MR. JUSTICE STEWART delivered the opinion of the Court.
These two cases, consolidated for decision, raise the single question whether the Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty between the United States and the Sisseton and Wahpeton bands of Sioux Indians, was terminated and returned to
The 1867 boundaries of the Lake Traverse Reservation enclose approximately 918,000 acres of land. Within the 1867 boundaries, there reside about 3,000 tribal members and 30,000 non-Indians. About 15% of the land is in the form of "Indian trust allotments"; these are individual land tracts retained by members of the Sisseton-Wahpeton Tribe when the rest of the reservation lands were sold to the United States in 1891. The trust allotments are scattered in a random pattern throughout the 1867 reservation area. The remainder of the reservation land was purchased from the United States by non-Indian settlers after 1891, and is presently inhabited by non-Indians.
It is common ground here that Indian conduct occurring on the trust allotments is beyond the State's jurisdiction, being instead the proper concern of tribal or federal authorities. In the two cases before us, however, the State asserted jurisdiction over Indians based on conduct occurring on non-Indian, unallotted land within the 1867 reservation borders.
The petitioner in No. 73-1148, Cheryl Spider DeCoteau, is the natural mother of Herbert John Spider and Robert Lee Feather; all are enrolled members of the Sisseton-Wahpeton Tribe. Both children have been assigned to foster homes by order of the respondent District County Court for the Tenth Judicial District of South Dakota. The petitioner gave Robert up for adoption in March of 1971, and Herbert was later separated from her through neglect and dependency proceedings in the respondent court, initiated by the State Welfare Department.
The relators in No. 73-1500 are enrolled members of the tribe who were convicted in South Dakota courts of various violations of the State's penal laws committed on non-Indian lands within the 1867 reservation boundaries. The relators, in the custody of a state penitentiary, separately petitioned for writs of habeas corpus in the United States District Court for the District of South Dakota, alleging that the state courts had lacked criminal jurisdiction over their conduct within the 1867 reservation boundaries. The District Court summarily denied the petitions, but the Court of Appeals for the Eighth Circuit reversed.
We granted certiorari in the two cases, 417 U.S. 929, to resolve the conflict between the Supreme Court of South Dakota and the Court of Appeals for the Eighth Circuit
When the Sioux Nation rebelled against the United States in 1862, the Sisseton and Wahpeton bands of the Nation remained loyal to the Federal Government, many members serving as "scouts" for federal troops. This loyalty went unrecognized, however, when the Government confiscated the Sioux lands after the rebellion. In a belated act of gratitude, the United States entered into a treaty with the Sisseton-Wahpeton Tribe in 1867. The treaty granted the tribe a permanent reservation in the Lake Traverse area, and provided for tribal self-government under the supervision of federal agents.
But familiar forces soon began to work upon the Lake Traverse Reservation. A nearby and growing population of white farmers, merchants, and railroad men began urging authorities in Washington to open the reservation to general settlement. The Indians, suffering from disease and bad harvests, developed an increasing need for cash and direct assistance.
Against this background, a series of negotiations took place in 1889 with the objective of opening the Lake
By summer, the Commissioner of Indian Affairs had apparently been won over, for in August 1889, he sent to the Secretary of the Interior a set of draft instructions for the guidance of a Commission to negotiate with the Sisseton and Wahpeton Indians for the sale of their surplus lands.
While these proposed instructions suggested that sale of all the surplus lands might be "inadvisable," the negotiations in fact proceeded toward such a total sale. The three Government representatives
President Harrison immediately submitted the Agreement to Congress for legislative approval. While the
As passed by the Congress, the 1891 Act recited and ratified the 1889 Agreement with the tribe and appropriated $2,203,000 to pay the tribe for the ceded land and to make good the tribe's "loyal scout" claim. § 27, 26 Stat. 1038. A portion of the moneys was made available for immediate distribution to tribal members, on a per capita basis, and the remaining funds were, as had been agreed, "placed in the Treasury of the United States, to the credit of said . . . Indians [at five percent interest]. . . for the education and civilization of said bands of Indians or members thereof." § 27, 26 Stat. 1039. The Act further provided that the 160-acre allotments were to be effected "as soon as practicable," pursuant to the terms of the General Allotment Act. § 29, 26 Stat. 1039. Finally, the Act provided that upon payment of
On April 11, 1892, President Harrison declared open for settlement all "lands embraced in said reservation, saving and excepting the lands reserved for and allotted to said Indians."
