Yankton Sioux Tribe v. Podhradsky

• Decision Date: 19 December 2007
• Docket Number: No. CIV 98-4042.,CIV 98-4042.
• Citation: 529 F.Supp.2d 1040
• Parties: YANKTON SIOUX TRIBE, and its individual members, Plaintiffs, United States of America, on its own behalf and for the benefit of the Yankton Sioux Tribe, Plaintiff-Intervenor, v. Scott PODHRADSKY, States Attorney of Charles Mix County, et al., Defendants.
• Court: U.S. District Court — District of South Dakota

529 F.Supp.2d 1040

YANKTON SIOUX TRIBE, and its individual members, Plaintiffs, United States of America, on its own behalf and for the benefit of the Yankton Sioux Tribe, Plaintiff-Intervenor, v. Scott PODHRADSKY, States Attorney of Charles Mix County, et al., Defendants.

No. CIV 98-4042.

United States District Court, D. South Dakota, Southern Division.

December 19, 2007.

COPYRIGHT MATERIAL OMITTED

James G. Abourezk, Sioux Falls, SD, for Plaintiffs.

Mark E. Salter, Jan L. Holmgren, Diana J. Ryan, Assistant U.S. Attorneys, Sioux Falls, SD, for United States.

John P. Guhin, Meghan N. Dilges, Pierre, Scott J. Podhradsky, Lake Andes, Tommy Drake Tobin, Winner, SD, for Defendants.

MEMORANDUM OPINION AND ORDER

LAWRENCE L. PIERSOL, District Judge.

This case is on remand from the Eighth Circuit Court of Appeals.¹ A trial to the. Court was held on November 13 and 14, 2007. For the reasons set forth below, the Court finds the following categories of land within the original 1858 treaty boundaries of the Yankton Sioux Reservation remain part of the reservation and are Indian country under 18 U.S.C. § 1151(a): (a) land reserved to the federal, government in the Act of Aug. 15, 1894, Ch. 290, 28 Stat. 286, 314-19, and then returned to the Yankton Sioux Tribe; (b) land allotted to individual Indians that remains held in trust; (c) land taken into trust under the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-77); and (d) Indian owned fee land that has continuously been held in Indian hands.

I. BACKGROUND

It must be decided on remand what remains of the Yankton Sioux Reservation following the Supreme Court's decision in South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998) ("Yankton Sioux Tribe"), holding that the reservation had been diminished, and the Eighth Circuit's decision in Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1030 (8th Cir.1999) ("Gaffey II"). The Supreme Court held that the Yankton Sioux Reservation was diminished by the land ceded to the United States by the Yankton Sioux Tribe at the end of the nineteenth century. See Yankton Sioux Tribe, 522 U.S. at 358, 118 S.Ct. 789. The issue of whether the Yankton Sioux Reservation was disestablished, however, was not addressed by the Supreme Court, and the case was remanded for further proceedings. Id. On remand, this Court held that the Yankton Sioux Reservation was not disestablished, that all nonceded lands continued to be part of the reservation, and that all nonceded lands were subject to federal criminal jurisdiction. See Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d 1135 (D.S.D.1998) ("Gaffey"). On appeal the Eighth Circuit affirmed this Court's decision that the Yankton Sioux Reservation was not disestablished, but found that the reservation was "further diminished by the loss of those lands originally allotted to tribal members which have passed out of Indian hands." Gaffey II, 188 F.3d at 1030. Those lands are no longer "part of the Yankton Sioux Reservation and are no longer Indian country within the meaning of 18 U.S.C. § 1151." Id. In Gaffey II, the Eighth Circuit made clear that it was faced with considering "the undetermined current status of the 262,000 acres originally allotted to tribal members, some of which remain in trust, but the bulk of which have lost their trust status and are owned in fee by non Indians." 188 F.3d at 1017. Further, the Eighth Circuit explained that, "[t]he question here is one of jurisdiction, that is to what extent the Tribe retains jurisdiction over any nonceded land within the original reservation boundaries." Id. It should be reconfirmed that this case involves jurisdiction issues and does not affect title to real estate.

Regarding the boundary issue, the Eighth Circuit held that, "the original exterior treaty boundaries of the reservation have not been maintained." Gaffey II, 188 F.3d at 1030. The Eighth Circuit found that, "[t]he text of the 1894 Act and evidence regarding the parties' contemporaneous understanding of it establish that the reservation was maintained, but do not define its precise boundaries. When viewed in its full historical context, however, it is clear that the parties did not intend for the tribe to retain control over allotted lands which passed out of trust status and into non Indian hands." Gaffey II, 188 F.3d at 1030.

