                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
          ___________

           No. 98-3893
          ___________

Yankton Sioux Tribe, and its individual *
members,                                *
                                        *
       Appellee,                        *
                                        *
United States of America, on its own    *
behalf and for the benefit of the       *
Yankton Sioux Tribe,                    *
                                        *
       Intervenor Plaintiff - Appellee, *
                                        *
   v.                                   *
                                        *
Matt Gaffey, States Attorney of Charles *   Appeals from the United States
Mix County; Herman Peters, Member       *   District Court for the District of
of the Charles Mix, South Dakota,       *   South Dakota.
County Commission; Bruce Bakken,        *
Member of the Charles Mix, South        *
Dakota, County Commission; Jack         *
Soulek, Member of the Charles Mix,      *
South Dakota, County Commission,        *
                                        *
       Appellants,                      *
                                        *
William Janklow, Governor of South      *
Dakota; Mark W. Barnett, Attorney       *
General of South Dakota,                *
                                        *
       Defendants.                      *
__________________                      *
                                        *
Gary Beeson, Landowner; City of             *
Dante; City of Geddes; City of Lake         *
Andes; City of Pickstown; City of           *
Platte; City of Ravinia; City of            *
Wagner; Harvey P. Weisser, doing            *
business as Weisser Oil Co., Inc.,          *
Individually,                               *
                                            *
      Amici on behalf of Appellant,         *
                                            *
Vine Deloria, Jr.; Philip S. Deloria;       *
Philip Lane, Sr.; Philip Lane, Jr.; James   *
Weddell, descendants of Francois            *
Deloria, Signatory to the Treaty of         *
1858, and descendants and relatives of      *
Philip J. Deloria,                          *
                                            *
      Amici on Behalf of Appellee.          *
         ___________

            No. 98-3894
           ___________

Yankton Sioux Tribe, and its individual *
members,                                *
                                        *
      Appellee,                         *
                                        *
United States of America, on its own    *
behalf and for the benefit of the       *
Yankton Sioux Tribe,                    *
                                        *
      Intervenor Plaintiff - Appellee,  *
                                        *
  v.                                    *
                                        *
Matt Gaffey, States Attorney of Charles *

                                            2
Mix County; Herman Peters, Member           *
of the Charles Mix, South Dakota,           *
County Commission; Bruce Bakken,            *
Member of the Charles Mix, South            *
Dakota, County Commission; Jack             *
Soulek, Member of the Charles Mix,          *
South Dakota, County Commission,            *
                                            *
      Defendants,                           *
                                            *
William Janklow, Governor of South          *
Dakota; Mark W. Barnett, Attorney           *
General of South Dakota,                    *
                                            *
     Appellants.                            *
__________________                          *
                                            *
Gary Beeson, Landowner; City of             *
Dante; City of Geddes; City of Lake         *
Andes; City of Pickstown; City of           *
Platte; City of Ravinia; City of            *
Wagner; Harvey P. Weisser, doing            *
business as Weisser Oil Co., Inc.,          *
Individually,                               *
                                            *
      Amici on behalf of Appellant,         *
                                            *
Vine Deloria, Jr.; Philip S. Deloria;       *
Philip Lane, Sr.; Philip Lane, Jr.; James   *
Weddell, descendants of Francois            *
Deloria, Signatory to the Treaty of         *
1858, and descendants and relatives of      *
Philip J. Deloria,                          *
                                            *
      Amici on Behalf of Appellee.          *
        ___________


                                            3
            No. 98-3896
           ___________

Yankton Sioux Tribe, and its              *
individual members; Darrell E.            *
Drapeau, individually, a member of the    *
Yankton Sioux Tribe,                      *
                                          *
       Appellees,                         *
                                          *
   v.                                     *
                                          *
Southern Missouri Waste Management *
District, a non-profit corporation,       *
                                          *
       Defendant,                         *
                                          *
  v.                                      *
                                          *
State of South Dakota,                    *
                                          *
      Third Party Defendant - Appellant. *
__________________                        *
                                          *
Gary Beeson, Landowner; City of           *
Dante; City of Geddes; City of Lake       *
Andes; City of Pickstown; City of         *
Platte; City of Ravinia; City of          *
Wagner; Harvey P. Weisser, doing          *
business as Weisser Oil Co., Inc.,        *
Individually,                             *
                                          *
       Amici on behalf of Appellant,      *
                                          *
Vine Deloria, Jr.; Philip S. Deloria;     *
Philip Lane, Sr.; Philip Lane, Jr.; James *
Weddell, descendants of Francois          *

                                         4
Deloria, Signatory to the Treaty of      *
1858, and descendants and relatives of   *
Philip J. Deloria,                       *
                                         *
       Amici on Behalf of Appellee.      *
         ___________

            No. 98-3900
           ___________

Yankton Sioux Tribe, and its             *
individual members; Darrell E.           *
Drapeau, individually, a member of the   *
Yankton Sioux Tribe,                     *
                                         *
       Appellees,                        *
                                         *
  v.                                     *
                                         *
Southern Missouri Waste Management       *
District, a non-profit corporation,      *
                                         *
       Appellant,                        *
                                         *
 v.                                      *
                                         *
State of South Dakota,                   *
                                         *
     Third Party Defendant.              *
__________________                       *
                                         *
Gary Beeson, Landowner; City of          *
Dante; City of Geddes; City of Lake      *
Andes; City of Pickstown; City of        *
Platte; City of Ravinia; City of         *
Wagner; Harvey P. Weisser, doing         *
business as Weisser Oil Co., Inc.,       *

                                         5
Individually,                              *
                                           *
       Amici on behalf of Appellant,       *
                                           *
Vine Deloria, Jr.; Philip S. Deloria;      *
Philip Lane, Sr.; Philip Lane, Jr.; James *
Weddell, descendants of Francois           *
Deloria, Signatory to the Treaty of        *
1858, and descendants and relatives of *
Philip J. Deloria,                         *
                                           *
       Amici on Behalf of Appellee.        *
                                      ___________

                               Submitted: June 17, 1999
                                   Filed: August 31, 1999
                                    ___________

Before RICHARD S. ARNOLD, MAGILL, and MURPHY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Before the court are several appeals from judgments concerning lands once
recognized to be part of the Yankton Sioux Reservation. After the Supreme Court
decided in South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789 (1998) (Yankton),
that the reservation had been diminished at the end of the nineteenth century when the
Yankton Sioux Tribe (Tribe) ceded land to the United States, that case was remanded
for further proceedings.1 In the district court the case was then consolidated with an


      1
       See Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 141
F.3d 798 (8th Cir. 1998). Earlier in the history of the case we upheld the district court's
previous ruling that the reservation had been neither disestablished nor diminished.
Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 890 F. Supp. 878
(D.S.D. 1995), aff'd, 99 F.3d 1439 (8th Cir. 1996), rev'd, 118 S. Ct. 789 (1998).

                                            6
action brought by the Tribe to challenge state criminal jurisdiction over acts of tribal
members on nonceded land within the original reservation boundaries. After an
evidentiary hearing, the district court granted declaratory relief to the Tribe, its
individual members, and its chairman Darrell Drapeau, and issued permanent
injunctions enjoining state officials from exercising criminal jurisdiction over tribal
members on "allotted or reserved lands." Yankton Sioux Tribe v. Gaffey, 14 F. Supp.
2d 1135, 1160 (D.S.D. 1998). The district court concluded that the reservation has not
been disestablished and still includes all land within the original exterior reservation
boundaries that was not ceded to the United States. See id. at 1159. The State of
South Dakota (State), the Southern Missouri Waste Management District (District), and
the individual named state and county officials appeal.2

       We affirm the conclusion that the reservation was never clearly disestablished,
but we reverse the conclusion that the original exterior boundaries of the reservation
continue to have effect and that all nonceded lands remain part of the reservation. We
also vacate the injunctions issued in the district court and remand the cases for further
proceedings consistent with this opinion.

                                           I.

       The original boundaries of the Yankton Sioux Reservation were defined in a
treaty between the United States and the Yankton Sioux Tribe on April 19, 1858, 11
Stat. 743 (1858 Treaty), to include approximately 400,000 acres in what is now Charles




      2
       The named defendants in the declaratory judgment action were Matt Gaffey,
States Attorney of Charles Mix County and four members of the Charles Mix, South
Dakota, County Commission (collectively "county officials"), as well as William
Janklow, Governor of South Dakota and Mark W. Barnett, Attorney General of South
Dakota (collectively "state officials").

