Respondents Brief — South Dakota v. Yankton Sioux Tribe

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Text

. Supreme Court

No. 96-1581

mo. ee

In The SEP 24 9/

October Term, 1996

STATE OF SOUTH DAKOTA

YANKTON SIOUX TRIBI

tribe of \dians ynd its

DARREL! DRAPEAIT

Yankton ‘

and

SOUTHERN MISSOURI WASTE MANAGEMENT

DISTRICT, a nonprofit corporation

On Writ Of Certiorari To The United States Court

Of Appeals For The Eighth Circuit

. .

BRIEF FOR THE RESPONDENTS YANKTON SIOUX

rRIBE AND DARRELL E. DRAPEAI

ABOUREZK LAw Ofrrici

P.O. Box 1164

Sioux Falls, SD 57]

6U5 334-8402

( )

Elk Point, §

~ »o

ify) tele

PauL BENDER

2222 North Alvaras

Phoenix, AZ 8500:

(602) 253-8192

lOuUX ITive

Drape Qu

TABLE OF CONTENTS

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

IT.

THE LANGUAGE OF CONGRESS IN THE

1l894 ACT OPENING THE YANKTON SIOUX

INDIAN RESERVATION TO WHITE SETTLE-

MENT SHOWS CONGRESSIONAL INTENT

lO PRESERVE THE BOUNDARIES OF THE

RESERVATION AS ESTABLISHED BY THI

TREATY OF 1858 . PeuBEN LS Os vee

THE LEGISLATIVE HISTORY AND THE HIS

FTORICAL CONTEXT SURROUNDING THE

PASSAGE OF THE 1894 ACT REFLECT THE

INTENT OF CONGRESS TO MAINTAIN THI

YANKTON SIOUX INDIAN RESERVATION AS

ESTABLISHED BY THE TREATY OF 1858

THE PATTERN OF SETTLEMENT AND

JURISDICTION SUBSEQUENT TO THE 1894

ACT DOES NOT OVERCOME THE CLEAR

INTENT OF CONGRESS TO PRESERVE THE

1858 TREATY BOUNDARIES OF THE YAN.

KTON SIOUX INDIAN RESERVATION ..

THE RESULT IN THIS CASE IS, IN ALI

EVENTS, DICTATED BY THE RULE THAT

AMBIGUITIES IN STATUTES OR AGREE-

MENTS INVOLVING INDIANS MUST BE

RESOLVED IN FAVOR OF THE INDIANS

THE “ALMOST INSURMOUNTABLE PRE-

SUMPTION” OF DISESTABLISHMENT

RELIED UPON BY THE STATE DOES NOT

APPLY IN THIS CASE ..

CONCLUSIO

TABLE OF AUTHORITIES

Page

Cases CITED:

Annis v. Dewey County Bank, 335 F.Supp. 133

(D.S.D. 1971) ... 000 cviccveceassenbesguemateneunaas 45

Colautti v. Franklin, 439 U.S. 379 (1979).............. 30

County of Oneida, New York v. Oneida Indian Nation

of New York, 470 U.S. 226 (1985) ..........--.-eee 20

County of Yakima v. Confederated Tribes and Bands of

the Yakima Nation, 502 U.S. 251 (1993)............. 21

DeCoteau v. District County Court, 420 U.S. 425 .

ti eee re re ee passim

F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99 (1960) .... 20

Hagen v. Utah, 510 U.S. 399 (1994) ...........4.. passim

Hassett v. Welch, 303 U.S. 303 (1937)...........4.. 29, 30

Mattz v. Arnett, 412 U.S. 481 (1973) ....... 6, 19, 23, 28

Perrin v. United States, 232 U.S. 478 (1914)........... 43

Rainwater v. United States, 356 U.S. 590 (1958)....... 29

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

Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164

(Bie CSe. 1990)... vccccckhedsdeuceapeneenneneeeees 45

Seymour v. Superintendent, 368 U.S. 351 (1962) ....19, 32

Shoshone Tribe v. United States, 299 U.S. 476 (1937) .... 27

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

State v. Greger, 559 N.W.2d 854 (S.D. 1997)........... 3

State v. Spotted Horse, 462 N.W.2d 463 (S.D. 1990) .... 45

United States v. Dion, 476 U.S. 734 (1986)............ 20

TABLE OF AUTHORITIES — Continued

Page

United States v. Grey Bear, 828 F.2d 1286 (8th Cir.

ETC SiaGen Gdae Ghehede 0406 secsssccceccess 20

United States v. Long Elk, 565 F.2d 1032 (8th Cir.

CSUs Seeds ene Ws bédedcccscccesces 32

United States v. State of Montana, 457 F.Supp. 599

(D. Mont. 1978), rev'd, 604 F.2d 1162 (9th Cir.

1979), aff'd, Montana v. U.S., 450 U.S. 544 (1980) .... 28

Washington v. Washington Commercial Passenger

Fishing Vessel Ass'n, 443 U.S. 658 (1979)........ 21, 47

Yankton Sioux Tribe v. Southern Missouri Waste Manage-

ment District, 99 F.3d 1439 (8th Cir. 1996) ........ passim

Yankton Sioux Tribe v. Southern Missouri Waste

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

CEC OR Ee OA Gud Wa wee Ghacbadeccceivececs passim

STATUTORY REFERENCES:

Treaty with the Yankton Sioux, 1858, ratified, 11

CEG RE ACh Atos boeb ee ccecccesec: passim

Agreement with the Yankton Sioux or Dakota

Indians, in South Dakota, 1892, ratified, 28 Stat.

Et ar nedeGdbabeccdvebcecccceses passim

General Allotment Act of 1887 (Dawes Act), 24

REE e eh deck weuussscesccccccoccees 5

Aet Ge Agee Bi, 1602, 22 Stat. 42 ....=.............. 28

South Dakota Enabling Act, 25 Stat. 676 (Feb. 22,

TDC PEEUCEEMG Anibedewedeneevccsccccccsces 45

Act of March 3, 1891, 26 Stat. 1039 ................. 28

TABLE OF AUTHORITIES — Continued

Page

Presidential Proclamation, 29 Stat. 865 (1895)..... 11, 25

Act of April 27, 1904, 33 Stat. 352 ..............445. 29

CONSTITUTIONAL PROVISIONS

GEA Comet, GOR MWe © Whe on cvs dacecnss sdvssnceses 45

Orner AUTHORITIES

H.R. Rpt. 1356, 5ist Cong. Ist Sess. 1890............ 36

S. Exec. Doc. 66, 5ist Cong. Ist Sess. (1890)........ 36, 37

S. Exec. Doc. 27, 53rd Cong. 2nd Sess. (1894)

‘eg Aer eee iepetesan'e passim

Sen. Rpt. 196, 53rd Cong. 2d Sess. (1894) ............ s

F. Cohen, Handbook of Federal Indian Law, 603

Ci wkd von ichddadndcenseauaeevicedsesietneren 15

STATEMENT OF THE CASE

The question for this Court is whether the United

States Court of Appeals for the Eighth Circuit was correct

in ruling that the boundaries of the Yankton Sioux Reser-

vation were not disestablished by Congress’ enactment of

an 1894 statute which purchased unallotted reservation

lands for re-sale to white settlers.

A. Procedural background.

Unlike most boundary cases that come before this

Court, this case had its genesis, not in a criminal action,

but in an environmental dispute.

The case arose when a four county consortium in

south-central South Dakota, Southers Missouri Waste

Management District (hereafter “So ithern Missouri”)

proposed construction of a landfill on private fee land

within the boundaries of the Yankton Sioux Indian Reser-

vation, boundaries which were established by the Treaty

of 1858. 11 Stat. 743 (1858). Over the Tribe's objection, the

South Dakota Board of Minerals and Environment issued

a permit to Southern Missouri to proceed with the land-

fill.

The Tribe thereafter filed this action in the District

Court for the District of South Dakota seeking

an injunction to prevent the construction of the

landfill, as well as a declaration that federal

environmental regulations rather than the weaker state

regulations should be applied to the proposed site.'

' The Tribe also contended that EPA had permitting

authority over the Yankton Sioux Indian Reservation, and had

not given such authority to the State. See JA 25.

JA 21-37.2 Southern Missouri brought the State of South

Dakota (hereafter “State”) into the action as a third-party

defendant. JA 76. The State claimed that the Reservation

had been disestablished by the 1894 Act, 28 Stat. 286, 314

(1894).* JA 86.

After a five-day trial the District Court held that

Congress did not intend to disestablish the 1858 Treaty

boundaries of the Yankton Sioux Indian Reservation

(hereafter “Reservation”). Yankton Sioux Tribe v. Southern

Missouri Waste Management District, 890 F.Supp. 878

(D.S.D. 1996); App. 84. The State appealed the trial

court’s ruling on the boundary issue and the United

States Court of Appeals for the Eighth Circuit affirmed.

Yankton Sioux Tribe v. Southern Missouri Waste Management

District, 99 F.3d 1439 (8th Cir. 1997); App: 1. The Eighth

Circuit held that Congress did not intend to disestablish

the Reservation boundaries, and, as well, the Act

intended to preserve the boundaries of the Reservation.

App. 21, 27. After a thorough examination of all the

relevant factors, the Eighth Circu#t concluded that “Con-

gress intended by its 1894 Act that the Yankton Sioux sell

their surplus lands to the government, but not their gov-

ernmental authority over it,” and held that the 1858

Treaty boundaries were to be maintained. App. 43-44.

2 As used herein, “App.” refers to the Appendix to the

Petition for Writ of Certiorari; “Resp. App.” refers to the

Appendix to the Respondents’ Opposition to Petition for Writ of

Certiorari; “JA” refers to the Joint Appendix; “T” refers to the

transcript at trial.

* The 1894 Act ratified a negotiated agreement between the

government and the Yankton Sioux Indians which had been

executed by the parties in 1892. Throughout this Brief, the 1892

Agreement and the 1894 Act are referred to as the 1894 Act.

Shortly thereafter, the South Dakota Supreme Court

ruled in State v. Greger, 559 N.W.2d 854 (S.D. 1997), App.

