Opposition Brief — Hein v. Yankton Sioux Tribe

\l

Nos. 10-929, 10-931, OC, 932 and 10-T058

Jn the Supreme Court of the Gnited States

DENNIS DAUGAARD, GOVERNOR OF SOUTH DAKOTA,

ET AL., PETITIONERS

Vv.

YANKTON SIOUX TRIBE, ET AL.

SOUTHERN MISSOURI RECYCLING AND WASTE

MANAGEMENT DISTRICT, PETITIONER

Vv.

YANKTON SIOUX TRIBE ET AL.

PAM HEIN, STATE’S ATTORNEY OF CHARLES MIX

COUNTY, ET AL., PETITIONERS

Vv.

YANKTON SIOUX TRIBE ET AL.

YANKTON SIOUX TRIBE, ET AL., PETITIONERS

Vv.

DENNIS DAUGAARD, GOVERNOR OF SOUTH DAKOTA,

ET AL.

ON PETITIONS AND CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

(Additional Counsel Listed on Inside Cover)

NACIA S. MOREN(¢

Assistant Attorne

General

KATHRYN E. Kovac

KATHERINE W. HAZAI

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that

the Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, did not

wholly disestablish the Yankton Sioux Reservation.

2. Whether the Yankton Sioux Reservation includes

all lands within its original boundaries other than those

the Tribe ceded to the United States for sale to non-

Indians in the 1894 Act.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Alaska v. Native Vill. of Venetie Tribal Gov't,

Re Sica I CR) cn oe peewee d bees dp vanes Oy bly ee

Beardslee v. United States, 387 F.2d 280

ke RE 5 Rene Cents cea a 18

Bruguier v. Class, 599 N.W.2d 364 (1999) ..... 18, 19, 20

California v. Rooney, 483 U.S. 807 (1987)... 2... 2... 20

Chase v. McMasters, 573 F.2d 1011 (8th Cir.),

cert. denied 439 U.S. 965 (1978) .............0205. 25

City of Sherill v. Oneida Indian Nation, 544 U.S.

ok EREMIRAS ene eta ar a re 12, 25

County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation,

ge ee ee 29

Cutter v. Wilkinson, 544U.S. 709 (2005) ............ 30

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

CNS hc Sa aoe 6540 h0 ed DORA he ewe Se ee passim

Hagen v. Utah, 510 U.S. 399 (1994) .......... 4, 6, 13, 21

Langley v. Ryder, 778 F.2d 1092 (5th Cir. 1985) ..... 26

Mattz v. Arnett, 412 U.S. 481 (1973) ... 2... eee. 6

(IIT)

i 4 * 4 7 *E’ PT |

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VILEDSITATES bUR ‘

OPINIONS BELOW

The amended opinion of the court of appeals (Pet.

App. 1-51a)' is reported at 606 F.3d 994. The memoran-

dum opinion and order of the district court (Pet. App.

122-163) is reported at 529 F. Supp. 2d 1040. A prior

opinion of the court of appeals (Pet. App. 199-249) is

reported at 188 F.3d 1010. A prior memorandum opin-

ion and order of the district court (Pet. App. 250-320) is

reported at 14 F. Supp. 2d 1135.

JURISDICTION

The original judgment of the court of appeals was

entered on August 25, 2009. The court of appeals denied

rehearing en banc and issued an amended opinion on

May 6, 2010. Subsequent petitions for rehearing were

denied on September 20, 2010 (Pet. App. 321-322). On

December 14, 2010, Justice Alito extended the time

within which to file petitions for writs of certiorari to

and including January 18, 2011 (Pet. App. 323), and the

petitions were filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1). The condi-

tional cross-petition was filed on February 22, 2011.

STATEMENT

1. Section 1151 of Title 18 classifies three categories

of land as “Indian country”: “(a) all land within the lim-

its of any Indian reservation under the jurisdiction of

the United States Government, notwithstanding the is-

suance of any patent, and, including rights-of-way run-

ning through the reservation”; “(b) all dependent Indian

communities within the borders of the United States

whether within the original or subsequently acquired

' Citations in this brief to the petition appendix refer to the petition

appendix in No. 10-929.

>,

3)

territory thereof, and whether within or without the lim-

its of a state”; and “(c) all Indian allotments, the Indian

titles to which have not been extinguished, including

rights-of-way running through the same.” For land in

any of these three categories, criminal jurisdiction in

cases involving tribal members generally rests primarily

with the United States and the particular Indian tribe,

rather than the State in which the Indian country lies.

See 18 U.S.C. 1151-1153. The same distinction “gener-

ally applies * * * to questions of civil jurisdiction” as

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

427 n.2 (1975); see Alaska v. Native Vill. of Venetie

Tribal Gov't, 522 U.S. 520, 527 (1998).

2. The Treaty of April 19, 1858, 11 Stat. 743 (Pet.

App. 324-336), established a 430,000-acre Reservation

for the Yankton Sioux Tribe (Tribe) in what is now

Charles Mix County in southeastern South Dakota. Pet.

App. 5-6. Roughly 30 years later, Congress authorized

the Executive Branch to divide portions of Indian reser

vations into allotments: individual parcels of land that

would be held in trust by the United States for the bene-

fit of individual tribal members to whom the parcels

could eventually be conveyed in fee. See Indian General

Allotment Act (Dawes Act), ch. 119, 24 Stat. 388 (1887);

Act of Feb. 28, 1891, ch. 383, 26 Stat. 794. More than

262,000 non-contiguous acres of the Yankton Sioux Res-

ervation were allotted. Pet. App. 8.

In 1892, Congress directed the Secretary of the Inte-

rior to negotiate with the Tribe for the sale of surplus

reservation lands that were not needed for allotments.

Act of July 13, 1892, ch. 164, 27 Stat. 187. In December

1892, tribal leaders signed an agreement (the 1892

Agreement), later adopted by a majority of the Tribe, in

which the Tribe agreed to “cede, sell, relinquish, and

4

convey” its interest in all the unalloted lands—approx-

imately 168,000 acres interspersed among the allot-

ments—within the Reservation for $600,000. Pet. App.

8, 339. Although the Agreement specified that most of

the ceded land would be sold to non-Indian settlers, a

portion was exempted from such sale and set aside for

continued use by the United States for Indian agency,

schools, and other tribal-support purposes for as long as

necessary. Jd. at 342-343. In 1894, Congress “accepted,

ratified, and confirmed” the 1892 Agreement. Act of

Aug. 15, 1894, ch. 290, § 12, 28 Stat. 319 (1894 Act).

