The City of New Town, North Dakota v. United States, 71-1147.

• Decision Date: 17 January 1972
• Docket Number: No. 71-1147.,71-1147.
• Parties: THE CITY OF NEW TOWN, NORTH DAKOTA, a Municipal Corporation, Appellant, v. The UNITED STATES of America and Rogers C. B. Morton, Secretary of the Interior, The Three Affiliated Tribes, Fort Berthold Reservation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

454 F.2d 121 (1972)

THE CITY OF NEW TOWN, NORTH DAKOTA, a Municipal Corporation, Appellant, v. The UNITED STATES of America and Rogers C. B. Morton, Secretary of the Interior, The Three Affiliated Tribes, Fort Berthold Reservation, Appellees.

No. 71-1147.

United States Court of Appeals, Eighth Circuit.

January 17, 1972.

Jon R. Kerian, Bosard, McCutcheon, Kerian & Schmidt, Minot, N. D., for appellant.

Thomas L. Adams, Jr., Atty., Dept. of Justice, Washington, D. C., Shiro Kashiwa, Asst. Atty. Gen., Harold O. Bullis, U. S. Atty., Fargo, N. D., Robert S. Lynch, Atty., Dept. of Justice, Washington, D. C., for appellee United States.

Jerry C. Straus, Washington, D. C., for the Three Affiliated Tribes; Wilkinson, Cragun & Barker, Charles A. Hobbs, R. Anthony Rogers, Washington, D. C., of counsel.

Before GIBSON, BRIGHT and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

This is an appeal by the plaintiff City of New Town, North Dakota, from a summary judgment¹ entered in favor of the defendants, the United States of America, the Secretary of the Interior, and the Three Affiliated Tribes of the Fort Berthold Reservation,² declaring (under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.) that the Act of June 1, 1910, 36 Stat. 455 (hereinafter referred to as the 1910 Act), and Acts supplementary thereto, did not change the boundaries of the Fort Berthold Indian Reservation, North Dakota, as established by the Act of March 3, 1891, 26 Stat. 1032. We affirm.

The pertinent facts are not in dispute. The boundaries³ of the Fort Berthold Reservation were established by the Act of March 3, 1891, 26 Stat. 1032. The reservation as originally established is shown on the map attached as an appendix to this opinion; it is subdivided (for the purpose of this case) into three areas, A, B, and C, the relevance of which will be subsequently explained.

By the 1910 Act, Congress opened certain lands of the reservation for homesteading. While we will discuss the 1910 Act in more detail later in this opinion, certain practical effects following the Act may be outlined here. The Act in general dealt with the lands north and east of the Missouri River; the lands south and west of the river (Area C) have always been conceded to be a reservation for the Indians and are not in controversy here. The lands north and east of the river are divided into Area A and Area B, a division which is purely arbitrary for the purposes of this suit. Most of the land in Area B was allotted to individual Indians, and most of the land in Area A was settled by white homesteaders following the 1910 Act. For some time following the 1910 Act, it was apparently thought that only Area C remained as the reservation. However, by 1938 it was apparently generally recognized that Area B was also part of the reservation, but as a matter of general practice, Area A has not been treated as belonging on the reservation.

The result of this practice has been that the City of New Town, as well as other municipalities⁴ located within Area A, has exercised criminal jurisdiction over Indians committing offenses within their general jurisdiction. However, if Area A is actually a part of the reservation, then Indians living within the reservation are subject only to the jurisdiction of the tribal courts or in the case of major crimes to the jurisdiction of the federal district courts.⁵

The question of the reservation's boundaries as it affected criminal jurisdiction arose in 1962 when one Glen Snowbird, an Indian, was in state custody on a charge of assault with a dangerous weapon, the crime having been committed in New Town. In response to an inquiry, the Deputy Commissioner of Indian Affairs, John Crow, wrote a letter giving an opinion as to the reservation's boundaries, concluding that the City of New Town was not within the reservation and thus that it had jurisdiction over the offense. Generally speaking, the import of the Crow letter was that Congress had intended by the 1910 Act to diminish the Fort Berthold Reservation by removing from it all the land north and east of the Missouri River, but because of subsequent administrative practice it was now established that the reservation boundaries included the area designated as Area B on the map. However, administrative practice had been not to treat Area A as part of the reservation, and therefore the Crow letter concluded that Area A was not part of the reservation and thus that the City of New Town had jurisdiction over the offense. It may be noted that Crow was not a lawyer and did not occupy a position established for the purpose of rendering legal advice in the Department of the Interior.

