Petition for Writ of Certiorari — South Dakota v. Yankton Sioux Tribe

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“our, U.S.

. FILED.

S 961581 aR 71997

No.

—O6SIGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

STATE OF SOUTH DAKOTA,

Petitioner,

YANKTON SIOUX TRIBE, a federally recognized

tribe of Indians, and its individual members;

DARRELL E. DRAPEAU, individually, a member

of the Yankton Sioux Tribe,

Respondents,

and

SOUTHERN MISSOURI WASTE MANAGEMENT

DISTRICT, a nonprofit corporation,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Mark W. Barnett

Attorney General

State of South Dakota

Counsel of Record

JouN Patrick GUHIN

Deputy Attorney General

500 East Capitol Avenue

Pierre, SD 57501-5070

Telephone: (605) 773-3215

Counsel for Petitioner

—__—_—_—_—_—_—————————————___.....................{.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

WHETHER THE YANKTON SIOUX RESERVATION HAS

BEEN DISESTABLISHED OR DIMINISHED BY VIRTUE

OF AN 1894 ACT ADOPTING A “CESSION AND SUM

CERTAIN” AGREEMENT BETWEEN THE YANKTON

SIOUX TRIBE AND THE UNITED STATES AND BY VIR-

TUE OF ITS CENTURY LONG TREATMENT AS DISES-

TABLISHED OR DIMINISHED.

Page

QUESTION PRESENTED. ..........-2--eeeeeeeeeeee i

TABLE OF AUTHORITIES.............:60 50 eeeuee iii

OPINIONS DELOW, on ccccccccccccvcccescscvcconens 1

JURISDICTIONAL STATEMENT...............+-455 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED «0... ccccccsccctccccvceneceves 1

STATEMENT OF THE CASE.............-0eeeeeee 1

REASONS FOR GRANTING THE WRIT ........... 11

I. THE DECISION OF THE DIVIDED PANEL OF

THE COURT OF APPEALS SQUARELY CON-

FLICTS WITH THE SUBSEQUENT DECISION

OF THE UNANIMOUS SOUTH DAKOTA

SUPREME COURT ON AN IMPORTANT QUES-

TION OF FEDERAL LAW...............++555- 12

Il. THE DIVIDED OPINION CONFLICTS WITH

THIS COURT’S DIMINISHMENT JURISPRU-

II oi vicccctcccettecssudvbecnddeun Mauna 15

Ill. THIS CASE RAISES ISSUES OF NATIONAL

TPO TAIGS. cv cncvcccccessedspeeehuneceken) 28

COINCLARIIY 6b cccicccccvccvecttechénncteadnebees 30

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

Page

Cases Crrep:

Antoine v. Washington, 420 U.S. 194 (1975)........... 28

Asarco, Inc. v. Kadish, 490 U.S. 605 (1989)............ 13

Braxton v. United States, 500 U.S. 344 (1991)......... 13

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989).......... 29

Cihak v. United States, 232 F. 551 (8th Cir. 1916)..... 25

County of Yakima v. Confederated Tribes and Bands of

the Yakima Indian Nation, 502 U.S. 251 (1992)...... 29

DeCoteau v. District County Court, 420 U.S. 425 -

(REET Raden Rede beh ee BAWe enedccoseccecavevece passim

Forman v. United States, 256 F.2d 766 (8th Cir. 1958) .... 24

Hagen v. Utah, 510 U.S. 399 (1994) .............. passim

Johnson v. Gearlds, 234 U.S. 422 (1914)............... 28

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) .... 27

Montana v. United States, 450 U.S. 544 (1981) .. 8, 10, 20

Oregon 't of Fish and Wildlife v. Klamath Indian

PEE WE SEU ccc cccececicccscccencees 21

Perrin v. United States, 232 U.S. 478 (1914)....9, 11, 27, 29

_ Primeaux v. Lee, 74 F.3d 1243 (8th Cir. 1996), aff’g.

Primeaux v. Lee, #94-4022 (D.S.D. 1995)............ 25

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ... .passim

Solem v. Bartlett, 465 U.S. 463 (1984) ............ passim

TABLE OF AUTHORITIES — Continued

Page

South Carolina v. Catawba Indian Tribe, 476 U.S. 498

CRIED o.oo cpnies 6 ents adam ones cages nkeabaeeeddsinaines 21

South Dakota v. Bourland, 508 U.S. 679 (1993)..... 17, 29

State v. Greger, 1997 S.D. 14... 0.66 cc cece eens passim

State v. Thompson, 355 N.W.2d 349 (S.D. 1984)..... 3, 12

State v. Williamson, 211 N.W.2d 182 (S.D. 1973)... .3, 12

State v. Winckler, 260 N.W.2d 356 (S.D. 1977)...... 3, 12

United States v. Forty-three Gallons of Whiskey, 93

CD, SE GU b kG 0 bc Sa ecivigdhbbas dS senyndd dices 27

United States v. Gerald Greger, 98 F.3d 1080 (8th Cir.

Bass ko 0 Adds hcde sb \ ekddede hdd badendedes ocx 3

United States v. Grey Bear, 828 F.2d 1286 (8th Cir.

1987), vacated on other nds on oe | en banc,

863 F.2d 572 (8th Cir. 1988), cert. denied, 493 US.

OUT Gens nk nnd cbtdoctdnnesnedeenebdendbsnes cas 17

United States v. Mazurie, 419 U.S. 544 (1975)......... 27

United States v. Nice, 241 U.S. 591 (1916)............ 28

United States v. Stands, 105 F.3d 1565 (8th Cir. 1997) .... 14

Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980) .... 24

Wood v. Jameson, 130 N.W.2d 95 (S.D. 1964) ......... 12

Yankton Sioux Tribe v. United States, 623 F.2d 159

CD. Ki Bin oa 0 h cbs 660606066 aeieins cannddvereaer 25

MISCELLANEOUS:

SS Comm, Rac. GES (IGDE). .... 2c cevcvescccccccesss 6, 18

53 Cong. Rec. 6426 (1894)... 0... 6.66. c cece eee eens 6, 18

Supreme Court Rule 10(a) ..............ccceeeeeeees 13

TABLE OF AUTHORITIES ~— Continued

Page

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PETITION FOR WRIT OF CERTIORARI

Petitioner, State of South Dakota, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit entered in the above-entitled proceeding

on October 24, 1996.

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Circuit is reported at 99 F.3d 1439 (8th Cir. 1996) and is

reprinted in the Appendix. App. 1-65.

The Memorandum Opinion and Order of the United

States District Court for the District of South Dakota is

reported at 890 F.Supp. 878 (D.S.D. 1995) and is reprinted

in the Appendix. App. 66-97.

JURISDICTIONAL STATEMENT

The judgment of the court of appeals was entered on

October 24, 1996. The State’s Petition for Rehearing and

Suggestion for Rehearing En Banc were denied on Janu-

ary 6, 1997. App. 98. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Treaty with the Yankton Sioux, 1858, ratified, 11 Stat.

743 (1859). App. 99.

Agreement with the Yankton Sioux or Dakota

Indians, in South Dakota, 1892, ratified, 28 Stat. 286, 314

(1894). App. 111.

STATEMENT OF THE CASE

A. Procedural background.

Southern Missouri Waste Management District (“Dis-

trict”) was formed to develop a regional landfill in

southeastern South Dakota. The District selected a site on

fee land owned by a non-Indian in Charles Mix County

and filed an application for a state solid waste permit

with the South Dakota Department of Environment and

Natural Resources. A three-day administrative hearing

was held before the state Board of Environment and

Natural Resources. The Yankton Sioux Tribe intervened

and participated in that hearing, without raising any

jurisdictional claims. See T 303-306. At the close of the

administrative hearing, the Board issued the District a

solid waste permit.

The Tribe filed an action in federal court pursuant to

28 U.S.C. § 1331, inter alia, requesting injunctive relief

halting construction of the District’s landfill, and request-

ing declaratory relief that the Tribe,’ and not the State,

had jurisdiction to regulate the facility because the land-

fill allegedly lay within the 1858 boundaries of the Yank-

ton Sioux Reservation. The State, brought into this action

by a third-party complaint filed by the District, asserted

that the 1858 reservation had been disestablished or

! The Tribe also asserted that the Environmental Protection

Agency (EPA) had jurisdiction over the landfill based on 40

C.F.R. Part 258 and on the fact that the EPA had not delegated

federal permitting and enforcement to the State over the area of

the landfill. The State’s solid waste plan had been approved,

and federal permitting and enforcement delegated, by the EPA

for all areas of the State, excluding certain “existing or former”

Indian reservations. 58 Fed. Reg. 52486-52489 (Oct. 8, 1993). The

district court noted, unremarkably, that the EPA retained its

federal powers until it delegated them to the state or tribe. App.

94. After the entry of the district court’s decision, the EPA

denied the State’s application for solid waste plan approval

over the area at issue here. 61 Fed. Reg. 48683-48686 (Sept. 16,

1996). The State has appealed this decision in a separate action

in district court.

diminished? as a matter of law, and de facto by treatment

of the area by all governments for the last 100 years.

