Amicus Curiae Brief — Middlemist v. Babbitt

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IN THE FICE OF THE CLERK |

Supreme Court of the Wuited Statex--~

OCTOBER TERM, 1994

Ross MIDDLEMIST, et al.,

Petitioners,

SECRETARY OF THE UNITED STATES DEPARTMENT OF

INTERIOR. BRUCE BABBITT, et al

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR LAKE COUNTY, MONTANA,

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

LARRY NISTLER

Lake County Attorne

106 4th Avenue East

Polson, Montana 59860

(406) 883-6211

Tom D. TOBIN

TOBIN LAW OFFICES, P.C

P.O. Box 739

422 Main Street

Winner, South Dakota

(605) 842-2500

YF DS80-O730

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

PA SPE BUTE ee ns risinciveicctnstinccccencinnsntreratecs ii

INTEREST OF AMICUS. CURIAE. .................0::-.-00000-- 1

SUMMARY OF ARGUMENT uu... eee 3

re IT catia da oanincies eas aakananidadatie telesaeckascsasendneeeledss 4

I. NATIONAL FARMERS UNION AND IOWA

MUTUAL HAVE NO APPLICATION IN THE

ABSENCE OF LITIGATION PENDING IN

SE, SG sahictaptteee aesbascneesernrtetrennrsnoen: 4

Il. THE VIEWS OF THE UNITED STATES

SHOULD BE ASSESSED IN THE LIGHT OF

THEIR PREVIOUS ARGUMENTS ................ 7

NEY wackideon eke actneectinternenieiiiost aT ee 13

APPENDIX

Act of April 23, 1904 (33 Stat. 302) la

li

TABLE OF AUTHORITIES

CASES: Page

Alabama Pub. Serv. Comm’n v. Southern R.R. Co.,

BAS US, BEA URGE) osc cncccccscces cesses 5

Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d

808 (7th Cir. 1998) .............--..----+-----ecnseceesneonesenee 6

Blaze Construction Inc. v. U.S., 27 Fed. Cl. 646

(1GOB) nn ccnviensncnceaneronnssncesernsceaduorenunsensaspencesnnenscnsnaiansos bi, ka

Brendale v. Confederated Tribes & Bands of

Yakima Indian Nation, 492 U.S. 408 (1989) ..10, 11, 15

2rown v. Washoe Housing Authority, 835 F.2d

1827 (10th Cir. 1988) ..........--....----------ec---eeeee00-* 12

Burlington Northern Railroad Co. v. Crow Tribal

Council, 940 F.2d 1239 (9th Cir. 1991) ...........---. 12

Colorado River Water Conservation Dist. v. Un ited

States, 424 U.S. 800 (1976) ...........-----------------++ . 5, 6

Confederated Salish & Kootenai Tribes v. Namen,

665 F.2d 951 (9th Cir. 1982), cert. denied, 459

U.S. OTT CIGBR) .----anecncccsa canescens 12

County of Yakima, et al. v. Confederated Tribes

and Bands of the Yakima Indian Nation,

US. bee te | 6 6h) eee 11

Duro v. Reina, 495 U.S. 676 (1990) -......-..------------ 9,10, 11

Duncan Energy Co. v. The Three Affiliated Tribes,

27 F.3d 1294 (8th Cir. 1994) .......-.......----------------+- 4,6, 11

Hagen v. Utah, —— US. —, 114 S.Ct. 958

(1QOA) 22.n.nceocccenneenenseneeosaneeneassnnsensensoaeassnasnsecesannnnsens 2,12

lowa Mutual Insurance Company v. LaPlante, 480

if 2 Bi: | | Ree Ae) oe

Juidice v. Vail, 480 U.S. 327 (1977) .....-------------------- 4

Middlemist v. Secretary of the U.S. Dept. of In-

terior, 824 F.Supp. 940 (D. Mont. 1993) -.....-..---- 4,11

Middlemist v. Secretary of the U.S. Dept. of In-

terior, 19 F.2d 1318 (9th Cir. 1994), petition for

cert. filed (U.S. July 5, 1994) (No. 94-42) _....:.. 2

Montana v. United States, 450 U.S. 544 (1981)... 9,10

Moses H. Cone Memorial Hospital v. Mercury Con-

struction Co., 460 U.S. 1 (1983) -...--. ellie aia 5

National Farmers Union Insurance Company v.

Crow Tribe of Indians, 471 U.S. 845 (1985) ...... passim

lil

TABLE OF AUTHORITIES—Continued

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978) Ect See, MR 9

Sanders v. Robinson, 864 F.2d 630 (9th Cir.

1988) 12

Smith v. Moffett, 947 F.2d 442 (10th Cir. 1991) l

Snowbird Construction Co., Inc. wv. U.S., 666

F.Supp. 1437 (D. Idaho 1987) 12

South Dakota v. Bourland, —— U.S. ——, 113

S.Ct. 2309 (1993) 9,10, 11, 13

Stock West, Inc. v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221 (9th Cir.

1989) 12

Stock West Corp. v. Taylor, 737 F.Supp. 601

(D. Or. 1990) 12

Stock West Corp. v. Taylor, 964 F.2

Cir. 1992) 12

Texaco Inc. v. Zah, 5 F.3d 1374 (10th Cir. 1993) 65

Tom’s Amusement Co., Inc. v. Cuthbertson, 816

F.Supp. 403 (W.D.N.C. 1993) 12

Twin City Construction Co. of Fargo v. Turtl

Vountain Band of Chippewas, 866 F.2d 971 (8t

Cir. 1989)

United States v. Cherokee Nation, 480 U.S.

(1987) 13

United States v. Plainbull, 957 F.2d 724 (9th Cir.

1992) ~

Utah Div. of State Lands v. United States, 482 U.S.

193 (1987) 12-13

Ute Indian Tribe v. State of Utah, 716 F.2d 1298

(10th Cir. 1983), 773 F.2d 1087 (10th Cir.

1985), cert. denied, 479 U.S. 994 (1986) 12

Wellman v. Chevron U.S.A., Inc., 815 F.2d 577

(9th Cir. 1987) Saeki 1

Younger v. Harris, 401 U.S. 38 (1971)

STATUTES:

Act of April 23, 1904, 33 Stat. 302 .................0......... 1

Presidential Proclamation of May 22, 1909, 36

Stat. 2494 ..... CAs TE ETE SEL OR RON OOOO 2

ee

iv

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS: Page

Brief for the United States, Duro v. Reina, 495

U.S. 676 (1990) (No. 88-6546) -.......................--. 9

Brief for Federal Appellees, Middlemist v. Secre-

tary of the U.S. Dept. of Interior, 19 F.3d 1318

(9th Cir. 1994) (No. 93-35315) ................--...--.---- 7,11

Brief for the United States as Amicus Curiae Sup-

porting Respondents, Jowa Mutual Ins. Co. v.

LaPlante, 480 U.S. 9 (1987) (No. 85-1589) ....4, 5, 7, 10

Brief for the United States, Montana v. United

States, 450 U.S. 544 (1981) (No. 79-1128) ........ 9

Brief for the United States as Amicus Curiae Sup-

porting Respondents, National Farmers Union

Ins. Cos. v. Crow Tribe of Indians, 471 U.S.

SAT CUBE) Ce, De cies ccc nsereenccstnessnese- 4,7

Memorandum for the United States, Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191 (1978)

CBR, TOTTI) ancien cnn nnccn ens ccrennenssneeserinssnstinsennnnne 9

Brief for the United States, South Dakota v. Bour-

land, U.S. ——, 118 S.Ct. 2309 (1993)

CO, DE a asannsncssiicrci erent 9

ERWIN CHEMERINSKY, FEDERAL JURISDICTION 663

I oo oneceneesterseseckansneeegonuhnieniesentotamsnsaswmensidesannetesmetinens 5

Rte Fee Een 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-42

Ross MIDDLEMIST, ef al.,

ag Petitioners,

SECRETARY OF THE UNITED STATES DEPARTMENT OF

INTERIOR, BRUCE BABBITT, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR LAKE COUNTY, MONTANA,

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Amicus curiae Lake County, through its respective law

officer, respectfully submits this brief pursuant to S. Ct. R.

37.5 in support of the petition for writ of certiorari.

INTEREST OF AMICUS CURIAE

The concern that prompts the filing of this amicus

curiae brief can be simply stated. Much of the land today

within Lake County, Montana, was at one time within

the original Flathead Reservation. By Act of April 23,

1904. 33 Stat. 302 (Am. App. la-7a), some lands of

the Reservation were allotted to individual Indians, and

the unallotted lands opened to public settlement and entry.

2

(Approximately one million acres were opened in this

manner on May 2, 1910, pursuant to the Presidential

Proclamation of May 22, 1909, 36 Stat. 2494). As a

result, only about half the original acreage of the Flathead

Reservation is still held in trust for tribes or tribal mem-

bers, and the remainder is held in fee, primarily by non-

members (more than three-fourths of the population is

non-members).

In short, the demographics of Lake County are not un-

like those recently set ferth in this Court in Hagen v.

Utah, US. , 114 S. Ct. 958, 970 (1994).

Because Lake County has already iabored under the

serious “burdens” noted in Hagen for over a decade,

(Magen at 970), the decision of the Court of Appeals

promises to now almost effectively preclude the orderly

administration of local government.

