Amicus Curiae Brief — Nebrasks v. Parker, 136 S. Ct. 27 (2015) (No. 14-1406)

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No. 14-1406

3n The

Supreme Court of the Anited States

STATE OF NEBRASKA, et ai.,

Petitioners,

MITCH PARKER, et ai.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

BRIEF FOR THE NATIONAL CONGRESS OF

AMERICAN INDIANS, ET AL. AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Marc D. SLONIM

Counsel of Record

RICHARD M. BERLEY

ZIONTZ CHESTNUT

2101 Fourth Avenue, Suite 1230

Seattle, WA 98121

(206) 448-1230

mslonim@ziontzchestnut.com

DONALD R. WHARTON

NATIVE AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

wharton@narf.org

JOHN DOSSETT

NATIONAL CONGRESS OF AMERICAN INDIANS

1516 P Street NW

Washington, DC 20005

(202) 466-7767

John_Dossett@NCAI org

Counsel for the National Congress of American Indians

Counsel for Amici Curiae

{Additional Amici Curiae Are Listed On The Inside Cover]

—- - |

COCKLE LEGAL BRIEFS (800) 225-4964

WWW COCKLELEGALBRIEFS.COM

ADDITIONAL AMICI CURIAE

Affiliated Tribes of Northwest Indians; Bois Forte Band

of Chippewa; Eastern Shoshone Tribe; Ewiiaapaayp Band

of Kumeyaay Indians; Elk Valley Rancheria, California;

Fond du Lac Band of Lake Superior Chippewa; Great

Lakes Indian Fish & Wildlife Commission, Odanah,

Wisconsin; Grand Portage Band of Lake Superior

Chippewa; Hoopa Valley Tribe; Lac Courte Oreilles Band

of Lake Superior Chippewa Indians, Hayward, Wisconsin;

Leech Lake Band of Ojibwe; Lower Sioux Indian

Community in the State of Minnesota; Mille Lacs Band of

Ojibwe; Northern Arapaho Tribe; Minnesota Chippewa

Tribe; Oneida Tribe of Indians of Wisconsin; Prairie Island

Indian Community; Quapaw Tribe of Oklahoma (the

O-Gah-Pah); Red Lake Band of Chippewa Indians; The

Sokaogon Chippewa Community, the Mole Lake Band of

Lake Superior Chippewa; Swinomish Indian Tribal

Community; White Earth Band of Chippewa Indians.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................ccccccceeeeeees iii

INTEREST OF AMICI CURIAE ..000.........000000000000- 1

SUMMARY OF ARGUMENT ..........................2200e 1

I icnrsticsicitninsicintenaatinesiiptiainncenetninaaiamtaiunaasies 9

I. Changing the Court’s Longstanding Test

for Determining Whether a Surplus Lands

Act Diminished a Reservation Would Up-

set Settled Expectations and Promote Un-

necessary Litigation. ....................ccceceseeeeeeeees 9

II. Changing the Court’s Longstanding Test

for Determining Whether a Surplus Lands

Act Diminished a Reservation Is Unneces-

i csccctasicnndainntsianinteadcintataatiintiniimansaieuiiions 18

A. The Solem Test Already Permits Con-

sideration of Post-Enactment Events.... 19

B. Petitioners and Their Amici’s Concerns

Regarding the Inclusion of Non-Indian

Communities within Indian Reserva-

tions Are Overstated and Misleading..... 20

III. Petitioners’ and Their Amici’s Attempts

to Distort or Replace This Court’s Long

Established Approach to Determining the

Effect of a Surplus Lands Act Would Im-

properly Displace Congress’s Constitutional

ee SII cccnvccevssenencssneentccenecnsens 31

TABLE OF CONTENTS — Continued

Page

A. Petitioners’ Attempt to Change the

Weight Given to the Solem Factors Is

Inconsistent with Sound Principles of

Statutory Construction ......................++. 32

B. The Court Should Not Abandon the

Solem Test in Favor of a Test Based on

City of Sherrill that Ignores Congres-

ITD scuiiictectsisiininneidinipcieatineainbaiR ess 35

IY cntncisenssmemensmsemmemnesmeenimnmenint 40

lil

TABLE OF AUTHORITIES

Page

CASES

Alaska v. Native Village of Venetie Tribal Gov't,

EERE RR RE ES ct AES Ne a 10

Atkinson Trading Co. v. Shirley, 5382 U.S. 645

RIE aE A I NaS Res ESS A EN es a 24

Beardslee v. United States, 387 F.2d 280 (8th

ERASE Sete oro a eins OO Oe 15

Cass Cty. v. Leech Lake Band of Chippewa In-

I, Ge es I Cir ccaccctcnsceccctecscesscctiviess 6, 40

Chapman v. United States, 500 U.S. 453 (1991)....... 33

City of New Town, North Dakota v. United

States, 454 F.2d 121 (8th Cir. 1972) ...................002. 15

City of Sherrill v. Oneida Indian Nation, 544

Se access ieiiibabalsiniiadhpanninanniiia passim

City of Timber Lake v. Cheyenne River Sioux,

10 F.3d 554 (8th Cir. 1993), cert. denied, 512

ERR ES ST Re - 6, 7

Colorado River Indian Tribes v. Parker, 705

ie I SEP ENE, GE Rttindccscccssscsasescnssdcedcesnsens 14

Confederated Salish and Kootenai Tribes of the

Flathead Reservation v. Namen, 665 F.2d 951

ER REE EE REAPER em RS 14

Confederated Tribes of Chehalis Indian Reser-

vation v. Washington, 96 F.3d 334 (9th Cir.

haat lec eat tented eaeecldiadleaalbivadleni 13

TABLE OF AUTHORITIES — Continued

Page

Cty. of Mille Lacs v. Benjamin, 262 F. Supp. 2d

990 (D. Minn. 2003), aff’d, 361 F.3d 460 (8th

Cir. 2004), cert. denied, 543 U.S. 956 (2004).......... 21

DeCoteau v. Dist. Cty. Ct. for the Tenth Judicial

Reig ee ee I I ictencnnidcsticnteccinintesenenssnes 9, 20

Duncan Energy Co. v. Three Affiliated Tribes of

Fort Berthold Reservation, 27 F.3d 1294 (8th

SIR AR ec SARTRE Sr nee a IE vo a 13

Ellis v. Page, 351 F.2d 250 (10th Cir. 1965)............... 15

Gobin v. Snohomish County, 304 F.3d 909 (9th

Sey TITITTET ilitoacelinidebceinibioneieaiatudhdehiaiiinunimsinisiaidindmtinrenateedtiid 25

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

denied, 511 U.S. 1047 (1994) 00... eees passim

Kills Plenty v. United States, 133 F.2d 292 (8th

SIE UTIs baidniindcusacelebcuubeincendnimaiiciatedinninasiinmniantaneanid 39

King v. Burwell, 135 S. Ct. 2480 (2015)..................... 34

Leech Lake .Band of Chippewa Indians v.

Herbst, 334 F. Supp. 1001 (D. Minn. 1971)............ 15

Leech Lake Band v. Cass Cty., 108 F.3d 820

(8th Cir. 1997), aff’d in part and rev'd in part

on other grounds, 524 U.S. 103 (1998)................... 13

Lower Brule Sioux Tribe v. South Dakota, 711

IS MII si ccininiinticnitiishniinnsidipiobebieenimsenannens 14

Mattz v. Arnett, 412 U.S. 481 (1973).............. ccc cceee eee es i)

Melby v. Grand Portage Band of Chippewa,

U.S. Dist. LEXIS 24061; 1998 WL 1769706

Se I MII siccsedaniniseienaatebdinnniaiassiasedsintiienicisetes 13

TABLE OF AUTHORITIES — Continued

Page

Montana v. United States, 450 U.S. 544 (1981) .......... 5

Muscogee (Creek) Nation v. Pruitt, 669 F.3d

tence 22

Nevada v. Hicks, 533 U.S. 353 (2001).................. 16, 30

New York ex rel. Ray v. Martin, 326 U.S. 496

SPARSE TI ae A ae See ea ee eae meen 23

Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505 (1991) ......0....... cee eeeeeeeee 30

Oliphant v. Suquamish Tribe, 435 U.S. 191

a asian aceha ahaa aad aieatatialaall 5, 23

Oneida Tribe of Indians of Wisconsin v. Village

of Hobart, Wis., 542 F. Supp. 2d 908 (E.D.

| ES aT ATE E Ee IRENE: eR 17, 25

Oneida Tribe of Indians of Wisconsin v. Village of

Hobart, Wis., 732 F.3d 837 (7th Cir. 2013)........ 17, 30

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir.

NLRC ae ee ne eee 12, 38

Pittsburg & Midway Coal Mining Co. uv.

