INTRODUCTION TO THE READER:
This inquiry has been initiated as a potential resource to all of those who are directly involved in helping to protect the interest of many thousands of citizens who happen to reside within the historical exterior boundaries of former reservations. These citizens have become the innocent victims of a misplaced Federal Indian Policy which is seeking to revive Indian tribes which were assimilated years ago, and to restore to the tribes many thousands of acres of old reservations which have long since passed into non-Indian and/or non-tribal ownership with fee simple title.
The purpose of the paper is simply to get meaningful and useful information out to those who need a quick reference or guide in the preparation of any actions taken on behalf of non-tribal members in attempting to resolve these complicated issues. The tribes have millions of dollars and the full force of the United States Government backing most of their legal actions against non-tribal members, while these same non-members must struggle for every dollar they can find for their defense. It is hoped that by sharing information, and not having to reinvent the wheel every time we go to court, that we can find some cost effective savings that might at least help to level the playing field.
PART I
In examining, or more explicitly re-examining the definition or meaning of “Indian country”, a rationale needs to be put forth for doing so. The proposed rationale in this discussion is that the body of Indian law continues to evolve, as does the reality of Federal Indian Policy. This continual evolution is based on changes in actual circumstances as well as changes in attitudes and perceptions of society regarding the entire scope of issues presented by Federal Indian Policy and the impact it has on the nation as a whole.
A major underpinning of both Indian Law and Federal Indian Policy is the definition of what constitutes “Indian country.” This definition provides the basis for the scope of jurisdiction included in the application of both Indian Law concepts and Federal Indian Policy. Indeed, “Determining the presence of Indian country ‘is the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands’”. (American Indian Law Deskbook, Second Edition, Conference of Western Attorneys General, p. 36 quoting Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax Comm’n, 829 F. 2d 967, 973 (10th Cir. 1987).
In recent years, various federal agencies have sought to enlarge the scope of tribal jurisdiction by expanding the definition of “Indian country” to include vast geographic areas that have not been historically included in this definition prior to the activist years of the 1960’s and 70’s. For example, EPA has routinely delegated to tribes the regulatory authority for the implementation of environmental laws within the historical exterior boundaries of reservations, holding that everything within the exterior boundary is considered to be “Indian country” as per USC 18, 1151(a). This same interpretation of the definition of “Indian country” has been used to justify the re-establishment of jurisdiction for law enforcement purposes, the expansion of casino gambling, and the permitting of land uses which would not be allowed under state and local laws. It has also been used to justify tribal taxation of non-tribal members on fee lands, and tribal authority over public resources such as water supplies, public sewers, and the provision of electric power. All of these intrusions of tribal governments imposing authority and jurisdiction over non-members and fee simple lands have the effect of depriving non-member citizens of their Constitutional rights. These citizens have no vote and no voice in tribal governments, and are being denied the right to participate in a government that is exercising substantial power over their lives. Therefore, it is imperative to closely examine the basis for which this authority purportedly exists.
Upon examination it appears that the interpretation of the definition of “Indian country” being promulgated by the tribes and their attorneys is one that emerged with several Supreme Court decisions; Seymour v. Superintendent 368 U.S. 351, 1962, Mattz v. Arnett, 412 U.S. 481, 1973, and Solem v. Bartlett, 465 U.S. 463, 1984. These decisions were in line with the policy of the time to re-establish reservations and expand tribal power and jurisdiction. The Supreme Court has since abandoned that totally activist line of reasoning, and is returning to the roots and origins of earlier Indian law, following the reasoning of the established body of law at the time of the codification of Indian country (Alaska v. Native Village of Venetie, 96 U.S. 1577, 1998). Therefore, when the tribes and their attorneys assert that everything located within the historic exterior boundary of a reservation is “Indian country”, and the tribe therefore, has jurisdiction over this entire area, we need to make sure that we do not allow the acceptance of these assertions as unquestioned facts.
