Lower Brule Sioux Tribe v. State of South Dakota, Civ. 91-3036.

Decision Date08 February 1996
Docket NumberCiv. 91-3036.
Citation917 F. Supp. 1434
PartiesLOWER BRULE SIOUX TRIBE, Plaintiff, v. STATE OF SOUTH DAKOTA, and John Cooper, Secretary, Division of Game, Fish and Parks for the State of South Dakota, Defendants.
CourtU.S. District Court — District of South Dakota

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R. Dennis Ickes, Nielsen & Senior, Salt Lake City, UT, Julian H. Brown, Pierre, SD, for plaintiff.

John P. Guhin, John E. Haak, Attorney General's Office, Pierre, SD, for defendant.

MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BATTEY, Chief Judge.

                                      TABLE OF CONTENTS
                NATURE AND PROCEDURAL HISTORY ....................................... 1439
                FACTS ............................................................... 1440
                SUMMARY JUDGMENT STANDARD ........................................... 1443
                DISCUSSION........................................................... 1443
                      A. INDIAN SOVEREIGNTY ......................................... 1443
                      B. JURISDICTION OVER FEE LANDS AND WATERS ..................... 1444
                         1. Legal Precedent ......................................... 1444
                         2. Treaty Rights ........................................... 1446
                         3. Inherent Sovereignty .................................... 1447
                            a. The First Montana Exception .......................... 1447
                            b. The Second Montana Exception ......................... 1447
                         4. State Jurisdiction ...................................... 1449
                      C. JURISDICTION OVER TAKEN AREA LANDS AND WATERS .............. 1452
                         1. Legal Precedent ......................................... 1452
                         2. Treaty Rights ........................................... 1453
                
                         3. Inherent Sovereignty .................................... 1454
                            a. The First Montana Exception .......................... 1454
                            b. The Second Montana Exception ......................... 1454
                         4. State Jurisdiction ...................................... 1455
                CONCLUSION .......................................................... ____
                
NATURE AND PROCEDURAL HISTORY

This litigation was first commenced on August 4, 1980, when the Lower Brule Sioux Tribe (hereinafter "Tribe") filed suit against the State of South Dakota and the acting Secretary of Game, Fish, and Parks (hereinafter "State"). The Tribe sought both injunctive relief and a declaration of the rights of the parties with respect to the enforcement of hunting and fishing laws as to Indians and non-Indians within the exterior boundaries of the Lower Brule Sioux Reservation (hereinafter "Reservation"). On cross motions for summary judgment, the Court reserved ruling on matters pertaining to the land outside the Fort Randall1 and Big Bend2 taken areas, but did hold that the State had exclusive jurisdiction 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 members, concluding that the Tribe possessed exclusive jurisdiction to regulate hunting and fishing by tribal members in the taken areas and remanded the case for a redetermination as to the regulation of nonmember Indians within the taken areas. Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 813 (8th Cir.1983).

On October 24, 1986, the parties entered into a Memorandum of Agreement,3 thereby obviating any necessity for further hearing on remand. This five-year agreement expired on October 23, 1991. The parties did not agree on an extension or modification of the agreement; accordingly, the Tribe commenced this action on October 24, 1991. The issues presented involve a determination of the respective authority of the State and the Tribe as to the regulation of hunting and fishing by nonmember Indians and non-Indians on fee lands and Corps lands within the exterior boundaries of the Reservation.4 It is important to understand what this decision does not concern. It is not about State regulation of tribal members on any land within the exterior boundaries of the Reservation.

The Court held an evidentiary hearing on November 8, 1991, on the issue of preliminary injunctive relief. It issued its preliminary injunction continuing the terms of the 1986 agreement. Before the Court could hold a hearing on permanent injunctive relief, it removed the case from its trial calender, staying the action pending the final resolution of South Dakota v. Bourland, 949 F.2d 984 (8th Cir.1991) (Bourland II), a case involving similar issues affecting the Cheyenne River Sioux Tribe. The issue in Bourland II was whether the Cheyenne River Sioux Tribe, located further upstream on the Missouri River, had authority to regulate non-Indian hunting and fishing on lands within the boundaries of its reservation. This land was taken by the United States for the construction and operation of the Oahe Dam and Reservoir, a flood control project of the United States Army Corps of Engineers. Bourland II was decided by the Eighth Circuit on November 21, 1991. When the Supreme Court granted certiorari, this Court continued its stay. The Supreme Court issued its decision on June 14, 1993.5 Finally, upon remand, the Eighth Circuit Court of Appeals resolved the remaining issues presented by Bourland III.6

