YANKTON SIOUX v. WASTE MANAGEMENT DIST.

• Decision Date: 14 June 1995
• Docket Number: No. CIV 94-4217.,CIV 94-4217.
• Citation: 890 F. Supp. 878
• Parties: The YANKTON SIOUX TRIBE, a Federally Recognized Tribe of Indians, and its Individual Members, and Darrell E. Drapeau, Individually, a Member of the Yankton Sioux Tribe, Plaintiffs, v. SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, a Non-profit Corporation, Defendant. SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, Third-Party Plaintiff, v. STATE OF SOUTH DAKOTA, Third-Party Defendant.
• Court: U.S. District Court — District of South Dakota

890 F. Supp. 878

The YANKTON SIOUX TRIBE, a Federally Recognized Tribe of Indians, and its Individual Members, and Darrell E. Drapeau, Individually, a Member of the Yankton Sioux Tribe, Plaintiffs, v. SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, a Non-profit Corporation, Defendant.

SOUTHERN MISSOURI WASTE MANAGEMENT DISTRICT, Third-Party Plaintiff, v. STATE OF SOUTH DAKOTA, Third-Party Defendant.

No. CIV 94-4217.

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

June 14, 1995.

James G. Abourezk, Robin L. Zephier, Abourezk Law Offices, Rapid City, SD, for plaintiff.

Kenneth W. Cotton, Wipf & Cotton, Wagner, SD, for defendant and third-party plaintiff.

Roxanne Giedd, John P. Guhin, Charles D. McGuigan, Atty. Gen. Office, Pierre, SD, for third-party defendant.

MEMORANDUM OPINION AND ORDER

PIERSOL, District Judge.

The central issue in this case is whether the Yankton Sioux Reservation, created by the 1858 Treaty between the United States and the Yankton Sioux Tribe, was disestablished and returned to the public domain on August 15, 1894, when the Fifty-Third Congress ratified a December 31, 1892 Agreement with the Yankton Sioux for the sale of surplus lands. The Court holds that the 1894 Act did not disestablish the exterior boundaries of the Yankton Sioux Reservation. The Court also holds, however, that the Yankton Sioux Tribe failed to establish that it may exercise regulatory jurisdiction over the municipal solid waste landfill proposed to be built by Southern Missouri Recycling and Waste Management District on non-Indian land located within the exterior boundaries of the reservation. Finally, the Court holds that federal EPA regulations apply to Southern Missouri's proposed facility, that Southern Missouri will be required to install a composite liner as defined in the federal regulations, and Southern Missouri may proceed to construct the facility with the composite liner at the site selected.

I. Preservation of the Reservation

"Only Congress can divest a reservation of its land and diminish its boundaries." Solem v. Bartlett, 465 U.S. 463, 470, 104 S.Ct. 1161, 1166, 79 L.Ed.2d 443 (1984). In determining whether a reservation has been diminished or disestablished, this Court must apply the analytical structure set out in the Supreme Court precedents, looking primarily to three factors. See Hagen v. Utah, ___ U.S. ___, ___, 114 S.Ct. 958, 965, 127 L.Ed.2d 252 (1994); Solem, 465 U.S. at 470, 104 S.Ct. at 1166. The equities of the situation cannot, under established precedent, be given any consideration in determining the outcome from this analysis. The most probative evidence is the language used to open the Indian lands to settlement. Hagen, ___ U.S. at ___, 114 S.Ct. at 965. "Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unallotted opened lands." Solem, 465 U.S. at 470, 104 S.Ct. at 1166; DeCoteau v. District County Court, 420 U.S. 425, 444-45, 95 S.Ct. 1082, 1092-93, 43 L.Ed.2d 300 (1975). "A statutory expression of congressional intent to diminish, coupled with the provision of a sum certain payment, would establish a nearly conclusive presumption that the reservation had been diminished." Hagen, ___ U.S. at ___-___, 114 S.Ct. at 965-66. Secondly, the Court must consider the historical context surrounding the passage of the surplus land Act, looking more carefully to the evidence of the contemporaneous understanding of the Act rather than to matters occurring after passage of the Act. Id. Finally, the Court may explore whether diminishment occurred de facto, by considering whether the opened area was settled by non-Indians and has now lost its Indian character. Id.; Solem, 465 U.S. at 471, 104 S.Ct. at 1166. The Court will not lightly find diminishment or disestablishment, and the Court must resolve any ambiguities in favor of the Indians. Hagen, ___ U.S. at ___, 114 S.Ct. at 965. Before considering the language of the 1892 Agreement, the Court will reconstruct the events that preceded negotiation of the 1892 Agreement and consider the historical context of the 1894 ratification of the Agreement.

