United States v. Erickson, No. 72-1529.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtLAY, HEANEY and STEPHENSON, Circuit
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.
Decision Date25 April 1973
Docket NumberNo. 72-1529.

478 F.2d 684 (1973)

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

No. 72-1529.

United States Court of Appeals, Eighth Circuit.

Submitted January 11, 1973.

Decided April 25, 1973.

Rehearing and Rehearing Denied May 29, 1973.


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.

478 F.2d 685

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

478 F.2d 686
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.

BACKGROUND

"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.

478 F.2d 687
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...

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39 practice notes
  • U.S. v. Dupris, No. 78-1575
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 27, 1979
    ...the earlier opinions of this Court in United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977); United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973) (which involved the same portion of the Cheyenne River Indian Reservation as is here in question); and City of New Town, Nor......
  • U.S. v. Papakee, No. 06-CR-162-LRR.
    • United States
    • U.S. District Court — Northern District of Iowa
    • May 2, 2007
    ...law is ignored,'" Sac & Fox Tribe of the Miss. in Iowa v. Licklider, 576 F.2d 145, 147 (8th Cir.1978) (quoting United States v. Erickson, 478 F.2d 684, 686 (8th Cir.1973)), the court makes the following factual findings beyond a reasonable A. History of the Settlement to 1978 In Licklider, ......
  • Youngbear v. Brewer, No. C 75-62.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 25, 1976
    ...jurisdiction. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); United States v. Erickson, 478 F.2d 684, 689 (8th 415 F. Supp. 812 Cir. 1973); see also Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 Rigid application of the Indian-s......
  • St. Cloud v. US, No. 87-3023.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 1, 1988
    ...have no jurisdiction to prosecute him for the rape of the non-Indian counselor. See, e.g., United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir.1973). (South Dakota has no jurisdiction to convict Indian for rape of non-Indian committed in Indian Country). The federal courts have ......
  • Request a trial to view additional results
39 cases
  • U.S. v. Dupris, No. 78-1575
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 27, 1979
    ...the earlier opinions of this Court in United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977); United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973) (which involved the same portion of the Cheyenne River Indian Reservation as is here in question); and City of New Town, Nor......
  • U.S. v. Papakee, No. 06-CR-162-LRR.
    • United States
    • U.S. District Court — Northern District of Iowa
    • May 2, 2007
    ...law is ignored,'" Sac & Fox Tribe of the Miss. in Iowa v. Licklider, 576 F.2d 145, 147 (8th Cir.1978) (quoting United States v. Erickson, 478 F.2d 684, 686 (8th Cir.1973)), the court makes the following factual findings beyond a reasonable A. History of the Settlement to 1978 In Licklider, ......
  • Youngbear v. Brewer, No. C 75-62.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 25, 1976
    ...jurisdiction. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); United States v. Erickson, 478 F.2d 684, 689 (8th 415 F. Supp. 812 Cir. 1973); see also Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 Rigid application of the Indian-s......
  • St. Cloud v. US, No. 87-3023.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 1, 1988
    ...have no jurisdiction to prosecute him for the rape of the non-Indian counselor. See, e.g., United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir.1973). (South Dakota has no jurisdiction to convict Indian for rape of non-Indian committed in Indian Country). The federal courts have ......
  • Request a trial to view additional results

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