Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

Supreme Court, U.S

- foe BD

No. 96-1581 SEP 24 1997

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

= ~~ <—— cieciean

STATE OF SouTH DAKOTA,

y Petitioner,

YANKTON Sioux TRIBE, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE

OF STANDING ROCK SIOUX TRIBE AND

ASSINIBOINE AND SIOUX TRIBES OF

THE FORT PECK RESERVATION IN SUPPORT OF

RESPONDENT YANKTON SIOUX TRIBE

REID PEYTON CHAMBERS *

ARTHUR LAZARUS, JR., P.C.

WIL.iaM R. PERRY

KYLe T. NAYBACK

SonosKY, CHAMBERS, SACHSE

& ENDRESON

1250 Eye Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 682-0240

Attorneys for Amici Curiae

* Counsel of Record

TSe-O0O86 . WaswincTow, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ..2.....0.........00...-2c-scccsecseeeees

INTEREST OF AMICI CURIAE ..................-.--..2--0-0s

I. THE PROVISIONS OF THE 1892 AGREE-

II.

MENT AND 1894 ACT PRESERVED THE

BOUNDARIES OF THE YANKTON SIOUX

IED Talnibecidianintsnnmasitaniaetvnitccntevenmeimmere

A. The language of the Agreement and Act does

not support a holding of disestablishment......

1. The Article XVIII Savings Clause ..........

2. The Article I Cession and the Article II

REESE ESE CES TCE

B. Any ambiguity in the Agreement and Act

must be resolved in favor of continued exist-

ence of the Reservation ....................-..............

EVENTS SURROUNDING EXECUTION AND

RATIFICATION OF THE 1892 AGREEMENT

SHOW NO INTENT TO DISESTABLISH THE

YANKTON SIOUX RESERVATION ..............

A. Congress expressed continued Reservation

ESR ES ee

B. Statements and actions by executive officers

contemporaneous with the Agreement and

Act support the continued existence of the

SEES TE Se ae Ne

C. The legislative history of the 1894 Act shows

no intent to disestablish the Reservation........

IGE sitcnrerchnibiitnntenttndibnntitascmvtinestmienieteccncctndtanees

Page

14

17

17

18

20

21

ii

TABLE OF AUTHORITIES

Cases Page

Carpenter v. Shaw, 280 U.S. 363 (1930) -................ 14

Chan v. Korean Air Lines, Ltd., 490 U.S. 122

¢ EERE re EN a 10

Choate v. Trapp, 224 U.S. 665 (1912) ................... 16

County of Oneida v. Oneida Indian Nation, 470

UB. SB CIGD ceccsenttsinetinniiinansaeids 2,14

County of Yakima v. Confederated Tribes of the

Yakima Indian Nation, 502 U.S. 251 (1992)...... 2, 16

Choctaw Nation v. Oklahoma, 397 U.S. 620

COBTOD ..~nccecssinsrnecrnnetiiee 19

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

0 ee EE OI passim

Ex parte Crow Dog, 109 U.S. 556 (1883) -............ 16

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

Jones v. Meehan, 175 U.S. 1 (1899) -......-........... 19

Mattz v. Arnett, 412 U.S. 481 (1978) -..................... 4,9

Menominee Tribe of Indians v. United States, 391

UB. GO6 CIBBBD cceiicnicrendctilcicsitianin adalat 16

Montana v. United States, 450 U.S. 544 (1981) ....... 6

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

CBT ED .ccoccocescesisunntebonsideantbenmmaieaiaaasmenaa rs passim

Seymour v. Superintendent, 368 U.S. 351 (1962)... 4,9

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

Tulee v. Washington, 315 U.S. 681 (1942) —............ 19

United States v. Dion, 476 U.S. 734 (1986) ........... 16

Washington v. Washington Commercial Passenger

Fishing Vessel Ass'n, 443 U.S. 658 (1979) .......... 2,14

West Virginia University Hospitals, Inc. v. Casey,

GBD WB. GB CIGGED cccceccreieinsisecsictidincsienipipaaincsidialatiies 9

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).. 15, 16

Yankton Sioux Tribe v. Southern Missouri Waste

Dist., 99 F.3d 1439 (8th Cir. 1996) —.................. 7

Statutes and Treaties

Act of Apr. 11, 1882, c. 74, 22 Stat. 42 0...

Act of Jan. 26, 1887, c. 47, 24 Stat. 367 0...

Act of May 1, 1888, c. 218, 25 Stat. 113 _...................

Act of July 4, 1888, c. 519, 25 Stat. 240 — 0...

Act of Jan. 14, 1889, c. 24, 25 Stat. 642 —.......

AAIAASD

iii

TABLE OF AUTHORITIES—Continued

Act of Feb. 23, 1889, c. 2038, 25 Stat.687 ......

Act of Mar. 1, 1889, c. 317, 25 Stat. 757...

Act of Mar. 2, 1889, c. 391, 25 Stat.871_....

Act of Mar. 2, 1889, c. 405, 25 Stat. 888... ae |

Act of Mar. 2, 1889, c. 421, 25 Stat.1012....

Act of Mar. 2, 1889, c. 422, 25 Stat.1013 ......

Act of Oct. 1, 1890, c. 1271, 26 Stat.658 ss

Act of Jan. 12, 1891, c. 65, 26 Stat.712...

Act of Feb. 13, 1891, c. 165, 26 Stat.749

Act of Mar. 3, 1891, c. 543, 26 Stat.989.. 6,

Act of June 17, 1892, c. 120,27 Stat.52

Act of July 1, 1892, c. 140, 27 Stat.62

Act of July 13, 1892, c. 164,27 Stat.136...

Act of Feb. 20, 1893, c. 147, 27 Stat. 469...

Act of Mar. 3, 1898, c. 203, 27 Stat.557

Act of Mar. 3, 1893, c. 209, 27 Stat.612 6,

Act of Aug. 14, 1894, c. 290, 28 Stat. 286 cane Passi

Act of Feb. 20, 1895, c. 113, 28 Stat.677

Act of Feb. 20, 1895, c. 114, 28 Stat.679

Act of Mar. 2, 1895, c. 188, 28 Stat.876 is

Act of Feb. 26, 1896, c. 30, 29 Stat.16.....

Act of June 10, 1896, c. 398, 29 Stat. 321... ;

Act of June 7, 1897, c. 31,30 Stat.62...

Act of June 4, 1898, c. 376,30 Stat.429...

Act of June 28, 1898, c. 517,30 Stat.495

Act of July 1, 1898, c. 542, 30 Stat. 567...

Act of July 1, 1898, c. 545, 30 Stat.571

Act of Feb. 22, 1899, c. 185, 25 Stat.676.....

