Petition for Writ of Certiorari — Yankton Sioux Tribe v. Daugaard

/ Supreme Court U.S.

c FEB 22 2011

No. 1 01098

_ ————OFFRE OF THE CIERR

Jn the

Supreme Court of the Anited States

YANKTON SIOUX TRIBE, AND ITS INDIVIDUAL MEMBERS,

Cross-Petitioners

V.

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, ET AL.,

Cross- Respondents

On Conditional Cross-Petition for a Writ of

Certiorari to the United States Court of Appeals

for the Eighth Circuit

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

RICHARD A. GUEST PAUL D. CLEMENT

NATIVE AMERICAN Counsel of Record

RIGHTS FUND DARYL L. JOSEFFER

1514 P Street NW CANDICE CHIU

Suite D KING & SPALDING LLP

Washington, DC 20005 1700 Pennsylvania Ave., NW

(202) 785-4166 Washington, DC 20006

pclement@kslaw.com

(202) 737-0500

Counsel for Cross-Petitioners

February 22, 2011 * additional counsel listed on inside cover

CHARLES ABOUREZK

ABOUREZK & ZEPHIE!

P.O. Box 9460

2020 W. Omaha Stre«

Rapid City, SD 577¢

605) 342-0097

QUESTION PRESENTED

Whether the Yankton Sioux § Reservation

includes all lands within its original boundaries

other than those the Trnbe ceded to the United

States for sale to non-Indians in the Act of 1894. ch

290, 28 Stat. 286, 314-19

PARTIES TO THE PROCEEDING

Cross-petitioners are the Yankton Sioux Tribe

and its individuai members

Cross-respondents 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

TABLE OF CONTENTS

QUESTION PRESENTED .......

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES .

OPINIONS BELOW

JURISDICTION ........ ,

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE.

A. Historical Background

B. Procedural Background

REASONS FOR GRANTING THE

CONDITIONAL CROSS-PETITION

CONCLUSION

TABLE OF AUTHORITIES

Cases

Hagen v. Utah,

510 U.S. 399 (1994)

Mattz v. Arnett,

412 U.S. 481 (1973

Solem v. Bartlett,

465 U.S. 463 (1984)..

South Dakota v. Yankton Stoux Trib

522 U.S. 329 (1998).......

South Dakota v. Yankton Stoux Tribe

530 U.S. 1261 (2000).

United States v. Dion,

476 U.S. 734 (1986)...

Yankton Sioux Tribe v. Gaffey,

188 F.3d 1010 (8th Cir. 1999)

Yankton Stoux Tribe v. Gaffey,

14 F. Supp. 2d 1135 (D.S.D. 1998)

Yankton Sioux Tribe v. Podhradsky,

606 F.3d 994 (8th Cir. 2010)....

Yankton Stoux Tribe v. Podhradsky,

606 F.3d 985 (8th Cir. 2010)

Yankton Sioux Tribe v. Podhradsky,

529 F. Supp. 2d 1040 (D.S.D. 2007

Statutes

18 U.S.C. § 1151

25 U.S.C. § 462

28 U.S.C. § 1254(1)

Act of August 15, 1894

28 Stat. 286...

Act of February 13, 1929, ch. 1

45 Stat. 1167

General Allotment Act of 1887

24 Stat. 388

Indian Reorganization Act of 1934

48 Stat. 984

Pub. L. 106-462, § 106, 114 Stat

Treaty of April 19, 1858

Other Authorities

Report of the Yankton Indian

(Mar. 31, 1893), S. Exec. Do

No. 27

“ae

Kxec. Order No. 2363. Apr

Exec. Order No. 4406, Mar. 30, 1921

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The amended opinion of the court of appeals is

reported at 606 F.3d 994 and reproduced at Pet.

App. 1-51.! The court of appeals’ order on rehearing

is reported at 606 F.3d 985 and reproduced at Pet.

App. 52-70. The order of the district court is

reported at 529 F. Supp. 2d 1040 and reprinted at

Pet. App. 122-163.

An earlier opinion of the Eighth Circuit in this

case is reported at 188 F.3d 1010 and reprinted at

Pet. App. 199-249. The district court’s earlier order

is reported at 14 F. Supp. 2d 1135 and reprinted at

Pet. App. 250-320.

JURISDICTION

The court of appeals entered judgment on May 6,

2010, and denied timely petitions for rehearing and

rehearing en banc on September 20, 2010. Pet. App.

