No. 10-1058/~ S’upror~.~ ? y~ug, u.s. [

| MAY 1 8 2011

YANKTON SIOUX TRIBE,AND ITS INDIVIDUAL MEMBERS,

Cross -Petitioners,v.

DENNIS DAUGAARD, GOVERNOR OFSOUTH DAKOTA; MARTY J. JACKLEY,

ATTORNEY GENERAL OF SOUTH DAKOTA;SOUTHERN MISSOURI RECYCLING AND WASTEMANAGEMENT DISTRICT; PAM HEIN, STATE’SATTORNEY OF CHARLES MIX COUNTY, ET AL.,

Cross-Respondents.

On Conditional Cross-Petition ForA Writ Of Certiorari To The United StatesCourt Of Appeals For The Eighth Circuit

BRIEF OF RESPONDENT CHARLES MIX COUNTYIN RESPONSE TO CONDITIONAL

CROSS-PETITION FOR WRIT OF CERTIORARI

PAMELA HEINCharles Mix County

State’s AttorneyP.O. Box 370Lake Andes, SD 57356(605) 487-7441

TOM D. TOBINCounsel of Record

P.O. Box 730422 Main StreetWinner, SD 57580(605) 842-2500tobinlaw@gwtc.net

Attorneys for Cross-Respondent Charles Mix County

SCOTT GREGORY KNUDSONBRIGGS AND MORGAN, P.A.2200 IDS CenterMinneapolis, MN 55402(612) 977-8400

C()CKI~E LAW BRIEF PRINTING CO. (800) 225-6964O1"~ CALL C()LLECT (402} 342-2831

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................ii

SUMMARY ..........................................................2

ARGUMENT ........................................................4

CONCLUSION .....................................................35

APPENDIX

Petition for Writ of Mandamus (County), Yank-ton Sioux Tribe v. Podhradsky, 529 F.Supp.2d1040 (D.S.D. 2007) (No. 07-1779) ....................App. 1

Petition for Writ of Mandamus (State), YanktonSioux Tribe v. Podhradsky, 529 F.Supp.2d1040 (D.S.D. 2007) (No. 07-1779) ....................App. 7

National Indian Law Library, Allotment/Cession Statutes, Doc. No. 002279 ................ App. 37

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TABLE OF AUTHORITIES

Page

CASES:

Bruguier v. Class, 599 N.W.2d 364 (S.D. 1999) .....passim

DeCoteau v. District County Court, 420 U.S.425 (1975) ........................................................ passim

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584(1977) ............................................................... passim

South Dakota v. Yankton Sioux Tribe, 522 U.S.329 (1998) ........................................................ passim

United States ex rel. Feather v. Erickson, 489F.2d 99 (8th Cir. 1973) ..............................................9

Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d1135 (D.S.D. 1998) ................................ 15, 16, 19, 24

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010(8th Cir. 1999), cert. denied, 530 U.S. 1261(2000) ..................................................... 17, 22, 24, 27

Yankton Sioux Tribe v. Podhradsky, 529F.Supp. 1040 (D.S.D. 2007) .....................................30

Yankton Sioux Tribe v. Podhradsky, 577 F.3d951 (8th Cir. 2009) ..................................................29

Yankton Sioux Tribe v. Podhradsky, 606 F.3d994 (8th Cir. 2010) ....................................................4

STATUTORY REFERENCES:

18 USC §1151(a) .................................................passim

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TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS AUTHORITIES:

Conditional Cross-Petition for a Writ of Certiorari,Yankton Sioux Tribe v. Dennis Daugaard, Gov-ernor of South Dakota, et al. (No. 10-1058) ....... passim

Brief for the United States in Opposition,Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010(8th Cir. 1999), cert. denied, 530 U.S. 1261(2000) (Nos. 99-1490 and 99-1683) ................. 3, 4, 26

Order on Petitions for Rehearing of the UnitedStates Court of Appeals for the Eighth Cir-cuit, Yankton Sioux Tribe v. Podhradsky, 606F.3d 994 (8th Cir. 2010) ................................ 4, 31, 32

Transcript of Oral Argument, South Dakota v.Yankton Sioux Tribe, 522 U.S. 329 (1998)(No. 96-1581) .........................................................5, 6

Brief of Amici Curiae of the National Congressof American Indians, et al., Rosebud SiouxTribe v. Kneip, 430 U.S. 584 (1977) (No. 75-562) ............................................................................6

National Indian Law Library, Allotment/Cession Statutes, Doc. No. 002279 ...........................9

Brief Amici Curiae of Association on AmericanIndian Affairs, Inc., et al., Rosebud SiouxTribe v. Kneip, 430 U.S. 584 (1977) (No. 75-562) ....................................................................10, 11

Interior Department Opinion, 54 I.D. 559.(1934) .......................................................................11

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TABLE OF AUTHORITIES - Continued

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Brief of Charles Mix County, South Dakota,Amicus Curiae, in Support of Petitioner,State of South Dakota, South Dakota v.Yankton Sioux Tribe, 522 U.S. 329 (1998)(No. 96-1581) ...........................................................11

Findings of Fact and Conclusions of Law of theCircuit Court for the First Judicial Circuit ofthe State of South Dakota, County of CharlesMix, in Bruguier v. Class, August 14, 1998 ...........12

Memorandum Opinion and Order of the CircuitCourt for the First Judicial Circuit of theState of South Dakota, County of CharlesMix, in Bruguier v. Class, June 30, 1998 .........12, 14

Petition for Writ of Certiorari, Pam Hein, State’sAttorney for Charles Mix County, et al. v. Yank-ton Sioux Tribe, et al. (No. 10-932) ....... 12, 13, 14, 15

Brief of Cities Dante, Geddes, Lake Andes,Pickstown, Platte, Ravinia and Wagner, AmiciCuriae, in Support of Petitions for Writ of Cer-tiorari, Dennis Daugaard, Governor of SouthDakota, et al. v. Yankton Sioux Tribe, et al.(Nos. 10-929, 10-931 and 10-932) ............... 12, 13, 30

Applications for an Extension of Time, SouthDakota v. Yankton Sioux Tribe, YanktonSioux Tribe v. Gaffey (Nos. 99-1490 and 99-1683) ........................................................................15

Brief in Opposition, Daugaard, et al. v. YanktonSioux Tribe, et al. (Nos. 10-929, 10-931 and10-932) ................................................... 15, 23, 24, 25

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TABLE OF AUTHORITIES - Continued

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Complaint for Injunctive Relief and for Declar-atory Judgment, Yankton Sioux Tribe v.Gaffey, 14 F.Supp.2d 1135 (D.S.D. 1998) (No.98-4042) ...................................................................16

Brief for Matt Gaffey, et al., Yankton SiouxTribe vo Gaffey, 188 F.3d 1010 (8th Cir. 1999),cert. denied, 530 U.S. 1261 (2000) (Nos. 98-3893/3894/3896/3900SDSF) ....................................17

