Yankton Sioux Tribe v. U.S. Army Corps of Engineers, et al

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, KERMIT E. BYE and BRIAN S. MILLER. James B. Loken, Authoring Judge (PUBLISHED) [3670257] [08-2255]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 08-2255
___________
Yankton Sioux Tribe,
Plaintiff - Appellant,
v.
United States Army Corps of
Engineers, et al.,
Defendants - Appellees.

*
*
*
* Appeal from the United States
* District Court for the
* District of South Dakota.
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*
*
*
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Submitted: May 12, 2009
Filed: June 2, 2010
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Before LOKEN, Chief Judge,* BYE, Circuit Judge, and MILLER,** District Judge.
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LOKEN, Chief Judge.
An 1858 treaty between the United States and the Yankton Sioux Tribe of
Native Americans established the Yankton Sioux Reservation (the “Reservation”),
comprising approximately 430,000 acres in what is now Charles Mix County, South

*

The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
**

The Honorable Brian Stacy Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.

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Dakota, bounded on the south and west by the Missouri River. This appeal attacks the
validity of land transfers by the U.S. Army Corps of Engineers to the State of South
Dakota. It is resolved by our determination of the current boundaries of the
Reservation. We deferred our ruling pending disposition of another appeal involving
a different aspect of the long-standing dispute over the Reservation. We now follow
our recent decision in Yankton Sioux Tribe v. Podhradsky, --- F.3d ---, 2010 WL
1791365 (8th Cir. May 6, 2010) (Podhradsky), and affirm.
I.
Implementing the Dawes Act of 1887, federal agents “allotted” a substantial
portion of the Reservation to individual tribal members in noncontiguous parcels. In
1892, federal Commissioners negotiated an agreement, ratified by Congress in 1894,
whereby the Tribe ceded (transferred) 170,000 unallotted acres to the United States
as surplus lands. Act of August 15, 1894, ch. 290, 28 Stat. 286 (“the 1894 Act”). As
the 1892 agreement contemplated, the United States sold nearly all of the ceded lands,
which were interspersed with allotted lands, to non-Indian settlers.
In South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998), the Supreme
Court held that the Reservation was diminished by the lands ceded to the United
States under the 1894 Act. However, the Court declined to determine whether
Congress disestablished the Reservation altogether and remanded the case for further
proceedings. Id. at 358. Since then, the remaining issues have been litigated in two
separate lawsuits before District Judge Lawrence Piersol in the District of South
Dakota and in multiple appeals to this court.
The lead case concerned the jurisdiction of the Tribe, the State of South Dakota,
and the United States over non-ceded lands within the Reservation’s original 1858
boundaries. Initially, we rejected the State’s contention that the Reservation was
disestablished by the 1894 Act, but we held that the Reservation was further
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diminished when allotted lands passed out of Indian ownership. Yankton Sioux Tribe
v. Gaffey, 188 F.3d 1010 (8th Cir. 1999) (“Gaffey”), cert. denied, 530 U.S. 1261
(2000), rev’g in part 14 F. Supp. 2d 1135, 1159-60 (D.S.D. 1998). We remanded,
instructing the district court to determine what categories of land comprised the
diminished Reservation. Resolving appeals from that ruling, we recently held that the
diminished Reservation consists of allotted lands that remain in trust, additional lands
taken into trust, and ceded lands reserved by the 1894 Act (“agency trust lands”).
Podhradsky, 2010 WL 1791365 at * 20, rev’g in part 529 F. Supp. 2d 1040 (D.S.D.
2007). The interested reader is referred to these opinions for a thorough review of the
complex history and legal issues surrounding this critical part of the broad dispute.
This appeal concerns the second case arising out of the broad controversy. In
the Flood Control Act of 1944, 58 Stat. 887, Congress authorized the Corps to
construct dams along the Missouri River. The Corps acquired lands for this vast
project by condemnation and purchase, including lands within the 1858 boundaries
of the Reservation. In Title VI of the Water Resources Development Act of 1999,
Congress directed the Corps to transfer to the State of South Dakota for fish and
wildlife or public recreation uses specified lands “located outside the external
boundaries of a reservation of any Indian Tribe” that the Corps had acquired to
implement the Pick-Sloan Missouri River Basin project.1 In this action, the Tribe
seeks to nullify the sale to the State of recreation areas the Corps initially acquired for
the Fort Randall Dam project in south-central South Dakota -- the 971-acre North
Point Recreation Area and the 44-acre White Swan Recreation Area -- and the lease
of the 70-acre Spillway Recreation Area. The Tribe argues that these lands are within

