No. 96-1692

 

Lower Brule Sioux Tribe; *

*

Appellant; *

*

v. * Appeal from the United States

* District Court for the

State of South Dakota; John * District of South Dakota.

Cooper, Secretary, Division *

of Game, Fish & Parks for the *

State of South Dakota; *

*

Appelles. *

 

Submitted: October 24, 1996

 Filed: January 9, 1997

 

Before BOWMAN, HEANEY, and BEAM, Circuit Judges.

 

 HEANEY, Circuit Judge.

This case involves a long-standing dispute between the Lower Brule

Sioux Tribe ("Tribe") and the State of South Dakota and the Secretary of

the State Game, Fish & Parks Division ("State") concerning regulatory

jurisdiction over hunting and fishing by nonmembers of the Tribe on

nonmember-owned fee lands and waters and taken areas within the boundaries

of the Lower Brule Sioux Reservation ("Reservation"). The Tribe brought

this action to enjoin the State from enforcing its hunting and fishing laws

over any person within the boundaries of the Reservation. The Tribe also

sought declaratory relief that the State is barred from exercising any

regulatory authority over hunting or fishing within the Reservation. Since

this litigation began in 1980, the Supreme Court has handed down several

important decisions relating to
2

Indian sovereignty and tribal regulatory authority on different land

classifications within Reservation boundries. Accordingly, the district

court determined that this action is substantially controlled by South

Dakota v. Bourland ("Bourland III"), 508 U.S. 679 (1993), rev'g, 949 F.2d

984 (8th Cir. 1991), Brendale v. Confederated Tribes & Bands of the Yakima

Indian Nation, 492 U.S. 408 (1989) (plurality), and Montana v. United

States, 450 U.S. 544 (1981). Following this line of authority, the

district court granted the State's motion for summary judgment. We agree

that this result follows Supreme Court precedent and affirm.

I.

This case began over sixteen years ago when the Tribe sought to

enjoin the State from enforcing its fish and wildlife regulations on fee

lands and taken lands within the boundaries of the Reservation and to

obtain a declaratory judgment that the Tribe has exclusive regulatory

jurisdiction over hunting and fishing by any person within Reservation

boundaries. In the first phase of the litigation, the district court

reserved ruling on matters pertaining to fee lands. With respect to lands

taken by the Army Corps of Engineers for flood control projects at Fort

Randall and Big Bend, the court held that the respective taking acts

diminished the Reservation thereby divesting the Tribe of jurisdiction over

even tribal members on those lands. Lower Brule Sioux Tribe v. South

Dakota ("Lower Brule I"), 540 F. Supp. 276, 292 (D.S.D. 1982). Our court

reversed, holding that the Tribe had exclusive jurisdiction to regulate

hunting and fishing by tribal members in the taken areas and remanding for

reconsideration of who has jurisdiction to regulate hunting and fishing by

nonmembers within the Fort Randall and Big Bend taken areas. Lower Brule

Sioux Tribe v. South Dakota ("Lower Brule II"), 711 F.2d 809, 813, 827 (8th

Cir. 1983). Before trial, however, the Tribe and the State entered into

a five-year cooperation agreement. Unfortunately, this agreement was not

renewed; and when it expired on October 24, 1991,
3

the Tribe brought this action to enjoin the State from enforcing its

hunting and fishing laws over any person on fee lands and taken lands

within the boundaries of the Reservation and to bar the State from

attempting to regulate hunting and fishing on those lands in the future.

