United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2705
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Wesley Chuck Jacobs, *
*
Appellant. *
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Submitted: February 16, 2011
Filed: May 2, 2011
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Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
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RILEY, Chief Judge.
Wesley Chuck Jacobs, an enrolled member of the Oglala Sioux Tribe, pled
guilty, pursuant to a written plea agreement, to assault with a dangerous weapon in
Indian Country in violation of 18 U.S.C. §§ 113(a)(3) and 1153. On July 19, 2010,
the district court1 sentenced Jacobs to 36 months imprisonment followed by 3 years
supervised release. Jacobs appeals his conviction and sentence, arguing the
government’s failure to establish compliance with Articles I and V of the Treaty
1
The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
between the United States of America and different Tribes of Sioux Indians, U.S.-
Sioux, April 29, 1868, 15 Stat. 635 (hereinafter Fort Laramie Treaty), deprived the
district court of subject matter jurisdiction over his criminal case. We disagree and
affirm.
Jacobs contends “compliance with Articles I and V of the [Fort Laramie] Treaty
is a prerequisite to the exercise [of] federal criminal subject matter jurisdiction over
a member of the Oglala Sioux Tribe premised on an allegation of wrongdoing against
another tribal member.” “We review the question of subject matter jurisdiction de
novo.” Myers v. Richland Cnty., 429 F.3d 740, 745 (8th Cir. 2005).
Article I, paragraph 3, of the Fort Laramie Treaty provides in relevant part:
If bad men among the Indians shall commit a wrong or
depredation upon the person or property of any one, white, black, or
Indian, subject to the authority of the United States, and at peace
therewith, the Indians herein named solemnly agree that they will, upon
proof made to their agent and notice by him, deliver up the wrong-doer
to the United States, to be tried and punished according to its laws . . . .
Article V of the Fort Laramie Treaty provides in relevant part:
In all cases of depredation on person or property [the agent for the
Indians] shall cause the evidence to be taken in writing and forwarded,
together with his findings, to the Commissioner of Indian Affairs, whose
decision, subject to the revision of the Secretary of the Interior, shall be
binding on the parties to this treaty.
According to Jacobs, the United States cannot “assert federal criminal
jurisdiction over a tribal member under . . . the Major Crimes Act [MCA], 18 U.S.C.
§ 1153” until it has taken “specific steps required by the [Fort Laramie] Treaty,”
including “an investigation by the United States agent, written findings, and a
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decision by the Commissioner of Indian Affairs.” Jacobs also proposes the Fort
Laramie Treaty promises “notice and an opportunity to be heard to the Tribe before
federal courts obtain criminal jurisdiction over a tribal member.”
We consistently have rejected similar challenges to federal subject matter
jurisdiction based upon allegations the United States failed to comply with purported
jurisdictional prerequisites in the Fort Laramie Treaty. See, e.g., United States v.
Drapeau, 414 F.3d 869, 878 (8th Cir. 2005); United States v. Kane, 537 F.2d 310, 311
(8th Cir. 1976) (per curiam); see also United States v. Schrader, No. 10-2706, 2011
WL 679342, at *1 (8th Cir. Feb. 28, 2011) (unpublished per curiam) (rejecting an
Article I notice jurisdictional challenge as “materially indistinguishable” from
Drapeau).
As we explained in Drapeau, even if we assume Articles I and V could
reasonably be construed as having established a jurisdictional requirement at the time
the Fort Laramie Treaty was executed, “Congress’ grant of citizenship to the Indians,
8 U.S.C. § 1401(a)(2) (now § 1401(b), see Pub. L. No. 95-432, § 3, 92 Stat. 1046
(1978)), makes them ‘subject to all restrictions to which any other American citizen
is subject, in any state,’ and that the ‘legislative history and the language of the statute
itself are sufficient expression of a clear Congressional intent to abrogate or modify
any treaty provisions to the contrary.’” Drapeau, 414 F.3d at 878 (quoting with
approval and clarification United States v. Consol. Wounded Knee Cases, 389 F.
Supp. 235, 243 (D. Neb. 1976) (Urbom, C.J.)).
Denying any conflict between the requirements of Articles I and V and the
MCA, Jacobs argues the MCA “did not purport to diminish the [Fort Laramie]
Treaty’s protections for tribal members from prosecution without the requisite Indian
agent investigation, report and determination by the Commissioner.” Jacobs’s
argument is unavailing. “Congress intended full implementation of federal criminal
jurisdiction in those situations to which the Major Crimes Act extended. The
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[procedures Jacobs] seeks to impose would clearly be inconsistent with that
congressional intent.” Kane, 537 F.2d at 311.
We affirm.
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