SEYMOUR v. SUPERINTENDENT

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Argument of Glen A. Wilkinson

Chief Justice Earl Warren: Number 62, Paul Seymour, Petitioner, versus Merle E. Schneckloth, Superintendent of Washington State Penitentiary.

Mr. Wilkinson.

Mr. Glen A. Wilkinson: Mr. Chief Justice, if it please the Court.

This case is here by virtue of an order of this Court granting a motion for leave to proceed in forma pauperis in a petition for writ of certiorari to the Supreme Court for the State of Washington.

The facts if the Court please, are these, Paul Seymour, the petitioner is an American Indian.

He is an enrolled member of the Colville Tribes of the Colville Indian Reservation in the State of Washington.

On or before August 25, 1956, the petitioner with others burglarized and I will assume during all of my statement that the facts of the burglary are true, burglarized the market in the Village of East Omak, in the State of Washington.

I should like to refer the Court at this point to Appendix B of our opening brief which contains a sketch of the Colville Indian Reservation as it existed prior to 1892.

If the Court please, you will note that the northern boundary is the Canadian boundary.

The eastern and southern boundaries are the Columbia River.

The western boundary is the Okanogan River.

You will note that inside the boundary on the west -- on the east side of the Okanogan River is the Village of East Omak.

On August 27, 1956, Seymour was arraigned in the Superior Court in and for the County of Okanogan.

He was charged with the state crime of burglary in a second degree.

He pleaded not guilty.

On October 09, 1956, not quite two months later, he appeared in the court with appointed counsel and counsel asked to leave under the Washington procedure to withdraw the plea of not guilty to the crime of burglary in the second degree and to enter a plea to the crime of attempt of burglary in the second degree.

That request was granted.

The Court sentenced petitioner to a term of not to exceed seven and a half years in the state penitentiary.

Apparently, under the Washington State procedure that is in referred to the appropriate administrative body and that body took action to set seven and a half years as the minimum punishment.

After confinement, Seymour applied to the Supreme Court to the State Washington for a writ of habeas corpus.

Among other allegations, he alleged that the crime committed was within Indian country as defined by Section 1151 of Title 18 of the United States Code and that therefore, the States of Washington had no jurisdiction to try or sentence him.

To return an answer of the Superintendent of the Washington State Penitentiary according to the Washington Supreme Court raised factual issues which it referred to the Superior Court in and for the County of Okanogan.

It was to determine among other things whether the locus of the crime was within Indian country.

The Superior Court held a hearing, took testimony and it made a study of the statutes involved.

It held that the situs of the crime was not Indian country and that therefore, the courts of the State of Washington had jurisdiction.

In reaching this conclusion, it followed the prior ruling of its own at 1919 relating to the same reservation and concluded that since the precise track of land upon which the crime was committed had passed from Indian travel ownership to a trust a lot in status to an individual member and then to a non-Indian in fee simple.

The area was not within Indian country as defined by the Federal Criminal Code.

On brief, this is the issue which is before this Court today namely, was the locus of the crime within Indian country as defined by Section 1151 (a) of the Federal Criminal Code, Title 18.

That section reads, “All land within the limits of any Indian reservation under the jurisdiction of the United States Government notwithstanding the issuance of any patent is Indian country and as to Indian country federal jurisdiction is exclusive.”

We say the Washington Supreme Court committed error to show that it did -- it's necessary to review a series of four activities relating to the Colville Indian Reservation.

The first concerns the period prior to 1872.

Prior to that date, Colville Tribe and the tribes which are affiliated with it and now still occupied the Colville Indian Reservation occupied a considerably larger area generally in the northeastern section of the State of Washington.

On July 02, 1872, an executive order was promulgated.

That set forth the boundary of the reservation as I previously indicated to the Court namely, the Canadian border on the north, the Columbia River on the east and south and the Okanogan River on the west.

The next step which is pertinent is an Act of Congress of July 01, 1892, that Act related and affect -- related to and affected only the North Half of the Colville Reservation.

As the Court will see the North Half has been indicated on the sketch mark Appendix B to our opening brief.

That Act provided --

Justice Hugo L. Black: (Voice Overlap) it's in the north or the south?

Mr. Glen A. Wilkinson: The 1892 Act related only to the North Half --

Justice Hugo L. Black: I mean the particular place that we had -- we have under consideration of this case had this crime occurred?

Mr. Glen A. Wilkinson: The crime occurred in the South Half.

Justice Hugo L. Black: South?

Mr. Glen A. Wilkinson: Which we've called here the diminished --

Justice Hugo L. Black: Yeah.

Mr. Glen A. Wilkinson: -- reservation.

The Act of 1892 which dealt only with the North Half vacated and restored to the public domain; all lands within that North Half except for allotments which had been made to individual Indians.

In addition, it described as paralleling the 49th parallel of latitude that marked -- the line we've marked in the center of our sketch as the center limit of the area vacated and restored to the public domain.

In addition, it provided the proceeds and the sales or entries of lands and the North Half should be deposited in the treasury of the United States to be used for public use.

The next and last act that's necessary to refer to is the Act of Congress of March 22, 1906.

This Act related to the South Half, what we've called the diminished reservation and which includes the town of East Omak.

