Appendix — South Dakota v. Rosebud Sioux Tribe

= NOV § 1930

JOSEPH F. SPANIOL, JR.

CLERK

em ee

—_

aa

OQ

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

STATE OF SOUTH DAKOTA, GEORGE S. MICKELSON,

GOVERNOR, ROGER A. TELLINGHUISEN, ATTORNEY

GENERAL, JIM JONES, SUPERINTENDENT, HIGHWAY

PATROL, IN THEIR OFFICIAL CAPACITIES,

Petitioners,

v.

ROSEBUD SIOUX TRIBE, CHEYENNE RIVER SIOUX

TRIBE, OGLALA SIOUX TRIBE, STANDING ROCK

SIOUX TRIBE,

Respondents.

ee ens neem 1

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

ROGER A. TELLINGHUISEN

ATTORNEY GENERAL

tate of South Dakota

Counsel of Record

John P. Guhin

Deputy Attorney General

Mark Smith

Assistant Attorney General

500 East Capitol

Pierre, SD 57501-5070

‘ Telephone: (605) 773-3215

Counsel for Petitioners

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

‘No. 89-5227

Rosebud Sioux Tribe,

Appellant,

Cheyenne River Sioux

Tribe,

Intervenor,

Oglala Sioux Tribe,

Standing Rock Sioux

Tribe,

Appellants,

Appeals from the

United States

District Court for

the District of

South Dakota.

V.

State of South Dakota;

George S. Mickelson,

Governor; Roger

Tellinghuisen, Attorney

General; Jim Jones,

Superintendent of the

Highway Patrol, In Their

Official Capacities,

+eee ee + + + + + + HF H+ + HF + HF HF HF HF HF HF HF HF FH F

Appellees.

No. 89-5228

Rosebud Sioux Tribe,

Cheyenne River Sioux

Tribe,

Appellant,

Oglala Sioux Tribe and

Standing Rock Sioux

Tribe,

Intervenors-

Plaintiffs Below,

Vv.

State of South Dakota;

George S. Mickelson,

Governor; Roger

Tellinghuisen, Attorney

General; Jim Jones,

Superintendent of the

Highway Patrol, In Their

Official Capacities,

ee eee eee He HH HH HH HH FH HH EH F

Appellees.

No. 89-5252

Rosebud Sioux Tribe,

Appellee,

Cheyenne River Sioux

Tribe, Oglala Sioux

Tribe, and Standing Rock

Sioux Tribe,

*

*

*

*

*

*

*

*

*

aA~3

(Plaintiff/

Intervenors Below)

Appellees,

Vv.

State of South Dakota;

George S. Mickelson,

Governor; Roger

Tellinghuisen, Attorney

General; Jim Jones,

Superintendent of the

Highway Patrol, ln Their

Official Capacities,

+ + ee + + + ee ee He HH HF F

Appellants.

Submitted: October 13, 1989

Filed: March 16, 1990

Before LAY, Chief Judge, McMILLIAN and WOLLMAN,

Circuit Judges.

LAY, Chief Judge.

This action was originally commenced by

the Rosebud Sioux Tribe, later joined by the

Cheyenne River Sioux Tribe, the Oglala Sioux

Tribe and the Standing Rock Sioux Tribe (the

Tribes), to enjoin the State of South Dakota

from exercising civil and criminal

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jurisdiction over highways running through

Indian lana? in the state. The district

court? upheld the state's assertion of

lwhile the terms "Indian land" or

"reservation" are used to identify the

geographic area of jurisdiction, the more

accurate term is "Indian country," defined

as:

Except as otherwise provided in sections

1154 and 1156 of this title the term

"Indian country", as used in this

chapter means (a) all land within the

limits of any Indian reservation under

the jurisdiction of the United States

Government, notwithstanding the issuance

of any patent, and, including

rights-of-way running through the

reservation, (b) all dependent Indian

communities within the borders of the

United States whether within the

original or subsequently acquired

territory thereof, and whether within or

without the limits of a state, and (c)

all Indian allotments, the Indian titles

to which have not been extinguished,

including rights-of-way running through

the same.

18 U.S.C. § 1151 (1988).

The Honorable Donald Porter, United

States District Judge for the District of

South Dakota.

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jurisdiction. The Tribes have appealed; the

state has cross-appealed the district court's

finding that its jurisdiction is concurrent

with tribal authorities. We find the

district court erred. Absent tribal consent,

we hold the State of South Dakota has _ no

jurisdiction over the highways running

through Indian lands in the _ state. We

reverse and remand to the district court to

enter judgment in favor of the Tribes.

BACKGROUND

When South Dakota was admitted to the

Union, an act of Congress required a

disclaimer of jurisdiction over Indian land

be included in the state constitution:

[Tjhe people inhabiting said

proposed States do agree and

declare that they forever disclaim

all right and title to the

unappropriated public lands lying

within the boundaries thereof, and

to all lands lying within said

limits owned or held by any Indian

or Indian tribes; and that until

the title thereto shall have been

extinguished by the United States,

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the same _ shall be and remain

subject to the disposition of the

United States, and said Indian

lands’~ shall remain under the

absolute jurisdiction and _ control

of the Congress of the United

States.

Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat.

676. See also S.D. Const. art. XXII; id.,

art. XXVI, § 18.° In 1953, Congress modified

the federal-tribal scheme of jurisdiction

over Indian land to allow states to assume

jurisdiction over Indians within the state.

See Act of Aug. 15, 1953, ¢n. $05, 67 Stat.

588, codified in part at 18 U.S.C. § 1162

(1988) (PL 280). While PL 280 allowed an

express, immediate cession of jurisdiction to

3similar disclaimers were adopted in the

state constitutions of Washington, Montana,

North Dakota, Utah, Oklahoma, Arizona, and

New Mexico as a condition of their admittance

to the Union. See Washington v. Confederated

Bands & Tribes of the Yakima Indian Nation,

439 U.S. 463, 479 & n.23 (1979).

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some states, see 18 U.S.C. § 1162(a),° other

states fell within the provisions of sections

6 and 7 of PL 280, which provided the option

of assuming jurisdiction. Section 7 of

PL 280 provided:

The consent of the United States is

hereby given to any other State not

having jurisdiction with respect to

criminal offenses or civil causes

of action, or with respect to both

as provided for in the Act, to

assume jurisdiction at such time

and in such manner as the people of

the State shall, by affirmative

legislation, obligate and bind the

State to assumption thereof.

PL 280, § 7, 67 Stat. 588, 589, repealed by

Act of Apr. 11, 1968, Pub. L. 90-284, § 403,

Title IV, 82 Stat. 73, 79.

South Dakota responded to the

congressional offer of jurisdiction in 1957

4 california, Minnesota, Nebraska,

Oregon, Wisconsin, and Alaska were the

"mandatory" states to which jurisdiction was

immediately ceded. See 18 U.S.C. § 1162.

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with legislation accepting criminal ana civil

jurisdiction if the affected Tribes

consented. See S.D. Codified Laws Ann.

§§ 1-1-12 - 16 (1985). Since tribal consent

was not given, jurisdiction was never assumed

under this law. In 1959, South Dakota

enacted a statute assuming jurisdiction over

highways jointly maintained with the federal

government. See S.D. Codified Laws’ Ann.

§ 1-1-17. The prerequisite to assumption of

jurisdiction in this statute, that the roads

be jointly maintained by the state and

federal government, was never met. Thus,

these statutes, which appear in the current

c

codification of South Dakota's’ statutes,”

>The commentary following section 1-1-12

notes that these statutes are not repealed

but possibly viable: "The case of Washington

v. Confederated Bands and Tribes of Yakima

Indian Nation, * * * may change one or more

cf the interpretations of these statutes, so

(Footnote Continued)

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remain imperative. See In re High Pine, 78

S.D. 121, 99 N.W.2d 38 (1959).

In 1961, South Dakota enacted the

legislation that is at issue inthis case.

This legislation accepted all civil and

criminal jurisdiction, conditioned on federal

reimbursement, with a notable exception:

The state of South Dakota, in

accordance with the provisions of

67 Statutes at Large, page 589

(Public Law 280), hereby assumes

and accepts jurisdiction of all

criminal offenses and civil causes

of action arising in the Indian

country located within this” state,

as Indian country is defined by

Title 18 United States Code,

section 1151, and obligates and

binds this state to the assumption

thereof[.]

x *k** tk

Except as to criminal offenses and

Civil causes of action arising on

, as the term is

defined in chapter 31-1, the

(Footnote Continued)

they are being reprinted until further

disposition is made of them." S.D. Codified

Laws Ann. § 1-1-12, Commission Note.

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jurisdiction provided for in

§ 1-1-18 shall not be deemed

assumed or accepted by this. state,

* * * unless and until the Governor

of the state of South Dakota, if

satisfied that the United States of

America has made proper provision

for the reimbursement to this state

and its counties for the added

costs in connection with the

assumption of said jurisdiction,

has issued his proper proclamation

duly filed with the secretary of

state declaring the said

jurisdiction to be assumed and

accepted.

S.D. Codified Laws Ann. §§ 1-1-18, 1-1-21

(1985) (emphasis added) (1961 legislation).

The general assumption of jurisdiction did

not occur since the Governor of South Dakota

never filed the required proclamation. A

subsequent attempt in 1963 to assume complete

Civil and criminal jurisdiction without the

federal reimbursement condition failed when

the legislation was defeated in a referendum

vote. See Act of Mar. 15, 1963, Ch. 467,

1963 S.D. Laws 522; S.D. Codified Laws Ann.

§ 1-1-12 Commission Note (1985) (chapter 467

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defeated in referendum vote by 3 to 1

margin). |

The exception in the 1961 legislation

purportedly allowed the state to exercise

jurisdiction over highways in Indian country

from 1961 forward. In 1964, however, the

South Dakota Supreme Court invalidated the

1961 legislation. See In re Hankins, 80 S.D.

435, 125 N.W.2d 839 (1964). The court

concluded the state's assumption of highway

jurisdiction did not effectively remove the

constitutional disclaimer because PL 280 did

not permit a state to assume partial

subject-matter jurisdiction. Id. at 442-43,

125 N.W.2d at 842-43. The 1961 legislation

was never repealed but appears in the current

official codification of the state laws. The

state did not pursue highway enforcement

efforts after the Hankins decision, and

Judicial decisions reflected the state's lack

of jurisdiction over Indians on Indian land.

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See, e.g., State v. Molash, 86 S.D. 558, 199

N.W.2d 591 (1972); Smith v. Temple, 82 S.D.

650, 152 N.W.2d 547 (1967).

In 1968 Congress amended PL 280 to

require tribal consent prior to any

assumptions of jurisdiction. The pertinent

language of the 1968 amendment reads as

follows:

The consent of the United States is

« hereby given to any State not

having jurisdiction over [civil or

criminal causes of action] in the

areas of Indian country situated

within such State to assume, with

the consent of the Indian tribe

occupying the particular Indian

cou or part ereof which could

be affected by such assumption,

such measure of jurisdiction over

{civil or criminal causes of

action] as may be determined by

such State to the same extent that

such State has jurisdiction over

[other civil or criminal causes of

action] * * *

* * * *

SEC. 403 (a) The United States is

authorized to accept a retrocession

by any State of all or any measure

of the criminal or civil

jurisdiction, or both, acquired by

A=-1i3

such State pursuant to [PL 280], as

it was in effect prior to its

repeal by subsection (b) of this

section.

(b) Section 7 of [PL 280] is hereby

repealed, but such repeal shall not

affect any cession of jurisdiction

made pursuant to such section prior

to its repeal.

