Opposition Brief — South Dakota v. Yankton Sioux Tribe

Supreme Court, U.S.

FILED

4H) ® MAY 0 8 7900

Nos. 99-1490 and 99-16

In the Supreme Court of the Unite States —

STATE OF SOUTH DAKOTA, ET AL., PETITIONERS

Vv.

YANKTON SIOUX TRIBE, ET AL.

YANKTON SIOUX TRIBE, ET AL., PETITIONERS

Vv.

MATT GAFFEY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

LoIs J. SCHIFFER

Assistant Attorney General

JAMES C. KILBOURNE

Attorney \

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Yankton Sioux Reservation, which this

Court held in South Dakota v. Yankton Sioux Tribe, 522

U.S. 329 (1998), had been diminished to the extent of those

lands that had been ceded to the United States for sale to

non-Indian settlers, has been wholly disestablished.

2. Whether the Yankton Sioux Reservation has been

further diminished to the extent of those allotted lands that

have passed out of Indian ownership.

(I)

TABLE OF CONTENTS

Jurisdiction

Statement

Argument .

A. The court of appeals’ holding that the Yankton

Sioux Reservation has not been disestablished

does not merit this Court’s review 9

B. The court of appeals’ holding that the Yankton

Sioux Reservation has been further diminished

does not merit this Court’s review 21

Conclusion , , 27

age

Opinions below 1

2

2

8

TABLE OF AUTHORITIES

Cases:

Alaska v. Native Village of Venetie Tribal Gov't, 522

U.S. 520 (1998) 13, 14

Bruguier v. Class, 599 N.W.2d 364 (S.D. 1999) ................ 8, 13

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

(1975) ..... 13, 14, 18, 19

Hagen v. Utah, 510 U.S. 399 (1994) .......... 3, 5, 9, 10, 17, 24, 25

Mattz v. Arnett, 412 U.S. 481 (1973) 22, 23

McClanahan v. Arizona State Tax Comm’n, 411 U.S.

164 (1973) 6 14

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) 17

Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463 (1976) 24

Montana v. United States, 450 U.S. 544 (1981) ccccccscessoc... 24

Oklahoma Tax Comm’n v. Citizen Band Pot-

awatomi Indian Tribe, 498 U.S. 505 (1991) cece... 14, 16, 20

Oklahoma Tax Comm’n v. Sac & Fox Nation,

508 U.S. 114 (1993) 14, 20

(IIT)

IV

Cases—Continued: Page

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

(1977) 5, 22

Solem v. Bartlett, 465 U.S. 463 (1984) 3, 5, 6, 9,

10, 17, 23, 24, 27

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

329 (1998) 3, 5, 9, 10, 12, 17

United States v. Celestine, 215 U.S. 278 (1909) ...........0000 24

United States v. Dion, 476 U.S. 734 (1986) ..........ss00000 5, 9, 22

United States v. John, 487 U.S. 634 (1978) 20

Ute Indian Tribe v. Utah:

114 F.3d 1513 (10th Cir. 1997), cert. denied, 522

U.S. 1107 (1998) ............. 5, 25, 26

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

SE CI ssetidinciiictcoidasiccinsaininn 25

Treaty, statutes and rule:

Treaty of Apr. 19, 1858, 11 Stat. 743 ... 2

Act of Feb. 28, 1891, ch. 383, 26 Stat. 794 2

Act of Mar. 3, 1891, ch. 543, 26 Stat. 989 17

Act of July 13, 1892, ch. 164, 27 Stat. 137 ....... 2

Act of Aug. 15, 1894, ch. 290, § 12, 28 Stat. 314... sesesees 2

Art, 1, BB Geet. B16 ccccccccsassessocsssccessvses 6, 10

Bh TE I esicssisticieneesaeitanitsccten 6, 10

igh, Fs MAE sccatesnccssnnseninbsisiensiabitinintstiniainciloagi 6, 11, 18, 22

Pah, VET ee TO xcentnssicnsicnitinenniinsit 6, 10, 17

Si, Tie TO TERT ‘sntitinvinrccioniicslnitinnininion 11, 18

Ph, Fees Ce es GH sntitniabneicineinitaanntiinaiisn 6, 11, 17-18

General Allotment Act, ch. 119, 24 Stat. 388 oes 2

OTE, TIE caincetininnensitsensoinicesterninintes 13, 14

a, Be ercinanietiseesacncnintinnensndanieaninnioninnnd 13, 16, 20, 24, 25

BPs Se nittinicicnnicnntnniaigeeninemaiiiiganntiin 13, 15

SEE es: I scseicisnithseciheiinsinssisscacaiaeinttiataeeiaiieitileainiaiin 13, 15, 16

OE TET BIE hacia sstcdsvinernstvisinincstansnerstertepiaieneiiceiiaalininisianins 14

DE ies BI -siilnicicsateiuctatcansistintntalctiincsintanni incite biilaialbis 14

OF BI accescsdccdecnssssivsvisiietasicieiieihascianeipinaiiniaaiaciniiitiien 19

2B U.S.C, 2106 ...ccccrcccsoseccererscsscaseccseesecccsscsoscacssenssccessecessecncsensess 16

V

Rule—Continued: : Page

Sup. Ct. R.:

IE OI sniticieseonecsindiininiuslineaiaings , 9, 23

RD TEI sinnsiiicsicsnicitngiatibacinsetinsisnaiiatinabunsadin 16

Miscellaneous:

SAE, TG, GE CIID seciessssnvescccissinnissitcitiapeiiraatrsenaeaintns 12

S. Exec. Doc. No. 27, 538d Cong., 2d Sess. (1894) ....cccceccessee. 12

Jn the Supreme Court of the Anited States

No. 99-1490

STATE OF SOUTH DAKOTA, ET AL., PETITIONERS

Vv.

YANKTON SIOUX TRIBE, ET AL.

No. 99-1683

YANKTON SIOUX TRIBE, ET AL., PETITIONERS

Vv.

MATT GAFFEY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (State Pet. App. 1-49)

is reported at 188 F.3d 1010.’ The opinion of the district

court (State Pet. App. 50-113) is reported at 14 F. Supp. 2d

1135.

' References to “State Pet. App.” are to the Appendix in No. 99-1490

filed by the State of South Dakota.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

August 31, 1999. The petitions for rehearing were denied on

December 8, 1999 (State Pet. App. 114). The State’s petition

for a writ of certiorari was filed on March 8, 2000. The

Tribe’s petition for a writ of certiorari was filed on March 6,

2000. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. Inthe Treaty of April 19, 1858, 11 Stat. 743 (State Pet.