Brief for the United States, Dennis Daugaard,Governor of South Dakota, et al. v. YanktonSioux Tribe, et al. (Nos. 10-929, 10-931, 10-932 and 10-1058) .....................................................23

Brief for the Federal Respondents, YanktonSioux Tribe, et al. v. United States ArmyCorps of Engineers, et al. (No. 10-1059) ...........23, 33

Brief of United States, Yankton Sioux Tribe v.Podhradsky, 529 F.Supp.2d 1040 (D.S.D.2007) (No. 98-4042) .................................................28

Petition for Writ of Mandamus (County),Yankton Sioux Tribe v. Podhradsky, 529F.Supp.2d 1040 (D.S.D. 2007) (No. 07-1779) .........28

Petition for Writ of Mandamus (State), YanktonSioux Tribe v. Podhradsky, 529 F.Supp.2d1040 (D.S.D. 2007) (No. 07-1779) ...........................29

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TABLE OF AUTHORITIES - Continued

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Amicus Curiae Brief of Charles Mix ElectricAssociation, Inc. and Rosebud Electric Coop-erative, Inc. in Support of Petitions for Writof Certiorari, Dennis Daugaard, Governor ofSouth Dakota, et al. v. Yankton Sioux Tribe,et al. (Nos. 10-929, 10-931 and 10-932) ..................30

Amicus Curiae Brief for Colin Soukup, Repre-senting the Frank Soukup Family LimitedPartnership, and Dan Cimpl in Support ofPetitions for Writ of Certiorari, DennisDaugaard, Governor of South Dakota, et al.v. Yankton Sioux Tribe, et al. (Nos. 10-929,10-931 and 10-932) ..................................................30

Amicus Curiae Brief of Wagner CommunitySchool District No. 11-4 in Support of Peti-tions for Writ of Certiorari, DennisDaugaard, Governor of South Dakota, et al.v. Yankton Sioux Tribe, et al. (Nos. 10-929,10-931 and 10-932) ..................................................30

Brief of Randall Community Water District,Amicus Curiae, in Support of Petitions forWrit of Certiorari, Dennis Daugaard, Gover-nor of South Dakota, et al. v. Yankton SiouxTribe, et al. (Nos. 10-929, 10-931 and 10-932) .......30

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In the process of fashioning a thirty-seven thou-sand (37,000) acre noncontiguous reservation out ofwhole cloth, the lower courts have once again ignoredthe very strong presumption of cession and dimin-ishment or disestablishment set forth in DeCoteau v.District County Court, 420 U.S. 425 (1975), confirmedin Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977),and reiterated in South Dakota v. Yankton SiouxTribe, 522 U.S. 329, 344 (1998). A review of the Yank-ton Sioux Tribe’s Conditional Cross-Petition for a writof certiorari confirms that the Tribe has followed thelead of the lower courts in this respect. In addition,the Yankton Sioux Tribe further asserts that the 1858reservation has only been reduced to the extent of theceded lands. As a result, the Tribe disagrees with thecourt of appeals and claims another 230,000 acres ofnoncontiguous fee lands (former allotments), ownedand populated by non-Indians, to constitute an 18USC § 115 l(a) noncontiguous Yankton Reservation.

The Tribe is clearly mistaken on all counts.Nevertheless, the County joins the State in support-ing the grant of the Tribe’s Conditional Cross-Petitionin the event that certiorari is granted in Nos. 10-929,10-931, and 10-932.

Moreover, the County continues to believe thatthis case is particularly suited for some type of sum-mary disposition. On this point, the County relies onthe detailed rationale set forth by the South DakotaSupreme Court in Bruguier v. Class, 599 N.W.2d 364(S.D. 1999), which adhered fully to the principles setforth in DeCoteau, Rosebud Sioux Tribe and Yankton

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Sioux Tribe to hold that Congress had disestablishedthe Yankton Reservation in 1894.

That was not an easy task in Bruguier in the faceof consistent efforts in the federal courts to put everysingle acre of trust land in reservation status, at anycost. Nor is Bruguier fact bound in any respect. ThisCourt should recognize the efforts of the South Dako-ta Supreme Court in Bruguier, as this Court did inDeCoteau, 420 U.S. at 428-431, Rosebud Sioux Tribe,430 U.S. at 603 n.26, and Yankton Sioux Tribe, 522U.S. at 342 n.4. In this case, however, that recogni-tion could appropriately be in the form of a summaryorder that vacates the opinion of the court of appealsfor further consideration.

SUMMARY

This case can be summarized simply. When theissue regarding the status of the Yankton SiouxReservation was before this Court in Yankton SiouxTribe, a unanimous Court provided the federal dis-trict court and the court of appeals with an oppor-tunity. It was an opportunity to address a legitimateissue after having previously adopted an absurdresult resurrecting 1858 reservation boundaries longdeemed disestablished. The legitimate issue waswhether the Yankton Sioux Reservation had beenwholly disestablished. The decisions of the districtcourt and the court of appeals since that time do notreflect an appreciation of that opportunity or a proper

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respect for the principles reflected in the decisions ofthis Court.

In the remand, the district court simply ignoredthat Yankton Sioux Tribe held that the 1858 bound-aries were disestablished. The district court resur-rected the 1858 reservation boundaries again. Thedistrict court also held that all the land except theceded lands was within those 1858 boundaries. As aresult, two hundred thirty thousand (230,000) acresof formerly allotted non-Indian fee land was alsowithin those boundaries.

The court of appeals reversed the district courton the 1858 boundary question. The court of appealsrecognized that Yankton Sioux Tribe squarely heldthat the 1858 reservation boundaries were disestab-lished.

As a result, the court of appeals also reversed thedistrict court with respect to the reservation status ofthe two hundred thirty thousand (230,000) acres offormerly allotted non-Indian fee land. Formerlyallotted non-Indian fee lands were not within thelimits of the 1858 reservation boundaries because thisCourt held the 1858 reservation boundaries weredisestablished. As a result, the court of appeals heldthat Congress foresaw this result.

The court of appeals mistakenly recognized theagency lands as a "reservation." At the time, even theUnited States recognized that the court of appeals didnot "articulate its rationale for that determination."Brief for the United States in Opposition, Yankton

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Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999),

cert. denied, 530 U.S. 1261 (2000) (Nos. 99-1490 and99-1683), at 20. As a result of this reservation, thecourt of appeals remanded the case back to the dis-

trict court for a third time, to document the reserva-tion status of the rest of the trust land.

Not surprisingly, the district court held that all ofthe trust land (37,000 acres) should be designated asa reservation under any one of several alternativetheories.