That Act after providing for allotments, to members of Colville Tribes and some reservations for administrative purposes through open the settlement and entry under the homestead laws, the surplus land.

The proceeds of these sales were to be deposited in the treasury of the United States to the threat of the Colville Tribes.

That's one distinction between that and the Act of 1892.

Justice Hugo L. Black: Where did the money on the North Half go of --

Mr. Glen A. Wilkinson: Went to the public treasury for appropriation for the general public use.

Justice Hugo L. Black: General use.

Mr. Glen A. Wilkinson: Under the 1906 Act, it was deposited in the treasury for the benefit of the Indians.

The other distinction between the Act of 1892 and the Act of 1906 is that the Act of 1892 drew a new boundary, tracks it with midway through the reservation.

The 1892 Act in effect separated the North Half from the reservation.

The 1906 Act drew a new boundary for the South Half or diminished reservation.

Now, the position of the State and as we understand it is that the Act of 1906 by opening the South Half to settlement under the homestead laws diminished if not dissolved the Colville Reservation.

We say on the basis of many cases decided by this Court and on the basis of reasoning and taking into account the history which has developed into the present reading of Section 1151 (a) of the criminal code, the holding of the Supreme Court to the State of Washington must be rejected.

I have seven reasons, I would like to recite.

The first is a distinction.

It's already pointed out with respect to the 1892 Act and the 1906 Act.

Justice William J. Brennan: (Inaudible) reservation?

Mr. Glen A. Wilkinson: Yes sir.

Justice William J. Brennan: (Inaudible)

Mr. Glen A. Wilkinson: If it was held in fee patent by a non-Indian at the time of the crime.

Justice William J. Brennan: (Inaudible)

Mr. Glen A. Wilkinson: To the benefit and the credit of the --

Justice William J. Brennan: (Inaudible) at the jurisdiction that although the transaction seem occur on lane that it hasn't consult is a might been a (Inaudible) nevertheless that mean (Inaudible)

Mr. Glen A. Wilkinson: Yes sir, under the Section 1151 (a) that is land still within the limits of an Indian Reservation and that Section defines Indian country as all land within the limits of an Indian Reservation --

Justice William J. Brennan: (Inaudible)

Mr. Glen A. Wilkinson: Not -- not withstanding the issuance of any patent.

Justice William J. Brennan: I had (Inaudible)

Mr. Glen A. Wilkinson: It remained such until Congress takes action to change (Voice Overlap) boundaries of that reservation, yes sir.

Now, that fit your seven reasons why we think the action of the Washington Supreme Court must be reversed.

Justice William O. Douglas: Seven?(Voice Overlap)

Mr. Glen A. Wilkinson: One is a distinction --

Justice William O. Douglas: Seven?

Mr. Glen A. Wilkinson: Yes sir.

One is a distinction I've already pointed out between the Act of 1892 and 1906.

We say that the 1892 Act did redefine the boundaries.

It separated the North Half in the reservation.

The 1906 Act did not do that.

The United States was merely acting as trustee for the Indians and until Congress redefines or diminishes that reservation, it's still Indian country.

Second, this conclusion is supported by an uninterrupted series of congressional actions between the period 1906 to 1956.

Justice William J. Brennan: (Inaudible)

Justice William O. Douglas: Yes sir, I would assume that somewhere in the meantime Congress would take action to --

Justice William J. Brennan: Well, that is not.

Everything (Inaudible)

Mr. Glen A. Wilkinson: That is my position, of course, that did not happen here a small amount only with (Inaudible).

Justice Felix Frankfurter: Does the taking of the 1953 Act, qualify your Act to the district term?

Mr. Glen A. Wilkinson: You're speaking of Public Law 28 (o) of the 83rd Congress which transferred --

Justice Felix Frankfurter: 1952?

Mr. Glen A. Wilkinson: Federal jurisdiction to central states.

Justice Felix Frankfurter: Any state if it expressly, focused so to do by appropriate (Voice Overlap) --

Mr. Glen A. Wilkinson: Yes sir and the Washington State legislature in 1957 took action to assume jurisdiction over Indian Reservations where Indians consent the Indian tribes of the Colville Reservation have not consented to state jurisdiction.

In fact, the last figure shows that approximately half of 20 similar Indian tribes in the State of Washington have consent.

Justice Hugo L. Black: Does the record show how minimum was of this particular tribe?

Mr. Glen A. Wilkinson: I'm not certain (Voice Overlap) here --

Justice Hugo L. Black: On this reservation?

Mr. Glen A. Wilkinson: There are approximately 3600.

Justice Hugo L. Black: On this reservation?

Mr. Glen A. Wilkinson: Yes sir.

Justice Felix Frankfurter: In the -- contracted in the North Half?

3600 in the North Half?

Mr. Glen A. Wilkinson: Well, there are 3600 enrolled members, they live on the reservations, some lived in the North Half and some live elsewhere something more than a half live on the reservation.

In addition, my second point is that over a period of 50 years, Congress has shown the recognition of the continuing existence to Colville Reservation occurred --

Justice William O. Douglas: That this crime happened after the 1956 Act was passed?

Did this crime happen after or before the 1956 Act?

