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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0066%3A21

## Record

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

## Text

A) FILED
IS |
No. 96-1581 a AUG @ 1997

ON ee r ee

IN THE
Supreme Court of the United States

OCTOBER TERM, 1996

STATE OF SOUTH DAKOTA,
Petitioner,
v.
YANKTON Sioux TRIBE, a federally recognized
tribe of Indians, and its individual members;
DARRELL E. DRAPBAU, individually, a member
of the Yankton Sioux Tribe,
_ Respondents,
SOUTHERN MIssouRI WASTE MANAGEMENT
DiIsTRICT, a nonprofit corporation,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit

BRIEF OF LEWIS COUNTY, IDAHO,
AMICUS CURIAE, IN SUPPORT OF
PETITIONER, STATE OF SOUTH DAKOTA

KIMRON R. TORGERSON

Lewis Co. Prosecuting Attorney
P.O. Box 398

Nezperce, ID 83543

(208) 937-2271

Counsel of Record

REE CCD KE Sm pee a EES
WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

I.

II.

GENERAL CESSION DOCUMENTATION
UNDERMINES THE OPINION OF THE
PTs TR ccc csecssiisaincosccemngegnn -

SPECIFIC NEZ PERCE DOCUMENTATION
CONFIRMS DISESTABLISHMENT IN THE
TRADITIONAL SENSE AND ERODES THE
NEW ARGUMENT OF THE UNITED
CN iti tiedchneiatin sacs cst indaerelttnatnesad nstaat®

. RELEVANT CASE LAW CLEARLY SUP-

. THE NEZ PERCE AGREEMENT IS NOT

LIMITED IN LANGUAGE OR SCOPE

. THIS COURT SHOULD PUT ALL SIMILAR

ISSUES TO REST AND AUTHORITATIVELY
RESOLVE ALL DOUBTS REGARDING THE
EFFECTS OF CESSION AGREEMENTS IN

A. Act of August 15, 1894, ch. 290, 28 Stat. 286,
326-332 (APPENDIX A)

Proclamation of November 8, 1895, 29 Stat. 873

ii
TABLE OF AUTHORITIES

CASES: Page
DeCoteau v. District County Court, 420 U.S. 425
C ROGGE) anececccnnisciitninshvmnimsitinn passim
Dick v. United States, 208 U.S. 340 (1908) ............ passim
Dole v. Steelworkers, 494 U.S. 26 (1990) .............. 16
Ex Parte Tilden, 218 F. 920 (D. Idaho 1914)........ 12, 13
Hagen v. Utah, 510 U.S. 399 (1994) ....................... passim
King v. St. Vincent’s Hospital, 502 U.S. ——, 112
B.Ob, DRO CRBDRD cceecensercerrmactnianinnsssemieninineinn 16
Mattz v. Arnett, 412 U.S. 481 (1973) ..................... 5
NLRB v. Federbush Co., 121 F.2d 954 (CA2
BOGE D .<n:c-cccsneisoserssnumasnieduniidiiadaianiai aaa 15
Perrin v. United States, 232 U.S. 478 (1914)........ 13

Pittsburg & Midway Coal Min. Co. v. Yazzie, 909
F.2d 1387 (10th Cir. 1990), cert. denied, 498

TB, BORD CIGD cncecctisvecceecccnssthsdlssthintatsdinnan 11, 14
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

CBDTTD -cccersncs-cosseoonmoesenssisicanaenetatiiadial aiaiaaeaanael 5, 9, 12
Seymour v. Superintendent, 368 U.S. 351 (1962).. 5
Solem v. Bartlett, 465 U.S. 463 (1984) ................... 4,5
State v. Greger, 559 N.W.2d 854 (S.D. 1997)........ 4
State v. Lott, 123 P. 491 (Idaho 1912) .................. 12, 13

United Savings Ass’n of Texas v. Timbers of
Inwood Forest Associates; Ltd., 484 U.S. 365

( 2OGBD .........-cncesccsstasnsnocnseepiaciiansnnieaaannl 16
United States v. Forty-three Gallons of Whiskey,

t Bis SF Be}; Ree a 13
United States v. Heirs of Boisdore, 49 U.S. (8

Hiow.) BEB CIDP nncescccsttinncincssnennnientnee 16

United States National Bank of Oregon v. Inde-
pendent Insurance Agents, 113 §.Ct. 2173

CTD aecscciscnvssnievmntcniatiinssccnnaiaaeaanal 16
Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir
| | EEE es ke ee 8

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

BBD) ncnncecncccsssseseeerecetercastncontoseosenimaniantaaasamnan 3, 4, 14
STATUTES:
Act of August 15, 1894, ch. 290, 28 Stat. 286......2, 6, 7, 15

Proclamation of November 8, 1895, 29 Stat. 873.... 9

iii
TABLE OF AUTHORITIES—Continued

Act of March 2, 1889, c. 405, 25 Stat. 888 .-s._—s«sy’.
Act of March 3, 1891, 26 Stat. 1086...
Act of June 18, 1934, 48 Stat. 984...
Public Law 280, Idaho Code § 67-5101

CONGRESSIONAL MATERIALS:
S. Ex. Doc. No. 31, 53d Cong., 2d Sess. (1894)

26 Cong. Rec. 8258, 8265-69, 53d Cong., 2d Sess.

ESSE ESE A Se
H.R. Rep. No. 6913, 53d Cong., 2d Sess. (1894).
53 Cong. Rec. 6425, 6426, 8269, 53d Cong., 2d Sess.

IE SEES SERENE AREAS 5,
H.R. Doe. No. 5, Vol. II, 54th — 2d Sess. (Vol.
18) (1897) .. Re n |

OTHER AUTHORITIES:

Annual Report of the Commissioner of Indian
Affairs (1894) .

Report of the Secretary of the Interior, H. Ex.
Doe. 1, pt. 5, 58d Cong., 3d Sess. (Vol. 14) at
IX (1894-95) .. l

Lewiston Tribune ( Idaho), November 20, 1895... “Naas

Lewiston Teller (Idaho), November 21, 1895 __.

Railroad Right of Way—Special Act; Spokane &
Palouse Ry. Co., 22 Pub. Lands Dec. 674 (1896).

Lee v. Thomas, 29 Pub. Lands Dec. 251 (1899).

F. McReynolds, 40 Pub. Lands Dec. 418 (1912).

Official General Land Office Map of the State of
GE Te

F. Cohen, Handbook of Federal Indian Law ( 1942
EEE ESS TES Sa

F. Cohen, Handbook of Federal Indian Law (1982
SLES EL

Brief of Petitioner, DeCoteau v. District County
Court, 420 U.S. 425 (1975) (No. 73-1148)...

Brief for the State of North Dakota as Amici
Curiae, DeCoteau v. District County Court, 420
U.S. 425 (1975) (No. 73-1148)

2,7,8

15

15

iv
TABLE OF AUTHORITIES—Continued

Lewiston Morning Tribune (Idaho) November 27,
PET SE mare EES, PA alee: Sa ee
Lewiston Morning Tribune (Idaho) February 27,
Re SR Rs Oy eS ae Pe Toe Oe
Respondent Yankton Sioux Tribe and Darrell
Drapeau’s Brief in Opposition to Petition for
Writ of Certiorari, Yankton Sioux Tribe v.
Southern Missouri Waste Management Dist.
(May 7, 1997) (No. 96-1581) 0000 ..
Brief of Duchesne County, Utah, and Uintah
County, Utah, Amici Curiae in Support of Peti-
tioner, South Dakota v. Yankton Sioux Tribe.
(No 96-1581) (August 7, 1997) 000.

