Supplemental Brief — South Dakota v. Yankton Sioux Tribe

Supreme Cost, US

se eee

Noy 21 1997

No. 96-1581

——$———————————— @LERK

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1997

STATE OF SOUTH DAKOTA,

Petitioner,

Vv.

YANKTON Sioux TRIBE, a federally recognized

tribe of Indians, and its individual members;

DARRELL E. Drapeau, individually, a member

of the Yankton Sioux Tribe,

-_ Respondents,

SOUTHERN MissouRI WASTE MANAGEMENT DISTRICT,

a nonprofit corporation,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

SUPPLEMENTAL BRIEF OF RESPONDENT,

SOUTHERN MISSOURI WASTE

MANAGEMENT DISTRICT,

IN SUPPORT OF PETITIONER,

STATE OF SOUTH DAKOTA

KENNETH W. COTTON

WirF & COTTON

P.O. Box 370

Wagner, South Dakota 57380

(605) 384-5471

Counsel for Respondent

WILSON - Epas Printine Co., Inc. - 769-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES 20.0.0.22...20..ccccccscssssssessseeeeseee

SI fia alai is titeithcinsenichies andibialiernatniascestaneeacmece

I. THE PREVIOUS SUBMISSIONS OF THE

Mone aan es ithe . TAs %s a,

“et < we

toll ao lh at Sas

sascha tint DAA ar * kt

UNITED STATES REGARDING THE DIS-

ESTABLISHMENT EFFECT OF CESSION

AGREEMENTS ARE CLEARLY CORRECT...

B. Excerpts Containing The Complete Oral Ar-

guments Of The United States Confirm This

i et A ae ri ee a PF TERS TR A OR

. NOTHING IN THE YANKTON DOCUMENTS

SUBSTANTIATES THAT ARTICLE XVIII

WAS INTENDED TO ALTER THE FUNDA-

MENTAL ATTRIBUTES OF THE YANKTON

EE detatehinreiertirinenetietienctinnespaliiiabiiaiiiontitadoeeionte

A. The United States Has Not Addressed The

Decision Of The State Supreme Court In

Greger Because The Arguments Set Forth

In That Opinion Cannot Be Readily Refuted..

B. Article XVIII Does Not Figure Prominently

1. The “Form Agreement” the United States

has lodged with the Clerk undermines the

The Transcript of the Yankton Negotia-

tions Confirms that Article XVIII was

Understood to Address Annuities and

. The Formal Report of the Yankton Com-

missioners does not Refer to Article

XVIII or Mention any Retained Reserva-

ii

TABLE OF CONTENTS—Continued

4. The Commissioner of Indian Affairs

Simply Listed the Terms of Article

XVIII (And Later Concluded in His An-

nual Report that the Agreement would

Restore the land to the “Public Do-

IIIT Wicstcinvichnicnstiebdincencaptecndinbinghtinnertiqmemeeenes

Ill. THE ARTICLE XVIII ARGUMENT OF THE

UNITED STATES DOES NOT FOLLOW THE

REASONING OF ROSEBUD AND IT SHOULD

BE REJECTED 2n0.o..-..ccc.cceceeeccmececcnsseeeeeesnenenes

IV. THERE IS NOTHING NEW IN THIS OR ANY

SAVINGS CLAUSE ARGUMENT ...................

CORSO ATION ances sn onesosenvsscosnccmrcccssnecscvscrcvencvcvensececnssoes

APPENDIX:

Transcript of Oral Argument at 13-21, Mattz v.

Arnett, 412 U.S. 481 (1973) (No. 71-1182) ...........

Transcript of Oral Argument at 9-24, Erickson v.

Feather decided with DeCoteau v. District County

Court, 420 U.S. 425 (1975) (73-1148) .~..............

Transcript of Oral Argument at 18-30, Rosebud

Sioux Tribe v. Kneip, 480 U.S. 584 (1977) (No.

Transcript of Oral Argument at 18-27, Hagen v.

Utah, 510 U.S. 399 (1994) (No. 92-6281) ...............

Page

10

la

Ta

iii

TABLE OF AUTHORITIES

CASES CITED: Page

City of New Town v. United States, 454 F.2d 121

REESE SSE EET OO ee 10

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

ee ee = ke ee ee ee passim

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

Oregon Dep't of Fish and Wildlife v. Klamath In-

dian Tribe, 473 U.S. 758 (1985) 0.0000 10

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

ESAT SAE IE Se a ee 5, 9, 10

South Dakota v. Greger, 559 N.W.2d 854 (S.D.

ae eek Aalders aa Seana 4,5

Yankton Sioux Tribe v. Southern Missouri Waste

Management, 99 F.3d 1489 (8th Cir. 1996),

cert. granted sub nom. South Dakota v. Yankton

Sioux Tribe, 117 S.Ct. 2480 (1997) (No. 96-

I ...B, 4, 10

OTHER AUTHORITIES:

26 Cong. Rec., 58d Cong., 2d Sess. (1894)... 6

S. Ex. Doc. No. 27, 58d Cong., 2d Sess. (1894)... 7

Robert L. Stern, et al., Supreme Court Practice,

SET AIN soe a ne 4

Letter from Commissioner J. T. Morgan of the De-

partment of Interior to Commissioners (July 27,

ENR a EE ei i 5

Annual Report of the Commissioner of Indian Af.

I i al S

Report of the Socretary of the Interior, H. Exec.

Doc. Vol. 14, 53d Cong., 3d Sess. (1894-95) .. x

Transcript of Oral Argument, Hagen v. Utah, 510

U.S. 399 (1994) (No. 92-6281) —..... 1,2

Brief for Respondents Yankton Sioux Tribe and

Darrell E. Drapeau, South Dakota v. Yankton

Sioux Tribe, (August 7, 1997) (No. 96-1581)... 5

Brief for the United States as Amicus Curiae Sup-

porting Respondents, South Dakota v. Yankton

Sioux Tribe, (September 24, 1997) (No. 96-

ES EEE AES SE NE ae 1, 5, 10

iv

TABLE OF AUTHORITIES—Continued

Appendix to Brief of Respondent Southern Mis-

souri Waste Management District, South Dakota

v. Yankton Sioux Tribe, (Apr. 28, 1997) (No.

) ) rr ee a Sa

Appendix to Brief of Charles Mix Coty, South

Dakota, as Amicus Curiae in Support of Peti-

tioner State of South Dakota, South Dakota v.

Yankton Sioux Tribe, (May 7, 1997) (No. 96-

| ET EI SF SN Re

Page

SUPPLEMENTAL BRIEF OF RESPONDENT,

SOUTHERN MISSOURI WASTE

MANAGEMENT DISTRICT,

IN SUPPORT OF PETITIONER,

STATE OF SOUTH DAKOTA

This Supplemental Brief of Respondent Southern Mis-

souri Waste Management District, in Support of Petitioner

State of South Dakota, is submitted in response to the

Amicus Curiae Brief for the United States, pursuant to

Rule 25(5).

ARGUMENT

I. THE PREVIOUS SUBMISSIONS OF THE UNITED

STATES REGARDING THE DISESTABLISHMENT

EFFECT OF CESSION AGREEMENTS ARE

CLEARLY CORRECT.

MR. MANN: Well, the lan in DeCoteau

said that the Indians cede, sell, relinquish and convey

to the United States all their claim, right, title, and

interest in the land in question, and the statute in

Rosebud stated that the Indians cede, surrender,

grant, and convey to the United States all their claim,

right, title, and interest in and to all the land in

question.

It would be rather difficult, I think, to construe

that language as language that allowed the Indians

to retain sovereignty over the land.

QUESTION: I think you're probably right. . . .

Tr. of Oral Argument at 25, Hagen, (No. 92-6281), Dist.

Supp. App. at 31a-32a (emphasis added).

A. Introduction.

The United States, as amicus curiae, recently submitted

a Brief in this case because of a “strong interest in pro-

tecting the integrity of reservation boundaries.” Br. for

the United States Supp’g Respt’s at 1, South Dakota v.

Yankton Sioux Tribe, (No. 96-1581). The arguments of

the United States generally reflect that position.

2

other, often conflicting cession arguments, as well as other

similar arguments to this Court in similar cases. In those

instances, this Court has, more often than not, squarely

rejected the overall position of the United States—and for

good reason. In the process, the cession concessions of

the United States have never been questioned. The pur-

pose of this Supplemental Brief is to place the new argu-

ments of the United States in proper context and sum-

marize the reasons why this Court should, once again,

reaffirm its own clearly correct cession jurisprudence.

B. Excerpts Containing The Complete Oral Arguments

Of The United States Confirm This Posivon.

As an overview, we have appended, for the conv-nience

of the Court, excerpts containing the complete arguments

of the United States from each of the transcripts of the

oral arguments, such as that highlighted above. Tr. of

Oral Argument at 13-21, Mattz, (No. 71-1182), Dist.

