South Dakota v. Yankton Sioux Tribe

PETITIONER:South Dakota
RESPONDENT:Yankton Sioux Tribe
LOCATION:United States Department of State

DOCKET NO.: 96-1581
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 522 US 329 (1998)
ARGUED: Dec 08, 1997
DECIDED: Jan 26, 1998

ADVOCATES:
Barbara B. McDowell – Argued the cause for the United States, as amicus curiae, by special leave of court, supporting the respondents
James G. Abourezk – Argued the cause for the respondents
Mark W. Barnett – Argued the cause for the petitioner

Facts of the case

An 1858 Treaty between the United States and the Yankton Tribe established the Yankton Sioux Reservation in South Dakota. The 1887 Dawes Act permitted the Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. In 1892, pursuant to the Dawes Act, an agreement between the Tribe and the Government, ratified in 1894, provided that nothing “shall be construed to abrogate the [1858] treaty.” In 1992, the Southern Missouri Recycling and Waste Management District acquired land for a solid waste disposal facility that lies on unallotted, non-Indian fee land, but falls within the reservation’s original 1858 boundaries. In 1994, the Tribe filed suit to enjoin construction. Ultimately, the District Court declined to enjoin construction of the landfill, but granted a declaratory judgment that the landfill lies within the Yankton Sioux Reservation, where federal environmental regulations apply. The Court of Appeals affirmed.

Question

Did Congress diminish the boundaries of the Yankton Sioux Reservation in South Dakota in an 1894 statute that ratified an agreement pursuant to the Dawes Act, which permitted the Government to open reservation land to non-Indian settlement?

William H. Rehnquist:

We’ll hear argument now in No. 96-1581, South Dakota v. Yankton Sioux Tribe.

General Barnett.

Mark W. Barnett:

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

The case that is before the Court today involves the question of whether an 1894 Act of Congress had the intent and the effect of disestablishing the Yankton Sioux Reservation.

The State submits that the answer is conclusively yes.

And we base that “yes” on several factors, the first and not least of which is the use of “cession and sum certain” language in the operative… or terms… in the operative section of the agreement and the ratifying Act.

That particular “cession and sum certain”, the cession, sale, relinquishment and conveyance of all interests in and to the unalloted land, together with the sum certain, has been held by this Court to create an almost insurmountable presumption, or a nearly conclusive presumption.

And we would submit to the Court that that, in combination with the immediate uptake of jurisdiction by the State of South Dakota in 1895, and continuously uncontested State jurisdiction during the next 100 years, and throwing that together with the fact that that jurisdiction was exercised without objection by the Tribe and without an attempt to exercise jurisdiction by the Tribe or the Federal Government throughout those 100 years, and that’s not merely our contention but that also is the observation… excuse me… of both the Eighth Circuit and the… both the majority and dissenting opinion, as well as the opinion of the unanimous State of South Dakota Supreme Court.

And then, add into that, as a method of telling us what everybody understood at the time that this Act was passed, pursuant to the agreement with the Yankton Tribe, was what I will call the immediate wholesale settlement of the area by homesteaders, or what the District Court referred to as the rapid settlement and the loss… the quick loss of Indian character in this area, which would suggest, at least to the State, that that would suggest disestablishment.

We also would submit to you that additional–

Ruth Bader Ginsburg:

May I ask you, General Barnett, you use the word “disestablishment”, but as I read particularly Judge Magill’s decision, his dissenting opinion, he’s very careful to speak always about diminishing.

And you seem to use those words as though they mean the same thing.

Mark W. Barnett:

–Your Honor, I believe that diminishment probably should be read to suggest a case more like Rosebud v. Kneip, where the Court said that as to several counties, the reservation was disestablished, but it still left one county with a compact square of reservation.

And so there was still actually 18 U.S.C., 1151(a)-type reservation country out there, but it was diminished in size.

The case that we have here today… and I think the parties would agree… that the case we are doing today is disestablishment, just like the DeCoteau case, where the Lake Traverse Reservation was found by this Court to be disestablished, meaning there was still no 1151-type–1151(a)-type reservation out there.

I… I might add, Your Honor, that diminishment and disestablishment at one time were probably not terms of art.

In our view, they are now.

And we are, I think, today here litigating disestablishment.

Ruth Bader Ginsburg:

Even though Judge Magill said that he thought that the District Court erred in holding that the reservation had not been diminished?

Mark W. Barnett:

Yes.

And I… and I do not believe, from reading all of Judge Magill’s opinion, that he’s trying to suggest that some 1151(a)-type reservation still existed after 1894.

I think, to be honest, I would suggest to you that… that he was probably using diminishment and disestablishment interchangeably, and that has happened in the history of the… of the court system in other cases as well.

Returning for a moment, if I may, to the settlement history that took place out there… and the reason I bring it up is because this Court, on other occasions, has looked to the settlement history immediately after the passage of the Opening Act to help it determine what did everybody understand at the time.

And in this case, as was suggested by the Court of Claims in 1980… or as was found by that Court… within 3 years of the opening of this reservation, more than 100,000 of these opened acres had been sold.

Within 5 years, 90 percent had been sold.

And as you will see at joint appendix 475, by 1913, in addition to the ceded lands which had been put up for settlement by the homesteaders, more than twothirds of the allotted lands left to the Indians in 1894 had also been sold.

And so–

Sandra Day O’Connor:

General Barnett, was the particular tract of land that we’re concerned with in this case part of the land that was restored to the public domain by the 1892 agreement?

Mark W. Barnett:

–Yes, Your Honor, we do contend that it was restored to the public domain.

And by way of explanation, at the time of trial, 90 percent of all of the land in what we call the disputed area, 90 percent of that former reservation area was in nonIndian hands.

Mark W. Barnett:

Which has been something that the Court has noted in its prior cases.

And more than twothirds, or 68 percent, of the population was nonIndian, as found by the Federal census.

Anthony M. Kennedy:

So this parcel was not allotted land that was later alienated?

Mark W. Barnett:

168,000 acres of the 430… 168,000 were immediately ceded to the Federal Government, and then, then, as I said, began a rapid process of sale.

And then the allotments, which were the balance of the 430, were, in large part, sold in the ensuing years.

In about the next 15 or 20 years, a great majority of the allotments were sold.

Sandra Day O’Connor:

Yeah, we were asking about this particular tract of land.

Yes.

And its history.

This… this is the site of a proposed waste site or something.

Mark W. Barnett:

Oh, okay.

I’m sorry.

Sandra Day O’Connor:

And we’re talking about a particular tract of land.

Correct.

Mark W. Barnett:

Excuse me, Your Honor.

Sandra Day O’Connor:

Now, was that land that was directly restored to the public domain?

Was it allotted and then later resold?

What was the history of this tract?

Mark W. Barnett:

It was… it was… it is now and was at the time of trial fee land.

It was issued by a government patent, issued by the Federal Government.

I don’t know the exact year, but I’m going to suggest in the late 1800’s.

