Executive Branch, and lower federal courts
that “tribal courts did not have the power to try non-
Indians.” Jd. at 206. But in most instances, the docu-
mentation cited in support of this presumption, under-
mines the existence of tribal civil jurisdiction over non-
Indians as well.
The effort by tribal courts to exercise civil rather than
criminal jurisdiction over non-Indians, is also a rela-
tively new phenomenon. 7d. at 197. Until recently, for-
mal tribal court systems did not really exist for civil or
criminal purposes. 7d. at 197. The history of Indian
treaties in the United States that is consistent with the
principle that Indian tribes may not assume criminal ju-
risdiction over non-Indians without the permission of
Congress, is equally persuasive on the question of civil
jurisdiction. Id. at 197-98 n. 8.
It is true that historically there has been more occa-
sion to address the question of federal criminal jurisdic-
tion over non-Indians, but nothing in the response even
arguably adds anything to the tribe’s claim for civil ju-
risdiction. To the contrary, in one of the two Opinions
of the United States Attorney General correctly cited for
the lack of criminal jurisdiction, tribal civil jurisdiction
is actually the issue, and it was specifically limited to
adopted non-Indian members of the trfbe. See 2 Op. Atty.
Gen. 693 (1834); 7 Op. Atty. Gen. 174 (1855). Id. at
199. Even more importantly, there is no evidence in any
11
of this federal criminal documentation that the partici-
pants did not also share the presumption that the tribes
did not have civil jurisdiction over non-Indians, absent
congressional statute or treaty provision to that effect.
Id. at 199.
For this reason, we agree with the “intellectual hon-
esty” supra, professed by counsel for the Yakima Tribe
in Oliphant. Tr. of Oral Argument, at 55, Oliphant, 435
U.S. 191. There was no principled way for the Court in
Oliphant to recognize that Indian tribes have inherent
criminal jurisdiction over non-Indians, and not also rec-
ognize equally extensive inherent tribal civil jurisdiction.
Tr. of Oral Argument, at 54, Oliphant, 435 U.S. 191.
More importantly now, in light of Oliphant, it should
follow, we submit, that the same principles that pre-
cluded a recognition of inherent tribal criminal jurisdic-
tion, also preclude a recognition of inherent tribal civil
jurisdiction. Surely nothing in Montana detracts from this
position:
Though Oliphant only determined inherent tribal
authority in criminai matters, the principles on
which it relied support the general proposition that
the inherent sovereign powers of an Indian tribe
do not extend to the activities of nonmembers of the
tribe.”
Montana, 450 U.S. at 565 (emphasis added).
B. In Montana This Court Reaffirmed The Precedent
And Further Delineated The Principles That Are
Controlling Here.
1. Precedent.
Montana, importantly reaffirmed the basic premise of
Oliphant, that tribal power inconsistent with dependent
status cannot survive “without express congressional del-
egation”. Montana v. United States, 450 U.S. 544, 564
2 Also, see generally Surplus Trading Co. v. Cook, 281 U.S. 647, 651
(1930); Langford v. Monteith, 102 U.S. 145, 147 (1880); United
States v. Quiver, 241 U.S. 602, 605-06 (1916); New York ez rel.
Ray v. Martin, 326 U.S. 496, 501 (1946).
12
(1981).* Additionally, the Court parenthetically noted
that subsequent to Oliphant, United States v. Wheeler,
435 U.S. 313 (1978), most recently reviewed principles
of inherent sovereignty, and distinguished between those
inherent powers retained by the tribes and those divested:
“The areas in which such implicit divestiture of sov-
ereignty has been held to have occurred are those
involving the relations between an Indian tribe and
nonmembers of the tribe... .
These limitations rest on the fact that the de
pendent status of Indian tribes within our territorial
jurisdiction is necessarily inconsistent with their
freedom independently to determine their external
relations. But the powers of self-government, in-
cluding the power to prescribe and enforce internal
criminal laws, are of a different type. They involve
oniy the relations among members of a tribe. Thus,
they are not such powers as would necessarily be lost
by virtue of a tribe’s dependent status.” Jbid. (em-
phasis added)
Montana, 450 U.S. at 564 quoting Wheeler (emphasis as
in original, except necessarily) .
In addition to Wheeler, Montana further supported a
rejection of sweeping treaty based arguments that
“clashe[d] with subsequent history of the reservation”
with the discussion of this point in Puyallup III, as well
as detailed overview of the purposes and philosophy of the
General Allotment Act. Puyallup Tribe v. Washington
Game Dept., 433 U.S. 165 (1977).* See also Montana,
3 See Mescalero Apache Tribe v. Jones et al., 411 U.S. 145, 148
(1973); Williams v. Lee, 358 U.S. 217, 219-20 (1959); United
States v. Kagama, 118 U.S. 375, 381-82 (1886); McClanahan v.
Arizona State Tax Comm’n, 411 U.S. 164, 171 (1973), as cited in
Montana, 450 U.S. at 564.
*In Puyallup III, this Court, when confronted with a treaty
provision similar to that involved here regarding “exclusive” use,
found that because tribal lands had been alienated pursuant to
congressional enactment “[nleither the Tribe nor its members
continue to hold Puyallup River fishing grounds for their exclusive
use... .” Id. at 174. The significance of Puyallup III with regard
13
450 U.S. at 559-60 nn. 8-9, 561, citing Organized Village
of Kake v. Egan, 369 U.S. 60, 72 (1962), and Draper v.
United States, 164 U.S. 240 (1896), as well as contem-
porary congressional and other documentation.
The Court concluded in Montana by carefully extend-
ing the rule in Oliphant as a general proposition, and
then noted the “consensual” exception, clarified by ex-
press citations, and the “threatens or direct effect” ex-
ception at issue here, again clarified by express citations.
Id. at 565-66. Neither exception fit the circumstances
presented, and the Court so stated. Jd. at 566.
Here, the Court of Appeals, we submit, ignored the
rule in Oliphant, and ignored Montana’s extension of
Oliphant as a general proposition. In its stead, the Court
of Appeals seized upon the “threatens or direct effect”
exception, and without any reference to the accompanying
express citations carefully set forth by the Montana
Court, the Court of Appeals then proceeded to ignore
even the scope and the essence of that exception. As a
result, the Court of Appeals fashioned its own “tribal in-
terest” test that at least arguably encompasses tribal reg-
ulation of any reservation activity by non-Indians. Yak-
ima, 828 F.2d at 535. The Court of Appeals “tribal inter-
est” test, moreover, presumes a retained inherent tribal
sovereignty rejected by this Court in both Oliphant and
Montana, and promises a virtually unending and limitless
case-by-case exploration of the vistas of this novel “ex-
ception”. This, we submit, was the fundamental error of
the Court of Appeals.
to the present case is that it unmistakably established that “ex-
clusive” rights created by treaty—the basis asserted by the Tribe
here—are effectively extinguished with the alienation of the lands
to non-Indians. Montana expressly recognized and confirmed
Puyallup III in this respect. Montana, 450 U.S. 560-61. Therefore,
there is no “exclusive” right existent under the 1855 Treaty which
would authorize the Yakima Tribe to regulate non-Indians on non-
Indian owned land.
14
2. The Exception.®
The Montana “threatened or direct effect” exception to
the general proposition that “the inherent sovereign
powers of an Indian tribe do not extend to the activities
of non-members of the tribe”, is straightforward and
fundamental. The Montana Court directed attention to
specific portions of four separate cases that analytically
delineate the substance of this exception.
