State v. Greger

• Decision Date: 19 February 1997
• Docket Number: No. 19087,19087
• Citation: 1997 SD 14,559 N.W.2d 854
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Fred GREGER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 854

559 N.W.2d 854

1997 SD 14

STATE of South Dakota, Plaintiff and Appellee, v. Fred GREGER, Defendant and Appellant.

No. 19087 Supreme Court of South Dakota.

Argued Oct. 24, 1996.

Decided Feb. 19, 1997.

Mark W. Barnett, Atty. Gen., John P. Guhin, Roxanne Giedd, Sherri Sundem Wald, Asst. Attys. Gen., Pierre, for plaintiff and appellee.

Thomas J. Deadrick, Platte, for defendant and appellant.

Timothy R. Whalen, Charles Mix County State's Atty., Lake Andes, Tom D. Tobin of Tobin Law Offices, Winner, for amicus curie Charles Mix County.

KONENKAMP, Justice.

Preface

¶1 In an Agreement with the United States dated December 31, 1892, the Yankton Sioux Tribe "ceded, sold, relinquished and conveyed" all its unallotted reservation land for a "sum certain" of $600,000. Under firmly established doctrine, these words of absolute conveyance create a "nearly insurmountable presumption" that the reservation was diminished. Nevertheless, will the original boundaries remain intact because the Agreement further stated "all provisions of the [earlier treaty establishing the reservation] shall be in full force and effect, the same as though this Agreement had not been made...."? We conclude that giving this excerpt unqualified primacy would make the remainder of the Agreement meaningless, but interpreted in context with the whole document, relevant contemporary circumstances, and congressional purpose, diminishment was plainly intended.

Historical Overview

¶2 Beginning in the late eighteenth and continuing through the mid-nineteenth century, the United States endeavored to exchange Indian lands in the east for regions further west. This "Indian removal" policy contemplated forging permanent tribal "homelands" in the western expanse. Various treaties created immense reservations designed to allow traditional ways of life to continue. Yet as immigration increased and pioneers advanced ever westward, settlers, railroaders, miners, and developers brought increasing pressure to further contain Indian tribes, calling for reservations to be opened for settlement and inevitably extinguished. Reformers hoping to improve the welfare of Indian people also sought to resolve the "Indian problem" through a plan of assimilation, encouraging Native Americans to become farmers and ranchers alongside homesteaders. Congress supervened with the Dawes Severalty Act (or General Allotment Act) of 1887, followed by a series of surplus land acts. With the allotment system, the homesteading ideal would be applied to "civilize" Indian people by forcing them onto individual plots cut out of reservations, while freeing unassigned lands for non-Indian settlement. Eventually, the allotment system was considered a failure. In 1934, the Indian Reorganization Act banned further allotments and restored remaining surplus lands to the tribes at the discretion of the Secretary of the Interior. Yet, this abandoned policy left perplexing jurisdictional problems, as Justice Thurgood Marshall chronicled in Solem v. Bartlett, 465 U.S. 463, 467-69, 104 S.Ct. 1161, 1164-65, 79 L.Ed.2d 443, 448-49 (1984)(footnotes and internal citations omitted):

The modern legacy of the surplus land Acts has been a spate of jurisdictional disputes between state and federal officials as to which sovereign has authority over lands that were opened by the Acts and have since passed out of Indian ownership. As a doctrinal matter, the States have jurisdiction over unallotted opened lands if the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries. On the other hand, federal, state, and tribal authorities share jurisdiction over these lands if the relevant surplus land Act did not diminish the existing Indian reservation because the entire opened area is Indian country under 18 U.S.C. § 1151(a)(1982 ed.).

Unfortunately, the surplus land Acts themselves seldom detail whether opened lands retained reservation status or were divested of all Indian interests. When the surplus land Acts were passed, the distinction seemed unimportant. The notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar at the turn of the century. Indian lands were judicially defined to include only those lands in which the Indians held some form of property interest: trust lands, individual allotments, and, to a more limited degree, opened lands that had not yet been claimed by non-Indians. Only in 1948 did Congress uncouple reservation status from Indian ownership, and statutorily define Indian country to include lands held in fee by non-Indians within reservation boundaries. See Act of June 25, 1948, ch. 645, 62 Stat. 757 (codified at 18 U.S.C. § 1151 (1982 ed.)).

