United States v. Glen D. Dupris , 612 F.2d 319 ( 1979 )

HEANEY, Circuit Judge.

The United States appeals from the judgment of the District Court¹ dismissing an information against Glen D. Dupris, who was charged with burglary and larceny. Dupris was prosecuted under 18 U.S.C. § 1153 which provides exclusive federal jurisdiction over specified offenses committed by any Indian in “Indian country.”² The District Court granted Dupris’ motion to dismiss on the ground that there was no federal jurisdiction pursuant to 18 U.S.C. § 1153 because Eagle Butte, where the crime occurred, was not “Indian country.” The District Court refused to follow the earlier opinions of this Court in United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977); United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973) (which involved the same portion of the Cheyenne River Indian Reservation as is here in question); and City of New Town, North Dakota v. United States, 454 F.2d 121 (8th Cir. 1972), believing that these opinions had been undermined by Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). It held that, while Eagle Butte was once part of the Cheyenne River Indian Reservation and thus “Indian country,” the town lost its reservation status when the portion of the original reservation upon which it sits was opened for settlement in 1908.³ Because we remain convinced that Long Elk, New Town and Erickson were correctly decided, and that no prior or subsequent decision of the Supreme Court requires us to abandon our position,⁴ we reverse and remand.

In light of our view that this case is controlled by our earlier opinions, there is no need to again detail the reasoning of those cases here. However, in a thorough and scholarly dissent, Judge McMillian today raises arguments which we must now address.

The issue here in question, like that in our prior cases, is whether a congressional act that opened portions of an Indian reservation terminated Indian jurisdiction over the opened land.⁵ In order for the land to lose its status as “Indian country,” disestablishment must have been effected. It is now clear that in order to terminate the rights of Indians in land (to effect a disestablishment of a reservation),

“[a] congressional determination to terminate [an Indian reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history,” Mattz v. Arnett, [412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973)][.]

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In determining this intent, we are cautioned to follow “the general rule that ‘[djoubtful 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 [, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129] (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367 [, 50 S.Ct. 121, 122, 74 L.Ed. 478] (1930). The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status.

Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 586-587, 97 S.Ct. at 1362-1363 (additional citations omitted).

Certainly, no congressional determination to terminate is expressed in the statute which opened the land in and around Eagle Butte. We must then decide whether the intent to terminate is clear from the surrounding circumstances and legislative history. The dissent finds the necessary intent from several factors, the first of which is the historical context of the legislation. Our colleague reasons that because (1) South Dakota leaders sought to open Indian lands on all of the state’s reservations to settlement with a single-minded ardency, (2) the South Dakota Senators and Congressmen were similarly single-minded in sponsoring all of the bills accomplishing this purpose, and (3) Inspector James McLaughlin conducted negotiations on all the reservations without mention of any reserved jurisdiction for the Indians; therefore, Congress acted with like intent in passing each of the acts. That intent was to diminish the size of South Dakota’s Indian reservations.

In light of Rosebud, we are unwilling to accept this reasoning. We believe that under the decisions of the Supreme Court, it is inappropriate to ascribe the motives of the South Dakota leaders and legislators to Congress as a whole, particularly when the acts in question were over the course of several years. While it may be clear that the South Dakotans sought complete control of as much Indian land as possible and that Inspector McLaughlin aided them in achieving this goal, it is not clear that Congress shared this intent in all, or any, cases.

Rosebud requires that we examine each act of Congress carefully and individually to determine whether there was a clear congressional intent to terminate. Here, a congressional intent to diminish Indian land, rather than to merely open it to settlement, is not clear. In fact, the opposite conclusion is as easily reached. The South Dakota boosters talked about an “opening of the reservation,” dissenting opinion at 327-328 (emphasis added), not diminishing its boundaries. Further, Inspector McLaughlin told the Indians on the Cheyenne River Reservation that “[i]t will be manifestly better for the Indians to have their surplus lands opened to settlement” so that they may “readily acquire white man’s civilization and industrious habits[.]” Dissenting opinion at 328 n. 11 (emphasis added). These are not clear expressions of a congressional determination to terminate.

The second factor considered by our colleague is the language of the statute. While he concedes that “no language of cession” is in the statute, he argues that the historical context in which the act was written makes this omission irrelevant. Although we agree that perhaps too much weight has been given in the past to the use of the word “cede” in these statutes, we are not persuaded that the term’s presence or absence is totally irrelevant.