125, that the Reservation had been disestablished.* This

Court then granted the State's petition for a writ of

certiorari to review the Eighth Circuit's decision.

B. Historical facts prior to the 1858 Treaty.

According to the earliest records dating from the

beginning of the Eighteenth Century, the Yankton Sioux

Tribe (hereafter “Tribe”) held aboriginal title to thirteen

million acres of land between the Des Moines and Mis-

souri Rivers in the North-Central plains. T. 34-35; JA

571-72, 575. The lands of the Yankton Sioux have never

been in, or a part of, the public domain and the Tribal

government of the Yankton people has existed from the

origins of the Tribe. JA 534-44. From the negotiation of

the first Yankton Treaty in 1815 to the present, a govern-

ment-to-government relationship has existed between the

Yankton Sioux Tribe and the United States, and it is well

established that the Yanktons have been the most peace-

ful of the Sioux tribes. JA 537-42, 567.

C. The 1858 Yankton Sioux-United States Treaty.

Under the terms of the 1858 Treaty between the

United States and the Yankton Sioux Tribe, the Tribe

* Although the State was a party in State v. Greger, the

Tribe was not. This appeal is the Tribe's first opportunity to

raise the collateral estoppel and res judicata issues which are

discussed in the Respondents’ Brief in Opposition to the Writ of

Certiorari. The State court exceeded its authority in Greger by

ignoring the supremacy clause and refusing to defer to the

previous federal decisions on this issue of federal law.

relinquished its aboriginal claim to more than 11 million

acres of land in exchange for the exclusive and unre-

stricted use of a reservation of approximately four hun-

dred thousand acres in what was later to become Charles

Mix County, South Dakota; certain direct payments;

scheduled annuities; and the construction of schools and

agency facilities. 11 Stat. 743 (1858). App. 99-110. The

Reservation was set aside as a permanent home for the

Iribe, and the United States promised:

|tlo protect the said Yanctons [sic] in the quiet

and peaceable possession of the said tract of

four hundred thousand acres of land so reserved

for their future home, and also their persons

and property thereon during good behavior on

their part.

App. at 102.° A description of the boundaries of the

Reservation is contained in the 1858 Treaty.®

Article XVIII of the 1892 surplus land sale Agreement

negotiated between the Yanktons and the United States,

which was incorporated in the 1894 Act, reaffirms the

provisions of the 1858 Treaty. See 1894 Act, App. 111-24.

* A land survey later revealed that 430,495 acres were

actually included in the area described as the Reservation. 5.

Exec. Doc. No. 27; JA 117.

* The 1858 Treaty describes the boundaries of the

Reservation as follows:

Beginning at the mouth of the Naw-izi-wa-koo-pah or

Chouteau River and extending up the Missouri River

thirty miles; thence due north to a point; thence

easterly to a point on the said Chouteau River; thence

down said river to the place of beginning, so as to

include the said quantity of four hundred thousand

acres.

App. 100-01.

No document subsequent to the 1858 Treaty describes

new or different Reservation boundaries. Id.

D. Historical facts prior to the 1892 Agreement.

In the years preceding the 1892 Agreement, the Yank-

ton people suffered persistent drought, floods, grasshop-

per plagues, and shortages of food in extremes never

before, or since, experienced in that region. T. 41-42; JA

576-77. At the same time white settlers and businessmen

exerted great pressure on the federal government to open

up the Reservation land for settlement. T. 68-69, JA 573.

The surge of immigrants from Europe at the end of the

Nineteenth Century also created enormous pressure on

the United States Government to find more land for white

settlement. Jd. With the enactment of the Allotment Act,

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

and the subsequent allotment of Tribal lands, Tribal

leaders ultimately agreed to enter into negotiations to sell

“surplus” lands left over from the allotment process. By

then, the Tribe’s economy had been destroyed and there

was increasing pressure of white expansionism. The cul-

mination of the negotiations was the Agreement of 1892,

selling the unallotted Tribal lands to the United States.

See T. 30; S. Exec. Doc. 27, 53rd Congress, 2d Sess. (1894),

Exhibit ¢.5, JA 108-358.

The Dawes Act radically changed the manner of

Indian ownership of land. Prior to the Dawes Act, the

lands of the Yankton Sioux Tribe were held communally.

JA 580. Some Tribal members were provided with

“assignments” of Tribal lands which they were allowed to

farm, but ownership remained with the Tribe. JA 580. The

Dawes Act created a new policy of forcing individual

Indians to accept allotted tracts of reservation land for

the purpose “of promoting interaction between the races

and of encouraging Indians to adopt white ways.” Mattz

v. Arnett, 412 U.S. 481, 496 (1973).

In accordance with the Dawes Act’s policy, the gov-

ernment then allotted 167,325 acres of Yankton Reserva-

tion land to individual Indians. JA 98-99, 117. These

allotments were scattered throughout the Reservation. JA

137. These initial allotments left 95,000 acres of land to be

used for future allotments and for future use by the Tribe,

including 852 acres reserved for government and reli-

gious purposes. JA 98-99. A surplus of approximately

168,000 acres of unallotted lands remained. Id. It is these

“surplus” acres that the United States sought to acquire

for settlement by non-Indian farmers, businessmen, and

settlers. JA 573-77.

In 1892, the Secretary of the Interior appointed a

three-member commission to negotiate with the Yankton

Indians for the sale of their unallotted “surplus lands”

within the reservation.’ Id.; JA 98-101. The Department of

Interior instructed the Commissioners to purchase what-

ever surplus lands the Yanktons were willing to sell. JA

98-99. If the Indians were unwilling to sell all of their

surplus lands, the Commissioners were to “endeavor to

obtain the relinquishment of such part thereof as they

may be willing to part with.” Id. Entering into the

negotiations, the Commissioners were cognizant of the

attempts of the government for over a quarter century to,

* The Secretary of Interior cited his authority as the Indian

Appropriation Act for 1892 which enabled the Department to

“negotiate with any Indians for the surrender of portions of

their respective reservations, any agreement thus negotiated

being subject to subsequent ratification by Congress.” JA 98.

“civilize these Indians.” JA 145. The commissioners stated

that:

the purchase of surplus lands was but a small

part of our mission and of minor importance to

both the Indians and the Government, the provi-

sions connected therewith for the future welfare

of the Indians being of greater importance to

them and to the Government than the sale of

their surplus lands.

JA 146.

E. Negotiations between the Yankton Sioux

Indians and the United States.

1. Manner of sale of the surplus lands.

A key issue of the negotiations between the Yanktons

and the United States was the manner of sale and the

price to be paid for the surplus land. The method prefer-

red both by the Tribe, and initially by the Government,

was the “appraisement and sale” method, where individ-

ual parcels would be appraised for their value, then

offered for sale at the appraised price, with the Govern-

ment acting as sales agent for the Tribe. JA 135-39. How-

ever, the Commissioners feared that this method would

result in only the most desirable land being sold. Id. They

feared that such selective sale of tracts would require

future government commissions to come to South Dakota

to sell the less desirable surplus lands remaining unsold.

JA 136. The Commissioners decided to proceed with a

plan of direct sale to the United States; they made an

offer to the Tribe and formulated an agreement based

upon that plan. Id.

The Commissioners recognized that “the Indians had

no intention of selling their whole reservation.” JA

136-37. Instead, the Commissioners were concerned with

making an agreement that would intermix the “frugal,

moral and industrious” settlers among the Tribal allot-

ments within the reservation in order to “stimulate indi-

vidual effort and make their [the Indians] progress much

more rapid than heretofore.” Exhibit 7; Sen. Rpt. No. 196,

53rd Cong. 2d Session (1894). As Commissioners Cole

and Adams pointed out, “the surplus lands are not in one

body, but scattered over the reservation and mixed up

with the allotted lands of the Indians.” JA 137. Through-

out the entire history of the negotiations, contained in

Senate Ex. Doc. 27, 53rd Cong. 2nd Sess. (1894), Exhibit

605, the Commissioners contemplated the continuation of

the reservation by uniformly referring to the sale of the

Tribe’s “surplus” lands, but not of termination or dises-

tablishment of the reservation itself." JA 108-358.

2. Trust period.

Article IV of the 1894 Act established a trust period

of twenty-five vears, after which the Indians were to gain

fee title to their allotted lands and take on the full duties

and responsibilities of citizenship. App. 112-13. Five hun-

dred thousand dollars of the purchase price for the land

was to be held in trust by the Government for the Indians

during this period. App. 113.

* The Commission's lengthy report begins with a

description of the proposed congressional Act “relating to the

disposition of the surplus lands” of the Yankton Tribe of Sioux

or Dakota Indians. JA 108-109. Commissioner Cole told the

Indians that the “Great White Father has sent us here to treat

with you. He wants to give you a chance to sell your surplus

lands because he thinks it will be good for you... He wants you

to keep your homes forever. (How!) He only wants you to sell

your surplus lands for which you have no use.” JA 208.

The Government's allotment policy at the turn of the

century, together with the enactment of surplus land acts,

was intended to gradually phase out the reservation sys-

tem, and to assimilate Indians into American society.

Solem v. Bartlett, 465 U.S. 463, 468 (1984). Conventional

wisdom then held that Indian reservations would, within

a few years, be a thing of the past. Solem, 465 U.S. at 468.

hiowever, the trust status of Indian reservation lands was

extended repeatedly by Congress until the entire allot-

ment policy was expressly disavowed by Congress in the

Irdian Reorganization Act of 1934. Id. at n. 9.

3. Liquor provision.

During the negotiations, the Yanktons expressed

serious concerns about the active and lucrative trade in

alcoholic beverages that flourished both on their Reserva-

tion and surrounding it. JA 154-55, 603-07. Tribal leaders

feared that opening portions of the reservation to white

settlement would allow a flood of liquor into Indian

country. /d. The Commissioners agreed to include a force-

ful provision prohibiting the sale of whiskey on the Res-

ervation. 1892 Agreement, Article XVII, JA 154, 199.

4. Savings Clause.

In negotiating the 1892 Agreement, the parties made

repeated references to the provisions of the 1858 Treaty.