The jurisdictional history subsequent to the 1891 Act is not wholly clear, but it appears that state jurisdiction over the ceded (i. e., unallotted) lands went virtually unquestioned until the 1960's. The Lake Traverse Reservation was eliminated from the maps published by the Commissioner of Indian Affairs until 1908; thereafter, some Government maps included the area as an "open" or "former" reservation, while more recent ones have characterized it simply as a "reservation."
But the Commissioner of Indian Affairs approved a new tribal constitution in 1966, which stated: "The jurisdiction of the Sisseton-Wahpeton Sioux Tribe shall extend to lands lying in the territory within the original confines of the Lake Traverse Reservation as described in Article III of the Treaty of February 19, 1867."
This Court does not lightly conclude that an Indian reservation has been terminated. "[W]hen Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress." United States v. Celestine, 215 U.S. 278, 285. The congressional intent must be clear, to overcome "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, 174, quoting Carpenter v. Shaw, 280 U.S. 363, 367. Accordingly, the Court requires that the "congressional determination to terminate. . . be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history." Mattz v. Arnett, 412 U. S., at 505. See also Seymour v. Superintendent, 368 U.S. 351, and United States v. Nice, 241 U.S. 591. In particular, we have stressed that reservation status may survive the mere opening of a reservation to settlement, even when the moneys paid for the land by the settlers are placed in trust by the Government for the Indians' benefit. Mattz v. Arnett, supra, and Seymour v. Superintendent, supra.
It is true that the Sisseton-Wahpeton Agreement was unique in providing for cession of all, rather than simply a major portion of, the affected tribe's unallotted lands. But, as the historical circumstances make clear, this was not because the tribe wished to retain its former reservation, undiminished, but rather because the tribe and the Government were satisfied that retention of allotments would provide an adequate fulcrum for tribal affairs. In such a situation, exclusive tribal and federal jurisdiction is limited to the retained allotments. 18
The Court of Appeals thought that a finding of termination here would be inconsistent with Mattz and Seymour. This is not so. We adhere without qualification to both the holdings and the reasoning of those decisions. But the gross differences between the facts of those cases and the facts here cannot be ignored.
In Mattz, the Court held that an 1892 Act of Congress
In Seymour, the Court held that a 1906 Act of Congress
Thus, in finding a termination of the Lake Traverse Reservation, we are not departing from, but following and reaffirming, the guiding principles of Mattz and Seymour.
Until the Court of Appeals altered the status quo, South Dakota had exercised jurisdiction over the unallotted lands of the former reservation for some 80 years. Counsel for the tribal members stated at oral argument that many of the Indians have resented state authority and suffered under it. Counsel for the State denied this and argued that an end to state jurisdiction would be calamitous for all the residents of the area, Indian and non-Indian alike. These competing pleas are not for us to adjudge, for our task here is a narrow one. In the 1889 Agreement and the 1891 Act ratifying it, Congress and the tribe spoke clearly. Some might wish they had spoken differently, but we cannot remake history.
The judgment in No. 73-1148 is affirmed, and that in No. 73-1500 is reversed.
It is so ordered.
APPENDIX A TO OPINION OF THE COURT
TREATY OF FEB. 19, 1867, 15 STAT. 505, AS AMENDED, 15 STAT. 509
Whereas it is understood that a portion of the Sissiton and Warpeton bands of Santee Sioux Indians, numbering from twelve hundred to fifteen hundred persons, not only preserved their obligations to the government of the United States, during and since the outbreak of the Medewakantons and other bands of Sioux in 1862, but
Whereas Congress, in confiscating the Sioux annuities and reservations, made no provision for the support of these, the friendly portion of the Sissiton and Warpeton bands, and it is believed [that] they have been suffered to remain homeless wanderers, frequently subject to intense suffering from want of subsistence and clothing to protect them from the rigors of a high northern latitude, although at all times prompt in rendering service when called upon to repel hostile raids and to punish depredations committed by hostile Indians upon the persons and property of the whites; and
Whereas the several subdivisions of the friendly Sissitons and Warpeton bands ask, through their representatives, that their adherence to their former obligations of friendship to the government and people of the United States be recognized, and that provision be made to enable them to return to an agricultural life and be relieved from a dependence upon the chase for a precarious subsistence: therefore,
A treaty has been made and entered into, at Washington city, District of Columbia, this nineteenth day of February, A. D. 1867, by and between Lewis V. Bogy, Commissioner of Indian Affairs, and William H. Watson, commissioners, on the part of the United States, and the undersigned chiefs and headmen of the Sissiton and
ARTICLE I. The Sissiton and Warpeton bands of Dakota Sioux Indians, represented in council, will continue their friendly relations with the government and people of the United States, and bind themselves individually and collectively to use their influence to the extent of their ability to prevent other bands of Dakota or other adjacent tribes from making hostile demonstrations against the government or people of the United States.
