# Amicus Curiae Brief — Osage Nation v. Irby

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2645%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1214

## Text

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General Couns
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1514 P Street, NW, (Reai
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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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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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i LILIALLY, ‘ if i e2CuUb)
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

— wrists .
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
ii

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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rabdlisnm
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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in Michigan v. £.

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

] ]

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

{

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 _

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2645%3A7. Public record. Not legal advice.