Petition — Sac & Fox Tribe of the Mississippi in Iowa v. Licklider

IN THE

Supreme Court of the United

OctToBER TERM, 1978:

nor Y8-356

Sac AnD Fox TRIBE OF THE Mississrppr IN Iowa,

Petitioner,

Vv.

Les Lickiiver, Chairman, Iowa State Conservation

Commission ; THomas A. Bares; Jim D. BrxTer; JOHN

G. Linx; CaRoLyn T. LUMBARD; "Hersert T. REED: and

JOHN THOMPSON, members of the State Conservation

Commission ; FRep A. PrRiEWART, Executive Director,

State Conservation Commission; and KENNETH KakKac,

Superintendent of Law Enforcement, Hunting and

Fishing,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

A. JoHy WASBAUNSEE

RICHARDNB-COrNINS

Native AMericaANn\Ricnts Funp

1506 Broadway

Boulder, Colorado 80302

Counsel for Petitioner

August 1978

ORLA TA RMT RS 2 ERRNO Nt ORE ES AER,

PRESs OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C,

WH ane Saeviesiene

IN THE

Supreme Court of the United States

OcroBER TERM, 1978

Sac AND Fox TRIBE OF THE MississtpPiI IN Towa,

Petitioner,

v.

Les Lickiiper, Chairman, Iowa State Conservation

Commission; THomas A. Bates; Jim D. Brxter; JoHN

G. Link; CaroLyy T. LumMBArD; Herpert T. Reep; and

JOHN THOMPSON, members of the State Conservation

Commission; Frep A. PrreEwart, Executive Director,

State Conservation Commission; and KENNETH KAKAC,

Superintendent of Law Enforcement, Hunting and

Fishing,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Sae and Fox Tribe of the Mississippi in Iowa

(the Tribe) petitions for a writ of certiorari to review

the decision of the United States Court of Appeals

for the Eighth Circuit in this case.

—

OPINIONS BELOW

The opinion of the District Court is not reported;

that of the Court of Appeals is reported at 576 F.2d

145 (8th Cir. 1978). Both are reproduced in the ap-

pendix to this petition.

2

JURISDICTION

The decision of the Court of Appeals was entered

on May 12, 1978. The Tribe filed a timely petition for

rehearing on May 26, 1978, which was denied on June

7, 1978. The Tribe invokes the jurisdiction of this

Court under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Has Congress conferred jurisdiction on the State of

Iowa to regulate Indian hunting and fishing within the

Sac and Fox Indian Reservation?

STATUTES INVOLVED

The following statutes are involved in this case and

are more fully set out in the appendix:

1. Act of the Fifth Extra Iowa General Assembly

ch. 30, July 15, 1856.

2. Act of the Twenty-Sixth Iowa General Assem-

bly, ch. 110, February 14, 1896.

3. Act of June 10, 1896, ch. 398, 29 Stat. 321, 331.

4. Act of June 30, 1948, ch. 759, 62 Stat. 1161.

STATEMENT OF THE CASE

The Sac and Fox Tribe of the Mississippi in lowa

brought this action against state officials seeking a de-

termination whether the State of Iowa can regulate

Indian hunting and fishing on the Sac and Fox Reser-

vation in Tama County, Iowa. The United States filed

a similar action, and the two were consolidated. The

District Court held that two federal statutes’ author-

ized state regulation (see page 5a below); the Court

1 Act of June 10, 1896, ch. 398, 29 Stat. 321, 331; Act of June

30, 1943, ch. 759, 62 Stat. 1161. (See page 25a below).

3

of Appeals affirmed on the same ground (see page

18a, 19a below). oe

Before considering the two federal statutes relied on

by the courts below, it is necessary to trace briefly the

background of the Reservation and the relationship

between the United States and the Sae and Fox In-

dians. These are discussed in some detail in Part I of

the Court of Appeals’ decision, set out below at pages

8a-12a, and need not be completely restated here. The

relevant and significant points should, however, be

summarized.

The Sac and Fox Tribes’ were repeatedly forced to

move west and south from their aboriginal lands by the

expansion of the United States. Their assent to these

moves was embodied in the extraordinary number of

nineteen treaties with the United States. An 1825

treaty * expressly recognized their occupancy right to

a large part of Iowa including the present Reservation.

In an 1842 treaty * the tribes agreed to cede all Iowa

lands and remove to Kansas by 1845.

A number of tribesmen (mostly Fox) were opposed

to the 1842 treaty. Some refused to leave and remained

in Iowa; others returned from Kansas. In the 1850’s

Iowa citizens petitioned the State government to allow

them to remain in Iowa. In response the Iowa Legis-

* Historically these were two separate tribes. In the late 18th

century the Fox were reduced in number by wars with the French

and formed a loose confederation with the Sac. The United States

mostly dealt with the confederated tribes. See pages la, 9a-10a

elow.

* Treaty of August 19, 1825, 7 Stat. 272.

* Treaty of October 11, 1842, 7 Stat. 596.

4

lature in 1856 enacted a statute’ which gave the con-

sent of the state ‘‘that the Indians now residing in

Tama County known as a portion of the Sacs and

Foxes, be permitted to remain and reside in said state

...2’ The Indians purchased 80 acres of land, and title

was taken in the name of the Governor of Iowa in

trust for the Tribe. Over the next forty years, the Tribe

purchased additional lands to bring the total to about

3,000 acres. Trust title to about 2,720 acres was in the

Governor of Iowa; trust title to 280 acres was in the

federal Indian agent.

In 1865 the United States sent an Indian agent to

supervise the Indians in Tama County. In 1867 the

Sae and Fox Tribes entered into another treaty ced-

ing their Kansas lands and agreeing to remove to

Oklahoma, but the treaty expressly excepted those in

Iowa.’ A statute passed the same year assented to the

Iowa Indians being paid their treaty annuities in

Towa.’

From 1865 until the present, the Tama County, Iowa,

lands of the Sac and Fox Tribe have been for the most

part treated like any other Indian reservation. The

lands are occupied and used communally by the Tribe

under federal supervision.’ The federal government

has assumed the usual supervisory obligations: land

® Act of the Sixth Iowa General Assembly, ch. 30, July 15, 1856,

set out at p. 22a below.

® Treaty of February 18, 1867, 15 Stat. 495, art. 21.

7 Act of March 2, 1867, ch. 173, 14 Stat. 492, 507.

® See United States v. John, 46 U.S.L.W. 4806 (June 23, 1978).

The Tribe’s lands, even when held by the State of Iowa in trust

for the Tribe, could not have been alienated without the consent of”

the United States, 25 U.S.C. § 177.

ee 8 8 eta Reno Re ear neg RT

eee eee

5

management, health and education funding, and the

like. In 1937, the Tribe organized a tribal government

eg to the Indian Reorganization Act, 25 U.S.C.

