Lower Brule Sioux Tribe v. State of S.D.

• Decision Date: 26 July 1983
• Docket Number: 82-1636,Nos. 82-1635,s. 82-1635
• Citation: 711 F.2d 809
• Parties: LOWER BRULE SIOUX TRIBE, Appellant, v. STATE OF SOUTH DAKOTA, and Jack Merwin, Secretary, Division of Game, Fish and Parks for the State of South Dakota, Appellees. LOWER BRULE SIOUX TRIBE, Appellee, v. STATE OF SOUTH DAKOTA, and Jack Merwin, Secretary, Division of Game, Fish and Parks for the State of South Dakota, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 809

711 F.2d 809

LOWER BRULE SIOUX TRIBE, Appellant, v. STATE OF SOUTH DAKOTA, and Jack Merwin, Secretary, Division

of Game, Fish and Parks for the State of South

Dakota, Appellees.

LOWER BRULE SIOUX TRIBE, Appellee, v. STATE OF SOUTH DAKOTA, and Jack Merwin, Secretary, Division

of Game, Fish and Parks for the State of South

Dakota, Appellants.

Nos. 82-1635, 82-1636.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1983.

Decided June 27, 1983.

Rehearing and Rehearing En Banc

Denied July 26, 1983.

Charles A. Hobbs, Washington, D.C., for amicus curiae Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Wilkinson, Cragun & Barker, Susan O. Berghoef, Washington, D.C., of counsel.

Mark V. Meierhenry, Atty. Gen., Robert L. Timm, Chief Deputy Atty. Gen., Mikal Hanson, Asst. Atty. Gen., Pierre, S.D., for appellee/cross-appellant.

Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Steven S. Anderson, Alvin J. Ziontz, Seattle, Wash., and Sonosky, Chambers, Sachse & Guido, Reid P. Chambers, Lloyd P. Miller, Washington, D.C., for Standing Rock Sioux Tribe.

Fried, Frank, Harris, Shriver & Kampelman, Washington, D.C., for Cheyenne River Sioux Tribe.

James R. McCurdy, Spokane, Wash., for Crow Creek Sioux Tribe.

R. Dennis Ickes of R. Dennis Ickes, P.C., Salt Lake City, Utah, and William J. Srstka, Jr. of Duncan, Olinger, Srstka, Lovald & Robbenholt, P.C., Pierre, S.D., for appellant/cross-appellee.

Before HEANEY and FAGG, Circuit Judges, and MAGNUSON, ^* District Judge.

HEANEY, Circuit Judge.

This action involves a dispute between the State of South Dakota and the Lower Brule Sioux Tribe over which of them will regulate hunting and fishing activity at the Fort Randall and Big Bend dam and reservoir projects. Between 1954 and 1962, the United States acquired portions of the Lower Brule Sioux Reservation along the Missouri River to construct the Fort Randall and Big Bend projects. South Dakota seeks to exercise exclusive jurisdiction over hunting and fishing on the reservation land taken by the federal government for these projects. The state contends that the federal statutes authorizing the Fort Randall and Big Bend projects diminished the Lower Brule Reservation to the extent of the land taken by the United States, and abrogated the hunting and fishing rights guaranteed by treaty to the Lower Brule Sioux on that taken land.

The Lower Brule Sioux Tribe (hereafter Lower Brule Tribe or Tribe) contends that the Fort Randall and Big Bend projects did not alter the reservation boundaries or the Indian hunting and fishing rights established by the Fort Laramie Treaty of 1868. The Tribe claims that state jurisdiction threatens its territorial integrity because state law generally applies to Indians outside of the reservation and because tribal members use the taken areas for hunting, fishing and other activities. Moreover, it argues that because South Dakota hunting and fishing laws do not recognize Indians as having rights distinct from the general public, state jurisdiction over the taken land threatens the livelihood of tribal members who depend on hunting and fishing for subsistence.

On cross motions for summary judgment, the district court held that South Dakota has exclusive jurisdiction to regulate hunting

                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 statutes authorizing the Fort Randall and Big Bend projects, we reverse.   We hold that absent federal regulation, the Tribe possesses exclusive jurisdiction to regulate hunting and fishing by tribal members on the reservation land taken for the two projects
                

I. BACKGROUND

In the Fort Laramie Treaties of 1851, 11 Stat. 749 (1851), and 1868, 15 Stat. 635 (1868), Congress established the boundaries of the Great Sioux Reservation. See United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). The Treaty of 1868 explicitly reserved the right of the Sioux to hunt and fish within certain delineated areas of the Great Sioux Reservation, including the area which is the subject of this action. In the Sioux Agreement of March 2, 1889, Congress divided the Great Sioux Reservation into several smaller ones, including the Lower Brule Reservation. 25 Stat. 888 (1889). The Lower Brule Reservation consisted of approximately 446,500 acres located in central South Dakota adjacent to and extending westward from the Missouri River. The 1889 Agreement established the reservation's eastern boundary at "the center of the main channel of the Missouri River" extending from "Old Fort George" south to "Fort Lookout." Id. at 889.