The district court entered a preliminary injunction against the State on

November 13, 1991, in effect, continuing the terms of the expired five-year

agreement between the parties. After extensive discovery by both sides,

the State filed a motion for summary judgment on September 11, 1995. On

February 8, 1996, after the Tribe filed its second response to the motion,

the district court granted the State's motion for summary judgment. Lower

Brule Sioux Tribe v. South Dakota ("Lower Brule III"), 917 F. Supp. 1434,

1457 (D.S.D. 1996). Applying the analytical framework of Montana, Bourland

III, and Brendale, the court held (1) Congress has abrogated any treaty

rights that provided the Tribe with the authority to regulate hunting and

fishing by nonmembers on both fee lands and waters and in the taken areas;

(2) the Tribe's inherent sovereignty does not extend to the regulation of

hunting and fishing by nonmembers on fee or taken lands either by virtue

of a consensual relationship with the Tribe or because of a threat to the

political integrity, economic security, or health and welfare of the Tribe;

and (3) the State has exclusive jurisdiction to regulate nonmember hunting

and fishing within both the fee and taken areas at issue. The Tribe

appeals, arguing both that there are disputed material facts that make

summary judgment inappropriate and that the court erred as a matter of law

in determining that the State has exclusive jurisdiction to regulate

hunting and fishing on non-trust lands within the Reservation. 

II.

To provide some context for this dispute, we begin with a basic

history of the Lower Brule Sioux Reservation. A more comprehensive

background discussion, with particular detail about
4

the relevant treaties and taking acts, is contained in Lower Brule I, 540

F. Supp. at 278-86.

 The Fort Laramie Treaties of 1851, 11 Stat. 749 (1851), and 1868,

15 Stat 635 (1868), established the boundaries of the Great Sioux Nation.

See United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). The

Lower Brule Sioux Reservation was established as part of a March 2, 1890

act of Congress that divided the Great Sioux Nation into five smaller ones.

See 25 Stat. 888 (1889). The Reservation is situated in central South

Dakota in northeastern Lyman County and extends slightly into the

southeastern corner of Stanley County. The Reservation is bounded on the

northeast and east by the Missouri River. The original area of the

Reservation, which consisted of 446,500 acres, was twice diminished by

Congress: first by the Act of March 3, 1899, 30 Stat. 1362 (1899), and

second by the Act of April 21, 1906, 34 Stat. 124 (1906). The present

Reservation consists of approximately 235,800 acres. 

The two classifications of Reservation areas at issue in this

litigation are nonmember-owned fee lands and waters and the areas taken by

the Army Corps of Engineers for two flood control projects. Approximately

56,634 acres, or roughly one-quarter of the total Reservation land, is

deeded land held in fee by either members or nonmembers of the Tribe.

Under the Indian General Allotment Act, 24 Stat. 388 (1887), significant

portions of the Reservation were allotted to individual tribal members as

part of Congress's widespread attempt to disestablish reservations and to

force Indians to assimilate into the dominant white culture modeled on

individual property ownership. After a period of years during which the

allotments were held in trust, fee patents were issued. See id. at 398 §

5. Assisted by legislation aimed at opening the Reservation to non-Indian

development, see, e.g., 30 Stat. 1362 (1899), 34 Stat. 124 (1906),

piecemeal sales of fee lands up to the time of the Indian Reorganization

Act of 1934 created what is often called a "checkerboard" map of trust

lands, tribal lands, allotted
5

lands, and fee lands. The boundaries between the variously classified

lands are not marked, making it difficult for persons on the Reservation

to determine the ownership status of any given site. 

The other relevant land classification is land taken under the United

States' power of eminent domain for construction of two projects as part

of a comprehensive flood control plan for the Missouri River as authorized

by the Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (1944).

Two taking Acts established the territory now at issue: the Fort Randall

Taking Act, Pub. L. No. 85-923, 72 Stat. 1773 (1958), and the Big Bend

Taking Act, Pub. L. No. 87-734, 76 Stat. 698 (1962). Collectively, the

projects required the taking of 22,296 acres of Indian lands. Under the

terms of the Fort Randall Taking Act, the Tribe maintained the right to

graze stock on the land and a right of free access for members to hunt and

fish. According to the Big Bend Taking Act, the United States acquired the

"entire interest" of the Tribe, including gravel and any interest the Tribe

may have had within the bed of the Missouri River; the Tribe maintained the

right to graze on the land and free access for hunting and fishing.

III.

