DeCoteau v. District County Court for the Tenth Judicial District – Oral Argument – December 16, 1974

Media for DeCoteau v. District County Court for the Tenth Judicial District

Audio Transcription for Opinion Announcement – March 03, 1975 in DeCoteau v. District County Court for the Tenth Judicial District

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Warren E. Burger:

We’ll hear arguments next in 73-1148, DeCoteau against the District Court.

Mr. Hirsch, you may proceed whenever you’re ready.

Bertram E. Hirsch:

Mr. Chief Justice and may it please the court.

This case is here on a a writ of certiorari to the Supreme Court of the State of South Dakota.

The issue presented is whether the Act of March 3, 1891 opening for a non-Indian settlement, the un-allotted and unreserved lands in the Lake Traverse Reservation, thereby, confer jurisdiction over Indians on the State of South Dakota, gave the State of South Dakota jurisdiction over Indians.

Since the State of South Dakota has never acquired jurisdiction in Indian country pursuant to either the 1953 Act of Congress Public Law, 280, which was mentioned here earlier or under the more recent Indian Civil Rights Act, the Act of April 11, 1968, the issue here really is whether the 1891 Act in any way changed the boundaries of the Lake Traverse Reservation, whether or not the open portions of the reservation are still an Indian country.

The facts of the case are really rather simple, with regard to Mrs. DeCoteau and her two children.

In December of 1971, the State of South Dakota started dependency and neglect proceedings against Mrs. DeCoteau, the aim of which was to terminate her parental rights to her two children Herbert John Spider and Robert Lee Feather.

The state was seeking authority to place those children for adoption.

In August of 1972, the District County Court, before which this dependency and neglect proceeding was pending, issued a custody order that continued a foster care placement for Herbert John Spider and validated a foster care placement that was then in existence for Robert Lee Feather.

At that time, a motion was made to the District County Court Judge that the case be dismissed for the sole reason that the acts or many of the acts where the alleged dependency and neglect occurred, the places where the acts occurred were in the open portions of the reservation.

Byron R. White:

Mr. Hirsch enlighten me, why is that particularly relevant?

I had thought that domicile in an adaption case was the standard, not where the acts occurred.

Bertram E. Hirsch:

Well, this case never reached the point of adoption.

In fact, the argument on the merits of whether or not there was, in fact, a dependency or neglect situation had never been completed.

There was never an adjudication of dependency and neglect, it was in the midst of that proceeding on the merits that the jurisdictional objection was raised.

Byron R. White:

I would still ask, why is the place where the acts took place pertinent?

Bertram E. Hirsch:

Well, it’s pertinent in terms of whether we are talking here about state jurisdiction over the Indian mother and her two children or whether we are talking about exclusive tribal jurisdiction.

Byron R. White:

Incidentally, does the record show where she was domiciled?

Bertram E. Hirsch:

The record does not show where she was domiciled.

The record shows that she is an enrolled member of the Sisseton-Wahpeton Sioux tribe that her two children are enrolled members and that it was stipulated in the circuit court habeas corpus proceeding that 50% of the acts giving rise to the dependency and neglect proceeding occurred on federal trust lands and approximately 50% occurred on lands that were open to settlement under the 1891 Act.

But, I might add, that that stipulation was made solely for the purpose of the habeas corpus proceeding in the circuit court and does not necessarily a statement by which I would be bound if we had to proceed once again on the merits in the District County Court.

The District County Court denied the motion and Ms. DeCoteau then proceeded by way of habeas corpus in the District County Court — in the circuit court, alleging the exclusive ground of lack of jurisdiction in the District County Court to proceed with the dependency and neglect proceeding and to issue orders regarding the custody of her two children.

The circuit court found that the areas of land that were open to settlement by the 1891 Act were no longer part of the reservation, were no longer Indian country and that therefore the State district court had jurisdiction to issue the custody orders pertaining to these two children and had jurisdiction to entertain the dependency and neglect proceeding.

The Supreme Court of South Dakota —

Byron R. White:

Mr. Hirsch, isn’t the district court, the court of general jurisdiction in the South Dakota state court system?

Bertram E. Hirsch:

The district court is the court of jurisdiction in family matters.

The circuit court also has general jurisdiction and other types of cases.

Byron R. White:

And was there an appeal from the district court to the circuit court?

Bertram E. Hirsch:

I believe that it is possible to appeal from the district court to the circuit court, but the statutes also allow in some instances for a direct appeal to the Supreme Court.

Bertram E. Hirsch:

But, we didn’t choose to follow that route.

We started a collateral attack on the district court proceeding by a proceeding in circuit court with a habeas corpus.

So, we never did finish the trial on the merits of the dependency and neglect.

That case, in fact, is pending resolution of this jurisdictional issue.

There was state pending resolution of this jurisdictional issue.

The Supreme Court of South Dakota needless to say affirmed the circuit court and held that the lands that were open for non-Indian settlement under the 1891 Act, were no longer part of the reservation.

The place to start, I believe, with this case is with the treaty that established the Lake Traverse Reservation, that treaty is the treaty of February 19, 1867.

And in Article 3 of that treaty, the Congress ratified an agreement with the tribe that gave the tribe a very clearly defined reservation and it described the reservation in the treaty as a permanent reservation.

The reservations located in the North East corner of South Dakota with a small portion of it in the South East corner of the North Dakota, it’s triangular in shape, basically.

Article 10 of the same 1867 Treaty, reserved to the tribal chiefs and headmen, the right to make rules and regulations for the security and safety of tribal members, the right basically to tribal self government.

There were — from 1867 until 1891 there were no acts or any agreements with the tribe that pertained to the boundaries of this reservation.

And then in 1891, after negotiating an agreement with the tribe, Congress ratified the agreement that open for settlement, the surplus lands on the reservation.

Now, the surplus lands are the lands that remain after allotment and after various other reservations are made, for example, for schools, religious purposes, for the BIA agency.

It was — it’s not the BIA agency in those days, but the equivalent.

After 1891, it’s agreed between the parties, I believe, that there is no other act that could have reduced the Lake Traverse Reservation in size or disestablished the open portions of it.

So, what we’re talking about is, whether or not the 1891 Act had that effect, we, of course, maintain that it did not and I’d like to start by going into the expressed language of the Act.

This Court in Mattz against Arnett at 412 U.S. has held that the test is whether — the test for termination of reservation or for disestablishment of any portion of it, is whether the language of the act expressly terminates the reservation or whether such termination can be inferred from a clear legislative history or surrounding circumstances.

The only two sections in the 1891 Act that are at all pertinent to the issues here at Sections 26 and Section 30.

Now, Section 26 is, basically, a straightforward verbatim transcription or rendition of the agreement that was reached with the tribe in 1889.

One of the — Article 1 of that agreement, which is repeated in Section 26 of the Act, says that the tribe cedes, sells, relinquishes and conveys its title to the surplus lands, to the United States.

Harry A. Blackmun:

That’s a pretty strong language, isn’t it?

Bertram E. Hirsch:

It is, Your Honor, but I think that we have to understand what the rest of that section says and read that in context and I’m going to do that in a second.

And I think we’ll see that the language is much less strong than it would on the face appear.

Section 30 of the Act, which is the only other act affecting the issues here, says that the lands that are ceded and sold and relinquished and conveyed shall be opened for settlement under the homestead and townsite laws of the United States, except for land Section 16 and 36, which are reserved for school purposes and made subject to the laws of the state wherein located.

Now, the important thing to answer your question Mr. Justice Blackmun about Section 26 and the session language is that in Section 26, the section recites Section 5 of the General Allotment Act and it says that this entire agreement is entered into under the General Allotment Act and this Court in Mattz v. Arnett gave a very, very careful analysis of the General Allotment Act and concluded at 412 U.S. Page 496 that — and I’m quoting that the General Allotment Act permitted the President to make allotments of reservation lands to resident Indians and with tribal consent, to sell surplus lands.

Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracks to individual Indians for agriculture and grazing.

When all the way–

Potter Stewart:

Well, where are you reading from?

I’m in your Appendix.

Bertram E. Hirsch:

I’m reading form the Mattz decision–

Potter Stewart:

In the beginning–

Bertram E. Hirsch:

–at page 496.

Potter Stewart:

Oh, you’re reading from the —

Bertram E. Hirsch:

From the actual decision of the court.

I’m not sure whether I have that in —

Potter Stewart:

Well, in Mattz?

Bertram E. Hirsch:

I’m reading the Mattz decision of this court–

Potter Stewart:

I see.

Bertram E. Hirsch:

–a quote from the Mattz decision.

Potter Stewart:

I thought you’re reading from a part of page 26.

Bertram E. Hirsch:

No, I’m not.

Potter Stewart:

Okay.

Bertram E. Hirsch:

The court said that when all the lands had been alloted and the trust expired, the reservation could then be abolished.

Now, with the Lake Traverse Reservation, the trust has not expired, in fact, by two executive orders of the President, one in 1914 and one in 1924, the trust period within the boundaries of the Lake Traverse Reservation was expressly extended and it’s been extended until right at this very time.

