Opposition Brief — South Dakota v. Bourland

FILED

No. 91-2051 nue S 1992

——— —E———eeEEEEeee

cme OF CLERK

OFFIOS . See

In The Tove

Supreme Court of the United States

October Term, 1992

¢

STATE OF SOUTH DAKOTA, in its own

behalf, and as Parens Patriae,

Petitioner,

V.

GREGG BOURLAND, Personally and as Chairman

of the Cheyenne River Sioux Tribe and

DENNIS ROUSSEAU, Personally and as Director of

Cheyenne River Sioux Tribe Game, Fish and Parks,

Respondents.

+

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

¢

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

Scott B. McELroy

Counsel of Record

Bruce R. GREENE

GREENE, Meyer & McE-roy, P.C.

1007 Pear! Street, Suite 240

Boulder, Colorado 80302

(303) 442-2021

Mark C. Van NorMAN

Steven C. Emery

TimotHy W. JorANKO

Cheyenne River Sioux Tribe

Office of the Attorney General

P.O. Box 590

Eagle Butte, South Dakota 57625

(605) 964-6686

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225 6964

OR CALL COLLECT (402) 342-2831

—_

S&S Fat Sy 4. 4

Ly fh~ <p

QUESTION PRESENTED

Whether the Act of September 3, 1954, ch. 1260, 68

Stat. 1191, divested the Cheyenne River Sioux Tribe of its

authority to regulate non-Indians hunting and fishing on

reservation lands which were acquired by the United

States for the construction and operation of a federal

flood control project in light of: (1) the United States’

pledge to restore the Tribe to its condition prior to the

construction of the Reservoir; (2) the Tribe’s retention of

substantial rights in the acquired lands; and (3) the fact

that continued tribal authority is consistent with the pur-

poses for which the lands were acquired.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........50+.s05s5500 eee i

TABLE OF CONTENTS... ...s«0s0sesus een ii

TABLE OF AUTHORITIES. .....s0+s0ss0400eeeeee iii

INTRODUCTION .. .... «26600050005 oul elena 1

STATEMENT OF THE CASE........scsceess eee 3

REASONS FOR DENYING THE WRIT............. 9

|. THIS CASE RAISES NO ISSUE OF GENERAL

APPLICABILITY ......<ss0000055 eee 9

li. THE COURT OF APPEALS PROPERLY APPLIED

THE DECISIONS OF THIS COURT............ 11

A. Montana v. United States and Brendale v. Con-

federated Tribes and Bands of the Yakima Indian

Nation, do not control this case ........... 11

B. The Court of Appeals used the Standards

Established by this Court to Determine the

Intent of Congress. .....:0ssesseesee eee 16

Ill. THE COURT OF APPEALS PROPERLY CON-

CLUDED THAT THE CHEYENNE RIVER ACT

DID NOT DIVEST THE TRIBE OF JURISDIC-

TION OVER NON-INDIANS HUNTING AND

FISHING ON FORMER TRUST LANDS ON

THE TAKEN ARBA .....+:++0ssses00 see 18

IV. THERE IS NO REASON FOR THIS COURT TO

REVIEW THE COURT OF APPEALS’

REMAND OF THE QUESTION OF TRIBAL

AUTHORITY OVER FORMER FEE LANDS IN

THE TAKEN AREA .....+s00¢seseeeee eee 21

CONCLUSION .........50000055 655s enn 22

TABLE OF AUTHORITIES

Page

Cases

Antoine v. Washington, 420 U.S. 194 (1975)........... 16

Blake v. Arnett, 663 F.2d 906 (9th Cir. 1981).......... 14

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989)...... passim

California v. Cabazon Band of Indians, 480 U.S. 202

Teese eases cbaecccsvcrcecorcccccccs 15

County of Yakima v. Confederated Tribes and Bands of

the Yakima Nation, 502 U.S. __, 116 L.Ed.2d 687

EE EEE ee 16

Escondido Mut. Water Co. v. La Jolla Band of Mission

GD eee 10

ETSI Pipeline Project v. Missouri, 484 U.S. 495

CCT cle svceseccecesceseccccersece: 5

lowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)..... 17, 20

Lower Brule Sioux Tribe v. South Dakota, 711 F.2d

809 (8th Cir. 1983), cert. denied, 464 U.S. 1042

OP eee 9, 13, 16

Menominee Tribe v. United States, 391 U.S. 404

Tee el tc cco cee nccbecscvcecs 17

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

Gees édeee. a 17, 19, 20, 21

Mescalero Apache Tribe v. Jones, 411 U.S. 154 (1973) ....14

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

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

ee ees ssenedevveveseeccccescce: 21

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).... 16

Sioux Tribe of Indians v. United States, 316 U.S. 317

ee tener cecccssccsestcccscceces 3

iv

TABLE OF AUTHORITIES - Continued

Page

Solem v. Bartlett, 465 U.S. 463 (1984) .............. 4, 19

South Dakota v. Bourland, 949 F.2d 984 (8th Cir.

DOO ci doncendected (0eendccesenwexnevende cass passim

United States v. 2005.32 Acres of Land, More or Less,

Civil No. 722 N.D. (S.D. 1958), reprinted in H.R.

