Amicus Curiae Brief — Hagen v. Utah

2

No. 92-6281 OFFICE oF THE CLERK

In The

Supreme Court of the United States

October Term, 1993

¢

ROBERT P. HAGEN,

Petitioner,

STATE OF UTAH,

Respondent.

+

On Writ Of Certiorari

To The Supreme Court Of The State Of Utah

¢

BRIEF FOR THE STATES OF SOUTH DAKOTA,

ARIZONA, CALIFORNIA, MONTANA, NEVADA

AND OKLAHOMA, AS AMICI CURIAE IN

SUPPORT OF RESPONDENT STATE OF UTAH

S

Mark BARNETT

Attorney General

JoHN P. GuHIN*

Deputy Attorney General

500 East Capitol

Pierre, SD 57501-5070

Telephone: (605) 773-3215

Attorneys for Respondent

"Counsel of Record

COCKLE LAW BRIEF PRINTING CO. ee on

CALL COLLBCT (402) 342-283

Arizona:

The Honorable Grant Woods

Office of Attorney General

1275 West Washington

Phoenix, Arizona 85007

California:

The Honorable Daniel E. Lungren

Office of Attorney General

Department of Justice

1515 K Street, Suite 511

Sacramento, California 95814

Montana:

The Honorable Marc Racicot

Office of Attorney General

Department of Justice

215 North Sanders

Helena, Montana 59620-1401

Nevada:

The Honorable Frankie Sue Del Papa

Office of Attorney General

198 South Carson Street

Carson City, Nevada 89710

Oklahoma:

The Honorable Susan B. Loving

Office of Attorney General

2300 North Lincoln Boulevard

Room 112

Oklahoma City, Oklahoma 73105

TABLE OF CONTENTS

Page

cu ccweeue i

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

INTEREST OF THE AMICI STATES................ |

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

ELE SLE 6

I CONGRESS INEVITABLY INTENDED DIMIN-

ISHMENT OF A RESERVATION WHEN IT

AFFIRMATIVELY RESTORED LAND TO THE

ee ees ccceecccedecuce 6

If CONTEMPORANEOUS CIRCUMSTANCES

DEMONSTRATE A CLEAR TRIBAL AND

CONGRESSIONAL UNDERSTANDING THAT

THE ACT WOULD CONSTITUTE DISESTAB-

EE 12

lif THE JUSTIFIABLE EXPECTATIONS OF THE

PARTIES ARE THAT THE RESERVATION

BOUNDARIES HAVE BEEN DIMINISHED... 14

EE 17

TABLE OF AUTHORITIES

Page

CAsEs:

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989)......... 1,3

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

dtdéthisandensvavdinaeneransuonraee 8, 9, 10

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

Louisiana v. Mississippi, 202 U.S. 1, 53-54 (1905)...... 15

Mattz v. Arnett, 412 U.S. 481 (1973) .................. 8

McFadden v. Mountain View Min. & Mill. Co., 97

sf | Rr re re rrr 7

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

Rhode Island v. Massachusetts, 45 U.S. 591, 639

Pi orénbedeunécsuausdabedadhenskcaaeaeaea 15

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

soresdeuceseseoeneensouesesaeetséeaiene 6, 9, 10, 11, 14

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

scudeddscucensuecosesausecssdedbetiaaneone 4, 7, 10, 11

Sioux Tribe v. United States, 316 U.S. 317 (1942)....... 7

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

South Dakota v. Bourland, 508 U.S. __, 124 L.Ed.2d

Se déctqecdsetanseucdedaddedumeiacuumacees co

State v. Flint, 756 P.2d 324 (Ariz. App. 1988), cert.

