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Petitions for Certiorari No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- DENNIS DAUGAARD, GOVERNOR OF SOUTH DAKOTA, AND MARTY J. JACKLEY, ATTORNEY GENERAL OF SOUTH DAKOTA, Petitioners, v. YANKTON SIOUX TRIBE AND UNITED STATES OF AMERICA, Respondents. --------------------------------- ♦ --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit --------------------------------- ♦ --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- ♦ --------------------------------- CHARLES D. MCGUIGAN* Chief Deputy Attorney General STATE OF SOUTH DAKOTA *Counsel of Record JOHN PATRICK GUHIN KIRSTEN E. JASPER Assistant Attorneys General 1302 E. Highway 14, Suite 1 Pierre, SD 57501-8501 Telephone: (605) 773-3215 [email protected] Counsel for Petitioners Dennis Daugaard, Governor of South Dakota, and Marty J. Jackley, Attorney General of South Dakota ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTION PRESENTED Whether the Act of 1894 disestablished the Yankton Sioux Reservation. ii PARTIES The caption of the case contains the names of all the parties to the proceeding, except Pam Hein, State’s Attorney of Charles Mix County; Keith Mushitz, Member of the Charles Mix County, South Dakota, County Commission; Neil Von Eschen, Mem- ber of the Charles Mix County, South Dakota, County Commission; Jack Soulek, Member of the Charles Mix County, South Dakota, County Commission; and Southern Missouri Waste Management District. The Yankton Sioux Tribe represents itself and its indi- vidual members. iii TABLE OF CONTENTS Page QUESTION PRESENTED................................... i PARTIES .............................................................. ii TABLE OF CONTENTS ...................................... iii APPENDICES ...................................................... iv TABLE OF AUTHORITIES ................................. vi PETITION FOR WRIT OF CERTIORARI .......... 1 OPINIONS BELOW ............................................. 1 JURISDICTION ................................................... 2 CONSTITUTIONAL AND STATUTORY PRO- VISIONS INVOLVED ....................................... 2 INTRODUCTION ................................................ 3 STATEMENT OF THE CASE .............................. 5 A. History of the Reservation ........................ 5 B. The First Round of Litigation ................... 8 C. The Second Round of Litigation ................ 10 D. The Third Round of Litigation .................. 13 REASONS FOR GRANTING THE WRIT ......... 16 I. The Decisions of the Eighth Circuit Squarely Conflict with the Decision of the Unanimous South Dakota Supreme Court .......................................................... 16 II. The Decision of the Eighth Circuit Con- flicts with Decisions of This Court and Established Indian Law Jurisprudence .... 20 iv TABLE OF CONTENTS – Continued Page A. The Eighth Circuit’s Decision Con- flicts with DeCoteau v. District Coun- ty Court, 420 U.S. 425 (1975), which South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998), Held To Be Squarely on Point ................................ 20 B. The Eighth Circuit’s Decision to Carve Out Three Categories of “Trust Land” as “Reservation” Land Contra- venes This Court’s Decisions, Estab- lished Indian Law Jurisprudence, and Common Sense ............................. 26 III. The Issues Raised by This Case Are Important and Recurring .......................... 35 CONCLUSION ..................................................... 39 APPENDICES Amended Opinion of United States Court of Appeals for the Eighth Circuit, May 6, 2010 .................................................................. App. 1 Order on Petition for Rehearing, May 6, 2010 ................................................................ App. 52 Opinion of the United States Court of Appeals for the Eighth Circuit, Aug. 25, 2009 ............ App. 71 Memorandum Opinion and Order of the United States District Court for the District of South Dakota, Southern Division, Dec. 19, 2007 .............................................................. App. 122 v TABLE OF CONTENTS – Continued Page Opinion of the Supreme Court of the State of South Dakota in Bruguier v. Class, Sept. 1, 1999 .............................................................. App. 164 Opinion of the United States Court of Appeals for the Eighth Circuit, Aug. 31, 1999 .......... App. 199 Memorandum Opinion and Order of the United States District Court for the District of South Dakota, Southern Division, Aug. 14, 1998 .............................................................. App. 250 Order Denying Petitions for Rehearing En Banc and Petitions for Rehearing by the Panel of the United States Court of Appeals for the Eighth Circuit, Sept. 20, 2010 ......... App. 321 Order Granting Extension of Time of the United States Supreme Court, Dec. 14, 2010 ......... App. 323 Treaty with the Yankton Sioux, 1858 ............. App. 324 Agreement with the Yankton Sioux or Dakota Indians, in South Dakota, 1894 ................... App. 327 Map .................................................................. App. 352 vi TABLE OF AUTHORITIES Page CASES Alaska v. Native Village of Venetie, 522 U.S. 520 (1998) .......................................................... 28, 33 Braxton v. United States, 500 U.S. 344 (1991) .......... 19 Bruguier v. Class, 599 N.W.2d 364 (S.D. 1999) .... passim City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) ........................................................ 25 DeCoteau v. District County Court, 420 U.S. 425 (1975) ........................................................ passim McClanahan v. State Tax Comm’n, 411 U.S. 164 (1973) ................................................................ 38 Montana v. United States, 450 U.S. 544 (1981) ........ 29 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ....................................................................... 31 Seymour v. Superintendent, 368 U.S. 351 (1962) ....... 31 South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) ........................................................ passim South Dakota v. Yankton Sioux Tribe, 530 U.S. 1261 (2000) .......................................................... 4, 13 State ex rel. Hollow Horn Bear v. Jameson, 95 N.W.2d 181 (S.D. 1959) ...................................... 31 State v. Greger, 559 N.W.2d 854 (S.D. 1997) ......... 7, 18 State v. Thompson, 355 N.W.2d 349 (S.D. 1984) ....... 18 vii TABLE OF AUTHORITIES – Continued Page State v. Winckler, 260 N.W.2d 356 (S.D. 1977) .......... 18 United States ex rel. Cook v. Parkinson, 525 F.2d 120 (8th Cir. 1975) .......................................... 31 United States v. Pelican, 232 U.S. 442 (1914) ........... 28 United States v. Stands, 105 F.3d 1565 (8th Cir. 1997) ........................................................................ 31 Williams v. Lee, 358 U.S. 217 (1959) .......................... 38 Yankton Sioux Tribe v. Gaffey, 14 F. Supp. 2d 1135 (D.S.D. 1998) (Gaffey I) .................. 2, 10, 11, 24 Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999) (Gaffey II) ............................... passim Yankton Sioux Tribe v. Podhradsky, 529 F. Supp. 2d 1040 (D.S.D. 2007) (Podhradsky I) ................ 1, 13 Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951 (8th Cir. 2009) (Podhradsky II) ............. 1, 13, 14 Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985 (8th Cir. 2010) (Podhradsky III) ............ 1, 14, 15 Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994 (8th Cir. 2010) (Podhradsky IV) .............. passim Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 890 F. Supp. 878 (D.S.D. 1995) .......................................................................... 9 Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 99 F.3d 1439 (8th Cir. 1996) .......................................................................... 9 Yankton Sioux Tribe v. United States Army Corps of Engineers, 606 F.3d 895 (8th Cir. 2010) ................ 35 viii TABLE OF AUTHORITIES – Continued Page STATUTORY REFERENCES 11 Stat. 743 (1859) ........................................................ 2 24 Stat. 388 (1887) ........................................................ 6 26 Stat. 795 (1891) ........................................................ 6 26 Stat. 1035 (1891) .................................................... 21 27 Stat. 120 (1892) ........................................................ 6 28 Stat. 286 (1894) ........................................................ 2 45 Stat. 1167 (1929) ................................................ 8, 33 48 Stat. 984 (1934) ...................................................... 12 18 U.S.C. § 1151 .................................................. passim 18 U.S.C. § 1151(a) ............................................. passim 18 U.S.C. § 1151(b) ......................................... 12, 13, 26 18 U.S.C. § 1151(c) .............................................. passim 25 U.S.C. § 331 ............................................................. 6 25 U.S.C. § 461 ........................................................... 12 25 U.S.C. § 465 ........................................... 4, 30, 34, 36 25 U.S.C. §
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