Petition for Writ of Certiorari — South Dakota v. Yankton Sioux Tribe

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(| ) Supreme Court, u.g,

Y FILED

”~ 8% 3 MAR 6 - 2000

No.

In The

Supreme Court of the United States

YANKTON SIOUX TRIBE, and its individual members,

United States of America, on its own behalf

and for the benefit of the Yankton Sioux Tribe,

Petitioners,

MATT GAFFEY, States 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; WILLIAM JANKLOW,

Governor of South Dakota; MARK W. BARNETT,

Attorney General of South Dakota,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Mary T. WYNNE

Counsel of Record

Wynne Law FirM

212 N. 2nd Avenue, Suite 205

Okanogan, WA 98840

(509) 422-6267

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether allotments made under the General Allot-

ment Act, 25 U.S.C. § 331 et seq. cease to be “Indian

Country” if the allotments are conveyed to non-

Indians.

Whether the Yankton Sioux Reservation was dimin-

ished by the conveyance of individual Indian allot-

ments to non-Indians in fee simple.

PARTIES TO PROCEEDING BELOW

Petitioner is the Yankton Sioux Tribe and its individ-

ual members. A full list of case names and parties is

contained in the caption to this petition.

TABLE OF CONTENTS

HE a ee

CONSTITUTIONAL AND STATUTORY PROVI-

I. THE EIGHTH CIRCUIT COURT DECISION IS

IN CONFLICT WITH SETTLED LAW THAT

ALLOTTED LANDS RETAIN THEIR RESERVA-

TION STATUS NOTWITHSTANDING THE

ISSUANCE OF FEE PATENT..................

II. CORRECTION OF THE CIRCUIT COURT

ERROR IS OF EXCEPTIONAL IMPORTANCE

TO INDIAN TRIBES AND PEOPLE LIVING ON

FORMER ALLOTMENTS THROUGHOUT THE

siete elt LS. a ae

Il. THE EIGHTH CIRCUIT OPINION IS IN DIRECT

CONFLICT WITH A DECISION OF THE TENTH

CIRCUIT COURT OF APPEALS ................

SI cians cb od bcc a wdcu dunevcuedvcens

TABLE OF AUTHORITIES

Page

SupREME Court CAsEs

California v. Cabazon Band of Mission Indians, 480

EB Me og er ney eres 15

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

bi Pe eres Fae rrr ep eng trae 9, 10, 15

Duchesne Country v. Ute Tribe of Uintah, Ouray

pereeratent, Sra Gi. Beer CRO oki ek es eee cd wes 10

Hagen v. Uist, 510 US. 399 (2994) 2 cco cece: S. ii, Zs

Kennerly v. District Court, 400 U.S. 423 (1971)........ 15

Matiz 7. Aveett, 452 US. SR CO a) cv c ic cccewweccns 9, 12

Moe v. Confederated Salish and Kootenai Tribes of the

Flathead Reservation, 425 U.S. 463 (1976)........... 10

Moutang: 2. U5,5., GO US. S46 (ISB c ks 6 ase icacdcs 5, 10

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

PI i 0 cinarlc Ca wee eee OAs PEON RE ERIC 5

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

Seymour v. Superintendent, 368 U.S. 351 (1962) ..... 9, 16

Solem v. Bartlett, 465 U.S. 463 (1984) ....6, 8, 9, 11, 14, 15

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

bi SEN ery ee eye eee tata 1 2s ee ee

United States v. Celestine, 215 U.S. 278 (1909) ........ 11

United States v. Dion, 476 U.S. 734 (1986)............ 11

United States v. John, 437 U.S. 634 (1978) ......... 10, 15

United States v. Nice, 241 U.S. 591 (1916) ............ 10

———————S Ke. -

TABLE OF AUTHORITIES - Continued

United States v. Pelican, 232 U.S. 442 § 2) | 9, 11

Circuit Court Cases

Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987)....... 8

Ute Indian Tribe of the Unitah and Ouray Reservation

v. State of Utah, 114 F.3d 1513 (10th Cir.

COP Pie thee ites veka eee 20, 21, 22

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir.

“RP cane bio veeeee el eee Re ta @

District Court Cases

Ute Indian Tribe v. State of Utah, et al., 521 F. Supp.

were Cee TO CON os ts as cruaaks cee 21

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

RAE «Ks ban de ce Cea eee eee ee 1,5

CONSTITUTIONS, STATUTES, AND EXECUTIVE MATERIALS

i SE, PO: POS ccs cciatereses i 2

28 Stat. 286, 314 (1894 Act)............. otaha Ribas acne es 3

18 U.S.C. §§ 1151(a), 1154, 1156..... > 6, 35, 6 %. 2

25 U.S.C. § 331 (General Allotment Act of 1887) ..2, 12

MUSE 4 eee .

25 U.S.C. § 349 (Burke Act of 1906)................. 13

MUGe. § Bie. eee s

SSL. 495... 8

BUAC 69. eee 13

TABLE OF AUTHORITIES - Continued

25 U.S.C. §§ 461 et seq. (Indian Reorganization

96 USS. 6 SOHN 5. 660s bee

USS: 6 ON. 6 dccckereeeee

United States Department of the Interior, Federal

FOREN EOW TED-217 (TSSG) sos occ saviescicrenccer

Books AND PERIODICALS

Felix S. Cohen's Handbook of Federal Indian Law

fi i PEPE EP eee ee re eee 7,

Janet A. McDonnell, The Dispossession of the Ameri-

can Indian, 1887-1934 (1991)................24..

Richard B. Morris, Encyclopedia of American History

Peeper rer rr ererer rrr yg mere oN

Joseph A. Myers & Elbridge Coochise, Develop-

ment of Tribal Courts: Past, Present, and Future, 79

Judicature 147 Nov-Dec 1995 ..................

Newton, Tribal Court Praxis: One Year in the Life of

Twenty Indian Tribal Courts, 22 American Indian

Ce DOWNES, Beek BOP 6465 eb Khao ee ae ee

J. Clifford Wallace, A New Era of Federal-Tribal

Court Cooperation, Judicature 150 Nov.-Dec. 1995 ....

Page

PETITION FOR WRIT OF CERTIORARI

The Yankton Sioux Tribe respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

There are five reported decisions in this matter. The

judgment of the Court of Appeals from which the tribe

petitions for a writ of certiorari is based upon an opinion

reported at 188 F.3d 1010 (August 31, 1999) hereinafter

Yankton II, rehearing denied December 8, 1999. The Dis-

trict Court opinion is contained at 14 F. Supp. 2d 1135

(D.S.D. 1998).

The above opinions are from proceedings after

remand from this Court, in an opinion at 522 U.S. 329,

hereinafter, Yankton-I. Yankton I reversed in part the Cir-

cuit Court opinion at 99 F.3d 1439 (8th Cir. 1996), vacated

141 F.3d 798 (8th Cir. 1998). The original District Court

decision is reported at 890 F. Supp. 878 (D.S.D. 1995).

JURISDICTION

The judgment of the court of appeals was entered on

August 31, 1999. A petition for rehearing was denied on

December 8, 1999. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I of the Uniteu States Constitution states in

pertinent part:

All legislative Powers herein granted shall be

vested in a Congress of the United States.

U.S. Const. Art. I § 1.

The applicable portion of the General Allotment Act,

codified at 25 U.S.C. § 331 states:

In all cases where any tribe or band of Indians

has been or shall be located upon any reserva-

tion created for their use by treaty stipulation,

Act of Congress, or executive order, the Presi-

dent shall be authorized to cause the same or

any part thereof to be surveyed or re-surveyed

whenever in his opinion such reservation or any

part may be advantageously utilized for agri-

cultural or grazing purposes by such Indians,

and cause allotment to each Indian located

thereon to be made in such areas as in his opin-

ion may be for their best interest not to exceed

eighty acres of agricultural or one hundred and

sixty acres of grazing land to any one Indian.

And whenever it shall appear to the President

that lands on any Indian reservation subject to

allotment by authority of law have been or may

be brought within any irrigation project, he may

cause allotments of such irrigable lands to be

made to the Indians entitled thereto in such

areas as may be for their best interest not to

exceed, however, forty acres to any one Indian,

and such irrigable land shall be held to be equal

in quantity to twice the number of acres of non-

irrigable agricultural land and four times the

number or acres of non-irrigable grazing land:

Provided, That the remaining area to which any

Indian may be entitled under existing law after

he shall have received his proportion of irrig-

able land on the basis of equalization herein

established may be allotted to him for non-irrig-

able agricultural or grazing lands: Provided fur-

ther, That where a treaty or Act of Congress

setting apart such reservation herein authorized,

the President shall cause allotments on such

reservations to be made in quantity as specified

in such treaty or Act, subject, however, to the

basis of equalization between irrigable and non-

irrigable lands established in this Act, with the

consent of the Indians expressed in such manner

as the President in his discretion may require.

28 Stat. 286, 314 (1894 Act) states in part:

ARTICLE I. The Yankton tribe of Dakota or

Sioux Indians hereby cede, sell, relinquish, and

convey to the United States all their claim, right,

title, and interest in and to all the unallotted

lands within the limits of the reservation set

apart to said Indians as aforesaid.

