MORTON v. RUIZ

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Argument of Harry R. Sachse

Chief Justice Warren E. Burger: We'll resume argument in Morton against Ruiz.

Mr. Sachse I think you have the lectern on the close last night.

Mr. Harry R. Sachse: Mr. Chief Justice and may it please the Court.

When we closed yesterday, I was about to say that I thought the Snyder Act when well summed up by Mr. Wolf who at earlier stage was a counsel in this case, which he described the Act in Law Review article this way.

He said the Snyder Act is familiar in somewhat distressing occurrence in the history of Indian affairs.

As in other instances, Congress enacted a very general measure and left the rest up to the Secretary of the Interior and the BIA.

I think that is what the Snyder Act did do, except I would have one other thing.

It also left the rest up to future Congresses in their appropriations procedures.

Now, in all recent years including the appropriations for fiscal year 1968, which are at issue here, the Secretary of the Interior has submitted to the Congress request for funds or welfare program for Indians in this language.

General assistance will be provided to needy Indians on reservations who are not eligible for public assistance under the Social Security Act.

Each year Congress has published that language in its reports in favor of the bill.

Justice Byron R. White: Mr. Sachse what -- what is the Government's response to the claims that the Secretary really does provide welfare for a lot of the non-reservation Indians?

Mr. Harry R. Sachse: Well --

Justice Byron R. White: In Oklahoma and Alaska?

Mr. Harry R. Sachse: I think there are two problems there.

One is Oklahoma and Alaska.

I think it is just simply correct that this statement that has been made to the Congress is a compact and too abbreviated statement.

It refer to be absolutely accurate.

It should say for Indians on reservations and in the jurisdiction of the Bureau of Indian Affairs in Oklahoma and Alaska.

Justice Byron R. White: Well, why are the -- why do you provide welfare for non-reservation Indians in Oklahoma?

Mr. Harry R. Sachse: Well, in Oklahoma the reason is following.

That the whole section of the State of Oklahoma was once Indian territory and was totally occupied with Indian reservations.

Well, the second part of this what I am getting at.

The reservations have been abolished.

The tribal organizations have not been abolished.

The Indians there live on trust property and with a good deal of property still managed by the Bureau of Indian Affairs such as in the Mason case that we had last year and the Bureau's interpretation of that has been that the lands that it administers in Oklahoma are equivalent to --

Justice Byron R. White: Well, what about the Indians, I call attention to another example, the Turtle Mountain Reservation in North Dakota.

Those Indians can live anywhere they want to and still get the welfare, that's what the--

Mr. Harry R. Sachse: The Bureau of Indian Affairs has also made this interpretation of the statute that where there Indians living on trust land that's administered by the agency near a reservation, they simply treat that as if it were on the reservation.

In other words, they haven't been as rigid in saying that if your off reservation, there is absolutely nothing as one might hope for a mechanical application of the law.

What they have said is in the Turtle Mountain incidence -- they've simply equated administratively people living on trust land, allotted land.

Justice Byron R. White: Is that what those Rapid City Indians do?

Mr. Harry R. Sachse: I don't think that's trust land and --

Justice Byron R. White: Well, no, but it is said here in the brief that Indians residing in Rapid City South, Dakota get to the welfare to some extent, and they are not even close to a reservation?

Mr. Harry R. Sachse: I am not aware of them getting welfare under this program and I should mention that there is another program that does quite openly and under congressional authorization provide welfare for off-reservation Indians, that is what is generally called the relocation program.

If an Indian lives on a reservation or near a reservation, and he cannot get a job and he wants to go somewhere else to look for a job, the Bureau will try to find him a job and will provide him general assistance for several years when he first begins to work.

Justice Byron R. White: You are suggesting that Bureau doesn’t give welfare to any Oklahoma or Alaska Indians except those who are living on trust property?

Mr. Harry R. Sachse: No, I don't want to go that far.

I think --

Justice Byron R. White: Let's think you were then and that you are saying that you are giving welfare to Indians who are still members of an established tribal organization?

Mr. Harry R. Sachse: I don't think that, that's the distinction either because I am not at all sure that Mr. Ruiz is not a member of the --

Justice Byron R. White: Of course, he is.

Mr. Harry R. Sachse: The tribal organization.

Justice Byron R. White: He probably is.

