Amicus Curiae Brief — Osage Nation v. Irby

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1514 P Street, NW, (Reai

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| Supreme Court, U.S }

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Supreme Court of the Anited State

1) Petition For Writ Of Cert

The United States Court Of A

For The Tenth Circ

BRIEF OF AMICUS CURIAI

[ONAL CONGRESS OF AMERICAN INI]

IN SUPPORT OF THE PETITIONE]

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NATIVE AMERICAN R

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AdililitLlOtl

REASONS FOR GRANTIN

HE WRIT OF CERTIORAI

né {7 ue Stions esentled in tHhis 4

Fundamental to the United States’ Poli

Supporting Indian Self-Determination

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he responsibility of allotm:

the General Allotment Act. Bu

impatient and beg: to adopt

aimed at individual Indian reservation

THE BOARD OF INDIAN COMMISSIONERS

Thus. the actual allotment of land on ma

tions was primarily accomplished th

legislation, with each allotment o1

employing its own statutory language,

a unique set of tribal lobbying and |

promise. See COHEN’S HANDBOO!

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petween »otate and federal o

which sovereign has authority

that were opened by the acts an

passed out of Indian ownership

nal matter, the States have juris

unallotted opened lands if

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urplus land act freed

vation status and thereby

reservation boundaries. On

Federal, State, and Tribal authoriti

jurisdiction over these lands if the

ict did not diminish the existing h

rvation because the

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Uuntry unde!

rvabtion

allotted in severalt

the members thers

At least 38.000.00:

ractice was to

after allotmen

remunerate

ands were entered

2.000.000 act

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ry

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fee patents at

he removal of sales restriction

the loss of about 23,000,000 ac

ans who retained ir land

LLO full control over |] were

‘he assimilation and allotment policies result

in the impoverishment of Indian people, loss of thei:

land base, and the destruction of their cultural ident:

ties. In 1928, the Institute for Government Researc!

issued The Problem of Indian Administration,

report sponsored and initiated by the federal gover:

ment, which examined contemporary life for tribal

communities nationwide. LEWIS MERIAM ET AL., INS’

TUTE FOR GOVERNMENT RESEARCH, THE PROBLEM

INDIAN ADMINISTRATION (1928). The Meriam Report

conveyed a particularly troubling portrait * the

poverty, health risks, weak economic prospects, and

lack of access to education in Indian country. At the

root of this social malaise, the Meriam Report found

years of “past policies adopted by the government i

dealing with the Indians... which, if long continued

would tend to pauperize any race.” Jd. at 7

In 1934, Congress repudiated this allotmen

policy in the Indian Reorganization Act (“IRA”), 25

U.S.C. § 478 (2006). In all, over 86 million acres of

tribal lands were separated from Indian ownership

between 1887 and 1934. During this period, 118 Indian

reservations had been allotted, 44 of which had been

opened to homestead entry by non-Indians under the

public land laws. AM. INDIAN POLICY REVIEW COMM’!

95TH CONG... FINAL REPORT 309 (Comm. Print 1977)

The IRA provided a Congressionally-sanctioned

vehicle for tribes to develop their own forms of gov

ernment under constitutions approved by

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sis Complicates the Administration

riminal Justice Throughout India

ountry and Encumbers Law Enforc:

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nconsistency misestablisnment Ana

ysis Produces Confusion As To Civil

Jurisdiction Amongst Sovereign States

Which Stymies the Social and Economi:

Development of Indian Country

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K3d 1075 (D.C. (

101). the D.C. Circuit considered whether the Envi-

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ronmental Protection Agency (“EPA”), under its

program of treating Indian tribes as “states” for pur-

pose of administering air quality standards developed

pursuant to Clean Air Act (“CAA”), 42 U.S.C

7601(d) (2006), had authority to administer the

rogram on tribal lands whose status was “in que

on.” The court not only held that a tribe did not

lave jurisdiction over such lands in question, but that

finding of tribal jurisdiction over land was required

hrough notice and comment ruJemaking, rather than

yn a case-by-case analysis, before even the federa

Sa ' ram ilatary ~anictiar Fe,

vernment could assume reguiatory jurisdiction. /a

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1089. This essentially means that whenever

irty questions the status ol a reservation, Ind

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bes without litigatea reservation poundarl:

