United States v. Wheeler – Oral Argument – January 11, 1978

Media for United States v. Wheeler

Audio Transcription for Opinion Announcement – March 22, 1978 in United States v. Wheeler

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Warren E. Burger:

We will hear argument next in number 1629 United States against Wheeler.

Mr. Urbanczyk you may proceed whenever you are ready.

Stephen L. Urbanczyk:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to United States Court of Appeals for the Ninth Circuit.

The issue presented is whether the Double Jeopardy Clause of the Fifth Amendment was federal prosecution of an Indian defendant under the Major Crimes Act because of his prior conviction in Tribal Court of lesser included offenses arising out of the same conduct.

United States submits that the Double Jeopardy Clause does not bar such a federal prosecution.

Facts of the case are not in dispute.

An incident involving a young Indian woman occurred on Navajo Indian Reservation on October 16, 1974.

Respondent was immediately taken into custody by an Indian policeman and two days later he pleaded guilty in Indian Tribal Court to two minor offenses proscribed by the Navajo Tribal Court.

The Navajo Tribal Court sentenced respondent to 60 days in jail or to pay a fine of $150.

Thereafter a Federal Grand jury returned an indictment which alleged or which charged that during the event of October 16, 1974 respondent had in fact assaulted the young Indian woman with an intent to rape her.

Now that indictment was dismissed on grounds that are not relevant here and a subsequent indictment was entered for carnal knowledge of female Indian under the age of 16.

Now that indictment was dismissed by the District Court on the ground “that the defendant had already once been placed in jeopardy for the same offense.”

That is that the federal offense of carnal knowledge was dismissed because of respondent’s prosecution and conviction in the Tribal Court of the minor offenses under Tribal Law.

The Court of Appeals affirmed.

The principal component of its decision and the principal issue before the Court today is that the dual sovereignty principle which has applied in the federal or state context to allow prosecutions by each governmental authority for the same offense does not apply in a Tribal context.

I should point out that there are two other components of the court’s reasoning that was essential to decision in that case: One was that the Navajo offense of contributing to delinquency of a minor was a lesser included offense of the federal offense of carnal knowledge; and the second is that the Double Jeopardy Clause inevitably bars the same sovereign from prosecuting a person for a greater offense after a previous conviction for a lesser offense.

We have not challenged the first of those components; we have not raised any question as to the relationship of the specific tribal crime and a federal crime that is at issue in this case.

We have, however, as an alternative submission, suggested that there should be an exception in this case in the circumstances of this case to the general rule that would bar the subsequent prosecution.

But the main submission of the Government today and the issue that I would like to discuss primarily in my argument is that the Double Jeopardy Clause is wholly inapplicable in the federal tribal context as it is wholly inapplicable in the federal state context.

Court of Appeals rested its contrary holding on the preposition that tribes did not have the sovereign status of states.

The Court recognized that although Indian tribes, who were separate people that had powers of internal self government, that the tribes were not states because the Federal Government has plenary control over the tribes.

These same kinds of themes appear in respondent’s brief.

Our disagreement with the Court of Appeals analysis does not with the premises but with the conclusion that it reached.

We agree that tribes do not have the sovereign status of state precisely because the Federal Government has plenary control over the tribes, whereas the Federal Government’s control over states although supreme within certain defined limits is not plenary.

But we submit that — but we disagree with the respondent’s and the Court of Appeals’ conclusion from that, that it follows that Tribal Courts are merely arms of the federal sovereign and therefore that the dual sovereignty principle cannot apply.

That conclusion rest on a gross over simplification of the status of tribes in this country and also on an unjustifiably narrow reading of the dual sovereignty principle.

To state it generally at the outset, it is our position that the Court can imply the dual sovereignty principle in this context, without embracing a concept of tribal sovereignty that gives the tribes and measure of independence against the Federal Government or that elevates tribes to the status of states.

Tribes are not independent from the Federal Government, and there is only two sovereigns in this country, in this true sense of that term, that is the United States and the states.

As I will explain, however, the concept of Residual sovereignty is historically and analytically a correct way to understand the powers, the retained powers of the tribes.

Stephen L. Urbanczyk:

And on the basis of this concept, together with the undesirable consequence that would follow with the Court of Appeals’ holding were affirmed in this case.

We contend that the doctrinal and the policy justifications that underly the dual sovereignty principle, apply in a tribal context even though the tribes are not states.

Thurgood Marshall:

Can I ask you one question.

Who pays for the Tribal Courts?

Stephen L. Urbanczyk:

Who pays for the Tribal Courts?

Thurgood Marshall:

Yeah.

Stephen L. Urbanczyk:

The Tribal Courts, Tribal Judges are paid by the tribe, tribal courts, the buildings —

Thurgood Marshall:

You are sure they are not paid by the Federal Government.

Stephen L. Urbanczyk:

No, they are paid in the — this is not in the record, but the Navajo Tribal Court, their judges are paid by the Tribe.

Now I should point out, and this is also not in the record that the tribe receives from the BIA appropriations —

Thurgood Marshall:

Yeah, that is what I thought.

Stephen L. Urbanczyk:

— which go towards the payment of judicial salaries and the clerk salaries.

Thurgood Marshall:

And that is not broken down, so it would not have plenty of —

Stephen L. Urbanczyk:

Well, the point I want to make with that is there are, as I understand it, no conditions imposed on payment of these appropriations for judges.

When you are dealing with the kind of Tribal Court which we described in the brief called CFR courts, the Courts of Indian Offenses; those are the qualifications and the involvement of the Secretary of the Interior or the Commissioner of the Indian Affairs with regard to the appointment of those judges and the payment of those judges is set forth in the regulation at 25 CFR 11.3, I think.

But the point is that the Navajo Tribal Court is not a court of Indian offenses.

Let me then briefly describe the considerations underlying the dual sovereignty principle and explain how they apply in this case.