See Fisher v. District Court, 424 U.S. 382, 386;
Williams v. Lee, supra, at 220; Montana Catholic
Missions v. Missoula County, 200 U.S. 118, 128-129;
Thomas v. Gay, 169 U.S. 264, 273."° °
450 U.S. at 566. The Court of Appeals either refused or
neglected to even cite, much less discuss, any of these
four decisions or the principles for which they were
cited. The exception thereby supplanted the rule.
a) “Fisher v. District Court, 424 U.S. 382, 386
(1976).” Fisher involved an adoption dispute arising on
the reservation among reservation Indians. As the Tribal
Court stated, the parties “are each and all members of
the Northern Cheyenne Tribe and each and all reside
within the exterior boundaries of the Northern Cheyenne
Indian Reservation.” 424 U.S. at 384 n. 5. In such a
situation, federal policy “preempted” the state Court’s
jurisdiction. 424 U.S. at 390. Exclusive jurisdiction was
in the tribal court.
Fisher, 424 U.S. at 386, cites Williams v. Lee, 358
U.S. 217, 220 (1959) and notes that “since this litiga-
tion involves only Indians, at least the same standard
must be met before the state courts may exercise juris-
diction”, further citing Mescalero Apache Tribe v. Jones,
5 The Court of Appeals recognized that Montana set forth two
exceptions; the “consensual” exception is not involved here. Yak-
ima, 828 F.2d at 533-34.
6 “As a corollary, this Court has held that Indian tribes retain
rights to river waters necessary to make their reservations livable.
Arizona v. California, 373 U.S. 546, 599.” Montana, 450 U.S. at
566 n.15.
15
411 U.S. 145, 148 (1973) and McClanahan v. Arizona
State Tax Comm’n, 411 U.S. 164, 168-173, 179-180
(1973). Fisher, 424 U.S. at 386. The Fisher Court also
noted that the right of the Northern Cheyenne Tribe to
govern itself independently of state law had “been con-
sistently protected by federal statute.” Jd. at 386.
In context, i.e., as a specific exception to Montana’s
“general proposition that the inherent sovereign powers
of an Indian tribe do not extend to the activities of non-
members of the tribe”, nothing in Fisher arguably sup-
ports the analysis or the holding of the Court of Appeals.
Id. at 386.
b) “Williams v. Lee, 358 U.S. 217 at 220 (1959).” In
Williams, a non-Indian sued a Navajo Indian and his
wife in state court to collect for goods sold to them on
the reservation where they lived. The Court noted that
no Federal Act had given the state courts jurisdiction
cver such controversies and the issue was resolved. Ex-
clusive jurisdiction was in the tribal court.
Williams v. Lee, 358 U.S. at 220, specifically cites a
number of cases involving non-Indians where essential
tribal relationships were not involved and where the
rights of Indians would not be jeopardized. Felix v.
Patrick, 145 U.S. 317, 332 (1892); United States v. Can-
delaria, 271 U.S. 482 (1926); Harrison v. Laveen, 67
Ariz. 337, 196 P.2d 456 (1948); New York ex rel Ray
v. Martin, 326 U.S. 486 (1946; Donnelly v. United
States, 228 U.S. 248, 269-272 (1913) ; Williams v. United
States, 327 U.S. 711 (1946). The Court in Williams,
then states “absent governing acts of Congress, the ques-
tion has always been whether the state action infringed
on the right of reservation Indians to make their own
laws and be ruled by them. Cf. Utah and Northern Rail-
way Company v. Fisher, 116 U.S. 28.” Id. at 220. Fur-
ther on, Williams concludes that Congress has also acted
consistently upon the assumption that the states have no
power to regulate the affairs of Indians on a reserva-
16
tion, citing 4 Stat. 729, 735, and the 1934 Wheeler How-
ard Act, 48 Stat. 987.
In context, i.e., as a specific exception to Montana’s
“general proposition that the inherent sovereign powers
of an Indian tribe do not extend to the activities of non-
members of the tribe”, nothing in Williams arguably
supports the analysis or the holding of the Court of Ap-
peals. Jd. at 220.
c) “Montana Catholic Missions v. Missoula County,
200 U.S. 118, 128-129 (1906).” The Court in Catholic
Missions affirmed the dismissal on jurisdictional grounds
of Catholic Missions’ complaint seeking to recover taxes
paid to a Montana county for an assessment on its cattle
grazing on Indian land on an Indian reservation. It was
alleged by Catholic Missions:
That with a view to provide means for the carrying
on of the said work of educating the said Indians
the said Jesuit Fathers have acquired a large band
of neat cattle, which roam over and feed upon the
said reservation. That the right to keep and graze
the said cattle upon the lands included within the
said reservation was, long prior to the year 1895,
granted to the Jesuit Fathers by the Indians residing
upon the said reservation and entitled to reside
thereon, which right was confirmed by the acquies-
cence and permission of the Government of the
United States, and that the cattle now owned by
them or by the plaintiff herein, as hereinafter set
out, now graze upon the lands included within the
said reservation by the express permission of the
Indians residing and entitled to reside thereon, and
of the Government of the United States.
Catholic Missions, 200 U.S. at 121-22. Initially, the
Court noted:
It is true that the property of Indians living in the
tribal state, and so recognized by the Government,
is withdrawn from the operation of state laws and
is exempt from taxation thereunder. The Kansas
17
Indians, 5 Wall. 737, 757; United States v. Rickert,
188 U.S. 432.
Catholic Missions, 200 U.S. at 127.
Catholic Missions, however, goes on to state that since
the Indians had neither legal nor equitable title to the
property in question, the cattle would not be exempt from
taxation. Jd. at 128-29. Further, the Court explained
that it had previously determined:
that the Indians’ interest in this kind of property,
situated on their reservations, was not sufficient to
exempt such property, when owned by private in-
dividuals, from taxation. Thomas v. Gay, 169 U.S.
264; Wagoner v. Evans, 170 U.S. 588 .. . the tax
put upon the cattle of the lessees was too remote and
indirect to be deemed a tax upon the lands or priv-
ileges of the Indians...
Catholic Missions, 200 U.S. at 127 (emphasis added).
In context, i.e., as a specific exception to Montana’s
“general proposition that the inherent sovereign powers
of an Indian tribe do not extend to the activities of non-
members of the tribe”, nothing in Catholic Missions argu-
ably supports the analysis or the holding of the Court of
Appeals. Jd. at 127-28.
d) “Thomas v. Gay, 169 U.S. 264, 273 (1898).” In
Thomas, the territory of Oklahoma attempted to tax cat-
tle grazing on reservation lands leased, pursuant to con-
gressional authorization, by Indians to non-Indian
cattlemen.
Thomas, 169 U.S. at 273, cites Utah and Northern
Railway Company v. Fisher, 116 U.S. 28 [29; 542]
(1885), and Maricopa and P. Railroad Company v.
Arizona, 156 U.S. 347 [39;447], with approval. In those
cases, the Court noted it held that:
“the property of railway companies transversing
Indian reservations are subject to taxation by the
states and territories in which such reservations are
located.”
18
Thomas, 169 U.S. at 278. The Thomas Court then con-
cluded it was:
obvious that a tax put upon the cattle of the lessees
is too remote and indirect to be deemed a tax upon
the lands or privileges of the Indians.
