Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

uname Court, U.S.

¥tiLts wv

(6) aug 7 1997

No. 96-1581

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

STATE OF SOUTH DAKOTA,

Petitioner,

v.

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 CHARLES MIX COUNTY, SOUTH DAKOTA,

AMICUS CURIAE, IN SUPPORT OF PETITIONER,

STATE OF SOUTH DAKOTA

MATTHEW F. GAFFEY Tom D. ToBIN

Charles Mix County Counsel of Record

State’s Attorney TOBIN LAW OFFICES, P.C.

P.O. Box 370 422 Main Street

Lake Andes, SD 57356 P.O. Box 730

(605) 487-7441 Winner, SD 57580

(605) 842-2500

Attorneys for Amicus Curiae

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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

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

. Yankton Sioux Tribe v. South Dakota, 796

F.2d 241 (8th Cir. 1986)

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

. Yankton Sioux Tribe v. Southern Missouri

Waste District, 99 F.3d 1439 (8th Cir.

ii

TABLE OF AUTHORITIES

CASES: Page

Antoine v. Washington, 420 U.S. 194 (1975)........ 6

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

CBD coccincinecssccsibccandalathtshalendaaliniapatetahianlindideadalicap inthe passim

DeCoteau v. District County Court, 211 N.W. 843

CUED, BID. cccrcescnsciccscdsdesivtitibiadbdibinttenctabbialaditetinn 2, 21

Dickerson v. New Banner Institute, Inc., 460 U.S.

OD Se cabinet tea alieivtctsscsnicciesiiiitds 25

Hagen v. Utah, 510 U.S. 399 (1994) ................ 1, 2, 18, 26

Johnson v. United States, 163 F. 30 (ist Cir.

RTE OSs Nie SF 8 OSA TEER an 15

Mattz v. Arnett, 412 U.S. 481 (1978) ~.................. passim

Oliphant v. Suquamish Indian Tribe, 485 U.S. 191 = -

p RRE SP ee RE RE EEE i CLI 24, 25

Oregon Dept’ of Fish & Wildlife v. Klamath Indian

Tribe, 478 U.S. 758 (19865) ..............----.c.-2ee-e000- 8, 25

Perrin v. U.S., 232 U.S. 478 (1914) .~................... 28, 24, 29

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

CRD sictitithincicisctinsidbiniblthinapbincnttaibatamtedtainiealial passim

Solem v. Bartlett, 465 U.S. 463 (1984) —.............. 2, 18, 25

State v. Greger, 599 N.W.2d 854 (S.D. 1997)........ 2

State v. Williamson, 211 N.W.2d 182 (S.D. 1973) .. 20, 21,

22, 23

State v. Winckler, 260 N.W.2d 356 (S.D. 1977)... 21

United States v. Dion, 752 F.2d 1261 (1985) _...... 4

United States v. Dion, 476 U.S. 734 (1986) ........ 4, 19, 23

United States v. Greger, 98 F.3d 1080 (8th Cir.

ESE Se ENR ES Se

United States v. Pelican, 232 U.S. 442 (1914) ....6, 23, 24

Ute Indian Tribe v. State of Utah, 935 F.Supp.

FE RRR ee 0 er ts ee 80

Ute Indian Tribe v. State of Utah, 114 F.3d 1513

>): REN tart RET eam 80

23

24

Weddell v. Meierhenry, 636 F.2d 211 (8th Cir.

EI electri ata acetal’ 20, 21, 22,

Wood v. Jameson, 130 N.W.2d 95 (1964) ....21, 22, 23,

Yankton Sioux Tribe v. South Dakota, 796 F.2d

241 (8th Cir. 1986) cert. denied 483 U.S. 1005

(FRESE Gaiee FRB ARB BME MB ics one EIT

iii

TABLE OF AUTHORITIES—Continued

Page

Yankton Sioux Tribe v. Southern Missouri Waste

Dist., 99 F.8d 1439 (8th Cir. 1996) 0000000... 29

STATUTES:

General Allotment Act of February 8, 1887, 24

SSE ae ce 5, 14

Act of June 17, 1892, 27 Stat. 52 00 8

Act of March 3, 1891, 26 Stat. 1036... 27

Act of August 15, 1894, 28 Stat. 286 20, 21

Act of April 23, 1904, 33 Stat. 254 000 27

CONGRESSIONAL MATERIALS:

H.R. Rep. No. 791, 50th Cong., Ist Sess. (1988). 7

S. Rep. No. 664, 52d Cong., Ist Sess. (1892)... 6

OTHER AUTHORITIES:

54 Interior Dec. 559 (1984) 2.00. 17

Brief for Petitioner, Seymour v. Superintendent,

368 U.S. 351 (1962) (No. 62) 2.00.00. 5

Memorandum for the United States, Seymour v.

Superintenednt, 368 U.S. 351 (1962) (No. 62). 6

Joint Brief of Respondent State of South Dakota

and United States as Amicus Curiae, DeMarrias

v. State, 319 F.2d 845 (8th Cir. 1963) (No.

RR thE 13

Brief for the United States, Mattz v. Arnett, 412

U.S. 481 (1978) (No. 71-1182) 00000. 7, 8,9, 11

Transcript of Oral Argument, Mattz v. Arnett, 412

U.S. 481 (1978) (No. 71-1182) 0. 8,9

Transcript of Oral Argument, Erickson v. U.S.

ex rel. Feather, U.S. Supreme Court No. 73-1500,

decided with DeCoteau v. District County Court,

NE FE SC ee ee 12

Brief for the United States as Amicus Curiae,

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

i ae 12, 13

Brief for the Tribe, Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977) (No. 75-562) 17, 18

iv

TABLE OF AUTHORITIES—Continued

Page

Brief for the United States as Amicus Curiae,

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

CE Ch ID eciticicieiteieiiteislnniienni tanta 14, 16, 17

Memorandum of the United States, Rosebud Sioux

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

re ee en eee «ON 16, 17

Transcript of Oral Argument, Rosebud Sioux

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

OED cncincnantintinhitndtnddssiegteeaiiitinl lh cnandidhatidid 5, 14, 17, 18

Brief for the United States as Amicus Curiae

Supporting Respondent, Solem v. Bartlett, 465

U.S. 463 (1984) (No. 82-1253) 0.0... 18, 19

Opening Brief for the Federal Appellant, United

States v. Dion, 752 F.2d 1261 (8th Cir. 1985) ..19, 20, 24

Brief for the United States, United States v. Dion,

476 U.S. 734 (1986) (No. 85-246) 0... 23, 25

Reply Brief of the United States, United States v.

Dion, 476 U.S. 734 (1986) (No. 85-246) 25

Transcript of Oral Argument, United States v.

Dion, 476 U.S. 734 (1986) (No. 85-246)... 20, 23, 25

Brief for the United States in Opposition, Yankton

Sioux Tribe v. State of South Dakota, 796 F.2d

241 (8th Cir. 1986) (No. 86-1436) ................... 4, 26

Brief for the United States as Amicus Curiae

Supporting Petitioner, Hagen v. Utah, 510 U.S.

399 (1994) (No. 92-6281) 0000... 28

Transcript of Oral Are ment, Hagen ° v. Utah, 510

U.S. 399 (1994) (No. 92-6281) ...................... 19, 22, 29

Brief for the United States, Yankton Sioux Tribe

v. Southern Missouri Waste District, 99 F.3d

1439 (8th Cir. 1996) (No. 95-2647) 0... 13

Petition for Writ of Certiorari, Yankton Sioux

Tribe v. Southern Missouri Waste District, (No.