1

Pub. L. No. 106-53, 113 Stat. 269, 391 §§ 605(b)(3), (c)(2) (1999), as amended
by Pub. L. No. 106-541, § 540(h)(4), 114 Stat. 2572, 2670 (2000). These statutes
have never been codified.
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“the external boundaries” of the Reservation and are therefore barred from being
transferred by §§ 605(b)(3) and (c)(2) of the WRDA, as amended.2
After first resolving the issue we remanded in Podhradsky, Judge Piersol
granted summary judgment for the Corps and State. Noting the Tribe admitted that
the Corps held title to the lands in question prior to enactment of the WRDA, Judge
Piersol concluded that the lands here at issue do not fall within any of the categories
of land which he determined in Podhradsky “continue to fall within the exterior
boundaries of the checkerboard Yankton Sioux Reservation.” Yankton Sioux Tribe
v. U.S. Army Corps of Eng’rs, No. 02-4126, 2008 WL 895830 at *3 (D.S.D. Mar. 31,
2008). The Tribe appeals. Reviewing the grant of summary judgment de novo, and
applying the diminished Reservation boundaries adopted in Podhradsky, we affirm.
II.
Because this appeal was briefed and argued with the cross appeals pending in
Podhradsky, the parties have understandably reiterated their core positions in that
case, namely, the Tribe’s contention that the Reservation was diminished only by the
sales of surplus lands ceded by the 1894 Act (as the Supreme Court held in Yankton
Sioux Tribe), and the State’s contrary contention that the Reservation was altogether
disestablished by the 1894 Act. We rejected those contentions in Podhradsky. That
decision is final (subject only to further review by this court or the Supreme Court)
and binding on our panel. Therefore, we will discuss in this opinion only those issues
raised by the Tribe that were not presented to and decided by the court in Podhradsky.

2

We note that, in the 2000 WRDA, Congress amended § 605(d)(2)(B)(i)(II)(cc)
to specifically direct the Corps to lease the Spillway Recreation Area to the State. 114
Stat. at 2666. Given our broader rejection of the Tribe’s claims, we need not address
whether this amendment foreclosed the specific Spillway claim.
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1. The North Point, White Swan, and Spillway recreation areas here at issue
consist of lands within the 1858 Reservation boundaries that were subsequently
allotted to individual members of the Tribe.3 Most parcels were then fee patented to
allottees or their heirs and assigns and sold to non-Indians. Podhradsky held that the
Reservation now consists of allotted land that remained in trust and other trust lands,
but does not include allotted land that passed out of Indian hands. 2010 WL 1791365,
at *20, applying Gaffey, 188 F.3d at 1030.4 Thus, these fee-patented parcels were
outside the Reservation’s diminished boundaries when the Corps acquired them. The
Tribe argues that Podhrasky decided only the jurisdictional status of these lands; they
remain part of the Reservation because the Corps acquired the lands under the Flood
Control Act of 1944, and we held in Lower Brule Sioux Tribe v. South Dakota, 711
F.2d 809, 813 (8th Cir. 1983), that the Flood Control Act did not authorize the
diminishment of any reservation. However, as the district court recognized, the
diminishment here did not result from Flood Control Act acquisitions. Rather, by
reason of the 1894 Act as construed in Gaffey, these fee-patented lands were outside
the “external boundaries” of the Reservation before they were acquired by the Corps.
Therefore, the Corps’ subsequent transfer of these lands to the State did not violate
§§ 605(b)(3) and (c)(2) of the WRDA.
The Tribe also contends that summary judgment was inappropriate because
there are material issues of fact whether the Corps acquired some tracts of allotted
lands from non-Indians whose titles derived from fee patents that were forced upon
3

Apparently, one 40-acre parcel was part of the lands ceded to the United States
by the 1894 Act, in which case it is clearly outside the diminished Reservation.
4

