Application of De Marrias, No. 9700

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

Page 480

91 N.W.2d 480
77 S.D. 294
Application of LaVern DE MARRIAS for a Writ of Habeas
Corpus.
No. 9700.
Supreme Court of South Dakota.
July 23, 1958.

[77 S.D. 296] 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.)

[77 S.D. 297] 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.'

Page 482

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...

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19 practice notes
  • Beardslee v. United States, No. 18565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 21, 1967
    ...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.W.2d......
  • State v. Winckler, Nos. 11787
    • United States
    • Supreme Court of South Dakota
    • December 16, 1977
    ...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.2d 173, 3......
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re, Nos. 85-203
    • United States
    • United States State Supreme Court of Wyoming
    • 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......
  • In re Rights to Use Water in Big Horn River, No. 85-203 to 85-205
    • United States
    • United States State Supreme Court of Wyoming
    • 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......
  • Request a trial to view additional results
19 cases
  • Beardslee v. United States, No. 18565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 21, 1967
    ...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.W.2d......
  • State v. Winckler, Nos. 11787
    • United States
    • Supreme Court of South Dakota
    • December 16, 1977
    ...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.2d 173, 3......
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re, Nos. 85-203
    • United States
    • United States State Supreme Court of Wyoming
    • 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......
  • In re Rights to Use Water in Big Horn River, No. 85-203 to 85-205
    • United States
    • United States State Supreme Court of Wyoming
    • 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......
  • Request a trial to view additional results

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