3. In South Dakota v. Yankton Sioux Tribe, 522

U.S. 329 (1998), this Court held that the 1894 Act dimin-

ished the Reservation by severing the unallotted ceded

lands from the Reservation. In reaching that result, the

Court principally relied upon the “‘cession’ and ‘sum cer-

tain’” language in the 1894 Act, by which the Tribe

ceded and conveyed all of its interest in the unallotted

lands for asum certain. /d. at 344. The Court had pre-

viously held that such language creates an “almost insur-

mountable” presumption of diminishment. /bid.; Hagen

v. Utah, 510 U.S. 399, 411 (1994); Solem v. Bartlett, 465

U.S. 468, 470 (1984).

The land at issue in Yankton Sioux Tribe was unal-

lotted land ceded to the United States by the 1894 Act

for sale to settlers. The Court therefore found it unnec-

essary to decide whether the Reservation had been

wholly disestablished. 522 U.S. at 358.

4. On remand, the district court consolidated the

original action, Yankton Sioux Tribe v. Southern Mis-

sourt Waste Management District (No. 94-4217), with

a new action, Yankton Sioux Tribe v. Gaffey (No.

98-4042). In the new action, the Tribe sought declara-

tory and injunctive relief precluding the State of South

ov

Dakota and Charles Mix County from exercising crimi-

nal jurisdiction over tribal members on (1) any lands

that had been allotted to members of the Tribe, whether

or not those lands are now held in trust by the United

States for the Tribe or individual members, and (2) the

lands that had been reserved from sale to non-Indians

under the 1894 Act for Indian agency, school, and other

purposes, which are at present held in trust by the

United States for the Tribe. The United States, which

had previously participated in the original action as an

amicus curiae, intervened in the consolidated action.

Pet. App. 202-203.

The district court, after taking additional evidence,

held that Congress had not disestablished the Yankton

Sioux Reservation. Pet. App. 253. The court concluded

that the 1894 Act had “modified or reeonceptualized” the

Reservation to consist of all of the lands within the origi-

nal 1858 exterior boundaries that had not been ceded to

the United States for sale to non-Indian settlers; accord-

ingly, the Reservation continued to consist of “all of the

reservation lands that were allotted pursuant to the al-

lotment acts, as well as the lands reserved from sale for

agency, school, and other tribal purposes.” /bid. The

court based that conclusion on the text of the 1894 Act

and the 1892 Agreement, the record of negotiations be-

tween the United States Commissioners and the Tribe,

the materials submitted to Congress in connection with

passage of the 1894 Act, and the subsequent treatment

of the allotted lands by the United States, the State, and

the Tribe. /d. at 250-321.

5. The court of appeals affirmed in part and reversed

in part. Pet. App. 199-249. It agreed with the district

court that the Reservation had not been disestablished.

Id. at 203. But the court held that the Reservation had

6

been further diminished to exclude not only the

unalloted ceded lands that were the subject of this

Court’s decision in Yankton Sioux Tribe, but also addi-

tional lands that had passed into non-Indian hands. /d.

at 247.

a. At the outset, the court of appeals recited the

well-settled principles governing the analysis of reserva-

tion diminishment and disestablishment questions.

First, the court noted that “[cJongressional intent is the

touchstone” for determining whether a reservation has

been diminished or disestablished, and thus that land set

aside for a reservation retains that status until Congress

indicates otherwise. Pet. App. 224 (citing Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1977), and

Solem, 465 U.S. at 470). Second, the court noted that

Congress’s “[{i]ntent to diminish or disestablish a reser-

vation must be ‘clear and plain,’” and “expressed on the

face of the Act or be clear from the surrounding circum-

stances and legislative history.” Jd. at 225 (quoting

United States v. Dion, 476 U.S. 734, 738 (1986), and

Mattz v. Arnett, 412 U.S. 481, 505 (1973)). Third, the

court noted that “neither diminishment nor disestablish-

ment will be found lightly,” and that any ambiguities in

statutes or agreements bearing on the question are re-

solved in favor of the Tribe. /d. at 229 (citing Yankton

Sioux Tribe, 522 U.S. at 344; Hagen, 510 U.S. at 411).

Finally, the court noted that each statute that is claimed

to have disestablished or diminished a reservation “must

be analyzed individually, its effect depending on the lan-

guage used and the circumstances of its passage.” /d. at

228 (citing Solem, 465 U.S. at 469).

b. The court of appeals held that no sufficiently clear

expression of Congress’s intent to disestablish the

Yankton Sioux Reservation could be found in the text of

7

the 1894 Act and the incorporated 1892 Agreement, in

the record of the negotiations between the United States

and the Yankton Sioux, or in the other materials before

Congress at the time of the adoption of the 1894 Act.

Pet. App. 229-2438.

The court of appeals observed that Articles I and II

of the 1894 Act—the provisions principally relied on by

this Court in Yankton Sioux Tribe—“refer[] explicitly

only to the ceded lands.” Pet. App. 229. The court de-

termined that three other articles of the 1894 Act con-

templated some degree of continuing tribal governance -

over the allotted lands. The court concluded that Article

V, which provided for an optional fund that could be

used, among other things, for schools, courts, and “other

local institutions for the benefit of said tribe,” “clearly

foresaw continued tribal activity in providing for the

needs of the Yankton Sioux.” Jd. at 238-239; see zd. at

340-341. The court viewed Article XVII, which prohib-

ited the sale of liquor “upon any of the lands by this

agreement ceded and sold to the United States” and

“upon any other lands within or comprising the reserva-

tions of the Yankton Sioux or Dakota Indians,” as

“acknowledg|[ing] the continued existence of two distinct

categories of land to which different laws might apply.”

Id. at 239-240; see zd. at 239 (Article XVII “signal[ed] a

jurisdictional distinction between reservation and ceded

land”) (quoting Yankton Sioux Tribe, 522 U.S. at 350)

(brackets in original). And the court read Article VIII,

which reserved from sale to settlers those ceded lands

“as may now be occupied by the United States for

agency, schools, and other purposes,” as indicating that

“some lands were expected to remain outside of primary

state jurisdiction.” Jd. at 240.

———————————————

8

The court of appeals likewise found no clear indica-

tion of an intent to disestablish the Reservation in the

record of the negotiations between the United States

and the Tribe. Pet. App. 231-237. The court observed

that the United States Commissioners who negotiated

the 1892 Agreement had “repeatedly emphasized” to the

Tribe that “their primary objective was the purchase of

the unallotted lands.” Jd. at 232. The court noted that

the Commissioners had also “indicated that the tribal

leadership would retain some governing powers,” and it

viewed such indications as “suggest[ing] the parties did

not intend to disestablish the reservation.” Jd. at 233.

The court further observed that the Commissioners’

subsequent report to Congress did not equate the

Tribe’s sale of the surplus lands with the Tribe’s imme-

diate loss of sovereignty over the unceded lands. /d. at

235-237. The report instead reflected what the court

described as the parties’ understanding that “only a por-

tion of the reservation was being separated at that

time.” /d. at 236.

The court of appeals additionally concluded that

“treatment of the Yankton area in the years following

passage of the [1894] Act provides further evidence that

the nonceded lands retained their reservation status

until they passed out of trust.” Pet. App. 243-244.

Among other things, the court of appeals discussed evi-

dence in the record regarding the Tribe’s maintenance

of a tribal police force and an independent judicial sys-

tem, and Congress’s “definitive and considered step”

when, in 1929, it decided to return the lands previously

reserved for tribal-support purposes to the Tribe and

prohibited the allotment of those lands. /d. at 244-246

& n.12.

9

c. The court of appeals concluded, however, that the

1894 Act intended to diminish the Reservation not only

by removing the ceded land, but also other (allotted)

land that subsequently passed into the hands of non-In-

dians. Pet. App. 243, 247. The court stated that the

1894 Act, when “read in its full historical context,” con-

templated that tribal members would eventually obtain

fee title to their allotted lands and gain the ability to sell

those lands to non-Indians, and the lands would thus

become subject to the civil and criminal laws of the

State. Jd. at 248. The court of appeals did not deter-

mine precisely which lands—other than roughly 1000

acres originally reserved in the 1894 Act for tribal-sup-

port purposes, which Congress, in 1929, specified should

be returned to the Tribe, see Act of Feb. 13, 1929, ch.

183, 45 Stat. 1167 (1929 Act)—remained within the sur-

viving Reservation, instead remanding to the district

court to make that determination in the first instance.

Pet. App. 248-249.

6. The State, the County, and the waste manage-

ment district (collectively, “petitioners”), and also the

Tribe, filed petitions for writs of certiorari. They pre-

sented the same issues for review that they present

here: petitioners contended, contrary to the court of

appeals, that the Reservation had been disestablished;

the Tribe contended, contrary to the court of appeals,

that the present-day Reservation includes allotted lands

that have passed out of Indian ownership. See 99-1490

Pet. 11-29; 99-1683 Pet. 4-22. The United States urged

the Court to deny both petitions, U.S. Br. in Opp., Nos.

99-1490 and 99-1683, and the Court denied certiorari.

See South Dakota v. Yankton Sioux Tribe, 530 U.S.

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

1261 (2000).

10

7. On remand, the district court held that the follow-

ing lands remained within the Reservation, and were

therefore Indian country under 18 U.S.C. 115l(a): (1)

land allotted to members of the Tribe in 1894 and held

continuously in trust by the United States for the bene-

fit of the Tribe or its members since that time (30,051.66

acres); (2) land taken into trust by the United States for

the benefit of the Tribe under the Indian Reorganization

Act (IRA), ch. 576, 48 Stat. 984 (1934) (6444.47 acres);

(3) land reserved to the United States in 1894 and re-

turned to the Tribe pursuant to the 1929 Act (913.83

acres); and (4) Indian-owned fee land that has been con-

tinuously in Indian hands since 1894. Pet. App. 162; see

id. at 82.

The district court held in the alternative that, for two

independent reasons, lands in categories 1 and 2 above

would be Indian country for jurisdictional purposes even

if they were not part of a formally designated reserva-

tion. First, the court determined that those lands, if not

part of a formal reservation, constituted an “informal”

or “de facto” reservation, and thus would still be Indian

country under Section 1151(a). Pet. App. 153-157. The

court observed that under this Court’s decisions, “the

test for determining whether land is Indian country does

not turn upon whether that land is denominated ‘trust

land’ or ‘reservation,’ but instead on “whether the area

has been validly set apart for the use of the Indians as

such, under the superintendence of the Government.”

Id. at 153 (quoting Oklahoma Tax Comm’n v. Citizen

Band Potawatomi Indian Tribe, 498 U.S. 505, 511

(1991) (some quotation marks omitted). The court con-

cluded, based on the evidence of federal superinten-

dence, that the lands met this definition. Jd. at 156.

1]

Second, the court determined that these lands also

constituted a “dependent [Indian community” under Sec-

tion 1151(b). /d. at 159-160. “The Supreme Court,” it

explained, “established two requirements for off-reser-

vation land to qualify as a dependent Indian community

under § 1151(b): ‘a federal set-aside and a federal su-

perintendence requirement.’” /d. at 160 (quoting Native

Vill. of Venetie Tribal Gov't, 522 U.S. at 5380) (emphasis

omitted). The court held, based on the evidence, that

the lands satisfied these requirements. /bid.

8. a. The court of appeals affirmed in part and va-

cated in part. Pet. App. 71-121. It reaffirmed its previ-

ous determination that the land reserved for tribal-sup-

port purposes in 1894 and returned to the Tribe under

the 1929 Act was reservation land. /d. at 90-94. It also

affirmed the district court’s conclusion that two other

categories of trust land—allotted land held continuously

in trust by the United States and land taken into trust

under the I[RA—were part of the reservation as well.

Id. at 97-112. The court of appeals expressly recog-

nized that these latter two categories of land would be

considered Indian country even if the reservation had

been disestablished. It observed that all parties con-

ceded that the allotted trust lands would be Indian coun-

try under Section 1151(c), which specifically addresses

allotments. /d. at 97-98. And it further observed that

the IRA trust land would be Indian country pursuant to

25 U.S.C. 465. Pet. App. 105-107; see zd. at 106 (“[S]ec-

2 The court of appeals noted that the district court had identified, but

had not expressly addressed the status of, an additional 174.57 acres of

trust land that had been taken into trust under statutes other than the

IRA. Pet. App. 82-83, 112. The court of appeals concluded that these

lands were “dependent Indian communities” and thus Indian country

under Section 1151(b). Jd. at 112-114.

12

tion 465 provides the proper avenue for a tribe to rees-

tablish sovereign authority over territory.”) (quoting

City of Sherill v. Oneida Indian Nation, 544 U.S. 197,

221 (2005)) (brackets omitted)).