See, ¢.g., JA 115-16, 239, 259-62, 306-07, 315. In this regard,

the 1892 Agreement included an explicit savings clause,

which is unique among Indian surplus land agreements

of that era, both in its language and in its obvious

intended effect. App. 16, 81. Article XVIII of the Agree-

ment provides that:

Nothing in this agreement shall be construed to

abrogate the treaty of April 19, 1858, between

the Yankton tribe of Sioux Indians and the

United States. And after the signing of this

agreement and its ratification by Congress, all

provisions of said treaty of April 19th, 1858,

shall be in full force and effect, the same as

though this agreement had not been made, and

the said Yankton Indians shall continue to

receive their annuities under the said treaty of

April 19, 1858.

App. 120.

As noted above, the 1894 Act makes no reference to

new or altered Reservation boundaries, nor does it

describe any new boundaries of the Yankton Reservation.

Neither the Act nor the Agreement contains any language

that can be construed as referring to the disestablishment

of the Reservation.

Commissioner Cole reassured the Indians about the

effects of the Agreement:

I desire to congratulate you upon consummating

the best treaty which any tribe of Indians has

ever made - a treaty which if ratified by Con-

gress and successfully carried out, will benefit

your people for all time.

JA 324-25, 348.

John P. Williamson, a Presbyterian missionary,

respected and trusted by tribal members, in response to a

request by the Commissioners, stated in a letter that by

signing the agreement the Indians would not be relin-

quishing their rights under the 1858 Treaty. The Rev.

Williamson wrote:

I can say to the Indians that | believe the terms

of this agreement are the most liberal that could

be granted them at this time, and that if this

agreement is consummated I have no doubt that

the stipulations will be faithfully carried out.

Also, I consider the provisions for the care of the

poor, for schools, and for court expenses, to be

very judicious as being preparatory for full citi-

zenship. And further there is no cause for appre-

hension that this agreement will in any way

interfere with the treaty of 1858.

JA 317-18 (emphasis added).

Article XVIII also dealt with the Tribe’s concerns

about their annuities. App. 120. Tribal members believed

they would lose their annuities if they refused to approve

the land sale. JA 587-89. The annuities clause in Article

XVIII calmed the Tribe’s fears that their refusal to sign the

new Agreement would cause the government to stop

provision of their promised annuities. Id.

5. Legislative History.

The extensive legislative history relied upon by the

State includes only a fleeting reference to the Yankton

surplus land sale. Exhibit 669, JA 362-449. Discussion in

the United States House of Representatives with respect

to the opening of the Yankton Reservation for non-Indian

settlement dealt with the issue of whether or not the sale

of lands to homesteaders would contravene the intent of

the Homestead Act. JA 382-83. Congressional discussion

was silent on the boundaries of the Yankton Sioux Indian

Reservation. Id. No mention was made of any intent to

disestablish the Reservation or of any understanding that

disestablishment would be the result of the surplus land

sale. Id.

F. Opening of the reservation for settlement.

On May 16, 1895, President Grover Cleveland issued

a Proclamation opening the unallotted surplus reserva-

tion lands for settlement under the existing federal home-

stead laws. 29 Stat. 865 (1895); T. 26; JA 453-57. The lands

sold by the Tribe were described as follows:

unallotted lands within the limits of the reser-

vation set apart to said tribe by the first article

of the treaty of April nineteenth, eighteen hun-

dred and fifty-eight, between said tribe and the

United States. . .

JA 453 (emphasis added).

The Proclamation included a “Schedule of Lands

within the Yankton Reservation, South Dakota, to be

opened to settlement by Proclamation of the President,”

listing the legal description of the unallotted parcels of

reservation land. JA 456 (emphasis added).

G. Subsequent History of the Reservation Area.

1. References to “reservation” in official docu-

ments.

As the Court ot Appeals found, the lands of the

Yankton Sioux Tribe consistently have been referred to

since 1894 as the “reservation” both in official and unoffi-

cial documents. App. 33. Professor Herbert Hoover, who

has written extensively about the Tribe and who pre-

sented the only historical testimony at trial, testified that

the area at issue is nearly always referred to as the

“reservation” in the ten thousand odd documents that he

had reviewed. T. 264; See App. 33. References to “former”

or other such language in regard to the Yankton Sioux

Indian Reservation are extremely infrequent. Id.

Other government officials, charged with respon-

sibility to the Yankton Indians, continued to describe the

reservation area as continuing to exist within the 1858

Treaty boundaries. In 1903, Inspector S. F. O'Fallon,

reporting on his examination of the sales of inherited

land at the Yankton Agency, stated:

The Yankton reservation is in Charles Dix [sic]

County on the Southern border of the State of

South Dakota. It is situated on the East bank of

the Missouri river, having a river frontage of

about 33 miles, and extending back from the

river something like 20 miles. Besides the Mis-

souri river, the reservation has several small

creeks and Lake Andes, quite a large body of

water, now supplied by two artesian wells con-

structed by the Government. Three years ago a

line of the Chicago, Milwaukee and St. Paul

Railway was built through the center of the res-

ervation East to West .. . After alloting [sic] all

the members of this tribe from their tribal lands,

the remainder was bought by the Government

and has been taken as homesteads by white

settlers.

T. 30; JA 468 (emphasis added).

In 1914, Congress held hearings investigating condi-

tions on the Yankton Sioux Reservaticn. JA 477-79. In

response to a question by Representative Charles D. Car-

ter of Oklahoma about the size of the Yankton Reserva-

tion, Superintendent Leech stated that the reservation

was “About 20 by 35 or 36 miles.”* JA 479. This was the

size of the Reservation described in the 1858 Treaty.

* During previous questioning, Leech had indicated that of

the original 268,000 acres allotted to individual Indians, only

98,000 remained in their hands with the remainder sold under

the 1894 Agreement and in subsequent individual sales. JA 477.

The Eighth Circuit further noted that Felix Cohen,

perhaps the preeminent authority on federal Indian law,

while serving as Acting Solicitor of the Department of

Interior, had unequivocally concluded that the Yanktor

Sioux India’. Reservation was a “still existing unit in the

acts of April 29, 1920, (41 Stat. 1468) and June 11, 1932 (47

Stat. 300).” JA 37 (citing Letter of August 7, 1941, Opinions

of the Solicitor, Department of the Interior 1063 (1979)). In

contrast, testimony by one of the State’s witnesses, an

employee with the Department of Game, Fish and Parks,

disclosed at trial that his reference to the area as the

“former” Yankton Sioux Reservation was inspired by a

memorandum from the then Governor of South Dakota

directing State employees to refer to the Yankton Sioux

Reservation as the “former” Yankton Sioux Reservation.

JA 709-10.

2. Maps

The Eighth Circuit found that maps of the area drawn

after the 1894 Act were inconclusive as to the continua-

tion of the Reservation. App. 33. However, Titus Marks, a

realty specialist for the Bureau of Indian Affairs (BIA)

area office in Aberdeen, South Dakota, testified that the

BIA, which is charged with federal oversight of South

Dakota Indian reservations, has continually recognized

the 1858 Treaty boundaries in its maps. T. 356; JA 678.

Leech also stated that, although the allotment rolls had closed

on June 18, 1892, the allotment process on the reservation was

still proceeding, but was practically complete at the time of the

hearing. JA 478.

3. Continuity of tribal governance.

In spite of the hardships and obstacles placed in the

way of the Tribe, Tribal governance has existed continu-

ally through the time of the sale of the surplus lands in

1894 to the present. JA 541. During the third decade of

the Twentieth Century, there was a radical shift from the

federal policy of allotment and assimilation, to one of

respect for traditional aspects of Indian culture, identi-

fication of individual rights and encouragement of tribal

sovereignty and self-governance. F. Cohen, Handbook of

Federal Indian Law, Ch. 2, Sec. D1, (1982).

At the beginning of this shift in Indian policy, the

Yankton Sioux Tribe adopted its first Constitution and

Bylaws in 1932, which was limited to provisions for set-

ting up and empowering a tribal Business and Claims

Committee. Exhibit 651; JA 483-88, 541. A broader Consti-

tution was adopted in 1962, and a Law and Order Code in

1995. Exh. 652; JA 493.

4. Demographics.

Between 1970 and 1990 the Indian population of

Charles Mix County, which includes the Yankton Sioux

Reservation, increased by 116 percent, while the non-

Indian population decreased by 21.4 percent. JA 615.

According to the 1990 census, there were 1,994 American

Indians and 4,275 non-Indians living on the “Yankton

Reservation,” which the Census Bureau defined accord-

ing to its 1858 boundaries. App. 42. The Tribe has signifi-

cantly bolstered the economy of the Reservation by the

establishment, in 1991, of the Fort Randall Casino, which

has decreased unemployment on the Reservation. The

casino has provided the basis for substantial Tribal eco-

nomic development as well as for a positive economic

impact on the non-Indian residents of Charles Mix

County. App. 43. By 1993, there were 6,000 enrolled mem-

bers of the Yankton Sioux Tribe, 3,400 of whom lived on

the reservation. JA 545.

SUMMARY OF THE ARGUMENT

1. Congress expressed an intent to preserve the

boundaries of the Yankton Sioux Reservation in the lan-

guage of the 1894 Act opening the Reservation to white

settlement. The Act contains no language of “diminish-

ment,” “disestablishment” or return of the land to the

public domain. Congress did not describe new or altered

boundaries of the Reservation, but rather, incorporated

the boundaries of the 1858 Treaty into the Act.

2. The “cession” and “sum certain” language in

Articles | and Il of the 1894 Act, without a statutory

expression of Congressional intent to diminish, does not

raise a presumption of disestablishment. Both the Tribe

and the United States Government preferred an

“appraisement and sale” method of sale. The “direct” sale

method, which led to the inclusion of the “cession” and

“sum certain” language, was employed by the Commis-

sioners, not for jurisdiction or sovereignty purposes, but

because they feared that the appraisement and sale

method would require future commissions to complete

their work.

