[ Footnote * ] Together with No. 73-1500, Erickson, Warden v. United States ex rel. Feather et al., on certiorari to the United States Court of Appeals for the Eighth Circuit.
The Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty, held terminated and returned to the public domain by an 1891 Act which, in ratification of a previously negotiated 1889 Agreement between the affected Indian tribe and the United States, not only opened all unallotted lands to settlement but also appropriated and vested in the tribe a sum certain per acre in payment for the express cession and relinquishment of "all" of the tribe's "claim, right, title, and interest" in the unallotted lands; and therefore the South Dakota state courts have civil and criminal jurisdiction over conduct of members of the tribe on the non-Indian, unallotted lands within the 1867 reservation borders. The face of the Act and its surrounding circumstances and legislative history all point unmistakably to this conclusion. Mattz v. Arnett, 412 U.S. 481 , and Seymour v. Superintendent, 368 U.S. 351 , distinguished. Pp. 431-449.
No. 73-1148, 87 S. D. 555, 211 N. W. 2d 843, affirmed; No. 73-1500, 489 F.2d 99, reversed.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 460.
Bertram E. Hirsch argued the cause for petitioner in No. 73-1148. With him on the briefs was Arthur Lazarus, Jr. William F. Day, Jr., Special Assistant Attorney [420 U.S. 425, 426] General of South Dakota, argued the cause for petitioner in No. 73-1500 and respondent in No. 73-1148. On the briefs were Kermit A. Sande, Attorney General, Walter W. Andre, Assistant Attorney General, and Tom D. Tobin, Special Assistant Attorney General. Larry R. Gustafson argued the cause and filed a brief for respondents in No. 73-1500.
Harry R. Sachse argued the cause for the United States as amicus curiae urging affirmance in No. 73-1500. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Louis F. Claiborne, and Edmund B. Clark.Fn
Fn [420 U.S. 425, 426] Solicitor General Bork, Assistant Attorney General Johnson, Louis F. Claiborne, Harry R. Sachse, and Edmund B. Clark filed a brief for the United States as amicus curiae urging reversal in No. 73-1148.
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.
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 [420 U.S. 425, 427] the public domain, by the Act of March 3, 1891, c. 543, 26 Stat. 1035. In each of the two cases, the South Dakota courts asserted jurisdiction over members of the Sisseton-Wahpeton Tribe for acts done on lands which, though within the 1867 reservation borders, have been owned and settled by non-Indians since the 1891 Act. The parties agree that the state courts did not have jurisdiction if these lands are "Indian country," as defined in 18 U.S.C. 1151, 1 and that this question depends upon whether the lands retained reservation status after 1891. 2 We hold, for the reasons that follow, that the [420 U.S. 425, 428] 1891 Act terminated the Lake Traverse Reservation, and that consequently the state courts have jurisdiction over conduct on non-Indian lands within the 1867 reservation borders.
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. [420 U.S. 425, 429] On August 31, 1972, the petitioner commenced a habeas corpus action in a State Circuit Court alleging that the respondent had lacked jurisdiction to order her children separated from her and asking that they be released from the custodial process of the respondent. After a hearing, the state court denied the writ, finding that the respondent had possessed jurisdiction because "the non-Indian patented land, upon which a portion of the acts or omissions giving rise to the Order of the District County Court occurred, is not within Indian Country." 3 While acknowledging that this non-Indian patented land is within the 1867 boundaries of the Lake Traverse Reservation, the court noted that the tribe "had sold or relinquished [the non-Indian land in question] to the United States under the terms of the agreement which was ratified by acts of Congress, March 3, 1891." The South Dakota Supreme Court affirmed, 4 upon the ground that the 1891 Act ratified an 1889 Agreement by which
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 [420 U.S. 425, 431] as to the effect of the 1891 Act on South Dakota's civil and criminal jurisdiction over unallotted lands within the 1867 reservation boundaries.
