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 Brul e SiouxTribe ("Tribe") and the State of South Dakota and the Secretary of the St ate Game, Fish & Parks Division ("State") concerning regulator y jurisdiction over hunting and fishing by nonmembers of the Tribe o n nonmember-owned fee lands and waters and taken a reas 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 law s over any person withi n the boundaries of the Reservation. The Tribe also sought declaratory relief that the State is barred from exercising an y regulatory authority over hunting or fishing within the Reservation. Sinc e this litigation began in 1980, the Supreme Court has handed down several important decisions relating to

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In dian sovereignty and tribal regulatory authority on different lan d classifications within Reservation boundries. Accordingly, the district court determined that this action is substantially controlled by Sout h Dakota v. Bourland (" Bourland III") , 508 U.S. 679 (1993), rev'g , 949 F.2d 984 (8th Cir. 1991), Brendale v. Confederated Tr ibes & Bands of the Yakima Indian Nation , 492 U.S. 408 (1989) (plurality), and Montana v. Unite d States , 4 50 U.S. 544 (1981). Following this line of authority, th e district court grante d 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 t o enjoin the State from enforcing its fish and wildlife regulations on fee lands and taken lands within the boundaries of the Reservation and t o obtain a declaratory judgment that the Tribe has exclusive regulator y jurisd iction over hunting and fishing by any person within Reservatio n boundaries

. In the first phase of the litigation, the district cour t reserved ruling on matters pertaining to fee lan ds. With respect to lands taken by the Army Corps of Engineers for flood control projects at For t Rand all and Big Bend, the court held that the respective taking act s diminished the Reservation thereby divesting the Tribe of jurisdiction ove r
eve n tribal members on those lands. Lower Brule Sioux Tribe v. Sout h Dakota (" Lower Brule I "), 540 F. Supp. 276, 292 (D.S.D. 1982). Our court
revers ed, holding that the Tribe had exclusive jurisdiction to regulat e hunting and fishing by tribal members in the tak en areas and remanding for reconsideration of who has jurisdiction to regul ate 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 (8t h Cir. 1983). Before trial, however, the Tribe and the State entered into a five-year cooperati on agreement. Unfortunately, this agreement was not renewed; and when it expired on October 24, 1991,

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the Tribe brought this action to enjoin the State from enforcing it s hun ting and fishing laws over any person on fee lands and taken land s wit hin the boundaries of the Reservation and to bar the State fro m 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-yea r 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 seco nd response to the motion, the district court granted the State's motion fo r 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 , Bourlan d III , and Brendale , the court held (1) Congress has abrogated any treat y rights that provided the Tribe with the authority to regulate hunting and fishing by nonmembers on both fee lands and wate rs and in the taken areas; (2) the Tribe's inher ent sovereignty does not extend to the regulation of hunting and fishing by nonmembers on fee or taken lands either by virtue of a consensual relat ionship 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 fishin g within both the fee and taken areas at issue. The Trib e appeals, arguing both that there are disputed material facts that mak e summary judgment inappropriate and that the cour t erred as a matter of law in det ermining that the State has exclusive jurisdiction to regulat e hunting and fishing on non-trust lands within the Reservation.

II.

To provide some context for this dispute, we begin with a basi c history of the Lower Brule Sioux Reservation. A more comprehensiv e background discussion, with particular detail about

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the relevant treaties and taking acts, is contained in Lower Brule I , 540 F. Supp. at 278-86.

The For t Laramie Treaties of 1851, 11 Stat. 749 (1851), and 1868, 15 Stat 635 (1868), e stablished the boundaries of the Great Sioux Nation. See Uni ted States v. Sioux Nation of Indians , 448 U.S. 371 (1980). Th e 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 Sout h Dakota in northeastern Lyman County and extends slightly into th e southeastern corner o f Stanley County. The Reservation is bounded on the northeast and east by the Missouri River. The original area of th e Reserv ation, which consisted of 446,500 acres, was twice diminished b y Congress : first by the Act of March 3, 1899, 30 Stat. 1362 (1899), an d
seco nd by the Act of April 21, 1906, 34 Stat. 124 (1906). The presen t Reservation consists of approximately 235,800 acres.

