Amicus Curiae Brief — Hagen v. Utah

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TABLE OF CONTENTS

Page

EE iii

INTEREST OF AMICUS CURIAE .....................:-00-0000-0 1

SUMMARY OF ARGUMENT ......W.......0.........ec-ececceceeseees 2

EE ee aT ee a 4

I. A FAIR READING OF SEYMOUR, MATTZ,

DECOTEAU, ROSEBUD AND SOLEM

CLEARLY SUSTAINS THE VIEWS SET

FORTH IN THE OPINION OF THE UTAH

ID HII cecndscunerinenaceonsindenmatetieesnnetemensamnae 4

II. THIS COURT HAS CONSISTENTLY REC-

OGNIZED THE SIGNIFICANCE OF PUBLIC

DOMAIN TERMINOLOGY IN THE OPERA-

TIVE LANGUAGE OF SIMILAR GENERAL

ALLOTMENT ACT STATUTES AND THE

UNITED STATES HAS CONSISTENTLY

AGREED WITH THIS VIEW ....................00....... ~

A. Seymour v. Superintendent, 368 U.S. 351

ERIS ESN ae eed 1 x

B. Mattz v. Arnett, 412 U.S. 481 (1973) ........... 10

C. DeCoteau v. District County Court, 420 U.S.

I aad ae area ease 14

D. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

BERLE SES ERAS SO Ce 22

E. Solem v. Bartlett, 465 U.S. 463 (1984)... 29

| ESLER Fake te nko at nT Oe 30

APPENDIX

Herbert T. Hoover, Congressional Intent Re-

garding Jurisdiction on Ceded Indian Land Dur-

ing the Allotment Era: History, a Paper pre-

sented to the Western History Association, Oc-

caer acne la

TABLE OF CONTENTS—Continued

LeAnn Larson LaFave, Congressional Intent Re-

garding Jurisdiction on Ceded Indian Land Dur-

ing the Allotment Era Part Il: The Law, a

Paper presented to the Western History Associ-

ation, October 1986 200... ccccccccecececcceeeee

Memorandum for the United States, Seymour v.

Superintendent, 368 U.S. 351 GRIND setenisitenteedies

Brief-of the United States as Amicus Curiae,

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

Brief of the United States as Amicus Curiae,

DeCoteau v. District County Court, 420 U.S. 425

(SIFU D axcenceececisssnconntuimssinmnspaiiiansit nnn

Brief of the United States as Amicus Curiae,

pen Sioux Tribe v. Kneip, 480 U.S. 584

1977)

Page

iii

TABLE OF AUTHORITIES

CASES: Page

Antoine v. Washington, 420 U.S. 194 (1975) _........ 9

Ash Sheep Co. v. United States, 252 U.S. 159

EES ee a 28

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989) ........ 1

DeCoteau v. District County Court, 420 U.S. 425

EE LE SE passim

Little Light v. Crist, 649 F.2d 682 (9th Cir.

EE 29

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ........ 26, 27

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

Montana v. Crow Tribe, 918 F.2d 895 (9th Cir.

1985), summarily aff'd 484 U.S. 997 (1988) ........ 29

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

EE passim

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

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

Uintah and White River Bands of Ute Indians v.

United States, 139 Ct.Cl. 1 (1957) —..................... 6

United States v. Pelican, 232 U.S. 442 (1914)........ 9

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

(10th Cir. 1985), cert. denied, 479 U.S. 994

Ute Indian Tribe v. State of Utah, 521 F. Supp.

ic errnernernsetencssenansramseessses 4,5

STATUTES:

24 Stat. 388, General Allotment Act of 1887 ............. passim

Act of March 2, 1889, 25 Stat. 896 ........................-..-. 25

Act of May 27, 1902, 32 Stat. 245 .................-- 2

Act of Jan. 27, 1906, 34 Stat. 9 ...................-..220--2000--0++ 5

Act of July 20, 1912, 37 Stat. 196 .............................. 5

Utah Code Ann. §§ 17-1-10, 17-1-27 ........-.-------0<--00000 6

CONGRESSIONAL MATERIALS:

86 Cong. Rec. 1888 (1908) ..............--..----0-----es-e-eeeeeenee- 4-5

40 Cong. Rec. 1064, 1332 (1906) , 5

H.R. Doc. No. 892, 62d Cong., 2d Sess. (1912) ..........

H.R. Doc. No. 1250, 63d Cong., 3d Sess. (1914) .........

H.R. Rep. No. 291, 59th Cong., 1st Sess. (1906) ....

TABLE OF AUTHORITIES—Continued

Page

H.R. Rep. No. 791, 50th Cong., Ist Sess. (1988). 10

S. Rep. No. 57, 53d Cong., Ist Sess. (1893) 14

S. Rep. No. 139, 59th Cong., Ist Sess. (1906) 5

S. Rep. No. 4240, 58th Cong., 3d Sess. (1905) _........ 5

PROCLAMATION AND EXECUTIVE ORDERS:

Presidential Proclamation of September 1, 1906,

TES reek Ve Re 5

MISCELLANEOUS:

[1905] Commissioner of Indian Aff. Rep. 5

RRS TR eee ae RR eee 6

36 Fed. Reg. 19920 (1971) 2.220... ec eeceeeeenen eee 6

Brief for Petitioner, Seymour v. Superintendent,

368 U.S. 351 (1962) _..... . 9

Brief for Respondent, DeCoteau v. District County

Court, 420 U.S. 425 (1975) , 21

Brief for the United States as Amicus Curiae,

State of Utah v. Ute Indian Tribe, U.S. Supreme

Court No. 85-1821, November 1986... 6

Campbell, Reservations: The Surplus Lands Acts

and the Question of Reservation Disestablish-

ment, 12 Am. Ind. L. Rev. 57 (1984) 00 7

Department of the Interior Memorandum from

Finney to Howell (October 1912) 0. 6

Herbert T. Hoover, Congressional Intent Regard-

ing Jurisdiction on Ceded Indian Land During

the Allotment Era, a Paper presented to the

Western History Association (October 1986) 7

LeAnn Larson LaFave, Congressional Intent Re-

garding Jurisdiction on Ceded Indian Land Dur-

ing the Allotment Era Part II: The Law, a

Paper presented to the Western History Associa-

oe ee

Letter from Commission of Indian Affairs to Sec-

retary of the Interior (June 19, 1941)...

Memorandum from the Solicitor (Nov. 18, 1964).

Minutes of Councils with Uintah and White River

Indians (May 18 to May 23, 1903)

ar Am lf

TABLE OF AUTHORITIES—Continued

Page

Stipulation, Uintah and White River Bands of the

Ute Indians v. United States, 139 Ct.Cl. 1

(1957) ...... 6

Transcript of Oral Argument, Erickson v. U.S. ex

rel. Feather, U.S. Supreme Court No. 73-1500,

decided with DeCoteau v. District County Court,

OS Se 16-17, 20-21

Transcript of Oral Argument, Mattz v. Arnett, 412

U.S. 481 (1973) 11-12

Transcript of Oral Argument, Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584 (1977) ........-..-.------- 23

U.S. Department of Commerce, Federal and State

Indian Reservations 63 (1974) 3

David R. Williams, State v. Perank: Is the

Uintah-Ouray Reservation “Nailed Down Upon

the Border?”, 1992 B.Y.U.L. Rev. 1247 ............-.

BRIEF FOR UINTAH COUNTY, UTAH,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The concern that prompts the filing of this Brief can

be simply stated. Prior to the litigation of this reserva-

tion boundary issue, this Court, the United States and the

Tribe itself had taken the position that the Ute Tribe’s

reservation consisted of 1 million acres, not the 4 million

acres encompassed within the boundaries of the original

Uncompahgre and original Uintah reservations. More

than 18,000 residents of Duchesne County and Uintah

County thus face the prospect of being suddenly thrust

into the status of residents of an Indian reservation,

where their officials would have only limited jurisdiction

and where they would have no elective voice in the gov-

ernance of their affairs and property by the Tribe. For

its part, the Ute Tribe has enacted a comprehensive

Tribal Code which, by its terms, is applicable to Indians

and non-Indians alike throughout both historic reservation

areas. See, e.g., Brendale v. Confederated Tribes and

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

(1989). Compared to Solem v. Bartlett, 465 U.S. 463

(1984), Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977), DeCoteau v. District County Court, 420 U.S.

425 (1975), Mattz v. Arnett, 412 U.S. 481 (1973), or

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

people, more area and more resources are at stake here

because of the conflicting decisions of the Utah Supreme

Court and the United States Court of Appeals for the

Tenth Circuit.

In this respect, Amicus Uintah County is doubly im-

pacted. The original boundaries of both reservations ex-

tend into Uintah County and encompass a substantial

percentage of the entire county land base, not heretofore

deemed to be within the boundaries of an Indian

reservation.

SUMMARY OF ARGUMENT

The Utah Supreme Court correctly concluded that the

Uintah Act of May 27, 1902 (32 Stat. 245), Joint Ap-

pendix 159-160 (hereafter “JA”) as amended, which

provided that the unallotted lands of the Uintah Reserva-

tion be restored to the public domain, constituted clear

evidence of disestablishment, as this Court has recognized.

In a conflicting opinion, the en banc majority of the

court of appeals mistakenly believed that this Court’s de-

cision in Solem dictated “a different result,” despite the

fact that in Solem the Court indicated that it was follow-

ing a path clearly marked by its prior decisions. The

fundamental error of the en banc majority centered

around a misconstruction of Solem regarding the signifi-

cance of the public domain terminology. Up front, Solem

specially referenced public domain terminology in con-

junction with other operative language that “strongly”

Suggested disestablishment and the en banc majority

missed the point. Solem at 470, citing Seymour at 355

(restored to public domain language). Instead, the en

banc majority focused on a footnote in that portion of

the Solem opinion directed only to miscellaneous provi-

sions in the balance of the Solem Act. Solem at 474-475.

Even there, the en banc majority simply painted Solem

with too broad a brush.

As a result, the en banc majority failed to take into

account important factors uniformly understood to con-

Stitute explicit expressions of congressional intent to dis-

establish both the original Uintah and the original Un-

compahgre Reservation. Moreover, the en banc majority

ignored the unwavering position of the federal govern-

ment since 1897 that the original Uncompahgre Reserva-

tion no longer exists. (The United States participating as

Amicus Curiae, failed to inform the en banc court that

the Uncompahgre documentation “compels” a conclusion

that the reservation was disestablished, as the United

States subsequently told this Court; instead, the United

States simply took no position on this nearly identical in

pari materia Act, and argued the other in pari materia

Act was not intended to disestablish the original Uintah

reservation.) Accordingly, the en banc majority paid

little attention to the similarly long-standing administra-

tive and congressional treatment of the original Uintah

Reservation. Relying on what it deemed the “Solem

standards,” it then fashioned the second largest Indian

reservation in the United States.’ In construing operative

public domain language as it did, the en banc majority

thus attempted to “remake history,” which this Court ad-

monished “cannot” be done in order to resurrect reserva-

tions that long ago ceased to exist. DeCoteau, 420 US.

at 449; Accord Rosebud, 430 U.S. at 615. The Utah

Supreme Court cannot be faulted for failing to follow

this path.

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

Mattz v. Arnett, 412 U.S. 481 (1973), DeCoteau v. Dis-

trict County Court, 420 U.S. 425 (1975), Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584 (1977) and Solem v. Bart-

lett, 465 U.S. 463 (1984), this Court has consistently

recognized the importance of public domain language

when presented with issues involving similar surplus land

statutes also enacted pursuant to Sec. 5 of the General

Allotment Act of 1887, 24 Stat. 388. The arguments of

the United States in Seymour, Mattz, DeCoteau, and

Rosebud, are all founded on this express understanding.

The United States has consistently pointed out, by con-

trast, that disestablishment was clearly intended when

the operative language of other statutes contained this

express public domain terminology. In Solem, the United

States did not repudiate or otherwise refute this funda-

mental point. Instead, the United States relied on a series

of other more sophisticated arguments, none of which

are controlling here.

1 The largest is the Navajo Reservation. See U.S. Department of

Commerce, Federal and State Indian Reservations 63 (1974).

With some three million acres of non-Indian owned lands included

within its boundaries, the Uintah and Ouray Reservation, would

under the en bane decision, contain the largest concentration of such

lands of any recognized reservation. See, e.g., Federal and State

Indian Reservations, supra.

ARGUMENT

I. A FAIR READING OF SEYMOUR, MATTZ, DECO-

TEAU, ROSEBUD AND SOLEM CLEARLY SUS-

TAINS THE VIEWS SET FORTH IN THE OPIN-

ION OF THE UTAH SUPREME COURT.

Over half a century after Congress expressly provided

that the lands of the original Uintah Valley Reservation

in Utah, not allotted to individual Tribal members or

reserved for their benefit or other purpose, be “restored

to the public domain,” and after a substantial rural pop-

ulation (over ninety percent of which are non-members)

has paid for, resided on and developed this area of the

public domain (ninety percent of which is now held in

fee), a challenge to the longstanding assumption of State

jurisdiction in the area was mounted in 1975. This be-

lated effort to roll back history has resulted, after an

additional eighteen years of Federal and State litigation,

in the question of statutory construction now presented

to this Court: whether Congress intended when making

these lands a part of the public domain, to leave the area

within the limits of the Reservation. Ute Indian Tribe

v. State of Utah, 521 F. Supp. 1072 (D. Ut. 1981).

Amicus County is not unmindful of the longstanding rule

that counsels how doubtful expressions in Indian legisla-

tion are resolved, but the intent and purpose of the Ute

legislation was never in doubt and should not be in doubt

now. Congress utilized public domain terminology in

the operative language of the Ute legislation, and later

amended but never repealed, directly or by implication,

this language—language that this Court has repeatedly

equated with the disestablishment of areas of original

Indian Reservations in each of its modern cases. Seymour

at 354-355; Mattz at 504, n.22; DeCoteau at 446; Rose-

bud at 589; Solem at 470.

On the floor of the House, Congressman Sutherland

explained that because of the Ute legislation, an appro-

priation for another survey of the boundaries of the orig-

inal Reservation would be “entirely useless.” 36 Cong.

Rec. 1388 (1903), LD 90.2 The Rosebud legislation was

specifically cited, relied on, and adopted by Congress in

finalizing the manner of entry. S. Rep. No. 4240, 58th

Cong., 3d Sess. at 15-16 (1905) LD 102. At the time,

Interior Inspector McLaughlin also explained the legisla-

tion to the Utes in open council in terms that everyone

clearly understood (“Congress has provided legislation

which will pull up the nails which hold down that line

and after next year there will be no outside boundary

line to this Reservation”). Minutes of Councils with

Uintah and White River Indians at 42 (1903) JX 162

(Duchesne Brief App. 368a).

Immediately after the Act was implemented, the Com-

missioner of Indian Affairs expressly stated that the Ute

legislation “restored the area to the public domain”. An-

nual Report of the Commissioner of Indian Affairs at

147 (1905), JX 323. In 1906, when President Roose-

velt had occasion to revisit the issue one year after his

1905 Proclamation formally opening the Reservation

(which recited the “public domain” language of the Ute

legislation), he further described the area as the

“former” Uintah Indian Reservation and one additional

small tract theretofore reserved was similarly “restored

to the public domain” in this 1906 Presidential Proclama-

tion. Proclamation of September 1, 1906, 34 Stat. 3228-

3229 LD 132. From the beginning, Congress shared this

view and variously described the area, whenever the oc-

casion arose, as “heretofore a part of the Reservation”,

40 Cong. Rec. 1064, 1332 (1906) LD 116; S. Rep. 139,

59th Cong., Ist Sess. 1 (1906) LD 117; H.R. Rep. 291,

59th Cong., Ist Sess. 1 (1906) LD 119; Act of Jan.

27, 1906, 34 Stat. 9 LD 120, “formerly” a part of the

Reservation, Act of July 20, 1912, 37 Stat. 196 LD 145,

* The record on appeal includes a Joint Compendium of Legisla-

tive Documents and Joint Exhibits, which include Executive Orders,

President Proclamations and certain Secretarial Orders, compiled

and used by the District court. In addition to formal citation form,

these sources are referred to parenthetically by their corresponding

index numbers, LD 1 to LD 217, and JX 1 to JX 485. See, Ute

Indian Tribe, 773 F.2d at 1094, n.2, and Ute Indian Tribe, 521

F. Supp. at 1080, n.17.

or within the “former” Reservation in so many instances

that excerpts alone fill pages of Appendices. Duchesne

Brief App. 408a. Administratively, there are references

in every decade that the area in question was “restored

to the public domain” and as such was within the “former

boundaries” of the original Uintah Reservation, by vari-

ous officials of the Department of Interior and Office of

Indian Affairs. Joint Report by Special Inspectors to the

Sec. of the Interior, contained in H.R. Doc. No. 892; 62d

Cong., 2d Sess. 1-2 (1912) LD 146; Dept. of the Interior

Memorandum from Finney to Howell at 1 (October,

1912) JX 359; Letter from Sec. of the Interior, con-

tained in H.R. Doc. No. 1250, 63d Cong., 3d Sess. 2-3

(1914) LD 149; Letter from Commr. of Indian Affairs

at 1, (June 19, 1941) JX 450; Opinion of Interior

Solicitor, 59 I.D. 393 (1947) JX 454; Memo from So-

licitor at 2 (Nov. 18, 1964) JX 469; Secretarial Order,

36 Fed. Reg. 19920 (1971) LD 210. As early as 1917,

County boundaries were also defined with specific refer-

ence to the “boundary of the former Uintah Indian Res-

ervation. Utah Code Ann. §§ 17-1-10, 17-1-27.

