US ex rel. Cook v. Parkinson, CIV. 74-4023.

Decision Date21 April 1975
Docket NumberNo. CIV. 74-4023.,CIV. 74-4023.
Citation396 F. Supp. 473
PartiesU. S. ex rel. Donald M. COOK v. Gerald PARKINSON, etc.
CourtU.S. District Court — District of South Dakota

COPYRIGHT MATERIAL OMITTED

Terry L. Pechota, Mission, S. D., Art Bunce, Escondido, Cal., for petitioner.

Tom D. Tobin, Winner, S. D., Lawrence E. Long, Martin, S. D., William Janklow, Atty. Gen., of S. D., Pierre, S. D., for respondent.

MEMORANDUM OPINION

BOGUE, District Judge.

Petitioner Donald M. Cook has brought this action under 28 U.S.C. § 2241 et seq., the Federal Habeas Corpus Act, in an effort to secure his release from what he asserts is unlawful detention. The petitioner was convicted of the crime of third degree burglary which occurred in the city of Martin, County of Bennett, South Dakota. He was sentenced on June 4, 1971, in the Circuit Court of South Dakota, Sixth Judicial Circuit, and was incarcerated in the South Dakota Penitentiary on June 9, 1971. The petitioner asserts that his detention is unlawful upon the grounds that the state of South Dakota lacks jurisdiction to prosecute or imprison Indians for crimes committed by them within "Indian country" as defined by 18 U. S.C. § 1151(a).

Petitioner Cook is a three-eighths blood Indian and an enrolled member of the Concow and Redwood tribe of California Indians. His enrollment number is 6640 and his name appears on the Revised Roll of California Indians pursuant to the Act of May 24, 1950, 64 Stat. 189. It is not required that petitioner be a member of the Oglala Sioux Tribe, the tribe for whose benefit the Pine Ridge Reservation in South Dakota was created, in order to have standing to challenge state jurisdiction over crimes claimed to have been committed on that reservation. It is sufficient to establish this element of federal jurisdiction that petitioner has proven membership in any Indian tribe recognized by the United States. Cook v. South Dakota, 215 N.W.2d 832 (1974), United States v. Jewett, 438 F. 2d 495 (8th Cir. 1971), United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886).

In this case the South Dakota courts have asserted jurisdiction over an Indian for acts committed within Bennett County, South Dakota. Although Bennett County was within the boundaries of the Pine Ridge Indian Reservation as that reservation was defined by 25 Stat. 888, 1889, and therefore under the jurisdiction and control of the Oglala Sioux Tribe and the federal government from 1889 to 1910, the state of South Dakota has without challenge exerted jurisdiction and control over Bennett County for the past sixty-five years since the Act of May 27, 1910, was passed by Congress. In its written opinion in this case the South Dakota Supreme Court reaffirmed its earlier rulings in State of South Dakota ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959), and State of South Dakota ex rel. Swift v. Erickson, 82 S.D. 60, 141 N.W.2d 1 (1966), that the Act of May 27, 1910, "was motivated by a congressional purpose to reduce the area of Pine Ridge" and that the State of South Dakota has jurisdiction over Bennett County.

Since the petitioner is an Indian and since his crime was found to have been committed in Bennett County, the State of South Dakota possesses no jurisdiction if Bennett County is "Indian country" under 18 U.S.C. § 1151(a). If the tract of land is within a continuing "reservation", jurisdiction is in the tribe and the Federal Government "notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." 18 U.S.C. § 1151(a). On the other hand, if the land in question is not within a continuing reservation, jurisdiction is in the State, except for those land parcels which are "Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." 18 U.S.C. § 1151(c). Even within "Indian Country" a State may have jurisdiction over some persons or types of conduct, but this jurisdiction is limited. See, McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). Although 18 U.S.C. § 1151 applies on its face only to criminal jurisdiction, the United States Supreme Court has recognized that it generally applies as well to questions of civil jurisdiction. McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).

Thus, the single question is presented whether the Act of May 27, 1910, 36 Stat. 440, was intended by Congress to diminish the Pine Ridge Reservation as originally defined in the Act of March 2, 1889, 25 Stat. 888, by removing Bennett County therefrom. This Court holds, for the reasons that follow, that the 1910 Act diminished the boundaries of the Pine Ridge Reservation, and that consequently the South Dakota state courts have jurisdiction over conduct on non-Indian lands within the 1889 reservation borders.

