Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

MOTION FILED in

MAY - 7 1997, No. 95-1581 (2

In The

Supreme Court of the United States

October Term, 1996

+

STATE OF SOUTH DAKOTA,

Petitioner,

YANKTON SIOUX TRIBE, a federally recognized

tribe of Indians, and its individual members;

DARRELL E. DRAPEAU, individually, a member

of the Yankton Sioux Tribe,

Respondents,

and

SOUTHERN MISSOURI WASTE MANAGEMENT

DISTRICT, a nonprofit corporation,

Respondent.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

>

MOTION TO FILE AMICUS CURIAE BRIEF AND

BRIEF OF THE MONTANA ASSOCIATION OF

COUNTIES FOR THE RESERVATION COUNTIES

IN SUPPORT OF PETITIONER’S PETITION

FOR WRIT OF CERTIORARI

¢

THANE P. JOHNSON

Werner, Epstein & JOHNSON, P.L.L.C.

Attorneys at Law

14 E. Main, P. O. Box 428

Cut Bank, MT 59427-0428

(406) 873-2277

Counsel for Montana Association

of Counties — Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 34. 2831

MOTION TO FILE AMICUS CURIAE BRIEF BY

MONTANA ASSOCIATION OF COUNTIES (MACO)

IN SUPPORT OF PETITIONER’S PETITION

FOR WRIT OF CERTIORARI

Comes now the Montana Association of Counties

(hereinafter MACO) and respectfully moves this Cot rt

for leave to file an Amicus Curiae brief in support of

Petitioner’s Petition for Writ of Certiorari. MACO makes

the aforementioned motion pursuant to Rule 37 of United

States Supreme Court Rules.

MACO represents all of the Counties of Montana.

Montana has seven federally recognized reservations. At

least 20 of the 56 counties in Montana either border a

reservation or have land lying within a reservation.

Five of the seven reservations were the subject of

surplus land acts similar to the 1894 Yankton Sioux Act.

Only two of the five Acts have been litigated in the

Courts, and one of these two involved an arguably

incomplete decision. The remaining three reservations

have not faced diminishment litigation. The question of

whether diminishment occurred on the remaining three

or four reservations is of extreme importance to the coun-

ties that either encompass or border the reservations. The

question of reservation status affects the extent to which

Montana and the impacted counties may exercise civil

and criminal jurisdiction. Montana and its counties rely

on the precedents established by the Eighth Circuit and

this Court in determining their jurisdictional role.

MACO is familiar with issues in Indian law. MACO

recently sponsored an Amicus Curiae Brief in the case of

Montana, et al. v. United States Environmental Protection

Agency, C.A. No. 96-35508 before the Ninth Circuit Cour;

of Appeals. This case directly addresses the issue of triba|

jurisdiction over non-Indians and non-members. Because

MACO is familiar with the principles of Indian law, it

believes that it can provide a fresh outlook and argument

to the issues before this Court in the Yankton Sioux Tribe

case.

Counsel for MACO has contacted counsel for State of

South Dakota and Southern Missouri Waste Management

District and both have consented to the filing of this brief.

A copy of said consent is provided.

Counsel for MACO has contacted counsel for Yank-

ton Sioux Tribe but was unable to obtain their written

consent.

Dated this 7th day of May, 1997.

Werner, Epstein & JOHNSON

THANE P. JOHNSON

Attorney for MACO

i

QUESTION PRESENTED

WHETHER THE YANKTON SIOUX RESERVATION HAS

BEEN DIMINISHED BY VIRTUE OF AN 1894 ACT

ADOPTING A “CESSION AND SUM CERTAIN” AGREE-

MENT BETWEEN THE YANKTON SIOUX TRIBE AND

THE UNITED STATES AND BY VIRTUE OF ITS CEN-

TURY LONG TREATMENT AS DIMINISHED?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .......ccccccccccccccccces i

INTEREST OF THE AMICI MONTANA ASSOCIA-

TEES GF QUR Ree os cece ccccedccccccavencens 1

STATEMENT OF THE CASE................-0-445. 1

SUMMARY OF THE ARGUMENT ................. 2

I. THIS COURT SHOULD ISSUE A WRIT OF CER-

TIORARI WHEN THE EIGHT CIRCUIT FAILED

TO USE THIS COURT’S PRESUMPTION LEAV-

ING THE QUESTION OF JURISDICTION IN

ALL AREAS BORDERING SURPLUS LAND

ACT RESERVATIONS IN DISARRAY........... 3

A. The Eighth Circuit erred in failing to apply

the statutory presumption ................. 4

B. Reaffirming the statutory presumption will

lead to predictability making this case of

extreme national importance ............... 5

C. Failure to use the presumption conflict’s

with this Court’s prior diminishment deci-

GTB, 66d cccccccccddccvceweabocccsconccess 10

Il. THE COURT OF APPEALS ERRED IN FAILING

TO CONSIDER THE JURISDICTIONAL

ASSUMPTIONS AND FUTURE PROBLEMS AS

A PART OF THE SURROUNDING CIRCUM-

DEERME o cccesivoccterctentdscenvetbasdevass. 12

A. The Court of “my erred in failing to give

any weight to the jurisdiction assumptions

of the State and the Tribe ................. 12

B. The Court of Appeals should have consid-

ered the jurisdictional effect of a finding of

no diminishment ...............00eeeeeeees 15

CEPR foes codccccccrssersséscnevaruesseces 18

iii

TABLE OF AUTHORITIES

Cases

Agri West v. Koyama Farms, Inc., 933 P.2d 808 (1997) .... 17

Brendale v. Yakima Indian Nation, 492 U.S. 408

NE id ebnbevduhe chuunwece vetdbisudededescbeccccce 16

Concerned Landowners Assoc., Inc. v. Blackfeet Tribe,

CV-95-124-GF-PGH (Sept. 12, 1996)................ 17

Confederated Salish Kootenai Tribes, Etc. v. Namen,

ee ee Pe Cee Get actives ceiccvccsvcdcx 7,8

DeCoteau v. District County Court, 420 U.S. 446

SN 60560045 Hdnneddscuheenedeubeos bs0e see wses 4, 10

Duncan Energy v. Three Affiliated Tribes, 27 F.3d

Sn ID I i id a ie 16

Hagen v. Utah, 510 U.S. 399 (1994) ...........0..0.... 3

Hawkins v. Crist, No. CV-76-99-BLG (D.Mont. Jan-

ST We SECA sdncadndedeve Uke eSccvedeic bes 7, 12

Hinshaw v. Mahler, 42 F.2d 1178 (9th Cir. 1994) ...... 17

Mattz v. Arnett, 412 U.S. 481 (1973) ................. 12

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) .... 16

Montana v. United States, 450 U.S. 544, 101 S.Ct.