App. 115-126), the Yankton Sioux Tribe ceded to the United

States its aboriginal lands, comprising about 13 million acres,

except for a 430,000-acre Reservation in what is now Charles

Mix County in southeastern South Dakota. State Pet. App.

8, 54-55. Subsequently, the United States made allotments

of reservation lands to the individual members of the Yank-

ton Sioux Tribe, pursuant to the General Ailotment Act, ch.

119, 24 Stat. 388, and the Act of February 28, 1891, ch. 383,

26 Stat. 794. Ultimately, more than 262,000 acres were

allotted. State Pet. App. 8 & n.3, 64.

In 1892, Congress directed the Secretary of the Interior to

negotiate with the Yankton Sioux for the sale of surplus

reservation lands that were not needed for allotments. Act

of July 13, 1892, ch. 164, 27 Stat. 137. In December 1892, the

tribal leaders signed an agreement (the 1892 Agreement),

later adopted by a majority of the Tribe, in which they

agreed to “cede, sell, relinquish, and convey” all of their

interest in the unallotted lands within the Reservation for

$600,000. State Pet. App. 128-129. The unallotted ceded

lands totaled approximately 168,000 acres. Jd. at 64. In

1894, Congress “accepted, ratified, and confirmed” the 1892

Agreement. Act of Aug. 15, 1894, ch. 290, § 12, 28 Stat. 319

(1894 Act) (State Pet. App. 127-140).

3

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

(1998), this Court held that the 1894 Act diminished the

Yankton Sioux Reservation by severing the unallotted ceded

lands from the Reservation. In reaching that result, the

Court principally relied upon the “‘cession’ and ‘sum cer-

tain’” language in the 1894 Act by which the Tribe ceded all

of its interest in the unallotted lands for a sum certain. Id. at

344. The Court had previously held that such language

creates an “almost insurmountable” presumption of dimin-

ishment. Ibid.; see Hagen v. Utah, 510 U.S. 399, 411 (1994);

Solem v. Bartlett, 465 U.S. 463, 470 (1984).2

The parcel of land at issue in Yankton Sioux Tribe was

unallotted land ceded to the United States by the 1894

Act. The Court therefore found it unnecessary to decide

whether the Yankton Sioux Reservation had been wholly

disestablished. The Court explained that “(t]he conflicting

understandings about the status of the reservation, together

with the fact that the Tribe continues to own land in

common, caution us * * * to limit our holding to the narrow

question presented: whether unallotted, ceded lands were

severed from the reservation.” 522 U.S. at 358.

3. On remand, the district court consolidated the

original action, Yankton Sioux Tribe v. Southern Missouri

Waste Management District (No. 94-4217), with a new

action, Yankton Sioux Tribe v. Gaffey (No. 98-4042). In the

new action, the Tribe sought declaratory and injunctive

2 The Court concluded that “the contemporary historical context,”

while supporting its conclusion that Congress intended to diminish the

Reservation, was “not so compelling that, standing alone, it would indicate

diminishment.” 522 U.S. at 351. The Court further concluded that the

subsequent conduct of the United States, the State, and the Tribe “reveals

no consistent, or even dominant, approach to the territory in question,”

- and therefore “carries but little force in light of the strong textual and

contemporaneous evidence of diminishment.” Jd. at 356 (internal quota-

tion marks omitted).

relief precluding the State and Charles Mix County from

exercising criminal jurisdiction over tribal members on (i)

any lands that had been allotted to members of the Tribe,

whether or not those lands are now held in trust by the

United States for the Tribe or individual Indians, and (ii)

those ceded lands that had been reserved from sale to non-

Indians under the 1894 Act for Indian agency, school, and

other purposes, but that are now held in trust by the United

States for the Tribe. The United States, which had pre-

viously participated in No. 94-4217 as an amicus curiae,

intervened in the consolidated action. State Pet. App. 6-7.

The district court, after taking additional evidence, held

that Congress had not disestablished the Yankton Sioux

Reservation. State Pet. App. 53. Instead, the court con-

cluded that the 1894 Act had “modified or reconceptualized”

the Reservation to consist of all of the lands within its

original exterior boundaries that had not been ceded to the

United States for sale to non-Indian settlers; accordingly,

the Reservation continued to consist of “all of the reser-

vation lands that were allotted pursuant to the allotment

acts, as well as the lands reserved from sale for agency,

school, and other tribal purposes.” Jbid. The court based

that conclusion on the text of the 1894 Act and the 1892

Agreement, the record of the negotiations between the

United States Commissioners and the Yankton Sioux, the

materials submitted to Congress in connection with passage

of the 1894 Act, and the subsequent treatment of the allotted

lands by the United States, the State, and the Tribe. Jd. at

67-109.

As a consequence of the district court’s decision, the

original Reservation, which comprised some 430,495 acres,

would be reduced to approximately 262,000 acres. State Pet.

App. 64. The district court recognized that its decision

would create “a checkerboard pattern of jurisdiction,” be-

cause the Indian allotments were spread throughout the

5

original Reservation. Jd. at 109. The court noted that a

similar jurisdictional pattern had been approved in Ute

Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), cert.

denied, 522 U.S. 1107 (1998).

4. The court of appeals affirmed in part and reversed in

part. State Pet. App. 1-49. The court agreed with the

district court that the Yankton Sioux Reservation had not

been disestablished. But the court held that the Reservation

had been further diminished to exclude not only the un-

allotted ceded lands that were the subject of this Court’s

decision in Yankton Sioux Tribe but also those allotted lands

that passed out of trust status and are now owned by non-

Indians.

a. At the outset, the court of appeals recited the well-

settled principles governing the analysis of diminishment

and disestablishment questions. First, the court noted

that “[clongressional intent is the touchstone” for deter-

mining whether a reservation has been diminished or dis-

established, and thus that land set aside for a reservation

retains that status until Congress indicates otherwise. State

Pet. App. 26 (citing Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 586 (1977), and Solem, 465 U.S. at 470). Second, the

court noted that Congress’s “[iJntent to diminish or dis-

establish a reservation must be ‘clear and plain’” from the

text of the statute, the legislative history, or the surrounding

circumstances. I[bid. (quoting United States v. Dion, 476

U.S. 734, 738 (1986)). Third, the court noted that “neither

diminishment nor disestablishment will be found lightly,”

and that any ambiguities in statutes or agreements bearing

on the question are resolved in favor of the Indians. Jd. at 30

(citing Yankton Sioux Tribe, 522 U.S. at 344; Hagen, 510

U.S. at 411). Finally, the court noted that each statute that

is claimed to disestablish or diminish a reservation “must be

analyzed individually, its effect depending on the language

6

used and the circumstances of its passage.” Jd. at 29 (citing

Solem, 465 U.S. at 469).