Rep. No. 1888, 85th Cong., 2d Sess. 35 (1958)...... 5

United States v. Dion, 476 U.S. 734 (1986)............ 17

United States v. Winnebago Tribe of Nebraska, 542

- B® Ff he SPI err Tr ere cr Tere 5

Washington v. Washington State Commercial Pas-

senger Fishing Vesse! Ass'n, 443 U.S. 658 (1979),

modified on other grounds, 444 U.S. 816 (1979)...... 17

STATUTES AND TREATIES

Act of May 29, 1908, ch. 216, 35 Stat. 444............ 4

Act of March 2, 1889, ch. 405, § 4, 25 Stat. 888....... 3

Act of September 3, 1954, ch. 1260, 68 Stat. 1191 ... passim

Act of September 30, 1950, ch. 1120, 65 Stat. 1093 ..... 6

Federal Power Act, 16 U.S.C. § 797(e) (1988)........ 10

Flood Control Act of December 22, 1944, ch. 66, 58

Be: GE cacunévececcsddascdbacnsubatenseubaeuece 5

General Allotment Act of 1887, 25 U.S.C. § 331..... 14

Indian Financing Act of 1974, 25 U.S.C.

i POOPED CODER i cinecuccccecschccsocessdseccses 15

Vv

TABLE OF AUTHORITIES — Continued

Page

Indian Reorganization Act of 1934, 25 U.S.C.

OE” ET Pe aes See eee 4

Indian Self-Determination and Education Assis-

tance Act, 25 U.S.C. § 450-459m (1988 & Supp.

RR RT gaan, eee PDE a ee Nice mee 15

M IscELLANEOUS

Se Ge, TE. Gee Cann cccawwevdasuscccusan 15

Acquisition of Lands and Rehabilitation of Cheyenne

River Sioux Reservation, South Dakota and for

Other Purposes: Hearings on H.R. 2233 and S. 655

Before the Comm. on Interior and Insular Affairs

Joint Senate and House Subcomm. on Indian

Affairs, 83d Cong., 2d Sess. 289 (1954) ............ 19

Constitution and By-Laws of the Cheyenne River

ey ee ie ED CG ok de densesectccewnees 4

Feuix S. CoHen, HANDBOOK oF FEDERAL INDIAN Law

PY cass ColedecietestunelsanepVeeaeneahs 15

Gary E. Moutton, THE JoURNALS OF THE LEWis AND

ey ID aes 3

H.R. Exec. Doc. No. 104, 51st Cong., 2 Sess. (1890) ..... 3

H.R. Rep. No. 1047, 81st Cong., Ist Sess. 4 (1949)..... 5

H.R. Rep. No. 2484, 83d Cong., 2d Sess. 5 (1954)... passim

S. Rep. No. 2489, 83d Cong., 2d Sess. 1 (1954)...... 18

Special Message to the Congress on Indian Affairs

(Richard Nixon), Pub. Papers 564 (1970) .......... 15

No. 91-2051

°

In The

Supreme Court of the United States

October Term, 1992

¢

STATE OF SOUTH DAKOTA, in its own

behalf, and as Parens Patriae,

Petitioner,

GREGG BOURLAND, Personally and as Chairman

of the Cheyenne River Sioux Tribe and

DENNIS ROUSSEAU, Personally and as Director of

Cheyenne River Sioux Tribe Game, Fish and Parks,

Respondents.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

e

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

«

INTRODUCTION

In this case, a unanimous Court of Appeals ruled that

the Cheyenne River Sioux Tribe may continue to regulate

non-Indian hunting and fishing on the reservation lands

which were taken from the Tribe and its members by the

federal government for use in connection with the con-

struction and operation of Oahe Reservoir. South Dakota v.

Bourland, 949 F.2d 984 (8th Cir. 1991) (reprinted in the

Petitioner's Appendix (hereinafter “App.”) at A-1). The

lands in question were acquired by the United States

under special federal legislation, the Act of September 3,

1954, ch. 1260, 68 Stat. 1191 (hereinafter “the Cheyenne

Kiver Act” or “the Act”) (App. A-195), which had two

purposes: (1) “the acquisition of [Indian] lands .

required for the reservoir... [and (2)] the rehabilitation

of the Indians of the Cheyenne River Sioux Reservation.”

ld. at 993 (App. A-33). The United States also obtained

lands on the Reservation from non-Indians under the

Flood Control Act of December 22, 1944, ch. 665, 58 Stat.

887, and the Fighth Circuit remanded the question of

whether the Tribe could regulate such activities on the

tormer non-Indian lands used in connection with the

reservoir. The acquired tribal lands along with those

obtained from non-Indians are commonly referred to as

“the taken area.”

In recognizing the continuing tribal authority over

the former trust lands, the appellate court examined the

Cheyenne River Act to ascertain its underlying intent and

concluded that nothing in the language of the Act or its

history suggested that Congress meant to diminish the

Tribe's jurisdiction over hunting and fishing on the lands

acquired by the federal government from the Tribe and its

members, Rather, as the Court of Appeals explained, “the

purpose of the Act was simply to enable the United States

to acquire the land needed for the construction of Oxhe

Dam and Reservoir and to do so with as little disrupuon

as possible to the life of the Tribe.” South Dakota v. Bour-

land, 949 F.2d at 994 (A-40).