Act of Feb. 28, 1899, c. 222, 30 Stat.909 oe te

Act of Mar. 3, 1899, c. 450, 30 Stat. 1362... sis

Act of June 6, 1900, c. 813, 31 Stat. 672 . 200000000,

Act of Feb. 11, 1901, c. 350,31 Stat. 766

Act of Mar. 1, 1901, c. 676,31 Stat. 861...

Act of May 27, 1902, c. 888,32 Stat.245...

Act of July 1, 1902, ¢. 1361, 32 Stat.636

Act of July 1, 1902, c. 1862, 32 Stat.641

Act of July 1, 1902, c. 1375, 32 Stat.716

Act of Feb. 3, 1903, c. 399, 32 Stat. 795

Act of Mar. 3, 1903, c. 994, 32 Stat. 982 00000000.

— —

POADDDRADwDwSs ANNAN ANN ON 4

Saournannwnunwnow

iv

TABLE OF AUTHORITIES—Continued

i

Act of Feb. 20, 1904, c. 161, 38 Stat. 46 00000.

Act of Apr. 21, 1904, c. 1402, 33 Stat. 189 000.

Act of Apr. 23, 1904, c. 1484, 33 Stat. 254 000.

Act of Apr. 27, 1904, c. 1495, 33 Stat. 302

Act of Apr. 27, 1904, c. 1620, 33 Stat. 319

Act of Apr. 27, 1904, c. 1624, 33 Stat. 352 0...

Act of Apr. 28, 1904, c. 1786, 33 Stat. 539

Act of Apr. 28, 1904, c. 1820, 33 Stat. 567

Act of Dec. 21, 1904, c. 22, 33 Stat. 595 00.

Act of Feb. 8, 1904, c. 553, 33 Stat. 706...

Act of Mar. 3, 1905, c. 1452, 33 Stat. 1060

Act of Mar. 3, 1905, c. 1479, 33 Stat. 1048 5,

Act of Mar. 20, 1906, c. 1125, 34 Stat. 80 0000

Act of Mar. 22, 1906, c. 1126, 34 Stat. 80.0.0.

Act of Apr. 21, 1906, c. 1645, 34 Stat. 124 00

Act of Apr. 26, 1906, c. 1876, 34 Stat. 187 —..

Act of June 5, 1906, c. 2580, 34 Stat. 213 0...

Act of June 21, 1906, c. 3504, 34 Stat. 325.0...

Act of June 28, 1906, c. 372, 34 Stat. 539

Act of Mar. 1, 1907, c. 2285, 34 Stat. 1015

Act of Mar. 2, 1907, c. 2536, 34 Stat. 1230 aes

Act of Mar. 4, 1907, c. 2933, 34 Stat. 1413 _... -

Act of May 29, 1908, c. 217, 35 Stat. 458

Act of May 29, 1908, c. 218, 35 Stat. 460 0. 1, 5,

Act of May 30, 1908, c. 237, 35 Stat. 558 1

Act of May 27, 1910, c. 257, 36 Stat. 440 0.0.

Act of May 30, 1910, c. 260, 36 Stat. 448 0

Act of June 1, 1910, c. 264, 36 Stat. 455

Act of June 25, 1910, c. 431, 36 Stat. 855

Act of Mar. 3, 1911, c. 210, 36 Stat. 1063

Act of Mar. 4, 1911, c. 246, 36 Stat. 1345

Act of May 11, 1912, c. 121, 37 Stat. 111 0...

Act of Feb. 14, 1913, c. 54, 37 Stat. 675 1,

Indian General Allotment Act of 1887, 25 U.S.C.

BD SUR 6B BOG cceccctsceeecseernsesenenesteninttinewatscssisctateoes 3,5

Treaty of April 19, 1858, 11 Stat. 286 4,11

s

_

ow oc

- —

AOmemwmoeraranawmnvraaawmwnmnoaowwoeoweomaaunwnaoaunanwe

v

TABLE OF AUTHORITIES—Continued

Legislative Materials Page

S. Exec. Doc. No. 27, 53d Cong., 2d Sess. (1894) ..13, 19, 20

53 Cong. Rec. 8268 (1894) ................-.....-.---2..2---00- 20

Miscellaneous

Philip P. Frickey, Marshalling Past and Present:

Colonialism, Constitutionalism and Interpreta-

tion in Federal Indian Law, 107 Harvard L. Rev.

Se IID. citiniacectctahatilliadeentieniipitaniecntinniniititeatightitengnanes 15

Richard B. Collins, Indian Consent to American

Government, 31 Ariz. L. Rev. 365 (1989) _......... 15

Restatement 2d of Contracts, § 201(1) (1981)... 3

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 96-1581

STATE OF SOUTH DAKOTA,

. Petitioner,

YANKTON Sioux TRIBE, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE

OF STANDING ROCK SIOUX TRIBE AND

ASSINIBOINE AND SIOUX TRIBES OF

THE FORT PECK RESERVATION IN SUPPORT OF

RESPONDENT YANKTON SIOUX TRIBE

INTEREST OF AMICI CURIAE'

Amici are federally recognized Indian tribes, each with

a Reservation that was allotted and opened to non-Indian

homesteaders by Congress. Act of May 30, 1908, c. 237,

35 Stat. 558 (Fort Peck); Act of May 29, 1908, c. 218,

35 Stat. 460 (Standing Rock); Act of February 14, 1913,

1 Pursuant to Rule 37.6 of the Rules of this Court, counsel for

Amici states that no counsel for a party authored this brief in

whole or part, and that no person or entity other than Amici and

their counsel made any monetary contribution to the preparation or

submission of this brief. All parties have consented to the filing of

this brief amici curiae, and those consents have been filed with

the Clerk.

2

c. 54, 37 Stat. 675 (Standing Rock). Amici have an

interest in the proper development and application of the

law relating to disestablishment.

SUMMARY OF ARGUMENT

1. The Agreement of December 31, 1892 between the

Yankton Sioux Tribe and the United States, ratified by the

Act of August 15, 1894, c. 290, 28 Stat. 286, 314, con-

tains language not found in any other surplus land agree-

ment or Act. Article XVIII of the Yankton Agreement

and Act provides that the Treaty of April 19, 1858—

which established the Reservation boundaries—shall be

“in full force and effect, the same as though this agree-

ment had not been made.” Among the dozens of surplus

land Acts enacted to further its now repudiated allotment

policy, Congress used this language only once: in the

1894 Yankton Act. This unique savings clause must be

given effect—it must not be read as surplusage, or as no

different in meaning from the qualified savings clauses

Congress used in many other surplus land Acts. Rather,

the 1894 Act should be construed, consistent with Article

XVIII and the Act as a whole, to preserve the Reserva-

tion’s boundaries.

