[1][3] In 1944, Congress passed the Flood Control Act which allowed the government to purchase land along the Missouri River to build dams.

[1][3] South Dakota then filed suit in the United States District Court for the District of South Dakota, seeking an injunction to prevent the tribe from enforcing its regulations on non-Indian fee land and land taken under the Cheyenne River Act, but was still within the reservation boundaries.

Thomas noted that there was a difference between the 104,420 acres (422.6 km2; 163.16 sq mi) of trust land transferred by the tribe under the Cheyenne River Act and the 18,000 acres (73 km2; 28 sq mi) of non-Indian owned fee lands transferred under the Flood Control Act.

Although Thomas indicated that such an abrogation be clearly expressed, he found that the statutes in question "implies the loss of regulatory jurisdiction" by the tribe.

Although Thomas found that the statute implied the loss rather than clearly stated it, he reversed the opinion of the Eighth Circuit Court.