PRELIMINARY STATEMENT

In 1851 the Treaty of Fort Laramie was negotiated between commissioners especially appointed and authorized by the President of the United States, and the chiefs of the Sioux, Cheyenne, Arapahoe, Crow, Assinaboine, Gros-Ventre, Mandan and Arrickara Nations. The resulting agreement was signed on September 17, 1851 and proclaimed by President Millard Fillmore at 11 Stat. 749. The Treaty of Fort Laramie assigned to the Sioux lands which are now southwestern South Dakota and northwestern Nebraska, and included what is now Bennett County, South Dakota. The rather tenuous reservation described in the Treaty of Fort Laramie was modified and enlarged in 1868 when the United States and the Great Sioux Nation agreed upon the establishment of the Great Sioux Indian Reservation. This treaty was signed by General W. T. Sherman on behalf of the United States on April 29, 1868, ratified by Congress on February 16, 1869, at 15 Stat. 635, and proclaimed by President Andrew Johnson on February 24, 1869. The reservation formed by the 1868 Treaty, encompassed all the present state of South Dakota west of the eastern bank of the Missouri River, including Bennett County.

The parties to this suit agree that the Great Sioux Reservation was diminished from its 1868 boundaries by an Act of Congress on March 2, 1889, chap. 405, 25 Stat. 888. This 1889 Act reduced the Sioux lands to about half their former extent and restored the ceded portion to the public domain. In that Act the Pine Ridge Reservation was established and contained about 2,765,000 acres in what are now the counties of Bennett, Washabaugh, and Shannon. The statutory description of the Pine Ridge Reservation was as follows:

Beginning at the intersection of the one hundred and third meridian of longitude with the northern boundary of the State of Nebraska; thence north along said meridian to the South Fork of Cheyenne River, and down said stream to the mouth of Battle Creek; thence due east to White River; thence down White River to the mouth of Black Pipe Creek on White River; thence due south to said north line of the State of Nebraska; thence west on said north line to the place of beginning.

Although the preamble of the 1889 Act stated that the reservation was to be "permanent", Section 12 of the Act provided the means by which the United States could buy and the members of the Oglala Sioux Tribe could "sell" such "portions" of the "reservation" as could be agreed upon from time to time subject to the ratification of Congress. The portion of the reservation "so sold or released" was to "be held by the United States for the sole purpose of securing homes to actual settlers." Act of March 2, 1889, supra, Sec. 12.

Pursuant to Section 12, the United States initiated three separate negotiations for "portions of the reservation" with the members of the Oglala Sioux Tribe. Only one of these negotiations resulted in an Act of Congress, the Act of May 27, 1910, 36 Stat. 440, encompassing what is now Bennett County, South Dakota. Shortly after the Act, the United States released the unallotted land in the area thus acquired to actual settlers. This tract of land now consists primarily of small farms and ranches and has a population of approximately four thousand residents.

It is now the duty of this Court to examine the Act of May 27, 1910, 36 Stat. 440, along with the legislative history and the circumstances which led to enactment of this legislation, and to determine whether or not Congress, in passing this act, intended to diminish the reservation by extinguishing the Indian country character of Bennett County, or merely open Bennett County to homesteading without changing the outer confines of the Pine Ridge Reservation thereby. Each treaty or act must be analyzed separately to determine congressional intent. United States v. Ash Sheep Company, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507 (1920); Kills Plenty, et al. v. United States, 133 F.2d 292, 295 (8th Cir. 1943). The issue has been extensively and excellently briefed by both parties. In general the issue presented here has been discussed at length in two law review articles. See, Comment, New Town, et al.: The Future of an Illusion, 18 S.D.Law Rev. 85 (1973); Smith, New Town, et al: A Reply, 18 S.D.Law Rev. 327 (1973).

The United States Supreme Court recently reaffirmed and clarified the guidelines to be applied in determining questions relating to Indian reservations. In DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (3-4-75), the Court stated:

This Court does not lightly conclude that an Indian reservation has been terminated. "When Congress has once established a reservation, all tracts included within it remain a part of the reservation until
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