South Dakota's 2009 SB 119 lets townships, counties, and the state transfer highway rights-of-way to Indian tribes or the Bureau of Indian Affairs. In Flandreau Township, a section-line road runs through tribal lands of the Flandreau Santee Sioux Tribe. Can the township use SB 119 to give the right-of-way to the tribe or BIA so they'll pave it? What does the transfer agreement need to say? What happens to speed-limit enforcement, criminal jurisdiction, and the township's liability after the transfer? Is there a smarter alternative?

Plain-English summary

In 2009 the South Dakota Legislature passed SB 119, which let the state's Department of Transportation, counties, and townships transfer the rights-of-way of public highways to federally recognized Indian tribes or to the Bureau of Indian Affairs (BIA). The idea was practical. In many parts of South Dakota, public roads cross checkerboard land patterns where tribal-fee land, allotted land, reservation land, and non-Indian fee land are interlaced. The local township might own the right-of-way for the road but lack the resources to pave it. The tribe or BIA might be willing to pay for paving but historically had no clear way to take responsibility for the road absent some kind of legal handover.

SB 119 created a handover mechanism. It enacted SDCL 31-19-63.1 and amended SDCL 31-19-63 and -64. The mechanism was: a township, county, or the state could, by mutual agreement with a tribe or the BIA, transfer "any highway right-of-way" to that tribe or to the BIA, if the local governing body found the transfer to be in the best interest of the public.

Flandreau Township in Moody County had section-line roads running around Section 10, T107N R48W. Section 10 had complicated land status: most of the section was "reservation" under a 25 USC § 467 declaration by the Secretary of Interior, but the southeast quarter was fee land held by the Flandreau Santee Sioux Tribe, not "reservation" status. The township roads on the section-line highways were maintained by the township. The Tribe and BIA were interested in taking over the roads and paving them. Township Attorney Jay Leibel asked AG Marty Jackley for guidance.

Jackley gave a six-part answer.

On whether transfer was the only way to cooperate (Q1): No. SDCL ch. 1-24 allowed joint powers agreements. A tribe or the BIA could provide funding or labor to the township under a JPA without the township having to give up the right-of-way at all. The JPA route avoided most of the jurisdictional snarls that SB 119 created. The AG strongly hinted that JPA was the preferable structure in many cases.

On whether SB 119 authorized transfer of section-line rights-of-way (Q2): Yes. "Any highway right-of-way" was broad enough to include section-line highways. The Legislature has plenary power over state highways and may delegate that power. The transferring entity could convey only what it held: section-line rights-of-way were 66 feet wide, with the underlying fee in the adjacent landowner subject to the public's highway easement. The transferring entity could not convey ownership of the soil itself, only the highway easement.

On what the "mutual agreement" should contain and what "best interest of the public" meant (Q3): The agreement needed to recite the public-highway purpose. It needed a legal description of the right-of-way, expressly limited to 66 feet. It should expressly state that only the authority to construct, improve, and maintain a public highway was being conveyed, and include a reversion if the land ceased to be used for highway purposes. The deed itself should include the reversionary language. The agreement should preserve existing utility easements: SDCL 31-19-60 forbids any "reversion, sale, or disposition of any highway" from diminishing existing utility rights of use, and SDCL 31-26-1 lets counties grant utility easements along public highways. The agreement should require the tribe or BIA to accept state traffic-control laws as applicable, to indemnify the grantor, and to waive sovereign immunity in South Dakota state courts for purposes of enforcing the agreement. "Best interest of the public" meant that the decisionmaker (the DOT, county commission, or township board) had to weigh transportation needs, safety, environment, and the practical effect on the public users of the road. If the receiving entity would need more than the 66-foot right-of-way to make actual improvements, the decisionmaker had to think about how the tribe or BIA would get that additional access (tribes lack the power to condemn outside their associated Indian country, and lack the power to condemn non-Indian land even within reservations; the United States has broad condemnation power).

On traffic control after transfer (Q4): SB 119 did not address it. The transferring state entity's authority to regulate traffic would cease and the receiving entity's would start, but the receiving entity here was a tribe or the BIA, both of which are not state entities. SB 119 did not authorize tribes or the BIA to regulate traffic on a transferred state highway. Yet state traffic laws (speed limits, signage standards, etc.) still applied at minimum to non-Indians at all locations, so the road did not become a regulatory void. The agreement should specify that the grantee agreed that state traffic-control laws remained applicable, would erect signs, place pavement markings, and perform other traffic-control activities in accordance with state law, and would accept liability for failing to do those things properly. Speed-limit enforcement raised a particular wrinkle: SDCL 32-25-1.1 and 32-25-7 set state speed limits, applicable at least to non-Indians on roads at all locations including Indian country, while a tribe or the BIA might set a different limit applicable to tribal members within Indian country. Two different speed limits on the same stretch of road, depending on the driver's tribal membership, was a real and uncomfortable possibility. The agreement could mitigate this by having the tribe or BIA adopt the state's speed limit.