As recently as 1957, in the Court of Claims, the United

States and the Uintah Indian Tribe formally stipulated

that the “1902 Act, as amended” restored the Uintah

Reservation to the “public domain” and that it was in

fact a “former” Reservation. Stipulation at 10, 14, 15,

Uintah and White River Bands of the Ute Indians v.

United States, 139 Ct. Cl. 1 (1957), JX 455. (Counties

’—Brief in Support of Petition App. la). And this con-

cession was, as one would expect, consistent with other

admissions of the Ute Indian Tribe that repeatedly recog-

nized a Ute Reservation consisting of one million acres

of trust lands, and not the four million acres within the

original Reservation boundaries of their present claim.

Even the United States, subsequent to the en banc deci-

sion of the Court of Appeals, now openly concedes that

part of this Ute claim should not be sustained. Brief of

the United States as Amicus Curiae at 20-21, State of

Utah v. Ute Indian Tribe, U.S. Sup. Ct. No. 85-1821,

cert. denied, 479 U.S. 994 (1986).

_ Even without a proper historical perspective or a re-

view of the arguments previously presented and rejected,

a fair reading of Seymour, Mattz, DeCoteau, Rosebud,

and Solem clearly sustains the views set forth in the opin-

ion in the Utah Supreme Court. However, as historians

and other commentators are quick to point out, if the

confusion and contradiction that seemingly runs through

this area of the law is ever to be clarified, set straight,

and properly focused, more is required here.* App. 1a-

57a. Another three decades of litigation rehashing issues

substantially settled for a century consistent with that

historical understanding, benefits no one. Yet, as the

Amicus Brief of the Navajo Nation attests, that is pre-

cisely what the future promises—unless this Court in this

case authoritatively reconciles these conflicts consistent

with the intent of Congress a century ago—a difficult

task to be sure, but one made somewhat easier by the

lessons learned since this Court was first presented with

this issue in 1962. Seymour, supra. With this purpose in

mind, Amicus County starts with a brief review of the

primary arguments presented and rejected in each of

these cases and the historic perspective available or es-

tablished at the time.

Such a review establishes two essential points. First,

as one would expect, each time the Court was subse-

quently presented with this issue more primary sources

were available from which a proper historical perspective

could be reconstructed and the intent of Congress more

conclusively ascertained. Secondly, the United States be-

8 See Campbell, Reservations: The Surplus Lands Act and the

Question of Reservation Disestablishment, 12 Am. Ind. L. Rev. 57

(1984) ; David R. Williams, State v. Perank: Is the Uintah-Ouray

Reservation “Nailed Down Upon the Border?”, 1992 B.Y.U. L. Rev.

1247. Also, see, Herbert T. Hoover, Congressional Intent Regard-

ing Jurisdiction on Ceded Indian Land During the Allotment Era;

LeAnn Larson LaFave, Congressional Intent Regarding Jurisdic-

tion on Ceded Indian Land During the Allotment Era Part Il: The

Law, Papers presented to the Western History Association, October

1986, reprinted in this App. 1la-57a.

cause of its inflexible “litigation position” in support of

a recognition of the original Reservation boundaries in

each case (disregarding the historical record, the intent

of Congress and other legitimate governmental interests)

has not made any positive contribution to the process. In

fact, the shifting but very sophisticated arguments of the

United States, in large part have served to perpetuate the

confusion and conflicts in this area of Federal Indian law,

making additional litigation even more certain. For this

reason, the central arguments of the United States are

specially tracked. The briefs of the United States in each

of the first four cases are set forth verbatim in App.

58a-154a.

Il. THIS COURT HAS CONSISTENTLY RECOGNIZED

THE SIGNIFICANCE OF PUBLIC DOMAIN TER-

MINOLOGY IN THE OPERATIVE LANGUAGE OF

SIMILAR GENERAL ALLOTMENT ACT STAT-

UTES AND THE UNITED STATES HAS CONSIST-

ENTLY AGREED WITH THIS VIEW.

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

We start with Seymour v. Superintendent, supra, when

this issue was first presented to this Court. Although we

now know that the 1906 Colville Act at issue was one in

a series of surplus land statutes enacted pursuant to the

General Allotment Act of 1887 (Dawes Act), a routine

matter for Congress by 1906, neither the General Allot-

ment Act of 1887 nor the limited legislative history of

the 1906 Act played any real role in the resolution of

the question. The Seymour Opinion does not cite the

General Allotment Act, Act of February 8, 1887, 24

Stat. 388, LD 13, or the legislative history of the 1906

Colville Act. The briefs are similarly silent with respect

to the General Allotment Act and the few citations to

the 1906 legislative history are set forth almost as an

afterthought. In short, Seymour was decided almost

without the benefit of any historical perspective—almost

because while neither the General Allotment Act nor the

legislative history of the specific Act in question played

any role in the decision, Petitioner did rely on the con-

trast between the 1906 Act and earlier 1892 “public do-

main” legislation that concededly disestablished the North

Half of the Colville Reservation. Brief for Petitioner at

10, Seymour. At best, this was a limited perspective but

certainly one that benefited Petitioner by simple contrast.

The fact that the public domain format of the 1892 Act

was the result of a refusal by Congress to ratify a previ-

ously negotiated 1891 cession agreement because of the

questionable nature of the title to the Colville Executive

Order Reservation and a Congressional concern that un-

desirable precedent might be recognized, was not briefed

or discussed. Antoine v. Washington, 420 U.S. 194, 213

(Rehnquist, J., dissenting); S. Rep. No. 664, 52d Cong.,

Ist Sess. (1892); see also, U.S. v. Pelican, 232 U.S. 442

(1914). Nor was it mentioned that the 1906 Act was

actually preceded by another similar cession agreement.

In any event, it is doubtful if any of the above would

have altered the views of the United States, arguing in

support of the Reservation boundaries of the South Half

of the Colville Reservation (“Solicitor General has urged

this construction upon the Court.”) Seymour at 357.

The Solicitor General’s three page argument was based

almost entirely on the 1948 statutory definition of Indian

Country, which, of course, begs the question and upon

subsequent Congressional recognition, primarily in 1956,

that the Reservation continued to exist. Memorandum

for the United States, App. 59a-60a. Neither the General

Allotment Act nor the historical perspective of the 1906

Act played any role in the brief for the United States. In

this light, Seymour concluded, without further citation,

that:

The Act did no more than open the way for non-

Indian settlers to own land on the reservation in a

manner which the Federal Government, acting as

guardian and trustee for the Indians, regarded as

beneficial to the development of its wards.

Seymour at 356 (emphasis added).

The United States later seized on this statement from

Seymour and tied it to the General Allotment Act of

1887 (which, as noted supra, was not even mentioned in

Seymour) in an attempt to attribute to both Seymour

and the General Allotment Act a new Congressional plan

or purpose consistent with a new argument that no sur-

plus land statute passed pursuant to the General Allot-

ment Act of 1887 was ever intended by Congress to dis-

establish portions of Indian Reservations.

The United States keyed on the General Allotment Act

of 1887 for more than one reason. Prior to that time,

Congress routinely utilized treaties, cession agreements

and other similar arrangements, some of which contained

allotment provisions, to disestablish reservations and open

territories throughout the United States to settlement for

decades:

[t]he policy of the Government from its earliest days

has been to restore Indian reservations or portions

thereof to the public domain as the exigencies of

advancing population required it....

H.R. Rep. No. 791, 50th Cong., Ist Sess. at 3 (1888)

LD 15. No one had ever attempted to even formulate

an argument that Congress never intended these actions

to disestablish the limits or boundaries of Indian reserva-

tions. If similar agreements, passed subsequent to 1887,

were not intended to have the same effect, the General

Allotment Act of 1887 was the only point in history that

Congress could have even arguably intended to have al-

tered such a fundamental historical process—at least in

the absence of some affirmative persuasive evidence that

Congress specifically intended to depart from that histor-

ical format, either generally or in a certain case. (The

United States could not produce such evidence at that

time—or, as a matter of fact, ever.)* The first oppor-

tunity for the United States to advance the new General

Allotment Act argument in this Court came in Mattz v.

Arnett, supra. Brief for the United States, App. 72a.

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

the United States argued forcefully for the broad sweep

4 There is no such evidence since most Congressmen from West-

ern States intended the same results: reservation disestablishment.

of Seymour tied to the General Allotment Act in this

respect, their position met with only limited success.

Brief of the United States, App. 7la-72a. The history of

the Klamath River Reservation at issue in Mattz was so

tortuous and fact specific, isolated and atypical, that the

Mattz dicta regarding the General Allotment Act, while

all that the United States could have hoped for, did not

really seem pivotal to the decision. Certainly, the United

States repeatedly told the Mattz Court:

The Act of 1892 can properly be understood only in

light of the General Allotment Act which Congress

had recently passed.

In our view, the Act of June 17, 1892, can properly

be understood only in light of two considerations:

(1) what Congress had done five years earlier in

the General Allotment Act... .

The policy of the Act was to continue the reserva-

tion system and the trust status of Indian land... .

Because of the General Allotment Act and these spe-

cial Acts opening land within reservations to settle-

ment, it is common today to have extensive non-

Indian holdings within reservations. As we show in

point III, infra, however, allotments to Indians and

sales to non-Indians, whether under the General Al-

lotment Act or special Acts, do not in themselves

terminate the reservations. . . .

This Court’s more recent decision in Seymour v.

Superintendent, 368 U.S. 351, is, in our view, con-

trolling here. . . .

Brief of the United States, App. 67a, 71a, 72a, 8la (em-

phasis added). See also, App. 68a, 72a, n.8.

And at oral argument, the United States squarely placed

this issue “into a little bit of historical perspective”:

This same policy is recognized more recently by this

Court in Seymour v. Superintendent and also has

been codified by Congress in its definition of Indian

country as including all the land within the bound-

aries of an Indian reservation whether patented or

allotted or not.

Transcript of Oral Argument at 19, Mattz. See also, Oral

Argument at 13, 14, 15, 20, 21.

At the same time, to shore up this new General Allot-

ment Act argument and supplement this “little bit” of

historical perspective for the Court, the United States also

discussed certain statutes that concededly disestablished

Indian reservations. According to the United States, the

Court could then, by contrast, look to these examples in

determining when Congressional action was really in-

tended to disestablish an Indian reservation—an instant

historical perspective of sorts. Brief of the United States,

App. 75a. Following Petitioner’s lead in Seymour, and

especially in light of this aspect of the Seymour opinion,

the controlling example cited by the United States of a

Congressionally mandated disestablishment was the 1892

Colville statute, where the operative language restored

the north half of the reservation to the public domain.

As the United States told this Court in Mattz, among

other things,

This Court’s more recent decision in Seymour v.

Superintendent, 368 U.S. 351, is, in our view, con-

trolling here. . . . In holding that the Act did not

terminate the reservation there at issue, the Court

emphasized the absence from the Act of language

abolishing the reservations or “restoring that land to

the public domain” (368 U.S. at 355).

Brief for the United States, App. 8la (emphasis added).

Other examples were also listed by the United States to

support this “by contrast” argument. Brief for the United

States, App. 75a.

At oral argument, the United States repeated the point:

MR. SACHSE .. . In closing, since I assume I am

out of time, I refer the Court to page 17 of our brief

where we have samples of language that Congress

used when it did want to discontinue a portion of a

reservation.

Transcript of Oral Argument at 20-21, Mattz.

Because the “absence of the public domain language”

example, supra, figures prominently in the construction

of the Ure legislation, this aspect of the “by contrast”

argument also deserves special emphasis and further at-

tention. For this reason, it is excerpted separately in the

discussion and notes infra. For the most part, the other

examples do not merit further discussion. The text infra

establishes that they were representative of extreme and

atypical situations encountered by Congress only on rare

occasions and decades apart.

Without question, the Martz opinion reflects both argu-

ments. First, with respect to the General Allotment Act:

Its policy was to continue the reservation system and

the trust status of Indian lands, .... See § 6 of

the General Allotment Act, 24 Stat. 390; United

States Department of the Interior, Federal Indian

Law 115-117, 127-129, 776-777 (1958) ....

. . . This Court unanimoucly observed in an analo-

gous setting in Seymour, id., at 356.

Mattz at 496, 497.

Secondly, with respect to the “by contrast” argument

(specifically including the “absence of public domain lan-

nd example of the United States), the Court in Mattz

noted:

More significantly, throughout the period from 1871-

1892 numerous bills were introduced which expressly

provided for the termination of the reservation and

did so in unequivocal terms.” . . .

“ Congress has used clear language of express termi-

nation when that result is desired. See, for example,

. . 27 Stat. 63 (1892) adopted just two weeks

after the 1892 Act with which this case is concerned,

providing that the North Half of the Colville Indian

Reservation (. . . be, and is hereby, vacated and

restored to the public domain”), and Seymour y.

— 368 US., at 354; 33 Stat. 218

Mattz at 504, n.22 (emphasis added).

When this Court, a short two years later, was really

presented with a typical surplus land statute specifically

patterned and enacted pursuant to the terms of the Gen-

eral Allotment Act, with all of the supporting documenta-

tion of both the specific Act as well as the General Allot-

ment Act, the General Allotment Act dicta in Mattz did

not dissuade this Court, including the author of the

Mattz opinion, from correctly concluding that surplus

land statutes passed pursuant to the General Allotment

Act were also intended and routinely passed by Congress

to disestablish Indian reservations. DeCoteau v. District

County Court, 420 U.S. 425 (1975). Predictably, the

United States again argued forcefully in DeCoteau for a

different result.

C. DeCoteau v. District County Court, 420 U.S. 425

(1975). In DeCoteau, the surplus land Statute at issue

was one of eight similar agreements jointly ratified in an

1891 Appropriation Act, each of which was specifically

tailored to the provisions in the General Allotment Act,

which had just been passed after nearly a decade of

focused debate. For these two reasons, fortuitous in

retrospect, the historical record consisted of hundreds of

pages directed to this aspect of the General Allotment Act

(Section 5) and the affect the agreements were under-

stood and intended to have. And for the first time, all of

this primary documentation was excerpted and presented

to the DeCoteau Court in several hundred pages of briefs,

that set forth a complete and proper historical perspec-

tive.” That perspective established that while simple allot-

5 For example, in 1892, the Commissioner of Indian Affairs con-

firmed :

The policy of the Government, rendered fixed and definite by

the passage of the severalty law in 1887, had for its object the

twofold purpose of allotting lands in severalty, with the view

of stimulating the individuality of the Indians and promoting

their personal prosperity, and also of rendering available for

white settlement vast areas of surplus lands not needed by the

Indians. Indian lands restored to the public domain and thrown

open to white settlement under the homestead law. . .

S. Rep. No. 57, 53d Cong., Ist Sess. at 2-5 (1893) (LD 26) (em-

phasis added).

ment per se (Section 6 of the General Allotment Act)

was only intended to disestablish reservations at some

point in the foreseeable future, a separate and distinct

surplus land statute opening the reservation or a portion

thereof to settlement pursuant to Sec. 5 of the General

Allotment Act, was intended to disestablish the affected

reservation pro tanto on the date of the opening set forth

in the Presidential Proclamation, precisely in the same

manner that pre-1887 enactments had disestablished res-

ervations for decades, when Congress and/or the Presi-

dent authorized similar legislation.

The United States elected to ignore the force of this

documentation and instead, urged the DeCoteau Court to

recognize the continuing existence of the original reser-

vation boundaries on the basis of Seymour and Mattz and

the United States’ revisionist theory of the General Allot-

ment Act. While agreeing that the focal point of the

issue had to be the General Allotment Act of 1887, the

United States pressed the point that Seymour and Mattz

were both openings pursuant to that Act, and that no

Act pursuant to the General Allotment Act, according to

the United States, was ever intended to effect reservation

disestablishment except at some future point in time

(again, as in the Brief for the United States in Mattz,

blurring the distinction between allotment per se (Section

6 of the General Allotment Act) which eventually re-

sulted in some non-Indian ownership within the limits of

Indian reservations, but was never intended to immedi-

ately disestablish the reservations and surplus land stat-

utes enacted pursuant to Sec. 5 of the General Allotment

Act, which repeatedly accomplished this result.) The

United States said:

The 1891 Act did not specifically change the bound-

aries of the Reservation or return land to the public

domain, and its repeated references to the General

Allotment Act show that Congress intended no more

than to “open” the Reservation for non-Indian settle-

ment. This Court’s decisions in Seymour y. Superin-

tendent, 368 U.S. 351, and Mattz v. Arnett, 412

U.S. 481, show that this limited purpose is consistent

only with preservation of the Reservation as a juris-

dictional unit... .