The court of appeals affirmed the district courton every acre and every alternative reservationstatus theory. In addition, the court of appeals, on itsown notion, thought thousands of acres of fee landshould also be within the reservation, despite previ-ously limiting the scope of the remands to trust landand despite previously holding that none of theformerly allotted non-Indian fee lands were withinthe limits of the reservation. On rehearing, the of-fending footnote regarding fee lands was deleted fromthe opinion. Order on Petitions for Rehearing of theUnited States Court of Appeals for the Eighth Circuit,Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994 (8th

Cir. 2010), CountyApp. I, 52-70.

ARGUMENT

The County submits that omissions in the Tribe’sConditional Cross-Petition are more significant in

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assessing the arguments of the Tribe than anythingelse in the Cross-Petition.

1. The fundamental omission centers aroundthe failure of the Tribe to address the almostirrebuttable presumption of disestablishment thatcontrols the manner in which the Yankton cessionmust be construed. The unanimous opinion in Yank-ton Sioux Tribe repeatedly references this "verystrong" cession presumption. Yankton Sioux Tribe atCounty App. II, 343, Transcript of Oral Argument,South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,343, 351 (1998) (No. 96-1581), County App. II, 842.Not surprisingly, the lower federal courts eithererroneously restrict the scope of the presumption

(limited to ceded land rather than area of reservationceded) or fail to mention it altogether. Yankton SiouxTribe, 522 U.S. at 338 n.2, County App. I, 333-334.

Like the United States, the Yankton Sioux Tribe hasalso neglected the significance of the presumption.

2. A related significant omission in the Tribe’sConditional Cross-Petition is the failure to cite, letalone discuss, the leading precedent in cession anddisestablishment cases: DeCoteau v. District County

Court, 420 U.S. 425 (1975), and Rosebud Sioux Tribev. Kneip, 430 U.S. 584 (1977). Because of the time andeffort this Court expended on extensive opinions inDeCoteau, 420 U.S. 425 (1975) (43 pages), and Rose-bud Sioux Tribe, 430 U.S. 584 (1977) (49 pages),developing and clarifying this "very strong" cessionpresumption, it is truly remarkable that the Tribe’sConditional Cross-Petition fails to address or even

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cite either the presumption or the cases. Transcript ofOral Argument, Yankton Sioux Tribe (No. 96-1581),County App. II, 842. This is especially so because thecases and the presumption were cited repeatedly bythe Court in Yankton Sioux Tribe.

a. Several citations confirm this point and allconflict with the decision of the court of appeals andthe arguments of the Yankton Sioux Tribe in theCross-Petition. The brief submitted by the NativeAmerican Rights Fund in Rosebud Sioux Tribe onbehalf of the National Congress of American Indiansclearly confirms the Native American Rights Fundreliance on DeCoteau’s discussion of cessions like theSisseton and Yankton cessions for the propositionthat cessions disestablish reservations.

The Native American Rights Fund, signatory to

the Conditional Cross-Petition, has, like the UnitedStates, substantially shifted its position. At one timethe Native American Rights Fund clearly recognizedthat a cession and sum certain agreement terminateda reservation. In the Rosebud Sioux Tribe case, forexample, it stated:

In the DeCoteau case, the Court found thatan outright sale of all unallotted lands forpresent consideration terminated the reser-vation.

Brief of Amici Curiae of the National Congress ofAmerican Indians, et al., Rosebud Sioux Tribe v.Kneip, 430 U.S. 584 (1977) (No. 75-562), at 6-7.

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The position of the Native American Rights Fundin Rosebud directly supports the position of theCounty today.

b. In Rosebud Sioux Tribe, all the Justicesagreed with the Native American Rights Fund thatcessions disestablished reservations. The majorityand the dissent of Justice Marshall both reaffirmedDeCoteau. Justice Marshall clearly summarizes thearguments that cessions like the Yankton cessiondisestablish reservations. Rosebud Sioux Tribe v.Kneip, 430 U.S. 584, 616-632 (1977) (Marshall, J.,dissenting). And Justice Marshall specifically recog-nized that DeCoteau was the pathmarking cessiondisestablishment case.

[T]he Court has found disestablishmentwhen Congress ratified a treaty by whichIndians agreed to sell all interest in part orall of a reservation, DeCoteau v. DistrictCounty Court, supra

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 617(1977) (Marshall, J., dissenting).

In DeCoteau, the Court clearly distinguishedthe two situations, observing:

’[A purchase-and-sale Act] is not aunilateral action by Congress butthe ratification of a previously ne-gotiated agreement, to which atribal majority consented, lit] doesnot merely open lands to settle-ment; it also appropriates and vestsin the tribe a sum certain ... inpayment for the express cession and

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relinquishment of "all" of the tribe’s"claim, right, title, and interest," inthe unallotted lands .... ’

Id. at 617-618.

In DeCoteau we stated that this language,which contained in an agreement approvedby the Indians and ratified by Congress, is"precisely suited," 420 U.S., at 445, to termi-nating a reservation .... Whereas in DeCoteauthe key phrase expressed the Indians’ under-standing of what they were surrendering andthe Government’s understanding of what itwas acquiring.

Id. at 619.

Congress did not intend to remove theopened areas from the Reservation.

Id. at 621 (emphasis added).

Significantly, the 1901 Agreement which, ifratified, would have partially terminated theReservation

Id. at 621 n.6.

The key role that DeCoteau played in the Rose-bud Sioux Tribe decision and the fact that the NativeAmerican Rights Fund argued DeCoteau cessiondisestablishment in Rosebud Sioux Tribe makes theomission of Rosebud Sioux Tribe in the Tribe’s Cross-Petition, co-authored by the Native American RightsFund, even more remarkable.

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c. Moreover, the brief of the Native AmericanRights Fund in Rosebud Sioux Tribe and the dissent

in Rosebud Sioux Tribe reference other materials thatfurther support and confirm cession and disestab-lishment in the context of the cessions in DeCoteauand Yankton Sioux Tribe. The material conflicts withthe holdings of the court of appeals and the argu-ments in the Tribe’s cross petition. For example, in

Rosebud Sioux Tribe, Justice Marshall cites the Na-tional Indian Law Library’s compilation of Allotment/Cession Statutes compiled by the Native AmericanRights Fund in 1973, two years before DeCoteau wasdecided. National Indian Law Library, Allotment/Cession Statutes, Doc. No. 002279. Although theMarshall dissent cites the document for reasonsunrelated to the issue here, the compilation clearlyputs the DeCoteau cession and the Yankton SiouxTribe cession in the same category, both recognized asreservation disestablishment statutes.

The County has appended excerpts from theNational Indian Law Library, Allotment/CessionStatutes, Doc. No. 002279. Respondent County’s App.at 37-38. As that text explains, the tables note "’out-right cession’ statutes have been ... more prone inthe past to find disestablishment." Id. at 38. Signifi-cantly, the "more liberal" case noted in the text thathad just recently reached a contrary conclusion

regarding cession and disestablishment was squarelyreversed by this Court in DeCoteau v. District County

Court, 420 U.S. 425 (1975). See United States ex rel.Feather v. Erickson, 489 F.2d 99 (8th Cir. 1973).

