Lafferty v. State, for and in Behalf of Jameson

Decision Date17 December 1963
Docket NumberNo. 10063,10063
Citation80 S.D. 411,125 N.W.2d 171
PartiesApplication of Henry LAFFERTY for Writ of Habeas Corpus, Applicant and Appellant, v. STATE of South Dakota, for and in Behalf of G. Norton JAMESON, Warden of South Dakota State Penitentiary, Respondent.
CourtSouth Dakota Supreme Court

Robert L. O'Connor, Sioux Falls, for applicant and appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.

RENTTO, Judge.

An information filed in the Circuit Court of the Twelfth Judicial Circuit by the State of South Dakota, charged the applicant, Henry Lafferty, with having committed the crime of rape in the second degree in Ziebach County, South Dakota, on August 15, 1960. On arraignment he appeared with counsel and pleaded guilty. Upon such plea he was found guilty as charged and sentenced to five years in the State Penitentiary. This appeal presents the contention that the state lacked jurisdiction to proceed against him.

While confined in the penitentiary he applied to the Circuit Court of the Second Judicial Circuit for a writ of habeas corpus claiming that because he was an Indian ward of the United States government enrolled on the census rolls on the Cheyenne River Indian Reservation, and his offense was committed in Indian country, it was within the exclusive jurisdiction of the Federal court. The writ was issued, but after a hearing thereon, at which he appeared with counsel, the trial court found that the offense was not committed within Indian country, quashed the writ and denied the applicant any relief. He appeals.

It is conceded by all parties that if the locus of this offense was within Indian country, the other essentials are present to bring it within the exclusive jurisdiction of the United States under the provisions of 18 U.S.C.A. Sec. 1153, the ten major crimes statute. Nor is there any dispute as to where the act took place. The parties stipulated that it was committed on Lot 26 of Kennedy's Acreage, which is incorporated into the town of Dupree, Ziebach County, South Dakota. There is nothing in the evidence, nor in the patent issued therefor to Robert M. Kennedy on June 11, 1912, to indicate that the United States ever in any manner reserved title to this area or that it was ever previously allotted to an Indian.

What constitutes Indian country has been declared by the Congress. 18 U.S.C.A. Sec. 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, 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.'

In the circumstances of this case we are not concerned with subsections (b) or (c). Applicant's claim of Federal jurisdiction, as we understand it, is predicated only on subsection (a).

The Cheyenne River Indian Reservation was created by the Act of April 30, 1888, Ch. 206, 25 Stat. 94, and the Act of March 2, 1889, Ch. 405, 25 Stat. 888. It is agreed by the parties that the area now occupied by the town of Dupree, including Kennedy's Acreage, is within the boundaries of the reservation as defined in those laws. The next Federal enactment of importance in this matter is the Act of May 29, 1908, Ch. 218, 35 Stat. 460. It concerns an area of the Cheyenne River Indian Reservation and an area of the Standing Rock Indian Reservation. The parties also agree that the above described townsite is within the area of the Cheyenne River Indian Reservation described in this act, but they differ as to whether the act changed the character of such premises from Indian county to non-Indian country.

The 1908 Act authorized and directed the Secretary of the Interior to sell and dispose of all that portion of the Cheyenne River Indian Reservation described therein, containing probably more than one-half of the lands of the original reservation and being a solid contiguous area along its northern and western boundaries, except such portions thereof as have been allotted to Indians, and other provisos not here material. Such lands were to be disposed of under the homestead and townsite laws of the United States and be opened to settlement and entry by proclamation of the President. The net proceeds of these sales were to be deposited at interest in the Treasury and used for the benefit of the Indians of the reservation. Sections 16 and 36 of each township were reserved for the common schools of the state. Apparently the town of Dupree came into being in 1910 under section 5 of this act.

Significantly, it further provided that prior to such proclamation the Secretary of the Interior, in his discretion, may permit Indians who have an allotment within the area described 'to relinquish such allotment and to receive in lieu thereof an allotment anywhere within the respective reservations thus diminished'. See United States v. La Plant, 8 Cir., 200 F. 92. Also indicative of the intent of the Congress is the provision that Indians residing upon their allotments in certain townships in the area described, shall have the right to use the timber in said townships for domestic purposes 'only as long as the lands remain part of the public domain.' The effect of such act is decisive of this litigation.

In State ex rel. Raymond Edward Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181, we discussed a substantially similar enactment involving the Pine Ridge Indian Reservation, saying:

'That the act was motivated by a congressional purpose to reduce the area of Pine Ridge is manifest. In effect it separated the reservation into two parts. That which the act denominates as the 'diminished' reservation, and which we elect to refer to as the 'closed' portion of the reservation, was to remain unchanged and to continue to serve the purposes of the government in protecting and dealing with the whole Indian population of the...

To continue reading

Request your trial
19 cases
  • United States ex rel. Miner v. Erickson, 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 June 1970
    ...all Indian title to the land. The South Dakota Supreme Court has relied upon La Plant in a similar holding. Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171 (1963). The difficulty with reliance upon the La Plant case is the expressed overruling of the case by this court some 46 years later. S......
  • U.S. v. Dupris, 78-1575
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 27 November 1979
    ...jurisdiction in the opened area on nonallotted land. See, e. g., United States v. La Plant, 200 F. 92 (D.S.D.1911); Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171 (1963); State v. Sauter, 48 S.D. 409, 205 N.W. 25 (1925). At trial Mr. Aberle, the present States Attorney for Dewey County, Sou......
  • Beardslee v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 21 December 1967
    ...State v. De Marrias, 79 S.D. 1, 107 N.W.2d 255 (1961), cert. denied 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42; Lafferty v. State ex rel. Jameson, 80 S.D. 411, 125 N.W.2d 171 (1963); Wood v. Jameson, 81 S.D. 12, 130 N.W.2d 95 (1964); State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965); State e......
  • State v. Perank, 860243
    • United States
    • Supreme Court of Utah
    • 17 July 1992
    ...478 F.2d 684 (8th Cir.1973); Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001, 1005 (D.Minn.1971); Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171, 174 (1963). On the basis of the above, we conclude that operative statutory language that restores reservation land to the public......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT