Amicus Curiae Brief — Goham v. Nebraska

‘UBRARY"@ 2

Sibeene SOUR: heeded ee

Guoreme Couto te ined tts

October Term, 1971

No. 71-293

Petitioner,

vs.

STATE OF NEBRASKA,

Respondent.

BRIEF OF NATIVE AMERICAN RIGHTS FUND

AS AMICUS CURIAE IN SUPPORT OF A

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF NEBRASKA

David H. Getches

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Counsel for Amicus Curiae

BRADFORD PRINTING, DENVER

TABLE OF CONTENTS

BRGRTOSE OE ACNE CIEE coceccceeccccecceconrenceceivesevecese

Site ewe Cee oa a

Reasons for Granting the Writ ........................2....- zt

1. Congress’ intent to give indian tribes a voice

in the determination cf jurisdiction over their

lands, and to vest the Executive with discre-

tion over acceptances of retrocession of state

jurisdiction is frustrated by the decision

DORs. xccicscéenseceimnansonaenaiaacnaane

2. Review by this court is needed to resolve the

jurisdictional chaos on the Omaha Indian

BEM OII . svicscvnsintccieaaninceaumdaneunta

CN i i

TABLE OF CITATIONS

Cases:

Alaska Pacific Fisheries v. United State-, 248 U.S.

FO CIDE D icncscctecnecaiee

Kennerly v. District Court, 400 U.S. 423 (1971) ....

Menominee Tribe v. United States, 101 Ct. Cls. 10

CRDBB) eecvicuiiicconcveusansecccenaleaeneea

Seminole Nation v. United States, 316 U.S. 286

CFSE) cecssinedcscscesemeceansiaees eee

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

Williams v. Lee, 358 U.S. 217 (1959) ...................-

Statutes, Regulations, and Orders:

Act of August 15, 1953, Pub. L. No. 83-280, 67

OUR, SII wiccscowsiccivsimanahiandisciateatinaasamaiaaeaiaasa nt ecaaeias

5, 6

I

ii

Act of April 11, 1968, Pub. L. No. 90-284, 82 Stat.

es en ne ee ee ee eae 4,8

OI I is csciniciie csrasiieiearesasebeeae 2

OO I i cccceseeeresensansannintenin or 4

25 U.S.C. §1323 (a) -coeeccesecccnvecceveeccneseseneessoeesens 2,3, 5,6

25 U.S.C. §1323(D) -.-caeeccceecccneecsneeesoueessneeeseeesene: 4

25 U.S.C. §1326 o.--ceeeccoeeccoe-- Perec 5

Executive Order No. 11435, November 21, 1968 .... >.

Legislative Materials:

114 Cong. Rec. 9111, 90th Cong., 2d Sess., April

eis siicitensiniilinipeccceiendihiciaateannnbapiaeininnisdceceiieniainitin 5

Hearings on S. 966 Before the Subcomm. on Consti-

tutional Rights of the Senate Comm. on the Judi-

ciary, 89th Cong., 1st Sess. (1965) ................---------- 5,6

Hearings on S. 1843 Before a Subcomm. of the

House Comm. on the Judiciary, 90th lite 2d Sess.

AEE ciccctesihascecenccicdslamienedenbialaaen oe > 4

IN THE

Supreme Court of the Anited Siates

October Term, 1971

No. 71-293

WAYNE GOHAM,

Petitioner,

VS.

STATE OF NEBRASKA,

Respondent.

BRIEF OF NATIVE AMERICAN RIGHTS FUND

AS AMICUS CURIAE IN SUPPORT OF A

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF NEBRASKA

INTEREST OF AMICUS CURIAE

Petitioner and respondent have consented in writing to

the filing of this brief. Copies of their consents have been

forwarded to the Clerk of the Court. Amicus has a consider-

able interest in the outcome of the case and is particularly

qualified in the specialized area of Indian law.

Native American Rights Fund is a non-profit corporation

incorporated in the District of Columbia which provides

legal representation and counsel to Indians and Indian

tribes throughout the country in cases of major significance.