The two classifications of Reservation areas at issue in thi s litigation are nonmember-owned fee lands and wat ers and the areas taken by the Army Corps of Engineers for two flood contro l projects. Approximately 56,634 acres, or roughly one-quarter of the total Reservation land, i s dee ded 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 Reser vation were allotted to individual tribal members as part of Congress's wi despread attempt to disestablish reservations and to force Indians to assimilate into the dominant white culture modeled o n 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 developm ent, 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 trus t lands, tribal lands, allotted

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lands, and fee lands. The boundaries between the variously classifie d 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 Mi ssouri River as authorized by the Flood Control Act of 1944, Pub. L. No. 78 -534, 58 Stat. 887 (1944). Two taking Acts estab lished the territory now at issue: the Fort Randall Taking A ct, Pub. L. No. 85-923, 72 Stat. 1773 (1958), and the Big Ben d Taking Ac t, Pub. L. No. 87-734, 76 Stat. 698 (1962). Collectively, th e 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 t o graze stock on the land and a right of free acce ss for members to hunt and fish. According to the Big Bend Taking Act, the United States acquired th e "entire interest" of the Tribe, including gravel and any interest the Trib e may have had within the bed of the Missouri River; the Tribe maintained th e right to graze on the land and free access for hunting and fishing.

III.

We re view 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. , 5 5 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 f acts are viewed in the li ght most favorable to the nonmoving party and th e burden is placed on the moving party to establish both

### The Tribe r aises numerous factual disputes which it believes 1 

### should have prevented the district court from issuing summar y judgment. After careful consi deration of each of these claims, we have determined that none are material to the resolution of th e issues presented in this case.
6 the absence of a genuine issue of material fact and that su chparty 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). Onc e the moving party has met this burden, t he nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set fo rth specific facts showing that a genuine issue of material fact exists.

Id.

We must examine the evidence in the context of the legal issue s involved. Thus, it i s not enough that there are factual disputes between the parties, "the dispute[s] must be outcome determinative under prevailin g law." Holloway v. Pigman , 884 F.2d 365, 366 (8th Cir. 1992). We agre e with the district cou rt that under existing precedent summary judgment is appropriat e 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 th e disputes is outcome determinative once put in legal context. Thus, w e 1 agree t hat the record presents no genuine issues of disputed materia l facts.

IV.
Tribal jurisdiction to regulate hunt ing and fishing by nonmembers on
nonm ember-owned fee lands and taken lands derives from either of tw o sources: treaty rights or inherent tribal sovereignty. See Montana v
. United States , 450 U.S. 544, 556-58 (1981). We examine each source o f juris diction separately as it applies to the different lan d classifications.

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A. Fee Lands and Waters

1. Treaty Rights
Consistent with Supreme Court precedent, the district court hel d 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 abrogatedby the Indian General Allotment Act of 1887. Lower Brule III , 917 F. Supp at 1446. In 1868, the Fo rt Laramie Treaty gave the Tribe the right of "absolute and undisturbed use and occupation" o f Reservation lands. 15 Stat. 636. This authority to exclude nonmember s 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 withthe 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:

Montanaand Brendale establish that when an Indian tribe conveys owne rship of its tribal lands to non-Indians, it loses any fo rmer right of absolute and exclusive use and occupation of the conveyed lands. The abrogation of this gr eater right . . . implies the loss of the regulator y jurisdiction over the use of the lands by others.

