South Dakota v. Bourland

No. 91-2051

Argued March 2, 1993

Decided June 14, 1993

508 U.S. 679

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus



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 [508 U.S. 680] Congress' intent to divest the Tribe of its treaty

right to do so.  As for the 18,000 acres of former fee lands, the court

held that Montana v. United States, 450 U.S. 544, and Brendale v.

Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408,

controlled, and therefore that the Tribe's regulatory authority was

divested unless one of the Montana exceptions was met.



Held:  Congress, in the Flood Control and Cheyenne River Acts, abrogated

the Tribe's rights under the Fort Laramie Treaty to regulate non-Indian

hunting and fishing on lands taken by the United States for construction

of the Oahe Dam and Reservoir.



(a) Congress has the power to abrogate Indians' treaty rights, provided

that its intent is clearly expressed.  The Tribe's original treaty right

to exclude non-Indians from reservation lands (implicit in its right of

"absolute and undisturbed use and occupation"), and its incidental right

to regulate non-Indian use of these lands were eliminated when Congress,

pursuant to the Cheyenne River and Flood Control Acts, took the lands

and opened them for the use of the general public.  See Montana v.

United States, supra; Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, supra.  Section 4 of the Flood Control Act opened

the water project lands for "recreational purposes," which includes

hunting and fishing.  The Cheyenne River Act declared that the sum paid

by the Government to the Tribe for the 104,420 acres "shall be in final

and complete settlement of all [of the Tribe's] claims, rights, and

demands."  Had Congress intended to grant the Tribe the right to

regulate non-Indian hunting and fishing, it would have done so by an

explicit statutory command, as it did with other rights in  10 of the

Cheyenne River Act.  And since Congress gave the Army Corps of Engineers

regulatory control over the area, it is irrelevant whether respondents

claim the right to exclude nonmembers or only the right to prevent

nonmembers from hunting or fishing without tribal licenses.  Montana

cannot be distinguished from this case on the ground that the purpose of

the transfers in the two cases differ, because it is a transfer's effect

on preexisting tribal rights, not congressional purpose, that is the

relevant factor.  Moreover, Congress' explicit reservation of certain

rights in the taken area does not operate as an implicit reservation of

all former rights.  See United States v. Dion, 476 U.S. 734.



(b) The alternative arguments -- that the money appropriated in the

Cheyenne River Act did not include compensation for the Tribe's loss of

licensing revenue, that general principles of "inherent sovereignty"

enable the Tribe to regulate non-Indian [508 U.S. 681] hunting and

fishing in the area, and that Army Corps regulations permit the Tribe to

regulate non-Indian hunting and fishing -- do not undercut this

statutory analysis.



949 F.2d 984 (CA8 1991), reversed and remanded.



THOMAS, J., delivered the opinion of the Court, in which REHNQUIST,

C.J., and WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. 

BLACKMUN, J., filed a dissenting opinion, in which SOUTER, J., joined,

post, THOMAS, J., lead opinion



JUSTICE THOMAS delivered the opinion of the Court.



In this case, we consider whether the Cheyenne River Sioux Tribe may

regulate hunting and fishing by non-Indians on lands and overlying

waters located within the Tribe's reservation [508 U.S. 682] but

acquired by the United States for the operation of the Oahe Dam and

Reservoir. I



In 1868, the Fort Laramie Treaty, 15 Stat. 635, established the Great

Sioux Reservation, which comprised most of what is now western South

Dakota and part of North Dakota.  Article II of the treaty provided that

the reservation was to be held for the "absolute and undisturbed use and

occupation" of Sioux Tribes, and that no non-Indians (except authorized

government agents) would "ever be permitted to pass over, settle upon,

or reside in" the Great Sioux Reservation.  Id. at 636.  The Act of Mar.

2, 1889, ch. 405, 25 Stat. 888, removed a substantial amount of land

from the reservation and divided the remaining territory into several

reservations, including the Cheyenne River Reservation, which is located

in north-central South Dakota.  The 1889 Act preserved those rights of

the Sioux under the Fort Laramie Treaty that were "not in conflict" with

the newly enacted statute.   19, 25 Stat. 896.  The land designated for

the Cheyenne River Reservation was held in trust by the United States

for the benefit of the Tribe.  949 F.2d 984, 987 (CA8 1991).



The 1889 Act also authorized the President to allot parcels of land

within the reservation to individual Indians.   8, 25 Stat. 890.  Some

of these allotted lands were subsequently acquired by persons not

members of the Cheyenne River Sioux Tribe.  Non-Indians also acquired

fee title to some of the unallotted and "surplus" lands on the

reservation pursuant to the General Allotment Act of 1887, ch. 119, 24

Stat. 388, and the Act of May 29, 1908, ch. 218, 35 Stat. 460.  The

General Allotment Act allowed surplus lands to be sold to non-Indians;

the Act of 1908 authorized the Secretary of the Interior to open for

non-Indian settlement more than 1.6 million acres previously held in

trust by the United States.  These enactments vastly reduced the amount

of [508 U.S. 683] reservation land held in trust by the United States

for the Tribe and its members.  Today trust lands comprise less than 50%

of the reservation.  App. 64.



After severe floods devastated the lower Missouri River basin in 1943

and 1944, Congress passed the Flood Control Act of 1944, ch. 665, 58

Stat. 887.  This Act authorized the establishment of a comprehensive

flood control plan along the Missouri River, which serves as the eastern

border of the Cheyenne River Reservation.  The Act also directed the

Army Chief of Engineers to "construct, maintain, and operate public park

and recreational facilities in reservoir areas," and provided that the

"reservoirs shall be open to public use generally," subject to "such

rules and regulations as the Secretary of War may deem necessary."   4,

58 Stat. 889-890.  Seven subsequent Acts of Congress authorized limited

takings of Indian lands for hydroelectric and flood control dams on the

Missouri River in both North and South Dakota.  See Lower Brule Sioux

Tribe v. South Dakota, 711 F.2d 809, 813, n. 1 (CA8 1983), cert. denied,

464 U.S. 1042 (1984).  One of the largest of these takings involved the

Oahe Dam and Reservoir Project, for which Congress required the Cheyenne

River Sioux Tribe to relinquish 104,420 acres of its trust lands,

including roughly 2,000 acres of land underlying the Missouri River. 

