Negonsott v. Samuels – Oral Argument – January 11, 1993

Media for Negonsott v. Samuels

Audio Transcription for Opinion Announcement – February 24, 1993 in Negonsott v. Samuels

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William H. Rehnquist:

We’ll hear argument now in Number 91-5397, Emery L. Negonsott v. Harold Samuels, Warden.

Miss Thompson.

Pamela S. Thompson:

Mr. Chief Justice and may it please the Court:

This case comes before the Court on a writ of certiorari from the Tenth Circuit Court of Appeals.

The issue for decision is whether 18 U.S. Code section 3243 prohibits the State of Kansas from exercising criminal jurisdiction over an offense defined by the laws of the United States and enumerated in the Major Crimes Act, 18 U.S. Code 1153.

Section 3243 was passed by Congress in 1940, and it conferred jurisdiction on Kansas over intra-Indian offenses to the same extent as its courts had jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State.

However, Congress added a proviso which states that the courts of the United States shall not be deprived of jurisdiction over offenses defined by the laws of the United States.

The first court to interpret section 3243 was the Eighth Circuit Court of Appeals in the case of Youngbear v. Brewer.

This 1977 decision upheld a lower court’s finding that Iowa’s jurisdictional statute, which is virtually identical to the Kansas act, did not grant Iowa concurrent jurisdiction with the Federal courts over offenses defined by the laws of the United States.

In 1982, the Kansas Supreme Court, following the reasoning and analysis of the Eighth Circuit in Youngbear, held that the Federal courts had exclusive jurisdiction over Federal offenses defined in the Major Crimes Act.

Then in 1986, in the case of State of Kansas v. Negonsott, the Kansas Supreme Court reversed itself, holding that the State had concurrent jurisdiction with the Federal courts over major crimes.

It is that decision of the Kansas Supreme Court which ultimately gave rise to this case.

The facts of the case are not in dispute.

Briefly, Mr. Negonsott was arrested, tried, and convicted by State authorities in State court for the crime of aggravated battery.

Now, this crime occurred within the confines of the Kickapoo reservation, and both Mr. Negonsott and the victim were enrolled members of the Kickapoo Nation in Kansas.

Anthony M. Kennedy:

What crime covered by the Federal Major Crimes Act most closely parallels the State crime?

Pamela S. Thompson:

It would be those crimes found in 18 U.S. Code section 113 (c) and (f), which is basically assault with a dangerous weapon.

Anthony M. Kennedy:

(c) and (f).

Pamela S. Thompson:

(c) and (f).

Anthony M. Kennedy:

Thank you.

Pamela S. Thompson:

Mr. Negonsott challenged his conviction by filing a writ of habeas corpus in the Federal district court, attacking, of course, the subject matter jurisdiction of the State courts.

The Tenth Circuit upheld the district court’s dismissal of the writ of habeas corpus, finding that 18 U.S. Code 3243 granted Kansas concurrent jurisdiction over Federal crimes which are also defined by State law.

It is our contention that this decision of the Tenth Circuit violates generally accepted principles of Federal Indian law, and is also contrary to the legislative history of the act.

William H. Rehnquist:

Are you saying that it’s inconsistent with the language of section 3243?

Pamela S. Thompson:

Yes, Your Honor, I’m… Justice Rehnquist.

William H. Rehnquist:

I don’t see why that is.

It seems to me that just taking that rather brief statute on its face, concurrent jurisdiction in the State and Federal courts is perfectly consistent with everything that language says.

Pamela S. Thompson:

If you take the language of the proviso, where it says, shall not deprive the courts of the United States, it’s our contention that shall not deprive is not language granting concurrent jurisdiction.

William H. Rehnquist:

Why not?

Pamela S. Thompson:

Because it’s mandatory… shall not deprive the courts of the United States.

William H. Rehnquist:

Well, but concurrent jurisdiction, if a court has concurrent jurisdiction, it surely has not been deprived of jurisdiction.

Pamela S. Thompson:

It has been deprived of exclusive jurisdiction, and as this Court has held for the… at least the last 100 years, jurisdiction under the Major Crimes Act is exclusive with the Federal district courts.

William H. Rehnquist:

The proviso doesn’t say, shall not deprive the courts of the United States of exclusive jurisdiction, it just says of jurisdiction.

Pamela S. Thompson:

That’s correct, Justice Rehnquist, but again, our contention is that you have to analyze this Kansas statute in conjunction with the Major Crimes Act.

Antonin Scalia:

Anyway, why does the United States not continue to have exclusive jurisdiction?

Pamela S. Thompson:

Because the–

Antonin Scalia:

It does continue to have exclusive jurisdiction over Federal crimes, doesn’t it?

Pamela S. Thompson:

–No.

It’s that jurisdiction that is shared by the State of Kansas.

Antonin Scalia:

Is it the Government’s position that the State of Kansas can try Federal offenses in Kansas courts?

Pamela S. Thompson:

No.

That’s not the contention.

Antonin Scalia:

That’s right–

Pamela S. Thompson:

The contention is that–

Antonin Scalia:

–And therefore the United States courts continue to have exclusive jurisdiction over Federal crimes.