3. Article XVIIL, the “savings clause,” of the 1894

Act is unique, distinguishing the Yankton surplus land

sales Act from other land sales acts. The savings clause

twice provides that the 1858 Treaty is to be preserved.

Article XVIII preserves the boundaries of the Reservation,

while at the same time opens the land within the Reserva-

tion to white settlement.

4. The other provisions of the 1894 Act are consis-

tent with Congress’ intent to preserve the boundaries of

the Reservation. The provisions of the Act which reserved

land for school purposes to be subject to the laws of the

state indicate an intent to maintain intact the Reservation

boundaries. If the Reservation had been disestablished, as

the State contends, all of the unallotted land would be

automatically subject to the laws of the state, making that

language redundant.

In an attempt to curb the lucrative alcohol trade on

the reservation and prevent harm to their members, the

Yankton Indians insisted on the inclusion of a liquor

provision in the 1894 Act which prohibited alcohol within

the boundaries of the reservation forever. This provision

is completely consistent with — and indeed supports — the

continued existence of the Reservation.

5. The contemporaneous negotiation and legislative

history supports the conclusion that the intent of Con-

gress in 1894 was to maintain the boundaries of the

Yankton Sioux Reservation. There is no discussion con-

tained in the extensive negotiation history of the 1892

Agreement between the Tribe and the Government of

altered boundaries or of the extinction of tribal gover-

nance over the reservation area. Instead, the negotiation

history reveals a clear understanding by the Tribe and the

Government that the 1858 Treaty provisions were to be

preserved. The negotiation and legislative history of the

1894 Act are clearly distinguishable from those of the

Sisseton-Wahpeton and Rosebud Reservations.

6. There is substantial evidence in the subsequent

history of the area to support a finding that the intent of

Congress was to preserve the 1858 boundaries. The

United States Government has consistently referred to the

area as the “reservation” in statutes and documents fol-

lowing the enactment of the 1894 Act. In addition, maps

of the area have continued to show the 1858 boundaries

of the Reservation.

The Tribe has always maintained a continuum of

tribal governance over the Reservation area. Currently,

the Tribe is the largest employer within Charles Mix

County. Tribal population on the Reservation is increas-

ing, while the non-Indian population is decreasing.

7. Under the Hagen/Solem analysis, the evidence of

this case supports the holding of the United States Court

of Appeals for the Eighth Circuit that the intent of Con-

gress was to preserve the 1858 Treaty boundaries.

8. The State of South Dakota has failed to demon-

strate compelling and substantial evidence of congres-

sional intention to disestablish the Yankton Sioux Indian

Reservation. No presumption of disestablishment arises

in this case under the clear language of the 1894 Act, the

negotiation and legislative history, and the surrounding

circumstances. The most the State can argue is that the

evidence creates an ambiguity, which must be resolved in

favor of the Indians.

ARGUMENT

Legal Analytical Framework

Both of the lower courts below have held that Con-

gress did not intend to disestablish the boundaries of the

Yankton Sioux Indian Reservation by the 1894 Act, 28

Stat. 314-19. In order to reach this decision, both Courts

carefully followed the “analytical structure” developed

by this Court. App. 1-65; App. 66-97. See Hagen v. Utah,

510 U.S. 399, 410-11 (1994); Solem v. Bartlett, 465 U.S. 463,

470 (1984). Under the Hagen/Solem analysis, a Court must

examine three factors in the following order of probative

importance in order to determine whether a reservation

has been diminished or disestablished: (1) the statutory

language used to open the reservation for settlement; (2)

the historical context surrounding the passage of the

applicable surplus land act; and lastly (3) the pattern of

settlement subsequent to the Act. Hagen, 510 U.S. at 411.

“It is settled law” that some surplus land Acts dimin-

ished reservations, see, ¢.g., Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977); DeCoteau v. District County Court, 420

U.S. 425 (1975), and other surplus land acts do not, see,

e.g., Mattz v. Arnett, 412 U.S. 481 (1973); Seymour v. Super-

intendent, 368 U.S. 351 (1962); Solem v. Bartlett, 465 U.S.

463, 469 (1984). “The first and governing principle is that

only Congress can divest a reservation of its land and

diminish its boundaries.” Solem, 465 U.S. at 470.

The “most probative evidence” of the intent of Con-

gress to preserve, diminish, or terminate the boundaries

of an Indian reservation is the statutory language used to

open the reservation to settlement by non-Indians. Hagen,

510 U.S. at 411. In order to determine Congress’ intent,

courts may also examine the historical context, including

the legislative history surrounding the passage of the Act,

being “careful to distinguish between evidence of the

contemporaneous understanding of the particular Act

and matters occurring subsequent to the Act’s passage.”

Id. Finally, “and to a lesser extent,” courts may examine

events occurring immediately following the opening of

the surplus lands as well as patterns of settlement, either

of which may provide some evidence of the intent of

Congress. Solem, 465 U.S. at 471.

Guiding the entire legal analysis are established

canons of statutory construction interpreting statutes

affecting the rights of Indian tribes, canons “firmly rooted

in the unique trust relationship between the United States

and the Indians.” County of Oneida, New York v. Oneida

Indian Nation of New York, 470 U.S. 226, 247 (1985). As the

Eighth Circuit observed, because the government is sub-

ject to a fiduciary standard in negotiating with Indian

tribes, a strong presumption prevails that “reservation

lands and boundaries are to remain intact.” United States

v. Grey Bear, 828 F.2d 1286, 1289 (8th Cir. 1987).

Thus, once Congress creates an Indian reservation for

the benefit of a tribe, diminishment or disestablishment

of its boundaries will never be lightly inferred. Hagen, 510

U.S. at 411; Solem, 465 U.S. at 472. “Great nations, like

great men, should keep their word...” F.P.C. v. Tuscarora

Indian Nation, 362 U.S. 99, 142 (1960) (Black, J. dissenting).

A heavy burden rests upon the party urging disestablish-

ment to demonstrate “compelling and substantial evi-

dence of a congressional intention to diminish Indian

lands...” Solem, 465 U.S. at 472.

As a corollary to this settled approach, evidence sup-

porting a claim of disestablishment must show congres-

sional intent to terminate a reservation with sufficient

clarity to overcome the “general rule that ‘[d]joubtful

expressions are to be resolved in favor of the weak and

defenseless people who are the wards of the nation,

dependent upon its protection and good faith.’ ” DeCot-

eau v. District County Court, 420 U.S. 425, 444 (1975); see

also, United States v. Dion, 476 U.S. 734, 738 (1986). Thus,

this Court has repeatedly recognized that statutes alleged

to alter or to eliminate reservation boundaries “are to be

construed liberally in favor of the Indians .. . ” Hagen,

510 U.S. at 411 (quoting County of Yakima v. Confederated

Tribes and Bands of the Yakima Nation, 502 U.S. 251, 269

(1993)).

Ambiguities that may arise in the interpretation of

such statutes “are to be resolved in favor of the

Indians...” Hagen, 510 U.S. at 411. Moreover, the terms

of an agreement with an Indian tribe must be construed

“in the sense in which they would naturally be under-

stood by the Indians.” Washington v. Washington Commer-

cial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979).

Respondents believe that an application of these

canons of construction leads convincingly to the conclu-

sion that the 1894 Act, while opening the surplus or

unallotted Reservation lands to settlement by non-

Indians, did not terminate the Yankton Sioux Reservation.

If the Court does not find that the 1894 Act clearly

preserves the 1858 Treaty boundaries of the Reservation,

we submit that it must agree that the situation created by

the 1894 Act was, at worst (from the Tribe’s perspective)

an arnbiguous one. The State has the burden of establish-

ing that the 1894 Act unambiguously terminated the Res-

ervation. Solem, 465 U.S. at 472. This, the State cannot do.

Unless the Court is to abandon its correct and firmly

established view that ambiguities in Congressional enact-

ments respecting Indian tribes — including surplus land

acts —- must be resolved in favor of the Indians, it should

hold that the Yankton Sioux Reservation has not been

terminated. See Hagen, 510 U.S. at 411.

I. THE LANGUAGE OF CONGRESS IN THE 1894

ACT OPENING THE YANKTON SIOUX INDIAN

RESERVATION TO WHITE SETTLEMENT SHOWS

CONGRESSIONAL INTENT TO PRESERVE THE

BOUNDARIES OF THE RESERVATION AS ESTAB-

LISHED BY THE TREATY OF 1858.

A. The 1894 Act opening the Yankton Reservation

to white settlement contains no language of

diminishment or disestablishment, nor does it

return Reservation land to the public domain.

In its brief, the State of South Dakota asserts that it

has used the terms “disestablished” and “diminished”

interchangeably to mean that the former reservation

boundaries and status are “terminated” and that “Indian

Country” status attaches only to remaining or non-

extinguished allotments and dependent Indian commu-

nities. Brief of the State of South Dakota at p. 2, n. 2. The

State is thus asking this Court to abolish the entire Reser-

vation, leaving only the Indian owned allotments as

Indian Country checkerboarded throughout.!°

Under the meaning of “diminish,” the Yankton Sioux

Reservation would have been reduced in size by virtue of

the 1894 statute. But if Congress had intended to dimin-

ish, there would have been new boundaries drawn in the

1894 statute.

'0 As the Court of Appeals for the Eighth Circuit noted, the

terms “diminished” and “disestablished” are not synonymous.

Disestablishment of the Yankton reservation boundaries, which

is urged by the State in this appeal, describes the “relatively rare

elimination of a reservation as opposed to the reduction in size

of a reservation, or ‘diminishment.’” App. 6 n.4. (citation

omitted).

No such new boundaries exist.

The 1858 Treaty diminished the 11 million acre Yank-

ton Sioux Reservation, as evidenced by the inclusion of a

legal description of the new, altered Reservation con-

tained in the Treaty. Even if the Tribe did not know how

to draw new boundaries in 1892, certainly the govern-

ment did, if indeed Congress intended to diminish the

Reservation then. But no new description was ever con-

templated, discussed, or drafted in the 1894 Act. It seems

clear that the 1894 Act did not diminish the Reservation;

the remaining question is whether that Act terminated, or

“disestablished” the Reservation.