                                           7
Mix County, South Dakota.3 The Supreme Court held in Yankton that the reservation
was diminished by land ceded to the United States under an 1892 agreement, later
ratified by Congress in 1894. Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, 314-19
(1894 Act). The specific question before the Court in Yankton was whether the Tribe
continued to have jurisdiction over a portion of the ceded land on which the District
planned to build a landfill. The Court focused its discussion on that issue, holding
unanimously that the Yankton Sioux Reservation had been diminished by the 1894 Act,
at least to the extent of the tracts ceded to the United States, and that the State has
primary jurisdiction over all ceded lands including the waste site. See Yankton, 118
S. Ct. at 805.

                                           A.

       The district court held an evidentiary hearing after Yankton was remanded and
consolidated with the second case, and later ruled that the Yankton Sioux Reservation
had not been disestablished and that it had only been diminished to the extent of the
ceded lands. Yankton Sioux Tribe v. Gaffey, 14 F. Supp. 2d 1135 (D.S.D. 1998). The
court noted that nothing in the explicit language of the 1892 agreement supports
disestablishment, but that several articles support the conclusion that a diminished
reservation remains intact. Id. at 1149-56. It also referred to the reports of the council


      3
        The reservation was later surveyed and found to comprise 430,405 acres. See
Letter from the Commissioner of Indian Affairs to the Secretary of the Interior (Dec.
9, 1983), reprinted in, S. Exec. Doc. No. 27, 53d Cong., 2d Sess., 1, 5 (1894) (1894
Commissioner Letter). It is estimated that under the Dawes Act, 167,325 acres were
allotted and patented, and that an additional 95,000 acres were allotted after passage
of the 1891 Act, leaving 168,000 acres of unallotted lands to be ceded through the 1894
Act. See id. The figures from the 1894 Commissioner Letter have been used by the
parties throughout this litigation. Nevertheless, we note that the Court of Claims found
in 1980 that the Yankton Sioux had ceded 201,110 unallotted acres through the 1894
Act. Yankton Sioux Tribe v. United States, 623 F.2d 159, 184 (Ct. Cl. 1980).

                                            8
meetings with the Tribe, which do not discuss boundary changes or relinquishment of
the reservation, but indicate that the 1892 agreement "memoralized only the consent of
the Tribe to sell the surplus lands." Id. at 1145. The efforts to have the tribal members
live close to white settlers were not intended to eliminate the reservation, but to help
the Indians adapt to changed conditions. Id. at 1146-47. The Indians could have
concluded from the representations made by the government negotiators that they
would retain independent powers of self government over their lands. Id. at 1147. The
district court held that the Yankton Sioux Reservation consists of all nonceded land
"within the original exterior 1858 treaty boundaries," including those parcels now
owned by non Indians, as well as Indian owned land and the land reserved from sale
in the 1892 agreement for agency, school, and other tribal purposes. Id. at 1159. It
concluded that primary criminal and civil jurisdiction over these lands belongs to the
Tribe and the United States. Id. The court then issued declaratory judgments and
enjoined state and county officials from exercising criminal law enforcement
jurisdiction over tribal members alleged to have committed crimes on reservation land.
Id. at 1159-60.

      The State, the District, and the individual state and county officials appealed
from these judgments in four separate appeals which have been consolidated by this
court. A motion to expedite the appeals was also granted.4 The four groups of

      4
        Several other motions have been filed. The County has moved to have the
briefs to the Supreme Court lodged with the clerk. The Supreme Court briefs were
made part of the record in the district court and are available online. The motion is
denied since the briefs are already available. The Tribe and the United States have
moved to strike portions of the District's brief and to strike the amicus briefs of Gary
Beeson and the Cities of Dante, Geddes, Lake Andes, Pickstown, Platte, Ravinia, and
Wagner (collectively Cities). In addition, the Tribe has moved to strike the amicus
brief of Harvey P. Weisser. All the motions to strike allege that the challenged briefs
refer to documents which are not part of the record on appeal and thus violate Fed. R.
App. P. 10(a). With the exception of the affidavits of Jonelle J. Drapeau and Ed
Zylstra, submitted as addenda to the amicus brief of the Cities, the challenged

                                           9
appellants all present complementary arguments; they will be referred to collectively
as "the State" when their arguments do not differ. The United States offers numerous
arguments supportive of the Tribe's position; both appellees will be referred to
collectively as "the Tribe" except where their arguments diverge. Each side basically
argues that it is entitled to win on all issues left open by the Supreme Court in Yankton.
The contentions between them primarily involve questions of law which we review de
novo, although any factual findings are reviewed for clear error. See Fed. R. Civ. P.
52(a).

       The State asserts that the 1894 Act disestablished the Yankton Sioux
Reservation and that the only remaining Indian country within the original boundaries
are "Indian allotments, the Indian titles to which have not been extinguished." 18
U.S.C. § 1151(c). It claims that the Supreme Court held in Yankton that the
reservation boundaries did not remain intact and that it also implied that DeCoteau v.
District County Court, 420 U.S. 425 (1975) (finding the Lake Traverse Reservation
completely disestablished), controls the outcome here. The State interprets the text of
the 1894 Act and its legislative history as illustrating the parties' intent to eliminate the
reservation, and it finds further support for this position in the subsequent treatment of
the area. It argues that immediately following the 1894 Act the Tribe itself did not hold
any land in common, and the State's exercise of jurisdiction over the area has led
landowners to develop reasonable expectations that their lands are not Indian country.

      The Tribe argues that the district court correctly ruled that all the nonceded land
within the original exterior reservation boundaries constitutes the present Yankton



references do not deal for the first time with key factual material about which the
opposing parties were unaware. The motions to strike portions of the District's brief
and portions of the Weisser and Beeson briefs are denied. The motions to strike the
Cities' brief are granted only to the extent that they seek to strike the Drapeau and
Zylstra affidavits; these affidavits are stricken and have not been considered.

                                             10
Sioux Reservation.5 The Supreme Court finding of diminishment in Yankton does not
mean that the reservation boundaries did not continue as before, and it cites in support
the Tenth Circuit's decision in Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir.
1997), cert. denied, 118 S. Ct. 1034 (1998). The Tribe argues that DeCoteau does not
control because each agreement and treaty with an Indian tribe is unique and must be
examined in light of the circumstances surrounding its passage. See Minnesota v. Mille
Lacs Band of Chippewa Indians, 119 S. Ct. 1187, 1203 (1999). It contends that the
required clear statement of congressional intent to disestablish the reservation cannot
be found in the text of the 1894 Act, the legislative history, or the historical
circumstances surrounding its passage. It argues instead that these documents show
that Congress and the parties who negotiated the agreement intended all the nonceded
land to retain its reservation status.

                                          B.

      The Yankton Court explicitly limited the scope of its holding to the status of the
ceded lands. Those "surplus" lands were intended by the 1892 agreement to be sold
to white settlers, but a small amount of unallotted land was reserved from sale for use
by the federal government. This land was returned to the Tribe in 1929 and remains
under its control. See Act of February 13, 1929, ch. 183, 45 Stat. 1167. The Supreme
Court refrained from going beyond what was necessary for it to decide in Yankton, and
it did not determine issues of current jurisdiction over the nonceded lands which were
reserved from sale or were originally allotted to individual tribal members. See
Yankton, 118 S. Ct. at 805.




      5
       The district court observed that the Tribe's Constitution as amended in 1990
claimed jurisdiction "extending to the original exterior 1858 boundaries." Yankton
Sioux Tribe v. Gaffey, 14 F. Supp. 2d at 1157. But see Yankton, 118 S. Ct. at 804-05
(quoting the Constitution drafted in 1932 and amended in 1962).
                                          11
        Allotment is a term of art in Indian law. It refers to the distribution to individual
Indians of property rights to specific parcels of reservation. See Affiliated Ute Citizens
v. United States, 406 U.S. 128, 142 (1972). The rights of use and occupancy to these
lands were initially held in common by the Tribe, and the federal allotment policy
sought to advance assimilation of the Indians by promoting its prevailing concept of
individual land ownership. The practice of allotting reservation land began with the
1887 passage of the General Allotment Act (Dawes Act), ch. 119, 24 Stat. 388 (1887)
(codified as amended at 25 U.S.C. § 331). Under the Dawes Act individual tribal
members received patents for allotments of reservation land in parcels of up to 160
acres, to be held in trust by the federal government for twenty five years. At the end
of the trust period the United States would convey the allotment in fee to the individual
allottee, who would then be subject to the civil and criminal laws of the State or
Territory in which he resided. Id. at 389-90. At the time there was increasing pressure
for western land for white settlers, and the Dawes Act provided that the Secretary of
the Interior could negotiate with an Indian tribe to purchase all unallotted lands. Id.
The act was thus a two pronged effort to open up lands for white settlement and to
encourage assimilation of the Indians. It was considered a critical element in
assimilation because the Indian concept of tribal control over land was fundamentally
different from the European American concept of individual land ownership. See Felix
Cohen, Handbook of Federal Indian Law 131-32 (1982 ed.).