We review the district court's grant of summary judgment de novo,

applying the same standard as the district court. Lebus v. Northwestern

Mut. Life Ins. Co., 55 F.3d 1374, 1376 (8th Cir. 1995). Summary judgment

is appropriate if the movant demonstrates that there is no genuine issue

of material fact and that the movant is entitled to judgment as a matter

of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). As explained

by the district court:

[T]he facts and inferences from those facts are viewed in

the light most favorable to the nonmoving party and the

burden is placed on the moving party to establish both
 The Tribe raises numerous factual disputes which it believes 1

should have prevented the district court from issuing summary

judgment. After careful consideration of each of these claims, we

have determined that none are material to the resolution of the

issues presented in this case.

6

the absence of a genuine issue of material fact and that

such party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-90 (1986). Once

the moving party has met this burden, the nonmoving party

may not rest on the allegations in the pleadings, but by

affidavit or other evidence must set forth specific facts

showing that a genuine issue of material fact exists.

Id.

We must examine the evidence in the context of the legal issues

involved. Thus, it is not enough that there are factual disputes between

the parties, "the dispute[s] must be outcome determinative under prevailing

law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1992). We agree

with the district court that under existing precedent summary judgment is

appropriate to resolve this dispute. A careful review of the record,

including the Tribe's response to the State's motion for summary judgment

and response to the State's statement of material facts, reveals that to

the extent that the parties disagree on factual matters, none of the

disputes is outcome determinative once put in legal context. Thus, we

1

agree that the record presents no genuine issues of disputed material

facts.

IV.

Tribal jurisdiction to regulate hunting and fishing by nonmembers on

nonmember-owned fee lands and taken lands derives from either of two

sources: treaty rights or inherent tribal sovereignty. See Montana v.

United States, 450 U.S. 544, 556-58 (1981). We examine each source of

jurisdiction separately as it applies to the different land

classifications.
7

A. Fee Lands and Waters

1. Treaty Rights

Consistent with Supreme Court precedent, the district court held that

any right to regulate hunting and fishing by nonmembers on nonmember-owned

fee lands originally obtained by the Tribe under the Fort Laramie Treaty

of 1868 was abrogated by the Indian General Allotment Act of 1887. Lower

Brule III, 917 F. Supp at 1446. In 1868, the Fort Laramie Treaty gave the

Tribe the right of "absolute and undisturbed use and occupation" of

Reservation lands. 15 Stat. 636. This authority to exclude nonmembers

from the land also carried the lesser authority to regulate the activities

of nonmembers to whom the Tribe permitted access. See Montana, 450 U.S.

at 559; Bourland III, 508 U.S. at 688-89. Treaty rights obtained by the

Tribe under the Fort Laramie Treaty, however, were abrogated by Congress

with the passage of the General Indian Allotment Act of 1887. Brendale,

492 U.S. at 425; Montana, 450 U.S. at 559. As the Court explains:

Montana and Brendale establish 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. The abrogation of this

greater right . . . implies the loss of the regulatory

jurisdiction over the use of the lands by others.

Bourland III, 508 U.S. at 689. After the General Indian Allotment Act, the

Tribe no longer retains the exclusive use and benefit of the land, and

Congress did not expressly delegate authority to the Tribe to regulate

nonmember conduct on nonmember-owned fee lands. Therefore, whatever

regulatory power the Tribe has under the treaty no longer extends to lands

held in fee by nonmembers.
8

2. Inherent Sovereignty

Indian tribes have inherent sovereignty independent of treaty rights

and the authority derived from their power to exclude nonmembers from

tribal lands. Despite their dependence on the United States, tribes

generally retain sovereignty in the form of tribal self-governance and

control over other aspects of tribal internal affairs. See Montana, 450

U.S. at 564. A tribe's inherent sovereignty, however, is divested to the

extent that it is inconsistent with the tribes's dependent status, that is,

"to the extent it involves a tribe's 'external relations.'" Brendale, 492

U.S. at 425-26 (quoting United States v. Wheeler, 435 U.S. 313, 326

(1978)); see also Montana, 450 U.S. at 564 ("[E]xercise 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.").

