United States v. Mazurie – Oral Argument – November 12, 1974

Media for United States v. Mazurie

Audio Transcription for Opinion Announcement – January 21, 1975 in United States v. Mazurie

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Warren E. Burger:

We’ll hear arguments next in 73-1018, United States against Mazurie.

Mr. Sachse, you may proceed whenever you’re ready.

Harry R. Sachse:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the Court of Appeals of the Tenth Circuit to review a decision of that case that held unconstitutional 18 U.S.C. 1154, one of the principal laws regulating the introduction of liquor into Indian reservations and 18 U.S.C. 1161, law of the same purpose.

In doing so, it reversed the District Court which had convicted the defendants in this case.

I think the best way to approach this case is first with an analysis of these statutes for a few minutes and then with the exact facts of this case.

The facts will make sense in the context of law.

The problem of liquor on Indian reservations has been a serious problem to Indian tribes and to Congress for a long time.

And in the 1800’s, Congress absolutely prohibited the introduction of liquor into Indian country and absolutely prohibited the sale of liquor to Indians who are under the guardianship of the United States no matter where they were.

This remained essentially the law until 1949.

In 1949, the Act which is now Section (c) of 18 U.S.C. 1154, that’s on page 3 of our brief, was passed.

That Section redefined Indian country.

You know, Indian country has been defined include all the land inside an Indian reservation.

That Act redefined Indian country for the purposes of the liquor laws to exclude rights of ways through reservations and non-Indian communities.

The Congress in making that amendment which was just part of a general set of amendments to 18 U.S.C. said that it was to bring the statute more into accord with the way the statute has actually been enforced.

Then, the practical effect of it of course, was to say that where there were little non-Indian communities on an Indian reservation that liquor could be sold there or that a truck passing through an Indian reservation couldn’t be stopped because it was carrying liquor.

Then in 19 —

William O. Douglas:

Subsection (c) says an absence of a three-year statute.

Is it — is there any statute?

Harry R. Sachse:

There’s nothing in the treaty in no particular statute that would apply here.

There could be a treaty that would say nowhere in the reservation ever or something like that.

Then in 1953, 18 U.S.C. 1161 was passed.

This was a local option statute.

Indian people had felt sometime that the law is totally prohibiting introduction of liquor into Indian reservations was discriminatory against them and unnecessary.

And Congress reacting to that passed a very limited statute that said, liquor was still illegal in Indian country as defined by these two statutes but it could be legally introduced if: number one, it did not violate state law and number two, the tribe passed an ordinance allowing it to be introduced and that ordinance was approved by the Secretary of the Interior and published in the Federal Register.

That was a degree of control over the introduction into Indian country that 18 U.S.C. 1161 provided.

Now, facts of this case, the Wind River Reservation is a major reservation in Wyoming, the Shoshone and Arapahoe tribes are there.

In 1953, after the passage of this, of 18 U.S.C. 1161, they took advantage of the new Act and passed an ordinance saying that liquor could be introduced into the reservation if it was done so in accordance with state law.

After that ordinance was approved by the Secretary of the Interior, advertised in the Federal Register.

After they passed that ordinance, the predecessors of the Mazurie has bought a piece of property on the reservation and opened a bar.

Harry R. Sachse:

They then operated that bar where they had a valid state liquor license.

They operated the bar for 18 years then the tribe reconsidered its original resolution, decided that it shouldn’t have the reservation be wide open.

It passed a new ordinance, an ordinance — ordinance number 26 which provided that to introduce liquor into the reservation, that person henceforth would have to obtain a tribal license as well as the state license.

This regulation which set out in some details, the information that had to be supplied to the tribe, the standards for obtaining a tribal license, was approved by the Secretary of the Interior.

It’s a regulation that’s pretty much like any municipality’s regulation on liquor license.

This was approved by the Secretary of the Interior, advertised in the Federal Register.

William O. Douglas:

Where is the regulation?

Harry R. Sachse:

The regulation, I’m sorry to say, it was not reproduced in the appendix.

It is in the record and it’s also here but it’s in the record of the case.

William O. Douglas:

Here being.

Harry R. Sachse:

I mean, it’s in — I have a copy of it right here but it’s in the record of the case.

William H. Rehnquist:

It was introduced at the trial.

Harry R. Sachse:

It was introduced at the trial and stipulated.

It was stipulated.

It was validly adopted regulation and the publication of Federal Register was also introduced at the trial.

The regulation allowed an existing bar to continue until it had to get a new state license and at that time required it to apply for the tribal license as well.

The Mazuries did not apply for the tribal license.

They were notified then to apply.

They then did apply for the tribal license, gave the information that was required and a public hearing was set up by the tribal counsel to hear their application.

At that hearing, there was considerable testimony.

This is in the record also, of disorderliness at that bar.

There was a testimony that the bar was near a housing project where a lot of old people lived and that people came out of the bar at late night making all sorts of noise.

There was a testimony that there have been summary killings on the reservation, all of which have been associated with the use of alcohol that there had been fights in this particular bar.

That the bar had been selling to minors.

As a result to this, the tribe refused the liquor license to the bar.

Mazuries then closed the bar for a period of several weeks.

They then decided to reopen it in defiance of the action of the tribe.

At that point, the —

Potter Stewart:

Mr. Sachse, did all of these untoward incidents happen during the 18-year period or just toward the end of it?

Harry R. Sachse:

I don’t think the record shows precisely when a particular incident happened, Your Honor.

Harry R. Sachse:

I’m unable to determine from the transcript that was there whether these things occurred for the last few days or earlier.

The B.I.A then closed the bar and the U.S. Attorney brought a misdemeanor charge against the Mazuries under 18 U.S.C. 1154 for operating a bar in an Indian country as defined in that statute without the consent of the tribe.

At the trial, almost everything I’ve said up to now was stipulated.

Stipulation is in the appendix.

The trial focused on the question of whether the Mazuries could claim that their bar was in a non-Indian community and thus was accepted from the tribal regulation.

The Government introduced the witnesses on this point and the testimony was quite complete on this question.

The Government showed that the bar was located three quarters of a mile from Fort Washakie which is an unincorporated village which is the headquarters of the tribal governments.

They showed that there had been a housing survey made a year or so previously to determine the condition of housing in that area and that it showed, and the man who made the survey was there, testified and was cross-examined, that within a 20-square mile area of Fort Washakie, there were only 212 families living and that of those a 170 and a half were Indian families and that 41 and a half were non-Indian families and the halves were one mixed family that lived in the area.