Mr. Glen A. Wilkinson: This crime act happened approximately one month after the 1956 Act which I assume you realized restored to tribal ownership those lands which have not been disposed off under the homestead and other public land laws and that represented in excess of 800,000 acres, the South Half or diminished portion of the reservation approximates a 1,365,000 acres.

Justice Felix Frankfurter: But the 1956 Act made no -- did not qualify the conditions under which impediment of the statute said was -- was removable by states, by the 1953 Act, is that right?

Mr. Glen A. Wilkinson: If I -- (Voice Overlap) --

Justice Felix Frankfurter: -- did I make my question clear?

Mr. Glen A. Wilkinson: If I understand your question --

Justice Felix Frankfurter: 50 -- let's see if I get this.

By the Act of 1953 some names states could remove the impediment binding their juris -- limiting their jurisdiction, is that right?

Mr. Glen A. Wilkinson: Yes sir.

Justice Felix Frankfurter: And then toward the end, there's a section or two in which any state might do that provided the state affirmatively make such accommodation even if constitution or its statute.

Now, as I understand it, Washington has not done so because it has not received the consent of the Colville Tribes, is that right?

Mr. Glen A. Wilkinson: That's correct.

Justice Charles E. Whittaker: And therefore the 1956 Act doesn't affect that problem, is that right?

Mr. Glen A. Wilkinson: No sir, oh, the only effect to the 1956 Act is rather indirect when namely that over 800,000 acres have been restored to tribal ownership within the diminished reservation (Voice Overlap) --

Justice Felix Frankfurter: But it doesn't touch the problem, does it?

Mr. Glen A. Wilkinson: Sir?

Justice Felix Frankfurter: It does not touch --

Mr. Glen A. Wilkinson: -- but I don't think (Voice Overlap) --

Justice Felix Frankfurter: -- the problem before this Court now?

Mr. Glen A. Wilkinson: I don't think it does except as the history of that act (Voice Overlap) --

Justice Felix Frankfurter: Alright.

Mr. Glen A. Wilkinson: -- shows that further recognition by a Congress.

In addition to Congress, the Executive Branch over the same period of time and that is from 1892 to 1956 has taken action issued rulings through its Solicitor which show continuing recognition that the Colville Reservation has existed for the period involved.

My fourth point related to the action of the Washington State legislature and I said in answer to question early from, I believe Mr. Justice Brennan, that in order for the boundaries of reservation to be changed, it takes action by Congress to do that.

I think that's apparent from the Celestine case in 215 U.S. and I think that principle has been enunciated by this Court as recently as William against Lee in 358 U.S.

Next, the Washington Supreme Court itself has correctly interpreted a similar law that is similar to 1906 Act here which applies to the Yakima reservation.

In Appendix E of our brief, we have shown less than a parallel column, the Yakima Act, the Colville Act and I submit there's no substantial distinction between those.

Yet, in interpreting the Yakima Act, the Washington Supreme Court has freed at least six Indian citizens because it decided correctly that the State had no jurisdiction.

Apparently, it has not seen this similarity between that Act and the Act which relates to the Colville Reservation.

Finally, to emphasize my last point, under the clear language of Section 1151 (a) which confines Indian country as all lands within the limits of any Indian Reservation under the jurisdiction of United States Government notwithstanding the issuance of any patent, that land is Indian country and the federal jurisdiction is exclusive.

In conclusion, we submit that the Supreme Court of the State of Washington should be reversed then that the petitioner Seymour must be released in custody.

Chief Justice Earl Warren: Mr. Way.

Argument of Stephen C. Way

Mr. Stephen C. Way: Mr. Chief Justice, may it please the Court.

Counsel for the petitioner has stated very well the facts of this case and with one exception I don't feel it's necessary to elaborate on it.

Now, I think in order to have a full understanding of this case, there must be some explanation of the geography involved here.

The town of Omak is an incorporated town under the laws of the State of Washington.

The town of Omak travels the Okanogan River.

Part of the town is on the west side of the Okanogan River, the other portion known as East Omak where the crime at issue in this case, was involved, was committed.

Now, East Omak was created by a government townsite which was selected by the Secretary of the Interior under the provisions of Section 11 of the Act of March 22, 1906.

And East Omak shares the same boundary as -- does the original as the boundaries were drawn by the Executive Order of President Grant in 1872.

Now, the questions presented by this case, the ultimate question of course is whether or not the petitioner here was denied due process of law by the Superior Court of the State of Washington for Okanogan County.

Justice John M. Harlan: Could I ask you a preliminary question?

The Solicitor General, a former Solicitor General was invited by the Court to file a memorandum on this question and he came up with a memorandum on the petition agreeing with the petitioner that this was part of an Indian reservation, did you -- I assume you've seen this memorandum.

Mr. Stephen C. Way: Yes, I have Your Honor and I --

Justice John M. Harlan: Do you disagree with it?

Mr. Stephen C. Way: -- he relies somewhat on the same ground as the petitioner here that a continuation of acts by Congress recognizes a continuing existence and extent to the reservation.

Now, number one, Congress has never defined what it means by a reservation, an Indian reservation at least, in the Indian law or the laws relating to Indian criminals jurisdiction.

]Number two, each one of these Acts, the subsequent acts deals not with the subject of criminal jurisdiction and at least two of those Acts, the Act of March, 1918 and the one in 1920 to which I will refer later speaks of the former Colville Indian Reservation.