Supp. App. at la-6a, Tr. of Oral Argument at 9-24,

Erickson v. Feather decided with DeCoteau, (No. 73-

1148), Dist. Supp. App. at 7a-17a, Tr. of Oral Argument

at 18-30, Rosebud Sioux Tribe, (No. 75-562), Dist. Supp.

App. at 18a-26a, Tr. of Oral Argument at 18-27, Hagen,

(No. 92-6281), Dist. Supp. App. at 27a-33a.

In context, the transcripts shed a different light on the

present views of the United States. For example, since the

decision of this Court in DeCoteau, the United States

candidly and repeatedly has acknowledged that Congress

routinely intended cession statutes such as this to dis-

establish reservation areas. Dist. Supp. App. 18a-33a.

The United States has never attempted to circumvent this

type of cession since DeCoteau, openly acknowledging, as

in Hagen, that it would be “rather difficult” to support

any other construction. Jd. at 32a. In this case, the

United States ignored that analysis and instead

the “narrower” position ultimately adopted by the Court

below:

The key question in in the 1894 statute and

aap cae Cen tae ee Oe

3

tribe’s governmental authority be transferred with the

land sale. Amicus United States argues that the 1858

treaty gave the tribe goverumental authority within

the treaty boundaries and that Article XVIII requires

that the agreement be read to preserve that right.

Althou cession language in Articles I and II

could viewed as describing a transfer of tribal

governmental authority as well as land, thereby

changing the 1858 treaty boundaries, the narrower

reading is that the 1894 act simply authorized the

conveyance of real property . . . . leads to the con-

clusion that Congress intended by its 1894 act that

the Yankton Sioux sell their surplus land to the

government, but not their governmental authority

over it.

Yankton Sioux Tribe v. Southern Missouri Waste Memt.

Dist., 99 F.3d 1439, 1448, 1457 (8th Cir. 1996), Pet.

App. at 19-20, 43-44 (emphasis added).

Nothing of substance could be cited by either the United

States or the panel majority to support this anomalous

and otherwise “rather difficult” construction. Dist. Supp.

App. at 32a. Moreover, the District would submit that

the prior views of the United States summarized above

preclude this “narrower” view—at least in the absence of

some affirmative evidence of congressional intent to the

contrary. In this respect, generic arguments loosely tied

to Article XVIII will not suffice. Article XVIII was not

intended to alter the fundamental attributes of the Yankton

cession—and not a single word in any of the Yankton

documentation says otherwise.

Il. NOTHING IN THE YANKTON DOCUMENTS SUB-

STANTIATES THAT ARTICLE XVIII WAS IN-

TENDED TO ALTER THE FUNDAMENTAL AT-

TRIBUTES OF THE YANKTON CESSION.

A. The United States Has Not Addressed The Decision

Of The State Supreme Court In Greger Because

The Arguments Set Forth In That Opinion Cannot

Be Readily Refuted.

The Supreme Court of the State of South Dakota dem-

onstrated that point in South Dakota vy. Greger, 559

4

N.W.2d 854 (S.D. 1997) and the manner in which ~

cuit Court of Appeals in this case, Yankton Sioux Tribe,

99 F.3d 1439, and the decision of the Supreme Court of

the State of South Dakota in Greger. Robert L. Stern,

et al., Supreme Court Practice, Sec. 4.9 at 181 (7th ed.

1993). We further understand that this Court is the final

arbitrator of matters of federal law decided by either

federal or state court—which brings us to the omission

of the United States that merits special attention. That

is, the manner in which the brief for the United States

completely ignores the decision of the Supreme Court of

the State of South Dakota in Greger. In this respect,

Greger is not cited, mentioned or discussed on any page

in any comm * the Brief for the United States.

7

-

5

fashion an argument that depicts continued federal recog-

nition of the Yankton reservation. The Greger Court

convincingly dispels that notion by simply highlighting

an important and uncontested jurisdictional fact. Greger,

559 N.W.2d at 859-861, 866, Pet. App. 154-155. For a

century, the State of South Dakota, and not the federal

government, has been the party exercising jurisdiction

over the contested area, which certainly would not have

been the case if the area had remained within the limits of

an Indian reservation. /d. In this light, the Article

XVIII argument, supported by isolated references by

Congress to a “Yankton reservation,” decades apart, and

other unrelated sources that the United States now re-

counts, pales in comparison to this uncontroverted asser-

tion of state jurisdiction. Br. for the United States Supp’g

Resp’ts at 24-26, South Dakota v. Yankton Sioux Tribe,

(No. 96-1581).

In other instances this Court has given great weight to

a history of reliance on State jurisdiction. Rosebud, 430

U.S. at 605; Hagen, 510 U.S. at 421. The United States

cannot avoid this factor by simply refusing to address the

opinion of the Supreme Court of the State of South —

Dakota.’

B. Article XVIII Does Not Figure Prominently In The

Yankton Documentation.

1. The “Form Agreement” the United States has

lodged with the Clerk undermines the signifi-

eance of Article XVIIL

The instructions of the Commissioner of Indian Affairs

to the Yankton Commissioners are silent with regard to

anything like Article XVIII. See Letter from Comm’r

1 The manner in which the United States summarily disregards

the dissent by Judge Magill in the court of appeals should also be

noted. In the Brief for the United States the dissent is mentioned

only in the “Statement” (in one sentence) and there it is unfairly

characterized as relying on Article I and Article II “alone.” Br. for

the United States Supp’g Resp’ts at 6, South Dakota v. Yankton

Siour Tribe (No. 96-1581).

6

J.T. Morgan of the Dep’t of Interior to Comm'rs (July 27,

1892), reprinted in Br. of Resp’t So. Mo. Waste Mgmt.

Dist. at app. 49a (Apr. 28, 1997) (No. 96-1581). Like-

wise, the “form agreement” enclosed with the instructions

(and now “lodged” with the Clerk of this Court by the

United States) contains no such language. See Form

Agreement ibid. The “form agreement” does, however,

contain “cession language” which this Court has subse-

quently described as being “precisely suited” to disestab-

lishment. DeCoteau, 420 U.S. at 445. The members of

Congress obviously did not see the inclusion of Article

XVIII as preserving reservation boundaries or as incon-

sistent with the instructions. Indeed, Congress perceived

that the Commisioners had obtained the “cession” in ac-

cordance with “past policy” and following “in the same

line.”

MR. PICKLER. Certainly these commissioners

have general instructions from the Secretary of the

Interior to do what they do. He lays down the rules

and regulations to guide them, and fixes the general

scope of their duties. . . . That commission was

organized by the Secretary of the Interior and was

sent out with general instructions. . . . These com-

missioners went out in good faith; the Secretary of

the Interior gave them their instructions; they kept

within their instructions; they have made an agree-

ment for these lands; and now Congress ought to

live up to the agreement. .. . [W]e simply procure

these lands in the same way we have always procured

lands from the Indians. We make no departure from

our past policy; we are following in the same line.

26 Cong. Rec. 8265, 8267, 53d Cong., 2d Sess. (1894),

J.A. 405-522.

Nothing in the congressional debate in fact refers to Arti-

cle XVIII, much less does it indicate any intent to retain

reservation boundaries.

7

2. The Transcript of the Yankton Negotiations

Confirms that Article XVIII was Understood

to Address Annuities and not Reservation

Boundaries.

The transcripts that record the Yankton negotiations

are also silent with reference to any reservation boundary

discussion even remotely related to Article XVIII. S. Ex.

Doc. No. 27 at 47-101, 53rd Cong., 2d Sess. (1894),

J.A. at 203-359. There is certainly no discussion that

even arguably supports retained reservation boundaries in

the face of this cession. The United States evidently con-

cedes this fact because no transcript excerpts are set forth

or cited by the United States (or anyone else) in support

of a different conclusion. Annuities, and not reservation

boundaries, were the only subject of discussion. Jd. In

addition, even the possibility of any other understanding

with respect to reservation boundaries is completely under-

mined by repeated references to cessions of the past, in-

cluding the Sisseton-Wahpeton cession construed in De-

Coteau—another critical point the United States never

addresses.

3. The Formal Report of the Yankton Commission-

ers does not Refer to Article XVIII or Mention

any Retained Reservation Boundaries.

When the Yankton Commissioners formally reported

back to the Commissioner of Indian Affairs (as reported

to Congress), the Commissioners stated (under a sub-

heading of “Baseless Claims”) only that:

The Indians, partly through ignorance and partly

through craft, presented to us a long list of claims

and grievances. They claim that they had not re-

ceived their dues under the treaty of 1858; that they

had a claim against the Government for land in Iowa

and many such baseless and imaginary wrongs. We

did not find it difficult to meet these charges to the

satisfaction of most of the Indians. . . .

