DeCoteau v. District County Court for Tenth Judicial Dist.

• Decision Date: 31 October 1973
• Docket Number: No. 11200,11200
• Parties: Application of Cheryl Spider DeCOTEAU, natural mother and next friend and on behalf of Robert Lee Feather and Herbert John Spider for a Writ of Habeas Corpus, Petitioner and Appellant, v. The DISTRICT COUNTY COURT FOR the TENTH JUDICIAL DISTRICT, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 843

211 N.W.2d 843

87 S.D. 555

Application of Cheryl Spider DeCOTEAU, natural mother and next friend and on behalf of Robert Lee Feather and Herbert John Spider for a Writ of Habeas Corpus, Petitioner and Appellant, v. The DISTRICT COUNTY COURT FOR the TENTH JUDICIAL DISTRICT Defendant and Respondent.

No. 11200.

Supreme Court of South Dakota.

Oct. 31, 1973.

Bertram E. Hirsch, New York City, for petitioner and appellant.

Thomas R. Vickerman, Asst. Atty. Gen., Pierre, for defendant and respondent; Kermit A. Sande, Atty. Gen., Robert Krogstad, Sp. Asst. Atty. Gen., Pierre, on the brief.

DOYLE, Justice.

This is an appeal from the judgment of the Circuit Court of Roberts County denying appellant's petition for a Writ of Habeas Corpus to release her two children from the custodial process of the district county court.

The essential facts are undisputed. Appellant, Cheryl Spider DeCoteau, is the mother of Robert Lee Feather and Herbert John Spider. All are members of the Sisseton-Wahpeton Sioux Tribe. The youngest child, Robert, was given up for adoption by his mother on March 12, 1971. The older child was placed in a foster home by the county court after neglect and dependency proceedings were initiated by the Welfare Department. Both children are in foster home care at present by order of the county court of August 4, 1972.

It was stipulated by the parties that approximately fifty percent of the acts or omissions giving rise to the county court orders occurred on federal trust lands, and approximately fifty percent of said acts or omissions occurred on non-Indian patented lands, all within the exterior boundaries of the Lake Traverse Reservation, as originally established by the Treaty of February 19, 1867. 15 Stat. 505.

The appellant's petition for a Writ of Habeas Corpus challenged the jurisdiction of the state court. Whether the state court had jurisdiction depends on whether the non-Indian patented lands, where a portion of the acts or omissions occurred, are within 'Indian Country'.

In 1948 Congress enacted a statutory definition of what constitutes 'Indian Country':

'Except as otherwise provided in sections 1154 and 1156 of this title, the term 'Indian country', as used in this chapter, means (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.' Act of June 25, 1948, c. 645, 62 Stat. 757, as amended 18 U.S.C.A. § 1151 (1970).

If the non-Indian patented lands (situs) involved in the present case are within this definition of 'Indian Country' then the state courts of South Dakota have no jurisdiction, for the law is established that state jurisdiction does not extend to Indians in 'Indian Country'. Williams v. Lee, 1959, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251; State of Arizona ex rel. Merrill v. Turtle, 1969, 9 Cir., 413 F.2d 683; Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res., 1956, 8 Cir., 231 F.2d 89; United States ex rel. Condon v. Erickson, D.C.S.D., 344 F.Supp. 777; Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547; State v. Molash, 1972, S.D., 199 N.W.2d 591.

Numerous cases regarding state jurisdiction over Indians have been before this court and we have consistently held that if the reservation is disestablished by Congressional action and the situs of the act or crime is located on the portion of the reservation so dissolved, then the state courts have jurisdiction. Application of DeMarrias, 1958, 77 S.D. 294, 91 N.W.2d 480; State V. DeMarrias, 1961, 79 S.D. 1, 107 N.W.2d 255, cert. den., 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42; DeMarrias v. State of South Dakota, 1962, D.C.S.D., 206 F.Supp. 549; DeMarrias v. State of South Dakota, 1963, 8 Cir., 319 F.2d 845; State ex rel. Hollow Horn Bear v. Jameson, 1959, 77 S.D. 527, 95 N.W.2d 181; Wood v. Jameson, 1964, 81 S.D. 12, 130 N.W.2d 95.

In order to determine whether the non-Indian patented lands (situs) are in 'Indian Country', it is necessary to review the history of the 'Lake Traverse Reservation', now commonly known as the 'Sisseton-Wahpeton Indian Reservation', and all applicable legislation pertaining thereto.

In 1867, the United States, by treaty, set aside a permanent reservation for the Sisseton and Wahpeton Bands. Treaty of February 19, 1867, 15 Stat. 505, ratified April 15, 1867, Proclamation May 2, 1867:

'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.'

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, Act of March 3, 1891, 26 Stat. 989, at 1036, 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 aforesaid remaining after the allotments and additional allotments provided for in article four of this agreement shall have been made.'

This agreement further provided that the United States would pay to the Sisseton and Wahpeton Bands of Indians the sum of two dollars and fifty cents per acre for every acre thus ceded, sold, relinquished, and conveyed to the United States. It was agreed by the parties that this sum of money, with interest to accrue, would be held in the Treasury of the United States for the sole use and benefit of the Indians.

By the very terms of this agreement, the Sisseton and Wahpeton Bands of Indians sold their unallotted lands, and the United States Government paid a sum certain for each and every acre purchased. The money was deposited in the United States Treasury and the United States agreed to pay interest thereon. All the money was to be used for the sole benefit of the Indians. This, then, was an outright cession and sale of lands by the Indians to the United States. The land sold was separated from the reservation by Congress and became part of the public domain.* In this agreement the United States did not contract to act as trustee to sell...