Amicus Curiae Brief — South Dakota v. Rosebud Sioux Tribe

APR 16 1991

OF THE CLERK

No. 90-749

3u the Supreme Court of the United States

OCTOBER TERM, 1990

STATE OF SOUTH DAKOTA, ET AL., PETITIONERS

Vv.

ROSEBUD SIOUX TRIBE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

LAWRENCE G. WALLACE

Dep -y Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

EDWARD J. SHAWAKER

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 205380

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the State of South Dakota success-

fully assumed jurisdiction under Public Law 280 by

passage in 1961 of a statute that provided for state

jurisdiction only over events occurring on highways

in Indian country and that did not provide for as-

sumption of full jurisdiction at the request of the

Tribes.

2. If so, whether the 166) statute remained in

effect after enactment of the Indian Civil Rights Act

of 1968 (which added a requirement of tribal con-

sent to further state assumptions of jurisdiction

under Public Law 280), even though at the time Con-

gress was considering the 1968 Act South Dakota

advised Congress that it was not exercising jurisdic-

tion and that it did not believe it had jurisdiction,

hecause the 1961 statute had been held invalid by

the South Dakota Supreme Court.

(I)

TABLE OF CONTENTS

Page

EI SESES nee peneeioeeseoecs sani sedewhaeccteepuceees es 1

BSCUEsION .........-....-.....-. eee caalac ania eau ciieuugecunacesebinicedcakon 9

raha ceca ss onntivnsennkavéseckocnwaanssccaerechesannss 18

TABLE OF AUTHORITIES

Cases:

Bryan V. Itasca County, 426 U.S. 373 (1976) _....... 2,15

California Vv. Cabazon Band of Mission Indians, 480

am wee C20Or) ........-.... dag ot ON ly Se PCOS 15

Cotton Petroleum Corp. Vv. New Mexico, 490 USS.

Nee cca cpnacadshccadhinuivelechbaveroesés 11

Hankins, In re, 80 8.D. 435, 125 N.W.2d 839

Nene ee oc ccepicneduseiccaxamyeie 4

Menominee Tribe of Indians y. United States, 391

U.S. 404 (1968) - ee : 11

Montens V. Blackfeet Tribe, ‘ATI U. Ss. 159 (1958) 14

New Merico Vv. Mescalero Apache Tribe, 462 U.S.

ee os, canncuvetdounsdiennmweuais 1]

Omaha Tribe v. Village of Walt hill, 334 F. Supp.

823 (D. Neb. 1971), aff’d, 460 F.2d 1327 (8th

Cir. 1972), cert. denied, 409 U.S. 1107 (1973). 14

Solem Vv. Bartlett, 465 U.S. 463 (1984) 11,18

South Carolina v. Catawba Indian Tribe, Inc., 476

Tee gp si sesibacnsvesinariwarenasns 1]

South Dakota v. Spotted Horse, No. 16644 (S. D.

Oct. 4, 1990), petition for cert. pending, No. 90-

eo ae 18

State v. Onihan, 427 N.W. 2d 365 (S. D. 1988) 7

Three Affiliated Tribes v. Wold Engineering, P.C.,

476 U.S. 877 (1986)... 4

United States v. High Elk, 902 F. 2d 660 (8th Cir.

ae SRR eee We 17

- Walker v. Rushing, 898 F. 2d 672 (8th Cir. 1990) 18

Washington vy. Confederated Bands & Tribes uf

Yakima Indian Nation, 439 U.S. 463 (1979).

(III)