ae ae 3, 7, 15, 16, 19

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

peudwawdedecddededuchtetatatiehtiiedetes 10, 11, 12, 13

Seymour v. Superintendent, 368 U.S. 355 (1962) ..... 4, 10

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

State of Montana v. United States, CV-95-56-M-CCL

EE CD. CU w wh seeks ewhidicbetnceeil caecacccecee 17

iv -

TABLE OF AUTHORITIES - Continued

Page

Strate v. A-1 Contractors, et al., U.S.W.L. 202022

Sc nbn cmecconnhesdesss cncuedesévonnnioakes tesa 17

United States v. Wheeler, 435 U.S. 313 (1978) ......... 15

Williams v. Lee, 358 U.S. 217 (1959). ..... 2.2.6. cc eeee 16

MISCELLANEOUS:

17 Cong. Rec. 103, 1633 (1886)... ..... 6.660. e eee ees 6

18 U.S.C. Section 1151(a) (1982 ed.) .............64.. 13

24 Stat. 388 (1887) — General Allotment Act........ 2, 6

SF Be TL OK | errr rere eee 7

BD Bae. Fe Goce bbb cccccecveccsconccctesivccens 8

29 Stat. 353 (1896) App. 4 .... 2.2... cece ence eee ees 8

33 Stat. 302 (1904) App. 5 .... 6... eee eee eee ees 8

33 Stat. 352 (1904) App. 2 .... 2.6... c cece eee eee eens 7

Ff Se Ff, TIT TTTTLIT TTT rere ee 8

SE Bh, BBs oie kc tbnedignccdiecgiccesnvvecscser 10

33 U.S.C. Section 1313 - Clean Water Aad... .cccceess 17

eS £ SF. RR OTTTIITI TT rrr iyeere 5

F. Cohen, Handbook Federal Indian Law 127-134

EE ME ic ciubcsenneebesasdenncneass deowbeccdeoe 6

Rosebud Sioux Act of 1904 ............6. 666 c eee 9, 10

United States Court of Appeals, Eighth Circuit

EE Ty POU 5 csesdn tdccdcconsécsdeddsdawentes 1, 13

1

INTEREST OF THE AMICI

MONTANA ASSOCIATION OF COUNTIES

The Montana Association of Counties (hereinafter

MACO) represents all of the Counties in Montana. Mon-

tana has 7 federally recognized reservations. At least 20

of the 56 counties in Montana either border a reservation

or have land lying within a reservation.

Five of the seven reservations were the subject of

surplus land statutes similar to the one at issue in this

case. At least 14 counties either encompass or border

these reservations. The issue of whether those areas con-

tinue as reservations today is of extreme importance to

the 14 counties directly affected by the reservations. The

question of reservation status affects the extent to which

Montana and the 14 political subdivisions may exercise

criminal and civil jurisdiction within a reservation. A

decision by this Court affecting the reservation bound-

aries also poses a major impact to the extent the 14

counties can tax.

Montana and the 14 counties impacted by their

locality to reservations, rely on the precedents established

by the Eighth Circuit Court of Appeals and this Court in

determining their future jurisdictional role. A decision by

this Court will hopefully link other precedents involving

disestablishment and diminishment into a predictable

rule for Montana and the 14 counties.

S

STATEMENT OF THE CASE

Amici curiae adopt the Statement of the Case set

forth in the Petition for a Writ of Certiorari.

°

SUMMARY OF THE ARGUMENT

This case encompasses an issue of extreme impor-

tance to the Western States of the United States. In the

late 1800’s and early 1900’s, Congress passed several

Surplus Land Acts to effectuate the General Allotment

Act of 1887. A substantial majority of the Indian reserva-

tions in the West felt the impact of the Surplus Land Acts.

Many of the States with reservations subject to the Acts,

are looking to this decision for guidance.

The Eighth Circuit’s decision has left this Court's

diminishment decisions in disarray. The Eighth Circuit

failed to follow the statutory presumption created by this

Court's decision in Solem v. Bartlett, 465 U.S. 463, 470-471,

104 S.Ct. 1161, 1166 (1984).

This Court should accept Petitioner’s Writ of Cer-

tiorari in order to reaffirm the statutory presumption. The

Western states and the local governments affected by the

Surplus Land Acts require predictability in order to make

future decisions regarding construction, services and tax-

ation. The presumption provides this predictability.

The Eighth Circuit’s decision ignoring the presump-

tion conflicts with this Court’s prior diminishment deci-

sions. Prior decisions containing the cession language

and an unconditional commitment to compensate lead

this Court to find diminishment. The Yankton Sioux Act

of 1894 also contained cession language and an uncondi-

tional commitment to compensate the Tribe. The Eighth

Circuit erred in failing to follow this Court’s decisions.

The Court of Appeals also erred when it failed to give

any weight to the jurisdictional history and assumptions of

South Dakota, its local governments and the Yankton Sioux.

The State exercised civil and criminal jurisdiction over the

entire area of the 1858 Treaty. The Tribe, however, declined

“until recently” to exercise any authority over the surplus

land. South Dakota and the local governments affected by

the Act have invested substantial resources, services and

money in the area. The Court of Appeals should have given

the State’s jurisdictional assumption and expectations sub-

stantial weight.

Finally, the Court of Appeals should have considered

the future jurisdictional problems when it found no-

diminishment. A no-diminishment decision, creates a

multitude of issues for courts to decide under the Mon-

tana v. United States, 450 U.S. 544 (1981) test. These issues

make this case one of extreme national importance. This

Court should grant Petitioner’s Writ of Certiorari.

I. THIS COURT SHOULD ISSUE A WRIT OF CER-

TIORARI WHEN THE EIGHTH CIRCUIT FAILED

TO USE THIS COURT’S PRESUMPTION LEAVING

THE QUESTION OF JURISDICTION IN ALL

AREAS BORDERING SURPLUS LAND ACT RES-

ERVATIONS IN DISARRAY.

This Court examines the effects of Surplus Land Acts

using a three factor test. Hagen v. Utah, 510 U.S. 399, 409

(1994). First the Court examines the statutory language of

the Surplus Act. Second, the court considers the historical

context surrounding the passage of the Act. Finally, the

Court pragmatically asks who moved into the opened

area. Id.

The most probative evidence of diminishment stems

from the statutory language itself. Hagen v. Utah, supra.