The court of appeals vacated, however, the district

court’s conclusion that continuously-Indian-owned fee

lands are part of the Reservation. Pet. App. 114-116. It

deemed the issue unripe because the record was unde-

veloped; among other things, it was not clear that any

such lands existed. /d. at 115-116.

b. The panel granted in part petitioners’ request for

panel rehearing. Pet. App. 52-70. Petitioners’ request

“focus[ed] on dicta in a single footnote of [the court’s] 37

page decision.” /d. at 54. Petitioners argued that the

footnote indicated that a certain set of lands—lands al-

lotted to Indians in 1894 but sold to non-Indians after

the enactment of Section 1151 in 1948—were part of the

Reservation, and they (along with amici) claimed that

various detrimental consequences flowed from that re-

sult. Jd. at 58-59. The court explained that petitioners

had “raised a straw man to attack” and were “well aware

that the wording to which they object is not part of the

judgment in this case.” /d. at 59-60. The court never-

theless amended and reissued the opinion, removing

language that might be “misunderstood” as reaching the

issue of allotted lands transferred to non-Indians after

1948, but otherwise leaving the decision unaltered. /d.

at 56; see zd. at 1-51 (amended opinion).

ARGUMENT

The court of appeals correctly concluded that the

Yankton Sioux Reservation has not been wholly dises-

tablished and that the Reservation includes approxi-

mately 37,410 acres held in trust by the United States.

13

That fact-bound decision does not conflict with any deci-

sion of this Court or any other court of appeals. Nor

does it have any significant practical consequence, piven

the jurisdictional treatment of the specific trust lands at

issue in this case. For reasons largely explained by the

lower courts, the trust lands are Indian country, and

therefore presently subject primarily to federal and

tribal jurisdiction rather than state jurisdiction, whether

or not the Yankton Sioux Reservation was disestab-

lished by the 1894 Act. Further review of the question

presented by petitioners (regarding whether the Reser-

vation was disestablished), as well as the question pre-

sented in the conditional cross-petition (regarding the

extent of the Reservation), is accordingly unwarranted.

1. In coneluding that the Reservation was not wholly

disestablished in 1894, the court of appeals applied the

standards repeatedly articulated by this Court, see, e.g.,

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

343-344 (1998), to the particular facts and circumstances

of this case. Such a fact-specific application of settled

legal standards does not merit this Court’s review. See

Sup. Ct. R. 10.

As the court of appeals recognized (Pet. App. 225),

Congress’s intent to diminish or disestablish a reserva-

tion must be “clear and plain,” under a standard that

considers the text of the relevant surplus land Act, the

legislative history, and the surrounding circumstances.

Yankton Sioux Tribe, 522 U.S. at 343-344 (quoting

United States v. Dion, 476 U.S. 734, 738-739 (1986));

Hagen v. Utah, 510 U.S. 399, 411-412 (1994); Solem v.

Bartlett, 465 U.S. 469, 470-471 (1984). “This Court does

not lightly conclude that an Indian reservation has been

terminated,” and it resolves ambiguities in favor of the

14

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

444 (1975).

There was no expression of congressional intent,

much less the “clear and plain” expression required by

this Court, to disestablish the Yankton Sioux Reserva-

tion. ‘The primary purpose of the 1894 Act. was to trans-

fer unallotted surplus lands from the Yankton Sioux

Tribe to the United States. That transfer was accom-

plished by Articles I and II of the 1894 Act—the provi-

sions that this Court principally relied upon in Yankton

Sioux Tribe—which provided for the cession and con-

veyance of the surplus lands and established the amount

of payment for those lands. See 522 U.S. at 344-345.

Those articles refer only to the unallotted surplus lands,

not to the lands that were to be allotted to tribal mem-

bers. Pet. App. 339."

No other provision of the 1894 Act offers any clear

indication that Congress intended that the cession of the

unallotted (or “surplus”) lands would result in the dises-

tablishment of the entire Reservation. Indeed, several

* The County errs in asserting (County Pet. 24-25) that the “cession

and sum certain” language contained in these articles gives rise to a

“disestablishment presumption.” As the decisions in both Yankton

Sioux Tribe and Solem explain, such language creates only a “pre

sumption of diminishment” (ve., that the reservation was reduced by

the area sold), not a presumption of disestablishment (2e., that the

reservation was eliminated entirely). Yankton Sioux Tribe, 522 U.S. at

344 (emphasis added); see Solem, 465 U.S. at 470-471. This Court has

already applied the diminishment presumption in Yankton Swoux Tribe

to find that the Reservation was diminished to the extent lands were

ceded to the United States for sale to non-Indians. See 522 U.S. at 351.

The question now is one of complete disestablishment, and, as explained

in the text, the presumption favors the continuation of the reservation,

unless congressional intent to the contrary is clearly shown.

L5

provisions of the 1894 Act and the incorporated 1892

Agreement point to the opposite conclusion.

Article VIII of the 1894 Act reserved from sale to

non-Indian settlers those lands ceded by the Tribe to the

United States “as may now be occupied by the United

States for agency, schools, and other purposes.” 28 Stat.

316 (Pet. App. 342-343). This Court recognized in

Yankton Sioux Tribe that Article VILI “counsels against

finding the reservation terminated,” because Congress

probably would not. have reserved lands for such pur-

poses if it had not anticipated a continuing Reservation.

522 U.S. at 350; accord Solem, 465 U.S. at 474. The

court of appeals similarly viewed Article VIII as reflect-

ing “Congress’ expectation that the federal government

would continue to have a significant presence in the area

for the welfare of the Tribe,” so that “some lands were

expected to remain outside of primary state jurisdic-

tion.” Pet. App. 240.

Article XVII of the 1894 Act prohibited the sale or

offering of intoxicating liquors “upon any of the lands by

this agreement ceded and sold to the United States” and

“upon any other lands within or comprising the reserva

tions of the Yankton Sioux or Dakota Indians as de-

scribed in the [1858] treaty.” 28 Stat. 318 (Pet. App.

347). As this Court observed in Yankton Sioux Tribe,

Article XVII “thus signal[s] a jurisdictional distinction

between reservation and ceded land.” 522 U.S. at 350;

see Pet. App. 239-240 (observing that Article XVII “ae

knowledged the continued existence of two distinct cate-

gories of land to which different laws might apply”).

Article V of the 1894 Act provided a mechanism for

funding, from interest due the Tribe on proceeds from

the sale of ceded lands, various post-cession tribal activi-

ties, such as the care of “orphans, and aged, infirm, or

16

other helpless persons of the Yankton tribe,” schools

and educational programs, and “courts of justice and

other local institutions for the benefit of said tribe.” 28

Stat. 315 (Pet. App. 341). Article X1 provided an addi-

tional source of funding for those activities from the sale

of lands of tribal members who died intestate. 28 Stat.