The Tribe's agreement to "convey to the United States all tribal,

allotted, assigned, and inherited lands or interests" needed for the

project is memorialized in the Cheyenne River Act of Sept. 3, 1954, 68

Stat. 1191.  [508 U.S. 684] Pursuant to the Flood Control Act, the

United States also acquired for the Oahe Dam and Reservoir Project an

additional 18,000 acres that were owned in fee by non-Indians.



Although the Tribe conveyed all interests in the 104,420 acres of former

trust lands to the United States, the Cheyenne River Act reserved to the

Tribe or tribal members certain rights respecting the use of these

lands.  Section 6 reserved "mineral rights" to the Tribe or individual

tribal landowners, "subject to all reasonable regulations, which may be

imposed by the [Army's] Chief of Engineers."  Id. at 1193.  Section 7

gave tribal members the right "without charge to cut and remove all

timber and to salvage . . . improvements" until the dam area was

impounded.  Id. at 1192.  Section 9 allowed tribal members to continue

residing on the taken land until closure of the dam's gates . Id. at

1192-1193.  Section 10 provided that the Tribe would have the right to

"graze stock" on the taken lands, and that: [The] Tribal Council and the

members of said Indian Tribe shall have, without cost, the right of free

access to the shoreline of the reservoir including the right to hunt and

fish in and on the aforesaid shoreline and reservoir, subject, however,

to regulations governing the corresponding use by other citizens of the

United States. Id. at 1193 (emphasis added). [508 U.S. 685]



Before this dispute arose, both the Tribe and the State of South Dakota

enforced their respective game and fish regulations in the taken area. 

The Tribe enforced its regulations against all violators; the State

limited its enforcement to non-Indians.  In 1988, following a dispute

between the State and the tribal respondents regarding the 1988 deer

hunting season, the Tribe announced that it would no longer recognize

state hunting licenses, and that hunters within the reservation would be

"subject to prosecution in tribal court" unless licensed by the Tribe. 

App. 58.  In response, the State filed this action against the Chairman

of the Cheyenne River Sioux Tribe and the Director of Cheyenne River

Sioux Tribe Game, Fish and Parks.  In its complaint, the State sought to

enjoin the Tribe from excluding non-Indians from hunting on non-trust

lands within the reservation.  In the alternative, the State sought a

declaration that the federal takings of tribal lands for the Oahe Dam

and Reservoir had reduced the Tribe's authority by withdrawing these

lands from the reservation.  Id. at 39-40 (Second Amended Complaint). 

The District Court concluded that the Cheyenne River Act "did not

disestablish the Missouri River boundary of the Cheyenne River

Reservation."  Id. at 103.  Nevertheless, relying on Montana v. United

States, 450 U.S. 544 (1981), the District Court held that  10 of the

Cheyenne River Act clearly abrogated the Tribe's right to exclusive use

and possession of the former trust lands.  App. 125.  The court further

found that "Congress has not expressly delegated to the Tribe hunting

and fishing jurisdiction over nonmembers" on the taken lands.  Id. at

149.  The District Court permanently [508 U.S. 686] enjoined the Tribe

and its members from exerting such authority.



The Court of Appeals affirmed in part, reversed in part, and remanded. 

949 F.2d 984 (CA8 1991).  The court distinguished between the 104,420

acres of former trust lands acquired pursuant to the Cheyenne River Act

and the 18,000 acres of former non-Indian fee lands acquired pursuant to

the Flood Control Act.  As to the former trust lands, the court held

that the Tribe had authority to regulate non-Indian hunting and fishing

because the Cheyenne River Act did not clearly reveal Congress' intent

to divest the Tribe of its treaty right to do so.  As to the 18,000

acres of former fee lands, however, the court found that Montana v.

United States and Brendale v. Confederated Tribes and Bands of Yakima

Nation, 492 U.S. 408 (1989), controlled.  Assuming the 18,000 acres had

previously been held in fee by non-Indians pursuant to one of the

Allotment Acts, the Court of Appeals noted that: Since Montana held that

tribes have been divested of their regulatory authority over non-Indians

hunting and fishing on land held in fee by non-Indians pursuant to an

[508 U.S. 687] allotment act, the lack of a grant of such power requires

us to conclude that the Tribe does not possess such authority, unless

one of the Montana exceptions is met. 949 F.2d at 995.



The Eighth Circuit therefore remanded the case for a determination of

whether the Tribe could regulate non-Indian hunting and fishing on the

former fee lands pursuant to one of the exceptions to the general rule

that an Indian tribe's inherent sovereign powers do not extend to

non-Indian activity.  We granted certiorari, 506 U.S. 813 (1992), and

now reverse. II



Congress has the power to abrogate Indians' treaty rights, see, e.g.,

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), though we usually

insist that Congress clearly express its intent to do so.  See Menominee

Tribe of Indians v. United States, 391 U.S. 404, (1968); United States

v. Dion, 476 U.S. 734, 738 (1986).  See also County of Yakima v. Yakima

Indian Nation, 502 U.S. 251, 269 (1992) ("`statutes are to be construed

liberally in favor of the Indians, with ambiguous provisions interpreted

to their benefit'") (citations omitted).  Our reading of the relevant

statutes persuades us that Congress has abrogated the Tribe's rights

under the Fort Laramie Treaty to regulate hunting and fishing by

non-Indians in the area taken for the Oahe Dam and Reservoir Project.



The Fort Laramie Treaty granted to the Cheyenne River Sioux Tribe the

unqualified right of "absolute and undisturbed [508 U.S. 688] use and

occupation" of their reservation lands.  15 Stat. 636.  We have

interpreted identical language in a parallel treaty between the United

States and the Crow Tribe as embracing the implicit "power to exclude

others" from the reservation, and thereby "arguably conferr[ing] upon

the Tribe the authority to control fishing and hunting on those lands." 