Mr. Harry R. Sachse: I think what -- what the Bureau has done and I think with the knowledge and consent of Congress each year in making these appropriations is to treat Alaska and Oklahoma in a separate category and it maybe that at various times and various other places, they violated their own regulations and given welfare to people off-reservations.

In particular instance, I don't think so --

Justice William J. Brennan: What's the most of benefit when he said "on or near" that seems to be his definition?

Mr. Harry R. Sachse: Well --

Justice William J. Brennan: These are “"on or near" reservations” and I thought a lot a modern service bureau, serving as many as 400,000 Indians in Alaska, natives who live "on or near" reservations, people will find themselves isolated from the mainstream of the American lives?

Mr. Harry R. Sachse: If you describe the activities of the Bureau of Indian Affairs as whole it clearly is not limited to on reservation Indians and that "on or near" would be more accurate, but it does things for Indians who are near a reservation also.

Justice William J. Brennan: Well, these are -- these particular Indians in this case are near, aren't they?

Mr. Harry R. Sachse: There are near a reservation.

What I am saying is that in the Health Program that quite openly is for Indians who live "on or near" reservations.

In this work relocation program, it's for the benefit of Indians who live "on or near" reservations, but it's actually put into effect even quite distant from a reservation, in some city where there maybe employment.

So I am not arguing that the Bureau of Indian Affairs is precluded or doesn’t, in fact, give assistance to Indians off-reservations.

What I am saying is that in their general welfare program, this general assistance program that year after year they have asked Congress for money for this program, for activities on reservation, maybe they should have described it a little broader and that they are all -- that Congress has appropriated with that in mind and has appropriated sums of money that only fit for that definition.

Chief Justice Warren E. Burger: Well, are you saying that the Department of the Interior may do this on a discretionary basis from time-to-time but that the Ninth Circuit Court of Appeals has no such a discretion, that the essence of -- the Ninth Circuit has no -- no authority to say that this extends to all the Indians off reservations?

Mr. Harry R. Sachse: I think what's really happening is I think -- I think you have to isolate the Alaska and Oklahoma situation as special situations, but then apart from that I think that the Bureau of Indian Affairs will try to make as broad a definition of on reservation as they can, and that where there has been trust land involved in a few instances, and I know this is so, people of Bureau of Indian Affairs told me so just last week and so that they have in some instances have given welfare to people who live on trust land, near the reservations in situations where the reservation was too small for the allotments to have been made on the reservation, and the Government found land for people off-reservation.

But they have not extended that to people who do not live on trust land and thus are not under the direct supervision of the Bureau in that respect.

Justice William H. Rehnquist: You draw a line that the Bureau has generally between Indians on trust lands and Indians on allotted lands?

Mr. Harry R. Sachse: Well, when I say trust land, I am not drawing a distinction between that and alloted land.

I mean, land in which the Federal Government is still the trustee, whether it's because the Indian had an allotment and doesn’t yet own the land and fee or for any other reason.

Now I think it is clear that Congress has not appropriated money for its broader program as the petitioners ask.

I want to point out also that even the and I mean respondent asks for, I want to point out also that even the respondents say that they don't suggest that the program should be made available to Indians throughout the United States.

That at page 23 of their Brief they say we have never argued that the Government is required to provide the subsistence benefits to the fully assimilated Indian residing in Manhattan.

So if you don't use the boundary, the line that the Congress and the Bureau has set up, some other line has to be ticked and I don't think that the line “on or near” reservations is going to get any more satisfactory judicial answer to this question than the line that has been drawn now on reservations in these two special instances of Alaska and Oklahoma.

Now, I want to say a word that Bureau of Indian Affairs (Inaudible) on this.

I would feel easier with this case if the Bureau of Indian Affairs had published its manual in the Federal Registers because I think what they have done -- I don't think they had a duty to have rule making public notice in open hearings because this is for benefits and so forth and there have been cases that it tell it's not necessary there.

But I think to have these be real legislative rules, that they would have had they been published in the Federal Register.

What the BIA Actually did is publish in the Federal Register a notice that it has in this manual and it's available to the public at the Washington Office and at the Regional offices of the BIA which is something like a substantial compliance, but I don't say that it really is compliance with that statute.

So we are left with the rules simply as interpretations of the acts of Congress and I think they are correct interpretations in the sense that this is all that the Bureau asked for money for and this is all that the appropriations gave the money for.

