Washington v. Confederated Bands and Tribes of the Yakima Indian Nation – Oral Argument – October 02, 1978

Media for Washington v. Confederated Bands and Tribes of the Yakima Indian Nation

Audio Transcription for Opinion Announcement – January 16, 1979 in Washington v. Confederated Bands and Tribes of the Yakima Indian Nation

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Warren E. Burger:

The first case on for argument this morning is Number 77-388, Washington and others against the Confederated Bands and Tribes of the Yakima Indian Nation.

General Gorton, you may proceed whenever you’re ready.

Slade Gorton:

Mr. Chief Justice and may it please the Court.

The Yakima Reservation is an extensive tract of land in Central Washington of more than 2,000 square miles, almost the size of the State of Delaware.

Four-fifths of that land is held in trust or restricted status by the United States for the benefit of the Yakima Nation.

The other one-fifth has been removed from trust status and sold almost entirely to non-Indians.

Most of the fee land is located in the northeastern portion of the reservation; it is shown in gray on the map, which is exhibit 34 in the record.

The population of the reservation was stipulated in the pre-trial order in this case to be about 25,000 of which 3,000 were members of the tribe. Since the date of that pre-trial order, the members of both groups have increased.

Indians and non-Indians live together on most of the inhabited portions of the reservation but most of the non-Indians live on fee lands near the Yakima River.

The Indian population is scattered more evenly throughout the non-forested portions of the reservation.

Two small cities, Toppenish and Wapato, are located entirely inside the reservation borders.

Each of those cities has an Indian population of slightly less than 10% and each of them is located almost exclusively on fee land.

Do some non-Indians live on non-fee land?

Slade Gorton:

Yes.

Some of the non fee land has been — is in agricultural use and has been leased to non-Indians.

By the tribe or the federal (Voice Overlap) on behalf of the tribe.

Slade Gorton:

The tribe or the United States, yes.

In addition to city police officers in Toppenish and Wapato, the law enforcement system includes about 40 deputy sheriffs almost twice the number who run the force at the time of the trial.

A considerable tribal police force and the state patrol detachment with headquarters at Toppenish.

The under-sheriff of the county is a member of the Yakima Tribe.

Working relationships among those agencies are extremely close.

All deputy sheriffs and all state patrolmen are crossed deputized by the tribe.

All tribal police are crossed deputized by the sheriff with authority for arrests within the exterior boundaries of the reservation, and many of the officers of each carry federal commissions from the BIA as well.

That’s the bugaboo of checkerboarding and the use of tract books which is a constant refrain of the tribe and the Solicitor General is therefore just that, a bugaboo.

And several of the sheriff’s deputies testified almost any general law enforcement officer can make an arrest anywhere on the reservation for any criminal offense, whether the offense is to be tried by a tribal court, a state court, or a Federal District Court is decided later by lawyers.

But doesn’t it — doesn’t depend on what law is applicable, whether there has been a crime?

Slade Gorton:

Yes, it does.

Well, in the —

Slade Gorton:

Although the misdemeanor —

The arresting officer must know three sets of laws.

Slade Gorton:

The arresting officer in at least 99% of all cases is not going to need to know three sets of laws at all.

Generally speaking, wife beating or a traffic offense is going to be an offense against each of the two.

But he must —

Slade Gorton:

It would not be a violation of the federal —

But it does depend on what law is applicable, whether there has been a crime.

Slade Gorton:

It does depend on what law is applicable, whether there has been a crime.

Is there anything in the materials that have been submitted to us indicating what percentage of the kinds of conduct might be a criminal offense under one or more of these laws and not be under the other?

Slade Gorton:

I do not believe that there has been.

Obviously, by far the fewest offenses would be offenses of federal or criminal code offenses because those are only the major crimes.

The largest number of offenses would presumably be state offenses because its jurisdiction is the broadest.

But presumably, anything that’s —

Slade Gorton:

The tribal offenses of course are limited to minor crimes with the penalty of not more than six months in jail.

But anything that readily comes to mind such as assault and battery or stealing, or larceny, or —

Slade Gorton:

Would be a state violation but very likely (Voice Overlap) —

Well, it’s not, it would presumably be an offense under both state law and tribal law.

Slade Gorton:

And the tribal code, yes and so the deputy sheriff can arrest and if it is under the jurisdiction of the tribal code, if the lawyers will decide that that’s where the offender goes.

If it’s under the state code, the offender will go to a county jail and be tried on the County Superior Court or District Court.

Yakima County however thus has some difficulty in making arrests on much of the trust land because the portion of the reservation west of a line roughly like that is closed by tribal action to non-Indians.