Watchman, 52 F.3d 1531 (10th Cir. 1995)................ 6

Pittsburg & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (10th Cir. 1990) ..................... eee 14

Plains Commerce Bank v. Long Family Land &

Cattle Co., 554 U.S. 316 (2008)...................... ee eeeeee 24

Rice v. Rehner, 463 U.S. 713 (1983).................00.0000- 6, 7

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

SRE REE ae ree ee 9, 11, 20, 33, 37

TABLE OF AUTHORITIES — Continued

Page

Santa Clara Pueblo v. Martinez, 436 U.S. 49

SIE LAR REPO 3 Aa a Ea ee a ee 10

Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351 (1962)............. 4,9, 11, 20

Shawnee Tribe v. United States, 423 F.3d 1204

EERE, a ana a eR 13

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

South Dakota v. Yankton Sioux Tribe, 522 U.S.

cri tsins Ride hilt idinatedineeinilnediabiheesnihnasiiamnineed passim

State v. Clark, 282 N.W.2d 902 (Minn. 1979)............ 15

State v. Davids, 194 Wis.2d 386, 534 N.W.2d 70

SERRE RRR SRE eae Sak EES ner eo nator seen 15

State v. Johnson, 212 Wis. 301, 249 N.W. 284

TERE REESE eee se ee A te we nO OT EE eae 39

State v. Romero, 142 P.3d 887, 140 N.M. 299

EERE EA ens Ot Oe Ae a 15

United States v. Celestine, 215 U.S. 278

ESR ACIDE em ree ee ee Rae eee 2,3, 10

United States v. Frank Black Spotted Horse,

re NE: BID ccricicnninncnceniensenpinadineanainenaces 39

United States v. Grey Bear, 828 F.2d 1286 (8th

Cir.), reh’g denied, 836 F.2d 1086, reh’g

granted, vacated in part, 836 F.2d 1088

(RIESE ES nears errs Mente oo tee one Oe eee Oe 14

United States v. Lara, 541 U.S. 193 (2004)........... 8,10

United States v. Mazurie, 419 U.S. 544 (1975)......6, 10

vii

TABLE OF AUTHORITIES — Continued

Page

United States v. McBratney, 104 U.S. 621

United States v. Minnesota, 466 F. Supp. 1382

(D. Minn. 1979), aff'd sub nom. Red Lake

Band v. Minnesota, 614 F.2d 1161 (8th Cir.

EEA RARE RRE AEEE TREN La oa Re a oe 14

United States v. Philadelphia Nat. Bank, 374

REET SR eee ee Tens ea 33

United States v. Standish, 3 F.3d 1207 (8th Cir.

REESE AEP BPRS ree vines MASH nae eee eae 13

United States v. Webb, 219 F.3d 1127 (9th Cir.

GEIR eer SERIE or eke na eon era oe ON 13

White Earth Band of Chippewa Indians v.

Alexander, 518 F. Supp. 527 (D. Minn. 1981),

aff’d, 683 F.2d 1129 (8th Cir. 1982)........................ 14

White Mountain Apache Tribe v. Bracker, 448

aii nieaatbnnieile 22

Wisconsin v. Stockbridge-Munsee Cmty., 554

a is cicrcticeniesesiecibianineninininennens 12

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010

SE Ae eI nS en a ee 13

STATUTES

I ict iesiiciachinichceiinceihcenieninei 8, 18, 38, 39

St I icesciniciiideicniidindniniiidiodantiomdadioniiil 6, 18, 40

I sii seciienlenianibenaiaionneill 8, 18, 39

Bee es 0 Si etscececicsavesninicseceespessencnsed 6, 8, 18, 39, 40

vill

TABLE OF AUTHORITIES — Continued

Page

NS i iciecriceceiiassiiincaiieiitibatdii 6, 7, 8, 40

ESTE Ie Caren D ee mE weN 23

AIT cicatricial ihielaceebdiniiaiainaniil 36

a eetiniuamieniial 27

| SSA Saeco N E 22

EET SEES Ss art aa ne NS a NTT 39

TR SETS OO TT 31

ELS Re ET 31

Mont. Code Ann. § 18-11-101 ..................cccscsessssssreeees 31

<a NeNn nna 30

NR Ts SI I cris cncietnneiceceesioninntenneneienionesanisiae 31

Res. 37, 80th Leg., Ist Sess. (Ne. 1969)..................... 23

SITE TIT cininal nice ieesddinluiadiedadidinonseibdeisiinninentininadinitiad 31

REESE a OTR OT 31

FEDERAL REGULATIONS

Dept. of Interior, Notice of Acceptance of Retro-

cession Jurisdiction, 35 Fed. Reg. 16,598

SEE TUTE idbcidisheersinnesatahidibadiannicegbeinenintnuiindietes 24

OTHER AUTHORITIES

Agreement for the Collection and Dissemination

of Motor Fuel Taxes (2005), http://revenue.

nebraska.gov/fuels/legal/Agreement%20with%

200maha%20Tribe%20Sept%202005. pdf.............. 28

TABLE OF AUTHORITIES — Continued

Child Welfare, Adult and Child Protection and

Safety Services, and Juvenile Services Con-

tract (2011), http://dhhs.ne.gov/children_family_

services/Contracts/4725304OmahaAPSCPS. pdf....

Cooperation Agreement [with the City of Green

Bay] (1984), https://oneida-nsn.gov/uploaded

Files/wwwroot/Government/Laws_and_Policies/

CITYofGreenBayOHACooperationAgreement.

Si ivsiiciscsaccsiiisansintesuiiinaniitinintantipsiniaiiatmiainint is

Cross-Deputization Agreement By and Between

the Bureau of Indian Affairs, the Nebraska

State Patrol, and the Winnebago Tribe of Ne-

braska (2001), https://www.walkingoncommon

grourd.org/state.cfm?topic=12&state=NE........

Exchange of Services Agreement Between Oneida

Tribe of Indians of Wisconsin and Brown

County (2012), https://oneida-nsn.gov/uploaded

Files/wwwroot/Government/Laws_and_Policies/

BrownCountyExchangeofServicesAgreement.

Indian Child Welfare, Adult and Child Pro-

tections and Safety Services, and Juvenile

Service Agreement (2010), http://dhhs.ne.gov/

children_family_services/Contracts/3696904

i stihiceinccnicstcsicstsinsictsibiindacasainniiaandaaaiin

Page

—_ 28

TABLE OF AUTHORITIES — Continued

Intergovernmental Service Agreement Between

Oneida Tribe of Indians of Wisconsin and

Outagamie County Drainage Board (2009),

https://oneida-nsn.gov/uploadedFiles/wwwroot/

Government/Laws_and_Policies/OutagamieCounty

DrainageBoardIntergovernmentalService.pdf

Interlocal Agreement for the Formulation of the

Northeast Nebraska Enterprise Zone Asso-

ciation under the Nebraska Enterprise Zone

Act (1994), http://omaha-nsn.gov/wp-content/

uploads/2013/06/Appendix-I-Northeast-Nebraska-

Enterprise-Zone-Association.pdf....................+.

National Congress of American Indians, Policy

Research Center, Population and Land Area

of Cities/Towns within Reservations or Ohkla-

homa Tribal Statistical Areas (2015), http//www.

ncai.org/resources/ncai_publications/analysis-

of-cities-and-towns-inside-reservations ...........

Mark Fogarty, “The Growing Economic Might

of Indian Country,” Indian Country Today,

(March 15, 2013), http://Andiancountrytoday

medianetwork.com/2013/03/15/growing-economic-

might-indian-country-148196...................000000

Service Agreement Between Oneida Tribe of In-

dians of Wisconsin and Brown County (2008),

https://oneida-nsn.gov/uploadedFiles/wwwroot/

Government/Laws_and_Policies/BrownCounty

ServiceAgreementandAmendments. pdf...........

Page

sommes 29

TABLE OF AUTHORITIES — Continued

Service Agreement Between Oneida Tribe of

Indians of Wisconsin and City of Green Bay

(2009), https://oneida-nsn.gov/uploadedFiles/

wwwroot/Government/Laws_and_Policies/City

ofGreenBayServiceAgreement. pdf ....................

Service Agreement Between Oneida Tribe of In-

dians of Wisconsin and Town of Oneida (2012),

https://oneida-nsn.gov/uploadedFiles/wwwroot/

Government/Laws_and_Policies/TownofOneida

ServiceAgreement.07.27.2012.pdf.....................

Service Agreement Between Oneida Tribe of In-

dians of Wisconsin and Village of Ashwaubenon

(2013), https://oneida-nsn.gov/uploadedFiles/www

root/Government/Laws_and_Policies/Service%

20Agreement%20with%20Ashwaubenon%20

Wisconsin State Tribal Relations Initiative,

Oneida Nation of Wisconsin Tribal Profile

(2010), http://witribes. wi.gov/docview.asp?docid

SURED cncesantesicsnstenntsnmnnntnccmnnmimninnesnents

SECONDARY AUTHORITIES

Intergovernmental Compacts in Native Ameri-

can Law: Models for Expanded Usage, 112

I ii i

Page

INTEREST OF AMICI CURIAE'

The National Congress of American Indians

(“NCAI”) is the oldest and largest national organi-

zation addressing American Indian interests, repre-

senting more than 250 American Indian tribes and

Alaskan Native villages. Since 1944, NCAI has ad-

vised tribal, state and federal governments on a range

of Indian issues, including the relevance and legal

interpretation of treaties, statutes and executive or-

ders (a) setting aside or establishing reservations as

permanent homelands for Indian tribes and (b) pro-

viding for the allotment or sale of lands within such

reservations. The additional amici listed on the inside

cover of this brief comprise two tribal organizations

and 20 individual tribes, all of whom have direct

interests in the interpretation of treaties, statutes

and executive orders relating to the boundaries of

Indian reservations.

SUMMARY OF ARGUMENT

This Court should reject petitioners’ and their

amici’s invitation to distort or change the “fairly

clean analytical structure” summarized in Solem uv.

