Amicus Curiae Brief — Hodel v. Irving

No. 85-637

IN THE

Supreme Court of the United States

October Term, 1985

DONALD P. HODEL, SECRETARY. DEPARTMENT

OF INTERIOR, AND HIS AGENTS, ASSIGNS

AND SUCCESSORS IN OFFICE

Appellant.

.

MARY IRVING, PATRICK PUMPKIN SEED,

EILEEN BISCONETTE AS GUARDIAN FOR DUANE

CROSS, ANTHONY CROSS, FAITH CROSS AND

ALL OTHERS SIMILARLY SITUATED,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE YAKIMA INDIAN NATION,

AS AMICUS CURIAE

JAMES B. Hovis, ESQ.

316 North Third Street

Post Office Box 487

Yakima, Washington 98907

(509) 575-1500

Attorney for Yakima Indian Nation

Amicus Curiae

TABLE OF CONTENTS

Page

I. INTEREST OF AMICUS CURIAE......... l

ee ae eed Cee la eee 4

RR ee 6

INDEX OF AUTHORITIES

CASES: ; Page

Cherokee v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ..... 5

Delaware Tribal Business Community v. Weeks,

Cs ont abe cewbas cane eenens 5

Loretto v. Teleprompter Manhattan CATV Corp.,

in en we ce cdseheenuae 4

Lynch v. United States, 292 U.S. 571 (1934) .......

Simmons v. Eagle Seelatsee, 244 F. Supp. 808

(E.D. Wash. 1965) aff'd, 384 U.S. 209 (1966) .

United States v. Candelaria, 271 U.S. 432 (1926) ...

United States v. Kagama, 118 U.S. 375 (1886). .....

United States v. Mitchell, 463 U.S. 206 (1983). .....

United States v. Sioux Nation, 448 U.S.

Se ee a dwe ete sé 5,6

ann A” WN

Constitution, statutes, rules and regulatious:

U.S. Const.

art. 1, § 10

Comtpnst CANS. oo cc ctédienseesnee

amend. V

Pe Peas Ce. « occkccscussabuel

Act of Aug. 9, 1946, ch. 933, § 7, 60 Stat.

968 (codified as amended at 25 U.S.C.

607) (§ 7 amended by Act of Dec. 31,

1970, Pub. L. 91-627, 87 Stat. 1874)........

Act of July 28, 1955, ch. 423, 69 Stat. 392,

as amended by the Act of Aug. 31, 1964,

Pub. L. 88-540, 78 Stat. 748 (codified

at 25 U.S.C. §§ 608-608c).................

Act of Aug. 31, 1964, Pub. L. 88-540, 78

A ree

Act of Dec. 31, 1970, Pub. L. 91-627, 87

ee

Act of Oct. 30, 1984, Pub. L. 98-608, 98 Stat.

3173, 23 U.S.C. GGae, § Aer sh 0cssheneenues

Land Consolidation Act, 25 U.S.C. 2206, § 207 ....

TB UBL. GaaRe occ cccccccsscenscuueenneee

BP UK. Gio occ sncccecsccessseuueneee

Be Wes GE 6 ccc cncscsicaseenneeee isetecel

SOU BA. Bay 2 0c cccscccvceudeenabeeneeee

Treaties:

Treaty with the Yakimas, 12 Stat. 951 ...........

Miscellaneous:

S. Rep. No. 91-1384, 3 U.S. Cong. & Admin.

fe See rr ee

Page

No. 85-637

IN THE

Supreme Court of the United States

October Term, 1985

DONALD P. HODEL, SECRETARY, DEPARTMENT

OF INTERIOR, AND HIS AGENTS, ASSIGNS

AND SUCCESSORS IN OFFICE,

Appellant,

v.

MARY IRVING, PATRICK PUMPKIN SEED,

EILEEN BISCONETTE AS GUARDIAN FOR DUANE

Cross, Ai THONY CROSS, FAITH CROSS AND

ALL OTHERS SIMILARLY SITUATED,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE YAKIMA INDIAN NATION,

AS AMICUS CURIAE

I.

