KEEBLE v. UNITED STATES

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Argument of Mark V. Meierhenry

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-5323, Keeble against the United States.

Mr. Meierhenry you may proceed whenever you are ready.

Mr. Mark V. Meierhenry: Mr. Chief Justice, may it please the Court.

This case comes to the Supreme Court from the Eighth Circuit Court of Appeals which issued a split decision, affirming Judge Neckel of the District of South Dakota.

The facts in this case are basically that this crime was committed upon an Indian reservation in the State of South Dakota, the Crow Creek Indian reservation, by one Indian against another Indian.

The indictment was brought under 18 U.S.C. 1153.

There was a conviction had on this crime.

During the trial of the case, the defense requested the lesser included offense instruction, that was not given and the Supreme Court on December 4th of year past, granted certiorari on the question of whether the District Court’s refusal to give that lesser included defense instruction under 18 U.S.C. 1153 violated the Fifth Amendment due process guarantee.

Now the lesser included defense instruction that was requested was the crime of assault to the major crime of assault with intent to do a great bodily injury.

The defendant in this case has two basic contentions.

Number one, that the Act of 1885 intended that Indians be tried in the same manner and in the same courts as other persons committing the same crimes and the second is, that if the petitioner’s contention that this is incorrect and Congress did not intend the jurisdiction be present to convict under lesser included offense instructions, then 18 U.S.C. as applied, violates due process because a lesser included offense instruction is part of the fundamentally fair trial and Rule 31 (c) of the Federal Rules of Criminal Procedure so direct.

Before I launch into the main argument, I would like to point out a correction as I see it in the government’s brief and that is argument 2, pages 19 to 23, and the petitioner’s view of that is not the state of the law at the present time.

They speak in their brief of a narrow class of cases which would lead me to believe they think is 13 major crimes.

This is not the state of the law in Indian reservations in the United States.

The general laws of the United States apply except and 18 U.S.C. 1152 points this out, “if the crime is one Indian against another Indian, if there has been punishment under tribal law and number three, if the treaty rights control this particular point and a case cited in the government’s brief points this out which is the Menominee Tribe versus United States which is a fishing right under treaty and which continues.

Now an example of this is a case which is not cited in any brief, United States versus Berlin, 441 F.2d 1199 and this Court denied cert in that case.

That was forgery and what we are talking about here when I am talking about the general laws in the United States is that the Assimilative Crimes Act applies to Indians.

That case so held that, involved the conviction out of Montana for forgery under the state statute.

An example of this right now is the occurrences which are in news, the Wounded Knee.

I have read the indictments against some of these people.

It is under the Assimilative Crimes Act, it's for violations of postal regulations, involving postal things which the Wounded Knee Trading Post is also a post office, so the assimilated crimes act does apply.

Now the important thing about that in this case is under the Assimilative Crimes Act, an Indian would get a lesser included offense instruction.

Only when you are talking about the 13 major crimes, does he not get a lesser included offense instruction, and as the government talks about this clear pattern, within the 13 there is one that there is a lesser included offense instruction, included within which is larceny and that would be the common thing of petty larceny, larceny under $100.00 which is included therein.

Now then the jurisdictional part as the Court is aware, started with Crow Dog which is in 1883 said that the United States government has no jurisdiction over crimes by one Indian against another Indian on an Indian reservation.

Out of that decision by the Supreme Court, the Act of March 3rd, 1885 set up the jurisdictional scheme that we now have on Indian reservations.

That said within a territory, which South Dakota was at that time, within a territory the laws of the territory applied to all persons, Indian and white alike, without any thought of an Indian reservation.

Therefore, between that dates 1885 and 1889 in the territory of Dakota, an Indian would get a lesser included offense instruction.

Upon South Dakota becoming a state in 1889, Indians washed this right because the second part of the Act of 1885 took effect which said that within a state if it happened within the confines of an Indian reservation Federal Law applied, which of that kind there were seven major crimes defined by Federal Law.

There are since been six added all defined by State Law.

Now within that reservation or within that four-year period, an Indian was given lesser included offense instruction.

1889, the present scheme came up and ever since then all the courts have held and I’m the first to admit that the case law and the petitioner's side is minuscule.

No Court has allowed without being reversed lesser included offense instructions.

However, the petitioner would point out that on page 10 of our brief the totality of two statutes now re-codified must be look at.

They are 18 U.S.C. 1153 and 18 U.S.C. 3242.

Justice William H. Rehnquist: Mr. Meierhenry, let me go back just a minute in your argument.

You say that no court ever allowed it without being reversed.

Does the government occasionally asked for a lesser included offense instruction as well as the defendant?

Mr. Mark V. Meierhenry: Yes, Your Honor.

Close reading, in fact the government decided the case United States versus Jacobs, close reading of that case reveals that it was the government in that case that wished to have the lesser included offense instruction, as I remember it was Rape and Carnal knowledge or something of that matter, but they have in the past, yes.

Justice Harry A. Blackmun: Mr. Meierhenry, you are not attacking the statute on constitutional grounds, are you?

Mr. Mark V. Meierhenry: Your Honor, I am if, the first point, if this Court should find that I am incorrect and there is no jurisdiction to give a lesser included offense instructions then it is the petitioner's contention that 18 U.S.C. 1153 as applied, meaning not giving a lesser included offense instruction, it violates due process.

So if the Court should rule against me on point one then I would contend that it violates the due process.

Justice Harry A. Blackmun: I wonder why you don’t attack it constitutionally head on.

Wouldn’t your client be better off if you could knock the statute out?

Mr. Mark V. Meierhenry: Yes, Your Honor.

As far as the trial of this case, either way, if either point is correct, I believe it would have to be remanded because there was no lesser included offense instruction given.

Justice Byron R. White: But isn’t it what could be a violation for due process only because it denies something in the equal protection?

Mr. Mark V. Meierhenry: Yes, Your Honor on the due process --

Justice Byron R. White: And otherwise it’s not -- it's just kind of treat some people different?

Mr. Mark V. Meierhenry: Yes, Your Honor and as I’ll point out again on the due process part, the government cites at very recent case.

Justice Byron R. White: Well if it is, would that be the basis for your due process argument?

Mr. Mark V. Meierhenry: My basis is that an Indian person being United States citizen is treated differently that they have --

Justice Byron R. White: It is the federal equal protection and due process?

Mr. Mark V. Meierhenry: Yes Your Honor.

Justice William H. Rehnquist: You don’t claim any infirmity in the statute other than if it is construed to preclude the lesser included offense instruction?

Mr. Mark V. Meierhenry: My view Your Honor is that, that if this Court agrees with me on point one and said that there is jurisdiction and you read the statute this original Act of 1885, saying that when Congress wrote that, saying that Indians would be tried in the same manner in the same courts in effect like everyone else, if you agree on that point, we may not ever get to the due process part of in this particular case, looking at this particular case.

It may come up later but the Court could not decide that issue and still reverse and remand this case.

Now on the due process part Your Honors what I’m contending is that this is a racial classification, the government --

Justice Byron R. White: There’s two ways of hearing it, isn’t there?

One way is to have saying that the lesser included defense instructions available in this case, the other way that this is available in this case?

Mr. Mark V. Meierhenry: That is true Your Honor, as this is Court is held in Sansone versus United States they talk about it as an entitlement and the Federal Courts have always or for sometime ruled that it is there, not be given.

Justice Byron R. White: That isn't an equal protection, that's a substitute --

Mr. Mark V. Meierhenry: That would be a substitute, Your Honor.

