dissenting.
I believe that the district court erred in holding that the Yankton Sioux Reservation had not been diminished. See Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 890 F.Supp. 878, 879 (D.S.D.1995). The August 15,1894 Act opening the Yankton Sioux Reservation to white settlement, an Act fulfilling treaty stipulations with and support of indian tribes, Ch. 290, 28 Stat. 314 (1894) (1894 Act), which ratified the 1892- agreement between the United States and the Yankton Sioux Tribe (1892 Agreement), contained language of cession of land for a sum certain, which created “an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished.” Solem v. Bartlett, 465 U.S. 463, 470-71, 104 S.Ct. 1161, 1166, 79 L.Ed.2d 443 (1984) (citing DeCoteau v. District County Court, 420 U.S. 425, 447-48, 95 S.Ct. 1082, 1094-95, 43 L.Ed.2d 300 (1975)).27 Because this presumption has not been rebutted in this case, I must respectfully dissent.
I.
Although “the Congresses that passed the surplus land Acts anticipated the imminent demise of the reservation and, in fact, passed the Acts partially to facilitate the process,” Solem, 465 U.S. at 468, 104 S.Ct. at 1165, we may not “extrapolate from this expectation a specific congressional purpose of diminishing reservations with the passage of every sur-plüs land Act.” Id. at 468-69, 104 S.Ct. at 1165. Instead, “some surplus land Acts diminished reservations,” id. at 469, 104 S.Ct. at 1165, while “other surplus land Acts did not.” Id. The United States Supreme Court, which has frequently addressed this issue,28 has provided the proper analysis for determining if diminishment has occurred:
Our analysis of surplus land Acts requires that Congress clearly evince an intent to change boundaries before diminishment will be found. The most probative evidence of congressional intent is the statutory language used to open the Indian lands. Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unallotted opened lands. When such language of cession is buttressed by an unconditional commitment from Congress to compensate the Indian tribe for its opened land, there is an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished.
Solem, 465 U.S. at 470-71, 104 S.Ct. at 1166 (citations and quotations omitted, emphasis added). In addition to creating this “almost insurmountable presumption” of diminishment, id. at 470, 104 S.Ct. at 1166, specific language of cession coupled with payment for a sum certain is an “extreme” example of Congress’s express intent to diminish a reservation, see id. at 469 n. 10, 104 S.Ct. at 1165 n. 10, which is “precisely suited to disestablishment” purposes. Id. at 473 n. 15, 104 S.Ct. at 1167 n. 15 (quotations omitted). See also DeCoteau, 420 U.S. at 445, 95 S.Ct. at 1093 (express language of cession combined with payment of a sum certain “was precisely suited to this purpose” of terminating reservation).
The 1894 Act contained the following provisions:
Article I.
The Yankton tribe of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said Indians as aforesaid.
*1459Article II.
In consideration for the lands ceded, sold, relinquished, and conveyed to the United States as aforesaid, the United States stipulates and agrees to pay to the said Yank-ton tribe of Sioux Indians the sum of six hundred thousand dollars ($600,000), as hereinbefore provided for.
Ch. 290, 28 Stat. at 314-15 (emphasis added).
Because Articles I and II of the 1894 Act contain language of cession of land for a sum certain, they create an almost insurmountable presumption of diminishment. The task of this Court is therefore to determine if the proponents of a continued reservation status for the ceded lands have successfully rebutted this presumption of diminishment.29 The majority, however, never makes this critical analysis. Indeed, the majority never acknowledges that the presumption of dimin-ishment exists,30 nor does it hold that the presumption of diminishment has somehow been rebutted.
