RESPONDENT: United States
LOCATION: Location of car search
DOCKET NO.: 72-5323
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Eighth Circuit
CITATION: 412 US 205 (1973)
ARGUED: Mar 27, 1973
DECIDED: May 29, 1973
Mark V. Meierhenry -
Richard B. Stone - for the respondent
Facts of the case
Media for Keeble v. United States
Audio Transcription for Oral Argument - March 27, 1973 in Keeble v. United States
Warren E. Burger:
We’ll hear arguments next in 72-5323, Keeble against the United States.
Mr. Meierhenry you may proceed whenever you are ready.
Mark V. Meierhenry:
Mr. Chief Justice, may it please the Court.
This case comes to the Supreme Court from the Eighth Circuit Court of Appeals which issued a split decision, affirming Judge Neckel of the District of South Dakota.
The facts in this case are basically that this crime was committed upon an Indian reservation in the State of South Dakota, the Crow Creek Indian reservation, by one Indian against another Indian.
The indictment was brought under 18 U.S.C. 1153.
There was a conviction had on this crime.
During the trial of the case, the defense requested the lesser included offense instruction, that was not given and the Supreme Court on December 4th of year past, granted certiorari on the question of whether the District Court’s refusal to give that lesser included defense instruction under 18 U.S.C. 1153 violated the Fifth Amendment due process guarantee.
Now the lesser included defense instruction that was requested was the crime of assault to the major crime of assault with intent to do a great bodily injury.
The defendant in this case has two basic contentions.
Number one, that the Act of 1885 intended that Indians be tried in the same manner and in the same courts as other persons committing the same crimes and the second is, that if the petitioner’s contention that this is incorrect and Congress did not intend the jurisdiction be present to convict under lesser included offense instructions, then 18 U.S.C. as applied, violates due process because a lesser included offense instruction is part of the fundamentally fair trial and Rule 31 (c) of the Federal Rules of Criminal Procedure so direct.
Before I launch into the main argument, I would like to point out a correction as I see it in the government’s brief and that is argument 2, pages 19 to 23, and the petitioner’s view of that is not the state of the law at the present time.
They speak in their brief of a narrow class of cases which would lead me to believe they think is 13 major crimes.
This is not the state of the law in Indian reservations in the United States.
The general laws of the United States apply except and 18 U.S.C. 1152 points this out, “if the crime is one Indian against another Indian, if there has been punishment under tribal law and number three, if the treaty rights control this particular point and a case cited in the government’s brief points this out which is the Menominee Tribe versus United States which is a fishing right under treaty and which continues.
Now an example of this is a case which is not cited in any brief, United States versus Berlin, 441 F.2d 1199 and this Court denied cert in that case.
That was forgery and what we are talking about here when I am talking about the general laws in the United States is that the Assimilative Crimes Act applies to Indians.
That case so held that, involved the conviction out of Montana for forgery under the state statute.
An example of this right now is the occurrences which are in news, the Wounded Knee.
I have read the indictments against some of these people.
It is under the Assimilative Crimes Act, it's for violations of postal regulations, involving postal things which the Wounded Knee Trading Post is also a post office, so the assimilated crimes act does apply.
Now the important thing about that in this case is under the Assimilative Crimes Act, an Indian would get a lesser included offense instruction.
Only when you are talking about the 13 major crimes, does he not get a lesser included offense instruction, and as the government talks about this clear pattern, within the 13 there is one that there is a lesser included offense instruction, included within which is larceny and that would be the common thing of petty larceny, larceny under $100.00 which is included therein.
Now then the jurisdictional part as the Court is aware, started with Crow Dog which is in 1883 said that the United States government has no jurisdiction over crimes by one Indian against another Indian on an Indian reservation.
Out of that decision by the Supreme Court, the Act of March 3rd, 1885 set up the jurisdictional scheme that we now have on Indian reservations.
That said within a territory, which South Dakota was at that time, within a territory the laws of the territory applied to all persons, Indian and white alike, without any thought of an Indian reservation.
Therefore, between that dates 1885 and 1889 in the territory of Dakota, an Indian would get a lesser included offense instruction.
Upon South Dakota becoming a state in 1889, Indians washed this right because the second part of the Act of 1885 took effect which said that within a state if it happened within the confines of an Indian reservation Federal Law applied, which of that kind there were seven major crimes defined by Federal Law.
There are since been six added all defined by State Law.
Now within that reservation or within that four-year period, an Indian was given lesser included offense instruction.