The first step in this inquiry is to examine the roots and history of the concept of “Indian country”. A brief and accurate discussion of the history and origin of this concept is found in Felix S. Cohen’s Handbook of Federal Indian Law, Chapter 1, Section 3, pp. 5-8. In his opening sentence Mr. Cohen states, “Although the term ‘Indian Country’ has been used in many senses, it may perhaps be most usefully defined as country within which Indian laws and customs and federal laws and customs relating to Indians are generally applicable. He notes that in limited circumstances “generally applicable” can be without reference to a specific location, such as laws at the time that forbade the sale of liquor to Indians anyplace in the United States. He goes on to say, however, that the “greater part…of the body of federal Indian law and tribal law applies only to certain areas which have a peculiar relation for the Indians and which in their totality comprise the Indian country”. He further notes that “The Indian country at any particular time must be viewed with reference to the existing body of federal law and tribal law.”
Cohen’s history shows that the first legislative use of the term was in the first Trade and Intercourse Act of July 22, 1790, “apparently with the meaning of country belonging to the Indians, occupied by them, and to which the Government recognized them as having some kind of right and title.” As per Mr. Cohen, “The Act of May 19, 1796 contained the first statutory delimitation of Indian country, fixing, according to the then existing treaties, the boundary line between Indian country and the United States.” In these and other Acts of Congress, Indian country boundaries were redefined to conform to the boundary lines as established by each new treaty. An Act of June 30, 1834 provided a definition of Indian country. In a footnote, Cohen notes the following commentary contained in a report from the Committee of Indian Affairs to the House of Representatives which suggests a basis for the definition of Indian country as contained in the Act: “The Indian country …….will include all of the territory of the United States west of the Mississippi, not within Louisiana, Missouri and Arkansas, ……and not within the limits of any state to which the Indian title is not extinguished.” And, “This Act is intended to apply to the whole Indian country, as defined in the first section. …..The effect of the extinguishment of the Indian title to any portion of it, will be the exclusion of such portion from the Indian country. The limits of the Indian country will thus be rendered at all times obvious and certain.” The Supreme Court, in interpreting this statute in 1877 (Bates v. Clark, 95 U.S. 204), 1883, and 1887 had this to say: “It follows from this that all the country described by the Act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress”. Further clarifications stated that land which has been ceded loses its status as Indian country, but not as long as it remains in Trust for the benefit of the Tribe. It only loses Indian country status after it is actually sold. In Donnelly v. United States, 228 U.S. 243, 1913, it was established that executive order reservations were included in the definition of Indian country.
In United States v. Sandoval, 231 U.S. 28, 1913, the court held that Pueblo lands were also Indian country, because they were “distinctly ‘Indian communities’ recognized and treated by the Government as ‘dependent communities’ entitled to its protection.” In United States v. Pelican, 232 U.S. 442, 1914, it was determined that trust allotments were Indian country as long as they remained in trust, and in United states v. Ramsey, 271 U.S. 467, 1926, allotments with restrictions against alienation were also held to be Indian country until such time that the restrictions have been removed. And finally, in United States v. McGowan, 302 U.S. 535, 1938, the Court ruled that “Indian country comprises lands wherever situated which have been validly set apart for the use and occupancy of Indians.” The Court states: “The Reno Colony has been validly set apart for the use of the Indians. It is under the superintendence of the Government. The Government retains title to the lands which it permits the Indians to occupy. When we view the facts of this case in light of the relationship which has long existed between the Government and the Indians—and which continues to date—it is not reasonably possible to draw any distinction between this Indian ‘colony’ and ‘Indian country’.”
Cohen’s book was written in 1942, and it is noteworthy that his review of the origins, as well as the early legislative and judicial history of Indian country, all indicate that there are two requirements that must be satisfied to meet the legal definition of Indian country. One is the necessity of occupation by Indians, i.e. a possessory interest in the lands. The other is the necessity of Federal superintendence over the lands. Without the presence of both of these factors, the land does not meet the legal definition of Indian country. It is also significant that the earliest test of meeting the first requirement was whether or not the Indian title had been extinguished. As time went on aboriginal titles were extinguished, and the Indian territories gradually became reservations. Title issues became more diverse, with some land titles retained by tribes, while others were held in trust by the government, the tribes retaining the rights of use and occupancy. Later came the allotment era, with land allotted in severalty to individual Indians. Again, there were a variety of types of titles to these Indian allotted lands. Among these were trust patents whereby the title was retained in the federal government until the expiration of the trust period. There were also fee patents issued to individual Indians which contained restrictions against alienation until such time as certain conditions could be met. Over time, yet other types of Indian ownership interests evolved, such as the Pueblos of the southwest. These were “Indian communities” with fee simple land held in common, and under the superintendence of the government.
