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

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.

Mark W. Barnett:

Since the gates of this dam have closed and the water has arisen, the tribe has not sustained–

Byron R. White:

So, does this case involve the… any of the fee land except the area taken by the United States?

Mark W. Barnett:

–It does not anymore.

It did originally.

The courts below have found and the tribe has basically conceded that as to the fee lands not in the take area, that they were no longer claiming jurisdiction.

However, they had originally in the declaration in ’88 that caused us to go to court.

The tribe has not sustained, quote, an independent and vigorous scheme of wildlife management on this reservation, and I quote from the Government’s brief at page 6.

The district court found… and I quote… the tribe, meanwhile, does very little game management.

End quote.

The tribe admitted through its Game, Fish, and Park Director at trial… this is in your joint appendix at 379… that the tribe does not do any management on the Missouri River and does not even have a plan for fishery management.

And that is at 381.

William H. Rehnquist:

How does that bear on the legal issues involved in this case, General Barnett?

Mark W. Barnett:

The tribe has… for a period of some 30 years, Your Honor, the State of South Dakota has vigorously managed all of this public property and assumed jurisdiction over all of this area, both the take land, whether it was previously Indian land or whether it was previously fee land by non-Indians, as well as all the waters.

We have asserted and maintained and exercised jurisdiction and management of that asset, and the tribe has not.

William H. Rehnquist:

But does that bear because of some statute or some case from this Court?

I mean, how do you tie that fact into the established law regulating this subject?

Mark W. Barnett:

I think that it is the most compelling evidence of how all of the parties to this entire transaction have construed the ’54 act.

The ’54 act made it quite clear that all interests, all lands were to be conveyed to the public, to the government, and that is in section I, except for such conditions are set forth in the act.

Section II again suggests all interests, not just the land, but the interests, were being conveyed to the public.

And last, but not least, section X, which was drafted by the tribe itself and adopted by Congress in the form submitted by the tribe, the tribe was… treaty rights were to be limited in the future to access.

Whereas before, but for the navigational servitude, they might have claimed that they had control under section X, they were reduced to a position of access… and I quote… subject, however, to regulations governing the use by other citizens of the United States.

And so, our position is, Your Honor, that for 30 years, we have read that act to say just what it… to mean just what it says, that the tribe had lost the power to exclude.

And I might point out in that contention that the tribe lost the power to exclude that section 4 of the ’44 act, which authorized the entire process, specifically said that no use of these areas shall be allowed which is inconsistent with the game and fish laws of the State in which the area is situated.

We read that to mean just what it sounds like it says, that the State game laws will be in control in these areas.

David H. Souter:

General Barnett, am I correct that you have taken or you have represented to us that the only regulation to which the State has consented in the past, basically by agreement I guess, has been regulation of Indians on the reservation lands, as distinguished from nontribal members?

Mark W. Barnett:

We have conceded and we do concede today that the tribe is in charge of game problems, game management, and so forth even as to nonmembers on tribal trust lands, the lands that they still have the power to exclude from.

But we have contended that as to those areas, that they cannot exclude.

They have lost the power to regulate.

I might add that… and I would suggest that it’s in deference to the citizens who are tribal members… we also are not contending today that… or rather, we are conceding that the tribe can regulate that activity of its own members out on this public property.

We’re not even arguing that point, but only that we are regulating the activity of nonmembers on this public property.

Mark W. Barnett:

We… I should point out that, just so you… if I may cover briefly what the State has done in the way of exercising that jurisdiction.

We have what the district court found was a pervasive law enforcement, end quote, presence on all of these public properties.

We have initiated a comprehensive and substantial wildlife and fishery management program.

We’ve stocked 72 million fish out in this asset, including stocking fish along the area that once was tribal land.

We’ve monitored, managed.

We have an endangered species plan.

We have what the Court basically recognized.

We have developed, and I might add we’ve developed in partnership with the Federal Government.

We have developed what is now, in the words of the district court, a nationally recognized fishery with regard to certain game fishes.

You might ask… and I think it’s a fair question… if the State has exercised jurisdiction for 30 years, and the tribe has not, which is clearly what the district court found, then how did we get to this dispute?

In 1988, the State attempted to enter into an agreement with the tribe with regard to the taking of deer, not just on the public property and not just on the reservation, but in effect, a joint opportunity for hunters to buy one license, split the revenue between the entities, and allow the hunter to go where the game is without respect to jurisdictional boundaries.

That… those negotiations broke down when the tribe insisted that before nonmembers could hunt on that public property, they would have to have tribal permission.

We could not accede to that demand, and so at that time, negotiations broke off.

And the tribe then publicly announced… and I’ll quote the tribe’s brief.

Quote, the tribe announced its intentions to enforce tribal hunting and fishing regulations on the taken area.

That’s at page 14.

And the announcement that they used was, quote, all hunters must now hold a tribal hunting license to hunt on any and all lands within the exterior boundaries of the reservation.

The State license will no longer be honored.

End quote.

And yet, the tribe comes before you today and suggests that they’ve had jurisdiction and exercised jurisdiction for all those years.

And I would submit to this Court that if they have, why did they need to go with a public announcement suggesting that now you must have a tribal license to hunt on these public lands?

I would submit to the Court as well–

William H. Rehnquist:

General Barnett, they could have had… thought they had jurisdiction before, but simply decided that, as a matter of comity, they would honor the State hunting license.

Mark W. Barnett:

–I think that the best evidence of what the tribe thought was the fact that for some 30 years they had not made any actual… they had had a regulation in I believe the ’30’s under the Indian Reorganization Act that suggested or that they claimed gave them jurisdiction over these nonmember activities.

However, no enforcement efforts at any time… and I refer the Court to the tribe’s brief, footnote 17, where they say in the single tribal court action on record against a nonmember, one action in all those years.

And that’s a reference to a 1990 case after this litigation began.

Antonin Scalia:

General Barnett, where does the State acquire the authority to issue hunting licenses for this land?

Mark W. Barnett:

I would submit first under Rosebud v. Kneip, the principle that this Court suggested, another case coming out of South Dakota, that when the State has exercised jurisdiction for so many years, without objection through those years from the Government or the tribe, that this can create jurisdictional expectations and that it also is good evidence of how the parties construe the law.

