South Dakota v. Bourland

PETITIONER: South Dakota
RESPONDENT: Bourland, Individually And As Chairman Of The Cheyenne River Sioux Tribe, et al.
LOCATION: City Council of Hialeah

DOCKET NO.: 91-2051
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 508 US 679 (1993)
ARGUED: Mar 02, 1993
DECIDED: Jun 14, 1993

ADVOCATES:
Brian Stuart Koukoutchos - on behalf of the Respondents
Brian S. Koukoutchos - for respondents
James A. Feldman - on behalf of the United States, as amicus curiae, supporting the Respondent
Mark Barnett - for petitioner
Mark W. Barnett - on behalf of the Petitioner

Facts of the case

Question

Media for South Dakota v. Bourland

Audio Transcription for Oral Argument - March 02, 1993 in South Dakota v. Bourland

William H. Rehnquist:

We'll hear argument next in No. 91-2051, South Dakota v. Gregg Bourland.

Spectators are admonished to remain quiet until you get outside the courtroom.

The court remains in session.

General Barnett.

Mark W. Barnett:

Mr. Chief Justice, and may it please the Court:

In 1944, Congress recognized that there was a need to bring the massive Missouri River under control.

They passed the Flood Control Act at that time which was to authorize the construction of reservoirs and dams and to convert that river to public beneficial uses.

By 1954, that scheme had resulted in the entry into an agreement between the Cheyenne River Sioux Tribe and the Government that for a sum certain, all lands, interests, claims, demands, et cetera, in the affected property would be conveyed in fee simple or in fee title to the United States subject, however, to certain conditions, quote, hereinafter set forth, end quote.

The treaty underlying this dispute is the Treaty of 1868 which, for all intents and purposes, is indistinguishable from the treaty that this Court considered in Montana v. U.S. some 12 years ago.

The issue before the Court today is whether, in light of that alienation of land under the act, whether or not the Cheyenne River Sioux Tribe somehow retained regulatory authority over nonmembers on what was now and is now public land.

To answer that question--

William H. Rehnquist:

But what used to... did it used to be part of the Cheyenne River Indian Reservation?

Mark W. Barnett:

--Yes, it did, Your Honor, and the... I should say the eastern boundary of the reservation jutted out into the mid-channel, quote, unquote, of the river, and that reservation boundary is still there at this time out into the water somewhere.

The reservation is approximately 2 million--

John Paul Stevens:

Does that mean... just so I... does that mean that the area in dispute is now within the reservation?

Mark W. Barnett:

--There is... the issue... we have not brought the issue before the Court today of diminishment, and--

John Paul Stevens:

You haven't brought it here, but it was decided below that there was no diminishment.

Mark W. Barnett:

--That's--

John Paul Stevens:

There's no appeal.

Ergo, we have to accept the case as coming to us with this territory being within the reservation.

Mark W. Barnett:

--I think that's a fair statement, Your Honor.

I should state, as a way of factual background, that there are some 2,800,000 acres in this reservation.

Approximately 1,400,000, or half of the reservation, has been alienated out to non-Indian fee ownership.

And it's particularly important in this analysis that the Court keep in mind that the strip of take land that was along that western side of the Missouri River and on the eastern edge of the reservation included not only 100,000... 104,000 acres of tribal land, but also 18,000 acres of non-Indian fee land.

William H. Rehnquist:

Is that a checkerboard situation on the reservation where the holdings of fee land and reservation are kind of like a checkerboard?

Mark W. Barnett:

It is interspersed.

I think it would be accurate to say that the majority of the fee land on the reservation is towards the northwest corner, or away from the river.

However, again, as I mentioned, the other portion of fee land that had taken place in this reservation prior to the taking was along that river, some 18,000 acres.

And so, there's really two areas where fee land had come into being, and then between those, slightly removed from the river and in many places directly along the river, was still fee land.

So, yes, there was interspersing.