UNITED STATES v. JOHN

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Argument of H. Bartow Farr Iii

Chief Justice Warren E. Burger: We will hear arguments next in John against Mississippi and United States against John.

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

Mr. H. Bartow Farr Iii: Thank you Mr. Chief Justice, may it please the Court.

These consolidated cases from the Supreme Court of Mississippi and the Court of Appeals for the Fifth Circuit present a common central issue, and that is whether lands purchased by the United States and held in trust for the Mississippi Band of Choctaw Indians, and declared a reservation by the Secretary of the Interior, pursuant to the Indian Reorganization Act, constitute Indian country within the definition found in 18 U.S.C. 1151.

The state case also presents a dependent issue, whether if these lands are Indian country, the Federal Courts have exclusive jurisdiction over crimes involving Indians, as they traditionally do, or whether the history of the Mississippi Choctaws in some way compels a departure from the generally accepted rule.

Now, I would like to emphasize briefly at the outset that what we are talking about in terms of federal jurisdiction here is not a plenary, sovereign jurisdiction, excluding all state jurisdiction, but simply the limited preemptive authority over matters involving Indians that is common in Indian country.

For reasons that I shall discuss, we believe that the Choctaw lands are Indian country, and thus is subject, insofar as crimes involving Indians are concerned, solely to the jurisdiction of the Federal Courts.

Unknown Speaker: You are saying your position with respect to this Reservation is different than your position with respect to the Navajo Reservation?

Mr. H. Bartow Farr Iii: No, I am saying that our position with respect to this Reservation is the same, but is no broader than that.

That when we talk about exclusive jurisdiction, we are not suggesting for instance that the state does not have jurisdiction over crimes solely involving non-Indians, as it does under the McBratney rule, or that it would not have sovereign jurisdiction over its citizens if they go off the Reservation.

Unknown Speaker: But on every piece of this reservation, how many pieces are there?

Mr. H. Bartow Farr Iii: Well, there are tracts in seven different counties.

Unknown Speaker: Well, how many pieces, separate pieces are there, do you know?

Mr. H. Bartow Farr Iii: Well, I am not sure what you mean by separate pieces.

There are…

Unknown Speaker: Well, how many noncontiguous tracts are there in the Reservation?

Mr. H. Bartow Farr Iii: Well, I am not sure what the answer to that is.

Unknown Speaker: But there are at least seven?

Mr. H. Bartow Farr Iii: That is right, that is correct.

Unknown Speaker: And probably more.

Mr. H. Bartow Farr Iii: There are more than seven areas which are not fully contiguous, but there are seven basic areas as I understand it that comprise the Reservation, does not...

Unknown Speaker: You assert that each one of those must be treated as a Reservation, for all purposes?

Mr. H. Bartow Farr Iii: Those collectively should be treated as parts of the Reservation, that is correct.

Unknown Speaker: Mr. Farr, would your position be affected at all about as to whether the victim of the crime is an Indian or a non-Indian?

Mr. H. Bartow Farr Iii: Not in this particular issue, no.

That does perhaps have a relevance to another issue, which I will mention in a moment.

These cases arise out of a single incident that occurred on the Choctaw lands.

In October 1975, a federal grand jury indicted respondent, John, who is a full-blooded Mississippi Choctaw Indian, for assault with intent to kill one Artis Jenkins, under 18 U.S.C. 1153, which the Court is familiar with, is the Major Crimes Act.

The indictment stated that the offense occurred on and within the Choctaw Indian Reservation, and on land within the Indian country under the jurisdiction of the United States.

In the trial the government requested an instruction, not only on the offense charged, but on assault with a dangerous weapon with intent to do bodily harm.

While the defendant relying on Keeble vs. United States, 412 U.S., asked for an instruction on the lesser included offense of simple assault, as defined in 18 U.S.C. 113(e).

The instructions were given, the respondent was acquitted of the major crimes, but convicted of simple assault, sentenced to 90 days imprisonment, with $300 fine.

After post trial motions, respondent appealed his conviction to the Fifth Circuit, arguing that although Keeble required the giving of an instruction on the lesser included offense, the District Court lacked jurisdiction to enter a judgment of conviction on that offense, and this is in response to Mr. Justice Stevens.

We have suggested that if the Court accepts our position on these lands as Indian country, that it remand the case to the Fifth Circuit to consider that issue, because it is possible that the race of the victim maybe a factor in determining that jurisdictional question.

But the record simply does not show whether the victim was an Indian or non-Indian, and respondent did not urge that here.

In any event, the Fifth Circuit did not reach the issue but asked the Department of Justice to file a brief discussing whether the crime occurred in Indian country at all.

The Department of Justice took the position in its brief, a position with which respondent agreed, that the crime did occur in Indian country, but the Fifth Circuit disagreed, for reasons that I will discuss shortly, and reversed the convictions.

Meanwhile, after the federal prosecution was completed, state authorities also obtained an indictment against John for exactly the same offense, charging aggravated assault under the Mississippi statutes.

He moved to dismiss the indictment on grounds that the Federal Courts had exclusive jurisdiction.

The motion was denied, and he was convicted, and sentenced to two years imprisonment.

The Mississippi Supreme Court, in a decision that was actually rendered before the Court of Appeals for the Fifth Circuit decision, held that these lands were not Indian country, and thus that the state had exclusive jurisdiction.

It therefore affirmed the conviction.

Now, turning first to the provisions of Section 1151, the statute defining Indian country, which are found at Page 40a of the appendix to our petition for certiorari, we submit that contrary to the conclusions reached by the courts below, these lands held in trust with the Choctaws fit very comfortably within the definition of Indian country found there.

To begin with, 1151(a) includes within Indian country all lands within the limits of any Indian reservation under the jurisdiction of the United States.

This Court for over 60 years has recognized that such Reservation lands, even if they are not original Indian lands, are Indian country, so long as the Court said in Donnelly, they are lawfully set apart as an Indian Reservation.

Here, the Secretary of the Interior…

Justice William H. Rehnquist: That is from judicial decision and not from an expressed language of Congress, right?

Mr. H. Bartow Farr Iii: The language that I just quoted from Donnelly was prior to the definition.

Justice William H. Rehnquist: Well, you say it has been recognized for over 60 years, the exclusivity of federal jurisdiction over Indian country, but that is by reason of judicial decision and not by reason of a congressional statute making it so.

Mr. H. Bartow Farr Iii: Mr. Justice Rehnquist, I think the Court has recognized that the Federal Courts have jurisdiction, leaving aside exclusive jurisdiction for a moment, over Reservations for much longer than 60 years.

The point that I was raising here is that for a certain time, it was recognized that only original Indian lands comprised of an Indian Reservation, and then in Donnelly, the Court departed from that, and for the first time recognized something that now has been picked up by Congress in the definition of Indian country, that they do not have to be original Indian lands, as long as they are lawfully set apart for the Indians.

In any event, as I was saying…

Justice Thurgood Marshall: You said the Secretary of the Interior, this was in 1944, was it not?