The Court of Appeals carefully considered the exten-

sive authority of this Court related to the retained author-

ity of Indian tribes and the application of those principles

in instances in which a tribe seeks to regulate the activ-

ities of non-Indians. Because the lower court correctly

applied the prior decisions of this Court in analyzing the

Cheyenne River Act which only applies to the Cheyenne

River Reservation and because the activities in question

take place on the lands of the Tribe’s guardian, the United

States — which supported the Tribe’s position in both the

district court and the Court of Appeals - there is no need

for this Court to review the decision of the Court of

Appeals.

STATEMENT OF THE CASE

The eastern boundary of the Cheyenne River Reser-

vation is the “center of the main channel of the Missouri

River.” Act of March 2, 1889, ch. 405, § 4, 25 Stat. 888;

compare Sioux Tribe of Indians v. United States, 316 U.S.

317, 319 (1942). Historically, the River and bottom lands

were the heart of tribal life on the Reservation. Minnicou-

jou, the name of one of the four bands of tne Cheyenne

River Sioux, translates as “Planters by the water.” Gary E.

MouLTon, THE JOURNALS OF THE Lewis AND CLARK ExrEeDiTION

109 n.2 (1983). The original Cheyenne River Indian

Agency, was near the site where Charger’s Band of Sans

Arc Sioux, another Cheyenne River Band, were located

along the bottom lands of the River. H. R. Exec. Doc. No.

104, 51st Cong., 2 Sess. (1890). Although the Tribe lost

lands to non-Indian homesteading under the Surplus

Lands Acts, the majority of the reservation lands along

the Missouri River were not opened to non-Indian home-

steading and the River and its bottom lands continued to

play a vital role in tribal life until they were flooded by

Oahe Reservoir. See Act of May 29, 1908, ch. 216, 35 Stat.

444.

The Tribe has continuously asserted jurisdiction over

“all hunting and fishing activities on the reservation”

including the area that is now held by its trustee, the

United States. District court opinion (A-72).' Under the

provisions of the Indian Reorganization Act of 1934, 25

U.S.C. §§ 461-479, the Tribe adopted a constitution which

was approved by the Secretary of the Interior and which

provided that “[t]he council shall pass ordinances for the

control of hunting and fishing upon the reservation... .

By-Laws, art. VII, § 2, Exh. 1. In 1937, the Tribal Council

enacted tribal ordinances, also approved by the Depart-

ment of the Interior, which regulated hunting, fishing and

trapping and which governed tribal members and “any

””

nonmenber... within the Reservation.” Exh. 3. The tribal

constitution provided for tribal jurisdiction throughout

the reservation which included non-Indian lands. Solem v.

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

The Tribe’s early conservation efforts were instru-

mental in the restoration of the wildlife on the Reserva-

tion and received national recognition. Exh. 61. At the

' The district court opinion is not reported. It is reprinted at

App. A-56 to A-160.

time of the passage of the Cheyenne River Act, hunting

and fishing were important tribal activities. See, e.g., H.R.

Rep. No. 1047, 81st Cong., Ist Sess. 4 (1949) (Interior

Report stating that the construction of Oahe Reservoir

would result in the loss of “(wildlife which provides

important feed for over 100 families” on the Cheyenne

River Reservation).

The Cheyenne River Act was passed to enable the

United States to acquire Indian lands on the Cheyenne

River Sioux Reservation for the construction of Oahe

Dam and Reservoir, which were part of the comprehen-

sive plan for the improvement of the Missouri River

Basin authorized under section 9 of the Flood Control Act

of December 22, 1944, 58 Stat. 887, 891. H.R. Rep. No.

2484, 83d Cong., 2d Sess. 1 (1954). “The stated purposes

of Lake Oahe were to allow ‘the irrigation of 750,000

acres of land in the James River Basin as well as to

provide useful storage for flood control, navigation, the

development of hydroelectric power, and other pur-

poses.’ ” ETSI Pipeline Project v. Missourt, 484 U.S. 495, 502

(1988), quoting S. Doc. No. 247, 78th Cong., 2d Sess. 3

(1944); see also section 10 of the Flood Control Act. The

recreational use of the Project was of little significance

and received only passing mention.

Although the Secretary of the Army was authorized

to acquire lands necessary for the project under section 3

of the 1944 Act, additional authority was required for the

acquisition of the Indian lands along the River. See United

States v. 2005.32 Acres of Land, More or Less, Civil No. 722

N.D. (S.D. 1958), reprinted in H.R. Rep. No. 1888, 85th

Cong., 2d Sess. 35 (1958); see also United States v. Win-

nebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976). The

Cheyenne River Act stemmed from lengthy negotiations

between the United States and the Tribe authorized by

the Act of September 30, 1950, ch. 1120, 64 Stat. 1093. See

H.R. Rep. No. 2484, supra. Although the Cheyenne River

Act allowed the United States to acquire Indian lands on

the Reservation, Congress expressed its intent to restore

the condition of the Indian people after taking their most

productive lands. In addition, a “[s]ignificant portion of

the ‘bundle of property rights’ [in the taken area] explic-

itly were preserved for the Tribe.” South Dakota v. Bour-

land, 949 F.2d at 993 (App. A-36).