      Approximately three-fifths of the Yankton Sioux Reservation was allotted under
the Dawes Act and an act of February 28, 1891, ch. 383, 26 Stat. 794 (amending and
extending the Dawes Act). Although the trust period was initially set at twenty five
years, it was terminated early for some allotments and extended for others. At least
eighty five percent of the land allotted on the Yankton Sioux Reservation eventually
passed out of trust status; most of this land was sold in fee to non Indians. The
allotment policy was later repudiated by the passage of the Indian Reorganization Act
in 1934, which prohibited further allotment of reservation land and indefinitely
extended the trust period for the remaining trust lands. Indian Reorganization Act, ch.

                                             12
576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-77). The record
is far from crystal clear about the specific lands remaining in trust on the Yankton
Sioux Reservation, but it appears such land is interspersed in a checkerboard pattern
with ceded lands and lands which have passed out of trust status and are now owned
in fee.

        The land ceded to the United States under the 1894 Act was subsequently sold
to homesteaders, but the lands allotted to individual Indians continued to be held by the
United States in trust for them. Many of these parcels soon lost their trust status. The
Burke Act, ch. 2348, 34 Stat. 182 (1906) (codified at 25 U.S.C. § 349), permitted the
government to take certain allotted lands out of trust status before the twenty five year
time period expired and to grant the individual Indian allottees unrestricted fee title to
the land. In addition, the trust period on lands which had been allotted within a few
years of the passage of the Dawes Act in 1887 began to expire in the first part of the
twentieth century. At that time it was understood that when an allotment passed out
of trust status and the allottee received the land in fee, he also became subject to the
civil and criminal laws of the State, see Dawes Act, 24 Stat. at 389-90, and could then
sell his land to non Indians if he chose.

       As federal policy began shifting away from allotment, the federal government
acted to protect the trust status of the remaining allotments which had not yet lost that
status. In 1916, an executive order was issued extending the trust period on all but
approximately 150 of the parcels still held in trust on the Yankton Sioux Reservation.
Exec. Order No. 2363, Apr. 20, 1916. The trust period for these allotments was
extended again in 1926 and 1929, Exec. Order No. 4406, Mar. 30, 1926; Exec. Order
No. 5173, Aug. 9. 1929, and then indefinitely in 1934 by the Indian Reorganization
Act, § 2, ch. 576, 48 Stat. 984, 984 (1934) (codified at 25 U.S.C. § 462). As a result
of this history, the majority of residents in many areas of the original Yankton Sioux




                                           13
Reservation are non Indian.6 See U.S. Dept. of Commerce, Census Bureau, 1990
Census of Population, General Population Characteristics, South Dakota 29 tbl. 13
(1990 Census).

       These appeals concern the undetermined current status of the 262,000 acres
originally allotted to tribal members, some of which remain in trust, but the bulk of
which have lost their trust status and are owned in fee by non Indians. The Supreme
Court explained in Yankton that "[t]he conflicting understandings about the status of
the reservation, together with the fact that the Tribe continues to own land in common,
caution us . . . to limit our holding to the narrow question presented: whether unallotted,
ceded lands were severed from the reservation." Id. It answered that question by
holding that the ceded lands were severed and the reservation diminished to that extent.
Id. We are called on now to address questions intentionally left open in
Yankton—whether the Yankton Sioux Reservation was disestablished, and if not,
whether the reservation has been diminished beyond the nonceded lands.

                                            C.

       Although the terms "diminished" and "disestablished" have at times been used
interchangeably, disestablishment generally refers to the relatively rare elimination of
a reservation while diminishment commonly refers to the reduction in size of a
reservation. Compare DeCoteau, 420 U.S. 425; with Rosebud Sioux Tribe v. Kneip,


      6
       According to the 1990 Census, the overall area was approximately two-thirds
non Indian, and although the tribal presence in the area has been increasing since the
Fort Randall Casino was built, see Yankton, 118 S. Ct. at 804, it appears that non
Indians own the bulk of the land within the original reservation boundaries.
Municipalities such as Lake Andes and Wagner, for example, have non Indian
majorities even though they are partially located on lands originally allotted to
individual Yankton tribal members. The Tribe has apparently recently purchased
additional land in the area and has petitioned the United States to take it into trust.
                                            14
430 U.S. 584 (1977); see also Yankton Sioux Tribe v. Southern Missouri Waste
Management Dist., 99 F.3d 1439, 1443 n.4 (8th Cir. 1996). A finding of diminishment
generally suggests that a discrete, easily identifiable parcel of land has been removed
from reservation status. See, e.g., Rosebud Sioux Tribe, 430 U.S. at 615. The 168,000
acres by which the reservation was found diminished in Yankton are not contiguous,
however, and no single boundary line can encompass these lands.

       The question here is one of jurisdiction, that is to what extent the Tribe retains
jurisdiction over any nonceded land within the original reservation boundaries.
Congress clarified tribal jurisdiction by statute in 1948. For the Tribe to have
jurisdiction over any land under the current statute it must qualify as Indian country
pursuant to 18 U.S.C. § 1151. The statute defines Indian country to include all
reservation land (§ 1151(a)), dependent Indian communities (§ 1151(b)), and allotments
"the Indian titles to which have not been extinguished" (§ 1151(c)). If a reservation
exists, the Tribe maintains jurisdiction over all land within its limits, § 1151(a),7 but if
there is no reservation, the State has primary jurisdiction over all land except allotments
which continue to be held in trust, § 1151(c); see also, Alaska v. Native Village of
Venetie, 118 S. Ct. 948, 953 (1998).

       The parties agree that the Tribe has jurisdiction over allotted lands still held in
trust by the federal government. The State, the District, and the individual state and
county officials assert, however, that this jurisdiction falls under § 1151(c) and that no
other lands within the original 1858 boundaries have retained their status as Indian


       7
        It is undisputed that there are broad areas over which the Tribe cannot have
exclusive jurisdiction regardless of territorial jurisdiction. For example, tribes do not
have criminal jurisdiction over non Indians, see Oliphant v. Suquamish Indian Tribe,
435 U.S. 191, 195 (1978), or authority to regulate activities of nonmembers which do
not affect tribal welfare and self-government unless the nonmembers have entered into
consensual relations with the Tribe, see Montana v. United States, 450 U.S. 544, 563-
67 (1981).
                                            15
country under § 1151(a) because the reservation has been completely disestablished.
The Tribe and the United States argue that the district court correctly ruled that the
original exterior reservation boundaries retain effect and that all nonceded land within
those boundaries constitutes the Yankton Sioux Reservation.

                                           II.

                                           A.

       The heart of the matter involves whether Congress intended to disestablish the
Yankton Sioux Reservation when on August 15, 1894 it finally ratified the 1892
agreement ceding certain tribal lands to the United States, see 28 Stat. at 314-20, or if
not, whether it intended to diminish the reservation beyond the ceded lands. The 1892
agreement was the product of protracted negotiations between twenty four tribal
representatives and the members of the Yankton Indian Commission (the
Commissioners) who were appointed to procure the sale of the unallotted lands. The
negotiations took place through a series of councils held from October through
December of 1892. Although the immediate objective of the negotiations was the
purchase of the unallotted lands, the Commissioners viewed this purchase as a step in
the larger process of encouraging complete assimilation.

          Commissioner Cole outlined the Commission's mission to the tribal
representatives at the first council meeting. He explained that "The Great White father
has sent us here to treat with you. He wants to give you a chance to sell your surplus
lands . . . . He does not want you to sell your homes that he has allotted to you. He
wants you to keep your homes forever." Council of the Yankton Indians (Oct. 8, 1892),
transcribed in S. Exec. Doc. 27, 53d Cong., 2d Sess., at 49. Later in the negotiations,
Commissioner Cole also encouraged the Tribe to adapt to western influences. He
argued that the Tribe had no choice but to sell the unallotted lands, declaring: "The tide
of civilization is as resistless as the tide of the ocean, and you have no choice but to

                                           16
accept it and live according to its methods or be destroyed by it. To accept it requires
the sale of these surplus lands and the opening of this reservation to white settlement."
Council of the Yankton Indians (Dec. 17, 1892), transcribed in S. Exec. Doc. No. 27,
at 81.

