Appendix — Hein v. Yankton Sioux Tribe

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App. 43

‘dependent Indian communities’” as the term ts used

in § L151(b) DZz2 aR: at Dat, 118 S.Ct. 948. In Con

struing the term for the first time, the Court held

that “it refers to a Inmited category of Indian lands

that are neither reservations nor allotments, and that

satisfy two requirements first, they must be set

aside by the Federal Government for the use of the

Indians as Indian land; second, they must be under

federal superintendence.” /d

The miscellaneous trust lands easily meet this

definition. The lands were acquired for the use and

benefit of the Yankton Sioux Tribe, and the district

court found that the federal Bureau of Indian Affairs

“negotiates the leases, collects the rents and distrib

utes the rents according to tribal status reports” with

respect. to these lands. Gaffey 1, 529 F.Supp.2d_ at

1055. Testimony by a Federal Bureau of Investigation

agent confirmed that the federal government exercises

criminal jurisdiction over these trust lands. /d. This

is more than enough to meet the standard for Indian

country under § LL51(b). See, e.g., Okla. Tax Comm’n

v. Citizen Band Potawatomi Indian Tribe, 498 US

905, 511, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)

(concluding that “property . held by the Federal

Government in trust for the benefit” of a tribe qual

fies as Indian country)

The defendants argue that the federal govern

ment’s administration of these lands in trust 1s insuf.

ficient to meet the Supreme Court’s definition. of

dependent Indian communities as if was announced

and applied in Venetie That case involved lands held

App. 44

under the Alaska Native Claims Settlement Act

(ANCSA), Pub.L.. No. 92-203, 85 Stat. 688 (codified as

amended at 43 U.S.C. § 1601 et seqg.). ANCSA was

specifically “intended to avoid a ‘lengthy wardship or

trusteeship.’” Venetie, 522 U.S. at 533, 118 S.Ct. 948.

As the Court observed, ANCSA explicitly eliminated

the Venetie Reservation and transferred the lands “to

private, state-chartered Native corporations, without

any restraints on ahenation or significant use

restrictions, and with the goal of avoiding ‘any per

manent racially defined institutions, rights, privileg-

es, or obligations.’” /d. at 532-33, 118 S.Ct. 948. The

land at issue in Venetie thus had virtually no resem

blance to the Yankton Sioux trust land. Conveyance of

the latter remains subject to the Secretary’s oversight

and approval, and the government. continues to hold

title to the land in trust, to administer Jeases on it,

and to provide law enforcement services on 1t

Consequently, we conclude that the miscellane-

ous trust lands at issue in this case qualify as de

pendent Indian communities and are Indian country

under § L151(b).

1)

The Tribe and the United States also urge us to

uphold the district court’s determination that former

allotments which have been continuously held in fee

App. 45

by Indian owners constitute reservation land. The

defendants seek reversal.”

Although we might assume that such lands exist,

the record does not identify any or their relevant

histories. We therefore conclude that this issue 1s not

ripe for resolution. “The ripeness doctrine flows both

from the Article IIT ‘cases’ and ‘controversies’ limita-

tions and also from prudential considerations for

refusing to exercise jurisdiction.” Neb. Pub. Power

Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1037

(8th Cir.2000). In Nebraska Public Power District, we

held that “to resolve an issue lacking factual devel

opment simply to avoid a threatened harm would be

to favor expedition over just resolution.” Jd. at 1089.

Here, a number of potentially important facts are

missing with respect to Indian owned fee lands

continuously held by tribal members. To start, no one

has identified which, if any parcels, fit within thts

category. Moreover, the status of such lands may

depend on a number of unknown factors, including

whether the allotments expired at the natural end of

the trust period, whether the fee patents were tssued

The defendants maintain that our mandate in Gaffey I]

limited the district court to an analysis of trust lands This ts

incorrect, for we noted that the record then before us was

insufficient to address the issue of fee lands continuously held in

Indian ownership, 188 F 3d at 1030, and remanded “for further

proceedings consistent with this opinion,” id at 1031. There was

no exphat or impheit instruction limiting the district court to

consideration of trust lands

App A6

at the request of allottees, or whether the fee patents

were “forced” on allottees pursuant to the Burke Act

After deciding that this category of land remained

reservation, the district court noted that many of

these historical facts could be developed by consulting

“the land title records maintained by the BIA’s Realty

Office.” Podhradsky, 529 F.Supp 2d at 1056-57. Such

facts are currently absent in the record before us, and

general conclusory descriptions do not clarify who can

exercise jurisdiction over an area. Without the benefit

of a fully developed record on these issues, we decline

to consider this question and accordingly vacate that

portion of the district court's decision and judgment

}

The Tribe further asserts that two Congressional

enactments — the Act of March 8, 1927, § 4, ch. 299,

14 Stat. 1347 (codifMed as amended at 25 U.S.C

SY 398d) (1927 Act), and the 1934 TRA froze the

boundaries of the reservation. Consequently, it) ar

gues, any lands alienated in fee to whites during the

effective period of any such freeze should be consid

ered part of the reservation. The district court deter

mined, however, that the 1927 Act does not apply to

the Yankton Sioux Reservation and that whatever

freeze the IRA may have imposed was lifted by the

Supervised Sales Act, ch. 293, 62 Stat. 236 (1948)

(codified at 25 U.S.C. § 483) (Sales Act). The United

States and the defendants ask us to uphold the

district court rulings on these issue

\pp + j

With respect to the 1927 Act, the Tribe maintain:

that the statute prohibited alterations to the bounda

ries of any Indian reservation except by act of Con

vress. The defendants respond that the plain terms of

the 1927 Act limit its application to reservation:

created by executive action rather than by treaty. The

district court agreed with the defendants and con

cluded that the statute was inapplicable in the cur

rent dispute

‘

i

By the mid nineteenth century, Presidents “had

begun to withdraw public lands from sale by execu

tive order for the specific purpose of establishing

Indsan reservations.” Sioux Tribe of Indians v. United

States, 316 U.S. 317, 325, 62 S.Ct. 1095, 86 L.Ed

1501 (1942). Although there were initial question:

about the legitimacy of these “executive order” reser

vations, any doubts were removed by United States v

Midwest Oil Co., 236 U.S. 459, 385 S.Ct. 309. 59 L.Ed

673 (1915), in which the Supreme Court held that the

President has the power to withdraw lands from the

public domain even in the absence of express statuto

ry authority. These executive order reservations are

nonetheless distinguishable from those created b

treaty or by act of Congress

The language of the 1927 Act does indeed limit

Its application to executive order reservations

“|Hlereafter changes in the boundaries of reserva

tions created by Executive order, proclamation, or

otherwise for the use and occupation of Indians shall

not be made except by Act of Congress ” 44 Stat

at 1347 (emphasis added). The natural meaning of

App. 48

this language 1s that it apples only to reservations

created by the executive branch, whether by execu-

tive order, executive proclamation, or other executive

action, and Sioux Tribe of Indians recognizes as

much. 316 U.S. at 325 n. 6, 62 S.Ct. 1095 (“In 1927

Congress added a provision that any future changes

in the boundaries of executive order reservations

should be made by Congress alone.” (emphasis add-

ed)). The Yankton Sioux Reservation was created by

the 1858 Treaty, is not an executive order reservation,

and is therefore outside the freeze contemplated by

this statute.

The Tribe also argues that the 1934 IRA froze the

reservation’s boundaries. Section 2 of that act indefi-

nitely extended the trust period for all outstanding

allotments, 48 Stat. at 984 (codified at 25 U.S.C

162), while $4 states that “[e]xcept as herein pro

vided, no sale, devise, gift, exchange or other transfer

of restricted Indian lands ... shall be made or ap-

proved....” Jd. at 985 (codified as amended at 25

UL.S.C. § 464). The district court concluded that these

provisions effectively froze any further diminishment

of the Yankton Sioux Reservation, but 1t also concluded

that the Supervised Sales Act, ch. 293, 62 Stat. 236

(1948) (codified at 25 U.S.C. § 483) (Sales Act), lifted

whatever freeze was imposed. See Oglala Stoux Tribe

of Pine Ridge Indian Reservation v. Hallett, 708 F.2d

326, 330-31 (Sth Cir.1983) (concluding that the Sales

Act lifted restriction

We have never squarely confronted the effect of

the IRA on the Secretary’s authority under the Burke

App. 49

Act to issue fee patents to “competent” allottees,

thereby removing trust restrictions on the alienation

and conveyance of Indian lands. However, in Oglala

Sioux Tribe, we assumed without deciding that the

IRA had effectively frozen the Secretary's ability to

issue fee patents. Jd. at 330. In the same case, we also

determined that the Sales Act had lifted any such

freeze. Jd. at 330-31.

The Tribe argues that allotments on the Yankton

Sioux Reservation were unaffected by the Sales Act

since they had been granted under the Dawes Act and

the 1891 Act, not under the IRA. While it is true that

by its terms the Sales Act applies to allotments “held

under” the IRA, 25 U.S.C. § 483, we concluded in

Oglala Stoux Tribe that by extending indefinitely the

trust peniods of previously awarded allotments, the

IRA brought within its protection even allotments

awarded prior to its enactment. 708 F.2d at 331. In

other words, the Yankton Sioux allotments, although

originally granted under the Dawes Act and the 1891

Act, would have expired but for the IRA's extension of

the trust period. That is enough for them to be “held

under” the IRA. “[T]he allotments would not be

‘held’... at all without the Indian Reorganization

Act.” Jd. Since the trust periods on the Yankton

allotments would have expired but for the IRA, they

are “held” under that statute and any freeze imposed

on their conveyance was lifted by the Sales Act.

The Tribe argues that even if the Sales Act did

undo an IRA imposed freeze, land conveyances in fee

to whites during the effective period of the freeze

} } ae } } }

were improper and should be disregarded for th

I t

purpose of defining the reservation’s current bounda

ries. The Tribe’s arguments sufier from an insuffi

ent factual record. however. As the district court

noted with respect to the Tribe's 1934 freeze claim

“no proper foundation was established for the admis

sion of evidence’ indicating that any land would

have been affected by such a freeze. Gaffey I, 52

EF. Supp.2d at 1051. We conclude that the Tmbe’s claim

that the reservation boundaries were frozen in 1934

1 }

not rine TOY’ resoLuti T) T) T ‘ T’¢ org eETOTrS

the absence of any clear congressional inte

divest allotted lands on the Yankton Sioux Res«

vation of their reservation status, those lands re

tained such status, and all outstanding allotment

continue to be reservation under § 115l(a). Further

more, lands originally part of the Tribe’s 1858 reser

vation regained their status as reservation land

under § 115l(a) when acquired in trust under the

Indian Reorganization Act. The miscellaneous trust

lands, by contrast, qualify as part of a dependent

Indian community and are therefore Indian country

under §$115l(b). Finally, the record regarding fee

. } | ? 4

lands continuously held by tribal member no.r

r review

»

~~

606 F.3d 985

United States Court of Appeals,

Eighth Circuit.

YANKTON SIOUX TRIBE, and its individual

members, Plaintiffs-Appellees/Cross-Appellants,

United States of America, on its own behalf and for

the benefit of the Yankton Sioux Tribe, Intervenor

Plaintiff-Appellee,

v.

Scott J. PODHRADSKY, State’s Attorney of Charles

Mix County; C. Red Allen, member of the Charles

Mix, South Dakota, County Commission; Keith

Mushitz, member of the Charles Mix, South Dakota,

County Commission; Sharon Drapeau, member of the

Charles Mix, South Dakota, County Commission;

M. Michael Rounds, Governor of South Dakota;

Lawrence E. Long, Attorney General of South

Dakota, Defendants-Appellants/Cross-Appellees,

Southern Missouri Waste Management District,

Interested Party.

Rosebud Sioux Tribe, Amicus on behalf of Appellees.

Nos. 08-1441, 08-1488.

May 6, 2010.

Order on Petitions for Rehearing.

Before MURPHY, MELLOY, and SHEPHERD, Cir

cuit Judges.

Appellant officials of the State of South Dakota

and Charles Mix County filed petitions for rehearing

and rehearing en banc of the court’s August 25, 2009

decision in this matter. The Yankton Sioux Tribe and

the United States filed their individual responses to

the petitions on January 25, 2010, supporting the

court’s decision and judgment. Now before the court

are the petitions for panel rehearing

In the meantime we have permitted amici to file

six briefs in support of the petitions and granted a

motion by the state appellants to file a supplement to

their petition. Still pending are motions by the Rose-

bud Sioux Tribe to file an amicus brief opposing the

petitions and by the county appellants to file a sup.-

plemental petition for rehearing and rehearing en

banc. The United States and the Yankton Sioux Tribe

have filed oppositions to the county appellants’ mo-

tion, which was filed the same day as the responses to

the original petitions. The Tribe has also argued that

the new factual materials submitted by the state

appellants in their petition and the supplement

thereto should be stricken

Recently petitioners filed a joint motion on April 6,

2010 seeking leave to amend their petitions for rehear

ing to include new arguments based on City of Sherrill

v. Oneida Indian Nation, 544 U.S. 197, 217-21, 125

S.Ct. 1478, 161 L.Ed.2d 386 (2005), and also proposing

that the court “remand this case to the district court

to allow the district court an opportunity to consider

l ‘ ‘ }

The amici supporting the petitions are the Charles Mix

Electmc Association, several South Dakota counties which

include former Indian allotments, the Wagner Community

School Distnct, the Southern Missouri Waste Management

District, several cities within the omginal boundanes of thx

Yankton Sioux Reservation, and a number of individuals wh:

own land within the onginal boundanes of the reservation

App. 54

[City of Sherrill), or in the alternative, determine the

case in [their] favor... or, in the further alternative,

allow the parties to fully brief the issues for the panel

and the Court.” Motion to Support Proposed Amend-

ment to State and County Petitions for Rehearing

and Rehearing en Banc at 1. The Tribe and the Unit-

ed States filed responses in opposition to this belated

motion on April 16, 2010.

Petitioners based their original requests for

rehearing on two primary grounds. They object to

some language in our 2009 opinion touching on

former allotments within the original boundaries of

the Yankton Sioux Reservation which were patented

in fee after 1948. Petitioners also renew their earlier

unsuccessful arguments that the Yankton Sioux

Reservation has been disestablished, continuing to

disagree with the decision to the contrary reached

more than ten years ago after extensive litigation in

Yankton Sioux Tribe v. Gaffey (Gaffey Il), 188 F.3d

1010 (8th Cir.1999), reh’g and reh’g en banc denied,

cert. denied, 530 U.S. 1261, 120 S.Ct. 2717, 147

L.Ed.2d 982 (2000).

What petitioners have generally not done in their

petitions for rehearing is to attack the judgment

actually rendered by the court on August 25, 2009.

Instead, they raise a virtual smokescreen by focusing

on dicta in a single footnote of our 37 page decision.”

* Footnote 10 in the opinion read as follows

It is unclear from the record whether any allotments

have been patented in fee since 1948 and subsequently

(Continued on following page)

SRE nearer neat eee

App. 55

The second and third sentences of that footnote are

the basis from which petitioners mount their attack,

but these sentences did not speak to any matter

actually litigated or decided in this case. Nor was

such language ever incorporated into our judgment

which only determined the status of trust lands

within the former boundaries of the Yankton Sioux

Reservation, our judgment in Gaffey I] having deter-

mined that the reservation had never been disestab-

lished.

That petitioners are well aware of the limited

scope of our judgment is evidenced by the county’s

letter proposing that the language which they attack

be added to the court’s judgment. Letter from Tom D.

Tobin to Michael E. Gans, Clerk of Court (Nov. 5,

2009) (noting that the proposition that “allotments

patented in fee since 1948 and now held by non-

Indians continue to be Indian country under the

terms of 18 U.S.C. § 1151(a) ... does not appear to be

included or set forth in the paragraph at the conclu-

sion of the opinion” and requesting that the clerk

bring that “possible oversight” to the attention of the

court). In drafting the judgment in Part V of the

August 2009 opinion the court acted intentionally in

stating all matters it actually decided 1n this case.

sold to white owners. If such lands exist, however,

they would continue to be Indian country under the

clear terms of § 115](a) The holding in Gaffey J] that

lands which passed into white ownership lost reserva

tion status thus only applies to pre 1948 conveyances

App. 56

In sum, petitioners raise objections to issues

which the court did not decide and which are beyond

the scope of this litigation. They raise concerns about

the possible consequences of a decision which the

court has not reached. Since the language on which

petitioners have focused is extraneous to what was

actually decided by the court, we will grant the

petitions for rehearing for the limited purpose of

withdrawing the opinion filed on August 25, 2009 and

replacing it with a revised opinion. The revised

opinion contains the identical judgment but elimi

nates footnote 10 and several textual asides touching

on matters not litigated or decided, but which have

possibly been misunderstood

The long history of this litigation which began in

1994 is set out in detail in our decision. Yankton

Sioux Tribe v. Podhradsky (Podhradsky II), 577 F.3d

951, 959-60 (8th Cir.2009). The latest chapter of the

case was initiated by our 1999 remand to the district

court in Gaffey IT, a decision on which the Supreme

Court denied certiorari. Gaffey //] held that the

Yankton Sioux Reservation was never disestablished

and that some original agency lands identified by

the Supreme Court in South Dakota vu. Yankton

Sioux Tribe, 522 U.S. 329, 350, 118 S.Ct. 789, 139

L.Ed.2d 773 (1998), remained part of a continuing

reservation. See Gaffey Il, 188 F.3d at 1030. We

observed that the record before the court was inade

quate to “define the precise limits” of the remaining

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App. 62

determination. “The purpose of a petition for rehear-

ing ... is to direct the Court’s attention to some

material matter of law or fact which it has overlooked

in deciding a case, and which, had it been given

consideration, would probably have brought about a

different result.” NLRB v. Brown & Root, Inc., 206

IK. 2d 73, 74 (8th Cir.1953); see also Fed. R.App. P.