So when the Bureau's regulations say this for welfare of Indians on reservations and in Alaska and Oklahoma, I think it's just same with the Congressional acts have be read to say anyway.

But the Court disagrees on that, I think that these Congressional acts are so vague and that the discretion left to the Bureau is so large, both in the Snyder Act and then other legislation and then the general language of the Appropriation Act which is just general appropriation, that the Bureau does have rule making authority here, and that if it did go through the process of publishing these rules, it would be based with the problem then whether that made the same program valid.

Justice Byron R. White: Was there -- is there any other if there are any challenge to rule about the difference between reservations and non-reservation Indians in this context on any ground other than the statutory ground that's just isn't consistent with the same?

Mr. Harry R. Sachse: I think that's the only challenge.

Justice Byron R. White: Oh!

Is that?

What's the statutes -- that there was no other one presented below?

Justice William J. Brennan: They make a constitutional challenge in that?

Mr. Harry R. Sachse: They will make constitutional challenge to the -- to the --

Justice William J. Brennan: That was made for us?

Mr. Harry R. Sachse: Yes, the constitutional challenge was made.

Justice William J. Brennan: The right to travel --

Justice Byron R. White: And that is here, that is here?

Mr. Harry R. Sachse: I think that's before the Court.

If the Court agrees with this that what the Secretory has done here is in accord with the Congressional legislation or with it as legitimately interpreted --

Justice Byron R. White: We don't have to reach that?

Mr. Harry R. Sachse: Then I think you have to reach the constitutional --

Justice Byron R. White: Well, what does the Government say is the purpose of that regulation, just to save money or --?

Mr. Harry R. Sachse: No, we say that the purpose of the regulation is to -- is so that in the areas where there is Indian Government or the most direct federal supervision, that the Federal Government does supply the kind of welfare program that could be supplied on a county basis within a state, but if where people move out of those areas and into the state in general, a decision has been made that at least as far as welfare goes, they should be equated with the other people in the state and have whatever benefit is there.

Justice Byron R. White: But not BIA money?

Mr. Harry R. Sachse: Not BIA money off the reservations or these particular areas.

I think it's a decision.

I don't think it's just an economy measure, but I think it is a decision to use available funds in the core area, as federal responsibility.

Justice Byron R. White: Does the Government deny that it has an impact whether on movement?

Mr. Harry R. Sachse: Yes, we do deny that it has an impact on movement of any legal significance.

We -- our view is this.

If you want to accept that the reservation or that this situation in Alaska or Oklahoma is legitimate jurisdictional kind of distinction to make then the fact that if someone leaves the jurisdiction, he gives up certain welfare benefits is not an interference with his right of travel anymore than leaving one County and going to another is if one county has a broader welfare program than another.

On non-general assistance, the welfare programs often breakdown to county by county.

I think what it is, the Government is seeing a serious problem of unemployment on reservations where it has the greatest responsibility, if the Government reacting properly to that problem, setting up a program, but if the Government simply not setting up program that goes beyond the heart area of its responsibility.

Now, I think it might have been a wise decision for Bureau Of Indian Affairs to have a broader program.

I don't argue for the merits of their decision to try to limit this program or there have been Acts passed -- Acts presented to Congress, it would have provided some broader programs and the Bureau has not supported them and Congress has not passed.

I don't speak to the merits of that.

I do simply say that I think constitutionally, this is within the area of cases such as Dandridge that there is no invidious discrimination here, that the difference is based on an essential jurisdictional difference and whatever the wisdom of the decision that Congress and the BIA have made, it's legitimately their decision to make.

I would like to reserve the 30 seconds for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Woods.

Argument of Winton D. Woods

Mr. Winton D. Woods: Mr. Chief Justice, members of the Court.

My name is Winton Woods, counsel for the respondents in this case.

I would, at the outset, like to clear up what seem to me yesterday to be apparent misunderstanding about our basic position in this case.

First I think we need to be very clear about what it is that we are talking about when we talk about general assistance sponsored by the Bureau Of Indian Affairs.

It is in fact a supplemental program that is available only to needy Indians who do not qualify for one of the categorical programs under the Social Security Act.

Those programs are generally run by the states.

The GA program is run by the BIA for the benefit of Indians who Congress has determined by virtue of their very special status in American life, are worthy of some special consideration.

With that in mind I think, we are talking in this case not about discrimination between Indians and non-Indians, but about discrimination between differing groups of Indians, between those Indians who do receive the BIA general assistance and those who do not receive BIA general assistance.

Now, the Government has sought to characterize the holding of the Court below in the very broadest possible manner.

In fact, we think that the holding of the Court was quite narrow.

If I might quote, the Court Of Appeals held, we hold that under the circumstances of this case, it was improper for the Bureau to deny General Assistance on the basis of residency alone.

Now there are two elements to that holding that I think need to be noted if the opinion of the Court below is to be properly understood.

First, the special circumstances that exist in this case and secondly, the very narrow automatic basis of the administrative decision to deny welfare.

The respondents here, plaintiffs below, are full-blooded Papago Indians who are members their tribe.

They are un-assimilated.

They speak primarily the Papago language.

They reside in a Papago community, 15 miles from their reservation.

They are in every respect as the Stucki affidavit which is in the Appendix of Pages 84 and 87 demonstrate, Papago Indians.

Moreover, they reside within the historic boundaries of their aboriginal land, land that the Indian Claims Commission has recently found was illegally taken from them.

And finally, there is no question on the record after the fair hearing in this case, that they are needy Indians within the intent of the Congressional legislation that's at issue here.

Against that factual background, then the Bureau of Indian Affairs automatically determined that the respondents were not entitled to general assistance, solely on the basis of the fact of their residency, 15 miles from the reservation boundary.

The result of that interpretation which in fact is not unusual is severe discrimination.

First, as Mr. Justice Blackmun pointed out yesterday, a Papago miner who happened to live on the western edge of the reservation and thus was able to commute to the mines at Ajo would be entitled to general assistance if he needed it, while persons in the situation of the Ruizs, who come from South Komelik in the far southern part of the reservation, near the Mexican border, and thus who are unable to commute are forced to move into Indian village in Ajo in order to work if they are to find work.

As we pointed out in our brief, there is very little work available on the Papago reservation. What can be found, generally has found in the bordering communities.

Secondly, and the Court has discussed this at some length with Mr. Sachse, there are some non-reservation Indians who receive general assistance benefits, regardless of the fact that they do not reside on the reservation, and we think that they are indistinguishable from the respondents in this case.

The Government has suggested that there is some difference based upon the jurisdiction over the reservation, and yet the Government has admitted in their brief and in the petition for certiorari, that jurisdiction exists in this case, that the Bureau in fact has jurisdiction to extent benefits to these people.

I think that we cannot assume on the basis of the legislative history that exists in this case that Congress intended that these strange and unusual results would come about when they approved this program.

We believe that the results violate congressional intent and that they also violate the Fifth Amendment.

Our basic case then is this.

We believe that when Congress directed the Secretary of the Interior, through the Snyder Act to expend such moneys as they would appropriate in the future for the care and benefit of the Indians throughout the United States, and when they later in 1968, which is the Act in issue in this case, appropriated money pursuant to that mandate, that the plain language of those statutes does not allow the automatic or conclusive presumption, if you will, of non-eligibility that is based solely upon the place of residence.

Now that's not to say that we believe that the statute mandates the payment of general assistance benefits to Indians throughout the United States, no matter where they may be found, no matter what their percentage of blood may be, no matter what their degree of assimilation may be.

We believe that the Secretary can and should protrude -- pursuant to the congressional mandate, create a carefully drawn regulation that draws the very line of Mr. Sachse was talking about, and that line can be drawn by focusing upon the worthy Indian both in the Snyder Act and in the Appropriations Act.

A statute that defines or a regulation that defines who is an Indian, for purposes of those statutes might very well meet every conceivable objection that the Government has to our case.

For example, the Bureau of Indian Affairs might conclude that an Indian -- well, that in defining an Indian, that they would look to things such as the degree of assimilation into the dominant culture, that they would look to such things as degree of blood.

Chief Justice Warren E. Burger: As series of factors that you have just mentioned, Mr. Woods, sounds strikingly like the range of criteria that are used in exercising discretion administratively?

Mr. Winton D. Woods: Your Honor, I agree, and they are also the range of factors that have been adopted by the Public Health Service to determine their jurisdiction.

If I might speak to the point more directly.

Chief Justice Warren E. Burger: I think you are at least close to the Dandridge holding of the Court?

