Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

No. 96-1581 \_/

In THE

Supreme Court of the Unite

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,

_ 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 DUCHESNE COUNTY, UTAH

AND UINTAH COUNTY, UTAH,

AMICI CURIAE, IN SUPPORT OF

PETITIONER, STATE OF SOUTH DAKOTA

JOANN B. STRINGHAM HERBERT WM. GILLESPIE

Uintah County Attorney Duchesne County Attorney

152 East 100 North 500 East 100 South

Vernal, UT 84078 P.O. Box 206

(801) 781-5436 Duchesne, UT 84021

(801) 738-2435

Counsel of Record

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................... RE Rae mince ii

INTEREST OF AMICI CURIAE ............................. fs he l

SUMMARY OF ARGUMENT ...............................0.......... 2

I ci nciccdn niuslicdia etiam estntteaiciaininnantabdads aw ee 3

I. THE POST-HAGEN ARGUMENT OF THE

UNITED STATES IS WITHOUT MERIT....... 3

A. Preliminary Correction of Serious Misstate-

ment by the United States ............00000....... | 3

B. Preliminary Observations Regarding the

Submissions and the Decisions in Seymour,

Mattz, DeCoteau, Rosebud, Solem, and

ESI Lee Se - OO 2 a

C. Chronological Response to the Post-Hagen

Argument Submitted by the United States... 5

D. This Court’s Opinion in Hagen Does Not

Support the Post-Hagen Argument of the

United States -................... Ss diduittiteclisitabhadie 24

E. The United States has Abandoned the Classic

“Checkerboard Jurisdiction” Argument....... 29

CUEEIUEEUIUEE | siscidiniserevcinibidgnpinianiandetvelagans ra a 30

ii

TABLE OF AUTHORITIES

CASES: Page

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

i a caeiocrmeunons passim

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

Mattz v. Arnett, 412 U.S. 481 (1978) .................... 2

Pittsburg & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (10th Cir. 1990), cert. denied,

BE Ne I I cco ctsidacocsocsnpenentvnsiovcnts 5, 26, 28, 30

Rosebud Sioux Tribe v. Kneip, 480 U.S. 584 ‘

EI citi clncdaatihdcigtihihlaconansiiahcianistineltetidggentatn-esecementstanted passim

Seymour v. Superintendent, 368 U.S. 351 (1962) ..2, 24, 29

Solem v. Bartlett, 465 U.S. 463 (1984) ................... 2, 4, 21

State v. Hagen, 858 P.2d 925 (Utah 1992) ............ 5

State v. Perank, 858 P.2d 927 (Utah 1992) ....5, 13, 14, 18

United States v. Cuch, 79 F.3d 987 (10th Cir.

1996) cert. denied, 117 S.Ct. 384 (1996) ........... 5

United States v. Duncan, 857 F.Supp. 852 (D.

BNE SII. snssccevcsanbchecnigteeaiseincindinsesequainsenmeccetidbeiichnanccene 5

Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th

Cir. 1985) cert. denied, 479 U.S. 994 (1986)... 5, 14,

26, 29

Ute Indian Tribe v. Utah, 985 F.Supp. 1473 (D.

i a co diesidendocnisininiednesunenes 1,6

Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir.

1997) reh’g denied (July 1, 1997) .................-... 2,6

STATUTES:

Act of May 27, 1902, ch. 888, 32 Stat. 245 ................. 14

Act of March 3, 1905, ch. 1479, 33 Stat. 1048 ............ 14

ae ee 1, 28

OTHER AUTHORITIES:

Minutes of Councils Held by James McLaughlin,

U.S. Indian Inspector, with the Uintah and

White River Ute Indians at Uintah eat

Utah, From May 18 to May 23, 1903 ................... 8, 25

Brief of the United States, Ute Indian Tribe v.

Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc)

Us Is oi ci pecccndanvennecenndtonens 29

iii

TABLE OF AUTHORITIES—Continued

Memorandum in Support of Renewed Motion for

Injunctive Relief, Ute Indian Tribe v. Utah (D.

Utah July 31, 1992) (No. C-75-408-J) 20000000...

Tribe’s Brief in Support of Permanent Injunction,

Ute Indian Tribe v. Utah (D. Utah Sept. 24,

ES a ee eee

Tribe’s Reply Brief in Support of Permanent In-

junction, Ute Indian Tribe v. Utah (D. Utah

Dec. 10, 1992) (No. C-75-408-J) 00.0...

United States’ Memorandum as Amicus Curiae in

Support of Ute Indian Tribe’s Motion for In-

junctive Relief, Ute Indian Tribe v. Utah (D.

Utah Nov. 23, 1992) (No. C-75-408-J) 0...

Brief of Petitioner, Hagen v. Utah, 510 U.S. 399

I

Brief for the United States as Amicus Curiae,

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

BRASIL ELAS CER Bite lees aN eos

Brief of Amicus Curiae Ute Indian Tribe in Sup-

port of Petition for Rehearing, Hagen v. Utah,

Page

11

12

4, 20

510 U.S. 399 (1994) (No. 92-6281) 3, 16, 27

Motion of Ute Indian Tribe to Intervene as a Mat-

ter of Right, Hagen v. Utah, 510 U.S. 399

EIT Ee Ee

Brief of Amicus Curiae Ute Indian Tribe in Op-

position to Granting the Writ of Certiorari,

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

ER AUER naib Oe ee © Re ea

Transcript of Oral Argument, Hagen v. Utah, 510

13

U.S. 399 (1994) (No. 92-6281) . 10, 19, 22

Brief for the United States as Amicus Curiae in

Support of Plaintiffs-Appellees, Yankton Sioux

Tribe v. Southern Missouri Waste Management

Dist., 99 F.3d 1489 (8th Cir. 1996) (No. 95-

ss SS SP ER ES SSE a eee CAN,

INTEREST OF AMICI CURIAE

Duchesne County, Utah, and Uintah County, Utah, as

Amici Curiae in Support of the State of South Dakota,

file this brief with the Court for a limited purpose. The

Counties want to specifically direct the Court’s attention

to an argument submitted below by the United States that

is premised on an overly restrictive view of the decision

of this Court in Hagen v. Utah, 510 U.S. 399 (1994).

According to this new post-Hagen argument, even if an

act was intended to diminish or disestablish a reservation

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. The argument ignores the fact that when

trust title to an allotment is extinguished and passes into

fee status, it would otherwise cease to be Indian country.

18 U.S.C. § 1151(c). DeCoteau, 420 U.S. 425, 427 n.2,

446-447. It also ignores special acts and other federal

orders directed to fee lands, inconsistent with continuing

reservation status. As a result, title searches would be re-

quired to determine jurisdiction, rather than the routine

fee/trust checkerboard identifications of the past. A title

search requirement of this nature would be unprecedented

and completely unworkable. Neither Hagen nor any other

decision of this Court supports this claim. The Counties

think that the State of South Dakota will prevail on the

merits in this case. As a result, this post-Hagen argument

will be implicated and it deserves additional attention.