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DeCoteau unequivocally resolved the issue of cessionand disestablishment.

d. Other briefs filed by other tribes and tribalorganizations in Rosebud Sioux Tribe contain morematerials that also support and confirm this type ofcession and disestablishment. The BriefAmici Curiae

of Association on American Indian Affairs, Inc., et al.emphasizes the traditional position of the Depart-

ment of Interior:

Specifically, in a formal opinion published in1934, the Solicitor of the Department of theInterior held as follows:

During the early years of our dealingwith the Indians, the custom was tohave individual or combined nations,tribes, or bands relinquish or cede to theUnited States large areas claimed bythem for which there was usually a cashor other consideration, and also the set-ting apart or reserving of certain landswithin such ceded areas or from landsbelonging to the United States and lo-cated elsewhere .... In this way the In-dians lost all identity with the cededareas and their rights and intereststherein were recognized as having beencompletely extinguished.

In years following, for reasons varyingon the different reservations, portions ofthese diminished or newly establishedreservations were also ceded to the

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United States .... In this way the exte~rior boundaries of a reservation were fur-ther reduced ....

Brief Amici Curiae of Association on American IndianAffairs, Inc., et al., Rosebud Sioux Tribe v. Kneip, 430U.S. 584 (1977) (No. 75-562), at 29-30.

The Solicitor of the Department of Interior goeson in this decision to conclude that land obtained by"outright cessions" would not be considered for resto-ration to tribal ownership. Interior DepartmentOpinion, 54 I.D. 559, 560-561 (1934). However, landsfor which the Indians receive the proceeds of the saleonly as the tracts were sold would be included. Signif-icantly, in South Dakota, the Lake Traverse Reserva~tion, ceded and at issue in DeCoteau, and the YanktonReservation, ceded and at issue in Yankton SiouxTribe, were both excluded from restoration to tribalownership.1

3. Another significant omission in the Condi-tional Cross-Petition of the Yankton Sioux Tribecenters around the failure of the Cross-Petition todiscuss or even cite the conflicting opinion of theSouth Dakota Supreme Court in Bruguier v. Class,

1 Similarly, in Rosebud Sioux Tribe, the United States alsorepeatedly acknowledged that cessions disestablish reservations.The conflicting arguments of the United States are tracked inthe Brief of Charles Mix County, South Dakota, Amicus Curiae,in Support of Petitioner, State of South Dakota, South Dakota v.Yankton Sioux Tribe, 522 U.S. 329 (1998) (No. 96-1581), repro-duced in County App. II, 460-502 (481-482).

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599 N.W.2d 364 (S.D. 1999). Importantly, the YanktonSioux Tribe does not claim that it lacked an oppor-tunity to participate in Bruguier, it simply chose notto participate.

The County discusses Bruguier at length in theCounty’s Petition for Certiorari in No. 10-932. Peti-tion for Writ of Certiorari, Hein, State’s Attorney forCharles Mix County, et al. v. Yankton Sioux Tribe, etal. (No. 10-932), at 16-33. The County appended theMemorandum Opinion and Order of the Circuit Courtfor the First Judicial Circuit of the State of SouthDakota, County of Charles Mix, in Bruguier v. Class,June 30, 1998, at County App. I, 396-406, the Find-ings of Fact and Conclusions of Law of the CircuitCourt for the First Judicial Circuit of the State ofSouth Dakota, County of Charles Mix, in Bruguier v.Class, August 14, 1998, at County App. I, 407-430,and the Opinion of the Supreme Court of the State ofSouth Dakota in Bruguier v. Class, 599 N.W.2d 364(S.D. 1999), County App. I, 164-198.

In addition, the amici Cities also discussBruguier at length. Brief of Cities Dante, Geddes,Lake Andes, Pickstown, Platte, Ravinia and Wagner,Amici Curiae, in Support of Petitions for Writ ofCertiorari, Dennis Daugaard, Governor of South

Dakota, et al. v. Yankton Sioux Tribe, et al. (Nos. 10-929, 10-931 and 10-932), at 9-20. With reference tothe memorandum opinion and order of the circuitcourt, the amici Cities quote the unequivocal mannerin which the circuit court posed the question:

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When Bruguier was presented in the circuitcourt, the circuit court framed the issue inthat comprehensive manner:

In order to determine whether this crimeoccurred on Indian country as defined in18 USC § 1151, the Court must maketwo separate inquiries. First, the Courtmust determine whether land within the1858 reservation area retains reserva-tion status under 18 USC § 1151(a). Ifthe Court finds this land is a reservationunder 18 USC § 1151(a), there was nojurisdiction to try Bruguier in the SouthDakota Courts. If, however, the Courtfinds this land was not a reservation un-der 18 USC § 1151(a), it must then de-termine whether the allotments in thiscase are Indian country under 18 USC§ 1151(c).

Bruguier v. Class, County App. I, 398 (emphasisadded). Brief of Cities Dante, Geddes, Lake Andes,Pickstown, Platte, Ravinia and Wagner, Amici Curi-ae, in Support of Petitions for Writ of Certiorari,Dennis Daugaard, Governor of South Dakota, et al. v.

Yankton Sioux Tribe, et al. (Nos. 10-929, 10-931 and10-932), at 12.

The County also thinks that a careful considera-tion of the manner in which the circuit court decidedBruguier clearly undermines the "no conflict" posi-

tion. Petition for Writ of Certiorari, Hein, et al. v.Yankton Sioux Tribe, et al. (No. 10-932), at 16-33. TheCounty expected the United States and the Yankton

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Sioux Tribe to disagree. And as of May 9, 2011, theyhave disagreed. For that reason, the County alsospecially emphasizes the way in which the circuitcourt carefully structured the Bruguier decision.

With respect to the first issue, the circuit courtalso specifically noted that:

The Court’s first inquiry is whether this landis within the limits of an Indian reservationunder 18 USC § 1151(a). The State arguesin this case that the Yankton Sioux Reser-vation was disestablished based upon bothDeCoteau v. District County Court for theTenth Judicial Dist., 420 U.S. 425, 95 S.Ct.1082, 43 L.Ed.2d 300 (1975) and YanktonSioux Tribe.

Memorandum Opinion and Order of the Circuit Courtfor the First Judicial Circuit of the State of SouthDakota, County of Charles Mix, in Bruguier v. Class,June 30, 1998, County App. I, at 399 (emphasisadded).

Clearly, the circuit court was correct in conclud-ing that two separate inquiries were necessary todecide the case.

The County also submitted a detailed discussionof the circuit court decision in Bruguier starting withthe memorandum opinion and order. Petition for Writ

of Certiorari, Hein, et al. v. Yankton Sioux Tribe, et al.(No. 10-932), at 28-29. Significantly, the memoran-dum opinion and order was not fact-bound in anyrespect. Rather, the circuit court relied upon the

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decision of this Court in Yankton Sioux Tribe andother venerable decisions. Id. at 29. The County alsoaddressed the definitive findings of fact and conclu-sions of law of the circuit court. Id. at 28-30. Again,the findings of fact and conclusions of law demon-strate that there is nothing in the circuit court opin-ion that can fairly be said to be fact bound.

