Rosebud Sioux Tribe v. Kneip – Oral Argument – January 12, 1977

Media for Rosebud Sioux Tribe v. Kneip

Audio Transcription for Opinion Announcement – April 04, 1977 in Rosebud Sioux Tribe v. Kneip


Warren E. Burger:

We will hear arguments next in 75-562, Rosebud Tribe v. Kneip.

Mr. Sonosky, and it maybe (Inaudible), but I am going to undertake to suggest again that unless you want to be here until great deal later than the ordinary schedule that you would like consider not to exercising any compulsion to use all the time assigned.

Marvin J. Sonosky:

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

This case is here on the writ of certiorari to the United States Court of Appeals for the Eight Circuit.

The question before the Court is whether three-fourths of the Rosebud Sioux Reservation in South Dakota has been terminated by three statutes adopted in 1904, 1907, and 1910.

Each of those statutes opened a portion of the Reservation and provided for the sale of unreserved and unallotted land to settlers, had prices fixed in the statute, with the proceeds of the sales, and this is important, to be credited to the tribe in the Treasury only as received from the settlers.

The Rosebud Sioux Tribe is a part of the great Sioux nation, one of the important American-Indian tribes.

There is an armed resident population of about 7,000.

The genesis of the Reservation goes back to the 1868 Treaty when the United States and the Sioux agree to the establishment of the Great Sioux Reservation which embraces all of South Dakota, West of the Missouri River, about 25 million acres.

The Treaty provided that the Reservation would be secure to them and never any part of it would be taken from them without the written consent of at least three-fourths of the male adults.

In 1877, nine years later, the United States took 7 million acres of the Reservation.

That left about 18 million acres.

In 1889, the United States enacted the statute of that year, to which the Sioux agreed, with the three-fourths majority and half the land roughly, but 9 million acres was explicitly restored to the public domain with the provision that it would be disposed off, and the proceeds credited to the tribe.

This is important, at the end of ten years, any of the land left the United States would make a balloon payment and pay for all that was undisposed of.

As to the other 9 million acres, that was divided into six Reservations, all for the Sioux Tribes.

One of those six Reservations was for the Rosebud Sioux Tribe.

The 1889 Act provide for allotments, and the allotment process went forward shortly after the 1889 Act became effective.

In the back of the Greene brief, which is our opening brief, there is a map about the year of 1913, which shows the Reservation as established by the 1889 Act.

It includes, starting from the Eastern end, portions of Gregory and Lyman County, then Tripp County, then Mellette County and Todd County.

Now, these counties of course all came after the Reservation.

How many counties are there in South Dakota?

Marvin J. Sonosky:

I do not know how many counties are in South Dakota, Your Honor.

I am sure the Attorney General maybe able to tell you.

This came after 1889?

Marvin J. Sonosky:

After the 1889 Act they were organized.

As I say, the allotment process went forward.

In 1901, the United States undertook to take a cession, an outright purchase, by the Eastern portion of the Reservation; parts of Gregory and Lyman Counties.

An agreement was negotiated in that year which provided for the outright cession, sale, conveyance, and surrender of the land, about 450,000 acres, as I recall, for a lump sum of $1,040,000.00, and the Indians consented to that, again, three-fourths majority.

The agreement provided that it would not be effective until the Indians consented and until it was ratified by Congress.

It went to Washington, and it was sent to Congress for ratification.

Marvin J. Sonosky:

The House was willing to adopt the simple ratification Bill but the Senate insisted in two amendments.

One of which was to grant the State all Sections, 16 and 36, the school lands, and the other one of which was to open up the lands for free homesteads.

There was resistance to this on the ground that, since we paid tax money for this Indian land, we ought not to be giving it away, and it failed.

Ultimately, there was a compromise and the 1904 Act was enacted.

The 1904 Act, which is set up in our brief, and the Appendix to the Greene brief Page 1A.

The 1904 Act, the format of that Act is very interesting, because the Act itself provides that the land should be opened and disposed of at the statutory price, and the proceeds credited to the tribe only as received from the settlers.

But the Act opens by setting out in the preamble preceding the enactment clause, the 1901 Agreement, just as it had been consented to by the Indians.

Then comes the enactment clause, and then follows the agreement again, except this time they leave out one article.

It is amended.

They amend the agreement to strip it of the article that required the Union’s consent and the ratification by Congress, and they make another amendment which was, we are not going to pay you a $1,040,000.00 for it.

What we are going to do is open up this land and dispose of it, and as it is sold, the proceeds will be credited to you only as received.

That was in 1904 Act.

That took care of Gregory and Lyman on the Eastern end.

Incidentally, the best land, of course.

In 1907, before the Indians had received Dollar one…

William H. Rehnquist:

Mr. Sonosky, was the land under the 1904 Act ultimately sold?

Marvin J. Sonosky:

Practically — my recollection is that practically all of that was sold.

William H. Rehnquist:

And were the proceeds of those sales credited to the tribe?

Marvin J. Sonosky:

Yes, I suppose these were credited to the tribe.

In 1907, before they had received any money from the sales of these lands, the 1907 Act was passed and opened up Tripp County in the same way, same type of statute.

We refer to them as surplus land statutes on the theory that there were surplus to the Indian’s needs, and they were disposed off to the settlers and proceeds credited as received.

In 1910, it was the third statute which covered Mellette County, and that left Todd County, which was never affected by a statute, although efforts were made to obtain a similar statute for Todd County.

Now, each one of these three statutes, except for the 1904 Act, provided for allotments.

The 1904 Act, the allotments have already been made because it started out as a cession, provided for allotments to all Indians in the area to be opened, before it was opened.

Each one of them provided for a grant to the state of the school Sections 16 and 36, the United States paid for that land, $2.50 an acre.

The statutes also provided other benefits.

But in order to make absolutely clear that the United States was not buying this land, that the Indians were not selling this land, that the United States was not paying for this land, each one of these statutes in the last section, and you can take any one of them, the first one on Page 6A, provided that nothing in the statute shall in any manner barring the United States to buy the land.

The United States was not a purchaser, and it went on to say that the United States does not guarantee to find purchasers for this land.

It went on to say it again, that the United States, all its doing here is acting as a trustee to open up this land and dispose of it and credit the tribe with the proceeds only as received.

Now, to pursue Mr. Justice Rehnquist’s question, was that carried out?

Did they from time to time find buyers, did the buyers pay, did the money go to the tribe?

Marvin J. Sonosky:

Yes, Your Honor, the land was opened up and it was disposed off until 1934 when the Indian Reorganization Act was passed, at which time Congress provided that any land in this type of Reservation that were undisposed of, should be restored to the tribe.

And at that time this was restored to the Rosebud Tribe all undisposed of lands.

There were undisposed lands in Tripp County and Mellette County, and I just do not remember if there were any in Gregory County.

At the same time that was restored to the Rosebud Tribe, it was also restored to some 26 other tribes who fall in the same category.

