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Lower Brule Sioux Tribe v. South Dakota

ELR Citation: 27 ELR 20700
Nos. No. 96-1692, 104 F.3d 1017/(8th Cir., 01/09/1997)

The court holds that South Dakota, and not a Sioux tribe, has jurisdiction to regulate hunting and fishing by non-members of the tribe on lands and waters within the reservation that are owned in fee by non-members or that were taken by the U.S. Army Corps of Engineers (the Corps) for flood control. The court first holds that the tribe has no treaty rights that give it jurisdiction over lands and waters owned in fee by non-members. After the General Indian Allotment Act of 1887, the tribe no longer retained the exclusive use and benefit of lands conveyed to non-members, and Congress did not expressly delegate authority to the tribe to regulate non-member conduct on non-member-owned fee lands. Therefore, whatever regulatory power the tribe has under the Fort Laramie Treaty of 1868 no longer extends to lands held in fee by non-members. The court next holds that inherent sovereign power does not give the tribe jurisdiction, because no exception to the general rule that a tribe's inherent sovereign powers do not extend to the activities of non-members applies. The original title deeds for the lands and the purchase of hunting and fishing licenses do not give rise to the requisite consensual relationship between the tribe and non-members who hunt and fish on the fee lands. Nor does state regulation of non-member hunting and fishing threaten the political integrity, economic security, or health and welfare of the tribe. The court next holds that South Dakota has jurisdiction over hunting and fishing on lands and waters that were taken by the Corps for flood control through the Fort Randall and Big Bend Taking Acts. The Acts deprived the tribe of any treaty right to regulate non-member hunting and fishing in the taken areas, and it is clear that Congress provided the Corps with regulatory control over the taken areas. However, it is apparent from the language of the Taking Acts and the Flood Control Act of 1944 that Congress did not preempt state law. Moreover, the federal government has consistently expressed the view that the state has jurisdiction to regulate hunting and fishing by non-members on the taken lands. The court holds that the Corps has the authority to delegate regulatory and enforcement responsibilities to the state and has clearly manifested its intention to do so on the projects, lands, and waters at issue in this case.

A dissenting judge would hold that the tribe has inherent sovereign power over the lands at issue because the overlapping wildlife regulation scheme over lands within the reservation threatens or has some direct effect on the political integrity, economnic security, or health or welfare of the tribe.

Counsel for Appellant
R. Dennis Ickes
Nielsen & Senior
1100 Eagle Gate Plaza, Ste. 1100, Salt Lake City UT 84111
(801) 532-1900

Counsel for Appellees
Charles D. McGuigan, Ass't Attorney General
Attorney General's Office
500 E. Capitol, Pierre SD 57501
(605) 773-3215

Before BOWMAN, HEANEY, and BEAM, Circuit Judges.