INTEREST OF AMICUS CURIAE

The Confederated Tribes and Bands of the Yakima Ind-

ian Nation, herein referred to as the Yakima Indian Na-

tion, is an Indian tribe located in the south central part of

the State of Washington. The Yakima Indian Nation’s

status as a sOvereign entity was reserved in the Treaty with

the Yakimas, which was executed on June 9, 1855, ratified

on March 8, 1859, and proclaimed on April 18, 1859. (12

Stat. 951.) From lands exceeding ten million acres ceded to

the United States, the Treaty with the Yakimas reserved

the Yakima Indian Reservation. The Yakima Indian Re-

servation has a total area of 1,367,105 acres. Within said

Yakima Indian Reservation, the Yakima Indian Nation

owns 842,978 acres. Individual Indians are allotted

274,988 acres and the remaining 249,416 acres are held in

non-trust or non-restricted title by others — mostly nor-

Indians.

Since 1955, under the Act of July 28, 1955, ch. 423, 69

Stat. 392, as amended by the Act of August 31, 1964, Pub.

L. 88-540, 78 Stat. 748 (codified at 25 U.S.C. Secs.

608-608c), the Yakima Indian Nation has expended over

fifty-five million dollars to purchase trust lands from

allottees under a land consolidation enterprise.

Under Section 7 of the Act of August 9, 1946, ch. 933

Sec. 7, 60 Stat. 968 (codified as amended at 25 U.S.C.

607), the Yakima Indian Nation acquired the interests of

allottees whose heirs did not possess the requisite blood

quantum specified by this Act without compensation.

Simmons v. Eagle Seelatsee, 244 F. Supp. 808 (E.D.

Wash. 1965), aff'd, 384 U.S. 209 (1966). The above

described Section 7 was amended by the Act of December

31, 1970, Pub. L. 91-627, 87 Stat. 1874, to provide allot-

tees’ heirs with compensation for the interests flowing to

the Yakima Indian Nation. Congressional legislative his-

tory indicates that the basis for this amendment was that

Congress considered the taking unfair. Senate Report No.

91-1384, 3 U.S. Cong. & Admin. News ’70, p. 5783.

Under this amended Section (codified as amended at 25

U.S.C. 607), the Yakima Indian Nation has acquired, and

is now purchasing, the interests of members and non-

—

members not possessing the necessary one-fourth blood

quantum of the antecedent tribes and bands. This action

provides for the consolidation of fractionated interests,

fosters fair enrollment practices and provides fair compen-

sation for these tribally-acquired interests. All without the

internal disruption that results from these interests being

acquired without compensation.

The Yakima Indian Nation’s land consolidation and en-

rollment practices have promoted land consolidation,

therby reducing federal expenditures regarding admini-

stration of fractionated interests in Yakima Reservation

allotments. As the Government has noted, reduction of

federal expenditures is a primary purpose of Section 207

of the Land Consolidation Act, 25 U.S.C. 2206, and Sec-

tion 207 of the Act of October 30, 1984, Pub. L. 98-608,

98 Stat. 3173, (25 U.S.C. 483a). Jurisdictional Statement

pp. 7, 22 n.5. The Government appeal goes even further

and notes that ‘‘[t]he legislative history.of Section 207

strongly reflects Congress’ intention that the Act not result

in any cost to the United States.’’ The Government’s pre-

sentation is a clear showing that Section 207 lacks any real

tie to the trust obligation of the United States.

The Yakima Indian Nation’s land consolidation plan

operating under the foregoing federal laws relating to the

Yakima Indian Nation, codified at 25 U.S.C. Sections

607, 608-608c, fosters consolidation ard further provides

that the heirs receive compensation for tribally-acquired

interests. The provisions now before this Court in 25

U.S.C. 2206, save the United States monies involved in ad-

ministering fractionated interests; but these provisions do

so arbitrarily and in violation of the United States’

fiduciary responsibility, thus unconstitutionally placing

the entire financial burden of this federal saving on indivi-

dual Indians. It is this effect of 25 U.S.C. 2206 on the

members of the Yakima Indian Nation and other Indians

that the Yakima Indian Nation opposes and is the reason

that the Government’s appeal is opposed in this brief.

Il.

