## Facts

- The Fort Laramie Treaty of 1868 established Sioux reservation lands for the Sioux’s “absolute and undisturbed use and occupation,” barring unauthorized non-Indian presence.
- Federal legislation later created the Cheyenne River Reservation while preserving treaty rights not inconsistent with subsequent statutes.
- The Flood Control Act of 1944 authorized the Oahe Dam and reservoir project and provided that reservoir lands “shall be open to public use generally” for recreation, subject to federal rules.
- The Cheyenne River Act of 1954 implemented the taking for the project: the Tribe conveyed 104,420 acres of former trust land; the United States also acquired about 18,000 acres of former fee land within the reservation.
- Section 10 of the Cheyenne River Act reserved to tribal members a “right of free access” to the taken lands, including hunting and fishing, “subject … to regulations governing the corresponding use by other United States citizens.”
- For decades, the Tribe enforced its game and fish code broadly, while South Dakota generally enforced state hunting and fishing laws against non-Indians.
- After negotiations over honoring state licenses failed, the Tribe announced it would no longer recognize state hunting licenses for the taken lands.
- South Dakota sued tribal officials seeking to enjoin the Tribe from regulating non-Indians’ hunting and fishing on the taken lands and other nontrust lands within the reservation.
- The district court held § 10 abrogated the Tribe’s exclusive use of the former trust lands and that Congress had not delegated to the Tribe jurisdiction over nonmember hunting and fishing on the taken lands; it entered a permanent injunction.
- The Eighth Circuit held the Tribe retained regulatory authority over non-Indian hunting and fishing on the 104,420 acres of former trust land, but applied Montana’s general limitation to the former fee lands.

## Issues

1. Whether federal statutes authorizing and implementing the Oahe project abrogated the Tribe’s treaty-based authority to regulate non-Indian hunting and fishing on the 104,420 acres of former trust land taken for the reservoir.
2. Whether the Tribe retained authority to regulate non-Indian hunting and fishing on the approximately 18,000 acres of former fee land acquired for the project.

## Decision

- The Supreme Court reversed the Eighth Circuit (7–2).
- Congress’s taking of the lands for a federal flood-control and recreation project and the requirement that the lands be open to public use abrogated the Tribe’s treaty-based right, as applied to those lands, to regulate non-Indian hunting and fishing.
- The taking “destroyed the Tribe’s power to exclude” non-Indians from the project lands, and tribal regulatory authority over nonmembers that depended on exclusion was correspondingly diminished.
- Section 10’s “free access” language preserved individual use privileges for tribal members and did not “expressly reestablish or delegate” to the Tribe regulatory jurisdiction over nonmembers.
- Because Congress did not re-delegate such authority after the taking, the Tribe lacked jurisdiction to regulate non-Indian hunting and fishing on both the former trust lands and the former fee lands within the federal project area.

## Legal Principles

- Tribal authority to regulate nonmembers on tribal lands commonly derives from the power to exclude; when federal action eliminates exclusion and dedicates land to general public use, associated tribal regulatory authority over nonmembers may be removed.
- Treaty rights can be abrogated when Congress’s intent is sufficiently clear from statutory structure and purpose, including where statutory public-use mandates conflict with treaty-based exclusivity.
- A statutory reservation of tribal members’ access or use rights does not, without an express delegation, preserve or restore tribal civil regulatory jurisdiction over nonmembers on federally controlled lands.
- Under Montana, tribes generally lack civil regulatory authority over nonmember activities on non-Indian lands within a reservation absent recognized exceptions; federal project lands opened to the public may be treated as outside the Tribe’s exclusive territorial control for jurisdictional purposes.

## Conclusion

The Court held that Congress’s acquisition of reservation lands for the Oahe reservoir and its mandate that those lands be open to the public abrogated treaty-based exclusivity and eliminated the Tribe’s power to regulate non-Indian hunting and fishing on the taken lands, absent an express congressional re-delegation of that authority.


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