Act of Apr. 11, 1968, Pub. L. 90-284,

Title IV, §§ 401-03, 82 Stat. 73, 78-79

(codified at 25 U.S.C. §§ 1321(a), 1322(a),

1323 (1982)) (emphasis added). The tribal

consent requirement did not apply to. states

that had assumed jurisdiction prior to the

repeal of section 7. See Three Affiliated

Tribes v. Wold Engineering, 467 U.S. 138, 150

(1984).

In 1979 the United States Supreme Court

decided Washington v. Confederated Bands &

Tribes of the Yakima Indian Natibn, 439 U.S.

463 (1979). Yakima ruled that the Washington

jurisdiction statute validly assumed partial

jurisdiction under the pre-1968 version of

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PL 280. After Yakima, South Dakota began

urging in state courts that it had validly

assumed highway jurisdiction in the 1961

legislation. The 1961 legislation reappeared

in the 1985 codification of state laws in

response to Yakima. ° The South Dakota

Supreme Court in State v. Onihan, 427 N.W.2d

365 (S.D. 1988) ruled that, in light of

Yakima, Hankins was overruled; the court then

concluded that the 1961 legislation was a

valid assumption of jurisdiction over

highways in Indian land. Onihan, 427 N.W.2d

at 367-68. The Onihan court also found the

1968 tribal consent amendment did not apply

since the state had validly assumed

jurisdiction prior to the amendment. Id. at

367.

rhe 1961 legislation was not included

in the 1974 codification of state laws.

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The Tribes filed this action in federal

district court on May 14, 1986, seeking

declaratory and injunctive relief restraining

the state from exercising jurisdiction over

highways on Indian land. The parties filed

cross-motions for sere judgment. The

district court denied the Tribes' motion, and

granted summary judgment in favor of the

state. The district court concluded the

state validly assumed highway jurisdiction in

1961 and that the 1968 amendment did not

apply to the state. Rosebud Sioux Tribe v.

South Dakota, 709 F. Supp. 1502 (D.S.D.

1989). The Tribes now appeal.

DISCUSSION

The question before this court is

whether South Dakota currently has civil and

criminal jurisdiction over highways. running

through Indian land in the. state. The

fundamental issue is whether the state, which

began re-asserting its jurisdiction over the

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highways after the 1979 Yakima decision, is

bound by the 1968 amendment requiring consent

of the affected Tribes. The Tribes argue

that in 1968, when PL 280 was amended, the

state did not have PL 280 jurisdiction and

consequently was bound by the amendment. The

Tribes rely principally on the statements and

representations made by representatives of

South Dakota before congressional committees

considering the PL 280 amendments which

suggest South Dakota had not assumed

jurisdiction under the pre-amendment version

of PL 280. The Tribes contend Congress

relied on those representations and intended

South Dakota be bound by the tribal consent

amendment.

The state contends it is not bound by

the 1968 amendment, arguing that it never

lost the jurisdiction obtained inthe 1961

legislation. The state advances two

arguments to support this theory. First,

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PL 280 as originally enacted did not provide

for a method by which states could retrocede,

or give back, the jurisdiction assumed. Once

South Dakota assumed jurisdiction, the state

argues it could not lose it, notwithstanding

the Hankins decision. Second, the state

contends the only consistent resolution of

this case is to find it validly assumed

jurisdiction in 1961. To rule otherwise

would be an implicit adoption of Hankins,

which was overruled by Yakima and Onihan.

The district court, although

distinguishing between the Washington

jurisdiction statute in Yakima and South

Dakota's statute, nonetheless found "it best

to defer to the implicit holding of the South

Dakota Supreme Court in State v. Onihan that

the 1961 legislation remains an effective

state statute notwithstanding its checkered

history." Rosebud Sioux Tribe, 709 F. Supp.

at 1509 (citations omitted). In doing so the

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district court noted that Hankins was wrongly

decided and that the 1961 legislation was a

sufficient “affirmative legislative action"

of the state to allow assumption of PL 280

jurisdiction. Id. at 1510-12. On this basis

the district court concluded that the 1968

tribal consent requirement was not

applicable. Id. at 1513. |

The validity of the state's jurisdiction

presents difficult questions due to the

unique sequence of events in this case. The

Onihan court concluded that Hankins was

essentially overruled by Yakima. We

recognize the South Dakota Supreme Court's

prerogative to declare its earlier decisions

overruled, invalid or no longer possessing

binding effect. However, were a state

court's ruling is affected by its

interpretation of federal law, this court may

conduct a de novo review of that

interpretation. See Three Affiliated Tribes,

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467 U.S. at 153-54 (federal court can review

state court decision influenced by its

understanding of federal law).

It is important to distinguish between

the state and federal law issues facing the

Onihan court. The state law question

concerns procedural compliance with PL 280,

i the procedure for removing a

constitutional disclaimer. See, e.g., S.D.

Const. art. XXII; see Yakima, 439 U.S. at 493

(procedure for removing disclaimers is state

law issue). The federal law question

considers substantive compliance with PL 280,

i.e., is the jurisdiction statute sufficient

to accept Congress' offer of jurisdiction

over Indians. The Onihan court addressed

both issues in its decision. That court

considered the remaining validity of Hankins

in light of Yakima, overruled its prior

decision, and then, applying Yakima

retroactively, concluded that the 1961

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legislation complied with the substantive

requirements of PL 280. Onihan, 427 N.W.2d

at 367-68. We address the issue of the

substantive validity of the state's assertion

of jurisdiction since it is for the federal

court to determine whether a state's

legislation complies with the federal

requirements of PL 280. See, e.g., Tyndall

v. Gunter, 840 F.2d 617, 618 (8th Cir. 1988)

(validity of retrocession of PL 280

jurisdiction is a federal law question);

Omaha Tribe of Nebraska v. Village of

Walthill, 334 F. Supp. 823, 831 (D. Neb.

1971) (validity of state resolution retro-

ceding PL 280 jurisdiction considered under

federal law), aff'd, 460 F.2d 1327 (8th Cir.

1972).

The South Dakota Supreme Court

misinterpreted Yakima as controlling, and

thus overruling its earlier decisions holding

the state did not have PL 280 jurisdiction.

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We find error in this interpretation of

Yakima. The differences between Washington's

jurisdiction scheme and South Dakota's single

subject-matter jurisdiction scheme require a

more searching examination. Washington's

statute assumed jurisdiction over eight

different subject-matter areas,” and left

open the possibility of full jurisdiction

"See Yakima, 439 U.S. at 475-76:

Full criminal and civil jurisdiction to

the extent permitted by Pub. L. 280 was

extended to all fee lands in every

Indian reservation and to trust- and

allotted lands therein when non-Indians

were involved. Except for eight

categories of law, however, state

jurisdiction was not extended to Indians

on allotted and trust lands unless’ the

affected tribe so requested. The eight

jurisdictional categories of state law

that were thus extended to all parts of

every Indian reservation were in the

areas of compulsory school attendance,

public assistance, domestic relations,

mental illness, juvenile delinquency,

adoption proceedings, dependent

children, and motor vehicles.

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with the consent of the affected Tribe. The

Yakima court found the state could "assume

jurisdiction in such manner" as the people of

the state shall "by affirmative legislative

action, obligate and bind the State to

assumption thereof." Yakima, 439 U.S. at

495. The court also observed: "Whether or

not "[sic] in such manner"[sic} is’ fully

synonymous with "[{sic] to such extent,"[sic]

the phrase is at least broad enough to

authorize a State to condition the extension

fe) jurisdicti ove an Indian

se tio on the consent of the tribe

affected." Id. at 498 (emphasis added).

The Yakima court concluded that

Washington's jurisdiction statute did not

represent "an attempt to reap the benefits

and to avoid the burdens of the

jurisdictional offer made by Congress." Id.

at 498. As Yakima points out proof to the

contrary was found inthe state's offer to

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assume total jurisdiction whenever a_ tribal

request is made that it do so.® Washington's

She Supreme Court expanded on this

theme by observing:

[Tjhe partial geographic and

subject-matter jurisdiction that exists

in the absence of tribal consent is

responsive to the law enforcement

concerns that underlay the adoption of

Pub. L. 280. State jurisdiction is

complete as to all non-Indians on

reservations and is also complete as_ to

Indians on nontrust lands. The law

enforcement hiatus that preoccupied the

83d Congress has to that extent been

eliminated. On trust and restricted

lands within the reservations whose

tribes have not requested the coverage

of state law, jurisdiction over crimes

by Indians is, as it was when Pub.

L. 280 was enacted, shared by the tribal

and Federal Governments. To the extent

that this shared federal and tribal

responsibility is inadequate to preserve

law and order, the tribes need only

request and they will receive the

protection of state law.

x*kek tk

We are unable to conclude that the

State, in asserting a less intrusive

presence on the Reservation while at the

(Footnote Continued)

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scheme was responsive to the congressional

concerns and intent that fostered PL 280 and

left "substantial play for tribal

self-government" in a way that "reflects a

responsible attempt to accommodate the needs

of both Indians and non-Indians within a

reservation." Id. at 499.

In contrast, South Dakota's jurisdiction

scheme assumes civil and criminal

(Footnote Continued)

same time obligating itself to -assume

full jurisdictional responsibility upon

request, somehow flouted the will of

Congress. A State that has accepted the

jurisdictional offer in Pub. L. 280 ina

way that leaves substantial play for

tribal self-government, under a

voluntary system of partial jurisdiction

that reflects a responsible attempt to

accommodate the needs of both Indians

and non-Indians within a reservation,

has plainly taken action within the

terms of the offer made by Congress’ to

the States in 1953. For Congress surely

did not deny an option State the power

to condition its offer of full

jurisdiction on tribal consent.

Id. at 498-99.

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jurisdiction over one limited area:

highways, a subject-matter area that

"arguably takes jurisdiction over perhaps the

only part of law enforcement which comes

close to being self-financing - oe

enforcement of traffic laws." Rosebud Sioux

Tribe, 709 F. Supp. at 1508.” The remainder

of the 1961 amendment was an attempt to

condition full jurisdiction over Indian lands

on federal reimbursement. 2°

The Tribes question the extent of the

state's presence on the highways. Current

litigation in South Dakota courts challenges

the authority of the state, under the 1961

legislation, tc enforce compulsory insurance

laws against Indians traveling on reservation

highways, and the state's authority to

proceed beyond the geographic boundary of its

jurisdiction, highways, to arrest a tribal

member for a traffic offense.

rey commenting on the negative impact

of the 1961 legislation, a legislative

research staff report pointed out that the

1961 law "allowed assumption of total

jurisdiction if the federal government

(Footnote Continued)

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The major concerns reflected in the

passage of PL 280 were (1) to reduce the

economic burden of federal jurisdiction over

reservations, (2) to respond to a_ perceived

hiatus in law enforcement on reservations,

and (3) to assimilate Indians into the

general population. Yakima, 439 U.S. at 498.

We believe South Dakota's limited

excursion into the area of Indian

jurisdiction is not responsive to the

concerns underlying the passage of PL 280.

Jurisdiction over highways does not go very

far in reducing lawlessness on reservations,

but simply introduces a third party to the

already complex jurisdiction pattern on

(Footnote Continued)

assumed all costs’ involved. However, the

federal government has not done this, and

there appears to be almost no chance that it

will." Staff Report, Jurisdiction Over

Indian Country in South Dakota, at 7 (S.D.

Legis. Research Council, Mar. 5, 1964).

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reservations. +1 It also does little to

11lthere was no shown hiatus in law

enforcement on highways within the

reservation, but such a hiatus clearly

existed in other areas of the law. See Staff

Report, supra at 73 "The Interim

Investigating Committee subsequently

concluded that lack of jurisdiction in the

matters of juvenile affairs, domestic

relations and institutional commitments in

Indian Country seriously hindered the

efficient operation of public welfare

programs." As the report further points out,

there already existed sharing agreements

affording some state control over the

highways.

