Opposition Brief — South Dakota v. Yankton Sioux Tribe

IN THI i OFF LCE

, ' : : a

Supreme Court of the United States

OCTOBER TERM, 1997

On Petition for Writ of Certiorari To The

United States Court of Appeals For The Eighth Circuit

RESPONDENTS YANKTON SIOUX TRIBE AND

DARRELL DRAPEAU’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

QUESTION PRESENTED

WHETHER THE BOUNDARIES OF THE YANKTON

SIOUX RESERVATION ESTABLISHED BY THE

1858 TREATY BETWEEN THE YANKTON SIOUX

TRIBE AND THE UNITED STATES REMAIN

UNDIMINISHED.

QUESTION PRESENTED

TABLE OF AUTHORITIES

TABLE OF CONTENTS

LEGISLATIVE HISTORY, CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ... .. 1

INTRODUCTION . .

A. Procedural History . .

B. Historical Background . .

C. Corrections of Misstatements in the Petition . . . . 6

REASONS FOR DENYING THE WRIT .... .. 8

I.

Il.

THE PETITION FOR WRIT OF CERTIORARI IS

NOT APPROPRIATE IN THIS CASE BECAUSE

THE STATE ALLEGES ERRONEOUS FACTUAL

FINDINGS AND THE MISAPPLICATION OF A

PROPERLY STATED RULE OFLAW. .... . 8

GRANTING OF CERTIORARI WILL ENCOURAGE

STATE COURTS TO IGNORE PRINCIPLES OF

COMITY AND IGNORE FEDERAL DECISIONS

INTERPRETING ISSUES OF FEDERALLAW . . 9

Ill. THE STATE’S ARGUMENTS DO NOT

SUPPORT THIS COURT’S GRANTING OF

A WRIT OFPCERITORARI ......2.2...

A. The court of appeals decision does not conflict

with this court’s rulings on diminishment. . .

B. “Cession and sum certain” language

in the agreement is not dispositive . . .

C. Liquor provisions and common school language

do not indicate anintenttodiminish ..... .

IV. THE COURT SHOULD DENY THE WRIT OF

CERTIORARI BECAUSE THE STATE IS

BARRED FROM RELITIGATING THE

BOUNDARY ISSUE AND BECAUSE THE

TRIBE WAS NOT A PARTY AT THE STATE

<6 6 6 6 6 4 © 8 3 8

A. The State is barred from relitigating the boundary

issue under the doctrine of collateral estoppel ...

B. The Tribe is not bound by the state supreme court

decision because it was not a party

Ee ee a

DT « < 6 © os 4

_ 13

16

18

19

20

25

iv

TABLE OF AUTHORITIES

FEDERAL CASES

Benjamin v. Coughlin, 708 F. Supp. 570 (S.D.N.Y. 1989),

affd, 905 F.2d 571 (2nd Cir. 1990) .. 22

Blonder-Tongue Laboratories, Inc. v. University of Mlinois

Foundation, 402 U.S.313 (1971) . . 21

DeCoteau v. District County Court, 420 U.S. 425 (1975) 24

Dick v. United States, 208 U.S. 340 (1908) .......... 15

Federated Department Stores, Inc. v. Moitie, 452 U.S. 394

CRY wescacddabedebnesveseces 21

Georgia v. South Carolina, 497 U.S. 376 (1990) ...... 24

Hagen v. Utah, 510 U.S. 399 (1994)... . 6.6.66. passim

Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d

ROR GRNEED oc cvesusieccudeseewes 22

Mattz v. Arnett, 412 U.S. 481 (1973) ... 2.2.6.2 00 0e- 24

McClanahan vy. Arizona State Tax Commission, 411 U.S. 164

GPSS ce duckucctanbnvensacsdus 10

Montana v. United States, 440 U.S. 147 (1979) . 20,21, 23

Oldham vy. Pritchett, 599 F.2d 274 (8th Cir. 1979) ..... 21

Oregon Department of Fish and Wildlife v. Klamath Indian

Tribe, 473 U.S. 753 (1985) ........ 14

Vv

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) ... 21

Perrin v. U.S., 232 U.S. 478 (1914)

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) 15, 18

Solem v. Bartlett, 465 U.S. 463 (1984) .............. 24

Southern Pacific R. Co. v. United States, 168 U.S. 1 (1897)

ladacthcausiedestes bidees sawebon 20

United States v. Mendoza, 464 U.S. 154 (1984) .... 21,22

United States v. Southern Ute Tribe or Band of Indians, 402

ee PTE Wu eesidskaeonunes 15

Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980) .. 12

White Earth Band of Chippewa Indians v. Alexander, 683 F 2d

1129 (8th Cir. 1982) ............. 23

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ..... 10

Yankton Sioux Tribe v. Southern Missouri Waste

Management Dist., 890 F.Supp. 878 (D.S.D. 1995) .....

pcb eb ends seseeseeeeconesece. passim

Yankton Sioux Tribe v. Southern Missouri Waste

Management Dist., 99 F.3d 1439 (8th Cir. 1996) .. passim

Yankton Sioux Tribe v. United States, 623 F.2d 159

a ie 4,12

STATE CASES

Ex Parte Gurganus, 603 So. 2d 903 (Ala.1992) ....... 11

vi

St. Cloud v. Leapley, 521 N.W.2d 118 (S.D. 1994) .... 11

State v. Daly, 454 N.W.2d 342 (S.D. 1990) .......... 11

State v. Greger, 1997 $.D. 14 (1997) ........665: passim

State v. Spotted Horse, 462 N.W.2d 463 (S.D. 1990), cert.

denied, 500 U.S. 928 (1991) ....... 1]

State v. Thompson, 335 N.W.2d 349 (S.D. 1984) ...... 12

Wood v. Jameson, 130 N.W.2d 95 (S.D. 1964) ....... 12

FEDERAL STATUTES

DE Sant. P43 (IGS)... ccsccccccccccccccces 2, 3, 4,6

24 Stat. 388, General Allotment Act (Dawes Act) in 1887,

codified at 18 U.S.C. § 331 et.seq ... 4

25 Stat. 676 (1889) 0.0.6.6 e ee eevee eee rere rere es 26

SR ius edbarrae ras meeend passim

53 Cong. Rec. 6425, Senate Document 27 ....... passim

MISCELLANEOUS

Restatement (Second) of Judgments § 28, comment b -—

South Dakota Enabling Act, § 10, 25 Stat. Sere pe

South Dakota Constitution, Art. XXVVI,§18 ... 1, 11,15

Supreme Court Rule 10 ..... 2... 6. e eee eee eens 8

a —~—4 —_--_ —---

l

LEGISLATIVE HISTORY, CONSTITUTIONAL

AND STATUTORY PROVISIONS INVOLVED

Treaty with the Yankton Sioux, 1858, ratified 11 Stat.

