Stankey v. Waddell

• Decision Date: 22 June 1977
• Docket Number: No. 11610,11610
• Citation: 256 N.W.2d 117
• Parties: Sophie STANKEY, Plaintiff and Respondent, v. Ronald WADDELL, Chairman, Dewey County Board of Commissioners and Paul Hinzman, Louis Merkel, Frank Maciejewski, Robert Farlee, Board of County Commissioners of Dewey County, a Political Subdivision of the State of South Dakota, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 117

256 N.W.2d 117

Sophie STANKEY, Plaintiff and Respondent, v. Ronald WADDELL, Chairman, Dewey County Board of Commissioners and Paul Hinzman, Louis Merkel, Frank Maciejewski, Robert Farlee, Board of County Commissioners of Dewey County, a Political Subdivision of the State of South Dakota, Defendants and Appellants.

No. 11610.

Supreme Court of South Dakota.

Argued Oct. 13, 1976.

Decided June 22, 1977.

Terry L. Pechota, Arthur F. Bunce, Michael Carter, N. N. Singh and Anita Remerowski, South Dakota Legal Services, Mission, for plaintiff and respondent.

Tom D. Tobin, Winner, Andrew Aberle, Dewey County State's Atty., Timber Lake, William J. Janklow, Atty. Gen., Pierre, for defendants and appellants.

Marvin J. Sonosky, Standing Rock Sioux Tribe, Arthur Lazarus, Jr., Cheyenne River Sioux Tribe, Washington, D. C., for amicus curiae.

DUNN, Chief Justice.

In this action, the state appeals an Eighth Judicial Circuit Court ruling which granted plaintiff abatement of her 1971 personal property taxes. Plaintiff in December 1973, filed an application for abatement with defendant, the Dewey County Board of Commissioners. She claimed that the property was exempt from taxation because she was an enrolled member of the Cheyenne River Sioux Tribe ¹ and because the property was within the boundaries of the Cheyenne River Indian Reservation. The application was denied. The board determined that the property was located in that portion of Dewey County lying within the original boundaries of the Cheyenne River Reservation which had been disestablished by the Act of May 29, 1908, 35 Stat. 460 ² and was not exempt from taxation. Plaintiff appealed to the circuit court which granted judgment on the pleadings in favor of plaintiff, relying on the decision of the United States Circuit Court for the Eighth Circuit in United States ex rel. Condon v. Erickson, 1973, 8 Cir., 478 F.2d 684. We reverse.

The facts were stipulated by the parties. The location of the personal property was patented by the United States to Edward Anderson on October 10, 1917, recorded January 21, 1918, and ever since has been and now is in nontrust status. Substantially the same personal property was taxed to Bernel Stankey, a non-Indian and plaintiff, his wife, prior to his death in 1968. The 1971 personal property tax assessment form was made out to and assessed only in plaintiff's name.

The boundaries of the Cheyenne River Reservation were originally established by the Act of March 2, 1889, 25 Stat. 888. ³ The issue presented in this case is whether the 1908 Act, which authorized the sale and disposition of a portion of the reservation, disestablished part of the reservation or merely opened a part of it for homestead entry. If the Act disestablished part of the reservation and altered the original boundaries, South Dakota courts have jurisdiction over the disestablished portion where there is no Indian allotment (i. e. checkerboard jurisdiction). If the Act merely opened lands on the reservation for settlement and the original boundaries remain, all of the lands within the original boundaries are "Indian country" and are subject to the jurisdiction of the United States Government.18 U.S.C. § 1151(a). Absent disestablishment, plaintiff would be exempt from personal property taxes for her property on the reservation. Bryan v In United States v. La Plant, 1911, D.C.S.D., 200 F. 92, the court held that the use of the term "diminished" reservations in the 1908 Act necessarily indicated a congressional intent to extinguish the Indians' title to the lands at the time of the Act's passage. The La Plant decision was followed by this court in State v. Sauter, 1925, 48 S.D. 409, 205 N.W. 25. See also: Lafferty v. State for Jameson, 1963, 80 S.D. 411, 125 N.W.2d 171; State v. Barnes, 1965, 81 S.D. 511, 137 N.W.2d 683. However, in United States ex rel. Condon v. Erickson, 1972, D.C.S.D., 344 F.Supp. 777, the federal court abandoned its earlier decision and ruled that absent an express provision in the Act which restored the lands to the public domain, it could not impute that purpose. ⁴ The court relied on Seymour v. Superintendent, 1962, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346, and City of New Town, North Dakota v. United States, 1972, 8 Cir., 454 F.2d 121, which held that opening a reservation to settlement is not inconsistent with continued reservation existence. See also: Mattz v. Arnett, 1973, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92; Russ v. Wilkins, 1976, D.C.N.D.Cal., 410 F.Supp. 579. This decision was affirmed in United States ex rel. Condon v. Erickson, 1973, 8 Cir., 478 F.2d 684. That court acknowledged that it was a close case, but concluded that a holding favoring federal jurisdiction was required "unless Congress has 'expressly or by clear implication' diminished the boundaries." 478 F.2d at 689.