321-322. On December 14, 2010, Justice Alito

extended the time for filing a petition for a writ of

certiorari to January 18, 2011, and the petitions

were filed on that date. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Treaty of April 19, 1858, 11 Stat. 743, is

reprinted at Pet. App. 324-36.

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

in No. 10-929

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

28 Stat. 286, 314-319, ratifying the agreement

between the Yankton Sioux Tribe and United States

is reprinted at Pet. App. 337-351.

The statute defining “Indian country,” 18 U.S.C.

§ 1151, provides:

Except as otherwise provided in sections 1154

and 1156 of this title, the term “Indian country”,

as used in this chapter, means (a) 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 mnghts-of-way

running through the _ reservation, (b) all

dependent Indian communities within the

borders of the United States whether within the

original or subsequently acquired territory

thereof, and whether within or without the

limits 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.

STATEMENT OF THE CASE

In South Dakota v. Yankton Stoux Tribe, 522 U.S.

329 (1998), this Court held that the Yankton Sioux

Tribe’s sale of approximately 168,000 acres of

reservation land to the United States in 1894 had

deprived those acres of reservation status and

thereby diminished the reservation. On remand, the

parties disputed whether the other 262,300 acres

within the original reservation remained reservation

land, or whether Congress had _ completely

disestablished the reservation in 1894. The court of

appeals did not fully agree with either party. The

court held that Congress did not disestablish the

reservation. But it also held that Congress intended

in 1894 that subsequent sales of land to non-Indians

would further diminish the reservation, and that

such sales had caused the reservation to shrink to a

fraction of its 1894 size.

When the Eighth Circuit first reached that

conclusion years ago, both sides petitioned for

review, and this Court denied the petitions. In the

ensuing 12 years, the litigation has continued, and

the Eighth Circuit has now applied its earlier

decision to determine the status of particular

parcels. The Tribe has not filed its own petition from

that decision because, during the past 12 years, all

parties have adjusted to the practical realities on the

ground. That makes this Court’s review of the

Eighth Circuit’s fact-bound decision unnecessary, as

the Eighth Circuit simply applied its earlier decision

in this case and well-established precedents of this

Court to specific parcels.

Nonetheless, state and local entities have filed

petitions for a writ of certiorari so that they can

continue to argue that Congress completely

disestablished the reservation in 1894. This Court

should deny those petitions. But if it were to grant

them, it should also grant this conditional cross-

petition so that the Court would not find itself

procedurally hamstrung from adopting any of the

parties’ positions concerning congressional intent

and from giving congressional intent its full effect.

Disestablishment or diminishment of a

reservation turns on a judgment about congressional

intent — here, the intent of the Congress that

enacted the 1894 Act. After this Court’s decision in

Yankton, there are, at least in theory, three

possibilities: Congress intended to diminish the

reservation only to the extent of the lands it

purchased for sale to non-Indians in 1894, as the

Tribe has argued; Congress intended further

diminishment, as the court of appeals concluded; or

Congress intended to completely disestablish the

reservation, as petitioners argue. If this Court takes

up the question, it should be free to draw whichever

of those conclusions it wishes after fully considering

the question on the _ merits. Granting this

conditional cross-petition would ensure that the

Court would not be procedurally barred from doing

SO.

As explained below, the same textual and

contextual evidence of congressional intent that

bears on petitioners’ complete disestablishment

theory is also relevant to the Tribe’s conditional

cross-petition. That evidence shows that Congress

intended to address only the 168,000 acres of ceded

land, and had no intent, much less the requisite

clear intent, to affect the reservation status of the

remaining lands. Thus, the same evidence that

rebuts petitioners’ complete disestablishment theory

also supports the Tribe’s understanding that

Congress has not further diminished the reservation.

Especially against that backdrop, it would make

little sense to determine whether Congress decided

to retain a diminished reservation without fully

considering the closely interrelated question of what

diminished reservation Congress had in mind.

1

A. Historical Background

1. An 1858 Treaty between the Yankton Sioux

Tribe and the United States established the original

boundaries of the Yankton Sioux Reservation. Pet.

App. 324. The Tribe ceded to the United States 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 chanfed

policies in the Dawes Act or General Allotment Act

of 1887, ch. 119, 24 Stat. 388, repealed in part, Pub.

