Hagen v. Utah, 510 U.S. 399, 12 (1994)

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Opinion of the Court

fore is not properly before us. Yee v. Escondido, 503 U. S. 519, 535-536 (1992); see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27 (1993) (per curiam). Moreover, petitioner disavowed the collateral estoppel argument at the petition stage, in response to a brief filed by the Ute Indian Tribe:

"The question presented in the petition was whether the reservation had been diminished by acts of congress. [This Court's Rule 14.1(a)] does not appear to allow different issues to be raised. The Ute Indian Tribe argues that the Supreme Court of the State of Utah should have reached a different decision in [Perank] based on the doctrine of collateral estoppel . . . . Regardless of the opinion held by the Ute Indian Tribe of the Perank decision, the decision has been made and is controlling in petitioner's case." Supplemental Brief for Petitioner 2 (filed Dec. 2, 1992) (emphasis added).

Because we see no reason to consider an argument that petitioner not only failed to raise, but also expressly refused to rely upon in seeking a writ of certiorari, we turn to the merits.


In Solem v. Bartlett, we recognized:

"It is settled law that some surplus land Acts diminished reservations, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U. S. 584 (1977); DeCoteau v. District County Court, 420 U. S. 425 (1975), and other surplus land Acts did not, see, e. g., Mattz v. Arnett, 412 U. S. 481 (1973); Seymour v. Superintendent, 368 U. S. 351 (1962). The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage." 465 U. S., at 469.

In determining whether a reservation has been diminished, "[o]ur precedents in the area have established a fairly clean

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