Amicus Curiae Brief — Hagen v. Utah

| Bupreme Court, U.S,

FILE D

No. 92-6281 JUN 18 1993

—_——_——— OFFICE OF THE CLERK

In The —)

Supreme Court of the United States

October Term, 1992

+

ROBERT P. HAGEN,

Petitioner,

STATE OF UTAH,

Respondent.

S

On Writ Of Certiorari

To The Utah Supreme Court

+

BRIEF OF THE NAVAJO NATION AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

}

Hers YAZZIE Paut E. Frve*

Attorney General NorpuHaus, Hattom, TayLor,

Navajo Nation Department TARADASH & Frye

of Justice Suite 1050

Post Office Drawer 2010 500 Marquette Avenue NW -

Window Rock, Navajo Albuquerque, NM 87102

Nation (AZ) 86515 (505) 243-4275

(602) 871-6343 Attorneys for Amicus Curiae

* Counsel of Record

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

OR CALL COLLECT (402) 42 2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................... ii

INTEREST OF THE AMICUS CURIAE ............. 1

SUMMARY OF THE ARGUMENT ................. 4

I da eh anes eer eh bid db-6desdecaeecee ce 6

I. THE DECISION BELOW RESTS ULTIMATELY

ON YAZZIE, A PANEL DECISION WHICH

EXPLICITLY REJECTED THE CONSIDERED

LEGAL CONCLUSIONS OF A PRIOR EN BANC

DECISION OF THE SAME COURT OF APPEALS

Il. YAZZIE’S CONCLUSION THAT USE OF THE

PHRASE “RESTORE TO THE PUBLIC

DOMAIN” PROVIDES PERSUASIVE EVI-

DENCE OF A CONGRESSIONAL INTENT TO

DIMINISH IS INCONSISTENT WITH THE

DECISIONS OF THIS COURT................. 9

Ili. AFFIRMANCE WOULD ENCOURAGE FUR-

THER ABUSE OF THE JUDICIAL PROCESS BY

STATE ATTORNEYS SEEKING TO CIRCUM-

VENT ESTABLISHED PRECEDENT SOLELY

FOR THE PURPOSE OF FORCING REVIEW BY

a ees ecnn cedescenctoccesetepecnss 15

INO LIIIOIN oo cece ccccccccccccccccccccccceucs 18

TABLE OF AUTHORITIES

Page

I. Cases

Amoco Prod. Co. v. Gambell, 480 U.S. 531 (1987) .10, 15

Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992)........ 3

Duro v. Reina, 495 U.S. 676 (1990)................... 3

Huffman v. Caterpillar Tractor Co., 908 F.2d 1470

te 8 SUC 17

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) .... 11

Kindred v. Union Pac. R.R., 225 U.S. 582 (1912)..... 10

Lockhart v. Fretwell, 113 S. Ct. 838 (1993)........... 16

Mattz v. Arnett, 412 U.S. 481 (1973)................. 12

McClanahan v. Arizona State Tax Comm’‘n, 411

UD. 166 (RGVED « «0 s008se0sc00eenenen ene 16

Negonsott v. Samuels, 113 S. Ct. 1119 (1993)......... 4

Oklahoma Tax Comm’ n v. Sac and Fox Nation, 113

ee, 5 Wepre 16

—— & Midway Coal Mining Co. v. Saunders,

IV 86- 1443 M (D.N.M. Aug. 22, 1988),

vd, 909 F.2d 1387 (10th Cir.), cert. denied, 498

US. BOGS (ROGGD «oo cccseciecstck6swaneee 3

Pittsburg & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (10th Cir.), cert. denied, 498 U.S.

DOES CRU: co ccccsesvdvssenedecenee passim

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ..... 9

Seymour v. Superintendent, 368 U.S. 351 (1962) ..... 12

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

iii

TABLE OF AUTHORITIES - Continued

Page

State v. Hagen, 802 P.2d 745 (Utah App. 1990),

rev'd, 191 Utah Adv. Rep. 26 (1992) ......... passim

State v. Perank, 191 Utah Adv. Rep. 5 (1992)... . passim

Union Pac. R.R. v. Harris, 215 U.S. 386 (1910)....... 10

United States v. Berryhill, 880 F.2d 275 (10th Cir.

1989), cert. denied, 493 U.S. 1049 (1990)........... 17

United States v. Grey Bear, 828 F.2d 1286 (8th Cir.

