OCTOBER TERM, 1997
Syllabus
SOUTH DAKOTA
v. YANKTON SIOUX TRIBE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No.96-1581. Argued December 8, 1997-Decided January 26,1998
The Yankton Sioux Reservation in South Dakota was established
pursuant to an 1858 Treaty between the United States and the
Yankton Tribe. Congress subsequently retreated from the reservation
concept and passed the 1887 Dawes Act, which permitted the
Government to allot tracts of tribal land to individual Indians
and, with tribal consent, to open the remaining holdings to
non-Indian settlement. In accordance with the Dawes Act, members of
the respondent Tribe received individual allotments and the
Government then negotiated with the Tribe for the cession of the
remaining, unallotted reservation lands. An agreement reached in
1892 provided that the Tribe would "cede, sell, relinquish, and
convey to the United States" all of its unallotted lands; in
return, the Government agreed to pay the Tribe $600,000. Article
XVIII of the agreement, a saving clause, stated that nothing in its
terms "shall be construed to abrogate the [1858] treaty" and that
"all provisions of the said treaty ... shall be in full force and
effect, the same as though this agreement had not been made."
Congress ratified the agreement in an 1894 statute, and non-Indians
rapidly acquired the ceded lands.
In this case, tribal, federal, and state officials disagree as
to the environmental regulations applicable to a solid waste
disposal facility that lies on unallotted, non-Indian fee land, but
falls within the reservation's original 1858 boundaries. The Tribe
and the Federal Government contend that the site remains part of
the reservation and is therefore subject to federal environmental
regulations, while petitioner State maintains that the 1894
divestiture of Indian property effected a diminishment of the
Tribe's territory, such that the ceded lands no longer constitute
"Indian country" under 18 U. S. C. § 1151(a), and the State now has
primary jurisdiction over them. The District Court declined to
enjoin construction of the landfill but granted the Tribe a
declaratory judgment that the 1894 Act did not alter the 1858
reservation boundaries, and consequently that the waste site lies
within an Indian reservation where federal environmental
regulations apply. The Eighth Circuit affirmed.
Held: The 1894 Act's operative language and the
circumstances surrounding its passage demonstrate that Congress
intended to diminish the Yankton Reservation. pp. 343-358.
330
(a) States acquired primary jurisdiction over unallotted opened
lands if the applicable surplus land Act freed those lands of their
reservation status and thereby diminished the reservation
boundaries,
Solem v.
Bartlett, 465 U. S. 463,467, but
the entire opened area remained Indian country if the Act simply
offered non-Indians the opportunity to purchase land within
established reservation boundaries,
id., at 470. The
touchstone to determine whether a given statute diminished or
retained reservation boundaries is congressional purpose, see
Rosebud Sioux Tribe v.
Kneip, 430 U. S. 584, 615, and
Congress' intent to alter an Indian treaty's terms by diminishing a
reservation must be "clear and plain,"
United States v.
Dion, 476 U.
S. 734, 738-739. The most probative evidence of congressional
intent is the statutory language, but the Court will also consider
the historical context surrounding the Act's passage, and, to a
lesser extent, the subsequent treatment of the area in question and
the pattern of settlement there.
Hagen v.
Utah,
510 U. S. 399,
411. Ambiguities must be resolved in favor of the Indians, and the
Court will not lightly find diminishment.
Ibid. Pp.
343-344.
(b) The plain language of the 1894 Act evinces congressional
intent to diminish the reservation. Article 1's "cession"
language-the Tribe will "cede, sell, relinquish, and convey to the
United States all their claim, right, title, and interest in and to
all the unallotted lands"-and Article II's "sum certain"
language-whereby the United States pledges a fixed payment of
$600,000 in return-is "precisely suited" to terminating reservation
status. See
DeCoteau v.
District County Court for Tenth
Judicial Dist., 420 U. S. 425, 445.
Indeed, when a surplus land Act contains both explicit cession
language, evidencing "the present and total surrender of all tribal
interests," and a provision for a fixed-sum payment, representing
"an unconditional commitment from Congress to compensate the Indian
tribe for its opened land," a "nearly conclusive," or "almost
insurmountable," presumption of diminishment arises. See
Solem,
supra, at 470; see also
Hagen, supra, at 411. Pp.
344-345.
(c) The Court rejects the Tribe's argument that, because the
1894 Act's saving clause purported to conserve the 1858 Treaty, the
existing reservation boundaries were maintained. Such a literal
construction would eviscerate the 1892 agreement by impugning the
entire sale. Rather, it seems most likely that the parties inserted
Article XVIII, including both the general statement regarding the
force of the 1858 Treaty and a particular provision ensuring that
the "Yankton Indians shall continue to receive their annuities
under [that treaty]," for the limited purpose of assuaging the
Tribe's concerns about their entitlement to annuities. Discussion
of the annuities figured prominently in the negotiations that led
to the 1892 agreement, but no mention was made of the preservation
of the 1858 boundaries. Pp. 345-349.
331
(d) Neither the 1894 Act's clause reserving sections of each
township for schools nor its prohibition on liquor within the ceded
lands supports the Tribe's position. The Court agrees with the
State that the school sections clause reinforces the view that
Congress intended to extinguish the reservation status of the
unallotted land. See,
e. g., Rosebud, supra, at 601; but see
Solem, supra, at 474. Moreover, the most reasonable
inference from the inclusion of the liquor prohibition is that
Congress was aware that the opened, unallotted areas would
henceforth not be "Indian country," where alcohol already had been
banned.
Rosebud, supra, at 613. Pp. 349-351.
(e) Although the Act's historical context and the area's
subsequent treatment are not such compelling evidence that,
standing alone, they would indicate diminishment, neither do they
rebut the "almost insurmountable presumption" that arises from the
statute's plain terms. The manner in which the Government
negotiated the transaction with the Tribe and the tenor of the
legislative reports presented to Congress reveal a contemporaneous
understanding that the 1894 Act modified the reservation. See
Solem, supra, at 471. The legislative history itself adds
little because Congress considered several surplus land sale
agreements at the same time, but the few relevant references from
the floor debates support a finding of diminishment. In addition,
the Presidential Proclamation opening the lands to settlement
contains language indicating that the Nation's Chief Executive
viewed the reservation boundaries as altered. See
Rosebud,
supra, at 602-603. Pp. 351-354.
(f) Despite the apparent contemporaneous understanding that the
1894 Act diminished the reservation, in the years since, both
Congress and the Executive Branch have described the reservation in
contradictory terms and treated the region in an inconsistent
manner. The mixed record reveals no dominant approach, and it
carries but little force in light of the strong textual and
contemporaneous evidence of diminishment.
E. g., Rosebud,
supra, at 605, n. 27. Pp. 354-356.
(g) Demographic factors also signify diminishment: The Yankton
population in the region promptly and drastically declined after
the 1894 Act, and the area remains predominantly populated by
non-Indians with only a few surviving pockets of Indian allotments.
