State v. White Horse, 11319

CourtSupreme Court of South Dakota
Citation89 S.D. 196,231 N.W.2d 847
Docket NumberNo. 11319,11319
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Austin Elmer WHITE HORSE, Defendant and Appellant.
Decision Date01 August 1975

Kermit A. Sande, Atty. Gen., Pierre, for plaintiff and respondent.

Mark V. Meierhenry, Rosebud, for defendant and appellant.

DOYLE, Justice.

The defendant was charged with a sixth offense of the crime of driving while under the influence of alcoholic liquor in violation of SDC 1960 Supp. 44.9922, now partly codified in SDCL 32--23--1 through 32--23--5. Defendant petitioned the Circuit Court of Tripp County for a writ of habeas corpus, contending his imprisonment to be illegal in that he is an enrolled member of the Rosebud Sioux Tribe and the offense of which he is charged was committed within 'Indian Country' and, thus, the State of South Dakota has no jurisdiction over the defendant for the state offense as charged.

The writ of habeas corpus was denied by the circuit court, which held that the State of South Dakota has jurisdiction over Indian persons who violate state laws in Tripp County. From this decision the defendant appeals.

This case raises the single question of whether that portion of the Rosebud Indian Reservation situated in Tripp County was terminated and disestablished from the reservation by the Act of March 2, 1907, 34 Stat. 1230, Ch. 2536 (Act of 1907).

The parties agree that the State of South Dakota would not have jurisdiction over the defendant for the offense charged if these lands are 'Indian Country' as defined in 18 U.S.C.A. § 1151, and this question depends upon whether the lands retained reservation status after the passage of the Act of 1907.

The same question was presented to the United States District Court in Rosebud Sioux Tribe v. Kneip, 1974, D.C.S.D., 375 F.Supp. 1065, wherein the Rosebud Tribe brought a declaratory judgment action seeking declaration that three acts of Congress did not diminish the Rosebud Reservation. We are concerned in this case with one of these three congressional acts, namely, the Act of 1907, which deals with Tripp County where the offense in this case took place. The United States District Court held that the Act of 1907 did disestablish that portion of the Rosebud Reservation containing Tripp County. On appeal to the United States Court of Appeals for the Eighth Circuit, the decision was affirmed, 521 F.2d 87 (1975).

Each case must be considered on the basis of the individual treaty or act of Congress relating to that particular reservation and all circumstances pertaining thereto.

The most recent guidelines regarding interpretation of acts of Congress concerning Indian Reservation lands were stated in DeCoteau v. District County Court for Tenth Jud. Dist., 1975, --- U.S. ---, ---, 95 S.Ct. 1082, 1092 93, 43 L.Ed.2d 300 wherein it said:

'This Court does not lightly conclude that an Indian reservation has been terminated. ' (W)hen Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.' United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195. The congressional intent must be clear, to overcome 'the general rule that '(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith. '' McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, at 174, 93 S.Ct. 1257 at 1263, 36 L.Ed.2d 129, quoting Carpenter v. Shaw, 280 U.S. 363, at 367, 50 S.Ct. 121 at 122, 74 L.Ed. 478. Accordingly, the Court requires that the 'congressional determination to terminate . . . be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.' Mattz v. Arnett, 412 U.S. (481), at 505, 93 S.Ct. (2245), at 2258 (37 L.Ed.2d 92). See also Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346, and United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192. In particular, we have stressed that reservation status may survive the mere opening of a reservation to settlement, even when the moneys paid for the land by the settlors are placed in trust by the Government for the Indians' benefit. Mattz v. Arnett, supra, and Seymour v. Superintendent, supra.'

In accordance with these guidelines, we have reviewed all of the material presented concerning the Act of 1907, the documents of the time, the legislative history and the surrounding circumstances in order to determine the intent of Congress in passing the Act of 1907.