Constitution and statutes: Page

5.1. Comat. Ast. A AAT ......................... 2

Act of Feb. 22, 1889, ch. 180, 25 Stat. 676 1

a, Se iz

Act of Aug. 15, 1953 (Pub. L. No. 280), ch. 505,

67 Stat. 588, 18 U.S.C. 1161 et seq. .........0000000000.. 2

§§ 1-5, 67 Stat. 588-590 2000. cepts 2

RD Oe Rrees OED Don cccccozicccosesccmsusvenease 17, 18

Lg 4 SPRUCE NR 2-3, 5

§ 7, I I crt atn Fo en Ce 2,3, 6, 11,18

Act of Nov. 15, 1990, Pub. L. No. 101-549, § 107,

BO Tas I aoa cere ce 15

Indian Civil Rights Act of 1968, Pub. L. No. 90-

284, Tit. IV, 82 Stat. 73, 25 U.S.C. 1301 et seq..... 4

SS 401-402, 25 U.S.C. 1821-1822 ......................... 8

§ 401 (a), 25 U.S.C. 1321 (a) ............. asides Ce

Pe Gap Som). 1) ee 4

§ 403 (a), 25 U.S.C. 1323 (a) ...... ee ene 14

5 406(B), Ze U.S.C. 1SZ8(B) ..............................- 14

S GUGCR), Be U0. TBE CD) .......--cnnceceeccccnnnnce-e-- 12

S.D. Codified Laws Ann. (1985):

I i nas ae es gases 7

RTO eA tee eet ee 3

Miscellaneous:

Clinton, Criminal Jurisdiction Over Indian Lands:

A Journey Through a Jurisdictional Maze, 18

BRT. Ti BOT, Be OD iecicsncecvcescccctsvencanneseasss 17

Constitutional Rights of the American Indian:

Hearings Before the Subcomm. on Constitutional

Rights of the Senate Comm. on tie Judiciary,

S.961, 8.962, 8.963, S.964, S.965, S.966, S.967,

S.968, and S.J. Ree. 40, 89th Cong., 1st Sess.

OTROS SNR AIC OMe LE TNE MEE 13

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-749

STATE OF SOUTH DAKOTA, ET AL., PETITIONERS

v.

ROSEBUD SIOUX TRIBE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE

This brief is submitted in response to the Court’s

invitation to the Solicitor General to express the

views of the United States.

STATEMENT

1. In 1889, Congress passed the Enabling Act

that enabled Washington, Montana, North Dakota,

and South Dakota to become States. Act of Feb. 22,

1889, ch. 180, 25 Stat. 676 (Enabling Act). To pro-

vide for continued federal supervision of the Indian

tribes located in the new States, Section 4 of the

Enabling Act required that the constitutional con-

ventions of the prospective States include in their con-

stitutions, “by ordinances irrevocable without the con-

(1)

2

sent of the United States and the people of said

States,” provisions by which

the people inhabiting said proposed States do

agree and declare that they forever disclaim all

right and title * * * to all lands * * * owned

or held by any Indian or Indian tribes; and that

* * * said Indian lands shall remain under the

absolute jurisdiction and control of the Congress

of the United States.

Enabling Act § 4, 25 Stat. at 677. In accordance

with this provision, Article XXII of the South Dakota

Constitution contains the same operative language.

2. In 1953, in response to the “problem of law-

lessness on certain Indian reservations, and the ab-

sence of adequate tribal institutions for law enforce-

ment,” Bryan vy. Itasca County, 426 U.S. 373, 379

(1976), Congress passed the Act of Aug. 15, 1953,

ch. 505, 67 Stat. 588, commonly known as Public

Law 280. The first five Sections of Public Law 280

ceded all criminal and civil jurisdiction over matters

involving Indians in Indian country (with exceptions

for certain specified reservations) to five named

States (referred to as mandatory States), which did

not include South Dakota. 67 Stat. at 588-590. See-

tions 6 and 7 granted all other States (referred to

as option States) the option of assuming jurisdiction.

First, Section 6 dealt with the problem faced by

States (referred to as disclaimer States), such as

South Dakota, whose constitutions prohibited any

assumption of jurisdiction in provisions that could

not be amended without the consent of the United

States; Section 6 granted the consent of the United

States to the people of any State to amend their con-

stitutions “to remove any legal impediment to the

assumption of civil and criminal jurisdiction.” 67

3

Stat. at 590. Second, Section 7 dealt with all remain-

ing States, providing consent for them “to assume

jurisdiction at such time and in such manner as the

people of the State shall, by affirmative legislation,

obligate and bind the State.” Jbid. Most impor-

tantly, Public Law 280 did not require the consent

of the Indian tribes as a condition to the assertion

of state jurisdiction.’