Congress must clearly state its intent to change bound-

aries before making a finding of diminishment. Solem v.

Bartlett, 465 U.S. 463, 470-471 (1984). In DeCoteau v. Dis-

trict County Court, supra, this Court began the framework

of a presumptive rule interpreting Surplus Acts. In Solem

v. Bartlett, supra, this Court laid out in plain and simple

terms an interpretive rule for all to understand. The Solem

Court stated:

Explicit reference to cession or other language

evidencing the present and total surrender of all

tribal interests strongly suggests that Congress

meant to divest from the reservation all unallot-

ted opened lands. DeCoteau v. District Count

Court, supra, at 444-445; Seymour v. Superinten-

dent, 368 U.S. 353, 355 (1962). When such lan-

guage of cession 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 for the tribe’s reservation

to be diminished.

Id.

The Eighth Circuit failed to apply the statutory pre-

sumption. Their failure to utilize the rule will lead to

uncertainty and unpredictability making this case critical

for all states and governmental bodies affected by Sur-

plus Land Acts.

A. The Eighth Circuit erred in failing to apply the

statutory presumption.

In 1892 the Yankton Sioux Tribe of Dakota agreed to,

“cede, sell, relinquish, and convey to the United States all

their claim, right, title, and interest in and to all of the

unallotted lands within the limits of the reservation... ”.

Art. I. 27 Stat. 1120 (1892).

In consideration for the lands ceded, sold, relin-

quished, and conveyed to the United States as

aforesaid, the United States stipulates and

agrees to pay to the said Yankton tribe of Sioux

Indians the sum of six hundred thousand dol-

lars ($600,000.00), as hereinbefore provided for.

Id at Art. II.

The language of Articles I and II fit squarely within

the statutory presumption as stated in Solem v. Bartlett,

supra. The 1892 language plainly states that the Yankton

Sioux agreed to cede property to the United States. The

1892 agreement combines. the cession language with an

absolutely unconditional commitment to pay the Yankton

Sioux $600,000.00.

Articles I and II of the agreement left the Court of

Appeals with two choices, either declare the presumption

of Solem v. Bartlett, supra, a misstatement of law, or follow

the presumption. The Court of Appeals did neither. The

Court of Appeals only mentions the presumption as a

part of South Dakota’s argument. At best the Court of

Appeals simply ignores Solem v. Bartlett, supra.

B. Reaffirming the statutory presumption will

lead to predictability making this case of

extreme national importance.

In the late 1800's Congress set aside large portions of

the Western United States for Indian Reservations. Solem

v. Bartlett, supra, at 466. In 1887, Congress passed the

General Allotment Act. 24 Stat. 388 (1887). The Allotment

Act authorized the President to allot the lands of the

reservations in severalty to individual Indians and fami-

lies. Id. “After lands have been allotted to all Indians of

any tribe, . . . or sooner if in the opinion of the President

it shall be for the best interests of said tribe,” the Secre-

tary of the Interior may negotiate with the tribe for the

purchase and release of any lands on the tribe’s reserva-

tion that have not been allotted. Id. at 389. Congress

labeled the excess land, “surplus”, and envisioned open-

ing the “surplus” to homesteaders. Id. at 390.

Congress intended the Indians to learn to farm,

become civilized, and slowly assimilate into society. 17

Cong. Rec. 103, 1633 (1886). Congress hoped the reserva-

tions would then cease to exist.! Because of the Congres-

sional intent and the pressure of homesteaders seeking

new land, Congress passed several surplus land Acts in

the late 1800’s and early 1900’s. See F. Cohen, Handbook

! Representative Stevens from the Committee on Indian

Affairs, stated, “By these provisions your committee believe the

Indian will be stimulated to personal action; the prospect of

securing a home that shall be his own will be such an incentive

to labor that he will zradually but surely abandon his nomadic

habits and settle down to a life of comparative industry.

Individual rights, action, and responsibility can only work this

change in the condition of the Indian; he must no longer be

surrounded by a “Chinese Wall.” H.R. Rep. No. 2247, 48th

Cong., 2nd Sess. (1895).

Senator Maxey also stated, “He can no longer depend upon

this Government to support him in idleness; that the system of

herding Indians on reservations to lie idle and be provided for

by the Government is to cease.” 17 Cong. Rec. 103, 1632 (1886).

Federal Indian Law 127-134 (1982 ed.) The Surplus Acts

impacted several Western States.

Five Montana tribes felt the effect of a Surplus Land

Act. These Tribes include the Crow, the Blackfeet, the

Indians of the Fort Belknap Reservation, the Confeder-

ated Salish Kootenai Tribes, and the Indians of the Fort

Peck Reservation.

In 1891, the Crow Tribe agreed to dispose of and sell

part of its property for the sum of $946,000.00. 26 Stat.

1039-1040 (1891). App. 1. Again in 1904, the Crow Tribe

also agreed to “cede, grant, and relinquish,” to the United

States all of its right, title, and interest in real property for

the sum of not less than $4.00 per acre. 33 Stat. 352 (1904).

App. 2. This Court stated that these acts “reduced the

reservation.” Montana v. United States, 101 S.Ct. 1245,

1249, 450 U.S. 544, 548 (1981). An unreported District

Court decision did, however, find the 1904 Act dimin-

ished the Crow reservation. Hawkins v. Crist, No. CV

76-99-BLG (D.Mont.January 27, 1978). App. 3. See also

Confederated Salish Kootenai Tribes, Etc. v. Namen, 665 F.2d

951, 957 n.13 (9th Cir. 1982).2 Unless the decision in

Montana v. United States, supra, and Hawkins v. Crist,

2 The 1891 Act contains a similar “savings clause” as the

1894 Yankton Sioux Act. It provides, “That all existing

provisions of the treaty of [1868] and the agreement . . . dated

[1882] shall continue in full force.” The Montana v. United States,

supra, decision and the Hawkins v. Crist, supra, decision did not

find that this language denied a finding of diminishment.

supra, equal the litigation of the 1891 Act, then no party

has fully litigated the effect of the 1891 Act.

In 1895, the Blackfeet Tribe also agreed to “convey,

relinquish and release” to the United States all of its

right, title, and interest in real property. 29 Stat. 353

(1896). App. 4. In consideration of the “cession” the

United States paid to the Tribe $1,500,000.00. Id.

In 1896 the Indians of the Fort Belknap Reservation

also agreed to “convey, relinquish, and release” all their

rights in real property. 29 Stat. 350 (1896). App. 5. In

consideration for the “cession” the Tribe received

$360,000.00. Id. The result of the 1896 Act with regard to

the Blackfeet and the Indians of Fort Belknap have never

been litigated.

