Both the language and legislative history of the Acts of 1904,
1907, and 1910, whereby land in certain counties in South Dakota
located within the boundaries of the Rosebud Sioux Reservation as
defined in an 1889 Treaty was required to be ceded by the
Reservation Indians to the Government for sale to settlers under
the homestead and townsite laws with the proceeds to be credited to
the Indians only as received or, with respect to certain parcels,
for transfer to South Dakota for school use,
held clearly
to evidence a congressional intent to diminish the boundaries of
the Reservation. Although such Acts were unilateral Acts of
Congress without the consent of three-fourths of the Rosebud Sioux
Tribe's adult male members, as was required by the original 1868
Treaty establishing the Reservation, that fact does not directly
bear on the question whether Congress, by these later Acts,
intended to diminish the Reservation boundaries. Nor is it
conclusive with respect to congressional intent that these Acts
changed the method of payment from an outright, fixed-sum payment
to the Indians required by a 1901 Agreement that would have amended
the 1889 Treaty and would have resulted in a diminution of the
Reservation boundaries, but which, although approved by
three-fourths of the Tribe's adult male members, was never ratified
by Congress. Pp.
430 U. S.
586-615.
521 F.2d 87, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN
and STEWART, JJ., joined,
post, p.
430 U. S.
615.
Page 430 U. S. 585
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In June, 1972, the Rosebud Sioux Tribe sued in the United States
District Court for the District of South Dakota to obtain a
declaratory judgment that the original boundaries of their
reservation, as defined in the Act of March 2, 1889, 25 Stat. 888,
had not been diminished by three subsequent Acts of Congress passed
in 1904, 1907, and 1910 respectively. [
Footnote 1] The District Court, noting that,
"[f]rom the time these acts were passed, these [four] counties
have been treated as outside the Rosebud Sioux Reservation by the
settlers, their descendants, the State of South Dakota and the
federal courts,"
375 F.
Supp. 1065, 1084, denied relief. It concluded that Congress had
intended to diminish the Reservation so as to exclude the four
counties in South Dakota affected by the 1904, the 1907, and the
1910 Acts. The United States Court of Appeals for the Eighth
Circuit, in a careful and comprehensive opinion, affirmed the
judgment of the District Court. 521 F.2d 87. We granted certiorari,
425 U.S. 989, to review this determination in the light of our
recent decisions in
DeCoteau v. District County Court,
420 U. S. 425
(1975), and
Mattz v. Arnett, 412 U.
S. 481 (1973). Since we conclude that the three Acts
Page 430 U. S. 586
of Congress in question satisfy the requirement that
"[a] congressional determination to terminate [an Indian
reservation] must be expressed on the face of the Act or be clear
from the surrounding circumstances and legislative history,"
Mattz v. Arnett, supra at
412 U. S. 505,
we affirm the judgment of the Court of Appeals.
I
When established, the Rosebud Indian Reservation contained
somewhat over 3.2 million acres, and covered all or a portion of
what later became five counties in South Dakota: Gregory, Tripp,
Lyman, Mellette, and Todd. The three Acts we are asked to construe
successively disposed of all unallotted lands in Gregory County
(1904 Act), in Tripp and Lyman Counties (1907 Act), and in Mellette
County (1910 Act). Only Todd County remains unaffected by these
post-1889 enactments. The contention of the Rosebud Sioux Tribe is
that these Acts, while opening up the unallotted land outside of
Todd County to non-Indian settlement, did not thereby change the
Reservation boundaries, which continued to encompass these five
counties.
In determining whether or not the 1889 Reservation boundaries
were subsequently diminished by congressional enactments, we are
guided by well established legal principles. The underlying premise
is that congressional intent will control.
DeCoteau v. District
County Court, supra at
420 U. S. 444,
420 U. S. 449;
United States v. Celestine, 215 U.
S. 278,
215 U. S. 285
(1909). In determining this intent, we are cautioned to follow
"the general rule that '[d]oubtful expressions are to be
resolved in favor of the weak and defenseless people who are the
wards of the nation, dependent upon its protection and good
faith.'"
McClanahan v. Arizona State Tax Comm'n, 411 U.
S. 164,
411 U. S. 174
(1973), quoting
Carpenter v. Shaw, 280 U.
S. 363,
280 U. S. 367
(1930);
see also Mattz v. Arnett, supra at
412 U. S. 505.
The mere fact that a reservation has been opened to settlement does
not necessarily mean that the opened area has lost its
reservation
Page 430 U. S. 587
status.
Mattz v. Arnett, supra; see also Seymour v.
Superintendent, 368 U. S. 351
(1962). But the "general rule" does not command a determination
that reservation status survives in the face of congressionally
manifested intent to the contrary.
DeCoteau v. District County
Court, supra. In all cases, "the face of the Act," the
"surrounding circumstances," and the "legislative history," are to
be examined with an eye toward determining what congressional
intent was.
Mattz v. Arnett, supra at
412 U. S.
505.
Applying these principles to the facts of this case, we conclude
that the Acts of 1904, 1907, and 1910 did clearly evidence
congressional intent to diminish the boundaries of the Rosebud
Sioux Reservation. The parties agree that an amendment to the 1889
Treaty, which provided for a fixed-sum payment and which was
approved by three-fourths of the Rosebud Sioux Tribe's adult males
in 1901, would have resulted in the diminution of the Rosebud
Reservation boundaries. Congress did not, however, approve the 1901
amendment to the Treaty which the Tribe had ratified. The Tribe
contends that, lacking tribal ratification and a fixed-sum
provision, the later Acts were ineffectual to accomplish this same
result. In the Tribe's view, the absence of these two factors
vitally distinguishes the Acts in question from the otherwise
similar Act examined in
DeCoteau v. District County Court,
supra. Because of the reasons hereafter set forth in greater
detail, we conclude that, although the Acts of 1904, 1907, and 1910
were unilateral Acts of Congress without the consent of
three-quarters of the members of the tribe required by the original
Treaty, [
Footnote 2] that fact
does not have any direct bearing on the question of whether
Congress, by these later Acts, did intend to diminish the
Reservation boundaries. By the time of
Page 430 U. S. 588
the first of these Acts, in 1904, Congress was aware of the
decision of this Court in
Lone Wolf v. Hitchcock,
187 U. S. 553
(1903), which held that Congress possessed the authority to
abrogate unilaterally the provisions of an Indian treaty. We also
conclude that the changed method of payment is not conclusive with
respect to congressional intent. Although the later Acts of
Congress made less secure provisions for payment to the Tribe for
the lands in question than did the 1901 Treaty, their language with
respect to the reservation status of the opened lands was identical
with or derivative from the language used in that proposed
amendment. [
Footnote 3] The
language was also substantially equivalent to that used in the
executed agreement involved in
DeCoteau. We agree with the
Court of Appeals and the District Court that this language not only
opened the land for settlement, but diminished the boundaries of
the Reservation
pro tanto. [
Footnote 4]
Page 430 U. S. 589
II
The Rosebud Sioux are one of the tribes of Indians of the Sioux
Nation. The Treaty of April 29, 1868, 15 Stat. 635, set aside all
the land in South Dakota west of the Missouri River as the Great
Sioux Reservation, consisting of some 25 million acres. Article 12
of the Treaty provided that no subsequent treaty for the cession of
any part of the reservation would be valid without the written
consent of three-fourths of the adult male Indians on the
reservation. Despite this provision, in 1877, approximately 7.5
million acres, consisting of the Black Hills portion of the Great
Sioux Reservation, were removed from the Reservation by the Act of
February 28, 1877, 19 Stat. 254.
See Sioux Tribe of Indians v.
United States, 97 Ct.Cl. 613 (1942),
cert. denied,
318 U.S. 789 (1943). Of the remaining Reservation, approximately
one-half was "restored to the public domain" under the Act of March
2, 1889, 25 Stat. 896, § 21, [
Footnote 5] while six separate Reservations were carved
out of the remainder, §§ 1-6. Section 2 set apart the Rosebud
Reservation, encompassing what were later organized as three full
counties (Todd, Mellette, and Tripp), a major portion of Gregory
County, and a small portion of Lyman. [
Footnote 6] This Reservation, as originally delimited,
contained over 3.2 million acres.
Page 430 U. S. 590
Around the turn of the century, the "familiar forces" to which
we referred in
DeCoteau v. District County Court led to
demands to open up the Reservation. [
Footnote 7] A provision in the Indian Department
Appropriation Act, Mar. 3, 1901, 31 Stat. 1077, provided:
"[T]he Secretary of the Interior be, and he is hereby,
authorized, in his discretion, to negotiate, through any United
States Indian inspector, agreements with any Indians for the
cession to the United States of portions of their respective
reservations or surplus unallotted lands, any agreements thus
negotiated to be subject to subsequent ratification by
Congress."
Shortly thereafter, Inspector James McLaughlin was instructed by
the Commissioner of Indian Affairs to begin "negotiations with the
Indians of the Rosebud reservation, in South Dakota, for the
cession of the unallotted eastern portion of their reserve." Letter
dated Mar. 19, 1901, from W. A. Jones, Commissioner, Office of
Indian Affairs, Department of Interior. Following meetings with
members of the Tribe during the spring and summer of 1901,
Inspector McLaughlin obtained the written consent of three-fourths
of the
Page 430 U. S. 591
male Indian adults to the cession of some 416,000 acres of
unallotted land in Gregory County for the sum of $1,040,000,
subject to congressional ratification. [
Footnote 8] The negotiated Agreement, however, was never
ratified, [
Footnote 9] "because
of the fact that it provided that the Government should pay for the
lands outright. . . ." 38 Cong.Rec. 1423 (1904) (remarks of Rep.
Burke). [
Footnote 10]
What is important for our purposes is the undisputed fact that
the 1901 Agreement, had it been ratified by Congress, would have
disestablished that portion of the Rosebud Reservation which lay in
Gregory County. Inspector McLaughlin explained to the Tribe that
"[t]he cession of Gregory County" by ratification of the
Agreement
"will leave your reservation a compact and almost square tract,
and would leave your
Page 430 U. S. 592
reservation about the size and area of Pine Ridge Reservation.
[
Footnote 11]"
It is conceded that his description was correct; the effect and
intent of the 1901 Agreement, if ratified, would have been to
change the Reservation boundaries. As we noted in
DeCoteau v.
District County Court, 420 U.S. at
420 U. S. 445,
in construing virtually identical language: "The Agreement's
language . . . was precisely suited to this purpose [of
disestablishment]." In this Agreement, therefore, we have -- unlike
the situation in
Mattz v. Arnett, 412 U.
S. 481 (1973) -- an unmistakable baseline purpose of
disestablishment.
An examination of the legislative processes which resulted in
the 1904 Act convinces us, as it did the lower courts, that this
purpose was carried forth and enacted. Because of the history of
the 1901 Agreement, the 1904 Act cannot, and should not, be read as
if it were the first time Congress had addressed itself to the
diminution of the Rosebud Reservation.
In 1903, new bills were introduced, and subsequently reported
from committee in both chambers of Congress, which proposed
"to adopt a new policy in acquiring lands from the Indians [by]
provid[ing] that the lands shall be disposed of to settlers . . and
to be paid for by the settlers, and the money to be paid to the
Indians only as it is received . . . from the settlers. [
Footnote 12]"
The Senate bill, S. 7390, passed the Senate in February, 36
Cong.Rec. 2748 (1903), but the 57th Congress expired before the
House could give it consideration. In line with the changes in S.
7390, which related to the method of payment, Inspector McLaughlin
was subsequently instructed to go to the Rosebud Reservation to
negotiate a new
Page 430 U. S. 593
agreement. [
Footnote 13]
He explained to the Rosebud Tribe:
"I am here to enter into an agreement which is similar to that
of two years ago, except as to the manner of payment. . . . You
will still have as large a reservation as Pine Ridge after this is
cut off. [
Footnote 14]"
Inspector McLaughlin failed to get three-fourths of the adult
male Indians to consent to this new method of payment, although he
did obtain the consent of a majority, provided that the price to
homesteaders be raised from $2.50 to $2.75 per acre. Agreement of
Aug. 10, 1903. [
Footnote 15]
However,
Page 430 U. S. 594
as Inspector McLaughlin had explained to the Tribe, [
Footnote 16] Congress understood
that it was not bound by the three-fourths consent requirement of
the 1868 Treaty with the Sioux Nation. In
Lone Wolf v.