The key cases, of course, are Abbate and Lanza.

Those two cases set forth both a doctrinal explanation for the Dual Sovereignty principle and a policy justification which explains that principle.

Now the doctrinal explanation for the Dual Sovereignty principle is simple and unremarkable.

It is that the Fifth Amendment” applies to only proceedings by the Federal Government” and that is what is prohibited by the Double Jeopardy clause of the Fifth Amendment is two prosecutions by the Federal Government for the same offense.

That is why in Lanza and Abbate the Double Jeopardy was held not to apply, there was only one prosecution by the Federal Government the other one was by the state whose courts do not derive their authority and their jurisdiction from the Federal Government.

Mr. Urbanczyk, would it impair your argument in any way if we were to decide in this Squamish case, a case that was argued earlier this week that the Indian Tribal right to prosecute is dependent upon an affirmative grant from Congress.

Stephen L. Urbanczyk:

I think that would about finish the principal submission of the government here, that the dual sovereignty principle applies precisely because that is not the case, because the tribal power is a retained power which has survived conquest and which the Federal Government continues to recognize.

Well, you do not suggest, do you that cannot find statutory authority in any act or in any treaty that gives a tribe an incremental jurisdiction?

Stephen L. Urbanczyk:

I would suggest that respondents cannot point to any statute —

Let us assume you could, let us assume you could find either exposed or implied in some federal statute, tribal power prosecute for some kinds of crimes.

Stephen L. Urbanczyk:

If you found express or implied an affirmative grant from the Federal Government of authority, a vesting of the judicial power of the United States in tribal courts.

Warren E. Burger:

You mean the power which the Tribe did not possess before.

Stephen L. Urbanczyk:

Well of course I did not say that —

Warren E. Burger:

But I just said in a few.

Stephen L. Urbanczyk:

No, I suppose that even if you conceived that the tribes had this power but you find that the Federal Government terminated its power, abrogated tribes as they may well have done at the time that they subdued them and then reestablished a form of tribal government as a creation of federal law, then I suppose we have a tough time with our primary argument here.

And not only and expressly in a statute that the tribes did have certain kinds of criminal jurisdiction.

Stephen L. Urbanczyk:

Now, well saying that they have certain kinds of criminal jurisdiction may simply be a description of the kind of criminal jurisdiction that the Federal Government has left to the tribes to handle on their own on the basis of their retained powers.

Nonetheless it is a federal statute it says that.

Stephen L. Urbanczyk:

Well, I think there is a difference —

Express or implied and he says the tribes may do so and so but they may do not something else.

Stephen L. Urbanczyk:

I think Waller versus Florida may provide a contrast to the kind of statute which you may have in mind Mr. Justice White, the kind of statute which I would concede with (Inaudible) here.

The Florida constitution as part of the sovereign exercise of sovereignty by the state, establish municipalities and vested and it was quoted in Waller v. Florida vested the judicial power of the state of Florida, and among other things, municipal courts.

It is our point here and I think this is really consistent with the entire course of judicial decision of this area, is that tribal courts are not creations of the Federal Government in that sense, and so I would submit to you that there does not exist a federal statute which creates the tribal courts or gives them jurisdiction.

Although there may well be statutes and treaties which recognize the tribes have this power.

Warren E. Burger:

The Navajo tribe was existent for more than 200 years, hasn’t it?

Stephen L. Urbanczyk:

Well, that’s correct.

Warren E. Burger:

And that 200 years ago it was totally sovereign, was it not?

Stephen L. Urbanczyk:

That’s correct; it was in every sense a sovereign nation.

Warren E. Burger:

Presumably had some method of dealing with violators of there court.

Stephen L. Urbanczyk:

That is correct, again, this is not on the record but I understand that there was rudimentary institutions of justice, I think they were called family courts, I think crimes of violence were not well known to the Navajos, till the introduction of alcohol by non-Indians, I do not think that was much of a problem and so they had informal institutions of justice.

That is correct.

That is as part of there own tribal self government.

Stephen L. Urbanczyk:

That is correct.

Mr. Wheeler is a member of the tribe, there is no question on that.

Stephen L. Urbanczyk:

No question about that, I should point out there is no question here that we are dealing with a crime committed by an Indian against an Indian in Indian country.

Although, as the tribal court clearly had jurisdiction.

Stephen L. Urbanczyk:

No question and whatever the court decide about the scope of tribal jurisdiction I think it has been recognized by this court and by the Federal Government consistently that with the exception of the Major Crimes Act tribal jurisdiction over those offenses is exclusive.

The point I am trying to make Mr. Justice White is —

We are not involved here with public law 280.

Stephen L. Urbanczyk:

No, Arizona is not a public law 280 state, it may be only in the sense of the sovereign jurisdiction over some environmental aspects of reservations but not in a way that affects this case at all.

Respondent simply is incorrect when he says “that Navajo tribe exist in functions only because it was created by the United States as an instrument of Congressional policy” The Navajo tribe exists and functions not by virtue of enabling federal legislation but because in a treaty the Federal Government can recognize its continued existence and the fact that it retained certain powers of its original tribal government.

Now, I think that as I said this is established by the course of judicial decisions and I would think that the courts from Kagama to Mazurie have talked about the powers that the tribe has, as attributes of sovereignty.

I think this point is no better illustrated for our purposes anyway in Talton versus Mayes which I would submit to you as perhaps a dispositive impact on this case.

Stephen L. Urbanczyk:

In holding there that the Fifth Amendment did not apply to Cherokee tribal proceeding.

The court rested on two propositions, one was that — first that tribal powers of self government are created by, nor do they spring from the Federal Government, and second that the existence of the Federal Governments plenary authority over the tribes does not render tribal powers or does not make them into federal powers.

John Paul Stevens:

Mr. Urbanczyk, may I interrupt you for just a second.