Mr. H. Bartow Farr Iii: That is correct, Mr. Justice Marshall.

Justice Thurgood Marshall: Are not they kind of late?

Mr. H. Bartow Farr Iii: To declare this a Reservation?

Justice Thurgood Marshall: Yeah.

Mr. H. Bartow Farr Iii: Well, I think that is because of the history of the Choctaws which we have set out in our brief, which shows that what he was doing in this particular case was declaring a Reservation for a group of Indians who were left behind when the original Choctaw tribe moved to the Western territory, so that is why he was coming at this late time to provide a Reservation for them.

Justice Thurgood Marshall: All over the West.

Mr. H. Bartow Farr Iii: I am sorry.

Justice Thurgood Marshall: There is a great bunch of Choctaws in Oklahoma.

Mr. H. Bartow Farr Iii: That is correct, but what we are concerned with here is the provisions that the Secretary of the Interior then made for the ones who remained in Mississippi.

What he did was acting pursuant to Section 7 of the Indian Reorganization Act, which contains an explicit authorization that the Secretary can declare new Indian Reservations.

He proclaimed those lands a Reservation, and that status continues to the present time, and of course includes the period of time during which the offenses here were committed.

Therefore, our first submission is that we think it is plain on its face that these lands fit within the definition in 1151(a).

In addition, I would like to point out that 1151(b) speaks to all dependent Indian communities within the borders of the United States.

While I do not intend to go back through the entire history of the Choctaws, which we have set out at Pages 18 to 23 of our brief, I would like to emphasize that the United States, having finally been moved by the sorrowful plight of the Mississippi Choctaws, after the remainder of their tribe moved to the Western territory, has been providing benefits for this tribe, including educational benefits, schools, lands, agricultural benefits, since 1918, and has held their lands…

Unknown Speaker: How long has the Mississippi Choctaws been a tribe?

Mr. H. Bartow Farr Iii: Well, they organized under the Indian Reorganization Act, and that was approved by the Secretary of Interior in 1945.

Unknown Speaker: 1945?

Mr. H. Bartow Farr Iii: That is correct.

Unknown Speaker: So that was from late 1918 to 1945, it was not providing aid to any tribe?

Mr. H. Bartow Farr Iii: What it was doing was providing aid to a group of Indians who...

Unknown Speaker: Individual members of a group?

Mr. H. Bartow Farr Iii: Well, it was providing it to a…

Unknown Speaker: Not to a group as the group, but to individual members of that group?

Mr. H. Bartow Farr Iii: Well, in 1939 for example, they did provide for these lands to be held in trust for the common benefit of the Mississippi Choctaws, so that was certainly a legislation for a group, and I think logically the provision of schools is for them as a group, it is not just purely for a single individual.

Unknown Speaker: I suppose you are going to get to -- I take it the state’s submission is, in part at least, that whether this is a Reservation or not, the United States is not permitted to treat these particular Choctaws as Indians because they were once subjected to state jurisdiction.

Mr. H. Bartow Farr Iii: I intend to get to that right away.

What I was just pointing out at the outset is, that aside from those arguments it seems to me quite clear that these lands fit within the definition of Indian country in Section 1151, and it is just a question now of whether in some way Congress was disabled from putting them there.

Unknown Speaker: You have referred a couple of lines to the fact that it is clear that these lands fit within the definition of Indian country in 1151.

Now, what does that do for you if we accept that proposition?

Mr. H. Bartow Farr Iii: I think what that does is that it gives the Federal Courts jurisdiction over crimes committed by Indians in Indian country.

Unknown Speaker: If you can surmount the other difficulty too?

Mr. H. Bartow Farr Iii: Assuming that these are legitimately Indian country, and the Congress had the power to make them Indian country, then that is right.

Unknown Speaker: This does not go to exclusivity then?

Mr. H. Bartow Farr Iii: At this particular point, it does not need to, although I should point out at this time that generally the federal jurisdiction over crimes involving Indians in Indian country is exclusive of state jurisdiction.

Unknown Speaker: But if you have created an Indian Reservation and then just put non-Indians on it, the Federal Courts would not have exclusive jurisdiction for any crime?

Mr. H. Bartow Farr Iii: The reason would be though, because that is something that Congress could not validly do, as I will explain in just a moment.

But if indeed this is an Indian Reservation that Congress was entitled to establish, or dependent Indian Community that Congress was entitled to establish, then it seems that the normal jurisdictional rules, which are that the Federal Courts have jurisdiction over the crimes committed by Indians or involving Indians, to the exclusion of the state should apply, I do not see any reason why they should not.

Justice William H. Rehnquist: Would you say that it is a normal jurisdictional rule that an Indian living in Phoenix, Arizona, off the Indian Reservation, who has lived in Phoenix for 50 years is subject to the exclusive jurisdiction of the Federal Court there for crimes he may commit in violation of state law?

Mr. H. Bartow Farr Iii: No, Mr. Justice Rehnquist, I do not say that.

What I am saying is that he would not be living in Indian country by the very hypothesis that you put forward.

Justice William H. Rehnquist: So Indian country is essential to your argument?

Mr. H. Bartow Farr Iii: That is right.

That is what gives the Federal Courts jurisdiction over these areas, and that is what include as Reservations and dependent Indian Communities.

Justice William H. Rehnquist: But a nonresident Indian, he does not live on the Reservation, he comes on the Reservation for a day and commits a crime, it would be within the reach of this statute?

Mr. H. Bartow Farr Iii: That is somewhat of an unsettled question.

Whether the jurisdiction in Indian country in 1152 and 1153 applies to people who have no connection with the Indian Reservation or the dependent Indian Community where they are found, is something that this Court noted in Antelope, is left open, but that certainly is not the case here.

If these lands are a Reservation or a dependent Indian Community, certainly Smith John was a member of that Community, or a member of that Band living on the Reservation.

Chief Justice Warren E. Burger: But you have, as has been suggested by brother White, at least two issues here.

First of all, whether or not there is territorial -- well, at least two issues, probably three or four or five, whether or not there is territorial jurisdiction.

Second, if so, is that exclusive.

Thirdly, even though there be territorial jurisdiction, can there be federal jurisdiction over these people who were years ago made non-tribal members and citizens of the…

Mr. H. Bartow Farr Iii: I think that those maybe separated out, although I think the third in this case really is sort of a false issue.

I think that our positions succinctly stated is that there is...

Unknown Speaker: You hope it is.

Mr. H. Bartow Farr Iii: Well, I certainly hope it is, but I also think it is.

Our position is that the Federal Courts do have jurisdiction over these lands because it is Indian country, that that jurisdiction as in normal use of federal lands and in normal situations involving Indian country or dependent Indian Communities is exclusive of state jurisdiction, and finally, that they do have jurisdiction over Smith John himself, who is the only person at issue here, because he is a member of the Band that occupies those lands.

Unknown Speaker: That is a little circular, is it not?

Mr. H. Bartow Farr Iii: I thought it was a straight a line as I ever...