40(aX2); 16A Charles Alan Wright, Arthur R, Miller,

& Edward H. Cooper, Federal Practice & Procedure

§ 3986.1 (4th ed. 2008) (“It should go without saying

that a petition for rehearing should not be filed

simply to reargue matters already argued unsuccess-

fully in the onginal appeal proceedings.”

Petitioners do seek support for their disestab-

lishment argument in a recent Tenth Circuit decision,

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir.2010)

In Osage Nation, the Nation sought a declaration that

its members residing and employed in Osage County,

Oklahoma were exempt from paying state income tax

because the county was still Indian country. See id. at

1120. The court concluded, however, that the Osage

Nation's former reservation had been disestablished

by a 1906 Act of Congress. Jd. That 1906 statute has

no equivalent in the history of the Yankton Sioux, and

the respondents argue that Osage Nation is not in

any way inconsistent with our decision in this case

We agree.

Osage Nation addressed a unique surplus land

act and a reservation with a historical context unlike

that of the Yankton Sioux Reservation. Applying

familiar legal principles, the Tenth Circuit discerned

>

—

>

.

e

The state appellants also seek rehearing on the

cround that the court wrongly determined that lands

within the former boundaries of the Yankton Sioux

Reservation which were taken into trust under the

Indian Reorganization Act are part of the reservation

under § 115l(a). They argue that under 25 U.S.C.

§ 467, such reacquired lands cannot become part of a

reservation unless the Secretary of the Interior has

made a formal proclamation to that effect. Petitioners

also claim that our decision conflicts with United

States v. Stands, 105 F.8d 1565 (8th Cir.1997). As the

United States points out, however, these contentions

essentially recapitulate arguments already raised

and correctly addressed on appeal. See Podhradsky II,

d77 F.3d at 968-69.

As we have explained, 25 U.S.C. § 467 does not

require a proclamation from the Secretary when that

official “decides to add land to a preexisting reserva-

tion such as that of the Yankton Sioux.” /d. at 969.

Rather, the statute authorizes the Secretary both “to

proclaim new Indian reservations ... or to add such

lands to existing reservations. /d. at 968-69. (quoting

25 U.S.C. § 467) (emphasis in original). Congress thus

explicitly provided for land to be added to existing

reservations without a proclamation. Because the

IRA trust lands in this case were simply returned to

an existing reservation, no proclamation was neces

sary to restore their reservation status.

App. 65

Petitioners rely on Stands for the proposition

that “tribal trust land beyond the boundaries of a

t :

105 F.3d at 1572. This argument was directly ad-

dressed in our decision. See Podhradsky II, 577 F.3d

at 968 n. 13. The language in Stands on which peti-

tioners rely is classic dicta. The question on which the

case turned was not whether any trust lands were

part of a reservation, but simply whether a particular

plot of land was “an Indian allotment, the Indian title

to which has not been extinguished.” Stands, 105 F.3d

at 1571. The Stands court neither considered nor

decided matters bearing directly on the status of the

IRA trust lands in this case.

The petitions for rehearing merely reiterate

arguments related to the JRA trust lands which were

already soundly rejected on appeal, and they conse-

quently fail to satisfy the standards for panel rehear-

ing.

V.

We turn finally to the pending motions. Despite

over fifteen years of litigation and the voluminous

record in this case, petitioners now seek to add more

factual information in support of their petitions. To

that end, the state appellants filed with their peti-

tion for rehearing six maps intended to illustrate the

jurisdictional changes wrought at various stages of

this litigation. Only two of these maps were previ-

ously in the record (maps D and E). The county

App. 66

appellants also filed copies of each of these maps with

their petition, along with an affidavit of Jo Ann

Mazourek, the Director of Equalization for Charles

Mix County, summarizing her examination of records

relating to former allotments patented in fee after

1948.

On January 13, 2010 we granted the state appel-

lants’ motion to file a supplement to their petition

containing a revised affidavit by Ms. Mazourek

stating that 8,939.47 acres of land left allotted status

and were patented in fee after the 1948 enactment of

18 U.S.C. § 1151, and Map G, which shows the loca-

tions of those fee parcels. Her affidavit also suggests

that, based upon her assessment of whether the

titleholder has an Indian name or not, over 90 per-

cent of that fee land is not owned by Indians today.

The county appellants also moved on January 285,

2010 to file a supplemental petition for rehearing and

for rehearing en banc. That supplemental petition

included additional argument attacking the court’s

decision, copies of the revised Mazourek affidavit and

Map G, 22 pages of quoted excerpts from various

treatises and judicial opinions, and an excerpt from

the transcript of the 1998 oral argument before the

Supreme Court in South Dakota v. Yankton Sioux

Tribe.

The Tribe argues that the maps and affidavits

not in the record when the court reached its decision

must be stricken. We agree. New factual matemnal

may be considered on a petition for rehearing only in

App. 67

the rarest circumstances. See Smith v. Armontrout,

865 F.2d 1502, 1505 n. 5 (8th Cir. 1988). This case falls

within the rule, not the exception, particularly be-

cause the proposed new information concerns matters

not decided by the court or necessary to its decision.

Accordingly, maps A, B, C, F, and G, and the

Mazourek affidavits should be stricken from the

record.

The Tribe and the United States also argue that

the county appellants’ motion to file a supplemental

petition for rehearing should be denied. The factual

exhibits included with the county’s supplemental

petition were already filed by the state appellants

with their supplement. Aside from those duplicative

materials, the supplemental petition largely restates

earlier arguments and seeks to buttress them with

extensive unanalyzed quotations from legal texts. To

the limited extent the supplemental petition offers

new arguments, there ts no apparent reason they

could not have been included in the original petition.

We see no reason to permit the filing of what amounts

to an overlength petition more than two months after

the already extended filing deadline. To do so would

unnecessarily prolong this already extended process.

The county appellants’ motion should therefore be

denied.

The Rosebud Sioux Tribe’s motion for leave to file

an amicus brief should be granted, just as were the

motions of the amici supporting petitioners.

App. 68

Finally, petitioners’ April 2010 motion to enlarge

their petitions must be denied. In that motion, peti-

tioners argue that City of Sherrill supports both their

disestablishment claim and their claim that former

allotments patented in fee after 1948 are not part of

the reservation. As to the first issue, the Tribe points

out that the lands at issue in City of Sherrill were

located in an area with less than one percent Indian

population and out of Indian hands for some 200

years. City of Sherrill, 544 U.S. at 211, 216, 125 S.Ct.

1478.

We need not examine the significant differences

between City of Sherrill and the present case in any

detail because it is far too late for petitioners to

present an entirely new theory in support of disestab-

lishment. Petitioners have not previously relied upon

that 2005 case, nor did they raise the equitable

doctrines on which it relies in the district court, on

appeal, or even in their petitions for rehearing. “Pan-

el rehearing is not a vehicle for presenting new

arguments,” Easley v. Reuss, 5382 F.3d 592, 593-94

(7th Cir.2008) (per curiam), and we do not ordinarily

consider arguments raised for the first time in a

petition for rehearing, see In re Hen House Interstate,

Inc., 177 F.3d 719, 724-25 (8th Cir.1999) (en banc).

Petitioners have had years to develop their litigation

strategy, and City of Sherrill was decided more than

two years before the parties briefed the merits of the

current dispute in the district court. Petitioners “can

not now, after failing to prevail on [their] original

theories, invoke an entirely new theory in support of”

App. 69

their position. United States v. Klotz, 503 F.2d 1056,

1056 (8th Cir.1974) (per curiam). As for the post 1948

fee lands, their status was not part of our 1999 re-

mand to the district court (or its decision) and was

not determined in our 2009 decision and judgment.

Petitioners’ recent motion for a renewed remand to

the district court thus seeks not only to raise a new

argument, but entirely new claims related to a cate-

gory of lands not at issue below or on appeal. It of

course remains open to the parties to file new actions

in the district court if they choose. A remand to the

district court of issues beyond the scope of this

lengthy litigation would be wholly inappropriate.

VI.

This order as wel] as the amended opinion will

moot some issues in the current petitions for rehear-

ing and rehearing en banc. All of the parties should

therefore have the opportunity to file any new peti-

tions within 45 days from the entry of this order and

of the amended opinion.

VI.

For the foregoing reasons it is hereby ordered

that:

(1) The petitions for panel rehearing are

granted to the extent that the dicta dis-

cussed herein shall be stricken from the

court’s opinion filed in this case on August

25, 2009;

— a...

App. 70

(2) The opinion filed in this matter on Au-

gust 25, 2009 and reported at 577 F.3d 951 is

withdrawn and our amended opinion shall be

substituted and filed concurrently with this

order;

(3) The Rosebud Sioux Tribe’s motion for

leave to file an amicus brief is granted;

(4) The motion of Charles Mix County for

leave to file a supplemental petition for re

hearing is denied;

(5) Maps A, B, C, F, and G, and the affida

vits of Jo Ann Mazourek filed with the peti

tions for rehearing and the state appellants’

supplement are stricken from the record; and

(6) PETITIONERS’ MOTION FOR LEAVE

TO AMEND THE PETITIONS FOR RE-

HEARING IS DENIED. THE REQUESTS

IN THE MOTION FOR DECISION IN PE

TITIONERS’ FAVOR, REMAND, OR FUR

THER BRIEFING ARE ALSO DENIED..

(7) Any new petitions for rehearing and re

hearing en banc shall be filed within 45 days

of the entry of this order and of the amended

opinion.

App. 71

077 F.3d 951

United States Court of Appeals,

Eighth Circuit.

YANKTON SIOUX TRIBE, and its individual

members, Plaintiffs-Appellees/Cross-Appellants,

United States of America, on its own behalf and

for the benefit of the Yankton Sioux Tribe,

Intervenor Plaintiff-Appellee,

v.

Scott J. PODHRADSKY, State’s Attorney of Charles

Mix County; C. Red Allen, member of the Charles

Mix, South Dakota, County Commission;

Keith Mushitz, member of the Charles Mix,

South Dakota, County Commission; Sharon Drapeau,

member of the Charles Mix, South Dakota, County

Commission; M. Michael Rounds, Governor of

South Dakota; Lawrence E. Long, Attorney General

of South Dakota, Defendants-Appellants/

Cross-Appellees,

Southern Missouri Waste Management District,

Interested Party.

Rosebud Sioux Tribe, Amicus on behalf of Appellees.

Nos. 08-1441, 08-1488.

Submitted: March 11, 2009.

Filed: Aug. 25, 2009.

Rebecca L. Kidder, Rapid City, SD, argued, for

Appellee Yankton Sioux Tribe.

Mark E. Salter, Asst. U.S. Atty., Sioux Falls, SD,

argued (Jan Leshe Holmgren, Asst. U.S. Atty., on the

brief), Katherine Wade Hazard, U.S. Department of

Justice, Washington, DC, for Intervenor Plaintiff-

Appellee.

App. ta

land to the United States had diminished, rather

than disestablished, the reservation and that some

land retained reservation status. Yankton Sioux Tribe

v. Gaffey (Gaffey IJ), 188 F.3d 1010 (8th Cir.1999),

cert. dented, 530 U.S. 1261, 120 S.Ct. 2717, 147

L.Ed.2d 982 (2000). We remanded to the district. court

for further development of the record and for “find-

ings relative to the status of Indian lands which are

held in trust.” Gaffey 1/, 188 F.3d at 1030.

An earlier action had been filed by the Tribe

against the Southern Missouri Waste Management

District (Waste District), seeking a declaration that

the 1858 boundaries of the reservation remained

intact and that therefore a particular site at issue

was subject to federal environmental regulation.

After the Tribe prevailed in the district court and on

appeal, Yankton Sioux Tribe v. S. Mo. Waste Mgmt.

Dist., 890 F.Supp. 878 (D.S.D.1995), aff'd, 99 F.3d

1439 (8th Cir.1996), the Supreme Court reversed. In

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

118 S.Ct. 789, 1389 L.Ed.2d 773 (1998), the Supreme

Court held that the Yankton Sioux Reservation had

been diminished by the Tribe’s cession of certain

lands to the United States in 1894 and that the parcel

at issue in the Tribe's dispute with the Waste District

was not reservation land. The Court remanded for

The TPnbe has never dismissed its action against the

Waste District which remains an inactive interested party, not

having filed a notice of appeal. The distmet court observed that

(Continued on following page)

App.

the changing policies of the federal government over

the succeeding years.

In the first half of the nineteenth century, federal

Indian policy focused on removing tribes from the

eastern half of the country and relocating them on

western lands, but by the time of the 1858 Treaty,

“federal policy had shifted fully from removal to

concentration on fixed reservations.” Cohen’s Hand-

book of Federal Indian Law § 1.03[6][a], at 65 (2005

ed.) (Cohen). These reservations were “envisioned as

schools for civilization, in which Indians under the

control of the agent would be groomed for assimila-

tion.” Id

As the westward migration of white settlers

accelerated following the Civil War, pressure grew to

open Indian reservations for agricultural and re-

source development by the newcomers. Supporters of

Indian assimilation argued that as more Indians

adopted white customs and agricultural practices,

their need for large tracts of reservation land would

diminish, freeing vast areas for white settlement and

development. This approach was formalized in the

General Allotment Act of 1887 (Dawes Act), ch. 119,

24 Stat. 388 (repealed in part by Pub.L. No. 106-462

s 106, 114 Stat.1991, 2007 (2000))

Under the Dawes Act. the executive branch wa

US

authorized to divide portions of Indian reservations

into personally assigned allotments to be distributed

to individual tribal members. /d. § 1, 24 Stat. at 388.

he Secretary of the Interior was directed to issue

App. 77

patents, under which the United States would hold

title to the allotments in trust for twenty five years

“for the sole use and benefit of the Indian to whom

such allotment shall have been made.” /d. $5, 24

Stat. at 389. At the end of the trust period, allottees

would take fee simple ownership of their individual

plots, free of any restrictions against sale or aliena-

tion to non Indians. /d. Furthermore, once a reserva-

tion had been divided into allotments, the

government was empowered to negotiate with the

tribes for the purchase of unallotted surplus land and

to open such areas to white settlement. Jd.

The allotment policy in general and the Dawes

Act in particular were intended to hasten the demise

of the reservation system and to encourage Indian

assimilation into the white system of private property

ownership. “Within a generation or two, it was

thought, the tribes would dissolve, their reservations

would disappear, and individual Indians would be

absorbed into the larger community of white settlers.”

Yankton Sioux Tribe, 522 U.S. at 335. 118 S.Ct. 789.

Acting under the authority of the Dawes Act,

federal agents allocated to tribal members individual

allotments comprising 167,325 acres of the then

430,405 acre Yankton Sioux Reservation. Another

95,000 acres were subsequently allotted to tribal

members under the Act of February 28, 1891, 26 Stat

794 (1891 Act). These tribal allotments, totaling ap-

proximately 262,300 acres, were not contiguous par

cels of land. Rather, the individual allotments were

scattered across the reservation and interspersed

App. 78

with approximately 168,000 acres of unallotted

(*

surplus land. Commissioner's Letter at 5.

In 1892 a three member Yankton Indian Com-

mission, which represented the Secretary of the

Interior, traveled to the reservation to discuss the

federal government’s interest in acquiring the Tribe’s

surplus land. After lengthy negotiations, the Tribe

agreed to sell all of the unallotted acreage to the

United States for $600,000. The ceded land was then

to be opened to white settlement, with the exception

of roughly 1,000 acres specifically reserved for use by

the United States for “agency, schools, and other

purposes.” Act of August 15, 1894, ch. 290, 28 Stat.

286, 316 (1894 Act). These set aside agency reserve

lands were expected to be opened for white ownership

at such time as they were no longer needed for the

Tribe’s support. Jd. The Supreme Court has com-

mented that the set aside of these agency lands ts

evidence that Congress envisioned an ongoing reser-

vation despite the sale of the surplus lands. Yankton

Sioux Tribe, 522 U.S. at 350, 118 S.Ct. 789.

Congress ratified the cession agreement by

statute in the 1894 Act, and in May 1895 President

Grover Cleveland issued a proclamation opening the

ceded land to white settlement. In Yankton Sioux

Tribe the Supreme Court ruled that the land ceded to

the United States under the 1894 Act was thus no

longer part of the Yankton Sioux Reservation but

fully subject to the jurisdiction of South Dakota. 522

U.S. at 358, 118 S.Ct. 354. By the end of the nine-

’

teenth century federal Indian policy had therefore

App. 79

reduced the Tribe’s land holdings from a sizeable

communal reservation to a checkerboard of individual

allotments intermingled with white homesteads.

Subsequently Congress passed the Act of May 8,

1906, ch. 2348, 34 Stat. 182 (Burke Act), amending

§ 6 of the Dawes Act. The Burke Act gave the Secre-

tary of the Interior the discretion to remove allotted

land from trust status and to issue fee simple pa-

tents, either upon the death of an Indian allottee or

upon a finding that an allottee was “competent and

capable of managing his or her affairs.” 34 Stat. at

183. Upon issuance of fee simple patents, such Indian

owned land would then be freely alienable to white

settlers. As a result of fee patents issued under the

Burke Act, tribal allotments began passing into white

hands well before the expiration of the original twen-

ty five year trust period set by the Dawes Act. By

1930, tribal members held only 43,358 acres of land

out of the more than 262,300 acres originally carved

into Indian allotments.’ Herbert T. Hoover, A Yankton

* The Tmbe argues that the Burke Act did not apply to

allotments made on the Yankton Sioux Reservation and that

therefore some 300 “forced fee patents” issued under it should be

considered null and void The Tribe did not raise this argument

until after the case was before the distmct court for the third

time. As that court noted, “[t)here is a limit as to what

should be undertaken . to determine reservation boundary

issues that were not raised or addressed by this Court nor the

supenor courts. This issue . [is] beyond the scope of this

litigation ” Yankton Sioux Tribe v Gaffey, No CIV 98-4042,

2006 WL 3703274, at *3(DSD Dec 18, 2006) (order identifying

the issues to be considered on remand) We agree

App. 80

Sioux Tribal Land History 5 (1995) (unpublished

manuscript).

