Opposition Brief — Daugaard v. Yankton Sioux Tribe

* @@ Ox:

Nos. 10-929, 10-931, AND 10-932

Hn the Supreme Court of the United States

DENNIS DAUGAARD, GOVERNOR OF SOUTH DAKOTA, AND

MARTY J. JACKLEY, ATTORNEY GENERAL OF SOUTH DAKOTA,

Petitioners

Vv.

YANKTON SIOUX TRIBE AND UNITED STATES OF AMERICA,

Respondents

SOUTHERN MISSOURI RECYCLING AND WASTE MANAGEMENT

DISTRICT,

Petitioner

ie

YANKTON SIOUX TRIBE AND UNITED STATES OF AMERICA,

Respondents

PAM HEIN, CHARLES MIX COUNTY STATE’S ATTORNEY, ET AL.,

Petitioners

Vv.

YANKTON SIOUX TRIBE AND UNITED STATES OF AMERICA,

Respondents

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

DARYL L. JOSEFFER PAUL D. CLEMENT

CANDICE CHIU Counsel of Record

KING & SPALDING LLP BANCROFT PLLC

1700 Pennsylvania Ave., NW 1919M St. NW, Suite 470

Washington, DC 20006 Washington, DC 20036

(202) 737-0500 pclement@bancroftpllc.com

(202) 234-0090

Counsel for Respondent Yankton Sioux Tribe

May 9, 2011 * additional counsel listed on inside cover

RICHARD A. GUEST

NATIVE AMERICAN RIGHTS FUND

1514 P Street NW

Suite D

Washington, DC 20005

(202) 785-4166

CHARLES ABOUREZK

ABOUREZK & ZEPHIER, P.'

P.O. Box 9460

2020 W. Omaha Street

Rapid City, SD 57709

(605) 342-0097

QUESTION PRESENTE!

Whether Congress manifested a

plain’ intent to disestablish the Yankt

feservation <« ompletely mm LROA

PARTIES TO THE PROCEEDING

Petitioners are Dennis Daugaard, Governor of

South Dakota; Marty J. Jackley, Attorney General of

South Dakota; Southern Missouri Recycling and

Waste Management District; Pam Hein, State's

Attorney of Charles Mix County; Keith Mushitz,

Member of the Charles Mix County, South Dakota,

County Commission; Neil Von Eschen, Member of

the Charles Mix County, South Dakota, County

Commission; and Jack Soulek, Member of the

Charles Mix County, South Dakota, County

Commission

Respondents are the Yankton Sioux Tribe and

» United States of America

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT.

A Historical Background

B Procedural Background..

REASONS FOR DENYING THE WRIT

I The Court of Appeals Apphed Well

Established Legal Principles To The

Facts Of This Case....

It. There Is No Spht In Authority

Warranting This Court’s Intervention

\. There Is No Conflict With Supreme

Court Precedent.

B. There Is No Conflict Within The

Mighth Circuit .....

There Is No Clear Conflict With T!

South Dakota Supreme Court

Il. The Decision Below Lacks Exceptional

Importance .

CONCLUSION

TABLE OF AUTHORITIES

Cases

Alaska v. Native Vill. of Venetie Tribal Govt,

SSS USS. OD CRS nis -cnnncdcaseeneenee ae wey.

Atkinson Trading Co., Inc. v. Shirley,

532 U.S. 645 (2001) ane ee 2

Black v. Cutter Labs.,

351 U.S. 292 (1956)... etc. 29

Brendale v. Confederated Tribes & Bands of

Yakima Indian Nation,

492 U.S. 408 (1989).... (secaletaaanic aa

Bruguter v. Class,

599 N.W.2d 364 (S.D. 1999) . om) er

DeCoteau v. District County Court,

420 U.S. 420 CID TG xis «ccldsvnaeee scaessanccusk Oy ay aa

Graver Tank & Mfg. Co. v. Linde Air Prods.

Co., 336 US. 271 (14949) .....--. a 7 ee

Hagen v. Utah,

510 U.S. 399 (1994) mre ey

Mattz v. Arnett,

412 U.S. 461 (297 3).....2c.. PEI rE ere!

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999)............ | «ictm. ae

Montana v. United States,

450 U.S. 544 (1981)... coccccceccecceccecceeee 26, 27, 30

Okla. Tax Comm'n v. Chickasaw Nation.

515 U.S. 460 (1965)... eee ae

_eae!

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”

é J 4

me oe] ao) we ba

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INTRODUCTION

Following a decade and a half of litigation, this

case 1s now reduced to a fact-bound, splitless dispute

that concerns only about 37,000 acres of the original

Yankton Sioux Reservation and that has far less

practical or legal significance than _ petitioners

suggest. Thirteen years ago, this Court held that

Congress “diminished” the Yankton Sioux Tribe’s

reservation in 1894 by removing 168,000 acres from

the 430,405-acre reservation. The Court further

emphasized that multiple provisions of the 1894 Act

evidenced Congress’s expectation that the Tribe

would continue to have a diminished reservation.

On remand, petitioners nonetheless advanced

the extreme position that the 1894 Congress

intended to disestablish the reservation completely.

After exhaustively reviewing the historical record,

the district court and the Eighth Circuit both

concluded that Congress intended no such thing, and

this Court denied review of that fact-bound ruling of

both lower courts in 2000. There is no reason for a

different result now.

Only two things have changed since 2000. First,

the scope of the parties’ dispute has narrowed as the

lower courts have considered the reservation status

of various parcels of land, with the Eighth Circuit

recognizing just 37,000 of the original 430,405 acres

as reservation. Second, realities on the ground have

adjusted to the existence of a limited reservation,

with the Tribe and other governmental officials

cooperating to handle criminal law enforcement and

other matters. Thus, practical experience over the

past decade has only confirmed that the fact-bound

z

question presented, which implicates no clear split in

authority, is not so exceptionally important as to

warrant this Court’s review.

Indeed, all parties appear to agree that the

approximately 37,000 acres now at issue are “Indian

country’ whether or not they are also reservation

lands. Because jurisdiction generally turns on

whether land is Indian country, not whether it is

also reservation, the question presented has

relatively few practical consequences. While the

continued existence of a reservation of any size has

profound cultural significance to the Yankton Sioux

Tribe, whose sovereign existence has been under

siege in the courts for over a decade, it lacks

exceptional importance for those outside the Tribe.

