Amicus Curiae Brief — Wilkinson v. Confederated Tribes & Bands of the Yakima Indian Nation

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NOS. 87-1622, 87-1697, and 874170" © cK

» @® ©) ete

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,

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

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.

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)

Ne set

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

eee

ne ty Ne

TABLE OF AUTHORITIES

CASES: PAGE

eS.

499, 502-503 (1896) 25

Baker v. Carr, 369 U.S. 186 (1962) 32

Bates v. Clark, 95 U.S. 204,

208 (1877) —_ 2 oo. 20. 20-' o

, U.S. .

99 L.Ed.2d 333, 346 (1988) 14, 58

, 135 F. 947

(8th Cir. 1905) 7. 2

California v. Cabazon Band of Indians,

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

n.19 (1987) 52

5 Pet. 1, 8 L.Ed. 25 (1831) 16

420 U.S. 425, 432 (1975) 5. 28

De Geofroy v. Riggs, 133 U.S. 258,

267 (1889) 57, 58

, 139 U.S. 449,

461 (1891) | 60

Examining Board of Engineers v.

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

(1976) 56

(iii)

Church of Glendale v. County of

Los Angeles, California, 482 U.S.

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

424 U.S. 382, 383 (1976) 39,

Fletcher v. Peck, 6 Cranch 87, 147,

3 L.Ed. 162, 181 (1810) 16,

vin, 407 U.S. 67

(1972)

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

, 846 F.2d 468,

493 (8th Cir. 1988)

, 109 U.S. 556,

569 (1883)

LaPlante, 480 U.S. ’

94 L.Ed.2d 10 (1987) 44, 45, 46,

Kinsella v. U.S., 361 U.S. 235 (1960)

Local 28 of the Sheet Metal Workers

International Assn. _v. EEOC, 478

, 88 L.Ed.2d 47 (1986)

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

496 (1973)

Vv i Cc ‘ye

411 U.S. 164, 172 (1973)

(iv)

32,

63,

48,

te re em.

, 450 U.S.

544 (1981) 13, 22, 23, 26,

34, 35, 36, 37,

30, 40, 42, 43,

45, 46, 48, 49,

, 200 U.S. 118

| (1906)

| National Farmers Union Insurance

Company v. Crow Tribe, 471 U.S.

845 (1985)

, 440 U.S. 410, 426

(1979)

462 U.S. 324 (1983)

, 809 F.2d 1317

(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, 206 (1978) 15, 18, 20,

32, 34, 35, 36, 43,

Reid v. Covert, 354 U.S. 1, 5-6 |

(1957) 56, 57,

’

436 U.S. 49, 82 (White, J.,

dissenting)

| (v)

31,

Vv j , 368 U.S.

351, 358 (1962)

Solem v. Bartlett, 465 U.S.

463, 468 (1984) 13, 27,

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

393 U.S. 503 (1969)

, eas

U.S. 278 (1909)

, 264 U.S.

446, 448 (1924)

, 435 U.S.

313, 323 (1978) 33, 34, 36,

Washington v. Confederated Tribes

447 U.S. 134, 152-154 (1980) 36,

Williams v. Lee, 358 U.S. 217

(1959) 36,

Worcester v. Georgia, 6 Pet. 515,

551-552, 554, 8 L.Ed. 483 (1882)

Wygant v. Jackson Board of Education,

476 U.S. 267 (1986)

OTHER REFERENCES:

Act of June 30, 1834, 4 Stat. 729

Act of April 29, 1868, 15 Stat. 635

(vi)

28,

43,

45,

40,

17,

13,

18,

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 Ao, fa, Bae

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, 30,

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 Founeation 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,"

Pp. 5-87, 5-88

Federalist No. 39 59,

Hearings Before the United States

Rapid City, South Dakota,

1986 5, 6, 8, 9,

, 87th Cong.,

lst Sess., 89th Cong., lst Sess.

(1961, 1965)

Otis,

of Indian Lands (F. Pucha Ed.)

S.D. Const. 11, 12, 14, 58,

(viii)

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,

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

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 attempted 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

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

federal liquor law. See 18 U.S.C. § 11e4,

The tribe has also retaliated for the failure

of the reservation communities to buy. such

licenses by imposing a tribal boycott of such

wns 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

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. , 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.

If non-Indians are to be abruptly, in

1988, subjected to tribal governance, they

have the right, as amatter 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

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

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.

exhape 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, pp.

37 6 Ws 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.38. The ability of tribal

' 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

i 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

1indeed, 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.

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 Sioux 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.

. 4

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

difficulties--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

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

a AO Ne eg OM

ee RB Ge Nat FES tt

of Appeals for the Ninth Circuit in this

litigation. Nor are these new problems, as

revealed by the hearings 6n 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., I1st Sess.

(1961, 1965). See also Brakel, American

Indi Tribal c ) The Cost es

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 tneir "civil and religious

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.

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 non-Indian lands on reservations.

See 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 lands 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

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.2da 333, 346 (1988), it

cannot deprive the non-Indians on the plains

of South Dakota of their right to

representative government any more than it

could deprive blacks inthe city of Selma,

Alabama of their right to representative

government.

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.

Suguamish Indian Tribe, 435 U.S. 191, 206

(1978).

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 lands. In

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

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). Critically, he goes on to say:

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

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

[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 U.S. at 207, 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:

— ,

among other people subject to the

authority of the United States,

shall commit any wrong upon the

person or property of the Indians,

j ill, upon proof

made to the agent and forwarded to

the Commissioner of Indian Affairs

at “ashington 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 Indian or

damaged property over to the federal

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

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 t) Fit) x -

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

period of the General Allotment Act, both

common law andthe statrtory law indicated

that in general a tribe's jurisdiction ceased

where its land ownership ceased.

B. The General Allotment Act Era.

The reason this case comes before this

Court is that non-Indians reside on the

reservation. The reason non-Indians 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

the elimination of "tribal relations." 450

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

to Regulate Trade and Intercourse with Indian

Tribes" passed in 1834, see Bates v. Clark,

supra, Congress intended 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 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.

Id.