RG a ee 1, 2, 20

Brief of Respondent, Southern Missouri Waste

Management District, in Support of Petitioner,

State of South Dakota, Yankton Sioux Tribe v.

Southern Missouri Waste District, (No. 96-

REESE TE ae Sear Seen 2, 18

v

TABLE OF AUTHORITIES—Continued

Page

Brief for the Cities as Amici Curiae in Support of

Petitioner, Yankton Sioux Tribe v. Southern

Missouri Waste District, (No. 96-1581) (May

RES SR See ee eae 1, 2, 20

Brief for the Petitioner, South Dakota v. Yankton

Sioux Tribe, (No. 96-1581) (August 7, 1997)... 2, 18

Brief of Duchesne County, Utah, and Uintah

County, Utah, Amici Curiae in Support of Peti-

tioner, South Dakota v. Yankton Sioux Tribe,

(No. 96-1581) (August 7, 1997) 000. 30

INTEREST OF AMICUS CURIAE

The vital concern that prompts the filing of this Amicus

Brief can be simply stated. Prior to this litigation, all

the courts and parties had recognized that the 1858

Yankton reservation no longer existed. Now, a century

later, more than half of the area of Charles Mix County,

South Dakota, is at issue. Consequently, the approxi-

mately 6,000 people that reside there presently face the

prospect of being suddenly thrust into the status of resi-

dents of an Indian reservation. If this takes place, their

officials would have only limited jurisdiction and the non-

members would have no elected voice in the governance

of their affairs and property by the Yankton Sioux Tribe.

The demographics of Charles Mix County in this area

are similar to other non-reservation rural counties found

in the State of South Dakota and the United States.

This is a county that has a significant rural farm popu-

lation. In terms of agricultural productivity, the land

consistently produces above average yields on a state-wide

basis. Approximately ninety-eight percent (98%) of the

acres in Charles Mix County are classified as farm land.

This farm land has an above average valuation and an

above average assessed dollars per acre worth. Ninety

percent of the land is owned by non-members and over

two-thirds of the residents are non-members who reside on

these small farms and in small towns and cities like Dante,

Lake Andes, Pickstown, Ravinia and Wagner. See Brief

for the Cities as Amici Curiae. In all, there are forty-nine

(49) political subdivisions within the county.

Although this Court has repeatedly recognized in this

situation, that the justifiable expectations of the people

should not be lightly regarded or simply swept aside, the

panel majority ignored that prudential advice. Hagen v.

Utah, 510 U.S. 399, 421 (1994); Rosebud Sioux Tribe

v. Kneip, 430 U.S. 584, 604-605 (1977). For these

reasons, the issue here is of grave importance to the

residents and governments of Charles Mix County, South

Dakota.

2

By contrast, here, as in Hagen, it is also important to

restate what is not at issue. Hagen, 510 U.S. at 421. The

Indian trust lands and the seat of the Yankton Sioux tribal

government situated on Indian trust lands (“tribal head-

quarters area at Marty”) are not at issue. State v.

Greger, 559 N.W.2d 854, 859 n.4 (S.D. 1997), Pet.

App. at 135. See also Cities Pet. Brief at 7 n.1 (Marty).

The Supreme Court of the State of South Dakota sub-

sequently considered the identical disestablishment ques-

tion in State v. Greger, Pet. App. at 125. In a unanimous

opinion, the State Supreme Court rejected the views of the

panel majority and reaffirmed the longstanding position

that the Yankton reservation was disestablished. The

County would submit that the views of the State Su-

preme Court are more in line with the principles formu-

lated by this Court, principles that should have been

controlling here.

Importantly, this is only the second time that any fed-

eral 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 hold-

ing was promptly reversed in DeCoteau v. District County

Court, 420 U.S. 425 (1975).

SUMMARY OF ARGUMENT

The County fully supports the arguments set forth in

the Brief of the State of South Dakota. The County fur-

ther agrees that the decision of the panel majority con-

flicts substantially with the relevant decisions of this Court.

This brief will focus on that conflict and the role of the

United States in the entire process.

A fair reading of Seymour v. Superintendent, 368 U.S.

351 (1962); Mattz v. Arnett, 412 U.S. 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.

3

Utah, 510 U.S. 399 (1994), clearly undermines the

views set forth by the panel majority. The State highlights

these important principles and, for that reason, they will

not be repeated here.

In addition, however, a proper perspective regarding

the history of disestablishment litigation before this Court

is important in order to accurately assess the views of

the panel majority and the dissent in conjunction with the

principles set forth in these decisions. This brief is in-

tended to serve that purpose and provide that perspec-

tive. The County starts with a brief review of the primary

arguments presented and rejected in each case decided by

this Court, a2 well as the historic perspective available or

established at the time.’ Such a review advances three

overriding themes.

First, as one would expect, each time the Court was

presented with this issue, more primary sources were

available from which a proper historical perspective could

be reconstructed and the intent of Congress more

conclusively ascertained. The opinions reflect this

documentation.

Second, the views of the United States are especially

noteworthy. The United States rarely fails to advocate

the resurrection of original reservation boundaries, pre-

sumably because of a perceived obligation to support the

tribal position. The shifting, but very sophisticated, argu-

ments of the United States (for the most part repeatedly

rejected by this Court) have mainly served to perpetuate

' This brief does not address the decision of this Court in Oregon

Dept. of Fish and Wildlife v. Klamath Tribe, 473 U.S. 753 (1985)

in detail, only because it is not truly a disestablishment case. How-

ever, Oregon does involve a cession agreement and the Oregon

opinion sheds considerable light on understanding the cession

process. The Supreme Court of South Dakota in Greger cited and

discussed Oregon in several instances. Pet. App. at 140 n.6, 149, 150.

For all of these reasons, Oregon is important and merits considera-

tion in this case.

4

the confusion and conflicts in this area of federal Indian

law, fueling the prospect of additional litigation.

The central arguments of the United States are there-

fore closely examined for another reason. As will be seen,

the United States repeatedly has made a number of im-

portant concessions in this Court, subsequent to DeCoteau,

regarding the effect of cession agreements, like this one,

on Indian reservations. These cession concessions, made

in conjunction with submissions that urged the continued

recognition of other original reservation boundaires, can-

not be explained away. The views of the United States in

this regard, submitted to this Court, merit continued

consideration.

This brief also addresses, in chronological order, the

specific concessions of the United States regarding the

disestablishment of the 1858 Yankton Sioux reservation

effected by the passage of the 1894 Yankton Sioux cession

act. Infra at 5. In 1984, the United States formally sub-

mitted this Yankton disestablishment concession in the

Eighth Circuit Court of Appeals. United States v. Dion,

752 F.2d 1261 (1985); United States v. Dion, 476 U.S.

734 (1986). The United States did so in order to main-

tain a cession distinction in Solem essential to its argu-

ment there supporting original reservation boundaries.

Moreover, in other litigation also pending at the same

time, and also involving the 1858 Yankton Sioux reserva-

tion and the 1894 Yankton Sioux cession act, the United

States acknowledged that this Court’s decision in De-

Coteau considered “a similar and contemporaneous ces-

sion agreement” with “the same language” and “purpose.”

BUS, Co. Pet. App. at 166a. Significantly, Article XVIII

of the 1858 treaty that the United States has now insisted

is sO important, was not mentioned in any of this.

5

ARGUMENT

A. A Review of the Arguments Previously Presented and

Rejected in This Court Establishes Clear Principles

That Undermine the Opinion of the Panel Majority.

