BOGUE, District Judge.
Petitioner Donald M. Cook has brought this action under 28 U.S.C. § 2241 et seq., the Federal Habeas Corpus Act, in an effort to secure his release from what he asserts is unlawful detention. The petitioner was convicted of the crime of third degree burglary which occurred in the city of Martin, County of Bennett, South Dakota. He was sentenced on June 4, 1971, in the Circuit Court of South Dakota, Sixth Judicial Circuit, and was incarcerated in the South Dakota Penitentiary on June 9, 1971. The petitioner asserts that his detention is unlawful upon the grounds that the state of South Dakota lacks jurisdiction to prosecute or imprison Indians for crimes committed by them within "Indian country" as defined by 18 U. S.C. § 1151(a).
Petitioner Cook is a three-eighths blood Indian and an enrolled member of the Concow and Redwood tribe of California Indians. His enrollment number is 6640 and his name appears on the Revised Roll of California Indians pursuant to the Act of May 24, 1950, 64 Stat. 189. It is not required
In this case the South Dakota courts have asserted jurisdiction over an Indian for acts committed within Bennett County, South Dakota. Although Bennett County was within the boundaries of the Pine Ridge Indian Reservation as that reservation was defined by 25 Stat. 888, 1889, and therefore under the jurisdiction and control of the Oglala Sioux Tribe and the federal government from 1889 to 1910, the state of South Dakota has without challenge exerted jurisdiction and control over Bennett County for the past sixty-five years since the Act of May 27, 1910, was passed by Congress. In its written opinion in this case the South Dakota Supreme Court reaffirmed its earlier rulings in State of South Dakota ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959), and State of South Dakota ex rel. Swift v. Erickson, 82 S.D. 60, 141 N.W.2d 1 (1966), that the Act of May 27, 1910, "was motivated by a congressional purpose to reduce the area of Pine Ridge" and that the State of South Dakota has jurisdiction over Bennett County.
Since the petitioner is an Indian and since his crime was found to have been committed in Bennett County, the State of South Dakota possesses no jurisdiction if Bennett County is "Indian country" under 18 U.S.C. § 1151(a). If the tract of land is within a continuing "reservation", jurisdiction is in the tribe and the Federal Government "notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." 18 U.S.C. § 1151(a). On the other hand, if the land in question is not within a continuing reservation, jurisdiction is in the State, except for those land parcels which are "Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." 18 U.S.C. § 1151(c). Even within "Indian Country" a State may have jurisdiction over some persons or types of conduct, but this jurisdiction is limited. See, McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). Although 18 U.S.C. § 1151 applies on its face only to criminal jurisdiction, the United States Supreme Court has recognized that it generally applies as well to questions of civil jurisdiction. McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).
Thus, the single question is presented whether the Act of May 27, 1910, 36 Stat. 440, was intended by Congress to diminish the Pine Ridge Reservation as originally defined in the Act of March 2, 1889, 25 Stat. 888, by removing Bennett County therefrom. This Court holds, for the reasons that follow, that the 1910 Act diminished the boundaries of the Pine Ridge Reservation, and that consequently the South Dakota state courts have jurisdiction over conduct on non-Indian lands within the 1889 reservation borders.
In 1851 the Treaty of Fort Laramie was negotiated between commissioners especially appointed and authorized by the President of the United States, and
The parties to this suit agree that the Great Sioux Reservation was diminished from its 1868 boundaries by an Act of Congress on March 2, 1889, chap. 405, 25 Stat. 888. This 1889 Act reduced the Sioux lands to about half their former extent and restored the ceded portion to the public domain. In that Act the Pine Ridge Reservation was established and contained about 2,765,000 acres in what are now the counties of Bennett, Washabaugh, and Shannon. The statutory description of the Pine Ridge Reservation was as follows:
Although the preamble of the 1889 Act stated that the reservation was to be "permanent", Section 12 of the Act provided the means by which the United States could buy and the members of the Oglala Sioux Tribe could "sell" such "portions" of the "reservation" as could be agreed upon from time to time subject to the ratification of Congress. The portion of the reservation "so sold or released" was to "be held by the United States for the sole purpose of securing homes to actual settlers." Act of March 2, 1889, supra, Sec. 12.
Pursuant to Section 12, the United States initiated three separate negotiations for "portions of the reservation" with the members of the Oglala Sioux Tribe. Only one of these negotiations resulted in an Act of Congress, the Act of May 27, 1910, 36 Stat. 440, encompassing what is now Bennett County, South Dakota. Shortly after the Act, the United States released the unallotted land in the area thus acquired to actual settlers. This tract of land now consists primarily of small farms and ranches and has a population of approximately four thousand residents.
