United States v. Erickson

Decision Date25 April 1973
Docket NumberNo. 72-1529.,72-1529.
Citation478 F.2d 684
PartiesUNITED STATES of America ex rel. Tilden Louis CONDON, Appellee, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas R. Vickerman, Asst. Atty. Gen., Pierre, S. D., and Andrew Aberle, Timber Lake, S. D., for appellant.

Richard A. Smith, Rosebud, S. D., for amicus.

John Simko, Sioux Falls, S. D., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 29, 1973.

STEPHENSON, Circuit Judge.

This appeal presents the question of whether Eagle Butte, South Dakota is located within the boundaries of the Cheyenne River Indian Reservation. If it is, then South Dakota had no jurisdiction to charge and convict appellee Condon, an enrolled member of the Cheyenne Indian Tribe, for the rape of a 70 year old librarian at Eagle Butte. Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) and City of New Town, North Dakota v. United States, 454 F.2d 121 (CA8 1972).

18 U.S.C. § 1153 provides, among other offenses, that an Indian who commits rape against another Indian or other person within the "Indian Country" shall be subject to punishment within the exclusive jurisdiction of the United States. Indian Country, defined in 18 U.S.C. § 1151, means " . . . all land within the limits of any Indian reservation under the jurisdiction of the United States government . . . " 1 The boundaries of the Cheyenne River Indian Reservation were originally established by the Act of March 2, 1889, 25 Stat. 888. It has been held, however, that the portion of the reservation opened up to settlement (of which Eagle Butte is a part) by the Act of May 29, 1908, 35 Stat. 460 was severed from the reservation by the 1908 Act and no longer "Indian Country." United States v. LaPlant, 200 F. 92 (D.S.D.1911) and Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171 (1963). See also, State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965). Compare, State v. Molash, 199 N.W.2d 591 (S.D.1972).

The rape was committed on November 2, 1964. Condon thereafter was arrested on federal charges and held in federal custody until April 16, 1965, when South Dakota arrested him on charges of first degree rape. Condon pleaded guilty in state court and received a fifteen-year sentence. Post-conviction efforts in state courts failed. State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970). Condon then petitioned the United States District Court for the District of South Dakota claiming that (1) he had been denied effective assistance of counsel and (2) the state was without jurisdiction to try him since the crime was committed on "Indian country," where federal jurisdiction is exclusive. We agreed with the trial court's denial of relief on the first issue but remanded with directions to hold an evidentiary hearing on the jurisdictional question. United States ex rel. Condon v. Erickson, 459 F.2d 663 (CA8 1972).

On remand, Judge Nichol granted Condon's petition for writ of habeas corpus holding that although it appeared that Congress diminished the boundaries of the Cheyenne River Reservation by implication in the Act of May 29, 1908, 35 Stat. 460 (thereby excluding Eagle Butte from the reservation), decisions by the Supreme Court and this Court commanded a contrary result. United States ex rel. Condon v. Erickson, 344 F.Supp. 777 (D.S.D.1972).

On appeal, the State and the United States by amicus curiae urge that the 1908 Act changed the boundaries of the reservation so as to exclude from the reservation the portion in which Eagle Butte is located.


"Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored." F. Cohen, Handbook of Federal Indian Law, XIII (Introduction by N. Margold) (1942). Prior to 1850 the Mississippi River was considered to be the general dividing line between "civilization" and the "Indian Country." See, Act of June 30, 1834, 4 Stat. 729. The Sioux, who were driven west of the Mississippi by the Chippewa in the early 18th century, roamed the Missouri Valley freely. They followed the buffalo herds which provided them food, shelter and clothing. At this time their lands were definitely unwanted and considered worthless by their neighbors to the east. Soon, however, farming settlers began crossing the Mississippi pushing westward and others carved out great trails through Sioux lands heading for the Oregon's Willamette valley and western gold fields. The Sioux and their buffalo herds were then threatened by the invaders and constant conflict followed. Finally, in the Treaty of April 29, 1868 at Fort Laramie, the Sioux agreed to a territory encompassing approximately the western one-half of present-day South Dakota, bordered on the east by the Missouri River and portions of present-day Nebraska on the south. This area was known as the Great Reservation of the Sioux Nation.