The Fund is supported primarily by private grants and

2

contributions. It participates as amicus curiae in this case

because of the broad importance to the development of

Indian law and the impact which the decision will have on

many of its clients.

The question generally of the terms upon which a retro-

cession of state jurisdiction over Indians can or must be

made is relevai.* to the situation of Indians in all states

where Public Law 280 applies. Resolution of the specific

question of whether the state or the federal government has

jurisdiction over crimes committed on the Omaha Indian

Reservation in Nebraska is >f vital importance to the persons

residing there.

STATEMENT OF THE CASE

In 1953, Congress passed the Act of August 15, 1953,

Public Law No. 83-280, 67 Stat. 588 (Public Law 280),

providing that states could assume jurisdiction over offenses

committed by or agairst Indians in Indian country without

consulting concerned tribes. The statute, as it pertains to

criminal offenses, is codified at 18 U.S.C. §1162.

Congress was aware that in certain instances neither the

Indians affected, nor the states, were satisfied with juris-

diction as it existed under Public Law 280. Therefore,

Congress resolved to allow these states to retrocede to the

United States jurisdiction which had been assumed pursuant

to Public Law 280. 25 U.S.C. §1323(a).

On April 16, 1969, the State of Nebraska retroceded its

jurisdiction over Indian country in Thurston County,

Nebraska, to the United States pursuant to 25 U.S.C.

§1323(a).

The Secretary of the Interior, under authority delegated

to him by the President, had the responsibility of accepting

or rejecting the retrocession. He consulted with the two

3

tribes concerned, Winnebago and Omaha, and found that

the Winnebago Tribe, based upon its own peculiar circum-

stances, did not favor retrocession while the Omahas did.

Acting on these expressions of preference by the tribes, the

Secretary accepted retrocession only as to the Omaha Indian

Reservation by publication of a notice in the Federal Regis-

ter making the retrocession effective October 25, 1970."

The Nebraska Legislature, on February 1, 1971, at-

tempted to withdraw its offer of retrocession on the ground

that the United States did not accept jurisdiction on the

exact terms offered. Taking its cue from the Legislature's

application of contract law to the situation, the Nebraska

Supreme Court determined on May 28, 1971, that the

acceptance of retrocession by the Secretary of the Interior

over seven months before was not effective because the

Secretary’s acceptance varied from the terms of the offer.

Accordingly, the Nebraska Supreme Court determined that

it did have jurisdiction over Petitioner Wayne Goham and

affirmed his conviction for a crime committed on the Omaha

Indian Reservation.

REASONS FOR GRANTING THE WRIT

The actions by the State of Nebraska raise serious ques-

tions about the intent of Congress under 25 U.S.C.

§1323(a), including the scope of the Secretary’s discretion

under that statute. The present jurisdictional status of the

Omaha Indian Reservation is in a state of disruption and

law enforcement is in jeopardy.

1. Congress’ intent to give Indian tribes a voice in the

_ determination of jurisdiction over their lands, and to vest

1This was done under authority of Executive Order No. 11435, November 21,

1968, delegating to the Secretary the authority to accept retrocessions of juris-

diction by publication in the Federal Register.

4

the Executive with discretion over acceptances of retroces-

sion of state jurisdiction is frustrated by the decision below.

A weakness of Public Law 280 was its failure to make

cession of jurisdiction dependent upon the will of the Indians

affected by it. When Congress enacted the 1968 Civil Rights

Act, Act of April 11, 1968, Public Law No. 90-284, 82

Stat. 79, the intent was to vest in Indian tribes some control

over whether state or federal authorities should have juris-

diction over their lands. Section 7 of Public Law 280 gave

blanket consent of the United States to the assumption of

jurisdiction by the legislatures of states not named in the

act itself. This section was specifically repealed by the Civil

Rights Act of 1968 (25 U.S.C. §1323(b)), and Congress

made it clear that state jurisdiction could only be acquired

over Indians where the Indians to be affected by it consent.