       The Tribe proved reluctant to accept the offer to purchase its surplus lands. The
Commission's reports show its work was made difficult by the Indians' distrust of the
federal government and by factional divisions within the Tribe. See Report of the
Yankton Indian Commission (March 31, 1893), reprinted in S. Exec. Doc. No. 27, at
7-25 (hereinafter Report). Some tribal members favored the sale and focused their
energies on obtaining the highest possible price for the land, while others expressed
strong opposition to any sale of tribal lands. See id. at 8-11. Key issues in the
negotiations included the price to be paid for the lands, the payment of money due to
individual Indians who had served as scouts for the United States, the continued
payment of annuities pursuant to the 1858 Treaty, and the exclusion of alcohol from the
ceded area. See id. at 12-21. As the Commission reported: "Careful inquiry into the
conditions and requirements of these Indians soon revealed to us the fact that the
purchase of the surplus land was but a small part of our mission and of minor
importance to both the Indians and the Government, the provisions connected therewith
for the future welfare of the Indians being of greater importance to them and to the
Government than the sale of their surplus lands." Id. at 17.

       In December of 1892, the Commission finally reached an agreement with the
Tribe whereby it agreed in Articles I and II to "cede, sell, relinquish, and convey to the
United States all their claim, right, title, and interest in and to all the unallotted lands
within the limits of the reservation" for $600,000. 28 Stat. at 314-15. Article VIII
provided that the portions of the ceded land currently occupied by the United States for
"agency, schools, and other purposes" would be reserved from sale to settlers. 28 Stat.
at 316. Article XVIII stated that the agreement did not abrogate the Tribe's rights under
the 1858 treaty, 28 Stat. at 318, but this language pertained only to the right to receive

                                            17
annuities, not to the reservation boundaries. See Yankton, 118 S. Ct. at 799. Several
other sections of the agreement are relevant to these appeals, but many are not.8

       By 1893 the Commissioners had collected the signatures required to show
endorsement of the agreement by a majority of the adult male members of the Tribe.
Congressional action to ratify the agreement was delayed, however, by the need to
investigate allegations of fraud in the procurement of signatures. Congress finally
ratified the agreement on August 15, 1894, along with two other similar surplus land
sale agreements. 28 Stat. at 314-20. The 1894 Act incorporated the entire 1892
agreement, appropriated necessary funds, prescribed a punishment for violating the
liquor prohibition, and reserved some sections for common school purposes. Id.



                                           B.

       Our starting point in analyzing the 1894 Act is the Supreme Court's Yankton
decision, which each side not surprisingly interprets in its own favor. The State asserts
that Yankton provides an easy answer to the questions before the court because it shows
that the reservation status of all land within the original boundaries has been lost.


      8
        Articles VII, IX-XVI, and XIX-XX have little bearing on the issues here.
Article VII provided for gifts of gold pieces to tribal members. 28 Stat. at 316. Article
IX allowed uncultivated allotted land to be leased. Id. Article X allowed religious
societies to purchase ceded land on which they were operating. Id. at 316-17. Article
XII provided that the money paid under the agreement was not subject to claims by
creditors. Id. at 317. Article XIII fixed the status of mixed bloods. Id. Article XIV
required the government to complete the allotment process as soon as possible. Id.
Article XV settled the claims of the Yankton scouts who had not been paid for their
services. Id. Article XVI settled the Tribe's claim to the Pipestone Reservation. Id.
at 317-18. Article XIX required a copy of the agreement to be placed in the Yankton
"Agreement Book." Id. Article XX bound the parties upon ratification by Congress.
Id.
                                           18
Because the Court relied on DeCoteau, 420 U.S. 425, for the proposition that certain
language in the 1894 Act was precisely suited to terminating reservation status, and
because DeCoteau had found the Lake Traverse Reservation completely disestablished,
it necessarily follows that the 1894 Act similarly completely disestablished the Yankton
Sioux Reservation. In contrast, the Tribe distinguishes DeCoteau and claims that
Yankton's holding of diminishment does not mean the reservation has been
disestablished or its exterior boundaries changed.

       Justice O'Connor, writing for the unanimous Yankton Court, articulated its
precise holding as follows:

      In sum, we hold that Congress diminished the Yankton Sioux Reservation
      in the 1894 Act, that the unallotted tracts [which were ceded to the United
      States through that Act] no longer constitute Indian country, and thus that
      the State has primary jurisdiction over the waste site and other lands ceded
      under the Act.

Yankton, 118 S. Ct. at 805. The Court explicitly declined to decide whether or not the
1894 Act altered the status of the nonceded lands. As Justice O'Connor explained,
"[w]e need not determine whether Congress disestablished the reservation altogether in
order to resolve this case, and accordingly decline to do so." Id. Whether or not other
land within the original reservation boundaries retained its reservation status thus
remained an open question.

      Although the Court used DeCoteau in reaching its conclusion of diminishment,
the Yankton holding was explicitly more limited than that in the earlier case. In
DeCoteau, the Supreme Court analyzed the circumstances surrounding the ratification
and the text of an agreement ceding certain lands on the Lake Traverse Reservation to
the United States and held that the reservation there had been completely disestablished.
DeCoteau, 420 U.S. at 427. The background of the Lake Traverse agreement was very

                                          19
different from that of the 1894 Act, however, because the tribal members there had
expressed their clear desire to terminate their reservation. See DeCoteau, 420 U.S. at
432. In exchange they negotiated allotments for each individual, including married
women. See Act of March 3, 1891, ch. 543, 26 Stat. 989, 1037-38. The circumstances
surrounding the negotiation of the 1892 agreement with the Yankton Sioux and the
difficulty in obtaining tribal votes to ratify it are significantly different, and there was no
expression by the Indians of an intent to eliminate their reservation. Even more
important, the content and wording of the agreements are very different, aside from the
particular cession language the Supreme Court compared in Yankton. Compare 26 Stat.
1036-38, with 28 Stat. 314-18.

      It is well established that similar treaty language does not necessarily have the
same effect when dealing with separate agreements. Justice O'Connor writing for the
Court in Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S. Ct. 1187, 1203
(1999), warned against reaching this conclusion.

       The . . . argument that similar language in two Treaties involving different
       partes has precisely the same meaning reveals a fundamental
       misunderstanding of basic principles of treaty construction. . . . Th[e]
       review of history and the negotiations of the agreement is central to the
       interpretation of treaties.

Context has been found to play a similarly important role in interpreting the language
of the surplus land acts.9 See Solem v. Bartlett, 465 U.S. 463, 469 (1984). The

       9
        Although in 1871, Congress terminated treaty making with Indian tribes, the
United States continued to negotiate agreements with them in much the same manner
as it had negotiated treaties. See Felix S. Cohen, Handbook of Federal Indian Law
127-28 (1982 ed.). The 1892 agreement itself was also sometimes referred to as a
"treaty." See, e.g., S. Exec. Doc. No. 27, 53rd Cong., 2d Sess. at 48 (statement of
Commissioner Cole to tribal negotiations); 1894 Commissioner Letter at 5 (letter from
                                             20
Commissioners negotiating on behalf of the United States told the Yankton tribal
representatives that "[The Great White Father] wants you to keep your homes forever.
He only wants you to sell your surplus lands for which you have no use." Council of the
Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doc. 27, 53d Cong., 2d Sess.,
at 49. In light of the significant contextual differences, we cannot assume that the
Court's citation to DeCoteau means that that case controls the issues raised here.

       The Yankton Court did make a number of explicit references to the status of the
reservation boundaries. The Court found the 1894 Act distinguishable from those acts
which it "has interpreted as maintaining reservation boundaries." Yankton, 118 S. Ct.
at 799. The question before it was described as whether the 1894 Act "diminished the
boundaries" of the reservation. Id. at 793. The Court distinguished situations in which
states acquired primary jurisdiction over opened lands and "thereby diminished the
reservation boundaries" from those in which the entire opened area remained Indian
country even though non Indians were able to purchase land. Id. at 797-98 (citations
omitted). In the Commission reports it found evidence that the 1894 Act involved
alteration of "the reservation's character" and "a reconception of the reservation." Id.
at 802. Some of the language was "reminiscent" of that used for the diminished Unitah
reservation. Id. ("Congress would 'pull up the nails' holding down the outside
boundary" of the reservation) (citation omitted). The Court went on to hold that the
savings clause of Article XVIII "pertains to the continuance of annuities, not the 1858
borders." Id. at 800 (emphasis added). These references indicate the Court's
understanding that the 1858 reservation boundaries did not remain intact following
passage of the 1894 Act.