Bourland III , 508 U.S. at 689. After the General Indian Allotment Act, th e Tribe no longer retains the exclusive use and benefit of the land, an d Congress did not expressly delegate authority to the Tribe to regulat e
no nmember conduct on nonmember-owned fee lands. Therefore, whateve r 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 sovereig nty independent of treaty rights and the authority derived from their power to exclude nonmembers fro m trib al lands. Despite their dependence on the United States, tribe s genera llyretain sovereignty in the form of tribal self-governance an d 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 r elations.'" Brendale , 492 U.S. at 4 25-26 (quoting United States v. Wheeler , 435 U.S. 313, 32 6 (1978)); see also Montana , 450 U.S. at 564 ("[E]xercise of tribal powe r 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 Montan a , the Supreme Court recognized two possible exceptions to the general rule that inherent sovereign powers of an Indian tribe do not extend to the activit ies of nonmembers of the tribe. 450 U.S. at 565-66. First, "[a] tribe may regulate . . . the activities of nonmembers who ente r consensual relationships with the tribe or its m embers, 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 tha t the first Montana exception is inapplicab le. Neither the original title deeds for the lands nor th e purchase of hunting and fishing licenses give rise to the requisit e consensual relationship between the Tribe and no nmembers 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 a rgued that it was adversely impacted bythe lost job opportunities for its members who would perfor m regula toryfunctions. The Tribe appears to have abandoned thi s argument on appeal. Although we do not specifically address this issue, we note that our decision would not be altered by th e inclusion of this claim. The S tate asks us to adopt the more stringent standard se t 3 

### forthin Justice White's plurality opinion in Brendale . I n Brendale , Justice White wrote that for an Indian tribe to retai n juris diction over nonmembers pursuant to the second Montan a exception, "[t]he impact [on tribal interests] must be demon strably se rious and must imperil the political integrity, the economi c 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 B rendale
9 Bourland(" Bourland IV "), 39 F.3d 868, 869 (8t h Cir. 1994); Montana , 450 U.S. at 566.
The Tribe also argues that the recor d supports a finding that, under the second Montana exception, it retains the pow er to regulate hunting and fishin g by nonmembers on nonmember-owned fee lands because the conduc t affects the Tribe's economic, political, and social welfare. Specifically , the Tribe asserts that state regulation will: (1) deprive the Tribe o f licensing revenues; ( 2) adversely affect game populations on trust lands; and (3) cause confusion and discourage the use of the Reservation due to the comp lexities of complying with separate laws in adjoining areas. 2 While noting that these same factors were present in either or both Montan a and Bourland III and that the adverse impact was insufficient to establish trib al jurisdiction, the district court conducted the necessar y "particularized inquiry into the unique facts and circumstances surroundin g the Lower Brule Reser vation and the Lower Brule Tribe." Lower Brule III , 917 F . Supp. at 1447; see also Brendale , 492 U.S. at 428-30. The cour t specifically took into account the Tribe's history, economy, and populatio n mix. Lower Brule III , 917 F. Supp. at 1447.

The court concluded that State regulation of nonmember hunting an d fishing does not threaten the political integrity, economic security, or health and welfare of the Tribe. Id . at 1449. With 3

### pluralityopinion modified the second Montana exception. Th e

district court explicitly anal yzed the Tribe's arguments under the framework of Montana , avoiding the more stringent arguabl e modification in Brendale

. Lower Brule III , 917 F. Supp. at 1446. We do the same. We note only that affirmance under the les s stringent standard as originally articulated in Montana nece ssarily implies a failure to satisfy a more stringent application of th e exception. See Bourland IV , 39 F.3d at 870 n.4.
10 respect to licensing fees, the court found that revenue from licensin g accounts for only a small fraction of the dollars spent by hunters an d fishers and that, in light of the economic strength of the Tribe, los t revenues do not pose a significant threat to the economic security of the Tribe. With respect to migrating game populatio ns, the court acknowledged that wildlife herds m igrate throughout the Reservation and that nonmember huntin g on nonmember-owned fee lands will reduce the overall dee r population on tribal land to some extent. Yet, the court found no evidenc e
on the re cord to support a determination that the harvesting of deer o n nonmember fee lands threatened the overall welfare of the Tribe. Se e 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 a mount to a direct threat to the welfare of the Tribe as a whole). For example, there is no evidence that a significant number o f tribal members depend on wild game for their sustenance or livelihood