1987), eo reh’g denied, 836 F.2d 1086 (8th

Cir. 1987), vacated in part, 836 F.2d 1088 (8th

Cir. 1987), on reh’g, 863 F.2d 572 (8th Cir. 1988) .... 12

United States v. Kagama, 118 U.S. 375 (1886)........ 16

United States v. Spedalieri, 910 F.2d 707 (10th Cir.

EE LLL 17

EES SESE TED 17

United States v. Wounded Knee, 596 F.2d 790 (8th

Cir.), cert. denied, 442 U.S. 921 (1979) ............ 12

Utah Div. of State Lands v. United States, 482 U.S.

EEE 10, 14

Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.

1985) (en banc), cert. denied, 479 U.S. 994 (1986) passim

Washington v. United States Envtl. Protection

Agency, 752 F.2d 1465 (9th Cir. 1985) ............. 16

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)..... 16

iv

TABLE OF AUTHORITIES - Continued

Page

Il. Statutes

ae Se whnascanthounsdtenéuinudedensundnaane 11

Act of May 29, 1908, ch. 216 § 25, 35 Stat. 444, 457..... 2

Act of Sept. 19, 1964, § 10, 78 Stat. 982, 985 ........ 11

Ill. Executive Orpers

Executive Order No. 1000 (Dec. 30, 1908),

reprinted in III Charles J. Kappler, Indian

Affairs: Laws and Treaties 685 (1913) .............. 2

Executive Order No. 1284 (Jan. 28, 1911),

reprinted in II] Charles J. Kappler, Indian

Affairs: Laws and Treaties 686 (1913) .............. 2

IV. Orvner AuTHorities

18 Cong. Rec. 6954 (1882)............ 0000... 13

See Ole SE OE MSS ae ath eckeneneencceneceessieseess 7

Felix S. Cohen’s Handbook of Federal Indian Law

i PE, Ew vic ccenvccunecesbeecceses 17

Paul W. Gates, History of Public Land Law Devel-

S860 8 obsess éckdccscceedeuke cece 13, 14

Ili Charles J. Kappler, Indian Affairs: Laws and

ee ER ith hab bnnh siatiogitinned dhe ia dens 2

1B Moore’s Federal Practice | 0.404[4.-6] (1993) ...... 2

E. Louise Peffer, The Closing of the Public Domain

Pceendnedddeesdintsendsunnscdeesdsbakattinees 14

Public Land Statutes of the United States

SC 6600000400csansesielleesseseseuas 14

v

TABLE OF AUTHORITIES - Continued

Page

Public Land Statutes of the United States

Pt Psi cccbucdddbuddsdeecsedbaactssoanes 15

Report of the Public Lands Commission, S. Doc.

No. 189, 58th Cong. 3d Sess. (1905)............... 14

Restoration to Tribal Ownership of Ceded Colo-

rado Ute Indian Lands, 56 I.D. 330 (1938)......... 10

U.S. Pub. Land Comm’‘n, The Public Domain

PS AMAAbEbODRADAEENSA ee cAdenedbadeeeesdeksesus 13

Whether Surplus Lands in Uintah and Ouray Res-

ervation are Indian Lands, II Op. Sol. 1205

Meninnacendsadditiamesdeddaddchaednsdendceucues 10

No. 92-6281

S

In The

Supreme Court of the United States

October Term, 1992

>

ROBERT P. HAGEN,

Petitioner,

STATE OF UTAH,

Respondent.

S

On Writ Of Certiorari

To The Utah Supreme Court

o

BRIEF OF THE NAVAJO NATION AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

e

INTEREST OF THE AMICUS CURIAE

This case concerns whether use of the phrase “ restore

to the public domain” in federal legislation opening an

Indian reservation provides substantial and compelling

evidence of a congressional intent to disestablish that

reservation. The Tenth Circuit held that it does not and

that the Uintah reservation was not disestablished. Ute

Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en

banc), cert. denied, 479 U.S. 994 (1986) (“Ute”). The Utah

Supreme Court here held to the contrary and found that

the Uintah reservation was disestablished, relying on

State v. Perank, 191 Utah Adv. Rep. 5 (1992).

The Navajo Nation is vitally interested in the out-

come of this case. In 1908 and 1911, unallotted land in a

1.9 million acre part of the Navajo reservation in New

Mexico was “restored to the public domain” under a 1908

act of Congress.! The Navajo Nation initially prevailed in

litigation concerning the reservation status of this area,

but a panel of the Tenth Circuit reversed. Pittsburg &

Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir.),

cert. denied, 498 U.S. 1012 (1990) (“ Yazzie”). The opinion in

Yazzie acknowledged that neither the statute nor its

sparse legislative history adverted to reservation bound-

aries or jurisdictional matters. However, Yazzie sum-

marily rejected the factual findings of the district court,

constructed an “executive intent” which it “inferred” to

Congress, and concluded that use of the operative phrase

“restore to the public domain” extinguishes reservation

boundaries — dismissing the contrary holding of the en

banc court in Ute as “unexamined and unsupported.”