Rather than addressing the presumption created by Articles I and II together, the majority considers each Article separately. Citing to United States v. Grey Bear, 828 F.2d 1286 (8th Cir.1987), vacated in part on other grounds on reh’g en banc, 863 F.2d 572 (8th Cir.1988), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990), which construed an allotment-era statute which contained a provision similar to Article I, the majority states that Article I’s cession language “alone is not controlling.” Maj. Op. at 1445. Unlike the instant case, however, Grey Bear did not involve an allotment-era statute which provided for a sum certain payment for ceded land. See Grey Bear, 828 F.2d at 1290. This lack of a sum certain payment was critical to this Court’s analysis in Grey Bear, where we stated:
The Supreme Court has held that such explicit reference to cession suggests that Congress intended to divest the reservation of its land. See Solem, 465 U.S. at 470, 104 S.Ct. at 1166. The Court has further held that “[w]hen such language of cession is buttressed by an unconditional commitment from Congress to compensate the Indian tribe for its opened land, there is an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished.” Id. at 470-71, 104 S.Ct. at 1166. We agree with the district court’s analysis that although the “cede, surrender, grant, and convey” language of the Act suggests congressional intent to disestablish the reservation boundaries, see Rosebud, 430 U.S. at 597, 97 S.Ct. at 1368; DeCoteau, 420 U.S. at 445, 95 S.Ct. at 1093, the Act does not contain an unconditional commitment by Congress to pay the tribe for the ceded lands. [United States v. Grey Bear, 636 F.Supp. 1551, 1554 (D.N.D.1986) ]. Compensation for the lands was not set at any fixed price and the tribe was guaranteed reimbursement only for the lands actually disposed of by the government. Thus, the “almost insurmountable presumption” of disestablishment urged by defendants is not present in this case.
*1460Id. at 1290 (emphasis in original). The 1894 Act does contain the critical language of an “unconditional commitment by Congress to pay the tribe for the ceded lands,” id. (emphasis in original), and consequently places the instant case on an entirely different footing than Grey Bear. Rather than supporting the majority’s decision to ignore the presumption of diminishment created by Articles I and II, therefore, Grey Bear strongly supports adhering to United States Supreme Court precedent.
The majority similarly discards the importance of Article II by asserting that “[although a lump sum payment can in some circumstances indicate a congressional intent to diminish a reservation, see, e.g., DeCoteau, 420 U.S. at 447-48, 95 S.Ct. at 1094-95, the record in this case does not support that conclusion.” Maj. Op. at 1447. The majority fails to recognize that the language actually chosen by Congress is the best indication of its intent. See Citicasters v. McCaskill, 89 F.3d 1350, 1354-55 (8th Cir.1996) (citing cases). Rather than turning to the legislative .history only to clarify an ambiguous statute,, the majority seems to suggest that the plain meaning of a statute must be rejected unless positively,-supported by its legislative history. This approach is simply not correct. In Article II, Congress chose language “precisely suited” to diminishment, DeCoteau, 420 U.S. at 445, 95 S.Ct. at 1093, and the majority has pointed to nothing in the legislative history that betrays a contrary intent. See Maj. Op. at 1446-47 (discussing legislative history).
Without acknowledging the almost insurmountable presumption of diminishment created by the interplay of Articles I and II, the majority relies on the savings clause in Article XVIII to support,its conclusion that the reservation was not diminished by the 1894 Act.31 Article XVIII provides:
Nothing in this agreement shall be construed to abrogate the treaty of April 19th, 1858, between the Yankton tribe of Sioux Indians and the United States. And after the signing of this agreement, and its ratification by Congress, all provisions of the said treaty of April 19th, 1858, shall be in full force and effect, the same as though this agreement had not been made, and the said Yankton Indians shall continue to receive their annuities under the said treaty of April 19th, 1858.
Ch. 290, 28 Stat. at 318 (emphasis added). Disregarding that the cession of land for a sum certain provided by Articles I and II constitute an “extreme” example of Congress’s express intent to diminish a reservation, see Solem, 465 U.S. at 469 n. 10, 104 S.Ct. at 1165 n. 10, which is “precisely suited to disestablishment” purposes, id. at 473 n. 15, 104 S.Ct. at 1167 n. 15 (quotations omitted), the majority states that “Articles I, II, and XVIII may be read together to give meaning to them all, and we conclude that in combination they reveal an intent to preserve *1461the 1858 reservation boundaries.” Maj. Op. at 1448 (note omitted). I disagree.
