When is an Indian not an 'Indian'? State v. Daley.

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Lux, Joseph R. “When is an Indian not an 'Indian'? State v. Daley.” South Dakota Law Review 36.2 (1991): 419-433.


Discusses the case of John Jerald Daley, an enrolled member of the Lumbee tribe, who violated South Dakota's second-degree burglary statute while on the Rosebud Sioux Reservation. The South Dakota circuit court in 1989 held that the state had no jurisdiction in prosecuting Daley due to the Indian Major Crimes Act, which deals with crimes committed in Indian Country. This holding ignored the fact that the 1956 Lumbee Act made inapplicable to the Lumbee “the laws of the U.S. which affect Indians because of their status of Indians.” The South Dakota Supreme Court in 1990 (State v. Daley, 454 N.W.2d 342) held that Daley was not Indian under the Indian Major Crimes Act. Rather than examining Daley's status as Indian, the court focused on the state's doctrine of comity to dispose of the case, which requires, in part, that the foreign court have jurisdiction over both the subject matter and the parties. The majority said that conditions of comity had been met (because Daley was not Indian), so the federal court had jurisdiction. The State Supreme Court dismissed the lower court's appeal, since the federal court had already settled the matter. In the meantime, Daly had pleaded guilty to one count of burglary in federal district court and been sentenced to forty-one months. The analysis relates the Health case (509 F.2d 16), which involves the Klamath Indian Termination Act, to the Lumbee, noting that the Klamath Indian Termination Act contains the same language as the Lumbee Act. Thus, the analysis states, the Indian Major Crimes Act could not give jurisdiction to the federal court in the Daly case because the act does not apply to the Lumbee.

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