Hitchcock, 187 U.S. at
187 U. S. 566,
568, this Court, dealing with the validity of a cession of tribal
lands enacted in contravention of a treaty requiring three-fourths
Indian consent, held:
"The power exists to abrogate the provisions of an Indian
treaty, though presumably such power will be exercised only when
circumstances arise which will not only justify the government in
disregarding the stipulations of the treaty, but may demand, in the
interest of the country and the Indians themselves, that it should
do so. When, therefore, treaties were entered into between the
United States and a tribe of Indians, it was never doubted that the
power to abrogate existed in Congress."
"
* * * *"
". . . In any event, as Congress possessed full power in the
matter, the judiciary cannot question or inquire into the motives
which prompted the enactment of this legislation."
Although Inspector McLaughlin failed to garner the signatures of
three-quarters of the Indians in consent of the proposed changes,
Congress understandably relied on this holding as authorizing it to
diminish unilaterally the Reservation boundaries.
In examining congressional intent, there is no indication
Page 430 U. S. 595
that Congress intended to change anything other than the form
of, and responsibility for, payment. In recommending ratification
of the 1901 Agreement, as modified, the accompanying House Report
stated:
"The purpose of this bill is to ratify and amend an agreement
made with the Rosebud Indians in South Dakota by Inspector James
McLaughlin, dated September 14, 1901, providing for the cession to
the United States of the unallotted portion of their lands in
Gregory County, S. Dak., and opening the same to settlement and
entry under the homestead and town-site laws."
"
* * * *"
"There is no question but what the Indians have no use for the
land that is proposed to be ceded by this bill; that the tract is
only a very small portion of the Rosebud Reservation, and is really
only a corner of the reservation, which will be left compact and in
a square tract and a reservation about equal in size to the Pine
Ridge Reservation, in South Dakota. [
Footnote 17]"
On the floor of the House, Congressman Burke, the 1904 Act's
sponsor, in discussing the changes in the Agreement since
Page 430 U. S. 596
1901, made clear that he new bill was concerned only with the
responsibility for payment, 38 Cong.Rec. 1423 (1904):
"Mr. BURKE. . . . In 1901, a treaty was entered into with the
Rosebud Indians on the part of the United States, by which the
Indians agreed to sell to the Government this land for $2.50 per
acre. That treaty was transmitted to Congress, and because of the
fact that it provided that the Government should pay for the lands
outright and then take the chance of the Treasury being reimbursed
by disposing of the lands to settlers, it never got further than
through the Committee on Indian Affairs, which unanimously reported
it favorably. It was never given consideration in the House."
"Toward the concluding days of the last session of Congress, a
new bill was prepared, substantially as this bill now provides, and
that bill provided that the lands should be ceded by the Indians to
the Government, disposed of to settlers under the provisions of the
homestead law, the price to be fixed at $2.50 an acre, as was
provided in the original treaty. . . . This bill is substantially
the same as the bill which I have just referred to. . . . "
The bill itself, as introduced and passed by both Houses,
incorporated the entire text of the 1903 Agreement, which itself
followed the 1901 Agreement except that: (1) the Indians were not
guaranteed any consideration for the land except with respect to
the 16th and 36th sections (school sections), but were to be paid
only as the lands were actually sold to settlers; (2) the United
States did not guarantee to find purchasers, but agreed only to
"act as trustee for said Indians to dispose of said lands."
[
Footnote 18]
In particular, the 1904
Page 430 U. S. 597
Act incorporated verbatim the language of immediate cession of
the 1901 Agreement:
"The said Indians belonging on the Rosebud Reservation, South
Dakota, for the consideration hereinafter named, do hereby cede,
surrender, grant, and convey to the United States all their claim,
right, title, and interest in and to all that part of the Rosebud
Indian Reservation now remaining unallotted, situated within the
boundaries of Gregory County. . . ."
33 Stat. 256. As in
DeCoteau v. District County Court,
420 U.S. at
420 U. S. 445,
this language is "precisely suited" to disestablishment.
Petitioner, however, objects that a "cession" requires bilateral
consent, and the failure of Inspector McLaughlin to gain the
approval of three-quarters of the male adult Indians vitiates any
"cession." As a matter of strict English usage, petitioner is
undoubtedly correct: "cession" refers to a voluntary surrender of
territory or jurisdiction, rather than a withdrawal of such
jurisdiction by the authority of a superior sovereign. But as Mr.
Justice (then Judge) Holmes commented, we are not free to say to
Congress: "We see what you are driving at, but you have not said
it, and therefore we shall go on as before."
Johnson v. United
States, 163 F. 30, 32 (CA1 1908). Congress was simply
repeating verbatim language from a bill ratifying the 1901
Agreement, which had made the proper use of the word "cession"
because the Agreement had been approved by the Tribe. The use of
the word "cession" in the 1904 Act, which was not consented to by
the required extraordinary majority of the Tribe, does not make the
meaning of the Act ambiguous as between diminution of the
Reservation boundaries on the one hand, and merely opening up
designated lands for settlement by non-Indians, on the other. The
word is technically misused, but the meaning is quite clear. It
was
Page 430 U. S. 598
intended to accomplish, in 1904, precisely what it was intended
to accomplish in 1901. Congress was under no misapprehension that
the required portion of the Tribe had in fact approved the treaty.
It knew that, while a majority of the Tribe had approved it, the
required extraordinary majority had not; but it had determined
nonetheless to go ahead and accomplish the same result unilaterally
as the Agreement would have accomplished bilaterally. [
Footnote 19]
The "bill provided that the lands should be ceded by the Indians
to the Government. . . ." 38 Cong.Rec. 1423 (1904) (remarks of Rep.
Burke). It is clear that Congress was relying on
Lone Wolf v.
Hitchcock, 187 U. S. 553
(1903), in making this unilateral declaration. There is nothing in
the changed method of payment, or the failure to obtain a
three-quarters vote from the Indians, which indicates that the
clear intent of the 1901 Agreement to diminish the Reservation
boundaries had changed between 1901 and 1904. [
Footnote 20] The Tribe, moreover, was eventually
paid for the land,
supra at
430 U. S. 588
n. 3.
Page 430 U. S. 599
This implied continuity in purpose from 1901 to 1904 does not,
however, stand alone in indicating congressional intent. Section 4
of the 1904 Act, 33 Stat. 258, provides, in pertinent part:
"[S]ections sixteen and thirty-six of the lands hereby acquired
in each township shall not be subject to entry, but shall be
reserved for the use of the common schools and paid for by the
United States at two dollars and fifty cents per acre, and the same
are hereby granted to the State of South Dakota for such purpose. .
. ."
When North and South Dakota were admitted into the Union, § 10
of the admitting Act, Act of Feb. 22, 1889, 25 Stat. 679, provided,
in pertinent part:
"[U]pon the admission of each of said States into the Union
sections numbered sixteen and thirty-six in every township of said
proposed States . . . are hereby granted to said States for the
support of common schools . . . :
Provided, That the
sixteenth and thirty-sixth sections embraced in permanent
reservations for national purposes
Page 430 U. S. 600
shall not, at any time, be subject to the grants . . . of this
act, nor shall any land embraced in Indian, military, or other
reservations of any character be subject to the grants . . . of
this act until the reservation shall have been extinguished and
such lands be restored to, and become a part of, the public
domain."
The language of § 10 is mandatory: "nor shall" the 16th and 36th
sections of lands within Indian reservations "be subject to the
grants . . . until the reservation shall have been extinguished. .
. ." While Congress would have had the power to establish other
grants,
cf. 43 U.S.C. § 856, the legislative history, in
this case, demonstrates that Congress "included the provision to
implement the grant in the enabling act, and for no other reason."
521 F.2d at 101. [
Footnote
21] Both the House and Senate Reports explicitly noted that the
"school sections" provision of what became the 1904 Act "is in
conformity with the guarantee given to the State of South Dakota by
Congress in the enabling act. . . ." [
Footnote 22] Congress, therefore, clearly thought that it
was acting pursuant to § 10 of the Act of February 22, 1889, and
not
sub silentio adding an additional grant for
Page 430 U. S. 601
school lands located within a continuing reservation. [
Footnote 23] The far more natural
construction, then, is to read a congressional intent to
disestablish Gregory County from the Rosebud Reservation, thereby
making the sections available for disposition to the State of South
Dakota for "school sections" under § 10 of the Act of February 22,
1889. [
Footnote 24]
Page 430 U. S. 602
That it was clearly understood, at least by the Executive
Branch, that the 1904 Act, like the 1901 Agreement, contemplated a
diminution of the Reservation, is apparent from the Rosebud
Proclamation of May 13, 1904, 33 Stat. 2354. In accordance with the
requirement of § 2 of the 1904 Act that the land would
"be disposed of under the general provisions of the homestead
and town-site laws of the United States, and shall be opened to
settlement and entry,"
the Proclamation stated, in pertinent part:
"Whereas by an agreement between the Sioux tribe of Indians on
the Rosebud Reservation, in the State of South Dakota, on the one
part, and James McLaughlin, a United States Indian Inspector, on
the other part, amended and ratified by act of Congress . . . ,
the said Indian tribe ceded, conveyed, transferred,
relinquished, and surrendered, forever and absolutely, without any
reservation whatsoever, expressed or implied, unto the United
States of America,
all their claim, title, and interest of
every kind and character in and to the unallotted lands
embraced in the following described tract of country now in the
State of South Dakota, . . ."
"
* * * *"
"NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United
States of America, by virtue of the power vested in me by law, do
hereby declare and make known that all of the lands so as aforesaid
ceded by the Sioux tribe of Indians of the Rosebud Reservation . .
. will, on the eighth day of August, 1904, at 9 o'clock a.m., in
the manner herein prescribed and not otherwise, be opened to entry
and settlement and to disposition under the general provisions of
the homestead and townsite laws of the United States."
(Emphasis supplied.) The opening portion of the Proclamation is
an unambiguous, contemporaneous, statement, by the Nation's Chief
Executive,
Page 430 U. S. 603
of a perceived disestablishment of Gregory County. It reflects,
we believe, the clear import of the congressional action in the
1904 Act.
In sum, an examination of the process leading up to the
enactment of the 1904 Act, as well as the language and legislative
history, leads us, as it led the Court of Appeals and the District
Court, to the firm conclusion that congressional intent was to
exclude Gregory County from the Rosebud Reservation. [
Footnote 25]
Although the subsequent "jurisdictional history,"
DeCoteau
v. District County Court, 420 U.S. at
420 U. S. 442,
is not entirely clear, the single most salient fact is the
unquestioned actual assumption of state jurisdiction over the
unallotted lands in Gregory County since the passage of the 1904
Act,
see 375 F. Supp. at 1084; Amended Complaint � 21.
[
Footnote 26] Since
state
Page 430 U. S. 604
jurisdiction over the area within a reservation's boundaries is
quite limited, 18 U.S.C. § 1151;
McClanahan v. Arizona State
Tax Comm'n, 411 U. S. 164
(1973);
Wlliams v. Lee, 358 U. S. 217
(1959);
Worcester v.
Georgia, 6 Pet. 515 (1832), the fact that neither
Congress nor the Department of Indian Affairs has sought to
exercise its authority over this area or to challenge the State's
exercise of authority is a factor entitled to weight as a part of
the "jurisdictional history." [
Footnote 27] The longstanding
Page 430 U. S. 605
assumption of jurisdiction by the State over an area that is
over 90% non-Indian, both in population and in land use, not only
demonstrates the parties' understanding of the meaning of the Act,
but has created justifiable expectations which should not be upset
by so strained a reading of the Acts of Congress as petitioner
urges. [
Footnote 28] We are
simply unable to conclude that the intent of the 1904 Act was other
than to disestablish.