Based on the language of Article XVIII, legislative history, and the purpose of the 1894 Act, the only reasonable interpretation of Article XVIII is that it extended to annuities, and no farther. No one, including the district court, any party or amici, or the majority, suggests that we interpret Article XVIII literally, because to do so would eviscerate the 1894 Act, nullifying its chief provisions and contradicting its entire purpose.32 Under the Act of April 19, 1858, 11 Stat. 743 (1858) (Treaty of 1858), the Yanktons were not to be dispossessed of their lands, and white settlers were not allowed within the 1858 boundaries of the reservation. The undisputed purpose of the 1894 Act, however, was to obtain Yankton land for white settlement; the 1894 Act specifically dispossessed the Yanktons of a substantial portion of their reservation and allowed white settlers to purchase them. The 1858 Treaty’s provisions cannot be reconciled with the 1894 Act, and Article XVIII of the 1894 Act therefore cannot mean what it says. See Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 857, 15 L.Ed.2d 827 (1966) (“ ‘There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such eases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act.”’ (emphasis added) (quoting United States v. American Trucking Ass’ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940))); Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333, 59 S.Ct. 191, 200, 83 L.Ed. 195 (1938) (“to construe statutes so as to avoid results glaringly absurd, has long been a judicial function”). See also United States v. Granderson, 511 U.S. 39, ---, 114 S.Ct. 1259, 1268-69, 127 L.Ed.2d 611 (1994) (using “a sensible construction” to interpret, a Sentencing Guideline “that avoids attributing to the legislature either an unjust or an absurd conclusion” (citations and quotations omitted)); Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979) (describing “elementary canon of construction that a statute should be interpreted so as not to render one part inoperative”).
Although a literal interpretation of Article XVIII is not possible without absurd results, it is still this Court’s task to determine the intent of the 53rd Congress in crafting this provision of the 1894 Act. Determining the legislative intent of a bygone Congress is not *1462a license to redraft poorly constructed legislation to achieve a result more in harmony with modern sensibilities, however, and the majority should have forsaken this opportunity to do so. Contrary to the majority’s inventive interpretation of the savings clause, nowhere in Article XVIII nor in the legislative history of the 1894 Act is there any suggestion that the 1858 boundaries were to remain intact, nor that the tribe was to have continuing authority over ceded lands.33 Rather, Article XVIII specifically reassured tribal members that annuities would continue, and the issue of annuities was of foremost importance in the negotiations for the cession of land. See, e.g., S.Exec.Doc. 27, 53rd Cong., 2d Sess. at 17-19 (Mar. 31, 1893 Report of the Yankton Indian Commission). Indeed, even historian Herbert Theodore Hoover, the Yankton tribe’s expert witness, testified that, at the time of the negotiations preceding the 1894 Act, there existed
a rumor that [the Yanktons] believed that if they didn’t sell the surplus land, the government of the United States was going to cut off their annuities.... So there was a belief in the tribe that it’s plausible the government might shut these [annuities] down if we resist [selling land], because the resistance had led to the loss of annuities in the past. And one should not have the opinion that tribal members didn’t communicate with each other, because Yanktons ran a lot with government support to hunt west of the Missouri River. So it’s my opinion that the Yanktons would have believed that the government might cut off the annuities, and that would have been disastrous.... I believe that they believed that they were threatened by the loss of the annuities.
Trial Tr. at 53-55.
The majority’s assertion that “Article XVIII of the 1894 statute indicated that as much of [the 1858] treaty as possible was to be preserved,” Maj. Op. at 1448, is based neither on the text — which referred only to annuities — nor the legislative history of the 1894 Act, and has as its source only, as best as I can discern, a single-minded desire to avoid diminishment at all costs. Because Article XVIII extended only to annuities, it could not rebut the powerful presumption that the Yankton Sioux Reservation was diminished.
II.
