Opinion · Court of Appeals for the Eighth Circuit

John Bartlett v. Herman S. Solem, Warden, South Dakota State Penitentiary and Mark v. Meierhenry, Attorney General, State of South Dakota

John Bartlett v. Herman S. Solem, Warden, S.D. State Penitentiary & Mark v. Meierhenry, Att’y Gen., State of S.D., 691 F.2d 420 (8th Cir. 1982)

Type: Opinion
Court: Court of Appeals for the Eighth Circuit
Jurisdiction: Federal
Date: 1982-10-27
Topic: bankruptcy

HEANEY, Circuit Judge, with whom LAY, Chief Judge, and BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges, join. The United States District Court for the District of South Dakota granted John Bartlett’s petition for a writ of habeas corpus on the ground that the State of South Dakota lacked jurisdiction to try Bartlett because his crime was committed on land that was part of the Cheyenne River Reservation. In so holding, the court relied on this Court’s opinion in United States v. Dupris, 612 F.2d 319 (8th Cir. 1979), vacated and remanded, 446 U.S. 980, 100 S.Ct. 2959, 64 L.Ed.2d 836 (1980), in which we held that the Act of May 29, 1908, 35 Stat. 460, did not diminish the boundaries of the reservation established by the Act of March 2, 1889, 25 Stat. 888.

Citator

UpLaw has not yet analyzed John Bartlett v. Herman S. Solem, Warden, South Dakota State Penitentiary and Mark v. Meierhenry, Attorney General, State of South Dakota. The absence of a flag is not a finding that it is good law.

Authority status: pending
Cited by: 11 opinions

BARTLETT v. SOLEM,691 F.2d 420(8th Cir. 1982)

JOHN BARTLETT, APPELLEE, v. HERMAN S. SOLEM, WARDEN, SOUTH DAKOTA STATE

PENITENTIARY; AND MARK V. MEIERHENRY, ATTORNEY GENERAL, STATE OF SOUTH

DAKOTA, APPELLANTS.

No. 82-1582.

United States Court of Appeals, Eighth Circuit.

Submitted September 15, 1982.

Decided October 27, 1982.

Tom D. Tobin, Tobin Law Offices, P. C., Winner, S. D., William W. Shakely, Tobin Law Offices, P. C., Washington, D.C., for amici curiae Counties.

Anthony C. Liotta, Acting Asst. Atty. Gen., Edward J. Shawaker, Janet L. Steckel, Attys., Dept. of Justice, Washington, D.C., Mark V. Meierhenry, Atty. Gen., Mark Smith, Asst. Atty. Gen., Pierre, S.D., for appellants.

Richard B. Collins, Native American Rights Fund, Boulder, Colo., Robert C. Riter, Jr., Riter, Mayer, Hofer Riter, Pierre, S.D., for appellee.

W. Richard West, Jr., Washington, D.C., for amicus curiae Cheyenne River Sioux Tribe.

Reid Peyton Chambers, Washington, D.C., for amicus curiae Standing Rock Sioux Tribe.

Appeal from the United States District Court for the District of South Dakota.

Before LAY, Chief Judge, HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD and JOHN R. GIBSON, Circuit Judges, En banc.

HEANEY, Circuit Judge, with whom LAY, Chief Judge, and BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges, join.

[1] The United States District Court for the District of South Dakota granted John Bartlett's petition for a writ of habeas corpus on the ground that the State of South Dakota lacked jurisdiction to try Bartlett because his crime was committed on land that was part of the Cheyenne River Reservation. In so holding, the court relied on this Court's opinion inUnitedStates v. Dupris,612 F.2d 319(8th Cir. 1979),vacated andremanded,446 U.S. 980,100 S.Ct. 2959,64 L.Ed.2d 836(1980), in which we held that the Act of May 29, 1908,35 Stat. 460, did not diminish the boundaries of the reservation established by the Act of March 2, 1889,25 Stat. 888.See612 F.2d at 323.

[2] The State of South Dakota on appeal contends thatDuprisis wrongly decided and asks that the Court en banc reject thePage 421panel opinion in that case. We decline to do so and affirm the decision of the district court for the reasons set forth inUnited States v. Dupris, supra; United States v. Long Elk,565 F.2d 1032(8th Cir. 1977), andUnited States ex rel.Condon v. Erickson,478 F.2d 684(8th Cir. 1973).

[3] The appellants argue thatUnited States ex rel. Condon v.Erickson, supra,was decided beforeDeCoteau v. District CountyCourt,420 U.S. 425,95 S.Ct. 1082,43 L.Ed.2d 300(1975), andRosebud Sioux Tribe v. Kneip,430 U.S. 584,97 S.Ct. 1361,51 L.Ed.2d 660(1977), and the review of the 1908 act inCondonwas not complete.DeCoteauandRosebudwere thoroughly analyzed by this Court inUnited States v. Dupris, supra,andUnited States v. Long Elk, supra.We conclude that the views expressed by this Court inCondon, Long ElkandDuprisare consistent with the opinions of the Supreme Court inDeCoteauandRosebud.

[4] McMILLIAN, Circuit Judge, dissenting, with whom ARNOLD, Circuit Judge, joins.

[5] I must respectfully dissent. For the reasons discussed in my dissenting opinion inUnited States v. Dupris,612 F.2d 319,323(8th Cir. 1979),vacated and remanded,446 U.S. 980,100 S.Ct. 2959,64 L.Ed.2d 836(1980), I would hold that the 1908 statute diminished the boundaries of the Cheyenne River Reservation. I continue to believe that the analysis inUnitedStates v. Long Elk,565 F.2d 1032(8th Cir. 1977), andUnitedStates ex rel. Condon v. Erickson,478 F.2d 684(8th Cir. 1973), requires modification in light ofRosebud Sioux Tribe v. Kneip,430 U.S. 584,97 S.Ct. 1361,51 L.Ed.2d 660(1977), andDeCoteauv. District County Court,420 U.S. 425,95 S.Ct. 1082,43 L.Ed.2d 300(1974).