# Appendix — Hein v. Yankton Sioux Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0859%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2011 - **Citation:** 564 U.S. 1019 ## Text ouipreme Court, U.S. a upreme Lourt, U.S ay Ui iten Sot THI of the Gnited : i HARLES MIX Y COMMISSION HARLES MIx f 'Y COMMISSION ITA] Ty I 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 ’ ; } ; r\r " . f+ >’? vy : " — « ‘" ‘ J 4 , = = “ ~ = — ; = j + . ; . j 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. I ai LCeCr Y LOUXxX k S } A Kton — 4 a4 ~ 7) pa —_ = ‘— o~ Q"* 4 i ‘oe = ~ a 2S > — rf “J rm ) ort = / f po? ‘al a4 eed nm ~~ ae! + ~\ ~~ i 0) oa aed e aml ~A —/ f co ad ba ~ iJ 4 - nd - — | = ~~ — = =“ " j - ao — P. 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; “§ 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 ” ’ " > . Ub LUO v4 a i] i ‘ Cc &, 4 ) 1¢ } . ? , = ) | ss ( i ¢ ‘ | . / I t ‘ 1 } _ 4 | \ | A iN ; . me = 7 \ ¢ 1 ty tt ct +1? : , ther y it ALL A Ul i uv Li aliqil . aily ( i , rhe f la the Se ogn4 - yf th A ones Ly S10n OT law, the omecrelar’ry AAT I Y SI ’ nsf T witho 7 .a) } ? if ? 1? caAlini< YY it J Ad } Ul at ae v*+ a ‘ . . , 4 ti, > 4 WaATTANLY OF « VY KRING, all FiIgn l a ] T T T } 7 > . . > . > . ’ ? erests of the United States 1 i ats a } , } ‘tal , ee WI ss (i ( ye bALILOU LUQdIT) ew TARTS . o> + . +} mproven | ,y [ T } t , { > i COrporatwl Piilak i property. ” Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082, 4242. & (| 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 ti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0859%3A02. Public record. Not legal advice.