Reply Brief — South Dakota v. Yankton Sioux Tribe

(a y

No. 96-1581

In The

Supreme Court of the United States

October Term, 1997

+

STATE OF SOUTH DAKOTA

YANKTON SIOUX TRIBE, a federally recognized

tribe of Indians, and its individual members;

DARRELL E. DRAPEAU, individually, a member

of the Yankton Sioux Tribe,

j

Respondents

an d

SOUTHERN MISSOURI WASTE MANAGEMENT

DISTRICT, a nonprofit corporation,

Res vpondent

—@

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

—— — . - —

REPLY BRIEF OF THE STATE OF SOUTH DAKOTA

Mark W. BARNET

Attorney General

State of South Dakota

Counsel of Record

JOHN Patrick GUHIN

Deputy Attorney General

59) East Capitol Avenue

Pierre, SD 57501-5070

Telephone (605) 773-3215

; “ ry

ti Z| , state aa

_OUNSE! ror retitioner

TABLE OF CONTENTS

i ee iii

PNG S50 kb SCL Gla pp OP o awees vehic edocs |

Oka dabei iad és wb ehsbut a Vi oe Sbks biece vc I

I. THE “ALMOST INSURMOUNTABLE PRE-

SUMPTION” OF DISESTABLISHMENT CRE-

ATED BY “CESSION AND SUM CERTAIN”

LANGUAGE IN THE 1894 YANKTON AGREE-

MENT HAS NOT BEEN OVERCOME ........ I

A. The “Almost Insurmountable Presumption”

Arose Notwithstanding Allegations Regard-

a ET oe eee nt eee 3

B. The “Almost Insurmountable Presumption”

Arose Notwithstanding the Fact That Lands

Retained by the Tribe Were Scattered

Throughout the Area About to Be Disestab-

IE eA UUe eed s deb ews eek sas rodeo cicce 4

C. The “Almost Insurmountable Presumption”

Arose Notwithstanding That the Original Pro-

posal by the Government Was for “Appraisal and

Sale to the Highest Bidder.”................ 4

D. The 1894 Act May Not Be Reasonably Read

to Alter Only a Few Words of the 1858

REA G Sian anos bid abe Wad awe kee bee o « 6

Il. CONTRARY TO THE ARGUMENTS MADE BY

THE TRIBE AND THE UNITED STATES,

OTHER PROVISIONS OF THE 1894 AGREE-

MENT SUPPORT DISESTABLISHMENT ...... 8

A. The Liquor Provision Strongly Indicates Dis-

REESE SER eae od eer 8

IV.

TABLE OF CONTENTS -— Continued

Page

The Provision of the Act Reserving Sections

16 and 36 for Schools Demonstrates Dises-

sabbatanees o.oo c'c cea vice vb e¥uateet ere

THE NEGOTIATIONS BETWEEN THE TRIBE

AND THE UNITED STATES AND THE EXECU-

TIVE PROCLAMATION DEMONSTRATE DIS-

BSTABDLIGHBGGING 2... csccccvcvscdéccsscesses

A.

The Negotiations Between the Tribe and the

United States Indicate a Recognition of Dis-

eatebblaGNOGs «oo ccccscédccnbepssenéenees

The Presidential Proclamation Indicates Dis-

entabtehenaet oc ovicvckts dete ee aes

THE JURISDICTIONAL HISTORY OF THE AREA

FOLLOWING THE 1894 ACT STRONGLY SUP-

PORTS DISESTABLISHMENT ................--

A.

The Parties Do Not Dispute the State’s Exclu-

sive Exercise of Jurisdiction in the Area....

Contrary to the Argument of the United

States, the Perrin Case Demonstrates Dises-

calbGieenaes . «occa co neawtssteba canes eaves

The 1941 Opinion of the Acting Solicitor Has

Been Shown to Be Based Upon Faulty Premises

of Law and to Be Contradicted by the Author and

The Tribe’s Other Arguments as to Reserva-

tion Status Are Without Merit .............

Land and Population Developments Strongly

Support Disestablishment ....-- ~~. -..+-+5+>

CONCLUSION .... 0. ccc cece tt tenet teen eee ennns

10

10

12

12

13

TABLE OF AUTHORITIES

Page

Cases Crrep:

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

bc ivcaiGin Cis was 66s et ews cersceoesees passim

Dollar Savings Bank v. United States, 86 U.S. 227

eee U er habeas ehwee Geer gasecedbunesioves 6

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

Perrin v. United States, 232 U.S. 478 (1914) ...13, 14, 15

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

Russello v. United States, 464 U.S. 16 (1983)........... 4

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

South Dakota v. Bourland, 508 U.S. 679 (1993)........ 16

State v. Greger, 559 N.W.2d 854 (S.D. 1997) ....... 12, 13

United States v. Forty-three Gallons of Whiskey, 93

Nee ode eates 8, 15

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

Ns eeeebsoseces 5

Yankton Sioux Tribe v. United States, No. 332-D (Ct.

EE 10

Yankton Sioux Tribe v. Southern Missouri Waste Man-

agement District, 99 F.3d 1439 (8th Cir. 1996) ...... 14

SraruToryY REFERENCES:

NEE te 20 .