Pamela S. Thompson:

–But that’s not how it’s been… our contention is that the Major Crimes Act is… defines Federal offenses, and that therefore that fits right in with the proviso of the Kansas statute.

The Tenth Circuit has held that in that situation, where you also… for example, aggravated battery is of course defined by State law, and when it is defined by State law, then the Federal courts and the State courts have concurrent jurisdiction.

Antonin Scalia:

Well, I think there’s a little confusion that arises from your use in your brief… and maybe there’s no other term, but usually when you say concurrent jurisdiction you mean that two courts have jurisdiction over the same cause of action, or over the same criminal offense.

That’s not what’s at issue here.

What’s at issue here is concurrent legislative jurisdiction, in a sense.

That is, the State courts… the State government can make criminal under State law certain acts on the reservation and try those offenses in State court, and the Federal Government may make criminal similar acts under Federal law and try those in Federal courts.

So that the State courts and the Federal courts don’t have concurrent jurisdiction, they have exclusive jurisdiction of their separate crimes, but it’s only the legislative jurisdiction that’s concurrent–

Pamela S. Thompson:

That’s true.

Antonin Scalia:

–And that’s really what you’re talking about.

Pamela S. Thompson:

Yes.

Since, as this Court stated in Canon v. University of Chicago that Congress acts with knowledge of existing law and, therefore, absent a clear manifestation of contrary intent a newly-enacted statute is presumed to be harmonious with existing law and its judicial construction, any analysis of the Kansas act must be made in conjunction with the Major Crimes Act.

Now, the Major Crimes Act was passed by Congress in 1885 to fill the jurisdictional void left by this Court’s decision in Ex parte Crow Dog, because prior to the passage of the Major Crimes Act, tribal courts had exclusive jurisdiction over crimes committed within their reservation boundaries.

Now, the Major Crimes Act has been interpreted by this Court since United States v. Kagama as vesting exclusive jurisdiction with the Federal courts for an Indian defendant committing one of its enumerated crimes, because the purpose of the act was to provide a Federal forum for the prosecution of major crimes and to protect Indians from prosecution in State court.

Now, in United States v. Kagama this Court detailed many reasons why it felt the Federal courts had to have exclusive jurisdiction over these major crimes: 1) that Indian Nations were, and continue to be today, wards of the Nation, dependent on the United States Government for all political rights.

Secondly, because of local ill feeling, the people of the States where they are found are often their deadliest enemies, and therefore Federal jurisdiction was necessary for their protection.

Pamela S. Thompson:

In other words, the purpose of the act was to protect Indians from the prejudices of their non-Indian neighbors, and to preclude State legislative interference in their affairs.

Now, despite Kagama and its progeny, the court of appeals found that Congress impliedly modified the exclusivity of the Federal courts under the Major Crimes Act.

It is our contention that had Congress wished to modify the Major Crimes Act as it pertained to Kansas, it could have done so by passing the first version of the bill, which is found in ’86 Congressional Record, 5596, and which is set forth verbatim in my brief.

Now, this version expressly provided for concurrent jurisdiction, and explicitly modified the Major Crimes Act as it pertained to Kansas.

David H. Souter:

Well, is it true, as the other side argues, that if it had done that, the act would in fact have constituted a misstatement about concurrent jurisdiction with respect to minor crimes?

Pamela S. Thompson:

At the time that the act was passed, it was unclear whether or not the Assimilative Crimes Act, the General Crimes Act, applied in Indian country, and that issue was not decided until the decision in Williams v. United States in 1946–

David H. Souter:

But it could have been a good reason–

Pamela S. Thompson:

–By this Court.

David H. Souter:

–I’m sorry.

It could have been a good reason to drop the word concurrent just because there was disagreement over that and those who finally passed the legislation were of one view, i.e., that there was not jurisdiction over the minor crimes.

Pamela S. Thompson:

It could have been a good reason, but on the other hand, Justice Souter, Congress has plenary power to deal with Indian affairs.

Had it wanted to grant concurrent jurisdiction to the State and the Federal Government under… well, what became the Assimilative Crimes Act, it could have done so.

David H. Souter:

Well, it could, but it clearly did not want to do so with respect to minor crimes.

Pamela S. Thompson:

That’s clear from the history.

It’s our contention that deletion of the word concurrent and the failure to modify the Major Crimes Act shows that Congress did not intend to grant Kansas concurrent jurisdiction over major crimes.

Now, both the Solicitor General and the Attorney General, and, of course, the court of appeals, excused the failure to modify and to delete the word concurrent with reference to Secretary Burlew’s letter which is part of the legislative history of the act, and as you stated, Justice Souter, because it did not reflect the true situation.

However, as the court in Youngbear held, when legislators delete language, we may assume that they intended to eliminate the effect of the previous wording, and since Congress chose not to include language modifying the Major Crimes Act, it can be assumed that Congress did not intend to convey that jurisdiction to the State courts.

William H. Rehnquist:

Well, under your view of the meaning of the statute, Ms. Thompson, what jurisdiction is conferred on the Kansas courts by virtue of the first part of 2343–

Pamela S. Thompson:

Our contention–

William H. Rehnquist:

–3243.