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

Dawes Act reflected a federal policy of opening up

lands for settlement, and breaking up reservations

into smaller pieces, 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 statutes under which

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. The Tribe thereby

agreed to surrender approximately 168,000

unallotted acres from its 430,405-acre reservation,

leaving approximately 262,300 acres of allotted

lands. Article VIII of the agreement required the

United States to set aside from sale to non-Indians

1,000 acres of the ceded land for “agency, schools,

and other purposes” for the support of the Tribe. Id

at 342-343.

3. By the early twentieth century, the issuance

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

period had duly expired, “left many Indians

landless.” Jd. at 11. The federal government also

acknowledged that its policy of encouraging

assimilation had failed in light of the Indians’

“cultural resilience.” /d. The government therefore

extended, re-extended, and then permanently

extended the 25-year trust periods on parcels of the

Yankton Sioux Reservation that it held in trust. See

id. at 10 (citing Exec. Order No. 2363, Apr. 20, 1916;

Exec. Order No. 4406, Mar. 30, 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.), extended those policies. In

addition to putting an end to further allotment and

extending the trust periods for outstanding

allotments indefinitely, the IRA authorized the

Secretary of the Interior to acquire additional lands

in trust to create or add to tribal reservations.

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 cross-petition involves the proceedings on

remand from this Court’s decision in South Dakota v

Yankton Sioux Tribe, 522 U.S. 329, 357 (1998). In

Yankton, this Court held that the Tribe’s cession of

168,000 acres of unallotted lands to the United

States had diminished the original 1858 reservation

See id. at 345. The Court then concluded that,

because a proposed waste site lay on ceded land, it

was not within the diminished reservation and

therefore not subject to federal environmental

regulation. Id. at 340, 358.

This Court did not 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 pointed to Article VIII,

which required the United States to reserve lands

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

observed that it was “difficult to imagine” why

Congress would have reserved such agency trust

lands “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, which

prohibited the sale of liquor on ceded lands or other

lands within the reservation, “signalled] a

jurisdictional distinction between reservation and

ceded land.” Id.

2 On remand, and after the case was

consolidated with another one concerning the

reservation’s boundaries, the district court conducted

an evidentiary hearing and held that the 1894 Act

diminished the reservation only insofar as the Tribe

had ceded the unallotted lands for sale to non-

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

reasoned that nothing in the language of the

agreement supported complete disestablishment of

the reservation, whereas several articles strongly

indicated that a diminished reservation would

persist. See id. at 287-304.

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

funallotted] lands’; they did not discuss complete

disestablishment or further diminishment beyond

the unallotted lands. Jd. 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 rd. at 276-281. Based on

the 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. Jd

at 316.

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 240-243. At a bare minimum,

the Eighth Circuit noted, the agency trust lands —

which the United States returned to the Tribe in

1929 — 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

lands; rather, the court found the reservation further

diminished by subsequent sales of allotted lands to

non-Indians — lands that, according to the court,

Congress in 1894 “foresaw would pass into the hands

of the white settlers and homesteaders.” Id. at 243.

Both the State and the Tribe sought certiorari,

with the State maintaining its total

disestablishment position and the Tribe maintaining

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 opposed certiorari,

noting the absence of a clear split and the

interlocutory posture of the case. Nonetheless, the

United States stated that it “agree[d] with the Tribe”

that the reservation has not been further

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

at 21. The United States also noted that, if the

Court were to grant certiorari, 1t should “grant both

petitions, in order to ensure that it has before it the

full range of issues going to both diminishment and

LO

disestablishment of the Reservation.” Jd. at 27 n.10

This Court denied review. See South Dakota v

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

3. On remand, the district court held that

various trust lands 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.

On appeal, the Eighth Circuit largely affirmed.

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

diminished reservation included (1) agency trust

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

lands taken into trust under the 1934 IRA. ZId. 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). Jd. 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.

4. The State defendants, County defendants,

and Southern Missouri Recycling and Waste

Management District filed petitions for certiorari

lL}

seeking review of one issue: whether the 1894 Act

wholly disestablished the Yankton Sioux

Reservation.

REASONS FOR GRANTING THE

CONDITIONAL CROSS-PETITION

In the 12 years since the Eighth Circuit’s earlier

decision on which this Court denied certiorari, the

practical reality on the ground has adjusted to

reflect the Eighth Circuit’s basic ruling. For that

reason, and others, the Tribe has decided not to file

its own petition for certiorari as it did 11 years ago.

The Tribe’s brief in opposition outlines the reasons

this Court should decline to review the Eighth

Circuit’s fact-bound decision. If this Court were to

grant the pending petitions, however, it should also

grant this conditional cross-petition so that it could

fully assess and apply Congress’s intent.