So, the fact that this is a special kind of session, it’s not comparable to what might be referred to as an absolute session where the tribe is very, very clearly giving up certain lands forever.

This is a session under the General Allotment Act and that’s a very special kind of session.

In fact, in Seymour against Superintendent, which affects the South-half of the Colville Reservation.

The language in the 1906 Colville Act, that this court interpreted in that case, said that the lands would be sold and disposed and this court found that because it was an agreement that was reached under the — or rather it wasn’t an agreement in that case, but the fact that the lands were to be sold and disposed under the General Allotment Act, placed that in a different category.

The same situation existed in Mattz, where Congress had an 1892 Act that disposed off certain lands within the Hoopa Valley or Klamath River Reservation under the General Allotment Act.

William H. Rehnquist:

Mr. Hirsch, does the record indicate the number of square miles that are involved in this claim reservation?

Bertram E. Hirsch:

The record of the case itself, I don’t believe does unless Exhibit number 1 might refer to it.

Exhibit number 1 is a 1936 map of the — an official map of the Department of the Interior that shows — and it’s the map that’s in use today by the Department of the Interior, it shows the reservation and with an identical description to a reservation that was established in 1867.

Now, I don’t know whether the legend of that map contains an acreage total.

Potter Stewart:

Same as this or not?

Bertram E. Hirsch:

No, it’s not.

Potter Stewart:

This was given to us on a different case, but it is United States Department of the Interior, Bureau of Indian Affairs, Indian land areas general.

Bertram E. Hirsch:

Right, that map is a map of the United States.

Potter Stewart:

Right.

Bertram E. Hirsch:

And imprinted on the map are the Indian land areas.

Potter Stewart:

Correct.

Bertram E. Hirsch:

The Exhibit number 1 is a map only of the triangular section, known as the Lake Traverse Reservation and that’s a map that the BIA uses today.

William H. Rehnquist:

Does the record indicate the number of the Indians living in the area now or the number of non-Indians living in the area now?

Bertram E. Hirsch:

No, it doesn’t.

I know the information.

William H. Rehnquist:

We will find, would you, would you–

Bertram E. Hirsch:

Yeah, the reservation contains 918,000 acres approximately, it’s 918,300.

Byron R. White:

It’s 918,300, isn’t it?

Bertram E. Hirsch:

That’s right, that’s right.

And the —

William H. Rehnquist:

Was that roughly a 150 sq. miles?

Bertram E. Hirsch:

It’s a 120 miles from north to south and it’s from — at the widest point from east to west, it’s about 40 miles, I believe.

The Indian population on the reservation today is approximately 3300 tribal members living on or adjacent to the reservation.

Potter Stewart:

In the total population?

Bertram E. Hirsch:

Of the reservation area, Indian and non-Indian, it’s approximately 30,000.

Potter Stewart:

Or would be–

Bertram E. Hirsch:

— a little less.

Byron R. White:

Would the 27,000 a difference, if you prevail here be subject to tribal jurisdiction?

Bertram E. Hirsch:

No, not at all.

This case only raises the issue of the tribe’s right to have jurisdiction over its own membership.

Byron R. White:

Only enrolled ones —

Bertram E. Hirsch:

That’s correct.

Byron R. White:

That must be, that must follow from the 1891 Act.

It’s something happened in the 1891 Act to the reservation, because of this reservation and —

Bertram E. Hirsch:

That’s right.

Byron R. White:

If the reservation hasn’t been disturbed in any way, the tribe’s authority would extend everybody in this direction.

Bertram E. Hirsch:

The tribe’s authority would extend to all the Indians —

Byron R. White:

–and everybody else.

Bertram E. Hirsch:

If the reservation had not been disturbed in anyway.

Byron R. White:

Yes.

Bertram E. Hirsch:

Well–

Byron R. White:

Or wouldn’t it?

Bertram E. Hirsch:

The issue of whether or not the tribe has jurisdiction over non-Indians on–

Byron R. White:

On reservation.

Bertram E. Hirsch:

Let’s say, generally, an Indian country, is an issue that is presently being litigated in several courts and is not really clear.

It’s clear but the tribe has certain jurisdiction over non-Indians for certain circumstances.

Byron R. White:

I’ll ask this way.

After the 1891 Act, the tribe’s authority over-ceded — over the land that was ceded, it was different than it was before, wasn’t it?

Bertram E. Hirsch:

What we are maintaining here is that —

Byron R. White:

I know what you’re maintaining, I know you’re maintaining, if you’ve had authority over Indians, did the 1891 Act changed the tribe’s authority in anyway over the land and those living on it within the area of the reservation that you claim to be–

Bertram E. Hirsch:

I don’t believe it did, I don’t believe it did.

The tribe’s authority was given to it by the 1867 Treaty and I don’t think that the 1891 Act in anyway changed the 1867 Treaty.

William H. Rehnquist:

Well then, under Williams against Lee, certainly, the Indian authorities would have a great deal of authority over non-Indians within the reservation area, wouldn’t they?

Bertram E. Hirsch:

Williams against Lee was a case, as I recall, where a non-Indian was suing an Indian for recovery of money that was owed for purchases at a store on the Navajo Reservation.

William H. Rehnquist:

And they said he couldn’t sue in the state court.

Bertram E. Hirsch:

They said he couldn’t sue in the state court — because there was an Indian defendant in the case.

William H. Rehnquist:

Well, would this be true here too that from now on, a non-Indian couldn’t sue in the South Dakota district court if he lived within this reservation area?

Bertram E. Hirsch:

If non-Indians live within the reservation and they have a civil action of the nature as was dealt with by this court in Williams against Lee yes, and they would have to sue in the Tribal Court and there is a Tribal Court that has been exercising that jurisdiction since August of 1972.

William H. Rehnquist:

And this reservation, it covers parts of five different counties in South Dakota.

Bertram E. Hirsch:

That’s correct.

And it also has a little scrip in North Dakota.

The Section 26 of the 1891 Act says that, the reservation or —

Byron R. White:

You concede or suppose you call it the section of — but you think the fact is that here the tribe on this land would have no authority over non-Indian?

Bertram E. Hirsch:

No, I am not saying that at all, I am saying that it’s —

Byron R. White:

On the ceded land?

Bertram E. Hirsch:

That on the ceded lands, it’s definitely clear, in terms of our position here today, it’s definitely clear, that the tribe has complete civil jurisdiction over non-Indians.

When an Indian is a defendant in a civil action and perhaps even when a non-Indian is a defendant in a civil action, what —

Byron R. White:

Your answer to Mr. Justice Blackmun’s question upon though was that yes, this case does involve all those people, all those non-Indians for the said reservation.

Bertram E. Hirsch:

But not necessarily to the all inclusive extent to what Mr. Justice Blackmun was perhaps getting to, and that is that where the action is between two non-Indians then the tribe’s jurisdiction —

Byron R. White:

What’s the authority of the state over a non-Indian, living on a ceded land, what about that state’s criminal law?

Bertram E. Hirsch:

The state’s–

Byron R. White:

Or it’s Civil Law or Child Neglect law with respect to a non-Indian in a ceded country.

Potter Stewart:

Let’s take this case if these have been non-Indians, in other words.

Bertram E. Hirsch:

If he is a non-Indian the State Law applies to him on the reservation.

Potter Stewart:

Why if this is reservation?

Bertram E. Hirsch:

The only way in which the tribe holds the reservation is to have jurisdiction over its own membership on the reservation and to have jurisdiction over non-Indians where the actions of non-Indians affect essential tribal relations.

That’s what the court said in Williams against Lee.

Potter Stewart:

Beg your pardon.

Bertram E. Hirsch:

I said that’s what this court said in Williams against Lee.

Potter Stewart:

Williams against Lee said the — if I have the case in mind, promptly said that the State Courts did not have jurisdiction and that was the case where non-Indian plaintiff was suing an Indian defendant, right?

Bertram E. Hirsch:

A non-Indian plaintiff was suing an Indian defendant, that’s correct.

Potter Stewart:

So, the State Courts does not have jurisdiction?

Bertram E. Hirsch:

That’s right, they had to go to Tribal Court.

Potter Stewart:

But there’s a–

Bertram E. Hirsch:

And I maintain the same situation would exist here, if that situation occurred on this reservation, on the ceded land.

Potter Stewart:

And the question is, as put by my brother White, what if in this very case, these people had been non-Indians but this mother had been a non-Indian and the children would have been non-Indians and the acts had occurred just as they did occur.

If this is a reservation that would have given the tribal counsel and its course, jurisdiction, an exclusive jurisdiction would it not?

Byron R. White:

This isn’t a 280 law state?

Bertram E. Hirsch:

No, it’s not.

Byron R. White:

No, it’s not.

Bertram E. Hirsch:

No it’s not.

Now, the thing is that for the tribe to acquire jurisdiction over non-Indians, there would have to be an active Congress that conferred that jurisdiction on the tribe.

Byron R. White:

They have it if it’s in the reservation.

Bertram E. Hirsch:

The treaty that established this reservation, specifically says in Article X, that the Chiefs and the headman of the tribe can make rules and regulations for the governance of its own membership, within the boundaries of the reservation.

Now, how far that extends is an issue that is perhaps an open issue.