Now, this principle that Congress did not intend to

disestablish the Reservations is not one that the gov-

ernment has made up out of whole cloth. It is sup-

ported both by history and by the previous decisions

of this Court. 7

Office of Solicitor General, Tr. at 22, Rosebud Sioux Tribe

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

added).

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

A disestablishment issue was first presented to this Court

in Seymour. Although we now know that the 1906 Col-

ville Act at issue in that case was one in a series of surplus

land statutes eracted pursuant to the General Allotment

Act of 1887 (Dawes Act)—a routine matter for Con-

gress by 1906—neither the General Allotment Act of

1887 nor the limited legislative history of the 1906 Act

played any real role in the resolution of the question. Act

of February 8, 1887, 24 Stat. 388. The Seymour opinion

does not cite the General Allotment Act or the legislative

history of the 1906 Colville Act. The briefs are similarly

silent with respect to the General Allotment Act and the

few citations to the 1906 legislative history are set forth

almost as an afterthought.

In short, Seymour was decided almost without the bene-

fit of any historical perspective. “Almost” is used because,

although neither the General Allotment Act nor the legis-

lative history of the specific act in question played any

role in the decision, Petitioner Seymour did rely on the

contrast between the 1906 Act and the earlier 1892

“public domain” legislation that concededly disestablished

the North Half of the Colville Reservation. Pet. Br. at 10,

Seymour (No. 62). At best, this was a limited perspec-

tive, but certainly one that benefited Petitioner by simple

6

contrast. More important matters were not briefed, i.e.

the argument that the public domain format of the 1892

Act was the result of a refusal by Congress to ratify a

previously negotiated 1891 cession agreement due to the

questionable nature of the title to the Colville Executi\e

Order Reservation and the argument that the language

was added to deal with a congressional concern that

undesirable precedent might be established. Antoine v.

Washington, 420 U.S. 194, 216 (1975) (Rehnquist, J.,

dissenting); S. Rep. No. 664, 52d Cong., Ist Sess.

(1892). See also U.S. v. Pelican, 232 U.S. 442 (1914).

In any event, it is doubtful whether any of the above

would have altered the views of the United States, which

argued in support of the reservation boundaries of the

South Half of the Colville Reservation (“Solicitor Gen-

eral has urged this construction upon the Court”).

Seymour, 368 U.S. at 357.

The Solicitor General's three page argument was based

predominantly on the 1948 statutory definition of Indian

country which, of course, begs the question. It was also

based upon subsequent congressional recognition, pri-

marily in 1956, that the reservation continued to exist.

BUS, Co. Pet. App. at 3a. Neither the General Allotment

Act nor the historical perspective of the 1906 Act played

any role in the brief for the United States. In this light,

Seymour concluded, without further citation, that:

The Act did no more than open the way for non-

Indian settlers to own land on the reservation in a

manner which the Federal Government, acting as

guardian and trustee for the Indians, regarded as

beneficial to the development of its wards.

Seymour, 368 U.S. at 356 (emphasis added).

The United States later seized on this statement from

Seymour and tied it to the General Allotment Act of 1887

(which, as previously noted, was not even mentioned in

Seymour). In effect, the United States attempted to at-

tribute to both Seymour and the General Allotment Act,

7

a new congressional plan or purpose consistent with a new

argument that no surplus land statute, passed pursuant to

the General Allotment Act of 1887, was ever intended by

Congress to disestablish portions of Indian Reservations—

a “whole cloth” argument: the revisionist theory of the

General Allotment Act.*

The United States focused on the General Allotment

Act of 1887 for more than one reason. Prior to that time,

Congress routinely utilized treaties, cession agreements

and other similar arrangements, some of which contained

allotment provisions, to disestablish reservations and open

territories throughout the United States to settlement for

decades:

[t]he policy of the Government from its earliest days

has been to restore Indian reservations or portions

thereof to the public domain as the exigencies of

advancing population required it... .

H.R. Rep. No. 791, 50th Cong., Ist Sess. at 3 (1888).

No one had ever attempted to even formulate an argument

that Congress never intended these actions to disestablish

the limits or boundaries of Indian reservations. If similar

cession agreements, passed subsequent to 1887, were not

intended to have the same effect, the General Allotment

Act of 1887 was the only point in history that Congress

could have even arguably intended to have altered such

a fundamental historical process. This is especially so in

“the absence of some affirmative evidence that Congress

specifically intended to depart from that historical format,

either generally or in a certain case. (The United States

could not produce such evidence at the time—or, as a

matter of fact, ever. And it will not do so in this case.)

The first opportunity for the United States to advance

the new revisionist theory of the General Allotment Act

argument in this Court came in Mattz v. Arnett, supra.

BUS, Co. Pet. App. at 14a-15a.

2 See the “whole cloth” disclaimer noted supra at 5.

2. Mattz v. Arnett, 412 U.S. 481 (1973). Although

the United States argued forcefully for the broad sweep

of Seymour tied to the General Allotment Act, this argu-

ment met with only limited success in Mattz. BUS, Co.

Pet. App. at 12a-l4a. The history of the Klamath River

Reservation at issue in Mattz was so tortious and fact

specific, isolated and atypical, that the Mattz dicta regard-

ing the General Allotment Act, while all that the United

States could have hoped for, did not really seem pivotal

to the decision.

‘ Certainly, the United States repeatedly told the Mattz

ourt:

The Act of 1892 can properly be understood only

in light of the General Allotment Act which Congress

had recently passed.

In our view, the Act of June 17, 1892, can properly

be understood only in light of two considerations:

(1) what Congress had done five years earlier in the

General Allotment Act... .

The policy of the Act was to continue the reserva-

tion system and the trust status of Indian land... .

This Court’s more recent decision in Seymour v.

Superintendent, 368 U.S. 351, is, in our view, con-

trolling here... .

BUS, Co. Pet. App. at 10a, 14a, 24a (emphasis added).

See also, id. at lla, 15a n.8.

And at oral argument, the United States squarely placed

this issue “into a little bit of historical perspective”:

This same policy is recognized more recently by this

Court in Seymour v. Superintendent. . . .

Tr. at 19-20, Mattz (No. 71-1182). See also, id. at 13,

14, 15, 21.

At the same time, to shore up this new General Allot-

ment Act argument and supplement this “little bit” of

historical perspective for the Court, the United States also

discussed certain statutes that concededly disestablished

9

Indian reservations. According to the United States, the

Court could, by contrast, look to these examples in deter-

mining when congressional action was really intended to

disestablish an Indian reservation—an instant historical

perspective. BUS, Co. Pet. App. at 18a-19a. Following

Petitioner’s lead in Seymour, and especially in light of this

aspect of the Seymour opinion, the controlling example

cited by the United States of a congressional mandated

disestablishment was the 1892 Colville statute, where the

operative language restored the north half of the reserva-

tion to the public domain. As the United States told this

Court in Mattz, among other things:

This Court’s more recent decision in Seymour v. Su-

perintendent, 368 U.S. 351, is, in our view, control-

ling here... . In holding that the Act did not termi-

nate the reservation there at issue, the Court

emphasized the absence from the Act of language

abolishing the reservations or “restoring that land to

the public domain” (368 U.S. at 355).

BUS, Co. Pet. App. at 24a (emphasis added).

Other examples were also listed by the United States

to support this “by contrast” argument, including a typical

cession. Jd. at 18a-19a (the cession example merits spe-

cial attention infra).