Now, does the state argue that those restored lands are outside the Reservation, or does it concede that they are inside the Reservation?

Marvin J. Sonosky:

I am sure the state would not argue they are outside the Reservation because they are within the exterior boundaries of the 1889 Act, and the Indian Reorganization Act limited the authority to restore only to Reservations.

Now, 1910, as far as the Bureau of Indian Affairs is concerned and the Department of the Interior, this entire area is fixed by the 1889 Act, it was administered as an Indian Reservation.

The tribe itself regarded all of the people who live within those boundaries as living on the reservation.

In 1953, Congress passed what to Indians is the infamous Public Law 280, which authorizes state to take jurisdiction for Indians on a reservation without their consent.

The state of South Dakota in 1962 undertook to do that by an Act of the legislature.

But the people of the State of South Dakota in a referendum repudiated that Act and set it aside by a vote, as I recall, of almost four to one.

I understood from the brief that South Dakota does not appeal 280 states.

Marvin J. Sonosky:

South Dakota is not a 280 state, because that failed.

Because of that referendum.

Marvin J. Sonosky:

Because of that referendum.

I see, I see.

Marvin J. Sonosky:

Otherwise it would have been.

But it is not?

Marvin J. Sonosky:

It is not.

They decided against it then and never has been ever since?

Marvin J. Sonosky:


Now, I mention it only because the same interest that were moving that law continued to feel the same way, and there was harassment, and the state and counties continued to enforce their laws against Indians living on the reservation.

Finally, this suit was instituted by the United States District Court for the District of South Dakota, and the complaint alleged, and I mention this because it defines the only issue that is before the Court, the complaint alleged that the state and counties were enforcing state laws against Indians on the open portions of the reservation, and that the state had no authority, and asked for a declaratory judgment to that effect.

The state answered and admitted that it was enforcing the laws only on non-trust land within the open areas.

The District Court rendered a judgment, which is very broad, and the judgment appears on the red Appendix to the petition, Page 114.

The District Court held that the three Acts in question did extinguish the reservation or Indian land nature of the unallotted surplus lands in the said counties by returning them to the public domain, and did diminish the geographical location of the boundaries of the Reservation.

On appeal the Court of Appeals, after the case was submitted in the oral argument, held the case until this Court came down on this decision in DeCoteau County State Court.

After DeCoteau came down, the Court of Appeals rendered its opinion.

It held that these three — that first with the 1904 Act, that the 1904 Act ratified the 1901 agreement and that it was a cession.

Marvin J. Sonosky:

That the 1907 Act used the identical language of cession, as did the 1904 Act, there is no language of cession in the 1907 Act.

That the 1910 Act used identical words, whatever it was meant, it did not say words of cession, but identical words, and it held that the Reservation had been terminated.

How did the Court of Appeals come to the conclusion that there was a cession?

A cession is a sale, it is a high class sale, it is a sale between sovereigns.

To have a sale, you have to have a seller, and you have to have a buyer.

If you have a seller and a buyer, you have an agreed price.

Then, you will have a sale and a cession.

Section 6, the last section of each one of these three surplus land acts, says in so many words that the United States is not buying this land.

We are not even guaranteeing to find buyers for this land.

All we are doing here is agreeing to dispose of the land and credit the proceeds, and there are Reservations, if the Court please, in particular the Wind River Reservation, where the same type of statute opened the land, and only a little over 10% of the land was ever sold, and the other 90% after the Indian Reorganization Act was restored to the tribe.

How could the Court reach that?

The Court assumed there was a cession.

That is the fundamental error in the Court’s below.

No where in those opinions is there any explanation of how title got out of the tribe into the United States, and how do the Court’s below square their action with the language in the last section of these statutes.

Mr. Sonosky, can I interrupt you right there.

You referred to the 1934 Indian Reorganization Act, and I understood you to say that pursuant to that statute, the unsold lands were restored to the tribe.

Marvin J. Sonosky:

Yes, Your honor.

Well, if your theory is correct, why were not those unsold lands already the property of the tribe?

Marvin J. Sonosky:

They were the property of the tribe, they were the property of the tribe, the beneficial title to those lands never left the tribe.

All that happened is that those lands were subject to a statute that left them open for disposal, but until they were disposed off the tribe remained the beneficial owner.

Proof of that is that this Court held in the United States v. Creek Nation, which is cited in our briefs, where there was a mistake made by the United States surveyor in the line of the Reservation, and he puts Reservation land out into the public domain, and it was disposed off by the United States.

When the tribe sued to recover for just compensation, the question arose as to when did the title pass?

It did not pass when the erroneous survey was made because that was a mistake of a federal officer.

The United States is not responsible for that.

But when the patent was issued to the entryman, title passed and values were determined as of the date of the issuance of the patent.

The same thing is true here.

As a matter of fact, each one of these Acts provides that until that entryman does all that he is required to do in terms of residence and settlement, and pays for the land, he has nothing.

Thus when an entryman failed, his entry was canceled and the statutes that each of them provides, the land goes up again for sale.

Beneficial title never left the tribe.

If it had left the tribe, instead of restoring the lands to the tribe, it would have taken an Act of Congress to convey the lands from the United States to the tribe.

May I ask you this question Mr. Sonosky?

If the agreement that have been reached between Inspector McLaughlin, and three quarters of the adult members of the Rosebud Sioux Tribe back in 1901, had been accepted in the form in which it was negotiated and written, would that have been a cession?

Marvin J. Sonosky:

Yes, Your honor, that would have been a cession, and we said that in our briefs to the Court of Appeals before this Court came down with DeCoteau, because there was an agreement.

And very clear words of cession were there…

Marvin J. Sonosky:

Unmistakably, clear words of cession.

In the agreement?

Marvin J. Sonosky:

In the agreement, and there was an agreed price.

The Indians were transferring their land and the United States was giving them $1,040,000.00 for it, and that was DeCoteau, and that is what DeCoteau stands for.

Right, and if that agreement had been effectuated, you can see that that would have been a cession under DeCoteau, or you say you conceded that in the Court of Appeals before DeCoteau?

Marvin J. Sonosky:

Before DeCoteau.

And then the 1904 Act, the Congress, the Senate, and the House of Representatives, purported to accept, ratify, and confirm that agreement, but then they said as herein amended and modified, and that is your case?

Marvin J. Sonosky:

And the amendment was to strike the consent and ratification, and to eliminate.

Well, they might as well just throw it out.

What they were really doing was to make sure that the opposition understood that they were not spending tax money for land.

This is the format they adopted.

But in Mattz v. Arnett and Seymour v. Superintendent, which is by contrast to DeCoteau, the situation that we have here, where there is no sale, there is no buyer, there is no agreed price, the land was never placed in the public domain, Indian title was never extinguished, and the Reservation boundaries were never terminated or affected, and that is the controlling principle, is to cede the Rosebud case.

May I ask you another question Mr. Sonosky?