In 1916, recognizing the rapid erosion of the

Tribe’s allotted lands, President Woodrow Wilson

issued an executive order extending by ten years the

trust period on all but approximately 150 of the

parcels still held in trust on the Yankton Sioux Res-

ervation. Exec. Order No. 2363, Apr. 20, 1916. The

trust periods were again extended in 1926 and 1929.

Exec. Order No. 4406, Mar. 30, 1926; Exec. Order No.

5173, Aug. 9, 1929. In 1929 Congress also reconsid-

ered the disposition of the roughly 1,000 acres of land

which had been set aside for “agency, schools, or other

purposes.” Although the 1894 Act omnginally envi-

sioned that these lands would be opened to white

settlement once they had served their intended

purposes, Congress decided instead to return them to

the Tribe and specifically precluded any allotments on

these parcels. Act of February 18, 1929, ch. 183, 45

Stat. 1167 (1929 Act).

During this period, the consequences of the

allotment and assimilation policies became acutely

obvious. The process of allotment and the liberalized

issuance of fee patents under the Burke Act left many

Indians landless and reduced once coherent commu-

nities to jurisdictional checkerboards, as is currently

reflected in respect to the Yankton Sioux Reservation.

Cohen, § 1.04, at 78. Moreover, “[t]he process of

transforming Indian culture into white culture proved

more difficult than placing an Indian name on allot-

ted land deeds.... [T]he cultural resilience of the

App. 8]

American Indian amazed even the most dedicated

reformer.” /d. at 80.

By the early twentieth century, the forces behind

allotment and assimilation were nearly exhausted,

and federal policy was reoriented towards “new

protections for Indian rights, support for federally

defined tribalism, and encouragement of historical

and anthropological concerns such as arts, crafts,

native rituals, tourism, and traditional economic

systems.” Jd. § 1.05, at 84. In time this new attitude

led to the Indian Reorganization Act of 1934(IRA), ch.

576, 48 Stat. 984 (codified as amended at 25 U.S.C.

§ 461 et seg.).

The IRA reflected a fundamental change in

federal Indian policy. It prohibited further allotment

of Indian lands and indefinitely extended the trust

periods for outstanding allotments. The Act also

authorized the Secretary of the Interior to acquire

additional lands in trust — both on and off reservation

— and either to proclaim these lands part of a new

reservation or to add them to an existing one. Since

the passage of the IRA, the government has taken

almost 6,500 acres into trust for the benefit of the

Yankton Sioux Tribe.

This tangled history, along with the inconsistent

and sometimes contradictory policies pursued by the

national government, has produced a confusing patch-

work of land holdings and jurisdictional claims within

the original 1858 boundaries of the reservation. For

App. 82

ease of exposition, we have identified six general

categories of land.

(1) Allotted Trust Lands: lands allotted to

members of the Tribe which have been con-

tinuously held in trust for the benefit of the

Tribe or its members. This category includes

allotments which were later transferred from

individual to tribal control, so long as the

trust status was maintained. The district

court found 30,051.66 acres of land fit this

description.”

(2) Agency Trust Lands: lands ceded to the

United States in the 1894 Act but reserved

for “agency, schools, and other purposes”

which then were returned to the Tribe ac-

cording to the 1929 Act. The district court

identified 913.83 acres of land within this

category. We held this category of land to be

part of the diminished Yankton Sioux Reser-

vation in Gaffey I, 188 F.3d at 1030.

(3) IRA Trust Lands: lands acquired by the

United States in trust for the benefit of the

Tribe pursuant to the IRA. The district court

identified 6,444.47 acres of such land.

(4) Miscellaneous Trust Lands: lands ac-

quired by the United States in trust for the

benefit of the Tribe other than pursuant to

" In Yankton Sioux Tribe the Supreme Court mentioned

30,000 acres held in trust for individual Indians and 6,000 acres

of “tribal lands ” 118 S.Ct. at 796.

ren tenenennentereeeneiil

App. 83

the IRA. Approximately 174.57 acres fit

within this category.

(5) Indian Fee Lands: allotted lands later

transferred in fee to individual Indians and

which have never passed out of Indian own-

ership. The record does not identify lands

which may fit this description.

(6) Non Indian Fee Lands: lands ceded to

the United States in the 1894 Act and subse-

quently opened to white settlement which

have not been reacquired in trust; and

noiceded lands originally allotted to tribal

members but later transferred in fee to non

Indians and never reacquired in trust.

Of these six categories, the first four may be generi-

cally referred to as “trust lands” and the last two as

“fee lands.”

The trust lands are spread across the site of the

original 1858 reservation in a complex checkerboard

pattern, intermingled with lands long since occupied

by white homesteaders. As a result the Yankton Sioux

trust lands are not neatly contained within a single

continuous boundary. The defendants urge that this

characteristic shows the reservation has ceased to

exist, but they cite no authority which requires that a

reservation consist of compact, contiguous lands

While the fractured configuration of the Yankton

Sioux Reservation may not seem ideal to various

parties, it is a historic artifact resulting from shifting

federal policy. There was evidence at trial that the

parties have long experience in dealing with this

App. 84

historical reality. For example, defendant Scott

Podhradsky, state’s attorney for Charles Mix County,

testified that local and federal officiais have devel-

oped a respectful and productive working relationship

despite the complex jurisdictional boundaries.

In short, the 11,000,000 acre domain once as

signed to the Tribe was successively fragmented and

dramatically reduced in size: first to roughly 430,400

acres in 1858 and then to 262,300 acres in 1894. The

issues now before us include the status of some

37,600 acres held in trust. Whatever the size of the

remaining reservation lands, there is evidence in the

record that they have continuing relevance and

importance to the Yankton Sioux Tribe as a touch-

stone linking tribal members with each other and

with their common culture, history, and heritage.

Il.

In September 1994 the Yankton Sioux Tribe

commenced its civil action against the Waste District

seeking to prove that the site of a proposed landfill

was in fact located on the Yankton Sioux Reservation

and was therefore subject to federal environmental

regulations. The Waste District filed a third party

complaint and added the State of South Dakota as a

party. In 1995 the district court decided that the

original reservation boundaries as established by the

1858 Treaty remained in force. Yankton Sioux Tribe

v. S. Mo. Waste Mgmt. Dist., 890 F.Supp. 878

(D.S.D.1995), aff’d, 99 F.3d 1439 (8th Cir.1996).

App. 92

reservation. According to the trial transcript, these

witnesses were never asked whether the agency trust

land also qualifies as reservation land, and it is far

from clear that their statements reflect a considered

jurisdictional distinction between reservation land

and various trust properties. More importantly, their

testimony sheds little light on the intentions of either

the nineteenth century parties who negotiated the

agreement between the Tribe and the federal gov-

ernment or of the Secretary of the Interior in making

decisions to add trust land to an existing reservation.

The defendants also point to evidence that the agency

trust lands are located on two distinct parcels and are

not contiguous, which is not surprising given the

checkerboard nature of the allotments.

It is not clear that any of the defendants’ evi-

dence was truly “new” in the sense that it could not

have reasonably been developed and presented in

earlier stages of this litigation. As another court

pointed out in rejecting an attempt to challenge the

law of the case with newly presented evidence,

“[tJhere is nothing in the record to indicate that the

evidence produced at the hearing after remand was

unavailable to the [litigants] during the first trial.

[They] simply chose not to produce that evidence.

They chose their trial strategy, litigated accordingly,

and lost.” Baumer v. United States, 685 F.2d 1318,

1321 (11th Cir.1982).

Most significantly, the rulings in Gaffey lJ have

not been shown to be erroneous. They were based on

an exhaustive analysis of the historical materials

App. 94

the scope of the 1929 Act which returned the balance

of the agency trust lands to the Tribe. These two

parcels were conveyed by fee patents to the Chapter

of Calvary Cathedral Episcopal Church in 1897 and

in 1920. They were thus owned by that church when

Congress directed in 1929 that the agency trust lands

be returned to the Tribe, rather than be opened for

white settlement once they were no longer needed for

their intended purposes. The defendants argue that

because these 106 acres were in private hands at the

time of the 1929 Act, they were not within the Act’s

purview and are thus outside of Gaffey [fs holding

that agency trust land “reserved to the federal gov-

ernment ...and then returned to the Tribe continues

to be a reservation.” 188 F.3d at 1030. Whether the

1929 Act would have applied to these lands is moot,

for in 1944 and 1945 the church returned these lands

to the United States to be held in trust for the Yank-

ton Sioux Tribe. They thus comfortably fit within the

holding of Gaffey IJ and are reservation land under

the controlling law of this case.

IV.

We now turn to the jurisdictional questions at

the heart of this case. Reservation land is by defini-

tion “Indian country,” and as a general rule Indian

country falls under the primary civil, criminal, and

regulatory jurisdiction of the federal government

and the resident Tribe rather than the states. See

Alaska v. Native Village of Venetie Tribal Gov't, 522

U.S. 520, 527 n. 1, 118 S.Ct. 948, 140 L.Ed.2d 30

App. Yo

(1998). Reservation status is not the only way to

qualify as Indian country. Today the definition of

Indian country is found in by 18 U.S.C. § 1151 which

was enacted in 1948 and reads in pertinent part as

follows:

[T]he term “Indian country”... means (a) all

land within the limits of any Indian reserva-

tion under the jurisdiction of the United

States Government, notwithstanding the is-

suance 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 terri-

tory thereof, and whether within or without

the limits of a state, and (ce) all Indian allot-

ments, the Indian titles to which have not

been extinguished, including rights-of-way

running through the same.

Prior to the enactment of § 1151, the evolving

concept of Indian country had mainly been developed

and refined by the courts in their attempts to stay

abreast of changing conditions in the American West

and in federal Indian policy. See Cohen, § 3.04[2][b]

at 184-88.

Section 1151 was orginally enacted to define criminal

jurisdiction, but its definition of Indian country 1s widely

recognized to apply to civil matters as well. See Venetie, 522 U

at 527, 118 S.Ct. 948

App. 96

Congress reentered the debate in 1948 by adopt-

ing § 1151, Act of June 25, 1948, ch. 645, 62 Stat. 683,

757, but the statute mainly codified earlier Supreme

Court decisions regarding Indian country. The lan-

guage in § 1151(b) is taken almost verbatim from the

Court’s conclusion in United States v. Sandoval, 231

U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913), that the

federal government has a “duty of exercising a foster-

ing care and protection over all dependent Indian

communities within its borders, whether within its

original territory or territory subsequently acquired,

and whether within or without the limits of a State.”

Id. at 46. Likewise, § 115l(c) affirms the Court’s

holdings in United States v. Pelican, 232 U.S. 442, 34

S.Ct. 396, 58 L.Ed. 676 (1914), and United States v.

Ramsey, 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039

(1926), that allotments constitute Indian country and

fall within the jurisdiction of the federal government

and the resident tribes.

Section 115l(a) confirms that reservations are

properly considered Indian country and are therefore

under the primary jurisdiction of the federal govern-

ment and the relevant tribes. In this sense it is in

accord with such cases as Bates v. Clark, 95 U.S. 204,

24 L.Ed. 471 (1877), and Donnelly v. United States,

228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913).

However, the enactment of §1151(a) added an im-

portant twist to the nature of reservation land. Ac-

cording to its terms, reservation land remains Indian

country “notwithstanding the issuance of any patent.”

App. 97

Section 1151(a) thus explicitly separates the

concept of jurisdiction from the concept of ownership,

and in so doing Congress superceded prior case law.

For example, Clairmont v. United States, 225 U.S.

551, 32 S.Ct. 787, 56 L.Ed. 1201 (1912), had held that

land “was Indian country whenever the Indian title

had not been extinguished, and it continued to be

Indian country so long as the Indians had title to it,

and no longer. As soon as they parted with the title, it

ceased to be Indian country. ...” Jd. at 558, 32 S.Ct.

787 (quoting Bates, 95 U.S. at 208). Section 1151(a)

abrogated this understanding of Indian country and,

with respect to reservation lands, preserves federal

and tribal jurisdiction even if such lands pass out of

Indian ownership. See Seymour v. Superintendent of

Wash. State Penitentiary, 368 U.S. 351, 357-58, 82

S.Ct. 424, 7 L.Ed.2d 346 (1962) (concluding that

under § 1151(a) reservation status applies even when

land is purchased by a non Indian); see also Solem,

465 U.S. at 468, 104 S.Ct. 1161 (“Only in 1948 did

Congress uncouple reservation status from Indian

ownership. .. .”).

A.

Having ruled in Gaffey // that the Yankton Sioux

Reservation had not been disestablished, we remand-

ed for the district court to consider, among other

matters, the status of allotted trust lands which had

retained their trust status. All sides to this litigation

acknowledge, as they must, that such lands qualify at

the very least as Indian country under § 1151(c),

App. 98

which explicitly identifies allotments as such. The

disputed issue is whether these allotments are also

part of the Yankton Sioux Reservation and therefore

also qualify as Indian country under § 1151(a).

The distinction is important since lands which

qualify only under § 1151(c) would lose their Indian

country status if their governing trusts were ever

terminated or revoked. If these lands also qualify as

reservation, however, their Indian country status

would be considerably more durable. Under § 1151(a)

reservation lands retain their status “notwithstand-

ing the issuance of any patent,” including a patent

which terminated a trust and conveyed the land in

fee simple. After considering the evidence at trial, the

district court held that the allotments were indeed

part of an ongoing reservation and qualified as Indian

country under § 1151(a).

The Supreme Court held in Solem that “lolnce a

block of land is set aside for an Indian reservation . . .

the entire block retains its reservation status until

Congress explicitly indicates otherwise.” 465 U.S. at

470, 104 S.Ct. 1161. Furthermore, as we noted in

Gaffey IT, congressional “liljntent to diminish = or

disestablish a reservation must be ‘clear and plain.’”

188 F.3d at 1021 (quoting United States v. Dion, 476

U.S. 734, 738, 106 S.Ct. 2216, 90 L.Kd.2d 767 (1986)).

While the 1894 Act clearly expressed Congress’s

intention to sever the ceded surplus lands from the

reservation, Yankton Stoux Tribe, 522 U.S. at 357-58,

118 S.Ct. 789, Congress never expressed a similar

intention with respect to the allotted lands. The

App. 110

preeminence in interpreting laws under the Depart-

ment’s jurisdiction, Jang v. INS, 223 F.3d 713, 719

(8th Cir.2000) (according “substantial deference to the

agency’s interpretation of the statutes and regula-

tions it administers”), and has never seen it necessary

to issue a proclamation in respect to the Yankton IRA

trust lands despite this extended litigation. The

interests of the defendants are protected by adminis-

trative procedures in the Department of the Interior

in which trust acquisitions are balanced against a

multitude of factors, including “[j]urisdictional prob-

lems and potential conflicts of land use.” 25 C.F.R.

§ 151.10(f).

The regulations reflect that the acquisition of

former reservation land is likely to pose fewer prob-

lems than an acquisition of land which has no histori-

cal connection to a tribe’s land base. Current

regulations treat trust acquisitions of former reserva-

tion lands as an “on reservation” rather than an “off

reservation” transactions, see 25 C.F.R. § 151.2(f)

(defining reservation to include “that area of land

constituting the former reservation”), and subject

them to less searching scrutiny. For example, if a

tribe requests an off reservation acquisition — that is,

one involving land which is not nor ever has been

part of a reservation — the regulations require the

Secretary to consider “[t]he location of the land rela-

tive to state boundaries, and its distance from the

boundaries of the tribe’s reservation.” 25 C.F.R.

§ 151.11(b). If off reservation land is being acquired

for business purposes, “the tribe shall provide a plan

App. 111

which specifies the anticipated economic benefits.” /d.

§ 151.11(c). Such regulations are consistent with our

own analysis that restoration through the IRA of

territory historically part of the Yankton Sioux Reser-

vation is distinguishable from the acquisition of lands

never within Indian domain and may be accom-

plished without a proclamation.

Moreover, the defendants can cite no statutory

language or case law making an official proclamation

necessary before former reservation lands can reac-

quire their reservation status. The only case they

point to involved the establishment of a new reserva-

tion, not the return of former reservation land to an

existing one, and is thus inapposite. See Cutizens

Exposing Truth about Casinos v. Kempthorne, 492

F.3d 460 (D.C.Cir.2007).

The defendants also argue that treating trust

acquisitions of former reservation land differently

from other acquisitions would grant significance to

the 1858 boundaries despite the Supreme Court’s

determination in Yankton Sioux Tribe, and our own

conclusion in Gaffey //, that the original boundaries

have been altered by the reservation’s diminishment.

While it is true that the original 1858 boundaries are

no longer markers dividing jurisdiction between the

Tribe and the state, that does not mean to say they

have lost their historical relevance for the Secretary’s

discretionary acts. Defendants argue that the IRA’s

legislative history, the Department of the Interior’s

internal guidelines, and the Cohen handbook stand

for the proposition that some official action beyond

App. 112

the acquisition of land is necessary when adding trust

land to an existing reservation.

Here, the lands under consideration were part of

this tribe’s 1858 reservation and have been reac-

quired in trust “for the purpose of providing land for

Indians.” 25 U.S.C. § 465. We believe this presents a

distinct question, one which the sources cited by the

defendants simply do not resolve. There is a funda-

mental difference between acquiring land which has

no historical connection to an existing reservation

and reacquiring land which once formed part of a

Tribe’s land base. While Congress has provided that

an Official proclamation by the Secretary is necessary

for adding such unrelated land to a reservation, 1 has

not required it for the latter. The district court did not

err in its conclusion that all lands taken into trust hy

the Secretary under § 465 within the Jurisdiction of

the Yankton Sioux Reservation and qualify as Indian

country under § 1151(a).