Montana v. United States supra, 450 U.S. at (construing the second Fort

Laramie Treaty, 15 Stat. 649) (1868).  Thus, we may conclude that,

pursuant to its original treaty with the United States, the Cheyenne

River Tribe possessed both the greater power to exclude non-Indians

from, and arguably the lesser-included, incidental power to regulate

non-Indian use of, the lands later taken for the Oahe Dam and Reservoir

Project.



Like this case, Montana concerned an Indian tribe's power to regulate

non-Indian hunting and fishing on lands located within a reservation but

no longer owned by the tribe or its members.  Under the General

Allotment Act of 1887, ch. 119, 24 Stat. 388, as amended, 25 U.S.C.  332

et seq., and the Crow Allotment Act of 1920, ch. 224, 41 Stat. 751,

Congress had provided for certain Crow lands to be conveyed in fee to

non-Indians for homesteading.  We held that, because the tribe thereby

lost the right of absolute use and occupation of lands so conveyed, the

tribe no longer had the incidental power to regulate the use of the

lands by non-Indians.  See 450 U.S. at 559.  Similarly, six members of

this Court, in Brendale v. Confederated Tribes, determined that, at

least with regard to the "open" portion of the Yakima Reservation, the

Yakima tribe had lost the authority to zone lands that had come to be

owned in fee by non-Indians.  492 U.S. at (opinion of WHITE, J.); id. at

(opinion of STEVENS, J.).  Because significant portions of that part of

the reservation had been allotted under the General Allotment Act and

had passed to non-Indians, those Justices concluded that the treaty's

"exclusive use and benefit" provision was inapplicable to those lands,

and therefore could not confer [508 U.S. 689] tribal authority to

regulate the conduct of non-Indians there.  Id. at 422; id. at 445.



Montana and Brendale establish that, when an Indian tribe conveys

ownership of its tribal lands to non-Indians, it loses any former right

of absolute and exclusive use and occupation of the conveyed lands.  The

abrogation of this greater right, at least in the context of the type of

area at issue in this case, implies the loss of regulatory jurisdiction

over the use of the land by others.  In taking tribal trust lands and

other reservation lands for the Oahe Dam and Reservoir Project, and

broadly opening up those lands for public use, Congress, through the

Flood Control and Cheyenne River Acts eliminated the Tribe's power to

exclude non-Indians from these lands, and with that the incidental

regulatory jurisdiction formerly enjoyed by the Tribe.



The Flood Control Act authorized the construction, management, and

operation of public recreational facilities on the lands taken for the

Oahe Reservoir.   4, 58 Stat. 889-890, as amended, 16 U.S.C.  460d. 

Section 4 of the Act provides that "all such projects shall be open to

public use generally" for various recreational purposes, . . . when such

use is determined by the Secretary of the Army not to be contrary to the

public interest, all under such rules and regulations as the Secretary

of the Army may deem necessary. Section 4 further mandates "ready access

to and exit from such water areas . . . for general public use."  Thus,

the clear effect of the Flood Control Act is to open the lands taken for

the Oahe Dam and Reservoir project for the general recreational use of

the public.  Because hunting and fishing are "recreational purposes,"

the Flood Control Act affirmatively allows non-Indians to hunt and fish

on such lands, subject to federal [508 U.S. 690] regulation.  The Act

also clearly prohibits any "use" of the lands "which is inconsistent

with the laws for the protection of fish and game of the State in which

such area is situated" or which is determined by the Secretary of the

Army to be "contrary to the public interest."  Ibid.



If the Flood Control Act leaves any doubt whether the Tribe retains its

original treaty right to regulate non-Indian hunting and fishing on

lands taken for federal water projects, the Cheyenne River Act

extinguishes all such doubt.  Section 2 of that Act declares that the

sum paid by the Government to the Tribe for former trust lands taken for

the Oahe Dam and Reservoir Project, "shall be in final and complete

settlement of all claims, rights, and demands" of the Tribe or its

allottees.  68 Stat. 1191.  This provision reliably indicates that the

Government and the Tribe understood the Act to embody the full terms of

their Agreement, including the various rights that the Tribe and its

members would continue to enjoy after conveying the 104,420 acres to the

Government.{10}  The Tribe's  10 "right of free access to the shoreline

of the reservoir includ[es] the right to hunt and fish," but is "subject

. . . to regulations governing the corresponding use by other citizens

of the United States. "  Id. at 1193 (emphasis added).  If Congress had

intended by this provision to grant the Tribe the additional right to

regulate hunting and fishing, it would have done so by a similarly

explicit statutory command.  The rights granted the Tribe in  10 stand

in contrast to the expansive treaty right originally granted to the

Tribe of "absolute and undisturbed use," which does encompass the right

to exclude and to regulate.  See Montana, 450 U.S. at 554, 558. [508

U.S. 691]



At oral argument, respondents insisted that they did not claim the right

to exclude nonmembers from the taken area, but only the right to prevent

nonmembers from hunting or fishing without appropriate tribal licenses. 

See Tr. of Oral Arg. 27-28, 3031.  It is ultimately irrelevant whether

respondents claim a power to exclude.{11}  Congress gave the Army Corps

of Engineers, not the Tribe, regulatory control over the taken area. 

And as we have noted, an abrogated treaty right of unimpeded use and

occupation of lands "can no longer serve as the basis for tribal

exercise of the lesser included power" to regulate.  Brendale, 492 U.S.

at 424.  In the absence of applicable Army Corps regulations allowing

the Tribe to assert regulatory jurisdiction over the Project lands, we

conclude that the Flood Control Act's open-access mandate and the

Cheyenne River Act's relevant provisions affirmatively abrogate the

Tribe's authority to regulate entry onto or use of these lands.{12}



The Court of Appeals found Montana inapposite with respect to the

104,420 acres of former trust lands because [t]he purpose of the

[Cheyenne River] Act, unlike that of the Allotment Act at issue in

Montana, was not the destruction of tribal self-government, but was only

to acquire the property rights necessary to construct and operate the

Oahe Dam and Reservoir. 949 F.2d at 993.  To focus on purpose is to

misread Montana.  In Montana, the Court did refer to the purpose of the

Allotment Acts and discussed the legislative debates surrounding the

allotment policy, as well as Congress' eventual repudiation of the

policy in 1934 by the Indian [508 U.S. 692] Reorganization Act, 45 Stat.

984, 25 U.S.C.  461 et seq. 450 U.S. at n. 9.  However, at the end of

this discussion the Court unequivocally stated that what is relevant . .

. is the effect of the land alienation occasioned by that policy on

Indian treaty rights tied to Indian use and occupation of reservation

land. 450 U.S. at 560, n. 9 (emphasis added).  Thus, regardless of

whether land is conveyed pursuant to an Act of Congress for homesteading

or for flood control purposes, when Congress has broadly opened up such

land to non-Indians, the effect of the transfer is the destruction of

preexisting Indian rights to regulatory control.{13}  Although Montana

involved lands conveyed in fee to non-Indians within the Crow

Reservation, Montana's framework for examining the "effect of the land

alienation" is applicable to the federal takings in this case.



The takings at issue here do differ from the conveyances of fee title in

Montana, however, in that the terms of the [508 U.S. 693] Cheyenne River

Act preserve certain limited land use rights belonging to the Tribe.  It

could be argued that, by reserving these rights, Congress preserved the

right to regulate use of the land by non-Indians.  Thus, the Court of

Appeals treated the mineral, grazing, and timber rights retained by the

Tribe under the Cheyenne River Act as evidence that the taking "was not

a simple conveyance of land and all attendant interests in the land,"

949 F.2d at 993, and the court accordingly concluded that Congress had

not abrogated the Tribe's preexisting regulatory authority.  We

disagree. Congress' explicit reservation of certain rights in the taken

area does not operate as an implicit reservation of all former rights.



Our decision in United States v. Dion, 476 U.S. 734 (1986), supports

this conclusion.  In Dion, we considered whether an Indian who takes an

eagle on tribal land violates the Eagle Protection Act.{14}  We demanded

clear evidence that Congress actually considered the conflict between

its intended action, on the one hand, and Indian treaty rights, on the

other, and chose to resolve that conflict by abrogating the treaty. Id.

at 740.  The Eagle Protection Act contains an exemption allowing the

Secretary of the Interior to permit the taking of an eagle "for the

religious purposes of Indian tribes" and for other narrow purposes found

to be compatible with the goal of eagle preservation.  16 U.S.C.  668a. 

We found this exemption "difficult to explain except as a reflection of

an understanding that the statute otherwise bans the taking of eagles by

Indians."  476 U.S. at 740.  Likewise, we cannot explain  10 of the

Cheyenne River Act and  4 of the Flood Control Act except as indications

that Congress sought to divest the Tribe of its right to "absolute and

undisturbed use and occupation" of the taken area.  When Congress

reserves limited rights to a tribe or its members, [508 U.S. 694] the

very presence of such a limited reservation of rights suggests that the

Indians would otherwise be treated like the public at large. III



Respondents and their amici raise several alternative arguments, none of

which undercuts our statutory analysis.  Respondents argue, for example,

that their right to regulate hunting and fishing in the taken area was

not abrogated, because the $10,644,014 appropriated in the Cheyenne

River Act did not include compensation for the Tribe's loss of licensing

revenue.  This sum, respondents argue, did include payment for, inter

alia, the loss of grazing permit revenues and the destruction of

wildlife, wild fruit, and other natural resources, as those losses were

itemized in the House Report on the Cheyenne River Act.  See Brief for

Respondents 9 (citing H.R.Rep. No. 2484, 83d Cong., 2d Sess. (1954)),

and Brief for Respondents 36.  To hold their regulatory authority

divested, respondents contend, would imply that Congress breached its

duty to compensate the Tribe for all taken resources.  The Act itself,

however, does not itemize the losses covered by the compensation, but

rather plainly states that the appropriated funds constitute a "final

and complete settlement of all claims, rights, and demands" of the Tribe

arising out of the Oahe Dam and Reservoir Project.   2, 68 Stat. 1191. 

Given the express text of the Act, we will not conclude that the Act

reserved to the Tribe the right to regulate hunting and fishing simply

because the legislative history does not include an itemized amount for

the Tribe's loss of revenue from licensing those activities.



General principles of "inherent sovereignty" also do not enable the

Tribe to regulate non-Indian hunting and fishing in the taken area. 

Although Indian tribes retain inherent authority to punish members who

violate tribal law, to regulate tribal membership, and to conduct

internal tribal relations, United States v. Wheeler, 435 U.S. 313, 326

(1978), the exercise of tribal power beyond what is necessary to protect

[508 U.S. 695] tribal self-government or to control internal relations

is inconsistent with the dependent status of the tribes, and so cannot

survive without express congressional delegation, Montana, 450 U.S. at

564.  Having concluded that Congress clearly abrogated the Tribe's

preexisting regulatory control over non-Indian hunting and fishing, we

find no evidence in the relevant treaties or statutes that Congress

intended to allow the Tribe to assert regulatory jurisdiction over these

lands pursuant to inherent sovereignty.{15}



The question remains, however, whether the Tribe may invoke other

potential sources of tribal jurisdiction over non-Indians on these

lands.  Montana discussed two exceptions to "the general proposition

that the inherent sovereign powers of an Indian tribe do not extend to

the activities of nonmembers of the tribe."  Id. at 565.  First, a tribe

may license or otherwise regulate activities of nonmembers who enter

"consensual relationships" with the tribe or its members through

contracts, leases, or other commercial dealings.  Ibid.  Second, a tribe

may . . . retain inherent power to exercise civil authority over the

conduct of non-Indians on fee lands within its reservation when that

conduct threatens or has some direct effect on the political integrity,

the economic security, or the health or welfare of the tribe. Id. at

566.  The District Court made extensive findings that neither of these

exceptions applies to either the former trust lands or the former fee

lands.  See App. 142-149.  And although the Court of Appeals instructed

the District Court [508 U.S. 696] to undertake a new analysis of the

Montana exceptions on remand as to the 18,000 acres, it did not pass

upon the District Court's previous findings regarding the taken area as

a whole.  See South Dakota v. Bourland, 949 F.2d at 995.  Thus, we leave

this to be resolved on remand.