ARTICLE II. The said bands hereby cede to the United States the right to construct wagon roads, railroads, mail stations, telegraph lines, and such other public improvements as the interest of the government may require, over and across the lands claimed by said bands (including their reservation as hereinafter designated) over any route or routes that that may be selected by authority of the government, said lands so claimed being bounded on the south and east by the treaty line of 1851 and the Red river of the North to the mouth of Goose river, on the north by the Goose river and a line running from the source thereof by the most westerly point of Devil's lake to the Chief's Bluff at the head of James river, and on the west by the James river to the mouth of Mocasin river, and thence to Kampeska lake.
ARTICLE III. For and in consideration of the cession above mentioned, and in consideration of the faithful and important services said to have been rendered by the friendly bands of Sissitons and Warpetons Sioux here represented, and also in consideration of the confiscation of all their annuities, reservations, and improvements, it is agreed that there shall be set apart for the members of said bands who have heretofore surrendered to the authorities of the government, and were not sent to the Crow Creek reservation, and for the members of said
Beginning at the head of Lake Travers[e], and thence along the treaty line of the treaty of 1851 to Kampeska lake; thence in a direct line to Reipan or the northeast point of the Coteau des Prairie[s], and thence passing north of Skunk lake, on the most direct line to the foot of Lake Traverse, and thence along the treaty line of 1851 to the place of beginning.
ARTICLE IV. It is further agreed that a reservation be set apart for all other members of said bands who were not sent to the Crow Creek reservation, and also for the Cut head bands of Yanktonais Sioux, a reservation bounded as follows, viz.:
Beginning at the most easterly point of Devil's lake; thence along the waters of said lake to the most westerly point of the same; thence on a direct line to the nearest point on the Cheyenne river; thence down said river to a point opposite the lower end of Aspen island, and thence on a direct line to the place of beginning.
ARTICLE V. The said reservations shall be apportioned in tracts of (160) one hundred and sixty acres to each head of a family, or single person over the age of (21) twenty-one years, belonging to said bands, and entitled to locate thereon, who may desire to locate permanently and cultivate the soil as a means of subsistence: each (160) one hundred and sixty acres so allotted to be made to conform to the legal subdivisions of the government surveys, when such surveys shall have been made; and every person to whom lands may be allotted under the provisions of this article who shall occupy and cultivate a portion thereof for five consecutive years shall thereafter be entitled to receive a patent for the same so soon as he shall have fifty acres of said tract fenced, ploughed, and in crop: Provided, [That] said patent shall not authorize
ARTICLE VI. And, further, in consideration of the destitution of said bands of Sissiton and Warpeton Sioux, parties hereto, resulting from the confiscation of their annuities and improvements, it is agreed that Congress will, in its own discretion, from time to time make such appropriations as may be deemed requisite to enable said Indians to return to an agricultural life under the system in operation on the Sioux reservation in 1862; including, if thought advisable, the establishment and support of local and manual labor schools; the employment of agricultural, mechanical, and other teachers; the opening and improvement of individual farms; and generally such objects as Congress in its wisdom shall deem necessary to promote the agricultural improvement and civilization of said bands.
ARTICLE VII. An agent shall be appointed for said bands, who shall be located at Lake Traverse; and whenever there shall be five hundred (500) persons of said bands permanently located upon the Devil's Lake reservation there shall be an agent or other competent person appointed to superintend at that place the agricultural, educational, and mechanical interests of said bands.
ARTICLE VIII. All expenditures under the provisions of this treaty shall be made for the agricultural improvement and civilization of the members of said bands authorized to locate upon the respective reservations, as hereinbefore specified, in such manner as may be directed by law; but no goods, provisions, groceries, or other articles—except materials for the erection of houses and articles to facilitate the operations of agriculture—shall be issued to Indians or mixed-bloods on either reservation
ARTICLE IX. The withdrawal of the Indians from all dependence upon the chase as a means of subsistence being necessary to the adoption of civilized habits among them, it is desirable that no encouragement be afforded them to continue their hunting operations as means of support, and therefore, it is agreed that no person will be authorized to trade for furs or peltries within the limits of the land claimed by said bands, as specified in the second article of this treaty, it being contemplated that the Indians will rely solely upon agricultural and mechanical labor for subsistence, and that the agent will supply the Indians and mixed-bloods on the respective reservations with clothing, provisions, &c., as set forth in article eight, so soon as the same shall be provided for that purpose. And it is further agreed that no person not a member of said bands, parties hereto whether white, mixed-blood, or Indian, except persons in the employ of the government or located under its authority, shall be permitted to locate upon said lands, either for hunting, trapping, or agricultural purposes.
