South Dakota v. Bourland

• Citation: 113 S.Ct. 2309,124 L.Ed.2d 606,508 U.S. 679
• Decision Date: 14 June 1993
• Docket Number: No. 91-2051,91-2051
• Parties: SOUTH DAKOTA, Petitioner, v. Gregg BOURLAND, etc., et al
• Court: U.S. Supreme Court

508 U.S. 679

113 S.Ct. 2309

124 L.Ed.2d 606

SOUTH DAKOTA, Petitioner,

v Gregg BOURLAND, etc., et al.

No. 91-2051.

Argued March 2, 1993.

Decided June 14, 1993.

Syllabus ^*

In 1868, the Fort Laramie Treaty established the Great Sioux Reservation and provided that it be held for the "absolute and undisturbed use and occupation" of Sioux Tribes. The Flood Control Act of 1944 authorized the establishment of a comprehensive flood control plan along the eastern border of the Cheyenne River Reservation, which is part of what was once the Great Sioux Reservation, and mandated that all water project lands be open for the general public's use and recreational enjoyment. Subsequently, in the Cheyenne River Act, the Cheyenne River Sioux Tribe conveyed all interests in 104,420 acres of former trust lands to the United States for the Oahe Dam and Reservoir Project. The United States also acquired an additional 18,000 acres of reservation land previously owned in fee by non-Indians pursuant to the Flood Control Act. Among the rights the Cheyenne River Act reserved to the Tribe or tribal members was a "right of free access [to the taken lands] including the right to hunt and fish, subject . . . to regulations governing the corresponding use by other [United States] citizens," § 10. Until 1988, the Tribe enforced its game and fish regulations against all violators, while petitioner South Dakota limited its enforcement to non-Indians. However, when the Tribe announced that it would no longer recognize state hunting licenses, the State filed this action against tribal officials, seeking to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the reservation and, in the alternative, a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe's authority by withdrawing the lands from the reservation. The District Court ruled, inter alia, that § 10 of the Cheyenne River Act clearly abrogated the Tribe's right to exclusive use and possession of the former trust lands and that Congress had not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers on the taken lands. It therefore permanently enjoined the Tribe from exerting such authority. The Court of Appeals affirmed in part, reversed in part, and remanded. It ruled that the Tribe had authority to regulate non-Indian hunting and fishing on the 104,420 acres because the Cheyenne River Act did not clearly reveal Congress' intent to divest the Tribe of its treaty right to do so. As for the 18,000 acres of former fee lands, the court held that Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493, and Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343, controlled, and therefore that the Tribe's regulatory authority was divested unless one of the Montana exceptions was met.

Held: Congress, in the Flood Control and Cheyenne River Acts, abrogated the Tribe's rights under the Fort Laramie Treaty to regulate non-Indian hunting and fishing on lands taken by the United States for construction of the Oahe Dam and Reservoir. Pp. ____.

(a) Congress has the power to abrogate Indians' treaty rights, provided that its intent is clearly expressed. The Tribe's original treaty right to exclude non-Indians from reservation lands (implicit in its right of "absolute and undisturbed use and occupation"), and its incidental right to regulate non-Indian use of these lands were eliminated when Congress, pursuant to the Cheyenne River and Flood Control Acts, took the lands and opened them for the use of the general public. See Montana v. United States, supra; Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, supra. Section 4 of the Flood Control Act opened the water project lands for "recreational purposes," which includes hunting and fishing. The Cheyenne River Act declared that the sum paid by the Government to the Tribe for the 104,420 acres "shall be in final and complete settlement of all [of the Tribe's] claims, rights, and demands." Had Congress intended to grant the Tribe the right to regulate non-Indian hunting and fishing, it would have done so by an explicit statutory command, as it did with other rights in § 10 of the Cheyenne River Act. And since Congress gave the Army Corps of Engineers regulatory control over the area, it is irrelevant whether respondents claim the right to exclude nonmembers or only the right to prevent nonmembers from hunting or fishing without tribal licenses. Montana cannot be distinguished from this case on the ground that the purpose of the transfers in the two cases differ, because it is a transfer's effect on pre-existing tribal rights, not congressional purpose, that is the relevant factor. Moreover, Congress' explicit reservation of certain rights in the taken area does not operate as an implicit reservation of all former rights. See United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767. Pp. ____.