317 (Pet. App. 344). The court of appeals recognized

that those provisions, which “clearly foresaw continued

tribal activity in providing for the needs of the Yankton

Sioux,” militate against a determination that Congress

intended to disestablish the Reservation. Pet. App. 239.‘

The record of the negotiations of the 1892 Agreement

between the United States Commissioners and the

Yankton Sioux likewise provides no indication of an in-

tent to disestablish the Reservation. The Commission-

ers repeatedly informed the Tribe during the negotia-

tions that they had one primary purpose—to purchase

the Tribe’s unallotted surplus lands. Pet. App. 232-234;

(citing S. Exee. Doe. No. 27, 53d Cong., 2d Sess. 48

(1894) (Negotiation Record)). That purpose was consis-

tent with the continued existence of a Reservation. As

the district court observed, “({a]t no point in the Commis-

sioners’ reports is there any mention, by a Commis-

sioner or by a Yankton Sioux, of any anticipated change

in the reservation boundaries or of a disestablishment or

termination of the Yankton Sioux Reservation.” /d. at

284.

The negotiation records were submitted to Congress

by the Secretary of the Interior to support ratification

of the 1892 Agreement. Pet. App. 232. The congressio-

nal debates on the ratification did not address the status

* As the court of appeals noted (Pet. App. 238-239), the fund referred

to in Articles V and XI “was never actualiy created, but the fact that it

was provided for in the statute has relevance on the question of intent.”

17

of the allotted lands within the Yankton Sioux Reserva-

tion. See, e.g., 26 Cong. Rec. 6426 (1894) (statement of

Rep. Pickler of South Dakota) (“We simply provide in

this bill how these 168,000 acres of land acquired from

the Indians shall be disposed of.’’); cf. Yankton Sioux

Tribe, 522 U.S. at 353 (observing that “[t]he legislative

history itself adds little”).

Subsequent actions by Congress, and the on-the-

ground-facts, likewise do not support a conclusion that

the Reservation was disestablished. Pet. App. 244. As

the court of appeals explained, Congress’s decision in

1929 to return certain reserved lands to the Tribe pro-

vides some additional evidence that Congress “always

intended” to provide a “property site” for tribal-support

activities. See zd. at 244-245. The Tribe additionally

presented uncontested evidence that it maintained a

tribal police force and an independent judicial system

following passage of the 1894 Act. /d. at 246 & n.12.

In sum, the court of appeals correctly concluded that

no clear indication of congressional intent to disestablish

the Yankton Sioux Reservation could be found in the

text of the 1894 Act and the 1892 Agreement, in the leg-

islative history, or in the surrounding circumstances.”

Pet. App. 241. Not only is there no reason for the Court

to revisit that conclusion, but, contrary to the State’s

contention (State Pet. 36-37), review by this Court would

’ The State appears briefly to suggest (State Pet. 24-26) that this

Court’s decision in Yankton Sioux Tribe, in combination with the

State’s interpretation of the record, demonstrates that the Reservation

was, in fact, disestablished. The State misinterprets Yankton Sioux

Tribe. The Court in that case expressly declined to reach the disestab-

lishment issue, 522 U.S. at 358, and recognized that certain provisions

of the 1854 Act cut against disestablishment, 7d. at 350. See p. 15,

supra.

18

not provide any useful guidance to lower courts in decid-

ing other Indian-country cases. Other cases would nec-

essarily involve different treaties between the United

States and the particular tribe; different statutes; differ-

ent historical circumstances; different subsequent set-

tlement activity; and different treatment of the opened

lands by the United States, the State, and the relevant

tribe. Cf. Solem, 465 U.S. at 469 (“[I]t is settled law that

some surplus land Acts diminished reservations and

other surplus land Acts did not.”) (citations omitted).

Certiorari is accordingly unwarranted.

2. Petitioners contend (State Pet. 16-26; County Pet.

16-35; SMRWMD Pet. 6-11) that the court of appeals’

decision conflicts with the South Dakota Supreme

Court’s decision in Bruguier v. Class, 599 N.W.2d 364

(1999), and with this Court’s decision in DeCoteau v.

District County Court, supra.® Petitioners made the

exact same contention in their previous petition for cer-

tiorari on the question presented here, which the Court

denied. See 99-1490 Pet. 11-20; South Dakota v.

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

tion is mistaken.

a. Contrary to petitioners’ assertion of a conflict

between the decision below and the Supreme Court of

South Dakota’s decision in Bruguier, the actual holdings

of the two cases are identical. Both hold that allotted

lands within the exterior boundaries of the original

° The Southern Missouri Recycling and Waste Management District

additionally contends (SMRWMD Pet. 11-13) that the court of appeals’

decision in this case conflicts with that court’s previous decision in

Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967). Even

assuming such a conflict existed, it would be for the court of appeals,

not this Court, to resolve. See Wisniewski v. United States, 353 U.S.

901, 902 (1957) (per curiam).

19

Yankton Sioux Reservation now owned by non-Indians

do not constitute “Indian country” under 18 U.S.C. 1151,

and consequently that the State, not the United States

and the Tribe, has primary jurisdiction over crimes com-

mitted on those lands.

In Bruguier, the defendant was convicted of a state

criminal offense for committing a burglary in Pickstown,

South Dakota, which is within the exterior boundaries of

the original Yankton Sioux Reservation. 599 N.W.2d at

365. He subsequently sought habeas corpus relief,

claiming that the offense occurred in Indian country,

and thus that the State lacked jurisdiction over him. /d.

at 365-366. The parties stipulated that the offense oc-

curred on allotted land to which Indian title had been

extinguished. /d. at 366. The land had been sold in fee

to a non-Indian, and was neither trust land, a dependent

Indian community, nor property held by the Tribe. /d.

at 377-378.

In denying habeas relief, the South Dakota Supreme

Court reasoned that the 1894 Act disestablished the

Yankton Sioux Reservation. Bruguier, 599 N.W.2d at

378. But the court’s actual holding was limited to the

narrower issue presented in the case: whether the land

on which the offense was committed constituted Indian

country, and thus whether primary jurisdiction over the

defendant’s crime rested with the United States and the

Tribe or, alternatively, with the State. The court ac-

knowledged the limited scope of its holding, stating at

the outset of its opinion: “Here we must decide the sta-

tus of allotted lands, which have passed into non-Indian

ownership.” /d. at 365. The court concluded that such

lands do not constitute Indian country. /bid.

The court of appeals in this case likewise held that

formerly allotted lands that now are owned by

20

non-Indians “are not part of the Yankton Sioux Reserva-

tion and are no longer Indian country.” Pet. App. 247;

see id. at 17. Thus, as the court of appeals recognized,

Bruguier addressed “a category of land” that the court

of appeals had “held was not part of a diminished reser-

vation.” Jd. at 23 n.7 (emphasis added). Under the hold-

ings of both the Supreme Court of South Dakota and the

Eighth Circuit, the State had primary jurisdiction over

the offense at issue in Bruguier, and indeed has jurisdic-

tion over offenses on all allotted lands that have passed

out of trust status and are now in non-Indian ownership.