Under your submission could the crime retry Wheeler for the same advance under Tribal law?

It could have before 1968 –.

Stephen L. Urbanczyk:

Well 1968 Mr. Justice Stevens that is right.

The Fifth Amendment or the Bill of Rights, the individual liberties given to them, did not act upon tribal courts because tribal courts were not created by the constitution.

The power to establish tribal courts existed prior to the constitution and that is the essential holding of Talton versus Mayes.

A holding which has not been overruled and which is not been I think cast into any serious doubt by subsequent legislative or judicial proceedings.

Thurgood Marshall:

And Congress could not abolish the tribal court.

Stephen L. Urbanczyk:

The congress could abolish the tribal courts tomorrow–.

Thurgood Marshall:

I thought that it was started with treaties.

Stephen L. Urbanczyk:

I think that it has been established by statute and by convention that Congress can by statute it can by statute abrogate treaties, I am not certain.

Thurgood Marshall:

It is a trouble now.

I mean you can abolish the sovereign school.

Stephen L. Urbanczyk:

As I suggested Mr. Justice Marshall the outset.

We think that the Federal Government Authority over Indians is plenary and that includes abolition.

Warren E. Burger:

That is why you used the term residual sovereignty.

Stephen L. Urbanczyk:

That is correct.

The powers that the Indian tribes exercise today are powers which they have retained because the Federal Government recognized.

Thurgood Marshall:

With the permission of Congress.

Stephen L. Urbanczyk:

Well with the permission is perhaps a correct way of thinking.

If we are right that I should point out that one of the thing that respondents suggest is undermined that subsequent legislation and the Indian Civil Rights Act and I think it was a undermining thought and the Indian Civil Rights Act is based on the premise of thought and is good law and that without some sort of affirmative congressional enactment.

The tribal courts which are not creation of the constitution are not (Inaudible) formed by the constitution and so Congress imposed these many of the civil liberties in the First Ten Amendments upon tribal courts.

Now if we are right that the Talton is valid.

I think it establishes that not withstanding Federal Authority, Plenary Federal Authority, the proceedings of Navajo Tribal Code against responded in this case was not a prosecution under the authority of the Federal Government and if you do not agree with that proposition, I would submit that you would have to overrule Talton versus Mayes.

On the other hand if you do agree with that preposition, I think it follows under the doctrinal justification for the dual sovereignty principle that the tribal prosecution was not a Federal prosecution and should not be construed as bar in federal prosecution that we we are talking about in this case today.

Well that brings me to the policy justifications which animate the dual sovereignty principle, which I think have their most concise statement in Mr. Justice Brennan’s opinion for the court in Abbate.

Without such a principle, without the dual sovereignty principle the court said there.

There inevitably would be a conflict between two independent governmental authorities, each lawfully asserting jurisdiction over the same subject matter that sometimes the assertion of jurisdiction by one forwarding the interest and prosecutorial interest of the other.

Stephen L. Urbanczyk:

The predicted result of such a conflict is that one governmental authority would be made to relinquish its jurisdiction in favor of the other and when the federal state conflict, it was assumed that in such a conflict, and the resolution of such a conflict might call for the state to give way.

That is if the Congress could display state power to prosecute crimes based on acts which might also violate Federal Law but the court rejected that as a desirable solution to the problem, called it an undesirable consequence and I think basically that was the motivating factor for the reaffirmation of the dual sovereignty principle in this consent.

The consequences of not having a dual sovereignty principle, I think would be a substantial reallocation of the responsibilities for criminal law enforcement between the Federal Government and the State Governments.

Now, these same considerations I submit apply in much the same way in the tribal context.

We have two governments lawfully asserting criminal jurisdiction in Indian Country.

In the case of a crime against an Indian committed by an Indian as such as we have here.

Tribal jurisdiction normally is exclusive with the exception of the major Crimes Act as to those the Federal Government has asserted jurisdiction and generally the tribes do not assert jurisdiction but Navajo tribal court for example, does not assert jurisdiction over offenses similar to those in the Major Crimes Act.

Generally, relatively more minor crimes proscribed in a Navajo Tribal Court.

So we have two governments, each asserting substantially different jurisdictions in the same country.

Both governments are seeking to pursue separate interests.

The tribe to project the peace and dignity of their tribe and tribal members against relatively minor offenses which otherwise probably would not be and I guess under existing structures could not be prosecuted by anyone else and then we have the Federal Government whose asserted jurisdiction over major crimes which threaten the peace and dignity not only of the tribe but of the nation and the country as a whole.

The Major Crimes Act, I think is an expression of Congress’s intention or of its view that it prosecution of these major offenses.

Or is it not the area of concurrent jurisdiction As between the major crimes and the tribal crimes?

Stephen L. Urbanczyk:

Concurrent jurisdiction over the exact same offense.

Well , of course the trial has jurisdiction only over tribal code offenses and the Federal Courts would not assert jurisdiction over tribal code offenses.

But I would think that when you have an Indian defendant committing a crime against a non-Indian, so then instead of prosecuting under 1153, the Major Crimes Act, we were prosecuting under 18 U.S.C. 1152 that there might well be offenses which are brought into (Inaudible) on the tribes by federal enclave which are similar to tribal offenses.

I can not give you a specific example but I could safely speculate that there may will be such a case.

Does the Indian Civil Rights Act protect against Double Jeopardy?

Stephen L. Urbanczyk:

The Indian Civil Rights Act — yes, the Indian Civil Rights Act has a Double Jeopardy provision which pertains I believe to a tribal prosecutions.

William H. Rehnquist:

If these prosecutions had occurred in inverse order from the order in which they did occur, would the responded had been entitled to relief under the Indian Civil Rights Act.

Stephen L. Urbanczyk:

I think not Mr. Justice Rehnquist.

In short, the existing arrangement on a Navajo reservation consists of two governments, each asserting jurisdiction over the same subject matter, same category.