On civil and criminal jurisdiction after transfer (Q5): The transfer did not change criminal or civil jurisdiction over persons. SDCL ch. 1-1 sets out the requirements for transfers of jurisdiction, and SB 119 did not contain the express cession language those statutes require. The same answer follows from federal Indian-country doctrine. "Indian country" is defined by 18 USC § 1151 and includes reservation land, dependent Indian communities, and allotments where Indian titles have not been extinguished. The land's status as "Indian country" or not determines which sovereign has jurisdiction over what persons. A right-of-way transfer under SB 119 does not "create Indian country." If Section 10 was already reservation under a 25 USC § 467 proclamation, transfer of the highway right-of-way did not change that. If part of Section 10 (the SE¼ fee land held by the Tribe) was not reservation, transfer of the highway right-of-way did not convert it into reservation. Tribes generally have no criminal jurisdiction over non-Indians on reservations (per Plains Commerce Bank (2008)) and limited civil jurisdiction over non-Indians on reservations. They have criminal jurisdiction over their own members, and over non-member Indians (per congressional response to Duro v. Reina (1990) at 25 USC §§ 1301(2) and (4), validated in some respects in United States v. Lara (2003)). A tribe's civil jurisdiction claim over non-Indians might be marginally strengthened by holding the right-of-way (this is the inference, in reverse, from Strate v. A-1 Contractors (1997), where the Supreme Court treated a state-held right-of-way on a reservation as "alienated to non-Indians" for purposes of limiting tribal jurisdiction). For an off-reservation transfer that was once within a former reservation (e.g., Bennett County, where the former reservation status was diminished by federal law and confirmed in United States ex rel. Cook v. Parkinson (1975)), nothing changed. For a transfer within a current reservation (Todd County or Shannon County), the land was already Indian country and stayed Indian country, regardless of who held the right-of-way. Solem v. Bartlett (1984) supported that consistent treatment.

On liability after transfer (Q6): If the transfer was proper and the transferring entity retained no duty over road construction, maintenance, signage, or other functions, the transfer should relieve the township, county, or DOT of associated liability. But a court might disagree. To handle this risk, the agreement should expressly include language transferring liability and providing indemnification by the grantee. The transferring entity would retain liability for utility and telecommunications-line activities in the right-of-way, because SDCL 31-19-60 preserved utility rights of use across any reversion or transfer, and the transferring entity remained the licensor of utilities.

The AG closed with a strong general recommendation: SB 119 was a working tool but a complicated one. Joint powers agreements under SDCL ch. 1-24 sidestepped most of the jurisdictional and liability issues by keeping the right-of-way with the township while letting the tribe or BIA contribute resources to maintain and improve the road. In many instances the JPA path would be the more provident one, particularly when the practical goal was cooperative road maintenance rather than a clean handoff of an entire roadway segment.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Federal Indian-country law in particular has evolved since 2010 (notably McGirt v. Oklahoma (2020) and its progeny), and the practical effect of right-of-way transfers under SB 119 may look different today. Anyone considering a transfer should consult current tribal, federal, and state authorities.

What the opinion meant at the time

For Flandreau Township and other South Dakota townships with similarly situated section-line roads near reservations or tribal-fee lands, the opinion offered both an authorization and a caution. SB 119 authorized the transfer, including transfer of section-line right-of-way, but the AG strongly preferred a joint powers agreement structure in many cases because it avoided creating jurisdictional ambiguity.

For counties considering transfers of more substantial county-road rights-of-way, the same calculus applied. A transfer was lawful but came with extensive drafting requirements: a 66-foot scope limitation, a reversionary clause, preservation of utility easements, acceptance of state traffic laws by the grantee, indemnification, and a sovereign-immunity waiver in South Dakota courts. Each of those provisions had to be hammered out in negotiation with the grantee tribe or BIA, and each of them was a potential negotiation hurdle.

For the South Dakota Department of Transportation, the opinion provided a template for how DOT-level transfers would work if they ever came up. DOT's existing transfer practice (negotiate written agreement, submit to the Transportation Commission for approval) translated to SB 119.

For tribal road departments and the BIA, the opinion clarified what the SD AG expected to see in any transfer agreement. The tribe or BIA could not get a transfer that converted the road into "Indian country" by operation of law, could not avoid state traffic-control laws as applied to non-Indians, and would need to accept either state speed limits or a similar regime as part of the agreement. The BIA's assertion (under 25 CFR § 170.120(c)) that any "public authority having jurisdiction" over a reservation-area road might be the tribe or BIA was a potential complication, and the AG suggested the transfer agreement address it explicitly to avoid a jurisdictional fight.

For utility companies with existing lines in the affected rights-of-way, the opinion was reassuring. SDCL 31-19-60 preserved utility rights of use across any reversion or transfer. The agreement could not eliminate existing utility easements. New utility line placement after a transfer would proceed under the same legal regime as before.

For township supervisors and county commissioners considering whether to transfer under SB 119, the practical takeaway was: yes, it was legal, but it was complicated, and a joint powers agreement under SDCL ch. 1-24 was often a cleaner option. If the goal was just to get the road paved with tribal or BIA resources, the JPA route did not require giving up the right-of-way.

For private-property owners along affected section lines, the underlying property right was unchanged. South Dakota Constitution Article VI § 13 provides that the fee of land taken for highways remains in the original owner. Section-line highways were 66 feet of public easement, not 66 feet of fee. The underlying owner's rights to the soil and any reversion if the highway was vacated remained intact under a SB 119 transfer.

Common questions

Q: What did SB 119 actually authorize?
A: The transfer, by mutual agreement, of "any highway right-of-way" from the state DOT, a county, or a township to a federally recognized Indian tribe or to the BIA. Codified as SDCL 31-19-63.1, with related amendments to SDCL 31-19-63 and -64.

Q: Did the transfer include section-line highways?
A: Yes. "Any highway right-of-way" was broad enough to include section-line highways under SDCL ch. 31-18.

Q: What was the deed transferring?
A: Only the highway easement, not the underlying fee. The right-of-way for a section-line highway is 66 feet, 33 feet on each side of the section line, taken as a public-highway easement under the Highway Act of 1866 and SDCL ch. 31-18. The underlying fee remains with the original landowner subject to the highway easement.

Q: Was there a joint powers agreement alternative?
A: Yes, under SDCL ch. 1-24. A JPA let the township keep the right-of-way while letting the tribe or BIA provide funding and labor to maintain and improve the road. The AG strongly recommended considering the JPA route in many cases.

Q: What happened to existing utility easements after a transfer?
A: They were preserved. SDCL 31-19-60 expressly forbade any "reversion, sale, or disposition of any highway" from diminishing any existing utility right of use. SDCL 31-26-1 continued to govern county authority to grant new utility easements.

Q: Did civil or criminal jurisdiction change?
A: No. A right-of-way transfer under SB 119 did not change civil or criminal jurisdiction over persons on the road. SDCL ch. 1-1 requires express cession language for transfers of jurisdiction, which SB 119 did not contain. Federal Indian-country law (18 USC § 1151) determines jurisdiction based on the land's status, and the transfer did not change the land's status.

Q: What about speed limits?
A: State speed limits (SDCL 32-25-1.1, 32-25-7) continued to apply at minimum to non-Indians at all locations. A tribe or the BIA might set different speed limits applicable to tribal members within Indian country. Two simultaneous speed limits on the same stretch of road were a real possibility unless the agreement had the tribe or BIA adopt state limits.

Q: Could the township get rid of all liability by transferring?
A: Mostly yes, if the agreement was properly drafted. An indemnification clause from the grantee was strongly recommended. The transferring entity retained some residual liability for utility-related activities and could face a court ruling that retained some construction or maintenance duty despite the transfer. Indemnification protected against that.

Q: Did the transfer make the road "Indian country"?
A: No. "Indian country" is a status defined by 18 USC § 1151. A right-of-way transfer under SB 119 did not create Indian country. Off-reservation transfers stayed off-reservation. On-reservation transfers stayed on-reservation.

Q: What was the recommended decision framework?
A: Consider whether a joint powers agreement under SDCL ch. 1-24 would accomplish the practical goal (cooperative road maintenance) without the complications of a transfer. If a transfer was still preferred, draft the agreement to expressly limit scope to 66 feet, include a reversion, preserve utility easements, require the grantee to accept state traffic laws, and obtain indemnification and a sovereign-immunity waiver in SD state courts.

Background and statutory framework

Section-line highways are a quirky South Dakota land-use feature with deep historical roots. The Highway Act of 1866 (R.S. § 2477, 43 USC § 932, repealed 1976 but pre-existing rights vest) granted a right of way for the construction of highways over public lands not reserved for public use. The Territorial Legislature of 1870-71 accepted that grant: "all section lines in this territory shall be and are hereby declared public highways as far as practicable." A homesteader on public land took the land subject to the section-line right-of-way for public highways (Wells v. Pennington County (1891)). Public highways along section lines were declared to be 66 feet wide, taken equally from each side of the section line. Underlying property owners had property rights in the rights-of-way that ripened into actual possession when the rights-of-way were formally vacated (Costain v. Turner County (1949)). When SB 119 was enacted in 2009, every section line in the state where the highway had not been formally vacated remained a 66-foot public-highway easement.

The Legislature has plenary power over highways (Hurley v. City of Rapid City (1963)) and has delegated that power among the DOT, counties, and townships (SDCL 31-1-5). SB 119 authorized those entities to transfer the highway easements to tribes or the BIA, subject to the constraint that transfer was for "highway purposes" and was in the "best interest of the public."

The interaction with Indian-country jurisdiction was the heart of the AG's concern. Federal law (18 USC § 1151) defines "Indian country" as (a) all land within an Indian reservation, (b) all dependent Indian communities, and (c) all Indian allotments where Indian titles have not been extinguished. Jurisdiction over persons within Indian country is divided among the federal, state, and tribal sovereigns under a complex framework: tribes have criminal jurisdiction over their members (and now over non-member Indians per 25 USC §§ 1301(2) and (4)) but generally not over non-Indians (Plains Commerce Bank (2008)); states have criminal jurisdiction over non-Indians within Indian country, and over crimes by non-Indians against non-Indians; the federal government has its own jurisdiction defined by the Major Crimes Act and General Crimes Act. None of this is changed by a state right-of-way transfer under SB 119, because the transfer does not alter the underlying land's "Indian country" status.

Civil jurisdiction is similarly complex but rests on similar principles. Strate v. A-1 Contractors (1997) held that a state-held right-of-way on a reservation was treated like "land alienated to non-Indians" for purposes of limiting tribal civil jurisdiction over non-Indians. The reverse inference is that tribal ownership of a right-of-way might strengthen a tribal jurisdictional claim, although the AG cautioned that this was an unsettled inference.

