465 U.S. 463 (1984), 82-1253, Solem v. Bartlett

Docket Nº:No. 82-1253.
Citation:465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443
Party Name:Herman S. SOLEM, Warden, and Mark V. Meierhenry, Attorney General of South Dakota, Petitioners v. John BARTLETT.
Case Date:February 22, 1984
Court:United States Supreme Court

Page 463

465 U.S. 463 (1984)

104 S.Ct. 1161, 79 L.Ed.2d 443

Herman S. SOLEM, Warden, and Mark V. Meierhenry, Attorney General of South Dakota, Petitioners



No. 82-1253.

United States Supreme Court.

Feb. 22, 1984

Argued Dec. 7, 1983.

[104 S.Ct. 1162] Syllabus[*]


The Cheyenne River Act (Act), enacted in 1908, authorized the Secretary of the Interior "to sell and dispose of" for homesteading a specified portion of the Cheyenne River Sioux Reservation located in South Dakota, with the sale proceeds to be deposited in the United States Treasury to the credit of the Indians having tribal rights on the reservation. Respondent, a member of the Cheyenne River Sioux Tribe, was convicted of attempted rape in a South Dakota state court. After exhausting state remedies, he filed a habeas corpus petition in Federal District Court, contending that the crime occurred within Indian country, that although the Act opened a portion of the reservation for homesteading, it did not diminish the reservation, and that therefore the State lacked jurisdiction over him, the federal courts having exclusive jurisdiction under 18 U.S.C. § 1153. The District Court issued a writ of habeas corpus, and the Court of Appeals affirmed.

Held: The Act did not diminish the reservation. Pp. 1164 - 1172.

(a) Only Congress can divest an Indian reservation of its land and diminish its boundaries. But Congress must clearly evince an intent to change boundaries before diminishment will be found. When both a surplus land Act and its legislative history fail to provide substantial and compelling evidence of such an intent, this Court is bound by its traditional solicitude for Indian tribes to rule that diminishment did not take place and that old reservation boundaries survived the opening of unallotted land for non-Indian settlement. Pp. 1164 - 1167.

(b) Here, the Act's operative language authorizing the Secretary of the Interior to "sell and dispose" of certain lands, coupled with the creation of Indian accounts for the proceeds, suggests that the Secretary was simply being authorized to act as the Tribe's sales agent. The balance of the Act is consistent with the implication of the operative language that the Act opened but did not diminish the reservation. In fact, certain provisions of the Act strongly suggest that the unallotted opened lands would for the immediate future remain an integral part of the reservation. Isolated phrases in the Act supporting the view that the reservation was diminished, when balanced against the Act's stated and limited goal of opening up reservation lands for sale to non-Indian settlers,

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cannot carry the burden of establishing an express congressional [104 S.Ct. 1163] purpose to diminish. Pp. 1167 - 1169.

(c) Nor do either the circumstances surrounding the passage of the Act or subsequent events establish a clear congressional purpose to diminish the reservation. Moreover, the opened portions of the reservation have retained their Indian character since 1908. Pp. 1169 - 1172.

691 F.2d 420 (CA8 1982), affirmed.


Mark V. Meierhenry, Attorney General of South Dakota, pro se, argued the cause for petitioners. With him on the briefs was Mark Smith, Assistant Attorney General.

Tom D. Tobin argued the cause for the County of Dewey, South Dakota, et al. asamici curiae urging reversal. With him on the brief were William W. Shakely and David Albert Mustone.

Arlinda F. Locklear argued the cause for respondent. With her on the brief were Terry L. Pechota and Richard B. Collins.*

* Briefs of amici curiae urging reversal were filed for the State of Minnesota by Hubert H. Humphrey III, Attorney General, and James M. Schoessler, Special Assistant Attorney General; and for the County of Duchesne, Utah, et al. byDennis L. Draney, Tom Slorby, and John Frederick.

Briefs of amici curiae urging affirmance were filed for the United States bySolicitor General Lee, Acting Assistant Attorney General Habicht, Deputy Solicitor General Claiborne, and David C. Shilton; and for the Cheyenne River Sioux Tribe, South Dakota, et al., by W. Richard West, Jr., Arthur Lazarus, Jr., Reid Peyton Chambers, and William R. Perry.

Mark V. Meierhenry, Atty. Gen., Pierre, S.D., for petitioners.

Tom D. Tobin, Winner, S.D., for Dewey County, S.D., et al., as amici curiae, by special leave of Court.

Arlinda Locklear, Washington, D.C., for respondent.


Justice MARSHALL delivered the opinion of the Court.

On May 29, 1908, Congress authorized the Secretary of the Interior to open 1.6 million acres of the Cheyenne River Sioux Reservation for homesteading. Act of May 29, 1908, ch. 218, 35 Stat. 460 et seq. ("Act" or "Cheyenne River Act"). The question presented in this case is whether that Act of Congress diminished the boundaries of the Cheyenne River Sioux Reservation or simply permitted non-Indians to settle within existing Reservation boundaries.

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In 1979, the State of South Dakota charged respondent John Bartlett, an enrolled member of the Cheyenne River Sioux Tribe, with attempted rape. Respondent pleaded guilty to the charge, and was sentenced to a ten-year term in the state penitentiary at Sioux Falls. After exhausting state remedies, respondent filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of South Dakota. Respondent contended that the crime for which he had been convicted occurred within the Cheyenne River Sioux Reservation, established by Congress in the Act of March 2, 1889, ch. 405, § 4, 25 Stat. 889; that, although on May 29, 1908, Congress opened for settlement by non-Indians the portion of the Reservation on which respondent committed his crime, the opened portion nonetheless remained Indian country;1 and that the State therefore lacked criminal jurisdiction over respondent. 2

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Relying on previous decisions of the Eighth Circuit dealing with the Act of May 29, 1908,3 the District Court accepted respondent's claim that the Act had not diminished the original Cheyenne River Sioux Reservation, and issued a writ of habeas corpus. On appeal, the Eighth Circuit, sitting en banc, affirmed, two judges dissenting. Bartlett v. Solem, 691 F.2d 420 (1982). Because the Supreme Court of South Dakota has issued [104 S.Ct. 1164] a pair of opinions offering a conflicting interpretation of the Act of May 29, 1908,4 we granted certiorari. 461 U.S. 956, 103 S.Ct. 2427, 77 L.Ed.2d 1314 (1983). We now affirm.


In the latter half of the nineteenth century, large sections of the western States and Territories were set aside for Indian reservations. Towards the end of the century, however, Congress increasingly adhered to the view that the Indians tribes should abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land. 5 This shift was fueled in part by the belief that individualized farming would speed the Indians' assimilation into American society and in part by the continuing demand for new lands for the waves of homesteaders moving West. 6 As a result of these combined pressures, Congress

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passed a series of surplus land acts at the turn of the century to force Indians onto individual allotments carved out of reservations and to open up unallotted lands for non-Indian settlement. Initially, Congress legislated its Indian allotment program on a national scale,7 but by the time of the Act of May 29, 1908, Congress was dealing with the surplus land question on a reservation-by-reservation basis, with each surplus land act employing its own statutory language, the product of a unique set of tribal negotiation and legislative compromise.

The modern legacy of the surplus land acts has been a spate of jurisdictional disputes between State and Federal officials as to which sovereign has authority over lands that were opened by the acts and have since passed out of Indian ownership. 8 As a doctrinal matter, the States have jurisdiction over unallotted opened lands if the applicable surplus land act freed that land of its reservation status and thereby diminished the reservation boundaries. On the other hand, Federal, State, and Tribal authorities share jurisdiction over these lands if the relevant surplus land act did not diminish the existing Indian reservation because the entire opened area is Indian country under 18 U.S.C. § 1151(a). See nn. 1 and 2, supra.

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Unfortunately, the surplus land acts themselves seldom detail whether opened lands retained reservation status or were divested of all Indian interests. When the surplus land acts were passed, the distinction seemed unimportant. The notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar at the turn of the century. [104 S.Ct. 1165] Indian lands were judicially defined to include only those lands in which the Indians held some form of property interest: trust lands, individual allotments, and, to a more limited degree, opened lands that had not yet been claimed by non-Indians. See Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877); Ash Sheep Co. v. United States, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507 (1920). Only in 1948 did Congress uncouple reservation status from Indian ownership, and statutorily define Indian country to include lands held in fee by non-Indians within reservation boundaries. See Act of June 25, 1948, ch. 645, § 1151, 62 Stat. 757 (codified at 18 U.S.C. § 1151).

Another reason why Congress did not concern itself with the effect of surplus land acts on reservation boundaries was the turn-of-the-century assumption that Indian reservations were a thing of the past. Consistent with prevailing wisdom, members of Congress voting on the surplus land acts believed to a man that within a short time--within a generation at most--the Indian tribes would enter...

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