Nor are we persuaded by our colleague’s argument that this statute was the functional equivalent of those statutes which contain language of cession. He bases this argument on his belief that the statute’s drafters told Congress (and Inspector McLaughlin told the Indians) that settlement statutes achieved the same result with or without cession language.

The first problem with this argument is that Congressman Charles H. Burke told his colleagues simply that this act was “in line with the recent bills which have been passed affecting the sale of Indian reservations,” dissenting opinion at 329, which is hardly an unambiguous statement of intent. Second, because Inspector McLaughlin’s statements were made to Indians in a vastly inferior bargaining position, they were equally ambiguous. He talked about opening the lands for settlement in one breath, and something more than that in the next. Further, even the instructions given to McLaughlin by Indian Commissioner F. E. Leupp are ambiguous. As quoted in the dissenting opinion, those instructions were as follows:

The instructions given you before you conferred with the Rosebud Indians concerning the opening of Tripp County [the 1907 statute] may be followed so far as applicable.

Dissenting opinion at 329-330 (emphasis added, footnote deleted).

In light of these instructions and the history of relations between the Bureau of Indian Affairs and the Indians, we would be reluctant to hold that McLaughlin was necessarily following clearly expressed congressional intent.

The dissent also argues that weight should be given to the provisions of the statute with respect to school lands and intoxicating beverages. Certainly, some weight should be given to the school argument, but there was a similar provision in ' the act considered in Long Elk and we held it was of minimal importance in light of the entire record. United States v. Long Elk, supra at 1038-1039. Very little weight can be given to the liquor argument. As the government correctly points out, the Indians specifically requested a 1910 amendment to the Act which made federal liquor laws applicable to all reservation lands held by non-Indians, whether those lands were opened to settlement by the 1908 Act or not.

A fourth factor cited by our colleague as being important is the legislative history. Again, the dissent refers to McLaughlin’s meetings with the Indians, Leupp’s instructions to McLaughlin, and the South Dakota congressional delegation’s statements on the issue. No reference is made to any new quotation from the Congressional Record. We are left then with the ambiguous statements previously discussed.

The fifth factor discussed was whether an agreement between the government and the Indians existed which indicated a congressional intent to diminish the reservation. The dissent concedes there was no written or oral agreement to indicate a contemporaneous understanding. However, it professes to find support for its view in two facts: McLaughlin reported to his superiors that “[t]he general sentiment of the Indians in council with me * * * was in favor of the relinquishment,” dissenting opinion at 337, and the South Dakota congressional delegation reported similarly to Congress. We are unwilling to find a clear congressional intent from these obviously self-serving and after-the-fact statements.

The final factor discussed by our colleague as indicating congressional intent is the subsequent jurisdictional treatment of the settlement portion of the reservation. In our view, this history can be read in about any way the reader likes. Simply stated, South Dakota has, at times, asserted criminal jurisdiction over this and other reservations and, at times, it has not. We acquiesced in the exercise until Judge Stephenson carefully examined the matter in Erickson in 1973, and Judge Bright reexamined it in Long Elk in 1977. Both judges held the exercise was improper because the reservations had not been diminished. We adhere to their decisions and to our opinion in New Town. These opinions not only have the virtue of clearly delineating the lines of authority in the lands in question, but they are consistent with decisions of the Supreme Court that diminishment of a reservation should only be found where the intent of Congress for such diminishment is clear and unambiguous.

The District Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

1 . The Honorable Andrew A. Bogue, United States District Judge for the District of South Dakota.

2 . Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. § 1153 (emphasis added).

Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151.

3 . United States v. Juvenile, 453 F.Supp. 1171, 1201 (D.S.D.1978).

For the sake of clarity, we note that the question whether the boundaries of an Indian reservation, as drawn when the reservation was established, are redrawn after part, of that reservation has been opened for settlement, has been expressed in several different ways by various courts. The process has been called disestablishment (referring to the disestablishment of the original reservation boundaries); diminishment (referring to a diminishing or shrinking of the original boundaries); termination of reservation status (if the original boundaries are redrawn, the reservation status of the land is no longer within the boundaries and thus is terminated); and a change of boundaries.

4 . Indeed, United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973), was cited with approval in Mattz v. Arnett, 412 U.S. 481, 505 n. 23, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973).

5 . We note that the dissent takes a narrow view of the effect of this decision. Our colleague argues that “[a]ccess to federal benefits and programs by Indians living in the opened portion is not affected by [our] decision.” Nevertheless, had the dissenting opinion been adopted, then some Indians may have become subject to state laws and regulations and could possibly have lost some control over the lands and resources within the reservation’s boundary.