William H. Rehnquist:

Was that any difference than the Williams against Lee.

I mean was there a specific act of Congress in Williams against Lee that gave the Navajos, the authority to regulate non-Indians under reservation?

Bertram E. Hirsch:

No, the situation there is that there was an Indian defendant and the law as it’s come down, Federal Indian Law does not give a tribe jurisdiction in a case where both parties are non-Indians, but where one of the parties is an Indian, then you have a different situation.

And that that’s the essence of the holdings of this court.

Potter Stewart:

But what case particularly says that?

Bertram E. Hirsch:

Well, you have —

Potter Stewart:

For any case?

Bertram E. Hirsch:

Okay.

Well, in Williams against Lee, that’s one case that says that —

Potter Stewart:

Which held that the State did not have jurisdiction?

Bertram E. Hirsch:

That the State does not have jurisdiction because there was an Indian defendant.

Potter Stewart:

Yes, now I am interested in any case or cases, do you know — let’s say that the State does have jurisdiction over people living on an Indian Reservation.

Bertram E. Hirsch:

In the cases of Draper and McBratney, there were criminal cases where non-Indians were involved and the area of criminal jurisdiction is defined by 18 U.S.C. 1151 and that’s the case that you have next in feather, where the Major Crimes Act applies to —

Potter Stewart:

That’s federal criminal jurisdiction.

Bertram E. Hirsch:

That’s right.

Potter Stewart:

Where I am talking about the State.

Not just any case or cases that say that the State may exert its power, its law, criminal or civil, over people living on an Indian Reservation?

Bertram E. Hirsch:

For a State to get jurisdiction, be it civil or criminal, over Indians on an Indian Reservation —

Potter Stewart:

No, no.

I think — I don’t want to be repetitious but perhaps, let me just say it once more, over people living on an Indian Reservation, non-Indians let’s assume they are, and this is not a Public Law 280 state.

Bertram E. Hirsch:

I think that the answer is that a state has jurisdiction over all the people within the state except as Congress otherwise states.

And with regard to Indians Congress has otherwise stated.

This particular case only though involves the issue of the tribe’s right to control its own people, to make rules and regulations for its own people.

Potter Stewart:

I think the questions from the Bench indicate that the significance of this case may go much further, that’s the point of the question, as I understood.

Bertram E. Hirsch:

Well, to be honest, I am not — this is a very developing area of law and I am not exactly sure in what direction it’s going to go in the next few years.

There is a case pending in the Ninth Circuit now that raises these issues and maybe it will reach this Court, I don’t know.

This area of law has really not been litigated, and it’s first coming before now.

Well, with regard to this 1891 Act, I think that it’s definitely clear that it did not reduce the size of this reservation so as to take away from the tribe its jurisdiction over its own people.

Congress has passed three acts in recent years that continue to recognize the boundaries of this reservation.

In 1972 there was a Claims Distribution Award Act, and that Act in the legislative history specifically refers to the Sisseton-Wahpeton and Sioux tribe of the Lake Traverse Reservation and the Act gave one million dollars in a lump sum to the tribe and the rest was distributed per capita.

In 1974, there were two acts that were passed.

One of which restored the tribal ownership approximately 90 acres of land that had been in Federal ownership.

This Court in Mattz thought that it was significant that a 1958 Act had restored Federal ownership to tribal ownership certain lands within the Klamath River Reservation.

In 1974 also, there was an act that allowed the tribe to consolidate its land holdings within the reservation, and if you look at the — if you look at the map of the reservation that the Solicitor General attached to his brief, you can see that the tribal land holdings are scattered all across the reservation.

And if in fact, the tribe has been given authority by Congress, which it has been this year, to consolidate its land holdings if it wanted to consolidate the land holdings in the Southern tip of the reservation with those to the north, it would have to buy a considerable portion of land.

I think it’s clear from the legislative history of these acts which refer to the reservation as a V-shaped reservation located in the North-East in corner of South Dakota and the South-East in corner of North Dakota.

Bertram E. Hirsch:

It’s clear that Congress in 1974 in passing these laws thought that the reservation continued to exist in the way it was established in 1867.

More than that in 1892 and consistently from that time on every annual report of the Commissioner of Indian Affairs and the Secretary of the Interior, have recognized the reservation as undiminished.

The proclamation of the President opening the reservation did the same, talked about lands embraced within the reservation and the Secretary of the Interior in 1895 in an opinion said that, he referred to ceded lands lying within the reservation boundaries, that’s the decision of Edward Paront(ph).

I see that my time is up.

Warren E. Burger:

Very well, Mr. Hirsch.

Mr. Day.

William F. Day, Jr.:

Mr. Chief Justice, and may it please the Court.

Your Honors, if this land in question, the boundaries thereof, the perimeters are an Indian Reservation, the State of South Dakota doesn’t have any jurisdiction.

If this land, except for the allotments thereon has been ceded, then the State of South Dakota does have jurisdiction.

Potter Stewart:

It has been ceded Mr. Day, wouldn’t you have an extraordinarily difficult problem of administering a law civil or criminal, if it would be on a patchwork basis of everything that’s quite there being under the jurisdiction of South Dakota and everything that’s read being under the jurisdiction of the tribe?

William F. Day, Jr.:

No sir, not that difficult.

No sir.

Potter Stewart:

I would be in interested in knowing some time when the court argument is going on —

William F. Day, Jr.:

Truly.

The United States makes quite a point in the —

William F. Day, Jr.:

Yes, I do sir.

And I will go into and I can go onto now if you like.

I would like to show the court the position of the State of South Dakota on this map that is part of the government’s amicus brief and the back of it, and we can kind of — we had the Colville case’s warning in the north half of the Colville Reservation was ceded or it was restored to the public domain.

Now, in 1887, they started the General Allotment Act and Senator Dawes started that.

And that let the Secretary of the Interior whenever he thought it for the best interest of the Indians and there were surplus land to allot these Indians or not allot them as he saw it fit, and sell off whatever portion of their surplus reservation that they wanted to.

So if the north half, for example of the Colville Reservation was ceded, that would leave and did leave the south half.

The north half boundaries would be no more because when they ceded it, they would necessarily by metes and bounds or something strike a line across where it was ceded and the north half was no more.

Now this is in effect, what happened in the Sisseton-Wahpeton Reservation.

The Secretary of Interior acquainted to Commission to go out and treat with these Indians for the sell of their land, and they did.

And under the agreement and the wording of the 1889 and 1891 Act, they ceded, sold, relinquished, and conveyed all interest in all of their lands that had been -– except the ones that had been allotted or were going to be alloted.

So in effect, what that did if we can show this court that the cede is strong enough and the words are strong enough in the legislative history, that wiped out the boundaries of this reservation and left the allotments sitting there on the public domain.

Now this gets into further — our position of the state as to what is Indian country, and in 1948, they defined by statute Indian country, 1151(a) and for our purposes 1151(c).

Now 1151(a) defined Indian country is all land within an Indian reservation under the jurisdiction of the United States except notwithstanding patents and , including rights-of-way.

Now that would be under the South Half of the Colville Reservation,st 1151(a).

That had not been opened or it had not been ceded and that would be the South Half of the Colville.

William F. Day, Jr.:

Now 1151(c) Indian country is defined as all Indian allotments, the Indian title to which has not been extinguished and this is the North half of the Colville —

Potter Stewart:

You are confusing me.

William F. Day, Jr.:

The Colville —

Potter Stewart:

The Colville case we argued this morning?

William F. Day, Jr.:

Yes sir, I am giving that —

Potter Stewart:

This map is of something else and the difference is —

William F. Day, Jr.:

This is Sisseton-Wahpeton map, but I am giving that as an example — the same thing had happened here only in 1892, there was some argument made here — you have got to have a boundary and I am saying in the Colville they had a boundary because they only took away half of it.

Potter Stewart:

And here we don’t have that situation?

William F. Day, Jr.:

No sir, here, they took away all of it which left this under 1151(c) and —

Potter Stewart:

Under 1151 (c) everything, didn’t read there, is Indian country as so defined.

William F. Day, Jr.:

Yes sir.

And consequently, the State of South Dakota is not after any Indian reservation because we don’t — we have Indian reservations in South Dakota, in Rosebud,in the Pine Ridge, that ceased to be an Indian reservation and I think under that theory now, this leads us Your Honor, with some checkerboard jurisdiction and 1151(c) was actually statutorized under United States versus Pelican case and in Pelican, in the Pelican case they recognized that there was going to be some checkerboard jurisdiction.

If I may quote a moment on page 399 of the Pelican decision.

Potter Stewart:

That’s what you will cite — Well, do it just later.

William F. Day, Jr.:

232 US 442, and on page 399, there is a statement, it is said that it is not to be supposed that Congress has intended to maintain the federal jurisdiction over hundreds of allotments scattered through territory, other portions of which were open to White Settlement.

But Congress expressly so provided with respect to offenses committed in violation of the act of 1897, nor does the territorial jurisdiction of the United States depend upon the size of the particular areas which are held for Federal purposes and they contemplate and until — and these Indian allotments which are trust allotments as what they call trust patents, it’s been historically that they go away, some were sold, there would be a lot less allotments here in my guess now than there would have been back in 1891 for example, because they are issued fees on them upon proper application and they are sold.