Bartlett, 465 U.S. 463 (1984), to determine whether

The Parties filed blanket consents to the filing of amicus

briefs in this case. No counsel for any party authored this brief

in whole or in part, and no person or entity, other than amici,

their members, and their counsel provided any monetary con-

tribution to fund the preparation or submission of this brief.

Congress, in enacting a surplus lands act, intended to

diminish an Indian reservation. The Court’s long-

standing approach recognizes that “[o)Jnly Congress

can divest a reservation of its land and diminish its

boundaries,” and that, once a block of land is set aside

for an Indian reservation, “no matter what happens

to the title of individual plots within the area, the

entire block retains its reservation status until Con-

gress explicitly indicates otherwise.” Jd. at 470 (citing

United States v. Celestine, 215 U.S. 278, 285 (1909)).’

To determine whether Congress intended to diminish

a reservation in a particular surplus lands act, the

Court consistently has employed a three-part inquiry,

looking first to the language of the statute, then to

the surrounding circumstances and lastly (and to a

lesser extent) to subsequent events. Jd. at 470-72 &

n.13.

Petitioners would distort the Solem test by giving

greater weight to the third factor — post-statutory

events — which this Court has long held should be

given the least weight in interpreting Congress’s

intent (and which is the least consistent with normal

principles of statutory construction). Amici Village of

* The Celestine Court traced this authority to the Property

Clause: “By the second clause of § 3, Art. IV, of the Constitution,

to Congress, and to it alone, is given ‘power to dispose of and

make all needful rules and regulations respecting the territory

or other property belonging to the United States.’ From an early

time in the history of the government, it has exercised this

power, and has also been legislating concerning Indians occupy-

ing such territory.” Jd. at 284.

Hobart and Pender Public Schools go much further,

arguing that tribes and the United States should be

precluded from asserting any jurisdiction within

reservations or portions of reservations that (al-

legedly) lacked sufficient indicia of Indian character

over a long period of time — regardless of whether

Congress ever intended to diminish the reservation’s

boundaries. They invoke City of Sherrill v. Oneida

Indian Nation, 544 U.S. 197 (2005), in support of this

approach, a case that involved the displacement of an

Indian tribe from its ancestral lands in the earliest

years of the republic, and that has never been applied

to override Congress’s intent to preserve (or diminish)

a reservation in a late-nineteenth or early-twentieth

century surplus lands act.

Both of these arguments should be rejected. As

respondents note, no question regarding the contin-

ued applicability of the Solem test was presented

below or in the questions presented to this Court.

Moreover, these arguments would distort or repudiate

an unbroken line of this Court’s precedents in reser-

vation boundary cases, upsetting settled expectations

and promoting unnecessary litigation. As the Court

recognized in Solem, 465 U.S. at 470, the rule that

only Congress can alter a reservation’s boundaries

(and that the issuance of fee patents to reservation

lands does not by itself diminish a reservation’s

boundaries) has its roots in this Court’s decisions ex-

tending back as far as Celestine in 1909. The Court’s

modern, three-step analysis to ascertain Congress’s

intent in a particular surplus lands act has been

employed in seven decisions, beginning 53 years ago

in Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351 (1962). This same ap-

proach has been applied in more than 20 lower fed-

eral court cases involving 17 different reservations,

including criminal cases in which jurisdiction de-

pended on whether or not the crime occurred within

an Indian reservation. As a result, a significant

change in this Court’s test could reopen long-settled

disputes over reservation boundaries throughout the

country; call into question criminal convictions; upset

cooperative agreements among federal, state and

tribal governments premised on existing boundary

determinations; and promote renewed litigation —

either by parties to earlier litigation, claiming that a

change in the law entitles them to revisit the issue of

reservation status, or by non-parties to prior litiga-

tion, who would not be bound by earlier rulings under

a different test, even as a matter of stare decisis.

No change in this Court’s test is necessary.

Petitioners and their amici urge this Court to distort

or alter its existing test in order to protect what they

allege to be the settled expectations of non-Indian

communities. However, changing the Court’s settled

approach to surplus lands cases, which is rooted in

over 100 years of precedent, is hardly the way to

protect settled expectations. And, because the current

test already permits consideration of events occurring

after passage of a surplus lands act, including set-

tlement patterns, where they are of assistance in

ascertaining Congress’s intent, the proposed changes

are unnecessary.

A finding that a non-Indian community is within

the boundaries of a reservation will not have the dire

consequences that petitioners and their amici fear.

According to United States census data, 138 cities,

towns and villages overlap or are included within

reservation boundaries in 21 states (excluding non-

reservation tribal areas in Oklahoma), and very few

have expressed the types of the-sky-is-falling con-

cerns articulated by petitioners and their amici (who

comprise only a single village in Wisconsin, a school

district in Pender, and two non-governmental organi-

zations). This is due, in part, to positive interactions

between Indians and non-Indians on many reserva-

tions, the fiscal benefits tribes bring to non-Indian

communities within their reservations, and inter-

governmental agreements through which Indian and

non-Indian governments provide enhanced services

and benefits within reservations. Moreover, as a gen-

eral matter, state and local governments have juris-

diction over non-Indians within Indian reservations,

while tribes have limited authority over non-Indians,

especially on non-Indian fee lands. Except as express-

ly authorized by Congress, tribes have no criminal

jurisdiction over non-Indians under Oliphant uv.

Suquamish Tribe, 435 U.S. 191 (1978), and generally

lack civil jurisdiction over non-Indians on fee lands as

well, subject to the two exceptions set forth in Mon-

tana v. United States, 450 U.S. 544 (1981). And, the

Court has rejected tribal claims of tax immunity, such

as those asserted in City of Sherrill, on reservation

lands that became freely alienable under late-

nineteenth and early-twentieth century allotment

and surplus lands acts, such as the 1882 Act at issue

here. See, e.g., Cass Cty. v. Leech Lake Band of Chip-

pewa Indians, 524 U.S. 103 (1998).

In this case, the Omaha Tribe’s liquor ordinance,

which, according to petitioners, is the only assertion

by the Tribe of jurisdiction over non-Indians in the

disputed area ever, was premised on an express del-

egation of authority from Congress as interpreted by

the Eighth Circuit. See 18 U.S.C. § 1161; City of

Timber Lake v. Cheyenne River Sioux, 10 F.3d 554

(8th Cir. 1993) (Congress’s delegation of liquor regu-

latory authority to tribes in § 1161 extends to non-

Indian communities in Indian country), cert. denied,

512 U.S. 1236 (1994). This Court has long recognized

the unique history surrounding the regulation of

liquor in Indian country and Congress’s role in allo-

cating federal, state and tribal regulatory authority

in this area. See Rice v. Rehner, 463 U.S. 713 (1983);

United States v. Mazurie, 419 U.S. 544 (1975); see

also 18 U.S.C. §§ 1154, 1156, and 1161. Although the

question whether Congress’s delegation of regulatory

authority to tribes in § 1161 extends to non-Indian

communities has not been resolved definitively by

this Court,’ petitioners chose not to argue in this case

* See Mazurie, 419 U.S. at 553 (dicta suggesting that a liq-

uor establishment “located in a non-Indian community” would

be “excepted from tribal regulation”); see also Pittsburg &

(Continued on following page)

that the Omaha Tribe’s liquor ordinance exceeded the

scope of such authority.‘ If tribal authority to regulate

liquor sales in non-Indian communities in Indian

country is problematic, the solution lies either with

Congress or with a proper challenge to the scope of

§ 1161, not with the revision of this Court’s well-

established reservation-boundary jurisprudence.

Finally, the changes requested by petitioners and

their amici to this Court’s longstanding test for deter-

mining the effect of a surplus lands act are improper

because they would displace Congress’s paramount

constitutional authority over Indian affairs. While al-

lowing for consideration of post-statutory events, this

Court’s test is focused on ascertaining Congress’s in-

tent in enacting a surplus lands act. Replacing the

current test with one based solely or primarily on an

Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1544 n.13

(10th Cir. 1995) (same); but see City of Timber Lake, 10 F.3d

at 557-58 (“[bly specifically referring to the broad definition of

Indian country in § 1151 , the Court in Rice made clear

that the geographic scope of state and tribal authority extends to

a reservation’s four corners”) (citing Rice v. Rehner, 463 U.S. at

715 & n.1).

* Petitioners’ tactical choice prevents this Court from con-

sidering the scope of Congress’s statutory delegation of authority

to tribes to regulate liquor sales in Indian country in this case,

notwithstanding that the tribal liquor ordinance that triggered

and remains at the heart of this litigation was expressly adopted

by the tribe and approved by the Secretary of the Interior under

that statute. The Court’s inability to consider the scope of § 1161

is another reason why the Court might wish to consider whether

the writ was improvidently granted. See Brief for Respondents

Omaha Tribal Council at 48 n.6.

assessment of the Indian or non-Indian character of

an area after the passage of a surplus lands act would

effectively displace Congress’s authority to define In-

dian country and determine the proper allocation of

governmental authority within it.