743 (1859), reprinted in State’s App. 99.

Agreement with the Yankton Sioux or Dakota Indians,

in South Dakota, 1892, ratified, 28 Stat. 286 (1894), reprinted

in State’s App. 111.

South Dakota Enabling Act, § 10, 25 Stat. 676 (1889),

reprinted in App. 1.

South Dakota Constitution, Art. XXVVI, § 18,

reprinted in App. 1.

Legislative History and Negotiations, Ex. 605, S. Exec.

Doc. No. 27, 53 Cong., 2d Sess. (1894).

INTRODUCTION

Petitioner, State of South Dakota (“State”), has

petitioned that a writ of certiorari issue to review the judgment

and opinion of the Court of Appeals for the Eighth Circuit

entered in this matter on October 24, 1996. The Eighth Circuit

affirmed the ruling of the federal district court, which ruling

retained intact the boundaries of the Yankton Sioux Reservation

as established in the 1858 Treaty between the Yankton Sioux

Tribe and the United States.

Respondents Yankton Sioux Tribe and Darrell Drapeau

respectfully request that the Court deny the State of South

Dakota’s Petition for Writ of Certiorari.

STATEMENT OF THE CASE

A. Procedural History.

The Yankton Sioux Tribe, ef al (“Tribe”), brought an

2

injunction action in the United States District Court for the

District of South Dakota, Southern Division, against the

Southern Missouri Waste Management District (“District”),

seeking to enjoin the planned construction of a landfill on

privately owned land located within the boundaries of the

Yankton Sioux Reservation (“Reservation”). By agreement

with the State, the District brought in the State as a third party

defendant, enabling the State to challenge the existence of the

Reservation’s boundaries.

Following a five day trial, the district court ruled that the

boundaries of the Reservation were undiminished, pursuant to

the 1858 Treaty between the Tribe and the United States, 11

Stat. 743. The district court ruled that the terms of an 1892

surplus land sales agreement between the Tribe and the United

States government, ratified by Congress in 1894, 28 Stat. 286,

did not evince an intent by Congress to diminish, or to

disestablish, the Reservation. Yankton Sioux Tribe v. Southern

Missouri Waste Management District, 890 F Supp. 878 (D.S.D.

1995) reproduced in State’s Appendix (“State’s App.”) 66, 89.

Immediately following the trial, the district court granted the

State’s request for a stay of execution of its ruling. The stay

was later revoked on the Tribe’s motion due to an unstable law

enforcement situation on the Reservation which resulted from

the stay. The State applied for a stay directly to the court of

appeals, which was denied.

The State then appealed the district court’s ruling on the

merits to the Court of Appeals for the Eighth Circuit. The

Eighth Circuit, in a two to one decision, affirmed the trial court.

Yankton Sioux Tribe v. Southern Missouri Waste Management

District, 99 F.3d 1439 (8th Cir. 1996) reproduced in State’s

App. 1. The Eighth Circuit then denied the State’s request for

rehearing, as well its suggestion for a rehearing en banc. State’s

App. 98.

The decision of the trial court, as well as the affirmation

3

by the Eighth Circuit, centered on the savings clause in Article

XVIII of the 1894 statute, ratifying the 1892 surplus land sales

agreement. Agreement with the Yankton Sioux or Dakota

Indians, in South Dakota, 1892, ratified, 28 Stat. 286 (1894)

reprinted in State’s App. 111. Both the district court and the

court of appeals ruled that Congress intended that the

Reservation boundaries established by the 1858 Treaty were

maintained intact by the language of the savings clause. State’s

App. 27-29, 34, 82-84. Treaty with the Yankton Sioux, 1858,

ratified 1] Stat. 743 (1859), reprinted in State’s App. 99.

As a basis for its application for a Writ of Certiorari, the

State relies heavily upon the conflict set up by a recent South

Dakota Supreme Court decision. That decision repudiates the

Eighth Circuit’s finding that the Reservation’s boundaries

remain undiminished. See State v.Greger, 1997 S.D. 14 (1997)

reprinted at State’s App. 125. Further, the State relies on what

it terms, “cession and sum certain” language in the 1894 Act

that creates, in its words, “an almost insurmountable

presumption” of diminishment. The State also relies on dicta by

this Court in a 1914 case, Perrin v. U.S., 232 U.S. 478 (1914),

in which Justice Vandevanter made casual mention of, “.. .

lands formerly included in the Yankton Sioux Reservation . . .

.” The State has parlayed this brief mention into what it views

as a holding of diminishment by this Court. The State glosses

over the fact that in Perrin, the Court’s decision did not

investigate, analyze, or even consider the question of

diminishment.

B. Historical Background.

In 1858, the Yankton Sioux Tribe occupied in excess of

13 million acres of land in what is now the Dakotas, Nebraska,

and Minnesota. At that time, the United States government

negotiated a purchase of some 11 million acres from the Tribe.

4

The purchase and sale of the land was set out in the Treaty of

1858, 11 Stat. 743, between the Tribe and the government. The

Treaty guaranteed the Tribe peaceable possession of a newly

created reservation of some 400,000 acres located in what is

now southern Charles Mix County, South Dakota, along the

eastern bank of the Missouri River. The Treaty laid out a

precise metes and bounds description of the boundaries of the

new Reservation. 11 Stat. 743. A later survey indicated that,

in reality, the Reservation described in the Treaty comprised a

total of 430,195 acres. S. Exec. Doc. No. 27, 53rd Cong., 2d

Sess. at 5 (1894) (hereafter S.Doc. 27).

