United States v. Sioux Nation of Indians Motion and Brief Amicus Curiae

    No. 79-639

IN THE
Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA,
Petitioner,

v.

SIOUX NATION OF INDIANS, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF CLAIMS

MOTION AND BRIEF ON BEHALF 
OF AMICUS CURIAE INDIAN LAW 

RESOURCE CENTER

O f Counsel:

Nell J. Newton 
c/o  Catholic University 

School of Law 
620 Michigan Avenue N.E.

Steven M. Tullberg 
Robert T. Coulter 
Indian Law Resource Center 
601 E St. S.E.
Washington, D.C. 20003

Counsel fo r  Amicus Curiae

TH E  CASILLAS PRESS. IN C.-1717 K  Street. N. W.-Washington. D. C.-223-1220



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1976

No. 79-639

UNITED STATES OF AMERICA, Petitioner,

v.

SIOUX NATION OF INDIANS, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF CLAIMS

MOTION FOR LEAVE TO FILE BRIEF 
AS AMICUS CURIAE



The Indian Law Resource Center hereby moves 
the Court, pursuant to Rule 42(3) of its Rules of 
Practice, for leave to file the attached brief as 
amicus curiae in opposition to petitioner's effort 
to reverse in part the judgment below and in 
support of a ruling by this Court which would 
accord full and equal constitutional protection 
to all Indian interests in land. This motion and 
the attached brief are timely filed within the 
time allowed for filing of respondent's brief on 
the merits. Counsel for respondent has declined 
to consent to this filing. Petitioner, the 
United States, has given its written consent.

The Indian Law Resource Center is a non-profit 
charitable and educational organization. The 
Center provides legal assistance and represen­
tation to Indian people and Indian governments 
from various parts of the United States in a 
broad range of matters. The principal focus of 
its litigation and educational work is on the 
protection and support of Indian self-government. 
The Center attorneys regularly work and consult 
with many Indian leaders and Indian rights 
attorneys who share the Center's interest in 
advocating full protection for Indian interests 
under the Constitution and international law.

The proposed amicus brief addresses only the 
issue of what legal standard shall apply to the 
protection of Indian interests in land. No views 
are expressed on any other aspect of the case.
The rule of law which this Court will announce on 
this crucial issue will have broad ramifications 
in United States Indian affairs. This Court's 
ruling will likely affect the rights of Indian 
peoples to the 51 million acres of land they 
presently hold as well as their claims pertaining 
to land and their legal rights in general.

The legal arguments in favor of constitutional 
and international law protection which are advanced



by amicus are not addressed by the parties. In 
the view of the Indian Law Resource Center, many 
others providing legal assistance to Indians 
today, and a growing number of Indian people, 
these arguments are of fundamental importance and 
should, it is respectfully urged, be given this 
Court's careful consideration.

For these reasons, the Indian Law Resource 
Center moves that the Court grant it leave to 
file the annexed brief as amicus curiae.

Respectfully submitted,

Steven M. Tullberg
Robert T. Coulter
c/o Indian Law Resource Center
601 E Street, SE
Washington, DC 20003
(202) 547-2800

Attorneys for Amicus Curiae



TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES----------- ii

INTEREST OF AMICUS CURIAE-----------------v

ARGUMENT------------------- ---------------1

The Interests of Indian Peoples In 
Their Lands Are Entitled To the Full 
And Equal Protection Of The Fifth 
Amendment To The Constitution And
Of International Law---------------------- 1

Introduction--------------------------- 1

The Precedents On Which The Govern­
ment Relies In Its Arguments In 
Favor Of Broad, Extra-Constitu­
tional Congressional Power Over 
Indian Interests In Land Do Not 
Withstand Close Scrutiny Under 
Present Constitutional Law And
International Law------------ ----------2