Warren E. Burger:

From what you say I take it, there could be a 90 acre track that would be subject to federal jurisdiction and all of the surrounding, immediately surrounding contiguous areas, State jurisdiction.

William F. Day, Jr.:

Yes sir.

Warren E. Burger:

And there are some of them 90 acres, are there not?

William F. Day, Jr.:

I can’t tell for sure how long —

Warren E. Burger:

Assume it was very small anyway.

William F. Day, Jr.:

There surely could be some, and if you look here, there is tracks of land together.

I don’t know that if this map constitutes a section as one mile because when I counted squares on it the other day, it didn’t come up to a 120 miles, it only come up to about 75.

So I don’t for sure if that’s if each one of those squares represents a mile or not.

But that is true under 1151 C Your Honor, is exactly what you stated.

Potter Stewart:

You said tribal jurisdiction on this checkerboard design.

What would be as to lot of lands only, is that your position?

William F. Day, Jr.:

Tribal jurisdiction would be to Indian allotments only.

Triable and/or federal.

Potter Stewart:

Without regard to whether those living on the alloted lands were Indians or non-Indians?

Potter Stewart:

Non Indians can live on alloted lands?

William F. Day, Jr.:

Yes they could.

Potter Stewart:

And would jurisdiction in that instance being with the tribal court?

William F. Day, Jr.:

It’s my understanding Your Honor that recently the tribal counsel passed an ordinance assuming civil and criminal jurisdictions over non-Indian persons.

Byron R. White:

On their Indian land?

William F. Day, Jr.:

Yes.

Well in this whole reservation because of the Feather case.

The Eighth Circuit Court of Appeals in the next case we are having, said that this, they reversed themselves and said now, we didn’t see it this back in 1891, so they’d have jurisdictions through all over.

Byron R. White:

I understand that.

But do you think did the Eighth Circuit decide that the tribe had under its decision would have authority over non-Indians?

William F. Day, Jr.:

The Eighth Circuit didn’t decide that.

Byron R. White:

No, but the tribe you say has now asserted authority within the entire area over non-Indian?

William F. Day, Jr.:

They have passed an ordinance, I believe, yes.

Byron R. White:

How about — what’s South Dakota’s position, is it your position that you would have authority over anybody who is living on alloted, ceded land?

Indians or non-Indians?

William F. Day, Jr.:

Yes sir.

Byron R. White:

What is your position with respect to non-Indians living on alloted lands?

William F. Day, Jr.:

The state of South Dakota doesn’t have jurisdiction.

Byron R. White:

Criminal or Civil?

William F. Day, Jr.:

No sir.

Byron R. White:

And you don’t claim it?

William F. Day, Jr.:

No sir.

Another interesting —

Potter Stewart:

Have you any breakdown to these 30,000 non-Indians living on alloted lands, does the record tell us anything about that?

William F. Day, Jr.:

Well I don’t believe so sir, there wouldn’t be — I live out near the Rosebud Reservation and it’s got be about the same.

There wouldn’t be very many non-Indians living on alloted lands, but they would at least allot —

Byron R. White:

Well let’s assume that, let’s assume that the non-Indian kills another non-Indian on alloted land.

William F. Day, Jr.:

Yes sir.

Byron R. White:

You are suggesting that South Dakota has never attempted to apply a criminal law to such situation?

William F. Day, Jr.:

You say a non-Indian on a non-Indian on alloted land, I believe that the state of South Dakota would have jurisdiction.

Byron R. White:

That’s what I thought.

You just said a minute ago that it wouldn’t, you were claiming jurisdiction?

William F. Day, Jr.:

Over Indians on alloted land.

Byron R. White:

No, I am saying non-Indians.

William F. Day, Jr.:

Oh sure, we would claim that.

Potter Stewart:

My question was non-Indians living on alloted land, you have good many non-Indians living on alloted lands, don’t you on this reservation?

William F. Day, Jr.:

Well I wouldn’t say too many.

I would say —

Byron R. White:

You have some.

William F. Day, Jr.:

But we would have jurisdiction in my opinion over the non-Indians.

Potter Stewart:

In other words, no matter what whether civil or criminal.

William F. Day, Jr.:

Yes.

Potter Stewart:

Even though they live on these alloted lands, if they are non-Indian Tribal Courts have no jurisdictions?

William F. Day, Jr.:

Well, they don’t have what jurisdiction they attempt to take Your Honor under the ordinance.

I am saying that state has jurisdiction, but now they have passed an ordinance saying that they also have jurisdiction over all people within —

Byron R. White:

Well just forget the Eighth Circuit decision just for a moment.

William F. Day, Jr.:

Okay.

Byron R. White:

South Dakota’s position historically has been, that it does have criminal jurisdiction at least over non-Indians wherever they are living.

William F. Day, Jr.:

Yes sir.

Byron R. White:

Within or without Indian reservation.

William F. Day, Jr.:

Yes sir.

Byron R. White:

Now you may run and with respect to civil jurisdiction, you may have little — it it’s a business transaction with Indians, you may have a problem with that.

William F. Day, Jr.:

Yes sir.

Byron R. White:

But does South Dakota’s position depend to a certain extent on whether or not this is in fact an Indian reservation?

William F. Day, Jr.:

Well yes, it does.

It depends on it to the extent of all this original 1867 area.

Otherwise and if we are correct, there is no area except Indian country on these red dots which are trust patterns or trust allotments in Indian land.

Potter Stewart:

Now would there be any non-Indians living on those trust allotments, and if so, how and why would they?

William F. Day, Jr.:

There could be through lease.

Most of the land down in Rosebud area, is leased by ranchers and there could be some improvements, that would be unusual, but it could be, it could happen.

Byron R. White:

Well, a lot of non-Indians working on alloted lands is leased.

There might be people be riding on them.

William F. Day, Jr.:

Oh yes, yes that’s —

Byron R. White:

(Inaudible) on them.

William F. Day, Jr.:

Right, right.

Are there any other questions around the like that?

Warren E. Burger:

Great many.

William F. Day, Jr.:

Excuse me sir.

Warren E. Burger:

A great many of them.

William F. Day, Jr.:

Okay.

Byron R. White:

Well, let me be very sure because I share this confusion.

If Mr. Justice White’s horseman is a riding across alloted land, and he is a non-Indian and he is shot by a non-Indian, the state of South Dakota assumes there is a criminal jurisdiction over that case?

That will be be my opinion, yes.

But if he is shot by an Indian.

William F. Day, Jr.:

Be Federal, it could be one of the ten major crimes which would be exclusively in the Federal Court then.

William H. Rehnquist:

No, does your answer to Mr. Justice Blackmun’s question there depend in any respect on whether or not this is an Indian reservation or whether it was all ceded?

William F. Day, Jr.:

On white on white, it’s not going to make any difference, but sir where you have problems or where you could have, since 1891 the State of South Dakota has assumed jurisdiction over all of this area, except on the allotments over Indians and Whites.

Now, you have a situation, if Feather holds up, where if you have an Indian and a white in a fight for example, so the state court is going to have to go out and arrest the white man, the Tribal Court’s going to have to go out and arrest the Indian.

Byron R. White:

So if you suggest the tribe now has an ordinance that would govern both sides of the transaction.

William F. Day, Jr.:

It could and then you would be forcing.

Byron R. White:

It could, if you say it has.

William F. Day, Jr.:

I don’t think they have the excess of that.

They have done it but I don’t know what they have done how far that —

Byron R. White:

This is the way to go for the litigation.

William F. Day, Jr.:

Yeah, probably.

But then Your Honor you are putting, you are into another altogether different situation or the state has been handling this and assuming it since 1891 up until the Feather decision in 1970 and 1972.

I think it’s the first time after that the tribes had a force up there.

But I’ll get on with the balance of it.

We are saying Your Honor that cede, sell, relinquish and convey all right title in interest is stronging enough as in the case of Alice v. Page.

It’s stronging enough to grant session just like the words public domain were used.

William F. Day, Jr.:

In the brief there, we have looked this up in the Webster’s dictionary and the word cede in other dictionaries and the word cede is what generally is used when one country grants session to another country.

They’ve made some statements, well maybe you should have cede absolutely maybe that’s alright or maybe you should have cede absolutely and for ever like in Alice v. Page.

But I think once you cede, convey, relinquish all right, title and interest.

Byron R. White:

You don’t agree with Mr. Hirsch that it’s a special kind of session here.

William F. Day, Jr.:

No sir, this was a direct session where in the state of South Dakota, when the federal government bought this land from this tribe for $ 2.50 an acre plus some other consideration, they bought it outright.

In turn, they went back and sold it to the settlers for the same price.

But it was not the same money and it’s not like the Mattz case it’s not like the New Town case or Seymour which wasn’t — which was a trustee homestead type relationship.

In this case is the session agreement and it’s different than that.

In those cases, the government didn’t guarantee to sell the land, the tribe didn’t get paid until the land was sold and settled by the homesteader, this was a direct session.

