*1 Dakota, STATE of South Plaintiff Appellee, CLOUD,
Richard Norman ST. Appellant.
Defendant and
No. 16966.
Supreme Court of South Dakota.
Argued Oct. 1990.
Decided Jan.
Rehearing Denied Feb.
villаge. stopped She the car at the fence compound. front of the pulled St. Cloud out a knife began and to make sexual ad- keys, got vances. He took her car out of opened gate. the car and He returned car, ordered her to drive into gate enclosure and closed the behind the Guhin, Gen., Deputy John P. Atty. car. He broke the chained door of a house Pierre, plaintiff appellee; Roger for and A. compound inside, and took her where Gen., Tellinghuisen, Atty. Pierre, on the raped he permitted her. Afterwards he brief. her to leave in her car alone. Andera, Steven K. Rabuck Rabuck & pled guilty in federal district Smith, Chamberlain, ap- for defendant and charge court to a of involuntary sodomy pеllant. Act, Major under the Crimes 18 U.S.C. (1988), 22-22-1(1) and SDCL and
§
SABERS, Justice.
22-22-2. He
twenty-five
was sentenced to
years imprisonment. Following sentenc-
St. Cloud was convicted in state court of
ing, he filed a motion to set aside under 28
rape
kidnapping.
and
appeals
He
his con-
(1988), arguing
U.S.C. 2255
lack of sub-
§
viction, claiming
jurisdiction, faulty
lack of
ject
he
because
claimed
jury instruction and insufficient evidence.
not to be an Indian for
of federal
We affirm.
jurisdiction.
The federal district
granted
his motion and released him
Facts
custody
of the South Dakota Attor-
St. Cloud is a resident of the Lower ney- General.
partici-
Brule Sioux Indian Reservation who
court,
pled
guilty
he
pated in the
pro-
tribe’s alcoholic treatment
charges
first-degree rape
under SDCL
16, 1986,
gram.
April
apрeared
On
he
in a
22-22-1(1)
under
22-
SDCL
disheveled state at
alcoholic
tribe’s
jury
19-1. A
him
found
on both
village
treatment center in Lower Brule
December, 1989,
counts in
and the court
and met with a counselor he knew there.
concurrently
twenty-five
sentenced him
counselor,
woman,
a non-Indian
of-
years imprisonment
rape
for
sixty
him
nearby
fered
a ride to his friend’s
years imprisonment
kidnapping.
house because she did not want him at the
appeal,
On
he
attacks
unkempt
center in his
condition.
arguing
of the state
now
that he home,
When St. Cloud’s friend was not at
meaning
an Indian within the
Major
suggested
that the counselor take him
Crimes Act and that
the federal court
Nation,” place
to “Iron
unfamiliar to her.
jurisdiction.1
therefore has exclusive
miles,
driving
After
five
she
about
became
also claims
error in a
instruction on
nervous,
get
him
told
she had to
back to
kidnapping, and
insufficient evidence to
placed
gear
work and
her hand on the
shift
sustain
kidnap-
his convictions on
placed
in order to turn around. St. Cloud
ping.
said,
top
his hand on
of hers and
“Just
1. Jurisdiction
keep driving.”
complied
She
until the car
Nation,
reached
Iron
abandoned church
We do not reach the
compound in an isolated area of the reser- whether St. Cloud is an Indian within the
Act,2
meaning
vation some ten miles west of Lower Brule
of the federal
Crimes
any federally recognized
nearly
1. St. Cloud had different counsel in federal and
tribe. He is
state court.
half Ponca and was an enrolled member of that
tribe,
government
but the fеderal
terminated its
Although
seventeen-year
St.
Cloud is
resi-
relationship
trust
with the Poncas in
Act
Reservation,
dent of the Lower Brule
and his
5, 1962,
87-629,
Sept.
Pub.L. No.
76 Stat. 429
wife and children are enrolled members of that
(codified
at 25 U.S.C.
971-80
§§
tribe, St. Cloud
an enrolled
is not
member of
apply
property
nor do we
est in certain
were said to “fall[]
district
category
the federal
court’s determination
within
playing
of conduct
fast
Nys
courts.” See also
that St. Cloud
an Indian
and loose
with
Roberts,
wanger
Cloud,
sense.3
Instead we hold
that St.