The present case depends on two federal statutes

passed in 1896 and 1948 which allocated certain kinds

of criminal law jurisdiction to the State of Iowa. Al-

though neither statute refers to hunting and fishing

nor does the legislative history of either, the courts

below held that they authorize state regulation of In-

dian hunting and fishing within the Reservation. Be-

cause these statutes and the circumstances of their en-

actment are the matters at issue, they are discussed in

the following sections of this petition.

The reasons for granting the writ in this case are

that the courts below have interpreted federal laws in

a manner fundamentally at odds with the very nature

of an Indian reservation and contrary to prior deci-

sions of this Court. From the beginning a basic pur-

pose implicit in the concept of an Indian reservation

was Indian use of the land reserved for their subsist-

ence and self-support. Subsistence hunting, fishing

and gathering for food, clothing and spiritual and

other uses are manifestly at the heart of such purposes.

These principles have been recognized in numerous

court decisions, ¢.9., Menominee Tribe v. United States,

391 U.S. 404 (1968) ; United States v. Shoshone Tribe,

304 U.S. 111 (1938); United States v. Winters, 207

U.S. 564 (1908). No prior decision anywhere sustains

state prohibition of subsistence Indian hunting and

fishing within reservations.

In other situations where (as here) tribes agreed to

remove from an area, but the removal was later par-

6

tially rescinded, the courts have found that hunting

and fishing rights survived. State v. Gurnoe, 53 Wis.

2d 390, 192 N.W.2d 892 (1972) ; People v. Leblanc, 399

Mich. 31, 248 N.W.2d 199 (1976).

Modern state regulation of hunting and fishing, pri-

marily geared to sportsmen, is conceptually incompati-

ble with Indian subsistence harvesting, so that state

regulation of reservation Indians is generally con-

demned.’ State hunting and fishing seasons prohibit

subsistence taking during most of the year and thus

almost entirely negate the essential Indian use.

A. The 1896 Statute Did Not Confer Hunting and Fishing

Jurisdiction on Iowa.

In 1896 the Iowa Legislature offered to transfer to

the United States trust ownership of the Sac and Fox

lands then held by the Governor of Iowa.” The tender

to the United States offered ‘‘exciusive jurisdiction”

to the United States but excepted certain forms of

jurisdiction over the Reservation including ‘‘crimes

against the laws of Iowa committed thereon. . . by

said Indians.’’ Congress accepted the transfer with its

conditions." The courts below held that this statute

conferred hunting and fishing regulatory contro] on

the State. This was clearly in error for the reasons

following.

Between 1899-1901, the federal district court for the

Northern District of Iowa issued four decisions con-

* State v. Tinno, 94 Ida. 759, 497 P.2d 1386, 1392 (1972); F.

Cohen, Handbook of Federal Indian Law (GPO 1942) p. 286.

© Act of the Twenty-Sixth Iowa General Assembly, ch. 110,

February 14, 1896 (sce page 23a).

1t Act of June 10, 1896, ch. 398, 29 Stat. 321, 331 (see page 25a).

7

cerning one series of events: efforts to force Indian

children to attend school.” One of the issues in these

cases was whether Indian adults who kept the children

out could be prosecuted in state court for violation of

the Iowa compulsory school attendance laws. The court

held that they could not be prosecuted because the 1896

statute did not give Iowa such jurisdiction. Peters v.

Malin, 111 F. at 255 (N.D. Iowa 1901). The court also

held that the tribe and its lands had been under federal

supervision and control prior to 1896, so that Iowa had

nothing to reserve, and that the purported exception

as applied would be fundamentally inconsistent with

the grant. 111 F. at 250-56.

The court below purported to distinguish Peters v.

Malin by arguing that compulsory school laws inter-

fere with ‘“‘the affairs of the tribal Indians in their

relation to each other,’’ but hunting and fishing laws

do not. See page 19a below. This distinction is not

rational. Subsistence use of Indian lands is at least as

much an internal matter as requiring Indians to attend

school. There is no compelling state interest in game

regulation until the State shows that actual Indian

practices create conservation problems outside the In-

dian lands. See Puyallup Tribe v. Department of

Game, 391 U.S. 392 (1968). There was no such show-

ing or finding in this case.

A further problem with the reasoning below is that

it is clear that both the State and Congress understood

the decision in Peters v. Malin, supra, to place the Res-

ervation under federal jurisdiction rather than State,

72 In re Lelah-Puc-Ka-Chee, 98 F, 429 (N.D. Iowa 1899) ; Peters

v. Malin, 104 F’. 849 (N.D. Iowa 1900) ; Y-Ta-Tah-Wak v. Rebock

105 F. 257 (N.D. Iowa 1900); Peters v. Malin, 111 F. 244 (ND.

Iowa 1901).

8

notwithstanding the 1896 statute. Otherwise the 1948

statute, discussed below, would have been redundant.

Congress expressly recognized this in the legislative

history of the 1948 Act, which was ignored by the

courts below. See House Report No. 2356, 80th Cong.,

2d Sess. (1948).

In the somewhat different context of state jurisdic-

tional cessions to the federal government for other pur-

poses, this Court has recognized that an exception re-

taining general state criminal jurisdiction does not in-

clude regulatory authority. Collins v. Yosemite Park

& Curry Co., 304 U.S. 518 (1938) (liquor regulation).

B. The 1948 Statute Did Not Confer Hunting and Fishing

Jurisdiction on Iowa.

The 1948 statute conferred on Iowa jurisdiction

over “offenses committed by or against Indians on the

Sac and Fox Indian Reservation’’ but excepted juris-

diction over offenses ‘‘defined by the laws of the United

States committed by or against Indians on Indian res-

ervations.’”? Youngbear v. Brewer, 549 F.2d 74 (8th

Cir. 1977). The courts below held that this statute also

confers jurisdiction on Iowa over Indian hunting and

fishing on the Reservation. This was clear error for

the following reasons.

Many of the same reasons set out above are again

applicable. Hunting and fishing is not mentioned in the

statute or any legislative history, and is primarily

regulatory rather than criminal. In Menominee Tribe

v. United States, 391 U.S. 404 (1968), this Court held

that 25 U.S.C. §899, which stated that all federal In-

dian laws were withdrawn from the Menominee Tribe,

18 Act of June 30, 1948, ch. 259, 62 Stat. 1161, see page 25a.

< Lek a dea en, an tment ON

9

was insufficient to permit state jurisdiction over In-

dian hunting and fishing on a former reservation. The

much more modest scope of the 1948 Sac and Fox

statute cannot reasonably be said to do more. See also

Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974), cert.

dented, 419 U.S. 1019 (1975).