3. South Dakota has responded to Public Law 280

with four separate statutes, each of which attempted

to accept all or part of the jurisdiction described in

Public Law 280. For various reasons, three of those

statutes no longer are in effect. See Pet. 5-6, 8 (dis-

cussing 1957, 1959, and 1963 statutes). This case

involves the remaining statute, which was passed in

1961. The statute provided for immediate assump-

tion of jurisdiction “fas to criminal offenses and civil

causes of action arising on any highways,” and for

complete assumption of all criminal and civil juris-

diction upon a proclamation by the governor that the

federal government “has made proper provision for

the reimbursement to [South Dakota] for the added

costs in connection with the assumption of said juris-

diction.”” S.D. Codified Laws Ann. 1-1-21 (1985).

Recause the governor has not issued such a proclama-

‘ion, this statute effectively assumed only jurisdic-

tion related to highways.

Pursuant to the 1961 statute, South Dakota ap-

parently exercised jurisdiction over highways in In-

dian country from 1961 to 1964. In 1964, however,

the South Dakota Supreme Court, applying federal

Inw, ruled that the 1961 enactment was invalid be-

1 For a general discussion of Public Law 280, see Weshing-

ton V. Confederated Bands & Tribes of Yakima Indian

Nation, 439 U.S. 462, 471-474 (1979).

4

cause it did not comply with Public Law 280. Jn re

Hankins, 80 S.D, 435, 125 N.W.2d 839 (1964). The

two principal bases for the court’s holding were, first,

its conclusion that Public Law 280 did not authorize

assumption of jurisdiction “over only a portion or

part of a reservation,” 80 S.D. at 442, 125 N.W.2d

at 843, and, second, its view that the 1961 statute,

by virtue of its being limited to highways, did not

serve the purposes of Public Law 2806. Instead, “‘it

would proliferate the law enforcement authorities in

Indian country by adding the state as another entity

with geographically limited jurisdiction.” 80 S.D. at

443, 125 N.W.2d at 843. Accordingly, South Dakota

ceased enforcing the 1961 statute in 1964.”

4. During the 1960’s, Congress became dissatis-

fied “with the involuntary extension of state jurisdic-

tion over Indians who did not feel they were ready

to accept such jurisdiction, or who felt threatened by

it.” Three Affiliated Tribes v. Wold Engineering,

P.C., 476 U.S. 877, 892 (1986); see Pet. App. A30-

A32. In response to this and other concerns, Con-

gress in 1968 enacted Title IV of the Civil Rights

Act of 1968, commonly known as the Indian Civil

Rights Act, Pub. L. No. 90-284, 82 Stat. 73, codified

at 25 U.S.C. 1301 et seg. Sections 491(a) and

402(a), 25 U.S.C. 1321(a) and 1322(a), established

a new rule for assumption of criminal and civil juris-

diction over Indian country by “any State not having

jurisdiction,” permitting new assumptions of juris-

diction only “with the consent of the Indian tribe.”

Similarly, Section 403(b), 25 U.S.C. 1323(b), re-

* About the same time, the South Dakota legislature’s last

attempt at assuming jurisdiction over Indian country failed

when it was defeated in a referendum vote by a 3 to 1 margin.

Pet. App. Al0-A11.

”

pealed Section 7 of Public Law 280 (which, as dis-

cussed above, had permitted assumption of jurisdic-

tion by unilateral state action), but provided that

the repeal “shall not affect any cession of jurisdiction

made pursuant to such section prior to its repeal.”

5. Thereafter, in Washington v. Confederated

Bands & Tribes of Yakima Indian Nation, 439 U.S.

463 (1979), this Court addressed the permissibility

of partial assumptions of jurisdiction under Public

Law 280. That case involved a statute enacted by

Washington—a State covered by the same Enabling

Act as South Dakota and thus, like South Dakota,

a disclaimer State subject to the provisions of Sec-

tion 6 of Public Law 289. The statute in question

asserted Sull criminal and civil jurisdiction over non-

trust, fee lands within Indian country. With respect

to other land in Indian country, the measure asserted

jurisdiction over eight subject-matter areas, includ-

ing such matters as operation of motor vehicles on

highways, domestic relations, juvenile delinquency,

and adoption proceedings. See 439 U.S. at 465 n. 1.

The statute also provided that the State would assert

full criminal and civil jurisdiction over Indian coun-

try at the request of the Tribe concerned.

This Court rejected the contention that Public Law

280 did not permit disclaimer States (such as Wash-

ington and South Dakota} to assume only a portion

of the jurisdiction permitted by Public Law 280.