Solem, supra, at 471, and n. 12. The Court's holding is
further reinforced by the State's assumption of jurisdiction over
the ceded territory almost immediately after the 1894 Act, and by
the lack of evidence that the Tribe has attempted until recently to
exercise jurisdiction over nontrust lands.
99
F.3d 1439, 1456. Finally, the Yankton Constitution, drafted in
1932 and amended in 1962, defines the Tribe's territory to include
only those tribal lands within the 1858 boundaries "now owned" by
the Tribe. Pp.356-357.
332
(h) The conflicting understandings about the status of the
reservation, together with the fact that the Tribe continues to own
land in common, caution the Court to limit its holding to the
narrow question presented: whether unallotted, ceded lands were
severed from the reservation. The Court need not determine whether
Congress disestablished the reservation altogether in order to
resolve this case, and accordingly declines to do so. See,
e.
g., Hagen, supra, at 421. pp. 357-358.
99 F.3d
1439, reversed and remanded.
O'CONNOR, J., delivered the opinion for a unanimous Court.
Mark W Barnett, Attorney General of South Dakota, argued
the cause for petitioner. With him on the briefs was
John
Patrick Guhin, Deputy Attorney General.
Kenneth W Cotton
filed a brief for the Southern Missouri Waste Management District,
respondent under this Court's Rule 12.4, in support of
petitioner.
James G.
Abourezk argued the cause for respondent
Yankton Sioux Tribe et al. With him on the brief were
Bobbie
Barbara McDowell argued the cause for the United States as
amicus curiae urging affirmance. With her on the brief were Acting
Solicitor General Waxman, Assistant Attorney General Schiffer,
Deputy Solicitor General Kneedler, and Edward J. Shawaker.
*
*Briefs of
amici curiae urging reversal were filed for
Charles Mix County, South Dakota, by
Tom D. Tobin and
Matthew F.
Gaffey; for the City of Dante et al. by
Timothy R. Whalen; for Duchesne County, Utah, by
Herbert
Wm. Gillespie; and for Lewis County, Idaho, by
Kimron R.
Torgerson.
Reid Peyton Chambers, Arthur Lazarus, Jr., and
William
R. Perry filed a brief for the Standing Rock Sioux Tribe et al.
as
amici curiae urging affirmance.
A brief of
amici curiae was filed for the State of
California et al. by
Daniel E. Lungren, Attorney General of
California, and
Thomas F.
Gede, Special Assistant
Attorney General,
Alan G.
Lance, Attorney General of
Idaho, and
Steven W Strack, Assistant Attorney General, and
by the Attorneys General for their respective States as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Jeremiah W (Jay) Nixon of Missouri,
333
JUSTICE O'CONNOR delivered the opinion of the Court. This case
presents the question whether, in an 1894 statute that ratified an
agreement for the sale of surplus tribal lands, Congress diminished
the boundaries of the Yankton Sioux Reservation in South Dakota.
The reservation was established pursuant to an 1858 Treaty between
the United States and the Yankton Sioux Tribe. Subsequently, under
the Indian General Allotment Act, Act of Feb. 8, 1887, 24 Stat.
388, 25 U. S. C. § 331 (Dawes Act), individual members of the Tribe
received allotments of reservation land, and the Government then
negotiated with the Tribe for the cession of the remaining,
unallotted lands. The issue we confront illustrates the
jurisdictional quandaries wrought by the allotment policy: We must
decide whether a landfill constructed on non-Indian fee land that
falls within the boundaries of the original Yankton Reservation
remains subject to federal environmental regulations. If the
divestiture of Indian property in 1894 effected a diminishment of
Indian territory, then the ceded lands no longer constitute "Indian
country" as defined by 18 U. S. C. § 1151(a), and the State now has
primary jurisdiction over them. In light of the operative language
of the 1894 Act, and the circumstances surrounding its passage, we
hold that Congress intended to diminish the Yankton Reservation and
consequently that the waste site is not in Indian country.
I A
At the outset of the 19th century, the Yankton Sioux Tribe held
exclusive dominion over 13 million acres of land between the Des
Moines and Missouri Rivers, near the boundary that currently
divides North and South Dakota. H. Hoover, The Yankton Sioux 25
(1988). In 1858, the
Frankie Sue Del Papa of Nevada, Jan Graham of Utah, and William
U. Hill of Wyoming.
334
Yanktons entered into a treaty with the United States renouncing
their claim to more than 11 million acres of their aboriginal lands
in the north-central plains. Treaty of Apr. 19, 1858, 11 Stat. 743.
Pursuant to the agreement, the Tribe ceded
"all the lands now owned, possessed, or claimed by them,
wherever situated, except four hundred thousand acres thereof,
situated and described as follows, to wit-Beginning at the mouth of
the Naw-izi-wa-koo-pah or Chouteau River and extending up the
Missouri River thirty miles; thence due north to a point; thence
easterly to a point on the said Chouteau River; thence down said
river to the place of beginning, so as to include the said quantity
of four hundred thousand acres." Art. I, id., at 744.
The retained portion of the Tribe's lands, located in what is
now the southeastern part of Charles Mix County, South Dakota, was
later surveyed and determined to encompass 430,405 acres. See
Letter from the Commissioner of Indian Affairs to the Secretary of
the Interior (Dec. 9, 1893), reprinted in S. Exec. Doc. No. 27, 53d
Cong., 2d Sess., 5 (1894) (hereinafter Letter). In consideration
for the cession of lands and release of claims, the United States
pledged to protect the Yankton Tribe in their "quiet and peaceable
possession" of this reservation and agreed that "[n]o white
person," with narrow exceptions, would "be permitted to reside or
make any settlement upon any part of the [reservation]." Arts. IV,
X, 11 Stat. 744, 747. The Federal Government further promised to
pay the Tribe, or expend for the benefit of members of the Tribe,
$1.6 million over a 50-year period, and appropriated an additional
$50,000 to aid the Tribe in its transition to the reservation
through the purchase of livestock and agricultural implements, and
the construction of houses, schools, and other buildings.
335
Not all of this assistance was forthcoming, and the Tribe
experienced severe financial difficulties in the years that
followed, compounded by weather cycles of drought and devastating
floods. When war broke out between the United States and the Sioux
Nation in 1862, the Yankton Tribe alone sided with the Federal
Government, a decision that isolated it from the rest of the Sioux
Federation and caused severe inner turmoil as well. The Tribe's
difficulties coincided with a period of rapid growth in the United
States' population, increasing westward migration, and ensuing
demands from non-Indians to open Indian holdings throughout the
Western States to settlement.
In response to these "familiar forces,"
DeCoteau v.
District County Court for Tenth Judicial Dist., 420 U. S. 425, 431
(1975), Congress retreated from the reservation concept and began
to dismantle the territories that it had previously set aside as
permanent and exclusive homes for Indian tribes. See
Solem
v.
Bartlett, 465 U. S. 463, 466
(1984). The pressure from westward-bound homesteaders, and the
belief that the Indians would benefit from private property
ownership, prompted passage of the Dawes Act in 1887, 24 Stat. 388.
