NORTHERN CHEYENNE TRIBE v. HOLLOWBREAST

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Argument of Steven Chestnut

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-145, the Northern Cheyenne Tribe against William Hollowbreast and others.

Mr. Chestnut, you may proceed whenever you are ready.

Mr. Steven Chestnut: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

I am Steven Chestnut, counsel for petitioner, the Northern Cheyenne Tribe.

There is one issue before the Court.

That issue arises from the fact that in 1926 Congress enacted a statute, the Northern Cheyenne Allotment Act, which made limited allotments of surface land on the Northern Cheyenne Reservation, withheld minerals under those allotted surface lands from allotment and announced a plan to transfer those minerals 50 years in the future.

In 1968, Congress amended that statutory provision to withdraw the aspect of the statute which announced the plan to make a future transfer of minerals and instead left the minerals in the perpetual ownership of the Tribe.

Precise issue before this Court is did the 1926 statutory plan for the future transfer of minerals, endow the allottees or their heirs or devisees with a vested right to the consummation of that future transfer.

Justice Harry A. Blackmun: First Mr. Chestnut, a good deal depends on how you word the question when you say that all that was done in 1926 was to announce a plan, you pretty much answered the question in your favor, do not you?

Mr. Steven Chestnut: Well, I think that is a fair reading of --

Justice Harry A. Blackmun: But if you ask the question, if you put it in terms of what the statute actually said then the question becomes at least a question, at least a difficult question, does it not?

Mr. Steven Chestnut: Well, I think the statute actually --

Justice Harry A. Blackmun: Statute did not say, we hereby announce a plan.

Mr. Steven Chestnut: No, it did not use the word plan, that’s true Your Honor.

Justice Harry A. Blackmun: It used the word ‘become’.

Mr. Steven Chestnut: That is right.

The statute used the term that the mineral shall become the property of the allottees in 50 years, right.

Chief Justice Warren E. Burger: That shall mutually has some bigger meaning than just an announcement, does it not?

Mr. Steven Chestnut: Well, it can be taken as a term of in futuro and I think that when you take it with the following word ‘become’, I think it is pretty clear that the intent was that the property right would come into existence in 50 years.

Moreover --

Chief Justice Warren E. Burger: It has a mandate in it, is that what you are saying?

Mr. Steven Chestnut: No, I think it has a -- it connotes the concept of future, a future event and I think moreover that the circumstances giving rise to the Act and the legislative history of the Act and the subsequent administrate execution of the Act, more or less contemporaneous with its enactment subsequent to, but contemporaneous clearly show that the full understanding of the statute, by the administrators charged with the duty of enforcing it and by the legislators who enacted it, was that no property right was then being created and I will go into that into my argument.

I think moreover that the facts and circumstances giving rise to the enactment namely the request by the Northern Cheyennes themselves that they receive in Allotment Act, clearly shows that the Northern Cheyennes themselves neither desired nor expected that they would be acquiring a property right to the minerals with the enactment of that act.

Unknown Speaker: I gather Justice agreed with your position initially, did he not?

Mr. Steven Chestnut: Well, the Justice Department at the Trial Court level, District Court, represented one of the named respondents in the case, one of the defendants.

Justice Potter Stewart: Adverse to your position.

Mr. Steven Chestnut: Adverse to our position, yes.

That representation continued through the Ninth Circuit.

Subsequently Mr. Littlebird who was the client of Justice Department, based on his experience on the Reservation, concluded that it would be in the best interest of the Northern Cheyennes for tribal ownership of all the minerals and requested a discontinuance of their representation because of that.

Justice Potter Stewart: But the Interior Department clearly agreed to your position.

Mr. Steven Chestnut: Interior Department supports us entirely and believes not only the Congress had the power to enact the 1968 amendment but moreover that its enactment is vital to the future survival of this Indian Tribe and this unique group of people.

Our position of course is that the 1926 statute created no vested rights in that future distribution and that Congress retained inherent continuing power to amend that aspect of the Allotment Act.

Looking particularly to the four constituent elements of the legislative and administrative process giving rise and surrounding this enactment, one finds, I think complete support for our position that no property right was presently transferred at that time.

Firstly, the circumstances giving rise to the enactment shows that the Federal Allotment Policy itself commenced more or less in the end of the 1870s was formalized in 1887 with the enactment of the General Allotment Act and the basic theory was that the solution to the Indian problem would be to divide up tribal ownership into individual ownership.

And pursuant to that policy individualized allotment acts were enacted for a host of reservations.

The brother reservations of the Northern Cheyenne reservation, the State of Montana received Allotment Act very early under that policy, the Fort Belknap Reservation in 1888, the Flathead Reservation in 1904, The Crow Reservation in 1904, the Blackfeet Reservation in 1907 and the Fort Peck Reservation in 1908.

Yet by 1926 the Northern Cheyenne Reservation was not yet allotted in any sense and had received no allotment statute.

The reasons for this arose from two factors, one, the view of the administrator charged with the responsibility for administering Indian affairs, the Secretary of the Interior, that the Northern Cheyenne people themselves and the Northern Cheyenne Reservation physically was not be suitable for allotment.

The other factor was that by the early 1920s, a severe reassessment of the allotment policy was underway and in fact there was substantial public and official skepticism about the utility of the allotment policy.

In particular, the Department of Interior felt that the Northern Cheyenne people were backward or have a long history of resistance to the white civilization and were not suitable for the “Civilizing Benefits” of allotment.

Moreover the Department felt that the Reservation itself was not physically suitable for allotment because it was a grazing reservation and the allotment theory was really a farming theory.

So there was substantial official resistance to allotting the Northern Cheyenne Reservation.

This coupled with the emergence in the 1920s of the critical reassessment of the Allotment Policy made for offer great resistance within the government to allotting the Northern Cheyenne Reservation.

In fact, the 1926 Allotment Act that was enacted for the Northern Cheyennes was the last original allotment act ever enacted by Congress.

Moreover, these circumstances gave rise to unique allotment act, an act far more limited than any other allotment act which Congress had ever enacted.

