SOUTH DAKOTA v. BOURLAND, INDIVIDUALLY AND AS CHAIRMAN OF THE CHEYENNE RIVER SIOUX TRIBE, ET AL.
No. 91-2051
Supreme Court of the United States
Argued March 2, 1993—Decided June 14, 1993
508 U.S. 679
Brian Stuart Koukoutchos argued the cause for respondents. With him on the brief were Laurence H. Tribe, Mark C. Van Norman, Steven C. Emery, and Timothy W. Joranko.
James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General O‘Meara, Edwin S. Kneedler, Edward J. Shawaker, David C. Shilton, and Thomas L. Sansonetti.*
JUSTICE THOMAS delivered the opinion of the Court.
In this case we consider whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on lands and overlying waters located within the Tribe‘s res
I
In 1868, the Fort Laramie Treaty, 15 Stat. 635, established the Great Sioux Reservation, which comprised most of what is now western South Dakota and part of North Dakota. Article II of the treaty provided that the reservation was to be held for the “absolute and undisturbed use and occupation” of Sioux Tribes and that no non-Indians (except authorized government agents) would “ever be permitted to pass over, settle upon, or reside in” the Great Sioux Reservation. Id., at 636. The Act of Mar. 2, 1889, ch. 405, 25 Stat. 888, removed a substantial amount of land from the reservation and divided the remaining territory into several reservations, including the Cheyenne River Reservation, which is located in north-central South Dakota. The 1889 Act preserved those rights of the Sioux under the Fort Laramie Treaty that were “not in conflict” with the newly enacted statute. § 19, 25 Stat. 896. The land designated for the Cheyenne River Reservation was held in trust by the United States for the benefit of the Tribe. 949 F. 2d 984, 987 (CA8 1991).
The 1889 Aсt also authorized the President to allot parcels of land within the reservation to individual Indians. § 8, 25 Stat. 890. Some of these allotted lands were subsequently acquired by persons not members of the Cheyenne River Sioux Tribe. Non-Indians also acquired fee title to some of the unallotted and “surplus” lands on the reservation pursuant to the Indian General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Act of May 29, 1908, ch. 218, 35 Stat. 460. The Indian General Allotment Act allowed surplus lands to be sold to non-Indians; the Act of 1908 authorized the Secretary of the Interior to open for non-Indian settlement more than 1.6 million acres previously held in trust by the United States. These enactments vastly reduced the amount of
After severe floods devastated the lower Missouri River basin in 1943 and 1944, Congress passed the Flood Control Act of 1944, ch. 665, 58 Stat. 887. This Act authorized the establishment of a comprehensive flood control plan along the Missouri River, which serves as the eastern border of the Cheyenne River Reservation. The Act also directed the Army Chief of Engineers to “construct, maintain, and operate public park and recreational facilities in reservoir areas,” and provided that the “reservoirs shall be open to public use generally,” subject to “such rules and regulations as the Secretary of War may deem necessary.” § 4, 58 Stat. 889-890. Seven subsequent Acts of Congress authorized limited takings of Indian lands for hydroelectric and flood control dams on the Missouri River in both North and South Dakota. See Lower Brule Sioux Tribe v. South Dakota, 711 F. 2d 809, 813, n. 1 (CA8 1983), cert. denied, 464 U. S. 1042 (1984). One of the largest of these takings involved the Oahe Dam and Reservoir Project, for which Congress required the Cheyenne River Sioux Tribe to relinquish 104,420 acres of its trust lands, including roughly 2,000 acres of land underlying the Missouri River.1 The Tribe‘s agreement to “convey to the United States all tribal, allotted, assigned, and inherited lands or interests” needed for the project is memorialized in the Cheyenne River Act of Sept. 3, 1954, 68 Stat. 1191.2
“[The] Tribal Council and the members of said Indian Tribe shall have, without cost, the right of free access to the shoreline of the reservoir including the right to hunt and fish in and on the aforesaid shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United States.” Id., at 1193 (emphasis added).5
The Court of Appeals affirmed in part, reversed in part, and remanded. 949 F. 2d 984 (CA8 1991). The court distinguished between the 104,420 acres of former trust lands acquired pursuant to the Cheyenne River Act and the 18,000 acres of former non-Indian fee lands acquired pursuant to the Flood Control Act. As to the former trust lands, the court held that the Tribe had authority to regulate non-Indian hunting and fishing because the Cheyenne River Act did not clearly reveal Congress’ intent to divest the Tribе of its treaty right to do so. As to the 18,000 acres of former fee lands, however, the court found that Montana v. United States and Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), controlled. Assuming the 18,000 acres had previously been held in fee by non-Indians pursuant to one of the Allotment Acts, the Court of Appeals noted that:
“Since Montana held that tribes have been divested of their regulatory authority over non-Indians hunting and fishing on land held in fee by non-Indians pursuant to an
allotment act, the lack of a grant of such power requires us to conclude that the Tribe does not possess such authority, unless one of the Montana exceptions is met.” 949 F. 2d, at 995.8
The Eighth Circuit therefore remanded the case for a determination whether the Tribe could regulate non-Indian hunting and fishing on the former fee lands pursuant to one of the exceptions to the general rule that an Indian tribe‘s inherent sovereign powers do not extend to non-Indian activity. We granted certiorari, 506 U. S. 813 (1992), and now reverse.