ARTICLE X. The chiefs and headmen located upon either of the reservations set apart for said bands are authorized to adopt such rules, regulations, or laws for the security of life and property, the advancement of civilization, and the agricultural prosperity of the members of said bands upon the respective reservations, and shall have authority, under the direction of the agent, and without expense to the government, to organize a force sufficient to carry out all such rules, regulations, or
APPENDIX B TO OPINION OF THE COURT
AGREEMENT OF 1889, RATIFIED BY THE ACT OF MAR. 3, 1891, 26 STAT. 1035
Whereas, by section five of the act of Congress entitled "An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and Territories over the Indians, and for other purposes," approved February eighth, eighteen hundred and eighty-seven, it is provided "That at any time after lands have been allotted to all the Indian 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 the said tribe, in conformity with the treaty or statute under which such reservation is held, of such portions of its reservations 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; and the form and manner of executing such release shall also be prescribed by Congress.
Whereas the Sisseton and Wahpeton bands of Dakota or Sioux Indians are desirous of disposing of a portion of the land set apart and reserved to them by the third article of the treaty of February nineteenth, eighteen hundred and sixty-seven, between them and the United States,
Now, therefore, this agreement made and entered into in pursuance of the provisions of the Act of Congress approved February eighth, eighteen hundred and eighty-seven, aforesaid, at the Sisseton Agency, South Dakota, on this the twelfth day of December, eighteen hundred and eighty-nine, by and between Eliphalet Whittlesey, D. W. Diggs, and Charles A. Maxwell, on the part of the United States, duly authorized and empowered thereto, and the chiefs, head-men, and male adult members of the Sisseton and Wahpeton bands of Dakota or Sioux Indians, witnesseth:
The Sisseton and Wahpeton bands of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said bands of Indians as aforesaid remaining after the allotments and additional allotments provided for in article four of this agreement shall have been made.
In consideration for the lands ceded, sold, relinquished, and conveyed as aforesaid, the United States stipulates and agrees to pay to the Sisseton and Wahpeton bands of Dakota or Sioux Indians, parties hereto, the sum of two dollars and fifty cents per acre for each and every acre thereof, and it is agreed by the parties hereto that the sum so to be paid shall be held in the Treasury of the United States for the sole use and benefit of the said bands of Indians; and the same, with interest thereon at three per centum per annum, shall be at all times subject to appropriation by Congress for the education and civilization of the said bands of Indians, or members thereof,
The United States stipulates and agrees to pay to the Sisseton and Wahpeton bands of Dakota or Sioux Indians, parties hereto, per capita, the sum of three hundred and forty-two thousand seven hundred and seventy-eight dollars and thirty-seven cents, being the amount found to be due certain members of said bands of Indians who served in the armies of the United States against their own people, when at war with the United States, and their families and descendants, under the provisions of the fourth article of the treaty of July twenty-third, eighteen hundred and fifty-one, and of which they have been
The United States further agrees to pay to said bands of Indians, per capita, the sum of eighteen thousand and four hundred dollars annually from the first day of July, eighteen hundred and eighty-eight, to the first day of July, nineteen hundred and one, the latter date being the period at which the annuities to said bands of Indians were to cease, under the terms of the fourth article of the treaty of July twenty-third, eighteen hundred and fifty-one, aforesaid; and it is hereby further stipulated and agreed that the aforesaid sum of three hundred and forty-two thousand seven hundred and seventy-eight dollars and thirty-seven cents, together with the sum of eighteen thousand and four hundred dollars, due the first day of July, eighteen hundred and eighty-nine, shall become immediately available upon the ratification of this agreement.
It is further stipulated and agreed that there shall be allotted to each individual member of the bands of Indians, parties hereto, a sufficient quantity, which, with
The agreement concluded with the said Sisseton and Wahpeton bands of Dakota or Sioux Indians, on the eighth day of December, eighteen hundred and eighty-four, granting a right of way through their reservation for the Chicago, Milwaukee and Saint Paul Railway, is hereby accepted, ratified and confirmed.
This agreement shall not take effect and be in force until ratified by the Congress of the United States.
In witness whereof we have hereunto set our hands and seals the day and year above written.
The foregoing articles of agreement having been fully explained to us, in open council, we, the undersigned, being male adult members of the Sisseton and Wahpeton
Simon Ananangmari (his x mark), and others
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.