In addition to failing to account for the Indian

country status of the affected lands, petitioners’

arguments ignore the strict lhmits this Court has

imposed on Indian authority over non-Indians in

Indian country of any kind. Petitioners and their

amict also focus on lands the Eighth Circuit

pointedly did not hold to be reservation or other

Indian country. Those strained efforts only

underscore that the fact-bound question presented

lacks any actual exceptional importance. And this

Court need not speculate on that point; the

experience of the past decade provides the best

guide. Revisiting the question now would only

destabilize the practical accommodations reached

over the last decade.

3

STATEMENT

A. Historical Background

1. In 1858, the Yankton Sioux Tribe and the

United States entered into a_ treaty which

established the original boundaries of the Yankton

Sioux Reservation and set aside a homeland for the

Tribe and its members. Pet. App. 324.! The Tribe

ceded to the United States title to more than 11

million acres of its aboriginal lands, and retained

430,405 acres in what is today Charles Mix County,

South Dakota, as its reservation. See id. at 325.

2. Three decades later, Congress enacted the

General Allotment Act of 1887, also known as the

Dawes Act, ch. 119, 24 Stat. 388, repealed in part,

Pub. L. 106-462, § 106, 114 Stat. 1991, 2007 (2000).

That Act adopted a federal policy of breaking up

Indian reservations into smaller pieces, and

eventually opening them up for settlement by non-

Indians, through the “allotment” of reservation

parcels to individual Tribe members. The United

States was to hold each allotted parcel in trust “for

the sole use and benefit of the Indian [allottee]” for

25 years; after that time, the Tribe member would

assume fee simple ownership of the parcel and could

freely alienate it. 24 Stat. at 389. The Dawes Act

further authorized the Executive Branch _ to

“negotiate” with the Tribe to purchase, “in

conformity with the treaty or statute under which

—_— a ——— a

'“Pet. App.” refers to the appendix to the petition for certiorari

in No. 10-929.

4

such reservation is held,” the unallotted portions of

the reservation on “just and equitable” terms. Jd.

The United States allotted over three-fifths of

the 1858 Yankton Sioux Reservation under the

Dawes Act in a_-= patchwork of = scattered,

noncontiguous parcels. That left approximately two-

fifths of the reservation lands — 168,000 acres —

unallotted.

In 1894, the United States reached an

agreement with the Tribe, which Congress ratified in

the Act of August 15, 1894 (“1894 Act”), ch. 290, 28

Stat. 286, 319, to purchase those unallotted acres for

$600,000. See Pet. App. 337-351. A bare majority of

the Tribe — 254 out of 458 signatories — ultimately

consented to the sale, which whittled down the

430,405-acre reservation to approximately 262,300

acres of non-ceded, allotted lands.

The federal Commissioners who negotiated for

the sale made clear that their specific objective was

to arrange the purchase of the unallotted lands —

and those alone. Id. at 232. They informed the

Tribe that the government “only wants you to sell

your surplus lands for which you have no use.” Jd.

at 222. The Commissioners then reported to

Congress that the Yankton Sioux Indians “were not

selling their whole reservation, but less than two-

fifths of it,” because “more than three-fifths of it

would remain in their possession for such cultivation

and improvement as Indians will give to it.” Id. at

236. In negotiations with the Tribe, the

Commissioners had also made numerous references

to a “continuing tribal government.” Id. at 233. The

Commissioners further suggested that the Tribe

5

might “have this reservation organized as a separate

county.” Id.

The 1894 Act provided for the sale of the

168,000 acres of unallotted lands for payment of a

sum certain. Jd. at 229. Article XVIII declared that

“{nlothing in this agreement shall be construed to

abrogate” the 1858 Treaty establishing the Yankton

Sioux Reservation. Jd. at 347. Article XVII barred

alcohol sales on “the lands ... ceded and sold to the

United States” and “any other lands within or

comprising the reservation of the Yankton Sioux.”

Id.

Other articles provided for ongoing tribal affairs

on the reservation. Article V of the Act provided

that certain funds be set aside for, inter alia,

“schools and educational purposes,” “courts of

justice,” and “other local institutions” of the Tribe.

Id. at 341. Article VIII required the United States to

set aside from white settlement 1,000 acres for

“agency, schools, and other purposes” for the support

of the Tribe. Jd. at 342-343.

3. By the early twentieth century, the issuance

of fee patents, often well before the 25-year trust

period had expired, “left many Indians landless” and

impoverished. Jd. at 11. The federal government

also acknowledged that its policy of encouraging

assimilation had failed in lhght of the Indians’

“cultural resilience.” Jd. The government therefore

extended, re-extended, and then permanently

extended the 25-year trust periods on parcels of the

Yankton Sioux Reservation that it had continuously

held in trust. See id. at 10 (citing Exec. Order No.

2363, Apr. 20, 1916; Exec. Order No. 4406, Mar. 30,

6

1926; Exec. Order No. 5173, Aug. 9, 1929); 25 U.S.C.

§ 462. In 1929, rather than opening the 1,000 acres

of reserved agency trust lands to non-Indian settlers,

Congress returned the lands to the Tribe and

specifically prohibited their allotment. See Act of

February 13, 1929, ch. 183, 45 Stat. 1167.

The Indian Reorganization Act of 1934 (“IRA”),

ch. 576, 48 Stat. 984 (codified as amended at 25

U.S.C. §§ 461 et seq.), put an end to further

allotment and extended the trust periods for

outstanding allotments indefinitely. The IRA also

authorized the Secretary of the Interior to acquire

additional lands in trust for Indians and Indian

tribes. Under the IRA, the federal government has

taken nearly 6,500 acres into trust for the benefit of

the Yankton Sioux Tribe. Pet. App. 12.

B. Procedural Background

1. This litigation began when the Yankton

Sioux Tribe, faced with imminent construction of a

waste site on land within the original 1858

boundaries of the reservation, sought to ensure that

federal environmental regulations would apply to

the site. What began as a modest effort by the Tribe

to respond to an unlined landfill transmogrified into

litigation posing an existential threat to the Yankton

Sioux Reservation.