Pamela S. Thompson:

–I’m sorry.

Our contention, Justice Rehnquist, is that Kansas has jurisdiction over small, misdemeanor crimes, that the Federal Government retains exclusive jurisdiction over major crimes.

William H. Rehnquist:

Then you really read out of that first language the words, to the same extent as its court have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State.

Pamela S. Thompson:

That’s correct, and as we… as I talked about before, the question as to whether the General Crimes Act and the Assimilative Crimes Act apply to Indian country has been… this Court has held that, since Williams v. The United States, that they do in fact apply to Indian country.

The Solicitor General brought up a point in his brief that, well, exactly what was the scope of jurisdiction given to Kansas?

Who was going to have jurisdiction over general crimes or assimilative crimes?

I would urge the Court to hold as the… well, while the Tenth Circuit has held that assimilative crimes are State offenses, the Ninth Circuit has held in U.S. v. Bear and U.S. v. Marseilles, that when the Federal court adopts these assimilative crimes, that they become Federal offenses, and I would urge the Court to hold that way.

Anthony M. Kennedy:

Are there Indian tribes in the State of Kansas which have their own tribal courts?

Pamela S. Thompson:

Yes, Your Honor.

Anthony M. Kennedy:

And the tribal courts punish minor offenses, I take it.

Pamela S. Thompson:

The… let me give you one example.

The Kickapoo Tribal Court has been in existence for the past 3 years.

Just last week, they started to hear their first misdemeanor offenses.

Anthony M. Kennedy:

And that jurisdiction, I take it, would be shared by the State of Kansas under your interpretation.

Pamela S. Thompson:

Yes.

Anthony M. Kennedy:

All right.

So, then, it’s not correct to say that Kansas has exclusive jurisdiction over minor crimes, is it?

Pamela S. Thompson:

No, I do not believe that it is.

It’s just the fact that… well, one of the reasons for the law was the fact that there was a lack of tribal courts, and that the Bureau of Indian Affairs was very reluctant to provide funding for the tribal courts.

There had to be a forum where these small offenses could be adjudicated.

Now, of course, the tribal courts are hearing these offenses.

Again, if we take as an example when Congress wishes to convey criminal jurisdiction, Congress makes that intent unequivocally clear, as it did with Public Law 280 jurisdiction… in particular, 18 U.S. Code 1162, which granted criminal jurisdiction to six States, and the law specifically modified the Major Crimes Act, the General Crimes Act and the Assimilative Crimes Act as it pertained to those States.

It… and, of course, P.L. 280 was passed by Congress in 1953, only a few years after they passed the Iowa statute in 1948.

It seems only logical that had Congress wished to convey total criminal jurisdiction to the State of Kansas, they would have specifically set this forth in the statute.

Absent a clear expression of congressional intent, the interpretation of the statute by the Tenth Circuit Court of Appeals by the Attorney General and the Solicitor General violates the rules of statutory construction, which is applicable to Indians.

For example, laws must be liberally construed to favor Indians, and ambiguous statutes should be liberally construed in the favor of Indians and not to their prejudice.

That, of course, comes from Bryan v. Itasca County.

To interpret the Kansas act as the court of appeals has done would, 1) eliminate the historically exclusive stewardship of the Federal Government over major crimes as found in Kagama, and secondly it would subject Indians in Kansas, in Iowa, in North Dakota to a double prosecution.

Antonin Scalia:

Well, on the other hand, you could look upon it as granting Indian tribes the great benefit of being protected by two criminal laws, Federal law and State law.

They can get the FBI to protect them as well as local law enforcement officers.

I do not know why, in determining whether Indians are being harmed or benefited by this interpretation, we have to look at it from the point of view of the Indian criminal instead of from the point of view of the Indian noncriminal.

Why isn’t it an advantage to the Indian tribes to be protected by both State and Federal criminal laws?

Pamela S. Thompson:

Justice Scalia, we’re… I am not looking at this from the point of the Indian criminal.

I am looking at this from the point of Indian and tribal sovereignty.

The more State interference–

Antonin Scalia:

They don’t have sovereignty anyway.

I mean, the criminal law is going to… it’s not tribal criminal law that’s going to govern, no matter what, right?

Pamela S. Thompson:

–No, it’s going to be the State, but again, we’re looking at this from the… because the criminal… the Indian criminal defendant, he’s going to be punished one way or the other, whether it’s State court or Federal court, but we’re looking at this as an intrusion basically on the rights of the tribes to make their own laws and govern themselves.

Byron R. White:

Well, I thought the Indians supported the Major Crimes Act on the assumption the States would have the power.

Pamela S. Thompson:

Do you mean supported this Kansas act?

Byron R. White:

Yes, the Kansas act.

Pamela S. Thompson:

The Kansas act.

Yes.

Pamela S. Thompson:

Well, as brought out in the brief by amici Native American Rights Fund, as it turns out that at least one tribe, the Potawatomi Tribe, did not support the passage of this act, and in the letters that the chairman of the Potawatomi Tribe wrote to Chairman Rogers, it is quite clear that they disagreed with the passage of this act in its entirety.

They did not want the State to have any kind of jurisdiction over them.

Byron R. White:

How about some other Indians?

Pamela S. Thompson:

We could not–

Byron R. White:

Did any Indians support it?

Pamela S. Thompson:

–We could not find any… any resolution supporting the act.

The only thing that we were able to find in the archives were these letters from the Potawatomi Tribal Council to Chairman Rogers asking that the act not be passed, so there was not total support.

There–

Byron R. White:

Well, was there some support from the Indians?

Pamela S. Thompson:

–The only support that we know about is what is stated in Secretary Burlew’s letter and in the memo from the Department of the Interior, which is found in the legislative history.

Of course, that is his word as to what happened, and obviously that’s not even true because of the letters that we found in the archives from the Potawatomis to Chairman Rogers.

Other than that, there’s no expression of… there are no letters from an Indian tribe saying yes, we support this bill, or from individual Indians saying yes, we want this bill passed.

Harry A. Blackmun:

Ms. Thompson, did the Colorado opposition surface rather late in all this?

Pamela S. Thompson:

I’m sorry, I don’t understand your question.

Harry A. Blackmun:

You said there was opposition by the one tribe which I think you referred to as the Colorado something.

Pamela S. Thompson:

Oh–

Harry A. Blackmun:

Did this surface rather late in the litigation?

Pamela S. Thompson:

–No, it did not, Justice Brennan.

In fact, the first letter that was sent to Chairman Rogers was dated… April 25th, 1940, asking that the law not be passed.

The second canon of construction, as found in Menominee Tribe v. The United States, states that Federal statutes should be construed so as to avoid implicit repeals.

Holding that Kansas has concurrent jurisdiction over major crimes would repeal the Major Crimes Act as it pertains to Kansas.

Antonin Scalia:

But would it be implicit?

Wouldn’t that be an explicit repeal?

Pamela S. Thompson:

Well, because the… it is not explicitly stated in the statute itself that the Major Crimes Act are… that the Major Crimes Act is modified as it pertains to Kansas.

Our feeling is that it would be more of an implicit repeal.

William H. Rehnquist:

Well, what if the… simply the first paragraph and not the second paragraph of 3243 were there, would you still say that that could not be applied according to its language because of the presumption against implied repeal?

Pamela S. Thompson:

Yes, because of… again because of the exclusivity of Federal courts under the Major Crimes Act.

Pamela S. Thompson:

However, the State of New York, which also… which has a law similar to the Kansas law except for the second proviso, in litigation under that law the Second Circuit in U.S. v. Cook has held that that statute standing alone provides the State and Federal Government with concurrent jurisdiction.

William H. Rehnquist:

You know, Congress is certainly trying to effect some change in the status quo with this legislation.

Pamela S. Thompson:

They are, Justice… Chief Justice Rehnquist, and what they are trying to cure, and I believe this by reviewing the legislative history of the act.

There are numerous references to the fact that there are no tribal courts on the reservation, that there is this jurisdictional void which has to be filled, that the Bureau… the Department of the Interior is very reluctant to fund these tribal courts, and allegedly the tribes don’t even want the tribal courts.

Now, there are, of course, references in the legislative history to the major crimes, but the main problem… when you look at the situation in 1940, the Federal courts already have jurisdiction over the major crimes whether the State was assuming that jurisdiction or not.

The problem was, there are no tribal courts, and the State did not have jurisdiction over misdemeanor offenses.

That was the reason the act was passed, was to solve that problem.

Even today, the majority of crimes are small crimes, they’re not felonies.

They’re not serious offenses.

Antonin Scalia:

It seems to me that if you have a prior statute that says grass is green and a later statute is passed that says grass is blue, that is not an implicit repeal of the earlier statute, it is an explicit repeal.

I don’t think you have to say in the later statute to achieve an explicit repeal grass is blue and not green.

I think it’s enough to say grass is blue.

It repeals the earlier one, doesn’t it, and that would certainly be the case if you only had the first paragraph, as the Chief Justice questioned.

Pamela S. Thompson:

Yes.

Yes, it would be.

Antonin Scalia:

Yes.

Pamela S. Thompson:

At any rate, what has happened is that the Major Crimes Act has been repealed by this statute, without Congress ever allowing that or authorizing that to happen.

Sandra Day O’Connor:

Well, that goes back to the question I think Justice Scalia asked you, because how does it in any way affect the authority of the United States to define, prosecute, and punish major crimes?

It doesn’t.

So how is that some kind of a repeal?

Pamela S. Thompson:

Well, Justice O’Connor, in… it may not affect the ability of the United States Government to define crimes or punish crimes, but as it’s working out, the State of Kansas is assuming total jurisdiction.

There is never a case that is going to go to Federal court, so for–

Sandra Day O’Connor:

What would prevent the Federal Government from prosecuting this same man for a Federal offense?

Pamela S. Thompson:

–Nothing would prevent… in fact, that’s one of the problems with the–

Sandra Day O’Connor:

So it’s open to the Federal Government to do that.

Pamela S. Thompson:

–It is.

Sandra Day O’Connor:

How has it been deprived of anything?

Pamela S. Thompson:

Because it’s been deprived of its exclusivity.

When the State can prosecute an Indian defendant, when it is allowed to do that, the Federal courts no longer have exclusive jurisdiction.

It’s not a situation of depriving the Federal court.

Sandra Day O’Connor:

Well, the Federal court still has exclusive jurisdiction of Federal crimes.

It just doesn’t have jurisdiction over State crimes, but it never did.

Pamela S. Thompson:

No, it doesn’t have jurisdiction over State crimes, but the problem is… from the other way is that the State has jurisdiction over these federally defined offenses, that’s the problem.

Sandra Day O’Connor:

No, the State has jurisdiction over the State-defined offenses.

Pamela S. Thompson:

Yes, I’m sorry, I should have… of an offense that is a crime under both the State and under the Federal Government.

Just very briefly I’d like to review the legislative history of the act, which the Tenth Circuit Court of appeals did, because it found the act ambiguous, and I would urge the Court to pay the most attention to the letter from Congressman Lambertson which again is set forth in total in petitioner’s brief.

In that letter, the Congressman, who of course was elected by the people on or near the reservation, states that all parties are agreed that the State of Kansas was to have full jurisdiction for full crimes.

Now, the Solicitor General and the Attorney General have basically made up… or have determined that that letter perhaps should not be given the full credence that it should, because, again there is no mention in that letter that Kansas was to have any jurisdiction over the major crimes, and according to Woodward Manufacturing v. the NCRB, it is the sponsors that we look to when we are determining the statutory word in doubt.

Mr. Chief Justice, I would like to reserve a few minutes for rebuttal.

William H. Rehnquist:

Very well, Ms. Thompson.

Pamela S. Thompson:

Thank you.

William H. Rehnquist:

General Stephan, we’ll hear from you.

Robert T. Stephan:

Mr. Chief Justice, may it please the Court:

I’d like to respond to some of the statements made by Ms. Thompson, but first I would like to point out that the Kansas act has done exactly what the Congress intended.

It’s legalized the enforcement of major and minor crimes on the Kansas reservations, it’s provided courts where there were none.

True, there is now one court on the Kickapoo Nation Reservation, but it is virtually just getting underway.

The other three tribes have no tribal courts.

It met the requests of the four Kansas tribes in 1940 when it was enacted.

It eliminated the administrative nightmare at the time of trying to determine where the crime occurred on the reservation.

Was it a part of an unrestricted allotment, or was it a part of trust property, a restricted allotment, and two-thirds of the land at the time of the enactment of this act was… consisted of unrestricted allotments.

William H. Rehnquist:

General Stephan, whereabouts in Kansas is the Kickapoo Reservation?

Robert T. Stephan:

The Kickapoo… all of the reservations are in the northeast part of the State of Kansas, and they’re Brown County, Jackson County, in that area of the State.

John Paul Stevens:

General Stephan, can I ask you one question?

Robert T. Stephan:

Yes.

John Paul Stevens:

Both the legislative history and your statement just now indicated the four tribes all supported this legislation.

Robert T. Stephan:

Yes.

John Paul Stevens:

How does that square with the amicus briefs and the correspondence in the amicus briefs?

The legislative history is all second-hand information, but the original tribal records seem to point in the other direction.

Robert T. Stephan:

Well, the letter referred to, the Potawatomi Business Council, in those letters the author of the letters also referred to another Potawatomi Business Council, but he didn’t agree with that council, so there was obviously a split of some kind in the tribe, but… and they also indicated in the letter that they realized that this would maintain full jurisdiction to the State of Kansas, and seemed to be more concerned about an attempt by Brown and Jackson Counties in Kansas to collect taxes, and they thought this was a guise to collect taxes that evidently they’d received a judgment for in a Federal court, and that Brown and Jackson County were trying to evade those taxes.

And when you take that along with the statements of the Secretary of Interior… Secretary Burlew at the time… and the Superintendent and the memorandum attached, they say all four tribal councils wanted this legislation, and I think that has to be given great credence.

John Paul Stevens:

Even though the records themselves say we, the business community, and so forth and so on, take the other… voted by a majority the other way.

Robert T. Stephan:

Well, the business council, but we don’t know exactly who this business council is.

In the letter–

John Paul Stevens:

If we don’t know today, how do we know the Secretary knew back when the act was passed?

I mean, his information is all second-hand, too.

Robert T. Stephan:

–Well, it’s all second-hand, but I guess we’ve got one tribe and he’s talking about all four, so at least it’s three to one, and I would give great credence… he was the trustee for the Indian tribes.

John Paul Stevens:

Maybe this is a pretty good argument for not looking at legislative history.

Robert T. Stephan:

Well, it could be that, and I will do my best to stay away from it.

[Laughter]

Counsel did indicate that the Kansas act is an implicit repeal of the Major Crimes Act, and I would point out that the major Crimes Act does not preclude the State from exercising jurisdiction, and certainly there is nothing that is repealed in there.

I notice the Court’s looking at the map, I presume of Kansas.

They just got 14 inches of snow yesterday in that area.

The overriding issue in this case is over the words, exclusive jurisdiction, as used in section 1153, the Major Crimes Act, and do these words mean that the Federal Government has exclusivity over Indian country, thereby precluding the State from exercising jurisdiction over the major crimes listed, or do these words identify the body of law that is to be applied by the Federal courts when conducting a prosecution over crimes committed in Indian country?

The words, exclusive jurisdiction in the Major Crimes Act does not mean that the Federal Government has exclusive jurisdiction to prosecution.

The words do not apply to prosecutorial jurisdiction extended over Indian country, but are only used as a description of the laws which are extended to it.

The clause refers to the body of law and procedure, and not to the exclusivity of prosecution.

It does not confer the exclusive jurisdiction of the Federal courts, but identifies the law that is applied in those courts.

Of course, since jurisdiction over Indian country can only be obtained through an act of Congress, only the Federal Government could exercise jurisdiction pursuant to section 1153, unless through another act of Congress Kansas was given jurisdiction in Indian country.

It is not the language, exclusive jurisdiction, as used in section 1153, that precludes the exercise of State jurisdiction over conduct by Indians in Indian country.

The preclusion flows from the general principles that the State has no inherent jurisdiction over Indians in Indian country, and may exercise jurisdiction only where, as authorized in the Kansas act, there is a clear grant of authority by Congress.

Where does exclusivity come from in the Major Crimes Act?

The exclusivity comes from the fact that Congress delegated authority to the United States in that act, and it means exactly what it says.

You have to look at more than the word, exclusive, and examine the section in its entirety, and when this is done, you can see that exclusivity refers to the manner and body of Federal law which shall be applied, and that section–

Anthony M. Kennedy:

Is the State acting as the agent of the Federal Government when it prosecutes under its own laws?

Robert T. Stephan:

–No, the State is not acting as the agent of the Federal Government.

The Federal Government has given the State authority to execute its laws, the State laws, in regard to crimes that occur on the reservation.

Anthony M. Kennedy:

So I take it there would be no objection under the double jeopardy clause to multiple prosecutions.

Robert T. Stephan:

That issue has never been met by… I am convinced at this point that certainly the better line of thought is that there would be nothing to prevent a prosecution by both the Federal and the State Government.

Anthony M. Kennedy:

In order for that result to obtain, is it necessary to say that what the Federal Government has done is to acquiesce in the exercise of State authority?

Is that the way it works?

Robert T. Stephan:

I don’t know that there’s acquiescence, because the State is not required to maintain the prosecution.

Anthony M. Kennedy:

Well, there’s either acguiescence or delegation.

The only reason I ask is, if there is a double jeopardy problem, that might be one argument in favor of construing the statute as the petitioner wishes us to do.

Robert T. Stephan:

Well, double jeopardy has certainly been an issue that has been raised in other circumstances, and there are prosecutions today under both State and Federal law that arise from the same set of facts, and double jeopardy is not a problem in those instances, and the same is true in regard to Indian reservations.

Anthony M. Kennedy:

That’s like in Barkus v. Illinois, but there the State has its own sovereignty that it’s exercising, and I’m just asking you if we can’t interpret this act as allowing the State to exercise its own sovereignty.

Robert T. Stephan:

Well, the State does exercise its sovereignty in accordance with these acts–

John Paul Stevens:

But that seems somewhat inconsistent with your… excuse me.

Robert T. Stephan:

–I’m sorry.

Anthony M. Kennedy:

That seems somewhat inconsistent with your saying that the United States has delegated its power to the States.

Robert T. Stephan:

If I said that, then I misspoke, because no Federal power was delegated to the State.

The Congress granted to the State authority to enforce its laws on the Indian reservations.

Antonin Scalia:

General Stephan–

Robert T. Stephan:

Yes, sir.

Antonin Scalia:

–I would agree with you that the Major Crimes Act does not imply exclusive Federal jurisdiction but simply describes the jurisdiction whose laws are applied, namely those laws that exist where the United States has exclusive jurisdiction.

I would agree with that but for one word.

Subsection (a) says, shall be subject to the same law and penalties… it does not say, as persons committing any of the above offenses within the exclusive jurisdiction of the United States.

It says… not, as all persons, it says, as all other persons committing any of the above offenses within the exclusive jurisdiction of the United States.

Now, the implication of the word, other, is that an Indian committing such an offense is a person committing that offense within the exclusive jurisdiction of the United States.

Isn’t that the implication of using the word, other?

Robert T. Stephan:

Well, if I understand your question correctly, this Major Crimes Act applies to an Indian perpetrator, whether or not the victim is an Indian or a non-Indian.

Antonin Scalia:

That’s right, but does it not imply that that Indian perpetrator is a perpetrator acting within the exclusive jurisdiction of the United States, because it uses the word other?

He shall be treated the same as all other persons committing any of the above offenses within the exclusive jurisdiction of the United States.

Robert T. Stephan:

The term, exclusive jurisdiction, is an extension of the laws on Federal enclaves, and is not… the exclusive jurisdiction is not maintained from the language of the act itself, but from the fact that in the Major Crimes Act no authority is delegated to the States.

Antonin Scalia:

Well, you say that, but I find within the act itself the word, other, that certainly suggests to me that the act at least implies exclusivity.

Now, one can argue that it is nonetheless subsequently amended by 3243, but it seems to me the word, other, does imply that an Indian perpetrator is within the exclusive jurisdiction of the United States.

