RESPONDENT: Yankton Sioux Tribe
LOCATION: United States Department of State
DOCKET NO.: 96-1581
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit
CITATION: 522 US 329 (1998)
ARGUED: Dec 08, 1997
DECIDED: Jan 26, 1998
Barbara B. McDowell - Argued the cause for the United States, as amicus curiae, by special leave of court, supporting the respondents
James G. Abourezk - Argued the cause for the respondents
Mark W. Barnett - Argued the cause for the petitioner
Facts of the case
An 1858 Treaty between the United States and the Yankton Tribe established the Yankton Sioux Reservation in South Dakota. The 1887 Dawes Act permitted the Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. In 1892, pursuant to the Dawes Act, an agreement between the Tribe and the Government, ratified in 1894, provided that nothing "shall be construed to abrogate the  treaty." In 1992, the Southern Missouri Recycling and Waste Management District acquired land for a solid waste disposal facility that lies on unallotted, non-Indian fee land, but falls within the reservation's original 1858 boundaries. In 1994, the Tribe filed suit to enjoin construction. Ultimately, the District Court declined to enjoin construction of the landfill, but granted a declaratory judgment that the landfill lies within the Yankton Sioux Reservation, where federal environmental regulations apply. The Court of Appeals affirmed.
Did Congress diminish the boundaries of the Yankton Sioux Reservation in South Dakota in an 1894 statute that ratified an agreement pursuant to the Dawes Act, which permitted the Government to open reservation land to non-Indian settlement?
Media for South Dakota v. Yankton Sioux Tribe
Audio Transcription for Oral Argument - December 08, 1997 in South Dakota v. Yankton Sioux Tribe
William H. Rehnquist:
We'll hear argument now in No. 96-1581, South Dakota v. Yankton Sioux Tribe.
Mark W. Barnett:
Mr. Chief Justice, and may it please the Court--
The case that is before the Court today involves the question of whether an 1894 Act of Congress had the intent and the effect of disestablishing the Yankton Sioux Reservation.
The State submits that the answer is conclusively yes.
And we base that "yes" on several factors, the first and not least of which is the use of "cession and sum certain" language in the operative... or terms... in the operative section of the agreement and the ratifying Act.
That particular "cession and sum certain", the cession, sale, relinquishment and conveyance of all interests in and to the unalloted land, together with the sum certain, has been held by this Court to create an almost insurmountable presumption, or a nearly conclusive presumption.
And we would submit to the Court that that, in combination with the immediate uptake of jurisdiction by the State of South Dakota in 1895, and continuously uncontested State jurisdiction during the next 100 years, and throwing that together with the fact that that jurisdiction was exercised without objection by the Tribe and without an attempt to exercise jurisdiction by the Tribe or the Federal Government throughout those 100 years, and that's not merely our contention but that also is the observation... excuse me... of both the Eighth Circuit and the... both the majority and dissenting opinion, as well as the opinion of the unanimous State of South Dakota Supreme Court.
And then, add into that, as a method of telling us what everybody understood at the time that this Act was passed, pursuant to the agreement with the Yankton Tribe, was what I will call the immediate wholesale settlement of the area by homesteaders, or what the District Court referred to as the rapid settlement and the loss... the quick loss of Indian character in this area, which would suggest, at least to the State, that that would suggest disestablishment.
We also would submit to you that additional--
Ruth Bader Ginsburg:
May I ask you, General Barnett, you use the word "disestablishment", but as I read particularly Judge Magill's decision, his dissenting opinion, he's very careful to speak always about diminishing.
And you seem to use those words as though they mean the same thing.
Mark W. Barnett:
--Your Honor, I believe that diminishment probably should be read to suggest a case more like Rosebud v. Kneip, where the Court said that as to several counties, the reservation was disestablished, but it still left one county with a compact square of reservation.
And so there was still actually 18 U.S.C., 1151(a)-type reservation country out there, but it was diminished in size.
The case that we have here today... and I think the parties would agree... that the case we are doing today is disestablishment, just like the DeCoteau case, where the Lake Traverse Reservation was found by this Court to be disestablished, meaning there was still no 1151-type--1151(a)-type reservation out there.
I... I might add, Your Honor, that diminishment and disestablishment at one time were probably not terms of art.
In our view, they are now.
And we are, I think, today here litigating disestablishment.
Ruth Bader Ginsburg:
Even though Judge Magill said that he thought that the District Court erred in holding that the reservation had not been diminished?
Mark W. Barnett:
And I... and I do not believe, from reading all of Judge Magill's opinion, that he's trying to suggest that some 1151(a)-type reservation still existed after 1894.
I think, to be honest, I would suggest to you that... that he was probably using diminishment and disestablishment interchangeably, and that has happened in the history of the... of the court system in other cases as well.
Returning for a moment, if I may, to the settlement history that took place out there... and the reason I bring it up is because this Court, on other occasions, has looked to the settlement history immediately after the passage of the Opening Act to help it determine what did everybody understand at the time.
And in this case, as was suggested by the Court of Claims in 1980... or as was found by that Court... within 3 years of the opening of this reservation, more than 100,000 of these opened acres had been sold.
Within 5 years, 90 percent had been sold.
And as you will see at joint appendix 475, by 1913, in addition to the ceded lands which had been put up for settlement by the homesteaders, more than twothirds of the allotted lands left to the Indians in 1894 had also been sold.
Sandra Day O'Connor:
General Barnett, was the particular tract of land that we're concerned with in this case part of the land that was restored to the public domain by the 1892 agreement?
Mark W. Barnett:
--Yes, Your Honor, we do contend that it was restored to the public domain.
And by way of explanation, at the time of trial, 90 percent of all of the land in what we call the disputed area, 90 percent of that former reservation area was in nonIndian hands.