Thomas, 169 U.S. at 273 (emphasis added) .’
In context, i.e., as a specific exception to Montana’s
“general proposition that the inherent sovereign powers
of an Indian tribe do not extend to the activities and non-
members of the Tribe”, nothing in Thomas v. Gay argu-
ably supports the analysis or the holding of the Court of
Appeals. Id. at 273.°
e) With the exception in mind, namely, that a tribe
may retain inherent power to exercise civil authority over
the conduct of non-Indians on fee lands when that con-
duct “threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare
of the tribe”, Fisher, Williams, Catholic Missions, and
Thomas, can be viewed collectively as opinions that delin-
eate state and tribal jurisdiction. One view would be
that in Fisher and Williams’ situations, such as adoptions
involving tribal members on the reservation and contracts
involving tribal members on the reservation, or in other
matters of similar intimate tribal relations, a_ tribal
forum rather than a state forum is essential. On the
other hand, Catholic Missions and Thomas unquestionably
7 See also Wagoner v. Evans, 170 U.S. 558, 591 (1898): “It is,
indeed, contended that to permit the territory to tax the cattle
would tend to discourage the making of such leases, and thus
deprive the Indians of the advantages coming to them. This seems
to us too indirect and far-fetched an incident to affect our con-
clusions.”” (Emphasis added.)
8 Also see, Washington v. Confederated Tribes of the Colville
Indian Reservation, 447 U.S. 134, 183-184 n.8 (1980) (Justice
Rehnquist concurring and dissenting), where Thomas v. Gay was
noted to be “part of the backdrop” which supports a state’s power.
Also, “Thomas v. Gay stands as the traditional analysis of Indian
sovereign immunity held to be relevant in McClanahan.” Id. at
184 n.8.
19
stand for the proposition that the conduct of non-Indians,
even when it touches upon tribal interests, is far too re-
mote and too indirect for the restrictions limited to
purely tribal concerns to apply.
When involved in Fisher and Williams’ situations, a
non-member is unquestionably within the purview of the
tribal restrictions. But in Catholic Missions and Thomas
situations, the inherent power of the tribe does not reach
and cannot preclude the proper scope of the jurisdiction
of the state. Delineation, rather than balancing “tribal
interest”, appears to be the appropriate focal point of the
Montana exception. Washington v. Confederated Tribes of
the Colville Indian Reservation, 447 U.S. 134, 176 (1980)
(Rehnquist, J., concurring and dissenting).
Other views on the interplay of Fisher, Williams, Cath-
olic Missions, and Thomas are certainly possible. But it
is improbable that such views can, in any way, enhance
the analysis or the holding of the Court of Appeals.
C. Nothing In National Farmers Union Or Iowa Mu-
tual Detracts From The Clear Principles Estab-
lished In Oliphant And Montana.
1. National Farmers Union.
In National Farmers Union Ins. Cos. v. Crow Tribe,
471 U.S. 845 (1985), this Court addressed the scope of
Oliphant in a different context, not at issue here. The
opinion is still important and instructive however, for
several reasons.
In the first place, National Farmers Union details the
history of tribal sovereignty and the instances in which
this Court has been requested to decide the extent to
which Indian tribes have retained the power to regulate
the affairs of non-Indians. Jd. at 851-52, and nn. 12-14.
Next, the opinion responds to an argument advanced by
Petitioner in National Farmers Union that Oliphant
rendered exhaustion in tribal courts as a matter of
comity “manifestly inappropriate”. 471 U.S. at 845. In
effect, the Court was asked to automatically extend
20
Oliphant and foreclose the issue, and the Court refused.
471 U.S. at 853. In this context, the response of the
Court to Oliphant is quite limited and unquestionably
appropriate. It is obvious that National Farmers Union
was not intended to undermine the principles of Oliphant
(or Montana) in any way.® Yet, this is precisely the
manner in which it has been recently used.
Part of the problem also apparently stems from the
Brief for the United States submitted in National Farm-
ers Union. The United States argued strenuously against
the holding of the Court in Oliphant at the time, and as
an acknowledged advocate in support of tribal civil juris-
diction over non-Indians in National Farmers Union, the
United States understandably presented a very narrow
view of this Court’s Oliphant opinion. (Though not as
narrow a view as in Montana, when the United States
did not bother to even cite Oliphant). Brief for the
United States, Montana v. United States, 450 U.S. 544
(1981). As a result, the Brief for the United States, at
14, in National Farmers Union sets forth and relies pri-
marily on only those portions of the Oliphant opinion
that indicate the Court’s consideration of documents in-
volving federal criminal preemption. The remainder of
the Oliphant opinion, did not, we submit, receive the
thorough attention it reserves. See discussion of Oli-
phant, in National Farmers Union, 471 U.S. at 854-56.
Similarly deserving of more thorough treatment, is the
Opinion of the Attorney General of the United States
also discussed in the Brief for the United States, as
Amicus Curiae:
Our history of Indian affairs indicates that the ab-
sence of tribal criminal jurisdiction over non-Indians
is no basis for disabling Indian Tribes from exercis-
ing civil jurisdiction over non-Indians. . .. But
there is nothing comparable on the civil side. Except
for a brief and unusual transitional period in the
Indian Territory (note 6, infra), no treaty nor stat-
® See Iowa Mutual, 107 S.Ct. at 979 (Stevens, J. dissenting).
21
ute has ever provided for federal adjudication of
Reservation-based civil cases involving non-Indians.
On the contrary, the different rule applicable in re-
spect of tribal assertions of civil jurisdiction was ex-
pressly noted as early [as] 1855 in an Opinion of the
Attorney General cited by this Court in Oliphant.
7 Op. Att’y Gen. 174, cited, 435 U.S. at 199.
Brief for the United States as Amicus Curiae, at 14-15,
National Farmers Union (emphasis added). Oliphant
certainly cited this Opinion, but not for this proposition.
The Brief for the United States as Amicus Curiae’s “dif-
ferent rule applicable in respect of tribal assertions of
civil jurisdiction”, we submit, is in this instance premised
on a difference without a distinction. The United States
neglected to mention that the Opinion involved an adopted
member of the Choctaw Nation. The Attorney General
of the United States did not.
Congress has seen fit to withhold from the Choctaw
nation all criminal jurisdiction over white men
within their territory, but not to withhold from them
civil jurisdiction over such white men as of their
own free will and accord choose to become members
of the nation.
7 Op. Att’y Gen. 174, 185 (emphasis added). See also 7
Op. Atty. Gen. at 178, 181.%° In context, the opinion of
10 Apart from the point here, this Court has appropriately
cautioned, in another context, the limited utility of arguments
founded on historical Indian territory documentation (“very
culiar circumstance’”’): _ ‘
Neither the special historical origins of the Choctaw and
Cherokee treaties nor the crucial provisions granting Indian
lands in fee simple and promising freedom from state juris-
diction in those treaties have any counterparts in the terms
and circumstances of the Crow treaties of 1851 and 1868.