As a practical matter, despite the

Hankins ruling, South Dakota does

maintain some control of law and order

on the public highways running through

Indian reservations, through agreements

on procedures among the respective

tribal councils, the U.S. Bureau of

Indian Affairs, and the office of the

State Attorney General representing the

Highway Patrol. Under these agreements,

in order to eliminate legal questions of

jurisdiction, highway patrolmen and

tribal agents are "cross-commissioned"

so their power of arrest cannot be

challenged in court. The patrolmen

police the highways as they do elsewhere

in the state. Indians arrested by them

(Footnote Continued)

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reduce federal presence on reservations since

the federal government retains the financial

burden of the majority of jurisdictional

concerns. The Washington statute, which left

open the possibility of complete jurisdiction

upon tribal consent, reflected an acceptance

of the burden of jurisdiction, as well as an

attempt to accommodate tribal

self-governance. The state's partial

jurisdiction assumption here represents’ the

contrary result. }? We believe that the

failure to assume jurisdiction ina manner

consistent with the purposes of PL 280 is not

(Footnote Continued)

are turned over to tribal courts;

non-Indians will be tried in state

courts.

id.

12 south Dakota urges here on appeal,

contrary to the district court's findings,

that the Tribes should not even share in

concurrent jurisdiction.

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sufficient “action within the terms of the

offer made by Congress to the States in

1953." Yakima, 439 U.S. at 499. See also

Bryan v. Itasca County, 426 U.S. 373, 383-85

(1976) (state not allowed to tax Indians on

reservations since PL 280's grant of civil

jurisdiction was not intended to allow states

to impose regulatory laws on Indians) ;

Kennerly v. District Court of Montana, 400

U.S. 423, 427 (1971) (requirements of PL 280

must be strictly followed).

There exists a second and even more

compelling reason for rejecting the state's

partial assumption of jurisdiction as

complying with PL 280. We find that the

intent of Congress in 1968 in amending PL 280

to eliminate nonconsensual assumptions of

jurisdiction prevents the state from

attempting to assume jurisdiction through

retroactive application of a new_ statutory

interpretation.

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We find support for this conclusion in

the purposes that fueled the tribal consent

amendment to PL 280. Congress signaled the

adoption of a new policy regarding the

relationship between Indians and federal and

state governments that is reflected in the

1968 amendment, and which we believe cannot

be defeated by the retroactive application of

a change in statutory interpretation. PL 280

had been the subject of criticism for its

failure to include a= provision allowing

affected Tribes a voice in determining which

system of government would regulate them.

See F. Cohen, Handbook of Federal Indian Law

177 (1983) (President Eisenhower signed

PL 280, but requested Congress immediately

amend the statute to include a tribal consent

provision). Members of several different

tribes consistently and continuously voiced

their objection to the lack of a tribal

consent provision in PL 280. See Hearings on

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H.R. 15419 And Related Bills Before the

Subcommittee on Indian Affairs of the House

Committee on Interior & Insular Affairs, 90th

3 The 1968 tribal

Cong., 2d Sess. 27 (1968).

consent amendment was a reflection of the

principle that leaders must obtain the

consent of those to be governed before

‘assuming power. See Hearings Before the

Subcommittee on Constitutional Rights of the

Senate Judiciary Committee, 89th Cong., 1st

Sess. 4 (1965) (statement of Sen. McGovern).

This amendment also reflected the shift in

national policy toward Indians, from an

13the Indians' objection to

nonconsensual assumptions of jurisdiction was

based on a belief in tribal sovereignty; a

fear of discriminatory operation of state

jurisdiction; and disagreement with the

ouster of functioning systems of tribal

government. See Goldberg, - Public Law 280:

imits St isdictio Vv

Reservation Indians, 22 UCLA L.Rev. 535,

544-45 (1975).

A-32

assimilationist approach, to a policy

promoting tribal self-governance and

self-reliance. Goldberg, blic aw 280:

The Limits of State Jurisdiction Over

Reservation Indians, 22 UCLA L.Rev. 535, 550

(1975).

Significantly, several representatives

of South Dakota appeared before the

congressional committee considering the

amendment, and pronounced their support for a

tribal consent provision. These

representatives also described South Dakota

aS a non-PL 280 state, and declared that

South Dakota accepted the principle that

tribal consent was an important feature of a

democratic system of government. See

ari ° ubcommittee fe)

Constitutional Rights, supra (statement of

South Dakota Assistant Attorney General

Andre) ; j on_ H.R. s. 00 Before the

Committee on Rules of the House of

A-33

Representatives, 90th Cong., 2d Sess. 2741

(1968) (statement of South Dakota Congressman

Reifel). We cannot rely solely upon the

statements of these representatives to find a

congressional intent that South Dakota be

bound by this amendment. We do believe,

however, that the entire history of this

amendment, including the representations made

by these speakers, provides ample support for

the conclusion that Congress intended to

eliminate completely the ability of a_ state

to assume jurisdiction, without tribal

consent, at any time and in any manner after

1968.

We find further support for this

conclusion in the repeal of the original

section 7 of PL 280, which had allowed

assumptions of jurisdiction without consent.

It is clear that Congress intended to

eliminate the possibility of future

nonconsensual assumptions of jurisdiction by

A-34

reotaling the section under which such

jueisdiction was obtained. This repeal did

not affect those assumptions of jurisdiction

that were already operative. See Act of

Apr. 11, 1968, Pub. L. 90-284, Title IV,

§ 403(b), 82 Stat. 73, 79 (codified at 25

U.S.C. § 1323(b)). But the clear import of

the repeal of section 7 was to signal

Congress' disapproval of any further

nonconsensual assumptions of jurisdiction,

through any means.

We acknowledge the existence of the rule

of law requiring a change in statutory

interpretation to be applied retroactively.

See Unite tates v state of Donnelly, 397

U.S. 286, 294-95 (1970); ° v. Wa

’

653 F.2d 1035, 1042 (5th Cir. Unit A Aug.

1981); Ettinger v. Central Penn Nat'l Bank,

634 F.2d 120, 124 (3d Cir. 1980); Safarik v.

Udall, 304 F.2d 944, 949-50 (D.C. Cir.),

cert. denied sub nom., 371 U.S. 901 (1962);

A-35

Jackson v. Harris, 43 F.2d 513, 516 (10th

Cir. 1930). This rule explains that "[t)he

effect of the subsequent decisions is not to

make a new law but only to hold that the law

always meant what the court now says it

means." emin Vv ing, 264 U.S. 29,

31-32 (1924). This rule must be evaluated,

however, in light of the unique factual

circumstances of this case, particularly the

background leading up to the intervening

J 4

congressional amendment. +

15

Although in a different context the

observation of the Supreme Court in Chicot

14b,ofessor Calabresi has observed that

the review of old statutes requires

consideration of post-enactment changes to

determine "how the statute fits in the

current legal fabric and * * * what has

happened to that fabric since the statute was

passed." G. Calabresi, A Common Law for the

Age of Statutes 129 (Harv. Univ. Press 1982).

153n Chicot County the court was

(Footnote Continued)

C t ai e Dist. v. xt Stat k,

308 U.S. 371 (1940), concerning the

retroactive application of a decision holding

a statute unconstitutional is relevant here.

The court stated:

The actual existence of a_ statute,

prior to [a determination of

unconstitutionality] is an

operative fact and may have

consequences which cannot justly be

ignored. The past cannot always be

erased by a new judicial

declaration. The effect of the

subsequent ruling as to invalidity

may have to be considered in

(Footnote Cont inued)

concerned with the collateral attack of an

earlier judgment, and principles of res

judicata. The Bank brought suit to recover

against bonds on which the drainage district

had defaulted. The district pled as res

judicata an earlier judgment approving a plan

of readjustment, which barred debts, such as

the Bank's, that had not been presented in

the debt readjustment proceedings. The Bank

attacked the validity of that judgment since

a different court had ruled unconstitutional

the statute under which the earlier court had

acted. 308 U.S. at 372-74. The court ruled

that, notwithstanding the subsequent

determination of unconstitutionality, the

validity of the earlier judgment was not open

to collateral attack. Id. at 376-77.

A-37

various aspects,-with respect to

particular relations, individual

and corporate, and particular

conduct, private and official.

Questions of rights claimed to have

application, demand examination.

These questions are among the most

difficult of those which have

engaged the attention of courts,

state and federal, and it is

manifest from numerous decisions

that an all-inclusive statement of

a inci ° solute retroactiv

invalidi n be justified.

id. at 374 (emphasis added).

The Chicot County cour* enunciated

principles of non-retroactivity which we

believe are applicable here. A decision

overruling a previous construction of a

statute is not given retroactive application

where to do so disturbs the vested rights of

the parties. See Massaglia v. Commissioner,

286 F.2a 258, 259 (10th Cir. 1961); see also

Constr. - - aratho

A-38

Pipe Line Co., 458 U.S. 50, 87-88 (1982)

(denying retroactive effect to decision where

retroactive application would "visit

substantial unjustice and hardship" upon

litigants who relied on overruled provisions

of Bankruptcy Act); Chevron Oil Co. v. Huson,

404 U.S. 97, 107 (1971) (retroactive

application should be denied where

substantially unequitable result occurs). We

believe the Tribes had a vested right in the

protection offered by the 1968 tribal consent

amendment. A party does not, of course, have

a vested right in a judicial decision, Estate

16

of Donnelly, 397 U.S. at 295; however, the

16the Supreme Court pointed out in

Estate of Donnelly that the government is

entitled to follow what it believes is the

correct interpretation of a statute, "and to

reap the benefits of that adherence if it

proves to be correct[{.]" Id. at 294. The

Court retroactively applied a change of law

in Estate of Donnelly in part because of the

(Footnote Continued)

A-39

Tribes' vested right here extends not from

the ruling in Hankins but from the change in

Congress' offer of jurisdiction to the

states.

The Supreme Court has considered

subsequent "Jurisdictional history" in

resolving claims of jurisdiction over

Indians. See Rosebud Sioux Tribe v. Kneip,

430 U.S. 584, 603-05 (1977); DeCoteau _ v.

District County Court, 420 U.S. 425, 442-43

(1975). In Rosebud Sioux Tribe, which

involved the disestablishment of reservation

land, the Court supported its conclusion that

earlier congressional acts disestablished the

(Footnote Continued)

government's adherence to the position the

Supreme Court eventually adopted. Id. at

295. Here, however, the state not only did

not adhere to its claim of jurisdiction, it

acquiesced in the Hankins ruling as

demonstrated by the position it took during

the congressional hearings on the tribal

consent amendment.

A-40

reservation by reviewing the longstanding

pattern of jurisdiction over the land.

Since state jurisdiction over the

area within a reservation's

beundaries is quite limited, the

fact that neither Congress nor the

Department of Indian Affairs has

sought to exercise its authority

over this area, or to challenge the

State's exercise of authority is a

factor entitled to weight as part

of the "jurisdictional history."

The longstanding assumption of

jurisdiction by the State over an

area that is over 90% non-Indian

* * * not only demonstrates the

parties' understanding of the

meaning of the Act, but has created

justifiable expectations which

should not be upset by so strained

a_ reading of the Acts of Congress

as petitioner urges.

430 U.S. at 603-05 (citations, footnotes

omitted) (emphasis added). We believe

retroactive application in this case would

disrupt the Tribes' "jJustifiable

expectations."

The Tribes, particularly in South

Dakota, have relied on the protection offered

by the tribal consent amendment since 1968.