II
Congress has the power to abrogate Indians’ treaty rights, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 594 (1977), though we usually insist that Congress clearly express its intent to do so. See Menominee Tribe v. United States, 391 U. S. 404, 412-413 (1968); United States v. Dion, 476 U. S. 734, 738 (1986). See also County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit“) (citations omitted). Our reading of the relevant statutes persuades us that Congress has abrogated the Tribe‘s rights under the Fort Laramie Treaty to regulate hunting and fishing by non-Indians in the area taken for the Oahe Dam and Reservoir Project.
The Fort Laramie Treaty granted to the Cheyenne River Sioux Tribe the unqualified right of “absolute and undis
Like this case, Montana concerned an Indian Tribe‘s power to regulate non-Indian hunting and fishing on lands located within a reservation but no longer owned by the Tribe or its members. Under the General Allotment Act of 1887, ch. 119, 24 Stat. 388, as amended,
Montana and Brendale establish that when an Indian tribe conveys ownership of its tribal lands to non-Indians, it loses any former right of absolute and exclusive use and occupation of the conveyed lands. The abrogation of this greater right, at least in the context of the type of area at issue in this case,9 implies the loss of regulatory jurisdiction over the use of the land by others. In taking tribal trust lands and other reservation lands for the Oahe Dam and Reservoir Project, and broadly opening up those lands for public use, Congress, through the Flood Control and Cheyenne River Acts eliminated the Tribe‘s power to exclude non-Indians from these lands, and with that the incidental regulatory jurisdiction formerly enjoyed by the Tribe.
The Flood Control Act authorized the construction, management, and operation of public recreational facilities on the lands taken for the Oahe Reservoir. § 4, 58 Stat. 889, as amended,
If the Flood Control Act leaves any doubt whether the Tribe retains its original treaty right to regulate non-Indian hunting and fishing on lands taken for federal water projects, the Cheyenne River Act extinguishes all such doubt. Section II of that Act declares that the sum paid by the Government to the Tribe for former trust lands taken for the Oahe Dam and Reservoir Project, “shall be in final and complete settlement of all claims, rights, and demands” of the Tribe or its allottees. 68 Stat. 1191. This provision reliably indicates that the Government and the Tribe understood the Act to embody the full terms of their agreement, including the various rights that the Tribe and its members would continue to enjoy after conveying the 104,420 acres to the Government.10 The Tribe‘s § IX “right of free access to the shoreline of the reservoir includ[es] the right to hunt and fish” but is “subject . . . to regulations governing the corresponding use by other citizens of the United States.” Id., at 1193 (emphasis added). If Congress had intended by this provision to grant the Tribe the additional right to regulate hunting and fishing, it would have done so by a similarly explicit statutory command. The rights granted the Tribe in § IX stand in contrast to the expansive treaty right originally granted the Tribe of “absolute and undisturbed use,” which does encompass the right to exclude and to regulate. See Montana, 450 U. S., at 554, 558.
The Court of Appeals found Montana inapposite with respect to the 104,420 acres of former trust lands because “[t]he purpose of the [Cheyenne River] Act, unlike that of the Allotment Act at issue in Montana, was not the destruction of tribal self-government, but was only to acquire the property rights necessary to construct and operate the Oahe Dam and Reservoir.” 949 F. 2d, at 993. To focus on purpose is to misread Montana. In Montana, the Court did refer to the purpose of the Allotment Acts and discussed the legislative debates surrounding the allotment policy, as well as Congress’ eventual repudiation of the policy in 1934 by the In
The takings at issue here do differ from the conveyances of fee title in Montana, however, in that the terms of the
Our decision in United States v. Dion, 476 U. S. 734 (1986), supports this conclusion. In Dion, we considered whether an Indian who takes an eagle on tribal land violates the Bald Eagle Protection Act.14 We demanded “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Id., at 740. The Bald Eagle Protection Act contains an exemption allowing the Secretary of the Interior to permit the taking of an eagle “for the religious purposes of Indian tribes” and for other narrow purposes found to be compatible with the goal of eagle preservation.
