                                   No. 96-1692



Lower Brule Sioux Tribe;    *
                                       *
                   Appellant;          *
                                       *
         v.                            *   Appeal from the United States
                                       *   District Court for the
State of South Dakota; John            *   District of South Dakota.
Cooper, Secretary, Division            *
of Game, Fish & Parks for the          *
State of South Dakota;                 *
                                       *
                   Appelles.           *



                      Submitted:      October 24, 1996

                          Filed:    January 9, 1997


Before BOWMAN, HEANEY, and BEAM, Circuit Judges.



 HEANEY, Circuit Judge.


     This case involves a long-standing dispute between the Lower Brule
Sioux Tribe ("Tribe") and the State of South Dakota and the Secretary of
the State Game, Fish & Parks Division ("State") concerning regulatory
jurisdiction over hunting and fishing by nonmembers of the Tribe on
nonmember-owned fee lands and waters and taken areas within the boundaries
of the Lower Brule Sioux Reservation ("Reservation").      The Tribe brought
this action to enjoin the State from enforcing its hunting and fishing laws
over any person within the boundaries of the Reservation.     The Tribe also
sought declaratory relief that the State is barred from exercising any
regulatory authority over hunting or fishing within the Reservation.   Since
this litigation began in 1980, the Supreme Court has handed down several
important decisions relating to
Indian sovereignty and tribal regulatory authority on different land
classifications within Reservation boundries.    Accordingly, the district
court determined that this action is substantially controlled by South
Dakota v. Bourland ("Bourland III"), 508 U.S. 679 (1993), rev'g, 949 F.2d
984 (8th Cir. 1991), Brendale v. Confederated Tribes & Bands of the Yakima
Indian Nation, 492 U.S. 408 (1989) (plurality), and Montana v. United
States, 450 U.S. 544 (1981).      Following this line of authority, the
district court granted the State's motion for summary judgment.    We agree
that this result follows Supreme Court precedent and affirm.


                                     I.


     This case began over sixteen years ago when the Tribe sought to
enjoin the State from enforcing its fish and wildlife regulations on fee
lands and taken lands within the boundaries of the Reservation and to
obtain a declaratory judgment that the Tribe has exclusive regulatory
jurisdiction over hunting and fishing by any person within Reservation
boundaries.   In the first phase of the litigation, the district court
reserved ruling on matters pertaining to fee lands.   With respect to lands
taken by the Army Corps of Engineers for flood control projects at Fort
Randall and Big Bend, the court held that the respective taking acts
diminished the Reservation thereby divesting the Tribe of jurisdiction over
even tribal members on those lands.       Lower Brule Sioux Tribe v. South
Dakota ("Lower Brule I"), 540 F. Supp. 276, 292 (D.S.D. 1982).    Our court
reversed, holding that the Tribe had exclusive jurisdiction to regulate
hunting and fishing by tribal members in the taken areas and remanding for
reconsideration of who has jurisdiction to regulate hunting and fishing by
nonmembers within the Fort Randall and Big Bend taken areas.   Lower Brule
Sioux Tribe v. South Dakota ("Lower Brule II"), 711 F.2d 809, 813, 827 (8th
Cir. 1983).   Before trial, however, the Tribe and the State entered into
a five-year cooperation agreement.   Unfortunately, this agreement was not
renewed; and when it expired on October 24, 1991,