They counted that family as a half each way.

The Government also brought in the superintendent of the school district there and there was a state school supported both by federal funds and state funds open to all the children who lived in that area and the superintendent testified that of 243 students that 223 were Indian and the school was two and one-half miles from the bar.

Mr. Mazurie himself testified that “we are kind of out there by ourselves, you know.”

He also testified that this bar served both Indians and non-Indians.

That when there was trouble, if it was trouble with Indians he’d call the tribal police; and if there was trouble with non-Indians he’d call the county sheriff.

On the basis of this record, the — I should say the case was tried before a judge alone, it was jury waived.

On the basis of this record, the district judge found that the defendants had opened the bar in Indian country in violation of the statute and implicit in that finding, of course, was that it did not fit in the exception of the statute if a bar run in a non-Indian community because that was the real point of the testimony at the trial.

Now, the Court of Appeals found that the term non-Indian community is undefined and therefore no one could tell whether he was operating a non-Indian community.

Therefore, the entire statute, 18 U.S.C. 1154 which prohibits the introduction of liquor into an Indian country is unconstitutionally vague because it contains this exception.

The Court went on to say even if the statute is not unconstitutionally vague; we doubt that Congress has the authority to prohibit sales of liquor by a non-Indian on land that he owns in an Indian reservation.

And then went on to say, but even if Congress does have that authority, it’s an unconstitutional delegation of that authority to let the tribe itself make the decision.

Even under the limited circumstances of this statute as to whether liquor can be sold within the Indian country in its reservation.

We think, as you know, that this decision of the Court of Appeals is just simply dead wrong.

That first, on the question of the vagueness of the statute, certainly, one can postulate a situation in which it might be difficult to tell whether one is in an Indian community or non-Indian community.

Actually, in 25, 26 years of application of the statute apparently that kind of problem hasn’t come up but this is not a First Amendment case.

This is an ordinary criminal case.

And the test in the case such as this is not whether one can find vague areas but whether the statute was vague as applied to these defendants.

Congress meant something sensible by the words “non-Indian community” and there’s no sensible definition of non-Indian community that could include a bar three quarters of a mile from the tribal headquarters in an area with one of the highest concentrations of Indian families that you often find in an Indian reservation.

I think the Court’s — I think I don’t need to recite to the Court its test in the United State versus National Dairy Corporation that that test is applicable and I think Justice Holmes’ statement in the Wurzbach case quoted recently by the Court in Broderick versus Oklahoma is also quite applicable.

That if there’s any difficulty in borderline cases, I interpose, there would be time enough to consider it when raised by someone whom it concerns.

It’s quite clear that the Mazuries knew they needed this tribal license, they only opened the bar after the tribe that passed its ordinance and that as far as they’re concerned, they simply don’t have standing to raise what might be some borderline question in some other case.

Now, on the question of the authority of Congress, that’s absolutely clear that Congress had totally prohibited sales of liquor in the Indian reservations before it modified those regulations that prohibition covered both Indian-owned and non-Indian owned land.

Harry R. Sachse:

The constitutional authority for this is Article I, Section 8 of the Constitution which gives the Congress authority over trade with the Indians and this Court flatly held years ago in United States versus Perrin that Congress has the authority to regulate the sale of liquor within Indian country whether it’s on privately held or publicly held land and Perrin is not the only case.

Practically, every aspect of that law was litigated at one time or another and the half-dozen cases on page 15, 16 of our brief that support this point.

Now, —

Because I suppose Mr. Sachse, one can sympathize with the Mazuries.

It had this business for 18 years and all of a sudden, they can’t have it.

Harry R. Sachse:

Well, I don’t sympathize with them too much because they opened the business on an Indian reservation because the tribe had made one of two choices, either to allow or not to allow, or to — the introduction of liquor.

Now, they knew that that was an inexorable choice that if things didn’t work out, the tribe could change this and when the tribe did change it, that they’d have to apply for tribal license or could be totally prohibited if the tribe just said “no liquor on the reservation.”

So they went in to make profit from the opening of this reservation to sales of liquor and there’s no vested interest there that I can see.

And I should point out that subsequently, the state also denied their liquor license.

This didn’t render the case moot because they had already been convicted of the federal offense but the state also whatever reasons felt that this bar shouldn’t continue.

As to the delegation of authority proposition, I just want to make several short statements.

One is that an Indian tribe is a governmental unit that this Court has recognized that when the tribe — that reservations were reserved, is the area where the tribe’s governmental authority would apply, for instance in the McClanahan case that a tribe that a state ordinarily doesn’t have jurisdiction inside an Indian reservation, that narrow exceptions have been drawn in matters purely affecting non-Indians the state will have jurisdiction.

But where an important Indian interest is at issue and the sale of liquor within an Indian reservation, I think it’s clearly such an interest that the tribe does have a certain governmental authority and there’s quite a good argument that could be made that even without any statute of Congress, the tribe would have the right to prohibit the sale of liquor within the reservation.

And I refer the Court to rather old cases of this Court leading one of which is Morris versus Hitchcock which is stated in our brief.

But here, we don’t have to get into the more difficult question of a tribe’s general authority over non-Indians who live on the reservation because Congress which the Court over and over has recognized is having plenary authority in this area has specifically granted this legislative power and has done it in a very limited and restricted way with full account for the interest of non-Indians.

The very exception that’s attacked for non-Indian communities recognizes and protects a non-Indian interest here and the requirement that the regulation be approved by the Secretary of the Interior is — makes this a very limited delegation of authority and that it be advertised in public — Federal Register, so that everyone will know that it’s there.

And I point out that this Court has stated numerous times that in assuming responsibility for the Indians, I’m thinking here particularly of the Mancari case which the Court decided last year.

But it relies on a whole line of cases before that Congress necessarily has the power to do the things that are reasonably necessary to perform that trust responsibility and nothing could be a better exercise of the trust responsibility than to return in this controlled and limited way, some power to the tribes to decide whether there’s very important problem to the tribes is to be handled by a complete prohibition or by other methods.

I have one other thing I want to say before I sit down but I think my time is up for —

Warren E. Burger:

You may proceed for a minute, Mr. Sachse.

Harry R. Sachse:

Well, I would say this that I think behind the Tenth Court’s opinion as a proposition that an Indian tribe shouldn’t ever make a decision that affects a non-Indian and that the idea that a non-Indian has to submit himself to the tribe’s jurisdiction on whether to open a bar there is simply some way on non-Indian American, on White American or something like that.