S. Ex. Doc. No. 27 at 21, 53d Cong., 2d Sess. (1894),

J.A. at 155.

Nothing else about Article XVIII was even mentioned.

4. The Commissioner of Indian Affairs Simply

Listed the Terms of Article XVIII (And Later

Concluded-in His Annual Report that the Agree-

ment would Restore the land to the “Public

Domain”).

In his Report to the Secretary of the Interior, the

Commissioner of Indian Affairs did list Article XVIII in

chronological order and stated without any further com-

ment that:

Article XVIII provides that nothing in the agree-

ment shall be construed to abrogate the treaty of

April 19, 1858, and that the Yankton Indians shall

continue to receive their annuities under said treaty.

Id. at 4, J.A. at 115.

The Commissioner of Indian Affairs’ formal views on

the Yankton agreement were set forth in his Annual

Report. Annual Report of the Comm’r of Indian Affairs

(1894). He concluded that the agreement would restore

the lands to the public domain (as did the Secretary of

the Interior). Jd. at 28, excerpted in Br. of Resp. So. Mo.

Waste Mgmt. Dist. in Supp. of Pet’r at app. 42a; Report

of the Sec’y of the Interior, H. Exec. Doc. Vol. 14, 53d

Cong., 3d Sess. at IX (1894-95), excerpted in Br. of

Resp. So. Mo. Waste Mgmt. Dist. in Supp. of Pet’r at

app. 44a. After the Proclamation and Opening the next

year, the Yankton Reservation was deleted from the offi-

cial cartographic Departmental maps showing Indian

reservations in the United States, which was appended

each year to the Annual Report.

As a result, the contemporary administrative record

really does not support the claim of the United States

that the: “federal government’s conduct with respect to

the Yankton Sioux Reservation, while not entirely con-

sistent, suggests that no diminishment was intended.” Br.

for United States as Amicus Curiae Supp’g Resp’ts at 24,

South Dakota v. Yankton Sioux Tribe (96-1581) (em-

phasis added).

9

Ill. THE ARTICLE XVIII ARGUMENT OF THE

UNITED STATES DOES NOT FOLLOW THE REA-

SONING OF ROSEBUD AND IT SHOULD BE

REJECTED.

In the final analysis, the entire argument of the United

States also ignores the most important part of the “cession”

discussion in Rosebud. Rosebud is instructive and appli-

cable to the Article XVIII argument. In the process of

explaining why it made no difference that the operative

cession language in the 1904 Rosebud Act was technically

misused, the Court in Rosebud concluded that this type

of ambiguity was relatively unimportant insofar as the

meaning of the entire act was concerned:

The use of the word “cession” in the 1904 Act, which

was not consented to by the required extraordinary

majority of the Tribe, does not make the meaning of

the Act ambiguous as between diminution of the

Reservation boundaries on the one hand, and merely

opening up designated lands for settlement by non-

Indians, on the other. The word is technically mis-

used, but the meaning is quite clear. It was intended

to accomplish, in 1904, precisely what it was in-

tended to accomplish in 1901.

Rosebud, 430 U.S. at 597-598 (emphasis added).

Any ambiguity involving Article XVIII, which, of course,

is not even in the operative language of the Yankton

agreement, cannot, following the reasoning of Rosebud,

be determinative of the meaning of the Yankton Act.

The fundamental error of the panel majority was the

failure to recognize this important conceptual distinction,

which the United States failed to make. To paraphrase

Rosebud, the Yankton cession was intended to accomplish

in 1894 precisely what similarly referenced cessions ac-

complished in 1891 (DeCoteau) and in all previous years.

10

IV. THERE IS NOTHING NEW IN THIS OR ANY

SAVINGS CLAUSE ARGUMENT.

The last point that needs to be made is that there is

really nothing new in this savings clause argument or

any savings clause argument. Prior to the decisions of

this Court in DeCoteau and Rosebud, which placed the

issue in a proper historical perspective, similar savings

clause arguments were routinely submitted in support of

a recognition of original reservation boundaries. In fact,

the court of appeals relied on the one case (decided before

DeCoteau and Rosebud) that found such a savings clause

argument to be persuasive. Yankton, 99 F.3d at 1448,

1450, citing City of New Town v. United States, 454 F.2d

121 (8th Cir. 1972), Pet. App. at 20, 24. But see Yank-

ton, 99 F.3d at 1460 n. 31, Pet. App. at 50. However,

subsequent to New Town, this Court decided the two cases

that should have authoritatively put savings clause argu-

ments to rest. In DeCoteau, this Court made the signifi-

cance of the cession process crystal clear. See also Oregon

Dep’t of Fish and Wildlife v. Klamath Indian Tribe, 473

U.S. 753 (1985). And in Rosebud, the savings clause

argument was mentioned only in the dissent. Rosebud,

430 U.S. at 623. See also Oregon, 473 U.S. 753.° The

United States participated in these cases and is surely

aware of the arguments that were advanced and rejected.

In the court of appeals, the precedent of this Court would

have been better served if more attention could have been

directed to the significance of DeCoteau, Rosebud and

Oregon.

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be reversed.

2 The United States essentially ignores the cession analysis in

Oregon, 473 U.S. 753, mentioning the decision only once to note

that it quoted a savings provision. Br. for the United States as

Amicus Curiae Supp’g Resp’ts at 12, South Dakota v. Yankton

Sioux Tribe (No. 96-1581).

November 1997

11

Respectfully submitted,

KENNETH W. CoTTon

WiPF & CoTTON

P.O. Box 370

Wagner, South Dakota 57380

(605) 384-5471

Counsel for Respondent

APPENDIX

Tribe v. Kneip, 430 U.S. 584 (1977) (No. 75-562)

of Oral Argument at 18-27, Hagen v. Utah,

510 U.S. 399 (1994) (No. 92-6281)

la

APPENDIX

Transcript of Oral Argument at 13-21, Mattz v. Arnett, 412

U.S. 481 (1973) (No. 71-1182).

[13] ORAL ARGUMENT OF

HARRY R. SACHSE ON BEHALF OF THE

PETITIONER AS AMICUS CURIAE

MR. SACHSE: Mr. Chief Justice, and may it please

the Court:

The United States agrees with the position taken by

Mr. Sclar and by the petitioner in this case. What I want

to try to do is put this 1892 Act into a little bit of his-

torical perspective.

As Mr. Sclar said, the Yuroks always lived in this area.

Twice they had their reservation recognized by Executive

Order, 1855 and 1891. The 1891 Act was an obvious

reaction to the legal problems that had been recognized

in the 1889 Court of Appeals case.

In 1892 it may be that the House of Representatives

set out to take from these Indians much of what had been

theirs. But what the House set out to do, the Senate cor-

rected. And there is a very marked contrast between the

Act that was finally passed and the Act that was intro-

duced in the House. The Act as it was finally passed in

our view is quite clearly a special allotment Act similar

to a number of other allotment Acts that were passed in

that general time and which did not terminate the reser-

vation in question.

I would like to first mention something about the [14]

General Allotment Act. I think that’s important in this.

By the 1880's most of the Indian reservations had been

created. But there was a pressure by the settlers around

those reservations to get some of the land in the reserva-

tons. They felt the Indians were not utilizing that land.

And on the other hand there was a pressure to keep faith

with the Indians and not to take from them what had

2a

recently been given to them. A sort of compromise was

worked out in the General Allotment Act of 1887 called

the Dawes Act. It has subsequently been repudiated

in the Indian Reorganization Act of 1934. The Dawes

Act set up this system, that whenever the President

thought it was wise to do so, he could require all the

Indians within a reservation to take allotments of a par-

ticular number of acres each. This would usually leave

considerable land in the reservation that was not allotted.

The President then with the consent of the Indians, which

it was assumed in those days he could obtain, would open

the rest of the reservation for homesteading, but the fees

charged to the homesteaders would be used for the benefit

of the Indians who lived on the reservation.

Now, that was the General Allotment Act. The Gen-

eral Allotment Act did not require the President to open

any particular reservation in this way. And Congress

passed a number of special allotment Acts. We have

listed those that have been in litigation on page 22 of

our brief, Footnote 18. [15] These special allotment Acts

would take the matter out of the hands of the President

and tribe and Congress would say, “We want allotments

made on a particular piece of land. We want, once the

allotments are made, we want to open the rest of it to

settlement, and we want funds collected from the settlers

to be administered by the Government for the benefit of

the Indians that lived on that land.”

Many of the special allotment Acts made particular

reference to the General Allotment Act saying that the

allotments would be made under the terms of the General

Allotment Act.

It’s very significant that the funds obtained in such an

Act were to be used for the benefit of the Indians who

remained in the reservation. And this meant, of course,

a continued Federal involvement with that reservation,

both in handling the land transactions and in administer-

ing the funds that would be created by this procedure.

