# Amicus Curiae Brief — Hagen v. Utah > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0420%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1994 - **Citation:** 510 U.S. 399 ## Text ° BEST AVAIL * La | “4 ty 39 : : 7 a = ~: > Ng Ww ae °e% A As a 7 A ~se-t - 7 ; - (Te a ry. ae un ia tM Gh gh ys ty ABLE COPY: ’ \a , i oe ny ig & 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 ii 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 6 6 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) .... iv 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 v 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. 2 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 3 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. 4 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. 5 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. 6 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). 7 _ 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. 8 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- 9 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 10 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. 11 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. 12 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. 13 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). 14 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). 15 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 16 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, ... . 17 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 18 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 19 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’’). 20 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. 21 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, 22 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 23 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 24 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 25 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 26 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. 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. 28 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, 29 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). 30 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 31 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 Copyright Herbert T. Hoover, Rt. 2, Box 25, Vermillion, SD 57069 2a 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 3a 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. 4a 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. Sa 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. 6a 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. 7a 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 a 8a 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. 9a 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. (c) The notion that men in Congress who flaunted 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 187 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0420%3A19. Public record. Not legal advice.