State of S.D. v. Bourland

• Decision Date: 21 November 1991
• Docket Number: Nos. 90-5486,90-5515,s. 90-5486
• Citation: 949 F.2d 984
• Parties: STATE OF SOUTH DAKOTA in its own behalf, and as parens patriae, Appellee, v. Gregg BOURLAND, personally and as Chairman of the Cheyenne River Sioux Tribe and Dennis Rousseau, personally and as Director of Cheyenne River Sioux Tribe Game, Fish and Parks, Appellants. STATE OF SOUTH DAKOTA in its own behalf, and as parens patriae, Appellant, v. Gregg BOURLAND, personally and as Chairman of the Cheyenne River Sioux Tribe and Dennis Rousseau, personally and as Director of Cheyenne River Sioux Tribe Game, Fish and Parks, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 984

949 F.2d 984

21 Fed.R.Serv.3d 1246

STATE OF SOUTH DAKOTA in its own behalf, and as parens

patriae, Appellee, v. Gregg BOURLAND, personally and as Chairman of the Cheyenne

River Sioux Tribe and Dennis Rousseau, personally

and as Director of Cheyenne River Sioux

Tribe Game, Fish and Parks,

Appellants.

STATE OF SOUTH DAKOTA in its own behalf, and as parens

patriae, Appellant, v. Gregg BOURLAND, personally and as Chairman of the Cheyenne

River Sioux Tribe and Dennis Rousseau, personally

and as Director of Cheyenne River Sioux

Tribe Game, Fish and Parks, Appellees.

Nos. 90-5486, 90-5515.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1991.

Decided Nov. 21, 1991.

Scott B. McElroy, Boulder, Colo., argued (Bruce R. Greene, Boulder, Colo., and Steven C. Emery, Eagle Butte, S.D., on brief), for appellants.

David C. Shilton, Dept. of Justice, Washington, D.C., argued (Richard B. Stewart, Edward J. Shawaker, William A. White and Steven K. Linscheid, on brief), for amicus curiae.

John P. Guhin, Pierre, S.D., argued (Mark Smith, on brief), for appellee.

Before BOWMAN, Circuit Judge, HEANEY and BRIGHT, Senior Circuit Judges.

BOWMAN, Circuit Judge.

This is an appeal from the decision of the District Court permanently enjoining the tribal defendants from regulating the hunting and fishing activities of nonmembers of the Cheyenne River Sioux Tribe ("Tribe") on certain lands within the Cheyenne River Reservation. We affirm in part, reverse in part, and remand in part. ¹

I.

The Great Sioux Reservation was established by the Treaty with the Sioux Indians, Apr. 29, 1868, 15 Stat. 635, 636 ("Fort Laramie Treaty"). It comprised virtually all of what is now South Dakota west of the Missouri River, as well as part of what is now North Dakota. The Treaty explicitly recognized a number of tribal powers, including the exclusive right to use reservation lands. Id. at 636. In 1889, pursuant to the Act of March 2, 1889, ch. 405, 25 Stat. 888, the Great Sioux Reservation was divided into six separate reservations, one of which was the Cheyenne River Indian Reservation ("Reservation"). The Reservation lies in north-central South Dakota, with the Missouri River serving as its eastern border.

The Great Sioux Reservation was established at a time when the policy of the United States government was to enter into treaties with Indian tribes, establishing areas of sovereignty where tribes were allowed to govern themselves and to exercise control over "matters affecting tribal self-government." Felix S. Cohen, Handbook of Federal Indian Law 70 (Rennard Strickland, et al., eds., Michie 1982) (1942) ("Handbook "). ² Land designated for the Reservation was held in trust by the United States for the benefit of the Tribe. In the late 1800s and early 1900s, however, the United States altered its policy regarding aboriginal tribes. The goal of the government became geared less towards self-sufficiency and self-rule for Indians; assimilation of Indians into the general population was the explicit goal. This was achieved by allowing non-Indians to acquire reservation land previously held in trust for Indians. "[A]n avowed purpose of the allotment policy was the ultimate destruction of tribal government." Montana v. United States, 450 U.S. 544, 559 n. 9, 101 S.Ct. 1245, 1255 n. 9, 67 L.Ed.2d 493 (1981). The policy was carried out by, inter alia, the General Allotment Act of 1887 ("Dawes Act"), 24 Stat. 388 and the Act of May 29, 1908, ch. 218, 35 Stat. 460, the latter of which allowed Reservation "surplus" lands to be sold to nonmembers. ³ This policy of assimilation led to a vast reduction in the amount of reservation land held in trust by the United States for tribes or individual Indians. ⁴ On the Cheyenne River Reservation, for example, land held in trust for Indians amounts to slightly less than half of the Reservation's total acreage. ⁵