Montana, 450 U.S. at 556-57 n.5. Amici certainly agree with this
analysis and would further note that even the United States,
when it suits its purpose, makes this same argument. See “un-
usual transitional period”, “awkward circumstances” and “excep-
tional situation” referred to by United States in the Brief of the
United States, National Farmers Union, 14, 15-16 n.6. This back-
22
the Attorney General thus puts the support for the “dif-
ferent rule” in a different light. Moreover, because this
entire argument is set forth verbatim in the Strickland
edition of Felix Cohen’s Federal Indian Law, 252-57
(1982), (a tribal advocacy treatise in the opinion of
many), the United States should share credit. To the ex-
tent that the Opinion in National Farmers Union relied
on any of this, even by way of dicta, should really be of
no consequence, for the reasons just discussed. National
Farmers Union, 471 U.S. at 853-55.
The Opinion of the Court in Jowa Mutual Insurance
Co. v. LaPlante, 107 S.Ct. 971 (1987), however, uses this
aspect of National Farmer Union, by way of dicta, to
further advance the “different rule” argument:
Although the criminal jurisdiction of the tribal
courts is subject to substantial federal limitation, see
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), their civil
jurisdiction is not similarly restricted. See National
Farmers Union, 471 U.S., at 854-855, and nn. 16
and 17, 105 S.Ct., at 2453 n. 16 and 17.
107 S.Ct. at 976 (emphasis added). Amici doubt that
National Farmers Union can fairly be read to support
this proposition, and National Farmers Union is all Iowa
Muiual cited in support of it.
2. lowa Mutual.
The Court in Jowa Mutual Insurance Co. v. LaPlante,
107 S.Ct. 971 (1987), was presented with a question of
relatively narrow scope: whether the exhaustion rule an-
nounced in National Farmers Union would apply when
diversity, rather than the existence of a federal question,
was alleged as the basis for federal jurisdiction. Jowa
Mutual resolved the issue in favor of an extension of the
exhaustion rule. Jd. at 976-77. The principle concern
drop should shed further light on Morris v. Hitchcock, 194 U.S. 384
(1904) and Buster, et al. v. Wright, et al., 135 F. 947 (8th Cir.
1905), app. dismissed, 203 U.S. 599 (1906).
23
with Jowa Mutual relates not to this holding, but rather
to the manner in which the Court set forth another state-
ment relating to tribal civil jurisdiction over non-Indians.
Even this aspect of the Opinion, however, is not as prob-
lematic as some would like it to be. In context, the
Court did nothing more than simply recount prior de-
cisions of this Court.
The sentence at issue appears in the Opinion in re-
sponse to Petitioner’s argument that the statutory grant
of diversity jurisdiction overrides the federal policy of
deference to tribal courts. The Court initially pointed
out:
Tribal authority over the activities of non-Indians on
reservation lands is an important part of tribal sov-
ereignty. See Montana v. United States, 450 U.S.
544, 565-566, 101 S.Ct. 1245, 1258-1259, 67 L.Ed.2d
493 (1981); Washington v. Confederated Tribes of
Colville Indian Reservation, 447 U.S. 134, 152-153,
100 S.Ct. 2069, 2080-2081, 65 L.Ed.2d 10 (1980) ;
Fisher v. District Court, 424 U.S., at 387-389, 96
S.Ct., at 946-947. Civil jurisdiction over such activi-
ties presumptively lies in the tribal courts unless
affirmatively limited by a specific treaty provision or
federal statute. ...
Iowa Mutual, 107 S.Ct. at 978 (emphasis added). And
then the Court concluded:
. . . In the absence of any indication that Congress
intended the diversity statute to limit the jurisdiction
of the tribal courts, we decline petitioner’s invitation
to hold that tribal sovereignty can be impaired in
this fashion.
Iowa Mutual, 107 S.Ct. at 978.
In this format, any tribal civil jurisdiction over the
activities of non-Indians served the purpose for the point
the Court was trying to make. This fact alone should
answer those who seek to fashion a “presumption” in
favor of tribal civil jurisdiction over the activities of
non-Indians on fee lands from this single sentence. 107
S.Ct. at 978.
24
If it does not, secondly, “such activities” ordinarily,
and therefore presumably, would refer to only those ac-
tivities cited at the end of the immediately preceding sen-
tence. And there can be no problem with this limited
presumption. “Montana v. United States, 450 U.S. 544,
565-566, 101 S.Ct. 1245, 1258-1259, 67 L.Ed.2d 493
(1981); Washington v. Confederated Tribes of Colville
Indian Reservation, 447 U.S. 134, 152-153, 100 S.Ct.
2069, 2080-2081, 65 L.Ed.2d 10 (1980); and Fisher v.
District Court, 424 U.S. at 387-389, 96 S.Ct. at 946-947”
are all acceptable limitations. Nor should there be a
problem with any requirement for limitation by treaty
or federal statute. Such a limitation is the express basis
for the holdings in both Oliphant and Montana. To the
extent that the entire “presumption” argument appears
to be “much adieu about nothing”, amici agree. It is,
however, at least indicative of the rather tenuous argu-
ments that must be relied on to support tribal civil juris-
diction over non-indians on fee lands. Justice Marshall’s
singular sentence was not intended to create such a “pre-
sumption” and such a presumption does not exist.“ Re-
liance by the Court of Appeals or anyone else on this
aspect of Jowa Mutual, is simply misplaced. Yakima, 828
F.2d at 533.
D. The Treaty Arguments Of The Yakima Tribe Were
Correctly Rejected In Both Oliphant And Montana.
Oliphant and Montana are also instructive in other
significant respects. Most importantly, the Yakima Tribe
cannot point to any specific treaty provision or statute in
substantial support of their authority, that this Court
has not addressed, considered and soundly rejected in
11“A presumption in favor of any inherent, general jurisdiction
for tribal courts is wholly inconsistent with the juridical relations
between the federal government and the Indian tribes that has
existed for the past 100 years.” Oliphant, 544 F.2d at 1019
(Kennedy, J. dissenting). See also Montana, 450 U.S. at 564-66;
Martone, American Indian Tribal Self-Government in the Fed-
eral System: Inherent Right of Congressional License? 51 Notre
Dame Law. 600, 627 (1976).
25
either Oliphant or Montana. Oliphant, 435 U.S. at 197-
99; Montana, 450 U.S. at 557. See also Puyallup Tribe
v. Washington Game Dept., 433 U.S. at 174-7 (1977)
(Puyallup III). On the Treaty with the Yakima, the
Court of Appeals could only say:
Yakima Nation derives authority not only implicitly
from its status as a dependent sovereign, but explic-
itly from the Treaty with the Yakimas, 12 Stat. 951,
2 Kapplers [698] (1855), in which Yakima Nation
and the United States agreed that Yakima Nation
reserved to itself and was guaranteed a right to its
“own government” and its “own laws.”
Yakima, 828 F.2d at 529. Even if the treaty did make
a reference to its “own government” and its “own laws”,
which it does not, such a reservation could not make a
difference in this instance, not even in isolation. In the
historical context described in Oliphant and Montant, it
is of even less significance. Here, as in Montana, the
“treaty nowhere suggested that Congress intended to
grant authority to the Tribe to regulate. ..”. 450 U.S.
at 558.
The rest of the general treaty arguments, i.e. “the
exclusive use” and “without permission” clauses and so
forth, are also addressed by both Puyallup III and Mon-
tana. Puyallup, 433 U.S. at 174-77, Montana, 450 U.S.
at 558-63. “[T]reaty rights with respect to reservation
lands must be read in light of the subsequent alienation
of those lands.” 450 U.S. at 561 (emphasis added) citing
Puyallup III with approval. This, the Court of Appeals
also refused to do, which brings us to the General Allot-
ment Act of 1887, 24 Stat. 388.