Other provisions of the 1894 Act are also relevant to a diminishment analysis. First, Article XVII of the 1894 Act prohibited the sale of liquor on the ceded lands. The inclusion of a liquor prohibition provision in an allotment statute is indicative of an intent to diminish the reservation, because standing law had already prohibited the introduction of alcohol into Indian country. See Rosebud, 430 U.S. at 613, 613-15 n. 47, 97 S.Ct. at 1376, 1376 n. 47. But see Solem, 465 U.S. at 475-76 n. 18, 104 S.Ct. at 1169 n. 18 (describing this provision as being “obviously of secondary importance to our decision” in the Rosebud case).34 Second, Article VIII of the 1894 Act, which reserved parcels of ceded *1463land for agency and school use, is similar to a provision the Solem Court found indicative of a continued reservation status. See 465 U.S. at 474, 104 S.Ct. at 1168. The Solem Court, however, did not consider what impact, if any, such a provision could have on the almost insurmountable presumption of dimin-ishment created by Articles I and II.
Finally, the 1894 Act reserved the sixteenth and thirty-sixth sections in each “Congressional township” of the ceded lands for common schools, which were to “be subject to the laws of the State of South Dakota.” Ch. 290, 28 Stat. at 319. A virtually identical provision in the statute opening the Rosebud Sioux Reservation was found by the Supreme Court to be strongly indicative of diminishment. See Rosebud, 430 U.S. at 599-601, 97 S.Ct. at 1369-70. The Court reasoned that the grant of land for common schools was based on § 10 of the Act of February 22, 1889, 25 Stat. 679 (admitting Act), which admitted North and South Dakota into the Union. The admitting Act provided that:
[Ujpon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States ... are hereby granted to said States for the support of common schools ...: Provided, That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants ... of this act, nor shall any land embraced in Indian, military, or other reservations of any character be subject to the grants ... of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.
Reprinted in Rosebud, 430 U.S. at 599-600, 97 S.Ct. at 1370 (emphasis added). The Rosebud Court reasoned that, because the admitting Act specifically excluded a grant of land in an Indian reservation until after the reservation had been extinguished, the congressional grant of land based on § 1Ó of the admitting Act necessarily implied that the Rosebud reservation had been diminished. See id. at 599-601, 97 S.Ct. at 1369-70. This precise logic applies in this ease, as well: the grant of land for common schools in the 1894 Act — which contains the identical language as § 10 of the admitting. Act — could not have been based on § 10 of the admitting Act if the Yankton reservation had not been diminished. This provision, therefore, strongly supports diminishment.35
III.
The United States Supreme Court has found diminishment of a reservation even where Congress has not made its intent to diminish explicit by including language of cession of land for a sum certain in an allotment statute. In Solem, the Court stated that
explicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment. When events surrounding the passage of a surplus land Act — particularly the maimer in which the transaction was negotiated with the tribes involved and the tenor of legislative Reports presented to Congress — unequivocally reveal a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation, we have been willing to infer that Congress shared the understanding that its action would diminish the reservation....
465 U.S. at 471, 104 S.Ct. at 1166 (citations omitted). The legislative history of the 1894 Act contains striking passages which clearly anticipated the termination of tribal governance; see, e.g., S.Exec.Doc. 27 at 19 (“and now that [the Yankton Indians] have been allotted their lands in severalty and have sold their surplus land — the last property bond which assisted to hold them together in their tribal interest and estate — their tribal interests may be considered a thing of the past”) (Report of the Yankton Indian Commission, recommending that South Dakota be given *1464funds to ensure access by Yankton Indians to state courts). See also id. at 48 (“It might be, after you sold your lands, you could have this reservation organized as a separate county. If this could be done — I do not say it can — you could govern your own people in your own way, so long as you obeyed the laws of the State”) (statements by government negotiator to Yankton tribal members, emphasis added).36