The opinion of the State Supreme Court inBruguier approaches the question in the same man-ner as the circuit court. As a result, the Bruguieropinion demonstrates the genuine conflict that existsin this case. The argument of the Yankton Sioux Tribein the latest submission dated May 9, 2011, does notundermine this genuine conflict in any significantrespect. Brief in Opposition, Daugaard, et al. v.Yankton Sioux Tribe, et al. (Nos. 10-929, 10-931 and10-932). See also County Petition at 8 pointing outthat the United States and the Tribe both recognizedthat Bruguier did conclude that the Reservation was"wholly disestablished," as they told this Court at thetime in Applications for an Extension of Time, 5 n. 1,United States v. Yankton Sioux Tribe; 4 n.1, YanktonSioux Tribe v. Gaffey; South Dakota v. Yankton SiouxTribe, Yankton Sioux Tribe v. Gaffey (Nos. 99-1490and 99-1683).

4. The status of the 1858 reservation boundary.

a. Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d1135, 1148 (D.S.D. 1998). On a closely related point,the Yankton Sioux Tribe also fails to directly addressthe status of the 1858 reservation boundary. In the

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initial remand, the United States and the Tribeteamed up in convincing the district court to againerroneously recognize the 1858 reservation boundary.2

In this instance, the district court (the same courtthat originally resurrected the 1858 reservation

boundary in the first instance in Yankton Sioux Tribe)

again recognized the 1858 reservation boundary to

somehow encompass a reservation that would consist

of all lands except for those expressly ceded in the

cession agreement construed in Yankton Sioux Tribe.

Such a reservation would have, of course, included

the 230,000 acres of former allotments now held feeby non-Indians with the 1858 reservation boundaries.

2 After Yankton Sioux Tribe, the court of appeals remandedthis case to the district court. The district court consolidated theoriginal action, Yankton Sioux Tribe v. Southern Missouri WasteManagement District (No. 94-4217), with a new action, YanktonSioux Tribe vo Gaffey (No. 98-4042). In the new action, theYankton Sioux Tribe sought declaratory and injunctive reliefprecluding the State of South Dakota and Charles Mix Countyfrom exercising criminal jurisdiction over tribal members. In thenew action, the tribe continued to rely on the 1858 boundariescontrary to the express language in this Court’s opinion inYankton Sioux Tribe.

WHEREFORE, Plaintiff prays as follows: For judg-ment in favor of Plaintiff declaring that all landswithin the original boundary of the Yankton SiouxReservation not ’ceded’ by the 1894 statute betweenthe U.S. government and the Yankton Sioux Tribecomprise the Yankton Sioux Reservation

Complaint for Injunctive Relief and for Declaratory Judgment,Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d 1135 (D.S.D. 1998)(No. 98-4042), at 7 (emphasis added).

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The district court’s resurrection of the 1858reservation boundaries was in spite of the solidarguments presented by the State and the County. Inthose arguments, the State and the County pointedout that this Court in Yankton Sioux Tribe repeatedlyacknowledged and relied on the fact that the 1858reservation boundary had been disestablished. Yank-

ton Sioux Tribe, 522 U.S. at 333, 343, 345-347, 353,set forth infra at 18-19.

The County discusses the disestablishment of the1858 reservation boundaries in detail because origi-nal reservation boundaries are the cornerstone of anyreservation disestablishment argument, as this Courtrecognized in DeCoteau, Rosebud Sioux Tribe, andYankton Sioux Tribe.

b. Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010,1013, 1020-1021 (8th Cir. 1999). On appeal to thecourt of appeals, the County squarely addressed themistaken holding of the district court with referenceto yet another resurrection of the 1858 reservationboundary. Brief for Matt Gaffey, et al., Yankton SiouxTribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999), cert.

denied, 530 U.S. 1261 (2000) (Nos. 98-3893/3894/3896/3900SDSF), at 9-12. The County began by pointingout that this Court clearly resolved the status ofthese boundaries in Yankton Sioux Tribe, contrary tothe argument presented to the district court by theUnited States and the Yankton Sioux Tribe andcontrary to the conclusion of the district court.

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With respect to reservation boundaries, theanalysis of this Court in DeCoteau and Rosebud SiouxTribe informed the Court in Yankton Sioux Tribe.Congress intended the Yankton cession to disestab-lish those boundaries in the same manner as allprevious cessions disestablished original reservationboundaries. In Yankton Sioux Tribe, this Court recog-nized this basic principle. As a result, this Court heldthat the 1858 boundaries were not "maintained."South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,333,343,345-347, 353 (1998), set forth infra at 13-14.

The Yankton Sioux Tribe and the United Statesfaced an almost insurmountable obstacle in the courtof appeals: namely, how to overcome the lack ofhistorical documentation to support their position

and that of the district court that the "Yankton SiouxReservation" could somehow still exist so as to in-clude all lands originally allotted there (over 90% ofwhich are now in fee status and are owned by non-Indians) (232,000 acres of noncontiguous fee lands ofthe total allotted 263,000 acres of noncontiguousland). See Yankton Sioux Tribe, 522 U.S. at 338-339.

In the court of appeals, the Yankton Sioux Tribeand the United States maintained that the conclusionof the federal district court recognizing the continuingexistence of the 1858 reservation boundaries wassound. According to the federal district court, Con-gress intended to maintain the 1858 reservationboundaries intact, and at the same time, Congressalso intended to somehow excise or remove only theceded lands from the 1858 Reservation. Yankton

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Sioux Tribe, 14 F.Supp.2d at 1143. In other circum-stances, this approach could have provided the dis-trict court with some cover regarding the lack ofhistorical documentation to support new reservationboundaries that, alternatively, could have encom-passed all lands originally allotted. But, the 1858boundary conclusion of the federal district court wasfundamentally flawed in every significant respect andalready rejected by this Court in Yankton Sioux Tribe.

The 1858 boundary conclusion of the districtcourt ignored the holding of this Court in YanktonSioux Tribe. With specific respect to the 1858 reserva-tion boundaries, express language in Yankton SiouxTribe clearly refutes the notion that this Court recog-nized the viability of the 1858 boundaries subsequentto the passage of the 1894 Yankton Act:

This case presents the question whether, inan 1894 statute that ratified an agreementfor the sale of surplus tribal lands, Congressdiminished the boundaries of the YanktonSioux Reservation...

States acquired primary jurisdiction overunallotted opened lands where "the applica-ble surplus land Act freed that land of itsreservation status and thereby diminishedthe reservation boundaries." ... In contrast,if a surplus land Act "simply offered non-Indians the opportunity to purchase landwithin established reservation boundaries,"id., at 470, 104 S.Ct., at 1166, then the entireopened area remained Indian country. Ourtouchstone to determine whether a given

20

statute diminished or retained reservationboundaries is congressional purpose.