Antonin Scalia:

Could the Corps of Engineer… Corps of Engineers say anybody can hunt and fish without a State license or we’ll issue a Corps of Engineers licence instead?

Mark W. Barnett:

I would submit that the… there isn’t any question that the Federal Government has the right to regulate this property, and probably the answer to that question is yes.

Mark W. Barnett:

But it’s also… I think it’s also pertinent that the Corps has worked with us through all these years.

Antonin Scalia:

Well, I thought maybe your authority came from the Corps’ regulations which say that all other Federal, State, and local laws and regulations remain in full force and effect, where applicable, to these water resource development projects.

Mark W. Barnett:

I think that’s an additional source, and I think a source even earlier than that is section 4 of the ’44 act, which made it clear this was to be opened up to the public for boating, recreation, fishing, and so forth.

Antonin Scalia:

Oh, I have no doubt about that, but I just wonder whether… you know, why it is that the State gets the right to exclude anybody–

Mark W. Barnett:

I think there’s also–

Antonin Scalia:

–Federal land.

Mark W. Barnett:

–a principle that runs through the cases of this Court that the powers not exercised by the Federal Government, and particularly with regard to navigable waterways, are reserved to the State.

Byron R. White:

Well, I thought you thought that the analysis in Montana would… in the Montana case would control this case.

Mark W. Barnett:

I would submit that that is the case, Your Honor.

Byron R. White:

And the court below thought otherwise.

Mark W. Barnett:

The court below thought otherwise.

I would refer you to the district court comment in its decision where it said this case is indistinguishable from Montana v. U.S.–

Byron R. White:

Well, where did Montana say the State got the authority to regulate on fee land?

Mark W. Barnett:

–I think it was a recognition of the concept that jurisdiction over these waterways, to the extent not used by the Federal Government, should remain in the States.

And in fact, during the discussion of the ownership of the bed, the Court noted the equal footing doctrine, which made it very clear in that case that Montana owned the bed and that there were certain inherent sovereignty sorts of rights that reserved to the State for the management of that water.

Byron R. White:

Is it clear and conceded by everyone that this property that the United States took is open to the public?

Mark W. Barnett:

I don’t think there’s any dispute about that, Your Honor, although perhaps the other side would–

Byron R. White:

So, even though it’s in the… inside the reservation, do… does the public have a right to come and go to that property despite what the tribe wants to do?

Could the tribe exclude the public from this–

Mark W. Barnett:

–We–

Byron R. White:

–entirely from this property?

Mark W. Barnett:

–We contend that they can neither exclude from this property nor regulate the nonmembers that come on this property, and that is what the Montana–

Byron R. White:

Well, let’s just stick with exclusion.

Can they–

Mark W. Barnett:

–No, they cannot.

Byron R. White:

–Have they claimed that they can?

Mark W. Barnett:

There was testimony by the tribal chairman that, yes, if they wanted to, they could exclude nonmembers from this public property.

However, they have not made the effort… as the district court found, they have not at any time in the last 30 years either attempted to monitor nonmember access to this property, nor have they made any effort to exclude.

William H. Rehnquist:

What’s the shape of the property, General Barnett?

Is it a kind of a long, narrow tract running along the river?

Mark W. Barnett:

It is… the river is, according to the U.S. Geological Survey, 2.16 miles wide on average, and something over 200 miles long.

And so, if you were to analogize to… because it is a navigable waterway… to analogize it to highways, it would be a 2-mile wide highway, something like 200 miles long.

William H. Rehnquist:

You say… you said that the river is 2.16 miles wide.

Is that what you meant to say?

Mark W. Barnett:

Yes.

The river is on average 2 miles wide.

The original jurisdictional line of the reservation juts out into the mid-channel somewhere.

So–

William H. Rehnquist:

So, we’re talking about duck hunting or… I mean, are we talking about hunting from dry land or from in the river?

Mark W. Barnett:

–All of the above.

There’s dry land hunting for deer and game birds.

The land–

William H. Rehnquist:

How much of a land is there, say, from the regular bank-full level of the river to the edge of the condemned property?

Mark W. Barnett:

–I would call it a narrow strip.

It basically is that amount of land that the Corps wanted to reserve so that if there were several years of heavy rain, that they would not go above the take–

William H. Rehnquist:

So, are we talking about several hundred feet, several hundred yards, a–

Mark W. Barnett:

–It varies anywhere from a couple hundred feet to several hundreds of yards.

William H. Rehnquist:

–And it extends for a long distance along the river channel.

Mark W. Barnett:

All along the edge of the reservation, as I say, some of which was fee land and some of which was not.

William H. Rehnquist:

But the tribe isn’t asserting any claim to regulate hunting on what used to be fee land, is it?

Mark W. Barnett:

Yes, they are.

William H. Rehnquist:

They are?

Mark W. Barnett:

Yes, they are.

Now–

David H. Souter:

Is that claim before us?

Mark W. Barnett:

–Yes, it is.

And the… when I say fee land–

David H. Souter:

That claim was subject to the remand order, wasn’t it, below?

Mark W. Barnett:

–Yes.

David H. Souter:

Okay.

Mark W. Barnett:

When I say the fee land, I am referring specifically to the fee land which was fee land before the take, in other words, the non-Indian property that was along that edge of the river that was taken along with the Indians’ land along the edge.

The fee land off in other parts of the reservation, the 50 percent, they are not at this time any longer–

Byron R. White:

Well–

Mark W. Barnett:

–contending jurisdiction.

Byron R. White:

–Well, then before the United States took this fee land for this project, the… did the Indians claim authority to regulate the owners of that particular fee land that the Government took?

Mark W. Barnett:

They had passed regulations.

They had not ever enforced, and in fact, as early as 1952, as exhibit 213 reflects, the State was exerting jurisdiction.

Byron R. White:

You mean they treated this… the… before… in the time before the project was taken, did the Indian tribe treat the fee land that was taken differently from the fee land in other parts of the reservation?

Mark W. Barnett:

Not that I’m aware of.

And I think that the fairest way to categorize that is that–

Byron R. White:

If the project had never been taken, if the United States had never taken the land, would the Indians today claim that they had the authority to regulate hunting and fishing on the fee land that the Government did take?