25 U.S.C. §1322.

In his message to Congress, March 6, 1968, the President

said of the proposed change in the law:

Fairness and basic democratic principles require

that Indians on the affected lands have a voice in

deciding whether a State will assume legal juris-

diction on their land. I urge Congress to enact

legislation that would provide for tribal consent

before such extensions of jurisdiction take place.

Hearings on S. 1843 Before a Subcomm. of the House

Comm. on the Judiciary, 90th Cong., 2d Sess. at 131

(1968).

There is no doubt that Congress was adamant in its

intention to be certain that the Indians affected by a change

in jurisdiction consent to it.2 The 1968 Act specifies re-

*“Mr. Chairman, I know of no Indian tribe in this country which does not support

the amendment to P. L. 280.... [T]his provision [would] assure the tribes of a

voice in the determination of whether they would be regulated by state law or

5

quirements for a special election for this purpose. 25 U.S.C.

§1326.

This Court dealt with the question of tribal consent to

State jurisdiction under the 1968 Act only a few months ago.

Kennerly v. District Court, 400 U.S. 423 (1971). While

disagreeing on the procedure for obtaining it, both the per

curiam and dissenting opinions were in agreement that tribal

consent is of critical importance.

It is inconceivable that Congress intended common law

contract principles to be used to ascertain whether the

Secretary of the Interior properly accepted retrocession by

the State of Nebraska. Moreover, Congress did not intend

that Nebraska should be able to impose conditions and re-

Strictions on the Secretary which effectively strip him of

discretion necessary to the proper performance of his office.

Just as Congress intended that Nebraska have broad dis-

cretion to determine the nature and extent of the jurisdiction

it would retrocede, Congress also intended that the Secretary

have broad discretion to determine when and to what extent

the United States would be prepared to accept retrocession.

Where the needs and circumstances indicate it is appro-

priate, Congress intended by its language in §1323(a) con-

cerning retrocession of “all or any measure” of jurisdiction

to allow for piecemeal assumption or cession of jurisdiction.®

federal law . . . .” 114 Cong. Rec. 9111, 90th Cong., 2d Sess., April 4, 1968 (re-

marks of Congressman Ben Reifel).

Senator McGovern testified at hearings on the predecessor to the 1968 Act

that he supported it “as an extension of a great principle of democratic govern-

ment—that the leaders must obtain the consent of those governed.” Hearings

on S. 966 Before the Subcomm. on Constitutional Rights of the Senate Comm.

on the Judiciary, 89th Cong., 1st Sess. at 16 (1965).

3Based upon hearings stressing the value of consultation and consent of Indians

affected by a shift in jurisdiction, Senator Ervin modified the predecessor to 25

US.C. § 1323(a) (S. 966, 89th Cong., Ist Sess., § 3(a) (1965)) to allow for

piecemeal retrocession in order to adjust the administration of justice to reflect

the desires of those affected. S. 1843, 90th Cong., 2d Sess., § 303(a) (1968).

Ske bait le ahs Mitbse EAA

6

This is in contrast to an “all or nothing” choice between

blanket state jurisdiction in Indian country or none at all

which the Nebraska Supreme Court would impose upon the

federal government. Cf. Kennerly v. District Court, supra

atn. 6.

The requirement that the Secretary have discretion to

act is particularly compelling in light of his affirmative duty

as a fiduciary to act in the best interests of the Indian tribe

and to protect and foster the interest of tribal self-govern-

ment and Indian self-determination. Williams v. Lee, 358

U.S. 217 (1959); Seminole Nation v. United States, 316

U.S. 286 (1941). The United States has an obligation to

safeguard the valid interests of Indian tribes. Seminole Na- -

tion v. United States, supra; Menominee Tribe v. United

States, 101 Ct. Cls. 10 (1944).

If the Secretary cannot take into account the views of

the Indians wko are affected when making decisions con-

cerning jurisdiction over Indian lands, he has no discretion

at all.’

By interpolating contract principles into 25 U.S.C.