In Montana, the Supreme Court recognized two possible exceptions to

the general rule that inherent sovereign powers of an Indian tribe do not

extend to the activities of nonmembers of the tribe. 450 U.S. at 565-66.

First, "[a] tribe may regulate . . . the activities of nonmembers who enter

consensual relationships with the tribe or its members, through commercial

dealing, contracts, leases or other arrangements." Id. at 565. Second,

a tribe may regulate conduct that "threatens or has some direct effect on

the political integrity, the economic security, or the health or welfare

of the tribe." Id. at 566. 

We agree with the district court that the first Montana exception is

inapplicable. Neither the original title deeds for the lands nor the

purchase of hunting and fishing licenses give rise to the requisite

consensual relationship between the Tribe and nonmembers who hunt and fish

on the fee lands. See South Dakota v.
 In its motion opposing summary judgment before the district 2

court the Tribe additionally argued that it was adversely impacted

by the lost job opportunities for its members who would perform

regulatory functions. The Tribe appears to have abandoned this

argument on appeal. Although we do not specifically address this

issue, we note that our decision would not be altered by the

inclusion of this claim. 

 The State asks us to adopt the more stringent standard set

3

forth in Justice White's plurality opinion in Brendale. In

Brendale, Justice White wrote that for an Indian tribe to retain

jurisdiction over nonmembers pursuant to the second Montana

exception, "[t]he impact [on tribal interests] must be demonstrably

serious and must imperil the political integrity, the economic

security, or the health and welfare of the tribe." Brendale, 492

U.S. at 431 (emphasis added); see also Bourland IV, 39 F.3d at 870

n.4. As in Bourland IV, we need not determine whether the Brendale

9

Bourland ("Bourland IV"), 39 F.3d 868, 869 (8th Cir. 1994); Montana, 450

U.S. at 566.

The Tribe also argues that the record supports a finding that, under

the second Montana exception, it retains the power to regulate hunting and

fishing by nonmembers on nonmember-owned fee lands because the conduct

affects the Tribe's economic, political, and social welfare. Specifically,

the Tribe asserts that state regulation will: (1) deprive the Tribe of

licensing revenues; (2) adversely affect game populations on trust lands;

and (3) cause confusion and discourage the use of the Reservation due to

the complexities of complying with separate laws in adjoining areas.2

While noting that these same factors were present in either or both Montana

and Bourland III and that the adverse impact was insufficient to establish

tribal jurisdiction, the district court conducted the necessary

"particularized inquiry into the unique facts and circumstances surrounding

the Lower Brule Reservation and the Lower Brule Tribe." Lower Brule III,

917 F. Supp. at 1447; see also Brendale, 492 U.S. at 428-30. The court

specifically took into account the Tribe's history, economy, and population

mix. Lower Brule III, 917 F. Supp. at 1447.

The court concluded that State regulation of nonmember hunting and

fishing does not threaten the political integrity, economic security, or

health and welfare of the Tribe. Id. at 1449. With 3
plurality opinion modified the second Montana exception. The

district court explicitly analyzed the Tribe's arguments under the

framework of Montana, avoiding the more stringent arguable

modification in Brendale. Lower Brule III, 917 F. Supp. at 1446.

We do the same. We note only that affirmance under the less

stringent standard as originally articulated in Montana necessarily

implies a failure to satisfy a more stringent application of the

exception. See Bourland IV, 39 F.3d at 870 n.4. 

10

respect to licensing fees, the court found that revenue from licensing

accounts for only a small fraction of the dollars spent by hunters and

fishers and that, in light of the economic strength of the Tribe, lost

revenues do not pose a significant threat to the economic security of the

Tribe. With respect to migrating game populations, the court acknowledged

that wildlife herds migrate throughout the Reservation and that nonmember

hunting on nonmember-owned fee lands will reduce the overall deer

population on tribal land to some extent. Yet, the court found no evidence

on the record to support a determination that the harvesting of deer on

nonmember fee lands threatened the overall welfare of the Tribe. See

Bourland IV, 39 F.3d at 870 (noting that incidents of deer harvesting by

nonmembers are "undeniably vexatious to the individual Indians affected"

but do not amount to a direct threat to the welfare of the Tribe as a

whole). For example, there is no evidence that a significant number of

tribal members depend on wild game for their sustenance or livelihood.