        The Tribe is able to identify only one reservation which apparently continues to
have its original boundaries even though some of the land within the boundaries has lost
its reservation status—the Unitah Valley Reservation. The peculiar procedural history


Commissioner of Indian Affairs referred to the Secretary of the Interior).
                                          21
of the litigation involving that reservation does not suggest that it is precedent for
maintenance of the original exterior borders of the Yankton Sioux Reservation. Long
after the Tenth Circuit held that the Unitah Valley Reservation had been neither
disestablished nor diminished, Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985)
(en banc), the Supreme Court decided in a different case that the reservation had been
diminished, Hagen v. Utah, 510 U.S. 399 (1994). The Tenth Circuit then modified its
Ute decision to the extent it was in direct conflict with Hagen, holding that the ceded
lands did not retain reservation status, but it did not change its position regarding the
status of the other lands within the original reservation boundaries. Ute Indian Tribe v.
Utah, 114 F.3d 1513, 1520 (10th Cir. 1997). The Tenth Circuit indicated that the
reason it went no further in its 1997 decision was because of concern for finality in light
of years of reliance on its earlier holding. See id. at 1524, 1527.

       Based on our interpretation of what the Court said in Yankton, the lack of
controlling precedent to suggest the original reservation boundaries can be maintained
despite the extent of the diminishment, and the record before the court which we discuss
below, we conclude that the original exterior boundaries of the Yankton Sioux
Reservation do not serve to separate Indian country from areas under primary State
jurisdiction.

                                            C.

       Congressional intent is the touchstone for analyzing whether the 1894 Act altered
the status of the nonceded lands. See Rosebud Sioux Tribe, 430 U.S. at 586. After land
is set aside for an Indian reservation, it retains that status until Congress explicitly
indicates otherwise. See Solem, 465 U.S. at 470. Intent to diminish or disestablish a
reservation must be "clear and plain." United States v. Dion, 476 U.S. 734, 738 (1986).
Such intent must be "expressed on the face of the Act or be clear from the surrounding
circumstances and legislative history." Mattz v. Arnett, 412 U.S. 481, 505 (1973).
Whether Congress intended to disestablish the reservation completely, or whether it

                                           22
intended all or some of the nonceded land to retain its reservation status is complicated
by the fact that modern distinctions between different categories of Indian country were
not recognized by nineteenth century legislators who had a different understanding of
the requirements for land to be classified as reservation land and/or Indian country.

      As mentioned earlier, three different categories of land currently qualify as Indian
country:

      (a) all land within the limits of any Indian reservation under the jurisdiction
      of the United States Government, notwithstanding the issuance of any
      patent, and, including rights- of-way running through the reservation, (b)
      all dependent Indian communities within the borders of the United States
      whether within the original or subsequently acquired territory thereof, and
      whether within or without the limits of a state, and (c) all Indian
      allotments, the Indian titles to which have not been extinguished, including
      rights-of-way running through the same.

18 U.S.C. § 1151. This definition of Indian country was codified in 1948, and its key
provisions have remained unchanged since that time. The State places great emphasis
on the distinction this definition makes between land that is Indian country because it
is part of a reservation, § 1151(a), and land which qualifies as Indian country under
§ 1151(c) because of its allotment status. An Indian allotment may be either a parcel
held in trust by the federal government for the benefit of an Indian (a trust allotment) or
a parcel owned by an Indian subject to a restriction on alienation in favor of the United
States (a restricted allotment). See United States v. Stands, 105 F.3d 1565, 1571-72
(8th Cir. 1997). Under § 1151(c) both types of allotments are Indian country regardless
of whether they are on or off an Indian reservation. 18 U.S.C. § 1151(c); see also
Alaska v. Native Village of Venetie, 118 S. Ct. 948, 953 (1998). In contrast, lands that
are owned in fee without such restrictions on alienation do not qualify as Indian country


                                           23
under § 1151(c); but they may be classified as Indian country under § 1151(a) if they
are within the boundaries of an Indian reservation. See Stands, 105 F.3d at 1572.

       The parties all agree that lands originally allotted to individual tribal members that
are still held in trust by the United States are Indian country within the meaning of
§ 1151(c), but they dispute whether the Yankton Sioux reservation still exists and
whether any nonceded lands fit the current understanding of Indian country in § 1151(a).
The State argues that although Congress intended some lands to retain their status as
Indian country because of their status as allotments, it did not intend to maintain any
reservation. The Tribe, on the other hand argues that the 1894 Act only altered the
status of the ceded lands and that the reservation status of all other lands within the
original 1858 boundaries was not changed.

       Members of Congress in 1894 operated on a set of assumptions which are in
tension with the modern definitions of Indian country, and the intentions of that Congress
and of the 1892 negotiating parties are what we must look to here. At the turn of the
century, Indian lands were defined to include "only those lands in which the Indians held
some form of property interest: trust lands; individual allotments, and, to a more limited
degree, opened lands that had not yet been claimed by non-Indians." Solem, 465 U.S.
at 468. Lands to which the Indians did not have any property rights were never
considered Indian country. The notion of a reservation as a piece of land, all of which
is Indian country regardless of who owns it, would have thus been quite foreign.
Congress in the late nineteenth century was operating on the assumption that reservations
would soon cease to exist, see id, and on the belief that allotting lands, and purchasing
those left unallotted, were steps in the process of eventually dismantling the reservation
system. See United States v. Southern Pacific Transp. Co., 543 F.2d 676, 695 (9th Cir.
1976). The 1894 Congress would have felt little pressure to specify how far a given act
went toward diminishing a reservation and would have had no reason to distinguish
between reservation land and other types of Indian country. See id.


                                            24
        With this background in mind, see Yankton, 118 S. Ct. at 798, we consider
whether the 1894 Congress intended to eliminate the Yankton reservation entirely or
whether it intended to maintain the reservation status of some or all of the nonceded land.
We apply the standard rules of interpretation for surplus land act cases. Each act must
be analyzed individually, its effect depending on the language used and the circumstances
of its passage. See Solem, 465 U.S. at 469. The statutory language provides the most
probative evidence of congressional intent. See Rosebud Sioux Tribe, 430 U.S. at 586.
Also relevant are the legislative history of the act and its historical context, including
events surrounding the statute's passage which shed light on the contemporaneous
understanding of it. See Hagen v. Utah, 510 U.S. 399, 411 (1994). Treaties with Indians
are also interpreted to give effect to the terms as the Indians themselves would have
understood them. See Mille Lacs Band of Chippewa Indians, 119 S. Ct. at 1200. To a
lesser extent, the subsequent treatment of the area is also relevant. See Yankton, 118 S.
Ct. at 798. Under certain circumstances the "justifiable expectations" of the parties are
considered, see Rosebud Sioux Tribe, 430 U.S. at 605, as well as changes in the
demographics of the area, see Hagen, 510 U.S. at 411 All ambiguities are resolved in
favor of the Indians, and neither diminishment nor disestablishment will be found lightly.
See Yankton, 118 S. Ct. at 798; Hagen, 510 U.S. at 411.

       The primary purpose of the 1892 agreement, which was ratified by the 1894 Act,
was to cede the unallotted surplus lands on the Yankton Sioux Reservation to the United
States. The specific language accomplishing this goal is found in Articles I and II of the
agreement. Article I states that the Tribe agrees to "cede, sell, relinquish, and convey to
the United States all their [sic] claim, right, title, and interest in and to all the unallotted
lands within the limits of the reservation." 28 Stat. at 314. Article II provides that the
United States agrees to pay the Tribe $600,000 "in consideration for the lands ceded,
sold, relinquished, and conveyed to the United States." Id. at 315. The text of these
articles refers explicitly only to the ceded lands.