. . . The Agreement, in its preamble, twice states

that it is made under the authority of the Act of

February 8, 1887, the General Allotment Act, and

quotes from that Act....

Several things are immediately apparent. The nego-

tiation with the Indians, the allotments to them, and

the cession made by them are expressly made under

the authority of the General Allotment Act. The

boundaries of the Reservation are not expressly

altered and no separately described portion of the

Reservation is vacated, returned to the public do-

main,....

It was not the purpose of the General Allotment Act

to divide reservations into a scattering of land under

federal jurisdiction and a scattering under state juris-

diction. Seymour v. Superintendent, 368 U.S. 351,

357-358. Rather, as this Court stated in Mattz,

supra, 412 U.S. at 497, quoting from Seymour,

In sum, while the General Allotment Act of 1887

provided for some settlement of non-Indians within

reservations, the congressional intent was to continue

the reservation system...

Brief for United States, App. 92a, 94a, 95a, 96a.

At oral argument, the United States pressed the same

points.

MR. SACHSE: .. . And in this agreement and

then in the Act of Congress that ratified it, there are

numerous references to the General Allotment Act.

MR. SACHSE: .. . If this Court were to hold

this reservation had been abolished vy the 1891

Act, which I think would be a very restrictive and

artificial interpretation of what the Court’s done in

Mattz and in Seymour vs. Superintendent, ... .

Transcript of Oral Argument at 11, 21, Erickson vy.

U.S. ex rel. Feather, U.S. Sup. Ct. No. 73-1500, decided

with DeCoteau v. District County Court, 420 U.S. 425

(1975). See also Oral Argument at 13, 17.

In addition, the United States submitted a series of very

sophisticated arguments from little scraps of language in

Seymour and Mattz to support this general proposition.

No degree of sophistication could, however, overcome the

problem the United States never addressed. Namely, all

of the contemporary historical evidence undisputedly

pointed to the opposite conclusion.

For example, even Senator Dawes himself made the

point in the DeCoteau debate and the DeCoteau Court

set forth his remarks at length:

“The remainder of the bill is made up of the other

appropriations necessary to carry out the agreements

that were made with Indians for the surrender of a

large portion of their reservations to the public do-

main. In the main it has cost the United States be-

tween $1.25 and $1.50 an acre for some ten or

eleven million acres of land. All of this land is

opened by this bill to settlement as part of the public

domain upon the payment by the settler . . .”

Remarks of Sen. Dawes, id., at 3879 (emphasis

added). DeCoteau at 441.

Nor was there any doubt that Sec. 5 of the General Al-

lotment Act was the linchpin of the entire process. The

DeCoteau documents referred repeatedly to this aspect

of the General Allotment Act. Brief for the Respondent

at 72-113, DeCoteau. And the Court in DeCoteau spe-

cifically recounted this fact in the text of the DeCoteau

opinion:

In 1887, the General Allotment Act (or Dawes Act)

was enacted in an attempt to reconcile the Govern-

ment’s responsibility for the Indians’ welfare with

the desire of non-Indians to settle upon reservation

lands." The Act .. . Against this background, a

series of negotiations took place in 1889 with the

objective of opening the Lake Traverse Reservation

to settlement.

. the Secretary of the Interior a set of draft

instructions for the guidance of a Commission to

negotiate with the Sisseton and Wahpeton Indians

for the sale of their surplus lands.’* The instructions

noted that the negotiations would be pursuant to § 5

of the General Allotment Act, .. .

DeCoteau at 432, 434 (emphasis added). Also see

DeCoteau at 436, 438, and 441.

In addition, the cession format utilized by Congress in

previous decades (with the end result never questioned in

terms of reservation boundaries), was only slightly mod-

ified at this point in time (1887 through the early 1900's).

As a result, the United States could only argue that the

cession format itself was probative of nothing because it

was not within the list of self-serving “by contrast” ex-

amples the United States now said Congress utilized when

Congress “clearly” intended to effectuate this result (the

list noted supra was compiled by the United States and

noted in Mattz at 49%-11r-+5. In the original version of

22-the list presented to the Court in Mattz, the United States

had included representative cession language. Brief of

the United States, App. #9a—#-+8. When that example

did not appear in the Mattz opinion, the United States

omitted any mention of this fact to the Court, simply

adopted the Mattz list and then argued throughout De-

Coteau that cession language was meaningless. Brief of

the United States, App. 97a.

Even without a specific historical point of reference, it

is difficult to believe that the DeCoteau Court would have

found this argument credible when actually presented

with a real cession Agreement. When all of the DeCoteau

documents conclusively established that the DeCoteau

cession format was still the rule at this point in time i.e.,

after the General Allotment Act, rather than the excep-

tion, this argument was soundly rejected. Cession ter-

minology was “precisely suited” to disestablishment and

the remainder of the sophisticated arguments of the United

States were noted and rejected for that reseason. De-

Coteau at 445.

In addition to clearly rejecting the revisionist General

Allotment Act argument of the United States, DeCoteau

also sheds further light on the significance of public domain

terminology. The United States continued to equate pub-

lic domain terminology with reservation disestablishment,

the foundation of the “by contrast” argument. In order

to argue against disestablishment in DeCoteau, however,

that support was qualified by insisting that the public

domain terminology appear on the face of the Act (a

particularly significant position in any event, in light of

the face of the Utah legislation). In this fashion, the

public domain argument was featured foremost in the

brief for the United States:

SUMMARY OF ARGUMENT .. . The 1891 Act

did not specifically change the boundaries of the

Reservation or return land to the public domain, . . .

The boundaries of the Reservation are not expressly

altered and no separately described portion of the

Reservation is vacated, returned to the public do-

main, or set aside for settlement.

THE ABSENCE OF LANGUAGE IN THE 1891

ACT EXPRESSLY ALTERING THE BOUND-

ARIES OF THE RESERVATION OR RETURN-

ING LAND TO THE PUBLIC DOMAIN SHOWS

THAT THE RESERVATION BOUNDARIES

WERE NOT ALTERED

In a footnote, the Court gave the following examples

of termination language [Mattz, supra, 412 U.S. at

504, n. 22]:

2. 27 Stat. 63 (1892) ( * * * the North Half

of the Colville Indian Reservation “the same

heing a portion of the Colville Indian Reserva-

tion * * * be, and is hereby vacated and re-

stored to the public domain’’).

There is no such language in the 1891 Act at issue

here. The Reservation is not discontinued. A dis-

crete portion of it is not “vacated and restored to

the public domain.” The reservation lines are not

abolished.

First the “cession” is not an outright return of the

land to the public domain...

Brief for the United States, App. 91a-92a, 95a, 97a, 98a

(emphasis added ).

In oral argument, the United States started off by at-

tempting to make this modified argument, again using the

1892 Colville, “restore to the public domain” example to

illustrate the point.

MR. SACHSE: There is no such thing as was

true with the north half of the Colville Reservation,

where a particular part of the reservation was cut

off and express language was used, saying that that

has been removed from the reservation. You’ve heard

some talk about the public domain. What’s impor-

tant in this Act is there is no language saying that

this was returned to the public domain... .

QUESTION: But, as a matter of fact, it’s treated

as the public domain.

MR. SACHSE: I—lI don’t know what you mean

by that.

QUESTION: Well, what happened after the ceded

property?

MR. SACHSE: After the property was ceded,—

QUESTION: Yes?

MR. SACHSE: —the government sold that land

under—

QUESTION: Treated it like the public domain.

MR. SACHSE: Well, only in the exact same sense

that it—

QUESTION: Well, it was handled as part of the

public domain by the same system that the public

domain was handled.

QUESTION: Weren't they acting for the Indians?

MR. SACHSE: That is to say—and I'll try to get

this in the—I think I may do better to break it

down into historical perspective.

Transcript of Oral Argument at 11-12, Feather.

The historical perspective the United States then re-

lied on was a quick reference to the “actual dynamics”

of Seymour and Mattz. As DeCoteau attests, this his-

torical perspective was clearly not persuasive.

The DeCoteau Opinion frames the issue in terms of

whether the Lake Traverse Reservation was disestab-

lished “and returned to the public domain” by the 1891

Act. DeCoteau at 426-427. Respondent’s question pre-

sented included similar phraseology (“disestablished said

reservation and restored the lands to the public domain”).

Brief for Respondent at 2, DeCoteau. References to the

public domain concept appear throughout the DeCoteau

documents and the opinion of the Court significantly sets

forth representative excerpts in extended quotations (i.e.

the “surrender of a large portion of their reservations to

the public domain” and the “All this land is opened by

this bill to settlement as part of the public domain.” re-

marks of Senator Dawes, DeCoteau at 425).

In addition, there is no question that the Court in

DeCoteau relied on the statements of the sponsors as well

as the “public domain by contrast” example previously

advanced by the United States in Mattz.

That the lands ceded in the other agreements were re-

turned to the public domain, stripped of reservation

status, can hardly be questioned, and every party

here acknowledges as much. The sponsors of the

legislation stated repeatedly that the ratified agree-

merts would return the ceded lands to the “public

domain.” See supra, at 440-441. Cf. Mattz v. Ar-

nett, 412 U.S., at 504 n.22 [Listing 1892 Colville

“public domain” statute. ]

In Seymour, the Court sharply contrasted the 1906

Act, which provided only for non-Indian settlement,

with an 1892 Act, which plainly “‘vacated’” and

restored “‘to the public domain’” the northern por-

tion of the Colville Reservation. Seymour v. Super-

intendent, 368 U.S., at 355. The 1891 Act before

us here is analogous to that 1892 statute.

DeCotzau at 446, 448-449 (emphasis added).

In this respect, the United States did contribute something

to the process. DeCoteau confirms and makes clear that

the public domain concept, whether expressed on the face

of the act or in the legislative history and surrounding

circumstances, should be equated with reservation dis-

establishment. The Ute legislation qualifies in both

respects.

D. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977). Subsequent to DeCoteau, the United States re-

sisted the force of the decision as if DeCoteau had never

been decided. In 1977, when this Court was presented

in Rosebud Sioux Tribe v. Kneip, with three additional

Sec. 5 surplus land statutes considered by Congress a

decade after the DeCoteau surplus _land statutes were

passed, the United States again argued that after adopting

the General Allotment Act, Congress never intended this

type of statute to disestablish portions of Indian reserva-

tions. As in the past, reliance for this argument was

placed almost entirely upon Seymour and Mattz as dis-

cussed supra. In the brief, the United States specially

emphasized that Mattz noted:

Placing the 1892 Act into the historic context of the

General Allotment Act of 1887, 24 Stat. 388, the

[Mattz] Court further observed that the Allotment

Act “permitted the President to make allotments of

reservation lands to resident Indians and, with tribal

consent, to sell surplus lands. Its policy was to con-

tinue the reservation system .. .

Brief for the United States, App. 122a (emphasis in

original text).

In the discussion of DeCoteau, the United States never

even mentioned the role played by Sec. 5 of the General

Allotment Act in the DeCoteau process. Brief for the

United States, App. 122a. According to the United States,

DeCoteau was important primarily because of the differ-

ences between the Act there and the Rosebud legislation.

Namely, the unilateral nature of the Congressional action

in Rosebud and the uncertain payment in trust for the

Rosebud land.

At oral argument, the United States repeatedly stressed

the revisionist theory of the General Allotment Act. De-

Coteau was mentioned only in passing and then only

to somchow support continued reservation boundaries

throughout this period. Transcript of Oral Argument at

20, 21, 27, 29, Rosebud.

The Rosebud Court, again including the author of the

Mattz opinion, rejected the arguments of the United States.

And at the outset, the Court set forth the underlying

section of the Rosebud legislation that controlled the

process, which incorporated “verbatim” Sec. 5 of the

General Allotment Act of 1887:

§ 12, 25 Stat. 892,...

This reproduced, verbatim the language of the Gen-

eral Allotment Act, §5, Act of Feb. 8, 1887, 24

Stat. 389.

Rosebud at 589, 590 (emphasis added).

Next, the Court made specific reference to the “familiar

forces” noted in DeCoteau and the provisions of a 1901

Act that generally authorized the Secretary of the Interior

to also set the process in motion. Rosebud at 590.

Then, the Rosebud Court proceeded, in the most defini-

tive Opinion to date, to squarely address each and every

argument, sophisticated arguments to be sure (and there

were many), advanced in support of a Court restoring

the original boundaries of the Rosebud Reservation. A\l-

though one or two minor exceptions might exist, a careful

reading of Rosebud, together with DeCoteau as historical

background, establishes that the United States, the Peti-

tioner and supporting Amnici, have not advanced any argu-

ments of substance since that have not already been

answered there. The Utah Supreme Court was on solid

ground when it still looked to and relied on Rosebud for

guidance in resolving similar questions involving the Ute

legislation.

In light of the persistence of the United States with

respect to Sec. 5 of the General Allotment Act, the posi-

tion of the United States regarding the “by contrast”

argument and the public domain example was similarly

predictable. As in DeCoteau, the United States in Rose-

bud continued to equate public domain terminology with

disestablishment, the foundation of the “by contrast”

argument. In order to argue against disestablishment, in

Rosebud, however, that support was even more qualified

than in DeCoteau. Not only did the United States con-

tinue to insist that the public domain terminology appear

on the face of the Act, but other arguments were also

advanced to explain why Congress never technically

restored the lands to the public domain even if Congres-

sional documents repeatedly stated that this was the effect

of the legislation. In this fashion, the public domain argu-

ment still featured prominently in the Brief for the United

States.

In the Act of March 2, 1889, Congress ‘restored to

the public domain’ (25 Stat. 896) one-half of the

Great Sioux Reservation .. .

The Acts of 1904, 1907, and 1910, do not dem-

onstrate an intention to return lands to the public

domain, and the clear language of other Acts ex-

pressly restoring lands to the public domain is

notably absent.

In 1892, the United States expressly vacated and

restored a portion of the Reservation ‘to the public

domain,’ 27 Stat. 62, 63.

These distinctions led to the conclusion that the

Lake Traverse Reservation was extinguished and the

land restored to the public domain. . . .

. . this, the Court held, restored the land to the

public domain and extinguished the Reservation. 420

U.S. at 446-447. But under the Rosebud Acts, the

federal government did not buy the Indians’ land.

The government acted merely as a trustee for the

Tribe in selling its land to non-Indians; the land

passed from the Indians to private individuals. It

was not first made part of the public domain, .. .

This is particularly true when, as here, Congress

demonstrated quite clearly that it did not intend to

place the Indian lands within the public domain.

The language of the Acts themselves does not dis-

close an intent to return land to the public do-

main. ...

The 1904 Act nowhere provides that the Reservation

was abolished or that the lands were to be restored

to the public domain... .

Again no mention is made that the Reservation is

pro tanto terminated or that the lands were to be-

come public lands.

This reticence is in marked contrast to the express

language used by Congress in other statutes. . . .

27 Stat. 63 (1892) (“the same being a portion of

the Colville Indian Reservations * * * be, and is

hereby, vacated and restored to the public domain;

_. . See also Mattz v. Arnett, supra, 412 US. at

504, n.22.”

Brief for the United States, App. 113a, 118a, 120a, 123a,

125a, 126a. See also App. 128a, n.15, 130a, 137a (em-

phasis added).

Reference to the public domain concept also appears

throughout the Rosebud documents. As the Rosebud

Court noted at the beginning of the opinion, the very act

that created the Rosebud Reservation, the 1889 Great

Sioux Act, contained public domain terminology. Rose-

bud at 589.

Moreover, Congress most explicitly and repeatedly re-

ferred to public domain when implementing the state

school land Grant. The Rosebud opinion specifically

noted one representative passage where the Senate sponsor

described the process and it was set forth at length. 35

Cong. Rec. 1423 (1904); Rosebud at 600, n.21.

As in DeCoteau, the public domain concept, whether

expressed on the face of the act or in the legislative his-

tory, was important in Rosebud and equated with reserva-

tion disestablishment.°

Additionally, Rosebud stressed that in each instance,

the underlying premise was that “congressional intent”

will control. Rosebud at 586. Rosebud also recognized

Seymour and Mattz to simply stand for the proposition

that the mere fact that a reservation had been opened to

settlement would “not necessarily mean” that the opened

area had lost its reservation status. Rosebud at 586-587.

More importantly, Rosebud reaffirmed that DeCoteau

established that reservation status could not survive in

the face of a “congressionally manifested intent to the

contrary.” Rosebud at 587. While DeCoteau also spe-

cifically established that surplus land statutes enacted

pursuant to Sec. 5 of the General Allotment Act were,

after 1887, intended by Congress to accomplish that re-

sult (DeCoteau), Rosebud made clear that Congress

never intended to alter that fundamental understanding

when, pursuant to Sec. 5 of the General Allotment Act

in the Rosebud legislation noted supra, Congress contin-

ued to enact similar legislation throughout the first decade

of the twentieth century. Although Congress altered the

manner of direct payment in the early 1900's and relied

on its plenary power in Indian affairs, affirmed by this

Court in 1903 in Lone Wolf v. Hitchcock, 187 U.S. 553

* With respect to public domain, the brief of Amicus Ute Indian

Tribe, at 16, n.20, quotes Rosebud in the following manner:

. . . this Court’s counsel that ‘the question of whether lands

are in the public domain is separate from the question of in-

tent to disestablish.’ See, Rosebud Sioux Tribe v. Kneip, 430

U.S. 584, 604 n.27 (1977).