In this instance, the extent of the problem for any unit

of local government is generally made clear in the tribal

notice:

Private individuals; Corporations, Local, County,

State, Tribal and Federal Government Agencies who

are going to be doing any type of construction work

on or near any natural streams, rivers, lakes, or wet-

lands within the Flathead Reservation must submit

an application and obtain an approved permit before

any disturbance of the bed and banks of these water-

ways occurs.

Pet. App. A-47, Middlemist v. Sec. of the U.S. Dept. of

Interior, 19 F.3d 1318 (9th Cir. 1994) petition for cert.

filed, (U.S. July 5, 1994) (No. 94-42) (emphasis added).

Other ordinances, just as sweeping in scope, related and

unrelated, are being passed and federally approved on a

regular basis on this and other Indian reservations across

the country—and nearly all are premised upon an asser-

tion of substantial tribal jurisdiction over non-members

and other non-tribal entities. As a result, routine activity

3

of all sorts that would have been undertaken and com-

pleted as a matter of course a year ago, has been deferred,

placed on hold or, in many instances, simply cancelled

(general development, roadwork, dges, and so forth).

Threats of complex litigation are never enthusiasticaily

received by the average citizen. The predictable response

of doing nothing usually seems preferable. In most in-

stances, it is at least the more affordable option. But for

those who cannot wait and who still trust the federal

courts “to secure the just, speedy, and inexpensive deter-

mination of every action” (Fed. R. Civ. P. 1), the choice

here is misleading in the extreme. If everyone must now

sue or be sued in a non-representative forum before fed-

eral claims for relief will be granted (or even enter-

tained), when substantial rights or liberties are at stake in

myriad fact situations, local government cannot even plan

or promise to fulfill duties and obligations reasonabty

expected. In the absence of some specific Congressional

directive, nothing in National Farmers Union Insurance

Company y. Crow Tribe of Indians, 471 U.S. 845 (1985)

or Jowa Mutual Insurance Company v. LaPlante, 480

U.S. 9 (1987) requires such an unworkable and unjust

federal mandate.

SUMMARY OF ARGUMENT

The principles of comity and judicial economy animat-

ing National Farmers Union and lowa Mutual have no

application in the absence of litigation pending in tribal

court. The text of both National Farmers Union and lowa

Mutua! undermines any notion that pending litigation Is

not an absolute prerequisite io the application of the

doctrine.

4

ARGUMENT

I. NATIONAL FARMERS UNION AND IOWA MU-

TUAL HAVE NO APPLICATION IN THE ABSENCE

OF LITIGATION PENDING IN TRIBAL COURT.

It is undisputed that National Farmers Union and

Iowa Mutual are premised on the fact that litigation was

pending in tribal court at the time that federal actions

were commenced. Even the “questions presented” to this

Court by the United States were structured in terms of a

“claim pending” and a request to “enjoin” tribal proceed-

ings. Brief for the United States as Amicus Curiae Sup-

porting Respondents, Jowa Mutual Ins. Co. v. LaPlante,

480 U.S. 9 (1987) (No. 85-1589); Brief for the United

States as Amicus Curiae Supporting Respondents, Na-

tional Farmers Union Ins. Cos. v. Crow Tribe of Indians,

471 U.S. 845 (1985) (No. 84-320). Nothing in the text

of the opinions can fairly be cited to support or even

indicate a mer expansive reading was intended or per-

missible. Hey. che district court simply thought general

policy reasons and precedent in the circuit justified such

a result. Middlemist v. Secretary of the U.S. Dept. of

Interior, 824 F. Supp. 940, 944 (D. Mont. 1993). Evi-

dently the Court of Appeals agreed and other circuits

have also adopted this view without detailed analysis.

Duncan Energy Co. v. The Three Affiliated Tribes, 27

F.3d 1294 (8th Cir. 1994) (Beam, J. at 1300 and Loken,

J. concurring at 1303). Importantly, the text of both

National Farmers Union and Iowa Mutual actually under-

mines any notion that pending litigation is not an abso-

lute prerequisite to the application of the doctrine.

First, National Farmers Unior cites Juidice v. Vail, 430

U.S. 327 (1977), in setting forth the delimiting principles

of the abstention doctrine established in Younger v.

Harris, 401 U.S. 38 (1971). National Farmers Union,

471 U.S. at 856 0.21. This narrowly tailored doctrine

makes no sense in the absence of other pending litigation.

Indeed, even the suggestion has been rejected for decades:

5

[I]t was never a doctrine of equity that a federal

court should exercise its judicial discretion to dismiss

a suit merely because a state court could entertain it.