And I can find that fact in time for rebuttal.

But it was issued in… in fee patent by the Federal Government, and used actually the words “public domain” in that fee patent.

And so–

Anthony M. Kennedy:

What… that was before the 1890… 1892 agreement, then?

Mark W. Barnett:

–That I cannot answer.

I’d be guessing, Your Honor.

I do have that information, but I don’t have it at my fingertips.

Sandra Day O’Connor:

The Respondents rely on a savings clause in Article XVIII, is it?

Mark W. Barnett:

That’s correct, Your Honor.

Sandra Day O’Connor:

Are you going to address that?

Mark W. Barnett:

Yes, Your Honor.

Sandra Day O’Connor:

Because it is language that is different than that which we have seen in other treaties or agreements.

Mark W. Barnett:

Yes, Your Honor.

The… as we look at Article XVIII, it seems to the State that the one thing that you cannot do with Article XVIII is read it literally.

Because if you read it literally, in the strict literal interpretation, then it says that nothing in this Act in effect… or in agreement… in 1892 actually happened.

The sale did not happen.

The white homesteaders could not move in.

Part of the 1858 treaty forbade settlers or other whites from coming onto the reservation, with certain narrow exceptions.

And that was in 1858.

By contrast, in the 1892, and in the Act ratifying it, the exact opposite purpose was there, that… that we are going to have whites come in and settle this area.

And… and so, when we try to interpret what Article XVIII says, I think, first, that the… and I suspect the parties would even agree… it cannot be read literally.

Because then you get absurd results.

The second thing that I would observe about Article XVIII is that if you read the first sentence of Article XVIII, it says Nothing in this treaty abrogates the 1858 treaty… or nothing in this agreement.

If that’s true, all the rest of Article XVIII is surplus.

If you go to the first phrase in the second sentence, it repeats that phrase, that… that essential statement.

And if that’s true, what came before and what came after is surpluses.

And so it seems to me that it can’t be read literally.

And… and that takes us to the next point, which is, how does the Federal Government propose to us that it should… or to you… that it should be read?

And if I understand their argument in their briefs correctly, they’re suggesting that you need to read into Article XVIII the phrase “not inconsistent”.

And they go to Article I and II and suggest that I and II is not really a cession and sum certain, contrary to its express language, but is… and, in fact, I would submit to you they are asking you to read out cession and sum certain.

And take that out, and then construe what is left.

And… and I don’t think that that is the appropriate way to handle it.

And, in fact, I would… I would suggest that the Klamath case had an analogous situation, where there was a savings clause in that case, which suggested that nothing in the… in the more modern agreement was to… was to take away rights they had preserved in the past.

But as the Klamath court pointed out, the later agreement constituted a cession and sum certain, and that the Klamath Tribe could not silently preserve hunting and fishing rights through a general… the general language of a savings clause.

Now, I would also submit to the Court that when we look at 18, at the tail end of this agreement, or when you look at it… excuse me… I would suggest to you that it is important that that is not the operative language of the… of the agreement or the Act.

And, in fact, I would… I would call your attention to the Hagen case, where the Court said that, in observing on the Solem case, observed that the use of the words “public domain” in the Solem case were not found in the operative language of the Act.

And since they were not found in the operative language, they had, I think, secondary importance.

Or as the Court–

Antonin Scalia:

Why… why isn’t this in the operative language?

Mark W. Barnett:

–In the 1892?

Antonin Scalia:

Right.

Mark W. Barnett:

Because I don’t think they intended to disestablish… excuse me… I think they intended to disestablish, and I don’t think that… that they intended Article XVIII to… to change what the terms or the operative intent of the Act were.

I think that Article XVIII was there to reassure the Tribe that they would receive the monies and the claims that they felt were due them… the annuities.

Ruth Bader Ginsburg:

Then why didn’t they just say that and nothing else?

Mark W. Barnett:

Well, I think, as one justice said… or judge said… at the Eighth Circuit, lawyers repeat themselves.

And I suspect that… that probably what was happening was the Indians were concerned that… that the Federal Government was not going to live up to its obligations, and particularly when they understood they were selling the… the remaining reservation that they had received in the 1858 treaty, it seems to me that a fair question that would have been in the Indians minds was Are you going to abrogate that portion of the 1858 treaty from which our annuities flow?

And the answer would be No, we are not going to abrogate the 1858 treaty, and you will get your annuities.

And, indeed, if you look at the report that the commissioner gave to the State of Interior, who then filed with the Congress, in 1893, what you will see is a… is a lengthy description in the record about what all of the Indians concerns were and how these were resolved in the various articles of the agreement.

And so there was a long discussion about Pipestone Quarry and a long discussion about scout claims for Indians who had served as scouts and felt they still had money owing.

A lot of discussion about their concerns.

No discussion about preserving boundaries or authority, in the first place.

And in the second place, when we come to… to what the negotiator is telling Congress the Indians feel about 18, it gets one sentence, and one sentence only in the record.

And what he says is… with regard to 18, his comment is The Treaty of 1858 is not abrogated and the Indians shall get their annuities.

And so that suggests to me that… that if the Tribe really did think and believe that they were going to preserve their boundaries and their authority, number one, that’s a glaring conflict with the cession and sum certain language; and, number two, is completely unsupported in the congressional and in the negotiating record.

John Paul Stevens:

May I ask this question about Article I and… and also Justice Ginsburg’s question of distinction between dis… disestablishment and… and diminishment.

That when you say… when the sentence says they cede, and so forth and so on, their interest in and all the unalloted lands within the limits of the reservation… set apart… doesn’t that kind of convey a message… I don’t know… if you don’t know the geography… that there’s some un… unalloted lands within the limits of the reservation to which this agreement applies and there’s additional land in the… in the reservation that’s unaffected by this?

Mark W. Barnett:

Well, I read that reference as a geographical reference.

John Paul Stevens:

Yes.

Mark W. Barnett:

And… and… and through… and the use of the phrase “within the reservation”–

Right.

Mark W. Barnett:

–does not suggest to us… given the fact that it’s right in a cession and sum certain does not suggest to us that a reservation is going to continue.

It is simply a reference to what area it is that we are ceding and disestablishing.

And I would call your attention to the DeCoteau case, with the Lake Traverse Sissetons and Titowan Tribe, identical Article I and II, word for word.

And it used the same phrase, “within the reservation”.

And yet this Court held, as you know, that that reservation was disestablished.

And I would also submit to you, Your Honor, that… that this is consistent with what the Indians have understood for the first 100 years, as evidenced by their own constitutions, particularly the 1962 constitution, which tells us something about what the Indians felt.

In 1962, the territory that they claimed… this is in your joint appendix at 499… the only territory they claim jurisdiction over in their own constitution was, quote, tribal lands now owned by the tribe, end quote.

Which we think is a lot more consistent than what is–

Stephen G. Breyer:

But how do you… but how do you… what’s your theory of how the reservation becomes disestablished?