Mark W. Barnett:

–They’re not making that claim as to the fee land.

As to the take area, which included some fee land, yes, they were contending and do contend today that they have jurisdiction over that.

And I would submit, Your Honor, that had there never been a 1954 act to come along and to expressly remove all interests of the tribe as to this property, even then, under the navigational servitude that this Court has talked about in Montana and in other cases, would suggest that they have lost the power to exclude these nonmembers.

And these nonmembers, once the power to exclude them is lost, the Court in Montana and in Brendale has made clear that the tribe also loses with it the right to regulate those–

David H. Souter:

Wasn’t Montana dealing only with fee land?

In other words, there’s some broad language in Montana, but the issue in Montana only concerned fee land, didn’t it?

Mark W. Barnett:

–It… that’s correct.

It is fee land that was in that dispute.

And that turns to the tribe and the Government’s argument I suspect that Montana and Brendale, Montana in particular, can be distinguished from this case on the ground that the decision on… in Montana turned upon the intent of the allotment acts.

And I would submit to you that that is an excessively broad reading of footnote 9.

I think that their case hinges upon their understanding of footnote 9, which talked about the Allotment Act intent of disestablishing these reservations, and that that intent was opposite to the concept of exclusivity and regulation.

I would submit, however… and I would… in fact, I would quote the final sentence in footnote 9 in the Montana case.

But what is relevant in this case is the effect of the land alienation occasioned by that policy.

In other words, what the Court was saying is that whatever the intent of the Allotment Act, or in this case under the Cheyenne River Act to open it up to the public, whatever the intent, the effect is what’s important.

Even though the Indian Reorganization Act repudiated the intent of the Allotment Act, nonetheless, the effect was still the same.

This land had gone out of the Indian domain.

They had lost the power to exclude.

And so, our contention is that just the same under the ’54 act, not to mention navigational servitudes, under the ’54 act, they lost that power to exclude.

And so it is, as the district court said, indistinguishable.

Mark W. Barnett:

I don’t think it matters who owns, whether in Montana the State owned the bed, or in this case, although it’s not entirely clear perhaps, probably the Federal Government owns the bed in this case.

In either event, what’s important is that the tribe does not, and as a–

David H. Souter:

What… I didn’t mean to interrupt you.

Mark W. Barnett:

–And as a consequence of not owning that property and not being able to exclude, they also can’t control it.

David H. Souter:

You mentioned a moment ago the text of the ’54 act.

What’s the… in addition to the text, what’s the best indication that it was within the contemplation of Congress that it was sort of buying out the regulatory authority?

Mark W. Barnett:

The regulatory authority of the tribe stems from its treaty rights under the same identical… basically identical treaty of 1868.

And in the discussion on those treaty rights, I would refer you to the Congressional Record, 15609, where Representative Case… and this is in our briefs… said… and I quote… hunting and fishing rights were also a part of the rights recognized by treaty, and to the extent these may be impaired or destroyed, the tribe is entitled to compensation apart from settlement with the allottees holding individual tracts of land.

David H. Souter:

Do we know that they got it?

Mark W. Barnett:

Pardon?

David H. Souter:

Do we know that they got that compensation?

Mark W. Barnett:

Yes, we do.

There was a payment of something over a million dollars for the loss of all wildlife.

And there was testimony by a Mr. LeBeau on behalf of the tribe, and his comment was… and I quote… the value of this loss of wildlife resources was placed at 74,300 annually.

Because of the fact that we are losing these resources forever, we have capitalized that sum at 4 percent.

And then he was asked by one of the Members of Congress do you really think you’re going to lose all the wildlife forever, and he affirmed yes.

So–

David H. Souter:

Yes, but isn’t it one thing to lose wildlife, which you can’t take for its economic value, and quite a different thing to lose the authority to exclude others who may, subject to your regulatory authority, come in and hunt and fish for the wildlife?

And to lose the wildlife, I mean, you know, a deer cannot live on submerged land.

We understand that, but that’s a different thing from losing the regulatory authority over that land or even over the water that takes its place.

Mark W. Barnett:

–If I understand your question, I would respond that clearly Montana suggested that when that power to exclude is gone, so is the power to regulate.

And I don’t know if that answers your question.

David H. Souter:

But does Montana make it clear that that power to exclude is lost with respect to anything other than fee land?

Mark W. Barnett:

It was with regard to fee land.

That is correct.

What we are submitting is that whether it’s a fee that’s held by the Government or a fee that’s held by nonmembers, in either case, the result is the same.

It has gone out of the power to exclude.

They stem from the treaty.

And in this case, there is ample congressional history that they knew they were dealing with treaty rights, treaty hunting and fishing rights, as I’ve said, with Representative Case.

And also I think it’s noteworthy that the tribe insisted in the negotiations… they were paid by Congress to negotiate, including attorney fees, as appears in section XIII.

Mark W. Barnett:

And in those negotiations, the tribe demanded that the 1868 treaty requirement that any acts affecting their reservation be approved by three-quarters of the adult population… they insisted that the Congress adhere to that, and the Congress did adhere to that.

And this whole sale, if you will, went out to the members in 1955 and was approved by–

David H. Souter:

What were the… did the terms of the ballot refer in any way to the extinction of regulatory rights?

Mark W. Barnett:

–They did not expressly talk about extinction of regulatory power even though no such regulatory power was being asserted at that time.

What the ballot did say, if I can find it in my notes, the ballot said the Indians may graze livestock on the part of the land not flooded and may hunt and fish in the taken area without charge.

I think that that suggests that they read it just the way we read section X of the 1954 act.

They have access to hunt and fish.

And in fact, what they are seeking today is not access to the fish, but access to the fishers.

With that, Your Honor, I would like to reserve the balance of my time.

William H. Rehnquist:

Very well, General Barnett.

Mr. Koukoutchos, is that the correct pronunciation of your name?

Brian Stuart Koukoutchos:

Yes, it is, Mr. Chief Justice.

William H. Rehnquist:

You may proceed.

Brian Stuart Koukoutchos:

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

I would like to initially clear up a couple of issues that came up during oral argument by General Barnett.

