Amicus Curiae Brief — Duchesne County v. Ute Indian Tribe of the Uintah & Ouray Reservation

, Supreme Court, U.S.

(4) FILED

OCT 31 1997

No. 97-570

RK

|

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

DUCHESNE COUNTY, a political

subdivision of the State of Utah,

UINTAH COUNTY, a political

subdivision of the State of Utah,

Petitioners,

Vv.

UTE INDIAN TRIBE, of the

Uintah and Ouray Reservation, Utah,

a federally recognized tribe of Indians,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF FOR THE STATES OF CALIFORNIA

AND COLORADO AS AMICI CURIAE,

IN SUPPORT OF PETITIONERS

DUCHESNE COUNTY, UTAH, AND

UINTAH COUNTY, UTAH

GALE A. NORTON DANIEL E. LUNGREN

Attorney General Attorney General of California

State of Colorado

THOMAS F. GEDE *

1525 Sherman Street Special Assistant Attorney General

5th Floor 1300 I Street

Denver, CO 80203 Sacramento, CA 95814

(303) 866-3052 (916) 323-7355

* Counsel of Record

for Amici States

LL ILA BIL EP TEE EEE LE ERE ELE IEE LEIA INTIS EE EISEN EEE

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

I i a

E

II.

ITI.

THE DECISION OF THE COURT OF AP-

PEALS DIRECTLY CONFLICTS WITH THE

DECISION OF THIS COURT IN HAGEN AND

THAT CONFLICT IS READILY APPARENT

FROM THE COURT’S RATIONALE |...

A. The Submissions of Amici States in Hagen

Confirm the Direct Conflict 0.

1. Brief of Amici States in Support of the

Pea i Base 2...

2. Brief of Amici States in Support of Re-

spondent State in Hagen ._.....

B. The Submissions of Petitioner in Hagen Con-

firm the Direct Conflict .....0000000

THE SAME ARGUMENT SUBMITTED BY

THE UNITED STATES IN YANKTON SIOUX

TRIBE v. SOUTHERN MISSOURI WASTE

MGMT., 99 F.3d 1439 (8th Cir. 1996), CERT.

GRANTED SUB NOM. SOUTH DAKOTA v.

YANKTON SIOUX TRIBE, 117 S.Ct. 24380

(1997) (No. 96-1581), CONFIRMS THAT THIS

IS AN IMPORTANT FEDERAL QUESTION

WITH UNSETTLING CONSEQUENCES

THROUGHOUT THE COUNTRY ......

THE POSITION ADOPTED BY THE PANEL

IN THE TENTH CIRCUIT HAS BEEN

ACKNOWLEDGED TO CREATE UNPRECE-

DENTED “JURISDICTIONAL CHAOS”

10

12

ii

TABLE OF CONTENTS—Continued

Page

IV. THE DECISION OF THE PANEL ALSO CON-

FLICTS IN PRINCIPLE WITH ALL OTHER

DISESTABLISHMENT PRECEDENT OF

THIS COURT AND WITH EVERY CASE IN

EVERY CIRCUIT THAT HAS CONSIDERED

SIMILAR QUESTIONS ...........-... ehniibbiaibitaiiane 16

CONCLUSION .................... nspennavevanvaninsadepituplaiaadaitigalasdainiaas 17

Se ON a TT

iii

TABLE OF AUTHORITIES

CASES: Page

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

(EE Re Bt NE SRS. Sa ELE SO passim

Hagen v. Utah, 510 U.S. 399 (1994) ............... sablatiota passim

Matiz v. Arnett, 412 U.S. 481 (1978) ...................... 8, 14, 16

Pittsburg & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (10th Cir. 1990), cert. denied, 498

REE RE RR I 16, 17

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

I ccsatanid 8, 14, 16, 17

Seymour v. Superintendent, 368 U.S. 351 (1962).... 2, 8,

14, 16

Solem v. Bartlett, 465 U.S. 463 (1984) ............... 2, 8, 14, 16

State v. Hagen, 858 P.2d 925 (Utah 1992) .............. 6

United States v. Pelican, 232 U.S. 442 (1914) ..._.... 17

Ute Indian Tribe v. Utah, 521 F.Supp. 1072

catenin 10

Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.

1985), cert. denied, 479 U.S. 994 (1986) ............ 2

Ute Indian Tribe v. Utah, 935 F.Supp. 1473

EE 5

Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir.

