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John Bartlett v. Herman S

John BARTLETT, Appellee, v. Herman S. SOLEM, Warden, South Dakota State Penitentiary; And Mark v. Meierhenry, Attorney General, State of South Dakota, Appellants

Bartlett v. Herman S, 691 F.2d 420 (8th Cir. 1982)
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Subsequent history: aff'd sub nom. Solem v. Bartlett, 465 U.S. 463 (1984). (read from the later opinion; check before relying)

Court
Court of Appeals for the Eighth Circuit · U.S. Courts of Appeals
Decided
October 27, 1982
Docket
No. 82-1582
Judges
Lay, Heaney, Bright, Ross, McMillian, Arnold, Gibson
Citations
691 F.2d 4201982 U.S. App. LEXIS 24525

Opinion of the Court — Heaney

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 . See 612 F.2d at 323 .

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

The appellants argue that United States ex rel. Condon v. Erickson, supra, was decided before DeCoteau v. District County Court, 420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 (1975), and Rosebud 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 in Condon was not complete. DeCoteau and Rosebud were thoroughly analyzed by this Court in United States v. Dupris, supra, and United States v. Long Elk, supra. We conclude that the views expressed by this Court in Condon, Long Elk and Dupris are consistent with the opinions of the Supreme Court in DeCoteau and Rosebud.

Dissent — McMILLIAN

McMILLIAN, Circuit Judge,

dissenting, with whom ARNOLD, Circuit Judge, joins.

I must respectfully dissent. For the reasons discussed in my dissenting opinion in United 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 in United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977), and United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973), requires modification in light of Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 , 97 S.Ct. 1361 , 51 L.Ed.2d 660 (1977), and DeCoteau v. District County Court, 420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 (1974).

Combined text as published — syllabus, headnotes and all opinions in one document

691 F.2d 420

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 Sept. 15, 1982. Decided Oct. 27, 1982.

1

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.

2

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.

3

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

4

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

5

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

6

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

7

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

8

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 . See 612 F.2d at 323 .

9

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

10

The appellants argue that United States ex rel. Condon v. Erickson, supra, was decided before DeCoteau v. District County Court, 420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 (1975), and Rosebud 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 in Condon was not complete. DeCoteau and Rosebud were thoroughly analyzed by this Court in United States v. Dupris, supra, and United States v. Long Elk, supra. We conclude that the views expressed by this Court in Condon, Long Elk and Dupris are consistent with the opinions of the Supreme Court in DeCoteau and Rosebud.

11

McMILLIAN, Circuit Judge, dissenting, with whom ARNOLD, Circuit Judge, joins.

12

I must respectfully dissent. For the reasons discussed in my dissenting opinion in United 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 in United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977), and United States ex rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973), requires modification in light of Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 , 97 S.Ct. 1361 , 51 L.Ed.2d 660 (1977), and DeCoteau v. District County Court, 420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 (1974).

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1984: 11986: 11988: 11990: 11993: 11996: 11997: 12004: 119842026peak 1984 · 1

Relies on it most ⓘ

  1. United States v. John David Bartlett794 F.2d 1285 (8th Cir. 1986)
  2. Yankton Sioux Tribe, a Federally Recognized Tribe of Indians, and Its Individual Members Darrell E. Drapeau, Individually, a Member of the Yankton Sioux Tribe v. Southern Missouri Waste Management District, a Non-Profit Corporation -Third Party v. State of South Dakota, Third Party Charles Mix County, South Dakota Flandreau Santee Sioux Tribe, Inc. United States of America Amicus Curiae. Vine Deloria, Jr. Philip S. Deloria Philip Lane, Sr. Philip Lane, Jr. James Weddell, Descendants of Francois Deloria, Signatory to the Treaty of 1858, and Descendants and Relatives of Philip J. Deloria, Chief of Band Eight of the Yankton Sioux Tribe, at the Time of the Negotiation and Ratification of the Agreement of December 31, 1892, Amici Curiae99 F.3d 1439 (3d Cir. 1997)
  3. Solem v. Bartlett465 U.S. 463 (1984)
  4. United States v. John David Bartlett856 F.2d 1071 (8th Cir. 1988)
  5. United States v. David James Baker894 F.2d 1144 (10th Cir. 1990)
  6. Yankton Sioux Tribe v. Southern Missouri Waste Management District99 F.3d 1439 (8th Cir. 1996)

Most recent

  1. United States v. Peltier344 F. Supp. 2d 539 (E.D. Mich. 2004)
  2. Yankton Sioux Tribe, a Federally Recognized Tribe of Indians, and Its Individual Members Darrell E. Drapeau, Individually, a Member of the Yankton Sioux Tribe v. Southern Missouri Waste Management District, a Non-Profit Corporation -Third Party v. State of South Dakota, Third Party Charles Mix County, South Dakota Flandreau Santee Sioux Tribe, Inc. United States of America Amicus Curiae. Vine Deloria, Jr. Philip S. Deloria Philip Lane, Sr. Philip Lane, Jr. James Weddell, Descendants of Francois Deloria, Signatory to the Treaty of 1858, and Descendants and Relatives of Philip J. Deloria, Chief of Band Eight of the Yankton Sioux Tribe, at the Time of the Negotiation and Ratification of the Agreement of December 31, 1892, Amici Curiae99 F.3d 1439 (3d Cir. 1997)
  3. Yankton Sioux Tribe v. Southern Missouri Waste Management District99 F.3d 1439 (8th Cir. 1996)
  4. United States v. Neil D. Standish3 F.3d 1207 (8th Cir. 1993)
  5. United States v. David James Baker894 F.2d 1144 (10th Cir. 1990)
  6. United States v. John David Bartlett856 F.2d 1071 (8th Cir. 1988)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
DeCoteau v. Dist. Cnty. Court for the Tenth Judicial Dist., 420 U.S. 425 (1975) 324
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) 190
United States v. Dupris, 612 F.2d 319 (8th Cir. 1979) 12
United States ex rel. Tilden Louis Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973) 44
United States v. Elk, 565 F.2d 1032 (8th Cir. 1977) 25

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