Duchesne County, Utah, and Uintah County, Utah are

in a favorable position to offer views in response to this

argument of the United States for two reasons. First, as

amici curiae participants in Hagen and Hagen-related

litigation for almost two decades, the Counties are as

familiar as the United States with the submissions and the

record in Hagen and similar cases. Secondly, the United

States initially submitted this argument in the Tenth Cir-

cuit, as amicus curiae, in post-Hagen proceedings in which

the Counties are parties. See Ute Indian Tribe v. Utah,

2

935 F.Supp. 1473 (D. Utah 1996) and Ute Indian Tribe

v. Utah, 114 F.3d 1513 (10th Cir. 1997), reh’g denied,

(July 1, 1997), where this argument recently received

favorable consideration, after 40 months of needless post-

Hagen litigation, which is not over yet.

As a result, the argument is of more than just passing

concern in Duchesne County, Utah, and Uintah County,

Utah (and in every county similarly situated). In due

course, Duchesne County and Uintah County intend to

seek relief from the Tenth Circuit litigation by filing a

petition for a writ of certiorari in this Court, which will

also further address this argument and other related

points. In the meantime, the Counties thought the argu-

ment should be brought directly to the attention of this

Court.

SUMMARY OF ARGUMENT

The post-Hagen argument of the United States 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. This argument is

pure sophistry. and it flies in the face of the submissions

and decisions ir. Seymour v. Superintendent, 368 U.S. 351

(1962); Maitz 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. Utah, 510

U.S. 399 (1994).

In addition, the United States concedes that after the

post-Hagen argument is recognized, implementation will

require fitle searches, instead of the routine fee/trust

checkerboard identifications that have been in place for

decades in these areas and in areas similarly situated. Br.

for United States as Amicus Curiae in Supp. of Plaintiffs-

Appellees, Yankton Sioux Tribe v. Southern Missouri

Waste Management Dist., 99 F.3d 1439 (8th Cir. 1996)

(96-1581). In a Petition for Rehearing in this Court in

Hagen, even the Ute Indian Tribe acknowledged that this

scenario promised nightmarish consequences and would

3

be completely unworkable. Br. of Amicus Curiae Ute

Indian Tribe in Supp. of the Pet. for Reh’g, Hagen v.

Utah, 510 U.S. 399 (1994) (92-6281). Hagen does not

support this argument. No decision of this Court supports

this argument. The decision of this Court in this case

should make that point unmistakably clear.

ARGUMENT

I. THE POST-HAGEN ARGUMENT OF THE UNITED

STATES IS WITHOUT MERIT.

A. Preliminary Correction of Serious Misstatement by

the United States.

In this case, the United States first introduced a version

of this argument in the court of appeals by way of a

footnote in the Brief for United States at 17 n.6, Yankton

Sioux Tribe, (No. 95-2647). The United States did not

participate in the district court. The entire argument is

set forth as follows:

“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 reliance on Articles I and I

of the 1892 Agreement for the proposition that the

Reservation was diminished can extend no further

than those unallotted lands. The other lands owned

by non-Indians on the Reservation presumably 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 Reservation. The State’s

argument in this case therefore, would yield the

anomalous result that some non-Indian land within

the Reservation boundaries is part of the Reserva-

tion and some is not, which would complicate the

jurisdictional maze beyond even that caused by the

checkerboard pattern of Indian ownership. Because

only Congress may alter reservation boundaries, see

4

Solem, 465 U.S. at 470, the size of (and parcels con-

stituting) the Reservation could not have been af-

fected by subsequent transfer of lands from Indians

to non-Indians.

Id. at 17 n.6.

At the outset, a critical misstatement by the United

States with respect to the “State’s argument” must be ad-

dressed. In this footnote, the United States clearly suggests

that the “State’s argument” would yield an “anomalous

result” and the “State’s argument” should be rejected for

that reason. Id. The State of South Dakota has never

made the argument the United States suggests and neither

has any other State. To the contrary, the States have

always maintained that only trust land remains Indian

country after the diminishment or disestablishment of a

reservation area. See generally Pet. Br. at 3 n.2. The

balance of the footnote is simply the result of the post-

Hagen argument of the United States. Apart from the

fact that the post-Hagen argument lacks merit as dis-

cussed below, the tact adopted by the United States in

this instance to support its position is not acceptable. The

Counties respectfully submit that it should not be repeated

in the briefs to this Court. If the United States chooses

to make an argument, that argument can be made, but

the State’s argument (or anyone else’s) should not be mis-

stated as a part of the process.

B. Preliminary Observations Regarding the Sub-

missions and the Decisions in Seymour, Mattz,

DeCoteau, Rosebud, Solem, and Hagen.

One overall observation should be kept in mind in

assessing the merits of the post-Hagen argument of the

United States. The submission and the decisions in

Seymour, Mattz, DeCoteau, Rosebud, Solem, and Hagen

are all premised on a trust land/fee land jurisdictional

distinction that would be the result in a diminished or

disestablished portion of a reservation area. The briefs

and oral arguments in each of the cases support this con-

clusion. And the decision in each of the cases confirms

5

that understanding. But for the Tenth Circuit’s unprece-

dented decision accepting the post-Hagen position of the

United States in spite of all of this, the argument would

hardly seem to have merited any more than a summary

response. In that light, however, the position deserves the

more detailed analysis that follows.

C. Chronological Response to the Post-Hagen eentid

ment Submi‘ted by the United States.

An appropriate response to the post-Hagen argument

of the United States should begin by addressing, in se-

quence, the argument as it was presented. In this in-

stance, we therefore begin with the Utah submissions

subsequent to the decision of this Court in Hagen.

1. Introduction. Over four years ago, this Court

granted certiorari to resolve a direct conflict between

decisions of the Tenth Circuit Court of Appeals and the

Supreme Court of Utah. In Ute Indian Tribe v. Utah,

773 F.2d 1087 (10th Cir. 1985), cert. denied, 479 US.

994 (1986), the Tenth Circuit concluded, in a divided

en bane opinion, that the original boundaries of the

Uintah Indian reservation had not been diminished. In

State v. Hagen, 858 P.2d 925 (Utah 1992) and State v.

Perank, 858 P.2d 927 (Utah 1992), however, the Su-

preme Court of the State of Utah reached the opposite

conclusion.

In Hagen, this Court considered those competing argu-

ments and concluded that the Uintah reservation had in

fact been diminished. Panels of the Tenth Circuit subse-

quently recognized, in passing, the extent to which Hagen

undermined the holding and rationale of Ute Indian Tribe.

United States v. Cuch, 79 F.3d 987 (10th Cir. 1996),

cert. denied, 117 S.Ct. 384 (1996). See also United

States v. Duncan, 857 F.Supp. 852 (D. Utah 1994).

(And even before Hagen, the panel in Pittsburg & Mid-

way Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th

Cir. 1990), cert. denied, 498 U.S. 1012 (1990) noted

some fundamental problems with Ute Indian Tribe, as this

Court subsequently recognized). Hagen, 510 U.S. at 414.