The dispute reached this Court in South Dakota

v. Yankton Sioux Tribe, 522 U.S. 329 (1998). This

Court held that the Tribe’s agreement to cede

168,000 acres of their unallotted lands to the United

States in 1894 had “diminished” the original 1858

reservation. See id. at 345. The Court then

concluded that, because: the proposed waste site lay

7

on ceded unallotted land, it was not within the

boundaries of the diminished reservation and

therefore not subject to federal environmental

regulation. Jd. at 340, 358.

This Court expressly declined to reach the

broader question whether the 1894 Act had

“disestablished” the Yankton Sioux Reservation in

its entirety. Jd. at 358. The Court noted, however,

that some clauses of the 1894 Act “contradict[ed]”

and “counselfed] against finding the reservation

terminated.” Jd. at 350. Specifically, the Court

observed that it was “difficult to imagine” why

Congress would have reserved agency trust lands for

tribal use “if it did not anticipate that the opened

area would remain part of the reservation.” Jd.

(quoting Solem v. Bartlett, 465 U.S. 463, 474 (1984)).

The Court further noted that Article XVII’s

prohibition against the sale of liquor on ceded lands

and other lands within the reservation “signalfed] a

jurisdictional distinction between reservation and

ceded land.” Jd.

z. On remand, and after the case was

consolidated with another one concerning the

reservation’s boundaries, the district court conducted

an evidentiary hearing. Based on the evidence, the

district court concluded that the 1894 Act

diminished the reservation only to the extent of the

unallotted lands the Tribe had ceded to the United

States in 1894. See Pet. App. 250-320. The court

reasoned that nothing in the language of the

agreement supported total disestablishment of the

reservation, whereas’ several articles’ strongly

indicated that a diminished reservation would

persist. See id. at 287-304.

>

8

The district court also relied on the context of

the Act. Reports of the government’s negotiations

with the Tribe, the court observed, “memorialized

only the consent of the Tribe to sell the surplus

[unallotted] lands”; they did not discuss total

disestablishment or further diminishment beyond

the unallotted lands. /d. at 276. Representations by

the Commissioners who negotiated the agreement

further suggested that the Tribe would retain

independent powers of self-government over the

lands it did not cede. See id. at 276-281. Based on

that evidence, the court concluded that the Yankton

Sioux Reservation consists, in diminished form, of all

land “within the original exterior 1858 Treaty

boundaries” that the Tribe did not cede to the United

States in the 1894 Act, as well as the agency trust

land that the Act specifically reserved from sale. Id.

at 316.

3. The Eighth Circuit affirmed in part, reversed

in part, and remanded for further proceedings. See

id. at 199-249. The court of appeals agreed that the

1894 Act did not disestablish the Yankton Sioux

Reservation. Jd. at 237-243. At a bare minimum,

the Eighth Circuit noted, the agency trust lands,

which this Court had specifically highlighted in

Yankton, remain part of the reservation. Jd. at 241.

The court of appeals disagreed, however, with the

Tribe’s argument that the original reservation had

been diminished only with respect to the ceded,

unallotted lands. Rather, the court found the

reservation further diminished by subsequent sales

of allotted lands to non-Indians — lands that,

according to the court, the 1894 Congress “foresaw

9

would pass into the hands of the white settlers and

homesteaders.” Id. at 243.

4. Both the State and the Tribe sought

certiorari. The State maintained its __ total

disestablishment position and the Tribe maintained

the position on which it had prevailed in the district

court — namely, that the reservation had not been

further diminished by sales of allotted lands to non

Indians. The United States “agree[{d] with the Tribe”

that the reservation had _ not’ been _ further

diminished. U.S. Br. in Opp. (Nos. 99-1490, 99-1683)

at 21. The United States opposed certiorari,

however, noting the absence of a clear split in

authority and the interlocutory posture of the case.

This Court denied review. See South Dakota v.

Yankton Sioux Tribe, 530 U.S. 1261 (2000).

5. On remand, the district court determined

that various parcels within the original 1858

boundaries maintained reservation’§ status: (1)

agency trust lands reserved to the United States in

the 1894 Act, then returned to the Tribe in 1929; (2)

lands allotted to individual Indians that remain in

trust today; (3) lands additionally taken into trust

under the 1934 IRA; and (4) lands allotted to

individual Indians that are still owned in fee by

Tribe members but not held in trust. See Pet. App.

122-163. The district court again rejected the

defendants’ claim that Congress had disestablished

the Yankton Sioux Reservation in its entirety. Jd. at

127-128.

6. The Eighth Circuit largely affirmed. See id.

at 1-51. The court of appeals held that the

diminished reservation included (1) agency trust

10

lands, (2) allotted lands that remain in trust, and (3)

lands taken into trust under the 1934 IRA. /d. at 51.

The court found further that nearly 175 acres of

miscellaneous lands acquired in trust under

authorities other than the IRA qualify as dependent

Indian communities under the definition of “Indian

country” in 18 U.S.C. § 1151(b). 7d. at 42-43. But

the court of appeals vacated the district court’s

holding that allotted fee lands continuously owned

by Indians but not held in trust are also Indian

country, reasoning that the lack of a “fully developed

record” on such lands meant the issue was not ripe

for review. Id. at 46.

The court further acknowledged the defendants’

renewed efforts to declare the Yankton Sioux

Reservation disestablished, but noted that they had

offered “no persuasive reasons to revisit” or deem

“erroneous” the prior holding, which had been based

on “an exhaustive analysis of ... historical

materials.” Jd. at 21, 23; see also id. at 54.

The State and County defendants filed petitions

for rehearing and rehearing en_ banc. Again,

defendants renewed their total disestablishment

claim — which, the Eighth Circuit noted, they had

already “unsuccessfully pressed ... twice before the

district court ... and twice before this court,” and

each time had been “squarely rejected after thorough

study of the record and exhaustive consideration of

the precedents.” Jd. at 54, 61.

Defendants also took issue with two sentences in

a footnote of the court of appeals’ opinion to the

effect that former allotments within the original

boundaries of the reservation that were patented in

1]

fee after 1948 would have reservation status. The

Eighth Circuit issued a revised opinion with an

identical judgment that eliminated the footnote, and

criticized defendants for objecting to dicta on “issues

which the court did not decide and which are beyond

the scope of this litigation.” Jd. at 56.

REASONS FOR DENYING THE WRIT

I. The Court of Appeals Applied Well-

Established Legal Principles To The Facts

Of This Case.