The transfer mechanism in SB 119 was useful but partial. SB 119 did not:
- expressly cede state jurisdiction to a tribe or the federal government,
- authorize tribal or BIA traffic regulation on the transferred right-of-way,
- alter existing utility easements,
- transfer the underlying fee (only the easement),
- relieve the transferring entity of liability automatically.

Each of those gaps had to be addressed by careful drafting of the transfer agreement. The AG's six-question analysis was effectively a checklist for drafting one.

The opinion also noted the BIA's regulatory framework at 25 CFR § 170.5 and § 170.120(c), which lets the BIA designate the "public authority having jurisdiction" over a reservation-area road. The BIA's assertion of authority under that regulation could, in some cases, sweep in roads transferred under SB 119, creating a jurisdictional conflict. The AG recommended that the transfer agreement address the applicability of 25 CFR § 170.120 to avoid this kind of conflict.

The bottom-line guidance was twofold: (1) SB 119 worked but required careful drafting and contemplated significant remaining ambiguity, particularly around traffic control and jurisdiction; (2) for many practical purposes, a joint powers agreement under SDCL ch. 1-24 was a cleaner alternative that gave the tribe or BIA a meaningful role in road maintenance and improvement without requiring a transfer of the right-of-way.

Citations and references

Statutes and regulations:
- 2009 SB 119 (2009 SL ch. 147)
- SDCL 31-19-63, -63.1, -64 (SB 119 codification)
- SDCL ch. 31-18 (section line highways)
- SDCL 31-18-1, 31-18-2 (66-foot width)
- SDCL 31-1-1 (highways)
- SDCL 31-1-5 (delegation)
- SDCL ch. 1-24 (joint powers)
- SDCL 1-24-3, 1-24-4 (approval, contents)
- SDCL 31-19-1, 7-18-9, 8-2-1(1) (eminent domain)
- SDCL 31-19-60 (utility preservation)
- SDCL 31-26-1 (county utility easements)
- SDCL 2-14-2 (Indian tribe definition)
- SDCL ch. 1-1; 1-1-1 (state jurisdiction; cession requirements)
- SDCL 32-14 through 32-35 (traffic regulation)
- SDCL 32-14-3 (delegation)
- SDCL 32-25-1.1, 32-25-7 (speed limits)
- Highway Act of 1866 (R.S. § 2477, 43 USC § 932)
- 25 USC § 467 (reservation proclamation)
- 25 USC § 357 (federal condemnation of allotted lands)
- 25 USC §§ 1301(2), (4) (tribal criminal jurisdiction)
- 18 USC § 1151 (Indian country)
- 25 CFR § 170.5, § 170.120(c) (BIA road program)
- 40 USC §§ 3113-3114 (federal condemnation)
- S.D. Const. art. VI § 13

Cases:
- Lawrence v. Ewert, 114 N.W. 709 (S.D. 1908)
- Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366 (S.D. 1978)
- Hurley v. City of Rapid City, 121 N.W.2d 21 (S.D. 1963)
- Keen v. Board of Supervisors of Fairview Township, 67 N.W. 623 (S.D. 1896)
- Wells v. Pennington County, 48 N.W. 305 (S.D. 1891)
- Costain v. Turner County, 36 N.W.2d 382 (S.D. 1949)
- Metropolitan Life Ins. Co. v. Kinsman, 2008 S.D. 24, 747 N.W.2d 653
- Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S.Ct. 2709 (2008)
- State v. Moschell, 2004 S.D. 35, 677 N.W.2d 551
- DeCoteau v. District Court, 420 U.S. 425 (1975)
- Duro v. Reina, 495 U.S. 676 (1990)
- United States v. Lara, 541 U.S. 193 (2003)
- Strate v. A-1 Contractors, 520 U.S. 438 (1997)
- United States ex rel. Cook v. Parkinson, 525 F.2d 120 (8th Cir. 1975)
- Solem v. Bartlett, 465 U.S. 463 (1984)
- South Dakota AGO 87-42 (cross-reference for section-line highway history)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=770
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2010-02.pdf

Original opinion text

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL

February 23, 2010

Jay M. Leibel
Flandreau Township Attorney
Arneson, Issenhuth, Leibel & Parent, LLP
P.O. Box 28
Madison, SD 57042-0028

OFFICIAL OPINION NO. 10-02

Transfer of rights-of-way to tribes and the BIA pursuant to 2009 SB 119

Dear Mr. Leibel:

You requested an Official Opinion regarding 2009 SB 119, codified as part of SDCL ch. 31-19.

FACTS:

Section 10, T107N, R48W in Flandreau Township is served on the west by a state highway, with the remaining three sides bordered by Flandreau Township roads located on statutory section line highways. These gravel roads are maintained by the Township. All but the SE¼ of Section 10 has "reservation" status pursuant to a declaration of the Secretary of Interior under 25 USC § 467. Most of the SE¼ of Section 10 is owned by the Flandreau Santee Sioux Tribe in fee, and is not subject to "reservation" status.

The Flandreau Santee Sioux Tribe, Bureau of Indian Affairs (BIA), and Flandreau Township have discussed transfer of the responsibility for maintenance of these roads to the Tribe or BIA. The Township anticipates that the Tribe or BIA would pave the roads to provide better service to residents. The parties discussed transfer of "title" to the rights-of-way of the section line highways under 2009 SB 119, or execution of a joint powers agreement transferring responsibility for construction, repair and maintenance of the roads.

