U.S. v. Wounded Knee

• Decision Date: 04 June 1979
• Docket Number: Nos. 78-1745,78-1749,s. 78-1745
• Citation: 596 F.2d 790
• Parties: UNITED STATES of America, Appellee, v. Spencer Daniel WOUNDED KNEE, Appellant. UNITED STATES of America, Appellee, v. Nathan Alan WITH HORN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 790

596 F.2d 790

UNITED STATES of America, Appellee, v. Spencer Daniel WOUNDED KNEE, Appellant.

UNITED STATES of America, Appellee, v. Nathan Alan WITH HORN, Appellant.

Nos. 78-1745, 78-1749.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1979.

Decided April 4, 1979.

Rehearing and Rehearing En Banc Denied May 1, 1979.

Certiorari Denied June 4, 1979.

See 99 S.Ct. 2847.

Robert C. Riter, Jr., Riter, Mayer, Hofer & Riter, Pierre, S. D., on brief for appellant, Wounded Knee.

Harold H. Deering, Jr., May, Adam, Gerdes & Thompson, Pierre, S. D., on brief for appellant, With Horn.

David V. Vrooman, Special Asst. U. S. Atty., Sioux Falls, S. D., for appellee; Robert D. Hiaring, U. S. Atty., and Gary G. Colbath, Asst. U. S. Atty., Sioux Falls, S. D., on briefs.

David L. Bergren, Fort Pierre, S. D., filed amicus brief for Crow Creek Sioux Tribe.

Before MATTHES, Senior Circuit Judge, HENLEY, Circuit Judge, and NANGLE, District Judge. ^*

MATTHES, Senior Circuit Judge.

Defendants Spencer Daniel Wounded Knee and Nathan Alan With Horn were jointly indicted, tried and found guilty of rape in violation of 18 U.S.C. §§ 1153 and 2031. ¹ The only contested issue at trial was whether the United States government was vested with jurisdiction. Defendants challenged jurisdiction by pre-trial motions to dismiss. After the motions were denied, the defendants waived their right to a jury trial and agreed to try the case to the district court ² on stipulated facts. On August 14, 1978, the United States Attorney detailed the evidence which was not controverted by either defendant. After ascertaining that the defendants understood their rights, the district court found each defendant guilty of one count of rape. ³ The defendants, represented by separate counsel appointed at trial, thereafter perfected timely appeals which were properly consolidated for oral argument and submission to this court. The Crow Creek Sioux Tribe filed a brief as amicus curiae urging this court to find that the reservation was not diminished and that the government had jurisdiction to prosecute the defendants. We affirm.

The sole issue raised on appeal is whether the district court erred in denying defendants' motions to dismiss the indictment for lack of subject matter jurisdiction. Before discussing this contention, however, we shall briefly summarize the undisputed facts.

Defendants, both Indians, met Lora J. Conetah at a bar in Fort Thompson, South Dakota, on the evening of September 7, 1977. Ms. Conetah, who was not married to either defendant, voluntarily accompanied them first to a house in the area and later to a small park located near the Big Bend Dam and Reservoir on the Missouri River. It is not necessary to review in detail the incidents which occurred after the parties arrived at this park except to say that a quarrel between defendants and Ms. Conetah escalated into a melee. Immediately thereafter Ms. Conetah was twice forcibly raped by each defendant. She reported these incidents shortly after they occurred. Subsequently, a four-count indictment was filed in the United States District Court for South Dakota. ⁴

Jurisdiction is premised on 18 U.S.C. § 1153 which provides in pertinent part, "Any Indian who commits against the person . . . of another Indian or other person . . . rape (and certain other crimes) . . . Within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States." (emphasis supplied.) Indian country as used in this section is defined by 18 U.S.C. § 1151 as

all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation . . . .

Defendants contend that the situs of the offenses was not within "Indian country" as required by § 1153 and defined in § 1151. Although the defendants concede that the location was once part of the Crow Creek Sioux Indian Reservation and, therefore, "Indian country," they submit that this land was removed from reservation status by the Act of October 3, 1962, P.L. 87-735, 76 Stat. 704, hereafter "the Act." Consequently, they argue that because the Crow Creek Sioux Reservation had been diminished by the taking of that part of the reservation where the offenses occurred for the construction of the Big Bend Dam and Reservoir project, subject matter jurisdiction over the offenses was vested in the State of South Dakota. Although it is undisputed that the park was within the land taken for the project and that title in the land was transferred from the Indians to the United States, the government contends that the Act did not diminish the reservation and that it was vested with jurisdiction to prosecute the defendants. ⁵ The government has conceded, however, that, if the reservation has been diminished so that the situs of the offenses is no longer a part of the reservation, the district court did not have subject matter jurisdiction.

