Amicus Curiae Brief — Department of the Interior v. South Dakota

;

j JUL 2 1896

No. 95-1956 | a

—

hn the

Supreme Coint of the Anited States

October Term, 1994

UNITED STATES DEPARTMENT

OF THE INTERIOR, ET AL..,

Petitioners,

vs.

STATE OF SOUTH DAKOTA

AND CITY OF OACOMA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF AMICUS CURIAE

MINNESOTA CHIPPEWA TRIBE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

STEVEN G. THORNE

Counsel of Record

JACOBSON, BUFFALO,

SCHOESSLER & MAGNUSON

10 South Fifth Street

Suite 810

Minneapolis, MN 55402

(612) 339-2071

Attorneys for Amicus Curiae

Minnesota Chippewa Tribe

1996 — Bachman Legal Printing & (612) 339-9518 @ FAX (612) 337-8053

INDEX

CO

Tee ee eee ee eee eee ee eee ee ee eee ee eee eee!

COR

OPP eee eee ee Pee eee eee eee Pee ee ee eee ee ee eee eee eee eee ee eee ee ee eee ee eee ee

OPP ee eee eee eee eee eee eee eee eee eee ee eee eee ee eee eee eee eee eee eee eee eee

TABLE OF AUTHORITIES

Federal Cases Cited Page No.

80 Ct. Cl. 410 (1935), affirmed, 301 U.S. 358 (1937)......3

Mi Chi Tribe v. United S

RTT 3

ee FInteri

ee ecnvonncssuavectoce 5

Federal Statutes and Regulations

Indian Self-Determination and Education Assistance Act

of 1975

a sossnsernrconevencess 6

Tribal Self-Governance Demonstration Project

Act of 1991

a scsansnocnnsntocoocseons 6

Indian Reorganization Act of 1934

os cccnivccanacecnes passim

Indian Financing Act of 1974

a scssssnsesessousnesens 6

Indian Child Welfare Act of 1968

os cnsncasncosacoen 6

Indian Tribal Justice Act

25 U.S.C. 3601, 3602, 3611, 3612, 3613, 3614, 3621,

ERAS OEE AES TRS A Cn EN 6

Clean Air Act Amendments of 1991

ee senipaneninesenaietebennboneis 6

The Nelson Act of 1889

RESET Te ea ee 3

The General Allotment Act

ET cee eo 3

Ske a TE AE ile PR ae ee ee 5

Miscellaneous

I casdeneniniiuniaens l

4 Folwell, A History of Minnesota ......................0.0oooocee 3

Judith V. Royster, A Legacy of Allotment

Is ls cmaniins 3

Goals and Programs for the American Indians

EE ae 6

Special Message to Congress on Indian Affairs

a Bas SNC cece ccccennsonccnccsssicecodecososscosssesc 6

i=

Statement on Indian Policy

I cecal

Statement Reaffirming the Government-to-Government

Relationships Between the Federal Government and

Indian Tribal Governments

27 Weekly Comp. Pres. Doc. 783 (June 14, 1991) ...........

Memorandum of President Clinton on Government-to-

Government Relations With Native American Tribal

Governments

30 Weekly Comp. Pres. Doc. 936 (April 28, 1994) ...........

IV

INTEREST OF THE AMICUS CURIAE

The Minnesota Chippewa Tribe (the "MCT") is a

federally recognized tribe of Indians' that is organized under

Section 16 of the Indian Reorganization Act of 1934, 25

U.S.C. 476. It operates under a Constitution and Bylaws

originally approved by the Secretary of the Interior in 1936

and re-approved as revised on March 3, 1964. The Tribe

serves as the umbrella organization for six bands of Minnesota

Chippewas: Bois Forte (Nett Lake), Fond du Lac, Grand

Portage, Leech Lake, Mille Lacs, and White Earth. Since the

passaze of the Indian Reorganization Act in 1934 (the

"IRA")’, substantial amounts of land have been acquired by

the United States pursuant to Section 5 of the IRA (25 U.S.C.

465) either in trust for the Tribe itself or for its individual

constituent bands. Currently, action is pending before the

Secretary of the U.S. Department of the Interior on requests

to take over 120 parcels of land into trust for the various

Bands of the Tribe. The decision of the Court of Appeals in

this case directly affects these and all future transfers into trust

by the Tribe and its six Bands.

SUMMARY OF ARGUMENT

The United States Court of Appeals for the Eighth Circuit

has found one of the core statutes of federal Indian law to be

unconstitutional by adopting an _ extraordinarily strict

formulation of the so-called "“non-delegation doctrine”.

Whether Section 5 of the IRA is an unconstitutional delegation

of legislative authority is a fundamental and crucially important

question of both constitutional law and federal Indian law.

' See 48 Fed. Reg. 56854 (1983).

-25 U.S.C. 461 et seq.