The Dawes Act permitted the Federal Government to allot tracts of
tribal land to individual Indians and, with tribal consent, to open
the remaining holdings to non-Indian settlement. 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. See Hearings
on H. R. 7902 before the House Committee on Indian Affairs, 73d
Cong., 2d Sess., 428 (1934) (statement of D. S. Otis on the history
of the allotment policy). With respect to the Yankton Reservation
in particular, some Members of Congress speculated that "close
contact with the frugal, moral, and industrious people who will
settle [on the reservation] [would] stimulate individual effort and
make [the Tribe's] progress much
336
more rapid than heretofore." Report of the Senate Committee on
Indian Affairs, S. Rep. No. 196, 53d Cong., 2d Sess., 1 (1894).
In accordance with the Dawes Act, each member of the Yankton
Tribe received a 160-acre tract from the existing reservation, held
in trust by the United States for 25 years. Members of the Tribe
acquired parcels of land throughout the 1858 reservation, although
many of the allotments were clustered in the southern part, near
the Missouri River. By 1890, the allotting agent had apportioned
167,325 acres of reservation land, 95,000 additional acres were
subsequently allotted under the Act of February 28, 1891, 26 Stat.
795, and a small amount of acreage was reserved for government and
religious purposes. The surplus amounted to approximately 168,000
acres of unallotted lands. See Letter, at 5.
In 1892, the Secretary of the Interior dispatched a threemember
Yankton Indian Commission to Greenwood, South Dakota, to negotiate
for the acquisition of these surplus lands. See Act of July 13,
1892, 27 Stat. 137 (appropriating funds to enable the Secretary to
"negotiate with any Indians for the surrender of portions of their
respective reservations"). When the Commissioners arrived on the
reservation in October 1892, they informed the Tribe that they had
been sent by the "Great Father" to discuss the cession of "this
land that [members of the Tribe] hold in common," Council of the
Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doc. No.
27, at 48, and they abruptly encountered opposition to the sale
from traditionalist tribal leaders. See Report of the Yankton
Indian Commission (Mar. 31, 1893), reprinted in S. Exec. Doc. No.
27, at 9-11 (hereinafter Report). In the lengthy negotiations that
followed, members of the Tribe raised concerns about the suggested
price per acre, the preservation of their annuities under the 1858
Treaty, and other outstanding claims against the United States, but
they did not discuss the future boundaries of the
337
reservation. Once the Commissioners garnered a measure of
support for the sale of the unallotted lands, they submitted a
proposed agreement to the Tribe.1
1 The text of the agreement provides in relevant part:
"Article I.
"The Yankton tribe of Dakota or Sioux Indians hereby cede, sell,
relinquish, and convey to the United States all their claim, right,
title, and interest in and to all the unallotted lands within the
limits of the reservation set apart to said Indians as
aforesaid.
"Article II.
"In consideration for the lands ceded, sold, relinquished, and
conveyed to the United States as aforesaid, the United States
stipulates and agrees to pay to the said Yankton tribe of Sioux
Indians the sum of six hundred thousand dollars ($600,000), as
hereinbefore provided for.
"Article VII.
"In addition to the stipulations in the preceding articles, upon
the ratification of this agreement by Congress, the United States
shall pay to the Yankton tribe of Sioux Indians as follows: To each
person whose name is signed to this agreement and to each other
male member of the tribe who is eighteen years old or older at the
date of this agreement, twenty dollars ($20) in one double eagle,
struck in the year 1892 as a memorial of this agreement ....
"Article VIII.
"Such part of the surplus lands hereby ceded and sold to the
United States as may now be occupied by the United States for
agency, schools, and other purposes, shall be reserved from sale to
settlers until they are no longer required for such purposes. But
all other lands included in this sale shall, immediately after the
ratification of this agreement by Congress, be offered for sale
through the proper land office, to be disposed of under the
existing land laws of the United States, to actual bona fide
settlers only.
"Article XV.
"The claim of fifty-one Yankton Sioux Indians, who were employed
as scouts by General Alf. Sully in 1864, for additional
compensation at the rate of two hundred and twenty-five dollars
($225) each, aggregating the sum of eleven thousand four hundred
and seventy-five dollars ($11,475) is hereby recognized as just,
and within ninety days (90) after the ratification
338
Article I of the agreement provided that the Tribe would "cede,
sell, relinquish, and convey to the United States" all of the
unallotted lands on the reservation. Pursuant to Article II, the
United States agreed to compensate the Tribe in a single payment of
$600,000, which amounted to $3.60 per acre.2 Much of the agreement
focused on the payment and disposition of that sum. Article VII
further provided that all the signatories and adult male members of
the Tribe would receive a $20 gold piece to commemorate the
agreement. Some members of the Tribe also sought unpaid wages from
their service as scouts in the Sioux War, and in Article XV; the
United States recognized their claim. The saving clause in Article
XVIII, the core of the current disagreement between the parties to
this case, stated that noth-
of this agreement by Congress the same shall be paid in lawful
money of the United States to the said scouts or to their
heirs.
"Article XVII.
"No intoxicating liquors nor other intoxicants shall ever be
sold or given away upon any of the lands by this agreement ceded
and sold to the United States, nor upon any other lands within or
comprising the reservations of the Yankton Sioux or Dakota Indians
as described in the treaty between the said Indians and the United
States, dated April 19th, 1858, and as afterwards surveyed and set
off to the said Indians. The penalty for the violation of this
provision shall be such as Congress may prescribe in the act
ratifying this agreement.
"Article XVIII.
"Nothing in this agreement shall be construed to abrogate the
treaty of April 19th, 1858, between the Yankton tribe of Sioux
Indians and the United States. And after the signing of this
agreement, and its ratification by Congress, all provisions of the
said treaty of April 19th, 1858, shall be in full force and effect,
the same as though this agreement had not been made, and the said
Yankton Indians shall continue to receive their annuities under the
said treaty of April 19th, 1858." 28 Stat. 314-318.
2 In 1980, the Court of Claims concluded that the land ceded by
the Tribe had a fair market value of $6.65 per acre, or
$1,337,381.50, that the $600,000 paid pursuant to the 1892
agreement was "unconscionable and grossly inadequate," and that the
Tribe was entitled to recover the difference.
Yankton Sioux
Tribe v.
United States, 623 F.2d
159, 178.
339
ing in the agreement's terms "shall be construed to abrogate the
treaty [of 1858]" and that "all provisions of the said treaty ...
shall be in full force and effect, the same as though this
agreement had not been made."
By March 1893, the Commissioners had collected signatures from
255 of the 458 male members of the Tribe eligible to vote, and thus
obtained the requisite majority endorsement. The Yankton Indian
Commission filed its report in May 1893, but congressional
consideration was delayed by an investigation into allegations of
fraud in the procurement of signatures. On August 15, 1894,
Congress finally ratified the 1892 agreement, together with similar
surplus land sale agreements between the United States and the
Siletz and Nez Perce Tribes. Act of Aug. 15, 1894, 28 Stat. 286.