The evidence presented at trial shows that, in the April 19, 1858 Treaty, 11 Stat. 743, (Pl.Ex. 1), the Yankton Sioux ceded and relinquished to the United States:

all the lands now owned, possessed, or claimed by them, wherever situated, except four hundred thousand acres thereof, situated and described as follows, to wit — Beginning at the mouth of the Naw-izi-wa-koo-pah or Chouteau River and extending up the Missouri River thirty miles; thence due north to a point; thence easterly to a point on the said Chouteau River; thence down said river to the place of beginning, so as to include the said quantity of four hundred thousand acres.

The Yankton Sioux were to have exclusive occupation of the reservation lands, along with unrestricted use of the red pipestone quarry in the State of Minnesota. A land survey later conducted revealed that 430,495 acres were included in the area described by the 1858 Treaty and reserved to the Yankton Sioux. S.Exec.Doc. No. 27, 53rd Cong., 2d Sess., at 5 (1894). (Pl.Ex. 5.) The land mass comprising the 1858 Yankton Sioux Reservation is located in the central to southeastern portion of Charles Mix County, South Dakota.

In the 1858 Treaty, the Yankton Sioux relinquished and abandoned all claims and complaints growing out of any and all treaties previously made by them or other Indian Tribes, except for their claim to annuity rights under the September 17, 1851 Treaty of Laramie. In return for the cession of land and release of claims, the United States agreed to protect the Yankton Sioux in their "quiet and peaceable possession" of the tract reserved to them. The government also agreed to pay the Yankton Sioux or to expend for their benefit, starting the year of their settlement upon the reservation, the total sum of $1.6 million in annuities over a period of fifty years. The government also agreed to expend additional amounts during the first year of the Tribe's relocation for the purchase of stock, agricultural implements, and fencing, and for the construction of houses, schools, and other buildings.

In the years that followed, the federal government did not provide all of the financial assistance promised. To compound this problem, the northern plains region experienced extreme weather cycles of prolonged drought and devastating flood, leaving the Yankton Sioux desperate for cash and direct assistance. The Yankton Sioux generally did not want to become involved in the Great Sioux War, and the Tribe suffered inner turmoil during this period. Some members of the Yankton Sioux Tribe served as scouts for federal troops. The growing population of white farmers, businessmen, and railroad men began pressuring federal government officials to open the surplus lands of the Yankton Sioux Reservation for settlement.

By passage of the General Allotment Act on February 8, 1887 (Dawes Act), 24 Stat. 388, Congress attempted to reconcile the federal government's responsibility for the Indians' welfare with the desire of non-Indians to settle upon tribal lands. Congress determined that tracts of reservation land should be allotted to individual tribal members and, with the Tribe's consent, the surplus lands should be sold to white settlers, with the proceeds of these sales dedicated to the benefit of the Indians. This new policy of Congress sought to encourage the Indians to adopt the ways of the white settlers and thereby become socialized into the white culture. Faced with all of these pressures, the Yankton Sioux split into three factions: those who wished to accommodate by selling the surplus lands, those who were ambivalent about any such sale, and those who strongly opposed the sale of surplus lands.

Of the 430,495 acres of land comprising the 1858 Yankton Sioux Reservation, 167,325 acres were allotted and patented to the Indians under the Dawes Act. By early 1894, allotments under the Act of February 28, 1891, 26 Stat. 594, had been made in the field, but those allotments had not been examined and approved. The federal government estimated that some 95,000 additional acres had been allotted after passage of the 1891 Act, leaving surplus lands of approximately 168,000 acres. S.Exec.Doc. No. 27, 53rd Cong., 2d Sess., at 5 (1894); (Pl.Ex. 5.)

In 1892 the Secretary of the Department of the Interior appointed three members to serve on the Yankton Indian Commission to negotiate the sale of the surplus land owned by the Yankton Sioux. (Pl.Ex. 28.) These three commissioners were John J. Cole, J.C. Adams, and Dr. W.L. Brown; however, Dr. Brown resigned from the Commission before the negotiations were completed, and his replacement, L.W. French, was never qualified to act as a Commissioner and took no part in the negotiations. S.Exec.Doc. No. 27, 53rd Cong., 2d Sess. at 7-8, 34 (1894); (Pl.Ex. 5.) The Commission arrived at the Yankton Sioux Reservation on October 1, 1892, and began negotiating for the sale of the surplus lands at tribal councils called for that purpose. The transcribed minutes of these tribal councils reveal that the Commissioners encouraged the Yankton Sioux to voice their concerns and opinions, and that many spoke out, both for and against the sale. Id. at 47-81.

The Commission and the tribal members discussed at length whether the Tribe should cede the land in trust for later appraisal and sale to individual buyers or whether the Tribe should cede the land in a direct sale to the federal government. The Agreement ultimately reached provided for direct sale to the government. Id. at 12. The negotiators had extensive difficulty in establishing a price for the ceded land, and it was claimed that price was "the only real grounds for opposition." Id. at 22. The Indians wanted no less than $6.00 per acre for the...