Perhaps it goes without saying that this is not a racial discrimination case.

The trial court found no discrimination against Indians and the states program of law enforcement.

A judgment, which had based in part on the explicit testimony, is to the absence of such discrimination from the chief of the tribal police force himself.

The complaints of the Yakima’s about inadequate law enforcement protection are identical to those of non-Indians in Yakima and throughout the nation.

There is not enough of it.

Why is there never a police officer around when we really need one?

As the court is aware, we do not regard the order noting probable jurisdiction as encompassing the assertion of the tribe and the Solicitor General but Washington was required to amend it’s constitution in order to assume jurisdiction under Public Law 280.

Your Honor admits — omits that question of course for the very good reason that you made it in our favor on three occasions, in Makah, in Tonasket, and in Comenout.

Nevertheless, that disclaimer caused argument represents the principal submission of our opponents occupying some 60% of the 162 pages of argument in their three briefs.

Our reply brief for this reason demonstrates that your three decisions on the subject were correct.

Even before one reaches the argument however that the Enabling Act in our State Constitution still prohibit our assumption of jurisdiction, one must first decide just what lands are covered geographically by the disclaimer clause language, as well as what types of governmental power or jurisdiction the state was mandated to disclaim in 1889.

Harry A. Blackmun:

General Gorton, you’ve just referred to these dismissals.

Harry A. Blackmun:

In your brief on page 17, I read, “These dismissals constitute rulings on the merits which the Court should now reconsider.”

I think that’s a mis —

Slade Gorton:

We missed that.

We re-filed the correction changing the W to a T.

Harry A. Blackmun:

Well, I guess I didn’t get one, but it should be —

Slade Gorton:

Not.

Harry A. Blackmun:

I wanted to be sure.

Slade Gorton:

Under the Enabling Act Language in our State Constitution, Washington disclaims, and I quote, “All right and title to all lands owned or held by any Indian or Indian tribes and until the title thereto shall have been extinguished by the United States, said Indian lands shall remain under the absolute jurisdiction of the United States.”

The United States title to fee lands on the reservation has been so extinguished.

The disclaimer clause is — does not — applicable to those fee lands.

And even the tribe and the Solicitor General concede that Washington has acted to assume full jurisdiction over fee lands.

Fee lands are therefore are not covered by the disclaimer clause or by a debate over the existence or validity of partial jurisdiction.

Next, what substantive forms of jurisdiction are covered by the disclaimer clause?

In an 1896 decision, Draper almost contemporaneous with our Enabling Act, this Court held that Enabling Act disclaimers do not encompass the type of criminal and civil jurisdiction envisaged by Public Law 280 at all.

Draper arose in Montana which shares the same Enabling Act with Washington.

These arguments are of course academic because your three previous decisions on the method chosen by Washington to assume jurisdiction under Public Law 280 were correct.

This is not to say that we entirely disagree with a basic premise of the Solicitor General in this case.

We agree with him that the Congress could have required a popular referendum as a prerequisite to assumption of jurisdiction by an Enabling Act state or for that matter, by any other state, if it had wished to do so on 1953.

We also agree with the Solicitor General that Congressman Westland and others involved in the drafting of Public Law 280 assumed that Washington would be required to amend it’s constitution in order to assume jurisdiction.

But we disagree that those two facts lead to the conclusion advanced by the Solicitor General on the tribe.

They contended that Congress added to a law designed to facilitate the assumption of jurisdiction by the states, an independent federal requirement that a handful of those states do so only by a popular referendum.

That haphazard requirement applies under their theory only to eight states in the entire nation but was to apply to them even though no such requirement existed under state law.

That theory is consistent neither with the goal of Congress in 1953, nor with what it actually said in Public Law 280.

Congress’ goal in 1953 was to have the states assume jurisdiction over Indian Reservations.

In the words of the Solicitor General in this case, that goal was, and I quote, “To pull down the reservation fences that kept out state law.”

We agree.

Congress passed Public Law 280 to enable the states to pull those fences down by removing every federal impediment, not to build new fences.

In fact, some states were required to assume jurisdiction without either legislative or popular approval.

Some other states had constitutional amendments tied to their Enabling Acts.

Those Enabling Act impediments were removed and the Congress authorized the amendment of those state constitutions to which they were tied with two important words as a qualification, and I quote, “where necessary”.

Slade Gorton:

Obviously, that phrase “where necessary” implies that in some Enabling Act states, a constitutional amendment was not necessary.

