Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe
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Wy aue 7% 1997
No. 96-1581
IN THE
Supreme Court of the Yuited States
OCTOBER TERM, 1996
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,
ond 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
BRIEF OF CITIES DANTE, GEDDES, LAKE ANDES,
PICKSTOWN, PLATTE, RAVINIA AND WAGNER,
AMICI CURIAE, IN SUPPORT OF PETITIONER,
STATE OF SOUTH DAKOTA
TIMOTHY R. WHALEN
WHALEN LAW OFFICE, P.C.
P.O. Box 127
Lake Andes, SD 57356
Telephone: (605) 487-7645
Counsel of Record
WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
I. THE AGREEMENT IN THE YANKTON
CASE NOW BEFORE THIS COURT IS THE
“FUNCTIONAL TWIN” OF THE AGREE-
MENT AT ISSUE IN DeCOTEAU v. DIS-
TRICT COUNTY COURT, AND THEREFORE
THIS COURT SHOULD REVERSE ON THE
BASIS OF DeCOTEAU
. FACTORS DEMONSTRATING THE YANK-
TON AND SISSETON AGREEMENTS ARE
. ADDITIONAL PROVISIONS IN THE YANK-
TON AGREEMENT AND FACTORS IN THE
SUBSEQUENT HISTORY OF THE YANK-
TON SIOUX TRIBAL GOVERNMENT MAKE
THE YANKTON ARGUMENT FOR DIS-
ESTABLISHMENT EVEN STRONGER
. HISTORICAL DOCUMENTATION CON-
FIRMS THAT THE NEGOTIATORS AND
THE YANKTON INDIANS EQUATED THE
SISSETON-WAHPETON AGREEMENT WITH
THE YANKTON AGREEMENT
. SECONDARY SOURCES SHOULD ALWAYS
—_
o ww
ii
TABLE OF CONTENTS—Continued
VI. THE NEW POST-HAGEN POSITION OF
THE UNITED STATES PROMISES NIGHT-
MARISH CONSEQUENCES AND IS COM-
PLETELY UNTENABLE ...........-c-c:c-c:s-ceceseoeessees
VII. THE ARTICLE XVIII ARGUMENT MAKES
AN ENORMOUS ASSUMPTION AND LACKS
SUBSTANTIVE SUPPORT IN THE YANK-
TON DOCUMENTS ...........-..0--0-e-cscveesssesseeseesssavesens
VIII. THIS COURT SHOULD ACCORD THE LAN-
GUAGE IN THE 1894 ACT ITS ORDINARY
BOTBRANIING .....2.20scc0es:-aceesseosestessssensessunesnnsnesestensensnenianrs
CORRCLAIIIIONN | 3nnneenceseccceresccoseseses ~actinnowewistnsengnniitiinisaummniaal
APPENDIX
Letter of Instruction from the Commissioner of
Indian Affairs to the Sisseton Commission of Au-
gust 18, 1889 (APPENDIX A) ............---.---..-00
Excerpts from H.R. Rep. No. 7613, 59th Cong.,
2d Sess. (1907) (APPENDIX B) ..........................
Proclamation of April 11, 1892 opening the Sisse-
ton-Wahpeton Reservation, 27 Stat. 1017 (AP-
oi). > @ +} i annseaes Se EE ee
Page
3
la
7a
iii
TABLE OF AUTHORITIES
CASES: Page
Andrus v. Glover Construction Co., 446 U.S. 608
nen par a 30
Bates v. Clark, 95 U.S. 204 (1877) —.................... 28
Burlington Northern R.R. v. Red Wolf, 106 F.3d
I ES EE 11
Colautti v. Franklin, 439 U.S. 379 (1979) ........... 30
DeCoteau v. District County Court, 420 U.S. 425
(1975) .. SS
Hagen v. Utah, 510 U.S. 399, (1994) . =e A a _.... passim
Mattz v. Arnett, 412 U.S. 481 (1973) ..... ssa 26
Montclair v. Ramsdell, 107 U.S. 147 ..... EES nt 30
Mountain States Tel. & Tel. Co. v. Pueblo of Santa
ST 30
Oregon Fish and Wildlife Dept. v. Klamath Tribe,
473 U.S. 753 (1985) ...... a Yaa 12, 14, 29
Perrin v. United States, 232 U.S. 478 (1914)... 20
Primeauz v. Lee, Memorandum Opinion and Order,
Civ. 94-9022 (D.S.D. 1995), aff'd per curiam,
Primeauz v. Lee, 74 F.3d 1243 (8th Cir. 1996) 4
Rice v. Rehner, 463 U.S. 713 (1983) 00000. 30
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
aR SSS CERES passim
Seymour v. Superintendent, 368 U.S. 351 (1952) __. 26
Solem v. Bartlett, 465 U.S. 468 (1984) ............... 13, 26
South Curolina v. Catawba Indian Tribe, Inc., 476
U.S. 498 (1986) . peas 29
Spalding v. Chandler, 160 US. 394 (1896) Aldi 28
State v. Greger, 559 N.W.2d 854 (S.D. 1997)... 13
State v. Williamson, 211 N.W.2d 182 (S.D. 1973) . 5
State v. Winckler, 260 N.W.2d 356 (S.D. 1977)... 4
United States v. Forty-three Gallons of Whiskey,
RIES TE 21
United States v. Menasche, 348 U.S. 528 (1955). 30
Ute Indian Tribe v. Utah, 935 F.Supp. 1473 (D.
en 26
Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th
a 26
Washington v. Washington Commercial Passenger
Fishing Vessel Assn., 443 U.S. 658 (1979)... 30
iv
TABLE OF AUTHORITIES—Continued
Page
Weddell v. Meierhenry, 686 F.2d 211 (8th Cir.
eS Se SS EN 5
Wood v. Jameson, 130 N.W.2d 95 (1964) _............ 5
Yankton Sioux Tribe v. Southern Missouri Waste
Management Dist., 890 F.Supp. 878 (D.S.D.
DI ..ccccesientitivntstentinitstininciltgiprticiahisinnasiabididitisiprstiaiieeiilinls 12
Yankton Sioux Tribe v. Southern Missouri Waste
Management Dist., 99 F.3d 14289 (8th Cir.
ES ee ee ee eS 2, 22
STATUTES:
Treaty of April 19, 1858, 11 Stat. 743 0... 27, 28
Act of March 3, 1891, 26 Stat. 1036 _... me 17
Act of April 11, 1892, 27 Stat. 1017 _....... 18
Act of August 15, 1894, ch. 290, 28 Stat. 286 ._... 15, 20, 27
Act of May 16, 1895, 29 Stat. 865... tabla tadiiditiiel 18
a a ee ey eee Oe ; 4
EE EE ee er oe 4,5
CONGRESSIONAL MATERIALS:
eX Lf ee ee 18
Jurisdiction on Indian Reservations—Part 2:
Hearing Before the Senate Select Committee on
Indian Affairs, 96th Cong., 2d Sess. (Aug. 11,
TT Le NET a ae oe 9
Jurisdiction—Part 3, Investigations and Prosecu-
tion of Federal Crimes on Indian Reservations:
Oversight Hearings Before the Committee on
or and Insular Affairs, 100th Cong., 2d
Sess. (1988) . 10
Investigation and Prosecution of Federal Crimes
on Indian Reservations: Hearings Before the
Committee on Interior and Insular Affairs,
House of Representatives, 101st Cong., Ist Sess.
CO id. iis ertnineintienlanniiniiniaiiiidinatiiasaceen teas) 10
H.R. Rep. No. 101-60, 101st Cong., Ist Sess.
I -cicecinisdhinencciintsiiieniaretscniiatiies tintapesndei EE laales 10
Hearing before the Committee on Indian Affairs,
S. Hrg. 104-694, 104th Cong., 2d Sess. (1994). 11
Vv
TABLE OF AUTHORITIES—Continued
OTHER AUTHORITIES:
EE TY Se
Brief for the United States as Amicus Curiae,
Mattz v. Arnett, 412 U.S. 481 (1973) (No. 71-
8 Ee ee ee a ee a See en a! CT ae
Brief for Respondent, DeCoteau v. District County
Court, 420 U.S. 425 (1975) (No. 73-1148).
Brief for the United States as Amicus Curiae,
DeCoteau v. District County Court, 420 U.S.
425 (1975) (No. 73-1148) .
Memorandum for the United ‘States 2 as | Amicus
Curiae, DeCoteau v. District County Court, 420
U.S. 425 (1975) (No. 73-1148) .
Memorandum for the United States as “Amicus
Curiae, Rosebud Sioux Tribe v. Kneip, 430 U.S.
584 (1977) (No. 75-562) .
Motion for Leave to File Brief and ‘Brief. Amici
Curiae of the National Congress of American
Indians, et al., Rosebud Sioux Tribe v. Kneip,
430 U.S. 584 (1977) (No. 75-562)...
Transcript of Oral Argument, Yankton Sioux
Tribe v. Southern Missouri Waste Management
Dist., 890 F.Supp. 878 (D.S.D. 1995) (94-CV-
4217) ..
Brief for the ‘United States z as ‘Amicus Curiae i in
Support of Plaintiffs-Appellees, Yankton Sioux
Tribe v. Southern Missouri Waste Dist., 99 F.3d
1439 (8th Cir. 1996) (No. 95-2647) .
Brief of Respondent, Southern Missouri Waste
Management District in Support of Petitioner,
State of South Dakota, South Dakota v. Yank-
ton Sioux Tribe, No. 96-1581 (April 28, 1997).