When Congress enacted the 1894 Act, it could,

at least itn theory, have intended one of four

consequences: (1) to leave the 1858 reservation

intact; (2) to diminish the reservation only to the

extent of the unallotted lands it purchased from the

Tribe for sale to non-Indian settlers; (3) to diminish

the reservation further; or (4) to disestablish the

reservation entirely. This Court already rejected the

first of those alternatives, and the third and fourth

would be options for the Court if it granted the

petitions. This conditional cross-petition puts the

other remaining option squarely before the Court, so

that it would not be procedurally barred from

reaching any of the possible conclusions about

congressional intent or the current bounds of the

reservation.

12

1. The petitions and this conditional cross-

petition all rely on overlapping evidence of

congressional intent. “The first and governing

principle is that only Congress can divest a

reservation of its land and diminish its boundaries,”

and “[o]nce a block of land is set aside for an Indian

reservation ... the entire block retains its reservation

status until Congress explicitly indicates otherwise.”

Solem, 465 U.S. at 470 (emphasis added). Moreover,

Congress's intent to diminish a reservation must be

“clear and plain,” United States v. Dion, 476 U.S.

734, 738 (1986), meaning that it must be “expressed

on the face of the Act or be clear from the

surrounding circumstances and legislative history.”

Mattz v. Arnett, 412 U.S. 481, 505 (1978).

Accordingly, the “‘most probative evidence” of either

disestablishment or diminishment is “the statutory

language used to open the Indian lands,” as well as

“the historical context.” Yankton, 522 U.S. at 344

(quoting Hagen v. Utah, 510 U.S. 399, 411 (1994)).

Petitioners have attempted to support their total

disestablishment theory with the 1894 Act, reports

of the Yankton Indian Commission that negotiated

the agreement, and the legislative history and

negotiations surrounding the agreement. See, e.g.,

Pet. App. 229-230. The Tribe has relied on those

same sources in arguing for the conclusion that

Congress intended to preserve the reservation except

with respect to the lands the Tribe ceded for sale to

non-Indians.

The district court — in agreement with the

Tribe — found “strong textual and contemporaneous

evidence ... establishing that the Yanktons’ allotted

lands retained reservation status.” Jd. at 307. For

13

example, Article V of the 1892 agreement provides

for the continued funding of tribal courts of justice

and other local institutions, consistent with the

continuing reservation status of allotted lands. Id.

at 340-341. Because that provision reflects an

expectation that the Tmbe would maintain a

sovereign existence, it “counsel[s] against finding the

reservation terminated.” Yankton, 522 U.S. at 350.

Similarly, Article VIII reserves from sale those

surplus lands “as may now be occupied by the United

States for agency, schools, and other purposes.” Pet.

App. 342-343. As this Court already determined, it

is “difficult to imagine” why Congress would have

reserved lands for that purpose “if it did not

anticipate that the opened area would remain part of

the reservation.” Yankton, 522 U.S. at 350 (quoting

Solem, 465 U.S. at 474).

This Court further noted in Yankton that certain

Articles of the Act “signalfed] a jurisdictional

distinction between reservation and ceded land.” IZd.

at 350. The liquor prohibition in Article XVII

prohibits the sale or offering of “intoxicating liquors”

on “any of the lands by this agreement ceded and

sold to the United States” or “any other lands within

or comprising the reservations of the Yankton Sioux

or Dakota Indians as described in the [1858] treaty.”

Pet. App. 347 (emphasis added).

The context of the Agreement further supports

the conclusion that Congress did not intend to affect

the reservation status of non-ceded lands. In the

negotiations leading up to the 1894 Act, the parties

“did not discuss the future boundaries of the

reservation or the relinquishment of the entire

reservation by the Tribe, but memorialized only the

14

consent of the Tribe to sell the surplus lands

remaining after the allotment process was

completed.” Id. at 276 (emphasis added). As

Commissioner Cole represented to the Tribe at the

first council meeting: “The Great White Father ..

wants to give you a chance to sell your surplus lands

.... He does not want you to sell your homes that he

has allotted to you. He wants you to keep your

homes forever. He only wants you to sell your

surplus lands for which you have no use.” Report of

the Yankton Indian Commission (Mar. 31, 1893), S.

Exec. Doc. No. 27, at 49 (emphases added).