The phrase is clearly inconsistent with the contention that the Congress intended to add the requirement of a constitutional amendment as a federal requirement even when no such requirement existed under state law.

In fact, the counsel for the subcommittee which drafted Public Law 280 explained that that Section 6 granted states permission to amend their statutes or constitutions where state courts deemed to such permission to be necessary.

Still, other states, those in which neither a constitutional nor a statutory amendment was necessary were required to take affirmative legislative action not including a popular referendum to show their willingness to assume the burden of law enforcement on Indian Reservations.

But the congressional purpose was consistent throughout all three categories of states, to encourage state assumptions, to remove impediments and road blocks, but not to create them.

In 1959, the Washington Supreme Court decided that no constitutional amendment was necessary and has repeated that conclusion on at least three more occasions.

The Ninth Circuit agreed in the Quinault case.

Well, not — the Washington Supreme Court decided that as a matter of state law.

Slade Gorton:

As a matter of state law, yes.

Did it deal with the claim now being made by the tribe and the Solicitor General that as a matter of federal law, it was?

Slade Gorton:

Yes, it dealt directly with it and found that it was — that the legislative history of Public Law 280 together with its precise language and with the “where necessary clause” made it strictly a state law question.

Potter Stewart:

And held — and further held that as a matter of state law, it was not necessary.

Slade Gorton:

Exactly and I’m coming to that at my next point.

The state court’s rationale —

Did you finish your answer to him?

Slade Gorton:

Yes.

I want to be sure about one thing.

In 1957, as I recall, the state jurisdiction with the consent of nine other tribes as to nine tribes —

Slade Gorton:

In 1957, the state legislature passed a statute binding and obligating itself to take jurisdiction on any reservation from which there was a tribal request.

Potter Stewart:

And there were I think eight or nine tribes that made such a request.

Slade Gorton:

Yes.

Does the Solicitor General’s argument apply to those tribes as well as to the Yakima tribe?

Slade Gorton:

Yes.

Half of his argument does.

His argument that we were required to amend our constitution of course does.

Potter Stewart:

That’s the one I’m talking about, yes.

Slade Gorton:

The states court’s rationale, Mr. Justice Stewart, was that though it is technically — though it’s technically irrelevant here, is that the people of Washington speak through their legislature just as the people of the United States speak through the Congress.

Our constitution, Article XXVI has not been repealed but the disclaimer portion has been rendered ineffective, just as the Congress rendered ineffective the Enabling Act provision on disclaimer without repealing it or even amending it in expressed terms.

This is just what Congress seems to have had in mind back at 1889 when it passed a single Enabling Act for Washington, Montana, and South Dakota.

South Dakota’s equivalent to our Article XXVI states that the consent of its people is to be “expressed by its legislative assembly.”

Slade Gorton:

Although a long portion of the Solicitor General’s brief is designed to show that Congress meant that this amendment act changes would have to be made by a popular referendum.

But the President of the United States —

Potter Stewart:

Or be made by — however, the State Constitution provides that the constitution itself can be amended, isn’t that it?

Slade Gorton:

His argument —

No.

His argument — the Solicitor General’s argument based on extensive quotes from the Congress in 1889 was that Congress was applying a federal requirement.

Potter Stewart:

Of a cons — of a state constitutional amendment?

Slade Gorton:

Of a state constitutional amendment by the action of the people.

Yet, South Dakota rejected that.

In writing its constitution, said this legislature could do it and the President of the United States approved South Dakota’s constitution as being in total conformity with the Enabling Act.

If the Solicitor General’s argument is correct, one star should come out of the flag because South Dakota is not validly in the union.

This is exactly —

Thurgood Marshall:

Why do you decide the case — I mean, like the star there.

Slade Gorton:

I hope so.

This is exactly what our State Supreme Court interpreted our constitutional disclaimer to require.

By 1968 of course, Congress knew both of our State Supreme Court decisions and of the similar Ninth Circuit Court decision in Quinault.

The Solicitor General himself agreed that the Ninth Circuit was correct in a brief submitted to you in Quinault.

The Congress had listened at length to both the legal and policy arguments of the Yakima’s and their supporters on the subject.

Congress knew that Washington’s assumption under Public Law 280 was both the most significant and the most controversial of all of the option states, but the Congress consciously and explicitly in 1968 confirmed preexisting assumptions of jurisdiction and obviously meant to include Washington.

Next, the tribe and the Solicitor General assert that Public Law 280 did not authorize what they characterized as Washington’s partial assumption of jurisdiction.

But Washington did not obligate and bind itself to use the terms of the Act to merely partial jurisdiction but to full jurisdiction.