§1323(a), the court below has attempted to deny the Exec-

utive even the most basic authority — the ability to take

into account the will of Indian tribes in accepting or reject-

ing retrocessions of jurisdiction. Not only does it require a

perversion of the intent of Congress to construe the statute

in this rigid manner, it ignores the often repeated principle

that in construing statutes affecting Indians, any doubts

should be resolved in favor of the Indians. E.g., Alaska

4Congress was fully aware of the fact that the Secretary of the Interior was in-

clined to seek consent of the Indians affected before any retrocession took place.

“We believe also that both the tribe and the Federal Government should consent

to any retrocession of jurisdiction . . . .” Letter from Frank J. Barry, Acting Sec-

196s) the Interior, to Senator Eastland, Hearings on S. 966, supra at 321

7

Pacific Fisheries v. United States, 248 U.S. 78 (1918);

United States v. Celestine, 215 US. 278 (1909).

2. Review by this court is needed to resolve the jurisdic-

tional chaos on the Omaha Indian Reservation.

The decision of the Nebraska Supreme Court confuses

the present jurisdictional status of the Omaha Indian Reser-

vation to the detriment of its residents. This court is the

appropriate forum to unravel the confusion and ascertain

whether the State of Nebraska or the United States has

jurisdiction over offenses committed by or against Indians

on the Omaha Indian Reservation.

ee ee ee oe er ee ee eee oe eee

a ted id

8

CONCLUSION

The thirty-five years which petitioner Wayne Goham will

spend in prison may be multiplied by many other question-

able convictions of Indians under state law in Nebraska.

At the same time, because Indians on the Omaha Indian

Reservation question the state’s jurisdiction there, they are

being denied the full and effective protection of an impartial

law enforcement agency.

This situation can repeat itself as often as the Secretary

of the Interior accepts retrocessions of state jurisdiction for

any less than the full extent tendered by a state. Unless the

Secretary has discretion to refuse jurisdiction to the extent

that the affected Indians oppose it, based on their own cir-

cumstances, he will be unable to Carry out the intent of

Congress and his duty as a fiduciary to the Indians. That

Indians should have a meaningful voice in the determination

of jurisdiction over them was written into the law. It is fair

to say that it was a prime motive for enacting Public Law

90-284 in 1968.

Respectfully submitted,

Native American Rights Fund

By David H. Getches

Counsel for Amicus Curiae

FRANC aad ite 208 eS 8 OSE me Dob ao CNN MAE ara SNe REESE

BRIEF FOR |

/ RESPONDENTS

— iN |

OPPOSITION

baie ee ee

SUPRE:..= COURT, U. S.

Supreme Court, ~~ v

FILE

NOV 24 1971

In The

ROBERT sence Ore

E. ROBERT 3:

— Court of the Huited States

October Term, 1971

ral

Vv

No. 71-29%

WAYNE GOHAM and DENNIS TYNDALL, [

Petitioners,

STATE OF NEBRASKA, f

Respondent.

On Petition for a Writ of Certiorari to the :

Supreme Court of Nebraska :

0 .

;

BRIEF FOR RESPONDENT IN OPPOSITION

0 é

CLARENCE A. H. MEYER, i

Attorney General of Nebraska

RALPH H. GILLAN,

Assistant Attorney General of Nebraska

2119 State Capitol Building i

Lincoln, Nebraska 68509

Attorneys for Respondent.

COCKLE PRINTING CO., 1822 St. Mary's Ave.,

Omaha

INDEX

Pages

Opinions Below . ]

Jurisdiction dnesthpahiestineoesebe Na Be LSI Sect OED

Questions Presented — 0, 2

Resolutions, Statutes and Regulations Involved .... . 2

Statement of the Case inane . 8

Argument:

Il. Effect of Partial Acceptance, ........ ead ao

I]. Effect of Retrocession on Pending Cases. 000.6

IT. Is this Case the Proper One for This Court to

Decide the Issues Involved? ti

ENN nn TD Fe eT eRe Lee Pe 9

CASES CITED

Anderson v. Gladden, 293 F. 2d 463 (9th Cireuit 1961)

~~?

In Re Contest Proceedings, 31 Neb. 262, 47 N. W.

NEE Ae Ai Pa Te Bt pieiiniapanatiiidadtitie scl.