Gomtad, GE US. Gil (RGGI). occcccccccccccsessccccses 2

State v. Greenwalt, 663 P.2d 1178 (Mont. 1983) ........ 2

TABLE OF AUTHORITIES - Continued

Page

State v. Kuntz, 66 N.W.2d 531 (N.D. 1954)............ 2

State v. Larson, 455 N.W.2d 600 (S.D. 1990)........... 2

United States v. Pelican, 232 U.S. 442 (1914)........ 7, 12

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

1985) (en banc), cert. denied, 479 U.S. 994 (1986) ..5, 14

OTHER REFERENCES

Bureau of Econ. and Bus. Research Report, University

of Utah, Vol. 45, No. 1, p. 8, Table 5, July 1, 1984

aaah SitbbacovididedsGbabewbessscéusbsdscece 15

State v. Perank: Is the Unitah-Ouray Reservation

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

ie MT ccvadecoduasecceccatvesuseuediecss 13

Act of May 27, 1902, 32 Stat. 245 (1902)........... 6, 12

Mic tic nivasinededarserdveeckscsugeceicdecus 1

The State of South Dakota, and the other amici states,

through their respective Attorneys General, respectfully

submit a Brief Amicus Curiae pursuant to Supreme Court

Rule 37.2 in support of the Respondent.

«

INTEREST OF THE AMICI STATES

The United States has created, within each of the

amici states, reservations through treaty, statute or execu-

tive order. Many of these reservations have been, in the

view of the amici states, diminished or disestablished by

subsequent federal action.

The amici states have a vital interest in the proper

determination of present reservation boundaries. In the

absence of federal legislation similar to P.L. 83-280,' the

states are generally prohibited from exercising criminal

jurisdiction over tribal members within reservation

1 The question whether a reservation boundary has been

diminished or disestablished will impact even P.L. 83-280 states.

18 U.S.C. § 1151(a) defines “Indian country” in part as:

all land within the limits of any Indian reservation

under the jurisdiction of the United States govern-

ment, notwithstanding the issuances of any patent,

and, including rights-of-way running through the

reservation.

The limits of a reservation impact many areas of civil law as

well, for example, taxation, (see Oklahoma Tax Comm. v. Sac and

Fox Nation, 508 U.S. __ (1993)); hunting and fishing, (South

Dakota v. Bourland, 508 U.S. ___ (1993), and Montana v. United

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

Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989);

and gaming, Indian Gaming Regulatory Act, 25 U.S.C.

§ 2703(4)(A).

boundaries; similarly, the courts have frequently found

that the states have no jurisdiction over non-Indians com-

mitting crimes against tribal members on reservations.

See, e.g., State v. Larson, 455 N.W.2d 600 (S.D. 1990); State

v. Flint, 756 P.2d 324 (Ariz. App. 1988), cert. denied, 492

U.S. 911 (1989); State v. Greenwalt, 663 P.2d 1178 (Mont.

1983); State v. Kuntz, 66 N.W.2d 531 (N.D. 1954). Federal

law enforcement on reservations, especially with regard

to nonfelonious activity, exists only at a low level as

demonstrated by testimony repeatedly given through the

last decade by the tribes and others.? Tribal law enforce-

ment with regard to its own members, is frequently lax

? See, e.g., Jurisdiction on Indian Reservations-Part 2: Hearing

Before the Senate Select Committee on indian Affairs, 96th Cong., 2d

Sess. at 24 (Aug. 11, 1980) (hereinafter Jurisdiction-Part 2): “The

most common crimes, such as assaults or small burglaries, sim-

ply are not prosecuted in the vast majority of instances.” (com-

ment of Caleb Shields, Ft. Peck Tribal Executive Board); Id. at 56

(comment of Senator Melcher revealing complaints of state

judges that federal authorities do not prosecute even major

crimes); Id. at 32 (comment of local chief of police that only one

of ten “felony-type” theft, burglary or assault cases are pros-

ecuted on the reservation); Id. at 26 (United States Magistrate's

comment on infrequency of prosecution of reservation assaults).

Similar testimony was received approximately a decade later.

See, e.g., Investigation and Prosecution of Federal Crimes on indian

Reservations: Hearings Before the Committee on Interior and Insular

Affairs, House of Representatives, 101st Cong., 1st Sess. at 187

(1989): “[O}nly the most aggregious [sic] and clear-cut cases can

properly be pursued.” (comment of Tribal Chairman Ket-

achezan); Id. at 281: “[WJe see an awful lot of people who

probably should be prosecuted for different things just simply

slip through because no one is quite sure who is in charge.”

(comment of Representative Campbell); see also H.R. Rep. No.