C.

Although the district court identified 174.57

acres of miscellaneous land acquired in trust other

than under the IRA, it did not directly address the

status of these miscellaneous lands. Its separate

discussion of dependent Indian communities was

broad enough to cover cil trust properties, however,

including the miscellanecus plots.

In Venetie the Supreme Court noted that it had

not yet “had an occasion to interpret the term

The Tribe argues that even if the Sales Act did

undo an IRA imposed freeze, land conveyances 1n fee

to whites during the effective period of the freeze

were improper and should be disregarded for the

purpose of defining the reservation’s current bounda-

ries. The Tribe's arguments suffer from an insuffi-

cient factual record, however. As the district court

noted with respect to the Tribe's 1934 freeze claim,

“no proper foundation was established for the admis-

sion of ... evidence” indicating that any land would

have been affected by such a freeze. Gaffey I, 529

F.Supp.2d at 1051. We conclude that the Tribe's claim

that the reservation boundaries were frozen in 1934

is not ripe for resolution on the record before the

court

In the absence of any clear congressional intent

to divest allotted lands on the Yankton Sioux Reser-

vation of their reservation status, those lands re-

tained such status, and all outstanding allotments

continue to be reservation under § 115l(a). Further-

more, lands originally part of the Tribe’s 1858 reser-

vation regained their status as reservation land

under § 115l(a) when acquired in trust under the

Indian Reorganization Act. The miscellaneous trust

lands, by contrast, qualify as part of a dependent

Indian community and are therefore Indian country

under § 115l(b). Finally, the record regarding fee

lands continuously held bv tribal members is not ripe

3 ‘ t

for review.

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App. 123

November 13 and 14, 2007. For the reasons set forth

below, the Court finds the following categories of land

within the original 1858 treaty boundaries of the

Yankton Sioux Reservation remain part of the reser-

vation and are Indian country under 18 U.S.C.

§ 1151(a): (a) land reserved to the federal government

in the Act of Aug. 15, 1894, Ch. 290, 28 Stat. 286, 314-19,

and then returned to the Yankton Sioux Tribe; (b)

land allotted to individual Indians that remains held

in trust; (c) land taken into trust under the Indian

Reorganization Act of 1934, ch. 576, 48 Stat. 984

(1934) (codified as amended at 25 U.S.C. §§ 461-77),

and (d) Indian owned fee land that has continuously

been held in Indian hands.

Missour:t Waste Mgmt Dist, CIV 94-4217 (DS.D), and both

cases were remanded Although the Court has not dismissed

Southern Missouri Waste Management Dhistnct (“Southern

Missouri”) as a party to this htigation, it appears from the

record that Southern Missouri 1s no longer taking an active role

in this litigation Southern Missoun filed a Statement On Issues

Remaining After Remand, Doc 197, on June 28, 2004, and

counsel tor Southern Missouri, Kenneth Cotton, appeared at a

hearing held by the Court in this case on October 14, 2004, see

Doc 222. Thereafter, Southern Missoun has made no appear

ances by counsel and has filed nothing additional with the

Court. Mr. Cotton continues to receive notice of entry of the

Court’s Orders 1n this case from the Clerk of Court and he 1s still

listed as counsel of record for Southern Missouri on the Court’s

docket During the Court trial in this action in November 2007,

the Court observed Southern Miussouri’s counsel, Kenneth

Cotton, 1n the audience and he made no attempt to make an

appearance for Southern Missouri or object to the trial being

conducted without Southern Missoumn’s participation Southern

Missour1 1s bound by this decision

Sal

App. 124

I. BACKGROUND

It must be decided on remand what remains of

the Yankton Sioux Reservation following the Supreme

Court’s decision 1n South Dakota v. Yankton Sioux

Tribe, 522 U.S. 329, 358, 118 S.Ct. 789, 139 L.Ed.2d

773 (1998) (“Yankton Sioux Tribe”), holding that the

reservation had been diminished, and the Eighth

Circuit’s decision in Yankton Sioux Tribe v. Gaffey,

188 F.3d 1010, 1030 (8th Cir.1999) (“Gaffey II”). The

Supreme Court held that the Yankton Sioux Reserva-

tion was diminished by the land ceded to the United

States by the Yankton Sioux Tribe at the end of the

nineteenth century. See Yankton Sioux Tribe, 522 U.S.

at 358, 118 S.Ct. 789. The issue of whether the Yank-

ton Sioux Reservation was disestablished, however,

was not addressed by the Supreme Court, and the

case was remanded for further proceedings. Jd. On

remand, this Court held that the Yankton Sioux

Reservation was not disestablished, that all nonceded

lands continued to be part of the reservation, and

that all nonceded lands were subject to federal crimi-

nal jurisdiction. See Yankton Sioux Tribe v. Gaffey, 14

F.Supp.2d 1135 (D.S.D.1998) (“Gaffey”). On appeal,

the Eighth Circuit affirmed this Court’s decision that

the Yankton Sioux Reservation was not disestab-

lished, but found that the reservation was “further

diminished by the loss of those lands originally allotted

to tribal members which have passed out of Indian

hands.” Gaffey II, 188 F.3d at 1030. Those lands are

no longer “part of the Yankton Sioux Reservation and

are no longer Indian country within the meaning of

App. 125

18 U.S.C. § 1151.” /d. In Gaffey I], the Eighth Circuit

made clear that it was faced with considering “the

undetermined current status of the 262,000 acres

originally allotted to tribal members, some of which

remain in trust, but the bulk of which have lost their

trust status and are owned in fee by non Indians.”

188 F.3d at 1017. Further, the Eighth Circuit ex-

plained that, “(t]he question here is one of jurisdic-

tion, that is to what extent the Tribe retains

jurisdiction over any nonceded land within the origi-

nal reservation boundaries.” /d. It should be recon-

firmed that this case involves jurisdiction issues and

does not affect title to real estate.

Regarding the boundary issue, the Kighth Circuit

held that, “the original exterior treaty boundanies of

the reservation have not been maintained.” Gaffey 1/,

188 F.3d at 1030. The Eighth Circuit found that,

“Itlhe text of the 1894 Act and evidence regarding the

parties’ contemporaneous understanding of it estab-

lish that the reservation was maintained, but do not

define its precise boundaries. When viewed in its full

historical context, however, it is clear that the parties

did not intend for the tribe to retain control over

allotted lands which passed out of trust status and

into non Indian hands.” Gaffey IJ, 188 F.3d at 1030.

Addressing land now owned in fee by individual

Indians, the Eighth Circuit assumed that such land

“Ss not under tribal jurisdiction unless it is found to

be ‘within the limits of [the] Indian reservation.” Jd.

(quoting 18 U.S.C. § 1151(a)). Based upon the record

before the Eighth Circuit, however, it was unable to

App. 126

define the precise boundaries of what remains of the

Yankton Sioux Reservation. /d. Accordingly, on

remand the Court is required to develop a further

record and determine what the boundaries are of the

Yankton Sioux Reservation. Contrary to the position

of the Tribe, no one line can circumscribe what

remains of the Yankton Sioux Reservation. Also,

contrary to the position of the Defendants, the Yank-

ton Sioux Reservation does exist.

Prior to the trial, the Court in 2006 set forth ina

Memorandum Opinion and Order the issues that

would be considered on remand. (Memorandum

Opinion and Order, Doc. 223.) In that decision, the

Court determined the following issues are to be

decided in this remand proceeding: (1) Whether the

boundaries of the Yankton Sioux Reservation were

frozen by the enactment of 25 U.S.C. § 398d, which

the Tribe refers to as “the 1927 Act”; (2) If the bound-

aries of the Yankton Sioux Reservation were not

frozen by the 1927 Act, were the boundaries frozen by

the Indian Reorganization Act, Ch. 576, 48 Stat. 984

(1934) (codified as amended at 25 U.S.C. §$§ 461-77),

referred to as “the 1934 Act”, such that all lands

alienated to non-Indians after 1934 and prior to the

1948 Supervised Sales Act, 25 U.S.C. § 483, are

within the boundaries of the Yankton Sioux Reserva-

tion; (3) What lands are currently trust lands; (4) Are

the trust lands “Indian country” under 18 U.S.C.

App. 134

the Tribe by Act of February 13, 1929, 45 Stat. 1167;

and, those lands taken into trust for the Tnbe under

the Indian Reorganization Act, 25 U.S.C. § 461 ef seq.

These lands, according to the United States, are

Indian country under 18 U.S.C. § 1151l(a), as they are

“within the limits of any Indian reservation under the

jurisdiction of the United States Government... .” As

to the Indian owned fee land, the United States does

not take a position on whether such land is included

in the Yankton Sioux Reservation, leaving that issue

for the Tribe to pursue. The United States also does

not take a position on the 1927 Act and 1934 Act

claims advanced by the Tribe.

As to the lands taken into trust for the Tribe

under the 1934 Act, the United States argues that

although the 1858 original exterior boundaries no

longer serve to separate Indian country from areas

under State jurisdiction, when the property is reac-

quired in trust within those boundaries, it becomes

reservation and Indian country pursuant to 18 U.S.C.

§ 1151(a).

Addressing one of the Defendants’ arguments,

the United States contends its conclusion that tribal

trust land is reservation is not inconsistent with the

Secretary of the Interior’s separate authority under

25 U.S.C. § 467 to add lands to existing reservations.

Contrary to the Defendants’ claim, the United States

contends the plain reading of § 467 is that there is no

requirement for proclamation in order to add lands to

an existing Indian reservation. The United States

correctly distinguishes the case cited by the

App. 135

Defendants, Citizens Exposing Truth About Casinos v.

Kempthorne, 492 F.3d 460 (D.C.Cir.2007) (“Citizens”),

from the present case because Citizens involved the

creation of a new reservation that would require a

proclamation under 25 U.S.C. § 467. Further, Citizens

involved the creation of a new reservation that would

qualify for gaming as an “initial reservation” under

the Indian Gaming Regulatory Act, 25 U.S.C. § 2701

et seg., Which is not involved in the present case.

A second case the United States distinguishes is

South Dakota v. United States Dept. of Interior, 487

F.3d 548 (8th Cir.2007). In South Dakota, the Flan-

dreau Santee Sioux Tribe sought to place land in

trust that was never within its reservation bounda-

ries and the Eighth Circuit left unanswered the

question of whether “all land taken into trust off

reservation ... constitutes Indian country.” Jd. at 553

(emphasis added). Accordingly, the South Dakota case

did not involve the present question of whether land

taken into trust within the original exterior bounda-

ries of an Indian reservation that has not been dises-

tablished is Indian country under 18 U.S.C. § 1151(a).

In addition to the above positions, the United

States contends the lands acquired in trust under the

1934 Act can constitute an informal or de facto reser-

vation under 18 U.S.C. § 1151(a).

Another category of lands at issue is the reserve

lands. which were lands reserved for the Tribe for

agency, schools, and other purposes and reserved

from sale to settlers. The United States’ position

App. 137

The inescapable result of the prior court deci-

sions interpreting Congressional acts affecting the

Yankton Sioux Reservation is that it is a checker-

board reservation. The Eighth Circuit clearly envi-

sioned a checkerboard reservation pursuant to its

dual holdings that the 1858 reservation boundaries

are no longer in effect and that, “the land reserved to

the federal government in the 1894 Act and then

returned to the Tribe continues to be a reservation

under § 1151l(a)....” Gaffey Il, 188 F.3d at 1030. The

land reserved to the federal government and returned

to the Tribe was identified as one category of trust

land on the Yankton Sioux Reservation and it consists

of scattered lands throughout the original 1858

reservation. The Eighth Circuit made clear that these

scattered lands continue to be Indian country under

18 U.S.C. § 1151(a). As with the reserve lands, the

two additional categories of trust lands identified by

the Eighth Circuit consist of scattered lands within

the original 1858 boundaries. See id. Although the

Eighth Circuit was able to identify the categories of

trust land existing on the Yankton Sioux Reservation,

the record had not been developed as to which tracts

of land fall within those categories. Accordingly, on

remand the parties were directed to develop the

record as to which tracts of land on the Yankton Sioux

Reservation are in the three categories of trust land

identified by the Eighth Circuit. The trial record does

now contain that information

The Court will first address the Tribe’s claims

that the 1927 and 1934 Acts froze the boundaries of

App. 138

the Yankton Sioux Reservation. Next, the Court will

discuss whether trust lands are reservation land and

whether the land qualifies as Indian country under

18 U.S.C. § 1151(a) or (c). United States’ claim that

the Yankton Sioux Reservation is a de facto or infor

mal reservation will then be discussed. The final!

categories of land that will be addressed is Indian-

owned fee land continuously held in Indian hands.

Finally, the Court will discuss dependent Indian

communities.

A. 1927 Act Claim

The Tribe contends Congress froze the reserva

tion boundaries when it enacted 25 U.S.C. § 398d,

referred to above as “the 1927 Act”, such that all

lands sold to non-Indians after 1927 and before the

Supervised Sales Act of 1948, 62 Stat. 236, codified at

25 U.S.C. § 483, are within the reservation bounda-

ries. The 1927 Act provides as follows; Ҥ 398d.

Changes in boundaries of Executive order

reservations. Changes in the boundaries of reserva

tions created by Executive order, proclamation, or

otherwise for the use and occupation of Indians shall

not be made except by Act of Congress.” 25 U.S.C

$ 398d

Defendants’ first argument is that the Tmb

waived this claim by failing to raise it earlier in the

litigation. In a Memorandum Opinion and Order, Doc

223. the Court held the issue of the 1927 Act would be

decided in these remand proceedings. The snecific

App. 139

reasons for rejecting Defendants’ waiver arguments

as to both the 1927 Act claim and the 1934 Act claim

were explained by the Court in its Response to De-

fendants’ Petitions for Writ of Mandamus, filed with

the Eighth Circuit in April 2007:

Regarding the 1934 Act argument advanced

by the Tribe on remand and referred to in the

Court’s Memorandum Opinion and Order

dated December 13, 2006, the Eighth Circuit

clearly contemplated argument and devel-

opment of the record on remand of “land taken

into trust under the Indian Reorganization

Act of 1934.” Gaffey II, 188 F.3d at 1030.

Thus, the Eighth Circuit clearly contemplat-

ed the Court would consider arguments con-

cerning the 1934 Act on remand. The Eighth

Circuit recognized there will be additional

issues on remand that were not decided in

prior proceedings due to the limited devel-

opment of the record on issues other than

disestablishment or maintenance of the 1858

boundaries. Jd. at 1030-31. The Court finds

the Tribe’s arguments regarding the 1927

Act, at least at this point in the proceedings,

are similar in nature to the arguments re-

garding the 1934 Act. If the Eighth Circuit

believed that all arguments not previously

raised by the Tribe were waived, there would

have been no reason to remand this case to

this Court for development of the record and

further proceedings consistent with its opin-

ion. The Eighth Circuit recognized the par-

ties “followed an all or nothing strategy (the

State arguing disestablishment and the

App. 140

Tribe claiming maintenance of the 1858

boundaries),” Gaffey IJ, 188 F.3d at 1030,

which resulted in an incomplete record.

Moreover, it would have been a waste of judi-

cial resources for the parties and the Court

to make the necessary findings and conclu-

sions regarding the 1927 Act and the 1934

Act. without a final ruling regarding dises-

tablishment or maintenance of the 1858

boundaries.

Petition for Writ of Mandamus, Nos. 07-1723, 07-

1779, In re: Michael Rounds, et al., (8th Cir. Mar. 22,

2007) (District Court’s Response to Defendants’

Petitions for Writ of Mandamus). Defendants’ waiver,

law of the case and mandate rule arguments are

rejected for the reasons quoted above.

Citing Sioux Tribe of Indians v. United States,

316 U.S. 317, 325, 62 S.Ct. 1095, 86 L.Ed. 1501 (1942)

and the 1927 Act’s legislative history’, the Defendants

* The Defendants argue if the 1927 Act were to apply to all

reservations, including treaty reservations, the language in the

statute specifying its application to executive order reservations

would have been unnecessary In support of this argument, the

Defendants quote comments from a House debate distinguishing

between treaty and executive order reservations

Now let us go just a little into the history of the differ-

ence between a treaty reservation and an Executive-

order reservation. A treaty reservation is one by which

the Indians are placed on certain areas of land under

an agreement with the Indians-land usually formerly

occupied and owned by these same Indians under

right of occupancy An Executive-order reservation

is that which is set aside for the tmnbe by Executive

(Continued on following page)

App. 14]

contend the 1927 Act applies only to reservation

created by Executive order or proclamation and not to

reservations created by treaty. There is no dispute

that the Yankton Sioux Reservation was created by

treaty, rather than by Executive order or proclama

tion. The Tribe cites no case law or legislative history

in support of its claim that the reservation bounda

ries were frozen as of 1927. Rather, the Tribe argues

the “language of that statute 1s eminently clear.”

(Plaintiffs Supplemental Brief, Doc. 367 at p. 2.)

The Court finds the language of 25 U.S.C. § 398d

unambiguously apphes to reservations created by

action of the Executive, whether it be by order, proc

lamation or otherwise, and does not apply to reserva

tions created by treaty, such as the Yankton Sioux

Reservation. See Sroux Tribe, 316 US. at 325 n. 6, 62

S.Ct. 1095 (distinguishing between executive order

reservations and treaty reservations and noting that

with the 1927 Act, Congress provided that, “any

future changes in the boundaries of executive order

reservations should be made by Congress alone.”)