III
Respondents and their amici raise several alternative arguments, none of which undercuts our statutory analysis. Respondents argue, for example, that their right to regulate hunting and fishing in the taken area was not abrogated because the $10,644,014 appropriated in the Cheyenne River Act did not include compensation for the Tribe‘s loss of licensing revenue. This sum, respondents argue, did include payment for, inter alia, the loss of grazing permit revenues and the destruction of wildlife, wild fruit, and other natural resources, as those losses were itemized in the House Report on the Cheyenne River Act. See Brief for Respondents 9 (citing H. R. Rep. No. 2484, 83d Cong., 2d Sess., 4 (1954)). To hold their regulatory authority divested, respondents contend, would imply that Congress breached its duty to compensate the Tribe for all taken resources. The Act itself, however, does not itemize the losses covered by the compensation but rather plainly states that the appropriated funds constitute a “final and complete settlement of all claims, rights, and demands” of the Tribe arising out of the Oahe Dam and Reservoir Project. § II, 68 Stat. 1191. Given the express text of the Act, we will not conclude that the Act reserved to the Tribe the right to regulate hunting and fishing simply because the legislative history does not include an itemized amount for the Tribe‘s loss of revenue from licensing those activities.
General principles of “inherent sovereignty” also do not enable the Tribe to regulate non-Indian hunting and fishing in the taken area. Although Indian tribes retain inherent authority to punish members who violate tribal law, to regulate tribal membership, and to conduct internal tribal relations, United States v. Wheeler, 435 U. S. 313, 326 (1978), the “exercise of tribal power beyond what is necessary to protect
The question remains, however, whether the Tribe may invoke other potential sources of tribal jurisdiction over non-Indians on these lands. Montana discussed two exceptions to “the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id., at 565. First, a tribe may license or otherwise regulate activities of nonmembers who enter “consensual relationships” with the tribe or its members through contracts, leases, or other commercial dealings. Ibid. Second, a “tribe may . . . retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of thе tribe.” Id., at 566. The District Court made extensive findings that neither of these exceptions applies to either the former trust lands or the former fee lands. See App. 142-149. And although the Court of Appeals instructed the District Court
Finally, respondents contend that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing. Although Congress abrogated the Tribe‘s right to regulatory control in the taken area through the Flood Control and Cheyenne River Acts, it gave primary regulatory authority over the water project lands to the Army Corps of Engineers.
Respondents did not rely on the Army Corps’ regulations in the proceedings below. And although the United States as amicus curiae asserted at oral argument that § 327.8 leaves all pre-existing state, loсal, and tribal hunting and fishing regulations in effect on project lands, see Tr. of Oral Arg. 50, it did not even mention the Army Corps regulation
IV
“[T]reaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands.” Montana, 450 U. S., at 561. In this case, the United States took former trust lands pursuant to the Flood Control Act, which mandated that all water project lands be open for the general public‘s use and recreational enjoyment. The Cheyenne River Act reserved some of the Tribe‘s original treaty rights in the former trust lands (including the right to hunt and fish) but not the right tо exert regulatory control. These statutes clearly abrogated the Tribe‘s “absolute and undisturbed use and occupation” of these tribal lands, 15 Stat. 636, and thereby deprived the Tribe of the power to license non-Indian use of the lands. Accordingly, the judgment of the Court of Appeals is reversed, and the case
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins, dissenting.
The land at issue in this case is part of the Cheyenne River Sioux Reservation.1 The United States did not take this land with the purpose of destroying tribal government or even with the purpose of limiting tribal authority. It simply wished to build a dam. The Tribe‘s authority to regulate hunting and fishing on the taken area is consistent with the uses to which Congress has put the land, and, in my view, that authority must be understood to continue until Congress clearly decides to end it.