But that this Court’s decision in Williams versus Lee makes it clear that that’s not so that in appropriate limited situations, a person does have to go to the tribal authorities.

Warren E. Burger:

You may develop that after lunch if you wish.

[Lunch Recess]

Mr. Sachse, you — you have about eight minutes left altogether.

Harry R. Sachse:

Unless the Court has some question on what I’ve just said, I’ll save this remaining time for rebuttal.

Warren E. Burger:

Fine, we may have the questions later.

Mr. Hamilton.

Charles E. Hamilton:

Mr. Chief Justice, may it please the Court.

I live in Riverton, Wyoming and we are centered approximately in the center of the Wind River Indian Reservation which is a reservation made up of the Shoshone and Arapahoe tribes and which has, I’m sure you are aware constitutes considerably over two million acres.

Charles E. Hamilton:

The history of this reservation has been varied and sundry with a considerable amount of land being removed from the reservation by the federal government all of that north of the Wind River and they then started distinguishing the cases based on what was south of the Wind River which is the area which we have which they call the portion of that which had not been taken away.

Now, the basis for the patent in this case which was rendered to my class predecessor in title was 34 Stat.

182 which states among other things that the United States Government upon the issuance of that patent without restriction thus thereby relinquished all jurisdiction over that particular portion of land.

So then, who has jurisdiction over that land and that is taken up immediately by Article XXI, Section 26 of the Wyoming Constitution which says that the minute a patent is issued that the — excuse me — that the land becomes subject to the exclusive jurisdiction of the State of Wyoming.

Now, Mr. Mazurie and the Blue Bull Inc. are both legal citizens of the State of Wyoming.

They are then subject to the rules and regulations of dual citizenship, that of being citizens of the United States of America and as being citizens of the State of Wyoming.

Enrolled members of the Shoshone and Arapahoe tribe, on the other hand, are the beneficiaries of three levels of citizenship, those of being citizens of the United States of the State of Wyoming, and of the Shoshone and/or Arapahoe tribe.

This is a very exclusive club, and a very exclusive group.

You cannot belong unless you have 25% Indian blood on your father side.

Now, there are many people on that reservation who have an excess of 50% Indian blood but who were born out of wedlock, things of that sort.

These people are not eligible for tribal membership.

You have to pass all of the rules and regulations.

You have to be approved by the tribal council before you can even belong to it.

There a few more than 4000 total enrolled Indians on the reservation.

There are 25,000 people who lived within the exterior boundaries of that reservation.

Obviously, the majority of the people who are there and who are affected by any rules and regulations of the tribal council are non-Indians.

I don’t know —

Warren E. Burger:

Non-Indians technically, in the sense you were just talking about?

Charles E. Hamilton:

Yes sir.

In other words, I don’t —

Warren E. Burger:

It is including whites and the marginal group who can’t get into the club?

Charles E. Hamilton:

Yes, sir.

In other words, I don’t — the conversation has been all the way through this matter.

All three levels of course including here today, Your Honor.

That we are talking about the rights of the Indians to self-determination, to self-government as opposed to non-Indians who I guess is everyone else.

Now, just because you don’t belong to the club does not make you a non-Indian, I guess it does, I don’t know.

That’s one of the problems that I’m having with 1154 (c) because if I can’t tell who the players are in the game, then it’s pretty — or what the rules or what kind of a ball is in play, then I’ll have a tough time measuring out the field.

So, what we’ve been up against in this case is trying to determine just what 1154 (c) means.

Does it mean that the community must be predominantly enrolled Indians?

Does it mean that the community must be predominantly people of a certain percentage of Indian blood and if so what?

Charles E. Hamilton:

Does it mean that they must go to an Indian school or that they must speak some Indian dialect?

That they have a certain color of skin?

That they shave or don’t shave?

What — where is the criteria?

There isn’t any which anyone can reasonably understand.

William O. Douglas:

My understanding is that it varies from tribe to tribe.

Charles E. Hamilton:

Yes sir, that’s true.

William O. Douglas:

There’s no standard federal regulation.

Charles E. Hamilton:

That’s correct, Your Honor.

William O. Douglas:

Of quarter ’64.

Charles E. Hamilton:

So far as enrollment is concerned.

Yes sir, that’s correct.

But the Shoshone and Arapahoe tribes and I had considerable problems practicing law up there over the past years in trying to go to the tribal council with people that I felt in my opinion were qualified to be enrolled and have them summarily dismiss me and say, “We don’t want to listen to you Mr. Hamilton” and of course, there’s no appeal, of course.

And so, these people were not enrolled.

And it’s kind of a — it’s kind of a personality thing up there and it’s a very difficult thing to deal with.

William H. Rehnquist:

Could your client have come within any of the possible definitions of 1154 (c) that you mentioned a moment ago before Justice Douglas asked you the question?

Charles E. Hamilton:

So far as the criteria for admittance into the club, no sir.

He would not.

William H. Rehnquist:

Could this establishment have been deemed within a non-Indian community under any of those tests?

Charles E. Hamilton:

Well, I don’t know.

In other words, it says that if you can — if the Government can prove and please understand it’s not a matter of affirmative defense on our part.

This is a criminal case.

And I differ with my respective colleague here who argued that we have the burden of proving that we were in a non-Indian community.

We have the burden of proving nothing because we were the defendants in a criminal case.

But the goal is it is a burden of the Government to prove beyond the reasonable doubt in this matter and in all matters.

William H. Rehnquist:

(Voice Overlap) the defense of insanity?

Charles E. Hamilton:

Excuse me?

William H. Rehnquist:

What about in a normal criminal case in the State, frequently, the defense of insanity is the burden that is placed on the defendant?

Charles E. Hamilton:

Yes sir but that’s not in a particular statutory procedure which allows — which first of all gives a defendant the choice about whether or not to plead that defense and if so, then he is subjected to the following conditions.

That is not the case here.

Charles E. Hamilton:

The case here says that the Government has the duty of proving beyond the reasonable doubt: one, that you sold liquor, which we admit; two, that you are located within the exterior boundaries of a reservation which we admit; third, that you are not in a — that you are not located in a non-Indian community.

They did not prove beyond the reasonable doubt one of the elements of this crime, which is that we were not located in a non-Indian community.

You see what’s wrong with the statute is it has a double negative in it which makes it very to understand in the beginning.

But the United States did not prove anything in that regard.

