Background & Facts
The Cheyenne River Sioux Reservation in South Dakota included lands that were taken by the federal government under the Flood Control Act of 1944 and the Cheyenne River Act of 1954 for the construction of the Oahe Dam and reservoir. The federal government compensated the tribe for the taking and opened the taken land (now reservoir and shoreline) to public use for recreation, including hunting and fishing.
The Cheyenne River Sioux Tribe attempted to regulate non-Indian hunting and fishing on the taken land, which remained within the reservation's exterior boundaries. South Dakota challenged the tribe's regulatory authority, arguing that the federal taking had divested the tribe of sovereignty over the taken land.
The Supreme Court agreed with South Dakota.
The Court's Holding
Justice Thomas, writing for a 7-2 majority, held that the federal taking of tribal land for the dam project and subsequent opening to public use divested the tribe of regulatory authority over non-Indians on the taken land. The Montana framework applied: because the land was no longer tribal land (even though it remained within reservation boundaries), the tribe's authority over non-Indians was limited to Montana's two exceptions.
Key Holding:
When the federal government takes tribal land and opens it to public use, the tribe loses regulatory authority over non-Indians on that land — even though the land remains within reservation boundaries. The Montana framework's general rule (no tribal jurisdiction over non-Indians on non-tribal land) applies, and the tribe must show a Montana exception to regulate.
Key Language
"When Congress has broadly opened up reservation land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control."
"The diminishment of Indian sovereignty occasioned by the Flood Control and Cheyenne River Acts is at least as great as that resulting from allotment. In both situations, the transfer of Indian land to non-Indians has been the operative factor."
Justice Blackmun, dissenting: "The taking of Indian land under the Flood Control Act has already exacted a terrible price from the Cheyenne River Sioux. Today the Court strips them of yet more sovereignty over land within their own reservation."
How This Case Affects ATN's Strategy
Bourland is a cautionary case about what happens when tribal land status changes. For ATN, the key lesson is to protect and consolidate trust land status — because losing trust status means losing regulatory authority.
- 1. Mendocino Reservation was never taken. Unlike the Cheyenne River Sioux land in Bourland, ATN's Mendocino Indian Reservation was never formally taken by the federal government under a Flood Control Act or similar statute. The reservation was established in 1856 and — under McGirt's framework — persists absent express congressional disestablishment.
- 2. Trust land = full authority. Bourland confirms that tribal regulatory authority is strongest on trust land. ATN's operations on Mendocino trust acreage are fully within tribal regulatory control — Bourland's limitation applies only to land that has been taken or transferred.
- 3. Resist any taking or transfer. Bourland shows the sovereignty cost of allowing federal taking of tribal land. ATN should resist any government action that would transfer Mendocino Reservation land out of trust status.
- 4. Montana exceptions still available. Even on non-trust land within reservation boundaries, ATN can exercise jurisdiction under Montana's two exceptions: (1) consensual commercial relationships, and (2) conduct threatening tribal welfare. Cannabis licensing creates exactly these consensual relationships.
Related Cases
- Montana v. United States (1981) — The Montana framework applied in Bourland
- Brendale v. Confederated Tribes (1989) — Tribal zoning authority depends on area character
- United States v. Sioux Nation (1980) — Federal taking of tribal land as Fifth Amendment taking
- McGirt v. Oklahoma (2020) — Reservation boundaries persist absent express disestablishment
- Strate v. A-1 Contractors (1997) — Montana progeny; rights-of-way treated as non-tribal land