3a

In our view, the 1892 Klamath River Act is that kind

of special aHetment Act. In our brief when we cited

the language of the Act, we put in dark provisions, the

part added by the Senate, which together with the final

paragraph that had been there all along make this Act

exactly a special allotment Act of the area of that reser-

vation that was affected.

QUESTION: Ultimately homesteaders’ land would be

[16] within the reservation?

MR. SACHSE: That's correct.

Now, this Court early—

_ QUESTION: Would you take the same position even

if some was allotted, some was homesteaded and the

people and all the restrictions on the allotments had ex-

pired and the allotted lands had been sold to whites?

MR. SACHSE: Unless Congress had in some—we

don’t reach that issue here because there still is allotted

restricted land in this reservation.

QUESTION: Well, let me ask you. In an Indian

reservation that’s along a river, who owns the bed of the

river?

MR. SACHSE: Well, in this case, this Court in

, : Don-

nelly has already held that the Indians own the bed of that

river. It has never been taken from them.

QUESTION: And that has never bee

anbo gone n allotted to

. SACHSE: It has never been allotted to anybod

That's still communely held Indian land as far as ~ a

concerned, and there is not a word in the 1892 Act—

QUESTION: Whether the reservation exists or

whether it doesn’t, and regardless of who owns the river

bed, is there some treaty or some law defining Indian fish-

ing rights? Or is it just ancestral fishing rights that have

[17] MR. SACHSE: It’s somewhere between the two.

There were ancestral fishing rights, but this Court in Don-

nelly held specifically that the 1891 Extension that ran

4a

snaking 40 miles down the river was done specifically to

preserve the fishing rights that the Indians had.

QUESTION: Which were what?

MR. SACHSE: I think the exclusive rights to fish in

that river.

QUESTION: The exclusive right to fish there?

MR. SACHSE: Since it was made an Indian reser-

vation, the purpose of which is that this area is to be

reserved for the Indians, and since surplus lands were sold

but nothing was done—

QUESTION: You would say, then, I suppose, that

since the Indians owned then and still own the bed of the

river, that even if all of the riparian land was in other

ownership, the Indians would have the exclusive right to

fish in the river?

MR. SACHSE: I would say—yes, I would say that.

But I don’t think this case requires us—

QUESTION: Don’t you have to hold that? Because

there is some river riparian land that is not owned by the

Indians.

MR. SACHSE: Well, here is the way I would analyze

this case, but I think what you have raised is also a pos-

sible [18] analysis, a possible way to handle the case.

The 1891 Act established an Indian reservation, a mile

on both sides of the river including the river and going

all the way down to the sea. This Court in Donnally held

that one of the primary purposes of establishing that res-

ervation was to secure to the Indians fishing rights of

that river. That reservation has never been abolished.

The 1892 Act which let other people than Indians settle

in this area while preserving also Indian settlement, sim-

ply did not abolish the reservation. So the reservation is

still an area of Federal jurisdiction and protection, except

to the extent that Public Law 280 has given the State of

California certain criminal and civil jurisdictions in it.

Public Law 280 specifically reserves federally granted

fishing rights and these were granted by Executive Order

as this Court held in Donnelly.

Sa

QUESTION: That still leaves the question of what—

you said “exclusive.”

MR. SACHSE: No. Let me say this. The issue was

not argued below as to exactly what the consequences of

this being held to be an Indian reservation. The court

went up on the question it was not a reservation.

QUESTION: The scope of the Indian rights and

whether or not the kind of fishing the Indians now want

to do is the kind of a fishing right that was historically

exercised has not been settled.

[19] MR. SACHSE: That is correct. And we have

only asked this Cout to determine the question of whether

this remains Indian country, whether this remains an In-

dian reservation, with a remand after that has been de-

termined to the California courts.

QUESTION: You think that it may be irrelevant

whether the reservation exists or not if it’s true that the

Indians still own the bed of the river.

MR. SACHSE: I don’t think it would be irrelevant.

I think it would matter from the standpoint of criminal

and civil jurisdiction. It would only be irrelevant if the

Court were to find that Public Law 280 had granted such

total jurisdiction to the State of California that even if

it is a reservation all that is left is the ownership of the

river. So I think it still is relevant.

I would like to get back to the specific point that this

Court is faced with, and that is has this allotment process

terminated the reservation. And because I am running

out of time, I would just mention this very quickly. That

in United States v. Celestine, the Court first had to de-

termine this problem, 215 U.S. And in that case the

Court held in a careful opinion that the General Allot-

ment Act is inconsistent with termination of a reservation,

that allotments under that Act and even disposal of lands

to non-Indians does not terminate a reservation. In

United States v. Nice at 241 U.S.—these [20] are all in

our brief—the Court held that a special allotment Act

should be interpreted in accordance with, policy in the

6a

General Allotment Act and that a special allotment Act

on the Sioux reservation though it required the Sioux to

take, on that reservation, allotments, required the Presi-

dent to dispose of the extra land, did not terminate Fed-

eral jurisdiction, did not terminate the reservation, did

not terminate Federal jurisdiction even as to the land

that was disposed of to non-Indians.

This same policy is recognized more recently by this

Court in Seymour v. Superintendent and also has been

codified by Congress in its definition of Indian country

as including all the land within the boundaries of an

Indian reservation whether patented or allotted or not.

There have been two very recent cases we mention in

our brief also, one in the Eighth Circuit, City of New

Town, and another in the Supreme Court of South

Dakota, State v. Molash, that had this same consistent

interpretation of special allotments Acts indistinguishable

from the 1892 Klamath River Act.

In closing, since I assume I am out of time, I refer

the Court to page 17 of our brief where we have samples

of language that Congress used when it did want to dis-

continue a portion of a reservation. “The Smith River

Reservation is hereby discontinued,” Congress said. Or.

“The reservation lines [21] of the Ponca and Otoe and

Missouria Indian reservations be, and the same are hereby

abolished.” There has been no confusion between an Act

that simply opens the reservation to allotment and settle-

ment and one that abolishes the boundaries of a reser-

vation.

Thank you.

Ta

Transcript of Oral Argument at 9-24, Erickson v. Feather

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

(1975) (No. 73-1148).

[9] ORAL ARGUMENT OF

HARRY SACHSE, ESQ., FOR THE

UNITED STATES AS AMICUS CURIAE

MR. SACHSE: Mr. Chief Justice, and may it please

the Court:

I want to say a word first about any Indian reservation,

before talking about this one, because it seems to me that

the discussion so far has been a bit confusing about that.

In almost every Indian reservation in the country there’s

land that has been allotted to Indians, there’s land that has

been sold in fee simple to people who are not Indians.

There’s often a large non-Indian population inside an In-

dian reservation.

One of the characteristics of this reservation is that

there’s such a large Indian population inside, and that

there’s a going tribe, with an organized government and

an agency of the BIA, and a very alive and viable situa-

tion.

Basically, and without trying to get into all of the de-

tails of it, the State in which an Indian reservation is

[10] situated has full jurisdiction over non-Indians who

live inside an Indian reservation, both civil and criminal

jurisdiction. This Court held so in a number of cases,

starting in the Nineteenth Century with McBratney and

Draper which were criminal cases. And Justice Frank-

furter laid this out in a good deal of detail in Cake vs.

Egan and the Metlacotla cases in about 380—

QUESTION: _Is that civil as well as criminal?

MR. SACHSE: Civil as well as criminal.

QUESTION: Cake v. Egan—

QUESTION: Irrespective of whether they live on

allotted lands?

MR. SACHSE: Irrespective of where they live within

the—

QUESTION: But in present actions with an indian,

they’re going to be subject to federal law.

MR. SACHSE: Correct. If the transaction is with an

Indian or affects the vital interests of the tribe, they're

going to be subject to federal law. The exact extent of

that is the kind of thing that’s still debated before you,

in a case such as the Maserie case that’s under advisement.

QUESTION: And it may be debated eventually in this

case, I take it?

MR. SACHSE: And may eventually be debated here.

Now, I think I need to review some law concerning

[11] this Treaty as well as—this reservation, as well as

the facts.

First, briefly to the facts:

A permanent reservation was established by Treaty in

1867, with surveyed boundaries. And it’s this reserva-

tion, which is much smaller than the land the Indians had

previously had. They had already had their big loss of

land, and this was what was left to them, after great

amounts of land had been taken away from them.

Then, by an agreement in 1889, made specifically

under the General Allotment Act; and at a time when the

Indians were in great distress, that the moneys owed to

them by the federal government had not been paid to

them, it was the middle of winter.

The federal government negotiated with the tribe to do

what’s known as open its reservation. That is, to allow

the sale of surplus land within the reservation. And in

this agreement and then in the Act of Congress that rati-

fied it, there are numerous references to the General Allot-

ment Act. There is no such thing as was true with the

north half of the Colville Reservation, where a particular

part of the reservation was cut off and express language

was used, saying that that has been removed from the

reservation.