Alabama Pub. Serv. Comm'n v. Southern R.R. Co., 341

U.S. 341, 361 (1951) (emphasis added).

Secondly, the concurring and dissenting Opinion in

lowa Mutual (by the author of the opinion in National

Farmers Union), defines this understanding exclusivels

in terms of pending litigation. Jowa Mutual, 480 U.S. at

20 (Stevens, J. concurring and dissenting). (Of course,

we recognize that the absence of pending litigation was

not actually an issue in /ewa Mutual—almost by defi-

nition).

Thirdly, Justice Marshall in Jowa Mutual referenced

the initial issue in the context of pending litigation when

he explicitly stated:

[T]he rule is analogous to principles of abstention

articulated in Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800 (1976).

Id. at 16 n.8. See also, Brief for the United States, Jowa

Mutual at 1-2, 21-22, (citing Colorado River).

There is absolutely no question that Colorado River

abstention is expressly premised on pending litigation.

Nor is there any doubt that such a principle can be simpl;

ignored for other perceived public policy purposes. In

fact, it is generally recognized that the opposite is the

case:

The Supreme Court, however, in two major deci-

sions—Colorado River Water Conservation District

v. United States and Moses H. Cone Memorial Hos-

pital v. Mercury Construction Co. declared that such

abstention is appropriate only in very limited, excep-

tional circumstances.

ERWIN CHEMERINSKY, FEDERAL JURISDICTION 663 (1989)

(emphasis added).

1S aspect of the exhaustion issue (‘most

nr » x >t » > Sy ) "a »; “ > Yr 1]

ous ) and indeed, even cite Colorado River generally

Duncan Energy Co., (Loken, J. concurring at 1303)

\nd finally, other recent cases recognize the importance

f the doctrine generally and have decided to proceed

Ore cautiously on a case by case determination. See

nerally, Altheimer & Gray vy. Sioux Mfe. Corp., 98

F.2d 803, 812-815, (7th Cir. 1993), and Texaco ]

Zah, 5 F.3d 1374, 1376-1378 (10th Cir. 1993)

W le must depend upon the district courts to exam

ne assiduously the National Farmers factors in dete!

mining whether comity requires the parties to exhaust

their tribal remedies before presenting their disput

to the federal courts. See, e.g., Altheimer & Gray \

Sioux Mfg. Corp., 983 F.2d 803, 814-15 (7th Cir

1Y93) (noting that the propriety of tribal exhaustion

depends upon a case by case examination of 1

comity factors

Id. at 1378

Nevertheless, the fact remains that in most ¢ ts t

pending litigation issue was almost summarily dismissed

arly on without reference to these principles. As a

readv precedent in several circuits, is not likely. In th

absence of some authoritative interpretation of this Court’s

opinions by this Court, even if a conflict among the

cuits should later arise, it 1s not likely to shed furth

light on what this Court intended in National Farmers

Union and lowa Mutual. For this reason, at this point in

time onlv this Court can authoritatively resolve the issu

and the petition for certiorari should be granted now to

avoid further unnecessary delay and uncertainty.

Although amicus does not doubt that the views of tf]

United States (not yet submitted to this Court) could

lend substantial credence and support to the petition at

least in this important respect, such a submission is most

unlikely. Almost certainly, the United States, at best, will

alternatively conclude, for some reason, that there will be

time enough another day for this Court to act. In this

instance, the views of the United States are an important

part of the problem, as the following argument attests.

Il. THE VIEWS OF THE UNITED STATES SHOULD

BE ASSESSED IN THE LIGHT OF THEIR PREVI-

OUS ARGUMENTS.

\ The United St:

tes told the Court of Appeals in no

uncertain terms “Noth

l

hing in the language of the leading

Supreme Court cases requires an ongoing tribal proceed

ing.” Brief for Federal Appellees at 10, Middlemist v.

Secretary of the U.S. Dept. of Interior, 19 F.3d 1318

(9th Cir. 1994) (No. 93-35315). Importantly, the United

States neglected to point out that in those same cases, the

United States told this Court a somewhat different story.

grief for the United States, National Farmers Union,

Brief for the United States, Jowa Mutual. In fact, as

noted above, in both instances the United States even

structured the “questions presented” in terms of a “claim

pending” and a request to “enjoin” tribal proceedings.

Bricf for the United States, Jowa Mutual: Brief for the

United States. National Farmers Union. And, after Na-

tional Farmers Union had been decided, the U ited States

In lowa Mutual stressed that the Jowa Mutual dispute

was also “already the subject of a suit pending in tribal

court” Brief for the United States at 2-3 (emphasis added),

and emphasized that the federal suit:

[C]Joncerns precisely the same events and raises pre-

cisely the same issues as the case pending in the

Blackfeet triba! court .