Now, that certainly does not show an intention of a continuing recognition.

And on those grounds Your Honor, we feel that that has a little substance.

Now, due process, the due process question has depended of course on whether or not the United States Court or the state courts had jurisdiction in this case.

And this is dependent upon an interpretation principally of Section 1151 and 1153 of Title 18.

1153 is the so-called Major Crimes Act which let's say number of crimes, one of which is burglary which no doubt includes the lesser -- included offense of attempted burglary which was committed here.

Now, 1153 in order for jurisdiction to best in the United States Court, the crime must have been committed in Indian country.

Now, I believe it is clear that even a crime is committed by an Indian on lands clearly within the jurisdiction of the state courts that there is no question as to whether or not that court might assume the jurisdiction.

Now, Section 1151 provides Indian country a means all land within the limits of any Indian reservation under the jurisdiction of the United States Government.

Now, as I pointed out, Congress has not indicated what it means by an Indian reservation.

Therefore, we submit that the definition is a subject for judicial determination.

Now, the Act of March 22, 1906, opened to sale, entry, and settlement by non-Indians large portions of the Colville.

Now, we submit Your Honors that it is inconsistent to maintain that the lands so sold and settled upon can be set aside for the use and occupancy of Indians and at the same time for the use and occupancy of non-Indians.

Justice Hugo L. Black: May I ask you a question in that and see if I can understand?

Mr. Stephen C. Way: Yes, Your Honor.

Justice Hugo L. Black: Is it your position that the land that have been sold even within this that the reservation are no longer within the reservation, within the meaning of the statute (Voice Overlap) --

Mr. Stephen C. Way: Yes Your Honor that is our position.

Justice Hugo L. Black: (Voice Overlap) or is it your position that there is no reservation?

Mr. Stephen C. Way: We contend this Your Honor that the Act of March 22, 1906 which opened the reservation to sale and entry and those lands which were sold and entered upon cannot be longer Indian country or within Indian reservation and the Act had the effect of separating those lands so sold and settled upon and they no longer were a part of the reservation and the Act had the effect of redefining the boundaries of the reservation.

Justice Hugo L. Black: Then you would have island inside the reservation which was not a part of the reservation?

Mr. Stephen C. Way: I submit Your Honor that under the language of Section 1151, if there is an island --

Justice Hugo L. Black: I'm not saying whether that's right or wrong, I was just trying to get your position squarely.

Mr. Stephen C. Way: I submit Your Honor, if the redefinition of the boundaries and there is a land settled upon by a non-Indian which sort of creates island then it would be within Indian country.

But it's my understanding that most of this land lies on the perimeter of the reservation along the Okanogan, along the shores of the Columbia and the San Poil Rivers.

Now, (Voice Overlap) especially as I pointed out the town of East Omak or that portion of the town of Omak which is East Omak shares the same boundary as originally described in the Executive Order therefore, it could not create an island.

Justice Hugo L. Black: But if it were in an island you would say it was in the reservation?

Mr. Stephen C. Way: I would Your Honor, yes.

Under the language of Congress (Voice Overlap) --

Justice Hugo L. Black: (Voice Overlap) it's only on the boundary line then where the land has been sold on the boundary line under that 1906 Act if you say it's not part of the Indian reservation?

Mr. Stephen C. Way: That's right.

Justice Hugo L. Black: And where did this happen on East?

Mr. Stephen C. Way: East, East Omak Your Honor.

Justice Hugo L. Black: Omak?

Mr. Stephen C. Way: Yes.

Justice Hugo L. Black: Is all that land -- has all the land in East Omak been sold to non-Indians?

Mr. Stephen C. Way: I cannot answer that with (Inaudible) certainty that all of the land was sold to non-Indians no, I do not know.

Justice Hugo L. Black: Well, how would we know then whether -- whether this is on the boundary?

Mr. Stephen C. Way: Well, as I said earlier, and I will come to this later, Section 11 of the Act are required the or authorized, might I say, the Secretary of the Interior to create townsites for the quote “future public interest” and to make such reservations or parts or other survey in to lots and blocks, sell the same under his regulations that money so received to be paid for the benefit of the Indians under Section 6 of the Act.

Justice Potter Stewart: How big place is East Omak?

Mr. Stephen C. Way: Its population is probably 300 people.

It comprises an area, I would say, of two square miles.

It has within its boundaries two groceries stores, two restaurants, a large lumber mill, a fruit warehouse, a railroad, the city park, the rodeo grounds, a public school.

Justice Hugo L. Black: I don't -- I don't like to -- I don't want to bother you but I do want to get absolutely clear.

Is it your position that all of the lots in this town that had been sold to non-Indians seized to be a part of the reservation that those that Indians have kept are part of the reservation?

Mr. Stephen C. Way: No, it is not Mr. Justice Black.

In Section 11 (Voice Overlap) --

Justice Potter Stewart: Suppose an Indian could own a property and -- in Seattle and it would make this property for an Indian reservation?

Mr. Stephen C. Way: Certainly not.

But here under Section 11, there's authority in the Secretary of the Interior to create another reservation for the future public interest, not the Indian interest, the future public interest.