9a

You've heard some talk about the public domain.

What’s important in this Act is there is no language say-

ing [12] that this was returned to the public domain.

QUESTION: But you do have language of “cession”.

MR. SACHSE: You do have language of “cession”,

that is correct.

QUESTION: _Isn’t that even stronger?

MR. SACHSE: But there is no specific area ceded,

what’s ceded is what is not allotted—

QUESTION: But, as a matter of fact, it’s treated as

the public domain.

oe SACHSE: I—I don’t know what you mean by

that.

QUESTION: Well, what happened after the ceded

property?

MR. SACHSE: After the property was ceded,—

QUESTION: Yes?

MR. SACHSE: —the government sold that land

under—

QUESTION: Treated it like the public domain.

Pens SACHSE: Well, only in the exact same sense

at it—

QUESTION: Well, it was handled as part of the pub-

lic domain, by the same system that the public domain

was handled.

QUESTION: Weren’t they acting for the Indians?

MR. SACHSE: That is to say—and I'll try to get

this in the—I think I may do better to break it down into

historical perspective.

[13] But the Indians were paid for the land. How were

they paid for it? It was put in the Treasury of the United

States, to be used for their benefit. In other words, it’s a

bookkeeping entry from one government place to another.

The money—the Indian Agency was maintained, the

money was appropriated by the government as needed

for the Indians. The land was opened for homesteading

but only for homesteading, not for any purpose.

10a

You have the exact same actual dynamics that occurred

in the south half of the Colville Reservation, which this

Court held in Seymour v. Superintendent, did not abolish

The same dynamic that was done in Mattz v. Arnett,

as to that reservation; namely, the non-Indians got what

they wanted, the Indians got what they could. The non-

Indians got the right to settle that land. The Indians got

the money from the settlement of that land, which was

small enough.

The question remaining is: What happened to the fed-

eral jurisdiction? What happened to the jurisdiction of

aad pproach that problem

And I want to a t now.

QUESTION: Would it be fair to say that the United

States in those transactions was acting as the broker for

the Indians, to announce publicly that settlers could come

in and buy it for $2.50 an acre?

[14] MR. SACHSE: It’s exactly so, and we quote in

our brief where one of the Senators objected to the cession

idea, to the fact that the government would pay the money

And one of the other Senators explained to him, said:

This doesn’t mean anything, because this is just a book-

keeping transaction in the Treasury. We get right back

the money that we’re going to pay to the Indians, as we

sell off the land.

Now, in some later Acts, the government decided to do

it the other way, to not pay the Indians at first, to only

pay the Indians as the land was sold. ee 3

But the practical effect of both kinds of Acts is identi-

cal, that the Indians kept, lived on the allotted land, the

unallotted and was opened up for homesteading, because

it was thought in this—this was said to the Indians in the

negotiations, and the Court talked about this in Mattz—

t this in Mattz vs. Arnett.

this kind of thing was that it was

lla

for them to live next to a high caliber of citizen who

would be farming his land, and so forth. That's the kind

of language that was used.

And that was the same whether the Indians said they

ceded it first, or said—or the government acted as agent,

disposing of it.

And, by the way, this language “cession” in the Ash

[15] Sheep case, which we discuss in our brief, is used in

connection with an arrangement where the government

only acted purely as agent, where they simply—whenever

someone wanted a piece of the land, would sell it to him

then, and give the money to the Indians. The word “cede”

was used.

But obviously with no technical—

QUESTION: What impact, if anything, did the ces-

sion have, followed by the sale for homesteading or the

settlement for homesteading? What happened as a conse-

quence, or what was the impact with respect to the juris-

diction of the State, if anything?

MR. SACHSE: Of the State? None. None.

The cession of the land or the selling in fee simple of

land inside an Indian reservation, say, as in the reserva-

tion in Mattz—in Seymour vs. Superintendent, the south

half of the Colville. That then is land owned by a non-

Indian inside an Indian reservation.

QUESTION: Well, yes, but you would apparently

think the State has civil and criminal jurisdiction over non-

Indians on that.

MR. SACHSE: Clearly.

QUESTION: How about the State’s trespass law?

MR. SACHSE: The State’s—the State’s trespass law

would clearly apply to non-Indians, but that would be—to

the extent that it is applying—

[16] QUESTION: Well, how about to the owner—

how about the owner of the deeded land, the ceded land,

he now has a fee simple title to it—

MR. SACHSE: Okay.

12a

QUESTION: —and he wants to keep people off his

land, and he does it in the name of the State’s trespass

law. May he do so?

MR. SACHSE: I don’t think he could keep an Indian

from—

ON: R ?

SR SACHSE: ea in el ide an Indian

reservation—

QUESTION: Well, let me talk to them about—

MR. SACHSE: Yes?

QUESTION: —a non-Indian. Can he keep a non-

Indian off in the name of the State’s trespass law?

MR. SACHSE: Clearly, yes.

QUESTION: So the State’s law does apply there.

MR. SACHSE: What I'm saying is that in a transac-

tion between an Indian and a non-Indian—

QUESTION: Well, I didn’t ask you about transac-

tion, Mr. Sachse, I asked you about the State’s trespass

law.

Does the State—after the land is deeded, does the

State’s trespass law apply to that land?

Certainly it doesn’t—

[17] MR. SACHSE: It_applies to that land as to non-

Indians but not as to Indians.

QUESTION: So an Indian—

MR. SACHSE: The State’s criminal law does not

apply to Indians inside an Indian reservation.

QUESTION: And so it just—so the State sovereignty

just doesn’t apply to that land, no matter who it’s owned

by, as far as keeping an Indian off of it is concerned?

Is that your thesis?

MR. SACHSE: I think that’s correct. That would be

under federal law or under tribal law, if it’s a matter affect-

ing an Indian inside an Indian reservation.

Now, the General Allotment Act left a lot of questions

unresolved. And the early questions that were unresolved

was whether a reservation existed at all after there had

been allotments, and whether even allotted land was In-

dian land under federal jurisdiction.

13a

And the Court first addressed that question in 1909,

in U.S. v. Celestine, in which it held that even though

land had been allotted to an Indian and patented to the

Indian, that the land remained inside the Indian reserva-

tion, that no land was removed from an Indian reservation

until it specifically removed by Congress from the reser-

vation.

That proposition was extended in 1916, in United [18]

v. Nice which held that the tribal relations of the Indians

continues and that federal liquor laws would apply to

Indians anywhere within the reservation. But, the im-

portant thing was this, that the States were claiming, just

as the State claims here, that opening a reservation and

alloting lands to Indian meant that federal jurisdiction and

tribal jurisdiction would only apply on the allotted lands.

This creates several problems, one’s the obvious one of

having to check plat books to see whose jurisdiction ap-

plies where, the other one’s even a bit more complicated,

these red dots move around, the Tribe buys new land, land

can be consolidated. As under a recent act of Congress,

this Tribe has an active program of purchasing new land

which Congress described as within the reservation.

Thereby, again recognizing that the reservation still

existed.

QUESTION: Must have been the situation for a good

many years?

ANSWER: Thats right.

QUESTION: Hasn’t been a great deal of trouble

about it, has there?

ANSWER: Well, I think there has. What has really

occured is that there has been no law and order on a lot

[19]of Indian reservations. And part of the problem has

been that the federal government hasn’t done its job, the

State hasn’t done their job, and the tribes have been too

weak to do anything.

QUESTION: Well, what is the State’s job? What does

this State—on an Indian reservation?

MR. SACHSE: In this—in a reservation—

l4a

QUESTION: On an Indian reservation, what is the

State’s responsibility, if any?

MR. SACHSE: The State’s responsibility in an Indian

reservation is as to non-Indians, to maintain law and order

in matters between non-Indians. The federal government

and the tribe have responsibility of maintaining law and

order in matters that affect Indians.

And neither one of them should have to look at the plat

book to do it. It’s a question of whether the person is

Indian or non-Indian. That's a difficult enough problem,

without having to figure out whether a policeman can go

on this piece of ground or that piece of ground.

QUESTION: Does a non-Indian ever get in conflict

with an Indian?

MR. SACHSE: Yes, and when that happens, that’s

federal jurisdiction, under 18 U.S.C. 1151. And it makes

a good deal of sense for the federal—

QUESTION: Is that generally or is—that’s true [20]

if it’s on a reservation.

MR. SACHSE: _If it’s on a reservation, that’s right.

QUESTION: But not otherwise.

MR. SACHSE: If it’s off the reservation, it would

—it would not, that’s right; it would be State jurisdiction.

QUESTION: Ina civil dispute—

MR. SACHSE: No. Excuse me, that’s inaccurate. If

it’s not on Indian country, it would be State jurisdiction.

