# Amicus Curiae Brief — Hagen v. Utah

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 399

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0420%3A21. Public record. Not legal advice.