ARTICLE II. In consideration for the lands

ceded, sold, relinquished, and conveyed to the

United States as aforesaid, the United States

stipulates and agrees to pay to the said Yankton

tribe of Sioux Indians the sum of six hundred

thousand dollars ($600,000), as hereinbefore

provided for.

18 U.S.C. § 1151(a) states:

Except as otherwise provided in §§ 1154 and

1156 of this title, the term “Indian Country,” as

used in this chapter, means (a) all land within

the limits of any Indian reservation under the

jurisdiction of the United States Government,

notwithstanding the issuance of any patent, and,

including rights-of-way running through the

reservation,. .. .

STATEMENT OF THE CASE

In South Dakota v. Yankton Sioux Tribe, 522 U.S. 329

(1998) or Yankton I, this Court held that the 1894 Act of

Congress (ratifying the 1892 Agreement with the Yankton

Sioux Tribe for the sale of approximately 168,000 acres of

surplus tribal lands) diminished the reservation by

removing from the Reservation the unallotted, ceded

lands which were opened for non-Indian settlement. This

meant that, in 1894, the Reservation was diminished by

approximately 1/3 with the remaining Reservation either

held by the United States for tribal benefit, held as fed-

eral reserved land,! or held by the U.S. as individual trust

property. In Yankton I, this Court did not need to deter-

mine the status of either allotted or federally reserved

lands, and the Court explicitly restricted its holding to

whether unallotted, ceded lands were severed from the

Reservation.

On March 13, 1998, the Yankton Sioux Tribe filed a

complaint for injunctive and declaratory relief in the U.S.

District Court for the District of South Dakota, requesting

judicial clarification that all lands within the original

1 The “reserved lands” are those lands which were used for

agency, school, and other tribal purposes. Under Article VIII of

the 1892 agreement, the U.S. agreed not to sell those lands or

open them for settlement. 14 F. Supp. at 1159.

—"

boundaries of the Yankton Sioux Reservation not “ceded”

by the 1894 Act of Congress constituted Indian Country,

thus falling within the jurisdiction of the Yankton Sioux

Tribe and the United States.2 In response, the State erro-

neously argued that, in Yankton I, the Supreme Court

determined that the Yankton Sioux Reservation had been

disestablished. Federal jurisdiction over the Tribe’s com-

plaint was based upon 28 U.S.C. § 1331. That matter was

consolidated with the case remanded from the Supreme

Court.

Following an evidentiary hearing, and detailed

review of the substantial record in this matter, the District

Court held that the 53rd Congress had not disestablished

the Yankton Sioux Reservation. The Court also held that

all allotted lands remained part of the reservation, not-

withstanding their fee status. Yankton Sioux Tribe v. Gaffey,

14 F. Supp. 2d 1135, 1137 (D.S.D. 1998).

The Eight Circuit Court of Appeals upheld in part,

and reversed in part, the District Court decision. After

applying the proper test to determine whether the Reser-

vation was disestablished, the Circuit Court upheld the

District Court ruling that, based upon the unique facts of

2 The primary jurisdiction at issue is the Tribe’s jurisdiction

over tribal member in the former allotments. Tribes have very

limited jurisdiction over non-Indians. Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978) (Tribes do not have criminal

jurisdiction over non-Indians.); Montana v. United States, 450

U.S. 544 (1981) (Tribe’s civil jurisdiction over non-members

limited to issues impacting tribal welfare and self-government,

unless the nonmember has entered into a consensual relation

with the Tribe.)

this case, the Reservation had not been disestablished.*

Contrary to 18 U.S.C. § 1151(a), prior Supreme Court

precedent, and the District Court decision, the Circuit

Court then determined that, although the Reservation

was not disestablished in 1894, Congress intended that

allotted lands that passed out of Indian hands subsequent

to 1894 ceased to be “Indian Country” as that term is

defined at 18 U.S.C. § 1151. The position adopted by the

Circuit Court had not been briefed or argued by any

party to the case.

DISCUSSION OF LAW

I. THE EIGHTH CIRCUIT COURT DECISION IS IN

CONFLICT WITH SETTLED LAW THAT ALLOT-

TED LANDS RETAIN THEIR RESERVATION STA-

TUS NOTWITHSTANDING THE ISSUANCE OF

FEE PATENT.

The fundamental question in the captioned matter is

whether allotted lands, which retained their reservation

status after the Yankton Sioux Indian Reservation was

allotted in 1894, ceased to be part of the Reservation if

they were subsequently conveyed to non-Indian owner-

ship. Although this Court has held that this issue has

been “squarely put to rest” both by Supreme Court case

law and federal statute, Solem v. Bartlett, 465 U.S. 463

(1984), the Eighth Circuit did not follow those binding

authorities. The Supreme Court must grant the writ of

* The Tribe does not petition for review of the fact-based

determination that the Reservation was not disestablished.

certiorari and again re-settle this important issue of law.

