Wood v. Jameson

• Decision Date: 26 August 1964
• Docket Number: No. 10104,10104
• Citation: 81 S.D. 12,130 N.W.2d 95
• Court: South Dakota Supreme Court
• Parties: Vincent L. WOOD, Appellant, v. G. Norton JAMESON, Warden of South Dakota State Penitentiary, Respondent.

Page 95

130 N.W.2d 95

81 S.D. 12

Vincent L. WOOD, Appellant, v. G. Norton JAMESON, Warden of South Dakota State

Penitentiary, Respondent.

No. 10104.

Supreme Court of South Dakota.

Aug. 26, 1964.

James R. Adams, Sioux, Falls, for appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.

ROBERTS, Judge.

Appellant Vincent L. Wood commenced this proceeding by filing an application for writ of habeas corpus in the Circuit Court of Minnehaha County asserting that he is being unlawfully restrained of his liberty by the Warden of the South Dakota State Penitentiary by virtue of a judgment and sentence for a term of twenty years imposed upon him by the Circuit Court of Charles Mix County on December 13, 1955, for the crime of rape in the first degree. Appellant is an Indian and is an enrolled member of the Yankton tribe of Sioux Indians. The alleged crime was committed in a building on lots within the City of Lake Andes which were within the original exterior boundaries of the Yankton Indian reservation. An abstract of title offered in evidence by appellant and received without objection shows a patent dated May 8, 1916, describing the land which included the lots here in question and reciting that an order of the Secretary of Interior had been deposited in the General Land Office directing that a 'fee simple patent' issue to the grantee, a Yankton Sioux Indian, and a warranty deed dated June 4, 1917, to a townsite company which had the land included as an addition to the townsite of Lake Andes. The controverted issue was whether the offense was committed in Indian country and thus within the exclusive jurisdiction of the federal courts. Judgment was entered denying a writ and applicant has appealed.

The federal courts have exclusive jurisdiction over certain enumerated crimes, including rape, committed by Indians in Indian country. 18 U.S.C.A. Sec. 1153 (known as the 'Ten Major Crimes Act'). 'Indian country' is defined by the provisions of 18 U.S.C.A. Sec. 1151 as follows: 'Except as otherwise provided in sections 1154 and 1156 (not here pertinent) of this title, the term 'Indian country', as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation * * *.'

On April 19, 1958, a treaty was made and concluded by Charles E. Mix, U. S. Commissioner of Indian Affairs, and chiefs and delegates of the Yankton tribe of Sioux Indians. It was agreed that four hundred thousand acres 'situated and described as follows, to wit--Beginning at the mouth of the Naw-izi-wa-koo-pah or Chouteau River and extending up the Missouri River thirty miles; thence due north to a point; thence easterly to a point on the said Chouteau River; thence down said driver to the place of beginning, so as to include the said quantity of four hundred thousand acres' be reserved for the use and occupancy of said Indians. 11 Stat. 743. Allotments in severalty were subsequently made to members of the tribe pursuant to Acts of Congress of February 8, 1887 (24 Stat. 388) and of February 28, 1891 (26 Stat. 794), the same being in small tracts scattered throughout the area. Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691. The area thus reserved for the tribe was a legally constituted Indian reservation. In United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195, the court said: 'when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.' We then proceed to a consideration of the effect of a subsequent treaty and federal legislation providing for the opening of the reservation to settlement. By a treaty ratified and confirmed by Act of Congress of August 15, 1894 (28 Stat. 286), the Yankton tribe for an agreed consideration did 'cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said Indians as aforesaid.' In Article VIII of the treaty it was stipulated: 'Such part of the surplus lands hereby ceded and sold to the United States, as may now be occupied by the United States for agency, schools, and other purposes, shall be reserved from sale to settlers until they are no longer required for such purposes. But all other lands included in this sale shall, immediately after the ratification of this agreement by Congress, be offered for sale through the proper land office, to be disposed of under the existing land laws of the United States, to actual and bona fide settlers only.' In the ratifying act it was provided 'That the lands by said agreement ceded, to the United States shall, upon proclamation by the President, be opened to settlement, and shall be subject to disposal only under the homestead and town-site laws of the United States, excepting the sixteenth and thirty-sixth sections in each Congressional township, which shall be reserved for common-school purposes and be subject to the laws of the State of South Dakota'. The ceded lands, excepting small tracts reserved for an Indian agency, Indian school and the like were on May 21, 1895, by presidential proclamation opened to settlement under the homestead and townsite laws. 29 Stat. 865. The tract upon which the offense here involved was committed was a part of the land relinquished and conveyed and opened for settlement and as to which a patent was issued.

The court in United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676, 677, had under consideration an act (27 Stat. 62) providing for the opening of a part of the Colville Indian Reservation in the State of Washington to settlement. The Act provided that excepting certain tracts that had been allotted to Indians the portion of the reservation described therein was 'vacated and restored to the public domain' and opened to settlement and entry under the general laws applicable to the disposition of public lands. The court in construing the Act said: 'The exceptions were made by Congress in order to care for the Indians residing on that portion of the reservation. * * * The titles to the lands selected were to 'be held in trust for the benefit of the allottees, respectively, and afterwards conveyed in fee simple to the allottees or their heirs,' as provided in the acts of February 8, 1887 [c. 119], (24 Stat. at L. 338, Chap. 119), and February 28, 1891 [c. 38] (26 Stat. at L. 794, Chap. 383). * * * The evident purpose of Congress was to carve out of the portion of the reservation restored to the public domain the lands to be allotted and reserved, as stated, and to make the restoration effective only as to the residue. * * * Accordingly the President issued his proclamation on April 10, 1900, declaring that the restored portion of the reservation would be open to settlement and entry on October 10, 1900, and an appropriate clause was inserted which saved and excepted such tracts as had been or might be 'allotted to or reserved or selected for the Indians, or other purposes,' under the governing ...