b. The court of appeals held that no sufficiently clear ex-

pression of Congress’s intent to disestablish the Yankton

Sioux Reservation could be found in the text of the 1894 Act

and the incorporated 1892 Agreement, in the record of the

- negotiations between the United States and the Yankton

Sioux, or in the other materials before Congress at the time

of the adoption of the 1894 Act. State Pet. App. 30-41,

The court of appeals observed that Articles I and II of the

1894 Act—the provisions principally relied on by this Court

in Yankton Sioux Tribe—“refer{] explicitly only to the ceded

lands.” State Pet. App. 30. The court determined that three

other articles of the 1894 Act contemplated some degree of

continuing tribal governance over the allotted lands. The

court perceived that Article V, which provided for a $50,000

fund that could be used, among other things, for schools,

courts, and “other local institutions for the benefit of said

tribe,” “clearly foresaw continued tribal activity in providing

for the needs of the Yankton Sioux.” Jd. at 39. The court

viewed Article XVII, which prohibited the sale of liquor

“upen any of the lands by this agreement ceded and sold to

the United States” and “upon any other lands within or com-

prising the reservations of the Yankton Sioux or Dakota

Indians,” as “acknowledg[ing] the continued existence of two

distinct categories of land to which different laws might

apply.” Jd. at 39-40. And the court read Article VIII, which

reserved from sale to settlers those ceded lands “as may now

be occupied by the United States for agency, schools, and

other purposes,” as indicating that “some lands were ex-

pected to remain outside of primary state jurisdiction.” Jd.

at 40.

The court of appeals likewise found no clear indication of

an intent to diminish the Yankton Sioux Reservation in the

record of the negotiations between the United States and

the Tribe. State Pet. App. 32-36. The court observed that

the United States Commissioners who negotiated the 1892

Agreement had “repeatedly emphasized” to the Tribe that

“their primary objective was the purchase of the unallotted

lands.” Jd. at 33. The court noted that the Commissioners

had also “indicated that the tribal leadership would retain

some governing powers”; for example, the Commissioners

had suggested that the Tribe, after selling its surplus lands,

might be able to have the Reservation organized as a sepa-

rate county, in which the Tribe could govern its own

members so long as they obeyed the laws of the State. Jd. at

34. The court viewed such statements as “suggest[ing] the

parties did not intend to disestablish the reservation.” Ibid.

The court further observed that the Commissioners’ subse-

quent report to Congress did not equate the Tribe’s sale of

the surplus lands with the Tribe’s immediate loss of

sovereignty over the unceded lands. Jd. at 36-37. The report

instead reflected what the court described as the parties’

understanding that “only a portion of the reservation was

being separated at that time.” Jd. at 37.

c. The court of appeals nonetheless concluded that Con-

gress intended to diminish the Reservation not only by the

land ceded in 1894, but also by any lands that would later

pass into the hands of non-Indian settlers. State Pet. App.

43. Accordingly, the court “h[e]ld 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.” Jd. at 47. The court did not point to any express

statement in the 1894 Act, the 1892 Agreement, the negotia-

tion records, or the legislative history to support that con-

clusion. Instead, the court reasoned that the 1894 Act, when

“read in its full historical context,” contemplated that tribal

members would eventually obtain fee title to their allotted

lands, gain the ability to sell those lands to non-Indians, and

become subject to the civil and criminal laws of the State.

Id. at 48. The court also observed that “nothing in [the] text

[of the 1894 Act] or the circumstances surrounding its

passage suggests that any party anticipated that the Tribe

would exercise jurisdiction over non[-]Indians who pur-

chased land after it lost its trust status.” Jd. at 42. The

court found additional support for its conclusion in the

absence of any evidence that the United States or the Tribe

had asserted jurisdiction until the 1990s over formerly

allotted lands that were no longer held in trust. Jd. at 45-46.

The court of appeals did not determine precisely which

lands, after excluding the ceded lands and the allotted lands

owned by non-Indians, remain within the surviving Yankton

Sioux Reservation. The court concluded only that “the land

reserved to the federal government in the 1894 Act and then

returned to the Tribe” retains its reservation status. State

Pet. App. 48. The court remanded the case to the district

court for a complete determination of which other lands

remain a part of the Reservation. [bid.

ARGUMENT

The court of appeals erred in holding that the Yankton

Sioux Reservation has been progressively diminished as

formerly allotted lands have passed into non-Indian hands.

Nevertheless, the court’s decision does not warrant this

Court’s review, at least not at this interlocutory stage of the

case. The court purported simpiy to apply, to the particular

circumstances of this case, the rules of law previously an-

nounced by this Court in earlier disestablishment and dimin-

ishment cases. The court’s decision does not squarely

conflict with any decision of this Court or any other court of

appeals. Nor, contrary to the State’s suggestion, does the

decision conflict with the South Dakota Supreme Court’s

decision in Bruguier v. Class, 599 N.W.2d 364 (1999).

Indeed, the actual holding in Bruguier—that allotted lands

9

within the original Yankton Sioux Reservation that are now

owned by non-Indians are not Indian country under 18

U.S.C. 1151—is fully consistent with the actual holding in

this case. Neither the Eighth Circuit nor the South Dakota

Supreme Court reached any definitive conclusion as to pre-

cisely which other lands within the original Reservation

retain their status as Indian country. No such lands were at

issue in Bruguier, and, here, the court of appeals remanded

the case for further proceedings on that question. If a

conflict should develop between the Eighth Circuit and the

South Dakota Supreme Court concerning the Indian country

status of particular lands within the original Reservation, or

if the Eighth Circuit’s decision concerning the progressive

diminishment of this particular Reservation should prove to

have consequences for other Reservations, there will be time

enough for this Court to grant review at a later date.

A. The Court Of Appeals’ Holding That The Yankton

Sioux Reservation Has Not Been Disestablished Does

Not Merit This Court’s Review

1. In concluding that the Yankton Sioux Reservation has

not been wholly disestablished, the court of appeals applied

the standards repeatedly articulated by this Court, see, e.g.,

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343-344

(1998), to the particular facts and circumstances of this case.

Such a fact-specific application of settled legal standards

does not ordinarily merit this Court’s review. See Sup. Ct.

