Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

IN ‘THE

- 2000-

Supreme Court of the wanted States

STATE OF SOUTH DAKOTA; re | Janko enor of

South Dakota; MARK W. BARNETT, Attorney General of

South Dakota; SCOTT PODHRADSKY, State’s Attorney of

Charles Mix County; HERMAN PETERS, Member of the

Charles Mix, South Dakota, County Commission; BRUCE

BAKKEN, Member of the Charles Mix, South Dakota,

County Commission; JACK SOULEK, Member of the

Charles Mix, South Dakota, County Commission;

SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, a

nonprofit corporation,

Petitioners,

v.

YANKTON SIOUX TRIBE, and its individual members; UNITED

STATES OF AMERICA, on its own behalf and for the benefit

of the Yankton Sioux Tribe; DARRELL E. DRAPEAU,

individually, a member of the Yankton Sioux Tribe,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF CITIES DANTE, GEDDES, LAKE ANDES,

PICKSTOWN, PLATTE, RAVINIA AND WAGNER,

AMICI CURIAE, IN SUPPORT OF PETITIONERS

STATE OF SOUTH DAKOTA, CHARLES MIX COUNTY

AND SOUTHERN MISSOURI WASTE

MANAGEMENT DISTRICT

TIMOTHY R. WHALEN

Counsel of Record

WHALEN LAW OFFICE, P.C.

P. O. Box 127

Lake Andes, SD 57356

(605) 487-7645

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001 we i !

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .00.0.0....cccccccscsssssssccssesceceoee. iv

INTEREST OF AMICI CURIAE ..0....c.cccccccccecscoccoceceoce. l

SUMMARY OF ARGUMENT 1.00... .ccccccccccsssscscescoseccese. 3

ONE isichsinsaijoligacdncaaebicieaddecduatetitnaas.. 8

I. THE SHIFTING ARGUMENTS OF THE

UNITED STATES ARE WITHOUT MERIT... 8

A. NOTHING IN THE YANKTON DOCU-

MENTS INDICATED THAT ARTICLE

XVIII OF THE 1894 ACT WAS IN-

TENDED TO ALTER THE FUNDA-

MENTAL ATTRIBUTES OF THE

YANKTON CESSION ...2.0ccccccssscsseccsonsesesee 8

B. THE CONCESSIONS OF THE UNITED

STATES IN YANKTON I WITH REF-

ERENCE TO DISESTABLISHED RES-

ERVATION BOUNDARIES ARE SIG-

NIFICANT AND CONTROLLING

TNT hss cinssnsiidipianeniniainilaidaariiidnikecsad ile 10

C. THIS COURT HAS MADE CLEAR

THAT THE 1858 RESERVATION

BOUNDARIES OF THE YANKTON

RESERVATION WERE NOT MAIN-

Pe aiciissceccetaidn se coe aaa 12

1. South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998)......cccccccscecsecseeseece. 12

2. Yankton Sioux Tribe v. Gaffey, 14

F.Supp.2d 1135 (D.S.D. 1998) rev’d

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

for cert. filed (U.S. Mar. 7, 2000) (No.

PP iiehisnidatatindetne ea 15

TABLE OF CONTENTS—Continued

3. Yankton Sioux Tribe v. Gaffey, 188 F.3d

1010 (8th Cir. 1999) petition for cert.

filed (U.S. Mar. 7, 2000) (No. 99-

D. THE FACT THAT THE UNITED

STATES HAS DECIDED NOT TO FILE

A PETITION IS IMPORTANT. ..................

TITY te ehinciecdcnstancinuolideanassocinicimiisinadabinaiahninscinnsnen

APPENDIX

Brief of Charles Mix County, South Dakota,

Amicus Curiae, in Support of Petitioner, State

of South Dakota, South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329 (1998) (No. 96-

SE iehiestinhitssresssdsehéutllnseileon stead ahuadeis ducbaiaesinietinimasaeinaas

Memorandum for the United States, Seymour v.

Superintendent, 368 U.S. 351 (1962) (No. 8

SENNA dcticadelih ie seihenibedssssinbdiansco ie Lbaickaiicineiadauilaamsadaeenaaaniiae

Brief for the United States as Amicus Curiae,

Mattz v. Arnett, 412 U.S. 481 (1973) (No. 71-

a i ike

Brief for the United States as Amicus Curiae,

DeCoteau vy. District County Court, 420 U.S.

Ie CIE CEU... FF 5 WE iincnienticetsnuredmensinutiintans

Brief for the United States as Amicus Curiae,

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

8 _- a me aI DEIy ONO RRR

Brief for the United States as Amicus Curiae

Supporting Respondent, Solem v. Bartlett, 465

U.S. 463 (1984) (No. 82-1253)............cc.cccceeeeees

Brief for the United States as Amicus Curiae

Supporting Petitioner, Hagen v. Utah, 510

U.S. 399 (1994) (No. 92-6281) .........c.c ce eeeeeeeeeee

Page

16

20

20

la

34a

37a

60a

88a

te RO RA Wi tana Brahe mi

TABLE OF CONTENTS —Curtiaracd

Brief for the United States in Opposition, Yank-

ton Sioux Tribe v. State of South Dakota, 796

F.2d 241 (8th Cir. 1986), (No. 86-1436) cert.

denied, 483 U.S. 1005 (1986) .........sceeseeeeseeeeeees

Brief for the United States as Amicus Curiae

Supporting Respondents, South Dakota v.

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

CRED, FE iain thnteniteichnestiensinirmetenanigeieaelinic

Transcript of Oral Argument at 13-21, Mattz v.

Arnett, 412 U.S. 481 (1973) (No. 71-1182)...

Transcript of Oral Argument at 9-24, Erickson v.

Feather decided with DeCoteau v. District

County Court, 420 U.S. 425 (1975) (No. 73-

DID ictsiencsticonsestsanthenticnnnsnnieeniiiatnisaiheiiitniaianinnnts

Transcript of Oral Argument at 18-30, Rosebud

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

CTR. Fae FIR Pi vsnitcaisinceveincesiusitsinessictislizndiscietanntansonnn

Transcript of Oral Argument at 18-27, Hagen v.

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

Transcript of Oral Argument at 43-52, South Da-

kota v. Yankton Sioux Tribe, 522 U.S. 329

(TIPE) GEOG. FR EGE) vc cieniisnicrsnessincnantisatisronsninens

Page

IV

TABLE OF AUTHORITIES

CASES: Page

Alaska v. Native Village of Venetie Tribal Gov-

Ovmaaadeal, SEZ UB. SHO CAFO) vacecscsscsessscesscsseceee 14

Bruguier v. Class, 599 N.W.2d 364 (S.D.1999).... - 3

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

SE CTE vsiohncnniatciniisitis aenlaabbinasadsiitebadasinsouns passim

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

Mattz v. Arnett, 412 U.S. 481 (1973) .......c ee 3

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

Lg RACE EA SISOS ie oat ANT, a EO ROO 1,3, 14

Seymour v. Superintendent, 368 U.S. 351 (1962).. 3

Solem v. Bartlett, 465 U.S. 463 (1984)... 3,5

South Dakota v. Bourland, 508 U.S. 679 (1993)... 7

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

PR iiiasidaatthcctin soekuacdeuniensadaaneiens ves passim

United States v. Dion, 752 F.2d 1261 (8th Cir.

1985) rev'd in part by, United States v. Dion,

PE as Fe FI x dccridicsismneicatostinlsncnaconnvadasen’ 5

Washington v. Yakima Indian Nation, 439 US.

RP adits tas cna kin tec kanetlasnsa statodniabtsackenes 7

United States v. Pelican, 232 U.S. 442 (1914)...... 14

Yankton Sioux Tribe v. Southern Missouri Waste

Dist., 99 F.3d 1439 (8th Cir. 1996)...............000. 9

Yankton Sioux Tribe v. Gaffey, No. 98-4042

(D.S.D. Oct. 5, 1998) (order denying motion

gf, RED Se CT rte PIE nr aPC 15

Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d

1135 (D.S.D. 1998) rev’d 188 F.3d 1010 (8th

Cir. 1999) petition for cert. filed (U.S. Mar. 7,

ED Aprctenreiieciciin i vinssasisbiptvaibaiaensi 15

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010

(8th Cir. 1999) petition for cert. filed (U.S.

Mar. 7, 2000) (No. 99-1490)......... cc cceeeeeeeeee 16, 18, 19

Vv

TABLE OF AUTHORITIES—Continued

STATUTES: Page

Act of August 15, 1894, 28 Stat. 286.0... 3

Be a: MIE davcahisinctonsisisnotanks nucshililcaadibeiinanindnadiinaicns 13, 14

OTHER AUTHORITIES:

Supreme Court Rake 3704) ......ccccccccrcccssrssrcasssssosees l

Brief for the United States as Amicus Curiae

supporting Respondent, Solem v. Bartlett, 465

U.S. 463 (1984) (No. 82-1253) occ eeeseeeeees 5

Brief for the United States, Yankton Sioux Tribe

v. South Dakota, 796 F.2d 241 (8th Cir. 1986),

cert. denied, 483 U.S. 1005 (1986).................... 5

Brief for United States as Amicus Curiae in Sup-

port of Plaintiffs-Appellees, South Dakota v.

Yankton Sioux Tribe, 99 F.3d 1439 (8th Cir.

Te Cy INET D sii cacsatendrsnanaccsstacéamssansannonanne 17

Brief of Charles Mix County, South Dakota in

Support of Petitioner, South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329 (1998) (No. 96-

Brief for the United States as Amicus Curiae

Supporting Respondents, South Dakota v.

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

A I as Disatacecnsiansiininenntobuconuninenennsannenane 6, 18

Transcript of Oral Argument, Hagen v. Utah, 510

U.S. 399 (1994) (No. 92-6281)............ccccccooeses 8

Transcript of Oral Argument, South Dakota v.

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

A Ris isin accadaiiesciiesisetuvaniniianatnasiectine 6, 10-11

Summary Judgment Brief for the United States,

Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d

1135 (D.S.D. 1998) (No. 98-4042) ........cceeeeeeees 16

vi

TABLE OF AUTORITIES—Continued

Page

Brief of Plaintiff-Intervenor/Appellee United

States of America, Yankton Sioux Tribe v.

Gaffey, 188 F.3d 1010 (8th Cir. 1999) (Nos-

SOIOIS, FOP, TAI, THAD) wesseiscrsisesaroseacseosens 14, 17, 20

Brief for Southern Missouri Waste Management

Dist., Yankton Sioux Tribe v. Gaffey, 188 F.3d

1010 (8th Cir. 1999) (Nos. 98-3893, 3894,

FE, SE -atcnsniniiskinessaisakinsiiasamiaiiaienimiiinen 20

Motion for Stay Pending Petition for Writ of Cer-

tiorari, Yankton Sioux Tribe v. Gafjey, 188

F.3d 1010 (8th Cir. 1999) (No. 98-3893, 3894,

SI, aii cesshicia ade teiuntabinaianencannmbniilmaniaiis 19

Petition for Writ of Certiorari, South Dakota v.