The majority‘s analysis focuses on the Tribe‘s аuthority to regulate hunting and fishing under the Fort Laramie Treaty of 1868, 15 Stat. 635, see ante, at 687-694, with barely a nod acknowledging that the Tribe might retain such authority as an aspect of its inherent sovereignty, see ante, at 694-695. Yet it is a fundamental principle of federal Indian law that Indian tribes possess “‘inherent powers of a limited sovereignty which has never been extinguished.‘” United States v. Wheeler, 435 U. S. 313, 322 (1978) (emphasis omitted), quoting F. Cohen, Handbook of Federal Indian Law 122 (1945). This Court has recognized that the inherent sovereignty of Indian tribes extends “‘over both their members and their territory.‘” 435 U. S., at 323 (emphasis added), quoting United States v. Mazurie, 419 U. S. 544, 557 (1975). Inherent tribal sovereignty “exists only at the sufferance of Congress and is subject to complete defeasance. But until
The Fort Laramie Treaty confirmed the Tribe‘s sovereignty over the land in question in the most sweeping terms by providing that it be “set apart for the absolute and undisturbed use and occupation of the [Sioux].” 15 Stat. 636. The majority acknowledges that this provision arguably conferred “‘upon the Tribe the authority to control hunting and fishing on those lands.‘” Ante, at 688, quoting Montana v. United States, 450 U. S. 544, 558-559 (1981). Because “trea-ties should be construed liberally in favor of the Indians,”
The question, then, is whether Congress intended to abrogate the Tribe‘s right to regulate non-Indian hunting and fishing on the taken area—a right flowing from its original sovereign power that was expressly confirmed by treaty. This Court does not lightly impute such an intent to Congress. There must be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” United States v. Dion, 476 U. S. 734, 740 (1986); see also Wheeler, 435 U. S., at 323 (implicit withdrawal of inherent sovereignty only where “necessary“); Colville, 447 U.S., at 153-154 (same).
The majority, however, points not even to a scrap of evidence that Congress actually considered the possibility that by taking the land in question it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land. Instead, it finds Congress’ intent implicit in the fаct that Congress deprived the Tribe of its right to exclusive use of the land, that Congress gave the Army Corps of Engineers authority to regulate public access to the land, and that Congress failed explicitly to reserve to the Tribe the right to regulate non-Indian hunting and fishing. Despite its citation of Dion, supra, Menominee Tribe v. United States, 391 U. S. 404 (1968), and County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251 (1992), see ante, at 687, the majority adopts precisely the sort of reasoning-by-implication that those cases reject.
The majority supposes that the Tribe‘s right to regulate non-Indian hunting and fishing is incidental to and dependent on its treaty right to exclusive use of the area and that the Tribe‘s right to regulate was therefore lost when its right to
The majority‘s reliance on Montana and Brendale in this regard is misplaced. In those cases, the reservation land at issue had been conveyed in fee to non-Indians pursuant to the Indian General Allotment Act of 1887, 24 Stat. 388, which aimed at the eventual elimination of reservations and the assimilation of Indian peoples. See Montana, 450 U. S., at 559, n. 9. In Montana, the Court concluded: “It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government.” Id., at 560, n. 9. See also Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 423 (1989) (opinion of WHITE, J.). The majority finds the purpose for which the land is alienated irrelevant, relying on Montana‘s statement that “what is relevant . . . is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land.”
In this case, as the majority acknowledges, see ante, at 683-684, Congress’ purpose was simply to build a dam. Congress also provided that the taken area should be open to non-Indians for “recreational purposes.” See ante, at 689. But these uses of the land are perfectly consistent with continued tribal authority to regulate hunting and fishing by non-Indians. To say that non-Indians may hunt and fish in the taken area is not to say that they may do so free of tribal regulation any more than it is to say that they may do so free of state or federal regulation. Even if the Tribe lacks the power to exclude, it may sanction with fines and other civil penalties those who violate its regulations.
Apparently the majority also believes that tribal authority to regulate hunting and fishing is inconsistent with the fact that Congress has given the Army Corps of Engineers authority to promulgate regulations for use of the area by the general publiс. See ante, at 691, 692, and n. 13. I see no inconsistency. The Corps in fact has decided not to promulgate its own hunting and fishing regulations and instead has provided that “[a]ll Federal, state and local laws governing [hunting, fishing, and trapping] apply on project lands and waters.”
In its search for a statement from Congress abrogating the Tribe‘s right to regulate non-Indian hunting and fishing in the taken area, the majority turns to a provision in the Cheyenne River Act that the compensation paid for the taken area “‘shall be in final and complete settlement of all claims, rights, and demands’ of the Tribe.” Ante, at 690, quoting Pub. L. 776, § II, 68 Stat. 1191. But this provision simply makes clear that Congress intended no further compensation for the rights it took from the Tribe. It does not address the question of which rights Congress intended to take or, more specifically, whether Congress intended to take the Tribe‘s right to regulate hunting and fishing by non-Indians. The majority also relies on the fact that § IX of the Act expressly reserved to the Tribe the right to hunt and fish but not the right to regulate hunting and fishing. See ante, at 690. To imply an intent to abrogate Indian rights from such congressional silence once again ignores the principles that “Congress’ intention to abrogate Indian treaty rights be clear and plain,” Dion, 476 U. S., at 738, and that “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.‘” County of Yakima, 502 U. S., at 269, quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985). Congress’ failure to address the subject of the Tribe‘s regulatory authority over hunting and fishing means that the Tribe‘s authority survives and not the reverse.3