It was completely up for grabs.

Nobody knew when we walked out of the District Courtroom in Cheyenne what was going on.

Warren E. Burger:

Excuse me, how did they offer that proof in that respect by maps and —

Charles E. Hamilton:

Well, Your Honor, I had a map of that reservation which is a list of an exhibit in this case and which was about 10 feet by 15 feet square and I spread it and I went and took a red pencil and marked off every piece of deeded land on that reservation.

It took two-and-half days with two people and a red pencil to do it.

That’s how much there is.

And that map was in exhibit and Fort Washakie was placed there and the land around Fort Washakie is in fact about right in that area is about 50% red.

So, I kept asking both chiefs, in other words, both chairman of the respective tribal councils, the Arapahoes and the Shoshones.

I said, “Where is the boundary line between the community and the country?”

“Where is the — is this place in the community?”

They didn’t know.

I asked Mr. Hobbs who has been the superintendent of the reservation works for the Bureau of Indian Affairs since 1961.

I said, “Mr. Hobbs, you are at the administrator of this reservation, where are the boundary lines?”

I say, “Well, is this a non-Indian community?”

“I don’t know.”

There just wasn’t any burden of proof met at all.

Okay.

So, let’s assume that — and based on this and on these facts, the Tenth Circuit said, “We’re sorry, we just cannot, you know, uphold this conviction.

You just totally failed in your burden of proof.”

Who was the judge who proved that your client’s lands would be private lands?

Who proved that?

Charles E. Hamilton:

Yes, Your Honor that was stipulated.

That was stipulated.

Charles E. Hamilton:

Yes sir, it’s fee-patented land without any reservation at all except the usual reservation in that part of the country as to irrigation ditches and things of that constructed by the Government.

You see, the problem with Wyoming, at least the problem to many of the Wyoming residents is that 48% of the State belongs to the federal government.

Sometimes it’s a little difficult for the Wyoming residents to live in harmony with the big brother, so to speak, because of the large, large Government ownership in the State.

Charles E. Hamilton:

Now, —

Thurgood Marshall:

I’m still worried about this burden of proof.

Charles E. Hamilton:

Yes, sir.

Thurgood Marshall:

How are you sure it’s on the Government to show that this is on the excluded territory?

That it’s not in the excluded territory.

Charles E. Hamilton:

Your Honor, under the terms and conditions of the statute, the sale of alcohol and traffic in alcohol with Indians is allowed, generally.

In other words, the 1953 statute said because of the racial discrimination involved by not allowing the Indian people to drink, we hereby will allow them to drink.

Thurgood Marshall:

Providing they agreed to it.

Charles E. Hamilton:

Provided they agreed to within the exterior boundaries of their reservation.

Alright sir.

So, in 1954, they agreed to it in this reservation.

Then along came 1153 or 1154-C in 1949 and they said, and the Congress then said that because of the fact that there are so many little towns on these reservations, which have liquor outlets now, we assume that that Section should be made for them.

Now, there is another liquor outlet.

Thurgood Marshall:

But why is the burden on them to prove the absence of exception rather than your burden to prove that you’re within the exception?

Charles E. Hamilton:

Well, Your Honor, so far as I am concerned, they didn’t prove anything.

This bar as we prove that this bar is located on a county right of way.

Thurgood Marshall:

Within the big boundary lines?

Charles E. Hamilton:

Yes, sir.

Thurgood Marshall:

They did prove that.

Charles E. Hamilton:

Within the huge boundary lines, yes sir.

Thurgood Marshall:

Right.

They proved that.

Charles E. Hamilton:

Yes, sir.

Thurgood Marshall:

And you say that it did say that nobody to prove whether it’s in the exception or not.

Charles E. Hamilton:

That’s correct.

Thurgood Marshall:

So that, if your burden is to show that it’s within the exception, you lose.

Charles E. Hamilton:

Well, Your Honor, I don’t have any burden, it’s a criminal case.

That’s what I’m saying and —

Thurgood Marshall:

Well, I know of several criminal defenses that are affirmative defenses.

Charles E. Hamilton:

Yes sir and this does not happen to be one of them.

Thurgood Marshall:

Unless you call that an exception.

And —

Charles E. Hamilton:

Your Honor, I know of no statute which requires this criminal — this as set out as an affirmative criminal defense such as insanity.

But as you know — excuse me.

Warren E. Burger:

You answered that this an essential element of the crime?

Charles E. Hamilton:

Yes, Your Honor.

Thurgood Marshall:

The exception?

Charles E. Hamilton:

Yes.

Alright.

William O. Douglas:

Except for the subdivision C, is there any reference, as many references to Indian country?

Is there anywhere in the statute, any reference except in C to non-Indian communities or even to an Indian community?

Charles E. Hamilton:

No, sir.

William O. Douglas:

It’s the only place.

Charles E. Hamilton:

That’s the only place and there is no — there are no guidelines or definitions whatsoever.

William O. Douglas:

It’s the definition of Indian country but not of Indian communities and I gather the District Court found that this was Indian country right?

Charles E. Hamilton:

Yes, Your Honor.

William O. Douglas:

But not whether or not it was an Indian community or non-Indian community.

Charles E. Hamilton:

That’s correct.

And to think about it is if the burden of proof is on the Government to prove that this is not a non-Indian community.

There’s a double negative again.

William O. Douglas:

Which is to say what, to prove it is an Indian community?

Charles E. Hamilton:

Yes, or they must — it’s an element of the crime for them to prove that it is an Indian community because of the exception in the law.

Now, I will call the Court’s attention to the fact that my client was prosecuted under Section 1154 which —

William O. Douglas:

Mr. Hamilton.

Charles E. Hamilton:

Yes, sir.

William O. Douglas:

The district judge found, as I read the record, that the land was an Indian country.

Is it your position that there was no evidence to sustain that?

Charles E. Hamilton:

No, Your Honor.

We admitted that it was then an Indian country because —

William O. Douglas:

The position —

Charles E. Hamilton:

Because it is under 115 — under the definition of Section 1151.

William O. Douglas:

It must be an Indian country —

Charles E. Hamilton:

Yes within the exterior boundaries of the reservation, yes sir.

William O. Douglas:

It could be an Indian country and not a non-Indian country.

On a non-Indian community

Charles E. Hamilton:

Well, you can be an Indian country and be on a non-Indian community.

Like Riverton.

Charles E. Hamilton:

But well — but that presents a problem and that the southern part of Riverton is predominantly within the Indian and Mexican people.

