Abrogation of Treaty Rights to Regulate Non-Indian Hunting and Fishing: Analysis of South Dakota v. Bourland

Introduction

South Dakota v. Bourland, 508 U.S. 679 (1993), is a pivotal Supreme Court case that addresses the extent of tribal sovereignty, particularly concerning the regulation of hunting and fishing by non-Indians on lands taken by the United States for federal projects. The case revolves around the Cheyenne River Sioux Tribe's assertion of regulatory authority over non-Indian hunters and fishers on lands acquired for the Oahe Dam and Reservoir Project. South Dakota sought to enjoin the Tribe from excluding non-Indians from these activities, leading to a legal confrontation that elucidates the boundaries of congressional power in abrogating treaty rights.

Summary of the Judgment

The Supreme Court held that Congress, through the Flood Control Act of 1944 and the subsequent Cheyenne River Act, unequivocally abrogated the Cheyenne River Sioux Tribe's treaty rights under the Fort Laramie Treaty of 1868. Specifically, the Court determined that these legislative acts removed the Tribe's authority to regulate non-Indian hunting and fishing on lands appropriated for the Oahe Dam and Reservoir Project. The decision emphasized that Congress possesses the explicit authority to eliminate tribal rights, provided its intent is clearly expressed, as it was in this case.

Analysis

Precedents Cited

The Court's decision in South Dakota v. Bourland builds upon several key precedents that delineate the scope of tribal sovereignty and congressional authority in abrogating treaty rights:

MONTANA v. UNITED STATES, 450 U.S. 544 (1981): Established that when congressional intent to abrogate tribal rights is clear, tribal regulatory authority over non-Indians is lost.
Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408 (1989): Affirmed that tribes lose regulatory authority over non-Indians on lands conveyed to non-Indians unless specific exceptions apply.
UNITED STATES v. DION, 476 U.S. 734 (1986): Highlighted that congressional intent must be clear and convincing when abrogating tribal rights.
Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978): Determined that tribes do not possess inherent criminal jurisdiction over non-Indians.
DURO v. REINA, 495 U.S. 676 (1990): Reinforced that tribal sovereignty does not extend to non-Indians unless expressly granted by Congress.

Legal Reasoning

The Court employed a stringent approach to determining whether congressional intent to abrogate treaty rights was present. The primary considerations included:

Clear Expression of Intent: The Court emphasized that Congress must clearly express its intent to abrogate treaty rights. In this case, both the Flood Control Act and the Cheyenne River Act provided explicit language indicating that the lands taken were to be used for public recreational purposes, thereby opening them to general public use.
Effect of Land Alienation: Drawing from Montana, the Court focused on the effect of the land's alienation on the Tribe's treaty rights, rather than the purpose behind the alienation.
Reservation of Rights: While the Cheyenne River Act reserved certain rights to the Tribe, the Court concluded that such reservations did not implicitly preserve all former rights, particularly regulatory authority over non-Indians.
Regulatory Authority Attribution: The Court determined that since Congress vested regulatory control in the Army Corps of Engineers and did not reserve regulatory authority to the Tribe, the Tribe could not independently assert such authority.

Additionally, the Court dismissed alternative arguments presented by the respondents, including claims related to inherent sovereignty and compensation for lost licensing revenues, reinforcing that the statutory language provided a definitive abrogation of the Tribe's regulatory rights.

Impact

The South Dakota v. Bourland decision has far-reaching implications for tribal sovereignty and the regulation of activities on lands taken by the federal government for public projects:

Clarification of Congressional Power: The ruling underscores the extent of congressional authority to abrogate tribal treaty rights, emphasizing the necessity for clear legislative intent.
Limitation on Tribal Sovereignty: Tribes may find their regulatory powers over non-Indians significantly constrained on lands affected by federal projects, even if portions of those lands are reserved for tribal use.
Precedent for Future Land Take Cases: The decision serves as a guiding framework for assessing similar cases where tribal rights might be overridden by federal legislation.
Interplay Between Federal Agencies and Tribal Authorities: By vesting regulatory control in entities like the Army Corps of Engineers, Congress can effectively limit tribal regulatory authority without explicit mention.

Moreover, the decision impacts how tribes negotiate future land use agreements and underscores the importance of explicitly securing regulatory rights in legislative terms.

Complex Concepts Simplified

Abrogation

Abrogation refers to the cancellation or repeal of a legal right or provision. In this context, it involves the federal government eliminating the tribal rights established under a treaty through subsequent legislation.

Inherent Sovereignty

Inherent Sovereignty denotes the natural authority that tribes possess by virtue of being distinct political communities. However, this sovereignty is limited and can be overridden by federal laws enacted with clear intent.

Fee vs. Trust Lands

Fee Land is owned outright by an individual or entity, including non-Indians, while Trust Land is held by the federal government on behalf of a tribe. The distinction affects who has regulatory authority over the land.

Regulatory Authority

Regulatory Authority refers to the power to create and enforce rules within a certain jurisdiction. In this case, it pertains to the Tribe's ability to regulate hunting and fishing activities.

Conclusion

The Supreme Court's decision in South Dakota v. Bourland reinforces the principle that while tribes possess inherent sovereignty, this sovereignty is not absolute and can be curtailed by clear congressional mandate. By explicitly abrogating the Cheyenne River Sioux Tribe's treaty rights to regulate non-Indian hunting and fishing on lands appropriated for federal projects, Congress demonstrated its plenary power over Indian affairs. This case serves as a critical reminder of the delicate balance between tribal autonomy and federal authority, shaping the legal landscape for future interactions between tribes and governmental entities.