After passage of the General Allotment Act (Dawes

Act) in 1887, 24 Stat. 388, codified at 18 U.S.C. § 331 ef. seq.

the United States government forced upon the Tribe (as it did

on other tribes) the policy of allotting collectively owned Tribal

lands to individual Tribal members. When the United States

completed the allotment of acreages to Tribal members, there

remained unallotted approximately 200,000 acres of “surplus

lands." S. Doc. 27 at 5; Yankton Sioux Tribe v. United States,

224 Cl. Ct. 62, 623 F.2d 159 (1980).

By 1892, in response to pressure from non-Indian

settlers to open the newly allotted Reservation to settlement, the

United States sent a team of three Commissioners to the

Yankton Sioux Reservation to begin negotiations with the Tribe

for the sale of these surplus lands. $.Doc. 27 at 7-8.

Following lengthy negotiations with Tribal leaders, amid

allegations of outright bribery of Yankton Sioux Tribal

members by the Commissioners in order to obtain Tribal

approval for the sale, and in addition, to pressure to sell upon

members of the Tribe by religious missionaries, a sale

agreement was signed in 1892 between the Tribe and the United

States. Jd. at 35, 83-84, 95. The agreement was ratified by

Congress in 1894. 28 Stat. 286 (1894).

During the negotiations there was debate about the best

5

way to handle the purchase of the surplus lands. The Tribe

wanted an “appraisal and sale” method, whereby each parcel

would be appraised and sold separately to the highest bidder.

The government ultimately believed not only that this method

would be cumbersome and that some of the less desirable

parcels would remain unsold, but that another commission

would have to return later to negotiate for the sale of the unsold

parcels. /d at 12. The parties ultimately agreed upon the

government’s outright purchase of the surplus lands at a fixed

price per acre--for a total of $600,000. /d. at 13-14. The 1894

statute, 28 Stat. 286, included Article XVIII, a savings clause

vastly different from any other in all the surplus land Acts

drafted by the United States government. At the conclusion of

the trial of this action in 1995, the district court requested briefs

from all the parties to assist the Court in determining whether

savings clauses in other surplus land sales Acts contained

language as definite and as strong as that of Article XVIII.

Yankton Sioux Tribe, 890 F Supp. at 885, App. 81. None of the

parties could find similar language in any other surplus land

sales Acts.

Article XVIII states as follows:

Nothing in this agreement shall be construed to

abrogate the treaty of April 19, 1858, between the

Yankton Tribe of Sioux Indians and the United States.

And after the signing of this agreement and its

ratification by Congress, all provisions of said treaty of

April 19th, 1858, shall be in full force and effect, the

same as though this agreement had not been made, and

the said Yankton Indians shall continue to receive their

annuities under the said treaty of April 19, 1858.

28 Stat. 286. Both the district court and the court of appeals in

this case viewed Article XVIII as the anchor which held fast the

boundaries of the Yankton Sioux Reservation, and which

distinguished the Yankton surplus land sales act from other Acts

6

in which this Court, in past cases, has determined the

boundaries to be diminished. Not only was there no limiting

language in the clause, but the clause twice mandated that the

1858 Treaty should remain intact. The Tribe’s expert witness,

Professor Herbert Hoover, a professor of history at the

University of South Dakota, and a specialist in Yankton Sioux

Tribal history, testified at trial that the portion of Article XVIII

relating to annuities had its genesis in a fear by Tribal leaders

that the government would cut off their annuities as punishment

for any perceived sins of the Tribe, much as the government did

to one of the Minnesota Sioux Tribes in prior years. Trial

Transcript (“T”) at 62-70.

After close examination of the statute’s language as a

whole, and of the extensive legislative history and events near

the time of passage, a majority of the court of appeals

determined that Article XVIII indicated Congress’s intent to

retain the boundaries intact. Yankton Sioux Tribe, 99 F.3d at

1453-54, State’s App.31-33. Neither in the record of the

negotiations, nor in the legislative history does there appear any

manifestation of Congressional intent to diminish or to

disestablish the Reservation boundaries. /d.

The Treaty executed by the Tribe and the United States

in 1858, did, in fact, diminish the Yankton Sioux Reservation

from 13 million acres down to some 400,000 acres. However,

the new boundaries were clearly set out in that Treaty, which

described in metes and bounds the new boundaries of the newly

diminished reservation of 430,195 acres. See 11 Stat. 743. In

contrast, the 1894 statute contains neither an indication of any

new reservation boundaries, nor any diminishment of the 1858

boundaries. 28 Stat. 286.

C. Corrections of Misstatements in the Petition

In its Petition, the State selectively describes the

7

legislative history and historical events presented to the federal

courts. Space does not allow Respondents to correct every

misrepresentation of the historical record made by the State.

The Tribe invites the Court’s attention to the opinions of the

district court and the court of appeals in this action, and to the

actual documents contained in the parties’ appendices in order

to determine the accurate legislative history and historical

events relevant to this action. Much of the legislative history

referred to by the parties and by the lower courts is contained in

Senate Document No. 27, which appears in the record of the

trial. The opinions, both of the trial court and of the Eighth

Circuit, provide a complete analysis of the legislative history, as

well as evidence of historical events presented by the parties.

The State further makes misstatements in its assertion

that other land sales agreements between Indian tribes and the

government are “equally strong” as that between the Yankton

Sioux Tribe and the government. State’s Petition at 8-9, 19-20.

The parties provided the district court with separate briefs on

this issue alone, and neither the State nor the Tribe were able to

find any surplus land sales agreement that contained similar

language, or that contained language as strong, or with as much

force as the savings clause at issue here. Yankton Sioux Tribe,

State’s App. 16-17.

The Tribe also objects to the map referred to in the

State’s brief and located at State’s App. 159, as being new

material inserted by the State, not included in the record at

trial, which the State admits. See State’s Petition at 7, n.8.

Respondents respectfully request that the map not be considered

by this Court.

Finally, the Tribe takes issue with the States’ misreading

of the court of appeals decision, in which it stated that the court

“recognized [that] its decisions put the court of appeals in

conflict with prior decisions of the South Dakota Supreme

Court.” State’s Petition at 12. In actuality, the court of appeals

8

found that the issue of whether the Yankton Reservation was

diminished or disestablished had never been squarely litigated

and decided either in federal court or in state court in such a

manner that would provide full development of the issues, or a

full analysis required by the United States Supreme Court. The

court distinguished the prior federal and state decisions cited by

the State. Yankton Sioux Tribe, 99 F.3d at 1451, n. 18-19

(citations omitted), State’s App. at 25-26.