Accordingly, the boundaries of the Yankton Sioux

Reservation were not frozen by the 1927 enactment of

25 U.S.C. § 398d

proclamation and this character of reservation ts also

usually composed of a portion of lands formerly occu

pied by such Indians

68 Cong. Rec 4571(1927)

App. 142

B. 1934 Act Claim

The second frozen boundaries claim advanced by

the Tribe is that the Indian Reorganization Act,

referred to above as “the 1934 Act”, froze the bounda

ries of the Yankton Sioux Reservation upon its en

actment. Section 2 of the 1934 Act provides that,

“tlhe existing periods of trust placed upon any Indian

lands and any restriction on alienation thereof are

extended and continued until otherwise directed by

Congress.” 25 U.S.C. § 462. In addition, the sale of

allotments was restricted in 1934 under 25 U.S.C

§ 464, which stated that, “lelxcept as provided in this

Act, no sale, devise, gift, exchange, or other transfer

of restricted Indian lands.... shall be made or ap

»

proved. ...

Defendants’ arguments of waiver, law of the case

and violation of the mandate as to the 1934 Act claim

are rejected for the same reasons explained above for

rejecting these arguments as to the 1927 Act claim.

It was clearly Congress’ intent in enacting the

1934 Act to halt the loss of land on the nation’s Indian

reservations as a result of the allotment policy. See

Chase v. McMasters, 578 F.2d 1011, 1016 (8th

Cir.1978) (explaining that the Indian Reorganization

Act of 1934 “reflected a new federal policy of halting

the loss of Indian lands which had occurred under

statutes that allotted tribal lands to individual Indi-

ans and disposed of ‘surplus’ land under settlement

laws.”). It naturally follows that one result of the

App. 143

1934 Act was to “freeze” the boundaries of the Yank

ton Sioux Reservation

Legislative history is quoted by the Defendants,

but legislative history is not persuasive if the statute

itself is clear on its face. See United States v. Maswat,

A19 F.3d 822, 824 (8th Cir.2005) (explaining that a

court’s “task in interpreting legislation ts to start

with the plain meaning of its words, and ‘only if the

statute is ambiguous do we look to the legislative

history to determine Congress's intent.’”). Sections

462 and 464 are clear. There was to be “no sale,

devise, gift, exchange, or other transfer of restricted

Indian lands... .” 25 U.S.C. § 464. Self-serving opin-

ions by various government officials that they could

still transfer Indian lands, despite the 1934 Act, are

contrary to law and provide no authority for such

transfers

The “freezing” of the boundanes of the Yankton

Sioux Reservation ended wn 1948 when Congress

enacted the Supervised Sales Act, 25 U.S.C. § 483",

Section 483 provides as follows

The Secretary of the Interior, or his duly authorized

representative, is authorized in his discretion and up

on apphcation of the Indian owners, to issue patents

in fee, to remove restrictions against alienation, and

to approve conveyances, with respect to lands or in

terests in lands held by individual Indians under the

provision of the Act of June 18, 1934 (48 Stat 984) [25

USC § 461 et seq |, or the Act of June 26, 1936 (49

Stat 1967) [25 USC § 501 et seq

which lifted restrictions of the 1934 Act and allowed

the Secretary of the Interior to grant patents in fee to

Indian owners upon application. As explained below

in the discussion of the Indian country status of trust

lands, the Court finds that land placed into trust for

the Yankton Sioux Tribe and its members under the

1934 Act is Indian country under § 1151(a). Rather

than continuing to freeze the boundaries, the Court

finds the boundaries of the Yankton Sioux Reserva

tion change when land is taken into trust under the

1934 Act. Accordingly, the Court accepts that portion

of the ‘Tmbe'’s claim that the 19384 Act froze the

boundaries of the Yankton Sioux Reservation at the

time of its enactment, but rejects the Tribe's claim

that the freeze continued through the present time

The “freeze” ended in 1948, thereby nullifying the

present and ultimate effect of a “freeze” from 1934 to

1948. See Oglala Stoux Tribe of the Pine Ridge Indian

Reservation v. Hallett, 708 F.2d 326, 330-31 (Sth

Cir. 1983) (“Assuming that Section 4 of the Indian

Reorganization Act did limit the Secretary's authority

to issue fee patents to individual allottees, Congress

lifted that limitation in 1948, as to trust lands

‘held. . under’ the [Indian Reorganization Act of

1934, by passing 25 U.S.C. § 483 (1976).") (footnote

omitted)

Likewise, the Supervised Sales Act of 1948 cured

those real estate transfers. The “freeze” was as to

land transfers and not as to any one boundary, be

cause even in 1934 to 1948 there was no one, single

reservation boundary. The various boundanies that

App. 145

were frozen during that time period were various

tracts of Indian land held by the United States. At

trial, the Tribe claimed there were tracts of land

affected by this 1934 freezing claim, but no proper

foundation was established for the admission of such

evidence so this 1934 freezing analysis might be a

moot issue. In addition, there is nothing in the record

to indicate that any land was subject to the Sioux

exception as stated in 25 U.S.C. § 474 (Section 14 of

the 1934 Act). Even if it is not a moot issue, any

resulting title defects were cured by the Supervised

Sales Act of 1948.

Finally, it is not clear whether or not the Tribe

properly excluded itself from the operation of the

1934 Act. It takes affirmative steps for such exclusion

and the record does not show full compliance with the

requirements for exclusion from the 1934 Act, so no

exclusion is found even though it was apparently

attempted. See 25 U.S.C. § 4

é

5.

C. Status of Trust Lands on Yankton Sioux

Reservation

The Eighth Circuit remanded this case for the

Court to make “any necessary findings relative to the

status of Indian lands which are held in trust,” be-

cause “[tlhe current amount of Indian trust land on

the Yankton Sioux Reservation [was] unclear from

the record [before the Eighth Circuit!.” Gaffey 17, 188

F.3d at 1030. During the Court trial in this action, the

parties identified the tracts of land on the Yankton

Sioux Reservation that are within the three catego

ries of trust land identified by the Eighth Circuit

“1) the land reserved to the federal government in the

1894 Act and later returned to the Yankton Tribe,

2) land allotted to individual Indians that remains

held in trust, and 3) land taken into trust under the

Indian Reorganization Act of 1934.” Id

Four spreadsheets, admitted at trial as Exhibits

202, 203, 204 and 211, list the current tracts of trust

land on the Yankton Sioux Reservation. In addition to

the spreadsheets, there are sub-exhibits, which

provide documentation relating to each of the tracts

of land hsted on the spreadsheets. During the trial,

the parties agreed that some of the tracts were listed

in the wrong category on the spreadsheets. Accordingly,

after the trial the United States submitted a Motion

clarifying the stipulations entered into at trial by the

parties regarding certain tracts of land and attached

revised spreadsheet Exhibits and explaining which

tracts were to be moved to different categories. The

Court entered an Order granting this unopposed

motion. (Doc. 423.) In the revised spreadsheet exhib-

its submitted after the Court trial, Exhibit 202 lists

the tracts of trust land on the Yankton Sioux Reser-

vation that were taken into trust by the United

States after the 1934 Act, totaling 6,444.47 acres

Revised Exhibit 203 lists the tracts of trust land on

the Yankton Sioux Reservation that were pre-1934 fee

to trust or non-reserve Secretarial order trust lands,

totaling 174.57 acres. Exhibit 204 lists the tracts of

land on the Yankton Sioux Reservation that were

App. 147

allotted trust lands and are now tribal trust lands,

totaling 4.496.58 acres. Exhibit 211 lists the tracts of

land on the Yankton Sioux Reservation that are

allotted trust lands, totaling 25,555.08 acres.

The Eighth Circuit recognized in Gaffey J] that

before the modern definition of Indian country, set

forth in 18 U.S.C. § 1151, was established in 1948,

“Indian lands were defined to include ‘only those

lands in which the Indians held some form of property

interest: trust lands; individual allotments, and, to a

more limited degree, opened lands that had not yet

been claimed by non-Indians. ” Gaffey IJ, 188 F.3d at

1022. Thus, determining Congressional intent before

1948 as to “reservation” status under § 115l1(a) “is

complicated by the fact that modern distinctions

between different categories of Indian country were

not recognized by ... legislators who had a different

understanding of the requirements for land to be

classified as reservation land and/or Indian country.”

Id. at 1021. “The notion of a reservation as a piece of

land, all of which is Indian country regardless of who

owns it, would have thus been quite foreign.” 7d. at

1022.

1. Reserve lands

Defendants’ argument that none of the categories

of land defined by the Courts or the parties constitute

“reservation” under 18 U.S.C. §115l(a), is a veiled

attempt to discredit the result of the Eighth Circuit's

decision in Gaffey IJ, which is that the Yankton Sioux

Reservation 1s now a checkerboard reservation. The

Eighth Circuit clearly envisioned the Yankton Sioux

Reservation 1s a checkerboard reservation pursuant

to its dual holdings that the 1858 reservation bound

aries are no longer in effect and that, “the land re

served to the federal government in the 1894 Act and

then returned to the Tribe continues to be a reserva

tion under § 115l(a)....” Gaffey I], 188 F.3d at 1030

The first category of trust land, i.e., land reserved to

the federal government in the 1894 Act and later

returned to the Tribe, consists of scattered lands

throughout the original 1858 reservation. The Eighth

Circuit made clear that these scattered reserve lands

continue to be Indian country under § 1151(a), which

can only mean that there is a checkerboard reserva

tion. The other two categories of trust land described

by the Eighth Circuit likewise consist of scattered

land within the 1858 boundaries of the Yankton Sioux

R . “7 + .

reservallon

2. Land allotted to individual Indians

that remains held in trust

The Eighth Circuit declared that although the

Yankton Sioux Reservation has not been disestab

lished, “it has been further diminished by the loss of

those lands orginally allotted to tribal members

which have passed out of Indian hands.” Gaffey II,

188 F.3d at 1030. Accordingly, if originally allotted

land passed out of Indian hands at anv time after it

was allotted, it is not part of the Yankton Sioux

Reservation. Tral Exhibit 211 identifies the tracts of

land on the Yankton Sioux Reservation that

allotted trust lands. As to this category of lands, the

Defendants contend the law of the case pursuant t

Gaffey Il, is that allotted land can only be Indian

country under 18 U.S.C. § 1151{ ind cannot |

[Indian country under § 1151(a

Contrary to the Defendants’ argument:

United States contends allotted land that remain:

held in trust is reservation, and thus Indian country

under §$115l(a), as a result of the Eighth Circuit's

findings that the Yankton Sioux Reservation was not

disestablished and that the text of the 1894 Act

establishes the Congressional intent to “reserve land

to be used to care for continued tribal interests,’

Gaffey IT, 188 F.3d at 1028, in combination with the

overarching principle that “[a]fter land is set aside for

an Indian reservation, it retains that status until

Congress explicitly indicates otherwise,” Solem, 465

U.S. at 469, 104 S.Ct. 1161. Due to the sparsity of the

factual record, the Eighth Circuit was unable t

identify on the record before it which allotted land

remained held in trust by the United States. Se

Gaffey II, 188 F.3d at 1028, 1030. That information

was presented to the Court on remand in Trial Exhib

it 21]

The Court agrees with the United States’ ;

and further notes that there has been no finding by

the appellate courts that the Yankton Sioux Reserva

tion has been diminished by allotted land that re.

mains held in trust. The Court finds no evidence of

Congressional intent to so diminish the Yankton

App Lo0

Sioux Reservation. Accordingly, the land allotted to

individual Indians that remains held in trust is

reservation and is Indian country under 18 U.S.C

Y 1151(a)

3. Lands taken into trust under the

1934 Act

As to the lands taken into trust under the 1934

Act, the United States claims that although the 1858

original exterior boundaries no longer serve to sepa

rate Indian country from areas under State jurisdic-

tion, when the property is reacquired in trust within

those boundaries, it becomes reservation and Indian

country pursuant to 18 U.S.C. § 115l(a). Defendants,

however, contend a parcel of land taken into trust

under 25 U.S.C. § 465, part of the 1934 Act, cannot be

reservation land unless there is a proclamation under

25 U.S.C. § 467 that it 1s a new reservation or 1s

added to an existing reservation. Section 467 provides

that:

The Secretary of the Interior is hereby au-

thorized to proclaim new Indian reservations

yn lands acquired pursuant to any authority

conferred by this Act, or to add such lands to

existing reservations: Provided, That lands

added to existing reservations shall be des-

ignated for the exclusive use of Indians enti

tled by enrollment or by tribal membership

to residence at such reservations.

25 U.S.C. § 467

App. 151

Defendants’ interpretation of 25 U.S.C. § 467 is

strained. Contrary to Defendants’ argument, the

United States contends its conclusion that tribal trust

land is reservation is not inconsistent with the Secre-

tary of the Interior’s separate authority under 25

U.S.C. § 467 to add lands to existing reservations.

The United States argues the plain reading of § 467 is

that there is no requirement for proclamation in

order to add lands to an existing Indian reservation.

The United States argues the case cited by the

Defendants, Citizens, 492 F.3d at 460, is distinguish-

able from the present case because Citizens involved

the creation of a new reservation that would require a

proclamation under 25 U.S.C. § 467. Further, Citizens

involved the creation of a new reservation that would

qualify for gaming as an “initial reservation” under

the Indian Gaming Regulatory Act, 25 U.S.C. § 2701

et seq., which is not involved in the present case. The

Court agrees that Citizens is inapplicable to the case

before the Court for the reasons advanced by the

United States.

A second case the United States seeks to distin-

guish is South Dakota, 487 F.3d at 548, which was

cited by the Defendants. In South Dakota, the Flan-

dreau Santee Sioux Tribe sought to place land in

trust that was never within its reservation bounda-

ries and the Eighth Circuit left unanswered the

question of whether “all land taken into trust off

reservation ... constitutes Indian country.” Jd. at 553

(emphasis added). Accordingly, the Court agrees with

the United States that the South Dakota case did not

SN

App. 152

involve the question of whether land taken into trust

within the original exterior boundaries of an Indian

reservation that has not been disestablished is Indian

country under 18 U.S.C. § 1151(a).

The Court interprets 25 U.S.C. § 467 to require a

proclamation by the Secretary only in situations

where new Indian reservations are being created. As

observed by the United States, “i]t is redundant to

proclaim the land a reservation when it is acquired in

trust for the Tribe within a reservation that is not

disestablished.” (Doc. 346 at p. 8.) The acquisition of

land not previously within the boundaries of an

Indian reservation presents a different situation than

acquiring land in trust within the original boundaries

of a diminished reservation. The land acquisition

regulations under the 1934 Act treat acquisitions on a

diminished reservation as an on-reservation acquisi-

tion. See 25 C.F.R. § 151(f). The Court rejects Defen-

dants’ argument and holds that the absence of a

proclamation under 25 U.S.C. § 467 for land taken

into trust under the 1934 Act, 25 U.S.C § 465, which

is within the original boundaries of a diminished

reservation, does not prevent the land from being

reservation land. Given the Eighth Circuit’s holding

that the Yankton Sioux Reservation was not disestab-

lished, in combination with its holding that the

reserve lands continue to be reservation under

§ 1151(a), and the Court’s finding that a proclamation

under 25 U.S.C. § 467 was not required in this case,

the Court concludes all land within the onginal 1858

treaty boundaries of the Yankton Sioux Reservation

App. 153

held by the United States in trust pursuant to the

1934 Act constitutes reservation and [Indian country

under 18 U.S.C. § 1151(a).

D. Informal or De facto Reservation

An alternate position advanced by the United

States is that all of the land held by the United

States in trust for the Tribe and its individual mem-

bers is a “reservation” for purposes of federal criminal

jurisdiction under 18 U.S.C. § 115l1(a), even if it is

found to not be a formally designated reservation. See

Oklahoma Tax Comm’n v. Citizen Band of Potawato

mi Indian Tribe of Oklahoma, 498 U.S. 505, 511, 111

S.Ct. 905, 112 L.Ed.2d 1112 (1991). In Oklahoma Tax

Comm’n, the Supreme Court explained it has “stated

that the test for determining whether land is Indian

country does not turn upon whether that land is

denominated ‘trust land’ or ‘reservation.’ Rather, we

ask whether the area has been ‘validly set apart for

the use of the Indians as such, under the superin-

tendence of the Government.’” 498 U.S. at 511, 111

S.Ct. 905 (quoting United States v. John, 437 U.S

634, 648-49, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978)). In

United States v. John, 437 U.S. 634, 648-49, 98 S.Ct.

2541, 57 L.Ed.2d 489 (1978), the Supreme Court held

the federal government had authority to prosecute an

Indian, under 18 U.S.C. §§ 1153 and 1151(a), for a

crime committed on land held in trust by the United

States for the benefit of the Mississippi Choctaw

Indians, who were under federal supervision. In that

case, the land at issue was later proclaimed to be a

App. 154

reservation, but the Supreme Court held that prior to

the proclamation there was “no apparent reason why

these lands, which had been purchased in previous

years for the aid of [the Mississippi Choctaw] Indians

land held in trust by the Federal Government for

their benefit], did not become a ‘reservation,’ at least

for the purposes of federal criminal jurisdiction at

that particular time.” Jd. (citing United States 1

Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 54 L.Ed. 195

(1909)).

In a case considering whether certain land was

“Indian country” under 18 U.S.C. § 1151(a), the

Kighth Circuit explained, “[i]t is well established that

the actions of the federal government in its treatment

of Indian land can create a de facto reservation, even

though the reservation was not created by a specific

treaty, statute or executive order.” United States v

Azure, 801 F.2d 336, 338 (8th Cir.1986). In an effort to

avoid this holding in Azure, Defendants cite Stands,

105 F.3d at 1572, for the proposition that placing land

into trust for an Indian tribe does not make it Indian

country under 18 U.S.C. § 1151. In Stands, the

Eighth Circuit stated, “|flor jurisdictional purposes,

tribal trust land beyond the boundaries of a reserva

tion 1s ordinarily not Indian country.” /d. at 1572. But

Stands does not control the result in this case. Stands

considered federal jurisdiction, under 18 U.S.C

§ 1151(c), on land that was outside the clearly defined

boundaries of a reservation. See id. Rather than

considering jurisdiction under § 11L51(c) over allotted

land that is outside the clear boundaries of a

App. 156

the Kighth Circuit’s earlier holding in Azure, 801 I°.2d

at 338, applies to the land at issue in the present

case.