R. 10.

As the court of appeals recognized (State Pet. App. 26, 29-

30), Congress’s intent to diminish or disestablish a reserva-

tion must be “clear and plain,” as reflected in the text of the

surplus land Act, the legislative history, and the surrounding

circumstances. Yankton Sioux Tribe, 522 U.S. at 343-344

(quoting United States v. Dion, 476 U.S. 734, 738-739 (1986)):

Hagen v. Utah, 510 U.S. 399, 411-412 (1994); Solem v.

10

Bartlett, 465 U.S. 469, 470-471 (1984).* There is no expres-

sion of congressional intent, much less the “clear and plain”

expression required by this Court, to disestablish the Yank-

ton Sioux Reservation.

The primary purpose of the 1894 Act was to transfer

unallotted surplus lands from the Yankton Sioux Tribe to the

United States. That transfer was accomplished by Articles I

and II of the 1894 Act—the provisions that this Court

principally relied upon in Yankton Sioux Tribe—which

provided for the cession of the surplus lands and established

the amount of payment for those lands. See 522 U.S. at 344-

345. Those articles refer only to the unallotted surplus lands,

not to the lands that were to be allotted to tribal members.

No other provision of the 1894 Act offers any clear indica-

tion that Congress intended that the cession of the un-

allotted lands would result in the disestablishment of the

entire Reservation. Indeed, several provisions of the 1894

Act and the incorporated 1892 Agreement point to the

opposite conclusion.

Article VIII of the 1894 Act reserved from sale to non-

Indian settlers those lands ceded by the Tribe to the United

States “as may now be occupied by the United States

for agency, schools, and other purposes.” 28 Stat. 316

(State Pet. App. 132). This Court recognized in Yankton

Sioux Tribe that Article VIII “counsels against finding the

reservation terminated,” because Congress probably would

not have reserved lands for such purposes if it had not

anticipated a continuing Reservation. 522 U.S. at 350; accord

Solem, 465 U.S. at 474. The court of appeals similarly viewed

Article VIII as reflecting “Congress’ expectation that the

% The Court has also stated that the inquiry into disestablishment or

diminishment may, “to a lesser extent,” be informed by “the subsequent

treatment of the area in question and the pattern of settlement there.”

Yankton Sioux Tribe, 522 U.S. at 344 (quoting Hagen, 510 U:S. at 411).

11

federal government would continue to have a significant

presence in the area for the welfare of the Tribe,” so that

“some lands were expected to remain outside of primary

state jurisdiction.” State Pet. App. 40.

Article XVII of the 1894 Act prohibited the sale or offer-

ing of intoxicating liquors “upon any of the lands by this

agreement ceded and sold to the United States” and “upon

any other lands within or comprising the reservations of

the Yankton Sioux or Dakota Indians as described in the

[1858] treaty.” 28 Stat. 318 (State Pet. App. 136). As this

Court observed in Yankton Sioux Tribe, Article XVII “thus

signal[s] a jurisdictional distinction between reservation

and ceded land.” 522 U.S. at 350; see State Pet. App. 40

(observing that Article XVII “acknowledged the continued

existence of two distinct categories of land to which different

laws might apply”).

Article V of the 1894 Act provided a mechanism for fund-

ing, from interest due the Tribe on proceeds from the sale of

ceded lands, various post-cession tribal activities, such as the

care of “orphans, and aged, infirm, or other helpless persons

of the Yankton tribe,” schools and educational programs, and

“courts of justice and other-local institutions for the benefit

of said tribe.” 28 Stat. 315 (State Pet. App. 130). Article XI

provided an additional source of funding of those activities

from the sale of lands of tribal members who died intestate.

28 Stat. 317 (State Pet. App. 133-134). The court of appeals

recognized that those provisions, which “clearly foresaw

continued tribal activity in providing for the needs of the

Yankton Sioux,” militate against a determination that Con-

gress intended to disestablish the Reservation. State Pet.

App. 39.4

4 As the court of appeals noted (State Pet. App. 39), the fund re-

ferred to in Articles V and XI was never actually established.

i

12

The record of the negotiations of the 1892 Agreement

between the United States Commissioners and the Yankton

Sioux likewise provides no indication of an intent to dis-

establish the Reservation. The Commissioners repeatedly

informed the Tribe during the negotiations that they had one

primary purpose—to purchase the Tribe’s unallotted surplus

lands. State Pet. App. 33-34 (citing S. Exec. Doc. No. 27, 53d

Cong., 2d Sess. 48 (1874)). That purpose was consistent with

the continued existence of a Reservation consisting of the

allotted lands. The Commissioners also indicated that the

Tribe would retain some governing powers after the cession,

suggesting to the tribal members, for example, that “after

you sold your lands, you could have this reservation

organized as a separate county,” and thus “you could govern

your own people in your own way, so long as you obeyed the

laws of the State.” Jd. at 34 (quoting S. Exec. Doc. No. 27,

supra, at 48). The court of appeals observed that the Yank-

ton Sioux could have interpreted such statements to mean

that the cession would not alter the Tribe’s control over

lands retained by the Indians. The court viewed such

statements, which it characterized as “references to a con-

tinuing tribal government,” as suggesting that “the parties

did not intend to disestablish the reservation.” Ibid.

The negotiation records were submitted to Congress by

the Secretary of the Interior to support the ratification of

the 1892 Agreement. State Pet. App. 33. The congressional

debates on the ratification did not address the status of the

allotted lands within the Yankton Sioux Reservation. See,

e.g., 26 Cong. Rec. 6426 (1894) (statement of Rep. Pickler of

South Dakota) (“We simply provide in this bill how these

168,000 acres of land acquired from the Indians shall be

disposed of.”); ef. Yankton Sioux Tribe, 522 U.S. at 353

(observing that “(t]he legislative history itself adds little”

even with respect to the status of the ceded lands).

13

In sum, the court of appeals correctly concluded that no

clear indication of congressional intent to disestablish the

Yankton Sioux Reservation could be found in the text of the

1894 Act and the 1892 Agreement, in the legislative history,

or in the surrounding circumstances. State Pet. App. 41. No

reason exists for this Court to revisit that conclusion.