A further problem with the decision below is that

it produces an absurd result. The retained federal ju-

risdiction under the proviso to the 1948 statute includes

Jurisdiction to prosecute non-Indians who violate the

Indian lands for hunting and fishing. 18 U.S.C. $6 1165

1164; Youngbear v. Brewer, supra. Thus the court’s

decision supports federal jurisdiction over non-Indian

hunting and fishing but state jurisdiction over the

Indians.

The interpretation below of the 1948 statute is also

inconsistent with the Indian Reorganization Act Con-

stitution granted the Tribe in 1937, which expressly

commits to tribal authority the protection of tribal

resources. See R. Tribe’s Exh. 2, The right to use tribal

lands for self-support is obviously the most basic of

such resources.

10

CONCLUSION

If a statute is to abrogate basic Indian rights and

immunities, it must do so in clear, unambiguous lan-

guage. Bryan v. Itasca County, 426 U.S. 373, 392

(1976). Neither statute relied on below satisfies that

test, and subsistence use of land is the most funda-

mental attribute of an Indian reservation. For these

reasons this Court is requested to grant this petition

and to reverse the decision below.

Respectfully submitted,

MERLE Royce

11114 East Main Street

Marshaltown, Iowa 50158

(515) 753-3648

A. JOHN WABAUNSEE

What adie Rass Powe " APPENDIX

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

Counsel for Petitioner

August 1978

la

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

No. C 74-30

Sac anp Fox Trine or tHe Mississiprr 1n Iowa, Plaintiff,

vs.

Les Lickuiper, et al., Defendants.

No. C 75-42

Unitep States or America, Plaintiff,

Vs.

State or Iowa, Defendant.

(Fitep May 6, 1977)

Findings of Fact, Conclusions of Law and Order

These consolidated actions for declaratory relief are be-

fore the court for final decision following oral hearing

January 10, 1977.

Finpincs or Fact

1. Plaintiffs are the American Indian Sac and Fox

Tribe of the Mississippi in Iowa (Tribe)! and its guardian

the United States of America.

2. Defendants are the State of Iowa, the State Con-

servation Commission and the Commission’s Superintend-

ent of Law Enforcement.

3. The Tribe occupies an approximately 3000 acre

tract of land in Tama County, Iowa (Tract) which is held

' Traditionally the government has characterized the Sac (Sauk)

and Fox (Mesquakie) as a confederated tribe.

2a

in trust by the United States for the use and benefit of the

Tribe.

4. Prior to the year 1700 and dating from time im-

memorial the Sae and Fox Tribes were distinct separate

tribes. However, as a result of war between the Foxes and

the French in the early 18th Century, the Fox Indians were

reduced in number and joined the Sacs in a confederacy.

By the middle of the 18th Century, the Sac and Fox In-

dians had established villages in Iowa and Illinois along

the Mississippi River and hunted, fished and trapped along

the entirety of the Skunk, Cedar, Des Moines and Iowa

Rivers.

5. In conjunction with the Ioway Tribe, the Tribe had

exclusive aboriginal domain over what is commonly re-

ferred to as Royce Area 262 which includes the Tract.

6. Prior to the Treaty of October 11, 1842, 7 Stat. 596,

the Tribe hunted and trapped in Royce Area 262 and west

of Royce Area 262 to the Missouri River and beyond for

sustenance and trade purposes.

7. By the Treaty of 1842 the Tribe ceded to the United

States forever, all the lands west of the Mississippi River,

to which they have any claim or title, or in which they have

any interest whatever (including the Tract), and removed

to Kansas in exchange for payment of annuities.” Hunting,

2. Article I. Treaty of 1842, 7 Stat. 596:

The confederated tribes of Sacs and Foxes cede to the

United States forever, all the lands west of the Mississippi

river, to which they have any claim or title, or in which they

have any interest whatever; reserving a right to occupy for

the term of three years from the time of signing this treaty,

all that part of the land hereby eeded which lies west of a

line running due north and south from the painted or red

rocks on the White Breast fork of the Des Moines river, which

rocks will be found about eight miles, when reduced to a

straight line, from the junction of the White Breast with the

Des Moines.

3a

fishing and trapping rights were not reserved. Many mem-

bers of the Tribe formally opposed the treaty and later

returned to Iowa from Kansas.

8. In the period from 1852 to 1856, private individuals

and officials of the State of Towa assisted members of the

Tribe who wished to reside in Iowa.

9. By the Act of July 15, 1856, the State of Iowa gave

its consent for the Tribe then residing in Tama County to

remain and reside there and directing the Governor to so

inform the Secretary of War and urge payment of their

annuities in Iowa. The United States agreed thereto, Act

of March 2, 1867, 14 Srav. 492, 507.

10. After 1857, the traditional hunting, fishing and

trapping practices of members of the Tribe continued

through the end of the 19th Century, with members of the

Tribe leaving their land near Tama to spend the winter

hunting and trapping along the various river valleys and in

the spring returning to plant their crops.

11. The Department of the Interior appointed Leander

Clark as special Indian Agent for the Tribe in August,

1865, and established a special ageney for the Tribe, which

continues to the present date.°

12. Between 1856 and 1896, the approximately 3,000

acres of land was purchased in Tama County for the bene-

fit of the Tribe. The Governor of Towa, prior to 1896, pur-

chased 2,720 acres of land in trust for the benefit of the

Tribe, ineluding the first 80 acres in 1857. The Indian

* From at least 1874, the Bureau of Indian Affairs has expended

money for the education of members of the Tribe, including the

construction of a boarding school in Toledo, Iowa, in 1897 and

construction of an elementary school on the tract in 1938. Since

1897, the Bureau of Indian Affairs has also expended funds for

the Tribe and its members, including social services, land manage-

ment, employment assistance, health services, including water and

sanitation, and police services.

4a

Agent took title as grantee of 280 acres of land as trustee

for the benefit of the Tribe. Money for the purchase of said

land was obtained by the Tribe or its members from the

sale of horses, the sale of pelts, charitable contributions,

or treaty annuities paid by the United States.

13. All the land purchased for the benefit of the Tribe

prior to 1896 was held by the Governor of Iowa or the

Indian Agent as trustee for the use and benefit of the

Tribe.

14. In 1896 an act of the Iowa legislature tendered

exclusive jurisdiction and title to the Tract to the United

States,’ adding in § 3 thereof that “nothing in this act shall

be construed to prevent [Iowa] courts from exercising

jurisdiction of crimes against the laws of Iowa committed”

on tribal lands. The federal government accepted and as-

sumed jurisdiction over the Tribe and its lands pursuant

to the act of the Towa legislature and “subject to the limita-

tions therein contained”.’ Pursuant thereto on July 3, 1908

the Governor of Iowa executed a deed of the Tract to the

Secretary of the Interior of the United States. See Deed

Record No. 135, Tama Co., Towa p. 321.

15. Defendants have enforced Iowa fish and game laws

against members of the Tribe on the Tract since as early

as the 1930’s. Violations can result in $100 fine and 30 days

in jail and civil damages, §4 109.32, 109.119, 109.130. Code

of Iowa (1975).

Conc.Lusions OF Law

1. The court has jurisdiction of the parties and subject

matter. 28 USC §§1331(a); 1348; 1345; 1362; 2201; 42

USC § 1983.

“See Appendix A.

5 See Appendix B.

cab

5a

2. Plaintiffs have failed to prove by a preponderance

of the evidence that the Tribe retained hunting and fishing

rights in the Tract notwithstanding the Treaty of 1842. The

language of the Treaty is unequivocal and the court must

conclude that such language terminated the Ti »e’s rights

in the land. See e.g., State v. Williamson, 211 N.W.2d 182

(S.D. 1973).

3. Kven though the Tract is “Indian Country” within

the meaning of 18 USC § 1151, Youngbear v. Brewer, 415

F.Supp. 807 (N.D. Iowa 1976) aff’d F.2d (8th

Cir. Feb. 9, 1977), plaintiffs have failed to prove by a pre-

ponderance of the evidence that such status entitles mem-

bers of the Tribe to hunt, fish and trap within the Tract

free of state regulation. Ch. 110 Laws of the 26th G.A.,

Feb. 14, 1896; Act of June 30, 1948, 62 Stat. 1161.°

It is therefore

ORDERED

Dismissed.

May 6, 1977.

/s/ Epwarp J. McManus

Edward J. MeManus, Chief Judge

Unitep States District Court

*In Menominee Tribe v. United States, 391 U.S. 404 (1968) the

Menominee could point to specific Treaty rights and the specific

hunting and fishing rights proviso of 18 USC § 1162(b).

6a

[Caption OmitrTep]

(Firep May 6, 1977)

Order

This matter is before the court on plaintiff Sac and Fox

Tribe’s resisted motion to amend findings of fact, filed

May 16, 1977 and defendants’ resisted bill of costs, filed

May 20, 1977.

Motion to AMEND

Plaintiff Tribe seeks to have this court’s May 6, 1977

findings of fact amended to include a finding of continued

Mesquakie presence in Iowa in violation of the Treaty of

1842.

Although the issue was argued and briefed by both sides,

the court found resolution of the continued presence issue

unnecessary in deciding this matter. Whether or not Mes-

quakies resided in Towa in violation of the Treaty of 1842

is of no consequence to the court’s ultimate conclusion that

the Sac and Fox Tribe relinquished all hunting, fishing and

trapping rights by the Treaty of 1842. See, conclusion of

law No. 2, May 6 order. The Tribe failed to show how any

Mesquakie presence after 1842 could have been relevant to

the controlling question of the Tribe’s full relinquishment

of its rights in 1842.

TAxaTION OF CosTs

[OmitTTep]

Epwarp J. McManus, Chief Judge

United States District Court

SWE A HELI

Ta

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1534

No. 77-1595

Sac anv Fox Trise oF THE Mississippi in Iowa, Appellant,

AND Unitep States

Vv.

Les Lickiiper, Chairman, State Conservation Commission;

Tuomas A. Bates; Jim D. Faxter; Jonn G. Link; Carotyn

T. Lumsarp; Hersert T. Reep; and Joun THOMPSON,

members of the State Conservation Commission; Frep A.

Prizwart, Executive Director, State Conservation Commis-

sion; and KennetH Kakac, Superintendent of Law En-

forcement, Hunting and Fishing,

Appellees.

Appeal from the United States District Court for the

Northern District of Iowa

Submitted: February 15, 1978

Filed: May 12, 1978

Before Gisson, Chief Judge Srepuenson, Cireuit Judge,

and Brcker,* Senior District Judge.

STEPHENSON, Circuit Judge.

This case presents the question of whether the state of

Iowa has jurisdiction to regulate hunting, fishing and trap-

ping by members of the Sac and Fox Tribe of the Missis-

sippi in Iowa (Tribe) on a tract of land in Tama County,

Iowa, occupied by the Tribe.

ta The Honorable William H. Becker, Senior United States Dis-

trict Judge for the Western District of Missouri, sitting by desig-

nation.

8a

The Tribe presently resides on a 3,000 acre tract of land

in Tama County, Iowa, which is held in trust by the United

States for the use and benefit of the Tribe. In response to

recent arrests of Tribe members by Iowa officials for viola-

tion of Iowa fish and game laws, the Tribe brought this

action below. The United States brought a similar action

and the two cases were consolidated. In essence, the plain-

tiffs sought declaratory and injunctive relief to the effect

that fowa has no jurisdiction to regulate hunting, fishing

and trapping by Tribe members on the tract of land oc-

cupied by the Tribe. The cases were considered by the dis-

trict court’ on agreed-to stipulations of fact with the sin-

gle exception as to whether some Sac and Fox Indians

remained in Iowa between the years 1845 and 1856. The

district court, on May 6, 1977, concluded that Iowa had

jurisdiction to regulate hunting, fishing and trapping on

the Tama tract and accordingly dismissed the consolidated

actions. These appeals by the Tribe and the United States

followed.

1.

We begin with the recognized principle that: “Federal

Indian law is a subject that cannot be understood if the

historical dimension of existing law is ignored.” United

States v. Erickson, 478 F.2d 684, 686 (8th Cir. 1973), quot-

ing from F. Cohen, Handbook of Federal Indian Law, XIII

(Introduction by N. Margold) (1942). Prior to the year

1700 Sae and Fox Tribes were distinct separate tribes re-

siding in what is now central Wisconsin. As a result of war

between the Fox and the French in the early 18th Cen-

tury, the ‘ox were reduced in number and formed a loose

confederation with the Sac. By 1800 the Sae and Fox had

established villages along the Mississippi River in what is

now Towa and Tllinois. Hunting, fishing and trapping took

them as far west as central Towa.

oe

*The Honorable Edward J. McManus, Chief Judge, United

States District Court for the Northern District of Iowa.

weld

9a

The Sac were first recognized by the United States in the

Treaty of Jan. 9, 1789, 7 Stat. 28, 31 (1846), when the

United States received the Sac into its friendship and pro-

tection. The Sae and Fox were jointly recognized in the

Treaty of Nov. 3, 1804, 7 Stat. 84 (1846), in which much

of what later became Illinois, Wisconsin and Missouri was

ceded to the United States in exchange for certain payments

and guarantees. In a series of treaties from 1804 through

1842, the Sac and Fox ceded other portions of their lands

to the United States in exchange for payments, annuities

and services.

Jn 1842 the Sae and Fox Tribe ceded all its land west of

the Mississippi River (which includes the present Tama

tract in Iowa to the United States and agreed to move to

a reservation located in what is now the state of Kansas.

The move was to be accomplished within three years after

the treaty date.? Many members of the Fox Tribe and some

members of the Sac Tribe who agreed to move to the reser-

vation in Kansas pursuant to the 1842 treaty became dis-

satisfied with the Kansas reservation and returned to Iowa.°

*The Treaty of Oct. 11, 1842, 7 Stat. 596 (1846), provides in

part:

The confederated tribes of Saes and Foxes cede to the

United States, forever, all the lands west of the Mississippi

river, to which they have any claim or title, or in which they

have any interest whatever; reserving a right to occupy for

the term of three years from the time of signing this treaty,

all that part of the land hereby ceded which lies west of a

line running due north and south from the painted or red

rocks on the White Breast fork of the Des Moines river, which

rocks will be found about eight miles, when reduced to a

straight line, from the junction of the White Breast with the

Des Moines.

* As noted earlier, the only factual issue in the instant case was

whether some Sac and Fox Indians remained in Iowa between

1845 and 1856. Although the district court found the resolution

of this issue unnecessary to its decision of the instant case, an

10a

In 1856 the lowa legislature consented to the continued

residence of the Sac and Fox then in Towa and urged the

United States to pay these Indians their proportionate

annuities under the various treaties with the Sac and Fox

Tribe. 1854-1857 Towa Laws ch, 30 (Sth Extra Gen, Assem-

bly). The Tribe purchased a small tract of land in 1857 and

title was taken by the governor of Towa in trust for the

Tndians,

In 1865 the federal government sent an Indian agent to

Towa to supervise the Tribe. In 1867 Congress approved

the payment of the 1842 treaty annuities to the Tribe in

Towa “so long as they are peaceful and have the assent of

the government of Towa to reside in that State.” Act of

Mar. 2, 1867, ch. 173, 14 Stat. 492, 507 (1868), Additionally

in 1867 another treaty was negotiated with the Sac and

Fox Tribe which required each absent member to move onto

the reservation in the Indian Territory or lose his right to

funds arising under all treaties with the Sac and Fox. The

Tribe in Towa was specifically exempted from this require-

ment. Treaty of Oct. 14, 1868, 15 Stat. 495, 504 (1869).

Between 1856 and 1896,’ the Tribe aequired more land in

Tama County with funds generated through the sale of

pelts and horses, charitable contributions, and treaty an-

nnities. By 1896, the governor of Towa held the title to

97%) acros of land in trust for the benefit of the Tribe, The

_ =e — ed

earlier decision had held that some seattered remnants had not

gone to the new reservation in Kansas but had remained in Towa

following the 1842 treaty, See In re Lelah-Puc-Ka-Chee, 98 F, 429,

431 (N.D, Towa 1899), It is clear that by 1856 some Sac and Fox

were oceuping land in Tama County, Towa, In any event, we are

in agreement with the district court that the resolution of this

factual issue is not essential to our analysis.

‘For a more detailed discussion of the history of the Tribe

during this period, see Mr, Justice Holmes’ discussion in Sac and

Fox Indians of the Mississippi in Iowa v, SAC and Fox Indians

of the Mississippi in Oklahoma, 220 U.S, 481, 482-90 (1911).

lla

Indian agent held the title to an additional 280 acres as

trustee for the benefit of the Tribe,

In 1896 lowa tendered exclusive jurisdiction over the

Tribe and their lands held in trust for them to the United

States, with the following exception:

Nothing contained in this act shall be so construed

as to prevent on any of the lands referred to in this act

the service of any judicial process issued by or return-

able to any court of this state or judge thereof, or ‘to

prevent such courts from exercising jurisdiction of

crimes against the laws of Towa committed thereon

either by said Indians or others, or of such crimes

committed by said Indians in any part of this state

1814-1897 Iowa Laws ch. 110 (26th Extra Gen. Assembly),

The United States accepted this tender, stating in part:

That the United States hereby accepts and assumes

Jurisdiction over the Sae and Fox Indians of Tama

County, in the State of Iowa, and of their lands in said

State, as tendered to the United States by the act of

the legislature of said State passed on the sixteenth

day of January, eighteen hundred and ninety-six, sub-

Ject to the limitations therein contained * * *,

Act of June 10, 1896, ch, 398, 29 Stat. 321, 331 (1897),

In 1937 the Tribe adopted a constitution and bylaws pur-

suant to the Indian Reorganization Act of 1934, 25 U.S.C,

$461 et seq. In 1948, Congress conferred concurrent erim-

inal jurisdiction on the state over offenses committed ‘by

or against Indians on the Sae and Fox Indian Reservation”

located in Towa, Act of June 30, 1948, ch. 759, 62 Stat. 1161."

—

*The Act of June 30, 1948, reads in pertinent part as follows:

That jurisdietion is hereby conferred on the State of Iowa

over offenses committed by or against Indians on the Sac and

12a

Finally in 1967, the Iowa Legislature acted to assume civil

jurisdiction over actions involving Indians arising ‘within

the Sac and I’ox Indian settlement in Tama county’’ to the

extent that such jurisdiction was available under the fed-

eral Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, 589, See

Towa Code § 1,12,

If,

The starting point for our analysis is the question of

whether the land in Tama County presently oceupied by

the Tribe is a reservation, Both the Tribe and the United

States contend it is, while the state of [Towa strenuously

argues to the contrary.

Aw previously stated, in the Treaty of Oct. 11, 1842, the

Sac and Fox Tribe ceded all its land west of the Mississippi

River (which ineludes the Tama tract) to the United States

and agreed to move to a reservation located in what is pres-

ently the state of Kansas. In this regard the language of

the treaty is unequivocal ;

The confederated tribes of Sacs and Foxes cede to

the United States, forever, all the lands west of the

Mississippi river, to which they have any claim or

title, or in which they have any interest whatever * * *.

Treaty of Oct, 11, 1842, 7 Stat. 596 (1846). Tt is clear from

the treaty language that at least by 1845, when the Sne and

ore Camemewes~ a ee

I’ox Indian Reservation in that State to the same extent as

its courts have jurisdiction generally over offenses committed

within said State outside of any Indian reservation; Provided,

however, That nothing herein contained shall deprive the

courts of the United States of jurisdiction over offenses de-

fined by the laws of the United States committed by or against

Indians on Indian reservations.

This court has recently interpreted this statute in Youngbear v.

Brewer, 549 V.2d 74 (8th Cir, 1977), as preserving exclusive

federal jurisdiction over offenses defined in 18 U.S.C, § 1153 (Fed-

eral Major Crimes Act), and as granting the state of Iowa juris-

diction over all other offenses,

l3a

Fox were required to be moved from the ceded land, no

reservation existed in Iowa.

It is equally clear, however, that as early as 1865 the

United States began to treat the Tama tract occupied by

the Tribe as a de facto reservation. Cf. Matte v. Arnett,

412 U.S, 481, 490 (1973). For example, in 1865 the federal

government sent a special Indian agent to Tama and estab-

lished a special agency for the Tribe, which continues to the

present date, In the Aet of Mar, 2,.1867, the United States

approved the payment of the 1842 treaty annuities to the

Tribe in Iowa. Furthermore, in the Treaty of Oct. 14, 1868,

the tribal members living in Iowa were explicitly excepted

from the requirement of rejoining the full Sae and Fox

Tribe, From at least 1874, the Bureau of Indian Affairs

expended money for the education of members of the Tribe,

including the construction of a boarding school in Toledo,

Iowa, These early actions by the federal government dem-

onstrate that the United States recognized the Tribe in

Towa and dealt with them comparably to the Sac and Fox

located on the Kansas reservation.

Any doubt was eliminated by the federal government in

1896, when the United States accepted and assumed ‘‘juris-

diction over the Sac and Fox Indians of Tama County”’

and their land, Act of June 10, 1896, ch, 398, 29 Stat. 321,

331 (1897). As one court stated in 1901;

[I]t must be held that the Indians residing in Tama

county are tribal Indians residing on lands purchased

for their benefit with the consent of the state, which

lands constitute a reservation, under the control of the

United States as in all matters pertaining to the do-

mestic relations of the Indians, and, furthermore, that

their status as tribal Indians is not based upon the

act of the general assembly of Iowa just cited, but

grows out of the fact that they are a part of the con-

federated tribes of Sacs and Foxes, between whom and

the national government the relation of wards or de-

pendents had been recognized and existed long before

l4a

the state of Iowa was organized, and which condition

of dependency has never been changed by any act of

the national government.

Peters v. Malin, 111 F. 244, 251 (C.C.N.D. Iowa 1901).

Since 1897, the Bureau of Indian Affairs has expended

funds for the Tribe in the areas of social services, land

management, employment assistance, health services, in-

cluding water and sanitation, police services, and education.

Finally, in the Act of June 30, 1948, Congress specifically

referred to the Tama tract when it spoke of ‘‘offenses com-

mitted by or against Indians on the Sac and Fox Indian

Reservation * * *.’? (Emphasis added.)

The state argues that the Tama tract cannot be a reser-

vation since no specific treaty, statute or executive order

has created a reservation. However, as stated years ago by

the Supreme Court:

|I|n order to create a reservation it is not necessary

that there should be a formal cessation or a formal act

setting apart a particular tract. It is enough that from

what has been done there results a certain defined tract

appropriated to certain purposes.

Minnesvta v. Hitchcock, 185 U.S. 373, 390 (1902). See

United States v. White, 508 F.2d 453, 456-57 (8th Cir. 1974).

Thus, we are persuaded that the land located in Tama

County and occupied by the Tribe constitutes an Indian

reservation.®

°The district court held below that the tract is ‘‘ Indian Coun-

try’’ within the meaning of 18 U.S.C. § 1151. The Iowa Supreme

Court has also held the tract to be ‘‘Indian Country’’ in light of

its finding that this land was set apart for the use and occupancy

of Indians. State v. Youngbear, 229 N.W.2d 728, 732 (Iowa), cert.

denied, 423 U.S. 1018 (1975). As discussed later in this opinion,

we are persuaded that whatever label is placed on the tract, the

relevant inquiry must still focus on the applicable treaties and

statutes.

15a

IIT.

The resolution of the ‘‘reservation”’ question, however

does not terminate this court’s inquiry. In our opinion we

must further look to the applicable treaties and statutes to

determine the limit of the state’s power on the Tama res-

ervation.

A state has initial authority to regulate the taking of fish

and game by reason of its police power. Geer v. Connecti-

cut, 161 U.S. 519 (1896). The federal government, however

may preempt state control over fish and game by exceuting

a valid treaty. Asakura v. City of Seattle, 265 U.S, 332, 341

(1924); Missouri v. Holland, 252 U.S. 416, 432 (1920),

‘Consequently, the state may enact and enforce no statute

or regulation in conflict with treaties in force between the

United States and the Indian nations.’’ United States v.

State of Washington, 520 F.2d 676, 684 (9th Cir. 1975), cert.

denied, 423 U.S. 1086 (1976). In the instant case the issue is

whether the federal government, through treaties and stat-

utes, has preempted Iowa’s regulation of the Tribe’s hunt-

ing, fishing and trapping on the Tama reservation.

It is important to note at the outset that the relevant

treaties and statutes are to be read with the tradition of

Indian sovereignty in mind. McClanahan v. Arizona State

Tax Comm’n, 411 U.S. 164, 173 (1973). The Indian sover-

eignty doctrine can be traced to Worcester v. Georgia, 31

U.S. (6 Pet.) 515, 560 (1832), where Mr. Chief Justice

Marshall stated the following vis-a-vis Georgia’s power

over the Cherokee nation:

The Cherokee nation, then, is a distinct community,

occupying its own territory, with boundaries accurately

described, in which the laws of Georgia can have no

force, and which the citizens of Georgia have no right

to enter, but with the assent of the Cherokees them-

selves, or in conformity with treaties, and with the acts

of congress.

l6a

Several decades later the Indian sovereignty doctrine with

its concomitant jurisdictional limit on the reach of state

law was articulated by the Supreme Court as follows:

The power of the General Government over these

remnants of a race once powerful, now weak and di-

minished in numbers, is necessary to their protection,

as well as to the safety of those among whom they

dwell. It must exist in that government, because it

never has existed anywhere else, because the theatre

of its exercise is within the geographical limits of the

United States, because it has never been denied, and

because it alone can enforce its laws on all the tribes.

United States v. Kagama, 118 U.S. 375, 384-85 (1886).

The Indian sovereignty doctrine, however, has not re-

mained static over the years. As Mr. Justice White stated:

Generalizations on this subject have become particu-

larly treacherous. The conceptual clarity of Mr. Chief

Justice Marshall’s view in Worcester v. Georgia, 6 Pet.

515, 556-561 (1832), has given way to more individual-

ized treatment of particular treaties and specific fed-

eral statutes * * * as they, taken together, affect the

respective rights of States, Indians, and the Federal

Government.

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973). |

See Organized Village of Kake v. Egan, 369 U.S. 60, 71-76

(1962). The doctrine’s evolution was further described in

another case by Mr. Justice Marshall, as follows:

Finally, the trend has been away from the idea of

inherent Indian sovereignty as a bar to state jurisdic-

tion and toward reliance on federal pre-emption. * * *

The modern cases thus tend to avoid reliance on pla-

tonic notions of Indian sovereignty and to look instead

to the applicable treaties and statutes which define the

limits of state power. Compare, e.g., United States v.

17a

Kagama, 118 U.S. 375 (1886), with Kennerl istri

, . . . ; D

Court, 400 U.S. 423 (1971), is ditiaiiatsinss

McClanahan v. Arizona State Tax Comm’n

, , supra, 411 U.S.

at 172 (footnotes omitted). vies si

In turning to the treaties and statutes before us, it must

be remembered that although we have earlier stated that

the Tama tract is in fact a reservation, we so held because

of the various actions taken by the federal government in

relation to the Tribe. It is abundantly clear that the reser-

vation was not created by a specific treaty. Therefore, some

of the maxims to be applied in the interpretation of treaties

with Indian tribes are generally inapplicable here.’

As stated earlier, the Treaty of Oct. 11, 1842, is unequiv-

ocal in that the confederated tribes of Sacs and Foxes

ceded to the United States all the lands west of the Missis-

sippi River in which they had any claim or title or interest.

The treaty further called for the complete relocation of the

confederated tribes to a reservation in what is now the state

of Kansas. We are persuaded that by this treaty the con-

"For example, treaties with the Indians must be interpreted as

they would have understood them. Choctaw Nation v. Oklahoma,

397 US. 620, 631 (1970); United States v. Shoshone Tribe of

Indiana, 304 U.S. 111, 116 (1938). Doubtful expressions are to be

resolved in favor of the Indians. Oliphant v. Suquamish Indian

Tribe, No. 76-5729, slip op. at 16 n.i7 (U.S. March 6, 1978);

Bryan v. Itasca County, Minn., 426 U.S, 373, 392 (1976); Mc.

Clanahan v. Arizona State Tar Comm’n, supra, 411 US. at 174;

Carpenter v. Shaw, 280 U.S. 363, 367 (1930). Finally, treaties are

to be construed ‘“‘in a spirit which generously recognizes the full

obligation of this nation to protect the interests of a dependent

people.’’ Tulee v. Washington, 315 U.S. 681, 684-85 (1942). See

also Choctaw Nation of Indians v. United States, 318 U.S, 423. 432

(1943), It is also true that some of these maxims are applied in

the interpretation of federal statutes. See Antoine v. Washington,

420 US. 194, 199 (1975). In the instant case we have applicd the

pertinent interpretive maxims to the congressional actions in

question.

18a

federated tribes relinquished their aboriginal rights to hunt

and fish on the present Tama reservation.

The United States contends, however, that the Tribe’s

hunting, fishing and trapping rights were necessarily re-

juvenated as a result of the subsequent creation of the

Tama reservation. Congressional actions following the

1842 treaty convince us otherwise. For example, in 1867

Congress approved the payment of the 1842 treaty annui-

ties to the Tribe ‘‘so long as they are peaceful and have the

assent of the government of Iowa to reside in that State.’’

Act of Mar. 2, 1867, ch. 173, 14 Stat. 492, 507 (1868). Al-

though the scope of lowa’s control and jurisdiction over

the Tribe are not clear from this language, it is apparent

that at least in 1867 Congress contemplated some control by

Iowa over the Tribe.

It is important that in 1896 Iowa tendered exclusive juris-

over the Tribe and their lands to the United States with

the proviso that ‘‘{nJothing contained in this Act shall be

so construed as * * * to prevent such [Iowa] court from

exercising jurisdiction of crimes against the laws of Iowa

committed [on the Tribe’s land] * * *.’’ 1894-1897 Iowa

Laws ch. 110 (26th Extra Gen. Assembly). The federal gov-

ernment accepted this tender of jurisdiction pursuant to

the act of the Iowa legislature ‘‘subject to the limitations

therein contained.’’ Act of June 10, 1896, ch. 398, 29 Stat.

321, 331 (1897). In construing these two acts, a federal

court has stated:

[A]s it was clearly contemplated that these Indians

would continue to reside as a tribe upon their lands in

Tama county, and would be brought in some respects

into contact with the people of Iowa, it was deemed

wise and proper to reserve, for the protection of the

latter, jurisdiction in certain particulars over the lands

of the reservation, and jurisdiction to punish crimes

against the people of Iowa; and these are the purposes

of section 3 of the act, which reserves to the state * * *

19a

jurisdiction in the courts of the state over crimes

against the laws of Iowa committed on the reservation

by Indians * * *.

The state of Iowa has the right to exercise its police

power for the protection of its own citizens, but it

cannot regulate the affairs of the tribal Indians in their

relations to each other, for in these relations the In-

dians are under the control and protection of the na-

tional government.

Peters v. Malin, supra, 111 F. at 253-54, 255.

A fair reading of the two acts leads us to the conclusion

that in 1896 Congress consented to Iowa’s jurisdiction over

crimes committed on the Tama tract by members of the

Tribe. Although the United States argues that violation of

state fish and game laws are ‘‘victimless’’ crime at most,

we are constrained to find that nevertheless they are still

crimes.*®

Finally, we are convinced that this court’s recent deci-

sion in Youngbear v. Brewer, supra, supports our holding

in the instant cave. In Youngbear, we affirmed the lower

court’s decision * that in the Act of June 30, 1948, Congress

granted jurisdiction generally to the state of Iowa over

crimes committed by or against Indians on the Tama reser-

vation, with the exception of those crimes listed in 18 U.S.C.

§ 1153 (Federal Major Crimes Act). As to those crimes, the

federal courts retained exclusive jurisdiction. Because a

violation of Iowa’s fish and game laws does not fall within

the exception noted above, it follows that Congress has

recognized Iowa’s jurisdiction to enforce its fish and game

laws on the Tama reservation.

® Violations of the Iowa fish and game laws can result, upon

conviction or a plea of guilty, in a $100 fine or 30 days in jail.

See Iowa Code §§ 109.32, 109.119.

° See Youngbear v. Brewer, 415 F. Supp. 807 (N.D. Iowa 1976).

=

20a

The Tribe argues that Menominee Tribe of Indians v.

United States, 391 U.S. 404 (1968), requires that statutes

affecting jurisdiction over reservation Indians must specif-

ically address hunting, fishing and trapping rights before

they are affected. In that case the Supreme Court held that

the Menominee Tribe was granted a reservation in Wiscon-

sin by the Treaty of Wolf River in 1854, which included

hunting and fishing rights. The Court further held that

these rights were not extinguished by the Menominee In-

dian Termination Act of 1954, 68 Stat. 250, as amended, 25

U.S.C. §§ 891-902, even though the purpose of this Act was

to end all federal supervision of the tribe and to substitute

in its place state jurisdiction. The Court so held because

of another statute passed by the same Congress, Public

Law 280, 67 Stat. 588, as amended, 18 U.S.C. § 1162, which

provided that: ‘‘Nothing in this section * * * shall deprive

any Indian or any Indian tribe, band, or community of any

right, privilege, or immunity afforded under Federal

treaty, agreement, or statute with respect to hunting, trap-

ping, or fishing or the control, licensing, or regulation

thereof.’’ (Emphasis added.)