They live down on one side of town.

Now, is part of non-Indian community an Indian community?

Where’s your guideline?

You mean it might be a non — an Indian community even though (Voice Overlap) 20% of the population were Mexicans or whites or something else.

Charles E. Hamilton:

Yes, sir.

At the same — it might be a non-Indian community although 90% were Indians right then and there.

Charles E. Hamilton:

Certainly.

But where is the guideline?

William H. Rehnquist:

Well, if you —

Charles E. Hamilton:

And what’s an Indian or what’s a non-Indian?

William H. Rehnquist:

If 11 —

Charles E. Hamilton:

Who tells us that?

William H. Rehnquist:

If 1154 (c) provides that the term Indian country as used in the Section does not include fee-patented lands in non-Indian community and the District Court finds that this took place in Indian country, he is negating the application of that exception, isn’t he?

Charles E. Hamilton:

No, sir.

William H. Rehnquist:

Why not?

Charles E. Hamilton:

Because he did not make any finding as to the community.

William H. Rehnquist:

But he doesn’t have to.

All he has to do is take that definition — this is excluded from Indian country and he says, nonetheless, this took place in Indian country.

He negates the application of the exception.

Charles E. Hamilton:

Well, I don’t believe he does sir.

I believe that he also asked to make a specific finding as to the concept of the Indian community because of the physical location of this establishment.

William O. Douglas:

You don’t think that was implied there despite the proof of number of families, the number of Indians in a certain square mile area, the fact that the bar was out there by itself.

Charles E. Hamilton:

Your Honor, the proof was as to the number of Indian children enrolled.

Now, were these in the school?

Were these enrolled Indian children?

They didn’t know.

Is enrolling in the tribes the criteria?

No one knows.

William O. Douglas:

Well, certainly, the presence of Indian families, to the extent of what — 244 out 260 or something like this is must some tough criterion.

Charles E. Hamilton:

Well, Your Honor, we don’t know what an Indian family is. Does that mean that each member of the family is an enrolled Indian in one of these two tribes?

I don’t know.

There are no guidelines.

There is no criterion as to what is an Indian and what is non-Indian.

William O. Douglas:

Well, you indicated a little while ago that eligible Indians were not permitted to be enrolled.

Charles E. Hamilton:

Often this happens.

Are those Indians or non-Indians so far as the statute is concerned?

We don’t know.

William O. Douglas:

Well, if Indian country in the 1153 Act is used in the same sense of Indian country, and see if the 1949 Act by definition does not include a non-Indian community.

Charles E. Hamilton:

That’s correct, Your Honor but what I’m saying is I don’t know how determine or what is not a non-Indian community because I don’t know what a non-Indian is.

Warren E. Burger:

If I understood you correctly, the District Court made no finding beyond what you had already stipulated to namely that you were in an Indian country.

Charles E. Hamilton:

That’s correct, Your Honor.

Warren E. Burger:

And that your position is he had to go beyond that and take the second leg of subsection (c) and make an explicit finding on that.

Charles E. Hamilton:

That’s right, Your Honor.

Warren E. Burger:

To do that, he’d have to define what is an Indian, wouldn’t he?

Charles E. Hamilton:

Yes, sir.

Warren E. Burger:

He would — hypothetically, would he have to say an Indian includes not only Indians enrolled in the two tribes, either one of the two tribes or any person having any degree of Indian blood and then count of how many there were?

Charles E. Hamilton:

Your Honor, I don’t know because here’s the thing, this probably, you know, this is the United States Supreme Court and you have to probably make rules for all of the Indian tribes here.

I think that this is a pretty important case and the thing about it is maybe, we would adopt in Wyoming what is the standing of the tribes in Wyoming.

Maybe in South Dakota, you would have the, whatever the standard sets up for membership in the tribes there.

All others being non-Indians.

I don’t know.

Byron R. White:

Can I ask you — let’s assume that — either assume that this was Indian country or not or that it was a non-Indian community or it wasn’t.

Byron R. White:

Let’s assume that a statute, however expressly made the Indian tribal liquor laws applicable to stores on this piece of land.

Now, I suppose the federal law would govern and unless it was unconstitutional, wouldn’t it?

Charles E. Hamilton:

No, sir.

I don’t believe the federal law governs —

Byron R. White:

I know but let’s assume that the very statute that says — assume that federal statute said the Indian tribal liquor law shall apply to the following described piece of property and described this piece of property precisely.

Charles E. Hamilton:

Alright.

Then of course, you have no problem because anybody can determine what the jurisdiction is.

Byron R. White:

But you have to follow whether the federal government has the power to do that.

Charles E. Hamilton:

That is true especially — especially when you have a federal statute which says what conveyed a property out in fee simple without reservation or restriction that then it goes to the states under the state jurisdiction.

And that what happens to the piece of land to my client sets off.

Warren E. Burger:

Under Wyoming jurisdiction, you’re saying?

Charles E. Hamilton:

Yes sir and it’s — and if you relate 34 Stat.

182 to Article XXI, Section 26, the Wyoming Constitution, the two dovetails just like that.

The minute that — the minute that patent is issued without reservation or restriction, then you are under the — then you are under the jurisdiction of State of Wyoming.

You enjoy all the benefits and rights of citizenship, you enjoy all of the benefits and rights of the Court system, the appellate system, the franchise system, everything.

You have everything guaranteed by the United States Constitution and Wyoming Constitution.

But if you’re on an Indian jurisdiction, you don’t.

Warren E. Burger:

Does this record show or could we spell out from this record in any way, how many of the people in the area where your establishment is located in this community are enrolled members of one of these tribes?

Or are none of them?

Charles E. Hamilton:

I have no idea, Your Honor.

You would have to go through the tribal rules at Fort Washakie.

It would be a monumental judge.

Warren E. Burger:

Well, your answer is that this record doesn’t show that.

Charles E. Hamilton:

No, sir.

It does not because these people are struggling over three million acres.

Warren E. Burger:

And your position is that it would be an essential part of the Government’s burden in this case to establish that fact.

Charles E. Hamilton:

Yes, sir.

William O. Douglas:

Well, is — is your client faced within any incorporated municipality of any kind?

Charles E. Hamilton:

No sir, there is only one incorporated municipality in within the exterior boundaries of the reservation and that is the City of Riverton.

William O. Douglas:

Which you promote —

Charles E. Hamilton:

There are other small communities out around but just —

William O. Douglas:

Are they incorporated?

