Amicus Curiae Brief — Utah v. Ute Indian Tribe

oupreme ULOUIT, U.o.

hay FILED

\4/

at JUN 5 1986

No. 85-1821

255 F. cidalallel” JR.

IN THE.

Supreme Court of the Gnited States

OCTOBER TERM, 1985

STATE OF UTAH, DUCHESNE CouNTy, UTAH, UINTAH

County, UTAH, ROOSEVELT CITY AND DUCHESNE CITY,

UTAH,

Petitioners,

V.

UTE INDIAN TRIBE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit

BRIEF FOR THE STATES OF SOUTH DAKOTA, ET AL.

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

MarRK V. MEIERHENRY

Counsel of Record

Attorney General of

South Dakota

Attorney General’s Office

500 East Capitol

Pierre, South Dakota 57501

(605) 773-3215

PAUL BARDACKE

Attorney General of

New Mexico ’

P.O. Drawer 1508

Santa Fe, New Mexico 87504

(505) 827-6000

OME SG NE TT EE TT

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether the language of the Uncompahgre Act

of August 15, 1894, implemented by the Act of June

7, 1897, and the Uintah Act of May 27, 1902, as

amended, providing that the unallotted lands of these

original Indian reservations shall be restored to the

public domain, constituted clear language of disestab-

lishment, as this Court has recognized, or whether

the original reservation boundaries continue to exist

because this Court’s decision in Solem v. Bartlett

changed the effect of such language, as the en banc

majority of the court below held.

2. Whether the original Uncompahgre Reservation

was disestablished in light of the express statutory

language and the facts that the United States has

not treated the disputed area as a reservation since

1897, that in 1965 the Tribe recovered damages from

the United States on the basis that the Uncompahgre

Reservation no longer existed, and that the population

and land use in the disputed area are more than

ninety percent non-Indian.

3. Whether the original Uintah Reservation was

disestablished in light of the express statutory lan-

guage and the facts that the United States did not

administer the disputed area as a reservation for more

than sixty years after the date of opening, that con-

temporaneous Presidential, Congressional and admin-

istrative treatment of the area showed that it was no

longer considered a reservation, that more than half

of the original reservation was made,into a national

forest and that the population and land use in the

remaining area are more than ninety percent non-

Indian.

TABLE OF CONTENTS

Page

INTEREST OF THE STATES oF SouTH Dakota, Et

ln scceninnonnnhivaninninvtancchpusciieneig eet Me ee

SION nennnsiniutcniinitr tues ig a oe 2

ee Dee ee ee _

iii

TABLE OF AUTHORITIES

CASES: . Page

Ash Sheep Company v. United States, 252 U.S. 159

i ce tian sa adhdnlbsanaaninscttanebacsdenssadvenes 9, 10

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

eh inks ckcennnadeunenanbbsiiinacetrensesnnansenens passim

Escondido Mutual Water Company v. La Jolla Band

of Mission Indians, 466 U.S. 765 (1984) _....... 11

Mattz v. Arnett, 412 U.S. 481 (1978) ................ 3, 4, 12

Oregon Department of Fish and Wildlife v. Klamath

leds Tribe, __U.S. —_, 105 S.Ct. 3420

a eal sl cade nhenabisbbniahaddigncieenenenseenseseses 5, 6

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

EN iiiciiihisidbakaneksndnaiedbnnaaesbiekctisnvesesnesccecsceses passim

Seymour v. Superintendent, 368 U.S. 351

Tiina aia batshanuhansddcwbsergawinebecnreaensecsasenss 2, 3, 12

Sioux Tribe of Indians v. United States, 316 US.

kia chk Absasababateninactanevarecvexcone 2

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

United States v. Pelican, 232 U.S. 442 (1914) ...... 3

STATUTES:

24 Stat. 388, Act of February 8, 1887 ................. 12, 13

EXECUTIVE ORDERS:

Exec. Order of August 19, 1874 (I Kappler 856) 7

Exec. Order of January 28, 1876 (I Kappler 889) '

Exec. Order of October 30, 1876 (1 Kappler 814) 7

Exec. Order of May 3, 1877 (I Kappler 821) _....... 7

aa of September 13, 1882 (I Kappler 889- :

Exec. Order of February 5, 1883 (I Kappler

I Aas sak ca daldo hd Shdnbieneaanansentbinnnwaneananene 7

Exec. Order of February 23, 1883 (I Kappler 904-

Ss eieaN ian ca kdbantbhakunrbanaralirsinkeiisicnsnaceeeséonenes 7

iv

Table of Authorities Continued

Exec. Order of May 21, 1883 (I Kappler 890) _.....

Exec. Order of March 29, 1884 (I Kappler 885)

MISCELLANEOUS:

F. Hoxie, Beyond Sa : The Campaign to As-

similate the American ndians, 1880-1902, (Univ.

SERINE IDET axsisisnctinssenniatadidiadeeinanaien

Comment, Reservations: The Surplus Lands Acts and

the Question of Reservation Disestablishment, 12

EAs OE GONE | ntti

‘02 lp niclaeleaealall

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1821

STATE OF UTAH, DUCHESNE CouNTY, UTAH, UINTAH

County, UTAH, ROOSEVELT CITY AND DUCHESNE CITY,

UTAH,

Petitioners,

Ve

UTE INDIAN TRIBE,

Respondent.

On Petition for A Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit

BRIEF FOR THE STATES OF SOUTH DAKOTA, ET AL.

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE STATES OF SOUTH DAKOTA

ET AL.

This case presents an issue of substantial impor-

tance to the State of South Dakota and other states

with present and former Indian reservations. The

United States Court of Appeals for the Tenth Circuit

has concluded that Acts of Congress with operative

language restoring Indian reservations to the public

domain were not intended to disestablish those re-

servations, Pet. App. la-62a. The Court of Appeals

premised its decision on a misreading of Solem v.

Bartlett, 465 U.S 463 (1984), and plaintiffs in New

Mexico and elsewhere are already specifically relying

on this misreading to resurrect boundaries of Indian

reservations long deemed disestablished.

In recent years South Dakota participated in Solem

and two similar cases before this Court, DeCoteawu v.

District County Court, 420 U.S. 425 (1975), and Ro-

sebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). The

decision of the Court of Appeals conflicts in principle

with all three of these cases. The Amici Curiae une-

quivocally support the petition for a writ of certiorari.

DISCUSSION

1. The en banc majority’s rationale, premised on a

misconstruction of the significance of ‘‘public domain”’

language, is of substantial concern to amici. Here-

tofore, the equation of public domain language with

reservation disestablishment has been a universally

accepted principle of federal Indian law. Throughout

the Western States, Congress and the Executive

Branch routinely utilized such terminology in the lan-

guage and legislative history of Acts such as pre-

sented here. In South Dakota, for example, millions

of acres of Indian reservations were “‘restored to the

public domain’’.' Until the en bane majority’s decision,

no court seriously questioned that such operative lan-

guage was not precisely suited to disestablishment.

Seymour v. Superintendent, 368 U.S. 351, 354-55

' Rosebud Sioux Tribe v. Kneip, 480 U.S. 584, 589 (1977). See,

generally, Sioux Tribe of Indians v. United States, 316 U.S. 317

(1942).

(1962); Mattz v. Arnett, 412 U.S. 481, 504 n. 22 (1973).

See, generally, United States v. Pelican, 232 U.S. 442

(1914).

Indeed, in 1975, when this Court framed the issue

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

(1975), it did so in terms of an underlying inquiry for

“public domain’’ indicia:

These two cases, consolidated for decision,

raise the single question whether the Lake

Traverse Indian Reservation in South Da-

kota, created by an 1867 treaty between the

United States and the Sisseton and Wahpe-

ton bands of Sioux Indians, was terminated

and returned to the public domain, by the Act

of March 3, 1891. DeCoteau, supra at 426-

427. (Emphasis added).