First of all, although the… an interest in the issue is understandable, the State’s jurisdiction over the taken lands in question here, be they fee lands… formerly fee lands or formerly tribal trust lands, is not at issue.

The district court denied the State of South Dakota a ruling on that issue because they failed to plead it in their complaint or to put on a case, and the Eighth Circuit affirmed that that issue is not before the Court.

I’m not suggesting the Court should not think about the issue, but it’s clear that the Court need not decide that issue today because it’s not presented here.

William H. Rehnquist:

Again, what issue is it you say that is not before us?

Brian Stuart Koukoutchos:

The issue of whether or not the State has concurrent jurisdiction over the taken areas in question.

William H. Rehnquist:

If the State had concurrent jurisdiction, would that mean that the tribe would have to recognize a State hunting license?

Brian Stuart Koukoutchos:

I’m not sure that it would, Mr. Chief Justice.

I think that the issue of concurrent jurisdiction raises a number of issues.

It should be clear in this case that the district court found that the State made no showing that its interests are hurt by exclusive tribal jurisdiction.

The district court also found that the shared jurisdiction of the taken strip of land would not impair the State’s wildlife management.

In the past–

William H. Rehnquist:

Shared jurisdiction between the State and the tribe?

Brian Stuart Koukoutchos:

–In the State and the tribe.

That is correct.

Contrary–

William H. Rehnquist:

It would not impair the State’s–

Brian Stuart Koukoutchos:

–Wildlife management program.

William H. Rehnquist:

–So, that was, in the view of the district court, something that would argue in favor of shared jurisdiction?

Brian Stuart Koukoutchos:

What was at issue was… when the district court made those findings was, in addition to the… it was reaffirming its decision not to reach the issue of State jurisdiction.

I think what those things prove is that concurrent jurisdiction will work.

The court was… although it was not addressing exclusive jurisdiction by the State or even whether or not the State had concurrent jurisdiction, it recognized that one cannot really think about the issue of tribal jurisdiction over this land without at least thinking about whether or not the State would have some jurisdiction.

So, it made those findings that tribal jurisdiction over this territory would not interfere with the State’s wildlife program and that shared jurisdiction was likewise workable.

It further made a finding that despite even the litigation in this case, the actual people who do this sort of management, the tribal game wardens and the State’s game wardens, enjoy an amicable relationship.

William H. Rehnquist:

Was any part of those findings of the district court reversed by the Eighth Circuit?

Brian Stuart Koukoutchos:

Absolutely none.

Sandra Day O’Connor:

Counsel, does the tribe take the position that it has the right to exclude all nontribal members from access to the lake and the adjacent property?

Brian Stuart Koukoutchos:

No, Justice O’Connor, the tribe does not.

We believe that the 1954 taking act, which is the relevant legislation, in section X, requires that the… or rather gives the Federal Government the power to regulate corresponding use.

That is, it reserves hunting and fishing rights to the tribe, and the Army Corps of Engineers, as the operator of the reservoir area, has the right to issue regulations governing corresponding use.

The tribe has never tried since it became a taken area by the Federal Government to exclude others from it.

I should say, however–

Sandra Day O’Connor:

Well, that’s a separate question, whether they’ve actually tried.

I’m asking whether–

Brian Stuart Koukoutchos:

–No.

Sandra Day O’Connor:

–they want to assert the right to exclude.

Brian Stuart Koukoutchos:

No.

The tribe does not assert the right to exclude, but I should make clear that in this case that does not mean that the public has necessarily a right of access to it.

See, the point of the taking was it is no longer tribal trust land, or rather Federal land held in trust for the tribe.

It’s now Federal land held for the reservoir project.

What that means is that the Army Corps of Engineers has control over it, and although section 4–

Sandra Day O’Connor:

Well, does the tribe assert that it can exclude people from coming through the reservation to reach the area in question?

Brian Stuart Koukoutchos:

–Given that this is Federal lands and that one normally understands that there’s a right of access to Federal lands, the tribe does not believe it has a right to exclude people to deny them essentially passage across the reservation.

That would be a difficult matter to police in any event since there is a Federal highway, among other things, that goes across tribal trust land through the reservation to the taken area.

So, the tribe is not making an effort to exclude people from that area.

Antonin Scalia:

Isn’t more than just that general proposition which makes the point?

Antonin Scalia:

Don’t the statutes provide that the water areas of all Corps of Engineer products shall be open to public use generally for boating, swimming, bathing, fishing, and other recreational purposes and ready access to and exit from such areas along the shores of such product shall be maintained for general public use?

I mean, there’s a specific law that–

Brian Stuart Koukoutchos:

Yes, Justice Scalia.

Section 4 of the Flood Control Act does require that.

However, that does not… and therefore, the tribe believes it does not have the power to exclude.

What I wish to point out, though, is that does not necessarily mean that–

Antonin Scalia:

–I assume because it says it shall be, you know, for boating, swimming, bathing, fishing, and other recreational purposes.

Brian Stuart Koukoutchos:

–Should the Corps of Engineers decide to make that portion of Lake Oahe open for public use, which is an issue in the discretion of the Corps of Engineers, then the tribe does not believe it has the power to exclude people from it.

We assert here only the limited power to license hunting and fishing on that area as within the rest of the reservation, tribal trust land.

Antonin Scalia:

How can you have the power to license… let’s talk about fishing first… when the statute specifically says that they shall be open to public use for fishing?

Brian Stuart Koukoutchos:

Well, that doesn’t… but I don’t think that answers the question as to whether or not they shall be free of all fees to license… I mean, to… you know, don’t have to pay a license fee to hunt and fish.

Antonin Scalia:

I don’t understand.

The basis for your license fee is you can’t fish unless you pay me the license fee.

You mean, you have a right to charge a license fee even though you don’t have a right to prevent them from fishing?

Brian Stuart Koukoutchos:

We do not believe we have the right necessarily to exclude people from the area.

However, the tribe has… the tribe is of the opinion that there was no divestiture of the power to regulate hunting and fishing in the area.

I don’t think that necessarily–

Antonin Scalia:

Well, let’s not call it regulate.

You assert the right to prevent people from fishing in the area, don’t you?

To prevent people from fishing, you assert the–

Brian Stuart Koukoutchos:

–To require that they have a tribal fishing license.

