Sac and Fox Tribe of Mississippi in Iowa v. Licklider
| Citation | 576 F.2d 145 |
| Decision Date | 07 June 1978 |
| Docket Number | Nos. 77-1534,77-1595,s. 77-1534 |
| Parties | SAC AND FOX TRIBE OF the MISSISSIPPI IN IOWA, Appellant, and United States v. Les LICKLIDER, Chairman, State Conservation Commission, Thomas A. Bates, Jim D. Bixter, John G. Link, Carolyn T. Lumbard, Herbert T. Reed, and John Thompson, members of the State Conservation Commission, Fred A. Priewart, Executive Director, State Conservation Commission, and Kenneth Kakac, Superintendent of Law Enforcement, Hunting and Fishing, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
John Wabaunsee, Native American Rights Fund, Boulder, Colo. (argued) and Merle Royce, Marshalltown, Iowa, on brief, for Sac and Fox Tribe.
John J. Zimmerman (argued), Edmund B. Clark, Attys., Land and Natural Resources Div., App. Section, Dept. of Justice, Washington, D. C., and James W. Moorman, Asst. Atty. Gen., Washington, D. C., on brief, for United States.
James C. Davis, Asst. Atty. Gen., Des Moines, Iowa (argued) and Richard C. Turner, Atty. Gen., Des Moines, Iowa, on brief, for appellees.
Before GIBSON, Chief Judge, STEPHENSON, Circuit Judge, and BECKER, * Senior District Judge.
This case presents the question of whether the state of Iowa has jurisdiction to regulate hunting, fishing and trapping by members of the Sac and Fox Tribe of the Mississippi in Iowa (Tribe) on a tract of land in Tama County, Iowa, occupied by the Tribe.
The Tribe presently resides on a 3,000 acre tract of land in Tama County, Iowa, which is held in trust by the United States for the use and benefit of the Tribe. In response to recent arrests of Tribe members by Iowa officials for violation of Iowa fish and game laws, the Tribe brought this action below. The United States brought a similar action and the two cases were consolidated. In essence, the plaintiffs sought declaratory and injunctive relief to the effect that Iowa has no jurisdiction to regulate hunting, fishing and trapping by Tribe members on the tract of land occupied by the Tribe. The cases were considered by the district court 1 on agreed-to stipulations of fact with the single exception as to whether some Sac and Fox Indians remained in Iowa between the years 1845 and 1856. The district court, on May 6, 1977, concluded that Iowa had jurisdiction to regulate hunting, fishing and trapping on the Tama tract and accordingly dismissed the consolidated actions. These appeals by the Tribe and the United States followed.
We begin with the recognized principle that: "Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored." United States v. Erickson, 478 F.2d 684, 686 (8th Cir. 1973), quoting from F. Cohen, Handbook of Federal Indian Law, XIII (Introduction by N. Margold) (1942). Prior to the year 1700 the Sac and Fox Tribes were distinct separate tribes residing in what is now central Wisconsin. As a result of war between the Fox and the French in the early 18th Century, the Fox were reduced in number and formed a loose confederation with the Sac. By 1800 the Sac and Fox had established villages along the Mississippi River in what is now Iowa and Illinois. Hunting, fishing and trapping took them as far west as central Iowa.
The Sac were first recognized by the United States in the Treaty of Jan. 9, 1789, 7 Stat. 28, 31 (1846), when the United States received the Sac into its friendship and protection. The Sac and Fox were jointly recognized in the Treaty of Nov. 3, 1804, 7 Stat. 84 (1846), in which much of what later became Illinois, Wisconsin and Missouri was ceded to the United States in exchange for certain payments and guarantees. In a series of treaties from 1804 through 1842, the Sac and Fox ceded other portions of their lands to the United States in exchange for payments, annuities and services.
In 1842 the Sac and Fox Tribe ceded all its land west of the Mississippi River (which includes the present Tama tract in Iowa) to the United States and agreed to move to a reservation located in what is now the state of Kansas. The move was to be accomplished within three years after the treaty date. 2 Many members of the Fox Tribe and some members of the Sac Tribe who agreed to move to the reservation in Kansas pursuant to the 1842 treaty became dissatisfied with the Kansas reservation and returned to Iowa. 3 In 1856 the Iowa legislature consented to the continued residence of the Sac and Fox then in Iowa and urged the United States to pay these Indians their proportionate annuities under the various treaties with the Sac and Fox Tribe. 1854-1857 Iowa Laws ch. 30 (5th Extra Gen. Assembly). The Tribe purchased a small tract of land in 1857 and title was taken by the governor of Iowa in trust for the Indians.
