U.S. v. Long Elk, s. 76-1385

Decision Date28 December 1977
Docket NumberNos. 76-1385,s. 76-1385
Citation565 F.2d 1032
PartiesUNITED STATES of America, Appellant, v. Chauncey Wesley LONG ELK, Jr., Ralph Emeron Taken Alive, Clarence Lorin Pay Pay, Donald Dean Martin, Adolph Hepper, and Daris Alfred Janis, Appellees. UNITED STATES of America, Appellee, v. Kermit Wesley BIRD HORSE, and Lynn Lawrence, Appellants. to 76-1391, 76-1344 and 76-1401.
CourtU.S. Court of Appeals — Eighth Circuit

F. J. Smith, Bismarck, N. D., argued and on brief and supplementary brief, for appellants.

Tom D. Tobin, Winner, S. D., argued for appellants; on brief for appellees in 76-1385 to 76-1391; and on supplemental brief for defendants in 76-1385-76-1391 and 76-1344.

Neil T. Proto, Atty., App. Section, Dept. of Justice, Washington, D. C., argued, for appellees.

Reid Peyton Chambers, Washington, D. C., argued for appellees; filed supplemental brief and additional supplemental brief, for amicus curiae, Standing Rock Sioux Tribe.

Steven E. Carroll, Atty., Dept. of Justice, Washington, D. C., William F. Clayton, U. S. Atty., and Robert D. Hiaring, Asst. U. S. Atty., Sioux Falls, S. D., Howard W. Paulsen, Legal Intern., on brief and reply brief, for appellants in 76-1385 to 76-1391.

Earl R. Mettler, Winner, S. D., on brief, for appellees in 76-1385 to 76-1391; and on supplemental brief for defendants in 76-1385 to 76-1391 and 76-1344.

Marvin J. Sonosky, Washington, D. C., on brief, for amicus curiae, Standing Rock Sioux Tribe.

Harry R. Sachse, Washington, D. C., on supplemental brief for amicus curiae, Standing Rock Sioux Tribe.

Sonosky, Chambers & Sachse, Washington, D. C., on additional supplemental brief of amicus curiae, Standing Rock Sioux Tribe.

Harold O. Bullis (former U. S. Atty.), and H. Gary Annear, Asst. U. S. Atty., Fargo, N. D., on brief, for appellee in 76-1344 and 76-1401.

Irvin B. Nodland, Bismarck, N. D., on brief, for appellant in 76-1401.

Before BRIGHT, ROSS and WEBSTER, Circuit Judges.

BRIGHT, Circuit Judge.

These appeals raise an important question of whether federal jurisdiction exists over criminal offenses committed within that portion of the Standing Rock Indian Reservation opened to settlement by a 1913 congressional enactment. The Government has charged the defendants in these cases with committing crimes in that territory. If the 1913 Act diminished the reservation, the charges must be dismissed, but if the Act did not diminish the reservation, the federal courts possess jurisdiction over the crimes allegedly committed by these defendants.

I. Background.

Two groups of cases are joined together in this appeal. The first group arises from indictments issued by a South Dakota federal grand jury against Chauncey Wesley Long Elk, Jr., an Indian, and four other Indians (Taken Alive, Pay Pay, Martin, and Janis) for various offenses committed within Indian country, in violation of 18 U.S.C. § 1153 (1970), and against Adolph Hepper, a white man, on charges on assaulting an Indian within Indian country, in violation of 18 U.S.C. § 1152 (1970). All of the alleged offenses occurred at McLaughlin, South Dakota. The United States District Court for the District of South Dakota granted the defendants' motion to dismiss the indictments for lack of jurisdiction, holding that the United States, by the Act of February 14, 1913, ch. 54, 37 Stat. 675 (1913), had disestablished that part of the Standing Rock Indian Reservation where the alleged crimes had taken place. 1 The United States appeals the dismissal of these six indictments.

The second group of cases arises from indictments in North Dakota against Kermit Wesley Bird Horse and Lynn Douglas Lawrence, both Indians, charging them, under 18 U.S.C. § 1153 (1970), with the burglary of Ed's Bar in Fort Yates, North Dakota. These criminal defendants challenged the court's jurisdiction claiming, as did the defendants in Long Elk, that the Act of 1913 had disestablished the part of the Standing Rock Reservation on which the alleged offenses were committed. The court rejected this argument. Thereafter, Bird Horse and Lawrence were convicted of the charges in separate jury trials. 2 On these consolidated appeals Bird Horse and Lawrence again contest federal jurisdiction and, in addition, contend that the trial judge committed other prejudicial errors in the conduct of the trials.