Id. at 7 (emphasis added).

Nevertheless, according to the United States, for

unstated reason, “nothing in the language” of tl

reflects this position.

[he United States did not offer the Court of Appeal

any explanation for this rather anomalous argument

namely, that both opinions generally adopt the positio

of the United States, but on this substantial point ther

was no reliance on the questions presented or th

ments-submitted in support thereof

secondly, the United States also neglected to point «

that a fair reading of National Farmers Union and Iowa

Mutual could actually support the opposite conclusi

At least that should be the inference from the argument

the United States submitted in U.S. v. Plainbull, 957

F.2d 724 (9th Cir. 1992). According to that Court

abused its discretion by abstaining from the m

of this case because there was no concurrent actlor

pending in the tribal courts.

ld. at 728. (emphasis added )

lf “nothing in the language of the leading Supren

Court cases requires an ongoing tribal proceeding,” thi

United States should explain their argument to the con

trary. At the very least, if this argument is no longer

persuasive, some decision of this Court should be cited i

support of that proposition.

Of course, this is not to say that the United State

(or any advocate) is not free to change its position o1

legal argument. However, the reasons that prompt the

change are important. Here the point is especially telling

and it has nothing to do with the principles of a subse

quent decision of this Court.

The short of the matter is that in recent years, tl

1 Qtate itine! 1 9] ] } }

United States has routinely and zealously supported tr

toria vereignty over non-Indians in almost every

imaginable. Since 1978, for example, see, Memo-

lum for the United States, Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978) (No. 76-5729),

g in support of tribal hunting and fishing jurisdic-

n over non-Indians); Brief for the United States, Mon-

tana United States, 450 U.S. 544 (1981) (No.

39-1123), (arguing in support of tribai hunting and fish-

y jurisdi )1 over non-Indians on fee lands); Brief

the United States, Duro v. Reina, 495 U.S. 676

| 654 suing In support of tribal crim-

ri r non-member Indians); Brief for the

L’nited Stat South Dakota Bourland, —— U.S. ——.,

| S.Ct. 2309 (1993) (No. 91-2051), (arguing in sup.

rt of tribal hunting and fis] jurisdiction over non-

Indians on fee lands owned by the United States).

Moreover, in almost every instance the arguments of

have be rejected by this Court and

ctly s Oliphant v. Suquamish Indian Tribe, 435

U.S. 191 (1978): Montana \ United States, 450 U.S.

S44 1981): Duro Reina, 495 U.S. 676 | 1990): South

Dakota v. Bourland U.S , 113 S.Ct. 2309

ndeterred, the United States then reads the

tion as narrowly as possible and simply marches on

ipport of tribal territorial sovereignty over non-

mbers in renewed litigation as if the issue had not been

ritatively resolved. As a result, whatever deference

{ ordinarily be accorded the views of the United

States in other federal litigation, is simply lacking here

because of thi ained though consistent “litigating posi

tion’ in support of Indian Tribes. South Dakota v. Bou

land at 232!

\S a practical matte nother factor compounds the

problem presented by this type of seemingly relentless

advocacy. At the same time, the United States, through

ts constituent agencies (presumably pursuant to Depart

nt of Justice advi ntinues to approve tribal ordi-

nances claiming sweeping jurisdiction « n-India

In spite of the decisions of this Court. No doubt, the

United States believes that this double barreled approach

somehow advances a worthy cause. But the fact rema

that these are now issues only Congress should decide

Montana Brendale, Duro and Bou land I flect the COI

trolling doctrine of this Court

Nothing in National Farmers Union and lowa Mutual

requires the unworkable and unjust federal mandate in

this case. It is too late in the day for the United States

to reaily expect any other argument to be credible.

B. Part of the confusion on this issue stems from

related argument that does come directly from Jowa

Mutual: the extent to which some courts have been un

duly influenced in ordering exhaustion by the Jowa Mu

tual dicta once indicating tribal governments presump

tively possess civil jurisdiction over non-Indians on fee

land. (Not coincidently, the source of this argument can

also be found in the submission of the United States

Brief for the United States, Jowa Mutual). At the time

this “presumption” conflicted squarely with the rationale

.

] ] ss A frnen svt ] ‘ y Cc} '

and holding of Montana v. United States, supra. Since,

it has been squarely rejected as “misplaced” in Brendalk

v. Confederated Tribes & Bands of Yakima Indian N

tion, 492 U.S. 408, 427 n.10 (1989) and refuted by t!

holding there, as well as the holding in Bourland (“Mon

tana and Brendale establish that when an Indian tribe

conveys ownership of its tribal lands to non-Indians

loses any former right of absolute and exclusive use and

ecupation of the conveyed lands. The abrogation of this

greater right . . . implies the loss of regulatory jurisdic

tion over the use of the land by others.” “{Tlhe realit

} i .

that after Montana, tribal sovereignty over nonmembers

nnot survive without express congressional delegation.

