State ex rel. Hollow Horn Bear v. Jameson, 9685

Citation77 S.D. 527,95 N.W.2d 181
Decision Date03 March 1959
Docket NumberNo. 9685,9685
PartiesSTATE of South Dakota ex rel. Raymond Edward HOLLOW HORN BEAR, Plaintiff and Appellant, v. G. Norton JAMESON, Warden, South Dakota Penitentiary, Defendant and Respondent.
CourtSupreme Court of South Dakota

Harold Benedict, Colman, for plaintiff and appellant.

Phil W. Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., for defendant and respondent.

SMITH, Judge.

In this habeas corpus proceeding the applicant for the writ, an enrolled tribal member of the Pine Ridge Indian Reservation, questions the jurisdiction of the Circuit Court of Bennett County, South Dakota, which in 1955 convicted him of the crime of forgery in the third degree. He asserts that the state court was without jurisdiction because the offense was committed within 'Indian country' as defined by 18 U.S.C.A. Sec. 1151. The court below held the locus of the offense was not within Indian country and entered its order remanding the applicant to the custody of the warden of the penitentiary of South Dakota. The applicant has appealed.

By 18 U.S.C.A. Sec. 1152 the general laws of the United States as to the punishment of crimes are extended to 'Indian country' and that term is defined by Sec. 1151 of that Title. So far as pertinent to the contention of the applicant, that definition reads as follows: '* * * 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) * * * (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.'

The briefs of counsel lead us to believe there was a conflict in the evidence as to the exact locus of the offense. The brief of the applicant asserts the crime was committed on the right-of-way adjacent to what is known as the 'Coop Station' at the intersection of U. S. 18 and U. S. 73 at the south limits of the city of Martin, South Dakota. The warden insists the offense was committed at the Coop Station on deeded land. As required by SDC 37.5504 the trial court proceeded in a summary way to settle the facts by hearing the evidence, and incorporated in its order findings which support the position of the warden. A transcript of the testimony is not included in the settled record. Therefore we are unable to pass on the sufficiency of the evidence to support the findings of the court. Hence our review must proceed in the light of the court's findings. Because the record does include a patent dated in November of 1923 describing the property upon which the Coop Station is located, we assume that it is the patent to which the findings make reference. It is dated in 1923 and contains these words: 'Whereas, an Order of the Secretary of the Interior has been deposited in the General Land Office, directing that a fee simple patent issue to the claimant Daniel W. Coffey, assignee of Thomas A. Coffey, Senior, purchaser of land included in the allotment of Black Tract, * * *.'

The central contention of the applicant is that because the crime was committed within the boundaries of the Pine Ridge Reservation, it was committed within Indian country. He concludes, therefore, that jurisdiction was in the trial court of that reservation.

In making this contention , we do not understand the applicant to question the settled doctrine that the state has jurisdiction to prosecute Indians for such a crime as is here involved when committed outside Indian country. That power stems from the admission of our state to the Union upon an equal footing with the original states. Cf. Sec. 8, Ch. 180, Act of February 22, 1889, 25 Stat. page 676 at 679. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244; 42 C.J.S. Indians Sec. 79(2), p. 798; and 27 Am.Jur., Indians, Sec. .52, p. 575. It was in recognition of this power of the state that we upheld the jurisdiction of our courts to prosecute one of the ten major crimes committed by an Indian at a place held to be outside of a reservation in Ex parte Moore, 28 S.D. 339, 133 N.W. 817; Stat v. Sauter, 48 S.D. 409, 205 N.W. 25; and Application of DeMarrias, S.D., 91 N.W.2d 480.

The Coop Station in Martin, South Dakota, is located within the original exterior boundaries of the Pine Ridge Indian Reservation as marked out by the Act of April 30, 1888, Ch. 206, 25 Stat. 94. In the exercise of its plenary power over the Indian tribes (Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299; Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; and Sioux Tribe of Indians v. United States, Ct.Cl., 146 F.Supp. 229) the Congress on May 27, 1910, enacted Ch. 257 of 36 Stat. 440, the pertinent language whereof reads as follows: 'That the Secretary of the Interior be, and he is hereby, authorized and directed, as hereinafter provided, to sell and dispose of all that portion of the Pine Ridge Indian Reservation, in the State of South Dakota, lying and being in Bennett County * * * (legal description) * * * except such portions thereof as have been or may be hereafter allotted to Indians or otherwise reserved, and except lands classified as timber lands; Provided, That any Indians to whom allotments have been made on the tract to be ceded may, in case they elect to do so before said lands are offered for sale, relinquish same and select allotments in lieu thereof on the diminished reservation: * * *.' (Emphasis supplied.)

The exterior boundaries of the portion of the reservation described in the foregoing enactment embraced that property on which the above mentioned Coop Station, the locus of the offense, is located.

The intention of Congress as revealed by the Act of May 27, 1910, supra, is determinative of the contention of the applicant that his offense was committed within the reservation and in Indian country. Solution of our problem must be reached in the light of two authoritative decisions.

In United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 398, 58 L.Ed. 676, in considering the contention of an Indian defendant that the federal district court was without jurisdiction because of the locus of his offense was not within Indian country, the court was required to consider a similar congressional act. Cf. Act of July 1, 1892, Ch. 140, 27 Stat. 62. The Act restored a portion of the Colville Reservation in Washington to the public domain, but such restoration was expressly made 'subject to the reservations and allotment of lands in severalty to the individual members of the Indians of the Colville Reservation,' and the crime was committed on the allotment of one Agnes located within the exterior boundaries of the portion of the reservation opened to settlement. At the time of the offense the allotment was held in trust by the United States for the benefit of Agnes. In holding the allotment to constitute Indian country the court first wrote, 'The evident purpose of Congress was to carve out of the portion of the reservation restored to the public domain the lands to be allotted and reserved, as stated, and to make the restoration effective only as to the residue.' and further on this statement appears: 'In the present case, the original reservation was Indian country simply because it had been validly set apart for the use of the Indians as such, under the superintendence of the government. * * * The same considerations, in substance, apply to the allotted lands which, when the reservation was diminished, were excepted from the portion restored to the public domain. The allottees were permitted to enjoy a more secure tenure, and provision was made for their ultimate ownership without restrictions. But, meanwhile, the lands remained Indian lands, set apart for...

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19 cases
  • US ex rel. Cook v. Parkinson, CIV. 74-4023.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • April 21, 1975
    ...its written opinion in this case the South Dakota Supreme Court reaffirmed its earlier rulings in State of South Dakota ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959), and State of South Dakota ex rel. Swift v. Erickson, 82 S.D. 60, 141 N.W.2d 1 (1966), that the Act ......
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re, s. 85-203
    • United States
    • United States State Supreme Court of Wyoming
    • February 24, 1988
    ...P.2d at 337, quoting United States v. La Plant, supra, 200 F. at 94. This court also quoted favorably from State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959), which had construed an act "parallel" to the Act of March 3, 1905, relying on United States v. Pelican, 23......
  • In re Rights to Use Water in Big Horn River, No. 85-203 to 85-205
    • United States
    • United States State Supreme Court of Wyoming
    • February 24, 1988
    ...P.2d at 337, quoting United States v. La Plant, supra, 200 F. at 94. This court also quoted favorably from State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959), which had construed an act "parallel" to the Act of March 3, 1905, relying on United States v. Pelican, 23......
  • Beardslee v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 21, 1967
    ...Sauter, 48 S.D. 409, 205 N.W. 25, 28 (1925); Application of De Marrias, 77 S.D. 294, 91 N.W.2d 480 (1958); State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959); 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 4......
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