The present appeals came before us in September of 1976. We postponed consideration of the issues pending a decision by the United States Supreme Court in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977), aff'g, 521 F.2d 87 (8th Cir. 1975), which dealt with a similar question of disestablishment of an Indian reservation located in South Dakota. Following the Court's issuance of the Rosebud opinion, the parties, at our request, submitted supplemental briefs and presented additional oral argument at our August 1977 session, addressing the jurisdictional issue in light of principles enunciated in Rosebud.

For reasons stated below, we reverse the dismissal of the indictments against Long Elk and the other South Dakota defendants, and we affirm the convictions of Bird Horse and Lawrence. We hold that the Act of 1913 did not disestablish any part of the Standing Rock Indian Reservation.

II. Jurisdiction.

Jurisdiction over the offenses allegedly committed by these defendants rests with the federal courts only if the acts occurred within the boundaries of the Standing Rock Reservation. 3 All defendants argue that the Act of 1913 removed from the reservation the areas where the offenses occurred. 4 The Government, along with the Standing Rock Sioux Tribe as amicus curiae, contends that the Act of 1913 did not reduce the size of the reservation.

We begin our discussion with a brief summary of the history of the Act. 5 The Treaty of April 29, 1868, 15 Stat. 635 (1868), between the United States and the chiefs of the various tribes of the Sioux Nation created the Great Reservation of the Sioux Nation, in the Territory of Dakota. Congress later, by the Act of March 2, 1889, ch. 405, 25 Stat. 888 (1889), carved that reservation into six smaller reservations, including Standing Rock. 6 The 1889 Act authorized the President to make allotments of land within the reservations to individual Indians and to instruct the Secretary of Interior to negotiate with the tribes for the purchase of unallotted portions of the reservations, subject to congressional ratification.

The westward movement of civilization at the turn of the century generated forces that gradually eroded the reservation system. The Indians, no longer able to depend on the diminishing herds of buffalo for their livelihood, accepted allotments of land under the terms of the Act of 1889 and turned to farming. During the same period settlers, railroad companies, and other commercial interests were pressuring Congress to open unallotted Indian lands for settlement by non-Indians. The Secretary of the Interior at various times dispatched Indian inspectors to negotiate with the tribes for the sale of the tribes' surplus land. These negotiations, when successful, culminated in a series of "surplus land statutes" passed by Congress in the early part of this century. Two such surplus land statutes, the Act of May 29, 1908, 7 and the Act of 1913, applied directly to the Standing Rock Indian Reservation.

Some surplus land statutes have operated to disestablish or diminish the size of the reservations, 8 while others have left unaffected the reservation boundaries. 9 As the Supreme Court noted in Rosebud Sioux Tribe v. Kneip, supra, 97 S.Ct. at 1363:

The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status.

In United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973), we held that the 1908 Act, which opened the western half of the Standing Rock Reservation and a portion of the Cheyenne River Reservation for settlement, did not diminish the Cheyenne River Reservation. That decision, therefore, implies that the Act of 1908 also left untouched the boundaries of the western half of the Standing Rock Reservation. 10

The present appeals raise the issue of whether the Act of 1913, which opened the unallotted portions of the eastern half of the Standing Rock Reservation for settlement, diminished any portion of the reservation. The operative language of the Act reads:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 Standing Rock Indian Reservation, in the states of South Dakota and North Dakota, lying and being within the following-described boundaries * * *. (37 Stat. 675.)

President Wilson formally opened the area for entry and settlement by the following proclamation of March 18, 1915:

I, WOODROW WILSON, President of the United States of America, by virtue of the power and authority vested in me by the Act of Congress approved February 14, 1913 (37 Stat. 675), do hereby prescribe, proclaim and make known that all the nonmineral, unallotted and unreserved lands within the Standing Rock Indian Reservation, in the States of North and South Dakota, shall be disposed of under the general provisions of the homestead laws of the United States and the said Act of Congress, shall be opened to settlement and entry, and shall be settled upon, occupied and entered in the following manner, and not otherwise * * *. (39 Stat. 1721.)

In concluding that the eastern half of the Standing Rock Reservation had been disestablished by the Act of 1913, the district court in Long Elk wrote:

The legislative history and documentation of the 1913 Act make it clear that this Act was merely a continuation of a...

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