# Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0066%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1263 ## Text 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 a 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0066%3A09. Public record. Not legal advice.