Finally, respondents contend that Army Corps regulations permit the

Tribe to regulate non-Indian hunting and fishing.  Although Congress

abrogated the Tribe's right to regulatory control in the taken area

through the Flood Control and Cheyenne River Acts, it gave primary

regulatory authority over the water project lands to the Army Corps of

Engineers.  16 U.S.C.  460d.  See 36 CFR  327.1(a) (1992).  The Corps

has authority to promulgate regulations "not inconsistent with . . .

treaties and Federal laws and regulations" concerning "the rights of

Indian Nations."   327.1(f).  The Corps permits "[h]unting, fishing and

trapping . . . except in areas where prohibited by the District

Engineer."   327.8.  This regulation provides that [a]ll Federal, state

and local laws governing these activities apply on project lands and

waters, as regulated by authorized enforcement officials. Ibid.

(emphasis added).  See also  327.26.  Respondents argue that these

regulations not only allow for tribal regulation of hunting and fishing,

they affirmatively establish the primacy of tribal treaty rights over

both public use rights and state and federal regulatory interests. Brief

for Respondents 33 (emphasis in original) (footnote omitted).  Insisting

that "tribal" law is a subset of "local" law, respondents contend that

the Tribe's hunting and fishing laws apply to all who pass through the

taken area.  Id. at 33, n. 39.



Respondents did not rely on the Army Corps' regulations in the

proceedings below.  And although the United States, as amicus curiae,

asserted at oral argument that  327.8 leaves all preexisting State,

local and tribal hunting and fishing regulations in effect on project

lands, see Tr. of Oral Arg. 50, it did not even mention the Army Corps

regulation [508 U.S. 697] in its brief.  Moreover, it is inconsistent

with evidence in the record that the Corps in fact believed that

jurisdiction over non-Indian hunting and fishing on water project lands

is a matter of state law.{16}  See App. 288, 284.  Thus, we find this

argument undeveloped.  Under these circumstances, we decline to defer to

the Government's litigating position. IV



"[T]reaty rights with respect to reservation lands must be read in light

of the subsequent alienation of those lands."  Montana, 450 U.S. at 561.

 In this case, the United States took former trust lands pursuant to the

Flood Control Act, which mandated that all water project lands be open

for the general public's use and recreational enjoyment.  The Cheyenne

River Act reserved some of the Tribe's original treaty rights in the

former trust lands (including the right to hunt and fish), but not the

right to exert regulatory control.  These statutes clearly abrogated the

Tribe's "absolute and undisturbed use and occupation" of these tribal

lands, 15 Stat. 636, and thereby deprived the Tribe of the power to

license non-Indian use of the lands.  Accordingly, the judgment of the

Court of Appeals is reversed, and the case [508 U.S. 698] is remanded

for further proceedings consistent with this opinion.



It is so ordered. BLACKMUN, J., dissenting



JUSTICE BLACKMUN, with whom JUSTICE SOUTER, joins, dissenting.



The land at issue in this case is part of the Cheyenne River Sioux

Reservation.  The United States did not take this land with the purpose

of destroying tribal government or even with the purpose of limiting

tribal authority.  It simply wished to build a dam.  The Tribe's

authority to regulate hunting and fishing on the taken area is

consistent with the uses to which Congress has put the land, and, in my

view, that authority must be understood to continue until Congress

clearly decides to end it.



The majority's analysis focuses on the Tribe's authority to regulate

hunting and fishing under the Fort Laramie Treaty of 1868, 15 Stat. 635,

see ante at  with barely a nod acknowledging that the Tribe might retain

such authority as an aspect of its inherent sovereignty, see ante at  

Yet it is a fundamental principle of federal Indian law that Indian

tribes possess "`inherent powers of a limited sovereignty which has

never been extinguished.'"  United States v. Wheeler, 435 U.S. 313, 322

(1978) (emphasis omitted), quoting F. Cohen, Handbook of Federal Indian

Law 122 (1942).  This Court has recognized that the inherent sovereignty

of Indian tribes extends "`over both their members and their

territory.'"  435 U.S. at 323 (emphasis added), quoting United States v.

Mazurie, 419 U.S. 544, 557 (1975).  Inherent tribal sovereignty exists

only at the sufferance of Congress and is subject to complete

defeasance.  But until [508 U.S. 699] Congress acts, the tribes retain

their existing sovereign powers.  In sum, Indian tribes still possess

those aspects of sovereignty not withdrawn by treaty or statute, or by

implication as a necessary result of their dependent status. 435 U.S. at

323 (emphasis added).  This Court has found implicit divestiture of

inherent sovereignty necessary only where the exercise of tribal

sovereignty would be inconsistent with the overriding interests of the

National Government, as when the tribes seek to engage in foreign

relations, alienate their lands to non-Indians without federal consent,

or prosecute non-Indians in tribal courts which do not accord the full

protections of the Bill of Rights. Washington v. Confederated Tribes of

Colville Reservation, 447 U.S. 134, (1980).



The Fort Laramie Treaty confirmed the Tribe's sovereignty over the land

in question in the most sweeping terms by providing  that it be "set

apart for the absolute and undisturbed use and occupation of the

[Sioux]."  15 Stat. 636.  The majority acknowledges that this provision

arguably conferred "`upon the Tribe the authority to control hunting and

fishing on those lands.'"  Ante at 688, quoting Montana v. United

States, 450 U.S. 544, (1981).  Because "treaties should be construed

liberally in favor of the Indians," [508 U.S. 700] County of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 247 (1985), the majority is right to

proceed on the assumption that authority to control hunting and fishing

is included in the Fort Laramie Treaty.



The question, then, is whether Congress intended to abrogate the Tribe's

right to regulate non-Indian hunting and fishing on the taken area -- a

right flowing from its original sovereign power that was expressly

confirmed by treaty.  This Court does not lightly impute such an intent

to Congress.  There must be clear and convincing evidence that Congress

actually considered the conflict between its intended action, on the one

hand, and Indian treaty rights, on the other, and chose to resolve that

conflict by abrogating the treaty. United States v. Dion, 476 U.S. 734,

740 (1986); see also Wheeler, 435 U.S. at 323 (implicit withdrawal of

inherent sovereignty only where "necessary"); Colville, 447 U.S.  at

(same).



The majority, however, points not even to a scrap of evidence that

Congress actually considered the possibility that, by taking the land in

question, it would deprive the Tribe of its authority to regulate

non-Indian hunting and fishing on that land.  Instead, it finds

Congress' intent implicit in the fact that Congress deprived the Tribe

of its right to exclusive use of the land, that Congress gave the Army

Corps of Engineers authority to regulate public access to the land, and

that Congress failed explicitly to reserve to the Tribe the right to

regulate non-Indian hunting and fishing.  Despite its citation of Dion,

supra, Menominee Tribe v. United States, 391 U.S. 404 (1968), and County

of Yakima v. Yakima Indian Nation, 502 U.S. 251 (1992), see ante at 687,

the county adopts precisely the sort of reasoning-by-implication that

those cases reject.



The majority supposes that the Tribe's right to regulate non-Indian

hunting and fishing is incidental to, and dependent on, its treaty right

to exclusive use of the area, and that the Tribe's right to regulate was

therefore lost when its right to [508 U.S. 701] exclusive use was

abrogated.  See ante at 689.  This reasoning fails on two counts. 

First, treaties must . . . be construed not according to the technical

meaning of its words to learned lawyers, but in the sense in which they

would naturally be understood by the Indians. Washington v. Washington

Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 676 (1979),

quoting Jones v. Meehan, 175 U.S. 1, 11 (1899).  I find it implausible

that the Tribe here would have thought every right subsumed in the Fort

Laramie Treaty's sweeping language to be defeated the moment they lost

the right to exclusive use of their land.  Second, the majority's myopic

focus on the Treaty ignores the fact that this Treaty merely confirmed

the Tribe's preexisting sovereignty over the reservation land.  Even on

the assumption that the Tribe's treaty-based right to regulate hunting

and fishing by non-Indians was lost with the Tribe's power to exclude

non-Indians, its inherent authority to regulate such hunting and fishing

continued.



The majority's reliance on Montana and Brendale in this regard is

misplaced.  In those cases, the reservation land at issue had been

conveyed in fee to non-Indians pursuant to the Indian General Allotment

Act of 1887, 24 Stat. 388, which aimed at the eventual elimination of

reservations and the assimilation of Indian peoples.  See Montana, 450

U.S. at 559, n. 9.  In Montana, the Court concluded: It defies common

sense to suppose that Congress would intend that non-Indians purchasing

allotted lands would become subject to tribal jurisdiction when an

avowed purpose of the allotment policy was the ultimate destruction of

tribal government. Id. at 560, n. 9.  See also Brendale v. Confederated

Yakima Indian Nation, 492 U.S. 408, 423 (1989) (opinion of JUSTICE

WHITE).  The majority finds the purpose for which the land is alienated

irrelevant, relying on Montana's statement that "what is relevant . . .

is the effect of the land alienation occasioned by that policy on Indian

treaty rights tied to Indian use and occupation of reservation land."

[508 U.S. 702] Ante at 692, quoting Montana, 450 U.S. at 560, n. 9

(emphasis added by Court).  This statement, however, simply responded to

an argument that "[t]he policy of allotment and sale of surplus

reservation land was . . . repudiated in 1934."  Ibid.  Read in context,

the language on which the majority relies in no way rejects Congress'

purpose as irrelevant, but rather specifies which congressional purpose

is relevant -- i.e., its purpose at the time Indian land is alienated.



In this case, as the majority acknowledges, see ante at  Congress'

purpose was simply to build a dam.  Congress also provided that the

taken area should be open to non-Indians for "recreational purposes." 

See ante at 689.  But these uses of the land are perfectly consistent

with continued tribal authority to regulate hunting and fishing by

non-Indians.  To say that non-Indians may hunt and fish in the taken

area is not to say that they may do so free of tribal regulation, any

more than it is to say that they may do so free of state or federal

regulation.  Even if the Tribe lacks the power to exclude, it may

sanction with fines and other civil penalties those who violate its

regulations.



Apparently the majority also believes that tribal authority to regulate

hunting and fishing is inconsistent with the fact that Congress has

given the Army Corps of Engineers authority to promulgate regulations

for use of the area by the general public.  See ante at 691, 692, and n.

13.  I see no inconsistency.  The Corps in fact has decided not to

promulgate its own hunting and fishing regulations and, instead, has

provided that "[a]ll Federal, state and local laws governing [hunting,

fishing, and trapping] also apply on project  lands and waters."  36 CFR

 327.8 (1992); see Tr. of Oral Arg. 50.  This regulation clearly

envisions a system of concurrent jurisdiction over hunting and fishing

in the taken area.  The majority offers no explanation why concurrent

jurisdiction suddenly becomes untenable when the local authority is an

Indian tribe.  To the extent that such a system proves unworkable, the

regulations themselves provide that tribal [508 U.S. 703] rights

prevail, for part 327 applies to "lands and waters which are subject to

treaties and Federal laws and regulations concerning the rights of

Indian Nations" only to the extent that part 327 is "not inconsistent

with such treaties and Federal laws and regulations."   326.1(f).