Justice Hugo L. Black: Has he done that?

Mr. Stephen C. Way: Yes, he has Your Honor and the townsite plot has been filed with the auditor of -- the county auditor of Okanogan County.

And when it was so filed, it became dedicated to the future public interest.

Justice Hugo L. Black: Where is that in the record?

Mr. Stephen C. Way: I -- Your Honor it's been filed as an exhibit in this case along with the original deed to the land in question here and that is Lot 9, Block 118 of the government townsite of Omak.

Justice Hugo L. Black: You say that the Secretary formally created a new reservation?

Mr. Stephen C. Way: That is in essence what the Section 11 provides.

Justice Hugo L. Black: Well, did he though formally create (Voice Overlap) --

Mr. Stephen C. Way: (Voice Overlap) he formally had consent --

Justice Hugo L. Black: -- where we can find that spelled out?

Mr. Stephen C. Way: Yes Mr. Justice Black he did.

It was cert -- no, by survey lots parcels even like you have in the City of Washington D.C. allot 100 feet wide, number nine, 300 feet long, streets -- streets are set out.

Justice William J. Brennan: (Inaudible)

Mr. Stephen C. Way: Yes he had.

Justice William J. Brennan: (Inaudible)

Mr. Stephen C. Way: No, it's laid out as a community with streets, alleyways, places for sidewalks and lots individually numbered (Voice Overlap) within blocks.

Justice William J. Brennan: (Inaudible)

Mr. Stephen C. Way: The -- a copy of the plot has been filed as an exhibit here.

Justice William J. Brennan: (Inaudible)

Mr. Stephen C. Way: The lots were sold in both 1916 and 1919, I believe.

Justice William J. Brennan: And when is the last time (Inaudible)

Mr. Stephen C. Way: I believe it was 1960 and I don't accurately recall of.

Chief Justice Earl Warren: Mr. Way, is there any statutory language to which you can refer us which would make any distinction between lands on the periphery of the -- of the reservation as distinguished from lands in the interior?

I know you made that distinction I understood.

Mr. Stephen C. Way: Well, I maintain Your Honor and we maintain that the Act on March 22 in its entirety and in particular Section 11 has the effect of redefining the boundaries.

Now, if for chance it -- it should create or there should be an island, the language of Section 1151, all land within the limits, now, if the limits are re-described and it happens that there is an island then it would be within the re-described boundaries.

So, that is my conclusion of after study of this.

But Your Honor.

Does that answer your question?

Chief Justice Earl Warren: Yes.

Mr. Stephen C. Way: Now, the petitioner and both -- and the Solicitor General as well in their briefs submit that the subsequent acts of Congress recognized a continuing existence and extent of the reservation.

Two of these acts, the Act of March 11, 1918 and the Act of March 19, 1920 in their titles refer to the former Colville Indian Reservation.

Both of these acts extended the times for the payments to be made by persons who have purchased lands under the opening of the reservation by the Act of March 22, 1906.

Certainly, this is not a -- an expression of congressional intent of a continuing existence and extent of the reservation.

It would seem to be a contrary expression that there is an intention or an expression that the Colville does not continue to the same extent as prior to the more -- Act of March 22.

Now, (Voice Overlap) further --

Chief Justice Earl Warren: Mr. Way, is there other any -- are there any annual appropriations from Congress to reservation of this kind?

Mr. Stephen C. Way: Yes, there are, Your Honor.

Chief Justice Earl Warren: How do they refer to it in the -- in their appropriation bill, I was wondering?

Mr. Stephen C. Way: I do not know with certainty but I presume that they do refer to the Colville Indian Agency on the Colville reservation such language of that.

Chief Justice Earl Warren: Do they have a superintendent (Voice Overlap) --

Mr. Stephen C. Way: Yes, they do.

Chief Justice Earl Warren: -- of the -- as a -- as a superintendent of --

Mr. Stephen C. Way: Yes.

Chief Justice Earl Warren: -- the reservation?

Justice Felix Frankfurter: Now, in the adversary of the Secretary of Interior, there are funds derived from the sale of this property, are there not?

Mr. Stephen C. Way: That is (Voice Overlap) --

Justice Felix Frankfurter: And that they -- they held in trust funds for Indian purposes?

Mr. Stephen C. Way: They are under the act to be expended for the benefit of the Indians by the Secretary of the Interior and for per capita payments.

The money is received for the sale of these lands or to be deposited in this -- in the treasury and to be expended by the secretary --

Justice Felix Frankfurter: Do you happen to know the account under which they deposit it?

Mr. Stephen C. Way: No I --(Voice Overlap)

Justice Felix Frankfurter: -- there's in a mingled Indian fund if they are specified, is that right?

Mr. Stephen C. Way: I -- Well, I have no knowledge of what account it might be.

Justice Felix Frankfurter: The fees are attributable to funds derived from properties within Indian territory or Indian country?

Mr. Stephen C. Way: Well, it's -- the money is received from the sale of the lands under the Act of March 22 or to be deposited and expended for the benefit of the Indians and to make for per capita payments to the Indians.

Now, an additional Act of Congress, the Act of August 31, 1916 amended the Act of March 22, 1906, prohibiting the introduction of intoxicants into the land sold and disposed of under the Act in the townsites created under Section 11.