In every instance, regardless of the type of title in the land, the common thread was that to qualify as Indian country, both requirements had to be satisfied; there had to be both Indian occupancy and federal superintendence. When Indians ceded lands to the government, and ceased to occupy them, these lands retained federal superintendence until they were opened for settlement. However, as soon as they were no longer occupied by Indians, they lost their designation as Indian country. Likewise, when lands retained their Indian ownership but were no longer under federal superintendence, these lands also lost their status as Indian country. Pelican and Ramsey held that the lands were Indian country until the expiration of the trust period on trust allotments, and until the restrictions against alienation were released on fee patented land. After either of those occurrences, even if the lands were still in Indian ownership, there was no longer the required federal superintendence over them.
(Note: As an aid for helping the reader to understand the historical backdrop against which the modern day legal concept of Indian country evolved, this inquiry merely quotes the most relevant passages from Cohen’s handbook. Since Cohen is the well respected authority on this matter, his entire chapter on Indian country is incorporated by reference and is included in the Appendix for an in depth analysis.)[1]
By 1948, the multiplicity of titles to Indian lands and the growing body of Indian law led to the codification by Congress of the definition of Indian country. It is codified at USC 18, 1151(a), (b), and (c). It is important to note that this codification was only meant to clarify the then existing body of law. It was NEVER INTENDED to change the definition. (See Alaska). While the Seymour, Mattz and Solem decisions in 1962, 1973, and 1984 respectively, were based on a definition of Indian country which had purportedly been changed by the 1948 codification, except for an apparent misreading by the Court of the meaning of the Federal superintendence requirement, there is no evidence that the intent of Congress had ever been to change that definition. These cases will be discussed in Part II of this inquiry.
For this reason, we need to look at the most recent and most definitive interpretation of Indian country to date, as found in Alaska v. Native Village of Venetie (1998). As noted earlier, the Supreme Court in “Alaska” returned to the traditional origin and history of the body of law surrounding Indian country, and used that as a basis for an interpretation of present day understanding of this legal concept.
The “Alaska” Court stated as follows: “Indian country” is currently defined at 18 U.S.C. 1151. In relevant part, the statute provides: “The term ‘Indian country’ …means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government (not withstanding the issuance of any patent, and including any rights-of-way running through the reservation), (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”
The Court continues by saying that since 18 U.S.C. was enacted in 1948, there had been no reason to interpret “dependent Indian communities” but in the present case “We now hold that it refers to a limited category of Indian lands that are neither reservations nor allotments, and that satisfy two requirements---first, they must have been set aside by the Federal Government for the use of the Indians as Indian land; second, they must be under federal superintendence. Our holding is based on our conclusion that in enacting 1151, Congress codified these two requirements, which previously we had held necessary for a finding of ‘Indian country’ generally.” It is important to note here that the Court is referencing the two requirements which had been codified and which previously were the requirements for a holding of Indian country generally. It does not say that these two requirements need only be present in the case of 1151 (b), which is the subject of this case. It says “Indian country generally”, which means all three categories; (a), (b), and (c). The Court then cites the cases noted above in the discussion from Cohen’s history, noting in particular that in every case cited, the lands are Indian country if they were originally set aside by the Federal Government for the use of the Indians as Indian land, and if they continued to have federal superintendence, irrespective of the exact form of land title in place.
