De Marrias v. State of South Dakota, Civ. No. 922 N.D.

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Writing for the CourtBECK
Citation206 F. Supp. 549
PartiesLaVern DE MARRIAS, Petitioner, v. STATE OF SOUTH DAKOTA, Respondent.
Docket NumberCiv. No. 922 N.D.
Decision Date27 July 1962

206 F. Supp. 549

LaVern DE MARRIAS, Petitioner,
v.
STATE OF SOUTH DAKOTA, Respondent.

Civ. No. 922 N.D.

United States District Court D. South Dakota, N. D.

July 27, 1962.


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

206 F. Supp. 550

A. C. Miller, Atty. Gen. of S. D., Harold C. Doyle, U. S. Atty., Sioux Falls, S. D., and Frank Farrar, State's Atty., Britton, S. D., for respondent.

BECK, District Judge.

The petitioner's writ of habeas corpus, poses the question, whether the Circuit Court for the Fifth Judicial Circuit of South Dakota had jurisdiction to charge, try, convict and to sentence him for third degree burglary, SDC 13.3703 as amended, he at the time being an enrollee of the Sisseton-Wahpeton Sioux Indian Tribe, the crime having been committed on non-Indian patented land, within the original exterior boundaries of the Lake Traverse Reservation.

This state's Supreme Court on appeal, State v. De Marrias, S.D., 107 N.W.2d 255 (1961), affirmed the trial court as it held against the petitioner on the jurisdictional question with like result on a writ of certiorari denied on October 9, 1961, 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed. 2d 42. See also application of De Marrias, 77 S.D. 294, 91 N.W.2d 480 (1958).

Generally, it is his position that the crime is one of the ten major ones referred to in Title 18 U.S.C.A., § 1153, which 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. * *" (Emphasis supplied).

and that the locus of the crime is "within the Indian country", Title 18 U.S.C.A., § 1151, where it is defined as:

"* * * (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." Amendment 63 Stat. 94.

Otherwise expressed, he submits, that all lands within the limits of any "Indian reservation" has reference to all lands within the original exterior boundaries of Lake Traverse Reservation, and that the United States for that reason had exclusive jurisdiction since the crime was committed within those boundaries.

Pertinent to the inquiry thus compelled are the applicable provisions of the aforementioned sections, those of the Enabling Act of February 22, 18891:

"That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; * *.",

others in the December 12, 1889 Agreement2 between the Government and the Sisseton and Wahpeton bands of the Dakota or Sioux Indians, by which they:

"* * * hereby cede, sell, relinquish, and convey to the United States all their claim, right, title and
206 F. Supp. 551
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
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10 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
    ...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, 97-98 (10 Cir. 1950); Bird in the Ground v. Dis......
  • United States ex rel. Feather v. Erickson, No. 73-1453 to 73-1459 and 73-1541 to 73-1543.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 7, 1973
    ...the reservation land to the public domain and thereby removed it from the category of Indian country. See DeMarrias, supra affirming 206 F.Supp. 549 (D.S.D.1962). For reasons that will become evident we find it necessary to depart from the holding in The Lake Traverse reservation was establ......
  • State v. Barnes, No. 10215
    • United States
    • Supreme Court of South Dakota
    • November 3, 1965
    ...v. Sauter, 48 S.D. 409, 205 N.W. 25. See also United States v. LaPlant, 8 Cir., 200 F. 92; De Marrias v. State of South Dakota, D.C., 206 F.Supp. 549, 8 Cir., 319 F.2d 845. Respondent recognizes these holdings, but he says that a document entitled Order of Restoration issued by the Secretar......
  • DeCoteau v. District County Court for Tenth Judicial Dist., No. 11200
    • United States
    • Supreme Court of South Dakota
    • October 31, 1973
    ...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; W......
  • Request a trial to view additional results
10 cases
  • Beardslee v. United States, No. 18565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 21, 1967
    ...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, 97-98 (10 Cir. 1950); Bird in the Ground v. Dis......
  • United States ex rel. Feather v. Erickson, No. 73-1453 to 73-1459 and 73-1541 to 73-1543.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 7, 1973
    ...the reservation land to the public domain and thereby removed it from the category of Indian country. See DeMarrias, supra affirming 206 F.Supp. 549 (D.S.D.1962). For reasons that will become evident we find it necessary to depart from the holding in The Lake Traverse reservation was establ......
  • State v. Barnes, No. 10215
    • United States
    • Supreme Court of South Dakota
    • November 3, 1965
    ...v. Sauter, 48 S.D. 409, 205 N.W. 25. See also United States v. LaPlant, 8 Cir., 200 F. 92; De Marrias v. State of South Dakota, D.C., 206 F.Supp. 549, 8 Cir., 319 F.2d 845. Respondent recognizes these holdings, but he says that a document entitled Order of Restoration issued by the Secretar......
  • DeCoteau v. District County Court for Tenth Judicial Dist., No. 11200
    • United States
    • Supreme Court of South Dakota
    • October 31, 1973
    ...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; W......
  • Request a trial to view additional results

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