Unknown Speaker: You hope it is.

ou have exclusive jurisdiction over the Reservation because he is there and living on it, you have jurisdiction?

Mr. H. Bartow Farr Iii: Well, I agree one has to follow from the other, but you can follow in a straight line as well as a circle.

Unknown Speaker: You say they have jurisdiction over Smith John because he is a member of the Band and living there, but still you have to answer the claim of the state, that no matter if he be as such, years ago he was declared to be not a member of any tribe in…

Mr. H. Bartow Farr Iii: Well, let me go ahead to that because I do think that, that...

Unknown Speaker: It is too late now to reincorporate him into some tribe.

Mr. H. Bartow Farr Iii: Well, I do not think it is too late.

Unknown Speaker: I know you do not, but that is part of your case too.

Mr. H. Bartow Farr Iii: That is correct, that is correct.

The notion that the Treaty of Dancing Rabbit Creek in 1830 somehow set in stone the relationship between the Choctaws and Mississippi and the federal government, I do not think it is supported by any authority.

It is true that the treaty apparently contemplated that the Choctaws that did not go to the Western territory, would stay behind, would receive land, and would presumably fend for themselves as citizens of the State of Mississippi.

The United States certainly did not in the treaty surrender explicitly any power to help them if that proved to be unworkable.

The State of Mississippi of course is not entitled to rely on any promises there anyway, because it was not a party to the treaty, it was not made for their benefit.

Even if the treaty could somehow be read to include that sort of promise by the United States, it is clear from the decisions of this Court that Congress can amend treaties by later treaties, and by subsequent legislation.

It would seem to me extremely curious, as well as unfortunate, if that principle, which has often been used to change treaties over the Indian subjection, was now somehow unavailable to change a treaty for their benefit and with their acquiescence.

Now, the point that Justice White makes is that after that period of time, they were no longer a tribe, and therefore that Congress', as I understand it, constitutional power had somehow lapsed over the Choctaws, but I think that is too grudging a view of Congress power in Indian affairs.

Tribal existence ,like tribal sovereignty, provides the necessary backdrop for viewing the relationship between the American Indians and the federal government.

This Court has already recognized that a continuing tribal existence is not a sine qua non, but congressional power to deal with Indian affairs.

For example, in the case that we have discussed in our brief, in McGowan, the Court approved the exercise as congressional jurisdiction over lands purchased for Indians in Nevada; many of whom were not members of an established tribe at that point.

Indeed logically, if Congress lost its power to provide for the Indians at the instant that an individual Indian severed his tribal relationship, or the tribe for some reason disbanded, it would completely prevent Congress from experimenting with independence for the tribes, because once the tribe gained some measure of independence, to that degree, Congress would lose its ability to correct the situation if the tribes were unable to cope with that independence.

Unknown Speaker: Mr. Farr, in McGowan, the federal government rather expressly did not assert exclusive jurisdiction.

Mr. H. Bartow Farr Iii: Well, and we are talking again about exclusive jurisdiction, this is a point I made originally; the type of jurisdiction they are asserting there is not the exclusive jurisdiction that you get under the arsenals and dock-yards clause for example, if the state consents to give it to you, where basically you become the full entire sovereign for that area and the state just keeps out, with some limited exception.

What we are saying here is that as this Court recognized in Surplus Trading Co. vs. Cook, that the state continues to be a sovereign over these areas.

It continues to have certain sovereign rights over these areas.

What the state does not have, and this is exactly what the Court said in Surplus Trading Co. by way of example.

what this state does not have is full sovereignty over the Indian wards. The federal government has a sovereignty, and to that extent it preempts that bit of state sovereignty.

Unknown Speaker: As far as (Inaudible), federal government just decided that there were some underprivileged people in that community and we just buy up some federal land out in Arizona or someplace and move these people onto the Reservation…

Mr. H. Bartow Farr Iii: If they are not Indians, they cannot do it, is the answer.

Unknown Speaker: So you rely strictly on the Indians, and what provision of the constitution do you rest on, to keep the state to -- on which to ground federal power to exclude the state?

Mr. H. Bartow Farr Iii: It is grounded on the provision to regulate commerce with the tribes, the treaty power making with the tribes, and the powers that flow from that, that this Court has recognized in numerous cases.

Unknown Speaker: Would your answer be any different if the Indians were moved to Colorado rather than Arizona?

Mr. H. Bartow Farr Iii: No, it would not.

Unknown Speaker: What about Utah?

What would your answer be if they gave New York back, Manhattan?

Mr. H. Bartow Farr Iii: Assuming that the Indians would take it, it seems to me that their power to deal with the Indians at all depends on some sort of original tribal nexus.

This Court in Sandoval said that Congress cannot arbitrarily bring…

Unknown Speaker: The Indians did own Manhattan, did they not?

There are Indians there now -- they had a guy that climbed the skyscrapers.

Mr. H. Bartow Farr Iii: That maybe, but on the issue of the Indian power, the Court did say in Sandoval that Congress could not exercise that power simply by arbitrarily calling a group of people an Indian tribe.

Unknown Speaker: No, I am talking about the Secretary of the Interior, he could do it in Mississippi but he could not do it in New York.

Mr. H. Bartow Farr Iii: Well, the Secretary of the Interior… He can do it if Congress authorizes it, but Congress has not authorized it.

Unknown Speaker: Congress did not authorize that he do it in Mississippi.

Mr. H. Bartow Farr Iii: Under the Indian Reorganization Act, Congress did certain things directly and authorized the Secretary of the Interior to do the rest under the Indian Reorganization Act, so he did have that authorization.

But back in the Sandoval point for a second, the Court said you cannot just call anybody…

Unknown Speaker: What does it depend on, blood?

Mr. H. Bartow Farr Iii: Well, blood would certainly be part of it, it depends if the Court said there on a distinctly Indian Community.

Unknown Speaker: Well, just anyone cannot join the tribe and be recognized as Indian.

Mr. H. Bartow Farr Iii: That is correct, I cannot, I have no Indian ground.

In fact, the Indian Reorganization Act applies only to Indians of one half or more Indian blood.

But it is a distinctly Indian community, and the Mississippi Choctaws have a common history. They have common heritage.

They have common customs, and they have a common language.

In 1918, when Congress began legislating for the Choctaws, they had a report from the agent in front of them that said everyone of the Choctaws still spoke Choctaw, and many of them spoke it as the only language.

So this is not a group of Indians that has been completely…

Unknown Speaker: You better limit that to Mississippi.

Mr. H. Bartow Farr Iii: You are right, I had better limit that to the Mississippi Choctaws, and that is whom I am talking about.

Unknown Speaker: Because the former chief judge recorded criminal appeals in Oklahoma, which is a rather high office.

Mr. H. Bartow Farr Iii: I am speaking, and I apologize for not being precise enough, I am speaking of the Mississippi Choctaws.

But Congress recognized at that time that they had not been assimilated into Mississippi society.