1997), reh’g denied (July 1, 1997) ~................... 5, 6, 15

Yankton Sioux Tribe v. Southern Missouri Waste

Management, 99 F.3d 1439 (8th Cir. 1996), cert.

granted sub nom. South Dakota v. Yankton

Sioux Tribe, 117 S.Ct. 2480 (1997) (No. 96-

IN taiiet escapes nai tinocignasieeaictnhigeinsincincptecenpeene 12

STATUTES:

I ui ccnsiendenicpnanpsiitindisiophianamaneignmnmess 13

a aieeticnhrencdasticniciinnapeenesnepeinertynin 13

OTHER AUTHORITIES:

Robert L. Stern, et al., Supreme Court Practice

i ciateenduanomens 4,17

a i cscudeasmemonsnesbcenasisomes 4

David R. Williams, State v. Perank: Is the Uintah-

Ouray Reservation “Nailed Down Upon the Bor-

der?” , 1992 B.Y.U.L. Rev. 1247 ......................0..... 7

iv

TABLE OF AUTHORITIES—Continued

Page

Petition for Writ of Certiorari, Hagen v. Utah,

510 U.S. 399 (1994) (No. 92-6281) -.........00000200.... 6

Brief of Petitioner, Hagen v. Utah, 510 U.S. 399

Ce is NE icine etter teesateknsanseous 10

Appendix (I) to Brief of Petitioner, Hagen v.

Utah, 510 U.S. 399 (1994) (No. 92-6281) ............ 6

Brief of Respondent, Hagen v. Utah, 510 U.S. 399

SF APSE NE IR eee ean 6, 10

Reply Brief of Petitioner, Hagen v. Utah, 510 U.S.

ee ES 5 ee enanseeee me 11

Brief for the States of California, North Dakota,

South Dakota, and Washington, as Amicus

Curiae in Support of Respondent State of Utah,

Hagen v. Utah, 510 U.S. 399 (1994) (No. 92-

| RE RR RAST SILI Oy Os MALES 2, 3, 7,8

Brief for the States of South Dakota, Arizona,

California, Montana, Nevada and Oklahoma, as

Amicus Curiae in Support of Respondent State

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

ees IIE -cicnintcisincseeeicseccinthictini seuisicdieaneiiibiaddaccn tinetibane 3, 9, 10

Transcript of Oral Argument, Hagen v. Utah, 510

U.S. 399 (1994) (No. 92-6281) ........................... 11

Brief of Amicus Curiae Ute Indian Tribe in Sup-

port of Petition for Rehearing, Hagen v. Utah,

510 U.S. 399 (1994) (No. 92-6281) ...........000000.... 15

Brief for the United States as Amicus Curiae in

Support of Plaintiffs-Appellees, Yankton Sioux

Tribe v. Southern Missouri Waste Management

Dist., 99 F.3d 1489 (8th Cir. 1996) (No. 95-

EE siciisicscciochicca ticle tntataplindieon spendin aaadiabe Mins 12, 13, 14

Reply Brief of State of South Dakota, South

Dakota v. Yankton Sioux Tribe (August 7,

S000) Ge: DSRS cocks. 13

Brief for the United States as Amicus Curiae in

Support of Respondents, South Dakota v. Yank-

ton Sioux Tribe (September 24, 1997) (No. 96-

|

Vv

TABLE OF AUTHORITIES—Continued

Brief of Charles Mix County, South Dakota, as

Amicus Curiae in Support of Petitioner State of

South Dakota, South Dakota v. Yankton Sioux

Tribe (August 7, 1997) (No. 96-1581) -...............

Brief of Duchesne County, Utah and Uintah

County, Utah, as Amicus Curiae in Support of

Petitioner State of South Dakota, South Dakota

v. Yankton Sioux Tribe (August 7, 1997) (No.

BIE Yas cceitntnnsctasinncstherstnneeesnncentnnntncimanntintcineconen

Petition for Writ of Certiorari, Duchesne County

and Uintah County, Utah v. Ute Indian Tribe

Page

13

(September 29, 1997) (No. 97-570) ..........--- 4,6, 11, 15

Appendix to Petition for Writ of Certiorari,

Duchesne County and Uintah County, Utah v.

Ute Indian Tribe (September 29, 1997) (No. 97-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-570

DUCHESNE COUNTY, a political

subdivision of the State of Utah,

UINTAH COUNTY, a political

subdivision of the State of Utah,

Petitioners,

V.

UTE INDIAN TRIBE, of the

Uintah and Ouray Reservation, Utah,

a federally recognized tribe of Indians,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF FOR THE STATES OF CALIFORNIA

AND COLORADO AS AMICI CURIAE,

IN SUPPORT OF PETITIONERS

DUCHESNE COUNTY, UTAH, AND

UINTAH COUNTY, UTAH

INTERESTS OF AMICI CURIAE

Federal Indian law decisions in the Tenth Circuit are

always the subject of special concern because of the con-

siderable reservation acreage within that circuit. For that

reason, the State of California appeared as an Amici Curiae

in Hagen v. Utah, 510 U.S. 399 (1994). As we told the

Court at that time, the Amici States’ interests in Hagen

were substantial:

This case presents an issue of substantial importance

to Amici and other States with present and former

Indian reservations. In 1985, the United States

Court of Appeals for the Tenth Circuit concluded

2

that Acts of Congress with operative language

restoring Indian reservations to the public domain

were not intended to disestablish those reservations.