In Rosebud Sioux Tribe v. Kneip, supra, after considerable discussion about the Act of 1904 (Gregory County), the Eighth Circuit Court of Appeals stated:

'These materials concerning the description of the tract affected by the 1907 Act not only provide a contemporaneous and authoritative construction of the 1904 Act which supports our interpretation thereof, but also directly indicate, in light of the continuity discussed above, that the 1907 Act was similarly intended to further constrict the boundaries of the Rosebud Reservation.

'This intent was given firm expression by Congressman Burke during the House debate, whose remarks are unambiguous:

They will have left, after this land is disposed of, a reservation that is substantially fifty miles square * * *. 85

'The allotment provisions of the 1907 Act are asserted by the Tribe to support its position against disestablishment. The 1907 Act, provided, with respect to allotments, as follows:

That prior to the said proclamation the Secretary of the Interior, in his discretion, may permit Indians who have an allotment within the Rosebud Reservation to relinquish such allotment and to receive in lieu thereof an allotment anywhere within said reservation * * *.

1907 Act § 2, 34 Stat. 1230.

'The Tribe argues that the provision respecting allotments 'anywhere within said reservation,' which then included Tripp County, clearly negates a congressional intent 'to dissolve the reservation status of the Tripp County portion of the reservation' since, it argues, had dissolution been intended, Congress 'hardly would have provided for 160 acre allotments anywhere on the reservation, including Tripp County.'

'The argument stems from a misinterpretation of the legislative history. Inspector McLaughlin's letter of instructions from the Commissioner of Indian Affairs stated that:

The Office is in receipt of a communication of November 22 from Hon. Charles H. Burke, wherein he says that he recently visited the Rosebud Reservation for the purpose of gaining information with a view to preparing a bill for the sale of that part of the reservation located in Tripp County; that he found that a large number of Indians had taken allotments in the western and southwestern parts of the reserve, on lands which are now, and always will be, worthless, being nothing but sandhills; that the Indians who have allotments in the reservation elsewhere than in Tripp County should be permitted, in the discretion of the Secretary of the Interior, to relinquish them and to take allotments in lieu thereof in some other part of the reservation, including Tripp County * * *. 86

'The Inspector, in negotiating with the Indians, accordingly informed them of their rights to reallotment anywhere on the reservation, 87 and the specific mention of Tripp County in this connection was to remedy, 'before the opening of Tripp County,' the prior taking of poor land. There is no negation here of congressional intent to disestablish. The entire tenor of the negotiations and the contemporary documents are consistent with a congressional intent to extinguish the reservation status of the County rather than the contrary.

'After careful review we conclude that the language, legislative history and circumstances surrounding the passage...

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5 cases
  • Rosebud Sioux Tribe v. State of SD, Civ. No. 86-3019.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 31, 1989
    ...during the late 1960s and the 1970s that it had no jurisdiction over actions on Indian lands. See, e.g., State v. White Horse, 89 S.D. 196, 197-98, 231 N.W.2d 847, 848 (1975) (state stipulates to no jurisdiction over an Indian drunk driver in Indian E. The Indian Civil Rights Act Meanwhile,......
  • Rosebud Sioux Tribe v. Kneip
    • United States
    • United States Supreme Court
    • April 4, 1977
    ...39, and at 611, 612, which reinforce the conclusion that Congress, in 1904, disestablished Gregory County. 26 See also State v. White Horse, 231 N.W.2d 847 (S.D.1975). This factor, of course, applies with equal force to the counties affected by the 1907 Act and by the 1910 Act, infra, at 27......
  • State v. Janis, 13237
    • United States
    • Supreme Court of South Dakota
    • March 10, 1982
    ...decision in State v. Molash, 86 S.D. 558, 199 N.W.2d 591 (1972), be the same if the case were presented today? See State v. White Horse, 89 S.D. 196, 231 N.W.2d 847 (1975). 1 "Termination," "diminishment" and "disestablishment" and their derivatives are used interchangeably.2 Decoteau was b......
  • Northwest South Dakota Production Credit Ass'n v. Dale, s. 14198
    • United States
    • Supreme Court of South Dakota
    • October 22, 1984
    ...... The state was directed to protect the receiver as an officer of the court in legal ......
  • Request a trial to view additional results

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