S.D.
N.W.
Reid,
Smith
having
(1940);
taken the
is not an
that he
*3
353,
P.J.,
Indian before the federal
court and
244
district
N.W.
356
(Campbell,
adopt
having persuaded that court
to
his
concurring).
recently,
More
this court held
position,
now judicially estopped
is
from
position
that
who has taken a
in a
“[o]ne
taking
contrary position
before this
proceeding may not
later
take a
court.
posi
inconsistent with his earlier
tion.” Federal Land Bank
v.
Omaha
Although
“judicial estop-
Johnson,
446,
(S.D. 1989).
446 N.W.2d
447
pel”
recognized by
has not been
name
that
Duerr,
Supply
Pliley,
See also Warren
v.
law,
long
in South Dakota case
been
it has
Dev.,
Thorsheim
838,
355
840
v. Bal
Behrens
cоncept.
in
1984).
denecker,
917,
77
(1956),
plaintiffs
919
“Many
long
inconsistent
as
federal courts
... have
em-
doctrine_”
Cin-
county
Patriot
sertions
in
court
ployed
court and circuit
emas,
Inc. General
Corp.,
v.
Cinema
about whether
the defendants
an inter-
had
834
Sioux,
nearly
Cloud is also
half
but
Yankton
leads to
anomalous
result that if St. Cloud
ethnically
was denied enrollment
in that
European
tribe
1983
were
half Sioux and half
his
because of
Ponca
Ponca,
affiliation.
instead
Sioux
of half
and half
he would
The conclusion of the
court in
be
an
federal district
"more of
Indian” for federal criminal
States,
F.Supp.
jurisdiction purposes
United
702
precisely
1456
is
—which
(D.S.D.1988), that St. Cloud is not
for
an Indian
holding of St. Cloud v. United States.
purposes
jurisdiction,
of federal criminal
is
questionable.
Cоmity
helpful
correctly
jurisdic-
a
decision
notes that
is not
doctrine when
federally recognized
"[Cjomity
in a
enrollment
tribe
issue.
... does not exist as
tion
prerequisite
Major
right,
merely
a
of Indian
practice
status under
but
a matter of
a
rule
Act, 18 U.S.C.
fully
§
Crimes
1153. The decision also
and convenience and is
in the discretion of
that,
disregarding
342,
finds
even
ethnic
St. Cloud’s
Daly,
court.” State v.
344
[this]
tribe,
identity
amply
the terminated
he
(S.D.1990).
Ponca
n. 2
Before we can exercise our
two-prong
meets the
test of substantial Indian
apply comity
discretion and
decision
quantum
recognition
blood
and non-racial
as an
the lower
we must
federal
find that
Rogers,
set forth in
Indian first
United States
"actually
jurisdiction over
federal court
had
567,
(4 How)
(1846).
45 U.S.
11 L.Ed.
For
subject
parties.”
both the
344;
mаtter and the
Id. at
these reasons
federal district court states
737,
Bear,
v. Circle
Mexican
normally
qualify
that “St. Cloud ...
as an
(S.D.1985).
exactly
point
But that is
subject
jurisdiction.”
Indian
to federal criminal
challenge.
my
Daly,
See
under
dissent in
Cloud,
F.Supp.
(emphasis
add-
St.
(Sabers, Justice, dissenting).
N.W.2d at 345
ed).
concluding
The court’s sole reason for
that
Therefore, invoking comity
permit this
does not
St. Cloud is not an Indian is his
enrollment
independent inquiry
an
court to avoid
into
tribe with which the
States
Ponca
United
case,
jurisdiction and,
federal court's
in this
—
relationship.
expressly terminated its trust
independent
inquiry
into
that would mean
Heath,
on
court relies
United States v.
509 F.2d
status,
our
St. Cloud’s Indian
were it not for
(9th Cir.1974),
which held that a member of
estopped
holding
judicially
that
Cloud is
committing
Klamath
a
the terminated
tribe
asserting
that he is an Indian.
federally recognized
was
crime on a
reservation
suggestion
Despite the
in Justice Henderson’s
The crit-
not
Crimes Act.