The Rosebud note 27 in United States Reports states:

. . . the question of whether lands became public lands is

separate from the question of intent to disestablish. . .

Rosebud at 604, n.27.

(1903), as the Rosebud Court explained at length, neither

of these changes altered that fundamental Congressional

understanding. Rosebud at 598-599, n.20.

With respect to the changed method of payment (pay-

ment from the homesteader to the United States in trust

for the tribe rather than from the United States directly

to the tribe in trust), the Rosebud Court correctly found

“no indication that Congress intended to change any-

thing other than the form of, and responsibility for, pay-

ment.” Earlier, the Court had cited with approval the

Court of Appeals’ view:

As the Court of Appeals noted, and as all parties

appear to agree, “[t]he problem in the Congress was

not jurisdiction, title, or boundaries. It was, simply

put, money.” 521 F.2d 87, 94.

Rosebud at 591, n.10.

With respect to the unilateral nature of the Congres-

sional enactment, the Court set forth the relevant passage

of Lone Wolf, specifically relied on by Congress at the

time. Rosebud at 594.

Moreover, one should have expected that these changes

would, over time, result in a new format for the Sec.

5 surplus land statutes. And this was in fact the case.

But importantly, as Rosebud also establishes, the changes

were not intended by Congress to alter the fundamental

policy of disestablishment, then in effect for nearly

two decades. With consent no longer Congressionally

required, Sec. 5 surplus land statutes in this cession

format (1887-1905) were soon modified. Rosebud at 598.

After that, the format was utilized only when consent was

readily obtainable in council and then only to evidence

an informal understanding. Rosebud at 607, 612. There-

after, by 1907, a new format was routinely adopted where,

as Rosebud also attests, the Secretary of the Interior was

authorized to “sell and dispose of a portion of the res-

ervation” (arguably strong language in perspective), with

the balance of the provisions of each act modified to meet

whatever the situation then required. Rosebud at 608.

The changes in the legislative format therefore reflect

no change in Congressional intent. As the Rosebud

opinion and the Rosebud documents attest, this is not

merely an arguable point, but an historically documented

fact. To be sure, these changes altered some aspects of

the nature of the discussion and the transaction. But it

mattered little that the 1904 Rosebud Act was technically

not a “cession.” As the Court in Rosebud explained:

As a matter of strict English usage, petitioner is

undoubtedly correct; “cession” refers to a voluntary

surrender of territory or jurisdiction, rather than a

withdrawal of such jurisdiction by the authority of

a superior sovereign. But as Mr. Justice Holmes

commented, we are not free to say to Congress:

“We see what you are driving at, but you have not

said it, and therefore we shall go on as before.”

Johnson v. United States, 163 F. 30, 32 (CAI

1908)....

The use of the word “cession” in the 1904 Act,

which was not consented to by the required ex-

traordinary majority of the Tribe, does not make

the meaning of the Act ambiguous... .

The word is technically misused but the meaning is

quite clear.

Rosebud at 597.

And it mattered little that payment in trust, rather than

directly from the United States, would create a lingering

beneficial interest in the opened lands until settled on or

otherwise disposed of, such as that recognized in Ash

Sheep Co. v. United States, 252 U.S. 159 (1920). For,

as the Rosebud Court correctly affirmed:

This preceding status could exist even if the lands

were disestablished from a reservation. United States

v. Pelican, 232 U.S. 442, 449 (1914); cf. Ash

Sheep Co. v. United States, 252 U.S. 159, 166

(1920). As recognized by the Court of Appeals,

“the fact that a beneficial interest is retained does

not erode the scope and effect of the cession made,

or preserve to the reservation its original size, shape,

and boundaries.” 521 F. 2d, at 102. The question

of whether lands become “public lands” under Hitch-

cock and Ash Sheep, is therefore, logically separate

from a question of disestablishment. United States v.

Pelican, supra. As the issue is not before us, we need

- I whether or not the lands became “public

ands.”

Rosebud at 601, n.24."

In the final analysis, Rosebud establishes that the Sec. 5

Surplus Land Statutes, even as subsequently modified in

Rosebud, were intended by Congress to disestablish reser-

vations. Contrary to the repeated submissions of the

United States, supported only by citations to Seymour

and Mattz and other undocumented arguments, Congress

never intended either the General Allotment Act or the

subsequent changes in format to alter this fundamental

concept of the entire process. In the absence of some

Statute, Senate report or House report, or other conclusive

evidence of such a congressional purpose, which has never

surfaced to date, this Rosebud perspective is the one that

should be controlling here. The Ute legislation parallels

the Rosebud legislation in both time and substance.

Nothing in the opinion of this Court in Solem v. Bartlett,

supra, in which a subsequent statute was construed, was

intended to detract from that established historical per-

spective.

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

the United States combined and restated so many varia-

tions of both of these arguments that even a summary

7 Indeed, this lingering beneficial interest was undoubtedly “logi-

cally separate” from the question of disestablishment. The under-

lying facts in Ash Sheep subsequently established that the act at

issue in Ash Sheep which created the lingering beneficial interest

there, for reasons peculiar to the location of the Crow Reservation,

described new diminished reservation boundaries and specifically

delineated and separated the “ceded area” with the lingering bene-

ficial interests, from the contiguous block of unceded land, desig-

nated “the diminished Crow reservation.” Little Light v. Crist,

649 F.2d 682 (9th Cir. 1981); Montana v. Crow Tribe, 819 F.2d

895 (9th Cir. 1985), summarily aff'd 484 997 (1988).

review is difficult to present in context. Moreover, since

the United States did not participate in oral argument,

that abbreviated source is simply not available. In short,

it can fairly be stated that the United States argued

whatever was necessary to resist reservation disestablish-

ment once again in Solem. Although inaccurate and half-

true in many respects, according to the United States,

these arguments made clear that some surplus land stat-

utes passed pursuant to the General Allotment-Act were

intended by Congress to disestablish portions of Indian

reservations (a significant concession) and others, even

if so intended, should not be so construed by the Court

at this point in time, unless the subsequent settlement of

the area was pervasive. Solem essentially reflects the

same sentiment.

Beyond that, Solem is also important here because of

the one very significant aspect of the public domain argu-

ment specifically set forth in Solem that the United States,

Petitioner and supporting Amici, consistently avoid or

otherwise ignore. In conclusion, it bears repeating, espe-

cially in the context of this brief.

The fundamental error of the en banc majority cen-

tered around a misconstruction of Solem regarding the

significance of the public domain terminology. Up front,

Solem specially referenced public domain terminology in

conjunction with other operative language that strongly

suggested disestablishment and the en banc majority

missed the point. Solem at 470, citing Seymour at 355

(restored to public domain language). Instead, the en

banc majority focused on a footnote in that portion of

the Solem opinion directed only to miscellaneous provi-

sions in the balance of the Solem Act. Solem at 474-475.

Even there, the en banc majority simply painted Solem

with too broad a brush.

CONCLUSION

The judgment of the Utah Supreme Court should be

affirmed.

August 18, 1993

Respectfully submitted,

JOANN B. STRINGHAM

Deputy Uintah County Attorney

152 East 100 North

Vernal, UT 84078

(801) 781-0770

Tom D. ToBIN

Counsel of Record

KENN A. PUGH

TOBIN LAW OFFICES, P.C.

P.O. Box 730

422 Main St.

Winner, SD 57580

(605) 842-2500

APPENDIX

CONGRESSIONAL INTENT REGARDING

JURISDICTION ON CEDED INDIAN LAND

DURING THE ALLOTMENT ERA: HISTORY

Conflict regarding the prerogatives of tribal govern-

ments on Indian reservations has escalated steadily in re-

cent years. Some resident tribal enrollees have com-

plained to outsiders. “THE U.S. CONSTITUTION

STOPS HERE,” was the headline of a series about Red

Lake Reservation in the Minneapolis Star and Tribune.’

Indian courts were “islands of injustice,” wrote investi-

gative reporters. Reservation residents were not repre-

sented by qualified counsel. Ill-trained judges ordered,

and self-serving politicans enforced, penalties for alleged

infractions to satisfy personal interests. Their Red Lake

constituents were either driven into exile out of fear,

or stripped of opportunities and possessions, “‘with al-

most nowhere to turn” for help.

The problem was not restricted to Ojibway Country,

the reporters added. On 487 reservations scattered across

the country, many Indians were threatened by the loss of

justice due them as citizens of the United States without

recourse, and most reservation residents were deprived of

economic opportunities because “businesses . . . important

to the well-being of reservation economies” were “scared

away by unjust and incompetent tribal courts.” “Federal

judges refuse[d] to hear appeals.” “Congress . . . failed

to pass laws curbing abuses,” even though it held con-

stitutional “authority over Indian tribes,” and the Bureau

of Indian Affairs had “powerful leverage”’ to enforce

federal laws with “the $1.4 billion it dispenses annually

for tribal governments.”

As they championed the rights of Indians who lived

under the jurisdiction of tribal governments, the Minne-

apolitans were left with the embarrassing conclusion that

reservation leaders were not competent to govern without

federal supervision. Their escape from the charge of

racism was a ploy used often by outside observers who

breeze through Indian Country. To blame were not self-

1 January 4-7, 1986.

a on

serving tribal politicans, after all, but “the long history

of white men’s exploitation of Indians.”

Cultural self-condemnation did not assuage the resent-

ment of Oglala Sioux journalist Tim Giago. From his

Lakota Times office at Pine Ridge, he wrote not only in

defense of the chief judicial officer at Red Lake, but also

in protest against non-Indian journalists who passed judg-

ment on reservation societies. Using news releases about

Wounded Knee-1973 and Red Lake-1986 as prime ex-

amples, he accused uninformed Whites of calling Indians

incompetent without justification, failing to give the vic-

tims of journalistic condemnation a chance to respond,

and reaching erroneous conclusions that impaired the

opportunities of all tribal members. “It is patently wrong

for white reporters to overlook the ancient customs and

laws of the much older tribal governments” when apprais-

ing the applications of justice, wrote Giago. And he

challenged the authority of the United States to intrude,

contending that its Constitution was “not the law of the

land on the sovereign Indian nations.”

At the end, Giago employed a tactic used often by In-

dians to escape the charge of racial bias for the blanket

condemnation of White people. To blame for problems

on the reservations was not abuse by non-Indians in gen-

eral, but erroneous judgments by White historians in

particular, who persist in teaching that Indians were “un-

civilized savages when the white man first arrived.” 2

More troublesome still than conflict about the affects

of tribal governance on Indians has been distress regard-

ing judicial sanction for tribal jurisdiction over White

people who live within the original boundaries of Indian

reservations. While weighing arguments about the civil

authority of Indians submitted by tribal lawyers and fed-

eral spokesmen against counter arguments advanced by

counsel for state or local governments, federal judges

have ruled indecisively on one side, then on the other.

~ 2Sioux Falls Argus Leader, March 30, 1986.

Non-Indians have felt betrayed by attacks against state

and local authority that has worked for them through

several generations. They have complained that tribal

governance might deprive them of time-honored con-

stitutional guarantees. (See Appendix A) Indian leaders

have asked why White people, who have managed their

affairs for so long in the past, could not live under tribal

authority in years to come.

Consternation escalates partly because of legal im-

plications, and more due to inevitable economic conse-

quences. At issue in Sioux Country during the summer

of 1986 were tribal ordinances designed to ease Indian

unemployment in excess of eighty percent on reservations

with the preferential hiring of tribal enrollees on federal

road projects, which have been accomplished mainly by

Whites in the past. South Dakota Governor William

Janklow took exception with a challenge to~ the legality

of a special tax to fund the training of prospective In-

dian road workers.’ At issue in the summer of 1986,

too, was whether Pine Ridge Reservation residents should

purchase Oglala tribal or South Dakota state license plates

for their automobiles; and whether federal, state or tribal

jurisdiction should prevail in the regulation of tribally

operated bingo halls, which have been under investigation

for possible corruption by crime syndicates.‘ In these

instances, increasing intercultural antagonism between the

families of persons seeking jobs, on the one hand, and

friction between state and tribal officials in search of

revenues, on the other hand, will be inevitable results.

Because tribal jurisdiction has so many potential ap-

plications of practical and economic consequence, no fed-

eral action to restrict or expand it will satisfy both tribal

members and White people. At the grass roots, they are

ever at odds, and express divergent opinions regarding

how the conflict should be resolved. Most non-Indians

3 Sioux Falls Argus Leader, July 22, 1986.

* Sioux Falls Argus Leader, July 27, September 16, 1986.

and some relocated mixed-bloods believe that tribal gov-

ernment if not the entire reservation system ought to be

abolished. Nearly all Indians who occupy allotments or

derive noteworthy benefits from reservation affiliations

contend that reservation life under tribal authority is es-

sential to cultural survival, but they disagree about the

prerogatives tribal leaders ought to retain. A Yankton

Sioux of Rapid City, who served more than three decades

in the U.S. Indian Field Service, thinks tribal authority

should be restricted to the management of Indian land.*

Another Yankton, who devotes his life to the study of

tribal history, has a different opinion. The subordination

of tribal to White governance across Indian Country has

been unjust all along. Within reservation boundaries,

tribal leaders should govern without any constraint ex-

cept the obligation to honor the presence of Whites. As

national ctizens, they should be at liberty to live and own

property within reservation boundaries. But those who

cannot adjust to tribal regulations should be encouraged

to relocate (possibly with assistance from voluntary relo-

cation and employment assistance programs at federal

expense), and all who resist the authority of tribal offi-

cials openly should be removed.*

Controversy in dialogue has led to action by officials,

which has further aggravated and perplexed the victims

of the dispute. Many adversaries have reached agreement

in the belief that a definitive answer which factors either

Indians or Whites would be better than the continued es-

calation of the controversy. Already, at least one tribal

policeman has resigned because “nobody could tell him

where on the reservation he could arrest Suspects and

enforce Indian laws.”" White and Indian reservation

5 Personal interview with Harold Shunk by the writer in Pierre,

June, 1986.

* Personal interview with Leonard Bruguier by the writer at

Vermillion, August, 1986.

* Personal interview by the writer with former policeman who

prefers anonymity, July, 1985.

residents have grown increasingly suspicious of each other

through debates about theoretical questions they barely

understand, and practical issues that affect them directly.

Federal judges have floundered in the contents of briefs

and testimonies containing incomplete or faulty informa-

mation. Attorneys have grown antagonistic about the

erratic behavior of the courts, and increasingly intolerant

of the performance of researchers who have worked as

consultants on jurisdictional cases, with some justification.

All public historians have not called Indians “uncivilized

savages,” as Giago has charged, but some have done

jurisdictional research in violation of standards that gov-

ern their profession. Out of indolence, incompetence, or

commitment to social causes, all too many historical con-

sultants have skirted the grueling pursuit of truth in con-

texts and data to fashion selective information into

polemical instruments for use in a righteous effort to

make up for past inequities.

One historical consultant who supplied information for

jurisdictional litigation pertaining to a Sioux reservation

either stumbled into files that supported his sense of fair

play, or gathered evidence selectively by design, and per-

mitted its use to demonstrate congressional intent to sus-

tain tribal authority within original reservation bound-

aries, even though the weight of evidence should have

revealed the opposite was true. He either lacked com-

petence, or abandoned the pursuit of truth for the role

of referee on retribution as an advocate of one adversary

in the judicial process. By doing so, the consultant con-

founded the proceedings of justice all the way to the Su-

preme Court of the United States."

The decision in that case has muddled subsequent

efforts to answer the central question in every jurisdic-

tional investigation. It is this. Thruough the era be-

tween the passing of the Dawes Act in 1887 and its

termination by the Indian Reorganization Act in 1934,

8 Solem v. Bartlett.

did Congress mean to leave intact federal and tribal ju-

risdictional authority, or did it intend to disestablish the

affected portion of the reservation? Because congressmen

of that era left no cogent statements, historical consultants

have presented selective passages from legislative and ad-

ministrative records that pertain to intent. Attorneys

have tourtured phrases here, and marshalled implications

there, to support divergent postures toward how congress-

men should have responded eighty or ninety years ago.

Judges have listened to their arguments, mulled over con-

flicting precedents, reviewed legislative and administra-

tive histories, even taken Indian-White population ratios

into account, and from appearances relied excessively

upon their own social values when reaching decisions.

From their inconsistent rulings has evolved intolerable

confusion. How much better it would be to search for

congressional intent in evidence regarding the behavior of

administrative officials as they worked with congressional

Support and allocations on the management of Indian

affairs while the Dawes Act was in effect. Using publica-

tions and documents that deal with the application as

well as the formulation of federal policies, historians with

impartial disposition should be able to extrapolate intent

with limited margin of error.

In every case, they should review three things: (1) as

background, JURISDICTIONAL PoLicy FoR INDIANS from

colonial times to the late nineteenth century, before many

of the tribes moved onto reserves and accepted allotment

and surplus land sales according to the terms of the Allot-

ment Act of 1887; (2) the GENERAL PLAN OF FEDERAL

INDIAN Po.icy through the period 1887 to 1934, before

the Dawes Act ceased to function; and (3) the AFFECT

OF FEDERAL POLICY upon governance within reservation

boundaries, where Indian Field Service officials managed

agency affairs with congressional support.

