Lower Brule Sioux Tribe v. State of SD, No. CIV 80-3046.

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Writing for the CourtBOGUE
Citation540 F. Supp. 276
PartiesLOWER BRULE SIOUX TRIBE v. STATE OF SOUTH DAKOTA, Jack Merwin, Secretary, Division of Game, Fish and Parks for the State of South Dakota.
Decision Date30 April 1982
Docket NumberNo. CIV 80-3046.

540 F. Supp. 276

LOWER BRULE SIOUX TRIBE
v.
STATE OF SOUTH DAKOTA, Jack Merwin, Secretary, Division of Game, Fish and Parks for the State of South Dakota.

No. CIV 80-3046.

United States District Court, D. South Dakota.

April 30, 1982.


540 F. Supp. 277

R. Dennis Ickes, Salt Lake City, Utah, Wm. J. Srstka, Jr., Pierre, S. D., for plaintiff.

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

MEMORANDUM OPINION

BOGUE, Chief Judge.

The Lower Brule Sioux Tribe brought this action against the State of South Dakota and Jack Merwin, Secretary of the State Department of Game, Fish, and Parks. In its complaint the Tribe seeks declaratory and injunctive relief concerning regulatory jurisdiction over hunting and fishing on the Lower Brule Reservation, 28 U.S.C. §§ 2201, 2202. This Court has jurisdiction over the controversy under 28 U.S.C. § 1362.1

540 F. Supp. 278

BACKGROUND

The territory of the Sioux Nation was defined first by the Fort Laramie Treaty of 1851, 11 Stat. 749, and later, by the Second Fort Laramie Treaty of 1868, 15 Stat. 635. See, United States v. Sioux Nation, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). The Act of March 2, 1889, 25 Stat. 888, divided the Sioux Nation and described the boundaries of the Lower Brule Sioux Reservation. The reservation, generally, was situated in central South Dakota adjacent to and extending westward from the Missouri River. See, Plate 1. The eastern boundary of the reservation was established in "the center of the main channel of the Missouri River," from "Old Fort George," south to "Fort Lookout." The eastern boundary as of 1889 remained in the river even though the reservation was diminished along the western boundary in 1899, 30 Stat. 1362, and again in 1906, 34 Stat. 124. The General Allotment Act, 24 Stat. 388, authorized the issuance of fee patents to individual Indians covering land within the reservation. Title to some of these parcels eventually passed to non-Indians. Today the Tribe states that land ownership within the reservation is divided among the Tribe, individual allottees, the United States, and both Indian and non-Indian owners of fee land.

Under the 1944 Flood Control Act, P.L. 534-78, 58 Stat. 887, Congress authorized a comprehensive flood control plan which included the construction of several dams and reservoirs on the Missouri River. In order to construct the Big Bend and Fort Randall dam and reservoir projects, Congress authorized the acquisition of tribal and trust lands belonging to the Lower Brule Tribe, along the eastern boundary of the reservation. Tribal lands needed for the Fort Randall project were taken by the power of eminent domain. Congress enacted P.L. 85-923, 72 Stat. 1773, September 2, 1958, (hereinafter, "the Ft. Randall Taking Act"), to provide compensation to the Tribe and its members for the land taken. On October 3, 1962, Congress enacted P.L. 87-734, 76 Stat. 698, to authorize the acquisition of and payment for tribal and trust lands needed for the Big Bend project. This case, in part, concerns the allocation of regulatory jurisdiction over hunting and fishing within these "taking areas."

The Tribe has adopted various hunting and fishing ordinances to improve management of wildlife resources on the reservation and within the taken areas. These ordinances were adopted pursuant to the tribal constitution. Some of the ordinances are inconsistent with state laws. For example, the Tribe does not prohibit the use of lead shot or other toxic shot shells by individuals hunting water fowl within the Reservation. The State prohibits the use of lead shot or other toxic shot in this area. In the past, the Tribe and the State have established different water fowl hunting season restrictions affecting the Missouri River and reservoir areas. The State established a Missouri River Refuge in portions of the River which include the Big Bend Reservoir and Lake Sharpe. Since the Tribe alleges that these areas are within Reservation boundaries, the Tribe established its own refuge in the same area and asserts the power to regulate hunting and fishing by all persons. The Tribe seeks to derive income through fees and licenses arising from its hunting and fishing regulation of the area.