                                             25
        The State argues that the cession of these lands necessarily terminated the
reservation status of all lands within the original 1858 boundaries. It contends that
allotments were intended to be temporary in nature and cannot alone constitute a
reservation. It believes the failure of the Tribe to retain ownership in common of land
for itself means that the reservation was disestablished. The State asserts that uncertainty
about whether the Tribe owned land in common in 1894 was the key point which kept
the Yankton Court from finding the reservation disestablished. Now that it has produced
evidence to resolve that question in its favor and the district court has found that the
Tribe did not reserve any lands in 1892 to be held in common, see Yankton Sioux Tribe
v. Gaffey, 14 F. Supp. 2d at 1154, the reservation must be found disestablished. We
cannot agree that the Supreme Court expected this point alone to be dispositive,
however, for it said that among the factors causing it to limit its holding was "the fact that
the Tribe continues to own land in common." Yankton, 118 S. Ct. at 805 (emphasis
added), an apparent reference to the Tribe's current landholdings.

        The State also relies heavily on what it views as the background understanding of
the 1894 Congress to support its conclusion that cession of all land held in common by
the Tribe necessarily terminated the reservation status of everything within the original
1858 boundaries. It cites the comment in Yankton that around the turn of the century
"'[t]he notion that reservation status of Indian lands might not be coextensive with tribal
ownership was unfamiliar.'" Id. at 798 (quoting Solem, 465 U.S. at 468). It is important
to keep in mind that it is not clear that the reference in Solem to "tribal ownership" meant
ownership of land in common by the Tribe, as opposed to ownership by a tribal
member.10 In any event Indian tribes did not hold ownership rights to land, but rather

       10
        A careful reading of the relevant passage in Solem suggests that the Court used
the terms "reservation lands" and "Indian lands" interchangeably to refer to all lands in
which Indians had a property interest when it was discussing the assumptions of
Congress in the early nineteenth century. Solem contrasted lands that "retained
reservation status" from those that were "divested of all Indian interests," and the Court
appeared to use both the words "reservation lands" and "Indian lands" to refer to lands
                                            26
rights to exclusive use and occupancy of land. See Spalding v. Chandler, 160 U.S. 394,
403 (1896). Although the background understanding of the 1894 Congress "informs our
inquiry," id., courts have not been willing to extrapolate from general legislative
assumptions and expectations of the late nineteenth century to find in each surplus land
act a specific congressional purpose to remove all lands not under Indian control from
reservation status. See Solem, 465 U.S. at 468-69. If Congress' general understanding
that tribal ownership was a necessary component of reservation status controlled, all
land which passed out of tribal ownership would necessarily be found to have lost its
reservation status—a conclusion the Supreme Court has explicitly refused to adopt. Id.

       More persuasive arguments regarding the interpretation of Articles I and II are
drawn from evidence which places the Act in its full historical context and sheds light on
the parties' contemporaneous understanding of the impact of the cession. The State
argues that this evidence shows that the "'cession' and 'sum certain' language" in Articles
I and II, see Yankton, 118 S. Ct. at 798 (citation omitted), was intended to terminate the
reservation status of all lands within the original reservation boundaries. The Tribe
argues that these same documents establish that the parties understood that these articles
would only terminate the reservation status of the ceded lands.

       The Commissioners who negotiated the agreement on behalf of the United States
retained detailed records of the councils held to negotiate the sale of the unallotted lands
and prepared an extensive report which was submitted to Congress along with the
agreement. See S. Exec. Doc. No. 27, 53d Cong., 2d Sess. (1894). Two key points can
be discerned from these records. First, the Commissioners indicated to the tribal


that retained their reservation status. Solem, 465 U.S. at 468. "Indian lands" included:
"[o]nly those lands in which the Indians held some form of property interest: trust lands,
individual allotments, and, to a more limited degree, opened lands that had not yet been
claimed by non-Indians." Id. Finally, the Court specifically pointed out that "only in
1948 did Congress uncouple reservation status from Indian ownership." Id. (emphasis
added).
                                           27
representatives that their primary objective was the purchase of the unallotted lands.
Second, the Commissioners emphasized to the tribal representatives that tribal members
needed to move into the modern, post tribal era and that the sale of the unallotted lands
would constitute one step toward that ultimate goal. See id.

       The Commissioners repeatedly emphasized that they had one primary purpose.
Commissioner Adams, for example, introduced the Commission's purpose, stating that
"we . . . understand that you own, outside your allotments, a large quantity of land in
common. It is this land that you own in common that we were appointed by the Great
Father to talk to you about." Council of the Yankton Indians (Oct. 8, 1892), transcribed
in S. Exec. Doc. 27, 53d Cong., 2d Sess., at 48. They also indicated that the tribal
leadership would retain some governing powers, suggesting for example, that: "It might
be, after you sold your lands, you could have this reservation organized as a separate
county. If this could be done—I do not say it can —you could govern your own people
in your own way, so long as you obeyed the laws of the State ." Id. The Yankton Sioux
could have interpreted such comments to indicate that their powers of self government,
which at that time were limited to lands in which Indians had a property interest, would
not be further limited and that the cession of the unallotted lands would not alter the
Tribe's control over the lands retained by the Indians. Although the Commissioners were
careful not to make promises concerning the scope of tribal self government powers, the
references to a continuing tribal government suggest the parties did not intend to
disestablish the reservation.

       The Commissioners' introductory remarks, however, also emphasized that the
tribal members needed to adapt to the modern era and urged them to allow settlers on the
then unallotted lands so that they could learn from the white man how to farm, conduct
business, and be citizens. Id. In line with the assumption that the reservation system
would soon be outmoded, Commissioner Cole admonished:




                                          28
            In your old life the tribal condition was a necessity. It united you and
      protected you and made you strong. But you are now living under new
      conditions and you must drop your old forms which are not suited to these
      conditions and take up new forms suited to your new mode of life. The
      Government seeing this sent an allotting agent to you to help you divide you
      land and select your homes. . . .

             Now that you have your homes and that your allotted lands are more
      than you can make use of, you have sent word to Secretary Noble that you
      desire to sell your surplus lands and get money to help you to improve your
      farms and build good houses and buy stock. The Great Father and his
      Great Secretary . . . have sent us here to buy [the] surplus lands for homes
      for white men who will settle among you; who will live peaceably and
      neighborly with you; who will cultivate these surplus lands and make your
      allotted lands more valuable.

Id. at 50. At the time the cession agreement was negotiated, the allotment process was
not even complete; many allotments remained to be finalized. See 1894 Commissioner
Letter at 5. The concept of individual property ownership was new to the Indians, and
although it was hoped allotment would stimulate individual effort to improve the land,
there is little indication that this concept had taken root. See Report of the Yankton
Indian Commission (Mar. 31, 1893), reprinted in S. Exec. Doc. No. 27, at 7, 14-16 (1893
Report). The Indians thus could easily have understood these statements to mean that
the status of the lands that had been allotted to them would not be changed by the
agreement, and that they would retain control over these lands as in the past.

      The Commission's report to Congress highlights its hope that assimilation would
be promoted by the allotment of reservation lands and the cession of those that remained
unallotted, but the report also suggests the parties recognized a division between
unallotted and ceded lands. The Commission indicated that "now that [the members of

                                          29
the tribe] have been allotted their lands in severalty and have sold their surplus land – the
last property bond which assisted to hold them together in their tribal interest and estate
– their tribal interests may be considered a thing of the past." Report of the Yankton
Indian Commission (Mar. 31, 1893), reprinted in S. Exec. Doc. No. 27, at 7, 19
(hereinafter Report). The Supreme Court found this language supported its conclusion
that the 1894 agreement divested the Tribe of jurisdiction over the ceded lands.
Yankton, 118 S. Ct. at 803.

     This same report also indicates, however, that the ceded and nonceded lands
would be treated differently, at least for as long as the Indians retained property in
common, suggesting that the divestiture of jurisdiction was not complete. In explaining
to Congress why they had such difficulty negotiating a price for the land, the
Commissioners explained.

       On the matter of price we encountered much difficulty. Two important
       factors in determining the value of these lands seem to have been wholly
       overlooked by both the Indians and their friends: First, That the Indians
       were not selling their whole reservation, but less than two-fifths of it, and
       that more than three-fifths of it would remain in their possession for such
       cultivation and improvement as Indians will give to it, and free from
       taxation for twenty five years; second, that the surplus lands are not in one
       body, but scattered over the reservation and mixed up with the allotted
       lands of the Indians. We think the value of these surplus lands per acre
       would be doubled if the whole reservation were being disposed of by the
       Indians, to be equally improved by white people and uniformly taxed.