Since the legislative history in DeCoteau indicated

that Congress intended to restore the reservation to

‘ the public domain, the issue was decisively resolved.

: See DeCoteau, 420 U.S. at 441, where, after noting

} that the intended effect of the Act was made clear

by the sponsors, this Court set forth in the text of

the opinion two “public domain” excerpts from the

Congressional Record (‘‘surrender of a large portion

of their reservation to the public domain’; “‘all this

land is opened by this bill to settlement as a part of

the public domain’). Jd. at 439-441. In concluding,

the Court reiterated this basic understanding:

That the lands ceded in the other agreements

were returned to the public domain, stripped

of reservation status, can hardly be ques-

tioned, and every party here acknowledges

as much. The sponsors of the legislation

aati

stated repeatedly that the ratified agree-

ments would return the ceded lands to the

‘public domain.’ See supra, at 440-441. Cf.

Mattz v. Arnett, 412 U.S. 481, at 504 n. 22.

DeCoteau, 420 U.S. at 446. (Emphasis added.)

Two years later, in Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977), this aspect of the issue was

treated essentially the same. Rosebud, 430 U.S. at

589, 600, 600 n. 21. Even the Rosebud dissent ex-

pressly acknowledged that ‘‘restored to the public

domain’”’ was ‘clear language of express termina-

tion’”’’. Rosebud, 430 U.S. at 618 (Marshall, J., dis-

senting).

In the instant case, the district court and the panel

below premised their initial decisions on this funda-

mental understanding (Pet. App. 69a 76a, 78a, 79a,

83a, 84a), as the en banc majority acknowledged (Pet.

App. 17a-18a). Subsequently, however, this Court de-

cided Solem v. Bartlett, 465 U.S. 463 (1984). The en

bane majority’s conclusion that Solem “dictated” a

different result with respect to the crux of this case,

the significance of operative public domain terminol-

ogy, is explicitly stated:

The original expression ‘return to the public

domain’ does not reliably establish the clear

and unequivocal evidence of Congress’s in-

tent to change boundaries. Solem, 104 S.Ct.

at 1166 [majority opinion].

Our conclusion is that the phrase ‘restore to

the public domain’ is not the same as a

congressional state of mind to disestablish

[majority opinion]. |

Although the district court and the panel

viewed this as language of cession, I believe

that Solem dictates a different result [con-

curring opinion].

Prior to Solem, ‘public domain’ language

could have been construed as’ more conclusive

evidence of disestablishment; following So-

lem, the term must be viewed as ambiguous

in portent. . . {concurring opinion].

Ultimately, I interpret Solem to hold that

‘public domain’ language standing alone is

insufficient to support a finding of explicit

congressional intent to disestablish [concur-

ring opinion].

Pet. App. at lla-12a, 17a-18a. (Emphasis added). So-

lem clearly did not dictate this principle. See Pet. at

14-17, 19-21. Although the en banc majority addressed

other points, some of which are noted below, it is

evident that the ultimate conclusion centered around

this fundamental misconstruction.

As a result, this Court is now presented with a

conflict of even greater magnitude than the related

issue presented in Oregon Department of Fish and

Wildlife v. Klamath Indian Tribe, __ U.S. —_ , 105

S.Ct. 3420 (1985):

Because the Court of Appeals’ decision ap-

peared to conflict in principle with the de-

cision of the Eighth Circuit in Red Lake Band

of Chippewa Indians v. Minnesota, 614 F.2d

1161 (per curiam), cert. denied, 449 U.S. 905,

101 S.Ct. 279, 66 L.Ed.2d 136 (1980), we

granted certiorari, 469 U.S. , 105 S.Ct.

242, 83 L.Ed.2d 180. We now reverse.

i

By

i

;

;

‘

Oregon, 105 S.Ct. at 3427 (Emphasis added). The im-

portance of the principle resolved in Oregon (i.e. re-

servation rights remaining after cessions of Indian

reservations) highlights the importance of the prin-

ciple at issue here (reservation rights remaining after

restoration of Indian reservations to public domain).