Yazzie, 909 F.2d at 1393-94 & n.7, 1395-96 & n.9, 1400, 1404

n.23 and 1419. Rehearing en banc was denied by an evenly

divided court.

Last week, on June 11, 1993, the district court held in

favor of the company on the remaining issues on remand

from Yazzie. The Navajo Nation seeks to preserve its

ability to urge successfully that the Tenth Circuit's ruling

on disestablishment in Yazzie should be reconsidered

under established law of the case principles. See 1B

* Act of May 29, 1908, ch. 216 § 25, 35 Stat. 444, 457. See

Executive Orders Nos. 1000 (Dec. 30, 1908) and 1284 (Jan. 28,

1911), reprinted in II] Charles J. Kappler, Indian Affairs: Laws and

Treaties 685-86 (1913).

Moore's Federal Practice % 0.404[4.-6] (1993). New and

undisputed evidence from the 1990 census reveals that

10,772 of the 11,334 of the residents - fully 95% - in the

disputed area are Indians;? indeed, most of the non-

Indians living there work for the BIA or Indian Health

Service. Less than 15% of the land is owned in fee by non-

Indians, and the Navajo Nation and United States pro-

vide almost all of the services in the area.? Both Congress

and the Executive branch consistently regarded the entire

area as part of the Navajo reservation.4 The court in

Yazzie justified its wide-ranging appellate fact-finding on

grounds which this Court found improper in Arkansas v.

Oklahoma, 112 S. Ct. 1046 (1992), reversing Oklahoma v.

EPA, 908 F.2d 595 (10th Cir. 1990). And Yazzie’s imputa-

tion of congressional intent upon selected documents

2 Cf. Duro v. Reina, 495 U.S. 676, 695 (1990) (non-Indians

outnumber Indians on most reservations).

* See Pittsburg & Midway Coal Mining Co. v. Saunders, No.

CIV 86-1442 M (D.N.M. Aug. 22, 1988), reproduced at 909 F.2d

1387, App. C at 1432, 1436-37 (10th Cir.) (“Saunders”) (“The

contribution of the State of New Mexico is small... . The

prominent law enforcement agency in the... area is the Navajo

Nation Police. The vast majority of civil and criminal disputes

are litigated in Navajo Tribal Court. The Tribe proved up many

more indications, too numerous to detail here, of the dominance

of the Navajo Nation over life in the . . . area.”), rev'd on other

grounds, 909 F.2d 1387 (10th Cir.), cert. denied, 498 U.S. 1012

(1990).

* Congress termed the area the Pueblo Bonito “reservation”

or “subdivision of the Navajo Reservation” in nine appropria-

tions acts from 1919 to 1927, and maps and annual reports of the

Commissioner of Indian Affairs from 1908-1927 generally

depicted and described the area as an “opened reservation.”

Saunders, supra n.3, 909 F.2d at 1436.

never seen by any member of Congress cannot survive

Negonsott v. Samuels, 113 S. Ct. 1119, 1124 n.4 (1993).

Thus, only if this Court determines that use of the

operative phrase “restore to the public domain” automat-

ically provides substantial and compelling evidence of a

congressional intent to disestablish can the court’s deci-

sion in Yazzie withstand scrutiny. See Solem v. Bartlett, 465

U.S. 463, 472 (1984). The Navajo Nation’s research reveals

that use of the phrase “restore to the public domain” has

no overriding significance in the diminishment context,

and files this brief to preserve its interest in maintaining

law and order in the opened part of its reservation. See id.

at 471 n.12.

SUMMARY OF THE ARGUMENT

In Ute, the Court of Appeals, en banc, held that the

Uintah Reservation was not diminished by legislation

opening it to non-Indian entry. Consistent with Solem v.

Bartlett, 465 U.S. 463, 475 n.17 (1984), Ute held that it was

equally plausible that use of the phrase “restore to the

public domain” simply meant that Indian lands would be

available for settlement but that reservation boundaries

would remain unchanged, and the Ute court was unable

to find elsewhere the “substantial and compelling” indi-

cations of a congressional intent to diminish required by

Solem v. Bartlett, 465 U.S. at 470-72. In holding to the

contrary with respect to the same Indian reservation, the

Utah Supreme Court relied solely on State v. Perank, 191

Utah Adv. Rep. 5 (1992), which concluded first that use of

the phrase “restore to the public domain” provides “per-

suasive” evidence of a congressional intent to diminish

and which devoted the rest of the opinion to concluding

that the 1905 opening legislation which did not use the

phrase merely amended a 1902 act which did.