It looked first to the language in Section 7 of Public

Law 280, which “permits option States to assume

jurisdiction ‘in such manner’ as the people of the

State shall ‘by affirmative legislative action, obligate

and bind the State to assumption thereof.’ ” 439 U.S.

at 495. This Court observed that “Jo|]nce the re-

quirements of $6 have been satisfied, the terms of

6

$7 appear to govern the scope of jurisdiction con-

ferred upon disclaimer States.” bid.

This Court further explained that a contrary con-

clusion would have been inconsistent with the pur-

pose of Public Law 280:

Section 6 * * * was essentially an after-

thought designed to accomplish the limited pur-

pose of removing any barrier to jurisdiction

posed by state organic law disclaimers of juris-

diction over Indians. All option States were

originally treated under the aegis of $7. * * *

Indeed, to the extent that the Tribe and the

United States suggest that the disclaimer States

stand on a different footing from all other option

States, their argument makes no sense. It would

ascribe to Congress an intent to require States

that by force of organic law barriers may have

had only a limited involvement with Indian coun-

try to establish the most intrusive presence

possible on Indian reservations, if any at all, and

at the same time an intent to allow States with

different traditions to exercise more restraint in

extending the coverage of the law.

A39 U.S. 496-497.

But the Court did not resolve the case solely on the

basis of this analysis. Instead, it explicitly stopped

short of saying that all partial assumptions are per-

missible: it concluded only that the phrase “ ‘in such

manne, * * * is at least broad enough to authorize

a State to condition the extension of full jurisdiction

over an Indian reservation on the consent of the tribe

affected.” This Court supported its conclusion by

pointing out that ‘ne Washineton scheme was par-

ticularly compatible with the law enforcement pur-

poses of Public Law 280 because it did “not reflect

7

an attempt to reap the benefits and to avoid the bur-

dens of the jurisdictional offer made by Congress.”

439 U.S. at 498. Because the statute provided

for complete assumption of jurisdiction at the Tribe’s

request, the Tribe had a remedy at hand if the par-

tial assumption led to any practical difficulties in law

enforcement; the Tribe could ask the State to assume

full jurisdiction. Jd. at 498-499.

6. In reliance on Yakima, the State of South

Dakota concluded that, notwithstanding the 1964

decision of the South Dakota Supreme Court in

Hankins and passage of the Indian Civil Rights Act

of 1968, it was entitled to assert jurisdiction under

the 1961 statute over conduct taking place on high-

ways in Indian country. Respondents accordingly

instituted this action in the United States District

Court for the District of South Dakota. On March

31, 1989, that court granted the State’s motion for

summary judgment. First, relying on a recent deci-

sion of the South Dakota Supreme Court,* the court

concluded that the 1961 statute was still in effect.

3 See State v. Onihan, 427 N.W.2d 365, 370 (S.D. 1988).

Onihan did not clearly address the question whether, as a mat-

ter of state law, a statute invalidated as inconsistent with fed-

eral law is voided, or simply suspended, so that it automatically

springs back into existence upon a change in federal law.

A strong argument could be made, as a matter of South

Dakota law, that after Han/cins the 1961 statute was com-

pletely void and thus could not spring back into effect to

justify jurisdiction after Yakima. See S.D. Codified Laws

Ann. § 1-1A-1 (1985) (“every statute * * * of the state of

South Dakota enacted * * * in contradiction to the provisions

of the United States Constitution, and so judicially deter-

mined by a final judgment rendered by the South Dakota

Supreme Court * * * is vo?d within the jurisdiction of the

state of South Dakota” (emphasis added) ).

8

Pet. App. A79-A80. Relying on Yakima and its view

of the policies underlying Pubiic Law 280, the court

concluded that the statute satisfied Public Law 280.

Pet. App. A80-A94. Finally, the court rejected the

contention that the State’s resumed exercise of juris-

diction violated the Indian Civil Rights Act because

it occurred without the Tribe’s consent. Jd. at A95-

A104. The court reasoned that the Indian Civil

tights Act expressly stated that it would have no

effect on jurisdiction that already had been assumed,

and that the consent requirement set forth in Sections

1321 and 1322 applied only to new assumptions of

jurisdiction after 1968. Because South Dakota had

assumed jurisdiction in 1961, the Indian Civil Rights

Act did not apply. 7d. at A102-A104.

On appeal, the court of appeals reversed. First, it

concluded that the 1961 statute did not comply with

Public Law 280. The court distinguished Yakima in

two ways. First, the Washington statute upheld in

Yakima provided that the State would assume full

jurisdiction upon the request of the tribe involved.

Therefore, the Washington statute could not be con-

strued as “an attempt to reap the benefits and to

avoid the burdens of the jurisdictional offer made by

Congress.” Pet. App. A22 (quoting Yakima, 439

U.S. at 498). By contrast, the court reasoned, the

South Dakota scheme takes jurisdiction only over the

area most likely to generate significant revenues—

enforcement of traffic laws—and conditions assump-

tion of full jurisdiction on federal reimbursement.

Id. at A25. Second, the court concluded that the

South Dakota statute did not adequately advance the

purposes of Public Law 280, because such a limited

assumption of jurisdiction would not significantly

limit reservation lawlessness or reduce the federal

presence on the reservation. Jd. at A26-A28.

9

As an alternative basis for its holding, the court

concluded that South Dakota’s “retroactive applica-

tion of a new statutory interpretation,” put into

effect without tribal consent, violated the require-

ment of consent set forth in the Indian Civil Rights

Act of 1968. Pet. App. A29. It ruled that Congress

intended to “eliminate completely the ability of a

state to assume jurisdiction, without tribal consent,

at any time and in any manner after 1968.” Jd. at

A33. The tribes therefore had a vested right in the

tribal consent requirement that precluded the retro-

active application of the Yakima construction of Pub-

lic Law 280 to validate the 1961 assertion of jurisdic-

tion. Jd. at A43.

DISCUSSION

In our view, the correct answers to the questions

presented by the court of appeals’ decision are open

to debate, but there is no reason for this Court to

decide these questions. This case is entirely unique;

it involves purely historical questions regarding a

statute repudiated by Congress more than two dec-

ades ago. Moreover, reversal of the decision below

and disturbance of the status quo on the South Da-

kota reservations would call into question convictions

secured by the United States in the reasonable belief

that South Dakota did not have jurisdiction.

1. The State’s first contention is that the court of

appeals misapplied this Court’s decision in Yakima.

At the heart of the court of appeals’ decision on this

point was its conclusion that this case should be

treated differently because South Dakota’s offer to

assume jurisdiction was not nearly as broad as the

offer at issue in Yakima. As the court’s opinion

demonstrates. Pet. App. A20-A24, certain passages

in the Yakima opinion support this reading. The

10

most important of these appear in the last three

paragraphs of Part IV of the Yakima opinion, 439

U.S. at 498-499, in which this Court responded to the

United States’ contention that the partial assumption

of jurisdiction under the Washington statute was in-

consistent with the purposes of Public Law 280. As

we discussed above, pp. 6-7, this Court did not reject

the United States’ argument outright, but instead

explained that in its view the Washington statute

did fulfill the purposes of Public Law 280 because,

among other things, it provided that the State of

Washington would assume full jurisdiction upon the

request of the Tribe.

We agree with the court of appeals’ conclusion that

the South Dakota statute is less compatible with Pub-

lic Law 280 than Washington’s statute was. South

Dakota’s assumption of nothing more than highway

jurisdiction—which might be thought to finance it-

self—without any of the more burdensome types of

jurisdiction assumed by Washington in Yakima

(such as domestic relations and juvenile delinquency )

suggests that the State here, unlike Washington in

Yakima, is in a position to “reap the benefits and to

avoid the burdens of the jurisdictional offer made by

Congress,” Yakima, 439 U.S. at 498. Moreover, be-

cause the State is not offering to assume full jurisdic-

tion upon the Indians’ request, any practical prob-

lems caused by this partial assumption will remain

in effect indefinitely.

On the other hand, it is by no means clear that

these portions of the opinion were necessary to the

holding. Yakima can be read, rather, to turn solely

on the Court’s interpretation of the statutory langu-

age, rather than its views as to the closeness of the

fit between the Washington statute and the goals of

11

Public Law 280. Read from this perspective, Yakima

would represent a conclusion that Section 7 of Publie

Law 280 comprehensively permitted partial assump-

tions of jurisdiction “in such manner as the people of

the State’ shall” provide. Under this reading, there

would be no need for courts to engage in a case-by-

case analysis of the extent to which particular state

statutes are compatible with the policies of the 1953

federal statute.

