St. Cloud v. US, 87-3023.

• Decision Date: 01 December 1988
• Docket Number: No. 87-3023.,87-3023.
• Citation: 702 F. Supp. 1456
• Parties: Richard ST. CLOUD, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of South Dakota

702 F. Supp. 1456

Richard ST. CLOUD, Petitioner, v. UNITED STATES of America, Respondent.

No. 87-3023.

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

December 1, 1988.

Albert C. Jones, Dakota Plains Legal Services, Mission, S.D., for petitioner.

Mikal Hanson, Asst. U.S. Atty., Pierre, S.D., for respondent.

MEMORANDUM OPINION

DONALD J. PORTER, Chief Judge.

Petitioner Richard Norman St. Cloud was indicted on counts of rape under 18 U.S.C. §§ 1153¹ and 2031² and oral sodomy under 18 U.S.C. § 1153 and SDCL 22-22-1(1) and 22-22-2.³ St. Cloud plead guilty in this Court to involuntary sodomy and was sentenced to 25 years imprisonment.⁴ St. Cloud has filed under 28 U.S.C. § 2255 a motion in which he argues that this Court lacked jurisdiction to convict him. Specifically, St. Cloud contends that because he is enrolled in a terminated Indian tribe, he is not an "Indian" and thus cannot be tried in federal court for a crime against a non-Indian. This Court holds that St. Cloud is not subject to federal criminal jurisdiction under the circumstances of this case.

I. FACTS

Richard St. Cloud's nationality is approximately 15/32 Yankton Sioux and 7/16 Ponca.⁵ His father is a member of the Yankton Sioux Tribe, and his mother is enrolled in the Ponca Indian Tribe of Nebraska.

Early in his life, St. Cloud became an enrolled member of the Ponca Indian Tribe. On September 5, 1962, Congress passed legislation to "terminate" the Ponca Indians pursuant to House Concurrent Resolution 108. See 25 U.S.C. §§ 971-980. In accordance with the termination legislation, the Secretary of the Interior compiled a final membership roll and distributed tribal assets to enrolled Ponca Indians. Richard St. Cloud's name appeared on the final roll, and through his parents, St. Cloud received proceeds from the asset distribution.

St. Cloud later moved to the Lower Brule Sioux Indian Reservation where he lived from 1973 until 1986. St. Cloud married an enrolled member of the Lower Brule Sioux Tribe and has several children who also are tribal members. In 1983, St. Cloud applied for enrollment in the Yankton Sioux Tribe. The tribe, however, rejected his application because a provision in the tribe's constitution prohibited St. Cloud from becoming a member since he was enrolled with the terminated Ponca tribe and had received assets from a tribal judgment fund upon Ponca termination.⁶

As a virtually full-blooded Native American, St. Cloud obviously is ethnically an Indian. He is socially recognized and lives as a Native American. In addition, St. Cloud has participated in the Yankton Sioux Tribe's alcohol treatment and counseling programs and has occasionally benefitted from Indian health care. However, due to his membership in a terminated tribe, St. Cloud receives no federal general assistance benefits. St. Cloud, since he is not eligible for full membership in the tribe, cannot vote in tribal elections and does not receive top priority in tribal job assistance programs. St. Cloud benefits from tribal housing and job assistance solely because he is married to a tribal member.

According to the grand jury indictment, St. Cloud forcibly raped and committed involuntary sodomy on an alcohol abuse counselor on April 16, 1986. The counselor had magnanimously offered to drive St. Cloud to a friend's house after counselling St. Cloud. Near the Old Nation Church on the Lower Brule Indian Reservation, St. Cloud, at knife point, forced the treatment counselor out of her car and into an abandoned house where St. Cloud raped her. The treatment counselor is not an Indian.

II. REVIEW UNDER 28 U.S.C. § 2255

St. Cloud has chosen to challenge federal criminal jurisdiction over his case by filing a motion under 28 U.S.C. § 2255. Section 2255 specifically provides relief for circumstances when the sentencing court lacked jurisdiction. St. Cloud's failure to present a jurisdictional argument at a prior stage of the proceedings does not prevent him from collaterally attacking the sentence under § 2255. Thor v. United States, 554 F.2d 759 (5th Cir.1977). Similarly, St. Cloud's plea of guilty to a federal offense does not waive a lack of subject matter jurisdiction. See United States v. Gotches, 547 F.2d 80, 82 (8th Cir.1977); United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80. St. Cloud's claim that he is not an Indian under 18 U.S.C. § 1153 raises a question about subject matter jurisdiction of this Court to accept the guilty plea and sentence St. Cloud. United States v. Heath, 509 F.2d 16, 19 (9th Cir.1974). Therefore, this Court is obliged under § 2255 to determine whether St. Cloud is an "Indian" subject to federal criminal jurisdiction.