1. The Cherokee Decisions of the
John Marshall Court---------------2

2. Lone Wolf v. Hitchcock------------7
3. Tee-Hit-Ton Indians v.

United States---------------------9
4. Three Affiliated Tribes of

the Fort Berthold Reservation v. 
United States----------------  12

Conclusion 14



11

TABLE OF CASES AND AUTHORITIES

CASES PAGE

Brown v. Board of Education, 347
U.S. 483 (1954)------------------- 10

Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1 (1831)------------ 2,5

Delaware Tribal Business Committee v.
Weeks, 430 U.S. 73 (1977)--------14

Healing v. Jones, 210 F. Supp.
125, 138 (D. Ariz 1962), aff'd
373 U.S. 758 (1963)--------------- 10

Johnson v. McIntosh, 21 U.S.
(8 Wheat.) 543 (1823)------------- 2

Lone Wolf v. Hitchcock, 187 U.S.
553 (1903)-------- ----------------7

Tee-Hit-Ton Indians v. United
States, 348 U.S. 272 (1955)------- 9

Three Affiliated Tribes of the 
Fort Berthold Reservation- .̂
United States, 390 F.2d 686
(C.C1. 1968)---------------------- 12

Worcester v. Georgia, 31 U.S.
(6 Pet.) 515 (1832)------- --------2,4



Ill

OTHER AUTHORITIES PAGE

Burke, "The Cherokee Cases: A Study 
in Law, Politics and Morality,"
21 Stan. L. Rev. 500 (1969)----------- 4

Cohen, Felix, Handbook of Federal Indian 
Law (1942)--------------------------- 6

Cohen, Felix, "Indian Wardship: The 
Twilight of a Myth," The Am. Ind,
Vol. VI, No. 4 (Summer 1953)--- -------6

Curtin, Philip D., Imperialism, ed.
(N.Y. 1971)------------------ ---------6

Foreman, Grant, Indian Removal (1932)----- 3

Frankfurter, F., Of Law and Life and 
And Other Things That Matter,
143 (1967)--- -------------------------6

International Legal Authorities Per­
taining to Land Rights of 
Indigenous People--------------------- 11,12

Otis, D.S., History of the Allotment
Policy, Hearings on H.R. 7902 Before 
the House Comm, on Indian Affairs,
73d Cong., 2d Sess., pt. 9 (1934)-----7

Taylor, T., The States and Their Indian 
Citizens, U.S. Dept, of the Interior 
(1972)--------- 13

Vattel, E., The Law of Nations or the 
Principles of Natural Law Applied 
to the Conduct and to the Affairs 
of Nations and of Sovereigns 
(Washington, 1916)-------------------- 5



IV

Washburn, W., The Assault on Indian 
Tribalism: The General Allotment
Act of 1887 (1975)------------- -------7

Wilkinson $ Biggs, "The Evolution 
of the Termination Policy,"
5 Am. Ind. L. Rev. 139 (1977)--------- 10

William Wirt Papers (Library of
Congress Manuscript Collection)------- 4



V

INTEREST OF AMICUS CURIAE

The interest of the Indian Law Resource 
Center in this case arises out of our efforts to 
protect and advance the constitutional and legal 
rights of American Indians. The Center and its 
legal staff share this interest with other Indian 
rights organizations, Indian people, and non- 
Indians concerned about the rights of Indians.
Ranked at the bottom of almost every measure of 
social condition, Indians need the ameliorative 
protection of the constitutional and legal rights 
which have served the interests of all other 
groups and individuals.

This amicus brief does not address all of the 
issues presented by this case. The interest of 
the Indian Law Resource Center does not extend to 
the monetary award or the attorneys's fees. The 
only issue which we address pertains to the law 
governing the relationship between the United 
States and the interests of Indian peoples in their 
lands. A fresh ruling by this Court on that impor­
tant issue will have dramatic impact on United 
States-Indian relations for the forseeable future.

We are concerned that nothing less than a 
full measure of constitutional and legal protection 
be accorded all Indian interests. If justice is to 
be done, this Court must establish that the interests 
of Indian peoples are included squarely within the 
Constitution's fundamental command that all persons, 
regardless of race, ethnic origin or nationality, 
are entitled to equal protection and due process of 
law.



1

The Interests of Indian Peoples In Their Lands 
Are Entitled To The Full And Equal Protection Of 
The Fifth Amendment To The Constitution And Of 
International Law.