Finally, the court acknowledged that there are unmarked boundaries between

the various types of Reservation land and that separate laws enforced by

distinct governments on adjoining lands can create some confusion.

Nonetheless, the court recognized that the Supreme Court has authorized

exactly this kind of "checkerboard" jurisdiction by mandating that

neighboring lands be subject to different regulatory authorities. Lower

Brule III, 917 F. Supp. at 1448 (citing Bourland II, 949 F.2d at 996).
11

We hold that the district court did not err in its determination that

the Tribe failed to establish sufficient evidence to prevent summary

judgment on the jurisdictional issue over nonmember-owned fee lands and

waters. We also find no error in the court's conclusion that no principles

of federal Indian law preclude the State from lawfully exercising

jurisdiction over nonmembers on the fee lands and waters at issue. We

hasten to add, however, that the Tribe may seek relief in the district

court in the future if circumstances change in kind or degree so as to

directly affect or threaten the political integrity, economic security, or

health and welfare of the Tribe as a whole. See Bourland IV, 39 F.3d at

871. 

 

B. Taken Lands

Also at issue is jurisdiction over hunting and fishing by nonmembers

on lands and waters located in the Fort Randall and Big Bend taken areas

within the boundaries of the Reservation. The district court held that

Congress's exercise of eminent domain abrogated the Tribe's treaty rights

and that the Tribe's inherent sovereignty does not extend to the regulation

of hunting and fishing by nonmembers in the taken areas.

As the Supreme Court explains, "regardless of whether land is

conveyed pursuant to an Act of Congress for homesteading or for flood

control purposes, when Congress has broadly opened up such land to nonIndians, the effect of the transfer is the destruction of pre-existing

Indian rights to regulatory control." Bourland III, 508 U.S. at 692

(footnote omitted). Thus, it is necessary to look to the language of the

Acts which effectuated the takings. Section 1 of the Fort Randall Taking

Act, Pub. L. No. 85-923, 72 Stat. 1773, provides that the payments by the

United States to the Lower Brule Sioux Tribe were in "settlement of all

claims, rights, and demands of said tribe." Section 1 of the Big Bend

Taking Act, Pub. L. No. 87-734, 76 Stat. 698, is almost identical. Both
 Nor does the Tribe challenge the district court's conclusion 4

that neither Montana exception is applicable and, therefore, the

Tribe does not have inherent authority to regulate the hunting and

fishing by nonmembers on the taken lands.

12

provisions indicate that there was a mutual understanding between the

United States and the Tribe that the Acts set forth all of the terms of the

transaction and all the rights the Tribe would retain under the agreements.

 Section 5 of the Fort Randall Taking Act explicitly provides that the

Tribe retains two rights, without cost: first, to graze livestock and,

second, to hunt and fish in the taken area subject to the regulations

governing the corresponding use of the land by other United States

citizens. Similarly, Section 10 of the Big Bend Taking Act reserves for

the Tribe and its individual members the right to hunt and fish on the

taken area subject to the laws applicable to other citizens doing the same.

The provisions set out above are almost identical to Sections 2 and

10 of the Cheyenne River Act, 68 Stat. 1191 (1954) (taking land for the

Oahe Dam and Reservoir project in furtherance of the Flood Control Act of

1944), construed by the Supreme Court in Bourland III. In that case the

Court concluded, "Congress, through the Flood Control and Cheyenne River

Acts eliminated the Tribe's power to exclude non-Indians from these lands,

and with that the incidental regulatory jurisdiction formerly enjoyed by

the Tribe [pursuant to the Fort Laramie Treaty of 1868]." Bourland III,

508 U.S. at 689. Similarly, the Fort Randall and Big Bend Taking Acts must

be construed to deprive the Tribe of any treaty right to regulate nonmember

hunting and fishing in the taken areas. Thus, the district court correctly

reached this conclusion.