Brief of Respondent, Southern Missouri Waste
Management District in Support of Petitioner,
State of South Dakota, South Dakota v. Yank-
ton Sioux Tribe, No. 96-1581 (August 7, 1997)
Brief of Charles Mix County, South Dakota,
Amicus Curiae in Support of Petitioner, State
of South Dakota, South Dakota v. Yankton Sioux
Tribe, No. 96-1581 (August 7, 1997)
9,11
14, 15
24
vi
TABLE OF AUTHORITIES—Continued
Page
Brief for Duchesne County, Utah and Uintah
County, Utah, Amici Curiae in Support of Peti-
tioner, State of South Dakota, South Dakota v.
Yankton Sioux Tribe, No. 96-1581 (August 7,
RRS ERROR ROE ES, See 26
E. Peterson and L. Peterson, 1906 Atlas of Charles
Miz County, South Dakota (1906) 2,3
A. Gnirk, Epic of the Realm of Ree (1984) ............... 3, 6,8
A. Gnirk, Epic of the Great Exodus (1985) ............ 8
A. Gnirk, Epic of Papineau’s Domain (1986) ........ 3, 5, 6
1990 United States Comeus 2.20... o.oo. cceeceeeeeneeee 4, 5, 6,7
F. Prucha, The Challenge of Indian History,
Journal of the West, Jan. 1995... 13
Conference of Western Attorneys General, Ameri-
can Indian Law Deskbook (1993) —..................... 24
Constitution of the Yankton Sioux Tribe (1962) .. 22
Opinions of the Solicitor, Dep’t of the Interior,
M-27671 (March 1, 1984) ................................... 29
The cities of Dante, Geddes, Lake Andes, Pickstown,
Platte, Ravinia and Wagner, respectfully submit this brief
as amici curiae, in support of Petitioner pursuant to Su-
preme Court Rule 37(4).
INTEREST OF AMICI CITIES
The majority’s assertion that ‘Article XVIII of the
1894 statute indicated that as much of [the 1858]
treaty as possible was to be preserved,” Maj. Op. at
1448, is based neither on the text—which referred
only to annuities—nor the legislative history of the
1894 Act, and has at its source only, as best as I can
discern, a single-minded desire to avoid diminish-
ment at all costs.
Yankton Sioux Tribe v. Southern Missouri Waste Dist.,
99 F.3d 1439, 1462 (8th Cir. 1996) (J. Magill dissent-
ing). Pet. App. at 56 (emphasis added).
. Five of the amici cities, Wagner, Lake Andes, Ravinia,
Dante and Pickstown are located within the 1858 bound-
aries of the reservation recently declared to exist by the
court of appeals for the Eighth Circuit; two of the amici
towns, Geddes and Platte, lie close to the purported
boundaries. Each of the cities within the newly recog-
nized boundaries of the Yankton Sioux Reservation has
operated, since its founding a few years after the 1894
Surplus Land Act in question, as if no reservation bound-
aries exist. Each of the cities respectfully expresses its
profound shock to this Court over the decision of the
court of appeals. Importantly, we understand that this is
only the second time that any federal court of appeals has
ever held that a congressional act of this nature did not
disestablish the reservation area affected; the first and only
other case with a similar holding was promptly reversed
in DeCoteau v. District County Court, 420 U.S. 425
(1975). We respectfully request this Court to reverse
the decision of the court of appeals, a decision which
conflicts with both the prior and subsequent decisions of
the South Dakota Supreme Court, and resolve the conflict
and confusion created by the federal decision.
A. Early History.
Prior to the organization of Charles Mix County, South
Dakota, this area was visited and occupied by various
Indian tribes. E. Peterson and L. Peterson, 1906 Atlas
of Charles Mix County, South Dakota, 48 (1906).
at 48. The Ree were eventually driven out by the Oglala
Sioux branch of the Tetons, who, in turn, were partially
displaced by the Yankton Sioux in the early 1800's. /d.
at 48. “Few of the Indians, however, had made this part
of the state their principal place of abode as other locali-
ties seemed to them more desirable. This part of the state
was therefore used only as a hunting ground.”
By the mid-1800’s, the Charles Mix
rarely hunted by the Indians, “for large game had
better pastures farther west and north, and the
had gone with the game.” 7d. at 50. The Yankton
eventually settled the area pursuant to the treaty of
Id. at 48.
In the late 18th century and throughout the entire |
century a continual non-Indian presence was felt in the
area in the form of resident French trappers, explorers,
river traders, wood cutters and the U.S. Army,
influence culminated in 1857 with the completion of
Ft. Randall. /d. at 48.
In speaking of the history of Charles Mix county we
shall see that it is in no sense a “new” county. It
i
Tite
$
J
more white men before that time than any of the
“old” counties not having a Missouri river front.
Id. at 48.
The 1858 treaty with the Yankton Sioux established
the Yankton Sioux Reservation which consisted of ap-
proximately 430,000 acres in the eastern portion of what
is now Charles Mix County. The Yankton Sioux sett'ed
the reservation on July 10, 1859, a date commonly asso-
3
ciated with the restoration of all of Charles Mix County,
except the Yankton reserve, to the public domain. /d. at
49. Charles Mix County was created at the first territorial
legislature of Dakota by its act of May 8, 1862. /d. at
49. The Yankton Indian reservation was later incorpo-
rated into the county boundaries in 1873, although the
reservation continued to have “little or nothing to do with
county affairs and took no part in our community life
until after the treaty of 189/4].” Id. at 48.
In 1892, the government negotiated with the Yanktons
for the sale of their surplus lands, resulting in a treaty
signed by a majority of the Tribe and ratified by Congress
on August 15, 1894. Id. at 49. These lands were opened
to homesteading by the president’s proclamation of May
16, 1895 and were quickly populated. /d. at 49. By
early 1900, virtually all of the surplus lands had been
homesteaded. A. Gnirk, Epic of the Realm of Ree,
8 (1984). The population of Charles Mix County by
1900 was 8,498. 1906 Atlas of Charles Mix County,
South Dakota, supra, at 46.
B. City History.
Several of the cities which are amici here were created
along the Milwaukee Railroad through the “former Indian
lands from Napa to Platte,” South Dakota. A. Gnirk,
Epic of Papineau’'s Domain, 143 (1986). In fact, the
area of Charles Mix County which contains a majority of
the country’s towns was once part of the “Yankton Sioux
Reservation until 1895 when the land of eastern Charles
Mix County was thrown open to homesteaders.” Jd. at
143.
1. City of Wagner, South Dakota.
Wagner was created by the Milwaukee land company
in 1900, just six years after the 1894 Act which opened
the Yankton Reservation. Epic of the Realm of
Ree, supra, at 62. According to the 1990 Census,
Wagner's population was 1462, of whom 281 are Indian.
4
1990 Census of Population and Housing, Summary Popu-
lation and Housing Characteristics, South Dakota, at 33,
57. City and county records indicate that there are ap-
proximately 1510 properties within the city limits of
Wagner; approximately 1450 are owned by non-Indian
persons or entities, four are owned by the Yankton Sioux
Tribe, six are held in trust by the United States for an
Indian person, and fifty are owned in fee by individual
Indians.
The decision of the court of appeals would convert the
entirety of Wagner to “Indian country” pursuant to 18
U.S.C. §1151(a) by designating it as a reservation.
Paradoxically, even as this case was being litigated, an
Indian person failed in a claim that a housing develop-
ment in Wagner qualified as “Indian country” presumably
as a dependent Indian community under 18 U.S.C.
§ 1151(b). See Primeaux v. Lee, Memorandum Opinion
and Order, Civ. 94-9022 (D.S.D. 1995), aff'd per curiam,
Primeaux v. Lee, 74 F.3d 1243 (8th Cir. 1996). The
Defendant in that case failed even to make the claim that
the entirety of Wagner should be declared Indian country
as a “reservation;” the failure of the district court and
court of appeals to find the housing area to be Indian
country simply reaffirmed the long-held understanding of
all the residents of the area that Wagner was not “Indian
country” as a reservation pursuant to 18 U.S.C. § 1151(a)
or partly “Indian country” pursuant to 18 U.S.C. § 1151(b).
The residents of Wagner can also point to State v.
Winckler, 260 N.W.2d 356 (S.D. 1977), another case
which arose within Wagner and in which the South Da-
kota Supreme Court stated that it had “ruled that the
Yankton Indian reservation was disestablished. . . .”
Winckler, 260 N.W.2d at 360.
In addition, as recently as 1980, a unanimous court of
appeals was of the same opinion:
In our opinion, the district court correctly determined
that the crimes of grand larceny and burglary did not
5
occur in “Indian Country” as defined in 18 U.S.C.
§ 1151(b), so as to preclude state court jurisdic-
tion.” * The Supreme Court of South Dakota has
twice determined that the original Yankton Indian
Reservation had been diminished by an Act of Con-
gress. Wood v. Jameson, 81 S.D. 12, 130 N.W.2d
95, 99 (1964); State v. Williamson, 211 N.W.2d
182, 184 (S.D. 1973). Appellant does not challenge
these holdings in this appeal.
Weddell v. Meierhenry, 636 F.2d 211, 213 (8th Cir.
1980).
2. City of Lake Andes, South Dakota.
Lake Andes was established as a railroad siding stop
in 1900 and became a full-fledged town in 1904. Epic
of Papineau’s Domain, supra, at 143. Lake Andes was
named the Charles Mix County seat in 1916 and remains
the county seat to date. Jd. at 143. Lake Andes submits
the unlikelihood of the residents of Charles Mix County
selecting a town within a “reservation” to be a county
seat, when only half the county is within the purported
boundaries. In any event, according to the 1990 Census,
the population of Lake Andes was 846 persons, of whom
246 were Indians. 1990 United States Census, supra, at 33.
