United States v. Tez Jon Duysak ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3935
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United States of America, *
*
Appellee, *
*
v. *
*
Tez Jon Duysak, also known as * Appeal from the United States
Tezcan Ahmet Duysak, * District Court for the
* District of South Dakota.
Appellant, *
* [UNPUBLISHED]
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*
State of South Dakota, *
*
Amicus Curiae. *
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Submitted: September 27, 1999
Filed: December 14, 1999
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Before RICHARD S. ARNOLD, MAGILL, and MURPHY, Circuit Judges.
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PER CURIAM.
Tez Jon Duysak assaulted Benjamin Freeman in the Charles Mix County Jail in
Lake Andes, South Dakota, fracturing his jaw in two places. A jury found Duysak
guilty of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and
113(a)(6). Prior to trial, Duysak had moved to dismiss, arguing that the offense did not
occur within “Indian Country” as defined by 18 U.S.C. § 1151, and that federal
jurisdiction therefore did not exist under section 1153. He had submitted
uncontroverted evidence establishing that Charles Mix County owns in fee simple the
land upon which the County Jail is located, that the land is not part of a recognized
Indian community, and that the land is not held in trust for any Indian tribe. The district
court had denied Duysak’s motion, and he argues on appeal that it erred in so doing.
While the district court’s conclusion was correct under then-existing law, see
Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 99 F.3d 1439
(8th Cir. 1996), rev’d, South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789 (1998),
the legal landscape has changed. We recently concluded that the Yankton Sioux
Reservation “has been further diminished by the loss of those lands originally allotted
to tribal members which have passed out of Indian hands. These lands are not part of
the Yankton Sioux Reservation and are no longer Indian country within the meaning
of 18 U.S.C. § 1151.” Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1030, (8th Cir.
1999) reh'g and reh'g en banc denied (Dec. 8, 1999).
Because Duysak demonstrated that the land upon which the Charles Mix County
Jail is located has passed out of Indian hands, we must conclude that it is not part of
the Yankton Sioux Reservation, that the offense did not occur within Indian Country
as defined by section 1151, and that federal jurisdiction therefore did not exist under
section 1153. Accordingly, we reverse the judgment of the District Court, and remand
with instructions to dismiss the assault charge against Duysak. We also deny the
motion for release on bond pending appeal as moot. The mandate shall issue forthwith.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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