ELR Citation: ELR 20972
No(s). 91-2051 (U.S. Jun 14, 1993)

The court holds that Congress, through the Flood Control Act of 1944 (FCA) and the Cheyenne River Act of 1954 (CRA), abrogated the Cheyenne River Sioux Tribe's right to regulate non-Indian hunting and fishing on lands taken by the United States for construction of the Oahe Dam and Reservoir on the Missouri River in South Dakota. The FCA authorized a comprehensive flood control plan, including the construction of a series of dams and reservoirs on the Missouri River, and mandated that all water project lands be open for the general public's use and recreational enjoyment. One such dam and reservoir component of the plan was the Oahe Dam and Reservoir Project (Oahe Project) along the eastern border of the Cheyenne River Reservation, which is part of what was once the Great Sioux Reservation established by the 1868 Fort Laramie Treaty. In the CRA, the Cheyenne River Sioux Tribe conveyed all interests in 104,420 acres of former trust lands to the United States for construction of the Oahe Project. The CRA, however reserved to the tribe or tribal members the right of free access to the taken lands, including the right to hunt and fish, subject to regulations governing such uses by non-Indians. The United States also acquired an additional 18,000 acres of reservation land previously owned in fee by non-Indians under the FCA. Until 1988, the tribe enforced its game and fish regulations against all violators on tribal land appropriated for the Oahe Project, while South Dakota limited its enforcement to non-Indians. Subsequently, the tribe announced that it would no longer recognize state hunting licenses and South Dakota sought injunctive relief to prevent the tribe from excluding non-Indians from hunting on nontrust lands within the reservation, and in the alternative, a declaration that the federal taking of tribal lands for the Oahe Project had reduced the tribe's authority by withdrawing the lands from the reservation. The district court permanently enjoined the tribe from exerting hunting and fishing jurisdiction over non-Indians on the taken lands, ruling that the CRA abrogated the tribe's right under the original 1968 Fort Laramie Treaty to "absolute and undisturbed use and occupation" of its reservation. After the Eighth Circuit affirmed the district court's holding as to only the 18,000 acres of former fee lands held by non-Indians, but reversed the district court as to the 104,420 acres taken under the CRA, holding that the CRA did not clearly reveal Congress' intent to divest the tribe of its treaty right to do so, South Dakota brought this appeal.

The Court holds that Congress, in taking tribal trust lands and other reservation lands for the Oahe Project through the FCA and the CRA and broadly opening up those lands for public use, eliminated the tribe's power to exclude non-Indians from these lands and the incidental regulatory jurisdiction formerly enjoyed by the tribe. Under its original treaty with the United States, the Cheyenne River Tribe possessed both the power to exclude non-Indians from, and the lesser-included, incidental power to regulate non-Indian use of, the lands later taken for the Oahe Project. Supreme Court precedent, however, established that when an Indian tribe conveys ownership of its tribal lands to non-Indians, it loses any former right of absolute and exclusive use and occupation of the conveyed lands. Moreover, the abrogation of this greater right, implies the loss of regulatory jurisdiction over the use of the land by others. The effect of the FCA is to open the lands taken for the Oahe Project for the general and recreational use of the public. In addition, the CRA declares that the sum paid by the United States to the tribe "shall be final and complete settlement of all claims, rights, and demands" of the tribe or its allottees. The Court concludes that Congress' explicit reservation of certain rights in the lands taken for the Oahe Project does not operate as an implicit reservation of all former rights. When Congress reserves limited rights to a tribe or its members, the very presence of such a limited reservation of rights suggests that the Indians would otherwise be treated like the public at large.

The Court holds that the CRA's failure to itemize the amount for the tribe's loss of revenue from licensing hunting and fishing activities does not reserve to the tribe the right to regulate hunting and fishing. The CRA, rather, plainly states that the appropriated funds constitute a final and complete settlement. The Court holds that general principles of "inherent sovereignty" do not enable the tribe to regulate non-Indian hunting and fishing in the taken area. Although Indian tribes retain inherent authority to punish members who violate tribal law, to regulate tribal membership, and to conduct internal tribal relations, the exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. The Court concludes that Congress clearly abrogated the tribe's preexisting regulatory control over non-Indian hunting and fishing and no evidence in the relevant treaties or statutes exists that Congress intended to allow the tribe to assert regulatory jurisdiction over these lands under inherent sovereignty. The Court, however, leaves for remand the issue of whether any exceptions to the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe apply in this case.

Finally, the Court holds that although the United States as amicus curiae asserted at oral argument that regulations of the U.S. Army Corps of Engineers (Corps), which has jurisdiction over the project, leave all preexisting state, local, and tribal hunting and fishing regulations in effect on project lands, the United States did not mention that regulation in its brief and the Court declines to defer to the government's litigating position. Moreover, it is inconsistent with evidence in the record that the Corps in fact believed that jurisdiction over non-Indian hunting and fishing on water project lands is a matter of state law.

Two dissenting Supreme Court Justices would hold that Congress, through the FCA and the CRA, did not expressly divest the tribe of its authority to regulate hunting and fishing on the taken lands, and that right is thus, inherently retained. There is no evidence in either the FCA or the CRA that Congress even considered the possibility that by taking the land it would deprive the tribe of its authority to regulate non-Indian hunting and fishing on the taken land. The purpose of the FCA was to build a dam and reservoir, and the majority's implicit finding that Congress intended to deprive the tribe of its right to exclusive use of the land, that Congress gave the Corps authority to regulate public access to the land, and that Congress failed to explicitly reserve to the tribe the right to regulate non-Indian hunting and fishing, is contrary to the principle of inherent sovereignty. Congress' failure to address the subject means that the tribe's authority survives and not the reverse.

Counsel for Petitioner
Mark W. Barnett, Ass't Attorney General
Attorney General's Office
500 E. Capitol St., Pierre SD 57501
(605) 773-3215

Counsel for Respondent
Scott B. McElroy
Native American Indian Rights
1007 Pearle St., Ste. 240, Boulder CO 80302
(303) 442-2021