Robert T. Stephan:

Well, the Major Crimes Act was originally enacted as a result of the Crow Dog case that said they did not have… that the Federal Government did not have jurisdiction on the reservation in regard to a particular murder case where one Indian murdered another Indian because it was not a Federal enclave.

So when you… so the Major Crimes Act was enacted, and its purpose was to solve that problem and to make certain that major crimes were prosecutable by the United States, and even in that case, or the subsequent case of Kagama that construed the Major Crimes Act, this Court made it very clear that that did not express limitations upon the powers of the State.

Even with the cases that have talked about the exclusive jurisdiction of the Federal Government, this matter has not spoken to a limitation in regard to the powers of the State.

Ms. Thompson referred to the fact that the language, shall not deprive, is mandatory, and therefore Kansas doesn’t have concurrent jurisdiction, and I think that meets basically the same issue that we just discussed.

This reserves a right to the Federal Government to proceed accordingly with the laws that it has enacted.

Robert T. Stephan:

The Kansas act is unambiguous.

The first sentence, standing alone, unambiguously confers on Kansas criminal jurisdiction over all criminal offenses committed by or against Indians on Indian reservations.

Congress by the passage of the Kansas act granted to Kansas jurisdiction that had only been granted… previously had only been granted to the Federal Government.

Just as unambiguously, the second sentence preserved the subject matter jurisdiction of Federal courts over crimes defined by Federal law.

The Federal courts retained their jurisdiction to entertain any prosecution under the Major Crimes Act.

The canon of construction that full effect should be given to all of the statute’s language leads to the conclusion that the Federal Government has concurrent jurisdiction with the State’s unqualified grant of authority.

Congress created a body of law that applies to Federal enclaves that are within the sole and exclusive jurisdiction of the United States by the enactment of the Federal Enclaves Act.

This body of law was extended to Indian country by the Major Crimes Act and the General Crimes Act, but those acts do not make Indian country a Federal enclave, and for that reason, it is the body of law that applies and not the exclusive authority of the courts of the United States that was extended to Indian country.

And so reference to, within the exclusive jurisdiction of the United States, refers to the subject matter jurisdiction of the body of law to be extended to Indian country, and not the type of jurisdiction that was conferred upon the Federal courts, because Congress did not make Indian country a Federal enclave.

This act has worked as it should.

It served the tribes and the people of the State of Kansas well, and the judgment of the Tenth Circuit was correct.

William H. Rehnquist:

Thank you, General Stephan.

Mr. Kelley, we’ll hear from you.

William K. Kelley:

Thank you, Mr. Chief Justice, and may it please the Court:

I just have a few points to make.

First, on the language of the statute, it’s quite clear, in our view, that the statute gave Kansas complete jurisdiction to prosecute offenses to the full extent of State law.

The second sentence of the statute, it seems to us, merely maintained Federal jurisdiction where it existed.

It is not an implied repeal of the Major Crimes Act to give the State jurisdiction over a crime under State law, because after the passage of section 3243 and before, the Federal courts had jurisdiction to entertain major crimes prosecutions under section 1153.

Now, petitioner has referred to the first version of the bill and its inclusion of the word, concurrent, and the reference to modification of the Major Crimes Act as indicating that Congress must have meant something different in the final version of the bill.

In fact, we think Congress did mean something different, and it’s fully explained in the legislative history what Congress meant.

Prior to the passage… excuse me, at the time this statute was under consideration, the Federal Government did not have jurisdiction over so-called minor crimes under what is now section 1152 between two Indians.

The Federal Government does not have that jurisdiction today.

It’s quite clear, however, that under the Kansas act the State has jurisdiction over minor crimes between two Indians.

Moreover, at the time the act was under consideration there was some uncertainty as to the applicability of the Assimilative Crimes Act in Indian country.

That uncertainty, of course, was removed by the Court’s decision 6 years later in Williams v. United States, but it’s quite clear that Congress meant, by removing the word, concurrent from the final version of the bill, to make clear that Kansas had more jurisdiction than the Federal Government had to that point.

Thus, the amendment was intended to make the bill broader rather than narrower than the first version.

Now, another problem in petitioner’s position, of course, is that the modification referred to in the first version of the bill referred to what was then… what has now become section 1152, so-called minor crimes.

Petitioner’s position in this Court, however, is that that’s all the State was granted jurisdiction over.

If the removal of the modification of the Major Crimes Act reference in the version of the bill was intended to retain exclusive jurisdiction over major crimes prosecutions, the same must be true of jurisdiction over section 1152 prosecutions.

The States generally do not have jurisdiction over minor crimes involving Indians unless Congress grants it.

William K. Kelley:

Thus, the petitioner can have it one way but not both, it seems to us.

That is, under her view, there should be no concurrent jurisdiction at all.

William H. Rehnquist:

You say under her view, then, or under the petitioner’s view, the Kansas courts would have gotten no additional jurisdiction under the first sentence.

William K. Kelley:

Well, the Kansas courts would have gotten jurisdiction, Mr. Chief Justice, over minor crimes between two Indians, because Federal jurisdiction did not exist over those crimes then, and it does not today, and there’s some question whether Kansas would have had jurisdiction over assimilative crimes that are defined by reference to State law rather than general Federal crimes defined by reference to Federal law.