At oral argument, the United States repeated the “by

contrast” point:

MR. SACHSE .. . In closing, since I assume I am

out of time, I refer the Court to page 17 of our brief

where we have samples of language that Congress

used when it did want to discontinue a portion of a

reservation.

Tr. at 20-21, Mattz (No. 71-1182).

(Except for the cession example, the text infra establishes

that the others on the list were representative of atypical

situations encountered by Congress only on rare occasions

and decades apart.)

10

Without question, the Mattz opinion reflects both argu-

ments made by the United States. First, with respect to

the General Allotment Act:

Its policy was to continue the reservation system and

the trust status of Indian lands, .... See $6 of

the General Allotment Act, 24 Stat. 390; United

States Department of the Interior, Federal Indian

Law 115-117, 127-129, 776-777 (1958). ...

. . . This Court unanimously observed in an analo-

gous setting in Seymour, id., at 356, .. .

Mattz, 412 U.S. at 496, 497.

Secondly, with respect to the “by contrast” argument,

the Court in Mattz noted:

More significantly, throughout the period from 1871-

1892 numerous bills were introduced which expressly

provided for the termination of the reservation and

did so in unequivocal terms... .

Congress has used clear language of express termina-

tion when that result is desired. See, for example. . . .

Id. at 504, n.22 (emphasis added).

Two years later, this Court was actually presented with

a typical surplus land statute specifically patterned and

enacted pursuant to the terms of the General Allotment

Act. With the supporting documentation of both the spe-

cific act as well as the General Allotment Act, the Gen-

eral Allotment Act dicta in Mattz did not dissuade the

Court, including the author of the Mattz opinion, from

correctly concluding that surplus land statutes passed pur-

suant to the General Allotment Act were also intended

and routinely passed by Congress to disestablish Indian

reservations. DeCoteau v. District County Court, 420

U.S. 425, 447-449 (1975). Predictably, the United States

again argued forcefully for a different result in DeCoteau.

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

(1975). In DeCoteau, the surplus land statute at issue

was one of eight similar agreements in a cession format

11

jointly ratified in an 1891 Appropriation Act. Each of

these agreements was specifically tailored to the provisions

in the General Allotment Act, which had recently been

passed after nearly a decade of focused debate. For

these two reasons, fortuitous in retrospect, the historical

record consisted of hundreds of pages directed to this

aspect of the General Allotment Act (Section 5) and the

effect the cession agreements were understood and in-

tended to have.

Moreover, for the first time, all of this primary docu-

mentation was excerpted and presented to the DeCoteau

Court in several hundred pages of briefs, setting forth a

complete and proper historical perspective. That perspec-

tive established that although simple allotment per se (Sec-

tion 6 of the General Allotment Act) was only intended to

disestablish reservations at some point in the foreseeable

future, a separate and distinct surplus land statute, in a

cession format, opening the reservation or a portion

thereof to settlement pursuant to Sec. 5 of the General

Allotment Act, was intended to disestablish the affected

reservation pro tanto (on the date of the opening set

forth in the Presidential Proclamation). This was in pre-

cisely the same manner that pre-1887 cessions had dis-

established reservations for decades, when Congress and/or

the President authorized similar legislation.

The United States elected to ignore the force of this

documentation, and instead urged the DeCoteau Court

to recognize the continuing existence of the original reser-

vation boundaries on the basis of Seymour and Mattz and

the United States’ revisionist theory of the General Allot-

ment Act. While agreeing that the focal point of the issue

had to be the General Allotment Act of 1887, the United

States pressed the point that Seymour and Mattz were

both openings pursuant to that act, and that no act pur-

suant to the General Allotment Act was ever intended to

effect reservation disestablishment except at some future

point in time. (Again, as in the Brief for the United

States in Mattz, the United States blurred the distinction

12

between allotment per se (Section 6 of the General Allot-

ment Act) which eventually resulted in some non-Indian

ownership within the limits of Indian reservations, but was

never intended to immediately disestablish the reservations,

and surplus land statutes enacted pursuant to Sec. 5 of the

General Allotment Act, which repeatedly accomplished

this result). BUS, Co. Pet. App. at 37a, 38a, 39a, 40a.*

In addition, the United States submitte: » series of very

sophisticated arguments drawn from little scraps of lan-

guage found in Seymour and Mattz to support this general

proposition. No degree of sophistication, however, could

overcome the problem the United States never addressed:

namely, the fact that all of the contemporary historical

evidence irrefutably pointed to the opposite conclusion.

DeCoteau, 420 U.S. at 432, 434, 436, 438 and 441.

Further, the cession format utilized by Congress in

previous decades—with the end result never questioned in

terms of reservation boundaries—was only slightly modi-

fied at this point in time (1887 through the early 1900's).

As a result, the United States could only argue that the

cession format itself was probative of nothing because it

was not within the list of self-serving “by contrast” exam-

ples the United States now said Congress utilized when

Congress “clearly” intended to effectuate this result (the

list noted previously was compiled by the United States and

noted in Martz, 412 U.S. at 497, n.19). In the original

version of the list presented to the Court in Martz, the

United States had included representative cession language.

BUS, Co. Pet. App. at 18a-19a. When that cession exam-

ple did not appear in the Mattz opinion, the United States

omitted any mention of this fact to the Court, simply

adopted the Mattz list and argued throughout DeCoteau

that the cession language was meaningless. Jd. at 40a-

4la.*

® See also, Tr. at 11, 13, 17, 21, Erickson v. U.S. ex rel. Feather,

(No. 73-1500), decided with DeCoteau.

* At the time, the State of South Dakota evidently overlooked

this aspect of the original list and the fact that the typical cession

13

Even without a specific historical point of reference, it

is difficult to believe that the DeCoteau Court would have

found this argument credible when actually presented with

a real cession agreement. When all of the DeCoteau

documents conclusively established that the DeCoteau

cession format was still the rule at this point in time ie.,

after the General Allotment Act, rather than the exception,

this argument was soundly rejected. Cession terminology

was “precisely suited” to disestablishment and the re-

mainder of the sophisticated arguments of the United

States were noted and rejected for that reason. DeCoteau,

420 U.S. at 445.°

example submitted by the United States in the Brief for the United

States in Mattz (as “direct and unambiguous language” of disestab-

lishment) was actually ratified in the same statute as the cession

agreement presented in DeCoteau. BUS Co. Pet. App. at 40a. To

the extent that the United States was making the opposite argu-

ment in DeCoteau, this oversight was fortuitous for the United

States in that this contradictory position was never brought to the

Court’s attention.

5 As the Court in DeCoteau noted, as recently as 1963, the United

States had joined with South Dakota in the argument that cessions

disestablished reservations. Joint Brief of Respondent State of

South Dakota and United States as Amicus Curiae at 7, DeMarrias

v. State, 319 F.2d 845 (8th Cir. 1963) (No. 17200). DeCoteau,

420 U.S. at 443.

Not surprisingly, in every way that is arguably significant, the

Yankton documents mirror and reflect the same terminology, dis-

cussions, considerations, policies, and generalities presented in

DeCoteau. In fact, as Respondent Southern Missouri Waste Man-

agement District pointed out, the Yankton Commissioners repeatedly

referred specifically to the terms of the Sisseton Agreement. Br.

of Resp’t District 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 lands in the same

way” ... “we make no departure from our past policy” .. . “just

as all other cessions of land” .. .). Jd. 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.” Jd. at 9. See generally Hagen

510 U.S. at 412-414 (public domain).

14

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

(1977). The United States subsequently resisted the force

of DeCoteau. In 1977, in Rosebud, this Court considered

three Sec. 5 surplus land statutes considered by Congress

a decade after the DeCoteau surplus land statutes were

passed. The United States again argued that, after adopt-

ing the General Allotment Act, Congress never intended

this type of statute to disestablish portions of Indian reser-

vations. As in the past, reliance for this argument was

placed almost entirely upon Seymour and Mattz. In its

brief, the United States specially emphasized that Mattz

noted :

Placing the 1892 Act into the historic context of

the General Allotment Act of 1887, 24 Stat 388,

the [Mattz] Court further observed that the Allot-

ment Act “permitted the President to make allot-

ments of reservation lands to resident Indians and,

with tribal consent, to sell surplus lands. Its policy

was to continue the reservation system. . .

