United States v. Long Elk, No. CR75-1008

CourtU.S. District Court — District of South Dakota
Writing for the CourtTom D. Tobin, Winner, S.D., Charles Rick Johnson, Gregory, S.D., for defendant Hepper
Citation410 F. Supp. 1174
PartiesUNITED STATES of America, Plaintiff, v. Chauncey Wesley LONG ELK, Jr., Defendant. UNITED STATES of America, Plaintiff, v. Ralph Emeron TAKEN ALIVE, Defendant. UNITED STATES of America, Plaintiff, v. Clarence Lorin PAY PAY, Defendant. UNITED STATES of America, Plaintiff, v. Donald Dean MARTIN, Defendant. UNITED STATES of America, Plaintiff, v. Adolph HEPPER, Defendant. UNITED STATES of America, Plaintiff, v. Daris Alfred JANIS, Defendant.
Decision Date08 April 1976
Docket NumberCR75-1028,CR75-1034 and CR75-1035.,CR75-1026,CR75-1024,No. CR75-1008,CR75-1027

410 F. Supp. 1174

UNITED STATES of America, Plaintiff,
v.
Chauncey Wesley LONG ELK, Jr., Defendant.

UNITED STATES of America, Plaintiff,
v.
Ralph Emeron TAKEN ALIVE, Defendant.

UNITED STATES of America, Plaintiff,
v.
Clarence Lorin PAY PAY, Defendant.

UNITED STATES of America, Plaintiff,
v.
Donald Dean MARTIN, Defendant.

UNITED STATES of America, Plaintiff,
v.
Adolph HEPPER, Defendant.

UNITED STATES of America, Plaintiff,
v.
Daris Alfred JANIS, Defendant.

Nos. CR75-1008, CR75-1024, CR75-1026, CR75-1027, CR75-1028, CR75-1034 and CR75-1035.

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

April 8, 1976.


410 F. Supp. 1175

William F. Clayton, U.S. Dist. Atty., D.S.D., and Robert D. Hiaring, Asst. U.S. Atty., Sioux Falls, S.D., for plaintiff.

Jerald M. McNeary, Aberdeen, S.D., for defendant Long Elk.

Donald L. Gellhaus, Aberdeen, S.D., for defendant Taken Alive.

John L. Maynes, Aberdeen, S.D., for defendant Pay Pay.

Arend E. Lakeman, Mobridge, S.D., for defendant Martin.

Tom D. Tobin, Winner, S.D., Charles Rick Johnson, Gregory, S.D., for defendant Hepper.

Kennith L. Gosch, Aberdeen, S.D., for defendant Janis.

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

MEMORANDUM DECISION

NICHOL, Chief Judge.

This memorandum addresses motions to dismiss for lack of jurisdiction filed by six named defendants charged by separate indictments.1 All parties agree that the sole issue raised by the motions to dismiss is whether the Act of February 14, 1913, c. 54, 37 Stat. 675, terminated and returned to the public domain all unallotted land embraced within the eastern portion of the Standing Rock Indian Reservation. If the Reservation was terminated, the plaintiff would be deprived of criminal jurisdiction exercised pursuant to 18 U.S.C. Section 1151(a) and other applicable statutes.2

The ultimate determination of the issue before this Court will have far-reaching impact and will not be limited to the confines of the criminal jurisdiction dispute. The Court is cognizant of the realities and has carefully considered the record and briefs submitted by counsel.3

PRELIMINARY STATEMENT

The Standing Rock Indian Reservation was created by the Act of March 2, 1889, c. 405, Section 3, 25 Stat. 888. The statutory description of the Standing Rock Reservation was as follows:

Beginning at a point in the center of the main channel of the Missouri River, opposite the mouth of Cannon Ball River; thence down said center of the main channel to a point ten miles north of the mouth of the Moreau River, including also within said reservation all island (sic), if any, in said river;
410 F. Supp. 1176
thence due west to the one hundred and second degree of west longitude from Greenwich; thence north along said meridian to its intersection with the South Branch of Cannon Ball River, also known as Cedar Creek; thence down said South Branch of Cannon Ball River to its intersection with the main Cannon Ball River, and down said main Cannon Ball River to the center of the main channel of the Missouri River at the place of beginning.