Yankton Sioux Tribe, No. 99-1490, (Mar. 7,

James M. Bekken, Comment, I/ndians—

Reservations-Jurisdictional Effect of Surplus

Land Statute Upon Traditional Boundaries of

an Indian Reservation, 52 N.D. L. Rev. 411

era ie siccehiitshiccionssabiancehsaaceeanabbutadaasdaaaiinubeamaduaieieie 13

Susan D. Campbell, Reservations: The Surplus

Lands Acts and the Question of Reservation

Disestablishment, 12 Am. Ind. L. Rev. 57

SFP acichivischaeninntiditiesncccatesaiannselmediiaipeminatatainess 13

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37(4), the Cities of Dante,

Geddes, Lake Andes, Pickstown, Platte, Ravinia and Wagner,

respectfully submit this brief as amici curiae, in support of

Petitioners State of South Dakota, Charles Mix County, and

Southern Missouri Waste Management District. Five of the

amici Cities, Wagner, Lake Andes, Ravinia, Dante and Picks-

town are located within the 1858 boundaries of the Yankton

reservation. Every one of these Cities is situated, in whole or

in part, on the former allotments now held in fee, that are

squarely at issue here. Two of the amici Cities, Geddes and

Platte, lie close to the 1858 boundaries. Each of the Cities

has operated, since its founding a few years after the 1894

Yankton Act, as if no reservation boundaries exist.

The vital concern that prompts the filing of this amici

curiae brief can be simply stated. Prior to this litigation, all

the courts and parties had recognized that the 1858 Yankton

reservation no longer existed. Now, a century later, a large

portion of the area of Charles Mix County, South Dakota,

including, in whole or in part, the amici Cities of Dante,

Geddes, Lake Andes, Pickstown, Ravinia and Wagner, is still

at issue. Consequently, the approximately 6,000 people that

reside in this area still face the prospect of being suddenly

thrust into the status of residents of an Indian reservation.

Here, ninety percent (90%) of the land is owned by non-

members and over two-thirds (2/3) of the residents are non-

members who reside on small farms and in small towns and

cities like Dante, Lake Andes, Pickstown, Ravinia, and

Wagner. In all, there are forty-nine (49) political

subdivisions within the county.

The expectations of the people in this area should not be

lightly regarded or simply set aside. Hagen v. Utah, 510 U.S.

399, 421 (1994); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584,

604-605 (1977); South Dakota v. Yankton Sioux Tribe, 522

U.S. 329, 356-357 (1998). Nevertheless, the United States

on

2

has consistently ignored this prudential consideration. For

these reasons, the issue is of grave importance to the

residents, the Cities and the other units of local governments

in Charles Mix County, South Dakota.

It is profoundly disturbing that reservation status is even a

possibility after this Court unequivocally rejected the

argument of the Yankton Sioux Tribe and United States that

would have resurrected the 1858 reservation boundaries in

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

(Yankton I). This amici curiae brief of the Cities will focus

on the role that the relentless advocacy of the United States

has played in this process in this case, and in other similar

cases.

Importantly, the United States did not even file a Petition

for Certiorari in this case when it was due on May 2, 2000.

This recent development is especially noteworthy in light of

the fact that on remand, the United States was granted leave

to intervene as a plaintiff in this litigation. The arguments the

United States submitted thereafter caused additional conflict

and confusion.

Clearly, the United States does not consider that the

rejection of the arguments submitted by the United States and

the Yankton Sioux Tribe in the court of appeals, present this

Court with a question that is certworthy. This is a significant

concession by the United States even if the United States

subsequently supports, in any fashion, the Petition filed by

the Yankton Sioux Tribe.

Moreover, although the amicus curiae brief that follows,

for the most part, was drafted prior to the recent decision of

the United States to not file a Petition in this case, it is still

significant because it summarizes the advocacy of the United

States in cases of this kind and sheds light on the

unprecedented nature of this decision of the United States.

The argument also provides a perspective from which any

subsequent submission by the United States in this case

3

should be viewed. All of this further supports the Petition for

a Writ of Certiorari filed by the State of South Dakota,

Charles Mix County and Southern Missouri Waste

Management District.

SUMMARY OF ARGUMENT

The Cities fully support the position set forth in the Petition

for Writ of Certiorari of the State of South Dakota, Charles

Mix County and Southern Missouri Waste Management

District. Pet. for Writ of Cert., South Dakota v. Yankton

Sioux Tribe, No. 99-1490, (Mar. 7, 2000). The Cities agree

that the decision of the panel conflicts squarely with the

relevant decisions of the Supreme Court of the State of South

Dakota and this Court.’ This brief will address the role of the

United States in the entire process.

A fair reading 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), Hagen v. Utah, 510 U.S. 399 (1994) and

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

clearly undermines the continuing reservation status of the

Yankton reservation recognized by the panel. Petitioners

highlight these important principles and, for that reason, they

will not be repeated here.

However, a proper perspective regarding the history of this

disestablishment litigation before this Court is also important

in order to accurately assess the Petitions in conjunction with

the principles set forth in these decisions. This brief is

intended to serve that purpose and provide that perspective.

' Bruguier v. Class, 599 N.W.2d 364 (S.D.1999). In this light, the

Cities further agree that something less than full plenary attention may be

appropriate in this instance. See Pet. for Writ of Cert., 3 n.2, South

Dakota v. Yankton Sioux Tribe, No. 99-1490).