BUS, Co. Pet. App. at 65a (emphasis in original text).

In its discussion of DeCoteau, the United States failed

to mention the role played by Sec. 5 of the General Allot-

ment Act and the cessions in the DeCoteau process. Id.

According to the United States, DeCoteau was important

primarily because of the differences between the cession

act there and the Rosebud legislation, i.e., the unilateral

nature of the congressional action in Rosebud and the un-

certain payment in trust for the Rosebud land.

At oral argument, the United States repeatedly stressed

its revisionist theory of the General Allotment Act. The

United States maintained that after this act, Congress

never intended reservation disestablishment. DeCoteau

was mentioned only in passing and then primarily to some-

how support continued reservation boundaries throughout

this period. Tr. at 20, 21, 27, 29, Rosebud (No. 75-562).

The Rosebud Court proceeded, in the most definitive

opinion to date, to squarely address each and every argu-

15

ment—sophisticated arguments to be sure (and there were

many )—advanced in support of the Court restoring the

original boundaries of the Rosebud Reservation. Although

one or two minor exceptions might exist, a careful read-

ing of Rosebud, together with DeCoteau as recognized

historical background, establishes that the United States,

the Yankton Sioux Tribe and supporting Amici, can not

advance any argument of substance that has not already

been answered. (And, as in DeCoteau, the public domain

concept, whether expressed on the face of the act or in

the legislative history, was still important in Rosebud and

equated with reservation disestablishment. )

Unquestionably, as time went on, the cession format of

the earlier period was modified, but these changes in format

reflect no change in congressional intent. Thus, it ulti-

mately mattered little that the 1904 Rosebud Act was

technically not a “cession.” As the Court in Rosebud

explained:

As a matter of strict English usage, petitioner is un-

doubtedly correct; “cession” refers to a voluntary

surrender of territory or jurisdiction, rather than a

withdrawal of such jurisdiction by the authority of

a superior sovereign. But as Mr. Justice (then

J ) Holmes commented, we are not free to say

gress: “We see what you are driving at, but

you have not said it, and therefore we shall go on as

before.” Johnson v. United States, 163 F. 30, 32

(CAI 1908)....

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

which was not consented to by the required ex-

traordinary majority of the Tribe, does not make the

meaning of the Act ambiguous. . .

The word is technically misused but the meaning is

quite clear.

Rosebud, 430 U.S. at 597.

In the instant case, of course, the word “cession” is not

technically misused. And the United States’ comments

16

regarding real cessions in Rosebud (alternatively, in an

attempt to distinguish Decoteau) bear repeating now:

The court of appeals, however, failed to recognize

the crucial difference that in DeCoteau the United

States itself purchased the land in the reservation

pursuant to an agreement with the Indians; this, the

Court held, restored the land to the public domain

and extinguished the reservation. 420 U.S. at 446-

447.

Memorandum of the United States at 13, Rosebud Sioux

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

phasis added).

The 1891 Act had ratified an agreement in which

the Tribe expressly ceded to the United States all its

“right, title and interest” in the land for a lump sum.

The Court contrasted this transaction with the Acts

involved in Seymour and Mattz. ... The differences

identified by the Court are important to the present

case. The 1891 Act was a negotiated agreement

with the Tribe, whereas the Acts involved in Seymour

and Mattz were “unilateral” Acts of Congress not

agreed to by the Tribes. . . .

The 1891 Act was a straightforward cession for

a sum certain in amount. .. . These distinctions led

to the conclusion that the Lake Traverse Reserva-

tion was extinguished and the land restored to the

public domain... .

In DeCoteau (but not in Seymour or Mattz) the

United States itself purchased the land in the Reser-

vation pursuant to an agreement with the Indians;

this, the Court held, restored the land to the public

domain and extinguished the Reservation.

BUS, Co. Pet. App. at 66a, 67a (emphasis added).

The United States also reminded this Court of the 1934

Interior Department Opinion which they continued to rely

upon for traditional confirmation that real cessions dis-

established reservations:

17

In this way the exterior boundaries of a reservation

were further reduced. The lands thereby separated

from a reservation were no longer looked upon as

being part of that reservation.

54 Interior Dec. 560 (1934) (emphasis added) cited and

quoted in part in Memo. of the United States at 19-21

Rosebud (No. 75-562) and BUS, Co. Pet. App. at 79a

(“The Secretary noted that many reservation lands had

been ceded for a sum certain and concluded that ‘[t}he

lands thereby separated from a reservation were no longer

looked upon as being a pert of that reservation’” (54

LD. at 560)). Id.

It is beyond dispute that both the Sisseton and the

Yankton reservation agreements are within the purview

of this analysis. For this reason, as the United States

pointed out, the list in the 1934 Opinion included some 26

“reservations.” It did not include either the Sisseton or

Yankton cession. BUS, Co. Pet. App. at 80a.

In oral argument, the United States reiterated, by nega-

tive implication, this same dominant point:

{[Wjhenever Congress without a binding agreement

opens lands to white settlers, it does not pay for them

and does not guarantee any payment but only agrees

to act as trustee for future uncertain sales and leaves

the property interest in the Indians—as they did in

this case—that act does not remove the lands from

the boundaries of the Reservation.

Tr. at 22, Rosebud (No. 75-562) (emphasis added).

A few minutes later, the same cession distinction was

stressed in a different context:

[I]n DeCoteau, which distinguishes both cases in a

case where sale was made for a sum certain and an

agreement was made, as counsel for the Tribe has

discussed. .. .

Id, at 28.°

* See also Rosebud Sioux Tribe’s Brief in Rosebud that tracks

this position and confirms that same understanding regarding the

18

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

the United States combined and restated so many varia-

tions of earlier arguments that even a summary review is

difficult to present here. Moreover, since the United States

did not participate in oral argument, that source is not

available. In short, however, it can be fairly stated that

the United States in Solem argued whatever was necessary

to resist reservation disestablishment.

Most important for the present case are the concessions

of the United States regarding cessions which were adopted

in the Court’s Opinion. Solem, 465 U.S. at 470, 473

n.15, 474, 476, 478. The State addresses these points.

State’s Br. at 9, 15-16, 26 n.15.

For example, the United States said:

[Clritically different from the situation in DeCoteau

and Rosebud in at least the following respects: (1)

the relevant legislation contains no language of “ces-

sion”; (2) there was no prior tribal agreement to

cede the relevant area... .

Br. for the United States as Amicus Curiae Supp’ng Resp't

(opposing Pet. for Cert.) at 4 n.3, Solem (No. 82-1253)

(emphasis added).

On the merits, the cession theme was restated with

unmistakable clarity:

The critical question remains whether the statute

invoked worked an immediate and _ irrevocable

cession. ...

