Jackley statement on Jurisdiction Over Marijuana in South Dakota and Our Reservations

Jurisdiction Over Marijuana in South Dakota and Our Reservations

PIERRE – The possession, distribution and manufacture of marijuana is a violation of both federal and state law. As South Dakota’s Attorney General, I respect each Tribes authority to pass laws that govern Indian persons within Indian Country. 

It is equally important to recognize that South Dakota law prohibits the internal and physical possession, distribution, and manufacture of marijuana by: 

(1) all non-Indian persons anywhere in South Dakota including within Indian country; 

(2) all persons, including tribal members, outside of Indian Country. 

These principles are well established and supported under U.S. Supreme Court and South Dakota Supreme Court decisions. 

Since the United States Supreme Court’s 1978 Oliphant opinion, the law has been clear that the inherent criminal jurisdiction of an Indian tribe does not extend to non-Indians. As far back as the 1881 McBratney opinion the U.S. Supreme Court found that state courts have jurisdiction over, among other matters, victimless crimes committed by non-Indians within Indian country. 

Furthermore, the South Dakota Supreme Court in its 1977 Winckler opinion found that state courts have jurisdiction over all persons where an element of the crime is committed outside of Indian country. The South Dakota Supreme Court in its 1991 Vandermay opinion reaffirmed that state court jurisdiction exists for criminal conduct by non-Indians with Indian country. 

“I want to encourage Tribal leaders to continue to work with state authorities to better ensure our respective laws are followed, public safety on our roads remains a consideration, and that both Indian and non-Indian persons are not put in harm’s way by the jurisdiction complexities being created by our federal government,” said Attorney General Jackley.
-30-