A-41

The Tribes have co-existed with state

authorities with the knowledge that the state

could not assume jurisdiction over them

without their consent. The state allowed

federal and tribal authorities to exercise

jurisdiction prior to and after 1968 without

asserting its claim to jurisdiction.

Retroactive application of the Yakima

interpretation of PL 280 to revive South

Dakota's 1961 legislation would disregard the

manner in which the Tribes and the state have

structured their jurisdictional relationship.

The Supreme has consistently instructed

that ambiguities in legislation affecting

retained tribal sovereignty must be construed

in favor of the Indians. Yakima, 439 U.S. at

484; see also anv. asca County, 426

U.S. at 386 (construing effect of legislation

affecting Indians in light of “intervening

legislative enactments"). This rule of

construction becomes crucial when the effect

A-42

of a retroactive statutory interpretation is

considered.

There is no question that in the

enactment of the tribal consent requirement

the Tribes were provided a vested interest in

self-government and were afforded

congressional assurance that jurisdiction not

previously assumed by the state could not be

taken from them without their consent. At

the time this amendment was passed the

legislative history demonstrates that both

the state and the Tribes announced that no

jurisdiction had been assumed by the state

prior to the 1968 amendment. We cannot

ignore the dramatic shift in national policy

toward Indians that is reflected by the

tribal consent amendment. To allow the

state's claim of jurisdiction would defeat

the purpose of the 1968 amendment, and

disregard the manner in which the parties

have structured their relationship. South

A-43

Dakota cannot take advantage of a change in

statutory construction without also

recogn.zing the intervening legislation

imposing new prerequisites on assumptions of

jurisdiction. Since South Dakota has not

obtained the consent of the Tribes’ since

1968, its claim of jurisdiction, made only

since the advent of Washington v. Yakima

Indian Nation in 1979, is invalid.

In sum we hold that (1) the 1961

legislation did not validly provide for State

jurisdiction over the highways within the

terms of PL 280; (2) that the self-

governmental interests of the Tribes had

become vested at the time of the passage of

the 1968 amendment and that it was improper

to apply Yakima retroactively to hold that

state jurisdiction had been assumed prior to

the repeal of section 7 of PL 280 in 1968;

and (3) that the congressional intent in

passing the 1968 amendment did not

A-44

contemplate that a subsequent, retroactive

application of a change in statutory

interpretation could alter South Dakota's

lack of jurisdiction existing at the time of

the repeal of section 7.

The judgment of the district court is

vacated and judgment in favor of the plain-

tiffs in accord with this opinion is to be

entered; the cross-appeal is ordered

dismissed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

|

.

|

A-45

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 89-5227/5228/5252SD

Rosebud Sioux Tribe, et al.,

Order Denying

Petition for

Rehearing and

Suggestion for

Rehearing en Banc

Appellants,

Vv.

State of South Dakota et al.,

+e t+ + + + * H *

Appellees.

Appellees' suggestion for rehearing en

banc has been considered by the court and is

denied by reason of the lack of a majority of

the active judges voting to rehear the case

en banc. Judges Fagg, Bowman, Magill and

Beam would have voted to grant the petition

for rehearing.

A-46

Petition for rehearing by the panel is

also denied.

June 8, 1990

Order Entered at the Direction of the Court:

/S/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit

A-47

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

DONALD J. PORTER

CHIEF JUDGE

413 U.S. COURTHOUSE

PIERRE, SOUTH DAKOTA 575091

March 31, 1989

Terry L. Pechota

FINCH, VIKEN, VIKEN & PECHOTA

304 Main, Box 2934

Rapid City, South Dakota 57709

Attorneys for Plaintiff Rosebud Sioux Tribe

Scott B. McElroy

Bruce R. Greene

GREENE, MEYER & MCELROY, P.C.,

1007 Pearl Street, Suite 240

Boulder, Colorado 80302

and

Krista Clark

DAKOTA LEGAL SERVICES

P.O. Box 1037

Mission, South Dakota 57555

Attorneys for Plaintiff-Intervenor

Cheyenne River Sioux Tribe

Marvin Amiotte

Attorney at Law

P.O. Box 1053

Pine Ridge, South Dakota 57770

Attorney for Plaintiff-Intervenor

Oglala Sioux Tribe

A-48

Michael T. Swallow

DAKOTA PLAINS LEGAL SERVICES

P.O. BOx 727

Mission, South Dakota 57555

Attorney for Plaintiff-Intervenor

Standing Rock Sioux Tribe

John P. Guhin

Harold H. Deering, Jr.

Assistant Attorneys General

Office of Attorney General

Natural Resource Section

State Capitol

Pierre, South Dakota 57501

Attorneys for Defendants

RE: CIVIL NO. 86-3019

ROSEBUD SIOUX TRIBE, Plaintiff;

CHEYENNE RIVER SIOUX TRIBE,

Plaintiff/Intervenor; OGLALA

SIOUX TRIBE, Plaintiff/Intervenor;

STANDING ROCK SIOUX TRIBE,

Plaintiff/Intervenor

vs.

STATE OF SOUTH DAKO™A,

GEORGE S. MICKELS-*!, Governor;

ROGER TELLINGHUISEN, Attorney

General; JIM JONES, Superintendent

of the Highway Patrol, In Their

Official Capacities, Defendants.

Dear Counsel:

MEMORANDUM OPINION

On May 14, 1986, the Rosebud Sioux Tribe

filed this action against defendants, the

State of South Dakota and various’ state

A-49

officials (hereinafter "the State" or "South

Dakota") to seek declaratory and injunctive

relief restraining South Dakota from

exercising jurisdiction over Indians_- on

highways within the Rosebud Indian

Reservation. The Rosebud Sioux Tribe invokes

the jurisdiction of this Court under 28

U.S.C. §§ 1331, 1343(3) and (4), 1337, 1362

and 42 U.S.C. § 1983. This Court has

permitted the Cheyenne River Sioux Tribe,

Oglala Sioux Tribe, and Standing Rock Sioux

Tribe to join as plaintiff-intervenors under

Rule 24 of the Federal Rules of Civil

Procedure. Based on an agreement filed by

the parties to this case, this Court on

November 19, 1987 ordered that the parties

submit the case for decision on the merits by

filing cross-motions for summary judgment.

Having reviewed the lengthy original and

Supplemental briefing of the cross-motions

for summary judgment and having carefully

A-50

considered the issues, this Court denies the

summary judgment motion filed by the tribal

plaintiffs and grants summary judgment in

favor of the State.

I. FACTS

The essential facts in this case are not

in dispute. The plaintiffs are federally

recognized Indian tribes who sue as sovereign

governmental entities and as parens patriae

on behalf of tribal members. Each of the

tribal plaintiffs presently patrols’ and

enforces traffic laws on roads within their

respective reservations. Each tribe has

tribal courts, law enforcement ~~ and

detention facilities. The tribes assert that

with regard to offenses committed by Indians

on roads within the reservations, the United

States has exclusive jurisdiction over major

crimes and the tribes have exclusive

jurisdiction over other crimes.

A-51

Defendant South Dakota and its officiais

assert the authority to enforce state laws on

all individuals on highways within the

reservations. On several occasions, the

State has arrested Indians on roads within

Indian country for violating state laws.2/

The tribes have brought this suit to contest

state jurisdiction over Indians on _ roads

1’ this Court is aware of three such

cases: State v. Medearis, No. 85-26, slip op.

(6th Judicial Cir. S.D., Jan. 21, 1986);

State _v. Onihan, Crim.No. 86-168, slip op.

(Sth Judicial Cir. S.D., May 27, 1987),

aff’d, 427 N.W.2d 365 (S.D. 1988); and State

v. Cloud, slip op. (5th Judicial Cir. S.D.,

March 24, 1987). An opinion issued in State

v. __Goodnick, No. 85-19, slip op. (6th

Judicial Cir. S.D., January 15, 1986), though

the case involved a non-Indian defendant,

held that South Dakota has jurisdiction over

offenses committed by non-Indians and Indians

alike on highways within Indian reservations.

Onihan and Cloud involved prosecutions for

drunk driving, while Goodnick involved both

drunk driving and vehicular manslaughter

charges. In Medearis, the defendant was

charged with violating a state statute

limiting the weight of certain vehicles

driven on highways.

A-52

within Indian reservations. To resolve the

case, this Court must examine the unique and

complex history of jurisdiction over Indians

in South Dakota.

II. HISTORICAL DEVELOPMENT OF SOUTH

DAKOTA JURISDICTION OVER INDIANS

A. The Organic Law Disclaimer

The Enabling Act passed by Congress to

permit South Dakota, North Dakota, Montana,

and Washington to enter the Union required

each state to disclaim jurisdiction in Indian

country. Section 4 of the Enabling Act

provided:

[T)he people inhabiting said

proposed States do agree and

declare that they forever disclaim

all right and title to the

unappropriated public lands lying

within the boundaries thereof, and

to all lands lying within said

limits owned or held by any Indian

or Indian tribes; and that until

the title thereto shall have been

extinguished by the United States,

the same shall be and remain

subject to the disposition of the

United States, and said Indian

lands shall remain under’ the

absolute jurisdiction and control

A-53

of the Congress of the United

States.

Act of February 22, 1889, ch. 180, § 4, 25

stat. 676.28

In accordance with the Enabling Act,

South Dakota incorporated the jurisdictional

disclaimer as a compact with the United

States in Article XXII of the state

constitution. Article XXII, which remains as

a part of the current South Dakota

Constitution, states:

(W]e, the people inhabiting the

state of South Dakota, do agree and

declare that we forever disclaim

all right and title to the

unappropriated public lands lying

within the boundary of § South

Dakota, and to all lands’ lying

within said limits owned or held by

18 ‘ ; .

Congress also required disclaimers of

state jurisdiction over Indians in the

enabling acts of Utah, Oklahoma, Arizona and

New Mexico. See Act of July 16, 1894,

ch. 138, 28 Stat. 107 (Utah); Act of June 16,

1906, ch. 32335, 34 Stat. 267 (Oklahoma); Act

of June 20, 1910, ch. 310, 36 Stat. 557

(Arizona and New Mexico).

A-54

any Indian or Indian tribes; and

that until the title thereto shall

have been extinguished by the

United States, the same shall be

and remain subject to the

disposition of the United States;

and said Indian lands shall remain

under the absolute jurisdiction and

control of the Congress of the

United States.

Under the 1889 Enabling Act, Article XXII of

the South Dakota Constitution, and federal

case law, South Dakota traditionally has

exercised criminal or civil jurisdiction in

Indian country only when’ Indians’~ were

involved. See generally St. Cloud v. United

States, 702 F. Supp. 1456, 1459-60 (D.S.D.

1988) (South Dakota would have _ criminal

jurisdiction over rape on reservation only if

both victim and assailant were non-Indians) ;

White v. Califano, 437 F. Supp. 543 (D.S.D.

1977), aff'd, 581 F.2d 697 (8th Cir. 1978)

(federal rather than South Dakota court has

jurisdiction in civil case for commitment of

mentally ill Indian on reservation); see

A-55

generally Williams _v. Lee, 358 U.S. 217,

218-22 (1959).

B. Public Law 280

In 1953, Congress saw fit to alter its

compact with disclaimer states by passing

legislation known as Public Law 280. Act of

Aug. 15, 1953, 67 Stat. 588-590 (codified in

foae Ge 26 U.S.C. § 1162 and 28 U.S.C.