In 2009, the Legislature enacted Senate Bill 119, which inter alia provides authority to the state, counties, and townships to transfer interests in highway rights-of-way to tribes and the federal government, under certain conditions. SB 119 is found in 2009 SL ch. 147. It enacts SDCL 31-19-63.1 and amends SDCL 31-19-63 and -64.

As the issues presented by your questions may have broader application throughout the state, I have with your concurrence reframed the questions as follows:

QUESTIONS:

1. Is a transfer of a right-of-way under SB 119 the only method of cooperating to improve the maintenance of township, county or state roads?

2. Does SB 119 authorize a township, county or state section line right-of-way to be transferred to a tribe or the Bureau of Indian Affairs?

3. SB 119 requires that any transfer be upon "mutual agreement" between the township, county or state, and the tribe or federal government. What issues should the mutual agreement address? What does the "best interest of the public" mean?

4. How does a transfer of a right-of-way under SB 119 affect traffic control?

5. How does a transfer under SB 119 affect the civil and criminal jurisdiction of the state, federal or tribal courts?

6. If a transfer of a right-of-way is made by a township (or the South Dakota Department of Transportation (DOT) or a county) to the Tribe or the BIA, would that transfer relieve the township (or the DOT or county) of liability?

ANALYSIS

Section line highways, authorized in SDCL ch. 31-18, have their origin in the 1866 Congressional declaration that "[t]he right of way for construction of highways over public lands not reserved for public use, is hereby granted." Highway Act of 1866, R.S. § 2477, 43 USC § 932 (1970), repealed 90 Stat. 2744, 2793 (1976). See AGO 87-42. The Territorial Legislature declared "that hereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable." Laws of 1870-71 p. 519, c. 33 (Jan. 12, 1871). Counties were given the power to vacate or change the highways. Lawrence v. Ewert, 114 N.W. 709, 710 (S.D. 1908) (quoting Rev. Codes of 1877, p. 125, c. 29). The term "public highway" has been determined by the courts to be a highway open to the use of "all the world." Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366, 369 (S.D. 1978).

A governmental body's authority over a section line right-of-way is restricted to the power to construct, improve, and maintain a road for public use. Highway Act of 1866, supra ("The right of way for construction of public highways . . . is granted."). The 1877 Territorial Legislators provided that the "public highways along section lines . . . shall be 66 feet wide and shall be taken from each side of said lines unless changed as provided in the preceding section." See Lawrence, 114 N.W. at 710 (quoting Rev. Codes of 1877, p. 125, c. 29); SDCL §§ 31-18-1 and 31-18-2.

Improvements to roads may require access to lands beyond the 66 foot right-of-way. The DOT, counties, and townships have broad rights of condemnation. The South Dakota Constitution, Article VI, Section 13 provides for the taking of private property with "just compensation"; it also provides that the "fee of land taken for . . . highways shall remain in such owners, subject to the use for which it is taken." See also SDCL §§ 31-19-1 (DOT), 7-18-9 (counties), and 8-2-1(1) (townships). Condemnation powers under state law are not impeded on non-Indian land within "reservations" as defined by 18 USC § 1151(a). "Allotted" lands may be condemned by the state in federal court. 25 USC § 357.

A critical effect of the 1866 federal act and the Territorial legislation is that a homesteader on public land took his land subject to the section line right-of-way for public highways. Wells v. Pennington County, 48 N.W. 305, 307 (1891). Owners obtain right-of-way properties upon abandonment of roads. Costain v. Turner County, 36 N.W.2d 382, 383 (S.D. 1949). See also Arthur Rusch, Douville v. Christensen—An Answer to the Issue of Township Responsibility for the Improvement of Section Line Rights of Way, 48 S.D. L. Rev. 247, 249-250 (2003). Thus, underlying property owners have property rights in rights-of-way that ripen into actual possession when rights-of-way are formally vacated.

Question 1: Is a transfer of a right-of-way under SB 119 the only method of cooperating to improve the maintenance of township, county or state roads?

No. A road maintenance agreement between a township and a tribe or federal agency may be executed under SDCL ch. 1-24. SDCL 1-24-4 delineates the contents of joint powers agreements. Approval of an agreement of the involved governmental units is required. SDCL 1-24-3.

In a joint powers agreement, a tribe or the BIA could provide the Township with financial or other resources to upgrade and maintain the roads. Maintenance duties could be transferred from a township to a tribe, although liability and sovereignty issues would need to be addressed. While a right-of-way can be transferred under SB 119, jurisdictional and other problems not addressed in SB 119 are created. Under many circumstances, a joint powers agreement may be the preferable way to address road maintenance and improvement issues.

Question 2: Does SB 119 authorize a township, county or state section line right-of-way to be transferred to a tribe or the Bureau of Indian Affairs?

The Legislature has plenary power over state highways and may exercise or delegate that power. Hurley v. City of Rapid City, 121 N.W.2d 21, 24 (S.D. 1963). Highways are defined at SDCL 31-1-1. Power over the various state highways have been delegated to DOT and local governments. SDCL 31-1-5.

SB 119 authorizes the transfer of "any highway right-of-way." This broad language includes a highway on a section line right-of-way. See, e.g., Lawrence, 114 N.W. at 710-711; Keen v. Board of Supervisors of Fairview Township, 67 N.W. 623, 625 (S.D. 1896).