III
Having determined that the 1904 Act carried forth the intent to
disestablish which was unquestionably manifested in the 1901
Agreement, our examination of the 1907 and the
Page 430 U. S. 606
1910 Acts is made easier. None of the parties really disputes
that the intent of the three Acts was the same. [
Footnote 29] Because the later Acts do vary
in some respects, however, we shall explain briefly why we find a
continuity of intent through the 1907 and the 1910 Acts. [
Footnote 30]
The "familiar forces" at work pressing for the opening of Indian
lands did not cease with the cession of Gregory County. By late
1906, Congressman Burke was preparing a bill dealing with the "sale
of that part of the reservation located in Tripp County." [
Footnote 31] Inspector McLaughlin
was instructed to proceed to the Rosebud Reservation to negotiate
an agreement for land in Tripp County which, when "ceded, should be
disposed of under the general provisions of the homestead and
townsite laws of the United States," and he was given suggested
terms, "similar to those in the disposal
Page 430 U. S. 607
of the ceded lands in Gregory County. . . . " [
Footnote 32] Inspector McLaughlin's
negotiations produced virtually the same result as in 1904. A 1907
Agreement, signed by a majority, but not by three-fourths, of the
adult male Indians provided that the Indians
"do hereby cede, grant and relinquish to the United States all
claim, right, title, and interest in and to all that part of the
Rosebud Indian Reservation [in Tripp and Lyman Counties] except
such portions thereof as have been, or may hereafter be, allotted
to Indians. [
Footnote
33]"
The Secretary of the Interior recommended that Congress ratify
the Agreement, Letter from E. A. Hitchcock,
supra,
n 33, and the Senate
Committee on Indian Affairs reported a ratification bill out,
S.Rep. No. 6831, 59th Cong., 2d Sess. (1907). By this time,
however, the House had already passed a second bill introduced by
Congressman Burke which did not incorporate the Agreement, 41
Cong.Rec. 3103-3105 (1907) (H.R. 24987), although it did
substantially incorporate the terms of the Agreement, as noted by
Congressman Burke,
id. at 3104:
"The bill is substantially in accordance with an agreement which
has just been made with the Indians, signed by [a majority]. . . .
It is along the line of the bill which passed in the Fifty-eighth
Congress for the sale of that portion of this same reservation that
is located in Gregory County. "
Page 430 U. S. 608
". . . They will have left, after this land is disposed of, a
reservation that is substantially 50 miles square. . . . [
Footnote 34]"
The operative language of the bill, subsequently passed by the
Senate without debate and enacted into law, 34 Stat. 1230,
provided:
"[T]he Secretary of the Interior be, and he is hereby,
authorized and directed, as hereinafter provided, to sell or
dispose of all that portion of the Rosebud Indian Reservation in
South Dakota [in Tripp and Lyman Counties], except such portions
thereof as have been, or may hereafter be, allotted to Indians. . .
."
As the parties recognize, the substance of the 1907 Act is
identical to the 1904 Act. Section 2 provides for the disposition
of lands under the "general provisions of the homestead and
town-site laws," while § 3 specifics land purchase prices, with the
proviso that
"any lands remaining unsold after the said lands have been
opened to entry for seven years may be sold to the highest bidder
for cash, without regard to the above minimum limit of price.
[
Footnote 35]"
Section 6 provides for the purchase by the United States of
sections 16 and 36 of the lands in each township and their transfer
to South Dakota for "the use of the common schools." [
Footnote 36] Sections 5 and 7
provide that the United States is to act as trustee for the Indians
to dispose of the lands and to collect and dispense the proceeds.
[
Footnote 37]
In virtually all respects, then, except for the operative
language in § 1 replacing the Agreement language, the 1907
Page 430 U. S. 609
Act is a functional twin of the 1904 Act. And, as the
legislative comments make clear,
supra at
430 U. S.
607-608, the change in § 1 language was not intended to
modify or change the purposes or operation of the 1904 Act.
[
Footnote 38] We agree with
the Court of Appeals' conclusion, 521 F.2d at 104:
"Nothing in the language of the 1907 Act or in the surrounding
circumstances and legislative history indicates a change in that
congressional determination to alter the reservation boundaries
which we have found in the 1904 Act."
The 1907 Act, like the 1904 Act which preceded it,
disestablished the land in Tripp and Lyman Counties from the
Rosebud Reservation.
The pressures for more land had not yet expended themselves with
the passage of the 1907 Act. In late 1908, Senator Gamble submitted
a new bill authorizing the sale and disposition of a portion of the
surplus and unallotted lands in Mellette County and in a strip
located in the eastern part of Todd County, S. 7379, 43 Cong.Rec.
65 (1908). The accompanying Senate Report noted, in proposing the
opening to settlement of an area comprising about 900,000 acres,
that "[t]he present area of the Rosebud Indian Reservation
aggregates 1,800,000 acres." S.Rep. No. 887, 60th Cong., 2d Sess.,
1 (1909) (emphasis supplied). [
Footnote 39] The school sections
Page 430 U. S. 610
provision was again included in the bill, "to be paid for by the
Government in conformity with the provisions of the act admitting
the State of South Dakota into the Union."
Id. at 2.
[
Footnote 40] Senator Gamble
was unable to have the Senate consider the bill before the term of
Congress expired, and Inspector McLaughlin was once again
dispatched to conduct negotiations with the Rosebud Tribe
concerning the Gamble bill. [
Footnote 41] This time he did not seek to negotiate an
agreement with the Indians, but reported back to the Secretary of
the Interior the "practically unanimous" concurrence of the
Indians
"in the opening of the northern strip, provided the two
Page 430 U. S. 611
tiers of townships in the eastern part of Meyer [
sic]
County remain a part of the diminished reservation. [
Footnote 42]"
New bills were introduced similar in purpose to the original
Gamble bill. [
Footnote 43]
The Secretary of the Interior recommended to Congress that the bill
open only Mellette County, and not the eastern part of Todd County,
and that the bill also include a provision subjecting the land to
be opened "for a period of twenty-five years to all the laws of the
United States prohibiting the introduction of intoxicants into the
Indian country." [
Footnote
44] These changes were made in S. 183,
see S.Rep. No.
68, 61st Cong., 2d Sess. (1910). The Report noted,
id. at
2:
"The present area of the Rosebud Indian Reservation aggregates
about 1,800,000 acres. The lands proposed to be opened to
settlement under the provisions of this bill embrace an area of
about 830,000 acres. . . ."
"
* * * *"
". . . It also provides that the Secretary of the Interior, in
his discretion, may permit Indians who have allotments within the
area proposed to be opened to relinquish such allotments and to
receive in lieu thereof allotments anywhere within the reservation
proposed to be diminished."
"Sections 16 and 36 of the lands in each township are not to be
disposed of, but are reserved for the use of the common schools of
the State, and these lands are to be paid for by the Government in
conformity with the provisions
Page 430 U. S. 612
of the act admitting the State of South Dakota into the Union. .
. ."
"
* * * *"
"Although Congress has full power to enact legislation of this
character without the consent of the Indians, it was felt the
Indians should be fully advised as to the provisions of the pending
measure, and their views should be asked in regard thereto."
The bill was passed by the Senate on January 17, 1910, 45
Cong.Rec. 1065-1066, 1075 (1910), and the House Committee on Indian
Affairs decided to adopt the Senate bill, its Report noting:
"The Rosebud Indian Reservation, when set aside as a separate
reservation under the Sioux act of 1889, contained something over
3,000,000 acres of land. [Then follows a description of the 1904
Act and the 1907 Act, observing that the 1907 Act was
'substantially in the same form as the bill now under
consideration. . . .']"
"The area comprised in the present bill is about 800,000 acres.
. . .
There will still be left a reservation containing about
1,000,000 acres, and as the Indians have all been allotted,
there is no occasion for continuing a reservation larger than
it will be when Mellette County is disposed of. [
Footnote 45]"
The bill then passed the House with amendments,
id. at
5473, and, after conference to reconcile differences in the House
and Senate bills not material here, the bill became law on May 30,
1910. [
Footnote 46]
The 1910 Act is substantially similar to the 1907 Act, and
Page 430 U. S. 613
uses identical operative language authorizing and directing the
Secretary of the Interior
"to sell and dispose of all that portion of the Rosebud Indian
Reservation [in present day Mellette County] except such portions
thereof as have been or may be hereafter allotted to Indians. . .
."
36 Stat. 448. Because of the substantive similarity of the Acts,
no useful purpose would be served in recounting the similar
provisions contained in the 1910 Act. Two new provisions, however,
do warrant mention. The first is a proviso in § 1, stating:
"[A]ny Indians to whom allotments have been made on the tract to
be ceded may, in case they elect to do so before said lands are
offered for sale, relinquish same and select allotments in lieu
thereof on the diminished reservation."
This proviso, on its face, is a strong indication of the
continuing intent to disestablish the affected areas, first
manifested in the 1901 Agreement. The second is the provision in §
10 of the 1910 Act, included at the suggestion of the Secretary of
the Interior, subjecting the opened land "for a period of
twenty-five years to all the laws of the United States prohibiting
the introduction of intoxicants into the Indian country." As there
existed, in 1910, an outstanding prohibition against the
introduction of intoxicants into "Indian country,"
see Act
of July 23, 1892, 27 Stat. 260, 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 country,"
because not in the Reservation. [
Footnote 47]
Page 430 U. S. 614
These added provisions, as well as the clear legislative history
of the 1910 Act, reflect strongly the continued intent to diminish
the Reservation boundaries. We conclude that
Page 430 U. S. 615
the 1910 Act continued the policies of the prior two Acts, and
Mellette County was thereby detached from the Reservation.
IV
The intent of Congress in the 1904, the 1907, and the 1910 Acts
was to change the boundaries of the original 1889 Rosebud
Reservation. Much has changed since then, and, if Congress had it
to do over again, it might well have chosen a different course.
But, as we observed in
DeCoteau v. District County Court,
420 U.S. at
420 U. S. 449:
"[O]ur task here is a narrow one. . . . [W]e cannot remake
history." [
Footnote 48]
Affirmed.
[
Footnote 1]
Act of Apr. 23, 1904, 33 Stat. 254; Act of Mar 2, 1907, 34 Stat.
1230; Act of May 30, 1910, c. 260, 36 Stat. 48.
[
Footnote 2]
The written consent of a majority of the Tribe was obtained
prior to the 1904 and 1907 Acts,
infra at
430 U. S. 593,
430 U. S. 607;
no written consent was obtained prior to the 1910 Act, but the
"
practically unanimous'" concurrence of the Indians was
reported, infra at 430 U. S.
610.
[
Footnote 3]
The Tribe was eventually paid for all of the land opened to
settlement in the three Acts, with the exception of some 4,600
acres, which were returned to the Tribe pursuant to an "Order of
Restoration" dated January 12, 1938.
See Indian
Reorganization Act, 48 Stat. 984.
[
Footnote 4]
[
Footnote 5]
This termination of Reservation status was agreed to by
three-fourths of the adult male Indians on the Great Sioux
Reservation, S.Ex.Doc. 51, 51st Cong., 1st Sess., 234, 242
(1890).
[
Footnote 6]
Under § 12, 25 Stat. 892,
"at any time after lands have been allotted to all the Indians
of any tribe as herein provided, or sooner, if in the opinion of
the President it shall be for the best interests of said tribe, it
shall be lawful for the Secretary of the Interior to negotiate with
such Indian tribe for the purchase and release by said tribe, in
conformity with the treaty or statute under which said reservation
is held of such portions of its reservation not allotted as such
tribe shall, from time to time, consent to sell, on such terms and
conditions as shall be considered just and equitable between the
United States and said tribe of Indians, which purchase shall not
be complete until ratified by Congress. . . ."
This reproduced, verbatim, the language of the General Allotment
Act, § 5, Act of Feb. 8, 1887, 24 Stat. 389.
[
Footnote 7]
See H.R.Rep. No. 486, 56th Cong., 1st Sess., 1
(1900):
"The people are anxious that this particular part of the
reservation be opened and opportunity given for settlement and
development of that region of the State. . . ."
"The committee is informed the Indians are willing to treat for
a cession of the lands in question."
[
Footnote 8]
Agreement, dated Sept. 14, 1901, between James McLaughlin, on
the part of the United States, and the Sioux Tribe of Indians
belonging on the Rosebud Reservation:
"ARTICLE I. The said Indians belonging on the Rosebud
Reservation, South Dakota, for the consideration hereinafter named,
do hereby cede, surrender, grant, and convey to the United States
all their claim, right, title, and interest in and to all that part
of the Rosebud Indian Reservation now remaining unallotted,
situated within the boundaries of Gregory County, South Dakota. . .
. "
"ART. II. In consideration of the land ceded, relinquished, and
conveyed by Article I of this agreement, the United States
stipulates and agrees to expend for and pay to said Indians, in the
manner hereinafter provided, the sum of one million and forty
thousand (1,040,000) dollars."
S.Doc. No. 31, 57th Cong., 1st Sess., 28 (1901).
[
Footnote 9]
In 1902, a ratification bill passed the Senate and was reported
favorably in the House. 35 Cong.Rec. 5024 (1902); H.R.Rep. No.
2099, 57th Cong., 1st Sess. (1902). The bill was never given any
consideration on the floor of the House.
[
Footnote 10]
See also S.Rep. No. 3271, 57th Cong., 2d Sess., 2
(1903); 36 Cong.Rec. 2748 (1903) (remarks of Sen. Gamble).