Addressing land now owned in fee by individual Indians, the Eighth Circuit assumed that such land "is not under tribal jurisdiction unless it is found to be `within the limits of [the] Indian reservation.'" Id. (quoting 18 U.S.C. § 1151(a)). Based upon the record before the Eighth Circuit, however, it was unable to define the precise boundaries of what remains of the Yankton Sioux Reservation. Id. Accordingly, on remand the Court is required to develop a further record and determine what the boundaries are of the Yankton Sioux Reservation. Contrary to the position of the Tribe, no one line can circumscribe what remains of the Yankton Sioux Reservation. Also, contrary to the position of the Defendants, the Yankton Sioux Reservation does exist.

Prior to the trial, the Court in 2006 set forth in a Memorandum Opinion and Order the issues that would be considered on remand. (Memorandum Opinion and Order, Doc. 223.) In that decision, the Court determined the following issues are to be decided in this remand proceeding: (1) Whether the boundaries of the Yankton Sioux Reservation were frozen by the enactment of 25 U.S.C. § 398d, which the Tribe refers to as "the 1927 Act"; (2) If the boundaries of the Yankton Sioux Reservation were not frozen by the 1927 Act, were the boundaries frozen by the Indian Reorganization Act, Ch. 576, 48 Stat. 984 (1934) (codified as amender at 25 U.S.C. §§ 461-77), referred to as "the 1934 Act", such that all lands alienated to non-Indians after 1934 and prior to the 1948 Supervised Sales Act, 25 U.S.C. § 483, are within the boundaries of the Yankton Sioux Reservation; (3) What lands are currently trust lands; (4) Are the trust lands "Indian country" under 18 U.S.C. § 1151(a)² or § 1151(c)³; and (5) What is the reservation status of nonceded fee lands to the extent that such status has not been decided by the appellate courts.

Defendants' primary arguments are that the Court should find the Yankton Sioux Reservation has been disestablished, that there are no remaining boundaries of the reservation and that no lands within the former reservation constitute "reservation" under 18 U.S.C. § 1151(a). They contend none of the individual categories of land identified by the courts or the parties constitute "reservation" under 18 U.S.C. § 1151(a). Contrary to the United States' position, Defendants contend each individual parcel of land taken into trust does not become a discrete "reservation" under 18 U.S.C. § 1151(a), with its own boundaries, and each piece of allotted land does not have such "reservation boundaries." Defendants argue the Tribe's position that the northern 1858 boundary is gone but that the southern 1858 boundary remains is untenable. Set forth immediately below are more specific arguments advanced by Defendants in support of their general arguments described above.

Defendants argue there are no "reservation" boundaries as that term is defined under 18 U.S.C. § 1151(a), because the reservation has been disestablished and Congress has not created new boundaries. Congress' failure to create new boundaries results in the Yankton Sioux Reservation having no boundaries and the Courts lack the power to themselves create such boundaries, according to Defendants. Next, Defendants argue the South Dakota Supreme Court's determination in Bruguier v. Class, 599 N.W.2d 364 (S.D.1999), that the Yankton Sioux Reservation has been disestablished, is correct. In a similar vein, Defendants argue the Eighth Circuit's determination that the Yankton Sioux Reservation has not been disestablished is inconsistent with the Supreme Court's decision in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). The law of this case is that the Yankton .Sioux Reservation has been diminished and not disestablished. DeCoteau is distinguishable and does not control nor affect this controversy. The Tribe and the Defendants were advised prior to the Court trial that their respective positions that there was no diminishment and that there was disestablishment would not be revisited in this trial. (Order, Doc. 399, Nov. 8, 2007.)

Addressing claims raised by the Tribe following the remand, the Defendants argue 25 U.S.C. § 398d, or the "1927 Act", did not freeze the boundaries of the Yankton Sioux Reservation as of 1927. First, Defendants contend the Tribe waived this argument by not raising it earlier in this litigation and is barred by the issuance of the mandate by the Eighth Circuit and the law of the case doctrine. Second, Defendants contend the 1927 Act does not apply to the Yankton Sioux Reservation because that Act applies only to executive order reservations, not to reservations created by treaty, as was the Yankton Sioux Reservation. Finally, Defendants maintain that even if the Court determines the 1927 Act could apply to treaty reservations, the Act did not "freeze" the boundaries of the Yankton Sioux Reservation because the intent of the 1927 Act was to impose limits on the authority of the President to enlarge or contract reservation boundaries. The 1927 Act was not intended to limit the ability of Congress to continue the policy of former acts it passed, such as the 1894 Act by which Congress intended to increase jurisdiction of the State of South Dakota on the Yankton Sioux Reservation as white settlers came on to the opened lands. Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, 314-19("1894 Act"); see Gaffey II, 188 F.3d at 1028 (explaining that the 1894 Act "intended to diminish the reservation by not only the ceded lands,...