There could be Indian country off a reservation.

QUESTION: Well, yes. Patented land is Indian coun-

try by statutory definition; correct?

MR. SACHSE: That's right.

QUESTION: In a civil dispute, under Williams v.

Lee, isn’t a federal question, it’s a question for the tribal

court, if it’s on a reservation. ;

MR. SACHSE: That's correct. That within an Indian

reservation, in a matter affecting Indians, the jurisdiction

—the original jurisdiction, the root of the jurisdiction was

tribal jurisdiction. But the federal government, through

15a

numerous statutes, has preempted great parts of that juris-

diction. And for all major crimes, for instance, there’s fed-

eral jurisdiction. But in a civil dispute between an Indian

and a non-Indian on an Indian reservation, it’s tribal juris-

That's Williams vs. Lee.

[21] QUESTION: Laying aside the major crimes ques-

tion, and you had a very simple statement that I understood

for a moment or two there—when you said it

desn’t depend on geography or plats, it depends on the

racial origin.

Now, were you confining that to reservations, as you

suggested first, or to Indian country?

MR. SACHSE: I’m—that is true in Indian country.

But if you—lIndian country is any land inside a reserva-

tion. If this Court were to hold this reservation had been

abolished by the 1891 Act, which I think would be a

very restrictive and artificial interpretation of what the

Court’s done in Mattz and in Seymour vs. Superintendent,

and I think it would also undercut 18 U.S.C. 1151 seri-

ously. At least for this reservation.

QUESTION: Yes, but go ahead. If the Court should

hold—

MR. SACHSE: If the Court should hold that, then

each one of these red spots is a little island of federal

and tribal jurisdiction, and we’re not in a time now when

these—

QUESTION: That's the way it’s been, isn’t it, as my

brother White suggested?

MR. SACHSE: The way it's been is that everyone

has ignored both the Indian and federal rights there, and

this—[22] I don’t want to testify, but I don’t think the

Court should assume that the situation has been good, and

that you can assume that because we haven't faced this

issue before that it’s perfectly all right to leave it another

fifty years.

16a

QUESTION: On the other hand, if the Court should

decide that the statute, the cession statute didn’t amount

to a conveyance,—

MR. SACHSE: Yeah.

QUESTION: —then the result would be that the State

would no longer have any power to enforce its laws in

any of these several counties, if any Indian was involved.

MR. SACHSE: That's correct. It would be a federal

question, as in any other Indian reservation,—

QUESTION: Wherever it occurred.

MR. SACHSE: —wherever it occurred, and this is

something that Congress has decided is a proper way for

the federal government to exercise its—

QUESTION: Well, if this is an Indian reservation.

MR. SACHSE: Yes. And whether this one is or not,

it would be the same situation you're describing in other

reservations of the State, that clearly are reservations.

We're speaking of the proposition that this, what we

call a reservation, where a major tribe lives and where

there’s a major number of Indians, should be treated like

the other Indian reservations in the State.

[23] QUESTION: Well, I suppose the vast proportion

—this is something like, what, 27,000 non-Indians and a

few, 3,000-plus Indians?

MR. SACHSE: That's right.

QUESTION: In this Lake Traverse area.

MR. SACHSE: That's correct.

But we're not trying to subject the non-Indians to fed-

eral or Indian jurisdiction except to the extent needed to

fulfill the trust responsibilities—

QUESTION: Which means that whenever they're in-

volved with an Indian—

MR. SACHSE: That's right.

QUESTION: —the State does not have any jurisdic-

tion—

MR. SACHSE: That's correct.

QUESTION: —with respect to its civil, criminal or

family or status law.

17a

QUESTION: It was suggested that the tribe had

recently passed an ordinance that asserted rather expansive

jurisdiction within this area. Is that true or not?

Or do you know?

MR. SACHSE: I ‘:aven't seen it. I've heard that

that’s so. I suspect that it goes beyond the authority that

the tribe has.

QUESTION: Because it reaches non-Indians?

[24] MR.SACHSE: Yes.

QUESTION: Well, how do we know that the tribe

doesn’t have authority to reach non-Indians?

MR. SACHSE: Well, the McBratney case and the

Draper case in criminal matters.

QUESTION: Well, all McBratney says is that the

State has the right to try a white man for a crime that

took place on an Indian reservation. It doesn’t say the

tribe couldn’t try him.

MR. SACHSE: Well, I suppose I just have to answer

that this has been the—at least tacit holding of this Court,

or assumption of the Court in a number of cases. And

I refer to Cake v. Egan, where Justice Frankfurter tried to

lay out the limits on tribal jurisdiction. And it’s never

been faced directly in the last ten years, perhaps, by this

Court, but it has been faced before.

QUESTION: Well,—

MR. SACHSE: My time is up, and I’m feeling bad

about taking all the time of my partner.

MR. CHIEF JUSTICE BURGER: We'll take care of

that; you’re on our time for a minute or two here.

Mr. Justice White, did you have a further question?

QUESTION: No, I didn’t.

MR. CHIEF JUSTICE BURGER: We'll hear from

your friend, then.

18a

Transcript of Oral Argument at 18-30, Rosebud Sioux Tribe

v. Kneip, 430 U.S. 584 (1977) (No. 75-562).

* * * *

[18] ORAL ARGUMENT OF H. BARTOW

FARR, ESQ. ON BEHALF OF U. S. AS

AMICUS CURIAE

QUESTION: Mr. Farr, before you commence, will

you help me understand the facts situation?

The main issue, as I understand it, is the boundary of

the Reservation.

MR. FARR: That is right.

QUESTION: The location of the boundary. Who Oc-

cupies the land within the disputed area? Do Indians still

occupy part of it?

MR. FARR: There are Indians within the disputed

area but I think the area is largely occupied by whites who

purchased or successors of the people who purchased the

open lands.

QUESTION: Right. And the principal interest of the

Indian Tribe, as I understand it, is whether the Tribe or

the state exercises jurisdiction within the disputed area.

MR. FARR: The Tribe and the Federal Government

or [19] the state, yes.

QUESTION: Right. Well, who, in fact, has exer-

cised jurisdiction legally? What laws have prevailed

within the disputed area in recent years? How far back?

MR. FARR: Well, this is a question which I think

the record is unclear on, Mr. Justice Powell. Essentially,

the United States, as the United States understands the

position—of course, not having been the party to the suit

throughout, there has been some exercise of jurisdiction

by the state, they having taken the position that this is

land outside of an Indian Reservation to which their juris-

diction applies.

QUESTION: Have state criminal laws been imposed

or enforced within the disputed area?

MR. FARR: I believe that the state has, you know,

gone ahead and imposed state criminal law as well as,

19a

though, I think the Federal Government and the U.S.

Attorneys have also imposed some federal law but there

has basically been a kind of working relationship in this

area.

I am not sure how much of this is reflected by the

record but I think as a practical matter that is generally

what has been happening.

QUESTION: All right. Just one other question. We

are not concerned with the individual title of any particu-

lar parcel of land, are we?

[20] MR. FARR: Weare not.

QUESTION: Just the boundary of the reservation.

MR. FARR: That is right.

QUESTION: Right.

MR. FARR: Mr. Chief Justice and may it please the

Court:

The United States is appearing this afternoon as amicus

curiae is support of the position of the Rosebud Sioux

Tribe that the decision of the Court of Appeals for the

Eighth Circuit should be reversed.

We think that under the principles set forth by this

Court in previous cases, particularly in Seymour, Mattz

and DeCoteau, that it is clear that the acts of 1904, 1907

and 1910 did not disestablish the boundaries of the Rose-

bud Sioux Reservation in the areas to which they applied.

I would like to note briefly at the outset one important

general point. In suggesting that Congress did not dis-

establish the boundaries of the Reservation in the early

1900’s, we do not mean to imply that Congress expected

that those boundaries and the boundaries of comparable

reservations were going to continue indefinitely.

We agree that in the early 1900’s, Congress contem-

plated at some period of time that the Reservation system

would, in fact, come to an end but we believe that time

was when the trust period on Indian allotments expired

and the (21] assimilation of Indians and white settlers

on the lands had been accomplished.

QUESTION: And in your view, it would have taken

an Act of Congress later, then, to—

20a

MR. FARR: That is corect. Congress at some point

would have found that the assimilation had occurred and

would have passed an Act abolishing the Reservation.

At that point, all of these lands and all ofthe people

on it—except if the Federal Government wished to retain

jurisdiction over the Indians—would have gone within

state jurisdiction.

In 1934, however, as the Court is aware, Congress re-

versed that policy when it passed the Indian Reorganiza-

tion Act and definitely extended the trust period on the

Indian allotment.

I will discuss that more briefly in connection with the

General Allotment Act of 1887.

