South Dakota v. Bourland, 508 U.S. 679 (1993)

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SOUTH DAKOTA v. BOURLAND, individually and as chairman of the CHEYENNE RIVER SIOUX TRIBE, et al.

certiorari to the united states court of appeals for the eighth circuit

No. 91-2051. Argued March 2, 1993—Decided June 14, 1993

In 1868, the Fort Laramie Treaty established the Great Sioux Reservation and provided that it be held for the "absolute and undisturbed use and occupation" of Sioux Tribes. The Flood Control Act of 1944 authorized the establishment of a comprehensive flood control plan along the eastern border of the Cheyenne River Reservation, which is part of what was once the Great Sioux Reservation, and mandated that all water project lands be open for the general public's use and recreational enjoyment. Subsequently, in the Cheyenne River Act, the Cheyenne River Sioux Tribe conveyed all interests in 104,420 acres of former trust lands to the United States for the Oahe Dam and Reservoir Project. The United States also acquired an additional 18,000 acres of reservation land previously owned in fee by non-Indians pursuant to the Flood Control Act. Among the rights the Cheyenne River Act reserved to the Tribe or tribal members was a "right of free access [to the taken lands,] including the right to hunt and fish, subject . . . to regulations governing the corresponding use by other [United States] citizens," 10. Until 1988, the Tribe enforced its game and fish regulations against all violators, while petitioner South Dakota limited its enforcement to non-Indians. However, when the Tribe announced that it would no longer recognize state hunting licenses, the State filed this action against tribal officials, seeking to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the reservation and, in the alternative, a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe's authority by withdrawing the lands from the reservation. The District Court ruled, inter alia, that 10 of the Cheyenne River Act clearly abrogated the Tribe's right to exclusive use and possession of the former trust lands and that Congress had not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers on the taken lands. It therefore permanently enjoined the Tribe from exerting such authority. The Court of Appeals affirmed in part, reversed in part, and remanded. It ruled that the Tribe had authority to regulate non-Indian hunting and fishing on the 104,420 acres because the Cheyenne River Act did not clearly reveal


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