Ute Indian Tribe v. State of Utah, 773 F.2d 1087

(10th Cir. 1985), cert. denied, 479 US. 994

(1986). The Court of Appeals premised its decision

on a misreading of Solem v. Bartlett, 465 U.S. 463

(1984), and plaintiffs in New Mexico and elsewhere

specifically relied on this misreading in an attempt to

resurrect boundaries of Indian reservations long

deemed disestablished. . .

Amici States have an obvious sovereign interest in

knowing, with some degree of certainty, where the

boundaries of Indian reservations are located. The

present petition presents a valuable opportunity to

continue the process, begun by the Court’s modern

decisions in Seymour v. Superintendent, 368 U.S.

351 (1962), of defining the manner in which surplus

land statutes of this kind affected Indian reservations

throughout the United States.

Br. for the States of California, North Dakota, South

Dakota, and Washington, as Amici Curiae in Supp. of

Resp’t State of Utah at 1-2, Hagen, (No. 92-6281) (foot-

note omitted) (emphasis added).

The decision of this Court in Hagen went a long way

toward defining and clarifying the manner in which public

domain statutes of this kind affected Indian reservations.

The decision of the panel in the Tenth Circuit has directly

turned Hagen on its head, causing more uncertainty and

confusion than existed prior to that time."

1 Amici States understand that Utah has filed an Appearance and

Waiver Form in this Court indicating that while it was aligned

with Petitioners below, the State has not joined in the filing of a

Petition and did not anticipate any response “unless requested by

the Court.” According to the Petitioner Counties, settlement dis-

cussions on unrelated and related issues presumably prompted this

decision. These considerations do not, of course, have any bearing

on the merits of the Petition for Certiorari or the views expressed

by the amici States in this amici brief.

3

SUMMARY OF ARGUMENT

The decision of the court of appeals directly conflicts

with the decision of this Court in Hagen. Although the

United States has apparently shifted its position, argu-

ments submitted by the United States in another circuit

confirms that this is an important federal question with

unsettling consequences throughout the Country. In addi-

tion, the position adopied by the Tenth Circuit has been

acknowledged to create unprecedented “jurisdictional

chaos.” Moreover, it conflicts in principle with all other

disestablishment precedent of this Court and with every

case in every circuit that has considered similar questions.

ARGUMENT

I. THE DECISION OF THE COURT OF APPEALS

DIRECTLY CONFLICTS WITH THE DECISION OF

THIS COURT IN HAGEN AND THAT CONFLICT

IS READILY APPARENT FROM THE COURT'S

RATIONALE.

INTRODUCTION

In November 1992, the State of California was one of

several western states to join in an amici curiae brief in

Hagen in support of the Respondent Utah, concurring

that the Petition for a Writ of Certiorari should be

granted. Br. for the States of California, North Dakota,

South Dakota, and Washington, as Amici Curiae in Supp.

of Resp’t State of Utah at 1-2, Hagen, (No. 92-6281).

On the merits, the State of California joined in an addi-

tional brief for the States in further support of Respond-

ent. Br. for the States of South Dakota, Arizona, Cali-

fornia, Montana, Nevada and Oklahoma, as Amici Curiae

in Supp. of Resp’t State of Utah, Hagen, (No. 92-6281).

As a result, the Amici States are very much aware of the

question presented and decided in Hagen. The decision

of the Tenth Circuit Court of Appeals in this case is in

direct conflict with Hagen and that conflict is readily

apparent from the rationale stated in the opinion. Pet.

App. at 32a-35a (crux of court of appeals opinion).

4

Because the proceedings here are intertwined and tied

to Hagen in every respect, this conflict is “truly” direct.

Robert L. Stern, et al., Supreme Court Practice, § 4.5,

at 174 (7th ed. 1993). As such, according to Supreme

Court Practice, this case presents “one of the strongest

possible grounds for securing the issuance of a writ of

certiorari.” 7d. Sup. Ct. R. 10. The decision of this

Court in Hagen has been grossly misconstrued by the

Tenth Circuit Court of Appeals and that misconstruction

could potentially disturb settled law throughout the Coun-

try. For these reasons, Amici States strongly urge this

Court to grant certiorari and fashion appropriate relief.

In essence, the court of appeals held that, in Hagen,

this Court found that Congress intended to somehow re-

move only homestead and townsite lands from the Uintah

reservation, without otherwise disturbing historic reserva-

tion boundaries. Such a holding by this Court, however,

would have been unprecedented and it would have been

in conflict with all prior decisions of this Court (and every

other court). Moreover, it would also result in “jurisdic-

tional chaos,” a fact that was unequivocally conceded in

the Hagen proceedings. Pet. at 10-12. Nothing in Hagen,

fairly construed, should have led the panel to the con-

clusion adopted here.

