Application of De Marrias

Citation77 S.D. 294,91 N.W.2d 480
Decision Date23 July 1958
Docket NumberNo. 9700,9700
PartiesApplication of LaVern DE MARRIAS for a Writ of Habeas Corpus.
CourtSupreme Court of South Dakota

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for petitioner-appellant.

Phil Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., for respondent.

HANSON, Judge.

In this habeas corpus proceeding petitioner, LaVern DeMarrias, appeals from an order of the Circuit Court of Minnehaha County denying his release from the state penitentiary.

DeMarrias is an Indian. On April 25, 1957 he was sentenced by the Circuit Court of Roberts County to serve a term of two years in the state penitentiary for the crime of burglary. The burglary was committed on non-Indian patented land within the City of Sisseton, in Roberts County, which city is located within the original exterior boundaries of the Lake Traverse Indian Reservation.

Petitioner challenges the authority of the state to prosecute for the offense committed contending the federal court had sole jurisdiction.

In the field of Indian criminal law jurisdiction is divided between the federal, state, and tribal courts. Cohen, Handbook of Federal Indian Law, p. 358. Jurisdiction in a particular case is dependent upon the following variable factors, viz.: (1) locus of the crime, (2) status of the Indian, and (3) nature or degree of the crime.

In the present case the status of DeMarrias is not questioned. He is a tribal Indian regularly enrolled on the Sisseton-Wahpeton tribal census roll. Furthermore, the offense of burglary constitutes one of the 'ten major crimes'. Title 18, Section 1153, U.S.C.A. provides:

'Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. * * *' (Underscoring added.)

The term 'within the Indian country' is defined in Title 18, Section 1151, U.S.C.A. as follows: '* * * (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United states whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.'

The issue here, therefore, concerns simply the locus of the crime. If the offense was committed 'within the Indian country', the federal court had exclusive jurisdiction otherwise the offense was properly prosecuted in our state court. To determine the question it is necessary to review the various legislative enactments, Indian treaties, and agreements affecting the locality of the crime.

A century ago the territory now comprising the State of South Dakota was all Indian country occupied largely by seven bands of Sioux Indians, namely, the Teton, Yankton, Yanktonai, Mdewakanton, Wahpekute, Sisseton, and Wahpeton.

The original 'Lake Traverse Reservation' now commonly known as the 'Sisseton-Wahpeton Indian Reservation' was created by a Treaty concluded on February 19, 1867 between the United States Government and the Sissiton and Warpeton [sic] Bands of the Dakota or Sioux Indians. 15 Statutes at Large, p. 505. The Reservation was established because '* * * a portion of the Sissiton and Warpeton [sic] bands of Santee Sioux Indians * * * not only preserved their obligations to the government of the United States, during and since the outbreak of the Medewakantons [sic] and other bands of Sioux in 1862, but freely perilled their lives during that outbreak to rescue the residents on the Sioux reservation, and to obtain possession of white women and children made captives by the hostile bands; and that another portion of said Sissiton and Warpeton [sic] bands * * * who did not participate in the massacre of the whites in 1862, fearing the indiscriminate vengeance of the whites, fled to the great prairies of the northwest, where they still remain; * * *.' To provide for these friendly Sisseton-Wahpeton Sioux Indians the treaty set apart the following lands as their permanent reservation:

'Beginning at the head of Lake Travers[e], and thence along the treaty line of the treaty of 1851 to Kampeska Lake; thence in a direct line to Reipan or the northeast point of the Coteau des prairie[s], and thence passing north of Skunk lake, on the most direct line to the foot of Lake Traverse, and thence along the treaty line of 1851 to the place of beginning.' Sisseton is located in Township 126 North Range 51, West of the 5th P.M., South Dakota, which is within the exterior boundaries of the reservation established by the Treaty of 1867.

By the Act of February 22, 1889, Ch. 180, 25 Statutes at Large, p. 676, Congress provided for the division of Dakota Territory into two states and enabled the people of North Dakota, South Dakota, Montana, and Washington to form separate state governments. With reference to Indian lands the Enabling Act provided:

'That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; * * *.'

On December 12, 1889 an 'Agreement' was entered into between the United States Government and the Sisseton and Wahpeton bands of the Dakota or Sioux Indians whereby the 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 bands of Indians as ...

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19 cases
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re
    • United States
    • Wyoming Supreme Court
    • February 24, 1988
    ...supra, it is clear that the same decision would have been reached relying solely on that Act. We quoted from Application of De Marrias, 77 S.D. 294, 91 N.W.2d 480, 482-483 (1958), as " ' * * * It is provided in the Act of Congress ratifying the agreement of 1889: "That the lands by said agr......
  • State v. Winckler
    • United States
    • South Dakota Supreme Court
    • December 16, 1977
    ...Country are matters of exclusive federal jurisdiction and state courts therefore have no power over those crimes. Application of DeMarrias, 77 S.D. 294, 91 N.W.2d 480 (1958). 1 See also United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); White v. Schneckloth, 56 Wash.2......
  • In re Rights to Use Water in Big Horn River
    • United States
    • Wyoming Supreme Court
    • February 24, 1988
    ...supra, it is clear that the same decision would have been reached relying solely on that Act. We quoted from Application of De Marrias, 77 S.D. 294, 91 N.W.2d 480, 482-483 (1958), as "`* * * It is provided in the Act of Congress ratifying the agreement of 1889: "That the lands by said agree......
  • Beardslee v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 21, 1967
    ...The Supreme Court of South Dakota has so ruled repeatedly. State v. Sauter, 48 S.D. 409, 205 N.W. 25, 28 (1925); Application of De Marrias, 77 S.D. 294, 91 N.W.2d 480 (1958); State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959); State v. De Marrias, 79 S.D. 1, 107 N.......
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