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. 7
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. 8 Meanwhile, the Government [420 U.S. 425, 432] had altered its general policy toward the Indian tribes. After 1871, the tribes were no longer regarded as sovereign nations, and the Government began to regulate their affairs through statute or through contractual agreements ratified by statute. 9 In 1887, the General Allotment Act (or Dawes Act) was enacted in an attempt to reconcile the Government's responsibility for the Indians' welfare with the desire of non-Indians to settle upon reservation lands. 10 The Act empowered the President to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to white settlers, with the proceeds of these sales being dedicated to the Indians' benefit. See Mattz v. Arnett, 412 U.S., at 496 -497.
Against this background, a series of negotiations took place in 1889 with the objective of opening the Lake [420 U.S. 425, 433] Traverse Reservation to settlement. In April of that year, a South Dakota banker, D. W. Diggs, sent to the Secretary of the Interior a request on behalf of the local white community that reservation lands be made available for commerce, farming, and railroad development. 11 In May, Diggs met with a council of tribal leaders, who told him that the tribe would consider selling the reserved lands if the Government would first pay a "loyal scout claim" which the tribe believed was owing as part of the 1867 Treaty. Spokesmen for the tribe were quoted in the local press that month as follows:
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 14 were appointed in November, and two weeks of meetings at the reservation promptly ensued. The proceedings at these meetings [420 U.S. 425, 435] were transcribed, 15 and the records show that the Indians wished to sell outright all of their unallotted lands, on three conditions: that each tribal member, regardless of age or sex, receive an allotment of 160 acres; that Congress appropriate moneys to make good on the tribe's outstanding "loyal scout claim"; and that an adequate sales price per acre be arrived at for all of the unallotted land. 16 [420 U.S. 425, 436]
In December, an Agreement was reached and the contract was signed by the required majority of male adult tribal members. Its terms 17 were accurately summarized [420 U.S. 425, 437] by the Commissioner of Indian Affairs in his report to the Secretary of the Interior: 18
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." 26 The ceded lands were rapidly purchased and settled by non-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." 27 Federal Indian agents have remained active in the area, and Congress [420 U.S. 425, 443] has regularly appropriated funds for the tribe's welfare; 28 the allotted Indian tracts have retained their "trust" status pursuant to periodic Executive Orders. 29 A tribal constitution did not appear until 1946, and tribal jurisdiction under it extended only to "Indian-owned lands lying in the territory within the original confines of the Sisseton-Wahpeton Lake Traverse Sioux Reservation." 30 In 1963, the Court of Appeals for the Eighth Circuit held that the 1891 Act had terminated the reservation; in the process, the court noted that "the highest court of that state [South Dakota] has repeatedly held that South Dakota has jurisdiction," and that the Justice Department had taken a like position. DeMarrias v. South Dakota, 319 F.2d, at 846.
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." 31 Apparently, however, no tribal court or legal code was established to exercise this jurisdiction. In 1972, a field [420 U.S. 425, 444] solicitor for the Department of the Interior rendered an opinion that the 1891 Act had not extinguished tribal jurisdiction over the 1867 reservation lands. 32 In 1973, the Court of Appeals overruled DeMarrias, in the decision here under review, and in early 1974, after several months of preparation, the tribe formally established a law court and a legal code to exercise civil and criminal jurisdiction throughout the 1867 reservation lands.
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. [420 U.S. 425, 445]
But in this case, "the face of the Act," and its "surrounding circumstances" and "legislative history," all point unmistakably to the conclusion that the Lake Traverse Reservation was terminated in 1891. The negotiations leading to the 1889 Agreement show plainly that the Indians were willing to convey to the Government, for a sum certain, all of their interest in all of their unallotted lands. See supra, at 432-437. The Agreement's language, adopted by majority vote of the tribe, was precisely suited to this purpose:
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. [420 U.S. 425, 447] 18 U.S.C. 1151 (c). See United States v. Pelican, 232 U.S. 442 . With the benefit of hindsight, it may be argued that the tribe and the Government would have been better advised to have carved out a diminished reservation, instead of or in addition to the retained allotments. But we cannot rewrite the 1889 Agreement and the 1891 statute. For the courts to reinstate the entire reservation, on the theory that retention of mere allotments was ill-advised, would carry us well beyond the rule by which legal ambiguities are resolved to the benefit of the Indians. We give this rule the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent.