Stephen G. Breyer:

That is, I take it they cede 200,000 acres of unalloted lands.

And you’re arguing those lands are no longer within the reservation?

Mark W. Barnett:

–Yes.

Stephen G. Breyer:

You’re not… all right.

They’re subject to the jurisdiction of the State then?

Mark W. Barnett:

Correct.

Stephen G. Breyer:

All right.

And the remaining 260,000 acres of allotted land?

Mark W. Barnett:

We are also arguing that–

Stephen G. Breyer:

Now, what is it that… that changes the status of the allotted land in your theory?

Mark W. Barnett:

–I believe that we are adhering to the teaching of the DeCoteau case, where the DeCoteau case, at 420 U.S., 446, in footnote 2, talks about when you cede the authority, the governmental authority, that you have over an area… and… or, in this case, to use the exact language… cede all interest… with that goes the authority not just over the immediately ceded, but in the entire region.

And, indeed, in the DeCoteau case, the Court said that what was intended to be left by Congress was the allotted lands… the allotted and trust lands.

And under the Pelican case and under 18 U.S.C., 1151(a), (b) and (c), what we know today is that when there is a cession and sum certain, the authority is lost.

Stephen G. Breyer:

See, the part that I’m having difficulty with is imagine a big square, A, B, C, and D, four subsquares within the big square.

Mark W. Barnett:

Yes.

Stephen G. Breyer:

Now, suppose that a particular treaty said,

“We cede subsquares C and D. We keep A and B.. “

Well, if that’s what it said, wouldn’t you think the reservation then consisted of A and B?

Mark W. Barnett:

We subscribe to the DeCoteau logic, that… that, I think, suggested that Congress’ intent was that the cession means all authority–

Stephen G. Breyer:

So, if… in your view, if… if it’s A, B, C, and D, and they say, We cede… we sell, cede, get rid of and absolutely never want to hear again of subsquares C and D, you’re saying, when they did that, they’ve also destroyed the reservation as to A and B automatically.

And I… that’s… that’s odd.

Mark W. Barnett:

–What was lost at the time was 1151(a)-type jurisdiction.

And to go back to the Solem case, the common notion at that time, in those years, was that tribal… tribal ownership was synonymous with tribal authority.

And so, then, when lands went out of tribal ownership, they lost that authority.

Stephen G. Breyer:

But I’m thinking of the part that was left in tribal ownership.

Mark W. Barnett:

Yes.

And… and… and my point, Your Honor, is that then, as those allotted lands are alienated, the Indian title becomes extinguished.

To use the exact language of 18 U.S.C., 1151(c), the Indian title is extinguished.

And at that time, under the DeCoteau case and under a long line of cases in the lower Federal courts, as well as, I think, the… the cases from this Court, then that is… that also loses its status as–

Stephen G. Breyer:

But they keep their tribal status as to the little bits that they keep, that they don’t… see, what I’m driving at is I took… take it that Felix Cohen thought that they must have been left with at least some jurisdiction in respect to little bits of territory that they, for example, kept completely.

Stephen G. Breyer:

And those are scattered throughout the whole area.

And, therefore, it wouldn’t be feasible to administer little scattered bits, bit by bit.

And, therefore, they must have intended to keep the whole area.

Mark W. Barnett:

–Well, I think… and that’s a reference to the 1941 Cohen opinion… but let me observe that even Felix Cohen, as an advocate and as a, I believe, Acting Solicitor, even he did not base his opinion on Article XVIII when he… when he reviewed this.

Secondly, the very next year, he offered the Perrin case as authority for the proposition that the tribes… that… that this was now no longer reservation land.

And so that certainly was an indication.

But perhaps a better indication would be to… to look at how did the Federal Government and the Tribe view this very question.

Because on all of those lands which were allotted and then later alienated… almost all of them by 1913… we’ve been out since 1913… or in all of those years… exercising jurisdiction, without contest or objection from the Tribe until about 3 years ago.

And then you look at Felix Cohen issued his opinion in 1941.

And if that was not a wakeup call to the Federal Government and the Tribe that maybe you’ve got more jurisdiction on those lands which once were allotted, certainly Congress’ enactment in 1948… if this was still all reservation, both the original cession land and the allotted lands that were alienated… that should have been a wakeup call.

And still we did not see the Federal Government.

And even as late as 1985, the Federal Government was arguing in the Eighty Circuit Court of Appeals that… or suggesting… that this reservation in fact was diminished.

So–

David H. Souter:

Help… help me out, will you, on… on the… on the… the… the relationship between the cession language and the particular parcels involved.

The cession language clearly referred to the lands conveyed to the United States, which were then later conveyed out by the United States.

Did the cession language refer to… to lands which had already been allotted but which were not at that point, in 1892, conveyed to the United States?

Mark W. Barnett:

–It… it used the words “all unalloted land”.

Now, there are–

David H. Souter:

So, as to the allotted land, the cession language did not apply?

Mark W. Barnett:

–I think it has an effect.

It applies–

David H. Souter:

But it didn’t apply.

I… I don’t… I just want to make sure that I understand the way the terms were used.

Then we get to the legal effect of it.

I take it that in terms of… of the… the literal statement made, the language employing the term “cession” did not, by its terms, apply to… to lands which had previously been allotted?

Mark W. Barnett:

–I would agree.

David H. Souter:

So that your argument there is not that the jurisdiction was lost by the cession language as such, but by the application of some other rule… and I think it’s the some other rule that I’m not clear about.

Mark W. Barnett:

Well, I think it’s a reflection, Your Honor, of when we look at 1151(a), (b) and (c), those are a codification of law that had been developing ever since the… I believe the Bates v. Clark case back in the 1870’s.

And I think what the courts have said as they’ve looked at this question is, is that, did Congress intend to disestablish the reservation?

And if it did intend to disestablish the reservation, then the courts have been uniform, they have been uniform in concluding that not only is there a loss of authority or jurisdiction as to the lands immediately ceded, but they are also taking the position… and this is consistent with the philosophy of the Allotment Act, the… in the Yakima v. Yakima Indian Nation case… the court has expressed, in Justice Scalia’s writings… talks about the policy of the Allotment Act.

David H. Souter:

Mmmhmm.

Mark W. Barnett:

And the… the… and I think you have to read that within… or as a historical context throughout the late 1800’s and into the first decade of the… of the 1900’s.

And that is that the… the… the goal and the purpose of these cession and sum certain cases, the goal of Congress was to erase the boundaries–

David H. Souter:

Oh, I will grant you that.

I don’t think there’s any… any doubt in… at least in my mind about that.

But I take it that the… the… the construction that you are arguing for would work this way Let’s take Justice Breyer’s example and… and instead of having the four quadrants, A, B, C, and D, let’s assume that there was 1 acre in quadrant D. And the Tribe had made a… an agreement with the United States, using the same language here, ceding the 1 acre.

I take it on your argument the entire reservation would be disestablished as a legal consequence of that; is that correct?

Mark W. Barnett:

–I would… that would certainly be a more difficult case.