City and county records indicate that there are approxi-
mately 1060 properties within the city limits of which
approximately 998 are owned by non-Indians or non-
Indian entities, two of which are owned by the Tribe, eight
are held in trust by the United States for an individual
Indian, two are owned by the Native American Women’s
Resource Center and fifty are owned in fee by individual
Indian persons.
Most of the county offices or headquarters are located
in Lake Andes, as are various state offices. The Charles
Mix County Law Enforcement Center is located in Lake
Andes and provides services to the entire county and
surrounding area. The city provides drinking water to all
the Yankton Sioux tribal housing units within Lake Andes
6
and to the approximately 70 housing units in the Yankton
Sioux Tribe housing units southeast of Lake Andes. The
city itself maintains twenty-four separate housing units,
through its city housing authority; many or most of these
units are occupied by Indian persons. Like Wagner, Lake
Andes can point to specific judicial authority which as-
sured it, had there been any doubt, that the reservation
had long been disestablished. In Wood v. Jameson, 130
N.W.2d 95 (S.D. 1964), the South Dakota Supreme
Court held that it was the purpose of the 1892 agreement
and 1894 Act of Congress “to disestablish the reserva-
tion... .” Id. at 99.
3. Town of Ravinia, South Dakota.
The town of Ravinia was also created as a railroad
stop in 1909. Epic of the Realm of Ree, supra, at
157. The 1990 Census sets the population of Ravinia
at 79, 34 of whom are Indian. Of the 185 proper-
erties within its boundaries, approximately 182 are held
by non-Indians and non-Indian entities and three are held
in trust by the United States for an Indian person.
4. Town of Dante, South Dakota.
Dante was likewise founded as a railroad stop. Accord-
ing to the 1990 Census, its population is 98, of whom 12
are Indian. City and county records indicate that approxi-
mately 185 properties exist within its boundaries; no
properties are owned by the Tribe, individual Indians, or
by the United States in trust.
5. Town of Pickstown, South Dakota.
Pickstown, like each of the towns identified above, now
finds itself within the purported boundaries of the Yankton
Sioux reservation. Pickstown was created in 1947 by
the United States Army Corps of Engineers to accom-
modate construction workers and their families while
working on the Fort Randall Dam. Epic of Papineau's
Domain, supra, at 527. Pickstown was released from its
7
federal domination in 1986 and the properties were sold,
ceded or relinquished to its residents. According to the
1990 Census, its population was 95, of whom 6 were
Indian. The official records of the city indicate there are
approximately 190 properties within the city limits; 186
are owned by non-Indians or non-Indian entities and four
are owned by Indians. There are no properties owned
by the Yankton Sioux Tribe or held in trust by the
United States government.
C. Demographics and the Surrounding Area.
Generally speaking, the demography of the situation
in the entire area parallels the area under consideration
in DeCoteau v. District County Court, 420 U.S. 425
(1975). Keeping in mind that in this litigation the con-
tested area, as in DeCoteau, involves essentially the non-
Indian fee lands, only one other point need be specially
noted. In DeCoteau, approximately 90% of the tribal
members were said to actually reside on trust lands (in
HUD community housing projects and other individual
homes). Brief for Respondent at 196, DeCoteau v. Dis-
trict County Court, 420 U.S. 425 (1975) (No. 73-1148).
In this 1858 Yankton reservation area, that percentage
is apparently somewhat less, though a clear majority of
the Yankton tribal members are similarly situated. And
while the trust allotments of the members do constitute
approximately 10% of the total land base, only a small
fraction of that area is actually resided upon or farmed by
members of the Yankton Sioux Tribe. Again, this fact
situation parallels that presented in DeCoteau. Id.
The five cities above, all of which find themselves
within the 1858 boundaries of the Yankton reservation,
are joined in this amici brief by two sister cities, Geddes
and Platte. Geddes is located approximately fifteen miles
northwest of Lake Andes, or one mile west of the eastern
1858 boundary. Platte was established in 1900 as the
last city on the railroad line running west in Charles Mix
County. A. Gnirk, Epic of the Great Exodus, 92 (1985).
Both cities are demographically similar to those noted
above.’
D. Conflicts and Confusion.
Each of the amici cities within the 1858 boundaries has
experienced immediate dramatic adverse impacts as a
result of the decisions of the district court and court of
appeals, despite the subsequent decision of the South
Dakota Supreme Court. Problems involving law enforce-
ment, zoning, landlord-tenant, provision of utilities, and
foreciosures, all difficult in the best of situations, have —
become permeated with uncertainty. Local officials can-
not reliably and finally say that state, or federal law
actually applies to a diverse variety of situations which
occur on the non-Indian lands within the 1858 boundaries
and within their cities. The uncertainty provides an addi-
tional means by which those who wish to evade the law
can do so and provides a similar haven to those who
commit civil wrongs against their neighbors.
The jurisdictional uncertainty referred to above has
been exacerbated by the failure of the federal authorities
1 Although not included as amici, two additional towns in Charles
Mix County which were not created or established due to the rail-
road were Marty and Greenwood. Marty was founded in 1913 and
is located 10 miles south of Ravinia and 13 miles southwest of
Wagner and was named for the Rt. Rev. Martin Marty, a pioneer
Catholic bishop in South Dakota. Epic of the Realm of Ree,
supra, at 12,186. The town of Marty is, perhaps, best known
for the mission and Indian school located there. Jd. at 196.
According to official county records, all of the land within the
boundaries of Marty is held in trust by the United States govern-
ment for the benefit of an Indian person or is owned by an
individual Indian person. According to the 1990 census, the popula-
tion of Marty was 436 persons, 412 of which were Indian persons.
The town of Greenwood is located approximately 5 miles south-
east of Marty and was first established as an Indian agency. All
of the property located within the boundaries of Greenwood is
held in trust by the United States government for individual Indian
persons.
9
to provide adequate resources to meet the responsibilities
they now claim as a result of the federal decision. Prior
to the decision of the courts below, all law enforcement
activities on non-Indian lands were provided locally
through a centrally located county law enforcement
center; a full-time sheriff, with three full-time deputies and
two part-time deputies; and supplemented by local police
departments with six full-time officers and two part-time
officers. The State circuit court is located in the Charles
Mix County courthouse in Lake Andes, South Dakota.
After the decisions, the United States claims that it has
jurisdiction of felony investigations involving Native
American suspects or Native American victims, but it has
provided only one FBI agent based over one hundred
miles outside the county in Sioux Falls, South Dakota.
The federal court is also located there. Further, the FBI
agent’s duties are not limited to investigations within the
1858 boundaries; rather, the additional investigations
were simply added to the agent’s already heavy urban
case load. The United States Attorney’s Office has not
provided additional staff to handle the cases it now
claims.* Further, despite its new assertion of jurisdiction,
the federal authorities have no plans at present to base
any FBI locally, to the cities’ knowledge. The result is
clearly a decline in effective law enforcement.* The crimi-
2 The tribal chairman indicated at trial that he intended that the
United States would greatly expand its criminal law jurisdiction
if the Tribe were successful in this litigation. Tr. at 330-331.
Yankton Sioux v. Southern Missouri, 890 F.Supp. 878 (D.S.D.
1995) (94-CV-4217). He admitted, however, that he had not dis-
cussed the increased jurisdiction with the U.S. Attorney nor did he
know the position of the U.S. Attorney on the matter. /d. at 331.
(The cities suggest that the United States was just as shocked by
the decisions below finding the 1858 boundaries intact as were the
amici cities.)
8 The present situation is not surprising, for even when reserva-
tion status is not apparently at issue, reservation law enforcement
is generally regarded as ineffective, especially with regard to the
“most common crimes.” See, e.g., Jurisdiction on Indian Reserva-
10
nal law problem, however, presents more than the difficul-
ties attendant to a decline in effective law enforcement.
The most critical problem is that, without intervention by
this Court, there is no solution to the controversy over
which entity actually has jurisdiction of the crimes now
being committed. Numerous habeas corpus petitions are
already ongoing and will continue to challenge the juris-
diction of courts which have in the past or might in the
future take jurisdiction of a now disputed criminal case.
Uncertainty thus permeates the criminal law, as well as
the civil law sphere, within the amici cities.
tions—-Part 2: Hearing Before the Senate Select Committce on
Indian Affairs, 96th Cong., 2d Sess. at 24 (Aug. 11, 1980) (herein-
after Jurisdiction—Part 2): “The most common crimes, such as
assaults or small burglaries, simply are not prosecuted in the vast
majority of instances.” (comment of Caleb Shields, Ft. Peek Tribal
Executive Board); Jd. at 66 (comment of Senator Melcher reveal-
ing complaints of state judges that federal authorities do not prose-
cute even major crimes) ; Jd. at 32 (comment of local chief of police
that only one of ten “felony-type” theft, burglary or assault cases
are prosecuted on the reservation) ; Jd. at 26 (United States Magis-
trate’s comment on infrequency of prosecution of reservation
assaults). Similar testimony was received approximately a decade
later. See, e.g., Investigation and Prosecution of Federal Crimes
on Indian Reservations: Hearings Before the Committee on Interior
and Insular Affairs, House of Representatives, 101st Cong., Ist Sess.
at 187 (1983): “[O]nly the most aggregious [sic] and clear-cut
cases can properly be pursued.” (comment of Tribal Chairman
Ketachezan); /d. at 281: “[Wle see an awful lot of people who
probably should be prosecuted for different things just simply slip
through because no one is quite sure who is in charge.” (comment
of Representative Campbell) ; See also H.R. Rep. No. 101-60, 101st
Cong., Ist Sess. at 7 (1989). In addition, legislators in both the
1980 and 1989 hearings drew attention to the fact that reservation
law enforcement let cases “fall through the cracks.” See Jurisdic-
tion—Part 2, supra, at 21 (comment of Senator Melcher); /nvesti-
gations and Prosecution of Federal Crimes on Indian Reservations:
Oversight Hearings Before the Committee on Interior and Insular
Affairs, 100th Cong., 2d Sess. 249 (1988); Prosecution of Federal
Crimes, supra, at 249: “Case-by-case determination can lead to a
cumbersome, inefficient process which ultimately leads to cases fall-
ing through the cracks.” (comment of Representative Tim Johnson.)