As originally constituted, the Reservation embraced all of Corson County in South Dakota and Sioux County in North Dakota.

Shortly after the turn of the century, there was increasing pressure to open for settlement large portions of Indian reservations in South Dakota and other states. In 1908 Congress passed a surplus land statute which opened for settlement the western half of the Standing Rock Reservation. Act of May 29, 1908, c. 218, 35 Stat. 460. This Act affected approximately one half of the original Reservation area.

The 1908 Act did not diminish the pressure for additional land. In 1909 a bill was introduced into Congress which would open for settlement the unallotted lands in the eastern or remaining portion of the Standing Rock Reservation unaffected by the 1908 Act. S. 3284, 61st Cong., 2d Sess. (1909). The Secretary of the Interior dispatched Inspector James McLaughlin to the Standing Rock Agency for the purpose of explaining the purpose of the Bill and to obtain an expression of the views of the Indians concerning the Bill. After receipt of the report of Inspector McLaughlin, the Secretary of the Interior recommended that various changes be made in the provisions of the Bill.4 The Bill was reported to the Senate on April 7, 1910, with recommendations that certain amendments be made thereto.5 An additional report was submitted by Senator Gamble on April 25, 1910.6 The Bill was passed in the Senate on June 16, 1910.7 S. 3284 was introduced into the House of Representatives on June 17, 1910, and was referred to the House Committee on Indian Affairs from which it was never reported out.8

The question was revived in the 62nd Congress on April 6, 1911, when S. 109, 62nd Cong., 1st Sess. (1911) was introduced by Senator Gamble. Inspector McLaughlin was directed to return to the Standing Rock Reservation and explain the provisions of S. 109. Inspector McLaughlin met with members of the Standing Rock Sioux Tribe on November 28, 1911. His report to the Secretary of the Interior dated December 16, 1911, indicated that many members of the Standing Rock Sioux Tribe were not in favor of the pending legislation.9 The report also contained several recommended amendments to S. 109. The Business Council of the Standing Rock Sioux Reservation formally opposed the Bill by resolution dated January 6, 1912.10

The Bill was reported to the full Senate on January 22, 1912. Floor debate began on January 29, 1912, and the Bill passed the Senate shortly thereafter.

410 F. Supp. 1177
On the House side, similar legislation had been introduced. Subsequent to the passage of S. 109 in the Senate, action was delayed on legislation which would open the remaining portion of the Standing Rock Reservation in the House of Representatives. The apparent reason was the strong opposition voiced by the Indians to the provisions contained in S. 109. The matter was referred to the Department of the Interior for further review and the Department reported on S. 109 on April 30, 1912.11 S. 109 was reported to the full House on May 1, 1912.12 Procedural rules precluded full consideration of the Bill since it was before the House on the Unanimous Consent Calendar and consideration met with opposition from some Congressmen.13

Congressman Burke re-introduced the Bill on January 6, 1913, by motion to suspend the rules. After a short debate, S. 109 was passed by the House of Representatives14 and the President signed the Bill on February 14, 1913. The Standing Rock Reservation was formally opened for settlement by Proclamation on March 18, 1915.15

1913 ACT

The Court is guided by principles recently expressed when considering whether an Indian Reservation has been terminated by Act of Congress. The focal point of judicial inquiry is the intent of Congress. DeCoteau v. District County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975); Rosebud Sioux Tribe v. Kneip, 521 F.2d 87, 89 (8th Cir. 1975). Reservation status may survive the mere opening of a reservation to settlement. The congressional determination to terminate must be expressed on the face of the act or be clear from the surrounding circumstances and legislative history. DeCoteau, supra, 420 U.S. at 444, 95 S.Ct. at 1093, 43 L.Ed.2d at 314.

It is clear from DeCoteau that our inquiry may encompass all materials reasonably pertinent to the legislation, including the debates thereon and official correspondence with respect thereto, and administrative treatment of the area; as well as those bearing upon the historical context of its passage, such as the social forces then at work in the area and particularly the demands of our westward moving society arrayed against the contesting demands of the Indians for their culture and support.