The most direct evidence of Congressional intent to

“disestablish” any Indian reservation would be express

statutory language using that term. The Court has recog-

nized that “Congress was fully aware of the means by

which termination [of a reservation] could be effected”

when drafting surplus land legislation. Mattz v. Arnett,

412 U.S. 481, 504 (1973). There is, however, no direct or

indirect language of disestablishment in the text of the

1894 Act, in the Presidential Proclamation executing the

provisions of the Act, or in any other document concern-

ing the negotiating and legislative history surrounding

the Act. The Fifty-Third Congress could have stated its

intention to eli:.inate the Yankton Sioux Indian Reserva-

tion by inserting such language if that was its intent.'! In

'! The Fifty-Third Congress knew how to unambiguously

diminish and alter the boundaries of an Indian reservation. In the

very same act that ratified the 1892 agreement between the

Yankton Sioux and the government, Congress ratified an

agreement between the Coeur d’Alene Indians and the

government which provided “for a change of the northern line of

their [Coeur d'Alene] reservation so as to exclude therefrom a

fact, the 1892 Agreement that is incorporated into the

1894 Act states precisely the opposite intention by pro-

viding that, “nothing in this agreement shall be construed

to abrogate the Treaty of April 19, 1858,” (the Treaty that

established the Reservation) and that, “all provisions of

said treaty .. . shall be in full force and effect, the same as

though this agreement had not been made... .” App.

120.

As well, there is no reference in the Act, or in any of

the related documents, to the Tribe’s surplus land being

“returned” to the “public domain,” language that was

central to this Court’s decision in Hagen v. Utah, 510 U.S.

399 (1994). In fact, the Tribe holds aboriginal title — never

extinguished — to the 1858 Reservation, and the Reserva-

tion has never been a part of the public domain. JA

470-72.

Finally, the 1894 Act states Congress’ intention that a

“part” or “portion” of the Yankton Reservation will be

open to non-Indian settlement, plainly indicating that the

Reservation would maintain its reservation status.!?

strip of land on which the town of Harrison and numerous

settlers are located.” 28 Stat. 286, 322. Congress specifically stated

that “for the purpose of segregating the ceded land from the

diminished Coeur d‘Alene Indian Reservation, [the new

boundary lines of the reservation] shall be properly surveyed and

permanently marked in a plain and substantial manner... . ” Id.

'2 For example, the preface to the 1894 Act refers to the

disposal of a “portion of the land Set apart and reserved to said

tribe. ...” App. 112. Article I of the Agreement restricts the

conveyance of title to the “unallotted lands within the limits of the

reservation set apart to said Indians as aforesaid.” App. 112-13.

Article XIII recognizes the tribal rights of mixed-blood members

as equal to other persons “who have been allotted lands on the

reservation described in this agreement ...” App. 118. Article XVII

Congress thus showed that the Yankton Sioux Act of 1894

was one of those surplus land acts that did not diminish

or disestablish an existing reservation, but that merely

opened the surplus land in an existing and continuing

Reservation to settlement by non-Indians within the Res-

ervation. See Solem, 465 U.S. at 469.

B. Article XVIII of the 1892 Agreement unequivo-

cally expresses the intent of Congress to pre-

serve the Yankton Sioux Indian Reservation

boundaries following the sale of the unaliotted

Yankton Reservation lands.

Article XVIII, the “savings clause,” distinguishes the

Yankton surplus land Act from other such Acts, and the

Yankton Reservation from other reservations which this

provides that no intoxicating liquors “shall ever be sold or given

away upon any of the lands by this agreement ceded and sold to

the United States, nor upon any other lands within or comprising

the reservations of the Yankton Sioux or Dakota Indians ...” as

described in the 1858 Treaty. (The plural reference to

“reservations” includes the Tribe’s claim to the Pipestone

Reservation and quarry which is covered in Article XVI of the

Agreement.) App. 120. The provisos attached to the Act refer to

the agency buildings “upon said reservation” and set

punishments for the selling of intoxicating liquors upon any of

the lands included in the “Yankton Sioux Indian Reservation as

created by the treaty of April nineteenth, eighteen hundred and fifty-

eight. ...” App. 123-24. (emphasis added).

In addition, President Cleveland’s Proclamation opening

the reservation for settlement included a “Schedule of Lands

within the Yankton Reservation, South Dakota, to be opened to

settlement by Proclamation of the President.” 29 Stat. 865; JA

456. The only interpretation of this language is one consistent

with the continued existence of the Reservation following the

sale of the unallotted land.

Court has found to have been diminished or disestab-

lished. Article XVIII twice indicates that the 1858 Treaty

between the Tribe and the United States establishing the

Reservation is to remain undisturbed. In its first sentence,

the Article states:

Nothing in this agreement shall be construed to

abrogate the treaty of April 19th, 1858, between

the Yankton Tribe of Sioux Indians and the

United States.

App. 120.

The second sentence of the Article then states:

And after the signing of this agreement, and its

ratification by Congress, all provisions of the

said treaty of April 19th, 1858, shall be in full

force and effect, the same as though this agree-

ment had not been made, and the said Yankton

Indians shall continue to receive their annuities

under the said treaty of April 19th, 1858.

Id.

The State argues that this provision goes well beyond

a concern for the Tribe’s annuities. However, Professor

Hoover pointed out in unrefuted testimony that the Tribe

was undoubtedly concerned about a cut-off of annuities

based upon the government's earlier action in shutting

off the annuities of another Sioux Tribe when, in the

government's eyes, that tribe misbehaved. JA 588. If con-

cern for annuities was the sole purpose of Article XVIII,

that easily could have been taken care of by saying sim-

ply, “the said Yankton Indians shall continue to receive

their annuities under the said treaty of April 19th,

1858.”'* The remainder of Article XVIII would have been

entirely unnecessary. The only reasonable interpretation

of Article XVIII, as it is actually written, is that it pre-

served intact the terms of the 1858 Treaty, including the

Reservation’s boundaries, and that the whites who pur-

chased surplus lands could enter and live on those lands.

To presume, as the State urges, that reading Article

XVIII to preserve the Reservation would prevent non-

Indians from purchasing land and entering upon the

Reservation, would be to reduce the Article to an absur-

dity. While the Tribe was at a linguistic disadvantage

during the drafting of the 1892 Agreement, the govern-

ment’s agents and the members of Congress who

approved the Agreement were not. The Agreement as a

whole clearly provides both that the Reservation should

be preserved and that surplus lands within it should be

sold for settlement by whites. The savings clause can and

should be read as being consistent with these dual pur-

poses.

Article XVIII ex,:vessly and unambiguously states

that the intention of the United States Congress was to

recognize the 1858 Treaty as the primary instrument gov-

erning the Yankton Reservation, and that the 1892 Agree-

ment served only to modify certain of its provisions. At

the time it ratified the 1892 Agreement, Congress was

aware that the 1858 Treaty provided a four hundred

thousand acre reservation for the Indians’ “quiet and

peaceable possession . . . during good behavior on their

'3 The Court of Appeals found that, “Congress knew how to

limit the reach of an annuities provision. ...” App. 19 (citing

Shoshone Tribe v. United States, 299 U.S. 476, 489 (1937) and

language from a treaty with the Shoshone Indians of Wyoming).

part.” App. 102; JA 99. There seems to be no question that

the intent of Congress in including Article XVIII was to

maintain the boundaries of the Reservation as described

in the 1858 Treaty, while at the same time opening land

within the Reservation for white settlement. As this Court

has stated, allotment and sale of Indian land is “com-

pletely consistent with continued reservation status.”

Mattz, 412 U.S. at 497.

Article XVIII is the final substantive provision of the

1892 Agreement. Articles XIX and XX deal only with

copying and signing the Agreement. As a summary of the

effect of the preceding substantive provisions, Article

XVIII contains an especially clear expression of firm con-

gressional intent that the Yankton Sioux Reservation con-

tinues to exist following its opening for white

settlement. '4

Contrary to the State’s assertions, the Crow Reserva-

tion is not analogous to the Reservation in this case. See

United States v. State of Montana, 457 F.Supp. 599, 601 (D.

Mont. 1978), rev'd, 604 F.2d 1162 (9th Cir. 1979), aff'd,

Montana v. U.S., 450 U.S. 544 (1980). Congress divested

the Crow Tribe of discrete portions of the Crow Reserva-

tion through a series of legislative enactments. Id. Each of

those agreements specifically described the boundaries of

the ceded portions of the reservation land without restat-

ing the original boundaries. Id. See also Preamble, Act of

April 11, 1882, 22 Stat. 42; Section 31, Act of March 3,

'4 Based upon his exhaustive historical research into the

Yankton Sioux Tribe and its Reservation, Dr. Hoover concluded

that the intent of Congress and the Yankton Indians was to

maintain the boundaries as established by the Treaty of 1858. JA

597-600.

24 -r wwe ee oe

1891, 26 Stat. 1039; Article I, Act of April 27, 1904, 33 Stat.

352.

In the case of the Yankton Sioux Reservation, how-

ever, the 1894 Act did not describe the parcels of land

involved in the sale. The only reference to the Yankton

boundaries occurred in the 1858 Treaty, and it is these

boundaries, expressly incorporated by reference in Arti-

cle XVIII, that describe the resulting, unchanged Reserva-

tion area. This is the conclusion reached both by the trial

court and by the Eighth Circuit, and is the only conclu-

sion consistent with all of the historical facts.'®

Article XVIII is a true “savings” clause, incorporating

by reference the provisions of an earlier act, the 1858

Treaty, in order to give the prior provisions effect. Gener-

ally, when a statute adopts a part or all of another statute

by specific reference, the original statute is given effect by

its express provisions, notwithstanding intervening

amendments or modifications. Hassett v. Welch, 303 U:S.

303, 314 (1937); Rainwater v. United States, 356 U.S. 590,

'S We also note the lack of a similar savings clause in the

Act of March 19, 1889, 26 Stat. 1035, opening the lands of the

Sisseton and Wahpeton Indians for settlement, which the State

has tried to allege is the functional equivalent of the Yankton

Act. DeCoteau v. District County Court, 420 U.S. 425, 455-60

(1975).