In perhaps the most significant paragraph of this decision, the Court states as follows: “In each of these cases, therefore, we relied upon a finding of both federal set aside and federal superintendence in concluding that the Indian lands in question constituted Indian country and that it was permissible for the Federal Government to exercise jurisdiction over them (emphasis added). Section 1151 does not purport to alter this definition of Indian country, but merely lists the three different categories of Indian country mentioned in our prior cases.” The cases cited are the pre-1948 cases of Donnelly, McGowan, Sandoval and Pelican. The Court does not say, as our tribal attorneys would like us to believe, that anytime there is Federal set aside, as in a reservation, it automatically follows that there must be federal superintendence, thus the tribes and the Federal Government have jurisdiction. In fact it says just the opposite; that there must first be both federal set aside and federal superintendence in order for it to be permissible for the Federal Government to exercise jurisdiction. And the cases cited make it clear that once aboriginal Indian titles are extinguished and Indians cease to occupy the land, or the trust period expires, or restrictions against alienation are released, then the federal superintendence over the land is ended and it is no longer Indian country.
The Court further elaborates on the meaning of “federal superintendence” in meeting the second requirement for a finding of Indian country. It says in part, “the federal superintendence requirement guarantees that the Indian community is sufficiently ‘dependent’ on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question”. The Court continues further, “In each of those (prior) cases the Federal Government actively controlled the lands in question, effectively acting as a guardian for the Indians. See United States v. McGowan, supra, at 537-539 (emphasizing that the Federal Government had retained title to the land to protect the Indians living there); United states v. Pelican, supra, at 447 (stating that the allotments were ‘under the jurisdiction and control of Congress for all governmental purposes, relating to the guardianship and protection of the Indians’); United States v. Sandoval, 231 U.S. at 37, n.1 (citing federal statute placing the Pueblos’ land under the ‘absolute jurisdiction and control of the Congress of the United States’). The Court then notes that “The Tribe contends that the requisite federal superintendence is present because the Federal Government provides ‘desperately needed health, social, welfare, and economic programs’ to the Tribe.” The response of the Court is, “Our Indian country precedents, however, do not suggest that the mere provision of ‘desperately needed’ social programs can support a finding of Indian country. Such health, education and welfare benefits are merely forms of general federal aid; considered either alone or in tandem with ANSCA’s minimal land related protections, they are not indicia of active federal control over the Tribe’s land sufficient to support a finding of federal superintendence.”
In sum, in the “Alaska” decision the Supreme Court clearly defines all types of “Indian country” as having to meet the two requirements; federal set aside of lands for use by Indians, and federal superintendence over those lands. It defines federal superintendence as more than mere federal welfare programs, and it returns to the principles of the original case law that says once the federal superintendence ends, the land ceases to be Indian country. Specifically, these cases cite the fact that trust allotments and fee patents with restrictions against alienation lose the Indian country status when the trust period expires or when the restrictions against alienation are removed. The “Alaska” decision also clarifies that the 1948 codification of Indian country does not change the prior meaning of that legal concept.
Finally, it is worth noting that 1151 (a), which states that “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent and including any rights-of-way running through the reservation” is Indian country, is consistent with the pre-1948 interpretation. 1151 (a) does not specify fee simple patents, it simply refers to reservations where patents have been issued. At that time, as now, there are reservations where there are numerous allotments for which patents have been issued. Many of these patents had unexpired trust periods or still contained restrictions against alienation. As such, they were still subject to federal superintendence, and therefore they were still considered to be Indian country. 1151 (c) references “all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same”. One must assume, therefore, that Indian allotments to which the Indian titles have been extinguished are by inference no longer Indian country. And in any case, land occupied by non-tribal members with fee simple patents are no longer under federal superintendence and cannot possibly meet the second requirement for categorization as “Indian country”.