To be sure, as DeCoteau and Rosebud illustrate,

there are instances in which a Reservation must be

traditional view that real cessions disestablished reservations.

Tribe’s Brief at 12, 13 and 16, Rosebud (No. 75-562). Counsel for

the Rosebud Sioux Tribe has decades of experience in this area

of the law. At oral argument, he unequivocally stated:

A cession is a sale. It is a high-class sale. It is a sale be-

tween sovereigns. ... The Court assumed there was a cession.

That is the fundamental error of the Court Below.

Transcript of Oral Argument at 12-13, Rosebud, 430 U.S. 584.

19

found to have been irrevocably terminated or dimin-

ished. . . . In the climate of the times, the only

meaningful question is whether the legislation meant

to accomplish a present, unequivocal and irrevocable

transfer of Reservation lands from the Tribe to the

United States.

The critical fact in all these cases is that Congress

exacted a present and total surrender of all tribal

interest in the ceded land in return for an uncondi-

tional commitment by the United States to an agreed

payment... .

[T]he clear line between outright cession and mere

opening up of tribal lands was not always observed.

. . » But we do not read Rosebud as erasing the

traditional distinction.

What is relevant, however, is that, at the end of the

day, no cession resulted.

BUS, Co. Pet. App. at 103a, 109a, 110a, 11la, 113a,

122a (emphasis added).

In this light, it is not surprising that Solem repeatedly

made these same cession observations.

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

order to maintain the cession distinction essential to the

argument in Solem, the United States had to make similar

concessions in other cases then pending. As a result, at

about the same time (1984), the United States recog-

nized that cession disestablishment was the dominant

factor in the history of the 1858 Yankton reservation and

further, that the 1858 Yankton reservation had in fact

been disestablished by the 1894 Yankton cession act at

issue in the present case. Opening Brief for the Federal

Appellant at 16, 17 n.10, United States v. Dion, 752 F.2d

1261 (8th Cir. 1985). This submission by the United

States was made in the Eighth Circuit Court of Appeals

sitting en banc in conjunction with the appeals of federal

prosecutions of Yankton Sioux tribal members and others

for unlawfully killing bald eagles, as the United States has

acknowledged. Brief for the United States as Amicus

20

Curiae in Support of Plaintiffs-Appellees at 18 n.8, Yank-

ton Sioux Tribe v. Southern Missouri Waste Dist., 99 F.3d

1439 (8th Cir. 1996) (No. 95-2647).

In Dion, in the opening brief, the United States cor-

rectly identified the relationship between the 1858 Yank-

ton cession treaty and the 1894 Yankton cession act under

a subheading disputing a treaty “right to hunt eagles to

extinction” (one Yankton Sioux tribal member had alleg-

edly killed twenty bald eagles in the course of a year).

Opening Brief for the Federal Appellant at 16, 17 n.10,

Dion, 752 F.2d 1261; Transcript at 18, 27, Dion, 476

U.S. 734. In addition, and in accord with the cession

disestablishment submission in Solem v. Bartlett, 465 U.S.

463 (1984), the United States specifically cited with

approval the controlling federal and state decisions that

recognized and held that the 1858 Yankton reservation

was disestablished by the 1894 Yankton cession act:

In 1858, the Yankton Sioux negotiated a treaty with

the United States in which they “ceded and relin-

quished” to the United States all but 400,000 acres

of the lands claimed by them. Treaty with the

Yankton Sioux, Art. I, 11 Stat. 743. (April 19,

1858)" ... .” In 1894, Congress ratified an

agreement with the Yankton Sioux which further

diminished the size of their reservation. Act of August

15, 1894, § 12, 28 Stat. 286, 314. See Weddell v.

Meierhenry, 636 F.2d 211 (8th Cir. 1980); State v.

Williamson, 211 N.W.2d 184 (S.D. 1973).

Opening Brief of the Federal Appellant at 16, 17 n.10,

Dion, 752 F.2d 1261.

The two disestablishment cases cited by the United States

are both important. First, in Weddell v. Meierhenry, 636

F.2d 211 (8th Cir. 1980), the parties and the federal

court proceeded on the basis that the reservation had

been disestablished in considering a dependent Indian

community jurisdictional claim involving the City of

Wagner, South Dakota, which is within the 1858 Yankton

21

reservation. See Brief of Cities at 3-6." In the process

of rejecting this dependent Indian community claim to

preclude state jurisdiction, in Weddell the federal panel,

without dissent, specifically noted that the disestablishment

issue had been decided and conceded:

The Supreme Court of South Dakota has twice deter-

mined that the original Yankton Indian Reservation

had been diminished by an Act of Congress. Wood

v. Jameson, 81 $.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, 636 F.2d at 213 n.2.

Second, in State v. Williamson, 211 N.W.2d 182 (S.D.

1973), which also involved criminal offenses in the City

of Wagner, South Dakota, as well as in the City of Lake

Andes, South Dakota (both within the 1858 Yankton

reservation), the Supreme Court of the State of South

Dakota reiterated and restated its longstanding cession

jurisprudence regarding “outright” cessions. Later that

same month, the South Dakota Court again confirmed

this cession jurisprudence and the disestablished status of

a similar cession in DeCoteau v. Dist. County Ct., 211

N.W.2d 843 (S.D. 1973), which was subsequently affirmed

by this Court. DeCoteau, 420 U.S. 425 (1975).°

7 The criminal activity in Weddell originated in a burglary in

Wagner, South Dakota, involving the theft of rifles and shotguns

by several Yankton Sioux tribal members and other individuals and

the armed takeover of a nearby pork plant. The Supreme Court of

South Dakota decided the initial appeals in State v. Winckler, 260

N.W.2d 356 (S.D. 1977). In the Winekler opinion, a unanimous

State Supreme Court reiterated that it had previously held the

Yankton reservation to be “disestablished” in State v. Williamson,

211 N.W.2d 182 (S.D. 1973) and further cited DeCoteau v. Dist.

County Ct., 211 N.W. 843 (1973), aff'd, 420 U.S. 425 (1975).

Winckler, 260 N.W.2d at 360.

’ Judge Wollman, a member of the State Supreme Court at the

time, concurred specially, noting:

[T)he Act of 1894, 28 Stat. 286, expresses a congressional

determination to terminate the reservation status of the por-

22

Eight other briefs were filed in the Eighth Circuit Court

of Appeals in Dion. No one disagreed with the United

States’ disestablishment assessment of the 1894 Yankton

cession act or the controlling federal and state law.

The en banc majority opinion in the Eighth Circuit in

Dion acknowledged this 1894 Yankton cession act dis-

establishment in the following fashion, and the dissent did

not disagree with this conclusion:

1858, the Yankton Sioux and the United States

wtbew 5 a treaty in which the Yankton Sioux

ceded and relinquished to the United States all lands

claimed by the tribe except for a four hundred thou-

sand acre tract of land‘ . . .. The Supreme Court

of South Dakota has determined that an act of Con-

gress in 1894 diminishea the size of the original

reservation. State v. Williamson, 87 S.D. 512, 211

N.W.2d 182, 184 (1973); Wood v. Jameson, 81

S.D. 12, 130 N.W.2d 95, 99 (1964). See Weddell v.

Meierhenry, 636 F.2d 211, 213 n.2 (8th Cir. 1980).

Dion, 752 F.2d at 1263 & n.7 (8th Cir. 1985) (footnote

omitted ).*

tion of the reservation ceded, sold, relinquished and conveyed

to the United States by the Yankton Tribe.