Similarly, the savings clauses in the serial Rosebud Acts,

which provided that “nothing in this agreement shall be

construed to deprive the . . . Indians of the Rosebud

Reservation, South Dakota, of any benefits to which they are

entitled under the existing treaties or agreements, not

inconsistent with the provisions of this agreement{.]” are clearly

limited in effect and are not the equivalent of the broad reach of

Article XVIII of the Yankton Act. See Rosebud Sioux Tribe v. Kneip,

430 U.S. 584, 623, n.11 (1977) (Marshall, J. dissenting.)

593 (1958). All of the provisions of the prior enactment

are read as though written into the subsequent statute.

Hassett, 303 U.S. at 314. See also App. 17; Colautti v.

Franklin, 439 U.S. 379, 392 (1979).

C. Article VIII and the other school lands provi-

sions of the 1894 Act support the intent of the

Fifty-Third Congress to retain the boundaries

of the Yankton Sioux Indian Reservation.

Article VIII of the 1894 Act provides that “[s}uch part

of the surplus lands hereby ceded and sold to the United

States, as may now be occupied by the United States for

agency, schools, and other purposes shall be reserved

from sale to settlers until they are no longer required for

such purposes.” App. 116.

A similar provision in the Act opening the Cheyenne

River Reservation for settlement was addressed by the

Court in Solem v. Bartlett, 465 U.S. at 474. The Court found

that the provision “strongly suggest|s] that the unallotted

opened lands would for the immediate future remain an

integral part” of the reservation. Id. The Court added that

“li]t is difficult to imagine why Congress would have

reserved lands for such purposes if it did not anticipate

that the opened area would remain part of the reserva-

tion.” Id. This “set aside” provision is totally absent from

the Sisseton-Wahpeton Agreement upon which the State

heavily relies. See DeCoteau, 420 U.S. at 455-60.

An even more direct reflection of the intent of Con-

gress is found among the provisos appended to the 1892

Articles of Agreement. Congress there spoke about the

status that the Yankton Sioux lands would have following

the opening of their reservation for white settlement:

The lands by said agreement ceded, to the

United States shall, upon proclamation by the

President, be opened to settlement, and shall be

subject to disposal only under the homestead

and town-site laws of the United States, except-

ing the sixteenth and thirty-sixth sections in

each Congressional township, which shall be

reserved for common-school purposes and be

subject to the laws of the State of South

Dakota.

App. 123 (emphasis added).

If the intent of Congress had been to disestablish the

Yankton Reservation, all of the prior reservation land

would be automatically subject to the laws of South

Dakota, making the italicized language completely

unnecessary and irrelevant. The inclusion of this provi-

sion for State jurisdiction over two sections of each town-

ship clearly indicates a Congressional understanding that

Reservation status was to continue for the area within the

1858 Treaty boundaries. A limited provision for State

jurisdiction would not have been included in the Act if

the intent of Congress was to disestablish the Reservation

and return the entire area to State jurisdictional control.

Dr. Herbert Hoover, the Tribe's historical expert, tes-

tified at trial that the “set aside” lands, or administrative

districts, were dispersed throughout the Reservation area

to be used for Tribal purposes long after the opening of

the Reservation for settlement. JA 609-11. The placement

of agencies and school lands throughout the Reservation

area would have created a massive “checkerboard” of

jurisdiction if Congress intended to otherwise disestab-

lish the Reservation boundaries. This Court has recog-

nized that any interpretation which would result in a

confusing pattern of “checkerboard” jurisdiction is dis-

favored. Seymour v. Superintendent, 368 U.S. 351, 358

(1962). Further, the United States Court of Appeals for the

Eighth Circuit has observed that a court “cannot assume

that Congress would intend to change [a] reservation to

an area without defined boundaries and, in addition,

create a confusing checkerboard pattern of jurisdiction.”

United States v. Long Elk, 565 F.2d 1032, 1039 (8th Cir.

1977).

D. The language of purchase contained in Article I

and Article II of the 1894 Act, when taken in

context with the other provisions of the Act and

surrounding circumstances, fails to create a

presumption of disestablishment.

This Court has stated that no “particular form of

words” are required, nor is there magic language which is

dispositive of a finding on the issue of disestablishment.

Hagen, 510 U.S. at 411. In order for a presumption against

the continuation of tribal governance to arise, the lan-

guage conveying reservation land at a set price must be

coupled with a further “statutory expression of congres-

sional intent to diminish.” Jd. No such statutory expres-

sion exists in the 1894 Act. Indeed, the other provisions of

that Act clearly preclude any presumption that might

otherwise arise from the “cession” and “sum certain”

language contained in the Act's first two articles, as each

of the courts below held. App. 21, 84.

Further, the sum certain provision for the sale of the

Yankton land was neither the intended nor the preferred

torm of disposal by the Yanktons of their surplus lands.

JA 136. The government's original instructions to the

Commission designated “appraisement and sale to the

——-

highest bidder” as the intended sale option. JA 100. The

Indians strongly favored this method of sale, which

would have involved the appraisal of each parcel and its

subsequent offer for sale. JA 135-36. The Commissioners,

fearing that the less desirable lands would remain

unsold, thus requiring future commissions to finish their

work, opted instead for the direct sale method. /d. Rather

than being a clear expression of Congressional intent to

divest the Yanktons of their entire Reservation, the sum

certain provision of the Agreement and 1894 Act were

nothing more than an accommodation to the Commis-

sioners’ desire to complete their work at one time. As the

Eighth Circuit correctly determined, the sum certain price

in the 1894 Act was included “for reasons other than

issues of jurisdiction and sovereignty.” App. 15-16.

E. Article XVII, the liquor provision of the 1894

Act, is consistent with the preservation of the

boundaries of the Reservation.

The State asserts that the alcohol prohibition con-

tained in Article XVII of the 1894 Act is inconsistent with

an intention of Congress to preserve the Reservation.

However, as the Eighth Circuit explained, the Yankton

Indians had a particular concern with the introduction of

intoxicating spirits onto and through their reservation.

App. 23-24. The Indians’ concern, resulting in the inclu-

sion of Article XVII, was derived from the great harm that

the lucrative alcohol traffic was inflicting on tribal mem-

bers. JA 154-55, 605-07. This concern was shared by the

federal guvernment. JA 555-56.

The inclusion of a provision in the Agreement that

liquor be banned from the Reservation is completely consis-

tent with continued Reservation status, given Congress’

plenary power over Reservation affairs. Placing respon-

sibility on the federal government for liquor control is, more-

over, inconsistent with transfer of plenary jurisdiction over

the area to the State of South Dakota, as the State contends.'©

Further evidence of Congress’s intent to maintain the

Reservation appears in the legislative history of the 1894 Act

as part of the Commissioners’ report to the Congress that:

The Indians very generally expressed their fear

that upon the opening of the Yankton Reserva-

tion to settlement by white people, drinking

saloons would be established in their midst, to

the great injury of their people, and it was made

an imperative condition of the sale, by the

Indians, that whisky should be excluded. It is

certainly to the credit of these people that they

demand that this condition should be put into

the agreement, and we hope that Congress will

fix a penalty for the violation of this provision

which will make it most effective in preventing

the introduction of intoxicants within the limits

of the reservation.

JA 154-55. (Emphasis added). -

Rosebud from the Yankton case, explaining that the Rosebud Act

only provided for a twenty-five year prohibition of alcohol,

while the Yankton Indians were insistent that liquor be

prohibited forever, irrespective of future acts of Congress

affecting their Reservation. App. 23-24. The Eighth Circuit held

that Article XVII was “not surplusage in the same manner as the

liquor provision in Rosebud, and is aot inconsistent with the

intent to preserve the 1858 boundaries ” JA 24.

2 oe tee hee ae ee ae oS dee Rider OR 6 Ae ee Me yg dele

a ltt ee a

ee ee

Because this discussion concerned the effect of the

Act after passage, the Congress and the Commissioners

without question contemplated a continuation of the Res-

ervation’s boundaries.

Il. THE LEGISLATIVE HISTORY AND THE HISTOR-

ICAL CONTEXT SURROUNDING THE PASSAGE

OF THE 1894 ACT REFLECT THE INTENT OF

CONGRESS TO MAINTAIN THE YANKTON

SIOUX INDIAN RESERVATION AS ESTAB-

LISHED BY THE TREATY OF 1858.

An examination of the legislative history and sur-

rounding circumstances relating to the 1894 Act confirms

the conclusion that Congress had no intent to alter the

boundaries of the Yankton Sioux Indian Reservation

when it passed the 1894 Act. The historical context sur-

rounding the negotiations leading up to the 1894 Act

reveal circumstances which distinguish the Yankton

Sioux Reservation from both the Lake Traverse and Rose-

bud Reservations, which were the subject of this Court's

decisions in DeCoteau and Rosebud, and upon which the

State relies heavily.

A. The legislative history of the Yankton Sioux

Reservation is clearly distinguishable from the

history of the Sisseton-Wahpeton Indian Reser-

vation.

Unlike the Yankton Agreement, the Sisseton-Wah-

peton Agreement was negotiated contemporaneously

with the allotment of the reservation lands. DeCoteau, 420

U.S. at 434-35. Pursuant to the 1889 agreement with the

government, the Sisseton-Wahpeton Indians agreed to

sell all of their unallotted lands on the condition that

“each tribal member, regardless of age or sex, receive an

allotment of 160 acres...” Id.

The Sisseton and Wahpeton bands had payments of

their annuities discontinued after the Sioux outbreak in

Minnesota in 1862. See DeCoteau, 420 U.S. at 434-35; S.

Exec Doc. No. 66, 51st Cong. Ist Sess. (1890) at 2. Pay-

ment of these back annuities and the allotments for all

tribal members were foremost in the minds of the

Indians, with the only controversy being over whether to

terminate the reservation before, or at the same time, as

the annuities were paid. S. Exec. Doc. No. 66 at 7; H.R.