Congressman Burke and Senator Gamble were the sponsors of the
various bills concerning the Rosebud Reservation. As the Court of
Appeals noted, and as all parties appear to agree: "The problem in
the Congress was not jurisdiction, title, or boundaries. It was,
simply put, money." 521 F.2d 87, 94.
[
Footnote 11]
Proceedings of a Council with the Indians of Rosebud
Reservation, Sept. 5, 1901, in S.Doc. No. 31, 57th Cong., 1st
Sess., 12 (1901);
see also Proceedings of a Council with
the Indians of the Ponca Creek District, Rosebud Reservation, Apr.
13, 1901, in S.Doc. No 31,
supra at 10.
[
Footnote 12]
H.R.Rep. No. 3839, 57th Cong., 2d Sess., 1-2 (1903) (to
accompany H.R. 17467); S.Rep. No. 3271, 57th Cong., 2d Sess., 2
(1903) (to accompany S. 7390).
[
Footnote 13]
Letter from the Commissioner of Indian Affairs to James
McLaughlin, U.S. Indian Inspector, June 30, 1903, App. 461-462:
"In a joint request to the Department dated April 4, 1903, the
members of the South Dakota delegation in Congress . . . asked that
an Inspector be detailed to proceed to the Rosebud Indian
reservation, in South Dakota, for the purpose of negotiating a new
agreement with the Indians thereof for the cession of the
unallotted portion of their reserve embraced in Gregory County,
along the lines proposed in Senate Bill No. 7390. . . . "
"The essential features of said S. 7390, with which you are
already familiar, are as follows:"
"(1) That instead of paying the Indians the lump sum of
$1,040,000 for the surplus Gregory County lands as provided in the
agreement of September 14, 1901, the lands be disposed of to
settlers under the provisions of the homestead and town-site laws,
excepting sections 16 and 36 or the equivalent thereof, at not less
than $2.50 per acre, the proceeds arising from such sale to be paid
to the Indians."
In light of
Lone Wolf v. Hitchcock, 187 U.
S. 553 (1903), the House and Senate Committees
understood that consent of the Indians to the change was not
mandatory, but, "in view of the [1868] treaty stipulation . . . ,
it would be better to require the treaty as amended to be accepted
by the Indians before it becomes effective."
H.R.Rep. No. 3839,
supra at 2; S.Rep. No. 3271,
supra at 2.
[
Footnote 14]
Minutes of Council held at Rosebud Agency, S.D. with the Sioux
Indians belonging on the Rosebud Reservation 21-22 (July 30, 1903);
see also id. at 37 (Aug. 8, 1903);
id. at 50
(Aug. 10, 1903).
[
Footnote 15]
The operative language of the new Agreement was identical to
that contained in the 1901 Agreement:
"The said Indians belonging on the Rosebud Reservation, South
Dakota, for the consideration hereinafter named, do hereby cede,
surrender, grant, and convey to the United States all their claim,
right, title, and interest in and to all that part of the Rosebud
Indian Reservation now remaining unallotted, situated within the
boundaries of Gregory County. . . ."
[
Footnote 16]
Minutes of Council held at Rosebud Agency, S.D. with the Sioux
Indians belonging on the Rosebud Reservation 21-22 (July 30, 1903);
see also id. at 37 (Aug. 8, 1903);
id. at 50
(Aug. 10, 1903).
[
Footnote 17]
H.R.Rep. No. 443, 58th Cong., 2d Sess., 1, 3 (1904)
(accompanying H.R. 10418). The Report,
id. at 4, in
discussing
Lone Wolf v. Hitchcock, supra, considered
whether ratification of the amended Agreement, which had not
received the approval of three-fourths of the adult male Indians,
was appropriate, and concluded that it was:
"It appearing, therefore, that more than three-fourths of the
male adult Indians signed the original treaty, that more than a
majority were willing to sell at a less [
sic] price than
provided in this bill, and the fact that the Department recommends
the passage of the measure, provided the Indians can be insured of
a lump sum equal to $1,040,000, the amount mentioned in the
original treaty, and the committee having fixed a price that it is
believed will more than insure this amount it is thought wise and
no hardship or even injustice to the Indians to have such a measure
passed, and for that reason recommend the passage of the bill."
[
Footnote 18]
Despite this "uncertain sum" proviso, § 2 of the Act, 33 Stat.
258, suggests that Congress viewed this land as disestablished
immediately:
"That all lands herein ceded and opened to settlement under this
Act, remaining undisposed of at the expiration of four years from
the taking effect of this Act, shall be sold and disposed of for
cash, under rules and regulations to be prescribed by the Secretary
of the Interior, not more than six hundred and forty acres to any
one purchaser."
[
Footnote 19]
Congress was explicitly aware that it was acting pursuant to the
holding in
Lone Wolf v. Hitchcock, 187 U.
S. 553 (1903).
See H.R. Rep. No. 443,
supra, n 17, at
3-4; 38 Cong.Rec. 2829 2832 (1904) (remarks of Rep. Burke).
[
Footnote 20]
We noted in
DeCoteau v. District County Court,
420 U. S. 425
(1975), the fact that Congress had there ratified a sale for a sum
certain. These two fact -- Indian consent and a sum-certain payment
-- aided us in determining that congressional intent was to
terminate the Reservation. But, as the Court of Appeals in the
instant case recognized,
"[t]he determination of disestablishment . . . rests upon
congressional intent, as to which the method of payment, whether
lump-sum or otherwise, is but one of many factors to be
considered."
521 F.2d at 102.
DeCoteau rested upon precisely such a
determination, and neither the sum certain nor the consent was
considered dispositive one way or the other. The statutory language
discussed in
DeCoteau is similar to the language of the
1904 Act. While the 1904 Act, to be sure, lacks a sum-certain
payment, as well as approval by three-fourths of the adult male
Indians, it, in common with
DeCoteau, starts from the form
of an agreement, which was fully explained to the Rosebud Tribe
both in 1901 and in 1904. The congressional recognition "that the
Agreement could not be altered," 420 U.S. at
420 U. S. 438,
was not present in this case for the simple reason that, between
the Sisseton-Wahpeton Agreement and the 1904 Rosebud Act,
Lone
Wolf v. Hitchcock, supra, had been decided. Nor is there any
"clear retreat from previous congressional attempts to vacate the .
. . Reservation in express terms,"
DeCoteau v. District County
Court, supra at
420 U. S. 448,
as there was in
Mattz v. Arnett. Finally, as is discussed,
infra at
430 U. S.
603-605, as in
DeCoteau, the State has
exercised unquestioned jurisdiction over the disputed area since
the passage of the enactment an indication of the intended purpose
of the Act that was not present in
Mattz v. Arnett, 412
U.S. at
412 U. S. 505.
Moreover, other factors, not present in
DeCoteau, press
for a finding of disestablishment. Here, for example, unlike the
situation in
DeCoteau, we are not faced with an Act which,
if it disestablished the area under question, would terminate the
entire reservation, 420 U.S. at
420 U. S.
446-447. Considered together, we feel that those
disestablishment factors present in
DeCoteau but not
present here are counterbalanced by the disestablishment factors
present both here and in
DeCoteau, as well as those
factors present here, but not in
DeCoteau.
[
Footnote 21]
See, e.g., 35 Cong.Rec. 3187 (1902) (remarks of Sen.
Gamble):
"Under the provisions of the enabling act authorizing the
admission of the State of South Dakota into the Union, sections 16
and 36 in every township were reserved for school purposes. This
provision did not apply to permanent Indian reservations, but
became operative when the Indian title was extinguished and the
lands restored to and became a part of the public domain."
38 Cong.Rec. 1423 (1904):
"Mr. FINLEY. Then, as I understand the gentleman, he bases the
wisdom or equity for this provision upon the enabling act admitting
South Dakota into the Union."
"Mr. BURKE. Yes."
"Mr. FINLEY. And not otherwise?"
"Mr. BURKE. No."
[
Footnote 22]
H.R.Rep. No. 3839, 57th Cong., 2d Sess., 2 (1903); S.Rep. No
3271, 57th Cong., 2d Sess., 2 (1903); H.R.Rep. No. 443, 58th Cong.,
2d Sess., 2 (1904); S.Rep. No. 651, 58th Cong., 2d Sess., 2 (1904).
See also n 40,
infra.
[
Footnote 23]
Moreover, as discussed in
n 24,
infra under
Minnesota v.
Hitchcock, 185 U. S. 373
(1902), it was a possibility that the lands in Gregory County,
although disestablished from the Reservation by the 1904 Act, were
not thereby converted into "public lands." Section 10 of the Act of
February 22, 1889, would not, in that case, apply to the lands even
though disestablished from the Reservation.
[
Footnote 24]
Petitioner urges that the "school sections" provision indicated
that Congress was not disestablishing the county, since, upon
disestablishment, the sections would have automatically passed to
South Dakota under § 10 of the Act of February 22, 1889. We
disagree. Section 4 of the 1904 Act not only provides for the
grants of the sections to the State, but also for the method and
amount of payment. The section, therefore, is not superfluous.
See also n.
23
supra.
The United States, as
amicus curiae, argues that
Minnesota v. Hitchcock, supra, supports the position of
petitioner.
Hitchcock, however, does not deal with the
question of whether the utilization of an explicit "school
sections" clause demonstrates that Congress must have intended the
Reservation boundaries to have continued undiminished. Rather, the
issue in
Hitchcock was quite different: it dealt with
whether ceded lands automatically became subject to an earlier
Act's "school sections" provision. The Court concluded that "none
of these ceded lands passed under the school grant to the State"
because, due to a trust imposed upon them, they had a preceding
status that precluded their becoming "public lands." 185 U.S. at
185 U. S. 395,
185 U. S.
401-402. This preceding status could exist even if the
lands were disestablished from a reservation.
United States v.
Pelican, 232 U. S. 442,
232 U. S. 449
(1914);
cf. Ash Sheep Co. v. United States, 252 U.
S. 159,
252 U. S. 166
(1920). As recognized by the Court of Appeals,
"the fact that a beneficial interest is retained does not erode
the scope and effect of the cession made, or preserve to the
reservation its original size, shape, and boundaries."
521 F.2d at 102. The question of whether lands become "public
lands" under
Hitchcock and
Ash Sheep is therefore
logically separate from a question of disestablishment.
United
States v. Pelican, supra. As the issue is not before us, we
need not decide whether or not the lands became "public lands."
[
Footnote 25]
As noted by the Court of Appeals, 521 F.2d at 102 n. 54:
"Congressional action with reference to Gregory County shortly
after the passage of the 1904 Act also confirm the conclusions. By
the Act of February 7, 1905, ch. 545, 33 Stat. 700, Congress
granted settlers an extension of time in which to establish their
residence upon the opened Gregory County lands. The title and the
body of the Act contain the following language:"
"lands which were
heretofore a part of the Rosebud
Indian Reservation within the limits of Gregory County, South
Dakota."
"33 Stat. 700 (emphasis added).
See S.Rep. No. 2760,
58th Cong., 3d Sess., 1 (1905); H.R.Rep. No. 4198, 58th Cong., 3d
Sess., 1 (1905); 39 Cong.Rec. 1578 (1905) (remark of Sen.
Gamble)."
The 1905 Act, passed a short time after the 1904 Act by the same
Congress, and dealing with the same subject matter, is additional
evidence of the congressional intent to disestablish Gregory County
from the Rosebud Reservation in the 1904 Act. There are, moreover,
references in the legislative history of the 1907 and 1910 Acts,
discussed,
infra at
430 U. S. 608,
430 U. S. 609,
and nn. 38, 39, and at
430 U. S. 611,
430 U. S. 612,
which reinforce the conclusion that Congress, in 1904,
disestablished Gregory County.
[
Footnote 26]
See also State v. White Horse, ___ S.D. ___,
231 N.W.2d
847 (1975). This factor, of course, applies with equal force to
the counties affected by the 1907 Act and by the 1910 Act,
infra at
430 U. S.
605-615.
[
Footnote 27]
As already noted, the District Court found that,
"[f]rom the time these acts were passed, these [four] counties
have been treated as outside the Rosebud Sioux Reservation by the
settlers, their descendants, the State of South Dakota and the
federal courts."
375 F. Supp. at 1084. This factual finding is unchallenged. Both
parties rely on other post-Act indicia of jurisdictional
assumption, but they are, at best, confusing and unenlightening.