The first conclusion in Perank is erroneous, and the

second is therefore immaterial. The phrase “public

domain” has never had an official meaning, and it typ-

ically describes land subject to disposal under general

laws. This Court has consistently rejected the notion that

the term “public domain” or “public lands” has a precise

meaning without reference to a definitional section or its

context in a statute.

Indeed, Perank’s only support for the position that

use of the phrase “restore to the public domain” signals

disestablishment is a later panel decision of the Tenth

Circuit, Yazzie, which is based on inconclusive dictionary

references, an internally contradictory report issued in

1880, inferences and deductions bordering on specula-

tion, and the unique view that it was empowered to reject

as “unexamined and unsupported” the considered legal

conclusions of a prior en banc opinion of the same court of

appeals. Yazzie, 909 F.2d at 1400. The authority cited in

Yazzie is not only insubstantial; if taken at face value,

much of it supports the view that the phrase “restore to

the public domain” was thought historically to affect only

land titles and not governmental jurisdiction.

Although Yazzie gives superficial sanction for Utah's

opportunistic misuse of a petty criminal prosecution

solely to relitigate Ute, this case shows the pitfalls of such

manipulation. Utah stated to the court of appeals in ‘Ute

that the district court committed no reversible error in

holding that the area of the Uintah Reservation at issue

here was not diminished, and even the counties and cities

of Utah which did appeal represented to the Ute court that

its decision would settle “once and for all” the jurisdic-

tion of the area. Allowing Utah to prevail here on the

one-sided record it developed below would encourage

state attorneys throughout the country to create conflicts

with settled diminishment decisions of the lower federal

courts, requiring resolution here.

s

ARGUMENT

I. THE DECISION BELOW RESTS ULTIMATELY ON

YAZZIE, A PANEL DECISION WHICH EXPLICITLY

REJECTED THE CONSIDERED LEGAL CONCLU-

SIONS OF A PRIOR EN BANC DECISION OF THE

SAME COURT OF APPEALS.

In 1985, the Court of Appeals for the Tenth Circuit,

sitting en banc, held that Congress did not disestablish the

Uintah Reservation. Ute, 773 F.2d at 1090. Ute reasoned

that because “it is equally plausible that the phrase means

that Indian lands would be available for settlement but

that the boundaries remain unchanged . . . [t]he

. expression ‘return to the public domain’ does not

reliably establish the clear and unequivocal evidence of

Congress’ intent to change boundaries” required under

Solem v. Bartlett, 465 U.S. 463 (1984). Ute, 773 F.2d at 1092.

As the petition for certiorari in Ute and related submis-

sions filed in this Court show, all persons with an interest

in the Uintah reservation - the United States, the tribe,

the State of Utah, the counties and cities, and even a

landowner in the opened Navajo reservation in New

Mexico — participated in that case, and the significance of

the phrase “restore to the public domain” was the central

issue in that case. With the benefit of the arguments of all

parties, the en banc Court of Appeals held in Ute that the

phrase was not sufficient to show a congressional intent

to disestablish.

Later, in Yazzie, the party urging disestablishment of

the Navajo reservation in New Mexico asserted to the

Court of Appeals that use of the phrase “ ‘restore to the

public domain’ . . . was then, and is now, a legal term of

art . . . [which] terminated all reservation status for the

area.”> Because no panel of the Court of Appeals has the

authority to reject the considered legal conclusions of a

prior en banc decision of that same Court of Appeals,* the

Navajo Nation devoted only one-half page of its answer

brief to that issue, relying on Ute and Solem v. Bartlett, 465

U.S. at 475 n.17. However, the Yazzie panel resurrected

the dissent in Ute and, as the Utah Supreme Court

observed, “rejected” the conclusions of the Ute majority

with respect to the effect of restoration language. State v.

Perank, 191 Utah Adv. Rep. 5, 9 (1992).

> Brief of the Pittsburg & Midway Coal Mining Co., Appel-

lant at 6, No. 88-2413 (10th Cir. 1988).

© See Fed. R. App. P. 35.

In proceedings below, the Utah Court of Appeals was

aware that the Utah Supreme Court in Perank was being

asked to ignore Ute. Unimpressed, the Utah Court of

Appeals reversed Hagen’s conviction, “[s]eeing no possi-

bility of an effective decision in Perank contrary to the

result in Ute Indian Tribe.” State v. Hagen, 802 P.2d 745, 747

(Utah App. 1990), rev'd, 191 Utah Adv. Rep. 26 (1992).