Rpt. No. 1356, 51st Cong. Ist Sess. (1890) at 1.

The Indians felt that the additional allotments and

money would fully compensate them for their land and

that it “would not be proper for them also to reserve a

large quantity of land” for future educational and other

tribal purposes. Id.

In contrast, Article VIII of the 1894 Act specifically

provided for the set aside of land for schools, courts and

other tribal purposes. In addition, at the time of the

Yankton negotiations, about 95,000 acres of the Yankton

Sioux Reservation remained unallotted and were there-

fore still tribal lands. JA 117. The Yankton Sioux Indians

viewed all land held by any or all of them to be commu-

nal tribal property, thus completely belying the State’s

contention that the Yankton Sioux must have understood

that the sale of their surplus lands would mean the end of

their tribal lands. JA 144.

The DeCoteau Court relied on certain unambiguous

statements of Sisseton-Wahpeton tribal spokesmen

regarding the intent of the Indians as to their Reservation

lands, such as, “[w]Je never thought to keep this reserva-

tion in our lifetime . . . We don’t expect to keep reserva-

tion.” DeCoteau, 420 U.S. at 433. The Court considered

this evidence to be indicative of the Sisseton-Wahpeton —

tribe’s intent to accede to the disestablishment of their

reservation boundaries. The principal chief of the Lake

Traverse Indians, Gabriel Renville, clearly confirmed this

intention when he said:

Let them first settle our claim [loyal scout claim]

and then we will talk about our surplus lands.

We are now citizens and can talk with you as

such, and do not care to talk about shoe pacs,

etc., but cash. We can buy for ourselves what we

need if payment is made in cash, and then we do

not care to have an agency here after the surplus

lands have been sold.

Id. at 435, n. 16 (quoting, S. Exec. Doc. No. 66 at 19-20

(emphasis added)).

The DeCoteau Court held that:

the historical circumstances make clear, this

[cession of all unallotted land] was not because

the tribe wished to retain its former reservation

undiminished, but rather because the tribe and

the Government were satisfied that retention of

the allotments would provide an adequate ful-

crum for tribal affairs.

Id. at 446.

In contrast to the Sisseton-Wahpeton agreement,

there is nothing in the legislative history of the negotia-

tions between the Government and the Yankton Sioux

Tribe to suggest that the Reservation would not be main-

tained, or that future services would not be provided

through the Yankton agency. The contemporaneous his-

tory reveals that the Yankton Sioux did not exchange or

barter their reservation for their allotments as part of the

1894 Act. These allotments had been set prior to any

negotiations for the sale of the surplus lands. As well, the

contemporaneous history of the Yankton Sioux transac-

tion does not reveal any expressions by Tribal spokesmen

that either they, or any other Tribal member, saw the sale

of the surplus lands as terminating the Reservation.

Unlike the agreement in DeCoteau, the 1894 Yankton

Act expressly called for certain lands to be set aside for

agency, school and other future purposes. These provi-

sions are inexplicable unless Congress intended to main-

tain the boundaries of the Reservation. Neither is there

any indication that the Tribe nor the United States Gov-

ernment saw the retention of allotments by the Yankton

Sioux as providing an “adequate fulcrum for tribal

affairs.”

B. The legislative history of the Yankton Sioux

Reservation is clearly distinguishable from the

history of Rosebud Sioux Indian Reservation.

Clear distinctions also exist in the circumstances sur-

rounding the surplus land acts which opened to white

settlement several counties originally included in the

Rosebud Indian Reservation. In Rosebud v. Kneip, this

Court found in the legislative history repeated references

to the fact that the size and shape of the Rosebud Reser-

vation would be changed. Rosebud, 430 U.S. at 591.

Among these are the following:

[t]he cession of Gregory County .. . will

leave your reservation a compact, and

almost square tract, and would leave your

reservation about the size and area of Pine

Ridge Reservation.

Id. at 593.

I am here to enter into an agreement which

is similar to that of two years ago, except for

the manner of payment. . . You will still

have as large a reservation as Pine Ridge

after this is cut off.

Id. at 595.

There is no question but what the Indians

have no use for the land that is proposed to

be ceded by this bill; that the tract is only a

very small portion of the Rosebud Reserva-

tion, and is really only a corner of the reser-

vation, which will be left compact and in a

square tract and a reservation about equal

in size to the Pine Ridge Reservation, in

South Dakota...

Id. at 595.

The Rosebud Court concluded that such language

evinced a clear intent to change the boundaries of the

reservation. No such language regarding the Yankton

Sioux Indian Reservation exists, either in the legislation

itself or in the legislative history surrounding the sale of

the surplus lands.

C. The United States Government’s instructions to

the Commissioners are inconsistent with an

intent to disestablish the Reservation.

The Commissioners were instructed to attempt to

purchase only that part of the surplus lands within the

Yankton Indian Reservation that the Indians were willing

to sell. JA 98-100. The instructions from the Department

of Interior stated:

If they [the Yankton Sioux] are unwilling to cede

all the surplus land you will endeavor to obtain

the relinquishment of such part thereof as they

may be willing to part with.

Id. at 99.

The Indians, therefore, had complete control of the

amount of unallotted land within their Reservation that

they wished to sell. This Tribal control over the amount of

Reservation land to be opened to settlement is obviously

inconsistent with an understanding that the Reservation

was to be terminated. Applying the supposed “almost

insurmountable presumption” of disestablishment, how-

ever, the State apparently argues that, had the Yankton

Indians agreed to “cede, sell, relinquish and convey” only

one acre of their land for a set price, the result would

have been to disestablish the entire 430,495 acre Reserva-

tion.

Addressing the language in the Instructions to the

Commissioners, the Eighth Circuit stated that:

[t}hese instructions are consistent with the mis-

sion to secure land for settlement and to expose

Tribal members to white settlers. Had the intent

been the elimination of the reservation, it would

have been necessary that all surplus lands be

purchased |as the only option for the commis-

sioners].

App. 29 (emphasis added). The fact that the Commission-

ers were not required to acquire all the surplus land flies

in the face of the State’s contentions that Congress

intended to do away with the entire reservation.!7

'? The State also argues that the legislative history of the

1894 Act supports an inference of diminishment, focusing on an

out-of-context dialogue contained in the transcript of a House

hearing on the 1894 Act in which the words, “public domain”

were used. JA 382-83. The words, however, were used in a

Ill. THE PATTERN OF SETTLEMENT AND JURIS-

DICTION SUBSEQUENT TO THE 1894 ACT

DOES NOT OVERCOME THE CLEAR INTENT

OF CONGRESS TO PRESERVE 1858 TREATY

BOUNDARIES OF THE YANKTON SIOUX

INDIAN RESERVATION.

A. The de facto evidence is unreliable.

At the trial in this case, the State relied almost

entirely upon testimony relating to demographic and

jurisdictional history of the area subsequent to the 1894

Act, urging the trial court and the Court of Appeals to

rule that the Yankton Sioux Reservation had been subject

to so-called de facto disestablishment. The State, lacking

support for its position in the proper historical record,

leans heavily on de facto disestablishment in its brief in

this Court. The Court, however, has never based a dises-

tablishment decision on such evidence. See Solem v. Bar-

tlett, 465 U.S. 463, 481 (1984); Rosebud Sioux Tribe v. Kneitp,

430 U.S. 584, 615 (1977); DeCoteau v. District Court, 420

U.S. 425, 445 (1975).

In Solem, the Court stated that the subsequent history

of a reservation area can merely provide “one additional

clue” as to what Congress intended in opening land on a

particular reservation to non-Indian settlers. Solem, 465

U.S. at 472. The controlling factor remains the clearly

stated intention of Congress at the time of the enactment

of the particular surplus land Act as found on the face of

the Act, and in light of the contemporaneous historical

discussion of the meaning and applicability of the Homestead

Act, not with regard to the continuation of Reservation status.

Id.

context. Subsequent “de facto” evidence cannot disestab-

lish a reservation that Congress did not intend to dises-

tablish at the time the surplus land legislation was

enacted.

Indicia of subsequent demographics and jurisdic-

tional assertions, are, therefore, “at best, confusing and

unenlightening.” Rosebud, 430 U.S. at 604 n. 27. This is

true especially when there is substantial evidence on the

face of the Act and in the contemporaneous record that

Congress did not intend to disestablish the Reservation.

Solem, 465 U.S. at 472.

The State’s reliance on de facto evidence must also be

closely scrutinized in light of the fact that the conven-

tional wisdom at the turn of the century was that the

allotment policy would lead to the eventual demise of the

reservation system a generation after the opening of res-

ervations. Som, 465 U.S. at 468. This “turn-of-the-cen-

tury assumption” was followed by a drastic sea-change in

federal policy in the 1930's - a change that repudiated the

allotment policy and encouraged tribal reorganization

and reestablishment of the tribal land base and tribal

sovereignty. Id.

B. The rare use of the term “former” in a few

documents does not indicate the intent of the

Congress to disestablish the boundaries of the

Yankton Sioux Indian Reservation.

In its de facto argument, the State relies on several

unrelated, and informal statements in the century-long

historical record which refer to the “former” Yankton

Reservation.'* However, as the Eighth Circuit noted, Dr.

Herbert Hoover testified at trial that he had examined

nearly ten thousand documents related to the Yankton

surplus land act and subsequent events and found only a

few, infrequent references to the “former” reservation,

such as those few relied on by the State.'? App. 33.

C. Maps showing the Yankton Sioux Indian Reser-

vation are inconsistent in their treatment of the

area.

As in prior diminishment/disestablishment cases

which have been decided by this Court, each side in this

case presented maps at trial as evidence supporting its

claims. The Eighth Circuit found, however, that the maps

ultimately prove little except that there was some confu-

sion both inside and outside the government about the

18 The State argues that this case should be controlled by

Perrin v. United States, 232 U.S. 478 (1914). This argument has

been rejected by each of the courts below and even by the South

Dakota Supreme Court, which in its latest decision regarding

the Yankton Sioux Indian Reservation acknowledged that

“Perrin cannot be considered res judicata as it did not

specifically deal with diminishment ...” App. 157, n. 13. The

trial court and the Eighth Circuit similarly determined that

Perrin dealt solely with the issue of whether or not Congress had

the authority to criminalize liquor sales on land sold to non-

Indians pursuant to surplus land acts. App. 25 n. 18.