Antonin Scalia:

–And prevent them from fishing if they do not have that license.

Brian Stuart Koukoutchos:

If they do not have the license.

Correct.

Antonin Scalia:

I don’t understand why that does not fly directly in the face of that statute.

Brian Stuart Koukoutchos:

Well, to begin with, section 4 of the Flood Control Act of 1944 is most directly relevant to the 18,000 acres of land within this swatch of territory which was taken from fee simple owners.

We do not know how that land came to be held in fee.

There is nothing in the record to indicate it was an allotment act or what.

We simply know that it was held in fee by nonmembers of the tribe.

That land was taken by the Government through eminent domain pursuant to the Flood Control Act.

Brian Stuart Koukoutchos:

However–

William H. Rehnquist:

Taken in fee?

Brian Stuart Koukoutchos:

–Yes.

Yes, the United States took it in fee.

However, section 4 of the Flood Control Act is not the only section of the act that is relevant.

Section 9 of that act says that with reference to the irrigation and taking of Indian lands, that those will be in accord with Indian law.

Section 4 of the Flood Control Act of ’44 merely set up the framework during which the entire Missouri River project would take place.

Section 9, which this Court interpreted in the ETSI Pipeline case a few years ago, was understood to be that which harmonizes the Flood Control Act with the remaining corpus of Federal law.

Part of that Federal law is Indian law, which says that you cannot take Indian land pursuant… except pursuant to certain understandings.

That is why the 1950 act was passed to try and enable the tribe and the Federal Government to come to a negotiation.

When negotiations failed to reach a satisfactory conclusion, the 1954 Cheyenne River Act was passed.

That is the act pursuant to which the 104,000 acres of former tribal trust lands were taken.

William H. Rehnquist:

But doesn’t the tribe claim the right to exclude without a license from the previously fee lands that were taken, the private lands?

Brian Stuart Koukoutchos:

Yes, it does, Justice Rehnquist.

William H. Rehnquist:

What is the basis for that claim since the Government has taken a fee there?

Brian Stuart Koukoutchos:

Well, I think, Mr. Chief Justice, the basis for that is precisely because the Government has taken it.

This is now land owned by the Federal Government for the purposes of a Federal water project.

William H. Rehnquist:

So, why does that give the tribe a right to demand a fishing license on it?

Brian Stuart Koukoutchos:

Well, the Federal Government ceded to the tribe substantial rights over this entire areas, rights–

William H. Rehnquist:

Including the lands taken in fee from the private owners?

Brian Stuart Koukoutchos:

–Yes, Mr. Chief Justice.

The tribe has the power to… had the power before the gates of the dam closed to condemn or salvage any of the improvements.

It had absolute right to take all the timber regardless of what property it was on, and it to this day now reserves all… was reserved to this tribe the power to graze all of this land or to permit other people to graze it without regard to whether or not it was the original 18,000 acres or the 104,000 acres.

Since it is all Federal land, the fee land that was there has now been submerged in the larger Federal corpus, and the tribe exercises authority over it with respect to mineral rights, grazing, and timber without regard to whether or not it was originally fee land or tribal trust land.

Byron R. White:

You mean exclusive rights for grazing?

Brian Stuart Koukoutchos:

Yes, that was reserved in section, I believe, X of the Flood Control… of the Cheyenne River Act of 1954.

Byron R. White:

But I suppose the United States could always license somebody else to graze under its authority.

Brian Stuart Koukoutchos:

I’m not sure that that’s clear, Justice White, because the statute reserves the right to license and permit to the tribe.

That does not mean that the Federal Government does not have a presence here in this case because, for example, the tribal grazing code is–

Byron R. White:

Well, I thought you said a while ago that if the Corps of Engineers wanted to permit people to fish without a tribal license, they could.

Brian Stuart Koukoutchos:

–Yes.

That is because the Corps of Engineers controls the public access to the water projects.

The… with reference to the land in this case, that was reserved expressly… the grazing rights on the land were reserved expressly to the tribe, and there was a Comptroller General opinion I believe in 1977 which said that the tribe has exclusive authority to permit grazing on this land without regard to whether or not it originally had been taken from fee owner or whether or not taken in trust from the tribe.

David H. Souter:

Can I take you back to Justice Scalia’s question, and as I understand his question, it doesn’t depend, it doesn’t implicate any of these reservations of rights that you have been describing here.

It implicates simply the general provisions for the governance of lands taken in fee by the Corps or by the United States for Corps of Engineers projects, and it guarantees public access.

And his question is… for fishing.

As I understand it, his question is if the public has access for fishing, where do you get the authority to charge a fee in the absence of which you can exclude them?

Brian Stuart Koukoutchos:

Well, in every instance, somebody has to regulate the hunting and fishing in these circumstances.

The State of South Dakota certainly has no authority to exclude anyone from the taken area or from any other Federal project.

David H. Souter:

Well, let me ask you.

Let me ask you a variant on the question, which doesn’t perhaps go to its point, but may be suggestive.

Is it… do you know whether, in fact, in other project areas which would be subject to this same statute, but not involving tribal lands, whether the States involved have or at least exercise a regulatory authority over it so that they would, in effect, find someone for fishing on a Corps of Engineers lake without a State hunting license?

Brian Stuart Koukoutchos:

Yes, that is the understanding.

David H. Souter:

And so, your claim is that the tribe in this case is doing no more than the States would normally do under their hunting and fishing regulatory authority.

Brian Stuart Koukoutchos:

Yes.

We do not think that the taking of the Federal… by the Federal Government in this case displaces the preexisting regulatory authority.

Granted, the Corps of Engineers reserves the right to regulate corresponding use, but the practice of the Corps has been to allow the regulation that existed theretofore.

If it’s on Federal land and… that used to be State land, the State exercises it in cooperation with–

David H. Souter:

Okay, but if you just looked–

Brian Stuart Koukoutchos:

–the fish and game wardens.

David H. Souter:

–Excuse me.

But if you just looked at the text of the statute and not… and made no reference to this State practice, it would be a legitimate question then as to whether there would be any basis on Corps project lands and waters for any authority, at least other than the United States, to… well, no, strike the proviso.

There would be a serious question as to whether any authority could preclude anyone from fishing subject to the payment of a fee.