In 1904, Congress “opened to settlement and entry”

lands of the Confederated Tribes. 33 Stat. 302 (1904). App.

6. The Act required the money from the sale of the

opened land to be given to the local land officer and

placed in the United States Treasury. Id. The United

States paid the Confederated Tribes in accordance with

Section 14 of the Act. Id. The Ninth Circuit held that

Congress did not intend to diminish the Flathead Reser-

vation. Confederated Salish & Kootenai Tribes, Etc. v. Namen,

665 F.2d 951 (9th Cir. 1982).

In 1908, Congress “opened to settlement and entry”

lands of the Indians of the Fort Peck Reservation. 35 Stat.

558 (1908). App. 7. The United States paid the Fort Peck

Indians in a manner similar to the Confederated Tribes.

Id.

Numerous reservations throughout the United States

face similar histories to the Yankton Sioux, and the five

Surplus Land Act Tribes of Montana. Many tribes have

not experienced the litigation of their Surplus Land Acts.

Most states, which encompass these reservations, lie in

wait wondering the result of possible diminishment liti-

gation. These states and counties encompassing and sur-

rounding the reservations have invested substantial

public funds in developing highways, bridges, and public

buildings. Tax dollars pay for services including law

enforcement, waste management and road maintenance.

The states and counties have made these investments

assuming they have civil and criminal jurisdiction over

the areas affected by the various Congressional Acts.

They also assume they can tax the fee property and the

persons in the area.

In reviewing the Congressional Acts affecting the

Crow, the Blackfeet, and the Indians of Fort Belknap, all

of the Acts contain cession language “buttressed by an

unconditional commitment” to compensate for the

opened land. Applying the Solem v. Bartlett, supra, pre-

sumption, the 1891, and 1904 Acts diminished the Crow

Reservation and the 1895 Acts diminished the Blackfeet

and Fort Belknap Reservations.

Application of the statutory presumption leads to

predictability for the states and counties. If this Court

reaffirms the statutory presumption of Solem v. Bartlett,

supra, then the states and counties of the West can rest

easy knowing that their investments are subject to their

civil and criminal control. The states and counties can

make future decisions regarding construction, mainte-

nance, services, and employment. The states and counties

10

will know that they can tax the fee land in the area and

the people in order to fund the construction and services.

C. Failure to use the presumption conflicts with

this Court’s prior diminishment decisions.

In Solem v. Bartlett, supra, at 469 n. 10, this Court

compared prior diminishment decisions by creating a

spectrum. The Solem v. Bartlett, supra, Court placed the

DeCoteau, supra, decision at the extreme end showing

clear diminishment. At the other end of the spectrum the

Court placed Seymour v. Superintendent, supra, as the clear

example showing no-diminishment.

In DeCoteau, supra, the Lake Traverse Tribe agreed to

“cede, sell, relinquish, and convey” its surplus land for a

sum certain of $2.50 per acre. DeCoteau, supra, at 437. In

Seymour, supra, on the other hand, the Act authorized the

Secretary of the Interior to “sell or dispose of” the

unallotted lands of the Colville Reservation in consider-

ation of any proceeds the sales generated. 34 Stat. 80

(1906). Solem v. Bartlett, supra, at 469. The Colville Tribe

did not agree to a sum certain, Id.

Finally, the Court found in the middle of the spec-

trum the Rosebud Sioux Act of 1904. Id. The 1904 Act

incorporated the cession language of the Tribe’s 1901

agreement but lacked the sum certain language. Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 596 (1977). Instead, the

Act guaranteed the Tribe only the proceeds from the sale

of the surplus lands. Id.

The presumption would apply in DeCoteau, supra.

The Lake Traverse agreement contained cession language

11

combined with a commitment to compensate creating a

presumption of diminishment.

The Colville agreement, however, contained neither

cession language, nor a commitment to compensate. As a

result, the presumption cannot apply. The language of the

Act, the legislative history and the pragmatic circum-

stances required a finding that Congress did not intend

the Colville Reservation to be diminished.

In the Rosebud, supra, decision, the presumption prob-

ably applies because Congress provided an unconditional

commitment to compensate. Even if the presumption did

not apply, the surrounding circumstances and the legisla-

tive history caused a finding of diminishment.

In the Yankton Sioux case, the presumption applies.

The agreement contained express cession language com-

bined with an unconditional commitment to compensate.

The Solem v. Bartlett, supra, presumption applied.

Despite the statutory presumption found in this

- Court's precedence, the Court of Appeals did not

acknowledge its existence. The Court of Appeals should

have required Respondents to rebut the presumption. The

Circuit Court should have examined the legislative his-

tory and pragmatic circumstances only to see if they

rebutted the presumption. Instead, the Court of Appeals

ignored the presumption and used the savings clause in

Article XVIII to manufacture ambiguity. Finally, the Court

of Appeals used inconclusive legislative history and other

suspect sources to mold their decision.

12

Il. THE COURT OF APPEALS ERRED IN FAILING

TO CONSIDER THE JURISDICTIONAL ASSUMP-

TIONS AND FUTURE PROBLEMS AS A PART OF

THE SURROUNDING CIRCUMSTANCES.

As stated above, the Courts look to the face of the

Surplus Land Act, the legislative history, and the “sur-

rounding circumstances” to determine whether diminish-

ment has occurred. Rosebud, supra, at 587, quoting Mattz

v. Arnett, 412 U.S. 481, 505 (1973). Consideration of the

jurisdictional history and assumptions constitutes a part

of the subsequent history and surrounding circum-

stances. See Rosebud, supra, at 603. “The element of subse-

quent history which provides the strongest index of

congressional intent is the ‘jurisdictional history’.”

Hawkins v. Crist, supra, at App. 3, p. 8.

The jurisdictional assumptions by South Dakota and

the Yankton Sioux Tribe strongly support a finding of

diminishment. These issues are of extreme importance to

the State and the local governments around the 1858

Treaty boundaries.

A. The Court of Appeals erred in failing to give

any weight to the jurisdiction assumptions of

the State and the Tribe.

As the Solem v. Bartlett, supra, Court pointed:

The Modern legacy of the surplus land Acts has

been a spate of jurisdictional disputes between

state and federal officials as to which sovereign

has authority over lands that were opened by

the Acts and have since passed out of Indian

ownership. As doctrinal matter, the States have

13

jurisdiction over unallotted opened lands if the

applicable surplus land Act freed that land of its

reservation status and thereby diminished the

reservation boundaries. On the other hand, fed-

eral, state, and tribal authorities share jurisdic-

tion over these lands if the relevant surplus land _

Act did not diminish the existing Indian reser-

vation because the entire opened area is Indian

country under 18 U.S.C. Section 1151(a) (1982

ed.).