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 34 did not terminate the Klamath River Indian Reservation in northern California. That Act declared the reservation lands "subject to settlement, entry, and purchase" under the homestead laws of the United States, empowered the Secretary of the Interior to allot tracts to tribal members, and provided that any proceeds of land sales to settlers should be placed in a fund for the tribe's benefit. The 1892 statute could be considered a termination provision only if continued reservation status were inconsistent with the mere opening of lands to settlement, and such is not the case. See 18 U.S.C. 1151 (a). [420 U.S. 425, 448] But the 1891 Act before us is a very different instrument. It is not a unilateral action by Congress but the ratification of a previously negotiated agreement, to which a tribal majority consented. The 1891 Act does not merely open lands to settlement; it also appropriates and vests in the tribe a sum certain - $2.50 per acre - in payment for the express cession and relinquishment of "all" of the tribe's "claim, right, title and interest" in the unallotted lands. The statute in Mattz, by contrast, benefited the tribe only indirectly, by establishing a fund dependent on uncertain future sales of its land to settlers. See also Ash Sheep Co. v. United States, 252 U.S. 159, 164 -166. Furthermore, the circumstances surrounding congressional action in Mattz militated persuasively against a finding of termination. That action represented a clear retreat from previous congressional attempts to vacate the Klamath River Reservation in express terms; and the Department of the Interior had consistently regarded the Klamath River Reservation as a continuing one, despite the 1892 legislation. Mattz v. Arnett, supra, at 503-505. In the present case, by contrast, the surrounding circumstances are fully consistent with an intent to terminate the reservation, and inconsistent with any other purpose.
In Seymour, the Court held that a 1906 Act of Congress 35 did not terminate the southern portion of the Colville Indian Reservation in Washington. Like that in question in Mattz, this Act was unilateral in character; like that in question in Mattz, it merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians' benefit. The Seymour Court was not confronted with a straightforward agreement ceding lands to the Government for a sum certain. In Seymour, the Court sharply contrasted the 1906 Act, which provided [420 U.S. 425, 449] only for non-Indian settlement, with an 1892 Act, which plainly "`vacated'" and restored "`to the public domain'" the northern portion of the Colville Reservation. Seymour v. Superintendent, 368 U.S., at 355 . The 1891 Act before us here is analogous to that 1892 statute.
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.
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 [420 U.S. 425, 451] Warpeton bands of Dakota or Sioux Indians, as follows, to wit:
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 [420 U.S. 425, 452] bands who were released from prison in 1866, the following described lands as a permanent reservation, viz.:
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 [420 U.S. 425, 453] any transfer of said lands, or portions thereof, except to the United States, but said lands and the improvements thereon shall descend to the proper heirs of the persons obtaining a patent.
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 [420 U.S. 425, 454] unless it be in payment for labor performed or for produce delivered: Provided, That, when persons located on either reservation, by reason of age, sickness, or deformity, are unable to labor, the agent may issue clothing and subsistence to such persons from such supplies as may be provided for said bands.
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 [420 U.S. 425, 455] laws, and all rules and regulations for the government of said Indians, as may be prescribed by the Interior Department: Provided, That all rules, regulations, or laws adopted or amended by the chiefs and headmen on either reservation shall receive the sanction of the agent.
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, [420 U.S. 425, 456] and situated partly in the State of North Dakota and partly in the State of South Dakota:
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 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.
