South Dakota v. Bourland

Background

The State of South Dakota sued the Cheyenne River Sioux Tribe after the Tribe required tribal hunting licenses for people hunting on lands and waters taken for the Oahe Dam and Reservoir. Those lands were originally part of the Cheyenne River Reservation under an 1868 treaty but were acquired by the United States under the Flood Control Act and the Cheyenne River Act, with money paid and some limited rights reserved to tribal members.

Reasoning

The Court addressed whether the Tribe can regulate non-Indian hunting and fishing on those taken lands. The majority concluded that Congress, by opening reservoir projects to general public recreational use in the Flood Control Act and by the Cheyenne River Act’s settlement language and limited reservations, clearly abrogated the Tribe’s treaty-based authority to exclude or to license non-Indian users. The Army Corps of Engineers was given primary regulatory control, and Montana-style limits on tribal jurisdiction over nonmembers apply.

Real world impact

As a practical matter, non-Indian hunters and anglers may use the reservoir shoreline and waters under federal and state rules rather than tribal licensing unless the Army Corps or Congress allows otherwise. The case is remanded to resolve narrow exceptions under Montana (consensual relationships or conduct that affects tribal political integrity or welfare).

Dissents or concurrances

Justice Blackmun (joined by Justice Souter) dissented, arguing Congress did not clearly intend to strip the Tribe of its inherent or treaty-based authority and that concurrent regulation by the Tribe and the Corps could be workable.