4

In Yankton I, Charles Mix County reviewed the primary

arguments presented and rejected in each reservation

boundary case decided by this Court, as well as the historic

perspective available or established at the time. Br. of

Charles Mix County, South Dakota in Supp. of Pet’r, Yankton

I, 522 U.S. 329 (1998) (No. 96-1581). For the convenience

of the Court, the Cities have reproduced that brief in the

Cities’ appendix. See County Brief, Cities App. la-33a. To

complete the perspective, the Cities have also reproduced

every brief and oral argument that the United States has

submitted in this Court in these cases. Cities App. 34a-189a,

233a-272a.

The County brief recounts in summary fashion the case by

case developments in this litigation. See County Brief, City

App. 6a-20a, 27a-29a. A review of this chronology

establishes three overriding themes. First, as one would

expect, each time the Court was presented with this issue,

more primary sources were available from which a proper

historical perspective could be reconstructed and the intent of

Congress more conclusively ascertained. The opinions reflect

this documentation.

Second, the views of the United States are especially

noteworthy. The United States has never failed to advocate

the resurrection of original reservation boundaries,

presumably because of a perceived obligation to support the

tribal position. |The shifting, but very sophisticated,

arguments of the United States (for the most part repeatedly

rejected by this Court) have mainly served to perpetuate the

confusion and conflict in this area of federal Indian law,

fueling the prospect of additional litigation.

The central arguments of the United States are also closely

examined for another reason. As will be seen, the United

States has repeatedly made a number of important general

concessions in this Court, subsequent to DeCoteau, regarding

the effect of cession agreements, like this one, on Indian

5

reservations. These general cession concessions, made in

conjunction with submissions that urged the continued

recognition of other original reservation boundaries, cannot

be explained away. The views of the United States in this

regard, submitted to this Court, merit continued

consideration. See chronology summarized in County Brief,

Cities App. 15a-20a, 27a-29a. See also Briefs of United

States, Cities App. 88a-189a, Tr. of Oral Arguments, Cities

App. 250a-266a.

The County brief also addresses in chronological order, the

specific cession concessions of the United States regarding

the disestablishment of the 1858 Yankton Sioux reservation

effected by the passage of the 1894 Yankton Sioux cession

act. See County Brief, Cities App. 20a-27a. For example, in

1984, the United States formally submitted this Yankton

reservation disestablishment concession in the Eighth Circuit

Court of Appeals. United States v. Dion, 752 F.2d 1261 (8th

Cir. 1985) rev'd in part by, United States v. Dion, 476 U.S.

734 (1986). Id. at 20a, 21a. The United States did so in order

to maintain a cession distinction in Solem essential to its

argument there supporting original reservation boundaries.

Br. for the United States as Amicus Curiae Supp’g Resp't,

Solem v. Bartlett, 465 U.S. 463 (1984) (No. 82-1253).

Moreover, in other litigation also pending at the same time,

and also dealing with the 1858 Yankton Sioux reservation

and the 1894 Yankton Sioux cession act, the United States

acknowledged that this Court’s decision in DeCoteau

involved “a similar and contemporaneous cession agreement”

with “the same language” and “purpose.” Br. for the United

States, Yankton Sioux Tribe v. South Dakota, 796 F.2d 241

(8th Cir. 1986), cert. denied, 483 U.S. 1005 (1986), Cities

App. 199a, County Brief, Cities App. 26a-27a. Significantly,

Article XVIII of the 1894 act that the United States insisted

was so important in Yankton J, was not mentioned in any of

this. Act of August 15, 1894, 28 Stat. 286, 318.

6

To complete the perspective, the Cities review the briefs

and oral argument the United States submitted in Yankton I.

The Cities have appended the Briefs of the United States and

excerpts from the transcripts of the oral argument of the

United States in Yankton I that highlight the inconsistencies

in the position of the United States. Cities App. 202a-232a,

266a-272a. Further, the Cities review the analysis this Court

set forth in Yankton I that squarely rejected the position of the

United States. Finally, the Cities track the argument of the

United States since that time and the manner in which the

courts below have mistakenly relied upon the representations

of the United States in the process of deciding this case.

Because the United States sought an extension of time in

two separate stances in this Court, until May 2, 2000, we

did not really know what position the United States would

ultimately adopt before this Court in this litigation. We now

know that the United States will not file a Petition for

Certiorari in this Court. Clearly, this is a significant

concession.

Past experience suggests that the United States will

eventually support whatever argument the Yankton Sioux

Tribe chooses to advance. Of course, we could be pleasantly

surprised, but nothing in the arguments submitted to date by

the United States would support that supposition.

One thing is fairly certain. The United States will not

honor the position advanced by the Office of the Solicitor

General in this Court in Yankton / (i.e. that disestablishment

was inevitable if the argument of the United States regarding

Article XVIII was rejected and the 1858 Yankton boundaries

were not recognized by this Court, because nothing in the

Yankton documentation supported any other conclusion.)

Brief for United States, Cities App. 202a-232a; Tr. of Oral

Argument at 270a-27 1a, Yankton 1, 522 U.S. 329 (1998) (No.

96-1581), Cities App. 266a. This Court in Yankton | did

7

reject the argument of the United States and the 1858

reservation boundaries were not recognized.

Nevertheless, within days of the Yankton I decision, the

United States reneged on the inevitable disestablishment

argument it presented to this Court, even before the case was

remanded to the district court. Since then, the United States

has adopted several other conflicting arguments to continue

supporting the position of the Yankton Sioux Tribe that the

1858 reservation boundaries should be resurrected. And the

fact that the United States has decided not to file a Petition for

a Writ of Certiorari does not change any of this.

At some point in time, the “litigating position” of the

United States in this type of case should be subject to

heightened scrutiny. South Dakota v. Bourland, 508 US.

679, 697 (1993). See also Washington v. Yakima Indian

Nation, 439 U.S. 463, 477-478 n.20 (1979) (“{United States]

recently changed its position diametrically”).

In this regard, the fact that this Court did not extend an

invitation to the United States to express the views of the

United States at the petition stage in Yankton I is hopefully of

some significance. The rejection of the position of the United

State in Yankton I also merits special notation. And clearly,

the conflicting arguments the United States has submitted

since that time further substantiate the claim that no

principled reason exists to give any special credence to the

position of the United States in cases of this nature.

8

ARGUMENT

I. THE SHIFTING ARGUMENTS OF THE

UNITED STATES ARE WITHOUT MERIT.

A. Nothing In The Yankton Documents Indicated

That Article XVIII Of The 1894 Act Was

Intended To Alter The Fundamental Attributes

Of The Yankton Cession.

MR. MANN: Well, the language in DeCoteau said

that the Indians cede, sell, relinquish and convey to the

United States all their claim, right, title, and interest in

the land in question, and the statute in Rosebud stated

that the Indians cede, surrender, grant, and convey to the

United States all their claim, right, title, and interest in

and to all the land in question.

It would be rather difficult, I think, to construe that

language as language that allowed the Indians to retain

sovereignty over the land.

QUESTION: I think you're probably right. . . .

Tr. of Oral Argument at 25, Hagen, (No. 92-6281), Cities

App. 263a-264a (emphasis added).

In DeCoteau, the United States argued against cession

disestablishment and lost. After the decision of this Court in

DeCoteau, even the United States repeatedly acknowledged

that Congress routinely intended cession statutes such as the

Yankton cession to disestablish reservation areas. Brief of

United States, Cities App. 88a-189a. Before Yankton I, the

United States did not attempt to circumvent the holding in

DeCoteau regarding this type of cession, openly

acknowledging, as in Hagen, that it would be "rather

difficult" to support any other construction. Jd. at 263a-264a.

In Yankton I, the United States ignored DeCoteau and that

traditional cession analysis and advocated the "narrower"

position ultimately adopted by the Court of Appeals in

9

Yankton I. Yankton Sioux Tribe v. Southern Missouri Waste

Dist., 99 F.3d 1439, 1448, 1457 (8th Cir. 1996).

Nothing of substance could be cited by either the United

States or the panel majority in Yankton I to support this

anomalous and otherwise "rather difficult" construction.

Brief for United States, Cities App. at 32a. Moreover, the

prior views of the United States, summarized above,

precluded this "narrower" view--at least in the absence of

some affirmative evidence of congressional intent to the

contrary. In this respect, generic arguments loosely tied to

the Article XVIII savings clause should not have sufficed.

Article XVIII was not intended to alter the fundamental

attributes of the Yankton cession--and not a single word in

any of the Yankton documentation supported the position of

the United States. Nevertheless, the court of appeals was

persuaded by the argument of the United States.

This Court in Yankton I unanimously rejected the Article

XVIII savings clause argument of the United States. First,

the Court noted that the holding of the court of appeals keyed

on this circuitous argument:

The court relied primarily on the saving clause in Article

XVIII, reasoning that, given its “unusually expansive

language,” other sections of the 1894 Act “should be

read narrowly to minimize any conflict with the 1858

treaty.” Id.,at 1447.

Yankton I, 522 U.S. at 342 (emphasis added).

This Court then disposed of the argument in no uncertain

terms:

The United States urges a similarly “holistic”

construction of the agreement, which would presume

that the parties intended to modify the 1858 Treaty only

insofar as necessary to open the surplus lands for

settlement, without fundamentally altering the treaty’s

terms.

Such a literal construction of the saving clause, as, the

South Dakota Supreme Court noted in State v. Greger,

10

559 N.W. 2d 854, 863(1997), would “impugn the entire

OR sacs

Moreover, the Government’s contention that the Tribe

intended to cede some property but maintain the entire

reservation as its territory contradicts the common

understanding of the time: that tribal ownership was a

critical component of reservation status. . . .

Rather than read the saving clause in a manner that

eviscerates the agreement in which it appears, we give it

a “sensible construction” that avoids this “absurd

conclusion.”. . .

Yankton I, 522 U.S. at 345, 346.

The sensible construction adopted by the Court in Yankton I

reflects the traditional cession analysis set forth in DeCoteau.

B. The Cession Concessions Of The United States

In Yankton I With Reference To Disestablished

Reservation Boundaries Are Significant And

Controlling Here.

In the process of advancing the Article XVIII savings

clause argumentt, the United States conceded that but for the

presence of Article XVIII, the 1894 Yankton act would have

disestablished the 1858 Yankton reservation in the traditional

sense recognized by this Court in DeCoteau. In oral

argument, the United States, in response to direct questions

from this Court, described that process in the following

manner:

QUESTION: Now this—this is a totally checker

boarded situation?

MS. MCDOWELL: That’s. correct, And _ this

Court—. ...

MS. MCDOWELL: Well, the Court in DeCoteau, found

total diminishiment. But that was a different case, in several

respects, from this one. In the first place, of course, there

was no Savings clause preserving rights under an earlier

treaty... .

11

QUESTION: But do you—do you agree with both

counsel, it seemed to me, that the choice is either we accept

your argument based on Article XVIII or there's a

diminishment?

MS. MCDOWELL: That’s correct.

QUESTION: That there is no such thing as

diminishment applicable on these facts?