It is now the duty of this Court to examine the Act of May 27, 1910, 36 Stat. 440, along with the legislative history and the circumstances which led to enactment of this legislation, and to determine whether or not Congress, in passing this act, intended to diminish the reservation by extinguishing the Indian country character of Bennett County, or merely open Bennett County to homesteading without changing the outer confines of the Pine Ridge Reservation thereby. Each treaty or act must be analyzed separately to determine congressional intent. United States v. Ash Sheep Company, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507 (1920); Kills Plenty, et al. v. United States, 133 F.2d 292, 295 (8th Cir. 1943). The issue has been extensively
The United States Supreme Court recently reaffirmed and clarified the guidelines to be applied in determining questions relating to Indian reservations. In DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75), the Court stated:
Certainly in construing treaties and statutes passed for the benefit of Indians and Indian tribes, courts must construe them liberally and whenever possible resolve any doubt in favor of the same. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832); Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478 (1930); Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941 (1912); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918).
ACT OF MAY 27, 1910, 36 STAT. 440
The Act is entitled:
OPERATIVE LANGUAGE OF THE ACT
The operative language of the 1910 Act reads as follows:
Immediately following the metes and bounds description, a "provided" clause was included to allow the Bennett County allottees the privilege of reselecting an allotment in the area of the reservation unaffected by the legislation. The provision reads as follows:
The words used in the 1910 Act, when given their plain and ordinary meaning, show a clear congressional intent on the face of the act to diminish the Pine Ridge Reservation by authorizing the Secretary of the Interior to sell and dispose of the described tract of land to be ceded. Bennett County, "the tract to be ceded," was to be sold and disposed of and the remaining portion of the reservation or the "diminished reservation" was to remain reserved by the government for the use and occupancy of the Pine Ridge Indians. In Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), the Court similarly construed the statutory term "diminished reservation" to mean that the north half of the Colville Reservation was vacated and restored to the public domain but that the south half or "diminished Colville Indian Reservation" was still reserved by the government for the Colville Indians' use and occupancy. By use of the metes and bounds description, Congress clearly and specifically delineated "the tract to be ceded" from the "diminished reservation". See also, Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (D.S.D.1974); Cook v. State, S.D., 215 N.W.2d 832 (1974).
The term "ceded", when given its plain and ordinary meaning, evidences a clear congressional intent to terminate the "Indian country" character of Bennett County. In 1913, the Eighth Circuit Court of Appeals addressed a portion of its opinion to the significance of the term in United States v. Myers, 206 F. 387 (8th Cir. 1913):
Felix Cohen has succinctly stated the import of the term:
Black's Law Dictionary defines the term as:
Ballentines Law Dictionary defines the term as:
Bouvier's Law Dictionary defines the term as:
The Tenth Circuit Court of Appeals in Ellis v. Page, 351 F.2d 250 (10th Cir. 1950), observed that the use of this and similar language was unequivocal:
The operative language of the 1910 Act, when given its plain ordinarily understood meaning, evidences the clear congressional intent to diminish the Pine Ridge Reservation by selling and disposing
HISTORY OF THE ACT — SENATE BILL 7380
The 1910 Act originated in 1909. When the Pine Ridge Reservation was created by Congressional Act in 1889, Section 12 of that act read as follows:
The first recorded attempt to implement Section 12 and thereby reduce the size of the Pine Ridge Reservation was initiated by Senator Gamble of South Dakota on December 9, 1908 when he introduced Senate Bill 7380. Section one of that bill read as follows:
Although the United States Supreme Court in 1903 had decided Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), and as far as Congress and the Department of the Interior were concerned, this decision stood for the rule of law that Congress had the plenary power to diminish the size of an Indian reservation and to effectuate a cession without the ratification of three-fourths of the adult male Indian population of the tribe consenting, Inspector James McLaughlin was detailed to conduct the negotiations with the Pine Ridge Indians. The Departmental Instructions issued to Inspector McLaughlin could not be located by the parties to this case and are therefore not before this Court, but it is clear from the other documents presented that members of Congress coveted Indian lands. Pressures for land for settlers were great, not only from South Dakotans, but from people from the east who wished to move west. In response to this pressure Senate Bill 7380 was drafted and introduced in 1908. On December 21, 1908, in a letter to the Secretary of the Department of Interior, Mr. John R. Brennan, Superintendent of the Pine Ridge Agency in South Dakota, expressed his displeasure that Senate Bill 7380 proposed to open the northern portion of the reservation. Superintendent Brennan stated:
Superintendent Brennan further stated that Senate Bill 7380 was "premature and not in the best interests of the Pine Ridge Indian" because the allotment schedule within the "tract named in the
Nevertheless, on February 4, 1909, on behalf of the Committee on Indian Affairs, Senator Gamble reintroduced the bill and submitted a report. This report contains clear probative evidence that confirms the operative language on the face of Senate Bill 7380 that the legislation, if enacted, would dispose of that portion of the Pine Ridge Reservation described and thereby diminish the reservation. Senator Gamble stated:
In addition, Senator Gamble explained:
The provision of the Act admitting the State of South Dakota into the Union provides:
Thus, it is clear from the operational language and from the legislative history of Senate Bill 7380, that this proposed legislation had as its purpose to sell and dispose of all unallotted lands in the described portion of the Pine Ridge Reservation, to diminish the reservation, to extinguish the Indian country character of the tract of land described therein, and to return that tract of land to the public domain.
