U.S. v. Dupris, 78-1575

Decision Date27 November 1979
Docket NumberNo. 78-1575,78-1575
Citation612 F.2d 319
PartiesUNITED STATES of America, Appellant, v. Glen D. DUPRIS, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Carl Strass, Atty., App. Section, Land and Natural Resources Div., Dept. of Justice, Washington, D. C. (argued), James W. Moorman, Asst. Atty. Gen., Anthony C. Liotta, Acting Asst. Atty. Gen., Robert L. Klarquist, Steven E. Carroll, Neil T. Proto, Attys., Dept. of Justice, Washington, D. C., and Robert D. Hiaring, U. S. Atty., Sioux Falls, S. D., on brief, for appellant.

W. Richard West, Jr., Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., for amicus curiae, Cheyenne River Sioux Tribe.

David L. Bergren, Fort Pierre, S. D., for appellee.

Tom D. Tobin, Winner, S. D., for amicus curiae, Dewey, Ziebach and Corson Counties, South Dakota, and the County of Sioux, North Dakota.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

HEANEY, Circuit Judge.

The United States appeals from the judgment of the District Court 1 dismissing an information against Glen D. Dupris, who was charged with burglary and larceny. Dupris was prosecuted under 18 U.S.C. § 1153 which provides exclusive federal jurisdiction over specified offenses committed by any Indian in "Indian country." 2 The District Court granted Dupris' motion to dismiss on the ground that there was no federal jurisdiction pursuant to 18 U.S.C. § 1153 because Eagle Butte, where the crime occurred, was not "Indian country." The District Court refused to follow the earlier opinions of this Court in United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977); United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973) (which involved the same portion of the Cheyenne River Indian Reservation as is here in question); and City of New Town, North Dakota v. United States, 454 F.2d 121 (8th Cir. 1972), believing that these opinions had been undermined by Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). It held that, while Eagle Butte was once part of the Cheyenne River Indian Reservation and thus "Indian country," the town lost its reservation status when the portion of the original reservation upon which it sits was opened for settlement in 1908. 3 Because we remain convinced that Long Elk, New Town and Erickson were correctly decided, and that no prior or subsequent decision of the Supreme Court requires us to abandon our position, 4 we reverse and remand.

In light of our view that this case is controlled by our earlier opinions, there is no need to again detail the reasoning of those cases here. However, in a thorough and scholarly dissent, Judge McMillian today raises arguments which we must now address.

The issue here in question, like that in our prior cases, is whether a congressional act that opened portions of an Indian reservation terminated Indian jurisdiction over the opened land. 5 In order for the land to lose its status as "Indian country," disestablishment must have been effected. It is now clear that in order to terminate the rights of Indians in land (to effect a disestablishment of a reservation),

"(a) congressional determination to terminate (an Indian reservation) must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history," Mattz v. Arnett, (412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973))(.)

In determining this intent, we are cautioned to follow "the general rule that '(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' " McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174 (, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129) (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367 (, 50 S.Ct. 121, 122, 74 L.Ed. 478) (1930). The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status.

Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 586-587, 97 S.Ct. at 1362-1363 (additional citations omitted).

Certainly, no congressional determination to terminate is expressed in the statute which opened the land in and around Eagle Butte. We must then decide whether the intent to terminate is clear from the surrounding circumstances and legislative history. The dissent finds the necessary intent from several factors, the first of which is the historical context of the legislation. Our colleague reasons that because (1) South Dakota leaders sought to open Indian lands on all of the state's reservations to settlement with a single-minded ardency, (2) the South Dakota Senators and Congressmen were similarly single-minded in sponsoring all of the bills accomplishing this purpose, and (3) Inspector James McLaughlin conducted negotiations on all the reservations without mention of any reserved jurisdiction for the Indians; therefore, Congress acted with like intent in passing each of the acts. That intent was to diminish the size of South Dakota's Indian reservations.

In light of Rosebud, we are unwilling to accept this reasoning. We believe that under the decisions of the Supreme Court, it is inappropriate to ascribe the motives of the South Dakota leaders and legislators to Congress as a whole, particularly when the acts in question were over the course of several years. While it may be clear that the South Dakotans sought complete control of as much Indian land as possible and that Inspector McLaughlin aided them in achieving this goal, it is not clear that Congress shared this intent in all, or any, cases.

Rosebud requires that we examine each act of Congress carefully and individually to determine whether there was a clear congressional intent to terminate. Here, a congressional intent to diminish Indian land, rather than to merely open it to settlement, is not clear. In fact, the opposite conclusion is as easily reached. The South Dakota boosters talked about an "Opening of the reservation," dissenting opinion at 327-328 (emphasis added), not diminishing its boundaries. Further, Inspector McLaughlin told the Indians on the Cheyenne River Reservation that "(i)t will be manifestly better for the Indians to have their surplus lands Opened to settlement" so that they may "readily acquire white man's civilization and industrious habits (.)" Dissenting opinion at 328 n. 11 (emphasis added). These are not clear expressions of a congressional determination to terminate.

The second factor considered by our colleague is the language of the statute. While he concedes that "no language of cession" is in the statute, he argues that the historical context in which the act was written makes this omission irrelevant. Although we agree that perhaps too much weight has been given in the past to the use of the word "cede" in these statutes, we are not persuaded that the term's presence or absence is totally irrelevant.

Nor are we persuaded by our colleague's argument that this statute was the functional equivalent of those statutes which contain language of cession. He bases this argument on his belief that the statute's drafters told Congress (and Inspector McLaughlin told the Indians) that settlement statutes achieved the same result with or without cession language.

The first problem with this argument is that Congressman Charles H. Burke told his colleagues simply that this act was "in line with the recent bills which have been passed affecting the sale of Indian reservations," dissenting opinion at 329, which is hardly an unambiguous statement of intent. Second, because Inspector McLaughlin's statements were made to Indians in a vastly inferior bargaining position, they were equally ambiguous. He talked about opening the lands for settlement in one breath, and something more than that in the next. Further, even the instructions given to McLaughlin by Indian Commissioner F. E. Leupp are ambiguous. As quoted in the dissenting opinion, those instructions were as follows:

The instructions given you before you conferred with the Rosebud Indians concerning the opening of Tripp County (the 1907 statute) may be followed So far as applicable.

Dissenting opinion at 329-330 (emphasis added, footnote deleted).

In light of these instructions and the history of relations between the Bureau of Indian Affairs and the Indians, we would be reluctant to hold that McLaughlin was necessarily following clearly expressed congressional intent.

The dissent also argues that weight should be given to the provisions of the statute with respect to school lands and intoxicating beverages. Certainly, some weight should be given to the school argument, but there was a similar provision in the act considered in Long Elk and we held it was of minimal importance in light of the entire record. United States v. Long Elk, supra at 1038-1039. Very little weight can be given to the liquor argument. As the government correctly points out, the Indians specifically requested a 1910 amendment to the Act which made federal liquor laws applicable to all reservation lands held by non-Indians, whether those lands were opened to settlement by the 1908 Act or not.

A fourth factor cited by our colleague as being important is the legislative history. Again, the dissent refers to McLaughlin's meetings with the Indians, Leupp's instructions to McLaughlin, and the South Dakota congressional delegation's statements on the issue. No reference is made to any new quotation from the Congressional Record. We are left then with the ambiguous statements previously discussed.

The fifth factor discussed was whether an agreement between the government and the Indians existed which indicated a congressional intent to diminish the reservation. The dissent concedes there was no written or oral agreement to indicate a contemporaneous understanding. However, it professes to find support for its view in two facts: McLaughlin reported...

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  • Wilson, In re
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