Introduction

At the core of the government's argument in 
the present case is the position that Indians and 
their lands should not be accorded the complete 
and equal protection of the Fifth Amendment. The 
government asks, once again, for this Court to 
deny Indians constitutional protection and to 
acknowledge the "plenary power" of the political 
branches of government. Instead of addressing 
the scope of Indian land rights within the con­
text of accepted constitutional and legal norms, 
the government asks this Court to defer to the 
political authorities by rendering a decision 
which would in effect give unfettered power to 
Congress to dispose of Indian interests in land. 
Should the government's argument prevail, this 
Court would signal that Indian peoples must resign 
themselves to the second-class legal status which 
they have struggled to overcome since the founding 
of our nation.

The concept of constitutionally protected 
rights for Indian tribes or nations is a relatively 
recent development in United States law. For most 
of the history of this nation, Indians have been 
subject to the political and military authority 
of the executive and legislative branches of 
government. The judiciary has seldom been force­
ful in the exercise of its constitutional 
responsibility to provide a firm check and balance 
in Indian affairs. The plight of Indian peoples 
today is attributable in part to this past 
failure of the United States judiciary to provide 
the same unflinching constitutional protections 
to Indian interests which it has accorded all



2

others.

This Court should now fix the future course 
of federal Indian law by applying constitutional 
standards which will check the political winds 
which have in cycles eroded the land rights of 
Indian peoples. The present case provides an 
opportunity for the Court to honor the principle 
first eloquently expressed by Chief Justice John 
Marshall that law, not political expediency, shall 
govern how this nation deals with Indian peoples.

An examination of the cases which are most 
significant to the Court's review shows that the 
law on which the government relies is fatally 
infected with racially prejudiced assumptions of 
the past, is inconsistent with Fifth Amendment 
law as it has evolved to protect a broad range 
of interests of all other classes and individuals, 
and is violative of the rights of indigenous 
peoples as established in international law of 
the post-colonial era.

The Precedents On Which The Government Relies In 
Its Argument In Favor Of Broad, Extra-Constitu­
tional Congressional Power Over Indian Interests 
In Land Do Not Withstand Close Scrutiny Under
Present Constitutional Law And InternationalLaw.

— —

1. The Cherokee Decisions of the John Marshall 
Court

The early Indian rights decisions of Johnson v. 
McIntosh, 21 U.S. (8 Wheat.) 543 (1823), Cherokee 
Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and 
Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832) 
were cast in an era of rapidly increasing United 
States military and economic power. In the course 
of this development it became apparent that this 
young nation had not clearly resolved whether its 
Indian affairs would be governed by law or by



3

political power. The Cherokee cases are most 
illustrative of the early legal contests over 
that issue. These Marshall Court decisions 
provide helpful direction to the present Court's 
consideration of this case, the most recent mani­
festation of the continuing struggle between law 
and politics in Indian affairs.

In the early 1800's the legal rights of the 
Cherokees were threatened with extinction by the 
State of Georgia and the administration of 
President Andrew Jackson who pressed the cruel 
policy of Indian Removal against them.* The ques­
tion of the nature of Cherokee legal interests in 
their lands was brought to this Court at a time 
when Jackson supported Georgia and the nullifi- 
cationists in their efforts to seize all Cherokee 
lands.

The John Marshall Court squarely faced the 
enormous political pressures which were brought 
against the Cherokees and the Court, and it upheld 
the rule of law. The Court's opinions in favor 
of Cherokee rights rely heavily on the Constitution 
and on international law as expressed by Emer de 
Vattel and other leading scholars of that time. 
Although Marshall anticipated that his decision 
in the Worcester case would lead to a major 
confrontation with the nulliticationists and 
Jacksonians who stood fast against Indian rights,

Grant Foreman, Indian Removal (1932).



4

the Court did not shrink from its judicial duty.
The Marshall decision upheld Indian treaty rights 
and recognized Indian rights to their homelands.

[T]he several Indian nations [exist] 
as distinct political communities, 
having territorial boundaries, 
within which their authority is 
exclusive, and having the right 
to all the lands within those 
boundaries.