The significance of Section 5 of the IRA to Federal Indian

Law is best illustrated by considering its importance to

individual reservations like those of the various Bands of the

Minnesota Chippewa Tribe. The six component Bands of the

Minnesota Chippewa Tribe occupy six separate reservations in

Northern Minnesota. The land bases of all of these

reservations were decimated in the late Nineteenth and early

Twentieth centuries by a combination of allotments to

individual Indians and sale of the of so-called "surplus"

reservation land to non-Indians. Since the passage of the IRA

in 1934, the constituent Bands of the MCT slowly have been

recovering their lost reservation lands, but the task is far from

over, and the loss of Section 5 of the IRA would be a serious

setback.

Tribal lands are the foundation upon which tribal

sovereignty and self-determination rest. If tribal lands are not

held in the name of the United States pursuant to Section 5,

tribal sovereignty would be weakened and the tribal self-

determination would be threatened contrary to the

longstanding policies of the Federal Government as expressed

in the extensive body of law, regulation and policy directives

that have been adopted since 1934. This body of legislative

and executive policy favoring tribal sovereignty and self-

determination is clear, consistent and coherent. To strike

down Section 5 on the grounds that Congress has failed to

fulfill its constitutional duty to provide reasonable guidance to

the Secretary of the Interior ignores not only the express

Statutory guidance contained in the IRA as a whole and the

general policy guidance contained in nearly all subsequent

federal Indian legislation, but also the specific purposes behind

Section 5 of the IRA as established by its legislative history

and the administrative rules adopted by the Secretary of the

Interior to implement it.

ARGUMENT

The six Bands of the Minnesota Chippewa Tribe occupy

separate reservations scattered across Northern Minnesota.

All of these reservations suffered the devastating effects of the

"Allotment Era" of federal Indian policy. The allotment

system came to Minnesota in the form of the so-called "Nelson

Act" of 1889. Act of January 14, 1889, ch. 24, 25 Stat. 642.

The Nelson Act, which was one of a number of "surplus land

acts" that applied the General Allotment Act* to particular

tribes, provided for the cession into trust of all of the lands of

the Chippewas in Minnesota, except sufficient land to make

allotments to individual Indians, and the conveyance of such

“surplus lands" to non-Indians as "pine lands" or homesteads.

By the time the Allotment Era came to an end in 1934 with the

passage of the IRA, all but a tiny fraction of the over 1.7

million acres of land in the reservations of the bands that

subsequently became part of the Minnesota Chippewa Tribe

had been lost to timber companies, iand speculators and

homesteaders. See Chippewa Indians of Minnesota v. United

States, 80 Ct. Cl. 410 (1935), affirmed, 301 U.S. 358 (1937),

Minnesota Chippewa Tribe v. United States, 11 Cl. Ct. 221

(1986); 4 Folwell, A History of Minnesota, 219-96.

The IRA not only ended the Allotment Era and put

federal Indian policy squarely behind tribal self-determination,

it also gave Indian tribes a tool to begin to rebuild their land

bases. See Judith V. Royster, The Legacy of Allotment, 27

Ariz. St. L. J. 1, at 7-8 (1995). Section 5 of the IRA

authorized the Secretary of the Interior to acquire land “for

the purpose of providing land for Indians" and required land

so acquired to be "taken in the name of the United States in

* Ch. 119, 24 Stat. 388.

trust for the Indian tribe or individual Indian for which the land

is acquired." 25 U.S.C. 465.

As Congress intended, this provision became, and remains

today, the primary tool for restoring tribal lands lost during the

Allotment Era. Federal trusteeship of tribal lands provides an

important extra measure of insurance that these lands will

never again be taken from the tribes or subjected to the hostile

actions of state or local governments. No other available land

acquisition method provides similar protection. The loss of

Section 5 would be a serious blow to tribal land recovery

efforts--efforts which are essential to maintaining the health,

welfare and governmental authority of the Tribes themselves.

On the MCT reservations tens of thousands of acres of

land have been taken into trust for the Tribe or its constituent

bands pursuant to Section 5 over the past sixty-two years, but

the task of rebuilding the tribal land base is far from done.

Non-Indians, along with the state and federal governments,

still hold the vast majority of the land in five of the six MCT

reservations. Lands still need to be acquired for housing,

economic development, natural resource and environmental

management, construction of tribal facilities, protection of

cultural and historical places and other public purposes.

In recent years, the six Bands of the Minnesota Chippewa

Tribe have continued to rely on Section 5 to transfer land into

trust. As various tribal enterprises have prospered, the Bands

have allocated substantial portions of their earnings to land

acquisition, and nearly all of the lands so acquired have been

or are in the process of being placed in trust.

A brief review of the status of pending requests by the

constituent bands of the MCT for trust acquisitions by the

Secretary of the Interior illustrates not only the critical

importance of Section 5 of the IRA but also the fact that the

process is being used responsibly to acquire lands consistent

with the purpose of the IRA as recognized by the Secretary of

the Interior in 25 CFR 151.3.* At present there are over 120

pending proposals for trust acquisitions for the MCT Bands.