On a due process part --

Justice William J. Brennan: You mean the substitute because of the rule?

Mr. Mark V. Meierhenry: Well, I say that there’s been a violation of due process for two reasons.

Justice William J. Brennan: Well can you argue that the 31 (c) under the rule entitles you to instruction anyway?

Mr. Mark V. Meierhenry: Yes, I have in my brief Your Honor --

Justice William J. Brennan: And then you say, and then if it’s not to be certainly on its face, it would appear to entitle you to it, wouldn’t it?

If you say it’s not for whatever reason because he’s an Indian then it would be unconstitutional?

Mr. Mark V. Meierhenry: Because it is a racial classification, and as the government points out that the short answer to my contention is that the clause of Section 3242 to which petitioner points, simply provides that ordinary trial procedures apply in Indian cases is exactly what we’re contending here.

Rule 31 (c) which is a statute it says that all persons must be given a lesser included offense instruction, but they are not given one here.

Now the government points out and we would say that the Due Process part of this is more akin to McLaughlin versus Florida.

They point out in their brief at page 23, they cite the recent case of McGinnis versus Royster, which was decided by this case on February 21, 1973.

They cite language in their brief, but they don’t cite the start of the next paragraph which is the most important part of the case.

“When classifications do not call for strict judicial certainty, this is certainly the only approach consistent with proper judicial regards for the judgment of legislative branch.”

My reading of this is that this Court did not deal that this case, the facts which involved good time under paroles and pardons, needed strict judicial scrutiny.

All of the cases McLaughlin versus Florida and the rest talk about racial classifications as having that very strict judicial scrutiny and so the cases that they have cited here are not on point.

This Court in Weber versus Aetna Casualty, decided in 1972, has suggested a test, as a suggestive test that where you have personal rights which we’re contending that the right to a lesser include offense in this case does is a personal right, there’s a dual inquiry.

What legitimate interest does the classification promote, and what fundamental personal rights might the classification involve or endanger?

Now the Eighth Circuit below in its split opinion said that tribal sovereignty is the thing that must be protected, and I might point out that this time that this tribe, Crow Creek Tribe is not an Indian reorganization Act tribe.

It operates under the code of Indian offenses which is found in CFR 11.1 and following is to my knowledge there are no tribal codes at all.

It’s all out of the code of federal regulations, so at least to the Crow Creek Tribe where this happened, the tribal sovereignty is questionable at least to decide this case on that.

But the fundamental personal rights that are endangered of Francis Keeble as an Indian person compared to other Indian citizens tried in federal court, it is his contention that he need not carry with him the tribe that tried as an individual in the courts of the United States, he should be tried as individual and they should be given all those protections, because if he is not given a lesser included offense instruction, Rule 31 (c) is violative of that statutory protection.

He also, as O’connor versus New Jersey pointed out in page 21 of our brief, he losses the right to have the jury decide the degree of crime as well as whether, the crime itself was committed and this to me involves the province of the jury that the jury is lost one element of deciding and they are the judges of the facts.

However, they are ruled by just those instructions given to them by the court.

But there’s another thing it’s probably more important, and I found this in the trial of these type of cases as the petitioner has lost the fact that he can plea bargain.

Now this Court in Santobello versus New York said that this is an essential component of the administration of justice.

Now he can certainly plea bargain in the sense of how many years and things like that, but what about the difference between a greater offense and a lesser offense.

This does not come in to play.

The government contends that this is a fair and rational classification yet three weeks ago in a case that I tried, there were two major crimes committed, larceny and burglary, because larceny is one of the original seven crimes and it is in the statute he got, this fellow got a lesser included offense instruction on larceny, but he didn’t on burglary because they said there’s no jurisdiction.

Now here’s two felonies same occurrence on, one point he gets a lesser included offense instructions for which he was convicted and on the other one he doesn’t, he doesn’t get a lesser included offense instruction.

The government would argue that the United States of America never intended for him to get one, yet they’ve been careful when they passed the Act back in 1885 to add that Indian persons were to be tried in the same manner as all other persons.

Now, the government further contends that this being a fair and rational classification is that only in effect 12 crimes that an Indian maybe charged with and should not get lesser included offense instructions.

As I pointed out the Assimilative Crime Act, which is in effect the state law applied through the federal government, those apply on an Indian reservation unless those three things as I’ve mentioned 18 U.S.C. 52 excludes which is Indian against Indian which is if he is been punished by the local law, the tribe and if there is a specific treaty regulation on this.

Justice Potter Stewart: And in this case which one of those three was it, Indian against Indian?

Mr. Mark V. Meierhenry: It was Indian against Indian.

The --

Justice Potter Stewart: And that’s the only reason in this case, that this case was under the Assimilative Crime Act that you’re telling us?

Mr. Mark V. Meierhenry: Well, the wording in 18 U.S.C. 1153, Mr. Justice is, they have changed it and it is Indian or any other person.

So if it would’ve been a White man, if the petitioner would’ve been white, every other fact the same, he would’ve got a lesser included offense instruction.

Justice Potter Stewart: Under the Assimilative Crimes Act, because he wouldn't -- here this 1153 applies only to an Indian defendant?

Mr. Mark V. Meierhenry: Right.

Justice Potter Stewart: When the man charged is an Indian?

Mr. Mark V. Meierhenry: That is correct Your Honor.

Justice Harry A. Blackmun: Mr. Meierhenry, in the government’s brief reference is made to the federal statute having to do with assault upon a federal officer in the performance of his duties, 18 U.S.C. 111 and the suggestion is that this is comparable and that there no lesser included offense for simple assault is available to the defendant.

Do you have any comment about that?

Mr. Mark V. Meierhenry: Yes, I do Your Honor.

Number one applying the facts to this case, there is a case on this where the crime that they speak of is discussed.

It’s Walks On Top versus the United States which is 372 F.2d 422.

In that case, the man assaulted was an Indian either Bureau of Indian Affairs or special officer or something, he was an Indian who was also an officer of the United States.

He was assaulted. He was charged under the general law, the Indian who assaulted the police officer, was charged under the general laws of the United States, assault upon a federal officer.

He was also given a lesser included offense instruction by the way, but the point out what they’re getting at is the federal connection, I assume.

Now, they’re saying that number one, there would be no lesser included offense.

Number one we have to assume and they don’t make this clear there wasn’t on an Indian reservation or of course their example is given is incorrect because then the Assimilative Crimes Act would apply, but there the connection is this, the federal connection is that he’s a federal officer.

In our case, the federal connection is that its territorial, it’s on land and that is the connection.

So the examples that they give is that it is not always in all or nothing situation.

The federal jurisdiction here we have to assume for their example, although they don’t make it clear it’s off of reservation.

Otherwise, he would be given a lesser included offense instruction under this very factual situation that he talks about now.

And on the bank robbers which is the other example that they put in their brief, again we’re assuming and they don’t make this clear that it’s not in on an Indian reservation, all we’re saying is that all bank robbers are treated the same and my case involves a situation where an Indian isn’t treated equally as all other persons.

If this were any non-Indian, he would’ve been given a lesser included offense instruction in our factual situation, in the case as bank robbery, all bank robberies are treated equally and if there is no jurisdiction for a lesser included offense instruction then all persons, no matter what race, they are treated equally.

And we must remember, I think that Francis Keeble is an Indian has no choice, Celestine versus the United States decided that which is decided as I recall on the last page of my brief.

At birth he can’t make an election.

He can’t say “I now wish to be tried as a White man and be a White man.”