II. THE LEGISLATIVE HISTORY OF THE GENERAL
ALLOTMENT ACT CONFIRMS CONGRESS NEVER
INTENDED INDIAN TRIBES TO HAVE CIVIL
JURISDICTION OVER NON-MEMBERS ON FEE
LANDS
The Court of Appeals cited several recent statutes in
support of a federal policy that informed “their inquiry
concerning the reach of tribal sovereignty”. 828 F.2d at
26
533. The Court of Appeals did not cite the General Allot-
ment Act of 1887 and did not discuss or even acknowledge
the federal policy, repeatedly acknowledged by this Court,
that it represents. The very presence of non-Indians on
fee lands in the Yakima Reservation tracks the applica-
tion of this Act to the Yakima Reservation. Oliphant,
Puyallup, Montana and other recent decisions of this
Court attest the importance of several facets of this his-
torical fact.
This Court in Oliphant began with a detailed discus-
sion of this point:
The Squamish Indian Tribe, unlike many other In-
dian tribes, did not consent to non-Indian home-
steading of unallotted or “surplus” lands within |
their reservation pursuant to 25 U.S.C. § 348 [Gen-
eral Allotment Act] and 43 U.S.C. §§ 1195-1197.
Instead, the substantial non-Indian population on the
Port Madison Reservation is primarily the result of
the sale of Indian allotments to non-Indians by the
Secretary of the Interior. Congressional legislation
[General Allotment Act] has allowed such sales
where the allotments were in heirship, fell to ‘in-
competents,”. or were surrendered in lieu of other
selections. The substantial non-Indians landholdings
on the Reservation is also a result of the lifting of
various trust restrictions, which has enabled individ-
ual Indians to sell their allotments. See 25 U.S.C.
§§ 349, 392... [General Allotment Act].
435 U.S. at 193 n.1 (emphasis added). It would also
appear that the Yakima Tribe, like the Suquamish In-
dian Tribe, did not consent to actual homesteading of
unallotted surplus lands. The non-Indians’ presence in
the Yakima Indian Reservation, therefore, like the pres-
ence of non-Indians in the Suquamish Port Madison
Reservation, at a minimum, tracks those provisions of
the General Allotment Act noted in the Congressional
legislation referred to by Oliphant (particularly as em-
27
phasized, supra). This fact should have at least been
acknowledged by the Court of Appeals.”
In addition, in 1901, Congress passed a surplus land
statute specifically applicable to the Yakima Reserva-
tion. 33 Stat. 595. This 1904 Act provided in relevant
part:
That the Secretary of the Interior be, and he is
hereby, authorized and directed, as hereinafter pro-
vided, to sell or dispose of unallotted lands embraced
in the Yakima Indian Reservation proper, in the
state of Washington, set aside and established by
treaty with the Yakima Nation of Indians, dated
June nine, eighteen hundred and fifty-five. . .
33 Stat. 595." Although the precise status of this Act
is not entirely clear, this Court cited this portion of the
text of the Act in an unrelated conflict between the
United States and the Northern Pacific Railroad Com-
pany in 1913. Northern Pacific Railroad Company v.
United States, 227 U.S. 544, 547 n.1 (1913). And, the
applicability of the General Allotment Act to timber-
lands within the Yakima Reservation was decided in
1924 by this Court in United States v. Payne, 264 U.S.
446, 447-48 (1924).
12Some of this early history of allotment and application of
the General Allotment Act to the Yakima Reservation is noted
in United States v. Sutton, 215 U.S. 200, at 200-01 (1909). See
generally United States v. Winans, 198 U.S. 371, (1905) Washing-
ton v. Yakima Nation, 439 U.S. 463 (1979), United States v. Solo-
mon, 753 F.2d 1522 (1985) and Holly v. Totus, No. 85-4436, cert.
denied, 94 L.Ed. 2d 47 (1987). See also United States v. Pelican,
232 U.S. 442 (1914).
18 See S. Rep. No. 2738, 58th Cong., 3d Sess. 4 (1904), Appendix
A infra, which states in part:
No agreement has been made with these Indians, and their
consent has not been secured for the opening of the reserva-
tion and the disposal of the unallotted lands. The failure to
secure such consent or agreement, however, does not rest
with the Government.
See also Pfaller, James McLaughlin, The Man with an Indian
Heart, 224-26 (1978).
28
The silence of-the Court of Appeals regarding the
General Allotment Act and Yakima Reservation is es-
pecially disturbing in light of the decisions in Montana.
United States v. State of Montana, 604 F.2d 1162 (9th
Cir. 1979); Montana v. United States, 450 U.S. 544
(1981). In its decision in Montana, the Court of Appeals
acknowledged that the General Allotment Act implicitly
deprived the tribes of the authority to prohibit certain
activities of resident non-members. 450 U.S. at 550. One
would logically expect that principle, at the very least, to
be addressed below and it is not. After this Court in
Montana expressly disagreed with the restricted view
of the Court of Appeals of this issue, the silence becomes
more than inexplicable. 450 U.S. at 559-60 n.9 In effect,
it undermines the credibility of the entire opinion.
The significance of the General Allotment Act and the
conclusions of this Court are set forth and documented in
detail in Montana, 450 U.S. at 559-60 n.9 The conclu-
sion of this Court regarding the overall effect of the
land alienation occasioned by the policy of the General
Allotment Act on Indian treaty rights tied to Indian
use and occupation of reservation land is equally relevant
here:
It defies common sense to suppose that Congress
would intend that 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.
Montana, 450 U.S. at 560 n.9 (emphasis added).
Any argument that this Court’s conclusion in this
regard was lightly made or subsequently narrowed,“
must necessarily overcome substantial obstacles—not the
least of which is a consideration of the number of occas-
14 The United States has already suggested that New Mezico v.
Mescalero Tribe, 462 U.S. 324, 331 n.12 (1983) “narrowed” the
Montana decision. Brief for the United States at 18 n.9, National
Farmers Union.
29
sions this Court has recently been presented with exten-
sive General Allotment Act questions. In both DeCoteau
v. District County Court, 420 U.S. 425 (1975) and Rose-
bud Sioux Tribe v. Kneip, et al., 4830 U.S. 584 (1977),
the arguments centered around a construction of decades
of General Allotment Act primary source documenta-
tion. The opinions of the Court reflect a consideration of
the issues in precisely those terms. In Puyallup Tribe,
Inc. v. Washington Game Dept., 433 U.S. 173 (1977)
(Puyallup III), United States v. Mitchell, 445 U.S. 535
(1980) (Mitchell I), and United States v. Mitchell, 463
U.S. 206 (1983) (Mitchell II), other aspects of the Gen-
eral Allotment Act were also briefed and presented to
this Court.
In sum, amici does not doubt that this Court has more
than sufficient reasons to support its conclusions in this
regard. Still, it would not be entirely inappropriate to
end the argument here where it really begins—with a
brief review of the circumstances surrounding the enact-
ment of the General Allotment Act of 1887.
Some cases in federal Indian law tend to be complex,
but our position here is straightforward. Congressional
intent, as reflected in the enactment of the General Al-
lotment Act is a critical consideration. And here we can
follow a path clearly marked by the prior decisions of
this Court.