EET ED 20

al i ae 20

OS 11

iv

TABLE OF AUTHORITIES — Continued

Page

Agreement with the Yankton Sioux or Dakota Indians,

in South Dakota, 1892, ratified, 28 Stat. 286, 314

SPEEDS Gab bvtn0eseedegnssdecsh bah memnididadns passim

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

WE QRRDODS ows cus vaun bodedts denueeks dodunhes 6, 10, 11

Orner AUTHORITIES:

59 Fed. Reg. 16649 (Apr. 7, 1994).................... 15

H.R. Rep. No. 7613, 59th Cong., 2d Sess. (1907)...... 10

S. Exec. Doc. No. 27, 53d Cong., 2d Sess. (1894) ..... 8

S. Exec. Doc. No. 66, Sist Cong., Ist Sess. (1890) .... 17

te

l

INTRODUCTION

This brief replies to the arguments of the Tribe and the

United States on the issue of whether the Yankton Reservation

has been disestablished.' As we demonstrate below, these

arguments are fatally flawed in that they seek to system-

atically avoid the force of the “almost insurmountable pre-

sumption” of disestablishment created by the use of “cession

and sum certain language” in the Yankton Agreement; they

likewise virtually ignore the century long, exclusive exercise

of jurisdiction in the now disputed area by the State of South

Dakota. Other arguments unsuccessfully attempt to create

ambiguity where none actually exists. In sum. the presump-

tion arising from “cession and sum certain language” applies

here. It has net been shown to have bee overcome. and the

reservation should be found to be disestalblisted.

ARGUMENT

I. THE “ALMOST INSURMOUNTASLE PRESUMP.-

TION” OF DISESTABLISHMENT CREATED BY

“CESSION AND SUM CERTAIN” LANGUAGE IN

THE 1894 YANKTON AGREEMENT HAS NOT

BEEN OVERCOME.

This Court has found that an “almost insurmountable

presumption” of diminishment, Solem v. Bartlert, 465 US.

463, 470-71 (1984), or a “nearly conclusive presumption” off

diminishment, Hagen v. Utah, 510 U.S. 399, 411 (1994),

arises from “cession and sum certain” language used in a

surplus land act. See also DeCoteau y. District Coumty Court.

420 U.S. 425, 445-46 (1975).

' As used herein, “App.” refers to the Appendix to the Petition Yor

Writ of Certiorari; “JA” refers to the Joint Appendix; “TB” refers wo the

Brief on the Merits of the Tribe and Darrell Drapeau; “USB” refers to the

Brief on the Merits of Amicus Curiae United States: “SDB” refers to the

Brief on the Merits of the State of South Dakota; “DCO” refers to the

District Court's Opinion below.

2

Neither the Tribe nor the United States denies that Arti-

cles I and II of the Yankton Surplus Land Act (Agreement

with the Yankton Sioux or Dakota Indians, in South Dakota,

1892, ratified, 28 Stat. 286, 314 (1894)), App. 112-13, pro-

vide for a “cession” of lands for a “sum certain.” Accord-

ingly, the “almost insurmountable presumption” of

diminishment obtains here. Unless other features of the 1894

Agreement and its history fully and decisively contradict a

finding of diminishment or disestablishment — and they do not

~ the Tribe cannot prevail.? See Yankton Sioux Tribe v. South

Dakota, App. 47 n.29 (Magill, J., dissenting) (discussing

weight of evidence needed to overcome the presumption).

Neither the Tribe nor the United States directly argues

that the “almost insurmountable presumption” has been over-

come in this case and thus they essentially concede it cannot

be overcome.’ Instead, in the face of this stark legal and

factual background, the Tribe and the United States take three

tacks to avoid the presumption, none of which have merit.

? Following the lead of this Court, we have used the terms

“diminishment” and “disestablishment” interchangeably to denote the

elimination of the boundaries of the reservation within the affected area.

See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 598 n.20 (1977) referring

to DeCoteau as recognizing “disestablishment” and Solem, 465 U.S. at 469

n.10, stating DeCoteau found Lake Traverse Reservation “diminished.”

Thus, within the affected area, “Indian country” status attaches to

remaining or nonextinguished “allotments,” see 18 U.S.C. § INSi(c);

DeCoteau, 420 U.S. at 427-28 & n.2, and “dependemt Indian

communities.” 18 U.S.C. § 1151(b). The State has respected, see generally

T 645-646, JA 685-86; T 732, and will continue to respect the special

Status, jurisdictional and otherwise, of such lands in accordance with

developing federal law. See Solem, 465 U.S. at 467: United States v.

Stands, 105 F.3d 1565, 1571-1572 (8th Cir. 1997).

* The United States in two sentences at USB 12 indicates that it might

be prepared to argue the point, but its discussion slides into assertions

relating to modes of construction. See USB 13-14.

3

A. The “Almost insurmountable Presumption” Arose

Notwithstanding Allegations Regarding Other

Factors.

The Tribe and the United States first argue that if other

factors cut against diminishment or disestablishment, the pre-

sumption does not apply. TB 48-49; USB 10-11. This turns

the presumption recognized by this Court on its head. Where

there is “cession and sum certain” language, the powerful

presumption of disestablishment exists and neither the Tribe

nor the United States cites any authority to the contrary.4

Other factors can help the tribal case only if they can some-

how overcome the presumption. Thus, the Solem court did not

qualify its recognition of when the presumption arises by

Stating that it would be contingent on factors such as other

language in the agreement, Solem, 465 U.S. at 474: the

negotiating history, id. at 476-77; the congressional history,

id. at 477-78; or the subsequent treatment of the area, id. at

478-480. Likewise, the recognition of the presumption in

Hagen, 510 U.S. at 411, is unqualified.