III. CRIMINAL JURISDICTION OVER NATIVE AMERICANS

It is axiomatic that the federal government has a special trust relationship with Native Americans under which the United States bears a particular responsibility for preserving and protecting the Indian people. To sustain these obligations, Congress has "plenary power" over Native Americans, though the tribes constitute separate sovereigns from the federal government. In pursuance of its responsibilities and power, Congress has passed several laws establishing a jurisdictional framework for crimes involving Native Americans in Indian country. Under this framework, three distinct sovereign entities — the state, federal government, and tribe — share criminal jurisdiction. Determining which sovereign or sovereigns have jurisdiction turns on a two-step inquiry: 1) where the offense took place; and 2) whether the defendant or victim was Indian or non-Indian.

A. Situs of the Crime.

Federal courts possess jurisdiction over Indian crimes only within Indian country.⁷ State courts have exclusive criminal jurisdiction over crimes occurring outside of Indian country. Similarly, where Congress has specifically granted jurisdiction over Indian country to state courts through special grants like Public Law 280, state courts possess jurisdiction.

St. Cloud's criminal acts clearly occurred in Indian country on the Lower Brule Sioux Indian Reservation. See 18 U.S.C. § 1151 (defining "Indian country"); Donnelly v. United States, 228 U.S. 243, 269, 33 S.Ct. 449, 458, 57 L.Ed. 820 (1913) (nothing more appropriately deemed Indian country than land set apart as Indian reservation). Congress has not chosen to subject the Lower Brule Sioux Indian Reservation to state court criminal jurisdiction. Therefore, the crime did not occur on territory where an offense of rape would be within the exclusive jurisdiction of a state court.

B. Defendant-Victim Categorization.

Criminal jurisdiction in Indian country does not rely on a racial classification but depends on whether a person enjoys the unique status of sufficient links to a formerly sovereign nation to be an "Indian." United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395, 1398-99, 51 L.Ed.2d 701 (1977). To determine which sovereign has jurisdiction over a particular offense, a court must evaluate whether the defendant and victim is Indian or non-Indian. If both defendant and victim are Indians, state courts do not have jurisdiction, and federal and tribal courts share jurisdiction. If the defendant is a non-Indian and the victim is an Indian, federal courts have exclusive jurisdiction over the offense. See D. Getches & C. Wilkinson, Federal Indian Law 412-15 (2d ed.1986). Since St. Cloud's victim was not an Indian, the offense at hand does not fit into either of these first two categories. See generally Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).

If St. Cloud is an Indian, state courts have no jurisdiction to prosecute him for the rape of the non-Indian counselor. See, e.g., United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir.1973). (South Dakota has no jurisdiction to convict Indian for rape of non-Indian committed in Indian Country). The federal courts have jurisdiction under the Major Crimes Act, the Indian Country Crimes Act and the Assimilative Crimes Act. See United States v. John, 587 F.2d 683, 686-87 (5th Cir.1979), cert denied, 441 U.S. 925, 99 S.Ct. 2036, 60 L.Ed.2d 399. Tribal courts may have concurrent jurisdiction.

However, if St. Cloud is not an Indian, state courts have exclusive jurisdiction to prosecute him for a crime against a non-Indian. Federal and tribal courts lack jurisdiction over a crime in which both the victim and the defendant are non-Indians. United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1881); see also United States v. Wheeler, 435 U.S. 313, 324 n. 21, 98 S.Ct. 1079, 1087 n. 21, 55 L.Ed.2d 303 (1978). Therefore, whether St. Cloud is an "Indian" for purposes of federal criminal jurisdiction is determinative of jurisdiction over St. Cloud.

IV. "INDIAN" FOR PURPOSES OF CRIMINAL JURISDICTION

A. The Meaning of "Indian."

The word "Indian" has become a legal term of art with varying definitions depending on the context. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503, 515 (1976). Though there are a variety of statutory definitions of "Indian",⁸ Congress has not defined "Indian" as used in the statutes governing criminal jurisdiction. In United States v. Rogers, 45 U.S. (4 How.) 567, 11 L.Ed. 1105 (1846), the Supreme Court suggested that a person not only had to abide by Indian customs, but also had to have Indian blood in order to be an Indian. The Court in Rogers held that a white man could not become an Indian despite the man's adoption into the Cherokee Indian Tribe. The Court thus held the man to be subject to criminal jurisdiction. A number of courts have read Rogers to establish a two-part test of whether a person is an Indian under federal criminal jurisdiction by inquiring whether a person has some Indian blood and whether the person is recognized as an Indian. United States v. Broncheau, ...