Shortly after Senator Gamble's report was delivered it became evident that opposition to Senate Bill 7380 was growing. On February 13, 1909, Senator Martin stated:
Evidently the proponents of "common territory" prevailed, however, because Inspector McLaughlin was ordered to South Dakota where he conducted negotiations with tribal representatives of the Pine Ridge Indians on March 16, 1909, and on April 5, 1909.
NEGOTIATIONS—SENATE BILL 7380
The theme which permeates the entire transcript of these 1909 Pine Ridge negotiations is that the business at hand was not in any material respect different from the various land cessions that members of the tribe recalled from the past. The subject was repeatedly referred to as negotiations for a tract of
Inspector McLaughlin made it clear that the 1908 bill was a proposal and not a unilateral action by Congress and stated:
Inspector McLaughlin equated opening with public domain:
Various tribal members spoke their views on the proposal and their statements reveal a clear understanding that the bill would effect a sale of cession of the described tract of land which would diminish the reservation. The tribal members present understood the proposed agreement to be no different than other cession agreements in the past which had been a source of disappointment and hard feelings. Charles Turning Hawk stated:
George Sword stated:
Joseph Eagle Hawk stated:
Plenty Bear stated:
Charles Turning Hawk added:
George Sword added:
Plenty Bear explained:
John Little Commander stated:
It is clear that the tribal representatives present fully understood the effect that Senate Bill 7380 would have had on their reservation. Inspector McLaughlin submitted his report on negotiations to Washington, D.C. on April 19, 1909, wherein he accurately portrayed the solid opposition of the Oglala Sioux Tribe to Senate Bill 7380.
It is clear from the operational language on the face of Senate Bill 7380, and from the legislative history and surrounding circumstances, that the purpose of this proposal if enacted, was to sell and dispose of all unallotted land in
The petitioner further states:
HISTORY OF THE ACT—SENATE BILL 2341
Immediately after word was received in Washington, D.C., that the primary reason for the solidarity in opposition to Senate Bill 7380 centered around the portion of the reservation thereby affected, Senator Gamble redrafted the legislation as Senate Bill 2341 by changing only the parcel of land described therein so that as revised it would encompass the southeastern corner of the Pine Ridge Reservation corresponding to what is now Bennett County, South Dakota. In presenting his opinion on Senate Bill 2341, Agent Bates set forth the following rationale:
Senator Gamble, in referring Senate Bill 2341 to R. A. Ballinger, Secretary of the Interior, stated:
NEGOTIATIONS—SENATE BILL 2341
Inspector McLaughlin was sent to the Pine Ridge Indian Reservation in South Dakota to negotiate for the tract of land described in Senate Bill 2341 and he arrived at the Pine Ridge Agency on September 1, 1909. The transcripts of these negotiations clearly establish
The statements of those present at the 1909 negotiations reveal that both tribal leaders and tribal members accurately understood that Senate Bill 2341 would change the boundaries and thereby decrease the size of the Pine Ridge Reservation. The diminished area of land over which the Oglala Tribe could exercise control and the proposed boundaries which would result if Senate Bill 2341 became law were specifically referred to, directly and indirectly, many times by all parties present. Inspector McLaughlin stated:
The members of the Tribe responded in a variety of ways, all of which are susceptible of only one interpretation:
When the discussion narrowed to the alteration of the red-lined "proposed boundaries" their remarks became even more specific:
The resolutions attached to the transcript similarly reflect the substance of the boundary terminology:
On September 23, 1909, Inspector McLaughlin submitted his written report to the Secretary of the Interior on the results of the negotiations concerning Senate Bill 2341. In addition to the council meetings of September 1, 2 and 15, 1909, that were transcribed and referred to supra, Inspector McLaughlin notes that other meetings were held but that unfortunately no stenographer was available to record what was said. Inspector McLaughlin stated in his report that during these later unrecorded council meetings the members of the Oglala Sioux Tribe concurred in and consented to the proposed sale of reservation lands described in Senate Bill 2341 with certain stated changes. Inspector McLaughlin referred to the agreement reached as a "cession" and set out the boundaries of the reservation as diminished by the agreement:
Inspector McLaughlin recommended that the desires of the Indians to slightly alter the proposed boundaries of the tract of land to be ceded be complied with. In addition to the boundary dispute, another area of major concern to the members of the Oglala Sioux Tribe noted in the report was the disposition of certain timber in the tract to be ceded. Timber was highly prized by the Indians because it was used for fence posts, livestock corrals and log cabins and because it was the only available winter heating fuel and many Indians had no timber on
Senator Gamble agreed with Inspector McLaughlin's recommendations and stated:
Senator Gamble also noted the Inspector's recommendation on timber lands and stated further:
The Secretary of the Department of the Interior, in his Department Report and Recommendations on Senate Bill 2341, reflected the understanding of the Department and stated:
The Secretary further reported that the Pine Ridge Indians had "acquiesed" in Senate Bill 2341 provided that the timber lands within the area to be ceded be equitably apportioned among the members of the tribe, and provided that minor alterations be made in the metes and bounds description of the tract of land described in the bill. Id. at 4.