In the instant case Congress did not specifically exempt

the Tribe’s hunting, fishing and trapping rights from state

jurisdiction as it did in respect to all Indian country within

the state of Wisconsin in 18 U.S.C. § 1162. To the contrary,

Congress, in the Act of June 30, 1948, has given the state of

Towa jurisdiction over crimes committed by Indians on the

Tama reservation with the exception of the major crimes

listed in 18 U.S.C. § 1153. As the Supreme Court’s conclu-

sion in Menominee was based largely on 18 U.S.C. § 1162,

we do not find Menominee controlling.

In summary, we are persuaded that the federal govern-

ment has created through its various actions, with the

10 See Kimball v. Callahan, 493 F.2d 564, 567-69 (9th Cir.),

cert. denied, 419 U.S. 1019 (1974).

2la

statutory consent and cooperation of the state of Iowa, a

de facto reservation in Tama County, Iowa. The resolu-

tion of this issue, however, does not end our inquiry, for

a state’s power on a reservation is determined by the ap-

plicable treaties and statutes. Our reading of the 1842

treaty convinces us that the Tribe yielded up ‘ts zboriginal

rights to hunt, fish and trap on the land. Furthermore, by

statute, Congress acceded to Iowa’s statutory withholding

of jurisdiction over all crimes agaifist the state, except

those enumerated in the Federal Major Crimes Act. By its

legislative actions, we are persuaded that Congress has

recognized the state of Iowa’s jurisdiction to enforce its

fish and game laws on the reservation.

[t is important to note that our decision today does not

prevent the tribal members from hunting, fishing and trap-

ping on the reservation. The tribal members, like other

Iowa landowners, may in general hunt on their own land

without purchasing a license, subject to laws governing

seasons and limits. We only hold that the state may en-

force its fish and game laws on the reservation in the same

manner in which it enforces Iowa’s fish and game laws

against any Iowa landowner.

Accordingly, we affirm the judgment of the district court.

Affirmed.

A true copy.

Attest:

Cierk, U.S. Court or Apprats, Eicutx Circuit.

22a

(Carrion Omitrep IN PRINTING)

Order Denying Rehearing

Petition of appellant for rehearing filed in this cause

having been considered, it is now here ordered by this

Court that the same be, and it is hereby, denied.

June 7, 1978

Act of the Sixth Iowa General Assembly, c. 30, July 15, 1856

Section 1. Consent of the state given—for Sacs and

Foxes, to reside in the state—annuities. That the consent

of the state is hereby given that the Indians now residing

in Tama county known as a portion of the Sacs and Foxes,

be permitted to remain and reside in said state, and that

the governor be requested to inform the secretary of war

thereof, and urge on said department, the propriety of

paying said Indians their proportion of the annuities due

or to become due to said tribe of Sacs and Fox Indians.

Sec. 2. Census—list filed. That the sheriff of said county,

shall as soon as a copy of this law is filed in the office of

the county court proceed to take the census of said Indians

now residing there giving their names, and sex, which said

list shall be filed and recorded in said office, the persons

whose names are included in said list shall have the priv-

ileges granted under this act, but none others shall be con-

sidered as embraced within the provision of said act.

Src. 3. Take effect. This act shall take effect from and

after its publication in the lowa Capital Reporter and Towa

Capital Reporter and Towa City Republican published at

Iowa City.

23a

Act of the Twenty Sixth lowa General Assembly,

c. 110, Feb. 14, 1896

United States to have the jurisdiction of lands owned

by Indians.

Section 1. That, except as hereinafter provided, exclu-

sive jurisdiction ef the Sac and Fox Indians residing in

Towa and retaining the tribal relation, and of all other

Indians dwelling with them, and of all lands now or here-

after owned by or held in trust for them as a tribe, be and

the same is hereby tendered to the United States, and that,

as soon as the United States shall accept and assume such

jurisdiction, all such jurisdiction on the part of the state of

Iowa shall cease.

United States may purchase lands for schools.

Sec. 2. Consent is hereby given to the United States to

purchase any land in Tama county to be used for and in

connection with any school or schools to be established and

managed by federal authority for the education of said

Indians.

Courts may exercise jurisdiction in criminal cases.

Sec. 3. Nothing contained in this act shall be so construed

as to prevent on any of the lands referred to in this act the

service of any judicial process issued by or returnable to

any court of this state or judge thereof, or to prevent such

courts from exercising jurisdiction of crimes against the

laws of Iowa committed thereon either by said Indians or

others, or of such crimes committed by said Indians in any

part of this state or to prevent the establishment and main-

tenance of highways and the exercise of the right of emi-

nent domain under the laws of this state over lands now

or hereafter owned by or held in trust for said Indians, or

to prevent the taxation of said lands for state, county,

bridge, county road, and district road purposes, and such

24a

a

other purposes as the general assembly may from time to

time by special statute provide.

Lands may be taxed.

Sec. 4. This act being of immediate importance shall take

effect from and after its publication in the Iowa State

Register and the Des Moines Leader, newspapers printed

and published in Des Moines, Lowa.

Approved I'eb. 14th, 1806.

25a

Act of June 10, 1896, c. 398, 29 Stat. 321, 331

That the United States hereby accepts and assumes ju-

risdiction over the Sae and Fox Inaians of Tama County,

in the State of Iowa, and of their lands in said State, as

tendered to the United States by the act of the legislature

of said State passed on the sixteenth day of January,

eighteen hundred and ninety-six, subject to the limitations

therein contained; and the United States Indian agent of

the Sac and Fox Agency, Iowa, and the governor of the

State of Iowa, respectively, are hereby authorized to trans-

fer by deed of conveyance, for the use and benefit of said

Indians, the legal title held by them in trust, respectively,

and the trusteeship of the lands of the Sac and Fox Indians

of Tama County, Iowa, to the Secretary of the Interior

and his successors in office.

Act of June 30, 1948, ch. 759, 62 Stat. 1161

Aw Act

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That jurisdiction is hereby conferred on the State of

Towa over offenses committed by or against Indians on the

Sac and Fox Indian Reservation in that State to the same

extent as its courts have jurisdiction generally over offenses

committed within said State outside of any Indian reserva-

tion: Provided, however, That nothing contained shall de-

prive the courts of the United States of jurisdiction over

offenses defined by the laws of the United States committed

by or against Indians on Indian reservations.

Approved June 30, 1948.