Another reason why Congress did not concern itself with the effect of surplus land Acts on reservation boundaries was the turn-of-the-century assumption that Indian reservations were a thing of the past. Consistent with prevailing wisdom, Members of Congress voting on the surplus land Acts believed to a man that within a short time--within a generation at most--the Indian tribes would enter traditional American society and the reservation system would cease to exist. Given this expectation, Congress naturally failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation.

Although the Congresses that passed the surplus land Acts anticipated the imminent demise of the reservation and, in fact, passed the Acts partially to facilitate the process, we have never been willing to extrapolate from this expectation a specific congressional purpose of diminishing reservations with the passage of every surplus land Act. Rather, it is settled law that some surplus land Acts diminished reservations ... and other surplus land Acts did not.... The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage.

The Yankton Reservation

¶3 The 1858 Yankton Treaty of Cession created a 430,495-acre reservation along the eastern bank of the Missouri River for the Yankton Tribe. 11 Stat 743. Beginning in 1891, tracts within the reservation were allotted to individual Yankton Indians, leaving approximately 168,000 acres of unallotted land. The next year, in response to communications from the Tribe to the Secretary of the Interior, the United States appointed the Yankton Indian Commission to negotiate for the sale of the surplus lands. A specific enactment was passed "to enable the Secretary of the Interior in his discretion to negotiate with any Indians for the surrender of portions of their respective reservations...." 27 Stat 120, 136.

¶4 In their first meeting with the Commission, tribal members were urged to reflect on compelling realities:

The buffalo is gone, the antelope is gone, you can no longer live by hunting. You must plow like the white man. You must raise cattle to take the place of the buffalo; you must raise sheep to take the place of the antelope. You must raise wheat and corn and oats to make bread and to feed your stock. You must raise everything which the white man raises and have plenty to eat and plenty to sell. Then you can build good houses where you can keep warm and dry and be comfortable. You can wear good warm clothes and have many comforts that will make you happy.

The Yanktons had suffered severe adversities over the years, as their ancestral ways of living dwindled away. John P. Williamson, a Presbyterian missionary who lived with the Yanktons for a quarter century, would later reflect in one of his annual reports:

The Indian's occupation is gone, so far as the Yanktons are concerned. Twenty-five years ago they lived by the chase. Herds of buffalo numbering thousands ranged on the vast plains which were the hunting grounds of the Yanktons. From them they secured food, clothing and teepees, the three great objects of all industry. Now the white man has covered these vast plains with his wheat fields and herds of tame cattle, and the buffalo are no more. Never more suddenly has a ready people lost their entire means of support.

Commissioner John J. Cole explained to tribal members at one of the negotiation councils:

The Great White Father ... wants you to sell your surplus lands for which you have no use. If you want to sell these surplus lands we will buy them and pay you all they are worth, and the Government will sell them to men who will make homes on them and will build good houses and make good farms, and this will make your other lands--your homes--worth more than all your lands are now worth, and what you get from the Government for the surplus lands will be a clear gain to you.

During their meetings, both the Yanktons and the Commission members equated this proposed sale with the 1858 Treaty when the Yanktons renounced ownership of any other lands claimed in the past. After months of negotiation, a majority of the male tribal members and the Commission reached agreement. ¹ The first two articles provided:

Article I.

The Yankton tribe of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said Indians as aforesaid.

Article II.

In consideration for the lands ceded, sold, relinquished, and conveyed to the United States as aforesaid, the United States stipulates and agrees to pay to the said Yankton tribe of Sioux Indians the sum of six hundred thousand dollars ($600,000), as hereinbefore provided for.

Congressional ratification was delayed due to allegations of impropriety in negotiations. In September 1893, the Commissioner of Indian Affairs sent a special United States Indian Inspector to the reservation who, after an investigation, concluded "no undue pressure was used or improper methods resorted to...."...