Brian Stuart Koukoutchos:

I think there are two answers to that.

The first is found within section 4 of the Flood Control Act itself, which in its last line says that nothing in this will… and it’s essentially an antipreemption clause.

Nothing in this will preempt otherwise applicable State laws for the management or conservation of fish and game.

David H. Souter:

Okay.

Brian Stuart Koukoutchos:

It is the understanding of the Federal… and there’s also the provision in–

David H. Souter:

But that won’t help you.

Brian Stuart Koukoutchos:

–Well, that applies with respect to the example that anybody would have authority.

Brian Stuart Koukoutchos:

Our position is that given that the tribe enjoyed authority to regulate this land beforehand, that the Federal Government took it for its own purposes with the reservation of substantial authority to the tribe, that there is nothing in the Cheyenne River Act–

David H. Souter:

But you have express reservations of grazing rights and timber rights and so on, but you have no express reservation of this regulatory authority.

Brian Stuart Koukoutchos:

–There is an express reservation of a right to hunt and fish, which is not exclusive.

Other people are… you know, can enjoy that as well.

However, it is a right to hunt and fish which is not the same as merely the public’s right of access.

Otherwise, there would have been no need to preserve it.

Antonin Scalia:

Don’t you think that’s unusual to say, you know, this fee that we’ve taken is so total… we’ve taken everything away from you… that we feel we have to give you back the right to hunt and fish, but we don’t have to mention anything about your right to continue to govern the land to the extent of excluding other people?

I mean, it would seem to me that if it was necessary to mention that the Indians continue to have the right to hunt and fish or otherwise they wouldn’t have it, surely it would have been necessary to mention and they have the right to prevent others from hunting and fishing.

Brian Stuart Koukoutchos:

The issue of jurisdiction simply didn’t come up.

Both the district court and the Eighth Circuit found that there was nothing in either the statute or in the legislative history which addressed the issue of jurisdiction in this case.

Congress was dealing exclusively with the property rights.

It is the basic understanding under Federal law, when they take pursuant to title 40, section 255, that the preexisting jurisdiction over that land is not disturbed.

In this case, there is one reference in the legislative history and one reference in the statute which seems to indicate that the tribe preserves regulatory power, and that is that in section X it reserves the right to hunt and fish not just to members of the tribe and to the tribe, but to the tribal council and members of said tribe.

Everywhere else in the Cheyenne River Act where the Congress used the phrase tribal council, it refers to the tribal council as a governing body.

Therefore, something must be meant in section X beyond a mere right to hunt and fish by reserving this power to the tribal council.

If we are to read it, as this Court advised last week in McGonsett v. Samuels, so that every word and clause of the statute has meaning, then tribal council must mean something more than the mere right to hunt and fish because every member of the tribal council enjoyed that already by virtue of the general reference to a reservation of powers to hunt and fish.

In light of that, the one place in the legislative history that addresses the right to jurisdiction actually occurred in a colloquy between the tribe’s representative and Representative Berry, the sponsor of the legislation, the day after the conversation that General Barnett referred to.

And in that instance, the tribe said that it read section X, which was now before it and was adopted in that forum, to reserve to the tribe the power to hunt and fish and to regulate the taking of hunting and fish.

He said specifically no white person can go on this land without a license to hunt and fish.

Nothing was said from the committee or anyplace else to disturb that notion.

Now, that isn’t a whole lot on which to go on, but certainly the only thing in the statute that addresses the issue of jurisdiction is something that indicates that the tribal council was to retain some power, and it can’t be merely the right to go hunt and fish en masse.

It must mean some form of regulatory power.

Moreover–

David H. Souter:

Maybe it was regulatory power over tribal members.

Brian Stuart Koukoutchos:

–I beg your pardon?

David H. Souter:

May be it was just regulatory power over tribal members.

Brian Stuart Koukoutchos:

That the tribe would… council would have in any event by virtue of the Indian Reorganization Act and the tribal constitution, and that would have been, again, an unnecessary reservation of right.

The tribe council always has powers over its members because it is a sovereign, at least in that limited sense.

If I could address just for a moment the basic aspect of the Cheyenne River Act, what distinguishes it and what distinguishes this case from the Montana case, which is the most relevant on point, and that is this Court, when it addressed the similarly narrow regulatory issue of tribal power over nonmember fee land in Montana, said that one must look at tribal power over land in light of the subsequent alienation of that land.

In this case, the land was not alienated to private landowners, to homesteaders in fee simple.

Brian Stuart Koukoutchos:

It was alienated to the Federal Government with a reservation of substantial rights to the tribe, and that is the second issue.

That is the scope of the alienation.

Nothing was retained in Montana.

It was fee simple.

Here the tribe retained all the rights that we have discussed including, importantly, the right to graze livestock on this area or to license the grazing of livestock, which is important because that is where this litigation arose.

The tribe was concerned about hunters coming onto reservation land because this area is Indian landlocked… it is between Indian land exclusively on one side and the lake on the other… and disturbing the herds that were there, leaving open the fences, disturbing the buffalo herd and so on.

William H. Rehnquist:

Why did the tribe do nothing for 30 years if it had these concerns?

Brian Stuart Koukoutchos:

In fact, Mr. Chief Justice, the tribe did not do nothing.

Contrary to what the State of South Dakota has told you, the district court found… and these findings are at joint appendix, page 65… that the tribe has always asserted jurisdiction over this taken area both before it was taken and since 1954.

It has never acquiesced in State jurisdiction, and that the jurisdictional matrix which has, in fact, ensued is that the tribe enforces its tribal fishing and hunting regulations against all, including nonmembers, on the taken land; whereas the State of South Dakota has limited its enforcement to nonmembers.

Those are the findings of the district court and they are not disturbed.

In… moreover, if I can get back to… strictly with respect to the grazing, it gave the grazing, which is the most important aspect of this land.

Because it is done pursuant to the tribal grazing code, the district court found that it gives the tribal land a distinct Indian flavor because it is criss-crossed by fences setting up these areas.

That code is enforced by the Bureau of Indian Affairs, and in fact, the entire area has a pervasive Federal presence.

The tribal regulation is subject to oversight by the Corps of Engineers, but not by the State.