The policy of the federal government to be imple-
mented by the operation of the General Allotment Act
was the “civilization” and eventual assimilation of the
Indian population, and the “gradual extinction of Indian
reservations and Indian titles”. Draper v. United States,
164 U.S. 240, 246 (1896) ; Organized Village of Kake v.
Egan, 369 U.S. 60, 72 (1962). Montana noted these
cases at the very beginning of the discussion. 450 U.S.
at 559 n.9. More cases could have been cited in support
of a recognition of these principles as well. See supra.
145 Also see Mattz v. Arnett, 412 U.S. 481 (1973), and Solem v.
Bartlett, 465 U.S. 463 (1984).
30
Montana also set forth the legislative history of the
General Allotment Act and much of the material that fol-
lows.'® What the Court said then is worth repeating now:
There is simply no suggestion in the legislative his-
tory that Congress intended that the non-Indians
who would settle upon alienated allotted lands would
be subject to tribal regulatory authority. Indeed,
throughout the congressional debates, allotment of
Indian land was consistently equated with the dis-
solution of tribal affairs and jurisdiction.
Montana, 450 U.S. at 560 n.9. Amici agree. Congress
did not intend that non-Indians who settled upon alienated
allotted or surplus lands would be subject to the civil
jurisdiction of Indian tribes.
Perhaps there were reasons for the Court of Appeals
not to address the General Allotment Act or any of the
congressional materials set forth in Montana. We are not
so certain. One thing, however, is certain. The decision
below has condemned the non-Indians in these areas,
and state and local governments, to endless rounds of
needless litigation, in tribal, state and federal court, in
order to sort out the details of who regulates what and
whom within the limits of a new and novel “tribal inter-
est” test. However, Congress played a role in this proc-
ess. That, we submit, should be reason enough for this
Court to reverse the Court of Appeals.
Adherence to these principles of construction maxi-
mizes the ability of States and tribes to determine
the scope of their respective authority without resort
to adjudication, and maximizes judicial deference to
the legislative forum.
Washington, 447 U.S. at 181 (Rehnquist, J., concurring
and dissenting).
CONCLUSION
The judgment of the Court of Appeals should be re-
versed.
16 See Appendix B, infra, for the legislative history of the General
Allotment Act submitted in Montana.
September 2, 1988
31
Respectfully submitted,
Tom D. ToBIN *
SUSAN W. PAHLKE
ALVIN PAHLKE
TOBIN LAW OFFICES, P.C.
422 Main Street
Winner, South Dakota 57580
(605) 842-2500
* Counsel of Record
la
APPENDIX A
58the Congress, Report
3d Session. No. 2738.
SALE AND DISPOSITION OF SURPLUS OR
UNALLOTTED LANDS OF THE YAKIMA
INDIAN RESERVATION, WASH.
SENATE
DECEMBER 12, 1994.—Ordered to be printed.
Mr. GAMBLE, from the Committee on Indian Affairs,
submitted the following
REPORT.
[To accompany H. R. 14468.]
The Committee on Indian Affairs, having had under
consideration the bill (H. R. 14468) to authorize the
sale and disposition of surplus or unallotted lands of the
Yakima Indian Reservation, in the State of Washington,
recommended that the same do pass.
A bill (H. R. 13522) to authorize the sale and disposi-
tion of surplus or unallotted lands of the Yakima Indian
Reservation, in the State of Washington, was referred
by the Committee on Indian Affairs of the House to the
Secretary of the Interior for a report thereon. A report
was made upon said bill by the Department and certain
amendments were suggested. The suggestions of the
Department were adopted and the bill changed to con-
form thereto and was introduced as H. R. 14468.
The report of the Committee on Indian Affairs of the
House is very full and complete, setting forth the pro-
viisons of the bill and the necessity for the proposed
legislation. The report thereon by the Committee of the
House is adopted as a part of this report.
2a
HOME REPORT
The Yakima Indian Reservation was established by
treaty under date of June 9, 1855. For many years the
Indians have claimed that the boundary lines of said
reservation as laid out are incorrect and that their reser-
vation includes more lands than have been embraced
within the recognized limits of their reservation. Under
direction of the Secretary of the Interior, Mr. E. C.
Barnard, of the Geological Survey, during the year 1899,
made an investigation of the claims of the Indians and
found that the Yakima Indians were entitled to land
estimated to contain about 357,878 acres according to the
terms of the treaty. ...
This reservation, as heretofore defined, contains about
800,000 acres, of which nearly 300,000 have been al-
lotted to the Indians. This bill proposes to recognize the
validity of the claim to the tract of land adjoining the
reesrvation to the extent of 293,837 acres, and of this
land about 78,486 acres have been entered under the
various land laws, and it is proposed that the rights of
these settlers and purchasers shall not be interfered with,
leaving approximately 715,351 acres to be disposed of
under the terms and provisions of this bill.
Section 1 of the bill authorizes and directs the Secre-
tary of the Interior to sell or dispose of the unallotted
lands in the Yakima Indian Reservation, and recognizes
the claim of the Indians to the tract adjoining their
present reservation on the west, according to the find-
ings of Mr. E. C. Barnard, and said tract is regarded
as a part of said reservation for the purposes of this
act. It also provides that where valid rights have been
acquired prior to March 5, 1904, the date of the intro-
duction of the first bill providing for the opening of
these lands, to lands within said tract by bona fide set-
tlers or purchasers under the public land laws such rights
shall not be abridged. It also provides that the claim of
the Indians to such lands shall be considered as fully
8a
compensated for by reason of the expenditure of large
sums of money on said Yakima Reservation for the bene-
fit of these Indians. A little over 78,000 acres have been
taken out.
This land is largely grazing land and sparsely tim-
bered. The Government has expended many thousands
of dollars for the benefit of these Indians in the past,
and last year the sum of $45,000 was est aside for the
construction of an irrigation ditch to water the Indian
lands. This will be of very great benefit to the Indians,
and your committee feel that it is but just and fair that
these moneys should be set off against the lands taken
out of the disputed tract, and they consider this full
compensation for the claims of the Indians to such lands.
Section 2 provides that allotments shall be made to any
Indians entitled thereto, including children now living
born since the completion of existing allotments and who
have not already received allotments. The Secretary also
may reserve such lands as he may deem necessary or
desirable in connection with irrigation systems for
agency, school, and religious purposes, and such grazing
and timber lands as he deems best for the uses of the
Indians in common, provided he may dispose of such lands
from time to time under the terms of the bill if he may
deem best.
Section 3 provides for the classification of the lands
by the Secretary of the Interior as irrigable, grazing,
timber, mineral, and arid lands, and provides for their
appraisement by legal subdivisions, except that the mine-
ral lands need not be appraised and the timber lands shall
be appraised separately. The basis for the appraisal of
the timber shall be the amount of standing merchantable
timber thereon. When the classification and appraisement
is completed the lands shall be disposed of under the gen-
eral provisions of the homestead laws of the United
States, and shall be open to settlement and entry, at not
less than their appraised value, by proclamation of the
4a
President. The proclamation shall prescribe the manner
in which the lands shall be settled on, occupied, or entered,
and no person shall be permitted to settle upon, occupy,
or enter any of the said lands except as prescribed in
such proclamation uuntil after the expiration of sixty
days from the time when the same are opened for settle-
ment. The rights of Union soldiers and sailors of the
civil and Spanish wars and the Philippine insurrection
shall not be abridged.