The Enghth Circuit’s determination — that

Congress did not express a clear intent’ to

disestablish the Yankton Sioux Reservation in 1894

reflects a fact-bound application of established legal

standards to a detailed evidentiary record. That

fact-intensive determination, reflecting the

considered views of both lower courts, does not

warrant this Court’s review. See Sup. Ct. R. 10; cf.

Graver Tank & Mfg. Co. v. Linde Aur Prods. Co., 336

U.S. 271, 275 (1949) (this Court does not “review

concurrent findings of fact by two courts below in the

absence of a very obvious and exceptional showing of

error’).

The governing standards for disestablishment

are well-settled. This Court has adopted “a fairly

clean analytical structure” for analyzing

disestabhishment issues. Solem, 465 U.S. at 470.

The “first and governing principle” is that “only

Congress can divest a reservation of its land and

diminish its boundaries.” Jd. (emphasis added).

“Once a block of land is set aside for an Indian

reservation and no matter what happens to the title

of individual plots,” that whole block retains the

12

status of reservation “until Congress explicitly

indicates otherwise.” Jd. (emphasis added).

The Court, meanwhile, has emphasized time

and again that Congress’s intent to disestablish or

even diminish a reservation must be “clear and

plain,” United States v. Dion, 476 U.S. 734, 738

(1986), and cannot “be lightly inferred.” Solem, 465

U.S. at 470; see also Mattz v. Arnett, 412 U.S. 481,

504-05 (1973); United States v. Celestine, 215 U.S.

278, 285 (1909). Congressional intent “must be

expressed on the face of the Act or be clear from the

surrounding circumstances and legislative history.”

Matiz, 412 U.S. at 505; see also id. n.22 (giving

examples of Congress’s “clear language of express

termination when that result is desired”). Absent

such “substantial and compelling evidence,” the

“traditional solicitude for the Indian tribes” compels

a conclusion that the reservation survives. Solem,

465 U.S. at 472.

That determination, moreover, is uniquely fact-

bound. Each surplus land act that followed the

General Allotment Act must be construed in light of

“the circumstances underlying its passage.” Solem,

465 U.S. at 469. Thus, even when treaties with

different tribes contain comparable language, “the

historical record and ... context of the treaty

negotiations” may compel different outcomes.

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 202 (1999).

The Eighth Circuit applied those “standard

rules of interpretation” to the particular facts and

circumstances surrounding the surplus land act at

issue here. Pet. App. 228. To gauge Congress’s

13

intent, the court correctly looked to the “most

probative evidence” — the statutory language — as

well as “legislative history” and “events surrounding

the statute’s passage.” Id.; see also id. at 30-34, 221-

222, 224-243. And based on the extensive record

amassed by the parties, the Eighth Circuit, like the

district court, reasonably concluded that “[nJeither

the text of the 1894 Act nor evidence of the parties’

contemporaneous understandings clearly establish

an intent to disestablish the Yankton Sioux

Reservation.” Jd. at 241 (emphasis added); see also

id. at 32-34.

The Eighth Circuit, like the district court before

it, emphasized that the text of the 1894 Act

“refer|red] explicitly only to the ceded lands,” not to

any change in the status of other lands. /d. at 229

(emphasis added). Article V, moreover, required

that funds be set aside “[flor the care and

maintenance of such orphans, and aged, infirm, or

other helpless persons of the Yankton tribe,” “schools

and educational purposes,” “courts of justice,” and

“other local institutions,” rd. at 341 — suggesting “an

intent to preserve tribal self-government.” Jd. at

292. Article VIII required the United States to set

aside from white settlement 1,000 acres for “agency,

schools, and other purposes” for the support of the

Tribe — reflecting Congress’s expectation that the

federal government would continue to play a

significant role in providing “for the welfare of the

Tribe.” Jd. at 240, 342-343. And Article XVII, in

barring alcohol sales, specifically distinguished

between “lands ... ceded and sold to the United

States” and “any other lands within or comprising

the reservation|].”. /d. at 347. That distinction

14

would be incoherent unless Congress anticipated

that “lands ... comprising the reservation[]” would

continue to exist. All those articles, the Eighth

Circuit and district court concluded, establish

Congress's intent to preserve the reservation status

of at least some allotted lands.

Both the Eighth Circuit and the district court

further observed that the federal Commissioners

negotiating the agreement did not view their mission

as encompassing disestablishment of the

reservation. See id. at 232, 276. The Commissioners

reported to Congress that the Yankton Sioux Indians

“were not selling their whole reservation,” as “more

than three-fifths of it would remain in their

possession.” Jd. at 236. At a meeting with the Tribe,

Commissioner Cole declared that “the Great White

Father ... does not want you to sell your homes that

he has allotted to you. He wants you to keep your

homes forever.” Jd. at 216. The Commissioners even

suggested that the Tribe might have their

“reservation organized as a separate county.” Jd. at

233. Accordingly, the Commissioners did _ not

“mention any transfer of the Yanktons’ tribal

sovereignty,” and instead made numerous references

to a “continuing tribal government.” /d. at 233, 236.

As explained in the Conditional Cross-Petition,

the Tribe believes that the best reading of Congress's

intent is that the reservation was diminished only to

the extent of the ceded lands. See Conditional Cross-

Petition of Yankton Sioux Tribe, No. 10-1058. But

the evidence detailed above confirms that the one

position that is not reasonable is the one advocated

by petitioners — that Congress clearly intended to

disestablish the entire reservation. And in any

15

event, petitioners’ contrary arguments amount to no

more than a request for fact-bound error correction.

Il. There Is No Split In Authority Warranting

This Court’s Intervention.

The Eighth Circuit’s inherently fact-specific

assessment of this specific reservation implicates no

clear conflict in authority.

A. There Is No Conflict With Supreme

Court Precedent.

1. Petitioners strain to conjure a “conflict” with

this Court’s decision in South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329 (1998). See State Pet. 23-

26; County Pet. 24-27; District Pet. 13. County

petitioners, for example, assert that this Court “held

that the 1858. reservation boundaries’ were

disestablished in their entirety.” County Pet. 25.

This Court, of course, held no such thing. The Court

made crystal clear that it was not opining

definitively on “whether Congress disestablished the

reservation altogether.” 522 U.S. at 358.

