"Indian Country" refers to a variable geographic place where Native Americans reside on trust lands–reserves and reservations. The term is in use in both Canada and the United States, but it bears specific legal meaning only in the latter, where it defines both tribal holdings and individual land allotments, whether still in trust or held in fee (absolute ownership). There is no comparable meaning in Canada, for Native reserves are administered only for Indian communities, not for individual Indians. In both nations the federal government administers most of these lands and thereby generally preempts provincial or state authority over them. Every state and province in the Great Plains includes Indian Country: trust lands abound in the northern tier of states and in the adjacent three provinces–for example, the Rosebud Reservation in South Dakota, the Crow Indian Reservation in Montana, and the Assiniboine Reserve in Saskatchewan. In the Prairie Provinces there are numerous very small reserves, many occupied by brethren of tribes within U.S. borders (e.g., the Blackfeet and Crees); in Alberta there are also a small number of Métis reserves held in fee simple title. In contrast, reservations on the Americans side of the border are generally much larger, although in the states of Kansas, Nebraska, and Texas, there are only a few small, scattered reservations. Oklahoma–once Indian Territory, to which were relocated tribes from the South, East, and from other parts of the Plains–does not acknowledge Indian Country, despite the existence of the Osage Reservation and so-called former reservations (for the most part, Indian Territory reservations were cancelled through allotment).
Because of conflict and litigation over jurisdiction, other interpretations of Indian Country would apply extralegal meaning in the United States. Such interpretations involve former Aboriginal territory (where, for example, some tribes may continue to hunt and fish but not without controversy); adjudicated claims areas, or lands shown to have historically belonged to tribes, and all former trust lands whether within or outside reservations. State jurisdiction over certain criminal and civil authority may extend to Indians and their lands, but not authority over land use. (Under the Indian Act of 1876 in Canada, provinces do have some jurisdiction over Indians on reserves, but rarely over land in reserves, and provincial zoning authority may apply only if not contrary to that act and constitutional revisions of 1982.)
At one time Indian Country was extraterritorial by treaty and lay beyond local European American jurisdiction. Such was true of the Great Plains until settlers and others, seeking land farther and farther west in both countries, agitated for the cession of tribal reserves or reservations. At first, treaties reserved considerable acreage, as with the Great Sioux Reservation that once dominated Dakota Territory and buffered tribes from adjacent non-Indian communities. Unfortunately, Congress enabled non-Indian homesteading within reservations by declaring remaining acreage "surplus" subsequent to the allotment of tribal lands to individual Indians. Moreover, countless non-Indians also acquired trust lands through sale or inheritance. This aspect of Indian Country is fundamentally inapplicable to Canada.
Where entire counties within Indian Country in some states have become non-Indian in character, litigation has ensued, leading to the diminishment of external boundaries of many allotted reservations. Plains tribes have not escaped this judicial interpretation. In Rosebud Sioux Tribe v. Kneip (1977), the Supreme Court determined that four counties in South Dakota were disestablished by earlier allotment laws; consequently, some 2,000 tribal members and seven recognized communities occupying trust acreage on the Rosebud Reservation ended up outside the reservation. South Dakota does not delineate on official state maps those counties once part of reservations that now comprise mostly non-Indian citizenry. Recent court decisions have continued to erode the legal meaning of Indian Country and hence its geographic configuration. Fee lands owned, utilized, and resided on by non-Indians constitute a strong demographic factor disqualifying tribal jurisdiction over land-use planning and related environmental management. This interpretation has led the courts in Devils Lake Sioux Tribe v. North Dakota PSC to exclude non-Indian holdings from tribal jurisdiction on the Fort Totten Reservation (North Dakota); a similar decision has diminished tribal authority on the Crow Indian Reservation (Montana). According to South Dakota v. Bourland, the alienation of Cheyenne River (South Dakota) Sioux lands by flood control and other acts eliminated tribal jurisdiction over non- Indians on certain lands adjacent to the Missouri River. In 1998 a similar decision–South Dakota v. Yankton Sioux Tribe–excluded from tribal jurisdiction all former trust lands lying outside diminished reservation borders.
Imre Sutton California State University, Fullerton
Getches, David H., Charles F. Wilkinson, and Robert A Williams Jr. Cases and Materials on Federal Indian Law. St. Paul: West Publishing Co., 1993.
Johnson, Ralph W. "Fragile Gains: Two Centuries of Canadian and United States Policy toward Indians." Washington Law Review 66 (1991): 643–718.
Sutton, Imre. "Preface to Indian Country: Geography and Law." American Indian Culture and Research Journal 15 (1991): 3–35.