The enforcement of tribal regulations in accord with Tribal Ordinance No. 3 have always included the availability of Federal enforcement.

All tribal fishing and hunting regulations and ordinances are initially approved by the Secretary of the Interior.

William H. Rehnquist:

Thank you, Mr. Koukoutchos.

Mr. Feldman, we’ll hear from you.

James A. Feldman:

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

I’d like to address… first, to make it clear the land that we’re talking about.

There are about 104,000 acres of land here that were taken in 1954 by the Federal Government that formerly had been trust lands.

What happened, when the land was taken, was the land continued in… title continued in the United States as it had been held before, but whereas before it was held for the beneficial use of the Indians, after 1954, the bundle of sticks was divided up a little bit differently.

After 1954, the Federal Government got title to that land and got all the uses of the land that were essential for its purposes of flood control and irrigation and for the secondary purposes for which the Corps of Engineers runs these projects.

Byron R. White:

Like what?

James A. Feldman:

Like swimming, picnicking, camping–

Byron R. White:

Fishing?

James A. Feldman:

–Fishing.

It’s true, hunting, all sorts of other purposes that once the Federal Government has the land, it sets it aside for the purposes of.

However, significant… and, in fact, all of the other economically viable uses of the land that remained were in the Indians.

James A. Feldman:

And I think it’s a mistake to look at what happened here as the Indians being left with only a bear vestige or a very minor amount of rights in these lands.

As has been pointed out, they have a right to graze cattle on all of the land.

They have the right to remove timber.

They have mineral rights not only in the land, but also–

Byron R. White:

Exclusive rights.

James A. Feldman:

–Exclusive rights to graze cattle.

That’s right.

They have exclusive rights to remove the timber up till this day.

They have the mineral rights, both in the land and under the water.

I think that those circumstances distinguish this case from Montana to a great extent.

In Montana, the Court held that the continued exercise of tribal jurisdiction depends on the… must be seen in light of the subsequent alienation of the land.

In Montana, the purpose of the–

Sandra Day O’Connor:

But, Mr. Feldman, it is clear I suppose that under the act the tribe did not retain the power to exclude people from public uses of the park area and the river–

James A. Feldman:

–That’s right.

Sandra Day O’Connor:

–and the reservoir.

James A. Feldman:

That’s right.

Sandra Day O’Connor:

They can camp and fish and use it presumably.

James A. Feldman:

That’s right.

Sandra Day O’Connor:

Can the tribe exclude people from coming onto that property?

James A. Feldman:

What I would say about exclusion is the–

Sandra Day O’Connor:

In your view.

James A. Feldman:

–They can’t keep people off altogether, but to impose a licensing fee basically for the benefits that the people are getting from using the facilities on the land is different from excluding them altogether.

And I think what the court of appeals held in this case–

Sandra Day O’Connor:

Well, it’s pretty close to it.

If you don’t have a license, you can’t use it–

James A. Feldman:

–Right, and if the licensing fee were prohibitively high or unusual in some way in which I don’t think it is in this case, or if other tribal regulations in some way essentially force nonmembers not to use the land, then I think those would be preempted by the Flood Control Act and by the Federal… the fact that the Federal Government–

Sandra Day O’Connor:

–Since the act was so specific, isn’t it rather odd that it didn’t cover this aspect?

James A. Feldman:

–The 1954 act?

Sandra Day O’Connor:

Yes.

James A. Feldman:

I don’t think it is.

James A. Feldman:

I think the 1954 act was a division of the property rights in the land, of the bundle of sticks of ownership of that land as to who got what uses after that.

I don’t think that anyone… and I think this is what the district court-and the court of appeals said.

I don’t think anyone was thinking about continuing regulatory authority over the land.

Sandra Day O’Connor:

Well, do you say that the Federal Government would have the right to require hunting and fishing licenses from people?

James A. Feldman:

I think that… actually, I think that with… it may be a little bit of a complex answer.

I think with respect to the water areas, I think the Corps would have a hard time trying to force people to obtain, say, some kind of Federal license to go fishing in light of the language that says that people shall be able to do that without charge.

I think that was directed at the Corps’ authority as to the… what it was supposed to do with this land and how it was supposed to make it open for recreational purposes.

Sandra Day O’Connor:

So, you don’t take the position that the Federal Government could require licensing.

James A. Feldman:

Well, but I do think outside… I think aside from that one proviso, I think with respect to the rest of the land area and with respect to other sorts of regulation of the land, I think the Corps does have authority to do what it deems necessary.

It is given the authority in the Flood Control Act to operate recreational–

Sandra Day O’Connor:

Well, what’s the meaning of the language giving the States whatever regulatory authority–

James A. Feldman:

–I think the State may have also have regulatory authority over the land.

At least the State may also have the authority to regulate the hunting and fishing on the land.

William H. Rehnquist:

–This is an incredibly muddled situation that your answer suggests.

James A. Feldman:

Well, I guess… let me try to clarify it for you.

I think with respect to this land, essentially the Corps doesn’t… has… never has tried to impose hunting or fishing licenses on the land, and under Corps regulations, State and local regulations, which would include both State and tribal regulations in this case, would apply to this land.

And if someone–

Antonin Scalia:

How do we know it would include tribal?

I was interested in that.

Is the regulation that says all other Federal, State, and local laws and regulations remain in full force and effect where applicable… does that include tribal laws?

James A. Feldman:

–Yes, I would take the word local to mean–

Antonin Scalia:

You would take it.

Would the Corps of Engineers take it?

James A. Feldman:

–Yes.

Antonin Scalia:

I notice that they’re not on your brief.

The Department of Interior is, but not the Corps of Engineers.

Is that significant in any respect?

James A. Feldman:

I wouldn’t attribute significance to that.

I think–

Antonin Scalia:

Can I assume that everything you argue is agreed to by the Corps?

James A. Feldman:

–Yes.

Yes, you can.

And, in fact, although I think the Corps over the years has wondered about this in part because it was unclear for some time whether this land was part of the reservation at all, and at the time that it was though that it might not be, then different rules apply, of course.

But I think once that got clarified in this case, the Federal Government has a single position here that all… that it’s the Federal Government’s position.

Antonin Scalia:

Well, that’s an easy case then.