2. The State contends (Pet. 11-20) that the court of

appeals’ decision conflicts with the South Dakota Supreme

Court’s recent decision in Bruguier (State Pet. App. 141-

172), and with this Court’s decision in DeCoteau v. District

County Court, 420 U.S. 425 (1975). The State is mistaken.

a. Contrary to the State’s assertion of a conflict between

the decision below and the South Dakota Supreme Court’s

decision in Bruguier, the actual holdings of the two cases

are identical—i.e., that allotted lands within the exterior

boundaries of the original Yankton Sioux Reservation that

are now owned by non-Indians do not constitute “Indian

country” under 18 U.S.C. 1151, and consequently that the

State, not the United States and the Tribe, has primary jur-

isdiction over crimes committed on those lands.

Section 1151 identifies three categories of land that

qualify as Indian country: reservations (18 U.S.C. 1151(a)),

dependent Indian communities (18 U.S.C. 1151(b)), and allot-

ments that remain in trust or restricted status (18 U.S.C.

1151(c)). The question whether territorial jurisdiction rests

with the United States and the Tribe, on the one hand, or

the State, on the other, turns on whether the land in

question is Indian country, not on the particular category of

Indian country into which the land is classified. See, e.g.,

Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S.

5 As discussed below (pp. 21-27, infra), although the court of appeals

did err in concluding that the Reservation was further diminished to the

extent of allotted lands that have passed out of Indian hands, that aspect

of the court’s decision likewise does not merit review.

14

520, 526-527 & n.1 (1998). That is expressly so under 18

U.S.C. 1151-1153 with respect to criminal jurisdiction, the

principal subject of concern in this case and Bruguier. And

the definition of Indian country in 18 U.S.C. 1151 “generally

applies to questions of civil jurisdiction” as well. Native

Village of Venetie, 522 U.S. at 527; DeCoteau, 420 U.S. at 427

n.2.°

In Bruguier, the defendant was convicted of a state

criminal offense for committing a burglary in Pickstown,

South Dakota, which is within the exterior boundaries of

the original Yankton Sioux Reservation. He subsequently

sought habeas corpus relief, claiming that the offense occur-

red in Indian country, and thus that the State lacked juris-

diction over him. The parties stipulated that the offense

occurred on allotted land to which Indian title had been

extinguished. State Pet. App. 142-143. In denying habeas

relief, the South Dakota Supreme Court reasoned that the

1894 Act disestablished the Yankton Sioux Reservation. But

the court’s actual holding was limited to the narrower

issue presented in the case: whether the land on which the

offense was committed constituted Indian country, and

thus whether primary jurisdiction over the defendant’s

crime rested with the United States and the Tribe or,

alternatively, with the State. The court acknowledged the

limited scope of its holding, stating at the outset of its

opinion: “Here we must decide the status of allotted lands,

which have passed into non-Indian ownership.” Id. at 142.

6 For example, the same general principles of immunity from state

taxation apply on any land that constitutes Indian country, whether the

land is a formal reservation, see McClanahan v. Arizona State Tax

Comm’n, 411 U.S. 164 (1973); is held in trust for a Tribe but is not part of a

formally designated reservation, see Oklahoma Tax Comm’n v. Citizen

Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991); or is an allot-

ment still held in trust or restricted status, see Oklahoma Tax Comm’n v.

Sac & Fox Nation, 508 U.S. 114, 123 (1993).

15

The court then concluded that allotted lands that now are

owned by non-Indians do not constitute Indian country.

Ibid. :

The court of appeals in this case likewise held that

formerly allotted lands that now are owned by non-Indians

“are not part of the Yankton Sioux Reservation and are no

longer Indian country.” State Pet. App. 47. Accordingly,

under the holdings of both the South Dakota Supreme Court

and the Eighth Circuit, the State had primary jurisdiction

over the offense at issue in Bruguier and indeed over of-

fenses on all allotted lands that have passed out of trust

status and are now in non-Indian ownership. Thus, as to

those lands, which total approximately 222,000 of the 262,000

acres of allotted lands on the Reservation (see State Pet. 5),

the Eighth Circuit and the South Dakota Supreme Court

agree that the lands are not Indian country.

Nor is any disagreement evident between the Eighth

Circuit and the South Dakota Supreme Court with respect to

the Indian country status of other lands within the original

exterior boundaries of the Yankton Sioux Reservation. The

South Dakota Supreme Court in Bruguier, for example,

recognized that lands that are held in trust by the United

States for the Tribe or its individual members are Indian

country. See State Pet. App. 153, 155, 167, 171-172. The

Eighth Circuit, while remanding for a determination of

which trust lands remain part of the diminished Reservation,

did not dispute that all such lands are Indian country. It is

7 No question was presented in Bruguier as to whether the land at

issue was a “dependent Indian communit[y]” under 18 U.S.C. 1151(b), and

the parties stipulated that the land was not an “Indian allotment[], the

Indian title{] to which ha[d] not been extinguished,” under 18 U.S.C.

1151(c). See State Pet. App. 142-148, 158-154. Nor was the court of

appeals in this case presented with any question as to whether any lands

within the original Yankton Sioux Reservation constitute dependent

Indian communities.

\

16

irrelevant why lands held in trust by the United States for

the Tribe or its individual members are Indian country—.e.,

whether, as the South Dakota Supreme Court appeared to

believe, the lands taken into trust for the Tribe since 1894

are Indian country because they are “informal” reservations

under 18 U.S.C. 1151(a), see Oklahoma Tax Comm’n v. Citi-

zen Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991),

and the allotments held in trust for individual Indians are

Indian country under 18 U.S.C. 1151(c), or whether, as the

Eighth Circuit appeared to believe, the tribal trust lands and

the allotments that remain in trust status are Indian

country because they are the remnants of a “formal” (7.e., the

original) reservation. The essential point at this stage is that

both courts agree that the allotted lands that have passed

out of trust status and are now in non-Indian ownership are

not Indian country, while both courts have indicated (but not

yet definitively held) that all lands held in trust for the

Tribe or individual Indians members within the boundaries

of the original Reservation are Indian country.®

The decision of the court of appeals in this case thus does

not present a true conflict—i.e., a “conflict{] with a decision

by a state court of last resort,” Sup. Ct. R. 10(a) (emphasis

added)—of the sort that warrants this Court’s review. This

Court reviews “judgment(s], decree[s], or order[s]” of lower

courts, not the reasoning upon which such judgments, de-

crees, or orders are based. 28 U.S.C. 2106.

b. The court of appeals’ decision also does not conflict

with this Court’s decision in DeCoteau, which held that

another South Dakota Reservation, the Lake Traverse

8 The resulting jurisdictional pattern—with federal and tribal

jurisdiction over individual allotments and parcels of tribal trust land—is

essentially the same as that involved in a number of this Court’s decisions,

including DeCoteau, Citizen Band Potawatomi Tribe, and Sac & Fox

Nation.