Page

16

17

15

In THE
Supreme Cowrt of the United States

OCTOBER TERM, 1996

No. 96-1581

STATE OF SOUTH DAKOTA,

- Petitioner,

YANKTON Sioux Trise, a federally recognized
tribe of Indians, and its individual members;
DARRELL E. DRAPEAU, individually, a member

of the Yankton Sioux Tribe,
aad Respondents,

SOUTHERN MISsOoURI WASTE MANAGEMENT

DisTRICT, a nonprofit corporation,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit

BRIEF OF LEWIS COUNTY, IDAHO,
AMICUS CURIAE, IN SUPPORT OF
PETITIONER, STATE OF SOUTH DAKOTA

INTEREST OF AMICUS CURIAE

The interest that prompts the filing of this Brief of
Lewis County, Idaho, Amicus Curiae, in Support of Peti-
tioner, State of South Dakota, can be simply stated. The
1894 Indian appropriation act that ratified the Yankton

2

cession agreement also ratified a similar Nez Perce cession
agreement. Act of August 15, 1894, ch. 290, 28 Stat.
286, 326; Lewis Co. App. at 1. It was not unusual for
Congress to adopt this format for the ratification of more
than one cession agreement, as DeCoteau v. District
County Court, 420 U.S. 425 (1975) attests. DeCoteau,
420 US. at 439-441 & nn. 21, 22. As a result, although
the Nez Perce agreement started out as a separate meas-
ure with independent cession instructions, agency corre-
spondence, and tribal negotiations, and although it was
reported separately as S. Ex. Doc. No. 31, 53d Cong.,
2d Sess. (1894), the subsequent congressional debate
addressed, among other subjects, all aspects of both the
Yankton agreement and the Nez Perce agreement—some-
times separately but more often together.

In this instance, the Nez Perce cession agreement, like
the Yankton agreement, encompassed al/ of the unallotted
lands of the 1863 Nez Perce reservation. See also De-
Coteau, 420 U.S. at 438, 446-47. And as we will show,
other pertinent factors are also remarkably similar to those
found in the Yankton case. For example, today, the 1863
Nez Perce reservation is a ruval area primarily owned
and populated by non-Indians. Approximately ninety
percent (90%) of the iand is owned by non-Indians and
approximately ninety percent (90% ) of the population is
also non-Indian. In this rural area of central Idaho, for
nearly three-quarters of a century, the jurisdictional history
has also been equally clear. Early on, state and federal
cases, including the decision of this Court in Dick vy.
United States, 208 U.S. 340 (1908), were premised upon
Nez Perce reservation disestablishment. However, recent
asseruons of tribal jurisdiction over non-members and /or
claims regarding the lack of state jurisdiction over tribal
eee De ee OG, ee OO, ee

Of course, it is true that the Nez Perce and Yank-
ton cession documents differ in one material respect.
Parties in DeCoteau and in this case have, for a number

3

of different reasons, recognized and conceded that the Nez
Perce cession presents a stronger case for disestablishment
than either DeCoteau or Yankton. DeCoteau, 420 US.
425; Yankton Sioux Tribe v. Southern Missouri Waste
Management, 99 F.3d 1439 (8th Cir. 1996). Moreover,
in this instance, the court below has agreed with this
assessment and repeated that recognition in the text of
the panel majority opinion:
A number of savings clauses in other agreements
also state that earlier agreements and treaties will “be
in full force and effect,’ but none include such a
strong phrase as ‘the same as though this agreement
had not been made, and most include language
explaining that prior treaties will remain in force so
long as they are ‘not inconsistent’ with the later
agreement. .. . Dick v. United States, 208 U.S, 340,
352, 28 S.Ct. 399, 402-03, 52 L.Ed. 520 (1908)
[Nez Perce] (treaty provisions ‘not inconsistent with
the provisions of this agreement are hereby con-
tinued in full force and effect’).

Article XVIII contains no similar limitation. It
does not state that only consistent aspects of the
earlier treaty are to continue.

Southern Missouri Waste Dist., 99 F.3d at 1447; Pet.
App. at 16. In this instance, the distinction, according to
the panel majority, is tied to the fact that the Nez Perce
cession is not burdened by the Yankton Article XVIII
savings clause. /d.

We recognize that most litigants would ordinarily
seize such a determinative factor and join in the court's
claim that it makes all the difference. In all candor,
however, Lewis County, as a friend of the Court, cannot
represent to this Court that this point or any other point
deemed significant by the panel majority truly deserves
deference or support. We cannot support any part of the
opinion of the panel majority for the simple reason that
it does not follow the precedent of this Court, or the

4

intent of Congress. Our views are in agreement with those
of the dissent and the Supreme Court of the State of
South Dakota. Yankton Sioux Tribe v. Southern Missouri
Waste Dist., 99 F.3d 1439, 1458 (8th Cir. 1996)
(Magill, J., dissenting); Pet. App. at 44; South Dakota v.
Greger, 559 N.W.2d 854 (S.D. 1997); Pet. App. at
125-158.

Lewis County, Idaho, has the support of a recently
formed association of local governmental units, the North
Central Idaho Jurisdictional Alliance, in filing this brief
amicus curiae. The Alliance consists of three counties,
eight cities, three school districts and seven highway dis-
tricts in North Central Idaho, whose geographic bound-
aries include land which was within the Nez Perce reser-
vation as it existed prior to 1894.

SUMMARY OF ARGUMENT

We rely on the decisions of this Court, which has de-
cided six cases of this general nature since the 1960's.
According to this precedent, a sum certain cession statute
of this exact kind is “precisely suited” for disestablish-
ment. DeCoteau, 420 U.S. at 445. It presents an “almost
insurmountable presumption” of disestablishment, or
a “nearly conclusive presumption” of disestablishment.
Solem v. Bartlett, 465 U.S. 463, 470-471 (1984); Hagen
v. Utah, 510 U.S. 399, 411 (1994).

In Hagen, even the dissenting Justices did not disagree
on this point. Justice Blackmun summarized in Hagen:

In contrast, the only two cases in which this Court
previously has found diminishment involved statutes
and underlying tribal agreements to “ ‘cede, sell,
relinquish, and convey to the United States all [the
Indians’] claim, right, title, and interest’” in un-
allotted lands, DeCoteau, 420 U.S., at 439, n.22,
or to “ ‘cede, surrender, grant, and convey to the
United States all [the Indians’] claim, right, title,
and interest’ in a defined portion of the reservation,

5

Rosebud, 430 U.S., at 591, n.8. The Court held

that in the présence of statutory language “precisely
sv‘ted” to diminishment, id., at 597, supported by
the express consent of the tribes, “the intent of all
parties to effect a clear conveyance of all unallotted
lands was evident.” DeCoteau, 420 U.S., at 436,
n.16. I need hardly add that no such language or
underlying Indian consent accompanies the statute
at issue in this case.

Hagen, 510 U.S. at 427 (Blackmun, J., dissenting).

In addition, Lewis County, Idaho, as amicus curiae,
will continue to rely upon the Nez Perce case of Dick v.
United States, 208 U.S. 340 (1908) and the recognition
of this Court in Rosebud Sioux Tribe v. Kneip, 430 US.
584, 613-615 n.47 (1977) of the important role that the
analysis of Dick plays in cases of this nature.

Nothing in the Nez Perce documentation, or those
portions of the congressional debates directed to the Nez
Perce agreement, supports any other conclusion.

ARGUMENT

I.

GENERAL CESSION DOCUMENTATION UNDER-
MINES THE OPINION OF THE PANEL MAJOR-
ITY.

As a preliminary matter, it should be noted that the
decision of this Court in DeCoteau certainly appears
to be controlling in this situation. If this is the case,
the jurisdiction of the Nez Perce Tribe would neces-
sarily be limited to tribal trust lands. DeCoteau, 420
U.S. at 427 n.2, 446-447. Tribal jurisdiction simply
would not extend to the fee land site at issue in
this controversy. /d. See generally Seymour v. Super-
intendent, 368 U.S. 351 (1962); Mattz v. Arnett, 412
U.S. 481 (1973); DeCoteau, 420 U.S. 425: Rosebud,
430 U.S. 584; Solem, 465 U.S. 463 and Hagen, 510 U.S.
399. (We understand that Utah Counties are briefing
this trust /fee question).