The 1894 Act incorporated the 1892 agreement in its entirety and
appropriated the necessary funds to compensate the Tribe for the
ceded lands, to satisfy the claims for scout pay, and to award the
commemorative $20 gold pieces. Congress also prescribed the
punishment for violating a liquor prohibition included in the
agreement and reserved certain sections in each township for
common-school purposes.
Ibid.
President Cleveland issued a proclamation opening the ceded
lands to settlement as of May 21,1895, and non-Indians rapidly
acquired them. By the turn of the century, 90 percent of the
unallotted tracts had been settled. See
Yankton Sioux Tribe
v.
United States, 623 F.2d
159, 171 (Ct. Cl. 1980). A majority of the individual
allotments granted to members of the Tribe also were subsequently
conveyed in fee by the members to non-Indians. Today, the total
Indian holdings in the region consist of approximately 30,000 acres
of allotted land and 6,000 acres of tribal land. Indian
Reservations: A State and Federal Handbook 260 (1986).
Although formally repudiated with the passage of the Indian
Reorganization Act in 1934, 48 Stat. 984, 25 U. S. C. § 461, the
policy favoring assimilation of Indian tribes through the allotment
of reservation land left behind a last-
340
ing legacy. The conflict between the modern-day approach to
tribal self-determination and the assimilation impetus of the
allotment era has engendered "a spate of jurisdictional disputes
between state and federal officials as to which sovereign has
authority over lands that were opened by the [surplus land] Acts
and have since passed out of Indian ownership."
Solem, 465
U. S., at 467.
B
We confront such a dispute in the instant case, in which tribal,
federal, and state officials disagree as to the environmental
regulations applicable to a proposed waste site. In February 1992,
several South Dakota counties formed the Southern Missouri
Recycling and Waste Management District (hereinafter Waste
District) for the purpose of constructing a municipal solid waste
disposal facility. The Waste District acquired the site for the
landfill, which falls within the 1858 boundaries of the Yankton
Sioux Reservation, in fee from a non-Indian. The predicate for the
parties' claims in this case is that the waste site lies on land
ceded in the 1894 Act, and the record supports that assumption.
In the Tribe's complaint, the proposed landfill is described as
"the south one-half north one-quarter (S% N'i4), Section 6,
Township 96 North, Range 65 West (S6, T96N, R65W) of the Fifth
Principal Meridan
[sic], Charles Mix County, South Dakota."
App. 24. That description corresponds to the account of a tract of
land deeded to Lars K. Langeland under the Homestead Act in 1904.
See App. to Brief for Respondent Southern Missouri Waste Management
District 1a-2a. Because all of the land allotted to individual
Indians on the Yankton Reservation was inalienable, pursuant to the
Dawes Act, during a 25-year trust period, the tract acquired by a
homesteader in 1904 and currently owned by the Waste District must
consist of unallotted land ceded in the 1894 Act. (The Dawes Act
was amended in 1906 by the Burke Act, 34 Stat. 182, 25 U. S. C. §
349, which permitted the issuance of
341
some fee-simple patents before the expiration of the 25-year
trust period, but the restrictions on alienation remained in place
as of 1904.)
When the Waste District sought a state permit for the landfill,
the Yankton Tribe intervened and objected on environmental grounds,
arguing that the proposed compacted clay liner was inadequate to
prevent leakage. After an administrative hearing in December 1993,
the State Board of Minerals and the Environment granted the solid
waste permit, finding that South Dakota regulations did not require
the installation of the synthetic composite liner the Tribe had
requested. The Sixth Judicial Circuit affirmed the Board's
decision, and no appeal was taken to the State Supreme Court.
In September 1994, the Tribe filed suit in the Federal District
Court for the District of South Dakota to enjoin construction of
the landfill, and the Waste District joined South Dakota as a third
party so that the State could defend its jurisdiction to grant the
permit. The Tribe also sought a declaratory judgment that the
permit did not comport with Federal Environmental Protection Agency
(EP A) regulations mandating the installation of a composite liner
in the landfill. See 40 CFR § 258.40(b) (1997). The District Court
held, in accordance with our decision in
South Dakota v.
Bourland, 508
U. S. 679, 692 (1993), that the Tribe itself could not assert
regulatory jurisdiction over the non-Indian activity on fee lands.
Furthermore, because the Tribe did not establish that the landfill
would compromise the "political integrity, the economic security,
or the health or welfare of the tribe," the court concluded that
the Tribe could not invoke its inherent sovereignty under the
exceptions in
Montana v.
United States,
450 U. S. 544,
566 (1981). Accordingly, the court declined to enjoin the landfill
project, a decision the Tribe does not appeal. The District Court
also determined, however, that the 1894 Act did not diminish the
exterior boundaries of the reservation as delineated in the
1858
342
Treaty between the United States and the Tribe, and consequently
that the waste site lies within an Indian reservation where federal
environmental regulations apply.
On appeal by the State,3 a divided panel of the Court of Appeals
for the Eighth Circuit agreed that "Congress intended by its 1894
Act that the Yankton Sioux sell their surplus land to the
government, but not their governmental authority over it."
99 F.3d
1439, 1457 (1996). The court relied primarily on the saving
clause in Article XVIII, reasoning that, given its "unusually
expansive language," other sections of the 1894 Act "should be read
narrowly to minimize any conflict with the 1858 treaty."
Id., at 1447. The court further concluded that neither the
historical evidence nor the demographic development of the area
could sustain a finding of diminishment.
Id., at 1457.
We granted certiorari to resolve a conflict between the decision
of the Court of Appeals and a number of decisions of the South
Dakota Supreme Court declaring that the reservation has been
diminished.4 520 U. S. 1263 (1997). We now reverse the Eighth
Circuit's decision and hold that the unallotted lands ceded as a
result of the 1894 Act did not retain reservation status.
3 The Waste District explains that it did not appeal because the
District Court's decision allowed it to go forward with
construction of the proposed landfill, but it filed a brief as a
respondent supporting the petitioner State in this Court because
"of the likelihood that the assertion of tribal jurisdiction will
continue to affect the District in this or similar contexts." Brief
for Respondent Southern Missouri Waste Management District 6, n. 6.
With respect to the particular issue of the landfill's liner, the
Waste District's concerns appear academic. The EPA has waived the
requirement of a composite liner and has permitted construction to
go forward with the compacted clay liner. See
Yankton Sioux
Tribe v.
Environmental Protection Agency, 950 F. Supp.
1471, 1482 (SD 1996).
4 See
State v.
Greger, 559 N. W. 2d 854 (S. D.
1997); see also
State v.
Thompson, 355 N. W. 2d 349, 350 (S. D. 1984);
State v.
Williamson, 87 S. D. 512, 515, 211 N. W. 2d
182, 184 (1973);
Wood v.
Jameson, 81 S. D. 12, 18-19,
130 N. W. 2d 95, 99 (1964).
343
II
States acquired primary jurisdiction over unallotted opened
lands where "the applicable surplus land Act freed that land of its
reservation status and thereby diminished the reservation
boundaries."