In the General Allotment Act of 1887, 24 Stat. 388 (1887), Congress empowered the President to allot land from all Indian reservations to tribal members and with tribal consent, to sell the surplus land to white settlers. In 1899, 30 Stat. 1362 (1899), and again in 1906, 34 Stat. 124 (1906), Congress opened to settlement land on the western and southern portions of the Lower Brule Reservation. As a result of these congressional enactments, over 200,000 acres of that reservation were opened to settlement by nonmembers of the Tribe; but the reservation's eastern boundary on the Missouri River was not altered, nor was land along the river opened for settlement.

In the Flood Control Act of 1944, Pub.L. No. 78-534, 58 Stat. 887 (1944) (codified as amended at 16 U.S.C. § 460d (1976)), Congress authorized the establishment of a comprehensive flood control plan along the Missouri River, the Missouri River Basin Project. The 1944 Act did not authorize the acquisition of Indian property, but seven subsequent statutes authorized limited takings of Indian lands for specific hydroelectric and flood control dams on the Missouri River in North and South Dakota. ¹ These dams created huge lake-like reservoirs to control the Missouri River's seasonal flooding and to end the periodic devastation caused downstream. The Indian lands taken were of great value because the river bottomland was well suited for raising and grazing domestic animals and was rich in game, and the river was well stocked with fish.

The lands taken for two of these flood control projects--the Fort Randall and the Big Bend--are at issue here. To construct these two projects, the United States acquired tribal and trust lands from the Lower Brule Tribe on the eastern boundary of its reservation along the Missouri River. By Act of July 6, 1954, Congress directed the Corps of Engineers to construct the Fort Randall Dam and Reservoir project. Pub.L. No. 83-478, 68 Stat. 452 (1954). Thereafter, the Corps commenced eminent Both the State of South Dakota and the Tribe have sought to exercise jurisdiction over the land taken from the Lower Brule Reservation by the United States for these two projects, and the Tribe and state occasionally have adopted conflicting hunting and fishing regulations. For example, South Dakota prohibits the use of lead or other toxic shot for hunting water fowl, while the Tribe does not. In the past, the Tribe and state have established different water fowl hunting and fishing season restrictions. Both the Tribe and the state seek to derive income through hunting and fishing fees and licenses for the taken areas, and both have established their own wildlife refuges within the Big Bend taking area.

                domain proceedings in federal district court to acquire the necessary land on the Lower Brule Reservation.  United States v. 7,996.92 Acres of Land, More or Less, in Lyman County, South Dakota, Civ. No. 186 C.D.  (June 25, 1963).   In September, 1958, Congress enacted Pub.L. No. 85-923, 72 Stat. 1773 (1958) (hereafter Fort Randall Act) to provide compensation to the Tribe and its members for the land taken to construct the Fort Randall Dam and Reservoir Project.   In October 1962, Congress passed Pub.L. No. 87-734, 76 Stat. 698 (1962) (hereafter Big Bend Act), which authorized the acquisition of and payment for tribal and trust lands on the Lower Brule Reservation needed for the Big Bend Dam and Reservoir Project
                

Because the Tribe was concerned that the state's efforts to exercise jurisdiction over hunting and fishing within the Fort Randall and Big Bend taking areas threatened the livelihood of its members as well as the territorial integrity of its reservation, it commenced this action in the court below seeking declaratory and injunctive relief. The Tribe requested a declaration that South Dakota lacked jurisdiction to regulate the hunting and fishing activities of any person within the exterior boundaries of the Lower Brule Reservation, including the Fort Randall and Big Bend taking areas. It also sought to enjoin the state from applying and enforcing its hunting and fishing laws against both members and nonmembers of the Tribe within the reservation boundaries. The state counterclaimed seeking a declaration that it possessed exclusive jurisdiction to regulate hunting and fishing by all persons within the area taken for the Fort Randall and Big Bend projects. It contended that the Flood Control, Fort Randall, and Big Bend Acts diminished the Lower Brule Reservation to the extent of the taken area and that these acts abrogated the provisions of the 1868 Fort Laramie Treaty reserving the Tribe's hunting and fishing rights within those areas.

On cross motions for summary judgment, the district court held that although the Big Bend Act did not diminish the Lower Brule Reservation, the Fort Randall Act effected a diminishment to the extent of the land taken for the Fort Randall Dam and Reservoir Project. The court further held that the Flood Control, Fort Randall, and Big Bend Acts together abrogated the rights of the Lower Brule Tribe under the 1868 Fort Laramie Treaty to hunt,...