In this case, there is no question that the dis-

puted lands were within the Omaha Indian Reser-

vation before the 1882 Act became law. Subsequent

to the 1882 Act, Congress: (a) specifically resolved

conflicting case law regarding the effect of allotment

and surplus lands acts by defining Indian country to

include all lands within a reservation, notwithstand-

ing the issuance of any patent; (b) recognized that

under this definition reservations can include entire

non-Indian communities; and (c) affirmatively dele-

gated authority to states and tribes to regulate the

sale of liquor in Indian country.’ In this context, to

disregard or relegate to a subsidiary consideration

whether Congress itself intended to preserve or di-

minish the Omaha Reservation in the 1882 Act would

improperly displace Congress’s constitutional author-

ity over Indian affairs, authority this Court repeatedly

has described as “plenary and exclusive.” See, e.g.,

United States v. Lara, 541 U.S. 193, 200 (2004). And,

more specifically, to rely on the presence of a non-

Indian community within the original reservation

* 18 U.S.C. § 1151.

* Cf. 18 U.S.C. § 1151 with 18 U.S.C. §§ 1154(c), 1156.

" 18 U.S.C. § 1161.

boundaries as a basis for a diminishment finding

would be inconsistent with the very result Congress

contemplated when it defined Indian country to in-

clude all lands within a reservation, notwithstanding

the issuance of any patent.

ARGUMENT

I. Changing the Court’s Longstanding Test

for Determining Whether a Surplus Lands

Act Diminished a Reservation Would Upset

Settled Expectations and Promote Unnec-

essary Litigation.

The test for determining whether an Indian

reservation has been diminished by a statute opening

lands for non-Indian settlement has been the subject

of at least seven Supreme Court decisions since 1962:

Seymour v. Superintendent, 368 U.S. at 351; Matiz v.

Arnett, 412 U.S. 481 (1973); DeCoteau v. Dist. Cty. Ct.

for the Tenth Judicial Cir., 420 U.S. 425 (1975);

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

Solem v. Bartlett, 465 U.S. at 463; Hagen v. Utah, 510

U.S. 399 (1994), reh’g denied, 511 U.S. 1047 (1994);

and South Dakota v. Yankton Sioux Tribe, 522 U.S.

329 (1998). In these cases, the Court determined that

“‘some statutes that opened Indian lands for settle-

ment diminished reservations [while] others did

not.’” Hagen, 510 U.S. at 410 (quoting Solem, 465

U.S. at 469 (citations omitted)). Non-Indian land own-

ership does not by itself end reservation status: “Once

a block of land is set aside for an Indian reservation

and no matter what happens to the title of individual

plots within the area, the entire block retains its

reservation status until Congress explicitly indicates

otherwise.” Solem, 465 U.S. at 470.

To determine the effect of a particular surplus

land act, the Court has developed a “‘fairly clean

analytical structure.” Hagen, 510 U.S. at 410-11,

(quoting Solem, 465 U.S. at 470). Under the Constitu-

tion, “Congress possesses plenary power over Indian

affairs”; “[alccordingly, only Congress can alter the

terms of an Indian treaty by diminishing a reserva-

tion.” Yankton, 522 U.S. at 343 (citing Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978), and Cel-

estine, 215 U.S. at 285).° Determining whether a

particular act opening Indian lands for settlement

diminished a reservation depends upon Congress’s

intent. Id.

In the above line of cases, the Court developed a

three-pronged analysis to determine Congress’s in-

tent. The most probative evidence is the statutory

* See also Lara, 541 U.S. at 200 (describing Congress’s con-

stitutional authority over Indian affairs as “plenary and ex-

clusive”); Alaska v. Native Village of Venetie Tribal Gov't, 522

U.S. 520, 531 n.6 (1998) (recognizing Congress’s “plenary power

over Indian affairs” in the context of defining Indian country);

Mazurie, 419 U.S. 554 n.11 & 555 (referring to Congress’s

“exclusive constitutional authority to deal with Indian tribes”

and noting that, in Seymour, Congress’s authority to define In-

dian country broadly so as to include reservation lands patented

in fee to non-Indians “went both unchallenged by the parties

and unquestioned by this Court”).

language itself, which is to be interpreted in accor-

dance with the canons of construction applicable to

laws affecting Indians. The language of the statute

must clearly evince the intent of Congress to change

the boundaries of a reservation. Solem, 465 U.S. at

470; DeCoteau, 420 U.S. at 447. The cases establish

no precise language required for diminishment, but

operative terms of absolute cession combined with

payment of a sum certain are typically viewed as

establishing a presumption of an intent to diminish,

as is language which specifically restores opened land

to the public domain. Yankton, 522 U.S. at 792;

Solem, 465 U.S. at 470-71; Hagen, 510 U.S. at 414;

Seymour, 368 U.S. at 354-55.

The second prong of the Court’s analysis involves

examination of the events surrounding passage of the

act for evidence of a “widely-held contemporaneous

understanding” that Congress intended reservation

boundaries to be altered. Solem, 465 U.S. at 471. This

requires review of the legislative history of the act,

reports on negotiations of the land sale, executive and

presidential declarations, reports of executive agen-

cies overseeing Indian matters, and the like. Id.;

Rosebud, 430 U.S. at 602; Seymour, 368 U.S. at 354-

57 In the absence of a clear expression in statutory

language relating to the intent of Congress, only un-

equivocal evidence contained in the surrounding

circumstances will allow a finding of diminishment.

Yankton, 522 U.S. at 351.

The third and least compelling prong of the

Court’s analysis involves examination of subsequent

jurisdictional and demographic history of the region

opened for settlement. Solem, 465 U.S. at 471-72.

This analysis allows for consideration of “practical ad-

vantages” from finding that a reservation remains

intact or has been diminished, and can provide an

“additional clue” as to what was foreseen by Congress

in enacting the legislation at issue. Jd. at 471-72 &

n.12. However, subsequent history and demographics

provides an “unorthodox and potentially unreliable

method of statutory interpretation.” Jd. at 472 n.13.

To result in diminishment, demographic and subse-

quent history must align with substantial and com-

pelling evidence of Congress’s intent to diminish as

expressed in the statutory language and legislative

history. Id. at 472.

In addition to the seven reservation boundary

disputes that have been resolved by this Court under

the three-part test summarized in Solem, many other

such disputes have been resolved by the lower federal

and state courts under that test. The following 21

federal cases involving 17 reservations are illustra-

tive:

Osage Nation v. Irby, 597 F.3d 1117 (10th

Cir. 2010) (1906 Act disestablished Osage

Reservation);

Wisconsin v. Stockbridge-Munsee Cmty., 554

F.3d 657 (7th Cir. 2009) (1871 Act diminished

and 1906 Act disestablished Stockbridge-

Munsee Reservation);

Shawnee Tribe v. United States, 423 F.3d

1204 (10th Cir. 2005) (1854 Treaty terminated

Shawnee Reservation);

United States v. Webb, 219 F.3d 1127 (9th

Cir. 2000) (1894 Act did not diminish Nez

Perce Reservation);

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010

(8th Cir. 1999) (1894 Act diminished but did

not disestablish Yankton Sioux Reservation);

Melby v. Grand Portage Band of Chippewa,

No. CIV 97-2065, U.S. Dist. LEXIS 24061;

1998 WL 1769706 (D. Minn. 1998) (1889 Act

did not disestablish Grand Portage Indian

Reservation);

Leech Lake Band v. Cass Cty., 108 F.3d 820

(8th Cir. 1997) (Leech Lake Reservation has

never been disestablished or diminished),

aff'd in part and rev'd in part on other

grounds, 524 U.S. 103 (1998);

Confederated Tribes of Chehalis Indian Res-

ervation v. Washington, 96 F.3d 334 (9th Cir.

1996) (1886 Executive Order did not dimin-

ish Chehalis Indian Reservation);

Duncan Energy Co. v. Three Affiliated Tribes

of Fort Berthold Reservation, 27 F.3d 1294

(8th Cir. 1994) (1910 Act did not diminish

Fort Berthold Indian Reservation);

United States v. Standish, 3 F.3d 1207 (8th

Cir. 1993) (1910 Act did not diminish Fort

Berthold Indian Reservation);

Pittsburg & Midway Coal Mining Co. v.

Yazzie, 909 F.2d 1387 (10th Cir. 1990) (1908

Act and Executive Orders diminished Navajo

Reservation);

Colorado River Indian Tribes v. Parker, 705

F. Supp. 473 (D. Ariz. 1989) (1908 Act did not

remove Town of Parker from Colorado River

Indian Reservation);

United States v. Grey Bear, 828 F.2d 1286

(8th Cir.), reh’g denied, 836 F.2d 1086, reh’g

granted, vacated in part, 836 F.2d 1088

(1987) (1904 Act did not disestablish Devil’s

Lake Indian Reservation);

Lower Brule Sioux Tribe v. South Dakota,

711 F.2d 809 (8th Cir. 1983) (Flood Control

Acts did not diminish Lower Brule Sioux

Reservation);

Confederated Salish and Kootenai Tribes of

the Flathead Reservation v. Namen, 665 F.2d

951 (9th Cir. 1982) (1904 Act did not dis-

establish Flathead Reservation);

White Earth Band of Chippewa Indians v.

Alexander, 518 F. Supp. 527 (D. Minn. 1981),

aff'd, 683 F.2d 1129 (8th Cir. 1982) (1889 Act

diminished portion of White Earth Indian

Reservation);

United States v. Minnesota, 466 F. Supp.