Supposing we were persuaded or the statute expressly provided, that upon the sales over a period of time to individual private citizens who would buy the land through the government as trustee for the Indians, that as each parcel were sold, the Reservation would be diminished to that extent, and that you therefore have a gradual diminution of the boundaries rather than the wholesale diminution that the lower Court found.

Would that be constitutionally permissible?

Marvin J. Sonosky:

I have no doubt that it would be constitutionally permissible because of power of Congress over Indians is so broad.

The reason I ask you is that some of the legislative history, as I read it, would be consistent with the Congressional understanding of that being what was actually going to happen.

Did they talk about diminished Reservation and change boundaries and the like?

Marvin J. Sonosky:


That I realize that it is not the theory of the Court below or the government’s theory?

Marvin J. Sonosky:

No, and since then we have had a statutory definition of Indian country, and it includes all end, trust or non-trust.

That is 18 U.S.C. 11…

So that is for purpose of criminal jurisdiction.

Marvin J. Sonosky:

Except that this Court has applied it in all cases.

It has not made the distinction.

The Court has applied it in all cases.

Marvin J. Sonosky:

The Court applied in Mattz v. Arnett and Seymour v. Superintendent.

The reason for it is that they just got sick and tired of having law officers running around and abstract of title in their properties to find out whether there was or was not untrust land.

It is pretty hard to figure that out even when you are living on the Reservation, and in order to permit effective prosecution of the law, that was done.

Thank you, Your Honor.

Warren E. Burger:

Very well, Mr. Sonosky.

Mr. Farr.

Lewis F. Powell, Jr.:

Mr. Farr, before you commence, will you help me understand the fact of the situation.

The main issue that I understand it is the boundary of the Reservation, the location of the boundary.

Who occupies the land within the disputed area?

Do Indians still occupy those?

H. Bartow Farr, III:

There are Indians within the disputed area, but I think the area is largely occupied by Whites, who purchased or are successors of the people who purchased the open land.

Lewis F. Powell, Jr.:


The principal interests of the Indian tribe as I understand it is whether the tribes or the state exercises jurisdiction within the disputed area.

H. Bartow Farr, III:

The tribe and federal government or the state, yes.

Lewis F. Powell, Jr.:


Well, who in fact has exercised jurisdiction legally?

What laws have prevailed within the disputed area in recent years, how far back?

H. Bartow Farr, III:

Well, this is a question which I think the record is unclear on Mr. Justice Powell.

Essentially, the United States understands the position, of course not having been the party to the suit throughout.

There has been some exercise of jurisdiction by the states.

They have been taking the position that this is land outside of an Indian Reservation which their jurisdiction applies.

Lewis F. Powell, Jr.:

State criminal law has been imposed or enforced within the disputed area.

H. Bartow Farr, III:

I believe that the state has gone ahead and imposed state criminal law, as well as though, I think the federal government and US attorneys have also imposed federal law, that there is basically been kind of a working relationship in this area.

I am not sure how much of this is reflected by the record, but I think as a practical matter that is generally what should happen.

Lewis F. Powell, Jr.:

Just one other question, we are not concerned with the individual title to any particular portion of land.

H. Bartow Farr, III:

We are not.

Lewis F. Powell, Jr.:

Just the boundary of the Reservation.

H. Bartow Farr, III:

That is right.

Mr. Chief Justice, may it please the Court.

The United States is appearing this afternoon as amicus curiae in support of the position of the Rosebud Sioux Tribe, that the decision of the Court of Appeals for the Eight Circuit should be reversed.

H. Bartow Farr, III:

We think that under the principle set forth by this Court in previous cases, particularly in Seymour, Mattz, and DeCoteau.

It is clear that the Acts of 1904 and 1970 and 1910 did not disestablish the boundaries of the Rosebud Sioux Reservation in the areas to which they apply.

I would like to note briefly at the outset one important general point, in suggesting that Congress did not disestablish the boundaries of the Reservation in the early 1900s, we do not mean to imply that Congress expected that those boundaries and the boundaries of comparable Reservations were going to continue indefinitely.

We agree that in the early 1900s, Congress contemplated at some period of time that the Reservation system would in fact come to an end.

But we believe that time was when the trust period on Indian allotments expired and the assimilation of Indians and White settlers on the lands had been accomplished.

In you view it would have taken an Act of Congress later than to…

H. Bartow Farr, III:

That is correct, that Congress at some point would have found that the assimilation had occurred, and would have passed an Act demolishing the Reservation.

At that point, all of these lands and all of the people on it, except if the federal government wished to retain jurisdiction over the Indians, would have gone within state jurisdiction.

In 1934 however, as the Court is aware, the Congress reversed that policy, it went and passed the Indian Reorganization Act and indefinitely extended he trust period on the Indian allotments.

I will discuss that more briefly in connection with the General Allotment Act of 1887.

Because this case involves an issue of statutory interpretation, the United States does not urge or perhaps even believe its possible for this Court to lay down a binding fixed rule that would govern construction of Acts on all similar cases.

However, we do believe it is appropriate for this court to reaffirm the principle that except where the language of an Act or the compelling legislative history shows a clear intention by Congress to contract Reservation boundaries and limit federal jurisdiction over certain areas of Indian Reservations, that whenever Congress, without a binding agreement, opens lands to White settlers, does not pay for them, and does not guarantee any payment, but only agrees to act as trustee for future uncertain sales, and leaves the property interest in the Indians, as they did in this case, that Act does not remove the lands from the boundaries of the Reservation.

As this Court said in Seymour, discussing an Act with a very, very similar terms, the purpose of the 1906 Act was neither to destroy the existence of the Reservation, nor to lessen federal responsibility or jurisdiction over the Indians having tribal rights on that Reservation.

Now, this principle that Congress did not intend to disestablish the Reservation does not warrant that the government is made up out of whole clause.

It is supported both by history and by the previous decisions of this Court.

To begin with, it is well recognized that the tribes are entitled to rely on certain rules of statutory construction.

In particular, doubtful expressions are to be resolved for the benefit of the Indians.

More particularly, in cases of this type, the intent to disestablish Reservation boundaries must be made clear, either from the Act or the legislative history.

And as this Court said on Rice v. Olson, the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation’s history.

All of these rules of construction apply to the case at hand.

Mr. Farr, could I interrupt you right there?

H. Bartow Farr, III:


As I understand the geography, we are really not talking about very many Indians, because all of the unsold land has been restored to the Indians, and all of the land which was sold was sold to Whites, isn’t that right?

H. Bartow Farr, III:

Those facts are true, yes, but in terms of the area in which we are talking about, we are talking about a considerable area of land on which Indians will either be able to move within federal jurisdiction or will be moving within state jurisdiction.

Of course, Indians do have allotments within those open areas.

Within the open areas?

H. Bartow Farr, III:

Yes, they do.

Could you clarify one thing?

What portion of this total map was restored in 1934?