On February 17, 1910 Senator Gamble on behalf of the Senate Committee on Indian Affairs, reported Senate Bill 2341 out of committee with the suggested amendments and submitted a formal report to Congress. Before this Court focuses on the legislative history of Senate Bill 2341, a comment on the preceding materials is in order. Although this Court has stated its opinion that the language of the Act of May 27, 1910, 36 Stat. 440, on its face, when given its commonly understood meaning, shows a clear Congressional intent to diminish the Pine Ridge Reservation by extinguishing the Indian country character of Bennett County, this Court deems it necessary, because of the importance of the issue presented, to examine the circumstances surrounding the legislation as well as the legislative history of the Act. The preceding materials, although not technically of primary probative value, are one of the richest sources from which to gain a perspective of the period which is a prerequisite to understanding the rationale underlying the provisions of the Act of 1910. This Court cannot remake history, but it has a duty to make every effort to understand history as it relates to this Act, and thereby determine what the intent of Congress was in passing this legislation.
CONGRESSIONAL STATEMENTS— SENATE BILL 2341
Assumed through the entire discussion contained in Senator Gamble's February 17, 1910, report to Congress on Senate Bill 2341, is the fact that the area under the control of the Oglala Sioux Indians would be diminished and the 1889 boundaries would be changed to mark off that portion of diminished reservation
Senator Gamble reported that because Senate Bill 2341 operated to extinguish the portion of the reservation described and to restore those lands to the public domain, the school land grant provision of the bill met the requirements of the Act which admitted the State of South Dakota to the Union. That Act provides:
Senator Gamble further reported:
In this report to Congress, Senator Gamble's explanation of the various provisions of the legislation and the effect such provisions would have if enacted into law, comports with the clear meaning of the operational language on the face of Senate Bill 2341.
Because Senate Bill 2341 continued to be introduced and passed over almost daily in the Senate during the following two weeks, Congressman Burke, also from South Dakota, introduced the proposed legislation to the House of Representatives as H.R. 12440. 45 Cong.Rec. 1135 (1910). In reporting the legislation to the House of Representatives, Congressman Burke explained:
Again, the same provision of the enabling act admitting the State of South Dakota into the Union discussed supra, was said by Congressman Burke to be satisfied by the legislation which would operate to extinguish that portion of the reservation described therein and restore that portion to the public domain. In explaining the provision which granted permission to Indians who held allotments
While Congressman Burke evidentially used the term "the reservation" to describe the same area referred to by Senator Gamble as the "diminished reservation", the plain meaning of the clear language on the face of the legislation is susceptible to only one interpretation: the purpose of this legislation was to sell and dispose of all unallotted land within the described portion of the Pine Ridge Reservation, extinguish the Indian country character of the described land, diminish the reservation thereby, and restore the unallotted tracts of land to the public domain.