2. To the extent the Court finds tension between Arti-

cle XVIII and other provisions in the 1894 Act, the con-

flict must be resolved in favor of continuing the Reserva-

tion boundaries as defined in the 1858 Treaty. County

of Yakima v. Confederated Tribes of the Yakima Indian

Nation, 502 U.S. 251, 269 (1992); County of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 247-48 (1985);

Washington v. Washington Commercial Passenger Fishing

Vessel Ass'n, 443 U.S. 658, 690 (1979).

3. The negotiations between the Yankton Sioux Tribe

and the United States, the legislative history of the 1894

Act, and the executive branch implementation of the Act

contain no statements indicating an intent to change res-

ervation boundaries. During the negotiations leading to

ee EE ees

3

the 1892 Agreement, the Yanktons were reassured that

“there is no cause for apprehension that this agreement

will in any way interfere with the treaty of 1858.” Simi-

larly, nothing in the congressional reports or debate on

the 1894 Act suggests any change in reservation bound-

aries. And, in implementing the Act, President Cleveland

proclaimed “[l]ands within the Yankton Reservation”

opened to settlement. Thus, the circumstances surround-

ing the 1894 Act support continuation of the Reservation

boundaries, not disestablishment.

ARGUMENT

I. THE PROVISIONS OF THE 1892 AGREEMENT AND

1894 ACT PRESERVED THE BOUNDARIES OF THE

YANKTON SIOUX RESERVATION.

The question presented in this case is whether the

Agreement of December 31, 1892 between the Yankton

Sioux Tribe and the United States (“1892 Agreement”),

ratified by the Act of August 15, 1894, c. 290, 28 Stat.

286, 314 (“1894 Act”), effected a change in the bound-

aries of the Yankton Sioux Reservation in South Dakota.

Neither the 1892 Agreement nor the 1894 Act even men-

tions, much less speaks directly to, any intent of the

United States or the Tribe to disestablish the Reservation.’

Nor can an intent to alter the Reservation’s boundaries

properly be implied, as we discuss below.

Several dozen Indian reservations—including those of

Amici tribes—were allotted and to non-Indian

homesteaders in the three decades after the Indian General

Allotment Act of 1887, 25 U.S.C. §§ 331-355. The six

reservation boundary cases this Court has decided over the

2 Both parties to this Agreement—the Tribe and the United

States—are before the Court taking the position that there was no

change in reservation boundaries. See Restatement 2d of Contracts,

§ 201(1) (1981) (“where the parties have attached the same mean-

ing to a promise or agreement .. . it is interpreted in accordance

with that meaning.”).

4

last 35 years have created “a fairly clean analytic struc-

ture” for distinguishing those surplus land Acts that

altered reservation boundaries from those Acts that simply

offered non-Indians the opportunity to purchase lands not

allotted to Indians within established reservation bound-

aries. Solem v. Bartlett, 465 U.S. 463, 470 (1984); see

Hagen v. Utah, 510 U.S. 399, 410-11 (1994); Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau

v. District County Court, 420 U.S. 425 (1975); Mattz v.

Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent,

368 U.S. 351 (1962). The Court has declared that the

most probative evidence of whether diminishment has oc-

curred is the statutory language used to open the Indian

lands. Hagen, 510 U.S. at 411; Solem, 465 U.S. at 470.

But, the Court has not previously had occasion to con-

sider the statutory language that Congress enacted in the

1894 Yankton Act, and nowhere else.

A. The language of the Agreement and Act does not

support a holding of disestablishment.

1. The Article XVIII Savings Clause.

The 1894 Act ratifies a unique savings clause—Arrticle

XVIII—which provides:

Nothing in this agreement shall be construed to abro-

gate the treaty of April 19th, 1858, between the

Yankton tribe of Sioux Indians and the United States.

And after the signing of this agreement, and its ratifi-

cation by Congress, all provisions of the said treaty

of April 19th, 1858, shall.be in full force and effect,

the same as though this agreement had not been

made, and the said Yankton Indians shall continue

to receive their annuities under the said treaty of

April 19th, 1858.

28 Stat. 318 (emphasis added). The 1858 Treaty in

Article I established the boundaries of the Yankton Sioux

Reservation. Treaty of April 19, 1858, 11 Stat. 286. The

1894 Act, by declaring that all provisions of that Treaty

“shall be in full force and effect, the same as though this

5.

agreement had not been made” (Article XVIII), on its

face preserved the integrity and continued existence of

those boundaries.

No other surplus land Act contains a savings clause

like Article XVIII of the 1894 Act—stating without any

qualification that all provisions of a prior treaty “shall be

in full force and effect, the same as though this agree-

ment had not been made... .” 28 Stat. 318.° The three

surplus land Acts at issue in Rosebud, for example, recite

that nothing therein “shall be construed to deprive the

said Indians of the Rosebud Reservation, South Dakota,

of any benefits to which they are entitled under existing

treaties or agreements, not inconsistent with the provisions

of this agreement.” * This was the most common language

where Congress used a savings clause, as fifteen other

agreements ratified by Congress had savings clauses pre-

serving former treaty provisions, but only to the extent

those provisions were not “inconsistent” with the provi-

sions of the agreement.® Four agreements had savings

§ Counsel for Amici Tribes have reviewed the surplus land Acts

adopted after the 1887 General Allotment Act, 24 Stat. 388, 25

U.S.C. §§ 331-355 as set forth in Kappler, Indian Affairs, Laws and

Treaties (Vols. I, III).

* Act of April 23, 1904, c. 1484, 33 Stat. 254, 255 (art. V) (em-

phasis added); see Act of March 2, 1907, c. 2536, 34 Stat. 1230,

1232 §8; Act of May 30, 1910, c. 260, 36 Stat. 448, 452 §11

(art. XI).

5 Act of August 14, 1894, c. 290, 28 Stat. 286, 326 § 16 (art. XI)

(Nez Perce) ; Act of July 1, 1898, c. 542, 30 Stat. 567, 569 (Semi-

nole); Act of June 6, 1900, c. 813, 31 Stat. 672, 674 (art. VI)

(Fort Hall); Act of March 1, 1901, c. 676, 31 Stat. 861, 872 § 44

(Creek); Act of July 1, 1902, c. 1375 32 Stat. 716,727 § 73 (Chero-

kee) ; Act of February 20, 1904, c. 161, 33 Stat. 46, 49 (art. V)

(Red Lake) ; Act of April 27, 1904, c. 1620, 33 Stat. 319 (Sisseton) ;

Act of April 28, 1904, c. 1820, 33 Stat. 567 (art. IV) (Grande

Ronde); Act of March 3, 1905, c. 1452, 33 Stat. 1016 (art. XI)

(Wind River) ;, Act of March 3, 1905, c. 1479, 33 Stat. 1048, 1079,

§6 (art. III) (Port Madison); Act of May 29, 1908 c. 217, 35

Stat. 458 § 7 (Spokane); Act of May 29, 1908, c. 218, 35 Stat. 460,

6

clauses preserving treaty provisions not “in conflict” or

“not affected by” the provisions of the subsequent agree-

ment.* Three more had other limited savings clauses, also

unlike that in the Yankton Agreement.’