The 1894 Act is also readily distinguishablefrom surplus land Acts that the Court has in-terpreted as maintaining reservation bound-aries ....In contrast, the 1894 Act at issuehere...

The Yankton Tribe and the United States,appearing as amicus for the Tribe, rest theirargument against diminishment primarilyon the saving clause in Article XVIII of the1894 Act. The Tribe asserts that because thatclause purported to conserve the provisionsof the 1858 Treaty, the existing reservationboundaries were maintained. The UnitedStates urges a similarly "holistic" construc-tion of the agreement ... Moreover, the Gov-ernment’s contention that the Tribe intendedto cede some property but maintain the en-tire reservation as its territory contradictsthe common understanding of the time: thattribal ownership was a critical component ofreservation status ....

[W]e conclude that the saving clause per-tains to the continuance of annuities, not the1858 borders.

[T]he record of the negotiations between theCommissioners and the Yankton Tribe con-tains no discussion of the preservation of the1858 boundaries...

[T]he Commissioners’ report of the negotia-tions signaled their understanding that the

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cession of the surplus lands dissolved tribalgovernance of the 1858 reservation.

Yankton Sioux Tribe, 522 U.S. at 333, 343, 345-347,353 (emphasis added).

All else aside, this Court has made clear that the1858 "reservation boundaries" were not "retained" or"maintained"-"we conclude ... continuance ofannuities, not the 1858 borders." Id. at 347 (emphasisadded). At the very least, this Court decided thatquestion. This Court stated that the "case" presentedthe question of whether "Congress diminished theboundaries" of the Yankton Sioux Reservation andthis Court decided that question. Id. at 333 (emphasisadded). The unresolved issue, as this Court alsoclearly stated, was "whether Congress disestablishedthe reservation altogether." Id. at 358. The districtcourt ignored all of this.

In the end, the court of appeals rejected theargument of the Yankton Sioux Tribe and the UnitedStates, and rejected the 1858 boundaries.

[W]e reverse the conclusion that the originalexterior boundaries of the reservation con-tinue to have effect and that all noncededlands remain part of the reservation ....

The Yankton Court did make a number ofexplicit references to the status of the reser-vation boundaries. The Court found the 1894Act distinguishable from those acts which it"has interpreted as maintaining reservationboundaries." Yankton, 118 S.Ct. at 799. The

22

question before it was described as whetherthe 1894 Act "diminished the boundaries" ofthe reservation. Id. at 793. The Court distin-guished situations in which states acquiredprimary jurisdiction over opened lands and"thereby diminished the reservation bounda-ries" from those in which the entire openedarea remained Indian country even thoughnon Indians were able to purchase land. Id.at 797-98 (citations omitted). In the Commis-sion reports it found evidence that the 1894Act involved alteration of "the reservation’scharacter" and "a reconception of the reser-vation." Id. at 802. Some of the language was"reminiscent" of that used for the diminishedUnitah reservation. Id. ("Congress would’pull up the nails’ holding down the outsideboundary" of the reservation) (citation omit-ted). The Court went on to hold that the say-ings clause of Article XVIII "pertains to thecontinuance of annuities, not the 1858 bor-ders." Id. at 800 (emphasis added). Thesereferences indicated the Court’s understand-ing that the 1858 reservation boundaries didnot remain intact following passage of the1894 Act ....

[W]e conclude that the original exteriorboundaries of the Yankton Sioux Reservationdo not serve to separate Indian country fromareas under primary State jurisdiction.

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1013,

1020-1021 (8th Cir. 1999).

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Incredibly, the Yankton Sioux Tribe mentions

none of this in the submissions to this Court includ-ing the May 9, 2011, Brief in Opposition. Brief inOpposition, Daugaard, et al. v. Yankton Sioux Tribe,et al. (Nos. 10-929, 10-931 and 10-932). Even moreincredibly, the submissions of the United States aresimilarly silent with reference to the manner inwhich this Court decided the issue regarding the1858 reservation boundary, the manner in which the

district court, the United States and the YanktonSioux Tribe subsequently ignored that decision, andthe manner in which the court of appeals thought itput the issue to rest. Brief for the United States,Daugaard, et al. v. Yankton Sioux Tribe, et al. (Nos.

10-929, 10-931, 10-932 and 10-1058). Brief for theFederal Respondents, Yankton Sioux Tribe, et al. v.United States Army Corps of Engineers, et al. (No. 10-1059).

c. In spite of the unanimous rejection of the1858 boundary in this matter by the court of appeals,for the next decade the Yankton Sioux Tribe and theUnited States continued to insist that the 1858reservation boundary was intact or could be used insome fashion to support some argument related to theexistence of an 18 USC §1151(a) reservation. Evennow, in the Conditional Cross-Petition the Tribecontinues to avoid directly addressing the 1858boundary issue, conceding only that this Court reject-ed the argument that would leave the "1858 reserva-tion intact." Conditional Cross-Petition for a Writ ofCertiorari, Yankton Sioux Tribe v. Daugaard, et al.

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(No. 10-1058), at 11 (emphasis added). In otherwords, the Tribe concedes only that the ceded landswere somehow removed from the reservation, withoutactually acknowledging that this Court held that the

1858 boundaries were disestablished, or that thecourt of appeals expressly recognized and reaffirmedthat holding.

As a result, any argument that the Tribe or theUnited States advances to support an 1151(a) Indian

reservation with new reservation boundaries must beviewed in light of the fact that the 1858 reservationboundary was disestablished by Congress by thepassage of the 1894 Act.

Moreover, the acknowledgement of the lowercourts that "the Commission’s reports do not describeany reservation boundaries" further undermines theclaims of the Tribe and the United States that athirty-seven thousand (37,000) acre 18 USC §1151(a)noncontiguous reservation exists, and makes evenless likely that a two hundred sixty seven thousand(267,000) acre noncontiguous reservation exists, as

the Tribe claims. Yankton Sioux Tribe, 188 F.3d at1026. Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d1135, 1148 (D.S.D. 1998).

5. In its May 9, 2011, Brief in Opposition of the

Yankton Sioux Tribe, the Yankton Sioux Tribe focuseson the rehearing Order and the related footnote inthe court of appeals initial decision that affectedthousands of acres of non-Indian fee lands (formerallotments). The State, County and Southern

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Missouri Petitioners and additional amici supportersconvinced the court of appeals to amend that opinionand delete the offending footnote. The Order of thecourt of appeals filed at the same time explains, fromthe court’s perspective, the "facts" leading to thedeletion. Brief in Opposition, Daugaard, et al. v.

Yankton Sioux Tribe, et al. (Nos. 10-929, 10-931 and10-932), at 28-30. The County disputes those facts.