As to all of the trust land identified in Revised

Exhibits 202, 203, 204 and 211, the federal govern-

ment has validly set apart that land for use of the

Yankton Sioux Indians. Donalene Orozo, the Realty

Officer in the Bureau of Indian Affair’s (“BIA”) Yank-

ton Agency in Wagner, testified that her office main-

tains all leases on trust Jands on the Yankton Sioux

Reservation. The BIA negotiates the leases, collects

the rents and distributes the rents according to tribal

status reports. Federal Bureau of Investigation Agent

Matthew Miller testified that the FBI exercise crimi-

nal jurisdiction over all trust land on the Yankton

Sioux Reservation, and does not distinguish between

land taken into trust under the 1984 Act, reserve

land, or allotted land held in trust. Agent Miller relies

upon the BIA Realty Office to advise him whether

any particular tract of land is held in trust by the

United States. The above-referenced testimony

establishes that the federal government provides

supervision over all trust lands on the Yankton Sioux

Reservation. Based upon the exhibits received during

the trial and the testimony of Ms. Orozo and FBI

Agent Matthew Miller, the Court concludes the

federal government has validly set apart the tracts of

land identified in Revised Exhibits 202, 203, 204 and

211 for use of the Yankton Sioux Indians. Accordingly,

the trust lands identified in Revised Exhibits 202,

App. 157

203, 204 and 211 constitute a reservation, at least for

purposes of jurisdiction under 18 U.S.C. § 115 1(a)

EK. Indian-owned fee land continuously

held in Indian hands

The Eighth Circuit held that the Yankton Sioux

Reservation “has been further diminished by the loss

of those lands originally allotted tribal members

which have passed out of Indian hands.” Gaffey IT,

188 F.3d at 1030. As to Indian-owned fee lands, the

Kighth Circuit assumed “that land now owned in fee

by individual Indians is not under tribal jurisdiction

unless it is found to be ‘within the lhmits of [the]

Indian reservation.” 18 U.S.C. § 1151(a).” Jd. The

Kighth Circuit’s diminishment finding is limited to

previously allotted lands which have passed out of

Indian hands. Id. (emphasis added). There has been

no finding by an appellate court and this Court finds

no evidence on this record that Congress intended to

diminish the Yankton Sioux Reservation by previously

allotted land now owned in fee which has never

passed out of Indian hands. The principle that “[a]fter

land is set aside for an Indian reservation, it retains

that status until Congress explicitly indicates other-

wise,” Gaffey Il, 188 F.3d at 1021 (citing Solem, 465

U.S. at 470, 104 S.Ct. 1161), applies to these lands

Above, the Court found that trust lands are reserva

tion under 18 U.S.C. § 1151(a), and the Court finds no

reason to treat any differently Indian-owned fee land

on the Yankton Sioux Reservation. which has been

continuously held in Indian hands. Accordingly, the

A —

»

>

~—

under §$ 115l(a), the Court finds such trust land

would nevertheless qualify as Indian country under

$ 1151(b), as a dependent Indian community. The

Supreme Court established two requirements for off-

reservation land to qualify as a dependent Indian

community under § 1151(b): “a federal set-aside and a

federal superintendence requirement.” Alaska

Native Village of Venetie Tribal Government, 522 U.S

020, 530, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998). It was

established at trial that all of the trust land identified

in Revised Exhibits 202, 203, 204 and 211 (revised

post-trial) has been set aside by the federal govern-

ment in trust for the Indians residing within the

original 1858 boundaries of the Yankton Sioux Reser-

vation. The federal government exercises superin-

tendence over these trust lands, as testified to by Ms.

Orozo and FBI Agent Miller. Accordingly, these trust

lands meet the two requirements for a dependent

Indian community. Similar to the result of finding the

trust lands are “reservation” under §115l(a), as

described in this opinion, a finding that the trust

lands qualify as Indian country under § 1151(b)

results in the Yankton Sioux Reservation being a

checkerboard reservation

lil, CONCLUSION

Based upon the discussion above, the Court finds

all the trust land and Indian-owned fee land that has

continuously been held in Indian hands, which is

within the original 1858 treaty boundaries of the

Yankton Sioux Reservation, is Indian country under

App. 161

18 U.S.C. § 1151(a). If any of the trust land is found

by a superior court to not be “reservation” land, and

thus not Indian country under 18 U.S.C. § 1151(a),

such trust land qualifies as Indian country under 18

U.S.C. § 1151(b), as a dependent Indian community.

Although it would be preferable for law enforcement

and administrative purposes to have one line sur-

rounding a wholly contiguous reservation, it appears

from Charles Mix County State’s Attorney Scott

Podhradsky’s testimony at tral that the federal,

state, county and city law enforcement officers work-

ing on the Yankton Sioux Reservation have estab-

lished a workable system regarding the exercise of

criminal jurisdiction. Even if the Yankton Sioux

Reservation as now diminished presented law en-

forcement problems, those problems would have to be

countenanced for the Reservation as diminished 1s

what varying federal Indian policies have created.

Thus, while the checkerboard reservation is not the

ideal result from the various points of view of any of

the parties, the exercise of checkerboard federal

criminal jursdiction on the Yankton Sioux Reservation

is a workable law enforcement environment. The busy

criminal docket before this Court from the Yankton

Sioux Reservation confirms that observation. Aside

from those observations, the Indians are entitled by

law to their reservation, diminished as it is. Accordingly,

IT IS ORDERED:

1. That a Declaratory Judgment will be en-

tered in favor of the Plaintiffs and Plaintiff-

Intervenor declaring that the following

App. 162

categories of land within the original 1858

treaty boundaries of the Yankton Sioux Res

ervation remain part of the reservation and

are Indian country under 18 U.S.C

§ 1151(a):

a) land reserved to the federal govern-

ment in the Act of Aug. 15, 1894, Ch

290, 28 Stat. 286, 314-19, and then re

turned to the Yankton Sioux Tribe;

b) land allotted to individual Indian:

that remains held in trust:

c) land taken into trust under the Indian

Reorganization Act of 1934, ch. 576, 48

Stat. 984 (1934) (codified as amended at

25 U.S.C. §$§ 461-77); and

d Indian owned fee land that has cor

tinuously been held in Indian hands

2. That, other than the declaratory relief

granted in paragraph 1 above, all of Plain-

tiffs’, Plaintiff-Intervenor’s and Defendants

claims asserted in this action as to the

boundaries of the Yankton Sioux Reservation

are denied

JUDGMENT

}

In accordance with the Memorandum Opini

and Order filed this date with the Clerk,

IT IS ORDERED, ADJUDGED AND DECREED

that Judgment is entered in favor of the Plaintiffs

and the Plaintiff-Intervenor to the extent that the

Court declares the following categories of land within

the original 1858 treaty boundaries of the Yankton

Sioux Reservation remain part of the reservation and

are Indian country under 18 U.S.C. § 1151(a):

a) land reserved to the federal government

in the Act of Aug. 15, 1894, Ch. 290, 28 Stat.

286, 314-19, and then returned to the Yank-

ton Sioux Tribe;

b) land allotted to individual Indians that

remains held in trust:

c) land taken into trust under the Indian

Reorganization Act of 1934, ch. 576, 48 Stat.

984 (1934) (codified as amended at 25 U.S.C

S§ 461-77): and

d) Indian owned fee land that has continu

ously been held 1n Indian hands.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that, with the exception of the declaratory

rehef granted immediately above, all of Plaintiffs’,

Plaintiff-Intervenor’s and Defendants’ claims asserted

in this action as to the boundaries of the Yankton

Sioux Reservation are denied.

App. 164

599 N.W.2d 364

Supreme Court of South Dakota.

James BRUGUIER, Petitioner and Appellant,

v.

Joseph CLASS, Warden, South Dakota

State Penitentiary, Appellee.

No. 20216.

Argued Jan. 13, 1999.

Decided Sept. 1, 1999.

Rehearing Denied Oct. 7, 1999.

John M. Wilka of Wilka, Haugen & Kirby, P.C., Sioux

Falls, for petitioner and appellant.

Mark Barnett, Attorney General, John P. Guhin,

Deputy Attorney General, Pierre, for appellee.

KONENKAMYP, Justice.

(7 1.] In this appeal, we must again decide the

status of certain lands lying within the 1858 bounda-

ries of the Yankton Sioux Reservation. By habeas

corpus petition, James Bruguier challenges state

jurisdiction in Pickstown, the place of his criminal

offense. The United States Supreme Court in South

Dakota v. Yankton Stoux Tribe, 522 U.S. 329, 118

S.Ct. 789, 139 L.Ed.2d 773 (1998) [Yankton Sioux

Tribe |, held that unallotted lands ceded to the United

States were subject to state jurisdiction. Here we

must decide the status of allotted lands, which have

passed into non-Indian ownership. We conclude that

this territory is not Indian country as defined by

federal law, and therefore South Dakota properly

App. 165

maintains jurisdiction. We affirm the decision deny-

ing Bruguier’s habeas petition.

A

[7 2.) A jury found James Bruguier guilty of

first degree burglary on August 21, 1992. He later

pleaded guilty to being a habitual offender. On ap

peal, we affirmed. State v. Bruguier, 510 N.W.2d 126

(S.D.1993). He committed the burglary in Pickstown,

South Dakota, which lies within the original 1858

boundaries of the Yankton Sioux Indian Reservation.

His first petition for writ of habeas corpus was de

nied, but based on the U.S. District Court’s decision

in Yankton Sioux Tribe v. Southern Missouri Waste

Management District, 890 F.Supp. 878 (D.S.D.1995),

concluding that the 1858 Reservation remained

intact, Bruguier filed a second petition. The circuit

court also denied that petition, based on our decision

in State v. Greger, 1997 SD 14, 559 N.W.2d 854. While

his appeal to this Court was pending, the United

States Supreme Court decided Yankton Sioux Tribe,

522 U.S. at 329, 118 S.Ct. at 789. We then remanded

his case for a decision on whether the burglary

occurred on land retaining reservation or Indian

country status under 18 USC § 1151.

(1 3.) The parties stipulated that the offense

occurred on allotted land to which Indian title had

been extinguished, but left to the habeas judge to

decide whether the land remained Indian country

under federal law. The court found that the place

App. 166

where the offense was committed lies on formerly

allotted land, “the Indian title to which has been long

extinguished [and] is now held in fee title by non-

Indians.” Also, the court concluded the reservation

had been disestablished and that no lands within the

former 1858 boundaries now constitute a reservation

under 18 USC § 1151; therefore, the offense did not

occur in Indian country and state jurisdiction was

proper. Bruguier’s petition for writ of habeas corpus

was denied. On the same day the circuit court signed

its findings, the U.S. District Court ruled that the

1858 boundaries remain intact, thus by inference

making Pickstown Indian country. Yankton Sioux

Tribe v. Gaffey, 14 FSupp.2d 1135 (D.8.D.1998)

|Gaffey |. Bruguier now appeals.’ Jurisdiction may be

properly challenged through a habeas petition. Flute

vu. Class, 1997 SD 10, 4 8, 559 N.W.2d 554, 556 (citing

Wetker v. Solem, 515 N.W.2d 827, 830 (S.D.1994)).

B

{4 4.) The legal history of the Yankton Sioux

Reservation is described in Yankton Stoux Tribe, 522

U.S. at 329, 118 S.Ct. at 789, and Greger, 1997 SD 14,

‘ See the shaded Pickstown map in the Gaffey Joint Appen-

dix, Volume V, at 1379, Briefs from Yankton Sioux Tribe, et al v

Gaffey, et al (8thCir 1999)

* In this instance, our review of the circuit court’s decision

is de novo as we are deciding “whether the established facts fall

within the relevant legal definition ” Falls v Nesbitt, 966 F 2d

375, 377 (8thCir.1992).

App. 167

559 N.W.2d at 854. We address only those particulars

bearing on the present question. The Yankton Sioux

Indian Reservation was created by the 1858 Yankton

Treaty of Cession. Greger, 1997 SD 14, 43, 559

N.W.2d at 857. With the passage of the General

Allotment (Dawes) Act in 1887, the Yankton Reserva-

tion was to be partitioned with parcels to be assigned

to individual tribal members.” In 1892, the Tribe and

the United States negotiated a second treaty, which

Congress ratified in 1894. Id. J 1, 4. By this agree-

ment, for a “sum certain,” the Tribe “ceded, sold,

relinquished and conveyed” all its unallotted reserva

tion lands to the United States. /d. ¥ 1.

(4 5.] After President Cleveland’s proclamation

opened the unallotted lands for settlement in 1895,

the area filled with settlers. The history is recounted

in the writings of author and journalist, Adeline 5S.

Gnirk.* In her retelling, the Chicago, Milwaukee & St.

Paul Railroad secured a right-of-way in 1897 to

extend its line through the opened reservation from

Napa to the place where the town of Platte was later

* Professor Herbert Hoover points out that certain lots were

earlier assigned or distributed to Yankton “families” In 1869,

177 80-acre lots were surveyed and in 1874, additional 40-acre

lots were surveyed The General Allotment Act invalidated all

the “family” assignments and provided for “individual” allot-

ments Herbert Hoover, A Yankton Sioux Tribal Land History 5

(1995)

“A Gnuirk, The Epic of the Realm of Ree (1984), A Gnuirk,

The Epic of the Great Exodus (1985); A) Gnirk, The Epic of

Papineau’s Domain (1986)

App. 168

founded. The railbed was completed in 1900. Within a

year four townsites originated along the railway:

Wagner, Lake Andes, Geddes and Platte. Dante and

Ravinia were soon added as railroad stops. The region

was transformed. Typical perhaps is the rise of Lake

Andes, which was platted in 1901 and formally

established as a town in 1904.

When inherited Indian lands commenced to be

sold, a location was secured on Section 4, the present

site. This land including the 80 acres then platted

and the 120 acres adjoining had been allotted to John

Arthur, or Sparrow Hawk. He died and in 1904 his

only heirs, his wife Taniyawakanwin, and daughter

Bessie Zitka Koyewin were induced to sell 80 acres of

this land to the Lake Andes 'Townsite Company.

at 143,

cited in Gaffey Joint Appendix, at 765. Even during

Gnirk, Papineau’s Domain, supra note 4,

the twenty-five year trust period required by the

Dawes Act, Article XI of the 1894 Act allowed for the

sale of allotted lands on the death of certain allottees.

By 1916, Lake Andes won a decade-long battle with

the other railroad towns to become the county seat,

replacing Wheeler. Construction on the new court

house began in 1917. The town remains the county

seat to this day. Its courthouse and law enforcement

center both sit on formerly allotted land.

(1 6.] For the Yanktons, too, life changed dra

matically.

Immediately after initial allotment proceed

ings ended in 1894, agency officials divided

App. 169

the reservation into two farm jurisdictions to

hasten the adjustment of adults.... [They

were taught] techniques of using horse-

drawn machinery, selective livestock breed-

ing, dry farming on arid land, and maintain-

ing agricultural equipment.

Herbert T. Hoover & Leonard R. Bruguier, The Yank

ton Sioux 46 (1988). Tribal government quickly faded

and became nonexistent. Indeed, the agency Superin-

tendent in 1903 “declared that tribal government by

chiefs was a thing of the past.” Jd. at 53. Even the

tribal business committee disappeared, until revived

years later. Jd. The Court of Indian Offenses, which

dealt with crimes by Indians against Indians on

allotted land, was abolished in 1909. As the habeas

court found, “lolf the approximately 260,000 acres

originally allotted to Indians, by 1913, just twenty-

one years later, the tribal members held only 70,000

acres.... They had thus divested themselves of over

190,000 acres. By 1930, tribal members owned only

43,358 acres.” The federally supported agency board-

ing school closed in 1919 and its students transferred

to county public schools. Yanktons were added to the

county jury list and several were elected or appointed

to county and local offices, including clerk of courts,

constable, election judge and clerk.

[{ 7.) The present character of the area reflects

the turn of the century changes that followed the

reservation opening. From the 262,000 acres originally

allotted, only about fifteen percent remain in Indian

hands. “Today, the total !mdian holdings in the region

. t

App. 170

consist of approximately 30,000 acres of allotted land

and 6,000 acres of tribal land.” Yankton Stoux Tribe,

522 U.S. at 339, 118 S.Ct. at 796 (citing Indian Res-

ervations: A State and Federal Handbook 260 (1986)).

>

(7 8.] Bruguier committed burglary at a home

in the state-chartered municipality of Pickstown.

Although a substantial portion of the site on which

Pickstown rests is former allotment land, none of it is

now held by the Tribe or in trust. Pickstown has its

own unique origin. Named for General Lewis A. Pick

of the Corps of Engineers, the town was established

in 1946. The U.S. Army Corps of Engineers created it

as part of the Fort Randall Dam project to accommo-

date workers and their families. See generally Flood

Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887

(1944) (codified as amended at 16 USC §& 460d

(1976)).” To permit building hydroelectric and flood

control dams on the Missouri River, supporting

enactments authorized the taking of portions of

certain Indian reservations, including the nearby

Crow Creek Sioux and Lower Brule Reservations.” In

Also known as the Pick-Sloan Mussouri River Basin

program

6

See Act of October 3, 1962, Payment for Lands of Crow

Creek Sioux Reservation, Pub. L. No. 87-735, 76 Stat. 704: Act of

October 3, 1962, Payment for Lands of Lower Brule Sioux

Reservation, Pub L. No 87-734, 76 Stat 698; Act of September

2, 1958, Payment for Lands to Lower Brule Sioux Tribe, Pub L

No. 85-923, 72 Stat. 1773; Act of September 2, 1958, Payment for

(Continued on following page)

App. 17]

those enactments the text mentions taking “reserva-

tion” land. In contrast, the body of the eminent do-

main statute dealing with the Yankton Sioux refers to

taking only “tribal and allotted lands,” but the title in

the original enactment (Pub. L. No. 83-478) does refer

to the Yankton Sioux Reservation. See 43 USC

§ 1200e (68 Stat. 453 (1954)) (authorizing expendi-

ture to relocate tribal members “who reside or have

resided, on tribal and allotted lands acquired by the

United States for the Fort Randall Dam and Reser-

voir project”). This latter law also provided that “title

to any lands acquired within Indian country pursuant

to this section shall be taken in the name of the

United States in trust for the Yankton Sioux Tribe or

members thereof.