§9 (Cheyenne River and Standing Rock); Act of May 27, 1910,

c. 257, 36 Stat. 440, 443 §11 (Pine Ridge); Act of June 1, 1910,

c. 264, 36 Stat. 455, 459 § 14 (Fort Berthold) ; Act of Feb. 14, 1913,

c. 54, 37 Stat. 675, 678 § 10 (Standing Rock).

Among the numerous savings clauses enacted by Congress, the

State relies on but two, both relating to the Crow Tribe, Act of

April 11, 1882, c. 74, 22 Stat. 42 and Act of March 3, 1891, c. 543, 36

Stat. 989, 1039-42, § 31. Brief of Petitioner State of South Dakota

(hereafter “State Br.”) at 26-27. Neither of these Acts contains

the language included in the Yankton Agreement and Act—as

neither provides that all treaty provisions shall be in effect “the

same as though this agreement had not been made.” Moreover, this

Court did not rely on or even discuss these provisions in Montana

v. United States, 450 U.S. 544 (1981), or DeCoteau, 420 U.S, 425,

the cases cited by the State. Finally, a 1904 Crow Act contains a

very different savings clause, preserving earlier treaty provisions

“not inconsistent with” the 1904 Act and expressly stipulating that

all provisions of earlier treaties “inconsistent herewith are hereby

repealed.” Act of April 27, 1904, c. 1624, 33 Stat. 352, 355 (art. VI).

Whatever the original meaning of the 1882 and 1891 Crow savings

provisions, to the extent they purported to preserve reservation

boundaries inconsistent with the 1904 Act, those earlier savings

clauses have been repealed.

® Act of March 1, 1889, c. 317, 25 Stat. 757 (art. V) (Muscogee) ;

Act of March 2, 1889, c. 405, 25 Stat. 888, 896, § 19 (Sioux Nation) ;

Act of June 10, 1896, c. 398, 29 Stat. 321, 353 §9 (art. IX (Black-

feet) ; Act of June 10 1896, c. 398, 29 Stat. 321, 352 § 8 (art. VIII)

(Fort Belknap).

7 Act of March 1, 1889, c. 317, 25 Stat. 757 (Creek) (‘no treaty

or agreement heretofore made and now subsisting is hereby affected,

except so far as the provisions of this agreement supersede and

control the same”) ; Act of March 8, 1893, c. 209, 27 Stat. 612, 644

§ 12 (Pawnee) (agreement does not “repeal, modify or change any

treaty stipulations now in force between the United States and

said ... tribe. . ., except in the manner and to the extent herein

expressly or by necessary implication provided for.”): Act of

February 13, 1891, c. 165, 26 Stat. 749 (art. VIII) (Iowa) (“noth-

ing herein contained shall in any manner affect” claims against the

7

The Yankton savings clause is thus unique, sweeping

and unequivocal. Indeed, as the court below correctly

pointed out, no other surplus land Act contains language

preserving prior rights and interests as “strong” as Article

XVIII. Yankton Sioux Tribe v. Southern Missouri Waste

Dist., 99 F.3d 1439, 1477 (8th Cir. 1996). Congress

could certainly have enacted a more limited savings clause,

as it did in numerous other surplus land Acts. Or Con-

gress could have enacted no savings clause at all, as it did

in the vast majority of surplus land Acts," including four

United States, interests in land outside of Indian territory, or

annuity payments). The Iowa Agreement called for the allotment

and opening to homesteaders of lands of the Iowa Tribe in the

Territory of Oklahoma (formerly Indian territory). The savings

clause language was limited to land “outside of Indian territory.”

Id. By its terms, the savings clause had no application to the lands

being allotted to Indians or opened to settlers.

* Act of Jan. 26, 1887, c. 47, 24 Stat. 367 (Iowa) ; Act of May 1,

1888, c. 213, 25 Stat. 113 (Gros Ventre, Piegan Blood, Blackfeet, and

River Crow) ; Act of July 4, 1888, c. 519, 25 Stat. 240 (Winnebago) ;

Act of Jan. 14, 1889, c. 24, 25 Stat. 642 (Chippewa) ; Act of Feb. 23,

1889, c. 203, 25 Stat. 687 (Shoshones, Bannocks and Sheepeaters),

Act of Mar. 2, 1889, ¢. 391, 25 Stat. 871 (Flathead); Act of

March 2, 1889, c. 405, 25 Stat. 888 (Sioux); Act of Mar. 2, 1889,

c. 421, 25 Stat. 1012 (Pipestone); Act of Mar. 2, 1889, c. 422, 25

Stat. 1013 (Peorias, Miamis) ; Act of Oct. 1, 1890, c. 1271, 26 Stat.

658 (Round Valley); Act of Jan. 12, 1891, c. 65, 26 Stat. 712

(Mission Indians) ; Act of Mar. 3, 1891, c. 543, 26 Stat. 989, 1026

(Couer d’Alene); Act of Mar. 3, 1891, c. 543, 26 Stat. 989, 1032

(‘ort Berthold) ; Act of March 3, 1891, 26 Stat. 989, 1035 (Sisse-

ton); Act of June 17, 1892, c. 120, 27 Stat. 52 (Klamath): Act

of July 1, 1892, c. 140, 27 Stat. 62 (Colville); Act of July 13, 1892,

ce. 164, 27 Stat. 136 (Spokane) ; Act of Feb. 20, 1893, c. 147, 27 Stat.

469 (White Mountain Apache) ; Act of Mar. 3, 1893, c. 203, 27 Stat.

557 (Kickapoo); Act of Mar. 3, 1893, c. 209, 27 Stat. 612, 633

(Puyallup); Act of Mar. 3, 1893, c. 209, 27 Stat. 612, 640 (Chero-

kee); Act of Mar. 3, 1893, c. 209, 27 Stat. 612, 644 (Tonkawa) :

Act of Mar. 3, 1893, c. 209, 27 Stat. 612, 644 (Pawnee); Act of

Mar. 3, 1893, c. 209, 27 Stat. 645 (Cherokee); Act of Aug. 15, 1894,

ce. 290, 28 Stat. 286, 320 (Yakima); Act of Aug. 15, 1894, c. 290,

28 Stat. 286, 296 (Sac and Fox) ; Act of Aug. 15, 1894, c. 290, 28

Stat. 286, 301 (Wyandote); Act of Aug. 15, 1894, c. 290, 28 Stat.