Recognizing that the assimilation policy was not working as intended, the United States changed course in the 1930s to encourage tribal self-determination. In 1934 Congress passed the Indian Reorganization Act, codified as amended at 25 U.S.C. § 461 et seq. (1988) ("IRA"), which allowed officially-recognized tribes to form their own constitutions and governments. ⁶ Pursuant to the IRA, the Cheyenne River Sioux Tribe enacted a tribal constitution and passed by-laws regulating hunting and fishing on the Reservation. South Dakota v. Ducheneaux, Civ. No. 88-3049, Mem.Op. at 9-10 (D.S.D. August 21, 1990) ("August Memorandum Opinion"), reprinted in Appellants' Addendum at 9-10. Congress later passed the Act of Aug. 15, 1953, Pub.L. No. 280, 67 Stat. 588 (codified in part at 18 U.S.C. § 1162 (1988) and 28 U.S.C. § 1360 (1988)) ("Public Law 280"), which was designed in part to transfer to certain state governments the power to regulate certain enumerated activities on Indian reservations. Included in Public Law 280 was a proviso recognizing that the law "shall [not] deprive any ... Indian tribe ... of any right ... afforded under Federal treaty ... with respect to hunting, trapping, or fishing or the control, licensing or regulation thereof." 18 U.S.C. § 1162(b) (1988). ⁷

In 1944, Congress passed the Flood Control Act, ch. 665, 58 Stat. 887 (1944) ("Flood Control Act"). This statute was enacted to allow the government to enter into negotiations with landowners along various stretches of the Missouri River to purchase tracts of riverfront land. The land was needed so that the Army Corps of Engineers could construct a series of dams along the River to prevent downstream flooding, to help with irrigation, and for other purposes. Much of the land sought by the Corps was owned by or for Indians or Indian tribes. In 1950, Congress passed Pub.L. No. 870, 64 Stat. 1093 (1950) ("Public Law 870"), authorizing the Army and the Department of Interior to negotiate a contract with the Cheyenne River Tribe and the Standing Rock Sioux Tribe for land needed for the Oahe Dam and Reservoir. In the early 1950s, Congress authorized the purchase of land from six tribes in South Dakota pursuant to the Flood Control Act. ⁸ By the Act of Sept. 3, 1954, Pub.L. No. 776, 68 Stat. 1191 ("Cheyenne River Act"), Congress appropriated $10,644,014 for payment to the Tribe in exchange for rights to approximately 105,000 acres ⁹ of tribal and trust land abutting (and apparently partially underlying) the Missouri River. ¹⁰ Included in this appropriation were monies for the loss of grazing revenue, loss of wildlife, and relocation costs. The Act, however, did not eliminate all tribal interests in the taken land. It explicitly noted that the Tribe and its members retained the right to hunt and fish on the land, and the right to lease the unflooded portion of the taken land. It also granted to the Tribe leasing rights to the taken area that previously had been non-Indian fee land. Joint Appendix, vol. II at 433-39.

For a period of time, the Tribe and the State of South Dakota were able to negotiate successfully an agreement resolving the issue of regulatory authority over hunting and fishing activities on Reservation lands. In 1988, however, after negotiations for the upcoming deer hunting season broke off, the Tribe announced that it would not honor state permits issued to people wishing to hunt on the Reservation. The State filed suit, asking the District Court to enjoin the tribal defendants from regulating the hunting and fishing activities of non-Indians on non-Indian fee land and the taken land in the Reservation. The court determined that the Tribe possessed no regulatory authority over nonmembers hunting and fishing on nonmember fee land and the taken area, and permanently enjoined the defendants from attempting to exercise such authority.

On appeal, the tribal defendants raise four issues: 1) the District Court erred in not requiring the State to join the Tribe as an indispensable party; 2) the District Court erred in not requiring the State to join the United States as an indispensable party; 3) the District Court erred in ruling that the tribal defendants have no regulatory authority over nonmember Indians (as distinct from non-Indians) on the land in question because the issue was neither pled nor tried; and 4) the District Court erred in determining that the defendants possess no authority to regulate non-Indian hunting and fishing on the taken area. ¹¹ On cross-appeal, the State urges us either to declare as dicta language in the District Court opinion concerning the reach of the Lacey Act, codified in relevant part at 16 U.S.C. §§ 3371-78 (1988), and the federal trespass statute, 18 U.S.C. § 1165 (1988), or to reverse the District Court with respect to its interpretation of these statutes.

II.

The tribal defendants claim that the District Court erred in proceeding with the case because the United States and the Tribe are indispensable parties, and that the case should not have proceeded in their absence. We review trial court determinations of indispensability under Fed.R.Civ.P. 19 for abuse of discretion. See Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 534 (8th Cir.1975), modified on other grounds, Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir.1976); accord Sindia Expedition v. Wrecked and Abandoned Vessel, 895 F.2d 116, 121 (3rd Cir.1990); Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 635 (1st Cir.1989); McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1401 (10th Cir.1987); Northern Alaska Envtl. Ctr. v. Hodel, 803 F.2d 466, 468 (9th Cir.1986); Pulitzer-Polster v. Pulitzer, 784 F.2d 1305, 1309 (5th Cir.1986); but see Local 670 v. International Union, United Rubber, Cork, Linoleum and Plastic Workers, 822 F.2d 613, 619 (6th Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 731, 98 L.Ed.2d 679 (1988) (holding that determination of indispensability is a legal conclusion subject to de novo review).

We hold that the District Court did not abuse its discretion in...