MS. MCDOWELL: That’s correct. Diminishment

seems to be limited to cases such as Roseboud, where there

was a selling or a ceding of a part of the reservation in so

many words, as opposed to this sort of situation

Tr. Oral Argument, Yankton I, Cities App. 270a-271a.

(emphasis added).

The totally checker boarded situation or “total

diminishment” holding of the Court in DeCoteau (in the

words of the United States), resulted from the extinguishment

of the reservation boundaries by the act at issue there.

DeCoteau, 420 U.S. at 427 n.2, 446-447. Also, as the United

States further conceded in response to the last question from

this Court, the Yankton cession was not a diminishment

where there was only a “ceding of a part of the reservation”

(‘as opposed to this sort of situation”). Id. (emphasis added).

The Yankton cession was a cession of all of the reservation

that was not allotted. On these facts, diminishment in the

sense of maintaining any portion of the 1858 reservation

boundary was not possible, as the United States conceded.

For this reason, the entire 1858 reservation boundary was

within the scope of the cession in Yankton I. In this respect,

the rejection of the Article XVIII savings clause argument of

the United States by this Court resulted in the extinguishment

of the 1858 reservation boundary, “total diminishment” of the

1858 Yankton reservation. The United States clearly

conceded the point.

12

C. This Court Has Made Clear That The 1858

Reservation Boundaries Of The Yankton

Reservation Were Not Maintained.

The 1894 Act is also readily distinguishable from

surplus land Acts that the Court has interpreted as

maintaining reservation boundaries. . . . The Tribe

asserts that because that clause purported to conserve the

provisions of the 1858 Treaty, the existing reservation

boundaries were maintained. . . . [W]e conclude that the

saving clause pertains to the continuance of annuities,

not the 1858 borders.

Yankton I, 522 U.S. at 345-347 (emphasis added).

The Cities do not disagree with the argument in the Petition

that the manner in which this Court in Yankton I treated the

operative cession language should be controlling in resolving

this case. In fact, as a practical matter, a fair reading of

Yankton I and other precedent of this Court almost mandates

this conclusion.

In order to simplify the issue, however, the Cities have

approached the question of reservation disestablishment in

this amici curiae brief from a different perspective, although

the end result is still the same. We have focused directly on

this Court’s discussion of the 1858 reservation boundaries.

The Cities specifically address the shifting position of the

United States with reference to that discussion and to the

holding of the district court reinstating the 1858 reservation

boundaries. All of this clearly establishes that the decisions

of the district court and the Eighth Circuit Court of Appeals

are both erroneous.

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

329 (1998)

(a) As a preliminary matter, it is logical to focus on the

1858 reservation boundaries because that is the manner in

which cession precedent has been traditionally understood.

In other words, if a cession removed lands from a reservation,

it did so by extinguishing the reservation boundaries around

13

the area affected. For decades, every court in every case,

every federal Indian law text, every historian and every

commentator that reviewed this precedent have agreed on

this fundamental point.

In this case, the United States can not cite a single example

to the contrary. On the other hand, references to support this

understanding are commonplace. As early as 1975, even the

title of a note in the North Dakota Law Review reflected

this understanding; INDIANS-RESERVATIONS-JURISDIC-

TIONAL EFFECT OF SURPLUS LAND STATUTE UPON

TRADITIONAL BOUNDARIES OF AN _ INDIAN

RESERVATION. James M. Bekken, Comment, /ndians—

Reservations—Jurisdictional Effect of Surplus Land Statute

Upon Traditional Boundaries of an Indian Reservation, 52

N.D. L. Rev. 411, 417 (1975) (emphasis added).

In the text of the note, the analysis is directed to the effect

of surplus land statutes on reservation boundaries. For

example, in the discussion of DeCoteau v. District County

Court, 420 U.S. 425 (1975) (the cession this Court in Yankton

1, 522 U.S. at 344, described as “parallel” to the Yankton Act)

the law student structured the statement of the issue in

boundary terms:

DeCoteau has clearly shown that to determine the effect

a particular statute had on reservation boundaries the

court must. .”. .

Bekken, supra at 418 (emphasis added).

This concentration on the extinguishment of reservation

boundaries is also routinely acknowledged even by tribal

advocates who disagree with reservation disestablishment.

For example, see the “boundaries” discussion throughout

Susan D. Campbell, Reservations: The Surplus Lands Acts

and the Question of Reservation Disestablishment, 12 Am.

Ind. L. Rev. 57, 58, 63, 64, 71, 75, 96 (1984).

(b) With the extinguishment of reservation boundaries, it

has also followed, a fortiori, that the Indian country

14

remaining in the affected area, if any, would be either

dependent Indian communities under 18 U.S.C. § 1151(b) or

Indian trust allotments under 18 U.S.C. § 1151(c). Every

court in every case, every federal Indian law text, every

historian and every commentator are also in agreement in

this instance.’

In 1914, this Court made this point clear in United States v.

Pelican, 232 U.S. 442 (1914) with respect to Indian trust

allotments. In this situation, allotments subsequently held in

fee (the primary issue here) are no longer “Indian country.”

Pelican was codified in 18 U.S.C. § 1151(c).’

Moreover, a recognition that this Court expressly held that

the 1858 reservation boundaries were extinguished by this

cession for a sum certain is not in any way inconsistent with

the fact that the Court specifically reserved the question of

whether the reservation was disestablished altogether.

Yankton I, 522 U.S. at 358. That entirely distinct issue must

still be decided in this case.

