YANKTON SIOUX TRIBE v STATE OF SD
__________
No. 95-2647
__________
Yankton Sioux Tribe, a *
federally recognized tribe of *
Indians, and its individual *
members; Darrell E. Drapeau, *
individually, a member of the *
Yankton Sioux Tribe, *
*
Plaintiffs - Appellees, *
*
v. *
*
Southern Missouri Waste *
Management District, a *
non-profit corporation, * Appeal from the United States
* District Court for the
Defendant - Third party * District of South Dakota
plaintiff - Appellee, *
*
v. *
*
State of South Dakota, *
*
Third party defendant - *
Appellant. *
------------------------- *
Charles Mix County, South *
Dakota; Flandreau Santee Sioux *
Tribe, Inc.; United States of *
America; *
*
Amicus Curiae *
*
Vine Deloria, Jr.; Philip S. *
Deloria; Philip Lane, Sr.; *
Philip Lane, Jr.; James *
Weddell, Descendants of *
Francois Deloria, Signatory to *
the Treaty of 1858, and *
descendants and relatives of *
Philip J. Deloria, Chief of *
Band Eight of the Yankton *
Sioux Tribe, at the time of *
the negotiation and *
ratification of the agreement *
of December 31, 1892. *
*
Amici Curiae *
__________
Submitted: May 13, 1996
Filed: October 24, 1996
__________
Before RICHARD S. ARNOLD, Chief Judge, MAGILL and MURPHY, Circuit
Judges.
__________
MURPHY, Circuit Judge.
This case raises questions about the extent to which an 1894
act of Congress affected the reservation of the Yankton Sioux Tribe
in South Dakota. That statute ratified and incorporated an 1892
agreement between the tribe and the United States. The tribe
brought this declaratory judgment action to enforce its claimed
right to approve and regulate a landfill site over which the state
claims jurisdiction on the basis that the 1894 statute
disestablished or diminished the Yankton reservation. After a
trial the district court(1) ruled that the site was still part of the
Yankton reservation so federal environmental laws applied, but that
the tribe did not have regulatory authority over the project, which
it declined to enjoin. The state appealed from the judgment, and
we affirm.
I.
The Southern Missouri Waste Management District (Waste
District) is a non-profit corporation which was established by
several South Dakota counties to develop a regional solid waste
landfill, for which it purchased land within the boundaries of
Charles Mix County. The proposed site had been owned by a non-Indian but was within the Yankton Sioux Indian Reservation as
defined by the 1858 treaty between the tribe and the United States.
The Waste District filed an application with the South Dakota
Department of Environment and Natural Resources for a solid waste
permit to construct the landfill on the site. The Yankton tribe
was concerned about possible effects of the project, and it
intervened and participated in the December 1993 administrative
hearing on the permit application.
After the state granted the permit, the tribe(2) sued the Waste
District in federal court to stop construction until it could
review and regulate the project. It sought a declaratory judgment
that the boundaries established in the 1858 treaty still define the
extent of the reservation. The Waste District joined the state as
a third party defendant, and the state argued that the tribe had no
jurisdictional authority over the 200,000 noncontiguous acres ceded
to the United States in 1894.
The case was tried to the court over five days. The tribe's
(1) The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
(2)The tribe sued on behalf of itself and its individual members,
one of whom, tribal chairman Darrell E. Drapeau, also sued
individually (collectively referred to as "the tribe").
The United States, the Flandreau Santee Tribe, and various
descendants of two nineteenth century Yankton Sioux filed amicus
briefs supporting the tribe on this appeal, and amicus Charles Mix
County has supported the position of the state.
expert on Yankton Sioux history, Professor Herbert Hoover,
testified that his research revealed no historical reason to
believe the boundaries of the reservation had been changed by the
1894 act. Several witnesses testified for each side as to the
potential impact of the landfill on tribal activities, the
political organization and history of the tribe, and their
perception of the reservation's boundaries. Much of the trial
focused on technical issues relating to the construction andintegrity of the landfill.
After considering post-trial briefing by the parties which
focused on the legal significance of a savings clause in the 1892
agreement, the district court entered a declaratory judgment. It
concluded that the 1894 act ratifying the 1892 agreement did not
disestablish or diminish the size of the reservation. Yankton
Sioux Tribe v. Southern Missouri Waste Management District, 890 F.
Supp. 878, 891 (D.S.D. 1995). The landfill site was therefore
still part of the reservation, and regulations of the Environmental
Protection Agency (EPA) applied, including the requirement that a
synthetic liner be installed in each of the landfill cells to
prevent leakage.(3) The court also concluded that the tribe had not
shown a right to regulate the landfill site since it had not
established either exception to the general rule that Indian tribes
cannot regulate the activities of non-Indians, even on a
reservation. Montana v. United States,
450 U.S. 544, 564-66
(1981); see also, A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir.
1996) (en banc), cert. granted, 64 U.S.L.W. 3795 (U.S. Oct. 1,
1996) (No. 95-1872) (matters affecting tribal self-government and
consensual relations with the tribe are excepted). The court also
declined to enjoin the landfill project so long as it complied with
the EPA liner requirement.
On appeal South Dakota argues that the district court erred as
a matter of law in concluding that the 1858 tribal boundaries
remain in effect despite the 1892 agreement, its ratification in
1894, and the subsequent sale of unallotted land. It contends that
the language of the agreement, its ratifying statute, and
surrounding circumstances show that Congress intended that theboundaries established by the treaty of 1858 be disestablished or
diminished.(4) The tribe responds that the intent and interest of
Congress was in purchasing land for resale to non-Indian settlers,
not in eliminating tribal authority in the area reserved in the
treaty of 1858.(5)
II.
In the 1858 treaty between the Yankton Sioux and the United
States the tribe surrendered over 11 million acres, and the United
States in turn agreed "[t]o protect the said Yanctons [sic] in the
quiet and peaceable possession" of a 430,000 acre reservation in
southern South Dakota and a much smaller reservation in
southwestern Minnesota.(6) 11 Stat. 743. The tribe also received
$1.6 million to be paid in annuities over 50 years, as well as
funds for a mill, schools, houses, and other expenses related to
establishing the reservation.
The decades following the signing of the treaty brought
significant changes in federal Indian policy as more settlers moved
westward, increasing the demand for places to homestead. Solem v.
Bartlett,
465 U.S. 463, 466
& n.6 (1984). Congress was also
confronted with how to deal with tribes whose reservations had once
been isolated but were located in areas in which states were then
being formed.
In 1887 Congress passed the General Allotment Act (Dawes Act).
24 Stat. 388 (1887), codified at 18 U.S.C SS 331 et seq.. The
Dawes Act permitted the federal government to allot plots of
reservation land to individual Indians. Once the members of a
tribe had received their individual allotments ("allotted lands")
(3) South Dakota had approved the project plan to use only a two
foot compacted clay liner to contain the garbage. Since the EPA
had granted authority to the state to approve projects within its
jurisdiction, synthetic liners would not have been required if the
site were not on the Yankton reservation.
(4)"Diminished" and "disestablished" seem to be used
interchangeably in some cases. See, e.g., Rosebud Sioux Tribe v.
Kneip,
430 U.S. 584
(1977). "Disestablishment" appears to be more
precisely used to describe the relatively rare elimination of a
reservation, see, e.g., DeCoteau v. District County Court,
420 U.S.
425
(1975), as opposed to reduction in the size of a reservation or
"diminishment." See, e.g., Rosebud Sioux Tribe v. Kneip,
430 U.S.
584
(1977).
South Dakota uses both terms in stating its position without
really distinguishing between them, but its core argument is that
the 1894 act eliminated the reservation, leaving the tribe and
federal government with jurisdiction only over remaining trust
lands.
(5)The tribe did not appeal the district court's denial of an
injunction against the project or its conclusion that the tribe did
not have regulatory authority over it.
(6)Evidence at trial disclosed that the Yankton Sioux had previously
given up some 2 million acres in the 1830s and had historically
been one of the most peaceful Indian tribes.
from the government, the surplus land ("unallotted lands") could be
sold to non-Indian settlers. It was the government's policy until
the early 1900s to sell reservation lands to settlers only after
negotiating an agreement with the relevant tribe.(7)
The Dawes Act was intended both to advance the "civilization"
and welfare of Indians and to provide land for settlement. See
DeCoteau,
420 U.S. at 432
. Although it did not mandate the
elimination of reservations, it was hoped that under the allotment
policy Indians would benefit from individual ownership and
responsibility, abandon their communal notions of property and
social organization, and learn to farm from their non-Indian
neighbors. Hagen v. Utah, 114 S. Ct. 958, 961 (1994). Individual
members of the Yankton tribe eventually received allotments
totalling about 230,000 acres scattered throughout the reservation.
Yankton Sioux Tribe v. United States, 623 F.2d 159 (Ct. Cl. 1980).
By 1892 there was considerable pressure from settlers for moreland in South Dakota, and a three member commission was appointed
to negotiate with the Yankton Sioux about their unallotted lands.
The commission was charged with reaching an agreement that would
allow the United States to buy as much of the unallotted land as
the tribe would sell. The record shows that some tribal members
were interested in selling because of a severe drought and because
of concerns for the elderly and infirm, the status of the Pipestone
quarry in Minnesota, and compensation owed tribal members for their
service in the United States Army. The government hoped that the
new policy would help the Yankton Sioux assimilate. The Senate
Committee on Indian Affairs reported that "close contact with the
frugal, moral, and industrious people who will settle there will
stimulate individual effort and make their progress much more rapid
than heretofore." S. Rep. No. 196, 53d Cong., 2d Sess. 1 (1894).
The commission eventually succeeded in securing the signatures
of a majority of the male members of the tribe in favor of sale of
the unallotted lands. Under the agreement, dated December 31,
1892,(8) the federal government would pay $600,000 with interest for
some 200,000 acres within the boundaries of the reservation that
had been established by the treaty of 1858.(9) The government
intended then to sell plots of this land to settlers.
The agreement of 1892 contained several key provisions. In
Article I the tribe agreed to "cede, sell, relinquish, and convey"
all its right and title to transferred land, but Article XVIII
stated that "Nothing in this agreement shall be construed toabrogate the treaty of April 19th, 1858" and that all provisions of
that treaty "shall be in full force and effect, the same as though
this agreement had not been made . . . ." Consistent with the
Dawes Act, the agreement also stated that lands allotted to tribal
members were to be trust lands of the United States for twenty-five
years, rather than grants to the Indians in fee simple. Articles
IV, IX.
Congress incorporated the agreement into the ratifying statute
in 1894 which passed without significant amendment.(10) 28 Stat. 286,
314. President Cleveland opened the unallotted lands for
settlement by proclamation on May 16, 1895.
Congressional policy later changed when it became clear in the
first decades of the twentieth century that the allotment policy
was failing. Solem,
465 U.S. at 468
n.9; Mattz v. Arnett,
412 U.S.
481, 496
n.18 (1973). A significant number of Indians had notbecome self-sustaining farmers, and many allotments had been sold
off when the allottees died. On the Yankton reservation for
instance, only 100,000 of over 200,000 acres originally allotted
remained in Indian hands by 1914. United States v. Perrin,
232
U.S. 478
(1914). Critics concluded that the policy of integration
by means of allotment had resulted in even greater poverty for
Indian people. See Felix Cohen, Handbook of Federal Indian Law
(7)In 1903 the Supreme Court ruled that Congress could
unilaterally abrogate treaties with Indian tribes. Lone Wolf v.
Hitchcock,
187 U.S. 553, 566
(1903); see also Solem,
465 U.S. at
470
n.11.