The typical pattern for an allotment act in all of these other Montana reservations and the Osage Reservations and throughout the country was basically a substantial distribution of the entire corpus of tribal property.

Provisions were made for ailing ability of distributive property and as a result I might add -- and this is one of the reasons for the official reassessment of the allotment policy, 90 million acres of Indian lands were lost from Indian ownership and in fact today in the State of Montana if one looks around one will find that these allotted reservations are substantially either in white ownership on in white use.

However, the Northern Cheyenne Reservation, because of the unique allotment act, is in 98% Indian ownership, is in 99% Indian use, 85% of the population of the Northern Cheyenne Reservation is Northern Cheyenne and this is directly traceable to the unique and limited nature of that allotment act.

In any event, the Northern Cheyennes wanted, they were concerned that their reservation rested only on an executive order and that they therefore, the tribe as a whole therefore, did not have a vested confirmed property interest in that reservation.

So they wanted a congressional enactment which would confirm tribal ownership of that executive order reservation. Secondly, they wanted limited allotments, so that they have a plot of land on which they could build homes.

Those were the two central functions of the Allotment Act.

The third function was to make sure that the natural resources of that reservation remained in tribal ownership, to be developed for the benefit of all the people.

The allotment plan itself, the allotment statute announced what I maintain as a plan, a statutory plan to transfer the mineral interest under allotted lands at the end of 50 years on the theory that the 50 year period would be adequate for development of that mineral resource.

It turned out because of external facts that the mineral wealth of the Reservation was not developable within that 50 year period and in 1968 Congress amended the act to implement the central intent of the 1926 Congress that the mineral wealth of the reservation inure to the benefit of all the people.

In any event, in February of 1925, the people themselves submitted a petition to Congress requesting the enactment of the Allotment Act.

The petition was submitted to their senator, Senator Thomas Walsh and the petition was very short, it is at Page 56 of the Appendix.

It was signed by 490 members of the Tribe which according to my conservative calculation was 58% of the adult membership of the Tribe at that time.

The cover letter that submitted this petition indicated that absolutely no opposition had been received, had been indicated on the Reservation to the concept of this petition and the petition is very short, in three paragraphs.

The first paragraph says that the people want an allotment of tillable farm land.

The second paragraph which is crucial to the resolution of this case says that these people want the following “To reserve all mineral, timber and coal lands for the benefit of the Northern Cheyenne Indian Tribe said tribe to have absolute control of same.”

That event and that petition is what kicked off the legislative process for the formulation of an act which I submit, petitioners submit, conforms to this expressed desires and expectations of the people on the reservations.

Unknown Speaker: Mr. Chestnut if you were representing the other side and wanted to be sure that they had a vested interest, would you have drawn the statute any differently?

Mr. Steven Chestnut: I did not hear the last part of the question sir.

Unknown Speaker: Would you have drawn the statute any differently?

Mr. Steven Chestnut: Well, I think that what Congress did in the statute was in two places in unprecedented fashion, make very broad reservations of power over the entire allotment plan and the statute.

Other allotment acts like the Crow Allotment Act and these other Montana Allotment Act and the Osage Allotment Act which basically were massive assault on the tribal system, had very specific reservations of power.

And I think the question maybe directed to an argument advanced by respondents that the Northern Cheyenne did not have a specific reservation of power.

The Northern Cheyenne had an overall or encompassing reservation of power which I submit was in complete conformity with the central intent of Congress which was that we are relinquishing trust responsibility, we are not taking part of this reservation apart, we are maintaining the Federal control and we are doing a very little limited thing.

Now with high insight, it might have been good to enumerate every aspect, the federal control that was being retained but on the other hand, I think those things are hard to do.

So I guess --

Unknown Speaker: Well, I guess I do not get an answer of my question.

Mr. Steven Chestnut: Well, I think -- perhaps this will be responsive.

I think it is a matter of law.

The Congress of the United States did not have to reserve any particular power to alter executory unconsummated aspects of that statute.

It is a matter of law and I think Congress was operating in 1926 on the basis of a body of decisions of this Court interpreting allotment for legislation, which established that Congress has inherent authority to alter allotment distributions.

In fact, in the legislative history of the Crow Allotment Act, in a supplement to the Crow Allotment Act, the 1920 provision, there was a debate on the floor of Congress about whether or not it was necessary for Congress to specifically reserve a power to extend a period of the minerals reservation, and the statement on the floor of Congress in connection with that precise question was it is not necessary.

We have inherent authority to do that and I think that is completely supported by the cases.

Unknown Speaker: Somewhere along the line, would you comment on your opposition’s argument about state tax results?

Mr. Steven Chestnut: Yes.

I will do that right now.

The respondents argue that by extending or perpetuating the tribal ownership of minerals, the mineral state in the tribe is thereby subjected to state taxation under a separate federal statute and that that constitutes a divestment of tribal property in favor of the State.

There are number of answers to that which I have set forth in the reply brief, but I will try to recall the basic ones.

Number one, that is really not the issue in this case.

The issue in this case is, did respondents have a vested property right which Congress could not take away?

Respondents by this argument tried to bootstrap themselves basically into this standing of the Tribe and say that the Tribe is losing some kind of vested property right.

Really it is outside the issues in this case, it is inappropriate argument, the basic question here is did the 1968 amendment take away some vested property right of respondents?

Secondly, the tax statute, which is 25 U.S.C. Section 398c, which, respondents argue, would subject this tribal state to state taxation, is in fact not applicable to this Indian reservation.

That Statute is applicable purely to executive order reservations and under a decision of this Court, British-American case, which I believe was decided in 1939, it was held that an Indian Reservation which would base initially an executive order and subsequently receive congressional -- congressionally conformed by statute is not an executive order reservation within the meaning of that tax statute.

Thirdly, I think the argument of respondents is really inherently circular.

If they are contending that the tax statute 398c subjects the tribal mineral state to taxation during this perpetuated ownership period, and that that was a taking, then certainly that statue was a taking when it was enacted in 1927.

That tax statute was enacted in 1927 after tribal title in the entire reservation was confirmed by Congress; the tribe had a whole lot of vested property right at that point.

Therefore, if the statute by taxing tribal lands as a taking, it was a taking at that point and that theory is not applicable either.