6

In further support of the position that DeCoteau is
important here, Lewis County has attached to this brief a
copy of the 1894 Nez Perce statute in the appendix. Act
of August 15, 1894, ch. 290, 28 Stat. 286, 326; Lewis
County App. at 1-4. Even a cursory comparison of the
provisions of the Sisseton-Wahpeton Act and the Nez Perce
act unequivocally substantiates the argument that the 1894
Nez Perce statute is also the functional twin of the 1891
DeCoteau statute. For example, the “operative language”
of each statute provides:

[C]ede, sell, relinquish, and convey to the United
States all their claim, right, title, and interest... .

Act of March 3, 1891, 26 Stat. 1036 (Sisseton-Wahpeton
act—appended in DeCoteau, 420 U.S. at 449).

[C]ede, sell, relinquish, and convey to the United
States all their claim, right, title, and interest. . . .

28 Stat. at 326 (Nez Perce act, Lewis Co. App. at 1).

Beyond the “operative language” on the face of the
statute, which this Court has found to be most significant
in resolving questions of this nature, the other Nez Perce
documentation confirms the significance and strength of
the comparison. In fact, in the congressional debates, key
congressional speakers specifically reference agreements
from the past as precedent for the 1894 legislation. 26
Cong. Rec. 8258, 8265-69, 53d Cong., 2d Sess. (1894).
Mr. Pickler: “. . . The same kind of treaty we have always
made.” /d. at 8265. Mr. Pickler: “. . . These are treaties,
just as all other cessions of land have been.” /d. at 8268.'

‘As previously pointed out, although three years and one
session of Congress separate the passage of the Sisseton-Wahpeton
and the Yankton and Nez Perce Acts, parts of the process were
actually under consideration in both session. Many of the key
congressional participants in the process continued to hold office
through the passage of the 1894 Act. And the fact that approxi-
mately one-third of the members in the House of Representatives
and tvo-thirds of the members in the entire Senate for the 51st

7

In every other respect, the remainder of the Nez Perce
documentation confirms this same understanding. For the
most part, this documentation is set forth in Sen. Ex. Doc.
No. 31, 53d Cong., 2d Sess. (1894), which contains the
official Nez Perce correspondence, reports, transcripts and
cession agreement, and also in the congressional debates
and reports on the 1894 Act. See H.R. Rep. No. 6913,
53d Cong., 2d Sess. (1894); Act of August 15, 1894, 28
Stat. 286.

II.

SPECIFIC NEZ PERCE DOCUMENTATION CON-
FIRMS DISESTABLISHMENT IN THE TRADI-
TIONAL SENSE AND ERODES THE NEW ARGU-
‘MENT OF THE UNITED STATES.

The transcripts of the tribal negotiations contained in
Sen. Ex. Doc. No. 31 are particularly telling. In Hagen v.
Utah, 510 U.S. 399 (1994), this Court set forth, with
special emphasis, the boundary discussions significant
there.

“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.’
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.

Hagen, 510 U.S. at 417 (emphasis in original).

The Nez Perce transcrifts document a similar under-
standing:

Congress (Sisseton-Wahpeton) were still there in the 53rd Con-
gress when the 1894 Acts were finally considered, debated and
yassed, is significant.

Salmon River Billy: . . . [T]he country had been
inclosed according to the treaty anc prevented the
entrance on the reservation of any white man and
any who should try to set aside or break down the
boundaries of that reservation... . Perhaps it may
be on account of having another President, who is a
Democrat; perhaps it is he who has made the edict
for breaking down the lines of the reservation.

Sen. Ex. Doc. No. 31 at 56 (1894) (emphasis added) .?

In addition, the federal commissioners here also specifi-
cally cited the DeCoteau example (“the Sisseton and
Wahpeton Indians have sold their land”), among others,
in their discussions with the tribe in an effort to gain
general support for the Nez Perce Agreement. Sen. Ex.
Doc. No. 31 at 30. And in response to the price to be
paid per acre, Commissioner Allen again referenced the
DeCoteau Agreement:

The Government has made you the most liberal
offer in my opinion that has been made to any tribe
since Harrison was President. The only tribe that I
can remember that have received $2.50 per acre for
any considerable quantity of land is the Sisseton and
Wahpeton tribe in Dakota. They had a smaller
body of land, very little of which was waste land not
good for agriculture. We paid the same price we
Propose to pay you for all your land... .

Id. at 45 (emphasis added).
Later in the congressional debates, this same disestab-

lishment concept was again described, but in different
terms. References to “public domain” appear in more

* The recent decision in the Tenth Circuit Court of Appeals that
complicates Hagen in this respect, Ute Indian Tribe v. Utah, 114
F.3d 1513 (10th Cir. 1997), is discussed in the Brief of Duchesne
County, Utah, and Uintah County, Utah, as Amicus Curiae in
Support of the Petitioner, State of South Dakota South Dakota v.
Yankton Sioux Tribe, (Aug. 7, 1997) (No. 96-1581). This Nez
Perce “breaking down the lines” documentation clearly supports the
position of the Utah Counties.

9

than one instance. 53 Cong. Rec. 6425, 6426, 8269
53d Cong., 2d Sess. (1894). There is little doubt that
Hagen conclusively resolved the significance of that con-
cept in reservation disestablishment cases. Hagen, 510
U.S. at 412-414.

In light of our precedents, we hold that the

restoration of unallotted reservation lands to the
public domain evidences a congressional intent with
respect to those lands inconsistent with the continua-
tion of reservation status.

Id. at 414.

Here, as in the Yankton case, after the passage of the
1894 Nez Perce Act, the Commissioner of Indian Affairs,
in his Annual Report to Congress, unequivocally stated
that the Nez Perce lands would be “restored to the public
domain.” Annual Report of the Commissioner of Indian
Affairs at 26 (1894). Similarly, the Secretary of Interior's
Annual Report reflects this same understanding: “restor-
ing to the public domain.” Report of the Secretary of the
Interior, H. Exec. Doc. 1, pt. 5, 53d Cong., 3d Sess.
(Vol. 14) at IX (1894-95).

As provided in the 1894 Act, on November 8, 1895,
the President of the United States, Grover Cleveland,
described the “cession and agreement” and proclaimed
that the area “acquired” from the Nez Perce tribe would
be open to settlement on November 18, 1895. Proclama-
tion of November 8, 1895, 29 Stat. 873, 875; Lewis Co.
App. at 13a, 20a.* At the time, the local press reported the
common perception of the event in the following manner:

RESERVA™ION IS NO MORE . .. At twelve
o'clock Monday the Nez Perce reservation passed

*The Presidential Proclamations opening the reservation to
settlement were deemed especially significant in Rosebud, 430 U.S.
at 602-603 and Hagen, 510 U.S. at 419-420. In this instance, the
cession terminology of the Nez Perce Proclamation similarly re-
flects this same important construction. Nez Perce Proclamation
of November 8, 1895, 29 Stat. 873: Lewis Co. App. at 13a.

10

into history .. . heads began bobbing up all over
the former reservation... .

Lewiston Tribune (Idaho), November 20, 1895 at 1.

CANNON BOOMED AT NOON ... The cannon
was fired in front of the land office, at twelve o'clock,
Monday. This was the death knell of the great Nez
Perce reservation, and the introduction of new condi-
tions to follow these important changes.

Lewiston Teller (Idaho), November 21, 1895 at 1.

Even tie local Indian agent recognized that the reser-
vation “formerly embraced” the “ceded lands.” H.R. Doc.
No. 5, Vol. II, 54th Cong., 2d Sess. (Vol. 13) at 141
(1897).