The repeated argument that the Tribe should prevail

because other factors are ambiguous is simply wrong. Even if

the meaning of the factors were ambiguous (and we demon-

strate below that they buttress the presumption), any such

ambiguity would fall far short of the clear-cut proof necessary

to overcome the presumption, and the State would prevail.

* Neither the United States nor the Tribe has even attempted to refute

the State's explanation of “great weight” of the presumption as flowing

both from Indian law and international law understandings. See SDB 16

n.8.

4

B. The “Almost Insurmountable Presumption” Arose

Notwithstanding the Fact That Lands Retained by

the Tribe Were Scattered Throughout the Area

About to Be Disestablished.

The United States also argues that the “cession” and

“sum certain” language should be accorded little respect here

because the “ceded lands were scattered over the reservation.”

USB 11. This argument finds no support in this Court's

decisions or in history. In the first place, the presumption

exists because of the powerful and plain import of “cession”

and “sum certain” language in the operative sections of the

1894 Agreement. That language is no less powerful and plain

when the allotments are scattered throughout the reservation

prior to their sale. And it is too late in the day for such an

argunient. Disestablishment of the Lake Traverse Reservation

was found even though “trust allotments are scattered in a

random pattern throughout the 1867 reservation area.” DeCot-

eau, 420 U.S. at 428; see also id. at 466 (Douglas, J.,

dissenting).

C. The “Almost Insurmountable Presumption” Arose

Notwithstanding That the Original Proposal by

the Government Was for “Appraisal and Sale to

the Highest Bidder.”

The Tribe appears to argue that the 1894 Agreement

cannot be read as a “cession and sum certain” arrangement

despite its plain language because an original suggestion of

the government was for an “appraisal and sale to the highest

bidder” and not for a “cession and sum certain” agreement.

See TB 7-8, 32-33; see also USB 3 n.2. What matters, how-

ever, is not a never-adopted proposal, but the final cession

and sum certain arrangement. See generally Russello v.

United States, 464 U.S. 16, 23-24 (1983). The history of the

disestablishment of the Sisseton Reservation confirms this

analysis. In the Sisseton case, the instructions to the negotia-

tors indicated that it might be “ ‘inadvisable’ ” for the Tribe

to sell all of its surplus lands. DeCoteau, 420 U.S. at 434.

Nonetheless, all the surplus lands were sold, and the Court's

5

analysis proceeded on the basis of what actually occurred to

find that the reservation had been disestablished.‘

Second, both the United States (USB 3 n.2) and the Tribe

(TB 32-33) appear to argue that the Tribe ultimately was

willing to adopt the direct sale method instead of the appraisal

and sale method because only by the direct sale method could

the Tribe sell all of its land. But both ignore the further

implication of their argument: The desire of the Tribe to sell

all of its surplus land should have raised the presumption,

even for the majority below, that the Tribe desired the reser-

vation to be disestablished. As the majority stated (in analyz-

ing the original intent question) at App. 29: “Had the intent

been the elimination of the reservation, it would have been

necessary that all surplus lands be purchased.”

Third, this argument has already been litigated. The

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

176 (Ct. Cl. 1980), urged that the 1894 Agreement should be

“revised for the purposes of this case” to constitute an

“appraisal and sale” arrangement but the court of claims

found that the facts did not support the revision:

it appears from the record that the Indians were

willing to sell the subject lands directly to the

United States for a proper price. At most, it could

be said there was a split among members of the

tribe as to how they wanted to dispose of the land.

Id.°

* The Tribe implies at TB 6 and 36 that “95,000 acres” remained in

its possession after 1894. In fact, as the Interior document set out at JA

98-99 establishes, the “95,000 acres” in question consisted of “allotments

made” but simply not yet “examined and approved.” See also Exh. 605, JA

117.

© The court stated that there “may have been some overreaching” but

it could not conclude that “such behavior amounted to fraud or duress.”

Yankton Sioux Tribe v. United States, 623 F.2d at 176.

6

D. The 1894 Act May Not Be Reasonably Read to

Alter Only a Few Words of the 1858 Treaty.

The United States argues that, in light of Article XVIII,

the Act may “reasonably be read as simply opening the

surplus lands” while preserving reservation boundaries and

the Tribe’s “right of self-government within them.” USB 14.

According to the United States “the [1894] Agreement thus

modifies only that portion of Article 10 of the 1858 Treaty

[Treaty with the Yankton Sioux, 1858, ratified, 11 Stat. 743

(1859)] that excluded white settlers from the Reservation”

(/d.) or, in other words, only the first part of the first sentence

of Article 10 (about 45 words).’

The United States, in presenting this argument, fails to

prove (or even assert) that the “almost insurmountable pre-

sumption” created by “cession and sum certain” language has

been overcome. The United States also ignores the fact that

the primary focus of disestablishment litigation is the “opera-

tive language” of an agreement. See, e.g., Hagen, 510 U.S. at

412-14; Solem, 465 U.S. at 472, 473 n.15, 474; Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584, 593 n.15 (1977). Indeed, Hagen

might have been decided differently had the placernent of

critical agreement language been different. See generally

Hagen, 510 U.S. at 413; see also Solem, 465 U.S. at 474-75.

The United States, contrary to the case law, seeks to subordi-

nate the “operative language” of the 1894 Agreement in favor

of other language, and its argument should be rejected.

Next, the United States fails to point to any precedent, in

any context, in which a savings clause has negated the heart

of an agreement or a statute. See generally Dollar Savings

Bank v. United States, 86 U.S. 227, 236 (1873): (“broad

construction” of a “proviso” in an act of the legislature will

not be allowed when it is “plainly repugnant to the body of

the Act”).