Moreover, the Northern Cheyenne Act itself, the Allotment Act specifically provides that leasing of tribal minerals would be conducted under 1938 statute, this was incorporated in a subsequent amendment, and that, we submit, makes this 1927 statute inapplicable.

There are other arguments which I will not go through but we have made them all in our reply brief.

The petition of the Northern Cheyenne people was submitted in 1924 and the legislative process, we submit, conformed completely to the expressed desires and hopes of the people.

The Department of Interior grudgingly responded with an allotment bill which was very limited as I have indicated uniquely limited, specifically reserved minerals from allotment and specifically allotted only surface lands for agricultural and farming purposes.

And finally, upon enactment in the House of Representatives of the final form of the Act, the House’s response over the bill, Representative Levitt indicated that the Act -- the purpose of the Act was to make allotments so that the individual Northern Cheyennes could “have permanent homes and develop their own farms.”

Moreover he indicated that the Act “offers a means for the development of any mineral resources such as oil which is maybe discovered on the Reservation for the benefit of the tribe.”

Lastly, he indicated that the Act “gives the Indians the fullest possible benefit of their natural resources.”

The 50 year provision was a provision, there is no explicit mention of the genesis of that 50 year provision in the legislative record, but I think the fair reading of the entire legislative history is that the purpose of that provision was to ultimately unify title after the mineral reserve was developed.

Finally --

Justice Byron R. White: What did the most recent Act do?

It did more than just to extend the time, did it not?

Mr. Steven Chestnut: The 1968 Act which was the amendment at issue in this case, extended tribal ownership in perpetually.

It eliminated other provision --

Justice Byron R. White: Is there any possibility that the allottee would ever have a unified ownership is eliminated by that?

Mr. Steven Chestnut: That is correct, and this was based -- the initial version of the act in fact --

Justice Byron R. White: So that this is -- this goes farther than just insuring that the mineral interest will be utilized for the benefit of the tribe.

Mr. Steven Chestnut: Well, the --

Justice Byron R. White: Because the mineral interests were fully developed in the next 25 years, the Tribe would still own the mineral interest.

Mr. Steven Chestnut: That is correct.

Now, the reason that it was made a perpetual extension was because the Department of Interior pointed out to Congress that the essential purpose of this amendment was to fulfill the 1926 intent and to provide for full development of the mineral wealth for the benefit of the tribe.

As a result, they indicated that there was -- the intent of Congress was not to transfer anything of substantial value to the allottees.

It pointed out moreover that after a full development -- if a full development period were allowed by that point in time the airship situation on the Northern Cheyenne Reservation, which is already somewhat complicated, 17% of the respondent class is neither Northern Cheyenne and in some cases not Indian.

That if the Reservation were extended for an additional finite period of time, 50 years or 100 years, the airship situation would be impossible.

In view of the fact that nothing of value was intended to be transferred at that point, there was really no utility in imposing upon the Department of Interior and the Bureau of Indian Affairs, the tremendous problem of sorting out the airship difficulties.

So that was the genesis of the perpetual extension.

In short --

Justice Byron R. White: Do you think Congress could have the power to change it back now?

Suppose you prevail in this case, could Congress next year change it back?

Mr. Steven Chestnut: Absolutely, yes.

It would be tribal property and the Congress has complete authority to provide for distribution of tribal property to tribal members under its plenary authority.

Finally, I would like to point to the administrative interpretation of the meaning of this Act immediately after its enactment.

The allotments will consummated after 1926, between 1926 and 1934 by the issuance of allotment patents.

These patents made a blanket reservation of all minerals and natural resources for the benefit of the Tribe.

It contained no mention of the 50 year transfer, no covenant to make a 50 year transfer.

In short, there was no basis from the document itself for the Northern Cheyennes, to believe and in fact they did not believe or expect or hope for that they would be acquiring a property interest in these minerals.

Thus, as a result of the enactment of the 1926 Act and the issuance of the patents, what did the allottees have in the way of indicia of property in this mineral resource.

Plainly and simply, all they had was a statute which announced the plan to, in the future, create a property interest.

They had no power to transfer that future property, that future interest, whatever it may be.

They had no power to profit from it directly by their own transactions.No power to do anything with respect to that future provision in the statute.

Moreover, they had no physical control.

They had no power of enjoyment.

The 1926 Act lodged leasing authority over the entire mineral resource in the Tribal Council and provided that all proceeds of mineral development on the Reservation would inure to the benefit of the Northern Cheyenne people as a whole, would be deposited in the United States Treasury, and would be expended for the benefit of the Northern Cheyennes as Congress might deem expedient.

Lastly, this future interest that these allottees, this expectancy that these allottees had after 1926 was subject to the tribe’s complete power to exhaust that reserve and moreover, to the statutory provision which said that the proceeds of such development of that reserve would inure to the benefit of the tribe.

So, it is not possible to identify any conventional index of property arising from either the 1926 Act or the allotment patents issued subsequently.

Moving now to the strict legal question of what the state of the law with regard to the power of Congress to alter executory unconsummated portions, of statutory plans for the distribution of tribal property to tribal members, the decisions of this Court starting most prominently in 1912 with the decision Gritts versus Fisher and then a whole string of decisions up to the recent decision of United States versus Jim in 1972 consistently and uniformly reaffirm that the statutory plan which contemplates a future distribution is amendable, alterable, repealable by Congress in light of changing conditions and the best interest of the Indians.

That power, in those cases, is founded on this Court’s perception that it is crucial to Congress’s historic and constitutional function to serve Indians and Indian property, that Congress maintain authority over the tribal property of tribal Indians.

And furthermore that that authority is essential for the implementation of federal policy.

It is found that on the notion, a legal notion that no right, no individual right in tribal property arises until the tribal property is actually distributed.

Justice William H. Rehnquist: Of course Congress could, in the 68 Act it simply it said that we are giving the reserve mineral rights to the Tribe and if that is a taking the allottees can sue in the Court of Claims or sue in the District Court.

I take it Congress would have had that part of the fact that they provided that the 68 Act would be void if interest had actually vested, suggest that Congress is perhaps more concerned in that case than it might have been in others as to whether there had are been a vesting.