101-60, 101st Cong., Ist Sess. at 7 (1989).

and politicized. See generally Duro v. Reina, 495 U.S. 676,

693 (1990). No tribal law enforcement exists, of course,

with regard to non-Indians. Improper resolution of reser-

vation boundary issues unnecessarily restricts the appro-

priate reach of state law enforcement to the detriment of

those Indians and non-Indians on the purported reserva-

tions and causes cases frequently to “fall through the

cracks.”

Furthermore, while the states agree with Petitioner

Tribe that tribal authority over non-Indians has been

“severely” limited and can be exercised only in “rare

situations,” Brief of Petitioner at 30, n.14, the tribes none-

theless still retain the ability to and do subject non-

Indians on reservations to lengthy legal battles to free

themselves from unwanted (and unwarranted) tribal

jurisdiction. See, e.g., South Dakota v. Bourland, 508 US.

___, 124 L.Ed.2d 606 (1993); Brendale v. Confederated Tribes

and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989);

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

¢

3 Legislators in both the 1980 and 1989 hearings drew atten-

tion to the fact that reservation law enforcement let cases “fall

through the cracks.” See Jurisdiction-Part 2, supra at 21 (comment

of Senator Melcher); Investigations and Prosecution of Federal

Crimes on Indian Reservations: Oversight Hearings Before the Com-

mittee on Interior and Insular Affairs, 100th Cong., 2d Sess. 249

(1988); Prosecution of Federal Crimes, supra at 249: “Case-by-case

determination can lead to a cumbersome, inefficient process

which ultimately leads to cases falling through the cracks.”

(Comment of Representative Tim Johnson.)

SUMMARY OF ARGUMENT

In Solem v. Bartlett, 465 U.S. 463, 470 (1984), this Court

set out a “fairly clean analytical structure” for determin-

ing when a surplus land act had disestablished a reserva-

tion boundary. The determination of whether a

reservation boundary has been diminished is a matter of

discerning congressional intent, and “[t]he most proba-

tive evidence of congressional intent is the statutory lan-

guage.” Id. Thus, the Court looks to the language of the

congressional enactment to find “[e)xplicit reference to

cession or other language evidencing the present and total

surrender of all tribal interests... . ” Id. (Emphasis

added.) As Solem itself indicates, through reference to

Seymour v. Superintendent, 368 U.S. 351, 355 (1962), as

cited at Solem, 465 U.S. at 470, language of an act which

affirmatively returns land to the “public domain” is such

“other language,” which evidences a “total surrender of

all tribal interests” and thus operates to disestablish the

reservation. “Cession” language may also be important

and when such “cession” language is “buttressed by an

unconditional commitment from Congress to compensate

the Indian Tribe for its opened land, there is an almost

insurmountable presumption that Congress meant” that

the Tribe’s reservation was thus diminished. Solem, 465

U.S. at 470-471.

Even absent language that diminishes the reservation

by returning the subject land to the “public domain,” and

even in the absence of “cession” language combined with

an unconditional commitment to compensate the Tribe,

the Court will look to the contemporaneous understand-

ing of the act. Solem, 465 U.S. at 471. Finally, the Court

will look to the actual settlement of the reservation to

determine what Congress “expected would happen once”

the land was opened to non-Indians. 465 U.S. at 472. The

Court also has indicated that “de facto, if not de jure”

diminishment may occur absent any other factor when an

area “has long since lost its Indian character.” 465 U.S. at

471.

Petitioner and his supporting amici analysis badly

slight several of the critical components of this Court's

tests. First, United States and Tribe ignore almost entirely

this Court’s consistent finding, set out in detail below,

that when Congress affirmatively, in “operative lan-

guage,” restores particular land to the “public domain,”

the reservation is pro tanto diminished. Second, Peti-

tioner implies the almost absolute necessity of “language

of cession” in an agreement with a Tribe combined with

an unconditional commitment from Congress to compen-

sate the Tribe for its open land so as to constitute dises-

tablishment. What Petitioner thus ignores is that a

“cession” of lands by a Tribe is merely one way that

allows them to be returned “to the public domain”; in

other words, the “cession” is merely a means to transfer

the lands to the public domain. Consistent with decisions

of this Court since 1914, when lands are restored to the

public domain either directly by an explicit restoration

“to the public domain,” or indirectly through “cession”

language, the reservation is diminished. Petitioner con-

fuses method with result.