As a result, the 1863 Nez Perce reservation was there-
after treated in the same manner as the original Sisseton-
Wahpeton reservation. It was deleted from official reser-
vation maps, and described as a “former” reservation in
numerous other instances. Frederick W. McReynolds, 40
Pub. Lands Dec. 413 (1912); Lee v. Thomas, 29 Pub.
Lands Dec. 251 (1899); Railroad Right of Way—Special
Act; Spokane & Palouse Ry. Co., 22 Pub. Lands Dec. 674
(1896). Even after the Indian Reorganization Act of
1934, Act of June 18, 1934, 48 Stat. 984, the Depart-
ment of the Interior continued to delineate the “FORMER
NEZ PERCE INDIAN RESERVE” on the Official Gen-
eral Land Office Map of the State of Idaho (1939).

The foregoing is significant to the result in the case
now before this Court because of the overall identity
between the historical context and contemporaneous under-
standing of the Yankton and Nez Perce openings in the
post-1894 Act time period. South Dakota, Southern Mis-
souri and their other amici have amply documented the
strong contemporaneous indicators of disestablishment par-
ticular to the Yankton Reservation in their briefs. The
similar indicators in the Nez Perce record simply confirm
the view that Congress, the Commissioner of Indian Af-

1]

fairs, the local Indian populations and the non-Indian
populations each perceived that disestablishment was in-
tended by both the Yankton and Nez Perce Acts.

Moreover, we are constrained to point out, in response
to the arguments made elsewhere by the Nez Perce tribe,
that other later generic references to a Nez Perce “reser-
vation” lack significance.

First, the Court in Hagen noted that “confusion” in the
subsequent legislative records did nothing to alter a con-
clusion firmly grounded upon “textual and contemporane-
ous evidence” of disestablishment. Hagen, 510 U.S. 420.
See also Pittsburg & Midway Coal Min. Co. y. Yazzie,
909 F.2d 1387, 1416 (10th Cir. 1990), cert. denied,
498 U.S. 1012 (1990). Secondly, here, as in Hagen,
the subsequent demographics further support a conclusion
of disestablishment. Within the 1863 Nez Perce reserva-
tion, roughly 90% of the population is non-Indian and
roughly 90% of the lands are non-Indian fee lands. As
this Court noted in Hagen, in this same situation, “a con-
trary conclusion would seriously disrupt the justifiable
expectations of the people living in the area.” Hagen,
510 U.S. at 421.

We conclude that the contemporaneous history of the
opening of the Nez Perce reservation strongly supports
the disestablishment of the Yankton reservation, which

proceeded along the same track, and supports the disestab-
lishment of the Nez Perce reservation itself.

ITl.

RELEVANT CASE LAW CLEARLY SUPPORTS
DISESTABLISHMENT.

If disestablishment was the intended result of the 1894
Nez Perce legislation, one would expect the early case
law to generally reflect that status. Again, this is, in fact,
the case. Early on, this Court decided Dick, 208 USS.
340, involving the ceded Nez Perce reservation.

12

In the text of the Opinion, the Court in Dick quoted,
with approval, that:

The superintendent of the Nez Perce Indians testi-
fied: “I do not know of any reservation or any part
of the reservation used for Government purposes or
for Indian purposes within the boundary of the
village of Culdesac. I have no idea there is any such
reservation within such village. Culdesac is seven or
eight miles from the exterior boundaries of the In-
dian school reservation.” The lands upon which the
village of Culdesac is located were part of those
ceded to the United States by the agreement of
1893 with the Indians, and before the above trans-
action in that village about whiskey occurred the
title to such lands had passed by patent from the
United States under the townsite laws. . . .

Dick, 208 U.S. at 351. See Rosebud, 430 U.S. at 614,
615 and 624 citing Dick in support of the conclusion that
a 1910 Rosebud Act with a similar liquor provision had
similarly disestablished that portion of the Rosebud
reservation.

In 1912, the Idaho Supreme Court in State v. Lott, 123
P. 491 (Idaho 1912), agreed with Dick in this respect:

The argument and reasoning of the Dick Case is
authority for and sustains the view that the general
government has only retained exclusive jurisdiction
over the Nez Perce Indians, and what formerly con-
stituted the Nez Perce Indian reservation, to the
extent and for the purpose of prohibiting the intro-
duction of intoxicants. . . .

Lott, 123 P. at 495 (emphasis added).

In Ex Parte Tilden, 218 F. 920 (D. Idaho 1914),
federal district court addressed a writ of habeas
presented by a Nez Perce Indian who had shot
person on a railroad right of way within the
reservation and was prosecuted in state court.
noted:

&

ih

13

The status of what is referred to as the Nez Perce
reservation is pretty fully set forth in the opinion in
the case of Dick v. United States, 208 U.S. 340, 28
Sup. Ct. 399, 52 L.Ed. 520. Villages and towns
inhabited almost exclusively by white people have
grown up upon the territory formerly embraced
within its limits.
Ex parte Tilden, 218 F. at 921 (emphasis added).

After further examining Dick, the court concluded that
the lands “within the boundaries of what was formerly
the Nez Perce Indian reservation” were no longer “Indian
country” for any purpose other than enforcement of the
liquor prohibition statutes. /d. at 924 (emphasis added).

To summarize, as Dick, 208 U.S. 340, Lott, 123 P.
491, and Ex parte Tilden, 218 F. 920, generally attest,
the view of the original Nez Perce reservation as a
“former” reservation was fairly uniform and certainly con-
trolling in the resolution of “reservation” related issues,
at least through the 1950's. In addition, Dick figures
prominently in the “buffer” lands analysis (lands that
“adjoin” Indian country) set forth in the 1942 edition
of Felix Cohen’s Handbook of Federal Indian Law. F.
Cohen, Handbook of Federal Indian Law at 353 (1942
ed.). This 1942 text cites Dick as one of three cases that
support liquor restrictions of this nature. Jd. at 353 n.26.
The other two cases are Perrin v. United States, 232 US.
478 (1914) (1892 Yankton cession) and United States
v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883)
(1854 Chippewa cession). All three involve “formerly
Indian country” areas. F. Cohen, Handbook of Federal
Indian Law at 307 (1982 ed.).

In more recent years, with the adoption of Idaho's
version of Public Law 280, Idaho Code § 67-5101, the
need to specifically identify the location of reservation
boundaries, trust lands or fee lands with respect to “Indian
country” was lessened and distinctions necessarily blurred.
Additionally, throughout the history of the area, there are

14

other references to a “Nez Perce reservation” that can
readily be seen as colloquialisms, convenient ways to desig-
nate a geographic area in easily recognizable form. See
a discussion of this point in Yazzie, 909 F.2d at 1416.
See also Hagen, 510 U.S. at 420.

IV.

THE NEZ PERCE AGREEMENT IS NOT LIMITED
IN LANGUAGE OR SCOPE.

The Eighth Circuit Court of Appeals and Respondent
Yankton Sioux Tribe both found a distinction to be

significant:

A number of savings clauses in other agreements
also state that earlier agreements and treaties will ‘be
in full force and effect,’ but none include such a
strong phrase as ‘the same as though this agreement
had not been made,’ and most include language
explaining that prior treaties will remain in force so
long as they are ‘not inconsistent’ with the later
agreement. . . . Dick v. United States, 208 U.S.
340, 352, 28 S.Ct. 399, 402-03, 52 L.Ed. 520 (1908)
({Nez Perce] treaty provisions ‘not inconsistent with
the provisions of this agreement are hereby continued
in full force and effect’).

Article XVIII contains no similar limitation. It-

does not state that only consistent aspects of the
earlier treaty are to continue.

Yankton Sioux Tribe, 99 F.3d at 1447; Pet. App. at 16.