Daly by
writing,
denigrating
not
the rule in
am
Cloud,
ical distinction between Heath and St.
however,
questioning
comity
any application
has
whether
apparently
is that Heath
her
rested
contrary,
applying
in this
On the
I am
case.
sоlely
quantum
blood
on her
claim to Indian
comity
Daly
quotes
rule in
in full: that
which
contrast,
heritage.
found
Klamath
the court
may
only
be
if this court determines
extended
quantum
has
to
that St. Cloud
sufficient blood
foreign
"actually
had
apart
qualify
Indian
Ponca
status
from his
parties.”
over both the
matter and the
heritage.
reading
The better
of the Heath rule
elementary logic
subjeсt of the
It is
that if the
to
would seem be that termination of
tribe
juris-
foreign
diction,
might
decision concerns its own
any
court’s
bars
claim member
Indian
through
begs the
membership
it
to extend
status
terminated
finding
because a
tribal
decision
tribe. To read
termination as an absolute
that
member,
extending
any
prerequisite
is a
comi-
bar to the Indian status of
this court
tribal
circumstances,
ty-
fоr all
under
(1st Cir.1987).
an Indian under the exclusive
F.2d
See also Total
Davis,
822 F.2d
737 isdiction
the United States:
Petroleum Inc. v.
(8th Cir.1987).
n. 6
(1) “[Rjacial
question,
status is a factual
general proposi-
down as a
may
It
be laid
Clinton,
decided
the trier of fact.”
that,
party
assumes a cer-
tion
where
Over Indian
Criminal Jurisdiction
legal proceeding,
position in a
tain
Journey Through
A
Lands:
a Juris
maintaining
position, he
succeeds
Maze,
dictional
18 Ariz.L.Rev.
thereafter,
may
simply because his
(1976).
552 n. 249
also
See
West
changed, assume a con-
interests have
States, 155 U.S
moreland v. United
trary position....
.
(1895).
243,
plied
prerequisites
when four
puts
jurisdiction purposes,
nal
and hе
for-
(1)
party’s inter-proceeding inconsist-
A
argument against
no other
ward
fact,
a matter of
ency must be about
isdiction,
conclusion of
the trial court’s
law.
jurisdiction is
it had
party took in the
position
The
affirmed.
must have been a
prior proceeding
Kidnapping
Instructions
significant factor there.
provided
The trial court
absolutely
positions
two
must be
kidnap
several instructions about the
with
irreconcilable.
reads as follows:
ping charge, one of which
must not have
prior position
been
charged in
kidnapping
In the crime of
mistake,
of
inadvert-
taken as a result
Information,
necessary
it is not a
taking
upon
party
ence or fraud
person
that the
element of
offense
position.
the offense be
who is the
addition,
jurisdic-
most
Id. at 1262-65. In
carried, moved,
to move
or caused
require that the
applying
tions
the doctrine
point
from the
forcible
distance
prior proceeding
asserted
seizure,
taking
or
and un-
confinement
accepted by
court. Id.
must
been
restraint.
lawful
1246, 1255-58.
Record
Jury Instruction No.
Settled
in-
these factors to
Cloud’s
Applying
Indian sta-
consistent assertions about his
instruсtion is an accurate statement
conclusively that he is
This
tus demonstrates
statute,
kidnapping
Dakota’s
judicially estopped
claiming
to be
South
now
However,
kidnapping....
SDCL 22-19-1.4
St. Cloud ob-
cannot be
[I]t
instruction,
shown,
indicate,
jects
proposed
to this
nor does the evidence
rejected,
kidnapping
was
substitute which
trial court
incidental to an-
other crime.
bеcause he claims it does not reflect the
Reiman,
way in
which State v.