                                     2
the Tribe brought this action to enjoin the State from enforcing its
hunting and fishing laws over any person on fee lands and taken lands
within the boundaries of the Reservation and to bar the State from
attempting to regulate hunting and fishing on those lands in the future.
The district court entered a preliminary injunction against the State on
November 13, 1991, in effect, continuing the terms of the expired five-year
agreement between the parties.    After extensive discovery by both sides,
the State filed a motion for summary judgment on September 11, 1995.     On
February 8, 1996, after the Tribe filed its second response to the motion,
the district court granted the State's motion for summary judgment.   Lower
Brule Sioux Tribe v. South Dakota ("Lower Brule III"), 917 F. Supp. 1434,
1457 (D.S.D. 1996).   Applying the analytical framework of Montana, Bourland
III, and Brendale, the court held (1) Congress has abrogated any treaty
rights that provided the Tribe with the authority to regulate hunting and
fishing by nonmembers on both fee lands and waters and in the taken areas;
(2) the Tribe's inherent sovereignty does not extend to the regulation of
hunting and fishing by nonmembers on fee or taken lands either by virtue
of a consensual relationship with the Tribe or because of a threat to the
political integrity, economic security, or health and welfare of the Tribe;
and (3) the State has exclusive jurisdiction to regulate nonmember hunting
and fishing within both the fee and taken areas at issue.         The Tribe
appeals, arguing both that there are disputed material facts that make
summary judgment inappropriate and that the court erred as a matter of law
in determining that the State has exclusive jurisdiction to regulate
hunting and fishing on non-trust lands within the Reservation.


                                    II.


     To provide some context for this dispute, we begin with a basic
history of the Lower Brule Sioux Reservation.         A more comprehensive
background discussion, with particular detail about




                                     3
the relevant treaties and taking acts, is contained in Lower Brule I, 540
F. Supp. at 278-86.


         The Fort Laramie Treaties of 1851, 11 Stat. 749 (1851), and 1868,
15 Stat 635 (1868), established the boundaries of the Great Sioux Nation.
See United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).              The
Lower Brule Sioux Reservation was established as part of a March 2, 1890
act of Congress that divided the Great Sioux Nation into five smaller ones.
See 25 Stat. 888 (1889).      The Reservation is situated in central South
Dakota   in   northeastern   Lyman   County   and   extends   slightly   into   the
southeastern corner of Stanley County.        The Reservation is bounded on the
northeast and east by the Missouri River.            The original area of the
Reservation, which consisted of 446,500 acres, was twice diminished by
Congress: first by the Act of March 3, 1899, 30 Stat. 1362 (1899), and
second by the Act of April 21, 1906, 34 Stat. 124 (1906).            The present
Reservation consists of approximately 235,800 acres.


      The two classifications of Reservation areas at issue in this
litigation are nonmember-owned fee lands and waters and the areas taken by
the Army Corps of Engineers for two flood control projects.        Approximately
56,634 acres, or roughly one-quarter of the total Reservation land, is
deeded land held in fee by either members or nonmembers of the Tribe.
Under the Indian General Allotment Act, 24 Stat. 388 (1887), significant
portions of the Reservation were allotted to individual tribal members as
part of Congress's widespread attempt to disestablish reservations and to
force Indians to assimilate into the dominant white culture modeled on
individual property ownership.       After a period of years during which the
allotments were held in trust, fee patents were issued.         See id. at 398 §
5.   Assisted by legislation aimed at opening the Reservation to non-Indian
development, see, e.g., 30 Stat. 1362 (1899), 34 Stat. 124 (1906),
piecemeal sales of fee lands up to the time of the Indian Reorganization
Act of 1934 created what is often called a "checkerboard" map of trust
lands, tribal lands, allotted




                                        4
lands, and fee lands.      The boundaries between the variously classified
lands are not marked, making it difficult for persons on the Reservation
to determine the ownership status of any given site.


        The other relevant land classification is land taken under the United
States' power of eminent domain for construction of two projects as part
of a comprehensive flood control plan for the Missouri River as authorized
by the Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (1944).
Two taking Acts established the territory now at issue:     the Fort Randall
Taking Act, Pub. L. No. 85-923, 72 Stat. 1773 (1958), and the Big Bend
Taking Act, Pub. L. No. 87-734, 76 Stat. 698 (1962).       Collectively, the
projects required the taking of 22,296 acres of Indian lands.       Under the
terms of the Fort Randall Taking Act, the Tribe maintained the right to
graze stock on the land and a right of free access for members to hunt and
fish.    According to the Big Bend Taking Act, the United States acquired the
"entire interest" of the Tribe, including gravel and any interest the Tribe
may have had within the bed of the Missouri River; the Tribe maintained the
right to graze on the land and free access for hunting and fishing.


                                     III.