The Yankton Sioux Tribe asserts at length thatthe County’s treatment of the issue demonstratesthat the County recognizes that this case lacks prac-tical importance. Brief in Opposition, Daugaard, et al.

v. Yankton Sioux Tribe, et al. (Nos. 10-929, 10-931 and10-932), at 28-30. The Yankton Sioux Tribe is cerJtainly mistaken. And, in fact, the opposite is true.This issue demonstrates that this case has a highdegree of practical importance. This issue demon-strates that the decisions of the district court and thecourt of appeals, at the very least, lack principledsupport. For this reason, the County will address theamended footnote and related inaccuracies in detail.At the same time, this examination also reaffirms thelegitimacy of the County’s submission in this case.

From the very beginning, the remands in thiscase were expressly limited in scope to the trust landsby the court of appeals. At the time, even the UnitedStates acknowledged that that was the case.

Because the court of appeals could not de-termine from the record or from counsel atoral argument what other trust lands remain

26

within the original boundaries of the Yank-ton Sioux Reservation, the court remandedthe matter to the district court "to make anynecessary findings relative to the status ofIndian lands which are held in trust."

Brief for the United States in Opposition, YanktonSioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999),

cert. denied, 530 U.S. 1261 (2000) (Nos. 99-1490 and99-1683), at 21 (emphasis added).

Nevertheless, the district court and the court ofappeals subsequently ignored the scope of the remandand considered arguments that would place fee landin reservation status.

In an attempt to discredit the County, the courtof appeals conveniently neglects to mention that thedistrict court did not initially pay any attention to thescope of the remand with reference to trust lands.When the district court ignored the scope of the

remand and indicated that fee land could be at issue,the State and County pointed out that the issue wasstraightforward. The focus of the remand should havebeen on the status of the trust lands. In fact, thecourt of appeals had previously explicitly stated thatthe scope of the remand was strictly limited in thisrespect:

On the record before the court, however, wecannot define the precise limits of the reser-vation which remains.

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The current amount of Indian trust land onthe Yankton Sioux Reservation is unclearfrom the record ....

References in the briefs in these cases and injudicial opinions are not always clear aboutwhat is meant by trust land ....

[W]e leave it to the district court on remandto make any necessary findings relative tothe status of Indian lands which are held intrust.

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir.1999) (emphasis added).

Moreover, the County pointed out that even theUnited States, who routinely supported all tribalclaims throughout the years in this litigation (13years), did not support the expansive claim of theYankton Sioux Tribe regarding these fee lands. Thetribal claim ignored the mandate and this trust landlimitation in putting fee lands at issue. The UnitedStates recognized, as did the State and the County,that the focus of the remand was trust land. Thestatus of fee lands, owned primarily by non-Indians,was not within the scope of the remand.

In a primary argument, the United States ex-pressly stated that the remand issue before thedistrict court should be limited to the Indian countrystatus of trust lands. According to the United States:

[T]he Eighth Circuit remanded this matterto the District Court only ’to make any

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necessary findings relative to the status ofIndian lands which are held in trust’

Brief of United States, Yankton Sioux Tribe v.Podhradsky, 529 F.Supp.2d 1040 (D.S.D. 2007) (No.98-4042), at 5-6 (emphasis added).3

The district court disagreed and adopted theTribe’s position that the argument of the Tribe ad-dressing fee land would be considered on the meritsin the remand.

As such, the recognition by the United States ofthe limitations on the scope of the mandate thatsupported the position of the State and County,further supported a difference of opinion on an issueof law, that clearly supported a permissive appealfrom the district court. When the district court re-fused to reconsider or allow a permissive appealregarding the inclusion of fee land within the scope ofthe remand, the State and the County filed petitionsfor writ of mandamus.

The County’s petition for writ of mandamus isreproduced in Respondent County’s Appendix. Peti-tion for Writ of Mandamus (County), Yankton SiouxTribe v. Podhradsky, 529 F.Supp.2d 1040 (D.S.D.2007) (No. 07-1779), Respondent County’s App. at 1-6.

3 The United States did make a number of other argumentsregarding the scope of the mandate. Whether viewed individual-ly or as a group, Petitioners found these other arguments of theUnited States unclear, internally inconsistent, confusing, andwithout substance.

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The State’s petition for writ of mandamus is alsoreproduced in Respondent County’s Appendix. Peti-tion for Writ of Mandamus (State), Yankton SiouxTribe v. Podhradsky, 529 F.Supp.2d 1040 (D.S.D.2007) (No. 07-1779), Respondent County’s App. at 7-36. Together, the petitions for the writs recount thedetails in the scope of the mandate controversy. Id.

The petitions were denied and the district court,

after hundreds of hours of additional research, brief-ing and argument by the parties on the fee landquestion, ultimately rejected the Tribe’s arguments toinclude fee land in reservation status. This rejection,however, was based on the merits, rather than on thescope of the remand. On appeal, the court of appealssummarily affirmed the district court’s rejection onthe merits regarding fee lands.

The next time fee lands were implicated in thisremand was a complete surprise. Astoundingly, thepanel, on its own notion, incorrectly added another7,000 acres of noncontiguous fee land to this uniquereservation because of a misreading of the genericIndian country statute, 18 USC §1151, that nevermentioned the Yankton reservation and was passedin 1948, more than a half century after the YanktonAct. Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951(8th Cir. 2009), County App. I, 104.

In the process, no one was even given an oppor-tunity to brief the 18 USC §1151(a) reservation statusof this fee land: not the State, not the County, not the

United States, not the Yankton Sioux Tribe, and most

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importantly, not the landowners, with lives and feeproperty impacted ("within the limits" of a reserva-tion), without any notice. Moreover, because thedistrict court specifically recognized that the panelhad previously held that allotted lands which hadbeen transferred to non-Indian fee status were notwithin the limits of Yankton Sioux Reservation, theaction of the panel was especially perplexing. YanktonSioux Tribe v. Podhradsky, 529 F.Supp.2d 1040, 1052(D.S.D. 2007). See infra at 30-32 (discussion regard-ing conflicts within the remands in this case).

To date, this fee land is known to include theWagner Community School District, the WagnerEarly Childhood, Inc., the Wagner Fire Protection

District, and numerous non-Indian residential homesand farms. See Arnicus Curiae Brief of Charles MixElectric Association, Inc. and Rosebud Electric Co-operative, Inc. in Support of Petitions for Writ of Cer-tiorari; Brief of Cities Dante, Geddes, Lake Andes,Pickstown, Platte, Ravinia and Wagner, Amici Curiae,in Support of Petitions for Writ of Certiorari; ArnicusCuriae Brief for Colin Soukup, Representing theFrank Soukup Family Limited Partnership, and DanCimpl in Support of Petitions for Writ of Certiorari;Brief of Randall Community Water District, AmicusCuriae, in Support of Petitions for Writ of Certiorari;and Amicus Curiae Brief of Wagner CommunitySchool District No. 11-4 in Support of Petitions forWrit of Certiorari, Daugaard, et al. v. Yankton SiouxTribe, et al. (Nos. 10-929, 10-931 and 10-932). TheState, County and Southern Missouri filed extensive

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petitions for rehearing. The amended opinion onrehearing purportedly removed this fee land from thepanel opinion.