The district court denied the Tribe’s injunctive relief,

App. 90, but declared that the Yankton Sioux Reservation

had not been disestablished or diminished. App. 89. The

State appealed that portion of the district court's decision

finding that the reservation had not been diminished or

disestablished.*

The court of appeals affirmed, in a 2-1 decision, while

acknowledging that its decision conflicted with prior

decisions of the South Dakota Supreme Court. Id. at 26

n.19.4 The State’s Petition for Rehearing and Rehearing

En Banc was denied, with Judges Magill, Loken and

Bowman dissenting. Id. at 98.5

2 The State has used the terms “disestablished” and

“diminished” interchangeably to mean that the former

reservation boundaries and status are terminated as in DeCoteau

v. District County Court, 420 U.S. 425, 427-28 (1975), and that

“Indian Country” status attaches only to remaining or non-

extinguished “allotments,” id. at 427 n.2; 18 U.S.C. § 1151(c), and

“dependent Indian communities.” 18 U.S.C. § 1151(b).

* The Tribe did not appeal the injunctive relief it had been

denied in district court.

* The court of appeals simultaneously decided United States

v. Gerald Greger, 98 F.3d 1080 (8th Cir. 1996) in which it found

federal criminal jurisdiction based on the case now before this

Court. Gerald Greger has indicated that he will not seek

certiorari. We also note *:at Gerald Greger is a different person

than Fred Greger who is involved in the state-federal court

conflict now before this Court. State v. Greger, App. 125.

5 Judge Wollman did not participate, presumably because

he had three times, while a member of the South Dakota

Supreme Court, found the Yankton Reservation diminished. See

State v. Williamson, 211 N.W.2d 182, 184 (S.D. 1973) (Wollman, J.

concurring specially); see also State v. Thompson, 355 N.W.2d 349

(S.D. 1984); State v. Winckler, 260 N.W.2d 356 (S.D. 1977). Judge

Subsequent to the denial of rehearing, a unanimous

South Dakota Supreme Court decided State v. Greger, 1997

S.D. 14, App. at 125-158, finding that the reservation had

been diminished, contrary to the decision of the Eighth

Circuit’s divided panel.

B. Critical historical developments.

In 1858, the United States entered into a treaty with

the Yankton Sioux Tribe by which the Tribe “cede[d] and

relinquish[ed]” certain lands. Id. at 100. In return, the

United States agreed to protect the Yankton Tribe “in the

quiet and peaceable possession” of a “tract of four hun-

dred thousand acres,”® id. at 102, and provided that no

“white person” except those in certain narrow categories

could reside upon this reservation. Id. at 108.

In 1887, Congress passed the General Allotment Act

(Dawes Act). 24 Stat. 388 (1887), codified at 25 U.S.C.

§ 331 et seq. Pursuant to the Act, and 26 Stat. 794 (1891),

tracts within the reservation were allotted to individual

Yankton Indians. In 1892, Congress enacted 27 Stat. 120,

136 (1892) which authorized funds “to enable the Secre-

tary of the Interior in his discretion to negotiate with any

Indians for the surrender of portions of their respective

reservations. .. . ” That same year, the United States

appointed the Yankton Indian Commission to negotiate

for the “cession” of the surplus lands of the Yankton

Indians. Ex. 605, S. Exec. Doc. No. 27, 53d Cong., 2d Sess.

at 7 (1894) (hereinafter “Negotiations”). During the nego-

tiations, the tribal and federal negotiators effectively

Wollman recused himself from the original panel assigned to

hear the case, and took no part in the rehearing process. App.

98.

6 The 1858 Treaty indicated the size of the reservation was

400,000 acres; after the 1858 Treaty was ratified, the United

States performed a land survey and determined it actually

contained 430,495 acres. T 40.

equated the pending cession agreement with the earlier

1858 cession which had resulted in the termination of

tribal authority and interest in a large block of the terri-

tory of the Tribe, see, e.g. id. at 54, 56, 58, 59, 66, 83. The

tribal and federal negotiators also equated the pending

cession with the contemporaneous Lake Traverse cession,

see id. at 54, 68, 71, which resulted in disestablishment.

See DeCoteau v. District County Court, 420 U.S. 425, 445

(1975).

A majority of the male tribal members and the Com-

mission ultimately reached an agreement. The first article

of the Agreement provided that the Tribe did “hereby

cede, sell, relinquish, and convey” to the federal govern-

ment “all their claim, right, title and interest” in “all the

unallotted lands” of the “reservation set apart to said

Indians as aforesaid.” App. 112-113. The majority below

indicated that approximately 206,000 acres were unallot-

ted and ceded at this time.” App. 9. The Tribe did not

itself retain a land base. Article I, App. 111-112; see also,

Art. Vill, App. 116. Article II of the cession agreement

provided for payment of a sum certain of “$600,000” to

the Tribe. Id. at 113. Article XVII of the Agreement pro-

hibited the sale of liquor on the ceded lands, despite the

fact that existing statutory law already prohibited the

introduction of alcohol into Indian country. Id. at 120.

Article XVIII, on which the Tribe’s argument has been

poised, provided that nothing in the present agreement

should be construed “to abrogate the treaty of April 19th,

1858,” that “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 that “the said

Yankton Indians shall continue to receive their annuities

under the said treaty of April 19th, 1858.” Id.

7 The majority relied on the Court of Claims’ figure of

200,000 acres; other evidence indicates 168,000 acres were

unallotted and ceded. See, e.g., Negotiations, at 7.

In the 1894 Act ratifying the 1892 agreement, Con-

gress included a provision which provided that the “six-

teenth and thirty-sixth sections in each Congressional

township . . . shall be reserved for common-school pur-

poses and be subject to the laws of the State of South

Dakota.” Id. at 123. During the debates, congressmen

indicated that the lands in this and other agreements

would be returned to the “public domain,” see Ex. 669, 53

Cong. Rec. 6425 (1894) (Rep. McRae); id. at 6426 (Rep.

Hermann). Another congressman stressed that Congress

should honor the 1892 agreement and the others made at

the time as “treaties, just as all other cessions of land

have been.” Id. at 8268 (Rep. Pickler).

In 1895, President Cleveland opened the reservation.

His Proclamation stated that the Yankton Indians had

“ceded, sold, relinquished and conveyed 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 by the 1858 agreement. 29 Stat. 865 (1895).

After the Presidential Proclamation, the State

assumed civil and criminal jurisdiction over the opened

lands. The majority acknowledged, for example, that

“state government has quite consistently exercised var-

ious forms of governmental authority over the opened

lands on the Yankton reservation. State courts have exer-

cised criminal jurisdiction over Indians on non-trust

lands without objection from the tribe until recently.”

App. 38. The majority also found “the Tribe presented no

evidence that it attempted until recently to exercise civil,

regulatory, or criminal jurisdiction over nontrust lands”

(emphasis added). App. 39. Similarly, the dissent found

that “South Dakota has exercised civil and criminal juris-

diction over tribal members in the ceded land for the last

century.” Id. at 62. See also T 318, 330-331.

At present, nine percent of the area within the 1858

boundaries is trust land, see App. 42, n.25; as illustrated

by the map at App. 159% and 1990 federal census data

indicates that non-Indians constitute over two-thirds or

68 percent of the population. Id. at 42; Ex. 614.

C. Proceedings below.

The district court’s opinion finding the reservation

not to have been diminished relied almost entirely on

Article XVIII. The district court found that Article XVIII,

when read with the “clear cession and sale clauses of

Articles I and II, creates an internal inconsistency in the

1892 Agreement.” Id. at 81-82. The district court found

itself bound to construe the “ambiguity in favor of the

Tribe” and thus found that the effect of Article XVIII was

to “incorporate by reference the exterior boundaries of

the Yankton Sioux Reservation as set out in the 1858

treaty.” Id. at 82. The district court nonetheless found that

the Tribe had presented “no evidence that, since 1894, the

Tribe has exercised civil jurisdiction, particularly environ-

mental regulation, over Indians or non-Indians beyond its

trust lands” (emphasis added). Id. at 88.

A divided court of appeals affirmed. The most critical

facet of the majority’s opinion is its treatment of the

“cession and sum certain” arrangement of Articles I and

Il of the Yankton Agreement. This Court has found that

such an arrangement creates an “almost insurmountable

presumption,” Solem v. Bartlett, 465 U.S. 463, 470-71

(1984), or a “nearly conclusive presumption,” Hagen v.

Utah, 510 U.S. 399, 411 (1994) of diminishment. As

pointed out by the dissenting opinion, however, “the

* App. 159 is a reduced reproduction of a land status map

generated by the BIA after the district court’s decision. A

different coloration has been used here for clarity. The original!

map was introduced as Exhibit 906 in the Greger litigation in

state court. (We understand that the phrase “Tribal fee-to-trust

land” uses, in the Legend (the purple lands) was intended to

denote lands owned by the tribe in fee for which trust

applications had been made.)

majority never acknowledges that the presumption of

diminishment exists, nor does it hold that the presump-

tion of diminishment has somehow been rebutted.” App.

47-48.

Relying on a prior decision of the circuit court as to a

North Dakota reservation, the majority first implied that

the Article I “cession” language, standing alone, did not

evince a clear congressional intent to disestablish. Id. at

14. The majority then turned to Article II’s “sum certain”

language and found that its history did not indicate an

intent to diminish the reservation. Id. at 14-16.

Having reduced the “cession and sum certain” lan-

guage of Articles I and II to insignificance, the majority

noted that “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.” Id. at 16. The majority omitted all reference

to South Dakota’s argument that diminishment had been

acknowledged by this Court despite equally strong sav-

ings language in two agreements with the Crow Tribe. See

DeCoteau, 420 U.S. at 439 n.22; Montana v. United States,

450 U.S. 544, 548 (1981). The majority held that because

the language of Article XVIII was “unusually expansive,”

the other sections of the 1892 agreement “should be read

narrowly to minimize any conflict with the 1858 treaty.”