Mr. Steven Chestnut: Well, I think that is the point which the Ninth Circuit seized upon and which respondents argue that Congress’s formulation of the 1968 amendment indicates some uncertainty on the part of Congress.

I think that first of all, that particular uncertainty at that point does not completely mesh with Congress’s prior view of the statute and this legislative statute.

In 1961, Congress amended this Allotment Act to make very substantial encumbrances upon this expectancy of the allottees.

First of all, it provided that the Tribe could enter into minerals leases which would extend indefinitely.

In effect it took away the right, assuming there was a right, in these allottees to themselves transact independently of the Tribe with respect to this future interest.

Secondly, the statute added the term ‘devisees’ to the class of future beneficiaries of this mineral right.

It provided -- the original Act provided that the future interest will be transferred to the allottees or their heirs, in 1961 Congress said the allottees, their heirs or devisees.

In 1961, therefore, in the case of an original allottee who had died prior to 1961 and asked to whom they had been ascertained an existing heirs.

Those heirs by that 1961 amendment were supplanted by devisees, my point being that --

Justice William H. Rehnquist: It had retroactive application then?

Mr. Steven Chestnut: Absolutely, yes.

Moreover the 1961 statute specifically said that any prior transfers of that future interest by the allottees or their heirs was null and void, and that any future transfers within the remainder in 50 year period would be null and void.

My point is that the conservatism in 1968 was not evident in 1961 and I think the basic reason for the conservatism was a concern that an awareness that this mineral reserve was quite valuable and a concern that United States not in fact be subjected to this kinds of claims of damages which you refered to Mr. Justice.

I think it was a concern to absolutely eliminate any possibility that the United States would be liable in damages and I think that the legislative history indicates that Congress felt it had the power to do it but out of, what I would consider excessive and inconsistent concern, it incorporated this very unusual provision.

Finally, I would like to make the point that this exercise in 1968 of Congress’s inherent power to amend this statutory provision was -- in the facts involved here was entirely -- and proves the premise on which it is based, which is that Congress needs that power.

By 1968, the coal reserve on this reservation had been undeveloped.

The reservation was in the poverty stricken state, the Northern Cheyenne culture was intact, the people were still speaking Northern Cheyenne, they still do as a matter of fact and the reservation was still a home land for a unique fragile culture.

Suddenly the coal became commercially desirable, the entire reservation is underlaying with it.

But shortly 53% of that reserve would be lost through this plan.

In that instance, individual allottees who were lucky enough to rest atop valuable coal would become rich and other allottees, members of the Tribe who were not that lucky would stay poor.

There would be haves and have not on reservation.

Moreover, the ownership situation would have been fractionated into an impossible situation with this complicated airship problem.

There would be impossible marketing conditions, there would be absentee ownership.

You would have in -- 37% of this class consist of people who do not live on the Northern Cheyenne reservation.

The respondents include people in Honolulu, in San Francisco, in Seattle, in Florida, in Bayonne, New Jersey.

These people, under this statutory plan, would be making decisions regarding strip mining of a substantial portion of this reservation.

Finally, the minority, the impact of such development were likely to make the Northern Cheyennes a minority in their own homeland and devastate this virgin reservation which had absolutely no industrial development.

Congress acted n 1968 to prevent to lodge in the Tribal Council which after all is the representative of all the people and moreover which has pursued this 1968 Legislation since 1966 and has for a 10 year period through five administrations on this reservation democratically elected by all the people and here to the notion that it is crucial to the survival of these people that the Tribal Council and the people as a whole have control of this resource.

In light of those circumstances Congress amended the Act, I think this proves the fundamental soundness of what we submit as an established legal principle that Congress must have and does have that inherent authority to alter plans for future distribution.

Thank you.

Justice Potter Stewart: Mr. Chestnut you gave us the specific legislative history of the 1926 Act and pointed out the petition beginning on Page 56 of the Appendix, addressed to Senator Walsh and the later reluctance in somewhat grudging agreement of the BIA and the Interior Department to the allotment, the last allotment made in 1926.

What is the specific history of the 1968 Legislation?

Mr. Steven Chestnut: The specific history of the 1968 Legislation is as I have indicated that the Congress became aware that suddenly this coal reserve was for the first time commercially developable, that the Tribe was going to lose control of it in a short eight years, that there would be a situation of desperate wealth on the reservation as a result you would have people remaining in intense poverty and people suddenly becoming rich.

I think it probably -- it is not explicit in the legislative history, the point I am going to make now, but I think, no, that is explicit, what I have just stated is explicit.

Justice Potter Stewart: Brought to the attention of Congress by the Tribe.

Mr. Steven Chestnut: Yes.

This was brought to the attention of Congress by the Tribe and the legislative history indicates that Congress wanted to spread the benefits of any mineral development equally among all members of the Tribe.

Justice Potter Stewart: Whole national policy had changed vis-à-vis the Indians, had it not?

For many years, beginning on the 1880s I guess enough through 1926-1930, the whole thrust had been to break up the tribes to turn Indians into people under white farmers and then beginning in about 1930, there is a 180 degree change in the whole thrust was to preserve the Tribes and not to try to immigrate Indians into white society.

Mr. Steven Chestnut: Yes.

Justice Potter Stewart: Is that not right?

Mr. Steven Chestnut: That is --

Justice Potter Stewart: And this 1968 Legislation reflected the then current philosophy as the best way to treat with Indians, i.e. by preserving their tribes, their tribal ownership, their tribal organization, their tribal governments and their tribal property by an stark contrast of what had been the policy of the United States for some 50 years beginning in the 1880s, is that right?

Mr. Steven Chestnut: Well, not completely.

I do not think it is accurate --

Justice Potter Stewart: Well, I did not mean is that right I mean is that that correct?

We do not argue that what is right and wrong.

Mr. Steven Chestnut: It is not completely correct in reference to the Northern Cheyenne Act of 1926 which was I think not a product of what had previously been the view that tribal ownership should be distributed as we pointed out I think --

Justice Potter Stewart: Last vestige of it that it was changing then.