Yet each pursuing different though overlapping interests.

Now, if the Court of Appeals is correct I think in holding that the dual sovereignty principle does not apply.

I think we can anticipate or at least there is the potential for a serious conflict between these governmental interests.

Warren E. Burger:

We will resume there at 1 o’ clock.

Mr. O’Toole you may proceed whenever you are ready.

Thomas W. O’Toole:

Thank you Your Honor.

Mr. Chief Justice, may it please the court.

The respondent Wheeler submits that the Court of Appeals was correct when it held that successive prosecutions in tribal and federal court are barred at the Double Jeopardy Clause.

Thomas W. O’Toole:

The decision is correct for two basic reasons.

The Double Jeopardy Clause, dual sovereignty exception has never been applied outside of the Federal and state arena and secondly Indian tribes are in no way sovereign like state so as to allow the application of this exception to the successive tribal and federal prosecutions.

Additionally, the petitioners claims that the facts of the respondents case call for the application of other already recognized exceptions, the Double Jeopardy Clause must fail for the simple reason that the facts of this case do not support the application of any of these exceptions.

Before going any further, key facts must be noted.

These facts fully support the decision of the Court of Appeals and respondents claim that tribes are in fact arms of the federal sovereign.

From the arrest of the respondent Wheeler through his prosecution in the District Court, seven months later, the Bureau of Indian Affairs which is a Federal agency was in direct control of the investigation.

Before the respondent was charged with the lesser included effect of contributing to the delinquency of the minor, the Bureau of Indian Affairs had already investigated the possible violation of Major Crimes Act offenses.

In fact, the pervasive federal influence to control over all of the aspects of the tribal right is strikingly evidenced by the fact that the crime seen was in the compound of high school run by a Federal Agency, the Bureau of Indian Affairs.

Warren E. Burger:

Would that have much to do with jurisdiction?

Thomas W. O’Toole:

Well, Your honor, this is merely an example of the pervasive control of the Federal Government over all aspects of tribal life.

Warren E. Burger:

I agree, it is historically true that there has been pervasive control in many many respects but it does not really go to the heart of jurisdiction, does it?

Thomas W. O’Toole:

Well, I submit Your Honor, that the key to this case is whether Indian tribes are sovereign like states in the Federal Government and the very —

Warren E. Burger:

They are not sovereign or like the Federal Government or like states.

Thomas W. O’Toole:

Well, as this court has long recognized the dual sovereignty exception, never has been applied out of a context of successive state and federal prosecutions.

In fact it has not been extended to the territory of United States which this court has recognized very recently as being exercising powers of self government, similar to Indian tribes, and in fact exercising these powers with independence much greater than the Indian tribes.

Warren E. Burger:

It does not have any residual sovereignty, does it?

The territory has no residual sovereignty.

Thomas W. O’Toole:

That is correct, it emanates.

Warren E. Burger:

Sovereignty in the first place.

Thomas W. O’Toole:

That is correct, it emanates from a grant of power from the constitution.

In what case did we recognize the territories had powers just like Indian tribes, if that way jurisdiction —

Thomas W. O’Toole:

Well, I do not think the language of any of the cases of this Court has said that but the language of this court in Puerto Rico versus the Shell Company in which it describes the local powers of self government of the Puerto Rico, as well as a more recent language in the Forrest v. Otero (ph) case reflects both of the territorial courts have substantial powers of local government.

In fact, I think the Court characterized the territory of Puerto Rico as state like, yet the doctrine of dual sovereignty has not been extended to the federal territories.

But no one denies that the territories and their courts are creatures of federal statute Do they?

Thomas W. O’Toole:

No, I do not contend that they are not.

And I take it that there is some difference of opinion with respect to whether Indian tribal sovereignty in all its aspects is a creature of federal statute.

Thomas W. O’Toole:

Well, obviously the contention of the petitioner in this case is that they have residual sovereignty which preexisted any recognition by this government.

However, I think that misses the point, the point is are they sovereign like states so as to exercise powers of sovereignty, independent in any recognition by the Federal Government and in fact, I dispute the very contention, the petitioner makes that the tribes did have a residual sovereignty unless they were first recognized and allowed to exist by an applicable –.

Is there a specific federal statute that you can point to that authorized the whole nation to adopt its tribal code?

Thomas W. O’Toole:

Your Honor, I can not point to the specific statute but it is clear that this was the case and I believe the case of Courier or I believe — the Dodge versus Nakai case which I cited in my brief recognizes that the tribal code was an enacted and modeled after the Bureau of Indian Affairs modeled penal —

That was human accident.

Thomas W. O’Toole:

The tribal court Your Honor but —

(Inaudible)

Thomas W. O’Toole:

They were recognized by treaty of the Federal Government as existing.

Well, I know but that they just recognized the tribal, what authority did the tribe had to provide some criminal lawyer for Indians or anybody else?

Thomas W. O’Toole:

I submit Your Honor that the power was dealt — the power was delegated by the —

Where is that — that is what I would like to find out — where was it delegated–

Thomas W. O’Toole:

Well, Your Honor I can not point to the specific statute but I would submit that is contained in Title 25 and the general language of Title 25 giving the Secretary of Interior, the right to govern and manage all aspects of Indian life–

well, he did not issue these tribal codes —

Thomas W. O’Toole:

Under his authority Your Honor I believe they were issued and approved.

Well, they were just approved, they just could not become effective without his approval.

Thomas W. O’Toole:

That is correct and necessarily the Federal Government has as the government concedes complete plenary control over the tribal operations.

That is different, that is something else — and they need to exercise it but suppose they could displace any tribal code but they have not, have they?

Thomas W. O’Toole:

Well, various legislative enactments, Your Honor historically have terminated Indian tribes and that is reflected by the statutes.

I agree with you, that is fine but I would still like to know the source of the tribes authority to issue this code.