This Court said in Winton vs. Amos, they were denied all political, social privileges, and their children could not go to the state schools.

So it is not clear how they were going to be assimilated, even if that had been the purpose of the actions prior to that time.

So I do not think that, although there clearly are limits to the power to reach out and just find someone in general non-Indian society, even if he has a very distant Indian ancestry, and pulling within the reach of the power, it does not seem to me that that is the situation in this case.

Unknown Speaker: Are they Communities exclusively Indian, the so-called Indian Communities that you are talking about?

Mr. H. Bartow Farr Iii: The dependent Indian Communities, I do not think it would be necessary that they absolutely be populated by an Indian Community.

Unknown Speaker: I did not ask you that, I asked you, are they or are they not exclusively Indian?

Mr. H. Bartow Farr Iii: Well, I think that they...

Unknown Speaker: A community you are talking about is an area.

Mr. H. Bartow Farr Iii: They are exclusively enough Indians so they have that distinctly Indian character, that is what I am saying, you cannot...

Unknown Speaker: But there is land in the community that is owned by other non-Indians?

Mr. H. Bartow Farr Iii: In this case, there is virtually none, and I think that is generally the rule that the land is generally held for the Indians themselves.

Here in the United States, in the lands that they have declared a Reservation, is holding those in trust for the Choctaw Indians and not for anybody else.

Chief Justice Warren E. Burger: This is all federal land is it not, federal owned land.

Mr. H. Bartow Farr Iii: This is all federal owned land.

Unknown Speaker: Would your argument extend to a checkerboard situation such as we have had in the couple of the Reservation cases?

Mr. H. Bartow Farr Iii: Yes, it would.

I mean, checkerboarding is an incident of certain actions that Congress takes.

It is not always the most desirable thing.

It might for simplicity sake be better to have all the lands everywhere bunched by jurisdiction.

Unknown Speaker: Do we not have a checkerboard design in this case?

Mr. H. Bartow Farr Iii: In this case, there are Indian lands, and then there are lands that are non-Indian, and the jurisdiction varies between the two.

Unknown Speaker: Well, your answer..

Mr. H. Bartow Farr Iii: That is correct, but I think that is somewhat of a make way argument, in the sense that you had that in Rosebud, you had that in Dakota, it is simply an incident of some things that Congress does without specifically addressing or perhaps without caring about the effect of checkerboard jurisdiction.

1151(c) gives you checkerboard jurisdiction everywhere it applies, and Congress passed that.

Unknown Speaker: The one individual petitioner has died, has he not?

Mr. H. Bartow Farr Iii: That is correct, Harry Smith John has died.

Unknown Speaker: Has the case moved as to him then?

Mr. H. Bartow Farr Iii: I would believe it is, yes sir.

Thank you.

Chief Justice Warren E. Burger: Mr. Collins.

Argument of Richard B. Collins

Mr. Richard B. Collins: Mr. Chief Justice, and may it please the Court.

Our position on the basic Indian country issue in the case is the same as the United States, and I shall endeavor not to repeat Mr. Farr’s arguments because we essentially agree with them.

I would like to say a few words in opening about the people that we are referring to as the Mississippi Band of Choctaw Indians, as I think it is relevant to this case.

The contemplation of the treaty advancing Rabbit Creek as the state correctly points out was that the Choctaws would either move to Oklahoma or assimilate.

I think it is important to point out that there are really three groups of descendants from those people.

Those that moved to Oklahoma that obviously have no relevance to this case.

Those that stayed in Mississippi, who did assimilate and intermarry with other Mississippi citizens, and those who did not assimilate, who are not all of the descendants, only those who remained a separate and distinct Indian Community.

An Indian Community, most of the members of which were entirely of Indian ancestry, continued to speak to Choctaw language, continued to practice traditional Choctaw social customs and relations.

In 1918, when the United States came in and recognized that assimilation as to this particular group had not worked, at that time, Your Honors, the state of Mississippi, and I think in a significant way recognized the distinct nature of this group of people, because the state of Mississippi was then providing public schools for white Mississippi children and black Mississippi children and even Chinese Mississippi children, but not for this group of Indian people; they were the only people in Mississippi not entitled to go to any public schools.

One of the reasons for the restoration of the federal assistance to them was this rather unique status that they had recognized by the state in that manner.

Turning for a moment then to the Indian country questions that have already been discussed, I would like to respond to a question raised by Mr. Justice Rehnquist concerning the relationship between the Indian country statute and the decisions of this Court.

Justice John Paul Stevens: Mr. Collins, before you do, can I go back to your last point about the two different groups of Choctaws that remained behind; those which were assimilated, and those which were not.

You point out those which were not assimilated could not go to school in Mississippi, what about those that were assimilated?

Mr. Richard B. Collins: I believe that, as I understand it, Mr. Justice Stevens, the people who assimilated would join the White community or the Black community depending on which group they had intermarried with, and they are treated as members of those communities today, essentially.

The people who remained distinctly Indian are the people I am talking about.

Justice John Paul Stevens: In other words, they were full-blooded Indians, is that the line that Mississippi drew?

Because you are relying in part on the line that Mississippi drew in deciding who was eligible for public education.

Mr. Richard B. Collins: Well, Your Honor, as you would suppose, there were occasional Indian people, I am sure scattered throughout Mississippi, but the people who maintained traditional tribal relations were concentrated in one part of Mississippi, around Philadelphia, and they are the ones that we are concerned with here.

We are not concerned with isolated individuals elsewhere; some of whom may even be of substantial Indian ancestry.

The people that remained in these communities are largely full-blood even today, almost all, although the statutory definition under the IRA is half-blood, and that is the legal definition for this Band.

Justice John Paul Stevens: We are of course concerned with several noncontiguous areas too.

If you say this third group is characteristic of all the noncontiguous areas that are now in the reservation.

Mr. Richard B. Collins: You are referring to the land status now, sir?

Justice John Paul Stevens: Yes.

Mr. Richard B. Collins: The lands that are trust lands, that were purchased for the Mississippi Choctaws by the government beginning in 1918, are at seven locations where the Choctaws were largely concentrated before the Land Purchase Program began.

The seven villages or communities are distinctly Choctaw communities.

The population of those communities is over 98% Choctaw, and those that are not, are either government employees or spouses of a few Choctaws.

The land ownership within those communities is somewhat fragmented.

It was quite fragmented in 1944.

The government and the tribe I believe have worked toward consolidation of the land, but for example…

Justice Byron R. White: You mean they exclude non-Indian ownership?

Mr. Richard B. Collins: They have worked to exchange lands.

I think it is done mostly by exchange, Mr. Justice White, to exchange lands to make the lands more contiguous.

That has not entirely succeeded.

There is some disjunctive nature of the lands.

However, it seems to us that the statutes contemplate that in part with the definition of Indian country in 18 U.S.C. 1151(b), which says dependent Indian Communities are Indian country, and the Tenth Circuit Court of Appeals in the Martin case, which we cite in our brief, ruled that a community very much like these is Indian country under I think rather similar circumstances.