Mr. Winton D. Woods: Your Honor, I think that this case is quite distinguishable from the Dandridge case.

The Government consistently has suggested, that this is a Dandridge problem.

I read Dandridge, at least to say that this Court will not second-guess legislative judgments, a relative need between competing classes of welfare recipients.

I don't believe that that's this case.

If we are to analogize this case to Dandridge versus Williams or Jefferson versus Hackney, I think we could hypothesize a situation, in which the State of Maryland which has jurisdiction over the entire state, chose to extend AFDC benefits only to mothers who live in Baltimore County.

As you well remember from the facts that case, there was a discrimination in Dandridge between Baltimore County and the rest of the state and to the extent that families in Baltimore County received slightly more money.

I suspect that this case -- that this Court, apart from the Social Security Act issue, on constitutional grounds would have seen that case quite differently had Maryland said, we are only going to expend money for mothers in Baltimore County, without any factual showing, without any determination that that was a rational choice.

Justice William H. Rehnquist: You don't object to this issue I take it, unless we disagree with the Ninth Circuit as to their interpretation of the congressional Act?

Mr. Winton D. Woods: That's perfectly correct Mr. Justice Rehnquist.

We believe that the case can be decided on narrow, statutory grounds on the basis of the obviously unclear legislative history, the somewhat unclear language of the two statutes and by application of the standard of construction, that this Court has applied since the time with Mr. Chief Justice Marshall, and has most recently applied last year in the McClanahan case.

Justice William H. Rehnquist: But if the legislative history is unclear and the statute is unclear, doesn’t that give you a fairly strong case for following the administrative construction?

Mr. Winton D. Woods: Your Honor, it does and it doesn’t.

As a general proposition, it's quite clear that it does, and if this where an ordinary case, I would not be standing here, making the arguments that I am.

The fact is that, the Government over the course of years has told the Congress that it is expending money for the benefit of Indians who live “on or near” reservations.

Now, there have been times, when various Senators, particularly Senator Bible in a colloquy this Court at length and the Court of Appeals spending attempted to find out, just exactly what the Bureau meant when it said “on or near.”

The bureau has never adequately described to Congress, what the “on or near” language meant.

More over, they suggested the existence of this regulation should under the standard rule be taken to be an expression of congressional intent as Congress has not overridden it in anyway through the statue.

I would agree again with that as a general proposition, but the fact of this case is, that pursuant to the policies established by the Bureau of Indian Affairs manual itself, that regulation is not for public consumption.

It is a regulation designed for internal administration.

Those regulations that are designed to inform the public and presumably the Congress, are not contained in the Bureau of Indian Affairs manual alone, but they are put in CFR, and through the Federal Register.

This regulation is hidden away in a manual that is used by the Bureau of Indian Affairs in handling its internal programs, and we simply don't believe that the standard, and I believe appropriate rule in regard to long-standing administrative regulations is applicable in this case.

Secondly, the Government points to the fact, that the appropriations request itself has always contained the limitation.

We would suggest that the fact that Congress chose not to include the requested limitation in its appropriation is equal in argument for our side.

We might well assume, particularly following the Squire versus Capoeman standard of liberal construction for statute regarding Indian Affairs, we might very well assume that the failure of Congress to enact a regulation requested by the Bureau, is in fact a recognition of Congress' intent to not limit the program to the degree that the Bureau sought to do so.

Chief Justice Warren E. Burger: Well, doesn’t the long history of the actual application of that provision have some significance?

Mr. Winton D. Woods: Indeed it does, Your Honor, and again I believe that the actual application of that provision, I assume that you are talking about the Bureau of Indian Affairs' Manual regulations.

The Court of Appeals found and we think that there is substantial support for that finding that over the course of years, the Bureau has administered their program in a very sloppy way.

That they have in fact extended benefits to Indians who do not reside on reservations even outside of Alaska and Oklahoma.

It has never been quite clear even in the legislative history which is cited in our brief just how far the Bureau has gone to extend benefits to near reservations Indians.

The Court of Appeals found, however, and we think found correctly that they have done so.

So that the in fact practice over the course of years differs greatly from the specific language of the regulation and we believe that it's appropriate for this Court not to look only or to look not only at the specific language of the regulation, but to look at -- look as well to the practice of the Bureau under that regulation.

Justice William J. Brennan: It's definitely.

Do you read the Court of Appeals as having adopted the “on or near” limitation?

