South Dakota v. Bourland
508 U.S. 679, 1993 U.S. LEXIS 4034, 124 L. Ed. 2d 606 (1993)
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Rule of Law:
When Congress acquires tribal lands for a public project and opens those lands to the general public, it abrogates the tribe's treaty-based right of exclusive use and occupation, which in turn divests the tribe of its incidental power to regulate hunting and fishing by non-Indians on those lands.
Facts:
- The 1868 Fort Laramie Treaty established the Great Sioux Reservation for the 'absolute and undisturbed use and occupation' of the Sioux Tribes.
- The Act of 1889 created the Cheyenne River Reservation, and subsequent allotment acts resulted in some reservation land being transferred to non-Indian ownership.
- The Flood Control Act of 1944 authorized the establishment of a flood control plan along the Missouri River and provided that reservoir areas would be open for general public use and recreation.
- Pursuant to the Cheyenne River Act of 1954, the Cheyenne River Sioux Tribe was required to relinquish 104,420 acres of its trust lands to the United States for the Oahe Dam and Reservoir project.
- The 1954 Act reserved certain rights for tribal members, including free access to the reservoir's shoreline to hunt and fish, but made this right 'subject, however, to regulations governing the corresponding use by other citizens of the United States.'
- For many years, both the Tribe and the State of South Dakota enforced their respective hunting and fishing regulations on the taken lands.
- In 1988, the Tribe announced it would no longer recognize state hunting licenses and would require non-Indians to possess a tribal license to hunt within the reservation, including the taken lands.
Procedural Posture:
- The State of South Dakota filed suit against the Chairman of the Cheyenne River Sioux Tribe in the U.S. District Court.
- South Dakota sought to enjoin the Tribe from regulating non-Indian hunting on the taken lands and sought a declaration that the federal taking diminished the Tribe's authority.
- The District Court permanently enjoined the Tribe from exerting such authority, holding that the Cheyenne River Act had abrogated the Tribe's right to exclusive use of the lands.
- The Tribe, as appellant, appealed to the U.S. Court of Appeals for the Eighth Circuit.
- The Court of Appeals affirmed in part and reversed in part, holding that the Tribe retained regulatory authority over the former trust lands but not over the former fee lands acquired by the U.S. from non-Indians.
- The Supreme Court of the United States granted certiorari to review the decision of the Court of Appeals.
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Issue:
Does the Cheyenne River Sioux Tribe retain the authority to regulate hunting and fishing by non-Indians on lands formerly part of its reservation that were acquired by the United States for the construction and operation of the Oahe Dam and Reservoir?
Opinions:
Majority - Justice Thomas
No. When Congress abrogates a tribe's right of absolute and exclusive use and occupation of land, it also abrogates the lesser included power to regulate the conduct of non-Indians on that land. The Flood Control Act of 1944 opened the taken lands to general public recreational use, and the Cheyenne River Act of 1954 extinguished the Tribe's rights in exchange for compensation. The 1954 Act explicitly reserved for the Tribe the right to hunt and fish but made it subject to regulations governing other citizens, indicating Congress did not intend to preserve the Tribe's distinct regulatory authority. Citing Montana v. United States, the Court reasoned that the effect of this land alienation—opening it to the public—destroyed the Tribe's pre-existing right to regulatory control, regardless of the purpose for the taking.
Dissenting - Justice Blackmun
Yes. A tribe's inherent sovereignty, confirmed by treaty, includes the right to regulate its territory, and this authority continues until Congress clearly and explicitly abrogates it. The majority improperly infers abrogation from congressional silence and misapplies precedent; the purpose of the land taking—to build a dam, not to destroy tribal government as in the Allotment Acts at issue in Montana—is crucial. Public access for recreation is not inherently inconsistent with concurrent tribal regulation. The dissent argues that congressional silence on regulatory authority should be construed in favor of the Tribe, meaning the power survives.
Analysis:
This decision reinforces and extends the principle from Montana v. United States, confirming that a tribe's loss of the right to exclude non-Indians from reservation land results in the loss of regulatory jurisdiction over their activities. The Court clarified that the determinative factor is the effect of the land alienation (i.e., opening it to the public), not the underlying congressional purpose. This ruling makes it more difficult for tribes to assert regulatory control over non-members on any portion of their reservations that has been designated for general public use, significantly impacting tribal sovereignty over alienated lands.