6

But in Utah, by following the lead of the United States,

as amicus curiae, the district court once again missed its

usual way on this exact same question—this time adopting

the post-Hagen argument. Unfortunately, the court of

appeals also adopted the views of the district court (just

like the en banc majority mistakenly did in Ute Indian

Tribe). As a result, in the final analysis the Tenth Circuit

Court of Appeals incredibly acknowledged that an un-

precedented “title search” will be necessary to effectuate

the allocation of jurisdiction throughout the hundreds of

thousands of acres of the original Uintah reservation.

Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir.

1997), reh’g denied, unpublished order (June 1, 1997).

Even the Ute Indian Tribe had previously admitted before

to this Court that this “title search” approach promises

an absolutely unmanageable nightmare. Moreover, it

would be a nightmare never before carried out anywhere

in the United States.

The legal issues were relatively straightforward with

respect to the post-Hagen argument. Nevertheless, for

over 25 months, the district court in Utah, at the urging

of the United States, resisted the mandate of this Court,

and then issued a ninety-six page Memorandum Opinion

that wholly obscures an otherwise fairly simple question.

Ute Indian Tribe v. Utah, 935 F.Supp. 1473 (D. Utah

1996). In Hagen, this Court squarely rejected the previ-

ous views of the United States and the same district court

specifically with respect to the status of the original

Uintah reservation. Now, the United States and the same

district court have somehow convinced a panel of the

Tenth Circuit that, in the process, this Court granted

certiorari only to fashion a very limited opinion in Hagen,

but that Hagen also created a jurisdictional nightmare in

practical terms. This is clearly not the case.

According to this novel argument, this Court intended

Hagen to undermine the most basic premise of all previ-

ous disestablishment/diminishment decisions: namely, that

7

surplus land statutes either disestablished original reserva-

tion boundaries and left remaining trust land as Indian

country /reggrvation, or they did not.

Yet, it was because of a recognition of this fundamental

premise that the Ute Indian Tribe told this Court in

Hagen:

[T]he Utah Supreme Court held that the Uintah

Valley Reservation had been diminished by its open-

ing to settlement, finding that the Reservation con-

sists only of those lands held in trust by the United

States for the Tribe or individual Indians. .. . [i]f

this Court were to alter the boundaries of the

Reservation. Such a judgment would reduce the Res-

ervation by almost three million acres and deprive

the Tribe and the United States of all civil and crim-

inal jurisdiction over the non-trust lands of the Uintah

Valley portion of the Reservation.

Mot. of Ute Indian Tribe to Intervene as a Matter of

Right at 4-5, 7, Hagen v. Utah, 510 U.S. 399 (1994)

(No. 92-6281) (emphasis added) (footnote omitted).

The United States told this Court the same thing.

Later, the United States and the Ute Tribe adopted a

novel position which instead assumes that in addition to

the trust land, a substantial amount of non-Indian fee land

is still within original reservation boundaries which this

Court in Hagen intended to leave intact. The post-Hagen

argument is completely untenable. It is contrary to what

the Ute Indian Tribe and the United States repeatedly

told this Court. And not a single case can be cited in

support of this proposition.

To argue that this Court would adopt such a radical

departure in its disestablishment/diminishment precedent,

without even mentioning that fact in the text of the Hagen

opinion, is pure sophistry. This analysis also expressly

conflicts with other precedent the Court repeatedly cited

throughout the Hagen opinion. Apparently, the Tenth

Circuit panel failed to clearly see what the district court

was actually suggesting and in so doing lost sight of the

real issue.

As a result, the decision in the Utah case is the first

case in the history of this type of litigation to leave sub-

stantial non-Indian fee lands within original reservation

boundaries after an area had been restored to the public

domain—in other words, after the area has been the

subject of this type of a disestablishment surplus land

statute.

If the Court of Appeals in the Tenth Circuit had ad-

dressed, or at least noted, that portion of the Hagen opin-

ion that set forth Inspector McLaughlin’s “picturesque

phrase” with special emphasis, it could not have recog-

nized any such reservation boundary:

Contemporary historical evidence supports our con-

clusion. . . . Inspector McLaughlin explained the

effect of these recent developments to the Indians

living on the Reservation. . . . “ “You say that [the

Reservation boundary] line is very heavy and that

the reservation is nailed down upon the border.

That is very true as applying to the past many years

and up to now, but congress has provided legisla-

tion which will pull up the nails which hold down

that line and after next year there will be no outside

boundary line to this reservation.’” . . . Inspector

McLaughlin’s picturesque phrase reflects the con-

temporaneous understanding. . . .

Hagen, 510 U.S. at 416, 417 (1994) (quoting and add-

ing emphasis to Minutes of Councils Held by James

McLaughlin, U.S. Indian Inspector, with the Uintah and

White River Ute Indians at Uintah Agency, Utah, From

May 18 to May 23, 1903).

This Court in Hagen set forth this quote in the text of

the Hagen Opinion in support of its “conclusion,” includ-

ing the bracketed language and the added emphasis. With

“no outside boundary line to this reservation,” all related

CO

9

precedent in this Court dictated that the diminished reser-

vation “boundary” would coincide with the trust lands in

the area, as the United States and the Ute Indian Tribe

recognized and told this Court at the time, as noted above.

Id. Fee lands could not possibly still be within Indian

country/reservation, as the Tenth Circuit court of appeals

panel erroneously concluded.

Inspector McLaughlin’s “picturesque phrase” (“pull up

the nails . . . outside boundary”) also establishes the

proper historical prospective from which the new argu-

ments of the United States and the Ute Indian Tribe

should have been viewed. This Court’s bracketed lan-

guage and added emphasis underscore the significance of

the point and undermine the novel proposition: namely,

that the historic boundaries of the Uintah Valley reserva-

tion continue to exist, even after a restoration of the area

to the public domain, in such a manner as to encompass

these other fee lands (predominately owned by non-

Indians) as well as the National Forest.

As a result, despite the clear language of Hagen evinc-

ing a termination of the historic reservation boundaries,

the panel in the Tenth Circuit did not enter a judgment

consistent with the decision in Hagen. Instead, the panel

accepted the novel argument which preserves the historic

boundaries of the Uintah reservation. Significantly, this

unique argument not only contradicts nearly a century of

disestablishment/diminishment case law, as noted above,

it also contradicts prior submissions by both the United

States and the Ute Tribe throughout the Ute litigation.

The Ute Tribe and the United States led the Tenth

Circuit Court of Appeals to believe that the disestablish-

ment of the original reservation boundaries had not been

at issue throughout the Ure litigation. As we established,

however, prior submissions of both parties vitiate such a

contention. See supra pp. 2, 8, 9. Indeed, the language

employed by both parties makes clear that they were well

aware that the real issue never changed: Whether the

10

original reservation boundaries were disestablished—trust

lands versus original reservation boundaries.

Consistent with this position, Utah Attorney General

Jan Graham referred to a Map exhibit coded to trust

land and boundaries and explained to this Court in oral

argument:

MS. GRAHAM: [T]he undisputed reservation, which

is 1.2 million acres. . . . [I]n the undisputed

reservation, in the trust lands, on the tribal lands at

Fort Duchesne. .. . [T]here is a reservation there,

a big one, 1.2 million acres . . . because of course

the reservation, the trust lands that are there now

are unchallenged by the State and, of course, always

have been... .

Tr. of Oral Argument at 37, 38, 45, Hagen, 510 US.

399 (1994) (No. 92-6281) (emphasis added).

The Counties submit that this was the “diminished” res-

ervation referred to by Hagen.

On the other hand, the United States has parlayed casual

references by this Court and the parties to a “diminished”

reservation, intended only to summarily describe this trust

land, into an argument that assumes continuing historic

reservation “boundaries” that encompass all non-Indian

fee lands, except those actually homesteaded. The atten-

tion of this Court is warranted here to address this im-

portant and far reaching misreading of the decision of

the Court in Hagen.

The public domain restoration language of the Act

which opened the reservation for settlement was directed

to “all unallotted lands.” As such, it was not intended

to simply remove only those lands from reservation status.

Instead, this restoration extinguished the historic reserva-

tion boundaries.

2. Specific Descriptions in the Hagen Submissions

Clarify the Trust/Fee Jurisdictional Distinction and Un-

dermine the Post-Hagen Argument of the United States.

11

(a) Descriptions Employed by the United States and

the Ute Indian Tribe in Hagen.

Immediately after Perank/Hagen was decided by the

Utah Supreme Court, the Ute Tribe repeatedly told the

United States District Court in Utah exactly what was at

issue: the disestablishment of the original reservation

boundaries, leaving only trust land as Indian Country. It

is true that after Hagen was decided in this Court, they

changed their argument, but what they said before Hagen

is telling. On July 31, 1992, the Ute Indian Tribe

submitted:

The State Supreme Court's decision, . . . holds that

the Uintah Valley Reservation was disestablished,

except for those lands which are held in trust by the

United States for the benefit of the Tribe.

Mem. in Supp. of Renewed Mot. for Injunctive Relief at

8, Ute Indian Tribe v. Utah (D. Utah July 31, 1992)

(No. C-75-408-J) (footnote omitted) (emphasis added).

~ The State court’s judgment reduces, by almost three

million acres, the criminal jurisdictional boundaries

of the United States and Tribe.

Id. at 9 (footnote omitted) (emphasis added) .*

The State law would subject tribal members who

commit _Offenses off trust land to state criminal

prosecution.

Id. at 10 (emphasis added).

Two months later, in September, 1992,

[T]he State Supreme Court ruled that the Reserva-

tion was disestablished, except for those lands held

in trust for an individual Indian or the Tribe.

1The Ute Tribe assumed the legal conclusion in Perank, if

affirmed, would also undermine the continuing existence of the

original Uncompahgre reservation. This point and the fact that

the United States conceded that the Uncompahgre reservation no

longer exists, is briefly discussed infra.

12

Tribe’s Br. in Supp. of Permanent Inj. at 8, Ute Indian

Tribe v. Utah (D.Utah Sept. 24, 1992) (No. C-75-408-J)

(emphasis added).

If permitted to be entered as a final judgment, State

v. Perank would reduce the boundaries of the Uintah

and Ouray Reservation, and, thus, the jurisdictional

territory of the Tribe, under State law, to approxi-

mately /./ million acres of trust land.

Id. at 3 (footnote omitted) (emphasis added).

The question common to both actions was whether

Congress intended to disestablish the Reservation.

Id. at 12 (emphasis added).

And then, in December, 1992, the Ute Tribe reiterated

the same points in no uncertain terms:

[T}jhe trial court had concluded that Clint Perank

was an Indian and that Myton, Utah (as weil as all

non-trust lands) were outside the boundaries of the

Reservation. .. .

Tribe’s Reply Br. in Supp. of Permanent Inj. at 9, Ute

Indian Tribe v. Utah (D.Utah Dec. 10, 1992) (No. C-75-

408-J) (emphasis added).

[Tjhe same arguments in support of its position

that the Reservation had been disestablished as it

advanced. ...

Id. at 17 (emphasis added).

[S]eized upon the opportunity to challenge the Tenth

Circuit’s decision that, with two exceptions not rele-

vant to these proceedings, the Reservation had not

been disestablished.

Id. at 18 (emphasis added).

The views of the United States were submitted to the

district court at approximately the same time. In Novem-

ber, 1992, the United States unequivocally addressed this

issue in similar terms:

13

On July 17, 1992, the Supreme Court of Utah held

in State v. Perank, 191 Utah Adv. Rep. 5 (1992),

and two companion cases that the exterior bound-

aries of the Uintah and Ouray Indian Reservation

(hereinafter “Reservation”) have been disestablished.

The state court ruling directly conflicts . . .

United States’ Mem. as Amicus Curiae in Supp. of Ute

Indian Tribe’s Mot. for Injunctive Relief at 2, Ute Indian

Tribe v. Utah (D.Utah Nov. 23, 1992) (No. C-75-408-J)

(emphasis added) (footnote omi‘ted).

Nor did the Ute Indian Tribe or the United States

confine their views confirming the scope of the issue de-

cided by the Utah Supreme Court to submissions in fed-

eral district court. The Ute Indian Tribe told this Court

the same thing for other reasons in opposing certiorari in

Hagen in November, 1992:

[T]he issue of whether Congress intended to dis-

establish the Uintah Valley Reservation, Utah.

Br. of Amicus Curiae Ute Indian Tribe in Opp’n to Grant-

ing the Writ of Certiorari at i, Hagen, 510 U.S. 399

(emphasis added).

The current controversy, in which the Tribe was

not invited to, and, heretofore, did not, participate,

threatens to diminish by more than three million

acres the jurisdictional territory of the Tribe. .. .

Id. at ii (emphasis added).

It was in this light that this Court, fully informed,

granted the petition for certiorari, notwithstanding the

opposition of the Ute Indian Tribe.

The United States, consistent with all previous sub-

missions, also viewed the issue in the same light. How-

ever, the United States agreed that certiorari should be

granted in Hagen because plenary review was appropriate.

The review, according to the United States, would resolve

the conflict between the views expressed by the Utah

14

Supreme Court and the Ute Indian Tribe decision. The

United States posed the question in the following manner:

In Perank, the Utah Supreme Court concluded that

the May 1902 Act and the March 1905 Act dimin-

ished the Uintah Indian Reservation and that the

town of Myton accordingly lies outside the bound-

aries of the Reservation.

Br. for the United States as Amicus Curiae, at 5, Hagen,

510 U.S. 399 (citing Respondent’s Br. App. at 289-639,

State v. Perank, 858 P.2d 927 (Utah 1992)).

The decision of the Utah Supreme Court in this

case conflicts with the resolution of the same ques-

So a ee ee

appeals . .

Id. (citing Ute Indian Tribe v. Utah, 773 F.2d 1087,

1088-89 (10th Cir. 1985) (en banc), cert. denied, 479

U.S. 994 (1986) ).