(8)The required number of signatures was not obtained until
several months after the date of the agreement.
(9)There is conflicting evidence in the record regarding the number
of acres allotted to Indians and the number of unallotted acres
sold to the United States. The Court of Claims later determined
that roughly 230,000 acres were allotted to tribal members and some
200,000 unallotted acres were sold in 1894. Yankton Sioux Tribe,
623 F.2d at 174.
(10) The following are the relevant provisions Congress added to
enact the agreement:
Therefore, Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, That said agreement be, and the same
hereby is, accepted, ratified, and confirmed.
That for the purpose of carrying the provisions of this
Act into effect there is hereby appropriated, out of any
moneys in the Treasury not otherwise appropriated, the
sum of six hundred thousand dollars, or so much thereof
as may be necessary....
That the lands by said agreement ceded, to the United
States shall, upon proclamation by the President, be
opened to settlement, and shall be subject to disposal
only under the homestead and town-site laws of the United
States, excepting the sixteenth and thirty-sixth sections
in each Congressional township, which shall be reserved
for common-school purposes and be subject to the laws of
the State of South Dakota: Provided, That each settler
on said lands shall... pay to the United States ...
three dollars and seventy-five cents per acre....
215-17 (1988 ed.)
Congress responded with the Indian Reorganization Act of 1934,
48 Stat. 984 (1934), codified as amended at 25 U.S.C. SS 461 et
seq., which once again placed primary emphasis on reservations in
its Indian land policy. Id. Congress authorized the Secretary of
the Interior to exchange lands held by Indians and non-Indians
within each reservation in an attempt to consolidate tribal lands.
Id. at SS 463e. Nevertheless, the lands owned by Yankton Sioux
tribal members remain scattered throughout the area of the 1858
reservation. Most of these lands are held in trust by the United
States. Although the trust period was only to run twenty-five
years, it was extended by executive order in 1920, Exec. Order
April 16, 1920, and then apparently indefinitely by the Indian
Reorganization Act in 1934. 48 Stat. 984, SS 2.
III.
Certain basic principles are part of the legal framework for
the issues raised by the parties. Once a reservation is created by
Congress through a ratified treaty or agreement, only Congress can
reduce or eliminate it, and it must "clearly evince" its intent to
do so. Solem,
465 U.S. at 470
. Opening a reservation to
settlement is not inconsistent with the preservation of existing
boundaries, Id., and some agreements and treaties preserved
reservation boundaries, see, e.g., Id.; Mattz v. Arnett,
412 U.S.
481
(1973); Seymour v. Superintendent,
368 U.S. 351
(1962), while
others caused them to be diminished. See, e.g., Hagen v. Utah, 114S. Ct. 958 (1994); Rosebud Sioux Tribe v. Kneip,
430 U.S. 584
(1977); DeCoteau v. District County Court,
420 U.S. 425
(1975).
Ambiguity at any point is to be resolved in favor of the Indians,
and diminishment should not be found lightly. Hagen, 114 S. Ct. at
965. Since federal policy towards Indians has changed over time,
cases dealing with disestablishment and diminishment issues present
difficult questions of statutory intent. Solem,
465 U.S. at 468
;
see also, Hagen, 114 S. Ct. at 973 (Blackmun, J., dissenting).
Each agreement with Indian tribes is different and must be
evaluated in light of all the circumstances. Hagen, 114 S. Ct. at
965-66. The Supreme Court has devised a "fairly clean analytical
structure" for diminishment cases; this requires consideration of
the language of the statute and any agreement it incorporated, the
historical context surrounding its passage, and how the land in
question has been used since. Id. The parties disagree about the
significance of some of the sections of the Yankton agreement and
the historical evidence.
A.
The most important factor in determining whether Congress
intended to disestablish or diminish the Yankton reservation is the
1894 statute, which incorporated the text of the 1892 agreement.
Id. at 965. The state believes the language used to describe the
conveyance in Articles I and II is particularly relevant, while the
tribe focuses on the savings clause in Article XVIII. Each side
claims that other sections in the agreement also support its
respective position.
South Dakota argues that the language in Articles I and II of
the 1892 agreement makes it clear that Congress intended to
disestablish or diminish the Yankton reservation. The full text
of Article I is:
The Yankton Tribe of Dakota or Sioux Indians hereby cede,
sell, relinquish, and convey to the United States all
their claim, right, title, and interest in and to all the
unallotted lands within the limits of the reservation as
set apart to said Indians [in the Treaty of 1858].
Article II provided that the tribe was to receive $600,000 for
conveyance of the land.(11) The state argues that the Supreme Court
has construed similar language as indicating congressional intent
to diminish or disestablish reservations. DeCoteau,
420 U.S. at
445
.
The tribe responds that the cession language in Article I
alone is not controlling. It says that the savings clause in
Article XVIII must be considered together with Articles I and II
and that the negotiation and legislative histories show that the
first two articles were not intended to reduce the size of the
reservation.
This court reviewed almost identical language to that in
Article I in United States v. Grey Bear, 828 F.2d 1286 (8th Cir.
1987), vacated in part on other grounds on rehearing en banc, 863
F.2d 572 (8th Cir. 1988), cert. denied,
493 U.S. 1047
(1990). In
that case the Indians had agreed they would "for the consideration
hereinafter named, . . . hereby cede, surrender, grant, and convey
to the United States all their claim, right, title, and interest"
in their unallotted lands. Id. at 1290. The court concluded thatthe reservation had not been diminished because the agreement,
"standing alone, does not evince a clear congressional intent to
disestablish the Devils Lake Reservation." Id. In reaching this
conclusion, the court followed the Supreme Court's practice of
looking at a number of factors other than cession language to
consider disestablishment issues, including surrounding
circumstances such as whether there was a lump sum payment or
express acknowledgement by the tribe that its reservation would be
diminished. Id. at 1290 n.5.
The state argues that the $600,000 sale price in Article II,
in conjunction with the "cede, sell, relinquish, and convey"
language in Article I, gives rise to "an almost insurmountable
presumption" that Congress intended to diminish the reservation.
Solem,
465 U.S. at 470
-71. The tribe asserts that the history
behind Article II suggests that the payment provision in this
statute did not indicate intent to diminish the reservation.
Article II passed in the Senate without modification, but the
House of Representatives amended the agreement to provide for
payment to the tribe only as portions of the unallotted lands were
sold to settlers. 53 Cong. Rec. 8268 (1894). Some believed it
inappropriate for the government to make large cash payments when
there was no guarantee that all land would be sold. Id. The House
later withdrew its amendment apparently to avoid any charge of bad
faith for changing the agreed terms. See id. at 8268-71. There
was no discussion showing any understanding that a sum certain
payment would express an intent that the reservation be diminished.
The commission negotiations indicated that both sides had been
interested in seeing that unallotted lands were appraised and sold
as individual plots to settlers. Tribal members believed they
would receive a higher price if the lands were sold in this manner
rather than as a whole to the government. See, e.g., Negotiations
at 77. The instructions to the commission from the Commissioner ofIndian Affairs, dated July 27, 1892, stated in part: "It is
understood that some of these lands are very valuable and will be
eagerly sought after. It is therefore suggested the agreement
provide for their appraisement and sale to the highest bidder."
The Yankton commissioners apparently believed, however, that the
tribe would receive more money from a single sale directly to the
government so they adopted the approach taken in Article II. See,
e.g., S. Exec. Doc. No 27, 53d Cong., 2d Sess. at 68 (1894)
("Negotiations").
Although a lump sum payment can in some circumstances indicate
(11) Article II read:
In consideration for the lands ceded, sold, relinquished,
and conveyed to the United States as aforesaid, the
United States stipulates and agrees to pay to the said
Yankton tribe of Sioux Indians the sum of six hundred
thousand dollars ($600,000) as hereinbefore provided for.
The act also provided for a twenty dollar gold piece for each male
adult member of the tribe, payment of monies due some tribal
members for services as Army scouts in the 1860s, and various other
forms of support.
congressional intent to diminish a reservation, see, e.g.,
DeCoteau,
420 U.S. at 447
-448, the record in this case does not
support that conclusion. The commission's instructions, the stated
desires of the Indians, and the House debate all show that a sum
certain price was included for reasons other than issues of
jurisdiction and sovereignty.
In their briefs the signatories to the 1892 agreement state
that Article XVIII has the strongest savings clause of any
unallotted land sale agreement between a tribe and the government.
It states:
Nothing in this agreement shall be construed to abrogate
the treaty of April 19th, 1858, between the Yankton tribe
of Sioux Indians and the United States. And after the
signing of this agreement, and its ratification by
Congress, all provisions of the said treaty of April
19th, 1858, shall be in full force and effect, the same
as though this agreement had not been made, and the said
Yankton Indians shall continue to receive their annuities
under the said treaty of April 19th, 1858.
A number of savings clauses in other agreements also state
that earlier agreements and treaties will "be in full force and
effect," but none include such a strong phrase as "the same as
though this agreement had not been made," and most include language
explaining that prior treaties will remain in force so long as theyare "not inconsistent" with the later agreement. See, e.g., Oregon
Dept. of Fish and Wildlife v. Klamath Indian Tribe,
473 U.S. 753,
760-61
(1985) ("nothing in this agreement shall be construed to
deprive [the tribe] of any benefits to which they are entitled
under existing treaties not inconsistent with the provisions of
this agreement."); Rosebud Sioux Tribe v. Kneip,
430 U.S. 584, 623
(1977) (Marshall, J., dissenting) (benefits of existing treaties
and agreements continue unless "inconsistent with the provisions of
this agreement."); United States v. Southern Ute Tribe or Band of
Indians,
402 U.S. 159, 162
(1971) (all treaty provisions "not
altered by this agreement shall continue in force"); Dick v. United
States,
208 U.S. 340, 352
(1908) (treaty provisions "not
inconsistent with the provisions of this agreement are hereby
continued in full force and effect").
Article XVIII contains no similar limitation. It does not
state that only consistent aspects of the earlier treaty are to
continue. It states simply that the provisions of the 1858 treaty
are to remain in effect regardless of the contents of the
agreement, "as though this agreement had never been made."
The rules of statutory construction require that all clauses
of an agreement be read together in a way that will make them
consistent and give all parts force. Colautti v. Franklin,
439
U.S. 379, 392
(1979). Article XVIII should be read together with
the other sections of the 1892 agreement to see whether all parts
can be interpreted consistently, and the unusually expansive
language of Article XVIII suggests that other sections should be
read narrowly to minimize any conflict with the 1858 treaty.
The state does not dispute the strength of the language of
Article XVIII, but argues that the savings clause in this case was
meant only to reassure the tribe that it would continue to receiveannuities under the 1858 treaty.(12) Interpreting Article XVIII to
cover more than annuities would render the 1892 agreement largely
meaningless, it says. The treaty of 1858 required the United
States to "protect the said Yanctons [sic] in the quiet and
peaceable possession of the said tract of four hundred thousand
acres of land so reserved for their future home." If their
possession were intended to continue "in full force and effect"
(12)The state believes that clauses such as Article XVIII should
not play any role in the statutory analysis because the Rosebud
majority did not discuss them. There may be various reasons why
they were not discussed, but the Rosebud clauses were significantly
weaker than the Yankton savings clause. For example, one
representative provision read:
Each Act states, in almost identical terms, that "nothing
in this 'agreement shall be construed to deprive
the... Indians of the Rosebud Reservation, South
Dakota, of any benefits to which they are entitled under
existing treaties or agreements, not inconsistent with
the provisions of this agreement.'"