Until this issue is resolved, it will arise repeatedly in

litigation involving Indian Tribes throughout the conti-

nental United States, and it will return to this Court until

resolved.4

The allotments at issue were Reservation in 1894. The

Eighth Circuit Court of Appeals correctly held that the

1894 Congress diminished, but did not disestablish the

Reservation. Yankton II, at 1028, 1030. The Court also held

that in 1894 the Reservation comprised all lands within

the exterior boundaries of the Reservation, except the

ceded lands conveyed to the United States and opened to

non-Indian settlement. Yankton II, at 1028, 1030. Thus, in

1894, the Reservation contained approximately 260,000

acres of allotments, Yankton IT, at 1013, n.3, and additional

land held by the United States but reserved and not open

for settlement. Yankton II, at 1030.

Allotment of the Yankton Sioux Reservation was

made under the General Allotment Act of 1887. Yankton I,

at 1013, n.3; 14 F. Supp. 2d at 1140-41. After Congress

approved the 1894 Act, many Indians received fee title

patents to their allotted lands. Fee patents to those lands

were issued under the General Allotment Act, as subse-

quently modified by the Burke Act.° The policies of allot-

ment and fee patenting of land were later repudiated by

+ As discussed more fully below, the Circuit Court decision

would substantially affect federal and tribal court jurisdiction,

and would void many prior decisions of those Courts.

> Under these acts, fee patents could issue at the

completion of the trust period, or under the inconsistently

executed Burke Act, see Felix S. Cohen’s Handbook of Federal

Indian Law 136-138 (1982). Fee patents also frequently issued

administrative practice and by subsequent acts of Con-

gress. 25 U.S.C. § 352(a) (Cancellation Act); 25 U.S.C.

§ 461 et seq. (Indian Reorganization Act).

Contrary to settled law regarding the effect of allot-

ments and subsequent fee-patenting of such land, the

Eighth Circuit Court of Appeals held that if a patent

issued and the land “passed out of Indian hands”, it

ceased to be part of the Reservation. Yankton II, at 1028,

1030.° The Circuit Court held that, between 1894 and the

end of fee-patenting of land in 1934, the Reservation was

further diminished from 260,000 acres to approximately

36,000 acres. Id. at 1030. The Circuit Court decision is

contrary to 100 years of Supreme Court precedent that

former allotments continue to be Reservation land not-

withstanding the subsequent fee-patent or conveyance of

allotments to non-Indians. Solem v. Bartlett, 465 U.S. 463

(1984). In 1948 Congress adopted and codified these

Supreme Court precedents at 18 U.S.C. § 1151(a).”

upon death of the allottee. 25 U.S.C. § 373 (testate succession);

25 U.S.C. § 348 (intestate succession).

Allotments are conveyed to non-Indians by sale, through

probate, or through foreclosure, including tax foreclosure. See,

e.g., Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987)

6 Allotments for which fee patents were not issued or

which were retained by Indians remain Reservation to this day

under the Circuit Court decision. Yankton II, at 1030.

7 As discussed more fully at page 21, the State has

acknowledged that the Circuit decision was contrary to this

clearly established precedent.

A. The Circuit Court decision is contrary to consis-

tent, well-reasoned decisions of the Supreme

Court on this issue of law.

The Circuit Court decision is in conflict with

repeated decisions of the Supreme Court that hold that,

unless a reservation is disestablished, former allotments

unquestionably remain “Indian Country,” whether or not

they have been transferred to non-Indian ownership.

Solem v. Bartlett, 465 U.S. 463 (1984); United States v.

Pelican, 232 U.S. 442 (1914); United States v. Celestine, 215

U.S. 278 (1909).

There is simply no decision from this Court or any

Circuit Court, other than the Eighth Circuit decision at

issue, that holds that an Indian Reservation_has not been

disestablished, but which then holds that the Reservation

is diminished by the later conveyance to non-Indians of

allotted land. That view, repeatedly rejected by the

Supreme Court, represents an aberration which, unless

reversed, will destabilize land tenure and jurisdiction on

reservations throughout the Circuit and lead to conflicts

of law elsewhere.

_ Yankton I is the seventh case in which the Supreme

Court has ruled on whether the policy of allotment and

the opening of an Indian reservation to settlement by

non-Indians diminished or disestablished a reservation.