Senate Bill 2341 was accepted for introduction on February 10, 1910, and Senate debate on the bill began. Senator Bacon of Georgia stated that he was "not familiar" with these matters and requested a clear explanation of the "scope and purpose" of Senate Bill 2341. 45 Cong.Rec. 1501 (1910). Senator Gamble replied:
In his clear statement of the effect of Senate Bill 2341 to the assembled Senate, Senator Gamble twice defined the term "open to settlement" to mean "become a part of the public domain". This explicit authoritative statement of legislative intent buttresses this Court's conclusion that "the face of the Act", and its "surrounding circumstances" and "legislative history", all point unmistakably to the conclusion that Bennett County was removed from the Pine Ridge Reservation in 1910. cf. Mattz v. Arnett, 412 U.S. 481, 504 n. 22, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); DeCoteau v. District County Court, 420 U.S. 425, 431-440, 95 S.Ct. 1082, 43 L. Ed.2d 300 (3/4/75). Not one Senator objected to or otherwise argued against this clear statement of the intended effect of Senate Bill 2341. In fact, shortly thereafter Senator Bacon indicated that he was satisfied with the legislative intent as stated, and that he simply desired that "the facts should be clearly stated and that it should be known exactly what is the effect of the bill." 45 Cong.Rec. 1503 (1910). The legislation ed). Senate Bill 2341 was then ordered to be engrossed for a third reading, was read the third time, and was passed by the Senate without further debate. 45 Cong.Rec. 1503 (1910). The legislation was referred to the House of Representatives on February 7, 1910. 45 Cong. Rec. 1503 (1910). Three days later Congressman Burke reported the bill from the Committee on Indian Affairs. 45 Cong.Rec. 1752 (1910). The
Although later legislative attempts to further diminish the size of the Pine Ridge Reservation are largely irrelevant to the issue before the Court in this case, the surrounding circumstances of such later attempts provide relevant evidence of an understanding among all parties concerned that Bennett County ceased to be within the boundaries of the Pine Ridge Reservation in 1910. As early as January of 1910, efforts were being made to dispose of that portion of the Pine Ridge Reservation located within Washabaugh County. See, H.R.Rep. 333, supra. On April 6, 1911, Senator Gamble introduced Senate Bill 111 to:
The metes and bounds description in Senate Bill 111 refers to and describes the township line between townships thirty-nine and forty as the "boundary line", which corresponds exactly to the boundary line described in the 1910 Act, and is followed by a second reference to "said named last boundary line." Thus, on the face of Senate Bill 111, drafted in 1911, Senator Gamble expressed his understanding that the Act of April 27, 1910, 36 Stat. 440, changed and diminished the 1889 boundaries of the Pine Ridge Reservation.
The transcripts of the 1911 negotiations on Senate Bill 111 disclose that each member attending the council fully appreciated the importance of the event and realized that Washabaugh County would no longer be a part of the reservation if the bill was enacted. Tribal leaders present stated their understanding that the Act of 1910 effected a sale of the unallotted lands in Bennett County and removed Bennett County from the reservation:
More significant, however, is the very detailed and unequivocal description of what would be the diminished Pine Ridge Reservation if Senate Bill 111 affecting Washabaugh County became law:
By use of the term "original reservation" Inspector McLaughlin meant the area within the 1889 boundaries. Bennett County contains one-fourth of that area and Washabaugh County also contains one-fourth of that 1889 area. In this statement made in 1911, Inspector McLaughlin explained that if Senate Bill 111 would be enacted Washabaugh County, the northeast one-fourth, would be sold and disposed of. This would leave the Indians with only one-half of their original 1889 reservation as "diminished reservation" because Bennett County, the other one-fourth of the original 1889 reservation, had been sold and removed from tribal jurisdiction in 1910. This statement also shows that Inspector McLaughlin understood and represented to the Pine Ridge Indians that the phrase "diminished reservation" meant that the size of the reservation and the reservation boundaries would be diminished when Congress passed the Act. See, DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75). The Pine Ridge Reservation as defined in 1889, by 25 Stat. 888, contained approximately 2,765,000 acres. S.Rep.No. 910, 60th Cong. 2d Sess., p. 1 (1909); the area of land contained in Bennett County is approximately 765,000 acres. S.Rep.No. 69, 61st Cong. 2d Sess. 4-5 (1910). If the term "diminished reservation", as used on the face of the 1910 Act, means that the size of the reservation and the reservation boundaries were diminished when Congress passed the Act, then the Pine Ridge Reservation would have been reduced to 2,000,000 acres after 1910. In 1912, Senator Gamble in his report on Senate Bill 111 to the assembled Congress, confirmed that the 1910 Act had in fact diminished the boundaries of the Pine Ridge Reservation by removing all of Bennett County therefrom:
This statement to Congress is clear probative evidence that the size, area, and boundaries of the Pine Ridge Reservation in 1912 did not include Bennett County.
The Commissioner of Indian Affairs recognized that the Pine Ridge Reservation had been diminished in his Annual Report for 1914:
In two letters dated March 4, 1916, to the Chairman of the House and Senate Committees on Indian Affairs, the Secretary of the Interior, Franklin K. Lane,
Shortly thereafter a printed bill was prepared in the House and the Senate entitled:
On March 6 and 14, respectively, each bill was introduced in the House and Senate:
In Antoine v. State of Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (2-18-75), the Court equates the term "former Indian reservation" with "ceded land" and cites with approval Seymour v. Superintendent, 368 U.S. 351, 354, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) to clarify "unallotted non-Indian land in what was once the north half of the Colville Indian Reservation." 420 U.S. at 196, 95 S.Ct. at 946. In Seymour, the Court interpreted "diminished" under the 1892 Act to mean that the north half "should be `vacated and restored to the public domain,'" but that the south half "or the `diminished Colville Indian Reservation' . . . was `still reserved by the Government for [the Colville Indians'] use and occupancy.'" 368 U.S. at 354, 82 S.Ct. at 426. See also, Cook v. State of South Dakota, S.D., 215 N.W.2d 832 (1974).