430 U.S. at 623
(Marshall, J., dissenting). Not only do the
Rosebud provisions contain the "not inconsistent" language absent
in Article XVIII, but they also focus on benefits rather than "all
provisions" of a specific treaty.
Savings clauses were noted in other Supreme Court cases but
not explicitly considered. See Klamath,
473 U.S. 753
; Chippewa
Indians of Minnesota v. United States,
301 U.S. 358
(1937);
Shoshone Tribe of Indians v. United States,
299 U.S. 476
(1937).
after the 1892 agreement, sale of the unallotted lands would
conflict with that intent by terminating the possessory rights of
Indians. Article XVIII should therefore be read as covering only
annuities.
The record shows that the tribe had been concerned about its
annuities during the negotiations, but many concerns of a more
general nature were also expressed. One of these concerns was the
failure of the United States to uphold its obligations under past
treaties. See, e.g., Negotiations at 55, 57-58.
Article XVIII is written in broad language, stating in the
first sentence that nothing in the agreement "shall be construed to
abrogate" the 1858 treaty and in the second sentence that "all
provisions" of that treaty shall continue "in full force and
effect." Only the second independent clause of the second sentence
mentions annuities. The interpretation proposed by the state would
give effect to only one of the independent clauses in one of the
sentences. Other agreements specifically protected Indian
annuities, but they did not use broad language apparently
encompassing all treaty provisions.(13) These other examples show
Congress knew how to limit the reach of an annuities provision, but
it did not enact that type of limited provision in Article XVIII.
Giving effect to the plain language and all parts of the article
leads to the conclusion that it covers more than annuities.
It is possible to give meaning to all sections of the 1894
statute by examining them to see if they can be fairly reconciled,
as the Supreme Court has directed. Colautti,
439 U.S. at 392
. The
key question in interpreting the 1894 statute and agreement is
whether Congress intended that the tribe's governmental authority
be transferred with the land sale. Amicus United States argues
that the 1858 treaty gave the tribe governmental authority within
the treaty boundaries and that Article XVIII requires that the
agreement be read to preserve that right. Although the cession
language in Articles I and II could be viewed as describing a
transfer of tribal governmental authority as well as land, thereby
changing the 1858 treaty boundaries, the narrower reading is that
the 1894 act simply authorized the conveyance of real property.
The Supreme Court has found the sale of lands to homesteaders not
inconsistent with the preservation of existing reservation
boundaries. Rosebud,
430 U.S. at 586
. The Yankton treaty of 1858acknowledged the authority of the tribe over the reservation, and
Article XVIII of the 1894 statute indicated that as much of that
treaty as possible was to be preserved. The narrower reading of
Articles I and II gives consistent meaning to Article XVIII and the
agreement as a whole.
This court has previously given effect to a savings clause in
determining that the Fort Berthold reservation was not diminished.
City of New Town v. United States, 454 F.2d 121 (8th Cir. 1972).
The savings clause in the agreement between the Three Affiliated
Tribes and the United States read:
That nothing in this Act shall be construed to deprive
said Indians of Fort Berthold Indian Reservation of any
benefits under existing treaties or agreements not
inconsistent with the provisions of this Act.
Id. at 125. The court concluded that opening the reservation to
settlement was not inconsistent with maintaining existing
reservation boundaries. Id. (citing Seymour v. Superintendent,
368
U.S. 351
(1962)). Although the state attacks the continued
validity of New Town, it is consistent with subsequent Supreme
Court precedent. See Duncan Energy, 27 F.3d 1296-97; see also,
United States v. Standish, 3 F.3d 1207 (8th Cir. 1993). Article
XVIII should be given due weight in interpreting the Yankton
agreement just as in New Town.
(13)See, e.g., Shoshone Tribe v. United States,
299 U.S. 476, 489
(1937) ("Nothing in this agreement shall be construed to deprive
the Indians of any annuities or benefits to which they are entitled
under existing agreements or treaty stipulations.")
Articles I, II, and XVIII may be read together to give meaning
to them all, and we conclude that in combination they reveal an
intent to preserve the 1858 reservation boundaries.(14) Moreover, tothe extent there could be any ambiguity perceived in the statute,
it would have to be resolved in favor of the tribe.(15) Hagen, 114 S.
Ct. at 965.
Several other articles in the agreement also have some
relevance on the issue of congressional intent. For example,
Article VIII reserves from sale to settlers "[s]uch part of the
surplus lands hereby ceded and sold to the United States as may now
be occupied by the United States for agency, schools, and other
purposes . . . until they are no longer required for such
purposes." An almost identical clause was considered by a
unanimous Supreme Court in Solem to show that Congress foresaw
continuation of the reservation there.
465 U.S. at 474
("It is
difficult to imagine why Congress would have reserved lands forsuch purposes if it did not anticipate that the opened area would
remain part of the reservation.").(16)
South Dakota suggests that Article XVII indicates that
Congress intended to diminish the reservation. That article
provided that no liquor should be sold or given away on either the
lands ceded and sold to the United States or "upon any other lands
within or comprising the reservations of the Yankton Sioux."(17) The
district court found that this provision was included at the
insistence of the Yankton Sioux, who were concerned that white
saloons would attract tribal members "to the great injury of their
people." 890 F. Supp. at 882. The state argues, however, that the
inclusion of such a provision shows that the Indians knew that the
unallotted lands would no longer be on reservation land after the
sale. It cites Rosebud where the Supreme Court concluded that a
similar clause in an agreement gave rise to an inference thatCongress intended to diminish the Rosebud reservation in 1910.
430
U.S. at 613
. A statute passed in July 1892 had outlawed the sale
of intoxicants in Indian Country so it appeared the clause would
not be needed in 1910 if the lands still were in Indian country.
Act of July 23, 1892, 27 Stat. 260; Rosebud,
430 U.S. at 613
.
The negotiations with the Yankton tribe were conducted shortly
after the 1892 liquor act had passed, and there is no evidence that
any party was aware of it at the time the agreement was negotiated.
The Yankton agreement provided that the prohibition on liquor would
continue forever, while the agreement in Rosebud was only for
twenty-five years. The 1892 liquor statute would have ceased to
apply if the Yankton reservation were eliminated at some future
point, but the liquor provision the tribe insisted on would remain.
Article XVII in the Yankton agreement is therefore not surplusage
in the same manner as the liquor provision in Rosebud and is not
inconsistent with an intent to preserve the 1858 boundaries. The
presence of a similar alcohol clause was found not to demonstrate
an intent to diminish in New Town. 454 F.2d at 127.
The state argues that one other provision in the statute
ratifying the 1892 agreement supports a finding that the
reservation was diminished. Congress added the provision that "the
sixteenth and thirty-sixth section in each Congressional
township . . . shall be reserved for common-school purposes and be
subject to the laws of the State of South Dakota." Similar
language in the Rosebud agreement was interpreted as having been
intended to conform to the enabling act which admitted North and
South Dakota to the United States. 25 Stat. 679 (1889). Under
that act, the sixteenth and thirty-sixth sections in each township
were granted to the state for common schools, but permanent federal
reservations were excepted. Id.; Rosebud,
430 U.S. at 599
-600.
The Supreme Court reasoned that by using the same provision in the
Rosebud surplus land act as was used in the statehood act, Congress
indicated its intent to diminish the Rosebud reservation. Id. at600-01. South Dakota argues that the same reasoning should be
(14)The Supreme Court has suggested that the jurisdictional
pattern that results from a conclusion of diminishment or
disestablishment may also be used to indicate what Congress had in
mind. Where there is a "checkerboard pattern" of Indian trust land
scattered over an area and a finding of disestablishment would
terminate the entire reservation, it is less likely that Congress
intended to change the boundaries. Rosebud,
430 U.S. at 598
n.20.
Checkerboard jurisdictional arrangements are generally disfavoredby both Congress and the courts. See Moe v. Confederated Salish
and Kootenai Tribes,
425 U.S. 463, 478
(1976); Seymour,
368 U.S. at
358
; United States v. Long Elk, 565 F.2d 1032, 1039 (8th Cir.
1977).
A checkerboard pattern of jurisdiction would have been the
result if the Yankton reservation had been diminished by the 1894
act. The Yankton Sioux retained the majority of the land within
the 1858 boundaries (more than was retained by the Cheyenne River
Sioux on their undiminished reservation). Solem,
465 U.S. at 464
,
466 n.6. These facts distinguish this case from DeCoteau where
Congress must have known it was creating an area composed mostly of
non-Indian settlers.
420 U.S. at 435
n.16.
(15)The preamble to the 1892 agreement contains language that may
be relevant to ascertain congressional intent. The entire
agreement, including the preamble, was incorporated into the
ratifying statute in 1894. The preamble stated that the Yankton
tribe was "willing to dispose of a portion of the land set apart
and reserved to said tribe." The Supreme Court has concluded that
the phrase "sell and dispose" indicates congressional intent to
maintain existing reservation boundaries. Solem,
465 U.S. at
472
-474; see also Duncan Energy Co. v. Three Affiliated Tribes, 27
F.3d 1294, 1297 (8th Cir. 1994), cert. denied, 115S.Ct.779
(1995). Where there is a potential conflict between sections of
the statute, the preamble can be used to understand the intent of
Congress. Jurgensen v. Fairfax County, 745 F.2d 868, 885 (4th Cir.
1984).
(16)Article VIII also appears to refute the argument that
diminishment is indicated by the failure of the agreement to
reserve land for the tribe's use. Evidence at trial indicated that
the tribe had expected government of the reservation to continue
through the Greenwood agency so no land needed to be reserved for
that purpose. The reservation of agency land in Article VIII is
consistent with an expectation on the part of the tribe that the
reservation would continue as before. As in Solem, the United
States has continued to hold lands in trust for the Yankton Sioux,
and the day that federal services to the Yankton Sioux would be
unnecessary has not yet come.
(17)The full text of the article reads:
No intoxicating liquors nor other intoxicants shall ever
be sold or given away upon any of the lands by this
agreement ceded and sold to the United States, nor upon
any other lands within or comprising the reservations of
the Yankton Sioux or Dakota Indians as described in the
treaty between the said Indians and the United States,
date April 19th, 1858, and as afterwards surveyed and set
off to the said Indians. The penalty for the violation
of this provision shall be such as Congress may prescribe
in the act ratifying this agreement.
applied here.
The rationale from Rosebud has considerably less force in this
case, however, because the 1894 Yankton act makes the common school
sections "subject to the laws of the State of South Dakota." If
Congress had intended to diminish the Yankton reservation, those
common school sections would have been subject to the laws of the
state in any event and the grant of jurisdiction would have been
unnecessary. The language is at least equally consistent with a
reading that Congress wished to insure that the infrastructure
would exist for common schools for all future residents of the
assimilated area.
South Dakota argues that analysis of the statute and the
agreement is unnecessary because certain federal and state cases
should control the result here. Whether the Yankton reservation
was diminished or disestablished has never been squarely litigated
and decided in federal court, however.(18) The South Dakota caseswere criminal prosecutions in which the tribe was not involved and
do not show full development of the issues or the analytical
approach required by the United States Supreme Court.(19) See Solem,
465 U.S. at 470
. Moreover, the Supreme Court has indicated that
federal courts are not necessarily bound by earlier state court
conclusions about disestablishment issues.(20)
We conclude after examining the statutory language that
Congress did not express in the 1894 act an intent to diminish or
disestablish the reservation. Also relevant in the required
analysis is review of the legislative history and the events near
the time of its passage, Hagen, 114 S. Ct. at 965, and we turn now
to this review.
B.