There are two cases, one says the white man born white can never be Indian, and an Indian person of Indian decent can never be treated as a White man under these acts, so that there is no choice left open.

He is treated on equally.

He is not given a lesser included offense instruction.

Justice Byron R. White: Arguably in his advantage?

Mr. Mark V. Meierhenry: It could’ve been You Honor.

I think the --

Justice Byron R. White: It’s only a hindsight, isn’t it?

Mr. Mark V. Meierhenry: Well, this is where the government starts arguing in their brief along that line that there’s --

Justice Byron R. White: As long as that (Inaudible)?

Mr. Mark V. Meierhenry: In this particular case, I don’t know Your Honor, because I cannot tell what --

Justice Byron R. White: You mean because you don’t know it’s unconstitutional?

Mr. Mark V. Meierhenry: No I’m saying it’s unconstitutional no matter what would’ve happened, but I’m saying that in this particular case, I don’t think that it would’ve been to his benefit or to his detriment not to have it.

All I’m saying is I think it violates the United States constitution --

Justice Byron R. White: To treat him differently, right?

Mr. Mark V. Meierhenry: -- to treat him differently.

We all know and I don’t think it’s within the purview of me as an advocate to --

Justice Byron R. White: Or you could say I suppose that this whole scheme of things splitting up whatever the 13 crimes that all are appropriate (Inaudible), is unconstitutional, because it does treat Indians different from others.

Mr. Mark V. Meierhenry: I say that the whole scheme could be unconstitutional.

Justice Byron R. White: Well, I would think a fortiori it would be at this stage?

Mr. Mark V. Meierhenry: Well perhaps it is.

I’m saying that well --

Justice Potter Stewart: But you could also argue if you didn’t --

Mr. Mark V. Meierhenry: Maybe 12, Your Honor.

Justice Potter Stewart: If we didn’t have this statute you’d be treating Indians differently because they’d be tried in tribal courts and other people would be tried in the United States District Courts?

Mr. Mark V. Meierhenry: If you did not have this statute?

Justice Potter Stewart: Yes, so it’s unconstitutional if you have it, it is unconstitutional if you don’t have it?

Mr. Mark V. Meierhenry: Well, in this particular case you would bounce from one federal jurisdiction into or one federal court into another, because we have a CFR court, which is the judges are federal government employee, the police officer is federal government employee, the jail is federal government, the food they feed the prisoners is federal government.

The only way you can put an Indian in jail in the Crow Creek Indian Reservation is if the federal government decides to do in effect because all the arms that are there are the federal government's.

Justice Potter Stewart: What if the charge here had been attempted assault?

Mr. Mark V. Meierhenry: Attempted assault would not be covered by the Major Crimes Act and would therefore be a tribal crime.

Justice Potter Stewart: So what’s CFR?

Mr. Mark V. Meierhenry: Code of Federal Regulations which is --

Justice Potter Stewart: But what kind of a court is the CFR court?

Mr. Mark V. Meierhenry: Well it’s a dubious court to say the least.

It’s by regulations of the Secretary of Interior.

Justice Byron R. White: But would this be the tribal court?

Mr. Mark V. Meierhenry: This is a tribal court in this factual situation.

Now sometimes, this doesn’t apply and this is where it’s confusing in the government’s brief.

This is a non-Indian Reorganization Act tribe.

It hasn’t assumed the lot of the element to self government.

This particular tribe as I pointed out in the appendix of page 3, 4, 15 is not IRA, non-Indian Reorganization Act.

The people on that reservation voted against it.

They decide not to have it.

Therefore, the Court is not the Crow Creek tribal court.

Justice Byron R. White: It’s a CFR court?

Mr. Mark V. Meierhenry: It’s a CFR, a court for a code of Indian offenses and I would like to point out --

Justice Byron R. White: It is like a treble denial -–

Mr. Mark V. Meierhenry: Well, the government says this is a fair and effective administration of justice.

This is what I’m questioning, I don’t agree.

One thing I want to point out too in this case is if you read the facts --

Justice Byron R. White: Well, you got reorganization act Indian, you got CFR Indians -–

Justice Potter Stewart: Yes, you got Indians.

Justice Byron R. White: If you are to just point at the Indians (Inaudible) Major Crimes Act?

Mr. Mark V. Meierhenry: And you’ve also got situations in states where there is state jurisdiction as well, there’s a number of them.

Justice Thurgood Marshall: Well in this particular petition that was subject to what kind of a tribal court?

Mr. Mark V. Meierhenry: It is Mr. Justice, it’s a court of Indian offenses, a federally subsidized court.

The tribal council or the legislative body of the tribe has passed to my knowledge no laws.

They use what the Secretary of Interior prescribes their laws to be.

If you’ll note in the facts of this case our man was brought in by a federal special agent.

He was charged with Section 11.49 of the Code of Federal Regulations for disturbing the peace, and as placed and there was a remand on this, this was another part of the case.

He was placed in jail on this federal misdemeanor charge until the FBI man could come out from Sioux Falls 200 miles away to investigate the felony charges.

So what we have and then --

Justice Thurgood Marshall: And then the tribe could change that and have their own trial court?

Mr. Mark V. Meierhenry: They could, if they so wish Your Honor.

Justice Thurgood Marshall: But if they don’t then they automatically get this or what?

Mr. Mark V. Meierhenry: Yes, this is to fill the void until a tribe decides it wants its own laws or its own code and it varies.

In South Dakota there are a number of Indian reservations.

I happen to live on Rosebud.

It is an Indian Reorganization Act tribe.

We deal in that tribal court with laws passed by the Rosebud Sioux Tribal Council.

And so therefore, it -- what the coding system is, we do not refer to this, but on Crow Creek you do because they have not adopted these laws.

Justice Thurgood Marshall: And who are the judges?

Mr. Mark V. Meierhenry: The judges are most commonly lay persons hired by the Department of Interior.

Once in a while if the tribe is large and the case load is large, a professional attorney will be hired, but usually a layman.

Justice Thurgood Marshall: What difference is that as it is today and what it was in 1880?

Mr. Mark V. Meierhenry: In some areas not a great deal, You Honor.

What we’re saying is another factor that involves here is forcing an Indian to be bounce back and forth which I know this Court’s held as between federal state as one thing, but here where we’ve got a code of federal regulations tribe, what the government wants us to do is go to Deadwood, South Dakota 280 miles, try the felony and then if there’s an acquittal, come back and face the tribal charge, whereas a non-Indian person no matter what his race could take care of all of it at once.

He could be given the lesser included offense, one day he’ll have his justice no matter what it be and an Indian defendant is again subjected as the government calls it a fair and rational classification of being bounced around like a tennis ball.

Justice William H. Rehnquist: Of course the non-Indian would be subject in some circumstances to trial in federal court in one city and state court in another city arising out of the same transaction which an Indian wouldn’t?

Mr. Mark V. Meierhenry: Yes, I recognize that.

No, I don’t recognize that.

Would say an Indian would not?

Justice William H. Rehnquist: Where -- which an Indian in this particular tribe situation would not be as I understand it.

Are any of the Indians on the Crow reservation subject to state criminal jurisdiction?

Mr. Mark V. Meierhenry: No except on certain sanitary regulations which is been -- which the United States government has given the jurisdiction to the state for certain things like --

Justice William O. Douglas: Where in the state is this reservation?

Mr. Mark V. Meierhenry: This state is south Pierre, South Dakota, approximately 60 miles.