When it passed the Cheyenne River Act, Congress

noted the disastrous impact the Act would have on the

Tribe. The Interior Committee explained that the con-

struction of the Oahe Dam and Reservoir would “result in

the flooding of over a third of a million acres of rich

bottom land along the Missouri River.” Indian families

would be “faced with forced evacuation before 1961,

when the project will be completed.” H.R. Rep. No. 2484

at 5-6. The sacrifice imposed on the Tribe was described

by the Committee:

Through no action of their own, the Indians

must give up their homeland, their homes will

be lost, their cattle raising industry will be

ruined, many of their subsistence pursuits will

be curtailed, their churches, schools, and social

life will be completely disrupted, the residue of

their lands will be reduced to a small fraction of

their present value.

Id. at 6. The prediction of the suffering of the Indian

people has proved true. See district court opinion (A-141

to A-142).

The Tribe has consistently exercised regulatory

authority over the taken area. That authority is directly

related to the retained tribal interests in the taken area

where, as contemplated by the Act, the Tribe has sole

responsibility for the leasing of the lands. Non-Indian

hunting directly effects the Tribe’s ability to use the taken

area for the grazing purposes authorized under the Act.

As the district court held, non-Indians hunting and fish-

ing on the taken area have harassed tribal cattle, failed to

close gates and have let down wires on fences. District

court opinion (App. A-78)?

The Tribe likewise has a substantial interest in the

fish and wildlife that is harvested on the taken area.

“Virtually all the land adjacent to the taking area is trust

land.” Id. at (App. A-77)}. Thus, “[t]ribal lands contribute

to the well-being of the deer herds on the taking

area... ,” Id, and “[djeer harvested by nonmember

hunters on the taken area... reduce the amount of deer

available to tribal members.” Id. at (App. A-75). Without

the early tribal regulations, there might not be any deer

herds at all. There is a major walleye fishery on the

’ The district court rationalized this behavior by saying

that tribal members engaged in the same conduct. But there was

no testimony that the problems created by members were any-

where near as pervasive as those by non-Indians. In any event,

the Tribe has authority to curtail the supposed activities of tribal

members. The Court of Appeals never addressed the Tribe's

challenge to the district court determinations along these lines.

Reservation which comes from natural recruitment from

the Reservation and the adjacent waters of the Standing

Rock Reservation. Fielder, TR at 85. In fact, the recruit-

ment on the two Reservations supplies the fishery for the

entire upper third of the reservoir. Even the eggs for the

hatchery fish that supply the population in the remainder

of the reservoir are taken from Reservation waters.

Hanten, TR at 52.

Following a six day trial, the district court rejected

the State’s argument that the Cheyenne River Act

resulted in the diminishment of the Reservation but con-

cluded that the Tribe and its officials were barred from

regulating nonmember hunting and fishing on the taken

area. District court opinion (A-159). The court also held

that the Tribe could not regulate nonmember hunting and

fishing on reservation lands which were no longer held in

trust. Id.

Supported by the United States as amici curiae, the

tribal defendants appealed the district court’s holding as

to the taken area. The tribal defendants did not appeal

the district court’s holding based on Montana v. United

States, 450 U.S. 544 (1981) and Brendale v. Confederated

Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408

(1989), that the Tribe had lost its authority to regulate

hunting and fishing on the non-Indian owned reservation

land outside the taken area.

The Court of Appeals determined that the Tribe

retained authority to regulate non-Indian hunting and

fishing on the former trust lands that are now part of the

federal taken area. South Dakota v. Bourland, 949 F.2d 984

at 995 (A-42). The court did not address the tribal defen-

dants’ challenges to the district court’s findings about the

impact on the Tribe of denying it regulatory authority on

these lands. The question of tribal authority over former

non-Indian lands on the taken area, however, was

remanded to the district court by the Eighth Circuit

which found the district court’s factual findings inade-

quate to deal with the issue. Id. at 995-96 (App. A-43 to

A-46). No trial has been held on remand.

¢

REASONS FOR DENYING THE WRIT

I. THIS CASE RAISES NO ISSUE OF GENERAL

APPLICABILITY

The decision below turns on the Court of Appeals’

interpretation of the Cheyenne River Act. South Dakota v.

Bourland, 949 F.2d at 991 (App. A-27). That Act was the

result of lengthy negotiations between the Tribe and rep-

resentatives of the United States and is unique to the

Cheyenne River Reservation. Indeed, each of the acts

authorizing the acquisition of lands from the tribes along

the Missouri River for use in the Flood Control Projects is

different in certain aspects. See Lower Brule Sioux Tribe v.