286, 323 (Alsea) ; Act of Feb. 20, 1895, c. 113, 28 Stat. 677 (South-

ern Ute) ; Act of Feb. 20, 1895, c. 114, 28 Stat. 679 (Winnebago) ;

Act of Mar. 2, 1895, c. 188, 28 Stat. 876, 894 ‘(San Carlos); Act of

Mar. 2, 1895, c. 188, 28 Stat. 876, 902 (Otoe) ; Act of Mar. 2, 1895,

c. 188, 28 Stat. 876, 907 (Quapaw) ; Act of Mar. 2, 1895, c. 188, 28

Stat. 876, 895 (Witchita) ; Act of Mar. 2, 1895, c. 188, 28 Stat. 876,

909 (Potawatomi); Act of June 7, 1897, c. 31, 30 Stat. 62, 87

(Uncompahgre-Utes) ; Act of June 7, 1897, ¢. 31, 30 Stat. 62, 92

(Chippewa); Act of June 4, 1898, c. 376, 30 Stat. 429 (Uintah) ;

Act of June 28, 1898, c. 517, 30 Stat. 495 (Choctaw, Chickasaw) ;

Act of June 28, 1898, c. 517, 30 Stat. 495, 500 (Muscogee-Creek) ;

Act of July 1, 1898, c. 545, 30 Stat. 571 (Colville) ; Act of Feb. 28,

1899, c. 222, 30 Stat. 909 (Pottawatomie, Kickapoo) ; Act of Mar. 3,

1899, c. 450, 30 Stat. 1362 (Lower Brule, Rosebud); Act of June 6,

1900, c. 813, 31 Stat. 672, 677 (Comanche), Kiow1, Apache); Act

of June 6, 1900, c. 813, 31 Stat. 672 (Shoshone); Act of Feb. 11,

1901, c. 350, 31 Stat. 766 (Bad River); Act of May 27, 1902, c. 888,

32 Stat. 245 (Mission Indians) ; Act of May 27, 1902, c. 888, 32 Stat.

245 (Klamath); Act of May 27, 1902, c. 888, 32 Stat. 245 (Paiute) ;

Act of May 27, 1902, c. 888, 32 Stat. 245, 263 (Uintah); Act of July

1, 1902, c. 1361, 32 Stat. 636 (Kaw) ; Act of July 1, 1902, c. 1362, 32

Stat. 641 (Choctaw, Chickasaw); Act of Feb. 3, 1903, c. 399, 32

Stat. 795 (Lac Courte Oreille, Lac du Flambeau); Act of Mar. 3,

19038, c. 994, 32 Stat. 982 (Chippewa) ; Act of Apr. 21, 1904, c. 1402,

33 Stat. 189, 194 (Chippewa) ; Act of Apr. 21, 1904, 33 Stat. 189, 217

(Ponca) ; Act of Apr. 23, 1904, c. 1495, 33 Stat. 302 (Flathead) ; Act

of Apr. 28, 1904, c. 1786, 33 Stat. 589 (White Earth); Act of Dec.

21, 1904, c. 22, 33 Stat. 595 (Yakima); Act of Feb. 8, 1904, c. 553,

33 Stat. 706 (Wailaki); Act of Mar. 3, 1905, c. 1479, 33 Stat. 1048,

1069 (Utes); Act of Mar. 3, 1905, c. 1479, 33 Stat. 1071 (Five

Civilized Tribes) ; Act of Mar. 20, 1906, c. 1125, 34 Stat. 80 (Kiowa,

Comanche, and Apache); Act of Mar, 22, 1906, c. 1126, 34 Stat. 80

(Colville) ; Act of Apr. 21, 1906, c. 1645, 34 Stat. 124 (Lower Brule) ;

Act of Apr. 26, 1906, c. 1876, 34 Stat. 137 (Five Civilized Tribes) ;

Act of June 5, 1906, c. 2580, 34 Stat. 213 (Kiowa, Comanche, Apache) ;

Act of June 21, 1906, c. 3504, 34 Stat. 325, 335 (Couer d’Alene) ; Act

of June 21, 1906, c. 3504, 34 Stat. 325, 360 (Sioux) ; Act of June 21,

1906, c. 3504, 34 Stat. 325, 382 (Stockbridge) ; Act of June 28, 1906,

c. 372, 34 Stat. 589 (Osage); Act of Mar. 1, 1907, c. 2285, 34 Stat.

1015, 1021 (Mogui); Act of Mar. 1, 1907, c. 2285, 34 Stat. 1015,

1042 (Sioux) ; Act of Mar. 4, 1907, c. 2933, 34 Stat. 1413 (Apache) ;

Act of May 30, 1908, c. 237, 35 Stat. 558 (Fort Peck); Act of

June 25, 1910, c. 431, 36 Stat. 855, 861 (Kiowa); Act of Mar.

vy»

9

considered by this Court in prior disestablishment cases.°

But Congress chose neither such course—instead enacting

special language in the Yankton Act.

Precisely because it is different, Article XVIII must not

be construed to have the same meaning as narrower savings

clauses Congress used elsewhere. As the Court determined

in West Virginia University Hospitals, Inc. v. Casey, 499

U.S. 83, 101 (1991):

[I}t is not our function to eliminate clearly expressed

inconsistency of policy and to treat alike subjects that

different Congresses have chosen to treat differently.

The facile attribution of congressional ‘f

cannot justify such a usurpation. Where what is at

issue is not a contradictory disposition within the

same enactment, but merely a difference between the

more parsimonious policy of an earlier enactment and

the more generous policy of a later one, there is no

more basis for saying that the earlier Congress forgot

than for saying that the earlier Congress felt differ-

ently. In such circumstances, the attribution of for-

getfulness rests in reality upon the judge’s assessment

that the later statute contains the better disposition.

But that is not for judges to prescribe.

As Casey teaches, this Court’s role is to give effect to the

language Congress enacted, not to presume that differences

in related statutes were inadvertent or unintentional. That

3, 1911, c. 210, 36 Stat. 1063 (Yuma); Act of Mar. 3, 1911, c. 210,

36 Stat. 1063, 1069 (Kiowa); Act of Mar. 4, 1911, c. 246, 36 Stat.

1345 (Hoh); Act of May 11, 1912, c. 121, 37 Stat. 111 (Omaha).

® Hagen, 510 U.S. 399 (1994); DeCoteau, 420 U.S. 425 (1975);

Matiz, 412 U.S. 481 (1973); Seymour, 368 U.S. 351 (1962). The

presence of a limited savings clause, or no savings clause at all, is

not inconsistent with finding continued Reservation boundaries on

other grounds. This Court has found Reservations not to be dis-

established in both situations. See Solem, 465 U.S. 463 (limited

savings clause) ; Seymour, 364 U.S. 351 (no savings clause). Here,

where Congress enacted an unequivocal savings clause, the basis for

finding no disestablishment is all the more clear, as we discuss below.

10

principle applies here. The Yankton savings clause is

plainly different from the savings clauses at issue in, for

example, Rosebud, and should not be presumed to have

the same meaning.”

The State argues that Article XVIII merely preserved

annuities guaranteed in the 1858 Treaty. State Br. at 21.

