Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe
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No. 96-1581
Supreme Court. "we
EF D
IN THE MAY' 7% 1997
Supreme Court of the Unite States, |
OcTOBER TERM, 1996 ee
STATE OF SOUTH DAKOTA,
Petitioner,
v.
YANKTON SIoux TRIBE, a federally recognized
tribe of Indians, and its individuals members;
DARRELL E. DRAPEAU, individually, a member
of the Yankton Sioux Tribe,
ond Respondents,
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
BRIEF OF CHARLES MIX COUNTY, SOUTH DAKOTA,
AMICUS CURIAE IN SUPPORT OF PETITIONER,
STATE OF SOUTH DAKOTA
MATTHEW F. GAFFEY Tom D. TosBIn
Charles Mix County Counsel of Record
State’s Attorney TOBIN LAW OFFICEs, P.C.
P.O. Box 370 422 Main Street
Lake Andes, SD 57356 P.O. Box 730
(605) 487-7441 Winner, SD 57580
(605) 842-2500
Attorneys for Amicus Curiae
—$—$KVKLKE[ XX SSSSSsssestsssssssessstesessssssssssssssnsssssssssnessssss
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WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
TABLE OF AUTHORITIES. ..........2.22.2..---e:-:cececseeeeesees
INTEREST OF AMICUS CURIAE ....0...22.22...0..0.0c000000
REASONS FOR GRANTING THE PETITION ..........
THE OPINION OF THE PANEL MAJORITY
CONFLICTS IN PRINCIPLE WITH THE RELE-
VANT DECISIONS OF THIS COURT .......
A. A Review of the Arguments Previously Pre-
sented and Rejected in This Court Establishes
Clear Principles That Undermine the Opinion of
the Panel Majority and Make Clear the Extent
I alt tadieiiciederenideitaicatanishictabinnensaiitinietasiies
1.
Seymour v. Superintendent, 368 U.S. 351
REE SRS I PSI 0 2
2. Mattz v. Arnett, 412 U.S. 481 (1973) ............
DeCoteau v. District County Court, 420 U.S.
il RT TN ce AE ARC 7
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
ARSE NA EE A OE oe
5. Solem v. Bartlett, 465 U.S. 463 (1984) _........
6. Hagen v. Utah, 510 U.S. 399 (1994)...
7. Yankton Sioux Tribe v. South Dakota, 796
F.2d 241 (8th Cir. 1986), cert. denied, 483
EE: SED II Sadtdhtccenesacineniesineinrenenimenesinienesn
Yankton Sioux Tribe v. Southern Missouri
Waste District, 99 F.3d 1439 (8th Cir. 1996)
ae RAT ARETE Be Et CO
SII lide cresting nesnaigntcticinenttdnmeapenniinbocdnenanstinedeaiiecs
APPENDIX
Memorandum for the United States, Seymour v.
Superintendent, 368 U.S. 351 (1962) 200000000000.
17
19
la
ii
TABLE OF CONTENTS—Contiuned
Brief for the United States as Amicus Curiae,
Mattz v. Arnett, 412 U.S. 481 (1973) ...................-.-
Brief for the United States as Amicus Curiae,
DeCoteau v. District County Court, 420 U.S. 425
(2OTB) ..2..<..ccccccescsncsenenessosesncssnecenateinesesientniaasnaainieaeieee
Brief for the United States as Amicus Curiae,
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
(IDET) .220.cccecnscenccccsarscenecnacsveesatascesttessssnteeeenneesennensaee ees
Brief for the United States as Amicus Curiae Sup-
porting Respondent, Solem v. Bartlett, 465 U.S.
GOB CIDE) a ccccecerciectserntcnsvecesnennenaaamas
Brief for the United States as Amicus Curiae
Supporting Petitioner, Hagen v. Utah, 510 U.S. 399
(TBD GD ncaccccccccrcvensocoscnrascecesnepenesenseniianeannimmamnamanal
Brief for the United States in Opposition, Yankton
Sioux Tribe v. State of South Dakota, 796 F.2d
241 (8th Cir. 1986), cert. denied, 483 U.S. 1005
(: | ann ee
98a
128a
iii
TABLE OF AUTHORITIES
CASES: Page
Antoine v. Washington, 420 U.S. 194 (1975)... 5
DeCoteau v. District County Court, 420 U.S. 425
EEE SSL RS OE passim
Hagen v. Utah, 510 U.S. 399 (1994) 00. passim
Johnson v. United States, 163 F. 30 (lst Cir.
ES ET NO Sa 13
Mattz v. Arnett, 412 U.S. 481 (1973) 0000000000... passim
Oregon Dep't of Fish & Wildlife v. Klamath Indian
Tribe, 473 U.S. 753 (1985) -.............00. nn... 18
Perrin v. U.S., 232 U.S. 478 (1914) ........ (alii 19
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
EE EEE RE OTN Oe passim
Seymour v. Superintendent, 368 U.S. 351 (1962)... passim
Solem v. Bartlett, 465 U.S. 463 (1984) —.......... 3, 15, 16, 18
State v. Greger, 599 N.W.2d 854 (S.D. 1977) .......... 2
United States v. Pelican, 232 U.S. 442 (1914)... 5
Yankton Sioux Tribe v. South Dakota, 796 F.2d 241
(8th Cir. 1986), cert. denied, 483 U.S. 1005
EEE ES ee ee ee 17
Yankton Sioux Tribe v. Southern Missouri Waste
Dist., 99 F.3d 1489 (8th Cir. 1996) 0000000000 1,19
STATUTES:
Act of June 17, 1892, 27 Stat. 52 ... iw 2
General Allotment Act of 1887, 24 Stat. 388 . ...passim
Act of March 3, 1891, 26 SU *. 1036 .. is, Be
Act of August 15, 1894, 28 Stat. 286 . 7 LOAGEES Pee passim
Act of April 23, 1904, 33 Stat. 254 000, 13
CONGRESSIONAL MATERIALS:
H.R. Rep. No. 791, 50th Cong., Ist Sess. (1988)... 6
S.Rep. No. 664, 52d Cong., Ist Sess. (1892) 5
OTHER AUTHORITIES:
Brief for the United States as Amicus Curiae,
DeCoteau v. District County Court, 420 U.S.
425 (1975) (No. 73-1148) ........ 02.0... 10, 11
Brief for Uintah County, Utah, Hagen v. Utah,
510 U.S. 399 (1994) (No. 92-6281) 00000 4
iv
TABLE OF AUTHORITIES—Continued
Brief for the United States as Amicus Curiae S*>-
porting Petitioner, Hagen v. Utah, 510 U.S. 39°
0 GF: Sees
Brief for the United States, Mattz v. Arnett, 412
U.S. 481 (1978) (No. 71-1182) ..........................
Brief for the United States as Amicus Curiae,
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
BEES SE RO
Memorandum of the United States, Rosebud Sioux
Tribe v. Kneip, 430 U.S. 584 (1977) (No. 75-
RS EE OD Eee
Brief for Petitioner, Seymour v. Superintendent,
368 U.S. 351 (1962) (No. 62) 0.
Memorandum for the United States, Seymour v.
Superintendent, 368 U.S. 351 (1962) (No. 62)...
Brief for the United States as Amicus Curiae Sup-
ee Respondent, Solem v. Bartlett, 465 U.S.
463 (1984) (No. 82-1253) .
Brief for the United States in Opposition, ‘Yankton
Sioux Tribe v. State of South Dakota, 796 F.2d
241 (8th Cir. 1986) (No. 86-1436) 000.
Brief for the United States, Yankton Sioux Tribe
v. Southern Missouri Waste District, 99 F.3d
1439 (8th Cir. 1996) (No. 95-2647) 00000.
Petition for Writ of Certiorari, Yankton Sioux
Tribe v. Southern Missouri Waste District (No.
Rg Be ae
Brief for the Cities as Amici Curiae in Support of
Petitioner, Yankton Sioux Tribe v. Southern
Missouri Waste District (No. 96-1581) -. 7,
CRE eee 8 PONS Le Sera
Transcript of Oral Argument, Erickson v. US. « ex
rel. Feather, U.S. Supreme Court No. 73-1500,
decided with DeCoteau v. District County Court,
OR A ES ee
Transcript of Oral Argument, Hagen v. Utah, 510
U.S. 399 (1994) (No. 92-6281) 0...
Transcript of Oral Argument, Mattz v. Arnett, 412
U.S. 481 (19738) (No. 71-1182) oe. te
Page
cen A AE
v
TABLE OF AUTHORITIES—Continued
Page
Transcript of Oral Argument, Rosebud Sioux Tribe
v. Kneip, 430 U.S. 584 (1977) (No. 75-562) .....2, 13, 15
54 Interior Dec. 569 (1984) 14
— wee. o—_—
OP e~ ae
INTEREST OF AMICUS CURIAE
The majority's assertion that ‘Article XVIII of
the 1894 statute indicated that as much of [the
1858] treaty as possible was to be preserved,’ Maj.
Op. at 1448, is based neither on the text—which
referred only to annuities—nor the legislative history
of the 1894 Act, and has as its source only, as best
as I can discern, a single-minded desire to avoid
diminishment at all costs.
Yankton Sioux Tribe v. Southern Missouri Waste Dist.,
99 F.3d 1439, 1462 (8th Cir. 1996), J. Magill dissent-
ing. Pet. App. at 56 (emphasis added).
The vital concern that prompts the filing of this Amicus
Brief can be simply stated. Prior to this litigation, all
the courts and parties had recognized that the 1858
Yankton reservation no longer existed. Now, a century
later, more than half of the area of Charles Mix County,
South Dakota, is at issue. Consequently, the approxi-
mately 6,000 people that reside there presently face the
prospect of being suddenly thrust into the status of resi-
dents of an Indian reservation. If this takes place, their
Officials would have only limited jurisdiction and the non-
members would have no elected voice in the governance
of their affairs and property by the Tribe.
The demographics of Charles Mix County in this area
are similar to other non-reservation rural counties found
in the State of South Dakota and the United States.
Ninety percent of the land is owned by non-members and
over two-thirds of the residents are non-members who
reside on small farms and in small towns and cities like
Dante, Lake Andes, Pickstown, Ravinia and Wagner.
See Brief for the Cities as Amici Curiae in Support of
Petitioner. Although this Court has repeatedly recognized
in this situation, that the justifiable expectations of the
people should not be lightly regarded or simply swept
aside, the panel majority ignored that prudential advice.
Hagen v. Utah, 510 U.S. 399, 421 (1994); Rosebud
Sioux Tribe v. Kneip, 430 U.S. 584, 604-605 (1977).
For these reasons, the issue here is of grave importance
to the residents and governments of Charles Mix County,
South Dakota.
v4
The Supreme Court of the State of South Dakota sub-
sequently considered the identical disestablishment ques-
tion in State v. Greger, 559 N.W.2d 854 (S.D. 1997),
Pet. App. 125. In a unanimous opinion, the State Su-
preme Court rejected the views of the panel majority and
reaffirmed the longstanding position that the Yankton
reservation was disestablished. The County would submit
that the views of the State Supreme Court are more in line
with the principles formulated by this Court, principles
that should have been controlling here.
REASONS FOR GRANTING THE PETITION
THE OPINION OF THE PANEL MAJORITY CON-
FLICTS IN PRINCIPLE WITH THE RELEVANT DE-
CISIONS OF THIS COURT.
The County fully supports the reasons for granting the
petition set forth in the Petition of the State. The County
also recognizes that the primary consideration governing
review will focus on the conflict between the. United
States Court of Appeals for the Eighth Circuit and the
Supreme Court of the State of South Dakota. The County
further agrees that the decision of the panel majority con-
flicts substantially with the relevant decisions of this
Court. This brief will focus on that conflict and the role
of the United States in the entire process.
A. A Review of the Arguments Previously Presented and
Rejected in This Court Establishes Clear Principles
That Undermine the Opinion of the Panel Majority
and Make Clear the Extent of Conflict.
Now, this principle that Congress did not intend to
disestablish the Reservations is not one that the gov-
ernment has made up out of whole cloth. It is sup-
ported both by history and by the previous decisions
of this Court.
Office of Solicitor General, Tr. Rosebud Sioux Tribe v.
Kneip, 430 U.S. 584 (1977) (No. 75-562) (emphasis
added).
A fair reading of Seymour v. Superintendent, 368 U.S.
351 (1962); Mattz v. Arnett, 412 US. 481 (1973);
DeCoteau v. District County Court, 420 US. 425
ee ee
3
(1975); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
(1977); Solem v. Bartlett, 465 U.S. 463 (1984) and
Hagen v. Utah, 510 U.S. 399 (1994), clearly undermines
the views set forth by the panel majority. The Petition
highlights these important principles and, for that reason,
they will not be repeated here.
In addition, however, a proper perspective regarding
the history of disestablishment litigation before this Court
is important in order to accurately assess the views of
the panel majority and the dissent in conjunction with the
principles set forth in these relevant decisions. This brief
is intended to serve that purpose and provide that perspec-
tive. The County starts with a brief review of the primary
arguments presented and rejected in each case decided by
this Court, as well as the historic perspective available or
established at the time. Such a review advances three
overriding themes.
First, as one would expect, each time the Court was
presented with this issue, more primary sources were
available from which a proper historical perspective could
be reconstructed and the intent of Congress more conclu-
sively ascertained. The Opinions reflect this documenta-
tion.
Second, the views of the United States are especially
noteworthy. The United States rarely fails to advocate
the resurrection of original reservation boundaries, pre-
sumably because of a perceived obligation to support the
Tribal position. The shifting, but very sophisticated, argu-
ments of the United States (for the most part repeatedly
rejected by this Court) have served mainly to perpetuate
the confusion and conflicts in this area of Federal Indian
law, fueling the prospect of additional litigation.
The central arguments of the United States are there-
fore closely examined for another reason. As will be seen,
the United States repeatedly has made a number of im-
portant concessions in this Court, subsequent to DeCoteau,
regarding the effect of cession agreements, like this one,
on Indian reservations. These cession concessions, made
in conjunction with submissions that urged the continued
4
recognition of other original reservation boundaries, can-
not be explained away. The views of the United States in
this regard, submitted to this Court, merit continued
consideration."
1. Seymour v. Superintendent, 368 U.S. 351 (1962).
A disestablishment issue was first presented to this Court
in Seymour. Although we now know that the 1906 Col-
ville Act at issue in that case was one in a series of surplus
land statutes enacted pursuant to the General Allotment
Act of 1887 (Dawes Act)—a routine matter for Con-
gress by 1906—neither the General Allotment Act of
1887 nor the limited legislative history of the 1906 Act
played any real role in the resolution of the question. Act
of February 8, 1887, 24 Stat. 388. The Seymour Opinion
does not cite the General Allotment Act or the legislative
history of the 1906 Colville Act. The briefs are similarly
silent with respect to the General Allotment Act and the
few citations to the 1906 legislative history are set forth
almost as an afterthought.
In short, Seymour was decided almost without the bene-
fit of any historical perspective. “Almost” is used because,
although neither the General Allotment Act nor the legis-
lative history of the specific Act in question played any
role in the decision, Petitioner Seymour did rely on the
contrast between the 1906 Act and the earlier 1892
“public domain” legislation that concededly disestablished
the North Half of the Colville Reservation. Pet. Br. at 10,
Seymour (No. 62). At best, this was a limited perspec-
1 The briefs of the United States in each of the cases are repro-
duced verbatim in Co. App. la-168a. A “public domain” variation
of this same argument was submitted by county government in
Hagen v. Utah, 510 U.S. 399 (1994), together with an appendix
that reproduced most of the briefs the United States had previously
submitted. Brief for Uintah County, Utah, Hagen v. Utah, 510 U.S.
899 (1994) (No. 92-6281). In that instance, the county argument
highlighted the incredibly inconsistent and contradictory position
of the United States regarding “public domain” disestablishment
terminology. In Hagen, as in DeCoteau and Rosebud, the views
of the United States were squarely rejected by this Court. Hagen,
510 U.S. at 411-412.
5
tive, but certainly one that benefited Petitioner by simple
contrast. More important matters were not briefed, i.e.
the argument that the public domain format of the 1892
Act was the result of a refusal by Congress to ratify a
previously negotiated 1891 cession agreement due to the
questionable nature of the title to the Colville Executive
Order Reservation and the argument that the language
was added to deal with a congressional concern that
undesirable precedent might be established. Antoine v.
Washington, 420 U.S. 194, 216 (1975) (Rehnquist, J.,
dissenting); S. Rep. No. 664, 52d Cong., Ist Sess.
(1892). See also, U.S. v. Pelican, 232 U.S. 442 (1914).
In any event, it is doubtful whether any of the above
would have altered the views of the United States, which
argued in support of the Reservation boundaries of the
South Half of the Colville Reservation (“Solicitor Gen-
eral has urged this construction upon the Court”).
Seymour, 368 U.S. at 357.
The Solicitor General’s three page argument was based
predominantly on the 1948 statutory definition of Indian
Country which, of course, begs the question. It was also
based upon subsequent congressional recognition, pri-
marily in 1956, that the Reservation continued to exist.
MUS, Co. App. 3a. Neither the General Allotment Act
nor the historical perspective of the 1906 Act played any
role in the brief for the United States. In this light,
Seymour concluded, without further citation, that:
The 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.
Seymour, 368 U.S. at 356 (emphasis added).
The United States later seized on this statement from
Seymour and tied it to the General Allotment Act of 1887
(which, as previously noted, was not even mentioned in
Seymour). In effect, the United States attempted to at-
tribute to both Seymour and the General Allotment Act,
a new congressional plan or purpose consistent with a new
6
argument that no surplus land statute, passed pursuant to
the General Allotment Act of 1887, was ever intended by
Congress to disestablish portions of Indian Reservations—
a “whole cloth” argument: the revisionist theory of the
General Allotment Act.’