(citing
810-811
(S.D.1979)
kidnapping
modifies the
Autheman,
47 Idaho
[W]hen (defen- when, places “[J]ury adequate him vehicle to take as instructions are dant) whole, go, they give wishes to the defendant considered as a the full part: bodily injury To on or to terrorize 4. SDCL 22-19-1 reads inflict seizе, victim ... Any confine, person who shall invei- gle, decoy, carry away any person abduct or person any and hold or detain such ... for added). kidnapping. (Emphasis following reasons: felony ... To facilitate the commission of MORGAN, applicable Justice, law Retired and correct statement of the (citing participating. Mueller case.” Id. Mueller, HERTZ, Judge, Acting as Cirсuit Christensen, 77 Dwyer S.D. Justice, Supreme participating. Court N.W.2d 199 HENDERSON, (specially Justice concur- presented that the We hold evidence ring). no this case warrants instruction about the agree Although I to affirm this convic- jury- test. reasonable Reiman/Curtis No upon “judicial estop- tion and the basis of correctly could have con- applying that test disagree I pel,” with the rаtionale foot- kidnapping of cluded that St. Cloud’s majority opinion. three of the note rape. merely incidental to counselor was the trial court’s denial of St. We affirm appeal This can also be decided favor instruction. proposed kidnapping Cloud’s comity. on of the State Daly, Justice Sufficiency the Evidence opinion) (present authоr of this dis- Sabers acquittal on St. Cloud moved good I still recognize Daly sented. kidnapping and the count both the not eroded footnote three of this was insuf because he claimed the evidence opinion. support ap ficient to his conviction. recognized Daly, Court peals court’s denial of his motions for apply doctrine of can to a federal acquittal. Therefore, apply judgment. it can here it This believe that should. Court jury’s verdict We must sustain the precedent” certain “conditions evidence, and the inferences application of this doctrine *6 drawn, sup jury may a have evidence that following criteria: port theory guilt. rational State v. a of The as “conditions Court (S.D.1987). Ashker, precedent” аpplication to of doc- passing on the standard review Our following: trine of of the denial of a motion for propriety actually foreign jur- 1. The court had acquittal judgment of is whether over isdiction both the prima made facie case state has out parties; and the reasonably -which the could 2. The decree was not obtained fraud- Questions of guilty. find the defendant ulently; weight of the evi- credibility and of the by sys- The rendered 3. decree was jury. are for the dence reasonably assuring tem of Dirk, State v. requisites impartial of an administra- 1985). justice and a tion notice hear- —due merit in claim that We find no ing; and a ration- prima supporting facie case such judgment 4. The did not contravene theory guilt made. Like the al was not рublic jurisdiction policy Miller, appellant in unsuccessful upon. which it is relied (S.D.1988), conceptual Justice Sabers’ difference is evidence is most “simply recites whatever approxi- handed down to a case Court unfavorable to him and derides favorable ago. He now mately seven months em- evidence and inferences therefrom[.]” footnote, еffect, disregard to our ploys a Affirmed. opinion to elevate his dissent. recent footnote, Here, opinion, in said the author’s say, in the apparently is: We cannot case Justice, MORGAN, Retired concurs. us, actually foreign that “The before mat- MILLER, C.J., jurisdiction had over both WUEST i.e., HENDERSON, JJ., parties, one above.” specially. ter and the criteria concur conclusion, disagree. hisWith Carver, Russell CARVER and Norma First, the federal court’s decision on mat- Appellants, Plaintiffs and
ters within its should not be “questionable” deemed our fiat. judge federal The had to deter- Howard HEIKKILA Howard L. a/k/a jurisdiction. mine federal court had Heikkila, Heikkila and Reino a/k/a judge the federal the federal had Heikkila, Reino Ap W. Defendants and question.” “go merits of the He pellees. legally explore had the merits of the No. 17065.
jurisdictional right claim. had the determine St. Cloud was not an Indian Supreme Court of South Dakota. meaning within the of the federal Briefs, Considered on Nov. Crimes Act. For the members of this to independently Court review the federal Decided Jan. judge’s wrong. decision on said issue is is precisely And what the author us, theoretically,
would do the fu- The federal per-
ture. courts never to “independently
mit us review” their
isdiction, as Justice Sabers would hold that
we do. United States has a federal
system system courts and a
courts. courts—the state courts as play as the impor-
well federal an courts— role in maintaining tant federalism. Feder- strong,
alism remains as ideál principle.
but also a constitutional
Second, the federal was not order fraud-
ulently obtained.
Third, procedures employed by the reasonably requi-
federal court assure the impartial of the jus-
sites administration of
tice.
Fourth, the decision of federal court public policy
did not contravene the
jurisdiction upon relied. which it
Therefore, my is that conclusion right
applies here—not as a matter of —but as a
rather continuation of criteria we
recently espoused.
MILLER, C.J., WUEST, J., join special concurrence.