The reasoning of the panel supporting this conclusion

can be readily examined because it is limited to two brief

paragraphs. With historic reservation boundaries in place,

the panel concluded that three other categories of non-

trust lands would still be Indian country (i.e., the fee

lands apportioned to the terminated Utes in the 1950's,

the lands allotted to individual Indians that passed into

fee status after 1905, and the lands that were held in

trust after the Reservation was opened in 1905 but that

since have been exchanged into fee status ...). Ute

Indian Tribe, 114 F.3d at 1529, Pet. App. 32a-33a.

With respect to the other three categories of non-

trust lands, the state and local defendants argue that

these lands also are no longer within Indian country

after Hagen. They contend that the Supreme Court

5

in Hagen “clearly contemplated that the exterior

boundaries of the Reservation would simply be

gone.” Appt. Brief, at 44. In other words, the de-

fendants argue that the Court held that the 1902-

1905 legislation completely terminated the Reserva-

tion such that no discrete, definable reservation

boundaries now exist. Under the defendants’ theory,

there are no external boundaries and thus no “limits

of any reservation.” Indian country therefore is con-

fined under § 1151(c) to “Indian allotments . . .

which have not been extinguished,” or trust lands.

Under the theory that Indian country is limited to

trust lands, the defendants argue that the three dis-

puted categories of non-trust lands no longer con-

stitute Indian country.

We reject the defendants’ argument that Hagen

removed all non-trust lands within the original

Uintah Valley Reservation from Indian country. In

Hagen, the Supreme Court did not decide that the

1902-1905 allotment legislation completely disestab-

lished the Uintah Valley Reservation, erasing its

outer boundaries and rendering § 1151(a) inappli-

cable to the three disputed categories of non-trust

lands. The Court in Hagen stated: . . . The Court

stated that the Uintah Valley Reservation had been

“diminished”—not “disestablished,” “eliminated,” or

“terminated.” Moreover, the diminishment was only

“with respect to those lands” that had been restored

to the public domain under the 1902-1905 legisla-

tion. See Ute Indian Tribe IV, 935 F.Supp. at 1487-

88. We therefore conclude that Hagen did not erase

the boundaries of the Uintah Valley Reservation and

that the current “limits of [the] reservation” thus

embrace the three categories of non-trust lands at

issue. In sum, Hagen does not conflict with our hold-

ing in Ute Indian Tribe III that these categories of

non-trust lands remain within Indian country under

section 1151(a).

Ute Indian Tribe, 114 F.3d at 1530, Pet. App. 34a-35a.

In this respect, Petitioners have certainly demonstrated

that the fundamental error of the panel centered around

a failure to view the language of Hagen in context. This

6

amici brief is intended to unequivocally confirm that

position.”

A. The Submissions of Amici States in Hagen Confirm

the Direct Conflict.

1. Brief of Amici States in Support of the Petition

in Hagen.

From the beginning, the States participating in Hagen

as amici curiae also viewed the Hagen issue as it has

2 Remarkably, nothing in the Hagen decision and nothing in the

Hagen record can be cited to independently establish that the

offense in Hagen would even be entirely excepted from Indian coun-

try under the panel’s decision. The Utah Supreme Court opinion in

Hagen expressly stated that:

The plea Affidavit stated that defendant sold marijuana from

his residence in Myton, Duchesne County, Utah.

State v. Hagen, 858 P.2d 925 (Utah 1992) (emphasis added). The

Petiton noted that the offense took place in Myton, Utah. Pet. at 3,

Hagen (No. 92-6281). The Statement of the Case in the Brief for

Respondent State of Utah stated that the “offense occurred on

non-Indian lands near the town of Myton, Utah.” Br. for Resp’t

at 2, Hagen (No. 92-6281). (The “non-Indian lands” description,

as opposed to lands held in trust for the tribe or its members, was

the traditional determinative factor prior to this jurisdictional dis-

pute, as Hagen establishes.) See also District Court of Duchesne

County Transeript: “[T]his eourt is well aware the state takes the

position that the Uintah Ouray reservation consists of trust lands,

and that there is no testimony that the defendant was residing on

trust land.” Pet. App. I at 18, Hagen (92-6281). Under the panel’s

decision, historic boundaries still exist. As a result, this “non-

Indian lands”/“trust lands’ distinction would be meaningless.

The town of Myton, Utah, is certainly not Indian country, as

Hagen establishes, and as the panel recognized. Ute Indian Tribe

v. Utah, 114 F.3d 1513 (10th Cir. 1997). Nevertheless, under the

criteria expressly set forth in the panel’s opinion, a “title search”

would have been necessary to establish jurisdiction in Hagen in the

first instance. Pet. App. 35a. Of course, that was not the case in

Hagen. The criminal offense occurred at Hagen’s “residence” on

non-Indian lands, a description sufficient for the traditional checker-

board tract search required by this Court. DeCoteau, 420 U.S. at

427 n.2, 446-447, Rosebud, 430 U.S. at 615, 615 n.48, Solem, 465

U.S. at 467 n.8.