Charles E. Hamilton:

No, sir.

William O. Douglas:

No, then I suppose in the statute, you argued that community could well mean neighborhood, whatever that is.

Potter Stewart:

Doesn’t — don’t findings of fact number 10 and number 11 in the District Court’s judgment indicate at least his understanding of the meaning of a non-Indian community particularly number 11.

It’s not an incorporated non-Indian community with recognized boundaries.

Charles E. Hamilton:

Well, Your Honor, that’s not what the statute says.

Potter Stewart:

Well, you know what the statute says —

Charles E. Hamilton:

Yes, sir.

That might be his interpretation but I don’t —

Potter Stewart:

— and you said the statute is too vague to understand but at least this — the District Court seemed to understand it in these terms.

Now with incorporated non-Indian community would recognize boundaries.

Finding of fact number 11 on page 34 of the Government’s brief.

Charles E. Hamilton:

Yes, sir.

Potter Stewart:

I’m sorry, of the (Voice Overlap) brief, the petition for writ of certiorari at this time.

Charles E. Hamilton:

But it’s my — but it’s my understanding at this time that on certain reservations, the Indians have been asked to incorporate their communities and they have refused suggesting that then, they would be removed from the jurisdiction of the United States and the —

Potter Stewart:

Well, you’re talking about Indians incorporating.

This is non-Indian community with recognized boundaries.

Charles E. Hamilton:

Well, Your Honor, it’s a difficult thing to do in that area.

People are —

Potter Stewart:

Riverton is incorporated, isn’t it?

Charles E. Hamilton:

Yes, sir.

It was — it was a land grant in 1906 and it was kind of like the — kind of like Oklahoma Land Rush.

Potter Stewart:

And a finding number 10, it’s two-and-half miles from the — from the reservation public school and we know from the evidence introduced that a vast majority of the students or the pupils of that school are Indians.

Charles E. Hamilton:

Well, they are Indian, Your Honor but I don’t know what.

Potter Stewart:

And you seem to (Voice Overlap).

Charles E. Hamilton:

I don’t know what an Indian means.

You see, that’s still the problem.

There wasn’t — there wasn’t any questions asked and I couldn’t find out how many of them were in fact enrolled Indians.

They didn’t know.

Potter Stewart:

Well, it doesn’t say — tribal members that say non-Indian community.

Charles E. Hamilton:

Yes sir, whatever that might be.

Potter Stewart:

Well, and you — there was video of evidenced introduced on this, wasn’t there.

That’s correctly summarized on page eight of the Government’s brief.

Charles E. Hamilton:

Which brief Your Honor, there has been —

Potter Stewart:

The Government’s brief.

Brief for the United States filed August 15th of this year.

This is the first three or four sentences.

You’re familiar with it, I’m sure, 212 families of which 170 and a half are Indian families, the remainder are non-Indian families.

Charles E. Hamilton:

Yes, Your Honor but the thing about it is Indian families is a questionable statement.

I don’t know what — what the criteria is to determine whether — what those people are.

I do know —

Potter Stewart:

Well, neither the statute — the statute doesn’t say anything about tribal members.

Charles E. Hamilton:

I know it doesn’t, Your Honor.

And it also doesn’t say what an Indian community is.

Or what an Indian.

Charles E. Hamilton:

Or what it not — what it is not.

Warren E. Burger:

Does your attack in this respect go to the defects of the statute that the statute is the statute under which no crime can be established?

Charles E. Hamilton:

Yes, Your Honor.

Warren E. Burger:

Apart from the proof.

Charles E. Hamilton:

Yes, Your Honor.

It’s a two-pronged attack.

In other words, I think the —

Warren E. Burger:

In the statute, you said, they haven’t made their proof but it isn’t a good statute.

Charles E. Hamilton:

I don’t think there’s any possible way they could make their proof under that statute, Your Honor.

I —

William O. Douglas:

Incidentally, I know this is going to finding 11 that Fort Washakie is not an incorporated non-Indian community with recognized boundaries.

Are there any incorporated non-Indian communities with recognized boundaries?

Charles E. Hamilton:

The only incorporated town within the exterior boundaries where the reservation is Riverton.

Now, whether it’s a non-Indian community or not, I have no idea or whether a part of it.

William O. Douglas:

Can you have it unincorporated non-Indian community?

Charles E. Hamilton:

I don’t know, Your Honor.

So far as that — so far as that statute is concerned, I have no idea.

But what I’m saying is that I think it is of a questionable area where, you know, people of intelligence can differ.

And if so, then it’s not a proper statute for criminal prosecution.

Byron R. White:

Well, you think — do you think the statute which might otherwise be vague or nearly vague can be — can have its law secured by construction of federal statute?

Charles E. Hamilton:

Well, Your Honor, if it can’t have its law secured by construction then it better be stricken down and replaced by the Congress.

Byron R. White:

That’s what the judgment of the Court of Appeals did, strike it down.

Charles E. Hamilton:

Yes sir.

Yes sir, they did.

Byron R. White:

Why shouldn’t have it construed it if they thought it was vague.

Charles E. Hamilton:

I think they felt that the evils here were not — did not justify that due to the fact that they felt that in spite of this statute that the Indians and the tribal councils had no jurisdiction over non-Indians.

Byron R. White:

I know they have other reason besides this —

Charles E. Hamilton:

You know, on deeded land with any exterior boundaries of the reservation.

Thurgood Marshall:

How about Riverton?

Riverton had a mayor?

Charles E. Hamilton:

A mayor?

Thurgood Marshall:

And council?

Charles E. Hamilton:

Yes, sir.

Thurgood Marshall:

How many Indians?

Or is it only the mayor who’s Indian?

Charles E. Hamilton:

No, sir.

We just got to know it last week and he’s not.

Thurgood Marshall:

Is anybody in the council an Indian?

Charles E. Hamilton:

At this time, no sir.

Thurgood Marshall:

And you don’t know whether or not that’s an Indian reservation?

Charles E. Hamilton:

I —

Thurgood Marshall:

You don’t know whether it’s non-Indian?

Charles E. Hamilton:

I would say, Your Honor that it’s not predominantly Indian people, no.

But there is a —

Thurgood Marshall:

You said, you couldn’t tell whether it was non-Indian or not but now you can.

Charles E. Hamilton:

No sir, I don’t know what the standard is.

Potter Stewart:

Well, more practically, are there bars in Riverton?

Charles E. Hamilton:

Yes sir, many.