The United States focused on the General Allotment
Act of 1887 for more than one reason. Prior to that time,
Congress routinely utilized treaties, cession agreements
and other similar arrangements, some of which contained
allotment provisions, to disestablish reservations and open
territories throughout the United States to settlement for
decades:
[t]he policy of the Government from its earliest days
has been to restore Indian reservations or portions
thereof to the public domain as the exigencies of ad-
vancing population required it... .
H.R. Rep. No. 791, 50th Cong., Ist Sess. 3 (1888).
No one had ever attempted to even formulate an argument
that Congress never intended these actions to disestablish
the limits or boundaries of Indian reservations. If similar
cession agreements, passed subsequent to 1887, were not
intended to have the same effect, the General Allotment
Act of 1887 was the only point in history that Congress
could have even arguably intended to have altered such
a fundamental historical process. This is especially so in
the absence of some affirmative evidence that Congress
specifically intended to depart from that historical format,
either generally or in a certain case. (The United States
could not produce such evidence at the time—or, as a
matter of fact, ever.) The first opportunity for the
United States to advance the new revisionist theory of
the General Allotment Act argument in this Court came
in Mattz v. Arnett, supra. BUS, Co. App. 14a-15a.
2. Mattz v. Arnett, 412 U.S. 481 (1973). Although
the United States argued forcefully for the broad sweep
of Seymour tied to the General Allotment Act, this argu-
ment met with only limited success in Mattz. BUS, Co.
2 See the “whole cloth” disclaimer noted supra at 2.
7
App. 12a-14a. The history of the Klamath River Reserva-
tion at issue in Mattz was so tortious and fact specific,
isolated and atypical, that the Mattz dicta regarding the
General Allotment Act, while all that the United States
poner have hoped for, did not really seem pivotal to the
ision.
Ps ee the United States repeatedly told the Mattz
ourt:
The Act of 1892 can properly be understood only i
light of the General Allotment Act which aan
had recently passed.
In our view, the Act of June 17, 1892, can properl
be understood only in light of two cotaidineallons:
(1) what Congress had done five years ier i
General Allotment Act... . ee
The policy of the Act was to continue the reservation
system and the trust status of Indian land... .
This Court’s more recent decision in mour
Superintendent, 368 US. 351, is, in nar ee aoe
trolling here. . . . :
BUS, Co. App. at 10a, 14a, 24a (emphasi
also, id. at 11a, 15a n.8. (emphasis added). See
And at oral argument, the United States
. . . a squarely
placed this issue “into a little bit istori
er it of historical perspec-
This same policy is recognized more recent]
Court in Seymour v. Superintendent. . . ro ao
Tr. at 19-20, Mattz (No. 71-1182 }
+t ). See also, id. at 13
At the same time, to shore up this new General Allot-
ment Act argument and supplement this “little bit” of
historical perspective for the Court, the United States also
discussed certain Statutes that concededly disestablished
Indian reservations. According to the United States, the
Court could, by contrast, look to these examples in deter-
mining when congressional action was really intended to
disestablish an Indian reservation—an instant historical
perspective. BUS, Co. App. 18a-19a. Following Peti-
&
ioner’s lead in mour, and especially in light of this
aeacel the Fhe com opinion, the controlling example
cited by the United States of a congressional mandated
disestablishment was the 1892 Colville statute, where the
operative language restored the north half of the reserva-
tion to the public domain. As the United States told this
Court in Mattz, among other things:
This Court’s more recent decision in Seymour v. ns
intendent, 368 U.S. 351, is, in our view, con-
svalling here... . In holding that the Act did not
terminate the reservation there at issue, the Court
emphasized the absence from the Act of language
abolishing the reservations or “restoring that land to
the public domain” (368 U.S. at 355).
BUS, Co. App. at 24a (emphasis added).
Other examples were also listed by the United States
to support this “by contrast” argument, including a typical
cession. Id. at 18a-19a (the cession example merits spe-
cial attention infra).
At oral argument, the United States repeated the “by
contrast” point:
MR. SACHSE .. . In closing, since I assume I am
out of time, I refer the Court to page 17 of our brief
where we have samples of language that Congress
used when it did want to discontinue a portion of a
reservation.
Tr. at 20-21, Mattz (No. 71-1182).
(Except for the cession example, the text infra establishes
that the others on the list were representative of atypical
situations encountered by Congress only on rare occasions
and decades apart.)
Without question, the Mattz opinion reflects both argu-
ments made by the United States. First, with respect to the
General Allotment Act:
Its policy was to continue the reservation system and
the trust status of Indian lands, . ... See § 6 of the
General Allotment Act, 24 Stat. 390; United States
9
Department of the Interior, Federal Indian Law 115-
117, 127-129, 776-777 (1958). ...
. . . This Court unanimously observed in an analo-
gous setting in Seymour, id., at 356, .. .
Mattz, 412 U.S. at 496, 497.
Secondly, with respect to the “by contrast” argument,
the Court in Mattz noted:
More significantly, throughout the period from 1871-
1892 numerous bills were introduced which expressly
provided for the termination of the reservation and
did so in unequivocal terms. . . .
Congress has used clear language of express termina-
tion when that result is desired. See, for example... .
Id. at 504, n.22 (emphasis added).
Two years later, this Court was actually presented with
a typical surplus land statute specifically patterned and
enacted pursuant to the terms of the General Allotment
Act. With the supporting documentation of both the spe-
cific Act as well as the General Allotment Act, the Gen-
eral Allotment Act dicta in Mattz did not dissuade the
Court, including the author of the Mattz opinion, from
correctly concluding that surplus land statutes passed pur-
suant to the General Allotment Act were also intended and
routinely passed by Congress to disestablish Indian reser-
vations. DeCoteau v. District County Court, 402 US.
425, 447-449 (1975). Predictably, the United States
again argued forcefully for a different result in DeCoteau.
3. DeCoteau v. District County Court, 420 U.S. 425
(1975). In DeCoteau, the surplus land statute at issue
was one of eight similar agreements in a cession format
jointly ratified in an 1891 Appropriation Act. Each of
these agreements was specifically tailored to the provisions
in the General Allotment Act, which had recently been
passed after nearly a decade of focused debate. For
these two reasons, fortuitous in retrospect, the historical
record consisted of hundreds of pages directed to this
10
aspect of the General Allotment Act (Section 5) and the
effect the cession agreements were understood and intended
to have.
Moreover, for the first time, all of this primary docu-
mentation was excerpted and presented to the DeCoteau
Court in several hundred pages of briefs, setting forth a
complete and proper historical perspective. That perspec-
tive established that although simple allotment per se (Sec-
tion 6 of the General Allotment Act) was only intended to
disestablish reservations at some point in the foreseeable
future, a separate and distinct surplus land statute, in a
cession format, opening the reservation or a portion
thereof to settlement pursuant to Sec. 5 of the General
Allotment Act, was intended to disestablish the affected
reservation pro tanto (on the date of the opening set
forth in the Presidential Proclamation). This was in pre-
cisely the same manner that pre-1887 cessions had dis-
established reservations for decades, when Congress and/or
the President authorized similar legislation.
The United States elected to ignore the force of this
documentation, and instead urged the DeCoteau Court
to recognize the continuing existence of the original reser-
vation boundaries on the basis of Seymour and Mattz and
the United States’ revisionist theory of the General Allot-
ment Act. While agreeing that the focal point of the issue
had to be the General Allotment Act of 1887, the United
States pressed the point that Seymour and Mattz were
both openings pursuant to that Act, and that no Act pur-
suant to the General Allotment Act, was ever intended to
effect reservation disestablishment except at some future
point in time. (Again, as in the Brief for the United States
in Mattz, the United States blurred the distinction between
allotment per se (Section 6 of the General Allotment Act)
which eventually resulted in some non-Indian ownership
within the limits of Indian reservations, but was never
intended to immediately disestablish the reservations, and
surplus land statutes enacted pursuant to Sec. 5 of the
11
General Allotment Act, which repeatedly accomplished
this result). BUS, Co. App. 37a, 38a, 39a, 40a.°
In addition, the United States submitted a series of very
sophisticated arguments drawn from little scraps of lan-
guage found in Seymour and Mattz to support this general
proposition. No degree of sophistication, however, could
overcome the problem the United States never addressed:
namely, the fact that all of the contemporary historical
evidence irrefutably pointed to the opposite conclusion.
DeCoteau, 420 U.S. at 432, 434, 436, 438 and 441.
Further, the cession format utilized by Congress in pre-
vious decades—with the end result never questioned in
terms of reservation boundaries—was only slightly modi-
fied at this point in time (1887 through the early 1900’s).
As a result, the United States could only argue that the
cession format itself was probative of nothing because it
was not within the list of self-serving “by contrast” exam-
ples the United States now said Congress utilized when
Congress “clearly” intended to effectuate this result (the
list noted previously was compiled by the United States and
noted in Mattz, 4i2 U.S. at 497, n.19). In the original
version of the list presented to the Court in Mattz, the
United States had included representative cession language.
BUS, Co. App. 18a-19a. When that cession example did
not appear in the Mattz opinion, the United States omitted
any mention of this fact to the Court, simply adopted the
Mattz list and argued throughout DeCoteau that the
cession language was meaningless. /d. at 40a-41a.
Even without a specific historical point of reference, it
is difficult to believe that the DeCoteau Court would have
found this argument credible when actually presented with
a real cession Agreement. When all of the DeCoteau
documents conclusively established that the DeCoteau
cession format was still the rule at this point in time i.e.,
after the General Allotment Act, rather than the exception,
5 See also, Tr. at 11, 18, 17, 21, Erickson v. U.S. ex rel. Feather,
U.S. Sup. Ct. No. 73-1500, decided with DeCoteau v. District County
Court, 420 U.S. 425 (1975).
12
this argument was soundly rejected. Cession terminology
was “precisely suited” to disestablishment and the re-
mainder of the sophisticated arguments of the United
States were noted and rejected for that reason. DeCoteau,
420 US. at 445.
4. Rosebud Sioux Tribe v. Kneip, 430 US. 584
(1977). The United States subsequently resisted the force
of DeCoteau. In 1977, in Rosebud, this Court considered
three Sec. 5 surplus land statutes considered by Congress
a decade after the DeCoteau surplus land statutes were
- passed. The United States again argued that, after adopt-
ing the General Allotment Act, Congress never intended
this type of statute to disestablish portions of Indian reser-
vations. As in the past, reliance for this argument was
placed almost entirely upon Seymour and Mattz. In its
brief, the United States specially emphasized that Mattz
noted:
Placing the 1892 Act into the historic context of
the General Allotment Act of 1887, 24 Stat. 388,
the [Mattz] Court further observed that the Allot-
ment Act “permitted the President to make allot-
ments of reservation lands to resident Indians and,
with tribal consent, to sell surplus lands. Its policy
was to continue the reservation system. . .
BUS, Co. App. 65a (emphasis in original text).
In its discussion of DeCoteau, the United States failed
to mention the role played by Sec. 5 of the General
Allotment Act and the cessions in the DeCoteau process.
Id. According to the United States, DeCoteau was impor-
tant primarily because of the differences between the ces-
sion Act there and the Rosebud legislation, i.e., the uni-
lateral nature of the congressional action in Rosebud and
the uncertain payment in trust for the Rosebud land.
At oral argument, the United States repeatedly stressed
its revisionist theory of the General Allotment Act. The
United States maintained that after this Act, Congress
never intended reservation disestablishment. DeCoteau
was mentioned only in passing and then primarily to some-
13
how support continued reservation boundaries throughout
this period. Tr. at 20, 21, 27, 29, Rosebud (No. 75-562).
The Rosebud Court proceeded, in the most definitive
Opinion to date, to squarely address each and every argu-
ment—sophisticated arguments to be sure (and there were
many )—advanced in support of the Court restoring the
original boundaries of the Rosebud Reservation. Although
one or two minor exceptions might exist, a careful read-
ing of Rosebud, together with DeCoteau as recognized
historical background, establishes that the United States,
the Yankton Sioux Tribe and supporting Amici, can not
advance any argument of substance that has not already
been answered. (And, as in DeCoteau, the public domain
concept, whether expressed on the face of the act or in
the legislative history, was still important in Rosebud and
equated with reservation disestablishment. )
Unquestionably, as time went on, the cession format of
the earlier period was modified but these changes in format
reflect no change in congressional intent. Thus, it ulti-
mately mattered little that the 1904 Rosebud Act was
technically not a “cession.” As the Court in Rosebud
explained:
As a matter of strict English usage, petitioner is un-
doubtedly correct; “cession” refers to a voluntary
surrender of territory or jurisdiction, rather than a
withdrawal of such jurisdiction by the authority of
a superior sovereign. But as Mr. Justice (then
Judge) Holmes commented, we are not free to say
to Congress: “We see what you are driving at, but
er have p~ said it, = therefore we shall go on as
ore.” Johnson v. United States
(CAI 1908)... . Avatieioasaas
The use of the word “cession” in the 1904 Act,
which was not consented to by the required ex-
traordinary majority of the Tribe, does not make the
meaning of the Act ambiguous. . .
The word is technically misused bu ing i
quite clear. y t the meaning is
Rosebud, 430 U.S. at 597.
14
In the instant case, of course, the word “cession” is not
technically misused. And the United States’ comments re-
garding real cessions in Rosebud (alternatively, in an at-
tempt to distinguish DeCoteau), bear repeating now:
The court of appeals, however, failed to recognize
the crucial difference that in DeCoteau the United
States itself purchased the land in the reservation
pursuant to an agreement with the Indians; this, the
Court held, restored the land to the public domain
and extinguished the reservation. 420 U.S. at 446-
447.
Memorandum of the United States at 13, Rosebud Sioux
Tribe v. Kneip, 430 U.S. 584 (1977) (No. 75-562) (em-
phasis added).
... The 1891 Act was a straightforward cession for
a sum certain in amount. . . . These distinctions led
to the conclusion that the Lake Traverse Reservation
was extinguished and the land restored to the public
domain... .
BUS, Co. App. at 66a, see also id. at 67a (emphasis
added ).
The United States also reminded this Court of the 1934
Interior Department Opinion which they continued to rely
upon for traditional confirmation that real cessions dis-
established reservations:
In this way the exterior boundaries of a reservation
were further reduced. The lands thereby separated
from a reservation were no longer looked upon as
being part of that reservation.
54 Interior Dec. 560 (1934) (emphasis added), cited and
quoted in part in Memo. of the United States at 19-21
Rosebud (No. 75-562) and BUS,-Co. App. 79a (“The
Secretary noted that many reservation lands had been
ceded for a sum certain and concluded that ‘[t}]he lands
thereby separated from a reservation were no longer
looked upon as being a part of that reservation’” (54
I.D. at 560)). Id.
It is beyond dispute that both the Sisseton and the
Yankton reservation agreements are within the purview
15
of this analysis. For this reason, as the United States
pointed out, the list in the 1934 Opinion included some 26
“reservations.” It did not include either the Sisseton or
Yankton cession. BUS, Co. App. at 80a.
In oral argument, United States reiterated, by negative
implication, this same dominant point:
[W]henever Congress without a binding agreement
opens lands to white settlers, it does not pay for them
and does not guarantee any payment but only agrees
to act as trustee for future uncertain sales and leaves
the property interest in the Indians—as they did in
this case—that act does not remove the lands from
the boundaries of the Reservation.
Tr. at 22, Rosebud (No. 75-562) (emphasis added).
A few minutes later, the same cession distinction was
stressed in a different context:
[Ijn DeCoteau, which distinguishes both cases in a
case where sale was made for a sum certain and an
agreement was made, as counsel for the Tribe has
Id. at 28.
5. Solem v. Bartlett, 465 U.S. 463 (1984). In Solem,
the United States combined and restated so many varia-
tions of earlier arguments that even a summary review is
difficult to present here. Moreover, since the United States
did not participate in oral argument, that source is not
available. In short, however, it can be fairly stated that
the United States in Solem argued whatever was necessary
to resist reservation disestablishment.
Most important for the present case are the concessions
of the United States regarding cessions which were adopted
in the Court’s Opinion. Solem, 465 U.S. at 470, 473
n.15, 474, 476, 478. The Petition addresses these points.
Pet. Br. at 7, 15-16, 23.
For example, the United States said:
a ye different from the situation in DeCoteau
and Rosebud in at least the following respects: (1)
16
the relevant legislation contains no language of “ces-
ee 5 So See Se SP SER AEN AEE Se
oo the relevant area.
Br. for the United States as pa Curiae Supp’ng Resp’t
(opposing Pet. for Cert.) at 4 n.3, Solem (No. 82-1253)
(emphasis added).
On the merits, the cession theme was restated with un-
mistakable clarity:
The critical question remains whether the statute in-
voked worked an immediate and irrevocable ces-
sion. .
To be sure, as DeCoteau and Rosebud illustrate,
there are instances in which a Reservation must be
found to have been irrevocably terminated or dimin-
ished. . . . In the climate of the times, the only
meaningful question is whether the legislation meant
to accomplish a present, unequivocal and irrevocable
transfer of Reservation tends tee Ge Tribe to the
United States.
The critical fact in all these cases is that Congress
exacted a present and total surrender of all tribal
interest in the ceded land in return for an uncondi-
tional commitment by the United States to an agreed
payment... .
[T]he clear line between outright cession and mere
ae up of tribal lands was not always observed.
ut we do not read Rosebud as erasing the
traditional distinction.
What is relevant, however, is that, at the end of the
day, no cession resulted.
BUS, Co. App. at 103a, 109a, 110a, llla, 113a, 122a
(emphasis added).
In this light, it is not surprising that Solem repeatedly
made these same cession observations.
