OLIPHANT v. SUQUAMISH INDIAN TRIBE
Argument of Philip P. Malone
Chief Justice Warren E. Burger: We will hear arguments first this morning in 76-5729, Oliphant against the Suquamish Indian Tribe.
Mr. Malone, you may proceed whenever you are ready.
Mr. Philip P. Malone: Mr. Chief Justice and may it please the Court.
On behalf of the petitioners Mark Oliphant and Daniel Belgarde, Attorney General Gorton and myself will divide arguments of first impression before this Court in the history of United States, that is as Indian tribe inherent governmental criminal police powers over non-Indian persons, citizens of the United States for their actions occurring within the boundaries of an Indian reservation.
I will first discuss the facts and then argue the issues involved under the Fifth and the Fifteenth Amendment of the United States Constitution and the Indian Civil Rights Act of 1968 which protects the privileges, rights and freedom of the petitioners as non-Indians, non-members of the tribe from the exercise of such powers claimed by the respondents in this case.
Justice William H. Rehnquist: Counsel what basis do you rely on for Federal Jurisdiction in this case?
Mr. Philip P. Malone: The federal jurisdictions in this case, in federal district court constitution, habeas corpus.
Justice William H. Rehnquist: Of what particular statutory grants of jurisdiction for the federal district courts do you rely on?
Mr. Philip P. Malone: Indian Civil Rights Act, excuse me,Your Honor Indian Civil Rights Act.
Justice William H. Rehnquist: I do not mean neither statute so it is the Indian Civil Rights Act?
Mr. Philip P. Malone: Indian Civil Rights Act, primarily.
Justice William H. Rehnquist: When you say primarily, is there something else that is secondary?
Mr. Philip P. Malone: Well also, that main, not secondarily, but there is a right from the United States constitution for petition of writ of habeas corpus which --
Justice William H. Rehnquist: And to whom may that be. Do you not have to be in custody either in a federal or state commitment in order to rely on that?
Mr. Philip P. Malone: Yes, that is correct.
Justice William H. Rehnquist: You contend that your client was in custody under either federal or state commitment in this situation?
Mr. Philip P. Malone: He was for a period of time, then he was released on his personal recognizance.
Justice William H. Rehnquist: When he was detained by the Indians is it your contention that it was the same as if he had been detained by the Federal Government?
Mr. Philip P. Malone: Yes, Your Honor.
The Port Madison Reservation is located entirely within Kitsap County, Washington, approximately 10 miles across the waters of Puget Sound from downtown Seattle.
Among the public services provide by the county and the state for the reservation as in any other area, not within the Indian Reservation are schools, roads, public utilities, fire protection, social and health services and law enforcement.
The Suquamish Tribe provides no service as such to non-Indians except the police protection and law enforcement of tribal laws that are claimed in this case.
The reservation is similar to the Pearl River Indian Reservation (Ph) with which this Court I am sure is familiar.
The land area of the reservation is approximately 7,300 acres.
Two-thirds of that land is owned by non-Indians and some Indians in fee and that is subject to local taxes for payment of public services.
One-third of the land approximately is individually owned, a lot of land with title held in trust by the United States for the protection of those individual Indian allottees and it is exempt from taxation and I may note to make a distinguishing factor of these allotments arose here primarily under the Treaty of Point Elliott.
Justice Byron R. White: These days, is there any termination date on the trust property?
Mr. Philip P. Malone: No, there is not.
Justice Byron R. White: There used to be.
Mr. Philip P. Malone: There used to be.
There was contemplated a termination date and as I understand Congress extended that period.
Justice Byron R. White: Indefinitely.
Mr. Philip P. Malone: Indefinitely.
In 1973, the time of the Oliphant incident, the tribe had leased to a non-Indian corporation with approval of the United States, the last remaining unoccupied, unallotted trust lands on the reservation and all that there was a portion known as the Ball Park and that is where the Oliphant incident took place.
As of 1973, only 50 adult and minor tribal members lived on the reservation or inter-dispersed in residential areas among in approximately non-Indian residential population of 3,000 people.
No distinct community occupying any certain area existed anywhere on the reservation in 1973.
In 1965, a total enrolled membership of 112 tribal members entitled to vote in tribal elections, fifty-six members elected and adapted a constitution for the tribe as authorized by the Indian Reorganization Act of 1934 and approved by the Secretary of Interior.
It provides for a limited powers of government by a General Council and in a Tribal Council.
Franchise to vote is in the General Council and through an election by the members they also elect pastors in the tribal counsel.
The limitation on voting and membership is that they must be 1/8th Indian Blood and generally 18 years or over.
The Tribal Council as such is the executive branch of the General Council.
Because of the limited executive powers of the tribal ordinances that is governing the Indians in the constitution which restricts in effect the executive body to regulate in hunting and fishing and shell fishing, ordinances may be promulgated through via Tribal Council provided the Secretary of Interior approves.
Therefore, the most recent ordinances relevant to this case have been passed by a General Council of all of the eligible voters and members of the tribe.
In July 1973, members of the General Councils for the first time in the history the tribe adapted a law and order code asserting tribal territorial jurisdiction as an Act, Code of self determination overall Indians and non-Indians in their lands within the reservation.
The code was not approved by the Secretary of Interior.
Tribal crimes are defined in the code that includes not only major offenses and not only minor offenses, but also major offenses.
Amongst all major offenses are assaults, burglary, theft, and rape.
At the same time, the code provides the tribal courts established in the code do not have jurisdiction over offenses within the Major Crimes Act of the United States.
Since the Major Crimes Act applies only to offenses by Indian offenders, the tribal court therefore, has jurisdiction under the code only over non-Indians, but not Indians for those major tribal offenses as defined in the law and order code.
The code established a judicial system for the first time in the history of the tribe providing for a tribal court and appellate court, where judges are the same.
They must be tribal members and have no further education qualifications than having graduated from high school.
Their salaries are paid from funds in the United States.
At the same time we note that the members of the jury by a recent enactment of the tribe must also be members of the tribe and by being members of the tribe that means they must have 1/8th Indian Blood or more.
In August of 1973, Mr. Oliphant, a non-Indian residing on the reservation when the alleged violation took place by him on the reservation.
For years prior to 1973, a local American legion had sponsored this event.
It was known as Chief Seattle Days and they also took place generally in this Ball Park area.
This was where the incident took place in the Oliphant case.
At that time, Mr. Oliphant became involved in altercation with campers on the Ball Park that were attending that event.
The record does not indicate that the campers involved in altercation with him were tribal members.
He was arrested and charged by newly appointed tribal police officers, not for the altercation with the campers, but for assaulting one of the police officers in resisting arrest.
Due to lack of jail facilities, he was then imprisoned in the City of Bremerton Jail off the Reservation for five days.
Pursuant to contract that have been made by the Federal Government with the City of Bremerton for the benefit of the tribe and the jailed prisoners of the tribe.
Justice William H. Rehnquist: So the offense really, he was charged with an altercation between himself and the Indian tribal policeman?
Mr. Philip P. Malone: He was charged with resisting an arrest and assaulting one of those police officers.
Justice William H. Rehnquist: Who was an Indian tribal policeman?
Mr. Philip P. Malone: Yes.
Unknown Speaker: Mr. Malone, what is the size and composition of the total judicial grants of the tribe.
I understood you to say only 53 members reside within the reservation.
How many of the members of the judicial branch and what are their positions.
How many judges for example?
Mr. Philip P. Malone: There are two judges.
Unknown Speaker: How many police officers?
Mr. Philip P. Malone: At the time, there were a number of appointed deputies and at the present time I think there are three or four police officers.
Unknown Speaker: Do they have a courthouse and a clerk and what establishment?
Mr. Philip P. Malone: They have appointed a clerk.
The courthouse was in a Belgarde case was a barbershop.
Unknown Speaker: And they have a jail?
Mr. Philip P. Malone: No jail facility.
Unknown Speaker: Where do they incarcerate?
Mr. Philip P. Malone: They held Mr. -- during the period of time after the arrest they held Mr. Oliphant in the local office, a tribal office in a back room.
Unknown Speaker: Who pays for all of this?
Mr. Philip P. Malone: The United States.
Part of the funds, as I understand, part of the funds, tribal funds are raised, one from the lease in the land and also from the operation of cigarette store and --
Unknown Speaker: And how are the judges chosen, are they elected or --?
Mr. Philip P. Malone: As far as law and order court it says by appointment.
So I assume that the executive branch of the tribe, the Tribal Council appoint judges and as I understand the executive branch is a chairman, four people, vice chairman and so on.
The point of through that, I know of no restrictions otherwise.
Mr. Belgarde also, a non-Indian, residing on the Reservation in 1974 when he was arrested by the tribal police.
He was driving his automobile on the public highway at the time tribal police cars took pursuit of him.
A roadblock was set up by those police on a public highway, on non-Indian land, within the reservation to apprehend him.
Belgarde’s case, his car collided with one of the police cars and he was arrested and charged with recklessly endangering a police officer and damaging the police car.
He again was jailed some 50 miles --
Unknown Speaker: That police car was again owned by the tribe I take it?
Mr. Philip P. Malone: I can answer for certain because the exact words of the charge is a public car and that I believe there was a contract with United States Government for supplying of police vehicles and whether the title of that police vehicle was in the United States Government or in the tribe, I am uncertain.
Justice Thurgood Marshall: Was it not fairly marked as a police vehicle?
Mr. Philip P. Malone: Yes, it was.
Justice Thurgood Marshall: And this man was running away from a police vehicle?
Mr. Philip P. Malone: That would be a matter of interpretation.
Justice Thurgood Marshall: Well, he run into then, did he not?
Mr. Philip P. Malone: He would not run away from them, he ran into them.
Justice Thurgood Marshall: He ran into them, that was worse?
He was not trying to escape when he ran into them or did I misunderstand what you said?
You said they were chasing him?
Mr. Philip P. Malone: Yes, pursuit is taking place.
Justice Thurgood Marshall: And in doing the pursuit, that is a good word, he run into them?
Mr. Philip P. Malone: A roadblock then had taken place. He perused to take --
Justice Thurgood Marshall: Did he run into a police car or not?
Mr. Philip P. Malone: Yes.
Justice Thurgood Marshall: He did?
Mr. Philip P. Malone: Yes.