[EJach contained limiting words which completely
distinguish all other savings clauses from the Yankton
Sioux agreement .. . Dick v. United States, 208 U.S.
340, 352 (1908) ([Nez Perce] treaty provisions “not
inconsistent with the provisions of this agreement are
hereby continued in full force and effect”).

Article XVIII in the Yankton Sioux agreement
contains no such limiting language.

15

Resp. Yankton Sioux Tribe and Darrell Drapeau's Br.
in Opp’n to Pet. for Writ of Cert., Yankton Sioux Tribe
(May 7, 1997) (No. 96-1581).

In addition, the petitioner in DeCoteau listed the Nez
Perce Act of August 15, 1894, 28 Stat. 326, in conjunc-
tion with other acts where Congress concededly disestab-
lished Indian reservations:

Br. of Pet. at 15, DeCoteau (No. 73-1148).

In DeCoteau, the State of Idaho allso joimed the State of
North Dakota as Amici Curiae. Bu. for the State of North
Dakota, et al. as Amici Curiae at |, DeCoteau (No. 73-
1148). The scope of that brief, like the scope of

DeCoteau opinion, was not limmited to the specifics of the
Sisseton-Wahpeton agreement. [it submitted, in general

the terms “cede,” “sell,” “vellimguiish” and “convey.” id.
at 1. That submission was intended to resolve cessions
in the context of both the Yankton agreement and the
Nez Perce agreement. The Decoteau opinion was crafted
in the same manner.

In another case dealing with a different issue, this Court
summarized a related statutory construction concept in

_ Along with punctuation, text consists of words |liv-
ing “a communal existence,” in Judge Learned Hand’s
phrase, the meaning of each word informing the
others and “all in their aggregate tak[ing] their pur-
port from the setting in which they are used.” NLRB
v. Pederbush Co., 121 F.2d 954, 957 (CA2 1941).
Over and over we have stressed that “{iJn expound-

_

16

ing a statute, we must not be guided by a single
sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and
policy.” United States v. Heirs of Boisdore, 49 U.S.
(8 How.) 113, 122, 12 L.Ed. 1009 (1849) (quoted
in more than a dozen cases, most recently Dole v.
Steelworkers, 494 U.S. 26, 35, 110 S.Ct. 929, 934,
108 L.Ed.2d 23 (1990)); see also King v. St. Vin-

cent’s Hospital, 502 U.S. . , 112 S.Ct. 570,
574, 116 L.Ed.2d 578 (1991). No more than iso-
lated words Or sentences is ion alone a reli-

ings Ass'n of Texas v. Timbers of Inwood Forest
Associates, Ltd., 484 U.S. 365, 371, 108 S.Ct. 626,
630, 98 L.Ed. 2d 740 (1988), and, at a minimum,
must account for a statute's full text, language as well
as punctuation, structure, and subject matter.

U.S. Nat. Bank of Or. v. Independent Ins. Agents, 113
S.Ct. 2173, 2182 (1993) (emphasis added).

Vv.

THIS COURT SHOULD PUT ALL SIMILAR ISSUES
TO REST AND AUTHORITATIVELY RESOLVE
ALL DOUBTS REGARDING THE EFFECTS OF
CESSION AGREEMENTS IN THIS CASE.

Tribal attempts to resurrect the 1863 Nez Perce reser-
vation boundaries have been most noticeable recently in
conjunction with assertions of tribal jurisdiction over non-
members and fee lands. For example, in a number of
instances non-Indian entities have been instructed to fully
comply with a Tribal Employment Rights Ordinance
(including the payment of substantial tribal TERO taxes
and total compliance with tribally dictated hiring prac-
tices) or face tens of thousands of dollars of tribal fines
or other tribal enforcement actions in tribal court. Lewis-
ton Morning Tribune (Idaho) November 27, 1996 at 8A.
For some projects, it has been estimated that the TERO
requirements would increase existing costs hundreds of

17

thousands of dollars. /d. Entities that are said to be
subject to TERO include local governmental subdivisions
and school districts as well as other private contractors.

In addition, the Nez Perce tribe has recently assessed
an ad valorem tax against certain non-Indian businesses
that conduct business on non-Indian lands within the
1863 reservation boundaries. Lewiston Morning Tribune
(Idaho), February 27, 1997 at 1,4. (“‘(The tribe) is
feeling a real need for injections of revenue’ . . . tribal legal
counsel Douglas Nash”). Although the exact status of
this ad valorem tax is now unclear, the amount at risk
is substantial—potentially involving hundreds of thou-
sands, if not millions of dollars (2.7 percent tax on
assessed value). /d.

In light of all of the above, the status of the 1863
Nez Perce reservation is still of substantial concern to
resident non-members and local governmental entities two
decades after the decision of this Court in DeCoteau.
Now is the time for this Court to correct this misunder-
standing in no uncertain terms.

If not, our local jurisdictions have been told that we
can expect to defend ourselves in litigation on this issue
for the next three to five years at a probable cost of one
million dollars. DeCoteau resolved this issue. This Court
should make that point in a manner that will ensure that
such litigation is unnecessary.

CONCLUSION

For the foregoing reasons, the decision of the court
of appeals should be reversed. The decision in this Court
in DeCoteau sets forth what should have been the con-
trolling principles.
Respectfully submitted.,
KIMRON R. TORGERSON
Lewis Co. Prosecuting Attorney
P.O. Box 398
Nezperce, ID 83543
(208) 937-2271

Dated: August 7, 1997 Counsel of Record

—_—

| APPENDICES

APPENDIX TABLE OF CONTENTS ‘iain

Act of August 15, 1894, ch. 290, 28 Stat. 286, 326-332
(APPENDIX A)

Proclamation of November 8, 1895, 29 Stat. 873 (AP-
PENDIX B)

=

la

APPENDIX A
AGREEMENT WITH THE NEZ PERCE INDIANS IN IDAHO.

Sec. 16. Whereas Robert Schleicher, James F. Allen,
and Cyrus Beede, duly appointed commissioners on the
part of the United States, did on the first day of May,
eighteen hundred and ninety-three, conclude an agreement
with the principal men and other male adults of the
Nez Perce tribe of Indians upon the Lapwai Reservation,
in the State of Idaho, which said agreement is as follows:

Whereas the President, under date of October thirty-
first, eighteen hundred and ninety-two, and under the
provisions of the Act of Congress entitled “An Act to
provide for the allotment of lands in severalty to Indians
on the various reservations, and to extend the protection
of the laws of the United States and the Territories over
the Indians, and for other purposes,” approved February
eighth, eighteen hundred and eighty-seven, authorized
negotiations with the Nez Perce Indians in Idaho for the
cession of their surplus lands; and

Whereas the said Nez Perce Indians are willing to dis-
pose of a portion of the tract of land in the State of Idaho
reserved as a home for their use and occupation by the
second article of the treaty between said Indians and the
United States, concluded June ninth, eighteen hundred
and sixty-three:

Now, therefore, this agreement made and entered into
in pursuance of the provisions of said Act of Congress
approved February eighth, eighteen hundred and eighty-
seven, at the Nez Perce Agency, by Robert Schleicher,
James F. Allen, and Cyrus Beede, on the part of the
United States, and the principal men and male adults of
the Nez Perce tribe of Indians located on said Nez Perce
Reservation, witnesseth:

2a

ARTICLE I.

The said Nez Perce Indians hereby cede, sell, relinquish,
and convey to the United States all their claim, right, title,
and interest in and to all the unallotted lands within the
limits of said reservation, saving and excepting the follow-
ing described tracts of lands, which are hereby retained by
the said Indians, viz:

In township thirty-four, range four west: Northeast
quarter, north half and southeast of northwest quarter,
northeast quarter of southwest quarter, north half and east
half of southwest quarter, and the southeast quarter of
southeast quarter, section thirteen, four hundred and forty
acres.