17

Reservation of the Sisseton-Wahpeton Tribe, had been

disestablished.

This Court has cautioned against automatically extending

a decision holding that one reservation was disestablished or

diminished to another reservation, explaining that the

“effect of any given surplus land Act depends on the lan-

guage of the Act and the circumstances underlying its

passage.” Hagen, 510 U.S. at 410 (quoting Solem, 465 U.S.

at 469); see also Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 202 (1999) (rejecting, as contrary to

“basic principles of treaty construction,” the argument that

“similar language in two Treaties involving different parties

has precisely the same meaning,” because “the historical

record” and “the context of the treaty negotiations” must be

examined “to discern what the parties intended by their

choice of words”). Here, the text of the surplus land Act

and the circumstances surrounding its enactment differ, in

several significant respects, from those in DeCoteau. __

As for the statutory language, although both surplus land

Acts provide for a cession of surplus lands for a sum certain,

the 1894 Act concerning the Yankton Sioux Reservation con-

tains provisions that do not have counterparts in the Act of

March 3, 1891, ch. 543, 26 Stat. 989 (1891 Act), that ratified

the agreement with the Sisseton-Wahpeton Tribe. The 1891

Act did not have a provision analogous to Article VIII of

the 1894 Act, which reserved from sale to settlers those

surplus lands occupied by the United States for Indian

agency, school, and other purposes. 28 Stat. 316; see

Yankton Sioux Tribe, 522 U.S. at 350 (stating that such a

provision counsels against finding the Reservation dis-

established). The 1891 Act also did not have a provision

analogous to Article XVII of the 1894 Act, which expressly

prohibited the sale of liquor on both the newly ceded

lands and on “any other lands within or comprising the

reservations of the Yankton Sioux or Dakota Indians.” 28

18

Stat. 318; see Yankton Sioux Tribe (suggesting that such a

provision draws a “jurisdictional distinction” between ceded

lands and reservation lands). Nor did the 1891 Act have

provisions analogous to Articles V and XI of the 1894 Act,

which provided a mechanism to fund schools, courts, and

“other local institutions for the benefit of [the] tribe.” 28

Stat. 315, 317. Accordingly, the 1894 Act, in contrast to the

1891 Act, contemplated a continuing role for the United

States and the Tribe in the area and a jurisdictional distinc-

tion between ceded and other reservation lands.

As for the surrounding circumstances, the Sisseton-Wah-

peton expressed their understanding, with a clarity that the

Yankton Sioux did not, that the cession of their surplus lands

and the allotment of their remaining lands would terminate

the Reservation. For example, the Court noted that spokes-

men for the Sisseton-Wahpeton Tribe had stated that “[wJe

never thought to keep this reservation for our lifetime,”

420 U.S. at 483; that “[w]le don’t expect to keep [the] re-

servation,” ibid.; and that “[t]his little reservation * * *

was given us as a permanent home, but now we have decided

to sell,” id. at 436-437 n.17. As the court of appeals observed,

“(t]he background of the Lake Traverse agreement was very

different from that of the 1894 Act, * * * because the tribal

members there had expressed their clear desire to terminate

their reservation.” State Pet. App. 23.

Finally, the Sisseton-Wahpeton Tribe negotiated for sub-

stantially more allotted acreage per capita than was pro-

vided by the General Allotment Act or was received by the

Yankton Sioux under the 1894 Act. The General Allotment

Act, pursuant to which the allotments to the Yankton Sioux

were made, provided that heads of household were to

receive 160 acres, single persons over 18 or orphans were to

receive 80 acres, and other persons were to receive 40 acres.

State Pet. App. 61. In contrast, each Sisseton-Wahpeton

member, “regardless of age or sex,” received a 160-acre

19

allotment. DeCoteau, 420 U.S. at 435; see also id. at 438 n.19

(quoting the Senate Committee Report on the Sisseton-

Wahpeton agreement as explaining that “the departure from

the general allotment act of 1887 in the case of these Indians

is just and proper,” principally because “the additional allot-

ments are in lieu of any residue which, under their title,

these Indians could have reserved for the future benefit of

their families”). The court of appeals thus recognized that

the agreement in DeCoteau differed from the agreement

here, because the Sisseton-Wahpeton, “in exchange” for the

termination of their Reservation, “negotiated allotments for

each individual, including married women.” State Pet. App.

23. The Yankton Sioux did not.

In sum, given the significant differences in the language of

the surplus land Acts involving the Yankton Sioux Reserva-

tion and the Lake Traverse Reservation as well as in

the circumstances surrounding their enactment, no conflict

exists between the decision below and this Court’s decision

in DeCoteau.

3. The State finally asserts (Pet. 20-26) that the court of

appeals erroneously concluded that three types of trust land

“retained, or may have retained, reservation status”: (i) the

so-called “agency lands,” which were ceded to the United

States under the 1894 Act but reserved for Indian “agency,

schools, or other purposes,” were later returned to the

Tribe, and are now held in trust by the United States for the

benefit of the Tribe; (ii) any allotted lands that remain in

trust; and (iii) any lands acquired by the United States since ~

1934 and held in trust for the Tribe or individual Indians

pursuant to 25 U.S.C. 465. No issue concerning the status of

such lands warrants the Court’s review at this time. Indeed,

the court of appeals explicitly deferred any determination

with respect to the status of two of the three categories of

trust lands identified by the State. State Pet. App. 48.

20

The court of appeals made only one definitive ruling with

respect to trust lands: that “the land reserved to the federal

government in the 1894 Act and then returned to the Tribe

continues to be a reservation under [18 U.S.C.] 1151(a).”

State Pet. App. 48. The court did not articulate its rationale

for that determination. Contrary to the State’s suggestion

(Pet. 20-22), however, the court of appeals’ determination is

consistent with decisions of this Court. In Citizen Band

Potawatomi Indian Tribe, 498 U.S. at 511, the Court con-

sidered the status of lands that were not within the

boundaries of a formally recognized Reservation but that

were held in trust by the United States for the benefit of the

Tribe. The Court concluded that, because the trust land

was “validly set apart for the use of the Indians as such,

under the superintendence of the Government,” the trust

land “qualifie{d] as a reservation.” /bid.; see United States v.