This reading of Yakima, though, effectively would

render superflous the passages discussed above, in

which the Court justified the Washington statute as

substantially furthering the overall policies of Public

Law 280. In sum, the Yakima opinion does not

clearly resolve the issue presented by this case —

which is essentially whether Yakima validates all par-

tial assumptions, or only those not demonstrably in-

compatible with the policies of Public Law 280. The

latter interpretation is, in our view, the one more in

keeping with the Court’s settled practice of strictly

construing statutes that terminate tribal authority

or transfer it to the States, see South Carolina y. Ca-

tawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986) ;

Solem vy. Bartlett, 465 U.S. 463, 470-472 (1984):

Menominee Tribe of Indians vy. United States, 391

U.S. 404, 412-413 (1968), and with the special rules

governing preemption of state authority over Indian

reservations, see, e.g., New Mexico vy. Mescalero

Apache Tribe, 462 U.S. 324, 332-336 (1983) ; Cotton

Petroleum Corp. v. New Mexico, 490 U.S. 163, 176-

177 (1989). Accordingly, we believe the court of ap-

peals correctly concluded that the rule of Yakima

does not properly extend to the much more extremely

selective assumption of jurisdiction at issue here and,

hence, that the 1961 state statute was not an effective

assumption of jurisdiction under Public Law 280.

12

2. The second question raised by the State chal-

lenges the court of appeals’ alternative holding that,

even if South Dakota’s 1961 statute validly assumed

jurisdiction at that time, it cannot be resuscitated

without tribal consent after enactment of the Civil

Rights Act of 1968. Like the first question, this raises

a unique issue to which the answer is not entirely

clear.

We may assume arquendo that Yalima would he

treated as fully retroactive in the sense that the

South Dakota decision in Han/tins would be regarded

as having been incorrect even in 1964 and _ that

Hankins did not invalidate the state statute, but only

suspended its effect until this Court undermined the

Hankins analysis in Yakima, see discussion, p. 7

& n.3, supra. But even so, it remains unclear whether

the state statute could be given effect under federal

law—as manifesting a valid assumption of jurisdic-

tion under Public Law 280—after passage of the

Civil Rights Act of 1968.

It is true that Section 404(b) of the 1968 Act,

25 U.S.C. 1323(b), provides that the 1968 Act does

not “affect any cession of jurisdiction made pursuant

to [the former Section 7] prior to its repeal.” But

this does not necessarily resolve the question. In light

of the practical and legal circumstances that existed

in 1968—the South Dakota Supreme Court in 1964

had held the state statute invalid under federal law,

South Dakota therefore was not in fact exercising

any jurisdiction over offenses by or against Indians

from 1964 to 1968, and representatives of South

Dakota specifically informed Congress while it was

considering the 1968 Act that the State was not exer-

cising and did not then have power to exercise such

13

jurisdiction ‘—there is a substantial argument that

in 1968 South Dakota was a State “not having juris-

diction” over offenses by or against Indians on high-

ways in Indian country, as described in 25 U.S.C.

1321(a), and that it thereafter could acquire such

jurisdiction only with the consent of the Tribes con-

cerned.

At bottom, the question is whether when Congress

referred to States “having jurisdiction,” it was using

the term in a narrow technical sense (asking: whether

the State might at some point be held to have had the

theoretical power to decide cases and enforce its judg-

ments) or in a more practical sense (asking whether

the State was recognized as having jurisdiction and

actually was devoting enforcement and prosecutorial

resources to the exercise of that jurisdiction). Al-

though at first blush the narrower reading of the

term may seem more natural, there are substantial

arguments to the contrary. The reference to jurisdic-

tion in the 1968 statute amending Public Law 280

surely should be interpreted in light of the require-

ments of Section 7 of Public Law 280 itself, which

authorized state assumption of jurisdiction only if

the people “shall * * * obligate and bind the State

to assumption thereof.” It is difficult to conclude that

South Dakota was obligated and bound to assumption

of jurisdiction in 1968, when the highest court of that

State had held its assumption invalid four years pre-

viously and the State was not exercising jurisdiction

because of its belief that it did not have jurisdiction.