e many environ! tal progran

7 é DeTII : ' pos €¢ INd | ij ei tee LiVeiy 1¢ aj

ne onunarum taced Dy 1eaera agencle

I ie board when executing their statutonm

ties on behalf of tribes. Pet. at 23-26. Whether it 1

t te Le partment or Justice investigating ana

secuting a murder on ie Osage Reservation; the

epartment of the Interior seeking to defend the

tribe’s water rights appurtenant to the reservation or

] aa ,% - ‘ : tT . Bia : ~s ise _

orecing Ttedaera: liquor laws: O! ne National India

aming Commission approving a state-tribal gaming

; enforcing ¢ ler imin$ li;

‘

Lrates the 1nabDllity ol tedaera

circumstance illus

cies to take any action if reservation boundaries a

so easily called into question by reference to

quent events or modern demographic statistic:

It is of national importance that this C

address this jurisdictional confusion and facilitat

Congress’ policy of self-determination by providin;

tribes, states and the federal government with a co!

sistent framework of analysis to determine whether a

reservation’s boundaries have been diminished

disestablished

2. This Case Provides An Excellent Vehicle

Upon Which to Clarify the Law Governing

Diminishment or Disestablishment of Res-

ervation Boundaries.

This case provides a unique opportunity fo

Court to affirm the preeminence of statutory la

guage in discerning congressional intent through an

allotment act which poignantly lacks any marker

indicating diminishment. See Pet. at 13-18 (providin

an in-depth review of the statutory text). As the court

of appeals itself noted, the “operative language of that

statute does not unambiguously suggest diminish

ment or disestablishment of the Osage reservation.’

Osage Nation v. Irby, 597 F.3d 1117, 1124 (10th C

2010). In addition, the Osage Act satisfies thre

additional factors that weigh in favor of continued

reservation status: part of the land was authorized

by the Secretary of the Interior to be se

for tribal purpose: permission by tribal meml

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obtain individual allotments before the land was

opened; and mineral resources to the tribe were

reserved as a whole and never allotted. Jd. at 1123.

Thus, given the Tenth Circuit’s admission, their

disregard of the probative value of statutory evidence

provides this Court with a record that directly and

distinctly embodies the disagreement amongst the

circuits.

This case also provides a better vehicle for review

of the proper standard for holding a_ reservation

disestablished because it lacks the procedural com-

plexity of other cases. This Court recently granted the

writ of certiorari in Madison County v. Oneida Indian

Nation, (No. 10-72), 79 USLW 3062 (U.S. Oct. 12,

2010), first on the question of whether tribal sover-

eign immunity can be used as a defense in foreclosure

proceedings for non-payment of property taxes, and

only secondarily on the question of reservation dis-

establishment. This case singularly presents and

focuses the important question of disestablishment,

and does so after full consideration and analysis by

the court of appeals, unlike in Madison County.

The procedural complexity of Madison County

arises out of the 2001 federal district court decision

and the 2003 federal court of appeals decision which

both held that the Oneida Indian Reservation was not

disestablished. See Oneida Indian Nation of New York

City of Sherrill, 145 F.Supp. 2d 226 (N.D.N-Y.

2001); and Oneida Indian Nation of New York v. City

of Sherrill, 337 F.3d 139 (2d Cir. 2003). After granting

review, this Court refrained from evaluating the

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question of disestablishment, thus leaving the

reservations boundaries intact, but holding that the

Oneida Nation was subject to the property taxes

based on the equitable perfciples of laches, impossi

bility and acquiescence. City of Sherrill v. Oneida

Indian Nation of New York, 544 U.S. 197, 216 n.9

(2005).

By contrast, this case serves as a better vehicl«

for the Court to address the inter-circuit conflict since

it presents just one overarching legal question: the

provision of a uniform framework for disestablish

ment analysis

CONCLUSION

For the foregoing reasons and those stated in the

petition, the petition for writ of certiorari should ob

granted.

Respectfully submitted

RICHARD GUEST

Counsel of Record

NATIVE AMERICAN RIGHTS FUN

1514 P Street, NW, (Rear) Suite

Washington, D.C. 20005

(202) 785-4166

richardg@narf.org

JOHN DOSSETT

General Counsel

NATIONAL CONGRESS OF AM

1516 P Street, NW

Washington, D.C. 2000 _