How much of the original Reservation is in dispute?

H. Bartow Farr, III:

I would love to answer that question, but I have no idea.

The record does not tell us?

H. Bartow Farr, III:


These will be probably noncontiguous parcels, wouldn’t they would be little islands?

H. Bartow Farr, III:

They are likely to be, right, I mean depending on the settlement practices and who defaulted and who did not, the lands that would be left available were likely to be individual tracks, that is correct.

One last question then, does the record tell us how many Indians live on the lands in dispute?

H. Bartow Farr, III:

I believe that there is a figure stated in one of the opinions below.

I think that the Reservation covers about 7,000.

I think that the areas that we are talking about, the counties that we are talking about, the number of Indians are somewhere around 1,600 or 1,700, I think that is reflected in the record.

I see.

Now, those would be Indians that reacquired lands or now occupy lands which were originally…

H. Bartow Farr, III:

Well, not necessarily.

Again, they maybe Indians who were allotted lands at the time that these areas were open.

When the areas were open, Indians were first given an opportunity to select allotments within those areas.

But would not by virtue of those allotments, would not that land be Indian country?

H. Bartow Farr, III:

That land is Indian country.

And no dispute about that?

H. Bartow Farr, III:

I do not believe there is any dispute.

Well, how many Indians occupy land over which there is a dispute, do we know that?

H. Bartow Farr, III:

I do not know.

There would be very few, would there not?

H. Bartow Farr, III:

Well, I do not know how many there would be, but I think — I might just say that the principle I think extends further than that, because jurisdiction, if it only applies on allotments, the Indians, any time they step off their particular allotments on the territory that is owned by a White settler, may at that point be subject to state jurisdiction, and that is something that clearly the Indians do not want in the interest that we feel we ought to protect in this case.

Turning to the General Allotment Act of 1887, briefly…

So in other words the non-Reservation land can be at is, Indian country if it is owned by individual Indians?

H. Bartow Farr, III:

That is correct, that applies in the…

And by the same token or the other side of the same coin, within a Reservation, there can be fee simple and non-Indians?

H. Bartow Farr, III:

Well, there can be fee simple and non-Indians in terms of land ownership, there is no question.

However, for purposes of jurisdiction that is…

We are talking now about the geographic boundaries of the Reservations.

H. Bartow Farr, III:

That is correct.

H. Bartow Farr, III:

Now, the definition of Indian country, just to make sure that I have answered your question properly, the definition of Indian country in 1151 includes all areas including patented lands within a Reservation, within Indian country, and also, in the allotments outside the boundaries and Reservations within Indian country.

So within a Reservation, lands owned and fee simple by non-Indians is still Indian country?

H. Bartow Farr, III:

That is correct.

Byron R. White:

Do you know what the relevant proportion of Whites and Indians is in the area that is disputed?

H. Bartow Farr, III:

If my memory serves me correctly, Mr. Justice White, I think there is somewhere around 16,000 Whites and about 1,600 Indians.

Byron R. White:

16,000 Whites and 1,600 Indians?

H. Bartow Farr, III:

I believe that is correct.

We also believe in addition to the presumptions that I discussed a minute ago, that the General Allotment Act of 1887, that the policies and objectives of that are consistent with the principle that an Act such as this does not disestablish Reservation boundaries.

Although respondents in their brief have continually turned the General Allotment Act on its head, saying that it embodies the intent of Congress to disestablish Reservations.

This Court has considered that precise question in several recent cases and found the opposite intent.

We believe the Court correctly identify the intent of the General Allotment Act only last term in Moe v. Confederated Salish & Kootenai Tribes, in which it quoted from that with approval, the following language.

“Its policy, that of the General Allotment Act of 1887, 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 lands had been allotted and the trust expired, the Reservation could be abolished”.

That is the Act of Congress that I said in answer to your question, Mr. Justice Rehnquist.

Unallotted lands were made available to non-Indians with the purpose in part of promoting interaction between the races and are encouraging Indians to adopt White ways.

What was the year of that Act?

H. Bartow Farr, III:

That is 1887.


H. Bartow Farr, III:


In fact, respondents have said that the Sioux Act was in fact followed along from that general plan.

We think that, that indicates the Court has recognized an intent to retain jurisdiction and control over those lands during the trust period, with the consideration of whether to end the Reservation to be made at a later time when the assimilation had occurred.

We think the Court has noted that even more specifically in the cases in which we very heavily rely on our brief, Seymour and Mattz, and also in DeCoteau, which distinguishes both cases in a case where sale is made for a sum certain, and an agreement was made as the counsel for the tribe has discussed.

In addition to these guiding principles, we also feel that the legislative history and the administrative treatment that we have set forth in our brief supports the position of the tribe.

The remaining question then is, what is their sufficient to override this and the materials that the Court has before it?

Most importantly, we call the Court’s attention to the fact that there is nothing in the Acts that says specifically that jurisdiction over these areas was to be given to the states.

In fact, I think as a reading of the legislative history shows, Congress was really not concerned with the jurisdiction at this point.

The pressure on Congress was to open up lands for White settlers for two reasons.

One, the settlers wanted the lands, and two, the counties wanted a greater tax base.

Both of those objectives could be met perfectly comfortably by Congress, by opening lands within the Reservation boundaries, without sacrificing the principles of the General Allotment Act of 1887, which was to continue the Reservations during the period of assimilations.

Well, could the counties’ tax quite owned lands within the Reservation?

H. Bartow Farr, III:


I do not believe that there is any dispute about that, that was considered at that time, and I believe that even now would be considered land that is within the power of the states to tax.

In DeCoteau in fact, discussing this particular conflict of policy, the Court said in 1887, the General Allotment Act was enacted in an attempt to reconcile the government’s responsibility for the Indians’ welfare, with the desire of non-Indians to settle upon Reservation lands.

We submit in this case that the best way to reconcile, that was in the way that Congress did reconcile throughout this period, was to continue the Reservation system, but to open White lands so that they would have a taxable base for the county, and the Whites would have the additional lands.

For those reasons, as my time is getting short, I will close and simply suggest that the decision of the Court of Appeals should be reversed.

Thank you.

Warren E. Burger:

Very well, thank you.

General Janklow.

William J. Janklow:

Mr. Chief Justice and may it please the Court.

If I can, for beginning here, start out and refer again to the map that frankly is in the brief of the tribe, for the appellant in this case, because there were several questions by members of the Court concerning the areas.

This particular area where my left hand is over is Gregory County, which is affected by the 1904 Act.

This particular area where my hand is now over is Tripp County, South Dakota, which is affected by the 1907 Act, and where you see these two counties stacked on top of each other, or I should say one on the other, the top county is Mellette County, which is affected by the 1910 Act.

There is absolutely no dispute in this case with respect to Todd County.

While the state of South Dakota, the tribe, the federal government, I think it is the only time we have ever all agreed; we clearly agree that that is an Indian Reservation.

