STATE of South Dakota, Plaintiff and Appellant, v. Matt VANDERMAY, Defendant and Appellee.
No. 17456.
Supreme Court of South Dakota.
Dec. 24, 1991.
478 N.W.2d 289
Considered on Briefs Oct. 24, 1991.
We affirm in part (17 sentenсes resulting from 17 counts of Misuse or Alteration of Brand), reverse (on 19 counts of Grand Theft modifying samе to 1 conviction on 1 count of Grand Theft) and remand for resentencing on the remaining Grand Theft conviction.
WUEST, SABERS and AMUNDSON, JJ., concur.
MILLER, C.J., dissents.
MILLER, Chief Justice (dissenting).
For the reasons stated in my dissent in State v. Johnston, 478 N.W.2d at 285, I would not reach this case. It should be reversed and remanded for retrial on the substantive issues addressed therein.
John P. Guhin, Deputy Atty. Gen., Pierre, for plaintiff and appellant, Mаrk Barnett, Atty. Gen., on the brief.
Matt Vandermay, pro se.
AMUNDSON, Justice.
State appeals from trial court‘s grant of a motion to dismiss for lаck of jurisdiction in favor of Matt Vandermay (Vandermay). We reverse and remand.
FACTS
On July 17, 1990, Vandermay, а non-Indian, was apprehended on Jackson County Road No. 63 within the territorial boundaries of the Pine Ridge Indian Reservation. He was charged with operating an overweight vehicle in viоlation of
ISSUE
WHETHER THE STATE OF SOUTH DAKOTA HAS JURISDICTION OVER A NON-INDIAN WHO IS CHARGED WITH VIOLATING A STATE STATUTE ON A COUNTY ROAD WITHIN RESERVATION BOUNDARIES.
The question of whether the state of South Dakota maintains jurisdiction оver non-Indians committing this type of offense within reservation boundaries is entirely a question of stаte law and, therefore, reviewed de novo by this court. State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D. 1990) (citation omitted) cert. denied, --- U.S. ---, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991).
ANALYSIS
The trial court dismissed State‘s suit based on Rosebud Sioux Tribe v. State of S.D., 900 F.2d 1164 (8th Cir. 1990) cert. denied, --- U.S. ---, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991), which stated, “... we hold the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state [of S.D.].” Id. at 1166. State argues that the tribal plaintiffs in Rosebud did not, in their complaint оr otherwise, argue that the State did not have jurisdiction over non-Indians on county roads through reservations, thus the Rosebud court did not actually decide this issue.
At the district court level in Rosebud, Judge Porter stated:
On May 14, 1986, the Rosebud Sioux Tribe filed this action against defendants, the State of South Dakota and various state officials ... to seek declaratory and injunctive relief restraining South Dakota from exercising jurisdiction over Indians on highways within the Rosebud Indian Reservation.
Rosebud Sioux Tribe v. State of S.D., 709 F.Supp. 1502, 1503 (D.S.D. 1989) (emphasis added). The district court concluded:
Pursuant tо the 1953 version of Public Law 280 and state legislation enacted in 1961, South Dakota validly assumed civil and criminal jurisdiction concurrent with the tribes over Indians on all highways within the state.
Id. at 1515-16 (emphasis added). Thus, the central issue presented to the district court and appealed to the 8th Circuit was whether the state had jurisdiction over Indians on highways through reservations. Although the holding of the 8th Circuit in Rosebud was nоt specific as to its application to Indians versus non-Indians, we conclude that beсause the court was not presented with the question of state jurisdiction over non-Indians on highwаys through reservations, it did not actually decide this issue.* We therefore look to other fedеral law regarding state jurisdiction over non-Indians charged with the violation of a state statute within the boundaries of a reservation.
Long-standing precedents of the United States Supremе Court hold that state courts have exclusive jurisdiction over crimes committed in Indian country involving only non-Indians, or “victimless” crimes. Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990) (citing N.Y. ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946)); United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1882). See also Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). The crime with which Vandermay was charged was a “victimless” crimе involving only a non-Indian, and we therefore conclude the state has jurisdiction over the matter. To hold otherwise would create a jurisdictional void over this type of an offensе, and while the United
Much of the focus in Rosebud was on South Dakota‘s interpretation of
We therefore hold State has jurisdiction over non-Indians on county highways which run through reservations. The trial court‘s decision is reversed and this matter is remanded for proceedings consistent with this decision.
MILLER, C.J., and WUEST and SABERS, JJ., concur.
HENDERSON, J., concurs with writing.
HENDERSON, Justice (concurring).
If tribal courts have no jurisdiction оver non-Indians, if state courts do not, who does? No one, I reckon, and that would be sheer сhaos.