Solem v. Bartlett, supra, at 467. The “jurisdictional history”

of the area and the assumption of jurisdiction by the State

are two factors entitled to weight. Rosebud, supra, at

604-605. As the Rosebud, supra, Court stated, “The long-

standing assumption of jurisdiction by the State . . . not

only demonstrates the parties’ understanding of the

meaning of the Act, but has created justifiable expecta-

tions which she''!d not be upset by so strained a reading

of the Acts of Congress.” Id.

By making broad assumptions, the Court of Appeals

determined that 32 to 44 percent of the population within

the 1858 boundaries are Indians. Opinion of the United

States Court of Appeals for the Eighth Circuit, at 35 (Oct.

24, 1996). Only 37,000 acres remain in trust within the

1858 Treaty boundaries. Id. at n.25. This equals less than

10 percent of the total 1858 treaty acres. Id.

The Court of Appeals found that South Dakota “has

quite consistently exercised various forms of govern-

mental authority over the opened lands.” Id. at 32. South

Dakota has exercised criminal and civil jurisdiction over

the opened areas and has “played a significant regulatory

role,” over many issues affecting the opened area. Id. The

14

counties and municipalities patrol the opened areas with

county and city law enforcement and maintain over 500

miles of roads within the Treaty boundaries. Id. The

Bureau of Indian Affairs maintains only 20 miles of roads

in the area. Id.

The Yankton Sioux, on the other hand, has not exer-

cised criminal, civil, or regulatory jurisdiction over non-

trust lands, “until recently.” Id. at 33. The Tribe also

struggles with its exercise of self-government. Id.

The Court of Appeals gave these important jurisdic-

tional assumptions no weight at all. The entire jurisdic-

tional history covers little more than one page in the

decision. More importantly, the Court of Appeals

attempts to rebut a strong jurisdictional assumption by

the State with the weak and inconclusive testimony of

one State bureaucrat. The Court also makes very little of

the fact that the Tribe itself has not exercised jurisdiction

until recently on non-trust property.

The assumption of jurisdiction constitutes the most

striking evidence comprising the surrounding evidence of

diminishment. The State and local governments took the

affirmative step of investing time, resources, and labor

into the area. The Tribe, however, failed to invest any-

thing in the area, yet they now claim jurisdiction. If the

Tribe believed they had possession to the open lands,

they would have attempted to maintain its tribal charac-

ter using Tribal ideals. If the Tribe believed that the lands

were part of the reservation, then they would have regu-

lated the use and environmental quality of the area so as

to promote the tribal character. Instead, the Tribe com-

pletely and unequivocally left the definition of the land to

15

the State. Because the Tribe chose to ignore the opened

land, the land has developed under the ideals of South

Dakota void of any tribal character. Tribal and State offi-

cials of the past, therefore, understood the reservation

had been diminished.

B. The Court of Appeals should have considered

the jurisdictional effect of a finding of no-

diminishment.

Tribes reserve the inherent sovereign rights not

divested by treaty, an express act of Congress, or by their

domestic dependent status. Montana v. United States,

supra, at 564. See also United States v. Wheeler, 435 US.

313, 326 (1978). The Tribe’s inherent sovereignty generally

extends only to what is necessary to protect tribal self-

government or to control internal relations. Montana v.

United States, supra, at 563. This Court has found an

implicit divesture of sovereignty in areas involving the

relations between tribes and non-members. Id. at 1258,

U.S. at 564. The Montana v. United States, supra, Court

found as a gener! proposition the inherent sovereign

powers of a tribe fail to extend to the activities of non-

members. Id. at 565. The Court qualified the general

proposition with the following two exceptions:

[1] To be sure, Indian tribes retain inherent

sovereign power to exercise some forms of civil

jurisdiction over non-Indians on their reserva-

tions, even on non-Indian fee lands. A tribe may

regulate, through taxation, licensing, or other

means, the activities of nonmembers who enter

consensual relationships with the tribe or its

16

members, through commercial dealing, con-

tracts, leases, or other arrangements. Williams v.

Lee, 358 U.S. 217, 233. [2] A tribe may also retain

inherent power to exercise civil authority over

the conduct of non-Indians on fee lands within

its reservation when that conduct threatens or

has some direct effect on the political integrity,

economic security, or health or welfare of the

tribe.

Id. 565.

A finding of no-diminishment opens a pandora’s box

of jurisdictional issues to clog the federal courts.

Although this Court has narrowed the Montana v. United

States, supra, exceptions,® the Federal and State Courts

struggle with the issues raised by Montana v. United

States. A finding of no-diminishment will require the

federal and state courts of South Dakota to determine

whether the Yankton Sioux can enforce their Tribal

Employments Rights Ordinance (TERO) upon non-mem-

bers on fee land. See Duncan Energy v. Three Affiliated

Tribes, 27 F.3d 1294 (8th Cir. 1994). Courts may have to

determine whether the Tribe can pass a resolution placing

3 A mere ownership of land within the reservation does not

constitute consent within the first Montana v. United States,

exception. Brendale v. Yakima Indian Nation, 492 U.S. 408, 427

(1989). Consent requires a finding that the non-member utilizes

the services provided by the tribe. Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130, 138 (1982).

The plurality of Justice White, Scalia, and Kennedy

interpreted the second Montana v. United States, supra, exception

as an authorization to regulate that is dependent upon the

finding of “demonstratably serious” circumstances. Brendale,

supra, at U.S. 430.

17

a right of first refusal on the sale of fee and trust land. See

Concerned Landowners Assoc., Inc. v. Blackfeet Tribe,

CV-95-124-GF-PGH (Sept. 12, 1996). If the Yankton Sioux

make a request under 33 U.S.C. Section 1313 of the Clean

Water Act to be treated as a state, the courts will deter-

mine whether the Tribe can regulate non-member use of

water on fee land. See State of Montana v. United States,

CV-95-56-M-CCL (Mar. 29, 1996) (appeal before the Ninth

Circuit).

A finding of no-diminishment will cause the Court to

determine whether the Tribal Court has jurisdiction over

a dispute between two non-members. See Strate v. A-1

Contractors et al., U.S.W.L. 202022 (1997) finding that the

tribal court did not have jurisdiction. Hinshaw v. Mahler,

42 F.3d 1178 (9th Cir. 1994), finding the tribal court had

jurisdiction. See also Agri West v. Koyama Farms, Inc., 933

P.2d 808 (1997).