        We review the district court's grant of summary judgment de novo,
applying the same standard as the district court.      Lebus v. Northwestern
Mut. Life Ins. Co., 55 F.3d 1374, 1376 (8th Cir. 1995).     Summary judgment
is appropriate if the movant demonstrates that there is no genuine issue
of material fact and that the movant is entitled to judgment as a matter
of law.    Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).   As explained
by the district court:

        [T]he facts and inferences from those facts are viewed in
        the light most favorable to the nonmoving party and the
        burden is placed on the moving party to establish both




                                       5
        the absence of a genuine issue of material fact and that
        such party is entitled to judgment as a matter of law.
        Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v.
        Zenith Radio Corp., 475 U.S. 574, 586-90 (1986). Once
        the moving party has met this burden, the nonmoving party
        may not rest on the allegations in the pleadings, but by
        affidavit or other evidence must set forth specific facts
        showing that a genuine issue of material fact exists.

Id.


        We must examine the evidence in the context of the legal issues
involved.      Thus, it is not enough that there are factual disputes between
the parties, "the dispute[s] must be outcome determinative under prevailing
law."       Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1992).        We agree
with the district court that under existing precedent summary judgment is
appropriate to resolve this dispute.             A careful review of the record,
including the Tribe's response to the State's motion for summary judgment
and response to the State's statement of material facts, reveals that to
the extent that the parties disagree on factual matters, none of the
disputes is outcome determinative once put in legal context.1             Thus, we
agree that the record presents no genuine issues of disputed material
facts.


                                          IV.


        Tribal jurisdiction to regulate hunting and fishing by nonmembers on
nonmember-owned fee lands and taken lands derives from either of two
sources:      treaty rights or inherent tribal sovereignty.         See Montana v.
United States, 450 U.S. 544, 556-58 (1981).             We examine each source of
jurisdiction       separately   as   it       applies   to   the   different   land
classifications.




        1
      The Tribe raises numerous factual disputes which it believes
should have prevented the district court from issuing summary
judgment. After careful consideration of each of these claims, we
have determined that none are material to the resolution of the
issues presented in this case.

                                          6
A.   Fee Lands and Waters


     1. Treaty Rights


     Consistent with Supreme Court precedent, the district court held that
any right to regulate hunting and fishing by nonmembers on nonmember-owned
fee lands originally obtained by the Tribe under the Fort Laramie Treaty
of 1868 was abrogated by the Indian General Allotment Act of 1887.      Lower
Brule III, 917 F. Supp at 1446.    In 1868, the Fort Laramie Treaty gave the
Tribe the right of "absolute and undisturbed use and occupation" of
Reservation lands.   15 Stat. 636.     This authority to exclude nonmembers
from the land also carried the lesser authority to regulate the activities
of nonmembers to whom the Tribe permitted access.      See Montana, 450 U.S.
at 559; Bourland III, 508 U.S. at 688-89.     Treaty rights obtained by the
Tribe under the Fort Laramie Treaty, however, were abrogated by Congress
with the passage of the General Indian Allotment Act of 1887.      Brendale,
492 U.S. at 425; Montana, 450 U.S. at 559.     As the Court explains:

     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 . . . implies the loss of the regulatory
     jurisdiction over the use of the lands by others.

Bourland III, 508 U.S. at 689.    After the General Indian Allotment Act, the
Tribe no longer retains the exclusive use and benefit of the land, and
Congress did not expressly delegate authority to the Tribe to regulate
nonmember conduct on nonmember-owned fee lands.         Therefore, whatever
regulatory power the Tribe has under the treaty no longer extends to lands
held in fee by nonmembers.




                                      7
     2. Inherent Sovereignty


     Indian tribes have inherent sovereignty independent of treaty rights
and the authority derived from their power to exclude nonmembers from
tribal lands.     Despite their dependence on the United States, tribes
generally retain sovereignty in the form of tribal self-governance and
control over other aspects of tribal internal affairs.    See Montana, 450
U.S. at 564.    A tribe's inherent sovereignty, however, is divested to the
extent that it is inconsistent with the tribes's dependent status, that is,
"to the extent it involves a tribe's 'external relations.'"   Brendale, 492
U.S. at 425-26 (quoting United States v. Wheeler, 435 U.S. 313, 326
(1978)); see also Montana, 450 U.S. at 564 ("[E]xercise 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.").