In Perank, however, the Utah Supreme Court

observed that Yazzie “clearly departs from the court's

prior conclusion in Ute Indian Tribe as to the effect of

restoration language. Indeed, Yazzie held that use of oper-

ative restoration language diminishes a reservation as to

the land restored to the public domain.” State v. Perank,

191 Utah Adv. Rep. 5, 10 (1992). Almost exclusively in

reliance on Yazzie, the Utah Supreme Court in Perank

concluded that operative restoration language “is persua-

sive evidence of congressional intent to diminish.” Id. The

rest of the Perank opinion is largely devoted to showing

that the 1905 act of Congress which actually opened the

Uintah reservation but which did not use the phrase

“restore to the public domain” was merely amendatory of

a 1902 act which did. Id. at 10-18. Notably, Perank was

litigated at all stages without any effective participation

of the United States or the Ute Indian Tribe. Id. at 22

(Zimmerman, J., dissenting) (referring to the “virtually

unchallenged” arguments of Utah on the boundary ques-

tion).

Based solely on Perank, the Utah Supreme Court

reversed the Utah Court of Appeals in Hagen and held

that the crime committed by petitioner Hagen did not

occur in Indian country. State v. Hagen, 191 Utah Adv.

Rep. 26 (1992). Thus, having failed to convince this Court

to reverse the en banc decision in Ute where the Tenth

Circuit had the benefit of a complete factual record and

exhaustive briefs of all interested parties, Utah now asks

the Court to bless its position on a one-sided record put

together by it alone on the authority of Yazzie — the sole

example of a panel explicitly rejecting the considered

legal conclusions of an en banc opinion of the same fed-

eral Court of Appeals.

Il. YAZZIE’‘S CONCLUSION THAT USE OF THE

PHRASE “RESTORE TO THE PUBLIC DOMAIN”

PROVIDES PERSUASIVE EVIDENCE OF A CON-

GRESSIONAL INTENT TO DIMINISH IS INCON-

SISTENT WITH THE DECISIONS OF THIS

COURT.

In Solem v. Bartlett, this Court observed that “even

without diminishment, unallotted opened lands could be

conceived of as being in the ‘public domain’ inasmuch as

they were available for settlement.” 465 U.S. 463, 475 n.17

(1984). Similarly, in Rosebud Sioux Tribe v. Kneip, this Court

pointed out that “[t]he question of whether lands become

‘public lands’ . . . is therefore logically separate from a

question of disestablishment.” 430 U.S. 584, 601 n.24

(1977). Solem and Rosebud are consistent with the view of

the Department of the Interior, which determined in an

opinion concerning the Indian reservation at issue here

that the “surplus lands of the Uintah and White River

Utes are properly regarded as Indian lands” and that the

use of the operative phrase “restore to the public

domain” is “only a method of indicating that the lands

are to be subject to disposition under the public land

10

laws.” Whether Surplus Lands in Uintah and Ouray Reserva-

tion are Indian Lands, II Op. Sel. 1205 (1943). Accord Resto-

ration to Tribal Ownership of Ceded Colorado Ute Indian

Lands, 56 1.D. 330, 337-39 (1938) (declaration in 1880 stat-

ute that certain lands “shall be held and deemed to be

public lands of the United States” is not inconsistent with

their status as “surplus lands of an Indian reservation

heretofore opened” under 25 U.S.C. § 463).

Many other decisions of this Court refute the notion

that dispositive significance should be given to the fact

that Indian lands were restored to the “public lands” or

to the “public domain,” phrases assumed to be syn-

onymous in Yazzie. 909 F.2d at 1402. The meaning gener-

ally ascribed to “public lands” is “well settled.” Union

Pac. R.R. v. Harris, 215 U.S. 386, 388 (1910). The phrase

simply describes lands “ ‘subject to sale or other disposal

under general laws.’ ” Id., quoting Newhall v. Sanger, 92

U.S. 761, 763 (1875). See Utah Div. of State Lands v. United

States, 482 U.S. 193, 206 (1987). However, even this typical

usage is not inflexible. Kindred v. Union Pac. R.R., 225 US.

582 (1912), held that a statute granting a right of way

through “public lands” contemplated a right of way grant

through Indian lands. The Court observed that although

“public lands” ordinarily means “such lands as are sub-

ject to sale or other disposal under general laws

. . it sometimes is used in a larger and different sense.”

Kindred, 225 U.S. at 596. Thus, in Amoco Prod. Co. v.

