Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Loken, Chief Judge.
Before LOKEN, Chief Judge,*fn1 BYE, Circuit Judge, and MILLER,*fn2 District 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 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.
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 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.*fn3 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 "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.*fn4
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.
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.
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.*fn5
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.*fn6 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, ...