On the merits, the Ute Indian Tribe next filed a motion

to intervene as a matter of right in this Court in May,

1993. Again, the Ute Tribe repeatedly recognized, em-

phasized, and stressed the scope of the issue presented:

This case will determine for all time the exterior

boundaries of the Uintah and Ouray Reservation

(hereafter the “Reservation”), which is located in

northeastern Utah. . . . [AJn issue that will finally

determine the scope of the jurisdiction. .. .

Mot. of Ute Indian Tribe to Intervene as a Matter of

Right at 2, Hagen, 510 U.S. 399.

The ruling of the Tenth Circuit recognized that the

Tribe’s jurisdiction extends to some 4.4 million

acres the Utah Supreme Court held that the

Uintah Valley Reservation had been dimished by its

opening to settlement, finding that the Reservation

consists only of those lands held in trust by the

United States for the Tribe or individual Indians.

The ruling of the Utah Supreme Court has the effect

15

of reducing the size of the Reservation, and corres-

pondingly the area over which the Tribe may exercise

jurisdiction, by approximately three million acres.

Id. at 4-5 (emphasis added).

Such a judgment would reduce the Reservation

by almost three million acres and deprive the Tribe

and the United States of all civil and criminal juris-

COS Oe SS OSs Se Se eae ee

ion of the Reservation. More importantly, be-

cause of the “checkerboard” nature » Mhye. owner-

patterns, a judgment reducing boundaries

of the esredion would result in a tract-book search

to determine both civil and criminal jurisdiction.

Id. at 7-8 (emphasis added) (footnote omitted ).

[T]ribal members would, if the Reservation were to

be adjudged diminished, be subjected to criminal

on non-trust lands of the Reservation. See DeCoteau

v. Districe County Court, 420 U.S. 425 (1975).

Third, tribal memibers residing on non-trust lands

of the Reserwation would no longer be able two avail

themselves of tribal court jurisdiction. . . . [Tribal

members sot residing, workimg and locating their

property om itrwsr lands of the Reservation would be

burdened. ...

Id. at 8-9 (emphasis added).

As a practical matier, a diminishmemt of the Res-

ervation would have the effect of creating two distinct

classes of tribal members within the historic bound-

ies of Reservation, those who live on trust

who do wot. Those members who

lands will continue to be subject to

federal law, may make use of tribal courts

and may participate in tribal government. However,

those tribal members who now reside on non-frust

lands of the Reservation . . . become persons subject

to the jurisdiction of the State of Utah.

Id. at 9 n.5 (emphasis added).

16

[T}he boundaries of the Reservation would no longer

be at issue... .

Id. at 10 n.7.

The Court denied the Motion to Intervene.

In June, 1993, the Ute Indian Tribe then submitted its

brief amicus curiae in this Court. For the third time, the

Ute Indian Tribe described to this Court the issues in the

same manner:

There Is No Statutory Language of Termination,

Abolishment or Cession in the Act Opening the

Uintah Valley Reservation to Settlement by Non-

Indians.

Br. of Amicus Curiae Ute Indian Tribe at i, Hagen, 510

U.S. 399 (emphasis added).

[Tjhe Unallotted Lands Were Not Disestablished.

Id. at ii (emphasis added).

[T]he boundaries of the Uintah Valley Reservation

are at issue in this action.

Id. at | (emphasis added).

[T}he 1905 Act did not disestablish the Reservation.

Id. at 2 (emphasis added).

[T}he 1905 Act opened the Reservation and that

the Act did not disestablish the Reservation, the

Utah Supreme Court reached a contrary result... .

[T]he court found, in diametric opposition to the

federal courts that previously had considered the

issue, that the Uintah Valley Reservation had been

disestablished.

Id. at 6 (emphasis added) (footnote omitted).

This Court granted the petition for writ of cer-

tiorari to review the Utah Supreme Court's resolu-

tion of the reservation-boundary issue because it

irreconcilably conflicts with the prior decisions of

the federal courts on the same issue.

Id. at 7 (footnote omitted ).

17

{[T}he Court has acknowledged that, in a limited

number of circumstances, Congress intended a par-

ticular surplus land Act to disestablish the

area from the affected reservation. See Rosebud

Sioux Tribe v. Kneip, 430 . 584 (1977); De-

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

(1975).

Congressional intent determines when a particular

surplus land Act disestablished unallotted lands... .

Id. at 9 (emphasis added).

While a decision that the Reservation has been dis-

established would subject Indians to the full panoply

of state law for conduct on non-trust lands... .

Id. at 10 n.11 (first and last emphasis added).

[L]egislative history of the 1905 Act parallels that

of the 1892 Act which this Court held did not effect

a disestablishment of the Klamath River Reserva-

tion. Here, as this Court pointed out in Mattz,

“Congress was fully aware of the means by which

termination could be effected.” Id. at 504. But clear

termination language was not employed in the 1905

Act.

Id. at 23 n.24 (last emphasis in original).

Moreover, McLaughlin's discussions with the Utes

focused on opening the Reservation pursuant to the

manner prescribed in the 1902 Act. See id. at 1.

As discussed above, the Reservation was opened in

the manner prescribed in the 1905 Act. Therefore,

any discussions between McLaughlin and the Utes

were irrelevant except to the extent, if any, that they

influenced Congress to abandon any intent it may

have had to disestablish the Reservation.

Id. at 25 n.25 (emphasis added).

After this Court granted the petition for certiorari, the

United States also repeated the arguments made initially

in this Court in Ute Indian Tribe. At this point, the issue

was still described in the same terms:

18

QUESTION PRESENTED: Whether the provisions

of the Act of May 27, 1902, ch. 888, 32 Stat. 245,

and the Act of Mar. 3, 1905, ch. 1479, 33 Stat.

1048, that relate to settlement of non-Indians on the

Uintah Indian Reservation altered the boundaries of

the Reservation... .

Br. for the United States as Amicus Curiae supp’g Pet'r

at i, Hagen, 510 U.S. 399 (No, 92-6281) (emphasis

added ).

This case involves the boundaries of the Uintah

Indian Reservation. The location of the boundaries

affects the scope of the law enforcement obligations

and powers of the United States under the Indian

Major Crimes Act, 18 U.S.C. 1153, and other fed-

eral statutes that apply only in Indian country.

Id, at 1.

{T]he Utah Supreme Court concluded that the pro-

visions of the 1902 Act and the 1905 Act opening

lands to non-Indian settlement diminished the Uintah

Indian Reservation and that the town of Myton

accordingly lies outside the boundaries of the

Reservation.

Id. at 7 (emphasis added) (citing Respondents Br. App.

at 28a-63a, State v. Perank, 858 P.2d 927 (Utah 1992)).

Like several of this Court’s previous cases, the pres-

ent controversy turns on the effect of a surplus land

Act opening an Indian reservation to settlement by

non-

Id. (emphasis added).

The operative language here and in those cases con-

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.

Id. at 15 (citing DeCoteau, 420 U.S. at 445) (emphasis

added).

19

{T)here is no document in this case that establishes

the “unmistakable baseline purpose of disestablish-

ment” that was so important to the Court... .

Id. at 23 (emphasis added) (citing Rosebud Sioux Tribe

v. Kneip, 430 US. at 592).

[T]he Indians in this case steadfastly refused to

consent to any alteration of the Reservation bound-

aries... .