Mr. Steven Chestnut: Absolutely, and in fact, it was the last vestige of it and the Act itself daze the earmarks of the fact that this was far different and that --

Justice Potter Stewart: And much more limited in allotment and much more grudging one on the part of the --

Mr. Steven Chestnut: Absolutely, in any attempt to compare this Act and draw inferences about this Act with respect to other prior allotment acts which had the effect of taking a reservation and taking it apart, and distributing and --

Justice Potter Stewart: (Inaudible).

Mr. Steven Chestnut: Absolutely, and providing for competency provision and then taking the tribal treasury and distributing it is totally unsound.

Justice Potter Stewart: Exactly the one phase that is absent is the one that we brothers on the other side emphasized in the all of these other cases and in most of this other similar phraseology, there is always that reservation unless otherwise provided by active Congress and that is absent here.

Mr. Steven Chestnut: Well, I would like to comment on that if I may.

Justice Potter Stewart: That is really that the key in your argument.

Mr. Steven Chestnut: Well, I have looked very carefully at the Legislative history of the genesis of those phrases in other act in particular the Osage Act has a phrase.

One will find and this is detailed in the reply brief, one will find that that proviso was ultimately included and left out of the Osage Act.

The Osage Act was enacted in 1906, it has a proviso of the sort you are thinking.

I think a fair reading of the statute shows that the proviso only applied to a portion in fact, to the coal reserve.

In any event, Congress subsequently extended that coal ownership in 1921 to a date certain without reserving any further power to extend it further.

Nevertheless, in 1929, Congress came along and extended it to yet another date certain and this time re-introduced a proviso that it was incorporating reserve power.

In the Crow Act, there was specific statement on the floor of the House in reference to this proviso that it was not necessary to preserve what was really Congress’s inherent power, and I think the history of the formulation of the Crow Act shows that the proviso was not for the purpose of preserving an inherent power but arose from a disagreement between the house and the senate of whether the 25 years or 50 years was the right initial period.

It arose from a compromise not over a generic inherent power of Congress but over whether or not the initial period should be 25 years or 50 years.

I think that those provisions on their face maybe impressive but when you go behind them, when you take a look at the actual legislative history which gave rise to their creation and when you take a look at the basic act that they arise and then compared to the basic Act of the Northern Cheyenne Reservation, you can give no real credence to that provision.

It is ludicrous frankly to think that Congress intended to relinquish thrust the responsibility in its enactment of the Northern Cheyenne Allotment Act which it did not relinquish in taking apart these other reservations clearly.

Justice Potter Stewart: You would be in a much more comfortable position however would not you, if that language were in this 1926 Act, unless otherwise provided by Active Congress.

Mr. Steven Chestnut: I think my respondents would not have the argument that they seem to rely so heavily on but I emphasize that I think it is not a sound argument.

Chief Justice Warren E. Burger: Very Well.

Mr. Bunch.

Argument of Steven L. Bunch

Mr. Steven L. Bunch: Mr. Chief Justice and may it please the Court.

The issue as stated in this case is whether the 1926 Allotment Act conferred a vested remainder type interest in the allottees and their heirs.

If the 26 Act did create such an interest then of course the 68 amendment is unconstitutional as a divestment of that interest without compensating for it.

Justice Potter Stewart: The 68 amendment is not unconstitutional because by its very term, it is inoperative, is it not, if the Court should decide that there was a Property interest created in 1926?

Mr. Steven L. Bunch: Well, the way it causes was it where it was if they found it to have a vested interest which would have make the government liability --

Justice Potter Stewart: Well, then it would be viably null and void.

Mr. Steven L. Bunch: Right.

Justice William H. Rehnquist: Also if Congress proceeded to simply take it from the allottees, the allottees remedy is only to sue in the Court of Claims for compensation as I understand the law that they cannot say that the Act would have not effect.

Mr. Steven L. Bunch: That is why the Section 2 I believe of the 68 Act was put in there, which specifically required the Tribe to bring this suit and required title in the minerals.

We submit that like -- since Congress was so concerned that they specifically mandated this lawsuit to make sure they were going to get stuck with this judgment.

In the case that they were pretty concerned that they were stepping beyond their lawful powers in passing the 68 amendment and I feel that should be taken into consideration in viewing Congress’s intent in passing the 68 amendment.

Justice John Paul Stevens: Do you think that intent is of greater weight than the intent in 1961.

I think they made quite a point at the fact that the 1961 statute is equally inconsistent with your interpretation of the 1926 Act.

Should we consider that --

Mr. Steven L. Bunch: That is not before the Court; it is not at issue in this case.

Justice John Paul Stevens: But do you think it is relevant evidence of Congressional intent in 1926?

And if not, why is the intent in 1968 any different?

Mr. Steven L. Bunch: The 61 amendment did not divest the allottees of their interest.

Justice Potter Stewart: Did the 61 amendment do, had to do with the timber, did it not?

Mr. Steven L. Bunch: There are several of them --

Justice John Paul Stevens: Well for one thing it specifically operates as I recall it, the allottees to grant -- that is the Tribe to grand leases of duration greater than 50 years.

Mr. Steven L. Bunch: Right.

Justice John Paul Stevens: Now is that consistent with the ownership in the allottees after that period?

Mr. Steven L. Bunch: Not if they were to give the allottees their royalties, I presume once their state became possessory.

I assume there would be analogies to remainderman in a life of estate, a situation or estate for terms of years and that once the remainderman’s interest that attach that they would have to get the royalties from the development.

Justice John Paul Stevens: Let me put it this way.

Do you construe the 61 Act as consistent with your interpretation of the 26 Act?

Mr. Steven L. Bunch: Right, but there are constitutional problems under the 61 Act in broadening the class of people who are eligible and included, I believe devisees, the other ones had to do.

And to that extent, there are constitutional problems with the 61 Act.

Justice John Paul Stevens: The thrust of my question is not to get into a debate about 61 Act, but I am just wondering the extent to which it is appropriate to look at either the 61 Act or the 68 Act when we were trying to identify the congressional intent in 1926.