You denied that it was some aspect of any residuals sovereignty in the tribe –.

Thomas W. O’Toole:

Your Honor the only sovereignty the tribe I submit was the treaty which the tribe engaged in 1868 which this court characterized in McClanahan as less than an arm’s length agreement between the equal parties.

I think in fact historically and as I point out in my brief, the court has recognized it long ago over a century-and-a-half ago that the Indian tribes were subjected to session conquest and by the Federal Government and entered in to treaties and agreements to enable their survival and existence.

Warren E. Burger:

Your fact that this Indian tribe has distinguished from perhaps some others, but specifically this one, it is exercised in sovereign power over its own members.

Thomas W. O’Toole:

Well, I think that.

Warren E. Burger:

In criminal affairs which suggests that there is a residuals sovereignty there recognized by the United States.

Thomas W. O’Toole:

Well, Your Honor, although I do not certainly want over simplified, I think the use of the phrase sovereignty as this court recognized in McClanahan is confusing and that the appropriate method of determining powers of self government is by examination of applicable treaties, statutes and laws including the federal regulations.

As this Court characterized the Indian tribes in the recent case of Antelope and they characterized it as one sovereign necessarily that suggest to me that they are no longer sovereign.

Warren E. Burger:

Well, I should think that could the speak would be read as once totally sovereign other than formerly sovereign.

Thurgood Marshall:

Mr. O’Toole, you cannot have criminal lawyer without a sovereign, can you?

Thomas W. O’Toole:

That is my submission Your Honor, yes that is correct.

Thurgood Marshall:

Well, and have got to get around that the tribe — that the tribe has criminal law it is sovereign.

Thomas W. O’Toole:

Well, Your Honor.

Thurgood Marshall:

It is a sovereignty.

Thomas W. O’Toole:

It is the respondents submission that the criminal law was a exercise of the congressional plenary control over tribes allowing them criminal jurisdiction over certain areas.

You want to say allowing them sovereignty?

Thomas W. O’Toole:

No, I would not concede that.

Thurgood Marshall:

Well, it has been a criminal law.

Thomas W. O’Toole:

For our purposes of limited powers of self government Your Honor and I would analogize them to the powers of self government that the territory of the Puerto Rico has exercised which include local powers of prosecuting criminal matters.

Thurgood Marshall:

Well, I do not think you have Supreme Court of Navajo tribes.

Thomas W. O’Toole:

Pardon.

Thurgood Marshall:

You do not have the supreme court of the Navajo tribe, do you?

Thomas W. O’Toole:

Yes there is a supreme court of the Navajo tribe.

Thurgood Marshall:

And the lower courts too.

Thomas W. O’Toole:

Yes there is, it is very structured and perhaps the most up to date and complete judicial system of any tribe in the country.

Thurgood Marshall:

And still that is a not a sovereign tribe.

Thomas W. O’Toole:

That I submit is a correct preposition.

Thurgood Marshall:

Well, I do not think you are bringing — if you want to put a person in jail, you need the sovereignty.

Thomas W. O’Toole:

Well Your Honor, certainly local and state governments have the power to put people in jail but I think the course of the power is the key that this court has to examine to determine first of all whether they have even residual sovereignty, let alone sovereignty.

Thurgood Marshall:

My brother White has been trying to get you to say where it came from.

Thomas W. O’Toole:

Well.

Thurgood Marshall:

And you said it is there.

Thomas W. O’Toole:

Parden.

Thurgood Marshall:

You get to sovereignty for criminal purposes is there –.

Thomas W. O’Toole:

The power of self government Your Honor I think –.

Thurgood Marshall:

Well, the power– I am only talking about the power to put a man in jail.

Thomas W. O’Toole:

That is correct.

Thurgood Marshall:

Now where does the Navajo tribe get that power?

Thomas W. O’Toole:

Again as I indicated to you Mr. Justice White, I cannot specifically put my finger on the statute, although I believe it is in my brief, and if the court would like I can indicate the appropriate statute which in essence says that –.

Thurgood Marshall:

In essence.

Thomas W. O’Toole:

Well, without quoting it Your Honor indicates that the Department of the Interior to the Director of the Bureau of Indian Affairs has the power to control tribal courts, law and order, police, judges and so forth and necessarily I submit the regulations in 25 CFR which exist.

Thurgood Marshall:

You mean that the Federal Government sits on each one of these cases, the answer is no,.

Thomas W. O’Toole:

No, Your Honor they do not, the judges of the tribe sit on the cases over tribal matters but I submit that this sitting on cases is because this power has been granted to the tribes by the Federal Government, not because of any preexisting and unrecognized —

Thurgood Marshall:

Now, who tried them before 200 years ago?

Thomas W. O’Toole:

Well, Your Honor if they had tribes in the traditional American justice systems –.

Thurgood Marshall:

Well, who maintained justice in the Navajo tribe 200 years ago?

Thomas W. O’Toole:

The members of the tribe Your Honor.

Thurgood Marshall:

And who did it 100 years ago?

Thomas W. O’Toole:

In 1868 the treaty was passed and I would assume after the treaty the tribe continued to exercise –.

Thurgood Marshall:

That is true even till today.

Thomas W. O’Toole:

That is correct.

Thurgood Marshall:

So, it did not come from Congress.

Thomas W. O’Toole:

Well, Your Honor, I respectfully disagree — again without delivering the point, I submit that only by treaties, the tribes had these powers to exercise and I think it would be interesting if the court were to examine the Navajo treaty of 1868 which reflects that the tribes were not given title to their lands, that the tribes at the time when the treaty was entered into were cockeyed in and isolated and exiled people and that only because of the grants of independence, so to speak by the treaty where they are allowed to possess certain lands and the language of the treaty is very clear to show that they have no title to these lands and that there are subject to the control of agent of the Federal Government, from that treaty the tribe has continued to grow and expand and to become more sophisticated in their powers of self government but this has only been under the direct supervision of the Bureau of Indian Affairs and with the approval of the Secretary of the Interior.