6. Hagen v. Utah, 510 U.S. 399 (1994). Hagen re-
flects the most recent views of this Court in resolving dis-
establishment issues. Due to the history of the Utah
legislation, the United States devoted most of its argu-
17
ments in Hagen—naturally in favor of a recognition of
original reservation boundaries—to “public domain” term-
inology. These arguments were generally rejected in
DeCoteau. Again, in Hagen this Court squarely rejected
them. (See supra at 4 n.1).
The United States also strongly argued that a cession
and sum certain agreement was broadly understood to
effect disestablishment:
[Njone of the relevant documents . . . uses the in-
disputable language of cession that was a feature of
all of the relevant documents in Rosebud. Moreover,
in our view, the requirement in Solem that the
“understanding” be “widely held” uires proof that
the Indians ~ He in an understanding that altera-
tion of the Reservation’s boundaries was at hand;
the only obvious manifestation of such an under-
standing on the part of the Indians is an agreement
of cession, like the one approved in Rosebud.
BUS, Co. App. at 150a (emphasis added). See also id.
at 138a, 141an.20, 142a, 143a, 149a.
Significantly, in this instance the United States also
participated in oral argument and made explicit repre-
sentations as to the effect of the use of cession language:
MR. MANN: .... [T]he language of cession. That
seems to be—that phrase seems to be the phrase
Congress used when it intended to alter the bound-
aries of a reservation.
QUESTION: Well, when it intended to alter the
— of the reservation by cession. That much
is c
Tr. at 26, Hagen (No. 92-6281).
The County certainly would not attempt to improve
upon the gist of this exchange. Nothing more need be
said on this point.
7. Yankton Sioux Tribe v. South Dakota, 796 F.2d
241 (8th Cir. 1986), cert. denied, 483 U.S. 1005
(1986). The United States has only had one opportunity
since DeCoteau (but before the present litigation) to tell
this Court specifically about the Yankton statute and how
18
it compared to the DeCoteuu statute. In that instance,
involving a lakebed, the comparison is also telling:
[T]he United States’ right to control Lakes Andes
and its bed, to the exclusion of the Yankton Sioux
Tribe, is in any event secured by the 1892 Cession
Agreement. . . . First, Article I is framed in terms
that this Court has repeatedly characterized as “ex-
press language of cession.” Oregon Dep't of Fish &
Wildlife v. Klamath Indian Tribe, No. 83-2148 (July
2, 1985), Slip op. 15 n.19; Solem v. Bartlett, 465
U.S. 463, 469 (1984). In DeCoteau vy. District
County Court, 420 U.S. 425, 445 (1975) (emphasis
added), this Court, in considering a similar
contemporaneous cession agreement, found that the
same language was “precisely suited” to the purpose
of conveying to the United States, “for a sum certain,
all of {the Indians’] interest in all of their unallotted
lands.”
Second, the retention of the lakebed by the Tribe
would have been inconsistent with the purposes of
the 1892 Cession Agreement. Those purposes con-
sisted not only of opening additional lands for non-
Indian settlement, but also of paving the way for
the anticipated end of the tribal way of life... .
BUS, Co. App. at 165a, 166a (emphasis on all in
original ).
While it remains to be seen what the United States
might tell this Court now, the County would submit that
in this excerpt in the 1986 Brief in Opposition, the
United States has already said everything worth saying
(“a similar and contemporaneous cession”). This
Yankton lakebed litigation was pending for over a
decade. Although reservation disestablishment was not
decided, the Yankton cession agreement was central to
the arguments for the United States and other parties. As
such, it was thoroughly reviewed and discussed in all
respects. At that time, Article XVIII of the Yankton
agreement, viewed in context, was not noteworthy and
did not even merit special attention in the argument of
the United States. (Not surprisingly, the position of the
19
United States on this issue was subsequently modified to
one that now supports the recognition of the original
Yankton reservation. Article XVIII figures prominently
in the new argument. )
8. Yankton Sioux Tribe v. Southern Missouri Waste
District, 99 F.3d 1439 (8th Cir. 1996). The United
States did not participate in this litigation in the district
court. In the court of appeals, the United States, as
amicus curiae, told the court that because the federal gov-
ernment retains jurisdiction over Indian country generally,
the continuing integrity of the exterior boundaries of In-
dian reservations is of “significant import.” Br. of the
United States at 1, Yankton Sioux v. Southern Missouri,
99 F.3d 1439 (8th Cir. 1996) (No. 95-2647). (The
United States did not mention the uncontested fact that
federal jurisdiction had not been exercised in this area for
over a century.)
Moreover, the United States argued, for the first time,
that it had a strong interest in protecting “the integrity of
reservation boundaries” because of its “special relation-
ship with Indian tribes.” 7d. The strength of this interest
presumably overpowered any inclination to present,
address, explain or defend any of the previous United
States’ cession arguments that were plainly inconsistent
with continued reservation status. The United States men-
tioned none of this and simply noted: “We do not agree
with the arguments raised by the County in its brief.
They are irrelevant to this case.” Id. at 19 n.11.
Only two points in the novel argument now advanced
by the United States in support of original reservation
boundaries are significant at this point in time. First, the
commendable concession that this Court’s 1914 Yankton
decision in Perrin v. United States, 232 U.S. 478 (1914),
“assumed” disestablishment. /d. at 19 n.10. And secondly,
that as late as 1985 the United States (and everyone
else) was continuing to make this same assumption:
{[T}he United States stated in a footnote in its brief
that, based on decisions of state courts in South
20
Dakota, the reservation had been diminished by the
1894 treaty.
Id. at 18 n.8.
The panel majority should have been more reluctant in
disregarding this venerable precedent.
CONCLUSION
For the foregoing reasons, and those stated in the Peti-
tion, the Petition for Writ of Certiorari should be granted.‘
Respectfully submitted,
MATTHEW F. GAFFEY Tom D. ToBIN
Charles Mix County Counsel of Record
State’s Attorney TOBIN LAW OFFICEs, P.C.
P.O. Box 370 422 Main Street
Lake Andes, SD 57356 P.O. Box 730
(605) 487-7441 Winner, SD 57580
(605) 842-2500
Dated: May 7, 1997
* The State and the County met with the Solicitor General of the
United States recently to request that the United States support
the Petition for a Writ of Certiorari (irrespective of differences
regarding the merits). Consistent with the submission of the
United States in Hagen, the County expects support should be
forthcoming if the Court invites the Solicitor General to express the
views of the United States. Br. for the United States as Amicus
Curiae (supporting Pet. for Cert.) at 15, Hagen (No. 92-6281). If
for any reason the Solicitor General declines to support the Petition,
it is respectfully submitted that the Court should consider that
view in the full light of the “litigation position” of the United
States in cases of this nature. In the past, this Court did exactly
that and granted certiorari in spite of the Solicitor General's
express recommendation to the contrary, when a conflict like this
was presented in 1984 involving the status of another reservation
in South Dakota. Br. for the United States as Amicus Curiae
Supp’ng Resp’t (opposing Pet. for Cert.) at 8, Solem (No. 82-1253).
Solem, 465 U.S. at 466 (“Because the Supreme Court of South Da-
kota has issued a pair of opinions offering a conflicting interpreta-
tion of the Act of May 29, 1908, we granted certiorari.”’).
payeeAr ree +
APPENDIX
APPENDIX TABLE OF CONTENTS
Memorandum for the United States, Seymour v. Super-
intendent, 368 U.S. 361 (1962) 2.2. -----.eececeeen ee
Brief for the United States as Amicus Curiae, Mattz
v. Arnett, 412 U.S. 481 (1973) .... oi
Brief for the United States as Amicus Curiae, DeCoteau
v. District County Court, 420 U.S. 425 (1975) ............
Brief for the United States as Amicus Curiae, Rosebud
Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ...
Brief for the United States as Amicus Curiae Support-
ing Respondent, Solem v. Bartlett, 465 U.S. 463 (1984) .
Brief for the United States as Amicus Curiae Support-
ing Petitioner, Hagen v. Utah, 510 U.S. 399 (1994)
po 8
128a
la
APPENDIX
IN THE
SUPREME COURT OF THE UNITED STATES
OcToOBER TERM, 1960
No. 8 Misc.
PAUL SEYMOUR, PETITIONER
Vv.
MERLE E. SCHNECKLOTH, SUPERINTENDENT
OF WASHINGTON STATE PENITENTIARY
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Washington
MEMORANDUM FOR THE UNITED STATES
The Court has requested the view of the United States
as to whether the lands involved in the above-entitled case
are Indian lands.
The record in this case shows the land involved as
follows:
On the southwest corner of 6th Avenue and Jackson
Street (formerly 10th Street) in East Omak, Oke-
wogan County, Washington; that said premises are
more particularly described as Lot 9, Block 118 of
the government townsite of Omak and situated in
Section 36, Township 34, North Range, 26 E.N.M.
2a
According to the records of the Department of Interior,
this land is not held in a trust status for any Indian nor
is it held by an Indian subject to restrictions against alien-
ation. Nevertheless, it is the position of the Department
of Interor, with which the Department of Justice agrees,
that the land is “Indian country” as that term is defined
in 18 U.S.C. 1151.
18 U.S.C. 1151 provides in pertinent part that Indian
country means “all land within the limits of any Indian
reservation under the jurisdiction of the United States gov-
ernment, notwithstanding the issuance of any patent and
including rights-of-way running through the reservation.”
The land here is, in our view, “within the limits” of an
Indian reservation.
The Colville Reservation, as originally established by
executive order in 1872, was bounded on the north by the
international boundary and on the south by the Columbia
River. See Royce, Indian Land Cessions in the United
States, Washington Map 1, No. 536. That part of the
original reservation approximating the north half was
ceded to the United States and the reservation was di-
minished to approximately the south half in 1892. See
Royce, op cit., Washington Map 2, No. 717. While it
is true that the Act of March 22, 1906, 34 Stat. 80, made
provision for allotments on the diminished reservation
and authorized the sale and disposition of the unallotted
lands subject to payment of the proceeds of the sales to
the Indians, this did not destroy the existence of the
reservation. The Department of Interior continued to
recognize the entire diminished or “south half” as the
Colville Reservation. The Act of July 24, 1956, 70 Stat.
626, specifically provides in section | that “the undis-
posed-of lands of the Colville Indian Reservation, Wash-
ington, dealt with by the Act of March 22, 1906 (34
Stat. 80), are hereby restored to tribal ownership to be
held in trust by the United States to the same extent as
all other tribal lands on the existing reservation, subject
3a
to any existing valid rights.” Section 2 of that Act, au-
thorizing exchanges to effect land consolidation between
Indians and non-Indians in Okawogen County, provides
that the “acquisition of lands pursuant to this Act shall
be limited to lands within the boundary of the reserva-
tion.” This seems a clear recognition by Congress that
lands opened under the Act of 1906 are still within the
existing boundaries of the Colville Reservation.
Since it is the boundaries of the reservation, rather
than the fee title to the property, which is controlling
under 18 U.S.C. 1151, the land in issue seems to us to be
in “Indian Country.” Hence, under 18 U.S.C. 1153, the
crime of burglary would be punishable by the United
States, and not the state.
Respectfully submitted.
J. Lee RANKIN,
Solicitor General.
SEPTEMBER 1960.
4a
IN THE
SUPREME COURT OF THE UNITED STATES
OcTOBER TERM, 1972
No. 71-1182
RAYMOND MATZ, PETITIONER
Vv.
G. RAYMOND ARNETT
. On Writ of Certiorari to the
California Court of Appeal, First District
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE
OPINIONS BELOW
The order of the Supreme Court of California denying
petitioner's application for review (Pet. App. C) was
entered on December 16, 1971. The opinion of the
Court of Appeal, First District (Pet. App. A). is re d
at 20 Cal. App. 3d 729, 97 Cal. Rptr. 894.
JURISDICTION
On December 16, 1971, the Supreme Court of Cali-
fornia denied petitioner's application for review. A pe-
tition for a writ of certiorari was filed with this Court
on March 14, 1972, and was granted on January 15,
Sa
1973. This Court's jurisdiction rests on 28 U.S.C.
1257(3).
EXECUTIVE ORDER AND STATUTES INVOLVED
The Executive Order of October 16, 1891, I. Kappler,
Laws and Treaties 815 (1904), reads as follows:
EXECUTIVE MANSION OCTOBER 16, 1891
It is hereby ordered that the limits of the Hoopa
Valley Reservation in the state of California, a res-
ervation duly set apart for Indian purposes, as one
of the Indian reservations authorized to be set apart,
in said State, by Act of Congress approved April
8, 1864, (13 Stats. 39), be and the same are
hereby extended so as to include a tract of country
one mile in width on each side of the Klamath
River, and extending from the present limits of the
said Hoopa Valley reservation to the Pacific Ocean,
Provided, however, That any tract or tracts included
within the above described voundaries to which valid
rights have attached under the laws of the United
States are hereby excluded from the reservation as
hereby extended.
BENJ. HARRISON.
The Act of June 17, 1892, 27 Stat. 52, reads as follows:
Be it enacted by the Senate and House of Rep-
resentatives of the United States of America in Con-
gress assembled, That all of the lands embraced in
what was Klamath River Reservation in the State
of California, as set apart and reserved under au-
thority of law by an Executive order dated Novem-
ber sixteenth, eighteen hundred and fifty-five, are
hereby declared to be subject to settlement, entry,
and purchase under the laws of the United States
granting homestead rights and authorizing the sale
of mineral, stone, and timber lands: Provided, That
any Indian now located upon said reservation may, at
6a
any time within one year from the passage of this
act, apply to the Secretary of the Interior for an
allotment of land for himself and, if the head of a
family, for the members of his family, under the pro-
visions of the act of February eighth, eighteen hun-
dred and eighty-seven, entitled “An act to provide
for the allotment of lands in severalty to Indians on
the various reservations, and to extend the protec-
tion of the laws of the United States and the Terri-
tories over the Indians, and for other purposes,” and,
if found entitled thereto, shall have the same allotted
as provided in said act or any act amendatory
thereof: Provided, That lands settled upon, improved,
and now occupied by settlers in good faith by quali-
fied persons under the land laws shall be exempt
from such allotment unless one or more of said
Indians have resided upon said tract in good faith
for four months prior to the passage of this act. And
the Secretary of the Interior may reserve from settle-
ment, entry, or purchase any tract or tracts of land
upon which any village or settlement of Indians is
now located, and may set apart the same for the
permanent use and occupation of said village or
settlement of Indians. And any person entitled to the
benefits of the homestead laws of the United States
who has in good faith prior to the passage of this
act, made actual settlement upon any lands within
said reservation not allotted under the foregoing pro-
viso and not reserved for the permanent use and
occupation of any village or settlement of Indians,
with the intent to enter the same under the homestead
law shall have the preferred right, at the expiration
of said period of one year to enter and acquire title
to the land so settled upon, not exceeding one hun-
dred and sixty acres, upon the payment therefor of
one dollar and twenty-five cents an acre, and such
settler shall have three months after public notice
given that such lands are subject to entry within
7a
which to file in the proper land office his application
therefor; and in case of conflicting claims between
settlers the land shall be awarded to the settler first
in order of time: Provided, That any portion of said
land more valuable for its mineral deposits than for
agricultural purposes, or for its timber, shall be en-
tered only under the law authorizing the entry and
sale of timber or mineral lands: And provided fur-
ther, That the heirs of any deceased settler shall
succeed to the rights of such settler under this act:
Provided further, That the proceeds arising from the
sale of said lands shall constitute a fund to be used
under the direction of the Secretary of the Interior
for the maintenance and education of the Indians
now residing on said lands and their children.
Approved, June 17, 1892. [Bold type shows lan-
guage added by Senate amendment of House bill. |
18 U.S.C. 1151 reads as follows:
Except as otherwise provided in sections 1154 and
1156 of this title, the term “Indian country”, as used
in this chapter, means (a) all land within the limits
of any Indian reservation under the jurisdiction of
the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way
running through the reservation, (b) all dependent
Indian communities within the borders of the United
States whether within the original or subsequently
acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allot-
ments, the Indian titles to which have not been
extinguished, including rights-of-way running through
the same.
18 U.S.C. 1162 provides in relevant part:
(a) Each of the States or Territories listed in the
following table shall have jurisdiction over offenses
committed by or against Indians in the areas of
Indian country listed opposite the name of the State
or Territory to the same extent that such State or
Territory has jurisdiction over offenses committed
elsewhere within the State or Territory, and the
criminal laws of such State or Territory shall have
the same force and effect within such Indian country
as they have elsewhere within the State or Territory:
State or Territory of Indian country affected
* * *” bs
California All Indian country within
the State.
* * a *
(b) Nothing in this section shall authorize the
alienation, encumbrance, or taxation of any real or
personal property, including water rights, belonging
to any Indian or any Indian tribe, band, or com-
munity that is held in trust by the United States or
is subject to a restriction against alienation imposed
by the United States; * * * or shall deprive any
Indian or any Indian tribe, band, or community of
any right, privilege, or immunity afforded under Fed-
eral treaty, agreement, or statute with respect to hunt-
ing, trapping or fishing or the control, licensing, or
regulation thereof.
The California Fish and Game Code, Section 12300,
reads as follows:
Irrespective of any other provisions of law, the
provisions of this code are not applicable to Cali-
fornia Indians whose names are inscribed upon the
tribal rolls, while on the reservation of such tribe
and under those circumstances in this State where
the code was not applicable to them immediately
prior to the effective date of Public Law 280, Chap-
ter 505, First Session, 1953, 83d Congress of the
United States.
9a
QUESTION PRESENTED
Whether petitioner’s fishing nets were seized by the
State of California within Indian country as defined by
18 U.S.C. 1151 (62 Stat. 757, as amended by 63 Stat.
94).