Hagen v. Utah, 114 S.Ct. 958 (1994); Solem v. Bartlett, 465

U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977); DeCoteau v. District County Court, 420 U.S. 425

(1975); Mattz v. Arnett, 412 U.S. 481 (1973); Seymour v.

Superintendent, 368 U.S. 351 (1962).8 In DeCoteau, the Sis-

seton/Wahpeton Tribe approved termination of its Reser-

vation. Because the Reservation no longer existed, the

allotments and fee patent lands were not part of the

Reservation. In the remaining cases, when termination

had not been approved by the Tribe, this Court recog-

nized that former allotments that were on the Reservation

remained part of the Reservation. Unlike DeCoteau, the

Yankton Sioux Reservation has not been disestablished.

As in all cases where the Reservation was not disestab-

lished, the allotments are part of the Reservation.

The Court has addressed the status of former allot-

ments in several other contexts, consistently holding that

allotted lands remain part of the Reservation, notwith-

standing the issuance of any patent. Montana v. U.S., 450

U.S. 544 (1981) (“To be sure, Indian tribes retain inherent

sovereign power to exercise some forms of civil jurisdic-

tion over non-Indians on their reservations, even on non-

Indian fee lands. A tribe may regulate, through taxation,

licensing, or other means, the activities of nonmem-

bers.”); Moe v. Confederated Salish and Kootenai Tribes of the

Flathead Reservation, 425 U.S. 463 (1976) (Indians living on

former allotments on reservation enjoy same immunity

from state tax as Indians living on trust land); U.S. v. John,

437 U.S. 634 (1978); U.S. v. Nice, 241 U.S. 591 (1916) (“The

act of 1889 [applying the General Allotment Act to the ~

8 The importance of diminishment and disestablishment

cases is demonstrated by the fact that the Court has heard seven

of these cases. The Tribe has only found one disestablishment or

diminishment case where the Court denied certiorari. Duchesne

Country v. Ute Tribe of Uintah, Ouray Reservation, 522 U.S. 1107

(1998) (Petition for writ of certiorari brought by County.).

Rosebud Sioux Reservation] recognized the existence of

the tribe, as such, and plainly disclosed that the tribal

relation, although ultimately to be dissolved, was not to

be disestablished by the making or taking of allotments.”

The federal government therefore retained jurisdiction

over allotments.); United States v. Pelican, 232 U.S. 442

(1914) (Federal Court has jurisdiction over allotments.)

Again all of these cases are contrary to the Circuit Court

decision in this matter.

The consistent holdings of the Supreme Court are

based upon the intent of the General Allotment Act of

1887 and the subsequent legislation designed to carry out

that Act. In accordance with congressional intent of the

above legislation, and acknowledgment of the federal

government’s continuing trust relationship with Indian

Tribes, this Court has held:

The first governing principle is that only Con-

gress can divest a reservation of its land and

diminish its boundaries. Once a block of land is

set aside for an Indian Reservation and no mat-

ter what happens to the title of individual plots

within the area, the entire block retains its reser-

vation status until Congress explicitly indicates

otherwise.

Solem v. Bartlett, 465 U.S. 463, 470 (1984); see also South i

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

United States v. Celestine, 215 U.S. 278 (1909); Hagen v.

Utah, 510 U.S. 399 (1994). Congress’ intent to diminish a

reservation must be “clear and plain.” United States v.

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

Applying these principles, this Court has consistently

interpreted the intent of Congress expressed in the Gen-

eral Allotment Act, and in subsequent acts like the 1894

Act at issue in the present case, to be:

.. . to continue the reservation system and the

trust status of Indian lands, but to allot tracts to

individual Indians for agriculture and grazing.

When all the lands had been allotted and the

trust expired, the reservation could be abol-

ished. Unallotted lands were made available to

non-Indians with the purpose, in part, of pro-

moting interaction between the races and of

encouraging Indians to adopt white ways. See

§ 6 of the General Allotment Act, 24 Stat. 390;

United States Department of the Interior, Fed-

eral Indian Law 115 - 117, 127 — 129, 776 — 777

(1958). (Emphasis added.)

Mattz v. Arnett, 412 U.S. 481, 496 (1973).

In Mattz, the issue was whether the Klamath River

Reservation had been disestablished. That decision

turned on the interpretation of an 1892 Act of Congress

designed to carry out the General Allotment Act. The

Supreme Court held the 1892 Act had to be interpreted

“from the overview of the earlier General Allotment Act

of 1887, 24 Stat. 388.”

Like Mattz, the 1894 Act at issue was adopted to

carry out the General Allotment Act and, as in Mattz, the

1894 Act was to be interpreted in light of the purpose

behind the General Allotment Act. The Supreme Court

has properly interpreted the General Allotment Act con-

sistent with the continuing federal trust responsibilities

that form the basis of the federal relationship with Tribes

and Indians. It should insist that the Eighth Circuit follow

this Court’s rulings.