Section 4 provides that the proceeds arising from the
sale or disposition of the lands aforesaid, including the
sums paid for mineral lands, exclusive of customary fees
and commissions, shall, after deducting the expenses in-
curred from time to time in connection with the appraise-
ment and sales, be deposited in the Treasury of the United
States to the credit of the Indians belonging to and hav-
ing tribal rights on the Yakima Reservation, to be ex-
pended for their benefit under the direction of the Secre-
tary of the Interior in the construction, completion, and
maintenance of irrigation ditches, purchase of wagons,
horses, farming implements, materials for houses, and
other necessary and use ful articles as may be deemed
best to promote their welfare and aid them in the adop-
tion of civilized pursuits and in improving and building
homes for themselves. It authorizes the payment in cash
to the Indians per capita, share and share alike, if the
Secretary deems it best, but not otherwise.
The reservation is a treaty reservation, and this bill
recognizes not only the right of the Indians to the use
and occupancy of the lands, but in effect recognizes the
title of the Indians to the lands and secures to them the
entire proceeds arising from the sales made. It is very
proper that the expenses necessarily incurred in disposing
of these lands shall be defrayed out of the proceeds of the
sales. A long-standing dispute between the Government
and the Indians is settled and the title of the Indians to
5a
the lands claimed by them is recognized, and, instead of
the Government being required to pay the Indians a large
sum of money for the disputed tract, the Indians will
receive whatever these lands bring under the terms of
this bill. No agreement has been made with these In-
dians, and their consent has not been secured for the
opening of the reservation and the disposal of the un-
allotted lands. The failure to secure such consent or
agreement, however, does not rest with the Government.
Repeated attempts have been made to reach an agree-
ment with these Indians and very liberal terms have
been offered, but the Indians have declined to enter into
such an agreement. The Crow-Flathead, etc., Commission
negotiated with these Indians from time to time from
1896 until 1901, when the commission was discontinued.
Since then special agents of the Government have endeav-
ored to make a satisfactory agreement, but have failed.
Under these circumstances your committee do not feel
that further negotiations should be carried on in order to
secure the consent of the Indians.
This reservation is situated about 4 miles from North
Yakima, a city with a population of about 7,000 people.
It is located in the very heart of the irrigated district
of Yakima County, and of the State of Washington, and
is a very great hindrance to the continued and complete
development of that country. With so large a body of
land as that held from settlement and cultivation, settle-
ment and growth can not help but be retarded. We be-
lieve it to very important that this reservation should
be opened at once.
The provisions of the bill with reference to the ap-
praisement and classification are very important. The
lands of this reservation are of a varied character. Much
of them are arid, sage-brush lands; some of this can be
watered, and when this is done the land is of very great
value. Some of it, however, is not likely to be watered for
6a
many years, and naturally this is of little worth. Some
of the land nearer the mountains is fairly good grazing
land, and there is some tolerably good timber, rather re-
mote, however, from transportation. These various condi-
tions make it very necessary that much latitude shall be
given the Department in the disposition of the lands,
and the provisions of the bill in this respect are absolutely
necessary by reason of these various conditions.
7a
APPENDIX B
[EXCERPTS OF ARGUMENT]
IN THE SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1979
THE UNITED STATES OF AMERICA and
THE CROW TRIBE OF INDIANS, MONTANA,
_ Respondents,
vs.
THE STATE OF MONTANA, MONTANA STATE FISH and
GAME COMMISSION, JOSEPH H. KLABUNDE, SPENCER
S. HEGSTAD, EARL L. SHERROW, JR., ALFRED L. BISHOP
and PAUL B. TIHISTA; BIG HORN Rop & GUN CLUB;
and CITIZENS RIGHTS ORGANIZATION,
Petitioners.
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
BRIEF FOR AMICI CURIAE STATE OF
MINNESOTA and MINNESOTA COUNTIES OF
BECKER, BELTRAMI, CASS, CLEARWATER,
KOOCHICHING, LAKE OF THE WOODS,
MAHNOMEN and PENNINGTON
8a
IV. THE GENERAL ALLOTMENT ACT ABRO-
GATED ANY AUTHORITY WHICH THE CROW
TRIBE ORIGINALLY MIGHT HAVE HAD TO
REGULATE HUNTING AND FISHING BY NON-
INDIANS ON NON-INDIAN LAND.
As early as 1880, bills were introduced in Congress
which provided generally for the allotment of reservation
lands to Indians." In 1881 a bill substantially similar
to the General Allotment Act (S. 1773) was debated ex-
tensively in the Senate.’** From the outset of and through-
out the debates respecting the 1881 bill, it was clearly
understood by all the members of the Senate that the
purpose of the bill was to civilize the Indian population
of the country and this was to be accomplished in part by
the dissolution of tribal relations.** For example, Senator
Saunders stated early in the debates on S. 1173 as
follows:
Heretofore we have recognized the tribal rela-
tions. ... But now a new order of things is ahout to
be established, as I understand. The people of this
country are in favor largely, in my opinion, of giv-
ing the Indians the rights of citizenship, of making
them citizens, and requiring of them all that is re-
quired of others ....
I only wanted to say that I favor the principle of
the bill, that I wish it to be known that I am in
11 See H.R. 5038, 46 Cong., 2nd Sess. (1880) ; S. 1773, 46th Cong.,
3d Sess. (1880).
12 See United States v. Mitchell, —— U.S. ——, 100 S.Ct. 1349,
1354, n.4 (1980).
138 See e.g., XI Cong. Rec. 779 (Sen. Vest), 782 (Sen. Coke),
783-84 (Sen. Saunders), 785 (Senators Morgan and Hoar), 881
(Sen. Brown), 906 (Sen. Butler), 939 (Sen. Teller), 1003 (Sen.
Morgan), 1028 (Sen. Hoar), 1064 and 1065 (Sen. Plumb), 1067
(Sen. Williams).
9a
favor of dividing the lands up into severalty to these
people, and in favor of the earliest possible break-
ing up of the tribal relation and making them citi-
zens in every sense of the word.
XI Cong. Rec. 783-84.
As part of the effort to civilize the allottees, it was
expressly provided in the bill that upon issuance of the
patent for the allotment, the allottee was to become sub-
ject to the laws of the territory or state in which the
allotment was situated.* What is significant about this
provision for purposes of this case is that the allotment
of lands and the resultant extension of state law was
consistently equated with the dissolution of tribal affairs;
that is, the extension of state jurisdiction was to result
in the termination of tribal jurisdiction.” Thus, it was
understood and intended that with the extension of state
or territorial jurisdicion upon issuance of a patent, the
tribal relations of the allottees were to be, in effect,
terminated.”
14S. 1773, supra at §6. See XI Cong. Rec. 778-79 (Sen. Coke),
875 (Sen. Hoar), 878 (Sen. Coke), 1029 (Sen. Plumb), 1066 (Sen.
Kerman), 1067 (Sen. Morgan).
15 See, e.g., XI Cong. Rec. 785 (Sen. Morgan), 875 (Sen. Hoar),
878 (Senators Hoar and Coke), 881 (Sen. Brown), 908 (Sen.
Call), 939 (Sen. Teller), 1028 (Sen. Hoar), 1067 (Senators Ed-
munds and Williams). As Senator Hoar pointed out during the
course of the debates on §S. 1773.