7

been represented to this Court by Petitioners: namely,

whether historic reservation boundaries in Utah were dis-

established by the public domain acts in question. As we

told this Court at the time the issue was first presented:

Heretofore, the equation of public domain language

with reservation disestablishment has been a uni-

versally accepted principle of federal Indian law.

Br. for the States of California, North Dakota, South

Dakota, and Washington, as Amici Curiae in Supp. of

Resp’t State of Utah at 2, Hagen, (No. 92-6281) (em-

phasis added).

This Court in Hagen confirmed that assessment, but the

Court of Appeals lost sight of that disestablishment prin-

ciple in deciding this case.* Instead, the panel held that

except for the homestead and townsite lands (but not

other fee lands in the area) being somehow removed from

Indian country status, the historic reservation boundaries

Otherwise remain intact. This was not the holding in

Hagen.

Throughout the argument of the amici curiae States

in Hagen, the issue was consistently and repeatedly re-

ferred to in the traditional manner:

Until the en banc majority’s decision, no court seri-

ously questioned that operative language was not

precisely suited to disestablishment.

Indeed, in 1975, when this Court framed the issue

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

(1975), it did so in terms of an underlying inquiry

for “public domain” indicia:

These two cases, consolidated for decision, raise

the single question whether the Lake Traverse

Indian Reservation in South Dakota, created by

an 1867 treaty between the United States and

’ Even before Hagen, commentators agreed with this assessment.

David R. Williams, State v. Perank: Is the Uintah-Ouray Reserva-

tion “Nailed Down Upon the Border?’”, 1992 B.Y.U.L. Rev. 1247.

8

the Sisseton and Wahpeton bands of Sioux In-

dians, was terminated and returned to the pub-

lic domain, by the Act of March 3, 189].

DeCoteau, supra at 426-427 (emphasis added).

Even the Rosebud dissent expressly acknowledged

that “restored to the public domain” was “clear lan-

guage of express termination,” as the Utah Supreme

Court noted. Resp. App. 21la-22a. Rosebud, 430

U.S. at 618 (Marshall, J., dissenting).

During the late 1800’s and early 1900’s Congress

and the President frequently used public domain lan-

guage to open Indian reservations for entry and set-

tlement. Until the decision of the en banc majority,

such restoration-to-the-public-domain language meant

that the reservation was disestablished, a point well

understood by the Utah Supreme Court, by this

Court, by Congress, by the President, by the Depart-

ment of the Interior and by the Department of

Justice.

Id. at 3, 3-4, 4-5, 7-8 (footnotes omitted) (emphasis

added).

Under the holding of the panel, the “disestablishment,”

“terminated,” and “disestablished” descriptions noted there

are rendered meaningless—yet these are terms amici states

have understood according to the meanings given them

under this Court’s precedent in Seymour, Mattz, De-

Coteau, Rosebud and Solem.

2. Brief of Amici States in Support of Respondent

State in Hagen.

On the merits, the States’ amici brief made clear that

the issue in Hagen was whether the reservation was “dis-

established” except for the “trust” lands. For example, in

the “Summary of Argument:”

As Solem itself indicates, through reference to

Seymour v. Superintendent, 368 U.S. 351, 355

(1962), as cited at Solem, 465 U.S. at 470, lan-

guage of an act which affirmatively returns land to

the “public domain” is such “other language,” which

9

evidences a “total surrender of all tribal interests”

and thus operates to disestablish the reservation. . .

Congress, in the “operative language,” restored the

subject lands to the public domain, and thus, in line

with the well-established precedent disestablished the

reservation boundaries.

Br. for the States of South Dakota, Arizona, California,

Montana, Nevada and Oklahoma, as Amici Curiae in

Supp. of Resp’t State of Utah at 4, 6, Hagen, (No. 92-

6281) (emphasis added).

Under the holding of the panel, the “disestablish the reser-

vation” and “disestablished the reservation boundaries”

descriptions noted there are also rendered meaningless.

Throughout the argument and in the conclusion, amici

States in Hagen made the point several times, in several

ways, but the issue remained the same. /d. at 7, 3 80, i,

12-13, 13, 14, 17. Again, the panel rendered meaningless

the terms “termination,” “disestablishment,” “no outside

boundary line,” and “existence or nonexistence of reserva-

tion boundaries.” /d.