The Tribe does not challenge the court's conclusion as to

extinguishment of treaty rights so much as it asserts that only the

4

federal government, not the State, has jurisdiction to regulate nonmembers'

activities in the taken areas. It is clear that
13

Congress provided the Army Corps of Engineers with the regulatory control

over the taken areas. 16 U.S.C. § 460d; see also Bourland III, 508 U.S.

at 690. The district court determined that the Corps has the authority to

relegate partial jurisdiction over the taken areas to the State and that

the Corps has in fact entrusted the State with that regulatory authority.

We reject the Tribe's arguments that Congress preempted all State

jurisdiction and agree with the district court's conclusions. 

It is apparent from the language of the Flood Control Act of 1944

that Congress did not preempt state law. The Act provides: "No use of

any area to which [the Flood Control Act] applies shall be permitted which

is inconsistent with the laws for the protection of fish and game of the

State in which such area is situated." 16 U.S.C. § 460d (emphasis added).

Also, both the Fort Randall and Big Bend Taking Acts grant tribal members

permission to hunt and fish within the taken areas, "subject, however, to

regulations governing the corresponding use by other citizens of the United

States." Fort Randall Taking Act, § 5; Big Bend Taking Act, § 10. This

language recognizes that other regulations may impact the lands. See

Bourland III, 508 U.S. at 691. In light of the fact that there are no

comprehensive federal hunting and fishing regulations in effect for the

taken areas, we agree with the district court's observation that this

language indicates Congress anticipated that the federal government would

rely heavily on state regulation.

Moreover, the federal government has consistently expressed the view

that the State has jurisdiction to regulate hunting and fishing by

nonmembers on the taken lands. In a March 6, 1976 letter to the Tribe's

Chairman, a Corps engineer stated in relevant part:

That lands purchased and/or condemned by the United

States for the Ft. Randall and Big Bend Projects were

returned to the public domain, and, as such, fall within
14

the civil and criminal, or legislative jurisdiction of

the State of South Dakota.

That the fish and game laws of the State of South Dakota

are the only such laws that apply to these areas which

were formerly owned by the Lower Brule Sioux Tribe and

its members.

(App. of Appellee II at B.7 (Letter from Col. Russell A. Glen, District

Engineer for the Army Corps of Engineers to Tribal Chairman Michael B.

Jandreau)). Similarly, in a September 15, 1986 letter, the Corps

reiterated its position: 

[R]egulation of hunting and fishing on Corps project

lands in South Dakota is a matter of State law. This was

clearly the intent of Section 4 of the 1944 Flood Control

Act . . . . As you know, the Corps has only proprietal

jurisdiction over its project lands along the mainstem of

the Missouri River in South Dakota. Such lands are

subject to state civil and criminal jurisdiction.

(App. of Appellee II at B.9 (Letter from Col. Steven G. West, District

Engineer for the Army Corp of Engineers to Secretary Jeff Stingley of South

Dakota Fish and Parks)). The rules and regulations set forth by the Corps

to govern public use of the taken lands and waters likewise provide for

application of state laws. See, e.g., 36 C.F.R. § 327.8 (1995) (providing

that all federal, state, and local laws pertaining to hunting, fishing, and

trapping apply on project lands); 36 C.F.R. § 327.26 (1995) (similar). We

agree with the district court that the Army Corps of Engineers has the

authority to delegate regulatory and enforcement responsibilities to the

State. We also agree that the Corps has clearly manifested its intention

to do so on the projects lands and waters at issue in this case.

V.

In conclusion, we affirm the district court's holding that the State

has exclusive regulatory jurisdiction over hunting and
15

fishing by nonmembers on both nonmember-owned fee lands and the taken area

within the Reservation. 