The Indian Reorganization Act of 1934, 48 Stat. 984, and the
Department of Interior's reaction thereto, urged perhaps most
fervently by the United States as
amicus curiae, fail to
establish with anything like clarity the view of Congress, or the
Department of the Interior, in the 1930's, with respect to land
affected by such Acts as the 1904 Act involved herein. Under § 3 of
the Indian Reorganization Act, the Secretary of the Interior was
authorized "to restore to tribal ownership the remaining surplus
lands of any Indian reservation heretofore opened. . . ." 48 Stat.
984. Under § 8, however, it was stated that
"[n]othing contained in this Act shall be construed to relate to
Indian holdings of allotments or homesteads upon the public domain
outside of the geographic boundaries of any Indian reservation now
existing. . . ."
48 Stat. 986. Section 8, relied heavily upon by the United
States in its
amicus brief, on its face refers to nothing
more than "Indian holdings of allotments or homesteads" outside the
boundaries of a reservation. This comports with the definition of
"Indian country" in 18 U.S.C. § 1151. In any case, no clear view on
the part of the relevant agencies that land opened up under
uncertain-sum agreements remained reservation land exists.
Compare Interior Department Opinion, 54 I.D. 559, 560
(1934),
with Opinion of Acting Solicitor, 56 I.D. 330, 333
(1938). As was observed,
n
24,
supra, the question of whether lands became public
lands is separate from the question of intent to disestablish
boundaries. The relevant materials presented with respect to the
Indian Reorganization Act of 1934 simply do not present any clear
treatment of the scope of the Rosebud Reservation, and hence are of
minimal utility in our examination. Nor do we have a history of
"repeated recognition of the reservation status of the land after
[the 1904 Act] by the Department of the Interior and by Congress."
Mattz v. Arnett, 412 U.S. at
412 U. S. 505.
The material presented by the parties reveals no consistent, or
even dominant, approach to the territory in question. In light of
the clear assumption of jurisdiction over the past 70 years by the
State of South Dakota of the territory now in dispute, and
acquiescence by the Tribe and Federal Government, this sporadic,
and often contradictory, history of congressional and
administrative actions in other respects carries but little
force.
[
Footnote 28]
Cf. Massachusetts v. New York, 271 U. S.
65,
271 U. S. 87,
271 U. S. 94
(1926);
Martin v.
Waddell, 16 Pet. 367,
41 U. S.
411-412,
41 U. S. 414,
41 U. S. 418
(1842). A showing of longstanding assumption of jurisdiction is, in
the related area of state boundary disputes, entitled to
considerable weight.
See Rhode Island v.
Massachusetts, 4 How. 591,
45 U. S. 636
(1846);
Louisiana v. Mississippi, 202 U. S.
1,
202 U. S. 53-54
(1906);
Michigan v. Wisconsin, 270 U.
S. 295,
270 U. S. 308
(1926);
Massachusetts v. New York, supra at
271 U. S. 95;
Arkansas v. Tennessee, 310 U. S. 563,
310 U. S. 569
(1940). In
United States v.
Stone, 2 Wall. 525,
69 U. S. 537
(1865), involving a boundary between the Delaware Indian
Reservation and land set aside for a United States Government
military post this Court stated:
"In the case of private persons, a boundary surveyed by the
parties and acquiesced in for more than thirty years could not be
made the subject of dispute by reference to courses and distances
called for in the patents under which the parties claimed, or on
some newly discovered construction of their title deeds. We see no
reason why the same principle should not apply in the present case.
. . ."
[
Footnote 29]
While, of course, urging that there was no congressional intent
to disestablish, petitioner asserts that "[t]he substance of all
three statutes is the same, as is much of the language." Brief for
Petitioner 40. And again,
id. at 41:
"The 1904 Act differs in format from the 1907 and 1910 Acts, but
not in substance. . . . As a result of these and other substantive
changes [between the 1901 Agreement and the 1904 Act], the 1904
Act, in legal effect as well as language, is the same as the 1907
and 1910 Acts. In all three statutes, the land was opened for sale
to settlers with the proceeds credited to the Indians only as
received."
[
Footnote 30]
The dissenters feel that the 1907 and 1910 Acts "are far simpler
for present purposes," since "[t]hey contain neither words of
cession nor words of termination."
Post at
430 U. S. 620.
But the dissenters also recognize, as did the parties, that the
1904 Act is "properly regard[ed] as the crucial Act. . . ."
Post at
430 U. S. 626.
The 1907 and the 1910 Acts must be considered in context, and an
important part of that context is the 1901 Agreement and the 1904
Act.
[
Footnote 31]
Reference to letter of Nov. 22, 1906, from Rep. Burke to the
Department of the Interior, Office of Indian Affairs, in letter of
Dec. 5, 1906, from Commissioner F. E. Leupp, to Inspector James
McLaughlin. Bills were introduced in December 1906, 41 Cong.Rec. 15
(1906) (Burke bill, H.R. 20547);
id. at 50-51 (Gamble
bill, S. 6618).
[
Footnote 32]
Letter of Dec. 5, 1906, from Commissioner F. E Leupp,
supra. Inspector McLaughlin was told that it was "but
right to the Indians also that you should explain to them" that
Lone Wolf v. Hitchcock, 187 U. S. 553
(1903),
"vests in Congress the right to open their lands without their
consent; that the desire of the Department in sending you to talk
the matter over with the Indians is to obtain from them their views
of the terms on which the opening ought to be made. . . ."
[
Footnote 33]
Letter from E. A. Hitchcock, Secretary of the Interior, to the
Chairman, Committee on Indian Affairs, House of Representatives,
Feb. 14, 1907 (enclosing Agreement), in H.R.Rep. No. 7613, 59th
Cong., 2d Sess, 4 (1907).
[
Footnote 34]
In response to a question which inquired whether "the provisions
of the treaty [have] been inserted in this bill," Congressman Burke
replied: "I may say to the gentleman that they have been." 41
Cong.Rec. 3104 (1907).
[
Footnote 35]
See the discussion,
n 18,
supra, of the 1904 Act's comparable
provision.
[
Footnote 36]
The discussion,
supra at
430 U. S.
599-601, with respect to the "school sections" provision
of the 1904 Act, applies equally here.
[
Footnote 37]
This, too, is substantively identical to the 1904 Act,
supra at
430 U. S.
596.
[
Footnote 38]
In one particular, the language of the 1907 Act reinforces our
conclusion with respect to the 1904 Act. The 1907 Act, 34 Stat.
1230, was to open
"all that portion of the Rosebud Indian Reservation in South
Dakota lying south of the Big White River and east of range
twenty-five west of the sixth principal meridian. . . ."
This description would encompass Gregory County as well as Tripp
County, unless the 1904 Act had disestablished Gregory County from
the Reservation.
See H.R. Rep. No. 7613, 59th Cong., 2d
Sess., 1 (1907) (the bill "affects all that portion of the
reservation east of range 25 of the fifth principal meridian south
of the Big White River . . . "); S.Rep. No. 6838, 59th Cong., 2d
Sess., 1 (1907).
[
Footnote 39]
Mellette and Todd Counties, the two counties unaffected by the
1904 and 1907 Acts, compose approximately 1.8 million acres,
whereas the original (1889) Reservation encompassed somewhat over
3.2 million acres. A letter, dated January 26, 1909, from James
Garfield, Secretary of the Interior, to Senator Gamble, S.Rep. No.
887, 60th Cong., 2d Sess., 3 (1909), clearly noted the perceived
disestablishment of major portions of the Rosebud Reservation by
the prior two Acts:
"The Rosebud Reservation has been reduced very rapidly during
the last few years, and intimations have reached this department
from trustworthy sources that there is danger that the land
available for allotment may be exhausted if too large a reduction
is made at this time. I do not believe, therefore, that the strip
of land on the east of the present diminished reservation should be
opened yet."
[
Footnote 40]
See also 45 Cong.Rec. 1068 (1910) (colloquy between
Sen. Gamble and Sen. Crawford):
"MR. GAMBLE. . . . [T]he Government agreed to reserve these
lands and to pay for them not only by law, but under the enabling
act admitting the State of South Dakota to the Federal Union."
"
* * * *"
"MR. CRAWFORD. Sections 16 and 36, to which the Senator refers,
are held from the settler, and are given to the State to keep good
the pledge made to the State by the Government under the enabling
act when the State was admitted into the Union. . . ."
[
Footnote 41]
The Secretary of the Interior believed that "the views of the
Indians should be procured before the bill is finally acted on,"
although recognizing "the fact that Congress can enact legislation
of this character without the consent of the Indians interested. .
. ." Letter dated Jan. 26, 1909, from James Garfield, Secretary of
the Interior, to Sen. Gamble, in S Rep. No. 887,
supra at
3.
[
Footnote 42]
Letter dated Apr. 29, 1909, from James McLaughlin to the
Secretary of the Interior. For the negotiations with the Indians,
see Transcript of Council held at Rosebud Agency, Mar. 11,
1909; Proceedings of Council held with the Indians of the Rosebud
Reservation, Apr. 21 and 26, 1909.
[
Footnote 43]
See 44 Cong.Rec. 132 (1909) (S. 183);
id. at
2013 (H.R. 9544); 45 Cong.Rec. 10 (1909) (H.R. 12437).
[
Footnote 44]
Letter dated Jan. 13, 1910, from R. A. Ballinger, Secretary of
the Interior, to Sen. Clapp. S.Rep. No. 68, at 5.
[
Footnote 45]
H.R.Rep. No. 332, 61st Cong., 2d Sess., 2 (1910) (accompanying
H.R. 12437) (emphasis supplied).
[
Footnote 46]
Act of May 30, 1910, c. 260, 36 Stat. 448; 45 Cong.Rec. 6437
(1910) (Conference Report passes House);
id. at 6326
(Conference Report passes Senate).
[
Footnote 47]
See id. at 5464 (colloquy between Rep. Bartholdt and
Rep. Butler):
"MR. BARTHOLDT. But if the lands are allotted, it is no longer
an Indian reservation."
"MR. BUTLER. If the lands are allotted, it will be no longer an
Indian reservation. . . . It is where, as I understand, the Indian
has always lived and where he is going to live, and I believe in
keeping the sale of liquor out of his neighborhood."
Under
Dick v. United States, 208 U.
S. 340,
208 U. S. 359
(1908), Congress was entitled to attach liquor prohibitions,
reasonable in duration, on non-Indian land which Indians were
likely to frequent. Congress explicitly was adding this provision
under the authority of
Dick. See Letter dated
Jan. 13, 1910, from R. A. Ballinger, Secretary of the Interior, to
Rep. Burke.
The petitioner, as well as the United States, as
amicus
curiae, relies on
In re Heff, 197 U.
S. 488 (1905). As suggested by the United States, Brief
for United States as
Amicus Curiae 40 n. 28:
"Although the courts below suggested that the provision would be
unnecessary if the Reservation were continued . . . , that
suggestion is erroneous. As the debates show, 45 Cong.Rec.
5460-5464 (1910), members of Congress were fully aware of this
Court's decision in
In re Heff, 197 U. S.
488, holding that Indian allottees were subject to state
liquor laws."
This reliance is misplaced.
Heff did not deal with the
question of the sale of liquor to Indian allottees on a reservation
where liquor was forbidden by the Act of July 23, 1892, 27 Stat.
260. Rather,
Heff dealt with the sale of liquor to Indian
allottees under the Act of January 30, 1897, 29 Stat. 506, which
prohibited the sale of liquor (without restriction on location) to
Indians.
Heff, in short, dealt with an Act which
prohibited the sale of liquor, anywhere, based on the status of a
person, while the prohibition of sales on Indian country under the
1892 Act applied to areas, regardless of the status of the person.
(Insofar as is relevant, the 1892 Act states that no "intoxicating
liquor or liquors of whatever kind shall be introduced, under any
pretense, into the Indian country.") This distinction was
recognized in
Dick v. United States, supra at
208 U. S. 352,
which, noting
In re Heff, observed that the Indians
involved in
Dick were citizens of the United States, but
then went on to discuss the "Federal liquor statute forbidding the
introduction of intoxicating drinks into the Indian country." Thus,
under the 1892 Act, as recognized in
Dick, liquor was
flatly prohibited from introduction into the Indian country, a
prohibition which prevented sale to all persons. Indian country,
however, did not apply to territory on which
"the Indian title had been extinguished, and over which and over
the inhabitants of which . . . the jurisdiction of the State . . .
was full and complete."
Dick v. United States, supra at
208 U. S. 352.
Land remaining within the boundaries of a reservation, of course,
would not be subject to the "full and complete" jurisdiction of the
State.