§ 1360). Public Law 280 was passed during an

era when Congress sought to diminish the

federal trust responsibility to Indian tribes

by terminating federal recognition of certain

Indian tribes and encouraging assimilation of

Indians into white society. Congress’ by

Passing Public Law 280 expressly ceded

Criminal and civil jurisdiction over Indian

country to California, Minnesota, Nebraska,

A-56

Oregon, and Wisconsin.?? Public Law 280 gave

all other states the option to assume civil

and criminal jurisdiction in Indian country,

even if the state had an organic law

disclaimer of jurisdiction in Indian country

as does South Dakota. The two sections of

Public Law 280 that apply to South Dakota are

sections six and seven, °° which as originally

enacted, stated:

§ 6. Notwithstanding the

provisions of any Enabling Act for

the admission of a State, the

consent of the United States is

hereby given to the people of any

State to amend, where necessary,

their State constitution or

19puplic Law 280 exempted a few tribes

in these five states from complete state

jurisdiction. Congress later added Alaska as

a state with "mandatory" Public Law 280

jurisdiction over Native Americans. See 18

U.S.C. § 1162(a) and 28 U.S.C. § 1360(a).

20the Supreme Court in Washington v.

Yakima Indian Nation, 439 U.S. 436 (1979)

ruled that both sections six and seven apply

to states with organic law disclaimers like

South Dakota. Id. at 496-97.

A-57

existing statutes, as the case may

be, to remove any legal impediment

to the assumption of civil and

criminal jurisdiction in accordance

with the provisions of this Act:

Provided, That the provisions of

this Act shall not become effective

with respect to such assumption of

jurisdiction by any such _ State

until the people thereof have

appropriately amended their State

constitution or statutes as_ the

case may be.

§ 7. The consent of the United

States is hereby given to any other

State not having jurisdiction with

respect to criminal offenses or

civil causes of action, or with

respect to both as provided for in

this Act, to assume jurisdiction at

such time and in such manner as the

people of the State shall, by

affirmative legislation, obligate

and bind the State to assumption

thereof.

C. South Dakota Legislation

In 1957, the South Dakota legislature

enacted Chapter 319 of the Session Laws of

1957 to assume jursidiction [sic] over Indian

country within South Dakota. The Act in

section one purported to accept complete

Criminal and civil jurisdiction over Indian

A-58

country within the State, but sections four

and five of the Act conditioned’ the

assumption of jurisdiction on tribal consent

and approval by the Board of County

Commissioners of any county containing Indian

country. ?? These conditions were not met, so

21the relevant provisions of Chapter 319

of the 1957 Session Laws stated:

Section 1. In accordance with’ the

provisions of 67 statutes at large,

page 589, Public Law 280, and as Indian

Country is defined by Title 18 USCA,

Section 1151, the provisions of Chapter

106 of the Session Laws of the State of

South Dakota for 1901, as amended, or

any law to the contrary,

notwithstanding, the state of South

Dakota assumes and accepts jurisdiction

of all criminal and civil causes of

action arising in Indian Country under

the provisions of this Act as

hereinafter set forth.

Section 4. Jurisdiction shall not be

deemed assumed or accepted by this state

in any county of South Dakota unless and

until a resolution assuming and

accepting the same is adopted by the

Board of County Commissioners of any

(Footnote Continued)

A-59

this enactment never became operative. See

In Re Petition of High Pine, 78 S.D. 121,

129, 99 N.W.2d 38, 41 (1959).

In 1959, the South Dakota legislature

passed a statute assuming jurisdiction over

highways within Indian country built jointly

by the state and federal governments. ** This

(Footnote Continued)

county containing Indian Country.

Section 5. Be it further provided that

no assumption of civil or _ criminal

jurisdiction shall become’ effective

under the provisions of this Act until

the Tribal council of a Tribe over which

state jurisdiction is to be taken, shall

have considered a referendum in which

all persons eligible to _ vote at

elections held for the purposes of

electing officers of such Tribe, shall

have been given an opportunity to

approve or disapprove such assumption of

jurisdiction.

22mhis statute stated:

The United States of America having

ceded to the state of South Dakota

concurrent police jurisdiction excepting

the ten major crimes as defined by 18

(Footnote Continued)

A~-60

section, codified at SDCL § 1-1-17, was

short-lived, as legislation passed in 1961

repealed the 1959 legislation.

The state enactment most critical to a

decision in this case came in 1961 when the

South Dakota legislature passed chapter 464

of the Session Laws of 1961 [hereinafter

(Footnote Continued)

USC section 1153, unless automobile

accidents are involved, over all public

highways or portions thereof, including

rights-of-way, located within the state

of South Dakota:

(1) Which are established through

any Indian reservation or through

any lands which have been allotted

in severalty to any individual

Indian, under any laws or treaties,

but which have not been conveyed to

the allottee with full power of

alienation, and;

(2) Which were established or

which are maintained by the joint

participation of the United States

and the state of South Dakota.

The state of South Dakota hereby accepts

such jurisdiction.

SDCL § 1-1-17.

A-61

"1961 Act" or "1961 legislation"]. The 1961

legislation sought to authorize broad state

jurisdiction over Indians, but only if the

State could obtain funds from the federal

government to defray the costs of law

enforcement on reservations. During this

era, South Dakota was reluctant to accept

unqualified jurisdiction in Indian country

primarily due to financial concerns.

The two most pertinent sections of the

1961 legislation provided:

Section [codified at SDCL

§ 1-1-18) The State of South

Dakota, in accordance with the

provisions of 67 Statutes at large,

page 589 (Public Law 280), hereby

assumes and accepts jurisdiction of

all criminal offenses and civil

causes of action arising in the

Indian Country located within this

State as Indian Country is defined

by Title 18 United States Code

Annotated, section 1151, and

obligates and binds this State to

the assumption thereof.

Section 4. [codified at SDCL

§ 1-1-21) Except as to criminal

offenses and civil causes of action

arising on any highways, as the

A-62

term is defined in chapter $2-1,°°

the jurisdiction provided for in

Section 1 herein shall not be

deemed assumed or accepted by this

State, .. . unless and until the

Governor of the State of South

Dakota, if satisfied that the

United States of America has made

proper provisions for the

reimbursement to this State and its

counties for the added costs in

connection with the assumption of

said jurisdiction, has issued his

proper proclamation duly filed with

the Secretary of State declaring

the said jurisdiction to be assumed

and accepted.

The governor, however, never filed the

proclamation required by section four, so the

generalized assumption of jurisdiction did

not take place. Nevertheless, it is on

section four of this Act that South Dakota

23 spc § 31-1-1 states in part: Every

way or place of whatever nature open to the

public, as a matter of right, for purposes of

vehicular travel, is a highway. The term

"highway" shall not be deemed to include a

roadway or driveway upon grounds owned by

private persons, colleges, universities, or

other institutions... .

A-63

bases its assertion of jurisdiction over

Indians on highways within Indian country.

The State reads section one together with the

exception clause of section four, now

codified at SDCL § 1-1-21, to authorize state

jurisdiction over Indians on reservation

highways regardless of whether the governor

satisfied the condition in section four of

obtaining adequate funding from the federal

government.

In 1963, the South Dakota legislature

passed yet another statute, this time seeking

to accept unconditionally jurisdiction in

Indian country. This legislation also

purported to repeal the 1961 Act. The 1963

legislation, however, was appropriately

referred to a vote of the people of South

Dakota. In the 1964 general election, South

Dakota rejected the 1963 Act by a vote of

201,389 to 58,289 after Indian tribes lead

[sic] a concerted publicity campaign against

A-64

the 1963 law. See White v. Califano, 437 F.

Supp. 543, 563 (D.S.D. 1977), aff’d, 581 F.2d

697 (8th Cir. 1978) ; R. Clow, State

Jurisdiction on Sioux Reservations: Indian

and Non-Indian Responses, 1952-1964, 11

S.D.L. Rev. 171, 176-183 (1966). Under South

Dakota law, the 1963 legislation never became

effective since it was duly referred to a

vote of the people and soundly defeated.

D. In Re Petition of Hankins

The argument of the State that the

exception clause of section 4 of the 1961 Act

authorizes state jurisdiction on reservation

highways was initially made before the

Supreme Court of South Dakota to support the

1962 state court conviction of an Indian for

drunken driving on an Indian reservation. In

In Re Petition of Hankins, 80 S.D. 435, 125

N.W.2d 839 (1964), the South Dakota Supreme

Court confronted essentially the same

question that this case presents: whether

A-65

the 1961 legislation is an effective

assumption of state jurisdiction over Indians

on roads within Indian country. The court in

Hankins concluded that Public Law 280 did not

permit South Dakota to assume partial

jurisdiction in Indian country over highways

alone. The court also stated that partial

state jurisdiction under the 1961 Act did not

serve the purposes of Public Law 280 and

would further complicate questions of who had

jurisdiction over Indians. Thus, the court

held that the 1961 Act was insufficient to

take Public Law 280 jurisdiction and that the

state lacked jurisdiction over an Indian

driving while intoxicated on a highway within

a reservation. Id. at 442-43, 125 N.W.2d at

842.

The South Dakota Supreme Court in a

number of cases in the next fifteen years

reaffirmed the holding in Hankins. For

instance, in Smith v. Temple, 82 S.D. 650,

A-66

152 N.W.2d 547 (1967), the court held that

South Dakota had no jurisdiction over a suit

by one Indian against another Indian arising

out of an automobile accident on a highway in

Indian country. In Smith, the court stated:

[T]his state has not effectively,

affirmatively, and unequivocally

acted to assume jurisdiction in the

manner specified in (Public

Law 280], therefore .. . criminal

jurisdiction over Indians for

crimes committed within Indian

territory in South Dakota is

exclusively vested in the Federal

and Tribal courts.

Id. at 548. See also State v. Molash, 86

S.D. 558, 199 N.W.2d 591, 593 (1972); State

v. Hero, 282 N.W.2d 70, 72 (S.D. 1979) (South

Dakota is not a Public Law 280 state). In

addition, even the State took the position in

litigation during the late 1960s and the

1970s that it had no jurisdiction over

actions on Indian lands. See, e.g., State v.

White Horse, 89 S.D. 196, 197-98, 231 N.W.2d

847, 848 (1975) (state stipulates to no

A-67

jurisdiction over an Indian drunk driver in

Indian country) .74

E. The Indian Civil Rights Act

Meanwhile, the congressional policy

toward Indian tribes shifted in the 1960s

from a policy promoting assimilation and

termination of federal supervision to a

renewed interest in encouraging’ tribal

self-governance and self-reliance.

Concomitant with this policy change, Congress

enacted in 1968 the Indian Civil Rights Act

24x, aditionally, in hearings before a

congressional subcommittee reviewing Indian

law, a representative of the office of the

Attorney General of South Dakota stated that

"South Dakota never assumed jurisdiction in

Indian country." Statement of Walter W.

Andre, Assistant Attorney General, State of

South Dakota before the Subcommittee on

Constitutional Rights of the Senate committee

on the Judiciary, Constitutional Rights of

American Indian Hearings on S.961-68, S.J.

Res. 40, U.S. Senate, 89th Cong., list Sess.

(1965) at 118) [sic].

A-68

(ICRA).*° part of the ICRA amended Public

Law 280 to require tribal consent as

expressed by a majority vote of enrolled

adult tribal members before a state could

assume further criminal or civil jurisdiction

over Indians. The ICRA also authorized

partial assumptions of state jurisdiction and

left undisturbed state jurisdiction assumed

from 1953 to 1968 under the original language

of Public Law 280.

2 >The Indian Civil Rights Act, 82 Stat.

78, is codified at 25 U.S.C. §§ 1321-26.

By 1968, both states and tribes had

become dissatisfied with provisions of Public

Law 280. Tribes resented that states could

unilaterally force state jurisdiction on

tribes against the will of the Indian people,

and the states disliked the way remaining

federal protections seemed to deprive them of

the ability to finance their newly acquired

powers. Goldberg, Public Law 280: The

Limits of State Jurisdiction over Reservation

Indians, 22 UCLA L. Rev. 535, 538 (1975).