In my view South Dakota has no jurisdiction over either the civil suit in the first of these two cases or the criminal prosecutions involved in the second. The so-called jurisdictional acts took place in "Indian country" over which the federal regime has exclusive jurisdiction until and unless the United States relinquishes it, and that has not been done here. Here, as in United States v. Mazurie, 419 U.S. 544 (1975), the acts were done within "Indian country" as defined in 18 U. S. C. § 1151, for they occurred on land "within the limits of" an Indian reservation "notwithstanding the issuance of any patent . . . ."
Petitioner DeCoteau is an enrolled member of the Sisseton-Wahpeton Sioux Tribe against whom South Dakota brought dependency and neglect proceedings in the state courts, seeking to terminate her parental authority over her minor children, also enrolled members of the tribe. The parties stipulated that all of the facts relevant to the court's order took place on the Lake Traverse Reservation which was established under the Treaty of February 19, 1867, 15 Stat. 505. Approximately half of the incidents involved occurred on allotted Indian land, and half occurred on land patented to non-Indians. The South Dakota Supreme Court ruled that since some of the incidents pertaining to dependency and neglect occurred on nontrust land within the reservation, they happened on land in "non-Indian country." 87 S. D. 555, 561, 211 N.W.2d 843, 846 (1973).
The Treaty of Feb. 19, 1867, granted these Indians a permanent reservation with defined boundaries and the right to make their own laws and be governed by them subject to federal supervision, 15 Stat. 505, as amended. No more is asked here; and it must be conceded that the jurisdictional acts took place within the contours of that reservation.
In 1889 these Indians and three commissioners entered into an Agreement that, to furnish the Indians the wherewithal to survive, some of their lands would be opened for settlement. S. Exec. Doc. No. 66, 51st Cong., 1st Sess., 19 (1890). That Agreement was the occasion for the Act of Mar. 3, 1891, 26 Stat. 1035. The 1891 Act sets forth the entire Agreement, which Agreement was made under the authority of the General Allotment Act of Feb. 18, 1887, 24 Stat. 388, authorizing the Secretary of the Interior, if the President approves, to negotiate with an Indian tribe for the acquisition by the United States of such portions of its lands which the tribe consents to sell on terms "considered just and equitable." § 5, 24 Stat. 389. The Indians undertook to sell all their claim "to all the unallotted lands within the limits of the reservation." 26 Stat. 1036. There is not a word to suggest that the boundaries of the reservation were altered. The proceeds of sale were to be used "for the education and civilization" of these Indians. § 27, 26 Stat. 1039. The
The dimensions of the tragedy inflicted by today's decision are made apparent by the facts pertaining to the management of this reservation.
This tribe is a self-governing political community, a status which is not lightly impaired, McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168 (1973); Williams v. Lee, 358 U.S. 217, 220 (1959). The South Dakota decision limits tribal jurisdiction to the "closed" portion of the reservation. That tears the reservation asunder. The only provision of the 1891 Act which extends state jurisdiction into the reservation is a clause in § 30 which exempts sections 16 and 36 and reserves them "for common school purposes," and makes them "subject to the laws of the State wherein located." That language was deemed necessary because the South Dakota Enabling Act did not reserve the 16th and 36th sections in Indian reservations for school purposes; hence this special provision had to be made.
Today only a small percentage of the members of the tribe live on the "closed" part of the reservation. The office of the local Bureau of Indian Affairs is at Sisseton which is not in the "closed" reservation. Federal services to members of the tribe extend to those residing on land opened to settlement as well as to those on trust allotments. The United States supports a tribal government to make and enforce laws throughout the land within the exterior boundaries of the reservation. The attitude of Congress, of the Department of the Interior (under which the Bureau of Indian Affairs functions), and of the tribe is that the jurisdiction of the tribe extends throughout the territory of the reservation as described in the Treaty. A
The Code of the tribe asserts a jurisdiction over the same domain:
The tribe has a police force and a court. The tribe provides rental housing of 240 units. It provides fire protection. It is the major employer. It operates the only garbage collection and disposal. It is the major governmental entity within the reservation boundaries, servicing Indians
In Seymour v. Superintendent, 368 U.S. 351, 358 (1962), we were invited to make a like construction of "Indian country" as used in 18 U. S. C. § 1151. We rejected that offer saying:
This case involves jurisdiction over Indians—not non-Indians as in United States v. Mazurie, 419 U.S. 544 (1975)—within the boundaries of the reservation. If South Dakota has its way, the Federal Government and the tribal government have no jurisdiction when an act takes place in a homesteaded spot in the checkerboard; and South Dakota has no say over acts committed on "trust" lands. But where in fact did the jurisdictional act occur? Jurisdiction dependent on the "tract book" promises to be uncertain and hectic. Many acts are ambulatory. In a given case, who will move—the State, the tribe, or the Federal Government? The contest promises to be unseemly, the only beneficiaries being those who benefit from confusion and uncertainty. Without state interference, Indians violating the law within the reservation would be subject only to tribal jurisdiction, which puts the responsibility where the Federal Government can supervise it. Checkerboard jurisdiction cripples the United States in fulfilling its fiduciary responsibilities of guardianship and protection of Indians. It is the end of tribal authority for it introduces such an element of uncertainty as to what agency has jurisdiction as to make modest tribal leaders abdicate and aggressive ones undertake the losing battle against superior state authority. As Mr. Justice Miller stated nearly 100 years ago concerning the
Allen I. Olson, Attorney General, and Paul M. Sand, First Assistant Attorney General, filed a brief for the State of North Dakota as amicus curiae urging affirmance in No. 73-1148, joined by the Attorneys General for their respective States as follows: Evelle J. Younger of California, W. Anthony Park of Idaho, Richard C. Turner of Iowa, Robert L. Woodahl of Montana, Clarence A. H. Meyer of Nebraska, Robert List of Nevada, David L. Norvell of New Mexico, Larry D. Derryberry of Oklahoma, Slade Gorton of Washington, and Robert W. Warren of Wisconsin.