450 U.S., at 564, 101 S.Ct., at 1258, and is therefore

not inherent.” Bourland at 2316, 2320 n.15 (emphasis

as in original). See also the “very narrow powers” men

1 |

tioned in County of Yakima, et al. v. Confederated Tribes

and Bands of the Yakima Indian Nation, ——- U.S.

112 S.Ct. 683, 692 (1992) and the “[A]ll the more rea-

son to reject an extension of tribal authority over those

who have not given the consent of the governed that pro-

ides a fundamental basis for power within our constitu

tional system” conclusion in Duro at 694.*

Nevertheless, the thought continues to find its way into

many exhaustion opinions. In fact, the district court in

the instant case placed specific reliance on this very sen-

tence. Middlemist v. Sec. of the U.S. Dept. of Interior,

S24 F. Supp. 940, 946 (D. Mont. 1993). And, as re-

ently as this summer, the Court of Appeals for the

Eighth Circuit cited the same presumption. Duncan En-

|

erey at

Vational Farmers Union and Iowa Mutual certainly

should not be viewed in this light and if clarification is

needed to finally put this issue to rest, this case could be

the means by which that point is made. If one assumes

that a citation to the presumption with approval evidences

some indication of misplaced reliance, the extent of the

problem is readily referenced. See, e.g., Blaze Construc-

The United States evidently still disagrees. The same presump-

;

to tne attention

e ( I Appeals

Se ] Mutua 180 U.S t 18 Ivil jurisdictior vel

t t f non-Indians implicating the rights of Indians on

reservation lands “presumptively lies in the tribal courts unless

rmativel imited by a specific treaty provision or federal

statute’

Brief for Federal Appellees, Middlemist at 15

Moreover, according to the United States “Brendale itself ill

trates the deep fissures within the Court concerning the nature and

scope of tribal government power” and Bourland simply “turned on

letailed statutory analysis.” Brief for Federal Appellees, Middl

f at I, 38 The “very narrow powers” mentioned in Yak

692 and Duro’s “all the more reason to reject” conclusion were

tion Inc. v. U.S., 27 Fed. Cl. 646, 654 (1993): Brown 1

Washoe Housing Authority, 835 F.2d 1327. 1329 (10th

Cir. 1988); Burlington Northern Railroad Co. vy. Crow

Tribal Council, 940 F.2d 1239, 1244 (9th Cir. 1991)

Sanders v. Robinson, 864 F.2d 630, 632-33 (9th Cir

1988); Smith v. Moffett, 947 F.2d 442, 444 (10th Cir

L991); Snowhird Construction Co., Inc. v. U.S.. 666 }

Supp. 1437, 1443 (D. Idaho 1987): Stock West. Inc. \

Confederated Tribes of the Colville Reservation, 873 F.2d

1221, 1228 (9th Cir. 1989); Stock West Corp. v. Taylor

37 F. Supp. 601, 603-04 (D. Or. 1990): Stock West

Corp. v. Taylor, 964 F.2d 912, 922 (9th Cir. 1992)

Toms Amusement Co., Inc. v. Cuthhertson. 816 } Supp

403, 406 (W.D.N.C. 1993): Twin City Construction Co

Of Fargo v. Turtle Mountain Band of Chippewas, 866

F.2d 971, 972 (8th Cir. 1989): Wellman v. Chevron

U.S.A., Inc., 815 F.2d 577, 578 (9th Cir. 1987)

One final point hould be mentioned [In 1982, the Court

A ppea addressed the status of thj yeneral area and several j if

in (one (le rated Salish WV Koote nei 7 rihex Name n, 665 k 2d QS]