Moreover, with respect to operative public domain

language, the decision of the en banc majority une-

quivocally “conflicts in principle’ with not just one

circuit but all circuits—in fact, it appears to ‘‘conflict

in principle” with all reported decisions that have

addressed, indirectly or directly, the effect of a

Congressional act or Executive order whose operative

language restored an Indian reservation to the public

domain. Pet. at 13-21. This controlling aspect of the

opinion below, which influenced the en banc majority’s

view of other pertinent factors, thus clearly warrants

review.

2. While amici unequivocally support and share the

concern of Petitioners that the second largest Indian

reservation in the United States (4,000,000 acres) has

been resurrected in Utah as a result of this miscon-

struction, the sweeping mischaracterization of Solem

by the en banc majority undermines this area of fed-

eral Indian law and is thus of even broader conse-

quence.

The recent New Mexico cases, discussed by

Petitioners at 12, where the plaintiffs specifically rely

on this misreading of Solem by the en banc majority,

will not be isolated examples. Nor is the list of twenty-

nine public domain areas in other states cited by

Petitioners, extensive as it is, all inclusive. Pet. at

11-12. Kappler identifies nine additional Orders in the

short period of 1876 to 1883.”

Compounding the en banc majority’s mischaracter-

ization of Solem and making even more certain the

predictability of additional litigation in these areas is

the evaluation in a recent Comment in the American

Indian Law Review that was awarded first place in

the Indian Law Writing Competition at Harvard Uni-

versity:? The author there concludes, as did the en

bane majority, that after Solem ‘‘[t]he category of

statutory language terminating a reservation has been

reduced by eliminating ‘public domain’ ... the ar-

gument, approved in Solem v. Bartlett, that the pubic

domain language in surplus land acts carried little

meaning. ...”, id. at 69-70, 73 (Emphasis added). In

context, the remarks in Solem obviously were not

intended to support such a conclusion.‘ Nevertheless,

* See, e.g. Exec. Order of October 30, 1876 (I Kappler 814)

(White Mountain); Exec. Order of May 3, 1877 (I Kappler 821)

(Mission Res.); Exec. Order of February 5, 1883 (I Kappler 823)

(Mission Res.); Exec. Order of August 19, 1874 (I Kappler 856)

(Blackfeet); Exec. Order of March 29, 1884 (I Kappler 885) (Tur-

tle Mountain); Exec. Order of January 28, 1876 (I Kappler 889)

(Malheur Res.); Exec. Order of September 13, 1882 (I Kappler

889-90) (Malheur Res.); Exec. Order of May 21, 1883 (I Kappler

890) (Malheur Res.); and Exec. Order of February 23, 1883 (1

Kappler 904-05) (Chief Moses).

’Comment, Reservations: The Surplus Lands Acts and the

Question of Reservation Disestablishment, 12 A.I.L.Rev. 57

(1986).

‘In contrast to the operative public domain language in the

Utah Acts and Proclamations, the reference to public domain in .

Solem was an isolated one. Public domain terminology did not

appear in the operative language of the Solem Act, and although

the reference itself was deemed supportive of disestablishment,

————

that such a conclusion could be erroneously attributed

to Solem shows how unsettling and disruptive the en

banc majority’s decision promises to be.

Authoritative review by this Court at this time will

stem the tide of writs for habeas corpus and other

actions, in precisely the same manner as in DeCoteau,

when this Court acted decisively and reversed the

decision of the Court of Appeals for the Eighth Cir-

cuit for a similarly fundamental misconstruction.

DeCoteau, 420 U.S. at 430, 447. In the absence of

such review, an inordinate expenditure of time, effort

and resources will continue to be wasted on an issue

that had been settled for decades.