1893 Report at 13. This report is evidence of the parties' understanding that only a
portion of the reservation was being separated at that time, and also suggests that the
negotiations were complicated by the Indians' differing conception of land use and
property ownership.

                                            30
       The Commission's reports do not describe any reservation boundaries or mention
any transfer of the Yanktons' tribal sovereignty. See Yankton Sioux Tribe v. Gaffey, 14
F. Supp. 2d 1135, 1148 (D.S.D. 1998). Instead, these reports show only that the
Commissioners emphasized the need for the Indians eventually to become completely
assimilated into the "modern era" and encouraged them to sell their surplus lands to aid
in this process. Although the sale of the surplus lands was characterized as a step
required by changes of the modern era, it was not directly equated with the loss of
control over other lands. In sum, the plain language of the text of Articles I and II only
refers to the ceded lands, and the reports of the Commission do not indicate the "clear
and plain" congressional intent required to show the reservation status of all nonceded
lands was terminated by this Act. The evidence is thus insufficient to establish that the
"cession and sum certain" language of Articles I and II was intended to disestablish the
reservation.

       There are other provisions of the agreement which may shed light on the intended
impact on unallotted lands. The State directs our attention to Articles III-VI and XI,
which established a complex system for the payment of the purchase price of $600,000.
28 Stat. 315-17. It points out that some aspects of the payment plan were linked to the
twenty five year trust period and argues that this shows that such lands retained their
Indian country status because the Indian title to the allotments had not yet been
extinguished. The Tribe, on the other hand, argues that the provision allowing for the
Act's creation of a fund to support schools, courts, and other tribal institutions evidences
congressional intent to preserve tribal self government within the 1858 boundaries and
to maintain reservation status for the allotted lands.

       According to the agreement for payment, $100,000 was to be divided among the
members of the tribe per capita, and $500,000 was to be placed into an interest bearing
account for the benefit of the Tribe. Article V provided that interest from that account
could be used to set up a fund to meet basic needs of the tribal members, or it would be
distributed on a per capita basis to tribal members. 28 Stat. at 315. After the trust period

                                           31
expired on the allotted lands, any monies remaining in the original account or in the fund
were to be disposed of by the Secretary of the Interior for the benefit of the Tribe. Arts.
IV, V, 28 Stat. at 315. Article IX provided that the allotted land of any tribal members
who died without heirs within twenty five years was to be sold and the proceeds added
to the fund provided for in Article V. 28 Stat. at 315-17.

        The Tribe places great emphasis on Article V because it specifically provided that
some of the interest due on payment funds might be set aside and used "for the care and
maintenance of such orphans, and aged, infirm, or other helpless persons of the Yankton
tribe of Sioux Indians. . . ; for schools and educational purpose for the said tribe; and for
courts of justice and other local institutions for the benefit of said tribe." 28 Stat. at 315.
Institutions that might have qualified for such monies included the Indian police force
and the Court of Indian Offenses, both of which the district court found still operative at
the time of ratification. See Yankton Sioux Tribe v. Gaffey, 14 F. Supp. 2d, at 1150.
It is undisputed that this optional fund was never actually created, but the fact that it was
provided for in the statute has relevance on the question of intent. Article V clearly
foresaw continued tribal activity in providing for the needs of the Yankton Sioux in
terms of education, justice, and "other local institutions." Nevertheless, section 2 of the
article also contemplated a future in which such a fund would not be needed when the
Indians might receive "complete title to their allotted lands and . . . assume[] all duties
and responsibilities of citizenship." 28 Stat. at 315.

       The prohibitions on the sale of alcohol found in Article XVII provide further
insight into the parties' intent. This article provides that "no intoxicating liquors nor other
intoxicants shall ever be sold or given away upon any of the lands by this agreement
ceded and sold to the United States, nor upon any other lands within or comprising the
reservations of the Yankton Sioux or Dakota Indians." 28 Stat. at 318. The Supreme
Court found this provision indicated that the parties intended to diminish the reservation
by the Act of 1894, reasoning that the language would have been superfluous if all lands
were to retain their reservation status. See Yankton, 118 S. Ct. at 801. The language

                                             32
would also have been superfluous if the parties had intended to disestablish the Yankton
Sioux Reservation. The Court found it significant that the provision "signal[ed] a
jurisdictional distinction between reservation and ceded land. Id." In this article the
parties acknowledged the continued existence of two distinct categories of land to which
different laws might apply.

       Article VIII, the "agency lands provision," provides strong evidence that a
reservation was expected to remain in existence. This provision provides that "[s]uch
part of the surplus lands hereby ceded and sold to the United States, as may now be
occupied by the United States for agency, schools, and other purposes, shall be reserved
from sale to settlers until they are no longer required for such purposes." 28 Stat. at 316.
As the Supreme Court noted, this provision "counsels against finding the reservation
terminated." Yankton, 118 S. Ct. at 801. The Court cited its prior interpretation of
virtually identical language in Solem where it reasoned that it would be "'difficult to
imagine why Congress would have reserved lands for such purposes if it did not
anticipate that the opened area would remain part of the reservation.'" Yankton, 118 S.Ct.
at 801 (citing Solem, 465 U.S. at 474). Congress' expectation that the federal
government would continue to have a significant presence in the area for the welfare of
the Tribe indicates that some lands were expected to remain outside of primary state
jurisdiction.

       The State argues that the retention of this land is irrelevant to our analysis because
the provision does not specify that such reserved land remained in reservation status, and
the federal government's continuing obligations were based on the fact that Indian
allottees held patents for their land in trust. Nothing in Article VIII specifically ties the
government's retention of these lands to the trust period, however, or indicates that its
obligations were expected to end when the trust period expired. Instead, the Article says
that the lands would be retained "until they are no longer required for such purposes."
28 Stat. at 316. And in 1929 the lands were returned to the tribe for common purposes.


                                            33
Act of February 13, 1929, ch. 183, 45 Stat. 1167 (explicitly providing that the lands
could not be allotted).

        Neither the text of the 1894 Act nor evidence of the parties' contemporaneous
understandings clearly establish an intent to disestablish the Yankton Sioux Reservation.
The reports indicate that the Commissioners' statements may have sent mixed messages
to the Indians in that they sometimes talked about continuing tribal control over land and
sometimes suggested that the property bonds of the Indians would be severed. The
Indian understanding of land use and control differed from the European American notion
of individual property ownership and the Commissioners mixed messages could have led
the Yankton Sioux to believe that their control over the lands retained in trust for
individual members would remain unchanged. See Felix Cohen, Handbook of Federal
Indian Law 131-32 (1982 ed.); see also Michael L. Ferch, Indian Land Rights, 2
Transnat'l L. & Contemp. Probs. 301 (1992) (comparing the Indian view of property
rights with the western view).

       The Act could not foresee all that would happen in the future with population
movement, state development, and changing Indian policy, but it contained provisions
showing concern for future interests of the Indians in common, as well as provisions
recognizing that conditions were sure to change as white settlers moved in to the opened
reservation with the expectation of state support. In the Act, the federal government
reserved land to provide for tribal needs in Article VIII, and the parties recognized a
distinction between ceded and reservation lands in Article XVII. The Act did not leave
all land within the original exterior reservation boundaries under tribal control, see
Yankton, 118 S. Ct. at 805, or define new reservation boundaries, and nothing in its text
or the circumstances surrounding its passage suggests that any party anticipated that the
Tribe would exercise jurisdiction over non Indians who purchased land after it lost its
trust status. Some articles of the Act reflect the parties' assumption that an allottee who
received full title at the end of the trust period would become subject to the civil and
criminal laws of the State or territory in which he resided. 24 Stat. at 389-90. Article

                                           34
V indicates that the fund which could be established to provide for helpless and infirm
tribal members would no longer be needed "[w]hen the Yankton tribe of Sioux Indians
shall have received from the United States a complete title to their allotted lands and shall
have assumed all the duties and responsibilities of citizenship." 28 Stat. at 315.
Congress also added the so-called "school sections clause" to the Act which parallels
language in the South Dakota enabling act, Act of Feb. 22, 1889, 25 Stat. 679, and
provided that certain sections of the ceded land would be reserved for common schools,
28 Stat. at 319. This suggests that as more white settlers came on to the opened lands,
increased state involvement on their behalf was expected, and the jurisdiction of the State
was expected to increase over time.