It’s in the Lower Brule Reservation on either side of the area which the federal government built a dam on there.

Reservation is such been diminished it is right by which known as the Big Bend Dam on the Missouri River.

Justice William J. Brennan: And is Rosebud also --

Mr. Mark V. Meierhenry: East of --

Justice William J. Brennan: -- Rosebud in that area too?

Mr. Mark V. Meierhenry: It’s in Western South Dakota as well.

Justice Thurgood Marshall: Well, suppose on the site where this crime was committed there was a nonresident Indian from Washington and me from Washington and we committed a crime, would the Indian be tried any different from me than nonresident Indian?

Mr. Mark V. Meierhenry: No.

Through the Celestine case, an Indian is an Indian no matter what reservation he’s on.

If you try, if you committed one of the 13 major crimes --

Justice Thurgood Marshall: But, mines a nonresident.

Mr. Mark V. Meierhenry: Pardon me?

Justice Thurgood Marshall: It doesn’t apply to nonresident Indian?

Mr. Mark V. Meierhenry: All Indians, all Indians no matter where.

Justice Thurgood Marshall: So then if the two of us go out there and commit a crime, the Indian gets a different trail than the one I get?

Mr. Mark V. Meierhenry: Yes, you would be tried under the Assimilative Crimes Act because you’re non-Indian.

He would be tried under 18 U.S.C. 1153.

You would get a lesser included offense instruction, he would not.

Justice Thurgood Marshall: Well, you won’t mind if I ask the Solicitor General that same question, will you?

Mr. Mark V. Meierhenry: No sir.

Thank you, I reserve some time for rebuttal.

Chief Justice Warren E. Burger: Mr. Stone?

Argument of Richard B. Stone

Mr. Richard B. Stone: Thank you Mr. Chief Justice and may it please the Court.

The issue which this case presents is one of a broad range of issues arising in both the civil and criminal contexts which have required this Court and the lower federal courts to reconcile in some viable manner, the extremely complex conflicting elements of the status of tribal reservation Indians.

Justice William J. Brennan: Have you any idea how many cases we have this term Mr. Stone?

Mr. Richard B. Stone: I recognize there were countless this morning with Mr. Justice Brennan, I --

Justice William J. Brennan: As many of those as we’ve had three-judge court appeals.

Mr. Richard B. Stone: Indeed I understand that and it’s a terribly complex problem.

The conflicting elements at least as the relevant to this case in their basic form are quite well known I will not dwell on them.

On the one hand the reservation Indian has historically been regarded as a member of a separate sovereignty and although Congress within --

Justice Thurgood Marshall: How about the non-residents?

Do you agree with what he said that if an Indian and a non-Indian go out there that they get a different trial, when they commit the same crime?

Mr. Richard B. Stone: There’s no question Mr. Justice Marshall that they get a different trial with respect to the availability of a lesser included offense charge and it is that discrepancy which I claim to deal with in the course of this argument.

Justice Potter Stewart: On the other hand, on the other hand if the discrimination could work the other way, if --

Mr. Richard B. Stone: Indeed it could.

Justice Potter Stewart: -- if Justice Marshall and his Indian friend go out to Indian country and both commit the same crime if it is not a crime, if it is one of the 13 listed here.

Mr. Richard B. Stone: And then they cannot be tried in the federal court and are tried only in the tribal court.

Justice Potter Stewart: And yet Justice Marshall would be tried in the federal court?

Mr. Richard B. Stone: No.

Justice Potter Stewart: In the state court, that is.

Mr. Richard B. Stone: That’s right, there are --

Justice Potter Stewart: Well, under the federal court only there’s so many felony concepts.

Mr. Richard B. Stone: There are myriad of splits Mr. Justice Stewart, between the federal court, the state court and the tribal court and they do without question depend on racial categorizations, there’s no question on that.

Justice Potter Stewart: Right, of the defendant of the person charged?

Mr. Richard B. Stone: That's right and with the victim as well.

Justice Potter Stewart: And sometimes --

Mr. Richard B. Stone: And sometimes with respect to the victim and there is a myriad of very complicated jurisdictional allocations.

We deal here with a relatively simple one and I would like as much as possible to confine this inquiry.

I think it would be most useful to the relatively clear jurisdictional allocation in dispute here.

Justice Thurgood Marshall: But if the Indian resident break on it, all I have to do is say I got to drop an Indian blood then I get that, don't I?

Mr. Richard B. Stone: Well that’s a complicated question Mr. Justice Marshall.

You may conceivably and I do think there’s any reason to get into this case.

You may have to be, not only prove that you have a drop of any blood but more than that and you may have to prove that you’ve got this, the right kind of drop of blood and you member of this particular tribe that resides on this reservation.

But I think that those questions are much of the periphery of this particular inquiry which is quite important to focus on precisely what it is.

As I say, this concept that Indian sovereignty is limited to some extent within certain broad boundaries by Congress’s power to redefine and narrow the scope of Indian tribal sovereignty through the passage of legislation.

Nonetheless, the Court has consistently recognized for hundreds of years that tribal sovereignty springs from independent roots that it retains a life and force of its own and that its residual effects can only be eliminated through very explicit Congressional action, and it was on this basis that the Court decided in Ex parte Crow Dog at 109 U.S. that the federal courts had no jurisdiction, absent a specific statute over the murder of an Indian by another Indian on the reservation because Congress had never withdrawn the exclusive jurisdiction of a such an offense from the sovereign tribe.

And then again as recently as 1970 in the Kennelly case, the Court very strictly construed a federal statute, authorizing the tribes to see their civil jurisdiction over matters arising on the reservation and in short the Court has repeatedly emphasized that those aspects of tribal sovereignty of which Congress has not very explicitly withdrawn or still in full force.

On the other hand, and this is where the particular difficulty in this case arises, since 1924 all Indians, including those residing on reservations subject to the jurisdiction of the tribal government and tribal courts had been considered United States citizens who enjoy the same privileges and rights conferred by that status which other United States citizens enjoy.

The inherent conflict between these two elements of Indians status is obvious enough to the extent that the tribal Indian remains subject to the governmental authority of the sovereign tribal group to which he belongs.

He inevitably finds that merely because he is a tribal Indian, he enjoys certain privileges and incurs certain legal obligations which are not shared by other American citizens.

One example of this which we have alluded to already in this argument and which seems to me crucially relevant to an understanding of the particular discrepancy with respect to which petitioner complains here, is it the tribal Indian who commits a crime against another Indian on the reservation is punishable exclusively in the tribal court, unless the crime is one of those with respect to which Congress has specifically delegated jurisdiction to the federal or state courts as for example in the Major Crimes Act.

Though Congress has repeatedly found, as I shall discuss shortly, that the preservation of the tribal court system is of great benefit to reservation Indians, subjection to the tribal court's jurisdiction, appears to have elements in some cases of both comparative advantage and comparative at least theoretical disadvantage to the tribal Indian.

Aside for example from the comfort which he may derive for being judged by this tribal brothers in a proceeding that is meaningful and familiar to him and to his culture, the commentators appear to agree that he is likely to receive a considerably smaller penalty if he is convicted in the tribal court.

In this case for example the penalty which the tribal court imposed for the actions leading to the charge at issue here was 15 days incarceration essentially for public intoxication and a fine of $20.00.

On the other hand, the tribal court does not offer the panoply of procedural rights and protections which a non-Indian citizen would enjoy, if he were being tried for the same offense in a state or federal court.