In township thirty-four, range three west: Sections ten,
fifteen, thirty-six, one thousand nine hundred and twenty
acres.

In township thirty-three, range three west: Section one;
northwest quarter of northeast quarter, north half of
northwest quarter section twelve, seven hundred and sixty
acres.

In township thirty-five, range two west: South half of
northeast quarter, northwest quarter, north half and south-
east quarter of southwest quarter, southeast quarter sec-
tion three; east half, east half of northwest quarter, south-
west quarter section ten, section eleven; north half, north
half of south half, section twenty-one; east half of north-
east quarter, section twenty; section twenty-two, twenty-
seven, thirty-five, four thousand two hundred acres.

In township thirty-four, range two west; North half,
southwest quarter, north half and southwest quarter and
west half of southeast quarter of southeast quarter, section
thirteen; section fourteen; north half section twenty-three,
west half of east half and west half of northeast quarter,
northwest quarter, north half of southwest quarter; west
half of east half and northwest quarter and east half of

3a

southwest quarter of southeast quarter, section twenty-
four; section twenty-nine, two thousand seven hundred
acres.

In township thirty-three, range two west: West-half
and southeast quarter section six; sections sixteen, twenty-
two, twenty-seven; north half and north half of south half
section thirty four, two thousand eight hundred and eighty
acres.

In township thirty-four, range one west: West-half sec-
tion two; sections three, four; north half and southwest
quarter section eight; north half section nine; north half
and north half of southwest quarter section eighteen;
northwest quarter section seventeen, two thousand nine
hundred and sixty acres.

In township thirty-seven, range one east: Section
twenty; section twenty-one, less south half of south half
of southwest quarter of southeast quarter (ten acres), one
thousand two hundred and seventy acres.

In township thirty-six, range one east: South-half of sec-
tions three, four; sections eleven, twelve, one thousand
nine hundred and twenty acres.

In township thirty-six, range two east: Sections sixteen,
seventeen, eighteen, twenty; all of section twenty-five west
of boundary line of reservation; sections twenty-six,
twenty-seven, four thousand two hundred and forty acres.

In township thirty-five, range two east: North half of
sections sixteen, seventeen, section twenty-seven: north
half of section thirty-four, one thousand six hundred acres.

In township thirty-four, range two east: East half and
east half of west half of southeast quarter section twenty-
four, one hundred acres.

In township thirty-four, range three east: South half
of sections nineteen, twenty; north half; north half of
south half; southwest quarter and north half of southeast

4a

quarter of southwest quarter; north half of south half of
southeast quarter section twenty-three; north half; north
half and north half of southwest quarter and southeast
quarter of southwest quarter; southeast quarter section
twenty-four; north half and southeast quarter of northeast
quarter; north half of northwest quarter section twenty-
five; south half of northeast quarter of northeast quarter
section twenty-six; section twenty-nine; northeast quarter
of northeast quarter and south half section thirty; north-
west quarter and north half of southwest quarter section
thirty-one; northeast quarter; north half and southeast
quarter of northwest quarter section thirty-two; northwest
quarter; north half of southwest quarter, section thirty-
three, three thousand seven hundred acres.

In township thirty-three, range four east: South half
of southeast quarter section eighteen; northeast quarter
and fraction northeast of river in east half of northwest
quarter section nineteen; fraction west of boundary line
of reservation, in section twenty-two; west half and south-
east quarter of section thirty-five, one thousand four hun-
dred and forty acres.

In township thirty-two, range four west: Fraction in
west half of northeast quarter of southwest quarter; frac-
tion in northwest quarter of southeast quarter section one;
section two; south half of section six; west half and south-
east quarter of northeast quarter of section nine, one
thousand four hundred and ten acres.

In township thirty-one, range four west: South half of
northeast quarter; southeast quarter of northwest quarter;
northeast quarter of southwest quarter; southeast quarter
section seventeen; northwest quarter, section twenty-one,
four hundred and eighty acres. Total, thirty-two thousand
and twenty acres.

ARTICLE II.

It is also stipulated and agreed that the place known
as “the boom” on the Clearwater River, near the mouth

Sa

of Lapwai Creek, shall be excepted from this cession and
reserved for the common use of the tribe, with full right
of access thereto, and that the tract of land adjoining said
boom, now occupied by James Moses, shall be allotted
uch manner as not to interfere with such right.
shall be reserved from said cession the
as follows: “Commencing at a point at
Clearwater River, on the south side thereof,
is three hundred yards below where the middle
thread of Lapwai Creek empties into said river; run thence
up the margin of said Clearwater River at low-water mark,
nine hundred yards to a point; run thence south two hun-
dred and fifty yards to a point; thence southwesterly, in a
line to the southeast corner of a stone building, partly
finished as a church; thence west three hundred yards to
a point; thence from said point northerly in a straight line
to the point of beginning; and also the adjoining tract of
land lying southerly of said tract, on the south end thereof;
commencing at the said corner of said church, and at the
point three hundred yards west thereof, and run a line
from each of said points. One of said lines running on the
east side and the other on the west of said Lapwai Creek:
along the foothills of each side of said creek; up the same
sufficiently far so that a line being drawn east and west
to intersect the aforesaid lines shal) embrace within its
boundaries, together with the first above-described tract
of land, a sufficient quantity of land as to include and
comprise six hundred and forty acres;” for which de-
scribed tracts of land the United States stipulates and
agrees to pay to William G. Langford, his heirs or assigns,
the sum of twenty thousand dollars, upon the execution
by said Langford, his heirs or assigns, of a release arid
relinquishment to the United States of all right, title, in-
terest, or claim, either legal or equitable, in and to said
tracts of land, derived by virtue of a quit-claim deed of
February fourteenth, eighteen hundred and sixty-eight, to
the said William G. Langford, from Langdon S. Ward,
treasurer of the American Board of Commissioners for

S
5
-

fi
So

2,
z
")

§
Hy
it

E

z

:
a
ceils

7a

twenty-two dollars shall be paid to said Indians per capita
as soon as practicable after the ratification of this agree-
ment. The remainder of said sum of one million six
hundred and twenty-six thousand two hundred and twenty-
two dollars shall be deposited in the Treasury of the
United States to the credit of the “Nez Perce Indians, of
Idaho,” and shall bear interest at the rate of five per
centum per annum, which principal and interest shall be
paid to said Indians per capita as follows, to wit: At the
eapiration of one year from the date of the ratification
of this agreement the sum of fifty thousand dollars, and
semiannually thereafter the sum of one hundred and fifty
thousand dollars with the interest on the unexpended por-
tion of the fund of one million dollars until the entire
amount shall have been paid, and no part of the funds
to be derived from the cession of lands by this agreement
made shall be diverted or withheld from the disposition
made by this article on account of any depredation or
other act committed by any Nez Perce Indian, prior to
the execution of this agreement, but the same shall be
actually paid to the Indians in cash, in the manner and
at the times as herein stipulated.

ARTICLE IV.

It is further stipulated and agreed that the United States
will purchase for the use of said Nez Perce Indians two
portable steam saw mills, at a cost not exceeding ten
thousand dollars, and will provide for said Indians, for a
period not exceeding two years, and at a cost not ex-
ceeding twenty-four hundred dollars, a competent surveyor,
for the purpose of fully informing said Indians as to the
correct locations of their allotments and the corners and
lines thereof.

ARTICLE V.

It is further stipulated and agreed that the lands by this
agreement ceded, shall not be opened for public settlement
until trust patents for the allotted lands shall have been

ARTICLE VI.

ArTicLe VIII.