SB 119 authorizes the transfer of a right-of-way to a tribe or the federal government. The BIA is an agency of federal government, so SB 119 authorizes a transfer to the BIA. The term "Indian tribe" is defined at SDCL 2-14-2 and includes the nine tribes located in South Dakota and recognized by the federal government. See 73 Fed. Reg. 18,552 (Apr. 4, 2008). SB 119 authorizes the transfer of a right-of-way to these tribes. This opinion does not address either federal or tribal law regarding the authority of the BIA or a tribe to accept the transfer.

Section 3 of SB 119 (SDCL 31-19-64) indicates the state or local government transfers only the interest it holds. That interest is limited as discussed above. As a result, the property interest of the underlying property owner is not affected by a transfer under SB 119. See, e.g., Metropolitan Life Ins. Co. v. Kinsman, 2008 S.D. 24, ¶ 3, 747 N.W.2d 653, 655 ("If possible, we interpret statutes reasonably to find them constitutional and valid."). SB 119, as applied to a section line highway, must be read to transfer the authority over a right-of-way to construct, improve, and maintain a road for use as a public highway.

Section 1 (SDCL 31-19-63.1) and Section 2 (SDCL 31-19-64) of SB 119 restrict a transfer to a tribe or federal government for "highway purposes." Authority to vacate a section line highway is not transferred. A deed transferring a right-of-way should therefore include a reversion clause providing that if the section line highway is no longer used for highway purposes, it reverts to the state or local entity.

In addition, a public highway right-of-way is only "66 feet." A tribe may be unable to access lands beyond 66 feet for road improvement. Tribes lack power to condemn outside of their associated "Indian country," and lack power to condemn non-Indian land even within reservations. See Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S.Ct. 2709 (2008). In contrast, the United States has broad condemnation powers. See 40 USC §§ 3113-3114. The extent to which the United States has used such powers for improvement access beyond a 66 foot right-of-way is not encompassed within the scope of this opinion.

Question 3: SB 119 (SDCL 31-19-63.1) requires that any transfer be upon "mutual agreement" between the township, county or state, and the tribe or federal government. What issues should the mutual agreement address? What does in the "best interest of the public" mean?

SB 119 requires "mutual agreement" between the parties to a transfer under SB 119. The DOT's typical procedure for effectuating a property transfer to a county or township includes the negotiation of a written agreement and then submission to the Transportation Commission for approval. SB 119 appears to contemplate the same process.

SB 119 does not address the appropriate content of the "mutual agreement," but similar DOT agreements and the challenges raised by SB 119 suggest the following.

Most DOT agreements contain sections explaining the context and purposes of the agreement. SB 119 provides that conveyance of a right-of-way shall be "held by the grantee for public highway purposes," and that purpose should be stated. SB 119, §§ 1 and 2 (SDCL 31-19-63 and -63.1).

An agreement must contain the legal description of the right-of-way being transferred. If a section line right-of-way is being transferred, the agreement should describe the right-of-way as 66 feet in width, taken equally from both sides of the road. The agreement should express that it is conveying only the authority to construct, improve, and maintain the road for public highway purposes. The agreement and deed should contain a reversion if the transferred right-of-way ceases to be used for "public highway purposes." I understand Section 3 of SB 119 (SDCL 31-19-64) may appear to pose an obstacle to such a provision as it requires a "deed of conveyance . . . which deed shall vest in the grantee therein all the interest of the grantor in and to the right-of-way so conveyed." As noted above, however, given the limitations in SB 119, §§ 1 and 2 and no showing of the intent to transfer the power to vacate, Section 3 does not prohibit a reversionary clause.

An agreement under SB 119, and the deed itself, is effective only when it is approved by the appropriate authority through adoption of necessary resolution or other action. The agreement should provide that the transfer is contingent upon the required action by each party.

An agreement should include provisions stating that state laws regarding operation of existing utility and telecommunication lines, and the placement of new utility and telecommunication lines, are unaffected by the transfer.

SB 119 does not modify existing law regarding utility and communications lines placed in rights-of-way. SB 119 did not amend SDCL 31-19-60, which states in pertinent part:

No reversion, sale, or disposition of any highway as provided in this chapter may diminish any existing right of use enjoyed by any public utility, municipally-owned utility, or cooperative utility which provides electricity, gas, water, or telephone service.

The Legislature, therefore, did not impair the rights of utilities that have placed their facilities within the highway right-of-way in accordance with state law. A transfer of highway right-of-way under SB 119 is subject to the terms and conditions of any existing utility permit, license, or easement.

Further, the Legislature, in enacting SB 119, did not amend SDCL 31-26-1 authorizing counties to grant utility easements along public highways. Utility line placement on a right-of-way after a SB 119 transfer should not be treated differently than one placed before transfer.

It is possible that other easements, permits or licenses have been granted along a right-of-way. SB 119 does not affect those easements, permits or licenses. An agreement transferring a right-of-way under SB 119 should identify these continuing easements.

An agreement transferring a right-of-way under SB 119 should address the liability of the grantor after the transfer. An indemnity provision would be appropriate. An example of language used in a DOT transfer, containing a waiver of sovereign immunity, is:

The Tribe [BIA] agrees to indemnify and hold the township [county or State], its officers, agents and employees harmless from and against any and all actions, suits, damages, liability, or other proceedings that arise as a result of the Tribe's [BIA's] performance under this Agreement. This section does not require the Tribe [BIA] to be responsible for or defend against claims or damages arising from errors or omissions of the township [county or DOT], its officers, agents or employees. The Tribe [BIA] herewith waives its sovereign immunity in the courts of the State of South Dakota for the purpose of enforcing this agreement.

