Kain v. Wilson

• Decision Date: 15 October 1968
• Docket Number: No. 10438,10438
• Citation: 83 S.D. 482,161 N.W.2d 704
• Parties: Ruben KAIN, Plaintiff and Appellant, v. Frank WILSON, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 704

161 N.W.2d 704

83 S.D. 482

Ruben KAIN, Plaintiff and Appellant, v. Frank WILSON, Defendant and Respondent.

No. 10438.

Supreme Court of South Dakota.

Oct. 15, 1968.

John C. Farrar, Gunderson, Farrar & Aldrich, Rapid City, for plaintiff and appellant.

Dennis H. Hill, Costello, Porter, Hill, Banks & Nelson, Rapid City, for defendant and respondent.

HANSON, Presiding Judge.

Plaintiff, Ruben Kain, is a non-Indian owner of ranch land located in Shannon County within the exterior boundaries of the closed or diminished portion of the Pine Ridge Indian Reservation. Shannon County is unorganized and attached to Fall River County for political and judicial purposes. Defendant, Frank Wilson, is an enrolled member of the Oglala Sioux Indian Tribe. For cause of action plaintiff alleges in his complaint that defendant wrongfully entered upon plaintiff's land; grazed cattle for more than six years without plaintiff's consent; and the reasonable value of the premises wrongfully occupied and used by defendant is the sum of $5,760.00 no part of which has been paid. The trial court granted defendant's motion to dismiss the alleged cause of action for lack of jurisdiction and plaintiff appeals.

Service of process was made on defendant by leaving copies of the summons and complaint with defendant's wife at a dwelling house in Hot Springs which is located in Fall River County outside the boundaries of the Pine Ridge Indian Reservation. It is suggested that the house in Hot Springs was not defendant's dwelling as he resided on a ranch in Shannon County at the time substituted service of process was made. However, for the purpose of considering the motion to dismiss we may assume the trial court acquired jurisdiction over the person of the defendant by the substituted service of process. The critical question remains as to whether or not the court has jurisdiction to hear and determine the alleged cause of action for wrongful use and possession of real property situated within the closed portion of an Indian Reservation by a tribal Indian defendant.

Plaintiff concedes state courts have no jurisdiction over causes of action arising on federally owned land and land held in trust by the United States in Shannon County. However, he contends state courts have jurisdiction over the alleged cause of action as patents have been issued to the land in question and title thereto is vested in a non-Indian. This contention overlooks the distinction between the 'open' and 'closed' portions of an Indian Reservation and the further important jurisdictional fact that defendant is a tribal Indian.

Shannon, Washabaugh, and Bennett Counties are all located within the original exterior boundaries of the Pine Ridge Indian Reservation as designated by the Congressional Act of April 30, 1888, Ch. 206, 25 Stat. 94, and Act of March 2, 1889, Ch. 405, 25 Stat. 888. In 1910 unallotted and unreserved lands in the Pine Ridge Reservation located in Bennett County were opened to settlement by non-Indians under the general homestead and townsite laws. Act of May 27, 1910, Ch. 257, 36 Stat. 440. The remaining 'closed' or 'diminished' portion of the Reservation includes Shannon County in its entirety.

So far as pertinent the term 'Indian Country' for criminal jurisdictional purposes is defined is 18 U.S.C.A. § 1151 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 * * * and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.' To avoid 'an impractical pattern of checkerboard jurisdiction' the United States Supreme Court interpreted subsection (a) of § 1151 to apply to the closed portions of Indian Reservations, Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346. Likewise, our court has held in numerous cases that the 'closed' portion of an Indian Reservation constitutes 'Indian Country' in which our state courts have no jurisdiction over crimes committed by tribal Indians. Application of De Marrias, 77 S.D. 294, 91 N.W.2d 480; State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181, in which the court said 'it seems logical to believe that the Congress intended subsection (a) (of 18 U.S.C.A. § 1151) to apply to the closed area of reservations, and (c) to apply to allotted lands in open territory'; In Re High Pine's Petition, 78 S.D. 121, 99 N.W.2d 38; State v. De Marrias, 79 S.D. 1, 107 N.W.2d 255, cert. den., 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42; Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171; In re Hankins' Petition, 80 S.D. 435, 125 N.W.2d 839; Wood v. Jameson, 81 S.D. 12, 130 N.W.2d 95; State v. Barnes, 81 S.D. 511, 137 N.W.2d 683; and State ex rel. Swift v. Erickson, S.D., 141 N.W.2d 1.

In Smith v. Temple, S.D., 152 N.W.2d 547, this court concluded that criminal and civil...