This Court’s reasoning, however, strongly

suggested that the reservation was not

disestablished. The Court noted that certain

provisions of the Act “contradict{]” and “counsel]]

against finding the’ reservation terminated,”

including the provisions concerning agency lands

and alcohol discussed above. Id. at 350. The Court

concluded, for example, that it was “difficult to

imagine” why Congress would have reserved agency

trust lands for tribal use “if it did not anticipate that

16

the opened area would remain part of the

reservation.” Jd. (quoting Solem, 465 U.S. at 474).?

Indeed, the Court’s reasoning in finding a

diminishment depended in significant respects on

there not being a total disestablishment. Provisions

of the Act that referenced a continuing reservation

could be reconciled with a diminishment finding only

if a diminished reservation would continue to exist.

In other words, certain provisions of the Act were

distinguishable in Yankton on the ground that they

apphed to the portion of the reservation that

Congress was not disestablishing in 1894; but they

cannot be reconciled with petitioners’ position that

Congress was completely disestablishing' the

reservation.

Petitioners nonetheless accuse the Eighth

Circuit of disregarding a supposed “presumption of

diminishment/disestablishment.” County Pet. 22

(emphasis added); see also State Pet. 24. But

Yankton held only that the 1894 Act’s cession of the

unallotted acres for a sum certain led to a

“presumption of diminishment” as_ to those

unallotted acres, not that there was a further

presumption of total disestablishment of all

reservation lands. See 522 U.S. at 344 (“explicit

2 This Court certainly did not hold, as petitioners claim, that

the agency trust lands are not reservation lands. Petitioners

are correct that this Court held generally that the unallotted

lands are not reservation, but it recognized that the agency

trust lands (which had been unallotted) are different by

emphasizing that Congress must have intended that they

“would remain part of the reservation.” Yankton, 522 U.S. at

350

17

language of cession” and “fixed-sum payment” create

“presumption of diminishment’”); see also Hagen uv.

Utah, 510 U.S. 399, 411 (1994) (“statutory

expression of congressional intent to diminish” and

“sum certain payment” create “presumption that the

reservation had been diminished”).

Nor would a broader presumption make sense in

this case, where the Tribe ceded only 40% of its

reservation to the United States. The 1894

agreement to sell those unallotted lands for a sum

certain manifested an intent to divest those lands

from Indian sovereignty, and thus diminish the

reservation to that extent. But there is no basis for

presuming that Congress intended to _ further

diminish or totally disestablish the reservation with

respect to all of the other lands —- allotted lands

comprising a majority of the original reservation —

that the Tribe did not cede and for which it did not

receive a sum certain as payment. Cf. Pet. App. 213

(terms “diminishment” and “disestablishment” not

“interchangeablle]”; “disestablishment generally

refers to the relatively rare elimination of a

reservation while diminishment commonly refers to

the reduction in size”).

Z. Petitioners also assert a conflict with

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

(1975), where the Court found the Lake Traverse

Indian Reservation disestablished. See State Pet.

20-24; County Pet. 33-35; District Pet. 10. But their

claim that DeCoteau controls “[a]s night follows day,”

State Pet. 20, is telling. That premise “that similar

language in two Treaties involving different parties

has precisely the same meaning” is the very

‘

assumption that this Court has dismissed as “a

18

fundamental misunderstanding of basic principles of

treaty construction.” Mille Lacs, 526 U.S. at 202. As

the Court has consistently warned, analysis of

surplus land acts must be individualized based “on

the language of the act and the circumstances

underlying its passage.” Solem, 465 U.S. at 469.

This is a case in point. Any parallels between

the Yankton and Lake Traverse agreements do not

nullify the stark differences. In DeCoteau, “the face

of the Act,’ and its ‘surrounding circumstances’ and

‘legislative history, all pointfed] unmistakably’ to

disestablishment. 420 U.S. at 444-45 (emphasis

added). The tribe indicated with marked clarity that

the reservation would be terminated. See id. at 433-

34 (“We never thought to keep this reservation for

our lifetime.... We don’t expect to keep

reservation.”); id. at 435-436 n.16 (“This little

reservation ... was given us as a permanent home,

but now we have decided to sell”).

Here, by contrast, the courts’ “exhaustive

analysis” of the Yankton Sioux Tribe’s agreement

and the historical evidence uncovered no such

unmistakable signs. Pet. App. 23. The negotiating

Commissioners never “describe[d] any reservation

boundaries or mention[ed] any transfer of the

Yanktons’ tribal sovereignty.” Jd. at 236. Rather,

the Commissioners assured the Tribe that the

government “only wants you to sell your surplus

lands for which you have no use,” id. at 222, and

“wants you to keep your homes forever.” Jd. at 216.

They further suggested that the Tribe’s leaders

would “retain some governing powers” and might

“have this reservation organized as a separate

county.” Jd. at 233. Because the context, “content

19

and wording of the agreements are very different,”

id. at 221, the Eighth Circuit correctly distinguished

DeCoteau.

3. Finally, petitioners also suggest that the

Eighth Circuit’s analysis conflicts with this Court’s

decisions by not giving adequate consideration to

post-enactment history and tribal “land in common”

in assessing reservation status. See State Pet. 22,

24-25, 29-30. As this Court explained in Solem,

however, when post-enactment treatment is “rife

with contradictions and inconsistencies,” it is “of no

help to either side.” 465 U.S. at 478. And this Court

already determined that post-1894 understandings

of the Yankton Sioux Reservation have been

“conflicting,” “mixed,” and “inconsistent” at best.

Yankton, 522 U.S. at 354, 356, 358; see also id. at

354 & n.5 (noting that Congress in 1896 and even

the 1980s and 1990s still referred to the “Yankton

Indian Reservation”). Petitioners’ one-sided

portrayal of the post-enactment history is

misleading, and only underscores the fact-bound

nature of the question presented. See infra p.11-15.

Nor is the apparent lack of tribal ownership of

land immediately following the 1894 Act dispositive.

This Court stated in Solem that reservation status

was generally “coextensive with tribal ownership” at

the turn of the century. 465 U.S. at 468. But that

reference to “tribal ownership” is not limited to land

owned by a tribe qua tribe; instead, it reasonably

encompasses ownership of allotted parcels by

individual tribal members and tribal rights to use

and occupancy of agency trust lands, both of which

have always been present here. See Pet. App. 230.

