DeMarrias v. State of South Dakota, No. 17200.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVOGEL, VAN OOSTERHOUT and RIDGE, Circuit
Citation319 F.2d 845
Decision Date22 July 1963
Docket NumberNo. 17200.
PartiesLaVern DeMARRIAS, Appellant, v. STATE OF SOUTH DAKOTA, Appellee.

319 F.2d 845 (1963)

LaVern DeMARRIAS, Appellant,
v.
STATE OF SOUTH DAKOTA, Appellee.

No. 17200.

United States Court of Appeals Eighth Circuit.

July 22, 1963.


L. R. Gustafson, Britton, S. D., for appellant.

Frank L. Farrar, Atty. Gen., Pierre, S. D., for appellee; Walter Weygint, Asst. Atty. Gen., Pierre, S. D., with him on the brief, together with Harold C. Doyle, U. S. Atty., Sioux Falls, S. D., and Parnell J. Donohue, Asst. U. S. Atty., Sioux Falls, S. D., amicus curiae.

Before VOGEL, VAN OOSTERHOUT and RIDGE, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by LaVern DeMarrias from final order of the district court denying him a writ of habeas corpus. Appellant was prosecuted and convicted in the courts of South Dakota on a charge of burglary committed within that state. His conviction was affirmed. State of South Dakota v. DeMarrias, S.D., 107 N.W.2d 255. Certiorari was denied. 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42. The sole issue raised in the state court appeal and here is whether the state court had jurisdiction to try and convict the appellant.

18 U.S.C.A. § 1153 provides that federal courts shall have exclusive jurisdiction over 10 major crimes committed by

319 F.2d 846
Indians in Indian country. Burglary, such as here charged, is included in the 10 major crimes. It is conceded that the appellant is an Indian and is a duly enrolled member of the Sisseton-Wahpeton-Sioux Indian Tribe which is based in the Lake Traverse Reservation in South Dakota. It is also undisputed that the crime was committed upon land which was included in the original Indian reservation created by treaty between the Indians and the Federal Government. The controverted issue is whether, in view of the subsequent developments hereinafter discussed, the place of the crime was within Indian country as such term is used in the federal statutes. 18 U.S.C.A. § 1151 provides
"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, * * *."

The trial court held that the state court acted within its jurisdiction in trying and convicting the appellant of the burglary offense charged and denied the writ. The court rejected appellant's contention that under the circumstances of this case Indian country includes all lands within the original exterior boundaries of the reservation. The court, in a carefully considered opinion reported in 206 F.Supp. 549, cites and sets out portions of the agreement entered into in 1889 between the Government and the Tribe wherein it was agreed that more land was included in the reservation than needed and that for an agreed consideration the Tribe cede, sell, relinquish, and convey to the United States all right, title and interest in unallotted lands in the original reservation (26 Stat. 1035-1038), and that such agreement was ratified by Congress in 1891 (26 Stat. 1038-39), and that the lands thus acquired from the Indians were made available...

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17 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
    ...is the obvious inferential holding of Seymour and is the direct holding in the following cases, among others: De Marrias v. South Dakota, 319 F.2d 845 (8 Cir. 1963), affirming 206 F.Supp. 549 (D.S.D.1962); Ellis v. Page, 351 F.2d 250 (10 Cir. 1965); Tooisgah v. United States, 186 F.2d 93, 9......
  • State v. Perank, No. 860243
    • United States
    • Supreme Court of Utah
    • July 17, 1992
    ...1361, 51 L.Ed.2d 660 (1977); United States ex rel. Condon v. Erickson, 478 F.2d 684, 687-88 (8th Cir.1973); DeMarrias v. South Dakota, 319 F.2d 845, 846 (8th Cir.1963); Russ v. Wilkins, 624 F.2d 914-15, 924, 927-29 (9th Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1976, 68 L.Ed.2d 296 (......
  • Robinson v. Wolff, Civ. No. 1713 L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • February 14, 1972
    ...outside the territorial confines of an Indian reservation was within state criminal jurisdiction. DeMarrias v. State of South Dakota, 319 F.2d 845 (C.A. 8th Cir. In 1885 the enactment of 18 U.S.C.A. § 1153 did grant to the United States exclusive jurisdiction over the crimes enumerated ther......
  • Coteau v. Erickson v. Feather 8212 1148, 73 8212 1500, Nos. 73
    • United States
    • United States Supreme Court
    • March 3, 1975
    ...District Court summarily denied the petitions, but the Court of Appeals for the Eighth Circuit reversed.6 In DeMarrias v. South Dakota, 319 F.2d 845, that court had previously held that the 1891 Act had terminated the Lake Traverse Reservation leaving only allotted Indian lands within triba......
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17 cases
  • Beardslee v. United States, No. 18565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 21, 1967
    ...is the obvious inferential holding of Seymour and is the direct holding in the following cases, among others: De Marrias v. South Dakota, 319 F.2d 845 (8 Cir. 1963), affirming 206 F.Supp. 549 (D.S.D.1962); Ellis v. Page, 351 F.2d 250 (10 Cir. 1965); Tooisgah v. United States, 186 F.2d 93, 9......
  • State v. Perank, No. 860243
    • United States
    • Supreme Court of Utah
    • July 17, 1992
    ...1361, 51 L.Ed.2d 660 (1977); United States ex rel. Condon v. Erickson, 478 F.2d 684, 687-88 (8th Cir.1973); DeMarrias v. South Dakota, 319 F.2d 845, 846 (8th Cir.1963); Russ v. Wilkins, 624 F.2d 914-15, 924, 927-29 (9th Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1976, 68 L.Ed.2d 296 (......
  • Robinson v. Wolff, Civ. No. 1713 L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • February 14, 1972
    ...outside the territorial confines of an Indian reservation was within state criminal jurisdiction. DeMarrias v. State of South Dakota, 319 F.2d 845 (C.A. 8th Cir. In 1885 the enactment of 18 U.S.C.A. § 1153 did grant to the United States exclusive jurisdiction over the crimes enumerated ther......
  • Coteau v. Erickson v. Feather 8212 1148, 73 8212 1500, Nos. 73
    • United States
    • United States Supreme Court
    • March 3, 1975
    ...District Court summarily denied the petitions, but the Court of Appeals for the Eighth Circuit reversed.6 In DeMarrias v. South Dakota, 319 F.2d 845, that court had previously held that the 1891 Act had terminated the Lake Traverse Reservation leaving only allotted Indian lands within triba......
  • Request a trial to view additional results

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