Typically, a reservation is diminished when a contiguous piece is carved out;
while non-Indians may acquire title to land in the remainder, its reservation status
does not change. See Solem v. Bartlett, 465 U.S. 463, 470-71 (1984). In Gaffey,
however, we concluded that Congress intended the Reservation to be further
diminished “by the loss of those lands originally allotted to tribal members which
have passed out of Indian hands.” 188 F.3d at 1030.
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tribal members. Though presented as a diminishment issue, this is in fact a timebarred collateral attack on the validity of the titles the Corps acquired some sixty years
ago. See Nichols v. Rysavy, 809 F.2d 1317 (8th Cir.), cert. denied, 484 U.S. 848
(1987). These lands were not within the Reservation when they were acquired for
flood control purposes, nor when the Corps transferred them to the State.
2. A few tracts in the North Point and White Swan recreation areas were
allotted land still held in trust for the benefit of allottees when they were acquired by
the Corps in condemnation proceedings some sixty years ago. The record reflects that
the Corps commenced condemnation proceedings in the District of South Dakota; the
Bureau of Indian Affairs did not oppose condemnation but negotiated appropriate
compensation for the Indian allottees; each allottee signed a Consent to Transfer of
Lands acknowledging that, in exchange for specified compensation, “absolute fee title
will be conveyed to the United States of America for the benefit of the War
Department by court decree;” the district court then entered final condemnation
orders; and the Attorney General provided the Secretary of the Army a letter opining
that “valid title to the above tract is vested in the United States of America in fee
simple.” The Tribe concedes that the United States held fee simple title to these tracts
when the WRDA was enacted and when the Corps transferred them to the State. See
Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641, 656-657 (1890) (United
States may use its eminent domain powers to take Indian lands); 25 U.S.C.
§§ 341, 357. Moreover, any challenge to the takings would be time-barred. See 28
U.S.C. § 2401.
In Podhradsky, we held that allotments continuously held in trust for the benefit
of the tribe or its members are part of the diminished Reservation. 2010 WL 1791365
at *13. However, we held in Gaffey that the Reservation was diminished “by the loss
of those lands originally allotted to tribal members which have passed out of Indian
hands.” 188 F.3d at 1030. The Tribe argues that the district court erred in applying
this ruling to the Corps’ acquisition of such lands because Congress only “intended
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to diminish the reservation by . . . land which it foresaw would pass into the hands of
white settlers and homesteaders,” id. at 1028, not to the United States.
This argument is without merit. First, the holding in Gaffey, which is binding
on our panel, is not so limited. Second, a member of the Tribe who had a beneficial
interest in allotted land still held in trust exchanged that interest for compensation
when the land was acquired by the Corps in a condemnation proceeding, just as the
same interest was surrendered by an allottee who took a fee patent and sold allotted
land to a non-Indian.5 Third, the Corps’ use of the acquired land to build a dam and
reservoir, which required the relocation of eight percent of the Tribe’s population, was
fundamentally inconsistent with the concept of a reservation -- “land set aside under
federal protection for the residence or use of tribal Indians.” Cohen’s Handbook of
Federal Indian Law § 3.04[2][c][ii], at 189 (2005 ed.). Our decision in Gaffey was
that the transfer from Indian ownership diminished the Reservation, regardless of the
identity of the transferee. Therefore, allotted lands still held in trust became lands
“located outside the external boundaries” of the Reservation when fee simple title was
acquired by the Corps for the Fort Randall Dam project.6

5

The record reflects that individual tribal members were initially paid a total of
$121,210 as compensation for the takings. In 1954, Congress authorized a payment
of $106,500 “for the purpose of relocating the members of the Yankton Sioux Tribe,
South Dakota, who reside or have resided, on tribal and allotted lands acquired by the
United States for the Fort Randall Dam and Reservoir project.” 43 U.S.C.A. § 1200e.
In 2002, Congress placed an additional $23 million in a trust fund as compensation
for the dam project. Yankton Sioux and Santee Sioux Tribes Equitable Compensation
Act, Pub. L. No. 107-331, 116 Stat. 2834, 2838-2843 (2002)
6

The Tribe also asserts that there may have been allotted land acquired by the
Corps that had been continuously held in fee by tribal members, rather than nonIndians. Our decision in Podhradsky left open the Reservation status of lands falling
in this category. 2010 WL 1791365 at *18. Without question, however, the Corps
acquired fee title to these lands well before enactment of the WRDA.
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III.
Finally, the Tribe appeals the district court’s denial of its motion to disqualify
the Department of Justice from representing the Corps. The Tribe filed this motion
in May 2007, almost five years after commencement of the suit, arguing that the
Department should not represent the Corps in this case because its attorneys,
representing the United States in its capacity as trustee, sided with the Tribe in the
Gaffey/Podhradsky litigation. The Tribe cites no authority for the proposition that
the Attorney General may be disqualified from performing his statutory duty of
representing another department of the United States in federal court. 28 U.S.C.
§ 516. The district court did not abuse its discretion in denying this untimely motion.
See Droste v. Julien, 477 F.3d 1030, 1035 (8th Cir. 2007) (standard of review).
The judgment of the district court is affirmed.
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