In its search for a statement from Congress abrogating the Tribe's right

to regulate non-Indian hunting and fishing in the taken area, the

majority turns to a provision in the Cheyenne River Act that the

compensation paid for the taken area "`shall be in final and complete

settlement of all claims, rights, and demands' of the tribe."  Ante at

690, quoting Pub.L. 776,  II, 68 Stat. 1191.  But this provision simply

makes clear that Congress intended no further compensation for the

rights it took from the tribe.  It does not address the question of

which rights Congress intended to take or, more specifically, whether

Congress intended to take the Tribe's right to regulate hunting and

fishing by non-Indians.  The majority also relies on the fact that  X of

the Act expressly reserved to the Tribe the right to hunt and fish, but

not the right to regulate hunting and fishing.  See ante at 690.  To

imply an intent to abrogate Indian rights from such congressional

silence once again ignores the principles that "Congress' intention to

abrogate Indian treaty rights be clear and plain," Dion, 476 U.S. at

738, and that "`statutes are to be construed liberally in favor of the

Indians, with ambiguous provisions interpreted in their benefit.'" 

County of Yakima, 502 U.S.  at 269, quoting Montana v. Blackfeet Tribe,

471 U.S. 759, 766 (1985).  Congress' failure to address the subject of

the Tribe's regulatory authority over hunting and fishing means that the

Tribe's authority survives, and not the reverse. [508 U.S. 704]



It is some small consolation that the Court's decision permits the

Federal Government to remedy this situation with a more explicit

regulation authorizing the Tribe to regulate hunting and fishing in the

taken area.  See ante at 691.  I regret, however, that the Court's

decision makes such action necessary. Footnotes THOMAS, J., lead opinion

(Footnotes)



1. Congress authorized the Departments of the Army and the Interior to

negotiate contracts with the Cheyenne River Tribe and the Standing Rock

Sioux Tribe for land needed for the Oahe Dam and Reservoir.  See ch.

1120, 64 Stat. 1093 (1950).



2. The Tribe received a total of $10,644.014 in exchange for the 104,420

acres of land and interests therein taken by the United States.  This

amount included compensation for the loss of wildlife, the loss of

revenue from grazing permits, the costs of negotiating the agreement,

and the costs of "complete rehabilitation" of all resident members and

the restoration of tribal life.  See  2, 5, and 13, 68 Stat. 1191-1194.



3. The record does not reflect how these lands had come to be owned by

non-Indians.



4. The question on which we granted certiorari assumes the United States

acquired these lands in fee, and the District Court referred to the

"transfer of fee ownership from the Tribe to the United States."  App.

125.  The Court of Appeals, however, referred to the lands as "neither

non-Indian-owned fee land nor trust land."  949 F.2d 984, 990 (CA8

1991).  Because the nature of the Government's title is not relevant to

our analysis, we may assume that the United States owns the 104,420

acres in fee.



5. The Cheyenne River Act became effective upon confirmation and

acceptance in writing by "three-quarters of the adult Indians of the

Cheyenne River Reservation in South Dakota."  68 Stat. 1191.  Of the

Indians eligible to vote, 75.35% approved the Act; of those who actually

voted, 92% voted for approval.  See App. 266.



6. Although the District Court ruled on the issue of the Tribe's

regulatory jurisdiction over Indians who are not members of the Cheyenne

River Sioux, the Court of Appeals vacated that portion of the opinion. 

It noted that the issue of tribal jurisdiction over nonmember Indians

was neither pled nor tried; the complaint was limited to the question of

jurisdiction over non-Indians. 949 F.2d at 990.  The State did not raise

this issue in its petition for certiorari, and hence the only question

before us is whether the Tribe may regulate non-Indians who hunt and

fish in the taken area.



7. The District Court found no evidence that the Tribe has ever imposed

criminal sanctions on a nonmember who violated tribal hunting or fishing

ordinances.  App. 87.  Throughout this litigation, respondents have

disavowed any criminal jurisdiction over nonmembers, asserting instead

that the sanctions they seek to impose on unlicensed hunters and

fishermen are purely civil in nature.  Id. at 85.  The State, however,

has contended that these tribal regulations will be enforced through

criminal sanctions.  The District Court dismissed the State's request

for a declaration that the Tribe has "no jurisdiction" to arrest and try

non-Indians on the reservation, on the ground that the "purported

controversy lacks sufficient immediacy and reality."  Id. at 88

(internal quotation marks omitted).  In any event, we have previously

held that "the inherent sovereignty of the Indian tribes does not extend

to criminal jurisdiction over non-Indians who commit crimes on the

reservation."  Duro v. Reina, 495 U.S. 676, 684 (1990).  See also

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978).



8. Although respondents did not cross-petition for review of this

portion of the Court or Appeals' decision, the State argues that the

Court of Appeals' general approach in distinguishing between the 18,000

acres of non-Indian fee lands and the 104,420 acres of former trust

lands was "without basis in this Court's rulings," and thus "wrong and

unworkable."  Brief for Petitioner 48.  We read the question presented

as fairly encompassing the issue of the Tribe's regulatory authority

over both the 18,000 acres of former non-Indian fee lands and the

104,420 acres of former trust lands.



9. The District Court found that the taken area is not a "closed" or

pristine area, and the Court of Appeals did not disturb that finding. 

949 F.2d at 995.  We agree that the area at issue here has been broadly

opened to the public.  Thus, we need not reach the issue of a tribe's

regulatory authority in other contexts.



10. The dissent apparently finds ambiguity in this provision, on the

ground that it "does not address the question of which rights Congress

intended to take."  Post at 703.  The self-evident answer is that, when

Congress used the term "all claims, rights, and demands" of the Tribe,

68 Stat. 1191, it meant all claims, rights, and demands.



11. Certainly, the power to regulate is of diminished practical use if

it does not include the power to exclude:  regulatory authority goes

hand in hand with the power to exclude.  See Brendale v. Confederated

Tribes and Bands of Yakima Nation, 492 U.S. 408, (1989) (opinion of

WHITE, J.).