1382 (D. Minn. 1979), aff'd sub nom. Red

Lake Band v. Minnesota, 614 F.2d 1161 (8th

Cir. 1980) (1889 Act diminished Red Lake

Indian Reservation);

City of New Town, North Dakota v. United

States, 454 F.2d 121 (8th Cir. 1972) (1910 Act

did not alter boundaries of Fort Berthold In-

dian Reservation);

Leech Lake Band of Chippewa Indians v.

Herbst, 334 F.Supp. 1001 (D. Minn. 1971)

(1889 Act did not disestablish Leech Lake

Indian Reservation);

Beardslee v. United States, 387 F.2d 280 (8th

Cir. 1967) (Blackmun, J.) (Todd County por-

tion of Rosebud Sioux Reservation not dis-

established; land platted as addition to town

of Mission in Todd County and owned by a

non-Indian was within the Reservation); and

Ellis v. Page, 351 F.2d 250 (10th Cir. 1965)

(Cheyenne and Arapaho Reservation dis-

established).

Combining these cases with this Court’s deci-

sions, the Court’s test for evaluating the effect of sur-

plus lands acts has been applied by the federal courts

to determine the status of at least 23 reservations.”

The Court should not significantly revise or abandon

that test in the interest of protecting what petitioners

and their amici claim to be the settled expectations of

* For examples of additional state court cases see, e.g., State

v. Romero, 142 P.3d 887, 140 N.M. 299 (2006) (1924 Act did not

alter Indian country status of Taos or Pojoaque Pueblos); State v.

Davids, 194 Wis.2d 386, 534 N.W.2d 70 (1995) (1871 Act dim-

inished Stockbridge-Munsee Reservation); State v. Clark, 282

N.W.2d 902 (Minn. 1979) (1889 Act did not disestablish White

Earth Reservation).

non-Indian communities. States, tribes, and local

communities (both Indian and non-Indian) have a

substantial interest in avoiding the disruptive effects

of revising the Court’s well-established approach. A

revised test could reopen reservation boundary dis-

putes that have long been settled, call into question

criminal convictions premised on the existence or

absence of Indian country, undermine cooperative

agreements between tribes and local governments,”

and promote renewed litigation. Under these circum-

stances, the interest in protecting settled expecta-

tions counsels in favor of preserving the Court’s

longstanding and widely applied approach to de-

termining the effect of late-nineteenth and early-

twentieth century surplus lands acts on reservation

boundaries.

The potential for re-litigation of settled reserva-

tion boundaries is illustrated by the Brief for Amici

Curiae Village of Hobart, Wisconsin and Pender Pub-

lic Schools (hereinafter, Hobart and Pender Schools

Br.). The brief asserts (at 2) that the Village of Hobart

“has consistently argued the Oneida reservation has

been disestablished,” and (at 3-4) that the federal

courts have definitively determined that the Oneida

J., concurring) (noting the “host of cooperative agreements be-

tween tribes and state authorities to share control over tribal

lands, to manage public services, and to provide law enforce-

ment”); Note, Intergovernmental Compacts in Native American

Law: Models for Expanded Usage, 112 Harv. L. Rev. 922, 927

(1999).

Reservation has been diminished, citing cases from

1909 and 1933. However, it does not disclose that in

Oneida Tribe of Indians of Wisconsin v. Village of

Hobart, Wis., 542 F. Supp. 2d 908 (E.D. Wis. 2008),

the Village conceded the Oneida Reservation had

not been disestablished. The court stated that “(t]he

[Oneida] Tribe contends, and the Village concedes,

that the Tribe’s fee lands constitute ‘Indian Country’

within the meaning of this section [18 USC §1151],” a

concession the court found “quite reasonable” in light

of this Court’s decision in Seymour v. Superintendent,

368 U.S. at 351. 542 F. Supp. 2d at 923 (emphasis

added). The Hobart and Pender Schools brief also

fails to mention Oneida Tribe of Indians of Wisconsin

v. Village of Hobart, Wis., 732 F.3d 837 (7th Cir. 2013),

where the court noted that “[t]he village [of Hobart]

itself is an enclave in the [Oneida] tribe’s reserva-

tion,” that certain lands held in trust for the Oneida

tribe were “within the boundaries of an Indian reser-

vation,” and that “[t]he non-Indian parcels in Hobart

are technically part of the surrounding Oneida reser-

vation as well.” Jd. at 838. The Village’s apparent

interest in re-litigating the existence of the Oneida

reservation does not provide a compelling reason for

the Court to revise its longstanding approach to the

interpretation of surplus lands acts.

Il. Changing the Court’s Longstanding Test for

Determining Whether a Surplus Lands Act

Diminished a Reservation Is Unnecessary.

In 1948, Congress defined Indian country to in-

clude, inter alia, “all land within the limits of any In-

dian reservation under the jurisdiction of the United

States Government, notwithstanding the issuance of

any patent, and, including rights-of-way running

through the reservation.” 18 U.S.C. § 1151. In adopt-

ing this definition, Congress was aware that it placed

non-Indian communities within Indian country. Only

one year later, it adopted a narrower definition of

Indian country for purposes of statutes prohibiting

the introduction or possession of liquor in the Indian

country. For purposes of those statutes, Indian coun-

try “does not include fee-patented lands in non-

Indian communities or rights-of-way through Indian

reservations.” 18 U.S.C. §§ 1154(c), 1156 (emphasis

added). Unless the definition of Indian courtry in

§ 1151 included non-Indian communities, there would

have been no need to exclude “fee-patented lands in

non-Indian communities” from §§ 1154, 1156.

Notwithstanding Congress’s understanding that

Indian country can encompass non-Indian communi-

ties, petitioners and their amici assert that adverse

consequences from including non-Indian communities

within Indian country warrant a revision in this

Court’s longstanding approach to determining whether

a surplus lands act diminished a reservation. How-

ever, changing this Court’s approach is unnecessary

for several reasons.

A. The Solem Test Already Permits Con-

sideration of Post-Enactment Events.

First, the Solem test already permits considera-

tion of events occurring after passage of a surplus

lands act, and this Court has not hesitated to con-

sider them in an effort to understand Congress’s

intent in passing the act. As the Solem Court ex-

plained:

To a lesser extent, we have also looked to

events that occurred after the passage of a

surplus land act to decipher Congress’ in-

tentions. Congress’ own treatment of the

affected areas, particularly in the years im-

mediately following the opening, has some

evidentiary value, as does the manner in

which the Bureau of Indian Affairs and local

judicial authorities dealt with unallotted

open lands.

On a more pragmatic level, we have recog-

nized that who actually moved onto opened

reservation lands is also relevant to deciding

whether a surplus land act diminished a res-

ervation. Where non-Indian settlers flooded

into the opened portion of a reservation and

the area has long since lost its Indian char-

acter, we have acknowledged that de facto,

if not de jure, diminishment may have oc-

curred. .. . In addition to the obvious practi-

cal advantages of acquiescing to de facto

diminishment, we look to the subsequent

demographic history of opened lands as one

additional clue as to what Congress expected

would happen once land on a particular res-

ervation was opened to non-Indian settlers.

Solem, 465 U.S. at 471-72 (citations and footnotes

omitted).

The Court repeatedly has _ referenced post-

statutory occurrences, often in considerable detail, in

assessing whether a particular surplus lands act

diminished a reservation. Focusing on events closer

in time to the statute’s enactment, the Court typically

has examined patterns of settlement, assertions of ju-

risdiction, and actions and pronouncements of rele-

vant agencies and subsequent Congresses. See, e.g.,

Seymour, 368 U.S. at 356-57; DeCoteau, 420 U.S. at

442-44: Rosebud, 430 U.S. at 603-15; Solem, 465 U.S.

at 478-81; Hagen, 510 U.S. at 420-21; Yankton, 522

U.S. at 354-57. No doctrinal change is necessary to

permit this Court and the lower federal and state

courts from doing what they already do in diminish-

ment cases.

B. Petitioners and Their Amici’s Concerns

Regarding the Inclusion of Non-Indian

Communities within Indian Reserva-

tions Are Overstated and Misleading.

Second, the fears expressed by petitioners and

their amici regarding the inclusion of non-Indian

communities within Indian reservations are over-

stated and misleading. A NCAI statistical analysis of

United States census data identified 138 non-Indian

cities, towns and villages within Indian reservations

in 22 states (excluding tribal statistical areas in

Oklahoma). See National Congress of American In-

dians, Policy Research Center, Population and Land

Area of Cities/Towns within Reservations or Oklahoma

Tribal Statistical Areas (2015), http://www.ncai.org/

resources/ncai_publications/analysis-of-cities-and-towns-

inside-reservations. Very few non-Indian communities

have expressed the types of concerns raised by peti-

tioners and their amici in this case, and in at least

one case such concerns were expressly found to be

unsubstantiated. See Cty. of Mille Lacs v. Benjamin,

262 F. Supp. 2d 990, 996 (D. Minn. 2003) (county’s

challenge to reservation boundary dismissed because

county could not show any injury from tribe’s asser-

tion that its reservation had not been diminished),

aff’d, 361 F.3d 460 (8th Cir. 2004), cert. denied, 543

U.S. 956 (2004).

