United States v. Edward Joseph Lowen

1 The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
2 The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3330
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Lance George Owen, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Douglas Weber, Warden of the *
South Dakota State Penitentiary, * [PUBLISHED]
*
Respondent - Appellee. *
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Submitted: June 16, 2011
Filed: July 27, 2011
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Before COLLOTON and BENTON, Circuit Judges, and KOPF,1 District Judge.
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PER CURIAM.
At a tribal housing complex in Peever, South Dakota, Lance George Owen
stabbed two men, killing one. A state court convicted him of first degree murder and
aggravated assault. Sentenced to life imprisonment, he appeals the district court’s 2

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denial of a writ of habeas corpus. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.
Owen, a Native American, challenges the state’s jurisdiction to try him. In
South Dakota, federal courts have exclusive jurisdiction of major crimes committed
by Native Americans within “Indian country.” See 18 U.S.C. § 1153 (conferring
jurisdiction); 18 U.S.C. § 1162(a) (South Dakota not one of six states granted full
criminal jurisdiction over Indian country); State v. Daly, 454 N.W.2d 342, 344 (S.D.
1990).
In Owen’s case, the South Dakota Supreme Court held that the housing
complex’s land is not “Indian country.” State v. Owen, 729 N.W.2d 356, 368-69 (S.D.
2007). Owen unsuccessfully raised the same point in a state habeas petition. He then
sought a writ of habeas corpus under 28 U.S.C. § 2254, presenting several grounds.
The district court denied relief but granted a certificate of appealability on the
jurisdiction issue.
Denial of habeas corpus on a question of law receives de novo review.
Williams v. Norris, 612 F.3d 941, 946 (8th Cir. 2010). Owen does not argue that the
state courts unreasonably determined the facts of the case. See 28 U.S.C. §
2254(d)(2). The writ thus issues only if a state court’s ruling “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1).
[A] decision is contrary to federal law . . . if a state court has arrived at
a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if it confront[ed] facts that are materially
indistinguishable from a relevant Supreme Court precedent but arrived
at an opposite result. A state court unreasonably applies clearly
established federal law when it identifies the correct governing legal

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3 The parties also discuss the “dependent Indian community” test from United
States v. South Dakota, 665 F.2d 837 (8th Cir. 1981). We need not decide whether
South Dakota retains a role in describing the community to which Native Village of
Venetie’s test applies. See Native Vill. of Venetie, 522 U.S. at 531 n.7 (rejecting the
Ninth Circuit’s similar test). The parties agree that the housing complex’s land is the
“appropriate community of reference.” See Hydro Res., Inc. v. EPA, 608 F.3d 1131,
1178 (10th Cir. 2010) (en banc) (Ebel, J., dissenting), citing Yankton Sioux Tribe v.
Podhradsky, 577 F.3d 951, 970-71 (8th Cir. 2009), superseded, 606 F.3d 994 (8th Cir.
2010) (applying Native Village of Venetie without citing South Dakota). In any event,
state court decisions are reviewed for compliance with Supreme Court law. See
Christian v. Dingle, 577 F.3d 907, 912 (8th Cir. 2009) (citing 28 U.S.C. § 2254(d)(1);
further citations omitted).
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principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case. It is not enough for us
to conclude that, in our independent judgment, we would have applied
federal law differently from the state court; the state court’s application
must have been objectively unreasonable.
Collier v. Norris, 485 F.3d 415, 421 (8th Cir. 2007) (quotation marks and citations
omitted).
Federal law defines three classes of Indian country. See 18 U.S.C. § 1151. The
housing complex’s land does not lie within a reservation and is not part of an
allotment, so this case centers on whether it is a “dependent Indian community.” Id.
Dependent Indian communities must “satisfy two requirements – first, they must have
been set aside by the Federal Government for the use of the Indians as Indian land;
second, they must be under federal superintendence.” Alaska v. Native Vill. of Venetie
Tribal Gov’t, 522 U.S. 520, 527 (1998). 3
The town of Peever has fee title to the land where the housing complex stands,
but leases the land for 99 years to the tribal Sisseton-Wahpeton Housing Authority.
Both the South Dakota Supreme Court and the state habeas court correctly identified

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Native Village of Venetie’s two-element test. Both courts reasoned that the housing
complex’s land did not meet it, as the lease indicates that the land was not set aside
by the federal government. The state courts’ straightforward application of Native
Village of Venetie was not objectively unreasonable. See Collier, 485 F.3d at 421.
The district court properly denied habeas relief.
* * * * * * *
The judgment denying a writ of habeas corpus is affirmed.
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