South Dakota contends that the legislative history indicatesthat the unallotted lands on the Yankton reservation were restored
to the public domain and that this shows Congress intended to
diminish the reservation. While "the existence of [public domain]
language in the operative section of a surplus land Act indicates
that the Act diminished the reservation," Hagen, 114 S. Ct. at
67, there is no mention of restoring the land to the "public
domain" in the 1894 act or the 1892 agreement. South Dakota claims
that even though there is no public domain language in the act
itself, comments on the House floor about returning reservation
lands to the public domain suggest an intent to diminish the
Yankton reservation. The tribe responds that the debate was
inconclusive at best.
Comments in Congress can be evidence of an intent to diminish,
see DeCoteau,
420 U.S. at 446
, but the legislative history does not
demonstrate such an intent here. Several surplus land sales were
included in a single Indian appropriations bill in 1894, including
land purchases from the Yankton Sioux, Nez Perce, Yuma, Alsea-
Siletz, Coeur d'Alene, and Yakima reservations. 26 Stat. 286
(1894). South Dakota points to two instances where representatives
mentioned the public domain. One stated that the various
provisions in the agreements "change the methods of disposing of
the lands that will become part of the public domain . . . ." 53
Cong. Rec. 6425 (1895). A second commented that the unallotted
lands opened by the various agreements "are not governed by the
public land laws until they become segregated from the Indian lands
and become in fact a part of our public domain." Id. at 6426.
Both comments were made in the context of a debate about whether
the lands were to be furnished to settlers at no cost under the
Homestead Act.
The comments cited by the state were made in reference to a
group of agreements with some half dozen tribes. The different
(18)The state claims that the Supreme Court established in Perrin
v. United States,
232 U.S. 478
(1914), that the reservation was
diminished by the 1894 act. In Perrin the Court concluded that
Congress had authority to criminalize liquor sales on lands ceded
by tribes and upheld a conviction for sales made within the 1858
Yankton treaty boundaries. The argument of the United States in
Perrin focused on the plenary authority of Congress with regard to
Indians and on the perpetual nature of the liquor ban; it did not
claim that the town where Perrin sold liquor was still on
reservation land. There was no discussion of diminishment.
In Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980), cert.
denied, 451U.S.941 (1981), an Indian arrested in Wagner, South
Dakota, which is within the 1858 boundaries, was convicted in state
court and claimed he was entitled to habeas relief because his
crime was committed in Indian Country. Diminishment was not
litigated, and the court specifically noted that neither party
raised the issue. Id. at 213 n.2.
In Yankton Sioux Tribe v. United States, 623 F.2d 159 (Ct. Cl.
1980), the Yankton tribe sought and received an award from theUnited States because, among other things, the $600,000 price fixed
by the 1892 agreement was alleged to have been unconscionably low.
The focus of the case was on the fair market value of the
unallotted lands sold by the tribe, and comments the court made
related to diminishment were dicta.
(19)The South Dakota Supreme Court has concluded that the Yankton
reservation was diminished by the 1894 act, see State v. Thompson,
355 N.W.2d 349 (S.D. 1984); State v. Williamson, 211 N.W.2d 182
(S.D. 1973); Wood v. Jameson, 130 N.W.2d 95 (S.D. 1964), but it
appears that the issues regarding diminishment were not fully
presented to the court. The cases do not address the legislative
history or the surrounding circumstances of the 1894 act or the
savings clause in Article XVIII. They rely almost exclusively on
the language of Articles I and II.
(20)The United States Supreme Court granted certiorari after an
Eighth Circuit decision, Bartlett v. Solem, 691 F.2d 420 (1984),
concluded that the Cheyenne River Reservation had not been
diminished. Bartlett was in conflict with two South Dakota Supreme
Court cases (State v. Janis, 317 N.W.2d 133 (S.D.1982); Stankey v.
Waddell, 256 N.W.2d 117 (S.D.1977)). The Court affirmed the Eighth
Circuit decision in Solem.
465 U.S. at 466
.
agreements were all included in one appropriations bill, butCongress used varying enacting sections for each.(21) For example,
two of the six mentioned the public domain in the enacting section.
Another explicitly referred to the fact that a new boundary would
have to be drawn. Floor comments about multiple agreements which
differ in their distinctive language and negotiation histories are
of less value in evaluating congressional intent about any
individual agreement than comments dedicated to that agreement
alone.
The history of the commission to the Yankton Sioux and its
negotiations with the tribe also suggests that Congress did not
intend to disestablish the reservation. The commission was
instructed: "If [the Yankton Sioux] are unwilling to cede all the
surplus land you will endeavor to obtain the relinquishment of such
part thereof as they may be willing to part with."(22) These
instructions are consistent with the mission to secure land for
settlement and to expose the tribe to settlers. Had the intent
been the elimination of the reservation, it would have been
necessary that all surplus lands be purchased.
The state points to a number of passages from the negotiations
between the commission and the tribe which it believes show that
the reservation would be disestablished, but the statements are
consistent with a simple sale of the surplus lands and do not
necessarily imply a transfer of sovereignty. For example, one of
the commissioners said to tribal members:
This reservation alone proclaims the old times and the
old conditions. But even here the means of your former
mode of life have vanquished [sic]. The tide of
civilization is as resistless as the tide of the ocean,
and you have no choice but to accept it and live
according to its methods or be destroyed of it. To
accept it requires the sale of these surplus lands and
the opening of this reservation to white settlement.
Negotiations at 81. The commissioner talks of a "sale" of surplus
lands and the "opening of this reservation," but makes no mention
of reduction or elimination of boundaries or any surrender of
jurisdiction.
In another passage relied on by the state, a commissioner
stated:
The Great Father desires and seeks in this transaction
the benefit of the tribe, and what you may receive in
this matter will be for this tribe alone, to help elevate
you to citizenship, and as soon as you become the equals
and assistants of the white man in making the laws, to be
near him and learn his ways, you will learn to farm, to
do all kinds of business, to be citizens in the true
sense of the word. It might be, after you have sold your
lands, you could have this reservation organized as a
separate county. If this could be done -- I do not say
it can -- you could govern your own people in your own
way, so long as you obeyed the laws of the State.
Negotiations at 48. This passage shows that possible future state
jurisdiction over the Indians was contemplated, but it does not
indicate when any such jurisdiction would attach and under what
circumstances. The passage clearly appears to envision continuity
of the reservation, with the possibility it could be transformed
into a county at some later date.
The tribe argues that these comments are very weak when
compared to statements made by, or to the Indians, in cases where
diminishment was found. In Rosebud, for example, the tribe was
(21)At least one of the reservations under discussion has been found
not to have been diminished. Ute Indian Tribe v. State of Utah,
773 F.2d 1087, 1090-93 (10th Cir. 1985) (en banc), cert. denied,
479U.S.994 (1986). The Tenth Circuit concluded that the
"surrounding events concerning the 1894 and 1897 Acts are
ambiguous." Id. at 1093.
(22)The October 11, 1995 motion of South Dakota to enlarge the
record with the instructions from the Commissioner of Indian
Affairs to the Yankton commission is granted.
specifically told that "[t]he cession of Gregory county . . . will
leave your reservation a compact, and almost square tract, and
would leave your reservation about the size and area of Pine RidgeReservation."
430 U.S. at 593
. In Hagen, the tribe was informed:
You say that [the reservation boundary] line is very
heavy and that the reservation is nailed down upon the
border. That is very true as applying to the past many
years and up to now, but congress has provided
legislation which will pull up the nails which hold down
that line and after next year there will be no boundary
line to this reservation.
Hagen, 114 S. Ct. at 968 (internal citations omitted). In
DeCoteau, a spokesman for the tribe stated:
Now that South Dakota has come in as a state we have some
one to go to, to right our wrongs. The Indians have
taken their land in severalty. They are waiting for
patents. The Indians are anxious to get patents. We are
willing the surplus land should be sold. We don't expect
to keep reservation." [sic]
DeCoteau,
420 U.S. at 433
. The Indians on these three reservations
were thus clearly aware that their reservations would be smaller
after the sale of lands. Neither the commissioners nor the tribal
members made like comments in this case.
The negotiations between the Yankton Indians and the
commissioners sent to secure the sale of unallotted lands do not
support a finding of diminishment. Despite a long series of
negotiations, most of which were recorded and included in the
commission's report to Congress, there is no statement that clearly
indicates that Congress intended to change the reservation
boundaries or remove tribal sovereignty over the opened areas.
There are also no statements by members of the tribe that
demonstrate an understanding that the reservation boundaries would
change.
In addition to the history of the negotiations and the
legislation, there is other evidence to examine which might
indicate the contemporary understanding of the 1894 act. The tribe
believes the most significant piece of contemporary evidence is in
an 1896 statute passed by Congress. The statute began: "Be itenacted . . . [t]hat all settlers who made settlement under the
homestead laws upon lands in the Yankton Indian Reservation, in the
State of South Dakota, during the year eighteen hundred and ninety-
five are hereby granted leave of absence from such homestead for
one year . . . ." 29 Stat. 16 (Feb. 26, 1896) (emphasis added).
Section 3 of the statute extends "the time for making final proof
and payment for all lands located under the homestead laws of the
United States upon any lands of any former Indian reservation in
the State of South Dakota . . . ." Id. (emphasis added).
Congress thus continued in 1896 to refer to the unallotted
lands as being in the Yankton reservation, a year after President
Cleveland had opened the reservation lands for settlement. South
Dakota argues that the 1896 statutory reference is entitled to
little weight because the Commissioner of Indian Affairs used the
word "former" in a document included in the legislative history.
In the statute itself, however, Congress used "former" in section
3 when referring to a number of unspecified reservations in South
Dakota, but not when referring to the Yankton reservation in
section 1.
The state argues that other contemporaneous evidence indicates
that the reservation was diminished. For example, it points to
several statements by the Commissioner of Indian Affairs as being
particularly relevant. Shortly after passage of the 1894 act, the
commissioner stated that the Yankton agreement in 1892 and two
others would result in a significant amount of land being "restored
to the public domain." Annual Report of the Commissioner of Indian
Affairs 26 (1894). Two years later the commissioner referred to
the "former" Yankton reservation. H.R.Rep. No. 100, 54th Cong.,
1st Sess. at 2 (1896). These appear to be isolated references,
however. The tribe's Yankton Sioux history expert testimony at
trial was unrefuted that in the many thousands of documents he had
read regarding the reservation, references to the former
reservation or lands originally within the reservation wereinfrequent.
South Dakota also states that it began exercising jurisdiction
over the areas no longer held in trust by the United States shortly
after the lands were opened. An 1895 criminal case, State v.
Andrew War, First Judicial Circuit Court, Charles Mix County,
supports this claim, as do several other cases cited by the state.
The exercise of jurisdiction by a state over opened lands can be an
indication of congressional intent, but it is not dispositive. See
Solem,
465 U.S. at 472
.
Some other evidence is simply inconclusive. Both sides
introduced a number of maps, many of them from within several years
of the opening of the lands. These maps ultimately prove little
except that there was some confusion both inside and outside the
government as to the status of the reservation. The General Land
Office of the Department of the Interior showed the reservation
with only a dotted line on a 1901 map. The legend did not specify
what a dotted line meant, but it is not the demarcation shown for
a reservation. On the other hand the Bureau of Indian Affairs,
also in the Interior Department, continued to show the outline of
the reservation on its maps. The type of outline used was
identified in the legend to signify an Indian reservation, but the
Yankton reservation was left unshaded while some other reservations
were shaded. Study of the pattern of shading on these maps
suggests that reservations opened to settlement were left unshaded.
Because of these conflicting treatments and because an opened
reservation is not necessarily diminished, these and similar maps
are not particularly helpful.