Gambell, the Court “reject[ed] the assertion that the

phrase ‘public lands,’ in and of itself, has a precise mean-

ing, without reference to a definitional section or its

context in a statute.” 480 U.S. 531, 548-49 n.15 (1987).

11

Indeed, in 1864 Congress equated “Indian or other

reservations” with “public lands.” 25 U.S.C. § 176. A

century later, Congress demonstrated the same under-

standing, expressly excepting Indian reservations from

the “public lands” to be studied by the Public Land Law

Review Commission. Act of Sept. 19, 1964, § 10, 78 Stat.

982, 985 (formerly codified as 42 U.S.C. § 1400).

Yazzie overlooked these authorities in its search for

the one true meaning of the phrase “restore to the public

domain.” After distinguishing the principal diminish-

ment cases, including Ute whose conclusions it found

“unexamined and unsupported,” 909 F.2d at 1397-1400,

Yazzie reviewed dictionary references and examined dis-

similar statutes from other cases. 909 F.2d at 1401. Cf.

Hynes v. Grimes Packing Co., 337 U.S. 86, 115-16 (1949)

(“one may not fully comprehend the statute’s scope by

extracting from it a single phrase, such as ‘public lands’

and getting the phrase’s meaning from the dictionary or

even from dissimilar statutes”). Yazzie determined that

the “dictionary definitions . . . do not clearly resolve the

potential ambiguity with respect to title and jurisdiction”;

indeed, the definition of “public domain” quoted in

Yazzie supports the view that it concerned only ownership

of land, not jurisdiction over it. 909 F.2d at 1401.

Yazzie then made “deductions . . . largely based on

inferential evidence.” 909 F.2d at 1402. In an extended

passage relied on verbatim in Perank, Yazzie examined

dicta from several cases involving dissimilar statutes,

reversed the proper presumption, and, ignoring Ute,

stated that it “found no case where operative restoration

language was not accepted as language of termination.”

12

909 F.2d at 1404.7 Be that as it may, this Court has made

clear that each opening statute must be reviewed sep-

arately, because each is the “product of a unique set of

tribal negotiation and legislative compromise.” Solem v.

Bartlett, 465 U.S. 463, 467 (1984).

Yazzie’s inquiry into the general interpretation by the

executive branch of restoration language “begin{s] with

the Public Land Commission’s history of the public

domain, commissioned by Congress and issued in 1880.”

Yazzie, 909 F.2d at 1404. Yazzie observed that this docu-

ment states that one procedure for “abolishing” an Indian

reservation includes issuance of an order “restoring the

” Yazzie should have stated that it could find no case where

operative restoration language was held sufficient to extinguish

reservation boundaries. See Solem v. Bartlett, 465 U.S. 463, 472

(1984) (“There are, of course, limits to how far we will go to

decipher Congress’ intention in any particular surplus land Act.

When both an Act and its legislative history fail to provide

substantial and compelling evidence of a congressional inten-

tion to diminish Indian lands, we are bound by our traditional

solicitude for the Indian tribes to rule that diminishment did not

take place... ..”); Mattz v. Arnett, 412 U.S. 481, 496-99, 504 & n.22

(1973); United States v. Wounded Knee, 596 F.2d 790, 794 (8th Cir.)

(“[I]t would seem to be a usurpation of legislative authority to

say that Congress must have meant thus and so; therefore we

will simply plug the missing words into the Act.”), cert. denied,

442 U.S. 921 (1979); United States v. Grey Bear, 828 F.2d 1286, 1290

(8th Cir. 1987) (although opening act contained language pre-

cisely suited to diminishment, reservation boundaries were

unaffected because of lack of a commitment to pay for the

opened land), panel reh’g denied, 836 F.2d 1086 (8th Cir. 1987),

vacated in part on other grounds on grant of reh’g en banc, 836 F.2d

1088 (8th Cir. 1987), on reh’g, 863 F.2d 572 (8th Cir. 1988). Cf.

Seymour v. Superintendent, 368 U.S. 351, 354 (1962) (Reservation

“vacated and restored to the public domain” by act of Congress

was diminished) (emphasis added).

13

lands to the public domain.” U.S. Pub. Land Comm’n, The

Public Domain (1880) at 243-44.