INTEREST OF THE UNITED STATES
This brief is submitted in response to the Court’s of
October 10, 1972, inviting the Solicitor General to ex-
press the views of the United States in this case.
STATEMENT
This action was brought by the respondent, director of
the state Department of Fish and Game, for the forfeiture
of five nylon gill nets owned by the petitioner on the
ground that he used the nets in violation of California’s
fish and game laws. The nets were seized by a state game
warden on September 24, 1969. The nets were stored in
open containers upon land owned by a lumber company
within 200 feet of the Klamath River on land that had
once been part of the Klamath River Reservation and that
had been made part of the Hoopa Valley Reservation by
Executive Order in 1891 (Pet. App. A, p. 1; Pet. App.
B, pp. 4-5).
The petitioner intervened to resist the forfeiture alleg-
ing that he is an enrolled Indian of the Yurok (Klamath
River) Tribe, that the nets were seized within Indian
country as defined by 18 U.S.C. 1151, and that the Cali-
fornia law prohibiting use of the nets was therefore in-
applicable.
1 Having ruled that the land where the nets were seized was not
Indian country, the California courts did not reach the issue
whether, if the land is Indian country, petitioner is a beneficiary
of rights which either are preserved from state regulation by
18 U.S.C. 1162(b), supra, or entitle him to the exemption of Cali-
fornia Fish and Game Code, Section 12300, supra. See Pet. App.
A, pp. 1-2.
10a
The trial court held that the land where the nets were
seized was not “Indian country” within the scope of 18
U.S.C. 1151 and was not within an Indian reservation
within the meaning of California Fish and Game Code,
Section 12300, because the Act of June 17, 1892, which
had opened the Reservation for public purchase of excess
land had, in effect, terminated the twenty miles of the
reservation nearest to the Pacific Ocean (Pet. App. B,
pp. 1-2). The state Court of Appeal affirmed the decision
on the same grounds (Pet. App. A), and the Supreme
Court of California denied petitioner’s application for
review (Pet. App. C). Petitioner then filed a petition for
a writ of certiorari in this Court, which granted the
petition on January 15, 1973.
SUMMARY OF ARGUMENT
I. The events leading to the Act of June 17, 1892,
show that the Act did not terminate the portion of the
Hoopa Valley Reservation to which it applied. The sea-
ward twenty miles of the addition to the Hoopa Valley
Reservation had been the Klamath River Reservation.
Because of legal problems in maintaining multiple sepa-
rate reservations, the President, by Executive Order in
1891, had made the Klamath River Reservation part of
the Hoopa Valley Reservation. The reference in the 1892
act to “what was the Klamath River Reservation” merely
designates the portion of the addition to the Hoopa Valley
Reservation that had previously been a separate reserva-
tion. It does not indicate a congressional abolition of half
of the just created Hoopa addition.
The Act of 1892 can properly be understood only in
light of the General Allotment Act which Congress had
recently passed. In that Ast Congress maintained Indian
reservations but permitted allotments of land within reser-
vations to individual Indians and sales of surplus land to
non-Indians. The General Allotment Act, however, did
not require the President to make allotments within any
particular reservation. Consequently a number of Acts
lla
requiring allotments and disposal of surplus land within
particular reservations were passed. The 1892 Act was
such an Act. Nothing in the Act purports to terminate
the part of the reservation to which it applies. When
Congress has wished to terminate all or part of a reserva-
tion it has done so explicitly.
II. The consistent course of administrative and con-
gressional action subsequent to the Act of 1892 supports
the proposition that that Act did not abolish the Klamath
River portion of the Reservation. The Department of the
Interior, shortly after the passage of the Act, was re-
quired to determine whether allotments made under the
Act were allotments on or off a reservation. In a care-
fully reasoned and documented opinion the Department
in charge of administering the Act ruled that the Act
reconfirmed, rather than cast doubt upon, the continued
existence of the Reservation. This has been the consistent
view of the Department of the Interior, and has also been
the premise on which Congress has subsequently acted.
III. The decisions of this Court has consistently held
that Acts opening reservations or parts of reservations for
allotment and disposal of surplus land for the benefit of
the resident Indians do not thereby abolish the reserva-
tions. Seymour v. Superintendent, 368 U.S. 351, is, in
our view, controlling here. The Act of 1906 in question
in Seymour, 34 Stat. 80, was identical in effect to the
Act in question here. This Court held that that statute,
while requiring allotment and disposal of surplus land in
the Colville Reservation, did not thereby terminate the
Reservation. Moreover, although one of the primary pur- -
poses of the extension of the Hoopa Valley Reservation
was to secure the Indians’ fishing rights in the Klamath
River, nothing in the 1892 Act purported to terminate
those rights. An intent to take such rights without com-
pensation merely by implication should not be presumed.
12a
ARGUMENT
I. THE EVENTS LEADING TO THE ACT OF JUNE
17, 1892, 27 STAT. 52, AND THE ACT ITSELF
SHOW THAT THE ACT DID NOT TERMINATE
THE ADDITION TO THE HOOPA VALLEY RES-
ERVATION CREATED BY EXECUTIVE ORDER
on MONTHS BEFORE, ON OCTOBER 16,
A. The History of the Establishment of the Reserva-
tion
The Yurok Indians historically have been fishing people
who live on the lower Klamath River near the Pacific
Ocean, the area in question here. See Kroeber, Hand-
book of the Indians of California, p. 1 (1925) Their
very name means “downstream” in the language of the
adjacent Karok Tribe. Kroeber, supra, at p. 15.
On November 16, 1855, as authorized by the Act of
March 3, 1855 (10 Stat. 686, 699), President Pierce
set apart as an Indian reservation a strip of territory ex-
tending along the Klamath River for a width of one mile
on each side for a distance of twenty miles inland from
the Pacific Ocean. The area is a deep gorge, consisting
of craggy timberland rich in redwood and pine with little
arable land except at the river bank. The area was chosen
because the Indians had always lived there and had de-
pended largely on fish from the Klamath River for their
diet and trade.*
In his 1861 Annual Report (quoted in 33 I.D. at
216) the Commissioner of Indian Affairs described the
Reservation as follows:
? There are excerpts from Kroeber at A. 34-44.
* See 1858 Annual Report of the Commissioner of Indian Affairs,
p. 286, quoted in Crichton v. Shelton, 38 Decisions of the Depart-
ment af the Interior (1.D.) 205, 216. See also 33 I.D. at 205-206.
l3a
This reservation is well located, and the improve-
ments are suitable and of considerable value. There
is an abundance of excellent timber for fencing and
all other purposes, and at the mouth of the Klamath
river there is a salmon fishery of great value to the
Indians.
In 1861 the Klamath river flooded and destroyed many
of the Indian villages. This led the Interior Department
to attempt a temporary relocation of the Yurok and other
Klamath River Indians to a reservation on the Smith
River, but few left and most of those soon returned.*
The Smith River reservation was thereafter abolished.
In 1864 the Hoopa Valley Reservation, a 12-mile
square about 50 miles inland from the mouth of the
Klamath River, was created by administrative order au-
thorized by the Act of April 8, 1864 (13 Stat. 39) (later
confirmed by Executive Order of June 23, 1876, I Kap-
pler, supra, at p. 815). Its creation inadvertently cast
doubt on the continued /Jegality of the Klamath River res-
ervation (not on its occupation or use by Indians). This
was so because the Act of April 8, 1864, supra, which
authorized the President to create new Indian reserva-
tions within California, limited the number of new and
old reservations to four, and, arguably, the President had
exceeded that number. Indeed, in 1889 the Circuit Court
for the Northern District of California ruled that because
of the President's failure to list the Klamath River Reser-
vation as one of the four, it was no longer legally a reser-
vation. United States v. Forty-Eight Pounds of Rising
Star Tea, 38 Fed. 400.
It was in response to this decision that, in order to
preserve the Klamath River Reservation, President Har-
rison issued the Executive Order of October 16, 1891
(p. 2, supra) extending the Hoopa Valley Reservation to
* See Crichton, supra, 3 1.D. at 208.
® Act of July 27, 1868, 15 Stat. 198, 221.
l4a
the sea in a stri one-mile wide on each side of the Kla-
san bens op vo te tnchede Gee teomer Elamats Wiest
Reservation. In Donnelly v. United States, 228 U.S. 243,
this Court upheld the validity of the 1891 Executive
Order extending the Hoopa Reservation to the sea.
B. The Act of June 17, 1892 and the General
Allotment Act
In our view, the Act of June 17, 1892, can properly
be understood only in light of two considerations: (1)
what Congress had done five years earlier in the General
Allotment Act (Act of February 8, 1887, 24 Stat. 388)
and (2) the changes made in the 1892 Act during the
legislative process in order to incorporate Allotment Act
provisions in it.
1. By the 1880's and 1890's the Indians in the West
had given up vast areas of land, but they still had sub-
stantial holdings in the form of reservations, created by
treaty, executive order, or statute. During this period
there was much pressure on Congress to remove land
from these reservations and make it available for settle-
ment and exploitation by non-Indians. But there was also
considerable feeling that to do so would violate treaties
and generally break faith with the Indians who had been
induced to give up larger areas of land and to become
peaceful in return for federal protection and the reserva-
tions created for them. The General Allotment Act of
1887 was to some extent a congressional compromise of
these conflicting pressures and considerations.
The policy of the Act was to continue the reservation
system and the trust status of Indian land at least for
® Donnelly concerned a crime committed within the “connecting
strip” joining the former Hoopa and Klamath River Reservations.
The Court consequently did not specifically consider the effect of
the Act of 1892. However, it characterized it as “opening” that
part of the reservation to “settlement, entry and purchase,” 228
U.S. at 253, not as terminating or abolishing it.
1Sa
the time being, but to allot individual tracts to Indians
- (in trust) which they would be encouraged to farm.
When all the land had been allotted and the trusts had
expired, the reservation could be abolished.” In the mean-
time, since acreage limitations were put on the allott-
ments, there would usually be surplus land within reserva-
tions which could be made available to non-Indians. It
was hoped that the resulting juxtaposition of the two
races would be edifying to the Indians and encourage
them to adopt white ways."
While the General Allotment Act thus permitted the
President to make allotments of reservations lands and,
with tribal consent, to sell surplus lands, it did not require
him to do so. Congress, therefore, occasionally enacted
special legislation to assure that a particular reservation
would be opened for allotment and non-Indian settlement.
The Act of June 17, 1892, at issue in this case, is an
example of such legislation.°
Because of the General Allotment Act and these special
Acts opening land within reservations to settlement, it is
common today to have extensive non-Indian holdings
within reservations. As we show in point III, infra,
however, allotments to Indians and sales to non-Indians,
whether under the General Allotment Act or special
Acts, do not in themselves terminate the reservations or
even make the lands therein held by non-Indians cease
to be Indian country. Seymour v. Superintendent, 368
U.S. 351, 357-359; Ellis v. Page, 351 F.2d 250 (C.A.
10); State v. Molash, 199 N.W. 2d 591 (Sup. Ct. S.D.).
* The original trust period was to be 25 years, but those periods
have often been extended. See p. 21, infra.
* See, generally, United States Department of the Interior, Fed-
eral Indian Law, pp. 115-117, 127-129, 776-777 (1958).
® The policy of allotment and sale of surplus lands within reserva-
tions was repudiated in the Indian Reorganization Act of 1934,
48 Stat. 984 et seq., as amended, 25 U.S.C. 461 et seq.
16a
2. The ures of non-Indians to obtain some of
the land anh ceamntalle the redwood forests within the
Klamath River Reservation were particularly strong. In
1879, at the request of the Department of the Interior,
military forces were used to evict trespassers. Thereafter,
the Secretary decided in 1883 to make allotments to
Indians living on the reservation, but he revoked the
decision because of inadequate surveys and nothing further
was done at that time to make allotments or authorize
white settlement.” In October 1891, the President re-
affirmed the existence of the reservation by his Executive
Order incorporating it into an extension of the Hoopa
Valley Reservation (see p. 2, supra).
House Bill, H.R. 38, 52d Cong., Ist Sess., which after
amendment became the Act of 1892 at issue here, was
reported out of committee on February 5, 1892" and
was passed by the House on March 1, 1892," only
months after the President had reaffirmed the existence
of the reservation. The apparent purpose of the House
Bill" was to seck to open the reservation to non-Indian
interests without raising too much age une B ok
age did not to terminate t eserva
eal sonia cay we! created by the President, and it
did not purport to “diminish” the Reservation. Nor did
it call for the removal of the Indians.
The bill first designates, as the area to which it applied,
what was “Klamath River Reservation"—thus only the
seaward portion of the just created extension of the
Hoopa Valley Reservation. The bill opened the designated
1 See Annual Report of the Commissioner of Indian Affairs for
1885, quoted in part in Crichton, supra, 33 1.D. at 214.
1! H. Rept. No. 161, 52d Cong., 1st Sess.
12 23 Cong. Rec. 1598-1599.
with the
13 At pages 2-3, supra, we have set forth the 1892 Act
House language in normal type and the language added by the
Senate in bold type.
17a
portion of the Reservation for settlement under the home-
stead, mineral and timber laws. However, it recognized
that there were both Indian villages and settlements within
that part of the reservation and authorized the Secretary
of the Interior to set those apart for permanent use by
the Indians. The bill provided for confirmation of title
for non-Indians who had settled on reservation land not
constituting Indian villages or communities, and specified
that the funds derived from the sale of the land “shall
constitute a fund to be used under the direction of the
Secretary of the Interior for the maintenance and educa-
tion of the Indians now residing on said lands and their
children.” The House bill thus recognized a continuing
Indian community and a continuing federal responsibility
for Indians living in this portion of the reservation.
The Senate, however, was not satisfied that the House
bill adequately protected Indian interests; it amended the
bill and called for a conference with the House. 23 Cong.
Rec. 3918-3919. As a result of the Senate amendment,
the first two provisos of the Act were added (see p. 3,
supra, bold type). In these provisos the area in question
is referred to as a “reservation” and “any Indian now
located upon said reservation” is permitted to “apply to
the Secretary of the Interior for an allotment of land for
himself and * * * for the members of his family, under
the provisions of * * * [the General Allotment Act].”
In other words, the Senate, dissatisfied with the House
bill, which would have allowed non-Indian settlement
without first providing for Indian allotments, brought the
Act into line with the General Allotment Act, with the
difference that Congress ordered the opening rather than
leaving it to the President with the consent of the
Indians."*
'* Senator Dawes, the author of the General Allotment Act, sat
on the Conference Committee. See 32 Cong. Rec. 3919. Because
the House bill was significantly amended in the Senate and in the
Conference Committee before it was enacted, respondent errs in
18a
Nothing in the Act, or even in the House bill, purports
to abolish the Reservation. The reference in the Act to
“what was the Klamath River Reservation” merely iden-
tifies the part of the extension of the Hoopa Valley
Reservation to which the Act applied (see p. 15, supra).
The court below erred in relying on this descriptive
designation as indicating abolition of the Reservation.
When Congress has wished to abolish an Indian reserva-
tion, it has used direct and unambiguous language to
accomplish that purpose. For example, when Congress
abolished the nearby Smith River Reservation it stated y
[T]he Smith River reservation is hereby discontinued.
15 Stat. 221. And when several Oklahoma Reservations
were abolished, the tribes agreed to “‘cede, convey,
transfer, relinquish, and surrender, foreover and abso-
lutely, without any reservation’ all their claim in and to
the lands embraced within the designated reservation.
Ellis v. Page, 351 F.2d 250, 252 (C.A. 10).
In another example, Congress specified:
[T]jhe reservation lines of the said Ponca and
Otoe and Missouria Indian reservations be, and the
same are hereby abolished. 33 Stat. 218.
See also 68 State. 250 (providing for the abolition of
the Menominee Reservation): State v. Molash, 199 N.W.
relying (Br. pp. 5-7) on statements in the House Report accompany-
ing that bill which do not reflect the amendments designed to pro-
tect the interests of Indians living on the Reservation. Those
amendments are inconsistent with the statements in the House
Report (and with isolated similar statements by individuals during
the floor debates) that the Klamath River area was no longer being
used as a reservation—a statement as to which the Department
of the Interior later declared “the committee was apparently mis-
taken * * *” (Crichton, supra, 33 I.D. at 214). Moreover, although
the House Report is dated more than 5 months after the Executive
Order establishing the extension of the Hoopa Valley Reservation
(see p. 15, supra), it makes no mention of this highly significant
Presidential action affecting the land and people in question.
19a
2d, 591 (Sup. Ct. $.D.); Leech Lake Band v. Herbst,
334 F. Supp. 1001 (D. Minn.)
The contrast of these statutory provisions with the Act
at issue here is highly significant—particularly in light
of the 1892 Act’s provisions recognizing that Indians
individually and in villages and communities would con-
tinue to live in the area and would continue to be under
federal protection (see p. 4, supra).”
And there is nothing in the Act suggesting any loss of
fishing rights for the Indian residents of the area or
diminution of federal jurisdiction over the area.
il. THE CONSISTENT COURSE OF ADMINIS-
TRATIVE AND CONGRESSIONAL ACTION
SUBSEQUENT TO THE ACT OF JUNE 17,
1892, SUPPORTS THE PROPOSITION THAT
THE ACT DID NOT ABOLISH THE KLA-
MATH RIVER PORTION OF THE 1891 EX-
TENSION OF THE HOOPA VALLEY RESER-
VATION
Interpretation of a law by the government agency
responsible to administer it is entitled to great weight.