REASONS FOR DENYING THE WRIT

I.

THE PETITION FOR WRIT OF CERTIORARI IS

NOT APPROPRIATE IN THIS CASE BECAUSE

THE STATE ALLEGES ERRONEOUS FACTUAL

FINDINGS AND THE MISAPPLICATION OF A

PROPERLY STATED RULE OF LAW.

As a basis for its application for writ of certiorari, the

State claims that the court of appeals erred in failing to follow

the Court’s analytical structure of Hagen v. Utah, 510 U.S. 399

(1994) and other precedents. State’s Petition at 15. However,

a reading of the Eighth Circuit’s carefully thought out opinion

belies this allegation. The Eighth Circuit faithfully followed

this Court’s canons of construction and its analytical structure

as set out in Hagen. The State’s argument is nothing more than

a disagreement with the court of appeals’ interpretation of the

1894 statute, which, under Supreme Court Rule 10, is not to be

considered, and is inappropriate as a ground for granting an

application for a writ of certiorari.

Moreover, a writ of certiorari is not appropriate when

the alleged error consists of erroneous factual findings. See

Supreme Court Rule 10. The determination of whether

9

language in surplus land sales agreements either diminishes or

retains a reservation’s boundary is totally fact driven. Applying

the Hagen principles to the language existing in a variety of

different savings clauses will inevitably result in a different

outcome for each case. The State’s allegation that the court of

appeals’ opinion conflicts with this Court’s precedent is pure

and simple a disagreement with the court of appeal’s factual

findings and with its application of the proper rules of law under

Hagen. See State’s Petition at 15-23. The State asserts in its

Petition that the court of appeals erroneously applied the

evidence, including the language of the 1894 Act, the legislative

history, and historical record specific to this case. Jd. The State

argues that the language of the 1894 Yankton Act and the

historical record should be interpreted to mean _ that

diminishment was accomplished by the Act. /d. Further, the

State argues that the factual findings relative to the

jurisdictional history of the reservation and the application of

these facts were in error. /d. at 24-26. The State is arguing that

the court of appeals made erroneous factual findings and that it

misapplied the law. /d. at 15-28. The State’s Petition for Writ

of Certiorari is inappropriate and should be denied.

GRANTING OF CERTIORARI WILL ENCOURAGE

STATE COURTS TO IGNORE = PRINCIPLES OF

COMITY AND IGNORE FEDERAL DECISIONS

INTERPRETING ISSUES OF FEDERAL LAW.

The State asserts that this Court should grant the Writ of

Certiorari due to the conflict resulting from the recent South

Dakota Supreme Court’s decision in State v. Greger, 1997 S.D.

14(1997). However, it is important to note that the Tribe was

not a party to any level of the State v. Greger court proceedings.

10

“The State seeks to use Fred Greger’s criminal offense in

an opportunistic manner to persuade this Court to re-decide an

issue that has already been decided by two levels of federal

courts. The State seeks a second bite of the apple simply

because it does not like the outcome of the federal decisions. By

strategically and intentionally seeking a ruling in the State court

on a federal issue so as to create a conflict between the state and

federal courts, the state seeks to persuade this Court to review

an issue that has been extensively reviewed and decided.

Granting certiorari in this case will give the state exactly what

its strategy seeks: a second chance at this issue, despite the

inappropriateness of the state court’s decision which refuses to

defer to the federal courts on this issue of exclusive federal law.

As well, the decision in Greger completely ignores

Article VI of the United States Constitution, which provides:

This Constitution, and the laws of the United States

which shall be made in pursuance thereof, and all

treaties made or which shall be made, under the

authority of the United States, shall be the supreme

law of the land; and the judges in every state shall be

bound thereby, anything in the Constitution or laws of

any state to the contrary notwithstanding.

The Supremacy clause, along with Article I, §8 of the

United States Constitution, giving Congress plenary power over

Indian tribes, makes clear that the federal government is

supreme in dealing with Indian tribes. See Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 561 (1832). As an aspect of

Indian tribes’ inherent sovereignty and grant of authority to the

United States government, state interference with Indian tribes

is generally prohibited except to the extent Congress has granted

the state authority. See id. at 561-62. This policy of "leaving

Indians free from state jurisdiction and control is deeply rooted

in the Nation’s history.". McClanahan v. Arizona State Tax

Comm’n., 411 U.S. 164, 168 (1973). The State of South Dakota

11

recognized this policy as a condition in the South Dakota

Constitution and in its Enabling Act. See South Dakota

Constitution, Art. XX V1, §18; South Dakota Enabling Act §10,

25 Stat. 676 (February 22, 1889), reprinted in App. 1.

In its decision in State v. Greger, the South Dakota

Supreme Court completely ignores its own previous ruling in S/.

Cloud v. Leapley, 521 N.W.2d 118, at 122 (S.D. 1994), which

holds:

However, “with respect to what is essentially a federal

question, we are guided and bound by federal statutes

and decisions of the federal courts interpreting those

statutes.” (citations omitted).

Additionally, in St. Cloud, the South Dakota Supreme Court

cited the holding of Ex Parte Gurganus, 603 So.2d 903, 906

(Ala.1992), in which the Alabama Supreme Court stated:

Federal decisional law interpreting a federal statute ...

and delineating the rights and obligations thereunder

is binding on this Court under the Supremacy Clause

of Article VI of the United States Constitution .. . .

The South Dakota Supreme Court has failed to follow its

own policy of deferring to federal courts on matters of federal

law. The South Dakota Supreme Court has recognized that

"federal courts are the ultimate decision maker as to whether

feder2i, state or tribal courts have jurisdiction in a particular

Indian law case." State v. Daly, 454 N.W.2d 342, 344 (S.D.

1990). The South Dakota Supreme Court has even overruled its

own ruling in recognition of the federal court of appeal’s ruling

concerning state jurisdiction over Indians. See State v. Spotted

Horse, 462 N.W.2d 463, 467 (S.D. 1990), cert. denied, 500 U.S.