11
We note further, that, at trial, the tribal chairman was
equivocal as to whether the Tribe intended to exercise
jurisdiction over non-Indians on non-Indian lands, assum-
ing that it was successful in the litigation. See, e.g., Tr.
at 322-334, Yankton Sioux v. Southern Missouri, 890
F.Supp. 878 (D.S.D. 1995) (94-CV-4217). Nonetheless,
since the Tribe has been successful in the federal litiga-
tion, it has made it very clear to local city officials, in
conferences and otherwise, that the Tribe wil! attempt to
regulate non-Indian hunting and fishing on non-Indian
lands, will establish licensing procedures with regard to
non-Indians, and will attempt to regulate access to state
and federal facilities and lands by non-Indians, particu-
larly those on the Missouri River. The Tribe has not
exercised such jurisdiction at least since amici towns were
founded in the early 1900's, and the Tribe thus promises
to radically alter the status quo.
The residents of Charles Mix County are, by and large,
highly informed as to cases being litigated in other parts
of the nation regarding tribal issues. Aberrant tribal court
outcomes such as that appealed in Burlington Northern
R.R. v. Red Wolf, 106 F.3d 868 (9th Cir. 1997) are
tremendously unsettling to the non-Indian residents. Fur-
ther, the inevitability of extensive and burdensome litiga-
tion over tribal regulation and control of non-Indian
interests, as detailed above, has caused land owners to
suspect that a further and significant decrease in property
values is likely in the event the court of appeals decision
is not reversed.*
*One recent witness at a Senate Indian Affairs Committee hear-
ing, a rancher on South Dakota's Cheyenne River Sioux Reserva-
tion, testified that it was his opinion that the prices of property on
that reservation “are regularly discounted about 25 percent. These
facts make it difficult for non-Indians to either stay or leave.”
Tribal Sovereign Immunity: Hearing before the Committee on
Indian Affairs, S. Hrg. 104-694, 104th Cong., 2d Sess. at 45. The
recent experience of amici towns has led them to surmise that the
loss in property value identified in the Senate Hearing will most
12
SUMMARY OF ARGUMENT
The court of appeals failed to apply the precedent of
DeCoteau in this case. A cursory review of the DeCoteau
decision and the 1891 Sisseton-Wahpeton agreement
demonstrates that the 1891 agreement is, in fact, the
functional twin of the 1894 Yankton agreement. The
provisions and formats in both agreements are virtually
identical. In addition, the congressional representatives
and other participants in the process specifically made the
comparisons and relied upon the earlier Sisseton-Wahpe-
ton agreement as precedent. The demographics and the
subsequent jurisdictional histories of the two areas are
also remarkably similar. In two respects, the Yankton
documentation presents even stronger factors for dis-
establishment.
This Court’s precedent in Rosebud Sioux Tribe v.
Kniep, 430 U.S. 584 (1977) indicates that this type of
analysis should have at least been considered by the court
of appeals. See also Oregon Fish and Wildlife Dept. v.
Klamath Tribe, 473 U.S. 753 (1985). It was not. The
decision of the court of appeals should be reversed by this
Court
probably be replicated within the 1858 boundaries, should the deci-
sion of the court of appeals remain unreversed.
13
ARGUMENT
FATHER PRUCHA: “THE GAP IS WIDENING,
| FEAR, BETWEEN SOLID HISTORICAL AC-
COUNTS AND THE PSEUDO-HISTORICAL OR
MYTHICAL ACCOUNTS ADOPTED AND PRO-
CLAIMED BY MANY INDIANS AND THEIR
WHITE ADVOCATES.”
Francis Paul Prucha, The Challenge of Indian History,
Journal of the West, Jan. 1995, at 3.
I.
THE AGREEMENT IN THE YANATON CASE NOW
BEFORE THIS COURT IS THE “FUNCTIONAL
TWIN” OF THE AGREEMENT AT ISSUE IN
DECOTEAU v. DISTRICT COUNTY COURT, AND
THEREFORE THIS COURT SHOULD REVERSE
ON THE BASIS OF DECOTEAU.
Construing Article XVIII in the sweeping manner
defendant advocates ignores the remainder of the
Act. Such a result would be an extravagant misuse
of the canons of statutory construction to salve
modern sensibilities, especially given that the lan-
guage in Articles I and II is so “precisely suited” to
diminishment. Courts should not presume Congress
intended an “absurd result.” . . . To give Article
XVIII pointed emphasis allows it to negate the pre-
ceding seventeen articles, and that is a result con-
trary to the plain meaning of the rest of the
Agreement.
State v. Greger, 559 N.W.2d 854, 865 (S.D. 1997)
(citation omitted) (emphasis added).
Not only did the court of appeals spurn the bright-line
“presumption” articulated in Solem v. Bartlett, 465 U.S.
463 (1984) and Hagen v. Utah, 510 U.S. 399 (1994),
the court also failed to apply the precedent of DeCoteau
v. District County Court, 420 U.S. 425 (1975). In
DeCoteau, this Court considered an agreement of the
United States with the Sisseton-Wahpeton Sioux Tribe
1+
which resulted in disestablishment. The Yankton Agree-
ment of three years later is the “functional twin” of the
Sisseton Agreement and DeCoteau therefore strongly sug-
gests a finding of disestablishment in the Yankton case.
The term “functional twin” was by the Court
in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 609
(1977), and denoted the identity, except for the “opera-
tive language” of the Agreements, of a 1907 Agreement
and an earlier 1904 Agreement. Because the Agreements
constituted “functional twins,” except for the critical “op-
erative” language, the Court found the later Agreement
(which lacked cession language) accomplished disestab-
lishment, just as the earlier agreement had accomplished
disestablishment. Jd. As we demonstrate below, the
origin, content, and outcome of the Sisseton and Yankton
agreements make them even better “functional twins”
than the agreements at issue in Rosebud. See also
Oregon, 473 U.S. 753.
This argument takes on special importance for the
residents of the amici cities because of the proximity of
the former Sisseton reservation at issue in DeCoteau
(roughly 150 miles northeast of the amici cities) and be-
cause the agreements and local histories of the two areas
were known to be so similar. Amici cities and their
residents could and legitimately did, we respectfully sub-
mit, continue to assume that no reservation existed at
Yankton based on DeCoteau and the legal and factual
similarities between the two situations.
Summarily, in every respect even arguably significant,
the Yankton documents mirror and reflect the same
terminology, discussions, considerations, policies, and gen-
eralities presented in DeCoteau. The Yankton Commis-
sioners even repeatedly referred specifically to the terms
of the Sisseton Agreement. Br. of Resp’t District in Supp.
of Pet'r at 18-19. See also, South Dakota Representative
Pickler’s remarks in the congressional record (“same
kind of a treaty we have always made”. . . “procure these
15
lands in the same way”. . . “we make no departure from
our past policy” ... “just as all other cessions of
land” .. .). Id. at 36-37. As a result, in both instances
the Commissioner of Indian Affairs and the Secretary of
the Interior also acknowledged that both reservations were
“restored to the public domain.” /d. at 9. See generally
Hagen, 510 U.S. at 412-414 (public domain).
In this light, we submit that the “functional twin”
characteristics of the two situations do, in fact, demon-
strate that this Court’s decision in DeCoteau should dis-
pose of this case.
I.
FACTORS DEMONSTRATING THE YANKTON
AND SISSETON AGREEMENTS ARE FUNC-
TIONAL TWINS.
SISSETON
DISESTABLISHMENT
Time period equivalent
Agreement approved 1891.
DeCoteau, 420 U.S. at 427.
Allotment of substantial terri-
tory under General Allotment
Act.
DeCoteau, 420 U.S. at 455.
Interior Instructions to Commis-
sioners
“The treaty makes no provi-
sion regarding the cession or
relinquishment of the reserva-
tion or any portion thereof.”
“The terms and conditions
agreed upon in Council, with the
description of the lands to be
relinquished, should be reduced
to writing and incorporated in
the accompanying form of agree-
ment, which should be signed by
at least a majority of the male
adults of the bands.” Cities App.
at 2a.
YANKTON
DISESTABLISHMENT
Time period equivalent
Agreement approved 1894.
28 Stat. 286 (1894).
Allotment of substantial terri-
tory under General Allotment
Act.
Exhibit 605, at 5.
Interior Instructions to Commis-
stoners
“The treaty makes no provi-
sion regarding the cession or
relinquishment of the reserva-
tion or any portion thereof.”
“The terms and conditions
agreed upon in council should be
reduced to writing and incorpo-
rated in the accompanying form
of agreement which should be
signed by at least a majority of
the male adults of the members
of the tribe.” Br. Resp. in Sup-
port of Pet. at 50a.
16
Preambles equivalent.
The Sisseton Indians “are desir-
ous of disposing of a portion of
the land set aside and reserved
to them. .. .” DeCoteau, 420
U.S. at 455.
Cession language used.
“The Sisseton and Wahpeton
Bands of Dakota or Sioux In-
dians hereby cede, sell, relin-
quish, and convey to the United
States all their claim, right, title
and interest... .” Art. 1, cited
at DeCoteau, 420 U.S. 456.
All unallotted lands ceded.