Indeed prior to 1968, Congress imposed virtually no requirements whatsoever on the tribal courts and with minor exceptions the federal courts held that because of the continued concept of tribal sovereignty, this discrepancy did not offend the Constitution.

In 1968, as the Court knows, Congress passed the Indian Bill of Rights which imposed on the tribal courts at least a scalable version, the outlines of which had not yet been adjudicated of the rights enumerated in the first 10 amendments to the constitution, but that was presumably not by constitutional mandate, but part of Congress’s decision to slowly integrate the Indian tribal system into the concept of justice and inherent in rest of the country.

Indeed, the Indian Bill of Rights, we would suggest is representative of a pattern that has been very wisely followed in the reconciliation of the conflicting elements of the Indian status.

A few Federal Court of Appeals in years immediately prior to the passage of that act had indicated some impatience with the slow movement of tribal courts in the direction of affording traditional constitutional protections to criminal defendants and it had been suggested in at least one case that a proceeding in a tribal court might be reviewable in the federal courts on the ground that the tribal court was obligated to provide at least some constitutional procedure.

It’s rather awkward doctrine for a court to be applying because it applies a piecemeal with no ascertainable standard constitutional protections rather than applying it across the board.

But it was recognized even in that case that Congress is the appropriate body and is in a lesser awkward and more appropriate decision to determine the details of the plan by which tribal justice can be integrated into the American Constitutional system in a manner that preserves to the extent Congress deems desirable both to sovereign rights of the tribal government and the rights owed to Indians as citizens of United States.

And so Congress has repeatedly responded in all areas related to this case not with a mechanical across the board application of constitutional requirements on the tribal court system, but with the set of requirements which the Congress considers viable in terms of preserving the basic nature of those courts. Now, this case presents this Court with another closely related aspect of the problem of reconciling the status of Indians as citizens and their status as members of a separate sovereignty.

Chief Justice Warren E. Burger: Before you get into that Mr. Stone, I’m having trouble, some problem with the record trying to reconcile the charge with the statute.

Your friend’s statement of the case recites at page 3 that the petitioner was found guilty of assault with intent to inflict great bodily harm under 18 U.S. Code 1153.

Now, I turn to your brief page 2 and 1153 describes the crime as assault resulting in serious bodily injury.

So that the thrust of the one is intent and the thrust of the other is consequence.

Mr. Richard B. Stone: Yes, I have two --

Chief Justice Warren E. Burger: Now, can you clear that up for me?

Mr. Richard B. Stone: This is a certainly a problem Mr. Justice Burger, Mr. Chief Justice.

I don’t have a full answer to it.

It hasn’t been raised before and it is been accepted in this case and in other cases that these two offenses are sufficiently related so that the Major Crimes Act confers the jurisdiction under the South Dakota law to try for assault with intent to commit the crime.

I have two answers in mitigation of the very obvious objection that there may be an element required in the Major Crimes Act which is not required under South Dakota law to with their element of actual serious bodily damage and that would be the objection.

First of all, it is not at all clear that the offense in South Dakota of assault with intent to inflict great bodily harm is prosecuted in practice unless there is in fact a great bodily harm, and the other answer to that is in this case it is entirely undisputed on the record and I do not believe petitioner would dispute that the actual incident here resulted in great bodily harm.

I doubt that the federal government would have prosecuted had it not resulted in great bodily harm and I simply believe the theoretical possibility of a case in which there was no great bodily harm but perhaps a proof that there was an intent on successfully carried out to cause great bodily harm as an open question.

Chief Justice Warren E. Burger: But we do have a hiatus here between the statutory base, the allegation of the indictment, you of course concede that, don’t you?

Mr. Richard B. Stone: I’m sorry I don’t understand the Mr. Chief Justice.

Chief Justice Warren E. Burger: The discrepancy here, the statutory authority deals with assault with resulting in great bodily harm, serious bodily harm and the indictment was assault with intent?

Mr. Richard B. Stone: That’s right, because that is the way the state statute is defined but as I say, it is not at all clear that the state statute is ever applicable except where in fact the harm resulted.

Indeed, it’s an interesting it may work just the other way because they may well be great bodily harm which would satisfy the wording of 1153 --

Chief Justice Warren E. Burger: Without intent?

Mr. Richard B. Stone: -- without the requisite intent and it simply intend to cause assault at all might arguably be sufficient to carry forward even if no bodily harm were intended but great bodily harm resulted, but on the context of this case, I do not think the issue was raised, not only because it has been raised below but because everybody’s total agreement not only great bodily, but death as a result of this serious incidents.

Justice William O. Douglas: If resulted as I understand to make this over-exposure, lay out on the ground all night?

Mr. Richard B. Stone: Well, that’s disputed in the record but at least it was, it is undisputed that the victim walked out in pretty terrible shape, Mr. Justice Douglas.

Justice Potter Stewart: And died the next morning.

Mr. Richard B. Stone: And died the next morning and if there was some doubt whether he died of the injuries of over-exposure.

There was testimony in the record that he probably died of over-exposure, but there was other testimony that he had been very, very severely battered.

There was blood splattered all over the room in which he had been and I think no question that the event of great bodily harm came.

And I think this question that the Chief Justice quite aptly raises really ought to be -- I do not think it would arise because I doubt seriously there would be a prosecution, absent bodily harm, but if so I think that that problem should wait to a case in which the objection is properly raised and no great bodily harm was present.

Justice Byron R. White: He was tried for assaulting with intent, that’s what he was charged with, that was he was tried for?

Mr. Richard B. Stone: That’s right which adds it incidentally in element that is not necessarily present in the federal crime.

Justice Byron R. White: Oh, really?

Mr. Richard B. Stone: The intent to cause great bodily harm is not necessarily present in the federal list in 18 U.S.C. 1153, only the actual causing.

Now, clearly some type of intent is necessary.

Intent to commit a battery at all, but it isn’t clear that 18 U.S.C. 1153 would ever require that there be intent of actual great harm.

Justice William J. Brennan: You mean you have to show only assault resulting in bodily harm?

Mr. Richard B. Stone: Yes, that’s right, intent to assault which would include some sort of intent to commit the assault but not a specific intent resulting in great bodily harm.

Chief Justice Warren E. Burger: Well, I suppose an example of that would be if someone simply slapped the face of another person and that resulted in displacing or detaching a retina which is grave, you’d have that situation, wouldn’t you?

Mr. Richard B. Stone: You could, you could have that situation.

Chief Justice Warren E. Burger: You don’t think we need to worry about that?

Mr. Richard B. Stone: But I don’t think if it’s just not present in this case, excuse me?

Justice William H. Rehnquist: You think it because it’s a limited grant of certiorari?

Mr. Richard B. Stone: Well yes, because that raises a problem, Mr. Justice Rehnquist because the grant is worded in terms of the constitutional question and I suppose we can’t argue that some preliminary threshold statutory question cannot be considered here, that the Court need decide the constitutional question, absent some satisfactory determination of the threshold questions that would set that up for which reason we have not objected for example to the statutory argument that the lesser included defense charge is constructively provided in 18 U.S.C. 1153 which the petitioner raises.

Justice Byron R. White: Let’s assume that when he was indicted for something clearly not within the reach of the federal statute?

Mr. Richard B. Stone: Then he clearly would not properly have been tried in the federal court at all.

Justice Byron R. White: And don’t you think we have to decide whether this crime is within the framework of the federal statute?

Mr. Richard B. Stone: I think you do have to --

Justice Byron R. White: Well, how can we put it aside maybe for some other case?