12. We do not address whether South Dakota has regulatory control over

hunting and fishing in the taken area.  In its declaratory judgment

action, the State sought only a judicial determination regarding the

Tribe's claim to regulatory jurisdiction.



13. The dissent argues that our reliance on Montana v. United States,

450 U.S. 544 (1981) and Brendale is misplaced, and insists that, in

Montana, we did not reject the relevance of Congressional purpose, but

merely "specifie[d] which congressional purpose is relevant -- i.e., its

purpose at the time Indian land is alienated."  Post at 702.  We are

unable to wring such meaning out of Montana's simple statement that

"what is relevant . . . is the effect of the land alienation."  450 U.S.

at 560, n. 9 (emphasis added).



Moreover, even when the dissent engages in the congressional purpose

inquiry that Montana eschews, it errs in stating that Congress "simply

wished to build a dam."  Post at 698.  In fact, as the dissent

acknowledges, post at 702, Congress in the Flood Control Act also

mandated that the water projects serve as recreational facilities for

the general public for activities such as "boating, swimming, bathing,

[and] fishing," subject to such "rules and regulations as the Secretary

of the Army may deem necessary."  16 U.S.C.  460d.  Contrary to the

dissent's reasoning, see post at 700, that Congress vested the Secretary

of the Army with broad regulatory authority over the management of these

lands is explicit evidence that Congress "considered the possibility

that, by taking the land . . . , it would deprive the Tribe of its

authority to regulate non-Indian hunting and fishing on that land." 

Ibid.



14. The Eagle Protection Act makes it a federal crime to "take, possess,

sell, purchase, [or] barter . . . any bald eagle . . . or any golden

eagle."  16 U.S.C.  668(a).



15. The dissent's complaint that we give "barely a nod" to the Tribe's

inherent sovereignty argument, post at 701, is simply another

manifestation of its disagreement with Montana, which announced the

general proposition that the inherent sovereign powers of an Indian

tribe do not extend to the activities of nonmembers of the tribe, 450

U.S. at 565.  While the dissent refers to our "myopic focus," post at

701, on the Tribe's prior treaty right to "absolute and undisturbed use

and occupation" of the taken area, it shuts both eyes to the reality

that, after Montana, tribal sovereignty over nonmembers "cannot survive

without express congressional delegation," 450 U.S. at 564, and is

therefore not inherent.



16. The dissent simply assumes that the phrase "local laws" in 36 CFR 

327.8 (1992) includes "tribal" laws.  Post at   However, an Army Corps

regulation outlining the procedures for evaluating Department of the

Army water use permit applications indicates that the Army Corps, in

fact, distinguishes between the terms "tribal" and "local."  See 33 CFR 

320.4(j)(2) ("[t]he primary responsibility for determining zoning and

land use matters rests with state, local and tribal governments")

(emphasis added).  Furthermore, we are bewildered that the dissent cites

 327.1(f) for the proposition that "the regulations themselves provide

that tribal rights prevail."  Post at   Section 327.1(f) provides that

the regulations in part 327 apply "to the extent that [they] are not

inconsistent with . . . treaties and Federal laws and regulations." 

This is simply to say that the regulations do not purport to abrogate

treaty rights -- not a startling proposition.  The regulation says

nothing about whether the Flood Control Act or Cheyenne River Act has

already terminated those rights. BLACKMUN, J., dissenting (Footnotes)



1. The District Court found that conveyance of the taken area to the

United States did not diminish the reservation, see App. 96-104, and

South Dakota did not appeal that determination.  See also South Dakota

v. Bourland, 949 F.2d 984, 990 (CA8 1991) ("[I]t seems clear . . that

the Cheyenne River Act did not disestablish the boundaries of the

Reservation").



2. Neither South Dakota nor the majority is able to identify any

overriding federal interest that would justify the implicit divestiture

of the Tribe's authority to regulate non-Indian hunting and fishing.  In

rejecting the Tribe's inherent sovereignty argument, the majority relies

on the suggestion in Montana v. United States, 450 U.S. 544 (1981), that

the "exercise of tribal power beyond what is necessary to protect tribal

self-government or to control internal relations is inconsistent with

the dependent status of the tribes, and so cannot survive without

express congressional delegation." Ante at  quoting Montana, 450 U.S. 

at 564.  I already have had occasion to explain that this passage in

Montana is contrary to 150 years of Indian law jurisprudence, and is not

supported by the cases on which it relied.  See Brendale v. Confederated

Yakima Indian Nation, 492 U.S. 408, 450-456 (1989) (opinion concurring

and dissenting).  There is no need to repeat that explanation here.



3. The majority's assertion that this Court's decision in United States

v. Dion, 476 U.S. 734 (1986), supports its conclusion here, see ante at

693, is difficult to fathom.  In Dion, this Court found that an

exemption in the Eagle Protection Act permitting the taking of eagles

for religious purposes was "difficult to explain except as a reflection

of an understanding that the statute otherwise bans the taking of eagles

by Indians."  The Court correctly notes that  X of the Cheyenne River

Act and  4 of the Flood Control Act cannot be understood except as

indications that Congress intended to divest the Tribe of its right to

exclusive use of the taken area.  See ante at 693.  It does not follow,

however, that Congress intended to divest the Tribe of its right to

regulate the hunting and fishing of non-Indians in the taken area.  As

already noted, continued tribal authority over hunting and fishing is

consistent with public access.  And it certainly does not follow from

Dion that [w]hen Congress reserves limited rights to a tribe or its

members, the very presence of such a limited reservation of rights

suggests that the Indians would otherwise be treated like the public at

large. Ante at   Indeed, Dion stands for the directly opposite

presumption that implicit abrogation of treaty rights is disfavored, and

that "clear evidence" is required that Congress actually considered the

conflict between its intended action, on the one hand, and Indian treaty

rights, on the other, and chose to resolve that conflict by abrogating

the treaty. 476 U.S. at 740.