Briefs of amici curiae urging affirmance in No. 73-1500 were filed by Glen A. Wilkinson, Jerry C. Straus, and Richard A. Baenen for the Arapahoe Tribe of Wind River Reservation et al., and by the Sisseton-Wahpeton Sioux Tribe.
"[The Lake Traverse Reservation] is a great detriment to our interests, as it blocks the progress of two or three lines of railroad that we are very anxious to see completed.
"We need these roads badly, and the opening of the reservation would give new impetus to immigration which has been attracted by government lands further west.
"Any information that will enable the citizens of this section to render any service that may be needed in hastening the opening will be appreciated." National Archives Records of the Bureau of Indian Affairs, Record Group No. 75, Letters Received; Special Case 147 (Sisseton), Letter No. 26163-1889, encls. 2, 3, and 5.
In an enclosed "resolution," Diggs and six other local, non-Indian citizens from the counties adjacent to the reservation promised to use their influence to secure to the tribe further congressional appropriations, mentioned in the 1867 Treaty, Art. VI, as compensation for the tribe's loyalty during the 1862 Sioux uprising. The evident goal of the effort was to assure tribal consent to an agreement opening the reservation to settlement and development.
On December 13, 1890, while the cession Agreement of 1889 was still before Congress, the Governor of South Dakota wrote the Secretary of the Interior that the tribe was in a "destitute condition" and urged that the Government "at once take steps to relieve the necessities [of] this long suffering people . . . slowly suffering death from privation and starvation." National Archives Records of the Bureau of Indian Affairs, Record Group No. 75, Letters Received: Special Case 147 (Sisseton), Letter No. 39462-1890.
"We first proposed to reserve one section in each township for school purposes, and certain other portions of the reservation for future allotments and the tracts now occupied by the Government for agency and school purposes, and also such tracts as were occupied and used for educational and missionary purposes among the Indians, but upon informal inquiry among the Indians it was learned that this plan would not meet with their approval. They argued that as the money, interest, and perhaps some of the principal of the funds arising from the sale of the surplus lands were to be used for educational and civilization purposes, it would not be proper for them also to reserve a large quantity of land for educational and Government purposes, and admitting the force of the argument we did not press the matter, believing it better that the Government should own the lands upon which the agency and school buildings are located, and that missionary societies and churches should have the privilege of purchasing the land now occupied by them. We also learned that the Indians preferred to have the allotments equalized so that each person, including married women, would have 160 acres, the plan outlined in your annual report, and sell all the surplus lands remaining, and hence the provisions of article four." Ibid.
The sale of all unallotted lands was not an irrational choice in light of the unusually large number of allotments which the Agreement specified. President Harrison later noted this in submitting the 1889 Agreement to the Congress:
"This agreement involves a departure from the terms of the general allotment act in at least one important particular. It gives to each member of the tribe 160 acres of land without regard to age or sex, while the general law gives this allotment only to heads of families." Id., at 1.
During the negotiations, the intent of all parties to effect a clear conveyance of all unallotted lands was evident. For instance, on December 3, 1889, Gabriel Renville, a tribal spokesman, stated:
"I have spoken for all of the people, and it is their wish that I should say these things. In the past there has been lots of land sold, but we have not been benefited by the sales. In 1867 they promised us they would help us, but they have not helped us very much for many years. Let them first settle our claim [loyal scout claim] and then we will talk about our surplus lands. We are now citizens and can talk with you as such, and do not care to talk about shoe pacs, etc., but cash. We can buy for ourselves what we need if payment is made in cash, and then we do not care to have an agency here after the surplus lands have been sold. The people have asked me to say this as their wish." Councils Report 19-20.