App. 17. The majority concluded that

[a]lthough 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.

Id. at 20. The majority rejected the State’s argument that

the specific provisions within Article XVIII for the contin-

uation of “annuities under said treaty of April 19, 1858”

indicated that a narrower reading was to be given to the

Article. Id. at 17-18.

OE Se Se ee

The majority in addition rejected the State’s argu-

ments, based on parallel legal conclusions adopted in

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), that

diminishment was indicated by a provision in the Yank-

ton Agreement regarding the sale of liquor on ceded

lands, see Rosebud, 430 U.S. at 613, contrast App. 23-24,

and by a provision in the Act adopting the Yankton

Agreement which reserved Sections 16 and 36 of the

ceded lands as school land. See Rosebud, 430 U.S. at

599-601, contrast App. 24-25.

The majority rejected, by footnote, the State’s argu-

ments based on the treatment of the reservation dimin-

ished by this Court in Perrin v. United States, 232 U.S. 478

(1914) and by the court of appeals and the court of claims.

See, App. 25, n.18. The majority cited three of the four

cases of the South Dakota Supreme Court finding dises-

tablishment but summarily rejected their analysis in a

one-paragraph footnote. Id. at 26, n.19. The majority

labeled the contemporaneous and recent history pre-

sented in the record as not “ ‘fully consistent with an

intent to terminate the reservation. ...’” App. 39; see also

id. at 40-43 (finding no de facto diminishment).

Judge Magill dissented. Relying upon Solem, 465 U.S.

at 470-71 and DeCoteau, 420 U.S. at 447-478, Judge Magill

found that 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.” App. 47. The dissent stated that the task

of the court was to determine if the proponent of contin-

ued reservation status had “successfully rebutted this

presumption of diminishment,” id. (footnote omitted),

and found that the

majority . . . never makes this critical analysis.

Indeed, the majority never acknowledges that

the presumption of diminishment exists, nor

does it hold that the presumption of diminish-

ment has somehow been rebutted.

Id. at 47-48 (footnote omitted).

The dissent rejected the majority’s analysis of Arti-

cles I and II and its inappropriate reference to legislative

history which did not, in any event, support the major-

ity’s argument. The dissent found that the majority had

failed “to recognize that the language actually chosen by

Congress is the best indication of its intent.” Id. at 49. The

dissent asserted that 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.” Id.

The dissent also rejected the majority’s construction

of the Article XVIII savings clause, finding that this Court

had found diminishment “despite similarly ‘strong’ — if

less verbose — savings clauses” in Montana, 450 U.S. at

548, and DeCoteau, 420 U.S. at 446. App. 50, n.31. The

dissent found that literal interpretation of Article XVIII

would “eviscerate the 1894 Act, nullifying its chief provi-

sions and contradicting its entire purpose.” Id. at 51. In

particular, the Treaty of 1858 provided that the Yankton

Indians would not be dispossessed of their lands and

white settlers would not be allowed within the 1858

boundaries; the “undisputed purpose” of the 1894 agree-

ment however, was to obtain Yankton Indian lands for

white settlement, id. at 53, and to allow white persons on

those lands. Id. at 52-53.

The dissent rejected the majority’s approach to the

ambiguity issue, relying upon this Court's holding in

DeCoteau, 420 U.S. at 447, that “ ‘[a] canon of construction is

not a license to disregard clear expressions of tribal and con-

gressional intent.” App. 54, n.33 (emphasis by dissent).

Because there was “no ambiguity in Articles I and II,”

Article XVIII could not overcome the clear expression of

intent to diminish in Articles I and II. Id.

The dissent concluded that the majority’s interpreta-

tion of Article XVIII was based “neither on the text -

which referred only to annuities - nor the legislative

history of the 1894 Act, and has as its source only, as best I

can discern, a single-minded desire to avoid diminishment at

all costs.” Id. at 55-56 (emphasis added). Based on the

specific reference to annuities in Article XVIII, the legisla-

tive history and testimony of the historian retained by the

Tribe, the dissent concluded that the purpose of Article

XVIII was to protect annuities. Id. at 51-56.

The dissent found support for diminishment in Arrti-

cle XVII of the 1894 Act, noting that the inclusion of the

liquor prohibition was indicative of diminishment

“because standing law had already prohibited the intro-

duction of alcohol into Indian country” (id. at 56); in the

reservation of Sections 16 and 36 of the congressional

townships for common schools (id. at 57-58); and in

“striking passages” in the legislative history which indi-

cated the “termination of tribal governance.” Id. at 59.

Finally, the dissent found substantial support for

diminishment in the jurisdictional history of the area,

noting the area’s treatment as nonreservation “for the

past century” by the state courts, id. at 62, and the failure

of the Tribe to exercise jurisdiction beyond its trust lands.

Id. The dissent also noted the longstanding treatment of

the federal courts of the area as diminished, beginning

with this Court’s 1914 decision in Perrin. Id. at 63-64.

Following the decision of the court of appeals and

the denial of rehearing and rehearing en banc, the South

Dakota Supreme Court issued its decision in Greger, id. at

125-158. In that case, a unanimous South Dakota Supreme

Court found the reservation to have been diminished,

notwithstanding the very recent decisions of the lower

federal courts in the case at bar. The Cer decision is set

out at App. 125-158.

REASONS FOR GRANTING THE WRIT

The 1894 Act contains express language providing for

the cession of land and the payment of a sum certain for

that land. This Court’s precedents directly hold that such

“cession and sum certain” language creates a “nearly

conclusive presumption” or an “almost insurmountable

presumption” of diminishment. The Eighth Circuit below

failed to apply or even acknowledge that presumption.

As a consequence, that decision sq»erely conflicts with

prior and subsequent Yankton disestablishment decisions

of the South Dakota Supreme Court, with this Court's

disestablishment jurisprudence and with this Court's

own 1914 Perrin opinion. The Petition should be granted

to resolve those conflicts, which have left the regulate ry

authority over Indians and non-Indians on roughty

390,000 acres of South Dakota lands in an uncertain state.

THE DECISION OF THE DIVIDED PANEL OF THE

COURT OF APPEALS SQUARELY CONFLICTS WITH

THE SUBSEQUENT DECISION OF THE UNANIMOUS

SOUTH DAKOTA SUPREME COURT ON AN IMPOR-

TANT QUESTION OF FEDERAL LAW.

As the divided opinion below recognized, its deci-

sion put the court of appeals in conflict with prior deci-

sions of the South Dakota Supreme Court. App. 26, n.19.

For example, in Wood v. Jameson, 130 N.W.2d 95, 99 (S.D.

1964), the South Dakota Supreme Court held that “the

purpose of Congress was to disestablish the [Yankton]

reservation.” See also State v. Thompson, 355 N.W.2d 349,

350-51 (S.D. 1984); State v. Winckler, 260 N.W.2d 356, 360

(S.D. 1977); State v. Williamson, 211 N.W.2d 182, 183-84

(S.D. 1973); See also Dissent, App. 61, n.38.

Subsequent to the decision of the divided court of

appeals, a unanimous South Dakota Supreme Court again

found that the Yankton Sioux Reservation had long been

diminished. State v. Greger, App. 125-158. The South

Dakota Supreme Court's decision focused on the identical

issue before the courts below - whether the reservation

had been diminished. The State Supreme Court “thor-

oughly reviewed” the proceedings in the federal case

now before this Court,? but did not consider itself bound

by the federal decisions under Asarco, Inc. v. Kadish, 490

U.S. 605, 617 (1989). Greger, App. 135, n.5. The South

mc Supreme Court concluded at Greger, App.

For over one hundred years, federal and state

authorities have treated the Yankton Sioux Res-

ervation as diminished. . . . The United States

Supreme Court in 1914 referred to the very area

now in question as no longer part of the reserva-

tion, and in four separate opinions, this Court

concluded diminishment occurred. Statutory

language, contemporary negotiations, land own-

ership, population patterns and “jurisdictional

history” all support diminishment. After more

than a century, no other expectation is reason-

able - using the Supreme Court's “clean analyti-

cal structure,” the evidence is clear: the Yankton

Reservation has been diminished.

This Court has explained that “[a] principal purpose for

which we use our certiorari jurisdiction . . . is to resolve

conflicts among the United States courts of appeats and

state courts concerning the meaning of provisions of fed-

eral law.” Braxton v. United States, 500 U.S. 344, 347 (1991).

See Supreme Court Rule 10(a). The resolution of a conflict

relating to the existence of a reservation has repeatedly

constituted a compelling argument in favor of granting

certiorari. See, e.g., Hagen, 510 U.S. at 409 (“We granted

certiorari . . . to resolve the direct conflict . . . ”); Solem,

465 U.S. at 466 (“Because the Supreme Court of South

Dakota has issued a pair of opinions offering a conflicting

interpretation . . . we granted certiorari”); DeCoteau, 420

¥ The State Supreme Court had before it the same exhibits

pe nan er put before the federal district court and a few

itional exhibits added in the state court proceeding. Greger

App. 135, n.5. :

U.S. at 430-31 (“We granted certiorari . . . to resolve the

conflict . . . ).%°

The divided opinion creates profound difficulties for

all of the governmental agencies attempting to administer

the area and for all those who live in the area (over two-

thirds of whom are non-Indians). Less than ten percent of

the area even potentially constituted “Indian country” as

trust land" under 18 U.S.C. § 1151(c) prior to the decision

of the court of appeals. App. 42, n.25. The

ninety percent of the area was assuredly not “Indian

country.” The divided opinion below creates conflicts

with regard to at least the ninety percent non-Indian land

constituting approximately 390,000 acres.

