CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA.
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 460.
MR. JUSTICE STEWART delivered the opinion of the Court.
These two cases, consolidated for decision, raise the single question whether the Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty between the United States and the Sisseton and Wahpeton bands of Sioux Indians, was terminated and returned to
the public domain, by the Act of March 3, 1891, c. 543, 26 Stat. 1035. In each of the two cases, the South Dakota courts asserted jurisdiction over members of the Sisseton-Wahpeton Tribe for acts done on lands which, though within the 1867 reservation borders, have been owned and settled by non-Indians since the 1891 Act. The parties agree that the state courts did not have jurisdiction if these lands are "Indian country," as defined in 18 U. S. C. § 1151,*fn1 and that this question depends upon whether the lands retained reservation status after 1891.*fn2 We hold, for the reasons that follow, that the
Act terminated the Lake Traverse Reservation, and that consequently the state courts have jurisdiction over conduct on non-Indian lands within the 1867 reservation borders.
The 1867 boundaries of the Lake Traverse Reservation enclose approximately 918,000 acres of land. Within the 1867 boundaries, there reside about 3,000 tribal members and 30,000 non-Indians. About 15% of the land is in the form of "Indian trust allotments"; these are individual land tracts retained by members of the Sisseton-Wahpeton Tribe when the rest of the reservation lands were sold to the United States in 1891. The trust allotments are scattered in a random pattern throughout the 1867 reservation area. The remainder of the reservation land was purchased from the United States by non-Indian settlers after 1891, and is presently inhabited by non-Indians.
It is common ground here that Indian conduct occurring on the trust allotments is beyond the State's jurisdiction, being instead the proper concern of tribal or federal authorities. In the two cases before us, however, the State asserted jurisdiction over Indians based on conduct occurring on non-Indian, unallotted land within the 1867 reservation borders.
The petitioner in No. 73-1148, Cheryl Spider DeCoteau, is the natural mother of Herbert John Spider and Robert Lee Feather; all are enrolled members of the Sisseton-Wahpeton Tribe. Both children have been assigned to foster homes by order of the respondent District County Court for the Tenth Judicial District of South Dakota. The petitioner gave Robert up for adoption in March of 1971, and Herbert was later separated from her through neglect and dependency proceedings in the respondent court, initiated by the State Welfare Department.
On August 31, 1972, the petitioner commenced a habeas corpus action in a State Circuit Court alleging that the respondent had lacked jurisdiction to order her children separated from her and asking that they be released from the custodial process of the respondent. After a hearing, the state court denied the writ, finding that the respondent had possessed jurisdiction because "the non-Indian patented land, upon which a portion of the acts or omissions giving rise to the Order of the District County Court occurred, is not within Indian Country."*fn3 While acknowledging that this non-Indian patented land is within the 1867 boundaries of the Lake Traverse Reservation, the court noted that the tribe "had sold or relinquished [the non-Indian land in question] to the United States under the terms of the agreement which was ratified by acts of Congress, March 3, 1891." The South Dakota Supreme Court affirmed,*fn4 upon the ground that the 1891 Act ratified an 1889 Agreement by which
"the Sisseton and Wahpeton Bands of Indians sold their unallotted lands, and the United States Government paid a sum certain for each and every acre
purchased. . . . This, then, was an outright cession and sale of lands by the Indians to the United States. The land sold was separated from the reservation by Congress and became part of the public domain."*fn5
The relators in No. 73-1500 are enrolled members of the tribe who were convicted in South Dakota courts of various violations of the State's penal laws committed on non-Indian lands within the 1867 reservation boundaries. The relators, in the custody of a state penitentiary, separately petitioned for writs of habeas corpus in the United States District Court for the District of South Dakota, alleging that the state courts had lacked criminal jurisdiction over their conduct within the 1867 reservation boundaries. The District Court summarily denied the petitions, but the Court of Appeals for the Eighth Circuit reversed.*fn6 In DeMarrias v. South Dakota, 319 F.2d 845, that court had previously held that the 1891 Act had terminated the Lake Traverse Reservation, leaving only allotted Indian lands within tribal or federal jurisdiction. But in the present case the Court of Appeals overruled its DeMarrias decision, finding it inconsistent with the principles of statutory construction established by this Court in Mattz v. Arnett, 412 U.S. 481, and Seymour v. Superintendent, 368 U.S. 351. The Court of Appeals accordingly held that "[the] boundaries of the Lake Traverse Indian reservation remain as they were established in 1867. The scene of the alleged crimes is, therefore, within Indian country. South Dakota had no jurisdiction to try appellants." 489 F.2d 99, 103.
We granted certiorari in the two cases, 417 U.S. 929, to resolve the conflict between the Supreme Court of South Dakota and the Court of Appeals for the Eighth Circuit
as to the effect of the 1891 Act on South Dakota's civil and criminal jurisdiction over unallotted lands within the 1867 reservation boundaries.