It is further stipulated and agreed tha
capita payment, provided for in Article VIII of

:
3
2

born to them before the ratification of this agreement:
Provided, That should it be found that any member of the
tribe has been omitted from said schedule, such member

thereafter: Provided, That not more than one payment
shall be made on account of a deceased member.

therefor; it is agreed that the United States, through its
properly constituted authority, will carefully examine each
of the cases herewith presented, and make such remunera-
tions to each of said claimants as shall, upon such exami-
nation, be found to be due; not exceeding the sum of two
dollars and fifty cents per day each, for the time actually
engaged in such service; it being understood and agreed
that the time of service of said claimants in no case ex-
ceeded sixty days. And it also having been made to appear
that Abraham Brooks, a member of the Nez Perce tribe
of Indians, was engaged in the service of the United States
in the late war with Joseph’s Band of Nez Perces, and it
also appearing that the said Abraham Brooks was wounded
in said service, and that by reason thereof, he is now in
failing health, and has been for several years; that he is
now nearly blind in consequence thereof; it is agreed that
an investigation of all the facts in the case shall be made
by the proper authorities of the United States, as early as
practicable, and that if found substantially as herein

10a

represented, or if found worthy under the law in such
cases provided, he shall be allowed and paid by the Uniied
States a pension adequate to the service and disability.

Aricte XI.

The existing provisions of all former treaties with said
Nez Perce Indians not inconsistent with the provisions of
this agreement are hereby continued in full force and
effect.

ARTICLE XII.

This agreement shall not take effect and be in force
until ratified by the Congress of the United States.

In witness whereof the said Robert Schleicher, James F.
Allen, and Cyrus Beede, on the part of the United States,
and the principal men and other male adults of the Nez
Perce tribe of Indians, have hereunto set their hands.

Concluded at the Nez Perce Agency, this first day of
May, anno domini eighteen hundred and ninety-three.

ROBERT SCHLEICHER,
JAMES T. ALLEN,

Cyrus BEEDE,

A. B. LAWYER; and others.

Therefore,

Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled, That the said agreement be, and the same hereby is,
accepted, ratified, and confirmed.

That for the purpose of carrying the provisions of this
Act into effect there is hereby appropriated, out of any
money in the Treasury not otherwise appropriated, the
sum of one million six hundred and sixty-eight thousand
six hundred and twenty-two dollars, of which amount the
sum of one million dollars shall be placed to the credit of
“the Nez Perce Indians of Idaho” in the Treasury of the
United States, and shall bear interest at the rate of five

lla

per centum per annum. Said sum of one million six
hundred and sixty-eight thousand 2ix hundred and twenty-
two dollars, together with the interest on said sum of one
million dollars, shall be paid to said indians, or expended
for their benefit, as provided in articles two, three, four,
and eight of said agreement; “out of which sum the Secre-
tary of the Interior shall pay to the heirs, administrator,
or legal representatives of William G. Langford, deceased,
the sum of twenty thousand dollars, upon a release and
relinquishment to the United States by said heirs, ad-
ministrator, or legal representatives of all right, title, in-
terest, or claim, either legal or equitable, in and to the
tract of land described in article two of said agreement as
therein provided: Provided, That none of the money
agreed to be paid said Indians, nor any of the interest
thereon, shall be, or become, liable to the paymeat of any
judgment or claim for depredations committed by said
tribe or any member thereof before the date of said
agreement.

That immediately after the issuance and receipt by the
Indians of trust patents for the allotted lands, as provided
for in said agreement, the lands so ceded, sold, relin-
quished, and conveyed to the United States shall be opened
to settlement by proclamation of the President, and shall
be subject to disposal only under the homestead, town site,
stone and timber, and mining laws of the United States,
excepting the sixteen and thirty-sixth sections in each
Congressional township, which shall be reserved for com-
mon school purposes and be subject to the laws of Idaho:
Provided, That each settler on said lands shall, before
making final proof and receiving a certificate of entry,
pay to the United States for the lands so taken by him,
in addition to the fees provided by law, the sum of three
dollars and seventy-five cents per acre for agricultural
lands, one-half of which shall be paid within three years
from the date of original entry; and the sum of five dollars
per acre for stone, timber, and mineral lands, subject to
the regulations prescribed by existing laws; but the rights

12a

of honorably discharged Union soldiers and sailors, as de-
fined and described in sections twenty-three hundred and
four and twenty-three hundred and five of the Revised
Statutes of the United States, shall not be abridged except
as to the sum to be paid as aforesaid.

That the Commissioner of Indian Affairs be, and he
hereby is, authorized to employ a competent surveyor for
a period not exceeding two years, at a compensation not
exceeding one thousand two hundred dollars per annum,
for the purpose stipulated in article four of said agree-
ment, and he is also authorized to purchase two portable
sawmills, as provided in article four.

That the Secretary of the Interior is hereby authorized
to examine the claim of those Indians who served the
United States under General O. O. Howard in the late war
with Joseph’s band of said tribe as scouts, couriers, and
messengers, referred to in article ten of said agreement,
and also as to the claim of Abraham Brooks, mentioned in
said article, and report his findings and recommendations

to Congress.

13a
APPENDIX B

By THE PRESIDENT OF THE
UNITED STATES OF AMERICA.

A PROCLAMATION.

Whereas, pursuant to section five, of the act of Con-
gress approved February 8, 1887, (24 Stats. 388), entitled
“An act to provide for the allotment of lands in severalty
to the Indians on the various reservations, and to extend
the protection of the laws of the United States and the
Territories over the Indians, and for other purposes”,
certain articles of cession and agreement were made and
concluded at the Nez Perce Agency, Idaho, on the first
day of May, eighteen hundred and ninety-three, by and
between the United States of America and the Nez Perce
Indians, whereby said Indians, for the consideration
therein mentioned, ceded and conveyed to the United
States all their claim, right, title and interest to all the
unallotted lands set apart as a home for their use and
occupation by the second article of the treaty between
said Indians and the United States, concluded June ninth,
eighteen hundred and sixty-three (14 Stats., 647), and
included in the following boundaries, to wit:

Commencing at the N. E. corner of Lake Wa-ha,
and running thence, northerly, to a point on the
north bank of the Clearwater river, three miles
below the mouth of the Lapwai, thence down the
north bank of the Clearwater to the mouth of the
Hat-wai creek; thence due north to a point seven
miles distant; thence eastwardly, to a point on the
north fork of the Clearwater, seven miles distant
from its mouth; thence to a point on Oro Fino Creek,
5 miles above its mouth; thence to a point on the
north fork of the south fork of the Clearwater, one
mile above the bridge, on the road leading to Elk
City, (so as to include all the Indian farms now

14a

within the forks;) thence in a straight line, west-
wardly to the place of beginning,

saving and excepting the sixteenth and thirty-sixth sec-
tions of each Congressional township, which shall be re-
served for common-school purposes and be subject to the
laws of Idaho, and excepting the tracts described in
articles one and two of the agreement, viz:

The said Nez Perce Indians hereby cede, sell,
relinquish, and convey to the United States all their
claim, right, title, and interest in and to all the un-
allotted lands within the limits of said reservation,
saving and excepting the following described tracts
of lands, which are hereby retained by the said In-
dians, viz:

In township thirty-four, range four west: North-
east quarter, north half and southeast of north-
west quarter, northeast quarter of southwest quarter,
north half and east half of southwest quarter, and
the southeast quarter of southeast quarter, section
thirteen, four hundred and forty acres.

In township thirty-four, range three west: Sections
ten, fifteen, thirty-six, one thousand nine hundred
and twenty acres.

In township thirty-three, range three west: Section
one; northwest quarter cf northeast quarter, north
half of northwest quarter section twelve, seven hun-
dred and sixty acres.

In township thirty-five, range two west: South
half of northeast quarter, northwest quarter, north
half and southeast quarter of southwest quarter,
southeast quarter section three; east half, east half
of northwest quarter, southwest quarter section ten,
section eleven; north half, north half of south half,
section twenty-one; east half of northeast quarter,

15a

section twenty; sections twenty-two, twenty-seven,
thirty-five, four thousand two hundred acres.