Rosebud, supra at 91. Legislation affecting other Indian Reservations and contemporary with the particular Act at issue may assist the Court in determining congressional intent. See United States ex rel. Cook v. Parkinson, 525 F.2d 120, 123 (8th Cir. 1975); Rosebud, supra at 104-105.

Before proceeding the Court notes that the Supreme Court of South Dakota has held that the 1913 Act did not terminate the eastern portion of the Standing Rock Reservation. State v. Molash, 86 S.D. 558, 199 N.W.2d 591 (1972). The reluctance of that Court in so holding is manifested by the recommendation of three of the Justices that the Attorney General of South Dakota file a petition for writ of certiorari with the United States Supreme Court. Molash, supra at 594. Subsequent to the Rosebud decision the Supreme Court of South Dakota addressed the Molash case in the following language:

* * * In State v. Molash, 86 S.D. 558, 199 N.W.2d 591, we found that
410 F. Supp. 1178
the Standing Rock Reservation was not disestablished by the Act of 1913 (37 Stat. 675). This Act is strikingly similar to the Act of 1907 herein involved in this case. * * * It should be noted that at the time this court decided State v. Molash, supra, we did not have the benefit of the comprehensive citations leading to an analysis of the "legislative history" and "surrounding circumstances" from which the intent of Congress could be established when it passed the Act dealing with the Standing Rock Reservation. * * *
* * * * * *
We also suggested in State v. Molash, supra, that certiorari be requested to determine the question therein presented.
Whether State v. Molash, supra, can withstand the scrutiny of the intent expressed by Congress at that time or the circumstances surrounding the enactment of the Act of 1913 remains for future decisions. * * *

State v. White Horse, S.D., 231 N.W.2d 847, 850-851 (1975). While this Court is not free to speculate as to the present opinion of the South Dakota Supreme Court concerning this subject, it is clear that the precedential value of the Molash opinion has been severely eroded.

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3 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
    ...v. Wounded Knee, 596 F.2d 790 (8th Cir. 1979) cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289; United States v. Long Elk, 410 F.Supp. 1174 (D.S.D.1976), reversed 565 F.2d 1032 (8th Cir. 1977); Beardslee v. United States, 541 F.2d 705 (8th Cir. 1976); United States ex rel. Cook v. ......
  • U.S. v. Long Elk, Nos. 76-1385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 28, 1977
    ...Fred J. Nichol, Chief Judge, United States District Court for the District of South Dakota, is reported as United States v. Long Elk, 410 F.Supp. 1174 2 These cases were tried before the Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota. 3 The......
  • Stankey v. Waddell, No. 11610
    • United States
    • South Dakota Supreme Court
    • June 22, 1977
    ...37 L.Ed.2d at 106; United States v. Southern Pacific Transp. Co., 1976, 9 Cir., 543 F.2d 676; United States v. Long Elk, 1976, D.C.S.D., 410 F.Supp. 1174. Legislative ambiguities are to be resolved in favor of the Indians. Cohen, Handbook of Federal Indian Law, 1942, 37; Bryan v. Itasca Cou......
3 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
    ...v. Wounded Knee, 596 F.2d 790 (8th Cir. 1979) cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289; United States v. Long Elk, 410 F.Supp. 1174 (D.S.D.1976), reversed 565 F.2d 1032 (8th Cir. 1977); Beardslee v. United States, 541 F.2d 705 (8th Cir. 1976); United States ex rel. Cook v. ......
  • U.S. v. Long Elk, Nos. 76-1385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 28, 1977
    ...Fred J. Nichol, Chief Judge, United States District Court for the District of South Dakota, is reported as United States v. Long Elk, 410 F.Supp. 1174 2 These cases were tried before the Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota. 3 The......
  • Stankey v. Waddell, No. 11610
    • United States
    • South Dakota Supreme Court
    • June 22, 1977
    ...37 L.Ed.2d at 106; United States v. Southern Pacific Transp. Co., 1976, 9 Cir., 543 F.2d 676; United States v. Long Elk, 1976, D.C.S.D., 410 F.Supp. 1174. Legislative ambiguities are to be resolved in favor of the Indians. Cohen, Handbook of Federal Indian Law, 1942, 37; Bryan v. Itasca Cou......

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