Further, we suggest that Petitioner and the Tenth

Circuit Court of Appeals in Ute Indian Tribe v. Utah, 773

F.2d 1087 (10th Cir. 1985)(en banc), cert. denied, 479 US.

994 (1986) badly misread the contemporaneous under-

standing of the transactions between the Tribe and United

States, and, moreover, have ignored the demographics of

the area contrary to Solem v. Bartlett, 465 U.S. at 471-472

and Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-605

(1977).

In the case now before the Court, the critical act

provides that after certain allotments are made “the

unallotted lands within said reservation shall be restored

tothe public domain.” Act of May 27, 1902, 32 Stat. 245,

263-264 (1902). Congress, in the “operative language,”

restored the subject lands to the public domain, and thus,

in line with the well-established precedent disestablished

the reservation boundaries. Furthermore, the demo-

graphics of the former reservation indicate a long-stand-

ing overwhelming majority of non-Indians, and provide

both additional evidence of congressional intent to dises-

tablish and of de facto disestablishment.

°

ARGUMENT

I

CONGRESS INEVITABLY INTENDED DIMINISH-

MENT OF A RESERVATION WHEN IT AFFIRMA-

TIVELY RESTORED LAND TO THE “PUBLIC

DOMAIN.”

This Court has stated that:

The most probative evidence of congressional

intent is the statutory language used to open the

Indian lands.

Solem v. Bartlett, 465 U.S. 463, 470 (1984).

The rule giving primacy to the text of a congressional

statute is, of course, unassailable and is one which pro-

motes the rule of law. A search of the statutory language

which has, in the past, been used “to open the Indian

lands” indicates invariably that when Congress has

explicitly, in the “operative language” of a statute,

“restored lands to the public domain” it has been found

to have divested reservation status from the lands.

This Court’s adoption of this principle dates at least

to 1914, at a time period roughly contemporaneous with

the Surplus Lands Acts themselves. In United States v.

Pelican, 232 U.S. 442 (1914), the Court considered the Act

of July 1, 1892, which specified that a portion of a reser-

vation was “vacated and restored to the public domain.”

This Act, said the Court, was “legislation by which the

reservation was diminished.” 232 U.S. at 445. The 1914

finding of the Court with regard to language which

restored areas “to the public domain” is especially valu-

able, given its proximity in time with the legislation itself.

Pelican is itself consistent with an even earlier circuit

court decision, McFadden v. Mountain View Min. & Mill.

Co., 97 FR. 670 (9th Cir. 1899).

The second opportunity for this Court to examine

this question came in Sioux Tribe v. United States, 316 U.S.

317 (1942). In Sioux Tribe, the Court considered various

executive orders which indicated that particular land was

“restored to the public domain.’” 316 U.S. at 323. In

each of these cases, restoration to the public domain was

equated with the termination of any special status.

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

the Court reaffirmed the concept that a reservation was

diminished when the lands were “vacated and restored to

the public domain. . . . ” The Court stated that:

In 1892, the size of this reservation was dimin-

ished when Congress passed an Act that, subject

to reservations and allotments made to individ-

ual Colville Indians, about one-half of the origi-

nal Colville reservation, since commonly

referred to as the ‘North Half,’ should be

‘vacated and restored to the public domain... . ’

(Footnote omitted.)

Unlike legislation relating to the North Half, the later

legislation relating to the South Half contained no

“restore to the public domain” language and the Court

thus refused to find disestablishment of the South Half.

Mattz v. Arnett, 412 U.S. 481 (1973) traced the pro-

gress of certain surplus land legislation which had origi-

nally provided that the lands “be restored to the public

domain.” 412 U.S. at 502. The bill containing that lan-

guage, however, was defeated in the Senate, see 412 U.S.

at 502, and legislation ultimately passed without such

language. The Court was to hold that no disestablishment

was effected.4

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

(1975), the Court considered the disestablishment of the

Sisseton Reservation in South Dakota. Although the stat-

ute at issue did not explicitly restore the lands “to the

4 The Mattz Court did, however, refer to language which

affirmatively “vacated and restored to the public domain” the

Colville lands as “clear language of express termination... . ”

Mattz, 412 U.S. at 504, n.22.

public domain,” the effect of the Act was to accomplish

just that. As the Court said:

This language [i.e., the Sisseton Agreement lan-

guage] is virtually indistinguishable from that

used in the other sum-certain, cession agree-

ments ratified by Congress in the same 1891 Act.