7 The United States thus reads at least one provision “out of a

statute,” contrary to its own statutory construction argument. See USB 13.

J

In addition, we note that the United States (USB 12-13)

and the Tribe (TB 26) both put some emphasis on the fact that

Article XVIII contains two separate sentences which are

claimed to preserve reservation boundaries. Neither sentence

references reservation boundaries, however, and the second

sentence does, in fact, refer directly to the preservation of

“annuities,” App. 120, a critical matter for the Tribe. See T

54-55, JA 588-89. See also SDB 21-23 (other monetary

claims of concern to the Tribe). Neither the Tribe nor the

United States can point to anything in the record which

substantiates the position that the Tribe as a whole, or even

one of its members, or the United States, intended that one or

both sentences of Article XVIII preserves reservation bound-

aries. Indeed, as we have pointed out in our opening Merits

Brief, reading the agreement to accomplish the cession of

lands for sum certain without altering reservation status

would be directly contrary to the common understanding of

the day. Solem, 465 U.S. at 468, relates:

The notion that reservation status of Indian lands

might not be coextensive with tribal ownership was

unfamiliar at the turn of the century.

The United States thus urges an understanding on the part

of the United States and the Tribe which was “unfamiliar” to

both and asserts that this imagined joint understanding was

incorporated, sub silentio, into Article XVIII of the Agree-

ment. The argument is without merit.

While the Tribe and both amici go to great lengths to

discuss canons of construction, they unaccountably have failed

to address the argument that because Article XVIII is itself

internally ambiguous, it cannot overcome the extraordinarily

clear provisions of Articles I and II, which create the “almost

insurmountable presumption” of disestablishment. As stated in

DeCoteau, 420 U.S. at 447, “A canon of construction is not a

license to disregard clear expressions of tribal and congres-

sional intent.” Because a “clear expression of tribal ard con-

gressional intent” to disestablish is created by the use of

“cession and sum cert: ™ language, a canon of construction

does not allow Article XVIII to overcome that expression. See

also Rosebud, 430 U.S. at 597-598.*

Il. CONTRARY TO THE ARGUMENTS MADE BY

THE TRIBE AND THE UNITED STATES, OTHER

PROVISIONS OF THE 1894 AGREEMENT SUP-

PORT DISESTABLISHMENT.

A. The Liquor Provision Strongly Indicates Dises-

tablishment.

The United States admits that Rosebud, 430 U.S. at

613-14, found that a liquor prohibition in a surplus land act

“indicated diminishment of the reservation.” USB 17. Addi-

tional Yankton legislative history not present in Rosebud

strengthens the argument for disestablishment here. In partic-

ular, the statement of the Acting Commissioner of Indian

Affairs to Congress identifies the legal justification for the

article as “the decision of the Supreme Court in United States

v. Forty-three Gallons of Whiskey, (93 U.S., 188). ...” S.

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

“Negotiations”) at 6-7, JA 121. United States v. Forty-three

Gallons of Whiskey, 93 U.S. 188, 195 (1876) determined that

Congress could prohibit the introduction of liquor outside of a

reservation. Citation of this case (one of only two case cita-

tions discovered in the “Negotiation” document) provides

weighty evidence of the perception that reservation status

would be lost through the agreement.®

% We also note that neither the Tribe nor the United States has

responded to the point that if the canon of construction does apply, it

should operate in favor of disestablishment because, in 1894, Congress

would have perceived that disestablishment would “benefit” the Indians.

See generally Prucha, Il The Great Father 631 (1984); Cohen, Handbook

of Federal Indian Law 78 (1942).

In light, inter alia, of the legislative history made in this case, the

“Indian country” argument of the United States based, inter alia, on events

in 1913 and 1948, see USB 18 & n.12, should be rejected for the 1894

Congress clearly appreciated that it was eliminating the reservation status

of Yankton as demonstrated above.

9

The United States also argues that the Yankton liquor

provision lacks force because it treats, in different language,

the ceded lands and the lands retained in Indian ownership.

The different treatment was merited, of course, because the

lands were intended to have a truly different status resulting

from the 1894 Act.

Both the United States (USB 20) and the Tribe (TB 34)

also rely on a statement within the Commissioner's Report

referring to intoxicants within the “limits of the reservation,”

see JA 154-55, as evidence of continuing reservation status.

The 1894 Agreement itself did not, however, simply refer to a

“reservation” in the liquor article but added the term “as

described in the treaty . . . dated April 19th, 1858... .” App.

120 (emphasis added). Furthermore, the enforcement provi-

sion of the 1894 Act which adopted the agreement referred to

“lands included in the Yankton Sioux Indian Reservation as

created by the treaty of April nineteenth, eighteen hundred

and fifty-eight. .. . ” 28 Stat. 286 (1894). App. 124 (emphasis

added). Thus, each document refers back to the /858 bound-

aries, a reference which would be superfluous if the 1858

reservation were understood to remain in existence.

B. The Provision of the Act Reserving Sections 16

and 36 for Schools Demonstrates Disestablish-

ment.

The 1894 Act reserves sections 16 and 36 of each con-

gressional township “for common-school purposes.” App.

123. Rosebud, 430 U.S. at 599-602, noted substantially simi-

lar language in the act at issue and also quoted language of

the South Dakota Enabling Act which indicated that school

land grants could not be effective until the reservation status

of the affected counties had been “ ‘extinguished and such

lands . . . restored to . . . the public domain.’ ” See also

DeCoteau, 420 U.S. at 442 (similar provision at Sisseton.)