State v. Williamson, 211 N.W.2d 182, 184 (S.D. 1973). In the

instant case, Judge Wollman recused himself.

The United States has now belittled Williamson and all state and

federal Yankton disestablishment precedent prior to “Solem and

Hagen,” without explaining why Seymour, Mattz, DeCoteau and

Rosebud do not also figure in this equation. Brief for United States

as Amicus Curiae in Support of Plaintiffs-Appellees at 17, Yankton

Sioux Tribe v. Southern Missouri Waste Dist., 99 F.3d 1439 (8th

Cir. 1996) (No. 95-2647).

®The en banc court supplemented the citations of the United

States to the disestablishment cases of Weddell v. Meierhenry, 636

F.2d 211 (8th Cir. 1980) and State v. Williamson, 211 N.W.2d 182

(1973) with this reference to Wood v. Jameson, 130 N.W 2d 95

(1964) (The court of appeals in Weddell had also cited Wood). In

a habeas corpus case, the South Dakota Supreme Court in Wood

rejected an Indian country claim of federal jurisdiction for a

crime of rape that occurred in Lake Andes, South Dakota, which

23

State v. Williamson, 211 N.W.2d 182 (S.D. 1973);

Wood v. Jameson, 130 N.W.2d 95 (S.D. 1964) and

Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980)

all make clear that the 1858 Yankton reservation has been

disestablished and that references to the present Yankton

reservation are limited to the land still held in trust for

the Yankton Sioux Tribe or tribal members. See also

DeCoteau, 420 U.S. at 446. And it was in this light that

the Solicitor General admitted in this Court that the

“reservation” nature of the violations in Dion were “essen-

tially undisputed.” Brief for the United States at 15

n.19, Dion, 476 U.S. 734. See also Respondent's refer-

ences to “Indian land” and “his reservation.” Transcript

at 20-21, Dion, 476 U.S. 734.

The opinion of this Court in Dion noted early on that

the Eighth Circuit simply assumed that the birds were

killed on the “reservation” and that the same assumption

was made in this Court. Dion, 476 U.S. at 735 & nl.

With this assumption, a unanimous Court did not other-

wise directly or specifically address the 1894 Yankton

cession act issue. However, in the course of discussing

the history of the 1858 Yankton reservation, the Court

in Dion did cite Wood in the text of the opinion, in recog-

nition of the fact that the area reserved in 1858 was

initially a “legally constituted Indian reservation.” Dion,

476 U.S. at 737 (citing Wood, 130 N.W.2d 95). See

discussion of Wood supra at Note 9. On the very same

page in Wood that recognized the initial legitimacy of the

1858 Yankton reservation, the Wood opinion begins its

is within the 1858 Yankton reservation. Wood, 113 N.W.2d 95. The

Wood court, citing numerous state court decisions, distinguished

Seymour v. Superintendent, 368 U.S. 351 (1962) (as this Court did

later in DeCoteau) on the basis of the nature of this outright 1894

cession. Wood v. Jameson, 130 N.W.2d at 98-99. The Wood court

also relied on this Court’s venerable precedent in United States v.

Pelican, 232 U.S. 442 (1914) and Perrin v. United States, 232 U.S.

478 (1914) (liquor provision to apply “on or off a reservation”)

and concluded that the “purpose” of Congress was to “disestablish

the reservation.” Wood v. Jameson, 130 N.W.2d at 97-99. See also

discussion of Perrin in State’s Br. at 33.

24

discussion of the disestablishment of the 1858 Yankton

reservation occasioned by the passage of the 1894 Yank-

ton cession act (two sentences later). Wood, 130 N.W.

2d at 97. As noted above, the Wood analysis included

of the cession language of the 1894 cession

act and early precedent of this Court, such as United

States v. Pelican, 232 U.S. 442 (1914) and Perrin v.

United States, 232 U.S. 478 (1914). Wood, 130 N.W.

2d at 97-99. Because the Eighth Circuit in Dion expressly

cited Wood for this disestablishment holding, the refer-

ence to Wood in this Court’s opinion should be viewed

in this light.

One final point with respect to the views of the United

States in Dion regarding the 1858 Yankton treaty, the

1894 Yankton cession act and subsequent acts of Con-

gress. Apart from the previous inconsistent disestablish-

ment concession of the United States with reference to the

1894 Yankton cession act (and all other cessions), the

strained argument the United States now submits should

also be examined in the context of the views the United

States expressed in Dion regarding statutory construction

and Indian treaties generally. For example:

{T]he general circumstances of treaty negotiation in

the nineteenth century which, in our view, would not

have led any of the parties even to form an intention

on this issue. In Oliphant v. Suquamish Indian Tribe,

435 U.S. 191, 206 (1978), the Supreme Court em-

phasized that treaties with the Indians “cannot be

interpreted in isolation but must be read in light of

the common notions of the day and the assumptions

of those who drafted them.” The historical context

of Indian treaty negotiation demonstrates that neither

the United States nor the Indian signatories ever

contemplated. .. .

Opening Brief for the Federal Appellant at 17-18, Dion,

752 F.2d 1261.

This Court has emphasized that Indian treaties ‘can-

not be interpreted in isolation but must be read in

light of the common notions of the day and the

25

assumptions of those who drafted them.’ Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 206 (1978).

Brief for the United States at 19, Dion, 476 U.S. 734.

DB pg Mepe cledledh ae nedbage dv

terpreted in t purposes Congress sought

to achieve. See, ¢.g., Dickerson v. New Banner os

stitute, Inc., 460 U.S. 103, 118 (1983).

Reply Brief of the United States at 7, Dion, 476 U.S. 734.

The statute should be construed in order to effectuate

its purposes.

Transcript at 17, Dion, 476 U.S. 734.

These are important concepts. Their significance is not

undermined here simply because the United States now

chooses to advance an argument that is at odds with

acknowledged congressional assumptions and overall con-

gressional purposes.

7. Yankton Sioux Tribe v. South Dakota, 796 F.2d

241 (8th Cir. 1986), cert. denied, 483 U.S. 1005 (1986).

Apart from Dion, the United States has only had one

opportunity since DeCoteau (but before the present litiga-

tion) to tell this Court specifically about the Yankton

Sta.uie and how it compared to the DeCoteau statute. In

that instance, involving a lakebed, the cession comparison

is also telling:

[T}he United States’ right to control Lakes Andes

and its bed, to the exclusion of the Yankton Sioux

Tribe, is in any event secured by the 1892 Cession

Agreement. . . . First, Article I is framed in terms

that = Court by repeatedly characterized as “ex-

press language of cession.” Ore Dep't of Fish

Wildlife v. Klamath Indian Tribe, No. Aden ( july

2, 1985), slip op. at 15 n.19; Solem v. Bartlett, 465

U.S. 463, 469 (1984). In DeCoteau v. District

County Court, 420 U.S. 425, 445 (1975) (emphasis

added), this Court, in considering a similar and

contemporaneous cession agreement, found that the

same language was “precisely suited” to the purpose

26

of conveying to the United States, “for a sum certain,

all of {the Indians’) interest in ail of their unallotted

lands.”

Second, the retention of the lakebed by the Tribe

would have been inconsistent with the purposes of

the 1892 Cession Agreement. Those purposes con-

sisted not only of opening additional lands for non-

Indian settlement, but also of paving the way for

the anticipated end of the tribal way of life. . . .

BUS, Co. Pet. App. at 165a, 166a (emphasis on all in

original).