When the Sioux Nation rebelled against the United States in 1862, the Sisseton and Wahpeton bands of the Nation remained loyal to the Federal Government, many members serving as "scouts" for federal troops. This loyalty went unrecognized, however, when the Government confiscated the Sioux lands after the rebellion. In a belated act of gratitude, the United States entered into a treaty with the Sisseton-Wahpeton Tribe in 1867. The treaty granted the tribe a permanent reservation in the Lake Traverse area, and provided for tribal self-government under the supervision of federal agents.*fn7
But familiar forces soon began to work upon the Lake Traverse Reservation. A nearby and growing population of white farmers, merchants, and railroad men began urging authorities in Washington to open the reservation to general settlement. The Indians, suffering from disease and bad harvests, developed an increasing need for cash and direct assistance.*fn8 Meanwhile, the Government
had altered its general policy toward the Indian tribes. After 1871, the tribes were no longer regarded as sovereign nations, and the Government began to regulate their affairs through statute or through contractual agreements ratified by statute.*fn9 In 1887, the General Allotment Act (or Dawes Act) was enacted in an attempt to reconcile the Government's responsibility for the Indians' welfare with the desire of non-Indians to settle upon reservation lands.*fn10 The Act empowered the President to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to white settlers, with the proceeds of these sales being dedicated to the Indians' benefit. See Mattz v. Arnett, 412 U.S., at 496-497.
Against this background, a series of negotiations took place in 1889 with the objective of opening the Lake
Traverse Reservation to settlement. In April of that year, a South Dakota banker, D. W. Diggs, sent to the Secretary of the Interior a request on behalf of the local white community that reservation lands be made available for commerce, farming, and railroad development.*fn11 In May, Diggs met with a council of tribal leaders, who told him that the tribe would consider selling the reserved lands if the Government would first pay a "loyal scout claim" which the tribe believed was owing as part of the 1867 Treaty. Spokesmen for the tribe were quoted in the local press that month as follows:
"We never thought to keep this reservation for our lifetime.
". . . Now that South Dakota has come in as a state we have some one to go to, to right our wrongs. The Indians have taken their land in severalty. They are waiting for patents. The Indians are anxious to get patents. We are willing the surplus land should be sold. We don't expect to keep reservation. We want to get the benefit of the sale. If the government will pay what they owe, we will be pleased with the opening. There will be left over allotments 880,000 acres. If the government pays what they owe, and pay what they agree per acre, we will be pleased with the opening. When the government asks me to do anything, I am always willing to do it. I hope you will try to get the government to do what is right.
"If the government will do this, it will benefit both the Indians and the whites [and illustrates by holding up half a dozen keys [in a] perpendicular position, separately], we all stand this way [and
then, pressing them against each other], we will be as one key. When the reservation is open we meet as one body. We be as one.
". . . If we get the money we will open up. Your committee needn't be discouraged, we will open up.
". . . We are anxious to become citizens and vote. We have laid before you all we have to say from our hearts. . . ."*fn12
By summer, the Commissioner of Indian Affairs had apparently been won over, for in August 1889, he sent to the Secretary of the Interior a set of draft instructions for the guidance of a Commission to negotiate with the Sisseton and Wahpeton Indians for the sale of their surplus lands.*fn13 The instructions noted that the negotiations would be pursuant to § 5 of the General Allotment Act, that the allotment of individual tracts of reservation land to tribal members was already "virtually . . . completed," and that "the Indians desire to sell a portion at least of their surplus [ i. e., unallotted] lands."
While these proposed instructions suggested that sale of all the surplus lands might be "inadvisable," the negotiations in fact proceeded toward such a total sale. The three Government representatives*fn14 were appointed in November, and two weeks of meetings at the reservation promptly ensued. The proceedings at these meetings
were transcribed,*fn15 and the records show that the Indians wished to sell outright all of their unallotted lands, on three conditions: that each tribal member, regardless of age or sex, receive an allotment of 160 acres; that Congress appropriate moneys to make good on the tribe's outstanding "loyal scout claim"; and that an adequate sales price per acre be arrived at for all of the unallotted land.*fn16
In December, an Agreement was reached and the contract was signed by the required majority of male adult tribal members. Its terms*fn17 were accurately summarized
by the Commissioner of Indian Affairs in his report to the Secretary of the Interior:*fn18
"By article 1, the Indians cede, sell, relinquish, and convey to the United States all the unallotted land within the reservation remaining after the allotments and additional allotments provided for in article 4 shall have been made.
"Article 2 provides that the United States will pay to the Indians $2.50 per acre for the lands ceded.
"Article 3 provides for the payment of back annuities, and continues the annuities of $18,400 until July 1, 1901.
"Article 4 provides for the equalization of allotments so that each person, including married women, shall have 160 acres."
President Harrison immediately submitted the Agreement to Congress for legislative approval. While the
subsequent legislative history is largely irrelevant to the issues before us, three aspects bear notice. First, the several committee reports which commented on the Agreement recognized that it effected a simple and unqualified cession of all of the unallotted lands to the United States for a sum certain.*fn19 Second, the Congress recognized that the Agreement could not be altered, and therefore debate centered largely on the disposition to be made by the United States of the lands it had acquired under the Agreement; it was decided that these lands
should be sold to settlers at $2.50 per acre under the homestead laws.*fn20 Third, the Congress included the Sisseton-Wahpeton Agreement in a comprehensive Act which also ratified several other agreements providing for the outright cession of surplus reservation lands to the Government.*fn21 The other agreements employed cession language virtually identical to that in the Sisseton-Wahpeton Agreement, but in these other cases the Indians sold only a described portion of their lands, rather than all "unallotted" portions, the result being merely a reduction in the size of the affected reservations.*fn22 The intended effect of all of these ratification
agreements was made clear by the sponsors of the comprehensive legislation:
"All the pending agreements or treaties for the purchase of Indian lands are ratified and confirmed by the ...