For these reasons, the Cities respectfully submit that this

Court intended that the subject of the remand would be

limited to the “reservation status” of only existing trust

allotments, dependent Indian communities, and other trust

lands. When reservation boundaries are extinguished, this

would ordinarily be the case. See the reference in Yankton I

to “conflicting understandings about the status of the

reservation” and the “fact that the tribe continues to own land

?'In the court of appeals, even the United States, in the alternative,

finally acknowledged the legitimacy of this analysis. Br. of Plaintiff-

Intervenor/Appellee United States of America at 26 n. 3, Yankton II, 188

F.3d 1010 (8th Cir. 1999) (Nos. 98-3893, 3894, 3896, 3900).

>This Court recently reaffirmed and explained the analysis and

codification of Pelican in Alaska v. Native Village of Venetie Tribal

Government, 522 U.S. 520, 528-529 (1998). See also DeCoteau, 420 U.S.

at 427 n.2, 446-447, Rosebud, 430 U.S. at 586, 601 n.24, 613-615 n.47,

615-616 n.48.

15

in common.” Yankton I, 522 U.S. at 358. These contentions

do not directly implicate the status of fee lands, which are

predominantly owned and populated by non-members. See

Yankton I, 522 U.S. at 356-357.

In other words, Yankton I clearly resolved the status of the

1858 reservation boundaries. See Yankton I, 522 U.S. at 333,

343, 345, 345-346, 347, and 353.

Because of the law of the case, the 1858 boundary issue

should not have even been addressed in this remand.

All else aside, this Court made clear in Yankton I that the

1858 “reservation boundaries" were not "retained" or

"maintained"—"we conclude. . . continuance of annuities, not

the 1858 borders." Id. at 347 (emphasis added). At the very

least, the Court decided that question. The Court stated that

the "case" presented the question of whether "Congress

diminished the boundaries" of the Yankton Sioux

Reservation. Jd. at 333 (emphasis added). The unresolved

issue, as the Court also clearly stated, was "whether Congress

disestablished the reservation altogether." /d. at 358. That

issue should not have involved resurrecting the status of 1858

reservation boundaries.

2. Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d 1135

(D.S.D. 1998) rev’d 188 F.3d 1010 (8th Cir. 1999) petition

for cert. filed (U.S. Mar. 7, 2000) (No. 99-1490).

The district court ignored all of the above and simply held

that even after Yankton I, the 1858 reservation boundaries

were still intact. Yankton II, 14 F.Supp.2d at 1143. (“If the

original exterior boundaries remain, as it appears they do

from the Supreme Court’s opinion”). See also Yankton Il,

No. 98-4042 (D.S.D. Oct. 5, 1998) (order denying motion for

new trial at 3) (“The Court has now held that the remaining

lands within the 1858 boundaries remain a part of the

Yankton Sioux Reservation”). The district court was clearly

mistaken (for the second time).

16

The strength of that conclusion is further supported by an

express concession of the United States in the remand in

June, 1998. At that time, the United States conceded, in the

district court, that this Court in Yankton I recognized that

Congress did not intend to maintain the 1858 reservation

boundaries:

[T]he United States Supreme Court found the savings

clause insufficient to maintain the _ reservation

boundaries of the 1858 Treaty here, and thus did not

prevent diminishment of the Reservation. .. .

Summ. J. Br. for the United States at 22 n. 5, Yankton II, 14

F.Supp.2d 1135 (D.S.D. 1998) (No. 98-4042) (emphasis

added). See also Summ. J. Br. for the United States at 2, 5, 6.

Nevertheless, the United States made other arguments in

support of the position of the Yankton Sioux Tribe.

After the district court recognized the 1858 reservation

boundaries in Yankton II, the United States never again

mentioned this extinguished boundary concession or the

manner in which the holding of the district court conflicted

with the express language of this Court in Yankton I.

3. Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010

(8th Cir. 1999) petition for cert. filed (U.S. Mar. 7, 2000)

(No. 99-1490).

(a) In their brief to the court of appeals, the United States

avoided any discussion of the express conflict between the

holding of the district court and the conclusion of this Court

in Yankton I regarding the 1858 reservation boundaries. As a

result, the brief for the United States did not affirmatively

support the tribal claim that the district court was correct in

concluding that the 1858 reservation boundaries still exist.

The only reference that even indirectly addresses this

aspect of the 1858 boundaries issue appears in the conclusion

of the brief of the United States. The United States

concluded:

The Yankton Sioux Reservation continues to exist in

diminished form, encompassing the unceded lands under

17

the 1894 Act. The language of the 1894 Act, the

legislative and negotiation history, and other

surrounding circumstances support diminishment. . . .

Br. of Plaintiff-Intervenor/Appellee United States of America

at 52, Yankton II, 188 F.3d 1010 (8th Cir. 1999) (Nos. 98-

3893, 3894, 3896, 3900) (emphasis added).

The United States never explained how the Yankton

reservation could exist in this “diminished form” nor exactly

what the United States meant by “diminishment” (except, of

course, to claim the “diminished form” encompasses all

unceded land). However, one thing is perfectly clear. This

“diminished form” argument conflicts with everything the

United States told this Court in Yankton I. See the “total

diminishment” discussion supra.

According to the United States in Yankton I, nothing in the

Yankton documentation supported diminishment in any form

whatsoever. For example, in the court of appeals in Yankton I,

the views of the United States mirrored those of the Yankton

Sioux Tribe with respect to the lack of any evidence to

support changed, altered, or diminished _ reservation

boundaries:

The 1892 Agreement, the ratifying Act, and other

legislative and historical evidence do not indicate an

intent by Congress to diminish or disestablish the

Reservation.