9th Cir 1982 cert. denied, 459 U.S. 977 1982). A conci

summary of the case j pre ented in the di: enting views on denia

ok een Id. at 977-981 (Re hnq list. J , with whom White, J

joined, dissenting

With respect t the disestah nment f it the f Ur

ra ont ri¢ ted th f Namen appeared to he bh: ed on prin f

derived from cases from this Court. As a result. that question did

not then warrant review. Jd. Namen, was subsequently cited

persuasive authority throughout the circuits on this issue. For

example, it wa repeatedly relied on by the parties, the Unite

States, and the opinions In support of continued reservat

statu neorrectly in the U/te Indian Tribe State of Utal

litigation. Ute Indian Trihe v. State of T tah, 716 F.2d 1298 (10t}

Cir. 1983). 773 F.2d 1087 LOth Cir. 1985 , cert. denied, 479 T

994 1986), rev'd in part, sub nom. Hagen vy. Utah, U

, 114 S.Ct. 958 (1994 The contrast between Namen

Hagen in other re spects 1 significant, but beyond the scope of

this note

The issues directly addressed in the dissent ownership” and

Fong

13

CONCLUSION

Respectfully submitted,

ILAARRY NISTLER

Lake County Attorney

106 4th Avenue East

Polson, Montana 59860

(A06) 883-6211

Tom D. ToBIN

TOBIN LAW OFFICES. P.¢

P.O. Box 730

12? Main Street

Winner, South Dakota 57

(605) 842-2500

{,O) sel of Ree ord

APPENDIX

~ABEST AVAILABLE COPY}

la

APPENDIX

Act of April 23, 1904 (33 stat. 302)

CHap. 1495.—An act for the survey and allotment of

lands now embraced within the limits of the Flathead

Indian Reservation, in the State of Montana, and the

sale and disposal of all surplus lands after allotment.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That the Secretary of the Interior be, and he is

hereby, directed to immediately cause to be surveyed all

f the Flathead Indian Reservation, situated within the

State of Montana, the same being particularly described

and set forth in article two of a certain treaty entered

into by and between Isaac H. Stevens, governor and

headmen, and delegates of the confederated tribes of the

superintendent of Indian affairs for the Territory of Wash-

ington, on the part of the tnited States, and the chiefs,

Flathead, Kootenai, and Upper Pend d’Oreille Indians,

on the sixteenth day of July, eighteen hundred and fifty-

five.

Sec. 2. That so soon as all of the lands embraced

within said Flathead Indian Reservation shall have been

surveyed, the Commissioner of Indian Affairs shall cause

allotments of the same to be made to all persons having

tribal rights with said confederated tribes of Flatheads,

Kootenais, Upper Pend d’Oreille, and such other Indians

and persons holding tribal relations as may rightfully

belong on said Flathead Indian Reservation, including the

Lower Pend d Oreille or Kalispel Indians now on the

reservation, under the provisions of the allotment laws

of the United States.

Sec. 3. That upon the final completion of said allot-

ments to said Indians, the President of the United States

Shall appoint a commission consisting of five persons to

2a

inspect, appraise, and value all of the said lands that shall

not have been allotted in severalty to said Indians, the

said persons so constituting said commission to be as

follows: Two of said commissioners so named by the

President shall be two persons now holding tribal rela-

tions with said Indians—the same may be designated to

the President by the chiefs and headmen of said con-

federated tribes of Indians, two of said ‘commissioners

shall be resident citizens of the State of Montana, and one

of said commissioners shall be a United States special

Indian agent inspector of the Interior Department.

Sec. 4. That within thirty days after their appoint-

ment said commission shall meet at some point within

the boundaries of said Flathead Indian Reservation and

organize by the election of one of their number as chair-

man. Said commission is hereby empowered to select a

clerk at a salary not to exceed seven dollars per day.

Sec. 5. That said commissioners shall then proceed

to personally inspect and classify and appraise, by the

smallest legal subdivisions of forty acres each, all of the

remaining lands embraced within said reservation. In

making such classification and appraisement said lands

shall be divided into the following classes: First, agricul-

tural land of the first class; second, agricultural land of

the second class; third, timber lands, the same to be

lands more valuable for their timber than for any other

purpose; fourth, mineral lands; and fifth, grazing lands.

Sec. 6. That said commission shall in their report

of lands of the third class determine as nearly as possible

the amount of standing saw timber on legal subdivisions

thereof and fix a minimum price for the value thereof.

and in determining the amount of merchantable timber

growing thereon they shall be empowered to employ a

timber cruiser, at a salary of not more than eight dollars

per day while so actually employed, with such assistants

as may be necessary, at a salary not to exceed six dollars

3a

per day while so actually employed. Mineral lands shall

not be appraised as to value.

SEc. 7. That said commissioners, excepting said spe-

cial agent and inspector of the Interior Department, shall

be paid a salary of not to exceed ten dollars per day each

while employed in the inspection and classification of said

lands; such inspection and classification to be fully com-

pleted within one year from date of the organization of

said commission.

