Yankton Sioux Tribe v. Southern Missouri Waste Management Dist.

• Decision Date: 31 December 1892
• Citation: 99 F.3d 1439
• Parties: 27 Envtl. L. Rep. 20,374 YANKTON SIOUX TRIBE, a federally recognized tribe of Indians, and its individual members; Darrell E. Drapeau, individually, a member of the Yankton Sioux Tribe, Plaintiffs-Appellees, v. SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, a non-profit corporation, Defendant-Third Party, Plaintiff-Appellee, v. STATE OF SOUTH DAKOTA, Third Party Defendant-Appellant. Charles Mix County, South Dakota; Flandreau Santee Sioux Tribe, Inc.; United States of America; Amicus Curiae. Vine Deloria, Jr.; Philip S. Deloria; Philip Lane, Sr.; Philip Lane, Jr.; James Weddell, Descendants of Francois Deloria, Signatory to the Treaty of 1858, and Descendants and Relatives of Philip J. Deloria, Chief of Band Eight of the Yankton Sioux Tribe, at the time of the negotiation and ratification of the agreement of
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1439

99 F.3d 1439

27 Envtl. L. Rep. 20,374

YANKTON SIOUX TRIBE, a federally recognized tribe of

Indians, and its individual members; Darrell E.

Drapeau, individually, a member of the

Yankton Sioux Tribe, Plaintiffs-Appellees, v. SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, a non-profit

corporation, Defendant-Third Party, Plaintiff-Appellee, v. STATE OF SOUTH DAKOTA, Third Party Defendant-Appellant.

Charles Mix County, South Dakota; Flandreau Santee Sioux

Tribe, Inc.; United States of America; Amicus Curiae.

Vine Deloria, Jr.; Philip S. Deloria; Philip Lane, Sr.;

Philip Lane, Jr.; James Weddell, Descendants of Francois

Deloria, Signatory to the Treaty of 1858, and Descendants

and Relatives of Philip J. Deloria, Chief of Band Eight of

the Yankton Sioux Tribe, at the time of the negotiation and

ratification of the agreement of December 31, 1892, Amici Curiae.

No. 95-2647.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1996.

Decided Oct. 24, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

6, 1997. ^*

John P. Guhin, Asst. Attorney General, argued, Pierre, S.D. (Roxanne Giedd, on the brief), for Third-Party Defendant-Appellant.

James G. Abourezk, argued, Sioux Falls, S.D., for Plaintiffs-Appellees.

Timothy R. Whalen, Charles Mix County States Attorney, Lake Andes, SD, Tom D. Tobin, Tobin Law Offices, P.C., Winner, SD, on the brief, for amicus curiae Charles Mix County.

Before RICHARD S. ARNOLD, Chief Judge, and MAGILL and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

This case raises questions about the extent to which an 1894 act of Congress affected the reservation of the Yankton Sioux Tribe in South Dakota. That statute ratified and incorporated an 1892 agreement between the tribe and the United States. The tribe brought this declaratory judgment action to enforce its claimed right to approve and regulate a landfill site over which the state claims jurisdiction on the basis that the 1894 statute disestablished or diminished the Yankton reservation. After a trial the district court ¹ ruled that the site was still part of the Yankton reservation so federal environmental laws applied, but that the tribe did not have regulatory authority over the project, which it declined to enjoin. The state appealed from the judgment, and we affirm.

I.

The Southern Missouri Waste Management District (Waste District) is a non-profit corporation which was established by several South Dakota counties to develop a regional solid waste landfill, for which it purchased land within the boundaries of Charles Mix County. The proposed site had been owned by a non-Indian but was within the Yankton Sioux Indian Reservation as defined by the 1858 treaty between the tribe and the United States.

The Waste District filed an application with the South Dakota Department of Environment and Natural Resources for a solid waste permit to construct the landfill on the site. The Yankton tribe was concerned about possible effects of the project, and it intervened and participated in the December 1993 administrative hearing on the permit application.

After the state granted the permit, the tribe ² sued the Waste District in federal court to stop construction until it could review and regulate the project. It sought a declaratory judgment that the boundaries established in the 1858 treaty still define the extent of the reservation. The Waste District joined the state as a third party defendant, and the state argued that the tribe had no jurisdictional authority over the 200,000 noncontiguous acres ceded to the United States in 1894.

The case was tried to the court over five days. The tribe's expert on Yankton Sioux history, Professor Herbert Hoover, testified that his research revealed no historical reason to believe the boundaries of the reservation had been changed by the 1894 act. Several witnesses testified for each side as to the potential impact of the landfill on tribal activities, the political organization and history of the tribe, and their perception of the reservation's boundaries. Much of the trial focused on technical issues relating to the construction and integrity of the landfill.

After considering post-trial briefing by the parties which focused on the legal significance of a savings clause in the 1892 agreement, the district court entered a declaratory judgment. It concluded that the 1894 act ratifying the 1892 agreement did not disestablish or diminish the size of the reservation. Yankton Sioux Tribe v. Southern Missouri Waste Management District, 890 F.Supp. 878, 891 (D.S.D.1995). The landfill site was therefore still part of the reservation, and regulations of the Environmental Protection Agency (EPA) applied, including the requirement that a synthetic liner be installed in each of the landfill cells to prevent leakage. ³ The court also concluded that the tribe had not shown a right to regulate the landfill site since it had not established either exception to the general rule that Indian tribes cannot regulate the activities of non-Indians, even on a reservation. Montana v. United States, 450 U.S. 544, 564-66, 101 S.Ct. 1245, 1257-59, 67 L.Ed.2d 493 (1981); see also, A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir.1996) (en banc), cert. granted, --- U.S. ----, 117 S.Ct. 37, 135 L.Ed.2d 1128 (1996) (matters affecting tribal self-government and consensual relations with the tribe are excepted). The court also declined to enjoin the landfill project so long as it complied with the EPA liner requirement.

On appeal South Dakota argues that the district court erred as a matter of law in concluding that the 1858 tribal boundaries remain in effect despite the 1892 agreement, its ratification in 1894, and the subsequent sale of unallotted land. It contends that the language of the agreement, its ratifying statute, and surrounding circumstances show that Congress intended that the boundaries established by the treaty of 1858 be disestablished or diminished. ⁴ The tribe responds that the intent and interest of Congress was in purchasing land for resale to non-Indian settlers, not in eliminating tribal authority in the area reserved in the treaty of 1858. ⁵

II.

In the 1858 treaty between the Yankton Sioux and the United States the tribe surrendered over 11 million acres, and the United States in turn agreed "[t]o protect the said Yanctons [sic] in the quiet and peaceable possession" of a 430,000 acre reservation in southern South Dakota and a much smaller reservation in southwestern Minnesota. ⁶ 11 Stat. 743. The tribe also received $1.6 million to be paid in annuities over 50 years, as well as funds for a mill, schools, houses, and other expenses related to establishing the reservation.

The decades following the signing of the treaty brought significant changes in federal Indian policy as more settlers moved westward, increasing the demand for places to homestead. Solem v. Bartlett, 465 U.S. 463, 466 & n. 6, 104 S.Ct. 1161, 1163-64 & n. 6, 79 L.Ed.2d 443 (1984). Congress was also confronted with how to deal with tribes whose reservations had once been isolated but were located in areas in which states were then being formed.

In 1887 Congress passed the General Allotment Act (Dawes Act). 24 Stat. 388 (1887), codified at 25 U.S.C. § 331 et seq. The Dawes Act permitted the federal government to allot plots of reservation land to individual Indians. Once the members of a tribe had received their individual allotments ("allotted lands") from the government, the surplus land ("unallotted lands") could be sold to non-Indian settlers. It was the government's policy until the early 1900s to sell reservation lands to settlers only after negotiating an agreement with the relevant tribe. ⁷

The Dawes Act was intended both to advance the "civilization" and welfare of Indians and to provide land for settlement. See DeCoteau, 420 U.S. at 432, 95 S.Ct. at 1087. Although it did not mandate the elimination of reservations, it was hoped that under the allotment policy Indians would benefit from individual ownership and responsibility, abandon their communal notions of property and social organization, and learn to farm from their non-Indian neighbors. Hagen v. Utah, 510 U.S. 399, 402-04, 114 S.Ct. 958, 961, 127 L.Ed.2d 252 (1994). Individual members of the Yankton tribe eventually received allotments totalling about 230,000 acres scattered throughout the reservation. Yankton Sioux Tribe v. United States, 224 Ct.Cl. 62, 623 F.2d 159 (1980).

By 1892 there was considerable pressure from settlers for more land in South Dakota, and a three member commission was appointed to negotiate with the Yankton Sioux about their unallotted lands. The commission was charged with reaching an agreement that would allow the United States to buy as much of the unallotted land as the tribe would sell. The record shows that some tribal members were interested in selling because of a severe drought and because of concerns for the elderly and infirm, the status of the Pipestone quarry in Minnesota, and compensation owed tribal members for their service in the United States Army. The government hoped that the new policy would help the Yankton Sioux assimilate. The Senate Committee on Indian Affairs reported that "close contact with the frugal, moral, and industrious people who will settle there will stimulate individual effort and make their progress much more rapid than heretofore." S.Rep. No. 196, 53d Cong., 2d Sess. 1 (1894).

The commission eventually succeeded in securing the signatures of a majority of the male members of the tribe in favor of sale of the unallotted lands. Under the agreement, dated December 31, 1892, ⁸ the federal government would pay $600,000 with interest for some 200,000 acres within the boundaries of the reservation that had been established by the treaty of 1858. ⁹ The government intended then to sell plots of this land to settlers.

The agreement of 1892 contained several key provisions. In ...