In addition, “events that occurred after the passage of a surplus land Act” may support a finding of diminishment. Solem, 465 U.S. at 471, 104 S.Ct. at 1166. These “events” include how “local judicial authorities dealt with unallotted open lands.” Id.37 In this case, the South Dakota Supreme Court has consistently held that the Yankton Sioux Reservation has been diminished. See, e.g., State v. Thompson, 355 N.W.2d 349 (S.D. 1984); State v. Winckler, 260 N.W.2d 356 (S.D.1977); State v. Williamson, 87 S.D. 512, 211 N.W.2d 182 (1973); Wood v. Jameson, 81 S.D. 12, 130 N.W.2d 95 (1964).38 While the *1465Yankton tribe has not “exercised civil jurisdiction, particularly environmental regulation, over Indians or non-Indians beyond its trust lands,” Yankton Sioux, 890 F.Supp. at 888, by contrast, “the State of South Dakota has exercised jurisdiction over mining, solid waste disposal, and hazardous materials on non-Indian lands located within the 1858 exterior boundaries of the Yankton Sioux Reservation.” Id. Indeed, South Dakota has exercised civil and criminal jurisdiction over tribal members in the ceded lands for the past century. See id. at 887. Although this exercise of jurisdiction may not be disposi-tive, it substantially supports a finding of diminishment. See, e.g., Hagen, 510 U.S. at 421, 114 S.Ct. at 970 (“This ‘jurisdictional history,’ as well as the current population situation in the Uintah Valley, demonstrates a practical acknowledgement that the Reservation was diminished; a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area.”); see also Rosebud, 430 U.S. at 604, 97 S.Ct. at 1372 (“[T]he fact that neither Congress nor the Department of Indian Affairs has sought to exercise its authority over this area, or to challenge the State’s exercise of authority is a factor entitled to weight as a part of the ‘jurisdictional history.’ ”); DeCoteau, 420 U.S. at 449, 95 S.Ct. at 1095 (“Until the Court of Appeals altered the status quo, South Dakota had exercised jurisdiction over the unallotted lands of the former reservation for some 80 years.”).
Federal courts have also usually considered the Yankton reservation to have been diminished. In Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691 (1914), a white merchant living on ceded lands within the boundaries of the 1858 Yankton reservation was convicted of selling alcohol, in violation of the 1894 Act and a -related statute. The Court, after noting that “[t]he power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation ... does not admit of any doubt,” id. at 482, 34 S.Ct. at 389, went' on to analyze whether Congress had authority to regulate alcohol “upon ceded lands formerly included in the Yankton Sioux Indian Reservation.” Id. at 480, 34 S.Ct. at 388. The Court referred to the “original reservation,” id. at 486, 34 S.Ct. at 391, and quoted ease law that “[i]f liquor is injurious to [Indians] inside of a reservation, it is equally so outside of it.” Id. at 484, 34 S.Ct. at 390 (quoting United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 195, 23 L.Ed. 846 (1876)). While not reaching a specific holding, the United States Supreme Court clearly treated the Yankton Sioux Reservation as diminished.39 See also Weddell v. Meierhenry, 636 F.2d 211, 213 (8th Cir.1980) (noting that community within the 1858 boundaries of the reservation was not a “dependent Indian community”) (denying habeas relief to Yankton tribal member convicted in the South Dakota state court for crimes committed on ceded lands), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981); Yankton Sioux Tribe v. United States, 224 Ct.Cl. 62, 623 F.2d 159, 165 (1980) (“These final boundaries of the Yankton Sioux Reservation were respected by "both parties for more than three decades up until the 1892 Agreement changed those boundaries by the cession at issue in this ease.”) (awarding additional compensation for lands ceded by 1894 Act).
IV.
Under the explicit terms of the 1894 Act and. in light of controlling United States Su*1466preme Court precedent, it is clear that the 53rd Congress intended to change the Yank-ton Sioux Reservation’s boundaries and to remove tribal authority over lands ceded in the 1894 Act, and that the 1894 Act therefore diminished the Yankton Sioux Reservation. While I understand the majority’s desire to “remake history,” DeCoteau, 420 U.S. at 449, 95 S.Ct. at 1095, and to redraft legislation which has arguably had unfortunate results, see, e.g., Maj. Op. at 1444 (noting that “it became clear in the first decades of the twentieth century that the allotment policy was failing”), its rejection of clear congressional intent and its disregard of controlling and contrary Supreme Court precedent cannot be condoned. I respectfully dissent.