Commercial maps have also differed. For example, The Atlas of
Charles Mix County, South Dakota, published in 1906, does not
appear to show the reservation. Exh. 631. A very detailed map of
South Dakota in one 1895 atlas does show it. Rand McNally World
Atlas 277 (1895). The confusion is perhaps best exemplified byAndrees' Hand Atlas, published in Germany. In both the 1899 and
1904 editions of the German atlas, a map of the United States shows
the reservation (pages 160-61 in both editions), while a regional
map on the next plate does not (pages 162-63).
These examples of confusion about the status of the lands are
not enough to show that Congress expressly intended to diminish the
reservation, and the 1896 statute is more probative of
congressional intent than this more attenuated evidence. The
statute is a statement by Congress itself and should guide the
appraisal of the contemporaneous evidence. It suggests that
Congress did not intend to diminish the Yankton reservation.
IV.
A.
The pattern throughout the twentieth century is similar to the
contemporaneous evidence. Congress has continued to refer to the
reservation as a continuing entity, but the treatment by other
governmental bodies is mixed. Although less persuasive than
evidence from the time surrounding an act's passage, later evidence
is still relevant. Hagen, 114 S. Ct. at 965.
Congress has repeatedly referred to the Yankton Reservation as
ongoing. In 1920, for example, Congress provided "[t]hat the
Secretary of the Interior be . . . authorized and directed to
convey to the trustees of the Yankton Agency Presbyterian Church,
by patent in fee, the following-described premises situate [sic]
within the Yankton Indian Reservation, county of Charles Mix, State
of South Dakota." 41 Stat. 1468 (1920) (emphasis added). In 1932,
Congress divided the United States District Court for the District
of South Dakota into four divisions. "The territory embraced . . .
in the counties of Aurora, Beadle, . . . Charles Mix, . . .
Yankton, and in the Yankton Indian Reservation, shall constitutethe southern division of said district." 47 Stat. 300 (1932)
(emphasis added). More recently, a water project approved by
Congress will "irrigate not more than approximately three thousand
acres of Indian-owned land in the Yankton-Sioux Indian
Reservation . . . ." Reclamation Projects Authorization and
Adjustment Act of 1992, Pub. L. No. 102-575 SS 2005(b) (1992)
(emphasis added).
The state has not directed the court to a single enactment of
Congress in which a reference was made to indicate the reservation
had been diminished. The statutory references demonstrate that
Congress believes the Yankton reservation continues to exist.
The executive branch has been less consistent, but there is
considerable evidence from it in support of an undiminished
reservation. In its brief the tribe points to testimony before
Congress by the superintendent of the Yankton Agency in 1914 that
the reservation was "[a]bout 26 by 35 or 36 miles," the area
encompassed by the 1858 boundaries. In 1916, President Woodrow
Wilson ordered "that the trust period on the allotments of Indians
on the Yankton Sioux Reservation, South Dakota, which expires
during the calendar years 1916 and 1919, be, and is hereby,
extended for a period of ten years from dates of expiration, with
the exception of the following . . . ." (Exec. Order April 20,
1916).
Perhaps the foremost authority on federal Indian law, Felix
Cohen wrote an opinion in 1941 while he was Acting Solicitor of the
Department of the Interior that concluded the reservation was
intact. It read in part:
The circumstances which influenced the Indian Office
decision [that the reservation had been diminished] are
the large amount of reservation land which has been fee
patented and the existence of towns within the
reservation. These circumstances may be persuasive in
reaching an administrative conclusion, but I cannot agree with the conclusion as a matter of law.
The agreement of 1892 provided for the sale of such
lands within the reservation as were not allotted or used
for designated purposes. It did not provide for the sale
of a particular designated part of the reservation. The
act should be distinguished from other cession acts which
ceded a definite part of the reservation and treated the
remaining area as a diminished reservation. The lands
allotted on the Yankton Reservation were scattered over
all the reservation. . . . Since the 1892 agreement
there has been no redefinition by Congress of the Yankton
Reservation nor determination that the reservation no
longer exists. On the contrary, the reservation was
referred to as a still existing unit in the acts of April
29, 1920 (41 Stat. 1468) and June 11, 1932 (47 Stat.
300).
Letter of August 7, 1941, Opinions of the Solicitor, Department of
the Interior 1063 (1979).
Others within the executive branch have taken varying
positions. In 1969 an Associate Solicitor wrote that "the effect
of the 1894 Act was to eliminate reservation boundaries and
terminate the tribe's authority to establish a tribal court."
Memorandum M-36783 from Associate Solicitor, Indian Affairs, to
Commissioner of Indian Affairs, 1 (September 10, 1969).(23) An
employee of the Bureau of Indian Affairs in its Aberdeen, South
Dakota office testified at trial that his office considers the 1858
boundaries to be intact, and the 1990 census includes figures for
the "Yankton Reservation" as defined by the 1858 boundaries. See,
e.g., Bureau of the Census, U.S. Dep't of Commerce, Pub. No. 1990
CPH-1-43, Summary Population and Housing Characteristics -- South
Dakota 175 (1991). The United States as amicus in this case (and
also a party to the treaty of 1858 and the 1892 agreement) argues
that "the 1892 Agreement, as ratified by Congress, did not diminish
or disestablish the exterior boundaries of the Yankton SiouxReservation."
The state government has quite consistently exercised various
forms of governmental authority over the opened lands on the
Yankton reservation. State courts have exercised criminal
jurisdiction over Indians on nontrust lands without objection from
the tribe until recently. See, e.g., supra note 19. The state has
also exercised some civil jurisdiction, at least over divorces
between tribal members. See, e.g., Redbird v. Redbird, First
Judicial Circuit Court, Charles Mix County (1916). The state has
also played a significant regulatory role in mining, underground
storage tanks, agriculture, air emissions, solid and hazardous
waste, and other environmental activities in the area. The county
and municipalities employ law enforcement personnel and maintain
over 500 miles of roads within the 1858 boundaries, while the
Bureau of Indian Affairs maintains only 20 miles of roads.
The state's treatment of the reservation has not been uniform,
however. Ronald Catlin, a state witness and an employee of the
South Dakota Department of Game, Fish, and Parks recalled seeing a
memorandum instructing state employees how to refer to the
reservation. Catlin remembered that the memo was written by
Governor William Janklow sometime between 1978 and 1986 and
directed employees to refer only to the "former Yankton Sioux
Reservation." A reasonable inference to be drawn is that at least
some state employees had been referring to the reservation as if it
still existed.
The state argues that the tribe itself has not asserted
jurisdiction over the opened areas and that some documents indicate
that tribal members believed that the reservation boundaries had
been reduced. The tribe's 1932 constitution was silent on the
issue of jurisdiction, but the amended 1962 constitution claimed
jurisdiction over "all original Tribal lands now owned by the Tribe
under the Treaty of 1858." The tribe presented no evidence that ithas attempted until recently to exercise civil, regulatory, or
criminal jurisdiction over nontrust lands. Undisputed evidence at
trial indicated that the tribe's effectiveness at self-government
has also varied considerably over time.
Modern maps and atlases seem to show the reservation as
extending to the 1858 boundaries. See U.S. Department of Commerce,
1990 Census of Population: Social and Economic Characteristics,
South Dakota G-6 (1993); U.S. Department of the Interior Bureau of
Indian Affairs, Indian Land Areas (General) [map] (1987); National
Geographic Historical Atlas of the United States, 47 (Centennial
Edition 1988) (see also, loose map entitled "Northern Plains"
included with the atlas); Waldman & Braun, Atlas of the North
American Indian 196-97 (Facts on File Publications 1985).
(23)The parties introduced scores of documents to show how the
reservation has been treated. Only representative samples are
discussed here; others were addressed in the district court's
opinion.
Considering all of the evidence submitted by the parties and
amici regarding the subsequent history of the reservation, we
cannot say that the surrounding circumstances are "fully consistent
with an intent to terminate the reservation, and inconsistent with
any other purpose." See DeCoteau,
420 U.S. at 448
.
B.
South Dakota argues that "[t]he Supreme Court has decreed that
even in a case where de jure diminishment may not have occurred,
'de facto' diminishment may nonetheless have occurred." The tribe
and the United States respond that de facto diminishment has never
been applied in the absence of congressional intent to diminish.
Solem contains the Supreme Court's most complete discussion of
de facto diminishment. It recognized there that:
who actually moved onto opened reservation lands is also
relevant to deciding whether a surplus land act
diminished a reservation. Where non-Indian settlers
flooded into the opened portion of a reservation and the
area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment
may have occurred.
Solem,
465 U.S. at 471
. South Dakota argues that this permits a
finding of diminishment even in the absence of congressional
intent.
The Court in Solem cautioned, however, that subsequent
demographic data are only "one additional clue as to what Congress
expected would happen once land on a particular reservation was
opened to non-Indian settlers." Id. at 471-72.
When both an Act and its legislative history fail to
provide substantial and compelling evidence of a
congressional intention to diminish Indian lands, we are
bound by our traditional solicitude for the Indian tribes
to rule that diminishment did not take place and that the
old reservation boundaries survived the opening.
Id. at 472. Subsequent demographic data and jurisdictional history
regarding the opened lands may therefore be useful evidence of
congressional intent, but cannot substitute for it.
The demographic facts related to the Yankton reservation are
somewhat incomplete. Between 1890 and 1900, the population of
Charles Mix County doubled, but it is not clear from the census
data how many of those people settled on the open lands within the
1858 boundaries.(24) Of the 8,498 persons in the county in 1900,
1,483 were Indians. Assuming that people were distributed evenly
throughout the county (which is not clear from the record), roughly
4,000 people would have lived within the 1858 boundaries. The
Indian population would have made up about 40 percent of the
reservation. Demographic shifts that happen soon after an act is passed
would appear to be stronger evidence of congressional intent than
later population changes because those closer in time might have
been better anticipated by Congress. The contemporaneous evidence
suggests that the area did not lose its "Indian character," see
Solem,
465 U.S. at 471
, because more than 53 percent of the land
was allotted to tribal members who composed at least 40 percent of
the population. After 1900 the Indian population apparently
declined somewhat. Southern Missouri, 890 F. Supp. at 887.
There is some dispute in the record about precisely how many
Yankton Sioux now live within the 1858 boundaries. According to
(24)There is an additional source of uncertainty in these data.
South Dakota points out that the Census Bureau did not provide a
separate category for the Yankton reservation in the 1900 census.
It is therefore possible that almost half of the increase in
population during this decade can be attributed to adding the
Yankton Sioux population in with the non-Indians.
the 1990 census, there were 1,994 American Indians and 4,275 non-
Indians living on the "Yankton Reservation," which the Census
Bureau defined as being within the 1858 boundaries.(25) Bureau of the
Census, U.S. Dep't of Commerce, Pub. No. 1990 CP-1-43, General
Population Characteristics -- South Dakota 29 (1992). The tribe
claims that the census data do not accurately reflect the
population of the area and that some 3,400 enrolled members of the
tribe resided on the reservation as of 1993. These two sets of
figures indicate that between 32 and 44 percent of the people
within the 1858 boundaries are Indians.(26) (In contrast, the 1990
census reports that of the Indians living in Charles Mix County,
only eight live outside the 1858 treaty boundaries.) Finally, the evidence shows that the Indian population and
influence in the area is increasing quite rapidly, a trend which
appears likely to continue. The tribe opened the Fort Randall
casino in 1991 which has provided both jobs and financial resources
to tribal members and is apparently now the largest employer in
Charles Mix County. The tribe has also announced its intention to
use some of the casino proceeds to reacquire title to lands which
have passed from Indian hands since 1894. Meanwhile the non-Indian
population is decreasing.