Section 3 of SB 119 (SDCL 31-19-64) requires that DOT or the "governing body" of a county or township find that the transfer is in the "best interest of the public." This decision should be made as part of the authorizing language of the resolution or other action approving the agreement. Matters such as those set out in the DOT Mission Statement should be considered: "We provide a transportation system to satisfy diverse mobility needs while retaining concern for safety and the environment." A decision maker should consider whether the receiving entity will need authority beyond the 66 foot right-of-way to make improvements to the highway. The decision maker must also consider the whole of the transfer agreement to determine whether the conveyance of the right-of-way is in the best interest of the public, in contrast to the DOT, county or township governmental entity.

Question 4: How does a transfer of a right-of-way under SB 119 affect traffic control?

SB 119 does not alter the existing jurisdiction of the state, tribe or federal government over any person.

The Legislature has enacted a statutory scheme to regulate vehicle traffic on all state highways. See generally SDCL chs. 32-14 through 35, inclusive. The DOT and local governmental entities are delegated authority to regulate traffic on roads under their authority in a manner consistent with state law. See, e.g., SDCL 32-14-3. Traditionally, when a right-of-way highway road was transferred under SDCL 31-19-63 and -64, the transferring entity's authority to regulate traffic would cease and the receiving entity's start. State traffic laws would continue to apply, largely unaffected by the transfer.

A tribe and the BIA, however, are not state entities. SB 119 does not address the regulatory authority of the DOT, local governments, the BIA or a tribe after transfer of a right-of-way. SB 119 does not provide the transferring state entities with continuing authority to regulate. Further, SB 119 does not authorize the BIA or a tribe to regulate traffic on the transferred state highway.

This creates regulation issues with no clear answers and is a major reason why a joint powers agreement may well serve as a preferable method of addressing road maintenance and improvement issues. If SB 119 is to be effectively used to transfer rights-of-way to the BIA or a tribe, it might be desirable for the Legislature to address this issue.

In any event, after the transfer of a section line highway or other right-of-way under SB 119, the highway remains a state highway. At a minimum, state legislative traffic control provisions regarding highway speed limits and signage remain effective. To avoid confusion, the agreement should specify that a grantee agrees that state traffic control laws remain applicable to the transferred right-of-way. The agreement should require the grantee to erect signs, place pavement markings, perform other traffic control activities in accordance with state law, and accept liability for failure to properly perform these functions.

The enforcement of speed limits raises a particular concern to the extent that the right-of-way is located in "Indian country." All territory within a "reservation" as defined by 18 USC § 1151(a) is "Indian country"; additionally, "Indian country" may be found off-reservation. For example, the right-of-way transferred might run through an off-reservation "dependent Indian community" as defined by 18 USC § 1151(b), or through off-reservation "allotments, the Indian titles to which have not been extinguished." 18 USC § 1151(c).

Because state law remains effective with regard at least to non-Indians at all locations, the relevant speed limit for those persons will likely be set through application of SDCL §§ 32-25-1.1 or 32-25-7, regardless of the location of the road. Unless the agreement provides that the tribe or BIA will set the same speed limit imposed by state law, it is possible that different speed limits apply based on tribal membership. The tribal or BIA limit would be applicable to those within tribal jurisdiction when the road is within "Indian country." The state limit would apply to non-Indians on roads within "Indian country." The agreement must address this issue.

Note should be taken of the BIA's assertion that a public road "located within or provid[ing] access to an Indian reservation or Indian trust land" (25 CFR § 170.5) may be entirely subject to tribal or BIA authority under 25 CFR 170.120(c). This assertion appears to potentially include virtually any road on or near a reservation. If the BIA determines that a tribe obtaining a right-of-way through transfer under SB 119 is the "public authority having jurisdiction" over the road, a jurisdictional conflict may be created. A transfer agreement should address the applicability of 25 CFR § 170.120 to avoid jurisdictional conflicts. If a transfer agreement under SB 119 creates a jurisdictional conflict, the agreement may not be in the "best interests of the public".

Question 5: How does a transfer under SB 119 affect the civil and criminal jurisdiction of the state, federal or tribal courts?

Transferring a right-of-way to a tribe or the BIA under SB 119 does not alter civil or criminal jurisdictional boundaries or the civil or criminal jurisdiction of the state, United States, or tribes. The Legislature could not, consistent with the non-delegation doctrine, grant to each township, county and the DOT the power to alter the boundaries of state jurisdiction over its inhabitants; such would likely be found to be an abdication of the Legislature's "essential power to enact basic polices into law." State v. Moschell, 2004 S.D. 35, ¶ 15, 677 N.W.2d 551, 558.

SDCL ch. 1-1 sets out the requirements for transfers of jurisdiction. SDCL 1-1-1 asserts jurisdiction over all territory within the state except where "jurisdiction is expressly ceded" by the Constitution to the United States, or where it is ceded to the United States, "with the consent of the people of the state, expressed by their Legislature and the consent of the United States." SB 119 does not contain such an "express" cession of jurisdiction. It also does not contain a provision requiring an acceptance of "jurisdiction" by the United States. SB 119 therefore does not contain the language required for a "cession" or transfer of jurisdiction.