Accordingly, the Tribe requests a declaration by this Court that the State lacks jurisdiction to regulate the hunting and fishing activities of any person within the exterior boundaries of the reservation. The Tribe also seeks to enjoin the State from applying and enforcing its hunting and fishing laws against both members and nonmembers of the Tribe. Conversely, the State contends that the Lower Brule Reservation was diminished

540 F. Supp. 279
by the 1944 Flood Control Act and by the specific enactments which provided for the acquisition of tribal and trust lands needed for the Big Bend and Fort Randall dam and reservoir projects. The State further asserts that these acts abrogated the 1868 Treaty of Fort Laramie, to the extent that it reserved hunting and fishing rights of the Tribe within the taken area. Consequently, the State seeks a declaration by this Court that the State has exclusive jurisdiction to regulate hunting and fishing by all persons within the taken area.2

Having filed numerous depositions, exhibits and affidavits, both the Tribe and the State assert that there are no genuine issues as to any material fact. Thus, the merits of this case, as it applies to the "taking" areas, are before this Court on the parties' cross-motions for summary judgment. The pleadings initially state two issues:

(1) Did the acquisition of tribal and trust lands by the United States, pursuant to the 1944 Flood Control Act, diminish the Lower Brule Reservation and its boundaries to the extent of the taking?
(2) Did the acquisition of these lands abrogate the Lower Brule Sioux Tribe's treaty right to hunt and fish within the area acquired free of State regulation?
540 F. Supp. 280

RESERVATION DIMINISHMENT

It is well settled that congressional intent controls the determination whether the taking acts diminished the reservation boundaries. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 589, 97 S.Ct. 1361, 1364, 51 L.Ed.2d 660 (1977); DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). The "fact of the Act," the "legislative history," and the "surrounding circumstances" must be examined in order to determine congressional intent. Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). Doubtful expressions of congressional intent must be resolved in favor of the Indians and against finding reservation diminishment. Rosebud Sioux Tribe v. Kneip, 430 U.S. at 586, 97 S.Ct. at 1362.

This is not the first time this Court has analyzed these taking acts in the context of a claim of reservation diminishment. In United States v. Wounded Knee, 596 F.2d 790 (8th Cir. 1979), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979), the Eighth Circuit Court of Appeals affirmed this Court's decision that the Act which took land of the Crow Creek Sioux Tribe for the Big Bend project did not diminish the Crow Creek reservation.3 The decision in Wounded Knee governs this Court's present inquiry.

The Lower Brule and Crow Creek Tribes occupy reservations on opposite sides of the Missouri River. The tribes, therefore, simultaneously lost land under the taking acts for the Big Bend and Fort Randall

540 F. Supp. 281
projects. On September 2, 1958, Congress enacted nearly identical acts providing for the settlement of all claims of the Crow Creek (P.L. 85-916, 72 Stat. 1766) and Lower Brule (P.L. 85-923) tribes for land taken for the Fort Randall project. Likewise, on October 3, 1962, Congress approved legislation which authorized the taking of both Lower Brule (P.L. 87-734) and Crow Creek (P.L. 87-735, 76 Stat. 704) lands needed for the Big Bend project. Again, the Big Bend Acts for Lower Brule and Crow Creek are nearly identical, as are the surrounding circumstances and legislative history

The holding in Wounded Knee was that Congress did not intend the Big Bend Act, P.L. 87-735, to diminish the Crow Creek Reservation. 596 F.2d at 796. In order to determine congressional intent behind P.L. 87-735, however, this Court compared that Act to the Fort Randall Acts for both the Lower Brule and Crow Creek reservations. In its unpublished opinion, at page 5, this Court concluded that the Fort Randall Acts diminished the reservations from which the land was taken. On appeal, the Eighth Circuit agreed.4 Neither the Tribe, nor the State succeeded in stating any argument which compels this Court to reach a different assessment of the taking acts in the present case.

