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From: "Robert Quiver" <[EMAIL PROTECTED]>
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Subject: SD Atty Gen's  Ltr to EPA-Tribe lacks jurisdiction in Bennett County
Date: Thu, 02 Dec 1999 15:35:55 PST
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State of South Dakota
OFFICE OF ATTORNEY GENERAL
500 East Capitol Ave.
Pierre, SD  57501-5070
phone (605) 773-3215
fax (605)773-4106

Mark Barnett, Attorney General
Lawrence Long, Chief Deputy Attorney General

September 9, 1999

To William Yellow Tail, Regional Administrator
U.S. EPA, Region VIII
999 18th St., Ste 500
Denver, CO 80202-2466

Re: Public Water System Supervision Program Revision for the State of South Dakota

Dear Mr. Yellowtail,

On August  16, 1999, the EPA published the approval of primary revisions for the Lead 
and copper Rule for the State of South  Dakota. 64 Fed Reg 44,521 (1999). This letter 
constitutes the comments of the Office of Attorney General regarding that approval and 
focuses on the section concerning Indian Country.

The published approval of SD's Lead and Copper Rule does not extend to Indian Country. 
EPA may choose to not approve SD's primary revision of the the Lead and Copper Rule in 
Indian Country as defined by 18 U.S.C S1151.

If the authorization had excluded Indian country as defined by 18 U.S.C S1151, the 
state would have no objection to that approval. However, EPA has chosen to go beyond 
the definition of Indian country as defined by 18 U.S.C. s1151

SD has three primary concerns regarding the Indian Country Limitation. First, the 
approval does not discuss the diminished portion of the Pine Ridge Indian Reservation, 
thus implying that Bennett County is within Indian Country. Second, SD disagrees that 
all "trust lands" in South Dakota are automatically Indian Country. Finally, the 
Eighth Circuit Court of Appeals and the SD Supreme Ct handed down their decisions 
regarding the currently status of the diminished/disestablished Yankton Reservation.

1. Pine Ridge Indian Reservation has been diminished so that Bennett County is not 
included within the borders of the Pine Ridge Indian Reservation.

Congress, on May 27, 1910, passed an Act which removed Bennett County from the 
confines of the Pine Ridge Indian Reservation. 36 Stat. 440. The effect of the 1910 
Act was to diminish the Pine Ridge Indian Reservation to exclude Bennett County. US 
ex.rel. Cook v. Parkinson, 525 F.2d 120 (8th Cir.1975), cert. denied, 430 U.S. 982 
(1977). "We hold that Bennett County, SD, was severed from the Pine Ridge Indian 
Reservation by the Act of May 27, 1910, and became part of the public domain and the 
state of SD." Id at 124. South has jurisdiction over all lands within Bennett County 
except for dependent Indian communities under 18 U.S.C. s1151 (b) and allotments, 
Indian title to which has not been extinguished under 18 U.S.C. s1151 (c). Id at 122.

SD requests that a section be added addressing the Pine Ridge Indian Reservation and 
the fact that Bennett County has been removed from the reservation, much like the 
Rosebud Sioux Reservation and the Lake Traverse Reservation....

Based upon those decisions,SD requests that EPA amend its authorization regarding the 
diminished Yankton Sioux Reservation. copies of both decisions are attached for your 
convenience.

Sincerely,

Charles D. McGuigan
Assistant Attorney General

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