February 25, 1988

Mr. R. James Zieser 
Bon Homme County State's Attorney 
P.O. Box 476 
Tyndall, South Dakota 57066

Official Opinion No. 88-05

Hunting licenses on Running Water Game Production Area Island

Dear Mr. Zieser:

You have requested an official opinion relating to the following factual  situation:

FACTS: 

On November 14, 1987, a South Dakota Game, Fish and Parks Conservation Officer saw a boat with three persons in it enter the inter-waterway of an island constituting a portion of the Running Water Game Production Area. This island is State of South Dakota property, owned by the United States Army Corps of Engineers and is leased to the South Dakota Department of Game, Fish and Parks for management purposes.  There were shots fired from the boat and when the officer stopped the boat there were three men on board.  The men claimed that they had been hunting pheasants on the island.  None of the hunters had valid South Dakota nonresident hunting licenses, although one did have a valid Nebraska hunting license.  These men were residents of Nebraska.  All three have been cited for hunting in South Dakota without a license.

Based upon this factual situation, you have asked the following question:

QUESTION: 

Is the island which has been deeded in South Dakota, but located in the  water between the South Dakota and the Nebraska borders in the Missouri River and known as part of the Running Water Game Production Area, South Dakota land thereby requiring that hunters on the island must have South Dakota hunting licenses?

ANSWER:

There has been considerable controversy over the years on the location of the boundary in the Missouri River between the states of South Dakota and Nebraska.  The boundary between the State of South Dakota and the State of Nebraska was determined as the middle of the main channel of the Missouri River on the date the State of Nebraska was admitted to the Union, March 1, 1967. See An Act to enable the people of Nebraska to form a constitution and state government, and for admission of such state into the Union on an equal footing with the original states, April 19, 1964, ch. 59, Thirty-eighth Cong., 1st Sess., 13 Stat. 47 (1864).

When South Dakota was later admitted to the Union, its constitution merely stated that its southern boundary would be the northern boundary of the State of Nebraska.  Act of February 22, 1889, Ch. 180, 25 Stat. 676 (1889) (refers only to Dakota Territory as previously described);  see Article I, §  2, South Dakota Constitution.  Although there have been boundary adjustments, none  were made on the area as to which you inquire.  See SL 1895, ch 113;  Act of Congress approved July 24, 1896, ch 12, 30 Stat. 214;  SL 1899, ch 62;  SL 1901, ch 85;  SL 1901, ch 86;  SD SenJ Res 4, 1905;  Act of Congress approved March 1, 1905, ch 1295, 33 Stat. 820;  SL1907, ch 245.  This boundary thus remains the same as it was at the time of admission of the two states to the Union.

In order to determine where the middle of the main channel of the Missouri River was in 1867, I have consulted various maps available to this office.  I attach photocopies for your examination.  The first map, marked Exhibit A, is a survey of 1876.  The island involved is across the Missouri River from the mouth of the Niobrara River.  At the time of the 1876 survey, it is plain that the "island" was connected to the State of South Dakota, and that the River ran to the south of the island.  The second map which I have consulted, marked Exhibit B, is a triangulation of 1889, published in 1891. This map shows that some of the islands or sandbars to the south of the area involved had changed as of 1891, but the area that eventually became the island in question was still firmly attached to the State of South Dakota, and the Missouri River, wherever its main channel may have been, is entirely to the south of this island.  Based upon these maps, it would be my opinion that it is highly unlikely that this "island" was disconnected from the State of South Dakota at any time in the latter half of the nineteenth century.

I have also consulted a 1950 U.S. Geological survey map, Exhibit C.  This map shows the island in question as "Jones Island."  By comparing the position of this island to the earlier surveys, I have concluded that Jones Island was connected to Dakota Territory when Nebraska was admitted to the Union.  This map thus provides further factual support for the proposition that the middle of the main channel was always to the south of what has become the island in question.

Based upon the above, it is my opinion that the island about which you inquire is within the State of South Dakota.  Because it is so located, any hunting from it may be done only with a valid South Dakota license, so long as a license would be required for the same type of hunting anywhere else within the State of South Dakota.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General