A-69

F. Washington v. Yakima Indian Nation

An important event in the development of

the dispute in this case occurred in 1979

when the United States Supreme Court decided

Washington v. Yakima Indian Nation, 439 U.S.

463 (1979). In Yakima Indian, the Court

considered whether the State of Washington

properly assumed Public Law 280 jurisdiction

through a 1963 statute which took

jurisdiction over eight subject matter areas

and agreed to accept full jurisdiction upon

the consent of individual tribes. The tribes

in Yakima Indian challenged Washington’s

partial assumption of jurisdiction by

advancing three arguments: 1) Washington had

to amend its constitution before assuming

Public Law 280 jurisdiction because

Washington had an organic law disclaimer of

jurisdiction in Indian country; 2) Public

Law 280 did not permit the extension of

partial state jurisdiction; and 3) the

A-70

Washington statute violated the equal

protection and due process guarantees of the

Fourteenth Amendment. Id. at 466-67. After

a careful examination of Public Law 280, the

Court rejected each of these contentions.

Because the Washington legislature passed the

statute at issue in 1963, the Court

scrutinized the Washington statute under the

original language of Public Law 280 rather

than under the modifications to Public

Law 280 contained in the 1968 enactment of

the ICRA. Id. at 493 n.40. The Court

observed that Congress in 1953 intended

Public Law 280 to facilitate and not to

discourage the transfer of jurisdiction, id.

at 490, and determined that both sections six

and seven of the original language of Public

Law 280 apply to states with organic law

disclaimers of jurisdiction in Indian

country, like Washington or South Dakota, id.

at 496-97. The Court concluded that

A-71

Washington’s partial assumption of

jurisdiction over Indians was not

inconsistent with Public Law 280.

Yakima Indian reveals that the South

Dakota Supreme Court in In Re Petition of

Hankins, 80 S.D. 435, 125 N.W.2d 639 (1964)

misinterpreted provisions of Public Law 280

in two important respects. First, the court

in Hankins wrongly concluded that Public

Law 280 did not permit a partial assumption

of jurisdiction in Indian country. Second,

the court mistakenly determined that only

section six -- rather than both sections six

and seven -- of the original version of

Public Law 280 applied to South Dakota.

These two flaws in Hankins severely erode the

reasoning and holding in Hankins that the

1961 legislation was insufficient to empower

South Dakota to enforce state law on Indians

on highways within Indian country.

A-72

The State argues that the analysis in

Yakima Indian alone disposes of this case.

The State, however, overlooks several trou-

blesome distinctions between this case and

Yakima Indian. First, the Washington statute

in Yakima Indian provided a procedure whereby

tribes could consent to complete state

jurisdiction in addition to_ unilaterally

assuming partial jurisdiction over’ the

following eight subject matters: 1)

compulsory school attendance; 2) public

assistance; 3) domestic relations; 4) mental

illness; 5) juvenile delinquency; 6) adoption

proceedings; 7) dependent children; and 8)

operation of motor vehicles upon. public

streets, alleys, roads and highways.

Washington v. Yakima Indian Nation, 439 U.S.

463, 465 n.1 .(1979). In rejecting an

argument by the United States on behalf of

the tribe that Washington’s assumption of

partial jurisdiction was inconsistent with

A-73

the goals of Public Law 280, the Court

reasoned:

[The Washington law) does not

reflect an attempt to reap the

benefits and to avoid the burden of

the jurisdictional offer made by

Congress. To the contrary, the

State must assume total

jurisdiction whenever ae tribal

request is made that it do so.

Indeed, with the possible exception of

highway jurisdiction which might yield

revenue through fines from violations of

traffic laws, the eight areas in which

Washington assumed jurisdiction hardly reaped

benefits for the state while averting

burdensome responsibilities. By contrast,

the assumption of jurisdiction by South

Dakota solely over reservation roads without

offering complete jurisdiction upon tribal

consent arguably takes jurisdiction over

perhaps the only part of law enforcement

which comes close to being self-financing --

i.e, [sic] enforcement of traffic laws.

A-74

The second distinction between Yakima

Indian and the instant case is that the South

Dakota statute at issue provides a far more

questionable basis for Public Law 280

jurisdiction than did the Washington

enactment. The 1961 South Dakota legislation

was ruled ineffective in In Re Petition of

Hankins, 80 S.D. 435, 125 N.W.2d 839 (1964),

and then went some two decades without being

enforced. In addition, the 1961 Act

indirectly assumes jurisdiction through a

clause excepting highway jurisdiction in

Indian country from a section making federal

government financing a prerequisite to

complete assumption of state jurisdiction in

Indian country. The Washington statute at

issue in Yakima Indian not only lacked the

checkered history of the 1961 Act, but also

was substantially more straightforward.

Consequently, Yakima Indian alone does not

resolve this case, as the state contends.

A-75

G. State v. Onihan

Since Yakima Indian severely undermined

the reasoning in Hankins, South Dakota after

Yakima Indian reevaluated whether the 1961

legislation was an effective grant of state

highway jurisdiction in Indian country. The

1961 Act, though never repealed, was omitted

from the 1974 revision of the South Dakota

Codified Laws because of the holding in

Hankins. In the 1985 codification, however,

the 1961 Act resurfaced as SDCL §§ 1-1-18

through 1-1-21. South Dakota also ended its

hiatus in enforcement of state law on Indians

on reservation highways. Beginning in

January of 1986, several South Dakota trial

courts read Yakima Indian to overrule Hankins

and convicted Indians of violating South

Dakota law while on highways in Indian

A-76

caitlin’ with on the 1961 legislation. 7° An

appeal from one of these trial court rulings

reached the South Dakota Supreme Court last

year in the case of State v. Onihan, 427

N.W.2d 365 (S.D. 1988).

In Onihan, a state highway patrol

officer arrested Dennis Onihan, an enrolled

member of the Sisseton Wahpeton Sioux Tribe,

for "driving under the influence" while .on a

highway within Indian trust land. In denying

Onihan’s motion to dismiss, the trial court

ruled that South Dakota had jurisdiction over

crimes committed by Indians on any highway

within the State pursuant to section four of

the 1961 Act, codified at SDCL § 1-1-21. Id.

at 366. After reviewing both the history of

Public Law 280 and the various attempts by

South Dakota to take jurisdiction thereunder,

26 cee cases cited in supra footnote 1.

A-77

the Supreme Court of South Dakota analyzed

the legal issues in roughly three-quarters of

a printed page. Id. at 370. The court

abruptly concluded that the exception clause

in SDCL § 1-1-21 was sufficient to transfer

civil and criminal jurisdiction over Indians

for activities on all highways within the

state. Id. The court thus affirmed the

t..°1 court decision that the state had

jurisdiction over an Indian on a highway in

7

Indian country. The court’s treatment of

Hankins and ultimate holding strongly suggest

that Hankins is in effect overruled. 7°

27 The court also held that SDCL § 1-1-21

when read together wich SDCL § 1-1-18

Satisfied the requirement of "affirmative

legislative action," as set out in Kennerly

v. District Court of Ninth Judicial Dist. of

Montana, 400 U.S. 423 (1971).

28rhe court stated:

It seems clear that to the extent that

(Footnote Continued)

A-78

III. ANALYSIS

Based on this array of legislation and

cases, this Court must determine two

interrelated questions: 1) whether the 1961

Act fulfills the requirements of Public

Law 280; and 2) whether the 1968 Indian Civil

Rights Act amendment of Public Law 280 or the

hiatus of some twenty years in enforcement of

the 1961 enactment prevents South Dakota from

assuming jurisdiction. This Court will

consider each of these questions in turn.

A. The 1961 Act and Public Law 280

Re Extent of Deference to Onihan and

Validity of the 1961 Act.

As a general rule, federal courts are

bound by the interpretation of state law by

(Footnote Continued)

Hankins held that state assumption of

partial jurisdiction was invalid under

Public Law 280, it is now overruled by

Yakima.

Id. at 369.

a |

A-79

the state’s highest court. Wainwright v.

Goode, 464 U.S. 78, 84 (1983). Federal

courts, however, need not abide by state

court interpretations of federal law. The

Supreme Court has also suggested that with

respect to state court decisions involving

Public Law 280, a federal court may review

state court interpretations of state law

influenced by an accompanying interpretation

of Public Law 280. Three Affiliated Tribes

of Ft. Berthold Reservation Vv. Wold

Engineering, P.C., 467 U.S. 138, 151-52

(1984).

In light of Onihan, this Court is

unwilling to declare the 1961 legislation to

be an invalid legislative act. Despite the

withdrawal of the 1961 legislation from the

South Dakota Codified Laws between 1974 and

1985, the South Dakota legislature never

effectively repealed the 1961 enactment.

Although legislation passed in 1963 would

A-80

have repealed the 1961 Act, the 1963

legislation never became effective because of

the successful referendum in the 1964

election. Though the South Dakota case of In

Re Petition of Hankins, 80 S.D. 435, 125

N.W.2d 839 (1964) seemed to invalidate the

1961 Act, subsequent cases essentially have

overruled Hankins and resurrected the 1961

Act. This Court deems it best to defer to

the implicit holding of the South Dakota

Supreme Court in State v. Onihan, 427 N.W.2d

365 (S.D. 1988) that the 1961 legislation

remains an effective state statute

notwithstanding its checkered history.

2. Sufficiency of the 1961 Act under

Public Law 280.

The question of whether the 1961

legislation is sufficient to assume Public

Law 280 jurisdiction presents-~ an issue

squarely within this Court’s authority to

interpret and apply federal law. Washington

A-81

Vv i ian Nation, 439 U.S. 463 (1979)

disposes of several potential issues in this

case by establishing that states with

constitutional disclaimers need not amend

their constitutions to take jurisdiction

under Public Law 280, id. at 484-93, and that

assumption of partial jurisdiction over

Indians does not contravene the version of

Public Law 280 in effect from 1953 to 1968,

id. at 493-500. Since the South Dakota

statute at issue in this case predates the

1968 Indian Civil Rights Act, this state

enactment must meet the requirements of the

Original version of Public Law 280 in effect

from 1953 until 1968. Id. at 493 n.40; Three

Affiliated Tribes of Ft. Berthold Reservation

v. Wold Engineering f., €07 8.8. i238,

150-51 (1984).

To acquire jurisdiction under’- the

Original version of Public Law 280, a state

must fulfill apparently only two

A-82

requirements: 1) affirmative legislative

action; and 2) consistency with the purposes

of Public Law 280. The Supreme Court in

Kennerly v. District Court of Ninth Judicial

District of Montana, 400 U.S. 423 (1971)

specifically stated the requirement that a

state take "affirmative legislative action"

to acquire Public Law 280 jurisdiction.

Kennerly derived the requirement of

affirmative legislative action from the “scant

legislative history and the wording of

section seven of the 1953 version of Public

Law 280. Id. at 427. The Court in Kennerly

held that unilateral action by the Blackfeet

Indian Tribal Council in enacting a law

providing for concurrent state and tribal

court jurisdiction over cases involving

Indian defendants was insufficient to vest

state courts with jurisdiction under either

the original or amended versions of Public

Law 280. In Onihan v. State [sic], 427

A-&35

N.W.2d 365 (S.D. 1988), the South Dakota

Supreme Court -- though not- mentioning

Kennerly specifically -- concluded that the

exception clause in SDCL § 1-1-21 when read

together with SDCL § 1-1-18 qualified as

"affirmative legislative action." This Court

perceives no reason to disturb this portion

of Onihan since the Kennerly standard of

affirmative legislative action appears to

require little more than a bill duly enacted

via the state legislative process.