A finding of no-diminishment also creates a quag-

mire of problems for criminal jurisdiction. The State and

the Tribe must address the issue of enforcing the criminal

laws of conflicting jurisdictions. The questions include

what a State trooper does when arresting a Tribal member

for driving under the influence, and does the district

attorney extradite from the Yankton Reservation.

These issues are of extreme importance to South

Dakota and the local governments affected by a no-

diminishment decision. The Court of Appeals erred when

it did not consider the future jurisdictional problems in

light of Tribal regulational void. The Tribe has little or no

experience in regulating the fee property within the 1858

boundaries. The Tribe has little or no experience with

18

effective self-government and no experience in handling

effective law enforcement over an area as broad as the

1858 boundaries.

Certainly, the Tribe will face financial constraints in

developing a sufficient regulatory body and law enforce-

ment team. Finally, the new territory and its demands

will require the Tribe to expand its court including hiring

more judges and staff, prosecutors, and constructing new

courts. The Court of Appeals should have considered the

jurisdictional assumptions, the governmental void, and

the practical jurisdictional realities.

¢

CONCLUSION

This Court should issue a writ of certiorari. The

Eighth Circuit failed to use the Solem v. Bartlett, supra,

presumption. Because the Eighth Circuit ignored the pre-

sumption, this case stands at the center of all diminish-

ment decisions. Either this Court reaffirms the Solem v.

Bartlett, supra, presumption and provides predictability,

or the Eighth Circuit’s decision will stand creating an

unforeseeable future for States and local governments

throughout the West.

The Eighth Circuit erred in following this Court's

diminishment decisions when it gave no weight to the

jurisdictional history and assumptions of South Dakota

and the Yankton Sioux. South Dakota has consistently

exercised civil and criminal authority within the 1858

Treaty boundaries while the Tribe exercised no authority.

The Court of Appeals paid no attention to these realities.

- ee ge

19

Finally, the Eighth Circuit should have considered

the jurisdictional problems a no-diminishment decision

creates under the Montana v. United States, supra, test. A

no-diminishment decision opens a quagmire of issues for

the courts.

For the reasons stated in this Brief, Amicus respect-

fully requests this Court to issue Petitioner’s Writ of

Certiorari.

Respectfully submitted,

THANE P. JOHNSON

WERNER, Epstein & JOHNSON

14 E. Main, P. O. Box 428

Cut Bank, MT 59427

Counsel for Maco — Amicus

APPENDIX

ee ee ee

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

SHERMAN P. HAWKINS,

Petitioner, CV-76-99-BLG

-Vs-

ROGER W. CRIST, Warden of

the Montana State Prison, and

THE STATE OF MONTANA,

Respondents.

MEMORANDUM

AND ORDER

(Filed Jan. 27, 1970)

ee ee eee ee ee ee ee ee”

Sherman P. Hawkins is currently in the custody of

the State of Montana, serving a life sentence for first

degree murder. He filed the instant application for a writ

of habeas corpus, alleging that the State Court which

rendered the judgment against him lacked jurisdiction.

Hawkins alleges that the offense occurred in “Indian

country,”! and was therefore under the exclusive criminal

1 Under 18 U.S.C. § 1152, “the general laws of the United

States as to punishment of offenses committed in any place

within the sole and exclusive jurisdiction of the United

States .. . shall extend to Indian country.” Under 18 U.S.C.

§ 1153, homicide committed in Indian country is within the

exclusive jurisdiction of the United States. 18 U.S.C. § 1151

defines “Indian country” to mean, inter alia, “all land within the

limits of any Indian reservation.” It therefore follows that if the

land on which the offense occurred remained “Indian country”,

the state courts were without jurisdiction.

App. 2

jurisdiction of the United States. The offense occurred on

a tract of land within the original exterior boundaries of

the Crow Reservation, established under the Treaty of

May 7, 1868, 15 Stat. 649. Pursuant to an agreement

ratified by the Act of April 27, 1904, 33 Stat. 352, the Tribe

agreed to “cede, grant and relinquish” its interest in the

tract in exchange for certain consideration. The Court

concludes that this Act has the effect of disestablishing

the tract as “Indian country,” thereby rendering it subject

to state criminal jurisdiction. The petitioner’s application

will therefore be denied.?

In United States v. Celestine, 215 U.S. 278, 285 (1909),

the Supreme Court announced the general rule governing

questions of disestablishment: “[W]hen Congress has

once established a reservation, all tracts included within

its remain a part of the reservation until separated there-

from by Congress.” The applicability of this rule is dem-

onstrated in four subsequent Supreme Court decisions.

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

basic facts somewhat similar to those in the case at bar.

Seymour was convicted in state court of a burglary com-

mitted within the original boundaries of the Colville Res-

ervation, on land opened to settlement by the Act of

March 22, 1906, 34 stat. 80. He petitioned for a writ of

habeas corpus, alleging that the state lacked criminal

2 It is uncontested that petitioner has exhausted his State

remedies, satisfying the requirements of 28 U.S.C. § 2254(b).

This Court, therefore properly has jurisdiction. Neither party

has requested an evidentiary hearing, see Rule 8, Rules

Governing Section 2254 Cases, and I conclude that none is

required on this record.

App. 3

jurisdiction since the offense occurred in “Indian coun-

try.” The Supreme Court agreed. The Court compared the

language of the 1906 Act with that of an 1892 statute

which provided that the North Half of the Colville Reser-

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

In contrast, the 1906 Act merely “provided for the sale of

mineral lands and for the settlement and entry under

homestead laws of other surplus lands remaining on the

diminished Colville Reservation after allotments were first

made the patents issued for 80 acres of land to ‘each man,

woman, and child’ ” among the tribal members. 368 U.S.

at 355 (emphasis added).

The Court found that the language of the 1892 statute

explicitly disestablished the North Half of the Reserva-

tion. However, the Court concluded that the 1906 “Act

did no more than open the way for non-Indian settlers to

own land on the reservation in a manner which the

Federal Government, acting as guardian and trustee for

the Indians, regarded as beneficial to the development of

its wards.” Id. at 356. The Court found further support for

this interpretation in subsequent legislation referring to

“the existing reservation,” and in the construction of the

1906 Act followed by the Department of the Interior. The

Court concluded that the South Half of the reservation

was not disestablished, and that the State was therefore

without criminal jur!*:tiction.