The pattern which emerges is consistent. The circumstances surrounding the Act of May 27, 1910, 36 Stat. 440, which include relevant evidence from later attempts to further reduce the size of the Pine Ridge Reservation, consistently display an understanding among all parties that the "diminished" Pine Ridge Indian Reservation boundaries did not include, after 1910, Bennett County "formerly a part of the Pine Ridge Reservation." If this were not true it would not have been necessary to introduce H.R. 12777 in 1916. In this bill, which was never enacted, the tribe in effect was asking Congress for authority to reenter the unallotted lands of Bennett County and establish additional Indian allotments on land that had not yet been sold to settlers. If the 1889 boundaries of the Pine Ridge Reservation had not been diminished as the tribe argues here, there would have been no need for H.R. 12777. Doc. 57, H.R. 12777, March 6, 1916. These subsequent legislative materials consistently point to the conclusion that the 1889 boundaries of the Pine Ridge Reservation were diminished by the 1910 Act to exclude Bennett County.
ALLOTMENT EXCHANGE PROVISION
The Act of May 27, 1910, 36 Stat. 440, contains a provision which allowed Indians
It is clear that this provision contemplated three distinct areas: (1) land within the diminished reservation; (2) unallotted land within the ceded tract; and (3) Indian allotments within the ceded tract.
The operative language of the Act of 1910, set out supra, provides for the sale, disposal and cession of all unallotted lands within that part of the reservation to be ceded as described in the Act. The United States Supreme Court in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75), defined "diminished" in light of the Sisseton-Wahpeton Agreement and held:
In this holding the Court clearly equated "diminished reservation" with "diminished reservation boundaries." The only difference between the provision being interpreted by the Court in DeCoteau and the provision under consideration here is that in DeCoteau, the Act provided for cession of all unallotted reservation lands and the DeCoteau Court held that the original exterior boundaries of the Sisseton-Wahpeton Reservation were extinguished entirely. The only exclusive federal and tribal jurisdiction remaining over the ceded former reservation lands is limited to the retained allotments under 18 U.S.C. § 1151(c). In the instant case this principle applies to Bennett County, the area described in the 1910 Act to be sold, disposed of and ceded. In the judgment of this Court, the only exclusive federal and tribal jurisdiction remaining in Bennett County is over the allotments retained within this ceded area under 18 U.S.C. § 1151(c). Because the effect of the Act construed in DeCoteau was to extinguish tribal jurisdiction over all former reservation lands except for retained allotments, the DeCoteau Court felt that the tribe "would have been better advised to have carved out a diminished reservation, instead of or in addition to the retained allotments." Id. In the Act of 1910 under consideration here the Oglala Sioux Tribe did just that. The tribe retained a diminished reservation in the sense that the term is used by the DeCoteau Court. 18 U.S.C. § 1151(a) applies only to the remaining decreased reservation area because the 1889 boundaries of the Pine Ridge Reservation were changed to exclude the land described in the Act of May 27, 1910, 36 Stat. 440, the moment the presidential proclamation was signed.