3. Solem. If Solem can fairly be faulted with respect

to a lack of clarity on the public domain issue, as has

been suggested, then this Court’s attention to other

aspects of Solem at least merits additional consider-

ation. Apart from the fact that South Dakota’s po-

sition before this Court in Solem makes clear its view

of the holding in Solem, the guidance of Solem in

other respects leaves more to be desired. Insofar as

the ‘‘fairly clean analytical structure’ that Solem

counsels, (465 U.S. at 470) even the American Indian

Law Review Comment, supra, recognizes: ‘“‘a con-

torted body of doctrine’ —‘“‘two interpretations of the

history of the allotment policy as applied to the sur-

plus lands acts’—‘“‘two historical interpretations of

what the allotment process meant for the reservation

system: one, that it ended the reservations, and an-

other, that it did not.’’—‘“‘The interpretations of sur-

Solem noted that it was “hardly dispositive’’ when “balanced

against’”’ other persuasive evidence of continuing reservation sta-

tus. Solem, 465 U.S. at 475. See the discussion in Pet. at 14-

17, 19-21.

pius land acts is confused’”’—“‘The present case law,

discussed below, is now so confused.” Jd. at 61, 62,

69.

In light of this lack of clarity, it is not difficult to

understand the widely divergent views and marked

disagreement below—or elsewhere for that matter. It

is left to this Court to settle conclusively what Solem

means and to state whether the Court intended to

contradict more than a half a century of jurisprudi-

ence regarding the significance of public domain lan-

guage.

a. Part of the apparent confusion may stem from

a study that figured prominently in the Solem opinion.

Solem, 465 U.S. at 466 n. 5, 477 n. 21, 479 nn. 22

& 23, 480 nn. 24 & 25. This study dealt only with

the Cheyenne River Reservation. Subsequent to So-

lem, it was discovered that a prior comprehensive

thesis of the allottment era (1880-1920) by the same

author (1) significantly contradicts the author’s Solem

study and (2) expressly recognizes that the Utah Uin-

tah Act and others ‘‘followed the model’’ of the 1904

Rosebud Act—the same Act that the Rosebud Court

held reflected the baseline purpose of disestablishment

in the Rosebud legislation.®

b. Although Rosebud effectively and correctly re-

jected the Ash Sheep® and related lingering-beneficial-

interest argument, as “logically separate from the

question of disestablishment”, (Rosebud, 430 U.S. at

601, n. 23) and although Solem cites Rosebud with

°F. Hoxie, Beyond Savagery: The Campaign To Assimilate

The American Indians, 1880-1920 at 390 (Univ. Microfilms 1977).

®* Ash Sheep Co. v. United States, 252 U.S. 159 (1920).

10

approval repeatedly, Solem also cites Ash Sheep with

approval and again lends support throughout to the

Ash Sheep and related lingering-beneficial-interest ar-

gument. Solem, 465 U.S. at 468. While Solem rec-

ognizes that it is now “settled law that some surplus

land acts diminished reservations...and cther surplus

land acts did not...’’, (Solem, 465 U.S. at 469) it is

doubtful that this Court really intended for a holding

in a particular case to actually depend upon which

analysis of the same argument a particular court

might find persuasive. Rosebud, 430 U.S. at 601, n.

23; Solem, 465 U.S. at 469.

4. The en banc majority goes beyond Solem in several

additicnal respects. Although not at issue, the court

below initially describes this case as one involving

lands and title to lands:

...this writer agreed. ..who generally ruled

that the Uintah Reservation and its lands

remained the property of the tribes that are

involved. As to the question of whether the

acts dealing with the Uintah Forest and the

Uncompahgre Reservation mean that the In-

dians lost title to these lands, the view of

this writer is contrary to the view of the trial

court.

Pet. App. 3a. (Emphasis added.) But the parties in

this litigation were not contesting the title to the

lands involved. Secondly, while this Court has held

that opening land to settlement was not necessarily

inconsistent with continuing reservation status, the

11

en banc majority initially ‘“assumes the very question

to be decided’”’:

Actually the intent was to open the reser-

vation to non Indian settlers and this couldn’t

[disestablish the reservation].

Pet. App. at 4a. (Emphasis added.) But see, DeCoteau

and Rosebud.