In witness whereof we have hereunto set our hands and seals the day and year above written.
Simon Ananangmari (his x mark), and others
[ Footnote 2 ] If the lands in question are within a continuing "reservation," jurisdiction is in the tribe and the Federal Government "notwithstanding the issuance of any patent, [such jurisdiction] including rights-of-way running through the reservation." 18 U.S.C. 1151 (a). On the other hand, if the lands are not within a continuing reservation, jurisdiction is in the State, except for those land parcels which are "Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." 18 U.S.C. 1151 (c). Even within "Indian country," a State may have jurisdiction over some persons or types of conduct, but this jurisdiction is quite limited. See, e. g., McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 ; Williams v. Lee, 358 U.S. 217 ; Worcester v. Georgia, 6 Pet. 515. While 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction. McClanahan v. Arizona State Tax Comm'n, supra, at 177-178, n. 17; Kennerly v. District Court of Montana, 400 U.S. 423, 424 n. 1; Williams v. Lee, supra, at 220-222, nn. 5, 6, and 10.
[ Footnote 3 ] The Circuit Court's opinion of September 26, 1972, is unpublished. It was stipulated that some 50% of the mother's allegedly wrongful acts and omissions occurred on non-Indian patented land, the remainder occurring on Indian allotments over which the State does not have jurisdiction. The parties here have assumed that the State had jurisdiction to exercise custody over the petitioner's children if the non-Indian, patented lands were not "Indian country" under 18 U.S.C. 1151 (a). We have made the same assumption. We note, however, that 1151 (c) contemplates that isolated tracts of "Indian country" may be scattered checkerboard fashion over a territory otherwise under state jurisdiction. In such a situation, there will obviously arise many practical and legal conflicts between state and federal jurisdiction with regard to conduct and parties having mobility over the checkerboard territory. How these conflicts should be resolved is not before us.
[ Footnote 4 ] 87 S. D. 255, 211 N. W. 2d 843.
[ Footnote 5 ] Id., at 559, 211 N. W. 2d, at 845.
[ Footnote 6 ] 489 F.2d 99.
[ Footnote 7 ] Treaty of Feb. 19, 1867, 15 Stat. 505. The treaty is reprinted as Appendix A to this opinion.
[ Footnote 8 ] On April 22, 1889, a banker from Milbank, S. Dak., D. W. Diggs, wrote the Secretary of the Interior:
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.
[ Footnote 9 ] Act of Mar. 3, 1871, c. 120, 1, 16 Stat. 566. But that Act did not purport to invalidate or impair any prior treaty obligation incurred by the United States toward an Indian tribe. 25 U.S.C. 71.
[ Footnote 10 ] Act of Feb. 8, 1887, c. 119, 24 Stat. 388.
[ Footnote 11 ] See n. 8, supra.
[ Footnote 12 ] The Minneapolis Tribune, May 22, 1889, p. 1 (reproduced in 1 App. for Respondent in No. 73-1148, p. 19).
[ Footnote 13 ] National Archives Records of the Bureau of Indian Affairs, Record Group No. 75, Land Division, Letter Book 188, Aug. 13, 1889.
[ Footnote 14 ] Charles A. Maxwell. Chief of the Land Division of the Department of the Interior, Eliphalet Whittlesey, Secretary of the Board of Indian Commissioners, and D. W. Diggs.
[ Footnote 15 ] See the Report of councils with Sisseton and Wahpeton Indians in S. Exec. Doc. No. 66, 51st Cong., 1st Sess., 15-29 (1890) (Councils Report).
[ Footnote 16 ] The Government negotiators reported to the Commissioner of Indian Affairs that they had "advised them [the tribe] that we proposed to give $2.50 per acre for each and every acre of the lands which they desired to dispose of . . . ." Letter to Commissioner, Dec. 1889, S. Exec. Doc. No. 66, supra, at 7. The report continued:
[ Footnote 17 ] The Agreement is reprinted as Appendix B to this opinion.