The historical and demographic evidence does not show that
Congress intended to change the 1858 boundaries. Only Congress can
reduce or eliminate a reservation, see, e.g., Solem,
465 U.S. at
470
, and it is "totally inappropriate" to rely only on de facto
diminishment to reduce the size of a reservation. Duncan Energy,
27 F.3d 1294, 1298 (8th Cir. 1994). The Yankton Sioux make up a
significant portion of the population of the treaty area, and their
numbers and economic influence are increasing. Thus, even if de
facto diminishment were possible in spite of the lack of
substantial evidence of congressional intent in the 1894 act and
its legislative history, see Solem,
465 U.S. at 472
, the record
would not support it here.
V.
In sum, application of the factors deemed relevant by the
Supreme Court leads to the conclusion that Congress intended by its
1894 act that the Yankton Sioux sell their surplus land to the
government, but not their governmental authority over it. Close
examination of the agreement, the act, and the historical record
does not reveal the "[s]ubstantial and compelling evidence of a
congressional intention to diminish Indian lands" necessary for
disestablishment or diminishment, but instead indicates the 1858
treaty boundaries were to be preserved. Solem,
465 U.S. at 472
.
The judgment of the district court is affirmed.
MAGILL, Circuit Judge, dissenting.
I believe that the district court erred in holding that the
Yankton Sioux Reservation had not been diminished. See Yankton
Sioux Tribe v. Waste Management Dist., 890 F. Supp. 878, 879
(D.S.D. 1995). The August 15, 1894 Act opening the Yankton Sioux
Reservation to white settlement, an Act fulfilling treaty
stipulations with and support of indian tribes, Ch. 290, 28 Stat.
314 (1894) (1894 Act), which ratified the 1892 agreement between
the United States and the Yankton Sioux Tribe (1892 Agreement),
contained language of cession of land for a sum certain, which
created "an almost insurmountable presumption that Congress meant
for the tribe's reservation to be diminished." Solem v. Bartlett,
465 U.S. 463, 470-71
(1984) (citing DeCoteau v. District County
Court,
420 U.S. 425, 447-48
(1975)).(27) Because this presumption has
not been rebutted in this case, I must respectfully dissent.
I.
Although "the Congresses that passed the surplus land Acts
(25)South Dakota points out that the United States holds in trust
for Indians some 37,000 acres within the 1858 boundaries. This is
less than ten percent of the total number of acres. Property
ownership appears to be an unreliable indicator of the character of
the area, however, because census data from 1990 reveal that almost
two-thirds of the Indian households on the reservation rent their
homes.
(26)Even if the lower 32 percent figure is used for the Indian
population in the old treaty area, it is much higher than that of
the Lake Traverse Indian Reservation which the Supreme Court found
had been disestablished in DeCoteau. On that reservation, only
3,000 of 33,000, or nine percent, of the people within the original
treaty boundaries were Indians. DeCoteau,
420 U.S. at 428
.
(27)The boundaries of the Yankton Sioux Reservation were
established by a treaty between the United States and the Yankton
Sioux Tribe in 1858. See Act of April 19, 1858, 11 Stat. 743
(1858) (Treaty of 1858).
anticipated the imminent demise of the reservation and, in fact,
passed the Acts partially to facilitate the process," Solem,
465
U.S. at 468
, we may not "extrapolate from this expectation a
specific congressional purpose of diminishing reservations with the
passage of every surplus land Act." Id. at 468. Instead, "some
surplus land Acts diminished reservations," id. at 469, while
"other surplus land Acts did not." Id. The United States SupremeCourt, which has frequently addressed this issue,(28) has provided the
proper analysis for determining if diminishment has occurred:
Our analysis of surplus land Acts requires that Congress
clearly evince an intent to change boundaries before
diminishment will be found. The most probative evidence
of congressional intent is the statutory language used to
open the Indian lands. 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. When such language of cession is
buttressed by an unconditional commitment from Congress
to compensate the Indian tribe for its opened land, there
is an almost insurmountable presumption that Congress
meant for the tribe's reservation to be diminished.
Solem,
465 U.S. at 470
-71 (citations and quotations omitted,
emphasis added). In addition to creating this "almost
insurmountable presumption" of diminishment, id. at 470, specific
language of cession coupled with payment for a sum certain is an
"extreme" example of Congress's express intent to diminish a
reservation, see id. at 469 n.10, which is "precisely suited to
disestablishment" purposes. Id. at 473 n.15 (quotations omitted).
See also DeCoteau,
420 U.S. at 445
(express language of cession
combined with payment of a sum certain "was precisely suited to
this purpose" of terminating reservation).
The 1894 Act contained the following provisions:
Article I.
The Yankton tribe of Dakota or Sioux Indians hereby cede,
sell, relinquish, and convey to the United States all
their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set
apart to said Indians as aforesaid.
Article II.
In consideration for the lands ceded, sold, relinquished,
and conveyed to the United States as aforesaid, the
United States stipulates and agrees to pay to the said
Yankton tribe of Sioux Indians the sum of six hundred
thousand dollars ($600,000), as hereinbefore provided
for.
Ch. 290, 28 Stat. at 314-15 (emphasis added).
Because Articles I and II of the 1894 Act contain language of
cession of land for a sum certain, they create an almost
insurmountable presumption of diminishment. The task of this Court
is therefore to determine if the proponents of a continued
reservation status for the ceded lands have successfully rebutted
this presumption of diminishment.(29) The majority, however, never
makes this critical analysis. Indeed, the majority never
acknowledges that the presumption of diminishment exists,(30) nordoes it hold that the presumption of diminishment has somehow been
rebutted.
Rather than addressing the presumption created by Articles I
and II together, the majority considers each Article separately.
Citing to United States v. Grey Bear, 828 F.2d 1286 (8th Cir.
1987), vacated in part on other grounds on reh'g en banc, 863 F.2d
(28)In addition to Solem and DeCoteau, the Supreme Court has
considered the issue of diminishment in Hagen v. Utah, 114 S. Ct.
958 (1994), Rosebud Sioux Tribe v. Kneip,
430 U.S. 584
(1977),
Mattz v. Arnett,
412 U.S. 481
(1973), and Seymour v.
Superintendent,
368 U.S. 351
(1962). In Hagen, Rosebud, and
DeCoteau, the Court found diminishment based on an allotment-era
statute.
(29)Although the United States Supreme Court has never found that
this presumption of diminishment has been rebutted, its choice of
the phrase, "almost insurmountable presumption," Solem,
465 U.S. at
470
(emphasis added), suggests it is at least theoretically
possible, although difficult, to rebut this presumption of
diminishment. The Court has not, however, enunciated what quanta
of evidence is necessary to achieve this feat. Because an "almost
insurmountable presumption" is obviously not to be lightly
discarded, it would seem that one challenging it should have the
burden of presenting evidence which, at a minimum, clearly and
convincingly demonstrates that Congress intended to maintain tribal
governance over ceded lands despite its enactment of provisions
precisely suited to diminishment.
(30)While the majority makes two passing references to this
critical presumption, it couches each reference as a mere
restatement of the appellant's argument. See Maj. Op. at 11 ("The
state argues that the Supreme Court has construed similar language
[as that in Articles I and II] as indicating congressional intent
to diminish or disestablish reservations. DeCoteau,
420 U.S. at
445
."); id. at 12 ("The state argues that the $600,000 sale price
in Article II, in conjunction with the 'cede, sell, relinquish, andconvey' language in Article I, gives rise to 'an almost
insurmountable presumption' that Congress intended to diminish the
reservation. Solem,
465 U.S. at 470
-71."). Nowhere in its opinion
does the majority acknowledge that the appellant is correct that
this almost insurmountable presumption of diminishment was created
by Articles I and II.
572 (8th Cir. 1988), cert. denied,
493 U.S. 1047
(1990), which
construed an allotment-era statute which contained a provision
similar to Article I, the majority states that Article I's cession
language "alone is not controlling." Maj. Op. at 11. Unlike the
instant case, however, Grey Bear did not involve an allotment-era
statute which provided for a sum certain payment for ceded land.
See Grey Bear, 828 F.2d at 1290. This lack of a sum certain
payment was critical to this Court's analysis in Grey Bear, where
we stated:
The Supreme Court has held that such explicit reference
to cession suggests that Congress intended to divest the
reservation of its land. See Solem,
465 U.S. at 470
.
The Court has further held that "[w]hen such language of
cession is buttressed by an unconditional commitment from
Congress to compensate the Indian tribe for its opened
land, there is an almost insurmountable presumption that
Congress meant for the tribe's reservation to be
diminished." Id. at 470-71. We agree with the district
court's analysis that although the "cede, surrender,
grant, and convey" language of the Act suggests
congressional intent to disestablish the reservation
boundaries, see Rosebud,
430 U.S. at 597
; DeCoteau,
420
U.S. at 445
, the Act does not contain an unconditional
commitment by Congress to pay the tribe for the ceded
lands. [United States v. Grey Bear, 636 F. Supp. 1551,
1554 (D.N.D. 1986)]. Compensation for the lands was not set at any fixed price and the tribe was guaranteed
reimbursement only for the lands actually disposed of by
the government. Thus, the "almost insurmountable
presumption" of disestablishment urged by defendants is
not present in this case.
Id. at 1290 (emphasis in original). The 1894 Act does contain the
critical language of an "unconditional commitment by Congress to
pay the tribe for the ceded lands," id. (emphasis in original), and
consequently places the instant case on an entirely different
footing than Grey Bear. Rather than supporting the majority's
decision to ignore the presumption of diminishment created by
Articles I and II, therefore, Grey Bear strongly supports adhering
to United States Supreme Court precedent.
The majority similarly discards the importance of Article II
by asserting that "[a]lthough a lump sum payment can in some
circumstances indicate a congressional intent to diminish a
reservation, see, e.g., DeCoteau,
420 U.S. at 447
-48, the record in
this case does not support that conclusion." Maj. Op. at 13. The
majority fails to recognize that the language actually chosen by
Congress is the best indication of its intent. See Citicasters v.
McCaskill, 89 F.3d 1350, 1354-55 (8th Cir. 1996) (citing cases).
Rather than turning to the legislative history only to clarify an
ambiguous statute, the majority seems to suggest that the plain
meaning of a statute must be rejected unless positively supported
by its legislative history. This approach is simply not correct.
In Article II, Congress chose language "precisely suited" to
diminishment, DeCoteau,
420 U.S. at 445
, and the majority has
pointed to nothing in the legislative history that betrays a
contrary intent. See Maj. Op. at 12-13 (discussing legislative
history).
Without acknowledging the almost insurmountable presumption of
diminishment created by the interplay of Articles I and II, the
majority relies on the savings clause in Article XVIII to supportits conclusion that the reservation was not diminished by the 1894
Act.(31) Article XVIII provides:
Nothing in this agreement shall be construed to abrogate
the treaty of April 19th, 1858, between the Yankton tribe
(31)The majority indicates that "[i]n their briefs the
signatories to the 1892 agreement state that Article XVIII has the
strongest savings clause of any unallotted land sale agreement
between a tribe and the government." Maj. Op. at 13. Assuming
that this refers to the appellee and to amicus the United States,
I am at a loss as to why the majority finds the assertions of these
parties so significant; surely, the "strength" of a savings clause
is a question of law for this Court to determine, and is
independent of the parties' historical relationship to the
legislation. To the extent that Article XVIII represents an
unusual savings clause, however, I note that the United States
Supreme Court found diminishment despite similarly "strong"--if
less verbose--savings clauses in two other allotment-era statutes.