With specific reference to the fact that reservation

boundaries surrounding all lands (not just homestead and

townsite lands) were at issue, as Petitioners establish, our

merits brief in Hagen also unequivocally supports that

conclusion. In the process of confirming that the number

of tribal members living in the disputed areas (i.e. on

nontrust lands) was not substantial, the “issue before this

Court” was cast in the following terms:

Further, of those 1,500 members, only about 300

live on the actual nontrust lands at issue before this

Court. ... Thus, using the figures most generously

to the Tribe, approximately 92% of the persons

within the historic boundaries are non-Indian. Utiliz-

ing the number of Native Americans who reside

upon the land actually at issue in this case, the statis-

tics become even more overwhelming. Of the ap-

proximately 18,000 persons who live on the nontrust

10

areas, over 98% are non-Indian; only about 300

Native Americans live in the nontrust areas, as noted

above.

Id. at 16 (emphasis added).

Under the holding of the panel, all the “nontrust lands”

and “nontrust areas” descriptions noted there are rendered

meaningless.* :

B. The Submissions of Petitioner in Hagen Confirm

the Direct Conflict.

As the Counties have noted, this is also the context in

which the descriptions of Petitioner in Hagen were sub-

mitted. For example:

The status of the Uintah Valley Reservation was the

focus of attention, not the periphery of concern in

the federal court litigation. . . . If the Court upholds

the State of Utah Supreme Court decision of July 17,

1992, then the State of Utah and its subdivisions will

exercise general civil and criminal jurisdiction over

Indians whenever they are located off trust lands... .

Br. of Pet’r. at 16-17, 29, Hagen, (No. 92-6281) (em-

phasis added).

Again, under the holding of the panel, the “trust” lands

descriptions noted there are rendered meaningless. And

in the Reply Brief, Petitioner in Hagen reiterated the point

in unequivocal terms:

Before the Court today, Utah seeks a ruling that, in

fact, the boundaries of the Uintah Valley Reservation

* The Hagen reference map, Ex. I-1B, was reproduced as Appendix

B in the Brief for Respondent State of Utah (and was also a part

of the trial record in Ute Indian Tribe v. Utah, 521 F.Supp. 1072

(D.Utah 1981)). Br. for the Resp’t at App. B, Hagen (No. 92-6281).

This map is keyed to “original” reservation boundaries and “gen-

eral land ownership.” Jd. at 6 n.3, Hagen (No. 92-6281). Sig-

nificantly, the distinctions adopted by the panel, among fee lands,

are not even depicted in the “general land ownership” designations

relied on by the parties. In this respect, the Hagen map designated

all Indian trust land as “Indian land” and all privately owned

nontrust lands as “private lands,” in the traditional manner.

}1

_ Were disestablished . . . federal courts preserving the

boundary of the Uintah Valley Reservation. ... This

appeal will determine whether the State of Utah

criminal justice system (as opposed to federal and

tribal courts) will prosecute Indians committing

crimes on . . . presently owned in fee by non-Indians.

Reply Br. of Pet’r. at 2, 16-17, Hagen, (No. 92-6281)

(emphasis added).

Under the holding of the panel, the “boundaries,” “dis-

established,” and “fee” lands descriptions noted there are

rendered meaningless.

At oral argument, counsel for Petitioner in Hagen (who

also represented the Ute Tribe in the district court, the

court of appeals, and before this Court in Opposing cer-

tiorari in the Ute Indian Tribe litigation), presented the

question in these terms:

MR. SENECA: [T]he question presented is

whether or not the boundary of the Uintah Reserva-

tion was disestablished... . MR. SENECA: .

Now, it’s couched in terms of whether or not the

reservation was disestablished, and the reason it’s

couched in those terms is that if the reservation

boundary had been disestablished, then Myton, Utah,

is not in Indian country. ... MR. SENECA: [T]his

Court is going to have to decide whether or not that

reservation boundary has been disestablished or not.

Tr. or Oral Argument at 3, 5, 9, Hagen, (No. 92-6281)

(emphasis added).

Under the holding of the panel, the “boundary” and “dis-

established” descriptions noted there are rendered mean-

ingless.

The Counties have set forth at great length similar

submissions of the Ute Tribe and the United States in

Hagen and the substance of that documentation need not

be repeated here. Pet. at 22-27. It should be sufficient

to merely note that all sources confirm the same under-

standing of the issue presented and decided in Hagen.

12

All of this documentation is to no avail under the holding

of the panel. In this instance, the panel in the Tenth

Circuit is certainly mistaken. In Hagen, this Court did

exactly what Petitioner requested, but decided that the

“reservation boundary has been disestablished.” Jd.

II. THE SAME ARGUMENT SUBMITTED BY THE

UNITED STATES IN THE EIGHTH CIRCUIT IN

YANKTON SIOUX TRIBE v. SOUTHERN MIS-

SOURI WASTE MGMT,., 99 F.3d 1439 (8th Cir. 1996),

CERT. GRANTED SUB NOM. SOUTH DAKOTA uv.

YANKTON SIOUX TRIBE, 117 S.Ct. 2430 (1997) (No.

96-1581), CONFIRMS THAT THIS IS AN IMPOR-

TANT FEDERAL QUESTION WITH UNSETTLING

CONSEQUENCES THROUGHOUT THE COUNTRY.

The United States clearly understands the generic na-

ture of this argument and the extent to which the decision

of the panel in the Tenth Circuit conflicts with Hagen

and other precedent of this Court. Although the United

States has now shifted its position in this Court, the United

States submitted the same argument in another case, in

another circuit, not involving public domain language,

but rather a statutory cession of all unallotted lands.

Br. for United States as Amicus Curiae in Supp. of

Plaintiffs-Appellees at 17 n.6, Yankton Sioux Tribe v.

Southern Missouri Waste Management Dist., 99 F.3d

1439 (8th Cir. 1996) (95-2647). In that instance, the

United States candidly stated, for the first time, that its

interest as amicus curiae was in “protecting the integrity

of reservation boundaries.” /d. at 1.

The panel in the Eighth Circuit had no occasion to

squarely address the issue because it held the original

boundaries of the Yankton Sioux reservation were saved

by other language and not disestablished by the cession

in question, as others have already pointed out in that

case. Br. of Charles Mix County, South Dakota, Amicus

Curiae, in Supp. of Pet’r, State of South Dakota at 30

ee ee ee ee |

13

n.11; Br. of Duchesne County, Utah and Uintah County,

Utah, Amici Curiae, in Supp. of Pet’r, State of South

Dakota at 2, 3-4, South Dakota v. Yankton Sioux Tribe

(No. 96-1581) (August 7, 1997). In addition, the State

of South Dakota has correctly noted that before this

Court, neither the Yankton Sioux Tribe nor the United

States “now disputes” that, if Yankton is reversed, “Indian

country” status will be limited to unextinguished allot-

ments (18 U.S.C. §1151(c)) and “dependent Indian

communities” (18 U.S.C. § 1151(b)). Reply Br. of State

of South Dakota at 20 n.19, Yankton Sioux Tribe, (No.

96-1581). Nevertheless, this shift in position by the

United States might be prompted by the fact that a peti-

tion is still pending in this case. There is little doubt that

if this petition is denied, the “post-Hagen” argument will

be resubmitted by the United States in other cases. For

these reasons, the argument of the United States as sub-

mitted in the Eighth Circuit raises considerable concern

for amici States.

When Yankton was before the Eighth Circuit, the

United States, in one sweeping footnote, submitted a

modified form of the post-Hagen argument applied to the

Yankton cession. Disregarding all disestablishment prece-

dent, the United States summarily concluded:

Article I of the 1892 Agreement provides only that

“the unallotted lands within the limits of the

[Yankton Sioux] reservation” are ceded to the United

States, and it was only such lands that were covered

by the Presidential Proclamation of May 16, 1895.

As a result, the State’s reliance on Articles I and IT

of the 1892 Agreement for the proposition that the

Reservation was diminished can extend no further

than those unallotted lands. The other lands owned

by non-Indians on the Reservation presumably were

once allotted to tribal members but later sold to

non-Indians. The State has pointed to nothing in

the 1892 Agreement to suggest that these lands were

removed from the Reservation any more than that

the allotted lands that remain in Indian ownership

14

were removed from the Reservation. The State’s

argument in this case, therefore, would yield the

anomalous result that some fion-Indian land within

the Reservation boundaries is part of the Reservation

and some is not, which would complicate the juris-

dictional maze beyond even that caused by the

checkerboard pattern of Indian ownership. Because

only Congress may alter reservation boundaries, see

Solem, 465 U.S. at 470, the size of (and patcels

constituting) the Reservation could not have been

affected by subsequent transfer of lands from Indians

to non-Indians.

Br. for United States as Amicus Curiae in Supp. of

Plaintiffs-Appellees at 17 n.6, Yankton Sioux Tribe v.

Southern Missouri Waste Management Dist., 99 F.3d

1439 (8th Cir. 1996) (95-2647).

At this juncture, two important points in this argument

should be noted. First, no State has ever made an argu-

ment that would support the “anomalous result” the

United States has suggested. 7d. Contrary to the asser-

tion of the United States (without citation to any author-

ity), the States have consistently argued in all cases, in-

cluding Hagen, that the issue was whether the affected

reservation area was “disestablished” except for “trust

land.” Nothing in the submissions or the decisions of

Seymour v. Superintendent, 368 U.S. 351 (1962); Mattz

v. Arnett; 412 U.S. 481 (1973), DeCoteau v. District

County Court, 420 U.S: 425 (1975), Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584 (1977); Solem v. Bartlett,

465 U.S. 463 (1984) or Hagen, can be cited to support

any other conclusion. Even a cursory review of tlie sub-

missions of the United States in those same cases under-

mines the entire argument.

Secondly, the generic nature of this argument is of

critical concern. Because the operative language of all

surplus land statutes, including those addressed in

Seymour, Mattz, DeCoteau, Rosebud, Solem and Hagen,

is always directed to only “undllotted lands,” the same

sian ia |

OO

15

argument in favor of resurrecting original reservation

boundaries could be made throughout the Country—in

cases already decided, as well as in future litigation.