The United States now urges this Court to distinguish

Rosebud because the Yankton Act “simply ‘reserve[s]’ the

sixteenth and thirty-sixth sections from settlement without

taking the further step of granting them to the State, as

10

contemplated by the enabling act when a reservation is extin-

guished.” USB 17. This is a distinction without a difference,

however, for 8,000 acres of school land were, in fact, con-

veyed by the United States to South Dakota in 1895. See

Yankton Sioux Tribe v. United States, No. 332-D at 67 (Ct. Cl.

Trial Div. Oct. 18, 1979). (Unreported decision lodged with

Clerk.) See also Merits Amicus Brief of Dante, et al. 4a-6a.

Ill. THE NEGOTIATIONS BETWEEN THE TRIBE AND

THE UNITED STATES AND THE EXECUTIVE PROC-

LAMATION DEMONSTRATE DISESTABLISHMENT.

A. The Negotiations Between the Tribe and the United

States Indicate a Recognition of Disestablishment.

The record of negotiations between the Yankton Tribe and

United States shows that both believed that the 1894 Agree-

ment being negotiated was equivalent to the 1858 Treaty of the

Yanktons (which disestablished a large part of their reserva-

tion) and the agreement just negotiated by the United States

with the Sisseton Indians (which disestablished the Lake Tra-

verse Reservation). See Negotiations at 54, 56, 58, 59, 68, 71;

JA 225, 226, 231, 236, 239, 270, 278-79. The inescapable

conclusion is that the United States and the Yankton Tribe

correctly perceived that the 1894 Yankton Agreement would

also disestablish the reservation. See also Merits Amicus Brief

of Lewis County at 8.

The Tribe and the United States essentially ignore this

strong indicator of intent and center on the lack of comments in

the negotiation record to the effect that the cession of land

would “leave your reservation a compact, and almost square

tract... . ” USB 21; TB 38. Such comments are not found in

the Yankton negotiating record because the entire reservation

was disestablished, as was the Sisseton Reservation. See

DeCoteau.'°

10 The United States argues that disestablishment was shown in

DeCoteau by a comment from a tribal spokesman who stated that the

reservation “was given us as a permanent home, but now we have decided

Both the United States and the Tribe focus on a comment

of Reverend Williamson, whom, we are told, “found” that the

agreement would not “ ‘in any way interfere with the treaty of

1858.’ " USB 23; see also TB 11. Both should concede that

Williamson's statement was incorrect and that, by the 1894

Agreement, the Tribe gave up the “quiet and peaceable posses-

sion” of a sizeable part of the tract of “four hundred thousand

acres,” guaranteed by the 1858 Treaty. App. 102. And both

should concede that the Tribe lost the 1858 Treaty right to

exclude “white persons” from the reservation by the 1894

Agreement. App. 108. Finally, Reverend Williamson presuma-

bly shared in the common turn-of-the-century understanding

that reservation status was lost when tribal ownership was lost,

see Solem, 465 U.S. at 468, and his statement should be read to

include that perception.

B. The Presidential Proclamation Indicates Disestab-

lishment.

Rosebud, 430 U.S. at 602-603 establishes that a Presiden-

tial Proclamation utilizing cession language constituted an

“unambiguous contemporaneous statement” of disestablish-

ment. The Yankton Proclamation likewise contains cession

language, Exh. 602, JA 453. The United States, without citing

Rosebud, apparently attempts to distinguish it by asserting that

the Yankton Presidential Proclamation refers to a “Schedule of

lands within the Yankton Reservation. .. . ” See USB 23. See

also Brief of Amici Curiae Standing Rock Sioux Tribe, et al. at

18. However, the Rosebud Proclamation also, at least twice,

referred to “Indians of the Rosebud Reservation.” See Rosebud,

430 U.S. at 602. Furthermore, the Executive Proclamation in

the case of the Lake Traverse Reservation, where disestablish-

ment was found, referred to a “Schedule of lands within the

Lake Traverse Reservation. . . . ” See 27 Stat. 1017, 1018 (Apr.

to sell.” USB 21 (emphasis added). Despite the argument of the United

States to the contrary (USB 21-22), a similar analysis should be made of

Statements in the Yankton record regarding the “sale” of lands. See

Negotiations at 81, JA 309.

Se NT a

12

11, 1892). See generally DeCoteau, 420 U.S. at 442.'' The

attempt to distinguish the Proclamations is without merit. See

also Hagen, 510 U.S. at 419-20 (importance of Presidential

Proclamation).

IV. THE JURISDICTIONAL HISTORY OF THE AREA

FOLLOWING THE 1894 ACT STRONGLY SUP-

PORTS DISESTABLISHMENT.

&

A. The Parties Do Not Dispute the State’s Exclusive

Exercise of Jurisdiction in the Area.

This Court's holdings establish that a long history of

undisputed state jurisdiction strongly supports de jure and de

facto disestablishment.'? Such a history is present here. See

Solem, 465 U.S. at 471-72; see also Hagen, 510 U.S. at

420-21; Rosebud, 430 U.S. at 603-604. This Court has also

stressed the importance of the assumption, by the State, of

“unquestioned actual assumption of . . . jurisdiction over the

unallotted lands” in question. Rosebud, 430 U.S. at 603.