BEAM, Circuit Judge, concurring and dissenting.

Judge Heaney has written a very well-reasoned opinion for the court

in which I concur, except for part IV A.2. dealing with inherent

sovereignty. For the reasons I advanced in A-1 Contractors v. Strate, 76

F.3d 930, 941-42 (8th Cir.), cert. granted, 117 U.S. 37 (1996), it is my

view that the Tribe has a “valid tribal interest” in the regulation of

hunting and fishing activities on all lands, whether tribal, member-owned,

or nonmember-owned, within the geographic confines of the reservation.

Thus, the second exception set forth in Montana v. United States, 450 U.S.

544, 566 (1981) - holding that a tribe may regulate, as a sovereign,

conduct that “threatens or has some direct effect on the political

integrity, the economic security, or the health and welfare of the tribe,”

- requires abatement of South Dakota’s effort to invade tribal territory.

I believe that the district court (and this court in affirming the

district court) effects an incorrect analysis of the sovereignty issue at

play in this case. The court says “[w]e hold that the district court did

not err in its determination that the Tribe failed to establish sufficient

evidence [of sovereignty] to prevent summary judgment . . . .” Supra at

12. This is not (or at least should not be) the test.

“Indian tribes are unique aggregations possessing attributes of

sovereignty over both their members and their territory." United States

v. Wheeler, 435 U.S. 313, 323 (1978) (emphasis supplied). Until Congress

acts, the Tribe possesses those aspects of sovereignty not withdrawn by

treaty or statute. Id. “Tribal authority over the activities of nonIndians on reservation lands is an important part of tribal sovereignty.”

Iowa Mut. Ins. Co. v.
16

LaPlante, 480 U.S. 9, 18 (1987). Although speaking specifically of tribal

court jurisdiction, the Supreme Court noted that, “[c]ivil jurisdiction

over such activities [of non-Indians on reservation lands] presumptively

lies in the tribal courts unless affirmatively limited by a specific treaty

provision or federal statute.” Id. (emphasis supplied). “`Because the

Tribe retains all inherent attributes of sovereignty that have not been

divested by the Federal Government, the proper inference from silence . .

. is that the sovereign power . . . remains intact.’” Id. (quoting Merrion

v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n.14 (1982)).

South Dakota asserts its own sovereign power when it regulates

hunting and fishing outside of the reservation but within the borders of

the State. The sovereignty of the Tribe over the lands of the reservation

when such sovereignty is unencumbered by treaty or federal law, as here,

provides equal, if not superior, authority to the Lower Brule government.

And the State's sovereignty, it seems to me, in no way attenuates,

displaces, or makes subservient the territorial sovereignty of an Indian

tribe on reservation lands that also lie within the boundaries of South

Dakota -- at least such sovereign power as is necessary to regulate fishing

and wildlife activity. Indeed, we recognize in this very case the

authority of the Tribe to regulate these activities on parts of the

reservation and its long-standing use of this authority. Accordingly,

there is, in my view, a presumption of Lower Brule sovereign power

sufficient to regulate hunting and fishing within the outer boundaries of

the reservation (except for the taken lands) since neither treaty nor

congressional act has affirmatively abrogated these retained tribal powers,

powers that have existed since prior to South Dakota statehood. 

Thus, it seems to me that it is South Dakota and not the Tribe that

has the "laboring oar" on the issue of fishing and wildlife jurisdiction

over nonmember fee lands and waters within the reservation. In my view,

the State has fallen woefully short of
17

sustaining its burden under the rules we apply to motions for summary

judgment. 

It is well settled that a waiver of tribal sovereign immunity

"'cannot be implied but must be unequivocally expressed.'" Santa Clara

Pueblo v. Martinez 436 U.S. 49, 58 (1978)(quoting United States v. Testan,

424 U.S. 392, 399 (1976)). And the Supreme Court has said: "We found [in

McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 168 (1973)] a

'deeply rooted' policy in our Nation's history of 'leaving Indians free

from state jurisdiction and control.’" Oklahoma Tax Comm'n v. Sac and Fox

Nation, 508 U.S. 114, 123 (1993). Thus, although not directly on point,

these holdings dictate that on the facts of this case, as we presently know

them, South Dakota should not be allowed to substitute its sovereign power

for the presumptive sovereignty of the Tribe over lands within the

reservation. 