David H. Souter:

But that, theoretically, would be the application of your rule?

Mark W. Barnett:

Theoretically… yes, theoretically, that’s correct, if… and I… and I… I have to add an “if”, based on the Hagen teaching… which is look at all of the circumstances.

If, in the operative language of the Act, which was the case here, “cession and sum certain”, if that language is used, and if from all of the other circumstances that apply… the rapid settlement, the uptake of jurisdiction–

David H. Souter:

Yeah, but this would have been rapid settlement of 1 acre.

Mark W. Barnett:

–Okay.

Well, and so yours is a more difficult case, obviously.

This was only–

Antonin Scalia:

Well, can… can I ask about this hypothetical.

I assume this 1 acre is the only acre that is… is not previously allotted.

All the rest is allotted lands.

Is that how you understood the hypothetical?

Mark W. Barnett:

–Yes.

Antonin Scalia:

Okay.

So… so the Tribe has given away all of its unalloted portion in the reservation?

Mark W. Barnett:

Yes.

And… and, to go back to the–

David H. Souter:

But the allotted portions are to members of the Tribe?

Mark W. Barnett:

–Understood.

Yeah.

Mark W. Barnett:

Yes, Your Honor.

And… and to go back to what DeCoteau tells us, that that cession and sum certain is conveying governmental authority, and it is eliminating the boundaries in the entire quadrant.

And what is left is the allotments which… and the dependent Indian communities.

Mark W. Barnett:

And so we are not contesting today that we have jurisdiction over that 9 percent.

We’re suggesting we have 1151(a) jurisdiction over the 90 percent that is not in Indian hands.

Sandra Day O’Connor:

Well, I’m troubled by why we should answer that broad question.

We’re dealing with one waste site on some kind of tract of land.

And you can’t even tell us the history of that particular tract.

So, I mean, why doesn’t… why don’t we just answer the question as to that and nothing else?

Mark W. Barnett:

To the best of my knowledge, Your Honor, that tract has never been allotted lands.

But to say… but I would have to respectfully disagree with the Justice that we are not simply arguing over that one tract.

Because that part is… whether or not there is going to be a site there is not on appeal here.

What’s on appeal is the District Judge’s opinion that there is still… that… that broad boundaries are out there which create 1151(a) jurisdiction in the entire region, including the 90 percent.

And… and let me just close so I can reserve a little bit of time.

I would suggest to you this If the Federal Government and the Tribe read this Act the way they do now, where have they been?

If it could be easily and reasonably read that way, why wasn’t it?

Thank you.

William H. Rehnquist:

Thank you, General Barnett.

Mr. Abourezk.

James G. Abourezk:

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

In the 1858 treaty… and I’d like to go back to that, if I may… the Tribe gave up 11 million acres of land to the United States Government.

These were enormous property rights and sovereignty rights that they bargained away in exchange for a 430,000-acre homeland, a reservation that they believed was going to be their permanent home in perpetuity.

They… they also got annuities.

They got some cash… I think 1.6 million dollars.

But this 430,000 acres was their land that they wanted to retain the Indian character.

They wanted to retain this land forever.

And when the government came along, after the allotments in 1892, and said we want to buy what’s left over from you, the surplus lands, the Tribe held on so dearly to this 1858 treaty, to their boundaries, to the reservation and their annuities that they refused actually to sign the 1892 agreement until the Federal Government said, okay, we’re going to give you Article XVIII, we’ll give you school lands, we’ll give you the liquor provision that you’ve asked for.

These were things demanded by the Tribe.

And they got them.

And, as you know, they were handed a form agreement by the government, the Tribe was, that had actually six… six articles in it.

And everything else was tagged on… in… insisted upon by the Tribe.

Now, the State has been arguing disestablishment and diminishment.

And they use the terms interchangeably.

James G. Abourezk:

They have in their briefs.

And what they’re really asking for is not just diminishment, which would be the case Justice Breyer brought up, that would be carving out a discrete portion or a discrete parcel of the reservation and saying, okay, this is now no longer here, so the reservation boundaries are diminished.

No, what the State is asking for… and I think it’s pretty clear in their… in their writings… is termination, total termination of the reservation altogether.

Antonin Scalia:

As far as this parcel at issue here is concerned, does it make any difference?

James G. Abourezk:

In what… in what regard, Justice Scalia?

Antonin Scalia:

Even if it is only a diminishment rather than a disestablishment, wouldn’t the parcel here be in the portion that was diminished… that is, it was taken away from the Tribe?

James G. Abourezk:

Yes, it would be.

Although the reason you can’t really argue diminishment in this respect… and that’s why they don’t really say diminishment… is that the parcels were checkerboarded all the way… the allotment parcels are checkerboarded all the way through, as well as the ceded portions.

They’re everywhere within the southern half of Charles Mix County.

Anthony M. Kennedy:

So then it has to be disestablishment or nothing?

James G. Abourezk:

Or nothing.

That’s what they’re asking for.

Because you can’t really diminish that reservation.

Anthony M. Kennedy:

Well, but then do you agree with the theory that it has to be… you would say nothing and they would say disestablishment?

James G. Abourezk:

Precisely.

Stephen G. Breyer:

Why… why couldn’t you, even if it was a checkerboard?

James G. Abourezk:

Well, it would–

Stephen G. Breyer:

Why do we have to reach that question–

James G. Abourezk:

–I think it was one… this Court at one point said that if that were the case… first of all, it’s looked upon with disfavor; but, secondly, they would say law enforcement people would have to have a map to decide who they can arrest and where.

I think it would be very difficult to leave a checkerboard reservation.

Stephen G. Breyer:

–Do you… do you think… what is the practical consequence of the… of… of this case, one way or the other?

That is, I take it there are a lot of towns in this area that are not Indian towns.

They’re… they’re… they’re all the descendants of the settlers or whatever.

So there are quite… there are several towns in there, and people have been treating it as part of South Dakota.

Now, if you win this case, what happens to those towns?

We’re not talking about giving land back to the Tribe.

We’re talking about jurisdiction and what laws apply, is that right?

James G. Abourezk:

Yes.

Absolutely.

Stephen G. Breyer:

Yes.

Stephen G. Breyer:

So how does it work?

Do the towns suddenly discover they don’t have judges, that they don’t have… how does this… what… what turns on this?

James G. Abourezk:

Well, that would never happen.

Stephen G. Breyer:

Yeah.

James G. Abourezk:

First of all, the Federal Government and the Tribe have been exercising jurisdiction ever since the Eighth Circuit opinion.

And the State now cannot arrest Indians on Indian land within the boundaries of the reservation.

If we were to win this… if the Tribe were to win the case, really nothing would change.

It would be such a minimal change that it wouldn’t–

Stephen G. Breyer:

What is the jurisdiction in respect to those who are not members of the Tribe who are in this territory?

Do they get to vote?

I mean, who do they vote for?

James G. Abourezk:

–Oh, of course, yes.

Yes.

Stephen G. Breyer:

Do they have town councils?

James G. Abourezk:

Yes.

Stephen G. Breyer:

What government runs–

James G. Abourezk:

There’s a county government.

There are… there are city govern… town governments in each one of these towns.

Anthony M. Kennedy:

–Well, isn’t this–

–Under the–

–if… if you would win the case, just continuing with Justice Breyer’s line of examination, would the Federal Government not then supplant the State with reference–

James G. Abourezk:

Only… only within the boundaries of the reservation and only with regard to Indian defendants in criminal cases.

Stephen G. Breyer:

–So in the nonIndian defendants, in the… in the ones… people, I’m thinking, who are not Indians, they have towns and there are some laws.

James G. Abourezk:

Yes.

Stephen G. Breyer:

And rules.

And… and there… there are like judges and mayors and… what rules apply to elect all those people?

Who… who–

James G. Abourezk:

The normal rules of South Dakota–

Stephen G. Breyer:

–Of South Dakota?

James G. Abourezk:

–South Dakota.

Stephen G. Breyer:

Why do South Dakota law apply if it’s within the bounds of a reservation?

Is it that in reservations normally the law of the State applies?

James G. Abourezk:

Sorry, say that last word again?

Stephen G. Breyer:

Why do… is it… what… I’m just missing a very basic hornbook point probably.

But in a reservation, where there are groups of people who are not members of the Tribe, what law applies to them?

James G. Abourezk:

South Dakota law.

Stephen G. Breyer:

The State laws apply?

James G. Abourezk:

That’s right.

The only exception, Justice Breyer, is if a nonIndian were to commit a crime against an Indian within the boundaries of the reservation, the Federal courts would take jurisdiction over that.

William H. Rehnquist:

Well, what… what about civil jurisdiction, Mr. Abourezk?

We had an A-1 Contracting case here last year, where the… there was debate as to whether the tribal law and tribal courts would rule on an… on an automobile accident.

Now, if… if the Eighth Circuit is upheld here, won’t that same condition obtain on the Yankton Sioux Reservation?

James G. Abourezk:

Yes.

The… the nonIndians would not be allowed to use the court unless they would both submit to its jurisdic… the tribal court… unless they submitted to its jurisdiction.

And I think the only difference–

Ruth Bader Ginsburg:

That was as a result of the decision that we made in that case.

But I’m looking at the… this is a brief that was filed by a number of cities.

And they paint… this is City of Dante, et cetera… they paint, at pages 8 to 12, a… a picture of massive confusion.

And you are now standing here and saying it’s not so; State law will still apply and there won’t… won’t be anything different.

I thought we were arguing precisely about whether tribal law of State law applies, and… and, hence, whether this land can be used for this purpose or not.

If it can under State law but can’t under tribal law.

And you’re telling us it doesn’t make any difference, State law applies anyway.

James G. Abourezk:

–No, it will make no difference… minimal difference to the nonIndian population.

Anthony M. Kennedy:

Well, then… then why was this permit denied?

James G. Abourezk:

The permit… the permit wasn’t–

Anthony M. Kennedy:

And… and why… why would the permit have been denied if… if… if you’re correct?

James G. Abourezk:

–No, the permit wasn’t denied.

It was… first of all, they brought a… it was an administrative hearing in the State… in the State administrative procedures, asking for a permit from the State of South Dakota.

Anthony M. Kennedy:

Well, but you take the position that the Tribe has authority to determine whether or not the plant will be located here.

James G. Abourezk:

No.

James G. Abourezk:

No, we don’t take that position.

The position we took was that because the State could not permit on the reservation, that the EPA regulations must be followed then instead of the State regulations, which are weaker than EPA’s regulations.

That was our–

William H. Rehnquist:

So Federal law rather than State law would govern?

James G. Abourezk:

–Yes.

Because the Tribe had not gotten any authority to… to regulate landfills within the reservation.

David H. Souter:

And is the reason that State law would apply to the governance of the cities and towns in Justice Breyer’s example, is the reason for that that there is no supplanting Federal law?

James G. Abourezk:

No.

The reason is decisions by this Court, that provide for different kinds of jurisdiction over different people, whether Indians or nonIndians.

David H. Souter:

I see.

Could… could I ask you how you… how you respond to what I understand to be the… what should I say… the philosophy of… of… of the Petitioner here.

As I understand it the claim is that… that when all of the unalloted lands in a reservation are ceded, and there is nothing left in the reservation but allotted lands, it is to be understood that the reservation is thereby closed down.

Now, it would be inconsistent with that, I suppose, if there were indeed numerous reservations which consisted of nothing but allotted lands, in which the Tribe had no… no communal land left at all.

It had all been allotted.

Are there reservations like that?

James G. Abourezk:

I don’t know of any, if there are.

I think there is always–

Antonin Scalia:

So it… it may… it may be… it may be true that… that the way people thought at the end of the 19th century, if the Tribe, as a tribe, doesn’t own anything in this whole area, there can’t be a reservation.

You can’t have a reservation composed only of lands that are owned by individual Indians.

James G. Abourezk:

–Well, Justice–

Antonin Scalia:

All of which can be… can be alienated to nonIndians.

You have to have at least some… some basic component of… of tribal land that’s owned by the community of the Tribe.

James G. Abourezk:

–Well, there is in this case.

Right now, the… I think the Eighth Circuit did a little research on its own, independent research, showing that there were anywhere from 32 to 44 percent of Indian population in the county within… within that reservation.

So there’s a substantial–

William H. Rehnquist:

But that doesn’t go to tribal lands?

James G. Abourezk:

–Pardon?

William H. Rehnquist:

That doesn’t go to whether or not they are tribal lands, the fact that there may be Indians living there.

I mean, are there tribal lands?

James G. Abourezk:

Oh, yes, Your Honor.

James G. Abourezk:

Right now, about 10 percent.

As the Attorney General said, about 90 percent have been sold off… of the ceded lands… by… and were purchased by other people that are not… not any longer tribal… or Indian lands, yes.

David H. Souter:

But… but are you taking the position, to put it crudely, sort of the mirror image of the one that… that I was… I was attributing to the State?

I said, you know, if they… on the State’s theory, if they cede 1 acre, they have, in effect, terminated the jurisdiction over everything.

And… and you are saying, I guess, that as long as they retain 1 acre, the entire reservation, as a jurisdictional entity, as opposed to a… a property title–

James G. Abourezk:

I would say something totally different–

David H. Souter:

–retains.

Okay.

James G. Abourezk:

–Your Honor.

What I would say is that Congress intended, by virtue of leaving in Article XVIII in the… in the 1894 statute, by leaving that in, they certainly intended to continue tribal governmental authority within the boundaries of the reservation.

And if you read the entire agreement–

Antonin Scalia:

Why pick out that?

Why pick out that one element from the whole treaty as the one element that… that Article XVIII preserves?

If you read it literally, it… it just takes away everything that the whole treaty gives.

James G. Abourezk:

–No.