Warren E. Burger:

Do you think it would not be correct to say that the tribe has all the sovereignty, that they originally had, except that which was taken away from them by writ of conquests by the whites?

Thomas W. O’Toole:

But Your Honor, for purposes of this case, I think that submission is academic because unless they have the attributes of sovereignty as examined, as derived from the constitution like states have.

I certainly do not think that any residual sovereignty is going to carry the date to allow a unprecedented extension of the dual sovereignty exception.

Well, I do not know why do you say that?

Because you have referred several times to the right of self government, I would have thought the right of self government which I took that you conceded would include the punishment by the tribe of one of its own members.

Thomas W. O’Toole:

Well.

William H. Rehnquist:

You concede that exists but you say it exists only under the auspices of the Federal Government?

Thomas W. O’Toole:

That is correct perhaps my choice of the word right is inappropriate but powers of self government which result a federal recognition.

Not to digress completely Your Honor, I think the language of the Indian Civil Rights Act which was subject to questioning by the court before the lunch recess has a very telling statement in it and I refer this court to Section 1301 of the Act.

Title 25 Section 1301, I do not have the specific language of this court Your Honor, but I think that its telling and I would like to quote it to the court.

It says that an Indian tribe and this is Congress speaking of course, means any tribe banned or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self government that the statute then proceeds to define powers of self government and Indian courts.

Certainly it seems reasonable to submit that this statute is essentially a restatement of the position of the respondent in this case, that recognition of the Federal Government or the Indian tribes is concomitant to their very existence.

Mr. O’Toole, may I ask you a question about the situation immediately before the 1968 statute was passed, I asked the same question to your opponent but I would like your views.

Was it permissible in 1967 for a tribe, a tribal member twice for the same offense?

Thomas W. O’Toole:

According to the only cases that are recorded on this Your Honor, I would have to answer no.

Well, then where does, how does, where did the constitutional right come from that you are asserting today?

If there was no constitutional right for that identity of offenses in 1967 when did the constitution change?

Thomas W. O’Toole:

Well, perhaps I misunderstood the question.

You are talking about successive prosecutions within the tribal court.

Yes, by the tribal court or the member of the tribe.

Thomas W. O’Toole:

I do not have an answer to that question Your Honor.

It seems to me, if you concede that there was no constitutional objection to that you have to be conceding that, that kind of prosecution was not for an offense against the United States

Thomas W. O’Toole:

Well, I do not think I have the —

If there was an offense against the United States in 1967, how could it be today?

Well, I cannot go so far as to make that contention Your Honor there is lot to my knowledge of any cases that deal with that issue.

What about Talton against Mayes?

Thomas W. O’Toole:

Well, Your Honor Talton v. Mayes I think has to be read very carefully in light of the basic premise of that case which the Court announced initially in the opinion that it wrote that the existence of the Cherokee tribe is based upon treaties and statutes and the tribe exists under the paramount authority of United States and from that point forward the Court examined these treaties and statutes to reach the conclusion that the Indian who was in the federal court on habeas corpus petition was not being denied any constitutionally guaranteed right, that is lack of being indicted by the grand jury in conformance with the federal grand jury law was merely as the court said an argument in inconvenience.

Yeah, but if he had been further prosecuted by the Federal Government or under its auspices, as you contend your client was here in the tribal court surely he would have had that right to be indicted by a grand jury.

Thomas W. O’Toole:

That is correct but at that point in time Your Honor, I think in 1896 the Fifth Amendment grand jury requirement applied only as a limit on the powers of the Federal Government.

Or did not the court expressly said thought that the offense there was not an offense against the United States?

Thomas W. O’Toole:

That is an interesting question Your Honor because.

I was saying that that is what the court said —

Thomas W. O’Toole:

That is correct.

But what if we accepted that statement.

Thomas W. O’Toole:

I think the statement is incorrect and I would like to explain why –.

But what if we accepted it — you are rather in here in big trouble are you not?

Thomas W. O’Toole:

Well, I agree that as the government has indicated in its argument, they turned this case on Talton and I respectfully submit that Talton was not good law, one point that is significant and I do not have the answer to it, I cannot find any authority to explain why prior to 1896, when Talton was decided the Federal Government had enacted the seven major crimes act as a result of the case of Crow Dog, and that seven major crimes act withdrew or took exclusive jurisdiction over the offense for which Talton was indicted by the tribal court.

Now, I have not been able to examine and read the treaty under which the Cherokees existed and so whether that treaty might be an exception under 18 U.S.C. 1152 but I submit that is the only possible reason that might be argued as supporting this major crimes act prosecution by the tribe.

The silence of the court on why the exclusive jurisdiction of the Federal Government did not attach to this murder prosecution is mysterious, I do not know the answer.

Mr. O’Toole, were you here on Monday to hear the argument in the Oliphant case?

Thomas W. O’Toole:

Yes I was Your Honor.

Do you feel that we must decide this case and that one the same way?

Thomas W. O’Toole:

No I do not.

I believe I make that statement in my brief, and I would like to explain.

In this case the government is asking the court to recognize tribes as being sovereign like states.

In Oliphant, the majority opinion in Oliphant recognized that tribes only have plenary powers and limited powers of self government and based their decision on the Residual sovereignty that the tribes retained absent any controlling or contrary Federal legislation.

So assuming for purposes of arguments that the tribe does have Residual sovereignty which allows the tribe to prosecute non-Indians, this certainly does not raise them to the level of being sovereign like states, so as to allow the Dual Sovereignty exception to be extended with the Indian tribes.

So necessarily, I do not see any grading consistency although I do disagree whether the suggestion that Oliphant is good law.

