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State v. Cummings4/21/2004
and Spotted Horse's core issue of state criminal jurisdiction over tribal members. In light of this difference, it is simply too far a stretch to now conclude that Hicks requires a reversal of the second underpinning of Spotted Horse. Furthermore, it must be recognized that this Court's own view of this jurisdictional subject is not a model of stability. The Court's opinion has changed the last two times the jurisdictional issue has been considered. See In re Hankins, 80 SD 435, 125 NW2d 839 (1964) (no jurisdiction); Onihan, 427 NW2d 365 (jurisdiction, impliedly overruled Hankins); and Spotted Horse, 462 NW2d 463 (no jurisdiction, overruled Onihan). Because this Court has equivocated on the jurisdiction question in the past, it remains prudent for this Court to follow Justice O'Connor's procedural course of following our "best source of 'coherence in the various manifestations of the general law of [Indian jurisdiction][.]'" Hicks, 533 US at 388 (quoting Atkinson Trading Co., Inc. v. Shirley, 532 US 645, 121 SCt 1825, 1828-29, 149 LEd2d 889 (Souter, J., concurring)). This course is especially appropriate because the Supreme Court specifically declined to review this Court's last word on the subject in Spotted Horse. 462 NW2d 463, cert. denied, 500 US 928, 111 SCt 2041, 114 LEd2d 125 (1991).
. Therefore, I conclude that Hicks is not sufficiently compelling today to require a reversal of course yet a third time. In the absence of a clearer directive from the Supreme Court or a different request for reconsideration, I believe that stability and predictability in the law require our adherence to Spotted Horse.
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