In Montana v. United States,
450 U.S. 544, 548
(1981), the Court
concluded that 22 Stat. 44 reduced a reservation to 2.3 million
acres, despite a savings clause that provided that "all the
existing provisions of May seventh, eighteen hundred and sixty-
eight, [establishing an 8,000,000 acre reservation] shall continue
in force." An Act accepting and ratifying agreement for sale of a
portion of the Crow Indians of Montana reservation, Ch. 74, 22
Stat. 42 (1882). Similarly, in DeCoteau,
420 U.S. at 446
, the
United States Supreme Court found diminishment despite a savings
clause in an allotment-era statute which provided that an earlier
treaty's provisions, which established a reservation's boundaries,
"shall continue in force." An Act making appropriations for the
current and contingent expenses of the Indian Department and for
fulfilling treaty stipulations with various Indian tribes, Ch. 543,
26 Stat. 989, 1042 (1801). Thus, while I agree that savings
clauses may have a role in our statutory interpretation, see, e.g.,
City of New Town v. United States, 454 F.2d 121, 125 (8th Cir.
1972), they should not have the talismanic significance proffered
by the majority.
of Sioux Indians and the United States. And after the
signing of this agreement, and its ratification by
Congress, all provisions of the said treaty of April
19th, 1858, shall be in full force and effect, the same
as though this agreement had not been made, and the said
Yankton Indians shall continue to receive their annuities
under the said treaty of April 19th, 1858.
Ch. 290, 28 Stat. at 318 (emphasis added). Disregarding that the
cession of land for a sum certain provided by Articles I and IIconstitute an "extreme" example of Congress's express intent to
diminish a reservation, see Solem,
465 U.S. at 469
n.10, which is
"precisely suited to disestablishment" purposes, id. at 473 n.15
(quotations omitted), the majority states that "Articles I, II, and
XVIII may be read together to give meaning to them all, and we
conclude that in combination they reveal an intent to preserve the
1858 reservation boundaries." Maj. Op. at 17 (note omitted). I
disagree.
Based on the language of Article XVIII, legislative history,
and the purpose of the 1894 Act, the only reasonable interpretation
of Article XVIII is that it extended to annuities, and no farther.
No one, including the district court, any party or amici, or the
majority, suggests that we interpret Article XVIII literally,
because to do so would eviscerate the 1894 Act, nullifying its
chief provisions and contradicting its entire purpose.(32) Under theAct of April 19, 1858, 11 Stat. 743 (1858) (Treaty of 1858), the
Yanktons were not to be dispossessed of their lands, and white
settlers were not allowed within the 1858 boundaries of the
reservation. The undisputed purpose of the 1894 Act, however, was
to obtain Yankton land for white settlement; the 1894 Act
specifically dispossessed the Yanktons of a substantial portion of
their reservation and allowed white settlers to purchase them. The
1858 Treaty's provisions cannot be reconciled with the 1894 Act,
and Article XVIII of the 1894 Act therefore cannot mean what it
says. See Perry v. Commerce Loan Co.,
383 U.S. 392, 400
(1966)
("'There is, of course, no more persuasive evidence of the purpose
of a statute than the words by which the legislature undertook to
give expression to its wishes. Often these words are sufficient in
and of themselves to determine the purpose of the legislation. In
such cases we have followed their plain meaning. When that meaninghas led to absurd or futile results, however, this Court has looked
beyond the words to the purpose of the act.'" (emphasis added)
(quoting United States v. American Trucking Ass'ns,
310 U.S. 534,
543
(1940))); Armstrong Paint & Varnish Works v. Nu-Enamel Corp.,
305 U.S. 315, 333
(1938) ("to construe statutes so as to avoid
results glaringly absurd, has long been a judicial function"). See
also United States v. Granderson, 114 S. Ct. 1259, 1268-69 (1994)
(using "a sensible construction" to interpret a Sentencing
Guideline "that avoids attributing to the legislature either an
unjust or an absurd conclusion" (citations and quotations
omitted)); Colautti v. Franklin,
439 U.S. 379, 392
(1979)
(describing "elementary canon of construction that a statute should
be interpreted so as not to render one part inoperative").
Although a literal interpretation of Article XVIII is not
possible without absurd results, it is still this Court's task to
determine the intent of the 53rd Congress in crafting this
provision of the 1894 Act. Determining the legislative intent of
a bygone Congress is not a license to redraft poorly constructed
legislation to achieve a result more in harmony with modern
sensibilities, however, and the majority should have forsaken this
opportunity to do so. Contrary to the majority's inventive
interpretation of the savings clause, nowhere in Article XVIII nor
in the legislative history of the 1894 Act is there any suggestion
that the 1858 boundaries were to remain intact, nor that the tribe
was to have continuing authority over ceded lands.(33) Rather,Article XVIII specifically reassured tribal members that annuities
would continue, and the issue of annuities was of foremost
importance in the negotiations for the cession of land. See, e.g.,
(32)The Treaty of 1858, between the United States and the Yankton
Sioux Tribe, provided that:
Article 1.
The said chiefs and delegates of [the Yankton Sioux]
tribe of Indians do hereby cede and relinquish 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--[describes boundaries of reservation].
. . . .
Article 4.
In consideration of the foregoing cession,
relinquishment, and agreements, the United States do
hereby agree and stipulate as follows, to wit:
1st. To protect the said Yanctons [sp] in the
quiet and peaceable possession of the said
tract of four hundred thousand acres of land
so reserved for their future home, and also
their persons and property thereon during good
behavior on their part.
2d. To pay to them, or expend for theirbenefit, the sum of sixty-five thousand
dollars per annum, for ten years, commencing
with the year in which they shall remove to,
and settle and reside upon, their said
reservation--forty thousand dollars per annum
for and during ten years thereafter--twenty-
five thousand dollars per annum for and during
ten years thereafter--and fifteen thousand
dollars per annum for and during twenty years
thereafter--and fifteen thousand dollars per
annum for and during twenty years thereafter;
making one million and six hundred thousand
dollars in annuities in the period of fifty
years . . . .
Article 10.
No white person, unless in the employment of the United
States, or duly licensed to trade with the Yanctons, [sp]
or members of the families of such persons, shall be
permitted to reside or make any settlement upon any part
of the tract herein reserved for said Indians, nor shall
said Indians alienate, sell, or in any manner dispose of
any portion thereof, except to the United States. . . .
(emphasis added).
(33)The majority asserts that "to the extent there could be any
ambiguity perceived in the [1894 Act], it would have to be resolved
in favor of the tribe." Maj. Op. at 17-18. In DeCoteau, the
United States Supreme Court commented on the temptation to misuse
this canon of construction that ambiguities are to be resolved in
favor of the tribe:
For the courts to reinstate the entire reservation, on
the theory that retention of mere allotments was ill-
advised, would carry us well beyond the rule by whichlegal ambiguities are resolved to the benefit of the
Indians. We give this rule the broadest possible scope,
but it remains at base a canon for construing the complex
treaties, statutes, and contracts which define the status
of Indian tribes. A canon of construction is not a
license to disregard clear expressions of tribal and
congressional intent.
420 U.S. at 447
(emphasis added). The majority, therefore, may not
use a canon of construction to create ambiguity where there is
none, and there is no ambiguity in Articles I and II.
S. Exec. Doc. 27, 53rd Cong., 2d Sess. at 17-19 (Mar. 31, 1893
Report of the Yankton Indian Commission). Indeed, even historian
Herbert Theodore Hoover, the Yankton tribe's expert witness,
testified that, at the time of the negotiations preceding the 1894
Act, there existed
a rumor that [the Yanktons] believed that if they didn't
sell the surplus land, the government of the United
States was going to cut off their annuities. . . . So
there was a belief in the tribe that it's plausible the
government might shut these [annuities] down if we resist
[selling land], because the resistance had led to the
loss of annuities in the past. And one should not have
the opinion that tribal members didn't communicate with
each other, because Yanktons ran a lot with government
support to hunt west of the Missouri River. So it's my
opinion that the Yanktons would have believed that the
government might cut off the annuities, and that would
have been disastrous. . . . I believe that they believed
that they were threatened by the loss of the annuities.
Trial Tr. at 53-55.
The majority's assertion that "Article XVIII of the 1894
statute indicated that as much of [the 1858] treaty as possible was
to be preserved," Maj. Op. at 17, is based neither on the text--
which referred only to annuities--nor the legislative history ofthe 1894 Act, and has as its source only, as best as I can discern,
a single-minded desire to avoid diminishment at all costs. Because
Article XVIII extended only to annuities, it could not rebut the
powerful presumption that the Yankton Sioux Reservation was
diminished.
II.
Other provisions of the 1894 Act are also relevant to a
diminishment analysis. First, Article XVII of the 1894 Act
prohibited the sale of liquor on the ceded lands. The inclusion of
a liquor prohibition provision in an allotment statute is
indicative of an intent to diminish the reservation, because
standing law had already prohibited the introduction of alcohol
into Indian country. See Rosebud,
430 U.S. at 613
, 613-15 n.47.
But see Solem,
465 U.S. at 475
-76 n.18 (describing this provision
as being "obviously of secondary importance to our decision" in the
Rosebud case).(34) Second, Article VIII of the 1894 Act, which
reserved parcels of ceded land for agency and school use, is
similar to a provision the Solem Court found indicative of a
continued reservation status. See
465 U.S. at 474
. The Solem
Court, however, did not consider what impact, if any, such a
provision could have on the almost insurmountable presumption of
diminishment created by Articles I and II.
Finally, the 1894 Act reserved the sixteenth and thirty-sixth
sections in each "Congressional township" of the ceded lands forcommon schools, which were to "be subject to the laws of the State
of South Dakota." Ch. 290, 28 Stat. at 319. A virtually identical
provision in the statute opening the Rosebud Sioux Reservation was
found by the Supreme Court to be strongly indicative of
diminishment. See Rosebud,
430 U.S. at 599
-601. The Court
reasoned that the grant of land for common schools was based on
SS 10 of the Act of February 22, 1889, 25 Stat. 679 (admitting
Act), which admitted North and South Dakota into the Union. The
admitting Act provided that:
[U]pon the admission of each of said States into the
Union sections numbered sixteen and thirty-six in every
township of said proposed States . . . are hereby granted
to said States for the support of common schools . . . :
(34)Apparently assuming that neither tribal members nor
government negotiators kept abreast of significant legislation
affecting Indian country, the majority dismisses Article XVII by
asserting that "there is no evidence that any party was aware of
[the 1892 liquor act] at the time the agreement was negotiated."
Maj. Op. at 20. I am sure that, if Congress had been aware that
the plain language of its legislation was insufficient to convey
its meaning to future courts, the legislative history in this case
would have been much more complete.
Provided, That the sixteenth and thirty-sixth sections
embraced in permanent reservations for national purposes
shall not, at any time, be subject to the grants . . . of
this act, nor shall any land embraced in Indian,
military, or other reservations of any character be
subject to the grants . . . of this act until the
reservation shall have been extinguished and such lands
be restored to, and become a part of, the public domain.
Reprinted in Rosebud,
430 U.S. at 599
-600 (emphasis added). The
Rosebud Court reasoned that, because the admitting Act specifically
excluded a grant of land in an Indian reservation until after the
reservation had been extinguished, the congressional grant of land
based on SS 10 of the admitting Act necessarily implied that the
Rosebud reservation had been diminished. See id. at 599-601. This
precise logic applies in this case, as well: the grant of land for
common schools in the 1894 Act--which contains the identical
language as SS 10 of the admitting Act--could not have been based
on SS 10 of the admitting Act if the Yankton reservation had not
been diminished. This provision, therefore, strongly supports
diminishment.(35) III.