Solem, 465 U. S., at 467. In contrast, if a
surplus land Act "simply offered non-Indians the opportunity to
purchase land within established reservation boundaries,"
id., at 470, then the entire opened area remained Indian
country. Our touchstone to determine whether a given statute
diminished or retained reservation boundaries is congressional
purpose. See
Rosebud Sioux Tribe v.
Kneip, 430 U. S. 584, 615
(1977). Congress possesses plenary power over Indian affairs,
including the power to modify or eliminate tribal rights. See,
e. g., Santa Clara Pueblo v.
Martinez, 436 U. S. 49, 56 (1978).
Accordingly, only Congress can alter the terms of an Indian treaty
by diminishing a reservation,
United States v.
Celestine, 215
U. S. 278, 285 (1909), and its intent to do so must be "clear
and plain,"
United States v.
Dion, 476 U. S. 734, 738-739
(1986).
Here, we must determine whether Congress intended by the 1894
Act to modify the reservation set aside for the Yankton Tribe in
the 1858 Treaty. Our inquiry is informed by the understanding that,
at the turn of this century, Congress did not view the distinction
between acquiring Indian property and assuming jurisdiction over
Indian territory as a critical one, in part because "[t]he notion
that reservation status of Indian lands might not be coextensive
with tribal ownership was unfamiliar,"
Solem, 465 U. S., at
468, and in part because Congress then assumed that the reservation
system would fade over time. "Given this expectation, Congress
naturally failed to be meticulous in clarifying whether a
particular piece of legislation formally sliced a certain parcel of
land off one reservation."
Ibid.; see also
Hagen v.
Utah, 510 U.
S. 399, 426 (1994) (Blackmun, J., dissenting) ("As a result of
the patina history has placed on the allotment
344
Acts, the Court is presented with questions that their
architects could not have foreseen"). Thus, although "[t]he most
probative evidence of diminishment is, of course, the statutory
language used to open the Indian lands," we have held that we will
also consider "the historical context surrounding the passage of
the surplus land Acts," and, to a lesser extent, the subsequent
treatment of the area in question and the pattern of settlement
there.
Id., at 411. Throughout this inquiry, "we resolve any
ambiguities in favor of the Indians, and we will not lightly find
diminishment."
Ibid.
A
Article I of the 1894 Act provides that the Tribe will "cede,
sell, relinquish, and convey to the United States all their claim,
right, title, and interest in and to all the unallotted lands
within the limits of the reservation"; pursuant to Article II, the
United States pledges a fixed payment of $600,000 in return. This
"cession" and "sum certain" language is "precisely suited" to
terminating reservation status. See
DeCoteau, 420 U. S., at
445. Indeed, we have held that when a surplus land Act contains
both explicit language of cession, evidencing "the present and
total surrender of all tribal interests," and a provision for a
fixed-sum payment, representing "an unconditional commitment from
Congress to compensate the Indian tribe for its opened land," a
"nearly conclusive," or "almost insurmountable," presumption of
diminishment arises.
Solem, supra, at 470; see also
Hagen, supra, at 411.
The terms of the 1894 Act parallel the language that this Court
found terminated the Lake Traverse Indian Reservation in
DeCoteau, supra, at 445, and, as in
DeCoteau, the
1894 Act ratified a negotiated agreement supported by a majority of
the Tribe. Moreover, the Act we construe here more clearly
indicates diminishment than did the surplus land Act at issue in
Hagen, which we concluded diminished reservation lands even
though it provided only that "all the
345
unallotted lands within said reservation shall be restored to
the public domain." See 510 U. S., at 412.
The 1894 Act is also readily distinguishable from surplus land
Acts that the Court has interpreted as maintaining reservation
boundaries. In both
Seymour v.
Superintendent of Wash.
State Penitentiary, 368 U. S. 351, 355
(1962), and
Mattz v.
Arnett, 412 U. S. 481, 501-502
(1973), we held that Acts declaring surplus land "subject to
settlement, entry, and purchase," without more, did not evince
congressional intent to diminish the reservations. Likewise, in
Solem, we did not read a phrase authorizing the Secretary of
the Interior to "sell and dispose" of surplus lands belonging to
the Cheyenne River Sioux as language of cession. See 465 U. S., at
472. In contrast, the 1894 Act at issue here-a negotiated agreement
providing for the total surrender of tribal claims in exchange for
a fixed payment-bears the hallmarks of congressional intent to
diminish a reservation.
B
The Yankton Tribe and the United States, appearing as
amicus for the Tribe, rest their argument against
diminishment primarily on the saving clause in Article XVIII of the
1894 Act. The Tribe asserts that because that clause purported to
conserve the provisions of the 1858 Treaty, the existing
reservation boundaries were maintained. The United States urges a
similarly "holistic" construction of the agreement, which would
presume that the parties intended to modify the 1858 Treaty only
insofar as necessary to open the surplus lands for settlement,
without fundamentally altering the treaty's terms.
Such a literal construction of the saving clause, as the South
Dakota Supreme Court noted in
State v.
Greger, 559 N.
W. 2d 854, 863 (1997), would "impugn the entire sale." The
unconditional relinquishment of the Tribe's territory for
settlement by non-Indian homesteaders can by no means be reconciled
with the central provisions of the 1858 Treaty,
346
which recognized the reservation as the Tribe's "permanent" home
and prohibited white settlement there. See
Oregon Dept. of Fish
and Wildlife v.
Klamath Tribe, 473 U. S. 753, 770 (1985)
(discounting a saving clause on the basis of a "glaring
inconsistency" between the original treaty and the subsequent
agreement). Moreover, the Government's contention that the Tribe
intended to cede some property but maintain the entire reservation
as its territory contradicts the common understanding of the time:
that tribal ownership was a critical component of reservation
status. See
Solem, supra, at 468. We "cannot ignore plain
language that, viewed in historical context and given a fair
appraisal, clearly runs counter to a tribe's later claims."
Klamath, supra, at 774 (internal quotation marks and
citation omitted).
Rather than read the saving clause in a manner that eviscerates
the agreement in which it appears, we give it a "sensible
construction" that avoids this "absurd conclusion." See
United
States v.
Granderson, 511 U. S. 39, 56 (1994)
(internal quotation marks omitted). The most plausible
interpretation of Article XVIII revolves around the annuities in
the form of cash, guns, ammunition, food, and clothing that the
Tribe was to receive in exchange for its aboriginal claims for 50
years after the 1858 Treaty. Along with the proposed sale price,
these annuities and other unrealized Yankton claims dominated the
1892 negotiations between the Commissioners and the Tribe. The
tribal historian testified, before the District Court, that the
loss of their rations would have been "disastrous" to the Tribe,
App. 589, and members of the Tribe clearly perceived a threat to
the annuities. At a particularly tense point in the negotiations,
when the tide seemed to turn in favor of forces opposing the sale,
Commissioner John J. Cole warned:
"I want you to understand that you are absolutely dependent upon
the Great Father to-day for a living. Let the Government send out
instructions to your agent to cease to issue these rations, let the
Government instruct
347
your agent to cease to issue your clothes .... Let the
Government instruct him to cease to issue your supplies, let him
take away the money to run your schools with, and I want to know
what you would do. Everything you are wearing and eating is
gratuity. Take all this away and throw this people wholly upon
their own responsibility to take care of themselves, and what would
be the result? Not one-fourth of your people could live through the
winter, and when the grass grows again it would be nourished by the
dust of all the balance of your noble tribe." Council of the
Yankton Indians (Dec. 10, 1892), transcribed in S. Exec. Doc. No.