Sec. 8. That when said commission shall have com-

pleted the classification and appraisement of all of said

lands and the same shall have been approved by the

Secretary of the Interior, the land shall be disposed of

under the general provisions of the homestead, mineral,

and town-site laws of the United States, except such of

said lands as shall have been classified as timber lands,

and excepting sections sixteen and thirty-six of each town-

ship, which are hereby granted to the State of Montana

for school purposes. And in case either of said sections

or parts thereof is lost to the said State of Montana by

reason of allotments thereof to any Indian or Indians now

holding the same, or otherwise, the governor of said

State, with the approval of the Secretary of the Interior,

is hereby authorized, in the tract under consideration, to

locate other lands not occupied, not exceeding two sec-

tions in any one township, and such selections shall be

made prior to the opening of such lands to settlement:

Provided, That the United States shall pay to said Indians

for the lands in said sections sixteen and thirty-six, or the

lands selected in lieu thereof, the sum of one dollar and

twenty-five cents per acre.

Sec. 9. That said lands shall be opened to settlement

and entry by proclamation of the President, which procla-

mation shall prescribe the time when the manner in which

these lands may be settled upon, occupied, and entered

by persons entitled to make entry thereof, and no person

da

shall be permitted to settle upon, occupy, or enter any of

said lands, except as prescribed in such proclamation

Provided, That the rights of honorably discharged Union

soldiers and sailors of the late Civil and Spanish Wars, as

defined and described in sections twenty-three hundred

and four and twenty-three hundred and five of the Re-

vised Statutes, as amended by the act of March first, nine-

teen hundred and one, shall not be abridged: Provided

further, That the price of said lands shall be the appraised

value thereof, as fixed by the said commission, but settlers

under the homestead law who shall reside upon and cult!

vate the land entered in good faith for the pone required

by existing law shall pay one-third of the appraised value

in cash at the time of entry, and the remainder in five

‘qual annual installments to be paid one, two, three, four,

and five years, respectively, from and after the date of

entry, and shall be entitled to a patent for the lands so

‘ntered upon the payment to the local land officers of said

five annual payments, and in sdidtien thereto the same

fees and commissions at the time of commutation or final

entry as now provided by law where the price of the land

is one dollar and twenty-five cents per acre, and no other

iid further charge of any kind whatsoever shall be re

eae of such settler to entitle him to a patent for the

nd covered by his entry: Provided, That if any entryman

fails to nae such payments, or any of them, within tl

time stated, all rights in and to the land covered by his

yr her entry shall at once cease, and any payments thereto

fore made shall be forfeited, and the entry shall be for

feited and canceled: And provided, That nothing in this

act shall prevent homestead settlers from commuting thei

entries under section twenty-three hundred and one, Re-

vised Statutes, by paying for the jand entered the price

fixed by said commission, receiving credit for payments

previously made.’

1e

41 L.D., 52

5a

SEC. 10. That only mineral entry may be made on

such of said lands as said commission shall designate and

classify as mineral under the general provisions of the

mining laws of the United States, and mineral entry may

also be made on any of said lands whether designated by

said commission as mineral lands or otherwise, such clas-

sification by said commission being only prima facie evi-

dence of the mineral or nonmineral character of the same:

Provided, That no such mineral locations shall be per-

mitted upon any lands allotted in severalty to an Indian.

Sec. 11. That all said lands returned and classified bv

said commission as timber lands shall be sold and dis-

posed of by the Secretary of the Interior under sealed

bids to the highest bidder for cash or at public auction,

as the Secretary of the Interior may determine, under

such rules and regulations as he may prescribe.

SEC. 12.° That the President may reserve and except

from said lands not to exceed nine hundred and sixty

acres for Catholic mission schools, church, and hospital

and such other eleemosynary institutions as may now be

maintained by the Catholic Church on said reservation.

which lands are hereby granted to those religious organi-

zations of the Catholic Church now occupying the same,

known as the Society of Jesus, the Sisters of Charity of

Providence, and the Ursuline Nuns, the said lands to be

granted in the following amounts, namely, to the Society

of Jesus, six hundred aad forty acres, to the Sisters of

Charity of Providence, one hundred and sixty acres, and

to the Ursuline Nuns, one hundred and sixty acres, such

lands to be reserved and granted for the uses indicated

only so long as the same are maintained and occupied

by said organizations for the purposes indicated. The

President is also authorized to reserve lands upon the

same conditions and for similar purposes for any other

- A substitute for sec. 12 was enacted in sec. 9 of the act of 1905,

ch. 1479, 33 Stat., 1080, post, p. 157.

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Treasury of the United States, and afi leductin

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the lands, shall be expended or paid, as follows: Onc

half shall be expended from time to time by the Secretary

of the Interior as he may deem advisible for the benefit

of the said Indians and such persons having tribal right:

on the reservation, including the Lower Pend dOreil!

or Kalispel thereon at the ume that this act shall tak

effect, in the construction of irrigation ditches, the pur

chase of stock cattle, farming implements, or other neces

sary articies to aid the [Indians in farming and _ stock

raising. and in the education and civilization of said It

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