PART II
Any discussion of “Indian country” is incomplete without at least a brief overview of how it relates to reservation diminishment. U.S.C. 18, 1151(a) directly addresses “Indian country” as applied to reservations. It unequivocally states that all lands located within the boundary of a reservation that is under federal superintendence are “Indian country”. Not directly addressed are lands within historic reservation boundaries that are no longer under federal superintendence. These are the lands that have given rise to numerous court cases that have challenged the jurisdiction of the Federal Government and the tribes, commonly known as diminishment cases. Seymour V. Superintendent is one of the early cases that was decided following the codification of “Indian country in 1948. The Court in this case decided that the S. half of the Colville Reservation had not been diminished because there was no explicit language in the Act opening the reservation to settlement which stated that the reservation had been “vacated” and the land had been “restored to the public domain”. The Court discussed an argument made by the State that the crime was committed on fee patent land owned by a non-Indian, and therefore was not part of the reservation. This is the case most often cited by tribal attorneys when they proclaim that all fee patented land within any reservation boundary is “Indian country”, because the Court ignored the second requirement for meeting the definition of “Indian country”; that the land must be under federal superintendence. Instead, it interpreted the language of 1151(a) to mean that because the land was within the exterior boundary, therefore it was under federal superintendence. This interpretation has been refuted in subsequent cases, and hopefully will one day be put squarely to rest. The Seymour Court complains that, “the existence or non-existence of an Indian reservation, and therefore the existence or non-existence of federal jurisdiction, depends upon the ownership of particular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government. Such an impractical pattern of checkerboard jurisdiction was avoided by the plain language of 1151 and we see no justification for adopting an unwarranted construction of that language where the result would be merely to recreate confusion Congress specifically sought to avoid.” The result of the ruling in this case has since been refuted by numerous cases, including Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 1978, Montana v. United States, 450 U.S. 544, 1981, Strate v. A-1 Contractors, 117 U.S. 1404, 1997, and Atkinson Trading Co. Inc. v. Shirley, 531 U.S. 1009, 2000, all of which address jurisdictional issues on checkerboard reservations. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 1977 and Hagen v. Utah (1994) were both concerned about the “justifiable expectations” of non-Indian residents within exterior boundaries where the State had long been exercising jurisdiction. This concern reflects an acknowledgment by the Court of the reality of the lack of federal superintendence, and a change in the direction of interpretation based on the actual intent of Congress at the time 18 U.S.C. 1151 was enacted.
Mattz v. Arnett (1973), closely followed the line of reasoning presented in Seymour, stating that the allotment provisions alone did not “recite or even suggest that Congress intended thereby to terminate the Klamath River Reservation”. There was one important exception to Seymour. Rather than relying totally on the language in the Act of Congress which opened the reservation for settlement, this Court added another determining factor that could be considered in reaching a decision about termination of a reservation. It stated, “a Congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.” Although the Court ruled against termination in this case, it expanded the concept of what might be considered in potentially reaching that conclusion. This consideration of “surrounding circumstances” opened the door for a return to the historical interpretation of U.S.C. 18, 1151, where federal superintendence is a requirement for a finding of “Indian country”.
Solem V. Bartlett (1984) is the most recent and last of the “diminishment” cases which was decided in favor of the tribes. While this decision was favorable to the tribe, it also gives us a good indication of the change in direction being taken by the Court in deciding the cases directly related to reservation status and “Indian country”. Unlike Seymour and Mattz, Solem clearly demonstrates that the requisite federal superintendence for a ruling of Indian country was in place in all areas of the Cheyenne River Sioux Reservation. It notes that neither sovereign (State or Federal Government) dominated the jurisdictional history of the area, that most of the members of the tribe obtained allotments on the opened area, that BIA and tribal authorities took most responsibility for policing and providing services in the opened areas, that the seat of the tribal government is in the opened area, and that few homesteaders perfected claims on the land. Although the Court did not directly cite the reason for their ruling that this reservation retained its status as “Indian country” as being the continuing federal superintendence, it provided clear evidence that this was the factual reality. This case again reinforces a change in the reasoning of the Court in the application of the factors which are determinative of “Indian country” and reservation status.