Mr. Richard B. Stone: I think you only have to leave it for some other case where in fact, the element of great bodily harm is not present, Mr. Justice White.

My point, I understand what the Court’s difficulty is inherently, but I think it is a speculative difficulty.

There is no evidence that the government would ever attempt or that South Dakota Law would permit a --

Justice Byron R. White: What did the instruction say?

Was it a jury trial?

Mr. Richard B. Stone: Yes, it was a jury trial.

Justice Byron R. White: What did the instruction say?

Mr. Richard B. Stone: The instructions deal with the element of intent and do not specifically require a finding of actual harm --

Justice Byron R. White: (Inaudible)

Mr. Richard B. Stone: But that is because the sole defense raised that the trial was with respect to the issue of intent and it was admitted throughout the trial that great bodily harm had occurred.

It was never in question so I guess it wasn’t raised.

Justice Byron R. White: Well, I gather your argument is that the government had only to prove really to bring itself within the statute an assault and resulting bodily harm and that in fact you showed that the burden of proving intent to inflict and therefore he got a better break than he was entitled to on the statute?

Mr. Richard B. Stone: We wouldn’t necessarily say that he got a better break but that he was put to no advantage because the government proved with no possible rebuttal.

Justice Byron R. White: The only thing is one element at the time was never submitted in the jury?

Mr. Richard B. Stone: Well, I have no further answer to that, Mr. Justice White except for the fact I think a reading of this record and attention to both petitioners charged to himself, requested to charge himself and to the evidence presented would reveal no conceivable question about that and I recognize the difficulty of assuming a directed verdict type of assumption in the criminal context, but I think that the presence of great bodily harm is as conclusively present and undisputed in the context that this case as it could possibly be.

Justice Potter Stewart: And I thought that your footnote 2 on page 4 dealt with this question?

Mr. Richard B. Stone: Well, it deals with it by a citation, Mr. Justice Stewart of the Nordelo case which implies that when in a criminal context generally, the federal government incorporates a state definition of a crime that it really only incorporates the substantive definition and not necessarily the labels.

Justice Potter Stewart: Right.

Mr. Richard B. Stone: I have some question as to how far we can take that in this case to the extent that there really is an underlying substantive definitional problem.

We cited as I recall as a C cite and it is suggestive of a notion that I think it’s hard to bring too far, except that in the context of this case, the element is so clearly present that we really are I think only talking about by this --

Justice Potter Stewart: You cite Nordelo and (Inaudible)?

Mr. Richard B. Stone: That’s right.

Justice Potter Stewart: And this question would involve the construing the meaning of the last full paragraph of 18 U.S.C. 1153, but I thought this issue isn’t here since you point out there’s no question about the fact of great bodily harm?

Mr. Richard B. Stone: I think that is right, but I have some, at least slight reluctance to answer to I believe to Mr. Justice White’s suggestion that the element, there’s no question about it, but then it wasn’t submitted to the jury and I recognize that it is difficult to.

Justice Byron R. White: And the judge explained to the jury that he wasn’t charged with beating him to death or even cause him serious?

Mr. Richard B. Stone: I don’t think he charges that he wasn't -- he doesn’t specifically say that he is not charged with causing serious injuries as he isn’t charged with intent to kill.

Justice Byron R. White: Your contention there is no intention and no contest by the government that the beating in question is ultimate death of the victim.

In fact, there is no medical testimony to the effect that the death was (Inaudible).

But then it is not charged as beating but only with beatings of death was intent, charged only with intent to beat or to beat with intent to inflict great bodily harm?

Mr. Richard B. Stone: Well, I would submit with all deference that I have no further response to that question except that I think that the difficulty which is raised here might be a difficulty in another, but it is not a difficulty in this case and ought not to deter this Court from reaching the merits of the underlying issue that’s presented.

As I say, this case presents the Court with an isolated aspect of the problem of reconciling the status of Indians as citizens and as members of separate sovereignty.

The problem arises because Congress has determined that a tribal Indian who commits certain major crimes against another Indian on a reservation is tried in the same manner subject to the same penalty as a non-Indian committing the identical offense and yet on the other hand, Congress has determined that with respect to all other crimes not listed in the Major Crimes Act, a tribal Indian remains subject exclusively to the jurisdiction of the tribal court.

Even though admittedly his non-Indian fellow citizen who commits the identical offense in the same place goes through a very different procedure and is subject to the very different law applicable in federal court.

I take that petitioner would not deny the accuracy of his description.

He is already confirmed it, nor would he question, he does not appear to question of the constitutionality of the overall jurisdictional scheme even though it creates a significant procedural and substantive discrepancy between tribal Indians and other persons.

Indeed, the overall scheme has been confirmed too many times by this Court to lend credence to an answer that mere categorization of an Indian in a federal statute is unconstitutional.

Rather he attacks one very specific aspect of this discrepancy which results inevitably from the Congressional allocation of jurisdiction between the federal and tribal courts in this area.

Simply stated, if an Indian is on trial in the federal court for one of the offenses enumerated in the Major Crimes Act, neither her nor the government is entitled to ask the court for a lesser included offense charge even if otherwise appropriate, unless the lesser included offense happens to be one of the other offenses specifically enumerated in the Major Crimes Act because the federal court has no jurisdiction to try and punish an Indian for commissions of any offense not specifically enumerated in the Act.

And with respect to a non-Indian with the same situation, of course, it may be appropriate and probably would have been appropriate here to instruct the jury that if it finds him innocent of the major offense charged, it may still find him guilty of a lesser included offense.

Now, there are essentially two arguments raised. One, petitioner argues that alternatively that the Major Crimes Act itself allows the lesser included offense charge.

I think that with my time running short, I shall leave that statutory argument essentially to the brief in which we answer it fully.

Basically, it seems to me it is somewhat unusual for the government to be in the position of arguing a strict construction in non-presence of a federal crime against a criminal defendant who argues that something is a federal crime, but we have I think tried our best to bind ourselves by the very strict rule of statutory construction applicable in a criminal context.

Generally, the crimes ought not to be construed and that a federal crime should not be read by implication into a very specifically worded statute.

I think that that presumption applies with double force.

In this context where Congress has specifically and repeatedly said that the jurisdiction of the tribal sovereignty can be only be eliminated by very specific Congressional mandate and indeed Congress has tiptoed step by step by step in amending the Major Crimes Act to include offenses on a very carefully considered basis and it would be highly contrary to the history of that act and its amendments to conclude that any crime is created by mere implication.

So I would, with the Court’s permission like to focus on the constitutional problem.

Justice Thurgood Marshall: All of this tiptoeing had nothing to do with Indians at all?

Mr. Richard B. Stone: Mr. Justice Marshall, I’m sorry but I don’t understand that?

Justice Thurgood Marshall: I said they tiptoed in this assimilative statute --

Mr. Richard B. Stone: No, no not the assimilative statute, in the Major Crimes Act.

They went step-by-step with respect to which offenses at each point would be considered serious enough so that --

Justice Thurgood Marshall: Well then I ask the question, were the Indians considered on the assimilated crime statute?

Mr. Richard B. Stone: I’m sorry I don’t understand the question?

Justice Thurgood Marshall: Well, was this type of case considered on when you have the assimilated crimes statute which allows the states to move, right?

Was the Indian question brought up in Congress during that consideration those statutes, the assimilative crime statutes?

Mr. Richard B. Stone: Well, I assume that what those statutes were enacted with regard to the question of what jurisdiction should be left in what places and to the extent that they involved Indians, they involved consideration of what crime should be left to the Indian courts.