928 (1991). The South Dakota Supreme Court ignored its own

well established precedent for deferring to federal decisions in

matters of Indian law. In this case federal statutory provisions

are at issue, as well as the federal supremacy clause. Given the

federal trust relationship assumed by the federal government

12

toward Indian tribes, and the fact that federal courts decided this

issue of exclusive federal law prior to the decision by the State

Supreme Court, the state court was obligated to defer to the

federal interpretation of this issue.

It is important to realize that, although the State alleges

that the South Dakota Supreme Court has previously determined

that the Yankton Sioux Reservation was diminished by the 1894

Act, prior to Greger, the issues regarding diminishment were

never fully presented to the court. The court, in previous cases,

did not address the legislative history and surrounding

circumstances of the Act or the savings clause contained in

Article XVIII, but relied almost exclusively on the language of

Articles I and Il. See State v. Thompson, 335 N.W.2d 349 (S.D.

1984); Wood v. Jameson, 130 N.W.2d 95 (S.D. 1964). In

addition, the Tribe has never been a party to any case before the

state court which has squarely considered the issue of

diminishment in light of Article XVIII.

The Eighth Circuit recognized that the South Dakota

Supreme Court had never fully decided the issue of

diminishment, and had never before considered the savings

clause or the legislative history. Yankton Sioux Tribe, 99 F.3d

at 1451 n.19, State’s App. 26. The court of appeals further

recognized that other cases relied upon by the State did not

decide the issues of diminishment. /d at n.19. See Yankton

Sioux Tribe v. United States, 623 F.2d 159 (C1. Ct. 1980) (focus

of case was fair market value of unallotted land sold by tribe,

comments relating to diminishment were dicta); Weddell v.

Meierhenry, 636 F.2d 211 (8th Cir. 1980), cert. denied (1981)

(habeas relief requested, diminishment not litigated or raised by

the parties). Granting certiorari in this case, will, in effect,

encourage the state court to ignore the doctrine of comity in the

future as well. Comity concerns are heightened where, as here,

the South Dakota Supreme Court is asked by the State to revisit

already decided issues of federal law for the sole purpose of

13

creating a conflict with the federal courts.

As well, granting certiorari in this case inevitably will

encourage forum shopping. It will also encourage litigating

parties to persuade a state’s highest court to review issues

previously decided in federal courts in order to set up such a

conflict, needlessly upsetting previously settled areas of law,

and achieving jurisdictional clash. Therefore, the State’s

Petition should be denied.

THE STATE’S ARGUMENTS DO NOT SUPPORT THIS

COURT’S GRANTING OF A WRIT OF CERTIORARI.

The State relies heavily upon three arguments to

buttress its case in favor of granting certiorari in this matter:

(1) the opinion of the Eighth Circuit Court of Appeals

conflicts with this Court’s diminishment jurisprudence;

(2) a conflict was set up by the recent decision of the South

Dakota Supreme Court; and (3) this case raises issues of

national importance. None of these arguments support this

Court’s granting of a writ of certiorari in this case.

A. The court of appeals decision does not conflict

with this court’s rulings on diminishment.

This Court, in Hagen v. Utah, 114 8.Ct. 958 (1994),

articulated its most current standard for deciding whether or

not surplus land sales acts have diminished or disestablished

reservation boundaries. This Court stated:

The effect of any given surplus land Act depends on

the language of the Act and the circumstances

underlying its passage. In determining whether a

reservation has been diminished, [o]ur precedents in

14

the area have established a fairly clean analytical

structure, directing us to look to three factors. The

most probative of diminishment is, of course, the

statutory language used to open the Indian lands. We

have also considered the historical context surrounding

the passage of the surplus land Acts, although we have

been careful to distinguish between evidence of the

contemporaneous understanding of the particular Act

and matters occurring subsequent to the Act’s passage.

Finally, on a more pragmatic level, we have

recognized that who actually moved onto opened

reservation lands is also relevant to deciding whether

a surplus land Act diminished a reservation.

Throughout the inquiry, we resolve any ambiguities in

favor of the Indians, and we will not lightly find

diminishment. Statutes are to be construed liberally in

favor of the Indians, with ambiguous provisions

interpreted to their benefit. (Citations omitted).

Hagen 114 S.Ct. at 965-966.

In reaching its decision that the Tribe’s boundaries were

not diminished or disestablished, the court of appeals faithfully

followed this Court’s canons of construction.

First of all, understanding that the language of the statute

is the “most probative” factor in determining Congressional

intent, the court of appeals analyzed in detail the pertinent

sections of the 1894 statute effectuating the agreement as a

whole. The majority compared savings clauses in other surplus

land acts and found that each contained limiting words which

completely distinguish all other savings clauses trom the

Yankton Sioux agreement. Yankton Sioux Tribe, 99 F.3d at

1447. For example, some of the clauses spoke of treaty

provisions “not inconsistent” with the other provisions of the

agreement in question and are distinguishable. See e.g., Oregon

Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S.

ee

15

753, 760-61 (1985) (“nothing in this agreement shall be

construed to deprive [the tribe] of any benefits to which they are

entitled under existing treaties not inconsistent with the

provisions of this agreement”); Rosebud Sioux Tribe v. Kneip,

430 U.S. 584, 623 (1977) (benefits of existing treaties and

agreements continue unless “inconsistent with the provisions of

this agreement”); United States v. Southern Ute Tribe or Band

of Indians, 402 U.S. 159, 162 (1971) (all treaty provisions “not

altered by this agreement are hereby continued in full force and

effect”); Dick v. United States, 208 U.S. 340, 352 (1908) (treaty

provisions “not inconsistent with the provisions of this

agreement are hereby continued in full force and effect”).

Article XVIII in the Yankton Sioux agreement contains

no such limiting language. In the court of appeals’ analysis,

reading Article XVIII together with Articles I & Il, the savings

clause gives all of the parts of the agreement both consistency

and force, stating that the unusually expansive language of

Article XVIII “suggests that other sections should be read

narrowly to minimize any conflict with the 1858 Treaty.”

Yankton Sioux Tribe, 99 F.3d at 1447.

The State, asserting a conflict with the 1858 Treaty,

argues for a literal reading of Article XVIII, which, if read

literally, would prevent the Tribe from selling any of the land to

the government or to anyone else. However, acceding to the

State’s theory would have also prevented the State from

exercising jurisdiction over parts of the Reservation, as it boasts

of having done ever since 1894. The State’s exercise of

jurisdiction over parts of the Reservation has been patently

illegal from its inception, primarily because of South Dakota’s

Enabling Act §10, 25 Stat. 676 (February 22, 1889), reprinted

in App. | and because of South Dakota’s Constitution, S.D.

