Rosebud Sioux Tribe v. Kneip

Decision Date16 July 1975
Docket NumberNo. 74-1211,74-1211
Citation521 F.2d 87
PartiesROSEBUD SIOUX TRIBE, Appellant-Plaintiff, v. Honorable Richard KNEIP et al., Appellees-Defendants.
CourtU.S. Court of Appeals — Eighth Circuit

Marvin J. Sonosky, Washington, D. C., for appellant-plaintiff.

William F. Day, Jr., and Tom D. Tobin, Winner, S. D., for appellees-defendants.

Neil T. Proto, Dept. of Justice, Washington, D. C., for amicus curiae, United States.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, * Senior District Judge.

TALBOT SMITH, Senior District Judge.

The complaint before us seeks that we declare that the original "boundaries of the (Rosebud Indian) reservation as fixed by the 1889 Act, were not affected by the three 'surplus' land statutes of 1904, 1907, and 1910." 1 It follows, according to plaintiff's (hereinafter the Tribe's) theory that the areas involved, namely, all or parts of the Counties of Gregory, Tripp, Lyman and Mellette, in the State of South Dakota, remain a part of the Rosebud Reservation and are subject to the appropriate federal and tribal powers and jurisdiction. 2

As originally delimited the Rosebud Indian Reservation contained over 3 million acres. Three-fourths of this area, all the original reservation outside Todd County, South Dakota, is involved in this action. The three Acts we are asked to construe disposed of all lands in this area which were not allotted to the Indians. 3 Most of the unallotted lands were sold to homesteaders under the terms of the three Acts. About ninety percent of the present population in the disputed area is non-Indian. 4 The defendants Kneip and Mydland, the Governor and Attorney General of South Dakota, assert that the area involved was settled and developed by non-Indians in partial reliance upon the removal of their lands from the exterior boundaries of the reservation, 5 and that the Acts in question were intended to and did effectuate the alteration of the reservation boundaries to exclude the areas therein opened for settlement.

The court below rejected the Tribe's tendered theories in support of its argument that the boundaries of the reservation as defined in the Act of March 2, 1889 had not been changed. It held that the surrounding circumstances and legislative history of the Acts made it clear that it was the congressional intent to separate each of the counties concerned and to extinguish the reservation status of those counties. Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (D.S.D.1974). We agree and we affirm.

In view of the many authorities cited to us, we deem it pertinent to note at the outset that they are of limited utility and we comment only on those deemed relevant to decision herein. Save as to broad generalities the holding in any particular case will depend upon circumstances applicable to that case, including among others, specific treaty or statutory provisions. Secretary Ickes, in his foreword to Cohen's Handbook of Federal Indian Law, speaks of "the complexity of the body of Indian law, based upon more than 4,000 treaties and statutes and upon thousands of judicial decisions and administrative rulings, rendered during a century and a half." 6 Obviously, separate treaties and agreements with separate tribes must be separately construed.

It is clear from the reported cases that, despite numerous differences in specific fact situations, the overriding judicial inquiry remains unchanged, namely, the congressional intent. Thus in Seymour v. Superintendent, 368 U.S. 351, 356, 82 S.Ct. 424, 427, 7 L.Ed.2d 346 (1961), in holding that the 1906 Act of Congress there involved did not extinguish the Colville Indian Reservation, the Court relied repeatedly on materials from which it "seem(ed) clear that the purpose of the 1906 Act was neither to destroy the existence of the diminished Colville Indian Reservation nor to lessen federal responsibility for and jurisdiction over the Indians having tribal rights on that reservation." Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973) utilizes the same test for disestablishment, namely, "A congressional determination to terminate * * * expressed on the face of the Act or * * * clear from the surrounding circumstances and legislative history." We are aware of course, that much modern thinking respecting the culture and welfare of the Indians is at marked variance with that of the period we now survey, that around the turn of the century. But we do not sit to rewrite the legislation of decades past. We look to the congressional intent when it was written viewing the totality of the circumstances from the record in its entirety. The Tribe urges the lack of "express language extinguishing tribal title, or placing the land in the public domain, or altering the boundaries of the reservation." But here the Tribe misapprehends the applicable criteria. 7 Precise verbal formulae of extinguishment or alteration of boundaries, however apt or helpful, are not a sine qua non of disestablishment. We seek, as we said, the congressional intent, which may be variously expressed.