See nn.21 and 22, supra. That the lands ceded in

the other agreements were returned 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 agreements would

return the ceded lands to the “public domain.”

DeCoteau, 420 U.S. at 446. The critical point in DeCoteau is

that the effect of the Act was to “restore lands to the

public domain” and that this “restoration to the public

domain” constituted the disestablishment of the reserva-

tion.

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

this Court considered again congressional language

restoring land “to the public domain.” The Court drew

attention to the creation of the Great Sioux Reservation

which constituted twenty-five million acres. Rosebud, 430

U.S. 589. The Court found that in 1877, the Black Hills

portion of the reservation was removed from the reserva-

tion. In 1889, according to the court:

approximately one-half of the remaining reser-

vation was ‘restored to the public domain’

under the Act of March 2, 1889, 25 Stat. 896,

§ 21, while six separate Reservations were

carved out of the remainder. (Footnote omitted.)

§§ 1-6.

Rosebud, 420 U.S. at 519.

10

The Court thus equated the affirmative restoration to

the “public domain” of the remaining one-half of the

Great Sioux Reservation with disestablishment of that

portion of the reservation.

Although the diminishments of Mellette, Tripp and

Gregory Counties at issue in Rosebud did not contain the

“public domain” language, other indicia of disestablish-

ment allowed the six-member majority to find disestab-

lishment. Three Justices dissented but nonetheless

positively endorsed the principle that restoration to the

“public domain” language was “clear language of express

termination.” 430 U.S. at 618 (Marshall, J., dissenting).

The dissenters likewise added their specific agreement

that when Congress “expressly ‘restored to the public

domain’ ” part of the Great Sioux Reservation, that part

of the Reservation was disestablished. Id.

Solem v. Bartlett, supra, again affirms the concept that

return of land to the public domain constitutes disestab-

lishment of reservation boundaries. In Solem, 465 U.S. at

470, the Court began by explicitly noting that:

The most probative evidence of congressional

intent is the statutory language used to open the

Indian lands. Explicit reference to cession or

other language evidencing the present and total sur-

render of all tribal interests strongly suggest that

Congress meant to divest from the reservation all

unallotted opened lands. DeCoteau, the District

County Court, supra at 444-445; Seymour v. Super-

intendent, supra at 355. (Emphasis added.)

The cases cited in this passage are DeCoteau and

Seymour v. Superintendent. In DeCoteau, the language cited

was “cession” language coupled with an unconditional

11

commitment to compensate. Seymour v. Superintendent, as

cited by Solem, contrasts language which “vacated and

restored [certain lands] to the public domain” and thus

diminished the reservation, Seymour, 368 U.S. at 355, with

language of a second act which, among other things, did

not “return land to the public domain,” id., and did not

diminish the reservation. The citation of this particular

passage in Seymour by the Solem Court indicates the Solem

Court’s adherence to the long line of cases indicating that

restoration to the public domain does, in fact, constitute

termination of reservation status for the lands involved.

It also indicates, not surprisingly, the adherence of Justice

Marshall, the author of Solem v. Bartlett, with his earlier

dissent, in Rosebud Sioux Tribe v. Kneip, 430 U.S. at 618,

that restoration to the “public domain” language was

“clear language of express termination.” The argument

has been made that Solem altered this long-standing rule

regarding disestablishment by virtue of return of land to

the public domain. In Solem, however, Congress did not

affirmatively restore lands to the public domain. Instead,

Congress merely provided that the secretary should “sell

and dispose” of certain lands. 465 U.S. at 473. There is no

affirmative restoration of lands to the public domain by

Congress in the Solem Act. It is, of course, true that one

section of the Act referred to certain areas of the reserva-

tion as being in “the public domain.” See Solem, 465 U.S.