It continues the treaty, Justice Scalia.

It doesn’t take away any–

Antonin Scalia:

Oh, the 1858 Treaty, it continues.

James G. Abourezk:

–Yes.

Antonin Scalia:

I’m talking about the 1892 Treaty.

If you read Article XVIII literally, it says this Treaty shall have no effect.

James G. Abourezk:

Well, it doesn’t really say that.

Well, I think… I think a fair reading–

Antonin Scalia:

Can you tell me why it doesn’t say that?

I mean, it… it… it says what?

James G. Abourezk:

–I think–

Antonin Scalia:

Nothing in this agreement shall be construed to abrogate the 1858 Treaty.

James G. Abourezk:

–Yes.

Antonin Scalia:

And everything in the agreement abrogated one thing or another in the 18… the whole purpose of the agreement was to abrogate some elements of the 1858 Treaty, wasn’t it?

James G. Abourezk:

Respectfully, there’s only one change made in the… between the 1858 Treaty and the ’94 agreement, where there was a conflict.

James G. Abourezk:

That… and section 10 of the Treaty, in 1858, said that white people… they didn’t use the word “nonIndian”, they just said white people in those days… cannot enter this reservation and cannot reside here.

So that’s the only conflicting portion.

So if you re… with statutory construction, you passed a statute in 1894–

Ruth Bader Ginsburg:

But isn’t that a rather major… just a whole change in the concept, from this is a reservation reserved for the use of Indians to a concept of we want the white men to come in and work side by side for… one is preserving a culture and the other is trying to break it up and assimilate it into another culture.

It seems to me that these two documents are totally at odds.

James G. Abourezk:

–Oh, I don’t… I don’t agree with that, Justice Ginsburg.

Because if… if you read the whole entire treaty and the whole entire 1894 statute, I think it clearly shows that… that the whites… they could sell land to the nonIndians and nonIndians could come and settle.

In fact, if you read the legislative history and the report of the commissioners who negotiated it, they say… they told the Indians that we would like whites to come in and show you how to farm and their upstanding character… moral character, et cetera, et cetera.

And that’s what we would like to do.

And the Indians bought that.

And they said, but they still wanted to maintain the Indian character of their reservation.

Which is how I read Article XVIII to mean.

And that’s… of course, that’s how the two lower courts read it as well.

And you take the… the cession and sum certain language, which is… in my view, it’s just boilerplate in all of those agreements–

Ruth Bader Ginsburg:

But… but this Court has said it’s nearly irrebuttable.

That’s what Solem said.

James G. Abourezk:

–No, Solem said if you take those two, they’re almost… or nearly… Hagen said “nearly”.

Solem said “almost irrebuttable presumption”.

But if you read the entire agreement together, I say the presumption falls upon… the presumption is that the Indians retain the reservation and it’s up to the State to rebut–

Ruth Bader Ginsburg:

But then you… must… mustn’t you… mustn’t you, if you’re taking that position, say,

“Court, you were wrong; you should qualify or even overturn your precedent? “

Because the normal understanding of an almost irrebuttable presumption is it takes a whole lot… not something that ambiguous… ambiguous.

James G. Abourezk:

–Well, if it is ambiguous, it should be decided in favor of the Tribe, in any event.

According to this Court–

Ruth Bader Ginsburg:

But if you say… if we’re faced with something ir… almost irrebuttable and something that’s kind of weak, it could mean one thing, it could mean another thing, why does the… the part that’s uncertain–

James G. Abourezk:

–Well–

Ruth Bader Ginsburg:

–dominate what we have said is a very strong presumption?

James G. Abourezk:

–Justice Ginsburg, if you read the entire agreement and the statute of 1894, what my position is… our position is that the presumption is in favor of maintaining the reservation boundaries because of what Article XVIII, Article XVII, and the school–

Ruth Bader Ginsburg:

Then the presumption that’s created by the cession and sum certain clause is rebutted in your view?

James G. Abourezk:

–It’s not only rebutted, but it shifts… the burden of proof then shifts to the State or the people trying to abolish the reservation.

James G. Abourezk:

And I don’t think they’ve met that burden.

William H. Rehnquist:

But don’t you agree that there are various inferences that can be drawn, say, between Article XVIII and Article I and II, that it isn’t just crystal clear?

And it seems to me there, as Justice Ginsburg says, if… if you… unless you’re attacking what we said was the test in Solem, that… where you have a cession for a sum certain, there’s an almost insurmountable presumption, you have to come up with something more than just one way of reading a treaty as opposed to somebody else’s reading, either… either of which is plausible.

James G. Abourezk:

But you also said in Solem that there must be substantial and compelling evidence in order to disestablish or diminish a reservation.

And what I’m saying, Your Honor, is this That the… the evidence is not there.

The State has not met its burden to… it doesn’t show any substantial… it doesn’t show any–

William H. Rehnquist:

but the language in Solem suggests it meets its burden of… when it says there’s a cession of land for a sum certain.

Which they’re certainly is here.

James G. Abourezk:

–If that’s all there were.

But there is more.

And I mean more by Article XVIII.

William H. Rehnquist:

Yes.

But that more would then go to rebutting the almost in… insurmountable presumption.

I… I just question whether you have that much more.

James G. Abourezk:

Oh, I… well, of course, our position is that we have an awful lot more.

Sandra Day O’Connor:

Right.

I’m… I’m still curious, Counsel, why you don’t take the position that the 1894 Act might have diminished the reservation but not disestablished it entirely?

James G. Abourezk:

Well, we take that position simply because it’s not practical to… to diminish–

Sandra Day O’Connor:

You don’t take that position, do you?

James G. Abourezk:

–We don’t really, because it’s not practical.

You just can’t do it because–

Sandra Day O’Connor:

Although you said there are some tribal lands left.

James G. Abourezk:

–Yes.

Sandra Day O’Connor:

But they also are checkerboarded, I take it?

James G. Abourezk:

Yes, they are.

Stephen G. Breyer:

How… how did they ever get there?

If… if all of the unalloted land was ceded and all of the land that was left is allotted to individual members of the Tribe, how did it come about that there is still some tribal lands?

James G. Abourezk:

That there is still some?

Stephen G. Breyer:

Tribal lands.

James G. Abourezk:

Well, they’re owned by individual Indians.

Stephen G. Breyer:

So these are all allotted lands, in other words?

James G. Abourezk:

Yes.

Yeah.

And there… there are some tribal lands, but mostly it’s individual–

Antonin Scalia:

What other tribal lands?

I mean, that’s crucial to me.

I thought all the tribal lands, all the communally owned lands were given to the United States.

That’s… that’s certainly what this–

James G. Abourezk:

–No.

No.

Antonin Scalia:

–No?

James G. Abourezk:

Your Honor, what… what happened was there were… the allotments were over 200,000 acres that were allotted out.

What was left over was 160-some-thousand acres.

That’s what the government came along and bought in 1892.

Antonin Scalia:

Right.

All of the unalloted lands, which was the only portion of the reservation that was still held by the Tribe rather than individual Indians.

Right?

James G. Abourezk:

Yes.

Antonin Scalia:

Okay.

So that there were… there were no tribal lands retained in 1892?

James G. Abourezk:

Yes, there were.

But–

David H. Souter:

Well, I thought… then I don’t understand your answer to Justice Scalia.

James G. Abourezk:

–I must have misunderstood his question.

But there are… there were tribal lands in 1894.

But most of them are individual Indian allotments, owned by Indians.

William H. Rehnquist:

But–

–But if… if you distinguish between individual Indian allotments and, quote, tribal lands, are… are you saying there are some tribe… what you call tribal lands that are not individual allotments?

James G. Abourezk:

Yes, very… not very many… not very many acres, but there are.

Yes.

David H. Souter:

And some of them have been in the Tribe’s possession since before the 1892 Treaty?

James G. Abourezk:

There were all in the Tribe’s possession prior to 1892.

Then–

David H. Souter:

But the… the… the land… the… the communally owned tribal land was owned by the Indians and so held before 1892 and have been held continuously to the present day; is that correct?

James G. Abourezk:

–No.

No.

All of the lands… all of the 430,000 acres were communally owned until the allotments–

David H. Souter:

Right.

James G. Abourezk:

–around… and then… then what was left over, in 1892, the government purchased.

That was 160-some-thousand.

David H. Souter:

So when the government purchased, there were no communally land… owned lands, tribal lands, retained by the Tribe as such?

That’s–

James G. Abourezk:

Well, only a mile square.

There was a mile square they retained for their headquarters, et cetera, et cetera.

David H. Souter:

–Okay.

Thank you, Mr. Abourezk.

James G. Abourezk:

Thank you.

William H. Rehnquist:

Mr…. who do we have here?

Ms. McDowell.

Barbara B. McDowell:

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

To start with last things first, we’d like to deal with the jurisdiction over the reservation area subsequent to 1894.

One can find in the record annual reports from the superintendent of the Yankton Reservation, from 1895, 1896 and so forth, to 18… to 1906, which I believe is the last report in the record… those reports consistently refer to the reservation as a continuing entity.

It’s interesting that it doesn’t demonstrate any significant change at the time of the opening.

There’s a notation that the reservation was opened, but there is nothing to suggest that there was a major change in the situation on the reservation at the time.

David H. Souter:

But there’s nothing in there, I take it, to suggest that this kind of jurisdiction was being exercised over either allotted lands or the lands that were conveyed in 18… or under the… under the 1892 agreement?

Barbara B. McDowell:

The record is unclear as to whether the State or the Tribe or the Federal Government was exercising jurisdiction over the allotted lands at the time.

It appears that the only prosecution that is cited from the early era, one in 1895, may well have been on Indian allocated lands.

It does not appear clear from my reading of the record.

More significantly, however, the exercise of criminal jurisdiction by the State was not inconsistent at the time with continued reservation status, as the Court noted in the Yakima case.

At the time, it was thought that Indian character of the land went with Indian ownership.

Barbara B. McDowell:

And it was also thought that once an Indian received an allotment, under the Dawes Act, the Indian immediately became a citizen of the State and subject to its plenary jurisdiction.

That was only changed in 1906, which was some time after the Act at issue here.

Antonin Scalia:

A theory which is beautifully in accord with the State’s notion that everyone would have assumed that if there’s nothing left in a reservation but allotted lands, there’s no reservation left.

Barbara B. McDowell:

Oh, that’s a theory that this Court has subsequently rejected over the last 35 years.

Antonin Scalia:

But it fits very nicely with what you say to be the… the… the… the understanding, that… that you can’t have a… the reservation went with… with Indian ownership.

Barbara B. McDowell:

Oh, the Court has acknowledged that in a number of other cases, including Solem, that at the time, the understanding was that Indian status was a property status, but that Congress disabused everyone of that notion in 1948, and that when we are deciding these disestablishment and diminishment issues, we are looking at reservations as they have been considered after ’48, and not as they may have been considered 100 years ago.

Stephen G. Breyer:

Well, how… how… what is the normal now?

I take it now differently from before 1906.

Imagine a reservation of 50 square miles.

On one of those square miles live a group of people who are not Indians, who own their land in fee, and who bought it from the Tribe.

Now, what law governs?

The law of the State governs those people?

I know the tribal land does not govern them.

So far, it seems to me from what I’ve looked up, Federal law governs.

Barbara B. McDowell:

State law governs them except in some particular instances that this Court has spelled out.

Stephen G. Breyer:

Why does State law govern?

Is it that the Federal Government has somehow, through law, statute or regulation, brought in State law?

Barbara B. McDowell:

No.

It’s because the… I understand it’s because the State has plenary jurisdiction over its citizens, wherever they reside.

Stephen G. Breyer:

All right.

So, in other words, these towns that are upset… I don’t understand they’re upset, or maybe they shouldn’t be upset, because nothing is going to change for them?

Barbara B. McDowell:

That’s our position, that things should not change–

Stephen G. Breyer:

Then why is it… I’m back at Justice Kennedy’s point… why is it that there’s some argument here about building a… some kind of thing in this… waste disposal or what it is… if the State law governs the same as it would if it were not within the reservation?

Barbara B. McDowell:

–This was a… a particular issue of the EPA’s authority to delegate primary supervision of landfills to the State.

And under that permitting authority, the State excluded Indian reservations, as I understand it.

But as a general matter–

Anthony M. Kennedy:

What about… what about taxation?

Barbara B. McDowell:

–As a general matter, the State may tax its citizens on the reservation.

Certainly, it can tax the nonIndian citizens just as it would, whether it was a reservation or not.

It may also impose significant taxes, such as property taxes, on the Indians.

Stephen G. Breyer:

So in the absence of a Federal statute that explicitly distinguishes between what happens on the reservation or not, everything stays the same, but for the Indians themselves, because they would have certain rights under tribal law, et cetera, if it is a reservation, throughout the reservation that they wouldn’t have if it isn’t; is that right?

Barbara B. McDowell:

With a few limited–

Is that right?

Barbara B. McDowell:

–exceptions, Justice Breyer.

If an Indian commits a crime… if a… a nonIndian commits a crime against an Indian, if it’s reservation land, then Federal law rather than State law governs the prosecution.

The State, in A-1… this Court, in A-1 Contractors–

Sandra Day O’Connor:

Well, could… could you enlighten us on what lands continued to be owned by the Tribe as such, as opposed to specific Indians by way of allotment–

Barbara B. McDowell:

–It’s–

Sandra Day O’Connor:

–after 1892?

Barbara B. McDowell:

–It’s my understanding that those lands were, for the most part, allocated to individual Indians.

However, the Federal Government–

Sandra Day O’Connor:

Well, I’m hearing a lot of “for the most parts”, and “no”, and “there’s this other land”, and “it’s scattered”.

I mean, what is it?