See Williams v. Lee, 358 U.
S. 217,
358 U. S. 223
(1959). While, prior to the statutory definition in 18 U.S.C. §
1151, the defined areas of Indian country may have been a bit
vague,
see Seymour v. Superintendent, 368 U.
S. 351,
368 U. S. 357
(1962),
Dick was the most recent pronouncement on the
subject at the time of the 1910 Act, and clearly defined Indian
country with reference to state jurisdiction.
See United States
v. Pelican, 232 U. S. 442,
232 U. S. 449
(1914);
Perrin v. United States, 232 U.
S. 478,
232 U. S. 482
(1914) (discussing the congressional power "to prohibit the
introduction of intoxicating liquors into an Indian reservation . .
.");
cf. United States v. Mazurie, 419 U.
S. 544,
419 U. S.
554-555 (1975). The liquor provision in § 10 of the 1910
Act, accordingly, is a strong indication that Congress did not view
the affected areas as "Indian country," but, rather, as
disestablished from the Reservation.
[
Footnote 48]
The dissent speculates expansively on the possible adverse
consequences of today's decision,
post at
430 U. S.
630-633. Most, if not all, of these consequences involve
issues not presented by this case. To the extent that members of
the Rosebud Tribe are living on allotted land outside of the
Reservation, they, too, are on "Indian country," within the
definition of 18 U.S.C. § 1151, and hence subject to federal
provisions and protections. Our decision in
Morton v.
Ruiz, 415 U. S. 199
(1974), moreover, that federal benefits and programs shall be made
available to tribal members living "on or near" the reservation,
surely diminishes the specter of a "sharp reduction in the federal
aid available to members of the Rosebud Tribe living off the
reservation."
Post at
430 U. S. 631.
Certainly that effect is much less clear than it would have been in
DeCoteau v. District County Court, where the entire
reservation was extinguished. The combined effect of 18 U.S.C. §
1151 and
Morton v. Ruiz, supra, is that many of the
dissent's parade of horribles are nothing more than just that.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE STEWART join, dissenting.
The Court holds today that, in 1904, 1907, and 1910, Congress
broke solemn promises it had made to the Rosebud
Page 430 U. S. 616
Sioux Tribe and took from them, without any guarantee of
compensation, three-quarters of their reservation. Although it was
suggested at argument, Tr. of Oral Arg. 120, that the only
consequence of such a holding would be to preclude the Tribe from
continuing to exercise the jurisdiction granted to it by its
approved constitution and bylaws, [
Footnote 2/1] in fact, much more is at stake. This case
involves not just the rights of the Tribe, but also the rights of
approximately 2,000 Indians living in the disputed area, and the
right of the United States to continue to administer the disputed
area as part of the Rosebud Reservation. [
Footnote 2/2]
See 430 U.
S. infra. In addition, the
Page 430 U. S. 617
ramifications of today's decision may extend to a large number
of other reservations throughout the Nation.
See ibid. I
therefore feel constrained to explain at length why the decision
is, in my view, wholly unjustifiable.
Until today, the effect on reservation boundaries of Acts
disposing of surplus reservation land was well settled. The general
rule, entitled to "the broadest possible scope," is that, in
interpreting these Acts, "legal ambiguities are resolved to the
benefit of the Indians."
DeCoteau v. District County
Court, 420 U. S. 425,
420 U. S. 447
(1975). Congressional intent therefore must be "clear" before this
Court will find that a reservation established by Congress (or the
Executive) was disestablished.
Mattz v. Arnett,
412 U. S. 481,
412 U. S. 505
(1973). Applying these principles, the Court has found
disestablishment when Congress ratified a treaty by which Indians
agreed to sell all interest in part or all of a reservation,
DeCoteau v. District County Court, supra, or when Congress
employed express words of termination,
Mattz v. Arnett,
supra at
412 U. S. 504
n. 22 (dictum). But when, as here, Congress merely "opened" a
reservation -- that is, made reservation land available to
non-Indians and acted as a sales agent on behalf of the Indians --
the reservation boundaries have been held to be unaffected.
Mattz v. Arnett, supra; Seymour v. Superintendent,
368 U. S. 351
(1962). In
DeCoteau, the Court clearly distinguished the
two situations, observing:
"[A purchase-and-sale Act] is not a unilateral action by
Congress, but the ratification of a previously negotiated
agreement, to which a tribal majority consented. [It] does not
merely open lands to settlement; it also appropriates and vests in
the tribe a sum certain . . . in payment for the express cession
and relinquishment of 'all' of the
Page 430 U. S. 618
tribe's 'claim, right, title, and interest' in the unallotted
lands. The statute in
Mattz, by contrast, benefited the
tribe only indirectly, by establishing a fund dependent on
uncertain future sales of its land to settlers."
420 U.S. at
420 U. S. 448.
Today, however, the Court obliterates this distinction, and, by
holding against the Tribe when the evidence concerning
congressional intent is palpably ambiguous, erodes the general
principles for interpreting Indian statutes.
I
What is perhaps most striking about the Rosebud Acts, in light
of the interpretation the Court places upon them, is the absence of
any express provision disestablishing the Reservation. As we
observed in
Mattz: "Congress has used clear language of
express termination when that result is desired." 412 U.S. at
412 U. S. 504
n. 22. We cited three examples in
Mattz: 15 Stat. 221,
which stated that "the Smith River reservation is hereby
discontinued"; 27 Stat. 63, which stated that "a portion of the
Colville Indian Reservation . . . is hereby, vacated and restored
to the public domain"; and 33 Stat. 218, enacted just two days
before the first of the Rosebud Acts, which stated that "the
reservation lines of the said Ponca and Otoe and Missouria Indian
reservations . . . are hereby abolished." The very Act that created
the Rosebud Reservation provides yet another example, for, in that
Act, Congress expressly "restored to the public domain" part of the
Great Sioux Reservation.Act of Mar. 2, 1889, § 21, 25 Stat. 896.
And other examples abound. [
Footnote
2/3]
The Acts in question contain no similar language. The Act of
April 23, 1904, 33 Stat. 254, is a peculiarly drafted statute. In
substance, it is no different from the
Page 430 U. S. 619
statutes considered in
Mattz and
Seymour; it
opens lands on the Reservation to white settlers, guarantees to the
Indians the proceeds from the sale of the lands, but does not
commit the United States to purchasing the land. [
Footnote 2/4] In form, however, the Act "amended
and modified," and then "ratified," the 1901 Agreement between
Inspector McLaughlin and the Rosebud Sioux in which the Tribe
agreed to sell the lands in question to the United States for a
lump sum; this Agreement had been rejected by the Congress in 1902.
The "amendments" which Congress
unilaterally inserted
obviously were substantial, since they transformed the transaction
from a
DeCoteau-type purchase to a
Mattz-type
"opening." But because the ratification format was used, the 1904
Act contains language from the 1901 Agreement which provided that
the
"Indians belonging on the Rosebud Reservation, South Dakota, for
the consideration hereinafter named, do hereby cede, surrender,
grant, and convey to the United States all their claim, right,
title, and interest"
in the unallotted lands in Gregory County.
In
DeCoteau, we stated that this language, when
contained in an agreement approved by the Indians and ratified by
Congress, is "precisely suited," 420 U.S. at
420 U. S. 445,
to terminating a reservation. But I cannot agree with the Court,
ante at
430 U. S. 597,
that the language is equally well suited to disestablish the
Reservation here. Its usage may simply mean that Congress found
that working from an earlier document -- in this case the 1901
Agreement -- was easier than drafting a new law. Whereas, in
DeCoteau, the key phrase expressed the Indians'
understanding of what they were surrendering and the Government's
understanding of what it was acquiring, here, the Indians had not
agreed to this transaction, and the Government disclaimed any
intent to purchase anything other than school
Page 430 U. S. 620
lands,
see n 4,
supra. Indeed, as the Court concedes,
ante at
430 U. S. 597,
as a matter of English usage, the words "cede, surrender, grant,
and convey," make no sense in the context of an "agreement" to
which the seller has not assented. Thus the Court ultimately rests
its decision on an asserted ability to "
see what [Congress is]
driving at,'" even though Congress has "`not said it.'"
Ibid.
The 1907 and 1910 Acts are far simpler for present purposes.
They contain neither words of cession nor words of termination.
They simply "authorized and directed" the Secretary of the Interior
"to sell or dispose of" the specified lands "under the general
provisions of the homestead and town-site laws of the United
States." Act of Mar. 2, 1907, §§ 1, 2, 34 Stat. 1230; Act of May
30, 1910, §§ 1, 2, c. 260, 36 Stat. 448. These statutes are
virtually identical to the law construed in
Seymour v.
Superintendent, which also "authorized and directed" the
Secretary "to sell or dispose of" specified lands "under the
provisions of the homestead laws." Act of Mar. 22, 1906, §§ 1, 3,
c. 1126, 34 Stat. 80-81. They are quite similar to the Act at issue
in
Mattz, which "declared" specified lands
"to be subject to settlement, entry, and purchase under the laws
of the United States granting homestead rights and authorizing the
sale of mineral, stone, and timber lands."
Act of June 17, 1892, 27 Stat. 52. They bear no resemblance,
however, to the statutes cited in
Mattz as examples of
"clear language of express termination."
II
Since congressional intent must be unambiguous before we can
conclude that Congress terminated part of an Indian reservation,
the absence of any express provision to this effect in the Rosebud
Acts strongly militates against the interpretation the Court places
on those Acts. But I need not rely on congressional silence alone
-- eloquent as it may be -- to reject the Court's interpretation.
For both the text of the
Page 430 U. S. 621
Acts and the circumstances surrounding their enactment
affirmatively point to the opposite conclusion.
A
The text of the Acts provides numerous indications that Congress
did not intend to remove the opened areas from the Reservation.
First, the Acts granted the Indians a variety of rights in those
areas. All three Acts, for example, permitted Indians with
allotments in the counties to be opened to retain their allotments,
[
Footnote 2/5] and the 1907 and
1910 Acts also allowed certain Indians without allotments in these
counties to secure allotments there. [
Footnote 2/6] All three Acts also granted the Indians a
beneficial interest in all the opened lands, since the Acts simply
made the United States "trustee for [the] Indians to dispose of
said lands." [
Footnote 2/7] And the
1904 and 1910
Page 430 U. S. 622
Acts authorized the Executive, before opening the counties to
settlers, to reserve some lands for Indian schools, religious
missions, and service agencies. [
Footnote 2/8] Of course, it is possible that Congress
intended to remove the opened counties from the Reservation while
leaving the Indians with a host of rights in the counties. But this
interpretation of the statutes is surely strained, especially since
nothing in the legislative history indicates that such an anomalous
result was desired. Thus, it is far more sensible to view these
grants to the Indians as evidence that Congress did not intend to
terminate the Reservation immediately.
This interpretation is supported by other provisions in the Acts
as well. In the 1907 and 1910 Acts, for example, Congress directed
that payments received from sale of the lands to be opened were to
be deposited "to the credit of the Indians belonging and having
tribal rights on the Rosebud Reservation." [
Footnote 2/9] If the Rosebud Acts also removed the
opened counties from the Reservation, then the members of the Tribe
living in Gregory County, opened in 1904, were not entitled to
share in the proceeds of the 1907 or 1910 sales, and the members of
the Tribe living in Tripp County, opened by the Act of 1907, were
not entitled to the 1910 proceeds, at the very least. [
Footnote 2/10] Again, it is possible that
Congress intended
Page 430 U. S. 623
this result. But, absent contrary evidence, it is far more
reasonable to assume that Congress meant for all members of the
Tribe living on the original Reservation to profit from the sales,
since, prior to the Rosebud Acts, they all had equal rights in the
opened lands. Thus, the manner in which Congress defined the class
of beneficiaries in the 1907 and 1910 Acts indicates that Congress
believed that the Indians living in the opened counties still
"belonged" to the Reservation after the lands were opened.
Finally, all the statutes contain an important guide to
interpretation that the Court ignores. Each Act states, in almost
identical terms, that
"nothing in this 'agreement shall be construed to deprive the .
. . Indians of the Rosebud Reservation, South Dakota, of any
benefits to which they are entitled under existing treaties or
agreements, not inconsistent with the provisions of this
agreement.' [
Footnote 2/11]"
These provisions constitute clear congressional commands to
interpret the Rosebud Acts so as to minimize conflicts with the
Treaty of 1889. Yet the Court ignores these provisions, and
maximizes the conflict, by construing the Acts to limit not just
the Rosebud Sioux's land use, but also their jurisdiction.