at 475. The Court in Solem, 465 U.S. at 472, 474, however,

directs its focus to the “operative language” of the Act, or

the language through which Congress affirmatively

acted. There is nowhere within the “operative language”

of the Cheyenne River Act an affirmative restoration of

Indian lands to the “public domain.” The lack of

12

“operative language” restoring the lands to “the pubic

domain” distinguishes Solem from the earlier cases.°

Thus, this Court has consistently held that when a stat-

ute in its “operative language” restores lands to the public

domain, those lands are disestablished or removed from the

reservation. That is precisely the case here. The Act of May

27, 1902, 32 Stat. 245, 263-264, provides that after allotments

are made “the unallotted lands within said reservation shall

be restored to the public domain. ...” In line with the cases

from Pelican to Solem, this affirmative restoration of lands to

the public domain amounts to a congressional determination

that the reservation is disestablished.

CONTEMPORANEOUS CIRCUMSTANCES DEMON-

STRATE A CLEAR TRIBAL AND CONGRESSIONAL

UNDERSTANDING THAT THE ACT WOULD CON-

STITUTE DISESTABLISHMENT.

The State of Utah has ably demonstrated that con-

temporaneous circumstances indicate a clear tribal and

5 The Solem Court also stated that “even without diminish-

ment, unallotted opened lands could be conceived of as being in

‘the public domain’ inasmuch as they were available through

settlement.” 465 U.S. at 475 n.17. The Court does not, however,

undermine its earlier holdings that language affirmatively

restoring lands to the public domain disestablishes the reserva-

tion, but refers here only to one potential concept of the nature

of “public domain.” A contrary conclusion, i.e., one which evis-

cerates the significance of “public domain” language when used

to describe affirmative action by Congress, would reduce the

several cases cited above to irrelevancy, a result the Court did

not, presumably, intend.

13

congressional understanding that the legislation in issue

would disestablish the reservation. The most critical part

of the negotiations was Commissioner McLaughlin’s talk

with tribal members which explained, in as clear terms as

possible, that the boundary to the reservation was being

eliminated whether the tribal members desired such elim-

ination or not. McLaughlin stated in his negotiations with

the Tribe:

You say that line is very heavy and that the

reservation is nailed down upon the border.

That is very true as applying to the past many

years and up to now, but 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. .. .

The question of opening the reservation is not

with you; that has been determined by the act of

congress. ...

JX 162, pp. 42-45 (emphasis added). See State v. Perank: Is

the Unitah-Ouray Reservation “Nailed Down Upon the Bor-

der”, 1992 B.Y.U.L. Rev. 1247 (1992). The United States

now attempts to repudiate the statement of its negotiator

with the Tribes. See Brief for the United States as Amicus

Curiae Supporting Petitioner at 23 and n.31. Although

McLaughlin clearly informed the tribal members that the

reason that Congress could take such action was a recent

Supreme Court decision, the tribal members are pre-

sumed not to know or believe this statement apparently

because the decision was “only four months” old. /d. In

fact, matters proceeded precisely as McLaughlin told the

Tribes they would proceed: Congress “pulled up the

nails” of the reservation and provided that there would

14

be “no outside boundary line”; it also imposed a manda-

tory allotment scheme. JX 162, pp. 42-45. (A more exten-

sive excerpt from this dialogue is set forth as Appendix

“C” to Utah’s Brief.) The federal position that a true

statement to the Tribe by a federal negotiator should be

ignored is anomalous, to say the least.®

THE JUSTIFIABLE EXPECTATIONS OF THE PARTIES

ARE THAT THE RESERVATION BOUNDARIES HAVE

BEEN DIMINISHED.

Rosebud, 430 U.S. at 604-605 and Solem, 465 U‘S. at

471-472, grant substantial deference to the justifiable

expectations of the parties with regard to the existence or

nonexistence of reservation boundaries. Close consider-

ation of the cases indicates that such deference is

expressed in two ways. First, according to Solem, 465 U.S.

at 471-472, a court will:

© It is striking that neither the United States nor the tribe

now contests the removal of the Gilsonite Strip from this very

reservation by the Act of May 24, 1888, 25 Stat. 157. This statute

provided that the lands were to be “restored to the public

domain,” after a favorable tribal vote. Moreover, the accom-

panying House Report, H.R. Rep. No. 791, 50th Cong., Ist Sess.

at 3 (1888), reinforces the view that Congress intended to termi-

nate reservation status when it returned reservation lands to the

public domain, stating: “[T]he policy of the Government from

its earliest days has been to restore Indian reservations or por-

tions thereof to the public domain as the exigencies of advancing

population required it. . . . ” (Emphasis added.) See Ute Indian

Tribe v. Utah, 773 F.2d 1087, 1108 (10th Cir. 1985)(Seth, J., dissent-

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

15

look to the subsequent demographic history of

the opened lands as one additional clue as to

what Congress expected would happen once

land on a particular reservation was opened to

non-Indian settlers. (Footnote omitted.)