However, as neither the United States nor the Tribe disputes,

(1) the “ ‘United States has not attempted to exercise criminal

jurisdiction in the area,’ ” SDB 37 (quoting State v. Greger,

559 N.W.2d 854, 866 (S.D. 1997) (App. 154). (2) the “Tribe

has not exercised civil or criminal jurisdiction on nontrust

lands of the area for the last century,” SDB 39, and, (3)

All criminal offenses on nontrust land (91% of the

region) are handled in state courts. Since 1895, the

year the reservation was opened, South Dakota

'! The failure of the Tribe and the United States to seriously dispute

the thesis that the Yankton and Sisseton Agreements are “functional twins”

with at least seventeen points of identity amounts to a virtual concession of

the accuracy of this assessment. See Merits Amicus Brief of Dante, et al. at

15-19.

'2 The Federal allegations with regard to the State's “concession” on

the force of subsequent events are without merit. See USB 7, 20; Pet. Cert.

at 23.

13

courts have consistently maintained, without inter-

vention by federal or tribal authorities, civil and

criminal jurisdiction within the former reservation

boundaries.

SDB 35 (quoting State v. Greger, App. 154-55).

The United States expresses its primary interest as main-

taining law enforcement within the area. USB 1. This implic-

itly affirms the argument of the State that if the “federal

government” had such jurisdiction for the past century it

“could quite naturally be expected to have exercised it.” SDB

34. Similarly, the Tribe should be expected to have exercised

its jurisdiction, and the State’s consistent exercise of jurisdic-

tion should have been actively challenged by the federal

government or the Tribe. (In fact, the Tribe identifies only

one internal BIA letter relat’ug to indemnity school lands

which it sees as resistance, but the letter is marginally rele-

vant at best. See TB 44.) The state’s century long exclusive

exercise of jurisdiction has thus created “justifiable expecta-

tions” for those resident in the area that such a system will

continue. See, Rosebud, 430 U.S. at 604-605.'3

B. Contrary to the Argument of the United States,

the Perrin Case Demonstrates Disestablishment.

The United States brushes aside the consistent jurisdic-

tional history (USB 28) and relies on two of its own actions to

argue that the evidence is too “ ‘rife with contradictions and

inconsistency’ to demonstrate a congressional intent to

diminish. First, the United States asserts that its continuing

inconsistent treatment was demonstrated by its litigation posi-

tion in Perrin v. United States, 232 U.S. 478 (1914). The

United States argues that it took the position there that the

“reservation had not been diminished” and implies that the

'3 Evidence as to the exclusive nature of state jurisdiction is even

stronger in this case than in the most recent case in which it was relied

upon as a factor in finding disestablishment. See Hagen, 510 U.S. at 441

(Blackmun, J., dissenting); see also, Rosebud, 430 U.S. at 616 n.1-2

(Marshall, J., dissenting).

14

significance of the Perrin case lies in this position. USB 24.

We agree that Perrin is significant but disagree that its impor-

tance flows from the federal position. Rather, it flows from

the conflict of the federal position and that of the defendant

and, more importantly, the resolution of the question by this

Court.

To begin, we note that the United States is wrong when it

asserts that the defendant took the same position that it took.

USB 24-25. In fact, Mr. Perrin admitted that he had sold

alcohol at his drugstore in Dante, as the indictments had

charged, but explicitly asserted in his Assignments of Errors

that the drugstore sales were “not upon the said Indian reserva-

tion.” Transcript of Record at 28, 29, Perrin v. United States,

No. 707 (1913). Similarly, in the Perrin Brief for Plaintiff in

Error at 2, Mr. Perrin asserted that the crime “attempted to be

alleged” did not pertain to an act “upon any existing Indian

reservation.” Indeed, the United States explicitly recognized

that the reservation status of the involved land was at issue

because of Mr. Perrin’s arguments, and it stated in its Brief for

the United States in Perrin at 2 that Mr. Perrin had earlier

challenged the jurisdiction of the court on these

grounds: (1) The sale was on his property and not on

a reservation.

But the critical nature of Perrin v. United States is not, as the

United States implies, the position that the United States took in

that litigation. See USB 24. Instead, it is the action of this Court.

At a minimum, as the United States conceded in the court below,

Perrin “assumed diminishment.” Brief for the United States as

Amicus Curiae In Support of Plaintiffs-Appellants at 19 n.10,

Yankton Sioux Tribe v. Southern Missouri Waste Management

District, 99 F.3d 1439 (8th Cir. 1996) (No. 96-2647). Furthermore,

we would submit that Perrin found disestablishment by referring to

the “ceded lands formerly included in the Yankton Sioux Indian

Reservation.” Perrin, 232 U.S. at 480. The Perrin court also

referred to the “original reservation” as embracing 400,000 acres

and contrasted that situation with the existing “allotments” of

100,000 acres. /d. at 486. Moreover, the Perrin opinion was

unnecessary if there was no finding of disestablishment for liquor

15

was already illegal within reservations. See Perrin, 232 U.S. at 484

(quoting United States v. Forty-three Gallons of Whiskey, 93 U.S.

at 197).'4

C. The 1941 Opinion of the Acting Solicitor Has

Been Shown to Be Based Upon Faulty Premises of

Law and to Be Contradicted by the Author and

Subsequent BIA Announcements.

The second main fact which the United States asserts

demonstrates a record “rife with contradictions” (USB 24) is

a 1941 letter of the Acting Solicitor. We have pointed out that

the letter is based upon faulty premises of law. See SDB 43;

USB 25. We note further that the United States is unable to

cite any instance that the erroneous letter was relied upon.