Our analysis of the positions of the litigants leads us to conclude that the major source of controversy revolves around the omission of the two vitally important words "as diminished" from the Act involved in this prosecution (P.L. 87-735). Each of the acts authorizing the taking of Indian land for the construction of projects on the Missouri River antedating the Big Bend Dam and Reservoir project contained this crucial phrase "as diminished."

Section 11 of the Act of September 3, 1954, P.L. 83-776, 68 Stat. 1191, taking land from the Cheyenne River Reservation for the Oahe Dam and Reservation project provides in pertinent part:

The lands so selected and purchased as substitute allotments may be either within the boundaries of the Cheyenne River Reservation As diminished by this agreement or outside said reservation as may meet the desires of the individuals involved in the several transactions . . . . (emphasis supplied.)

Likewise, the equivalent section of the Act of September 2, 1958, P.L. 85-915, 72 Stat. 1762, affecting the Standing Rock Sioux Reservation and dealing with the Oahe Dam and Reservoir project provides in pertinent part:

Sec. 11. . . . The land selected by and purchased for individual Indians may be either inside or outside the boundaries of the Standing Rock Sioux Reservation As diminished. (emphasis supplied.)

Two acts approved September 2, 1958, P.L. 85-916, 72 Stat. 1766, and P.L. 85-923, 72 Stat. 1773, which took land from the Crow Creek Sioux Reservation and the Lower Brule Sioux Reservation respectively, for the Fort Randall Dam and Reservoir project contain identical language in § 6:

The land selected by and purchased for individual Indians may be either inside or outside the boundaries of the reservation As diminished. (emphasis supplied.)

Significantly, as we have stated, this same phrase is not found in the equivalent section of the Act of October 3, 1962, P.L. 87-735, 76 Stat. 704, which provides in pertinent part:

The land selected by and purchased for individual Indians may be either inside or outside the boundaries of the reservation. ⁶

The defendants propound the ingenious argument that because all of these acts, including the Act under scrutiny here (P.L. 87-735), were enacted as part of a comprehensive program of flood control on the Missouri River authorized by the Flood Control Act of December 22, 1944, ch. 204, 58 Stat. 887, Congress must have intended to treat the Indian tribes affected and the land taken by each act in the same manner. Therefore, they assert because Congress manifested an intent to diminish the reservations by the earlier acts, it must logically have also intended to diminish the Crow Creek Sioux Reservation by the Act involved here. Defendants would attribute the absence of the phrase "as diminished" in the Act to oversight or clerical error.

The government interprets this omission in a different fashion. It argues that because the absence of the phrase "as diminished" is the one major difference between the Act taking land in the Crow Creek Sioux Reservation for the Big Bend Dam and Reservoir project and the earlier acts, this omission must be the key to the meaning of the Act, I. e. the similarities of the acts in other respects emphasize this one major difference. If Congress used express language of diminishment in the other acts when it intended to diminish an Indian reservation, the government argues, the fact that it failed to include such express language in an Act (I. e. P.L. 87-735) patterned on these earlier acts must mean that Congress did not intend to diminish the reservation affected by that Act.

In determining whether the Act has effected a diminishment of the Crow Creek Sioux Reservation, we are guided by a number of well-established legal principles:

The underlying premise is that congressional intent will control. DeCoteau v. District County Court, supra, (420 U.S. 425 (1975)) at 444, 449 (95 S.Ct. 1082, 43 L.Ed.2d 300); United States v. Celestine, 215 U.S. 278, 285, (30 S.Ct. 93, 54 L.Ed. 195) (1909). In determining this intent, we are cautioned to follow "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, 174, (93 S.Ct. 1257, 36 L.Ed.2d 129) (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367, (50 S.Ct. 121, 74 L.Ed. 478) (1930); see also Mattz v. Arnett, supra, (412 U.S. 481 (1973)) at 505, (93 S.Ct. 2245, 37 L.Ed.2d 92). The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status. Mattz v. Arnett, supra ; see also Seymour v. Superintendent, 368 U.S. 351, (82 S.Ct. 424, 7 L.Ed.2d 346) (1962). But the "general rule"...