The second requirement of consistency

with the purpose of Public Law 280 is

implicit from a number of federal decisions.

See, e.g., Washington v. Yakima Indian

Nation, 439 U.S. 463, 498-99 (1979)

(analyzing whether Washington statute was

consonant with the legislative intent of

Public Law 280). Although apparently no

court has explicitly stated consistency with

the goals of Public Law 280 as a prerequisite

A-84

to a proper assumption of state jurisdiction

thereunder, nearly every federal court when

faced with a difficult question under Public

Law 280 has analyzed the legislative intent

of Congress and evaluated the propriety of

state jurisdiction in light of the

legislative history. See, e.g., California

v. Cabazon Band of Mission Indians, 480 U.S.

202, 207-08 (1987); Three Affiliated Tribes

of Ft.. Berthold Reservation Vv. Wold

Engineering, P.C., 467 U.S. 138, 143 (1984);

Yakima Indian, 439 U.S. at 498-99; Bryan v.

Itasca County, 426 U.S. 373, 379-391 (1976);

Santa Rosa Band of Indians v. Kings County,

532 F.2d 655, 662-64 (9th Cir. 1975), cert.

denied, 429 U.S. 1038 (1979).

The legislative history surrounding the

passage of Public Law 280 in 1953 is somewhat

equivocal and_e sparse. Nevertheless, the

United States Supreme Court in Bryan _v.

Itasca County, 426 U.S. 373 (1976) examined

A-85

and discerned the congressional intent in

enacting Public. Law 280. In Bryan, the

Supreme Court held that the explicit grant of

jurisdiction contained in Public Law 280 to

the State of Minnesota did not authorize a

Minnesota county to levy personal property

taxes on a mobile home located on Indian

trust land and owned by an enrolled member of

the Minnesota Chippewa Tribe. The Court,

after carefully analyzing the legislative

history of Public Law 280, determined that

the primary concern of Congress in enacting

Public Law 280 was to deal with the problem

of lawlessness and the absence of adequate

tribal law enforcement on certain

reservations. Id. at 379. The Court also

noted that Public Law 280 "was plainly not

meant to effect total assimilation." Id. at

A-86

387.77 In addition, the Court examined the

effect of the ICRA on Public Law 280 and

construed the initial Public Law 280 grant in

light of the ICRA modifications. Id. at 386.

22~he Court in Bryan also quoted the

opinion of the Court of Appeals for the Ninth

Circuit in Santa Rosa Band of Indians _ v.

Kings County, 532 F.2d 655, 663 (9th Cir.

1975), cert. denied, 429 U.S. 1038 (1979) in

stating "courts ‘are not obliged in ambiguous

instances’ to strain to implement fan

assimilationist] policy Congress has_ now

rejected, particularly where to do so will

interfere with the present congressional

approach to what is, after all, an ongoing

relationship.’" Bryan, 426 U.S. at 388,

n.14. Related maxims of statutory

construction in Indian law require this Court

to resolve ambiguities in favor of Native

Americans and to construe liberally statutes

passed on behalf oof Native Americans.

Antoine v. Washington, 420 U.S. 194, 199-200

(1975); McClanahan v. Arizona State Tax

Comm’n, 411 U.S. 164, 174 (1973). <A court,

however, may not use these canons. of

construction to change the meaning of

unambiguous statutes or to disregard the

express intent of Congress. South Carolina

v. Catawba Indian Tribe, 476 U.S. 498, 506

(1986).

A-87

The Supreme Court reaffirmed this

interpretation of Public Law 280 in

Washington v. Yakima Indian Nation, 439 U.S.

463 (1979), but noted that Public Law 280 was

designed to facilitate, not to frustrate, the

transfer to states of jurisdiction over

Indians. Id. at “00.”” In addition, other

authority suggests that besides reducing

lawlessness on reservations, Congress also

intended Public Law 280 to accomplish two

subsidiary goals: 1) lessening the burden on

the federal government of the trust

relationship with Indian tribes; and 2)

gradually placing the responsibility on

3°nhe report of the committee

considering Public Law 280 suggests that the

law was a part of the congressional attempt

to diminish federal responsibility for Indian

affairs and eventually terminate federal

Supervision aitogether. See generally HR

Rep. no. 848, 83d Cong., 1st Sess. (1953); S.

Rep. No. 699, 83d Cong., 1st Sess. (1953).

A-88

individual states to provide criminal and

civil forums and laws to govern Indian

people. + The 1961 Act appears to satisfy

the goal of beginning a gradual transfer of

responsibility over Indians to the State, but

is not likely to alleviate much of the burden

31566 Goldberg, Public Law 280: The

Limits of State Jurisdiction over Reservation

Indians, 22 UCLA L. Rev. 535, 542 (1975).

The federal government has abandoned the

policy of transferring its trust

responsibilities to the states and has

adopted legislation encouraging tribal

self-dependence and sovereignty.

Nevertheless, this Court must apply Public

Law 280 as it existed in 1953. Washington v.

Yakima Indian Nation, 439 U.S. 463, 493 n.40

(1979); ‘cft., Shakopee _Mdewakanton Sioux

Community v. Prior Lake, 771 F.2d 1153 (8th

Cir. 1985), cert. denied, 475 U.S. 1011

(1986) (consent of Indian tribe embodied in

1968 ICRA amendment not required prior to

municipalities annexation of reservation land

in Minnesota since Minnesota acquired

jurisdiction under original enactment of

Public Law 280); St. Cloud v. United States,

702 F. Supp. 1456 (D.S.D. 1988) (reluctantly

applying termination legislation though

termination policy long abandoned).

A-89

of the federal trust relationship. However,

it is the primary congressional goal of

reducing perceived lawlessness on

reservations and the motive of South Dakota

in seeking partial Public Law 280

jurisdiction that concerns this Court.

The State contends that state

jurisdiction over Indians on _ reservation

highways will reduce lawlessness in Indian

country and has-'~ presented statistics to

demonstrate that the rate of fatal highway

accidents tends to be three times higher on

South Dakota Indian reservations than

throughout the rest of South Dakota.

Additionally, the State asserts that the

political nature of tribal law enforcement

frustrates stringent enforcement of drunk

driving laws by the tribes. The plaintiff

tribes strongly contest these contentions and

point to shortcomings and inconsistencies in

the statistics presented by the State. The

A-90

tribal plaintiffs argue that despite modest

budgets for law enforcement, tribal law

enforcement is effective.

This Court is reluctant to make a hasty

judgment on the efficacy of tribal law

enforcement on each of the reservations

within South Dakota. Even if the position of

the tribal plaintiffs is taken as true,

however, the addition of another law

enforcement authority with jurisdiction over

Indians on highways within Indian country

would serve to ensure even further compliance

with traffic laws. This Court therefore

cannot conclude that the extension of state

highway jurisdiction under the 1961 Act

disserves the legislative intent of Public

A-91

Law 280 to reduce perceived lawlessness on

reservations. >

This Court, nevertheless, is concerned

that South Dakota may be asserting

jurisdiction over Indians on hichways to

raise revenue through traffic ticketing

rather than to promote the goals of Public

Law 280. The plaintiff tribes assert that

the state exercise of jurisdiction over

Indians on highways within Indian

32 certainly there are a number of policy

arguments for limited South Dakota

jurisdiction on reservation highways since

state jurisdiction over Indians might lead to

strained relationships between the State and

tribes, the weakening of tribal law

enforcement authority, and the surfacing of

difficult jurisdictional questions. Congress

in passing Public Law 280 in 1953, however,

made the policy decision to permit unilateral

assumption by states of jurisdiction over

Indians notwithstanding the unpleasant

consequences. This Court is not empowered to

alter such congressional policy decisions.

Such arguments against state jurisdiction are

better directed to Congress or the South

Dakota legislature.

A-92

reservations partially robs from the tribes a

source of revenue -- fines from traffic

tickets. >?

The history and language of the

1961 legislation indicate that the State was

concerned about financing state law

enforcement in Indian country. Presumably,

the chief reason for excepting highway

jurisdiction from the conditional language

codified in SDCL § 1-1-21 was that highway

jurisdiction is somewhat self-financing as a

result of monies collected from traffic

tickets.

Throughout this litigation, the State

has downplayed the ability of traffic ticket

33 state jurisdiction over Indians. on

reservations pursuant to Public Law 280 is

concurrent with continued tribal

jurisdiction. F. Cohen, Handbook of Federal

Indian Law 367 (1982 ed.). Thus, state

enforcement of its traffic laws might dilute

-- but would not eliminate -- tribal revenue

from traffic tickets.

A-93

proceeds to offset costs of law enforcement

on highways in Indian country. Rather, the

State has emphasized that its motive in

extending state highway jurisdiction to

Indians in Indian country is to reduce

accidents and instances of drunk driving.

Indeed, all but one of the arrests of Indians

based on the 1961 legislation that this Court

is aware of involved intoxicated drivers.°4

Given the evidence presented, it appears that

the State does not intend to exercise

jurisdiction over Indians as a means of

revenue raising.°> Moreover, though

si See cases cited in supra footnote 1;

see also In Re Petition of Hankins, 80 S.D.

435, 125 N.W.2d 839 (1964) (drunk driving

arrest of Indian under 1961 legislation at

issue).

3°1f the State’s conduct in enforcing

its traffic laws on Indians in Indian country

demonstrates that this conclusion is

mistaken, this Court might reevaluate its

(Footnote Continued)

ater eel

A-94

financing law enforcement on reservation

Indians was a clear concern of the 1961

legislation, there is no evidence that the

1961 Act was enacted as a guise for

collecting monies from Indians. Thus, there

are insufficient grounds to conclude that the

1961 Act is inconsistent with the policy of

Public Law 280.°°

(Footnote Continued)

judgment. Ideally, the State should

negotiate with the tribe a means of dividing

traffic ticket monies if the amounts

collected by the State exceed the cost of

enforcing state traffic laws on reservation

Indians.

3©the South Dakota Supreme Court in In

Re Petition of Hankins, 80 S.D. 435, 125

N.W.2d 839 (1964) reached the contrary

conclusion. The Court in Hankins reasoned:

It seems to us-~ that [the 1961)

legislation does not tend to accomplish

or promote the congressional purposes of

Public Law 280. To the contrary, it

would proliferate the law enforcement

authorities in Indian country by adding

the state as another entity with

geographically limited jurisdiction

(Footnote Continued)

A-95

B. Effect of 1968 ICRA Amendment

of Public Law 280.

(Footnote Continued)

where the Federal and Tribal courts

already operate, each with limited

subject matter jurisdiction. Moreover,

it makes inescapable the checkerboard

jurisdiction condemned in Seymour vv.

Superintendent, 368 U.S. 351, 82 S.Ct.

424, 7 L.Ed.2d 346 [(1962)], wherever

the extent of the highway right of way

is not clear from markings on the

ground. This we think would be

commonplace on highways in our sparsely

settled Indian reservations.

Id. at 443, 125 N.W.2d at 843.

The court in Hankins believed that

Congress in enacting Public Law 280 had two

goals: 1) withdrawal of federal

responsibility where practicable; and 2)

termination of the federal trust

relationship. id. Supreme Court cases

subsequent to 1964 demonstrate that the court

in Hankins misunderstood the primary intent

of Congress. The Hankins court also misread

Public Law 280 to disapprove of the partial

assumption of state jurisdiction. These

misinterpretations of Public Law 280 prompted

the Hankins court to conclude that the 1961

legislation departed from the intent of

Congress. Consequently, the language in

Hankins quoted above is not persuasive.