Even though in the — which I’ll get to in the other case, even though the Eight Circuit Court of Appeals said it wasn’t, but it absolutely is.

This bill in the 1891 Act when it was passed, there were about seven other reservations and this was tacked on to the Indian General Allotment Act.

Senator Dawes who wrote the 1887 Dawes Act or General Allotment Act also was the main senator on this bill.

Senator Dawes prior to the time, the bill passed made the statement that all 7 or 8 million of acres of land going in there that day was going to be restored to the public domain.

The Commissioner of Indian Affairs in 1890 prior to the passage of this bill said this land is going to be restored to the public domain and specifically mentioned Sisseton and Wahpeton, 660 thousand acres roughly and I imagine the reason he mentioned it because it was sold for $2.50 an acre and rest was $1.50 an acre.

The Department of Interior Reports also confirm this.

From that time on, from 1892 the official maps of the Commissioner of Indian Affairs for several years wiped it off.

Everything then was referred to as former Sisseton Wahpeton.

Then we get going down going down the road for several years and then the maps changed, they might get a circle around it that says former reservation or it might be later on shaded in enough.

I think a map that you have up here today that I thought I saw, shows the Indian reservation day as the original Sisseton and Wahpeton Indian reservation as it was back in 1867.

And I am suggesting Your Honors that in order to determine congregational intent or legislative history, all that is needed to be done in this case is to go back to the act, prior to the act, after the act look at what Senator Dawes says who was primarily responsible for the act.

Byron R. White:

Do you know what state the senator was from?

William F. Day, Jr.:

He was from Massachusetts, I believe sir.

Byron R. White:

Was he related to the later Vice President?

William F. Day, Jr.:

I don’t know.

Byron R. White:

Who was also very concerned in Indian Affairs?

William F. Day, Jr.:

I surely don’t know.

We think Your Honors that the session language that you don’t have to go any further than the face of the Act.

South Dakota came into being as a state in 1889, in the Enabling Act, Congress stated that South Dakota when it came and was to be a state received section 16 and 36 as school sections.

But it specifically said that if any of these sections or any of this land was in an Indian reservation, that the grant did not take effect until the reservation had been extinguished and the property and the reservation restored to the public domain, that’s in Section 10 of the Enabling Act which brought us into statehood.

I am suggesting that this is further intention to show that the intent of every one at that time was to seed the reservation, accept these allotments, extinguish the boundaries and you’ve had left what in 1948 is determined as Indian country under 1151(c).

William F. Day, Jr.:

There is also another school land section in the Act and that might not be, that’s open to interpretation they have argued about it.

In the brief, this provision was taken to the English Department at the University of South Dakota and they gave an opinion that the phrase modified not just the school land Section 16 and 36 but modified all of the land being open to the laws or subject to laws of State of South Dakota.

I am suggesting Your Honors that, if the Act is read in the legislative history surrounding this Act is determined that it’s clear under the rule set forth in Mattz, that this reservation in 1891 was terminated.

Byron R. White:

What was South Dakota’s interest in exercising jurisdiction over Indians in ceded territory?

William F. Day, Jr.:

Indians are citizens of the State of South Dakota Your Honor and we always have exercised jurisdiction over Indians and non-Indians alike in this area for almost 80 years and now, when it repairs that they are going to be under two or different laws, it’s really causing a lot of commotion.

Byron R. White:

Let’s assume that the state’s jurisdiction over non-Indians was not disturbed at all, but the only question is that jurisdiction over 3,000 Indians within this area.

You are not going to be disturbed very much are you?

If that were the result, I understand that it maybe that that wouldn’t be the result that the tribe or someone may claim that the Indian, the tribal authority is exclusive within the whole area with respect to Indians and non-Indians alike that maybe what somebody will claim.

But let’s just assume for the moment, that the only impact of holding that the reservation was not disestablished, is that you wouldn’t have jurisdiction over 3,000 Indians.

William F. Day, Jr.:

The impact Your Honor might not be as great when you have one class of people that you wouldn’t have to worry about.

Byron R. White:

Because you are historically —

William F. Day, Jr.:

It’s true.

Byron R. White:

Historically, your position has been that there has been dual sovereignty anyway in certain areas that you have always said that there was dual sovereignty on the lot of the lands, the State had authority over non-Indians and the tribe had authority over Indian.

William F. Day, Jr.:

Yes.

Byron R. White:

That’s been your historic position isn’t it?

William F. Day, Jr.:

I would say that yes.

Byron R. White:

Is that true in points of the state where this –?

William F. Day, Jr.:

I think wherever there is an alloted land, the state does not have Jurisdiction overt regardless if it’s in the ceded portion or if it’s in the open portion or closed portion.

Byron R. White:

But you would concede that the state has Jurisdiction over non-Indians?

Potter Stewart:

The reclaim.

William F. Day, Jr.:

Yes sir.

Byron R. White:

Alright.

So there is a dual sovereignty you would say?

William F. Day, Jr.:

Yes sir.

Excuse me for being slow.

Potter Stewart:

I am sorry you are being — it’s on both sides here.

William F. Day, Jr.:

No.

Potter Stewart:

What happens Mr. Day in a reservation which is clearly and concededly a reservation, let’s take the Rosebud reservation in your state?

Now who has jurisdiction there over civil controversy between two non-Indians?

William F. Day, Jr.:

State of South —

Potter Stewart:

Non-Indians.

William F. Day, Jr.:

State of South Dakota Your Honor.

I went across one of those cases, I am sure the other day that said that, but the state does — we exercise jurisdiction over non-Indians in Todd County South Dakota, what we are claiming to be the rules by the Indian Reservation.

Potter Stewart:

Well and you recognize it clearly as a reservation.

William F. Day, Jr.:

Yes sir.

Potter Stewart:

Everybody does.

William F. Day, Jr.:

We do.

Byron R. White:

Historically there hasn’t been much claim to the contrary, has there?

No one has attempted to cut the state’s out of that, have they?

It’s just been — up to now it’s been historically it’s been that the government has been interested in tribal authority over Indians that’s been.

William F. Day, Jr.:

Yes sir.

I will sit down, thank you.

Warren E. Burger:

Thank you Mr. Day, I think your time is all consumed.

Mr. Hirsch, the case is submitted.

We will hear arguments in 73-1500 Erickson against Feather.

Mr. Day, I think you may proceed whenever you are ready with this one.

William F. Day, Jr.:

Mr. Chief Justice and may it please the court.

Your Honors, this case involves the same alleged reservation, only this case originated out of the Eighth Circuit Court of Appeals on a writ of habeas corpus, and this is a petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

These ten Indian gentlemen, I believe, they’re ten of them in here, were all confined and convicted in the South Dakota penitentiary for offenses for which they have been convicted within the original boundaries of the Sisseton–Wahpeton former Indian reservation.

The–

Potter Stewart:

These were for various offenses.

William F. Day, Jr.:

Various offenses.

Potter Stewart:

And all took place on non-alloted?

William F. Day, Jr.:

All on free land, free simple land, non-alloted land, yes Your Honor.

Potter Stewart:

And I guess none of these offenses was, that was complicated further was under that ten major crimes act of the federal legislation.

William F. Day, Jr.:

The ten major crimes do not apply when we’re not in Indian —

Potter Stewart:

Well, I know, but if you were, that’s —

William F. Day, Jr.:

Yes, it would apply, but it didn’t get–

Potter Stewart:

Well, none of these crimes may have been within that list of ten.

William F. Day, Jr.:

Right.

Potter Stewart:

Do you know whether–

William F. Day, Jr.:

None of these–

Potter Stewart:

Those are the serious criminals.

William F. Day, Jr.:

None of these — well, I think may — I don’t know, I don’t know that.

Warren E. Burger:

But your point is that it doesn’t make any difference to the central issues, is that it?

William F. Day, Jr.:

No sir, not if the State of South Dakota has jurisdiction.

Potter Stewart:

That’s right.

William F. Day, Jr.:

The law or the case law that really developed on the Sisseton and Wahpeton, an Indian reservation were four DeMarrias, Indian cases.

Two of them were in the Supreme Court of — I believe the Supreme Court of South Dakota and second one of those cases, this court denied certiorari.

The first two cases, all decided that the Sisseton and Wahpeton land area had been ceded by the Act of 1891.

The federal district court, Judge Beck also held that and this case came into the circuit court of appeals, either argued at St. Paul or St. Louis.

In 1963, the circuit court of appeals of St. Louis upheld this very action and said that the lands had been ceded and this was not Indian reservation.

In 1963, if I have my date correct, the Justice Department of the United States also argued that the land, the reservation had been terminated.

In 1973, they’ve had a change of policy and they argued that the reservation was there according to the boundaries back in 1867, and so the circuit court of appeals overruled along line of cases, in fact, overruled themselves on this area in South Dakota.

Our argument, our main thrust of why they did it is that they blanketly applied Mattz, Seymour, the Newtown’s decisions to this reservation, former reservation, it gets confusing.

Our argument, simply, is this.

The Mattz cases and the Seymour case and this case, can easily be distinguished.

We are not asking this court to overrule your case of Mattz or your case of Seymour.