If the divided decision of the panel of the Eighth

Circuit correctly states the law, 100 percent of the area

will be subject to the subtle and often elusive permuta-

tions of federal civil and criminal Indian law which fol-

low the designation of an area as a “reservation”; if, on

the other hand, the state courts are correct in affirming

their own century-long jurisdiction, the status quo would

be retained and “Indian country” status would attach

only to at most nine percent of the area as “allotments” or

as “dependent Indian communities.” DeCoteau, 420 U.S.

at 427, n.2.

10 Indeed, in Hagen, the United States supported the grant of

certiorari to deal with a state-federal court diminishment

conflict and did so in the face of procedural and other

difficulties not presented here. Brief for the United States as

Amicus Curiae, On Petition for a Writ of Certiorari to the

Supreme Court of Utah at 5, 12-14, and n.10, Hagen v. Utah.

11 Not all “trust land” constitutes an “allotment” or “Indian

country” under 18 U.S.C. § 1151(c). See United States v. Stands,

105 F.3d 1565, 1571-1572 (8th Cir. 1997). See also, n.2, supra.

THE DIVIDED OPINION CONFLICTS WITH THIS

COURT’S DIMINISHMENT JURISPRUDENCE.

Because of the overwhelming importance of the issue

of reservation status to all affected citizens and govern-

ments, it is critical that the lower courts scrupulously

adhere to this Court's “ ‘fairly clean analytical structure,’ ”

regarding diminishment questions. Hagen, 510 U.S. at

410-411.

In Hagen, 510 U.S. at 411, this Court, noting that it

would not lightly find diminishment and that statutes

should be construed liberally in favor of the Indians,

identified three primary areas of inquiry. According to

the Court:

The most probative evidence of diminishment

is, of course, the statutory language used to

open the Indian lands.

Id. Hagen also noted its reliance upon “historical context”

and “’on a more pragmatic level, we have recognized

that who actually moved onto opened reservation lands

is also relevant... .’” Id. The divided court below failed

to follow this Court's analytical structure and precedents

in any meaningful fashion.

A. The opinion below directly conflicts with this

Court’s precedent regarding “cession and sum cer-

tain” language.

This Court, in DeCoteau, 420 U.S. at 445, firmly estab-

lished the principle of law that “cession and sum certain”

language is “precisely suited” to termination of a reserva-

tion. Later cases have emphasized this principle, in

exceptionally strong terms, and have found that “cession

and sum certain” language creates an “almost insurmount-

able presumption” of diminishment. Solem, 465 U.S. at

470-71. In particular, this Court has held:

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 unallot-

ted opened lands. (Citations omitted.) 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 insur-

mountable presumption that Congress meant for the

tribe's reservation to be diminished.

Solem, 465 U.S. at 470-71 (emphasis added). This Court

recently reiterated that binding rule of law in Hagen, 510

U.S. at 411, when it found that the use of cession and sum

certain language creates a “nearly conclusive presumption”

of diminishment. In addition, this Court has found that

such language is “[a]t one extreme” of language which

indicates diminishment. Solem, 465 U.S. at 469, n.10.

The “operative language,” Hagen, 510 U.S. at 412, of

the 1894 Yankton Act contained the following provisions:

Article I. The Yankton tribe of Dakota cr 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 Il. 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.

App. 112-113. (emphasis added) Articles I and II of the

1894 Act contain language of “cession” of land for a “sum

certain” and therefore create the “nearly conclusive pre-

sumption,” Hagen, 510 U.S. at 411, or the “almost insur-

mountable presumption” of diminishment. Solem, 465

U.S. at 470-71. See DeCoteau, 420 US. at 445.

As the dissent pointed out, the task of the court

below, upon recognition of the presumption, was “to

determine if the proponents of a continued reservation

status for the ceded lands have successfully rebutted this

presumption of diminishment.” App. 47 (footnote omit-

ted). The majority failed to make this “critical analysis”

however, and in fact “never acknowledges that the pre-

sumption of diminishment exists nor does it hold that the

presumption of diminishment has somehow been rebut-

ted.” Dissent, App. 47-48 (footnote omitted).!? The failure

of the majority to adhere to this Court's unequivocal

precedents with regard to the creation of the “almost

insurmountable presumption” of diminishment amply

justifies the grant of certiorari in this case. Cf. South

Dakota v. Bourland, 508 U.S. 679, 691-92 (1993).

The majority, instead of adhering to this Court's “ces-

sion and sum certain” holdings, engaged in a “decon-

struction” of Articles I and II. First, instead of construing

the two terms together as this Court has indicated is

appropriate, see Solem, 465 U.S. at 470-71, the majority

separated the two terms. Second, the majority essentially

ignored the “cession language,” App. 13, assigning it

virtually no importance.'3 The majority thus ignored not

only Hagen, Solem, and DeCoteau, but also Rosebud, 430

U.S. at 597 in which this Court found that “cession”

2 The dissent points out that the majority's “two passing

references” to the presumption are made as “mere

restatement(|s] of the appellant’s argument.” App. 47, n.30. The

dissent also correctly found that: “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.” Id.

13 The majority's reliance on 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 572 (8th Cir. 1988), cert. denied, 493 U.S. 1047

(1990), is unavailing for Grey Bear, while including “cession

language,” did not include “sum certain” language and this

distinction was critical in Grey Bear itself. Grey Bear, 828 F.2d at

1290. See Dissent, App. 48-49; State v. Greger, App. 142, n.7.

language alone, without the addition of sum certain lan-

“da

guage, was “ ‘precisely suited’ to disestablishment.”

Third, the majority “similarly discards the impor-

tance of Article II,” Dissent, App. 49, and its “sum cer-

tain” language. The flaw in the majority opinion is its

failure to assign primary importance to the language

actually used by Congress. Instead of recognizing that the

language was “precisely suited” to disestablishment, the

majority looked to legislative history to determine its

meaning. See id. at 14-16. As stated by the dissent, the

majority thus incorrectly found that “the plain meaning

of the statute must be rejected unless positively sup-

ported by its legislative history.” Id. at 49. As the dissent

concluded, however, even this investigation of legislative

history yielded “nothing” which “betrays” an intent

other than to diminish. Id.

The majority’s apparent argument with regard to

Article II sum certain language is that evidence that a

tribe sought definite and substantial financial return for

its lands is not supportive of diminishment. See id. at

15-16 (citing DeCoteau, 420 U.S. 447-48). The majority

misreads DeCoteau, 420 U.S. at 448, which indicates that

an agreement which did not provide for definite payment

did not diminish but that diminishment was accom-

plished by the act which “vests in the tribe a sum certain

~ $2.50 per acre — in payment for the express cession and

relinquishment of ‘all’ of the tribe’s ‘claim right, title and

interest’ in the unallotted lands.” See also general discus-

sion of this point at Rosebud, 430 U.S. at 598, n.20.

Analysis of the historical record yields additional

evidence that “cession and sum certain” language, as

used here, was intended to disestablish the reservation.

For example, congressmen debating the ratification of the

1892 agreement indicated the lands in question would

become part of the “public domain.” See Ex. 669, 53 Cong.

Rec. 6425 (1894) (Rep. McRae); id. at 6426 (Rep. Her-

mann). See, Hagen, 510 U.S. at 412-415. Further, the

Indians and federal negotiators, Negotiations at 54, 56,

58, 59, 66, 83, effectively equated the 1892 cession with

the 1858 cession made by the same Yankton Indians.

Because the Indians and non-Indians alike knew the

effect of the 1858 cession agreement, both the tribal mem-

bers and the federal negotiators certainly knew that the

1892 cession agreement would diminish the reservation.

The negotiators and the Indians also regularly equated

the 1892 cession with the Lake Traverse cession, see, ¢.g.,

id. at 54, 68, 71; it cannot be disputed that this agreement

disestablished the Lake Traverse Sisseton Reservation.

DeCoteau, 420 U.S. at 427-28.

B. The opinion of the court below conflicts with this

Court’s treatment of savings clauses.

The divided panel below relied primarily upon a

savings section to find that the reservation had not been

diminished. See App. 16-21. Article XVIII, as set out at

App. 120, states as follows:

Article XVIII: 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 con-

tinue to receive their annuities under the said

treaty of April 19th, 1858.

1. Diminishment has been found by this Court in

the two cases in which language at least equal

in strength to the Yankton language was

employed.

As the dissent noted, this Court has “found diminish-

ment despite similarly ‘strong’ — if less verbose — savings

clauses in two other allotment-era statutes.” Dissent,

App. 50, n.31. An agreement with the Crow Tribe at 22

Stat. 42 (1882), states that: “all the existing provisions of

May seventh, eighteen hundred and sixty-eight, shall

continue in force.” This language is at least as powerful

as that of the Yankton agreement but this Court, in Mon-

tana, 450 U.S. at 548, referred to this act as one of four

which “reduced the reservation to slightly fewer than 2.3

million acres.” Similarly, this Court noted diminishment

with regard to an Agreement found at 26 Stat. 989,

1039-1040, § 31, Act of March 3, 1891, which stated:

That all existing provisions of the Treaty of May

7th, Anno Domini eighteen hundred and sixty-

eight, and the agreement approved by act of

congress dated April eleventh, eighteen hun-

dred and eighty-two, shall continue in force.