South Dakota, 711 F.2d 809, 821 n.13 (8th Cir. 1983), cert.

denied, 464 U.S. 1042 (1984). As the State acknowledges,

South Dakota has treated each differently. See Pet. at 41

n.13. Moreover, the Act is the product of the particular

history of the exercise of tribal jurisdiction over hunting

and fishing on the Cheyenne River Reservation where,

10

with the approval of the Secretary of the Interior, the

Tribe had actively sought to restore game populations

and to manage the reservation wildlife resources for

many years prior to the passage of the Act. The Court of

Appeals carefully analyzed the language of the Act, its

history, and its surrounding circumstances to conclude

that the Tribe retained authority over non-Indians hunt-

ing and fishing on former trust land on the taken area

following the passage of the Cheyenne River Act.

South Dakota and the amici curiae States —- none of

whom presented their views to the Court of Appeal -

overreach when they argue that the Court of Appeals’

decision opens the door to widespread litigation over the

rights of tribes to regulate non-Indian activities with

regard to federal lands within Indian Reservations. That

question turns on the intent of Congress, as the Court of

Appeals acknowledged.

Congress has treated the acquisition of tribal lands

and resources differently, depending on the purposes for

which the tribal interests were acquired. For example,

under the Federal Power Act, 16 U.S.C. § 797(e) (1988),

the Federal Energy Regulatory Commission may issue

hydroelectric licenses, even when the facilities are located

on Indian Reservations. The Power Act requires the Com-

mission to find that such licenses are consistent with the

purposes for which the Reservation was created. Id. See

Escondido Mut. Water Co. v. La Jolla Band of Mission Indians,

466 U.S. 765 (1984). Significantly, the Commission is

expressly authorized to condition licenses with regard to

the regulation and use of wildlife located within the

license boundary. 16 U.S.C. § 797(e) (1988).

1]

The upshot is that each federal acquisition of tribal

land must be judged independently in light of the con-

gressional purposes for the federal project in question.

That is exactly the course followed by the Court of

Appeals. There is no need for this Court to review the

decision below because that decision interprets legisla-

tion that is applicable only to the Cheyenne River Indian

Reservation and raises no issue of general significance.

Il. THE COURT OF APPEALS PROPERLY APPLIED

THE DECISIONS OF THIS COURT

A. Montana v. United States and Brendale v. Con-

federated Tribes and Bands of the Yakima Indian

Nation, do not control this case.

South Dakota is wrong when it argues that the lower

court failed to pay proper deference to the decisions of

this Court in Montana v. United States, 450 U.S. 544 (1981)

and Brendale v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S. 408 (1989).° The Court of Appeals

conscientiously analyzed and applied those opinions but

concluded that they did not forclose continued tribal

authority in the circumstances before it. See South Dakota

v. Bourland, 949 F.2d at 991 (App. A-24 to A-27). In decid-

ing that it must consider the congressional intent under-

lying the Cheyenne River Act, the Court of Appeals

* As noted above, the district court relied on the teachings

of those two cases to foreclose the Tribe from regulating hunting

and fishing on non-Indian lands outside the taken area. The

tribal defendants did not appeal that portion of the trial court's

ruling.

12

quoted Justice White’s plurality opinion in Brendale, 492

U.S. at 422-23, discussing this Court’s opinion in Montana,

450 U.S. at 559:

We analyzed the effect of the Allotment Act

on an Indian tribe’s treaty rights to regulate

activities of nonmembers on fee lands in Mon-

tana... . [W]e concluded that “treaty rights with

respect to reservation lands must be read in

light of the subsequent alienation of those

lands.” In Montana, as in the present cases, the

lands at issue had been alienated under the

Allotment Act, and the Court concluded that

“li]t defies common sense to suppose that Con-

gress 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.”

South Dakota v. Bourland, 949 F.2d at 991 (App. A-26 to

A-27), quoting Brendale, 492 U.S. at 422-23 (citations omit-

ted) (emphasis added). Thus, the Eighth Circuit’s analysis

of the regulatory question was premised directly on this

Court’s reasoning in both Montana, 450 U.S. 544, and

Brendale, 492 U.S. 408.4

Montana, 450 U.S. 544, and Brendale, 492 U.S. 408,

construed the policy of the allotment acts as directed

towards the elimination of tribal governmental authority

4 Incredibly, South Dakota attacks this aspect of the lower

court decision on the basis that the statement in Montana about

the effect of the allotment acts was only a footnote in response to

the views of the lower court in that decision. Pet. at 26-27. South

Dakota never addresses Justice White’s clear statement in Bren-

dale on which the Court of Appeals actually relied.