But Congress knew how to preserve “benefits” from

treaties—such as annuities—when that was its objective.

E.g., Act of April 23, 1904, c. 1484, 33 Stat. 254, 255

(art. V) (Article V of the September 14, 1901 Agree-

ment, at issue, in Rosebud, 430 U.S. 584). That is not

what Congress did in Article XVIII.

Moreover, Article XVIII of the Yankton Agreement

has two separate c one continuing annuities and the

other continuing in force and effect “all provisions of

the said treaty of April 19th, 1858.” Thus, the State’s

position requires this Court to find 1) that Congress in

Article XVIII used different language than it used in other

savings clauses, but intended no difference in meaning,

and 2) that Congress included two clauses in Article

XVIII, but intended only one of them (dealing with

annuities) to have any meaning at all. This Court should

not, we submit, attribute to Congress either an inability

to distinguish between various savings clauses it enacts,

or an intent to include language devoid of meaning.

Instead, Article XVIII should be construed to do what

it says—to preserve the provisions of the 1858 Treaty.

To be sure, Articles I and II of the Act provide for the

sale of unallotted lands—something not contemplated in

the 1858 Treaty. But, apart from these provisions by

which Congress specifically effected a land transfer, Article

XVIII maintains the 1858 Treaty provisions intact. In

other words, in the absence of a specific directive by Con-

gress in the Act, Article XVIII should not be construed by

1° See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 131-35

(1989) (treaty provision different from related provisions should

not be construed as drafting error).

ee =

11

inference or implication to deprive the Tribe of its Treaty

protected rights.

Among the core rights protected by the 1858 Treaty is

the Tribe’s right to its Reservation, within boundaries de-

fined by the Treaty. Since no language in the Act by its

terms purports to alter the Reservation boundaries, Article

VIII maintains those 1858 boundaries. This reading of

the Act harmonizes its provisions—implementing the spe-

cific land purchase provided in Articles I and II, while at

the same time giving life to the general principle that

icle XVIII preserves the terms of the 1858 Treaty.

2. The Article I Cession and the Article 11 Payment.

Article I of the 1892 Agreement recited that the

Yankton Sioux 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 the reservation,” 28 Stat. 286, 314. Article II of the

1892 Agreement stipulated that the United States would

make a $600,000 lump sum payment for the unallotted

Yankton Sioux lands. /d. at 315. While this Court has

referred to language of cession and sum-certain payment

provisions as creating “an almost insurmountable presump-

tion” of disestablishment, it did so in the context of a

surplus land Act that did not have a broad savings clause

like Article XVIII of the Yankton Agreement. Solem,

465 U.S. at 470-71 (1984). Article XVIII, by its express

— makes any presumption of disestablishment unavail-

In DeCoteau, this Court held that an 1889 Agreement

containing language of cession and requiring payment of

a sum certain by the United States disestablished the

Sisseton Wahpeton Reservation. DeCoteau, 420 U.S. 425

(1975). A fundamental difference between the 1889

Sisseton Wahpeton Agreement and the 1892 Yankton

Agreement is that the Sisseton Wahpeton Agreement had

no savings clause, while the Yankton Agreement had an

portance of giving effect to the savings clause ~

Vechten Aaueoaas Congress should not be viewed as

having disestablished the Sisseton Wahpeton Reservation

in 1891, and then be deemed to have added different lan-

ge, but to have intended the same result, with regard

to the Yankton Reservation in 1894. Rather, the inclusion

of Article XVIII in the Yankton Agreement indicates a

change from Sisseton Wahpeton, and a continuation of the

Reservation boundaries at Yankton.

language states clearly that the Yankton Reservation was

preserved—as the provision refers to the “reservations” ”

and indicates that the lands ceded are included among

the State’s position would require. Rather, the clear refer-

ence to the continuing existence of the Reservation in the

1892 Agreement and 1894 Act must be given effect.

11 The reference to “reservations” is to the Yankton Sioux Reser-

vation that is the subject of this case, and the Pipestone Reservation

referred to in Article XVI of the Agreement.

12 The Petitioner argues that Article XVII raises a presumption

of disestablishment since making the ceded lands subject to federal

liquor laws would be “surplusage” if those lands remained part of

“Indian country” and thus already subject to such laws. Stat. Br.

at 17-19. But as this Court pointed out in Solem, 465 U.S. at 468,

13

See also Article I (cession of lands “within the limits of

the reservation”); Article XIII (assuring peaceable pos-

session of allotments “on the reservation” ).

Article VIII of the 1892 Agreement provided that

“[sJuch . . . lands hereby ceded and sold to the United

States, as may now be occupied by the United States for

River and Standing Rock Reservations, Act of May 29,

1908, c. 218, 35 Stat. 460, this Court stated that “[i]t is

opened area would remain part of the reservation.” Solem,

465 US. at 474. Article VIII, therefore, supports the

proposition that Congress did not intend in 1894 to abro-

gate the reservation boundaries.”

at the time of the Agreement Indian country was understood to

exclude lands held by non-Indians, even if located within reserva-

tion boundaries, so inclusion of liquor controls merely reflected the

parties’ intent to carry out the Tribe’s express wish for continued

prohibition throughout the area, whether Indian or non-Indian

owned. S. Exec. Doc. No. 27, 53d Cong., 2d Sess. (1894) (hereafter

“Negotiations”) at 21. In any event, whatever Congress in 1894

understood to be the law regarding liquor in Indian country, cer-

tainly it knew what was meant by using the term “reservation”

in the Act.

18 Similarly, Articles IV and V provided that most of the monies

paid to the Tribe should be held in a fund and paid out “for the

benefit of the Tribe in such manner as the Secretary of the Interior

shall determine,” for purposes such as “schools,” “courts of justice

and other local institutions for the benefit of the Tribe.” Article V

also provided for congressional appropriations for these purposes

of “an amount equal to or greater than” the monies expended from

the fund. Article V, Section 2 provided that the fund should be

distributed only when the “Indians shall have received a complete

(fee) title to their allotted lands.” These articles contemplated a

continuing federal responsibility, and, like Article VIII, are consist-

ent with continued reservation existence.

Dakota” would be s usage since the State already had

lands provisions are “suspect” as “independent evidence

of a Congressional intent to diminish.” Solem, 465 U.S.

at 475 n.18.

B. Any ambiguity in the Agreement and Act must

be resolved in favor of continued existence of the

Reservation.