How are we to find out?

Barbara B. McDowell:

–Well, it appears–

Sandra Day O’Connor:

How do we know?

Barbara B. McDowell:

–from the record, which is not entirely clear, that there were some lands that were subject to allocation, but the actual allocations were not made until some time after 1894.

There’s also the mile square area–

Sandra Day O’Connor:

But they’ve all been made… is there any land that was held continuously by the Tribe as such, as opposed to tribal members, since 1892?

Barbara B. McDowell:

–It’s my understanding that there is this mile square area that’s referred to–

A one square mile.

Barbara B. McDowell:

–But, other than that… although there are trust lands today that are held by the Tribe, it’s not clear that any of those lands were trust lands earlier.

Perhaps Mr. Abourezk could clarify that, however.

Sandra Day O’Connor:

Now, this… this is a totally checkerboarded situation?

Barbara B. McDowell:

That’s correct.

And this Court–

Sandra Day O’Connor:

That was certainly a factor that resulted in our thinking there was at least diminishment in the DeCoteau case.

Barbara B. McDowell:

–Well, the Court, in DeCoteau, found total disestablishment.

But that was a different case, in several respects, from this one.

In the first place, of course, there was no savings clause preserving rights under an earlier treaty.

Barbara B. McDowell:

In addition, the Court placed a lot of emphasis in DeCoteau on the negotiation history with the Tribe.

There were a number of statements of tribal leaders, stating that we understand that the reservation is going to disappear, essentially, that we never understood that we would keep this reservation.

Here there are no statements like that suggesting any kind of common understanding that the reservation was going to be extinguished as a result of the Act.

It’s interesting that–

Ruth Bader Ginsburg:

But do you… do you agree with both counsel, it seemed to me, that the choice is either we accept your argument based on Article XVIII or there’s a disestablishment?

Barbara B. McDowell:

–That’s correct.

Ruth Bader Ginsburg:

That there is no such thing as diminishment applicable on these facts?

Barbara B. McDowell:

That’s correct.

Diminishment seems to be limited to cases such as Rosebud, where there was a selling or a ceding of a part of the reservation, in so many words, as opposed to this sort of situation.

Ruth Bader Ginsburg:

Didn’t–

–May I ask one–

–Didn’t Judge Murphy say she thought that… that the disestablishment was the rare thing and the diminishment the usual thing?

It’s a very–

Barbara B. McDowell:

Well, disestablishment is very rare.

This Court has only found it in one prior case, DeCoteau.

And subsequently, in Rosebud, the Court suggested that disestablishment should be more difficult to find.

Antonin Scalia:

–But–

–Ms…. Ms. McDowell, can I go back?

You said… you said Rosebud is different because there it involved conveyance of only part of the reservation, in so many words.

Barbara B. McDowell:

Yes.

Antonin Scalia:

But this case involves a conveyance of only part of the reservation, in so many words.

Namely, the part that was held in fee by the Tribe and not the part that had been allotted.

Do you mean that Rosebud involved only a conveyance of part of the tribally owned portion of the reservation, in so many words?

Is that what you mean?

Barbara B. McDowell:

Well, the language of the statute in Rosebud says

“We cede a part of our reservation. “

That kind of language wasn’t used here.

The language was, “We cede our surplus lands”.

There was no reference to selling off all or part of the reservation.

It should also be noted that the word “cede” didn’t have any single–

Well, isn’t it true that the–

Barbara B. McDowell:

–settled meaning in the 19th century; that it was–

John Paul Stevens:

–Isn’t it true, though, that apart from the savings clause and the negotiating history, if you just look at the text of the document, the DeCoteau case is just like this, that if you have… let me just finish one question so you can comment… if you assume that if everything is allotted, you don’t have a reservation.

And if you then assume that all that’s left is unalloted land, but then you cede your entire authority over the unalloted lands, what can be left?

I have trouble getting your explanation to that.

Barbara B. McDowell:

–Several responses.

There are other differences between this case and DeCoteau.

John Paul Stevens:

I understand the differences because of the history primarily in the absence of the savings clause.

Barbara B. McDowell:

And there are other clauses that are in our Act here that were not in the Act in DeCoteau, such as the reservation of lands for Agency school and other purposes.

That was not present in DeCoteau; it is present here.

William H. Rehnquist:

Thank you, Ms. McDowell.

General Barnett, you have 2 minutes left.

General Barnett, could you quickly advise us what the jurisdictional consequence of this… of this case is?

Mark W. Barnett:

Well–

Anthony M. Kennedy:

What does the State lose if… if you lose?

Mark W. Barnett:

–I think we lose a vast amount of clarity, as we are standing… or, up until the District Court opinion, jurisdiction in the 90 percent of this area that has gone out of Indian hands was–

Anthony M. Kennedy:

What… what kinds of authority can you not exercise if you lose that you’re exercising now?

Mark W. Barnett:

–Well, obviously, if you were to hold that it is still a reservation in this entire area, it would have a big effect on criminal jurisdiction.

And the best example I can give you is that if you were the victim of a crime out there on that 90 percent of that area, it’s the difference between whether you call the sheriff down the road or whether you call the FBI office 120 miles east of there, in Sioux Falls, and leave a message on the machine.

Second–

Stephen G. Breyer:

It’s criminal jurisdiction over Indians?

Mark W. Barnett:

–Pardon me?

Stephen G. Breyer:

Criminal jurisdiction over Indians.

Is there anything else?

Is there anything with respect to nonIndians that you’d lose?

Mark W. Barnett:

Yes, I think there would be.

You’re on a reservation at that point, and I think there would be criminal aspects, because of 18–

Stephen G. Breyer:

No, no, no.

Forget criminal.

I mean, is there any civil?

Mark W. Barnett:

–Yes, there would be.

What?

Mark W. Barnett:

Well, I think there are a number of holdings of this Court that suggest that… that if there is a reservation out there, the Tribe is going to have some rights of civil jurisdiction.

And, indeed, in this case, when they first now started claiming that they have civil jurisdiction, they’re in trying to contest fee land… fee land landfill that isn’t even on trust land.

That’s our Brendle case.

The Brendle case.

Mark W. Barnett:

Suffice it to say, Your Honor, with the… and… and I’m trying to be brief to stay within my time… but suffice it to say that this Court is aware that there would be all sorts of ramifications that the Court has seen in prior cases in disputes over civil jurisdiction, A-1 being one place where we’ve had to litigate who’s in charge.

Let me just clarify something else.

In this Act, there was no tribal land base left.

Yet there was a little reserve of Federal land, for the 1 mile square, but everything else was allotments.

And so tribal communal ownership was over.

Secondly, there were savings clauses in Montana, in the Montana Crow agreements, and in the Rosebud agreement.

And it seems to me there is a hook in the argument that they’re suggesting that a nonoperative savings clause, with no specific language about preserving some authority and no contemporary history… my time is up.

Thank you.

William H. Rehnquist:

Yes.

Thank you, General Barnett.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.