The Court below did not interpret the 1894 Act con-

sistent with the purposes and policies of the General

Allotment Act. The 1894 Congress’ intent was based upon

allotment and patent laws as they existed in 1894. Stat-

utes related to patenting of allotments were subsequently

changed by 34 Stat. § 325, 326 (codified at 25 U.S.C. § 391)

(President is given discretion to extend the trust period of

any allottee) and by the Burke Act of 1906 (codified at 25

U.S.C. § 349) (Secretary of Interior is given authority to

issue fee patents before the expiration of the trust

period). Many tribal allotments passed under the Burke

Act and other evolving federal policies, not under the law

as it existed in 1894. 14 F. Supp. 2d 1135, 1151 (D.S.D.

1998).

Inexplicably, the Circuit Court interprets the 1894

Congress’ intent to be that tribal land would pass to non-

Indians under subsequent, substantial, unanticipated

changes to fee patent law. For example, in 1894, Congress

knew that one of the major protections of Indian allot-

ments was the twenty-five year trust period. That protec-

tion was eliminated by the subsequent changes to federal

law under the Burke Act. In that Act, Congress gave the

Secretary of the Interior discretion to issue fee patents

prior to expiration of the twenty-five year trust period

which existed in 1894. The Secretary used that discretion

to issue patents to Yankton Sioux members even though

the Secretary knew that most Yankton Sioux (and most

other Indians) fell victim to tax sale foreclosures and land

speculators. Felix S. Cohen’s Handbook of Federal Indian Law

136-138 (1982); Janet A. McDonnell, The Dispossession of

the American Indian, 1887-1934, 93-102 (1991).

In 1894 Congress knew that Indians were not pre-

pared for non-Indian land tenure laws, and intended to

protect the Indians from loss of the land. The history of

the Burke Act demonstrates that the 1894 Congress was

correct. The Burke Act was obviously a major change in

policy from that intended by the 1894 Congress. Contrary

to the Circuit Court decision, the 1894 Congress did not

intend the wholesale loss of tribal allotments through the

policies later established by the Burke Act.

While the 1894 Congress’ long-term goal may have

been to eventually disestablish all reservations, the Gen-

eral Allotment Act was only one step toward that goal.

Solem v. Bartlett, 465 U.S. 463, 468 (1984). The Supreme

Court has consistently held that the step toward termina-

tion made by the General Allotment Act was not suffi-

cient to remove allotments from existing reservations,

notwithstanding the subsequent issuance of fee patents

or conveyance to non-Indians. To remove allotments from

Reservations would have required further steps by Con-

gress, and Congress took no additional steps with regard

to Yankton Sioux allotments.

This Court should grant the writ of certiorari in this

matter to review the Circuit Court decision which over-

rules this well-established line of Supreme Court cases.

B. The Circuit Court decision directly conflicts

with 18 U.S.C. § 1151(a).

18 U.S.C. § 1151(a) states:

Except as otherwise provided in §§ 1154 and

1156 of this title, the term “Indian Country,” as

used in this chapter, means (a) all land within

the limits of any Indian reservation under the

jurisdiction of the United States Government,

notwithstanding the issuance of any patent, and,

including rights-of-way running through the

reservation,. .. .

The Supreme Court has noted that 18 U.S.C. § 1151

adopted and codified Supreme Court holdings which

defined Indian Country. U.S. v. John, 437 U.S. 634, 648

(1978).? Since 18 U.S.C. § 1151’s enactment in 1948, the

Supreme Court has repeatedly cited the statute as the

correct and definitive definition of Indian Country. See,

e.g., Solem, 465 U.S. 463; U.S. v. John, 437 U.S. 634; DeCot-

eau, 420 U.S. 425; Kennerly v. District Court, 400 U.S. 423

(1971). In an unambiguous holding, this Court stated that

the question of whether former allotments continued to

be Reservation was:

Squarely put to rest by congressional enactment

of the currently prevailing definition of Indian

Country in § 1151 to include “all land within the

9 Although 18 U.S.C. § 1151 defines “Indian Country” only

for purposes of criminal jurisdiction, the Court applies that

definition in both criminal and civil cases. DeCoteau v. District

County Court, 420 U.S., at 427, n.2; California v. Cabazon Band of

Mission Indians, 480 U.S. 202, at n.5 (1987).

limits of any Indian reservation under the juris-

diction of the United States government, not-

withstanding the issuance of any patent... .

Seymour v. Superintendent, 368 U.S. at 357-58.