Michael Renville, another tribal spokesman, stated:
"We have always said that when the sale of surplus lands was considered we would ask that 160 acres be given to each member of the tribe . . . . We said in council that we would not sell surplus lands until back annuities [for the loyal scout claim] were paid, but you say that if the lands are now sold the back annuities would be paid at the same time. This pleases us." Id., at 21.
In explaining a proposed draft of the agreement to the tribal members, negotiator Whittlesey noted:
"After you have received your back annuities, each receive 160 acres of land; you will sell all that is left . . . . There are 918,000 acres in the reservation, about 127,000 acres now allotted; it will take, we think, about 130,000 to complete allotments; that will leave about 660,000 acres to sell." Id., at 22.
The Indians were aware that they were taking a not insignificant step in selling the reservation lands. Gabriel Renville stated:
"This little reservation is ours, and all we have left. There is nothing in our treaty that says that we must sell. It was given us as a permanent home, but now we have decided to sell . . . ." Id., at 25.
In explaining the final agreement to the Secretary of the Interior, the Commissioner of Indian Affairs noted:
"The reservation contains 918,780 acres, and there have been 127,887 acres allotted, but all the Indians who are entitled have not yet received their allotments. It is almost impossible to give the accurate number of Indians entitled to allotments, for since the allotments were completed numerous applications have been made for land, and as before stated, it is known that all who are entitled have not received allotments. I think, taking these facts into consideration, that these people number between 1,500 and 1,600 souls, and taking the latter as a basis of calculation, it will require about 128,000 acres to make allotments and additional allotments provided for, making a total of 256,000 acres, leaving 662,780 acres to which the Indian title is extinguished by the terms of the agreement." Letter to the Secretary, S. Exec. Doc. No. 66, supra, at 4-5.
"By the terms of this Agreement the said bands of Indians agreed to cede, sell, relinquish, and convey to the United States the unallotted lands within the Lake Traverse Reservation."
"As to the equalization of allotments on the basis of 160 acres, provided in the bill, when viewed in the light of the fact that the additional allotments are in lieu of any residue which, under their title, these Indians could have reserved for the future benefit of their families, and the further fact that they are soon to assume the responsibilities of citizenship, with all it implies respecting the moral and material welfare of their families, we think that the departure from the general allotment act of 1887 in the case of these Indians is just and proper and should be allowed . . . .
"This reservation contains 918,780 acres of agricultural lands, 127,887 of which have been allotted to the Sisseton and Wahpeton Indians under the act of Congress approved February 8, 1887 (24 Stats., 388). The additional allotments, as provided in article 4 of the agreement, will require 112,113 acres, making a total of 240,002 acres, which leaves a surplus, including the lands occupied by the agency and missionary societies, of 678,778 acres, the Indian title to which will be extinguished by the terms of the agreement. The cost of the purchase, at $2.50 per acre, will amount to $1,696,945, which is to be a trust fund held by the United States for the benefit of these Indians. The appropriation named in the bill is estimated to cover the purchase, and pay the back annuities." S. Rep. No. 661, 51st Cong., 1st Sess., 1, 3-4 (1890).
Almost identical language appears in H. R. Rep. No. 1356, 51st Cong., 1st Sess., 1, 8-9 (1890).
"—cede, relinquish, and forever and absolutely surrender to the United States all their claim, title and interest of every kind and character in and to the following described tract of country . . . ." 26 Stat. 1016 (Citizen Band of Pottawatomie Indians).
"—cede, relinquish, and surrender, forever and absolutely, to the United States, all their claim, title and interest of every kind and character in and to the following described tract of country . . . ." 26 Stat. 1019 (Absentee Shawnee Indians).
"—cede, convey, transfer, relinquish, and surrender forever and absolutely, without any reservation whatever, express or implied, all their claim, title, and interest of every kind and character, in and to the lands embraced in the following described tract of country . . . ." 26 Stat. 1022 (Cheyenne and Arapahoe Tribes).
"—cede, grant, relinquish, and quitclaim to the United States all right, title, and claim which they now have, or ever had, to all lands in said Territories and elsewhere, except the portion of land within the boundaries of their present reservation in the Territory of Idaho . . . ." 26 Stat. 1027 (Coeur d'Alene Indians (I)).
"—cede, grant, relinquish, and quitclaim to the United States, all the right, title, and claim which they now have, or ever had, to the following-described portion of their reservation . . . ." 26 Stat. 1030 (Coeur d'Alene Indians (II)).