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

Appellees at 3, Yankton 1, 99 F.3d 1439 (8th Cir. 1996) (No.

95-2647) (emphasis added). See also id. at 4, 5, 8-15.

Significantly, in this Court in Yankton I, the United States,

as amicus curiae, again agreed with this aspect of the

historical record:

But there was no discussion of whether the Agreement,

if ratified, would alter the boundaries of the Reservation.

Solicitor Cohen notes . . . Since the 1892 agreement

there has been no redefinition by Congress of the

Yankton Reservation ....

18

Br. for the United States as Amicus Curiae Supporting Resp'ts

at 5, 25, Yankton I, 522 U.S. 329 (1998) (No. 96-1581), 206a,

226a, (emphasis added). Cities App.

The court of appeals viewed the argument to recognize the

Yankton reservation in the form resurrected by the district

court in light of all of the above. In addition to the opinion of

this Court, all Yankton I briefs and related documents were

made part of the record in Yankton II. Moreover, in oral

argument members of the panel in the court of appeals in

Yankton II expressly referenced the transcript of oral

argument in this Court in Yankton I directed to the scope of

the cession. |

In this instance, the United States could not convince the

court of appeals to affirm the holding of the district court.

Instead, the court of appeals expressly confirmed that the

1858 reservation boundaries were extinguished by the 1894

Yankton act. See Yankton II, 188 F.3d at 1020-1021, 1030.

This part of the conclusion of the court of appeals is clearly

correct. For this reason, nevertheless, the United States will

probably attempt to skirt this issue again and not directly

address the status of the 1858 reservation boundaries. If the

United States repeats the argument in this Court in support of

the holding of the district court, its submission will not

contain any direct reference to the status of the 1858

reservation boundaries. Instead, the United States will

advance some other argument that otherwise generally

supports the holding of the district court. The failure of the

United States to specifically address the status of the 1858

reservation boundaries undermines the position of the United

States.

(b) In other respects, the holding of the court of appeals

is fundamentally flawed. With specific reference to the

diminished reservation, the holding of the court of appeals is

suspect for several reasons. First, as even the Yankton Sioux

Tribe noted in its application for a stay, the court of appeals

19

has adopted a “third” option. Mot. for Stay Pending Pet. for

Writ of Cert., Yankton II, 188 F.3d 1010 (8th Cir. 1999) (No.

98-3893, 3894, 3896, 3900). Importantly, no one, including

the United States, argued that this third option was supported

by anything in the Yankton documentation. Moreover, no one

even suggested that the third option was a possibility in the

district court or the court of appeals. As a result, the third

option issue was not briefed or argued in either the district

- court or the court of appeals. ©

Importantly, the Yankton Sioux Tribe agrees with

Petitioners that the “third option” holding of the court of

appeals appears to be “inconsistent with all prior Supreme

Court cases.” Id. at 1-2.

The parties to this appeal argued in their petitions for

rehearing that prior Supreme court cases allowed for two

possible resolutions to the captioned appeal [1858

reservation boundaries in tact or extinguished]. The

circuit decision creates a third option, which appears to

be inconsistent with all prior Supreme court cases.

Whether the Supreme Court will approve this third

option is clearly a substantial issue.

Id. at 1-2 (emphasis added).

Although the Cities disagree with the Tribe on the reason

for the inconsistency, whether this Court eventually agrees

with the Tribe (1858 reservation boundaries intact) or with

the Petitioners, State of South Dakota, Charles Mix County,

and Southern Missouri Waste Management District (1858

reservation boundaries extinguished) is really beside the point

at this stage in the proceedings. The important fact is that the

parties agree that the “third option” holding of the court of

appeals is inconsistent with precedent from this Court; the

parties further agree that this inconsistency presents this

Court with a substantial question.

Moreover, the “diminished form” of the Yankton

reservation now recognized by the court of appeals in

Yankton II, also conflicts with the testimony of both of the

20

expert witnesses for the United States in district court in

Yankton II (these were the only witnesses to testify). And the

recently adopted litigation position of the United States that

boldly asserts that the Yankton legislation is truly “unique”

adds nothing to the credibility of this position. Br. of PI.-

Intervenor/Appellee United States of America at 10, Yankton

II, 188 F.3d 1010 (8th Cir. 1999) (Nos. 98-3893, 3894, 3896,

3900). The Yankton documentation also squarely refutes this

notion. See the discussion in the Southern Missouri Waste

Management District brief under subheading I-A, “A

SUMMARY OVERVIEW ESTABLISHES THAT THE

CONGRESSIONAL PROCESS FOR THE YANKTON ACT

FOLLOWED A STANDARD OPERATING PROCEDURE”

at 7-12, Br. for Southern Missouri Waste Management Dist.

at 7-12, Yankton II, 188 F.3d 1010 (8th Cir. 1999) (Nos. 98-

3893, 3894, 3896, 3900).

D. The Fact That The United States Has Decided

Not To File A Petition Is Important.

This is a significant concession. In light of the nature of the

advocacy set forth supra, this concession further supports the

Petition for a Writ of Certiorari filed by the State of South

Dakota, Charles Mix County and Southern Missouri Waste

Management District.

CONCLUSION

For the foregoing reasons, and those stated in the Petition

of the State of South Dakota, Charles Mix County and

Southern Missouri Waste Management District, that Petition

for Writ of Certiorari should be granted.

Respectfully submitted,

TIMOTHY R. WHALEN

Counsel of Record

WHALEN LAW OFFICE, P.C.

P. O. Box 127

Lake Andes, SD 57356

Dated May 8, 2000 (605) 487-7645