. The boundaries of the Yankton Sioux Reservation were established by a treaty between the United States and the Yankton Sioux Tribe in 1858. See Act of April 19, 1858, 11 Stat. 743 (1858) (Treaty of 1858).
. In addition to Solem and DeCoteau, the Supreme Cotut has considered the issue of diminishment in Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994), Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977), Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), and Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). In Hagen, Rosebud, and DeCoteau, the Court found diminishment based on an allotment-era statute.
. Although the United States Supreme Court has never found that this presumption of dimin-ishment has been rebutted, its choice of the phrase, “almost insurmountable presumption,” Solem, 465 U.S. at 470, 104 S.Ct. at 1166 (emphasis added), suggests it is at least theoretically possible, although difficult, to rebut this presumption of diminishment. The Court has not, however, enunciated what quanta of evidence is necessary to achieve this feat. Because an “almost insurmountable presumption" is obviously not to be lightly discarded, it would seem that one challenging it should have the burden of presenting evidence which, at a minimum, clearly and convincingly demonstrates that. Congress intended to maintain tribal governance over ceded lands despite its enactment of provisions precisely suited to diminishment.
. While the majority makes two passing references to this critical presumption, it couches each reference as a mere restatement of the appellant's argument. See Maj. Op. at 1446 ("The state argues that the Supreme Court has construed similar language [as that in Articles I and II] as indicating congressional intent to diminish or disestablish reservations. DeCoteau, 420 U.S. at 445, 95 S.Ct. at 1093.”); id. at 1446 ("The state argues that the $600,000 sale price in Article II, in conjunction with the 'cede, sell, relinquish, and convey' language in Article I, gives rise to 'an almost insurmountable presumption' that Congress intended to diminish the reservation. Solem, 465 U.S. at 470-71, 104 S.Ct. at 1166.”). Nowhere in its opinion does the majority acknowledge that the appellant is correct that this almost insurmountable presumption of diminishment was created by Articles I and II.
. The majority indicates that “[i]n their briefs the signatories to the 1892 agreement state that Article XVIII has the strongest savings clause of any unallotted land sale agreement between a tribe and the government.” Maj. Op. at 1447. Assuming that this refers to the appellee and to amicus the United States, I am at a loss as to why the majority finds the assertions of these parties so significant; surely, the "strength” of a savings clause is a question of law for this Court to determine, and is independent of the parties' historical relationship to the legislation. To the extent that Article XVIII represents an unusual savings clause, however, I note that the United States • Supreme Court found diminishment despite similarly "strong"- — if less verbose — savings clauses in two other allotment-era statutes. In Montana v. United States, 450 U.S. 544, 548, 101 S.Ct. 1245, 1249, 67 L.Ed.2d 493 (1981), the Court concluded that 22 Stat. 42 reduced a reservation to 2.3 million acres, despite a savings clause that provided that "all the existing provisions of May seventh, eighteen hundred and sixty-eight, [establishing an 8,000,000 acre reservation] shall continue in force.” An Act accepting and ratifying agreement for sale of a portion of the Crow Indians of Montana reservation, Ch. 74, 22 Stat. 42 (1882). Similarly, in DeCoteau, 420 U.S. at 446, 95 S.Ct. at 1094, the United States Supreme Court found diminishment despite a savings clause in an allotment-era statute which provided that an earlier treaty’s provisions, which established a reservation’s boundaries, "shall continue in force." An Act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes, Ch. 543, 26 Stat. 989, 1042 (1891). Thus, while I agree that savings clauses may have a role in our statutory interpretation, see, e.g., City of New Town v. United States, 454 F.2d 121, 125 (8th Cir.1972), they should not have the talis-manic significance proffered by the majority.
. The Treaty of 1858, between the United States and the Yankton Sioux Tribe, provided that:
Article 1.
The said chiefs and delegates of [the Yankton Sioux] tribe of Indians do hereby cede and relinquish to the United States all the lands now owned, possessed, or claimed by them, wherever situated, except four hundred thousand acres thereof, situated and described as follows, to wit — [describes boundaries of reservation].
Article 4.