Extraordinary developments in the histories of some

tribes may lead to unique judicial decisions. But political

affairs on nearly all reservations evolved according to the

Same general plan. A historian who has kept up with the

literature on federal policy toward Indians, and has

labored in the records of a major federation of tribes for

long, can present a scenario for the typical tribe that had

a typical relationship with Congress through the era when

the Dawes Act was in effect.

That historian should find it easy to trace JuRISDIC-

TIONAL POLICY FoR INDIANS down to the passing of the

Dawes Act.’ Sources at had reveal that general supposi-

tions about the sovereign authority of Indian leaders to

govern have been fairly consistent since the formulation

of policy for this issue soon after the founding of James-

town in 1607.

Jurisdictional Policy Prior to the Dawes Act

Throughout the colonial era, Anglo-American officials

looked upon groups of Indians as political entities with

title to land, which could be “quieted” only by purchase

or conquest in war. Few White colonials proposed to

ignore aboriginal claims or exterminate tribes as means

of territorial acquisition. Like officials in England, they

thought of areas occupied by Irdians as the rightful pos-

sessions of their tribes; accepted the borders of Indian

Country as boundaries within which Indian leaders exer-

cized jurisdiction over tribal and diplomatic affairs; and

negotiated often with tribal spokesmen by procedures in

use for international deliberations between sovereigns of

Europe. Similarly, Indian representatives dealt with

Whites as they had with neighboring tribes through for-

mal discussions in preference to war. The process of

treaty making evolved almost naturally.

White diplomats were more aggressive than tribal

spokesmen, for several reasons. There was a supposition

® Francis Paul Prucha’s the Great Father (Two Vols.; Lincoln:

University of Nebraska Press, 1984) supplies the best general

coverage of Indian policy from colonial times to 1980.

about universal rights to land in short supply explained

by the European philosopher Emmerich de Vattel. He

argued that sedentary, agricultural life was superior to

diversified, semi-nomadic existence, assumed that “the

earth belongs to all mankind” as a “common dwelling-

place and source of subsistence,” and contended that no

component of mankind should appropriate more land

than it could use if other parts were in need of space.”°

Secondly, there was the belief shared by colonials re-

garding New World “discovery.” A European sovereign

whose agent staked first claim to a tract had the right of

preemption over other European monarchs in competition

for Western Hemispheric empire. It could be exercised

as quickly and extensively as tribes relinquished claim by

treaty, or lost it in war.

In addition, there was an assumption that sovereignty

was divisible, and in the process of its reduction English

monarchs had from might or other right acquired the

greatest measure. Especially through divine ordination,

they assumed dominion of supreme magnitude for them-

selves, and recognized sovereignty of second order in

tribal governments.’ To these inducements was added

aggressive motivation from colonial assumptions about

a Christian’s mission and the capitalist’s right of exploita-

tion. Non-Indian colonials were hell-bent on expansion.

Tribal groups and federations were bound to lose for

their failure to act in concert.

In spite of this, colonials dealt often for land as though

tribal spokesmen were their diplomatic equals. Until the

1750s, ranking officcrs in the several colonies were re-

sponsible for Indian diplomacy, or war, over land. Be-

ginning in the 1750s, Superintendents of Indian Affairs

did the work of diplomacy while British generals or

1° The Laws of Nations or the Principles of Natural Law (Wash-

ington, DC: Carnegie Institution, 1916), 37-38, 84-86.

1 The official view of sovereignty is summarized in a note at-

tached to the Land Law of 1796 printed in the 1861 edition of

Statutes at Large. 4 Stat., 465.

10a

colonial governors were in charge of war. By the terms

of the Proclamation Act of 1763, Parliament made clear

the separation of land ceded for colonial use from Indian

Country. Through the 1760s, surveyors fixed an approxi-

mate line near the crest of the Appalachian Mountains.

Officially, there were two jurisdictions, and a non-Indian

could not enter Indian Country legally without permission

from British authorities.

During the American Revolution, many White people

crossed demarcation lines illegally with the breakdown

of British vigilance. But the Second Continental Con-

gress vested responsibility for Indian affairs in central not

State or local government. Adopting colonial practices

without substantial change, national authorities dealt with

tribes as sovereign entities, resumed negotiations, and

supposed that non-Indians might not enter Indian Coun-

try without federal permission.

Congressmen who legislated under the Articles of Con-

federation from 1781 to 1789 perpetuated the same as-

sumptions. They attended to the separation of Indian

Country from land owned or occupied legally by Whites,

prohibited the entry of non-Indians for trade or settle-

ment without permission, and tried to arrange the legal

entry of pioneers.

The restraint of non-Indians was not easy, because

arable land available for expansion was in short supply.”

Inevitably, the scarcity forced Confederation congress-

men into action. Quickly, they dispatched negotiators to

bargain for acreages already occupied by squatters on

the northwestern frontier, and to confine the tribes to

smaller areas. At the same time, they stipulated in the

Northwest Ordinance of 1787 that land in Indian Coun-

try belonged to tribes until it was relinquished by the

consent of their spokesmen.”

12 Howard Lamar, The Reader’s Encyclopedia of the American

West (New York: thomas Y. Crowell Company, 1977). A survey

of early federal land policy appears on pp. 632-642.

18 Greater detail about early national Indian policy is available

in Prucha’s The Great Father.

lla

The Ordinance of 1787 also dealt with the issue of

jurisdiction on ceded land, where it specified that “crim-

inal and civil . . . laws shall be in force,” and for their

enforcement the Governor of a Territory shall “lay out

the parts of the district in which the Indian titles shall

have been extinguished, into counties and townships.” It

went on to say that when a population reached 60,000

free inhabitants, a state “shall be admitted .. . on an

equal footing with the original states, in all respects what-

soever” with liberty to “form a permanent constitution and

State government.” * One supposes that “in all respects”

included the application of “criminal and civil laws” on

land ceded by Indians. A blue print for the transfer of

jurisdiction over White and relocated citizen Indians from

tribal through federal to state authorities was in place.

When the authors of the Constitution of the United

States added the power to deal “with the Indian tribes”

to the other prerogatives of Congress, by implication they

ordered the perpetuation of previous practices, and placed

ultimate authority in the legislative branch. To the end

of treaty making in 1871, administrators concluded diplo-

matic settlements by and with the advice and consent of

the United States Senate, and implemented treaty terms

with allocations approved by both houses of Congress.

After 1871, business pertaining to Indian territorial own-

ership or transfer remained a legislative prerogative exer-

cised through “congressional agreements.” All along,

congressmen were in charge of fundamental issues per-

taining to land and jurisdiction.

With acreage in short supply across the upstart

agrarian nation, no issue was more critical to early na-

tional leaders than was territorial expansion through the

application of the Northwest Ordinance, followed by the

acquisition of land from Indians. To keep White people

44] Stat., 50-53.

12a

out of areas recognized as Indian Country until arrange-

ments for transfer were complete, congressmen made

tribal land inviolate to any except those who entered with

permission from federal authorities when they drafted

Trade and Intercourse Acts, beginning with that of

1790."

Ceded land in public domain was processed for private

entry first under the 1785 Land Ordinance, then through

the 1796 Land Act and subsequent legislation. The at-

tachment of a footnote to the 1796 Act in the 1861 edi-

tion of Statutes at Large not only summarized legal as-

sumptions regarding sovereignty and jurisdiction, but also

indicated their abiding application.

Discovery constitutes the original title to lands

on the American continent, as between the different

Europeon nations . . . [and] the right of soil, which

had been previously in Great Britain, passed defi-

nitely to the United States.

The United States, or the several states, have a

clear title to all the lands . . . subject only to the

Indian right of occupancy .... Whenever a tract

of land has been once legally appropriated to any

purpose .. . [it] becomes severed from the mass of

public lands: and no subsequent law or proclama-

tion, or sale, would be construed to embrace it... .

A state has a perfect right to legislate as she may

please. .. . But Congress are invested by the con-

stitution with the power of disposing of public land.

. .. Whenever the property is passed . . . [by federal

laws, it] like all other in the state, is subject to state

legislation; so far as that legislation is consistent

with the admission that the title passed, and was

vested.*®

15 4 Stat., 469-474.

164 Stat., 465.

13a

Down to 1861, Congressmen evidently thought it tra-

ditional and axiomatic that acreages acquired from tribes,

and transferred to public domain for private entry under

federal land legislation, fell under state jurisdiction. The

same disposition was implicit in congressional action over

the next several decades. National attention focused upon

the industrial revolution in the East, which thrived on

resources and services from hinterland economies in terri-

tories and states of the trans-Mississippi West. Immi-

grants entered freely under congressional legislation that

screened new arrivals only for national origins and ob-

jectionable tendencies. Population grew by some

33,000,000 from immigration in only seventy-five years."

On frontier provinces acquired through Indian wars,

treaties and congressional agreements, immigrants and

citizens from the East who crossed the Mississippi River

found ample space to settle on plots governed by federal

land legislation, which was amended often to suit western

conditions. After a lull in state making caused by post-

Civil War partisan conflict, nine new western states en-

tered the Union in less than a quarter century, beginning

with four under an omnibus bill in 1889. The ceded

land they contained passed from tribal through federal

to state jurisdiction according to congressional policy.

From appearances, no federal official said otherwise

about the transfer of jurisdiction over ceded aboriginal

land.”*

General Application of the Dawes Act

All the while, Indian tribes were segregated from

Whites on reservations managed by employees of the

17 Henry Steele Commager’s piece about the impacts of immi-

gration on the character of Americans in Modern Maturity (Feb-

ruary-March 1986) contains this estimate for the period 1865 to

1940.

18 For example, the Yankton Sioux surrendered aboriginal claim

and jurisdictional authority on 11,155,890 acres in present-day

South Dakota east of the Missouri river when they accepted recog-

nized claim to 430,000 acres in the 1858 Washington Treaty.

l4a

U. S. Indian Field Service, wherein additional acreages

were relinquished and opened for non-Indian settlement.

Section 5 of the Dawes Act of 1887 created procedures

whereby communal tracts they contained could be dis-

solved and allotted to individuals by executive action.

With allotting agents at the scene—often in the presence

of ill-qualified interpreters, irate tribal traditionalists,

meddlesome missonaries, and troublesome White hangers-

on-tracts deemed adequate for subsistence farming or

ranching were parceled out among tribal members in sev-

eralty. Section 6 of the Act prescribed that on the com-

pletion of the “patenting of lands to said allottees” they

would “have the benefit” and “be subject to the laws, both

civil and criminal, of the State or Territory in which they

may reside.” After tribal needs for allotments were satis-

fied, surplus areas could be “sold or released to the

United States” by tribes “for the sole purpose of securing

homes to actual settlers,” whose example was to encour-

age agrarian interest among Indians. (This was the heart

of the General Allotment Act.).’’ The United States

either purchased surplus lands, or managed their sale

piecemeal as rapidly as demand allowed. Proceeds went

into tribal accounts to educate and sustain allottees and

their families, who were expected to attain self-sufficiency

from allotted or heirship land. On each reservation so

administered, some Indians filibustered or protested rig-

orously at every stage in the application of the Dawes

Act, but on most reserves a majority acceded to the

plan, albeit under duress.

Historians of Indian-White relations understand that

the applications of Sections 5 and 6 of the Dawes Act on

most reservations failed miserably at the time. Reasons

included the termination of treaty annuities, and deple-

tion of tribal accounts, before self-sufficiency was at-

tained; a disinclination by many Indians to take up farm-

ing and ranching full time; the infertility of acreages on

allotments; land hunger among Whites; adverse climatic

19 24 Stat., 388.

15a

conditions; an inadequate land base; and the general dis-

couragement of Indians about their increasing dependence

on paternalistic regimes in charge of their reservations.

Students of the applications of the Dawes Act on

western reservations know, too, how little Indian allot-

ments have contributed to reservation economies since the

Dawes Act was applied. Only three families in an en-

rolled population of more than 2,000 Yankton Sioux,

whose administrative history is most familiar to the

writer, attained self-sufficiency from their own land by the

1920s. Few more than that have relied mainly on farm-

ing and ranching for livelihood at any time over the past

half century. The loss of land has been a principal cause.

Collective Yankton acreage was reduced from 11,155,890

to approximately 40,000 acres in eighty years. By 1940,

Yanktons retained recognized title to an area containing

only 3.6 percent of the tract to which their predecessors

ceded aboriginal claim.*” On acerage, the other Sioux

tribes fared little better.

Sensitive observers have looked back on this with deep

regret and desire to somehow rectify a tragic error in the

history of Indian-White relations. Surely, additional

recompense beyond recent monetary payments through

claims awards would be just. It should not be tailored

by judges, however, or counsel, or expert witnesses, or

historical consultants seeking retribution through juris-

dictional adjudication. Recompense should be made

through some other means, and jurisdictional disputes

resolved by a search for congressional intent in develop-

ments related to the applications of state, federal and

tribal governance within the same original reservation

areas.

To the question of whether congressmen meant to leave

federal and tribal jurisdiction intact throughout all lands

contained by the original borders of their reservations, or

20Charles J. Kappler, Indian Treaties, 1778-1883 (New York:

Interland Publishing, Inc., 1972), 776-780.

16a

intended to transfer jurisdiction from tribal to state and

local governments over land ceded as surplus for entry

by Whites within those boundaries, there is a reply by

implication in most statements by congressmen and ad-

ministrative officials regarding the general purposes of the

Dawes Act. In various ways, Henry Dawes himself ex-

pressed the belief that “the time is not far distant when

the holding in severalty will prevail all over this country

among Indians as well as white men.” * By this he surely

meant to encourage de-tribalization. In 1905, the Acting

Attorney General of the United States wrote: “Un-

doubtedly the ultimate purpose of the allotments pro-

vided by the Act of 1887 is to wipe out the reservations.”

His belief in the elimination of tribal governance was

clear, and he added that “it is for Congress, and not for

the courts, to say when that purpose shall take effect.” ~

His view of “ultimate purpose” expresses the expectation

of de-tribalization, and so do many other official opinions

pertaining to the Dawes Act in that era. (See Appendix

B) From a broad and general survey of JURISDICTIONAL

History, an historian is likely to conclude that tribal jur-

isdiction over aboriginal land was ceded with title, and

that tribal authority over land on reservations was con-

sidered a temporary expedient even on the acreages as-

signed to allottees.

Recent literature on the GENERAL GOAL OF FEDERAL

INDIAN Po.icy for that era bears a similar message.

Policy reflected suppositions handed down from colonial

times: Vattel’s hypothesis; preemption rights to sov-

ereignty and supreme dominion over tribes by the United

States; and Christianity coupled with free enterprise eco-

nomics as guiding features in federal goals. Field Service

administrators and missionaries backed by congressional

21 49 Cong., 1 Sess., Congressional Record, p. 1559.

22“Authority of the United States over Indians—opinion of

Acting Attorney-General,” Department of Justice, Washington,

D.C., May 35, 1905. The writer found this in Fort Peck Letter

Books at the Federal Archive and Records Center in Kansas City.

17a

support labored to transform Indian people into self-

supporting citizens of the United States, to separate them

from tribal ties, and to attach them to White institutions,

including those of governance. Congressmen authorized

as they funded these processes year after year with pub-

lished information at hand regarding administrative ef-

forts, and considerable instruction from lobbyists with in-

fluence they could not ignore. That congressmen knew

the reduction of tribal authority was part of the general

plan they authorized and funded is surely implied in ap-

propriate chapters of Francis Paul Prucha’s The Great

Father, for example, and the text of William T. Hagan’s

The Indian Rights Association.* The latter indicates

clearly that the imposition of mainstream beliefs and prac-

tices in place of Indian habits and philosophies in most

of their manifestations was the goal of fawning eastern

do-gooders with enormous influence among congressmen,

and implies that the destruction of tribal authority was

part of the acculturationists’ plan all along.

Records pertaining to the AFFECTS OF FEDERAL

POLICY on tribal governance within the reservations of

Sioux Country, at least, suggest that the congressmen who

listened to reformers could not have been blind to what

was happening at the grass roots. For the contents of

federal documentary holdings, mission files and other -

archival collections as well as secondary sources reveal

that several forces were openly at work to undermine

tribal governments through the period 1887 to 1934.

(a) One important influence was the abiding erosion of

legitimate tribal authority that had taken place through

official action since the Age of Jackson. (b) Another

force was the intensified program of acculturation insti-

tuted as the Peace Policy under Ulysses S. Grant. In

support of these older commitments, (c) a third was a

federal plan exercised in most agencies between 1880 and

1910 to supplant traditional tribal governments with

Business Committees under the control of Agents and

*8 Tuscon: The University of Arizona Press, 1985.

18a

Superintendents, who either manipulated their agendas or

rendered them defunct by the outset of the 1920s.