However, Yazzie overlooked the fact that the 1880

report itself refutes the contention that the “public

domain” and Indian reservations were considered to be

mutually exclusive. The report includes Indian reserva-

tions in one table summarizing various categories of land

in the “public domain.” Id. at 25-26. After equating the

phrases “public lands” and “public domain,” the report

discusses surveys of Indian reservations in the chapter

entitled “Surveys of the Public Lands.” Id. at 10, 179. The

“grand total” of land in Indian reservations was reported

to be 154,436,362 acres. Id. at 247. Correspondingly, the

“area of public lands in Indian reservations” was reported

in another table to be 154,436,362 acres. Id. at 26

(emphasis added). The report concludes that land

remaining in the “public domain” totals “830,284,276.43

acres, inclusive of Indian and military reservations.” Id. at

531 (emphasis added).

Even if the one passage of the report emphasized in

Yazzie were viewed in isolation, it would still be unreli-

able. See Paul W. Gates, History of Public Land Law Devel-

opment 430-34 (1968). In 1882, William S. Holman, a

recognized federal land expert, stated that the report was

“not a work of permanent interest suitable for libraries,

but only of temporary interest.” 18 Cong. Rec. 6954

(1882). The report “provides little or no information

about the way the land system was actually functioning.”

History of Public Land Law Development at 431. “One writer

has shown that Donaldson [the author of the 1880 report]

committed six important errors in one sentence concern-

ing the grants of the saline lands to the states when they

were admitted.” Id. The author’s prejudices led him to

14

“distort the facts” and give “obviously misleading

accounts.” Id. at 433-34. In contrast to the uncritical use of

an isolated sentence in the 1880 report in Yazzie, a noted

authority has warned that it should “be used with cau-

tion; it contains many inaccuracies.” E. Louise Peffer, The

Closing of the Public Domain 12 n.6 (1951). “Nothing of any

value came of the recommendations” contained in the

report. Id. at 14. Indeed, accepting one of the recommen-

dations related to railroad land proved to be “among the

most regrettable steps taken by Congress in land mat-

ters.” History of Public Land Law Development at 429.

In imputing to Congress in the twentieth century a

reliance on an obscure passage from an internally contra-

dictory and discredited report issued in 1880, Yazzie mis-

sed the central fact that the phrase

“public domain” . . . has no official definition. In

its most general application, a public domain is

meant to include all land owned by a govern-

ment — any government, anywhere.

The Closing of the Public Domain at 5 (footnotes omitted).*

The phrase had no official definition in 1880° and it has

* Accord Utah Div. of State Lands v. United States, 482 US.

193, 212 n.4 (1987) (White, J., dissenting).

* Later reports of the Public Land Commission similarly

include Indian reservations as part of the “public domain.” See

Report of the Public Lands Commission, S. Doc. No. 189, 58th Cong.

3d Sess. 306, 361 (1905). Official compilations of public land

Statutes equate Indian reservations and public lands. A 1916

compilation of “public land” statutes includes 38 pages of stat-

utes relating to Indian reservations. Public Land Statutes of the

United States 119-156 (U.S.G.P.O. 1916). Similarly, the 1931 com-

pilation of “public land” statutes includes 73 pages of statutes

15

none now. See Solem v. Bartlett, 465 U.S. 463, 475 & n.17

(1984); Amoco Production Co. v. Gambell, 480 U.S. 531,

548-49 n.15 (1987).

II]. AFFIRMANCE WOULD ENCOURAGE FURTHER

ABUSE OF THE JUDICIAL PROCESS BY STATE

ATTORNEYS SEEKING TO CIRCUMVENT

ESTABLISHED PRECEDENT SOLELY FOR THE

PURPOSE OF FORCING REVIEW BY THIS

COURT.

The en banc decision in Ute followed an exhaustive

examination of the facts and law in the district court and

vigorous briefing and argument before the entire Court of

Appeals by all interested parties. The counties and cities

said there that the outcome of Ute would “define, once

and for all, the governmental authority of the various

parties in the area involved (absent further congressional

involvement).”! As the Utah Court of Appeals noted, the

federal courts in Ute “constru[ed] federal statutes, federal

regulations, and federal Indian policy,”'! and, as Justice

relating to Indian reservations. Public Land Statutes of the United

States 225-297 (U.S.G.P.O. 1931).

© Reply Brief of Appellee/Cross-Appellant Counties and

Cities at 1, Nos. 81-1827, 81-1901 (10th Cir. 1982) (emphasis

added). Indeed, the State of Utah did not even appeal the dis-

trict court’s ruling that the Uintah reservation was not disestab-

lished in the area over which it now claims authority, stating

that “it was difficult for any party to demonstrate reversible

error.” Brief of Appellee State of Utah on Rehearing En Banc at

1-2, Nos. 81-1827, 81-1901 (10th Cir. 1984).