     In Montana, the Supreme Court recognized two possible exceptions to
the general rule that inherent sovereign powers of an Indian tribe do not
extend to the activities of nonmembers of the tribe.    450 U.S. at 565-66.
First, "[a] tribe may regulate . . . the activities of nonmembers who enter
consensual relationships with the tribe or its members, through commercial
dealing, contracts, leases or other arrangements."     Id. at 565.   Second,
a tribe may regulate conduct that "threatens or has some direct effect on
the political integrity, the economic security, or the health or welfare
of the tribe."    Id. at 566.


     We agree with the district court that the first Montana exception is
inapplicable.     Neither the original title deeds for the lands nor the
purchase of hunting and fishing licenses give rise to the requisite
consensual relationship between the Tribe and nonmembers who hunt and fish
on the fee lands.    See South Dakota v.




                                      8
Bourland ("Bourland IV"), 39 F.3d    868, 869   (8th Cir. 1994); Montana, 450
U.S. at 566.


       The Tribe also argues that the record supports a finding that, under
the second Montana exception, it retains the power to regulate hunting and
fishing by nonmembers on nonmember-owned fee lands because the conduct
affects the Tribe's economic, political, and social welfare.        Specifically,
the Tribe asserts that state regulation will:         (1) deprive the Tribe of
licensing revenues; (2) adversely affect game populations on trust lands;
and (3) cause confusion and discourage the use of the Reservation due to
the complexities of complying with separate laws in adjoining areas.2
While noting that these same factors were present in either or both Montana
and Bourland III and that the adverse impact was insufficient to establish
tribal     jurisdiction,   the   district   court    conducted    the   necessary
"particularized inquiry into the unique facts and circumstances surrounding
the Lower Brule Reservation and the Lower Brule Tribe."          Lower Brule III,
917 F. Supp. at 1447; see also Brendale, 492 U.S. at 428-30.            The court
specifically took into account the Tribe's history, economy, and population
mix.   Lower Brule III, 917 F. Supp. at 1447.


       The court concluded that State regulation of nonmember hunting and
fishing does not threaten the political integrity, economic security, or
health and welfare of the Tribe.     Id. at 1449.3    With


       2
      In its motion opposing summary judgment before the district
court the Tribe additionally argued that it was adversely impacted
by the lost job opportunities for its members who would perform
regulatory functions. The Tribe appears to have abandoned this
argument on appeal. Although we do not specifically address this
issue, we note that our decision would not be altered by the
inclusion of this claim.
       3
      The State asks us to adopt the more stringent standard set
forth in Justice White's plurality opinion in Brendale.          In
Brendale, Justice White wrote that for an Indian tribe to retain
jurisdiction over nonmembers pursuant to the second Montana
exception, "[t]he impact [on tribal interests] must be demonstrably
serious and must imperil the political integrity, the economic
security, or the health and welfare of the tribe." Brendale, 492
U.S. at 431 (emphasis added); see also Bourland IV, 39 F.3d at 870
n.4. As in Bourland IV, we need not determine whether the Brendale

                                       9
respect to licensing fees, the court found that revenue from licensing
accounts for only a small fraction of the dollars spent by hunters and
fishers and that, in light of the economic strength of the Tribe, lost
revenues do not pose a significant threat to the economic security of the
Tribe.    With respect to migrating game populations, the court acknowledged
that wildlife herds migrate throughout the Reservation and that nonmember
hunting    on     nonmember-owned      fee   lands    will   reduce   the    overall     deer
population on tribal land to some extent.             Yet, the court found no evidence
on the record to support a determination that the harvesting of deer on
nonmember fee lands threatened the overall welfare of the Tribe.                         See
Bourland IV, 39 F.3d at 870 (noting that incidents of deer harvesting by
nonmembers are "undeniably vexatious to the individual Indians affected"
but do not amount to a direct threat to the welfare of the Tribe as a
whole).    For example, there is no evidence that a significant number of
tribal members depend on wild game for their sustenance or livelihood.
Finally, the court acknowledged that there are unmarked boundaries between
the various types of Reservation land and that separate laws enforced by
distinct    governments        on   adjoining   lands   can   create       some   confusion.
Nonetheless, the court recognized that the Supreme Court has authorized
exactly    this    kind   of    "checkerboard"       jurisdiction     by    mandating    that
neighboring lands be subject to different regulatory authorities.                       Lower
Brule III, 917 F. Supp. at 1448 (citing Bourland II, 949 F.2d at 996).