The United States Supreme Court has found diminishment of a
reservation even where Congress has not made its intent to diminish
explicit by including language of cession of land for a sum certain
in an allotment statute. In Solem, the Court stated that
explicit language of cession and unconditional
compensation are not prerequisites for a finding of
diminishment. When events surrounding the passage of a
surplus land Act--particularly the manner in which the
transaction was negotiated with the tribes involved and
the tenor of legislative Reports presented to
Congress--unequivocally reveal a widely held,
contemporaneous understanding that the affected
reservation would shrink as a result of the proposed
legislation, we have been willing to infer that Congress
shared the understanding that its action would diminish
the reservation . . . .
465 U.S. at 471
(citations omitted). The legislative history of
the 1894 Act contains striking passages which clearly anticipated
the termination of tribal governance; see, e.g., S. Exec. Doc. 27
at 19 ("and now that [the Yankton Indians] have been allotted their
lands in severalty and have sold their surplus land--the last
property bond which assisted to hold them together in their tribal
interest and estate---their tribal interests may be considered a
thing of the past") (Report of the Yankton Indian Commission,
recommending that South Dakota be given funds to ensure access by
Yankton Indians to state courts). See also id. at 48 ("It might
be, after you sold your lands, you could have this reservation
organized as a separate county. If this could be done--I do not
say it can--you could govern your own people in your own way, solong as you obeyed the laws of the State.") (statements by
government negotiator to Yankton tribal members, emphasis added).(36)
In addition, "events that occurred after the passage of a
surplus land Act" may support a finding of diminishment. Solem,
465 U.S. at 471
. These "events" include how "local judicial
authorities dealt with unallotted open lands." Id.(37) In thiscase, the South Dakota Supreme Court has consistently held that the
Yankton Sioux Reservation has been diminished. See, e.g., State v.
Thompson, 355 N.W.2d 349 (S.D. 1984); State v. Winckler, 260 N.W.2d
356 (S.D. 1977); State v. Williamson, 211 N.W.2d 182 (S.D. 1973);
Wood v. Jameson, 130 N.W.2d 95 (S.D. 1964).(38) While the Yanktontribe has not "exercised civil jurisdiction, particularly
environmental regulation, over Indians or non-Indians beyond its
trust lands," Yankton Sioux, 890 F. Supp. at 888, by contrast, "the
State of South Dakota has exercised jurisdiction over mining, solid
(35)The majority asserts that this provision has "considerably
less force" because the reserved sections were explicitly made"'subject to the laws of the State of South Dakota.'" Maj. Op. at
21 (quoting 1894 Act). I disagree, and find it somewhat illogical
to infer a grant of jurisdiction to a tribe over ceded lands
because of an explicit grant of jurisdiction to the State of South
Dakota over the ceded lands.
(36)Even assuming that mere legislative history could rebut the
almost insurmountable presumption of diminishment created by
Articles I and II of the 1894 Act, there is nothing in the
legislative history which contradicts the diminishment of the
reservation. Although the district court referred to a letter in
the legislative history which it believed to support the continued
reservation status of the ceded lands, see Yankton Sioux, 890 F.
Supp. at 883-86 (quoting S. Exec. Doc. No. 27 at 5), it is apparent
that the district court made an erroneous interpretation. The
letter relied on by the district court stated that "'the treaty
makes no provision regarding the cession or relinquishment of the
reservation or any portion thereof.'" Id. at 883-84 (quoting S.
Exec. Doc. 27 at 5). It is clear, and the parties agree, see
Appellant's Motion to Enlarge Record at 1-2; Appellee's Response to
Motion to Enlarge Record at 2, that this letter referred to the
Treaty of 1858. The district court, however, misinterpreted this
as a reference to the 1892 Agreement: "Most importantly, Armstrong
also observed that the Agreement 'makes no provision regarding the
cession or relinquishment of the reservation or any portion
thereof.'" Yankton Sioux, 890 F. Supp. at 885-86 (emphasis
deleted) (quoting S. Exec. Doc. No. 27 at 5). The only "Agreement"
involved in this case, the 1892 Agreement, contained Article I,
which expressly provided for the cession of a portion of the
Yankton reservation. This fundamental error in the district
court's interpretation of the legislative history of the 1894 Act
substantially undermines its determination that the Yankton Sioux
Reservation was not diminished.
(37)Treatment of the area by Congress and the Executive may also
have some interpretive value. See Solem,
465 U.S. at 471
. The
United States Supreme Court has, however, typically held this
evidence in low regard. In Hagen, the Court noted that "the views
of a subsequent Congress form a hazardous basis of inferring the
intent of an earlier one." 114 S. Ct. at 970 (citation and
quotations omitted). In Solem, the United States Supreme Court
noted that:
The subsequent treatment of the Cheyenne River Sioux
Reservation by Congress, courts, and the Executive is sorife with contradictions and inconsistencies as to be of
no help to either side. . . . [Ample] examples pointing
in both directions leave one with the distinct impression
that subsequent Congresses had no clear view whether the
opened territories were or were not still part of the
Cheyenne River Reservation. A similar state of confusion
characterizes the Executive's treatment of the Cheyenne
River Sioux Reservation's opened lands.
465 U.S. at 478
-79. See also Rosebud,
430 U.S. at 605
n.27 (the
"sporadic, and often contradictory, history of congressional and
administrative actions in other respects carries but little
force"). The examples culled from the record by both the majority,
see Maj. Op. at 27-33, and the district court, see Yankton Sioux,
890 F. Supp. at 886-87, are similarly either "merely passing
references," Hagen, 114 S. Ct. at 970 (citations and quotations
omitted), or "rife with contradictions." Solem,
465 U.S. at 478
.
(38)The majority dismisses the case law of the South Dakota
Supreme Court by asserting that it does "not show full development
of the issues or the analytical approach required by the United
States Supreme Court." Maj. Op. at 22. I disagree. In State v.
Thompson, 355 N.W.2d 349 (S.D. 1984), the South Dakota Supreme
Court applied the analysis provided by the United States Supreme
Court in DeCoteau and in Rosebud, and upheld its earlier
determination that the Yankton Reservation had been diminished.
See id. at 350-51. While the South Dakota Supreme Court's analysis
in Thompson is considerably briefer than that performed by the
majority in the instant case, I do not believe that accuracy can
necessarily be measured by volume.
The majority also notes that the South Dakota Supreme Court
was once reversed by the United States Supreme Court after
incorrectly finding that a reservation had been diminished. See
Maj. Op. at 22 n.20 (citing State v. Janis, 317 N.W.2d 133 (S.D.
1982), abrogated in relevant part, Solem,
465 U.S. at 466
(affirming contrary decision in Bartlett v. Solem, 691 F.2d 420
(8th Cir. 1984))). I remind the majority that, while we were right
and the South Dakota Supreme Court was wrong in Solem, it was the
South Dakota Supreme Court's finding of diminishment which was
upheld, while this Court's conclusion that a reservation was notdiminished was reversed, by the United States Supreme Court in
DeCoteau. See
420 U.S. at 449
(affirming DeCoteau v. District
County Court, 211 N.W.2d 843 (S.D. 1973), and reversing United
States ex rel. Feather v. Erickson, 489 F.2d 99 (8th Cir. 1973)).
waste disposal, and hazardous materials on non-Indian lands located
within the 1858 exterior boundaries of the Yankton Sioux
Reservation." Id. Indeed, South Dakota has exercised civil and
criminal jurisdiction over tribal members in the ceded lands for
the past century. See id. at 887. Although this exercise of
jurisdiction may not be dispositive, it substantially supports a
finding of diminishment. See, e.g., Hagen, 114 S. Ct. at 970
("This 'jurisdictional history,' as well as the current population
situation in the Uintah Valley, demonstrates a practical
acknowledgement that the Reservation was diminished; a contrary
conclusion would seriously disrupt the justifiable expectations of
the people living in the area."); see also Rosebud,
430 U.S. at 604
("[T]he fact that neither Congress nor the Department of Indian
Affairs has sought to exercise its authority over this area, or to
challenge the State's exercise of authority is a factor entitled to
weight as a part of the 'jurisdictional history.'"); DeCoteau,
420
U.S. at 449
("Until the Court of Appeals altered the status quo,
South Dakota had exercised jurisdiction over the unallotted lands
of the former reservation for some 80 years.").
Federal courts have also usually considered the Yankton
reservation to have been diminished. In Perrin v. United States,
232 U.S. 478
(1914), a white merchant living on ceded lands within
the boundaries of the 1858 Yankton reservation was convicted of
selling alcohol, in violation of the 1894 Act and a related
statute. The Court, after noting that "[t]he power of Congress toprohibit the introduction of intoxicating liquors into an Indian
reservation . . . does not admit of any doubt," id. at 482, went on
to analyze whether Congress had authority to regulate alcohol "upon
ceded lands formerly included in the Yankton Sioux Indian
Reservation." Id. at 480. The Court referred to the "original
reservation," id. at 486, and quoted case law that "[i]f liquor is
injurious to [Indians] inside of a reservation, it is equally so
outside of it." Id. at 484 (quoting United States v. Forty-three
Gallons of Whiskey,
93 U.S. 188, 195
(1876)). While not reaching
a specific holding, the United States Supreme Court clearly treated
the Yankton Sioux Reservation as diminished.(39) See also Weddell v.
Meierhenry, 636 F.2d 211, 213 (8th Cir. 1980) (noting that
community within the 1858 boundaries of the reservation was not a
"dependent Indian community") (denying habeas relief to Yankton
tribal member convicted in the South Dakota state court for crimes
committed on ceded lands), cert. denied,
451 U.S. 941
(1981);
Yankton Sioux Tribe v. United States, 623 F.2d 159, 165 (Ct. Cl.
1980) ("These final boundaries of the Yankton Sioux Reservation
were respected by both parties for more than three decades up until
the 1892 Agreement changed those boundaries by the cession at issue
in this case.") (awarding additional compensation for lands ceded
by 1894 Act).
IV.
Under the explicit terms of the 1894 Act and in light of
controlling United States Supreme Court precedent, it is clear that
the 53rd Congress intended to change the Yankton Sioux
Reservation's boundaries and to remove tribal authority over lands
ceded in the 1894 Act, and that the 1894 Act therefore diminished
the Yankton Sioux Reservation. While I understand the majority's
desire to "remake history," DeCoteau,
420 U.S. at 449
, and to
redraft legislation which has arguably had unfortunate results,
see, e.g., Maj. Op. at 8 (noting that "it became clear in the first
decades of the twentieth century that the allotment policy was
failing"), its rejection of clear congressional intent and its
disregard of controlling and contrary Supreme Court precedent
cannot be condoned. I respectfully dissent.
A true copy.
Attest:
(39)In addition, cases citing to Perrin have assumed that the
Yankton reservation had been diminished. See, e.g., United States
v. Mazurie,
419 U.S. 544, 554
(1975) (Perrin involved land that
"originally had been included in the Yankton Sioux Indian
Reservation, but had been ceded to the United States."); Mescalero
Apache Tribe v. Jones,
411 U.S. 145, 159
(1973) (Douglas, J.,
dissenting) ("In the liquor cases the Court held that it reached
acts even off Indian reservations in areas normally subject to the
police power of the States." (citing to Perrin)); Johnson v.
Gearlds,
234 U.S. 422, 444-45
(1914) (Perrin involved "ceded lands
formerly included in the Yankton Sioux Indian reservation in the
State of South Dakota.").
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.