SCHOOL LAND GRANT PROVISION
The school lands provision of the 1910 Act, 36 Stat. 440, is further evidence of Congress' intent to vest jurisdiction over unallotted ceded lands in the State of South Dakota. The provision reads:
As is explained in the Senate and House Reports, the necessity for this school land grant was to comply with the enabling act which admitted South Dakota to the Union:
Unless the 1910 Act, 36 Stat. 440, effectively extinguished the reservation or Indian country character of the land to be ceded and restored this land to the public domain, the enabling act would not be complied with. In DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75), the Court considered the school lands provision of the 1891 Act, § 30, 26 Stat. 1039, which reads:
The DeCoteau court ruled the provision irrelevant to the jurisdictional issue in that case. The provision construed in DeCoteau, however, is entirely different in character from the provision in this case. Because this is a grant of land the enabling act must be complied with. Unlike DeCoteau, there exists in this case legislative history demonstrating that this school grant provision was an integral part of the cession agreement. Inspector McLaughlin read and explained this provision to the tribal council during negotiations on both Senate Bill 7380 and Senate Bill 2341, and the tribe gave its approval to and "acquiesed in" Senate Bill 2341. Doc. 31, Report No. 83563, supra, at 4. Congressman Burke explained to the House of Representatives and Senator Gamble explained to the Senate that this clause was necessary to conform with the provisions of the act admitting the State of South Dakota into the Union. S.Rep.No. 910, supra, at 2; S.Rep.No. 69, supra, at 4-5; H.Rep.No. 333, supra, at 2. In order to comply with the enabling act, a grant of school land must be conditioned on extinguishment of the reservation character of the tract of land to be ceded and restoration of that tract to the public domain. Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (1974). See also, 38 Cong.Rec. 1423 (1904); 35 Cong.Rec. 3187 (1902); H.R.Rep.No. 7613, 59th Cong., 2d Sess. pp. 3-4 (1907); S.Rep. No. 6838, 59th Cong., 2d Sess., p. 3
CEDE AND TRUST PROVISION
Counsel for the tribe has argued that the provision of the 1910 Act which established a trust fund based upon the uncertain future sales of ceded land to settlers, in some manner distinguishes the 1910 Act in this case and the 1891 Act construed by DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75), wherein a sum certain was paid by the government and placed in trust for members of the Sisseton-Wahpeton tribe. The petitioner's argument is contrary to the facts and authorities set forth in 18 S.D.Law Rev. 85 (1973), cited with approval by this Court in Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (1974). Furthermore, and of greater significance, the Eighth Circuit Court of Appeals cited 18 S.D.Law Rev. 85 (1973), with approval and rejected a similar argument in United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973), and stated:
In essence, the only difference this Court detects between the two methods of opening ceded reservation lands is that in the certain-sum-in-trust method, all beneficial interest of the tribe in the land ended the moment the legislation became law. In the uncertain-sum-in-trust method, a beneficial interest remained in the tribe until the land was paid for. In both methods, however, the former exterior boundaries were extinguished the moment the President signed the proclamation opening the area for sale to the public.
Counsel for the tribe has argued that this construction is incorrect, but the case authority cited by the tribe in support of its sum-certain position, Ash Sheep Company v. United States, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507 (1920), undermines the crux of its argument and unequivocally supports this Court's construction.
In Ash Sheep, the issue decided is directly on point with the issue presented in this case: whether the Crow Tribe retained a beneficial interest in that portion of the reservation ceded in trust until the land had been disposed of under the terms of the 1904 Act which opened the ceded area to the public for sale. The Ash Sheep Court held that the Crow Tribe did retain a beneficial interest and stated:
The Ash Sheep opinion was directed to the status of the land prior to the President's proclamation opening the ceded area to the public for sale and settlement:
The Ash Sheep holding that the ceded Crow lands were not in all respects "public lands" prior to proclamation opening the lands to the public for sale and settlement, is certainly no indication that these ceded lands were to remain within the exterior boundaries of the Crow Reservation after proclamation. In fact the Ash Sheep Court stated otherwise:
The boundary lines referred to by the Court are specifically mentioned in five different places in the 1904 Act. See, 33 Stat. 352-360, Arts. 4, 9, Secs. 3, 4 (1904). Thus, the 1904 Act is susceptible of only one construction: at some point in time the exterior boundaries once encompassing the ceded area were necessarily extinguished.
In light of the fact that the 1904 provision is identical to that which established the trust relationship based upon uncertain future sales of land to settlers in the instant case, the argument of the tribe that this arrangement could not have been intended to extinguish exterior boundaries is without merit. In fact, the entire thrust of Ash Sheep is addressed to the force and effect of this very provision and set out in Ash Sheep as follows:
Therefore, in accordane with Ash Sheep and Condon, it is the judgment of this Court that Congress, in this provision of the 1910 Act, simply utilized a new method of opening Indian lands to sale and settlement by the public, and of restoring opened lands to the public domain. Under this method the exterior boundaries of the ceded former Indian land were extinguished, as well as tribal and federal jurisdiction over the unallotted land within the ceded area, at the moment the President signed the proclamation. The Indians, however, retained a beneficial interest in the ceded lands until such former Indian land was sold and paid for. This holding agrees with this Court's finding in Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (1974), wherein this Court set forth at length the congressional statements and other legislative history relating to the congressional change in policy which resulted in this method of opening Indian lands and restoring such land to the public domain. See H.R.10418, 58th Cong., 2d Sess., Jan. 21, 1904, p. 2; 35 Cong.Rec. 3187-88 (1902); 35 Cong.Rec. 4801-02, 4807 (1902); 38 Cong.Rec. 1423 (1904).
The jurisdictional history of the ceded area subsequent to passage of the Act under consideration was treated
In the instant case this Court finds that South Dakota has exercised uninterrupted, unquestioned jurisdiction over the unallotted lands in Bennett County for 65 years, and continues to do so. The Official Cartographic Record of Indian Reservations supports this finding and shows that the Department of the Interior, General Land Office, and the Bureau of Indian Affairs since 1910 has treated Bennett County as former reservation area.