Mr. Steven L. Bunch: Well, I am not really that familiar with the history of the 61 amendment, however the 68 amendment was considerable concern with the prospect of divesting this interest.

I do not know whether that concern was there and the problem of broadening the class of beneficiaries in 61 Act or not.

So I really cannot comment on the congressional intent of the 61 amendment.

In any way --

Justice Potter Stewart: If the soul inquiry in this case is what congress did or did not do in 1926, is it not?

Mr. Steven L. Bunch: Right, right.

That was they intended in that shall become property of language in Section 3 of the Allotment Act.

We feel that this did not create a vested remainder type interest for several reasons.

First of all it is the legislative history of the 26 Act which I have outlined in pages 33 through 35 of my brief, and if this legislative history indicates the Congress knowingly intended to currently vest the remainder interest in the allottees and their heirs, our construction of this language is that it permitted a currently vesting but delayed possession of the mineral state.

We feel this is soul because most of the congressional considerations of this bill took place in the Senate Committee on Indian affairs and they substantially re-wrote the bill and we feel that if you look at the language of the bill as it went into this committee and as it emerged from the committee you can get an idea of what Congress was trying to do with this bill.

As the allotment of the minerals went into this committee it provided that they will not quote only the surface.

Now this only the surface language could be intended to as the congressional intent that they intended to allot only the surface presently and that they intended to delay allotting the minerals that led -- they intended to delay any vesting of the minerals.

However, the committee specifically rejected that language and they gave this remainder type interest to the allottees in equivocal terms.

There were no contingencies apart from the passage of the 50 year term and that -- it is not really the contingency as such as I understand and anyway they rejected the language which would be fairly strong in favor of the petitioners position and rejected that and gave the allottees their interest in unequivocal terms.

Also I will point out that the grant to the allottees heir is mandatory.

As was mentioned earlier the language says “shall become” and this has been interpreted to be mandatory language and was not leaving the grant to the discretion of Congress.

I submit that the term shall being a future tense term refers to the shall -- the possession being future tense not the vesting being future tense.

Also, it is interesting to compare the Northern Cheyenne Allotment Act with other Allotment Acts as was mentioned earlier, when Congress choose to extend -- to reserve the power to extend tribal ownership, they specifically did so, they expressly included provisions in the grant of the minerals and said, the minerals will be held by the Tribe for X number of the years then passed to the allottees but they always include the all important proviso unless otherwise provided by Congress.

It is for the Crow Reservation, the Fort Belknap Reservation, Blackfeet Reservation, the Osage Reservation, the Standing Rock Reservation and Cheyenne River.

Standing Rock and Cheyenne River are one reservation; the Standing Rock and Cheyenne River Reservation, and all these allotment acts were passed prior to the 26 Allotment Act period issue.

Thus this unless provided otherwise that Congress had become a standard form proviso, whenever Interior or whoever is drafting these bills, wanted to reserve this power, they just included this clause in the statute.

However, they did not do it in this instance.

And we submit that this indicates a congressional wish not to reserve this power and not to delay the ordinary vesting process.

And according to the ordinary vesting process in Allotment Acts, the allottees’ rights and interest in that allotment vest when he files his allotment application in the Bureaus of Indian Affairs Office, and since the remainder interest in the mineral state was allotted as of that time, the rights of the allottee to his remainder interest in the mineral state vested when he filed his application in the local BIA office in Lame Deer or pro-agency or wherever he filed.

The timing of the vesting is according to this Court’s decisions in Arenas versus US, Raymond Bear Hill and allotment rights in Fort Belknap, San Juan County.

Also, in the petitioners’ reply brief, they bring up the point that many of our authorities regarding the allottees vesting of the rights have to do with overriding executive discretion and not congressional statute.

However, there are several of these decisions which do override their Congressional statute which intent to abrogate the allotment rights.

For instance, the allotment rights in the Fort Belknap decision was the Department of the Interior decision in which the Indian allottee had filed application for allotment.

The trust allotment had not been issued and the Wheeler-Howard Act took effect, the Wheeler-Howard Act said no more allotment -- we will have no more allotment of tribal land therefore this was congressional statute which said there would be no more allotments issued..

However, Department of Interior said he had filed his application prior to that time, so despite this provision, the Wheeler-Howard Act, we are going to issue the trust patent in any way.

Also, Raymond Bear Hill was factually similar situation in which he had filed his allotment application, there was a -- and within the pathway Identical, the one here at issues was said that Tribe get the minerals, and the Department of Interior said, well he filed his application before, this act of the fed reserve (ph) in the Minerals of the Tribe, therefore, they would issues the trust patent, giving the Minerals to Raymond Bear Hill.

Also, the allotment rights in the San Juan County is very similar.

Also the petitioner claims that there are broad reservations of power in the 1926 Allotment Act it maybe helpful given in these context they actually set out in its entirety at the beginning of the Appendix to examine the sections, as I mentioned each section and discuss each section.

The first reservation of power is a very broad reservation of power, well, we would also like to mention that on the normal period of vesting that the vesting on the Northern Cheyenne Reservation would have had taken place by 1934 between 1926 and 34 because of Wheeler-Howard Act.

In June of 34 did terminate the allotment rights where we have no exact dates on when these rights vested, it would have had been in that period.

Unknown Speaker: Mr. Bunch, do you concede that during this period the Federal Government could have arranged lease or however you want to call it, for the removal of the coal and substantially depleted it?

Mr. Steven L. Bunch: Oh yes.

During the 50 year period, the Government --

Unknown Speaker: (Inaudible) your arguments about vesting?

Mr. Steven L. Bunch: The allottees would have taken whatever is left over.

During the 50 year period, the Tribe could exploit the coal and in theory they could lose nothing --

Unknown Speaker: So the reminder interest subject to complete depletion.

Mr. Steven L. Bunch: Right.

Unknown Speaker: It is not much of an interest, is it not?

Mr. Steven L. Bunch: Well, that is not the way it turned out.

It is possible that they could have taken nothing by it but --

Unknown Speaker: Vesture of any of remainder interest of wasting asset that you find out all the time.

Mr. Steven L. Bunch: Right, Any oil interest --

Unknown Speaker: Any remainder interest or reversionary interest in wasting asset maybe valueless or may not be but that does not affect the legal validity of the interest, does it?