Also, we would point out that disjointed land ownership has been a feature of Indian country for many purposes.

In the McGowan case, the Court sustained Indian country status for a piece of land purchased in Nevada for Nevada Indians, and that is my point about the relationship between the statutes and the Court’s decisions.

The Court rendered four or five decisions defining Indian country between 1913 and 1938, and it is very clear from the legislative history of the 1948 statute that Congress was codifying those decisions.

It was recognizing those decisions as the law, and putting them into the statute books.

So I think there is a very close relationship between the statutes and the decisions, which makes the decisions, even though they are prior to the statute, quite relevant to its meaning.

Unknown Speaker: They were codified in the Indian Reorganization Act?

Mr. Richard B. Collins: No, Your Honor, in the Indian country statute of 1948, the statute defining what is Indian country.

Unknown Speaker: Well, was that -- at the time the entire federal statute law was codified, what is called the 1948 Revision?

Mr. Richard B. Collins: Yes, except this statute was new at that time. I realized that most of that 48 codification was a codification of existing statutes, but there was no existing Indian country statute at that time except for an obscure portion of the liquor statutes which said the allotments were Indian country.

Other than that, the only definition of Indian country in federal law prior to 1948 was essentially the decisions of this Court.

It was treated as a common law issue, except for this one liquor statute which included allotments.

But the definition of allotments in the Indian country statute, which again as I emphasized, codified prior decisions of this Court.

That is 18 U.S.C. 1151(c), obviously contemplates some disjointed landownership, and I think Congress has made its decision that Indian country may so exist.

The Court has almost explicitly recognized that in the Decoto decision just a few years ago, and therefore we do not see that that is any disability with regard to the lands involved here being Indian country.

In fact, the tract of land recognized by the Court as Indian country in McGowan was I believe about 28 acres, and the tract of land on which the crime we are concerned with here occurred is over 300 acres.

So as far as identifying an area as Indian land, there would be less difficulty in this instance.

The principle argument that the state raises is that the United States by entering into the 1830 scheme irretrievably lost its authority over the Choctaw Indians in Mississippi.

In response, we contend that the actions of the United States since 1918 very clearly evidenced an intent on the part of both Congress and the executive department to recognize again a portion of the descendants of the Choctaw people who are involved in 1830, as we have already said.

We think that, that kind of authority has been continuously and unanimously recognized by the Court since the beginning of the Republic, until the two cases below; they are the first time I can find where the United States, the political departments of this government, have ever been disabled from dealing with people who are manifestly American Indians.

Unknown Speaker: Do you think that if the executive branch and Congress said that we have great sympathy for the plight of the remaining Choctaws in Mississippi, and therefore wherever they may reside in Mississippi, they shall be immune from the Mississippi criminal code?

Mr. Richard B. Collins: Your Honor, that is a more difficult question of course.

There was a power, rather similar, exercised by the Congress for the period from 1862 until 1953, and that was the prohibition against anyone selling alcoholic beverages to any trust Indian, anywhere in the United States.

That was repeatedly sustained by this Court.

I do not think we need to reach questions that…

Unknown Speaker: My hypothesis goes beyond a trust Indian.

Mr. Richard B. Collins: Well, by trust Indian, what I meant was that statute said any Indian who is enrolled in an Indian agency, that was the definition in effect.

Unknown Speaker: Well, my hypothesis goes beyond any Indian who is enrolled in an Indian agency and simply says, anyone who can prove to the satisfaction of a Court trying the criminal case in the state, that he is of Indian blood, shall have a complete defense to the criminal charge.

Mr. Richard B. Collins: That goes beyond any question that has ever been presented to a Court, and does present a difficult problem, but I think we are so far from it that I do not think that kind of situation really applies here because...

Unknown Speaker: Do you have an answer to it one way or the other?

Mr. Richard B. Collins: I am quite uncertain, Your Honor.

I think a fair argument can be made that the power is justified by the Constitution and that the Court should not overturn it.

What one might say is, that sort of exercise of the power would be unwise, but there are many exercises of legislative and executive authority that appear unwise, but the Courts have no authority to overturn.

I rather think that would be my opinion in answer to your question.

It would depend in part on how one defined Indian.

If you meant anyone descended from an American Indian tribe, as my client is, then I would answer yes, the authority lies, and the Courts have no power to overturn it.

One of the main reasons that we feel that there is no question about federal authority is that the Court has consistently left this question of recognizing who are Indians under federal authority to the political departments of the government, and it is absolutely unprecedented to have the Courts second guessing that question.

The government responsibility is based on initial political relation with an Indian tribe, but once there is an Indian tribe, as there clearly was with the Choctaws, the Court has not held and should not hold that fragmentation or even termination of a tribe cannot be undone if the government later determines that the policy was unwise.

The federal policy with regard to Indians has obviously often split tribes, fragmented tribes, by war, conquest, treaty, or otherwise, and what we contend has consistently been recognized by the decisions of this and the other Federal Courts is that United States can deal with the results of those actions.

Where the United States takes actions that results in the splitting or fragmenting of a tribe, the United States does not by those actions lose its power to deal with the result.

In fact, of course, the Indian people who are affected by actions like that are often those most in need, as well illustrated by the facts and the record in this case.

This Court sustained the constitutionality of the Indian Major Crimes Act, the statute that is basically at issue here in 1886, in the decision of United States against Kagama, and in that very decision, the Court recognized I think the principles that control this case.

The decision referred expressly to the remnants of a race once powerful.

The word remnants which one might use to describe the remnants of the Choctaw tribe of Mississippi that we are dealing with here was used by the Court in that opinion.

Furthermore, the facts of that case are rather similar, was a Reservation established well after California had become a state on lands that were set aside after California had become a state, and if you will, I suppose there was an interim between 1850, when California became a state, and sometime after that when the Reservation was set aside when those Indians were technically under state jurisdiction, just as the people we are dealing with here.

Furthermore in that case, the Court noted very explicitly that the government is empowered to deal with Indians in part as a result of the consequences of conquest of the Indians.

The Court explicitly noted that conquest has rendered the Indians dependent.

I believe the Court emphasized that in the recent decision in the Oliphant case, that conquest rendered the Indians dependent on the United States, and that dependence was relied on in the Kagama decision, interpreting this very statute as giving the United States authority to deal with Indians in the manner that we are talking about here, to provide a criminal code for them.

If the action of 1830 were deemed irreversible as Mississippi contends, it would severely hamper federal policy.

It would allow no corrective action.

It would cause problems elsewhere, because that kind of reassertion of power has occurred elsewhere, and we contend that there is no precedent for it.

I would next like to point out that when the Major Crimes Act jurisdiction exists, when there is Federal Court jurisdiction as was exercised here by the United States District Court for the Southern District of Mississippi to prosecute my client, when that exists, this Court and all the other Federal Courts have always held that, that authority is exclusive of state authority over the same crime that it precludes or preempts state authority over the same crime.