Because this case involves an issue of statutory interpre-

tation, the United States does not urge or perhaps even

believe it is possible for this Court to lay down a binding

fixed rule that would govern construction of acts in all

similar cases.

However, we do believe it is appropriate for this Court

to reaffirm the principle that except for the language of

an act or the compelling legislative history, shows a clear

[22] intention by Congress to contract Reservation boun-

daries and limit federal jurisdiction over certain areas of

Indian reservations, that whenever Congress without a

binding agreement opens lands to white settlers, it does not

pay for them and does not guarantee any payment but

only agrees to act as trustee for future uncertain sales and

leaves the property interest in the Indians—as they did

in this case—that act does not remove the lands from the

boundaries of the Reservation.

As this Court said in Seymour, discussing an act with

very, very similar terms, the purpose of the 1905 Act is

neither to destroy the existence of the Reservation nor to

lessen federal responsibility or jurisdiction over the In-

dians having tribal rights on that Reservation.

Now, this principle that Congress did not intend to dis-

establish the Reservations is not one that the government

2la

has made up out of whole cloth. It is supported both by

history and by the previous decisions of this Court.

To begin with, it is well-recognized that the Tribes

are entitled to rely on certain rules of statutory construc-

tion. In particular, doubtful expressions are to be resolved

for the benefit of the Indian.

More particularly, in cases of these types—of this type,

the intent to disestablish Reservation boundaries must be

made clear, either from the Act or the legislative [23]

history and as this Court said in Rice versus Olson, the

policy of leaving Indians free from state jurisdiction and

control is deeply rooted in the nation’s history. All of

these rules of construction apply to the case at hand.

Equally important—

QUESTION: Mr. Farr, may I interrupt you?

MR. FARR: Certainly.

QUESTION: As I understand the geography, we

really are not talking about very many Indians because all

of the unsold land has been restored to the Indians and

all the land which was sold was sold to whites. Isn’t that

right?

MR. FARR: Well, those facts are true, yes. But in

terms of the area in which we are talking about, we are

talking about a considerable area of land in which In-

dians will either be able to move within federal jurisdic-

tion or will be moving within the state jurisdiction and of

course, Indians do have allotments within those open

areas.

QUESTION: Within the open areas.

MR. FARR: Yes. They do.

QUESTION: But could you clarify one thing? What

percentage of the—what portion of this total land- was re-

stored in 1934? How much of the original reservation

is in dispute?

MR. FARR: _I would love to answer that question but

I have no idea.

[24} QUESTION: The record does not tell us, I take

it.

22a

MR. FARR: No.

QUESTION: But these would be probably noncon-

tiguous parcels, wouldn’t they? The would be little islands.

MR. FARR: They are likely to be, right. I mean,

depending on the settlement practices and who defaulted

and who did not, the lands that would be left available

would be likely to be individual tracts. That is correct.

QUESTION: One more last question. Does the rec-

ord tell us how many Indians live on the lands in dispute?

MR. FARR: I believe that there is a figure stated in

one of the opinions below that—I think that the Reserva-

tion covers about 7,000. I think that the areas that we

are talking about, the counties that we are talking about,

the number of Indians is somewhere around 1,600 or

1,700. I think that is reflected in the record.

QUESTION: I see. And those would be Indians that

reacquired lands or now occupy lands which were orig-

inally—

MR. FARR: Well, not necessarily. Again, they may

be Indians who were allotted lands at the time that these

areas were opened. When the areas were opened, Indians

were first given an opportunity to select allotments within

those areas.

QUESTION: Well, wouldn’t, by virtue of those allot-

ments, wouldn’t that land be Indian country?

MR. FARR: That land is Indian country.

[25] QUESTION: There is no dispute about that.

MR. FARR: No, I don’t believe so.

QUESTION: How many Indians occupy land over

which there is a dispute? Do we know that?

MR. FARR: I do not know.

QUESTION: And there would be very few, would

there not?

MR. FARR: Vell, I don’t know how many there

would be, but I think—I might just say that the principle,

I think, extends further than that because jurisdiction,

if it only applies on allotments, the Indians, any time they

23a

step off their particular allotments onto territory that is

owned by a white settler may at that point be subject to

state jurisdiction and that is something that clearly the

Indians do not want and which is an interest we feel that

we ought to protect in this case.

Turning to the General Allotment Act of 1887

briefly—

Seepage ; In other words, the nonreservation land

can is Indian country if it is owned by the individ-

ual Indians. ah

MR. FARR: That is correct. That applies in—

QUESTION: And by the same token, or the other

side of the same coin, within a Reservation there can be

fee simple and non-Indians.

MR. FARR: Well, there can be fee simple and

[26] non-Indians in terms of land ownership.

mg oe That is what I mean.

- FARR: No question. However, for purpose

jurisdiction— i

QUESTION: Well, we are talking now about the geo-

graphic boundaries of the Reservation.

MR. FARR: _ That is correct. Now, the definition of

Indian country, just to make sure that I have answered

your question properly, the definition of Indian country

in 1151 includes all areas including patented lands within

a Reservation within Indian country and also, Indian allot-

ments outside the boundaries of a Reservation within In-

dian country.

QUESTION: So within a Reservation, land owned in

fee simple by non-Indians is still Indian country.

MR. FARR: That is correct.

5 QUESTION: Do you know what the relative propor-

tion of whites and Indians is in the area that is disputed?

MR. FARR: If my memory serves me correctly, Mr.

Justice White, I think there are somewhere

whites and 1,600 Indians. a a

QUESTION: 16,000 whites and 1,600 Indians.

24a

MR. FARR: I believe that is correct.

We also believe, in addition to the presumptions that I

discussed a minute ago, that the General Allotment Act

of 1887 has—that the policies and objectives of that are

[27] consistent with the principle that an act such as this

does not disestablish Reservation boundaries.

Although Respondents in their brief have continually

turned the General Allotment Act on its head saying

that it embodies the intent of Congress to disestablish

Reservations, this Court has considered that precise ques-

tion in several recent cases and found the opposite intent

and we believe the Court correctly identified the intent of

the General Allotment Act only last term in Moe versus

Confederated Salish and Kootenai Tribes, in which you

quoted from Mattz with approval the following language:

“Its policy, that of the General Allotment Act of 1887,

was to continue the Reservation system and the trust status

of Indian lands but to allot tracts to individual Indians for

agriculture and grazing. When all the lands had been al-

lotted and the trust expired, the Reservation could be abol-

ished.” And that is the Act of Congress that I said in

answer to your question, Mr. Justice Rehnquist.

Unalloted lands were made available to non-Indians

with a purpose in part of promoting interaction between

the races and of encouraging Indians to adopt white ways.

QUESTION: When was that Act?

MR. FARR: That is 1887.

QUESTION: °87.

MR. FARR: Right.

[28] And in fact, Respondents have said that this Sioux

Act, in fact, followed along from that general plan.

We think that that indicates that the Court has recog-

nized an intent to retain jurisdiction and control over

those lands during the trust period with the consideration

of whether to end the Reservation to be made at a later

time when the assimilation had occurred and we think the

Court has noted that even more specifically in the cases in

25a

which we very heavily rely on in our brief. Seymour and

Mattz and also in DeCouteau, which distinguishes both

cases in a case where sale was made for a sum certain and

an agreement was made, as counsel for the Tribe has

discussed.

In addition to these guiding principles, we also feel that

jo mag Soni a and the administrative treatment

we have set in our brief su iti

wry ag pports the position

The remaining question then is, what is there sufficient

- override this in the materials that the Court has before

it

Most importantly we call the Court’s attention to the

fact that there is nothing in the Act that says specifically

— jurisdiction over these areas was to be given to the

State.

In fact, I think, as a reading of the legislative history

shows, Congress was really not concerned with the [29]

jurisdiction at this point. The pressure on Congress was

to open up lands for white settlers for two reasons, one,

the settlers wanted the lands and two, the counties wanted

a greater tax base.

Both of those objectives could be met perfectly com-

fortably by Congress by opening lands within the Reserva-

tion boundaries without sacrificing the principles of the

General Allotment Act of 1887 which was to continue the

Reservation during the period of assimilation.

QUESTION: Well, could the counties tax white-

owned lands within the Reservation?

MR. FARR: Yes.

I don’t believe that there is any dispute about that, but

that was considered at that time and I believe, even now,

would be considered land that is within the power of the

State to tax.

In DeCoteau, in fact, discussing the—this particular con-

flict of policy the Court said, in 1887, the General Allot-

ment Act was enacted in an attempt to reconcile the gov-

ernment’s responsibility for the Indians’ welfare with the

4

z

|

ic

g

‘ +.

=

EF JUSTICE BURGER: Very well.

73

27a

Transcript of Oral Argument at 18-27, Hagen v. Utah, 510

U.S. 399 (1994) (No. 96-6281).