Moreover, while Solem did note that there are “‘lim-

itations as to how far we will go to decipher con-

gress’s intent in any particular surplus land act’’ this

Court has consistently and meticulously, on both the

evidentiary and pragmatic level, at least considered

all arguments. The court below categorically rejected

this approach:

No particular significance can be given to

these articles since they were written from

the white settlers’ point of view.

Pet. App. 13a. See DeCoteau, 420 U.S. at 431, 432,

where documentation similar to that rejected by the

court below is set forth at length in the text of the

DeCoteau opinion.

5. In other instances, the en banc majority simply

ignores Solem. No particular significance is paid to

the fact that the area in dispute encompasses more

non-Indian land than any ‘Indian reservation” in the

United States and is populated by over 90% non-

Indians. Pet. at 9-10. DeCoteau and Rosebud discuss

justifiable expectations at length, and Solem specifi-

cally notes that such pragmatic factors, not present

7 Escondido Mutual Water Company v. La Jolla Band of Mis-

sion Indians, 466 U.S. 765, 777 (1984)

12

in Solem, were still entitled to considerable weight

and consideration. Solem, 465 U.S. at 471. The en

bane majority does not even discuss this aspect of

Solem. In this instance, the ‘“‘Solem standards’’ were

ignored.

6. The en banc majority also ignores the fact that the

United States has consistently taken the position that

the Utah Uncompahgre Reservation ceased to exist

because it was restored to the public domain. After

nearly a century of reliance upon express represen-

tations of the United States, by the people, the courts,

the state government and the Congress, the en banc

majority should have at least discussed the merits of

this position. This is especially so in light of the fact

that the United States does not lightly conclude a

reservation has been disestablished. In Seymour,

Mattz, Rosebud, DeCoteau and Solem the United

States argued against reservation disestablishment.

7. The en bane majority does not, however, neglect

to mention that the Justice Department supported its

conclusion with respect to the Uintah Reservation

when it appeared for the United States as amicus

curiae. However, the arguments of the United States

have not been consistent with reference to the Act

of February 8, 1887, 24 Stat. 388, (General Allotment

Act). In Seymour and Mattz and until DeCoteau, the

focal point of the position of the United States was

the General Allotment Act of 1887. Because there

were no major subsequent adjustments in federal In-

dian policy until 1934, the United States reasoned,

logically, that any Congressional constancy in federal

Indian policy vis-a-vis the surplus land statutes, must

necessarily be tied to the General Allotment Act. The

United States therefore concluded that surplus land

13

statutes subsequent to the enactment of the General

Allotment Act were not intended by Congress to dis-

establish reservations. After this Court held in

DeCoteau that Congress utilized the General Allot-

ment Act in surplus land statutes to continue to di-

sestablish Indian reservations after 1887, the United

States abandoned its argument relying on Congres-

sional constancy in federal Indian policy. In its stead,

the United States substituted a case by case analysis

based upon more subtle indicia of Congressional in-

tent. According to this new argument of the United

States, such an analysis must necessarily reflect that

Congressional intent vacillated from time to time and

from act to act. At any one time Congress might

utilize a standard format intending to disestablish one

reservation and the next time utilize the same or

similar format not intending the same result. The

concept of such vacillating Congressional intent is

made more elusive by the fact that no Congressional

enactment between 1887 and 1934 has yet surfaced

to establish when such a fundamental shift in

Congressional policy occurred. (Not only is the his-

torical record everywhere silent with respect to any

contemporary documentation to support such an ar-

gument, but it also affirmatively refutes the existence

of such an ill conceived Congressional plan). Never-

theless, the United States maintains this is what Con-

gress intended. Fortunately for Utah, the position of

the United States with respect to the Uncompahgre

Reservation does not hinge upon such subtleties.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

June 5, 1986

14

Respectfully submitted,

MARK V. MEIERHENRY

Counsel of Record

Attorney General of

South Dakota

Attorney General’s Office

500 East Capitol

Pierre, South Dakota 57501

(605) 773-3215

PAUL BARDACKE

Attorney General of

New Mexico

P.O. Drawer 1508

Sante Fe, New Mexico 87504

(505) 827-6000