Potter Stewart:

And do they get licenses from the Indian reservation, from the Indian tribe?

Charles E. Hamilton:

No sir, they get it from the state.

Potter Stewart:

And is there any of them who have been ever prosecuted for not getting it?

Charles E. Hamilton:

Not yet.

Not since the Tenth Circuit Court, this is the test case.

Potter Stewart:

This isn’t a test case for Riverton, is it?

Charles E. Hamilton:

It’s a test case for that reservation, Your Honor.

Potter Stewart:

In other words, it seems to from your answer —

Charles E. Hamilton:

Because there —

Potter Stewart:

It seems to have been clear to everybody up to now that Riverton is a non-Indian community.

Charles E. Hamilton:

That is assumed, yes sir.

If that was true then none of this (Inaudible) property too for 18 years?

No.

Charles E. Hamilton:

Yes, sir.

The issue never arose.

No, the law was (Voice Overlap) in 1971.

Charles E. Hamilton:

The City Ordinance 26 changed this in 1971.

William O. Douglas:

Mr. Hamilton, does the Wind River Canyons too was beautiful as it used to be years ago?

Charles E. Hamilton:

Yes, Your Honor but they straightened the road out, I’m happy — I’m happy to inform you.

So, it’s not quite as hazardous as it used to be.

Thank you.

Warren E. Burger:

We seem to have some problems here that your colleague, Mr. Statkus has used your time but that was perhaps partly attributable to Court.

We’ll give you — will five minutes help you out any?

Jerome F. Statkus:

Yes, Your Honor, I appreciate it very much.

Mr. Chief Justice and may it please the Court.

The State of Wyoming’s interest in this particular case on our — our inference’s amicus is first off that this is fee-patented land owned by a non-Indian and it’s our position that the State of Wyoming has so and exclusive jurisdiction over this liquor license.

Jerome F. Statkus:

Secondly that the State of Wyoming provides due process protections in the issuance of a liquor license, due process protection and the renewal of a liquor license, due process protection on the revocation or suspension of a liquor license.

Basically, our laws pertaining to the regulation of liquor in the State of Wyoming protect not only the licensee which in this case is the respondent but also the public.

And we would respectfully submit to the Court that Indians are certainly part of the public of the State of Wyoming.

They’re citizens of Wyoming and of the United States that we provide by statutory machinery a mechanism wherein the members of the reservation, both Arapahoe and Shoshone, can participate in the statutory procedures relating to the renewal or suspension of revocation of a liquor license.

We feel that on the disestablishment or relinquishment theory, we feel that the opinions of this Court in 1914 in Clairmont v. United States and also Dick v. United States, about the same time, are very important here.

We think that these two cases support the proposition that fee-patented lands owned by a non-Indian is not subject to federal control or Indian control.

Byron R. White:

So, you’d be making this argument, your argument, even if there were no subsection (c) of 1154?

Jerome F. Statkus:

Yes, Your Honor.

That the State of Wyoming has exclusive jurisdiction over this liquor license.

Byron R. White:

Right And that — and when you emphasized that your state gives due process protection to before denying or withdrawing a license so you — was your implication that the tribal people do not?

Jerome F. Statkus:

My implication as — it isn’t very clear.

The ordinance itself is arguable under section in revocation or suspension, it’s unclear to us whether or not, for instance, ten days notice has to be given in order to have a license revoked or suspended.

It’s also unclear just whether or not and I don’t think the record shows us or shows an absence of this, so that — in Wyoming, when we have hearings on liquor license subject to the Wyoming Administrative Procedure Act and there’s no indication in the — in ordinance number 26, that for instance, respondent Mazurie would be accorded due process protection.

Thurgood Marshall:

But in this case, he was given the hearing or full hearing?

Jerome F. Statkus:

He was after —

Thurgood Marshall:

Wasn’t he?

Jerome F. Statkus:

Well, sir, Your Honor, he had a license since 1969.

The property, the deeded land had been selling — business had been located since 1954 and what happened was his application to the tribes was for initial license, not a renewal and we think that is very inequitable.

The hearing given him —

Thurgood Marshall:

He was given a hearing?

Jerome F. Statkus:

He was given right to come into the — before the joint tribal council and the record show that he isn’t given the right to cross-examine witnesses the record as in Wyoming.

It doesn’t show that tribes have adopted any type of rules or regulations which comport with due process and protect the respondent.

Thurgood Marshall:

And you gave him a hand too, didn’t you?

Jerome F. Statkus:

I might clarify that.

That hearing was held before the county commissioners.

The county commissioners — this is a renewal, Your Honor.

They decided not to renew the license.

The case appealed pursuant to one of our statutes to District Court.

The District Court sent it back for the reason that the county commissioners have an adopted rules and regulations and so Mazurie is operating at the present.

The case is on limbo.

Thurgood Marshall:

Well, is this denial of hearing before had argued before at the lower court?

This is a criminal case, if I understand it.

Jerome F. Statkus:

Yes, sir.

It was a manner that —

Thurgood Marshall:

What you’re arguing, was it presented to the court below?

Jerome F. Statkus:

I don’t — I think it was presented but I don’t know how much —

Thurgood Marshall:

The truth is you weren’t there.

Jerome F. Statkus:

No, I wasn’t there, sir.

All I can read is from the record but my point is Your Honor that the State of Wyoming has an interest in the regulation of liquor and that we provide a due process procedure for the issuance of other application of license.

Thurgood Marshall:

Denied that under this statute?

Did Wyoming deny that under this statute?

Jerome F. Statkus:

The difference between the Wyoming —

Thurgood Marshall:

Has Wyoming denied that under the statute?

The answer is no.

Jerome F. Statkus:

Well, it’s our position that —

Thurgood Marshall:

Am I right?

Jerome F. Statkus:

Yes, Your Honor.

Thurgood Marshall:

Well, what are you complaining about?

Jerome F. Statkus:

It’s our position that the land in question is fee-patented and that the State of Wyoming had so an exclosure jurisdiction over that liquor license.

Warren E. Burger:

I take it your point to be that Wyoming doesn’t have to share the powers issue of liquor licenses with anyone including the United States of America.

Jerome F. Statkus:

Yes, sir.

Potter Stewart:

And that somebody that you deem worthy of a license should have — in your state should have a license?

Jerome F. Statkus:

Yes, sir.

Potter Stewart:

And should not be deprived of it by an Indian tribe?

Jerome F. Statkus:

Yes, sir.

