United States ex rel. Condon v. Erickson, Civ. No. 71-17S.

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Writing for the CourtNICHOL
Citation344 F. Supp. 777
PartiesUNITED STATES of America ex rel. Tilden Louis CONDON, Plaintiff, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant.
Decision Date27 June 1972
Docket NumberCiv. No. 71-17S.

344 F. Supp. 777

UNITED STATES of America ex rel. Tilden Louis CONDON, Plaintiff,
v.
Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant.

Civ. No. 71-17S.

United States District Court, D. South Dakota, S. D.

June 27, 1972.


John E. Simko, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for plaintiff.

Walter W. Andre, Sp. Asst. Atty. Gen., Pierre, S. D., and Roger A. Schiager, Sp. Asst. Atty. Gen., Sioux Falls, S. D., for defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

On May 8, 1972, this Court held an evidentiary hearing to determine jurisdiction, pursuant to an order of the Eighth Circuit Court of Appeals in United States ex rel. Condon v. Erickson, 459 F.2d 663 (8th Cir. 1972). The sole question to be determined was whether the Act of Congress of May 29, 1908, 35 Stat. 460, providing for the sale of unalloted lands in the Cheyenne River Reservation, diminished the boundaries of the Cheyenne River Reservation.

Condon contends that his state conviction for the crime of rape committed in the public library at Eagle Butte, South Dakota, was void for want of jurisdiction. He is an enrolled, unemancipated member of the Cheyenne River Sioux Indian Tribe, and therefore a ward of the United States. Condon alleges that the

344 F. Supp. 778
crime to which he pleaded guilty was committed in "Indian country" as defined in 18 U.S.C.A. Sec. 1151 and that rape committed by an Indian within Indian country is an offense "within the exclusive jurisdiction of the United States" under 18 U.S.C.A. Sec. 1153. The place where the crime occurred is in that portion of the Cheyenne River Reservation which was opened to White settlement under the May 29, 1908 Act of Congress, 35 Stat. 460

The Cheyenne River Indian Reservation was created by Act of Congress on April 30, 1888, 25 Stat. 94, and the Act of March 2, 1889, 25 Stat. 888, by being set apart from the Great Reservation of the Sioux Nation as a "permanent reservation for the Indians." All those portions of the Great Sioux Reservation outside the reservations established (with minor exceptions not relevant here) by the Act were expressly restored to the public domain. 25 Stat. 94, Sec. 21, and 25 Stat. 888, Sec. 21. The town of Eagle Butte, South Dakota, was within the original confines of the Cheyenne River Reservation. Thus if state jurisdiction is to be found, it must be based on some congressional action subsequent to the 1888 and 1889 Acts.

The South Dakota courts found authority for the assertion of state jurisdiction in the Act of May 29, 1908, 35 Stat. 460, which provided for sale of that portion of the Cheyenne River Reservation specifically described in the Act, except those portions alloted to Indians, under the homestead and townsite laws of the United States. State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965); Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171 (1963).

The controlling case is Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). The Supreme Court there relied on two bases for its decision: (1) Whether or not the act expressly or by implication restores the land to the public domain; and (2) Whether subsequent congressional treatment of the reservation indicates it was restored to the public domain.

There is no express provision in the 1908 Act similar to that of the 1888 and 1889 Acts expressly restoring portions of the reservation to the public domain. However, Section 2 of the 1908 Act provided that prior to the proclamation of the President opening the described land to settlement the Secretary of the...

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10 practice notes
  • Ute Indian Tribe v. State of Utah, Civ. No. C 75-408.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • June 19, 1981
    ...F.2d 120 (8th Cir. 1975), cert. denied, 430 U.S. 982, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977); United States ex rel. Condon v. Erickson, 344 F.Supp. 777 (D.S.D.1972), affirmed, 478 F.2d 684 (8th Cir. 1973); New Town v. United States, 454 F.2d 121 (8th Cir. 1972); Ellis v. Page, 351 F.2d 250 (1......
  • State v. Perank, No. 860243
    • United States
    • Supreme Court of Utah
    • July 17, 1992
    ...F.Supp. 579, 581 (N.D.Cal.1976), rev'd on other grounds, Page 940 624 F.2d 914 (9th Cir.1980); United States ex rel. Condon v. Erickson, 344 F.Supp. 777, 778 (D.S.D.1972), aff'd, 478 F.2d 684 (8th Cir.1973); Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001, 1005 (D.Minn.1971)......
  • Stankey v. Waddell, No. 11610
    • United States
    • South Dakota Supreme Court
    • June 22, 1977
    ...N.W.2d 171; State v. Barnes, 1965, 81 S.D. 511, 137 N.W.2d 683. However, in United States ex rel. Condon v. Erickson, 1972, D.C.S.D., 344 F.Supp. 777, the federal court abandoned its earlier decision and ruled that absent an express provision in the Act which restored the lands to the publi......
  • Mattz v. Arnett 8212 1182, No. 71
    • United States
    • United States Supreme Court
    • June 11, 1973
    ...Stat. 460 (Cheyenne River and Standing Rock Reservations), and United States ex rel. Condon v. Erickson, 459 F.2d 663 (CA8 1973), aff'g 344 F.Supp. 777 (SD 1972). 20. The respondent argues, however, that Congress, perhaps unacquainted with the Executive Order of October 1891, intended this ......
  • Request a trial to view additional results
10 cases
  • Ute Indian Tribe v. State of Utah, Civ. No. C 75-408.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • June 19, 1981
    ...F.2d 120 (8th Cir. 1975), cert. denied, 430 U.S. 982, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977); United States ex rel. Condon v. Erickson, 344 F.Supp. 777 (D.S.D.1972), affirmed, 478 F.2d 684 (8th Cir. 1973); New Town v. United States, 454 F.2d 121 (8th Cir. 1972); Ellis v. Page, 351 F.2d 250 (1......
  • State v. Perank, No. 860243
    • United States
    • Supreme Court of Utah
    • July 17, 1992
    ...F.Supp. 579, 581 (N.D.Cal.1976), rev'd on other grounds, Page 940 624 F.2d 914 (9th Cir.1980); United States ex rel. Condon v. Erickson, 344 F.Supp. 777, 778 (D.S.D.1972), aff'd, 478 F.2d 684 (8th Cir.1973); Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001, 1005 (D.Minn.1971)......
  • Stankey v. Waddell, No. 11610
    • United States
    • South Dakota Supreme Court
    • June 22, 1977
    ...N.W.2d 171; State v. Barnes, 1965, 81 S.D. 511, 137 N.W.2d 683. However, in United States ex rel. Condon v. Erickson, 1972, D.C.S.D., 344 F.Supp. 777, the federal court abandoned its earlier decision and ruled that absent an express provision in the Act which restored the lands to the publi......
  • Mattz v. Arnett 8212 1182, No. 71
    • United States
    • United States Supreme Court
    • June 11, 1973
    ...Stat. 460 (Cheyenne River and Standing Rock Reservations), and United States ex rel. Condon v. Erickson, 459 F.2d 663 (CA8 1973), aff'g 344 F.Supp. 777 (SD 1972). 20. The respondent argues, however, that Congress, perhaps unacquainted with the Executive Order of October 1891, intended this ......
  • Request a trial to view additional results

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