Cession pertains to “all the un-
allotted lands within the limits
of the reservation set apart to
said bands of Indians as afore-
said remaining after the allot-
ments and additional allotments
provided for in article four of
this agreement... .” Art. 1,
DeCoteau, 420 U.S. at 466.
Sum Certain Language Used.
Sesseton Agreement provides
“(i}n consideration for the lands
ceded, sold, relinquished and con-
veyed .. . the United States stip-
ulates and agrees to pay .. . the
sum of two dollars and fifty
cents per acre for each and every
acre thereof... .” Art. 2, De-
Coteau, 420 U.S. at 456.
Entry subject to homestead and
townsite laws.
“That the lands by said agree-
ment ceded, sold, relinquished,
and conveyed to the United
States shall . . . be subject only
to entry and settlement under
the homestead and town-site
Preambles equivalent.
“The Yankton Tribe . . . is will-
ing to dispose of a portion of
land set aside and reserved to
said Tribe... .” Pet. App. at
112.
Cession language used.
“The Yankton Tribe of Dakota
or Sioux Indians hereby cede
sell, relinquish, and convey to
the United States all their claim,
right, title, and interest... .”
Art. I, Pet. App. at 112-113.
All unallotted lands ceded.
Cession pertains to “all the un-
allotted lands within the limits
of the reservation set apart to
said Indians as aforesaid.” Art.
I, Pet. App. at 112-113.
Sum Certain Language Used.
Yankton agreement provides
“(ijn consideration for the lands
ceded, sold, relinquished, and
conveyed to the United States
... the United States stipulates
and agrees to pay .. . the sum of
six hundred thousand dollars.
...” Art. II, Pet. App. at 113.
Entry subject to homestead and
townsite laws.
“That the lands by said agree-
ment ceded, to the United States
shall, upon proclamation by the
President, be opened to settle-
ment, and shall be subject to
disposal only under the home-
laws of the United States. . .”
Act of Mar. 3, 1891, 26 Stat.
1036.
Missionaries allowed to purchase
lands.
Art. 2, DeCoteau, 420 U.S. at
457.
School lands granted to State
with public domain premise.
(“excepting the sixteenth and
thirty-sixth sections of said
lands, which shall be reserved
for common school purposes, and
be subject to the laws of the
State”). DeCoteau, 420 U.S. at
442. For public domain premise,
see Cities App. at 4a-6a.
United States retained an agency
and schools.
DeCoteau, 420 U.S. at 435 n.16;
id. at 438 n.19.
Lands retained were scattered
about the former reservation.
DeCoteau, 420 U.S. at 428.
The proclamation opening the
reservation referred to a con-
veyance of “all their title and
interest” and quoted the cession
language of the Act.
“[Algreement made with said
Indians residing on said reserva-
tion, dated December 12, 1889,
they conveyed, as set forth in
article one thereof, to the United
States, all their title and interest
in and to all the unallotted lands
within the limits of the reserva-
tion set apart as aforesaid re-
maining after the allotments
shall have been made... it is
provided in the act of Congress
approved March 3, 1891 (26
17
stead and town-site laws of the
United States..." Pet. App. at
123.
Missionaries allowed to purchase
lands
Art. X, Pet. App. at 117.
School lands granted to State
with public domain premise.
(“excepting the sixteenth and
thirty-sixth sections in each
Congressional township, which
shall be common-school purposes
and be subject to the laws of the
State of South Dakota”). Pet.
App. at 123. For public domain
premise, see Cities App. at 4a-6a.
United States retained an agency
and schools.
Pet. App. at 116.
Lands retained were scattered
about the former reservation.
Pet. App. at 159.
The proclamation opening the
reservation referred to a con-
veyance of “all their claim, title
and interest” and repeated the
cession language of the Act.
“(Sjaid Yankton tribe of Sioux
or Dacotah Indians for the con-
sideration therein mentioned,
ceded, sold, relinquished, and
conveyed to the United States,
all their claim, right, title and
interest in and to all the un-
allotted lands within the limits
of the reservation set apart to
said tribe. . . Whereas, it is
provided in the act of Congress
accepting, ratifying and confirm-
ing the said agreement approved
U.S. Statutes, pp. 1036-1038, Sec.
30), accepting and ratifying the
agreement with said Indians:
‘That the lands by said agree-
ment ceded, sold, relinquished,
and conveyed to the United
States shall immediately, upon
the payment to the parties en-
titled thereto of their share of
the funds made immediately
available by this act, and upon
the completion of the allotments
as provided for in said agree-
ment, be subject only to entry
and settlement under the home-
stead and townsite laws of the
United States’”.... Cities App.
at 7a-8a.
The proclamation opening the
reservation referred to a “‘sched-
ule of lands within the ...
reservation ....”
27 Stat. 1017, 1018 (April 11,
1892).
Congress clearly intended to re-
turn the land to the public
domain.
DeCsteax, 420 U.S. at 440-441.
State assumed virtually unques-
tioned jurisdiction.
DeCoteau, 420 U.S. at 442.
Sisseton and Yankton generally
treated in parallel fashion on
maps.
Exhibit 33 (1889) (showing
both reservations; Exhibit 620
(1901) (eliminates both Yank-
ton and Sisseton reservations) ;
Exhibit 621 (1910) (eliminates
both reservations); Exhibit 44
18
August 15, 1894, section 12
(Pamphlet Statutes 53d Con-
gress, 2d session, pages 314 to
319), “That the lands by said
agreement ceded, to the United
States shall, upon proclamation
by the President, be opened to
settlement, and shall be subject
to disposal only under the home-
stead and town-site laws of the
United States’”.... JA at 453.
The proclamation opening the
reservation referred to a “sched-
ule of lands within the ...
reservation ... .”
29 Stat. 865, 866 (May 16, 1895).
Congress clearly intended to re-
turn the land to the public
domain.
26 Cong. Rec. 6425 (1894); id.
at 6426.
State assumed virtually unques-
tioned jurisdiction.
Pet. App. at 38; Dissent, Pet.
App. at 62; Greger, Pet. App. at
154-155.
Sisseton and Yankton generally
treated in parallel fashion on
maps.
Exhibit 33 (1889) (showing
both reservations; Exhibit 620
(1901) (eliminates both Yank-
ton and Sisseton reservations) ;
Exhibit 621 (1910) (eliminates
both reservations); Exhibit 44
19
(1909) (BIA both Sisseton and (1909) (BIA both Sisseton and
Yankton as blank). Yankton as blank).
As noted above, in Rosebud, the Court found a 1907
Act to diminish the Rosebud reservation the same as the
1904 Act even though the 1904 Act had contained lan-
guage of cession and the 1907 Act had not contained
language of cession. This Court found that “as the legisla-
tive comments make clear . . . the change in § | language
was not intended to modify or change the purposes or
operation of the 1904 Act.” Rosebud, 430 U.S. at 609.
Rosebud thus strongly indicated that when identical lan-
guage is used, identical results are intended. This was
so, in the case of Rosebud, even when the operative lan-
guage was different and when the “cession language” was
eliminated, because the legislative comments made clear
that no change from the earlier Act was intended.
In this instance, as Charles Mix County has noted,
even the United States has described the Sisseton Agree-
ment as “a similar and contemporaneous cession agree-
ment” containing “the same language.” Brief of Charles
Mix County, South Dakota, Amicus Curiae in Support
of Petitioner, State of South Dakota at 25-26 (citing BUS,
Co. Pet. App. at 166a).
There are a few differences between the agreements.
Both agreements, however, contain the critical cession
and sum certain language as “operative language.” See
Hagen, 510 U.S. at 412-416. Several of the changes from
the Sisseton to the Yankton agreement, moreover, make
the Yankton agreement even a stronger argument for
disestablishment than the Sisseton agreement.
20
Il.
ADDITIONAL PROVISIONS IN THE YANKTON
AGREEMENT AND FACTORS IN THE SUBSE-.
QUENT HISTORY OF THE YANKTON SIOUX
TRIBAL GOVERNMENT MAKE THE YANKTON
ARGUMENT FOR DISESTABLISHMENT EVEN
STRONGER. |
The liquor provision and its history are of special im-
portance, for the Yankton Act contained this provision
while the Sisseton Act did not. Article XVII of the 1894
Yankton Act provided that intoxicating liquor could not
be sold upon reservation lands after they were ceded and
opened to settlement:
No intoxicating liquors nor other intoxicants shall
ever be sold or given away upon any of the lands by
this agreement ceded and sold to the United States,
nor upon any other lands within or comprising the
reservations of the Yankton Sioux or Dakota Indians
as described in the treaty between the said Indians
and the United States, dated April 19th, 1858, and
as afterwards surveyed and set off to the said Indians.
The penalty for the violation of this provision shall
be such as Congress may prescribe in the act ratify-
ing this agreement.
Act of August 15, 1894, ch. 290, 28 Stat. 286, 318; Pet.
App. at 120.
Thus, federal liquor laws applied on lands, “as de-
scribed in the treaty between the said Indians and the
United States, dated April 19th, 1858... .” Jd. This
provision would be surplusage if the reservation were not
diminished by the Act of 1894, as intoxicants were
already forbidden in “Indian country” by federal law.
Perrin v. United States, 232 U.S. 478, 484 (1914). Fur-
thermore, this Court has said, of a provision in the 1910
Act concerning the Rosebud Sioux Reservation, that:
the most reasonable inference from the inclusion of
this [liquor prohibition] provision is that Congress
was aware that the opened, unallotted areas would
21
henceforth not be “Indian country” because not in
the Reservation.
Rosebud, 430 U.S. at 613. See also id. at n.47.