Nor is any disagreement evident between the court

of appeals and the Supreme Court of South Dakota that

trust lands within the original exterior boundaries of the

Reservation are Indian country. The Supreme Court of

South Dakota stated that the land at issue in Bruguier

was not trust land, 599 N.W.2d at 378, and repeatedly

recognized that certain lands might be Indian country

even without a formal reservation, see zd. at 370-371,

376, 378. For reasons explained at pp. 24-30, infra, fed-

eral law does indeed classify the trust lands as Indian

country irrespective of formal reservation status.

The decision of the court of appeals in this case thus

does not present a “conflict[{] with a decision by a state

court of last resort,” Sup. Ct. R. 10(a), of the sort that

warrants this Court’s review. The Court has stated that

it “reviews judgments, not statements in opinions.” Cal-

~ifornia v. Rooney, 483 U.S. 307, 311 (1987) (citation

omitted)). Where, as here, there is a difference in rea-

soning but not result, this Court’s intervention is unwar-

ranted.

b. The court of appeals’ decision also does not con-

flict with this Court’s decision in DeCoteau, which held

that another South Dakota Reservation, the Lake Tra-

21

verse Reservation of the Sisseton-Wahpeton Tribe, had

been disestablished.

This Court has cautioned against automatically ex-

tending a decision holding that one reservation was dis-

established or diminished to another reservation, ex-

plaining that the “effect of any given surplus land Act

depends on the language of the Act and the circum-

stances underlying its passage.” Hagen, 510 U.S. at 410

(quoting Solem, 465 U.S. at 469); see Minnesota v. Mille

Lacs Band of Chippewa Indians, 526 U.S. 172, 202

(1999) (rejecting, as contrary to “basic principles of

treaty construction,” the argument that “similar lan-

guage in two Treaties involving different parties has

precisely the same meaning,” because “the historical

record” and “the context of the treaty negotiations”

must be examined “to discern what the parties intended

by their choice of words”). Here, the text of the surplus

land Act and the circumstances surrounding its enact-

ment differ in several significant respects from those in

DeCoteau.

As for the statutory language, although both surplus

land Acts provide for a cession of surplus lands for a

sum certain, the 1894 Act concerning the Yankton Sioux

Reservation contains provisions that do not have coun-

terparts in the Act of Mar. 3, 1891, ch. 543, 26 Stat. 989

(Sisseton-Wahpeton Act), that ratified the agreement

with the Sisseton-Wahpeton Tribe. The Sisseton-

Wahpeton Act did not have a provision analogous to Ar-

ticle VIII of the 1894 Act, which reserved from sale to

settlers those surplus lands occupied by the United

States for Indian agency, school, and other purposes. 28

Stat. 316; see Yankton Sioux Tribe, 522 U.S. at 350

(stating that such a provision counsels against finding

the Reservation disestablished). The Sisseton-

22

Wahpeton Act also did not have a provision analogous to

Article XVII of the 1894 Act, which expressly prohibited

the sale of liquor on both the newly ceded lands and on

“any other lands within or comprising the reservations

of the Yankton Sioux or Dakota Indians.” 28 Stat. 318;

see Yankton Sioux Tribe, 522 U.S. at 350 (suggesting

that such a provision draws a “jurisdictional distinction”

between ceded lands and reservation lands). Nor did

the Sisseton-Wahpeton Act have provisions analogous to

Articles V and XI of the 1894 Act, which provided a

mechanism to fund schools, courts, and “other local in-

stitutions for the benefit of [the] tribe.” 28 Stat. 315,

317. Accordingly, the 1894 Act, in contrast to the

Sisseton-Wahpeton Act, contemplated a continuing role

for the United States and the Tribe in the area and a

jurisdictional distinction between ceded and other reser-

vation lands.

As for the surrounding circumstances, the

Sisseton-Wahpeton expressed their understanding, with

a clarity that the Yankton Sioux did not, that the cession

of their surplus lands and the allotment of their remain-

ing lands would terminate their Reservation. As the

court of appeals observed, “(t]he background of the

Lake Traverse agreement was very different from that

of the 1894 Act, * * * because the tribal members

there had expressed their clear desire to terminate their

reservation.” Pet. App. 220-221. For example, this

Court noted that spokesmen for the Sisseton-Wahpeton

Tribe had stated that “[wJe never thought to keep this

reservation for our lifetime,” DeCoteau, 420 U.S. at 433;

that “[w]Je don’t expect to keep [the] reservation,” 2b7d.;

and that “[t]his little reservation * * * was given us as

a permanent home, but now we have decided to sell,”

id. at 436-437 n.16. In contrast, the “circumstances sur-

23

rounding the negotiation of the 1892 Agreement with the

Yankton Sioux and the difficulty in obtaining tribal votes

to ratify it are significantly different, and there was no

expression by the Indians of an intent to eliminate their

reservation.” Pet. App. 221.

Finally, the Sisseton-Wahpeton Tribe negotiated for

substantially more allotted acreage per capita than was

provided by the Dawes Act or was received by the

Yankton Sioux under the 1894 Act. The Dawes Act, pur-

suant to which the allotments to the Yankton Sioux were

made, provided that heads of household were to receive

160 acres, single persons over 18 or orphans were to

receive 80 acres, and other persons were to receive 40

acres. Pet. App. 262 (citing 24 Stat. 388). In contrast,

each Sisseton-Wahpeton member, “regardless of age or

sex,” received a 160-acre allotment. DeCoteau, 420 U.S.

at 435; see zd. at 438 n.19 (quoting the Senate Commit-

tee Report on the Sisseton-Wahpeton agreement as ex-

plaining that “the departure from the general allotment

act of 1887 in the case of these Indians is just and

proper,” principally because “the additional allotments

are in lieu of any residue which, under their title, these

Indians could have reserved for the future benefit of

their families”). The court of appeals thus recognized

that the agreement in DeCoteau differed significantly

from the agreement here, because the Sisseton-

Wahpeton, in “exchange” for the termination of their

Reservation, “negotiated allotments for each individual,

including married women.” Pet. App. 221. The Yankton

Sioux did not.‘

’ The State argues (State Pet. 22) that present-day demographics

also show a similarity between this case and DeCoteau. Even assuming

present-day demographic evidence could suffice to show disestablish-

ment in 1894, the State misinterprets the significance of the evidence

24

In sum, given the significant differences in the lan-

guage of the surplus land Acts involving the Yankton

Sioux Reservation and the Lake Traverse Reservation

as well as in the circumstances surrounding their enact-

ment, no conflict exists between the decision below and

this Court’s decision in DeCoteau.