Now, if Congress by this Act intended to make an expression of continuing existence of the reservation, this amendment was completely superpose for the Indian liquor laws already covered the subject.

And certainly, this is not an expression of congressional intent of a continuing existence of the reservation.

Now, there is also confusion in the Executive Branch of the United States Government concerning this continuing existence of the Colville.

In a memorandum dated September 28, 1939 from the acting Secretary of the Interior to the Commissioner of Indian Affairs which is found on page 41 of the petitioner's brief states in part, “In my opinion, the Act authorizing the sale of surplus land of the Colville Indian Reservation has the effect of redefining boundaries of the reservation.”

This demonstrates that the issue was not quite so clear as counsel for the petitioner and the Solicitor General would appear to contend at least on that --

Chief Justice Earl Warren: Mr. Way, could we -- could we sustain your judgment with -- without holding that this is not a reservation?

Do we have to find that this is not a reservation --

Mr. Stephen C. Way: I think it --

Chief Justice Earl Warren: -- in order to --

Mr. Stephen C. Way: -- could be sustained --

Chief Justice Earl Warren: -- sustain judgment?

Mr. Stephen C. Way: I think it could be if you should base your decision on the fact that Section 11 creates a reservation within the reservation and it must have been Congress' intention to separate townsites created under this authority then I think that it could be held that the remainder of the reservation still exists or that subject does not have to be touched.

Justice Felix Frankfurter: Could we hold or would it -- would it be rational or consonant with general direction of Indian law to hold that even though you -- even though authorization is made for the erection of townsites to be treated it for non-Indian, to be acquired by non-Indian and yet the territory within that townsites with the territory, within which that townsite exists is still within the quote “Indian territory” “Indian Country” could we do both for the -- is it necessary in order to conclude that this is not within Indian country to agree with you that it follow from agreeing with your self-contained townsites therefore, territory within which it existed no longer Indian country.

Mr. Stephen C. Way: It does seem to me Mr. Justice Frankfurter that it would be possible to say at one and the same time that we have here a reservation created for the future public interest and the same time, a reservation for the use of Indians.

The proposition is in Congress.

Justice Felix Frankfurter: Why do you say that if you duly regard as I'm sure you do the evolutionary policies of -- of withdrawing entirely from a policy of restrictive Indian withdrawal from responsibility and jurisdiction of the state which the regulation exists.

The whole tendency has been to absorb the Indians into the community of the United States.

That's the general proposition, you would agree with that, wouldn't you?

Now, therefore for that means the eventual breakup of reservation, I mean tomorrow but that's the direction.

Now, why can't you have these in Congress except your (Inaudible).

Why don't you have, why can't you have this -- we talked about a mixed economy, why there's a mixed Indian country?

Mr. Stephen C. Way: I presume you can have Mr. Justice Frankfurter those --

Justice Felix Frankfurter: Subject to the governing statute that there isn't surrender the (Inaudible) drawn over the horse of the Indian horse so that's all turn over to state jurisdiction.

That statute is still there, isn't it?

And you have to wipe out that it isn't perhaps I think the Chief Justice asked this question.

I think we do have to conclude this is not Indian country any longer, don't we?

Mr. Stephen C. Way: I maintained that that conclusion seems to follow from what --

Justice Felix Frankfurter: We can't just say it's so confused that in view of the confusion that both either jurisdiction to take hold.

We couldn't decide that, could you, in the phase of the statute or could we?

Mr. Stephen C. Way: Well, I think it -- it must presumed that Congress intended the results that is achieved its acts and the results and consequences of the Act of March 22, 1906, I think it must be interpreted that they so intended that the result would be the separation.

And I find that no other interpretation of the Act then a -- an intention upon the part of Congress to separate these lands and as a result, making a redefinition of the -- of the boundaries.

Now, taking a look at the Act of March 22, 1906, the Secretary -- the Act affects every piece of ground within the Colville.

It requires the Secretary to sell and dispose of all unreserved and unallotted lands, requires him to survey every piece of land on the Colville to classify the lands as to whether there are irrigable area or grazing and so forth.

And upon the completion of the classification to appraise the land as to their value and thereafter to make allotments of land to every member of the tribe having tribal related and they have to issue patents.

The Secretary is authorized to reserve lands for school, religious and other Indian purposes.

The proceeds of the sales are to be expended for the benefit of the Indians and for per capita payments, and as I have referred to earlier to reserve lands for townsite purposes for the future public interest.

This Act makes a very obviously fundamental and basic change to the Colville reservation.Lands formally devoted to the use and occupancy of Indians are now and have become lands devoted to the use and occupancy of non-Indians.

How then can the visitation upon these lands of such a fundamental transformation by the force and effect of this Act?

Justice John M. Harlan: Can I ask you question?

Mr. Stephen C. Way: -- enable --

Justice John M. Harlan: -- I didn't mean to interrupt you, you finish your sentence.

I want to ask you a question only when you're through.

Mr. Stephen C. Way: Well, the -- how can this transformation of the lands by the force of this Act enable the lands to retain their character as Indian reservation lands especially in the absence of a congressional definition in the criminal laws and convincing such a change as it's found here.

