Tribe v. Podhradsky, No. 08-1441

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: MURPHY, Circuit
• Citation: 606 F.3d 994
• Parties: YANKTON SIOUX TRIBE, and its individual members, Plaintiffs-Appellees/Cross-Appellants,United States of America, on its own behalf and for the benefit of the Yankton Sioux Tribe, Intervenor Plaintiff-Appellee,v.Scott J. PODHRADSKY, State's Attorney of Charles Mix County; C. Red Allen, member of the Charles Mix, South Dakota, County Commission; Keith Mushitz, member of the Charles Mix, South Dakota, County Commission; Sharon Drapeau, member of the Charles Mix, South Dakota, County Commission; M. Michael Rounds, Governor of South Dakota; Lawrence E. Long, Attorney General of South Dakota, Defendants-Appellants/Cross-Appellees,Southern Missouri Waste Management District, Interested Party.Rosebud Sioux Tribe, Amicus on behalf of Appellees.
• Docket Number: 08-1488.,No. 08-1441
• Decision Date: 06 May 2010

606 F.3d 994

YANKTON SIOUX TRIBE, and its individual members, Plaintiffs-Appellees/Cross-Appellants,
United States of America, on its own behalf and for the benefit of the Yankton Sioux Tribe, Intervenor Plaintiff-Appellee,
v.
Scott J. PODHRADSKY, State's Attorney of Charles Mix County; C. Red Allen, member of the Charles Mix, South Dakota, County Commission; Keith Mushitz, member of the Charles Mix, South Dakota, County Commission; Sharon Drapeau, member of the Charles Mix, South Dakota, County Commission; M. Michael Rounds, Governor of South Dakota; Lawrence E. Long, Attorney General of South Dakota, Defendants-Appellants/Cross-Appellees,
Southern Missouri Waste Management District, Interested Party.
Rosebud Sioux Tribe, Amicus on behalf of Appellees.

Nos. 08-1441, 08-1488.

United States Court of Appeals,
Eighth Circuit.

Submitted: May 5, 2010.
Filed: May 6, 2010.
Rehearing and Rehearing En Banc Denied Sept. 20, 2010.^*

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Pamela H. Hein, Dee Mulder, Lake Andes, SD, Tom D. Tobin, Winner, SD, for Charles Mix County.

John P. Guhin, Deputy Attorney General, Meghan N. Dilges, Asst. Attorney General, Pierre, SD, for State of South Dakota.

Mark E. Salter, AUSA, Sioux Falls, SD, for United States of America.

Rebecca L. Kidder, Charles Abourezk, Rapid City, SD, for Yankton Sioux Tribe.

Eric John Antoine, Rosebud, SD, Terry L. Pechota, Rapid City, SD, on the amicus briefs, for Rosebud Sioux Tribe.

Timothy R. Whalen, on the amicus brief, Lake Andes, SD, for The Frank Soukup Family Limited Partnership, Mark Van Duysen, and Dan Cimpl.

Kenneth Wayne Cotton, on the amicus brief, Wagner, SD, for Southern Missouri Waste Management District.

Scott J. Podhradsky, on the amicus brief, Wagner, SD, for Wagner Community School District No. 11-4.

Michael James Whalen, on the amicus brief, Rapid City, SD, for Charles Mix Electric Association.

Sandy Steffen, Gregory, SD, Susan W. Phalke, Winner, SD, Michael B. Strain, White River, SD, Gay K. Tollefson, Martin, SD, on the amicus briefs, for Tripp County, Gregory County, Mellette County and Bennett County, SD.

Craig Parkhurst, on the amicus brief, Armour, SD, for Cities Dante, Geddes, Lake Andes, Pickstown Platte, Rivinia and Wagner.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges. AMENDED OPINION MURPHY, Circuit Judge.

In this action the Yankton Sioux Tribe (Tribe) and its members sought declaratory and injunctive relief against officials of Charles Mix County ¹ and the State of South Dakota ² in respect to the boundaries of the Yankton Sioux Reservation. In an earlier stage of the case we held that the Tribe's 1894 cession of certain land to the United States had diminished, rather than disestablished, the reservation and that some land retained reservation status. Yankton Sioux Tribe v. Gaffey (Gaffey II), 188 F.3d 1010 (8th Cir.1999), cert. denied, 530 U.S. 1261, 120 S.Ct. 2717, 147 L.Ed.2d 982 (2000). We remanded to the district court for further development of the record and for “findings relative to the status of Indian lands which are held in trust.” Gaffey II, 188 F.3d at 1030.

An earlier action had been filed by the Tribe against the Southern Missouri Waste Management District (Waste District), seeking a declaration that the 1858 boundaries of the reservation remained intact and that therefore a particular site at issue was subject to federal environmental regulation. After the Tribe prevailed in the district court and on appeal,

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Yankton Sioux Tribe v. S. Mo. Waste Mgmt. Dist., 890 F.Supp. 878 (D.S.D.1995) aff'd, 99 F.3d 1439 (8th Cir.1996), the Supreme Court reversed. In South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998), the Supreme Court held that the Yankton Sioux Reservation had been diminished by the Tribe's cession of certain lands to the United States in 1894 and that the parcel at issue in the Tribe's dispute with the Waste District was not reservation land.³ The Court remanded for determination of the larger question of whether the Yankton Sioux Reservation had been disestablished or diminished.