In Mattz v. Arnett, 412 U.S. 481 (1973), the petitioner,

a Klamath River Indian, intervened in an action seeking

forfeiture of certain gill nets confiscated from him within

the confines of the original Klamath River Reservation in

California. The respondent game warden argued that he

was entitled to confiscate the nets since the confiscation

App. 4

took place in land under state jurisdiction. Petitioner

claimed that the area was “Indian country” and therefore

under the exclusive jurisdiction of the federal govern-

ment.

The Court initially examined the history of the reser-

vation, from its creation in 1855 to June 17. 1892, the date

of the Act which allegedly disestablished tt e reservation.

The Court concluded that the reservation was clearly in

existence prior to the date of the Act. The Court then

examined the terms of the Act, which were quite similar

to those considered in Seymour. It provided “[t]hat all

lands embraced in what was Klamath River Reserva-

tion .. . are hereby declared to be subject to homestead,

entry, and purchase under the laws of the United States

granting homestead rights. . . . “> The Act further pro-

vided that homestead by white settlers would only be

allowed as to land not allotted to Indians, and that the

“proceeds arising from the sale of said lands shall consti-

tute a fund . . . for the maintenance and education of the

Indians. ...” Id. at 495. The Court found this arrange-

ment to be “completely consistent with continued reser-

vation status”, citing Seymour. Id. at 497.

> The fact that the Act referred to the reservation in the past

tense was found to be of no moment, in light of the peculiar

history of the reservation. Due to legislation limiting the

number of reservations in California, the Klamath River

reservation had previously been connected to and incorporated

in the Hoopa Valley Reservation. The Court found the past tense

usage in the Act to be insignificant for disestablishment

purposes. 412 US. at 498-99.

App. 5

Prior legislative history was found to support the

Court’s construction. The 1892 Act was markedly differ-

ent from prior legislative attempts to explicitly abolish

the reservation. Further support was found in the con-

struction placed on the Act by the Department of the

Interior and in subsequent Congressional Acts. The Court

concluded that the reservation was not disestablished by

the 1892 Act.

The Court reached an opposite conclusion in DeCot-

eau v. District County Court, 420 U.S. 425 (1975), a case

involving the Lake Traverse Reservation in South Dakota.

The case presented the consolidated appeal of two crimi-

nal defendants charged in state court with offenses com-

mitted on alleged reservation land, and the appeal of an

Indian mother contesting state jurisdiction to adjudicate

child custody matters on the alleged reservation. The

State alleged that its assumption of jurisdiction was

proper, based on an 1891 Act which ratified an agreement

between the Indians and the Department of the Interior.

The Act provided that the reservation land would be

allotted in 160 acre tracts to each tribal member, and that

the remaining unallotted land would be “ceded” to the

United States in exchange for payment to $2.50 per acre.

The Act appropriated funds by which to make this pay-

ment.

The Court initially noted that a reservation will not

be held to be disestablished unless the “congressional

determination to terminate [is] expressed on the face of

the Act or [is] clear from the surrounding circumstances

and legislative history.” 420 U.S. at 444, quoting Mattz,

412 U.S. at 505. The Court then held that these factors

clearly disclosed a Congressional intent to terminate.

App. 6

The Court found that the Act ratified an agreement

whereby for a sum certain in money the Indians agreed to

“cede, sell, relinquish, and convey to the United States all

their claim, right, title, and interest” in the unallotted

land. The Court contrasted this language with that from

Seymour and Mattz, which merely allowed settlement of

unallotted lands. The Court held that in the face of clearly

established Congressional intent to disestablish, it could

not construe the Act as providing for retention of exclu-

sive federal jurisdiction.

The Court concluded its opinion in DeCoteuu by dis-

tinguishing the case from Mattz and Seymour. The Court

found it significant that this case involved a bilateral

agreement whereby the Tribe agreed to relinquish its land

in exchange for a sum certain, while Mattz and Seymour

only dealt with a unilateral opening of reserved lands to

settlement, with the Indians receiving a fund established

by uncertain future sales. The Court concluded that Mattz

and Seymour presented the “guiding principles” for deci-

sion of such cases, but that DeCoteau provided sufficiently

dissimilar facts to justify a contrary result.‘

The final Supreme Court statement on the point is

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

which dealt with the effect of statutory enactments of

1904, 1907, and 1910 on the reservation status of a large

portion of the Rosebud Sioux Reservation. The acts in

question ratified in amended form a 1901 agreement

* DeCoteau specifically reaffirmed the precedential vitality

of Mattz and Seymour, 420 U.S. at 449. Any suggestion that these

cases are no longer good law is therefore clearly wrong;

DeCoteau and Rosebud Sioux merely explain the prior cases.

App. 7

between the Department of the Interior and the Tribes.

The agreement was virtually identical to that considered

in DeCoteau; it provided for the cession of some 416,000

acres in exchange for a lump sum payment of $1,040,000.

In considering ratification, the Congress balked at pay-

ment for the land outright. Therefore, in ratifying the

agreement, Congress amended the portion dealing with

payment to provide (1) that the Indians would only

receive consideration for the lands actually sold; and (2)

that the United States would not “guarantee to find pur-

chasers but agreed only to ‘act as trustee for said Indians

to dispose of said lands.’ ” 430 U.S. at 596.

The Court agreed that in technical usage a “cession”

requires bilateral consent. However, the Court did not

feel bound by technical usage. The Court found that the

intent of Congress, when presented with the original 1901

agreement, was to disestablish the ceded portion. It held

the mere change in method of payment to be insufficient

to manifest a change in intent.

The Court also noted that other provisions of the Act

disclosed an intent to disestablish. For example, the con-

veyance of land to the United States reserved two sec-

tions of each township conveyed “for use of the common

schools”, which sections were conveyed to the State of

South Dakota. The Court found this grant to the State to

be consistent with the establishment of State jurisdiction

over the ceded land on the same footing as that exercised

over any non-reserved land.

It is clear from the foregoing cases that the deter-

mination of whether a reservation has been disestab-

lished involves a case-by-case analysis of three factors to

App. 8

determine the legislative intent:5 (1) the language used by

Congress; (2) the prior and subsequent history of the

reservation; and (3) the legislative history. Of these, |

think the most critical factor is the language of the stat-

ute, which obviously constitutes the clearest barometer of

Congressional thinking. In this case, I find that the lan-

guage strongly indicates disestablishment. The Tribe

agreed to “cede, grant, and relinquish to the United

States all right, title, and interest” in the tract. This lan-

guage was found in DeCoteau to be “precisely suited” to a

purpose of disestablishment.® 420 U.S. at 445. Further, the

agreement contained clauses identified in Rosebud Sioux

as being indicative of a Congressional intent to disestab-

lish. The 1904 Act reserved two sections out of each

township for state school purposes.” Further, Indians

holding allotments in the ceded tract were permitted by

the 1904 Act to apply for allotments within the “portion

° The Court in Rosebud Sioux made clear that the factors

identified in these cases are not absolutes. Rather, the Court

must balance a number of co-equal factors to arrive at a

= aga on the question of legislative intent. 430 U.S. at 588

n. 4.

