# Amicus Curiae Brief — Utah v. Ute Indian Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1851%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 994 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1851%3A08. Public record. Not legal advice.