Petition of High Pine

• Decision Date: 02 November 1959
• Docket Number: No. 9708,9708
• Parties: In the Matter of the Petition of Matthew HIGH PINE and Paul Woman Dress for a Writ of Habeas Corpus.
• Court: South Dakota Supreme Court

Page 38

99 N.W.2d 38

78 S.D. 121

In the Matter of the Petition of Matthew HIGH PINE and Paul Woman Dress for a Writ of Habeas Corpus.

No. 9708.

Supreme Court of South Dakota.

Nov. 2, 1959.

Parnell J. Donohue, Atty. Gen., Wallace G. Dunker, Marshall M. Gerken, Asst. Attys. Gen., John C. Farrar, Rapid City, of counsel, for appellant.

Hanley, Costello & Porter, Rapid City, Richard Schifter, Washington, D. C., of counsel, for respondent.

SMITH, Judge.

A justice of the peace of Shannon County convicted the above named defendant Woman Dress of a charge of public intoxication, committed in said county 'on a public highway' and imposed a ten-day jail sentence. In this proceeding in habeas corpus Woman Dress questioned the jurisdiction of the justice of the peace. At the hearing it was stipulated that Woman Dress is a member of the Oglala Sioux Tribe, and that the offense was committed on a north and south street or road which forms a street in the Pine Ridge Reserve and on a part of the Pine Ridge Indian Reservation. Shannon County is within the exterior boundaries of that Reservation. The trial court held the justice of peace to be without jurisdiction and discharged the defendant from the custody of the sheriff of Shannon County. The sheriff has appealed.

Whether the State of South Dakota has jurisdiction to punish an Indian, a member of the Oglala Sioux Tribe, for intoxication in a public place within the boundaries of the Pine Ridge Reservation, is the principal question presented by this appeal.

The principles which must govern our decision have received authoritative review in the recent case of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 270, 3 L.Ed.2d 251. In that decision the court first quoted the classic language of Chief Justice Marshall as follows:

'The Cherokee nation * * * is a distinct community occupying its own territory * * * in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.' (Worcester v. State of Georgia, 6 Pet. 515, 561, 8 L.Ed. 483).

Then the Williams opinion continues,

'Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. Thus, suits by Indians against outsiders in state courts have been sanctioned. (Citations.) And state courts have been allowed to try non-Indians who committed crimes against each other on a reservation. (Citations.) But if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive. Donnelly v. United States, 228 U.S. 243, 269-272, 33 S.Ct. 449, 458-459, 57 L.Ed. 820; Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962. Essentially, absent governing acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. Cf. Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542.'

Continuing, the opinion reads:

'Congress also has consistently acted upon the assumption that the States have no power to regulate the affairs of Indians on a reservation. * * * Congress has followed a policy calculated eventually to make all Indians full-fledged participants in American society. This policy contemplates criminal and civil jurisdiction over Indians by any State ready to assume the burdens that go with it as soon as the educational and economic status of the Indians permits the change without disadvantage to them. See H.R.Rep. No. 848, 83d Cong., 1st Sess. 3, 6, 7 (1953). Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. State of Georgia has denied.' Emphasis supplied.

It follows that warrant for the exhibited exercise of criminal jurisdiction by the justice of peace of Shannon County must arise from a grant of power by Congress. Cf. 'Criminal Jurisdiction over Indian County in Arizona', Vol. 1, No. 1, 1959 Arizona Law Rev. 63. The sheriff purports to find such a grant and acceptance of jurisdiction in the legislation we are about to consider.

The Act of August 15, 1953, 67 Stat. 588, which extended the civil and criminal laws of California, Minnesota, Nebraska, Oregon and Wisconsin, 28 U.S.C.A. Sec. 1360, 18 U.S.C.A. Sec. 1162, with certain exceptions, to Indian country, included additional sections 28 U.S.C.A. Sec. 1360 note, as follows:

'Section 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.

'Section 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.'

When the quoted federal provisions were enacted in 1953, there existed in South Dakota a provision of Ch. 187, Laws 1951, reading as follows:

'In the absence of treaty or statute of the United States, the state of South Dakota shall have jurisdiction to arrest, prosecute, convict, and punish any person committing any offense under the laws of the state of South Dakota on any Indian Reservation or in the Indian country.'

It is the contention of the sheriff that the federal provisions, supra, in conjunction with the quoted existing statute of South Dakota, operated to extend the criminal jurisdiction and laws of our state to the Pine Ridge Reservation, and hence to sustain the challenged conviction. Analysis of the history and contents of these respective acts has induced the conclusion that such a result was not contemplated by either the Congress or the Legislature.

The report of the legislative history of the Act of August 15, 1953, 67 Stat. 588, supra, appearing in 2 U.S. Code Congressional and Administrative News, 1953, page 2409, reveals that while considering proposed legislation extending criminal laws of California to all Indian country within that state, the committee concluded that legislation in this area should be on a general basis, making provision for all affected states to come within its terms, and that 'the attitude of the various States and the Indian groups within those States on the jurisdiction transfer question should be heavily weighed before effecting transfer * * *.' p. 2412. As a result of consultations with the authorities and Indian groups, the states of California, Minnesota, Nebraska, Oregon, and Wisconsin, excepting specified areas, were authorized to exercise such jurisdiction. Mention of South Dakota was made in the legislative reports in these words:

'Examination of the Federal statutes and State constitutions has revealed that enabling acts for eight States, and in consequence the constitutions of those States, contain express disclaimers of jurisdiction. Included are Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Washington. Effect of the disclaimer of jurisdiction over Indian land within the borders of these States--in the absence of consent being given for future action to assume jurisdiction--is to retain exclusive Federal jurisdiction until Indian title in such lands is extinguished; such States could, under the bill as reported, proceed to amendment of their respective organic laws by proper amending procedure.'

Further mention of South Dakota is made in a report of the Department of Interior, included in the...