plurality opinion modified the second Montana exception.        The
district court explicitly analyzed the Tribe's arguments under the
framework of Montana, avoiding the more stringent arguable
modification in Brendale. Lower Brule III, 917 F. Supp. at 1446.
We do the same.     We note only that affirmance under the less
stringent standard as originally articulated in Montana necessarily
implies a failure to satisfy a more stringent application of the
exception. See Bourland IV, 39 F.3d at 870 n.4.

                                             10
       We hold that the district court did not err in its determination that
the Tribe failed to establish sufficient evidence to prevent summary
judgment on the jurisdictional issue over nonmember-owned fee lands and
waters.   We also find no error in the court's conclusion that no principles
of   federal   Indian   law   preclude   the   State    from   lawfully   exercising
jurisdiction over nonmembers on the fee lands and waters at issue.                We
hasten to add, however, that the Tribe may seek relief in the district
court in the future if circumstances change in kind or degree so as to
directly affect or threaten the political integrity, economic security, or
health and welfare of the Tribe as a whole.            See Bourland IV, 39 F.3d at
871.


B.     Taken Lands


       Also at issue is jurisdiction over hunting and fishing by nonmembers
on lands and waters located in the Fort Randall and Big Bend taken areas
within the boundaries of the Reservation.         The district court held that
Congress's exercise of eminent domain abrogated the Tribe's treaty rights
and that the Tribe's inherent sovereignty does not extend to the regulation
of hunting and fishing by nonmembers in the taken areas.


       As the Supreme Court explains, "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 pre-existing
Indian rights to regulatory control."           Bourland III, 508 U.S. at 692
(footnote omitted).     Thus, it is necessary to look to the language of the
Acts which effectuated the takings.       Section 1 of the Fort Randall Taking
Act, Pub. L. No. 85-923, 72 Stat. 1773, provides that the payments by the
United States to the Lower Brule Sioux Tribe were in "settlement of all
claims, rights, and demands of said tribe."             Section 1 of the Big Bend
Taking Act, Pub. L. No. 87-734, 76 Stat. 698, is almost identical.             Both




                                         11
provisions indicate that there was a mutual understanding between the
United States and the Tribe that the Acts set forth all of the terms of the
transaction and all the rights the Tribe would retain under the agreements.
 Section 5 of the Fort Randall Taking Act explicitly provides that the
Tribe retains two rights, without cost:        first, to graze livestock and,
second, to hunt and fish in the taken area subject to the regulations
governing the corresponding use of the land by other United States
citizens.   Similarly, Section 10 of the Big Bend Taking Act reserves for
the Tribe and its individual members the right to hunt and fish on the
taken area subject to the laws applicable to other citizens doing the same.


     The provisions set out above are almost identical to Sections 2 and
10 of the Cheyenne River Act, 68 Stat. 1191 (1954) (taking land for the
Oahe Dam and Reservoir project in furtherance of the Flood Control Act of
1944), construed by the Supreme Court in Bourland III.         In that case the
Court concluded, "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 [pursuant to the Fort Laramie Treaty of 1868]."         Bourland III,
508 U.S. at 689.    Similarly, the Fort Randall and Big Bend Taking Acts must
be construed to deprive the Tribe of any treaty right to regulate nonmember
hunting and fishing in the taken areas.      Thus, the district court correctly
reached this conclusion.