The following cases are those in which the Supreme Court ruled in favor of either diminishment or termination of the particular reservation at issue: DeCoteau v. District County Court, 420 U.S. 425, 1975, Rosebud Sioux Tribe v. Kneip (1977), Hagen v. Utah, 510 U.S. 399, 1994, and South Dakota v. Yankton Sioux Tribe (1998). All of these cases involve Surplus Land Acts, and none of them, with the exception of Yankton Sioux, involve allotted lands. All of these cases support the principles established by the Court, that only Congress can change the area or boundaries of a reservation, and the clear intent of Congress to do so must be demonstrated. These cases define the factors that are determinative of Congressional intent. The most probative evidence, per the Court, is the language on the face of the Act of congress that opened the reservation. If the Act includes “cession language” and a “sum certain” payment to a tribe, then there is “almost insurmountable” evidence of diminishment. However, other factors are also indicative and can be considered, including the legislative and judicial history of the area, as well as evidence of present demographics and jurisdictional structure. With the exception of Yankton Sioux, it is not necessary to conduct a detailed analysis of each of these cases. However, it should be noted that in every case “Indian country” is linked to reservation status. If the land which was once a reservation loses its reservation status, it is no longer “Indian country”. Conversely, any lands deemed to be reservation lands are also "Indian country”. We have seen previously that lands outside of reservations can be defined as “Indian country”. This includes land under 1151(b), Indian communities which are not necessarily reservations but meet the requirements of federal set aside for Indian occupation and federal superintendence. It also includes allotments outside of reservations which are still held in trust by the Federal Government, and are still under federal superintendence. However, there are no categories of land located within a reservation boundary which are not considered to be “Indian country”. This leads us to an interesting conclusion that has not generally been considered. In most, if not all, cases where reservation status is at issue, arguments are presented to show that the land is no longer a reservation. If the court agrees, then the reservation is declared to be diminished and the land is declared to be no longer “Indian country”. Perhaps the time has come to take the converse approach, declaring that the land is no longer “Indian country”, and therefore, per 1151(a), since it is not “Indian country”, it cannot be part of a reservation. Thus, the reservation has been diminished to the extent of those lands that are no longer “Indian country”.
In brief, here is the argument for the diminishment of fee simple allotments:
Only Congress can establish a reservation, and only Congress can alter a reservation. (U.S. v. Celestine)
In order to prove diminishment, the intent of Congress is paramount. (Rosebud Sioux v. Kneip)
The intent required is that of the Congress at the time the action was taken, and not some subsequent Congress. (S. Dakota v. Yankton Sioux Tribe)
The Supreme Court has established the parameters for showing Congressional intent as follows: (a) The wording on the face of a Surplus Land Act which includes cession language and sum certain payment to the tribe is “nearly insurmountable evidence of diminishment”. (b) The judicial and legislative history can also be considered. (c) Of lesser significance is the surrounding circumstances of the area in question; what was the history of the area after the passage of the Act, what are present day demographics, and does the area in question retain its “Indian character”?
The treaties and the Dawes Act, which first authorized allotments in severalty of reservation lands, and later the Amendments to The Dawes Act which authorized the sales of allotments and prescribed the regulations regarding these sales are all Acts of Congress which authorize changes in reservations. There is nothing in the body of case law or in legislative actions which indicates that the only Acts of Congress that can change reservation boundaries are Surplus Land Acts. The Court has held that the mere act of allotment alone does not automatically constitute Congressional intent to diminish a reservation. As we have seen, as long as the allotments remain in trust or have restrictions against alienation, they are still considered to be Indian country. And if these same allotments are located within the boundary of a reservation, they are also still considered to be part of that reservation. But when the federal superintendence is terminated by an Act of Congress (the expiration of the trust period or the release of restrictions against alienation), it is reasonable to assume, and is in fact supported in legislative history and the body of Indian law, that the Congressional intent at that time was to end reservation status (Yakima v. Confederated Tribes, 1992).
Allotments in which the trust period ended or restrictions against alienation were removed under various Acts of Congress, with Congressional intent to end reservation status over these lands, and for which fee simple patents were issued to either an Indian or a non-Indian, are no longer Indian country per U.S.C. 18, 1151 (a). They no longer meet the second requirement of the definition of “Indian country”, the continuance of federal superintendence. (Pelican, Ramsey, and Alaska).
If these fee simple allotments are no longer “Indian country”, then they are also no longer part of the reservation, because as per 1151(a), all lands located within the reservation are “Indian country”. The lack of federal superintendency is directly tied to the “surrounding circumstances” prong of the test of diminishment; that is, the lack of federal or tribal jurisdiction in an area, as well as the demographics and land ownership patterns in the area.