(a) Relentless effort to undermine tribal authority

from the Jackson era was a key to success in every de-

tribalization effort while the Dawes Act was in effect. An

early statement of intent to make this part of federal

policy for trans-Mississippi tribes appeared in a plan for

acculturation submitted by Saint Louis Superintendent

William Clark to Secretary of War James Barbour, on

March 1, 1826, in which he urged federal action to ac-

culturate tribal members—among other things “to teach

them to... . establish laws for their government,” and to

gather in settlements “over which a competent agent

should be placed with full power of conducting the execu-

tive part of a Government.” * Soon a plan like this was

implemented widely by U. S. Agents, U. S. Farmers and

other regular employees of the Indian Field Service, with

ever increasing effect.

(b) At considerable expense to tax payers and tribal

accounts, the plan exercised by Jacksonians was enlarged

and enforced on reservations under Ulysses S. Grant's

Peace Policy. Field Service employees and missionaries

labored with congressional encouragement and support

to educate young Indians about non-Indian culture, to put

them to work mainly as farmers and ranchers, to sup-

plant individual attachments to tribes with ties to civil

governments through citizenships and in the process to

subdue if not dismantle traditional Indian governments.

The application of these strategies culminated in a frenzy

of citizenship awards and fee simple land issues followed

by the depletion of tribal accounts with per capita pay-

ments. By the early 1920s, many grass roots observers

thought de-tribalization for most Indians was nearly

accomplished.

mainstream American culture around the world might

24 Record Group 75, M234, roll 747, National Archives.

19a

have wavered in its imposition upon Indian tribes through

the period in question is not only illogical, but is also

inconsistent with records pertaining to the reactions of

agency personnel toward tribal governance while the

Dawes Act was in effect. In documents preserved for

Sioux Country at least, there exists in correspondence of

War and Interior Department officials up and down the

chain of command unmistakeable agreement in the be-

lief that the manipulation of tribal government was essen-

tial to the control of the tribes, and the dissolution of

tribal authority was a key to the detachment of individ-

ual Indians from tribal ties for entry into mainstream

society as citizens. Methodically over the years, they

dismantled traditional governments by fairly uniform

procedures. Characteristically, federal officials replaced

government by traditional chiefs and headmen as recog-

nized forces on reservations with “made-chiefs” and ad-

visory committees comprising other compliant Indians,

and these in turn with elected assemblies, or general

councils, which delegated authority to Business Commit-

tees chaired by agency Superintendents. The Committees

voted on such things as land management, claims devel-

opment, tribal fund allocations, and tribal memberships.

They were summoned infrequently at the pleasure of

Superintendents, sometimes remained inactive for years,

and in most though not all instances were defunct by the

early 1920s. Traditionalists protested in vain against the

erosion of independent tribal authority through petitions

and delegations to Washington, DC. For Sioux Country

it is fanciful to suggest that any viable, federally recog-

nized tribal government of the people’s unencumbered

choice existed on a reservation by 1910.*° Where Indians

participated in decisions about the general affairs and re-

sources of their tribes at all, it was through Business

25 An example of the long term process of dismantlement is

contained in Herbert T. Hoover, “The Yankton Sioux Experience

. « » 1900-1930,” The American West (Toledo: the University of

Toledo, 1980), 53-72.

20a

Committees headed and controlled by agency Super-

intendents.

In spite of this, during recent proceedings lawyers ar-

gued, and evidently justices were swayed to believe, that

effective tribal government existed with congressional

sanction on a Sioux reservation through the Progressive

Era, following the full implementation of the Peace Pol-

icy.” Their assumption must have evolved from scanty

research, because Indian Field Service records, corre-

spondence of Interior Department officials, Inspectors’ Re-

ports and congressional documents all indicate otherwise.

Some federal officials may have been crooked and despica-

ble, but few of them were fools enough to leave tribal

governments intact. They picked them apart and trans-

ferred their functions mainly to regular agency employees.

From the Agency, authority was delegated to employees

at Sub-agencies or Farm Districts who dwelled in the

communities. At the grass roots, Sub-agents and Farmers

(one and the same in many instances) marshalled the

forces around them effectively to remain in control.”

Included in local teams were tribal members, mainly

those of mixed-heritage with tractable dispositions. They

served as Assistant, Additional or District Farmers; tribal

Policemen; judges in Courts of Indian Offenses; and vari-

ous wage labor employees. All Indian appointees were

treated as liasons or instruments of social control. Their

prerogatives were restricted and controlled by Farmers,

Superintendents and other agency personnel. Tribal

judges, for example, worked under federal policy like

Justices of the Peace at the low end of an appellate judi-

cial system wherein U.S. Farmers or Superintendents re-

viewed their cases with authority to reverse their decisions.

26 Solem v. Bartlett.

27The central roles of U.S. Farmers in reservation district

management is evident in the article “Arikara, Sioux, and Gov-

ernment Farmers: Three American Indian Agricultural Legacies,”

South Dakota History, XIII (spring/Summer 1983), 22-48.

2la

The contention that Indian officers recognized or employed

by agencies gave expression to tribal sovereignty with con-

gressional recognition cannot be defended through the

examination of records pertaining to the local applications

of federal Indian policy. Under federal sanction, Indian

leaders exercised little authority in the lives of tribal mem-

bers, and almost none over the lives of White people who

settled on surplus lands pursuant to Sections 5 and 6 of

the Dawes Act. (See Appendix C)

Rigorous effort by agency officials to dismantle and

control if not destroy tribal governments should not have

been allowed, according to recent popular opinion, but

it went on with tacit approval by congressmen through

allocations of funds without significant protest. What

happened almost a century ago can only be superseded,

either by congressional action or by an amendment to the

Constitution of the United States. As the Acting Atorney-

General put it in 1905: “it is for Congress, and not

for the courts, to” legislate federal policy for affairs on

Indian reservations.

If the urgency of need for some solution to current

confusion regarding federal and tribal jurisdiction within

the original boundaries of reservations is not clear enough

in examples of conflict presented at the beginning of this

paper, it is dramatically apparent in the review of briefs

and decisions on jurisdictional boundary cases that have

come before the federal courts since the early 1960s.”*

A colleague from the discipline of law on the faculty of

the University of South Dakota underscores the need, and

calls for the help of historians, in her review of five sig-

nificant cases, which follows.

*8 The initial overview of the General Allotment Act in

B is helpful. Additional work must be accomplished Ane

sources for each application of Section 5, however, in order to

provide an adequate synthesis of information pertaining to its

specific use.

22a

APPENDIX A: The Issue of Constitutional Guarantees

United States Senate Bill 2564, introduced by Barry

Goldwater during the Second Session of the Ninety-ninth

Congress on June 16, 1986, precipitated discussion re-

garding the consequences of granting tribal governments

jurisdiction over Whites, or over Indians without tribal

membership. The bill provided the administration of jus-

tice by the Salt River Pima-Maricopa Indian Community

Court over criminal misdemeanor offenses. It went to the

Committee on Indian Affairs with support from officials

in Arizona state government and nearby cities, and with

assurance that this Indian court was up to the task.’

Deputy Assistant U.S. Attorney General Victoria

Toensing wrote the opinion that while under current law

established in Oliphant v. Suquamish Tribe (1978) an

Indian court had no jurisdiction over non-Indians, the

Department of Justice supported the change in light of

endorsements from non-Indian officials in Arizona. She

raised questions, nevertheless, about the capacity of the

Court to handle the caseload; the community to provide

jail space; and the tribal government to assert jurisdiction

without infringing on the constitutional rights of non-

members: right to appointed counsel, trial by jury, proper

administration of the test for intoxicated driving, applica-

tion of proper rules of evidence, and right of appeal.’

Concern about the constitutional rights of persons tried

by the tribal court gained more succinct expression from

South Dakota Attorney General Mark V. Meierhenry.

In a letter to Senator James Abdnor on September 4, he

expressed firm opposition to S. 2564 because “Congress

cannot constitutionally deprive an American citizen of his

Bill of Rights guarantees” by placing him under a politi-

199 Cong., 2 Sess., S. 2564; Letters of support attached to the

bill when it went to Committee.

2 Statement of Victoria Toensing ... before the Select Com-

mittee on Indian Affairs, United States Senate, July 23, 1986.

23a

cal force not bound by constitutional constraints. At risk

were the republican form of government guaranteed to

each state group, right to appoint counsel, right to a jury

of persons “from which members of a defendant’s race

are not automatically excluded,” and right to trial by a

Political system in which one may participate. Any bill

extending jurisdiction to a tribe over non-Indians, Meier-

heny contended, would have to contai

po ngs « B n safeguards to

’ South Dakota Attorney General Mark V. Meierhenry to James

Abdnor, September 4, 1986.

24a

APPENDIX B: The Purposes of the Dawes

(General Allotment) Act of 1887

While congressmen debated the bill that became the

Indian Reorganization Act of 1934 (which reversed the

philosophy behind the Dawes Act), the Office of Indian

Affairs employed D. S. Otis to write a history of the act

of 1887. He explained how it transformed earlier piece-

meal efforts to place Indians on individual farms and

ranches into a general plan for severalty in most of the

tribes, discussed arguments that led to its passing, identi-

fied groups that had been for and against it, and described

its early application." When Francis Paul Prucha pre-

pared Otis’ report for reprint in book form, he wrote in

the introduction that “to many reformers” who shared

responsibility for the passing of the bill authored by Henry

Dawes “this was the most important means of destroying

tribalism,” and that Otis had demonstrated “how the

allotment policy fitted well into the dominant views of

that age of individualism.” *

Throughout his text, Otis quoted and paraphrased opin-

ions to demonstrate that most reformers and legislators

supported the act to prevent the further loss of Indian

land, but “the supreme aim of the friends of the Indian

was to substitute white civilization for . . . tribal cul-

ture. . . . Allotment was counted on to break up tribal

life.” * Other philosophies were influential. Mention that

“Indians were of course making no use of natural re-

sources which should be developed in the interests of

civilization” expressed the legacy of Vattel.* But belief

that “allotment was the legal method by means of which

1The Dawes Act and the Allotment of Indian Lands (Francis

Paul Prucha, editor; Norman: University of Oklahoma Press,

1973).

2 [bid., x-xi.

8 [bid., 8-9.

* Ibid., 17.

Pe ere oe

ee ee ee ee ee ee

8 ee eT ee ee ee oe

25a

. . . breaking down the reservations . . . was to be ac-

complished” expressed the social and economic purposes

of most non-Indians.’ In a summary remark, Otis ex-

pressed the opinion that “allotment was first of all a

method of destroying the reservation and .. . secondly a

method of bringing security and civilization to the In-

dians.”* And he demonstrated in many ways that this

was the popular solution to the “Indian problem” among

most philanthropic reformers, legislators and members of

the voting public.

The major fault in Otis’ analysis was excessive reliance

on published agency reports and congressional documents,

and failure to use original sources generated the grass

roots. Correspondence and inspection reports express far

greater opposition to allotment and surplus land sales by

Indians than he perceived. But primary sources cor-

roborate the perception that both the popular goal of

Whites and the accepted policy of congressmen and fed-

eral administrators was to de-tribalize Indians, and de-

stroy their reservations.

This conclusion came from a substantial number of

congressional publications, many of which contain suc-

cinct statements by members of Congress. Congressman

Thomas Skinner of North Carolina made a typical argu-

ment in 1886 when he said that “tribal relations must be

broken up”; Indians should “shake off the shackles of

tribal authority.” With more land on reservations than

they could “profitably use,” they should sell surplus so

Whites “may get possession of them and come in contact

with Indians.” Through the possession of individual allot-

ments and exposure to subsistence farmers would come

“the most direct route to citizenship for the Indian.” ?

5 [bid., 21.

® [bid., 32.

749 Cong., 2 Sess., Congressional Record (December 15, 1886),

190.

26a

“No better element can be found than the men who go

out and settle upon the public lands, and make for them-

selves honest homes,” said Senator Henry Teller from

Colorado. “Give to our people . . . the right to go upon

the Indian lands and make, side by side of the Indian

farm, a farm tilled by the aggressive and enterprising

Anglo-Saxon, and in a little while contact alone will

compel these people to accept the civilization that sur-

rounds them on every side.” *

There was dissent all along. Back in 1880, a minority

in the House Committee on Indian Affairs expressed the

opinion that “it does not make a farmer out of an Indian

to give him a quarter section of land,’ and went on to

charge that “the main purpose of this bill is not to help

the Indian . . . so much as it is to provide a method for

getting at the valuable Indian lands and opening them up

to white settlement.” * In 1883, stronger opposition came

from spokesmen for the Creeks in a memorial containing

evidence of numerous instances where allotment and citi-

zenship had led to extreme hardship.”

Generally, views expresesd in congressional sources

support Otis’s conclusions, however. Most congressmen

and reformers favored the Dawes Act to destroy tribalism,

to instill desire in Indians for self-sufficiency through per-

sonal initiative, to expose allottees to the example of

agrarian subsistence by opening surplus lands within reser-

vation boundaries to bonafide settlers, and to remove ob-

stacles to citizenship in the United States. One would

have to torture phrases considerably to show from major-

ity opinions any inclination to preserve reservations or

tribal authority. One would search in vain to discover a

hint that congressmen who drafted and voted the Dawes

849 Cong., 1 Sess., Congressional Record (February 25, 1886),

1763.

946 Cong., 2 Sess., House Report No. 1576.

10 47 Cong., 2 Sess., House Miscellaneous Document No. 18.

27a

bill into legislation felt anything but antagonism toward

tribal governance. Surely they would have opposed the

notion that Whites who settled within reservation borders

to serve as models for allottees might be subjected to

tribal governance. This is not to Say tribal authority

would necessarily have offended all non-Indians; by the

late 1880s, many lived without inconvenience on reserva-

tions as husbands of tribal women. It is only to recog-

nize that the vast majority of congressmen in that era

believed that tribal governments and reservations were

temporary expedients soon to vanish as Indians received

land in severalty and citizenship. The Suggestion that

White settlers might be placed under tribal jurisdiction

one suspects, would to them have seemed preposterous.

28a

APPENDIX C: The Erosion of Government in Tribes of

the United States from the Age of Jackson to the 1920s

Infringement on the “ancient customs and laws of the

much older tribal governments,” to which Tim Tiago re-

ferred in his editorial, began when colonial merchants and

administrators of New France selected middlemen for the

fur trade. Historian Harold A. Innis wrote that “the best

of hunters were rewarded with favors and promotions,”

and “governors made titular officers of those . . . ac-

counted the best huntsmen and warriors.” To each they

gave “a coat, a pair of breeches and a hat, appointing

him captain of a river.”’ To each, Innis might have

added, they also extended advantage in the exercise of

influence among tribal members around them for their

central roles as liasons between suppliers of trade goods

and Indian consumers. For diplomatic purposes, early

Canadian fur trade operatives engaged in a practice known

to officials of the United States in the nineteenth century

as “chief-making.”

Meriwether Lewis and William Clark, and Pierre

Choteau Jr.’s leading Upper Missouri River trade opera-

tive, Honore Picotte, were among leading explores and

merchants who engaged in this practice during early

national history. In 1856, General William Harney

founded Fort Randall near the center of Sioux Country,

wrote about chief-making and its significance, and de-

scribed his effort to alier the process for the enhancement

of federal authority:

Certain chiefs were recognized by the nation,

others by the military, others again by the agents,

and the traders, for their own purposes, have most

unwarrantably given medals and appointed chiefs.

.. . These conflicting interests necessarily weakened

the authority of all these chiefs... .

1 The Fur Trade in Canada. (New Haven: Yale University Press,

1930), 141.

OO he ctl ae a

ee Ed

Cl ee ee

‘

Cees Re ee ee eS

seo

29a

I have caused the Sioux nation to select and ap-

point a certain number of head chiefs and chiefs to

govern them, and to see that they carry out the con-

ditions to which they have assented in counsel; and

I have informed them that these would be the only

chiefs recognized by the President, myself, or their

Indian agent.”

Harney designated leaders mainly to carry on diplo-

matic affairs, but his recognition gave them status within

their tribes. Regardless of previous standing, they now

were in position to influence Indian-White negotiations,

the distribution of annuities, the choice of recipients for

gratuities, the distribution of irregular agency employment,

etc. Men who acquired positions in tribes by traditional

means as well as those who did not were eligible for such

“appointments.” Only those who demonstrated steady

support for federal policies retained recognition for long.

Chief-making became common practice among Field

Service Agents as they founded reservations and searched

for leaders to take over new bands formed by agency

staff, and cooperative chiefs to replace traditional leaders

as they passed away. On the Yankton Sioux Reservation,

for example, Agent Alexander Redfield recognized Francis

Deloria as “chief” of a new mixed-blood band. Redfield’s

successors, acting with approval from their superiors in

Washington, DC, “made” Jumping Thunder chief in place

of Smutty Bear, Felix Brunot then Blue Cloud chief in

place of Petty Boy, John Ree chief in place of Made Bull,

etc.

Within approximately a quarter century, Greenwood

agents reported the majority of chiefs to be compliant,

and gained their approval for the replacement of tradi-

* 34 Cong., 1 Sess., Ex. Doc. 130, Harney to Secretary of War,

March 5, 1856.

’ Herbert T. Hoover, “Yankton Sioux Experience in the Great

Indian Depression, 1900-1930,” The American West (Toledo: Uni-

versity of Toledo Press, 1980), 57-68.