In 1893, pursuant to the 1892 Act and the General Allotment
Act, 161 allotments were granted to Indians residing on the
Klamath River part of the Hoopa Extension, thus demonstrating
a sizeable Indian community at the time the Act was passed. These
allotments averaged 60 acres each, totaling 9,762 acres, 40% of
the approximately 25,000 acres of the part of the reservation opened
for settlement. Finding of Fact No. 88, p. 57, Report of Commis-
sioner in Jessie Short, et al. v. United States, C.Cls. No. 102-63.
At the trial of the present case evidence was submitted showing
that petitioner’s mother holds such an allotment and that his fish-
ing was in the close vicinity of that allotment (A. 28-31).
In Jessie Short, pending in the United States Court of Claims,
the issue is whether the joining of the two reservations gave all
Indians residing therein rights in the whole or whether each group
has rights only within its original portion. Neither the United
States nor the other parties to that suit contest the continued
existence of the whole as an Indian reservation though the decision
of the California court of appeal in this case is, of course, noted.
a ge Ce
20a
Griggs v. Duke Power Co., 401 U.S. 424, 433-434;
Udall v. Tallman, 380 U.S. 1, 16. The consistent course
of administrative interpretation by the Department of
the Interior has been, and remains, that the Klamath
River Reservation was not abolished by the 1892 Act
and still survives.
In 1904 the Department of the Interior was required
to rule on whether an allotment made in the Klamath
River Reservation portion of the Hoopa Extension under
the Act of June 17, 1892, was an allotment within an
Indian reservation or outside a reservation. Crichton v.
Shelton, 33 1.D. 205. The question of the survival of
the Reservation after the 1892 Act was squarely pre-
sented. In a carefully reasoned and fully documented
opinion, the Department ruled that the challenged allot-
ments were allotments on a reservation, and that the 1892
Act, in authorizing such allotments, reconfirmed, rather
than cast doubt upon, the continued existence of the
Reservation. 33 I.D, at 219-220. This contemporaneous
interpretation of the 1892 Act was rendered, not by the
Bureau of Indian Affairs, but by the Department of the
Interior—the Department charged with administering the
Act both as to Indians (through the Bureau of Indian
Affairs), and as to non-Indian settlers (through the Land
Office ).
The opinion is significant not only for its holding, but
also for the thorough factual and historical background it
set forth at a time when the events were less remote.
Of particular importance here is the opinion’s carefully
documented statement that (33 I.D. at 217):
* * * the lands within the reservation are peculiarly
adapted to the purposes for which it was sct apart,
reference being had to the location of said lands and
the habits and necessities of the Indians [occupying
them]. There is little question that the prevailing
motive for setting apart the reservation was to secure
2la
to the Indians the fishing privileges of the Klamath
River. * * *
Testimony at a congressional hearing held in 1932"
confirms that the Department of the Interior still con-
sidered the seaward twenty miles of the Klamath River
to be an Indian reservation. O. M. Boggess, Superintend-
ent (for 12 years) of the Department’s Hoopa Indian
Agency, in a statement taken at Hoopa California, Sep-
tember 24, 1932, testified (A. 14):
Mr. Boccess. This reservation is 12 miles square
and then there is an extension | mile on each side
for an aditional 50 miles down the Klamath River
to the east [sic] coast.
Senator FRAzieER. Is it all connected?
Mr. Boccess. Yes; and it is all classed by the
Indian Office as one reservation.
Senator FRAZIER. What do they call this reser-
vation?
Mr. Boccess. They call it the Hoopa, and the
mile strips they call the Klamath.
The Department of the Interior today administers the
entire 1891 extension to the Hoopa Valley Reservation
as an Indian reservation. See note 15, supra.”
Moreover, after it authorized entry to surplus lands
in the 1892 Act, Congress also continued to treat the
Klamath River Reservation as an existing reservation.
Indians had continued to live on this part of the Hoopa
Extension (as they do today), but the trust period on
their allotments had expired in 1919. Instead of con-
sidering its responsibilities terminated in this area, Con-
6 (2d Congress, Survey of Conditions of the Indians in the
Ur ited States, Part 29, California, U.S. Printing Office 1934. See
/.. 12-16.
“' See, also, map of Indian Land Areas published by the Depart-
ment of the Interior in 1971, which we have lodged with the Clerk
of this Court.
22a
gress in the Act of December 24, 1942, 56 Stat. 1081,
25 U.S.C. 348a, extended “The period of trust on lands
allotted to Indians of the Klamath River Reservation
* * *” reimposing “the trust on certain lands allotted
to Indians of the Klamath River Reservation, California.
And in the Act of May 19, 1958, 72 Stat. 121, Congress
restored to tribal ownership 159.57 acres of “vacant and
undisposed-of-ceded lands * * * on the following named
Indian reservations * * * : Klamath River, California
* * * Compare Seymour v. Superintendent, 368 U.S.
351, 356.
Ill. THIS COURT’S DECISIONS INDICATE THAT
THE FOREGOING CONSIDERATIONS ES-
TABLISH THE CONTINUED EXISTENCE OF
THE RESERVATION
1. The Act of June 17, 1892, is only one of many
Acts which between 1887 and approximately 1913 opened
Indian reservations for allotments to individual Indians
and settlement of surplus lands by non-Indians.’** These
Acts are modifications of the General Allotment Act
designed to apply to specific reservations. While they
vary in detail, they rather uniformly provide for allot-
ments to individual Indians within the reservation, make
surplus land available to homesteaders, and provide that
the proceeds from the disposition of the surplus lands
will be used for the benefit of Indians on the reservation.
The question whether such Acts make either land allotted
to Indians or land patented to non-Indians no longer
18 See, e.g., Act of March 2, 1889, 25 Stat. 888 (Sioux Reserva-
tions), United States v. Nice, 241 U.S. 591; Act of March 22,
1906, 34 Stat. 80 (Colville Reservation), Seymour v. Superintend-
ent, 368 U.S. 351; Act of May 29, 1908, 35 Stat. 460 ( Cheyenne
River Reservation), United States ex rel. Condon vy. Erickson, 344
F. Supp. 777 (D. S.D.): Act of June 1, 1910, 36 Stat. 455 (Fort
Berthold Reservation), The City of New Town, North Dakota v.
United States, 454 F.2d 121 (C.A. 8); Act of February 14, 1913,
387 Stat. 675 (Standing Rock Reservation), State v. Molash, 199
N.W.2d 591 (Sup. Ct. S.D.).
23a
Indian country has been before the courts many times
and has been addressed by Congress in defining Indian
country in 18 U.S.C. 1151, pp. 4-5, supra. Both before
and after the enactment of 18 U.S.C. 1151, this Court
has consistently held that neither allotment nor sale of
land within a reservation terminates the reservation.
In United States v. Celestine, 215 US. 278, the Court
had to decide whether various patents of land made
within a reservation precluded federal jurisdiction over a
murder that might have occurred on patented land. The
Court held (id. at 284):
That the offense was committed within the limits
of the Tulalip Indian Reservation is distinctly charged
in the indictment and not challenged in the plea in
bar. Although the defendant had received a patent
for the land within that reservation, and although
the murdered woman was the owner of another tract
within such limits, also patented, both tracts re-
mained within the reservation until Congress ex-
cluded them therefrom.
The general principles stated by the Court was that “* * *
when Congress has once established a reservation all tracts
included within it remain a part of the reservation until
separated therefrom by Congress.” Jd. at 285. The Court
held that the patenting of allotments on the reservation
to individual Indians did not constitute such separation
and did not terminate the reservation.
Several ye*rs later in United States v. Nice, 241 U.S.
591, the Court was called upon to interpret the Act of
March 2, 1889, 25 Stat. 888, which, similarly to the Act
at issue here, required allotments to be made within
various Sioux reservations in accordance with the General
Allotment Act and which authorized the Secretary of the
Interior, with the consent of the tribe, to sell surplus land
after the allotments had been made. The Court held that
this Act did not terminate the reservation, since both the
24a
General Allotment Act and the Act in question “disclosed
that the tribal relation, while ultimately to be broken up,
was not to be dissolved by the making or taking of allot-
ments, and subsequent legislation shows repeated instances
in which the tribal relations of Indians having allotments
under the Act was recognized during the trust period as
still continuing.” 241 U.S. at 596-597. See also Wilbur
v. United States, 281 U.S. 206.
This Court’s more recent decision in Seymour v. Super-
inten ent, 368 U.S. 351, is, in our view, controlling here.
The 1906 Act in question in Seymour, 34 Stat. 80, was
identical in effect to the Act in question here. That Act
(1) provided for allotments to Indians under the provi-
sions of the General Allotment Act (Sec. 2); (2) re-
quired that surplus land be made available for homestead-
ing (Sec. 3); (3) required that surplus land not settled
by homestead be sold at auction (ibid.); and (4) provided
that the proceeds received from homesteading and sale be
used for the benefit of the Indians remaining on the reser-
vation (Sec. 6). In holding that the Act did not terminate
the reservation there at issue, the Court emphasized the
absence from the Act of language abolishing the reserva-
tion or “restoring that land to the public domain” (368
U.S. at 355) and the Act’s requirement that the proceeds
of sales of the land be used for the benefit of the Indians
(id. at 355-356). The Court also relied on the subsequent
interpretation of the Act by the Department of the Interior
(id. at 357) and the subsequent congressional restoration
to the tribe of undisposed of lands within the reservation
(id. at 356). All of these factors, which were con-
19 The Court in Seymour also rejected the State’s alternative con-
tention that the reservation, if 1fot totally abolished, had at least
been diminished to the extent of actual purchases of lands within
it by non-Indians. The Court held this contention inconsistent
with the definition of Indian country in 18 U.S.C. 1151 as including
“ ‘all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding
the issuance of any patent * * *.’” 368 U.S. at 357-358.
25a
trolling in Seymour, are also
trolling, here. also present, and equally con-
2. We note also that no mention is m i
ade in the Act
of June 17, 1892, of depriving the Indians of the Reans
Valley Reservation Extension of either their ownership
of the river bed or their fishing rights.”
In Donnelly v. United States, 228 US. 2 i
- Un , S. 243, 259, th
Court held that the river bed was part of that Recstaten
pe nc the importance of fishing to Indian life
Does the reservation include the bed of the Klamath
River? The descriptive words of the order are “a
tract of country one mile in width on each side of
the Klamath River and extending,” etc. It seems to
us clear that if the United States was the owner of
the river bed,*' a reasonable construction of this
language requires that the river be considered as in-
cluded within the reservation. Indeed, in view of all
the circumstances, it would be absurd to treat the
order as intended to include the uplands to the width
of one mile on each side of the river, and at the same
time exclude the river. As a mater of history it
plainly appears that the Klamath Indians established
themselves along the river in order to gain a sub-
sistence by fishing. The reports of the local Indian
agents and superintendents to the Commissioners of
Indian Affairs abound in references to fishing as
their principal subsistence, and the river is described
ingen extensive hearings in 1964 the Senate let die in com-
— Poacn- proposals to terminate Indian fishing rights on the
ast, Hearings before the Subcommittee on Indian Affairs
of the Senate Committee on Interior and Insular Affairs, on S. J.
rh and S. J. Res. 171, 88th Cong., 2d Sess. And Congress in
S.C. 1162(b) (p. 5, supra) in granting criminal and civil
jurisdiction over Indian country to c in §
ertain States .
cepted federally protected fishing rights. specifically ex
*! The Court held that it was. Jd. at 264.
26a
as running in a narrow canyon through a broken
country, the Indians as dwelling in small villages
close to its banks. [Emphasis added.]
See also Metlakatla Indians v. Egan, 369 U.S. 45; Choc-
taw Nation v. Oklahoma, 397 U.S. 620.
The obvious intent of specifically including the riverbed
and shore in the Hoopa Extension (Executive Order of
October 16, 1891) was to protect the right of the Indians
to fish. Nothing in the Act of 1892 purported to termi-
nate the Tribes’ ownership of the riverbed or their fishing
rights. An intent to take such rights without compen-
sation merely by implication should not be presumed.
Menominee Tribe v. United States, 391 U.S. 404. See
also Kennerly v. District Court of Montana, 400 U.S. 423.
CONCLUSION
The judgment of the California Court of Appeal should
be reversed and the case should be remanded for deter-
mination of the issues not reached by the courts below.
Respectfully submitted.
ERWIN N. GRISWOLD,
Solicitor General.
KENT FRIZZELL,
Assistant Attorney General.
Harry R. SACHSE,
Assistant to the Solicitor
General.
CARL STRASS,
GLEN R. GOoDSELL,
Attorneys.
MARCH 1973.
27a
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974
No. 73-1148
IN THE MATTER OF THE APPLICATION OF
CHERYL SpPIpER DeCOTEAU, PETITIONER
v.
Tue District COURT FOR THE
TENTH JupiIciAL District
On Writ of Certiorari to the
Supreme Court of South Dakota
No. 73-1500
Don R. ERICKSON, WARDFN, SouTH DAKOTA
STATE PENITENTIARY, PETITIONER
v.
JOHN LEE FEATHER, ET AL.
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
28a
QUESTION PRESENTED
Whether the Act of March 3, 1891, opening land
within the Lake Traverse Indian Reservation to non-
Indian settlement, granted the State of South Dakota
criminal and domestic relations jurisdiction over members
of the Sisseton,Wahpeton Sioux Tribe with respect to acts
done on such land patented to non-Indians.*
TREATY AND STATUTE INVOLVED
The Treaty of February 19, 1867, 15 Stat. 505, is set
forth in the Brief for Petitioner in DeCoteau at App.
1-6.
The pertinent provisions of the Act of March 3, 1891,
26 Stat. 989, are set forth in the Brief for Petitioner in
DeCoteau at App. 7-15.
STATEMENT
This brief supplements the memorandum submitted in
response to the Court’s order of April 29, 1974, inviting
the Solicitor General to express the views of the United
States in DeCoteau v. The District County Court, and
expresses the views of the United States in the closely
related case of Erickson v. Feather, certiorari was granted
in both cases on June 3, 1974.
1. DeCoteau v. District County Court (No. 73-1148)
In December 1971, the State of South Dakota brought
dependency and neglect proceedings in the District Court
1 It is common ground that, since South Dakota is not a “Public
Law 280 State” by original designation or subsequent election (see
Act of August 15, 1953, 67 Stat. 588: 18 U.S.C. 1162; 28 U.S.C.
1360), the State lacks civil and criminal jurisdiction over Indians
within the boundaries of a subsisting reservation, regardless of
whether the acts occurred on Indian trust lands or lands patented
to non-Indians. See 18 U.S.C. 1151. Accordingly, the question pre-
sented might be more simply stated as: Whether the boundaries
of the Lake Traverse Indian Reservation remain as originally
established by the Treaty of 1867.
29a
for the Tenth Judicial District of South Dakota against
petitioner DeCoteau, an enrolled member of the Sisseton-
Whapeton Sioux Tribe, seeking to terminate her parental
authority over her minor children, Robert Lee Feather
and Herbert John Spider, also enrolled members of the
Tribe. The parties stipulated that all of the facts giving
rise to the court's order occurred within the boundaries
of the Lake Traverse Reservation, as established under
the Treaty of February 19, 1867, supra, approximately
half on allotted Indian land, and the other half on land
patented to non-Indians (Decoteau, Pet. App. A. 2a; Pet.
App. B, 9a). Both children were placed in foster homes
by the county court.
On August 4, 1972, Mrs. DeCoteau moved in the
county court for dismissal of the proceedings and return
of her children to her on the ground that all the incidents
giving rise to the proceedings involved Indians and oc-
curred on the Reservation and that the court therefore
lacked jurisdiction. The county court denied the motion.
Mrs. DeCoteau then petitioned in the South Dakota
Circuit Court for the Fifth Judicial Circuit for a writ of
habeas corpus. That court denied the writ (DeCoteau,
Pet. App. B). While it found that Mrs. DeCoteau and
the two children are enrolled members of the Sisseton-
Wahpeton Sioux Tribe (DeCoteau, Pet. App. B, 8a), it
ruled that the county court had jurisdiction to entertain
the dependency and neglect proceedings because some of
the alleged incidents occurred on non-Indian owned land
within the original boundaries of the Reservation, and,
in the court’s view, “the non-Indian patented land * * *
~ 4 within the Indian Country” (DeCoteau, Pet. App.
, ).
The Supreme Court of the State of South Dakota
affirmed (DeCoteau, Pet. App. A). It held that the effect
of the agreement between the United States and the Tribe
dated December 12, 1889, and the Act of March 3,
30a
1891, 26 Stat. 989, 1036, ratifying that agreement, was
to separate from the Reservation all lands not allotted to
Indians, and, because some of the incidents occurred on
such land, the State courts had jurisdiction over the
family relationships at issue.
2. Erickson v. Feather, et al. (No. 73-1500)
The ten respondents in this case are all enrolled mem-
bers of the Sisseton-Wahpeton Indian Tribe. They were
all tried and convicted in the courts of South Dakota for
alleged crimes committed within the Treaty boundaries of
the Lake Traverse Reservation, but not upon trust land.
At the time this suit was instituted they were incarcerated
in the South Dakota State Penitentiary (Erickson, Pet.
App. A, 3a). They petitioned in the United States district
court in South Dakota for writs of habeas corpus on the
ground that the State of South Dakota did not have
jurisdiction to try, convict, and sentence them because
their alleged criminal acts took place within the boundaries
of the Lake Traverse Reservation (Erickson, Pet, 2).
The district court, on stipulation that “the alleged crime
was committed within the confines of the Sisseton-Wahpe-
ton Indian Reservation but not upon trust land * * *,”
denied the writs (Erickson, Pet. App. B, 10a-19a).
The Court of Appeals for the Eighth Circuit reversed
(Erickson, Pet. App. A, 7a-9a). After reviewing the de-
cisions of this Court, and its prior decisions on the effect
of opening reservations to non-Indian settlement, the court
stated (id. at 6a):
The case before us is not unlike Seymour [v.
Superintendent, 368 U.S. 351] Mattz [v. Arnett,
412 U.S. 481] and Condon [United States ex rel.
Condon v. Erickson, 478 F.2d 684 (C.A. 8)].
The overall climate of legislative activity concerning
Indian reservations during the period from 1887
through 1910 received its primary impetus from the
3la
General Allotment Act. See Cohen, supra at 78-80,
($$ 11-13). The 1891 Act, by its express terms, re-
fers to the General Allotment Act of 1887. Just as
in the beforementioned three cases, the reservation
here was not sold to the government outright but
merely opened for settlement under the homestead
laws and the 1887 general allotment plan. Allot-
ment and homesteading do not suggest congressional
purpose to terminate the reservation. Seymour,
supra.
The Court found no evidence in the 1891 Act's legisla-
tive history of a congressional intent to do other than
open the Reservation for non-Indian settlement (Erick-
son, Pet. App. A, 8a), and noted that the State Supreme
Court had recently denied state jurisdiction in a similar
situation in State v. Molash, 199 N.W. 2d 591. The court
of appeals concluded that the boundaries of the Lake
Traverse Reservation remain as established by treaty and
the State of South Dakota had no jurisdiction to try the
respondents (Erickson, Pet. App. A, 8a-9a).
3. The Reservation and the Tribe
The Sisseton and Wahpeton Sioux were a portion of
the Sioux Nation who, in the Sioux outbreaks of 1862.
did not rebel against the United States. Some “freely
perilled their lives during that outbreak to rescue the resi-
dents of the Sioux reservation, and to obtain possession
of white women and children made captives by the hostile
bands.” Others fled, “fearing the indiscriminate vengeance
of the whites” (Treaty of February 19, 1867: DeCoteau.
Pet. Br. App. 1).
In 1867 the United States made a treaty with the
Sisseton-Wahpeton Tribes in which the Tribes “cedefd]
to the United States the right to construct wagon-roads,
railroads * * * and other such public improvements * * *
across the lands claimed by said bands (including their
32a
reservation as hereinafter designated) * * * ” (id. at 2;
Art. 2). In consideration for the cessions made and serv-
ices rendered by the Tribes, the United States established
for these Tribes “as a permanent reservation” a triangular
tract of land that became known as the Lake Traverse
Reservation (id. at 3: Art. 3).2 The Treaty further
provided (id. at 6; Art. 10):
The chiefs and head-men located upon either of
the reservations® set apart for said bands are au-
thorized to adopt such rules, regulations, or laws for
the security of life and property, the advancement of
Civilization, and the agricultural prosperity of the
members of said bands upon the respective reserva-
tions, and shall have authority, under the direction
of the agent, and without expense to the Govern-
ment, to organize a force sufficient to Carry out all
such rules, regulations, or laws, and all rules and
regulations for the government of said Indians, as
may be prescribed by the Interior Department:
Provided, That all rules, regulations, or laws adopted
or amended by the chiefs and head-men on either
reservation shall receive the sanction of the agent.
On December 12, 1889 the Sisseton-Wahpeton Sioux
entered into an agreement with the United States pro-
viding that, in accordance with the Act of February 8,
1887 (the General Allotment Act, 24 Stat. 388), the
Tribes do (DeCoteau, Pet. Br. App. 8):
* In connection with our brief amicus curiae in Antoine v. The
State of Washington, No. 73-717, this Term, we lodged with the
Clerk copies of the U.S. Department of the Interior, Bureau of
Indian Affairs Map, “Indian Lands and Related Facilities as of
1971.” That map shows the Lake Traverse Reservation at issye
here. We are supplying copies of the map to counsel herein. We
have also appended to this brief a diagram sowing the location
of trust and tribal lands within the Reservation. This diagram
is taken from a more detailed but bulky map prepared by the
Bureau of Indian Affairs which we are lodging with the Clerk.
5 Article 4 of the Treaty also established the Devil’s Lake Reser-
vation in North Dakota.
33a
* * * hereby cede, sell, relinquish, and convey to
the United States all their claim, right, title, and
interest in and to all the unallotted lands within the
limits of the reservaiton set apart to said bands of
Indians as aforesaid remaining after the allotments
and additional allotments provided for in article four
of this agreement shall have been made.
The agreement also provides that, in addition to certain
settlements of past claims and indemnities, the Indians
shall receive $2.50 for each acre of land conveyed, to be
deposited in the Treasury and used “for the education
and civilization of the said bands of Indians * * * as
provided in section five [of the General Allotment Act
of 1887] * * *”) id. at 9).
The ratifying Act of March 3, 1891, after reciting the
Agreement in full, provides, among other things, that the
land ceded by the Indians shall be—
subject only to entry and settlement under the home-
stead and townsite laws of the United States, except-
ing the sixteenth and thirty-sixth sections of said
lands, which shall be reserved - ye ge —
purposes, and be subject to the laws e State
wherein located * * *. [id. at 15.]
In accordance with the Act of 1891 a large amount
of land within the Reservation was patented to non-
Indians. A large amount also remains Indian trust land.
The State Circuit Court in DeCoteau found as a fact
(DeCoteau, Pet. App. B, 9a, finding IX):
That lots or tracts of non-Indian patented or
deeded land and lots or tracts of unpatented Indian
trust land are interspersed in a crazy-quilt pattern
*The Agreement provided that the money was to earn interest
at 3% and be available for appropriation by Congress. The 1891
Act raised the interest rate to 5% and authorized the President,
without further congressional action, to use any part of the funds
for the “education and civilization” of the Tribe (id. at 14).
34a
Over the entire area within the boundaries of the
Lake Traverse Indian Reservation as established by
the treaty of February 19, 1867.
The Sisseton-Wahpeton Sioux Tribe has remeained a
major Indian Tribe. Its present enrolled membership is
6,010, of whom 3,200 live on or near the Lake Traverse
Reservation. The Tribe has a Constitution and by-laws
approved by the Secretary of the Interior, In addition to
having an active tribal government, it operates, with
federal assistance, its own police force (presently 14
Persons) and maintains a tribal court with two judges
and various other personnel.°
It is the position of the United States, in accord with
the decision of the Eighth Circuit in Erickson, that the
Act of March 3, 1891, did not disestablish the Lake
Traverse Indian Reservation and that the State of South
Dakota is without jurisdiction over the domestic affairs
or alleged criminal acts of Indians arising within the
boundaries of the Reservation as established by the Treaty
of February 19, 1867.
SUMMARY OF ARGUMENT
The essential question presented by these cases is
whether the Act of March 3, 1891. by which unallotted
land within the Lake Traverse Reservation was opened
for settlement by non-Indians, removed that land from
the Reservation. In approaching the question it is im-
portant to bear in mind that an Indian reservation does
not connote total Indian or federal ownership of the land
within it. It refers to a geographical area within which
the legislative authority of the Tribe functions and the
area within which federal rather than state criminal
‘urisdiction applies in matters affecting Indians.
* Information supplied by the Sisseton-Wahpeton Agency of the
Bureau of Indian Affairs.
35a
domain, and its repeated references to the General Allot-
ment Act show that Congress intended no more than to
“open” the Reservation for non-Indian settlement. This
Court's decisions in Seymour v. Superintendent, 368 U.S.
351, and Mattz v. Arnet, 412 U.S. 481, show that this
limited purpose is consistent only within preservation of
the Reservation as a jurisdictional unit. The special pro-
visions of the Act as to the 16th and 36th sections also
show that Congress did not regard the opening of the
Reservation as altering its boundaries.
Subsequent administrative and legislative actions con-
firm that the 1891 Act did not disestablish the boundaries
of the Reservation. The President, in proclaiming the
availability of lands for settlement after passage of the
Act, described them as “land embraced in said reserva-
tion” and “lands within the Lake Traverse Reservation
opened to settlement” (infra, p. 22). And the Depart-
ment of the Interior has held the boundaries of the Reser-
vation to be unaffected by the 1891 Act. Recently Con-
gress has authorized the Secretary of the Interior to pur-
chase lands “within the boundaries of the Lake Traverse
Reservation” for the use of the Tribe and has restored
to the Tribe certain federal lands within the Reservation.
These acts strongly affirm the continued existence of the
Reservation as a unit of federal and Indian jurisdiction.
Moreover, given the scattering of trust lands through-
out the Reservation, the State’s position would be de-
structive of law and order on the Reservation. Since the
State here (being a non-Public Law 280 State) can assert
no jurisdiction over Indians on trust lands, federal and
trival jurisdiction over Indians everywhere within the
Reservation’s treaty boundaries is required for effective
law enforcement.
Similarly, the Tribes’ civil jurisdiction over the Reser-
vation Indians, a basic part of tribal self-government,
should not depend on the title to the lot within the Reser-
vation where a particular act takes place. There is no
36a
reason to believe that Congress intended so to impede
the Tribe’s right to govern its own people. Accordingly,
the judgment of the Eighth Circuit in Erickson should be
affirmed, and the judgment of the Supreme Court of
South Dakota in DeCoteau should be reversed.
ARGUMENT
I
THE ACT OF MARCH 3, 1891, DID NOT ALTER
THE BOUNDARIES OF THE RESERVATION
AS ESTABLISHED IN THE TREATY OF FEB-
RUARY 19, 1867
Article 3 of the Treaty of February 19, 1867 (De-
Coteau, Pet. Br. App. 3), granted the Sisseton and Wah-
peton Sioux Indians a permanent Reservation with definite
boundaries. Article 10 of that treaty (id at 6) granted
the Tribes within the Reservation the right to make their
own laws and be governed by them, subject to the super-
vision of the United States. The basic question in this
case is whether the Act of March 3, 1891, which clearly
Permitted non-Indian settlement within the Reservation,
also altered the boundaries of the Reservation. In con-
sidering that issue we must remember that an Indian
reservation does not connote total Indian or federal own-
ership of the land within it. It refers to a geographical
area within which the legislative authority of a tribe
functions. Worcester v. Georgia, 6 Pet. 515; McClanahan
Vv. Arizona State Tax Commission, 411 U.S. 164. It also
describes the area within which federal Criminal jurisdic-
tion in matters affecting Indian applies, 18 U.S.C. 1151,
and the area within which services of the Bureau of
Indian Affairs are primarily directed, Morton v. Ruiz,
415 U.S. 199, Accordingly, the fact that portions of the
land within the Reservation are owned by non-Indians is
immaterial. The controlling question is whether Congress
deliberately terminated or changed the boundaries of the
Reservation by the Act of 1891.
37a
1. The General Scheme of the 1891 Act Suggests
No Change in the Reservation’s Boundaries
The 1891 Act begins by ratifying and quoting in full
the 1889 Agreement made between the Tribe and the
United States. The Agreement, in its preamble, twice
States that it is made under the authority of the Act of
February 8, 1887, the General Allotment Act, and quotes
from that Act the language which authorizes the Presi-
dent, after allotments have been made, to negotiate with
Indian tribes for the sale of their unallotted lands (De-
Coteau, Pet. App. C, 13a). The Agreement then spe-
cifically provides for the sale of the unallotted land of this
Tribe “within the limits of the reservation” (id. at 14a;
emphasis added), and directs that the payment shall be
deposited in the Treasury to be appropriated by Congress
for the “education and civilzation” of the Indians (ibid.).
The Act of 1891 added to the agreement a further refer-
ence to the General Allotment Act (id. at 19a, sec. 29)
and the proviso that the lands ceded shall:
be subject only to entry and settlement under the
homestead and townsite laws of the United States,
excepting the sixteenth and thirty-sixth sections of
said lands, which shall be reserved for common
school purposes, and be subject to the laws of the
State wherein located. [/d. at 20a.] °
*The background of the negotiation of the 1889 Agreement
and the enactment of the 1891 Act are exhaustively set out in
the brief of respondent. In our view, essentially two points are
established: first, the non-Indian inhabitants of South Dakota in-
tensely desired the opening of the Lake Traverse Reservation for
settlement by non-Indians (see DeCoteau, Resp. Br., 16); second,
the Tribe, which had endured four years of drought, was badly
in need of money. See E. Ex. Doc. No. 66, 51st Cong., Ist Sess.,
p. 19. Neither of these facts, however, in any way implies that the
boundaries of the Reservation had to be or were reduced. Indeed,
the only money immediately paid to the Tribe was not part of the
consideration for the lands “ceded” but about $500,000 conceded
to be due for scout services and a cancelled annuity. For the
38a
Several things are immediately apparent. The negotia-
tion with the Indians, the allotments to them, and the
cession made by them are expressly made under the au-
thority of the General Allotment Act. The boundaries of
the Reservation are not expressly altered and no separately
described portion of the Reservation is vacated, returned
to the public domain, or set aside for settlement. The
government is not free to use the opened land for any
purpose, but only for homesteading, townsites and school
land. The tribal relationship is expressly continued and
monies from the sale of the land are not distributed but
are Kept in trust to be appropriated by Congress or ap-
plied by order of the President for the “education and
civilization” of the “bands of Indians or members thereof”
(id. at 19a). Thus, on the face of the Statute, it does not
appear that Congress intended to change the boundaries
of the Lake Traverse Reservation.
2. The References to the General Allotment Act
Show the Reservation Was Maintained
Both the 1889 Agreement and 1891 Act were adopted
pursuant to the General Allotment Act of 1887. The
Philosophy of the latter Act was succinctly stated in
Mattz v. Arnett, 412 U.S. 481, 496:
[The General Allotment Act] permitted the President
to make allotments of reservation lands to resident
Indians and, with tribal consent, to sell surplus lands.
Its policy was to continue the reservation system and
the trust status of Indian lands, but co allot tracts to
individual Indians for agriculture and grazing.
It was not the purpose of the General Allotment Act
to divide reservations into a Scattering of land under fed-
eral jurisdiction and a scattering under state jurisdiction.
future, the Indians expected to have expended on their behalf the
interest on the amount nominally deposited in the Treasury in
“payment” for the land, approximately $80,000 annually (when
the interest rate was raised to 5%).
39a
Seymour v. Superintendent, 368 U.S. 351, 357-358.
Rather, as this Court stated in Mattz, supra, 412 U.S. at
497, quoting from Seymour, supra:
“The Act did no more [in this respect] than open
the way for non-Indian settlers to own land on the
reservation in a manner which the Federal Govern-
ment, acting as guardian and trustee for the Indians,
regarded as beneficial to the development of its
wards.”
Nor was it the intent of the General Allotment Act to
disturb tribal relations prior to the time that the trust
Status of allotments should be abolished. In United States
Vv. Nice, 241 U.S. 591, 596-597, the Court stated:
[The General Allotment Act] disclosed that the tribal
relation, while ultimately to be broken up, was not to
be dissolved by the making or taking of allotments,
and subsequent legislation shows repeated instances
in which the tribal relation of Indians having allot-
ments under the act was recognized during the trust
Period as still continuing.
In sum, while the General Allotment Act of 1887 pro-
vided for some settlement of non-Indians within reserva-
tions, the congressional intent was to continue the reser-
vation system and to maintain established relations with
the Tribes and federal trust responsibility over the reser-
vations until these protections were no longer necessary.
The 1889 Agreement and 1891 Act were adopted in con-
formity with this policy and should not be held to have
tacitly abolished or diminished the Reservation here in
question.
40a
3. The Absence of Language in the 1891 Act Ex-
pressly Altering the Boundaries of the Reserva-
tion-or Returning Land to the Public Domain
Shows That the Reservation Boundaries Were
Not Altered
In Mattz v. Arnett, supra, this Court stated (412 U.S.
at 504-505; footnote omitted ) :
Congress [in 1892] was fully aware of the means by
which termination could be effected. * * * The
Court stated in United States v. Celestine, 215 US.,
at 285, that “when Congress has once established a
reservation all tracts included within it remain a part
of the reservation until separated therefrom by Con-
gress.” A congressional determination to terminate
must be expressed on the fact of the Act or be clear
from the surrounding circumstances and legislative
history. See Seymour v. Superintendent, 368 U.S.
351 (1962); United States v. Nice, 241 U.S. 591
(1916).
In a footnote, the Court gave the following examples
of termination language [Mattz, supra, 412 U.S. at 504,
n. 22]:
1. 15 Stat. 221 (1868) (“the Smith River reserva-
tion is hereby discontinued” ).
2. 27 Stat. 63 (1892) (* * * the North Half of the
Coleville Indian Reservation] “the same being a
portion of the Colville Indian Reservation * * *
be, and is hereby vacated and restored to the
public domain”).
3. 33 Stat. 218 (1904) (“the reservation lines of
the said Ponca and Otoe and Missouria Indian
reservations be, and the same hereby abolished”).
There is no such language in the 1891 Act at issue here.
The Reservation is not discontinued. A discrete portion
of it is not “vacated and restored to the public domain.”
The reservation lines are not abolished.
4la
Moreover, to read into the language opening unallotted
lands for settlement an intent to remove them from the
Reservation would inevitably create a reservation with
crazy quilt boundaries, a result that both Congress (see
18 L,
aa 1151) and this Court have reasonably sought
a. The State argues that the provisions “ceding” the
unallotted portion of the Reservation to the United States
tacitly removes that land from the Reservation.
There are several reasons why this is not so. First
the cession is not an outright return of the land to the
public domain but a transfer expressly for the limited
purpose of opening the land for homesteading in accord-
— with the General Allotment Act. Thus, though the
ndians in the cession” expressed their willingness that
the government dispose of unallotted land, the govern-
ment remained under a trust responsibility to dispose of
it In a certain way, assumed to be in the Indians’ interest
as well as that of the government.