A-96

The plaintiff tribes argue that South

Dakota’s assertion of jurisdiction over

reservation Indians contravenes the 1968

amendments to Public Law 280 enacted through

the Indian Civil Rights Act, 82 Stat. 78,

codified at 25 U.S.C. § 1321-26. If the ICRA

amendments to Public Law 280 apply,

assumption of jurisdiction by South Dakota is

invalid since the ICRA made consent of Indian

people a prerequisite to further assumption

of state jurisdiction under Public Law 280.

See 25 U.S.C. §§ 1321, 1322, 1326. Indian

tribes within South Dakota have never

consented to -- and indeed have consistently

and adamantly objected to -- state

jurisdiction over Indians in Indian country.

To support their assertion that the ICRA

amendments apply to this case, the tribes

appear to make two separate arguments: 1)

South Dakota had not assumed jurisdiction in

Indian country before the 1968 ICRA

A-97

amendments and thus the post-1968 version of

Public Law 280 governs; and 2) Congress in

enacting the ICRA intended to include South

Dakota in the provisions requiring tribal

consent for Public Law 280 jurisdiction for

states "not having jurisdiction over

Indians in. . . Indian country."

The analysis in the previous section of

this opinion demonstrates that the assumption

of jurisdiction at issue in this’ case

occurred in 1961.°” The ICRA itselr>* and

3’ this Court’s holding would be entirely

different if it found that the assumption of

jurisdiction occurred sometime after 1979

when Yakima Indian revealed errors in the

legal analysis of In Re Petition of Hankins,

80 S.D. 435, 125 N.W.2d 839 (1964). Indeed,

if any event after 1968 is taken as the time

of South Dakota’s assumption of jurisdiction,

both the requirements of tribal consent in

the ICRA and of affirmative legislative

action expressed in Kennerly v. District

Court of Montana, 400 U.S. 423 (1971) would

be violated. However, the 1961 legislation

-- rather than the rebirth of state

(Footnote Continued)

eee

A-98

two Supreme Court cases make clear that the

ICRA amendments did not affect assumrtions of

state jurisdiction predating 1968, and thus

state enactments before 1968 must be judged

under the original version of Public Law 280.

Three Affiliated Tribes of Ft. Berthold

Reservation v. Wold Engineering, P.C., 467

U.S. 138, 150-51 (1984); Washington v. Yakima

Indian Nation, 439 U.S. 463, 493 n.40 (1979).

Not until 1968 did Public Law 280 contain a

provision requiring tribal consent to state

(Footnote Continued)

enforcement of that enactment’ following

Yakima Indian -- is the assumption of Public

Law 280 jurisdiction that must be

scrutinized.

38

Section 403(b) of Title IV of the

ICRA, codified at 25 U.S.C. § 1323(b),

states:

Section 7 of [the 1953 enactment of

Public Law 280] is hereby repealed, but

such repeal shall not affect any cession

of jurisdiction made pursuant to such

section prior to its repeal.

A-99

assumptions of jurisdiction in Indian

country. See Goldberg, 80: &

s isdicti Vv va

Indians, 22 UCLA L.Rev. 535, 544-45 (1975)

(tribal consent intentionally omitted from

1953 enactment of Public Law 280). The 1961

legislation withstands scrutiny under the

applicable federal law and thus must be

upheld notwithstanding provisions in the

ICRA. Cf., Washington v. Yakima Indian

Nation, 439 U.S. 463 #£.£(1979) (upholding

Washington assumption of Public’ Law 280

jurisdiction without tribal consent when

Washington statute predated ICRA amendment of

Public Law 280); see also Shakopee

Mdewakanton Sioux Community v. Prior Lake,

771 F.2d 1153 (8th Cir. 1985), cert. denied,

475 U.S. 1011 (1986) (tribal consent not

required when Minnesota municipality annexes

reservation land since Minnesota obtained

EE

- A-100

Public Law 280 jurisdiction under the

original language enacted in 1953).

The second argument of the tribes for

the application of the ICRA amendments to

this case is that Congress in 1968 believed

that South Dakota had failed to take Public

Law 280 jurisdiction altogether and thus

intended the ICRA requirement of tribal

consent to apply to South Dakota. The crux

of this argument is that Congress intended

South Dakota to be encompassed as a state

"not having jurisdiction over .. . Indians

in . . . Indian country" as that language is

used in sections requiring tribal consent for

extensions of state criminal and civil

39

laws. The South Dakota cases in the 1960s

39 section 401(a) of Title IV of the

ICRA, codified at 25 U.S.C. § 1321(a),

states:

(Footnote Continued)

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(Footnote Continued)

The consent of the United States is

hereby given to any state not having

jurisdiction over criminal offenses

committed by or against Indians in the

areas of Indian country situated within

such State to assume, with the consent

of the Indian tribe occupying’ the

particular Indian country or part

thereof which could be affected by such

assumption, such measure of jurisdiction

over any or all of such offenses

committed within such Indian country or

any part thereof as may be determined by

such State to the same extent that such

State has jurisdiction over any such

offense committed elsewhere within the

State, and the criminal laws of such

State shall have the same force and

effect within such Indian country or

part thereof as they have elsewhere

within that State.

Section 402(a) of Title IV of the ICRA,

25 U.S.C. § 1322(a) provides:

The consent of the United States is

hereby given to any State not having

jurisdiction over civil causes of action

between Indians or to which Indians are

parties which arise in the areas of

Indian country situated within such

State to assume, with the consent of the

tribe occupying the particular Indian

country or part thereof which would be

affected by such - assumption, such

measure of jurisdiction over any or all

(Footnote Continued)

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disavowing state jurisdiction over

. . 40

reservation Indians

and a very small

portion of the legislative history*+ support

this argument. The tribes thus argue that

whatever jurisdiction South Dakota now

asserts must be judged under the ICRA

amendments to Public Law 280.

It is difficult to reconcile the tribes’

interpretation of the ICRA with Section

(Footnote Continued)

such civil causes of action arising

within such Indian country or any part

thereof as may be determined by such

State to the same extent that such State

has jurisdiction over other civil causes

of action, and those civil laws of such

State that are of general application to

private persons or private property

Shall have the same force and effect

within such Indian country or part

thereof as they have elsewhere within

that State.

40see, e.g., Smith v. Temple, 82 S.D.

650, 152 N.W.2da 547 (1967); In Re Petition of

Hankins, 80 S.D. 435, 125 N.W.2d 839 (1964).

41 ce supra footnote 7.

A-103

403(b) of Title IV of the ICRA, 25 U.S.C.

§ 1323(b), which provides that the partial

repeal of the original language of Public

Law 280 "shall not affect any cession of

jurisdiction" made under the initial

provision authorizing "option" states like

South Dakota to assume jurisdiction in Indian

country. The legislative history and

| language of the ICRA indicate that Congress

in referring to states "not having

jurisdiction" intended neither to single out

any particular state or states nor to adjudge

which states had or had not-~ assvmed

jurisdiction before 1968 under Public

Law 280. This Court perceives no ambiguity

in the ICRA language as it applies to South

Dakota. Sections of the ICRA codified at 25

U.S.C. §§ 1321 and 1322 requiring tribal

consent would apply to South Dakota attempts

to assume jurisdiction after 1968; however,

under the ICRA section codified at 25 U.S.C.

hearin

at ne

A-104

§ 1323(b), the tribal consent requirement in

the ICRA would not apply to whatever

jurisdiction South Dakota had _ properly

assumed prior to 1968. Consequently, the

ICRA amendments do not affect the analysis of

what jurisdiction South Dakota assumed under

the 1961 legislation.

C. Effect of the Lapse in Enforcement in

South Dakota of Public Law 280 Jurisdiction

The tribal plaintiffs also argue that it

is improper for South Dakota to assert

jurisdiction under the 1961 legislation after |

failing to enforce state jurisdiction over

Indians on reservation highways for some

twenty years between 1964 and roughly 1984.

The tribes cite United States Supreme Court

cases recognizing that longstanding practices

may create "justifiable expectations" and a

"Jurisdictional history" may affect

interpretation of unclear legislation

pertaining to Indian laws. For example, in

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Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977), the Court in examining whether

Congress intended to disestablish part of the

Rosebud Sioux Reservation through legislation

enacted in 1904, noted that:

oa * the fact that neither

Congress nor the Bureau of Indian

Affairs has sought to exercise its

authority over this area, or to

challenge the State’s exercise of

authority, is a factor entitled to

weight as a part of the

"Jurisdictional history." The

longstanding assumption of

jurisdiction by the State over an

area that is over 90% non-Indian,

both in population and in land use,

not only demonstrates the parties’

understanding of the meaning of the

Act, but has created justifiable

expectations which should not be

upset by so strained a reading of

the Acts of Congress as petitioner

urges. We are simply unable to

conclude that the intent of the

1904 Act was other than to

disestablish.

Id. at 604-05; see also DeCoteau v. District

County Court, 420 U.S. 425, 442 (1975); Solem

v. Bartlett, 465 U.S. 463, 471 (1984).

A-106

The Supreme Court cases relying on

jurisdictional history and justifiable

expectations are not pertinent to this case

for two reasons. First, the "jurisdictional

history" and "justifiable expectations"

devices are guides for interpretation of

unclear statutes. The twenty year hiatus in

enforcement under the 1961 Act hardly aids

this Court in understanding the pertinent

provisions of Public Law 280 and truly only

demonstrates that the State took seriously

the decision in In Re Petition of Hankins, 80

S.D. 435, 125 N.W.2d 839 (1964), which ruled

the 1961 legislation insufficient to accept

Public Law 280 jurisdiction. The difficulty

with the 1961 legislation is not that it is

unclear, but that is has a somewhat checkered

history. The twenty year hiatus in state

enforcement of its laws against Indians on

reservation highways simply is not a useful

interpretive tool since it does not influence

A-107

a proper understanding of the 1961

legislation or Public Law 280.

Second, state assumption of jurisdiction

over Indians on reservation highways does not

truly disrupt "justifiable expectations"

resulting from the twenty year respite in

state enforcement. The tribes imply that

enforcement of state law on reservation

highways will undermine tribal law

enforcement which has been nurtured in the

last two decades. As this Court stated

earlier, state highway authority under Public

Law 280 would be concurrent with continued

tribal authority. The State is not

displacing tribal authority, but is

complimenting it with regard to criminal and

civil jurisdiction. Although the _ tribes

through the late 1960s and the 1970s may have

expected that they would remain the sole

authority over Indians on Indian country

highways, the sharing of such authority with

ial

A-108

the State does not constitute such a severe

disruption of "justifiable expectations" to

merit disregarding compelling legal reasons

for acknowledging the enforceability of the

1961 legislation. Though this Court is

sympathetic to the position of the plaintiff

tribes, the jurisdictional history and

justifiable expectations analysis in several

Supreme Court cases are insufficient grounds

to grant judgment in favor of the tribes.

IV. CONCLUSION

Pursuant to the 1953 version of Public

Law 280 and state legislation enacted in

1961, South Dakota validly assumed civil and

criminal jurisdiction concurrent with the

tribes over Indians on all highways within

the state. Although the 1961 legislation has

a rather checkered niokney, this Court

respects the decision of the Supreme Court of

South Dakota that the law remains in effect.

The 1961 legislation complies with applicable

A-109

federal law requirements under the original

language of Public Law 280. Neither the 1968

amendment of Public Law 280 nor the lapse of

some twenty years in state enforcement alters

the conclusion that South Dakota effectively

assumed jurisdiction under Public Law 280.

Therefore, this Court denies the motion for

summary judgment of the tribal plaintiffs and

grants the summary judgment motion filed by

the state defendants.

BY THE COURT:

/s/ DONALD J. PORTER

CHIEF JUDGE