Potter Stewart:

If he’s a non-Indian operating on his own fee-patented land?

Jerome F. Statkus:

Yes.

That’s our point.

I would like to say, that it’s been an honor for me today to present my — the State’s position on this case to this body.

Thank you very much.

Warren E. Burger:

Of course, it’s a very short time.

Jerome F. Statkus:

Thank you.

Warren E. Burger:

Thank you.

Mr. Sachse, you have a few minutes left, do you have anything further?

Harry R. Sachse:

Yes, I do.

I think I have eight minutes and I may need it with all the things that had been said in the last few minutes.

To start with, the position of the State of Wyoming is nothing less than that this Court should reverse Seymour versus Superintendent, Mattz versus Arnett and repeal 18 U.S.C. 1151 and should have find fact contrary to finding of fact of the District Court.

It’s clear and it was stipulated in this case that first, it’s clear that federal law does apply to non-Indian owned land inside the boundaries of an Indian reservation.

Now, to get to Mr. Hamilton’s argument, I have to say this.

When I first started practicing law, it was in Baton Rouge, Louisiana and one of the first cases that I had was a — I was defending against the motion for summary judgment.

And somebody told me that the best defense against the motion for summary judgment is to totally confuse the Court and they then will think the problem is so complicated that they can’t grant the summary judgment.

And I think Mr. Hamilton has made a good run at that in this case.

We have —

Warren E. Burger:

You have about ten minutes now, to clear that up.[Laughter]

Harry R. Sachse:

I think.

I think I can do it because that was exactly what the trial in the District Court was about.

And what Mr. Hamilton is trying to do is to establish here in 20 minutes what he was unable to establish in a day or two in the District Court.

Because the finding of the District Court.

Now, remember it was stipulated that these acts occurred within the Indian reservation on fee-patented land.

Everything was stipulated except the question about the non-Indian community and when the —

If it was a non-Indian community, it was an Indian community.

Harry R. Sachse:

If it was a non-Indian community, it was an exception under — it was not Indian country as defined by 18 U.S.C. 1154 and the Court held in finding number 21 that the defendants in dispensing intoxicants from the Blue Bull absent license from the tribe violated Section 1154 but it didn’t it violated Section 1151 which is the broad definition of Indian country but 1154 which has the exception in it about non-Indian communities and I want to make another point straight.

I —

William O. Douglas:

His only finding as I recall was that it was not an incorporated.

Harry R. Sachse:

His only specific finding as to the community was that — was that in his first list of findings was that Fort Washakie was not an incorporated non-Indian community.

But then his final finding is that the defendant violated 18 U.S.C. 1154.

But I want to make a point about burden of proof —

William O. Douglas:

That might have been on the premise that he assumed that to be a non-Indian community, it had to be incorporated.

Harry R. Sachse:

That it might have been if you hadn’t — if you haven’t read the testimony that was before the District Court but before — the District Court had solid testimony before and by the way, the question about who is enrolled and who is not enrolled was fully brought out in the District Court.

And then the testimony as to the school children, it was testified that they were enrolled members of the tribe and the testimony as to the Indian population, it was discussed, who was enrolled, who wasn’t enrolled and the figures stand up one way or the other.

Harry R. Sachse:

But the point that I’m trying to make here is that the District Court only had one thing to decide and that was whether this occurred in a non-Indian community.

And there was simply no evidence that however you wanted to stretch the idea of non-Indian community that this occurred in a non-Indian community.

And because of that, the Court held that 1154 was satisfied.

But the point he’s making a minute ago was that we don’t urge a burden of proof on the defendant here.

There was solid testimony, solid evidence in the finding in this case that this did not occur in a non-Indian community and a lot of the confusion in the District Court was Mr. Hamilton’s continued attempt there as finally got around into doing here.

To try to say that the Government had to prove that it occurred in an incorporated Indian community but that’s not what the statute says.

William O. Douglas:

But you say that — all of you have to prove was that it happened in Indian country.

Harry R. Sachse:

That’s right.

And Indian country is every —

William O. Douglas:

And finding 17 is, this Court holds that are those said defendants operated Blue Bull on land deeded fee such land is an Indian country and therefore subject to federal law and you say that’s a finding which excludes non-Indian country namely non-Indian community.

Harry R. Sachse:

That’s right and that’s why this is as to 1154 which defines the Indian country with that exception in it and not as to 1151 and when you read —

William O. Douglas:

So, it’s really finding 17 rather than 21, isn’t it?

Or at least the two together, is it?

Byron R. White:

What that really means to also —

Harry R. Sachse:

Well, I think 21 makes it clearer.

Byron R. White:

I don’t know what the District Court’s standard was in judging Indian community.

Harry R. Sachse:

We know that the District Court —

Byron R. White:

Even if you look at 11, you wouldn’t know or understand as well. Even if you look at it all, you don’t know what it is.

Harry R. Sachse:

I think what we know is that under broad or a narrow standard.

This was not an Indian community.

And that under —

Potter Stewart:

It’s not a non-Indian community.

Harry R. Sachse:

Excuse me, not a non-Indian community and the question was whether it was a non-Indian community and applying the National Dairy approach to this — to this case, this statute is clear enough and I think in operation, it has been clear enough that this statute has been there since 1949.

There’s been no attempt to enforce it in say Riverton.

How many convictions have there been under it, do you know?

Harry R. Sachse:

I don’t know.

Is there anything in the code, any annotation?

Well —

Harry R. Sachse:

I don’t know.

I don’t recall.

Warren E. Burger:

When do you say this respondent first required a license?

Harry R. Sachse:

He required a license — well, he first required a license after the tribe passed an ordinance in the tribal license in 1953 providing for tribal license.

Warren E. Burger:

Did he get one?

Harry R. Sachse:

He couldn’t — no, he was denied a tribal license.

Warren E. Burger:

Was he operating for the meantime?

Harry R. Sachse:

He — when he was denied a tribal license, he closed down for a while, he then went to his lawyer and he then decided to open up and contest it.

That was in the 70’s, 1971.

Harry R. Sachse:

Sir, excuse me, did I say 50?

Yes, you did.

Harry R. Sachse:

I’m sorry, I mean 19 — 1973.

He first was able to open his bar in the first place not because of a tribal license but because with tribal blanket authorization.

Right.

And that was back in 19 —

Harry R. Sachse:

That was back in 1953.

Does the Court have any —

Warren E. Burger:

I think none.

Harry R. Sachse:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.