[
Footnote 2/12]
Page 430 U. S. 624
B
The Court's construction of the Rosebud Acts is also untenable
when the Acts are placed in historical context. Just as we held in
Mattz that the statute at issue there was to be
interpreted "from the overview of the earlier General Allotment Act
of 187, 24 Stat. 388," 412 U.S. at
412 U. S. 496,
so, too, must the Rosebud Acts be construed from this perspective.
As we observed in
Mattz:
"[The policy of the General Allotment Act] was to continue the
reservation system and the trust status of Indian
Page 430 U. S. 625
lands, but to allot tracts to individual Indians for agriculture
and grazing. When all the lands had been allotted and the trust
expired, the reservation could be abolished. Unallotted lands were
made available to non-Indians with the purpose, in part, of
promoting interaction between the races and of encouraging Indians
to adopt white ways."
Ibid. (footnote omitted). This policy reflected
Congress' attempt "to reconcile the Government's responsibility for
the Indians' welfare with the desire of non-Indians to settle upon
reservation lands."
DeCoteau v. District County Court, 420
U.S. at
420 U. S. 432.
Because the "familiar forces,"
id. at
420 U. S. 431,
at work on Congress demanded land for settlers, Congress opened the
reservations. But because these forces were not overly concerned
with the niceties of reservation boundaries, the reservation status
of the opened areas was preserved until the trust period expired,
to insure federal protection of the Indians while they were being
"civilized" through contacts with white settlers. Thus, to
interpret the Rosebud Acts as terminating three-fourths of the
Rosebud Reservation is to set them at war with Congress' general
policy toward Indians at the time the Acts were approved.
III
The Court ultimately rests its construction of the Acts on an
analysis of their legislative history. While there may be
occasional passages in the history that suggest an intent to
terminate, [
Footnote 2/13] I
cannot agree that such an intent is established with anything
approaching the requisite clarity.
Page 430 U. S. 626
In the first place, the legislative history of the Rosebud Acts
is extraordinarily sparse. The 1904 Act, which the Court properly
regards as the crucial Act, was introduced by Representative Burke
of South Dakota on January 19, 1904, 38 Cong.Rec. 902-903; was
reported out of the Committee on Indian Affairs, which Mr. Burke
chaired, two days later,
id. at 1010; and passed the House
on February 1,
id. at 1469, after a debate that consumes
only six pages in the Congressional Record,
id. at
1423-1429. [
Footnote 2/14] The
bill was transmitted to the Senate the same day; was reported out
of the Committee chaired by Senator Gamble of South Dakota three
days later,
id. at 1601; and was called up, amended, and
approved by the Senate without debate on April 18,
id. at
4988. [
Footnote 2/15] The House
concurred in the Senate amendments the following day without any
discussion.
Id. at 5155. The 1907 Act received
Page 430 U. S. 627
even less congressional attention. It was approved within one
month after it was introduced without any debate in the Senate, 41
Cong.Rec. 3323 (1907), and with a debate in the House that occupies
only one page in the Record,
id. at 3104. [
Footnote 2/16] Only the 1910 Act was
seriously debated by Congress, and these debates focused almost
exclusively on the method by which the opened lands would be
distributed to white settlers. 45 Cong.Rec. 1066-1071, 5456-5473
(1910).
In light of the brevity of the debates, it is not surprising
that there is a paucity of relevant materials. The Court finds just
two quotations from the debates,
ante at
430 U. S. 596,
430 U. S. 608,
and three quotations from the Committee Reports,
ante at
430 U. S. 595,
430 U. S. 611,
430 U. S. 612,
that directly bear on the disestablishment issue. [
Footnote 2/17] What the Court cannot find,
however, is particularly telling. Unlike the debates in
Mattz, which revealed that "the establishment of the
reservation . . . was viewed as a mistake and an injustice," 412
U.S. at
412 U. S. 500,
there were no expressions of hostility toward the existence or size
of the Rosebud Reservation. Nor were there any statements
indicating that Congress intended to deviate from its general
policy of preserving reservations or to abandon its role as
guardian of the Indians living in the opened counties. Indeed,
although Congress was
Page 430 U. S. 628
aware that the Rosebud Acts initiated a new policy toward
surplus lands [
Footnote 2/18] --
one which removed the Government from the role of buyer and the
Indians from the role of seller -- at no point in the debates did
anyone discuss the consequences of this change on Reservation
boundaries.
The poverty of the Court's analysis is best revealed by its
treatment of the history of the crucial 1904 Act. The Court begins
with
"the undisputed fact that the 1901 Agreement, had it been
ratified by Congress, would have disestablished that portion of the
Rosebud Reservation which lay in Gregory County."
Ante at
430 U. S. 591.
Its review of the legislative history then leads it to conclude
that "there is no indication that Congress intended to change
anything other than the form of, and responsibility for, payment."
Ante at
430 U. S.
594-595. But the fact that Congress did not expressly
repudiate all of the consequences of an Agreement to which it was
not a party and which it had refused to ratify hardly establishes
that Congress affirmatively intended those consequences to result
from the very different transaction it devised in 1904. [
Footnote 2/19] It is at least
Page 430 U. S. 629
equally plausible that Congress did not explain the effect of
the 1904 Act because it assumed that the Act would have precisely
the same effect as earlier nonpurchase surplus land Acts such as
those considered in
Mattz: the lands would be opened and
the reservations preserved. Nor is the fact that Congress adopted
the format of the 1901 Agreement especially probative, since this
may have been done simply out of convenience.
Ultimately, what the legislative history demonstrates, as
cocounsel for the State has aptly concluded, is that Congress
manifested an "almost complete lack of . . . concern with the
boundary issue." [
Footnote 2/20]
The issue was of no great importance in the early 1900's, as it was
commonly assumed that all reservations would be abolished when the
trust period on allotted lands expired. There was no pressure on
Congress to accelerate this timetable, so long as settlers could
acquire unused land. Accordingly, Congress simply did not focus on
the boundary question. Its indifference is perhaps best manifested
by the fact that, in legislation concerning the Reservation enacted
immediately subsequent to the Rosebud Acts, Congress at times
referred to the opened counties as part of the Reservation, and at
times referred to them as no longer part of the Reservation.
[
Footnote 2/21] For the Court to
find in this confusion
Page 430 U. S. 630
and indifference a "clear" congressional intent to disestablish
the Reservation is incomprehensible.
IV
The most obvious and immediate consequence of today's decision
is jurisdictional. Even though the people of South Dakota have
expressly declined to assume jurisdiction over Indian country,
[
Footnote 2/22] from now on,
crimes (or torts) committed by the Indians on nontrust land in the
opened counties will be within the jurisdiction of the State. This
will create an "impractical pattern of checkerboard jurisdiction,"
in which
"law enforcement officers . . . will find it necessary to search
tract books in order to determine whether criminal jurisdiction
over each particular offense . . . is in the State or Federal
Government."
Seymour v. Superintendent, 368 U.S. at
368 U. S. 358.
In addition, even while on their trust lands, the almost 2,000
enrolled Indians in the opened counties will be generally subject
to "state law otherwise applicable to all citizens of the State,"
Mescalero Apache Tribe v. Jones, 411 U.
S. 145,
411 U. S. 149
(1973), even if the same law could not be applied to Reservation
Indians because it would "interfere with reservation
self-government or would impair a right granted or reserved
Page 430 U. S. 631
by federal law,"
id..at
411 U. S. 148.
This is reason enough to be troubled by today's decision.
But beyond these jurisdictional consequences, the holding today
places a grave cloud over the property rights of both the Tribe and
the Indians living off the newly contracted Reservation. With
respect to the Tribe, 4,600 acres in the opened counties were
returned to it pursuant to the Indian Reorganization Act of 1934,
48 Stat. 984, after the Secretary found, in the words of § 3 of the
Act, that these were "the remaining surplus lands of [an] Indian
reservation" opened before June 18, 1934. But if the opened
counties were not part of the Reservation, then the Secretary's
right to return the land to the Tribe is at least open to question.
[
Footnote 2/23] More seriously,
the Indians living on trust lands in the opened counties have
assumed that § 2 of the Reorganization Act, which extended the
trust period on "Indian lands," applied to their property. But if
these counties were not part of a reservation, this assumption is
dubious, at best, since § 8 of the Act states that the Act shall
not
"be construed to relate to Indian holdings of allotments . . .
upon the public domain outside of the geographic boundaries of any
Indian reservation now existing. . . ."
Should it be determined that the trust period was not extended,
the State of South Dakota could claim crushing amounts of back
taxes.
Finally, today's decision may result in a sharp reduction in the
federal aid available to members of the Rosebud Tribe living off
the Reservation. The Bureau of Indian Affairs has been
administering the opened counties as part of the Reservation,
see n 2,
supra, and, in requesting appropriations for the
Reservation Indians, has included Indians living in the
Page 430 U. S. 632
opened counties, Brief for United States as
Amicus
Curiae 37-38. In addition, we have been advised by the
Association on American Indian Affairs
et al., as
amici curiae, that the Rosebud Tribe has received a large
amount of federal aid pursuant to a variety of federal programs.
Brief 31-39. The Association reports that, in the past, the Tribe
has been able to expend these monies for programs in the opened, as
well as the closed, counties because the federal agencies have
viewed all the counties as part of the Reservation.
Ibid.
But in light of today's decision, the Tribe's ability to use
federal funds to benefit tribal members living in these counties is
in serious doubt. [
Footnote
2/24]
Nor are these potential consequences limited to the Rosebud
Reservation. The Rosebud Acts were described by their sponsors as
the beginning of a new policy with respect to surplus lands.
See n 18,
supra. During the decade following the enactment of the
first Rosebud Act, Congress passed 21 other statutes that opened
surplus reservation lands to settlers. [
Footnote 2/25] If the Rosebud Acts diminished the
Rosebud Reservation,
Page 430 U. S. 633
then the boundaries of more than a score of other reservations
must be in doubt.
Because I can find no principled justification for inflicting
manifold injuries on the Rosebud Sioux Indians and for jeopardizing
the rights of numerous other tribes, I respectfully dissent.
[
Footnote 2/1]
The constitution of the Rosebud Sioux Tribe, approved by the
Secretary of the Interior in 1935, App. 1396-1397, states in Art. I
that
"[t]he jurisdiction of the Rosebud Sioux Tribe . . . shall
extend to the territory within the original confines of the Rosebud
Reservation boundaries as established by the act of March 2, 1889.
. . ."
There is some confusion in the record concerning the
jurisdictional history of the disputed area. At the conclusion of
his lengthy opinion, the District Judge stated that
"the State of South Dakota has treated the [disputed] counties .
. . as portions of the state over which the State of South Dakota
can exercise jurisdiction since the passage of [the] acts."
375 F.
Supp. 1065, 1083 (SD 1974). But contrary to the Court's
suggestion,
ante at
430 U. S.
604-605, n. 27, this statement is hotly disputed insofar
as it implies that the Tribe has conceded jurisdiction. The Tribe
claims it "has consistently exercised jurisdiction over Indians on
all parts of the reservation." Reply Brief for Petitioner 2b. The
United States agrees, Brief for United States as
Amicus
Curiae 32 n. 22, and has provided a number of examples,
id. at 23a-32a.
[
Footnote 2/2]
The United States reports that it has treated the disputed areas
as part of the Reservation, and that it maintains or funds child
welfare programs, burial assistance, outpatient clinics, and
housing in these areas.
Id. at 37-38.
See also
Letter from the Acting Area Director, Aberdeen, S.D. Bureau of
Indian Affairs, to Neil Proto, Dept. of Justice, Aug. 23, 1974,
App. 1405-1409, detailing these services.
[
Footnote 2/3]
The National Indian Law Library's compilation of
Allotment/Cession Statutes, Doc. No. 002279, contains 11 additional
examples, taken from statutes enacted between 1888-1913.
[
Footnote 2/4]
The United States did agree, in § 4 of the Act, to purchase
sections 16 and 36 of Gregory County and to grant these sections to
the State for school purposes. The significance of this grant is
discussed in
430
U.S. 584fn2/12|>n. 12,
infra.
[
Footnote 2/5]
1904 Act, § 1, Art. I; 1907 Act, § 1; 1910 Act, § 1.
[
Footnote 2/6]
The 1907 Act provided in § 2 that, before opening the lands, the
Secretary of the Interior
"may permit Indians who have an allotment within the Rosebud
Reservation to relinquish such allotment and to receive in lieu
thereof an allotment anywhere within said reservation, and he shall
also allot one hundred and sixty acres of land to leach child . . .
belonging on the Rosebud Reservation who has not heretofore
received an allotment."