Second, and more dramatically, the influx of non-Indians

into an area may well signal acquiescence of the parties in

diminishment and, consistent with the law of state boundary

disputes, de facto diminishment might be found. Solem, 465

U.S. at 471. See also Louisiana v. Mississippi, 202 U.S. 1, 53-54

(1906)(“[T]his court has many times held that, as between the

States of the Union, long acquiescence in the assertion of a

particular boundary and the exercise of dominion and sover-

eignty over the territory within it, should be accepted as

conclusive. . . . ”); Rhode Island v. Massachusetts, 45 U.S. 591,

639 (1846) (“for the security of rights, whether of States or

individuals, long possession under a claim of title is pro-

tected. And there is no controversy in which this great

principle may be involved with greater justice and propriety

than in a case of disputed boundary”).

In the case now before the Court, the demographic

information constitutes strong and compelling evidence

of congressional intent to disestablish and, in addition, is

of such a quality as to support a finding of de jure or de

facto disestablishment.

The most important demographic fact is that the area

is overwhelmingly populated by non-Indians. At least

18,000 non-Indians live within the historic reservation

boundaries. (J.A. 130-131) (Seth, J., dissenting). Only

1,500 enrolled members of the Tribe live within the for-

mer boundaries. Pet. App. 38A.; Bureau of Econ. and Bus.

16

Research Report, University of Utah, Vol. 45, No. 1, p. 8,

Table 5, July 1, 1984 (1985).

Further, of those 1,500 members, only about 300 live

on the actual nontrust lands at issue before this Court.

J.A. 131. Thus, using the figures most generously to the

Tribe, approximately 92% of the persons within the his-

toric boundaries are non-Indian. Utilizing the number of

Native Americans who reside upon the land actually at

issue in this case, the statistics become even more over-

whelming. Of the approximately 18,000 persons who live

on the nontrust areas, over 98% are non-Indian; only

about 300 Native Americans live in the nontrust areas, as

noted above.

Similarly, patterns within the historic reservation

boundaries at issue parallel population configurations.

Virtually all the land in question consists of private, state,

Bureau of Land Management or federal Forest Service

property. See Map, J.A. 185.

In short, relying upon the restoration of the now

disputed lands to the public domain, thousands of non-

Indians entered the area and now overwhelmingly popu-

late and own the area. Their justifiable expectations are to

live pursuant to the rules and regulations of a govern-

ment in which they can participate, and to have access to

a responsive law and order system which is able to deal

with offenses of all persons within the community. They

also necessarily expected to be free from the incessant

disputes which face non-Indians with regard to civil reg-

ulatory issues.

17

CONCLUSION

The most important single factor in determining

whether reservation boundaries have been diminished is

the language of the statute. In the case now before this

Court, Congress affirmatively, in the “operative lan-

guage” of the statute, restored the land in question “to

the public domain.” Such affirmative restoration of lands

to the public domain, without exception, has been held to

constitute disestablishment of reservation boundaries.

This interpretation is further supported by the contempo-

raneous understanding of the statute and in particular by

the clear and unequivocal statement of the negotiator for

the United States to the Tribe. Finally, the overwhelming

number of non-Indians who have entered the area subse-

quent to the restoration of the land to the public domain

indicate a settled expectation which should not, under

this Court’s precedents, be now disturbed.

The decision of the Utah Supreme Court should be

affirmed.

Respectfully submitted,

Mark BARNETT

Attorney General

State of South Dakota

500 E. Capitol

Pierre, SD 57501-5070

(605) 773-3215

JoHN P. GuHin*

Deputy Attorney General

500 E. Capitol

Pierre, SD 57501-5070

(605) 773-3215

*Counsel of Record