Mr. Winton D. Woods: Your Honor, I believe that the Court of Appeals adopted precisely the suggestion that I am offering to this Court, it is the suggestion that I offered to them and that is that it's not the position of the Court of Appeals or of the District Court or of this Court to draft the regulation for Bureau of Indian Affairs.

We have asked for a writ of mandamus directing them to draft a regulation in light of their experience and knowledge.

They are the agency supposedly with the expertise in the area.

We suggest that they be directed to draft a regulation that incorporates functional standards describing who is an Indian to avoid the discriminations which we see in the program as is presently right.

Justice William J. Brennan: Well I had reference to it -- this is rather board language in the opinion on page 21 of the petition.

It said in light of it before going, we conclude that Congress intended general assistance benefits to be available to all Indians, including those in the position of appellates at the time that Snyder Act is passed.

That seems rather boarder than an “on or near” limitation, does it?

Mr. Winton D. Woods: It is Your Honor.

It's clearly broader and the question is --

Justice William J. Brennan: You are not defending that though --

Mr. Winton D. Woods: Well let me say this.

I would defend that with the understanding that the word Indian is subject to limiting construction.

I would not assert that the Bureau must pay general assistance benefits to a Manhattan stock broker who happens to be 164th Papago.

Justice William J. Brennan: Well, suppose he was Papago?

Justice Thurgood Marshall: What would you do with this Squaxin Indian that -- it's one of the highest labor prices in the world building those skyscrapers in New York, full-blooded?

Mr. Winton D. Woods: Your Honor, I say the outset (Voice Overlap)

Justice Thurgood Marshall: I understood in your brief that you were cutting back little earlier.

You say it did not apply to places like that I thought?

Mr. Winton D. Woods: I can make a few suggestions I would not purport to stand in front of this Court and draft a regulation without any real expertise in the area of Indian Affairs.

I would suggest in regard to that specific question that the Bureau of --

Justice Thurgood Marshall: You do say all Indians in any circumstances?

Mr. Winton D. Woods: Depending on how you define Indian, Your Honor.

You might define --

Justice Thurgood Marshall: What about Chief Judge Barefoot at the Court of Criminal Appeals Oklahoma with the full shot go in there?

Mr. Winton D. Woods: I think he is clearly a fully assimilated Indian and that is precisely the kind of Indian that we think Congress did not intend to (Voice Overlap) I do not --

Justice Thurgood Marshall: So to all Indians.

Mr. Winton D. Woods: This is a very difficult point and it has bothered, it bothered to Judge Wolf in the District Court --

Justice Thurgood Marshall: Reservation Indians and -- there all Indians, aren't they?

Mr. Winton D. Woods: They are all Indians and all them -- all I am suggesting is that for the purposes of the Snyder Act and the Appropriations Act that the Bureau may adopt a narrower definition of the Indian.

It may say that Indian for this purpose means and an assimilated Indian of certain degree of blood who and indeed residence maybe a relevant consideration.

We don't -- we don't deny that residence is one factor that the bureau may consider in using Mr. Justice Marshall's hypothetical, the Indian who resides in New York might because of one of that fact and some other facts --

Justice Thurgood Marshall: Not be an Indian?

Mr. Winton D. Woods: Not be an Indian for the purposes of the program, not for all purposes, but simply for the purposes of the program that Congress has created through the Snyder Act and the Appropriations Act.

Justice William H. Rehnquist: Mr. Woods, you said you brought an action for mandamus, this isn't the mandamus action, is it?

Mr. Winton D. Woods: This was originally an action for a writ of mandamus in the District Court.

It was the -- the complaint was on Cross motions for summary judgment.

A judgment was entered for the defendants. Case was appealed to the Court of Appeals and Court of Appeals found in favor respondents and Government appealed to this Court.

Justice William H. Rehnquist: So this was a -- in its form a mandamus action when you brought before judge Wolf?

Mr. Winton D. Woods: It was an action of in the nature of mandamus pursuant to 1361 as well as an action for a declaratory judgment.

We believe that if the Court disagrees with our position, regarding the legislative history that there are then three constitutional issues that it must confront.

Two of those we have dealt with to some extend already.

First is the discrimination between some non-reservation Indians and other non-reservation Indians.

The Government has gone to great lengths to attempt to find a rational basis for that discrimination.

