Lower Brule Sioux Tribe v. State of S.D., 96-1692

• Decision Date: 05 March 1997
• Docket Number: No. 96-1692,96-1692
• Parties: 27 Envtl. L. Rep. 20,700 LOWER BRULE SIOUX TRIBE, Appellant, v. STATE OF SOUTH DAKOTA; John Cooper, Secretary, Division of Game, Fish & Parks for the State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1017

104 F.3d 1017

27 Envtl. L. Rep. 20,700

LOWER BRULE SIOUX TRIBE, Appellant, v. STATE OF SOUTH DAKOTA; John Cooper, Secretary, Division of

Game, Fish & Parks for the State of South Dakota, Appellees.

No. 96-1692.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 24, 1996.

Filed Jan. 9, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied March

5, 1997. ^*

R. Dennis Ickes, Salt Lake City, UT, argued (Cathleen Clark and Julian H. Brown, on the brief), for appellant.

Charles D. McGuigan, Pierre, SD, argued (Mark T. Barnett and John P. Guhin, on the brief), for appellee.

Before BOWMAN, HEANEY, and BEAM, Circuit Judges.

HEANEY, Circuit Judge.

This case involves a long-standing dispute between the Lower Brule Sioux Tribe ("Tribe") and the State of South Dakota and the Secretary of the State Game, Fish & Parks Division ("State") concerning regulatory jurisdiction over hunting and fishing by nonmembers of the Tribe on nonmember-owned fee lands and waters and taken areas within the boundaries of the Lower Brule Sioux Reservation ("Reservation"). The Tribe brought this action to enjoin the State from enforcing its hunting and fishing laws over any person within the boundaries of the Reservation. The Tribe also sought declaratory relief that the State is barred from exercising any regulatory authority over hunting or fishing within the Reservation. Since this litigation began in 1980, the Supreme Court has handed down several important decisions relating to Indian sovereignty and tribal regulatory authority on different land classifications within Reservation boundaries. Accordingly, the district court determined that this action is substantially controlled by South Dakota v. Bourland ("Bourland III"), 508 U.S. 679, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993), rev'g, 949 F.2d 984 (8th Cir.1991), Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989) (plurality), and Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Following this line of authority, the district court granted the State's motion for summary judgment. We agree that this result follows Supreme Court precedent and affirm.

I.

This case began over sixteen years ago when the Tribe sought to enjoin the State from enforcing its fish and wildlife regulations on fee lands and taken lands within the boundaries of the Reservation and to obtain a declaratory judgment that the Tribe has exclusive regulatory jurisdiction over hunting and fishing by any person within Reservation boundaries. In the first phase of the litigation, the district court reserved ruling on matters pertaining to fee lands. With respect to lands taken by the Army Corps of Engineers for flood control projects at Fort Randall and Big Bend, the court held that the respective taking acts diminished the Reservation thereby 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 in the taken areas and remanding for reconsideration of who has jurisdiction to regulate hunting and fishing by nonmembers within the Fort Randall and Big Bend taken areas. Lower Brule Sioux Tribe v. South Dakota ("Lower Brule II "), 711 F.2d 809, 813, 827 (8th Cir.1983). Before trial, however, the Tribe and the State entered into a five-year cooperation agreement. Unfortunately, this agreement was not renewed; and when it expired on October 24, 1991, the Tribe brought this action to enjoin the State from enforcing its hunting and fishing laws over any person on fee lands and taken lands within the boundaries of the Reservation and to bar the State from attempting to regulate hunting and fishing on those lands in the future. The district court entered a preliminary injunction against the State on November 13, 1991, in effect, continuing the terms of the expired five-year agreement between the parties. After extensive discovery by both sides, the State filed a motion for summary judgment on September 11, 1995. On February 8, 1996, after the Tribe filed its second response to the motion, the district court granted the State's motion for summary judgment. Lower Brule Sioux Tribe v. South Dakota ("Lower Brule III "), 917 F.Supp. 1434, 1457 (D.S.D.1996). Applying the analytical framework of Montana, Bourland III, and Brendale, the court held (1) Congress has abrogated any treaty rights that provided the Tribe with the authority to regulate hunting and fishing by nonmembers on both fee lands and waters and in the taken areas; (2) the Tribe's inherent sovereignty does not extend to the regulation of hunting and fishing by nonmembers on fee or taken lands either by virtue of a consensual relationship with the Tribe or because of a threat to the political integrity, economic security, or health and welfare of the Tribe; and (3) the State has exclusive jurisdiction to regulate nonmember hunting and fishing within both the fee and taken areas at issue. The Tribe appeals, arguing both that there are disputed material facts that make summary judgment inappropriate and that the court erred as a matter of law in determining that the State has exclusive jurisdiction to regulate hunting and fishing on non-trust lands within the Reservation.