Despite this language, this Court acknowledged that this

Agreement also diminished the Crow Reservation. DeCot-

eau, 420 U.S. at 439, n.22, 446; Montana, 450 U.S. at 548.

While neither Montana nor DeCoteau directly set forth the

savings language of the two agreements, this Court's

opinions in these two cases strongly indicate diminish-

ment. The majority below, however, did not cite or deal

with this Court’s opinions in this respect.

2. The savings section is internally ambiguous.

In assigning the savings section in this case unprece-

dented force, the majority failed to credit the internal

ambiguity of the section itself - an ambiguity which

makes a broad construction of the section unavailable.

Article XVIII states both that “all provisions of the said

1858 treaty of April 19th, 1858, shall be in full force and

effect” and also that the annuity provisions “under the

said treaty of April 19, 1858” remain in effect. App. 120.

The section therefore gives inconsistent signals as to what

is preserved; i.e., if the language were actually intended

to protect “all” provisions of the 1858 agreement, cer-

tainly the 1858 annuity provisions would be protected.

Furthermore, if a literalistic interpretation of the first

portion of the savings section is adopted, it effectively

negates the 1894 agreement. Article 4 of the 1858 Treaty

guaranteed the tribe “quiet and peaceable possession” of

400,000 acres “for their future home.” App. 102. Article 10

of the 1858 agreement excluded settlement by any “white

person” on the reservation, except certain narrow catego-

ries. Id. at 108. Indeed, under the literalistic interpretation

of the 1894 savings clause, the entirety of the 1858 Treaty

remains in effect, and the cession of land provided for by

Articles I and Il of the 1894 Act is negated.

The canons of construction do not allow an ambig-

uous Article XVIII to overcome the crystal clear provi-

sions of Articles I and II. This Court held in DeCoteau, 420

U.S. at 447, that a “canon of construction is not a license

to disregard clear expressions of tribal and congressional

intent.” See also South Carolina v. Catawba Indian Tribe, 476

U.S. 498, 506 (1986); Oregon Dep't of Fish and Wildlife v.

Kiamath Indian Tribe, 473 U.S. 753, 766-770 (1985). As this

Court has definitively established, “cession and sum cer-

tain” language identical to that used in the 1894 Yankton

agreement constitutes a clear and unequivocal expression

of tribal and congressional intent to disestablish. Under

DeCoteau, Catawba and Klamath, the canons of construc-

tion do not allow the ambiguous language of Article

XVIII to overcome the definitively established expression

of tribal and congressional intent created by the “cession

and sum certain” la..guage of Articles I and II. See Dis-

sent, App. 54, n.33.

Finally, the effect of the majority opinion is to negate

the “operative language,” Hagen, 510 U.S. at 512, of Arti-

cles I and II, in favor of the savings language. Hagen, 510

U.S. at 514, indicated the priority to be given to “opera-

tive language” in construing a “congressional purpose to

terminate reservation status.” The majority’s failure to

assign the correct priority to the “operative language” of

Articles I and II infected its decision with error.

3. The majority failed to properly deal with the

ambiguity of Article XVIII.

The proper mode of analysis of the ambiguous text of

Article XVIII is to examine its history and its place with

regard to the remainder of the Agreement, see Dissent,

App. 51-56. An analysis of the legislative history of the

article reveals no support for the construction of the

majority. The dissent states,

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.

Id. at 54 (footnote omitted.) See also Greger, App. 149.

The history of the article reveals that its focus and

intent were to preserve annuities, as set forth in the

language of the article. The historian retained by the

Tribe testified, for example, that “it’s my opinion the

Yanktons would have believed that the government

might cut off the annuities, and that would have been

disastrous.” T 54-55. See Dissent, App. 55; Greger, id. at

147-148. Furthermore, the report of the negotiators to

Congress regarding Article XVIII specifically stated that

“nothing in the agreement shall be construed to abrogate

the Treaty of April 19, 1858 and that the Yankton Indians

shall continue to receive their annuities under said

treaty.” Negotiations at 4. Annuities were the only claims

thought important enough to specifically include in the

agreement or in the commentary to the agreement.'* In

sum, nothing in the history of Article XVIII supports the

4 As the South Dakota Supreme Court has implied, the

article may well have been broad enough to encompass the

other monetary claims raised by the Yankton Indians at that

time. Greger, App. 148-149. See, e.g., Negotiations at 21 (“The

Indians, . . . presented a long list of claims and grievances. They

claim they had not received their dues under the Treaty of

sweeping and unprecedented interpretation given it by

the majority below.

4. The majority failed to address whether the sav-

ings section overcame the “almost insurmount-

able presumption” of diminishment.

Finally, we note the significant error of the majority

in failing to set the ambiguous savings clause against the

“almost insurmountable presumption,” Solem, 465 U.S. at

470-71, or the “nearly conclusive presumption,” Hagen,

510 U.S. at 411, of diminishment established by this

Court. The result is, in any event, clear. The ambiguous

savings clause cannot overcome the powerful presump-

tion of diminishment, especially when that presumption

is aided, as here, by other substantial evidence.

C. The decision below conflicts with this Court’s con-

clusion that the “justifiable expectations” of resi-

dents of the area should be honored.

This Court has strongly indicated that it gives sub-

stantial deference to the “justifiable expectations” of peo-

ple living in the area in determining whether

diminishment has occurred. See Hagen, 510 U.S. at 420-21;

Rosebud, 465 U.S. at 604-605. It is appropriate that this

should be so, for it cannot be the function of the law to

lightly upset century old jurisdictional arrangements. In

determining the nature of the “justifiable expectations” of

the inhabitants of the area, this Court has looked to the

jurisdictional history, land ownership pattern and popu-

lation of the area. All three factors argue strongly both for

de jure, Rosebud, 430 U.S. at 603-605, and de facto, Solem,

465 U.S. at 471, disestablishment.

1858. .. . ”); id. at 55 (tribal member's claims relating to “this

[1858] treaty,” Pipestone and other claims); id. at 58, 74.

1. Jurisdictional history.

In Rosebud, 430 U.S. at 603, this Court indicated, with

respect to jurisdictional history, that the “single most

salient fact is the unquestioned actual assumption of state

jurisdiction over the unallotted lands in Gregory County

since the passage of the 1904 Act. ...” As in Rosebud, the

State here immediately assumed jurisdiction over the

unallotted lands in the former Yankton Reservation area

after the President’s Proclamation. Even the majority

below found that 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.

App. 38. Similarly the dissent, id. at 62, found that “South

Dakota has exercised civil and criminal jurisdiction over

tribal members in the ceded lands for the past century.”

See also Greger, id. at 154-155: “Since 1895, the year the

reservation was opened, South Dakota courts have con-

sistently maintained, without intervention by federal or

tribal authorities, civil and criminal jurisdiction within

the former reservation boundaries.”

State jurisdiction has been, moreover, exclusive. The

federal courts have not exercised criminal jurisdiction

over nonmembers or non-Indians on the nontrust lands

of the alleged reservation. See, e.g., Testimony of Tribal

Chairman Drapeau. T 318, 330-331; Greger, App. 154.

Indeed, the United States admits that as late as 1985, it

had stated in a brief to the Eighth Circuit Court of

Appeals that the “reservation had been diminished by the

1894 treaty.” See Brief of the United States as Amicus

Curiae in Support of Plaintiffs-Appellees, Yankton Sioux

Tribe v. Southern Missouri Waste Management District, No.

95-2647, at 18, n.8. Similarly, the federal courts have con-

sistently treated the area as disestablished. See Weddell v.

Meierhenry, 636 F.2d 211, 213, n.2 (8th Cir. 1980); Forman v.

United States, 256 F.2d 766, 767 (8th Cir. 1958); Cihak v.

United States, 232 F. 551 (8th Cir. 1916). The court of

claims in 1980 stated “the 1892 agreement changed those

boundaries by the cession at issue in this case.” Yankton

Sioux Tribe v. United States, 623 F.2d 159, 165 (Ct. Cl. 1980).

Indeed, the same district court which decided the case

now before this Court entered a decision in 1995 treating

the Yankton reservation as disetablished and that deci-

sion was affirmed, per curiam, by the court of appeals.

Primeaux v. Lee, Civ. 94-4022, (D.S.D. June 14, 1995), aff’d.,

No. 95-2943 (8th Cir. Jan. 3, 1996) (per curiam).

(Unpublished opinions lodged with Clerk). See also

Primeaux v. Lee, 74 F.3d 1243 (8th Cir. 1996) (Table).

Finally, the Tribe has not exercised civil or criminal

jurisdiction on the nontrust lands of the area for the last

century. As the majority stated, “The tribe presented no

evidence that it has attempted until recently to exercise

civil, regulatory, or criminal jurisdiction over nontrust

lands.” App. 39. Indeed, neither of the tribe’s own constitu-

tions claims jurisdiction over non-Tribal lands. The latest

constitution, adopted in 1962 by tribal members after

examination of other tribal constitutions, claimed terri-

torial effectiveness only as to “all original Tribal lands

now owned by the Tribe under the Treaty of 1858.” Ex.

652; Art. IV, § 1. See App. 39. Thus the tribe, as of today,

limits its constitutional assertion of jurisdiction to tribal

lands only and claims no external boundaries. The effect

of the ruling of the court below is to grant the tribe far

greater jurisdiction than it claims in its own BIA-

approved constitution. No precedent has been cited to

support such an anomalous result.’

