United States v. 2,005.32 ACRES OF LAND, ETC.

• Decision Date: 10 March 1958
• Docket Number: Civ. No. 722.
• Citation: 160 F. Supp. 193
• Parties: UNITED STATES of America, Plaintiff, v. 2,005.32 ACRES OF LAND, MORE OR LESS, SITUATE IN CORSON COUNTY, SOUTH DAKOTA; and Sioux Indians of Standing Rock Reservation, et al., and Unknown Owners, Defendants.
• Court: U.S. District Court — District of South Dakota

160 F. Supp. 193

UNITED STATES of America, Plaintiff, v. 2,005.32 ACRES OF LAND, MORE OR LESS, SITUATE IN CORSON COUNTY, SOUTH DAKOTA; and Sioux Indians of Standing Rock Reservation, et al., and Unknown Owners, Defendants.

Civ. No. 722.

United States District Court D. South Dakota, N. D.

March 10, 1958.

COPYRIGHT MATERIAL OMITTED

Clinton G. Richards, U. S. Atty., Sioux Falls, S. D., H. R. Jackson, Lemmon, S. D., and Robert L. Jones, Sioux Falls, S. D., Asst. U. S. Attys., for plaintiff.

Marvin J. Sonosky, Washington, D. C., for Standing Rock Sioux Tribe.

MICKELSON, Chief Judge.

As a part of the land acquisition program for the Oahe Dam and Reservoir project, the United States of America by the Secretary of the Army has commenced condemnation proceedings against 6.45 acres of Indian tribal land, designated as Tract R-1825, belonging to the Standing Rock Sioux Indian Tribe and located on the Standing Rock Indian Reservation in South Dakota. The matter before the court is a motion by the Tribe to dismiss the complaint in condemnation and the declaration of taking as to this tract on the grounds that Congress has not authorized the condemnation of tribal lands on the Standing Rock Reservation. Although the amount of land here involved is not large, the matter has considerable significance because the Oahe project will eventually require large acreages of tribal and allotted Indian lands. The pending motion has been argued orally to the court, and briefs have been submitted by counsel on both sides.

The land in question is part of a vast reservation set aside for the Sioux Nation by a treaty between the United States and the Sioux on April 29, 1868, 15 Stat. 635. By Article 2 of that treaty, the United States agreed that the reservation land was "set apart for the absolute and undisturbed use and occupation of the Indians". Under Article 11 of that treaty, the Tribe agreed to relinguish all right to permanently occupy land outside the reservation, and further agreed not to object to the construction of "railroads, wagon roads, mail stations, or other works of utility or necessity, which may be ordered or permitted by the laws of the United States". A proviso of Article 11 stated that, in the event such roads or other works were constructed on reservation land, the amount of damages would be assessed by three commissioners, one of whom was to be a chief of the Indians. Also pertinent to the rights of the Indians to the reservation land was Article 12, which stated:

"No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians, occupying or interested in the same;".

By the subsequent treaties of 1877, 19 Stat. 254, and 1889, 25 Stat. 888, the original reservation was reduced and formed into separate reservations, one of which was the present Standing Rock Reservation. Both of these later treaties, by Article 8 of the 1877 treaty and by Section 19 of the 1889 treaty, kept the above-mentioned provisions of the 1868 treaty in force.

In addition to the provisions of the 1868 treaty, the following statute has importance in relation to the subject of the alienation of Indian lands:

"No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." 25 U.S.C.A. § 177.

The question presented by this motion, therefore, is whether, in view of this legislation and the treaty provisions, considered in the light of the history of Congressional and judicial treatment of Indians, the Secretary of the Army has sufficient authorization from Congress to acquire this tribal land by condemnation.