31 U.S. (6 Pet.) 556

The Marshall Court rejected the view, expressed 
in a separate opinion of Justice Johnson in the 
Cherokee Nation case, that Indians were a conquered 
subject people who had no ownership rights to the 
lands they occupied, that they were a sort of

A
Although President Jackson reportedly 

threatened not to enforce the Marshall Court's 
Worcester decision, the final legal confrontation 
between the Court and the President never material­
ized. The pro-federalist missionaries and their 
attorney, William Wirt, quietly arranged to accept 
a pardon from the Georgia governor after President 
Jackson reversed his position and publicly opposed 
nullification. The case was thereby mooted and 
the Cherokees were left to suffer the infamous 
"Trail of Tears" without further judicial protec­
tion.

Burke, "The Cherokee Cases: A Study in Law,
Politics and Morality," 21 Stan. L. Rev. 500 
(1969); The William Wirt Papers (Library of 
Congress Manuscript Collection).



tenant-at-will who were only temporarily secured 
in their lands pending further disposition of 
their rights by Congress. 30 U.S. (5 Pet.) at 
27.

Viewed in its historical context, the Marshall 
Court’s decision was a courageous and humanitarian 
effort to bring the governance of Indian affairs 
within the protection of high legal principles.

In his Cherokee opinions John Marshall did, 
however, adopt much of the prevailing racial 
theory of his time. Laced through the Court's 
opinions are many characterizations of Indian 
peoples which by today's standards are demeaning, 
racially prejudiced and unspeakable. The assump­
tion of white, European racial superiority 
similarly infected the writings of Emer de Vattel 
and other great international legal theorists of 
the time.* The enlightened, "scientific" belief 
of the early 19th Century was that Indians and 
other non-white "natives" or "savages", were 
dependent "lower races" who might, possibly, 
through extensive training, become civilized like 
whites. Marshall stated that belief in Cherokee 
Nation:

[Indians] are in a state of pupilage.
Their relation to the United States 
resembles that of a ward to his 
guardian.

30 U.S. (5 Pet.) 16

Vattel, The Law of Nations or the Principles 
of Natural Law Applied to the Conduct and to the 
Affairs of Nations and of Sovereigns (Washington, 
1916), translated from original edition of 1758 
by Charles E. Fenwick.



6

The guardian-ward relationship urged on this 
Court by the government in the present case has 
grown from this dictum. These same words have 
been echoed in many court decisions and in the 
legislative history of every confiscatory act 
passed by Congress to the detriment of Indians.
As Felix Cohen* wrote, the concept of Indians as 
wards subject to Congressional power "is utilized 
in two general ways: (1) as a justification for 
congressional legislation in matters ordinarily 
within the exclusive control of the states, and 
(2) as a justification for federal legislation 
which would be considered 'confiscatory' if applied 
to non-Indians." Cohen, Handbook of Federal Indian 
Law (1942), p. 170. Every taking from Indians has 
been couched in terms of moral duty, for the "best 
interest" of the United States' Indian "wards".

By the middle of the 19th Century this idea 
of guardianship or trusteeship, with its emphasis 
on the non-competent status of the "natives", 
became the dominant concept in the law of the 
French and English colonial empires as well. The 
mother country's trusteeship duty to civilize and 
its concomitant power to limit the legal rights 
of its colonial subjects was the governing 
principle of European empires until after World 
War I. See, Imperialism, Philip D. Curtin, ed.
(N.Y. 1971).

*Justice Felix Frankfurter described Cohen's 
work as "an acknowledged guide for the Supreme 
Court in Indian litigation." F. Frankfurter, Of 
Law and Life and Other Things That Matter, 143 
(1967). Among Cohen's last writings is "Indian 
Wardship: The Twilight of a Myth," The American 
Indian, Vol. VI, No. 4 (Summer 1953), pp. 8-14.



7

The government's argument in this case, that 
Indian peoples are "incapable wards", has evolved 
over time in tandem with this unfortunate, 
imperial development. It is most remarkable that 
the government urges again on this court a rule 
based on this demeaning relationship, a never- 
ending racial pupilage. The proposed rule would 
continue to justify extra-constitutional extin­
guishment of Indian interests in land and would 
leave Indians without the most important legal 
protections afforded to all others.