This anomalous, legally wrong, letter does not create a record

“rife with contradictions.”'5

Finally, the United States informs us that: “The official

position of the Department of the Interior remains that the

Reservation was not diminished.” USB 25 n.17 (emphasis

added). In fact, the Commissioner of Indian Affairs in 1894

recognized that the Yankton lands would be “restored to the

public domain,” see Exh. 11, JA 450. Department of the

Interior officials have referred to the “former” Yankton reser-

vation, see, e.g., Exh. 664, JA 474 (1910); Exh. 665, JA 480

'* Perrin relied upon Dick v. United States, 208 U.S. 340 (1908) as a

case “in point.” Perrin, 232 U.S. at 485. Dick, 208 U.S. at 352 found that

ceded Nez Perce lands were not “Indian country” and that the State

therefore had complete jurisdiction over Indians in the ceded area, except

for liquor purposes, based upon a provision similar to that at issue in

Perrin. See also Rosebud, 430 U.S. at 613 n.47 (discussing Dick and

Perrin.) See generally Merits Brief of Lewis County.

'S The United States apparently denies that the Acting Solicitor

contradicted his own opinion a year later. USB 25 n.17. Acceptance of this

meant to characterize reservation areas as “ ‘buffer’ areas” in 1942. See

Cohen, Handbook of Federal Indian Law 353 (1942). See generally SDB

43, Merits Brief of Southern Missouri Waste Management District 42-50.

16

(1921) and, along with other federal agencies, treated the

reservation as disestablished. See, SDB 37-42. In 1932 and

1962, Interior approved tribal constitutions which did not

claim reservation status. Exh. 651, JA 483-88; Exh. 652, JA

493-513. In 1969 an Associate Solicitor’s opinion found that

the 1894 Act “diminish{ed] the area over which the [Yankton]

tribe might exercise its authority.” Exh. 628, JA 525. Finally,

as recently as 1994, the EPA, after consultation with Interior,

stated that the “Yankton Sioux Reservation was disestablished

by the Act of 1894.” See 59 Fed. Reg. 16649 (Apr. 7, 1994),

Exh. 662, JA 532-33. The record in this case suggests, as did

the record in South Dakota v. Bourland, 508 U.S. 679, 696-97

(1993), that the United States has not fairly represented the

position of an agency of the federal government.

D. The Tribe’s Other Arguments as to Reservation

Status Are Without Merit.

The Tribe, in its “Summary of the Argument,” asserts

that it “has always maintained a continuum of tribal gover-

nance over the Reservation area.” TB 18. It is notabie that

nowhere in its fifty-page brief does the Tribe attempt to

substantiate this claim and, indeed, it cannot be substantiated.

See generally App. 39; DCO App. 87-88; SDB 46-47.

The Tribe also contends that weight should be given to

the assertion that its casino is a substantial moneymaker and

has become a significant employer in the area. See, e.g., TB

18, 46. The creation and expansion of the casino occurred,

however, in the absence of recognized reservation status, and

there is no allegation that the viability of the casino is tied to

reservation status.

The tribe also makes an argument as to the use of the

term “reservation” in various records. The Tribe fails to note

that its own expert admitted that it cannot be known whether a

federal officer was using the term to denote a legal reserva-

tion or simply a place where Indians live, without appropriate

Se

17

“context.” T 96-97, 103-104, JA 621-23.'* Similarly, a BIA

Realty Officer testified that twenty years after this Court

decided DeCoteau, which found that the Lake Traverse Reser-

vau.on had been disestablished, the BIA is still using certain

maps showing Lake Traverse Reservation boundaries; the

Realty Officer also admitted that one cannot tell from simply

looking at a BIA map whether its purpose is to show actual

reservation boundaries. T 367.

The Tribe argues, in addition, that the retention of lands

by the United States for the Indian agency and for schools

indicates reservation status would be retained, implying that

no such lands were retained at Sisseton. TB 30. See also USB

15-16. The Tribe is simply wrong in distinguishing the two

cases. In both, lands were ceded by the Tribe to the United

States for the agency and for schools. See DeCoteau, 420 U.S.

at 435 n.16 quoting S. Exec. Doc. No. 66, Sist Cong., Ist

sess. | (1890): (“ ‘the Government should own the lands on

which the agency and school buildings are located.’ ”); 420

U.S. at 438 n.19: (“ ‘Indian title’ ” to lands occupied by the

““agency and missionary societies’” will be “ ‘extin-

guished.’ "); /d. at 442-43: (“ ‘Federal Indian agents have

remained active in the area’™). Similar lands were made

available to the United States at Rosebud. See 33 Stat. 254,

257 (1904). See also Rosebud, 430 U.S. at 621-622 (Marshall,

J. dissenting). In addition, the dissent of Justice Blackmun in

Hagen, 510 U.S. at 432, quotes a statement in the Utah

negotiations to the effect that “ ‘your Agency will be contin-

ued just the same as now.’ ™ In all three cases disestablish-

ment was found. Contrast Solem, 465 U.S. at 475 n.18. In any

'© The Tribe's expert, although testifying that the number of

references to a “former” Yankton reservation was “relatively small”

admitted that “I couldn't say” what percentage of times the term appeared

in the documents. T 265. The expert's knowledge of the documents was not

as complete as the Tribe would imply; the expert was forced to admit that

Exh. 665, JA 480, which used the term “former Yankton-Sioux Indian

Reservation,” was “new to me today.” T 268.

event, the retention of small amounts of land by the govern-

ment is no more than would be expected and says little about

the retention of the boundaries of the reservation.