Justice John M. Harlan: The question I want to ask you is whether the Act of 1906 which I think you're referring, it's a very long and I haven't read it, does that undertake to define new boundaries of the Indian territory?

Mr. Stephen C. Way: Not in specific language --

Justice John M. Harlan: In specific terms, in other words, the essence of your argument is that when you add all these together, it is as if Congress had said from hereafter the boundaries of the Indian territory what remains will be doesn't so which would exclude East Omak, is that it?

Mr. Stephen C. Way: Yes.

Justice John M. Harlan: That's the essence of your argument?

Mr. Stephen C. Way: Yes sir.

Justice John M. Harlan: But there's nothing expressed in the Act that undertakes to do that.

Mr. Stephen C. Way: There is no specific portion of it redefining geographically --

Justice John M. Harlan: Yes.

Mr. Stephen C. Way: -- new boundaries.

Justice Hugo L. Black: I -- I'm a little confused because it seems to me your state Supreme Court decided the case on a different ground, am I wrong with that?

The last paragraph said, what is still known as the South Half or the diminished Colville Indian Reservation is no longer an Indian reservation by virtue of the act of Congress and president of the United States by a proclamation restored all of the South Half or diminished Colville Indian Reservation to the public domain subject only to the reservation and allotment of lands in several to it to the individual Indians.

I understood that you -- your argument is based on the fact that there's a certain part of the margin of this reservation that is not -- that have been excluded from the reservation that I understand your court to have held that there is no reservation at all, am I wrong in that?

Mr. Stephen C. Way: The decision of the Washington Supreme Court does hold as I understand it that the Act of March 22, 1906 diminished the reservation to the extent with the exception of those lands reserved for Indian purposes and allotments and severalty to the Indians.

Now, I --

Justice Hugo L. Black: I do not read it as merely saying it's diminished but it's saying there's no longer exist but even if that is true what you say is true it certainly have as the most.

That the only part of the Indian reservation left that 148 or 342,000 acres which had not been allotted, which had not been sold to the public and that none of that was a part of the reservation.

That's what your what you're holding, wasn't it?

Mr. Stephen C. Way: Yes sir, Judge Wicks appear to hold that way.

The --

Justice Hugo L. Black: He didn't go on the ground you are arguing to us, that it's just as marginal cost that he did hold that there are islands within this area, that was not part of the reservation?

Mr. Stephen C. Way: I am --

Justice Hugo L. Black: -- am I wrong --

Mr. Stephen C. Way: -- trying to take it from two -- in two -- two directions.

One, that the Act itself had the effect of diminishing the reservation subject only to those lands reserved for the exclusive use of the Colville Indian Tribes and the lands that which were allotted.

And secondly, that in any event, the creation of this reservation by the Secretary of the Interior for the future public interest in which this reservation of the townsite of Omak, within which the crime was committed in any event was a creation of another reservation for the future public interest and by that alone, a separation of the situs of this crime from the reservation.

I think attacked two ways.

Justice Hugo L. Black: Some years ago, when I first came on the Court, when I knew less than possible about Indian reservation than I do now, I recall it we had a case from Nevada where they were just one or two or three little lots down there and then was arrested and tried for selling liquor but the question was whether they're Indian country.

As I recall it, the Court held unanimously that -- that was Indian country.

I don't see that case cited.

Do you know what that case that was?

I should know --

Mr. Stephen C. Way: Well, no but I can recall the -- (Voice Overlap) --

Justice Hugo L. Black: -- but I can't (Voice Overlap) --

Mr. Stephen C. Way: -- which I remember the Ninth Circuit Court called 49 bottles of sour mash whisky which sounds to be --

Justice Hugo L. Black: I forgot whether it's 49, I meant it was.

Mr. Stephen C. Way: Sounds to be that sort of case but I didn't think it was appropriate for the reasons it was involved the Indian liquor laws and the definition at that time was substantially different than what is found in 1151.

Justice Hugo L. Black: Has it been changed now that the general -- that idea of Indian country?

Mr. Stephen C. Way: The Indian country definition there I thought was more of the creation by this Court rather than -- now, it's defined by statute where (Voice Overlap) --

Justice Hugo L. Black: I don't think so because I didn't know enough to create one.

I thought I'm following what the Court has held before that time.

Mr. Stephen C. Way: I thank you.

Chief Justice Earl Warren: May I ask you one -- one question, Mr. Way?

In this portion of the reservation or what was the reservation that you claimed the State has criminal jurisdiction of, does the State assumed all of the governmental responsibilities over the Indians, to supply education, to supply the health -- health services and fire and police and all those other things that go with governmental responsibility or -- or is it just seeking here to exercise criminal jurisdiction?

Mr. Stephen C. Way: Within the town of East Omak which is apart of the town of Omak itself --

Chief Justice Earl Warren: Yes.

Mr. Stephen C. Way: -- the incorporated town.

Chief Justice Earl Warren: Yes.

Mr. Stephen C. Way: All of the services are provided which are provided to the persons who live on the other side of the realm.

Chief Justice Earl Warren: On the west side?

Mr. Stephen C. Way: On the west side.

Chief Justice Earl Warren: That's not of the --

Mr. Stephen C. Way: That's not --

Chief Justice Earl Warren: -- out of reservation if there is reservation?