13

and concluded that the affected tribes no longer had

authority over lands which passed out of Indian owner-

ship as a result of legislation enacted pursuant to that

policy. Montana, 450 U.S. at 559; Brendale, 492 U.S. at 423

(White, J.), 437 (Stevens, J.). The Court of Appeals cor-

rectly refused to accept South Dakota’s reading of those

cases — repeated here — as establishing a per se rule that

the removal of tribal lands from trust status automatically

obviates tribal jurisdiction over non-Indian activities on

the lands and that there is no need to ascertain congres-

sional intent in that regard. Instead, the Court of Appeals,

consistent with the long-standing jurisprudence of this

Court, examined the subsequent alienation of the lands in

the Cheyenne River Act to resolve the question before it.5

The Cheyenne River Act is unequivocal that its sole

purpose was to acquire the lands required for the con-

struction and operation of Oahe Dam and Reservoir. See

Lower Brule Sioux Tribe v. South Dakota, 711 F.2d at 820

(“[T]he reservation lands were taken for flood control

projects rather than for settlement.”). That task was to be

» For the first time in this case, South Dakota, joined by the

amici States, advocates in its Petition that Montana stands for

the proposition that the Tribe’s power to regulate stems only

from its power to exclude and that once the Tribe is divested of

its exclusionary authority, it may not continue to regulate the

use of reservation resources on former trust lands now held by

the United States. The short answer is that Montana does not

address the question presented here. Nor is there any indication

in Montana that when, by agreement with the United States, a

tribe preserves certain interests in lands in which it originally

had complete title, it may not continue to exercise regulatory

authority over the use of those lands, even if it may not com-

pletely exclude non-Indians from the lands.

14

accomplished under a policy of restoring the Indian peo-

ple of the Cheyenne River Reservation “to a condition not

less advantageous” than prior to the Act. 68 Stat. at 1192

(App. A-200). There is no tension between the purposes

for which the United States acquired the reservation

lands and the continued tribal jurisdiction recognized by

the appellate court.

The Tribe also unquestionably retained substantial

interests in the lands to which the United States took title:

In section VI, the Tribe reserved its mineral rights in the

area (App. A-201); under section VII, the Tribe has the

right to all timber in the area (App. A-202); and; under

section X, the Tribe has the right to use the land for

grazing as well as hunting and fishing. (App. A-205)

These reserved interests and rights to use the land are

entitled to great weight in analyzing the retained tribal

sovereignty over the land in question since “ ‘use’ is

among the ‘bundle of privileges that make up property or

ownership’ of property. ... “ Mescalero Apache Tribe v.

lones, 411 U.S. 145, 158 (1973) (Supreme Court holds that

New Mexico may not apply its compensating use tax to

tribal improvements on off-reservation land leased by the

tribe )

Thus, the Cheyenne River Act stands in stark con-

trast to the General Allotment Act of 1887, 25 U.S.C.

§ 331, and its progenies which are analyzed in Montana,

450 U.S. 544, and Brendale, 492 U.S. 408, and which have

»een construed to divest tribes of all their interests in the

iands which passed out of Indian ownership and to allow

non-Indians to obtain unrestricted title to reservation

lands. Blake v. Arnett, 663 F.2d 906, 911 (9th Cir. 1981).

15

Further, unlike the legislation in Montana, 450 U.S. 544,

and Brendale, 492 U.S. 408, which was aimed at the

destruction of tribal governments, the passage of the

Cheyenne River Act followed the repudiation of the allot-

ment policy and the reaffirmation of tribal sovereignty in

the Indian Reorganization Act of 1934, ch. 576, 48 Stat.

984 (codified as amended in scattered sections of 25

U.S.C.). See Montana, 450 U.S. at 559 n.9.6

To conclude, the Court of Appeals was correct in

refusing to apply the holdings in Montana, 450 U.S. 544,

and Brendale, 492 U.S. 408, to this case without consider-

ing the purposes of the Cheyenne River Act.

* South Dakota also errs when it attempts to invoke the

termination policy as a component of the Cheyenne River Act.

First, the State is incorrect in asserting that Congress meant the

Cheyenne River Act to constitute a back-door termination act.

The expressed purpose of the Act was to restore the Tribe to the

condition which existed prior to the Act. (App. A-200) Thus, the

most that can be said is that those in Congress who favored the

termination policy contemplated that at some future date it might

be sought by the Tribe. See 100 Cong. Rec. 13,160 (1954). Con-

gress and the executive branch have subsequently rejected the

termination policy. Indian Financing Act of 1974, 25 U.S.C.

§§ 1451-1543 (1988), Indian Self-Determination and Education

Assistance Act of 1975, 25 U.S.C. § 450-450m, Special Message to

the Congress on Indian Affairs (Richard Nixon), Pub. Papers 564

(1970); see generally Feux S. Conen, HANDBOOK OF FepeRAL INDIAN

Law 184-88 (1982 Ed.); see also California v. Cabazon Band of

Indians, 480 U.S. 202, 216-17 (1987) (President Reagan’s 1983

Statement on Indian policy, reaffirming the self-determination

policy for tribes).

16

B. The Court of Appeals used the Standards Estab-

lished by this Court to Determine the Intent of

Congress.

The established canon of construction to be applied

to legislation such as the Cheyenne River Act in which

the federal government acquires rights from Indian tribes

is that “the wording of treaties and statutes ratifying

agreements with the Indians is not to be construed to

their prejudice.” Antoine v. Washington, 420 U.S. 194, 199

(1975) (citations omitted). “The construction, instead of

being strict, is liberal; doubtful expressions, instead of

being resolved in favor of the United States, are to be

resolved in favor of a weak and defenseless people, who

are wards of the nation, and dependent wholly upon its

protection and good faith.” Id. at 200, quoting Choate v.