3. The question presented by petitioners regarding

the Reservation’s disestablishment does not merit re-

view for the additional reason that it is of little practical

consequence. The only lands that the court of appeals

found to be Indian country under 18 U.S.C. 1151(a)

based on their reservation status were (1) allotted lands

held in trust by the United States for tribal members;

(2) lands acquired by the United States since 1934 and

held in trust for the Tribe pursuant to the IRA; and (3)

lands that were ceded to the United States under the

1894 Act but reserved for Indian “agency, schools, or

other purposes,” were later returned to the Tribe, and

are now held in trust by the United States for the bene-

fit of the Tribe. See p. 11, supra. All of these lands

would be indian country even if the Reservation had

been disestablished, as petitioners contend.*

here. As the figures cited by the State demonstrate, whereas Indians

were less than 10% of the relevant population in DeCoteau, they make

up roughly one-third of the population here. See Pet. App. 315 (district

court emphasizing demographic differences between this case and

DeCoteau).

® To the extent that the State’s criticism (State Pet. 26-35) of the

court of appeals’ decision could be read to touch upon these alternative

grounds for Indian-country status, such arguments are not encom-

passed within the question presented in the State’s petition, which

seeks review only of “[wJhether the Act of 1894 disestablished the

Yankton Sioux Reservation.” State Pet. i.

25

a. The vast majority of the land at issue (over 30,000

acres) falls within the first category enumerated above:

allotted lands held in trust for tribal members. Pet.

App. 12-13. Petitioners conceded below that even if this

land were not reservation land under Section 1151(a), it

would still be Indian country under Section 1151(c),

which expressly addresses allotments. See zd. at 28,

226. The State argues (State Pet. 27) that resolution of

the disestablishment question is still important to the

status of these lands, because, if there is no reservation,

then these lands would cease to be Indian country if

they were ever removed from trust status. But as a

practical matter, very little of this land has been re-

moved from trust status in recent years, and there is

little reason to expect that much, if any, of it will be in

the near future. See Gov’t C.A. App. 175-197 (less than

one allotment has been removed from trust in each of

the last two decades).

b. Most of the land at issue that does not fall into the

first category falls within the second: some 6000 acres

of lands placed into trust under the IRA. Pet. App. 12-

13. The court of appeals correctly concluded that this

category of land is Indian country whether or not the

formal Reservation was disestablished. /d. at 36-37.

The IRA authorizes the Secretary of the Interior to ac-

quire “land for Indians” “within or without existing res-

ervations.” 25 U.S.C. 465 (emphasis added). The court

of appeals recognized, quoting this Court’s decision in

City of Sherill v. Oneida Indian Nation, 544 U.S. 197,

221 (2005), that the IRA “provides the proper avenue for

a tribe to reestablish sovereign authority over terri-

tory.” Pet. App. 36 (brackets omitted); see zd. at 36-37

(citing Chase v. McMasters, 573 F.2d 1011, 1018 (8th

Cir.), cert. denied, 439 U.S. 965 (1978); United States v.

26

Roberts, 185 F.3d 1125, 1131 (10th Cir. 1999), cert. de-

nied, 529 U.S. 1108 (2000); and Langley v. Ryder, 778

F.2d 1092, 1095 (5th Cir. 1985), for the proposition that

IRA trust lands are Indian country). Petitioners do not

challenge that conclusion in their identical questions

presented, and nothing this Court decides on the dises-

tablishment issue on which petitioners do seek review

would place these lands within state jurisdiction.”

ec. The third category of land at issue—roughly 900

acres of “agency trust land,” reserved for the Tribe’s

benefit in 1894 and restored to the Tribe under the 1929

Act—comprises less than three percent of the total land,

Pet. App. 12-13, and thus would not by itself merit this

Court’s attention. In any event, this land would qualify

as an “informal” or “de facto” reservation under this

Court’s precedents, even if no formal Reservation ex-

isted. In Oklahoma Tax Comm’n v. Citizen Band

Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991), this

Court considered the status of lands that were not

within the boundaries of a formally recognized reserva-

tion but that were held in trust by the United States for

the benefit of a tribe. The Court concluded that, be-

cause the trust land was “validly set apart for the use of

the Indians as such, under the superintendence of the

Government,” the trust land “qualifie[d] as a reserva-

tion.” Jbid. (citation omitted); see United States v.

John, 437 U.S. 634, 649 (1978) (observing that “[t]here

is no apparent reason why these [trust] lands, which had

been purchased [by the United States] in previous years

for the aid of those Indians, did not become a ‘reserva-

tion,’ at least for the purposes of federal criminal juris

* As noted below, see p. 27, infra, these lands also meet the stan

dards for an informal reservation more generally.

27

diction at that particular time”); see generally Okla

homa Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114,

123 (1993) (recognizing that Indian reservations, for

purposes of 18 U.S.C. 1151(a), may be either “formal” or

“informal”).

The district court expressly recognized that the

other two categories of land at issue in this case—the

allotted trust lands and IRA trust lands—meet the stan-

dards for an informal reservation. Pet. App. 153-157.

The district court concluded, based on the evidence pre-

sented, that “the federal government has validly set

apart” those lands “for use of the Yankton Sioux Indi-

ans,” observing that the federal Bureau of Indian Affairs

handles leases and rents, and the Federal Bureau of

Investigation exercises criminal jurisdiction, over that

territory. /d. at 156. Similar considerations demon-

strate that the agency trust land meets the standards

for an informal reservation as well: the land was re-

served for the purpose of providing “aid and education

to tribal members so long as they were needed,” 2d. at

21 (citation omitted); see 28 Stat. 316 (Pet. App. 342-

343); was later “reinvested in the Yankton Sioux Tribe”

when “no longer required for agency, school, and other

purposes,” Act of Feb. 13, 1929, ch. 183, 45 Stat. 1167;

was exempted from allotment, thereby preventing its

transfer to non-Indians, 2b7d.; see 69 Cong. Rec. 8837

(1928) (Sen. McMaster of South Dakota explaining that

the lands would not be vulnerable to sale for taxes, and

instead that the act would reinvest the lands “not for

allotment but for reservation purposes, buildings, and so

forth”); is held in trust for the Tribe with federal super-

intendence of leasing; and has been subject to federal

criminal jurisdiction, Pet. App. 246.