Even though there are fee patented lands on it, we feel that that is the type of situation that the Court was addressing in Moe, when it construed the Subsection 6 of the General Allotment Act, and not Subsection 5 of the General Allotment Act, or Subsection 12 of Act of 1889.

So when the government a moment ago was responding that this is the situation in Moe, the Court construed Subsection 6, and it is this type of Reservation in the Todd County area, which is implored as the checker board kind of problem that the Court has addressed itself too before.

But that is not the situation with respect to Mellette, Tripp, and Gregory.

There has been some questions by members of…

What about Lyman?

William J. Janklow:

I am sorry, Lyman County is this small little area.

Lyman is what, is 1904 Act?

William J. Janklow:

That is correct sir.

So was Gregory?

William J. Janklow:

That is correct.

That is Lyman County, I am sorry I missed it, it is just a small little corner up there.

General, in Todd County, are fee owned land subject to county taxation?

William J. Janklow:

Fee owned lands in Todd County are subject to county taxation.

Is the fee owned land subject to tribal jurisdiction?

William J. Janklow:

Well, the Rosebud Sioux Tribe, that is something that was frankly ploshed over by the government.

The Rosebud Sioux Tribe has passed an ordinance which provides that they have jurisdiction, civil and criminal over everybody within all four county areas, it is a recent vintage this particular one is.

William J. Janklow:

As a matter of fact, it is about time this lawsuit started, but their law and order code now provides that they have civil and criminal jurisdiction over everybody within, we call it the four county area, even though Lyman County would make it a fifth county.

That has taxation?

William J. Janklow:

They do not say that.

Their law and order code provides that they have jurisdiction over everyone within the Act of 1889, which is this area.

It has been approved by the United States Department of Interior as a valid tribal ordinance of recent vintage also.

Let me ask you this, do you conceive the power of the tribe to exercise civil and criminal jurisdiction over all of Todd County?

William J. Janklow:

Absolutely not with respect to non-Indians, but that is clearly not the issue in this case, but we do not conceive that at all, sir.

So there is no additional issue about what you have just told us in the rest of it.

William J. Janklow:

No sir.

Now, the question was also asked in the disputed area, and we will call that the — it is three, and if I say three, I really mean three in a part of fourth or four, but in the disputed area, the question was asked whether or not the tribe has exercised jurisdiction.

The government responded.

They believe everybody has been exercising jurisdiction.

I defy anybody, anytime since 1904 to show any case that the Federal Government has ever handled in the federal Courts, with respect to non-Indian land in Gregory County.

Since the Act passed in 1907 with respect to Tripp County and with respect to 1910, with respect to Mellette County.

There is litigation with respect to the Indian lands because what we have in the old Reservation, there were Indian allotments that were taken, and under 1151, Subsection C, Title 18 of the United States Code, there is no argument by the state of South Dakota that that is clearly federal jurisdiction, and for all we care, that is also the Rosebud Sioux Tribe’s jurisdiction.

Every place there is an Indian allotment in these three counties, and this is what you call the checker board.

It is what you have in Sioux and what you have in some other places.

But the important thing, although this Court has repeatedly said that it abhors checker board jurisdiction, we have lived with it and we have lived with it comfortably in the state of South Dakota, with respect to these three counties since the turn of the century, and we have not had a problem.

It has never been up here before this Court before.

There has not been a prolific amount of litigation in the Court of Appeals or even in the Federal District Court.

I think all the cases that have ever been involved in a jurisdiction fight are cited in either the government’s brief, the tribe’s brief, or our brief, and there is very few of them; probably eight or nine in number, and there has never been a dispute, and we work comfortably with jurisdiction, very little…

Mr. Janklow, what percentage of the total area would you estimate is undisputed Indian country?

William J. Janklow:

In terms of the three counties, because I do not have figures for Todd…

Right, I am just talking about the three counties.

William J. Janklow:

In terms of a perspective, Todd County is a little better than 25 miles wide and 50 miles long.

This will be a close facsimile of what the size is, but it is approximately 10% of the land area, and Mellette, Tripp, and Gregory Counties are Indian trust lands, and that is all.

Approximately 10% of the population in Mellette, Tripp, and Gregory Counties are Indian people.

It is split as to where they live.

Some of them live on trust lands and some of them live on deeded lands.

The tribe has never, until 1972, even attempted to exercise jurisdiction.

William J. Janklow:

If for no other reason, I can tell you I lived on that Reservation for six years as Director of the OEO Legal Services.

I was the Chief of the legal services on the OEO program down there.

General, what about deeded land that is occupied by Indians?

William J. Janklow:

Deeded land in those three counties, the tribe has never exercised jurisdiction until…

Even though occupied by an Indian?

William J. Janklow:

Even though occupied an Indian, there has never been anything in the tribal Court.

There are thousands of divorce cases that had been handled, adoptions, guardianships, and probates.

The land figure that you gave me is allotted.

William J. Janklow:

It is allotted or Indian — I call it Indian trust, which would not only include allotments but also land that is not allotted, that is in an Indian’s name, I would include that in the total.

Is this where the tribe was initially?

William J. Janklow:

The original agency was Rosebud Agency.

Were they moved, were the Indians moved there from some other area or was this their ancestral home?

William J. Janklow:

The Eastern end of the Rosebud Reservation consisted of Brule Sioux, which was added to the Rosebud’s Reservation with their consent.

I do not know all that history, but I do know that they are not all Rosebuders, although there are all Rosebuders now.

But the tribe has never exercised jurisdiction and the federal government never has either in those areas.

So what we have in terms of, if you want to just talk in jurisdiction, 1151 takes care of it.

Its Subsection C, with respect to those individual pieces of Indian land and the three county areas, and its Subsection A, I believe, which is any land within the area of Todd County, whether it be deeded or non-deeded land.

So the tribes filed a lawsuit, and we are now here.

A couple of important characteristics of how we construe these things.

There are three basic cases that I think everybody conceives lead the way.

The first one is the decision in Seymour, the second one is the decision in Mattz, and the third one is the decision last year involving our state of South Dakota.

In Mattz and Seymour, both of them, this Court handed down a rule of construction of these Indian treaties and these Indian statutes that are past.

It said, you look on the face of the Act, and if it is not absolutely clear, if it is not explicitly clear from the face of the Act, you go to the legislative history and surrounding circumstances, and this Court did that in Mattz when it wrote the Mattz decision.

It found that the Act, there was some question about it, went behind the face of it.

As a matter of fact, they found there was no question about it, but still went behind the face of it, and used legislative history and surrounding circumstances to support the decision.

They did exactly the same thing in Dakota; in the Dakota decision, they also cited Seymour and Mattz again with approval.

What we have with respect to the Rosebud Sioux Tribe case is not unlike the case that was up here last year before you, and that is the Dakota case.

The language is the same in the Act, cede, sell, convey.

That is exactly what the other one hand.

There is only one difference between DeCoteau and this case.

William J. Janklow:

Even the school lands are there.

The only difference is that this is un sum certain and there is a great distinction being made about that.

In the Dakota case, the tribe was told and knew exactly what they would be paid for their land.

In this particular case, the tribe was told that they would be paid so much for the entry on the first so many days.

In other words, the best land would go first.

So it would be like $4.00, then $3.00 for everybody who came after that, and $2.00 for everybody who came after that.

Then no guarantee as to all of it being sold, that is this last paragraph.

The entire area really was not sold, was it?

William J. Janklow:

I think the figure was, it was asked to Mr. Sonosky, it is approximately 4,000 acres of this total huge mass, was returned in around 1934, in the 30s.

4,000 acres were not sold at that time?

William J. Janklow:

I think it is approximately that.

Now, I do not know.

William H. Rehnquist:

Those words you are referring to certainly did not mean that the entire area was sold and conveyed at that time.

William J. Janklow:

I do not follow your question, I am sorry Justice Rehnquist?

William H. Rehnquist:

What were you reading the words, that you just read?

William J. Janklow:

I did not read anything.

William H. Rehnquist:

Sold and convey…

3 (a).

William J. Janklow:

Oh, cede, grant and sell, is that what you mean?

3(a) of the petitioner’s brief, 3(a) of the tribe’s brief.

William J. Janklow:

Okay, that is first Act, the 1901 Act.

What area did that refer to?

William J. Janklow:

That referred to Gregory County.

Well, was there ever any land that was sold to somebody?

William J. Janklow:

To my knowledge, no land was returned in Gregory County.

Now, the one thing that you have to remember is…

The point you are making though is that those words — you say those words meant that there was sold to the United States the entire Gregory County, at that time.

William J. Janklow:

No, not sold to the United States.

We are not alleging that it was sold per se to the United States.

When was it sold, under those words?

William J. Janklow:

Under the agreement that was signed? As of the time the Congress passed the Act.

What we have in the Act, and it is really confusing because they went out and they entered into an agreement with the Indian people in 1901, and that was the first part, that is the part that talks about cede, grant, and sell.

The Indian people agreed and signed it by a three-fourths majority.

They came back and Congress did not buy it.

But the best thing I can do is draw your attention, there are three volumes of appendices, join appendices filed, plus we have our own that is filed with the Court, and it goes all through this exhaustively, there is an incredible amount of legislative history that has been able to be dug up.

As of the time the Act was passed that, that entire are was what, was ceded by the Indians?

William J. Janklow:

The Gregory Country area, that is correct.

At that time?

William J. Janklow:

At that particular time, but they kept it…

The entire are?

William J. Janklow:

No, in Gregory County, and not the entire area, sir, no sir, all the surplus and unallotted lands are what they gave up.

But also replete in there is there was a restoration to the demand.

As a result, the only thing that the Indian people kept were a lingering beneficial interest, and that is what is discussed — the government has discussed that, on what took place in 1934, and this Court has also addressed itself to that in the Ash Sheep case which this Court has previously handed down.

In the Ash Sheep case, they said that these kinds of things kept a lingering beneficial interest.

The one thing that is not yet been previously told to this Court, in 1938 the solicitor has handed out an opinion which is set forth as Document #59 in the appendices.

Byron R. White:

Well, for whom did the Indian cede the Gregory County in 1904?

William J. Janklow:

I do not want to back myself into a cession corner, because that is not the key question.

Mr. Justice White, the key question is whether or not the Reservation was disestablished, and that is always what this Court goes to.

You are relying rather heavily on the language, that you just did.

William J. Janklow:

Well, only because this Court said that language is precisely suited for cession in DeCoteau.

I am taking that exactly from what this Court said a year ago in DeCoteau.

I cannot find that language in the 1907 or the 1910 Act.

William J. Janklow:

It is not in the 1907 and 1910 Act, it is only in the 1904 Act.

And it is in the 1904 Act, not by anything signed by the Indians, but it is signed by Congress.

William J. Janklow:


Two things I would like to say to that sir…

Normally when a grantor sells something, he signs it.

Here it says, the said Indians do hereby cede, surrender, grant, and convey to the United States all their claim, right, title and so on, and that is enacted by Congress, that is not signed by the Indian.

There is quite a little difference between this and DeCoteau.

William J. Janklow:

There are two things I would like to draw to your attention to, sir.

William J. Janklow:

The first thing is, on Pages 41 of petitioner’s brief, and we agree, the 1904, 1907, and the 1910 Acts may use different words, but the Congress was intended to do the same thing.

They have the same force in effect.

We do not argue that Gregory, Tripp, and Mellette, or the 1904, the 1907, and the 1910 have the same affect.

The words I believe used by petitioner say they conceive the format is different, but not the substance.

The 1904, in legal effect the language is the same as the 1907 and 1910.

We agree with that.

Alright, now, specifically to get on to the 1904 Act, I think it is really important that we understand what happened.

In 1901, a Commissioner was sent out there.

He made an agreement with the Indian people for Gregory County.

Potter Stewart:

That was inspector McLaughlin?

William J. Janklow:

That was Inspector McLaughlin, that is correct Mr. Justice Stewart.

He came back.

When the Bill was submitted to Congress for approval, what happened was there was a huge fight that erupted, not a huge fight, but there was a disagreement in the Congress.

The key thing was several of the Eastern Congressmen were tired of giving free land to the homesteaders.

They wanted them to pay for it, and they were tired of the government paying the Indians for the land and then turning around and giving free homestead.

So they got into this issue, and this is where it all came to a head in America’s history; a free homestead versus pay homestead was over unfortunately the Rosebud Reservation.

So the Bill did not pass.

Then a Bill passed which provided, and I believe it was the next year or the year after — no, they got into the discussion on the homesteads, and they sent Inspector McLaughlin back out to the Rosebud again.

And he could not get three quarters of it.

William J. Janklow:

He did not get three quarters, but he got a majority at this particular time.

Three quarters was not required by Section 5 of the General Allotment Act.

Under a recent decision of this Court?

William J. Janklow:

That is correct.

But it was decided, it was required under the Act of 1889.

I mean the then recent decision.

William J. Janklow:

Then Lone Wolf came down.

The Lone Wolf decision came down in 1902, which came in right in between the time the Indian people first signed the Act and had the three-fourths signatures, and the next time around when they signed it in 1903 or 1904.

In the Lone Wolf decision, this Court very clearly took care of the problem of signatures being required for disestablishment of Reservations or anything else, because what you had in the Lone Wolf case was a place where they required three-fourths also by previous agreement, and the government did not get it, they only got the majority.

Congress passed an Act.

They went to the Supreme Court and this Court held that Congress had that plenary power, and that they did not have to stick to three-fourths, but they could use a majority.

By your hypothesis or under Lone Wolf, the fact that they got a majority here does not make any difference either if not one Indian had consented to it, Congress still would have had the authority.