27, at 74.
Given the Tribe's evident concern with reaffirmance of the
Government's obligations under the 1858 Treaty, and the
Commissioners' tendency to wield the payments as an inducement to
sign the agreement, we conclude that the saving clause pertains to
the continuance of annuities, not the 1858 borders.
The language in Article XVIII specifically ensuring that the
"Yankton Indians shall continue to receive their annuities under
the [1858 Treaty]" underscores the limited purpose and scope of the
saving clause. It is true that the Court avoids interpreting
statutes in a way that "renders some words altogether redundant."
Gustafson v.
Alloyd Co., 513 U. S. 561, 574 (1995).
But in light of the fact that the record of the negotiations
between the Commissioners and the Yankton Tribe contains no
discussion of the preservation of the 1858 boundaries but many
references to the Government's failure to fulfill earlier promises,
see,
e. g., Council of the Yankton Indians (Dec. 3,
1892), transcribed in S. Exec. Doc. No. 27, at 54-55, it seems most
likely that the parties inserted and understood Article XVIII,
including both the general statement regarding the force of the
1858 Treaty and the particular provision that payments would
continue as specified therein, to assuage the Tribes' concerns
about their past claims and future entitlements.
348
Indeed, apart from the pledge to pay annuities, it is hard to
identify any provision in the 1858 Treaty that the Tribe might have
sought to preserve, other than those plainly inconsistent with or
expressly included in the 1894 Act. The Government points to
Article XI of the treaty, in which the Tribe agreed to submit for
federal resolution "all matters of dispute and difficulty between
themselves and other Indians," 11 Stat. 747, and urges us to
extrapolate from this provision that the Tribe implicitly retained
jurisdiction over internal matters, and from there to apply the
standard canon of Indian law that "[o]nce powers of tribal
self-government or other Indian rights are shown to exist, by
treaty or otherwise, later federal action which might arguably
abridge them is construed narrowly in favor of retaining Indian
rights." F. Cohen, Handbook of Federal Indian Law 224 (1982)
(hereinafter Cohen). But the treaty's reference to tribal authority
is indirect, at best, and it does not persuade us to view the
saving clause as an agreement to maintain exclusive tribal
governance within the original reservation boundaries.
The Tribe further contends that because Article XVIII affirms
that the 1858 Treaty will govern "the same as though [the 1892
agreement] had not been made," without reference to consistency
between those agreements, it has more force than the standard
saving clause. While the language of the saving clause is indeed
unusual, we do not think it is meaningfully distinct from the
saving clauses that have failed to move this Court to find that
pre-existing treaties remain in effect under comparable
circumstances. See,
e. g., Klamath, 473 U. S.,
at 769-770;
Montana, 450 U. S., at 548, 558-559;
Rosebud, 430 U. S., at 623 (Marshall, J., dissenting).
Furthermore, "it is a commonplace of statutory construction that
the specific" cession and sum certain language in Articles I and II
"governs the general" terms of the saving clause. See
Morales v.
Trans World Airlines, Inc., 504 U. S. 374, 384
(1992).
349
Finally, the Tribe argues that, at a minimum, the saving clause
renders the statute equivocal, and that confronted with that
ambiguity we must adopt the reading that favors the Tribe. See
Carpenter v.
Shaw, 280 U. S. 363, 367
(1930). The principle according to which ambiguities are resolved
to the benefit of Indian tribes is not, however, "a license to
disregard clear expressions of tribal and congressional intent."
DeCoteau, 420 U. S., at 447; see also
South Carolina
v.
Catawba Tribe, Inc., 476 U. S. 498,506 (1986).
In previous decisions, this Court has recognized that the precise
cession and sum certain language contained in the 1894 Act plainly
indicates diminishment, and a reasonable interpretation of the
saving clause does not conflict with a like conclusion in this
case.
C
Both the State and the Tribe seek support for their respective
positions in two other provisions of the 1894 Act: a clause
reserving sections of each township for schools and a prohibition
on liquor within the ceded lands. Upon ratification, Congress added
that "the sixteenth and thirty-sixth sections in each Congressional
township ... shall be reserved for common-school purposes and be
subject to the laws of the State of South Dakota." 28 Stat. 319.
This "school sections clause" parallels the enabling Act admitting
South Dakota to the Union, which grants the State sections 16 and
36 in every township for the support of common schools, but
expressly exempts reservation land "until the reservation shall
have been extinguished and such lands restored to ... the public
domain." Act of Feb. 22, 1889, 25 Stat. 679. When considering a
similar provision included in the Act ceding the Rosebud Sioux
Reservation in South Dakota, the Court discerned congressional
intent to diminish the reservation, "thereby making the sections
available for disposition to the State of South Dakota for 'school
sections.'"
Rosebud, supra, at 60l. The Tribe argues that
the clause in the 1894 Act specifying the application of state law
would be superfluous if Congress
350
intended to diminish the reservation. As the Court stated in
DeCoteau, however, "the natural inference would be that
state law is to govern the manner in which the 16th and 36th
sections are to be employed 'for common school purposes,'" which
"implies nothing about the presence or absence of state civil and
criminal jurisdiction over the remainder of the ceded lands." 420
U. S., at 446, n. 33.
Although we agree with the State that the school sections clause
reinforces the view that Congress intended to extinguish the
reservation status of the unallotted land, a somewhat contradictory
provision counsels against finding the reservation terminated.
Article VIII of the 1894 Act reserved from sale those surplus lands
"as may now be occupied by the United States for agency, schools,
and other purposes." In
Solem, the Court noted with respect
to virtually identical language that "[i]t is difficult to imagine
why Congress would have reserved lands for such purposes if it did
not anticipate that the opened area would remain part of the
reservation." 465 U. S., at 474.
The State's position is more persuasively supported by the
liquor prohibition included in Article XVII of the agreement. The
provision prohibits the sale or offering of "intoxicating liquors"
on "any of the lands by this agreement ceded and sold to the United
States" or "any other lands within or comprising the reservations
of the Yankton Sioux or Dakota Indians as described in the [1858]
treaty," 28 Stat. 318, thus signaling a jurisdictional distinction
between reservation and ceded land. The Commissioners' report
recommends that Congress "fix a penalty for the violation of this
provision which will make it most effective in preventing the
introduction of intoxicants within the limits of the reservation,"
Report, at 21, which could be read to suggest that ceded lands
remained part of the reservation. We conclude, however, that "the
most reasonable inference from the inclusion of this provision is
that Congress was aware that the opened, unallotted areas would
henceforth not be 'Indian
351
country.'"