Justice Thurgood Marshall: And it was clearly marked?
Mr. Philip P. Malone: Yes.
Well in short, looking at the constitutional situations here we have a tribal government that may be characterized as governing all the non-Indians on the reservation, by some Indians and four some Indians with that system subsidized by the federal government.
This then leads to the constitution problems involved in this case.
I would first bring these problems in perspective.
My clients and a number of non-Indians have no immediate interest in voting in Suquamish General Council.
Their immediate interest is to be free from the tribal laws and their enforcement promulgated without their consent.
They do not want to be subject to independent tribal powers over which they have no control except with resort to the judiciary, but if they maybe not left alone, if they are to be subject to tribal criminal code, then the best choice would be that they would have the right to vote which I believe and argue that they have under the constitution.
This would mean in effect if non-Indians were entitled to vote, the very purpose of the claimed powers here or self determinations of tribes would end on such reservations as a Port Madison Indian Reservation.
But if the choice has to be made for their freedom, they would desire the choice and power and ability to vote.
Justice William H. Rehnquist: The effect would be quite different in the Port Madison Reservation on the one hand which your client came into contact with than the reservation like the Navajo Reservation which is 20,000 square miles, largely populated with Indians, would it not?
Mr. Philip P. Malone: It would be startlingly different.
Unknown Speaker: And that prompts me to ask Mr. Malone, whether whatever principles are forthcoming in this case that you feel should apply to all Indian reservations?
Mr. Philip P. Malone: I believe that qualifying my statement is that first to have powers, you should have a community that you should represent, that is not in this case.
Unknown Speaker: But it is not the case later in the week involving another host, are you familiar with that case?
Mr. Philip P. Malone: Yes, I am to a certain extent.
I would say that as part of the constitution, the constitution principles apply here.
They apply to the Navajo Indian Reservation, if they are surely similar claims over non-Indians.
Unknown Speaker: Well then, some of the facts are not particularly important though?
Mr. Philip P. Malone: That is true.
Justice Byron R. White: Unless that it were possible that there would be a difference between a crime committed on a trust property and off trust property, but still on the reservation or difference between a crime committed against the tribe itself and not against the tribe itself.
For instance, trespass on tribal property.
Do you think the tribe could prosecute somebody for that even though they might not be able to prosecute for assault and for a misdemeanor in some bar somewhere?
Mr. Philip P. Malone: I believe that the powers of the tribe should come from right, should come from the treaty or acts of Congress and not by implication or desire.
That would be the first limitation, so if the treaty -- in certain treaties they do provide powers to exclude, they powers to exclude people from their lands.
Justice Byron R. White: Well, suppose somebody does not exclude, supposing comes on anyway and there is a tribal -- there is a tribal regulation that says anybody who trespasses on our property has to pay $500.00, then what are you going to say?
Mr. Philip P. Malone: I think that becomes difficult.
Justice Thurgood Marshall: It is a little late, is it not, they should have put a restrictive cognizant back in 1600 and --
Mr. Philip P. Malone: I would guess.
Justice Thurgood Marshall: Mr. Malone, I get that you are arguing what should be argued to Congress and not to a Court, now show me that I am wrong?
Mr. Philip P. Malone: Well --
Justice Thurgood Marshall: You said that tribal civil rights, the Indian Civil Rights law, did you not?
Mr. Philip P. Malone: Yes.
Justice Thurgood Marshall: Are you going to get to that point?
Mr. Philip P. Malone: Yes.
Chief Justice Warren E. Burger: Before you address that, what other law enforcement authority was available at the time and place of this incident, what other police officers, laying aside the judges for a moment?
Mr. Philip P. Malone: Well, there has been complete county protection.
Chief Justice Warren E. Burger: (Inaudible).
Mr. Philip P. Malone: Local County Law Enforcement --
Chief Justice Warren E. Burger: Were they there at the scene, at that time?
Mr. Philip P. Malone: They were at the scene at the Belgarde case yes and there were tribal police cars (Inaudible) the Oliphant case that took place.
Well in short, as for the constitution issues involved here, I think they are quiet clear Your Honor.
One is the Fifteenth Amendment of the right to vote.
The Fifth Amendment also protects my clients because of federal action.
Cases have been cited in the briefs.
There is a direct connection between Federal Government and the tribe here.
Justice William H. Rehnquist: Well, is it your contention that the provision for the right of Habeas Corpus in the Indian Civil Rights Act permits one to raise in that writ, rights other than those that are conferred by the Indians Civil Rights Act?
Mr. Philip P. Malone: It reads the right of determine the tribal orders as to the constitutionality of tribal orders, but does that – my --
Justice William H. Rehnquist: Well, I was curios to know whether you thought that the express provision in the Indian Civil Rights Acts granting the right of federal jurisdiction to hear a writ of Habeas Corpus on behalf of someone detained by an Indian tribe permitted that person to raise claims other than those granted by the Indians Civil Rights Act?
Mr. Philip P. Malone: Yes, I believe that the purpose of the Indian Civil Rights Act was to give protection to any person by tribal order of the court and it was not just restricted to those rights in the civil rights act, but Section 8 of the Civil Rights Act in effect is the same in word language as the Fifth Amendment protections.
Justice Thurgood Marshall: But there is nothing in legislation history on that point?
Mr. Philip P. Malone: I have no answer to that as to legislative history.
Justice Potter Stewart: Mr. Malone, you have submitted to us here constitutional plan.
We do not reach those however at all, do we, unless we resolve the statutory issues against you and actually we do not first proceed to canvas these statutory issues and determine whether not statutory issues towards the briefs are largely addressed to determine whether or not the law provides that non-Indian shall be prosecutable on this reservation by the tribe and other Indian law?
Mr. Philip P. Malone: I agree.
Justice Potter Stewart: Here we got, in other words, a cart before the horse a little bit.
I assume your colleague here is going to talk about the statutory issues.
Mr. Philip P. Malone: Attorney General will take that up in statutory issues because there is no inherent sovereignty and the Court holds that.
Obviously we do not have this constitution issues before the Court.
With that if there are no further questions --
Justice Potter Stewart: Mr. Attorney General.
Argument of Slade Gorton
Mr. Slade Gorton: Mr. Chief Justice and may it please the Court.
One remark Mr. Justice Powell on your factual question.
In each case, these petitioners were jailed in state facility, City jails in Bremerton and Port Angeles pursuant to contracts between those cities and the federal government.
Justice Thurgood Marshall: And would be the same if they had been arrested by FBI agent?
Mr. Slade Gorton: Yes sir.
At the outset, it is well the note, the extensive scope of respondents' claim that the tribe has jurisdiction to try non-citizens, in this instance under its laws even though they may not participate in making those laws, derived principally from the tribes retained inherent powers of government which is unlimited except as expressly qualified by treaty or a statute.
Chief Justice Warren E. Burger: There is nothing really unique about that is there Mr. Attorney General?
Mr. Slade Gorton: I believe --
Chief Justice Warren E. Burger: If he crossed the line into the next state, he will be subject to some laws that he has no part in making?
Mr. Slade Gorton: Yes, on a residential basis Mr. Chief Justice.
If he went to Idaho he could become a citizen of Idaho on that day under your decision and then Dun v. Romanson.
For example there is no duration --
Chief Justice Warren E. Burger: I am speaking of a man who just going over to a fair or a football game in the next state?
Mr. Slade Gorton: That is true, but these two persons are both residents of the reservation over which the tribal jurisdiction was asserted.
As a matter of fact, the respondents’ brief offers no source for the power asserted here other than retained inherent sovereignty.
The Solicitor General presents the same broad claim.
The tribal jurisdiction here asserted is an aspect of residual tribal autonomy which can only be last by the terms of the treaty of statute.
Justice Lewis F. Powell: What do we, Mr. Attorney General, I suppose you are going to tell us, but where do we turn to answer that question?
Mr. Slade Gorton: That is exactly where I propose --
Justice Lewis F. Powell: Is it some statute or just some case law?
Mr. Slade Gorton: It is a statute or a treaty.
This Court has rejected the analysis which respondents of the United States present here.
It has never authorized any exercise of Indian Jurisdiction over the personal property of a non-Indian based on the platonic notion of severity, to quote Mr. Justice Marshall on McClanahan.
This Court has upheld Indian claims to tribal jurisdiction over non-Indians only when the authority for the assertion can be found under the specific treaty provision or statute and of course that is exactly the positions which we are taking here.
Justice Byron R. White: Well, has it ever held that it could not be found some place else?
Mr. Slade Gorton: It has always been very careful to avoid basing the finding on sovereignty.
Justice Byron R. White: Then I guess your answer is no.
Mr. Slade Gorton: Yes, my answer is no.
To our knowledge, there have been only three cases in which this Court countenance even a modest claim of Indian jurisdiction over non-Indian activities.
And in each of these cases, the Court used the McClanahan approach, finding the source in either a treaty provision or statute.
In Morris v. Hitchcock in 1904, this court found to be valid legislation of the Chickasaw Nation levying a permit tax on horses and cattle owned by non-Indians, but grazing on Chickasaw land.
The Court found the authority for the tax lay both in the Curtis Act and the treaty under which the Chickasaws has held their lands.
But note, even so, even under those circumstances where they are highly organized the Indian government, the sanction for failure to pay the tax was an expulsion from the reservation by federal officials, not a criminal prosecution in the Chickasaw tribal court.
In Williams v. Lee --
Justice William H. Rehnquist: The Chickasaws are who won the five civilized choice?
Mr. Slade Gorton: Yes, this was Oklahoma while it was Indian Territory.
In Williams v. Lee, this Court prohibited a licensed Indian trader on the Navajo Reservation from suing his Indians debtor in a state court leaving him to pursue his claim if he chose to do so in the Navajo Tribal Court.
The exclusive jurisdiction of that court was found to rest on the 1868 Treaty between the United States and the Navajos and finally in the United States v. Mazurie you validated an explicit statutory delegation by Congress of its power to control on reservation tavern licensing to the resident Indian tribe, but the Mazuries were convicted of the violation of a federal statute in a Federal District Court.
They were not before a tribal court charged with a violation of a tribal ordinance.
Moreover, this consistent view of this Court, the claims of residual sovereignties standing alone are not sufficient grounds to support a claim of tribal jurisdiction over non-Indians has been matched step for step by the Congress and the executive.
In 1834, immediately after the passage of the Trade and Intercourse Act of that year, the Attorney General of the United States expressed his view, the Congress passed that law “on the assumption that under the treaties Indian laws would be applicable only to Indians themselves."
The same opinion takes the position that for such authority to exist in an Indian tribe it must be given by the United States.
No article legislative history of the 1834 Act proceed from any other assumption.
Its clear implication is that either the United States or the tribe might have jurisdiction, but not both.
The Congress elected federal jurisdiction over non-Indians.
In 1854, the Congress reinstated the treaty exception in its present form.
Justice Byron R. White: So are submitting that -- is your submission that Congress has in effect past the statute or several of them that says there is no such thing as retain power?
Mr. Slade Gorton: It is our position that the law of the United States is that the Indian tribes must show their right to try non-Indians either in a treaty (Voice Overlaps).
Justice Byron R. White: I understand your position.
I am just trying to find out where you found the law on that.
You just picked that out of the air somewhere or are you saying that Congress in affect has a statute which says, no retain power and that the tribe may exercise only such powers over non-Indians as you can find in a statute or treaty?
Mr. Slade Gorton: I am stating that the Congress has stated that there is no Indian power to try the non-Indians in these cases. (Voice Overlap).
Justice Byron R. White: You are not just suggesting that Congress has said that there is a law some place that some constitutional principle or what?
Mr. Slade Gorton: I am stating two separate propositions that this Court consistently has held that the Indian powers over non-Indians must be found in treaty or statute.
In addition to that, I am saying that the Trade and Intercourse Acts rather explicitly denied that right and put exclusive jurisdiction over this kind of activity in the United States at the time of those Acts, but the Attorney General of United States at the time of Trade and Intercourse Acts took exactly that position on two different occasions and that the courts of the United States said (Voice Overlap)
Justice Byron R. White: Do you say the same thing about that tribal sovereignty over Indians?
Mr. Slade Gorton: That Mr. Justice White is a very interesting question which of course is not directly involved in this case.
Justice Byron R. White: But can you just answer yes or no, do the cases or the Congress recognized some sort of retained inherent power of the tribe over Indians?
Mr. Slade Gorton: There is only one case in which this Court has even remotely based its decision on the retained tribal jurisdiction even over tribe or members in Talton v. Mayes.
Even there, the power to try the Indians in the first place seems to stem from a treaty.
Whether or not this Court would continue that view even as the Indians I think is a moot question.
Mr. Justice Harlan, the 19th century Mr. Justice Harlan decided.
He might have been as prophetic on that as he was in Plessy v. Ferguson.
In any event, the jurisdiction of the Indians to try Indians maybe found in the Trade and Intercourse Act which explicitly states that the United States in effect recognizes the right of the Indian tribes to try the non-Indians.
Justice William H. Rehnquist: Well, your responses to Mr. Justice White’s question all depend on implication, do they not, that Congress saw fit to confer particular jurisdiction on Federal Courts in certain situations, then on Indian tribes in other situations and if that had existed independently of Congressional action, Congress would have not gone ahead and done it?
Mr. Slade Gorton: Exactly and in addition there is another statutory scheme in connection with these reservations in the State of Washington which I suspect, but do not know, is paralleled in most other western states.
The Sovereignty of the United States over the area which is now the State of Washington under the concepts of sovereignty which have always been accepted in western country, in western civilization in the United States came from explorations beginning with those of Robert Gray and from a series of treaties, the Louisiana Purchase Treaties with Spain and Great Britain culminating in the treaty with Great Britain of 1846 under which we settled the northwest frontier of the United States.
At that point, the United States' claim to the sovereignty over the Washington area was total, absolute and complete.
Moreover, two years later, the United States organized that area into the Oregon territory and the Oregon territory statute says on this subject “Nothing in this Act shall be construed to impair the rights of persons or property now pertaining to the Indians and said territory so long as such rights shall remain unextinguished by treat, rights of person or property.
Now, does this mean that the United States recognized, this is before and even the Indian Treaties were signed, criminal jurisdiction by the Indian tribes over non- Indians unlimited and subject matter in geography except by the borders of the Washington territory, I think that state that questions answers it.
It means exactly the opposite.
That the United States recognized in the Indians no powers except rights of person or property which themselves depended on that Oregon territory statute.
All else was subsumed into the sovereignty of the United States.
In 1854, when the Trade and Intercourse Act was passed in its present form, at least for the purposes of this argument here today, the United States withdrew from Federal Jurisdictions a certain authority to prosecute both Indians and none Indians where a tribe held exclusive jurisdiction and I am quoting now “by treaty stipulations.”
Later in that same year, 1854, in full knowledge of this provision, the United States presented the treaty of Point Elliott to this Suquamish Indians.
That treaty contained no treaty stipulations conferring exclusive jurisdiction over non-Indians to the tribe.
And the next year, in 1855, the Attorney General of the United States re-stated his early opinion that Indian tribes may receive jurisdiction over non-Indians only from Congress.
In 1878, a Circuit Court at Ex-party Canyon held that the Federal Statue limited tribal court jurisdiction to offenses by Indians against Indians.
Now, from that point on, 1878, at the latest, the judiciary, the Congress and the executive were in complete agreement.
As late as 1970, the Solicitor of the Department of the Interior adhered to the same conclusion.
Indian tribes do not have criminal jurisdiction over non-Indians.
True that opinion was withdrawn in 1974, but not until the Solicitor General’s brief in this case has the federal government ever expressed a contrary review.
Now, what has happened as a result of that view, in reliance on these consistent longstanding views, literally tens of thousands of United States citizens had purchased land and settled on Indians Reservations in full confidence that they have not waived their rights to self-government and to participation in the administration of their criminal justice systems.
It seems to us far too late on the day now at least in the absence of a clear declaration of congressional intent to the United States to tell these citizens that it was wrong and that they are in the situation of any one living in a foreign country “precisely the extraordinary submission of the Solicitor General in this case.”
Not only a foreign country, but a foreign country in which they can never become naturalized citizens.
These citizens have not chosen to live in a foreign country and they do not do so now.
They live in the United States and they are subject to its laws.
Justice Potter Stewart: How about the -- most of your argument as I have understood it would lead to the conclusion that the government does have jurisdiction over these people.
It is not your state, the State of Washington, but rather the United States of America under 18 U.S.C. 1151 and the rest of your argument.
I suppose the issue here is whether or not the Indian Tribe has jurisdiction and we do not necessarily need to decide if it does not, who does?
Mr. Slade Gorton: Precisely Mr. Justice Stewart.
I am not --
Justice Potter Stewart: The amicus brief as you know, suggests that we even defer argument in this case until we decide whether or not we are going to take the Yakama case?
Mr. Slade Gorton: But I do not believe that you need to do that.
I am not here as the Attorney General of the state arguing for state jurisdiction.
I am here arguing against this assertion of jurisdiction under the McBratney exception if the crime does not involve Indians, the original crimes of this case is the altercation of the Ball Park, are clearly under state jurisdiction without regard to Public Law 280, but if they are under state jurisdiction then they are under federal jurisdiction.
Justice Thurgood Marshall: Mr. Attorney General (Voice Overlap)
Justice Potter Stewart: Then your submission is --
Mr. Slade Gorton: Absent Public Law 280 --
Justice Potter Stewart: We do not need to decide in order to decide in your favor who does have jurisdiction?
Mr. Slade Gorton: No, you do not.
Justice Thurgood Marshall: I think I misunderstood you.
Did you say that Congress could give Indians this right?
Mr. Slade Gorton: The Congress at least has to try before they can validly assert it.
Whether Congress can constitutionally give the Indians this jurisdiction is another point which was at least (Voice Overlap)
Justice Thurgood Marshall: And you would concede that?
Mr. Slade Gorton: I do not concede that.
In our view whether by statute or by constitution, tribal self government ends where the common self government of all citizens begins.
May I reserve the balance of my argument.
Justice William H. Rehnquist: Let me ask you one question General Gorton.
Your argument would apply equally I supposed to the 20,000 square miles of the Navajo Reservation as some person driving from Phoenix to Denver and spending about 120 miles on the roads going through that reservation?
Mr. Slade Gorton: It would have a very substantial impact on that situation.
I cannot tell you that it would govern in because there are at least two differences between this and that situation Mr. Justice Rehnquist.
The first is that the individual whom you posited is not a resident and therefore it does not have any right to self government and secondly the Navajo Treaties may be different from the treaties with which we are dealing here, that jurisdiction may have been given to the Navajos by their treaties.
I just do not know the answer to that question.
Chief Justice Warren E. Burger: Mr. Ernstoff.
Argument of Barry D. Ernstoff
Mr. Barry D. Ernstoff: Mr. Chief Justice and if it please the Court.
The case before you I consider to be basically a fairly routine except of course for the novel legal questions behind that law and order case.
The only question really is and I think the last series of questions pointed this out who is going to have what we call misdemeanor jurisdiction over all persons of an Indian Reservation.
The alternatives at this point as far as the law stated is the tribe or the federal government and I would pose that any federal judge sitting in any of the federal courts around this country who was told that he was going to have to have in his courtroom all the belittling offenses, failure to stop for a stop sign, failure to signal for turn that he would have to be prosecuting those on the (Inaudible) Crimes Act which is what the US Attorney would have to do would tend to agree with the position.
Justice William H. Rehnquist: Well, the ones in the Sixth Circuit are not crazy about prosecuting a black lung cases either I take it?[Laughter]
Mr. Barry D. Ernstoff: I would presume so Your Honor, but the question, I think is a serious question in the matter of federal judicial policy aside from the legal issues that are involved.
Justice Thurgood Marshall: And what do you do about all the army camps?
Mr. Barry D. Ernstoff: With the army camps sir, my understanding is there is a system of military justice as well as the federal courts.
Justice Thurgood Marshall: Some Federal Magistrate is there?
Mr. Barry D. Ernstoff: A Federal Magistrates is used.
Justice Thurgood Marshall: For the Federal Magistrate here?
Mr. Barry D. Ernstoff: Well, perhaps but thus far I can tell you at least in Seattle.
I am sure that the Chief Justice has heard everyone complaining about not enough Federal Judges and Federal Magistrates that does not seem to be a great deal of con available.
Justice Thurgood Marshall: But none of this would settle this case, will they?
Mr. Barry D. Ernstoff: That is correct Your Honor.
I think the more important is to understand really what the case is about in terms of the treaties and the agreements between Indian Tribes and United States.
And perhaps I am trying to attempt to make this too larger case for what seems to be a relatively minor issue in terms of the offense.
But that is one of the treaties do and I think it is important for the Court to understand this.
The treaties established what ought to be the final homeland for Indians in this country.
Anyone who is knowledgeable about Western history, certainly in our state knows, that Indians basically roam throughout the state and agreed there were no wars in the State of Washington.
They agreed basically to cede land to the United States Government in exchange for being given their reservations as a homeland.
Now, I acknowledge that because of the United States Government, the federal government, there is an anomaly today and that is that these Reservations, non-Indians were allowed to settle on whether to the General Allotment Act or through treaty provisions which in this case is what prevails.
The allotments, the assignments of land were made to the treaty, not the General Allotment Act or whether through the opening up a reservation to settlement.
The question remains now is how is this anomaly going to be dealt with.
I am the first to acknowledge that I think an important question the fact that people living within the reservation cannot participate in tribal government, but the question remains then which way does one go?
And it seems to me that the danger to American Indian Policy and to the promises of this government in telling Indian Tribes that in choosing between these, because of this anomaly, these two alternatives that we have chosen basically to eliminate any control you might have on your reservation over non-Indian trespassers or other committers of minor offenses is the wrong way to go and is really going to harm.
Indian interest and the interest of this Court has upheld in previous cases, in recent cases much more than the harm that might be done to the non-Indian who I admit is in an unfortunate situation.
I think that the question that was asker earlier by the Court about should you not be arguing to Congress about this is the proper question.
This Court has always held that Congress is the place to determine how jurisdiction should be allocated among states, federal government and in Indian Tribes and in fact Congress has taken this challenge since this case began in the District Court.
Congress established an 11-man commission, the American-Indian Policy Review Commission to investigate over a period of two years over extensive congressional commission investigation, matters of jurisdiction on Indian reservations and to come up with legislative solutions and that report was issued, this is in the brief Was issued in May of 1977.
There were six members of Congress on the Commission and five Indians on the Commission, Indian leaders and that commission said that they find that not only as a matter of law do they consider that Indian tribes have jurisdiction over non-Indians, but because of the heinous situation in most Western States about local law enforcement from counties and states that it is necessary and is a cataloging of all the problems.
Justice William H. Rehnquist: You do not think this is an Act of Congress, do you?
Mr. Barry D. Ernstoff: No.
What I am suggesting though is that the answer to the question should not Congress be dealing with this is correct.
That is where this ought to be happening not in this Court.
Justice William H. Rehnquist: But the fundamental difference between you and your opponent is who has the burden of proof with Congress as I understand it.
Your opponents say unless Congress has conferred jurisdiction on the Indian Tribe, they do not have it and you say unless Congress has taken it away, they do have it and I do not see how this report really moves the ball one way or the other?
Mr. Barry D. Ernstoff: It does not.
One hopes that legislation will come to this and it was just my position that a legislative framework, a legislative solution which takes great deal time, a lot of discussion and much testimony to decide how to deal with these problems as a much better solution than this Court having to deal with the problem in terms of exacting definitions.
Justice William H. Rehnquist: But this case is here now, not five years from now?
Justice Thurgood Marshall: That all could have been handled by not arresting these men?[Laughter]
Mr. Barry D. Ernstoff: That brings up the problem of the facts Mr. Justice Marshall.
Justice Potter Stewart: Well, before we move on, this is not just a matter of legislative solution, if there is anything in the constitutional claims made by your opponent because even though your position were clear as a matter of legislation or treaty, we still then would have the constitutional claims to deal with would we not?
Mr. Barry D. Ernstoff: That is correct.
Justice Potter Stewart: With Fifth Amendment claims and for example a jury trial?
Mr. Barry D. Ernstoff: There is a right to a jury trial under the Indian Civil Rights Act.
Justice Potter Stewart: And for these offenses?
Mr. Barry D. Ernstoff: For these offenses.
Justice Potter Stewart: And how many eligible jurors are there?
Mr. Barry D. Ernstoff: At this point, the numbers of eligible jurors are the members of the tribe.
Justice Potter Stewart: Well, not even all members of the tribe.
I assume some of them are children, are they not?
Mr. Barry D. Ernstoff: That is correct.
Justice Potter Stewart: So how many, a couple of dozen eligible jurors?
Mr. Barry D. Ernstoff: I think Your Honor these points out a very important point and that is --
Justice Potter Stewart: Well, in which sense would you answer the question?
Mr. Barry D. Ernstoff: When these problems come up, the answer to the question is it is very possible for instance that the lack of non-Indians under the near to be selected for the jury is in fact impermissible under the Indian Civil Rights Act.
Justice Potter Stewart: You would have about the same jury in every case, would you not?
Mr. Barry D. Ernstoff: The point I am making is that that is exactly (Voice Overlap).
Justice Potter Stewart: Would you answer my question?
Mr. Barry D. Ernstoff: The answer is yes.
At this point, the near is very small.
Justice Potter Stewart: And none of the jurors would be of the same ethnic background as any of this defense?
Mr. Barry D. Ernstoff: That is correct and it may be impermissible under the Indian Civil Rights Act.
It is up to the federal court to determine that and has not yet been determined.
What I am saying and this is what Court said, in the United States v. Mazurie.
There is a protection for non-Indian residents of Indian Reservations.
Since 1968, there has been the Indian Civil Rights Act and these petitioners had no problem invoking that act in attempting to get review on what they consider to be the violation of their statutory right.
Justice Potter Stewart: Yes, those are statutory rights, but American Citizens have constitutional rights, do they not?
Mr. Barry D. Ernstoff: American Citizens have constitutional rights, but most constitutional rights of the first 10 amendments are rights against the state government and against the federal government.
This Court in 1897 of Talton v. Mayes held that those constitutional rights, the bill of rights does not apply to the actions of Indian Tribes.
Justice Potter Stewart: Exactly, and therefore, these defendants are deprived of their constitutional rights that are accorded to most American Citizens, if not all others?
Mr. Barry D. Ernstoff: It is a matter of definition.
If one does not have a constitutional right, and this Court has determined that, one is not being deprived of it.
Justice William H. Rehnquist: Well, if you remember of moose latch and a grand master latch up in a men’s room overnight you are not being deprive of any constitutional right, are you?
Mr. Barry D. Ernstoff: No.
The question being presented here, I think it is important that this be understood too is not one of exclusive jurisdiction by the respondents.
We are talking about here about that gap in law enforcement that occurs when the only jurisdiction to be able to deal with misdemeanors on the reservation is the federal government and the Federal Government I can tell you and there is a history of this in the American Union Policy Review Commission Report, the federal government has not been able to deal with minor offenses on Indian Reservations for a very good reason.
Indian Reservations are generally far from Urban Centers.
I can tell you as attorney for the tribe how difficult it is to get the FBI to come out to an Indian Reservation to investigate something other than a major crime.
So the question is not one of, does this tribe have jurisdiction and no one else.
Question is one of misdemeanor concurrent jurisdiction.
I think it is important to realize in the history of the cases since 1973 when this case started that there are almost no if any cases in any other Indian Reservations dealing with jurisdiction over non-Indians and I think it is important question.
Many tribes in the amicus brief show this or exercise in such jurisdiction.
Several tribes have had thousands of non-Indians before their courts and not one of them has filed a habeas corpus action.
I think that there is an alarmist attitude on the part of the Attorney General about what harm are going to be done.
For the most part, the system has worked out quite well.
Justice Thurgood Marshall: Are not those constitutional rights were individual and did not depend on how many people exercised it?
Mr. Barry D. Ernstoff: Not at all, I am merely pointing out as matter of policy.
Justice Thurgood Marshall: Do you agree with that?
Mr. Barry D. Ernstoff: I do agree with that.
It is a matter of policy.
Justice Thurgood Marshall: What do we have to do with policy?
Mr. Barry D. Ernstoff: Well, the attorney general has raised the questions of what I consider to be policy on what way the misdemeanor jurisdiction should be decided and what is going to happen to the citizens, the residents of these reservations and I am really countering that to show that in fact nothing serious has really happened to cause any federal court anywhere to come down on Indian Tribe that is exercising that jurisdiction.
Justice Potter Stewart: Do you think that somewhere in the federal law system you will find some authority for the Indian Tribe to exercise the jurisdiction that you claim they have?
Mr. Barry D. Ernstoff: Yes, I do Your Honor.
Justice Potter Stewart: And where do you find it?
Mr. Barry D. Ernstoff: Mr. Gorton attempted to say that this Court has never decided this decision before and the answer is yes, if you had, we would not be here today, but this Court has decided other cases that come close to the issue or deal with analytical matters that would come under that issue.
Let us take United States v. Mazurie decided two years ago.
Clearly, it was a delegation case.
Can the United States Government delegate the power of liquor to an Indian Tribe?
Well, Mr. Justice Rehnquist in writing the opinion does not really rely on the question of delegation because he notes that in order to delegate a power, the body gets receiving it has to have some sort of independent power over the matters at hand.
And in United States v. Mazurie decided two years ago, this Court held that Indian Tribes are unique aggregations, possessing attributes of sovereignty over both their members and their territory and use that analysis to determine that in fact the tribe could decide whether or not the Mazurie is non-Indians on fee pattern land could sell liquor.
I acknowledge it was a delegation case.
It is a matter federal prosecution, but the analysis is really the same.
Do Indian tribes posses these attributes of sovereignty over their members and their territory?
Justice William H. Rehnquist: But to say that a tribe possesses an attribute of sovereignty, does not necessarily possesses all attributes itself?
Mr. Barry D. Ernstoff: That is correct.
Most attributes what we call real sovereignty having given up by Indians tribes.
There is no question about it.
Indian tribes cannot mint money.
They cannot enter into treaties with other nations, but this Court is consistently held that there powers that have not been taken away.
Let me give you an example.
If Mr. Gorton is right and you got to look to some kind of federal statute to determine what powers the tribe got.
Indian tribes would not be able to point to one single treaty or statutory enactment which would justify the exercise of most their powers including powers which this Court has upheld.
Morris v. Hitchcock is a pure case of this Court saying that even though the prosecution was federal because of the federal regulations involved.
Justice Thurgood Marshall: I think, what the attorney general said you either look to a statute or treaty or a decision of this Court?
Mr. Barry D. Ernstoff: That is correct.
Justice Thurgood Marshall: And you are now about decision of the Court?
Mr. Barry D. Ernstoff: I am saying that in Morris v. Hitchcock in 1905 there was no previous decision of this Court.
Justice Potter Stewart: What is it, is it just sort of federal common law?
If this Court holds that a tribe has some residual sovereignty, what authority we got to say that?
Is it a sort of federal common law?
Mr. Barry D. Ernstoff: It is the law of the cases of this Court.
This court has never -- let me give another example.
Justice Potter Stewart: Not based on the constitution or a statute or --?
Mr. Barry D. Ernstoff: It is based under the constitution because the constitution gave the United States, the Congress the power to enter into treaties with the Indian tribes.
So, to the extent that those treaties recognize Indian tribes has having been sovereign nations at one time, it is based certainly on both constitutional provisions and on treaties.
Justice Potter Stewart: So, do you think that the Indian tribes in exercising this power are exercising part of the sovereignty of the United States as well as that of the Indian Tribe?
Mr. Barry D. Ernstoff: I do not think so.
I think Indian Tribes are exercising a sovereignty which is recognized and reaffirmed by the United States.
Last year you had a case here called Fischer v. District Court dealing with adoption involved Indians in Montana and this court held that the tribe in fact had jurisdiction over that adoption.
Now, nowhere could anyone point to any statute, treaty or enactment which gave the Northern Cheyenne Tribe jurisdiction over adoption?
What this Court said was that the Indian Reorganization Act of 1934 which by the way does not at all give any powers to Indian Tribes, it merely recognizes powers was sufficient, a sort of peg upon which that hang your hat and this Court did not point any statutory enactment which actually gave that power to the tribe.
Justice Thurgood Marshall: So your piggyback argument is that where we want to something without power, we are therefore authorized to continue to act without power?
Mr. Barry D. Ernstoff: When you say “we are” you mean the tribe or --?
Justice Thurgood Marshall: The Supreme Court of the United States?
Mr. Barry D. Ernstoff: I am not saying that.
Justice Thurgood Marshall: Is that what you are arguing?
Mr. Barry D. Ernstoff: I am arguing that the Court’s analysis under those cases that Indian Tribes must retain whatever it was they were except that which expressly been taken away by Congress, by treaty or in analysis of this Court has to be viable because if it is not, then Indian Tribes really posses almost no power.
Justice Thurgood Marshall: And you also admit that there is no decision of this Court that says that an Indian Tribe has authority to punish a misdemeanor who is not an Indian?
Mr. Barry D. Ernstoff: There is no question in this.
No decision of this --
Justice Thurgood Marshall: But you do want us to extend, do you not?
Mr. Barry D. Ernstoff: I do Your Honor if there had been a decision of the Court we would not be here today.
Justice Thurgood Marshall: Well we would keep on arguing that we did not have power to do what we did, how can you argue we have power to do more?
Mr. Barry D. Ernstoff: What I am saying is that your analysis which was correct that one does not have to look for an express treaty or statutory enactment in order to find that in Indian Tribe has a power, that that is the correct analysis that this Court has used over the years --
Justice Thurgood Marshall: Now what do you point to?
Mr. Barry D. Ernstoff: I point to Mazurie which talks about tribes having independent authority to some extent over these matters.
Justice Thurgood Marshall: What do you point to other than an opinion of this Court?
Mr. Barry D. Ernstoff: It is impossible to point --
Justice Thurgood Marshall: Then the answer is you do not have anything?
Mr. Barry D. Ernstoff: Yes, the answer is that Congress has never --
Justice Thurgood Marshall: Your answer is you do not have anything?
Mr. Barry D. Ernstoff: That is correct because Your Honor it is very difficult to prove a negative.
If Congress has never enacted a statute giving a tribe power and this Court has recognized the power how can I point to a statute which gave the tribe that power.
All I can point to is this Court’s analysis of the fact that one does not need a statute or a treaty in order to determine if there is a power. Take a look at Williams v. Lee.
Williams v. Lee in 1959, this Court said that a non-Indian must go to tribal court for a civil matter in order to have a judgment entered for him to be able to benefit from a debt that was owed to him.
And the court said in Williams v. Lee, it is immaterial that respondent is not an Indian.
He was under reservation and the transaction with an Indian took place there and that was the reason of this Court’s decision.
Now, nowhere can anyone point to any statutory enactment which says that tribal courts have --
Justice Thurgood Marshall: I think what you point to a constitution provision is that there is difference between civil and criminal?
Mr. Barry D. Ernstoff: I agree Your Honor. Again, if case had been decided in Williams v. Lee we would not be here.
All I can do is rely on this Court’s analysis previously and it does not just --
Justice John Paul Stevens: Can I ask you a question about your basic theory about where the jurisdiction all comes from?
Supposing we had the case arising in 1850 after the Treaty with Great Britain and before the Treaty of Point Elliott, would you say that at that time if an American Scout wandered on to the tribal lands, that the tribe would have jurisdiction in the sense we are talking about it to try that person and the American Courts would recognize that jurisdiction, at that time?
Mr. Barry D. Ernstoff: I believe so, Your Honor.
Justice John Paul Stevens: That is critical to your cases, is it not?
Mr. Barry D. Ernstoff: Yes it is.
As a matter of fact, I think it is important to point out the time and period of the treaty negotiation with Point Elliott tribes of which Suquamish is one.
It is very important.
A draft treaty was prepared in 1854 by the local commissioner of Indian affairs, the Governor of the Washington Territory, Isaac Stevens.
In that treaty, was a specific provision which said the tribe will give up jurisdiction, criminal jurisdiction over non-Indians and will have criminal jurisdiction only over its own members, a specific provision, this is in the brief.
That language was written by the attorney who was the Secretary of the Treaty Commission on December 10, 1854.
Six weeks later, on January 22, 1855, the Point Elliott Treaty was signed.
The only provisions of a 15-section draft treaty which had been written for the purpose of negotiation, the only provision that does not find its way into the Point Elliott Treaty are those expressed words that a tribe will give up non-Indians -- will not have a jurisdiction over non-Indians and will turn them over to the United States for prosecution.
Every other provision of the draft treaty is in there.
There are even provisions which are part of the article in which this language appears which find their way into the treaty.
It is the only provision that is not in the treaty.
Certainly, I cannot tell you, I was not there, we do not have notes.
I cannot tell you that the Indians were clever enough in the 1855 to negotiate a way back because they knew what trouble would bring them.
But some conclusion must be drawn from the fact that the commissioners at that time and this is 20 years after the passage of the 1834 Trade and Intercourse Act felt it necessary to negotiate and to put in to a treaty a provision terminating jurisdiction which Mr. Gorton says had been terminated 20 years before in 1834.
Justice Potter Stewart: Well what we have here is not the 1834 Act, but the amendment of 1854 which pre-dated the conclusion of this treaty?
Mr. Barry D. Ernstoff: That is correct.
Justice Potter Stewart: And that 1854 statute said that the United States should have federal criminal jurisdiction within any Indian Reservation with three exceptions and the third exception which is the only one applicable here is any case where by treaty stipulations the exclusive jurisdiction over such offenses is or may be secured by the Indian Tribes respectively?
Mr. Barry D. Ernstoff: Yes, Your Honor.
Justice Potter Stewart: And certainly, the negotiators for the United States of America knew of the enactment of that statute in 1854 when they concluded this treaty in 1855 and they realized that in the absence of stipulations to the contrary, the tribe under the 1854 Act simply would not have criminal jurisdiction over non-Indians.
Is that not the reason that that original provision was deleted because it was necessary from the point of view of the United States?
Mr. Barry D. Ernstoff: I do not believe so Your Honor because one has to remember, again, we are examining pre-dated time of which we have a little record, but it was well after the 1854 enactment that the Secretary to the Commission, before they actually went out on this trip to negotiate treaties put a provision in not give the tribe exclusive jurisdiction, but they took it away. After the 1854 Act it was not necessary to take away tribal jurisdiction over non-Indians had the 1854 enactment actually done that.
Justice Potter Stewart: There had to be treaty stipulation to the contrary, otherwise the statute took it away?
Mr. Barry D. Ernstoff: That is exactly correct and there are no treaties -- I do not take position by the way that we are talking about the third exception.
It is our position, the government may have a different position, but it is our position that the Federal Government in fact would have had jurisdiction over these offenses over both Oliphant and Belgarde.
The only question is concurrently, can the tribe claim jurisdiction and as it occurred in the facts of this situation, employ that jurisdiction when there is no one else around to do it.
You are dealing with the situation where both offenses occurred in the middle of the night.
You are dealing with the situation in which the County and the Federal Government were asked to provide law enforcement assistance during the tribal celebration in the Oliphant case and the county gave one deputy for an eight-hour period and the Federal Government provided no one.
Had the tribal police not affected this arrest and the tribe not persecuted it, both Oliphant and Belgarde would have gone unpunished.
In the Belgarde case it is even worst because the tribal police basically under my instructions at the time attempted not to act in a matter which might bring about as it did, a court case and the tribal police called the state patrol and the county sheriff and asked them to come that they have now made an arrest of a person who is intoxicated and was speeding through town.
They came, they said well this is a misdemeanor we did not observe it and so therefore we will not be prosecute.
This is on the record and so you have a situation, it is the perfect situation.
The facts really show the law in this case.
Had that tribe not been able to make that arrest and make that prosecution who knows what destruction would have been occurred on that night.
Particularly in the Belgarde case, we are talking about an individual and a truck speeding and probably highly intoxicated.
So, the answer to the question is, no, we are not claiming exclusive jurisdiction.
I can tell you that the US Attorney, the Federal Courts had really not much desire to get involved in neither the Oliphant nor the Belgarde cases in terms of a prosecution.
They are relevantly minor offenses.
They are two young kids and they are making some trouble.
If the tribe can not do that, particularly when the other side of the offense is tribal police, tribal property, tribal dignity, a breach of the peace not just for Indians, but for non-Indians, if the tribe can not do that, what is left to them, but this homeland that has been created for them?
Justice Potter Stewart: How about the state?
Mr. Barry D. Ernstoff: The state on the Oliphant case was on (Voice Overlap)
Justice Potter Stewart: (Voice Overlap)
Mr. Barry D. Ernstoff: Under our strange partial jurisdiction statute there would be no jurisdiction over Oliphant.
In the Belgarde case, but for the Yakama case which the court has already acknowledged the state might also have jurisdiction, but in this case they refused to do anything about it, even though at the time the Yakama case had not been decided.
What you find is --
Justice Thurgood Marshall: What happens after the state refuses to prosecute a felony?
What can the tribe do?
Mr. Barry D. Ernstoff: That is correct.
Justice Thurgood Marshall: Well, then why do you say that it is so difficult with a misdemeanor?
If they file as to act in a felony it would be much more demonstrated, he may able to run while shooting people?
Mr. Barry D. Ernstoff: That is correct Your Honor, but we have never had the problem.
The state I think is certain responsible and the county certainly will not let a felony go unpunished.
When you are talking about minor offenses, mostly which affect the tribe not the county and which the land involved for the most part is non-taxable land, the county is getting no income from it -
Justice Thurgood Marshall: Was this man driving down the road aiming at Indians only?
Mr. Barry D. Ernstoff: He was aiming at everyone.[Laughter]
Justice Thurgood Marshall: Sir?
Mr. Barry D. Ernstoff: He was aiming at everyone.
Justice Thurgood Marshall: Oh! I thought so.
Mr. Barry D. Ernstoff: He was aiming at everyone.
I think if he happened to pick the Indian and he would hit the Indian, but he was aiming at everyone and that is the very question, why was not the county interested enough to get involve and to prosecute?
As I said, on my advise, the tribe was not going to prosecute until it became a matter of assault on the dignity of the tribe, that everyone in the community would look and know that you can violate the law in the reservation and there would be no retribution whatsoever, no kind of punishment.
Justice William H. Rehnquist: Mr. Ernstoff, is there any way of distinguishing your case from a civil jurisdiction of the tribe, so that the Court could enter principal way will say there was criminal jurisdiction here, but not civil jurisdiction?
Mr. Barry D. Ernstoff: That is an interesting question Your Honor.
I really do not know that they can to be honest with you.
I had been trying to do that because I thought it would be a benefit to me to come in with a most narrow case that I can possibly come in with, but to be intellectually honest, I do not think you really can and I do not think that you should.
Let me give an example if I may.
Take the Northern Cheyenne tribe in Montana which have much more trust land, 3000 Indians, almost no non-Indians, coal is about to be developed on that reservation.
It is going to bring an influx of 25,000 non-Indians, probably to develop that coal.
The county seat is at least 60 to 70, perhaps over a hundred miles away, Billings is about 150 miles away.
Now, you picture what is going to that reservation, the 25,000 non-Indian workers to come on to a reservation of three Indians, a half-million hectares and get involved in the kinds of things that people get involved in, and the tribe is powerless to act.
So, while the Port Madison case, we admit that the tribe is still there, it has always been recognized, it has never been terminated, there is a statute, no agreement or statute doing that, the principle of law though, whether it would be civil regulation or criminal regulation can be better seen a situation like that.
Tribes have not done this before.
There is no question about this.
The dissent in the Ninth Circuit in Oliphant makes it very clear that its position is if this all true, why did it not happen earlier and there are several answers.
One is until 1968 you had no remedy, I think the Court is already pointed that out, Talton v. Mayes said you had no constitutional rights and the second reason and perhaps the more important reason, is that until the 1960s, Indian tribes depended on the Federal Government.
This Court said in Mancory v. Morton, just two years ago, talked about materialistic attitude of the Federal Government and the fact that Indian interest basically suffered because the Federal Government said to Indians we will take care of you.
Well, the American Indian Policy Review Commission Report and other things that this Court can take note of shows how the Federal Government took care of the Indians.
The concept to self-determination basically is a concept that the tribes have been upgrading on over the last 10 years, and that is the Federal Government is not going to do it force, but going to have do it ourselves and Congress has recognized this.
You know that Suquamish Tribe is the recipient of all revenue sharing funds for the entire reservation, so any programs that they have had to be for all the members of the reservation.
The Suquamish Tribe is the recipient.
Justice Potter Stewart: What do you mean with the members of the reservation?
Are they the members of the tribe or they are residents on the reservation?
Mr. Barry D. Ernstoff: That is right Your Honor, all the residents of the reservation.
In other words, the formula that is used for determining how much money the tribe will get by the Federal Government, by Congress is the number of residents in the reservation, not the number of Indians.
Justice Potter Stewart: And then where does that money go?
Mr. Barry D. Ernstoff: That money then goes to the tribe which then has to account for them in terms of the programs that revenue sharing money is used for.
Justice Potter Stewart: And what are the programs?
Mr. Barry D. Ernstoff: Kinds of programs that are involved are, first of all, a good deal of the money is used for law enforcement because that is the major problem there.
There is money used for social services for social workers.
Justice Potter Stewart: By the tribe?
Mr. Barry D. Ernstoff: By the tribe because that is considered from the Federal Government as the Local Government of the Reservation.
Justice Potter Stewart: Well, they get money based upon the number of people on the reservation?
Mr. Barry D. Ernstoff: That is correct.
Justice Potter Stewart: The money goes to the tribe for the tribal users and that is just a --
Mr. Barry D. Ernstoff: For the tribal use for all residents of the reservation, law enforcement on the reservation, the Tribal Police Officers and there are 10 not three.
Tribal Police Officers and the three tribal police cars go through the entire reservation.
They do not stop and this Court pointed out for instance In Moe and in Seamore v. Superintendent (Ph) the problems of trying to use a track book in going through an Indian Reservation to determine whether or not you are on trust land or field land.
Think of how much worst would be if they got to get out genealogical chart at the same time and before they made an arrest they had to look and see first of all is it free or trust land, secondly, is it a member the tribe or not.
They cannot even rely on the fact that he is an Indian, because an Indian on the reservation --
Justice Thurgood Marshall: May I ask again, does that apply to felonies too?
Mr. Barry D. Ernstoff: The situation would apply to felonies too, but the tribe --
Justice Thurgood Marshall: I can see that, you make these arguments, when you realize that?
Mr. Barry D. Ernstoff: The situation would apply to felonies also, but as to felonies, the tribe basically has not been involved in any kind of prosecution.
The tribe has allowed and hope that the Federal Government and state will take that over.
The point I am making is that a law would apply and that is why very quickly to deal with the Fifteenth Amendment question, that is why it is an irrelevant question.
Indian is not a racial classification.
This Court is already decided that in Mancory v. Morton, Indian is a political status.
A man can be barely an Indian in terms of his blood and be a member of the tribe, and therefore, come under the definition of Indian and at the same time another man can be a full blood Indian but a member of the different tribe, and he would be in the same status as the non-Indian resident of the reservation, let us make that very clear.
We are talking about a political status not a racial classification.
I believe, that if this Court were to examine the authorities that are in our brief and is a very complicated issue, I acknowledge that, it is one that is never been decided by the Court before, we would not be here and the Court would take its own analysis in related areas and more important, the Court would have take a look at something like the American-Indian Policy Review Commission Report, the Court would see that without this kind of jurisdiction, Indian reservations already a very difficult place to live for an Indian, Indian reservations are going to be even more difficult for an Indian to live in and for an Indian tribe would be able to --
Justice Potter Stewart: It would be more difficult for a place to live for a non-Indian, if you are right?
Mr. Barry D. Ernstoff: That you Honor would depend on the supposition that non-Indians will not receive justice in Indian tribal courts, and I would venture to say that the justice that is given out in Indian tribal courts is equal to or surpasses the justice given out in the most JP Courts, Justice of the Peace Courts through out this country, talking about most part of minor offenses and misdemeanors.
I would venture to say that any non-Indian who felt he was not getting --
Justice Thurgood Marshall: You are citing what to back that up other than you are here?
Mr. Barry D. Ernstoff: That is correct Your Honor.
I can not find anything.
Rebuttal of Slade Gorton
Mr. Slade Gorton: I cannot use that.
Rebuttal of Barry D. Ernstoff
Mr. Barry D. Ernstoff: I cannot -- but -- I can cite the American-Indian Policy Review Commission Report which I think the Court should address itself to because that is what it says what the situation is.
I think that the non-Indians have available to them the Indians Civil Rights Act and I think that that law will develop.
We had suggested for instance in our brief, the concept of a tribal subject matter interest test for this Court to establish which is really what you have been using where the tribe has an interest and it can show, where it is not totally unrelated to the tribe, then the tribe will have jurisdiction and we have used for instance the long arm jurisdiction kinds of cases of this Court.
We had used the taxing of foreign corporation cases.
We had used the cases that talk about when the state can get involved in the interstate commerce.
Cases that show that this Court is concerned about a local government having sufficient authority to be able to maintain peace, dignity and law within their area.
Thank you Your Honor.
Unknown Speaker: Mr. Ernstoff, before you sit down, am I correct, did your firm in addition to the respondent’s brief also filed a brief amicus?
Mr. Barry D. Ernstoff: We represent a number of tribes and two tribes, clients of ours requested that we file an amicus brief on the issue only a Public Law 280 jurisdiction.
Unknown Speaker: So you got a one, two punch?
Mr. Barry D. Ernstoff: Well, we could have put it in our original brief Your Honor, but the United States had informed us that they were going to request that matter not be heard as part of this case since it was an ancillary issue.
It was never decide about the Ninth Circuit in this case and we felt rather than burden the Court with a very long brief, that it made more sense to incorporate by reference and amicus brief would set up the arguments, should the Court want to hear them.
Unknown Speaker: Do you often file amicus briefs in cases in which you are a Counsel for one of the primary parties?
Mr. Barry D. Ernstoff: We have done that once before in this Court, Your Honor.
Justice Thurgood Marshall: Which case is that?
Mr. Barry D. Ernstoff: Tunascot (Ph) v. State of Washington, a number of tribes filed amicus briefs on issues which were ancillary to the basic issue.
We feel that our clients certainly have a right to be represented, and even though we happen to be Counsel for both sides and I did not write the amicus brief, Your Honor.
Justice Thurgood Marshall: Yes, but your firm is in it and you are a partner in the firm?
Mr. Barry D. Ernstoff: That is correct Your Honor.
I did not know that it was improper and if it is we certain would not do it again.
We really were trying to relieve the Court of the burden of a very long brief on what were really two separate issues, one of which has been briefed very thoroughly in another case.
Justice Byron R. White: Well, Mr. Ernstoff there is no conflict between the position of your client and the position of the amicus.
Mr. Barry D. Ernstoff: No, it is exact the same position.
We incorporate it by reference in our brief.
Again, it is a long drawn out explanation of something that we felt the Court might want to refer it to, but not have it in front of it at all times.
Thank you Your Honors.
Chief Justice Warren E. Burger: Mr. Farr.
Argument of Chestnut H. Bartow Farr Iii
Mr. Chestnut H. Bartow Farr Iii: Mr. Chief Justice and may it please the Court.
Because the issues in this case are numerous and difficult and because of the extensive briefing on all sides, I would like at the outset to make clear what the position of the United States is and is not.
First, at the heart of our submission and directly opposed to the position taken by a petitioners in the State of Washington is the principle that the Indian Tribes do not depend upon the United States for the creation of their powers of Government.
These powers instead are derived from an inherent sovereignty that antedates the European settlement of the United States and indeed the formation of the United States itself.
Now, in the questioning earlier in this case, it has been asked whether, in fact, we depend on particular federal statutes or treaties to establish that or the power or the constitution of the United States itself.
We do not depend on those.
We believe that the sovereignty antedates all of that and in fact the reason that Congress did not pass statutes for example, creating inherent sovereignty of the tribe --
Unknown Speaker: And we should just assume to recognize that?
Mr. Chestnut H. Bartow Farr Iii: I believe that the Court has recognized it before and should again.
Justice Potter Stewart: Well, even if we buy that position 100%, the question would still remain whether or not that historic sovereignty included the power to try and convict non-tribal members of criminal offenses and violation of tribal law, that is certainly historically before the white man got here, it did not?
Mr. Chestnut H. Bartow Farr Iii: Before the Indians had had to cover on the Indians itself.
However, we believe that even when the white settlers did get here that the sovereignty of the Indian Tribes who at the time of course were dealing by treaty with the settlement nations, were occasionally at war with them, did extend far enough at least to protect themselves against intrusions by whites, crimes against the tribe itself or against its members and that that sovereignty continues now.
Justice William H. Rehnquist: Do you think that was changed at all by the first sentence of the First Amendment -- of all the Fourteenth Amendment that reads “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside?”
Mr. Chestnut H. Bartow Farr Iii: No, I do not.
Justice William H. Rehnquist: You think that there is no negative implication of ruling out other sovereignties than the United States or the State in that?
Mr. Chestnut H. Bartow Farr Iii: I think in terms of sure sovereignty which is the point I am going to discuss in just a moment that this Court has recognized and the Fourteenth Amendment recognizes that there are principally the Federal Government and the States.
There are two sovereignties.
However, the fact that the sovereignty of the Indians is not a full sovereignty to the extent that the Federal Government possess a sovereignty or the states possess sovereignty, does not seem to me to settle the question of whether the sovereignty that they have is so thin that it does not cover this one.
Justice Potter Stewart: But it leaves it open, does it not?
I mean, you concede that it is not a full sovereignty as indeed you must?
Mr. Chestnut H. Bartow Farr Iii: We do concede it is not a full sovereignty.
Justice Potter Stewart: And the question is then does it include as I say the power to try and convict and punish either non-members of the tribe or non-Indians?
Mr. Chestnut H. Bartow Farr Iii: That is right and I think that that is the question which the Court has to decide in this case at outset --
Justice Potter Stewart: And you begin by conceding it is not full, so the --
Mr. Chestnut H. Bartow Farr Iii: We concede that it is not full.
We recognize as Chief Justice Marshall said way back in Worcester v. Georgia that the Indian tribes are to the extent that their sovereignties, dependent sovereignties and that they are dependent upon the Federal Government at least if not to create their powers not to take them away.
History in nearly two centuries of legal authority demonstrate that the tribe sovereignty is subject to the greater sovereignty of the United States and in the exercise of its own sovereignty, the United States has established a special relationship towards a unique responsibility for the Indians in the United States.
Thus we do agree with petitioners Mr. Justice Stewart that the tribal sovereignty can be in and in many respects has been circumscribed by the United States, so to that extent that it is not a full sovereignty.
Justice Potter Stewart: Well and also it did not begin as full sovereignty, did it?
Mr. Chestnut H. Bartow Farr Iii: Well, I think it did.
Justice Potter Stewart: Not a territorial sovereignty, did it?
Mr. Chestnut H. Bartow Farr Iii: Well, it did not begin --
Justice Potter Stewart: Was that not a concept wholly alien to Indian tribes, the concept of territorial sovereignty they were by -- even those that were not nomadic it did not stay right within the meets and bounds of what is now a reservation because there were no such things.
Mr. Chestnut H. Bartow Farr Iii: That is right Mr. Justice Stewart.
At the time before there was an Indian settlement --
Justice Potter Stewart: It was a tribal self-government, but it was not territorial sovereignty, was it ever?
Mr. Chestnut H. Bartow Farr Iii: Well, in the beginning it was certainly tribal self-government because as you posit they did not have a sophisticated concept of land ownership and there was not anybody else to govern that, it is just now.
Unknown Speaker: Well, it is a territorial sovereignty itself?
Mr. Chestnut H. Bartow Farr Iii: That is because they did not view territory as belonging to particular individual tribes.
That is a concept to which the European settlers quickly educated and it is not clear to me that that means that once they developed that understanding that their sovereignty because it did not depend on it at the outset was not sufficient to cover it when it was developed.
Unknown Speaker: Mr. Farr, you said that they did not have a sophisticated concept of land ownership, did the United States recognize any land ownership rights in the Indians other than those granted by treaty?
Mr. Chestnut H. Bartow Farr Iii: Well, no they did not.
I think one of the first sovereign rights that they lost to the extent that they would have inclined to assert it at all was the right to own land as against sovereignty of the United States --
Unknown Speaker: And how did they lose that right?
Mr. Chestnut H. Bartow Farr Iii: I think that that is an in a central part of living within the jurisdiction of a sovereign in which you are dependent. [Voice Overlap]
Unknown Speaker: Was it not simply by virtue of the United States exercising total jurisdiction over the territory that there would ordinarily be a sovereign right, simply was assumed not to exist?
Mr. Chestnut H. Bartow Farr Iii: I think necessarily it must.
I mean clearly it did.
Unknown Speaker: And why does not the same argument apply to the criminal jurisdiction over non-Indians?
Mr. Chestnut H. Bartow Farr Iii: Because I do not think, by necessary implication that it is inconsistent with the right of the United States to assert their own criminal jurisdiction to assert that the tribes can also have criminal jurisdiction whereas I do think it is inconsistent necessarily with the position of the United States as sovereign over its land to say that the Indians could contract and make treaties with foreign countries, could lease out their lands for a naval base for a foreign country.
So I do not think that is necessary inconsistency in this case.
As a result of these positions, we do believe it is necessary in order to resolve these cases to examine as the Court usually has to do in Indian cases, the relevant statutes and treaties in accordance with the principles of sovereignties just discussed.
At the same time we ask that the Court keep in mind establish rules of statutory construction that again are repeated in all Indian cases that were the statutes and treaties are ambiguous, that they should not be construed to the Indians’ detriment.
Now, with regard to the present cases, the particular treaty provision at issue is the Treaty of Point Elliott and the particular statutes in our opinion as 18 U.S.C. 1152 which comes at the end of a long line of similar statutes.
Now, we find in that treaty, in that statute, no clear expression of congressional intent to cut off tribal jurisdiction entirely in every instance where non-Indians have committed a crime.
At best we can find some provisions that seem ambiguous, that are suspect and can be interpreted as petitioners in the State of Washington have done to support one conclusion or the other, but we find no clear statement such as we think is required by the principles of statutory construction that this Court has laid down.
Justice Potter Stewart: Well, when you say there is no intension to cut it off, you have to first of all, have convinced your self and us that it is existed?
Mr. Chestnut H. Bartow Farr Iii: That is correct.
Justice Potter Stewart: And nothing you have said so far has indicated that to me?
Mr. Chestnut H. Bartow Farr Iii: I have as I suppose given my best shot.
I mean, I think that the cases [Laughter], the authorities we cited in our brief and the position we take is apparent there and I believe that that sovereignty exists and it does cover it.
Justice Potter Stewart: Well, if there was limited sovereignty, but there is no case in this Court where that sovereignty included the power to try and punish for criminal offense of a non-Indian?
Mr. Chestnut H. Bartow Farr Iii: The Court has not said that.
That is true, but if that sovereignty does not exist to some extent, it is difficult to explain, to begin with where the Indians get the sovereignty over their own members, that has been conferred by anything in particular.
Justice Potter Stewart: But that is tribal, it is tribal?
Justice Thurgood Marshall: They could all get together and vote it?
Mr. Chestnut H. Bartow Farr Iii: Well, they have in fact done that in many cases.
Justice Thurgood Marshall: Well, that is their answer, but the petitioners in this case, they were not allowed to vote on?
Mr. Chestnut H. Bartow Farr Iii: But the Court had said that they are not in the situation of a private club.
The opinion for the Court in Mazurie said that, that they are something far more than that and that they have a unique position which is not that a group of people who (Voice Overlap)
Justice Thurgood Marshall: But my own point is, you said there was no way for the tribe to do it and I said, the tribe can pass its own laws, that is what the United States --
Mr. Chestnut H. Bartow Farr Iii: I assume that they could form a voluntary association (Voice Overlap)
Justice Potter Stewart: Like McBratney?
Justice Thurgood Marshall: No, no, I am saying that the tribe at its private council vote its own laws, do they not?
Mr. Chestnut H. Bartow Farr Iii: They do now and I believe they do so in the exercise of their sovereignty.
I believe they probably could do so, at least to govern themselves by voluntary organization.
Fourth in just completing our submission on this general point, we do not believe that Public Law 280 constitutes a bar to assertion of tribal jurisdiction in this case and we have discussed this briefly in our brief here and we have also alluded to it in our amicus memorandum in the Yakama Nation case which we filed late last week.
Although, we recognize that Congress in Public Law 280 has extended the rights, the opportunity to assert jurisdiction over the Indian tribes, we do not believe that the assertion by the State of Washington is valid, and therefore, it would not reach to this case.
Now, in the few moments remaining, I just like to say brief words about the practical effects of Indian jurisdiction.
Although, we do not underestimate the possible difficulties, we do not believe that the result will be catastrophe that the petitioners in the State of Washington seem to predict.
We do not believe it is an extraordinary notion that Indians would have a right to protect themselves against crimes committed by other person.
Unknown Speaker: Mr. Farr, can I ask you?
Why does not the Indian sovereignty, the tribal sovereignty extend to the prosecution of felonies?
Mr. Chestnut H. Bartow Farr Iii: It does not extend to the prosecution of felonies at this time because the Indian Civil Rights Act has limited the punishment which the Indian tribes can meet out.
Unknown Speaker: So you are saying because it is a federal statute which cuts back to sovereignty?
Mr. Chestnut H. Bartow Farr Iii: There is a federal statute that cuts back.
Unknown Speaker: Without a federal statute that leads on prosecutions for felony or the limits of a punishment, the tribe would have the --?
Mr. Chestnut H. Bartow Farr Iii: I think encompass within the notion of tribal sovereignty is the fact that if a non-Indian came on the reservation and killed an Indian that they could have tried him if the federal government has not taken that away?
Justice Potter Stewart: Or kill a non-Indian on the reservation?
Mr. Chestnut H. Bartow Farr Iii: To could kill a non-Indian, then McBratney and those cases put exclusive jurisdiction on the state under terms of enabling act and that doctrine.
So it would be necessarily their interest would be implicated by the killing of an Indian.
Justice John Paul Stevens: So that in the killing of a non-Indian, what the tribal sovereignty that existed has been taken away?
Mr. Chestnut H. Bartow Farr Iii: In the killing of a non-Indian, the tribal sovereignty to the extent that it is existed, there is an open question in that is to whether an Indian interest is sufficiently connected to that.
Justice Potter Stewart: Under McBratney?
Mr. Chestnut H. Bartow Farr Iii: Right, to justify and assert sovereignty and to the extent that there was any sovereignty it has been taken away, that is correct.
Justice Lewis F. Powell: But your position is confined to situation where there is a tribal interest?
Mr. Chestnut H. Bartow Farr Iii: Right, we do believe that there is must be a tribal interest.
Justice Lewis F. Powell: If there were two charges against Belgarde as I recall, one was called for speeding or reckless drive and then the other was called damaging Indian property?
Mr. Chestnut H. Bartow Farr Iii: That is correct.
Justice Lewis F. Powell: If it only has been the first charge, would the Indian Courts have had jurisdiction?
Mr. Chestnut H. Bartow Farr Iii: I believe as I read facts in this case, they would have, speeding through an Indian reservation.
Justice Lewis F. Powell: Suppose Belgarde, instead of being driving had just mugged another non-Indian back on the reservation?
Mr. Chestnut H. Bartow Farr Iii: I believe that would be covered by McBratney Mr. Justices Powell and the state would have jurisdiction of that crime.
Justice Lewis F. Powell: Unless he was about to precipitate a riot?
Mr. Chestnut H. Bartow Farr Iii: It is possible.
This is questionable ground that I am getting into, but it is possible that if a crime by a non-Indian against a non-Indian sufficiently endangered tribal interest that there might be some way for a tribe to assert jurisdiction, but I think in the normal case McBratney leaves that to the states.
Justice John Paul Stevens: Mr. Farr, if I may ask just one other question, putting to one side all the statutes for a moment, going back to what the tribes retained as its original concept to sovereignty, if I understand your position correctly, you do not contend that they originally retain the power to try for major crimes?
Mr. Chestnut H. Bartow Farr Iii: No, I believe that our submission is not that.
I believe originally that they did have the power to try for major crimes.
If they had the sovereign power to protect themselves and their members (Voice Overlap).
Justice John Paul Stevens: How did they lose the power to try non-Indians from major crimes?
Mr. Chestnut H. Bartow Farr Iii: They have lost that in Indian Civil Rights Act.
Justice John Paul Stevens: Until 1968, they possessed that power?
Mr. Chestnut H. Bartow Farr Iii: That is right.
Now, there is no question that that power (Voice Overlap).
Justice John Paul Stevens: They never exercised it though?
Mr. Chestnut H. Bartow Farr Iii: That is right.
Justice William H. Rehnquist: Subject to the Major Crimes Act?
Mr. Chestnut H. Bartow Farr Iii: The Major Crimes Act covering Indians.
Justice William H. Rehnquist: And the Indians Civil Rights Act did not take away from them the power to punish for major crimes, it just said you cannot sentence a person convicted of first-degree murder for more than six months.
Mr. Chestnut H. Bartow Farr Iii: That is correct.
It defines in terms of punishment and not the actual crime, but I think both as a practical matter that that was more or less disabled.
Thank you Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Attorney General you have about six minutes.
Rebuttal of Slade Gorton
Mr. Slade Gorton: Mr. Chief Justice and may it please the Court.
I trust that you have noted how extraordinary that presentation of the United States is, but until 1968, this Indian tribe could have hung a non-Indian for burglary without offering him any constitutional rights whatsoever.
I think I do want to speak very briefly on the technically not quite relevant to facts --
Justice William H. Rehnquist: Well, Mr. Gorton before 1868, the State of Washington could have hanged an Indian or a white man without offering him any constitutional rights at all, could they not, because there was no Fourteenth Amendment?
Mr. Slade Gorton: Before 1868 sir, that may be correct.
There was at least a constitution on under those circumstances for the state and during these years pre-1868 this tribe had no constitution either.
There were not even Indian Constitution Rights, but they are claiming, the United States submission is that Indian jurisdiction or rather at least that the Indian tribal jurisdiction on this reservation over non-Indians except under the McBratney exception was plenary and was not derived from the constitution and was not subject to constitutional guarantees.
Here, the respondents have constantly made the point of what a terrible situation will exist as far as the enforcement of the law on this reservation is concerned unless they are allowed to try these cases.
They failed to tell you that they have objected vociferously and consistently to any exercise of state jurisdiction under Public Law 280.
At this point, unless you hear an appeal on it, they have successfully objected to that jurisdiction.
So on the one hand, they are saying the state will not come and enforce its laws on the reservation and on the other when we try to do so they are saying that you cannot come and enforce your law on the reservation.
The cure to that situation is extraordinary simple.
Even if they are correct in their position on Public Law 280, the Indians Civil Rights Act gives them the power to ask the state to take jurisdiction, total or limited on that reservation.
Our state has already deputized other tribal police officers on the reservation such as the Yakama who have the authority to make arrest for the violation of the state laws.
Therefore, they do not need a genealogical chart in order to --
Justice John Paul Stevens: Does the 280 question -- that question relate to non-Indians and Indians.
I take it?
Mr. Slade Gorton: No, the question relates primarily to jurisdiction over Indians.
Justice John Paul Stevens: Now, I take it you do not object, you do not say now that the Indian tribe does not have power to try Indians?
Mr. Slade Gorton: I do not.
Justice John Paul Stevens: Do you say the state does?
Mr. Slade Gorton: I am sorry?
Justice John Paul Stevens: Do you say the state has concurrent power to try Indians?
Mr. Slade Gorton: Whether the state power has concurrent power to try Indians depends on the validity of public law 280 and that is a separate case which we have--
Justice Potter Stewart: And that is in the Yakama case?
As of now, in the Ninth Circuit position.
Mr. Slade Gorton: We do not.
Justice Potter Stewart: You do not?
Mr. Slade Gorton: That is quite correct.
Finally, to state the proposition that the state and local authorities have no interest in providing law enforcement authority for 3,000 of their own voting citizens on this reservation or perhaps, for 25,000 potential voting citizens on a reservation some place in Montana, is something nonsense.
Of course, the county has exactly the same interest in the enforcement of the law in this area as it does not any other area in that county.
Mr. Justice Stevens asked the question of counsel as to the situation of the Indians got in 1850, after the Oregon Territory Act, but before any Indian Treaties were signed.
Mr. Justice Stevens, I believe could have asked a much broader question and received the same answer.
Under the submission of the tribes, the Indians would have had the right to seek out that scout at any place in the Oregon territory and try him for any asserted violation of its code whatsoever because of these Doctrine of Retained Sovereignty.
We say there are at least two grounds under which the answer is no to that question.
The Indians simply did not retain that sovereignty under the way in which sovereignty is considered by the United States.
As of 1846, by the time of the completion of the treaty with Great Britain, the sovereignty of the United States over that territory, of the United States was total.
When the United States in the Oregon Treaty statute sought to preserve rights of Indians, it did not talk about some kind of retained sovereignty.
It said that we will not take away their rights to persons, their personal or property rights, except by treaty.
Again, I say it is absurd to think that the United States blively (ph) left all of the settlers who were moving into that territory to the plenary jurisdiction of the Indians.
Under those circumstances until they could reduce them, reduce them geographically only to a set of reservations.
That is simply is not consistent with the history of the United States.
Thank you very much.
Justice John Paul Stevens: Can I ask you Mr. Attorney General is the Suquamish Reservation part of the historic area in which the tribe lived or is it different?
Mr. Slade Gorton: The answer to that question is clearly no because the Suquamish Tribe did not exist until Governor Stevens came out there and organized it as a political unit in order to sign a treaty with it.
Justice John Paul Stevens: So that the reservation area is one is --
Mr. Slade Gorton: Arbitrarily selected by the Governor Stevens.
Justice John Paul Stevens: And it is not one as to which the tribe had any Indian Title originally?
Mr. Slade Gorton: Well, there was no tribe before Stevens created it in order to sign this treaty.
Some of the particular Indians who were later (Inaudible) Suquamish may very well have lived in this area.
Justice John Paul Stevens: That is what I want to know.
Did they live in this area?
Mr. Slade Gorton: They may have.
It is very difficult to tell at this point.
Justice John Paul Stevens: Thanks.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.