Finally, it is important to quickly review the most recent case concerning diminishment and “Indian country”. This case is South Dakota v. Yankton Sioux Tribe (1998) including the remand to the Eighth Circuit (1999). The Court held that the surplus land Act of 1892 diminished the reservation by the land area included as unallotted fee lands. The question of whether or not the remainder of the lands which were either allotted and sold to non-Indians, or remained in Indian ownership, constitute further diminishment, was remanded to the Eighth Circuit Court. The Eighth Circuit made the following observations: “the 1894 Act….intended to diminish the reservation not only by the ceded lands, but also by the land that it foresaw would pass into the hands of the white settlers and homesteaders.” And, “Until the Indian allottees would receive their lands in fee and the trust period over them would end, they could not convey land to non-Indians. It was then foreseen that the trust period over allotments would at some point come to an end…” And further, “the treatment of the Yankton area in the years following the passage of the Act provides further evidence that the nonceded lands retained their reservation status until they passed out of trust.” In its conclusion the court states, “For these reasons, we hold that the Yankton Sioux Reservation has not been disestablished, but it has been further diminished by the loss of those lands originally allotted to tribal members which have passed out of Indian hands. These lands are not part of the Yankton Sioux Reservation and are no longer Indian country within the meaning of 18 U.S.C. 1151. We recognize that the original exterior treaty boundaries of the reservation have not been maintained. See Yankton, 118 S. Ct. at 799-800. We also assume that land now owned in fee by individual Indians is not under tribal jurisdiction unless it is found to be “within the limits of (the) Indian reservation.’ 18 U.S.C. 1151(a). On the record before the court, however, we cannot define the precise limits of the reservation which remains.”
Taking into consideration these two recent Supreme Court decisions, Alaska v. Native Village of Venetie (1998) and South Dakota v. Yankton Sioux Tribe (1998-1999), there is reason to believe that the purported “reservation status” of allotted reservations where a large proportion of the lands now have “fee simple” title, is seriously in doubt. Many innocent citizens who happen to own property within these historic exterior boundaries of former reservations would greatly benefit by a re-evaluation of the definition of “reservation” and “Indian country”, based on these recent decisions. In addition to urging the legal community to thoroughly investigate these issues, we would also like to ask Congress to take meaningful action to resolve the problem. Congress has plenary power over Indian affairs, and therefore has the power to change an unacceptable and unworkable situation. It is not practical for every citizen or group of citizens residing within the boundaries of a “problem” reservation to raise enough money and spend years in court in order to obtain relief.
CONCLUSION
It is hoped that the foregoing will provide some useful information and analyses as an aid in sorting out some of the complicated legal issues regarding land and jurisdiction between tribes and non-tribal members. There is no “silver bullet”, and every case involving a reservation has a unique set of facts and history that must be considered. However, it is imperative as we go forward in attempting to resolve these issues, that we insist upon the application of historical evidence and case law that is accurate and factual. We must not allow the tribes and their attorneys to use distorted analyses of the case law, and incomplete historical facts to reach unacceptable conclusions, and then to use these conclusions for the formulation of new laws and policies which adversely affect thousands of non-member citizens. Instead of acquiescing and “rolling over” to the propaganda, rather let us insist on truth and accuracy and in the words of Todd Beamer, “Let’s roll”.
NOTES FROM THE AUTHOR:
I am a property owner residing in Washington State, within the historic exterior boundaries of the Port Madison Reservation. We have lived here for 23 years, and have been the unfortunate recipients of two Indian lawsuits spanning twenty years (U.S. v. Aam and “The Shellfish Lawsuit-part of the famous “Boldt Decision”).
As a result of these lawsuits, I became a Board member and am currently serving as President of our local property owners group, Association of Property Owners and Residents of the Port Madison Area (APORPMA). I am also currently serving on the Board of United Property Owners. As an involved citizen, and with the advent of the internet, many people like myself, with no formal legal training have become amateur “citizen paralegals” and as such, we acknowledge that our writing and/or speaking may contain flaws, errors and omissions. We only seek to share our interpretations of what we have read so that others may review it, share it with their own legal professionals, and use or modify whatever might be of value that is contained herein. I would also like to acknowledge the assistance of the Vice President of APORPMA, William (Buz) Whiteley, who participated in the research for this paper, and was also my helpful critic and reviewer.
Cindy Rasmussen
P.O. Box 2417
Poulsbo, WA 98370
(360) 598-4454
(360) 779-9442 FAX
PA_RAS@msn.com
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