'! State v. Hagen, 802 P.2d 745, 747 (Utah App. 1990), rev'd,

191 Utah Adv. Rep. 26 (1992).

16

Zimmerman wrote in dissent, federal Indian law is the

product of the “preeminent authority and a unique trust

responsibility” of the United States. State v. Perank, 191

Utah Adv. Rep. 5, 22 (1992) (Zimmerman, J., dissenting).

Indeed, the trust responsibility “arose largely from the

federal role as a guarantor of Indian rights against state

encroachment.” Washington v. United States Envtl. Protec-

tion Agency, 752 F.2d 1465, 1470 (9th Cir. 1985), citing

United States v. Kagama, 118 U.S. 375, 383-84 (1886);

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). See gener-

ally Oklahoma Tax Comm'n v. Sac and Fox Nation, 113 S. Ct.

1985, 1991 (1993) (noting the “ ‘deeply rooted’ policy in

our Nation’s history of ‘leaving Indians free from state

jurisdiction and control’ ”), citing McClanahan v. Arizona

State Tax Comm'n, 411 U.S. 164, 168 (1973) (internal quota-

tion marks omitted).

Thus, although the suggestion of the Utah Court of

Appeals that the Supremacy Clause bars state court dis-

agreement with Ute may be overly cautious,!2 this case

Presents perhaps the least attractive circumstances for

such second-guessing. In contrast with Perank and Hagen,

Ute was decided after development of a complete factual

record and with the vigorous participation of all inter-

ested parties. In Ute, federal law was interpreted by a

federal court of appeals sitting en banc. The issue of

diminishment is particularly sensitive with state govern-

ments, which have typically coveted authority over

'2 State v. Hagen, 802 P.2d at 747. Cf. Lockhart v. Fretwell, 113

S. Ct. 838, 846 (1993) (Thomas, J., concurring) (If state court

follows lower federal court's interpretation of federal law, “it

does so only because it chooses to and not because it must.”).

17

Indian lands. Allowing Utah to make “opportunistic mis-

use of [a] petty criminal prosecution to readjudicate a

settled issue,” will encourage energetic prosecutors in all

areas of the country to pursue a similar strategy for the

“sole purpose of creating a conflict with the federal

courts to force Supreme Court review.”'3 State v. Perank,

191 Utah Adv. Rep. 5, 22-23 (1992) (Zimmerman, J., dis-

senting).

Moreover, the conceded lack of participation by the

United States and the Utes in Hagen and Perank is further

exacerbated by the unprecedented procedures in Yazzie,

upon which the decision below ultimately rests. Contrary

to consistent Tenth Circuit precedent,'4 the Yazzie panel

pointedly rejected the governing legal standard estab-

lished by the en banc decision in Ute, effectively preempt-

ing a full presentation on this issue by the tribal party in

Yazzie. The decision making in the case before the Court

has been grossly distorted by the absence of effective

articulation and consideration of tribal and federal inter-

ests.

‘8 A partial list of the diminishment cases decided by the

lower courts appears in Felix S. Cohen's Handbook of Federal

Indian Law 44 n.153 (R. Strickland ed. 1982).

'* See, e.g., United States v. Taylor, 828 F.2d 630, 633 (10th Cir.

1987); United States v. Berryhill, 880 F.2d 275, 277 (10th Cir. 1989),

cert. denied, 493 U.S. 1049 (1990); Huffman v. Caterpillar Tractor

Co., 908 F.2d 1470, 1481 (10th Cir. 1990); United States v. Speda-

lieri, 910 F.2d 707, 710 n.3 (10th Cir. 1990).

18

CONCLUSION

Utah’s attempt to relitigate Ute depends on its con-

tention that use of the phrase “restore to the public

domain” is persuasive evidence of a congressional intent

to diminish. Upon close examination, the authority on

which Utah’s position ultimately rests, Yazzie, is insub-

stantial, relying as it does on inconclusive dictionary

references, deductions and inferences bordering on spec-

ulation, an internally contradictory and discredited

report issued in 1880, and - most fundamentally —- an

abandonment of the principles of statutory construction

set forth so clearly by this Court in Solem v. Bartlett.

Respectfully submitted,

Hers YAZZIE Paut E. Frve

Attorney General NorpxHaus, HALtom, TAYLor,

Navajo Nation Department ==TarapasH & Frye

of Justice Suite 1050

Post Office Drawer 2010 500 Marquette Avenue NW

Window Rock, Navajo Albuquerque, NM 87102

Nation (AZ) 86515 (505) 243-4275

(602) 671-6585 Attorneys for Amicus Curiae

Navajo Nation

et —