These range in size from one or two acres to several hundred,

and total almost 7,000 acres. Nearly all are on a reservation,

and all sve for the kinds of public purposes contemplated by

the drafters of the IRA. For example, the Leech Lake and

Fond du Lac Bands each have 25 requests pending. All are to

expand the reservation land base or to provide much-needed

housing sites for Band members. Similarly, the White Earih

Band has thirty-two requests pending, all of which are to

expand the reservation land base and to provide housing sites,

except for two parcels, both on the reservation, which are for

gaming purposes. The reasons for the proposed trust

acquisition of six parcels on the Bois Forte Reservation are to

provide housing sites, to support economic development, and

to site a sewage treatment plant. The approximately 20

pending requests by the Mille Lacs and Grand Portage Bands

are for similar purposes.

Obviously, these kinds of proposals are well within the

congressional purposes behind the IRA as summarized by the

United States in its Petition for a Writ of Certiorari at 4-5, 16-

17 and 21-22. The Court of Appeals was manifestly in error

when it characterized Section 5 as lacking “perceptible

‘boundaries™ and “intelligible principles’ that constrain this

delegated authority." State of South Dakota; City of Oacoma

v. Unit tates Department of the Interior, 69 F.3d 878, 882,

*25 CFR 151.3, paragraph (a) provides that land may be acquired

for a tribe in trust under the following circumstances:

(1) when the property is located within the exterior boundaries

of the tribe's reservation or adjacent thereto, or within a tribal

consolidation area; or (2) when the tribe already owns an

interest in the land or, (3) when the Secretary determines that

the acquisition of land is necessary to facilitate tribal self-

determination, economic development, or Indian housing.

5

Appendix to Petition for Writ of Certiorari at 7a. The

legislative history of the IRA, and its language as discussed by

the United States in its Petition for Certiorari at 21-23, as

well as subsequent legislation dealing with Indian affairs,°

* Since the passage of the IRA (with a brief period of backsliding in

the 1950s), Congress and successive Presidents have built on this

foundation a body of law and policy that supports tribal sovereignty and

self-government. Prime examples include: President Johnson's Message

to the Congress on Goals and Programs for the American Indians, Pub.

Papers 335 (1968-69) (calling for a policy of "self-help, self-development,

and self-determination for Indians"), President Nixon's Special Message

to Congress on Indian Affairs, Pub. Papers 564 (1970) (proposing federal

promotion of tribal self-determination, sovereignty and control over

Indian country), President Reagan's Statement on Indian Policy, | Pub.

Papers 96 (1983) ("Our policy is to reaffirm dealing with Indian tribes on

government-to-government basis and to pursue the policy of self-

government for Indian tribes without threatening termination"), President

Bush's Statement Reaffirming the Government-to-Government

Relationships Between the Federal Government and Indian Tribal

Governments, 27 Weekly Comp. Pres. Doc. 783 (June 14, 1991);

Memorandum of President Clinton on Government-to-Government

Relations with Native American Tribal Governments, 30 Weekly Comp.

Pres. Doc. 936 (April 28, 1994) (reaffirming policy); Indian Self-

Determination and Education Assistance Act of 1975, 25 U.S.C. 450a(b)

(1983) (declaring Congressional "commitment to... the establishment of a

meaningful Indian self-determination policy"), Indian Financing Act of

1974, 25 U.S.C. 1451 (1983) (promoting tribal responsibility “for the

utilization and management of their own resources"); Indian Child

Welfare Act of 1868, 25 U.S.C. 1901, et seq. (1983) (granting exclusive

jurisdiction over Indian child custody to tribal courts); Tribal Self-

Governance Demonstration Project Act of 1991, 25 U.S.C. 450f (1995)

(amending the Indian Self Determination Act to provide devolution of

federal program responsibilities and federal funding to several tribal

governments); Clean Air Act Amendments of 1991, 42 U.S.C. 7602

(authorizing tribal governments to be treated as states for the purposes of

adopting reservation air quality standards); and the Indian Tribal Justice

Act, 25 U.S.C. 3601, 3602, 3611, 3612, 3613, 3614, 3621, 3631 (1995)

(recognizing that one aspect of tribal sovereignty is the power to establish

tribal courts). The Secretary's rules governing the transfer of land into

6

leave no doubt about the purposes of Section 5 or any

uncertainty that the rules of the Department of the Interior

effectuate these purposes.

CONCLUSION

If it is allowed to stand, the decision of the Court of Appeals

will do serious harm to the to the fundamental federal policies

favoring tribal sovereignty and self-determination. The ability

to transfer land into trust pursuant to Section 5 of the IRA is

one of the most important means of effectuating these policies.

For these reasons the Minnesota Chippewa Tribe urges the

Court to grant the Government's Petition for Certiorari.

Dated: July 2, 1996.

Respectfully submitted,

JACOBSON, BUFFALO,

SCHOESSLER & MAGNUSON, LTD.

Steven G. Thorne

Counsel of Record

10 South Fifth Street

Suite 810

Minneapolis, MN 55402

(612) 339-2071

Attorney for Amicus Curiae

Minnesota Chippewa Tribe

trust under Section 5 of the IRA certainly consistent with the entire body

of contemporary federal Indian law which in turn is based on the IRA.

7