30a

tional by republican tribal government under federal

supervision. J. F. Kinney declared that chiefs were “not

only useless,” but also were impediments to “progress” on

the reservation. In 1891, all who remained in office were

induced to join a representative “Speaking Council.”

Young men who aspired to leadership positions through

traditional means formed the “Sons of the Chiefs” and

“Society of Orphans” in protest, but thier letters were

ignored. In 1901, when made-chiefs Jumping Thunder

and Medicine Cow passed away, Superintendent James

D. Staley said he would no longer “recognize chiefs” on

his reserve. After that, Superintendents permitted the

elective council to fall into disuse. Later on, tribal spokes-

man Clement Smith recalled the subsequent existence not

of effective tribal government, but only of “factional

groups... floundering.” *

Similar developments occurred around other agencies.

At Sisseton, the constitutional “Renville Republic” col-

lapsed in the mid-1890s, following the death of its only

President, Gabriel Renville, leaving the tribe without ef-

fective central government until the New Deal Era. In

most other Sioux tribes, the destruction of tribal author-

ity was not as complete, but the process of erosion was

similar.

Among Tetons, it began as early as 1878, when a

commission recommended the distribution of rations to

Upper Brule and Oglala family heads instead of to band

leaders, and wrote that “the domination of the chiefs

should be broken up” and repiaced with authority by

tribal officers elected for short terms. The chiefs exer-

cised power with support from traditionalists, who were

opposed to progress according to federal standards, and

their removal had become “an agricultural necessity.” °

In 1880, Crow Creek Agent William Dougherty said

* Ibid., 58-64.

5 Report by Col. D. S. S. Stanley and Rev. A. L. Riggs, August

28, 1878, M234, roll 266, NA.

ee ee ee eo

ee ee ee ee ee eee

3la

tribal government should be destroyed in order to under-

mine “traditions and prejudices . . . of which the head

chief is the head repository.” * In 1882, he recommended

“breaking up the organizations of bands and tribes, and

establishing the family as the basis of social organiza-

tion,” for it would then be possible to “impart to them

some semblance of the manners, customs and laws of our

civilization.” As long as Indians lived on communal land

“under the patriarchal system, they must continue to be

trubulent, idle and expensive to maintain.” *

In 1889, as General George Crook explained the terms

of the Great Sioux Agreement, he warned Teton leaders

that the survival of tribal government should no longer

be assumed; “it does not necessarily follow that because

you are chiefs today, that you are going to remain so in

the future.” Those who could not accept “this new de-

parture” (confinement to reservation life) would “have

to give way to those who can.” Like drift wood, one

who “keeps up with the current will be all right, and that

which cannot is left on the banks.” *

Many were “left on the banks” thereafter. At Rose-

bud, Agent George Wright threatened to jail recalcitrants,

and said that those who were “at one time recognized as

chiefs, representing the older men, who have outlived

their usefulness,” were going to be thrust aside.’ This

happened at Standing Rock, where the Agent authorized

6 Captain William Doughterty to Indian Commissioner, September

22, 1880, Crow Creek Files, Federal Archive and Records Center-

Kansas City.

7 Captain William Doughterty, “The Sioux,” December 10, 1882,

Letters Received by the Office of Indian Affairs, NA.

8 Proceedings of Council at Standing Rock Reservation on the

Agreement of 1889, July 26, 1889, Irregular Shaped Papers #440,

NA.

® Agent J. George Wright to Indian Commissioner, June 16,

1890, Letters Sent, Rosebud Agency, FA&RC-KC.

32a

Phillip Bullhead to take over the band of Little Dog, and

directed mixed-blood District Farmer Joseph Archam-

bault to bring into it not only Little Dog’s people, but

also those in the bands of See-the-Bear and Moccasin,

making thirty-nine families in all.’°

Almost without exception, agents supplanted tradi-

tional leaders with tribal governments amendable to fed-

eral plans. For their efforts, they received support and

publicity from ecclesiastical spokesmen, who shared their

philosophy. In 1909, one of them wrote that “tribal

organization in itself always opposed civilization . . . for

civilization means its downfall. . . . Where any form of

this organization exists . . . , there you have a chilling

shadow in the way of . . . progress.” ™

Military leaders, agency personnel and missionaries all

thrived on congressional support as they endeavored to

manipulate, control, and in some instances destroy tribal

government. The results of their efforts in Sioux Coun-

try varied from reservation to reservation. On those sit-

uated east of the Missouri River, tribal authority was

either reduced to “factional groups . . . floundering,” or

for all practical purposes destroyed. On reservations west

of the Missouri, where larger Indian populations were

shielded from White influences by distance and the posses-

sion of terrain with marginal value for agriculture, tribal

leaders were more successful in their defense of their pre-

rogatives. Even there, the procedures of attack on tribal

government were the same. Only the timetable was

different.

Most populous and remote of all Sioux reservations

was that of Oglalas around Pine Ridge. Truculent Valen-

U.S. Agent, Standing Rock, to Joseph Archambault, July 31,

1901, Standing Rock Files, FA&RC-KC.

™ Augustus Field Beard, A Crusade of Brotherhood: A History

of the American Missionary Association (Boston: The Pilgrim

Press, 1909), 83.

33a

tine McGillycuddy initiated a methodical attack on the

prerogatives of Red Cloud and other traditional leaders

in the mid-1880s with the establishment of an “Agency

Council” of 100 “working and progressive” delegates

from the Farm Districts. They spoke for the tribe on

matters of interest to the Agency and for some years

doubled as the Court of Indian Offenses.'* Soon, offi-

cials in Washington, DC, joined the attack on traditional

leaders, withdrawing recognition from them and approv-

ing compliant made-chiefs (in one instance, replacing

Red Cloud by American Horse).

“Old and non-progressive Indians who call[ed] them-

selves ‘head Men and Chiefs’” organized an “Oglala

Council” of 300 or more to defend their prerogatives, to

oppose federal policies, and to assert treaty rights. At

first, they held monthly meetings. Later, they gathered

only two or three times a year. Never did they receive

recognition as members of a legitimate political body by

Indian Office officials..* In 1907, the Acting Commis-

sioner of Indian Affairs agreed to raise no objection when

they assembled to discuss general “questions of interest.”

But the Indian Office recognized only the body organized

by the Agency, which was by then the “Business Commit-

tee appointed by the general counsel” of voting tribal

adults, to reach official decisions about all matters except

those which justified the assembling of the general

council."®

12 Agent V. T. McGillycuddy to Indian Commissioner Hiram

Price, May 4, 1884, Letters Received, NA; Pine Ridge Annual

Report, [ |, Letters Sent, FA&RC-KC.

18 Secretary of the Interior to Acting Commissioner of Indian

Affairs R. V. Belt, July 1, 1889, Letters Received, NA.

14 Superintendent John R. Brennan to Indian Commissioner, June

24, 1909, Letters Received, NA.

15 Acting Commissioner C. R. Larabee to Pine Agent, April 26,

1907, Letters Received, NA.

34a

The Oglala Council asserted its influence, to be sure.

For example, from 1902 to 1906 it foiled the efforts of

Agent John Brennan and the Business Committee to ar-

range the lease of tribal pastures to a livestock syndicate.

At length, Brennan dropped the issue for fear of provok-

ing unnecessary friction in the tribe."

This was an exception, however, because even on re-

mote Pine Ridge “progressive” leaders spoke in ever in-

creasing numbers favoring cooperation with the Agent.

Several wrote as early as 1894, urging federal officials to

“do away with this Chieftain business which is unprogres-

sive” and to rely on “regular councils . . . as the white

men have . . . to encourage and assist progressive In-

dians.” ** The number of men with this disposition grew

as the tribe became increasingly dependent on federal

support. In 1917, when compliant voting adults were in

the majority and traditionalists of the Oglala Council

were silent, Superintendent H. M. Tidwell called for the

election of a new business committee of twenty delegates

from farm districts, by ballot in general council, to func-

tion as an “executive committee” or “deliberative body of

practical size to consider and act on the ordinary business

of the tribe.” "* This committee carried on tribal affairs

under supervision by the Superintendent until the 1930s,

when the general council adopted and the people voted

approval for a constitutional government to operate under

the terms of the Indian Reorganization Act."

16 John R. Brennan to Indian Commissioner, November 3, 1902,

April 14, 1905, November 17, 1906; Oglala Council to John R.

Brennan, November 11, 1906, Letters Received, NA.

17 George Standing Bear, Henry Twist and Fast Forse to Indian

Commissioner to D. H. Browning, October 13, 1894, Letters Re-

ceived, NA.

18 Pine Ridge “Constitution, By-laws, and Resolutions,” Indian

Central Classified File, IRA Records, NA.

19 Acting Commissioner A. C. Monahan to Secretary of the

Interior, November 30, 1935, Pine Ridge IRA Files, NA.

es le iy

A at ile in Ae et *

35a

On Pine Ridge Reservation, traditional Oglala leaders

stood more tenaciously against the erosion of their au-

thority over central tribal affairs then did leaders any-

where in Sioux Country except perhaps those at Standing

Rock, and obviously the Oglalas were unsuccessful in the

effort to preserve their central power. On Pine Ridge, a

similar process of erosion took place in the communities,

where traditional bands and their leaders were replaced

for official purposes by Farm Districts and officers “made”

by the Superintendents. After the Agency Council

doubled for a time as the Court of Indian Offenses, spe-

cial judges were appointed to the Indian Court as regular

agency employees at the salary of $7 a month. Mainly,

they worked in cooperation with salaried tribal policemen

toward social control under supervision by the U. S. As-

sistant or Additional Farmers in the Districts. Case loads

were sparse, according to a 1915 report, but fairly sig-

nificant. “Over previous years” the judges had tried forty-

seven criminal cases “dealing with assault, adultry, for-

gery, cattle stealing, timber cutting, elopement, contempt

of court, drunkenness, fighting, wife beating, seduction

and perjury.” * Without question, the judges and police-

men performed vital services of governance. They did so

not as officials of their tribe, however, but as regular

agency employees on salaries under direct supervision

from Farmers, who in turn functioned as sub-agents

under Superintendents at Pine Ridge. And they behaved

like agency employees, especially when dealing with tra-

ditional ceremonies regarded inconsistent with Indian

Office orders, such as the practice of Peyote religion.”

At the community as well as the central level, on most

reservations tribal members participated in governance

through the era when the Dawes Act was in effect. But

2° Inspectors Fred S. Cook and H. S. Traylor, “Oglala Council”

Report, received July 12, 1915, Indian Central Classified File, NA.

21 Pine Ridge Inspection Report, July 7, 1915, Indian Central

Classified File, NA.

36a

they did so as agency operatives more than tribal leaders

under close supervision, and the power they exercised

diminished considerably. In primary sources pertaining

to their activities, there is nonetheless evidence that they

functioned to control some patterns of behavior among

Indians who occupied Indian land. Nowhere in these

records does evidence appear to state or demonstrate their

power of jurisdiction over non-Indians within reservation

boundaries, however, on land ceded as surplus for occu-

pancy by bondifide settlers.

Inasmuch as congressmen had access to correspond-

ence and reports on reservation life, and allocated funds

to support it, one must assume that governance which

existed approximated governance which congressmen

meant to support. One’s inclination regarding what con-

gresional intent should have been does not alter the con-

tents of a great body of original documents. They lead

to the conclusion that congressmen as well as adminis-

trators meant to diminish, constrain and in places destroy

tribal governance as part of the plan for de-tribalization,

and intended not to authorize tribal authority over Whites

who occupied ceded land, or citizen Indian allottees who

held patents in fee, within the original boundaries of

trans-Mississippi western reservations.

37a

CONGRESSIONAL INTENT REGARDING

JURISDICTION ON CEDED LAND DURING

THE ALLOTMENT ERA

PART II: THE LAW

A paper presented

to the

Western History Association

October, 1986

LeAnn Larson LaFave, Associate Professor of Law

University of South Dakota School of Law

38a

INTRODUCTION

In most areas of Anglo-American jurisprudence, a co-

herent body of law develops when a series of appellate

cases are decided in such a way that one decision lends

precedent to the next decision. Each new case places

the court at a fork in the judicial road. In most cases,

courts will follow the familiar path of past legal prece-

dents. Occasionally, however, courts detour from estab-

lished precedents. If two cases cannot be reconciled,

they are distinguished, and the law thereafter develops

along two separate paths. Other times, a well-worn road

is abandoned, as precedents which no longer reflect cur-

rent legal, social or political values are overruled. A

landmark decision often results when a past precedent

is overruled, and a new legal trail is blazed.

Indian law, however, often defies precedent. Old roads

as well as new roads may be abandoned without adequate

legal or policy justifications. New trails are often not

clearly marked. Decisions which could have been land-

marks’ are seemingly disregarded by subsequent courts.

For lawyers litigating Indian law issues, it is almost im-

possible to “map” current developments in Indian law.

The body of Indian law lacks coherence and consistency.”

Indian law seems to be developing on a case-by-case

1 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) is a case

in point.

2“Indian law ... is a bottomless pit.” NATURAL RESOURCE

SECTION, OFFICE OF ATTORNEY GENERAL, A REVIEW OF

THE SOUTH DAKOTA LAND CLAIMS xii (1983). Three As-

sistant Attorneys General co-authored the report; John P. Guhin,

Harold H. Deering, Jr., and Mark Smith. Confusion has also

been noted by commentators, (See Campbell, Reservations: The

Surplus Lands Acts and the Question of Reservation Disestablish-

ment, 12 AM. IND. L. REV. 57 (1984)) and litigants, Petition for

a Writ of Certiorari to the United States Court of Appeals for

the Tenth Circuit, Utah v. Ute Indian Tribe, petition for cert. filed

55 U.S.L.W. 3071 (U.S. May 5, 1986) (No. 85-1821) [ Hereinafter,

Petition for Writ of Cert., Utah v. Ute Indian Tribe].

39a

basis, without adhering to precedent and without estab-

lishing landmark decisions from which a coherent body

of law might begin to develop.

These disturbing developments in Indian law jurispru-

dence are especially apparent in the disestablishment

cases,’ sometimes referred to as boundary cases or dimin-

ishment cases. Such cases typically arise out of dis-

putes between Indian tribes or tribal members and state

or local governments. At issue is the respective authority

of tribes and other governmental units to exercise juris-

diction over land areas once set aside as Indian lands

and later opened for settlement pursuant to § 5 General

Allotment Act * surplus lands acts. “Enacted over a span

of almost thirty years after the passage of the Dawes Act

of 1887 [General Allotment Act, 24 Stat. 390 (1887)],

these statutes provided for the allotment in severalty of

tracts of land on specific reservations to individual tribal

members, and then for the opening of the surplus lands to

settlement.” ° The fundamental issue in each of the dis-

establishment cases is: Did Congress intend the surplus

lands acts to diminish reservation boundaries?

Recent disestablishment decisions by the United States

Supreme Court, the United States Court of Appeals for

the Tenth Circuit, and the United States District Court

3 There are five major Supreme Court disestablishment decisions:

Seymour v. Superintendent, 368 U.S. 351 (1962); Mattz v. Arnett,

412 U.S. 481 (1973) ; DeCoteau v. District County Court, 420 U.S.

425 (1975); Rosebud Sioux Tribe v. Kneip, 430 U.S. 581 (1977);

and Solem v. Bartlett, 465 U.S. 463 (1984). A pending case may

also become a major case: Utah v. Ute Indian Tribe, 521 F. Supp.

1072, aff'd in part and rev'd in part, 716 F.2d 1298 (201) (10th

Cir. 1983), aff'd in part and rev'd in part, on rehearing en banc,

773 F.2d 1087 (5-2) (10th Cir. 1985), petition for cert. filed, 55

U.S.L.W. 3071 (U.S. May 5, 1986) (No. 85-1821).

* General Allotment Act, 24 Stat. 390 (1887), § 5.

5 Campbell, supra note 2, at 57.

40a

for the District of North Dakota * have “compounded the

confusion produced by the contradictions and conflicts

already existing among the previous decisions in this

area.” ' Important historical facts relating to legislative

intent and federal policies regarding Indian people, In-

dian tribes and Indian lands, have been misapplied, mis-

interpreted, or ignored. Such cases violate available legal

precedents while ignoring historical facts which are essen-

tial to a well-reasoned resolution of issues relating to Con-

gressional intent. In some cases, “bad law” results be-

cause attorneys have failed to provide the courts with

an adequate evidentiary record (e.g., testimony of quali-

fied historians, historic documents, and legislative his-

tories) from which a court could make factual findings

to support legal conclusions regarding intent. In such

cases, there is simply no historical evidence, and courts

are left to function in an historical vacuum.* In other

cases the historical record presented has been somewhat

one-sided and incomplete. Historical reports which would

be unacceptable by historian’s standards have been given

great weight by these courts. In still other cases, where

limited historical evidence has been presented, courts

have ignored or improperly interpreted such evidence,

rendering decisions which might fairly be characterized

as knowing attempts to rewrite history to reflect contem-

porary notions of social justice or political expedience

rather than the intent of legislative drafters.