Since the early 1890s, the Official Map of the Office of Indian Affairs displaying the size and shape of all Indian reservations within the United States has been prepared and updated each year under the authority and direction of the Commissioner of Indian Affairs and appended to his Annual Report. The exterior boundaries of each reservation were depicted by solid lines and the reservation area within was marked in orange color and superimposed upon the map of the United States. When a treaty or cession disestablished a reservation or a portion of one, and the area subsequently opened to the public, the ceded area was no longer color coded as reservation. For example, this treatment was accorded changes in the Great Sioux Reservation in 1888 and 1889, as well as the Oklahoma Reservation cessions between 1891-1900. From the early 1890s to 1908, exterior boundaries of the Pine Ridge Reservation were drawn around what is now Bennett, Washabaugh, and Shannon Counties and contained approximately 2,765,000 acres and were color coded as reservation. The 1909 Official Map of Indian Reservations excluded from the Rosebud Reservation Gregory and Tripp Counties and labeled these counties "Opened" reservation. The 1912 Official Map excluded Bennett County from the color coded reservation area and labeled Bennett County "Opened" reservation. The remainder of the Pine Ridge Reservation not affected by the Act of May 27, 1910, 36 Stat. 440, is color coded as "Indian Reservation". In 1918 the Official Map of Indian Reservations changed again. Bennett County, affected by the 1910 Act, and the four counties of Gregory, Tripp, Lyman and Mellette, affected by the Rosebud Acts, were shaded in grey and labeled "Former Reservation". See the identical treatment given this record in DeCoteau, n. 27.
The Office of Indian Affairs compiled and published another separate set of Official Maps which were revised periodically rather than annually, for each major reservation in the United States. The 1910 map shows Bennett County within the exterior boundaries of the Pine Ridge Reservation in the small index map in the upper left corner, but excludes Bennett County from the exterior boundaries of the reservation on the official scale map. Across Bennett County is handwritten the phrase "Opened to Settlement". Along the exterior boundaries of the reservation which exclude Bennett County are printed the words "Diminished Reservation", and along the boundaries of Bennett County are printed the words "Ceded Lands." Doc. 6834, National Archives, Record Group 75. Charles H. Bates, Special Allotting Agent of the Bureau of Indian Affairs, plotted the allotments completed as of 1913 on a copy of the 1910 Official Map. On the official scale map Bennett County is excluded from the exterior boundaries of the Pine Ridge Reservation and across Bennett County is written "Opened to Homestead Settlement." Along the exterior boundaries of the reservation, which excludes Bennett County, are written the words "Diminished Reservation", and along the boundaries of Bennett County are written the
Other official maps of this period are those published periodically under the direction of the General Land Office which is responsible for the cartographic record of the United States. Again, the treatment accorded the Pine Ridge Reservation in these documents reflects the decisions of Congress and the understanding of the agencies that the Act of 1910 diminished the boundaries of that reservation by excluding Bennett County therefrom. Before 1910 the title "Pine Ridge Indian Reservation" extended over the entire area enclosed by the 1889 boundaries. On the 1918 revision, the same title was relocated so as not to extend into Bennett County. Doc. 49, National Archives Cartographic Record (1918). This cartographic record of the Pine Ridge Reservation shows a consistent pattern and is probative evidence that the Act of 1910 diminished the boundaries of the reservation and restored the ceded land, Bennett County, to the public domain.
The language used on the face of the 1910 Act, when given its plain and ordinarily understood meaning, shows a clear congressional intent to sell and dispose of all unallotted lands within the described portion of the Pine Ridge Reservation, to diminish the 1889 boundaries of the reservation by excluding all of Bennett County therefrom, and to restore the unallotted lands within Bennett County to the public domain. Contrary to the situation presented in Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), which militated persuasively against a finding of termination, in this case "the face of the Act" and its "surrounding circumstances" and "legislative history", all point unmistakably to the conclusion that South Dakota has had since 1910, and continues to have, jurisdiction over all unallotted lands within Bennett County. DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75). The 1910 Act was not a unilateral action by Congress but the result of a previously negotiated agreement, to which the tribe gave their informed consent. The "familiar forces" recognized in DeCoteau were at work upon the Pine Ridge Reservation and pressure from white farmers, merchants and railroad men caused Congressmen to covet Indian lands. The authority was available under the 1887 General Allotment Act, Section 12 of the 1889 Act, and under Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L. Ed. 299 (1903), to sell and dispose of surplus Indian lands to white settlers, with the proceeds of these sales being held in trust for the Indians' benefit. Mattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973).