State v. Goham, 187 Neb. 35, 187 N. W. 2d 305 ps ye

State v. Tyndall, 187 Neb. 48, 187 N. W. 2d 298 1,8

STATUTES CITED

Section 49-801, Re RLS. 1943 nents »

Pow ares

il

TEXTS CITED

2% U.S.C. A; § 1323 ; 7 2,4

if U.S.C. A. 61162 . 4, 6

Assimilative Crimes Act, 18 U.S.C. NL 8 V3 oo cecccceeseceesee 6

Article IV, Section 15 of the Nebraska Constitution. .....3, 8

In The

Supreme Court of the Ruited States

October Term, 1971

—O

No. 71-293

WAYNE GOHAM and DENNIS TYNDALL,

Petitioners,

VS.

STATE OF NEBRASKA,

Respondent.

ray

Vv

On Petition for a Writ of Certiorari to the

Supreme Court of Nebraska

ra)

Uv

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinions of the Supreme Court of Nebraska in

State v. Goham, 187 Neb. 35, 187 N. W. 2d 305, and State

v. Tyndall, 187 Neb. 48, 187 N. W. 2d 298, are appended

to the petition filed herein.

>)

JURISDICTION

The jurisdictional requisites are set forth in the pe-

tition.

QUESTIONS PRESENTED

1. Whether the action of the Secretary of the In-

terior in purporting to accept a different measure of

retrocession of criminal jurisdiction over Indians in

Thurston County than that offered by the Nebraska Legis-

lature constituted a valid acceptance, as contemplated by

24 U.S.C. A. § 1323?

2. If the attempted acceptance of a measure of retro-

cession was valid, whether the retrocession operated to

divest the Nebraska Courts of jurisdiction over pending

cases?

3. Whether this case is a proper one for this Court

to decide the v;. ‘iy and effect of the purperted retro-

cession?

i)

RESOLUTIONS, STATUTES AND

REGULATIONS INVOLVED

In addition to the material contained in this section

of the petition, we also call the Court’s attention to See-

tion 49-301, R. R.S. 1943, which provides:

‘‘Whenever a statute shall be repealed, such re-

peal shall in no manner affect pending actions founded

thereon, nor causes of action not in suit that accrued

.

prior to any such repeal, except as may be provided

in such repealing statute.”

Article IV, Section 15 of the Nebraska Constitution

provides in part:

‘*Kivery bill passed by the Legislature, before it

becomes a law, and every order, resolution or vote

to which the concurrence of both Houses may be neces-

sary (except on questions of adjournment) shall be

presented to the Governor. If he approves he shall

sign it, and thereupon it shall become a law, but if he

do not approve, he shall return it with his objec-

tions to the House in which it shall have originated,

which House shall enter the objections at large upon

its journal, and proceed to reconsider the bill. If

then three-fifths of the members elected agree to pass

the same, it shall be sent, together with the objections,

to the other House, by which it shall likewise be re-

considered; and if approved by three-fifths of the

members elected to that House, it shall become a law,

notwithstanding the objections of the Governor. * * *.’’

STATEMENT OF THE CASE

Respondent in general accepts petitioners’ statement

of the case but points out that the conclusion of the Ne-

braska Supreme Court that retrocession had not taken

place was based upon its decision that the offer of retro-

cession had not been validly accepted, and therefore Ne-

braska had never lost jurisdiction. The withdrawal of

the offer of retrocession operated oniy to prevent a later

acceptance, and the Court did not treat it as operating to

regain jurisdiction temporarily lost. The withdrawal of

the offer of retrocession therefore has no, direct bearing

on the case, except that it shows what the intention of the

Legislature was in making the offer.

o

ARGUMENT

I.

