State v. Barnes, 10215

• Decision Date: 03 November 1965
• Docket Number: No. 10215,10215
• Citation: 137 N.W.2d 683,81 S.D. 511
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Robert BARNES, Defendant and Respondent.
• Court: South Dakota Supreme Court

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.

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.

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 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

'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 restoration to tribal ownership of all lands which are now, or may hereafter be, classified as undisposed-of surplus opened lands within the area above described, being within the boundaries of the former Cheyenne River Reservation, will be in public interest, and they are hereby restored to tribal ownership for the use and benefit of the Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota, and the same are added to and made a part of the existing Reservation, subject to any valid existing rights.'

The Act of June 18, 1934, referred to as authority in the above Order is commonly called the Wheeler-Howard Act or the Indian Reorganization Act of 1934. We will refer to it herein as the Indian Reorganization Act. ² Its comprehensive character and purpose appears from the title: 'AN ACT To conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organizations; to establish a credit system for Indians; to grant certain rights of home rule to Indians; to provide for vocational education for Indians; and for other purposes.' The first two sections prohibit further allotment of lands to Indians in severalty and extend existing periods of trust and restriction on alienation of Indian lands. Section 3 mentioned in the Order provides: 'The Secretary of Interior, * * * is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential Proclamation, or by any of the public land laws of the United States: * * *' (Emphasis supplied) It is clear the restoration authority granted to the Secretary was limited to a certain class of lands, i. e., 'remaining surplus land'. Lands which had been previously opened to settlement and sold, or otherwise disposed of, ³ did not fall within such classification. ⁴

Subsequent sections permit tribal acquisition of additional lands by purchase or exchange and provide funds therefor. Other sections are designed to provide educational advantages, job preferences, and in general to upgrade the economic lot of the Indian population.

Section 7 mentioned in the Secretary's Order above provides: 'The Secretary of the Interior is hereby authorized to proclaim new Indian reservations on lands acquired pursuant to any authority conferred by this Act, or to add such land to existing reservations. Provided, That lands added to existing reservations shall be designated for the exclusive use of Indians entitled by enrollment or by tribal membership to residence at such reservations.' ⁵ (Emphasis supplied)

The language employed is clear and precise and its meaning is plain. There is no room for judicial construction or interpretation. Kalmbach v. City of Mobridge, S.D., 132 N.W.2d 293. The only land which could be added to existing reservations was land which the Indian tribes acquired under the provisions of the act and its use was limited to Indians entitled to enrollment or tribal membership at such reservation.

No authority was conferred upon the Secretary to add the land where the alleged crime occurred--land which did not have any Indian connection by virtue of the Indian Reorganization Act--and make it a part of the reservation so as to confer jurisdiction upon the United States courts. We hold the locus was not...