In township thirty-four, range two west: North
half, southwest quarter, north half and southwest
quarter and west half of southeast quarter of south-
east quarter, section thirteen; section fourteen; north
half section twenty-three, west half of east half and
west half of northeast quarter, northwest quarter,
north half of southwest quarter, west half of east half
and northwest quarter and east half of southwest
quarter of southeast quarter, section twenty-four;
section twenty-nine, two thousand seven hundred
acres.

In township thirty-three, range two west: West
half and southeast quarter section sixteen, twenty-two,
twenty-seven; north half and north half of south half
section thirty-four, two thousand eight hundred and
eighty acres.

In township thirty-four, range one west: West half
section two; sections three, four; north half and
southwest quarter section eight; north half section
nine; north half and north half of southwest quarter
section eighteen; northwest quarter section seventeen,
two thousand nine hundred and sixty acres.

In township thirty-seven, range one east: Section
twenty; section twenty-one, less south half of south
half of southwest quarter of southeast quarter (ten
acres), one thousand two hundred and seventy acres.

In township thirty-six, range one east: South half
of sections three, four; sections eleven, twelve, one
thousand nine hundred and twenty acres.

In township thirty-six, range two east: Sections
sixteen, seventeen, eighteen, twenty; all of section
twenty-five west of boundary line of reservation: sec-
tions twenty-six, twenty-seven, four thousand two
hundred and forty acres.

loa

In township thirty-five, range two east: North half
of sections sixteen, seventeen, section twenty-seven;
north half of section thirty-four, one thousand six

hundred acres.

In township thirty-four, range two east: East half
and east half of West half of southeast quarter sec-
tion twenty-four, one hundred acres.

In township thirty-four, range three east: South
half of sections nineteen, twenty; north half; north
half of south half; southwest quarter and north half
of southeast quarter of southwest quarter; north half
of south half of southeast quarter section twenty-
three; north half; north half and north half of south-
west quarter and southeast quarter of southwest
quarter; southeast quarter section twenty-four; north
half and southeast quarter of northeast quarter; north
half of northwest quarter section twenty-five; south
half of northeast quarter of northeast quarter section
twenty-six; section twenty-nine; northeast quarter of
northeast quarter and south half section thirty; north-
west quarter and north half of southwest quarter
section thirty-one; northeast quarter; north half and
southeast quarter of northwest quarter section thirty-
two; northwest quarter; north half of southwest quar-
ter, section thirty-three, three thousand seven hundred

In township thirty-three, range four east: South
half of southeast quarter section eighteen; northeast
quarter and fraction northeast of river in east half
of northwest quarter section nineteen; fraction west
of boundary line of reservation, in section twenty-
two; west half and southeast quarter of section thirty-
five, one thousand four hundred and forty acres.

In township thirty-two, range four east: Fraction
in west half of northeast quarter of southwest quarter;
fraction in northwest quarter of southeast quarter

17a

section one; section two; south half of section six;
west half and southeast quarter of northeast quarter
of section nine, one thousand four hundred and ten
acres.

In township thirty-one, range four east: South half
of northeast quarter; southeast quarter of northwest
quarter; northeast quarter of southwest quarter;
southeast quarter section seventeen; northwest quar-
ter section twenty-one, four hundred and eighty acres.
Total, thirty-two thousand and twenty acres.

ARTICLE II.

It is also stipulated and agreed that the place
known as “the boom” on the Clearwater River, near
the mouth of Lapwai Creek, shall be excepted from
this cession and reserved for the common use of the
tribe, with full right of access, thereto, and that the
tract of land adjoining said boom, now occupied by
James Moses, shall be allotted to him in such manner
as not to interfere with such right. Also that there
shall be reserved from said cession the land described
as follows: “Commencing at a point at the margin
of Clearwater River, on the south side thereof, which
is three hundred yards below where the middle
thread of Lapwai Creek empties into said river; run
thence up the margin of said Clearwater River at
low-water mark, nine hundred yards to a point; run
thence south two hundred and fifty yards to a point;
thence southwesterly, in a line to the southeast corner
of a stone building, partly finished as a church;
thence west three hundred yards to a point; thence
from said point northerly in a straight line to the
point of beginning; and also the adjoining tract of
land lying southerly of said tract, on the south end
thereof; commencing at the said corner of said
church, and at the point three hundred yards west
thereof, and run a line from each of said points. One
of said lines running on the east side and the other

18a

on the west of said Lapwai Creek; along the foothills
of each side of said creek; up the same sufficiently
far so that a line being drawn east and west to inter-
sect the aforesaid lines shall embrace within its
boundaries, together with the first above described
tract of land, a sufficient quantity of land as to in-
clude and comprise six hundred and forty acres;

and excepting the land embraced in the William Craig
donation claim, in Township 35 North, range 3 west. (See
case of Caldwell v. Robinson, Federal Reporter, Vol. 59,
p. 653); and

Whereas it is further stipulated and agreed by article six
of the agreement that any religious society or other organi-
zation now occupying under proper authority, for religious
or educational work among the Indians, any of the lands
ceded, shall have the right for two years from the date
of the ratification of this agreement, within which to
purchase the land so occupied, at the rate of three dollars
per acre, the same to be conveyed to such society or
organization by patent, in the usual form; and

Whereas, it is further agreed by article nine of the
agreement that the lands by this agreement ceded, those
retained, and those allotted to the said Nez Perce Indians
Shall be subject, for a period of twenty-five years, to all
the laws of the United States prohibiting the introduction
of intoxicants into the Indian country, and that the Nez
Perce Indian allottees, whether under the care of an Indian
agent or not, shall, for a like period, be subject to all the
laws of the United States prohibiting the sale or other
disposition of intoxicants to Indians; and

Whereas, it is provided in the act of Congress, accept-
ing, ratifying, and confirming said agreement, approved
August fifteenth, eighteen hundred and ninety-four (28
Stats., pp. 286 to 338), section 16:

That immediately after the issuance and receipt by
the Indians of trust patents for the allotted lands, as

19a

provided for in said agreement, the lands so ceded,
sold, relinquished, and conveyed to the United States
shall be opened to settlement by proclamation of the
President, and shall be subject to disposal only under
the homestead, town-site, stone and timber, and min-
ing laws of the United States, excepting the sixteenth
and thirty-sixth sections in each congressional town-
ship, which shall be reserved for common-school pur-
poses and be subject to the laws of Idaho: Provided,
That each settler on said lands shall, before making
final proof and receiving a certificate of entry, pay
to the United States for the lands so taken by him,
in addition to the fees provided by law, the sum of
three dollars and seventy-five cents per acre for agri-
cultural lands, one-half of which shall be paid within
three years from the date of original entry; and the
sum of five dollars per acre for stone, timber, and
mineral lands, subject to the regulations prescribed
by existing laws; but the rights of honorably dis-
charged Union soldiers and sailors, as defined and
described in sections twenty-three hundred and four
and twenty-three hundred and five of the Revised
Statutes of the United States, shall not be abridged
except as to the sum to be paid as aforesaid;

and

Whereas all the terms, conditions, and considerations
required by said agreement made with said tribe of In-
dians hereinbefore mentioned, and the laws relating thereto,
precedent to opening said lands to settlement have been,
as I hereby declare, provided for, paid and complied with;

Now, therefore, |, Grover Cleveland, President of the
United States, by virtue of the power in me vested by the
statutes hereinbefore mentioned, and by said agreement,
do hereby declare and make known that all of the un-
allotted and unreserved lands acquired from the Nez
Perce Indians, by said agreement, will, at and after the
hour of 12 o'clock noon, (Pacific Standard time) on the

Hida Ri

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0066%3A21. Public record. Not legal advice.