Finally, we note the Tribe's insistence that recognition of

reservation boundaries is demanded by the “drastic sea-

change in federal policy in the 1930s.” TB 42. The Tribe does

not tell us how the 1894 Agreement can be altered by this

“sea-change.” Moreover, neither the Tribe nor the United

States has acted as if the 1930s’ “sea-change” affected this

Tribe. Thus, the tribal constitution in 1932 does not claim

reservation status or assert jurisdiction over any land base,

Exh. 651, JA 483-88, and members of the tribal council could

be from any part of Charles Mix County, although the '58

reservation boundary includes only one-half of the county.

Even the constitution adopted in 1962, and effective today,

fails to claim reservation boundaries and status: Article VIL,

Section | states:

The territory under which this Constitution shall

exist shall extend to all original Tribal lands now

owned by the Tribe under the Treaty of 1858.

Exh. 652, JA 499 (emphasis added). Both constitutions were

approved by the BIA.

We agree, of course, that the reversal of federal policy

produced constitutions for numerous tribes which did claim

jurisdiction over all territory within the original confines of

certain reservations. These claims were frequently rejected by

this Court. See, e.g., Hagen, 510 U.S. at 441 (Blackmun, J..

dissenting); Rosebud, 430 U.S. at 616 n.1 (Marshall, J., dis-

senting); DeCoteau, 420 U.S. at 443). That the post “sea-

change” constitutions adopted by this Tribe and approved by

the BIA do not claim reservation boundaries makes the

Tribe's claim to boundaries here all the more tenuous.

E. Land and Population Developments Strongly Sup-

port Disestablishment.

The two critical demographic developments — landowner-

ship and population — each confirm disestablishment. See

Hagen, 510 U.S. at 421-22; Solem, 465 U.S. at 471-72;

19

Rosebud, 430 U.S. at 604-05; see also DeCoteau, 420 US. at

428. The United States and the Tribe ignore the landowner-

ship factor and attempt to cloud the population statistics.

First, it is of critical importance that only nine percent of

the land within the purported reservation is today in trust

status. See T 645, JA 685; App. 42 n.25. See also BIA Map at

App. 159.'? Both the United States and the Tribe simply

ignore this fact, but it is critical because, prior to the deci-

sions below, trust status defined the maximum reach of tribal

and federal authority over non-Indians who could not partici-

pate in tribal government. Thus, before 1995, the State exer-

cised unrestricted civil and criminal jurisdiction, and had for

a century, over all persons on the non-Indian lands which now

constitute more than 90 percent of the purported reservation;

all persons, Indian and non-Indian, shared in the governance

of the area.

Under the regime sought to be imposed, non-Indians

engaging in activities anywhere within the newly recognized

“reservation” will be subject to the maze of civil and criminal

jurisdiction characteristic of reservations generally but will

not be able to participate in tribal governance of the area.

Second, 68 percent of the persons resident in the pur-

ported reservation are non-Indians, according to the United

States Bureau of the Census. Exh. 614, JA 527-529. Thus, the

decision sought to be affirmed would substitute a new minor-

ity government of less than one-third based on tribal member-

ship (and thus, to a degree, race) for the present government

of all persons.'*

' United States v. Stands, 10S F.3d 1565-71, 1572 (8th Cir. 1997)

indicates that not all trust land is “Indian country”. Thus, the nine percent

figure is the maximum amount of “Indian country” in the area.

figures” showing 44 percent tribal residents); TB 16 (citing Hoover at JA

545 for the proposition that 3,400 Indians lived on the reservation in 1993).

Professor Hoover's numbers are surely unreliable. The record reflects that

20

In sum, the record demonstrates that less than ten percent

of the land is trust land and less than one-third of the persons

within the now disputed area are Indians. This area thus falls

directly into the category of those “predominantly [68%]

populated by non-Indians with only a few [9%] surviving

pockets of Indian allotments. .. . ” Hagen, 510 U.S. at 420.

CONCLUSION

For the foregoing reasons, the State of South Dakota

respectfully requests that the judgment of the Court of Appeals

be reversed and that this Court find that the area has lost

“reservation status” under 18 U.S.C. § 1151(a), and that the

only “Indian country” remaining in the area is found in the

unextinguished allotments, 18 U.S.C. § 115Il(c), and “depen-

dent Indian communities” pursuant to 18 U.S.C. § 1151(b).'®

Respectfully submitted,

Mark W. Barnetr

Attorney General

Counsel of Record

Joun Patrick GuHIN

Deputy Attorney General

500 East Capitol Avenue

Pierre, SD 57501-5070

Telephone: (605) 773-3215

Hoover obtained his statistics simply by calling the tribal office. T

240-243. See JA 641-643. The Tribal Chairman, in turn, admitted that the

tribal resident population statistics were not based upon any actual count,

but merely took the total membership of the Tribe and divided it in half. T

313-15, JA 652-53.

'9 Neither the Tribe nor the United States now disputes that, if this

case is reversed, “Indian country” status is limited to the lands listed above.

The State, of course, will continue its special treatment of these lands in

accordance with federal law. See also, n.2, supra. See generally Merits

Amicus Brief of Charles Mix County at 30 n.11; Brief of Duchesne

County, et al., On Writ of Certiorari; Petition for Writ of Certiorari

Duchesne County v. Ute Indian Tribe, No. 97-570 (Sept. 29, 1997).

SE