4 See, e.g., Constitutional Rights of the American Indian:

Hearings Before the Subcomm. on Constitutional Rights to the

Senate Comm. on the Judiciary, S.961, S.962, S.963, S.964,

S.965, S.966, S.967, S.968, and S.J. Res. 40, 89th Cong., 1st

Sess. 117 (1965) (statement of South Dakota Assistant At-

torney General) ; id. at 16 (statement of Senator McGovern).

For a-detailed discussion, see Br. in Opp. 11-13.

-4._

14

This position is buttressed by the uncontradicted

views presented to Congress in 1968 that South

Dakota was not one of the States that had assumed

jurisdiction under Public Law 280." In light of the

canon that “statutes are to be construed liberally in

favor of the Indians, with ambiguous provisions in-

terpreted to their benefit,” Montana v. Blackfeet

Tribe, 471 U.S. 759, 766 (1985), we believe the court

of appeals was correct in concluding that the 1968

Act’s requirement of tribal consent properly applies

to the unusual circumstance of subsequent reinstitu-

tion of state authority presented here.

3. Whatever the correct view of the merits of the

case, practical considerations strongly suggest that

this case does not warrant further review. Most im-

portantly, the situation in South Dakota is unique,

so a decision by this Court would be unlikely to pro-

vide substantial guidance to any other jurisdiction.

On this point, we disagree with the State’s sugges-

tion, Pet. 14-15, that three other States have similar

partial assumption statutes that the rationale of this

‘ase would govern.” The first of these, Arizona, is

° See Pet. App. A32-A33; Br. in Opp. 11-13.

* Although petitioner does not address it, Nebraska appar-

ently has adopted a jurisdictional scheme similar to that

of South Dakota over the Omaha Indian Reservation through

a retrocession of jurisdiction accepted by the Secretary of the

Interior under 25 U.S.C. 1323(a). Litigation over the valid-

ity of that retrocession ended almost twenty vears ago. See

Omaha Tribe v. Village of Walthill, 334 F. Supp. 823 (D.

Neb. 1971), aff'd per curiam, 460 F.2d 1327 (8th Cir. 1972),

cert. denied, 409 U.S. 1107 (1973). Because Nebraska was

one of the jurisdictions required to accept jurisdiction under

Public Law 280, this partial assumption was accomplished

through the discretionary acceptance of a retrocession by the

Secretary of the Interior, exercised at the behest of the Tribe.

Thus, clarification of the law with respect to South Dakota

15

said to have exerted jurisdiction over air pollution.

In light of the Court’s holdings that Public Law 280

does not grant general authority to exercise regula-

tory jurisdiction over Indian country, see California

v. Cabazon Band of Mission Indians, 480 U.S. 202,

207-208 (1987); Brvan vy. Itasca County, 426 U.S.

373, 383-390 (1976), the validity of Arizona’s claim

is subject to serious doubt for reasons not implicated

here. Moreover, this scheme is likely to change in the

immediate future, because the 1990 Amendments to

the Clean Air Act have granted the Administrator

of the EPA authority to determine whether States

or Indian tribes should exert Clean Air authority on

reservations. Act of Nov. 15, 1990, Pub. L. No. 101-

549, § 107, 104 Stat. 2464-2465. The other two

States, Montana and Iowa, have regimes dramatically

different from the South Dakota scheme before this

Court. Montana has exterted full criminal jurisdic-

tion over the Flathead Reservation, Iowa full civil

jurisdiction over the Sac and Fox Reservation. Be-

cause, unlike South Dakota, these States have not

carved out particular subject matters over which to

accept jurisdiction, their statutes do not have the

defects the Eighth Cireuit identified in the South

Dakota statute. Finally, we are aware of no other

assumption statute declared invalid by a lower court

before 1968 and sought to be resuscitated in light of

Yokima. Thus, any attention the Court may give to

this point would be unlikely to have application to

any other case.

Furthermore, as we have discussed above, pp. 4-5,

the policies Congress was pursuing when it enacted

would not affect the situation in Nebraska; because the Tribe

has consented to the jurisdictional! situation, Nebraska’s sit-

uation is much closer to Yakima than the case at hand.