2. Lone Wolf v. Hitchcock

Lone Wolf v. Hitchcock 187 U.S. 553 (1903) was 
decided during the Allotment era, one of the most 
tragic periods of United States Indian affairs. 
Under the General Allotment Act of 1887, Congress 
had determined to "break up the tribal mass," to 
end Indian communal ownership of lands by forceably 
turning Indian families into small farmers with 
designated 160 acre allotments, and to thereby 
lead Indians to a higher level of civilization. 
During this era, which lasted until about 1930, 
two thirds of all Indian lands were taken. 
Designated as "surplus" lands held in "trust" by 
the United States, these lands were transferred 
to white settlers.*

*
See, e.g., D.S. Otis, History of the Allot­

ment Policy, Hearings on H.R. 7902 Before the 
House Comm, on Indian Affairs, 73d Cong., 2d Sess., 
pt. 9 (1934); Wilcomb E. Washburn, The Assualt on 
Indian Tribalism: The General Allotment Act of
1887 (1975).



8

Acting in what it considered at the turn of 
the Century to be the best interest of Indians, 
Congress disposed of Indian lands, Indian juris­
diction, Indian religion and culture as it saw 
fit, without significant interference from the 
judiciary. At that time in history, this United 
States policy was in accord with the policies of 
most governments of America and Europe. Such 
interference with the affairs of non-white peoples 
was widely believed to be completely consistent 
with Christian duty and the "white man's burden".

A review of the text of the Lone Wolf opinion 
and its historical context gives great support to 
the conclusion expressed in the concurring opinion 
below of Judge Nichols:

The day Lone Wolf was handed down,
January 5, 1903, might be called 
one of the blackest days in the 
history of the American Indian, the 
Indians' Dred Scott decision. Cp-40)

The Lone Wolf opinion gave free reign over 
Indian affairs to the political branches of govern­
ment. Its effect was to make hollow pronounce­
ments of the high principles of the John Marshall 
Court. As the dissent below states,

The sense of the opinion seems to be 
that Indian tribal property is simply 
not protected by the fifth amend­
ment. It may be that the thought 
then was that due process protects 
only "persons" and "private property" 
and that Indian tribes were not 
"persons" and Indian tribal property, 
owned communally, was not private 
property.

Lone Wolf held that it was within



9

Congress' constitutional power 
to dispose of tribal property 
without regard to good faith or 
the amount of compensation, (p. 53)

Without conceding this analysis of the holding 
of Lone Wolf, it is fair to state that the sense 
of that opinion is diametrically opposed to con­
stitutional protection and, indeed, to almost any 
other legal protection for Indian interests in 
land. The linchpin of the Lone Wolf case is the 
political question doctrine. By deferring to 
Congress and the President, the Lone Wolf Court 
assured that political expedience rather than law 
would be paramount in United States Indian affairs.

Lone Wolf must be read today in the light of 
the Court's evolving standards of fairness and 
constitutional protection for all. The decision 
cannot today support the broad denial of Indian 
legal rights which the government urges.

3. Tee-Hit-Ton Indians v. United States

During the fifty years after Lone Wolf, several 
decisions involving Indian land rights were ren­
dered by this Court, usually in litigation author­
ized by special jurisdictional acts which gave 
some limited relief to Indian peoples who were 
otherwise deprived of access to the courts. As 
noted below, these precedents are difficult to 
harmonize. But throughout this era the dominant 
legal theme remained the "sense" of Lone Wolf, the 
plenary power of Congress over Indian land rights.

This theme was most forcefully stated in Tee- 
Hit-Ton Indians v. United States, 348 U.S. 272 
(1955). This decision, rendered at the height of 
the Termination era, another infamous period of



10

anti-Indian legislation*, established that no 
constitutional protection attached to "Indian 
title" or "aboriginal title" lands. Only "recog­
nized title" lands -- lands expressly acknowledged 
by Congress to be permanent Indian lands -- would 
receive any Fifth Amendment protection. Under the 
extinguishment doctrine of Tee-Hit-Ton, most 
Indian interests in lands became subject to arbi­
trary, uncompensated extinguishment by Congress. 
Indians living where their ancestors have lived 
for a thousand years would, under Tee-Hit-Ton, be 
deemed "no more than tenants at will of the Govern- 
ment." Healing v. Jones, 210 F.Supp. 125, 138 
(D.Ariz. 1962), aff'd 373 U.S. 758 (1963). The 
minority view in t h e Cherokee cases seemed to 
prevail.

In considering the historical context of the 
Tee-Hit-Ton case it is instructive to recall that 
in 1955 the Court had just begun the monumental 
task of removing racial prejudice from the body 
of United States law. Brown v. Board of Education 
347 U.S. 483 (1954). The Tee-Hit-Ton decision 
was an anomaly in the early stages o f a  legal 
revolution which has made due process and equal 
protection a present reality for millions who were 
previously deprived of these fundamental rights.

It is also instructive to note that Tee-Hit-Ton 
was decided in the twilight of the colonial era, 
at the inception of the post-World War II indepen­
dence movement which has changed the political 
complexion of the world. Within a few decades one 
billion "colonial subjects", "natives", "aborigines" 
and "wards" from the "lower races" became citi­
zens entitled to self-determination within their

&
See, e.g., Wilkinson 8 Biggs, "The Evolution 

of the Termination Policy," 5 Am. Ind. L. Rev. 
139 (1977).



11

own nations. This rapid transformation of politi­
cal relationships has been accompanied by a 
similarly rapid change of international law. The 
post-colonial world community has emphatically 
renounced the legal theories of Vattel and the 
other 18th and 19th Century scholars who gave 
legal sanction to the subjugation of one people 
by another. The legal right of self-determination, 
including the right to full and equal protection 
of the land rights of indigenous people, has 
supplanted the colonial trusteeship in inter­
national law.* The governing international law of

*The United States is bound to recognize and 
respect the right of every individual and group 
to own property under article 17(1) of the Uni­
versal Declaration of Human Rights; article 5(d)
(v) of the International Convention on the 
Elimination of All Forms of Racial Discrimination, 
which the President signed on September 28, 1966 
and submitted to the Senate for ratification on 
February 23, 1978; and article 21(1) of the 
American Convention on Human Rights, which the 
President signed on June 1, 1977 and submitted to 
the Senate for ratification on February 23, 1978. 
The United States is bound to recognize and res­
pect the right of every individual to be free from 
arbitrary deprivation of property without compen­
sation under article 17(2) of the Universal 
Declaration of Human Rights and article 21(2) of 
the American Convention on Human Rights. The 
United States has an international legal obli­
gation to refrain from engaging in acts or 
practices of racial discrimination against per­
sons or groups of persons under article 2 of the 
International Convention on the Elimination of All 
Forms of Racial Discrimination; article 1 of the 
United Nations Charter; article 26 of the Inter­
national Covenant on Civil and Political Rights, 
which the President signed on October 5, 1977 and 
submitted to the Senate for ratification on



12

the present era is inconsistent with the Indian 
wardship announced in the Cherokee cases and with 
the denial of fair, equal legal protection seeming­
ly approved by Lone Wolf and Tee-Hit-Ton. To the 
extent that those decisions relied explicitly or 
implicitly on the science and legal prejudice of 
colonial era law, they are legally insupportable 
today.

4. Three Affiliated Tribes of the Fort Berthold 
Reservation v. United States

The Fort Berthold case, 390 F.2d 686 (C.C1.
1968), was an effort of the Court of Claims to 
reconcile the colonial era cases on "natives'" 
rights with latter 20th Century concepts of due

i

(continued from previous page) February 23, 1978; 
and Basket I, principle VII of the Helsinki Final 
Act. The United States is bound to recognize 
and respect the right of every individual to 
receive equal treatment and protection under the 
law without discrimination as to race under 
article 55 of the United Nations Charter; article 
26 of the International Covenant on Civil and 
Political Rights; article 7 of the Universal 
Declaration of Human Rights; Basket I, principle 
VII of the Helsinki Final Act; and article 24 of 
the American Convention on Human Rights. It is 
also noteworthy for the present discussion that 
the United Nations in 1960 expressly declared an 
end to the "pupilage" or trusteeship justifi­
cation of European colonial empire:

Inadequacy of political, economic, 
social, or educational preparedness 
should never serve as a pretext for 
delaying independence.

Declaration of the U.N. General Assembly on the 
Granting of Independence to Colonial Countries 
and Territories (December 14, 1960).



13

process, equal protection and fundamental fair­
ness. That effort to reconcile these disparate 
views fails, and, as the dissent below states, 
the proposed Fort Berthold standard "makes a 
mockery out of the Fifth Amendment protections 
it purports to extend to the tribes, making its 
effectiveness depend on an abstract, insubstan­
tial finding." (p. 62)

The Fort Berthold rule continues to accord only 
the most limited and modified constitutional 
rights to Indian interests in land. The political 
branches of the government remain largely un­
fettered in their control over Indian land, free 
to extinguish Indian interests without any but 
the most superficial judicial control. Under 
Fort Berthold, the Fifth Amendment right to just 
compensation is an abridged right which is ulti­
mately subject to broad control by Congress. By 
simply making an "objective" record of good faith 
intentions to act in the best interest of Indians, 
Congress remains free to take Indian interests in 
land and to deny the just compensation to which 
all others are entitled. The Fort Berthold rule 
leaves Indian interests ripe for abuse, without 
sufficient judicial protection.

It is impossible to square the Fort Berthold 
rule with the many recent decisions o£ this Court 
governing Fifth Amendment rights. It is scarcely 
conceivable that the interests of Indians in land, 
including their interest in the 51 million acres* 
of lands they hold,would not today, after careful 
examination, be deemed property interests fully 
protected by due process and equal protection. It 
would be inconsistent and arbitrary to deny Indian

£
T. Taylor, The States and Their Indian Citi­

zens, U.S. Dept, of the Interior (1972) p. 176.



14

peoples the same constitutional protections which 
this Court has seen fit to extend to all other 
groups and individuals, including aliens. Rapidly- 
evolving notions of justice, with parallel 
developments in the United States constitutional 
law and international law, require that this Court 
make a fresh examination of the tenets governing 
Indian land law. Only those principles consis­
tent with the highest constitutional ideals 
should be permitted to stand.

Conclusion

In Delaware Tribal Business Committee v. Weeks 
430 U.S. 73 (1977) this Court rejected the govern­
ment's argument for "plenary power" and held that 
"the power of Congress over Indian affairs may be 
of a plenary nature, but it is not absolute." In 
the present case the government again asks for 
this Court's approval of virtually plenary politi­
cal control over Indian interests in land. As in 
the Delaware case, this Court should deny the 
government's request and reaffirm the supremacy 
of law and the Constitution in United States Indian 
affairs.

Although amicus argues that this Court should 
rule that all Indian interests in land are fully 
and equally protected by the Fifth Amendment to 
the constitution, the Court need not decide the 
constitutional issues. The Court may prefer to 
decide on other grounds and wait to address the 
Fifth Amendment issues in a subsequent case where 
the parties have made a complete record on the 
constitutional questions. However, should the 
Court be inclined to review the central consti­
tutional issues and to re-examine the Marshall 
Court decisions, Lone Wolf, Tee-Hit-Ton, Fort 
Berthold, and their progeny, we respectfully 
urge the Court to accord the highest standard of 
constitutional protection to all Indian interests



15

in land. This Court should ensure that Indian 
interests receive the same Fifth Amendment 
protections which are guaranteed to all others.

Respectfully submitted,

Steven M. Tullberg 
Robert T. Coulter 
Indian Law Resource Center 
601 E Street, SE 
Washington, DC 20003

Counsel for Amicus Curiae

Of Counsel:

Nell J. Newton
c/o Catholic University School of Law 
620 Michigan Avenue, NE 
Washington, DC

March 3, 1980