Assuming arguendo that the language of Article XVIII

and the 1894 Act as a whole is not clear, it is well settled

that when this Court interprets provisions of statutes

claimed to alter Indian treaties, it invokes the longstanding

rule that “legal ambiguities are resolved to the benefit of

the Indians.” DeCoteau, 420 U.S. at 447; Hagen, 510

U.S. at 411; see also Carpenter v. Shaw, 280 U.S. 363,

367 (1930). This canon of construction is “rooted in the

unique trust relationship between the United States and

the Indians.” County of Oneida v. Oneida Indian Nation,

470 U.S. 226, 247 (1985); see also Washington v. Wash-

ington Commercial Passenger Fishing Vessel Ass’n., 443

U.S. 658, 675 (1979). com pong explained that

when considering surplus cts, iminishment .. .

will not be lightly inferred,” Solem, 465 U.S. at 470;

15

Hagen, 510 U.S. at 411, and that, in this text, the

principle of construing ambiguities for the benefit of the

Indians must be given “the broadest possible scope.”

DeCoteau, 420 U.S. at 447.

This canon of construction is not simply a default prin-

ciple or a tie-breaker rule. Rather, it expresses a powerful

rule of public policy central to our political system." Basic

to our constitutional system is the principle that govern-

ment can operate only with consent of the governed. In-

dians were initially incorporated into the American politi-

cal system through treaties like the 1858 Yankton Sioux

Treaty, in which tribes gave their assent on behalf of their

members to that incorporation and to subjecting them-

selves to the overriding power of Congress.“ For this

reason, treaties like the 1858 Yankton Sioux Treaty are

fundamental documents setting forth the terms of the

political relationship between tribes and the United States,

much like the Constitution sets forth the terms of the

political relationship between states and the United States."*

Thus, this canon of construction expresses the rule that the

Original intent of treaties by which tribes gave consent

to political incorporation into the United States ought to

be preserved unless a subsequent statute “plainly” and

“unambiguously” altered the treaty. E.g., Oneida, 470

US. at 247-48.

This principle has been at the heart of this Court’s

Indian jurisprudence from the beginning. In Worcester

v. Georgia, 31 U.S. (6 Pet.) 515 (1832) this Court held

that the Cherokee Nation's right to self-government was

not divested, despite Treaty language giving Congress the

right of “managing all their affairs.” Worcester, 31 U.S.

'* See generally Philip P. Frickey, Marshalling Past and Present:

Colonialism, Constitutionalism and Interpretation in Federal Indian

Law, 107 Harv. L. Rev. 381, 413-19 (1993).

See generally Richard B. Collins, Indian Consent to American

Government, 31 Ariz. L. Rev. 365 (1989).

6 See Frickey, 107 Harv. L. Rev. at 413-19, 426-29.

16

Shenae eortenn Gants : tal authority, “it would

have been openly avowed.” Id. at 554; see also Ex parte

Crow Dog, 109 U.S. 556 (1883) (statute authorizing

Congress to “secure to . . . [the Tribe] an orderly govern-

ment” construed not to remove tribal self-government).

This principle of safeguarding tribal rights against all but

the most explicit actions by Congress has been recog-

nized, without exception, for more than a hundred years.

Choate v. Trapp, 224 U.S. 665, 675 (1912).

is Court continues to apply this canon strictly. In

cosas of Yakima v. Confederated Tribes of the Yakima

Indian Nation, 502 U.S. 251 (1992), Justice Scalia,

s ing for the Court, declared:

- When we are faced with these two possible construc-

tions, our choice between them must be dictated by

a principle rooted in this Court's Indian juris-

prudence: “[S}tatutes are to be construed liberally

in favor of the Indians, with ambiguous provisions 1n-

terpreted to their benefit.” Montana v. Blackfeet

Tribe, 471 U.S. at 766. See also McClanahan v.

Arizona State Tax Comm'n, 411 U.S. at 174.

Id. at 269; see also United States v. Dion, 476 U.S. 734,

738 (1986); Menominee Tribe of Indians v. United

States, 391 U.S. 404, 412 (1968).

At a minimum, the Article XVIII savings clause, and

the other provisions discussed above, make untenable the

position that the 1892 Agreement and 1894 Act constitute

“clear,” “plain” and “unambiguous” Congressional intent

to abrogate Indian treaty rights defining the boundaries

of the Yankton Sioux Reservation. So, should this Court

see any tension between Article XVIII and other provi-

sions of the 1892 Agreement, the canons of construction

mandate that the Agreement be construed to preserve the

Reservation’s boundaries.

17

Il, EVENTS SURROUNDING EXECUTION AND RATI-

FICATION OF THE 1892 AGREEMENT SHOW NO

INTENT TO DISESTABLISH THE YANKTON

SIOUX RESERVATION.

This Court has noted that “[wJhen events surrounding

the passage of a surplus land Act—particularly the man-

ner in which the transaction was negotiated with the tribes

involved and the tenor of legislative Reports presented to

Congress—unequivocally reveal a widely held, contempo-

raneous understanding that the affected reservation would

shrink as a result of the proposed legislation,” the Court

has been willing to find that Congress intended to diminish

a reservation. Solem, 465 U.S. at 471. But, no such un-

equivocal understanding existed in this case. To the con-

trary, contemporaneous statements by Congress and the

Executive officers responsible for implementing the 1894

Act indicate that the Yankton Sioux Reservation survived

unchanged.

A. Congress expressed continued Reservation existence.

As noted above, Congress in the 1894 Act itself re-

ferred to the Yankton Reservation as having continued

vitality. Congress did so again less than two years later,

by enacting a measure granting to “all settlers who made

settlement under the homestead laws upon lands in the

Yankton Indian Reservation . . .” a leave of absence for

one year.’ Act of February 26, 1896, c. 31, 29 Stat. 16

(emphasis added). Moreover, the same 1896 Act, in a

separate section, extended for one year the time for proof

and payment by settlers under the homestead laws “upon

any lands of any former Indian reservation in the State

of South Dakota.” Id. at § 3. Thus, Congress in 1896

both referred to the lands sold by virtue of the 1894 Yank-

1? By contrast, Congress in a statute enacted one year after the

first Rosebud opening statute described the homesteaded lands as

“lands which were heretofore a part of the Rosebud Reservation.”

33 Stat. 700, quoted in Rosebud, 430 U.S. at 608 n.25.

18

ton Act as an ongoing “Reservation,” and used completely

different language when referring to lands of any “former

Indian reservation.” As this Court observed in Solem, 465

U.S. at 471, “Congress’ own treatment of the affected

areas, particularly in the years immediately following the

opening,” has value in determining Congress intentions as

to disestablishment. The clear statutory references in 1894

and 1896 to the Yankton “Reservation” are significant re-

flections of Congressional intent.

B. Statements and actions by executive officers contem-

poraneous with the Agreement and Act support the

continued existence of the Reservation.