        In sum, the 1894 Act did not clearly disestablish the Yankton Sioux Reservation,
but it intended to diminish the reservation by not only the ceded land, but also by the land
which it foresaw would pass into the hands of the white settlers and homesteaders. The
text of the 1894 Act, read in its full historical context, establishes that the intent was to
cede certain lands to the United States and to open areas of the Yankton Sioux
Reservation to white settlers, as well as to reserve land to be used to care for continued
tribal interests. Until the Indian allottees would receive their lands in fee and the trust
period over them would end, they could not convey land to non Indians. It was then
foreseen that the trust period over the allotments would at some point come to an end,
but we note that some of this allotted land apparently remains in trust to this very day.

                                             D.

       The treatment of the Yankton area in the years following the passage of the Act
provides further evidence that the nonceded lands retained their reservation status until
they passed out of trust. Although evidence regarding the subsequent treatment of the
area cannot control when there is strong textual and contemporaneous evidence regarding
the status of the land in question, Yankton, 118 S. Ct. at 804, courts have consistently
recognized that events occurring after the passage of a surplus land act may shed light

                                            35
on the contemporaneous understanding of the act, see Solem, 465 U.S. at 4701; see also
Hagen, 510 U.S. at 411. Established jurisdictional patterns may also over time lead to
the development of justifiable expectations which the Supreme Court has found worthy
of consideration. Rosebud Sioux Tribe, 430 U.S. at 604-05.

       Congress took a definitive and considered step when it decided to return title to
the Yankton Sioux Tribe for the lands that had been reserved for federal use in the 1894
Act. See Act of February 13, 1929, ch. 183, 45 Stat. 1167.11 Congress not only returned
the land to the Tribe, but also specifically provided that the land would not become
available for allotment purposes. Id. Although "the views of a subsequent Congress
form a hazardous basis for inferring the intent of an earlier one," Yankton, 118 S. Ct. at
803, the return of these lands to tribal control suggests that the reserved lands were
always intended to provide a property site for organized efforts to provide aid and
education to tribal members so long as they were needed. This action indicates that at
the close of the era, the United States government understood, as it continues to argue
today, that the Yankton Sioux reservation was not completely disestablished in 1894.

      Longstanding divisions of jurisdictional authority have also been entitled to
considerable weight in similar boundary disputes. See Rosebud Sioux Tribe, 430 U.S.


      11
         References cited by the parties to administrative documents and maps, which
either refer to the Yankton Sioux Reservation or lack any such reference, were found
by the Supreme Court to have "limited interpretive value." Yankton, 118 S. Ct. at 803-
04. The use of the term "Yankton Sioux Reservation" in such documents, without
more, cannot be said to be a considered jurisdictional statement regarding the specific
status of the remaining Indian lands. Moreover, problems associated with relying on
the presence or absence of a cite on a map is illustrated by the failure of a prestigious
map maker to include the states of North Dakota, South Dakota, Oklahoma and parts
of Minnesota, Iowa, and Kansas in one world atlas. See Richard J. Margolis, "How
the West Was Lost," The New Leader, p. 13 (Nov. 27, 1989) (discussing the omission
of these states from Rand McNally's 1989 Photographic World Atlas).


                                           36
at 605 n.28. The State has presented uncontroverted evidence showing that the State has
assumed primary jurisdiction over unallotted lands that have passed out of trust status.
The Tribe has not established reason to doubt the veracity of the various letters and
reports of several Superintendents of the Yankton Agency and Commissioners of Indian
Affairs which indicate that the federal government only exercised jurisdiction over
allotted lands held in trust and the agency reserve. In addition, three former United
States Attorneys for the District of South Dakota testified that during their tenures, which
collectively cover most of the years between 1965 and 1991, the federal government
continued to exercise jurisdiction only over those lands actually held in trust. The Tribe
has presented evidence indicating that it maintained a tribal police force and an
independent judicial system following the passage of the 1894 Act.12 It has also
presented evidence suggesting that the State did not always allocate sufficient resources
to enforce its laws consistently within the original reservation boundaries. While this
evidence may show problems of enforcement, it does not prove that the Tribe or the
federal government exercised jurisdiction over the whole area. On the record before the
court, the Tribe has not presented any new evidence to undermine the Supreme Court's
statement that the Tribe has not asserted civil, regulatory, or criminal jurisdiction over
lands other than those held in trust, Yankton, 118 S. Ct. at 804, and "the longstanding
assumption of jurisdiction by the State over [a predominately non-Indian area creates]
justifiable expectations which should not be upset by [a] strained . . . reading of the Acts
of Congress," Rosebud Sioux Tribe, 430 U.S. at 604-05.

                                            III.




      12
        The Tribe's position on this evidence is not contested. A court of Indian
offenses was in existence at the time of the treaty in 1894. Although it was abolished
in 1909, its duties were taken over by the Superintendent until it was reinstated in 1943.
The court was replaced in 1945 with the Yankton Sioux Tribal Court, but there is no
evidence that this court ever exercised jurisdiction over lands owned by non-Indians.
                                           37
       In 1858 Congress designated the Yankton Sioux Reservation as an area set aside
for the exclusive use of the Yankton Sioux Tribe. The status of the lands which initially
comprised this reservation were later altered when the federal government allotted lands
previously held in common by the Tribe to individual Indians and then purchased the
remaining unallotted lands to open them up for homesteading. In Yankton, the Supreme
Court held that the cession of the unallotted lands in 1894 removed these lands from the
reservation and indicated that the 1858 boundaries were not maintained. The text of the
1894 Act and evidence regarding the parties' contemporaneous understanding of it
establish that the reservation was maintained, but do not define its precise boundaries.
When viewed in its full historical context, however, it is clear that the parties did not
intend for the tribe to retain control over allotted lands which passed out of trust status
and into non Indian hands.

       For these reasons, we hold that the Yankton Sioux Reservation has not been
disestablished, but that it has been further diminished by the loss of those lands originally
allotted to tribal members which have passed out of Indian hands. These lands are not
part of the Yankton Sioux Reservation and are no longer Indian country within the
meaning of 18 U.S.C. § 1151. We recognize that the original exterior treaty boundaries
of the reservation have not been maintained. See Yankton, 118 S. Ct. at 799-800. We
also assume that land now owned in fee by individual Indians is not under tribal
jurisdiction unless it is found to be "within the limits of [the] Indian reservation." 18
U.S.C. § 1151(a). On the record before the court, however, we cannot define the precise
limits of the reservation which remains.

        The current amount of Indian trust land on the Yankton Sioux Reservation is
unclear from the record. Since both sides have followed an all or nothing strategy (the
State arguing disestablishment and the Tribe claiming maintenance of the 1858
boundaries), neither side spent much time developing the record on the specifics of this
trust land. The South Dakota Supreme Court has said that the reservation was reduced
by the 1894 Act "from a 410 square mile (430,495 acre) sanctuary down to what is

                                            38
presently scattered Indian holdings of approximately 40,000 acres." South Dakota v.
Greger, 559 N.W. 2d 854, 859 (1997). It also stated that in modern times both Indians
and non Indians refer to the reservation "as a 'mile square'" id., in reference "to the tribal
headquarters area at Marty," id. at 859 n.4. The Supreme Court later stated in Yankton
that currently less than ten percent of the 1858 reservation lands remains "in Indian
hands," 118 S. Ct. at 804, and that within the original exterior reservation boundaries,
there are only 30,000 acres held in trust for individual Indians, and 6,000 acres of "tribal
lands," id. at 796.

       References in the briefs in these cases and in judicial opinions are not always clear
about what is meant by trust land. The term is variously used to include 1) the land
reserved to the federal government in the 1894 Act and later returned to the Yankton
Tribe, 2) land allotted to individual Indians that remains held in trust, and 3) land taken
into trust under the Indian Reorganization Act of 1934. Efforts at oral argument to get
precise statements from the parties identifying what trust land remains were unsuccessful.
At this time we hold only that the land reserved to the federal government in the 1894
Act and then returned to the Tribe continues to be a reservation under § 1151(a), and we
leave it to the district court on remand to make any necessary findings relative to the
status of Indian lands which are held in trust.

       The judgments of the district court are affirmed in so far as the court concluded
that the Yankton Sioux Reservation has not been clearly disestablished, but the
judgments are reversed in so far as the court concluded that the 1858 exterior reservation
boundaries remain intact and that all nonceded lands remain part of the reservation. The
permanent injunctions entered by the district court are vacated, and the cases are
remanded for further proceedings consistent with this opinion.




                                            39
A true copy.

      Attest:

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




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