     The    Tribe   does   not   challenge   the   court's   conclusion   as   to
                                    4
extinguishment of treaty rights         so much as it asserts that only the
federal government, not the State, has jurisdiction to regulate nonmembers'
activities in the taken areas.      It is clear that




     4
      Nor does the Tribe challenge the district court's conclusion
that neither Montana exception is applicable and, therefore, the
Tribe does not have inherent authority to regulate the hunting and
fishing by nonmembers on the taken lands.

                                        12
Congress provided the Army Corps of Engineers with the regulatory control
over the taken areas.      16 U.S.C. § 460d; see also Bourland III, 508 U.S.
at 690.    The district court determined that the Corps has the authority to
relegate partial jurisdiction over the taken areas to the State and that
the Corps has in fact entrusted the State with that regulatory authority.
We   reject    the   Tribe's   arguments   that    Congress   preempted   all   State
jurisdiction and agree with the district court's conclusions.


       It is apparent from the language of the Flood Control Act of 1944
that Congress did not preempt state law.           The Act provides:      "No use of
any area to which [the Flood Control Act] applies shall be permitted which
is inconsistent with the laws for the protection of fish and game of the
State in which such area is situated."          16 U.S.C. § 460d (emphasis added).
Also, both the Fort Randall and Big Bend Taking Acts grant tribal members
permission to hunt and fish within the taken areas, "subject, however, to
regulations governing the corresponding use by other citizens of the United
States."      Fort Randall Taking Act, § 5; Big Bend Taking Act, § 10.           This
language recognizes that other regulations may impact the lands.                 See
Bourland III, 508 U.S. at 691.        In light of the fact that there are no
comprehensive federal hunting and fishing regulations in effect for the
taken areas, we agree with the district court's observation that this
language indicates Congress anticipated that the federal government would
rely heavily on state regulation.


       Moreover, the federal government has consistently expressed the view
that   the State has jurisdiction to regulate hunting and fishing by
nonmembers on the taken lands.       In a March 6, 1976 letter to the Tribe's
Chairman, a Corps engineer stated in relevant part:

       That lands purchased and/or condemned by the United
       States for the Ft. Randall and Big Bend Projects were
       returned to the public domain, and, as such, fall within




                                           13
     the civil and criminal, or legislative jurisdiction of
     the State of South Dakota.

     That the fish and game laws of the State of South Dakota
     are the only such laws that apply to these areas which
     were formerly owned by the Lower Brule Sioux Tribe and
     its members.

(App. of Appellee II at B.7 (Letter from Col. Russell A. Glen, District
Engineer for the Army Corps of Engineers to Tribal Chairman Michael B.
Jandreau)).    Similarly,    in   a   September   15,   1986   letter,   the   Corps
reiterated its position:

     [R]egulation of hunting and fishing on Corps project
     lands in South Dakota is a matter of State law. This was
     clearly the intent of Section 4 of the 1944 Flood Control
     Act . . . . As you know, the Corps has only proprietal
     jurisdiction over its project lands along the mainstem of
     the Missouri River in South Dakota.       Such lands are
     subject to state civil and criminal jurisdiction.

(App. of Appellee II at B.9 (Letter from Col. Steven G. West, District
Engineer for the Army Corp of Engineers to Secretary Jeff Stingley of South
Dakota Fish and Parks)).    The rules and regulations set forth by the Corps
to govern public use of the taken lands and waters likewise provide for
application of state laws.   See, e.g., 36 C.F.R. § 327.8 (1995) (providing
that all federal, state, and local laws pertaining to hunting, fishing, and
trapping apply on project lands); 36 C.F.R. § 327.26 (1995) (similar).            We
agree with the district court that the Army Corps of Engineers has the
authority to delegate regulatory and enforcement responsibilities to the
State.   We also agree that the Corps has clearly manifested its intention
to do so on the projects lands and waters at issue in this case.


                                        V.


     In conclusion, we affirm the district court's holding that the State
has exclusive regulatory jurisdiction over hunting and




                                        14
fishing by nonmembers on both nonmember-owned fee lands and the taken area
within the Reservation.


BEAM, Circuit Judge, concurring and dissenting.