16

Public Law 280 in 1953 do not comport with its goals

under current federal Indian policy. In particular,

Congress explicitly has rejected the portion of Public

Law 280 on which South Dakota relies here, which

allows a State, without the consent of the affected

Indians, to assume jurisdiction over offenses by or

against Indians in Indian country. Whatever the

technical merits of the court of appeals’ decision, the

bottom line of the decision, which prevents South Da-

kota, without the consent of the affected Tribes, from

assuming jurisdiction it did not claim to have and

was not exercising as of 1968, is consistent with cur-

rent federal Indian policy as embodied in the 1968

Act. In sum, there is no need for the Court in this

unique case to undertake to ascertain the intent Con-

gress had under a 1953 statute when the only effect

a reversal could have would be to undermine the

policy Congress has expressed in more recent statutes.

The decision below leaves no jurisdictional void.

The United States will continue to have jurisdiction

ever crimes committed by or against Indians on

reservation highways in South Dakota, as elsewhere

in Indian country in that State; the Tribes will con-

tinue to have concurrent jurisdiction over crimes com-

mitted by their members; and the State will continue

to have jurisdiction over crimes committed by non-

Indians that do not involve Indian victims. If any

inefficiencies appear in this allocation of authority,

the federal government, the Tribes, and state officials

may enter into cross-deputization agreements, as they

have before.

We note that the United States has taken its re-

sponsibility seriously. For example, we have been

advised by the office of the United States Attorney

for the District of South Dakota that since 1988 the

United States has secured at least 30 convictions for

17

involuntary manslaughter on the highways in South

Dakota Indian country, as well as an unspecified

number of convictions for murders, assaults, and

rapes. Similarly, the Tribes have sought vigorously

to enforce laws against drunk driving; as the record

in this case shows, in the three years preceding this

lawsuit 901 citations were issued by tribal officers

for driving under the influence. C.A. App. 806-807.

Reexamination of this status quo would cast a shadow

on the past federal criminal convictions in South Da-

kota.’ Moreover, if the Court were to accept South

Dakota’s claim that it has exclusive criminal jurisdic-

tion over those highways, see Pet. 39-46, it would call

into question the validity of all convictions since 1961,

even convictions secured by the Tribes.*

7It is not clear that assumption of jurisdiction by South

Dakota would have ended federal jurisdiction, because the

effect on federal jurisdiction of an option State’s assumption

of jurisdiction under Public Law 280 is unclear. Public Law

280 expressly provides that federal jurisdiction no longer

applies in areas where jurisdiction was ceded to mandatory

States. See 18 U.S.C. 1162(c¢). The absence of any such pro-

vision with respect to option States supports an argument

that federal jurisdiction would continue even after the State

assumed jurisdiction. See United States v. High Elk, 902

F.2d 660 (8th Cir. 1990) (per curiam) (reaching this re-

sult). But the structure of Public Law 280 and the general

disaffection Congress has expressed with concurrent state-

federal jurisdiction over Indian country can support sub-

stantial areuments to the contrary. See Clinton, Criminal

Jurisdiction Over Indian Lands: A Journey Through a Juris-

dictional Maze, 18 Ariz. L. Rev. 508, 549-550 (1976) (argu-

ing that assumption of Public Law 280 jurisdiction by option

States ends federal jurisdiction).

8 We disagree with the State’s argument on this point.

Nothing in Public Law 280 suggests it was intended to divest

the tribes of their inherent criminal jurisdiction. In light of

Public Law 280’s express statement that assumption of juris-

18

Finally, we point out that the South Dakota Su-

preme Court has acceded to the decision of the Eighth

Circuit in this case. See South Dakota v. Spotted

Horse, No. 16644 (Oct. 4, 1990), Br. in Opp. App.

8a-9a.” Accordingly, there is no remaining likelihood

that the state and federal judicial systems will render

contrary decisions on this point. Cf. Solem v. Bart-

lett, 465 U.S. at 466 (suggesting that this Covrt

granted certiorari to settle such a conflict).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

EDWARD J. SHAWAKER

ANNE 8S. ALMY

Attorneys

diction by the States would divest the United States of juris-

diction, see 18 U.S.C. 1162(c), congressional silence on this

point strongly suggests that tribal jurisdiction remains intact.

See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990).

® A petition for a writ of certiorari, No. 90-1003, is pending

in this Court seeking review of that decision. For the reasons

discussed in this brief, we believe the petition in that case

also should be denied.

GOVERNMENT PRINTING OFFICE. 1991 282061 20495