Those cases, evidently were decided on the rule set up by this court and for example, in Mattz, they tried to open that reservation for a long time and couldn’t get the job done and your rulings were right there.

But those two cases were decided on the trustee, homestead provision, wherein the government, bartered for this land from the tribe but they didn’t guarantee the sale of it.

They said, we’ll put it up for sale for you, we’ll have it homesteaded.

When that’s paid for, then the money will be in trust for you.

That was the fatal error of the circuit court of appeals in this case.

The circuit court of appeals said in this Feather case that this was not a session agreement and it absolutely was.

It said it’s like Mattz and Seymour, a trustee type deal.

Feather, I don’t know why they decided that, but I think just in the glair of Mattz and Seymour.

Now, all of the cases or all of the reservations in 1891 in this Indian Allotment Act of which Sisseton-Wahpeton was a part, as far as we have been able to determine, we are restored to the public domain and they were different.

Some had public domain wording, some had wording like this, the CRoW Act had a little different wording, but by the legislative history, by the face of the Act, we could determine, and from what Senator Dawes says, it was going to do, the seven or eight million acres went to the public domain.

The circuit court of appeals says that a session isn’t a session and in the briefs sometimes we are arguing that public domain isn’t public domain, cede and sell doesn’t mean cede and sell and it’s down to the point, Your Honors, that this area as so far as, as can be possibly done, should be decided because, since Newtown and Mattz and Seymour, this is breaking out, the litigation allover and I don’t see any ending site.

Byron R. White:

Did you apply for a rehearing in the Eighth Circuit?

William F. Day, Jr.:

I believe that they applied for a rehearing in the Eighth Circuit in which I was not involved sir, but I’m sure they did?

Byron R. White:

Did you get any votes?

William F. Day, Jr.:

No.

Byron R. White:

How do you know?

William F. Day, Jr.:

I don’t believe, we did.

Warren E. Burger:

They are doing all of this record then publicly or do they in the Eighth Circuit, I’m not familiar, Mr. Justice Blackmun knows the practice.

William F. Day, Jr.:

I– Major crime act.

Warren E. Burger:

It’s his Circuit–

William F. Day, Jr.:

I’ll have to ask Justice Blackmun.

I think they do sometimes, Your Honor.

Byron R. White:

Well, it isn’t important anyway–

William F. Day, Jr.:

No.

Byron R. White:

Except that there are two panels in DeMarrias and this is in here were different allover, all the judges are still alive with one (Inaudible)?

William F. Day, Jr.:

Well, Judge Lay in a dissenting opinion a few years ago, I think, brought all of this Indian problems to light and–

Byron R. White:

In what case is that?

William F. Day, Jr.:

Miner v. Erickson, it was, Your Honor, and we think that if the state court decisions are read on the law and that the 1963 federal circuit court of appeals DeMarrias has read, in light of what we have argued here today that we should go back to the DeMarrias and it’s distinguishable, we’re clear on the face and I think that’s all I have to say, unless there are some questions.

Warren E. Burger:

If you may want to save a little time for rebuttal.

William F. Day, Jr.:

Well, I would like to sir.

Warren E. Burger:

You may.

William F. Day, Jr.:

Thank you.

Warren E. Burger:

Mr. Sachse?

Harry R. Sachse:

Mr. Chief Justice, and may it please the court.

I want to say a word first about any Indian reservation, before talking about this one because it seems to me the discussion so far has been a bit confusing about that.

In almost every Indian reservation in the country, there is land, that has been allotted to Indians, there is land that has been sold and fee simpled to people who are not Indians.

There is often a large Non-Indian population inside an Indian reservation.

One of the characteristics of this reservation is that there is such a large Indian population inside it and that there is a going tribe within organized government and agency of the BIA and very alive and viable situation.

Basically, and without trying to go in all of the details of it, the State in which an Indian reservation is situated has full jurisdiction over Non-Indians who live inside an Indian reservation, both civil and criminal jurisdiction.

This court held so in number of cases starting in the 19th century with McBratney and Draper which were criminal cases and Justice Frankfurter laid this out in a good deal of detail and Cake versus Eagen and the Metlakatla cases and about–

William H. Rehnquist:

Is that civil as well as criminal?

Harry R. Sachse:

Civil as well as criminal.

William H. Rehnquist:

Cake and Eagen?

Harry R. Sachse:

Irrespective of where they live within the —

Byron R. White:

But if the transaction is within the Indians they are going to —

Harry R. Sachse:

Correct, if the transaction is with an Indian or it affects the vital interest of the tribe, they are going to be subject to Federal Law the exact extent of that is the kind of thing that’s still debated and it was before even in a case such as the Mazurie case, that’s under advisement.

Byron R. White:

And maybe debated eventually in this case.

Harry R. Sachse:

And may eventually be debated here.

Now, I think I need to review some law concerning this treaty as well as this reservation as well as the facts.

First briefly the facts, a permanent reservation was established by Treaty in 1867 with surveyed boundaries, and it’s this reservation which was much smaller than the land the Indians had previously had.

They had already had their big loss of land, and this was what was left to them, after great amounts of land had been taken away from them.

Then, by an agreement in 1889 made specifically under the General Allotment Act and at a time when the Indians were in great distress, the monies owed to them by the Federal Government had not been paid to them, it was the middle of Winter.

The Federal Government negotiated with the tribe to do what’s known as open its reservation.

That is to allow the sale of surplus land within the reservation and in this agreement and then in the act of Congress that ratified it, there are numerous references to the General Allotment Act, there is no such thing as was true with the North half of the Colville reservation where particular part of the reservation was cut off and an expressed language was used saying that, that has been removed from the reservation, you heard some talk that the public domain.

What’s important in this act, is there is no language saying that this was returned to the public domain.

Byron R. White:

Yes, but we do have the language obsession.

Harry R. Sachse:

You do have language obsession that is correct, but there is no specific area ceded, what ceded is what is not allotted.

Byron R. White:

As a matter of fact, ceded is the public domain.

Harry R. Sachse:

I don’t know what you mean by that.

Byron R. White:

Well what happened that after they ceded the property?

Harry R. Sachse:

After the property was ceded the government sold that land under the–

Byron R. White:

Was it in public domain?

Harry R. Sachse:

Well, only in the exact same sense that in–

Byron R. White:

It was handled as a part of a public domain by the same system there is a public domain which–

Harry R. Sachse:

But that — what I was going to say and I will try to get this, I think I want to do better to bring it down in historical perspective, but the Indians were paid for the land, how were they paid for it?

It was put in the Treasury of the United States to be used for their benefit; in other words, it’s a bookkeeping entry from one government place to another.

The money, the Indian agency was maintained.

The money was appropriated by the government as needed for the Indians.

The land was opened for homesteading, but only for homesteading, not for any purpose.

You have exact same actual dynamic that occurred in the South half of the Colville Reservation, which this court held in Seymour v. Superintendent, did not abolish that reservation.

The same dynamic that was done in Mattz v. Arnett as to that reservation namely, the non-Indians got what they wanted, the Indians got what they could.

The non-Indians got the right to settle that land.

Harry R. Sachse:

The Indians got the money from the settlement of that land, which was small enough.

The question remaining is what happened to the federal jurisdiction, what happened to the jurisdiction of the tribe, and I want to approach that problem now.

Warren E. Burger:

Would it be fair to say that the United States in those transactions was acting as the broker for the Indians to announce publicly that settlers could come in and buy it for $2.50 half an acre?

Harry R. Sachse:

It’s exactly so and we quote in our brief, where one of the senators objected to the session idea, to the fact that the government would pay the money immediately, and one of the other senators explained to him says, “This doesn’t mean anything, because this is just a bookkeeping transaction in the treasury.

We get right back the money that we are going to pay to the Indians as we sell off the land”.

Now, in some later acts, the government decided to do it the other way, to not pay the Indians at first, to only pay the Indians as the land was sold, but the practical effect of both kinds of acts is identical, that the Indians kept — lived on the allotted land.

The un-allotted land was opened up for homesteading because it was thought and this was said to the Indians in the negotiations, and this court talked about this in Mattz versus Arnett.

The excuse for doing this kind of thing was that it was for the benefit of the Indians to do it, that it was better for them to live next to a high caliber of citizen who would be farming his land and so forth.

That’s the kind of language that was used.

That was the same whether the Indians said that they ceded it first or said — or the government acted as agent disposing off it and by the way, this language session in the Ash Sheep case which we discussed in our brief is used in connection with an arrangement where the government only acted purely as agent, where they simply whenever someone wanted a piece of the land, it would sell it to them and give the money to the Indians.

In other words, cede was used, but there obviously was no technical —

Byron R. White:

Whether it impacted anything that the session had followed by the sale for homesteading or the settlement for homesteading?

What happened as a consequence, what was the impact with respect to the jurisdiction of the state?

Harry R. Sachse:

Of the State?

Byron R. White:

The state things, yeah.

Harry R. Sachse:

None, none.

The session of the land or the selling in fee sample of land inside an Indian reservation saying as in the reservation match — in Seymour versus Superintendent, South half of the Colville, that then is land is owned by a Non-Indian inside an Indian reservation.