Apparently the matter rested until 1970, when the Solicitor for the Department of the Interior issued a carefully considered opinion which concluded that the 1910 Act had not altered the boundaries of the reservation, that no authority existed for the administrative alteration of reservation boundaries, and that therefore the boundaries remained as established under the Act of March 3, 1891. Subsequently, the City of New Town instituted the instant declaratory judgment action seeking a declaration of the boundaries of the reservation, alleging that as a result of the Solicitor's opinion its municipal powers had been usurped and it was no longer able to assert jurisdiction over Indians within its city limits. As noted above, summary judgment was entered in favor of the defendants, and the City of New Town appeals.

New Town bases its argument that it is not within the limits of the Fort Berthold Reservation primarily on provisions in the 1910 Act and Acts supplementary thereto. We now turn to a general summary of that Act.

By Section 1 of the statute, the Secretary of the Interior was authorized and directed to survey all of the unsurveyed part of the reservation, and "to sell and dispose of, as hereinafter provided, all the surplus unalloted and unreserved lands within that portion of said reservation lying and being east and north of the Missouri River." It is to be specifically noted that the surplus lands which were thus to be disposed of might be located throughout Areas A and B, and no distinction was made in this regard. Furthermore under this section, the Secretary was directed to have a geological examination made of all the lands in this area and if any were found to bear coal or other minerals, they were to be reserved from disposition. Pursuant to this authority, some 238,082 acres of land were reserved as being valuable for coal; some 110,000 of these acres were in Area A.⁶

Section 2 of the statute authorized an allotment of 160 acres of agricultural land or 320 acres of grazing land to each Indian living on the reservation, these allotments to be in addition to allotments which had been previously authorized. These additional allotments were limited to that portion of the reservation lying west and south of the Missouri River, and that portion east and north of the river comprising Area B. This is the only section of the statute making any distinction between Area A and Area B. Furthermore, under prior statutory authority allotments had been made to individual Indians throughout Areas A and B, and these prior allotments were not affected by the 1910 Act.

Sections 3 and 4 of the statute authorized the Secretary to set aside lands for agency, school, religious, and farm purposes to be maintained for the benefit of the Indians. No distinction is made between Areas A and B, and the record before us does not reveal where, if at all, these lands were set aside.

Section 5 of the statute authorized the Secretary to set aside lands which were valuable for power or reservoir sites. Again, no distinction was made between Areas A and B, and the land so set aside was in Area A.

Section 6 authorized the Secretary to designate townsites and to lay them out in lots and blocks as authorized by the townsite laws, with the net proceeds from the sale of the lots to be credited to the Indians. No distinction was made in the statute between Areas A and B, and the townsites to set aside were located in Area A.⁷

Section 7 provided for the establishment of a commission to appraise and classify the lands. One of the members of the commission was to be a member of the tribe.

Section 8 granted school lands to the State of North Dakota. These lands were selected by the State over a period of time, and were selected throughout Areas A and B. The section made no distinction between Areas A and B.

Section 9 provided for the disposition of surplus lands (i. e., lands not set aside under other provisions of the Act) under the provisions of the homestead and townsite laws of the United States. The section made no distinction between Areas A and B, and homesteading in fact occurred throughout Areas A and B, although the bulk of the homesteads were established in Area A due to the fact that a large portion of Area B was allotted to individual Indians under Section 2 of the Act, or was reserved as coal lands.

Section 10 authorized the Secretary to set aside as a tribal forest reserve all timber lands, no distinction being made between Areas A and B; the lands so set aside were in fact in Area A.

Section 11 provided that the net proceeds derived from the sale of the lands "shall be paid into the Treasury of the United States to the credit of the Indians belonging to and having tribal rights on said reservation * * *."

Section 12 made necessary appropriations.

Section 13 provided that all the lands affected by the statute should be subject to federal laws prohibiting the introduction of intoxicants into "Indian country."

Section 14 provided that the United States was not bound to find purchasers for the opened land and further provided:

"That nothing in this Act shall be construed to deprive said Indians of Fort Berthold Indian Reservation of any benefits to which they are entitled under existing treaties or agreement not

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