For their part, petitioners assert that, if this

Court upholds the lower courts’ decisions that the

1882 Act did not diminish the Omaha Reservation’s

boundaries, “the practical consequences will be pro-

found for the residents of the disputed area after over

one hundred years of justifiable reliance upon Ne-

braska and local governmental institutions and ser-

vices.” Brief for Petitioners at 20; see also id. at 52

(quoting Hagen, 510 U.S. at 420-21, for the proposi-

tion that “‘when an area is predominantly populated

by non-Indians with only a few surviving pockets of

Indian allotments, finding that the land remains

Indian country seriously burdens the administration

of state and local governments’”) (emphasis added by

petitioners). However, apart from the application of

the tribe’s liquor ordinance — which, as noted above,

was adopted pursuant to a delegation of authority by

Congress as interpreted by the Eighth Circuit — pe-

titioners do not identify any specific consequences for

the residents of the disputed area in this case —

profound or otherwise — and do not identify any state

or local governmental institutions or services that

will be disrupted or burdened in any way from a

decision holding that the Omaha Reservation was not

diminished. For several reasons, it is likely that there

will be few such consequences or burdens.

First, although state civil jurisdiction over tribal

members in Indian country is limited,” states have

jurisdiction over non-Indians unless such jurisdiction

is preempted by federal law or would unlawfully

infringe “on the right of reservation Indians to make

their own laws and be ruled by them.” White Moun-

tain Apache Tribe v. Bracker, 448 U.S. 136, 142-43

(1980) (citation omitted). Under either of these tests,

interactions between non-Indians are almost always

within state and local jurisdiction, as are many

interactions between non-Indians and tribal mem-

bers. See, e.g., Muscogee (Creek) Nation v. Pruitt, 669

F.3d 1159, 1170 (10th Cir. 2012) (applying state laws

to tobacco retailers on Indian reservation). Peti-

tioners identify no state or local laws applicable to

‘' Some states, including Nebraska, have jurisdiction to ad-

judicate civil disputes involving Indians in Indian country pur-

suant to Public Law 280, 28 U.S.C. § 1360.

non-Indian residents of the disputed area, or any

state or local services provided to such residents,

which would be affected in any way by a decision that

the Omaha reservation was not diminished.

Second, with respect to criminal jurisdiction,

states have plenary jurisdiction over crimes between

non-Indians in Indian country. See New York ex rel.

Ray v. Martin, 326 U.S. 496, 500 (1946); United

States v. McBratney, 104 U.S. 621, 624 (1882); cf.

Oliphant, 435 U.S. at 195 (tribes lack criminal ju-

risdiction over non-Indians). In Public Law 280, 18

U.S.C. § 1162, Congress delegated federal criminal

jurisdiction over crimes by or against Indians in

Indian country to several states, including Nebraska.

In 1969, the Nebraska legislature expressly “retro-

ceded” to the United States “all jurisdiction over

offenses committed by or against Indians in the areas

of Indian country located in Thurston County, Ne-

braska,” but retained jurisdiction over offenses in-

volving the operation of motor vehicles on public

roads or highways. Res. 37, 80th Leg., lst Sess. (Neb.

1969). Thus, Nebraska took advantage of the reserva-

tion status of the area to relieve itself of the burden of

prosecutions for major crimes; it did not view federal

criminal jurisdiction in Indian country as disruptive

or burdensome but as beneficial. Notably, in accepting

the State’s retrocession, the Department of the In-

terior gave a detailed description of the “Indian

country located within the boundaries of the Omaha

Indian Reservation in Thurston County,” which ref-

erenced “the west boundary line of the Omaha Indian

Reservation as originally surveyed.” Dept. of Interior,

Notice of Acceptance of Retrocession Jurisdiction, 35

Fed. Reg. 16,598 (Oct. 24, 1970). Petitioners have

launched no challenge to that definition for the past

45 years, undermining any claim that it imposes a

serious burden on the administration of state or local

government and creating a justifiable expectation by

non-Indians and Indians that the area is Indian

country.

Third, while the state has and will retain juris-

diction over non-Indians in the disputed area, tribal

law will rarely govern non-Indians on non-Indian fee

lanc. “(T]ribes do not, as a general matter, possess

authority over non-Indians who come within their

borders.... This general rule ... is particularly

strong when the nonmember’s activity occurs on land

owned in fee siraple by non-Indians.... ” Plains

Commerce Bank v. Long Family Land & Cattle Co.,

554 U.S. 316, 328 (2008); see also Atkinson Trading

Co. v. Shirley, 532 U.S. 645, 659 (2001) (tribe cannot

impose hotel occupancy tax on guests at non-Indian

hotel on non-Indian fee land; impact of non-member

activity must be “demonstrably serious” and “imperil”

the tribe for jurisdiction to exist).

For their part, amici Village of Hobart and

Pender Schools claim that there are “significant and

justified societal expectations” that will “result in se-

vere disruptions to any governmental, business, and

resident .. located within [the] ... reservatiqn.”

Hobart and Pender Schools Br. at 12, 18. They first

focus on the potential for Indian-owned lands within

the disputed area to be freed from local zoning or

other land use controls. Jd. at 19-21 (citing City of

Sherrill, 544 U.S. at 220). However, to support that

concern, they cite a series of provisions in Wisconsin

statutes that prohibit the application of such reg-

ulations to Indian-owned lands within Indian res-

ervations. Jd. at 21-24. The fact that the State of

Wisconsin has chosen to limit the application of local

land use laws within Indian reservations suggests

that, at least in the judgment of the Wisconsin legis-

lature, such limitations do not seriously burden the

administration of state or local government.

Moreover, neither petitioners nor their amici

point to any land use concerns involving the very few

Indian lands in the disputed area in this case. Such

concerns are unlikely given deeply rooted tribal in-

terests in protecting reservation lands, which are

reflected in cooperative agreements tribes have en-

tered into with local governments in order to ensure

effective land use regulations within their reserva-

tions. See supra note 10. And, should such concerns

arise, state and local governments would not be

powerless to address them. Cf. Gobin v. Snohomish

County, 304 F.3d 909, 917 (9th Cir. 2002) (county

could not regulate Indian land use within a reserva-

tion absent a showing of exceptional circumstances

justifying displacement of tribal regulation), with

Oneida Tribe of Indians v. Village of Hobart, 542

F. Supp. at 923-26 (Village has authority to condemn

and to impose special assessments on Indian fee land

within Oneida Reservation).

The Village of Hobart and Pender Schools also

focus on Congress’s allocation of jurisdiction to pro-

tect the environment under the Clean Water Act and

the Clean Air Act, but do not show that any issues

regarding environmental jurisdiction have arisen in

the disputed area in this case.” Hobart and Pender

Schools Br. at 25-27. These hypothetical concerns are

best addressed to Congress, which has established

and can adjust the special statutory scheme allocat-

ing environmental authority in Indian country, taking

into consideration legitimate federal, tribal, and state

interests.

Finally, the Village of Hobart and Pender Schools

cite several cases in which the courts have rejected

tribal assertions of jurisdiction over local schools.

Hobart and Pender Schools Br. at 28-29. They cite no

similar assertions of jurisdiction in this case, and the

cases they do cite indicate that assertions of jurisdic-

tion over school districts such as Pender, which

operates on fee lands, would be unsuccessful.

Notably, in asserting that the potential harms to

a non-Indian community from being located within an

Indian reservation warrant a revision in this Court’s

settled approach to determining the effect of surplus

“ The claim that the Environmental Protection Agency

“issued draft permitting authority to the Oneida [Tribe],” Hobart

and Pender Schools Br. at 25-26, is mistaken. The cited permit

was a draft NPDES permit issued by EPA to the Oneida Tribe

for the Tribe’s storm water discharges, and did not confer any

“permitting authority” on the Tribe. See id. at 26 n.4.

lands acts on reservation boundaries, the Village of

Hobart and Pender Schools fail to acknowledge the

positive impacts of being included within an Indian

reservation. For example, as of 2010 the Oneida

Tribe, within whose reservation the Village of Hobart

is located, was the fifth largest employer in Brown

County, Wisconsin, employing 3085 people of whom

42% (1296) were non-native. See Wisconsin State

Tribal Relations Initiative, Oneida Nation of Wiscon-

sin Tribal Profile, 1 (2010), http://witribes.wi.gov/doc

view.asp?docid=5637 &locid=57. The positive economic

effects on surrounding communities of a wide variety

of enterprises operated by 36 tribes around the nation

are summarized in Mark Fogarty, “The Growing

Economic Might of Indian Country,” Indian Country

Today, (March 15, 2013), http:/Andiancountrytoday

medianetwork.com/2013/03/15/growing-economic-might-

indian-country-148196. These benefits include direct

employment, opportunities for non-Indian contractors

and service providers, development of community

infrastructure, increased federal, state and local tax

revenues, and other spillover effects. Reservation

status assists in securing these benefits because

(among other things) the federal government provides

tax benefits for reservation businesses. See, e.g., 26

U.S.C. § 168()).

