# Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1263

## Text

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.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0066%3A19. Public record. Not legal advice.