Trapp, 224 U.S. 665, 675 (1912). See also County of Yakima v.

Confederated Tribes and Bands of the Yakima Indian Nation,

502 US. __, 116 L.Ed.2d 687, 704 (1992). Those instruc-

tions are particularly applicable here since the Cheyenne

River Act was the product of actual negotiations between

the Tribe and the federal government.

The Court of Appeals properly utilized these long-

standing rules of construction, citing to its earlier deci-

sion in Lower Brule, 711 F.2d 809, where it had previously

resolved the question of whether the State could regulate

tribal members hunting and fishing on the federal lands

on the Lower Brule Reservation. South Dakota v. Bourland,

949 F.2d at 990 (App. A-23). The Eighth Circuit also

invoked this court’s caveat in Santa Clara Pueblo v. Mar-

tinez, 436 U.S. 49, 60 (1978) that “a proper respect for both

tribal sovereignty itself and for the plenary authority of

Congress in this area cautions that we tread lightly in the

17

absence of clear indications of legislative intent.” South

Dakota v. Bourland, 949 F.2d at 991 (App. A-23 to A-24).

See also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 152

(1982) (Because there was “no ‘clear indications’ that

Congress had implicitly deprived the tribe of its power to

impose the severance tax ... [the Tribe retained] its

inherent authority to tax mining activities on its lands,

whether this authority derives from the Tribe’s power of

self-government or from its power to exclude.”).

Strangely, the State limits its contention that the

Court of Appeals applied the wrong standard to examine

the Cheyenne River Act to the lower court’s citation of

United States v. Dion, 476 U.S. 734 (1986). But in its hold-

ing that there must be “clear indications” of congres-

sional intent to deprive a tribe of its right to regulate the

use of reservation resources by non-Indians, the Eighth

Circuit also cited Washington v. Washington State Commer-

cial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979),

modified on other grounds, 444 U.S. 816 (1979), and Men-

ominee Tribe v. United States, 391 U.S. 404 (1968), along

with references to both lowa Mut. Ins. . ‘aPlante, 480

U.S. 9 (1987) and Merrion, 455 U.S. 130. — uth Dakota v.

Bourland, 949 F.2d at 990-91, 994 (App. A-22 to A-25, A-40

to A-41). The lower court was correct in its use of those

decisions, which all discuss the standard to be used when

subsequent legislation must be construed with earlier

treaty rights — precisely the question before it.

18

Ill. THE COURT OF APPEALS PROPERLY CON-

CLUDED THAT THE CHEYENNE RIVER ACT

DID NOT DIVEST THE TRIBE OF JURISDIC-

TION OVER NON-INDIANS HUNTING AND

FISHING ON FORMER TRUST LANDS ON THE

TAKEN AREA

As the Court of Appeals concluded, in passing the

Cheyenne River Act, Congress gave no indication that it

intended to divest the Tribe of its authority to regulate all

hunting and fishing on the lands which were taken from

the Tribe. The Act contains only one section in which the

United States acquires any interest in the taken area. The

language of that section establishes that the United States

took only the title to the land and cannot be read to

establish an intent to divest the Tribe of its sovereign

powers over the taken area.

The reading of the Act to accomplish only a transfer

of title - and not a divestiture of the existing regulatory

authority of the Tribe — is further confirmed by the Senate

and House Reports on the bill which describe the Act as

“Providing for the Acquisition of Lands By the United

States.” H.R Rep. No. 2484 at 1; S. Rep. No. 2489, 83d

Cong , 2d Sess. 1 (1954). The House Report unequivocally

states the purpose of the bill to be “reimbursing the

Indians for lands acquired. ...” H.R. Rep. No. 2484 at

2. And, of course, the Tribe retained substantial property

interests in the lands in question.

The Tribe’s continued authority to regulate hunting

and fishing on the taken area is supported by the legisla-

tive history of the Act. Perhaps most telling is the state-

ment of the attorney for the Tribe in the hearings leading

up to the bill that the Tribe had authority to regulate

19

hunting and fishing by non-Indians on its Reservation.”

Acquisition of Lands and Rehabilitation of Cheyenne River

Sioux Reservation, South Dakota and for Other Purposes.

Hearings on H.R. 2233 and S. 655 Before the Comm. on

Interior and Insular Affairs Joint Senate and House Subcomm.

on Indian Affairs, 83d Cong., 2d Sess. 289 (1954)

(unpublished) (“No white citizen of South Dakota can go

on this reservation and hunt unless he has first obtained a

license from the Tribal Council.”).

Congress’ response in the resulting legislation was

silence —- an overwhelming indication that it did not

intend to divest the Tribe of its authority to regulate non-

Indian hunting and fishing on the Reservation. Such

silence cannot support the conclusion advanced by South

Dakota and the amici States that by obtaining some of the

Tribe’s proprietary interests in the lands and thereby

modifying the Tribe’s right to exclude others from the

land, Congress necessarily — but sub silentio — divested

the Tribe of its regulatory authority. In Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130, this Court explained the differ-

ence between the sovereign authority of the Tribe and its

proprietary interests, stating:

It is one thing to find that the Tribe has agreed

to sell the right to use the land and take from it

valuable minerals; it is quite another to find that

the Tribe has abandoned its sovereign rowers

” By the time of the passage of the Act, it was clear that

lands which were not held for the benefit of the Tribe or its

members could still be part of the Reservation. At Cheyenne

River, there were substantial non-Indian lands within the reser-

vation boundaries. See Solem v. Bartlett, 465 U.S. 463.