Well, the shoe can pinch the other way, can it too, because in this case you have an Indian tribe trying a member of the Tribe under the judicial self-government law and in all of them you have the Indian Tribe trying a non-Indian.

Now you have Residual sovereignty for one purpose but not another.

Thomas W. O’Toole:

Well, in addition to the arguments that I have been making, I would submit as I have attempted to do up at this point that the notion of Residual sovereignty is no longer valid and that any notion of sovereignty as this court recognized in McClanahan has been merely used, Worcester versus Georgia when Justice Marshall first stated it, only as a means of resolving state and tribal conflict and as the court stated in McClanahan and it has done in the cases since McClanahan, it has avoided reliance on what it categorizes as a platonic notion of not a means of resolving disputes and has instead looked applicable to treaties and statutes.

For example, in United States versus Mazurie which was mentioned in the arguments on Monday, this court examined the relationship of that particular tribe in the Federal Government and found that the tribe exercised powers of control over liquor on the reservation not because of any inherent sovereign but because of a delegation of that authority by the Federal Government.

Thomas W. O’Toole:

In United States versus Keeble, the Court was asked by the solicitor as it is being asked in this particular case to rely on a notion of inherent sovereignty to prevent an Indian member from asking the Court for a lesser included offense when it was clearly merit and the reason that the fact that the tribe had exclusive jurisdiction over that particular lesser included offense prevailed over that Indian member, a right to have a lesser included offense in the Federal Court instead of relying on that reasoning or even rejecting it, I believe the court merely looked at the applicable treaties and Federal Rules of Criminal Procedure.

And found that all of the Indians prosecuted in the Federal Court should be treated equally as any other defendant prosecutors in Federal Court and then recently in this Court’s opinion in Antelope, the court again as I indicated earlier said that the Indian tribes were once sovereign and that any attributes of sovereignty and powers of self government were the result of the exercise of this Congress’s and the Federal Government’s plenary authority in pertinence of the word guarding relationship that exists between the tribes and the Federal Government.

Warren E. Burger:

Cannot that be read as meaning such sovereignty as the Congress has allowed them to retain?

Thomas W. O’Toole:

Well again Your Honor semantically I do not think the words sovereignty for purposes of this case is an appropriate means of describing that particular relationship.

Warren E. Burger:

As Justice Marshall suggested they have enough sovereignty to substitute some of their people for some of their clients.

Thomas W. O’Toole:

Well that is not dispute Your Honor but I think for this court to recognize them as sovereign like the States were sovereign is unprecedented.

The very doctrine in which the Government wants to engraft upon successive Federal and tribal prosecutions has never been applied outside of the state and Federal arena and in fact as this Court recognized in the recent case of Reynoldi (ph), the Government itself pays very close attention to this court’s continuing concern and apparent distaste for successive trials and the injustice and unfairness that results from these trials —

Mr. O’Toole I may already have asked it but I have got this — kind of pre-occupied with one thought on it and I would like to put it on the table so you can discuss it fully and find out where I am wrong, seems to me that if prior to the 1968 Civil Rights Act, the Indian Civil Rights Act a Tribal member could have been tried twice by the tribe for the same violation of the Tribal code that necessarily that a violation of the Tribal court by tribal member was not an offense within the meaning of the Fifth Amendment and if that was true then I would think it is still true now.

What is wrong with that analysis?

The issue is really not of sovereignty but whether or not the violation by the member of the tribe of the Tribal court is an offense within the meaning of the Fifth Amendment.

I think if they could be tried twice in 1965 or which I guess they could because Congress had to pass this provision, it must have been on the assumption that it was not an offense.

Thomas W. O’Toole:

Well I think, Your Honor, the Indian Civil Rights Act renders that particular —

But that does not amend the constitution —

Thomas W. O’Toole:

Well I think it recognizes.

It recognizes that we needed such a statute to protect the Indian from that particular kind of abuse.

Thomas W. O’Toole:

Well nevertheless, I think this court is going to have to confront that particular aspect of the Indian Civil Rights Act that if it was to turn this case on the reasoning that you just —

Well, but that Act only talks about Indians in exercising their power of self government, now the second prosecution by the Federal Government is not covered by the Indian Civil Rights Act.

Thomas W. O’Toole:

Well Your Honor.

May be there is something wrong with it but that is the way the case seems there up to me right now.

Thomas W. O’Toole:

The government.

Is not my brother Steven’s right that the premise for the Civil Rights Act as if there really was not need to protect people subject to Tribal law?

Thomas W. O’Toole:

I think that might be —

The criminal proceedings before Tribal agencies were not proceedings within the meaning of the constitution.

Thomas W. O’Toole:

Well Your Honor as I indicated earlier I could find no cases that disposed off this problem, I think.

It is the one that would not know that you think that to be read really carefully —

Mayes.

Thomas W. O’Toole:

Talton versus Mayes.

That is correct and I think it is significant to point that the government concedes in their brief in Oliphant, their amicus brief in Oliphant, Footnote 19, they say in view of the Civil Rights Act enactment, that Talton versus Mayes is moot.

You mean unnecessary.

Thomas W. O’Toole:

Perhaps.

Thomas W. O’Toole:

They used the word moot Your Honor.

Mr. O’Toole did you tell us that the seven major crimes had been enacted at the time that Talton was indicted.

Thomas W. O’Toole:

As to my understand it was enacted in 1885.

And used in 1893.

Thomas W. O’Toole:

That is correct.

So then you have no explanation as to —

Thomas W. O’Toole:

I have no explanation except of the language of the Cherokee Treaty which I have been able to obtain, I think under 1152 treaty enactments may except the application of the Major Crimes Act.

I would like at this point Your Honor to discuss the other exceptions that the government urges as being applicable to this case, even if the court does not find that the dual sovereignty exception should prevail.