Id. at 23 (emphasis added).

{T}he Utah Supreme Court erred in relying (Resp.

AP. at He Ay age McLaughlin’s advice to

ndians that “there will be no outside boundary

line to this reservation.”

Id. at 23 n.31 (emphasis added) .*

Although the Ute Indian Tribe did not participate in

Oral Argument before this Court, the United States did.

Nothing in the Transcript of Oral Argument supports the

post-Hagen position of the United States:

QUESTION: .. . speaking of restoration to the

public domain, if land had been restored, would the

reservation boundary be excluded. .. .

Tr. of Oral Argument at 18, Hagen, 510 U.S. 399 (em-

phasis added).

MR. MANN: . . . the language would not have

been sufficient to alter the boundaries of the

reservation.

Id. (emphasis added).

(b) Language employed by the Petitioner in Hagen.

The preceding extended discussion of the views of the

Ute Indian Tribe and the United States fairly reflects the

issue as submitted and decided in the Utah Supreme

Court and in this Court. In all respects, the views of the

* This Brief of the United States is reproduced in the A i

ppendix

to the Brief for Charles Mix County at the petition stage of these

proceedings.

20

parties and other amici mirror this understanding. There

is no need in this brief to further document that position,

however, with one exception. That exception involves the

arguments of Petitioner in Hagen. Petitioner’s views are

noteworthy in this regard because they were submitted by

former attorneys of record for the Ute Indian Tribe in-

volved in the federal district court, the court of appeals,

and this Court in opposing certiorari in the Ute Indian

Tribe litigation. As such, these arguments reflect a

familiarity with all aspects of the disestablishment issue

in Ute Indian Tribe and Hagen. This is the perspective

from which Petitioners’ submissions on the merits in

Hagen should be viewed:

[Hagen] had lived for five to six years on the Ute

Reservation on nontrust land in the vicinity of

Myton, Utah.

Br. of Pet. at 4, Hagen, 510 U.S. 399 (emphasis added).

[T]he issue of Uintah Valley Reservation disestab-

lishment. . . .

Id. at 5 (emphasis added).

The status of the Uintah Valley Reservation was

the focus of attention, not the periphery of concern

in the federal court litigation.

Id. at 16-17 (emphasis added).

If the Court upholds the State of Utah Supreme

Court decision of July 17, 1992, then the State of

Utah and its subdivisions will exercise general civil

and criminal jurisdiction over Indians whenever they

are located off trust lands.

Id. at 29 (emphasis added).

Boundaries Are Not Abolished When Indians and

NonIndians Are Encouraged to Live Side by Side.

. . « [I]t will be helpful to review briefly the Court's

five disestablishment cases.

Id. at 32 (emphasis added).

[OJ]ne was found to have diminished the reservation

in question. That conclusion was reached in De-

21

Coteau, 420 U.S. at 446, because the Court... . the

Indians and the United Statcs both were satisfied

that the mere retention of allotments, rather than

the retention of the reservation boundary, would

provide an adequate “fulcrum for tribal affairs.”

Id. at 33 (emphasis added) (footnote omitted).

The plan selected by Congress to ultimately open the

Uintah Valley Reservation lacked the two critical

characteristics found by the Court to have accom-

plished a reservation extinguishment.

Id. at 37 (emphasis added).

The State of Utah keeps trying, without success, to

sell the federal courts on the hypothesis that the

predecessor 1902 Act, simply because it included

the phrase “restored to the public domain,” estab-

lished a baseline intent to disestablish which was car-

ried forward in the 1905 Act which actually opened

the Reservation.

Obviously, this comparison confirms that the Ute

Indians, unlike the Rosebud Sioux (Rosebud, supra)

and the Sisseton-Wahpeton Sioux (DeCoteau, supra)

were unwilling to abandon and vacate the Uintah

: Valley Reservation. . . . The Utah Supreme Court

improperly analyzes a portion of the 1903 McLaugh-

lin report as evidence of an intent to surrender the

Reservation boundary.

Id. at 43 n.24 (emphasis added).

[I]t is entirely unfair (and inaccurate after Solem)

for Utah to contend that restoring Indian lands to

the public domain in and of itself extinguishes a

reservation boundary. .. .

Id. at 48 (emphasis added).

In the Reply Brief, the views of Petitioner reflect the

same position:

Before the Court today, Utah seeks a ruling that,

in fact, the boundaries of the Uintah ‘alley Reserva-

22

tion were disestablished . . . . federal courts pre-

serving the boundary of the Uintah Valley Reser-

vation. ...

Id. at 2 (emphasis added).

A review of the 1902-1905 Acts at issue here

shows that unlike Rosebud and DeCoteau, the open-

ing of Ute lands was made with no reference to an

agreed cession of Reservation boundaries. Nor do

the 1902-1905 Ute Acts describe the Reservation

as “vacated,” “discontinued” or “abolished’”—lan-

guage which Congress has used elsewhere to termi-

nate a Reservation.

Id. (emphasis added).

This appeal will determine whether the State of

Utah criminal justice system (as opposed to federal

and tribal courts) will prosecute Indians committing

crimes on . . . presently owned in fee by nonIndians.

Regardless of the outcome of this case, federal and

Tribal courts will continue to prosecute Indians on

. . » lands retained by the Ute Indian Tribe for its

members.

Id. at 16-17 (emphasis added).

At oral argument, the same counsel for Petitioner on

the merits briefs supra, (that represented the Ute Indian

Tribe in the district court, the court of appeals, and before

this Court in opposing certiorari in the Ute Indian Tribe

litigation), presented the issue in even more succinct

terms:

MR. SENECA: [T]he question presented is whether

or not the boundary of the Uintah Reservation was

disestablished. .. .

Tr. of Oral Argument at 3, Hagen, 510 U.S. 399 (em-

phasis added).

MR. SENECA: ... . Now, it’s couched in terms of

whether or not the reservation was disestablished,

and the reason it’s couched in those terms is that if

23

the reservation boundary had been disestablished,

then Myton, Utah, is not in Indian country... .

Id. at 5 (emphasis added).

MR. SENECA: [T]his Court is going to have to

decide whether or not that reservation boundary has

been distestablished or not.

Id. at 9 (emphasis added).

COURT: [Language of reverting to the public

domain would be treated as diminishing the reserva-

tion boundary.

Id. at 11.

MR. SENECA: Not—not—

Id.

COURT: [Alt a loss to understand what that phrase

could possibly have meant in that statute unless it

meant the diminishment of the reservation.

Id.

COURT: And you're saying that allowing white

settlers to come onto the reservations would be re-

ferred to as restoring the reservation to the public

domain, permitting the entry by white settlers would

be described in that fashion with those words?

Id. at 12.

MR. SENECA: Yes.

Id.

COURT: I cannot imagine that.

Id.

MR. SENECA: [T]he DeCoteau case, where there

was a Clear understanding between the Indians and

the Government that that reservation boundary was

to be vacated, to be disestablished.

Id. (emphasis added).

MR. SENECA: In this instance, there is no such

agreements. In fact, the Ute Indians resisted the

allotment of their reservation all the way. There

24

was never any agreement by the Ute Indian Tribes

to be involved in disestablishment.

Id. at 13 (emphasis added).

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

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

before us is the language of the 1902 act, speaking

of restoration to the public domain, if land had

been restored, would the reservation boundary be

excluded, in your view? Was that language clear

enough under the Seymour case, and DeCoteau, and

some of the others?

Id. at 18 (emphasis added).

Any argument that now maintains that this Court did

not consider the issue and resolve it in this context should

be squarely rejected.

D. This Court’s Opinion in Hagen Does Not Support

the Post-Hagen Argument of the United States.

This Court began its analysis in Hagen v. Utah with

a general observation:

Our cases considering operative language of restora-

tion have uniformly equated it with a congressional

purpose to terminate reservation status.

Hagen, 510 U.S. at 413 (second emphasis added).

And the Court further stated:

Likewise, in Decoteau we emphasized the distinc-

tion between reservation and public dom-in lands:

“That the lands ceded in the other agreements were

returned to the public domain, stripped of reserva-

tion status, can hardly be questioned. . . . The spon-

sors of the legislation stated repeatedly that the rati-

fied agreements would return the ceded lands to the

‘public domain.”” 420 U. S., at 446 (emphasis

added ).

Id. at 413.

The Court later set forth the following quotation in the

text of the Hagen Opinion in support of its conclusion,

including the bracketing and special emphasis:

25

Contemporary historical evidence supports our con-

clusion. . . . Inspector McLaughlin explained the

effect of these recent developments to the Indians

living on the Reservation. . . . “ ‘You say that [the

Reservation boundary] line is very heavy and that the

reservation is nailed down upon the border, That

Is very true as applying to the past many years and

up to now, but congress has provided legislation

which will pull up the nails which hold down that

line and after next year there will be no outside

boundary line to this reservation.” . . . Inspector

McLaughlin’s picturesque phrase reflects - = gpa

temporaneous understanding. . . .

Id. at 416-417 (quoting and adding emphasis to Minutes

of Councils Held by James McLaughlin, U.S. Indian In-

spector, with the Uintah and White River Ute Indians at

Uintah Agency, Utah, From May 18, to May 23, 1903).

The United States now maintains that the resukt in

Hagen does not support diminishment/disestablishment in

any recognized sense. And the United States nevertheless

advances this argument in spite of all of the above.

At bottom, the sole basis for the United States’ support

for this argument is a narrow focus on two sentences in

the Hagen Opinion, taken out of context, and viewed

without any historical perspective whatsoever:

In light of our precedents, we hold that the restora-

tion of unallotted reservation lands to the public

domain evidences a congressional intent with respect

to those lands inconsistent with the continuation of

reservation status. Thus, the existence of such lan-

guage in the operative section of a surplus land Act

indicates that the Act diminished the reservation.

Hagen, 510 U.S. at 414 (emphasis added).

inten Pog? a argument stresses the lack of

a status “with respect to those lands,” (rather

than the lack of reservation status of the area affected )

and “diminished the reservation” (as opposed to a dis-

26

established or terminated the reservation descripiton), it

omits any reference to the “termination” description of

Ute Indian Tribe in the very next sentence. This sentence

in the Hagen Opinion undermines both points and with

them, the entire foundation for the novel post-Hagen

argument.

In context, Hagen states:

In light of our precedents, we hold that the restora-

tion of unallotted reservation lands to the public

domain evidences a congressional intent with respect

to those lands inconsistent with the continuation of

reservation status. Thus, the existence of such lan-

guage in the operative section of a surplus land Act

indicates that the Act diminished the reservation.

Indeed, we have found only one case in which a

Federal Court of Appeals decided that statutory

restoration language did not terminate a reservation,

Ute Indian Tribe, 773 F.2d, at 1092, a conclusion

the Tenth Circuit has since disavowed as “unexam-

ined and unsupported.” Pittsburg & Midway Coal

Mining Co. v. Yazzie, 909 F.2d 1387, 1400, cert.

denied, 498 U.S. 1012 (1990).

Hagen, 510 U.S. at 414 (emphasis added).

First, the Court prefaces the entire paragraph by ex-

pressly referencing “our precedents.” /d. In context, the

complete paragraph makes clear that the Court was not

fashioning or allowing any result that would accommodate

such a novel argument even if it had been advanced and,

of course, it was not. This Hagen “terminate a reserva-

tion” description of the overall issue in Ute Indian Tribe

v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc),

squarely refutes any argument to the contrary. See also

DeCoteau, 420 U.S. 425 (“terminated”).

Subsequent to the decision of Hagen, the Ute Tribe

attempted to submit an amicus curiae brief in support of

the petition for rehearing in this Court. The Court did

not allow the amicus brief to be filed. Counsel for Peti-

27

tioner in Hagen thereafter prom ly resubmitted

text under the caption of a Motion to Supplemen: nae

tion for Rehearing. It was in this form that the new

post-Hagen theory of what was really at issue in Hagen

ee This Court denied the petition without

the Uintah reservation, leavin the his reserv

boundary otherwise intact lentes ae new co

Hagen theory), the submission makes one critical con-

— . This concession, in the Counties’ view, is telling

7 insofar as Practical considerations have any role in

is process. According to the admission, if this new

post-Hagen theory were really the holding of Hagen, “con-

sistent law enforcement” and the “administration of civil

laws would be “virtually impossible” throughout the

entire area. Br. of Amicus Curiae Ute Indian Tribe in

Supp. of the Pet. for Reh’g at 4, Hagen, 510 US 399

We agree. Similarly, according to the submission it

would also be “virtually impossible to bring any con-

tinuity or organization to such regulatory activities as

zoning, liquor regulation and taxation.” Jd. We also

agree. In addition, the submission g0es on to assert that:

The jurisdictional chaos is further j

within the townsites established aie the 1905 Pow

dential Proclamation, the lots that had not been

—- were restored to the Tribe by the 1945

estoration Order. Thus, the State may have juris-

be

may have jurisdiction over the lot next door. Con-

ceivably, a store within a townsite or Roosevelt

City could be located on two lots—one a former

homestead and one a former allotment or parcel

restored to the Tribe. Under such circumstances, the

majority’s decision could result in the absurd situa-

tion of a tribal member being subject to or exempt

from paying State sales taxes depending on the loca-

tion within the store of the item purchased.

Id. at 4-5 (emphasis added) (footnote omitted).

Importantly, the Counties further agree with the hypo-

thetical conclusion in this argument. As stated:

If all of the non-trust lands had been disestablished

from the Reservation, as Utah implied, jurisdictional

determinations would require a tract book search to

discover the trust/non-trust status of the land [De-

Coteau and Rosebud). However, given the various

ies of land existing on the Reservation, under

the majority's decision [new post-Hagen theory] juris-

dictional determinations will require a tract-by-tract

title search in order to ascertain whether a particular

site is homesteaded land, former allotment land now

in fee status, land restored to tribal ownership under

the 1945 Restoration Order, land partitioned under

the Ute Partition Act, present allotted land or tribal

trust land.

