United States v. La Plant

Decision Date06 May 1911
Citation200 F. 92
CourtU.S. District Court — District of South Dakota

E. E Wagner, U.S. Atty., of Mitchell, S.D., for the United States.

H. G Fuller, of Milbank, S.D., and P. C. Morrison, of Mobridge S.D., for defendant.

WILLARD District Judge.

This case stands upon a demurrer to the indictment. The first ground stated in the demurrer is that the indictment does not state facts sufficient to constitute an offense. The second ground is that the court has no jurisdiction of the offense. Only the second ground will be considered.

The case was argued upon the assumption, by counsel, that the defendant, Orvilla La Plant, and the person killed, George Martin, were both white persons. Upon this assumption the jurisdiction of this court cannot be based upon Act March 3 1885, c. 341, 23 Statutes at Large, 362, 385, giving jurisdiction to the federal courts of crimes committed on Indian reservations in certain cases. Draper v. United States, 164 U.S. 240, 17 Sup.Ct. 107, 41 L.Ed. 419. Even without this assumption, the jurisdiction could not be maintained under that act; for the indictment does not allege that La Plant is an Indian, or that Martin is an Indian.

The jurisdiction must rest upon Act Feb. 2, 1903, c. 351, 32 Stat. 793, carried forward into the Criminal Code, where it appears as section 329. This section provides, in part, as follows:

'The Circuit and District Courts of the United States for the district of South Dakota shall have jurisdiction to hear and determine all actions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, or larceny committed within the limits of any Indian reservation within the state of South Dakota.'

It has been suggested that this act refers to reservations as they existed when the act was passed in 1903, and that, the place where the offense in this case was committed being within the Cheyenne River reservation as it then existed, the court has jurisdiction. That contention, however, cannot be sustained, in view of what was said by the Circuit Court of Appeals of this circuit with reference to this act in Hollister v. United States, 145 F. 773, 777, 76 C.C.A. 337, 341. It is there said:

'The act of February 2, 1903, ex vi termini became inoperative so far as any particular reservation was concerned upon the extinguishment of the Indian title. Bates v. Clark, 95 U.S. 204, 208 (24 L.Ed. 471); Buster v. Wright, 135 F. 947, 952 (68 C.C.A. 505.)'

The question, therefore, is whether or not on the 20th day of March, 1911, when this offense was committed, the place where it was committed was within an Indian reservation. That place, according to the indictment, was included in the land opened to settlement by Act May 29, 1908, c. 218, 35 Statutes at Large, 460. It is claimed by the United States Attorney that that act did not diminish the reservation, so as to exclude the land therein referred to. In section 2 of the act, however, is found the following proviso:

'Provided, that prior to the said proclamation the Secretary of the Interior, in his discretion, may permit Indians who have an allotment within the area described in section 1 of this act to relinquish such allotment and to receive in lieu thereof an allotment anywhere within the respective reservations thus diminished to which reservations the said Indians may belong.'

No other meaning can be given to the words italicized than that the reservations were diminished, and they were diminished by the act itself. The word 'thus' so indicates. It appears, therefore, that Congress intended to diminish the reservations at the time the act was passed, and necessarily thereby to extinguish the Indian title to the part excluded. It is claimed, however, by the District Attorney, that any such intention which might be gathered from the proviso, above quoted, is rebutted by section 9 of the act. That section declares that the United States does not guarantee to find a purchaser for the land, does not agree to buy the land, and acts only as trustee. But a trustee has not only the legal title, but he has also the right to possession, and the fact that the government is to act as trustee for the Indians does not indicate that their title has not been extinguished. There is nothing in section 9 providing that if the land is not sold it shall be turned back to the Indians. The government simply agrees to hold the money realized from the sale of the land, whenever it receives it, for the benefit of the Indians.

Referring again to the case of Hollister v. United States, the question is whether the Indian title to this land has been extinguished. To determine that it is important to know what the Indian title was. In Buttz v. Northern Pacific Railroad, 119 U.S. 55, at page 66, 7 Sup.Ct. 100, at page 104 (30 L.Ed....

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24 cases
  • Tooisgah v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 5, 1950
    ...government. disestablish the organized reservation, and assimilate the Indian tribes as citizens of the state or territory. United States v. LaPlant, D.C., 200 F. 92. The inquiry then is whether these several allotments, into which the reservation was divided, nevertheless remained "within ......
  • United States ex rel. Miner v. Erickson
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 5, 1970
    ...land to settlement indicates that the Cheyenne River Reservation was thus "diminished." This language was interpreted in United States v. La Plant, 200 F. 92 (D.C.1911), as extinguishing all Indian title to the land. The South Dakota Supreme Court has relied upon La Plant in a similar holdi......
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re, s. 85-203
    • United States
    • Wyoming Supreme Court
    • February 24, 1988
    ...Indian title had been extinguished as to the ceded portion of the Wind River Indian Reservation. The court quoted from United States v. La Plant, 200 F. 92 (D.C.S.D.1911), the part in which the federal court had addressed earlier the effect of a provision very similar to Art. 9 of the Act o......
  • In re Rights to Use Water in Big Horn River
    • United States
    • Wyoming Supreme Court
    • February 24, 1988
    ...Indian title had been extinguished as to the ceded portion of the Wind River Indian Reservation. The court quoted from United States v. La Plant, 200 F. 92 (D.C.S.D. 1911), the part in which the federal court had addressed earlier the effect of a provision very similar to Art. 9 of the Act ......
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