20

simply because it has not expressly reserved

them through a contract.

Id. at 146; see also lowa Mut. Ins. Co. v. LaPlante, 480 U.S. at 18.

The argument by South Dakota and the amici States that

mere alienation is sufficient in all instances to divest a tribe

of any regulatory authority therefore is doubly defective.

First, it is not consistent with the prior decisions of this Court

that tribal regulatory authority is not founded simply on

tribal power to exclude. Merrion v. Jicarilla Apache Tribe, 455

U.S. at 146. Equally important, it ignores both the retained

tribal interests in the former trust lands and the fact that

even after Congress was advised of the Tribe’s claim of

regulatory authority over non-Indians hunting anywhere on

the Reservation (which had been approved by the Secretary

of the Interior), the Act contained no language curtailing the

exercise of such tribal authority on the taken area.®

In sum, the Cheyenne River Sioux Tribe may regulate

non-Indian hunting and fishing on its lands by virtue of its

* In arguing that the Act is not consistent with tribal reten-

tion of jurisdiction to regulate hunting and fishing on the

acquired land, the State places great weight on section 10 of the

Act, contending that it only grants the Tribe and its members the

right of free access to the taken area for hunting, fishing, and

grazing. No more was required since the Act took only the

Tribe's title to the land. Because the Tribe’s sovereign powers

continued unabated after enactment of the Act, the Tribe needed

to retain in the Act only the right of access in order to use the

resources of the taken area. Section X had been the subject of

opposition by the Corps of Engineers which had sought its

elimination, noting the complications it would cause. The Corps

asked that the tribal lands be treated the same as any other

obtained for use in the project. See H.R. Rep. No. 2484 at 13. The

Corps’ request was denied and the language of section X

remained intact.

21

“substantial control over the lands and the resources of its

reservation, including its wildlife.” New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324, 337 (1983). “[T]ribes in general

retain this authority.” Id. See also Merrion v. Jicarilla Apache

Tribe, 455 U.S. at 152. Because the Act was silent on the

question of tribal regulatory authority and because there is

no conflict between the continued exercise of that authority

and the purposes for which the lands were acquired by the

federal government, the trustee’s acquisition of tribal title to

the land in question by the United States did not result in the

loss of the tribal power to regulate the use of those resources

in which the Tribe has a retained interest.

IV. THERE IS NO REASON FOR THIS COURT TO

REVIEW THE COURT OF APPEALS’ REMAND OF

THE QUESTION OF TRIBAL AUTHORITY OVER

FORMER FEE LANDS IN THE TAKEN AREA

South Dakota urges this Court to review the Court of

Appeals’ order remanding the question of tribal jurisdiction

over former non-Indian land taken by the United States.

There is no need for this Court to review the interlocutory

order since the court of Appeals simply remanded the issue

to the district court, directing it to apply “the analysis used

by Justice White in his plurality opinion in Brendale.” South

Dakota v. Bourland, 949 F.2d at 995 (citations omitted) (App.

A-45). Finding the trial court’s factual findings inadequate,

the Eighth Circuit instructed the trial court to “undertake a

Montana analysis.” Id. at 995 (App. A-46). To be sure, the

Court of Appeals cautioned that the means by which the

Tribe lost title to the reservation lands in question must be

22

considered. Id. at 995 n.19 (App. A-45 n.19). But the analysis

directed by the Court of Appeals should be completed before

this Court considers whether to review the outcome.

.

CONCLUSION

In arguing for review of the decision of the Court of

Appeals, South Dakota never acknowledges the fundamental

and far-reaching differences between the Cheyenne River

Act and the General Allotment Act of 1887. This case does

not turn on the policies of the Allotment Acts, but instead

turns on the intent of Congress when it passed the Cheyenne

River Act which applies only to the Cheyenne River Indian

Reservation. The Eighth Circuit applied the well-established

rules of construction of this Court in concluding that Con-

gress did not divest the Tribe of its jurisdiction to regulate

hunting and fishing on the former trust lands on the federal

taken area when it passed the Cheyenne River Act. Further,

the lower court merely remanded to the district court the

question of jurisdiction over former non-Indian lands.

Accordingly, there is no need for this Court to review the

23

lower court’s decision and the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

Scott B. McELroy

Counsel of Record

Bruce R. GREENE

Greene, Meyer & McELroy, PC.

1007 Pearl Street, Suite 240

Boulder, Colorado 80302

(303) 442-2021

Mark C. Van NorMan

STteveEN C. EmMery

TimotHy W. JoraNnKko

Cheyenne River Sioux Tribe

Office of the Attorney General

P.O. Box 590

Eagle Butte, South Dakota 57625

(605) 964-6686

Counsel for Respondents