While it remains to be seen exactly what the United

States might tell this Court now, the County would submit

that in this excerpt in the 1986 Brief in Opposition, the

United States has already said everything worth saying

(“a similar and contemporaneous cession”). This Yank-

ton lakebed litigation was pending for over a decade.

Although reservation disestablishment was not decided,

the Yankton cession agreement was central to the argu-

ments for the United States and other parties. As such,

it was thoroughly reviewed and discussed in all respects.

At that time, Article XVIII of the Yankton agreement,

viewed in context, was not noteworthy and did not even

merit special attention in the argument of the United

States.

Not surprisingly, the position of the United States on

this issue was subsequently modified to one that now

supports the recognition of the original Yankton reserva-

tion. In the court of appeals, Article XVIII figured

prominently in the new argument.

8. Hagen v. Utah, 510 US. 399 (1994). Hagen

reflects the most recent views of this Court in resolving

disestablishment issues. Due to the history of the Utah

legislation, the United States devoted most of its argu-

ments in Hagen—naturally in favor of a recognition of

original reservation boundaries—to “public domain” termi-

nology. These arguments were generally rejected in De-

Coteau. Again, in Hagen this Court squarely rejected

them.

interests” in the opened area suggests

that meant to sever it from the reservation.

Ibid. such is buttressed an unp-

conditional commitment to ny a tribe,

“there is an almost insurmountable presumption that

Congress meant for the tribe’s reservation to be

if

extinguished in DeCoteau v. District County

420 U.S. 425, 431-449 (1975). »

:

:

i

language of cession. .

That language does not refer to a “cession” or other-

wise “evidenc[e] present and total surrender of

all tribal interests” in the opened land. . . . {C]on-

trasts sharply with that of the statutes at issue in

DeCoteau and Rosebud, the two recent cases in

which the Court has found that reservation bound-

aries were altered by Congress. See DeCoteau, 420

US at 445 (statute provided that the Indians did

cede, sell, relinquish, and convey to the United

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

to all the unallotted lands,” Act of Mar. 3, 1891,

i tae 1036); Rosebud, 430 U.S. at 596-

provided that Indians did

: Se ta “hereby cede,

their claim, right, title, and interest

ing unallotted.” Act of Apr. 23, 1904, ch. 1484, 33

Stat. 254). In sum, the 1905 Act contains neither

2. “Le }xplicit reference to cession” nor any

my

es

f

++

1

es

ua

ie

ge 8

Aa the Ressbud Coust explained, 0

Rosebud Sioux Reservation was

the 1904 Act at issue there could only ha

trated congressional intent. pe ae em

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Hr

|

aie

lth

tion of the Reservation’s boundaries was at hand;

BUS, Co. Pet. App. at 138a, 14la n.20, 142a, 143a,

149a, 150a (emphasis added).

Significantly, in this instance the United States also

participated in oral argument and made explicit repre-

sentations as to the effect of the use of cession language:

MR. MANN: ... [T]he language of cession. That

seems to be—that phrase seems to be the phrase

Congress used when it intended to alter the bound-

aries of a reservation.

QUESTION: Well, when it intended to alter the

boundaries of the reservation by cession. That much

is clear.

Tr. at 26, Hagen (No. 92-6281).

The County certainly would not attempt to improve

upon the gist of this exchange. Nothing more need be

said on this point.

Indian reservations is of “significant import.” Br. of the

United States at 1, Yankton Sioux v. Southern Missouri,

99 F.3d 1439 (8th Cir. 1996) (No. 95-2647). (The

United States did not contest the fact that federal juris-

diction had not been exercised in this area for over a

century).

Moreover, the United States argued, for the first time,

that it had a strong interest in protecting “the integrity of

reservation boundaries” because of its “special relation-

ship with Indian tribes.” Jd. The strength of this interest

presumably overpowered any inclination to present, ad-

dress, explain or defend any of the previous United States’

Cession arguments that were plainly inconsistent with con-

tinued reservation status, including the Dion disestablish-

ment concession. The United States mentioned none of

this and simply noted: “We do not agree with the argu-

ments raised by the County in its brief. They are irrele-

vant to this case.” Jd. at 19 n.11.”

Only two points in the novel argument now advanced

by the United States in support of original reservation

boundaries are significant at this point in time. First, the

commendable concession that this Court’s 1914 Yankton

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

“assumed” disestablishment. /d. at 19 n.10. And secondly,

2° At oral argument in the companion case of United States v.

Greger, 98 F.3d 1080 (8th Cir. 1996), the United States glossed

over the 1894 cession act because, unlike the act in Hagen, it did

not contain probative public domain language on its face. In

Hagen, the premise of the argument of the United States was just

exactly the reverse: public domain language was meaningless,

cession language would have been dispositive. See text at 28,

supra.

re

‘

1! Another generic argument that the United States has endorsed

and submitted 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 Yankton cession statute.

(In light of this Court’s precedent, the County has every reason

to believe that this Court will squarely reject the revised Yankton

cession views of the United States in this case). But the new

argument of the United States, submitted subsequent to Hagen in

the Tenth Circuit 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 such

as Charles Mix County in almost impossible situations.

Because it is beyond the scope of this brief, others have addressed

the decisions that recently endorsed this position. See Ute Indian

Tribe v. State of Utah, 935 F. Supp. 1473 (D. Utah 1996) and

Ute Indian Tribe v. State of Utah, 114 F.3d 1518 (10th Cir. 1997),

where this argument recently received favorable consideration, after

40 months of needless post-Hagen litigation, which is not over yet.

See Brief of Duchesne County, Utah, and Uintah County, Utah

Amici Curiae. The County has reproduced the argument itself as

the United States submitted it in Co. App. at la, infra.

31

Respectfully submitted,

MATTHEW F. GAFFEY Tom D. Tosin

Charles Mix County Counsel of Record

State’s Attorney TOBIN LAW OFFICcEs, P.C.

P.O. Box 370 422 Main Street

Lake Andes, SD 57356 P.O. Box 730

(605) 487-7441 Winner, SD 57580

(605) 842-2500

Attorneys for Amicus Curiae

Dated: August 7, 1997

APPENDIX

la

Excerpt from Page 17 (Footnote 6) From Brief for United

States as Amicus Curiae in Support of Plaintiff’s-

Appellee’s, Yankton-Sioux Tribe v. Southern Missouri

Waste Management Dept., 99 F. 3d 1439 (8th Cir.

1997) (95-2647).

* * * *

Article I of the 1892 Agreement provides only that “the

unallotted lands within the limits the [Yankton Sioux]

reservation” are ceded to the United States, and it was

only such lands that were covered by the Presidential

Proclamation of May 16, 1895. As a result, the State’s re-

liance on Articles I and II of the 1892 Agreement for the

proposition that the Reservation was diminished can ex-

tend no further than those unalloted lands. The other

lands owned by non-Indians on the Reservation presum-

ably were once allotted to tribal members but later sold to

non-Indians. The State has pointed to nothing in the 1892

Agreement to suggest that these lands were removed from

the Reservation any more than that the allotted lands that

remain in Indian ownership were removed from the Reser-

vation. The State’s argument in this case, therefore, would

yield the anomalous result that some non-Indian land with-

in the Reservation boundaries is part of the Reservation

and some is not, which would complicate the jurisdictional

maze beyond even that caused by the checkerboard pat-

tern of Indian ownership. Because only Congress may al-

ter reservation boundaries, see Solen, 465 U.S. at 470, the

size of (and parcels constituting) the Reservation could

not have been affected by subsequent transfer of lands

from Indians to non-Indians.

* * * x