In consideration of the foregoing cession, relinquishment, and agreements, the United States do hereby agree and stipulate as follows, to wit:
1st. To protect the said Yanctons [sp] in the quiet and peaceable possession of the said tract of four hundred thousand acres of land so reserved for their future home, and also their persons and property thereon during good behavior on their part.
2d. To pay to them, or expend for their benefit, the sum of sixty-five thousand dollars per annum, for ten years, commencing with the year in which they shall remove to, and settle and reside upon, their said reservation — forty thousand dollars per annum for and during ten years thereafter — twenty-five thousand dollars per annum for and during ten years thereafter — and fifteen thousand dollars per annum for and during twenty years thereafter — arid fifteen thousand dollars per annum for and during twenty years thereafter; making one million and six hundred thousand dollars in annuities in the period of fifty years....
Article 10.
No white person, unless in the employment of the United States, or duly licensed to trade with the Yanctons, [sp] or members of the families of such persons, shall be permitted to reside or make any settlement upon any part of the tract herein reserved for said Indians, nor shall said Indians alienate, sell, or in any manner dispose of any portion thereof, except to the United States....
(emphasis added).
. The majority asserts that "to the extent there could be any ambiguity perceived in the [1894 Act], it would have to be resolved in favor of the tribe.” Maj. Op. at 1448-49. In DeCoteau, the United States Supreme Court commented on the temptation to misuse this canon of construction that ambiguities are to be resolved in favor of the tribe:
For the courts to reinstate the entire reservation, on the theory that retention of mere allotments was ill-advised, would cany us well beyond the rule by which legal ambiguities are resolved to the benefit of the Indians. We give this rule the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent. 420 U.S. at 447, 95 S.Ct. at 1094 (emphasis added). The majority, therefore, may not use a canon of construction to create ambiguity where there is none, and there is no ambiguity in Articles I and II.
. Apparently assuming that neither tribal members nor government negotiators kept abreast of significant legislation affecting Indian country, the majority dismisses Article XVII by asserting that "there is no evidence that any party was aware of [the 1892 liquor act] at the time the agreement was negotiated." Maj. Op. at 1450. I am sure that, if Congress had been aware that the plain language of its legislation was insufficient to convey its meaning to future courts, the legislative history in this case would have been much more complete.
. The majority asserts that this provision has "considerably less force” because the reserved sections were explicitly made “ 'subject to the laws of the State of South Dakota.’ " Maj. Op. at 1450 (quoting 1894 Act). I disagree, and find it somewhat illogical to infer a grant of jurisdiction to a tribe over ceded lands because of an explicit grant of jurisdiction to the State of South Dakota over the ceded lands.
. Even assuming that mere legislative history could rebut the almost insurmountable presumption of diminishment created by Articles I and II of the 1894 Act, there is nothing in the legislative history which contradicts the diminishment of the reservation. Although the district court referred to a letter in the legislative history which it believed to support the continued reservation status of the ceded lands, see Yankton Sioux, 890 F.Supp. at 883-86 (quoting S. Exec. Doc. No. 27 at 5), it is apparent that the district court made an erroneous interpretation. The letter relied on by the district court stated that " 'the treaty makes no provision regarding the cession' or relinquishment of the reservation or any portion thereof.’ ” Id. at 883-84 (quoting S.Exec.Doc. 27 at 5). It is clear, and the parties agree, see Appellant’s Motion to Enlarge Record at 1-2; Appellee’s Response to Motion to Enlarge Record at 2, that this letter referred to the Treaty of 1858. The district court, however, misinterpreted this as a reference to the 1892 Agreement: “Most importantly, Armstrong also observed that the Agreement ‘makes no provision regarding the cession or relinquishment of the reservation or any portion thereof.’" Yankton Sioux, 890 F.Supp. at 885-86 (emphasis deleted) (quoting S.Exec.Doc. No. 27 at 5). The only "Agreement” involved in this case, the 1892 Agreement, contained Article I, which expressly provided for the cession of a portion of the Yankton reservation. This fundamental error in the district court’s interpretation of the legislative history of the 1894 Act substantially undermines its determination that the Yankton Sioux Reservation was not diminished.
