Bennett County, South Dakota v. United States

• Decision Date: 24 April 1968
• Docket Number: No. 18935.,18935.
• Citation: 394 F.2d 8
• Parties: BENNETT COUNTY, SOUTH DAKOTA, a Public Corporation, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 8 (1968)

BENNETT COUNTY, SOUTH DAKOTA, a Public Corporation, Appellant, v. UNITED STATES of America, Appellee.

No. 18935.

United States Court of Appeals Eighth Circuit.

April 24, 1968.

Robert J. Parker, State's Atty., Bennett County, Martin, S. D., for appellant; Frank L. Farrar, Atty. Gen. of State of South Dakota, Pierre, S. D., on the brief.

John G. Gill, Jr., Atty., Department of Justice, Washington, D. C., for appellee; Edwin L. Weisl, Jr., Asst. Atty. Gen., Department of Justice, Washington, D. C., Harold C. Doyle, U. S. Atty., Sioux Falls, S. D., and David V. Vrooman, Asst. U. S. Atty., Sioux Falls, S. D., on the brief.

Before MATTHES, GIBSON and HEANEY, Circuit Judges.

MATTHES, Circuit Judge.

Bennett County, South Dakota (hereinafter referred to as the County or appellant) appeals from the judgment of the district court permanently enjoining it from constructing, maintaining or using a road across certain land lying within its confines. United States v. Bennett County, South Dakota, 265 F.Supp. 249 (D.So.Dak.1967). Title to this land is in the United States, in trust, for the use and benefit of Newton and Doyle Cummings, enrolled members of the Oglala Sioux Tribe of Indians, of the Pine Ridge Reservation.¹ The land in question is wholly within the Pine Ridge Reservation.

Pursuant to the Act of June 14, 1862, c. 101, § 1, 12 Stat. 427, now codified in 25 U.S.C.A. § 185,² the United States sought to enjoin appellant from entering upon the land for the purpose of making repairs to the road without (1) securing permission from the Secretary of Interior, pursuant to the provisions of 25 U.S.C.A. § 311, or (2) acquiring the land by condemnation under the provisions of 25 U.S.C.A. § 357.³ Since it was conceded that appellant had neither secured permission nor had condemned, the court concluded that an injunction should be granted against entry until such time as appellant received permission to repair the road, or alternatively, until an easement has been secured by condemnation.

Appellant rests its claim for reversal on the premise that other Congressional legislation has secured its right to enter the land for highway purposes, and that it need not secure permission under Section 311, or condemn under Section 357. Specifically, it submits that its authority to act has been granted under Section 8 of the "Public Highway Act" of 1866, c. 262, § 8, 14 Stat. 251, 253, now codified in 43 U.S.C.A. § 932, or in the alternative, that a section line highway easement was created by Section 21 of the Act of March 2, 1889, 25 Stat. 888, which established the Pine Ridge Sioux Reservation.

A brief historical outline of the transactions between the United States and the Oglala Sioux tribe will aid in properly understanding the positions of the parties and in resolving the question whether the County is entitled to a highway easement across allotted Indian lands within the Pine Ridge Reservation. The treaties and Congressional acts pertinent to this discussion are, (a) the "Treaty of Fort Laramie of 1851," 11 Stat. 749, reported in full II Kappler, Laws and Treaties (2d Edition 1904) 594; (b) the "Treaty of 1868," ratified 1869, 15 Stat. 635; (c) the Act of March 2, 1889, 25 Stat. 888 ("Act of 1889") and (d) the Act of July 26, 1866, c. 262, § 8, 14 Stat. 251, 253 (hereafter referred to as the "Highway Act of 1866").

The Treaty of Fort Laramie constituted an agreement between various Indian tribes to cease hostilities against one another and against the people of the United States. It set off tribal boundaries and made the tribes responsible for any depredations committed within their respective territories.⁴

The Treaty of 1868 created the "Great Reservation" for the Sioux. By its terms lands were set off "for the absolute and undisturbed use and occupation of the Indians." The United States guaranteed that no persons would be allowed to pass over or settle upon the reserved lands. In return for government benefits the Sioux relinquished all claims or rights in lands outside the "Great Reservation."

In subsequent years the Sioux territory was diminished by other agreements. Ultimately, separate Indian reservations for various bands of Sioux were permanently fixed by the Act of 1889. This Act formally established the Pine Ridge Reservation for the Oglala Sioux.⁵

As an introduction to the specific contentions of appellant we recognize general rules of law which guide us in determining the merits of its claims. With respect to land agreements between the Indians and the United States, it has frequently been stated that the fee to the lands is vested in the federal government, and that "Indian title" represents merely a right to occupancy of the land, until such right has been surrendered to the federal government. As a general rule, Indian lands are not included in the term "public lands" which are subject to sale or disposal under general laws. Cf. Missouri-Kansas-Texas Railway Co. v. United States, 235 U.S. 37, 35 S.Ct. 6, 59 L.Ed. 116 (1914); Nor. Pac. Ry. Co. v. United States, 227 U.S. 355, 33 S.Ct. 368, 57 L.Ed. 544 (1913); Putnam v. United States, 248 F.2d 292 (8th Cir. 1957); 27 Am.Jur. Indians § 24, p. 557.

The federal government possesses the unquestioned power to convey the fee to lands occupied by Indian tribes, although the grantee takes only the naked fee and cannot disturb the occupancy of the Indians. Cf. United States v. Thomas, 151 U.S. 577, 14 S.Ct. 426, 38 L.Ed. 276 (1894); State of Wisconsin v. Hitchcock, 201 U.S. 202, 26 S.Ct. 498, 50 L.Ed. 727 (1906). The power of the United States to control the affairs of its Indian wards is subject to constitutional limitations and does not enable the United States, without paying just compensation, to appropriate lands of an Indian tribe. United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 123, 58 S.Ct. 799, 82 L.Ed. 1219 (1938); 27 Am.Jur. Indians § 37. A formal act of cession by a tribe, by treaty or otherwise, operates to determine the Indian title, and is the usual method in which such rights have been extinguished. 27 Am. Jur. Indians § 33.

In determining whether or not an Indian tribe has a compensable interest in lands, two types of title interest have been recognized. They are: "recognized title" (by treaty, statute or otherwise), and Indian or "aboriginal title," (continual occupancy and use to the exclusion of other tribes or persons.) For discussion of compensable Indian title, see Sac and Fox Tribes of Indians of Oklahoma v. United States (1963) 315 F.2d 896, 161 Ct.Cl. 189, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165; Minnesota Chippewa Tribe v. United States (1963) 315 F.2d 906, 161 Ct.Cl. 258.

All questions with respect to rights of occupancy in land, the manner, time and conditions of extinguishment of Indian title are solely for consideration of the federal government. Cf. United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260, rehear. denied, 314 U.S. 716, 62 S.Ct. 476, 86 L.Ed. 570 (1941); 27 Am.Jur. Indians § 33. As a corollary to this proposition, it follows that third parties, and in particular states and municipalities, acquire only such rights and interests in Indian lands as may be specifically granted to them by the federal government.⁶

To assure the utmost fairness in transactions between the United States and its Indian wards, any intent to deprive Indian tribes of their rights in land, or otherwise bring about the extinguishment of Indian title, either by grants in abrogation of existing treaties or through other Congressional legislation must be clearly and unequivocally stated and language appearing in such grants and statutes is not to be construed to the prejudice of the Indians. See United States v. Santa Fe Pacific R. Co., supra, 314 U.S. at 353-356, 62 S.Ct. 248; Nor. Pac. Ry. Co. v. United States, supra; Leavenworth, etc. R. R. Co. v. United States, 92 U.S. 733, 23 L.Ed. 634 (1875); United States v. Shoshone Tribe, etc., 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938).

With the foregoing general principles in mind, we turn to appellant's theory that Congress has specifically granted easements for highway purposes over the land in question, and that Indian occupancy is subservient to these easements.

A. The "Highway Act of 1866."

Appellant asserts that prior to 1866, the land in question was a part of the public domain, and that the Sioux tribe had no title or reservation interest until the Treaty of 1868, creating the "Great Reservation." In this argument, appellant relies upon Section 8 of the Act of July 26, 1866, supra, which provides in pertinent part:

"The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." (Emphasis supplied.) 43 U.S.C.A. § 932.

Appellant argues that this constituted an open offer for the taking of an easement by a public municipality, which was accepted by Bennett County upon construction of the road in question.

In contrast the government asserts that the Treaty of Fort Laramie in 1851 constituted an inherent recognition of Indian title; that although the Treaty contains no technical language creating a formal "Reservation," the land was nonetheless effectively reserved for the use of the tribes, and thus, when the "Highway Act" was passed, the lands were no longer "public lands, not reserved for public uses." In short, the grant of an easement over public lands found in the Act would not be applicable to Sioux lands set apart in the Treaty of 1851.

The circumstances surrounding the Treaty of 1851 have been fully delineated by the Court of Claims in Crow Tribe of Indians v. United States (Ct.Cl.1960) 284 F.2d 361, cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383. In determining that the Crows had a compensable interest in land described as their territory in the Fort Laramie Treaty, the Court concluded that this treaty was a recognition of Indian...