In his Proclamation of May 16, 1895, 29 Stat. 865,

opening the Yankton Sioux Reservation to settlement

under the 1894 Act, President Cleveland declared that the

lands so opened were described in a “Schedule of Lands

within the Yankton Reservation, South Dakota... .” (em-

phasis added). By contrast, President Theodore Roose-

velt’s Proclamation opening the lands in Rosebud con-

tained no such reference to the “Reservation,” and indeed

constituted an “unambiguous, contemporaneous statement

by the Nation’s Chief Executive of a perceived disestab-

lishment” which strongly evidenced an intent by Congress

to change reservation boundaries. Rosebud, 430 US. at

602-03. President Cleveland’s statement regarding the

“Yankton Reservation” is likewise persuasive evidence of

what Congress intended in the 1894 Act.

Past decisions of this Court which found reservation

boundaries to be disestablished have relied on clear state-

ments during negotiations indicating disestablishment. In

some instances, the Court has referred to express state-

ments by tribal representatives. DeCoteau, 420 U.S. at

433 (“[w]e never thought to keep this reservation for our

lifetime”); id. at 435 n.16 (“[w]e can buy for ourselves

what we need if payment is made in cash, and then we do

not care to have an agency here after the surplus lands

19

have been sold”). The Court in Hagen, 510 U.S. 399

(1994), relied upon the explanation made by the negotia-

tor for the United States to the Indians that “congress has

provided legislation which will pull up the nails which hold

down that [reservation boundary] line and after next year

there will be no outside boundary line to this reservation.”

Id. at 417 (citations omitted). The Court viewed this

statement as reflecting “the contemporaneous understand-

ing” conveyed to the Indians that the Reservation would

be diminished.”

There is no evidence in the negotiations with the Yank-

ton of any such contemporaneous understanding. To the

contrary, the Commissioners who negotiated the 1892

Agreement for the United States, when forwarding the

Agreement to Congress, wrote about “the settlement and

improvement of the reservation by white people .. . .”

Negotiations at 18 (emphasis added). Likewise, John P.

Williamson, a missionary and advisor to the Yankton,

wrote “I have read the agreement you present the Yankton

Indians . . . I can say to the Indians that I believe the

terms of this agreement are the most liberal that could be

granted them at this time . . . And further there is no

cause for apprehension that this agreement will in any way

interfere with the treaty of 1858.” Negotiations at 84.

These statements inform the contemporaneous understand-

18 Similarly, in Rosebud, the Government's Inspector McLaughlin,

in negotiating with the Rosebud Tribe explained that “‘[t]he

cession of Gregory County’ by ratification of the Agreement, ‘will

leave your reservation a compact, and almost square tract, and would

leave your reservation about the size and area of Pine Ridge Reser-

vation.’” Rosebud, 430 U.S. at 591-92. This Court determined -

that such language created “an unmistakable baseline purpose of

disestablishment.” Jd.

® The principle that treaties and agreements are to be considered

as the Indians understood them is elemental. Choctaw Nation v.

Oklahoma, 397 U.S. 620, 631 (1970): Tulee v. Washington, 315

U.S. 681, 684-85 (1942); Jones v. Meehan, 175 U.S. 1, 11 (1899).

20

ing of the 1892 Agreement and stand in stark contrast to

the statements made during the negotiations at issue in

DeCoteau, Rosebud and Hagen.

C. The legislative history of the 1894 Act shows no

intent to disestablish the Reservation.

The legislative history of the 1894 Act is similarly bar-

ren of any evidence of irtent to change reservation boun-

daries.” When the 1892 Agreement came before Congress

for ratification, the House of Representatives initially

amended its terms to provide for payment to the Yankton

Sioux Tribe only as portions of the unallotted lands were

sold to settlers. 53 Cong. Rec. 8268 (1894). The House

later reconsidered and withdrew this amendment. /d. at

8268-8271. Nothing in the debate gives any indication

that any member of the House thought changing the

method of payment had anything to do with diminishing

the Reservation.** Direct discussion of reservation boun-

daries is entirely absent from the Congressional reports

and debates.

2° During the course of debate, two Congressmen referred to plac-

ing the surplus lands in the “public domain,” but it is not clear that

these references were to the Yankton cession and, even if they were,

this Court has held that isolated references such as this are “hardly

dispositive.” Solem, 465 U.S. at 475.

21 Likewise, the negotiations leading to the 1892 Agreement reveal

that at the outset both the Tribe and the U.S. treaty commissioners

favored a cession through “appraisal and sale”—with the Indians

receiving payment only from the actual proceeds. Negotiations at

77-78. The parties ultimately agreed to payment of a fixed price for

a variety of reasons including certainty of amount, and ease of resale

to settlers. Not a shred of evidence exists in the record of negotia-

tions to suggest that changing from appraisal and sale to a fixed

price might also lead to eliminating the Reservation boundaries.

Negotiations at 75-78.

21

CONCLUSION

Where this Court has found that Congress disestablished

a Reservation, that finding has been based on a confluence

of factors—strong and consistent statutory language suited

to disestablishment, surrounding circumstances providing

substantial evidence of a contemporaneous understanding

of disestablishment, and a pragmatic view that the area in

question had in fact lost its Indian character. See Solem,

465 U.S. at 470-71.

In this case, none of these factors is present. The 1892

Agreement and 1894 Act contain a unique savings pro-

vision (Article XVIII), refer several times to a continuing

“reservation” (Articles I, XIII and XVII), and include

additional provisions reflective of continued reservation

existence (Articles IV, V and VIII). Only by depriving

Article XVIII of its plain meaning, and ignoring the force

of Congress’ own references to a continuing reservation,

could the language of the Agreement and Act be viewed

as consistent with disestablishment.

Moreover, the negotiations leading to the 1892 Agree-

ment, and the legislative history of the 1894 Act, are com-

pletely devoid of the kind of statements regarding reserva-

tion boundaries that this Court has relied on in finding

disestablishment in other cases. The best evidence of the

contemporaneous understanding here is the use of the term

“reservation” by Congress itself in the 1894 Act and again

in 1896, and by the President in his proclamation opening

the lands in 1895.

And finally, at Yankton, the “strong tribal presence in

the opened area has continued until the present day,” “the

seat of the tribal government is now located there” and

“most important tribal activities” and the continued opera-

tion of federal Indian programs take place there. Solem,

465 U.S. at 480. The ongoing presence of a significant

number of tribal members and an active tribal government

22

on the lands at issue further supports continued reservation

existence.

In short, particularly since it must “resolve any ambi-

guities in favor of the Indians” and “not lightly find dimin-

ishment” ~ this Court should hold that the 1894 Act did

not disestablish the Yankton Sioux Reservation. The de-

cision below should be affirmed.

Respectfully submitted,

REID PEYTON CHAMBERS *

ARTHUR LAZARUS, JR., P.C.

WILLIAM R. PERRY

KYLE T. NAYBACK

SONOSKY, CHAMBERS, SACHSE

& ENDRESON

1250 Eye Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 682-0240

Attorneys for Amici Curiae

* Counsel of Record

22 Hagen, 510 U.S. at 411 (1994).