       Judge Heaney has written a very well-reasoned opinion for the court
in    which    I   concur,    except   for   part   IV   A.2.   dealing   with   inherent
sovereignty.       For the reasons I advanced in A-1 Contractors v. Strate, 76
F.3d 930, 941-42 (8th Cir.), cert. granted, 117 U.S. 37 (1996), it is my
view that the Tribe has a “valid tribal interest” in the regulation of
hunting and fishing activities on all lands, whether tribal, member-owned,
or nonmember-owned, within the geographic confines of the reservation.
Thus, the second exception set forth in Montana v. United States, 450 U.S.
544, 566 (1981) - holding that a tribe may regulate, as a sovereign,
conduct       that “threatens or has some direct effect on the political
integrity, the economic security, or the health and welfare of the tribe,”
- requires abatement of South Dakota’s effort to invade tribal territory.


       I believe that the district court (and this court in affirming the
district court) effects an incorrect analysis of the sovereignty issue at
play in this case.      The court says “[w]e hold that the district court did
not err in its determination that the Tribe failed to establish sufficient
evidence [of sovereignty] to prevent summary judgment . . . .”                   Supra at
12.    This is not (or at least should not be) the test.


       “Indian tribes are unique aggregations possessing attributes of
sovereignty over both their members and their territory."                 United States
v. Wheeler, 435 U.S. 313, 323 (1978) (emphasis supplied).                 Until Congress
acts, the Tribe possesses those aspects of sovereignty not withdrawn by
treaty or statute.           Id.   “Tribal authority over the activities of non-
Indians on reservation lands is an important part of tribal sovereignty.”
Iowa Mut. Ins. Co. v.




                                             15
LaPlante, 480 U.S. 9, 18 (1987).   Although speaking specifically   of tribal
court jurisdiction, the Supreme Court noted that,       “[c]ivil jurisdiction
over such activities [of non-Indians on reservation lands] presumptively
lies in the tribal courts unless affirmatively limited by a specific treaty
provision or federal statute.”     Id. (emphasis supplied). “`Because the
Tribe retains all inherent attributes of sovereignty that have not been
divested by the Federal Government, the proper inference from silence . .
. is that the sovereign power . . . remains intact.’”    Id. (quoting Merrion
v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n.14 (1982)).


     South Dakota asserts its own sovereign power when it regulates
hunting and fishing outside of the reservation but within the borders of
the State.   The sovereignty of the Tribe over the lands of the reservation
when such sovereignty is unencumbered by treaty or federal law, as here,
provides equal, if not superior, authority to the Lower Brule government.
And the State's sovereignty, it seems to me, in no way attenuates,
displaces, or makes subservient the territorial sovereignty of an Indian
tribe on reservation lands that also lie within the boundaries of South
Dakota -- at least such sovereign power as is necessary to regulate fishing
and wildlife activity.      Indeed, we recognize in this very case the
authority of the Tribe to regulate these activities on parts of the
reservation and its long-standing use of this authority.         Accordingly,
there is, in my view, a presumption of Lower Brule sovereign power
sufficient to regulate hunting and fishing within the outer boundaries of
the reservation (except for the taken lands) since neither treaty nor
congressional act has affirmatively abrogated these retained tribal powers,
powers that have existed since prior to South Dakota statehood.


     Thus, it seems to me that it is South Dakota and not the Tribe that
has the "laboring oar" on the issue of fishing and wildlife jurisdiction
over nonmember fee lands and waters within the reservation.       In my view,
the State has fallen woefully short of




                                     16
sustaining its burden under the rules we apply to motions for summary
judgment.


      It is well settled that a waiver of tribal sovereign immunity
"'cannot be implied but must be unequivocally expressed.'"      Santa Clara
Pueblo v. Martinez 436 U.S. 49, 58 (1978)(quoting United States v. Testan,
424 U.S. 392, 399 (1976)).   And the Supreme Court has said: "We found [in
McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 168 (1973)] a
'deeply rooted' policy in our Nation's history of 'leaving Indians free
from state jurisdiction and control.’"   Oklahoma Tax Comm'n v. Sac and Fox
Nation, 508 U.S. 114, 123 (1993).   Thus, although not directly on point,
these holdings dictate that on the facts of this case, as we presently know
them, South Dakota should not be allowed to substitute its sovereign power
for   the   presumptive sovereignty of the Tribe over lands within the
reservation.