Const. Art. XXVVI, §18, reprinted in App. | each of which

forever foreswore any claim of jurisdiction over Indian lands.

16

In response to the State’s argument that Article XVIII

relates only to the continuation of annuities, the majority of the

court of appeals panel understood that Congress knew how to

limit the reach of the annuities provision based on previous

Congressional actions, but it did not limit such reach, leading

to the conclusion that the Article covers much more than

annuities. Yankton Sioux Tribe. 99 F.3d at 1448, State’s App.

18-19.

Moreover, beyond its clear holding that Congress

intended no diminishment in this case, the court of appeals

majority concluded that, if an ambiguity exists in the language

of the 1894 statute, then, according to this Court’s direction in

Hagen, any such ambiguity must be resolved in favor of the

Indians. /d. at 1449, State’s App. 19. See Hagen, 510 U.S. at

410-11.

However, what is really at issue here, despite the State’s

rambling effort to create a distinction between this Court's

rulings of law and that of the court of appeals, is simply a

factual interpretation by the federal courts that the State does

not like. In asking this Court to resolve a factual dispute, the

State goes far beyond any rationale for the granting of a Writ of

Certiorari. See Supreme Court Rule 10. The State is, in

essence, arguing that the court of appeals erred in its factual

findings and misapplied the Court’s canons of construction and

precedent. These arguments are not appropriate for this Court's

review. /d.

B. “Cession and sum certain” Language

In The Agreement Is Not Dispositive.

The key question identified by the Eighth Circuit in its

interpretation of the 1894 statute is, “whether Congress intended

that the tribe’s governmental authority be transferred with the

land sale.” This is, in reality, the heart of the diminishment or

17

non-diminishment question.

The State’s heavy reliance on cession and sum certain

language becomes misplaced when one considers this Court's

holdings with respect to the probative value of a surplus land

statute. Under this Court's canons of construction, if there is

no clear direction concerning congressional intent from any part

of the statute, the Courts then are directed to use a juridical

ouija board to plumb the intent of Congress. If there is no

savings clause, as there is in the Yankton Agreement, then other

language, such as cession and sum certain, would come under

consideration. However, where there is strong language present

in the statute clearly indicating congressional intent, as there is

in Article XVIII, and especially where it is read together with

Articles I & II, the ouija board becomes totally unnecessary.

There is no need for the courts to play the conjecture game by

turning to the vagueness of cession and sum certain language.

Secondly, this Court’s inquiry into the questions of de

facto changes in demography of the Reservation diminishes in

importance when there exists a clear intent by Congress to

preserve the Reservation’s boundaries, as Article X ‘VIII does in

this case. Even without the savings clause, the fact that non-

Indian settlers purchase surplus lands should be of minimal

shock value, especially when one considers that the sole

purpose of the sale and purchase of surplus lands was to bring

non-Indian settlers into the reservation. The government

believed that the allotment policy would benefit the Indians by

forcing individual ownership, by enforcing individual

responsibility, by requiring the Indians to abandon communal

notions of property and social organization, and encouraging

them to learn the techniques of productive farming from their

new non-Indian neighbors. Hagen, 510 at 402-04. See also S.

Doc. 27.

As the federal courts point out, the State’s reliance on

the fact that it began exercising jurisdiction over these areas as

18

early as 1895 is not dispositive and does not confirm the

appropriateness or the legality of the exercise of state

jurisdiction, nor is it inconsistent with the existence of shared

jurisdiction by Tribal, state, and federal governments. Yankton

Sioux Tribe, 99 F.3d at 1453; 890 F.Supp. at 887, State’s App.

33, 87. The federal courts here recognized that the evidence

was simply inconclusive and did not support de facto

diminishment. /d.

Cc. Liquor Provisions and Common School Language

Do Not Indicate An Intent to Diminish.

The contemporary discussion on the statute by the

Commissioners indicates that the Tribal leaders wanted to make

certain that, if the surplus lands were sold, liquor would not be

brought into the reservation by virtue of opening it up to white

settlement. In the words of the government’s Commissioners:

... It is certainly to the credit of these people that they

demand that this condition [Article XVII] should be

put into the agreement, and we hope that Congress will

fix a penalty for the violation of this provision which

will make it most effective in preventing the

introduction of intoxicants within the limits of the

reservation. (Emphasis added). S. Doc. 27 at 2/.

The court of appeals concluded that the liquor provision

was not inconsistent with the intent to preserve the 1858

boundaries. The court found this case distinguishable from

Rosebud, 430 U.S. at 613 in which the court found the liquor

clause gave rise to an inference of diminishment. Yankton

Sioux Tribe, 99 F.2d at 1449-50; State’s App. 23-25. In this

case, the court found that the language was not surplusage as in

Rosebud, because the negotiations between the Yankton Sioux

Tribe and the government were conducted shortly after the 1892

liquor act, and there was no evidence that either party was aware

19

of it at the time the 1892 Agreement was negotiated. Further,

the liquor statute would have ceased to apply if the Reservation

were eliminated in the future, but the liquor provision the Tribe

insisted on in the agreement would remain. Therefore, the court

of appeals correctly found that the liquor provision did not

demonstrate an intent to diminish. /d

The State similarly attempts to apply the rationale of

Rosebud to this case, alleging that the language of the 1892

Yankton Agreement reserving land for common school

purposes indicated an intent to diminish the Reservation.

Congress added a provision to the 1892 Yankton Agreement

that “the sixteenth and thirty-sixth section in each Congressional

township . . . shall be reserved for common-school purposes and

be subject to the laws of the State of South Dakota.” However,

as the court of appeals recognized, Rosebud does not have force

in this case because the 1894 Act makes the common school

sections subject to state law and if Congress intended to

diminish the Reservation, the common school sections would

have been subject to the laws of the state in any event, and the

grant of jurisdiction to the State of South Dakota would have

been unnecessary. /d. at 1450. The court of appeals determined

that the common school language was consistent with the

conclusion that Congress desired to ensure that the

“infrastructure would exist for common schools for all future

residents into the assimilated area.” Jd The State’s reliance on

these provisions is misplaced as they do not, in the Eighth

Circuit’s analysis, demonstrate an intent to diminish the

Yankton Sioux Reservation.

