State v. Barnes, No. 10215

CourtSupreme Court of South Dakota
Writing for the CourtHOMEYER
Citation137 N.W.2d 683,81 S.D. 511
Docket NumberNo. 10215
Decision Date03 November 1965
PartiesSTATE of South Dakota, Plaintiff and Appellant, v. Robert BARNES, Defendant and Respondent.

Page 683

137 N.W.2d 683
81 S.D. 511
STATE of South Dakota, Plaintiff and Appellant,
v.
Robert BARNES, Defendant and Respondent.
No. 10215.
Supreme Court of South Dakota.
Nov. 3, 1965.

Page 684

[81 S.D. 513] Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, Andrew Aberle, State's Atty., Dewey County, for plaintiff and appellant.

Ramon A. Roubideaux, Ft. Pierre, South Dakota, for defendant and respondent.

HOMEYER, Judge.

Defendant-respondent, Robert Barnes, a non-Indian, was charged with the murder of Jerald A. Longbrake, a Cheyenne River Sioux Indian, by an information filed in the Circuit Court of Dewey County, South Dakota. His motion to dismiss for lack of jurisdiction was granted and the state appeals.

The alleged crime occurred on a county road between the NE1/4-33 and the NW1/4-34-13-22, E.B.H.M. in Dewey County, South Dakota. The parties stipulated that John King obtained a patent in fee to the NE1/4-33 on September 20, 1916; that Gust A. Speker obtained a patent in fee to the NW1/4-34 on October 10, 1917; that since said dates the described tracts have been under continuous non-Indian ownership and possess an unrestricted nontrust status. The locus of the alleged offense is within an area which Congress opened for sale and disposition under the homestead and townsite laws of the United States pursuant to presidential proclamation. Act of May 29, 1908, Ch. 218, 35 Stat. 460, Proclamation of the President, August 19, 1909, 36 Stat. 2500.

[81 S.D. 514] Respondent contended in the court below and again on this appeal that the locus of the alleged crime was in Indian country as defined in 18 U.S.C.A. Sec. 1151, consequently within the sole and exclusive jurisdiction of the United States, 18 U.S.C.A. Sec. 1152, and that he was not subject to prosecution in the state courts. Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962; Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E 710; United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676; United States v. Ramsey, 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039; State v. Kuntz, N.D., 66 N.W.2d 531; 27 Am.Jur., Indians, Sec. 51; Federal Indian Law, U.S.Dept. of Interior, 1958, pages 323, 324. We have consistently held that crimes committed by Indians against Indians or non-Indians and crimes committed by non-Indians against Indians on nontrust land in the opened portion of Indian reservations are within the jurisdiction of our state courts. Application of DeMarrias, 77 S.D. 294, 91 N.W.2d 480; State v. De Marrias, 79 S.D. 1, 107 N.W.2d 255, Cert. den. 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42; State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181; Application of Lafferty, 80 S.D. 411, 125 N.W.2d 171; State 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 Secretary of Interior

Page 685

on January 21, 1952 1, 'restored' the locus of the alleged offense to the Indian country and hence to the sole and exclusive jurisdiction of the United States. We do not agree. The Secretary's Order provides:

'Whereas, under authority contained in the act of Congress approved May 29, 1908 (35 Stat. 460), providing for the disposition of surplus unallotted lands in the Cheyenne River Reservation, South Dakota, certain surplus lands were opened to settlement and entry under the general provisions of the homestead and townsite laws of the United States, by Presidential Proclamation of August 19, 1909 (36 Stat. 2500), and

[81 S.D. 515] 'Whereas, there are now remaining undisposed-of on the opened portion of the Cheyenne River Reservation a number of tracts of said surplus lands which, while of little value for the original purpose of settlement and entry, upon thorough investigation, have been found to be valuable to the Indians of said reservation in order properly to support and develop their rapidly expanding cattle industry, and

'Whereas, by relinquishment and cancellation of homestead entries an additional area of similar lands may hereafter be added to the class of undisposed-of surplus lands, and

'Whereas, the Superintendent of the Cheyenne River Reservation, the Area Director and the Commissioner of Indian Affairs have recommended restoration to tribal ownership of all the undisposed-of surplus lands and interests in lands within the following described areas: (then appears a general description of approximately 39,000 acres including all of sections 33 and 34-13-22, E.B.H.M. where the alleged murder took place)

'Now therefore, by virtue of the authority vested in the Secretary of the Interior by sections 3 and 7 of the act of June 18, 1934 (48 Stat. 984), I hereby find that...

To continue reading

Request your trial
13 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
    ...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 ex rel. Swift v. Erickson, S.D., 141 N.W.2d 1 4. Other courts almost uniformly have upheld federal jurisdictio......
  • State v. Janis, No. 13237
    • United States
    • Supreme Court of South Dakota
    • March 10, 1982
    ...matter jurisdiction over the diminished area. 1 In arriving at that decision we relied on our previous opinions in State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965) and Lafferty v. State for Jameson, 80 S.D. 411, 125 N.W.2d 171 (1963). We have found no case law that overrules Stankey or t......
  • Solem v. Bartlett, No. 82-1253
    • United States
    • United States Supreme Court
    • February 22, 1984
    ...the state courts came to assume that the opened areas fell within their general criminal jurisdiction. See, e.g., State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965). It was only in 1973 that the Eighth Circuit challenged this assumption in United States ex rel. Condon v. Erickson, supra. 2......
  • Stankey v. Waddell, No. 11610
    • United States
    • South Dakota Supreme Court
    • June 22, 1977
    ...Sauter, 1925, 48 S.D. 409, 205 N.W. 25. See also: Lafferty v. State for Jameson, 1963, 80 S.D. 411, 125 N.W.2d 171; State v. Barnes, 1965, 81 S.D. 511, 137 N.W.2d 683. However, in United States ex rel. Condon v. Erickson, 1972, D.C.S.D., 344 F.Supp. 777, the federal court abandoned its earl......
  • Request a trial to view additional results
13 cases
  • Beardslee v. United States, No. 18565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 21, 1967
    ...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 ex rel. Swift v. Erickson, S.D., 141 N.W.2d 1 4. Other courts almost uniformly have upheld federal jurisdictio......
  • State v. Janis, No. 13237
    • United States
    • Supreme Court of South Dakota
    • March 10, 1982
    ...matter jurisdiction over the diminished area. 1 In arriving at that decision we relied on our previous opinions in State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965) and Lafferty v. State for Jameson, 80 S.D. 411, 125 N.W.2d 171 (1963). We have found no case law that overrules Stankey or t......
  • Solem v. Bartlett, No. 82-1253
    • United States
    • United States Supreme Court
    • February 22, 1984
    ...the state courts came to assume that the opened areas fell within their general criminal jurisdiction. See, e.g., State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965). It was only in 1973 that the Eighth Circuit challenged this assumption in United States ex rel. Condon v. Erickson, supra. 2......
  • Stankey v. Waddell, No. 11610
    • United States
    • South Dakota Supreme Court
    • June 22, 1977
    ...Sauter, 1925, 48 S.D. 409, 205 N.W. 25. See also: Lafferty v. State for Jameson, 1963, 80 S.D. 411, 125 N.W.2d 171; State v. Barnes, 1965, 81 S.D. 511, 137 N.W.2d 683. However, in United States ex rel. Condon v. Erickson, 1972, D.C.S.D., 344 F.Supp. 777, the federal court abandoned its earl......
  • 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