On remand the original case was consolidated with this separate action against the county and state officials in which the Tribe seeks a declaratory judgment that all land not ceded to the United States in 1894 remains part of the Yankton Sioux Reservation under the jurisdiction of the Tribe and the federal government. The United States intervened on its own behalf and for the benefit of the Tribe. The district court ruled in favor of the Tribe, concluding that the reservation had not been disestablished but consisted of all land not ceded in 1894 as well as certain reserved “agency trust lands.” Yankton Sioux Tribe v. Gaffey (Gaffey I), 14 F.Supp.2d 1135 (D.S.D.1998). The defendants appealed, and we affirmed in part, reversed in part, and remanded for further proceedings, Gaffey II, 188 F.3d at 1030-31, holding that the reservation had been diminished rather than disestablished and that it included at least the agency trust lands, but reversing and remanding in other respects.

Now before our court are appeals filed by both sides from the judgment issued by the district court after additional proceedings on remand, Yankton Sioux Tribe v. Podhradsky, 529 F.Supp.2d 1040 (D.S.D.2007). The district court ruled that some 37,600 acres of trust land remained part of the reservation and that land continuously owned in fee by individual Indians also qualified as reservation. The county and state defendants appeal, and the Tribe, supported by the intervening United States, cross appeals. We affirm in part and vacate in part.

I.

The original boundaries of the Yankton Sioux Reservation were created by treaty between the Tribe and the United States on April 19, 1858, 11 Stat. 743 (1858 Treaty). In that treaty, the Tribe ceded more than 11,000,000 acres of land to the United States and reserved to itself approximately 430,400 ⁴ acres in what is now Charles Mix County, South Dakota. The United States guaranteed to the Tribe “the quiet and peaceable possession of the said tract,” 11 Stat. at 744, and agreed that, with certain exceptions, “[n]o white person ... shall be permitted to reside or make any settlement upon any part of the tract herein reserved for said Indians,” 11 Stat. at 747. The subsequent history of the Tribe and its reservation reflects the changing policies of the federal government over the succeeding years.

In the first half of the nineteenth century, federal Indian policy focused on removing tribes from the eastern half of the

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country and relocating them on western lands, but by the time of the 1858 Treaty, “federal policy had shifted fully from removal to concentration on fixed reservations.” Cohen's Handbook of Federal Indian Law § 1.03[6][a], at 65 (2005 ed.) ( Cohen ). These reservations were “envisioned as schools for civilization, in which Indians under the control of the agent would be groomed for assimilation.” Id.

As the westward migration of white settlers accelerated following the Civil War, pressure grew to open Indian reservations for agricultural and resource development by the newcomers. Supporters of Indian assimilation argued that as more Indians adopted white customs and agricultural practices, their need for large tracts of reservation land would diminish, freeing vast areas for white settlement and development. This approach was formalized in the General Allotment Act of 1887 (Dawes Act), ch. 119, 24 Stat. 388 (repealed in part by Pub.L. No. 106-462 § 106, 114 Stat. 1991, 2007 (2000)).

Under the Dawes Act, the executive branch was authorized to divide portions of Indian reservations into personally assigned allotments to be distributed to individual tribal members. Id. § 1, 24 Stat. at 388. The Secretary of the Interior was directed to issue patents, under which the United States would hold title to the allotments in trust for twenty five years “for the sole use and benefit of the Indian to whom such allotment shall have been made.” Id. § 5, 24 Stat. at 389. At the end of the trust period, allottees would take fee simple ownership of their individual plots, free of any restrictions against sale or alienation to non Indians. Id. Furthermore, once a reservation had been divided into allotments, the government was empowered to negotiate with the tribes for the purchase of unallotted surplus land and to open such areas to white settlement. Id.

The allotment policy in general and the Dawes Act in particular were intended to hasten the demise of the reservation system and to encourage Indian assimilation into the white system of private property ownership. “Within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers.” Yankton Sioux Tribe, 522 U.S. at 335, 118 S.Ct. 789.

Acting under the authority of the Dawes Act, federal agents allocated to tribal members individual allotments comprising 167,325 acres of the then 430,405 acre Yankton Sioux Reservation. Another 95,000 acres were subsequently allotted to tribal members under the Act of February 28, 1891, 26 Stat. 794 (1891 Act). These tribal allotments, totaling approximately 262,300 acres, were not contiguous parcels of land. Rather, the individual allotments were scattered across the reservation and interspersed with approximately 168,000 acres of unallotted surplus land. Commissioner's Letter at 5.

In 1892 a three member Yankton Indian Commission, which represented the Secretary of the Interior, traveled to the reservation to discuss the federal government's interest in acquiring the Tribe's surplus land. After lengthy negotiations, the Tribe agreed to sell all of the unallotted acreage to the United States for $600,000. The ceded land was then to be opened to white settlement, with the exception of roughly 1,000 acres...