And the essential conclusion was as reflected in the statutory scheme that what should be left at the tribal courts are crimes between Indians, by and against Indians committed on reservations with the exception of certain major crimes with respect to which Congress felt --

Justice Thurgood Marshall: That’s what I was talking about, the major --

Mr. Richard B. Stone: That’s right.

With respect to each Congress felt that it was -- the crimes were so major that the interest in severe enough punishment, the assurance of severe punishment of those major crimes was sufficient to withdraw jurisdiction or to withdraw exclusive jurisdiction from the tribal courts for any of those offenses.

But with respect to all other crimes, it is quite clear from the history of the Act that Congress very much intended that for the same reasons that it always left these to the tribal courts, they were to be left at this point to the tribal courts.

Therefore, in suggesting that this issue should be considered in the context of the entire statutory scheme by which Congress has attempted to reconcile the conflicting elements of tribal Indian status, a scheme which quite explicitly results in some situations in disparate legal treatment of persons merely on the ground that they are not Indians.

We think that the rationale is that of the entire scheme essentially governing the tribal court system and the allocation of jurisdiction.

This is one minor example of it but the entire scheme is a preservation of the sovereignty of tribal courts at least with respect to offenses not enumerated in the Major Crimes Act between and against -- by and against Indians committed on reservations.

And Congress as including in its passage of the Indian Civil Rights Act of 1968, the Indian Bill of Rights in 1968, Congress has studied carefully this question and has concluded that the preservation of the tribal court system is essentially of great benefit to Indians that field studies and commentators have shown that many Indians feel that they get a more a fair and more equitable treatment.

Even thought they don’t get the whole panoply of federal procedures and federal constitutional safeguards.

They feel that the penalties are more lenient that the justice is more in harmony with their cultural concept of justice.

It is essentially --

Justice William J. Brennan: Is this notion of --

Mr. Richard B. Stone: -- Restitution rather than on retribution and --

Justice William J. Brennan: Is this an argument Mr. Stone really that you can’t ever get an equal protection, due process violation in such a --

Mr. Richard B. Stone: No.

Mr. Justice Brennan, I don’t think we have to go nearly that far and I don’t think -- I think it all (Voice Overlap)

Justice William J. Brennan: How far do you go then?

Mr. Richard B. Stone: Well in this case, I go -- I think we go not very far at all because I think the discrepancy between which we deal with here, which is that a lesser included offense charge is available to an Indian -- to a non-Indian defendant in this case, but not to an Indian defendant is a very minor price to pay for upholding the very major rationale that Congress has consistently reinforced of preserving tribal sovereignty for number of reasons.

(A) it is in any context, very speculative from the defendant’s point of view whether a lesser included offense charge is beneficial to him, Theoretically, it’s only a benefit if the jury doesn’t follow its instructions and it maybe perfectly proper for the jury to administer mercy in some sorts of situations, particularly where there are a marginal, where the evidence is marginal which we don’t think it was in this case.

The evidence was overwhelming that the requisite intent and the requisite amount of damage occurred, but it is any event a rather speculative benefit from the defendant’s point of view any way.

The lesser included offense charge arose because the prosecutor might be barred by double jeopardy from bringing lesser included -- entirely included offenses in successive prosecutions.

And it was to enable him to put the lesser included offense before the jury so that there would be some sort of conviction if the jury acquitted him of that major offense.

Now, we don’t argue that it’s not available and that in some cases, it would be reversible error to deny it to a criminal litigant, but the question is in a constitutional context, in an equal protection argument, we must ask how important in interest is it, and I think it is a very speculative interest.

Particularly in this context, where as Judge Kaufman suggested in the Second Circuit in a related case involving a split between adult and juvenile jurisdiction, where a lesser included offense charge was not available to a juvenile who could be convicted of murder in an adult court, but a man slaughter only on a juvenile proceeding, Judge Kaufman suggested something that would’ve been perfectly applicable here though it wasn’t asked for, and that could be the functional equivalent of a lesser included offense charge and that is a charge to the effect that even if you, the jury in this federal proceeding, acquit this Indian of the charge with which he is -- which is brought against in here, he is not necessarily going to go free from the occurrences in this transaction.

He could be tried.

There is another tribunal which can try him for any lesser included offense or other aspects at all (Voice Overlap)

Justice William J. Brennan: Now, that raises all kinds of body problems and Barkus problems, it never goes, does it?

Mr. Richard B. Stone: Oh, as to whether he can be tried in this -- I think it doesn’t Mr. Justice Brennan.

A body in Barkus, I think would apply here.

In fact the body in Barkus --

Justice William J. Brennan: Maybe it’s a separate sovereignty?

Mr. Richard B. Stone: Separate sovereignty and we would argue that they are, but let me --

Justice William J. Brennan: The Indians at least to that extent sovereign, are they?

Mr. Richard B. Stone: That’s right and well, and --

Justice William J. Brennan: It is -- I forgot, don’t we have that issue in some case?

Mr. Richard B. Stone: Excuse me?

Justice William J. Brennan: Don’t we have that issue in some case as them?

Mr. Richard B. Stone: It’s been presented on certiorari and certiorari has been denied.

Justice William J. Brennan: Is that it?

Mr. Richard B. Stone: And in the case that it was presented, it was not necessarily an issue.

It was an alternative issue.

Let me say, that even that does not have to be fully decided in the context of this case because even what -- regardless of what the Court that hold (Voice Overlap)

Justice William J. Brennan: I mean that these are CFR, these aren’t sovereign Indians either, are they?

Mr. Richard B. Stone: That --

Justice William J. Brennan: Doesn't that compensate the body?

Mr. Richard B. Stone: I don’t think so Mr. Justice Brennan.

Those distinctions have not thought applicable.

The CFR and other aspects of federal participation or assistance to Indian justice have not been thought to remove the underlying sovereign right with which Indian justice is administered.

Let me make a --

Justice Thurgood Marshall: How do you get around the individual Constitutional right asserted by individual in this Court by answering it before the greatest good for the greatest number, we could get it.

Mr. Richard B. Stone: I answer it as I would in any context Mr. Justice Marshall that the discrimination is only unconstitutional insofar as it is invidious rationally.

It is not invidious, if it is based on a rational basis.

Justice Thurgood Marshall: Is it based on anything other than the fact that this man, the petition on this case, is it based on anything other than the fact that he is an Indian, spelled Indian?

Mr. Richard B. Stone: Absolutely not Mr. Justice Marshall --

Justice Thurgood Marshall: Is there anything else?

Mr. Richard B. Stone: -- but neither is the entire federal regulatory scheme governing Indians.

Justice Thurgood Marshall: But we’re only talking about this one case?

Mr. Richard B. Stone: I don’t think you can do that Mr. Justice Marshall, with all respect.

Justice Thurgood Marshall: We can’t talk about the one case?

Mr. Richard B. Stone: I don’t think you can isolate one case and say, here, it is speculative that he may have suffered some sort of harm as a result to this -- of this classification.

I think you have to ask is the classification rational.

That’s -- this is the situation I think in every case where an equal protection argument is raised.

I would like to get back for one second to Mr. Justice Brennan’s question and to say why I don’t think the issue of double jeopardy, the Barkus, where this Court has to necessarily decide that for all purposes, Indian and federal jurisdiction are separate sovereignties, though indeed we believe they are because in the context of this case that question is really only important to the issue whether it is true that if acquitted on the major charge in this case, this defendant could be then to retried on a lesser included charge in the tribal court.

