as: 1983 WL 180616 (S.D.A.G.))
Office of the Attorney General
State of South Dakota
*1 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
Pierre, South Dakota 57501
Dear Mr. Geddes:
You have requested an official opinion from this office in regard to the following factual situation:
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:
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.
*2 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.
*3 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.
Mark V. Meierhenry
1983 S.D. Op. Atty. Gen. 77, 1983 WL 180616 (S.D.A.G.)