15 In both DeCoteau, 420 U.S. at 443, and Rosebud Sioux Tribe,

430 U.S. at 616 n.1 (Marshall, J. dissenting), the tribe claimed

reservation boundaries based in part on assertions in their own

constitutions. Even with such provisions, the Tribe’s claims were

rejected. This makes the ruling below all the more remarkable.

2. Land ownership and population.

The district court found that “[wJhite settlers rapidly

entered and settled the areas of the reservation.”

App. 86. In fact, by 1930, the Yankton Indians owned only

43,358 acres and had divested themselves of ownership of

approximately 90 percent of the lands or 387,047 acres.

Greger, App. 156. As of today, the United States holds less

than nine percent of the acreage within the purported

reservation in trust. Id. at 42, n.25; Greger, id. at 156. See

Map, App. 159. Furthermore, there are now six state

chartered municipalities within the area claimed to be a

reservation: Wagner, Lake Andes, Pickstown, Dante,

Marty, and Ravinia. Greger, App. 156. As of the 1990

census, over two-thirds, or approximately 68 percent,'©

Ex. 614, p. 2, of those residing in the area of the former

reservation were non-Indian.!”

16 The majority quotes the Bureau of the Census statistics

but notes that the tribe “claims” that the census data are not

accurate. App. 42. Apparently believing the controversy to be

unimportant, the majority does not resolve the question.

Reliance on the tribal “claims” would be, in any event,

improvident. The basis of the tribal “claim” is apparently

Exhibit 31, p. 1. The author of the exhibit stated that the

demographic statistics were received by “calling the tribal

office.” T 81. The tribal chairman openly admitted that the

number of residents at issue was arrived at simply by taking the

total number of tribal members and dividing by two, T 314; he

stated, “I assume it probably isn’t” based on an actual count. T

314-315.

17 The majority opinion’s treatment of several other issues

also directly conflicts with this Court’s disestablishment

jurisprudence. For example, although Rosebud, 430 U.S. at

602-603, indicates that a Presidential Proclamation which

contained cession language was an “unambiguous” statement

of “perceived disestablishment,” the Yankton Proclamation,

which likewise contains cession language is virtually ignored by

the majority. Second, although the liquor provision of Article

XVII of the Yankton Agreement is parallel to that found to

D. The majority opinion conflicts with this Court's

decision in Perrin v. United States.

The decision of the divided court below conflicts

with Perrin v. United States, 232 U.S. 478 (1914). Perrin

involved the prosecution of a non-Indian for selling

liquor on lands ceded by the 1894 agreement. This Court

found, in effect, that the reservation had been disestab-

lished by referring to the lands as “ceded lands formerly

included in the Yankton Sioux Indian Reservation. .. . ”

Id. at 480 (emphasis added). The Court contrasted the

“original reservation,” of 400,000 acres with a 1914 acre-

age of about 100,000 acres. Id. at 486. This Court noted

“ “liJf liquor is injurious to [the Indians] inside of a reser-

vation, 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) (emphasis added)).

The court below erroneously assumed that the issue

of disestablishment was not actually before the Court in

Perrin. App. 25, n.18. In fact, the United States argued

that Petitioner “challenged the jurisdiction of the Court

on these grounds: (1) the sale was on his property and not

on a reservation.” Brief of United States, Perrin v. United

States, No. 707, p. 2 (January 1914) (emphasis added).

Cases citing to Perrin have interpreted it as finding the

Yankton Reservation has been diminished. See, ¢.g.,

United States v. Mazurie, 419 U.S. 544, 554 (1975) (Perrin

involved lands which “originally had been included in

the Yankton Sioux Indian Reservation, but had been

ceded to the United States”); Mescalero Apache Tribe v.

indicate diminishment in Rosebud, 430 U.S. at 613, the majority

slights its importance. See App. 56-57. Third, the majority fails to

give proper deference to the importance of the school lands

provision in the Act of Congress adopting the Yankton

Agreement, see App. 57-58, although a similar provision in

Rosebud, 430 U.S. at 599-601, strongly indicated diminishment.

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. .. . “). See also Antoine v.

Washington, 420 U.S. 194, 203 (1975) (relying on Perrin in

off-reservation regulation controversy); United States v.

Nice, 241 U.S. 591, 597-598 (1916); Johnson v. Gearlds, 234

U.S. 422, 444-45 (1914).

THIS CASE RAISES ISSUES OF NATIONAL IMPOR-

TANCE.

The question presented is of exceptional s+

in two interrelated ways. First, the question is i

because it directly affects the daily lives of all those i

live in the area of the alleged reservation (and all those

who live in the area of other alleged reservations). Prior

to the decision of the federal courts below, criminal mat-

ters occurring on nontrust lands were regularly pros-

ecuted in state, not federal, court. With the advent of the

new regime imposed by the divided court of appeals, a

tribal membership based analysis will be employed to

determine which cases are parceled to federal, state, or

tribal court. That law enforcement will be adversely

affected is virtually preordained.

The effect on civil jurisdiction will be similarly dra-

matic. Prior to the recent decision of the divided court of

appeals, the State exercised general civil jurisdiction over

all persons within the 91 percent non-Indian area, and the

tribe had never exercised such jurisdiction. Under the

regime imposed by the divided court of appeals, a civil

dispute between two tribal members would presumably

be subject to only tribal court jurisdiction (whether the

parties so desired or not) and a dispute involving an

Indian and a non-Indian would generally be heard in

tribal court (unless the Indian plaintiff desired to bring an

action in state court). This Court now has before it the

issue of whether a dispute involving two non-Indians

should be heard in state or tribal court. Strate v. A-1

Contractors, No. 95-1872 (Argued Jan. 7, 1997). The over

6,000 residents of the area can also expect constant unset-

tling litigation to determine which entity has jurisdiction

over civil regulatory matters such as hunting and fishing,

see, e.g., South Dakota v. Bourland, 508 U.S. 679 (1993);

taxation, County of Yakima v. Confederated Tribes and Bands

of the Yakima Indian Nation, 502 U.S. 251 (1992); zoning,

Brendale v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S. 408 (1989) and environmental reg-

ulation (such as prompted this litigation).

Second, the opinion of the court below puts into

question whether reliance may be had on this Court's

decisions in disestablishment questions. In particular, the

decision below has the effect of undermining this Court's

finding that “cession and sum certain” language creates

an “almost irrebuttable presumption” of disestablish-

ment. In addition, the decision below lightly dismissed

this Court’s findings with regard to the importance of

“justifiable expectations” of those who themselves, and

whose families, have lived in the area for very long

periods, in this case as long as a century. As the State

Supreme Court pointed out, this Court’s 1914 Perrin deci-

sion itself “created considerable reliance.” Greger, App.

157 n.13. The question presented is thus important to

those who will face litigation in the future on these issues

and to those who might be encouraged to undertake

litigation because of the decision below. Grant of the

Petition would send a strong message that this Court's

precedents with regard to diminishment cases must be

honored.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Mark W. Barnett

Attorney General

Counsel of Record

JouNn Patrick GuUHIN

Deputy Attorney General

500 East Capitol Avenue

Pierre, SD 57501-5070

(605) 773-3215

APPENDIX

App. i

APPENDICES

Opinion of the United States Court of Appeals for

the Eighth Circuit, Oct. 24, 1996.............. App. 1

Memorandum Opinion and Order of the United

States District Court for the District of South

Dakota, Southern Division, June 14, 1995 ....App. 66

Order Denying Petition for Rehearing and Sug-

— or Rehearing En Banc of the United

tates Court of Appeals for the Eighth Circuit,

POR, Gy IIE 6s hee OSes ers cece eccnevcuceccs App. 98

Treaty with the Yankton Sioux, 1858 ........... App. 99

Agreement with the Yankton Sioux or Dakota

Indians, in South Dakota, 1894 ............. App. 111

Opinion of the Supreme Court of the State of

South Dakota in State v. Greger, Feb. 19,

BW de vocdesiwedtncesdessecchscsuaracincess App. 125

App. 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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,

Appeal from the

United States

District Court for

the District of

South Dakota

Southern Missouri Waste

Management District, a non-

profit corporation,

Defendant - Third party

plaintiff - Appellee,

State of South Dakota,

Third party defendant -

Appellant.

Charles Mix County, South

Dakota; Flandreau Santee Sioux

Tribe, Inc.; United States of

America;

Amicus Curiae

a 6; @61(e8 2 4.6 © @ €-¢:0 6 6 6 Cas BS 6,9 6:

App. 2

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

s+ &+ & & & © &

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

App. 3

jurisdiction on the basis that the 1894 statute disestab-

lished or diminished the Yankton reservation. After a trial

the district court! ruled that the site was still part of the

Yankton reservation so federal environmental laws

applied, but that the tribe did not have regulatory author-

ity over the project, which it declined to enjoin. The state

appealed from the judgment, and we affirm.

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 land-

fill on the site. The Yankton tribe was concerned about

possible effects of the project, and it intervened and par-

ticipated in the December 1993 administrative hearing on

the permit application.

1 The Honorable Lawrence L. Piersol, United States District

Judge for the District of South Dakota.

App. 4

After the state granted the permit, the tribe? sued the

Waste District in federal court to stop construction until it

could review and regulate the project. It sought a declara-

tory 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 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 bound-

aries. Much of the trial focused on technical issues relat-

ing to the construction and integrity 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

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.