IV.

THE COURT SHOULD DENY THE WRIT OF

CERTIORARI BECAUSE THE STATE IS BARRED

FROM RELITIGATING THE BOUNDARY 'SSUE AND

20

BECAUSE THE TRIBE WAS NOT A PARTY AT THE

STATE PROCEEDING.

A. The State is barred from relitigating the boundary

issue under the doctrine of collateral estoppel.

The doctrine of collateral estoppel does not bar a cause

of action, but it bars relitigation of an essential fact or issue

involved in an earlier suit from a court of competent

jurisdiction. As this Court has explained:

A fundamental precept of common-law adjudication,

embodied in the related doctrines of collateral estoppel

and res judicata, is that a "right, question or fact

distinctly put in issue and directly determined by a court

of competent jurisdiction . . . cannot be disputed in a

subsequent suit between the same parties or their

privities ...." Southern Pacific R. Co. v. United

States, 168 U.S. 1, 48-49, [18 S.Ct. 18, 27, 42 L.Ed.

355] (1897).

Montana vy. United States, 440 U.S. 147, 153 (1979). Under

collateral estoppel, "once an issue is actually and necessarily

determined by a court of competent jurisdiction, that

determination is conclusive in subsequent suits based on a

different cause of action involving a party to the prior litigation

.." Id. (citations omitted). The Court elaborates on the

policy underlying this doctrine:

To preclude parties from contesting matters that they

have had a full and fair opportunity to litigate protects

their adversaries from the expense and vexation

attending multiple lawsuits, conserves judicial

resources, and fosters reliance on judicial action by

minimizing the possibility of inconsistent decisions.

Montana, 440 U.S. at 153-54 (footnote omitted). This Court

has further explained:

Public policy dictates that there be an end to litigation;

21

~

that those who have contested an issue shall be bound

by the result of that contest, and that matters once tried

shall be considered forever settled as between the

parties.

Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401

(1981) (citations omitted). See also Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 326 (1979); Blonder-Tongue

Laboratories, Inc. v. University of Illinois Foundation, 402 U.S.

313, 328-29 (1971).

Federal courts apply a four-part test to determine

whether collateral estoppel applies: (1) was the issue decided

in a prior adjudication identical with the one presented in the

action in question; (2) was there a final judgment on the merits;

(3) was the party against whom the plea was asserted a party or

in privity with a party to the prior adjudication; and (4) did the

party against whom the plea is asserted have a full and fair

opportunity to litigate the issue in the prior adjudication.

Montana, 440 U.S. at 1147-53; Oldham vy. Pritchett, 599 F.2d

274 (8th Cir. 1979).

In this case, the issue of whether the boundaries of the

Yankton Sioux Reservation remain intact was clearly the

identical issue decided by the federal courts but redecided by the

state court in State v. Greger. There was a final judgment on

the merits in both federal actions. The State has never claimed

that it did not have a full and fair opportunity to litigate the

boundary issue at any proceeding, and given the voluminous

record, the State cannot make such a claim. Thus, the

requirements for the invocation of the doctrine of collateral

estoppel are all present, and the state should be barred from

attempting to relitigate the issue of the Yankton Sioux

Reservation boundaries.

The fact that the Tribe was not a party to the state court

State v. Greger action does not preclude the use of collateral

estoppel. This Court has recognized that nonmutual offensive

collateral estoppel can be used so that a nonparty to a prior

22

action can use collateral estoppel in a later action against a party

to the prior action. See Parklane Hosiery, 439 U.S. 322 (1979).

In United States v. Mendoza, 464 U.S. 154, 162 (1984) the

Court limited the use of collateral estoppel against the United

States Government.

There are very few cases that apply Mendoza to prohibit

the use of collateral estoppel against a state government. In

fact, the Eleventh Circuit is the only federal decision to apply

the decision to prevent collateral estoppel against a state

government, Hercules Carriers, Inc. v. Claimant State of

Florida, 768 F.2d 1558 (1985), and other circuit courts have

failed to follow this decision. See e.g., Benjamin v. Coughlin,

708 F.Supp. 570 (S.D.N.Y. 1989), aff'd 905 F.2d 571 (2nd Cir.

1990).

Mendoza involved allegations of a violation of the

United States Constitution. The Court expressed the policy that

the rule should apply only against the United States Government

on issues that involve public issues affecting citizens throughout

the land. The Court said the proscriptions of the United States

Constitution are generally directed against the government and

often arise in a case in which the government is a party. Thus,

the Court explained, the government is more likely than a

private party to be involved in lawsuits against different parties

involving the same issue, and a rule allowing collateral estoppel

against the government would thwart the development of

important legal questions. /d. at 160.

Such policy considerations do not apply in this case.

Here, the issue arises in a fact-specific dispute involving

specific federal statutes geared to one site only, including

federal conduct applied to a remote and relatively isolated area

in South Dakota. Collateral estoppel is available against the

State of South Dakota in this case, unlike in Mendoza in which

the Court limited its ruling to the "issues such as those involved

in this case." Mendoza, 464 U.S. at 162.

None of the exceptions to the rule of collateral estoppel

23

are available in this case. The two most important exceptions

are whether the controlling facts have changed significantly

since the first judgment, and whether the controlling legal

principles have changed significantly since the first judgment.

Montana, 440 U.S. at 155. The facts necessary to decide the

boundary issue have remained the same throughout the federal

actions and the state court action. The opinions reveal that the

courts considered virtually the same evidence. The same

controlling legal principles are applied by both the state court

and the federal courts. No new authority has since emerged.

The doctrine of collateral estoppel is no less meaningful

in the context of a case involving the diminishment of an Indian

reservation, and in fact has been applied in cases involving this

issue. See White Earth Band of Chippewa Indians v.

Alexander, 683 F.2d 1129 (8th Cir. 1982), cert. denied sub.

nom. Counties of Mahnomen and Clearwater, Minnesota v.

White Earth Band of Chippewa Indians and Alexander, 459

U.S. 1070 (1982).