® In Russ v. Wilkins, 410 F.Supp. 579 (N.D. Cal. 1976), the

Court collected in table form the operative language of the

several cases dealing with disestablishing acts. The cases there

collected illustrate the distinction between disestablishment

language and language which merely opens a reservation for

settlement. Id. at 584.

” The states of Montana and South Dakota were created by

the same enabling act of February 22, 1889, 25 Stat. 679. It

therefore appears that the Supreme Court's reasoning regarding

the “school sections” provisions in Rosebud Sioux, 430 U.S. at

599-601, would apply with equal force here.

App. 9

of the reservation not ceded, granted or relinquished.”*

Finally, the agreement and the 1906 Act expressly con-

templated new boundary lines “for the purpose of seg-

regating the ceded lands from the diminished

reservation.” This language unmistakably points to a

Congressional intent to diminish the amount of land

within the reservation boundaries.

Petitioner contends that the legislative history of the

1904 Act is sparse, and that such legislative history as can

be found supports the conclusion that the tract was

intended to remain Indian land. The items of legislative

history cited by respondents flatly contradict this asser-

tion. In fact, the legislative history of the 1904 Act closely

parallels that of the 1904 Act in Rosebud Sioux. Both were

passed to amend and ratify prior agreements. In both

cases the prior agreements provided for an outright sale

which would constitute a disestablishment under DeCot-

eau. See, Rosebud Sioux, 430 U.S. at 591. In both cases, the

original agreements were amended as to method of pay-

ment, reflecting Congressional dissatisfaction with the

lump sum method of payment. These similarities are not

coincidental. Respondents cite the final Senate Report on

the Crow Act, which states:

This bill is almost identical with H.R. 10418,

known as the Rosebud Indian bill, which has

already passed this house at the present session

of Congress.

8 See, Rosebud Sioux at 613.

App. 10

It is clear that the enactment of the 1904 Act was a result

of the same “familiar forces” which motivated the Con-

gress to disestablish the Rosebud Reservation. See, Rose-

bud Sioux, 430 U.S. at 590. I therefore conclude that here,

as in Rosebud Sioux, the legislative history supports a

finding of disestablishment.?

The element of subsequent history which provides

the strongest index of congressional intent is the “juris-

dictional history.” For example, the Court in Rosebud

Sioux found that the State of South Dakota had exercised

“unquestioned . . . jurisdiction over the unallotted lands

... Since the passage of the 1904 Act. ... ” 430 U.S. at 603.

The Court concluded from this fact that

[T]he longstanding assumption of jurisdiction

by the State over an area that is over 90% non-

Indian, both in population and land use, not

only demonstrates the parties’ understanding of

the meaning of the Act, but has created justifia-

ble expectations which should not be upset by

® Petitioner suggests in his opening brief at 11-12 that an

alternative reading of the statute would construe it to be a

“special allotment”, viz., one which divides and allots a

reservation with the goal of termination at some future time. He

contends that the intended termination of the tract was

forestalled by the Indian Reorganization Act of 1934. He cites no

language in the Act to support this proposition, and my reading

of the Act discloses nothing that even remotely suggests it.

Further, petitioner offers no reason why the Court should

construe this Act as a “special allotment act” when the Supreme

Court in Rosebud Sioux held that a virtually identical statute

effected a disestablishment of the reservation there in question.

See generally, Rosebud Sioux, 430 U.S. at 604 n. 27, regarding the

effect of the Indian Reorganization Act.

App. 11

so strained a reading of the Acts of Congress as

petitioner urges.

Id. at 604-5.

In this case, it is unclear whether the State of Mon-

tana has consistently exercised its criminal jurisdiction

over the tract. However, respondents argue that the Crow

Tribe and the federal government have, since 1905,

treated the tract as non-reservation land. This is not

denied by the petitioner, and the maps and data filed by

respondents with their brief tend to support respondents’

claim. I find it highly unlikely that the Crow Tribe would

relinquish its claim to the tract were it not of the opinion

that the tract had been disestablished. Thus, the subse-

quent history of the tract has not been shown to be

inconsistent with a Congressional intent to disestablish.'°

10 Petitioner relies heavily on the Supreme Court's decision

in Ash Sheep Co. v. United States, 252 U.S. 159 (1920). In that case,

the Supreme Court held that the 1904 Act did not make the tract

“public lands” as that term is defined in an act relating to the

grazing of livestock. The Court held that the land was held by

the United States in trust until sold, and that the trust

relationship required the land to be considered “Indian land”

rather than “public land” for grazing purposes.

The Supreme court considered the impact of Ash Sheep on

the disestablishment question in Rosebud Sioux. The Court held

the “public land-Indian land” dichotomy of Ash Sheep to be

substantially irrelevant to the question of disestablishment;

stating

As recognized by the Court of Appeals [in Rosebud

Sioux, 521 F.2d 87 (8th Cir. 1975)], “the fact that a

beneficial interest is retained does not erode the scope

and effect of the cession made, or preserve to the

reservation its original size, shape, and boundaries.”

App. 12

In sum, I find no meaningful distinction between the

case at bar and the Rosebud Sioux case decided by the

Supreme Court. The language and legislative history of

the statutes and the subsequent history of the tracts

involved are virtually identical. Since petitioner has nei-

ther pointed to any meaningful distinctions nor posed

any plausible alternative constructions of the Act, I feel

bound to decide the case in accordance with the dictates

of Rosebud Sioux.

In consideration of the foregoing,

IT IS HEREBY ORDERED that the petitioner’s appli-

cation for a writ of habeas corpus be, and the same

hereby is, denied.

The Clerk is directed to notify the parties of the entry

of this order.

Done and dated this 27th day of January, 1978.

/s/ James F. Battin

United States District Judge

521 F.2d at 102. The question of whether lands become

“public lands” under [Minnesota v. Hitchcock, 185 U.S.

373 (1902)] and Ash Sheep, is therefore, logically

separate from a question of disestablishment.

430 U.S. at 601 n. 24.