The legislative history of Article XVII in the Yankton
Act also supports this proposition. According to the 1893
Commissioner of Indian Affairs Report to Congress on
the Yankton Agreement:
Article XVII, prohibiting the sale or disposition of
intoxicants upon any of the lands now within the
Yankton reservation, seems to be a desirable pro-
vision, and from the decision of the Supreme Court
in United States v. 43 Gallons of Whiskey (93 U.S.
188), the stipulation would appear to be valid if
ratified by the United States.
Exh. 605, Pet. App. at 15. The passage implies diminish-
ment in that it referred in 1893 to lands “now withifi the
Yankton Reservation. . . .” Thus, before the Yankton
agreement was ratified by Congress in 1894, the Commis-
sioner looked to a time when the lands would not be
“within the Yankton Reservation.”
Further significance is found in the citation of United
States v. Forty-three Gallons of Whiskey, 93 U.S. 188
(1876). In that case, the Court held that Congress may
prohibit liquor not only within “Indian country,” but also
within a “territory in proximity to that where the Indians
live.” Id. at 195. The citation of this case by the Com-
missioner of Indian Affairs indicates that he believed that
the ceded lands would no longer be part of a reservation
but that this Court’s decision in Forty-Three Gallons of
Whiskey would nonetheless permit the liquor prohibi-
tion of Article XVII.
A further salient distinction, demonstrating that a case
for disestablishment of Yankton is even stronger than at
Sisseton, is found in the tribal constitutions. In 1946. the
tribal constitution at Sisseton claimed jurisdiction only as
to:
22
Indian owned lands \ying within the territory within
the original confines of the Sisseton-Wahpeton Lake
Traverse Sioux Reservation.
DeCoteau, 420 U.S. at 443 (quoting Article 1 of the
October 16, 1946, Constitution) (emphasis added). In
1966, three years after the court of appeals had found
the 1891 Act terminated the Sisseton Reservation, the
Commissioner of Indian Affairs approved a new constitu-
tion which provided that the jurisdiction of the Tribe shall
“extend to lands lying in the territory within the original
confines of the Lake Traverse Reservation. .. .” Jd. (quot-
ing the 1966 Constitution). Thus, by 1966, the Sisseton
Tribe claimed reservation boundaries in its constitution.
The constitutions at Yankton, however, have never
claimed such boundaries. According to the 1962 Consti-
tution of the Yankton Sioux Tribe, a Constitution which
remains in effect to this day:
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.
J.A. at 493 (emphasis added). The Yankton Constitu-
tion has never been amended to claim tribal boundaries.
Thus, in coming before this Court, the Yankton Sioux
Tribe cannot assert a tribal constitutional claim to reser-
vation boundaries. It would, moreover, be highly anom-
alous to allow a tribe to succeed on a claim of boundaries
in this Court when it had not even made that claim in
its own constitution. In this respect also, the Yankton
situation presents a stronger and more persuasive case for
disestablishment than did the Sisseton case.
The Tribe’s attempt to distinguish the two agreements
is derived mainly from the Section XVIII savings section.
As the Dissent below pointed out, however, there is noth-
ing in the record which supports the contention that the
savings section was to preserve the boundaries of
the reservation. Yankt@™ Sioux v. Southern Missouri, 99
23
F.3d 1439 (8th Cir. 1996); Pet. App. at 54-56. Further-
more, the savings section is itself internally ambiguous in
_ providing both for the preservation of all provisions of the
1858 agreement and the annuity provisions of the 1858
agreement. /d.
In Rosebud, the 1907 Agreement was the “functional
twin” of a 1904 Agreement even though the 1907 Agree-
ment lacked the “operative language” of “cession.” Here,
the Yankton agreement and the Sisseton agreement both
contain the critical “cession and sum certain” language,
and numerous other indicia that they should be treated
equivalently. Furthermore, the Yankton agreement is in
certain respects stronger than the Sisseton agreement with
regard to disestablishment. Given this situation, the Rose-
bud “functional twin” analysis strongly suggests a finding
that the Yankton reservation, like the Sisseton reserva-
tion, has been disestablished.
IV.
HISTORICAL DOCUMENTATION CONFIRMS
THAT THE NEGOTIATORS AND THE YANKTON
INDIANS EQUATED THE SISSETON-WAHPETON
AGREEMENT WITH THE YANKTON AGREE-
MENT.
With this background, it is not surprising that the nego-
tiators and Indians at Yankton both equated the Sisseton
agreement signed in 1889 with the Yankton agreement
signed in 1892. For example, Commissioner Cole said
during the Yankton negotiations:
The Commissioners are now ready to make you an
offer for your surplus lands .... It is more than
the Government paid for the Sisseton reservation
and it is the highest price we have ever known the
Government to offer.
Exhibit 605, at 80. Tribal member John Cole also said
that “[t]he Sisseton Reservation was purchased by the
government at $2.50 per acre.” /d. at 77. Henry Selwyn
24
linked the 1892 Yankton agreement with both the Treaty
of 1858 by which the Yankton reservation had been
diminished and the transaction by which the Sisseton
Indians had sold their lands. He stated:
I will now refer to the treaty of 1858. This is the
second time we sold land to the Government. I think
they should be very grateful to us for selling our
land. . . . If the Sissetons and Titowan had sold
their land at the same prices at which we sold ours
in 1858 per acre they would have given the Govern-
ment their lands for nothing.
Id. at 63. The identity of the two agreements makes it
logical that the Yankton Indians should perceive the Sisse-
ton agreement as equivalent to theirs. It confirms that the
two agreements are, in fact, “functional twins.”
Vv.
SECONDARY SOURCES SHOULD ALWAYS BE
CAREFULLY SCRUTINIZED.
The Cities are aware of the fact that Felix Cohen’s
Handbook of Federal Indian Law generally and directly
supports the Yankton disestablishment argument, as do
the subsequent revisions of that text. The Brief for
Southern Missouri makes that point. Brief for Southern
Missouri at 44. In this instance, this fact is all the
more remarkable in light of another consideration. Namely,
it has been generally observed that the original Cohen
text (and the subsequent revisions) have been viewed by
some as tribal advocacy works. See Conference of West-
ern Attorneys General, American Indian Law Deskbook
at xiii-xv (1993).
Nevertheless, in DeCoteau, Rosebud, and Hagen, the
analysis of this Court was not based upon secondary
sources of this nature. In fact, some of the authors, edi-
tors and contributing writers involved in the revised edi-
tion of the Handbook of Federal Indian Law have indi-
vidually submitted arguments in categorical opposition to
25
diminishment/disestablishment positions. See, e.g., Brief
for the United States as Amicus Curiae, Mattz v. Arnett,
412 U.S. 481 (1973) (No. 71-1182); Brief for the
United States as Amicus Curiae, and Memorandum for the
United States as Amicus Curiae, DeCoteau, 420 US.
425 (1975) (No. 73-1148); and Memorandum for the
United States as Amicus Curiae and Motion for Leave to
File Brief, and Brief Amici Curiae of the National Con-
gress of American Indians, et al., Rosebud Sioux Tribe,
430 U.S. 584 (1977) (No. 75-562), submitted in cases
where such views have been rejected by this Court. In
the final analysis, the support for the Yankton disestablish-
ment argument in this type of text, only demonstrates the
strength of the Yankton documents.
VI.
THE NEW POST-HAGEN POSITION OF THE
UNITED STATES PROMISES NIGHTMARISH
CONSEQUENCES AND IS COMPLETELY UN-
TENABLE.
As Charles Mix County has noted, another generic
argument that the United States has endorsed and sub-
mitted in litigation of this kind promises even more un-
settling consequences than the simple reversal of the
position of the United States in regard to the 1894 Yank-
ton cession statute. The new argument of the United
States, submitted subsequent to Hagen in the Tenth Cir-
cuit and now in the Eighth Circuit Court of Appeals,
summarily undermines the effect of all disestablishment
precedent on reservation boundaries and would leave local
jurisdictions in almost impossible situations.
According to this new post-Hagen argument, even if
an act was intended to diminish or disestablish a reserva-
tion or a portion thereof, it would remove from Indian
country status only those lands ceded, restored to the
public domain, or otherwise directly affected, leaving
reservation boundaries intact so as to encompass all other
fee lands in the same area. As a result, even if we
26
prevail in this Court, and even though this argument flies
in the face of the submissions in Seymour v. Superinten-
dent, 368 U.S. 351 (1962); Mattz v. Arnett, 412 US.
481 (1973); DeCoteau v. District County Court, 420
U.S. 425 (1975); Rosebud Sioux Tribe v. Kneip, 430
U.S. 584 (1977); Solem v. Bartlett, 465 U.S. 463 (1984)
and Hagen v. Utah, 510 U.S. 399 (1994), persistence
by the United States on this point could create the same
chaos in South Dakota (and in all states previously
affected by these and related decisions) as it has for the
Counties of Duchesne and Uintah in the State of Utah.
See Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D.
Utah 1996) and Ute Indian Tribe v. Utah, 114 F.3d
1513 (10th Cir. 1997), where this argument recently
received favorable consideration, after 40 months of need-
less post-Hagen litigation, which is not over yet, as Charles
Mix County and the Utah amici Counties have noted.
This post-Hagen argument is based only on isolated
sentences in the Hagen opinion, taken out of context and
used in conjunction with “diminished” terminology ‘to
support a reservation concept that would have been
unthinkable a century ago. Although this argument is
pure sophistry, it is beyond the scope of the arguments
in this brief to address it in detail and others have
assumed that responsibility. See Brief for Duchesne
County, Utah, and Uintah County, Utah, Amicus Curiae.
For this reason, the cities have simply reproduced in
its entirety note 6 at 17, of the Brief of the United States
submitted in the instant case in the court of appeals, as
Cities App. at la, infra. Brief for the United States as Am-
icus Curiae in Support of Plaintiffs-Appellees at 17 n.6,
Yankton Sioux Tribe v. Southern Missouri Waste Dist., 99
F.3d 1439 (8th Cir. 1996) (No. 95-2647). This note
outlines the thrust of the new post-Hagen argument of the
United States. The Court should make clear in its opin-
ion that this novel post-Hagen argument was also con-
sidered and rejected in this case, consistent with the ques-
tion presented and the established precedent of this Court.
27
VIL.
THE ARTICLE XVIII ARGUMENT MAKES AN
ENORMOUS ASSUMPTION AND LACKS SUB-
STANTIVE SUPPORT IN THE YANKTON DOCU-
MENTS.
1858 TREATY PROVISIONS
ARTICLE | . . . [C]ede and relinquish to the
United States all the lands now owned, possessed, or
claimed by them, wherever situated, except four
hundred thousand acres thereof, situated and de-
scribed as follows [metes and bounds description]
. . . 80 as to include the said quantity of four hundred
thousand acres.
ARTICLE IV. In consideration of the foregoing
cession, relinquishment, and agreements, the United
States do hereby agree and stipulate as follows, to
wit:
Ist. To protect the said Yanctons in the quiet
and peaceable possession of the said tract of
four hundred thousand acres of land so reserved
for their future home, and also their persons and
property thereon during good behavior on their
part.
Treaty of April 19, 1858, 11 Stat. 743, 744.
1894 SAVINGS CLAUSE
ARTICLE XVIII. Nothing in this agreement shall
be construed to abrogate the treaty of April 19th,
1858, between the Yankton tribe of Sioux Indians
and the United States. And after the signing of this
agreement, and its ratification by Congress, all pro-
visions of the said treaty of April 19th, 1858, shall
be in full force and effect, the same as though this
agreement had not been made, and the said Yankton
Indians shall continue to receive their annuities
under the said treaty of April 19th, 1858.
Act of August 15, 1894, 28 Stat. 286, 318; Pet. App. at
120.
28
The Tribe relies on this Article XVIII savings clause
in the 1894 Act to support the argument that the metes
and bounds boundaries of the 1858 “tract of four hundred
thousand acres of land” should still be recognized.
In the first place, the United States and the Tribe agreed
by the terms of the 1894 cession agreement to dispose
of a substantial portion of this 1858 tract of land set
apart for their “future home” or reservation. As a result,
a change in the limits or boundaries of this tract to reflect
this 1894 cession agreement would not abrogate the 1858
treaty. Instead, such a change, voluntarily and knowingly
agreed to by both parties, was a modification of the 1858
treaty, supported by a consideration paid by the United
States of $600,000. It was not an abrogation of the 1858
treaty. Of course, other unrelated 1858 treaty “provisions”
did remain in full force and effect, like the annuity
Secondly, this savings clause argument erroneously as-
sumes that one of the 1858 treaty benefits spelled out in
the 1858 treaty was that the United States promised
to maintain the 1858 boundaries intact, irrespective of a
subsequent change in tribal ownership status within those
boundaries (or at least such a result was intended by
Congress to be included therein in 1858). Generally
speaking, in 1858 (and for decades thereafter), this prem-
ise would have been contrary to all established principles
of federal Indian law. At that time, extinguishment of
Indian title also necessari!y extinguished the Indian char-
acter of the land. Bates v. Clark, 95 U.S. 204 (1877).
Moreover, as Solicitor Margold noted:
The Yankton Sioux Indian Reservation was estab-
lished by the treaty of April 19, 1858 (11 Stat. 744).
The right of the Indians to tie reservation thereby
created was that of use and occupancy, the United
States having the title in fee. Spaidinig v. Chandler
(160 U.S. 394). By an agreement entered into
December 31, 1892, and ratified by the act of August
29
15, 1894 (28 Stat. 286, 314), the Yankton Sioux
Indians ceded and sold to the United States for a
consideration of $600,000 a part of the reservation. . .
Opinions of the Solicitor, Dep't of the Interior, M-27671
(March 1, 1934) (emphasis added).
The above opinion was approved by the Secretary of
the Department of the Interior in 1934.
This fact, together with the undisputed point that noth-
ing in the 1858 treaty or the accompanying history can be
cited to establish any Congressional intent to create an
obligation on the part of the United States to maintain
the 1858 boundaries, wholly undermines the credibility
of this position.
In addition, this argument ignores the sum and sub-
stance of the 1894 Yankton documentation. In every
respect this documentation is plainly inconsistent with
such a position.
VIII.
THIS COURT SHOULD ACCORD THE LANGUAGE
IN THE 1894 ACT ITS ORDINARY MEANING.
In South Carolina v. Catawba Indian Tribe, Inc.. 476
U.S. 498 (1986), this Court had occasion to address a
general issue of statutory construction in great detail in an
Indian law case. At the end of the day, what the Court
said there, bears repeating:
The canon of construction regarding the resolution
of ambiguities in favor of Indians, however, does not
permit reliance on ambiguities that do not exist; nor
does it permit disregard of the clearly expressed
intent of Congress" . . . “See Oregon Dept. of
Fish and Wildlife v. Klamath Indian Tribe, 473
U.S. 753, 774 (1985) (“[E]ven though ‘legal am-
biguities are resolved to the benefit of the Indians,’
DeCoteau v. District County Court, 420 U.S. 425,
447 (1975), courts cannot ignore plain language
30
that, viewed in historical context and given a ‘fair
appraisal, Washington v. Washington Commercial
Passenger Fishing Vessel Assn., 443 U.S. [658, 673
(1979)], clearly runs counter to a tribe’s later
claims”); Rice v. Rehner, 463 U.S. 713, 732 (1983)
(canon of construction regarding certain Indian
claims should not be applied “when application would
be tantamount to a formalistic disregard of con-
gressional intent”); Andrus v. Glover Construction
Co., 446 U.S. 608, 618-619 (1980); DeCoteau v.
District County Court, 420 U.S., at 447 (“A canon
of construction is not a license to disregard clear
expressions of tribal and congressional intent”).
. “Tt is an “elementary cannon of construction
that a statute should be interpreted sO aS not to
render one part inoperative.” Colautti v. Franklin,
439 U.S. 379, 392 (1979). See also Mountain States
Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S.
237, 249 (1985); United States v. Menasche, 348
U.S. 528, 538-539 (1955) (“It is our duty ‘to give
effect, if possible, to every clause and word of a
statute,” Montclair v. Ramsdell, 107 U.S. 147, 152,
rather than to emasculate an entire section”).
476 U.S. at 506, 510.
By according the statutory language in the Yankton case
its “ordinary meaning,” a “most incongruous” result will
be laid to rest. /d. at 507.
CONCLUSION
For the foregoing reasons, the decision of the court of
appeals should be reversed.
Respectfully submitted,
TIMOTHY R. WHALEN
WHALEN LAw OFrPice, P.C.
P.O. Box 127
Lake Andes, SD 57356
Telephone: (605) 487-7645
Counsel of Record
APPENDICES
|
ee a ee ee
'
APPENDIX TABLE OF CONTENTS
Letter of Instruction from the Commissioner of Indian
Affairs to the Sisseton Commission of August 13, 1889
(APPENDIX A)
Excerpt from H.R. Rep. No. 7613, 59th Cong., 2d Sess.
(1907) (APPENDIX B)
Proclamation of April 11, 1892 opening the Sisseton-
Wahpeton Reservation, 27 Stat. 1017 (APPENDIX C)..
Page
ila
da
7a
la
APPENDIX A
LETTER OF COMMISSIONER OF INDIAN AFFAIRS,
NATIONAL ARCHIVES LAND DIVISION LETTER
BOOK 188.
DEPARTMENT OF THE INTERIOR
OFFICE OF INDIAN AFFAIRS
WASHINGTON
August 13, 1889.
Gentlemen:
Upon receipt hereof, you will proceed to the Sisseton
Agency, Dakota, for the purpose of negotiating with the
Sisseton and Wahpeton Indians for the relinquishment of
such portions of the Lake Traverse Reservation not allot-
ted, as said Indians may consent to release.
Such negotiations are authorized by the Sth Section
of the Act of February 7, 1887, which provides: “That
at any time after lands have been allotted to all the
Indians of any tribe as herein provided, or sooner if in
the opinion of the President it shall be for the best in-
terests of said tribe, it shall be lawful for the Secretary
of the Interior to negotiate with such Indian tribe for the
purchase and release by said tribe, in conformity with the
treaty or statute under which such reservation is held, of
such portions of its reservation not allotted as such tribe
shall, from time to time consent to sell, on such terms
and conditions as shall be considered just and equitable,
between the United States and said tribe, which purchase
shall not be complete until ratified by Congress, and the
form and manner of executing such release shall also be
prescribed by Congress”.
The Lake Traverse Reservation was created by the
3rd Article of the treaty between the United States and
the Sisseton and Wahpeton Bands of Dakota Sioux In-
dians, concluded February 19, 1867. (15 Stats. 505).
2a
It contains 818,780 acres, of which some 127,887 acres
have been allotted in severalty, and 1,417 acres reserved
for church and other purposes, leaving a surplus of some
789,476 acres.
The allotments have virtually been completed although
it is possible that some few individuals who were not on
the reservation when the allotments were made in 1887
are entitled to allotments.
The treaty makes no provision regarding the cession or
relinquishment of the reservation or any portion thereof.
It is understood that the Indians desire to sell a portion
at least, of their surplus lands.
You will call a full council of the bands and submit the
subject for their consideration. If a majority of such
council determine to sell any portion of the reservation,
you will then agree upon the quantity of land to be sold,
and its location, which should be described by sections, or
other legal subdivisions of townships.