Byron R. White:

Yes, but you would apparently think the State has civil and criminal jurisdiction over Non-Indians?

Harry R. Sachse:

Clearly.

Byron R. White:

How about the state’s Trespass Law?

Harry R. Sachse:

The States Trespass Law would clearly apply to Non-Indians, but that would be, that the extent that it’s applied —

Byron R. White:

How about the owner of the deeded land, the ceded land, he now has a fee simple title to it, and he wants to keep people off of his land, and he does it in the name of the State’s Trespass Law.

May he do so?

Harry R. Sachse:

I don’t think he could keep an Indian from —

Byron R. White:

Really?

Harry R. Sachse:

It seems to me that inside an Indian reservation —

Byron R. White:

Well, let me talk to you about a Non-Indian, can you keep a Non-Indian off in the name of the State’s Trespass Law.

Harry R. Sachse:

Clearly yes.

Byron R. White:

So the State’s Law does apply there.

Harry R. Sachse:

What I am saying is, that in a transaction between an Indian and a non-Indian —

Byron R. White:

I didn’t ask you about transaction Mr. Sachse, I asked you about the States Trespass law — does the State Trespass Law apply to that land?

Harry R. Sachse:

It applies to that land as to non-Indians, but not as to Indians.

The State’s Criminal law does not apply to Indians inside an Indian reservation.

Byron R. White:

So the State Sovereignty just doesn’t apply to that land, no matter whom it is owned by as far as keeping an Indian off of this.

Is that your thesis?

Harry R. Sachse:

I think that’s correct, that would be under Federal Law or under Tribal Law if it’s a matter of effecting an Indian inside Indian reservation.

Now, the General Allotment Act let a lot of questions unresolved.

The early questions that were unresolved was whether a reservation existed at all after there had been allotments and whether even alloted land was Indian land under federal jurisdiction and the court first addressed that question in 1909 in US v Celestine in which it held that even though land had been alloted to an Indian and patented to the Indian, that the land remained inside the Indian reservation that no land was removed from an Indian reservation until it’s specifically removed by Congress from the reservation.

That proposition was extended in 1916 in United States versus Nice, which held that the tribal relations of the Indians continues, and that federal liquor laws applying to Indians — would apply to Indians anywhere within the reservation.

But the important thing was this, that the States were claiming just as the State claims here that opening a reservation and allotting lands to Indians meant that State jurisdiction, that federal jurisdiction and tribal jurisdiction would only apply on the allotted lands.

And this creates several problems, one is the obvious one of having check plat books to see whose jurisdiction applies where.

The other one is even a bit more complicated, these red dots move around.

The tribe buys new land, the land can be consolidated, under recent act of Congress, this tribe has an active program of purchasing new land which Congress described as within the reservation, thereby again recognizing that the reservation still existed.

Byron R. White:

That’s been the situation for good many years.

Harry R. Sachse:

That’s right.

Byron R. White:

Hasn’t been a great deal for a couple of others.

Has there?

Harry R. Sachse:

Well, I think there has.

What has really occurred is that there’s been no law and order on a lot of Indian reservations, and part of a problem has been that the federal government hasn’t done its job, State hasn’t done their job, and the tribes have been too weak to do anything.

Potter Stewart:

What is the State’s job?

And what does the State do on an Indian reservation?

On Indian reservation what is the State’s responsibility?

Harry R. Sachse:

The State’s responsibility in an Indian reservation is as to non-Indians to maintain law and order in matters between non-Indians.

The federal government in the tribe have the responsibility of maintaining law and order, in matters that affect Indians.

And neither one of them should have to look at plat book to do it.

It’s a question of whether the person is an Indian or non-Indian.

That’s difficult enough problem without having to figure out whether the policemen can go on this piece of ground or that piece of ground.

William O. Douglas:

Does the non-Indians ever get in conflict with an Indian?

Harry R. Sachse:

Yes, and when that happens, that’s federal jurisdiction under 18 USC 1151 and it makes a good deal of sense that federal–

Potter Stewart:

Is that generally or that’s true if it’s on a reservation?

Harry R. Sachse:

If it’s on a reservation.

Potter Stewart:

But not otherwise?

Harry R. Sachse:

If it’s off reservation it would not — that’s right the State jurisdiction.

William H. Rehnquist:

In a civil dispute?

Harry R. Sachse:

No, excuse me that’s inaccurate.

If it’s not on Indian country, it would be State jurisdiction, and it could be Indian country all for reservation.

Potter Stewart:

Yes, if any of patented land is Indian country, by statutory definition, is that correct?

Harry R. Sachse:

That’s right.

William H. Rehnquist:

In a civil dispute under Williams against Lee, isn’t a federal question?

It’s a question for the tribal court, if it’s under reservation.

Harry R. Sachse:

That’s correct, that within an Indian reservation, in a matter affecting Indians, the original jurisdiction, the root of the jurisdiction was tribal jurisdiction.

But, Federal Government through numerous statutes has preempted great parts of that jurisdiction, and for all major crimes for instance, there is Federal jurisdiction, but in a civil dispute between an Indian and a non-Indian on an Indian reservation it’s tribal jurisdiction.

That’s Williams versus Lee.

Warren E. Burger:

Laying aside the major crimes question, and you had a very simple statement that I understood throughly, for a moment or two there, when you said it doesn’t depend on geography or plats, it depends on the racial origin.

Now, were you confining that to reservations as you suggested first or for Indian country.

Harry R. Sachse:

That is true in Indian country but if you — Indian country’s any land inside the reservation, if this court were to hold that this reservation had been abolished by the 1891 Act, which I think would be a very restrictive and artificial interpretation of what Court has done and that’s in Seymour versus Superintendent, and I think would also undercut 18 USC 1151 seriously at least for this reservation.

Potter Stewart:

So we had — if the court should hold that?

Harry R. Sachse:

If the Court should hold that, then each one of these red spots is a little island of federal and tribal jurisdiction, and we are not in a time now, when these —

Potter Stewart:

Isn’t it as my brother White suggested?

Harry R. Sachse:

The way it’s been is that everyone has ignored both the Indian, and Federal rights there, and I don’t want to testify.

But, I don’t think the Court should assume, that the situation has been good.

And that you can assume that because we haven’t faced this issue before, that it’s perfectly alright to leave it another 50 years.

Potter Stewart:

On the other hand, if the court should decide that statute, the session statute didn’t amount to a conveyance, then the result would be, that the State would no longer have any power to enforce its laws in any of these several counties, if any Indian was involved.

Harry R. Sachse:

That’s correct, it would be a federal question or as in any other Indian reservation, and that wherever it occurred, and this is something that Congress has decided as a proper way for the federal government to exercise its–

Potter Stewart:

If this is an Indian reservation.

Harry R. Sachse:

Yes and whether this one is or not it will be the same situation you are describing in other reservations of the state, clearly are reservations.

We are speaking of proposition that this we call a reservation, where a major tribe lives and where there’s major number of Indians retreated like the other Indian reservations in the State.

Potter Stewart:

Well, I suppose the vast proportion of the — this is something like what 27,000 non-Indians and few 3,000 plus Indians tracked in this Lake Traverse area.

Harry R. Sachse:

That’s correct, but we are not trying to subject to the non-Indians to Federal or Indian jurisdiction except to extent needed to fulfill the trust response —

Potter Stewart:

Which means that whenever they are involved with an Indian the state does not have any Jurisdiction.

Harry R. Sachse:

That’s correct.

Potter Stewart:

With respect to its civil, criminal, or family, or status law.

Harry R. Sachse:

That’s right.

Byron R. White:

If it has to be tried —

Harry R. Sachse:

I haven’t seen it, I have heard that, that’s so.

I suspect that it goes beyond the authority that the tribe has –?

William H. Rehnquist:

How do we know that the tribe doesn’t have authority to reach non-Indians?

Harry R. Sachse:

Well, the McBratney case and the Draper case and criminal matters.

William H. Rehnquist:

McBratney says is that the State has a right to try a White man for a crime that took place on an Indian reservation.

It didn’t say that tribe couldn’t try it.

Harry R. Sachse:

Well, I suppose I just have to answer that this has been at least tacit holding of this court and our assumption of the court in number of cases, I refer you to Cake and Eagen where Justice Frankfurter tried to lay out the limits on tribal jurisdiction.

And it’s never been faced directly in the last 10 years perhaps by this court but is has been faced before.

My time is up, and I am feeling bad about taking all the time of my partner.

Warren E. Burger:

You are on our time for a minute or a two here.

Mr. Justice white, do you have a further question?

We will hear from your friend then, Mr. Gustafson.

Larry R. Gustafson:

Mr. Chief Justice, if the court please.

I would like to try and answer a question or two possibly that has been proposed here before to some others on both sides.

I live rather close to this reservation being 20 miles away from it.

As far as this map here contained — in this area, that is correct.

I don’t live on the reservation now, but I live about 20 miles away.

Byron R. White:

The question was there is —

Larry R. Gustafson:

Yes, I don’t think there is any part or any confusion even by the State that there is a reservation on part of this land.

I believe it is –what can we say that they are admitting, they are conceding that all of the red area is reservation.

Potter Stewart:

They are conceding it is Indian country.

Larry R. Gustafson:

It is Indian country, it is–

Potter Stewart:

But not a reservation.

Larry R. Gustafson:

But, that the federal law does apply, that the law for the tribe applies on minor crimes, and let’s come back to 1151 that we adhere on that thing.

We think that 1151 a is what applies, they are saying it is 1151 c, and as far as we are concerned here at this time, it’s under the Major Crimes Act that we are primarily thinking of.

Most of these ten defendants that I was on here, on the thing and I will grant you, I was the one that filed the writ of habeas corpus in the district court in this, after we had gone through the post-conviction hearing in the State Court with more defendants but they were no longer under sentence, so we didn’t proceed with them.

Larry R. Gustafson:

But, most of them were for the Major Crimes Act.

I don’t know which of you justices asked, but that was asked.

Byron R. White:

You are anxious to have your clients sentenced under the Major Crimes Act?

Larry R. Gustafson:

That is true Your Honor.

They feel that they get a very much better and very much fairer.

They resent state jurisdiction, they think that for the past number of years that they haven’t had just as under state jurisdiction. Out in our country, there is a saying that a good Indian is a dead Indian, and that hurts very-very much most of these Indians.

Byron R. White:

Was there anything in the record in this case that would indicate that the State proceeded unfairly against —

Larry R. Gustafson:

No, and I am not trying to allege that the State did proceed unfairly.

I think that in a lot of instances judge that when these fellows get behind bars, they begin to think these things.

I am not trying to allege that they did, but because of the sentiment involved and because it is white men applying that, they very much resented.

Well, they don’t resent the federal law.

Now, there was one other individual what I did represent after this group here that was not involved in this group who happened to be a white man, who had killed an Indian.

And he wanted to be sentenced under the Major Crimes Act, and under his request, we did go in and get him sentenced under the Major Crimes Act, which was his request on a post-conviction hearing and we did do this.

This was done last Spring, the Federal did assume jurisdiction.

Potter Stewart:

Now, how did you do that under the Eight Circuit opinion?

Larry R. Gustafson:

Yes, under the Feather case.

After the Feather case came out —

Potter Stewart:

After the Feather case was decided —

Larry R. Gustafson:

After the Feather case came out via the State Circuit Court —

Potter Stewart:

Then reservation —

Larry R. Gustafson:

Right and our State Circuit Court out there is a court of trial court.

In fact, January 1st we are only going to have one court.

It’s all going to be the State Circuit Court.

But, that’s what we did is came back state — reality vacated the sentence on the thing the feds came in and arrested him and I pled him guilty for the same charge in Federal Court which was a murder charge as far as that’s concerned.

But, they were very dubious of the state jurisdiction and Indians I think we can say as a whole very much dislike the state jurisdiction —

Potter Stewart:

Most people don’t like to be tried in a criminal court?

Larry R. Gustafson:

Well, they seemingly don’t have any other objection and they think that they get more justice in the federal court.

I am not going to try and say they do, I have confidence in our State Court, but nevertheless, these Indians do not seem to feel that way and I think that, that is one factor that is very hard to control the people when they feel that they aren’t getting justice.

It is very, very difficult.

As far as this tribal resolution is concerned that has been brought up here, I have been advised that this was vacated very soon after it was enacted — tried to be enacted, they could see the fallacy, it was explained by a counsel where they were off on the wrong foot on the thing.

Larry R. Gustafson:

But, the big thing that this Feather case has is not going onto the civil part of questions that have been propounded, I realize that they can come in indirectly.

But, that is coming on to this Federal jurisdiction and this of course, starts out a long ways back.

I think one thing that comes onto this Federal jurisdiction, that hasn’t been brought out here today, we brought it out in our brief.

And that is in 1901, the State ceded all federal criminal, ceded to the Federals, all state jurisdiction over federal offenses, and in 1903 the Federals assumed this jurisdiction.

We have this in our brief and it’s a thing that the Circuit Court of Appeals did and I argued this to them, when we did argue the Circuit Court of Appeals, (Inaudible) I argued in DeMarrias, I was a culprit on DeMarrias in the Circuit Court of Appeals, as well.

I wasn’t able to do the chores that I should have, but I nevertheless was there. But, in the second time, in Feather case, this was brought up, it wasn’t a controlling factor by then because they felt, as we can very well see their position that this Mattz case, the Newtown case, the Condon case, the Seymour case, all came in and answered this question perhaps easier, perhaps in a different way, perhaps more definitely than it was handled or could be handled by this 1903 and this 1901 Act.

It is a little bit interesting to me —

Potter Stewart:

I missed a little bit what your argument is, that happened in 1901 and 1903.

Larry R. Gustafson:

In 1901, our state legislature ceded to the Federal government all of the jurisdiction over all Indian country and in 1903 the federal government assumed this jurisdiction.

So, regardless —

Potter Stewart:

That’s question begging, it doesn’t answer the question of what is Indian country, does it?

Larry R. Gustafson:

No, it does not.

It does not and as I say, we have set forth that in the brief here on the Bench.

I believe that it comes back very directly here on all of these points here that we have before us, is what is this jurisdiction.

We feel that the case that we have before us, as far as a criminal is concerned is very, very much on a par with the Seymour case, but it’s on a par with the Newtown case which is of course up there in our Federal District Court with the Mattz case that it definitely does reverse DeMarrias.

There is no question about that, that has been spoken of here today.

But, in order to reverse this and go back to DeMarrias, we believe that it would be necessary to reverse also the Seymour case.

In fact, after the Seymour case, our State Supreme Court in Molash (ph) came down with a very nice decision on another circuit.

They reversed some other decisions there, perhaps pick on them for the minute that they did not in their decision say that they were reversing.

They just went ahead with it, they came on to those different parts there.

But we believe that we have to go back to this original case of Celestine which definitely has the principle that Congress is the only one that can diminish this reservation.

That Congress has not diminished, has not seen fit to diminish this reservation.

By 1151 in itself and 1151 especially with the Footnotes and 1153 with the Footnotes, as is brought out in our brief here on the thing, definitely goes on the principle that Congress is annoyingly, is assuming jurisdiction on all of the reservation, not just the part that is trust land as the state would have us believe.

And that’s the only thing that makes sense.

If we don’t have such a situation as that, we have the thing that was brought up right here to start with and that is a checkerboard, that is a thing that this court in Seymour wanted to stray away from, wanted to keep away from on the thing and they so ably set it out in Seymour on the thing, and if we don’t have Federal Jurisdiction of this whole reservation, we will come right back into this thing that you try to guard against in the Seymour case and that is a checker boarded situation, someone would have called it a crazy quilt situation.

Warren E. Burger:

I thought that Justice Hughes in his first ten year on this Court, way back conceded that there was bound to be a checker board as you call it, checker board situation with this hotch⋅potch of laws and treaties, I may have misread him.

Larry R. Gustafson:

I didn’t get that idea and definitely from Seymour, that is what this Court attempted to avoid, in fact they set it out I think very, very plainly.

The state in that instance wanted to interpret this as not withstanding the issuance of any patent, to mean, not withstanding the issuance of any patent to an Indian.

But the state does not suggest, nor can we find, any adequate justification for the interpretation.

The issue has been squarely put to rest by congressional enactment of the recently prevailing definition of Indian country in 1151 to include all land within the limits of any Indian Reservation under the jurisdiction of the United States government not withstanding the issuance of any patent.

Larry R. Gustafson:

And thank you.

Warren E. Burger:

Thank you.

Mr. Day if you can finish in ten minutes, we will finish today and let you get back to the Indian country, otherwise we will go over till tomorrow.

Do you think, you can finish in ten minutes.

William F. Day, Jr.:

Yes, I can sir.

Your Honors, my brother Mr. Sachse says that this is almost like the situation in Mattz, it’s almost a trustee relationship.

It really does the same thing because you are putting it in out of one till into the other, and that’s the problem.

It isn’t the same, it’s clearly not the same on the face of the Act.

It’s a direct session and sale, it’s not the same money, the government doesn’t do the same things, it’s not the same wording.

And if it’s clearly plain, it should be left clearly plain.

Counsel, my brother Mr. Gustafson, I am sure, has been States Attorney in his area, as I have down close to my reservation.

I don’t know my brother Sachse’s information, Plat Book or Checkerboard jurisdiction for officers that grow up and live in that country is no big problem, because in most instances, the land is leased by people and most of the crimes are committed in the towns where it’s normally all, mostly all fee patented and there is no problem.

Speaking personally, if I can for a moment, I was also a tribal judge for about five years out in the Rosebud Indian.

I probably was only a white tribal judge in the United States.

I think, I know, how it is, on closed portions of reservations, on 1151 (a) and it’s also on 1151 (c), that’s not the issue in this case.

The issue in this case is was this, the boundaries of this reservation diminished?

If they were on the face of the act this Court should say so.

If they weren’t on the face of the Act, but were by surrounding history, legislative intent then the Court under its own rules should say so.

And I believe that if — I know you will read them, I believe that it’s clear, first on the face and if not but both ways.

When you sum it all up, it comes up to about 98 anyway.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.