The fact that these allotments were to be made before the county
was opened to settlers indicates that they could be taken from the
lands to be opened.
See also H.R.Rep. No. 7613, 59th
Cong., 2d Sess., 3 (1907) ("The bill further provides that . . .
the Indians within the reservation may relinquish allotments and
select allotments in any other portion of the reservation,
including the tract affected by this bill"). (Emphasis
added.) The 1910 Act is even clearer in this regard; it excludes
from the opened county lands that "have been
or may be
hereafter allotted to Indians." (Emphasis added.)
Significantly, the 1901 Agreement, which, if ratified, would
have partially terminated the Reservation, did not contain any
provision for new or in-lieu allotments in the tract to be
ceded.
[
Footnote 2/7]
1904 Act, § 6; 1907 Act, § 8; 1910 Act, § 11.
See also
United States v. Brindle, 110 U. S. 688,
110 U. S. 693
(1884). Although as the Court notes,
ante at
430 U. S.
596-597, n. 18, Congress did attempt to assure that the
beneficial interest eventually would be extinguished, the Acts
contain no guarantee. Indeed, the Indians retained an interest in
4,600 acres until 1938, when these lands were restored to the
Tribe.
[
Footnote 2/8]
1904 Act, § 2; 1910 Act, § 1 (second proviso). The 1910 Act, in
§ 1, also reserved timberland to the Indians, although there was a
dispute in Congress as to whether any such land existed.
Compare 45 Cong.Rec. 5471 (1910) (remarks of Rep. Burke)
with S.Rep. No. 68, 61st Cong., 2d Sess., 3 (1910). The
provision in the 1904 Act reserving these lands was not contained
in the original Agreement.
[
Footnote 2/9]
1907 Act, § 5; 1910 Act, § 7.
[
Footnote 2/10]
If the Rosebud Acts disestablished the Reservation, then
arguably the Indians in Tripp County were not entitled to share in
the 1907 proceeds either. By the time those proceeds were deposited
"to the credit of the Indians belonging and having tribal rights on
the Rosebud Reservation," Tripp County had already been opened --
and therefore, under the Court's view, removed from the Reservation
-- by Act and Presidential Proclamation. Under this view, the
Indians living in Mellette County, opened in 1910, would not have
been entitled to the proceeds from the 1910 sales.
[
Footnote 2/11]
1904 Act, § 1, Art. V; 1907 Act, § 8; 1910 Act, § 11.
[
Footnote 2/12]
The Court concludes that two other provisions in the Acts
support its interpretation. First, it notes,
ante at
430 U. S.
599-601,
430 U. S. 608,
that, in all three Acts, Congress agreed to purchase two sections
of the opened counties for school purposes.
See 430
U.S. 584fn2/4|>n. 4,
supra. Under the enabling Act
admitting the Dakotas to the United States, Act of Feb. 22, 1889, §
10, 25 Stat. 679, Congress granted these sections to the State when
a reservation was to be "extinguished and such lands [are] restored
to, and becom[e] a part of, the public domain." Based on ambiguous
statements in the legislative history,
e.g., H.R.Rep. No.
443, 58th Cong., 2d Sess., 2 (1904) (the school provisions are "in
conformity with . . . the enabling act"), the Court concludes that
the grants in the Rosebud Acts were included "
to implement the
grant in the enabling act and for no other reason.'" Ante
at 430 U. S. 600.
But if that were true, the provisions in question would have been
unnecessary, since the grant in the enabling Act was
self-executing. Minnesota v. Hitchcock, 185 U.
S. 373, 185 U. S.
392-393 (1902). Indeed, in 1902, the House Committee on
Indian Affairs had reached this conclusion with respect to the
proposed bill ratifying the 1901 Agreement, and, accordingly, it
had deleted the school provisions from the Senate version of the
bill. H.R.Rep. No. 2099, 57th Cong., 1st Sess., 1 (1902). Since the
Committee included school provisions in the subsequent Rosebud
Acts, e.g., H.R.Rep. No. 443, supra at 2, it
apparently believed that the change in the nature of the
transaction meant that Congress was no longer extinguishing the
Reservation and restoring the land to the public domain. Nothing in
the legislative history suggests, as the Court seems to imply,
ante at 430 U. S. 601
n. 24, that Congress thought it was accomplishing the former, but
not the latter.
Second, the Court notes,
ante at
430 U. S.
613-615, that § 10 of the 1910 Act subjected the opened
lands "
to all the laws of the United States prohibiting the
introduction of intoxicants into the Indian country.'" The Court
reasons that, if Congress believed the Reservation would remain
intact this provision was unnecessary, since the Act of July 23,
1892, 27 Stat. 260, already prohibited the introduction of
intoxicants into "Indian country." Ante at 430 U. S. 614
n. 47. But, in 1910, the definition of "Indian country" was
unsettled, and Congress may have feared that patented land within a
reservation was nevertheless not Indian country under Bates v.
Clark, 95 U. S. 204
(1877), because Indian title had been extinguished. Nothing in
Dick v. United States, 208 U. S. 340
(1908), on which the Court relies, ante at 430 U. S. 614
n. 47, is to the contrary, as Dick involved ceded lands as
to which the United States and the Indians had agreed federal laws
would be applicable.
[
Footnote 2/13]
The statements that most clearly suggest an intent to terminate
are fully intelligible only to those with a knowledge of the
geography of the Reservation. For example, in the House Committee
Report on the 1904 Act, the Committee stated:
"There is no question but what the Indians have no use for the
land that is proposed to be ceded by this bill; that the tract is
only a very small portion of the Rosebud Reservation, and is really
only a corner of the Reservation, which will be left compact and in
a square tract. . . ."
By consulting a map, one discovers that, without Gregory County
-- the tract in question -- the Rosebud Reservation would be
"compact" and "square."
See also 41 Cong.Rec. 3104 (1907)
(remarks of Rep. Burke: "They will have left, after this land is
disposed of, a reservation that is substantially 50 miles square");
S.Rep. No. 68, 61st Cong., 2d Sess., 2 (1910) ("The present area of
the Rosebud Indian Reservation aggregates about 1,800,000 acres");
H.R.Rep. No. 332, 61st Cong., 2d Sess., 2 (1910) ("There will still
be left a reservation containing about 1,000,000 acres, and . . .
there is no occasion for continuing a reservation larger than it
will be when Mellette County is disposed of.").
[
Footnote 2/14]
In the preceding session of Congress, Representative Burke had
introduced an identical bill, 36 Cong.Rec. 2409 (1903), which was
approved by his Committee two days later,
id. at 2473, but
never reached the House floor.
[
Footnote 2/15]
Senator Gamble had introduced a similar bill the preceding year,
id. at 2434, had obtained Committee approval in two days,
id. at 2498; and Senate approval, without debate six days
later,
id. at 2747-2748. He reintroduced the bill on
January 25, 1904, 38 Cong.Rec. 1100, but the House bill was
approved before the Senate could act on Senator Gamble's bill.
See id. at 1877.
[
Footnote 2/16]
Representative Burke and Senator Gamble each had introduced
similar bills in December, 1906, 41 Cong. Rec 15, 50-51. After an
agreement was reached between the Tribe and Inspector McLaughlin on
January 21, 1907, Representative Burke introduced a new bill,
id. at 1782. On February 14, 1907, the Office of Indian
Affairs recommended that the agreement be approved (even though the
Indians had not assented), and the bill was reported out of the
House Committee that same day,
id. at 3004. Two days
later, it passed the House.
Id. at 3105.
On February 18, the Senate Committee sent to the Senate a
substitute version of the 1906 Gamble bill.
Id. at 3207.
By that time, however, the House had already approved the second
Burke bill, and the Senate amended and approved that bill on
February 19,
id. at 3323.
[
Footnote 2/17]
The Court also quotes some discussions bearing on the school
lands and liquor law provisions.
See 430
U.S. 584fn2/12|>n. 12,
supra.
[
Footnote 2/18]
See, e.g., H.R.Rep. No. 443, 58th Cong., 2d Sess., 2
(1904) ("[T]hese bills present a new idea . . . , and . . . will
establish a new policy and be a departure from the policy that has
long since prevailed").
[
Footnote 2/19]
Although the Court states that the "
problem in the Congress
[with respect to the 1901 Agreement] was not jurisdiction, title,
or boundaries. It was, simply put, money,'" ante at
430 U. S. 591
n. 10, the historical evidence is not nearly so clear. In the
Senate, the concern with the 1901 Agreement was not with the fact
that the United States was expending money to acquire the lands,
but with its failure to obtain reimbursement from settlers. After
much debate, however, the Senate ultimately rejected an amendment
that would have required settlers to purchase the opened lands from
the United States, 35 Cong.Rec. 4971 (1902), and approved the
agreement, id. at 5024. The House, on the other hand,
never even debated the ratification bill, and thus we have no
first-hand knowledge of the basis for the opposition in that body.
All of the statements that the Court relies on were made by
proponents of the 1901 Agreement in connection with the 1903 and
1904 bills. Ante at 430 U. S. 591,
and n. 10. Moreover, the fact that the House apparently was
unwilling to authorize the United States to purchase the lands and
recoup the costs from the settlers suggests that money was not the
sole concern.
[
Footnote 2/20]
Comment, New Town
et al.: The Future of an Illusion, 18
S.D.L.Rev. 85, 117 (1973).
[
Footnote 2/21]
For example, in 1909, Congress appropriated funds for a mission
"[o]n the Rosebud Reservation," and included within this category a
mission in Gregory County. 35 Stat. 809. On the other hand, a 1905
Act extending the time for settling in Gregory County referred to
the lands as "heretofore a part of the Rosebud Indian Reservation."
C. 545, 33 Stat. 700. The modern statutes appear to be more
consistent in labeling the opened counties as part of the
Reservation.
See 77 Stat. 349 (1963); 78 Stat. 560 (1964);
89 Stat. 577 (1975).
The subsequent treatment of the disputed counties by the
Interior Department reflects a similar confusion as to the status
of the counties. Each side has presented to this Court a number of
instances in which the counties were referred to by Department
personnel in terms favorable to their case.
Compare Brief
for United States as
Amicus Curiae 33-38, 33a-41a,
with Brief for Respondents 106-120. In the two instances
in which Department officials have addressed the question directly,
however, they have concluded that the opened counties are part of
the Reservation. 54 I.D. 559 (1934) (opinion of Commissioner of
Indian Affairs on Restoration of Lands Formerly Indian to Tribal
Ownership); App. 1398-1404 (memorandum of Field Solicitor,
Aberdeen, S.D. Apr. 6, 1972).
[
Footnote 2/22]
At oral argument, we were informed that, in 1962, the people of
South Dakota rejected by a referendum an Act of the legislature
that would have granted the State jurisdiction over Indian country
pursuant to §§ 6, 7, 67 Stat. 590 (1953). Tr. of Oral Arg. 10.
[
Footnote 2/23]
Arguably, the Secretary acted properly so long as the lands were
part of the Reservation at the time they were opened.
See
56 I.D. 330 (1938). This was not the theory on which the Secretary
proceeded, however, in ordering restoration. 54 I.D. 559
(1934).
[
Footnote 2/24]
For example, according to the United States, the Department of
Housing and Urban Development, which has been making grants to the
Tribe, will no longer be able to approve projects in the opened
counties, since with respect to those counties the Tribe will no
longer be a "governmental entity" or "public body" under 42 U.S.C.
§ 1460(h). Brief for United States as
Amicus Curiae 38.
The Department of Agriculture has already ruled, in light of the
Court of Appeals decision, that money made available to the Tribe
to acquire lands pursuant to 25 U.S.C. § 488 cannot be used in the
opened counties. Brief for Association on American Indian Affairs
et al. as
Amici Curiae 36.
Of course, in holding that the opened counties are outside the
Reservation, the Court does not necessarily preclude the Government
or the Tribe from providing any aid to Indians in those counties.
Cf. Morton v. Ruiz, 415 U. S. 199
(1974).
[
Footnote 2/25]
National Indian Law Library, Allotment/Cession Statutes, Doc.
No. 002279. Of these statutes, five were passed with the consent of
the affected Indians; these five were enacted within a year after
the first Rosebud Act.
In addition to the 21 post-Rosebud Act statutes, there are at
least five pre-Rosebud Act laws which also opened surplus
reservation land to settlers without Indian consent. There are also
at least 15 pre-Rosebud Act laws which opened surplus land with
consent.