Effect of Partial Acceptance

18 U.S.C. A. § 1162, adopted in 1953, gave Nebraska

exclusive criminal jurisdiction over all Indian country

within the state. 25 U.S.C. A. § 1323, adopted in 1968,

authorized the United States to accept a retrocession by

any state of all or any measure of the criminal or civil

jurisdiction, or both, acquired by such state pursuant to

Section 1162 of Title 18. The 1968 Act clearly contem-

plates an offer of retrocession by the state, and an ac-

ceptance of the offer by the United States. The appli-

eability to this situation of contract law is immediately

apparent. The decision to offer retroeession in the first

instance is solely that of the state. Many factors go into

that decision, including the safety of citizens of the state,

the maintenance of law and order, and the expenses in-

volved.

The 1968 Act specifically provides fer retrocession

of less than all of the jurisdiction acquired by the 1953

Act. We believe, as did the Nebraska Supreme Court,

that the language of the 1968 Act contemplated that the

decision as to the extent of the retrocession was to be

made by the state, and the United States then had the

option to accept or reject the proffered retrocession. Peti-

tioners, on the other hand, take the position that the

United States ean, without the consent of the state, accept

so much of the offered retrocession as it cares to, and

refuse the balance.

We will not become engaged in a long argument in-

volving sentence structure in analyzing the 1968 Act, al-

though we believe the sentence, from a purely grammati-

cal standpoint, indicates that the United States has the

right to accept the offer, but that the offer should desig-

nate the measure of the retrocession. In any event, wholly

aside from the question of sentence structure, it is obvious

that, in order to intelligently decide whether to make an

offer of retrocession, the Legislature must have the right

to decide the extent thereof. As we pointed out above,

many considerations go into a decisicn to retrocede juris-

diction. One of the big considerations, of course, is cost.

A partial retention of jurisdiction may cost as much as

complete retention, and be much more chaotic and confus-

ing. Yet, petitioners would say that the state has no con-

trol over the situation, and once it makes an offer, the

United States can make a partial acceptance, and leave

the state in an undesirable, or even intolerable situation.

In State vr. Goham, the Nebraska Supreme Court said that

the difficulties in attempting to exercise jurisdiction in

only a part of the Indian territory in the county was so

patent as not to need elaboration.

The Nebraska Supreme Court has construed the reso-

lution of retrocession as not being an offer of partial

retrocession, and the Legislature, in its 1971 resolution,

specifically said that the aeceptance was not in accordance

Ae Sale Boe Gna eee quangiamie

sin ae Bo tenes

a ai at

6

with the terms and provisions of the original resolution.

So far as a construction of the meaning of the 1969 reso-

lution is concerned, the decision of the Nebraska Supreme

Court should be binding.

IT.

Effect of Retrocession on Pending Cases

Since the Nebraska Supreme (Court held that retro-

cession had never become effective, it did not reach the

question of whether retrocession would operate to divest

the Nebraska Courts of jurisdiction over cases pending

at the time of acceptance. However, in order to grant

petitioners any relief, this Court would have to reach this

question and reach a truly monstrous result. We say this

because a decision by this Court that Nebraska lost juris-

diction of pending cases would, without question, result

in complete immunity to the petitioners.

We believe it is well settled that 18 U.S.C. A. § 1162,

gave the State of Nebraska exclusive criminal jurisdiction

over Indian country in this state. See, Anderson v. Glad-

den, 293 F. 2d 463 (9th Cireuit, 1961). At the time the

crimes of which petitioners were convicted were com-

mitted, no federal statute covered these crimes at that

place. The Assimilative Crimes Act, 18 U.S.C. A. § 13,

is not applicable, because it applies only to places under

the exclusive or concurrent jurisdiction of the United

States, and this was under the exclusive jurisdiction of

Nebraska.

There having been no federal statute applicable to

these crimes at the place and time they were committed,

any construction of the federal act or the Nebraska reso-

lution, the effect of which would be to confer jurisdiction

on the Federal Courts, or to make federal statutes ap-

plicable, would be patently ex post facto. Petitioners could

therefore never be prosecuted for these crimes anywhere.

Yet this is the result inherent in petitioners’ claim of loss

of jurisdiction over pending cases, and loss of jurisdic-

tion over pending casex is vital to petitioners’ case. Other-

wise, the question of retrocession is entirely moot, so far

as petitioners are concerned.