Similarly, Commissioner Adams_ noted, “We

understand that you each received an allotment of

land on which to make a home.... We also

understand that you own, outside of your allotments,

a large quantity of land in common. It is this land

that you own in common that we were appointed by

the Great Father to talk to you about.” Jd. at 48; see

also id. at 81 (Commissioner Cole asked the Tribe to

accept “the sale of the surplus lands and the opening

of this reservation to white settlement,” not

disestablishment of the reservation) (emphasis

added).

Each of those statements reflects a targeted

intent to negotiate only the sale of the unallotted

lands, without affecting the other reservation lands.

Indeed, “[a]t no point in the Commissioners’ reports

is there any mention by a commissioner or by a

Yankton Sioux, of any anticipated change in the

reservation boundaries or of a disestablishment or

termination of the Yankton Sioux Reservation.” Pet.

App. 284.

15

When the Commissioners submitted the

agreement to Congress, they again confirmed that

the Yankton Sioux Indians “were not selling their

whole reservation, but less than two-fifths of it.” Id.

at 236 (quoting S. Exec. Doc. No. 27, at 13). The

preamble to the 1894 Act similarly recites that the

Tribe “is willing to dispose of a portion of the land

set apart and reserved to said tribe” in 1858. Id. at

338 (emphasis added). As the district court noted,

that provision reflects congressional intent to accept

the will of the Tribe to sell only a portion of its

reservation, not to disestablish or diminish the

remainder. Jd. at 148-150.

That interpretive evidence not only refutes

petitioners’ total disestablishment position, it also

supports the Tribe’s view that Congress did not

diminish the reservation beyond the cession of

unallotted lands for sale to non-Indians. At this

juncture, of course, the question of who has the

better of the argument based on those sources is

beside the point. The critical point is that the same

basic sources are relevant to the issues raised in the

petitions and this conditional cross-petition. If the

Court were to grant the petitions, there would be no

reason to truncate either the inquiry into legislative

intent or the relief available — 1.e., there would be

no reason to grant the petitions and not this

conditional cross-petition.

2. The lower courts recognized the relationship

between petitioners’ arguments concerning

disestablishment and the Tribe’s argument. See,

e.g., id. at 33-34; rd. at 226-227. The United States,

for example, has argued that the conclusion that the

“Reservation continues to encompass all lands that

16

were not ceded ... was supported by the fact that

nothing in the explicit language of the 1894 [Act]

supports disestablishment.” U.S. CA8 Gaffey Br. at

1.

In this Court, petitioners argue that the court of

appeals’ decision is “internally contradictory” to the

extent that it concludes that the reservation was not

disestablished but does not include all allotted acres,

because, petitioners argue, private sales of allotted

lands cannot deprive those lands of reservation

status. State Pet. 31; see also County Pet. 21-22; S.

Mo. Recycling & Waste Mgmt. Dist. Pet. 9-10. That

is not necessarily true, as the Tribe explains in its

brief in opposition. But petitioners’ all-or-nothing

approach confirms the close relationship between the

questions presented in the petitions and this

conditional cross-petition. Petitioners certainly

ought not be able to argue both that the court of

appeals’ middle-ground position is untenable and

that this Court should not consider the other

alternative position.

3. For these reasons, if this Court were to grant

the petitions, it should also grant this conditional

cross-petition to ensure that its consideration of the

full range of issues and remedies is unfettered and to

eliminate any risk that it would face a procedural

bar to deciding the case in accordance with its own

view of Congress’s intent in the 1894 Act. There is

no reason for this Court to limit its options to such

an extent that, following full briefing and

consideration on the merits, the Court would have no

choice but to consider only the State’s

disestablishment position, and the result reached by

the court of appeals, bi

view of Congress’s intent.

CONCLUSION

This Court should deny the petitions for a wi

of certiorari in Nos. 10-929, 10-931, and 10-932. But

if this Court were to grant those petitions, it shou

also grant this cross-petition

Respectfully

Richard A. Guest Paul D. Clement

NATIVE AMERICA Counsel of Reco

RIGHTS FUND Daryl L. Joseffe:

1514 P Street NV Candice Chiu

Suite D KING & SPALDING

Washington, DC 1700 Pennsylvania

(202) 785-416¢ NW

Washington, D.(

pclement@kslaw.

202) 737-0500

}HARLES ABOUR!

ABOUREZK &

ZEPHIER, P.C

P.O. Box 9460

1020 W. Omaha Str

Rapid City, SD

605) 342-009