[ Footnote 18 ] S. Exec. Doc. No. 66, supra, at 3.
[ Footnote 19 ] For instance, a report of the Senate Committee on Indian Affairs summarized the Agreement as follows:
[ Footnote 20 ] Act of Mar. 3, 1891, 30, 26 Stat. 1039. See 22 Cong. Rec. 2809-2810, 3784 (1891) (remarks of Congs. Holmann and Perkins); id., at 3453, 3457-3458 (1891) (remarks of Sens. Pettigrew and Dawes).
[ Footnote 21 ] Act of Mar. 3, 1891, 26 Stat. 989. The other agreements ratified were negotiated with the following tribes: the Citizen Band of Pottawatomie Indians, 8, 26 Stat. 1016; the Absentee Shawnee Indians, 9, 26 Stat. 1018; the Cheyenne and Arapahoe Tribes, 13, 26 Stat. 1022; the Coeur d'Alene Indians (I), 19, 26 Stat. 1026; the Coeur d'Alene Indians (II), 20, 26 Stat. 1029; the Gros Ventres, Mandans, and Arickarees, 23, 26 Stat. 1032; the Crow Indians, 31, 26 Stat. 1039.
[ Footnote 22 ] The Sisseton-Wahpeton Agreement provided that the tribe agreed to "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. . . ." 26 Stat. 1036. The language in the other agreements ratified at the same time is comparable:
[ Footnote 23 ] Remarks of Cong. Perkins, 22 Cong. Rec. 3784 (1891).
[ Footnote 24 ] Remarks of Sen. Morgan, id., at 3455.
[ Footnote 25 ] Remarks of Sen. Dawes, id., at 3879.
[ Footnote 26 ] Proclamation of the President, Apr. 11, 1892, 27 Stat. 1017.
[ Footnote 27 ] Compare the maps contained in the Annual Reports of the Commissioner of Indian Affairs for 1892, 1909, and 1918, with the Map of Indian Lands and Related Facilities as of 1971, compiled by Bureau of Indian Affairs in cooperation with the Geological Survey, U.S. Dept. of Interior. The parties here have cited us to numerous Interior Department memoranda and letters, issued over the past 80-odd years, which refer to the area either as a "reservation" or a "former reservation." No consistent pattern emerges. The authors of these documents appear to have put no particular significance on their choice of a label.
[ Footnote 28 ] See, e. g., 39 Stat. 988 and 42 Stat. 576.
[ Footnote 29 ] See Exec. Orders Nos. 1916 (1914), 3994 (1924), 7984 (1938). See also the delegated orders of the Secretary of the Interior, at 28 Fed. Reg. 11630 (1963), 33 Fed. Reg. 15067 (1968), and 38 Fed. Reg. 34463 (1973). The delegation of authority was by Executive Order No. 10250 (June 5, 1951), 3 CFR 755-757 (1949-1953 Comp.). Congress has several times authorized extensions of trust relations with respect to Indian tribes, e. g., Acts of June 21, 1906, 34 Stat. 326, and Mar. 2, 1917, 39 Stat. 976.
[ Footnote 30 ] Art. I, Constitution and Bylaws of the Sisseton-Wahpeton Sioux Tribe, approved by the Commissioner of Indian Affairs, Oct. 16, 1946.
[ Footnote 31 ] Art. I, Revised Constitution and Bylaws of the Sisseton-Wahpeton Sioux Tribe, approved by the Commissioner of Indian Affairs, Aug. 26, 1966.
[ Footnote 32 ] Boundaries of the Lake Traverse Indian Reservation, Field Solicitor's Opinion, Aberdeen Office, Bureau of Indian Affairs, Aug. 16, 1972.
[ Footnote 33 ] Agreement of 1889, Art. I, 26 Stat. 1036.
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:
[ Footnote 34 ] Act of June 17, 1892, 27 Stat. 52.