      I do not read the holding in Montana v. United States to be to the
contrary.    The issue of inherent sovereignty, or not, is a fact-driven
inquiry or, at least, a mixed question of fact and law, and the evidence
in this case is significantly different than in Montana.


      In Montana, there was a trial at which evidence was adduced by the
State showing that Montana had, since 1928, "engaged in an extensive fish-
stocking program throughout the waters of the Crow Indian Reservation,"
United States v. Montana 457 F. Supp. 599, 605 (1978) and that the State
had both stocked and introduced non-indigenous game birds and indigenous
game animals on reservation lands and areas adjacent to the reservation.
Id.   There was also evidence that the Crow Tribe had taken only a mild
interest in fishing and wildlife management and then only within about five
years or less prior to the 1978 trial.     Id. at 610.   The passage of the
Tribal resolution at issue in the litigation prohibiting all nonmembers
(including presumably nonmember fee owners) from fishing




                                    17
or hunting within the boundaries of the reservation occurred in 1973.    Id.
This action was the first formal exercise of fish and wildlife jurisdiction
in tribal history.   Id.   On the other hand, the Supreme Court observed that
Montana had    "traditionally exercised 'near exclusive' jurisdiction over
hunting and fishing on fee lands within the reservation."    450 U.S. at 564
n.13.    The Supreme Court noted that under the facts of the Montana case
there was no showing of a threat to the political or economic security of
the Crow Nation, and there was not even an allegation in the complaint
concerning impact upon the health and welfare of the Tribe.      Id. at 566.
Therefore, it is readily evident that even with the limited facts available
in this matter through the cross motions for summary judgment, this is a
radically different case than Montana.


        If the Tribe were to purchase in fee simple absolute 10,000 acres of
prime hunting and fishing land along the Missouri River outside of the
reservation, I am confident that the State would seek to apply its
sovereign power, and rightly so, to regulate hunting and fishing activities
on such non-reservation property.      If the Tribe sought to transfer its
sovereignty to the property, the State would make all the same arguments
that the Tribe makes in this case as to why such activity would affect the
political integrity, the economic security, and the health and welfare of
the people of South Dakota.   Those arguments would be valid.   Likewise, the
Tribe's well-used sovereign power over fishing and hunting on the Lower
Brule Reservation lands should not be squeezed out by the State, whomever
may hold title to individual parcels of property in this part of Indian
country.




                                      18
     Does the overlapping, checkerboard-style wildlife regulation scheme5
over the lands within the reservation suggested by South Dakota threaten
or have some direct effect on the political integrity, the economic
security or the health and welfare of the Tribe?       Applying the above
examples, policies, and principles to this question, there can be little
doubt that the answer is in the affirmative.   And even if the proposition
is ambiguous, it is up to South Dakota to rebut with clear and convincing
evidence the presumption of tribal sovereignty, not vice versa.


     Thus, I respectfully dissent from the holding of the court in part
IV A.2. of the opinion.


     A true copy.


         Attest:


              CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




     5
      The court, like the district court, gives too little weight
to the Tribe's credible contention that "checkerboard" jurisdiction
will impair the Tribe's integrity by creating confusion and
discouraging use of the reservation. Supra, at 11; 917 F. Supp. at
1448. To say that the Supreme Court has "authorized exactly this
kind of 'checkerboard' jurisdiction" when the facts so indicate,
supra, at 11, does not mean that we are to simply ignore the effect
of such a result on the Tribe in considering tribal sovereignty.
Indeed in Brendale, the problems presented by inconsistent dual
zoning regulations that frustrated tribal land management clearly
informed the Court's conclusion that the Yakima Nation retained
regulatory authority on fee lands in a portion of the reservation.
497 U.S. at 442-44.

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