App. 5

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 require-

ment that a synthetic liner be installed in each of the

landfill cells to prevent leakage. The court also con-

cluded that the tribe had not shown a right to regulate

the landfill site since it had not established either excep-

tion to the general rule that Indian tribes cannot regulate

the activities of non-Indians, even on a reservation. Mon-

tana 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 unallot-

ted land. It contends that the language of the agreement,

its ratifying statute, and surrounding circumstances show

that Congress intended that the boundaries established

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.

App. 6

by the treaty of 1858 be disestablished or diminished.*

The tribe responds that the intent and interest of Con-

gress was in purchasing land for resale to non-Indian

settlers, not in eliminating tribal authority in the area

reserved in the treaty of 1858.°

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.® 11

Stat. 743. The tribe also received $1.6 million to be paid in

* “Diminished” and “disestablished” seem to be used

interchangeably in some cases. See, ¢.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, ¢.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.

* 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.

previously given up some 2 million acres in the 1830s and had

historically been one of the most peaceful Indian tribes.

App. 7

annuities over 50 years, as well as funds for a mill,

schools, houses, and other expenses related to establish- —

ing 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.

§ 331 et seq.. The Dawes Act permitted the federal govern-

ment to allot plots of reservation land to individual

Indians. Once the members of a tribe had received their -

individual allotments (“allotted lands”) from the govern-

ment, 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.”

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

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.

App. 8

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). Indi-

vidual 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 more land 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 mem-

bers 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

App. 9

in favor of sale of the unallotted lands. Under the agree-

ment, dated December 31, 1892," the federal government

would pay $600,000 with intérest 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 provi-

sions. In Article I the tribe agreed to “cede, sell, relin-

quish, and convey” all its right and title to transferred

land, but Article XVIII stated that “Nothing in this agree-

ment shall be construed to abrogate 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 ratify-

ing statute in 1894 which passed without significant

* The required number of signatures was not obtained until

several months after the date of the agreement.

* There .s 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.

App. 10

amendment.'® 28 Stat. 286, 314. President Cleveland

opened the unallotted lands for settlement by proclama-

tion 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 not become 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,

” 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....

App. 11

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, Hand-

book of Federal Indian Law 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. § 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 § 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, § 2.

Il.

Certain basic principles are part of the legal frame-

work for the issues raised by the parties. Once a reserva-

tion 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 incon-

sistent with the preservation of existing boundaries, Id.,

and some agreements and treaties preserved reservation

boundaries, see, ¢.g., Id.; Mattz v. Arnett, 412 U.S. 481

(1973); Seymour v. Superintendent, 368 U.S. 351 (1962),

App. 12

while others caused them to be diminished. See, ¢.g.,

Hagen v. Utah, 114 S. 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

“tairly 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 agree-

ment and the historical evidence.

The most important factor in determining whether

Congress intended to disestablish or diminish the Yank-

ton 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

App. 13

claims that other sections in the agreement also support

its respective position.

South Dakota argues that the language in Articles |

and II of the 1892 agreement makes it clear that Congress

intended to disestablish or diminish the Yankton reserva-

tion. 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 ws to receive $600,000

for conveyance of the land.'! The state argues that the

Supreme Court has construed similar language as indicat-

ing congressional intent to diminish or disestablish reser-

vations. DeCoteau, 420 U.S. at 445.

The tribe responds that the cession language in Arti-

cle 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

1! 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.

App. 14

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

that the reservation had not been diminished because the

agreement, “standing alone, does not evince a clear con-

gressional intent to disestablish the Devils Lake Reserva-

tion.” 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 disestab-

lishment 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

Il, 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

App. 15

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 guaran-

tee 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 under-

standing 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 Commis-

sioner of Indian 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 commission-

ers 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 Arti-

cle 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 circum-

stances indicate congressional intent to diminish a reser-

vation, see, e.g., DeCoteau, 420 U.S. at 447-448, the record

in this case does not support that conclusion. The com-

mission’s instructions, the stated desires of the Indians,

App. 16

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 they are “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 tr.be] 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., dis-

senting) (benefits of existing treaties and agreements con-

tinue unless “inconsistent with the provisions of this

App. 17

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 con-

tents 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. Col-

autti 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 inter-

preted consistently, and the unusually expansive lan-

guage 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 lan-

guage of Article XVIII, but argues that the savings clause

in this case was meant only to reassure the tribe that it

would continue to receive annuities under the 1858

treaty.'2 Interpreting Article XVIII to cover more than

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

App. 18

annuities would render the 1892 agreement largely mean-

ingless, 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” after the 1892 agreement, sale of the

unallotted lands would conflict with that intent by termi-

nating 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

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).

App. 19

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 sen-

tences. Other agreements specifically protected Indian

annuities, but they did not use broad language appar-

ently encompassing all treaty provisions.'* 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

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.”)

App. 20

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 bound-

aries, 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 1858 acknowledged the authority of the tribe over the

reservation, and Article XVIII of the 1894 statute indi-

cated that as much of that treaty as possible was to be

preservec.. 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 agree-

ment 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. Tue court concluded that opening the reserva-

tion to settlement was not inconsistent with maintaining

existing reservation boundaries. Id. (citing Seymour v.

Superintendent, 368 U.S. 351 (1962)). Although the state

App. 21

attacks the continued validity of New Town, it is consis-

tent with subsequent Supreme Court precedent. See Dun-

can 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 agree-

ment just as in New Town.

Articles |, Il, and XVIII may be read together to give

meaning to them all, and we conclude that in combina-

tion they reveal an intent to preserve the 1858 reservation

boundaries.'* Moreover, to the extent there could be any

ambiguity perceived in the statute, it would have to be

resolved in favor of the tribe.'5 Hagen, 114 S. Ct. at 965.

4 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 disfavored by 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

App. 22

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 for such purposes if it did not anticipate that the

opened area would remain part of the reservation.”).!«

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 E

Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1297 (8th Cir. 1994),

cert. denied, 115 S.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).

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 Sole, 1,

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.

App. 23

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.”'” 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 Rose-

bud where the Supreme Court concluded that a similar

clause in an agreement gave rise to an inference that

Congress 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.

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.

App. 24

The negotiations with the Yankton tribe were con-

ducted 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 agree-

ment provided that the prohibition on liquor would con-

tinue 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 elimi-

nated at some future point, but the liquor provision the

tribe insisted on would remain. Article XVII in the Yank-

ton 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 bound-

aries. 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 stat-

ute ratifying the 1892 agreement supports a finding that

the reservation was diminished. Congress added the pro-

vision that “the sixteenth and thirty-sixth section in each

Congressional township . . . shall be reserved for com-

mon-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 excep-

ted. Id.; Rosebud, 430 U.S. at 599-600. The Supreme Court

reasoned that by using the same provision in the Rosebud

App. 25

surplus land act as was used in the statehood act, Con-

gress indicated its intent to diminish the Rosebud reser-

vation. Id. at 600-01. South Dakota argues that the same

reasoning should be 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 consis-

tent 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.'® The South Dakota cases were criminal

18 The state claims that the 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, 451 U.S. 941 (1981), an Indian arrested in Wagner, South

App. 26

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.!9

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 disestab-

lishment issues.?0

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 the

United 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.

'° 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 US. at 466.

App. 27

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.

South Dakota contends that the legislative history

indicates that the unallotted lands on the Yankton reser-

vation 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 MeCoteau, 420 U.S. at 446, but the legisla-

tive history dves not demonstrate such an intent here.

Several surpius land sales were included in a single

Indian appropriations bill in 1894, including land pur-

chases 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

App. 28

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 refer-

ence to a group of agreements with some half dozen

tribes. The different agreements were all included in one

appropriations bill, but Congress used varying enacting

sections for each.?! For example, two of the six mentioned

the public domain in the enacting section. Another explic-

itly 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

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, 479 U.S. 994 (1986). The Tenth Circuit concluded that the

“surrounding events concerning the 1894 and 1897 Acts are

ambiguous.” Id. at 1093.

App. 29

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.”2? 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 disestab-

lished, 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 commis-

sioners 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

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.

App. 30

makes no mention of reduction or elimination of bound-

aries or any surrender of jurisdiction.

In another passage relied on by the state, a commis-

sioner stated:

The Great Father desires and seeks in this trans-

action the benefit of the tribe, and what you

may receive in this matter will be for this tribe

al: ne, 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 reser-

vation 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 contem-

plated, but it does not indicate when any such jurisdic-

tion would attach and under what circumstances. The

passage clearly appears to envision continuity of the res-

ervation, 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 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 Ridge Reser-

vation.” 430 U.S. at 593. In Hagen, the tribe was informed:

App. 31

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 sur-

plus 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 reserva-

tions would be smaller after the sale of lands. Neither the

commissioners nor the tribal members made like com-

ments 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 Con-

gress, 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.

App. 32

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 it enacted .. . [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 reserva-

tion 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 “for-

mer” 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 evi-

dence indicates that the reservation was diminished. For

example, it points to several statements by the Commis-

sioner of Indian Affairs as being particularly relevant.

Shortly after passage of the 1894 act, the commissioner

App. 33

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 reser-

vation. 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 reserva-

tion were infrequent.

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 indi-

cation 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 demar-

cation shown for a reservation. On the other hand the

Bureau of Indian Affairs, also in the Interior Department,

App. 34

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 reserva-

tions were shaded. Study of the pattern of shading on

these maps suggests that reservations opened to settle-

ment were left unshaded. Because of these conflicting

treatments and because an opened reservation is not nec-

essarily diminished, these and similar maps are not par-

ticularly 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 by Andrees’ 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 Con-

gress itself and should guide the appraisal of the contem-

poraneous evidence. It suggests that Congress did not

intend to diminish the Yankton reservation.