Petitioners and their amici also fail to acknowl-

edge that many tribes, states and local governments

have addressed the types of concerns that they raise

here through intergovernmental agreements. Both

the Omaha Tribe, whose reservation is at issue in this

case, and the Oneida Tribe, about whose reservation

the Village of Hobart complains, have entered into

a number of such agreements.” These agreements

* The Omaha Tribe entered into these agreements, among

others:

1. Interlocal Agreement for the Formulation of the

Northeast Nebraska Enterprise Zone Association

under the Nebraska Enterprise Zone Act (1994),

http:’//omaha-nsn.gov/wp-content/uploads/2013/06/

Appendix-I-Northeast-Nebraska-Enterprise-Zone-

Association. pdf;

2. Child Welfare, Adult and Child Protection and

Safety Services, and Juvenile Services Contract

(2011), http~//dhhs.ne.gov/children_family_services/

Contracts/4725304OmahaAPSCPS. pdf;

3. Indian Child Welfare, Adult and Child Protec-

tions and Safety Services, and Juvenile Service

Agreement (2010), http//dhhs.ne.gov/children_family_

services/Contracts/36969040maha2010.pdf; and

4. Agreement for the Collection and Dissemination

of Motor Fuel Taxes (2005), http//revenue.nebraska.

gov/fuels/legal/Agreement%20with®200maha%20

Tribe%20Sept%202005. pdf.

The Oneida Tribe has entered into these agreements, among

others:

1. Service Agreement Between Oneida Tribe of Indi-

ans of Wisconsin and City of Green Bay (2009),

https://oneida-nsn.gov/uploadedFiles/wwwroot/

Government/Laws_and_Policies/CityofGreenBay

ServiceAgreement.pdf (reciting that the “Tribe

and the City have been good neighbors and de-

sire the spirit of cooperation between the two

governments to continue”);

2. Cooperation Agreement (with the City of Green

Bay] (1984), https-//oneida-nsn.gov/uploadedFiles/

wwwroot/Government/Laws_and_Policies/CITYof

(Continued on following page)

GreenBayOHACooperationAgreement.43184. pdf

(providing for tribal payments in lieu of City taxes);

Exchange of Services Agreement Between Oneida

Tribe of Indians of Wisconsin and Brown County

(2012), https//oneida-nsn.gov/uploadedFiles/www

root/Government/Laws_and_Policies/BrownCounty

ExchangeofServicesAgreement.pdf (providing for

tribal payments in lieu of county taxes and recit-

ing that “the Tribe and the County enjoy a rela-

tionship of mutual trust and respect”);

Service Agreement Between Oneida Tribe of Indi-

ans of Wisconsin and Brown County (2008),

https://oneida-nsn.gov/uploadedFiles/wwwroot/

Government/Laws_and_Policies/BrownCounty

ServiceAgreementandAmendments.pdf (relating

to construction of telecommunications structures

and reciting that “the Tribe and the County en-

joy a relationship of mutual trust and respect”);

Service Agreement Between Oneida Tribe of Indi-

ans of Wisconsin and Town of Oneida (2012),

https://oneida-nsn.gov/uploadedFiles/wwwroot/

Government/Laws_and_Policies/TownofOneida

ServiceAgreement.07.27.2012.pdf (reciting that

the “Tribe and the City have been good neighbors

and desire the spirit of cooperation between the

two governments to continue”);

Intergovernmental Service Agreement Between

Oneida Tribe of Indians of Wisconsin and Out-

agamie County Drainage Board (2009), https://

oneida-nsn.gov/uploadedF iles/wwwroot/Government/

Laws_and_Policies/OutagamieCountyDrainageBoard

IntergovernmentalService.pdf (reciting that “the

Tribe and the Board have been good neighbors

and desire the spirit of cooperation between the

two governments to continue”); and

Service Agreement Between Oneida Tribe of In-

dians of Wisconsin and Village of Ashwaubenon

(Continued on following page)

provide a mechanism for sovereigns to resolve the

kind of disruption petitioners and their amici fear

and, instead, to provide for enhanced governmental

services and facilities within a reservation.“ As the

Seventh Circuit recently observed, “the Village [of

Hobart] doesn’t . . . deny the feasibility of cooperative

arrangements between it and the tribe, which has

signed cooperative service agreements with other

government bodies in the area.” Oneida Tribe of In-

dians of Wisconsin v. Village of Hobart, 732 F.3d at

841. This Court itself has indicated that cooperative

agreements are the preferred method of balancing the

interests of states and tribes within Indian country.

See Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505, 514 (1991). Justice

O’Conner listed examples of such agreements in

Hicks, 533 U.S. at 393 (O’Connor, J., concurring).

Petitioner State of Nebraska expressly autho-

rizes state agencies to enter into intergovernmental

agreements with tribes in Neb. Rev. Stat. § 13-1501 et

seq. (the State-Tribal Cooperative Agreements Act),

(2013), https//oneida-nsn.gov/uploadedFiles/www

root/Government/Laws_and_Policies/Service%20

Agreement%20with%20Ashwaubenon%2020 14. pdf

(reciting that “the Tribe and the Village have

been good neighbors and desire the spirit of co-

operation between the two governments to con-

tinue”).

“ They also provide an alternative to the “threat of pro-

tracted and expensive litigation.” Hobart and Pender Schools Br.

at 29 n.5.

and has availed itself of this option. See, e.g., Cross-

Deputization Agreement By and Between the Bureau

of Indian Affairs, the Nebraska State Patrol, and the

Winnebago Tribe of Nebraska (2001), https:?//www.walking

oncommonground.orp/state.cfm?topic=12&state=NE. More

than 20 states have recognized the advantages of

these agreements, adopting legislation authorizing

state and local agencies to enter into intergovern-

mental agreements with tribes. E.g., Ariz. Rev. Stat.

§ 11-952; Minn. Stat. § 471.59(1); Mont. Code Ann.

§ 18-11-101 et seg.; Okla. Stat. tit. 74 § 1221; SDCL

10-12A; Wyo. Stat. § 16-1-101.

In sum, the concerns expressed by petitioners

and their amici are overstated and misleading, and

provide no basis for altering this Court’s well-

established and widely applied approach to determin-

ing the effects of late-nineteenth or early-twentieth

century surplus lands acts on reservation boundaries.

Ill. Petitioners’ and Their Amici’s Attempts to

Distort or Replace This Court’s Long Estab-

lished Approach to Determining the Effect

of a Surplus Lands Act Would Improperly

Displace Congress’s Constitutional Role in

Indian Affairs.

There is a third problem with petitioners’ and

their amici’s requests to distort or replace this Court’s

longstanding approach to determining the effect of

surplus lands acts. Petitioners want to place greater

weight on the third Solem factor, which has the least

evidentiary value in ascertaining Congress’s intent.

Their amici want to disregard Congress’s intent

altogether if the area in question allegedly lacked

sufficient Indian character over a long period of time.

Each request would displace Congress’s plenary con-

stitutional authority to determine reservation bound-

aries and define Indian country. This would be a

radical departure from this Court’s precedents and

cannot be justified in the interests of protecting

settled expectations.

A. Petitioners’ Attempt to Change the Weight

Given to the Solem Factors Is Inconsis-

tent with Sound Principles of Statutory

Construction.

The Court has consistently limited reliance cn

post-statutory events under the Solem test, especially

events occurring long after passage of the statute to

be interpreted, because the controlling factor is con-

gressional intent. For example, in Solem the Court

explained that, while subsequent events might “[t]o a

lesser extent” provide a “clue” as to Congress’s inten-

tions, the use of post-enactment events as a tool of

statutory interpretation is “unorthodox and poten-

tially unreliable,” and should be employed only as “a

necessary expedient” where other evidence of con-

gressional intent is lacking. Solem, 465 U.S. at 471-

72 n.13 (citation omitted).

Indeed, the Court has noted that, especially

over long periods of time, post-enactment events

and pronouncements often embody conflicting and

inconsistent interpretations and approaches. In Yank-

ton, the Court noted that over the years following the

surplus lands act at issue in that case, “both Congress

and the Executive Branch have described the reser-

vation in contradictory terms and treated the region

in an inconsistent manner.” 522 U.S. at 354. “The

mixed record we are presented with ‘reveals no con-

sistent, or even dominant, approach to the territory in

question,’ and it ‘carries but little force’” when com-

pared with the other two prongs of the Solem analy-

sis. Id. at 356 (quoting Rosebud, 430 U.S. at 605

n.27). Solem itself found that the post-enactment

record of subsequent treatment of the contested ter-

ritory was so “rife with contradictions and inconsis-

tencies as to be of no help to either side.” 465 U.S. at

478.

In Hagen, this Court similarly found, after re-

viewing post-statutory events, that “[t]he subsequent

history is less illuminating than the contemporaneous

evidence.” Hagen, 510 U.S. at 420. In reviewing in-

consistent approaches that a subsequent Congress

took with regard to the contested lands, the Court

stated that this reinforced the Court’s longstanding

observation that “the views of a subsequent Congress

form a hazardous basis for inferring the intent of an

earlier one.” Jd. (citing United States v. Philadelphia

Nat. Bank, 374 U.S. 321, 348-49 (1963)); see also

Chapman v. United States, 500 U.S. 453, 464 n.4

(1991) (subsequent legislative history is “an unrelia-

ble guide to legislative intent”).

Finally, as a practical matter, the Court noted in

Yankton that the mere surge of non-Indian settlement

and the resulting lessening of the Indian character of

opened lands following a surplus lands act is insuffi-

cient in itself to be determinative of Congress’s intent

in passing the law: “This final consideration [post-

enactment occurrences] is the least compelling for a

simple reason: Every surplus land Act necessarily

resulted in a surge of non-Indian settlement and

degraded the ‘Indian character’ of the reservation, yet

we have repeatedly stated that not every surplus land

Act diminished the affected reservation.” Yankton,

522 U.S. at 356.

Petitioners’ request to give greater weight to

the third Solem factor disregards these considera-

tions and, by elevating the factor that is least proba-

tive of Congress’s intent, would effectively displace

Congress’s constitutional authority to define Indian

country and determine reservation boundaries. See

supra note 8 and accompanying text; see also King v.