Mr. Stephen C. Way: Yes.

All the fire protection, police protection, there is a public school, the public park is in East Omak, all of the services which the people on the other side of river get also are given to the people who reside in East Omak.

Chief Justice Earl Warren: By the state?

Mr. Stephen C. Way: By the municipality of Omak.

Chief Justice Earl Warren: Yes.

Mr. Wilkinson.

Rebuttal of Glen A. Wilkinson

Mr. Glen A. Wilkinson: If the Court please.

As I understand Mr. Way's addressed during the argument it is this, the Secretary of the Interior after his proclamation of 1916 which he issued pursuant to the Act of 1906 set aside the townsite of East Omak and that by doing so, he redefined and excluded the townsite of East Omak from the Colville Reservation.

First, that's not possible without Act of Congress as this Court itself has held not even this Court could redefine the reservation in that manner.

Now, there are principles in this field where you seem to be going one way at one time, in one way in another.

But I just like to go briefly through Section 1151 and demonstrate to this Court the Congress when finally amended this Act knew precisely what it was doing.

Justice Hugo L. Black: What was the date of the amendment, Mr. Wilkinson?

Mr. Glen A. Wilkinson: The date of the amendment which includes the phrase notwithstanding the issuance of any patent was in 1948.

And that amendment was recommended by the Department of the Interior as you can see from 61 Interior decisions 298, in 1942 when it was precisely to meet this situation.

Justice Hugo L. Black: May I ask you -- disturb you before you go about going with that.

I think it helped me understand it better.

You understand the basis on which the state Supreme Court reads its conclusion that this was not Indian country?

Mr. Glen A. Wilkinson: As I understand it and there's a serious factual error in that opinion which I believe makes it difficult to understand.

You alluded to Mr. Justice when you mentioned their phraseology South Half of the diminished reservation.

That has no meaning and indicates to me only that they were confused with the term “South Half” and “Diminished”.

Actually those terms are synonymous and they both referred to what we've shown in our sketch in Appendix B as the diminished reservation.

In the whole history of this, except for the two opinions that Washington Supreme Court nowhere is their phrase South Half of the diminished reservation.

Now, as I understand that opinion, they say that the act of issuance of fee patent to non-Indians acts to exclude those tracks from within the outer boundaries of the reservation and that those particular tracks are therefore no longer Indian country.

And I say that's contrary to the clear language, intention, and purpose of Section 1151.

Justice Felix Frankfurter: Before you proceed on the argument on which you've been embarked so I do not want to interrupt you.But will you absorb this difficulty, this question of mine.

I was a little surprised that something -- something raising a question that the Secretary of the Interior could then track what is within Indian country by any issue of any patent but assume that that is so, assume he could do that, assume it's the way the argument prevails, and it was done could the Amendment of 1948, the Negro Act can then undo what he purported to do lessen your strive, would you take that?

Mr. Glen A. Wilkinson: Your Honor, I'm not certain but I would have to express some doubt whether it could be retroactive.

But I think that even taking the cases and the definition which was then in both governing the 10 major federal crimes that those tracks would have been within the limits of Indian reservations which was the language in the law at that time and that it would still be exclusive federal jurisdiction.

But I would like to go on now very briefly if I may just go through the Section 1151 and reminds the Court where all of the phrases in this come from.

First, as I start to indicate, the 1948 Amendment which is the language in Section 8 notwithstanding the issuance of any patent was adopted in 1948 was recommended to the Attorney General by the Department of the Interior in 1942 and it eventually got to Congress and it was enacted and included within this Section for the specific purpose of covering the situation like we have here.

The Solicitor of the Department of the Interior and others had said that if we don't have all inclusive boundaries surround an area of Indian country, it means the law enforcement officers are going to have to carry track books around where they find out whether this man's patent is in fee or just what the situation is.

To make it crystal clear that all area within the exterior boundaries of reservation was Indian country, Congress included this.

Now, the phrase “rights of way running through the reservation” which follows that was 1932 Amendment by Congress.

Nothing more than the codification to get around to this Court's ruling in the Clairmont case in 225 U.S. where Indian trip -- Indian liquor laws were involved.

The man was arrested on a right of way, railroad right of way where they have a fee patent.

This Court said that was no longer exclusive federal jurisdiction.

The subsection (c) of Section 1151 is nothing more than a codification of United States, Pelican -- against Pelican 232 U.S. which involved the North Half of this precise reservation and where this Court decided that was on an Indian trust allotment that that was still federal jurisdiction.

The rest of the North Half became state jurisdiction and in substance if the Court say -- the Court please, an answer to one question, it's my opinion that this Court must decide whether the situs of the crime within the townsite of East Omak was Indian country.

If it was Indian country, the petitioner has been deprived of due process.

He is being held by ruling of a court which had no jurisdiction.

Justice Hugo L. Black: May I ask you, do either one that you show whether the Federal Government has been prosecuting crimes committed in that town before this?

Mr. Glen A. Wilkinson: I can't point to any Your Honor but I'm positive in my own mind that is happening.

And certainly, you see from our brief that I think about page 20 that the State has this claim or the Supreme Court has ruled that the state courts have no jurisdiction or the Yakima reservation which is situation identical with Colville.

Thank you.