The proviso in the Kansas act refers to not depriving Federal courts of jurisdiction over offenses defined by Federal law, and if assimilative crimes are viewed as being defined by reference to State law, then an argument can be made that the State would have jurisdiction over those offenses as well.

But it’s quite clear that Congress meant to grant the State more than concurrent jurisdiction.

That is, more than the Federal courts had.

It’s also quite clear, however, that Congress meant to preserve Federal major crimes jurisdiction.

That jurisdiction was in one sense exclusive at the time.

That is, only the Federal Government could prosecute crimes arising out of conduct that was made criminal under the offenses enumerated in the Major Crimes Act.

After passage of the act, the State has that power as well, to prosecute under State law.

The Federal jurisdiction to prosecute crimes defined by Federal law, which is what the statute says, was exclusive then, and it remains exclusive today.

With respect to the lack of clarity as to the consent of the tribes at the time, Justice Stevens, in response to your question earlier, it is somewhat unclear from history what the positions of the tribes were.

As General Stephan mentioned, there was some question as to the legitimacy of the Potawatomi Business Committee that sent the letter at issue.

We would submit, of course, that the Secretary of Interior was the person in a position to determine which group spoke for the tribe.

All we know from the legislative history is that the executive branch understood the four tribes to want the legislation, and Congress, of course, acted on that understanding, so to the extent that we’re trying to determine the meaning of what Congress enacted, its understanding of what the tribes wanted at the time, of course, should be what counts.

Now that, of course, does not undermine our position that the canon and the statutes should be construed liberally in favor of Indians does not warrant a different result here for at least two reasons: 1) it’s unclear that the canon urged by petitioner is in favor of the Indians generally.

Of course, it’s in favor of him, but the concerns that animated this statute were to protect tribal law and order on the reservations at the time, and we submit that it was in the interests of the Indians for that statute to be passed for that end.

Moreover, no canon of construction can overcome what we regard as the plain language of the statute, and of course it’s quite plain legislative history.

If the Court has any further questions… otherwise, I will submit it.

Thank you.

William H. Rehnquist:

Thank you, Mr. Kelley.

Ms. Thompson, you have 3 minutes remaining.

Pamela S. Thompson:

The first point I’d like to make is regarding the argument of double jeopardy.

It’s not our contention that the State of Kansas, when it’s acting under this law, and the Federal Government… the State of Kansas when it’s acting under this law is some sort of an arm of the United States Government.

Our contention has always been that the United States Government is one sovereign and the State of Kansas is another sovereign, and therefore an Indian person could, conceivably, be left wide open to double prosecution by both the Federal Government and by the State courts.

Secondly, regarding the legislative history of the act, again I would urge the Court to give full credence to what Congressman Lambertson said in his letter… that the State of Kansas was to get full jurisdiction for small offenses.

This is an expression of the will of Congress.

If the State of Kansas was to have jurisdiction… concurrent jurisdiction over major crimes, certainly Congressman Lambertson would have put that in his letter.

It would have taken another five or six words to say, and the State will have concurrent jurisdiction over major crimes.

Pamela S. Thompson:

Taking into consideration the fact that, as this Court has held for the past 100-plus years, jurisdiction in the Federal court over the major crimes is exclusive technically under this law, that does not do away with the exclusivity of the Federal courts.

However, in reality it does, because if the laws–

David H. Souter:

Of course, in your view, it would have been very simple… if I may just interrupt you on the textual point, it would have been very simple in the second sentence simply to add one more word.

This section shall not deprive the courts of the United States of exclusive jurisdiction over offenses.

That would have been the textually easier way to get to the point that you want us to reach, and yet Congress didn’t follow that.

Pamela S. Thompson:

–No, they did not do that, and again, when they… Congress in 1953 was in the process of passing Public Law 280, they were very specific in granting the States given criminal jurisdiction that the Major Crimes Act and the General Crimes Act and the Assimilative Crimes Act would be modified accordingly.

John Paul Stevens:

Ms. Thompson, can I make one comment that you might want to comment on.

You take Congressman Lambertson as the gospel on these issues, and he said the Indians were in favor of the legislation.

Pamela S. Thompson:

Because I believe from that letter it is clear that he is interpreting the legislation.

The will of Congress is that–

John Paul Stevens:

But he also says, as a matter of fact, all parties are agreed on this bill, the Indians and so forth.

So he thought the Indians wanted this bill enacted.

Pamela S. Thompson:

–But again, only for small offenses.

As you know, the legislative history of the act is only four or five pages.

John Paul Stevens:

Yes, but your… the amicus brief suggests that the Indians were opposed to the bill, period, not as to part of it, and this history suggests they were in favor of the bill.

Pamela S. Thompson:

I can’t answer that question.

Perhaps–

John Paul Stevens:

At least it is clear the record before Congress indicated the Indians favored this legislation.

Pamela S. Thompson:

–That’s true.

William H. Rehnquist:

Thank you, Ms. Thompson.

Pamela S. Thompson:

Thank you.

William H. Rehnquist:

The case is submitted.