The Eighth Circuit decision is unquestionably con-

trary to the statute. The Circuit Court held:

For these reasons, we hold that the Yankton

Sioux Reservation has not been disestablished,

but that it has been further diminished by the

loss of those lands originally allotted to tribal

members which have passed out of Indian

hands. These lands are not part of the Yankton

Sioux Reservation and are no longer Indian

country within the meaning of 18 U.S.C. § 1151.

188 F.3d at 1030.

In its petition for rehearing by the Eighth Circuit, the

State noted this same error by the Circuit Court panel.

The State wrote:

were the allotments on the former Yankton res-

-ervation deemed reservation under 18 U.S.C.

§ 1151(a) they would not lose Indian Country

status when the Indian title was extinguished.

This, however, is flatly inconsistent with the

body of the Panel Opinion which held that the

reservation was diminished by the loss of those

lands originally allotted to tribal members

which have passed out of Indian hands.

State Petition for En Banc Review, at 13.

As the Court clearly stated in Seymour, prior to the

Eighth Circuit decision, the statute was the settled, relied

upon, and clear definition of Indian Country throughout

the United States. The Supreme Court should grant the

writ of certiorari to review the Eighth Circuit change to

this well-settled law.

II. CORRECTION OF THE CIRCUIT COURT ERROR

IS OF EXCEPTIONAL IMPORTANCE TO INDIAN

TRIBES AND PEOPLE LIVING ON FORMER

ALLOTMENTS THROUGHOUT THE UNITED

STATES.

A. The Circuit decision will lead to sizable dives-

titure of land from Indian Tribes within the 48

contiguous states.

Adopting a view consistently rejected by the

Supreme Court, the Circuit Court found that Congress

intended lands which passed under to non-Indians under

the General Allotment Act would cease to be Reservation

land. Unless reversed, the Circuit Court view will disrupt

tribal relations with the United States and cause great

destruction to the very fabric of tribal government and

institutions. Land on 118 reservations passed to non-

Indian ownership under the General Allotment Act. Rich-

ard B. Morris, Encyclopedia of American History 644 (6th

ed. 1982). The amount of land allotted to Indians and

subsequently conveyed to non-Indians was 27,000,000

acres. Felix S. Cohen’s Handbook of Federal Indian Law 138

(1982).10

The novel and far-reaching Circuit Court decision

should only have been reached upon a careful consider-

ation and analysis of Supreme Court precedents. Instead

10 27,000,000 acres is approximately the size of the state of

Ohio. There are 16 states which are less than 27,000,000 acres.

the Circuit Court made its sweeping change to the law in

a cursory manner, in a single sentence of the Court's

twenty page opinion, where the Court states:

When viewed in its full historical context, how-

ever, it is clear that the parties did not intend for

the tribe to retain control over allotted lands

which passed out of trust status and into non-

Indian hands. (Footnotes and citations not omit-

ted.)

188 F.3d at 1030.

By threatening to disturb the status of the law that

for years has maintained a semblance of jurisdictional

stability in Indian Country, the Circuit Court ruling in

this case will substantially harm the Yankton Sioux Tribe

and other Indian Tribes and reservations throughout the

Nation. Both Indian tribes and non-Indian communities

that previously relied upon 18 U.S.C. § 1151(a) and the

long line of United States Supreme Court cases in this

area of the law will be thrown into jurisdictional limbo

and chaos.

B. Removal of allotments from Reservations will

upset the finality of innumerable federal and

tribal court decisions.

The jurisdictional uncertainty created by the Circuit

Court decision affects far more than just land: it affects

the validity of decisions of tribal and federal courts.

Tribal Courts exercise jurisdiction over “Indian Country”

as that term is defined by federal law. The Circuit Court’s

radical redefinition of “Indian Country” will void innu-

merable tribal court decisions. There are over 250 tribal

jedi banat

courts in the United States. Joseph A. Myers & Elbridge

Coochise, Development of Tribal Courts: Past, Present, and

Future, 79 Judicature 147, 149, Nov.-Dec. 1995. Caseload

in these courts varies, depending on the size and popula-

tion of the reservation. For example, the Navajo Court

handles approximately 25,000 cases per year, while the

Gila River Reservation handles 3,200 cases per year. J.

Clifford Wallace, A New Era of Federal-Tribal Court Cooper-

ation, 79 Judicature 150, 152, Nov.-Dec. 1995.

Based upon the heretofore settled law, these tribal

courts have long exercised jurisdiction over Indians on

former allotments. Tribal Courts hear criminal trials, ter-

mination of parental rights, adoptions, child custody and

support, dissolution of marriage, probate, tort cases,

employment appeals, and general civil cases. Newton,

Tribal Court Praxis: One Year in the Life of Twenty Indian

Tribal Courts, 22 American Indian Law Review, 285, 1998.