Certain principles of law are not disputed by either the Tribe or the Government, but a recitation of these principles will assist in placing the issue here in its proper perspective. The right of eminent domain, which is the power to take private property for public use, is an inherent incident of sovereignty requiring no constitutional recognition, and the provision of the Fifth Amendment to the federal Constitution that just compensation be paid for property taken is merely a limitation upon the use of that right. United States v. Jones, 1883, 109 U.S. 513, 3 S.Ct. 346, 27 L.Ed. 1015; United States v. Federal Land Bank of St. Paul, 8 Cir., 1942, 127 F.2d 505, 508. The right to authorize the exercise of eminent domain lies only in the Congress, and an agency or officer of the United States may take property only to the extent of the Congressional authorization. United States v. North American Transportation & Trading Co., 1920, 253 U.S. 330, 40 S.Ct. 518, 64 L.Ed. 935; United States ex rel. Tennessee Valley Authority v. Welch, 1946, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843; Youngstown Sheet & Tube Co. v. Sawyer, 1952, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. Congress has the power to authorize the taking of Indian tribal lands. Cherokee Nation v. Southern Kansas Ry. Co., 1890, 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295. Where there is a treaty with Indians which would otherwise restrict the Congress, Congress can abrogate the treaty in order to exercise its sovereign right. Thomas v. Gay, 1898, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740; Choate v. Trapp, 1912, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941.

It is obvious, then, that Congress has the authority to condemn the tract in this case, and this can be done even though it is in abrogation of the treaty provisions. But this is not to say that the treaty provisions are to be ignored, but instead it is to require that there be clear Congressional action which indicates an intention to abrogate the terms of the treaty. Manifestly, this must be so if the treaty is to have any meaning at all. By the very existence of the treaty, providing that the reservation land be set aside "for the absolute and undisturbed use and occupation of the Indians" and that there be no cession of the land except with the consent of three-fourths of the adult male Indians, a special situation has been created which requires different treatment for this Indian land than for non-Indian land. Non-Indian land is not held by virtue of such a treaty, nor has it been acquired under the circumstances in which these treaties have been made. The minimum meaning of these treaty provisions, containing solemn promises to the Indian people by the government of the United States, is that they stand as the highest expressions of the law regarding Indian land until Congress states to the contrary. The Indians are entitled to depend on the fulfilment of the terms of the treaty until the Congress clearly indicates otherwise by legislation. In any such enactment, Congress, as the guardian of the Indians, ordinarily makes ample provision for the interests of its wards. This places no unconscionable burden on the United States nor in any way impairs its sovereignty over the Indians, but merely requires a recognition of the special situation of the Indians. As will be pointed out herein, the Congress, over a long period of time, has acted constantly in accord with this requirement.

In its complaint and its declaration of taking, the Government cites five statutes to show the authority under which it is attempting to condemn this tract of tribal land. Since the established rule is that the party seeking to exercise the right of eminent domain has the burden of showing his authority, 1 Nichols on Eminent Domain, Sec. 3.213, and the existence of the 1868 treaty necessitates a Congressional intention to abrogate the applicable provisions of that treaty, the burden is on the Government in this case to show that one or more of these five statutes indicate a Congressional intention to abrogate the treaty provisions, thereby giving the Government the requisite authority to condemn the land.

The first statutes cited in the complaint are 33 U.S.C.A. § 591 and 33 U.S.C.A. § 701. Sec. 591 empowers the Secretary of the Army to acquire lands by condemnation for river and harbor projects "for which provision has been made by law." Sec. 701 extends this power to flood control projects. Unquestionably, the two statutes form the basis of the condemnation authority possessed by the Secretary of the Army in acquiring ordinary lands in the prosecution of such projects. However, by no stretch of the imagination can it be said that Congress, in the enactment of these laws, had in mind the specific situation of the Standing Rock tribal lands, or even Indian lands in general.

The principal statute upon which the Government relies is the Flood Control Act of 1944, 58 Stat. 887. Sec. 9(a) of this act gave general approval to the prosecution of designated plans for the development of the Missouri River Basin program. There is no mention of Indian lands in the act itself, but the Government calls attention to an excerpt from one of the Senate and House documents which contained the designated plans:

"The proposed reservoirs will inundate Indian lands at several points. The estimates submitted on the over-all costs of the projects include funds to cover the cost of taking such lands, and buildings, including relocation of burial grounds. It is to be understood, therefore, that approval of this plan includes authority for the Indians through their tribal councils, with the approval of the Secretary of the Interior, to convey and relinquish such property to the United States, and authority for the Secretary of War to enter into appropriate agreements with the Secretary of the Interior and the Indian tribes concerned for the payment of the fair value of the property taken, or for the contribution of a sum approximating such value toward locating or constructing

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