Rosebud Sioux Tribe v. State of S.D.

• Decision Date: 08 June 1990
• Docket Number: Nos. 89-5227,89-5228 and 89-5252,s. 89-5227
• Parties: ROSEBUD SIOUX TRIBE, Appellant, Cheyenne River Sioux Tribe, Intervenor, Oglala Sioux Tribe, Standing Rock Sioux Tribe, Appellants, v. STATE OF SOUTH DAKOTA; George S. Mickelson, Governor; Roger Tellinghuisen, Attorney General; Jim Jones, Superintendent of the Highway Patrol, In Their Official Capacities, Appellees. ROSEBUD SIOUX TRIBE, Cheyenne River Sioux Tribe, Appellant, Oglala Sioux Tribe and Standing Rock Sioux Tribe, Intervenors-Plaintiffs Below, v. STATE OF SOUTH DAKOTA; George S. Mickelson, Governor; Roger Tellinghuisen, Attorney General; Jim Jones, Superintendent of the Highway Patrol, In Their Official Capacities, Appellees. ROSEBUD SIOUX TRIBE, Appellee, Cheyenne River Sioux Tribe, Oglala Sioux Tribe, Standing Rock Sioux Tribe, (Plaintiff/Intervenors Below) Appellees, v. STATE OF SOUTH DAKOTA; George S. Mickelson, Governor; Roger Tellinghuisen, Attorney General; Jim Jones, Superintendent of the Highway Patrol, In Their Official Capacities, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1164

900 F.2d 1164

ROSEBUD SIOUX TRIBE, Appellant, Cheyenne River Sioux Tribe, Intervenor, Oglala Sioux Tribe, Standing Rock Sioux Tribe, Appellants, v. STATE OF SOUTH DAKOTA; George S. Mickelson, Governor;

Roger Tellinghuisen, Attorney General; Jim Jones,

Superintendent of the Highway Patrol, In

Their Official Capacities, Appellees.

ROSEBUD SIOUX TRIBE, Cheyenne River Sioux Tribe, Appellant, Oglala Sioux Tribe and Standing Rock Sioux Tribe, Intervenors-Plaintiffs Below, v. STATE OF SOUTH DAKOTA; George S. Mickelson, Governor;

Roger Tellinghuisen, Attorney General; Jim Jones,

Superintendent of the Highway Patrol, In

Their Official Capacities, Appellees.

ROSEBUD SIOUX TRIBE, Appellee,

Cheyenne River Sioux Tribe, Oglala Sioux Tribe, Standing

Rock Sioux Tribe, (Plaintiff/Intervenors Below) Appellees, v. STATE OF SOUTH DAKOTA; George S. Mickelson, Governor;

Roger Tellinghuisen, Attorney General; Jim Jones,

Superintendent of the Highway Patrol, In

Their Official Capacities, Appellants.

Nos. 89-5227, 89-5228 and 89-5252.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1989.

Decided March 16, 1990.

Rehearing and Rehearing En Banc Denied June 8, 1990.

William R. Perry, Washington, D.C., for appellants.

Terry L. Pechota, Finch, Viken, Vicken & Pechota, Rapid City, S.D., for Rosebud Sioux Tribe.

Marvin Amiotte, Pine Ridge, S.D., for Oglala Sioux Tribe.

Scott McElroy, Boulder, Colo., for Cheyenne River Sioux Tribe.

John P. Guhin, Pierre, S.D., for appellees.

Before LAY, Chief Judge, McMILLIAN and WOLLMAN, Circuit Judges.

LAY, Chief Judge.

This action was originally commenced by the Rosebud Sioux Tribe, later joined by the Cheyenne River Sioux Tribe, the Oglala Sioux Tribe and the Standing Rock Sioux Tribe (the Tribes), to enjoin the State of South Dakota from exercising civil and criminal jurisdiction over highways running through Indian land ¹ in the state. The district court ² upheld the state's assertion

of jurisdiction. The Tribes have appealed; the state has cross-appealed the district court's finding that its jurisdiction is concurrent with tribal authorities. We find the district court erred. Absent tribal consent, we hold the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state. We reverse and remand to the district court to enter judgment in favor of the Tribes.

BACKGROUND

When South Dakota was admitted to the Union, an act of Congress required a disclaimer of jurisdiction over Indian land be included in the state constitution:

[T]he people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.

Act of Feb. 22, 1889, ch. 180, Sec. 4, 25 Stat. 676. See also S.D. Const. art. XXII; id., art. XXVI, Sec. 18. ³ In 1953, Congress modified the federal-tribal scheme of jurisdiction over Indian land to allow states to assume jurisdiction over Indians within the state. See Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, codified in part at 18 U.S.C. Sec. 1162 (1988) (P.L. 280). While P.L. 280 allowed an express, immediate cession of jurisdiction to some states, see 18 U.S.C. Sec. 1162(a), ⁴ other states fell within the provisions of sections 6 and 7 of P.L. 280, which provided the option of assuming jurisdiction. Section 7 of P.L. 280 provided:

The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both as provided for in the Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislation, obligate and bind the State to assumption thereof.