28

d. Moreover, any tribal trust lands determined not

to constitute either a formal or informal reservation un-

der Section 1151(a) would satisfy the requirements of

Section 1151(b) as a dependent Indian community. The

district court expressly recognized that the federal gov-

ernment’s treatment of the allotted trust lands and IRA

trust lands qualified them as dependent Indian commu-

nity under this Court’s decision in Alaska v. Native Vil-

lage of Venetie Tribal Government, 522 U.S. 520, 530

(1998). See Pet. App. 159-160. The analogous treatment

of the agency trust land would similarly qualify it as

dependent Indian community as well.

e. Because the lands in question would be Indian

country if the formal Reservation no longer existed,

there is no merit to the State’s contention (State Pet. 35)

that the court of appeals’. decision has “created an unten-

able situation for those who must attempt to live in and

govern the disputed area.” Petitioners and amici raised

a similar argument in support of rehearing below. Pet.

App. 59. The court of appeals, in denying that request,

quoted the government’s observation that “despite a

decade of experience witha * * * checkerboard Reser

vation” after the court of appeals’ original ruling that

the Reservation had not been disestablished, “this area

of South Dakota has not experienced any of the prob-

lems described by the State, County, or amic2.” bid.

(citation omitted).

In point of fact, because of the alternative grounds

for Indian-country status of the lands at issue, the

checkerboard pattern pre-dates the court of appeals’

ruling on disestablishment, and would survive any deci-

sion on that issue by this Court. See, e.g., Pet. App. 245-

246 (noting longstanding federal exercise of criminal

29

jurisdiction over trust lands)."" As this Court has previ-

ously recognized, a checkerboard jurisdictional pattern

is not necessarily impracticable. See County of Yakima

v. Confederated Tribes & Bands of the Yakima Indian

Nation, 502 U.S. 251, 265 (1992) (parcel-by-parcel deter-

minations that state’s tax assessor was required to make

on checkerboard reservation were “not impracticable”

and “do not differ significantly from those he must make

off the reservation, to take account of immunities or ex-

emptions enjoyed, for example, by federally-owned,

state-owned, and church-owned lands”). And the evi-

dence in this case—which shows that the federal govern-

ment has long exercised criminal jurisdiction over lands

found by the court of appeals to constitute part of the

Yankton Sioux Reservation—demonstrates that the pat

'° One amicus brief implies that the question presented nevertheless

has relevance because the Tribe’s regulatory authority differs depend-

ing upon whether the land at issue is Indian country under Section

1151(c) or because it is part of a reservation. See Charles Mix Electric

Ass’n et al. Amicus Br. 10-11. None of the cases cited by the brief,

however, expressly discusses Section 1151(c), and the brief omits to

discuss whether the other alternative grounds (e.g., informal-reserva

tion status) for considering this land to be Indian country might also

give rise to differences in tribal regulatory authority. 7bid. The courts

below neither addressed nor recognized any relevant jurisdictional

distinctions between different types of Indian country, and no such

issue is presented for this Court’s review. In any event, this Court’s

precedents suggest that the precise type of Indian country does not

matter for jurisdictional purposes. The same general principles of

immunity from state taxation apply, for example, on any land that

constitutes Indian country, whether the land is a formal reservation, see

McClanahan v. Arizona State Tax Comm ’n, 411 U.S. 164, 179-181

(1973); is held in trust for a Tribe but is not part of a formally desig

nated reservation, see Citizen Band Potawatomi Indian Tribe, 498

U.S. at 511; or is an allotment still held in trust or restricted status, see

Sac & Fox Nation, 508 U.S. at 123.

30

tern here has not proven to be unworkable. Pet. App.

245-246. For that reason, and because the current Juris

dictional boundaries should remain irrespective of a de-

cision by this Court on the question presented, certiorari

is unwarranted.

4. Petitioners, and some of their amici, suggest that

certiorari is necessary in order to address the status of

an additional category of land, namely, allotted land that

passed into non-Indian hands after 1948, when 18 U.S.C.

1151 was enacted. See State Pet. 34-35; County Pet. 19;

Cities’ Amicus Br. at 1 n.2 & App.; Colin Soukup et al.

Amicus Br. 4-5; Wagner Community Sch. Dist. Amicus

Br. 2. But as the court of appeals made clear in re-

sponse to the rehearing petitions, no issue regarding

such land was “actually litigated or decided in this case.”

Pet. App. 55. Indeed, the panel revised its original opin-

ion to eliminate any possible implication that any such

issue had been decided. /d. at 56. Because this is “a

court of review, not of first view,” Cutter v. Wilkinson,

544 U.S. 709, 718 n.7 (2005), petitioners’ arguments

about this fourth category of land provide no reason to

grant certiorari.

5. Finally, should the Court nevertheless decide to

grant certiorari to address the disestablishment ques-

tion, it should deny the Tribe’s conditional cross-peti-

tion. The conditional cross-petition presents the ques-

tion whether the present-day Reservation includes all

lands that were within the original 1858 Reservation

boundaries, except for those ceded to the United States

in the 1894 Act. See Conditional Cross-Pet. i. The addi-

tional lands at issue in the Tribe’s conditional cross-peti-

tion are once-allotted lands that passed out of trust sta-

tus and were sold to non-Indians. The United States has

long exercised jurisdiction only over trust lands, not

3

these. Pet. App. 246-247. Although the United States

supported the Tribe’s position on this issue, the question

does not warrant certiorari. Like the disestablishment

issue presented by petitioners, the issue the Tribe raises

involves only the application of settled law to this partic-

ular case. See Sup. Ct. R. 10. There is no need to re-

view the disestablishment question, but even if the

Court did grant review of that question, there would be

no need to expand the scope of review to include other

aspects of the court of appeals’ reservation-specific and

fact-bound ruling.

As the court of appeals observed, “both sides have

followed an all or nothing strategy” in this case. Pet.

App. 248. The outcome now lies between those poles in

a manner that essentially preserves the jurisdictional

status quo as it has long existed. Review of any or all of

the court of appeals’ decision is unwarranted and would

serve little purpose. The Court therefore should deny

certiorari, just as it did 11 years ago when petitioners

and the Tribe filed certiorari petitions raising the same

issues at an earlier stage of this litigation.

CONCLUSION

he petitions for writs of certiorari should be denied

If any of the petitions are granted, the conditional cross

petition should be denied.

Respectfully submitte

.EAL KUMAR KATYAI

Acting Solicitor Gen

IGNACIA S. MORENO

Assistant Attorney Ger

KATHRYN E. KOVACS

KATHERINE W. HAZAI

r , 4

i ttorneys