Nothing in Hagen supports this anomalous result.

A third point in this argument, a critical concession by

the United States that, as a result, the jurisdictional maze

will be complicated beyond that “caused by the checker-

board pattern of Indian Ownership” is addressed infra.

Id.

Ill. THE POSITION ADOPTED BY THE PANEL IN

THE TENTH CIRCUIT HAS BEEN ACKNOWL-

EDGED TO CREATE UNPRECEDENTED “JURIS-

DICTIONAL CHAOS.”

In the petition, the Counties have detailed the circum-

stances under which the Ute Tribe previously acknowl-

edged, before this Court, that the “jurisdictional chaos”

created by this concept is unfathomable. Pet. at 10-14;

(“virtually impossible”) (“absurd situation”) Br. of Ute

Indian Tribe in Supp. of the Pet. for Reh’g at 4-5, Hagen,

(92-6281). And the panel specifically recognized that a

title search would be necessary to implement this un-

precedented concept ( involving hundreds of thousands of

acres of lands in this area alone). Ute Indian Tribe y.

Utah, 114 F.3d at 1530 (emphasis added), Pet. App.

35a. Nevertheless, the panel simply noted that “this con-

clusion has the benefit of producing a stable, unchanging

allocation of jurisdiction.” Jd. In the process, the panel

never acknowledged, discussed, or even mentioned the

unprecedented “jurisdictional chaos” previously admitted

by the Ute Indian Tribe.

The United States also refused to address the “jurisdic-

tional chaos” admission. However, in the Yankton sub-

mission discussed supra at 12-15, the United States con-

ceded the problem, as well as the fact that it would

exist everywhere the argument is accepted (“complicate

the jurisdictional maze beyond even that caused by the

checkerboard pattern”). Jd. In both respects these are

16

significant concessions insofar as the United States con-

sistently claims that law enforcement authority and con-

cern for effective administration of justice in Indian

country are significant factors in every argument.

In addition, the panel succinctly stated that their “ap-

proach” was “more desirable” than the “moving checker-

board” (previously approved by this Court in Seymour,

Mattz, DeCoteau, Rosebud, Solem and Hagen). Id. at

1530. See also Pittsburg & Midway Coal Mining Co. v.

Yazzie, 909 F.2d 1387, 1420-1422 (10th Cir. 1990),

cert. denied, 498 U.S. 1012 (1990), decided on the basis

of precedent from this Court. In this light, the opinion

of the Tenth Circuit is conflicting, untenable, and un-

workable.

Moreover, the deficiencies and conflicts inherent in such

a scheme are not resolved simply because opposing argu-

ments have not addressed them, as will predictably be

the case here. In this instance, the Court should focus

on this issue and authoritatively resolve it before the

consequences become unduly burdensome in former In-

dian country areas across the Country.

IV. THE DECISION OF THE PANEL ALSO CONFLICTS

IN PRINCIPLE WITH ALL OTHER DISESTAB-

LISHMENT PRECEDENT OF THIS COURT AND

WITH EVERY CASE IN EVERY CIRCUIT THAT

HAS CONSIDERED SIMILAR QUESTIONS.

Amici States are not aware of any decision anywhere

that has reached a conclusion consistent with the position

adopted by the courts below. We are certain that Re-

spondents cannot cite any decision that directly supports

that position. As a result, in addition to the direct con-

flict with Hagen, the decision of the panel conflicts in

principle with the disestablishment precedent of this Court

in the decisions of Seymour, Mattz, DeCoteau, Rosebud

and Solem, as well as all related cases in every circuit

(and all state decisions as well). In other words, the

decision in this case is the first case in the history of this

17

type of litigation to leave substantial non-Indian fee lands

within historic reservation boundaries, after an area has

been restored to the public domain or otherwise sub ject

to some type of disestablishment surplus land statute.

In this light, it is not surprising that the decision has

also resulted in an intracircuit conflict. See Yazzie, 909

F.2d at 1420-1422 approvingly citing and quoting

DeCoteau, 420 U.S. at 446, 447 and Yazzie, 909 F.2d

at 1421-1422 approvingly citing and discussing Rosebud

and United States v. Pelican, 232 U.S. 442 (1914). Be-

cause this intracircuit conflict relates to a recurring and

important issue (Supreme Court Practice at 176), it too

is not without significance here.

CONCLUSION

The petition for certiorari should be granted and this

Court should fashion appropriate relief.

Respectfully submitted,

GALE A. NORTON DANIEL E. LUNGREN

Attorney General Attorney General of California

1525 Sherman Street Special Assistant Attorney General

5th Floor 1300 I Street

Denver, CO 80203 Sacramento, CA 95814

(303) 866-3052 (916) 323-7355

* Counsel of Record

for Amici States