Mr. Steven L. Bunch: That nullifies the interest as such.

Chief Justice Warren E. Burger: Little bit like having a reversionary interest in an old car unless it is a Rolls Royce that has got an antique value.

There is that possibility.

Mr. Steven L. Bunch: Right! Anyway, the first Reservation of power, the petitioner, claims allows the -- before I mention this I would also like to emphasize that a specific Reservation of power here is necessary that is indicated by the fact that the Interior thought, it was necessary to include this unless provided by the Congress proviso when all you have the statutes.

If it was not necessary to be more surplus each, in fact Interior came back time and time again and it included, would indicate that it was necessary --

Justice Byron R. White: What patents were issued as of the Allottees?

Mr. Steven L. Bunch: Originally trust patents.

Justice Byron R. White: And that was up to 25 years?

Mr. Steven L. Bunch: The trust patent was issued as soon as the application was approved.

Justice Byron R. White: But how long does the trust last?

Mr. Steven L. Bunch: 25 years as the conventional period that has been extended.

Justice Byron R. White: What makes you think the Congress could extend that time?

Mr. Steven L. Bunch: The line of cases dealing with that indicate that, that is not a property right at such but that is a personal attribute of worth ship, Tiger versus Western Investment, the lead case on that --

Justice Byron R. White: What is the difference between that in this mineral interest?

Mr. Steven L. Bunch: Well Choate versus Trapp is the case that we have relied on extensively, and in that case the trust allotments were issued with a, I believer, 25 year of tax exemption.

However, prior to the expeditation of the tax exemption Congress passed the statute reputing the federal tax exemption.

In that case, this Court said the tax exemption is a property right and Congress cannot divest that property right in a trust allotment by subsequent legislation, and in that discussion they specifically reconcile Tiger versus Western Investment.

It said Tiger is a different phase; it does not deal with property rights.

The restrain on alienation was included those because many of this Indians were just fresh and new in that Tribal existence.

They had no concept of white man ways of doing business and serving minerals states and the surface states in all of that sort of thing.

And so they put this restrain on alienation there in order to keep them from being taken advantage of.

Also it hopes that it is settle down during that 25 year period and then become farmers and that whole approach of this restrain on alienation in the long one of this cases which I have cited, is that the restrain on the alienation is simply not considered a property right but, it is enacting the worth ship, it is a personal status.

Justice Byron R. White: So the restrain still remain.

Mr. Steven L. Bunch: On some of the land, it does.

They can apply for the fee patent, and get the fee patent issue, but much of the land is still trust.

Argument of Mr. Justice Marshall

Mr. Justice Marshall: (Inaudible) contract case.

Rebuttal of Steven L. Bunch

Mr. Steven L. Bunch: No, that is one place, we disagree.

As I mention that as a matter of fact --

Rebuttal of Mr. Justice Marshall

Mr. Justice Marshall: That is what petitioner is saying.

Rebuttal of Steven L. Bunch

Mr. Steven L. Bunch: Well, I go to part of the section which courts and member of authorities would disagree with that including, Felix Cohen and this Court in a number of its decisions, and matter of a fact, there was a statement in Choate which specifically disagrees with that.

Alright! On top of Page 23, the Atoka Agreement was a contract and the Court specifically says the question here is whether the parties of the contract whether they have right under the statute.

There has been numerous cases of this Court that have also held that it was statutory rights and property rights, it is not the contract like case.

But anyway, the Section 1 language, it says that subject to the management control of Congress, we submit a simply statement.

This was the initial recognition by Congress of the Northern Cheyenne Reservation.

Thus we submit that they should be interpreted that Congress is saying, we recognize the Northern Cheyenne Reservation as a legitimate Reservation and we are going to assume our normal guardianship duties on this Reservation?.

And the statement of normal guardianship duties is what this management and control language mean on the Section 1.

Also I would remind you that this is an Allotment Act and the very purpose of an Allotment Act is to vest individual rights and real property in individual Indians.

And if you take the opening proviso this management and control language is opening proviso of in Allotment Act which does not specific to minerals, it could be it is a power to aggregate otherwise vested rights could be use to divest any right on that reservation.

So you would have Congress in a curious position of beginning in Allotment Act with proviso which could destroy the very purpose of the Act.

And I submit that you should not impute such a skids away legislative design on Congress without more convincing evidence which is the statute does not present.

There is also a management in control language listed in Section 3 which is right at the very end of Section 3, and, however I would, report, submit to the Court and this does not reach the Allotment Minerals insured issued.

The only Minerals insured issues are the minerals underlying the Allotment land, not underlying the Tribal land.

The Court in Section 3 says that the management and the control is limited to allotted lands or tribal land and since to remained your interest in the Tribal State was allotted, it is not subject to that Section 3 management control language.

This was the Ninth Circuit’s opinions and conclusion on this matter and I submit it should be affirmed.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Bunch.

Mr. Brueggemann

Argument of Lewis E. Brueggemann

Mr. Lewis E. Brueggemann: Mr. Chief Justice and may please the Court.

This real issue here gentlemen, I believe, is he is the Indian of citizen or is he not?

Are we going to permit him to own property or are we not?

I thought the issue was settled by this high Court way back in 1912, in Choate versus Trapp and there has been at least eight more decisions from that time confirming that same position.

It is the respondent’s position and they, I might draw the Court’s attention to the fact, owned only 38% of the surface of the entire reservation, the Tribal Corporation already owned 68% of the minerals.

The Allottees have a mere 38% left, but I am going to direct the Courts attention to the treaty of 1868, which I think is the first indicia of governmental intent as to what the Allottees would seek to take in the treaty which was entered into under threat of force of arms, because Martial Law had been declared.

Colonel Chivington slaughtered the Northern Cheyenne men, women and children at Sand Creek, as a result of that, the Northern Cheyenne and Arapaho retaliated.

In 1865, Martial Law was declared and under threat of force of arms the treaty of 1868 was entered into by the Tribe with the Government.