1% The attempt by the State to create “new facts” is

evidenced by the trial testimony of one of the State’s witnesses,

Ron Catlin, an employee of the South Dakota Department of

Game, Fish and Parks, who conceded during cross-examination

that Governor William Janklow, during his prior term as

Governor, issued a memorandum to State employees directing

them to use the term “former Yankton Sioux Reservation.” JA

709-10.

status of the Reservation. App. 33. In fact, if one were to

accept the State’s arguments, portions of the Cheyenne

River Reservation, ruled to be undiminished by this

Court in Solem, would have been found to be de facto

terminated by a General Land Office map in 1910. JA 722.

As late as 1914, during questioning by a Congres-

sional panel, A. W. Leech, Superintendent of the Yankton

Agency, was asked how large the reservation was. In

response, he stated “[a]bout 26 by 35 or 36 miles,” which

is the size of the area encompassed by the 1858 bound-

aries.2° JA 478-79. These same boundaries and dimen-

sions are still recognized by the Bureau of Indian Affairs

today, according to Real Estate specialist Titus Marks of

the Bureau's Area Office in Aberdeen, South Dakota. JA

678.

D. Assertions of jurisdiction by the State of South

Dakota do not constitute evidence of disestab-

lishment.

After the opening of the unallotted lands of the Yank-

ton Sioux Reservation to white settlement, the State of

South Dakota immediately began a policy of asserting

state jurisdiction on tribal lands, attempting to displace

Tribal authority. See, e.g., Exh. 17, (letter of Indian agent

resisting claim of State of South Dakota for land as

“indemnity for school lands”), T 30. See also Exh. 78, T 95,

JA 534. The Yankton Indians resisted these initial incur-

sions into their sovereignty, but the State has never let up

2° In its brief, the State argues that the reservation has been

diminished to “one mile square.” However, as Professor Hoover

explained in his testimony at trial, the “mile square” referred to

by the State is the agency area clearly referred to in the

negotiation history. JA 120, JA 611.

in its efforts to assert its authority over Tribal lands, as is

evident from the current appeal.

At trial, the State relied almost entirely on de facto

evidence of State assertions of authority over the Reser-

vation area. The State is essentially claiming adverse

possession, not of land ownership, but of jurisdiction - an

unusual and incorrect theory of reservation termination.

Both in its Enabling Act and in its Constitution, the

State of South Dakota has foresworn jurisdiction over

Indian lands. 25 Stat. 676 (Feb. 22, 1889), Resp. App. 1;

Const. of South Dakota, art. XXVI, § 18, Resp. App. 2.?'

The State has since had three separate opportunities to

assume jurisdiction legally over Indian Country in South

Dakota but failed to do so. Annis v. Dewey County Bank,

335 FSupp. 133 (D.S.D. 1971); See also, State v. Spotted

Horse, 462 N.W.2d 463, 466-68 (S.D. 1990), citing Rosebud

Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir. 1990).

21 South Dakota Constitution, article XXVI, § 18 provides:

That we, the people inhabiting the state of South

Dakota, do agree and declare, that we forever

disclaim all right and title to the unappropriated

public lands lying within the boundaries of South

Dakota; and to all lands lying within said limits

owned or held by any Indian or Indian tribes, and

that until the title thereto shall have been

extinguished by the United States the same shall be

and remain subject to the disposition of the United

States, and said Indian lands shall remain under the

absolute jurisdiction and control of the Congress of

the United States;. . . .

E. The current demographic trends support affir-

mance of the Court of Appeal’s ruling.

The State argues that the “justifiable expectations” of

the non-Indian population of Charles Mix County would

be destroyed if the boundaries are maintained intact by

this Court. However, the sky has not fallen in on the

multitude of Indian reservations throughout the United

States where reservation boundaries have been main-

tained.

This Court in DeCoteau dismissed an identical argu-

ment that “an end to state jurisdiction would be calam-

itous for all the residents of the area, Indian and non-

Indian alike.” DeCoteau, 420 U.S. at 449. This Court stated

that “|[t}hese competing pleas are not for us to adjudge,

for our task is a narrow one,” i.e., to interpret the intent

of Congress in passing the Act opening the reservation

for settlement. I/d.

The demographics of the Yankton Sioux Reservation

are moving in a direction consistent with Tribal sover-

eignty. The Yankton Sioux Tribe is now the leading

employer, not only within the boundaries of its Reserva-

tion, but within all of Charles Mix County. Its casino

employs hundreds of workers, and allows the Tribe to

invest in other economic development projects. App. 43;

JA 696-97. Tribal population has been increasing, while

the non-Indian population within the Reservation has

steadily decreased as the rural economy of the county

flounders. JA 615.

As the Eighth Circuit found below, even if de facto

diminishment were possible, in spite of the lack of Con-

gressional intent in the 1894 Act and its legislative his-

tory, the record would not support it here. App. 43.

IV. THE RESULT IN THIS CASE IS, IN ALL EVENTS,

DICTATED BY THE RULE THAT AMBIGUITIES

IN STATUTES OR AGREEMENTS INVOLVING

INDIANS MUST BE RESOLVE!’ IN FAVOR OF

THE INDIANS.

The preceding analysis of the text, history and con-

text of the 1894 Act conclusively shows, we believe, that

the Act did not terminate the Yankton Sioux Reservation.

Even if this were not clear, however, the Tribe would be

entitled to prevail in this case through application of the

rule that ambiguities in surplus land acts be resolved in

favor of the Indians. Hagen, 510 U.S. 411. That canon of

interpretation has a strong and reasoned basis in public

policy, as well as in the trust relationship that exists

between the U.S. and the tribes. /d.

The traditional solicitude toward Indian tribes by this

Court is based in part upon the bargaining realities of the

relationship between the tribes and the government.

DeCoteau, 420 U.S. at 444. The Court has recognized that,

when the United States government negotiated with

Indian tribes, the government was by far the stronger of

the two parties. Washington Commercial Passenger Fishing

Vessel Ass'n, 443 U.S. at 676. The Indians were negotiating

in a language with which they were neither fluent nor

conversant, and were at the mercy of non-Indian negotia-

tors who were experienced both in business and in nego-

tiating. Id. The Indians relied — at their peril — upon

interpreters who were paid by the government, and in

the case of the Yankton Sioux Tribe, interpreters who

were promised choice land if the Tribe could be con-

vinced to go through with the surplus land sale. JA

187-88. In particular, the Yankton Sioux Tribe was

approached to sell their surplus lands at a time when

drought and grasshoppers had devastated their crops,

and were extremely vulnerable to promises of what was

for them, large sums of money. JA 576-77.

This Court’s precedents properly require that ambi-

guities which arise in such a situation be resolved in

favor of the Indians. Hagen, 510 U.S. at 411. We submit

there are no ambiguities here — that Congress clearly did

not intend to terminate the Yankton Reservation through

the 1894 Act. But even if some doubts were to exist

regarding Congress’ intent, those doubts could not lead

to a finding of disestablishment. Such a finding is proper

only where the State meets its unambiguous burden of

demonstrating congressional intent to terminate the Res-

ervation. That burden has not been satisfied here.

V. THE “ALMOST INSURMOUNTABLE PRESUMP-

TION” Cr DISESTABLISHMENT RELIED UPON

BY THE STATE VOES NOT APPLY IN THIS CASE.

Not being able to demonstrate compelling and sub-

stantial evidence of a Congressional intention in 1894 to

terminate the Reservation, the State seeks to prevail by

reversing the normal presumption of continuation of res-

ervation status, replacing it with a presumption of reser-

vation termination. It attempts this by using the “cession”

and “sum certain” language in the 1894 Agreement.

Under this Court’s precedents, no such presumption

flows mechanically from the mere presence of two brief

clauses in a surplus land Act, irrespective of the remain-

der of the Act, the legislative history, and the relevant

surrounding circumstances. A mechanical rule of that

kind would conflict with the Court’s repeated admoni-

tions that disestablishment and diminishment cases must

Ott tll ON ele a oo

be decided on the basis of Congress’ actual intent when

enacting the relevant surplus land Act.

The presumption invoked by the State is described in

Solem. In order for it to arise, language conveying reser-

vation land at a set price must be coupled with further

“statutory expression of Congressional intent to dimin-

ish.” Solem, 465 U.S. 470-71. If the only language in the

Act relevant to Congressional intent is the language of

cession and sum certain, and if there are no contrary

indications in the legislative history and surrounding

circumstances, it may then be proper to employ a pre-

sumption of diminishment. Jd. But such a presumption is

improper when the language of the Act, the legislative

history, and the historical context indicate, as they do in

this case, the strong probability that Congress did not

intend disestablishment. Here, as we have shown in this

brief, and as the Eighth Circuit held, all signs point

toward an intention and understanding on the part of

both the Tribe and the United States that the Reservation

was to continue.

To employ a presumption of disestablishment in that

situation would be to abolish — indeed to reverse — the

rule that those challenging the continuation of reserva-

tion status have the burden of demonstrating termination

by clear and convincing evidence. It would also reverse

the time-honored rule that ambiguities in statutes and

agreements involving Indians are to be resolved in favor

of the Tribes, and not against them. See Hagen, 510 U.S. at

411.

CONCLUSION

The decision of the United States Court of Appeals

for the Eighth Circuit should be affirmed.

Respectfully submitted,

James G. ABOouREZK

Counsel of Record

Bossie J. RasmMuUsSON

Asourezk Law Orrices, P.C.

P.O. Box 1164

Sioux Falls, SD 57101

(605) 334-8402

MicHaet H. SCARMON

ScARMON Law OFFICE

P.O. Box 220

Elk Point, SD 57025

(605) 356-2878

Pau BENDER

2222 North Alvarado Road

Phoenix, AZ 85004-1414

(602) 253-8192

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