P.L. 280, Sec. 7, 67 Stat. 588, 589, repealed by Act of Apr. 11, 1968, Pub.L. 90-284, Sec. 403, Title IV, 82 Stat. 73, 79.

South Dakota responded to the congressional offer of jurisdiction in 1957 with legislation accepting criminal and civil jurisdiction if the affected Tribes consented. See S.D. Codified Laws Ann. Secs. 1-1-12--16 (1985). Since tribal consent was not given, jurisdiction was never assumed under this law. In 1959, South Dakota enacted a statute assuming jurisdiction over highways jointly maintained with the federal government. See S.D. Codified Laws Ann. Sec. 1-1-17. The prerequisite to assumption of jurisdiction in this statute, that the roads be jointly maintained by the state and federal government, was never met. Thus, these statutes, which appear in the current codification of South Dakota's statutes, ⁵ remain inoperative. See In re High Pine, 78 S.D. 121, 99 N.W.2d 38 (1959).

In 1961, South Dakota enacted the legislation that is at issue in this case. This legislation accepted all civil and criminal jurisdiction, conditioned on federal reimbursement, with a notable exception:

The state of South Dakota, in accordance with the provisions of 67 Statutes at * * * *

Large, page 589 (Public Law 280), hereby assumes and accepts jurisdiction of all criminal offenses and civil causes of action arising in the Indian country located within this state, as Indian country is defined by Title 18 United States Code, section 1151, and obligates and binds this state to the assumption thereof[.]

Except as to criminal offenses and civil causes of action arising on any highways, as the term is defined in chapter 31-1, the jurisdiction provided for in Sec. 1-1-18 shall not be deemed assumed or accepted by this state, * * * unless and until the Governor of the state of South Dakota, if satisfied that the United States of America has made proper provision for the reimbursement to this state and its counties for the added costs in connection with the assumption of said jurisdiction, has issued his proper proclamation duly filed with the secretary of state declaring the said jurisdiction to be assumed and accepted.

S.D. Codified Laws Ann. Secs. 1-1-18, 1-1-21 (1985) (emphasis added) (1961 legislation). The general assumption of jurisdiction did not occur since the Governor of South Dakota never filed the required proclamation. A subsequent attempt in 1963 to assume complete civil and criminal jurisdiction without the federal reimbursement condition failed when the legislation was defeated in a referendum vote. See Act of Mar. 15, 1963, Ch. 467, 1963 S.D.Laws 522; S.D. Codified Laws Ann. Sec. 1-1-12 Commission Note (1985) (chapter 467 defeated in referendum vote by 3 to 1 margin).

The exception in the 1961 legislation purportedly allowed the state to exercise jurisdiction over highways in Indian country from 1961 forward. In 1964, however, the South Dakota Supreme Court invalidated the 1961 legislation. See In re Hankins, 80 S.D. 435, 125 N.W.2d 839 (1964). The court concluded the state's assumption of highway jurisdiction did not effectively remove the constitutional disclaimer because P.L. 280 did not permit a state to assume partial subject-matter jurisdiction. Id. at 442-43, 125 N.W.2d at 842-43. The 1961 legislation was never repealed but appears in the current official codification of the state laws. The state did not pursue highway enforcement efforts after the Hankins decision, and judicial decisions reflected the state's lack of jurisdiction over Indians on Indian land. See, e.g., State v. Molash, 86 S.D. 558, 199 N.W.2d 591 (1972); Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (1967).

In 1968 Congress amended P.L. 280 to require tribal consent prior to any assumptions of jurisdiction. The pertinent language of the 1968 amendment reads as follows:

The consent of the United States is hereby given to any State not having jurisdiction over [civil or criminal causes of action] in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over [civil or criminal causes of action] as may be determined by such State to the same extent that such State has jurisdiction over [other civil or criminal causes of action] * * *.

* * * *

SEC. 403(a) The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to [P.L. 280], as it was in effect prior to its repeal by subsection (b) of this section.

(b) Section 7 of [P.L. 280] is hereby repealed, but such repeal shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal.

Act of Apr. 11, 1968, Pub.L. 90-284, Title IV, Secs. 401-03, 82 Stat. 73, 78-79 (codified at 25 U.S.C. Secs. 1321(a), 1322(a), 1323 (1982)) (emphasis added). The tribal consent requirement did not apply to states that had assumed jurisdiction prior to the repeal of section 7. See Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 150, 104 S.Ct. 2267, 2275, 81 L.Ed.2d 113 (1984).

In 1979 the United States Supreme Court decided Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979). Yakima ruled that the Washington jurisdiction statute validly assumed partial jurisdiction under the pre-1968 version of P.L. 280. After Yakima, South Dakota began urging in state courts that it had validly assumed highway jurisdiction in the 1961 legislation. The 1961 legislation reappeared in the 1985 codification of state laws in response to Yakima. ⁶ The South Dakota Supreme Court in State v. Onihan, 427 N.W.2d 365 (S.D.1988) ruled that, in light of Yakima, Hankins was...