ARGUMENT

The holding of the Court of Appeals for the Eighth Cir-

cuit is correct. The Constitution itself dictates respect for

settled economic arrangements by banning legislation that

impairs contractual arrangements or takes property with-

Out just compensation. Although the protection of settled

economic arrangements from federal legislation is not ex-

plicity within the Contract Clause, the Due Process Clause

of the Fifth Amendment has much the same effect. See

Lynch vy. United States, 292 U.S. 571 (1934). The protec-

tion that settled economic arrangements receive regards

taking without compensation is explicit in the final clause

of this Fifth Amendment. The Court of Appeals, like this

Court, knows a taking when it sees it and was not impress-

ed by the Government’s emphasis on de minimus. This

Court should affirm. See Loretto v. Teleprompter Man-

hattan CATV Corp., 458 U.S. 419 (1982).

Transcending the Court of Appeals’ determination of

an uncompensated taking, the holding of the Court of Ap-

peals should be sustained regardless of the existence or

non-existence of vested property interests or their taking.

Inherent in the Court of Appeals holding 25 U.S.C.

2206 unconstitutional is this Court’s requirement that the

constitutional legislative power of Congress — regarding

Indian property — must be tied rationally to the trust obli-

gations of the United States. The record in this case shows

just the opposite. The United States and Congress have

breached any fiduciary responsibility. Their conflict of in-

terest is recorded and overpowering. The unilateral plac-

ing the cost burden of consolidation for the financial bene-

fits of consolidation flowing to the trustee on these Indian

wards is contrary to this fiduciary relationship and is im-

permissible. Legalisms abound in the decisions below and

in the Government’s opening brief; but underlying the sec-

tion under attack is the bottom line that Congress abused

the trust responsibility to Indians that is the basis of its

legislative power over alienation of the trust properties in-

volved.

This guardian-ward relationship was first noted by this

Court in Cherokee v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

This Court has continued to construe statutes under this

indisputable existence of a general trust relationship be-

tween the United States and the Indian people. United

States v. Mitchell, 463 U.S. 206, 225 (1983).

Indeed it is this guardianship theory that this Court dis-

tinctly relied upon as the basis for congressional power

over Indians. United States v. Kagama, 118 U.S. 375

(1886). While this Court has not cited trust responsibility

as the sole source of congressional power since United

States v. Candelaria, 271 U.S. 432 (1926), this Court has

made it clear that the constitutional standard for judicial

review of Indian legislation is whether the legislation

under attack serves this fiduciary responsibility. Delaware

Tribal Business Community v. Weeks, 430 U.S. 73, 83-85

(1977).

In Delaware Tribal Business Community v. Weeks,

supra, this Court rejected arguments seeking to establish

that the power of Congress is so pervasive as to render its

legislation not subject to judicial consitutional review. In-

stead, this Court held that the constitutional standard for

judicial review was whether the legislation under attack

was ‘‘tied rationally to the fulfillment of Congress’ unique

obligations towards Indians’’. 430 U.S. at 85. Where Con-

gress is exercising its authority over Indians rather than

some other distinctive power, this trust obligation requires

that its statutes be based on a determination that the Ind-

ians will be protected. Otherwise, such statutes are not

rationally related to the trustee obligation. United States

v. Sioux Nation, 448 U.S. 471 (1980). The trustees’ con-

flict in the instant case is obvious.

Under the admitted facts of the attacked escheat section

enactment, Congress did not make good faith efforts to

protect its Indian wards and see that they receive full value

and be free from the burden of unfair restrictions. This is

the approved test of this Court in United States v. Sioux

Nation, supra. It is clear that Congress was more interest-

ed in reducing administrative obligations of the United

States than in protecting its wards. In other words, Con-

gress was looking out for the interests of the United States,

not those of its wards. Requiring that compensation be

given for the interests flowing to the tribes would have

been very easy for Congress to do. Congress has so provid-

ed in the legislation regarding interests flowing to the Yak-

ima Nation under land consolidation legislation pertaining

to the Yakima Reservation. 25 U.S.C. 607. The Govern-

ment describes the interests that are lost as de minimus. If

they are so de minimus, tribes could readily provide funds

for adequate compensation. Further, there was no show-

ing that Congress could not, in its own as well as its wards’

interests, provide funds for acquisition to reduce admini-

strative costs that was so clearly the primary geal of Con-

gress. In the enactment of 25 U.S.C. 2206, Congress was

fostering the interests of the United States, not its Indian

wards.

lil.

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

JAMES B. HOVIS, ESQ.

316 North Third Street

Post Office Box 487

Yakima, Washington 98907

Altorney for Yakima Indian Nation,

Amicus Curiae

DATED: April 30, 1986

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