Initially the government would argue that a second prosecution is allowed when the facts necessary to the greater charge in this case either assault or a rape under the Major Crimes Act were not discovered despite the exercise of due diligence before the respondent was prosecuted in tribal court.

As I have already indicated earlier the BIA was on the scene and had all facts in hand prior to the Indian defendant going to Tribal court and pleading guilty and I submit that there a lack of due diligence was a fault of the government not that of the respondent.

Further indication, I think of the real problem it involves brought this case to this position that is at today is indicated by the fact that took seven months to even bring this case to a Federal indictment, and the fact that the Indian Reservation is far removed from the US Attorney’s office in Phoenix.

There is a constant problem of logistics and communication which is a various serious problem because of language barriers with Indians and these all add up to real problems which occasionally cause this type of a problem to arise where an Indian is convicted in the tribal court, prosecuted in the Federal Court without the government first becoming aware of the early prosecution.

I might also digress for a moment to point out that judge Donahue who wrote the majority opinion in Oliphant also authored the opinion in Colliflower versus Garland which recognized that for Double Jeopardy purposes at least Indian Tribal courts and the Federal District Court are arms of the same sovereign.

With that in mind is part of the reason that I can see a consistent decision of Oliphant and this case in favor of the Indians in both instances.

Warren E. Burger:

The time is up but we used a little of the — we will give you two more minutes if you have something.

Thomas W. O’Toole:

I would merely thank you, Your Honor I would merely conclude by saying that under the very facts of this case not the other exception that the petitioner urges as being applicable so as to allow a second prosecution applies.

I think what the government is trying to do in this case Your Honor and I commend them for their ingenuity is to ask this court to enact Congressional policy where the Congress has not acted at this moment.

I think would be if this Court was to allow the Dual Sovereignty exception to be applied to successive tribal and Federal prosecutions would necessarily raise the very serious question of whether the court’s pronounced in Waller and particular in Puerto Rico versus the Shell company prohibiting successive prosecution within the Federal territory — whether these cases are valid at the present time.

And one final note Your Honor, I submit that the case most fairly discusses and disposes of the various claims of the petitioners United States versus Kagama has made no indication by the government that, that case is overruled or that the language of that case is anything but dicta.

I submit that it is very controlling and that case itself recognizes that Indian Tribes have been subsumed into the territory of the United States and exist only because of the political will of Congress.

Thank you very much.

Warren E. Burger:

Mr. O’Toole if you lose this case what effect if any would have on the Navajo judicial structure in this operation, in your opinion.

Thomas W. O’Toole:

I think it will have — as far as the tribal structure itself the tribe will obviously lose its posture as being a self-governing independent entity and that way it necessarily will hurt the tribe and I think it is also significant to know that no amicus briefs are here today on behalf of the tribe as it were on Monday in the Oliphant case.

They are worried about losing this case.

I think that the affirmance of Wheeler decision improves tribal sovereignty and gives finality to the tribal court’s decision as well as Federal court decisions.

I have nothing further.

Warren E. Burger:

Mr. Urbanczyk do you have anything further?

Stephen L. Urbanczyk:

Just one or two very short points Mr. Chief Justice Thank you.

In answer to questions by Mr. Justice Rehnquist and Blackmun concerning the relationship of this case with Oliphant I want to make government’s position on that point clear.

This court could rule for Oliphant and still rule for the United States, I think that if the court rules for the Squamish, I think the government would have a very — I think you would have to have reaffirmed that you have in all other cases.

Stephen L. Urbanczyk:

Concept that whatever powers are retained by the tribes are retained as an attribute of their sovereignty and I think if you do that then you have gone a long way towards deciding this case in the favor of the government.

But if you rule for Oliphant I think there are several grounds for decision that are available to you and I think there is only one of those grounds that would hurt us substantially in this case and this is what I understood Mr. Justice Rehnquist’s question earlier.

That is a if you rule in Oliphant that there was no longer any notion of tribal sovereignty and that the tribes existed simply as a creation of the Federal Government and that was a general, then I think our principal submission in this case would be in trouble.

Because I think we would have a hard time arguing that these tribes were not creations of the Federal Government and that the prosecutions under them were not under the authority of the Federal Government.

But any other holding in favor of Oliphant in this case on the statutory ground I think would not effect of our position or would not be adverse to the government’s position of United States against Wheeler.

One of the point concerning a statement by the government in the amicus brief in Oliphant that Talton has been mooted.

That Footnote suggest simply that there is a open question at least it has been decided by this court, whether 1153 vest exclusive jurisdiction in the Federal Courts or whether or not the tribes would also have the current jurisdiction.

Two things about that first of all the Navajo Tribe, I want to make this clear does not assert jurisdictional over any major offense like those in the major Crimes Act.

But secondly I would suggest that the Indian Civil rights Act moots the question of whether or not there is concurrent jurisdiction with respect to major tribes in one sense and that is after the Indian Civil Rights Act which imposes substantial limitations on the power to sentence Indians are major offenses.

That effectively disables them from punishing major offenses and in that sense it moots that question.

But it certainly does not moot Talton versus Mayes and we submit Talton Versus Mayes is still good law today.

Does the Navajo court system assert jurisdiction over a, non Navajos or b, non Indians.

Stephen L. Urbanczyk:

It is my understanding based on the 1970 version of the Navajo tribal court that they do not assert criminal jurisdiction over non Indians.

They assert the right to exclude non members and non Indians from the reservation and they have a proceeding which is actually undertaken their executive branch of government to determine whether or not a person could be excluded.

He could be excluded for everything from a contagious disease to committing a crime.

I am not aware of the current status of the Navajo jurisdiction is however.

Thank you.

Mr. Urbanczyk before you sit down can you tell me if you are familiar with any cases discussing the question whether a violation of the tribal code by a tribal member is an offense within the meaning of the Fifth Amendment?

Stephen L. Urbanczyk:

No I am not aware of any cases that suggest that.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.