State v. De Marrias, 9867-
| Decision Date | 17 January 1961 |
| Docket Number | No. 9867-,9867- |
| Citation | 107 N.W.2d 255,79 S.D. 1 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. LaVern DE MARRIAS, Defendant and Appellant. a. |
| Court | South Dakota Supreme Court |
L. R. Gustafson, Britton, for defendant and appellant.
Frank L. Farrar, State's Atty. for Marshall County, Britton, Parnell J. Donohue, Atty. Gen., Charles Poches, Jr., Asst. Atty. Gen., for plaintiff and respondent.
Defendant LaVern DeMarrias, an enrolled Indian, was convicted of the crime of burglary, committed September 7, 1959 on non-Indian patented land within the original exterior boundaries of the Sisseton-Wahpeton (Lake Traverse) Indian Reservation. This is the same reservation, the same treaty, the same defendant and another crime of the same character, i. e., burglary, as were involved in Application of DeMarrias, 77 S.D. 294, 91 N.W.2d 480. This appeal poses the same question passed on by the court in defendant's prior conviction.
The briefs here and record in the trial court indicate uncertainty as to the effect of three recent opinions of the court, these being DeMarrias, supra, decided July 23, 1958, State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181, March 3, 1959, and Petition of High Pine, S.D., 99 N.W.2d 38, November 2, 1959. The thought is there expressed that DeMarrias and Hollow Horn Bear may be modified by High Pine; that the citation of Kills Plenty v. United States, 8 Cir., 133 F.2d 292 in High Pine and its omission from the two earlier opinions indicates that it was not cited or then considered.
The distinction in these cases is that the DeMarrias burglary was committed on non-Indian patented land which the court there described as the 'opened' part of the original reservation, not the 'closed' portion. In Hollow Horn Bear, Ch. 257 of 36 Stat. 440 authorized the sale of a portion of the Pine Ridge Indian Reservation in Bennett County and permitted Indians to select allotments in the 'diminished' reservation; the forgery was not committed on the diminished (or closed) reservation but on that part of the original reservation in Bennett County authorized to be, and which was, sold and conveyed by U. S. Patent to non-Indians, thus 'opened'. As Judge Smith noted it then 'ceased to be both a part of the reservation and within Indian county.' [77 S.D. 527, 95 N.W.2d 184] So in these two cases the court was dealing with crimes committed on lands inside the original, but at the time outside of the then reservation; not in the closed portion but in the open portion, as such descriptive terms were used. The court was construing the words 'Indian country' used in 18 U.S.C.A. Sec. 1152 as defined by Sec. 1151. While the briefs in DeMarrias cited Kills Plenty there was no occasion to refer to it in the court's opinion for in that case the Court of Appeals specifically said the jurisdiction of the trial court was 'based solely upon' Sec. 549 of Title 18 and not on Sec. 548, as they were then numbered. Section 549 was limited to 'any Indian reservation' in South Dakota only; it was later omitted from...
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Beardslee v. United States
...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 42; Lafferty v. State ex rel. Jameson, 80 S.D. 411, 125 N.W.2d 171 (1963)......
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Smith v. Temple, 10371
...ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181; In re High Pine's Petition, 78 S.D. 121, 99 N.W.2d 38; 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; Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171; In re Hankins' Petition......
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United States ex rel. Feather v. Erickson, 73-1453 to 73-1459 and 73-1541 to 73-1543.
...one of the specified crimes within 18 U.S.C. § 1153. 2 The case had a long prior history before reaching our court. State v. DeMarrias, 79 S.D. 1, 107 N.W.2d 255 (1961), cert. denied, 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42; DeMarrias v. State of South Dakota, 206 F. Supp. 549 (D.S.D.1962).......
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De Marrias v. State of South Dakota, Civ. No. 922 N.D.
...land, within the original exterior boundaries of the Lake Traverse Reservation. This state's Supreme Court on appeal, State v. De Marrias, S.D., 107 N.W.2d 255 (1961), affirmed the trial court as it held against the petitioner on the jurisdictional question with like result on a writ of cer......