This Court has twice held that as a holding; in the Seymour case and in Rice against Olson which we have cited.

The Lower Federal Courts have held it in numerous circumstances. The Court has noted it in dictum frequently, and most recently in the Antelope case.

We can see no reason why Mississippi is any different in this regard from any other state in the union.

The fact that the Indians involved were for a time under state jurisdiction does not serve to distinguish the situation in other states.

As I have pointed out, there have been frequent examples in the history of the country where Indians were for a time under state authority, but federal jurisdiction to establish a Reservation was then asserted, and they came under federal jurisdiction, and that authority has been sustained by the Courts.

In conclusion, we agree with the United States that this land was Indian country.

If it is Indian country, the Major Crimes Act on its face applies, the Federal Court has jurisdiction, and we contend that the subsequent state prosecution for precisely the same offense was therefore preempted by valid federal authority, and that the conviction and/or judgment of conviction entered by the Mississippi Court should be reversed.

Unknown Speaker: Mr. Collins, could I just ask you, I am just curious.

Is the Native American Rights Fund a Legal Services Organization, or does it have other functions?

Mr. Richard B. Collins: It is a nonprofit law firm, Your Honor.

Unknown Speaker: So it is a law firm.

Mr. Richard B. Collins: Yes, sir.

Unknown Speaker: The professional organization under the Colorado Order?

Mr. Richard B. Collins: It is a nonprofit law firm, we are incorporated as a nonprofit firm.

Unknown Speaker: Well, you are not authorized to practice -- the firm is not authorized to practice law, is it the corporation?

Mr. Richard B. Collins: No, Mr. Justice.

It just employs us.

May I reserve my remaining time?

Chief Justice Warren E. Burger: Mr. Andre?

Argument of Carl F. Andre

Mr. Carl F. Andre: Mr. Chief Justice and may it please the Court.

I think it important to look first at factual situation of Mississippi Choctaw of today and the land subject to this case.

It is my understanding that today, something over 19,000 acres in seven different counties, perhaps five counties, this land being neither continuous nor contiguous.

Unknown Speaker: Which is it, five or seven?

Mr. Carl F. Andre: I cannot say, I have not seen the map, I do not know.

Unknown Speaker: I have a map here which will show something.

Mr. Carl F. Andre: It quite possibly is seven, there was some distinction there.

I saw one map on a dissertation which showed I think five, and another map which showed seven counties, I do to know.

It is curious, looking at this, this land purchased out at about 1918, it was authorized in 1918, began in the early 1920s, and each year a little land was purchased.

By 1930, something like 3,000 acres had been purchased.

By 1960, some 16,000 acres may have been purchased.

Today it is something over 19,000 acres.

The particular indictment narrows a spot where this crime took place, probably took place, to 880 yards squared, according to the reckoning of the Fifth Circuit.

This land as I said is neither continuous nor contiguous, it is (Inaudible).

I understand that there are some 12,000 acres of it, exclusively devoted to timber.

Now, as to the Choctaw people, they are not gathered together in one community.

There are smaller communities scattered about as part of that area, and not necessarily touching each other, but they are Choctaw citizens of Mississippi in some 56 of our 82 counties.

There are some living in Western Tennessee, in the Memphis area.

There are others who are living in Louisiana and Alabama.

Some have no affiliation with the Bureau of Indian Affairs Office there.

Some are called in rural Choctaws, but not necessarily all of them are.

Some have participated in the various activities of the Bureau of Indian Affairs, but not all have.

As I have said, they number some 3,000 to 4,000, I cannot say how many.

I do not know where they all live.

These are guesses.

Chief Justice Warren E. Burger: But is it not possible that some maybe subject to federal jurisdiction and some not?

Mr. Carl F. Andre: Possibly so, I may intend that none of them are, under the basis of this case before the Court.

Justice Thurgood Marshall: But are not these two particular individuals, Choctaw Indians living in Mississippi?

Mr. Carl F. Andre: Yes.

Justice Thurgood Marshall: And those are the two we are talking about?

Mr. Carl F. Andre: They are Choctaw Indians who were in Mississippi, yes.

Unknown Speaker: And living on the Reservation?

Mr. Carl F. Andre: I think they were living on the land alleged to be a Reservation.

Unknown Speaker: And the offense occurred there?

Mr. Carl F. Andre: Yes, no question on that.

But terms had been banded about in the case at all levels, such as Reservation, tribe, wards, guardianship, and so forth, which I think we need to look at a little bit more closely.

It has been alleged, as I understand it by the government possession, and by John in this case, that the federal government acknowledges that they had no jurisdiction over Mississippi Choctaws, they exercised it not, from around 1830 to 19, when, when did they start reasserting or asserting in the jurisdiction, the record is not clear.

Certainly they are doing it by 1975 in this case, they are asserting jurisdiction over them.

But if they did so…

Unknown Speaker: Did not the Secretary of the Interior issue it and make it a Reservation in 1944?

Mr. Carl F. Andre: That is what his proclamation said; our position here said it was grounded and improper legislation.

Unknown Speaker: Is it still on the books?

Mr. Carl F. Andre: Yes sir, I suppose it is.

He based that proclamation, if I could continue along that line, on the 1939 Act of Congress, which simply said, an Act to define the status of land purchased for the benefit of Choctaws in Mississippi.

This was to clarify the title.

Unknown Speaker: Did Mississippi ever protest?

Mr. Carl F. Andre: No sir, no one paid any attention, until of recent years.

So today we are faced with some 19,000 acres across the state, no clear pattern as to when and where this land is bought, nor how this land is to be used; some of it being set aside for timber.

Presumably some of it as as rare statistics.

I do not know whether or not any non-Indians live on it.

I do know that all of the Indians do not live on this land, they live elsewhere.

That the federal government is asserting a possession, to my mind not unlike a proposition if they came into Southern Louisiana and decided to take jurisdiction of the Cajuns of that area, who spoke French, and had been speaking French, who lived in relative close proximity to each other, solely because they were Cajuns of French descent, because Congress feels…

Chief Justice Warren E. Burger: You are leaving out one element there, are you not, and that ism the land, the Reservation aspect?

Mr. Carl F. Andre: Well, this land has been purchased as we have maintained in a peculiar transform situation.

It is held in trust for the Choctaws.

But I think it really could be argued that if that is permissible, then Congress could authorize (Inaudible) to buy land for the Cajuns.

Justice William H. Rehnquist: Well, there certainly is no Cajun section to Article 1 of the Constitution, would you say --

Mr. Carl F. Andre: That is true.

Justice William H. Rehnquist: It came under the…

Mr. Carl F. Andre: That is true because, Mr. Justice Rehnquist, we state that Congress deals with Indian tribes, and that there must be this tribal consideration which goes down through history, and we start off and look at treaties with the Choctaws from 1798, the Choctaw tribe.

We look at the Indian Removal Act, just prior to the Treaty of Dancing Rabbit Creek in 1830, a removal of Choctaw tribes, the Indian tribes to the West.

Chief Justice Warren E. Burger: But you are assuming that once a tribe disintegrates that it can never be restored to tribal status?

Mr. Carl F. Andre: Yes, yes.

Chief Justice Warren E. Burger: What is your authority for that?

Mr. Carl F. Andre: Simply because to do it otherwise you are getting into racial law, which to my understanding is not permissible.

Chief Justice Warren E. Burger: You have not given us any authority for this idea that a tribe may not restore its self to tribal status, assuming that the federal authority takes the appropriate steps which they claim to have taken.

Mr. Carl F. Andre: Perhaps it could be done on certain situations, and it might be reorganized on a bilateral basis between -- if a group of Indian descendants got together and attempted to organize, and then petition the Congress for some sort of corporation or some corporate status or something like that, then it could possibly evolve into a situation.

But to purely and simply take a group of people or the descendants of people who had become citizens of a state and were treated as other citizens of the state for almost 100 years, as individuals, and then to set them up as a new tribe, which in fact it was, because there was no organization to these people there in Mississippi until about 1934 or 1935.

Then there were two conflicting organizations which were (Inaudible) authorities; The Bureau of Indian Affairs favored one, breathe life into them, and it followed with the proclamation of the Secretary of Interior in 1944.

Chief Justice Warren E. Burger: Have you not almost described the restoration of a disintegrated tribe by what you have just said?

Mr. Carl F. Andre: But there must be some legislative cement to hold the argument together, Your Honor, and that is missing in this case, for this reason.

If they are relying on the Indian Reorganization Act of 1934, it addresses itself to tribal reorganization, and other matters, and states such things as a majority of the tribe may agree to come under this.

There was no list that I can find of any particular Choctaw tribe in Mississippi at that time.

These were individuals living (Inaudible) as we have said.

What is the majority of a number that today ranges between three and 5,000 people?

It is an indefinite, impossible situation.

Then we find another peculiarity.

The Relief Act of 1918 which Congress -- first time as far as I know that Congress had recognized any Indians in Mississippi directly since 1830, provided for certain relief and the purchase of land to be sold to the Choctaws on a repayable basis.

This is where the land purchase started, because the Choctaws took the land, but did not pay for it, and the government represents.

This in turn produced the 1939 Act to clarify the land title, as to who should have title to the land.

So in the 1934, it is to me an impossible situation to suggest that a group of people across a state could satisfy the basic requirements of coming together in an organization function, getting majority out of them to approve at a proper election, etcetera.

Now, what I was going to say was that the 1918 Act addressed itself to whole blood Choctaws.

The Indian Reorganization Act addressed itself to half-blood Choctaws.

The record is devoid of any anthropological study or otherwise to determine who was a whole blood and who was a half- blood.

Presumably, they had something to go on because some ten years before 1918, acting under the Dawes Commission Authority, agents had gone into Mississippi and attempted to round up and get together various people of Choctaw descent, so that they could join the tribe in Oklahoma.

That is where the tribe and the tribal authority that Congress dealt with had been since 1830 removal from Mississippi.

Congress has not created any tribal status for Mississippi Choctaws.

The Act that the Secretary of Interior relied on, did not address itself to Mississippi Choctaws.

This Court reviewed in past statutes of Mississippi Choctaws in 1921, in Winton vs. Amos, vested in length the whole history of the tribe.

It is no point in repeating all of that today, but sufficient to say they were absent in a Congressional direct action from 1830 until 1918.

Unknown Speaker: Mr. Andre, could I interrupt there, because I think the Court of Appeals relied so heavily on the absence of any authority in the 1934 Act.

Why is not Section 467 sufficient?

It says in words, the Secretary of the Interior is hereby authorized to proclaim new Indian Reservations and lands acquired, pursuant of any authority conferred by various section.

Why did it not do exactly that?

Mr. Carl F. Andre: I think Your Honor that you have to address yourself to the overall purpose of the Indian Reorganization Act, which was to reorganize tribes, and possibly get them out from under the Bureau of Indian Affairs or at least the domination of the Bureau of Indian Affairs.

Unknown Speaker: Would you agree that the language of the statute just read literally does cover the situation?

Mr. Carl F. Andre: Cover our situation?

Unknown Speaker: Yes.

Mr. Carl F. Andre: No sir, I do not think it covers our situation.

Unknown Speaker: Then I just want to know why not, because I am not...

Mr. Carl F. Andre: Because I think we do not have a tribe in Mississippi in 1934 subject to that Act which says, that any tribe on the Reservation under the jurisdiction of the United States government.

We had no tribe in Mississippi.

There was no Reservation.

The Choctaws there were under the jurisdiction of the state, and they had been since 1830.

Unknown Speaker: Which section of the statute limits the power in 467 to new Reservations for preexisting tribes?

What is it in the statute that supports your argument?

Neither side quoted those statute very directly.

Mr. Carl F. Andre: In front of me but the statute.

The Indian Reorganization Act, according to the authorities and all general articles, etcetera, coins the Handbook of Indian Law and others, state that the purpose of the Indian Reorganization Act was to -- it had several purposes.

One to stop the practice of Indian land allotments, where Indians were allotted land individually and subsequently lost.

To permit the tribes to come out from under the domination or complete control of the Bureau of Indian Affairs and act independently in their own affairs, and therefore it directs itself to at least the nucleus of some tribe, something that can be said to be a tribe.

Also, if I am not mistaken, refers to tribes on an Indian Reservation.

There were many Reservations at that time, all over, the tribal organization, the various Indians on them varied; in some place it was highly organized, in some place it was not.

Unknown Speaker: What you are saying is the statute meant that you could only create a new Reservation by moving one from a preexisting location to a new location, is that basically what you are saying?

Mr. Carl F. Andre: I suspect that, that was put in to buy additional lands in such places as Oklahoma and in the West, I suspect that, I cannot say.

As Cohen states that the Indian Reorganization Act as finally put together was sort of a compromise between the Senate and the House, then you have to be a little weary in making any positive statement about it at all.

I think one more point is necessary.

We have talked here this morning about wardship, guardianship over Indians.

The Choctaw Indians of Mississippi, they have been in close proximity to the European settlers in there from 1699 forward.

At the time of the Treaty of Dancing Rabbit Creek, they were not an untutored group of people.

They are not today.

True, their fortunes are mixed, just to those fortunes of Black Americans, White Americans, Chinese Americans, others in Mississippi have mixed economic and educational fortunes.

Chief Justice Warren E. Burger: They may not have been untutored, but they were unschooled, they were not allowed to go to school, were they not?

Mr. Carl F. Andre: The reference there was in 1918.

I would suggest that in the areas in which Choctaws lived in Mississippi, there may not have been any schools in the early part of 1900s.

Chief Justice Warren E. Burger: But if they were public schools, they were not allowed to go to them?

Mr. Carl F. Andre: I do not know if that is so.

Chief Justice Warren E. Burger: According to an opinion in this Court.

I do not know, I only -- I only know what I read.

Mr. Carl F. Andre: That is said.

Unknown Speaker: But what about in your lifetime in Mississippi, have these Choctaws been permitted to go to school, say in the 1940s?

Mr. Carl F. Andre: I cannot answer that, I do not know.

Unknown Speaker: Probably not that old, I would assume?

Mr. Carl F. Andre: I am that old, but I do not know, I was raised in the section of the state where not many Choctaws lived.

Unknown Speaker: But you just do not know whether history is the same in 1940 --

Mr. Carl F. Andre: I do not know.

I think they could possibly go to the schools.

I do not know if they was any prohibition against them, but there had been some schools set for them at that time, which the Bureau of Indian Affairs set them on into other schools, boarding schools.

I think it is through other reason that they have set up that special schools, and you get into dissertations and learning articles on this, and you find remarks like the Choctaws did not want to go to school.

Chief Justice Warren E. Burger: But it is true about a lot of children, it is nothing unusual?

Mr. Carl F. Andre: No.

Unknown Speaker: But at least the state did not attempt to establish its own schools in these communities?

Mr. Carl F. Andre: I do not think there were any state schools set up separate for Choctaws.

One time we had schools for Blacks and schools for Whites, I do not think they were set up for Choctaws.

Unknown Speaker: And as far as you know they did not go to either or the other?

Mr. Carl F. Andre: I do not know, I just cannot answer.

I just do not know what happened in the 40s, 50s, and so forth.

In conclusion, we simply say that these are citizens of Mississippi, have been since 1830, that in truth the position of the government attempts to apply Acts of the Department of Interior retroactively to take a proclamation of 1944 and say, oh, this is based on a 39 Act, which is based on a 34 Act, which is based on the 1918 Act, and therefore you have changed the character, when the historical truth does not support this position.

Thank you.

Chief Justice Warren E. Burger: Mr. Collins?

Rebuttal of Richard B. Collins

Mr. Richard B. Collins: Mr. Chief Justice and may it please the Court.

I have three replies.

First, in answer to the last question on schools.

Until 1968, Mississippi Choctaw children would attend Bureau of Indian Affairs in Mississippi until the eighth grade, at which time they would go to Federal Indian schools in Oklahoma to attend high school.

Unknown Speaker: Why is that?

By preference or were they excluded from Mississippi high schools

Mr. Richard B. Collins: In the part of Mississippi in which they are concentrated, where these schools exist, I think everyone has assumed that that is the proper way of things.

I do not think there have been any challenges to the system, so one cannot say that if there had been a challenge or had been an attempt that they might have not been admitted, but I am informing the Court of the way it was.

I cannot say precisely why it was.

Unknown Speaker: You cannot say then that Mississippi ever excluded them from Mississippi schools?

Mr. Richard B. Collins: Your Honor, we have cited historical tracts in our brief, particularly the tract by Mr. Peterson, that indicate that they, at 1918 at least, they were not admitted to Mississippi schools, and at that time the government established federal schools for them for that very reason.

Subsequent to 1918, all I know is that…

Unknown Speaker: But you have never read a statute or a rule or anything else that ever banned them from Mississippi schools?

Mr. Richard B. Collins: No sir.

Justice Thurgood Marshall: There is a street in Phoenix named Indian School Road, and the reason its named Indian School Road is that there was a federal Indian school from which Indians from wide ranging areas were sent by the federal government at their choice, subject to my colleague Stewart’s remarks, that maybe no child chooses to go to school, but the issue really never arose whether they could have gone to school in Apache County or Navajo County, since they all went to the federal Indian school in Phoenix.

Mr. Richard B. Collins: That is correct, Your Honor, and if we had a continuous pattern of federal relationship with these Indians, the matter would be precisely identical.

The only point I am making is that there is no doubt.

I think the relevant point is this, there is no doubt that we have an identifiable group of Indian people.

Mississippi treated them as such.

The government recognized them as such.

I think that is the relevant point, and no more.

I was not trying to make any more of it than that.

Unknown Speaker: So we can judge the case on the assumption that they could have gone to Mississippi schools if they had wanted to, is that it?

Mr. Richard B. Collins: After 1918, I do not know, Your Honor.

Unknown Speaker: Or before.

Mr. Richard B. Collins: According to the historical sources I have read, they were excluded.

Why is that so, I cannot say, we have to look at the statute.

Justice Thurgood Marshall: I think you want to look at the Mississippi statutes back in those days.

Mr. Richard B. Collins: There were no statutes, Your Honor.

Your Honor, I would further point out that the Court’s opinion in 1921 indicated that they were not permitted to vote, and there was no statute saying that they should not be permitted to vote either.

It is the same kind of situation.

I am saying that Mississippi treated them as a separate group of people, and we are saying that there is not an irrational exercise of federal authority with regards to people who are not identifiable as Indians; they are identifiable as Indians, and that is…

Unknown Speaker: Your case is as good one way as another, I take it, is it not?

Whether they were excluded from voting or going to school or not, your case is not destroyed?

Mr. Richard B. Collins: I agree as a legal matter, Your Honor, that is absolutely correct.

The suggestion has been made, as I understand it, that the federal authority is being irrationally exercised in some manner, and I am suggesting that that is not so, and that these facts indicate that it is not so.

Chief Justice Warren E. Burger: If they were excluded from schools and excluded from voting, it would lend some support to your argument that they were isolated into their tribal groups?

Mr. Richard B. Collins: Yes, well, that is what I am referring to, I agree, Your Honor.

The next point I wanted to refer to was the Indian Reorganization Act of 1934 in response to Mr. Justice Stevens question.

The 1939 Act of Congress referring specifically to the Mississippi Choctaws indicates specifically in its legislative history as we have pointed out in our brief, that the Indian Reorganization Act was thought by Congress in 1939 to apply to the Mississippi Choctaws, because the legislative history indicates that one purpose of the Act was to enable them to organize a tribal government pursuant to the Indian Reorganization Act, so Congress certainly thought that in 1939.

Secondly, the …

Unknown Speaker: But you do not know what their educational condition was in 1939, or whether they could go to public schools or not?

Mr. Richard B. Collins: No, Your Honor, I do not.

I mean, I know that in fact they were attending federal schools, but I do not know the answer to that question.

Furthermore, I would point out to the Court that there is a consistent pattern of administrative enforcement of this statute that indicates that it applies to the Mississippi Choctaws, including an opinion of Assistant Solicitor Felix Cohen, that is included in the government’s petition.

Then finally, I would mention that the seven communities in which the Choctaws live are identifiable in Mississippi as Choctaw Communities.

No one has suggested that people in the area were talking about do not know which is a Choctaw Community and which is not, and in fact, they are clearly identifiable and known to local citizens.

Unknown Speaker: In these communities, is there any fee land at all?

Mr. Richard B. Collins: As I understand it, Your Honor, and this is not in the record, that over 90% of the lands in the communities is federal land.

There is a bit of fee land here and there, but very little that is enclosed within the communities.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.