(7 9.) In 1957, by authority of the Federal

Property and Administrative Services Act of 1949,

Pub. L. No. 63-152, 63 Stat. 378, allowing disposal of

surplus federal property to stimulate’ industrial

development, Pickstown was designated by Congress

Lands to Crow Creek Sioux Indians, Pub lL No 85-916, 72 Stat

1766, Act of September 2, 1958, Oahe Dam and Reservoir

Project, Pub L No. 85-915, 72 Stat 1762 (Standing Rock Sioux

Tribe); Act of September 3, 1954, Pub. L No 83-776, 68 Stat

1191 (OQahe Dam-Cheyenne River Tribe); Act of October 29, 1949,

Pub. L. No 81-437, 68 Stat 1026 (Garrison Dam-Fort Berthold

Tribe)

The title to this Act refers to the “Yankton Sioux Indian

Reservation ” Yet within the body of this enactment only Lower

Brule and Crow Creek are referred to as reservations Whereas.

the body of this law refers to Yankton “tribal and allotted lands ”

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&

(| 10.] We appreciate, of course, that a federally

authorized townsite may still be Indian country if it

exists within the boundaries of an [Indian reservation,

even after title has been transferred in fee to non-

Indians. Seymour v. Superintendent of Washington

State Penitentiary, 368 U.S. 351, 358-59, 82 S.Ct. 424,

428-29, 7 L.Ed.2d 346 (1962). In addition, reservation

land taken by eminent domain will not necessarily

extinguish reservation boundaries. Lower Brule Stoux

Tribe v. State of South Dakota, 711 F.2d 809 (8th

Cir.1983). Yet, when read together, these enactments

appear incompatible with any conception of this

region as part of an existing Indian reservation. No

reference is made to taking “reservation” land from

the Yankton Sioux in the various flood control takings

statutes. And Congress must not have considered

Pickstown Indian country taken in trust for the

Yankton Tribe or its members, for it was not returned

to them, but to the municipal corporation

|

[qf] 11.] Nonetheless, the Federal Government

has been inconsistent in its references to the Yankton

The amendment also conveyed an additional twenty-thre

acres of Jand used by Pickstown as a sanitary landfill The Corps

of Engineers retained a 9-acre tract where maintenance build

ings and an office building are located The office building

houses the town’s Post Office and Credit Union under lease Also

retained was a cold storage warehouse and immediate

located on a 1l6-acre tract

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App.

land is set aside for an Indian reservation and no

matter what happens to the title of individual plot

within the area, the entire block retains its reserva-

tion status until Congress explicitly indicates other-

wise.

Solem v. Bartlett, 465 U.S. 463, 470, 104 S.Ct.

ane 1166, 79 L.Ed.2d 443 (1984) (citing United

st uv. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94-

95, 4 L.Ed. 195 (1909)); see also Yankton Sioux Tribe,

522 U.S. at 343, 118 S.Ct. at 798 (““[O]nly Congress

can alter the terms of an Indian treaty by diminish-

ing a reservation.”); DeCoteau v. District County

Court for the Tenth Judicial Dist., 420 U.S. 425, 444,

95 S.Ct. 1082, 1092-93, 43 L.Ed.2d 300 (1975) (after a

reservation has been created “all tracts included

within it remain a part of the reservation until sepa-

rated therefrom by Congress”); Monroe Price &

Robert Clinton, Law and the American Indian 96 (2d

ed. 1973) (“Once a reservation has been established,

or a dependent Indian community shown to exist,

will remain Indian country until terminated by

Congress, irrespective of the nature of the land own-

ership.”

({ 13.] Congressional intent to terminate a

reservation is not “lightly found” and ape copie are

to be resolved against it. Hagen v. Utah, 510 U.S. 399,

411, 114 S.Ct. 958, 965, 127 L.Ed.2d 252 (1994)

(citations omitted); see also DeCoteau, 420 U.S. at

444, 95 S.Ct. at 1092-93. Intent to remove land from

reservation status must be clearly manifested

DeCoteau, 420 U.S. at 444, 95 S.Ct. at 1093. Without

App. 176

unambiguous intent, the general rule that “doubtful

expressions” are construed in a light most favorable

to the Indians, applies to our review of statutory and

treaty language. /d.

3

[1 14.] The Federal Government generally has

jurisdiction over Indian country, along with the

Indian Tribe inhabiting it. Alaska v. Native Village of

Venetie Tribal Gov’t, 522 U.S. 520, 527 n. 1, 118 S.Ct.

948, 952 n. 1, 140 L.Ed.2d 30 (1998) [Venetie |].

Bruguier contends that whatever their present own-

ership, all originally allotted lands maintain Indian

country status under 18 USC § 115l(a), as they lie

within the 1858 boundaries of the Yankton Sioux

Indian Reservation. He believes that nothing in the

negotiations, the treaty, or the later development in

the territory suggests that sales of allotted \and to

non-Indians would diminish the reservation beyond

what the sale of the uwnallotted land accomplished. On

the other hand, the State argues, based on Greger,

that the reservation was disestablished by the 1894

Act, leaving as Indian country only Indian retained

allotments and tribally owned land.

This was essentially the U.S. District Court’s decision 1

Gaffey, 14 F Supp 2d at 1135

As we were only dealing with the question whether the

sale of all unallotted lands shrunk the boundanes of the reser

vation, Greger found the reservation had been diminished

}

rather than disestablished

App. 177

(¥ 15.] Our task is to decide whether Pickstown

is Indian country. More precisely, the question is

whether parcels originally allotted to individual

Yanktons compose part of a permanent reservation

under 18 USC § 1151l(a), or whether only those allot-

ments still held in Indian hands are Indian country

under 18 USC § 1151l(c)." Three categories of land

qualify as Indian country under 18 USC § 1151. First,

§ 1151(a) includes as Indian country those lands

within the boundaries of a reservation under United

States Government jurisdiction. Second, § 1151(b)

defines Indian country as “all dependent Indian

communities” within the United States. We need not

address this subsection as no one in this appeal

contends the Pickstown site or any other place on

sumilarly non-retained allotment land is a “dependent

Indian community.” Third, §115l(c) includes as

* 18 USC § 1151 provides:

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 1ssu-

ance of any patent, and, including rights-of-way run-

ning 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 In-

dian titles to which have not been extinguished, in-

cluding nghts-of-way running through the same

App. 178

Indian country all Indian allotments that have not

lost their Indian titles.”

[7 16.] In State ex rel. Hollow Horn Bear, 77

S.D. 527, 95 N.W.2d 181 (1959), we interpreted 18

USC § 1151 to mean that subsection (a) encompasses

those areas within a reservation, and that subsection

(c) applies to those lands standing outside reservation

boundaries.

If subsection (a) is to receive a literal inter-

pretation a patent to allotted lands within

the limits of such a reservation which oper-

ated to extinguish the Indian title would not

remove such a tract from Indian country, but

'S 18 USC § 115i was enacted in 1948 The Reviser’s Note to

the statute indicates that the definition of Indian country was

derived from “the latest construction of the term by the United

States Supreme Court.” 18 USC § 1151 reviser’s note Congress

used language from United States v McGowan, 302 U.S 535, 58

S Ct. 286, 82 LEd 410 (1938), United States v Pelican, 232 US

442, 34 S.Ct. 396, 58 L Ed. 676 (1914), United States v. Sando-

val, 231 U.S. 28, 34S Ct 1, 58 L Ed. 107 (1913), and Donnelly v.

United States, 228 US. 243, 33 SCt 449, 57 LEd 820 (1913).

In Pelican, the Court decided whether an Indian allotment that

was once part of the Colville Indian Reservation but was

situated in a part of the reservation that had been opened to

settlement by Congress was Indian country. 232 US at 444-45,

34 S.Ct at 397. The Colville Indian Reservation was included in

the definition of Indian country, as it had “been segregated from

the public domain” Jd. at 445, 34 SCt at 397. The Court

concluded that because the land was an allotment held in trust

for an individual Indian, the federal government still retained

criminal jurisdiction over this land, even though the land lay in

the diminished part of the reservation Jd at 447, 34 S.Ct at

398

App. 179

under subsection (c) such a patent would so

operate. Hence, it seems logical to believe

that the Congress intended subsection (a) to

apply to the closed area of reservations, and

(c) to apply to allotted lands in open territory.

Hollow Horn Bear, 95 N.W.2d at_ 185. If the only

Indian country remaining is land the Yankton Tribe

acquired long after the 1894 Act, along with remain-

ing Indian owned allotments under § 115l(c), then

the Yankton Sioux Reservation may be considered

congressionally terminated.

F

[{{ 17.) In Yankton Sioux Tribe, the Supreme

Court ruled that “Congress diminished the Yankton

Sioux Reservation in the 1894 Act, that the unallotted

tracts no longer constitute Indian country, and thus

... the State has primary jurisdiction over ... lands

ceded under the Act.” 522 U.S. at 358, 118 S.Ct. at

805. The Court limited its holding to deciding only

that the “unallotted, ceded lands were severed from

the reservation[.]” Jd. (emphasis added). Left unde-

cided was whether there now exists any reservation

boundary, and if so, where it lies. We conclude, the

boundaries created in the 1858 Treaty no longer exist

because no provision was made in the 1894 Act to

delineate any boundary, as in the 1858 Treaty. In

most instances, when a reservation is diminished, its

boundaries “shrink.” Solem, 465 U.S. at 471, 104

S.Ct. at 1166. Indeed, the Supreme Court in Yankton

App. 180

Sioux Tribe found that the 1894 Act is “readily distin-

guishable from surplus land Acts that the Court has

interpreted as maintaining reservation boundaries.”

522 U.S. at 345, 118 S.Ct. at 799.

[9 18.] Even with the 1858 boundaries extinct,

however, we still must return to the Supreme Court’s

traditional three-factor “analytical structure” to

decide the status of the lands left unresolved in

Yankton Sioux Tribe. Hagen, 510 U.S. at 411, 114

S.Ct. at 965.

The most probative evidence of diminish-

ment is, of course, the statutory language

used to open the Indian lands. We have also

considered the historical context surrounding

the passage of the surplus land Acts,

although we have been careful to distinguish

between evidence of the contemporaneous

understanding of the particular Act and mat-

ters occurring subsequent to the Act’s pas-

sage. Finally, “[oJn a more pragmatic level,

we have recognized that who actually moved

onto opened reservation lands is also rele-

vant to deciding whether a surplus land Act

diminished a reservation.”

Id. (internal citations omitted) (quoting Solem, 465

U.S. at 471, 104 S.Ct. at 1166-67). Yankton Sioux

Tribe and Greger scrutinized these three factors. We

need not repeat all their conclusions here. Instead, we

will touch on those points deemed more ambiguous.

App. 181

1. Statutory Language

[q 19.] Articles I and II of the 1894 Act provided

that the Yankton Tribe did “cede, sell, relinquish, and

convey to the United States all their claim, right,

title, and interest in and to all the unallotted lands

within the limits of the reservation” and that in

consideration for the “lands ceded, sold, relinquished,

and conveyed” the United States agreed to pay a sum

certain of $600,000. Yankton Sioux Tribe, 522 U.S. at

344, 118 S.Ct. at 798; Greger, 1997 SD 14, 4 4, 559

N.W.2d at 858. Equivalent language signaled termi-

nation of the reservation in DeCoteau, where the

Supreme Court noted that such terminology was

“precisely suited” to such purpose. 420 U.S. at 445,

95 S.Ct. at 1093. Being the most probative evidence,

this cession language manifests an_ almost

irrebuttable presumption of congressional intent.

Greger, 1997 SD 14, 9.1, 559 N.W.2d at 855-56. Yet,

other clauses in the Act are less absolute. Are these so

uncertain as to negate the nearly conclusive import of

the cession language? To appreciate the idiom of the

1894 Act, it is first important to understand the

genesis of the allotment system and the legal notion

of Indian ownership of reservations at that time.

{| 20.] Many well-meaning reformers, legisla-

tors, and federal officials viewed reservations as

interim solutions to eventual Native American assim-

ilation. When compressed, they theorized, Indian

“detribalization” and “Americanization” would take

App. 182

place.” Reservations, therefore, were expected to

have a limited life span. Arrell Morgan Gibson, The

American Indian, Prehistory to the Present, 452, 486,

489, 491 (DCHeath & Co 1980). The Dawes Act had

the dual goal of hastening the “detribalizing” process

and opening reservation land to “homeseekers.” Jd. at

494-95, 498, 506. See also Solem, 465 U.S. at 468, 104

S.Ct. at 1165 (surplus land acts anticipated imminent

demise of reservations and were enacted partly to

facilitate the process). It would end common owner-

ship by tribes, as well as the tribal way of life.

Under the practice of allotting lands in severalty

to individual Indians, title to the allotted land was

held in trust by the Government for the benefit of the

allottee, or vested in the allottee subject to a restraint

* As one historian expressed:

For more than one-half century, sincere friends of the

Indians had been advocating the individual ownership

of land as the salvation of any Indian who would ac

cept it Like other mistaken policies it was all part of

the centuries-old aim of changing Indians into white

people Break up their natural grouping, whether by

abolishing the government of advanced tribes or un

dermining the influence of primitive chiefs, and set

each family alone on a farm to develop habits of in

dustry and the pride of possession The Indians’

fnends also argued that only a fee simple title would

protect their land from the insecunty of reservation

and treaty guarantees

Angie Debo, A History of the Indians of the United States 299

(UOkPress 1970).

App. 191

examination of this question. /d. at 356, 118 S.Ct. at

804. It was congressional intent in passing the 1894

Act that primarily controls the analysis and not the

later movements of settlers and others. Yet we cannot

ignore the palpable reality that, as the years passed

after the 1895 opening, no one behaved as if the

reservation remained in existence, not the Federal

Government, not the Yankton Sioux, not the State,

not the homesteaders, not the townspeople. However

carefully we may pore over the thousands of words in

treaty negotiations, in chronicles, in agency reports,

in statutes, in latter day scholarly exegesis, we can-

not ignore the historical actuality of what happened

following the opening. The area was utterly trans-

formed.

[q 30.} Following a recurrent theme, first came

the settlers, then the railroads, then the towns, and

businesses. This precipitous change in regional

character is undeniable. If not dispositive of the

question, it certainly has a persuasive bearing on our

decision. Later actions may elucidate what Congress

expected and here “the area remains ‘predominantly

populated by non-Indians with only a few surviving

pockets of Indian allotments, and those de-

mographics signify a diminished reservation.” Jd. at

356-57, 118 S.Ct. at 804 (quoting Solem, 465 U.S. at

471 n. 12, 1048.Ct. at 1167 n. 12).

[9 31.] With the opening of the reservation came

law and order administered by the State, with few

ic

App. 192

exceptions. No distinction was made between ceded

lands and allotted lands that passed out of Indian

hands. The “single most salient fact [relating to later

jurisdictional history] is the unquestioned actual

assumption of state jurisdiction. ...” Rosebud Sioux

Tribe, 430 U.S. at 603, 97 S.Ct. at 1871. In Yankton

Sioux Tribe, the Supreme Court considered this factor

influential: “The State’s assumption of jurisdiction

over the territory, almost 1mmediately after the 1894

Act and continuing unchallenged to the present day,

further reinforces our holding.” 522 U.S. at 357, 118

S.Ct. at 804. The only areas still treated as Indian

country were the allotted lands, which remained

under Indian ownership. Later, when the Tribe

acquired certain lands, they were also considered out

of the State’s jurisdiction.

[7 32.] In the century following the opening of

the reservation, the Yanktons themselves referred to

their common land or “reservation” as a “mile

square.” Greger, 1997 SD 14, 9 5, 559 N.W.2d at 859.

At the time of the 1894 Act, this “reservation” was

federal agency land, as reserved in Article VIII, not

tribal or common land. Even more significantly, both

the 1932 Yankton Tribal Constitution and the amend-

ed Constitution of 1962 defined the Tribe’s property

as including only those tribal lands currently owned

Those exceptions have to do with tribal police and federal

officials dealing with matters on trust lands, which, as we know,

quickly dwindled.

App. 193

by the Tribe. Not until 1990 was the Yankton Consti-

tution amended to encompass all lands and waters

within the 1858 Treaty boundaries. This belated

reclamation cannot overcome a century of develop-

ment and reliance at odds with it, much less the

congressional intent in the 1894 Act.

[7 33.] We see little evidence to depart from our

previous conclusion on this point in Greger.

Today, less than ten percent of the land with-

in the 1858 Treaty boundaries is trust land.

Over 600 miles of road in the area are main-

tained by county and township authorities.

Only 22 miles are maintained by the Bureau

of Indian Affairs. The state-chartered munic-

ipalities of Wagner, Lake Andes, Dante,

Pickstown, Ravinia, and Marty all lie within

the former boundaries. Non-Indians com.

prise over two-thirds of the population in the

area.

[llf we accept defendant’s arguments, over

6000 citizens of Charles Mix County would

presently find they have become residents of

an Indian reservation. This region has not

been considered a reservation by the general

populace.