Rosebud, supra, at 613. By 1892, Congress
already had enacted laws prohibiting alcohol on Indian
reservations, see Cohen 306-307, and "[w]e assume that Congress is
aware of existing law when it passes legislation,"
Miles v.
Apex Marine Corp., 498 U. S. 19, 32 (1990).
Furthermore, the Commissioner of Indian Affairs described the
provision as prohibiting "the sale or disposition of intoxicants
upon any of the lands
now within the Yankton Reservation,"
Letter, at 6-7 (emphasis added), indicating that the lands would be
severed from the reservation upon ratification of the agreement. In
Perrin v.
United States, 232 U. S. 478 (1914), we
implied that the lands conveyed by the 1894 Act lost their
reservation status when we construed Article XVII as applying to
"ceded lands formerly included in the Yankton Sioux Indian
Reservation."
Id., at 480. We now reaffirm that the terms of
the 1894 Act, including both the explicit language of cession and
the surrounding provisions, attest to Congress' intent to diminish
the Yankton Reservation.
III
Although we perceive congressional intent to diminish the
reservation in the plain statutory language, we also take note of
the contemporary historical context, subsequent congressional and
administrative references to the reservation, and demographic
trends. Even in the absence of a clear expression of congressional
purpose in the text of a surplus land Act, unequivocal evidence
derived from the surrounding circumstances may support the
conclusion that a reservation has been diminished. See
Solem, 465 U. S., at 471. In this case, although the context
of the Act is not so compelling that, standing alone, it would
indicate diminishment, neither does it rebut the "almost
insurmountable presumption" that arises from the statute's plain
terms.
Id., at 470.
A
The "manner in which the transaction was negotiated" with the
Yankton Tribe and "the tenor of legislative Reports
352
presented to Congress" reveal a contemporaneous understanding
that the proposed legislation modified the reservation.
Id.,
at 471. In 1892, when the Commissioner of Indian Affairs appointed
the Yankton Commission, he charged its members to "negotiate with
the [Tribe] for the cession of their surplus lands" and noted that
the funds exchanged for the "relinquishment" of those lands would
provide a future income for the Tribe. Instructions to the Yankton
Indian Commission (July 27, 1892), reprinted in App. 98-99. The
negotiations themselves confirm the understanding that by
surrendering its interest in the unallotted lands, the Tribe would
alter the reservation's character. Commissioner J. C. Adams
informed members of the Tribe that once surplus lands were sold to
the "Great Father," the Tribe would "assist in making the laws
which will govern [members of the Tribe] as citizens of the State
and nation." Council of the Yankton Indians (Oct. 8, 1892),
transcribed in S. Exec. Doc. No. 27, at 48. In terms that strongly
suggest a reconception of the reservation, Commissioner Cole
admonished the Tribe:
"This reservation alone proclaims the old time and the old
conditions .... The tide of civilization is as resistless as the
tide of the ocean, and you have no choice but to accept it and live
according to its methods or be destroyed by it. To accept it
requires the sale of these surplus lands and the opening of this
reservation to white settlement.
"You were a great and powerful people when your abilities and
energies were directed in harmony with the conditions which
surrounded you, but the wave of civilization which swept over you
found you unprepared for the new conditions and you became weak.
... [Y]ou must accept the new life wholly. You must break down the
barriers and invite the white man with all the elements of
civilization, that your young men may have the same opportunities
under the new conditions that your fathers
353
had under the old." Council of the Yankton Indians (Dec. 17,
1892), transcribed id., at 81.
Cole's vivid language and entreaty to "break down the barriers"
are reminiscent of the "picturesque" statement that Congress would
"pull up the nails" holding down the outside boundary of the Uintah
Reservation, which we viewed as evidence of diminishment in
Hagen, 510 U. S., at 417.
Moreover, the Commissioners' report of the negotiations signaled
their understanding that the cession of the surplus lands dissolved
tribal governance of the 1858 reservation. They observed that "now
that [members of the Tribe] have been allotted their lands in
severalty and have sold their surplus land-the last property bond
which assisted to hold them together in their tribal interest and
estate-their tribal interests may be considered a thing of the
past." Report, at 19. And, in a March 1894 letter to the Chairman
of the Senate Committee on Indian Affairs, several Yankton chiefs
and members of the Tribe indicated that they concurred in such an
interpretation of the agreement's impact. The letter urged
congressional ratification of the agreement, explaining that the
signatories "want[ed] the laws of the United States and the State
that we live in to be recognized and observed," and that they did
not view it as desirable to "keep up the tribal relation ... as the
tribal relation on this reservation is an obstacle and hindrance to
the advancement of civilization." S. Misc. Doc. No. 134, 53d Cong.,
2d Sess., 1 (1894).
The legislative history itself adds little because Congress
considered the Siletz, Nez Perce, and Yankton surplus land sale
agreements at the same time, but the few relevant references from
the floor debates support a finding of diminishment. Some members
noted that the cessions would restore the surplus lands to the
"public domain," see 53 Congo Rec. 6425 (1894) (remarks of Rep.
McCrae);
id., at 6426 (remarks of Rep. Hermann), language
that indicates congressional intent to diminish a reservation, see
Hagen, supra, at 418;
354
Solem, 465 U. S., at 475. That same phrase appears in the
annual report of the Commissioner on Indian Affairs that was
released in September 1894, just after congressional ratification
of the agreement. See Annual Report of the Commissioner on Indian
Affairs 26 (Sept. 14, 1894), excerpted in App. 450-452 (noting that
under the Siletz, Nez Perce, and Yankton agreements, "some 880,000
acres of land will be restored to the public domain").
Finally, the Presidential Proclamation opening the lands to
settlement declared that the Tribe had "ceded, sold, relinquished,
and conveyed to the United States, all [its] claim, right, title,
and interest in and to all the unallotted lands within the limits
of the reservation set apart to said tribe by the first article [of
the 1858 Treaty]." Presidential Proclamation (May 16, 1895),
reprinted in App. 453. This Court has described substantially
similar language as "an unambiguous, contemporaneous, statement by
the Nation's Chief Executive, of a perceived disestablishment."
Rosebud, 430 U. S., at 602-603.
B
Despite the apparent contemporaneous understanding that the 1894
Act diminished the reservation, in the years since, both Congress
and the Executive Branch have described the reservation in
contradictory terms and treated the region in an inconsistent
manner. An 1896 statute, for example, refers to "homestead settlers
upon the Yankton Indian Reservation," 29 Stat. 16, while in a
Report included in the legislative history for that statute, the
Commissioner of Indian Affairs discusses the "former" reservation,
H. R. Rep. No. 100, 54th Cong., 1st Sess., 2 (1896). From the 1896
statutory reference to hearings on the Indian Gaming Regulatory Act
nearly a century later, Congress has occasionally, though not
invariably, referred to the "Yankton Sioux Reservation." 5
5 Hearings on Pub. L. 100-497, The Indian Gaming Regulatory Act
of 1988, before the Subcommittee on Native American Mfairs of the
House Committee on Natural Resources, 103d Cong., 2d Sess., 1
(1994) (held,
355
We have often observed, however, that "the views of a subsequent
Congress form a hazardous basis for inferring the intent of an
earlier one."