Tribal court orders are frequently afforded recognition by

other courts under principles of comity and federal law.

The Circuit Court casts intolerable uncertainty over

tribal and federal court decisions that arose on former

allotments. For example, the decision is precedent to void

long-settled tribal court adoptions. The decision will cre-

ate disorder related to tribal court orders of dissolution of

marriages, and acts in reliance thereon. After a dissolu-

tion, a party is free to remarry, and the dissolution affects

the interpretation of wills and alters intestate succession.

People, especially tribal people, rely upon these and other

decisions of tribal courts. The Yankton Sioux Tribe asks

the Court to review the Eighth Circuit Court decision and

to restore certainty to the status of former allotments and

certainty to the jurisdiction of tribal courts.

Ill. THE EIGHT CIRCUIT OPINION IS IN DIRECT

CONFLICT WITH A DECISION OF THE TENTH

CIRCUIT COURT OF APPEALS.

The opinion in the instant case is in direct conflict

with the Tenth Circuit Court of Appeals on an important

issue of law.!! See Ute Indian Tribe of the Unitah and Ouray

Reservation v. State of Utah, 114 F.3d 1513 (10th Cir. 1997).

In Ute, as in the present case, the Circuit Court was

required to apply Supreme Court precedent to determine

the status of former allotments, where the Reservation

had bec. diminished by the sale of “surplus” property

scattered throughout the Reservation. Contrary to the

Eighth Circuit decision in the present case, the Tenth

Circuit held that the former allotments remain part of the

Reservation.

In the 1980's, the Ute Indian Tribe brought an action

for injunction and declaratory judgment against the State

of Utah, joining also Duchesne Country, Uintah County

and Roosevelt City as defendants. The Federal District

Court for Utah held that the Uncompahgre Reservation

had been disestablished, but that the Uintah and Ouray

Reservation had not been disestablished, except as to

11 For some areas of law, the Court might be inclined to

wait until more of the thirteen Circuit Courts reach an issue.

Because the captioned matter relates to diminishment of

reservations, which are concentrated in the western United

States, the Eighth and Tenth Circuits are two of the three

Circuits where the issue is likely to arise. A disagreement

between these two circuits on an issue of this importance to

Indian law must be resolved.

lands that had been specifically removed from the Reser-

vation for other purposes. Ute Indian Tribe v. State of Utah,

et al., 521 F. Supp. 1072 (D. Utah 1981), aff'd. en banc, 773

F.2d 1087 (10th Cir. 1985), cert. denied, 479 U.S. 994 (1986).

After extended litigation, a separate case dealing with the

status of the Ute Reservation ended up in the Supreme

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

In Hagen, Justice O’Connor, writing for the Court,

ruled that the Uintah Valley Reservation was diminished,

but not disestablished or terminated. Following the Hagen

decision, the State of Utah and other local parties began

pushing their case back through the federal courts, ulti-

mately asking the Tenth Circuit Court to withdraw com-

pletely its earlier mandate which held, as did this Court

in Yankton I, that the Reservation was neither diminished

nor disestablished. In response to that request, and in

view of the Hagen decision the Tenth Circuit, held:

To the extent that the boundary determinations

made in the Ute Indian Tribe III (in which the

Tenth Circuit ruled en banc that the Reservation

boundaries were neither diminished nor dises-

tablished) do not directly conflict with Hagen,

they remain in effect.

Ute Indian Tribe of the Unitah and Ouray Reservation v. State

of Utah, 114 F.3d 1513, 1528 (10th Cir. 1997).

Moreover, the diminishment was only with

respect to those lands which had been restored

to the public domain under the 1902-1905 legis-

lation. (Citations omitted) . . . In sum Hagen

does not conflict with our holding in Ute Indian

Tribe III that these categories of non-trust lands

remain within Indian Country under section

1151(a).

Ute Indian Tribe, at 1530.

If the Yankton Sioux Reservation were located within

the Tenth Circuit, it would consist of 260,000 acres,

instead of the 36,000 acre Reservation as held by the

Eighth Circuit Court of Appeals. The Tribe respectfully

requests that the Court resolve this conflict between Cir-

cuit Court decisions.

CONCLUSION

The Yankton Sioux Tribe respectfully requests that

the Court grant the writ of certiorari. The sweeping,

unprecedented change in federal Indian law made by the

Eighth Circuit should command the full attention of the

Court. This Court should intervene to prevent the fore-

seeable legal chaos which will result from the Circuit

Court’s unprecedented decision.

Respectfully submitted,