® See cases cited supra notes 2 and 3, and United States v. Grey

Bear, 636 F. Supp. 1551 (D.N.D. 1986).

7 Motion of the Counties of Dewey, Ziebach, and Corson, South

Dakota and the County of Sioux, North Dakota, for Leave to

File Petition for Rehearing and Petition for Rehearing, at 2-3,

Solem v. Bartlett, 465 U.S. 463 (1984). Also, see generally, Camp-

bell, supra note 2.

® Seymour v. Superintendent, supra note 3; Mattz v. Arnett,

supra note 3.

4la

The current state of the law raises several perplexing

questions: Why have the courts seemingly strayed so far

off any definable course in the disestablishment cases?

Why has no clear standard of construction emerged which

might bring some order to the currently chaotic disestab-

lishment adjudications? Will the United States Supreme

Court seize an opportunity to clarify current confusion

with a truly definitive statement?

In searching for possible answers to these questions,

let us begin by retracing the steps of the United States

Supreme Court in the five leading disestablishment cases

decided to date: Seymour v. Superintendent, 368 US.

351 (1962); Mattz v. Arnett, 412 U.S. 481 (1973);

DeCoteau v. District County Court, 420 U.S. 425 (1975);

Rosebud Sioux Tribe v. Kneip, 430 U.S. 581 (1977);

and Solem v. Bartlett, 465 U.S. 463 (1984). Tracing the

evolution of standards for determining Congressional in-

tent in the disestablishment cases, perhaps a “missed

turn” will be discovered, or a new path uncovered. After

looking to past cases for guidance, one can look ahead

to the critical juncture in the development of disestablish-

ment case law which is looming on a not too distant

horizon. The pending case of Utah v. Ute Indian Tribe,’

currently on writ of certiorari to the United States Court

of Appeals for the Tenth Circuit, will be analyzed as a

potential landmark decision. The United States Supreme

Court has the opportunity, in Ute, to clearly articulate a

standard of statutory construction which encourages his-

torical inquiry in the adjudication of Congressional in-

tent issues. If such a standard is defined and followed,

historians will play an essential role in assisting courts to

understand and interpret historical facts relevant to the

determination of issues of legislative intent. With ade-

quate development and application of historical facts in

disestablishment cases, perhaps legal conclusions based on

® See supra, note 3.

42a

those historical facts will begin to evolve into a series of

consistent, coherent precedents.

STANDARDS FOR DETERMINING CONGRES-

SIONAL INTENT IN THE FIVE MAJOR DISESTAB-

LISHMENT CASES

The Broad Context: Statutory Interpretation in the Su-

preme Court

“The legitimate scope of a court’s authority to make

law where a legislature has spoken . . . is a recurring

issue in American legal thought.” *° The Supreme Court

has wrestled with two competing versions of the “proper”

judicial role in statutory construction cases. “One ver-

sion grants primacy to the legislature as the author of the

Statute and therefore emphasizes the statutory text or leg-

islative intention. . . . The second version grants primacy

to the judicial reader or interpreter of the statute and

therefore emphasizes the creative role of common law

courts.” '* Each version has enjoyed dominance during at

least one regime of academic thought. These regimes

which influenced judicial behavior were catalogued by

Professor Paul N. Cox of Valparaiso University as fol-

lows:

The first regime, which shared some of its values

with legal positivism, prevailed in the late 19th and

early 20th centuries. Under it, courts . . . were to

emphasize the plain meaning of statutory text. .. .

[T]ext had primacy under such a view.

The second regime, which may be identified with

legal realism, . . . denied the authority of text by

demonstrating the indeterminacy of the meaning of

10 Cox, Rumination on Statutory Interpretation in the Burger

Court, 19 VALPARAISO UNIV. L. REV. 287, 288 (1985).

11 Id. at 289.

ee ee Ce a

- — ~~» whe

43a

language and denied the authority of legislative in-

tent by pronouncing it a fiction. Judges on these

premises are largely free from legislative will.

The third regime, perhaps best represented by the

Legal Process School . . . recognized the freedom of

judges to choose between alternative interpretations

of a statute. . . . The language of statutory text,

while not controlling, limited possible choices. . . .

[T]he third regime substituted legislative purpose as

the fundamental basis... . [T]he third regime .. .

treat{[s] author and interpreter as rough equals.

[W]e may have entered an era of the fourth regime,

the regime of chaos... .

If there is therefore no currently dominant interpre-

tive regime .. . it has nevertheless been recently

claimed that a particular interpretive strategy has

come to prevail in . . . the Burger Court: the strat-

egy of literalism. If so, the Court has returned full

circle to a version of the first regime and to the

contradictions of that regime: the text has primacy,

but its force is to be strictly limited to the language

employed by the national legislature.”

Because Indian law develops within a larger body of

law, problems of statutory interpretation which currently

plague Indian lawyers may also be plaguing our col-

leagues in other legal specialties. Attempts to change the

Court’s approach to statutory construction issues in the

Indian law context may be more difficult where the Court

_,as a whole is operating in another regime.

12 Td. at 290-295.

44a

The Narrower Focus: Congressional Intent Determina-

tions in Five Major Disestablishment Cases

During the past quarter century, the United States

Supreme Court has on five occasions addressed questions

of disestablishment or diminishment of Indian reserva-

tions.” In each case, the Court interpreted acts of Con-

gress which opened surplus lands (lands remaining after

allotments to individual Indian tribal members) to non-

Indian settlement, to determine whether those surplus

lands acts were intended to change or diminish reserva-

tion boundaries. None of the cases has yet emerged as

a controlling precedent. None of the cases has as yet

been overruled by a subsequent disestablishment case. In

each case, the Court has at least given lip service to the

need to determine Congressional intent, but rules of con-

struction have shown little consistency in application.

The court has heretofore failed to adopt a general his-

torical perspective when interpreting surplus lands acts.

Instead, the court seems to be proceeding on a case-by-

case, reservation-by-reservation basis when adjudicating

disestablishment issues. Confusion abounds, as com-

mentators both favoring and opposing disestablishment

results freely admit."* During the October 1986 Term,

the United States Supreme Court will again have an op-

portunity to clarify the confusion in yet another disestab-

lishment case, Ute v. Utah Indian Tribe, 521 Supp. 1072,

aff'd in part and rev'd in part, 716 F.2d 1298 (2-1 deci-

sion) (10th Cir. 1983), aff'd in part and rev'd in part,

on rehearing en banc, 773 F.2d 1087 (5-2 decision)

(10th Cir. 1985), petition for cert. filed, 55 U.S.L.W.

3071 (U.S. May 5, 1986) (No. 85-1821).

13 See supra note 3.

14See supra note 2. See also F. COHEN, HANDBOOK OF

FEDERAL INDIAN LAW 223 nn.56 and 57 (1982 ed.).

ee -"

45a

Seymour v. Superintendent

In Seymour a member of the Colville Indian Tribe was

convicted of burglary in a Washington state court. In a

habeas corpus proceeding, Seymour alleged that the state

court which had convicted and sentenced him was with-

out jurisdiction, since the crime he had allegedly com-

mitted took place in the southern half of the Colville

Indian Reservation, within “Indian country.”** The

Washington Supreme Court denied the petition, holding

that the southern half of the Colville Indian Reservation

had been disestablished and was therefore no longer “In-

dian country.” On writ of certiorari, the United States

Supreme Court reversed. It found that the surplus lands

act of 1906 did not diminish the original boundaries of

the reservation."* The case was decided in an historical

vacuum. No reference was even made to the General

Allotment Act or to the legislative history of the surplus

lands act in question, and no one addressed the fact that

the 1906 act was based on a formal cession agreement.

S. Rep. No. 1424, 59th Cong., Ist Sess. (1906). In

construing the statute, without aid of historical facts,

the court relied primarily on the language of the act and

a comparative statutory analysis (comparing one act with

an earlier act or resolution).

Mattz v. Arnett

In Mattz v Arnett, 412 U.S. 481 (1973), the Cali-

fornia Director of the Department of Fish and Game

1518 U.S.C. § 1151 defines Indian country to include a) all lands

within the limits of any Indian reservation; b) dependent Indian

communities; and c) allotments.

16 Act of March 22, 1906, 34 Stat. 80. Perhaps Seymour is most

remembered for its dicta, in which the Court distinguished Act of

1892, 27 Stat. 62, 63, the express terms of which “vacated and

restored to the public domain” the northern, disestablished half of

the Colville Indian Reservation. The Court thus implied that Con-

gress had intended some tracts of former reservation lands should

be subject to state law. 368 U.S. at 354-55.

46a

brought an action against a member of the tribe to forfeit

confiscated gill nets used in fishing. The defendant al-

leged he could not be denied his fishing rights within

Indian country, and his use of the gill nets had occurred

within the boundaries of the Klamath River Indian Res-

ervation. The outcome of the case hinged on the interpre-

tation of a surplus lands act, Act of June 17, 1892, 27

Stat. 52. The United States Supreme Court held that the

Act of 1892, while containing allotment provisions, was

not intended to terminate the reservation. The Court ac-

cepted a standard whereby Congressional intent to termi-

nate reservations must be expressed on the face of the

act or must be clear from surrounding circumstances and

legislative history. In a marked departure from the method

of statutory construction employed in Seymour, the Court

considered evidence relating to the history of the Klamath

Reservation, the legislative history of the 1892 Act, the

legislative history of bills which were defeated which

would have expressly abolished the reservation, and evi-

dence of subsequent treatment of the land as reservation

land by the Department of the Interior. Mattz thus

marked a tentative beginning of the development of a

historical interpretation of surplus lands acts. Although

the Court had a historical perspective of sorts, that per-

spective was distorted slightly by reliance on certain

unfounded and conclusory statements of historical “fact.”

For example, the Court accepted at face value an unsub-

stantiated statement from the Solicitor General that the

policy of the Dawes Act was to continue reservations."

Despite a greater reliance on historical data, the distinc-

tion between § 5 of the General Allotment Act and other

historical legislative enactments was blurred. No specific

17The Solicitor General has consistently argued against dis-

establishment in each of the reservation disestablishment cases.

In order to remain consistent in advocated outcomes, however, the

Solicitor General has been forced to shift legal theories in an at-

tempt to meet courts’ objections to previously rejected positions.

47a

reference to § 5 was included in the court’s opinion. The

plain meaning of the statutes was still given greatest

weight in the ultimate decision. In this regard, the Court

expanded the category of language that could terminate

reservations to include, in addition to the previously ap-

proved “vacated and restored to the public domain,”

“discontinued.” Express references to abolished reserva-

tion lines was also deemed evidence of disestablishment.

DeCoteau v. District County Court

In DeCoteau v. District County Court, 420 U.S. 425

(1975), the Court determined that the Lake Traverse

Indian Reservation in northeastern South Dakota had

been disestablished by the surplus lands act, Act of March

3, 1891, 26 Stat. 989. In making its determination the

Court had before it a complete legislative history of the

General Allotment Act as well as the legislative history

of the surplus lands act in question. The legislative his-

tory of the surplus lands act was read in context with

post-Dawes Act developments. Nevertheless, the Court

again placed great weight on the language of the 1891

Act, indicating that the plain language of the act indi-

cated the tribe’s consent to “cede, sell, relinquish and

convey” its reservation lands.

the DeCoteau court had an opportunity to limit Seymour

and Mattz to their facts. It declined to do so. Instead,

it made a weak attempt to distinguish the two prior cases,

while clearly indicating that Seymour and Mattz were

still “good law.” Justices Douglas, Brennan and Marshall,

dissenting in DeCoteau, saw an inconsistency between the

Court’s majority opinion in DeCoteau and its earlier

decisions in Seymour and Mattz. A focus on principle,

rather than semantics, lends support to the dissenters’

observation in that regard. However, read as a whole,

the dissenting opinion is the antithesis of a general his-

torical context standard for interpreting surplus land acts.

48a

Rosebud Sioux Tribe v. Kneip

In Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977), the Supreme Court found that the original bound-

aries of the Rosebud Sioux Reservation located in south-

central South Dakota, had been diminished by three

surplus lands statutes, enacted in 1904, 1907 and 1910.

The Court had the benefit of an extensive historical

record. It examined the historical circumstances of all

three statutes in great detail, as well as documents reflect-

ing the Indian policy during the period in question, par-

ticularly § 5 of the General Allotment Act. Evidence of

subsequent developments was also considered. Such evi-

dence established actual assumption of state jurisdiction,

unchallenged by Congress or the Department of Indian

Affairs.

The Court announced and applied a workable three-

part standard for determining Congressional intent. A

court was to examine 1) the fact of the legislative act;

2) surrounding circumstances; and 3) legislative history."*

Ascertainment of Congressional intent was clearly the

determinative factor in the Court’s decision. The legisla-

tive history reflected a clear intent to end reservation

status. The Court was also influenced by the plain mean-

ing of statutory terms relating to cession and relinquish-

18 430 U.S. at 587. Although there was no evidence of consent

by the Ros<sud Sioux Tribe to relinquish its lands (consent had

been a factor in DeCoteau, the absence of consent was not deemed

controlling, since the acts construed in Rosebud were passed after

the Supreme Court’s decision in Lone Wolf v. Hitchcock, 187 U.S.

553 (1903). “After Lone Wolf in 1903 established that Congress

could act unilaterally toward Indian lands and reservations, the

only relevant inquiry became Congressional intent.” The Court

also seemed unconcerned about the absence of judicially-approved

phrases such as “restored to the public domain” and “discontinued.”

The absence of such magic words did, however, concern the three

dissenters, Marshall, Brennan and Stewart. Rosebud Sioux Tribe

v. Kneip, 430 U.S. at 618 (Marshall, J., dissenting).

49a

ment, similar to the language in the De Coteau surplu

lands acts."

Rosebud had all the indica of a potential landmark

case. The Court’s mode of decisionmaking in Rosebud

could have been a prototype for subsequent litigation of

disestablishment issues. The Court seemed to be clearly

focusing its inquiry into the effect of surplus lands acts

on Congressional intent, and that intent was construed

against the backdrop of the General Allotment Act. It

went on to indicate that the surplus lands acts should be

read in their historical context, as the Court had done in

DeCoteau, so that Congressional intent might be more

accurately discerned. Yet Rosebud has not been subse-

quently applied as a landmark precedent.” Perhaps, if

the Court at this point had clearly distinguished Seymour

and Mattz, or limited those cases to their facts, the future

conflicts encountered in trying to reconcile those vestigial

cases with later pronouncements could have been avoided,”

and a coherent body of disestablishment case law could

have sprung from the Rosebud decision.

Recent judicial history, however, indicates that Rose-

bud has not been treated as a definitive landmark deci-

sion. Instead, it has been relegated to a status of just one

of the four preceding disestablishment cases which the court

in Solem could not reconcile. Several observers, particu-

larly those litigating on behalf of non-Indian clients and

governmental units in current disestablishment contro-

versies, are left to wonder why the Court, which appeared

to be chartering a clear course in Rosebud, either veered

from the course, or “missed the turn” in deciding Solem.”

1 430 U.S. at 597.

2° Ute Indian Tribe v. State of Utah, 773 F.2d 1087, 1103 (1985)

(Seth, J., dissenting) .

“1 The dissenters noted a further inconsistency not only with

Seymour and Mattz, but also with the Court’s more recent decision

in DeCoteau. 430 U.S. at 618 (Marshall, J., dissenting).

22 Motion of the Counties, swpra note 7, at 7.

50a

Solem v. Bartlett

In Solem v. Bartlett, 465 U.S. 463 (1984), a convicted

rapist filed a habeas corpus petition. He contended that

the situs of the crime (a portion of the Cheyenne River

Sioux Reservation opened for settlement by a surplus

lands act), was within Indian country, and hence the state

court which convicted him was without jurisdiction. The

United States District Court for the District of South

Dakota issued the writ of habeas corpus, and the US.

Court of Appeals for the Eighth Circuit affirmed. The

Supreme Court, in an opinion authored by Justice Mar-

shall, held that the Cheyenne River Act [Act of May 29,

1908, 35 Stat. 460] which authorized the Secretary of

Interior to open 1.6 million acres of the Cheyenne River

Sioux Reservation for homesteading, did not diminish

the boundaries of the reservation.

The Solem court had access to historical data which led

to its conclusion that “the Congress that passed the sur-

plus lands acts anticipated the imminent demise of the

reservation and, in fact, passed the acts partially to facili-

tate the process.” * Nevertheless, the Court, in a quantum

leap of logic, concluded that Congress enacted certain

surplus land acts which contravened both its general intent

and the official policies of the allotment era. For the same

players to have enacted statutes with conflicting intent

would seem incongruous. Yet in DeCoteau and in Rose-

bud (decisions not overruled or distinguished in Solem),

the historical context had been deemed indicative of an

intent to diminish and disestablish reservations through

passage of the various surplus lands acts.**

*3104 S. Ct. at 1165.

*4 Id. The position which the court adopted in Solem incorporated

several arguments which had been advanced by the Solicitor Gen-

eral’s office, but rejected in DeCoteau and Rosebud.

a ee ee ee

ms a _— ——-

Sla

The Court departed from the standards set forth in

both DeCoteau and Rosebud, standards requiring that

historical evidence be considered in a broad historical

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