John, 437 U.S. 634, 649 (1978) (observing that “[t)]here is no

apparent reason why these [trust] lands, which had been

purchased [by the United States] in previous years for the

aid of those Indians, did not become a ‘reservation,’ at least

for purposes of federal criminal jurisdiction at that particular

time”); see generally Oklahoma Tax Comm'n v. Sac & For

Nation, 508 U.S. 114, 123 (1993) (recognizing that Indian

reservations, for purposes of 18 U.S.C. 1151(a), may be

either “formal” or “informal”).

It is thus of no present consequence whether, as the State

contends, the agency lands were necessarily severed from

the Reservation in 1894. Nothing in this Court’s decisions,

including Yankton Sioux Tribe, precludes such lands from

subsequently gaining reservation status if taken into trust

by the United States for the benefit of the Tribe. The

State’s assertion (Pet. 21) that the court of appeals’ ruling

with respect to the agency lands “contradicts the direct

holding of Yankton Sioux Tribe” is therefore erroneous.

21

The State’s concerns with respect to other categories of

trust lands are premature. Because the court of appeals

could not determine from the record or from counsel at oral

argument what other trust lands remain within the original

boundaries of the Yankton Sioux Reservation, the court re-

manded the matter to the district court “to make any neces-

sary findings relative to the status of Indian lands which are

held in trust.” State Pet. App. 48. Indeed, in describing the

court of appeals’ decision as providing that such trust lands

“may” or “might” possess reservation status (Pet. 20, 22, 24,

25), the State effectively concedes that questions concerning

the status of those lands are not ripe for this Court’s review.

And for that reason, even if the Court were to grant the

State’s petition and agree with the State that the original

Yankton Sioux Reservation was disestablished by the 1894

Act, the case would not furnish a suitable vehicle for defini-

tively resolving the Indian country status of all lands within

the boundaries of the original Reservation.

B. The Court Of Appeals’ Holding That The Yankton

Sioux Reservation Has Been Further Diminished

Does Not Merit This Court’s Review 4

We agree with the Tribe that the court of appeals erred in

holding that the Yankton Sioux Reservation has been

further diminished to the extent that allotted lands have )

passed out of Indian ownership. But we did not ourselves

seek certiorari on that issue because, on balance, we -con-

cluded that the court’s decision, while of undeniable signifi-

cance to the parties here, is not of sufficiently general

significance to warrant this Court’s review, at least not at

this interlocutory stage of the case. We adhere to that

judgment now.

1. The court of appeals correctly recognized that “[cJon-

gressional intent is the touchstone for analyzing whether the

1894 Act altered the status of the nonceded lands,” State

Pet. App. 26 (citing Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 586 (1977)); that Congress’s intent to diminish or dis-

establish a reservation must be “clear and plain,” ibid.

(quoting Dion, 476 U.S. at 738); and that such intent must be

“expressed on the face of the Act or be clear from the sur-

rounding circumstances and legislative history,” ibid. (quot-

ing Mattz v. Arnett, 412 U.S. 481, 505 (1973)). This Court has

consistently invoked those same principles in determining

whether a particular reservation has been diminished.

The court of appeals, however, did not apply those prin-

ciples correctly to the facts of this case. The court did not

identify any language in the 1894 Act or the 1892 Agreement

that “clear[ly] and plain[{ly]” evinces an understanding that

allotted lands would be separated from the Yankton Sioux

Reservation when they passed out of trust status and were

sold to non-Indians. Nor did the court identify such

language in the negotiation records or the other legislative

history. Cf. State Pet. App. 37 (noting that the U.S. Com-

missioners’ reports on the negotiations with the Yankton

Sioux “do not * * * mention any transfer of the Yanktons’

tribal sovereignty”).

Rather, the court of appeals relied on provisions of the

1894 Act, “read in its full historical context,” that anticipated

that tribal members would eventually receive fee title to.

their allotments, gain the ability to sell the allotments to

non-Indians, and become taxpaying citizens of the State.

State Pet. App. 42-43. For example, the court noted that

Article V of the 1894 Act, which provided for a fund to

support “local institutions for the benefit of [the] tribe,”

stated that the fund would be distributed once the Yankton

Sioux “shall have received from the United States a com-

plete title to their allotted lands, and shall have assumed

all the duties and responsibilities of citizenship.” Jd. at 39, 42

(quoting 28 Stat. 315). The court viewed Article V as “con-

templat{ing] a future in which such a fund would not be

—_— eee rr

23

needed,” id. at 39, presumably because tribal members, as

citizens, would then have access to state institutions. Such

provisions do not, in our view, provide the requisite “clear

and plain” indication of Congress’s intent to diminish the

Reservation.

We submit that the court of appeals’ holding on the di-

minishment issue, while erroneous, is not erroneous in a

manner that requires this Court’s review at this time. The

Eighth Circuit’s disposition of the diminishment issue, like

its disposition of the disestablishment issue, involves nothing

more than the application of settled principles of law to the

particular facts of this case. This Court rarely grants

certiorari where, as here, the court of appeals’ error appears

to consist solely of “the misapplication of a properly stated

rule of law.” Sup. Ct. R. 10.

2. The Tribe contends that the court of appeals’ decision

on the diminishment issue conflicts with various decisions of

this Court and with a decision of the Tenth Circuit. We do

not, however, perceive any square conflict with any of the

decisions cited by the Tribe.

a. The court of appeals’ holding that the Yankton Sioux

Reservation has been further diminished does not, as the

Tribe suggests (Pet. 9-14), conflict with any decision of this

Court. To the extent that the Tribe relies on this Court’s

cases that presented diminishment claims, those cases con-

cerned different reservations, different statutes opening

those reservations to non-Indian settlement, and different

circumstances surrounding the enactment of those statutes.

See, e.g., Solem, 465 U.S. at 472-481 (1908 Act opening the

Cheyenne River Sioux Reservation for homesteading did not

diminish the Reservation, but simply permitted non-Indians

to settle within existing reservation boundaries); Mattz, 412

U.S. at 494-506 (1892 Act opening the Klamath River Reser-

vation for homesteading did not diminish that Reservation).

As noted above, the Court has repeatedly recognized that

24

the question whether a reservation has been diminished

turns on the particular “language of the Act [opening the

Reservation to settlement] and the circumstances under-

lying its passage.” Solem, 465 U.S. at 469; accord Hagen, 510

US. at 410.

Other cases cited by the Tribe did not concern, as does

this case, whether the original reservation boundaries con-

tinued to exist. Those cases instead concerned whether

persons or activities on lands indisputably within the exist-

ing reservation boundaries were subject to regulation by the

United States, the State, or the Tribe. See, e.g., Montana v.