[ Footnote 35 ] 34 Stat. 80.
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). [420 U.S. 425, 461]
Petitioner Erickson is the warden of a South Dakota penitentiary having in custody the 10 respondents in No. 73-1500. They are all members of the Sisseton-Wahpeton Tribe, and their crimes were committed within the boundaries of the Lake Traverse Reservation but on land owned by non-Indians. The Court of Appeals, ruling on petitions for habeas corpus, held that South Dakota had no jurisdiction to try respondents, 489 F.2d 99 (CA8 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 [420 U.S. 425, 462] lands allotted were not for the general use of the United States but with the exception of school lands 1 were to be "subject only to entry and settlement under the homestead and townsite laws" as provided in 30 of the Act. 26 Stat. 1039. The purpose was not to alter or change the reservation but to lure white settlers onto the reservation whose habits of work and leanings toward education would invigorate life on the reservation. 2 [420 U.S. 425, 463]
While doubtful clauses in agreements with Indians are resolved in favor of the Indians, see Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918), there is no doubtful language in the Agreement or in the 1891 Act. We recently stated in Mattz v. Arnett, 412 U.S. 481, 504 n. 22 (1973), that Congress uses "clear language of express termination" to disestablish and diminish a reservation and restore it to the public domain "when that result is desired." Congress in the very Act that opened the instant reservation opened several other reservations also. But as respects them it used different language. In contrast to the instant reservation, one other tribe agreed to "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" a described tract. 3 Another agreed to "cede, convey, transfer, relinquish, and surrender forever and absolutely, without any reservation" all their claim, title, and interest in a described tract. 4 Another agreed to "cede, sell, and relinquish to the United States all their right, title, and interest in and to all that portion" of a named reservation as specifically described. 5 Another agreed to sell to the United States "all that portion" of the reservation described by metes and bounds. 6 [420 U.S. 425, 464] Congress made an unmistakable change when it came to the lands ceded in the instant case.
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. 7
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 [420 U.S. 425, 465] tribal constitution approved August 26, 1966, perpetuates that concept:
If this were a case where a Mason-Dixon type of line had been drawn separating the land opened for homesteading from that retained by the Indians, it might well be argued that the reservation had been diminished; but that is not the pattern that took place after 1891. Units of land suitable for homesteaders were scattered throughout the reservation. It is indeed difficult, looking at a current map, to find any substantial unit of contiguous Indian land left. The map picture, as stated in oral argument, shows a "crazy quilt pattern." The "crazy quilt" or "checkerboard" jurisdiction defeats the right of tribal self-government guaranteed by Art. X of the 1867 Treaty, 15 Stat. 510, and never abrogated.
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:
[ Footnote 1 ] See 35 Cong. Rec. 3187, where Senator Gamble stated:
[ Footnote 2 ] A member of the Commission negotiating with the Indians stated:
[ Footnote 3 ] Citizen Band of Pottawatomie Indians, Act of Mar. 3, 1891, 26 Stat. 1016.
[ Footnote 4 ] Cheyenne and Arapahoe Indians, Act of Mar. 3, 1891, 26 Stat. 1022.
[ Footnote 5 ] Arickaree, Gros Ventre, and Mandan Indians, Act of Mar. 3, 1891, 26 Stat. 1032.
[ Footnote 6 ] Crow Indians, Act of Mar. 3, 1891, 26 Stat. 1040.
[ Footnote 7 ] See n. 1, supra.
[ Footnote 8 ] The DeCoteau case involves a problem of domestic relations which goes to the heart of tribal self-government. The question of a child's welfare cannot be decided without reference to his family structure. This involves both a sympathetic knowledge of the individuals involved, and a knowledge of the background culture. The tribe is fearful that if South Dakota has jurisdiction over tribal children it will place them with non-Indian families where they will lose their cultural identity. Accordingly the tribe on July 6, 1972, passed the following resolution: