UNITED STATES v. ANTELOPE

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Argument of Andrew L. Frey

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-661, United States against Antelope.

Mr. Frey, you may you proceed whenever you are ready.

Mr. Andrew L. Frey: Mr. Chief Justice and May it please the Court.

This case is here on Writ of Certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit, reversing respondent’s conviction for first degree murder on equal protection grounds.

This case began when respondents broke into the home of Emma Johnson, an 84-year-old non-Indian woman who lived on Coeur d’Alene Indian reservation in Idaho.

They robbed her and then they kicked and beat her to death.

Because respondents are Indians and the crime occurred in the Indian Country and because the offences were among those enumerated in the so called Major Crimes Act, the crimes came within the jurisdiction of the Federal District Court.

Respondents were indicted, tried and convicted of burglary, robbery and felony murder and I talk here about respondents Antelope and Leonard Davison, actually Respondent William Davison was convicted only of second degree murder and the reversal of his conviction appears to be inadvertent and not based on any of the reasons given by the Court of Appeals.

Respondents appealed their first-degree felony murder convictions to the Ninth Circuit.

Unknown Speaker: All three of the defendants were Indians?

Mr. Andrew L. Frey: All three, yes.

They are actually four participants in the crime.

One testified on the behalf of the prosecution and is not involved in this appeal.

The Ninth Circuit reversed on the grounds that the conviction violated equal protection concepts embodied in the Fifth Amendment by allowing respondents to be convicted of felony murder that is without requiring the proof of premeditation or deliberation when a hypothetical non-Indian committing the same crime would have been tried under Idaho law, which has no felony murder provision.

Parenthetically, I note that Idaho used to have a felony murder provision identical to the federal provision and that provision was dropped about four years ago when Idaho adopted a mandatory death penalty for first-degree murder.

Unknown Speaker: What about an act committed a non-Indian in the same circumstances on the same reservation?

Mr. Andrew L. Frey: Well, the jurisdiction would depend upon the identity of the victim and I will outline the jurisdictional possibilities as I proceed with the argument.

The Court of Appeals perceived the situation that I have described, the racial discrimination against the Indians, which it found not supported by any compelling governmental interest.

I think it is best to begin the discussion of the legal issues in this case by outlining the current status of jurisdiction with respect to crimes committed in Indian Country.

If an Indian commits a crime against the person or property of another Indian, jurisdiction over the offense is within the tribal courts, unless the offense is one of the Major Crimes enumerated in 18 U.S.C. 1153 in which case jurisdiction is in federal court under Federal Law.

If an Indian commits a crime against a non-Indian, essentially the same status applies, except that if it is not a major crime and he has been punished by the tribe, there would be no federal court jurisdiction, if he has not been punished by the tribe, there would be federal court jurisdiction under Section 1152.

Now, if a non-Indian commits a crime against a non-Indian, Section 1152 appears on its face to grant federal jurisdiction over that offense.

However in a long line of decisions, beginning with the United States against McBratney in 1881 and going through the Draper case and New York ex rel Ray in 1945, this Court has held that the States have exclusive jurisdiction over this category of offenses.

Unknown Speaker: Even if it is a so-called major crime and even if it is committed on an Indian reservation?

Mr. Andrew L. Frey: It is treated as though it were committed elsewhere in the State and not within an Indian country for purposes of jurisdiction.

So, the situation is if an Indian is involved, either as perpetrator or victim, it is either federal or tribal jurisdiction, if only non-Indians are involved in the transaction there is state jurisdiction.

What has now emerged, there is a coherent overall structure under which full recognition is given to the Paramount Federal and Tribal responsibility for regulation when Indians or Indian interests are involved, while the jurisdiction of the State maybe recognized over events occurring within the boarders of the State, not implicating Indian interest, even though the events may take place in Indian Country.

What has become clear as this Court’s Indian jurisprudence has evolved therefore is the central notion of the allocation of jurisdiction between the federal government and the States is strongly rooted in the presence or absence of impact on the interests of Tribal Indians.

Now along comes the Ninth Circuit and holds that this guiding principle developed by this court is unconstitutional in its application to a large category of cases; that is all cases involving crimes against the person or property of non-Indians.

What it is considered carefully then what this discrimination as the Ninth Circuit found is and perhaps more importantly what it is not.

The federal murder statute under which respondents were convicted is plainly not racially discriminatory on its face and for purposes of this argument, I assume that the term Indian and the jurisdictional statute is a racial term, although we actually dispute that proposition.

Any person committing felony murder within an area of federal jurisdiction, Indian or not is guilty of first-degree murder.

This applies to a non-Indian who murders an Indian in Indian Country.

This applies to a non-Indian who commits felony murder on a federal enclave such as a military reservation or commits felony murder in a vessel on the high seas.

Indeed, the application of the felony murder statute to Indians by virtue of Section 1153 reflects not a discrimination with regard to Indians, but an affirmative determination by Congress to treat Indians the same way as all other persons within federal criminal jurisdiction are treated.

The discrimination comes about then not because Congress has decreed that Indians and non-Indians who commit felony murder shall be treated differently in any respect, but simply because it has allowed the States to assert jurisdiction when no Indian is involved in a crime either as victim or perpetrator.

Now inevitably, when some cases are allocated to the jurisdiction of one sovereign and others to a different sovereign, there will be differences in a definition of offense, differences in the procedure and evidentiary rules governing the trial of the case and differences in the punishment provided.

It is these differences that are the product of this jurisdictional allocation that the Court of Appeals found invidiously discriminatory.

This case is thus entirely different from the Cleveland line of cases relied upon by the Court of Appeals and heavily relied upon by respondents here.

Cleveland involved a situation in which an Indian is the victim of an assault and thinking about this case, it can be very confusing and I think one point to keep in mind is that what we might call the Antelope category of cases all involved in non-Indian victims or we might call the Cleveland category of cases all involved Indian victims.

Now, under the provisions of Section 1153 as there were in effect at the time of Cleveland decision, if an Indian assaulted an Indian, State Law was referred to provide substance of law and punishment.

However, if a non-Indian assaulted an Indian, 1152 applied and federal law governed and there were differences which resulted in, for instance in the Cleveland case, a larger punishment being inflicted on an Indian defendant than could have been on a non-Indian defendant.

But the key factor in the Cleveland case is that both groups of defendants were tried in Federal Court and that Congress had established the standards by which both groups should be judged and the status of the defendant as Indian or non-Indian was the critical factor that activated either State Law or Federal Law applying as a matter of affirmative congressional enactment.

Now, this direct discrimination would pose a difficult case and it would be legitimately subject to some of the objections wrongly made so that procedures in the present case.

In the present case, the discrimination derives as I have said, solely from the division of jurisdiction between the States and the Federal Government.

In order for this court to sustain the result reached by the Court of Appeals, it must conclude that this eminently sensible division of responsibility which has so often been endorsed by this court, which allows the States to apply their law in their courts when no federal interest is importantly implicated, but retains the federal governance, the situation where trust responsibilities to the Indian tribes are involved, but this sensible allocation of jurisdiction is impermissible because State law is different from Federal law.

We submit of course that this wholly non-invidious allocation of jurisdiction by a Congress and by this Court is fully consistent with the equal protection obligations imposed upon Congress.

Now, I think it is plain that we need not carry the burden that respondents would thrust upon us of showing a compelling governmental interest to sustain the allocation of jurisdiction that exists in this case.

But, I would like to outline for the court, the choices that would be available to Congress if the Court of Appeals’ rejection of the present system for administering criminal justice in Indian Country is upheld by this Court.

First of all, Congress could do nothing.

Such a case, each prosecution for a crime against a non-Indian and Indian Country would be governed by a patch work assortment of the most lenient features of the State and Federal Law.

For example, if a Peace Officer is murdered in the course of a felony in State of Idaho in an Indian Country, the defendant could not be convicted of first-degree felony murder because Idaho has no such provision, only the Federal Law does.

Presumably, however, the defendant, if an Indian could not be convicted of murder of a Peace Officer which is first-degree murder under Idaho Law because Federal Law has no such provision.

Unknown Speaker: Mr. Frey what is the rule if a reservation Indian is killed off the reservation?

Mr. Andrew L. Frey: That would be within the State jurisdiction.

Unknown Speaker: No federal dimension to that at all?

Mr. Andrew L. Frey: Well, there is none under present statute, possibly Congress could adapt the statute.

Unknown Speaker: And how about an Indian committing a crime off the reservation, the same?

Mr. Andrew L. Frey: Same thing goes.

Unknown Speaker: Thank you.

Mr. Andrew L. Frey: And of course the only Indians in our view who are subject to jurisdiction on the reservation under the definition of Indian in 1152 and 1153 are tribal Indians not Canadian Indians, not Indians from terminated tribes only so, but we suggest that it is not really basically a racial but more a political definition, although we recognize there is a racial component.

Unknown Speaker: So if a non-tribal Indian commits a crime or he has a crime committed against him on a reservation?

Mr. Andrew L. Frey: He would be treated as a non-Indian for purposes of the statute.

Unknown Speaker: So that is why you say, it is a blend of geographical or political area and the identity of the perpetrator?

Mr. Andrew L. Frey: Right and of course race is relevant.

The existence of Indian blood or non-existence of Indian blood is a relevant factor, but it is not necessarily determinative factor in deciding who is an Indian and who is not.

But in our view it does not matter, even if Indian is a racial term, we think it is plain that the arrangement that Congress and this Court have evolved over the years is completely justifiable and does not work any invidious discrimination.

I would like to give another example of what happens under the Court of Appeals decision as we understand and that that is the situation in which an insanity defense is available.

And let us say that the State definition of insanity is more lenient or liberal than the federal definition of insanity.

Yet on the other hand let us say that the State has as Oregon had at least at one time a requirement that the defendant prove insanity rather than the federal requirement that the government bear the burden of proving sanity beyond a reasonable doubt.

Presumably, again, under the Court of Appeals’ opinion, you would have to pick the State definition of insanity and federal burden of proof.

Unknown Speaker: In this very case one might be rather hard put to it to decide which was the more lenient rule because as I think, I heard you say earlier in your argument that while Idaho does not have a felony murder, it does have first-degree murder punishable by death.

Mr. Andrew L. Frey: That is correct.

The evidence was sighted that this possibly be defense.

Unknown Speaker: The evidence of this case might as well support the first-degree on ordinary common law first-degree murder conviction and that would have been punishable?

Mr. Andrew L. Frey: That would not have been more lenient in our view.

Unknown Speaker: Certainly the punishment would not have been, but the proof of conviction would have been more difficult.

Mr. Andrew L. Frey: Yes, in order to convict the first-degree murder.

Unknown Speaker: You have to show deliberation and premeditation as well.

Mr. Andrew L. Frey: That is correct.

Unknown Speaker: And I suppose it is even clearer that if the death penalty was available in that State and had been imposed, we would not here at all.

Mr. Andrew L. Frey: If it was imposed.

I doubt that the Idaho statute in fact could survive the North Carolina decisions last year, but in principle, we are talking theoretically now and the fact is that we point out in our brief, for instance the manslaughter statutes.

The federal statute has two degrees of manslaughter with certain punishment prescribed.

The Idaho statute has four degrees of manslaughter, ranging from punishments considerably less than the federal punishment up to punishments considerably more than the maximum federal punishment.

Now, I do not how you compare these two systems to determine which is more lenient.

In any event, it seems to me plain that the result of the Ninth Circuit’s holding is that no coherence system of legal rules is applied and the potential for responding litigation over a choice of law is virtually endless.

Now, Congress would have two alternatives to this chaotic system.

The first is to abandon federal supremacy in the area and the trust responsibility to the Indian tribes by either (1) turning all prosecutions over to the State Courts under State law which is what has been done in the PL so called PL 280 States.

Now, there was a time at the time PL 280 was adapted when the sentiment in Congress was very much in favor of the simulation of Indians and PL 280 was a product of that and in five or six dates there is in fact state jurisdiction.

There since was a reaction to that and then the Indian Civil Rights Act in 1968, Congress drew back from that approach and determined that the tribes should have a say in the turnover of jurisdiction to the States because many of the tribes where extremely reluctant to see their members subject to state court jurisdiction and state law and prefer to maintain the existing system.

Also, of course Congress could adapt an assimilative crime’s approach under which all Indian defendants and now we are talking about the category of cases in which non-Indians are victims, under which all the Indian defendants would be governed by State law.

Now, if this is what is required by the so-called equal protection violation that we have in this case it is a strange principle because it basically says that, yes, court has recognized over and over again and the Court of Appeals did not dispute that there exists a wardship or trust responsibility towards the tribal Indians, but the only Congress can exercise this responsibility is to advocate its own law making functions and simply say whatever the states do will govern the Indians.

Now, there is a second alternative approach and that is the federal law is everything and is to bring to either for this court to overrule the McBratney, Draper line of cases or for Congress to overrule it by statute and bring all wholly non-Indian transactions in Indian Country within federal court jurisdiction.

Unknown Speaker: The statute looks fairly clear the way it is written, does it not?

Mr. Andrew L. Frey: That is true, but in McBratney what the court said was that the statute was implicitly repealed by the Colorado Enabling Act which admitted the State on equal footing and there has been a lot of criticism of this line of cases, but it is fairly well embedded in our jurisprudence now and I think it makes a lot of sense and I would think that this Court should only as a last resort, only if it finds that it cannot escape the result reached by the Ninth Circuit should it consider the possibility of overruling the McBratney line of cases.

Now, with regard to the federalizing result, there are some practical problems that I think make it an unsatisfactory course, although possibly one that Congress would decide to adapt.

One is that many reservations have a large percentage of non-Indian population.

In fact, Coeur d'Alene Indian Reservation on which this murder occurred has 2500 non-Indian residents and only 450 Indians, so it is over 80% non-Indians.

That is true of a number of other reservations.

The result is that matters in which there is no serious federal interest would be thrust upon the federal court system, thrust upon the United States’ Attorneys and the Martial Service to deal with, it would be a substantial added burden that is difficult in my view as a practical matter to justify in terms of the federal interest involved.

At the same time, I think it has an unjustified effect on the States, one that Congress would be reluctant having in the Enabling Act, admitted the States with jurisdiction over wholly non-Indian transactions.

There is something to be said for the proposition of this should not be taken away from the States unless Congress or perhaps this court finds any compelling federal interest for altering that allocation of responsibility.

Now, what we come down then is what I think the Court of Appeals has done, it has picked some concepts which have merit in other context, the notion that there is should not be a racial discrimination in the administration of Criminal Law and that where statutes discriminate between individuals on the basis of race that discriminate could only be justified if at all by showing a compelling governmental interest then it is imported those considerations into an area where they really do not fit, where they really do not belong and where they really have most unfortunate and unnecessary results.

I do not believe that the Indians are treated unfairly under the present allocation of jurisdiction.

They are treated the same way in this case that non-Indians, any place within federal criminal jurisdiction in the United States are treated and I believe there are no grounds for finding of an equal protection violation.

I would like to reserve the balance in my time.

Chief Justice Warren E. Burger: Very well Mr. Fry.

Mr. Walker.

Argument of John W. Walker

Mr. John W. Walker: Mr. Chief Justice and May it please the court.

It is the respondent Davison’s position that the statutory framework of 18 U.S.C.1151, 1152 and 1153 when read together provide an impermissible racial discrimination in that when certain conduct is perpetrated within the exterior boundaries of an Indian reservation, that prohibited conduct treats the perpetrator differently depending upon the race of the victim and the race of the perpetrator.

In this instance for example, the victim was non-Indian and the defendant was Indian and as a consequence under 18 U.S.C. 1153 of the Major Crimes Act, these Indian defendants were in federal court facing 18 U.S.C. 1111 which is the federal homicide statute.

Unknown Speaker: What if the defendant was a white man and he had killed an Indian and that the white man came to you would you be here making the same argument?

Mr. John W. Walker: Under 1152 Mr. Justice that would still be a matter for a federal court determination.

Unknown Speaker: I know but he would not have the advantages of the State law.

Mr. John W. Walker: I believe that is correct.

Unknown Speaker: So would you be making a racial discrimination claim here?

Mr. John W. Walker: I do not believe that I would be able to.

Unknown Speaker: Well, it is because he is white, is it or not or because he killed an Indian or because he committed a crime against an Indian?

Mr. John W. Walker: Well, it is possible that the hypothetical position that you pose or situation you pose might also be subject to the same argument that we are adapting here.

I have not and possibly I should have considered that.

It is seems to me that in reaching the question, this statutory framework differs from any other than I am aware of than the federal system in that not only are you considering the territory involved, but you were also in conjunction with that considering the race of the individuals involved, more specifically the race of the defendant.

Actually in trying to decide which form you are going to be in and there are three possibilities.

There can be Tribal Court.

There can be State Court and there can be Federal District Court as a matter of original jurisdiction and there are four things that need to be considered in order to make the determination.

One is the location of the offense whether it was within the exterior boundaries of an Indian reservation that is covered.

Secondly, the race of the victim and the race of defendant and thirdly the conduct that is being considered whether it comes within 1153 or not.

Fourthly, you have to determine whether or not the State in which the conduct was perpetrated is a State which is affected by Public Law 280.

Now, this is another matter that further goes to complicate the question and that is that Public Law 280 allowed six days at the inception to have total jurisdiction over all offenses committed on Indian reservations.

For example, in California, I do not believe there are any excluded reservations in California, in Minnesota, I believe there was one that excluded, but in California for example, under the same facts, since California was a Public Law 280 State, this entire trial would have been in California State Court as opposed to federal court because it is a Public Law 280 State.

Unknown Speaker: Why is that any different than the United States ceding jurisdiction to the Puerto Rico to have its own crime system rather than having the federal statutes decide what should be crimes in Puerto Rico?

Mr. John W. Walker: Well, the significance of Public Law 280 in our view is that one of the justifications for this racial consideration that is posed by the Government is the fact that the United States government has a wardship or trust responsibility towards Indians and the contention is that this can only be furthered by having trial in Federal District Court to protect them from the capriciousness or the discrimination that might exist in State Courts and by Congress then enacting Public Law 280, they have more or less abandoned in our view this justification.

Unknown Speaker: But doesn’t Public Law 280 require the state to take advantage of it to make certain commitments to treat the Indians equally or favorably, it is not just a session by its own turn?

Mr. John W. Walker: Well, there is not a different criminal justice standard in State of California for Indians that differs from that for non-Indians.

If there is I assume that it is subject to some constitutional attack.

Unknown Speaker: But having the number of States that could have qualified under Public Law 280 declined to do so because they did not want to perform the other side of the bargain?

Mr. John W. Walker: Yes, Mr. Justice that is correct.

Now, as the Public Law 280 is amended, it requires the legislature and the tribe in the State both consent to this.

I think the import of Public Law of 208 however, is that it rejects in my mind the contention that the only way to further the trust responsibility that the federal government has or the wardship doctrine is by having a federal district court, the court of original jurisdiction.

Unknown Speaker: Mr. Walker, under Idaho State Law there is a death penalty possibility, is there not?

Mr. John W. Walker: That is correct.

Unknown Speaker: You want to subject your clients to that?

Mr. John W. Walker: The answer to that question Mr. Justice is that under the decisions rendered in the Ninth Circuit, the Ninth Circuit has looked at two phases of the substantive crime.

One is the burden of proof that the prosecution must meet and secondly they look at the severity of the punishment and when they have found discrimination based upon race, they have opted to give the Indians the benefit of the doubt.

So in this instance if the court were to adopt the Ninth Circuit standard or opinion in effect the respondents in this instance would be given the benefit of the burden of the Idaho homicide statute and I would assume then the benefit of the punishment provision contained within the federal homicides statute.

I understand the question that you pose and I understand the difficulties that it would present.

Unknown Speaker: Then I take it, you would not be happy if we were to decide in the interest of equality that all Indians and non-Indians are to be tried in State Court.

You want the benefit of either one?

Mr. John W. Walker: Naturally, the problem is if you assume a conviction then we would not want the death penalty naturally, but what the effect of this district court decision was, before the Ninth Circuit reversed it, was that it made conviction easier and in effect it was easier because of the race of the defendants.

Naturally, if you assume that there could be a convention hat under either one of the statutes then we would not be happy with the death penalty situation, but here the standard that the government had to meet was a lesser standard and as a consequence they did not have to prove premeditation in order to obtain the convictions.

I do not think there can be any question, but that the classification here is racial.

There has been in the briefs a contention made by the government that there is a political, social status or relationship here and they have cited the Mancari case.

It seems to me that the Mancari case was very limited in its holding in that in that first of all it was applied only to Civil Bureau of Indian Affair hiring preferences, it did not go to the criminal situation and additionally it conferred a benefit as opposed to a detriment.

It seems to me then that if you do agree that the statute on its face...

Unknown Speaker: Well, and Mancari carried that the statute conferred a benefit on the Indians, but it conferred a detriment on the whites.

If you are arguing racial, certainly the thing upheld in Morton against the Mancari, Mr. Justice Blackmun’s opinion was something that favored to the Indians and disfavored the whites.

Mr. John W. Walker: Correct.

Unknown Speaker: Are you suggesting that the fact that it benefited Indians makes it easier to defend than if it had benefited whites?

Mr. John W. Walker: No, I am suggesting that the holding of that case was narrow and that the government is trying to take this political social theory and take it from the civil realm and from the employment preference realm and apply it to the criminal realm as well.

Unknown Speaker: But I thought one of your arguments was that it conferred a benefit rather than a detriment?

Mr. John W. Walker: That is correct and in instances where a benefit has been conferred, the cases coming from the Ninth Circuit have held that there is no standing for the Indian to complain when there is discrimination, when he is benefited by the discrimination.

For example there was a case where there was a difference between the Federal and State definition for the rate statute and the Indian defendant filed an appeal on equal protection grounds and the court held, yes there is a difference, but the difference is to your benefit and if it is to your benefit you have no cause to complain.

Unknown Speaker: Mr. Walker, if we affirm the Ninth Circuit, would it not be possible in future for a white man to raise the same question in all of that equal protection?

Mr. John W. Walker: I would say that it would certainly be possible, but it will depend upon what Congress has reply to the decision.

Unknown Speaker: And if we agree with that would not the old criminal law be confused?

Mr. John W. Walker: I would say that there would be one way for the court to rule in which there would be no differences in the substantive definition and that has already been done in part.

In 1153, the substantive definition of the crime is relegated to the State definition in certain instances.

It is now 13 Major Crimes in 1153.

Some of those are relegated to the State definition.

Unknown Speaker: Then it would have to be done by Congress?

We could not do that.

Mr. John W. Walker: The situation that you pose is certainly a possibility Mr. Justice.

If you assume --

Unknown Speaker: Well, going back if you will for a moment Mr. Walker to your colloquy with my brother Rehnquist about whether or not this is racial, as I understood Mr. Frey and perhaps I misunderstood him, I mean, he said that -- let us assume a Mohican Indian who lives up in New York State and goes for vacation out here on this Coeur d'Alene Indian Reservation just as any other tourist and he committed this offense.

He would be treated not as an Indian, would he not?

Mr. John W. Walker: He would be tried in State Court.

Unknown Speaker: So it is not racial, it is just Indian, unless I misapprehended, means a member of the tribe who operates that reservation, is it not?

Mr. John W. Walker: Well, the cases have held that you cannot become enrolled unless you are an Indian.

Unknown Speaker: Well, I know that.

To be eligible to be a member of the tribe you have to be an “Indian.”

Mr. John W. Walker: So, maybe it is racial.

Unknown Speaker: But it is not all Indians, is it?

Mr. John W. Walker: That would be correct.

Unknown Speaker: My visiting New York, I would not be in Indian, even though it would in this definition and even though he is in fact an Indian.

Mr. John W. Walker: As I understand it that would be correct.

You would have to be an enrolled.

Unknown Speaker: So it is not, that is how we were talking about all people of a certain race.

It is only people who are politically members of this tribe, is it not?

Mr. John W. Walker: It might be, if you will excuse the expression in a leak racial...

Unknown Speaker: Or at least a segment of the whole?

Mr. John W. Walker: Right, it would not apply to the entire.

Unknown Speaker: And if a member of this tribe were visiting a reservation in South Carolina, he would not be in Indian if he committed this offense on that reservation, would he?

Mr. John W. Walker: As I understand the case decisions that would correct.

Unknown Speaker: You are getting into your colleague’s time, counsel.

Mr. John W. Walker: I did not see.

Chief Justice Warren E. Burger: Mr. Bowles.

Argument of Allen V. Bowles

Mr. Allen V. Bowles: Mr. Chief Justice and May it please the court.

The one comment I might make before I start and it really is not determinant of this case as far as the Idaho death penalty itself is concerned so that is presently on appeal and expectedly overturned.

So, I would like to address just a moment this Indian matter, the one and essential element that must to be present for an individual to come within this federal jurisdiction is the fact that he be an Indian that in addition to be an enrolled, you could be adopted by the tribe and still not come within the jurisdiction.

And, as has been stated by the US Government here, that the Indian who comes within the federal jurisdiction here is treated and know differently than any one else who comes within federal jurisdiction, but I think the point we have to make is that the reason that that person is within the federal jurisdiction is because of his Indian blood.

Add that to his enrolment in the tribe and the location, but there is that one essential element that is necessary and which brings him within the federal jurisdiction of statute.

Unknown Speaker: If he committed murder in the City of Chicago; he would be tried in the State Court.

The other reason is own reservation.

Mr. Allen V. Bowles: That is correct, there is a (Inaudible) race, yes, but you have to have the race before you get into that.

Unknown Speaker: But under the old cliché having Indian blood is a necessary, but not a sufficient condition?

Mr. Allen V. Bowles: That is correct.

Yes, it is absolute and necessary.

Now, the decisions of course and as the development of law down through the time we started dealing with Indians has assumed this wardship doctrine and the purpose of that of course was to assist and benefit the Indian.

I think it as the Court stated in the US v. Kagama case in 1886 that from the weakness and helplessness so largely do to the course of dealing of the federal government with them and the treaties that have been promised to them, there arises a duty of protection.

I think from that duty of protection, of course this is also with that is the power for the legislation, but from that duty of protection under the Mancari case where they were given the advantage in employment.

Their duty of protection to promote the Indian’s ability to function on their own is promoted by that and as a legitimate purpose under the duty of protection which came out of the Kagama case and was later however, in the United State versus the Klamath case in 1938 we find that this wardship doctrine and the duty that the federal government has to the Indian is however subject to constitutional limitations.

So what we are saying in essence is that it is necessary to have this Indian blood which puts you into the federal jurisdiction, applies a standard to you which does not apply to any other defendants in that State assuming a non-Indian victim and non-Indians defendant.

Unknown Speaker: Mr. Bowles could I ask you a question about your basic theory?

As I understand that there are three possible jurisdictions that might try them; in the state, the federal government or the tribe?

Mr. Allen V. Bowles: Tribe, that is correct.

Unknown Speaker: Would you make the same argument if the jurisdictions were committed to the tribe and the tribe had a more severe penalty than the State?

Mr. Allen V. Bowles: I think there we would be going along with the entire policy in dealing with Indians of trying to recognize what we term their independent sovereignty and you would be getting into an area which was not only raised what was more emphatically this political subdivision type of situation.

Unknown Speaker: So the answer, did you say that would be a different case?

Mr. Allen V. Bowles: I would view it is a different case, yes.

Now, in a recent case in 1973 of Keeble v. The United States, the language within that decision as Congress extended federal jurisdiction to crimes committed by Indians on Indian land out of a conviction that many Indians would be civilized a great deal sooner by being under the federal criminal laws and taught to regard life and the personal property of others.

Then a quotation from, I do not seem to have the Congressman here, but this is emphatically not to say, however, that Congress intended to bribe Indian defendants of procedural rights guaranteed to other defendants.

Of course for this comment it does not exclude just defendants in the federal courts or to make it easier to convict an Indian than any other defendant and I think this is a justification for the type of application that we have in the Antelope case would have to show that this type of treatment is beneficial to the Indian under our duty of protection to the Indian.

And they are making it easier to convict the Indian than you do to any other citizen say within the State of Idaho, are we protecting the Indian, are we benefiting the Indian to make it easier for him to eventually we hope melt into society and take his place there as all other citizens of the state of Idaho or any other state?

Unknown Speaker: Mr. Bowles if political reasons could justify ceding jurisdiction with tribe why cannot political reasons justify ceding jurisdiction to federal government as opposed to state government?

Mr. Allen V. Bowles: Well, I think it can, but still subject to our constitutional limitations.

Unknown Speaker: Political considerations must be those which favor the Indians.

Mr. Allen V. Bowles: I think it has to benefit the Indian if our purpose in having the power and authority over the Indian is to protect them and to benefit them.

Unknown Speaker: If the transfer is to the federal government, but not if it was transferred to a tribal authority.

Mr. Allen V. Bowles: They will be self-governing at that point whether the federal having the power and authority over them.

Unknown Speaker: No, but it will all be subject to the ultimate federal statutory scheme, I suppose it would be dependent on that on the last analysis even if they was transfer of jurisdiction to a tribe, is what I am saying, you see this would be primary acceptable even though it might prejudice a particular Indian defendant that you do not find it acceptable the transfers from the State to them.

Mr. Allen V. Bowles: I think it depends on what way we are going to go and there seems to be a lot of fluctuation throughout the years as far as dealing with the Indians is concerned.

Are we going to recognize their sovereignty as much as possible or are we going to continue the wardship doctrine and to their benefit to take more rights away from them by furthering legislation such as expanding 18 1153 from the original seven Major Crimes to a larger number that we now have?

So we keep eroding their sovereignty by assuming more jurisdictions over them and actually taking away their sovereignty whereby our process and what is recognized in Williams v. Lee in 1959 case, the Congress has followed a policy calculated eventually to make all Indians full pledged participants in American Society and it contemplates Criminal and Civil Jurisdiction over Indians by a State ready to assume those burdens, as soon as the educational economic status of Indians permit the change without disadvantage to them.

Unknown Speaker: But the fact is that the Congress has over the years followed a variety of quite different and consistent policies in different areas, has it not?

Sometimes it is very sharp.

Mr. Allen V. Bowles: That is correct Mr. Justice.

Unknown Speaker: Back in the 50s there was a policy of assimilation and by the 60s there was a policy of protecting the identity of separateness of the Indians, was it not?

Mr. Allen V. Bowles: But whether or not it is acceptable as a question earlier for the jurisdiction be left to the tribal council, I think hence on how we are going to go one way or the other and recognizing sovereignty or taking away (Inaudible).

Unknown Speaker: (Inaudible) is quite an inconsistent; it is the inconsistency and the concepts of treating an Indian tribe as a quasi sovereign nation like England or France on the one had and treating Indians as wards of the State who need protection on the other that is a quite an consistent policy and yet each has been reflected in the actions of Congress and in the decisions of this Court over the years.

Mr. Allen V. Bowles: That is correct, I would agree with that.

One other case that I would like to mention here is the US v. Cleveland case which is was a Ninth Circuit case decided in 1974 and in that case there was a difference in treatment between Indian and non-Indians defendants based on whether he was an Indian or non-Indian and also both parties, whether Indian or non-Indian defendants were tried under federal jurisdiction.

As the Ninth Circuit has held on this case, the government should not be allowed to do through a procedural matter what they are not allowed to do through a sustentative matter such as was the case in United States v. Cleveland case in the Ninth Circuit and it is of course again pointed out to one essential element as being of the Indian blood in order to fit into the jurisdictional scheme which applies a different standard to the defendant in this case than it would been have had that defendant been a non-Indian.

So, if we were to ask that the Court in this case affirm the Ninth Circuit’s opinion, finding that this is a racial classification in that the guardianship interest that the US Government has in the Indian, in the Indian nation, especially in the State of Idaho and the Coeur d’Alene Tribe and Coeur d’Alene reservation is not benefited by the 18 1153 statutory scheme which brings the Indian under federal jurisdiction and the felony murder rule.

Thank you.

Chief Justice Warren E. Burger: Thank you, counsel.

Do you have anything further Mr. Frey?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: A couple of points, Mr. Chief Justice.

First, I think I should say with respect to the question of Mr. Justice Stewart asked, if I left the misimpression I apologize, but it is our view that the Mohican Indian if he is a member of the tribe, if he is a tribal Indian --

Unknown Speaker: Of the Mohican tribe in New York.

Mr. Andrew L. Frey: The Mohican tribe would be subject to Federal Indian Country Jurisdiction.

Unknown Speaker: But if he is a non-tribal Indian living in Chicago?

Mr. Andrew L. Frey: If he is not a tribal Indian, if he is --

Unknown Speaker: Then he would not be an Indian within --

Mr. Andrew L. Frey: Wherever he lives, if he was a member of a terminated tribe, I think the Klamath Indians for instance were terminated by Congress, it does not exist as a tribe anymore, he is racially an Indian.

He is not an Indian for purposes of the statute, but the case is not quite as easy for us, as your question.

Unknown Speaker: But the Mohican Indians in New York building those high skyscrapers, they do not need any help from the federal government?

Mr. Andrew L. Frey: Well, they are not necessarily Indians.

The question is not simply whether the tribe exists, but whether these people continue to be members of the tribe.

Unknown Speaker: They live right in New York City.

Mr. Andrew L. Frey: Well, but Congress has made a judgment which involves some, when you draw a line they are going to be some individual instances on one side of the line where you might feel it unnecessary.

Unknown Speaker: He own the reservation.

Mr. Andrew L. Frey: They do not have to live on the reservation.

The fact is that they can live off the reservation, but they may still be getting benefits from allotments, trust payments and other kinds of benefits that derive from their status was a tribal Indians.

They may still be tribal Indians even if they do not live on the reservations.

Unknown Speaker: The offence has to be in Indian Country.

Mr. Andrew L. Frey: Has to be in an Indian Country.

That is correct.

Unknown Speaker: Mr. Frey, I have to confess.

I do not quite understand the importance of this fact that there is some Indians against whom that if you call it discrimination does not apply.

Would your case really be any different if all Indian were subject to the same definition?

You would make the same argument.

Mr. Andrew L. Frey: We would still make all but one argument.

Unknown Speaker: But you cannot say that discrimination on the race which would normally be bad would be saved by the fact that there was some members of the race were not victimized by discrimination?

Mr. Andrew L. Frey: Well, but it is a question of whether you characterized it as truly being a racial discrimination in this Court as recognized by Mancari for instance that it is a political not a racial.

Although, it overlaps with the racial group and I think it is important because I think what is happened in this case the reason we lost in the Ninth Circuit is that Ninth Circuit was engaging in this kind of characterization by label.

They classified the case as a racial discrimination case.

Now, we say well it does not matter even if it is, but we also say that it is not a racial discrimination.

Unknown Speaker: Of course it is true then we have to face the fact if this defendant were of any other race, he would be subject to different jurisdiction.

Mr. Andrew L. Frey: If he committed this particular...

Unknown Speaker: Unless he is (Inaudible), if it changes race then you get a different result.

Mr. Andrew L. Frey: Well change his status.

Unknown Speaker: You change the victim’s race and you come back to this result.

Mr. Andrew L. Frey: Well, that is true but if you just make one change maybe the race of the defendant, but you do not have to change his race.

All you have to do is change his --

Unknown Speaker: Or you should make other changes, but if you make that change and no other.

Mr. Andrew L. Frey: No, but you could take a person who is still an Indian, but who is --

Unknown Speaker: But if this defendant were of the different race the result would have been different and all other facts the same.

Mr. Andrew L. Frey: Well, but that does not necessarily mean...

Unknown Speaker: But we must acknowledge that to be true.

Mr. Andrew L. Frey: I agree that if this defendant were a non-Indian whether that is racial or political I do not know, but if you were non-Indian he would have been tried in State Court.

Now, with respect to the point.

Unknown Speaker: Mr. Frey, you never have disputed that.

Mr. Andrew L. Frey: No, we do not dispute that.

We do not think there is anything wrong with that.

Unknown Speaker: You concede a while ago that there was a racial over tone here, but I take it your position is it if there is a racial discrimination that is benign.

Mr. Andrew L. Frey: Well, it is certainly at least neutral, but I do not think it has to be benign, it is neutral and it is in further interest of Congress’ responsibility and I find the notion in referring to the Cleveland case Mr. Bowles talked about what the Court of Appeals said, I find the language of the Court of Appeals quite extraordinary.

The Court of Appeals said, the government should not be permitted to accomplish their discriminatory jurisdiction what it cannot do through discriminatory statutory coverage.

To hold otherwise would allow the government to run rush out over the Fifth Amendment in the name of jurisdictional sacrosanctity employing jurisdiction as in violate tool.

Well, the Ninth Circuit is talking as though Congress set about to decide how it could be discriminate against the Indians and impose burdens on them that are not imposed on non-Indians and decided to use the mechanism of jurisdiction, nothing could be further from the truth in this case and I think that concept that the Ninth Circuit apparently has just has no place in this area.

Now, Mr. Justice Marshall raised a point when Mr. Walker was arguing about the effect of the decision on State proceedings and I like to emphasize that in my view the same rule would apply if you had a non-Indian defendant and he were tried in State Court for an offense committed in the Indian country against a non-Indian victim.

I do not see why he would not have the same argument any lenient features of Federal Law he would be entitled to, so that the decision impacts is not only on the administration of federal criminal justice, but also in the administration of state criminal justice.

We also do not say as Mr. Walker suggested that the only way that the Congressional tribal responsibility towards the tribes can be furthered by federal jurisdiction.

What we say is what this Court said in the Sever (ph) Case that rests with Congress to determine when guardianship relation shall cease.

Here Congress is determined that on the Coeur d’Alene Indian reservation it shall not cease and federal jurisdiction shall be maintained.

One other point, we do not believe that the wardship or trust doctrine requires leniency.

This notion that a benefit to the Indians is to select out the most lenient features of two legal systems or the notion that Congress cannot benefit the Indian interest by applying a coherent body of federally established law seems to be mistaken and there are after all Indians living on the reservation besides these respondents and their rights and interests are also affected by the disposition that is made of the respondent’s criminal activity.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.