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

Supreme Court brief1988

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

IN THE EILED

Supreme Court of the United HEP 3 1988

OCTOBER TERM, 1988

PHILIP BRENDALE,

. Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et ai.,

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)

WIiILsOn - Eras PRINTING Co., INc. - 789-0096 - WASHINGTON, D.C. 20001

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 .....2000...2...eeeeeeeeeeeeeeeeeeees

EEE

I. THIS COURT HAS ESTABLISHED CLEAR

PRINCIPLES FOR DECIDING QUESTIONS

OF TRIBAL CIVIL JURISDICTION OVER

NON-MEMBERS ON FEE LANDS ...................

Il.

In Oliphant This Court Set Forth Precedent

And Presumptions That Are Controlling

eavesowenonnes

In Montana This Court Reaffirmed The Prec-

edent And Further Delineated The Princi-

ples That Are Controlling Here .......................

Nothing In National Farmers Union Or Iowa

Mutual Detracts From The Clear Principles

Established In Oliphant And Montane ..........

1. National Farmers Union ...........................

ELI

. The Treaty Arguments Of The Yakima Tribe

Were Correctly Rejected In Both Oliphant

ESE

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 .......00W......

TABLE OF CONTENTS—(Continued)

CONCLUSION .......----------c+-es--es-eeceseeeneenensnessnssnntennsssennnaanees

APPENDICES:

A. Excerpt from S. Rep. No. 2738, 58th Cong., 3d

Sess. (1904) ......-.----cc-eee--ceeersneessseneesnenensennnsennennneen

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

CTBT accnennannccrennccnsacecnecseensnnteecnsnnnsesersatenccanenampeesoanen

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

CRI wachhidichichetacbabbbbhechibiindteslide teeta il Siem TLS 29

Donnelly v. United States, 228 U.S. 243 (1913)...... 15

Draper v. United States, 164 U.S. 240 (1896)........ 13, 30

Felix v. Patrick, 145 U.S. 317 (1892) 15

Fisher v. District Court, 424 U.S. 382 (1976) ...14, 18, 19,

23, 24

Fletcher v. Peck, 6 Cranch 87 (1810) ................ 9

Harrison v. Laveen, 67 Ariz. 337, 196 Pac.2d 456

RE a a ene oe Nes Oey <i ee 15

Holly v. Totus, No. 85-4436, cert. denied, 94 L.Ed.

NE veshnin Ss hnthiclimbasmiiiilic mst 27

Iowa Mutual Insurance Co. v. LaPlante, 107 S.Ct.

ell ch 5 anatase bipdiiibinbadbisdindest be ncsicsal 20, 22, 23

Johnson v. McIntosh, 8 Wheat. 543 (1823) ............. 9

The Kansas Indians, 5 Wall. 737 (1866) .................. 16, 17

Knight v. Shoshone and Arapahoe Indian Tribes,

| en te Te a ETE 3

Langford v. Monteith, 102 U.S. 145 (1880) ............. 11

Maricopa and P. Railroad Co. v. Arizona, 156 U.S.

I Bt ei 17

Mattz v. Arnett, 412 U.S. 481 (1978) 29

McClanahan v. Arizona State Tax Comm’n, 411

ST EN re eee eet CRN 12, 15, 18

Mescalero Apache Tribe v. Jones, 411 U.S. 145

(RIE EE 5 |S I Rs are ANA i eS CoE CORN 12

Montana v. United States, 450 U.S. 544 (1981)......passim

Montana Catholic Missions v. Missoula County, 200

ee ee GI ketenes 14, 16, 17, 18, 19

Morris v. Hitchcock, 194 U.S. 384 (1904) 000000000... 22

National Farmers Union Insurance Cos. v. Crow

Tribe of Indians et al., 471 U.S. 845 (1985).....6, 19, 20,

21, 22

TABLE OF AUTHORITIES—Continued

Page

New Mexico v. Mescalero Tribe, 462 U.S. 324

CI ia sncanccsnin sects ninseisinsssninttesenenconsnmsenieneaenanatos 14

New York ex rel. Ray v. Martin, 326 U.S. 496

CI i csiiccrine ieiseniinsencscilieatatilidciinlidtinininsiniaticninttnateeenss 11, 15

Northern Pacific Railroad Co. v. United States, 227

I i cieiiipetinitnntcet Siiethicinirlitnanenllebaaniistaaictae 27

Oliphant v. Schlie, 544 F.2d 1007 (1976) -............... 24

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

CO ii tanec csscsdasetaeitnsitchitanineatiliinnsctccstil passim

Organized Village of Kake v. Egan, 369 U.S. 60

COI ch chen tsccncitnininedicicinnsnibdaliiisipelicbiannaeannestaomemareniete 13, 30

Puyallup Tribe v. Washington Game Depart., 433

RR er ae 12, 13, 25, 26, 29

Rosebud Sioux Tribe v. Kneip, et al., 430 U.S. 584

CID anntcisianscenincinsoscnnmmsennniisianniiiniaianncensintsianmtiasiitanicn 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.