. Finally, the court acknowledged that there are u nmarked boundaries between the various types of Reservation land and that separate laws enforced by distinct governments on adjoining lands can create some confusion

. Noneth eless, the court recognized that the Supreme Court has authorize d exactlythis kind of "checkerboard" jurisdiction by mandating tha t 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 determinatio n that the Tr ibe failed to establish sufficient evidence to prevent summar y judgme nt on the jurisdictional issue over nonmember-owned fee lands an d waters. We also find no error in the court's conclusion that no principle s of fed eral Indian law preclude the State from lawfully exercisin g jurisdiction over nonmembers on the fee lands and waters at issue. W e hasten to add, however, that the Tribe may seek relief in the distric t court in the future if circumstances change in kind or degree so as t o directly affect or threaten the political integr ity, economic security, or healthand welfare of the Tribe as a whole. See Bourland IV , 39 F.3d at 871.

B. Taken Lands
Also at issue is jurisdiction over h unting 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 tha t Congress's exercise o f eminent domain abrogated the Tribe's treaty rights and that the Tribe's inherent sovereignty does not extend to the regulatio n of hunting and fishing by nonmembers in the taken areas.

As the Supreme Court explains, "regardless of whether land i s conveyed p ursuant to an Act of Congress for homesteading or for floo d control purposes, when Congress has broadly opened up such land to non

Indians, the effect of the transfer is the destruction of pre-existin g Indi an rights to regulatory control." Bourland III , 508 U.S. at 69 2 (footnote omitted). Thus, it is necessary to look to the language of the Acts which effectuate d the takings. Section 1 of the Fort Randall Taking Act, Pub. L. No. 85-9 23, 72 Stat. 1773, provides that the payments by the United St ates to the Lower Brule Sioux Tribe were in "settlement of al l claims, rights, and demands of said tribe." Section 1 of the Big Ben d Taking Act, Pub. L. No. 87-734, 76 Stat. 698, is almost identical. Both

### Nor does th e Tribe challenge the district court's conclusion 4 

### that n either Montana exception is applicable and, therefore, th e Tribe does not have inherent a uthority to regulate the hunting and fishing by nonmembers on the taken lands.
12 provis ions indicate that there was a mutual understanding between th e United States and the Tribe that the Acts set forth all of the terms of th e transaction and all the rights the Tribe would retain under the agreements

. Section 5 of the Fort Randall Taking Act explicitly provides that th e Tribe retains two rights, without cost: first, to graze livestock and , sec ond, to hunt and fish in the taken area subject to the regulation s governin g the corresponding use of the land by other United State s citizens. Similarly, Section 10 of the Big Bend Taking Act reserves for the Trib e and its individual members the right to hunt and fish on th e taken area subject to the laws applicable to other citizens doing the same

. The provi sions set out above are almost identical to Sections 2 and 10 of t he Cheyenne River Act, 68 Stat. 1191 (1954) (taking land for th e Oahe Dam and Reservoi r 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 mus t be construed to deprive the Tribe of any treaty right to regulate nonmembe r hunting and fishing in the taken areas. Thus, the district court correctl y reached this conclusion.

The Tribe does not challenge the court's conclusion as t o exti nguishment of treaty rights so much as it asserts that only th e 4 federal government, not the State, has jurisdiction to regulate nonmembers ' activities in the taken areas. It is clear that

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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 rej ect the Tribe's arguments that Congress preempted all Stat e jurisdiction and agree with the district court's conclusions.