And in any event, tribal retention of land in common

20

is at most one factor in the broader analysis of

congressional intent. See Yankton, 522 U.S. at 358

(“The conflicting understandings about the status of

the reservation, together with the fact that the Tribe

continues to own land in common, caution us ... to

limit our holding”) (emphasis added).

B. There Is No Conflict Within The Eighth

Circuit.

Petitioners next assert that the Eighth Circuit’s

decisions are “internally contradictory.” State Pet.

31. Even if that were true, which it is not, certiorari

would not be warranted because “[i]t is primarily the

task of a Court of Appeals to reconcile its internal

difficulties.” Wisniewski v. United States, 353 U.S.

901, 902 (1957). In any event, there are no “internal

difficulties” because the Eighth Circuit’s decisions

are fully consistent.

In Gaffey, the Eighth Circuit held that “lands

originally allotted to tribal members which have

passed out of Indian hands ... are not part of the

Yankton Sioux Reservation.” Pet. App. 247. The

court then held that other lands did remain part of

the reservation, though the court was not prepared

to “define the[ir] precise limits” on the scant record

at that time. Id. at 248-249. It therefore

“remand[ed] to the district court with instructions to

develop the record ... relevant to the status of the

remaining categories of land.” Jd. at 17. The Eighth

Circuit’s subsequent decisions in this case and the

companion Army Corps case are fully consistent with

Gaffey for the simple reason that they address issues

that Gaffey left open for remand.

21

Petitioners appear to assume that, because

private land sales cannot by themselves diminish a

reservation, total disestablishment is the only

possible explanation for Gaffey’s holding that lands

sold to non-Indians are no longer reservation. That

is clearly wrong because Gaffey expressly rejected

disestablishment before holding, in the same

opinion, that allotted lands sold to non-Indians are

no longer reservation. Id. at 247.

The Tribe, to be sure, disagrees with the Eighth

Circuit’s holding to that extent and believes that

Congress did not intend any further diminishment.

But that context-specific, fact-bound dispute does not

warrant further review. It certainly does not

warrant further review of petitioners’ extreme total

disestablishment position.

C. There Is No Clear Conflict With The

South Dakota Supreme Court.

Finally, the Eighth Circuit’s fact-intensive

decisions present no clear and intractable split with

decisions of the South Dakota Supreme Court, as the

Eighth Circuit itself concluded. Jd. at 23 n.7.

In Bruguter v. Class, 599 N.W.2d 364 (S.D.

1999), a tribal member defendant convicted on a

state burglary charge argued on habeas that the

state lacked jurisdiction because the offense took

place in “Indian country.” Jd. at 365. The South

Dakota Supreme Court held that the relevant parcel

was not “Indian country” and denied relief. Jd. at

378. The parties had stipulated that the offense took

place on allotted lands which had passed into non-

Indian ownership, and the court reasoned that such

lands do not have reservation status. See id. at 365

22

(“Here we must decide the status of allotted lands

which have passed into non-Indian ownership.”).

The Eighth Circuit has fully agreed with the

South Dakota Supreme Court on that point: “lands

originally allotted to tribal members which have

passed out of Indian hands ... are not part of the

Yankton Sioux Reservation and are no longer Indian

country.” Pet. App. 247. Although the South Dakota

Supreme Court’s opinion reached out to include the

broader rationale that the 1894 Act disestablished

the Yankton Sioux Reservation in its entirety, that

rationale was unnecessary to the decision of the

case, and thus, as the Eighth Circuit observed, it

does not present a square conflict. Jd. at 23 n.7.

This Court reviews conflicts in holdings, not in

unnecessary reasoning.

Moreover, the Eighth Circuit and the South

Dakota Supreme Court apparently agree that the

lands at issue in this case — various lands held in

trust for the tribal members — are “Indian country.”

Bruguier repeatedly noted, in reasoning that the

parcel at issue in that case was not “Indian country,”

that it was not “trust land.” 599 N.W. at 378; see

also id. at 367 (“none of [Pickstown] is now held ... in

trust”); ud. at 369 (“Congress must not have

considered Pickstown Indian country taken in trust

for the Yankton Tribe or its members”). Accordingly,

that court appeared to recognize that trust lands are

Indian country. And as_ explained below,

jurisdictional status generally turns on_ that

classification, not on whether land is also within a

reservation.

203

In this and every other reported case, therefore,

any difference in reasoning between the two courts

has no practical] effect. Petitioners’ inability to cite

any state or federal case over the past decade that

was affected by the supposed conflict confirms that

there is no meaningful, square conflict. And, in all

events, there 1s no more reason to review this issue

now than when this Court last denied certiorari.

The split has not deepened and this case remains

interlocutory even at this stage. See Pet. App. 45

(deeming status of former allotments continuously

held in fee by Indians to be not yet “ripe for

resolution”).

Il. The Decision Below Lacks Exceptional

Importance.

While the Eighth Circuit's decision has profound

cultural significance to the Yankton Sioux Tribe, it is

not exceptionally important from a practical or legal

standpoint.

1. At the outset, the territorial scope of the

parties’ dispute has narrowed dramatically over the

course of this litigation, including in the 11 years

since this Court denied review of the question

presented. In the decision below, the Kighth Circuit

upheld the reservation status of a mere 37,000 acres

approximately 8.5% of what was once a 430,405

acre reservation set aside as a homeland for the

Tribe under the 1858 Treaty. The diminished

reservation is located entirely within Charles Mix

County, whose population today totals

approximately 9,000 — over 30% (2,900) of which are

Indian. See 2010 Census Data, www.census.gov

Thus, from historical, territorial, and demographic

perspectives, the Erxghth Circuit’s holding that this

37,000-acre fraction remains part of the Yankton

Sioux Reservation raises issues of only limited

importance.

2. More importantly, even within those acres,

the nature of the jurisdictional dispute between

petitioners and the Tribe is narrow. As noted above,

the Eighth Circuit, the Supreme Court of South

Dakota, and the parties all agree that the allotted

lands continuously held in trust for the Tribe and its

members are “Indian country” under 18 U.S.C.

§ 1151. E.g., Pet. App. 226. Petitioners view the

lands as being Indian country within the meaning of

§ 115l(c), which covers “all Indian allotments, the

Indian titles to which have not been extinguished,

including rights-of-way running through the same.”