II.

To provide some context for this dispute, we begin with a basic history of the Lower Brule Sioux Reservation. A more comprehensive background discussion, with particular detail about the relevant treaties and taking acts, is contained in Lower Brule I, 540 F.Supp. at 278-86.

The Fort Laramie Treaties of 1851, 11 Stat. 749 (1851), and 1868, 15 Stat 635 (1868), established the boundaries of the Great Sioux Nation. See United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). The Lower Brule Sioux Reservation was established as part of a March 2, 1890 act of Congress that divided the Great Sioux Nation into five smaller ones. See 25 Stat. 888 (1889). The Reservation is situated in central South Dakota in northeastern Lyman County and extends slightly into the southeastern corner of Stanley County. The Reservation is bounded on the northeast and east by the Missouri River. The original area of the Reservation, which consisted of 446,500 acres, was twice diminished by Congress: first by the Act of March 3, 1899, 30 Stat. 1362 (1899), and second by the Act of April 21, 1906, 34 Stat. 124 (1906). The present Reservation consists of approximately 235,800 acres.

The two classifications of Reservation areas at issue in this litigation are nonmember-owned fee lands and waters and the areas taken by the Army Corps of Engineers for two flood control projects. Approximately 56,634 acres, or roughly one-quarter of the total Reservation land, is deeded land held in fee by either members or nonmembers of the Tribe. Under the Indian General Allotment Act, 24 Stat. 388 (1887), significant portions of the Reservation were allotted to individual tribal members as part of Congress's widespread attempt to disestablish reservations and to force Indians to assimilate into the dominant white culture modeled on individual property ownership. After a period of years during which the allotments were held in trust, fee patents were issued. See id. at 398 § 5. Assisted by legislation aimed at opening the Reservation to non-Indian development, see, e.g., 30 Stat. 1362 (1899), 34 Stat. 124 (1906), piecemeal sales of fee lands up to the time of the Indian Reorganization Act of 1934 created what is often called a "checkerboard" map of trust lands, tribal lands, allotted lands, and fee lands. The boundaries between the variously classified lands are not marked, making it difficult for persons on the Reservation to determine the ownership status of any given site.

The other relevant land classification is land taken under the United States' power of eminent domain for construction of two projects as part of a comprehensive flood control plan for the Missouri River as authorized by the Flood Control Act of 1944, Pub.L. No. 78-534, 58 Stat. 887 (1944). Two taking Acts established the territory now at issue: the Fort Randall Taking Act, Pub.L. No. 85-923, 72 Stat. 1773 (1958), and the Big Bend Taking Act, Pub.L. No. 87-734, 76 Stat. 698 (1962). Collectively, the projects required the taking of 22,296 acres of Indian lands. Under the terms of the Fort Randall Taking Act, the Tribe maintained the right to graze stock on the land and a right of free access for members to hunt and fish. According to the Big Bend Taking Act, the United States acquired the "entire interest" of the Tribe, including gravel and any interest the Tribe may have had within the bed of the Missouri River; the Tribe maintained the right to graze on the land and free access for hunting and fishing.

III.

We review the district court's grant of summary judgment de novo, applying the same standard as the district court. LeBus v. Northwestern Mut. Life Ins. Co., 55 F.3d 1374, 1376 (8th Cir.1995). Summary judgment is appropriate if the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986). As explained by the district court:

[T]he facts and inferences from those facts are viewed in the light most favorable to the nonmoving party and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-90, 106 S.Ct. 1348, 1355-58, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not...