I do not read the holding in Montana v. United States to be to the

contrary. The issue of inherent sovereignty, or not, is a fact-driven

inquiry or, at least, a mixed question of fact and law, and the evidence

in this case is significantly different than in Montana.

In Montana, there was a trial at which evidence was adduced by the

State showing that Montana had, since 1928, "engaged in an extensive fishstocking program throughout the waters of the Crow Indian Reservation,"

United States v. Montana 457 F. Supp. 599, 605 (1978) and that the State

had both stocked and introduced non-indigenous game birds and indigenous

game animals on reservation lands and areas adjacent to the reservation.

Id. There was also evidence that the Crow Tribe had taken only a mild

interest in fishing and wildlife management and then only within about five

years or less prior to the 1978 trial. Id. at 610. The passage of the

Tribal resolution at issue in the litigation prohibiting all nonmembers

(including presumably nonmember fee owners) from fishing
18

or hunting within the boundaries of the reservation occurred in 1973. Id.

This action was the first formal exercise of fish and wildlife jurisdiction

in tribal history. Id. On the other hand, the Supreme Court observed that

Montana had "traditionally exercised 'near exclusive' jurisdiction over

hunting and fishing on fee lands within the reservation." 450 U.S. at 564

n.13. The Supreme Court noted that under the facts of the Montana case

there was no showing of a threat to the political or economic security of

the Crow Nation, and there was not even an allegation in the complaint

concerning impact upon the health and welfare of the Tribe. Id. at 566.

Therefore, it is readily evident that even with the limited facts available

in this matter through the cross motions for summary judgment, this is a

radically different case than Montana. 

If the Tribe were to purchase in fee simple absolute 10,000 acres of

prime hunting and fishing land along the Missouri River outside of the

reservation, I am confident that the State would seek to apply its

sovereign power, and rightly so, to regulate hunting and fishing activities

on such non-reservation property. If the Tribe sought to transfer its

sovereignty to the property, the State would make all the same arguments

that the Tribe makes in this case as to why such activity would affect the

political integrity, the economic security, and the health and welfare of

the people of South Dakota. Those arguments would be valid. Likewise, the

Tribe's well-used sovereign power over fishing and hunting on the Lower

Brule Reservation lands should not be squeezed out by the State, whomever

may hold title to individual parcels of property in this part of Indian

country.
 The court, like the district court, gives too little weight 5

to the Tribe's credible contention that "checkerboard" jurisdiction

will impair the Tribe's integrity by creating confusion and

discouraging use of the reservation. Supra, at 11; 917 F. Supp. at

1448. To say that the Supreme Court has "authorized exactly this

kind of 'checkerboard' jurisdiction" when the facts so indicate,

supra, at 11, does not mean that we are to simply ignore the effect

of such a result on the Tribe in considering tribal sovereignty.

Indeed in Brendale, the problems presented by inconsistent dual

zoning regulations that frustrated tribal land management clearly

informed the Court's conclusion that the Yakima Nation retained

regulatory authority on fee lands in a portion of the reservation.

497 U.S. at 442-44.

19

Does the overlapping, checkerboard-style wildlife regulation scheme5

over the lands within the reservation suggested by South Dakota threaten

or have some direct effect on the political integrity, the economic

security or the health and welfare of the Tribe? Applying the above

examples, policies, and principles to this question, there can be little

doubt that the answer is in the affirmative. And even if the proposition

is ambiguous, it is up to South Dakota to rebut with clear and convincing

evidence the presumption of tribal sovereignty, not vice versa.

Thus, I respectfully dissent from the holding of the court in part

IV A.2. of the opinion.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.