But we simply say that we do not believe that there is a rational basis that's evident in the record.

Perhaps more importantly, however, there is a discrimination between reservation Indians and non-reservation Indians.

I would refer the Court to the affidavit of Mr. Elly Sam which is in the Appendix at pages 89 and 90 and was part, an exhibit in support of our motion for summary judgment.

Mr. Sam is vice chairman of Papago Tribe and he described the situation that occurred when the Government came in and built a dam in the Northern part of the reservation, called Painted Rock Dam.

A village that was on the dam location, the dam site, had to be removed.

The Government built a new village in the town of Hillaback which is directly adjacent to the reservation.

They purchased the land and treated it as if they were on the reservation.

However, some 19 families who had lived on the land where the old village was were not included in the new community that was build by the Bureau of Indian Affairs.

They had to go some place and by the nature of the Papago community, they did not feel free to move to far parts of the reservation.

They wanted to maintain their kingship ties with their village and so they moved then to Hillaback.

The situation now as described by vice chairman Sam is that those 19 families are denied general assistance benefits, even though they reside perhaps a few feet from the reservation boundary and they reside there by virtue of the action of the Government.

While other Indians who have been moved into the new community built by the BIA are given general assistance and new houses and all of the other things that the Government can do for the Indians.

We suggest that discriminations of that kind, discrimination such as the one suggested by Mr. Justice Blackmun yesterday between the miner who lives on the western edge of the reservation and commutes to Ajo some 12 miles or and the Indians who lives in the Indian village that those discriminations between certain kinds of reservation Indians and certain kinds of non-reservation Indians are simply indefensible.

We can find no rational basis to support that classification.

Justice William J. Brennan: This is the argument I gather Mr. Woods is directed to the particular facts of this case, in terms of the location of these two Indian groups, not to some general proposition that somewhere in another states, off reservation Indians are given general assistance benefits?

Mr. Winton D. Woods: Your Honor, it is directed to the both points.

I am talking now about the precise facts of this case because I understand them more clearly.

The other situations that we have cited in our brief come from statements of Bureau of Indian Affairs officials to various appropriations Committees and Congress over the course of years and they have describe, this rather is a fuzzy way in which they about administering their program.

I can't --

Justice William J. Brennan: I am addressing of course to your constitutional argument?

Mr. Winton D. Woods: Right and we suggest that the discrimination created on the reservation in Arizona as well as those situations described in the brief in Alaska and Oklahoma, Rapid City, Turtle Mountain apparently in Reno, we know of there may very well be other situations which we are unaware.

The point is that there are some reservation Indians or non-reservation Indians who are indistinguishable, indistinguishable from their brothers who reside a few miles away on the reservation who are denied general assistance benefits while the class of people from whom they cannot be distinguished are granted general assistance benefits.

Justice Potter Stewart: Well, they are distinguishable on the basis of their residence and that's what this case is about?

Mr. Winton D. Woods: That is precisely what it's about Your Honor --

Justice Potter Stewart: And that is a distinction?

Mr. Winton D. Woods: That is a distinction, but we would suggest that that distinction, there is no rational relationship to the purpose of the legislation which is to help needy Indians, as --

Justice Potter Stewart: A different argument that they argue cannot fairly say that they are absolutely indistinguishable because the distinction is their place of residence and that's what the -- that's the distinction made in that case?

Mr. Winton D. Woods: That's absolutely right, Your Honor.

Finally, if the Court concludes that the traditional equal protection argument and the legislative history nonetheless requiring to uphold the Bureau of Indian Affairs regulation an issue in this case, we believe that the appropriate standard for judging the constitutionality of the action of the Bureau and of the Secretary of the Interior, is the strict scrutiny test adopted by this Court in Shapiro versus Tompkins.

Justice William J. Brennan: Which have also I think just suggested that even under the rationality test (Voice Overlap)

Mr. Winton D. Woods: That's right, Your Honor.

We have three grounds upon which we think this is improper.

We think it violates the intend of Congress.

We think it violates traditional equal protection and we think it infringes upon the right of an Indian to travel throughout and just don't like aboriginal land.

The facts of this case I would remind the Court are that the land upon which the respondents live, is land that was illegally taken from the Papago Tribe as found by the Indian Claims Commission.