Itasca County, Minnesota, 1976, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710; Mescalero Apache Tribe v. Jones, 1973, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114.

In the case at bar, plaintiff maintains that we are bound to follow the Condon decision because it has not been expressly overruled by the Eighth Circuit. The state contends that Condon is no longer a correct interpretation because the court in that case did not look at the legislative history behind the Act. It maintains that the United States Supreme Court in DeCoteau v. District County Court for Tenth Judicial Circuit, 1975, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300, removed the barrier to such inquiry, and that since DeCoteau the Eighth Circuit has expressed some doubts about the continued validity of Condon.

While the court in Condon did state it considered the legislative history of the 1908 Act, but rejected it after finding it inconsistent, ⁵ the court further stated it could not determine the intent "by application of the traditional methods of statutory construction." United States ex rel. Condon v. Erickson, supra, at 688. Rather than speculate as to whether the Eighth Circuit now may favor use of a different method of inquiry into the legislative history, we will attempt to determine the congressional intent within the guidelines of several recent United States Supreme Court decisions.

At the time of the 1908 Act, Congress had plenary power to abrogate the provisions of the earlier Act setting the boundaries of the Cheyenne River Reservation, Lone Wolf v. Hitchock, 1903, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299; Choate v. Trapp, 1912, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; however, "when 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, 1909, 215 U.S. 278, 285, 30 S.Ct. 93, 95, 54 L.Ed.

195; City of New Town, North Dakota v. United States, supra. We must not "lightly conclude than an Indian reservation has been terminated." DeCoteau v. District County Court for Tenth Judicial Circuit, supra, 420 U.S. at 444, 95 S.Ct. at 1092, 43 L.Ed.2d at 314; Menominee Tribe of Indians v. United States, 1968, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697. In interpreting the 1908 Act, we cannot conclude termination was intended without looking at the Act's terms, Ash Sheep Co. v. United States, 1920, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507; the congressional intent "must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history." Mattz v. Arnett, supra, 412 U.S. at 505, 93 S.Ct. at 2258, 37 L.Ed.2d at 106; United States v. Southern Pacific Transp. Co., 1976, 9 Cir., 543 F.2d 676; United States v. Long Elk, 1976, D.C.S.D., 410 F.Supp. 1174. Legislative ambiguities are to be resolved in favor of the Indians. Cohen, Handbook of Federal Indian Law, 1942, 37; Bryan v. Itasca County, Minnesota, supra; DeCoteau v. District County Court for Tenth Judicial Circuit, supra; Antonine v. Washington, 1975, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129; Carpenter v. Shaw, 1930, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478; Choate v. Trapp, supra; United States v. Celestine, supra; Worcester v. Georgia, 1832, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483.

THE ACT

Looking at the terms of the Act, we find that the Secretary of the Interior was authorized to sell and dispose of the portion of the Cheyenne River Reservation in question. A method of appraising the lands to be sold was outlined in the Act, and the proceeds from the sales were to be held by the United States Treasury in trust for the credit of the Indians of the reservations. This is unlike the provision of the Act in DeCoteau wherein the Sisseton and Wahpeton Bands sold their unallotted lands directly to the United States Government for a sum certain. However, "the changed method of payment is not conclusive with respect to congressional intent." Rosebud Sioux Tribe v. Kneip, 1977, --- U.S. ---, 97 S.Ct. 1361, 1363, 51 L.Ed.2d 660.

Opening a reservation to settlement is not inconsistent with continued reservation existence, as the United States District Court noted in Condon. The state in this case argues that references to a "diminished" reservation and to timber rights upon land "as long as the lands remain part of the public domain." Act of May 29, 1908, 35 Stat. 460, Secs. 2, 9, signify an intent to terminate reservation status. The United States Court of Appeals for the Eighth Circuit rejected this argument in Condon. The court held that the reference to the "public domain" may have indicated restoration to the public domain for a limited period until lands were sold for homesteading, with the remaining lands unaffected (as presumably would be the reservation boundaries). Because it found these alternative interpretations feasible, the court would not find a clear intent to disestablish.

Since Condon, the Eighth Circuit has interpreted the phrase "diminished reservation" in several Acts to mean that the reservations were "diminished" in a geographical sense. Rosebud...