App. 35

The pattern throughout the twentieth century is simi-

lar to the contemporaneous evidence. Congress has con-

tinued 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 rele-

vant. Hagen, 114 S. Ct. at 965.

Congress has repeatedly referred to the Yankton Res-

ervation as ongoing. Ir. 1920, for example, Congress pro-

vided “[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 Dis-

trict 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 constitute the southern

division of said district.” 47 Stat. 300 (1932) (emphasis

added). More recently, a water project approved by Con-

gress will “irrigate not more than approximately three

thousand acres of Indian-owned land in the Yankton-Sioux

Indian Reservation. . . .” Reclamation Projects Authoriza-

tion and Adjustment Act of 1992, Pub. L. No. 102-575

§ 2005(b) (1992) (emphasis added).

The state has not directed the court to a single enact-

ment of Congress in which a reference was made to

App. 36

indicate the reservation had been diminished. The statu-

tory 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 “la}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 Act-

ing Solicitor of the Department of the Interior that con-

cluded 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 exis-

tence of towns within the reservation. These

circumstances may be persuasive in reaching

administrative conclusion, but I cannot -

with the conclusion as a matter of law.

The agreement of 11892 provided for the sal

of such lands within the reservation as were aa

allotted or used for designated Purposes. It did

App. 37

not provide for the sale of a particular desig-

nated 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 res-

ervation. The lands allotted on the Yankton Res-

ervation were scattered over all the reserva-

tion. . . . Since the 1892 agreement there has

been no redefinition by Congress of the Yankton

Reservation nor determination that the reserva-

tion no longer exists. On the contrary, the reser-

vation 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, Depart-

ment of the Interior 1063 (1979).

Others within the executive branch have taken vary-

ing 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 estab-

lish a tribal court.” Memorandum M-36783 from Associ-

ate Solicitor, Indian Affairs, to Commissioner of Indian

Affairs, 1 (September 10, 1969). 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

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.

App. 38

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 Sioux Reservation.”

The state government has quite consistently exer-

cised various forms of governmental authority over the

opened lands on the Yankton reservation. State courts

have exercised criminal jurisdiction over Indians on non-

trust 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, under-

ground 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

App. 39

that at least some state employees had been referring to

the reservation as if it still existed.

Thé state argues that the tribe itself has not asserted

jurisdiction over the opened areas and that some docu-

ments indicate that tribal members believed that the res-

ervation 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 'ands now owned by the Tribe under the

Treaty of 1858.” The tribe presented no evidence that it

has attempted until recently to exercise civil, regulatory,

or criminal jurisdiction over nontrust lands. Undisputed

evidence at tria! indicated that the tribe’s effectiveness at

self-government has also varied considerably over time.

Modern maps and atlases seem to show the reserva-

tion as extending to the 1858 boundaries. See U.S. Depart-

ment 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 Geo-

graphic 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 Publica-

tions 1985).

Considering all of the evidence submitted by the

parties and amici regarding the subsequent history of the

reservation, we cannot say that the surrounding circum-

stances are “fully consistent with an intent to terminate

the reservation, and inconsistent with any other pur-

pose.” See DeCoteau, 420 US. at 448.

App. 40

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 dimin-

ish.

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 subse-

quent demographic data are only “one additional clue as

to v‘hat 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

App. 41

lands, we are bound by our traditional solici-

tude for the Indian tribes to rule that diminish-

ment did not take place and that the old

reservation boundaries survived the opening.

Id. at 472. Subsequent demographic data and jurisdic-

tional 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 reser-

vation 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.

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 congres-

sional 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,” se* Solem, 465

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.

App. 42

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 popula-

tion 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 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.* 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

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 US. at

428.

App. 43

census reports that of the Indians living in Charles Mix

County, only eight live outside the 1858 treaty bound-

aries.)

Finally, the evidence shows that the Indian popula-

tion 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. Mean-

while the non-Indian population is decreasing.

The historical and demographic evidence does not

show that Congress intended to change the 1858 bound-

aries. Only Congress can reduce or eliminate a reserva-

tion, 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.

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

App. 44

surplus land to the government, but not their govern-

mental authority over it. Close examination of the agree-

ment, the act, and the historical record does not reveal

the “[s]ubstantial and compelling evidence of a congres-

sional 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 settle-

ment, an Act fulfilling treaty stipulations with and sup-

port 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 Agree-

ment), contained language of cession of land for a sum

certain, which created “an almost insurmountable pre-

sumption 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)).?” Because this presumption has not

been rebutted in this case, I must respectfully dissent.

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).

App. 45

Although “the Congresses that passed the surplus

land Acts anticipated the imminent demise of the reserva-

tion 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 sur-

plus 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 Supreme

Court, which has frequently addressed this issue,?* has

provided the proper analysis for determining if diminish-

ment 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

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.

App. 46

opened land, there is an almost insurmountable pre-

sumption that Congress meant for the tribe's reser-

vation to be diminished.

Solem, 465 U.S. at 470-71 (citations and quotations omit-

ted, 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” pur-

poses. Id. at 473 n.15 (quotations omitted). See also DeCot-

eau, 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, relin-

quished, 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).

App. 47

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.?? The majority, however, never makes

this critical analysis. Indeed, the majority never acknowl-

edges that the presumption of diminishment exists,*° nor

2? Although the United States Supreme Court has rever

found that this presumption of diminishment has been rebutted,

its choice of the phrase, “almost insurmountable presutantion,”

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.

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 | 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,

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.”). 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.

App. 48

does 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 572 (8th Cir. 1988), cert. denied, 493

U.S. 1047 (1990), which construed an allotment-era stat-

ute 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 stat-

ute 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]Jhen such language of cession is

buttressed by an unconditional commitment

from Congress to compensate the Indian tribe

for its land, there is an almost insur-

mountable presumption that Congress meant

for the tribe’s reservation to be diminished.” Id.

at 470-71. We agree with the district court’s anal-

ysis that although the “cede, surrender, grant,

and convey” language of the Act suggests con-

gressional intent to disestablish the reservation

boundaries, see Rosebud, 430 U.S. at 597; DeCot-

eau, 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)].

App. 49

Compensation for the lands was not set at any

fixed price and the tribe was guaranteed reimbur-

sement only for the lands actually disposed of by

the government. Thus, the “almost insurmountable

presumption” of disestablishment urged by defen-

dants is not present in this case.

Id. at 1290 (emphasis in original). The 1894 Act does

contair the critical language of an “unconditional commit-

ment 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 Arti-

cles I and II, therefore, Grey Bear strongly supports adher-

ing 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 dimin-

ish 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 Il, Congress

chose language “precisely suited” to diminishment, DeCot-

eau, 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).

App. 50

Without acknowledging the almost insurmountable pre-

sumption of diminishment created by the interplay of Arti-

cles I and Il, the majority relies on the savings clause in

Article XVIII to support its conclusion that the reservation

was not diminished by the 1894 Act.®! Article XVIII

* The majority indicates that “[iJn 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 !ndian tribes, Ch. 543, 26 Stat. 989, 1042 (1891). 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.

and effect, the same as though this

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 II constitute an “extreme” example of Con-

gress’s express intent to diminish a reservation, see Solem,

465 U.S. at 469 n.10, which is “precisely suited to dises-

tablishment” purposes, id. at 473 n.15 (quotations omit-

ted), 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 reason-

able 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 provi-

sions and contradicting its entire purpose.*? Under the

32 The Treaty of 1858, between the United States and the

Yankton Sioux Tribe, provided that:

App. 52

Act of April 19, 1858, 11 Stat. 743 (1858) (Treaty of 1858),

the Yanktons were not to be dispossessed of their lands,

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 fous 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 their benefit, 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

paige seay thurs oodegynamtn oe poe

thereafter; making one million

heeded hentand diltes ts asoktine in the period of

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 -

App. 53

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 per-

suasive evidence of the purpose of a statute than the

words by which the legislature undertook to give expres-

sion 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 meaning has 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. Ameri-

can 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 Sen-

tencing Guideline “that avoids attributing to the legisla-

ture either an unjust or an absurd conclusion” (citations

and quotations omitted)); Colautti v. Franklin, 439 U.S.

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).

App. 54

379, 392 (1979) (describing “elementary canon of con-

struction 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.*° Rather, Article XVIII specifically reassured tribal

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

which legal 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.

App. 55

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., S. Exec. Doc. 27, 53rd

Cong., 2d Sess. at 17-19 (Mar. 31, 1893 Report of the

Yankton Indian Commission). Indeed, even historian Her-

bert 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 * pe 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 commu-

nicate 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 Yank-

tons 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 -

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.

App. 56

nor the legislative history of the 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 Reserva-

tion was diminished.

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 reserva-

tion, 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).** 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

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.

App. 57

any, such a provision could have on the almost insur-

mountable presumption of diminishment created by Arti-

cles I and II.

Finally, the 1894 Act reserved the sixteenth and

thirty-sixth sections in each “Congressional township” of

the ceded lands for common 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 § 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 . . . : 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

App. 58

extinguished, the congressional grant of land based on

§ 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 § 10 of the admitting

Act - could not have been based on § 10 of the admitting

Act if the Yankton reservation had not been diminished.

This provision, therefore, strongly supports diminish-

ment.95

The United States Supreme Court has found d

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