That a “cession” of unallotted land within a r
does not of itself disestablish the reservation is aimieined
by this Court’s decision in Ash Sheep Co. v. United States
252 U.S. 159. The question was whether the defendant
a grazed its: sheep on public land, which was entirely
hen ition ot 3 ane aetna oI
(252 US ot 164); . The lands involved were
within the part of the Reservation as to which the
7 tJ ~ gage yw and relinquished”
i their “ri
cf ir “right, title and
Nevertheless, the Court held that the lands remained in
Indian ownership until actually sold to homesteaders be-
is at
Sheep Co. at least indicates that the use of the word
“cede” does not always imply a termination of
federal relationship as to the land “ceded”.
b. The State, however, argues (see DeCoteau, Resp.
Br. 59-65) that because the Tribe was paid a “sum-
certain” for the unallotted land, with the government re-
couping its money as the iands were sold, rather than
being paid as the lands were sold to homesteaders, the
conveyance to the government should be held to have re-
moved the lands from the Reservation. We see no reason
so to conclude.
The payment, realistically, was no more immediately
available to the Tribe than if it had been paid only as
each tract was sold. The monies stipulated as payment
for the lands ceded were to be deposited in the United
States Treasury, and the expectation was that only the in-
terest on this trust fund would be expended, and then only
as found necessary for the benefit of the Tribe by the
President or Congress. As Congressman Call explained:
* * * The amount is reimbursed, so that it is but
a nominal appropriation. The entire amount come
back into the Treasury. It is nothing but a loan of
the public credit of the United States to the ac-
complishment of these purposes [of the General Allot-
ment Act] and in no respect touches the taxation
upon the people of this country.
Mr. President, there has been a great deal of ob-
jection found to this bill which has no just founda-
tion. All the legislation to the bill is but the applica-
tion of the existing law on the subject. [22 Cong.
Rec. 3881, reprinted in DeCoteau, Resp. Br. 65].
either situation, the conveyance of is
handled by the government for the benefit of the Tribe in
accordance with the General Allotment Act without there-
by terminating the Reservation. Compare Seymour v.
Superintendent, supra, 368 U.S. at 354-359.
5. The Provision of the 1891 Act Referring to the
“Laws of the State Wherein Located” Did Not
Disestablish All or Part of the Reservation
The Act of 1891 provides that the land ceded shall
“be subject only to entry and settlement under the home-
stead and townsite laws of the United States, excepting
the sixteenth and thirty-sixth sections of said lands, which
Shall be reserved for common school purposes, and be
subject to the laws of the State wherein located * * *”
(Decoteau, Pet. Br. App. 15). The Supreme Court of
South Dakota, in DeCoteau, interpreted the final phase of
this passage as expressly subjecting activities on all lands
sold to state civil and criminal jurisdiction (DeCoteau,
Pet. App. A, Sa-7a). The Eighth Circuit in Erickson
found the language ambiguous—both as to its general
meaning and as to whether it applied only to the school
sections (which the court considered more plausible) or
to all land sold. It concluded that “[W]e do not read this
clause as a clear indication of congressional intention to
terminate the Lake Traverse Reservation” (Erickson, Pet.
App. A, 6a-7a). In our view, the “laws of the state”
language is simply not addressed to the question of whose
law shall govern acts committed on the land in question;
the purpose is, rather, to make clear that, while the un-
44a
aotted land shall be open only to settlement under the
federal homestead and townsite laws, an exception is
made for the 16th and 36th sections which are to be used
only for common school purposes and may be used or
sold as permitted by state law for that purpose.
The language was necessary because the South Dakota
Enabling Act did not reserve the 16th and 36th sections
in Indian reservations for school purposes, and special
language was needed to accomplish that purpose. See the
Statement of Senator Gamble at 35 Cong. Rec. 3187 and
the Statement of Congressman Burke at 38 Cong. Rec.
1423, both reproduced at DeCoteau, Resp. Br, 136-138.
Indeed, if the “ceded” land had been regarded by Con-
gress as no longer forming part of the Reservation, no
such special language would have been needed to estab-
lish the 16th and 36th sections as school land.”
In sum, while the Act of March 3, 1891 paved the way
for homesteading by non-Indians within the Lake Tra-
verse Reservation, it did not change the boundaries of the
Reservation or abolish it. Thus questions of criminal
and civil jurisdiction within this Reservation are deter-
mined as within any other Reservation.
II
SUBSEQUENT ADMINISTRATIVE AND LEGIS-
LATIVE ACTIONS CONFIRM THAT THE 1891
ACT DID NOT DISESTABLISH THE 1867
TREATY BOUNDARIES
a. The most important administrative interpretation of
the 1891 Act is the contemporaneous proclamation of
President Harrison opening the Reservation for settlement
* See Section 1 of the Act of March 2, 1895, 28 Stat. 899-900,
43 U.S.C. 856, which, 4 years later, provided general authorization
for state selection of school lands “within the boundaries of any
Indian reservation in such state” from “surplus lands * * * pur-
chased by the United States.”
45a
(Procl. of April 11, 1892, 27 Stat. 1017, DeCoteau, Pet.
Br. App. 16-20). In that Proclamation, made after en-
actment of the 1891 Act and after payment to the Tribes
for the land “ceded,” the President consistently referred
to the Reservation in the present tense and the lands
opened for settlement as “lands embraced in said reser-
vation” (DeCoteau, Pet. Br. App. 18). The Proclama-
tion further referred the reader to “the accompanying
schedule, entitled “Schedule of lands within the Lake Tra-
verse Reservation opened to settlement by proclamation
of the President * * * ” (id. at 19; emphasis added).
This proclamation is important not only because it is a
contemporaneous construction of the effect of the 189]
Act, but also because it was the basis on which non-
Indian settlers purchased land, giving them fair warning
that they were purchasing land within an Indian reser-
vation.
Subsequent executive orders extending the trust period
on allotments on April 16, 1914, and April 19, 1924,
(Nos. 1916 and 3994, respectively) each refer to the
‘Sisseton and Wahpeton Bands of Sioux Indians of the
Lake Traverse Reservation, North and South Dakota.”
And in decisions and literature of the Department of the
Interior after 1891 there are numerous references to land
“in” or “within” the Lake Traverse Reservation. Circular,
Sisseton and Wahpeton Lands, 14 L.D. 302; Madella O.
Wilson, 17 L.D. 153; Edward Parant, 20 L.D. 53. Noth-
ing could be clearer than the report of the Sisseton-
Wahpeton Indian Agent in 1900 describing the Reser-
vation:
The reservation is in the northeastern part of
South Dakota, Occupying parts of Roberts, Day,
Grant, Marshall and Codington counties and extend-
ing into Richland and Sargent counties of North
Dakota. It is about 120 miles long and at the State
line 42 miles wide, coming to a point near Water-
town, S. Dak. * * *
46a
There are 1,970 [allotted] pieces of land situated
from one end of the reservation to the other * * *.
[Annual Report, Commissioner of Indian Affairs,
United States Indian Affairs Office, 385 (1900) }.
See also the reference to the Annual Reports of the Com-
missioner of Indian Affairs in DeCoteau, Pet. Br. 42,
n. 30.
Of equal importance, the exercise of trust responsibility
by the United States for this Tribe, and the Tribal rela-
tionship of its members, remained intact. A decision of
the Eighth Circuit in 1901, ten years after allotment and
disposal of surplus land, makes this continuing relation-
ship clear. Farrell v. United States, 110 Fed. 942. The
case concerned the application of the laws against sale of
liquor to Indians to a sale to one La Framboise, a person
of mixed Sioux and Caucasian ancestry. While the
boundaries of the Reservation were not at issue, La Fram-
boise’s membership in the Sisseton-Wabpeton Tribe was.
The court noted that:
La Framboise had received his allotment and patent,
and the lands within the reservation of the Sisseton
and Wahpeton bands of Sioux Indians, to which he
belonged, that had not been allotted, had been
opened to settlement * * *. (Jd. at 947.]
Nevertheless, it was found that there was continuing
regulation by the Tribe of its membership and family
relations and constant supervision over the Tribe by the
resident federal agent:
[The issuing of allotments] did not radically change
the title to the lands reserved for [these Indians], or
their need of care and education. The government
held the title to their reservation in trust for them
collectively before, it held the title to their allot-
ments in trust for them individually after, the issue
of the patents. There was every reason why congress
Should retain and exercise its power to superintend
47a
the trade with them, and none to induce it to re-
nounce it. By the treaty of 1867 the United States
agreed to appoint and maintain an agent for these
Indians at Lake Traverse, and by its legislation and
the rules of the interior department it made it the
duty of this agent to use every endeavor to suppress
the traffic in intoxicating liquors with them, to edu-
cate them, and to induce them to cultivate the soil.
There has been no express abrogation of this agree-
ment in any subsequent treaty or act of congress,
and the government has continued to comply with
it since the allotments as it did before. Agreements
are not released or abrogated and statutes are not
repealed by implication unless the subsequent agree-
ments or laws are necessarily repugnant to those
which preceded them. [/d. at 951.]
This evidence of the continued exercise of federal trust
responsibility after the opening of the Reservation sup-
ports our conclusion that the Reservation was opened,
but not dissolved. See also United States v. Rickert, 188
U.S. 432.
We have been unable to discover contemporaneous
opinions of the Department of the Interior directed pre-
cisely to the jurisdictional effect of the 1891 Act. There
are, however, two recent decisions, predating either of
the appellate decisions under review, and rendered at a
time when DeMarrias v. State, 319 F. 2d 845 (C.A. 8),
overruled by the Erickson decision, was still intact. Both
decisions, made by the Field Solicitor of the Department
of the Interior in Aberdeen, South Dakota (the office
which deals with this Tribe on a regular basis), sustained
the continued federal and tribal authority and the com-
menusurate lack of state jurisdiction over Indians within
the Treaty boundaries of the Lake Traverse Reservation
(Opinions of June 9, 1972 and August 16, 1972, De-
Coteau, Pet. Br. App. 21-33). Interpretation of a law
by the government agency responsible to administer it is,
48a
of course, entitled to great weight. Udall v. Tallman,
380 U.S. 1, 16. This is particularly true when the statute
may affect the status of an Indian reservation and the
trust responsibilities of the United States. Seymour v.
Superintendent, supra, 368 U.S. at 357; Mattz v. Arnett,
supra, 412 U.S. at 505.*
b. Congress, since the opening of the Reservation, has
continued to appropriate funds for the Sisseton-Wahpeton
§ South Dakota points out (DeCoteau, Rep. Br. 113-116) that the
depiction of the Reservation on government maps varied consider-
ably over the years since 1891. From 1892 to 1908 the Reserva-
tion was not shown on the maps. From 1909 to 1917 the Reser-
vation was shown as an “open” reservation, but the 1918 map shows
it was a “former” reservation. Modern maps show the Reservation
simply as a “reservation.” We think these differences are unim-
portant. The early map-makers wanted to show that the lands
were no longer reserved for exclusive Indian occupancy, but were
open for settlement. As this Court and Congress began to refine
the jurisdictional meaning of such openings the map makers fol-
lowed suit. Indeed the meaning of the word “reservation” itself
has changed over the years. In early years it seemed to have been
used to mean literally land reserved for exclusive Indian use. Later,
as a result of the various “opening” Acts, it came to have the
broader jurisdictional meaning that it has today. The first decision
of this Court to clarify the meanings of “reservation” and “Indian
country” after the General Allotment Act was United States v.
Celestine, 215 U.S. 278, 285-286. This process of clarification con-
tinued with enactment of 18 U.S.C. 1151 and this Court’s subse-
quent decision in Seymour v. Superintendent, supra. Thus, as with
early maps, early casual references to the Reservation as the “for-
mer reservation” (see DeCoteau, Br. 9) are of little significance;
they indicate only that the Reservation had been opened for non-
Indian settlement, which is not disputed. South Dakota also points
out a reference to the “former Sisseton Indian Reservation” in
United States v. Rickert, supra, 188 U.S. at 432 (see DeCoteau,
Resp. Br. 173). That phrase, however, is not the Court’s but part
of a question from the pleadings below as recited in the question
certified to the Court. Reservation bundaries were not at issue
and the use of the phrase must be considered in light of its limited
mesning at the time.
49a
Reservation or Agency® and has never referred to the
Reservation as a “former reservation” as it did with the
reservations recognized by this Court as continuing to
exist in Seymour v. Superintendent, supra, 368 U.S. at
356, n. 12, and Mattz v. Arnett, supra, 412 U.S. at 496,
n. 17. This consistent appropriation process is 2 signifi-
cant exercise of trust responsibility. Recently, moreover,
Congress has unmistakenly reaffirmed its view that the
opening of the surplus lands to non-Indian settlement did
not terminate or diminish the Reservation (Public Law
93-489 and Public Law 93-491, signed by the President
October 26, 1974). Indeed, in Public Law 93-489 Con-
gress restored to “the United States -in trust for the
Sisseton-Wahpeton Sioux Tribe” certain federally owned
land “of the Lake Traverse Indian Reservation in North
and South Dakota.” Since the land had not been trust
land, this is a clear indication of the congressional under-
standing that the Reservation was never abolished and
always included non-trust land. Similarly, Public Law
93-491 authorizes the Secretary of the Interior to acquire
lands:
within the boundaries of the Lake Traverse Reser-
vation * * * for the purpose of consolidating land-
holdings, eliminating fractional heirship interests in
Indian trust lands, providing land for any tribal pro-
gram for the improvement of the economy of the
tribe and its members through the development of
industry, recreational facilities, housing projects, and
the general rehabilitation and enhancement of the
total resource potential of the reservation. [Em-
phasis added. }
® See, for typical early appropriation language, 39 Stat. 988 and
42 Stat. 576. In recent years general appropriations have not been
by particular reservation or agency. An extensive accounting of
trust funds of the Tribe expended by the United States is available
in General Services Administration Report, The Lower Sioux In-
dian Community in Minnesota, et al., Docket No. 363 (June 1967)
before the Indian Claims Commission.
50a
It further authorizes the Tribe to sell tribal property and,
from the proceeds, purchase “other land on the reserva-
tion.” Again, we have a recognition of the Reservation’s
existence beyond trust lands and its continued service as
the home and political jurisdiction of the Sisseton-
Wahpeton Tribe. While these recent Acts are not deter-
minative of an earlier congressional intent, they are con-
sistent only with the continuity of the Reservation’s orig-
inal boundaries and should be given weight. See Seymour
v. Superintendent, supra, 368 U.S. at 356.
Ill
THE TRIBE’S INHERENT RIGHT OF SELF-
GOVERMENT, CONFIRMED IN THE TREATY
OF FEBRUARY 19, 1867, AND THE PRACTI-
CALITIES OF PERFORMING THE CONTINU-
ING TRUST RESPONSIBILITIES OF THE
UNITED STATES TOWARD THE TRIBE SUP-
PORT THE INTERPRETATION OF THE ACT
OF 1891 AS NOT DIMINISHING THE RESER-
VATION
We have discussed the jurisdiction of the State within
the borders of the Lake Traverse Reservation primarily
in terms of the precise wording of the statute opening the
Reservation for non-Indian settlement. But the alleged
ambiguity of the Act of 1891 and of similar Acts opening
reservations also calls for a broader approach.
We note, first, that the Sisseton-Wahpeton Tribe re-
mains an important and populous Indian tribe exercising
its federally guaranteed powers of self-government under
federal guardianship. A large amount of land, scattered
about within the boundaries of the Reservation, remains
trust land. The State of South Dakota did not choose to
assume responsibility for civil and criminal law and law
enforcement within Indian country in the state when it
could have done so under Public Law 280, supra. Com-
pare Williams v. Lee, 358 U.S. 217, 222-223; Mc-
Sla
Clanahan vy. Arizona State Tax Commission, 411 US.
164, 177-178. Nor is the decision that the State asks of
this Court one that could give the State jurisdiction over
acts occurring on trust land. Instead, the result sought by
the state would greatly increase the difficulty of achieving
adequate law and order on the reservation by requiring
plat-book jurisdiction—state jurisdiction over Indians on
this lot, federal or tribal jurisdiction on the next. Ob-
viously, such an absurd result, in a reservation such as
this, where a large Indian population lives, ought to be
avoided, if possible.
Also, and equally important, it is, and has been, the
policy of the United States that, unless specifically ter-
minated by Congress, Indian tribes are self-governing
political communities. In McClanahan v. Arizona State
Tax Commission, supra, 411 U.S. at 168, this Court
stated:
* * * “Itlhe policy of leaving Indians free from
state jurisdiction and control is deeply rooted in the
Nation’s history.” Rice v. Olson, 324 U.S. 786, 789
(1945). This policy was first articulated by this
Court 141 years ago when Mr. Chief Justice Mar-
shall held that Indian nations were “distinct political
communities, having territorial boundaries, within
which their authority is exclusive * * *.”
See also Williams v. Lee, supra, 358 U.S. at 220:
Essentially, absent governing Acts of Congress, the
question has always been whether the state action
infringed on the right or reservation Indians to make
their own laws and be ruled by them.
This right to self-government was explicitly guaranteed
the Sisseton-Wahpeton Tribe in its 1867 Treaty with the
United States and has never been taken away by Con-
gress. Article 10 of that Treaty states (DeCouteau, Pet.
Br. App. 6): ‘
52a
The chiefs and head-men located upon either of
the reservations set apart for said brands are author-
ized to adopt such rules, regulations, or laws for the
security of life and property, the advancement of
civilization, and the agricultural prosperity of the
members of said bands upon the respective reserva-
tions, and shall have authority, under the direction
of the agent, and without expense to the Govern-
ment, to organize a force sufficient to carry out all
such rules, regulations, or laws, and all rules and
regulations for the government of said Indians * * *.
Tribal control over domestic relations, at issue in
DeCoteau, is at the heart of this right of Tribal self-
government. See, e.g., United States v. Quiver, 241 U.S.