* * * *

[18]

ORAL ARGUMENT OF RONALD J. MANN

ON BEHALF OF THE UNITED STATES AS

AMICUS CURIAE SUPPORTING THE PETITIONER

MR. MANN: Thank you, Mr. Chief Justice, and may

it please the Court:

The question before the Court is whether the provisions

of the 1902 and 1905 acts that opened portions of the

Uintah Indian Reservation to settlement by non-Indians

operated to exclude from the reservation the lands that

were opened to settlement. .

QUESTION: Mr. Mann, let me ask you the same

question that I asked Mr. Seneca. If all we have before

MR. MANN: We think it’s quite clear that the lan-

guage would not have been sufficient to alter the boun-

daries of the reservation. The Court’s decision—

QUESTION: How do you explain away Seymour and

the other cases indicating that that language is [19] suffi-

cient?

MR. MANN: I don’t think that those cases do indi-

cate that the language is sufficient. If I could sort of take

you through the cases where this Court has referred to

sidered by

Pelican in 1914, Saf th 0h cases os i no eos

is that the statute does not simply say that the land is

being restored to the public domain. It states that the

reservation is being vacated and restored to the public

domain. Now, the word vacate in our mind carries much

going to be allowed to come in. It means it’s off the reser-

vation from now on.

[20] MR. MANN: Well, it suggests that the reserva-

tion is being vacated, and there are a number of things

that can happen when the reservation is vacated. In this

particular instance, the land is being restored to the pub-

lic domain.

I think that the clearest description—

QUESTION: What does that mean, though, and re-

stored to the public domain? What do you think it means

in that context?

MR. MANN: Well, the clearest explanation the Court

has given in this context is in footnote 17 of the opinion

in Solem, where the Court indicated that the phrase could

well have referred to the fact that the lands were being

made available for sale to non-Indians.

The reference to public lands in Federal statutes has

traditionally referred to lands that are available for sale

as opposed to lands owned by the United States that had

been set aside for some other use, and that’s what the

Court in the Solem case referred to. The—stated that a

reference to public domain in this context was perfectly

consistent with a continuing reservation status.

There’s no reason why lands could not be within an

Indian reservation and be available for sale to non-Indians.

That’s the exact thing that happened in each of {21] this

Court’s cases involving surplus land acts in which the

Court held a reservation was not diminished.

29a

QUESTION: And you say that that’s the meaning

of restored to the public domain, land on reservation

which is available for purchase to non-Indians is referred

to as public domain.

MR. MANN: It doesn’t matter whether it’s on a reser-

vation or not, but the phrase, public domain, could be

understood to refer to lands that are owned by the United

States that are available for sale.

QUESTION: Do you have any instance where—you

say it could be. Do you have any instances where it has

been, other than this statute?

MR. MANN: The statute at issue in Solem, that’s

what the Court indicated the most likely understanding

of the—

QUESTION: That wasn’t the operative language

there. That was just—

MR. MANN: No, but the Court did hold that the land

was on the reservation. That was the holding of the Court,

and the statute stated the land was in the public domain,

so the legal effect of the Solem decision is that land

which Congress had described specifically as being in the

public domain, albeit offhandedly, but in an act that

Congress enacted and the President signed, stated that

[22] that land was in the public domain, and this Court

held that it remained on the reservation.

QUESTION: Well, how about the Rosebud case,

where the statute said restored to the public domain re-

sulted—

MR. MANN: Now, in that case also, you’ll—if you

—when you look at the Rosebud opinion, the statute to

which you're referring is not the statute that was at issue

before the Court, and the reference occurs in a footnote

in the facts statement that described how the Rosebud

Sioux Reservation came to the size that was at issue before

the 1904, 1907, and 1910 acts, and if you actually look

at the statute in that case it becomes fairly clear why the

30a

parties before the Court conceded that the statute altered

the boundaries of the reservation.

The title of the statute states that its purpose is to

divide a portion of the reservation of the Sioux Nation

into separate reservations and to secure the relinquishment

of the Indian title to the remainder.

QUESTION: Well, was that mentioned in_ the

opinion?

MR. MANN: I'm not sure whether it was or not.

QUESTION: If it wasn’t mentioned in the opinion,

it doesn’t add anything to your argument, it [23] seems

to me, to say there were even additional reasons than

those mentioned in the opinion for reaching the result.

MR. MANN: Well, the opinion did not necessarily

reach the result. The parties conceded that the reservation

—that the land in question there has been removed from

the reservation, and the Court was simply summarizing the

fact that that—that the land in question was no longer

part of the reservation because the Great Sioux Reserva-

tion no longer existed, and what remained was the Rose-

bud Sioux Reservation at issue in the case.

And then the Court went on to consider whether the

Rosebud Sioux Reservation had been diminished by the

statutes at issue there, so we think that was adequately

explained by the fact that the parties would have had no

possible basis for suggesting the reservation continued in

existence in light of the clear purpose of the statute at

hand.

QUESTION: Mr. Mann, in deciding whether the pub-

lic domain language could mean what you claim it does

mean, I suppose we look to intent, and there was a ref-

erence to congressional intent a moment ago. The con-

clusion that was stated was that there was no sort of

specific indication, specific to the statutes involved [24]

here, of congressional intent.

Isn't it fair to say, however, that if we look further

into the state of the congressional enactments at the time

3la

of the 1902, 3, 4, 5 acts, that there was very clearly a

policy of the United States, an indication of the policy of

the United States in effect to end the reservation system,

= shouldn’t we read the language in light of that broader

policy?

MR. MANN: Well, this Court has had a number of

cases that have considered surplus land acts from this

period of time, and I think ii’s fair to say that—

QUESTION: And we declined to do that—

MR. MANN: —n all—in all—

QUESTION: —but were we right, or were we wrong?

MR. MANN: No, I think you were right, because

the-——-what’s going on here is, the question of whether res-

ervation boundaries were going to be altered at the time

had little practical significance, because the question of

criminal jurisdiction turned on the definition of Indian

country, which at the time turned solely on who owned the

land, so when Congress opened the land to settlement by

non-Indians, by that very action it was removing at the

time the land from jurisdiction. It didn’t have to consider

whether it was going to alter the [25] reservation bound-

aries.

Now, what the Court has done is, it’s assumed that if

Congress intended to alter reservation boundaries, typi-

cally Congress would have stated so specifically, and it’s

looked very closly to the language of the statutes, and it

has had a number of statutes where Congress has quite

clearly stated that it intended to alter the boundaries of

reservation, and those statutes appear in DeCoteau and

Rosebud, and if you look at them, they quite clearly

state more or less that the land is being ceded, surrendered,

and conveyed, and the Indians are—

QUESTION: Well, certainly, saying more or less is

really something of an understatement, because I don’t

recall in either of those cases that the language said, we

intend to alter the boundary of the reservation.

MR. MANN: Well, the language in DeCoteau said

that the Indians cede, sell, relinquish and convey to the

32a

United States all their claim, right, title, and interest in the

land in question, and the statute in Rosebud stated that the

Indians cede, surrender, grant, and convey to the United

States all their claim, right, title, and interest in and to all

the Jand in question.

t would be rather difficult, I think, to construe that

language as language that allowed the Indians to retain

sovereignty over the land.

[26] QUESTION: I think you're probably right, but to

—lI wouldn’t say that to—it is paraphrasing the language

you just quoted to say, Congress says we intend to dimin-

ish the reservation.

MR. MANN: I think it is paraphrasing the language

to say that that is unambiguous language of cession of the

reservation from the Indian tribe to the United States.

QUESTION: Well, it was cession, but this was not

cession. I mean, Congress can proceed in one of two

ways, either by getting the tribe to cede it, or, if the

tribe does not wish to cede it under Lone Wolf, simply

declaring the reservation ended. You would not expect to_

have the language of cession when there’s been no cession,

and that’s what it is asserted occurred here.

MR. MANN: Of course, the statute in Rosebud was

enacted long after Lone Wolf as weli, and the Indians are

not consenting Congress used the language of cession.

That seems to be—that phrase seems to be the phrase

Congress used when it intended to alter the boundaries

of a reservation.

QUESTION: Well, when it intended to alter the

boundaries of the reservation by cession. That much is

clear. But still, isn’t it the case that in deciding what to

make of the less explicit language, the reference to [27]

returns to public domain, that we should construe that in

light of the overriding congressional policy, which at the

time, as I understand it, was to end the reservation

system?

33a

MR. MANN: Well, but the policy was that the reser-

vation system would be ended sometime, because Con-

gress anticipated that it would end the reservation system

in the future. The concept was not to end the reservation

system directly by these particular statutes. The Court

has repeatedly said that some of the statutes ended them,

and some of them didn’t.

QUESTION: Thank you, Mr. Mann.

* * * *