The State’s allegations of the boundary issue as one of

substantial public importance is not enough to give the State

carte blanche to disregard another court’s judgment altogether

-. so that ii may relitigate the same issue in another forum. The

State should be barred from again seeking review of the

boundary issue. See also Restatement (Second) of Judgments

§ 28, comment b (1982) (it is not necessary to determine

whether the issue is one of fact or law for issue preclusion, it is

an unnecessary burden on the courts to allow repeated litigation

of the same issue).

This is the first opportunity for the Tribe to assert

collateral estoppel against the State. The Tribe was not a party

to the proceedings in State v. Greger at any stage and could not

have pressed the issue below. This Court’s review of the

boundary issue in this case would give credibility to the state

court decision which has exceeded its authority by ignoring the

supremacy clause, and by refusing to defer to the federal courts

oa

on this exclusive issue of federal law. Review of this case

would send a message to state courts that they are free to re-

decide federal issues whenever they do not like the outcome

decided by the federal courts. The State should be estopped

from seeking yet another review of the boundary issue in this

case.

B. The Tribe Is Not Bound By The State Supreme

Court Decision Because It Was Not A Party To

The Proceedings.

This Court has ruled that a sovereign is not bound by a

decision purporting to resolve a boundary dispute affecting that

sovereign when the sovereign was not a party to the

proceedings. Georgia v. South Carolina, 497 U.S. 376 (1990).

Thus, the Tribe, which was never a party to the proceedings in

State v. Greger, is not bound by the South Dakota Supreme

Court’s interpretation of the issue, and in effect, there really is

no conflict. The State, on the other hand, was a party to the

proceedings in the federal court actions and should be bound by

the federal decisions in this case.

Although the State may argue that this Court has decided

cases involving the boundaries of an Indian reservation in cases

in which the tribe was not a party, none of these cases involved

relitigation of a reservation boundary issue directly involving

the affected tribal, state, and local governments as parties. See

e.g., Solem, 464 U.S. 463; DeCoteau, 420 U.S. 425; Mattz v.

Arnett, 412 U.S. 481 (1973).

It is inequitable to hold a party bound by a decision in

which it was not even a party, and had no opportunity to be

heard before the court, especially in view of the fact that the

same party in this case, the State, had litigated precisely the

same issue in a different forum and is now seeking relitigation

of the issue because it did not like the outcome in the federal

system. This forum shopping should be discouraged.

25

CONCLUSION

For the reasons discussed above, the Tribe respectfully

requests that this Court deny the State's Petition for Writ of

Certiorari.

Respectfully submitted,

JAMES G. ABOUREZK

Counsel of Record

BOBBIE J. RASMUSSON

Abourezk Law Offices, P.C.

P.O. Box 1164

Sioux Falls, South Dakota 57101-1164

Counsel for Respondents

Tel: (605) 334-8402

Fax: (605) 334-9404

App. i

South Dakota Enabling Act, § 10,

A ooo cc cvewevhcksisess App. 1

App. |

THE ENABLING ACT

(Act of February 22, 1889, Ch. 180, 25 Statutes at Large 676.)

§10. That upon the admission of each of said states into the

union, sections numbered sixteen and thirty-six in every township of

said proposed states, and where such sections, or any parts thereof, have

been sold or otherwise disposed of by or under the authority of any

action of Congress, other lands equivalent thereto, in legal subdivisions

of not less than one-quarter section, and as contiguous as may be to the

section in lieu of which the same is taken, are hereby granted to said

states for the support of common schools, such indemnity lands to be

selected within said states in such manner as the Legislature may

provide, with approval of the secretary of the interior, provided, that the

sixteenth and thirty-sixth sections embraced in permanent reservations

for national purposes shall not, at any time, be subject to the grant nor

to the indemnity provisions of this act, nor shall any lands embraced in

Indian, military or other reservations of any character, be subject to the

grants or to the indemnity provisions of this act until the reservation

shall have been extinguished and such lands be restored to, and become

a part of, the public domain.

CONSTITUTION OF SOUTH DAKOTA

(Adopted October 1, 1889; yeas, 70,131; nays, 3,267.)

§ 18. Freedom of religion -- Public lands -- Indian lands

-- Uniformity of taxation -- Territorial debt -- Public schools --

Federal reservations -- Irrevocability.

That we, the people of the state of South Dakota do ordain:

First. That perfect toleration of religious sentiment shall be

secured, and that no inhabitant of this state shall ever be molested in

person or property on account of his or her mode of religious worship.

Second. That we, the people inhabiting the state of South

Dakota, do agree and declare, that we forever disclaim all right and title

to the unappropriated public lands lying within the boundaries of South

App. 2

Dakota, and to all lands lying within said limits owned or held by any

Indian or Indian tribes, and that until the title thereto shall have been

extinguished by the United States the same shall be and remain subject

to the disposition of the United States, and said Indian lands shall

remain under the absolute jurisdiction and control of the Congress of the

United States; that the lands belonging to citizens of the United States

residing without the said state, shall never be taxed at a higher rate than

the lands belonging to residents of this state. That no taxes shall be

imposed by the state of South Dakota on lands or property therein

belonging to or which may hereafter be purchased by the United States,

or reserved for its use. But nothing herein shall preclude the state of

South Dakota from taxing as other lands are taxed any lands owned or

held by any Indian who has severed his tribal relation and has obtained

from the United States, or from any person a title thereto by patent or

other grant save and except such lands as have been, or may be granted

to any Indian or Indians under any act of Congress containing a

provision exempting the lands thus granted from taxation, all such lands

which may have been exempted by any grant or law of the United

States, shall remain exempt to the extent, and as prescribed by such act

of Congress.

Third. That the state of South Dakota shall assume and pay

that portion of the debts and liabilities of the territory of Dakota as

provided in this Constitution.

Fourth. That provision shall be made for the establishment and

maintenance of systems of public schools, which shall be open to all the

children of this state, and free from sectarian control.

Fifth. That jurisdiction is ceded to the United States over the

military reservations of Fort Meade, Fort Randall and Fort Sully,

heretofore declared by the president of the United States: provided legal

process, civil and criminal, of this state shall extend over such

reservations, in all cases of which exclusive jurisdiction is not vested in

the United States, or of crimes not committed within the limits of such

reservations.

These ordinances shall be irrevocable without the consent of the

United States, and also the people of the said state of South Dakota,

expressed by their legislative assembly.