(b) The alternative arguments—that the money appropriated in the Cheyenne River Act did not include compensation for the Tribe's loss of licensing revenue, that general principles of "inherent sovereignty" enable the Tribe to regulate non-Indian hunting and fishing in the area, and that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing—do not undercut this statutory analysis. Pp. ____.

949 F.2d 984 (CA8 1991), reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which SOUTER, J., joined.

Mark Barnett, Pierre, SD, for petitioner.

Brian S. Koukoutchos, Lexington, MA, for respondents.

James A. Feldman, Washington, DC, for the U.S., as amicus curiae by special leave of the Court.

Justice THOMAS delivered the opinion of the Court.

In this case we consider whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on lands and overlying waters located within the Tribe's reservation but acquired by the United States for the operation of the Oahe Dam and Reservoir.

I

In 1868, the Fort Laramie Treaty, 15 Stat. 635, established the Great Sioux Reservation, which comprised most of what is now western South Dakota and part of North Dakota. Article II of the treaty provided that the reservation was to be held for the "absolute and undisturbed use and occupation" of Sioux Tribes and that no non-Indians (except authorized government agents) would "ever be permitted to pass over, settle upon, or reside in" the Great Sioux Reservation. Id., at 636. The Act of Mar. 2, 1889, ch. 405, 25 Stat. 888, removed a substantial amount of land from the reservation and divided the remaining territory into several reservations, including the Cheyenne River Reservation, which is located in north-central South Dakota. The 1889 Act preserved those rights of the Sioux under the Fort Laramie Treaty that were "not in conflict" with the newly enacted statute. § 19, 25 Stat. 896. The land designated for the Cheyenne River Reservation was held in trust by the United States for the benefit of the Tribe. 949 F.2d 984, 987 (CA8 1991).

The 1889 Act also authorized the President to allot parcels of land within the reservation to individual Indians. § 8, 25 Stat. 890. Some of these allotted lands were subsequently acquired by persons not members of the Cheyenne River Sioux Tribe. Non-Indians also acquired fee title to some of the unallotted and "surplus" lands on the reservation pursuant to the General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Act of May 29, 1908, ch. 218, 35 Stat. 460. The General Allotment Act allowed surplus lands to be sold to non-Indians; the Act of 1908 authorized the Secretary of the Interior to open for non-Indian settlement more than 1.6 million acres previously held in trust by the United States. These enactments vastly reduced the amount of reservation land held in trust by the United States for the Tribe and its members. Today trust lands comprise less than 50% of the reservation. App. 64.

After severe floods devastated the lower Missouri River basin in 1943 and 1944, Congress passed the Flood Control Act of 1944, ch. 665, 58 Stat. 887. This Act authorized the establishment of a comprehensive flood control plan along the Missouri River, which serves as the eastern border of the Cheyenne River Reservation. The Act also directed the Army Chief of Engineers to "construct, maintain, and operate public park and recreational facilities in reservoir areas," and provided that the "reservoirs shall be open to public use generally," subject to "such rules and regulations as the Secretary of War may deem necessary." § 4, 58 Stat. 889-890. Seven subsequent Acts of Congress authorized limited takings of Indian lands for hydroelectric and flood control dams on the Missouri River in both North and South Dakota. See Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 813, n. 1 (CA8 1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 707, 79 L.Ed.2d 171 (1984). One of the largest of these takings involved the Oahe Dam and Reservoir Project, for which Congress required the Cheyenne River Sioux Tribe to relinquish 104,420 acres of its trust lands, including roughly 2,000 acres of land underlying the Missouri River.¹ The Tribe's agreement to "convey to the United States all tribal, allotted, assigned, and inherited lands or interests" needed for the project is memorialized in the Cheyenne River Act of Sept. 3, 1954, 68 Stat. 1191.² Pursuant to the Flood Control Act, the United States also acquired for the Oahe Dam and Reservoir Project an additional 18,000 acres that were owned in fee by non-Indians.³

Although the Tribe conveyed all interests in the 104,420 acres of former trust lands to the United States,⁴ the Cheyenne River Act reserved to the Tribe or tribal...