Our guidelines were most recently stated in DeCoteau v. District County Court, --- U.S. ---, --- - ---, 95 S.Ct. 1082, 1092-93, 43 L.Ed.2d 300 (1975) wherein it was held:

This Court does not lightly conclude that an Indian reservation has been terminated. "(W)hen Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress." United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195. The congressional intent must be clear, to overcome "the general rule that '(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' " McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, at 174, 93 S.Ct. 1257, at 1263, 36 L.Ed.2d 129 quoting Carpenter v. Shaw, 280 U.S. 363, at 367, 50 S.Ct. 121, at 122, 74 L.Ed. 478. Accordingly, the Court requires that the "congressional determination to terminate . . . be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history."

Mattz v. Arnett, 412 U.S., at 505, 93 S.Ct. at 2258. See also Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346, and United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192. In particular, we have stressed that reservation status may survive the mere opening of a reservation to settlement, even when the moneys paid for the land by the settlers are placed in trust by the Government for the Indian's benefit. Mattz v. Arnett, supra, and Seymour v. Superintendent, supra.

It is clear from DeCoteau that our inquiry may encompass all materials reasonably pertinent to the legislation, 8 including the debates thereon and official correspondence with respect thereto, and administrative treatment of the area; 9 as well as those bearing upon the historical context of its passage, such as the social forces then at work in the area and particularly the demands of our westward moving society arrayed against the contesting demands of the Indians for their culture and support. 10

The original Rosebud Reservation was an area of great extent. Subsequent to its delineation, however, the "familiar forces" above noted came into operation. Gregory County, in particular, "had been anxious to acquire that portion of the Rosebud Reservation within its boundaries, ostensibly because the county government could not be maintained by the number of settlers on the small amount of non-reservation land available within it. After nearly two years, the county obtained the assistance of the very able congressional delegation from South Dakota, and under their direction the processes of acquisition were set in motion." 11

Opposed to such acquisition, however, stood not only the reservation area as fixed under the 1889 Act but, indeed, the way of life of the Sioux:

Over a vast tract of country the Teton Sioux ranged in historical times. The territory of Dakota, to which he gave the name of his nation, Dakota, friends, was his pasture and his hunting-ground, and he has been far removed from his allies and relatives, the Santees of the eastern bands, for many years. By the right of might and pre emption, the Sioux had a kingdom for his back yard and an empire for his pasture. For hundreds of miles he had a free hand, and knew no bound when he rode west through the buffalo grounds on the far side of the Missouri, until he stopped to reconnoitre the country of the Crows on the west, and the home of the Piegans, Bloods, and Blackfeet to the northwest. 12

Obviously adjustments between these competing forces had to be made. It was Inspector McLaughlin who was assigned the first step in the desired acquisition of Gregory County, that of reaching agreement with the Sioux. He describes his mission, and its attainment, in the following terms:

Three years later (in 1901) I went to these same Indians with a proposition involving an agreement for the cession of a great body of land that was required for settlement by the whites. The land lay in Gregory County, South Dakota, and there were about four hundred and sixteen thousand acres in the tract. The deal was a big one, and there were many big talks. The Indian had come to a proper appreciation of the value of his holdings, and the government had not yet taken the position that there should be no appropriation for the purchase of the lands needed, that the government would only take over the lands and dispose of them to settlers, holding the funds in trust for the Indians, but guaranteeing nothing, except that there would be a fixed price per acre charged to the settlers. The Rosebuds did not like the deal, and it was a case where I had to use personal influence to bring the agreement about. The people of South Dakota were very anxious to...

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