                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3671
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Chad Everett Bear, Sr.

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                           Submitted: October 19, 2016
                            Filed: December 28, 2016
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
                             ____________

RILEY, Chief Judge.

      Chad Bear, Sr., sexually abused a young child in and around New Town, North
Dakota. He argues he should not have been tried and convicted in federal court
because New Town is not “Indian country.” See 18 U.S.C. § 1153(a) (establishing
federal criminal jurisdiction over “[a]ny Indian who commits [certain crimes] within
the Indian country”); id. § 1151(a) (defining “Indian country” to include “all land
within the limits of any Indian reservation under the jurisdiction of the United States
Government”).1 Bear’s theory is that the land New Town sits on was carved out of
the Fort Berthold Reservation, and thus came under the primary jurisdiction of the
state of North Dakota when Congress opened it to homesteading in 1910. See Act of
June 1, 1910, ch. 264, 36 Stat. 455, 455 (“authoriz[ing] and direct[ing]” the Secretary
of the Interior “to sell and dispose of” certain reservation land); see also Act of Mar.
3, 1891, ch. 543, § 23, 26 Stat. 989, 1032-35 (setting the reservation’s original
boundaries). Bear is not the first to take this position.

       Almost forty-five years ago, in City of New Town v. United States, we rejected
an essentially identical argument and determined “the boundaries of the Fort Berthold
Reservation are those specified in the Act of March 3, 1891”—encompassing New
Town—“and . . . the Act of June 1, 1910, and subsequent Acts did not alter those
boundaries.” City of New Town v. United States, 454 F.2d 121, 127 (8th Cir. 1972)
(citation omitted). Bear insists we must reconsider the issue because a later decision
from the Supreme Court, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998),
undermined our reasoning. See, e.g., Patterson v. Tenet Healthcare, Inc., 113 F.3d
832, 838 (8th Cir. 1997) (“Although one panel of this court ordinarily cannot overrule
another panel, this rule does not apply when the earlier panel decision is cast into
doubt by a decision of the Supreme Court.”). According to Bear, New Town rested
exclusively on a “saving clause” in the 1910 statute and Yankton Sioux rejected such
an analysis, so the entire holding of New Town collapses. He misreads both cases.




      1
       Bear does not dispute he is an “Indian” for purposes of § 1153(a). And the
crimes he was convicted of, namely aggravated sexual abuse of a child younger than
twelve, see 18 U.S.C. § 2241(c), and abusive sexual contact with a child younger than
twelve, see id. § 2244(a)(5), are covered by the statute because they are “felon[ies]
under chapter 109A [of Title 18 of the U.S. Code].” Id. § 1153(a).

                                          -2-
       First, though we did treat the saving clause2 as significant in New Town, we
also considered other parts of the statute, as well as its historical context, and did not
give the saving provision controlling weight. See New Town, 454 F.2d at 125-26.
And Yankton Sioux nowhere “flatly rejected this Court’s analysis regarding the
saving clause . . . now at issue,” as Bear claims. Yankton Sioux reversed a decision
of this court that cited New Town for the unremarkable point that a saving clause
“should be given due weight” in determining the effect of a statute opening part of
a different reservation. Yankton Sioux Tribe v. S. Mo. Waste Mgmt. Dist., 99 F.3d
1439, 1448 (8th Cir. 1996). The Supreme Court did not question that general
proposition, just how the panel applied it. See Yankton Sioux, 522 U.S. at 345-49.
In the Supreme Court’s view, because the statute’s operative provisions created “a
‘nearly conclusive,’ or ‘almost insurmountable,’ presumption of diminishment,” the
saving clause did not justify “eviscerat[ing]” the rest of the law. Id. at 344, 346 (first
quoting Hagen v. Utah, 510 U.S. 399, 411 (1994); and then quoting Solem v. Bartlett,
465 U.S. 463, 470 (1984)). There is no suggestion in the Court’s context-specific
holding that saving clauses can never be considered in deciding such issues, nor that
they might not help tip the balance the other way when the rest of the statute is more
equivocal.3

      2
        The relevant language was: “nothing in this Act shall be construed to deprive
said Indians of Fort Berthold Indian Reservation of any benefits to which they are
entitled under existing treaties or agreement not inconsistent with the provisions of
this Act.” Act of June 1, 1910, § 14, 36 Stat. at 459.
      3
        The key language in the statute at issue in Yankton Sioux was: “‘The Yankton
tribe of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the
United States all their claim, right, title, and interest in and to [the land].’” Yankton
Sioux, 522 U.S. at 337 n.1 (quoting Act of Aug. 15, 1894, ch. 290, § 12, 28 Stat. 286,
314). By contrast, the analogous provision here is: “That the Secretary of the Interior
be, and he is hereby, authorized and directed . . . to sell and dispose of, as hereinafter
provided, all the [land].” Act of June 1, 1910, 36 Stat. at 455. It is well established
that while some such surplus land acts “‘freed . . . land of its reservation status and
thereby diminished the reservation boundaries,’” others “‘simply offered non-Indians

                                           -3-
       Anyway, as the government points out, even if the Court’s discounting of the
saving clause in Yankton Sioux could be understood to cast a shadow on New
Town’s reasoning, we reached the same conclusion in Duncan Energy Co. v. Three
Affiliated Tribes of the Fort Berthold Reservation without ever mentioning the saving
clause. See Duncan Energy Co. v. Three Affiliated Tribes of the Fort Berthold
Reservation, 27 F.3d 1294, 1296-97 (8th Cir. 1994) (addressing challenges on the
merits and concluding New Town was rightly decided). So regardless of whether
New Town is still good law after Yankton Sioux, Duncan Energy unquestionably is.4

      In short, our law is clear: New Town was just as much part of the Fort Berthold
Reservation when Bear committed his crimes as it was in 1891. Bear was therefore
properly subject to federal prosecution and the district court5 was right to keep Bear’s
case. See 18 U.S.C. § 3231 (federal criminal jurisdiction). We affirm Bear’s
convictions and sentence. See 28 U.S.C. § 1291 (appellate jurisdiction).
                        ______________________________




the opportunity to purchase land within established reservation boundaries.’”
Yankton Sioux, 522 U.S. at 343 (quoting Solem, 465 U.S. at 467, 470).
      4
        Duncan Energy also forecloses Bear’s suggestion that New Town’s
precedential value was already “eviscerated” by the Supreme Court’s decision in
Rosebud Sioux Tribe v. Kniep, 430 U.S. 584 (1977), long before Yankton Sioux. We
specifically addressed that possibility and decided Rosebud Sioux, which dealt with
another surplus land act, was “not . . . instructive” on the interpretation of this
particular statute. Duncan Energy, 27 F.3d at 1297; see also United States v.
Standish, 3 F.3d 1207, 1209 (8th Cir. 1993) (rejecting an argument that “New Town
is no longer controlling,” sixteen years after Rosebud Sioux).
      5
       The Honorable Daniel L. Hovland became Chief Judge of the United States
District Court for the District of North Dakota on November 1, 2016. The Honorable
Ralph R. Erickson, United States District Judge for the District of North Dakota, tried
Bear’s case and adopted Chief Judge Hovland’s earlier ruling.

                                          -4-