On September 11, 1995, this case proceeded. The State filed a motion for summary judgment requesting the Court to find that the State has exclusive jurisdiction over nonmember Indians and non-Indians hunting and fishing on the lands and waters within the boundaries of the Reservation and within the Fort Randall and Big Bend taken areas, as well as the lands and waters owned in fee by any nonmember Indian. Appropriate responses have been filed. Accordingly, this Court has jurisdiction under 28 U.S.C. § 1362.

FACTS

Congress established the boundaries of the Great Sioux Nation in the Fort Laramie Treaty of 1851, 11 Stat. 749 (1851), and 1868, 15 Stat. 635 (1868). See United States v. Sioux Nation of Indians, 448 U.S. 371, 374-77, 100 S.Ct. 2716, 2720-21, 65 L.Ed.2d 844 (1980). The Lower Brule Sioux Reservation was created by act of Congress on March 2, 1889, 25 Stat. 888, which divided the Great Sioux Nation and described the Reservation boundaries. The present day Reservation is centrally located in South Dakota, bounded on the northeast and east by the Missouri River. It is located in the northeastern two-thirds of Lyman County, with a small portion in the southeastern corner of Stanley County. The northwestern corner of the Reservation is approximately 15 miles southeast of Pierre, South Dakota, the state capital. The southeastern corner of the Reservation is approximately eight miles northwest of Chamberlain, which is north of United States Interstate 90. The Reservation is served by state highway 47 and state highway 1806 which traverses the Reservation generally following the course of the Missouri River. The Reservation community of Lower Brule is located approximately eight miles northwest of Big Bend Dam, a large earthen dam spanning the river, creating Lake Sharp. The Fort Randall Dam, located at Pickstown, is a large mainstream dam which backs water several miles upstream, as far as the Big Bend Dam. The Fort Randall Dam created Lake Francis Case.

Pursuant to the Indian Reorganization Act of 1934, the Tribe was incorporated and its constitution approved by the Secretary of Interior on November 27, 1935. Act of June 18, 1934, 48 Stat. 984, (as amended by the Act of June 15, 1935 (Pub.L. No. 74-147)). The Tribe's membership consists of all persons of Indian blood whose names appeared on the tribal roll as of April 1, 1935, including all children born to any such member resident of the Reservation at the time of their birth. The membership also includes children born to any member after the effective date of the tribal constitution and possessing at least one-fourth degree Lower Brule Indian blood regardless of the residence of the parents at the time of their birth. The Tribe's population as of the 1983 census was 1,035 resident Indians, with a total tribal enrollment of 1,791. Approximately 10 percent of the residents on the Reservation are nonmembers, consisting principally of employees of the BIA Indian Health Service and nonmember ranchers living on the Reservation.

This litigation involves two separate land classifications within the Reservation — fee land and taken area land. The first class of land is fee lands owned by either members or nonmembers and acquired through the process of allotment. The General Allotment Act of 1887 effectuated the congressional policy of forcing Indian tribes to assimilate into the white culture by authorizing the issuance of fee patents to individual tribal members. Dawes General Allotment Act, 24 Stat. 388 (1887), (codified as amended at 25 U.S.C. § 331 et seq.). Section 5 of the Act contemplated that "surplus" land which was not required for the fixed-acreage allotments to tribal members would eventually be opened to non-Indian settlement under the public lands program. See Robert N. Clinton et al., American Indian Law 146-52 (3d ed. 1991). Legislation aimed at opening the Reservation to non-Indian development was enacted in 1899, 30 Stat. 1362, and in 1906, 34 Stat. 124. The piecemeal sale of Indian lands up to the time of the Indian Reorganization Act of 1934 has created what is often referred to as a "checkerboard" map of trust and tribal lands, allotted lands,7 and fee lands.

The original area of the Reservation which was approximately 446,500 acres has been diminished to the present size of approximately 235,800 acres. Of the 235,800 acres within the Reservation boundaries, only 119,900 acres remain in Indian ownership for Indian...

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