Id. at 3-4 (first emphasis added).

In this instance, the submission is absolutely correct.

To the extent that Hagen represents disestablishment/

diminishment in the traditional sense, only trust lands are

Indian country under 18 U.S.C. § 1151(c). In this situ-

ation, trust tract searches are occasionally necessary. Of

course, this result was approved in DeCoteau and Rose-

bud for the reasons there stated. DeCoteau, 420 U.S. at

427 n.2, 446-447, 429 n.3. See also Yazzie, 909 F.2d at

1421-22. However, to the extent that anyone accepts the

new post-Hagen theory, a complete title search would be

necessary for each and every arrest on fee lands through-

out the entire area to determine if the ultimate source of

title was actually homesteaded land. Because the vast

majority of all crimes are committed on these fee lands

(population centers, highways, and so forth) “jurisdic-

tional chaos” would truly result. The Tenth Circuit should

have squarely rejected the new post-Hagen argument.*

E. The United States has Abandoned the Classic

“Checkerboard Jurisdiction” Argument.

Otner arguments of the United States are also plainly

inconsistent with the novel post-Hagen position of historic

reservation boundaries surrounding all but homesteaded

lands. From the beginning, the United States

used the classical “impractical pattern of checkerboard

jurisdiction” argument in resisting reservation “disestab-

lishment.”

[T]o find disestablishment in this case would result

in an “impractical pattern of checkerboard jurisdic-

tion,” Seymour, supra, at 358... .

Br. of the United States at 14-15, Ute Indian Tribe, 773

F.2d 1087 (1985) (en banc) (footnote omitted).

®* Although not an issue here, to the extent that the Tenth Cir-

cuit’s latest decision summarily precludes any reconsideration re-

garding the status of the Uintah National Forest or the original

Uncompahgre reservation (as mistakenly set forth in Ute Indian

Tribe, 773 F.2d at 1089-1093) because of “finality” principles, it is

in further conflict with Hagen.

Considering the very significant observation of this Court in

Hagen that the Tenth Circuit’s en banc opinion altered decades

of “justifiable expectations,” Hagen, 510 U.S. at 421, the balance of

the Tenth Circuit's latest opinion regarding “finality” does not

really ring true. In addition, the views of the Tenth Circuit in this

respect do not reflect any consideration of contrary views noted in

decades of previous federal and state opinions noted by this Court

in Hagen. In this respect, the Tenth Circuit, like the Eighth Cir-

cuit in the instant case, would benefit from additional

from this Court. —

30

Of course, this “checkerboard” argument makes sense

only in the context of trust lands not within reservation

limits as noted in DeCoteau v. District County Court, 420

U.S. 425 (1975) and Rosebud Sioux Tribe v. Kneip, 430

U.S. 584 (1977) diminishment/disestablishment situa-

tions. By no stretch of the imagination could it possibly

apply to the situation the United States now maintains was

the intended result of Hagen.* ,

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be reversed and the post-Hagen argu-

ment of the United States should be rejected in the

process.

Respectfully submitted,

JOANN B. STRINGHAM HERBERT WM. GILLESPIE

Uintah County Attorney Duchesne County Attorney

152 East 100 North 500 East 100 South

Vernal, UT 84078 P.O. Box 206

(801) 781-5436 Duchesne, UT 84021

(801) 738-2435

Counsel of Record

Dated: August 7, 1997

* Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387,

1420-1422 (10th Cir. 1990) has since clarified and correctly stated

the prevailing law on checkerboard jurisdiction in the Tenth Circuit.

See also DeCoteau, 420 U.S. at 427 n.2, 429 n.3, 446-447.

OV aaa Co ee OD =

la

APPENDIX A

The only other Act of Congress that contains provisions

relative to the boundaries and size of the Lake Traverse

Reservation is the Act of March 3, 1891, supra. ratifying

an Agreement of December 12, 1889 between three United

States commissioners and the chiefs, headmen, and male

adult members of the Sisseton and Wahpeton Bands.

(Appendix at 7 contains the full text of the Act.) The

Bands agreed to open their permanent reservation for

settlement. The only express language of Congress perti-

nent to the question of disestablishment or diminishment

of the Reseravtion is found in § 26 (reciting Article I

of the 1889 Agreement) and § 30.

* * * *

A conclusion that these sections disestablish the perma-

nent Lake Traverse Reservation, as described in Article

Ill of the 1867 Treaty, or separate any tracts therefrom

is untenable. No act of Congress has ever changed the

1867 Treaty boundaries. That boundaries of reservations

are changed by Congress only by “unequivocal” specific

description of the lands excluded from the reservation and

specific delineation of the new boundaries is the explicit

meaning of Celestine, supra, and is evident from exami-

nation of the many contemporaneous acts which opened

Indian reservations for settlement,® including the Act of

March 3, 1891, opening Lake Traverse and six other

servations. Mattz v. Arnett, supra, 412 U.S. at 504, fn.

22; United States ex rel. Feather v. Erickson, supra, 489

F.2d at 101-102. Significantly, of the seven reservations

opened for settlement by the Act of March 3, 1891,’ the

portions of land excluded from the reservation and the

new boundaries resulting therefrom are specifically de-

lineated by definite property lines for all but Lake

Traverse.*

* * * «

2a

APPENDIX B

* * * In contrast to the instant reservation, one other

tribe agreed to “cede, relinquish, and forever and abso-

lutely surrender to the United States all their claim, title

and interest of every kind and character in and to” a

described tract.* Another agreed to “cede, convey, trans-

fer, relinquish, and surrender forever and absolutely, with-

out any reservation” all their claim, title, and interest in

a described tract." Another agreed to “cede, sell, and

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

interest in and to all that portion” of a named reservation

as specifically described.© Another agreed to sell to the

United States “all that portion” of the reservation described

by metes and bounds. Congress made an unmistakable

change when it came to the lands ceded in the instant

case. (Emphasis added).

3a

APPENDIX C

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

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

that is correct.

QUESTION: _Isn’t that even stronger?

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

what’s ceded is what is not allotted—

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

the public domain.

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

that.

QUESTION: Well, what happened after the ceded

property?

MR. SACHSE: After the property was ceded,—

QUESTION: Yes.

MR. SACHSE: —the government sold that lana

under—

QUESTION: Treated it like the public domain.

MR. SACHSE: Well, only in the exact same sense

that it—

QUESTION: Well, it was handled as part of the

public domain, by the same system that the public domain

was handled.

QUESTION: Weren't they acting for the Indians?

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

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

into historical perspective. (Emphasis added).

4a

APPENDIX D

HOUSE OF REPRESENTATIVES.

59TH CONGRESS, 2d Session.

Report No. 7613.

SALE AND DISPOSITION OF CERTAIN LANDS IN

ROSEBUD INDIAN RESERVATION, S. DAK.

FEBRUARY 14, 1907.—Committed to the Committee

of the hWole House on the state of the Union

and ordered to be printed.

Mr. BurRKE, of South Dakota, from the Committee on

Indian Affairs, submitted the following

REPORT.

[To accompany H. R. 24987.]