United States v.
Philadelphia Nat.
Bank, 374 U.
S. 321, 348-349 (1963). Likewise, the scores of administrative
documents and maps marshaled by the parties to support or
contradict diminishment have limited interpretive value.6 We need
not linger over whether the many references to the Yankton
Reservation in legislative
according to the record, at the Fort Randall Casino Hotel on the
"Yankton Sioux Reservation"); see,
e. g., 143 Congo
Rec. S9616 (Sept. 18, 1997) (discussion of the Marty Indian School
"located on the Yankton Sioux Reservation"); 135 Congo Rec. 1656
(1989) (description of the Lake AndesWagner project, which
irrigates "Indian-owned land located on the Yankton Sioux
Reservation"). But see 35 Stat. 808 (referring to land "on the
former Yankton Reservation").
6 See,
e. g., Exec. Order No. 5173 (Aug. 9, 1929)
(extending the trust period on the allotted lands "on the Yankton
Sioux Reservation"); Exec. Order No. 2363 (Apr. 30, 1916) (same);
Letter to Chairman, Committee on Indian Mfairs, from Secretary of
the Interior (Feb. 1, 1921), reprinted in App. 480 (stating that
"Lake Andes is within the former Yankton-Sioux Indian
Reservation"); Letter to Yankton Agency from the Commissioner of
Indian Affairs (Aug. 20, 1930), reprinted in App. 481 (discussing
lands "heretofore constituting a part of the reservation"); Bureau
of the Census, U. S. Dept. of Commerce, Pub. No. 1990 CPH-1-43, p.
175 (1991), reprinted in App. 527 (listing population figures for
the Yankton Reservation).
The Tribe also highlights a 1941 opinion letter issued by Felix
Cohen, then-acting Solicitor of the Department of the Interior, in
which he concluded that the Yankton Reservation had not been
altered by the 1894 Act because allotments were "scattered over all
the reservation," and the Act was thus distinguishable from
statutes that "ceded a definite part of the reservation and treated
the remaining areas as a diminished reservation." See Letter of
Aug. 7, 1941, reprinted in 1 U. S. Dept. of Interior, Opinions of
the Solicitor of the Department of the Interior Relating to Indian
Mfairs 1063, 1064 (1979). The letter has not been disavowed
but was apparently ignored in subsequent determinations by the
agency. A 1969 memorandum on tribal courts, for example, plainly
stated that the 1894 Act "diminish[ed] the area over which the
[Yankton] tribe might exercise its authority." Memorandum M-36783
from Associate Solicitor, Indian
Mfairs, to Commissioner of
Indian Affairs 1 (Sept. 10, 1969), reprinted in App.518.
356
and administrative materials utilized a convenient geographical
description or reflected a considered jurisdictional statement. The
mixed record we are presented with "reveals no consistent, or even
dominant, approach to the territory in question," and it "carries
but little force" in light of the strong textual and
contemporaneous evidence of diminishment.
Rosebud, supra, at
605, n. 27; see also
Solem, 465 U. S., at 478 (finding
subsequent treatment that was "rife with contradictions and
inconsistencies" to be "of no help to either side").
C
"Where non-Indian settlers flooded into the opened portion of a
reservation and the area has long since lost its Indian character,
we have acknowledged that
de facto, if not
de jure,
diminishment may have occurred."
Id., at 471. This final
consideration is the least compelling for a simple reason:
Every surplus land Act necessarily resulted in a surge of non-
Indian settlement and degraded the "Indian character" of the
reservation, yet we have repeatedly stated that not every surplus
land Act diminished the affected reservation. See
id., at
468-469. The fact that the Yankton population in the region
promptly and drastically declined after the 1894 Act does, however,
provide "one additional clue as to what Congress expected,"
id., at 472. Today, fewer than 10 percent of the 1858
reservation lands are in Indian hands, non-Indians constitute over
two-thirds of the population within the 1858 boundaries, and
several municipalities inside those boundaries have been
incorporated under South Dakota law. The opening of the tribal
casino in 1991 apparently reversed the population trend; the tribal
presence in the area has steadily increased in recent years, and
the advent of gaming has stimulated the local economy. In addition,
some acreage within the 1858 boundaries has reverted to tribal or
trust land. See H. Hoover, Yankton Sioux Tribal Land History
(1995), reprinted in App. 545-546. Nonetheless, the area remains
"predominantly populated by non-
357
Indians with only a few surviving pockets of Indian allotments,"
and those demographics signify a diminished reservation.
Solem,
supra, at 471, n. 12.
The State's assumption of jurisdiction over the territory,
almost immediately after the 1894 Act and continuing virtually
unchallenged to the present day, further reinforces our holding. As
the Court of Appeals acknowledged, South Dakota "has quite
consistently exercised various forms of governmental authority over
the opened lands," 99 F. 3d, at 1455, and the "tribe presented no
evidence that it has attempted until recently to exercise civil,
regulatory, or criminal jurisdiction over nontrust lands."
Id., at 1456. Finally, the Yankton Constitution, drafted in
1932 and amended in 1962, defines the Tribe's territory to include
only those tribal lands within the 1858 boundaries "now owned" by
the Tribe. Constitution and Bylaws of the Yankton Sioux Tribal
Business and Claims Committee, Art. VI, § 1.
IV
The allotment era has long since ended, and its guiding
philosophy has been repudiated. Tribal communities struggled but
endured, preserved their cultural roots, and remained, for the most
part, near their historic lands. But despite the present-day
understanding of a "governmentto-government relationship between
the United States and each Indian tribe," see,
e. g.,
25 U. S. C. § 3601, we must give effect to Congress' intent in
passing the 1894 Act. Here, as in
DeCoteau, we believe that
Congress spoke clearly, and although "[s]ome might wish [it] had
spoken differently, ... we cannot remake history." 420 U. S., at
449.
The 1894 Act contains the most certain statutory language,
evincing Congress' intent to diminish the Yankton Sioux Reservation
by providing for total cession and fixed compensation.
Contemporaneous historical evidence supports that conclusion, and
nothing in the ambiguous subsequent treatment of the region
substantially controverts our
358
reasoning. The conflicting understandings about the status of
the reservation, together with the fact that the Tribe continues to
own land in common, caution us, however, to limit our holding to
the narrow question presented: whether unallotted, ceded lands were
severed from the reservation. We need not determine whether
Congress disestablished the reservation altogether in order to
resolve this case, and accordingly decline to do so. Our holding in
Hagen was similarly limited, as was the State Supreme
Court's description of the Yankton reservation in
Greger.
See 510 U. S., at 421;
State v.
Greger, 559 N. W. 2d,
at 867.
***
In sum, we hold that Congress diminished the Yankton Sioux
Reservation in the 1894 Act, that the unallotted tracts no longer
constitute Indian country, and thus that the State has primary
jurisdiction over the waste site and other lands ceded under the
Act. Accordingly, we reverse the judgment of the Court of Appeals
for the Eighth Circuit and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
Comments
Be the first to comment
Leave a Comment