If the regulation… I mean, what are we going through all this trouble for?

It’s clear that the Corps has the authority to issue these regulations and if the sentence in the regulations, all other Federal, State, and local laws and regulations remain in full force and effect, where applicable, to those water resource development projects, that’s an… this is an easy case.

Why hasn’t that argument been made?

As far as I know, it has not been made.

James A. Feldman:

I believe that respondents make that argument in their brief.

Antonin Scalia:

Make the argument that this regulation, local laws under this regulation–

James A. Feldman:

Yes.

I believe they recognize that.

But, in any event, I think that the important is that–

Antonin Scalia:

–I don’t get it.

James A. Feldman:

–unlike in Montana, this land is ultimately governed by the Federal Government, and the Federal Government not only does not see anything inconsistent in permitting tribal regulation of hunting and fishing on this land, especially in light of the checkerboard nature of the area being surrounded by lands on which the tribe undoubtedly has jurisdiction.

Antonin Scalia:

And you say it is the interpretation of the Corps of Engineers that local laws in section 327.0 of their rules and regulations governing public use of water resource development includes tribal laws.

James A. Feldman:

Yes.

The intent of the Corps was to have other laws that govern fish and game apply so that the Corps doesn’t have to adopt a specific Federal code to govern those kinds of matters on Corps land.

The Corps–

John Paul Stevens:

Yes, but how can that all survive the provision in section 4 that the water areas shall be open to public use generally without charge for boating, swimming, bathing, fishing, and so forth?

James A. Feldman:

–I think that, first of all, that without… I think that that is directed toward the Corps, and that was Congress’ prescription to the Corps that it should not make charges for access to these areas.

Congress specifically indicated that it wanted to continue regulation of hunting and fishing.

Indeed, regulation of… some regulation of hunting and fishing is necessary in order to preserve the stock of fish and game on the land.

Really, some system with certain seasons and certain types of animals and fish being taken at certain times is required or you won’t have any fishing or any hunting–

John Paul Stevens:

Well, and… I’m sorry.

I just assume it means without charge by the Federal Government.

James A. Feldman:

–Yes.

Antonin Scalia:

Anyway, Mr. Feldman, that sentence goes on to say as… shall be maintained when such use is determined by the Secretary of the Army not to be contrary to the public interest, all under such rules and regulations as the Secretary of the Army may deem necessary, which is why I think that provision of C.F.R. is so crucial here.

James A. Feldman:

That’s right.

Antonin Scalia:

They don’t really have to allow any fishing at all if they don’t think it’s in the public interest.

James A. Feldman:

That’s correct, and generally speaking, if the Corps, for instance, felt that the flood control or irrigation purposes of this project would be disserved by permitting people on some area of it or on the whole thing, then they could prohibit any hunting and fishing on the project.

William H. Rehnquist:

But you can’t tell from that regulation whether State and local laws… whether it gives the nod to the State or the tribe because both hunting laws are covered by those… that regulation.

James A. Feldman:

I don’t think it’s… yes.

And I think that not unlike many other circumstances, it may well be, although the issue of State jurisdiction isn’t really… wasn’t really decided below, but it may well be that both the State and the tribe can impose requirements on people who want to hunt on this land.

They have a history before this dispute arose.

The district court found that they had a history of cooperative control.

And, indeed, given the fact that the game moved back and forth from tribal to trust to State lands and so on, that kind of cooperation is going to be necessary in these circumstances anyway.

William H. Rehnquist:

And so, the Federal Government is quite willing to see that… see both of them exact a license so far as the Federal interest is concerned.

James A. Feldman:

That’s right.

If there were some… if that caused some undue problem, the Corps could always remedy that by adopting its own regulations and preempting both of them.

William H. Rehnquist:

Thank you, Mr. Feldman.

James A. Feldman:

Thank you.

William H. Rehnquist:

General Barnett, you have 3 minutes remaining.

Mark W. Barnett:

Thank you, Your Honor, and may it please the Court, Mr. Chief Justice.

I am not sure what part of the record that counsel for the Government is referring to in regard to a Corps interpretation, but I will say that the record does reflect in 1976 a letter from the Corps to the Lower Brule Tribe, which is on the same river just down river, suggesting that their ordinances did not have effect over the take area.

I would submit the… a letter of September of 1986 from the Corps to our Game, Fish and Parks Department, which is at joint appendix 288.

Quote, the position of the Corps has always been that the regulation of hunting and fishing on Corps land is a matter of State law.

This was clearly the intent of section 4 of the Flood Control Act.

And again, as we have said, section 4 of the Flood Control Act says no use of these properties will be permitted which is inconsistent with State game laws.

Antonin Scalia:

General, I don’t find section 327.0, which is the regulation I was reading… I don’t find that cited in either the brief for the Government or the brief for the tribe in this case.

At least if their index is correct, it’s… it hasn’t been cited.

Mark W. Barnett:

There is a cite to.8, which is in the tribal brief, and we do not agree with the interpretation that State or local regulations would include tribal.

As this Court has said in a variety of cases, the attempt by a tribe to exercise jurisdiction over nonmembers on… non-Indians on non-Indian land will be viewed narrowly.

In contrast, the Court has also had a line of cases that expressed the concept of the State sovereignty which exists to the extent not taken up or preempted by Federal law.

Sandra Day O’Connor:

Well, General Barnett, if the Corps of Engineer regulation were very specific and expressly said State and tribal regulation, would they have the authority to permit joint regulation then?

Mark W. Barnett:

They might, although I would submit that would be in conflict with section 4 of the act which clearly contemplates–

Byron R. White:

Well, they might… it’s feasible that the tribe and the State may be able to charge a fee, but once you get into other regulations, it would really be a… it would really be… the Indians might have one notion of take limits and the State might have another.

You can’t live up to them both.

Mark W. Barnett:

–And that is the problem with shared jurisdiction, and I might add that the findings that were referred to by the tribe in the district court, those findings about shared jurisdiction were in the… were in a ruling on the preliminary injunction with regard to the question of whether or not the State could show irreparable injury pending litigation.

Mark W. Barnett:

I… my time is up, Your Honor.

Thank you.

William H. Rehnquist:

Thank you, General Barnett.

The case is submitted.