In 1865 the federal government sent an Indian agent to Iowa to supervise the Tribe. In 1867 Congress approved the payment of the 1842 treaty annuities to the Tribe in Iowa "so long as they are peaceful and have the assent of the government of Iowa to reside in that State." Act of Mar. 2, 1867, ch. 173, 14 Stat. 492, 507 (1868). Additionally in 1867 another treaty was negotiated with the Sac and Fox Tribe which required each absent member to move onto the reservation in the Indian Territory or lose his right to funds arising under all treaties with the Sac and Fox. The Tribe in Iowa was specifically exempted from this requirement. Treaty of Oct. 14, 1868, 15 Stat. 495, 504 (1869).
Between 1856 and 1896, 4 the Tribe acquired more land in Tama County with funds generated through the sale of pelts and horses, charitable contributions, and treaty annuities. By 1896, the governor of Iowa held the title to 2,720 acres of land in trust for the benefit of the Tribe. The Indian agent held the title to an additional 280 acres as trustee for the benefit of the Tribe.
In 1896 Iowa tendered exclusive jurisdiction over the Tribe and their lands held in trust for them to the United States, with the following exception:
Nothing contained in this act shall be so construed as to prevent on any of the lands referred to in this act the service of any judicial process issued by or returnable to any court of this state or judge thereof, or to prevent such courts from exercising jurisdiction of crimes against the laws of Iowa committed thereon either by said Indians or others, or of such crimes committed by said Indians in any part of this state * * *.
1894-1897 Iowa Laws ch. 110 (26th Extra Gen. Assembly). The United States accepted this tender, stating in part:
That the United States hereby accepts and assumes jurisdiction over the Sac and Fox Indians of Tama County, in the State of Iowa, and of their lands in said State, as tendered to the United States by the act of the legislature of said State passed on the sixteenth day of January, eighteen hundred and ninety-six, subject to the limitations therein contained * * *.
Act of June 10, 1896, ch. 398, 29 Stat. 321, 331 (1897).
In 1937 the Tribe adopted a constitution and bylaws pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq. In 1948, Congress conferred concurrent criminal jurisdiction on the state over offenses committed "by or against Indians on the Sac and Fox Indian Reservation" located in Iowa. Act of June 30, 1948, ch. 759, 62 Stat. 1161. 5 Finally in 1967, the Iowa Legislature acted to assume civil jurisdiction over actions involving Indians arising "within the Sac and Fox Indian settlement in Tama county" to the extent that such jurisdiction was available under the federal Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, 589. See Iowa Code § 1.12.
The starting point for our analysis is the question of whether the land in Tama County presently occupied by the Tribe is a reservation. Both the Tribe and the United States contend it is, while the state of Iowa strenuously argues to the contrary.
As previously stated, in the Treaty of Oct. 11, 1842, the Sac and Fox Tribe ceded all its land west of the Mississippi River (which includes the Tama tract) to the United States and agreed to move to a reservation located in what is presently the state of Kansas. In this regard the language of the treaty is unequivocal:
The confederated tribes of Sacs and Foxes cede to the United States, forever, all the lands west of the Mississippi river, to which they have any claim or title, or in which they have any interest whatever * * *.
Treaty of Oct. 11, 1842, 7 Stat. 596 (1846). It is clear from the treaty language that at least by 1845, when the Sac and Fox were required to be moved from the ceded land, no reservation existed in Iowa.
It is equally clear, however, that as early as 1865 the United States began to treat the Tama tract occupied by the Tribe as a de facto reservation. Cf. Mattz v. Arnett, 412 U.S. 481, 490, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). For example, in 1865 the federal government sent a special Indian agent to Tama and established a special agency for the Tribe, which continues to the present date. In the Act of Mar. 2, 1867, the United States approved the payment of the 1842 treaty annuities to the Tribe in Iowa. Furthermore, in the Treaty of Oct. 4, 1868, the tribal members living in Iowa were explicitly excepted from the requirement of rejoining the full Sac and Fox Tribe. From at least 1874, the Bureau of Indian Affairs expended money for the education of members of the Tribe, including the construction of a boarding school in Toledo, Iowa. These early actions by the federal government demonstrate that the United States recognized the Tribe in Iowa and dealt with them comparably to the Sac and Fox located on the Kansas reservation.
Any doubt was eliminated by the federal government in 1896, when the United States accepted and assumed "jurisdiction over the Sac and Fox Indians of Tama County" and their land. Act of June 10, 1896, ch. 398, 29 Stat. 321, 331 (1897). As one court stated in 1901...
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