. Treatment of the area by Congress and the Executive may also have some interpretive value. See Solem, 465 U.S. at 471, 104 S.Ct. at 1166-67. The United States Supreme Court has, however, lypically held this evidence in low regard. In Hagen, the Court noted that “the views of a . subsequent Congress form a hazardous basis of inferring the intent of an earlier one.” 510 U.S. at 420, 114 S.Ct. at 970 (citation and quotations omitted). In Solem,. the United States Supreme Court noted that:
The subsequent treatment of the Cheyenne River Sioux Reservation by Congress, courts, and the Executive is so rife with contradictions and inconsistencies as to be of no help to either side.... [Ample] examples pointing in both directions leave one with the distinct impression that subsequent Congresses had no clear view whether the opened territories were or were not still part of the Cheyenne River Reservation. A similar state of confusion characterizes the Executive’s treatment of the Cheyenne River Sioux Reservation's opened lands.
465 U.S. at 478-79, 104 S.Ct. at 1170-71. See also Rosebud, 430 U.S. at 605 n. 27, 97 S.Ct. at 1372 n. 27 (the "sporadic, and often contradictory, history of congressional and administrative actions in other respects carries but little force”). The examples culled from the record by both the majority, see Maj. Op. at 1453-56, and the district court, see Yankton Sioux, 890 F.Supp. at 886-87, are similarly either “merely passing references,” Hagen, 510 U.S. at 420, 114 S.Ct. at 970 (citations and quotations omitted), or "rife with contradictions." Solem, 465 U.S. at 478, 104 S.Ct. at 1170.
.The majority dismisses the case law of the South Dakota Supreme Court by asserting that it does "not show fall development of the issues or the analytical approach required by the United States Supreme Court.” Maj. Op. at 1451. I disagree. In State v. Thompson, 355 N.W.2d 349 (S.D.1984), the South Dakota Supreme Court applied the analysis provided by the United States Supreme Court in DeCoteau and in Rosebud, and upheld its earlier determination that the Yankton Reservation had been diminished. See id. at 350-51. While the South Dakota Supreme Court's analysis in Thompson is considerably briefer than that performed by the majority in the instant case, I do not believe that accuracy cari necessarily be measured by volume.
The majority also notes that the South Dakota Supreme Court was once reversed by the United States Supreme Court after incorrectly finding that a reservation had been diminished. See Maj. Op. at 1451 n. 20 (citing State v. Janis, 317 N.W.2d 133 (S.D.1982), abrogated in relevant part, Solem, 465 U.S. at 466, 104 S.Ct. at 1163-64 (affirming contrary decision in Bartlett v. Solem, 691 F.2d 420 (8th Cir.1982))). I remind the majority that, while we were right and the South Dakota Supreme Court was wrong in Solem, it *1465was the South Dakota Supreme Court’s finding of diminishment which was upheld, while this Court’s conclusion that a reservation was not diminished was reversed, by the United States Supreme Court in DeCoteau. See 420 U.S. at 449, 95 S.Ct. at 1095 (affirming DeCoteau v. District County Court, 87 S.D. 555, 211 N.W.2d 843 (1973), and reversing United States ex rel. Feather v. Erickson, 489 F.2d 99 (8th Cir.1973)).
. In addition, cases, citing to Perrin have assumed that the Yankton reservation had been diminished. See, e.g., United States v. Mazurie, 419 U.S. 544, 554, 95 S.Ct. 710, 716, 42 L.Ed.2d 706 (1975) (Perrin involved land that "originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United States.”); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 159, 93 S.Ct. 1267, 1276, 36 L.Ed.2d 114 (1973) (Douglas, J., dissenting) (“In the liquor cases the Court held that it reached acts even off Indian reservations in areas normally subject to the police power of the States.” (citing to Perrin)); Johnson v. Gearlds, 234 U.S. 422, 444-45, 34 S.Ct. 794, 802, 58 L.Ed. 1383 (1914) (Perrin involved “ceded lands formerly included in the Yankton Sioux Indian reservation in the State of South Dakota.”).