602, 603-604. The question of a child’s welfare cannot
be decided without reference to his family structure. This
involves both a sympathetic knowledge of the individuals
involved, and a knowledge of the background culture. No
matter how well-intentioned, state authorities are not
likely to have insight into these important areas. More-
over, if such authorities are to have jurisdiction over tribal
children in dependency and neglect cases, there is a sub-
stantial chance that such children may be placed in non-
Indian homes outside the Reservation and be deprived of
their cultural identity... The Sisseton-Wahpeton Tribe
opposed such practices in a tribal resolution on July 6,
1972, which states:
1° This concern, in the light of present experience, was strongly
expressed by the North American Indian Women’s Association in
a recent report. North American Indian Women’s Association,
Inc., Project Report for Development of a Prototype Program for
Indian Children with Special Needs, BIA Contract No.
K51C14200761, December 15, 1973. The first recommendation made
by the study was that “{W]hen at all possible, Indian Children
should be placed with Indian foster parents.” /d. at 62.
53a
SISSETON-WAHPETON SIOUX
WHEREAS, The Sisseton-Wahpeton Sioux Tribe is
interested in the well-being of all the enrolled mem-
bers of the tribe and
WHEREAS, Minor children of Sisseton-Wahpeton
descent have been placed in non-Indian foster and
adoptive homes all over the United States,
WHEREAS, The Tribal council is in the process of
researching the sovereign status of the tribal entity
in respect to its jurisdiction as stated in the constitu-
tion of the Sisseton-Wahpeton Sioux Tribe, and,
WHEREAS, It is the intent of the Sisseton-
Wahpeton Sioux Tribe to establish its own method
of social and economic development and well-being
of the enrolled members, and,
WHEREAS, It is the strong feeling of the tribal
council “to make every stand possible to keep these
children on the reservation” (minutes of June 6th
council meeting) and “the tribal council would like
these children to be placed in an Indian licensed
home until an Indian home can be found for them
to be adopted.”
THEREFORE, Be It RESOLVED, that Mr. Bert
Hirsch, legal counsel from the Association of Ameri-
can Indian Affairs, will stand on these grounds in his
argument in Robert County Court on July 7, 1972
and future cases of this nature.
The Sisseton-Wahpeton Tribe is a responsible body,
concerned about its young people. It should have au-
thority over dependency and neglect and similar proced-
ings concerning its own people anywhere within the Res-
ervation." If this authority were fragmented so as to
apply only to acts committed on trust land within the
11 The Tribe has assumed such authority under its tribal code.
54a
Reservation, it would be practically meaningless as an
exercise of effective self-government. And neither the
Tribe, in domestic relations matters and with respect to
the criminal offenses left to its control, nor the United
States, in its control over major crime, should have to
search the tract books in order to determine whether it
or the State has jurisdiction. Seymour v. Superintendent,
supra, 368 U.S. at 358.
CONCLUSION
For the foregoing reasons, the judgment of the Supreme
Court of the State of South Dakota should be reversed
and the judgment of the United States Court of Appeals
for the Eighth Circuit should be affirmed.
Respectfully submitted.
ROBERT H. Bork,
Solicitor General.
WALLACE H. JOHNSON,
Assistant Attorney General.
Lou!Is F. CLAIBORNE,
HARRY R. SACHSE,
Assistants to the Solicitor
General.
EDMUND B, CLARK,
EDWARD J. SHAWAKER,
NOVEMBER 1974. Attorneys.
55a
IN THE
SUPREME COURT OF THE UNITED STATES
OcToBER TERM, 1976
No. 75-562
ROSEBUD Sioux TRIBE, PETITIONER
Vv.
HONORABLE RICHARD KNEIP, ET AL.
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
BRIEF OF THE UNITED STATES
AS AMICUS CURIAE
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-61)
is reported at 521 F.2d 87. The opinion of the district
court (Pet. App. 63-113) is reported at 375 F.Supp.
1065.
JURISDICTION
The judgment of the court of appeals was entered on
July 16, 1975 (Pet. App. 61). A petition for a writ of
certiorari was filed on October 11, 1975, and was granted
on May 24, 1976. The jurisdiction of this Court is
conferred by 28 U.S.C. 1254(1).
56a
QUESTION PRESENTED
Whether three Acts of Congress, which authorized the
sale of land within portions of the Rosebud Indian Reser-
vation to non-Indians and directed that the proceeds of
each sale as received should be deposited in trust for the
benefit of the Tribe, diminished the exterior boundaries
of the Reservation as they existed in 1889.
STATUTES INVOLVED
The Acts of April 23, 1904, 33 Stat. 254; March 2,
1907, 34 Stat. 1230; and May 30, 1910, 36 Stat. 448,
are set forth in Appendix C to the petition.
STATEMENT
In June 1972, the Rosebud Sioux Tribe of Indians
filed suit in the United States District Court for the Dis-
trict of South Dakota, seeking a declaratory judgment
that the exterior boundaries of the Rosebud Reservation,
as defined in the Act of March 2, 1889, 25 Stat. 888,
had not been altered by three Acts of Congress (Act of
April 23, 1904, 33 Stat. 254; Act of March 8, 1907, 34
Stat. 1230; Act of May 30, 1910, 36 Stat. 448) opening
certain unallotted surplus land to non-Indian settlement.
In the Act of March 2, 1889, Congress “restored to
the public domain” (25 Stat. 896) one-half of the Great
Sioux Reservation established in 1868, but preserved for
the Sioux Tribes six Reservations in present-day North
and South Dakota (id. at 888-890). Among these was
the Rosebud Reservation, locaced in the south central
portion of South Dakota, and composed of the Counties
of Todd, Tripp and Mellette, and parts of Gregory and
Lyman counties.’
1A map of the Reservation, showing the 1889 boundaries and
the boundaries as found by the court of appeals, is reproduced at
Pet. App. 113.
57a
In 1901, the Rosebud Tribe agreed (Pet. App. 15,
n. 21) to “cede * * * and convey to the United States”
for a specified sum of $1,040,000 the unallotted land
within the Gregory County portion of its Reservation for
non-Indian settlement. Congress rejected this agreement
in 1902 and 1903. The problem “was, simply put,
money” (Pet. App. 16). Congress then “amended and
modified” the agreement (Pet. App. 117) and enacted
it as the Act of April 23, 1904 (Pet. App. 117-120).
The primary amendments were that (1) the Indians were
not guaranteed any consideration for the land except with
respect to the 16th and 36th sections (school section),
but were to be paid only as the lands were actually sold
to settlers;* (2) the United States did not guarantee to
find purchasers but agreed only to “act as trustee for said
Indians to dispose of said lands” (Section 6, Pet. App.
120); and (3) limitations were placed on the distribu-
tion of the proceeds to the Indians (compare Art. III,
Pet. 118, with Art. III, Pet. App. 115-116).
The Rosebud Reservation was further opened by the
1907 Act, which, as passed, p vvided (Pet. App. 121)
“that the Secretary of the Interior * * * is hereby, au-
thorized and directed, * * * to sell or dispose of all that
portion of the Rosebud Indian Reservation * * * [within
Tripp County] except such portions thereof as have been,
or may hereafter be, allotted to Indians” (and except
school sections that were to be paid for by the United
States, and granted to the State).* The 1907 Act further
provided (Section 5, Pet. App. 122-123) that the funds
* Section 2 of the Act (Pet. App. 119) set forth a schedule of
the prices per acre for the land, which varied according to the time
at which the land was sold.
’ Each Act contains substantially identical school land provisions
to the effect that Sections 16 and 36 of the lands in each township
are not to be disposed of, but are reserved for donation to the
State for use as common schools. These lands were to be paid for
by the federal government. See Pet. App. 120, 121, 123, 127.
58a
received should be deposited in an interest-bearing ac-
count in the Treasury of the United States “to the credit
of the Indians belonging and having tribal rights on the
Rosebud Reservation,” that the interest shall be paid an-
nually to the Indians, that all funds up to one million
dollars should be distributed after ten years on a per
capita basis to the Indians, and that the balance should
be expended or distributed for the Indians’ benefit at the
discretion of the Secretary of the Interior. The 1907 Act
concluded, as did the 1904 Act (Section 6, Pet. App.
120), with a section declaring (Section 8, Pet. App.
123):
* * * nothing in this act contained shall in any
manner bind the United States to purchase any
portion of the land herein described, except sections
sixteen and thirty-six or the equivalent in each town-
ship, or to dispose of said land except as provided
herein, or to guarantee to find purchasers for said
lands or any portion thereof, it being the intention
of this act that the United States shall act as trustee
for said Indians to dispose of said lands and to ex-
pend and pay over the proceeds received from the
sale thereof only as received, as herein provided
* * *. [Emphasis added. |
The 1910 Act (Pet. App. 124-127), like the 1907
Act (Pet. App. 121), began with an authorization to the
Secretary to “sell and dispose” of surplus lands within a
described portion (Mellette County) of the Reservation
App. 124).* The Act further provided (ibid. )
[t}hat any Indians to whom allotments have been
made on the tract to be ceded may, in case they
elect to do so before said lands are offered for sale,
relinquish same and select allotments in lieu thereof
*The 1907 Act uses the phrases “sell or dispose” (emphasis
added).
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on the diminished reservation * * *, [Emphasis
added. }
The 1910 Act further required (Section 4, Pet. App.
125) that a commission be established, composed of
“lo}ne resident citizen of the State of South Dakota, one
representative of the Interior Department, and one per-
son holding tribal relations with said tribe of Indians,”
to determine the price setters would be charged for the
land. The proceeds of any eventual sales were to be
deposited in the Treasury to the credit of the “Indians
belonging and having tribal rights on the said reserva-
tion,” which “shall be at all times subject to appropria-
tion by Congress for their education, support and civili-
zation” (Section 7, Pet. App. 126). The 1910 Act (Sec-
tion 11, Pet. App. 127), like the earlier Acts (Section
6, Pet. App. 120; Section 8, id. at 123), explictly stated
that the United States was not obligated to purchase the
surplus land, except Sections 16 and 36 for school pur-
poses, and would act only as trustee for the Indians in
disposing of the surplus land.
In a lengthy opinion the district court held that each
of the 1904, 1907 and 1910 Acts extinguished the por-
tion of the Reservation to which it applied (Pet. App.
63-113; see id. at 113). The court found no language
in the Acts expressly terminating the Reservation in the
counties involved and no “express discussion of state
versus federal jurisdiction over the lands in question” (id.
at 85); however, the court held that, in light of the
“surrounding legislative history and the circumstances”
(id. at 109) from 1901 to 1910, Congress intended to
extinguish the portions of the Reservation at issue.
The United States Court of Appeals for the Eighth
Circuit affirmed (Pet. App. 1-61), after this Court had
decided DeCoteau yv. District County Court, 420 U.S.
425. The court rejected arguments of the Tribe, and the
United States as amicus curiae, that the language of the
Acts interpreted in light of prior decisions of this Court
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did not abolish the disputed portions of the Reservation,
and that neither the legislative nor the administrative his-
tory established that the State had undisputed jurisdiction
to the exclusion of the Tribe and the United States. The
court thought that prior decisions, including this Court’s
decisions in Seymour v. Superintendent, 368 U.S. 351,
and Mattz v. Arnett, 412 U.S. 481, and its own decisions
in City of New Town, North Dakota v. United States, 454
F. 2d 121, and United States ex rel. Condon v. Erickson,
478 F. 2d 684, were “of limited utility” in deciding this
case (Pet. App. 5) and concluded that “the overriding
judicial inquiry remains unchanged, namely, the congres-
sional intent” (ibid.). Stating that this Court’s decision
in DeCoteau, supra, permitted it to utilize “all materials
reasonably pertinent to the legislation * * * as well as
those bearing upon the historical context of its passage,
such as the social forces then at work in the area * * *”
(Pet. App. 8), the court found a “continuity” of cir-
cumstances from 1901 to 1910 that demonstrated Con-
gress’ intention to extinguish Indian jurisdiction over the
areas in question (id. at 26-28, 34, 38, 39-40, 44, 46,
48).
SUMMARY OF ARGUMENT
It is the position of the United States that the Acts
of 1904, 1907, and 1910, while opening portions of the
Rosebud Reservation to non-Indian settlers, did not
contract the exterior boundaries of the Reservation. This
position is based upon our assessment of the Acts them-
selves, the contemporary social and legislative history,
subsequent treatment of the lands by the Department of
the Interior, and doctrines developed by this Court in
similar cases. While the courts below gave some atten-
tion to each of these factors, we believe that the courts
overemphasized inconclusive legislative history. A more
balanced analysis, we submit, requires a finding that Con-
gress did not intend by these Acts to terminate most of
the Reservation but expected that termination would oc-
cur, if at all, when the trust period on allotments expired.
6la
This Court’s decisions require compelling evidence to
prove that reservation boundaries have been cut back
without the consent of the affected Indian tribe and
without guaranteed payment for the opened lands. Any
different construction would place Indians in the position
of surrendering jurisdiction over substantial portions of
their reservation before any benefits had been assured or
received. Thus, the Court found in Seymour v. Super-
intendent, 368 U.S. 351, and Mattz v. Arnett, 412 U.S.
481, that unilateral Acts of Congress, providing that the
United States would not purchase Indian lands but would
merely act as trustee for their sale, did not commit the
opened lands to state jurisdiction. The Acts opening the
Rosebud Reservation were drafted in similar fashion and
are to the same effect.
The Acts of 1904, 1907, and 1910, do not demon-
Strate an intention to return lands to the public domain,
and the clear language of other Acts expressly restoring
lands to the public domain is notably absent. In contrast
to public lands, which are subject to disposition under
general laws, the lands of the Rosebud Reservation were
to be sold only in accordance with the terms of the trust
established by Congress; all proceeeds were explictly dedi-
cated to the benefit of the Tribe. In fact, Congress in-
cluded a provision granting school lands to the State in
each Act, despite this Court’s holding in 1902 that such
provisions were unnecessary when lands were restored to
the public domain. Minnesota v. Hitchcock, 185 US.
373.
Subsequent administrative actions confirm that the Acts
did sot disestablish the 1889 boundaries of the Reserva-
tius, Under the Indian Reorganization Act of 1934, 48
Stac. 984, as amended, 25 U.S.C. 461, et seq., the De-
partment of the Interior restored to Indian ownership
lands in the opened portion of the Reservation, an action
that could not have included lands “upon the public do-
main outside the geographic boundaries of any Indian
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reservation * * *” (48 Stat. 986). Moreover, numerous
communications and reports show that the Deparement,
before and after the Indian Reorganization Act, recog-
nized territory in the opened counties as within the Rose-
bud Reservation. Recent appropriations are consistent
with that viewpoint.
The uncertain legislative history does not demonstrate
a contrary intention. Despite the emphasis placed on the
legislative history by the court of appeals, the reports and
debates show that Congress at no time concerned itself
with the question of jurisdiction over the opened lands.
While the court of appeals stressed references made in
unrelated contexts, we submit that the inferences to be
drawn from such references are at best ambiguous, They
do not merit the weight that they received in the court
of appeals.
The Acts of 1904, 1907, and 1910, therefore, do not
demonstrate congressional intent to impede the Tribe's
right to govern its own people.
ARGUMENT
I. THE DECISIONS OF THIS COURT HOLD
THAT ACTS OF CONGRESS ESTABLISHING
TRUSTS FOR THE SALE OF INDIAN LANDS
DO NOT REDUCE RESERVATION BOUND-
ARIES
This Court, in deciding Indian cases, does not write
upon a fresh slate. The Court has long recognized that
“(t]he relation of the Indian tribes living within the bor-
ders of the United States * * * [is] an anomalous one
and of a complex character.” United States v. Kagama,
18 U.S. 375, 381. “Indian tribes are the wards of the
nation. They are communities dependent on the United
States.” Jd. at 383-384 (emphasis in original). With
respect to legislation, therefore, “[dJoubtful expressions
are to be resolved in favor of the weak and defenseless
63a
people who are the wards of the nation, dependent upon
its protection and good faith.” Carpenter v. Shaw, 280
US. 363, 367.
During the past fifteen years this Court has been asked
three times to decide whether Congress intended to cut
back reservation boundaries or to open up reservation
lands for settlement with the existing boundaries un-
changed. Seymour v. Superintendent, 368 U.S. 351;
Mattz v. Arnett, 412 U.S. 481; DeCoteau vy. District
County Court, 420 U.S. 425. The principles developed
by those decisions are directly applicable to the questions
raised in this case.
In Seymour, this Court considered the effect of the Act
of March 22, 1906, 34 Stat. 80, on the Colville Indian
Reservation in the State of Washington. In 1892, the
United States expressly vacated and restored a portion
of the Reservation “to the public domain,” 27 Stat. 62,
63. In the 1906, Act, however, no such language was
included; the Secretary was merely directed “to sell or
dispose” of unallotted lands within the Reservation (34
Stat. 80) and to place the proceeds as received from
settlers into the Treasury for the benefit of the Indians
(34 Stat. 81). The Act further provided that the United
States would act as a trustee in disposing of these lands
for the Indians’ benefit and not as a purchaser (34 Stat.
82). Because Seymour involved a criminal matter, this
Court assessed the meaning of the 1906 Act against the
backdrop of the definition of “Indian Country” found in
18 U.S.C. 1151.°
This Court concluded that “the purpose of the 1906
Act was neither to destroy the existence of the diminished
Colville Indian Reservation nor to lessen federal responsi-
5 Indian country is defined, in part, as “all land within the lim-
its of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any patent,
and, including rights of way running through the reservation
** #»
64a
bility for and jurisdiction over the Indians having tribal
rights on that reservation.” 368 U.S. at 356. The Col-
ville 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 develop
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