The Tribe views the lands as being Indian country

under both § 1151(c) and § 1151(a), which covers “all

land within the limits of any Indian reservation

under the jurisdiction of the United States

Government, notwithstanding the issuance of any

patent, and, including rights-of-way running

through the reservation.”*

3 The court of appeals separately addressed the status of

different categories of lands and in some instances gave

additional, contextual reasons for holding each to be Indian

country. For example, the court of appeals concluded that

lands taken into trust under the IRA are Indian country

whether or not they are aiso reservation, see Pet. App. 37, and

that certain other lands are “dependent Indian communities”

comprising Indian country under 18 U.S.C. § 1151(b). Pet

App. 159-60. The court thereby made clear that all of these

lands are Indian country whether or not they are reservation

or

209

For the ‘Tribe, the distinction between

“reservation” land and land that is “Indian country”

but not “reservation” land is vital to preserving the

Tribe’s cultural heritage. As the Eighth Circuit

recognized, “[w]hatever the size of the remaining

reservation lands,” the record reflects that those

lands hold “continuing relevance and importance to

the Yankton Sioux Tribe as a touchstone linking

tribal members with each other and with their

common culture, history, and heritage.” Pet. App.

14. The Indian character of these lands has

persisted since 1894, and the “population of Indians

living on and adjacent to the Yankton Sioux

Reservation” has actually “increased during the

1990's,” continuing to rise today. Jd. at 315.

The Indian population has fueled demands for

housing, elementary school education, and other

services. See U.S. Br., Gaffey, at 41 (quoting Tr. of

May 20, 1998 Evidentiary Hearing at 22, 72, 73, 76).

Further, the Tribe is the largest employer in the

county, assembling a workforce that is 75% Indian.

Id. at 42 (quoting Tr. 69). Thus, the successful

efforts of the Tribe to maintain a homeland for its

Those holdings are not within the scope of the question

presented, which asks only whether Congress completely

disestablished the reservation in 1894. See, e.g., State Pet. i.

Petitioners had good reason not to include those rulings

concerning specific categories of lands in the question

presented, because they are even less important and less

deserving of this Court’s review than petitioners’ total

disestablishment position. Thus, the practical importance of

the question presented is limited to the difference between

reservation and other types of Indian country — a distinction

that, as explained in the text, lacks exceptional importance

26

members, to preserve its cultural heritage, and to

protect its integrity and self-determination would be

thoroughly undermined by a finding that the

Yankton Sioux Reservation ceased to exist in 1894.

Apart from the cultural significance to the Tribe

of having a reservation, however, the distinction

between sub-provisions of Section 1151 lacks

practical significance in this case. Petitioners fail to

articulate any significant jurisdictional distinction

between lands within an Indian reservation and

other Indian country. Jurisdictional consequences

generally flow from whether land is “Indian

country,” not from whether it is “reservation” or 1s

Indian country for some other reason. See, e.g.,

Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S.

450, 453 n.2 (1995); Okla. Tax Comm'n v. Sac & Fox

Nation, 508 U.S. 114, 123 (1993); Okla. Tax Comm’n

v. Citizen Band Potawatomi Indian Tribe, 498 U.S.

505, 511 (1991); Alaska v. Native Vill. of Venetie

Tribal Gov't, 522 U.S. 520, 528-30 (1998).

The practical difference between Indian country

under § 1151(a) and § 1151(c) is that Indian country

under the former remains part of the reservation

even when sold to non-Indians, whereas Indian

country under the latter loses its Indian country

status upon any sale to a non-Indian going forward.

At this point in time, however, it is nearly

inconceivable that the Tribe would sell the

remaining acres at issue to non-Indians, especially

considering that the government holds them in trust

for the benefit of the Indians.

Thus, there is no real consequence to whether

the lands are Indian country for the one reason as

i

~

opposed to an ther. So long as the trust lands are

classified as Indian country for any reason, the Tribe

and the federal government have primary

jurisdiction. See Citizen Band, 498 U.S. at 511;

United States v. McGowan, 302 U.S. 535 (1938);

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

under any classification, an Indian tribe’s authority

over non-Indians is sharply limited under this

Court’s precedents.

A tribe’s inherent sovereign powers “do not

extend to the activities of nonmembers of the tribe.”

Montana v. United States, 450 U.S. 544, 565 (1981);

see also id. at 564 (“exercise of tribal power [does not

go] beyond what is necessary to protect tribal self-

government or to control internal relations”). The

“general rule” is that “Indian tribes lack civil

authority over the conduct of nonmembers,” even on

“non-Indian land within a reservation.” Strate v. A-1

Contractors, 520 U.S. 438, 446 (1997); see also

Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645,

650 (2001) (“Indian tribe power over nonmembers on

non-Indian fee land is sharply circumscribed.”).

The only civil authority tribes may exercise over

non-members on non-Indian fee lands within a

reservation is limited to two narrow exceptions: (1)

activities of non-members who enter consensual

commercial dealing, contract, or lease relationships

with the tribe or its members, and (2) conduct of

non-members that menaces the tribe’s “political

integrity,” “economic security,” or “health = or

welfare.” Montana, 450 U.S. at 565-66; see also

Cohen’s Handbook of Federal Indian Law

§ 4.02[3][c], at 233 (2005 ed.) (noting “elevated

threshold for satisfying the two Montana

28

exceptions”). And this Court has construed those

exceptions narrowly. See Plains Commerce Bank v.

Long Family Land & Cattle Co., 554 U.S. 316, 341

(2008); Atkinson, 532 U.S. at 656.

Amici’s claim that the Eighth Circuit has given

the Tribe “criminal jurisdiction over the affected

lands — period” is similarly foreclosed by settled

law. Amicus Br. for Colin Soukup et al., at 17. This

Court long ago established, in a case involving non-

Indian residents on a reservation, that “Indian tribes

do not have inherent jurisdiction to try and to

punish non-Indians.” Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191, 212 (1978), superseded in part

by statute on other grounds as stated in United

States v. Lara, 541 U.S. 193, 205-07 (2004); Cohen’s

Handbook § 4.02[3][b], at 226.