It is app arent from the language of the Flood Control Act of 194 4 that Congress did not preempt state law. The Act provides: "No use of any area to which [the Flood Control Act] applie s 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 R andall and Big Bend Taking Acts grant tribal members permission to hunt an d fish within the taken areas, "subject, however, to regulations governing the corresponding use by other citizens of the Unite d States." Fort Randall Taking Act, § 5; Big Bend Taking Act, § 10. This languag e recognizes that other regulations may impact the lands. Se e Bourland III , 508 U.S. at 691. In light of the fact that there are n o compre hensive federal hunting and fishing regulations in effect for th e taken a reas, we agree with the district court's observation that thi s language indicates Co ngress 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 b y 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 Unite d States for the Ft. Randall and Big Bend Projects wer e returned to the public domain, and, as such, fall within

### 14 the civil and criminal, or legislative jurisdiction o f the State of South Dakota. That the fis h and game laws of the State of South Dakota ar e the only such laws that apply to these areas whic h were f ormerly owned by the Lower Brule Sioux Tribe an d its members.
(App. of Appellee II at B.7 (Letter from Col. Russell A. Glen, Distric t Engin eer for the Army Corps of Engineers to Tribal Chairman Michael B

. Jandr eau)). Similarly, in a September 15, 1986 letter, the Corp s reiterated its position:
[R]eg ulation of hunting and fishing on Corps projec t lands in South Dakota is a matter of St ate law. This was clearly the intent of Section 4 of the 1944 Flood Control Ac t . . . . As you know, the Corps has only proprieta l jurisdiction over its project lands alo ng the mainstem of the Mi ssouri River in South Dakota. Such lands ar e subject to state civil and criminal jurisdiction.
(App. of Appellee II at B.9 (Letter from Col. Steven G. West, Distric t Engineer for the Army Corp of Engineers to Secretary Jeff Stingley of Sout h Dakota Fish and Parks)). The rules and regulati ons set forth by the Corps to govern public use of the taken lands and waters likewise provide fo r 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, an d trapping apply on project lands); 36 C.F.R. § 32 7.26 (1995) (similar). We agree with the district court that the Army Corps of Engineers has th e authorityto 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 distric t court's holding that the State has exclusive regulatory jurisdiction over hunting and

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fishing by nonmembers on both nonmember-owned fe e lands and the taken area within the Reservation.
BEAM, Circuit Judge, concurring and dissenting.

Judge Hea ney has written a very well-reasoned opinion for the court in which I concur, except for part IV A.2. dealing with inheren t 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 viewthat the Tribe has a “valid tribal interest” in the regulation o f hunting and fishing activities on all lands, whe ther tribal, member-owned,
or n onmember-owned, within the geographic confines of the reservation

. Thus, the second exception set forth in Montana v. United States , 450 U.S. 544, 5 66 (1981) - holding that a tribe may regulate, as a sovereign , conduct that “threatens or has some direct effect on the politica l integrity, the economic security, or the health and welfare of the tribe,” - requires abatement of South Dakota’s effort to invade tribal territory.

I belie ve that the district court (and this court in affirming th e district court) effec ts an incorrect analysis of the sovereignty issue at play in this case. T he court says “[w]e hold that the district court did not err in its determination that the Tribe fail ed 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 o f sovereignty over both their members and their territory ." United States v. Wheeler , 435 U.S. 313, 323 (1978) (emphasis supplied). Until Congress act s, the Tribe possesses those aspects of sovereignty not withdrawn b y treatyor statute. Id. “Tribal authority over the activities of non

Indians on reservatio n 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 triba l 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 treat y provis ion or federal statute.” Id. (emphasis supplied). “`Because th e Tri be retains all inherent attributes of sovereignty that have not bee n divested by the Feder al Government, the proper inference from silence . .

. is that the sovereign power . . . remains intact.’” Id. (quoting Merrio n v. Jicarilla Apache Tribe , 455 U.S. 130, 149 n.14 (1982)).