Under that original treaty, the Cheyenne, to induce them to lay down their arms, were promised a permanent reservation and the Allottees were promise threats of land in the amount of 320 acres.

After that another slaughter took place.

A bare three months after that treaty was proclaimed to be the law of the land, the Cheyenne and the Sioux were again slaughtered men, women and children.

Justice Potter Stewart: That is one of the 1868.

Mr. Lewis E. Brueggemann: Yes sir.

Justice Potter Stewart: The Battle of the Little Bighorn was 1878 or 76?

Mr. Lewis E. Brueggemann: I am speaking of the Battle of Washita.

Justice Potter Stewart: No, but I am asking you about the --

Mr. Lewis E. Brueggemann: Yes sir, Your Honor.

The battle Washita, it followed the --

Justice Potter Stewart: But the Battle of the Little Bighorn was when?

Mr. Lewis E. Brueggemann: 1876.

Rebuttal of Mr. Justice Marshall

Mr. Justice Marshall: June 14th, 1876.

Rebuttal of Lewis E. Brueggemann

Mr. Lewis E. Brueggemann: June 25th, 1876.

Justice Potter Stewart: And the Northern Cheyenne were involved in that, are they not?

Mr. Lewis E. Brueggemann: Yes sir, but that came after the slaughter of Washita came three months following the proclamation of the treaty and they had not yet had an opportunity to select their lands, and it was after that, that Colonel Custer then went to the Black Hills on that expedition, which final resulted in the Battle of the Bighorn in 1876.

Justice Potter Stewart: And that was the a few miles west of where this Reservation is.

Mr. Lewis E. Brueggemann: Yes sir.

Justice Potter Stewart: Very close and very near.

Mr. Lewis E. Brueggemann: Yes sir.

Now, in their original 1868 treaty, the Indians were promise a choice of three places.

One was in Oklahoma, one was elsewhere, but one was in the south eastern tip on Montana, on the Yellowstone, on Otter Creek at Crow Agency.

Justice Potter Stewart: Tongue River get in here?

Mr. Lewis E. Brueggemann: The Tongue River is on the Cheyenne Reservation Your Honor at presently and I believe it was also mentioned there.

But the fact remains that this was the original governmental intent to vest the Indians, the individual Indians which tracts of land in the amount of 320 acres.

Then in 1926 came the Act, giving them only 180 acres.

Finally, the Government said by executive order, President Chester A. Arthur gave them a Reservation.

This was enlarged by President McKinley in 1900.

Finally, in 1926 came the Allotment Act.

Now Congress said, well, we are not going to give you 320 but I will tell you what we will do we would give you 180 acres and they did so under that Act.

It is the respondents’ position that they were entitled to 320, but in the event that the treaty had no significance whatsoever and that is what petitioner alleges, he wants this Court to ignore completely the 1868 treaty, which was the first time the Northern Cheyenne had seeded any lands to the United States of America and here they laid down their arms and seeded over 51 million 210 thousand acres in return for these promises which were never kept.

This is shocking gentlemen.

The 1926 Act at least gave them half of what they promised.

Now, the Tribe says, the Tribal Corporation with 62% of the mineral says, well, we still do not have enough.

So the United States of America and Acts the 1968 amendment to the 1926 Act and says now, we gave you the minerals not for 50 years but in perpetually, that should certainly give you enough time to remove all the minerals.

I have always been talk, you revert the principle, there is nothing that can be made right in practice, if it is wrong in principle.

And there is no way that the petitioner can convince me and I certainly hope cannot convince this Court that this is justice.

If it were remain minerals, I certainly wanted to divide it among someone else and my clients do not want their minerals divide it among the Tribe who had already have 62%.

There are certain rules that can --

Justice Potter Stewart: How do those figures evolve?

You have told us -- you said at the beginning that Tribe self already has 62% of these minerals, and the individual allottees, even if you are right, 38% only, I that right?

And how does that come about?

Mr. Lewis E. Brueggemann: Because the original surface of the Reservation was divided that way.

When the allottees were given their allotments --

Justice Potter Stewart: Only 38% of the surface was ever allotted to them.

Mr. Lewis E. Brueggemann: Yes sir.

That is correct.

Justice Potter Stewart: Is that your representation?

Mr. Lewis E. Brueggemann: Yes sir.

There are certain rules of construction, I think this Court will concede that are applicable to both treaties, statutes and executive orders and one of those is that they must be construed in in pari materia.

In another words, the Court must consider all this things, the treaty, the Statute, the executive orders because they all involved the same subject matter and it is certainly the individual and not the Tribal Corporation that is in most need of the protection of this Court.

In any contract, it is the words of the contract itself that govern and not what may have preceded or what might have been as petitioner would have this Court believe.

He says the policy of Congress was in a flux, about to change, I do not see that this is material at all.

It was not changed.

The policy of the Congress at that time had been the same.

Especially where the Cheyenne were concerned from the treaty of 1868 until the enactment of the 1926 Act itself, and that was to give the allottees an undisputable fee title of the State.

The 1926 Act excluding and ignoring the treaty as petitioner would have this Court do says that the Tribe is to have the minerals for 50 years.

Well the Tribe sat on their rights for 50 years and did nothing and did not dig out these minerals.

And it says, at the end of 50 years that the minerals shall become the property of the allottees, heir and devisees.

Well, he wants it now.

It is this year, he is been waiting for, he wants it now.

There was no qualifying phrase as there were in five other allotment acts that all preceded the Northern Cheyenne Allotment Act..

Starting in 1902 or 06, all the way up until the 1926 Act, five prior acts and petitioner would have this Court believe that the Congress just dropped the phrase.

He just forgot or he added at some play else when he makes reference to not allotted lands but un-allotted lands, tribal lands, yes.

United States retains plenary power over tribal lands, but he did not say that about allotted lands, and here I think is the crucial salian point.

This is where the Congress can be said to have intended just as the Government intended in the original 1868 treaty to convey to the Indian, his minerals.

The Indian has been kept gentlemen, a psychological cripple for many-many years.

He now wants to determine where he is going and when, and if you reverse the decisions of this Court which is clearly indicate that Choate versus Trapp is controlling, you will set the Indian back 200 years.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.