And I would argue that even if they are not separate sovereignties for all purposes with respect to that question, the answer would be that double jeopardy is inapplicable because that particular branch of the double jeopardy clause.

As opposed say from the collateral estoppel problem or from the problem of double punishment for two convictions for the same offense, is based on the assumption that a prosecutor ought not to be allowed to go down the line in piecemeal harassment -- harassing fashion, and it is designed to prevent him from abusing his discretion to go down the line and continue to punish or try to punish for each successive crimes and that’s inapplicable here because he has no jurisdiction to go down the line.

Justice William J. Brennan: Well, I suppose though that one believed the same transaction under the same offense test might reach different conclusion?

Mr. Richard B. Stone: Conceivably Mr. Justice, that would be a lot --

Justice William J. Brennan: Though I believe I the same transaction test you can know?

Mr. Richard B. Stone: That would be -- in that case I am must rely on the argument of separate sovereignties.

In conclusion, I would simply reiterate that this case must be viewed I think as one isolated and not be terribly significant aspect of discrepancies which inevitably arise from this very, very complex effort to accommodate the conflicting in differing elements of Indian status that the result of declaring this particular discrepancy unconstitutional would be very short sighted and unwise from this Court’s point of view.

It would be either at the very least, it would force Congress -- force upon Congress this Court’s judgment that a rationale which has been repeatedly upheld by the federal courts and repeatedly considered, studied and re-endorsed by Congress to preserve the sovereignty of Indian tribal courts where Congress deems it applicable is in sufficient to offset discrepancy with respect to what is really a very speculative disadvantage that an Indian may, and particularly an Indian in a particular case may with hindsight think he has suffered and I would recommend that the Court affirm this decision.

Chief Justice Warren E. Burger: Mr. Meierhenry, if you need a little more time than your remaining two minutes, we will extend your time here.

Rebuttal of Mark V. Meierhenry

Mr. Mark V. Meierhenry: Your Honor, it’s unfortunate that the petitioner’s taken the case this far and the United States government has still not gotten all of its forces together and decided between what’s going on in Washington and what’s going on in South Dakota.

There is no such thing as a tribal Indian.

If a man of Indian descent is born and raised in Washington, D.C. at age 28, goes on a vacation to the Black Hills, passes through the reservation, commits one of the 13 major crimes, he will not be given a lesser included offense instruction.

That well, when the 12 major crime because if he steals something, and its larceny, he will. Now, that’s a rational classification according to the government.

The government says, “Don’t anyone step in here because this has all been thought out” yet the particular crime might have got up here, Congress forget to even amend 3242 which they did the other 12 times.

I submit that Congress has gone at this since 1885 at a happenstance manner.

They have never once, as this Court knows had this issue brought to them.

They have added crime one at a time, but they’ve never considered this is a whole.

Now another thing that the government brings up is that let’s be strict about this.

The fact and I will say that I did not raise the issue about the discrepancy of the statutory language in the Major Crimes Act and what he was charged with the indictment.

I did not raise that.

And at this point, I don’t think I can properly do so, but I’ll tell you why the government uses that statute.

South Dakota has a statute in the assault section about four after this one, that is almost exactly like the federal one, it’s called beating assault by beating, wounding and kicking.

The reason they don’t use it is it's got a six month penalty and they want five years, and that’s why they don’t use it.

Justice William O. Douglas: Well, what do you think they want to raise it?

Mr. Mark V. Meierhenry: Your Honor, this is the first trial I ever had and I didn’t see it.

Justice Byron R. White: Because that this isn’t -- it is may not -- you may have been tried for a crime that you had no authority to charge, right?

Mr. Mark V. Meierhenry: That could be Your Honor.

As he says this is just a passing thing.

I’ve had nine cases like this in two and a half years and it is very well raised in all the rest including a number of the issues that they say that are speculative gain, say and everything else that they talk about in the last part of their brief, which I’m not saying applies.

This man is an American citizen.

He has been since 1924.

The federal government is trying him for a crime.

He should be tried as any other man if Rule 31 (c) says that a man should get a lesser included offense instruction, this Court seems to say he does, then this Indian should as well.

Justice Byron R. White: What was that, what would then the penalty on the lesser included offense?

Mr. Mark V. Meierhenry: Well, there’s a number of them.

Attempted man slaughter in the federal law six months, assault by wounding and kicking I think 118 (d) --

Justice Byron R. White: That’s the six months.

Mr. Mark V. Meierhenry: -- six months.

There’s a number of them Your Honor that be brought in under the assault—

Justice Byron R. White: What if the instruction you asked was to be instructed on a crime that really wasn’t the only crime that should have been tried under the Major Crimes Act, you’re making this -- you really are making the same argument on the lesser included offense as you would have been if you said dismiss the indictment.

It doesn’t charge the right crime?

Mr. Mark V. Meierhenry: Yes, Your Honor, I would also point out that I have argued that, that the cases that the government have cited since then by District Courts in our district, have used those.

Additionally the fact that I could ask a separate sovereign, that I can ask for an instruction to the jury that would say in effect, “If you don’t convict him, he can go back to tribal court.”

The district judges in our district of South Dakota have said, “That’s no different than a prosecutor arguing to the jury convict this man and I’ll recommend that he get parole.”

The both judges consider that to be improper argument.

I as an attorney think that is improper argument.

It’s no different than me arguing a jury in state court saying, “Alright, if in South Dakota, acquitting here because he faced more serious charges in Nebraska, I don’t think that’s proper.”

The jury argued --

Justice Harry A. Blackmun: Mr. Meierhenry, who was the trial judge here, Chief Judge Nickel?

Mr. Mark V. Meierhenry: Yes, Chief Judge Nickel from Sioux Falls, South Dakota, Your Honor.

And on this matter, his view was that it was strictly jurisdictional.

In our circuit, I don’t know if it’s proper to express this, but I’m sure and the government as a matter of fact in their briefs says “Don’t give us his power because we may abuse it.”

But the petitioner and defense lawyers in our State wish very much that they have it, because this gives us more latitude.

It feel -- we feel now that many cases you have to take the trial.

You plea the man of a felony that you don’t feel convicted of, and by the way the grand jury of course is the buffer.

And the facts in this case, the man was originally charged with manslaughter because I didn’t know to do, I demanded a preliminary hearing and got one surprisingly.

He was bound over on manslaughter.

Later they took it to the grand jury.

The grand jury returned an assault with intent and so forth to do great bodily injury.

So there is a buffer there.

There’s no danger in my opinion if the grand jury system works and a defense lawyer doesn’t know what goes on that there’ll be this thing of the prosecutor doubling up, charging a greater crime hoping to get a conviction on the minor because most misdemeanors are, you know, a six-month variety and the tribal court has that jurisdiction, or CFR does in this case.

Your Honor, we would ask the petitioner's request that the writ of certiorari be issued in this case.

Chief Justice Warren E. Burger: Mr. Meierhenry, you were not appointed by the Court in the conventional way here, but representing your legal services in South Dakota you volunteered.

Mr. Mark V. Meierhenry: Yes.

Chief Justice Warren E. Burger: And on behalf of the Court, I want to thank you for your assistance to the Court and of course the assistance to your client.

Mr. Mark V. Meierhenry: Well, Your Honor, I also thank you for letting me appear since I don’t qualify as a member of the Supreme Court Bar.

Chief Justice Warren E. Burger: Well, when the three years are up, you can commence the appropriate proceeding.

The case is submitted gentlemen.