Greger, 1997 SD 14, 7¥ 29, 30, 559 N.W.2d at 867.

Dante, Lake Andes and Ravinia are on former allot-

ments. Pickstown and Wagner are partly situated on

A

~/

former allotments. The Charles Mix County seat (th:

App. 194

courthouse and law enforcement center) are located

on former allotment land.

({ 34.] Our Court has repeatedly held that

South Dakota has jurisdiction over both ceded

unallotted land and allotted parcels no longer titled

in Indian ownership. In Wood v. Jameson, 81 S.D. 12,

130 N.W.2d 95, 99 (1964), we discerned a congres-

sional purpose “to disestablish the reservation and

restore to the public domain the lands therein with

the exception of allotments in severalty.” Thus we

concluded that an offense at Lake Andes was not

committed within Indian country. In State v. William-

son, 87 S.D. 512, 211 N.W.2d 182, 184 (1973), we held

that “the Act of 1894 disestablished that portion of

the Yankton Reservation which was ceded and sold to

the United States,” including the cities of Lake Andes

and Wagner. Cf. State v. Winckler, 260 N.W.2d 356,

360 (S.D.1977) (Yankton Sioux Tribe Pork Plant at

Wagner is trust land, thus, Indian country).

[| 35.] A conclusion that, despite present own-

ership, all originally allotted land is part of a reserva-

tion creates new federal, tribal and _= state

jurisdictional lines within Charles Mix County and

its communities that not only affect law enforcement

matters, but innumerable other issues both momen-

tous and mundane: taxation, licensing, voting, eco-

nomic development, environmental protection. To

turn back now, to hold that the reservation was not

terminated when for so many years that has been

legal conception of both Indians and non-Indians,

would create a jurisdictional maze, and defeat “the

App. 195

justifiable expectations of the people living in the

area.” Hagen, 510 U.S. at 421, 114 S.Ct. at 970.

G

[1 36.) Paralleling the Act of 1894 under consid

eration here is the 1891 Act terminating the Lake

Traverse Indian Reservation as decided in DeColeau.

Yankton Sioux Tribe, 522 U.S. at 344-45, 118 S.Ct. at

798. It is difficult to find any jural distinction be

tween the two reservation sales. Even in 1892, the

negotiators for the Yankton agreement repeatedly

referred back to the Sisseton-Whapeton agreement,

expressing their intent to effect the same result. In

the end, pursuant to the General Allotment Act, both

reservations were, in the same time frame, parceled

to individual Indians, and all unallotted lands were

sold to the United States. Both Acts used the same

cession language: “cede, sell, relinquish and con-

vey....” The intent behind this language is unmis-

takably the same.

[7 37.] Like the 1891 Act, “[tjhe 1894 Act con-

tains the most certain statutory language, evincing

Congress’ intent to diminish the Yankton Sioux

Reservation by providing for total cession and fixed

compensation.” Yankton Stoux Tribe, 522 U.S. at 357,

118 S.Ct. at 805; see DeCoteau, 420 U.S. at 445-46, 95

S.Ct. at 1093-94. In each instance, all unallotted

lands were sold. With both treaties, the heart of the

preamble language recited intent “to dispose of a

portion of the land set aside and reserved” to them.

App. 197

to a non-Indian. Pickstown was created in 1946 as a

federal reserve for the U.S. Army Corps of Engineers.

Congress later relinquished ownership of this

townsite to Pickstown’s municipal corporation. It

appears that Congress did not consider this area

Indian country or an existing Indian reservation.

Nonetheless, to comply with Supreme Court jurispru-

dence in deciding if this area is Indian country, we

further considered the matter under the traditional

principles the Court instituted.

[q 39.) Our analysis requires us to interpret a

Nineteenth Century treaty, negotiated, enacted and

enforced under outmoded values and _ discarded

beliefs. In Greger, we refrained from interpreting the

1894 Act any broader than necessary. The Supreme

Court in Yankton Sioux Tribe likewise decided only

that the ceded portion of the reservation was dimin

ished. Today we proceed further to decide the jumsdic-

tional status of former allotments.

[7] 40.] We conclude that Pickstown is not

Indian country under 18 USC § 1151. It is not situat-

ed within the boundaries of a reservation because the

Yankton Sioux Reservation was effectively terminat-

ed by the 1894 Act. Nor 1s it trust land, a dependent

Indian community, or property held by the Tribe.

Consequently, the State properly exercised jurisdic

tion over Bruguier and the circuit court correctly

denied his habeas corpus petition.

[7 41.] Affirmed.

including those parcels now owned by non Indians, as

well as Indian owned land and the land reserved from

sale in the 1892 agreement for agency, school, and

other tribal purposes. Jd. at 1159. It concluded that

primary criminal and civil jurisdiction over these

lands belongs to the Tribe and the United States. Id.

The court then issued declaratory judgments and

enjoined state and county officials from exercising

criminal law enforcement jurisdiction over tribal

members alleged to have committed crimes on reser-

vation land. Jd. at 1159-60.

The State, the District, and the individual state

and county officials appealed from these judgments

in four separate appeals which have been consoli-

dated by this court. A motion to expedite the appeals

was also granted. The four groups of appellants all

Several other motions have been filed The County has

moved to have the bnefs to the Supreme Court lodged with the

clerk The Supreme Court briefs were made part of the record in

the district court and are available online. The motion is denied

since the bnefs are already available The Tribe and the United

States have moved to strike portions of the District’s brief and to

strike the amicus bnefs of Gary Beeson and the Cities of Dante,

Geddes, Lake Andes, Pickstown, Platte, Ravinia, and Wagner

(collectively Cities) In addition, the Tbe has moved to strike

the amicus brief of Harvey P Weisser All the motions to strike

allege that the challenged bnefs refer to documents which are

not part of the record on appeal and thus violate Fed. RApp P

10(a) With the exception of the affidavits of Jonelle J Drapeau

and Ed Zylstra, submitted as addenda to the amicus brief of the

Cites, the challenged references do not deal for the first time

with key factual matemnal about which the opposing parties were

unaware. The motions to stmke portions of the Distmct’s bnef

(Continued on following page)

App. 207

present complementary arguments; they will be

referred to collectively as “the State” when their

arguments do not differ. The United States offers

numerous arguments supportive of the Tribe’s posi-

tion; both appellees will be referred to collectively as

“the Tribe” except where their arguments diverge.

Each side basically argues that it is entitled to win on

all issues left open by the Supreme Court in Yankton.

The contentions between them primarily involve

questions of law which we review de novo, although

any factual findings are reviewed for clear error. See

Fed.R.Civ.P. 52(a).

The State asserts that the 1894 Act disestab-

lished the Yankton Sioux Reservation and that the

only remaining indian country within the original

boundaries are “Indian allotments, the Indian titles

to which have not been extinguished.” 18 U.S.C.

§ 1151(c). It claims that the Supreme Court held in

Yankton that the reservation boundaries did not

remain intact and that it also implied that DeCoteau

v. District County Court, 420 U.S. 425, 95 S.Ct. 1082,

43 L.Ed.2d 300 (1975) (finding the Lake Traverse

Reservation completely disestablished), controls the

outcome here. The State interprets the text of the

1894 Act and its legislative history as illustrating the

parties’ intent to eliminate the reservation, and it

and portions of the Weisser and Beeson briefs are demied The

motions to strike the Cities’ brief are granted only to the extent

that they seek to stmke the Drapeau and Zylstra affidavits;

these affidavits are stricken and have not been considered

SU Snr nce ee

App. 208

finds further support for this position in the subse-

quent treatment of the area. It argues that immedi-

ately following the 1894 Act the Tribe itself did not

hold any land in common, and the State’s exercise of

jurisdiction over the area has led landowners to

develop reasonable expectations that their lands are

not Indian country.

The Tribe argues that the district court correctly

ruled that all the nonceded land within the original

exterior reservation boundaries constitutes the pre-

sent Yankton Sioux Reservation.’ The Supreme Court

finding of diminishment in Yankton does not mean

that the reservation boundaries did not continue as

before, and it cites in support the Tenth Circuit’s

decision in Ute Indian Tribe v. Utah, 114 F.3d 1513

(10th Cir.1997), cert. denied, 522 U.S. 1107, 118 S.Ct.

1034, 140 L.Ed.2d 101 (1998). The Tribe argues that

DeCoteau does not control because each agreement

and treaty with an Indian tribe is unique and must

be examined in light of the circumstances surround-

ing its passage. See Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, __, 119 S.Ct. 1187,

1203, 143 L.Ed.2d 270 (1999). It contends that the

required clear statement of congressional intent to

disestablish the reservation cannot be found in the

' The district court observed that the Tribe’s Constitution as

amended in 1990 claimed jurisdiction “extending to the original

extenor 1858 boundaries” Yankton Sioux Tribe v Gaffey, 14

F Supp 2d at 1157 But see Yankton, 118 S.Ct. at 804-05 (quoting

the Constitution drafted in 1932 and amended in 1962)

App. 209

text of the 1894 Act, the legislative history, or the

historical circumstances surrounding its passage. It

argues instead that these documents show that

Congress and the parties who negotiated the agree-

ment intended all the nonceded land to retain its

reservation status.

B.

The Yankton Court explicitly limited the scope of

its holding to the status of the ceded lands. Those

“surplus” lands were intended by the 1892 agreement

to be sold to white settlers, but a small amount of

unallotted land was reserved from sale for use by the

federal government. This land was returned to the

Tribe in 1929 and remains under its control. See Act

of February 13, 1929, ch. 183, 45 Stat. 1167. The

Supreme Court refrained from going beyond what

was necessary for it to decide in Yankton, and it did

not determine issues of current jurisdiction over the

nonceded lands which were reserved from sale or

were originally allotted to individual tribal members.

See Yankton, 118 S.Ct. at 805.

Allotment is a term of art in Indian law. It refers

to the distribution to individual] Indians of property

rights to specific parcels of reservation. See Affiliated

Ute Citizens v. United States, 406 U.S. 128, 142, 92

S.Ct. 1456, 31 L.Ed.2d 741 (1972). The rights of use

and occupancy to these lands were initially held in

common by the Tribe, and the federal allotment policy

sought to advance assimilation of the Indians by

App. 210

promoting its prevailing concept of individual land

ownership. The practice of allotting reservation land

began with the 1887 passage of the General Allot-

ment Act (Dawes Act), ch. 119, 24 Stat. 388 (1887)

(codified as amended at 25 U.S.C. § 331). Under the

Dawes Act individual tribal members received pa-

tents for allotments of reservation land in parcels of

up to 160 acres, to be held in trust by the federal

government for twenty five years. At the end of the

trust period the United States would convey the

allotment in fee to the individual allottee, who would

then be subject to the civil and criminal laws of the

State or Territory in which he resided. /d. at 389-90.

At the time there was increasing pressure for western

land for white settlers, and the Dawes Act provided

that the Secretary of the Interior could negotiate with

an Indian tribe to purchase all unallotted lands. /d.

The act was thus a two pronged effort to open up

lands for white settlement and to encourage assimila

tion of the Indians. It was considered a critical ele:

ment in assimilation because the Indian concept of

tribal control over land was fundamentally different

from the European American concept of individual

land ownership. See Felix Cohen, Handbook of Feder

al Indian Law 131-32 (1982 ed.).

Approximately three-fifths of the Yankton Sioux

Reservation was allotted under the Dawes Act and an

act of February 28, 189° ch. 383, 26 Stat. 794

(amending and extending tne Dawes Act). Although

the trust period was initially set at twenty five years,

it was’ terminated early for some allotments and

App. 217

Council of the Yankton Indians (Dec. 17. 1892). tran-

scribed in S. Exec. Doc. No. 27, at 81.

The Tribe proved reluctant to accept the offer to

purchase its surplus lands. The Commission's reports

show its work was made difficult by the Indians’

distrust of the federal government and by factional

divisions within the Tribe. See Report of the Yankton

Indian Commission (March 31, 1893), reprinted in 5S.

Exec. Doc. No. 27, at 7-25 (hereinafter Report). Some

tribal members favored the sale and focused their

energies on obtaining the highest possible price for

the land, while others expressed strong opposition to

any sale of tribal lands. See id. at 8-11. Key issues in

the negotiations included the price to be paid for the

lands, the payment of money due to individual Ind-

ans who had served as scouts for the United States,

the continued payment of annuities pursuant to the

1858 Treaty, and the exclusion of alcohol from the

ceded area. See id. at 12-21. As the Commussion

reported: “Careful inquiry into the conditions and

requirements of these Indians soon revealed to us the

fact that the purchase of the surplus land was but a

small part of our mission and of minor importance to

both the Indians and the Government, the provisions

connected therewith for the future welfare of the

Indians being of greater importance to them and to

the Government than the sale of their surplus lands.”

Id. at 17.

In December of 1892, the Commission finally

reached an agreement with the Tribe whereby it

agreed in Articles I and II to “cede, sell, relinquish,

App. 218

and convey to the United States all their claim. right,

title, and interest in and to all the unallotted lands

within the limits of the reservation” for $600.000. 28

Stat. at 314-15. Article VIII provided that the por-

tions of the ceded land currently occupied by the

United States for “agency, schools, and other purpos-

es” would be reserved from sale to settlers. 28 Stat. at

316. Article XVIII stated that the agreement did not

abrogate the Tribe's rights under the 1858 treaty, 28

Stat. at 318, but this language pertained only to the

right to receive annuities, not to the reservation

boundaries. See Yankton, 118 S.Ct. at 799. Several

other sections of the agreement are relevant to these

appeals, but many are not."

By 1893 the Commissioners had collected the

signatures required to show endorsement of the

agreement by a majority of the adult male members

Articles VII, [X-XV1I, and XIX-XX have little beanng on

the issues here Article VII provided for gifts of gold pieces to

tnbal members 28 Stat. at 316 Article IX allowed uncultivated

allotted land to be leased Jd. Article X allowed religious socie-

ties to purchase ceded land on which they were operating Zd. at

316-17. Article XII provided that the money paid under the

agreement was not subject to claims by creditors Jd at 317.

Article XIII fixed the status of mixed bloods Jd Article XIV

required the government to complete the allotment process as

soon as possible Jd Article XV settled the claims of the Yankton

scouts who had not been paid for their services. Jd Article XV]

settled the Tribe's claim to the Pipestone Reservation Id at 317-

18 Article XIX required a copy of the agreement to be placed in

the Yankton “Agreement Book "Jd Article XX bound the parties

upon ratification by Congress Jd

App. 219

of the Tribe. Congressional action to ratify the agree-

ment was delayed, however, by the need to investi-

gate allegations of fraud in the procurement of

signatures. Congress finally ratified the agreement

on August 15, 1894, along with two other similar

surplus land sale agreements. 28 Stat. at 314-20. The

1894 Act incorporated the entire 1892 agreement,

appropriated necessary funds, prescribed a punish-

ment for violating the liquor prohibition, and re-

served some sections for common school purposes. /d.

B.

Our starting point in analyzing the 1894 Act is

the Supreme Court’s Yankton decision, which each

side not surprisingly interprets in its own favor. The

State asserts that Yankton provides an easy answer

to the questions before the court because it shows

that the reservation status of all land within the

original boundaries has been lost. Because the Court

relied on DeCoteau, 420 U.S. 425, 95 S.Ct. 1082, 43

L.Ed.2d 300, for the proposition that certain language

in the 1894 Act was precisely suited to terminating

reservation status, and because DeCoteau had found

the Lake Traverse Reservation completely disestab-

lished, it necessarily follows that the 1894 Act simi-

larly completely disestablished the Yankton Sioux

Reservation. In contrast, the Tribe distinguishes

DeCoteau and claims that Yankton ‘s holding of

diminishment does not mean the reservation has

been disestablished or its exterior boundaries

changed.

a

App. 220

Justice O’Connor, writing for the unanimous

Yankton Court, articulated its precise holding as

follows:

In sum, we hold that Congress diminished

the Yankton Sioux Reservation in the 1894

Act, that the unallotted tracts [which were

ceded to the United States through that Act]

no longer constitute Indian country, and thus

that the State has primary jurisdiction over

the waste site and other lands ceded under

the Act.

Yankton, 118 S.Ct. at 805. The Court explicitly de-

clined to decide whether or not the 1894 Act altered

the status of the nonceded lands. As Justice O’Connor

explained, “[w}e need not determine whether Con-

gress disestablished the reservation altogether in

order to resolve this case, and accordingly decline to

do so.” Jd. Whether or not other land within the

original reservation boundaries retained its reserva-

tion status thus remained an open question.

Although the Court used DeCoteau in reaching

its conclusion of diminishment, the Yankton holding

was explicitly more limited than that in the earlier

case. In DeCoteau, the Supreme Court analyzed the

circumstances surrounding the ratification and the

text of an agreement ceding certain lands on the Lake

Traverse Reservation to the United States and held

that the reservation there had been completely dises-

tablished. DeCoteau, 420 U.S. at 427, 95 S.Ct. 1082.

The background of the Lake Traverse agreement was

very different from that of the 1894 Act, however,

App. 221

because the tribal members there had expressed their

clear desire to terminate their reservation. See

DeCoteau, 420 U.S. at 432, 95 S.Ct. 1082. In exchange

they negotiated allotments for each individual, in-

cluding married women. See Act of March 3, 1891, ch.

543, 26 Stat. 989, 1037-38. The circumstances sur-

rounding the negotiation of the 1892 agreement with

the Yankton Sioux and the difficulty in obtaining

tribal votes to ratify it are significantly different, and

there was no expression by the Indians of an intent to

eliminate their reservation. Even more important,

the content and wording of the agreements are very

different, aside from the particular cession language

the Supreme Court compared in Yankton. Compare 26

Stat. 1036-38, with 28 Stat. 314-18.

It is well established that similar treaty

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