Burwell, 135 S. Ct. 2480, 2496 (2015) (“in every case

[the Court] must respect the role of the Legislature,

and take care not to undo what it has done”).

The Court has never suggested that Solem’s third

factor can be used in this manner. In Solem, where

the Court noted that there might be practical ad-

vantages from a finding that a reservation was (or

was not) diminished, 465 U.S. at 471 & n.12, it went

on to hold that there were “limits to how far we will

go to decipher Congress’s intention in any particular

surplus land act.” Jd. at 472. In particular, “[wJhen

both an Act and its legislative history fail to provide

substantial and compelling evidence of a congres-

sional intention to diminish Indian lands, we are

bound by our traditional solicitude for the Indian

tribes to rule that diminishment did not take place

and that the old reservation boundaries survived the

opening.” Jd. (emphasis added). Similarly, in Hagen,

where the Court quoted Solem’s observation regard-

ing burdens on state and local governments if an area

of Indian country is largely populated by non-Indians,

510 U.S. at 420-21, it did so in the context of an

inquiry into congressional intent: “our conclusion that

the statutory language and history indicate a con-

gressional intent to diminish is not controverted by

the subsequent demographics of the Uintah Valley

area.” Id. at 420 (emphasis added).

Where, as here, the controlling inquiry is one of

congressional intent, the Court should not revise its

longstanding approach to place greater weight on the

evidence that is least probative of congressional in-

tent.

B. The Court Should Not Abandon the

Solem Test in Favor of a Test Based on

City of Sherrill that Ignores Congres-

sional Intent.

Amici Village of Hobart and Pender Public

Schools go much further than petitioners and argue

that, regardless of Congress’s intent to preserve or

diminish a reservation in a surplus lands act, tribes

should simply be barred from asserting any jurisdic-

tion whatsoever in areas that allegedly lacked suffi-

cient Indian character since the passage of the act.

They invoke City of Sherrill, 544 U.S. 197 (2005), a

case that involved efforts by a tribe to assert sover-

eignty in the form of an immunity from taxation on

lands from which it had been displaced more than

200 years ago through violation of the Indian Non-

Intercourse Act of 1790, 25 U.S.C. § 177. However,

City of Sherrill has never been applied to ignore

Congress’s intent to preserve or diminish a reserva-

tion in a late-nineteenth or early-twentieth century

surplus lands act. In the name of “preserving settled

expectations,” amici Village of Hobart and Pender

Public Schools would not only jettison the analytical

approach this Court has applied to reservation dimin-

ishment cases over the past half-century, but would

eliminate, in favor of the judiciary, Congress’s consti-

tutionally mandated role in regulating Indian affairs,

including its authority to define Indian country and

to establish and diminish reservations. See supra

note 8 and accompanying text.

In City of Sherrill, this Court held that the

Oneida Tribe could not unilaterally revive its ancient

sovereignty, including immunity from state taxation

of fee land it purchased on the open market, within

territory it ceased to occupy or govern two centuries

earlier. See City of Sherrill, 544 U.S. at 203. The

Court acknowledged that the Tribe might have suf-

fered a great wrong when its lands were sold in

violation of the Non-Intercourse Act, but held that it

was not entitled to a remedy due to equitable consid-

erations, including massive changes in the lands at

issue since the founding days of the Republic, nearly

two hundred years of acquiescence to non-Indian

jurisdiction on the part of the Tribe, and the extreme

disruption to the justified expectations of others that

would result from such a remedy. Jd. at 213-21.

The Court’s opinion in City of Sherrill contains no

suggestion that the Court no longer adhered to the

three-pronged analysis summarized in Solem and

applied in its seven cases regarding the effect of late-

nineteenth and early-twentieth century surplus lands

acts on reservation boundaries. The Court did not

question Congress’s paramount role in establishing or

diminishing reservations, or the relevance of Con-

gress’s intent in enacting surplus land laws. To the

contrary, the City of Sherrill opinion cited Solem,

Rosebud and Hagen. City of Sherrill, 544 U.S. at 215-

16 & n.9. The Court stated that in “the different, but

related, context of the diminishment of an Indian

reservation,” the longstanding assumption of jurisdic-

tion by a state over an area that is overwhelmingly

non-Indian may create justifiable expectations of

reservation diminishment. Jd. at 215. There was no

suggestion, however, that such expectations would by

themselves trump Congress’s intent. Rather, in the

context of New York’s uncontested 200-year exercise

of jurisdiction in former Oneida territory, such justi-

fiable expectations “merit{[ed] heavy weight.” Jd. at

215-16.

No other court has applied City of Sherrill to

avoid the Solem test in a case involving a late-

nineteenth or early-twentieth century surplus land

act. Although City of Sherrill has been cited in recent

diminishment cases, it has not been employed as an

excuse to ignore Congress’s intent. For example, in

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010),

cited by amici Village of Hobart and Pender Public

Schools, the Tenth Circuit explicitly followed the

Solem test. As part of its discussion of the third

prong of the Solem analysis, the Tenth Circuit noted

that the Osage Nation conceded that Oklahoma had

long asserted jurisdiction in Osage County, now a

predominantly non-Indian area, and that this might

have created “justifiable expectations” that “merit

heavy weight.” Osage Nation, 597 F.3d at 1128.

Ultimately, however, the court did not bar the Osage

Nation’s claims based on laches. Instead, it concluded

that the Osage reservation had been disestablished

by Congress. Id. at 1127-28.

The resort to equitable principles to thwart

Congress’s intent in a surplus lands act is particu-

larly inappropriate given Congress’s affirmative leg-

islation in this area. Congress’s 1948 definition of

Indian country was specifically intended to resolve

issues that had arisen from allotment and surplus

lands acts, “consolidat[ing] mumerous conflicting

and inconsistent provisions of law into a concise

statement of the applicable law.” 18 U.S.C. § 1151

note. One of the conflicts Congress addressed was

whether reservation lands patented in fee to Indians

or non-Indians pursuant to allotment and surplus

lands acts were “within the limits of [an] Indian

reservation” for purposes of the Act of March 3, 1885,

§ 9, 23 Stat. 362, 385 (Major Crimes Act). Two federal

courts held they were, see Kills Plenty v. United

States, 133 F.2d 292 (8th Cir. 1943); United States v.

Frank Black Spotted Horse, 282 F. 349 (D.S.D. 1922),

while some state courts held they were not. See, e.g.,

State v. Johnson, 212 Wis. 301, 249 N.W. 284 (1933).

By defining Indian country to include all lands within

a reservation, “notwithstanding the issuance of any

patent,” 18 U.S.C. § 1151, Congress’s 1948 definition

followed Kills Plenty, which held that an offense

committed within the town-site of Mission, South

Dakota, was within a reservation even though the

Indian title to the town-site had been extinguished.

See 18 U.S.C. § 1151 note (citing Kills Plenty in list of

cases on which the definition was based). Moreover,

as discussed above, in amending the liquor statutes

in 1949, Congress recognized that its definition of

Indian country could include not just fee-patented

non-Indian lands, but entire non-Indian communities

established within Indian reservations as a result of

allotment and surplus lands acts. See 18 U.S.C.

§§ 1154(c), 1156. It would be strange if the very result

contemplated by Congress in defining Indian country

— the inclusion of non-Indian communities within

Indian reservations subjected to allotment or surplus

lands acts — could serve as the basis for the invoca-

tion of equitable principles that led to the opposite

result.

It is also noteworthy that the specific assertions

of tribal authority at issue in City of Sherrill and this

case have each been addressed by Congress in its

Indian country, allotment and surplus lands legisla-

tion. As noted above, in allotment and surplus lands

acts, Congress has made lands patented in fee subject

to state and local taxation, see Cass Cty., 524 U.S. at

103, and in 18 U.S.C. §§ 1154, 1156, and 1161 it has

specifically addressed federal, state and tribal liquor

regulation within Indian country. Accordingly, this

case would be a particularly inappropriate case in

which to discard this Court’s long-established ap-

proach to the interpretation of surplus lands acts,

with its premise that only Congress can diminish an

Indian reservation, and to resort instead to equitable

principles that disregard Congress’s intent to pre-

serve or diminish a reservation.

CONCLUSION

For the above reasons as well as those given by

respondents, the Court should decline the invitation

by petitioners and their amici to distort or replace

this Court’s well-established approach to determining

the effect of allotment and surplus lands acts on the

boundaries of an Indian reservation.

Respectfully submitted,

Marc D. SLONIM

Counsel of Record

RICHARD M. BERLEY

ZIONTZ CHESTNUT

2101 Fourth Avenue, Suite 1230

Seattle, WA 98121

(206) 448-1230

mslonim@ziontzchestnut.com

DONALD R. WHARTON

NATIVE AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

wharton@narf.org

JOHN DOSSETT

NATIONAL CONGRESS OF

AMERICAN INDIANS

1516 P Street NW

Washington, DC 20005

(202) 466-7767

John_Dossett@NCAI.org

Counsel for the National

Congress of American Indians

Counsel for Amici Curiae

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