The same result is reached under analysis of federal law. Divestiture of a state's normal jurisdiction over any person is based on whether the land at issue is "Indian country." "Indian country" is defined at 18 USC § 1151; although nominally applicable only to criminal matters, it has also been applied generally in Indian law. DeCoteau v. District Court, 420 U.S. 425, 427 n.2 (1975).

Transfer of a right-of-way under SB 119 is not a transfer of criminal jurisdiction. Tribes have criminal jurisdiction over their own members. The Supreme Court ruled in Duro v. Reina, 495 U.S. 676 (1990) that tribes lack criminal jurisdiction over Indians who are not members of the host tribe. Congress superseded that decision by legislation at 25 USC §§ 1301(2) and (4). Although the Supreme Court has validated the amendments in some respects, other constitutional challenges to this legislation remain. See United States v. Lara, 541 U.S. 193, 208-209 (2003). It is clear, however, that a tribe has no criminal jurisdiction over any person beyond the "Indian country" associated with the tribe. States and local units of governments have criminal jurisdiction of all persons outside of "Indian country." States and local units of governments also have criminal jurisdiction of non-Indians within Indian country, to the extent that a crime is not committed against a tribal member or Indian. The federal authorities have jurisdiction as defined by federal law. None of this is altered by a transfer of a right-of-way under SB 119, as the transfer neither creates "Indian country" nor alters preexisting criminal jurisdiction.

Tribes have no criminal jurisdiction, and only limited civil jurisdiction, over non-Indians on reservations. E.g., Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S.Ct. 2709 (2008). A tribe's assertion of civil jurisdiction might be strengthened by acceptance of a right-of-way under SB 119 in the event of an accident between a tribal member and a non-Indian on a transferred right-of-way on a reservation. This is the inference (in reverse) of Strate v. A-1 Contractors, 520 U.S. 438, 456 (1997), which gave some significance to the fact that a right-of-way on a reservation was held by the state and therefore was aligned "with land alienated to non-Indians." This is an issue in determining whether the transfer is in the "best interest of the public."

A transfer in an off-reservation county that was at one time within a former reservation does not alter jurisdictional authority. The entirety of Bennett County is such an off reservation area. United States ex rel. Cook v. Parkinson, 525 F.2d 120 (8th Cir. 1975). A transfer of a right-of-way within Bennett County does not convert any part of Bennett County into "Indian country" under 18 USC § 1151 and does not change the existing jurisdictional structure. This is because the transfer does not create any of the three potential types of "Indian country" identified in 18 USC § 1151.

A situation that might create confusion is the transfer of a right-of-way in areas that lie within a reservation under 18 USC § 1151(a), such as Todd and Shannon counties. Jurisdictional authority, however, is not altered by a transfer under SB 119. All of the land within these counties is "reservation" or "Indian country" under 18 USC § 1151, regardless of the status of the person or entity that owns it. See Solem v. Bartlett, 465 U.S. 463, 470 (1984). Therefore, transfer of a right-of-way by the DOT, county or township in these areas has no effect on its "Indian country" or "reservation" status.

As to Section 10, T107N, R48W in Flandreau Township, the Secretary of the Interior, invoking 25 USC § 467, has proclaimed most of Section 10 to be "reservation." Transfer of section line right-of-way highways from the township to the tribe or BIA for a public highway overlying the "reservation" lands would not affect that status.

Part of Section 10, in particular the SE¼ of Section 10, T107N, R48W, is held in fee status by the Flandreau Santee Sioux Tribe. This area is not "reservation" because it has not been subject to a Proclamation under 25 USC § 467. While the Tribe does have the power of a private property owner, the Tribe does not have any governmental power over this area because tribal governmental power does not extend off reservation or beyond "Indian country." A transfer of a right-of-way under SB 119 would not alter this status. The same analysis applies to any transfer to a tribe of a right-of-way overlying off-reservation fee land.

Question 6: If a transfer of a right-of-way is made by a township (or the South Dakota Department of Transportation (DOT) or a county) to the Tribe or the BIA, would that transfer relieve the township (or the DOT or county) of liability?

A determination of liability for all activities within a transferred right-of-way, including maintenance and safety issues, will have to be made by the courts. If the transfer is proper, and the transferring entity retains no duty regarding road construction, maintenance, signage or otherwise, it should relieve the local government or the DOT of such liability. Because a court may disagree, the agreement should include specific language transferring liability and providing indemnification.

In addition, because the state or local government maintains authority over the utility and telecommunication lines and pipes in transferred rights-of-way, liability related to those activities may arise even after a right-of-way has been transferred under SB 119.

CONCLUSION

SB 119 creates a mechanism for transferring rights-of-way to tribes and agencies of the federal government, but leaves many questions unanswered. A carefully composed agreement between the state, county or township and the tribe and/or federal agency is necessary to address many of these questions. The deed transferring a right-of-way may also need to include some unique provisions, such as a reversion.

Given the challenge of composing an adequate agreement, and the jurisdictional and liability issues that may arise after a transfer is completed, it is my opinion that in many instances it may be provident to also consider the state law providing for Joint Powers Agreements. This is particularly the case when the ultimate purpose of the agreement is to provide for cooperation in maintenance of roads in and around Indian country.

Respectfully submitted,

Marty J. Jackley
Attorney General

MJJ/JPG/dh