The demand for Indian lands grew with immigrant settlers flooding in by the thousands. The buffalo became nearly extinct by 1885 and the Sioux had to adjust to a life on the reservation which consisted almost entirely of residing adjacent to government agencies and eating government furnished food. An alliance arose between easterners sympathetic to the Indians and western politicians. From this alliance came an Indian policy by which the Indians allegedly were to become "civilized" in part by receiving allotments or parcels of land and agriculture tools to enable them to create a subsistence of their own.2

After the Indians commenced farming on their allotments, a large portion of their reservation was no longer necessary for their purposes and became "surplus." In the Act of March 2, 1889, 25 Stat. 888, the Great Sioux Reservation was divided into seven separate reservations, one of which is the Cheyenne River Indian Reservation.3 The new reservations were to be "permanent" and the lands outside the new boundaries were expressly restored to the public domain. 25 Stat. 888, 896, (§ 21) and Act of April 30, 1888, 25 Stat. 94 (§ 21). As of 1904 the Indian population on the Cheyenne River Reservation was 2,557,4 and by 1908 the reservation encompassed 2,867,840 acres of which 320.631 had been allotted to 934 Indians, leaving unallotted and theoretically "surplus" some two and one-half million acres. F. Webb, Handbook of American Indians North of Mexico, H.R.Doc.No. 926, Part 2, 59th Cong., 1st Sess. 386 (1910).

By the Act of May 29, 1908, 35 Stat. 460, Congress opened to settlement the surplus or unallotted lands in the Cheyenne River and Standing Rock reservations. 80,142 persons registered to homestead. South Dakota Legislative Manual, 131 (1911). The area opened includes the site where Eagle Butte is now located.

THE 1908 ACT

We cannot say that the 1908 Act on its face affected the exterior boundaries of the reservation, although it is admittedly a close question. The Act authorized the Secretary of the Interior "to sell and dispose of all that portion of the Cheyenne River and Standing Rock Indian reservations . . . being within the following described boundaries, . . . except such portions thereof as have been allotted to Indians: . . . ." The lands were to be disposed of by presidential proclamation under the prevailing federal homestead and town-site laws.5 In nearly all respects, the language of the 1908 Act is identical to other contemporaneous acts held not to have changed the boundaries of the respective reservations involved. See, Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) and City of New Town, North Dakota v. United States, 454 F.2d 121 (CA8 1972).

Appellee thinks it significant that the 1908 Act provided for the proceeds from the sale of the lands to be deposited into the Treasury of the United States and credited to the Indians as was the case in the 1906 (Seymour) and 1910 (New Town) acts. This method contrasts with prior acts wherein payment for the lands was made directly to the Indians. It has been aptly pointed out, however, that this was simply a new method utilized by a Congress that no longer favored purchasing Indian lands and providing them free of cost to settlers. "New Town et al: the Future of an Illusion," 18 South Dakota L.Rev. 85, 94-98 (1973).6

Appellant relies primarily on two provisions found within the 1908 Act which are not present in either the 1906 or 1910 Acts. In § 2 of the 1908 Act it is stated as a proviso that the Secretary may permit Indians who have received allotments in the area opened to settlement to relinquish such and receive a new allotment "within the respective reservations thus diminished. . . . ." (emphasis added). This proviso is subject to two competing constructions. The reservation thus diminished, as contended by appellant, means a smaller reservation with adjusted boundaries. On the other hand, the reservation could have retained its original exterior boundaries even though the portion held by Indians was diminished by virtue of the sale of lands within the boundaries to outsiders. Indeed, this would be consistent with 18 U.S.C. § 1151 defining Indian country as lands within the limits of a reservation notwithstanding the issuance of any patent.

More persuasive from appellant's standpoint is the final sentence of the act, the second proviso of § 9. This section provides that Indians residing upon allotments in a northern strip of townships may use the timber thereon for domestic purposes "only as long as the lands remain part of the public domain." (emphasis added.) Since the townships are located within the area opened to settlement, appellant asserts that this proviso is declaratory of Congress' intent that the entire area be restored to the public domain and therefore it is no longer within the 1889 boundaries of the reservation. App...

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