William J. Janklow:

That is correct, Your Honor.

Nobody did consent to the 1907 and 1910, is that correct?

William J. Janklow:

At the time that, that happened in the Lone Wolf decision, they say that what you are dealing with is the plenary power of Congress.

So as a result, these people turned around — Lone Wolf said that Congress would not exercise this power that it had without using it in a wise way or a judicious way.

They sent McLaughlin back out there when they never had to.

He then obtained the majority of the signatures, fully explained in the Indian people and again, it is all in the appendices, the transcripts of just what Lone Wolf meant and the power of it, and the Congressional records and the House Reports and everything are replete with discussions of what Lone Wolf meant.

So everybody knew what Lone Wolf meant.

He came back and then they passed it based on the majority thing.

Now, with respect to 1907 and 1910, there was no agreement in 1910, but there were meetings with the Tribal Council, but at that point in time nobody was ever again signing agreement because of the Lone Wolf decision.

The Lone Wolf did away with that particular necessity.

You can go through the legislative history, and if you examine the government’s brief and you examine the tribe’s brief, you find criticisms of what went on in the Congress, but you cannot find any substantive legislative history.

There are hundreds of documents that pertain to it, that are both in the joint appendix as well as the individual appendix.

I draw your attention to the document at 629, I believe it is, Page 629 of the joint appendix, which is a House Report, which just lays the whole thing out.

There are about six pages there which just lays out in detail exactly what it was that was happening.

It lays out that these reservations were being disestablished.

Although I was asked the question before, the cession is not the key aspect, whether or not there was a cession frankly is not even relevant.

The question is what was Congress’ intent?

Did they intent to disestablish the Reservation? Because if the answer is no, we got three new counties in South Dakota that belong to the state.

The Rosebud Reservation has been quadrupled in size.

If the answer is yes, the Congress intended to disestablish the Reservation, then the answer is no.

We live with what we have lived with for the last 60 years.

So that is the key issue.

That is the crux of it.

That is what Mattz has taught us, and frankly, that is what DeCoteau has taught us.

They have laid down that particular criteria.

The uncertain sum in some arguments that has been raised, there is a lot of issue that because the Indians did not know ultimately what they would get that somehow this uncertain sum created — completely, substantively changed these types of arrangements.

It is not clear.

All the Congress was doing was changing the method in how people were going to be paid.

That is the only thing that Congress was doing, and they say that over and over and over again in these reports.

William J. Janklow:

They were tired of using taxpayer’s money.

They wanted the settlers to use their own money.

Mr. Janklow, isn’t there still another difference, during the period between the passage of the statute, say the 1904 Act, and the actual conveyance of real estate to a settler, who owned the real estate?

William J. Janklow:

I cannot tell you that there is any magical point in time.

The answer would have been perfectly clear under the contract as negotiated in 1901, the United States would have owned it, wouldn’t it?

William J. Janklow:

Under the contract in 1901?


William J. Janklow:

It is not unclear that at this point the federal government did.

I cannot answer that because the government obviously had a title to give away the settlers.

They did not get the title from an Indian.

They did get it from the federal government.

That is the ones who gave them, and there are lot…

Pursuant to the 1904 Act, the United States was the grantor of its own interest in the land?

William J. Janklow:

That is the ones that was handing them out.

They were signed by the President and there were issues they set pursuant to the General Homestead Act.

It is what every patent out there says.

So I cannot say whether or not, but that is — if you are familiar with the 1938, I cannot describe you any better than that 1938 Solicitor’s opinion, which does discuss this out of the Ash Sheep case, where it talks about whether or not this lingering beneficial interest, because he did not know if anybody was ever going to move on it and buy it, whether or not that is a crucial and an important aspect.

What they held is that, that was not the determining factor.

Whether or not there was a cession was not important, and whether or not the Reservation was disestablished or not, was not important.

That if there was a lingering beneficial interest that was not inconsistent with allowing the tribe to restore that to the areas, what would be outside of a diminished or reduced Indian Reservation, restoring those lands out in an area like that, and still going on with their business, like we had in the Rosebud Case.

That 1938 Solicitor’s opinion just lays that particular aspect out.

With respect to the Ash Sheep Case, the same thing is true, and I draw your attention to one thing in the Ash Sheep Case that involved a Reservation, which although it had a lingering beneficial interest, also disestablished part of that Reservation and created a new boundary, right on the face of the Act.

So there is an example of a place where we do have a situation where new boundaries were created on the face of the Act, and the Indians still kept a lingering beneficial interest in those lands, like we had in Mellette, Tripp, and Gregory Counties.

What happened to reservations that were established in part…?

William J. Janklow:

I do not know that there is — it could be one of two times.

Which one do you think?

William J. Janklow:

I think it is at the time that the Act of Congress passed, and that is what — the way it was explained to the Indian people, and it was also explained in Congress, but that the Indian people were allowed to continue to occupy it.

They have three separate partial disestablishments.

William J. Janklow:

That is correct.

You do not think that the determining time was when the land was sold to settlers?

William J. Janklow:

That was the other thing, it very well could be.

I honestly cannot say because…

The Court of Appeals held it forward.

William J. Janklow:

The Court of Appeals held that it all happened at one time.

Well, at three separate times.

William J. Janklow:

Right, but as to each half, it was instantaneous.

Three separate instances.

William J. Janklow:

But I do not want to put forward that position because you cannot tell whether it was then or when the settler took it.

Let us suppose it is very improbable that none of the land was ever sold, and the 1934 Act was never passed, and right now there would never have been any sale land, Nobody wanted it, except the Indians wanted it, they were living on it.

But under your position, the Reservation nevertheless, would have been disestablished back in 1904.

William J. Janklow:

That is just exactly what Congress said over and over and over in its Congressional record.

Over and over and over in the debates, over and over and over in the House Reports, there is just the voluminous stuff and it is replete with just exactly that.

That the only change — that they were not even thinking about whether or not…

What was that document, that concerning document…

William J. Janklow:

I think it is page 629 of…

What document is it?

William J. Janklow:

It is a House Report that was sent over to the Senate, explaining what it was in the 1904 Bill, 629.

We think it is that and the 1938 Solicitor’s opinion, which is found as Docket Number 59 in our blue state’s appendices, which is on Page 114.

Those are the two ones that I think explain that whole area that we have been talking about for the last several minutes.

As far as what words are used for disestablishment, if you look at the cases, you see that we have everything from the words, cede, sell, convey, disestablish, restore to the public domain, dispose, diminish, unfortunately Congress never used any one set of magical words.

That is why every time that this Court has been faced with this particular kind of question, whether it was Seymour, whether it was Mattz, whether it was DeCoteau, or now, that you have to go back and you have to look at the legislative history and the surrounding circumstances, as well as the act to figure it out.

What were the pages in the appendices?

William J. Janklow:

Page 629 in the brown appendix.

Yes, and I mean 629, and you say that is a, what?