QO Eid iieciicindecediscsdicichieendadtlatalllbaleitraceiimenssece 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,

ook OO 8), re eer ee 15, 17

Ute Indian Tribe v. State of Utah, 773 F.2d 1087

(10th Cir. 1985), cert. denied, 107 U.S. 596

CTI, ccenisccissers nensttnsnenaioneunewsiesiinistenspesdasannesnndecmeninees 2,3

TABLE OF AUTHORITIES—Continued

Page

Wagoner v. Evans, 170 U.S. 588 (1898) ............... 17, 18

Washington v. Confederated Colville Tribes, 447

SS SF a ee 18, 19, 23, 24, 30

Washington v. Yakima Nation, 439 U.S. 463

REE RR : eee Te RE 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.

ORR MSS Se TY ee passim

STATUTES AND TREATIES

i 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

a a 26

1934 Wheeler Howard Act, 48 Stat. 987, 25 U.S.C.

estes 16

CONGRESSIONAL REFERENCES

S. Rep. No. 2738, 58th Cong., 3d Sess. 1 (1904) ......... 27

OTHER AUTHORITIES

2 Op. Atty. Gen. 693 (1834)... 10, 21

7 Op. Atty. Gem. 174 (1856)......................................... 10, 21

F. Cohen, Handbook of Federal Indian Law (1982

ia teeaen Niet access eenierdeestesenereeaniestneaes 22

Pfaller, James McLaughlin, The Man with the In-

ie 27

Martone, American Indian Tribal Self-Government

in the Federal System: Inherent Right of Con-

gressional License? 51 Notre Dame Law 600

SENET SRP ATT ORES ee I aS 6 a 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 2 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

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-

daries of the original Uncompahgre Reservation and the

original Uintah 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-

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

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 new 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-

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.

Simply 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 ean 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 Montana.

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 exnect a plethora of policy considera-

tions in support of the tribal position. But the conclusion

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 congressionai

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).

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. Jd. 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

position. In Oliphant, tribal eriminal 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

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.

Equaliy 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

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. Id. 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. /d. at 197. Until recently, for-

mal tribal court systems did not really exist for civil or

criminal purposes. /d. 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 tribe. 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

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 criminal 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).

(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

only 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., 4833 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

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.

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.

®“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.

411 U.S. 145, 148 (1973) and McClanahan v. Arizona

State Tax Comm’n, 411 -I).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

over such controversies and the issue was resolved. Fx-

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. 496 (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-

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

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.”

Thomas, 169 U.S. at 273. 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 ujon

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. Jd. 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 healtn 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.

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

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 che

Indian Territory (note 6, infra), no treaty nor stat-

® See lowa Mutual, 107 S.Ct. at 979 (Stevens, J. dissenting).

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

1 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 pe-

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-

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 Iowa 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

Mutual 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., 1385 F. 947 (8th Cir.

1905), app. dismissed, 203 U.S. 599 (1906).

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.

Towa Mutual, 107 8.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.

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. 184, 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).

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

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-

phasized, supra). This fact should have at least been

acknowledged by the Court of Appeals.”

In addition, in 1904, 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).

13 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).

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 ‘he 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.

—;

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., 430 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.

15 Also see Mattz v. Arnett, 412 U.S. 481 (1973), and Solem v.

Bartlett, 465 U.S. 463 (1984).

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.

I ee ee

September 2, 1988

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

APPENDICES

APPENDIX A

58the Congress, Report

3d Session. SENATE No. 2738.

SALE AND DISPOSITION OF SURPLUS OR

UNALLOTTED LANDS OF THE YAKIMA

INDIAN RESERVATION, WASH.

DECEMBER 12, 1904.—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

sa.e 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 1_ 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 o¢ 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.

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

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 biil 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

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.

a . * *

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

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 Incians 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

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.

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

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 about 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).

13 See e.g., XI Cong. Rec. 779 (Sen. Vest), 782 (Sen. Coke),

783-84 (Sen. Saunders), 785 (Senators Morgan and Hoar), 88)

(Sen. Brown), 906 (Sen. Butler), 939 (Sen. Teller), 1003 (Sen.

Morgan), 1028 (Sen. Hoar), 1064 and 1065 (Sen. Plumb), 1067

(Sen. Williams).

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. 1778, 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).

5 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).

anna

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.

18 It must have been contemplated by Congress that the opening

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 thereto 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., 1st 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 XXXI.

odin!

l3a

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.

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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.