Nos. 99-1490 and 99-1683
In the Supreme Court of the United States
STATE OF SOUTH DAKOTA, ET AL., PETITIONERS
v.
YANKTON SIOUX TRIBE, ET AL.
YANKTON SIOUX TRIBE, ET AL., PETITIONERS
v.
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.
In the Supreme Court of the United States
No. 99-1490
STATE OF SOUTH DAKOTA, ET AL., PETITIONERS
v.
YANKTON SIOUX TRIBE, ET AL.
No. 99-1683
YANKTON SIOUX TRIBE, ET AL., PETITIONERS
v.
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 1010.1 The opinion of the district court (State Pet. App. 50-113)
is reported at 14 F. Supp. 2d 1135.
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. In the 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 Yankton Sioux Tribe, pursuant to
the General Allotment 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. Id. 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).
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 certain'"
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 diminishment. 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 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 previously 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 concluded 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 reservation lands that were allotted pursuant to the allotment acts,
as well as the lands reserved from sale for agency, school, and other tribal
purposes." Ibid. 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. Id. 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," because
the Indian allotments were spread throughout the original Reservation. Id.
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 unallotted 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 "[c]ongressional intent is the touchstone"
for determining whether a reservation has been diminished or disestablished,
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 "[i]ntent to diminish or disestablish
a reservation must be 'clear and plain'" from the text of the statute,
the legislative history, or the surrounding circumstances. Ibid. (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. Id. 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 used and
the circumstances of its passage." Id. at 29 (citing Solem, 465 U.S.
at 469).
b. The court of appeals held that no sufficiently clear expression 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." Id. at 39.
The court viewed Article XVII, which prohibited the sale of liquor "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 "acknowledg[ing] the
continued existence of two distinct categories of land to which different
laws might apply." Id. 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 expected to remain outside of primary state jurisdiction."
Id. 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." Id. 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 separate county, in which the
Tribe could govern its own members so long as they obeyed the laws of the
State. Id. 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' subsequent 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. Id. 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." Id. at 37.
c. The court of appeals nonetheless concluded that Congress 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." Id. at 47. The court did not point to
any express statement in the 1894 Act, the 1892 Agreement, the negotiation
records, or the legislative history to support that conclusion. 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 43. 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 purchased land after it lost its trust status." Id.
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. Id. 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. Ibid.
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 simply to apply, to the particular circumstances of
this case, the rules of law previously announced by this Court in earlier
disestablishment and diminishment 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 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 precisely 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 reservation 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. Bartlett, 465 U.S.
469, 470-471 (1984).3 There is no expression of congressional intent, much
less the "clear and plain" expression required by this Court,
to disestablish the Yankton 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 indication that Congress
intended that the cession of the unallotted 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 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 offering 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 funding, 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
Congress intended to disestablish the Reservation. State Pet. App. 39.4
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 disestablish 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."
Id. at 34 (quoting S. Exec. Doc. No. 27, supra, at 48). The court of appeals
observed that the Yankton 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 continuing 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."); cf. 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).
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.5
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 jurisdiction 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 allotments 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. 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.2.6
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 occurred in Indian country,
and thus that the State lacked jurisdiction 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. The court then concluded that allotted lands that now are owned
by non-Indians do not constitute Indian country. Ibid.7
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 offenses 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 irrelevant why lands held in trust by the
United States for the Tribe or its individual members are Indian country-i.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. Citizen 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" (i.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.8
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,
decrees, 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 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 language 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 contains 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 disestablished). 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 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 distinction between ceded and other reservation
lands.
As for the surrounding circumstances, the Sisseton-Wahpeton 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 spokesmen for
the Sisseton-Wahpeton Tribe had stated that "[w]e never thought to
keep this reservation for our lifetime," 420 U.S. at 433; that "[w]e
don't expect to keep [the] reservation," 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 substantially more allotted
acreage per capita than was provided 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 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 allotments 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 Reservation 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.
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 considered 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." Ibid.; 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
& Fox 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.
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 remanded
the matter to the district court "to make any necessary 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 definitively 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
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 concluded
that the court's decision, while of undeniable significance 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 "[c]ongressional
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 disestablish 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 surrounding circumstances and
legislative history," ibid. (quoting 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 principles 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. Commissioners' 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 complete title to their allotted lands, and shall have assumed all the
duties and responsibilities of citizenship." Id. at 39, 42 (quoting
28 Stat. 315). The court viewed Article V as "contemplat[ing] a future
in which such a fund would not be 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 diminishment 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 concerned
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 Reservation for homesteading did not diminish that Reservation).
As noted above, the Court has repeatedly recognized that the question whether
a reservation has been diminished turns on the particular "language
of the Act [opening the Reservation to settlement] and the circumstances
underlying its passage." Solem, 465 U.S. at 469; accord Hagen, 510
U.S. at 410.
Other cases cited by the Tribe did not concern, as does this case, whether
the original reservation boundaries continued to exist. Those cases instead
concerned whether persons or activities on lands indisputably within the
existing 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 Flathead Reservation, to impose license fee
on Indians conducting tribal business within the Reservation, or to impose
sales tax on sales by Indians to Indians within the Reservation; 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.9
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 Reservation had been diminished
as a result of 1902 and 1905 statutes that allotted lands within the Reservation
to members 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 I), 773 F.2d 1087 (1985) (en banc) cert. denied, 479 U.S. 994 (1986),
which held that the Reservation had not been diminished, 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 inconsistent 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. Id. at 1529-1530.
The court explained that, "[b]ecause of the importance of finality,"
id. at 1520, only those portions of Ute Indian Tribe I that were not in
direct conflict with Hagen would be modified, 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 necessarily involve different statutes opening the
reservation to settlement, different treaties or agreements between the
United States and the Tribe, different historical circumstances, different
subsequent settlement activity, and different 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 reservations
and other surplus land Acts did not.") (citations omitted).
In any event, because the case was remanded to the district 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 expectations, to
have the pernicious consequences that the Tribe or the State suggests, the
Court will have a further opportunity 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.10
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
JAMES C. KILBOURNE
Attorney
MAY 2000
1 References to "State Pet. App." are to the Appendix in No. 99-1490
filed by the State of South Dakota.
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." Id. at 356 (internal quotation marks omitted).
3 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).
4 As the court of appeals noted (State Pet. App. 39), the fund referred
to in Articles V and XI was never actually established.
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.
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 allotment still held in trust or restricted
status, see Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 123
(1993).
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. 142-143, 153-154. 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.
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.
9 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, 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).
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 Reservation.