William J. Janklow:

That is a House Report.

Committee Report?

William J. Janklow:

Yes, sir, I just remember reading House Report, I do not know if it is a committee or not, it is just House Report.

The other one is Document Number 59 on Page 114 of the blue appendix.

To also draw the Court’s attention to Pages 99 through about 105 in the brief, if you look at what is known as the Todd County documents, it really lays out what exactly all the understanding of the parties were.

Because what happened was, under Congress’ power to disestablish these Reservations, they could have always gone forward and disestablished the Reservation.

William J. Janklow:

They went back for 1907.

They went back for 1910.

The records are replete with the Indian people saying look, you came once, we gave you Gregory County, now you are back here for more land.

This is in the meetings with the council, and there are transcripts on these that are all through the records that are before you.

Then he comes back in 1910 and they say look, we gave you Gregory County and Tripp County, now our Reservation is half the size it used to be.

He is telling them look, when the government wants it, they are going to get it, let us talk about.

So they again agree, and the way it goes.

Then in 1910, he goes back and he tries to take Tripp County.

He tries to open Tripp County, and this is again the famous Inspector McLaughlin, the great land grabber, because he is all over Western United States taking land from everybody, especially if they are Indian.

He is back there again negotiating, and he happened to speak Sioux.

At this time the tribe put its foot down and they said, no more, we gave you almost all of our Reservation, we gave you three-fourths of it, we only have this small corner left.

All this is in the record.

That is all we have left of our Reservation, please do not take that from us.

He went back although he had been sent out to negotiate another agreement, he went back to Washington and told that to the Congress, told that to the Interior Department, and the Interior Department finally suggested to Congress they not open up and affect Todd County in any way.

So there was no change.

But as far as what the understanding of the parties were, there has never been a misunderstanding of the parties; be it the federal government, the tribe, or the state of South Dakota, until 1972.

After the decision, frankly, the new town decision, which was an Eight Circuit decision up in North Dakota, everything really changed in the jurisdiction in South Dakota.

We have had litigation after litigation, with respect to every one of our Reservations.

DeCoteau was first, these ones here, the Court has not decided whether or not it is going to take certiorari on “which is the next Reservation over.”

Courts in counties working its way up through the Courts.

All of them based upon the fact that what went on with respect to the new town decision in the Eight Circuit.

That is what started it all.

Did that case came here?

William J. Janklow:

Which one?

New Town.

William J. Janklow:

New Town did not come here.

There had been other substantive decisions that have.

This one has, and the other one, (Inaudible) has, and Cook has been decided by the Eight Circuit, and a petition for cert has been requested and I think it is nothing, no action has ever been taken on it.

Todd Counties had other action taken as Justice knows, we had the Beardslee (ph) decision, where it talked about disestablishment in that particular case, where I believe, the exact language is, where it discusses the areas other than Todd County and the Rosebud and said a disestablished portion of the Reservation, however, that disestablishment may have been affected.

This is the decision that goes way back into the 60s, into the middle 60s.

William J. Janklow:

There has never been any argument, disagreement, or misunderstanding by anybody until the policy changes.

Interestingly enough, we are here today against the United States of America.

In 1973, with a Reservation that has got exactly the same language as one of these Acts, exactly the same language.

United States ex rel. Condon v. Erickson, which is another Eight Circuit decision, they are in there amicus at on our side, on the state of South Dakota’s side.

On the basis of the New Town decision, the Eight Circuit turns around and says that the government’s position was wrong.

Now they are in here sounding like — since time in memorial, they have taken the position that — in opposition to the state of South Dakota.

In the La Plant case that the Eight Circuit Court of Appeals decided many, many years ago, 20 or 30 years ago, I cannot remember the date, again, the federal government came in and took the position that those Reservations have been disestablished.

But they are coming and arguing now in 1975 that this has always been the consistent policy of the federal government’s since then.

Unfortunately, we have to look back and see what happened at the turn of the century because that is what controls.

It is not what action, who has been exercising jurisdiction since then, and we know that.

What controls is what happened at the turn of the century.

Unfortunately, it is people’s lives that are affected.

90% of those people out there are non-Indians, and I am not impugning any bad motives at that time, and I do not suggest that it was the White people who do not like Indians or who want to harass Indians.

In the words of Mr. Sonosky when he started, harassment in these particular counties, these same forces that tried to stake state jurisdiction or behind anything, those who have not been the problems that we have had.

What we need frankly from this Court, what we need from the government is a consistent policy, because what happens here and what happens in the Congress affects us in our daily lives.

People have investments out there, both Indian and non-Indian.

People have their families out there, both Indian and non-Indian.

We cannot continuously be trading these counties back and forth, or changing our position every 10, 15, or 20 years, and expect there will ever to be a lack of problems out there in that particular country.

They can talk all they want about the problems that we had.

But this is the same state that had set up a state Indian task force that involves members of that tribe.

Believe it or not, we have our own negotiating committee on the state level, the only one in the union to sit down with these tribes and try to negotiate these problems out, but we cannot do it if the policy of the federal government is always going to change.

The important thing is, let us see exactly what Congress intended at the turn of the century.

Sum certain is not an important aspect.

It maybe important, as it frankly looks like it might have been in DeCoteau, until you get the look at the Rosebud documents.

Unfortunately, Rosebud lays it all out as to — what to some certain aspect was it.

All it was was a vehicle to facilitate the change.

They say that over and over and over, and not even the Indian people objected to that, at the time that these conversations went on.

Everybody understood what happened.

I understand the Court wants to go home, I have got time, but I would not use it.

Unless there is any question, that is all that I have.

William J. Janklow:

Thank you very much.

Warren E. Burger:

Thank you General.

Mr. Sonosky, do you have anything further, you have a few minutes left.

Marvin J. Sonosky:

I have listened to the Attorney General’s conversation, and much of it is a certiorari, not supported by the record, not supported in fact.

I would indulge the Court not to give heed to these White statements that are being made.

We do have a principle established, and it is DeCoteau, and it is Mattz, and it is Seymour, and if those principles do not control, then every one of these 20 Reservations that we found with identical statutes to Rosebud, is going to have to be decided on the basis of things that are extrinsic to this statute.

I did not hear the Attorney General explain to the Court what that last of our statutes meant, where the United States said it was not a purchaser.

You cannot avoid, you cannot get title if you do not buy it, and that includes the United States.

Nor did the Court of Appeals touched that statute, nor did it touch that section, nor did the District Court.

When the Court looks, the reference was made here to a 1903 Agreement, they did go back and get an agreement from the Indians in 1903, and got a majority vote.

But significantly, Congress did not put that in the 1904 Act, the one they put in the 1904 Act was the one where they got the three-fourths majority, because that was the only one that was valid.

Lone Wolf simply says that Congress has the constitutional power to do what it wants with Indian land without Indian’s consent.

Lone Wolf does not substitute a majority for three-fourths.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.