# Amicus Curiae Brief — South Dakota v. Yankton Sioux Tribe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1261

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0724%3A3. Public record. Not legal advice.