United States, 450 U.S. 544, 557-567 (1981) (Crow Tribe had

no authority to regulate non-Indian fishing and hunting on

reservation lands owned in fee by non-members of the

Tribe); Moe v. Confederated Salish & Kootenai Tribes, 425

U.S. 463, 475-483 (1976) (State had no authority to impose

personal property tax on Indians residing within the Flat-

head Reservation, to impose license fee on Indians con-

ducting tribal business within the Reservation, or to impose

sales tax on sales by Indians to Indians within the Re-

servation; State could require Indian retailers to collect tax

on sales to non-Indians within the Reservation); United

States v. Celestine, 215 U.S. 278, 283-291 (1909) (United

States had authority to prosecute a murder committed by an

Indian on a trust allotment within the Tulalip Reservation).

No conflict exists between the holdings of those cases and

the holding of the Eighth Circuit in this case.°

® The Tribe also suggests (Pet. 15-17) that the decision below

conflicts with 18 U.S.C. 1151(a), which defines Indian country to include

“all land within the limits of any Indian reservation under the jurisdiction

of the United States Government, notwithstanding the issuance of any

patent.” The court of appeals did not acknowledge any tension between

Section 1151(a) and its holding that the Yankton Sioux Reservation was

diminished by the sale of former allotments to non-Indians. The court may

have viewed Section 1151(a) as not applying to the threshold question,

25

b. Nor does the court of appeals’ decision conflict, as the

Tribe suggests (Pet. 20-22), with the Tenth Circuit’s decision

in Ute Indian Tribe v. Utah (Ute Indian Tribe II), 114 F.3d

1513 (1997), cert. denied, 522 U.S. 1107 (1998). As explained

below, Ute Indian Tribe II arose in unusual circumstances

that are not presented here.

In Hagen v. Utah, the Court held that the Uintah Reser-

vation had been diminished as a result of 1902 and 1905

statutes that allotted lands within the Reservation to mem-

bers of the Ute Indian Tribe and restored the remaining

lands to the public domain. 510 U.S. at 421-422. The Court

thereby resolved a conflict between the Tenth Circuit’s

decision in Ute Indian Tribe v. Utah (Ute Indian Tribe Dn,

773 F.2d 1087 (1985) (en banc) cert. denied, 479 U.S. 994

(1986), which held that the Reservation had not been dimi-

nished, and subsequent decisions of the Utah Supreme Court

holding that the Reservation had been diminished. See

Hagen, 510 U.S. at 408-409 (noting conflict).

While Hagen was pending, the Ute Indian Tribe moved in

district court to enjoin the State from exercising jurisdiction

on lands within the Uintah Reservation in a manner incon-

presented in this case, of what “the limits of [an] Indian reservation” are.

The court may instead have viewed Section 1151(a) as applying only after

such limits have been ascertained (and thus as not precluding a

determination that Congress intended that the limits of a particular

Reservation would change with the transfer of fee-patented land out of

Indian hands). Section 1151(a), if construed in such a manner, would not

conflict with the decision below. We are aware of no decision of this Court

or any court of appeals squarely accepting or rejecting such a construction

of Section 1151(a). If the decision below proves to have a broader impact

with respect to other existing Reservations where allotments have passed

out of trust status, there will be time enough for this Court to grant

review, either in this case after the proceedings on remand or in another

case holding that the issuance of a fee patent to a parcel of allotted land

and the subsequent sale of the land to a non-Indian removed the land from

reservation status notwithstanding 18 U.S.C. 1151(a).

26

sistent with Ute Indian Tribe I. After this Court decided

Hagen, the district court, which considered itself bound to

enforce the mandate in Ute Indian Tribe I as the law of the

case, invited the Tenth Circuit to recall the mandate. See

Ute Indian Tribe II, 114 F.3d at 1519- 1520.

The Tenth Circuit modified its mandate only with

respect to the portion of Ute Indian Tribe I that was directly

in conflict with Hagen—i.e., the portion that concerned

whether lands that had been restored to the public domain

remained within the Reservation. Ute Indian Tribe II, 114

F.3d at 1528-1531. The court thus did not disturb its earlier

holding in Ute Indian Tribe I with respect to other lands,

including those that had been allotted to tribal members and

that had since passed into fee status. Jd. at 1529-1530. The

court explained that, “[b]Jecause of the importance of final-

ity,” id. at 1520, only those portions of Ute Indian Tribe I

that were not in direct conflict with Hagen would be modi-

fied, id. at 1527.

The procedural posture of Ute Indian Tribe II makes it

unlike other diminishment or disestablishment cases, as the

Tenth Circuit itself recognized. See 114 F.3d at 1515-1516.

This case does not arise in a similar procedural posture. Nor

does this case present the same finality concerns as did Ute

Indian Tribe II, which involved an en banc decision that had

been the law in the Tenth Circuit for a decade by the time

of Hagen. In contrast, the boundaries of the Yankton Sioux

Reservation have been constantly in litigation since the

Tribe commenced this action in 1994,

3. Finally, the Tribe contends (Pet. 18-19), as does the

State (Pet. 26-29), that the court of appeals’ decision has

implications for other reservations in the western United

States. We do not expect that to be so. As explained above,

the court’s decision purports to be simply an application of

well-settled principles of law to the particular circumstances

of this case. Cases involving other reservations will neces-

27

sarily involve different statutes opening the reservation to

settlement, different treaties or agreements between the

United States and the Tribe, different historical circum-

stances, different subsequent settlement activity, and differ-

ent treatment of the opened lands by the United States, the

- State, and the Tribe. See Solem, 465 U.S. at 469 (“It is

settled law that some surplus land Acts diminished re-

servations and other surplus land Acts did not.”) (citations

omitted).

In any event, because the case was remanded to the dis-

trict court for a determination of precisely which lands

within the diminished Yankton Sioux Reservation are Indian

country, the court of appeals’ decision is interlocutory in

nature. If the decision below proves, contrary to our expec-

tations, to have the pernicious consequences that the Tribe

or the State suggests, the Court will have a further opportu-

nity to review that decision, together with any subsequent

decision of the court of appeals after the proceedings on

remand are completed.

CONCLUSION

The petitions for a writ of certiorari should be denied.”

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

JAMES C. KELBOURNE

Attorney

MAY 2000

10 If the Court concludes, contrary to our submission, that review of

the court of appeals’ decision is warranted, we suggest that the Court

grant both petitions, in order to ensure that it has before it the full range

of issues going to both diminishment and disestablishment of the Reserva-

tion.