| (Cite
as: 1983 WL 180616 (S.D.A.G.))
Office
of the Attorney General
State
of South Dakota
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Official Opinion No. 83-35
September
28, 1983
Unified
Judicial System jurisdiction on Indian Reservations
Mr.
Mark G. Geddes
State
Court Administrator
South
Dakota Unified Judicial System
State
Capitol
Pierre,
South Dakota 57501
Dear
Mr. Geddes:
You have requested an official opinion from this office in
regard to the following factual situation:
FACTS:
Various court service officers employed by the Unified Judicial System
of South Dakota conduct some of their activities on Indian
reservation lands. These activities include contact on the reservation of
various family members, employers and others for the purpose of
gathering information for a presentence/prehearing investigation report used in sentencing
by the state trial court judge. Court service officers must
also supervise probationers who have returned to the reservation after
sentencing.
Based upon the above facts you have asked the following
questions:
QUESTIONS:
1. Do state court service officers have the authority to
go onto the reservations to conduct presentence/prehearing investigations and to
supervise probationers living on the reservations?
2. What protection does the state give to court service
officers who are arrested or detained by tribal police on
the reservation for an alleged traffic or other minor criminal
violation of Indian tribal law?
3. Can the state circuit courts accept jurisdiction of a
child in need of supervision
[CHIN] petition arising from an alleged violation of state law
by an Indian child residing on the reservation and committed
on the Indian reservation?
IN
RE QUESTION NO. 1:
The question of whether the state may take a certain
action within the confines of an Indian reservation can be
answered after a review of the principle of law discussed
by the Supreme Court of the United States in Williams
v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d
251 (1959). That decision states that, absent governing acts by
Congress, the guiding determinant is whether the state action infringes
upon the right of the reservation Indians to make their
own laws and to be ruled by them. Williams, 358
U.S. at 223.
Here, it is clear that the state court service officers
are making no such infringement upon the reservation Indians. The
activities involved in gathering information for presentence/prehearing investigation reports and
the supervision of state court probationers who have returned to
the reservation are not activities which infringe upon the right
of any tribe to make its own laws and to
be ruled by them. Therefore, it is my opinion that
the answer to your first question is YES, the state
court service officers have the authority to
go onto the Indian reservations to conduct presentence/prehearing investigations and
to supervise state court probationers living on the reservations.
IN
RE QUESTION NO. 2:
It is a well-founded principle in the law that the
United States government, and through it, the individual Indian tribes,
has jurisdiction over crimes committed in 'Indian country,' as that
term is defined in 18 U.S.C. § 1151(a),
DeCoteau v. District County Court, 420 U.S. 425, 427, 95
S.Ct. 1082, 43 L.Ed.2d 300 (1975); Stankey v. Waddell, 256
N.W.2d 117, 118 (S.D. 1977). It must be noted, however,
that tribal courts have no jurisdiction over non-Indians for criminal
activity occurring on an Indian reservation. Oliphant v. Suquamish Indian
Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209
(1978). Therefore, any non-Indian state court service officers performing their
duties upon an Indian reservation are subject to federal, but
not tribal jurisdiction in regard to alleged violations of traffic
or criminal laws.
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The relationships between the State of South Dakota and the
various tribes located within the reservations in South Dakota are
such that no state court service officer would be arrested
or detained on a reservation for mere performance of the
investigatory and supervisory duties described in your request.
If a tribal officer did arrest a non-Indian state court
service officer on the reservation for a federal or state
offense, then, unless the tribal officer is cross-deputized, the arrest
is only a citizen's arrest. In that case, the tribal
officer must transfer custody of the non-Indian offender to either
the federal or the state law enforcement officers, whichever is
appropriate. SDCL 23A-4-1. In any case, it is my opinion
that the answer to your second question is that state
court service officers would receive no special or different protections
from the state, for duties performed on the reservation, than
would be provided to any other person.
IN
RE QUESTION NO. 3:
The provisions in the Indian Child Welfare Act [ICWA], 25
U.S.C. §§ 1901
et seq., deal specifically with your third question. In 25
U.S.C. § 1903(1),
the ICWA defines 'child custody proceeding' to include 'any action
removing an Indian child from its parent . . .
but where parental rights have not been terminated.' The ICWA
specifically states the term 'child custody proceeding' does not include
'placement based upon an act which, if committed by an
adult, would be deemed a crime.' Id. Accordingly, a child
found 'delinquent,' as that term is defined in SDCL 26-8-7,
would not fall under this definition, while a 'child in
need of supervision,' as that term is used in
SDCL 26-8-7.1, would fall within the provision of the Act.
See, Note, 'The Indian Child Welfare Act of 1978: Provisions
and Policy,' 25 S.D. Law Review 98, 101-102; F. Cohen,
Handbook of Federal Indian Law, 348 (1982 ed.).
The ICWA continues, stating that 'an Indian tribe shall have
jurisdiction exclusive as to any State over any child custody
proceeding involving an Indian child who resides or is domiciled
within the reservation of such tribe.' 25 U.S.C. § 1911(a).
Thus, the following jurisdictional distinctions appear to exist:
1. An Indian tribe has jurisdiction over an Indian child
domiciled on the reservation for acts committed on the reservation
whether or not his acts would constitute a crime if
committed by an adult. This jurisdiction exists whether the child
is physically on or off the reservation when the tribe
acts.
2. An Indian tribe has jurisdiction over an Indian child
domiciled on the reservation for acts committed by him off
the reservation if the act would not constitute a crime
if committed by an adult. There is an emergency exception
which permits state jurisdiction when children are outside of the
reservation in order to prevent physical harm to them. 25
U.S.C. § 1922.
3. The state has jurisdiction of an Indian child whether
domiciled on or off the reservation if the child's act
was both (a) committed off the reservation and, (b) if
the act would be criminal if committed by an adult.
This
jurisdiction may be exercised only if the child is outside
the reservation when the state acts.
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Therefore, it is my opinion that the answer to your
third questions is NO, the state circuit courts cannot unilaterally
accept jurisdiction of an Indian child in need of supervision
petition arising from an alleged violation of state law by
an Indian child residing on the reservation and committed on
the Indian reservation. See, Matter of Guardianship of D.L.L. and
C.L.L., 291 N.W.2d 278, 281 (S.D. 1980). ('Even when a
tribal member is off the reservation, tribal courts provide the
appropriate forum for settlement of disputes over personal and property
interests of Indians that arise out of tribal relationships.')
It is possible, however, for state courts to assume this
jurisdiction under the provisions of 25 U.S.C. § 1919,
which states:
States and Indian tribes are authorized to enter into agreements
with each other respecting care and custody of Indian children
and jurisdiction over child custody proceedings, including agreements which may
provide for orderly transfer of jurisdiction on a case-by-case basis
and agreements which provide for concurrent jurisdiction between States and
Indian tribes.
It does not appear that the type of agreement set
forth in 25 U.S.C. § 1919
can be made in South Dakota by either the Executive
Branch or the Judiciary, including individual judges, without a change
in the present state law.
Regardless, absent such an agreement, the state courts have no
jurisdiction over such CHIN proceedings.
Respectfully
submitted,
Mark
V. Meierhenry
Attorney
General
1983 S.D. Op. Atty. Gen. 77, 1983 WL 180616 (S.D.A.G.)
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