SouthDakota asserts its own sovereign power when it regulate s hunting and fishing outside of the reservation but within the borders of the State. The sovereignty of the Tribe over th e lands of the reservation when such sovereignty is unencumbered by treaty or federal law, as here, provides equal, if no t 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 Sout h Dakota -- at least such sovereign power as is necessary to regulate fishin g and wildlife activity. Indeed, we recognize in this very case th e authority of the Tribe to regulate these activities on parts of th e
reserv ation and its long-standing use of this authority. Accordingly , the re is, in my view, a presumption of Lower Brule sovereign powe r sufficient to regulat e hunting and fishing within the outer boundaries of the res ervation (except for the taken lands) since neither treaty no r 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 summar y judgment.

It is well settled that a waiver of tribal sovereign immunit y "'c annot be implied but must be unequivocally expressed.'" Santa Clar a Pueblo v. Martinez 436 U.S. 49, 58 (1978)(quotin g United States v. Testan , 424 U.S. 392, 399 (19 76)). And the Supreme Court has said: "We found [in McClanahan v. Arizona State Tax Commission , 411 U.S. 164, 168 (1973)] a 'de eplyrooted' policy in our Nation's history of 'leaving Indians fre e 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 kno w them, South Dakota should not be allowed to subs titute its sovereign power for the presumptive sovereignty of the Tribe over lands within th e reservation.

I do not read the holding in Montana v. United States to be to th e contr ary. The issue of inherent sovereignty, or not, is a fact-drive n inquiryor, at least, a mixed question of fact and law, and the evidence in this case is significantly different than in Montana
.

In Mon tana , there was a trial at which evidence was adduced by th e State showing that Montana had, since 1928, "eng aged in an extensive fishstocki ng 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 mil d interest in fishing and wildlife management and then only within about fiv e years or less prior to the 1978 trial. Id. at 610. The passage of th e Tribal resolution at issue in the litigation prohibiting all nonmember s (including presumably nonmember fee owners) from fishing

### 18

or hunting within the boundaries of the reservat ion occurred in 1973. Id. This action was the first formal exercise of fish and wildlife jurisdictio n in tribal history. Id. On the other hand, the Supreme Court observed tha t Montana had "traditionally exercised 'near exclusive' jurisdiction over hunting and fishing on fee lands within the rese rvation." 450 U.S. at 564 n.13. The Supreme Court noted that under the facts of the Montana cas e 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 complain t concerning impact upon the health and welfare of the Tribe. Id. at 566. Therefore, it is readily evident that even with the limited facts availabl e 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 th e
res ervation, I am confident that the State would seek to apply it s sovereign power, and rightly so, to regulate hunting and fishing activitie s
on su ch non-reservation property. If the Tribe sought to transfer it s sovereigntyto 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, th e Tri be's well-used sovereign power over fishing and hunting on the Lowe r Brule Reservation lan ds should not be squeezed out by the State, whomever may hold title to individual parcels of property in this part of India n country.

### The court, like the district court, gives too little weight 5 

### to the Tribe's credible contention that "checkerboard" juris diction will impair the Tribe's integrity by creating confusion an d discouraging use of the reservation. Supra , at 11; 917 F. S upp. at 1448. To say that the Supreme Court has "authorized exactly this kind o f '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

. Inde ed in Brendale , the problems presented by inconsistent dua l zoning regulations that frustrated tribal land management clearly info rmed the Court's conclusion that the Yakima Nation retaine d regulatory authority on fee la nds in a portion of the reservation. 497 U.S. at 442-44.
19 Does the overlapping, che ckerboard-style wildlife regulation scheme 5

over the lands within the reservation suggested by South Dakota threaten
or have some direct effect on the political integrity, the economi c securi tyor the health and welfare of the Tribe? Applying the abov e 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 par t IV A.2. of the opinion.

A true copy.

Attest:

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