They reside within their historic aboriginal land and they have exercised their right and I have to admit that it is not a right that this Court has established, but I think that any fair reading of the right to travel cases, must conclude that an Indian has a right to travel particularly throughout his historic land.

As we pointed out in our brief in the -- in our added statement, the statement made by the Government, there is very little work available on the reservation and thus travel around the reservation and to off-reservation communities becomes a matter of necessity of one is to work.

If Mr. Ruiz wanted to work in the mines, he had to move to Ajo and to live in Indian village since commuting from his village in the the southern part of the reservation was impossible.

He could have moved back, he could have moved back to the reservation as evidently many miners did, as Professor Stucki discovered during his study, but he wanted to keep his daughter in school in Ajo, so that she would have a better chance than he had and he did so.

Thus he was penalized by the Bureau for having exercised the fundamental right by having gone to Ajo a few miles from his reservation to find work.

Moreover, the regulation acts as an inducement for him to come back to the regulation and there evidently are a number of cases described not only in the various Committee hearings, but in the affidavits in this case, in which Indians have returned to the reservation.

Chief Justice Warren E. Burger: Wouldn't that have been true in the Dandridge case of her recipient living in Baltimore had moved over to the eastern shore or some place?

Mr. Winton D. Woods: I am not sure I understand your question.

Chief Justice Warren E. Burger: You are saying that by moving, you are talking about the right to travel, but that right was also involved in Dandridge, wasn't that?

Mr. Winton D. Woods: You mean if they had moved out of Maryland --

Chief Justice Warren E. Burger: No.

Mr. Winton D. Woods: -- that they have moved to some other state.

I quite agree and I think again this is a different case.

We are not suggesting and the Government is not suggesting that the Bureau of Indian Affairs' jurisdiction is limited to a single state.

They have traveled throughout the area under the jurisdiction of the Governmental agency that creates the welfare program i.e. the United States Government.

We think that that is a distinguishable case from the person who moves say from Maryland to Virginia and then seeks benefits from the state of Maryland because they are higher than Virginia.

We wouldn't argue for that proposition.

We argue only for the proposition that a person who travels within the appropriate Governmental jurisdiction has got a right to not be discriminated against because they have exercised that right of movement.

I understand that perhaps later today, and at least by tomorrow, another Arizona case dealing with right to some extent, to the right intrastate travel will be before this Court and I think to some extent that is relevant to the right to travel argument that we are raising here.

Justice William H. Rehnquist: The BIA jurisdiction I take at extends throughout the 50 states, so that what you are contending for is, is a right to travel because of the Indians' relationship to the BIA, anywhere in the 50 states different from that of an ordinary citizen?

Mr. Winton D. Woods: No, we don't suggest that it is any different from the right of an ordinary citizen.

Justice William H. Rehnquist: Then why does it depend on BIA jurisdiction?

Mr. Winton D. Woods: Simply because the question raised by Mr. Chief Justice Burger, creates the situation in which a welfare recipient moves from one jurisdiction, one relevant Governmental jurisdiction into another from jurisdiction A which was previously paying welfare assistance to her to jurisdiction B.

Justice William H. Rehnquist: Well, I understood his question to you to be about someone who moved from Baltimore County to the eastern shore of Maryland, both within Maryland and I think in Dandridge we sustained a differential between Baltimore County and other parts of Maryland?

Mr. Winton D. Woods: That's right, Your Honor.

You did sustain, I think without a great deal of discussion the differential between Baltimore County and the rest of the state --

Justice Potter Stewart: It wasn’t at issue in Dandridge, there was an issue --

Mr. Winton D. Woods: I take it, it was not an issue and moreover this is not the Dandridge case.

There isn't a differential here.

This is not a case where the Bureau of Indian Affairs has weighed competing needs among classes of people.

It is a case where the Bureau automatically without any factual basis has concluded that off-reservations Indians were not within the recipient population created by Congress i.e. needy un-assimilated Indians.

And we think that's very different from the previous decisions of this Court, quite properly I believe upholding the right of a state legislature to make judgments about competing needs among competing classes of recipients.

We think it's a quite different matter to say that these people are not to be included at all.

They are not even to be given a shot at dividing up that limited pie.

My time is up.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Woods.

Mr. Sachse do you have anything further?

Rebuttal of Harry R. Sachse

Mr. Harry R. Sachse: I don't have any.

Chief Justice Warren E. Burger: Thank You gentlemen.

The case is submitted.