"—cede, sell, and relinquish to the United States all their right, title, and interest in and to all that portion of the Fort Berthold Reservation [as herein described] . . . ." 26 Stat. 1032 (Gros Ventres, Mandans, and Arickarees).
"—agree to dispose of and sell to the Government of the United States, for certain considerations hereinafter mentioned, all that portion of the Crow Indian Reservation [as herein described] . . . ." 26 Stat. 1040 (Crow Indians).
Counsel for the State has argued that the "school lands" provision of the 1891 Act, § 30, 26 Stat. 1039, is further evidence of Congress' intent to vest jurisdiction over unallotted lands in the State. Counsel for the tribal members would have us draw a contrary inference from the provision. The provision reads:
"That the lands by said agreement ceded, sold, relinquished, and conveyed to the United States shall immediately, upon the payment to the parties entitled thereto of their share of the funds made immediately available by this act, and upon the completion of the allotments as provided for in said agreement, be subject only to entry and settlement under the homestead and townsite laws of the United States, excepting the sixteenth and thirty-sixth sections of said lands, which shall be reserved for common school purposes, and be subject to the laws of the State wherein located . . . ." (Emphasis added.)
Counsel differ as to whether the emphasized phrase refers to the "lands by said agreement ceded, sold, relinquished, and conveyed to the United States," or to "the sixteenth and thirty-sixth sections of said lands." We think the disagreement irrelevant to the jurisdictional issue before us. The "school provision" was not part of the 1889 Agreement, and there is no indication in the legislative history that Congress intended the provision to qualify the terms of the cession of unallotted lands to the Government. In opening public lands to settlement, it was the usual practice of Congress to except the 16th and 36th sections from settlement and to reserve these to the State for common school purposes. Indeed, the 1891 Act contains an omnibus "school provision," applicable to all the agreements ratified therein, which reiterates this purpose. § 38, 26 Stat. 1044. Even if we were to assume, with counsel for the tribal members, that the "state law" phrase of § 30 refers only to school lands, the natural inference would be that state law is to govern the manner in which the 16th and 36th sections are to be employed "for common school purposes." This implies nothing about the presence or absence of state civil and criminal jurisdiction over the remainder of the ceded lands.
"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. This would withdraw about 29,000 acres of these lands and would leave 387,000 acres to be opened to settlement, and which would be affected by the proposed amendment."
See also 38 Cong. Rec. 1423, where Congressman Burke said:
"I would state that under the enabling act under which the State of South Dakota was admitted to the Union it was provided that sections 16 and 36 in said State should be reserved for the use of the common schools of that State, and it further provided that as to the lands within an Indian reservation the provisions of that grant would not become operative until the reservation was extinguished and the land restored to the public domain. That enabling act was passed by Congress on the 22d day of February, 1889. In March of that same year Congress ratified a treaty with the Sioux Indians in South Dakota for the cession of something like ten or eleven millions of acres of land, and made an express appropriation, in accordance with the provisions of the enabling act, to pay outright out of the Treasury the money for sections 16 and 36 of that land at the price stipulated for in the treaty."
"This reservation will be quickly settled by whites, bringing the arts of civilization, establishing schools in every township, so that you can send your children to school . . . . Another advantage is, that the whites will exchange work with you. This will enable you to cultivate 50 acres where you now cultivate 10. There are other advantages which I have not mentioned. One is you will have towns and railroads and good markets near you. All this will make your lands more valuable. . . . You hitch the two together and the white man and the Indian will pull together." S. Exec. Doc. No. 66, 51st Cong., 1st Sess., 24 (1890).
"WHEREAS, The Sisseton-Wahpeton Sioux Tribe is interested in the well-being of all the enrolled members of the tribe and
"WHEREAS, Minor children of Sisseton-Wahpeton descent have been placed in non-Indian foster and adoptive homes all over the United States.
"WHEREAS, The tribal council is in the process of researching the sovereign status of the tribal entity in respect to its jurisdiction as stated in the constitution of the Sisseton-Wahpeton Sioux Tribe, and,
"WHEREAS, It is the intent of the Sisseton-Wahpeton Sioux Tribe to establish its own method of social and economic development and well-being of the enrolled members, and,
"WHEREAS, It is the strong feeling of the tribal council to `make every stand possible to keep these children on the reservation' (minutes of June 6th council meeting) and `the tribal council would like these children to be placed in an Indian licensed home until an Indian home can be found for them to be adopted.'
"THEREFORE, BE IT RESOLVED, that Mr. Bert Hirsch, legal counsel from the Association of American Indian Affairs, will stand on these grounds in his argument in Roberts County Court on July 7, 1972 and future cases of this nature."