An Act of Congress may undoubtedly take away that shield,
may destroy the tribal relation, and very likely do what this
statute in express terms undertakes to do—that is, subject the
Indian to State law....
* * * *
So if you make an Indian subject to the law of the State, it
is not by limiting or by extending the operation of that law;
it is by taking away from the Indian the tribal character... .
XI Cong. Rec. 1028.
16 See e.g. XI Cong. Rec. 875 (Sen. Hoar), 876 (Sen. Morgan).
10a
The significance of the foregoing discussion to the pres-
ent case is readily apparent. It is unreasonable to con-
clude that Congress intended to terminate tribal author-
ity over individual Indian allottees and at the same time
subject non-Indian settlers to tribal jurisdiction. Cf.
Oliphant v. Suquamish Indian Tribe, 435 U.S. at 203
(discussion respecting significance of 1854 Amendment
to the Trade and Intercourse Act). Moreover, it is un-
likely that Congress intended that non-Indians entering
the reservation would be subject to tribal jurisdiction
since the avowed purpose of the bill was, in part, the
ultimate destruction of tribal government.’"* Nowhere in
the debates on S. 1773 is there any mention or implica-
tion of an understanding that the incoming settlers would
be subject to tribal jurisdiction.* If Congress had con-
17 In addition, Congress intended that civilization of the Indian
population would be facilitated in part by non-Indians who would
settle upon the surplus and alienated allotted lands and would
thus expose the allottees to the way of civilization. See e.g., XI
Cong. Rec. 876 (Sen. Morgan), 877 (Sen. Hoar). See also XVII
Cong. Rec. 1762-63 (Senators Teller and Dawes); Report of the
Secretary of the Interior (1891), p. VI; Report of the Commis-
sioner of Indian Affairs (1891), pp. 46-47; Report of the Secre-
tary of the Interior (1892), p. XXXIII. It would be incongruous
for Congress at the same time to intend that the tribes exercise
authority over the non-Indians on the fee patented lands.
1S It must have been contemplated by Congress that the onening
of the vast territories encompassed by the Indian reservations to
eventual non-Indian settlement could lead to the development pre-
dominantly non-Indian towns and communities. In fact, to aid
the efforts to settle the vast territories opened during this era,
Congress enacted legislation permitting right-of-ways for high-
ways to be established on Indian lands and the condemnation of
individual Indian lands for public purposes. Act of March 3,
1901, 31 Stat. 1084, §§ 3 and 4, 25 U.S.C. §§ 311, 357.
Additionally, it is evident from the debates on S. 1773 and similar
bills debated in later sessions that Congress knew and understood
that after the 25-year alienation restriction had expired, much
of the allotted lands would pass to non-Indian ownership. See e.g.,
XI Cong. Rec. 783 (Sen. Teller), 882 (Sen. Brown), 934 (Sen.
Hoar); XVIII Cong. Rec. 974 (Sen. Dolph). See generally Collins,
lla
templated that tribal jurisdiction would extend to non-
Indians, express mention would have certainly been made
of such. To the contrary, however, repeated references
were made during the debates to making Indian allottees
amenable to the laws which governed the incoming
settlers.
Review of the legislative materials pertinent to subse-
quent versions of S. 1773 reveals that the underlying un-
derstanding evidenced in regard to that bill prevailed in
Congress and thus was carried forth and enacted in the
General Allotment Act.’® For example, Representative
Skinner, one of the sponsors of the General Allotment Act
in the House of Representatives, stated as follows:
This means that the tribal relations must be
broken up; that the practice of massing large num-
bers of Indians on reservations must be stopped;
that lands must be allotted in severalty....
.... Let him [the Indian] become a citizen of the
United States and be taught by contact with the
white man. And in addition therety give him his
land as is provided in this bill and extend over him
and his property the same protection that is accorded
to white men. . .
XVIII Cong. Rec. 190-91 (emphasis added.) In addition,
it was recognized in the Senate that the bill then before
Implied Limitations on the Jurisdiction of Indian Tribes, 54 Wash.
L. Rev. 479, 506-07 (1979).
19 See e.g., XIII Cong. Rec. 3211 (Sen. Conger) and 3212 (Sen-
ators Conger and Dawes) (1882); XIV Cong. Rec. 2279-80 (Sen.
Coke), 2280 (Senators Dawes and Call) (1884); XVII Cong. Rec.
1630 (Sen. Dawes), 1632 (Sen. Maxey), 1634-35 (Sen. Maxey),
and 1762 (Sen. Teller) (1886); XVIII Cong. Rec. 190 (Rep. Skin-
ner), and 191 (Representatives Skinner and Perkins) (1886).
Additionally, S. 1773 was similar to the General Allotment Act
in most significant respects. In later sessions, bills essentially
identical to the 1887 Act were debated in and passed by the Senate.
See United States v. Mitchell, U.S. ——, 100 S.Ct. 1349, 1354
(1980); S. 1455, 47th Cong., Ist Sess. (1882); S. 48, 48th Cong.
2d Sess. (1883).
12a
it (the General Allotment Act) had passed the Senate
substantially in the same form as in previous sessions of
Congress. See, e.g., XVII Cong. Rec. 1558 and 1559
(Sen. Dawes), 1762 (Sen. Teller). As pointed out by
Senator Dawes, the author of and one of the primary
spokesmen for the General Allotment Act, “this is a very
important bill in reference to the Indians. It has been
considered, as I have already said, a great many times
in the Senate.” XVII Cong. Rec. 1559. Since the bill
which was enacted in 1887 was viewed as essentially the
same as that considered in earlier sessions and since the
underlying assumptions regarding the cessation of tribal
relations and the immediate extension of state laws to
allottees were the same as in previous sessions,” it must
be assumed that the intentions and understandings of Con-
gress regarding tribal jurisdiction over non-Indians under
earlier versions of the bill were, in effect, carried forth
and enacted in 1887.
In light of the history just discussed, the State and
Counties believe that the court below was far too narrow
in its construction of the Congressional intent in passing
the General Allotment Act. It appears that Congress not
only contemplated that non-Indian residents would not be
2° Contemporaneous administrative materials respecting the Gen-
eral Allotment Act confirm that the underlying assumptions of
Congress in enacting that Act was the same as in previous ses-
sions. See, e.g., Report of the Commissioner of Indian Affairs
(1887), pp. VI, VIII-IX; Report of the Secretary of the Interior
(1888), p. XXXI; Report of the Commissioner of Indian Affairs
(1890), p. VI; Report of the Commissioner of Indian Affairs
(1891), p. 6. Thus, as pointed out in the Report of the Secretary of
the Interior for 1888,
A beginning has already been made upon another line of
policy, from which much appears justifiably to be hoped—the
complete dispersion of the tribes and bands by the establish-
ment of individuals as landowners and the investment of them
with the dignity, rights and privileges of citizens in the State
and nation.
Id. at XXXII.
a
13a
subject to tribal regulation on their own property, but
that all non-Indians, resident and non-resident, would not
be subject to tribal regulation on all non-Indian owned
lands within the reservation. The exercise of tribal sov-
ereignty in the instant case would therefore be inconsist-
ent with the overriding interests of Congress in opening
reservations to non-Indian settlement. See Washington
v. Confederated Tribes of the Colville Indian Reservation,
48 U.S.L.W. at 4673.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.