3. The lack of exceptional practical importance

is confirmed by the strained efforts of petitioners and

amict to pose academic questions that are not

actually presented by the decision below. They

attack a statement in a footnote in the court of

appeals’ original opinion stating that allotted lands

that were first transferred to non-Indians after 1948

remain reservation lands. County Pet. 19-20 & n.4;

see also State Pet. 34-35, 37: Dist. Pet. 6-9; Amicus

Br. for Colin Soukup et al., at 9-25; Amicus Br. for

Wagner Cmty. Sch. Dist., at 4-5. Indeed, many of

the briefs, including the District’s petition and most

of the amici briefs, appear to rely entirely on such

allotted lands for their assertions of harm. But as

petitioners begrudgingly acknowledge, the Eighth

Circuit removed that footnote from its final amended

opinion.

ao

In deleting the footnote, the Eighth Circuit

criticized petitioners for spinning out “possible

consequences of a decision which the court has not

reached” and raising a “virtual smokescreen” and

“straw man to attack.” Pet. App. 54, 56, 59-60. The

two sentences were mere “dicta” that “did not speak

to any matter actually litigated or decided.” Jd. at

04-55.

Petitioners and amici now attack the same

straw man even though the straw man is now a

phantom lacking even the weight of straw in light of

the Eighth Cuircuit’s deletion of the footnote.

Notwithstanding vague allusions to a_ residual

“rationale” in the amended opinion, see County Pet.

20 n.4, District Pet. 9, petitioners have not identified

any holding about the lands in question that this

Court could review, because there is none. Indeed,

the very multitude of estimated acreages of post-

1948 lands bandied about — “5,900” (State Pet. 35),

“6,000” (County Pet. 19), “7,000” (District Pet. 6),

and “8,600” (Amicus Br. of Wagner Cmty. Sch. Dist.,

at 4) — confirms that no court has yet to consider

the post-1948 fee lands. As the court determined,

the “record remains inadequate to decide the status

of such lands.” Pet. App. 60.

Accordingly, that issue is not ripe for this

Court’s review. Cf, e.g., Amicus Br. of Wagner

Cmty. Sch. Dist., at 5 (anguage “will undoubtedly be

used in future litigation to argue that post 1948 fee

lands are within the limits of an 18 U.S.C. § 1151(a)

reservation’). If and when the issue is litigated, a

court delivers a binding judgment, and actual

consequences materialize, the issue will be ripe for

this Court to decide whether to review it. In the

interim, petitioners’ focus on this phantom only

underscores that the actual decision below has

insufficient importance to warrant review. This

Court “reviews judgments, not statements in

opinions.” Black v. Cutter Labs., 351 U.S. 292, 297

(1956). A fortiori, it does not review statements that

have been deleted from opinions.

4. The Eighth Circuit’s decisions below also

have little impact on other Indian reservations

nationwide. Petitioners claim that the decision

creates “the prospect of thousands or perhaps tens of

thousands of such permanent ‘mini-reservations’

nationally” because many “terminated areas of

reservations contain allotted land.” State Pet. 36.

But such assertions not only adopt the fallacy that

all surplus land acts are the same, they also forget

that the Eighth Circuit engaged in a careful,

category-by-category analysis of the reservation

status of each type of trust lands precisely to avoid a

broad-brush rationale that would extend beyond this

particular reservation. See Pet. App. 34-44.

And the “checkerboard” shape of the Yankton

Sioux Reservation is by no means unprecedented.

From the Red Lake Indian Reservation and Bois

Forte Indian Reservation in Minnesota, to the Paiute

Indian Reservation in Utah, to the Laguna Pueblo,

Zia Pueblo, and Jemez Pueblo Reservations in New

Mexico, numerous Indian reservations across the

United States have long consisted of scattered, non-

contiguous parcels. See, e.g., Montana, 450 U.S. at

559 (plurality opinion); Brendale v. Confederated

Tribes & Bands of Yakima Indian Nation, 492 U.S.

408, 421 (1989): Ute Indian Tribe of Uintah & Ouray

31

Reservation v. Utah, 114 F.3d 1513, 1530 (10th Cir.

1997).

That should come as no surprise, because the

allotment policy had the inevitable effect of

producing non-contiguous reservations, as_ non-

Indians purchased some parcels while Indians

retained others. Thus, this Court has rejected the

contention that “it is not to be supposed that

Congress has intended to maintain the Federal

jurisdiction over hundreds of allotments scattered

through territory other portions of which were open

to white settlement.” Pelican, 232 U.S. at 449-50.

“Nor does the territorial jurisdiction of the United

States depend upon the size of the particular areas

which are held for Federal purposes.” Jd. at 450.

Jurisdiction in the Yankton Sioux Reservation,

as in other non-contiguous reservations, has proven

workable. In the 12 years since Gaffey, federal,

state, and tribal authorities have all cooperated

effectively and harmoniously. For many years, the

Yankton Sioux Tribe has entered cooperative

agreements with the County and State on public

matters ranging from road maintenance and fire

protection, to use of the same jail, to emergency

dispatch services — agreements that, by their terms,

expressly set aside jurisdictional disagreements for

the safety and benefit of residents. Tribal and

federal law enforcement officials, meanwhile, have

been exercising jurisdiction over crimes committed

on tribal trust lands and individual trust properties

without incident — as confirmed by the absence of

an actual conflict in authority between the federal

and state courts.

Over a decade ago, when Gaffey was newly

lecided, the Tribe sought certiorari because it

appeared that the Eighth Circuit’s decision would

have exceptionally important practical consequences.

The past decade of on-the-ground experience has

shown those concerns to be misplaced. And now that

tribal, federal, and local authorities have adapted to

this regime, changing it would be among the most

lestabilizing options of all.

CONCLUSION

} 3}

33

Respectfully submitted,

Paul D. Clement

Counsel of Record

BANCROFT PLLC

1919 M St. NW, Suite 470

Washington, DC 20036

pclement@bancroftplle.com

(202) 234-0090

Daryl L. Joseffer

Candice Chiu

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 737-0500

Richard A. Guest

NATIVE AMERICAN

RIGHTS FUND

1514 P Street NW,

Suite D

Washington, DC 20005

(202) 785-4166

Charles Abourezk

ABOUREZK &

ZEPHIER, P.C.

P.O. Box 9460

2020 W. Omaha Street

Rapid City, SD 57709

(605) 342-0097

Counsel for Respondent

Yankton Sioux Tribe

May 9, 2011