Petitioners cite some cases involving civil actions,

in which jurisdiction has been taken away from one

tribunal and given to another. These cases are not at

all in point, because in civil cases, jurisdiction can be

given to another tribunal, or even to another sovereignty.

Here there is no question of taking jurisdiction from Ne-

braska Courts and giving it to the Federal Courts. It is

simply a question of taking jurisdiction from the only

Court which could exercise it, and granting complete im-

munity to the criminals, no matter how heinous the erime.

We submit that, as a matter of legislative construction,

such a result should be reached only where the legislative

intent is clear and unequivocal. .

Furthermore, the construction of the intent of the

Legislature in passing the retrocession resolution should

be for the Nebraska Supreme Court, not this Court. Also,

Nebraska statutes should be considered in establishing the

intent. While not strictly applicable, Seetion 49-301,

R. R.S. 1943, is indicative of Nebraska’s attitude with re-

spect to the effect of legislation on pending actions. It

provides :

Wace’ pate d Serine

Ss

‘*Whenever a statute shall be repealed, such re-

peal shall in no manner affect pending actions founded

thereon, nor causes of action not in suit that acerued

prior to any such repeal, except as may be provided

in such repealing statute.”’

III.

Is This Case the Proper One for This Court to

Decide the Issues Involved?

The Federal Courts, and perhaps ultimately this

Court, will decide the effect of the attempt of the Seere-

tary of the Interior to partially accept retrocession, and

also, if the acceptance was effective, its effect upon pend-

ing cases. We submit, however, that the record in the

Court below is not such that this Court should grant cer-

tiorari at this time.

As petitioners have pointed out in their petition, the

Omaha Tribe of Nebraska has filed suit in the United

States District Court for the District of Nebraska seek-

ing a determination of the effect of the Secretary of the

Interior’s attempted acceptance. Furthermore, the peti-

tioners herein, together with two other Omaha Indians,

have filed an action in the United States District Court,

seeking a declaratory judgment that the Nebraska Courts

have no further jurisdiction over pending criminal com-

plaints against them, and for an injunction against further

prosecution.

In these cases pending in the United States District

Court, an additional fact has come to light which was not

known at the time of the Goham and Tyndall decisions

in the Nebraska Supreme Court, and was therefore not

considered by that Court. Article IV, Section 15 of the

PREIS AN vines

Nebraska Constitution requires bills and resolutions

passed by the Legislature to be presented to the Governor

for his approval or veto. If he vetoes it, it may be passed

over his veto by a three-fifths vote. Neither the retro-

cession resolution nor the resolution withdrawing retro-

cession was presented to the Governor for his approval.

The Nebraska Supreme Court has held in Jn Re Contest

Proceedings, 31 Neb. 262, 47 N. W. 923, that a resolu-

tion not presented to the Governor for his approval was

invalid, under the above constitutional provision.

The State of Nebraska is therefore taking the posi-

tion in both of the cases now pending in the United States

District Court that the original retrocession resolution

was void, under Nebraska law, because it was not pre-

sented to the Governor. That issue should be decided

befere this Court considers the matter. To grant cer-

tiorari now, in this case, and resolve the issues favorably

to the petitioners, could only create chaos if the lower

courts later decide the retrocession resolution was not

valid in the first place.

CONCLUSION

We submit that the Nebraska Supreme Court’s deci-

sion was correct in holding that the offer of retrocession

was never validly accepted by the United States. If we

are incorrect in this, the petitioners are still entitled to no

relief unless the retrocession can be construed as divest-

ing the Nebraska Court of jurisdiction over pending cases,

Ww

Which issue has not been considered by the Nebraska Su-

preme Court. These issues, as well as the issue of the

effect of the failure to present the resolution to the Gov-

e:nor, are now being considered by the United States

District Court. It would be most inappropriate for this

Court to grant certiorari at this time.

Respectfully submitted,

CLARENCE A. H. MEYER, ar

Attorney General of Nebraska Ss

RALPH H. GILLAN,

Assistant Attorney General of Nebraska

2119 State Capitol Building

Lincoln, Nebraska 68509

Attorneys for Respondent.