It is not considered advisable that the cession at this
time should embrace all these surplus lands. A sufficient
quantity should be reserved for future contingencies.
The terms and conditions of the sale should then be
agreed upon, which should be just and equitable to the
Indians, as well as to the United States.
You will explain to the Indians that under the Act of
February 8, 1887, the sums agreed to be paid as purchase
money, will be paid in the Treasury of the United States
for their sole use, the same with interest, thereon at 3
per cent per annum, to be at all times subject to appro-
priation by Congress for the education and civilization of
said Indians.
The terms and conditions agreed upon in Council, with
the description of the lands to be relinquished, should be
reduced to writing and incorporated in the accompanying
form of agreement, which should be signed by at least a
majority of the male adults of the bands.
3a
All such adults should be given an opportunity to sign.
When freely and properly signed, your certificates and
the certificate of the Official Interpreter, should be at-
tached to the instrument.
The proceeding of the Council should be reduced to
writing and attested by your signatures and that of the
Official Interpreter.
The Indians should be informed that the negotiations
will not be valid or binding until ratified by Congress.
Very respectfully,
/s/ T. J. Morgan
Co es
4a
APPENDIX B
59TH ConGRESS, 2d Session
Report No. 7613
HOUSE OF REPRESENTATIVES
SALE AND DISPOSITION OF CERTAIN LANDS IN
ROSEBUD INDIAN RESERVATION, S. DAK.
FEBRUARY 14, 1907.—Committed to the Committee of
the Whole House on the state of the Union
and ordered to be printed.
Mr. BuRKE, of South Dakota, from the Committee on
Indian Affairs, submitted the following
REPORT.
{To accompany H. R. 24987.]
* * * *
Section 6 of the bill reserves sections 16 and 36 in each
township for the use of the common schools, and grants
the same to the State of South Dakota, and section 7
make an appropriation to pay for the same at $2.50 per
acre. This is following the precedents which have hereto-
fore been established in the opening of other reservations
in South Dakota, and is based upon section 10 of the act
of Congress admitting South Dakota into the Union,
approved February 22, 1889. Said section is as follows:
Sec. 10. That upon the admission of each of said
States into the Union sections numbered sixteen and
thirty-six in every township of said proposed States,
Sa
and where such sections, or any part thereof, have
been sold or otherwise disposed of by or under the
authority of any act of Congress, other lands equiva-
lent thereto, in legal subdivisions of not less than
one-quarter section, and as contiguous as may be to
the section in lieu of which the same is taken, are
hereby granted to said States for the support of
common schools, such indemnity lands to be selected
within said States in such manner as the legislature
may provide, with the approval of the Secretary of
the Interior: Provided, That the sixteenth and thirty-
sixth sections embraced in permanent reservations
for national purposes shall not at any time be subject
to the grants nor to indemnity provisions of this act,
nor shall any lands embraced in Indian, military, or
other reservations of any character be eubject to the
grants or to the indemnity provisions of thie act until
the reservation shall hawe been extinguished and such
lands restored to and become a part of the public
domain. .
The following are the precedents:
By section 30 of the act opening and dividing the Great
Sioux Reservation, sewtions 16 and 36 were granted to
the State, and an appropriation of $1.25 per acre was
made to pay for same. Act approved March 2, 1889.
~(25 Stat. L. 898.)
By section 30, act approved March 3, 1891, opeming
the Sisseton and Wahpeton Reservation, the school sections
were ceded to the Staite and an appropriation made, and
‘on were paid for at $2.50 per acre. (26 Stat. L..
By act of August 15, 1894, openimg the Yanktom Reser-
vation, the school sections were ceded to the State and
paid for at $3.75 per acre. (28 Stat. L., 313.)
Act providing for sale of Rosebud Reservation, in
Gregory County, school sections were ceded and paid for
—_——
6a
at $2.50 per acre, and act authorizing sale of a portion
of the Lower Brule Reseravtion, first session of this (Fifty-
ninth) Congress, school sections were ceded to the State
and paid for at $1.25 per acre.
For the purpose of showing that the bill has the ap-
proval of the Secretary of the Interior and the Commis-
sioner of Indian Affairs, their letters are attached hereto,
together with a copy of the agreement... .
7a
APPENDIX C
BY THE PRESIDENT OF THE
UNITED STATES OF AMERICA
A PROCLAMATION.
Whereas, by the third article of the treaty between the
United States of America and the Sisseton and Wahpeton
bands of Dakota or Sioux Indians, concluded February 19,
1867, proclaimed May 2, 1867 (15 U.S. Statutes, p. 505),
the United States set apart and reserved for certain of said
Indians certain lands, particularly described, being situ-
ated partly in North Dakota and partly in South Dakota,
and known as the Lake Traverse Reservation; and
Whereas, by agreement made with said Indians residing
on said reservation, dated December 12, 1889, they con-
veyed, as set forth in article one thereof, to the United
States, all their title and interest in and to all the un-
allotted lands within the limits of the reservation set apart
as aforesaid remaining after the allotments shall have been
made, which are provided for in article four of the agree-
ment, as follows:
That there shall be allotted to each individual
member of the bands of Indians, parties hereto, a
sufficient quantity, which, with the lands heretofore
allotted, shall make in each case one hundred and
sixty acres, and in case no allotment has been made
to any individual member of said bands, then an
allotment of one hundred and sixty acres shall be
made of such individual;
and
Whereas, it is provided in article two of said agreement,
That the cession, sale, relinquishment, and convey-
ance of the lands described in article one of this
agreement shall not take effect and be in force until
the sum of $342,778.37, together with the sum of
$18,400, shall have been paid to said bands of In-
dians, as set forth and stipulated in article third of
this agreement;
and
Whereas, it is provided in the act of Congress approved
March 3, 1891 (26 U.S. Statutes, pp. 1036-1038, Sec.
30), accepting and ratifying the agreement with said
Indians:
That the lands by said agreement ceded, sold,
relinquished, and conveyed to the United States shall
immediately, upon the payment to the parties entitled
thereto of their share of the funds made immediately
available by this act, and upon the completion of the
allotments as provided for in said agreement, be sub-
ject only to entry and settlement under the homestead
and townsite laws of the United States, expecting
the sixteenth and thirty-sixth sections of said lands,
which shall be reserved for common school purposes,
and be subject to the laws of the State wherein
located: Provided, That patents shall not issue until
the settler or entryman shall have paid to the United
States the sum of two dollars and fifty cents per acre
for the land taken up by such homesteader, and the
title to the lands so entered shall remain in the
United States until said money is duly paid by such
entryman or his legal representatives, or his widow,
who shall have the right to pay the money and com-
plete the entry of her deceased husband in her own
name, and shall receive a patent for the same.
and
Whereas, Payment as required by said act, has been
made by the United States; and
Whereas, Allotments as provided for in said agreement,
as now appears by the records of the Department of the
Interior will have been made, approved, and completed,
9a
and all other terms and considerations required will have
been complied with on the day and hour hereinafter fixed
for opening said lands to settlement.
Now, therefore, I, Benjamin Harrison, President of the
United States, do hereby declare and make known that
all of the lands embraced in said reservation, saving and
excepting the lands reserved for and allotted to said
Indians, and the lands reserved for other purposes in
pursuance of the provisions of said agreement and the
said act of Congress ratifying the same and other, the
laws relating thereto will, at and after the hour of twelve
o'clock noon (central standard time) on the fifteenth day
of April, A. D. eighteen hundred and ninety-two, and not
before, be opened to settlement under the terms of and
subject to all the terms and conditions, limitations, reser-
vations, and restrictions contained in said agreements,
the statutes above specified, and the laws of the United
States applicable thereto.
The lands to be opened for settlement are for greater
convenience particularly described in the accompanying
schedule, entitled “Schedule of lands within the Lake
Traverse Reservation opened to settlement by proclama-
tion of the President dated April !1, 1892,” and which
schedule is made a part hereof.
Warning, moreover, is hereby given that until said
lands are opened to settlement as herein provided, all
persons, save said Indians, are forbidden to enter upon
and occupy the same or any part thereof.
And further notice is hereby given that it has been
duly ordered that the lands mentioned and included in
this Proclamation shall be, and the same are attached to
the Fargo and Watertown land districts, in said States,
as follows:
1. All that portion of the Lake Traverse Reservation,
commencing at the northwest corner of said reservation;
10a
thence south 12 degrees 2 minutes west, following the
west boundary of the reservation to the new seventh
standard parallel, or boundary line between the States of
North and South Dakota; thence east, following the new
seventh standard parallel to its intersection with the north
boundary of said Indian reservation; thence northwesterly
with said boundary to the place of beginning, is attached
to the Fargo land district, the office of which is now
located at Fargo, North Dakota.
2. All that portion of the Lake Traverse Reservation,
commencing at a point where the new seventh standard
parallel intersects the west boundary of said reservation;
thence southerly along the west boundary of said reserva-
tion to its extreme southern limit; thence northerly along
the east boundary of said reservation to Lake Traverse;
thence north with said lake to the northeast corner of the
Lake Traverse Indian Reservation; thence westerly with
the north boundary of said reservation to its intersection
with the new seventh standard parallel, or boundary line
between the States of North and South Dakota; thence
with the new seventh standard parallel to the place of
beginning, is attached to the Watertown land district, the
office of which is now located at Watertown, South Dakota.
In witness whereof, | have hereunto set my hand and
caused the seal of the United States to be affixed.
Done at the City of Washington this eleventh day of
April, in the year of our Lord one thousand
[SEAL] eight hundred and ninety-two , and of the Inde-
pendence of the United States the one hundred
pendence of the United States the one hundred
and sixteenth.
BENJ HARRISON
By the President:
JAMES G. BLAINE
Secretary of State.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.