The court of appeals intemperately chastised theCounty for overreacting and for not understandingthat only trust land was really at issue in this case,ignoring the efforts of the County for reconsiderationto limit the issue to trust land, for a permissiveappeal to limit the issue to trust land and for a writof mandamus to limit the issue to trust land, whichthe court of appeals finally conceded was correctwhen it removed the footnote that put fee lands atissue, taking fifteen pages to do so. Order on Peti-tions for Rehearing of the United States Court ofAppeals for the Eighth Circuit, Yankton Sioux Tribev. Podhradsky, 606 F.3d 994 (8th Cir. 2010), CountyApp. I, 52-70.

In this light, the court of appeals had no basiswhatsoever to claim that the County raised a virtualsmokescreen by focusing on the footnote thatsquarely implicated these fee lands before it wasdeleted on rehearing. Id. at County App. I, 54. Theexplanation of the court of appeals in the Order withreference to the intentional action of the court indrafting the judgment completely lacks credibility. Id.at County App. I, 55. The Order referencing "textualasides touching on matters not litigated or decided,but which have possibly been misunderstood," is evenless credible. Id. at County App. I, 56. And the court’sfinal reference to "other extraneous language ... inthe nature of a hypothetical reflection stimulated by

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study of shifting federal Indian policy" does nothingto rehabilitate these sorry excuses for alarming theState, the County, Southern Missouri Recycling andWaste Management District and the affected land-owners, almost all of whom were non-Indians. Id. atCounty App. I, 60.

As this example attests, submissions that claimany holding in this case is somehow tied to specificevidence of congressional intent directed to the Yank-ton Reservation are truly wholly illusory. The conclu-sion regarding resurrecting 18 USC §1151(a)

reservation boundaries around isolated trust allot-ments or other isolated trust lands is more thanhistorical legerdemain. The conclusion of the panelregarding the post 1948 allotments that are now feelands was worse than that. And to have arrived atthese results in the face of Yankton Sioux Tribe isespecially troublesome.

These facts add to the other compelling reasonsin the Petitions to review this case. The court ofappeals has so far departed from the accepted andusual course of judicial proceedings that an exerciseof this Court’s supervisory power is especially appro-priate.

6. There is one redeeming point in this entireepisode involving the two failed attempts to improp-erly include fee lands within the scope of this remandand within the limits of a Yankton Reservation. Thefee land issue serves to highlight the internal con-flicts and internal inconsistencies in the holdings of

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the several remands that still persist. Namely, noeffort has been made in this case to address theinexplicable fact that for some unstated reason allot-ments held in fee for decades prior to the decisions inthis case are and will remain in non-reservationstatus, while allotments still in trust on the date ofthe decisions in this case, are now and will remain forsome unstated reason, within the limits of a reser-vation boundary under 18 USC §1151(a). In otherwords, how do reservation boundaries suddenlyappear to encompass these thirty thousand acres ofnoncontiguous trust allotments on the date of the

decisions, when no reservation boundaries haveencompassed the allotted fee lands at any time sincethe date of the Yankton Act, up to and includingtoday?

The County would submit that the UnitedStates has recognized the problem that this conflictposes with respect to the legitimacy of the opinionsbelow. That was the reason that the United Statespreviously supported the claim of the Yankton SiouxTribe that the Yankton Reservation should somehowencompass all of these fee lands and that the courtof appeals decision to the contrary was mistaken.Significantly, the United States did not retreat fromthat position until their submission of May 9, 2011.Brief for the Federal Respondents, Yankton SiouxTribe, et al. v. United States Army Corps of Engi-

neers, et al. (No. 10-1059).

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Surely, the United States must recognize that ifone allotment is within the Yankton Reservation, allallotments must be similarly situated, whether in feeor trust. Of course, the reverse of this argumentwould also be true. If one allotment is not within theYankton Reservation, then no allotments should bewithin the Yankton Reservation, whether in fee ortrust. As a result, it is self-evident that the conflictseffectively undermine the decision of the court ofappeals with respect to at least thirty two thousand(32,000) of the thirty-seven thousand (37,000) acreYankton Reservation or otherwise another two hun-dred thirty thousand (230,000) acres of non-Indian

fee land must be included within the Yankton Reser-vation (and the United States is clearly opposed tothat alternative).

Moreover, the reluctance of the United States tosupport the Tribe’s argument at this time could betriggered by the fact that the United States wouldthen have to support the Tribe’s claim with respectto the continuing existence of the 1858 reservationboundaries. That would seem to be an especiallydifficult claim to maintain in this Court in light of thedecision of Yankton Sioux Tribe, especially for a

former Solicitor General of the United States.

Given the generic nature of the conclusion and itsapplicability throughout similar areas across SouthDakota and the Country, this internal conflict andinternal inconsistency supports the practical im-portance of the case presented in the Petitions forWrit of Certiorari. It is noteworthy that the Yankton

35

Sioux Tribe takes comfort in the mischaracterizationof the County’s concern regarding fee lands and thescope of the trust land mandate in the order of thecourt of appeals. This is especially so in light of thefact that in the district court the arguments of theYankton Sioux Tribe ignored the scope of the mandateregarding trust land and implicated other fee land inthe same manner as the court of appeals. It is alsonoteworthy that the court of appeals found it neces-sary, in the final analysis, to issue a fifteen pageOrder to explain the deletion of the offending foot-note, and that Order was not filed until after a delayof over twenty-five weeks.

CONCLUSION

When the issue regarding the status of the Yank-ton Sioux Reservation was before this Court in Yank-ton Sioux Tribe, a unanimous Court provided thefederal district court and the court of appeals with anopportunity. It was an opportunity to address alegitimate issue after having previously adopted anabsurd result. The legitimate issue was whether theYankton Sioux Reservation had been disestablished.The decisions of the district court and the court ofappeals since that time do not reflect an appreciationof that opportunity or proper respect for the princi-ples reflected in the decisions of this Court. ThePetitions for Writ of Certiorari in Nos. 10-929, 10-931,

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and 10-932 should be granted and the ConditionalCross-Petition in this case should also be granted.

Respectfully submitted,

PAMELA HEIN SCOTT GREGORY KNUDSONCharles Mix County BRIGGS AND MORGAN, B.A.

State’s Attorney 2200 IDS CenterP.O. Box 370 Minneapolis, MN 55402Lake Andes, SD 57356 (612) 977-8400(605) 487-7441

TOM D. TOBINCounsel of Record

P.O. Box 730422 Main StreetWinner, SD 57580(605) 842-2500tobinlaw@gwtc.net

Attorneys for Cross-Respondent Charles Mix County