The Fort Randall Acts both contain express language of diminishment. At section 6, both P.L. 85-923 (Lower Brule) and P.L. 85-916 (Crow Creek) provide: "The land selected by and purchased for individual Indians may be either inside or outside the boundaries of the reservation as diminished." Emphasis supplied. As part of the surrounding circumstances, the Eighth Circuit observed that Congress included similar language of diminishment in acts which took land for the Oahe Dam and Reservoir project from both the Cheyenne River and Standing Rock Reservations.5 596 F.2d at 792. In the corresponding section of the Big Bend Acts, however, Congress omitted the crucial phrase, "as diminished." See, P.L. 87-734 and P.L. 87-735 at section 11.6 In holding that the Big Bend taking did not diminish the Crow Creek reservation the Eighth Circuit explained:

Absent some strong indicia we must not assume that Congress carelessly or inadvertently omitted the critical words which it had included in similar previous acts with no intention or awareness that such an omission would result in any consequences. 596 F.2d at 794.

The same conclusion obviously must follow with respect to the Big Bend taking from the Lower Brule Reservation.

540 F. Supp. 282

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4 practice notes
  • Swift Transp., Inc. v. John, No. CIV 81-1555 PCT VAC.
    • United States
    • U.S. District Court — District of Arizona
    • 3 Septiembre 1982
    ...of the non-Indian fee land in Montana, supra, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493. See Lower Brule Sioux Tribe v. South Dakota, 540 F.Supp. 276, 291 Having decided that plaintiffs' conduct occurred on non-Indian land, it remains to be determined whether the factual circumstances he......
  • Lower Brule Sioux Tribe v. State of S.D., Nos. 82-1635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Julio 1983
    ...Page 813 and fishing by all persons--both members and nonmembers of the Tribe--within the Fort Randall and Big Bend taking areas, 540 F.Supp. 276. Because we find that the Lower Brule Reservation was not diminished and the Tribe's hunting and fishing rights were not abrogated by the federal......
  • Lower Brule Sioux Tribe v. State of South Dakota, Civ. 91-3036.
    • United States
    • U.S. District Court — District of South Dakota
    • 8 Febrero 1996
    ...to regulate hunting and fishing by all persons on the land within said taken areas. Lower Brule Sioux Tribe v. South Dakota, 540 F.Supp. 276, 292 (D.S.D.1982) (Bogue, J.). The Eighth Circuit Court of Appeals reversed the trial court's holding as it pertained to the regulation of tribal memb......
  • Lower Brule Sioux Tribe v. State of S.D., No. 96-1692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Marzo 1997
    ...divesting the Tribe of jurisdiction over even tribal members on those lands. Lower Brule Sioux Tribe v. South Dakota ("Lower Brule I "), 540 F.Supp. 276, 292 (D.S.D.1982). Our court reversed, holding that the Tribe had exclusive jurisdiction to regulate hunting and fishing by tribal members......
4 cases
  • Swift Transp., Inc. v. John, No. CIV 81-1555 PCT VAC.
    • United States
    • U.S. District Court — District of Arizona
    • 3 Septiembre 1982
    ...of the non-Indian fee land in Montana, supra, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493. See Lower Brule Sioux Tribe v. South Dakota, 540 F.Supp. 276, 291 Having decided that plaintiffs' conduct occurred on non-Indian land, it remains to be determined whether the factual circumstances he......
  • Lower Brule Sioux Tribe v. State of S.D., Nos. 82-1635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Julio 1983
    ...Page 813 and fishing by all persons--both members and nonmembers of the Tribe--within the Fort Randall and Big Bend taking areas, 540 F.Supp. 276. Because we find that the Lower Brule Reservation was not diminished and the Tribe's hunting and fishing rights were not abrogated by the federal......
  • Lower Brule Sioux Tribe v. State of South Dakota, Civ. 91-3036.
    • United States
    • U.S. District Court — District of South Dakota
    • 8 Febrero 1996
    ...to regulate hunting and fishing by all persons on the land within said taken areas. Lower Brule Sioux Tribe v. South Dakota, 540 F.Supp. 276, 292 (D.S.D.1982) (Bogue, J.). The Eighth Circuit Court of Appeals reversed the trial court's holding as it pertained to the regulation of tribal memb......
  • Lower Brule Sioux Tribe v. State of S.D., No. 96-1692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Marzo 1997
    ...divesting the Tribe of jurisdiction over even tribal members on those lands. Lower Brule Sioux Tribe v. South Dakota ("Lower Brule I "), 540 F.Supp. 276, 292 (D.S.D.1982). Our court reversed, holding that the Tribe had exclusive jurisdiction to regulate hunting and fishing by tribal members......

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