In fact, it did so twice in 1957 and in 1963.

The Solicitor General quarrels with the manner in which the state assumed the jurisdiction in 1963.

In that year, the state obligated and bound itself to assume full jurisdiction but it did not exercise full jurisdiction on the Yakima Reservation because it made that exercise subject to the consent of the Yakima tribe.

We did what Public Law 280 required of us even if Public Law 280 required a state commitment to assume full jurisdiction, a requirement which is evident neither on the phase of the statute nor in its legislative history.

By now incidentally, it should be abundantly clear that while the formal position of the tribe and the Solicitor General is that the state exercise is too little jurisdiction, their actual grievance is that it exercises too much.

At any rate, the Ninth Circuit not only upheld the 1963 state statute in Quinault, it characterized it as we do as an undertaking to assume full jurisdiction as authorized by Public Law 280.

That court also focused on the question of whether or not the state could condition its exercise of full jurisdiction on tribal consent and decided that it could do so.

When the Quinault’s attempted to bring that decision before this Court in 1967, the Solicitor General filed a brief here agreeing with us that Washington’s assumption of jurisdiction was valid even though he characterized it as partial.

The Solicitor General still believes that the phrase “in such manner” in Section 7 of Public Law 280 permitted the state to condition its assumption of jurisdiction in its entirety on tribal consent.

Slade Gorton:

We can see nothing in that phrase which forbids state-by-state flexibility in dealing with the extent to which each authorizes a tribal option.

For that matter, the phrase does not seem to bar even a true assumption of only partial jurisdiction, a course which is actually adopted by five option states.

After all, the 1953 Congress wished to facilitate the assumption of jurisdiction by the states and itself provided for a form of partial jurisdiction in all but one of the mandatory states.

It knew less about the situation in the option states while it was actually working in drafting Public Law 280.

It’s thus difficult to believe that Congress was not willing to permit flexibility in those states and impossible to find such an unwillingness in the language of the statute or in its legislative history.

William H. Rehnquist:

Does Washington Law permit the amendment of the Washington Constitution by a convention, as well as by a referendum?

Slade Gorton:

What the Washington Constitution — does not permit the amendment of our constitution by an initiative.

It permits the legislature to call a constitutional convention after an affirmative vote of the people, which can then deal with the constitution as it will.

The only method —

William H. Rehnquist:

At some stage though, there’s a public referendum on the proposed amendment to the constitution.

Slade Gorton:

Yes.

Washington thus — did not violate Public Law 280 by the manner in which it obligated itself to assume jurisdiction.

By 1968, the Congress knew of the details of the Washington system.

It knew that the Yakima’s and their supporters objected to that system strenuously.

Those tribes pressed vigorously for the right of unilateral retrocession.

The Congress knew of the Quinault decision, validating the Washington system but knew that the Department of the Interior believed in the validity of that Washington system and that Interior asserted that partial jurisdiction was not only a good concept but was authorized by Public Law 280.

Congress heard other witnesses on the other hand who felt that the option of partial jurisdiction was such a good idea that it should be expressly spelled out in the statute.

In 1968, with this knowledge, Congress rejected the Yakima’s demand for unilateral retrocession, ended the argument over partial jurisdiction by expressly authorizing it, and confirmed preexisting assumptions of jurisdiction of which Washington’s had been pivotal during the debate leading up to those 1968 amendments to Public Law 280.

Warren E. Burger:

General Gorton, let me take you back a few steps.

Do I understand from your answer to Mr. Justice Rehnquist that a constitutional amendment in the State of Washington must first go through a constitutional convention called by the legislature and then subject to a vote of the people.

Slade Gorton:

No, Mr. Chief Justice.

Warren E. Burger:

Which is it that’s — is it one or the other?

Slade Gorton:

A constitutional amendment in the State of Washington in the normal sense is proposed by the legislature enacted on by the people.

Warren E. Burger:

And then in what circumstance do you use the convention?

Slade Gorton:

The legislature may also call for a constitutional convention, which if it is approved by the people then meets, then presumably can write an entirely new constitution.

Warren E. Burger:

Then they’ve delegated the power to the convention?

Slade Gorton:

Yes, but the actions of that Convention would have to be approved by the people.

Warren E. Burger:

I understood you — I thought you said to Mr. Justice Rehnquist that even after the convention drafts the amendment, the people must pass on it.

Slade Gorton:

That is true.

If a constitutional convention is called into being in the State of Washington, its actions if any would be subject to the approval by the people.

Slade Gorton:

Our point in connection with this case is that Article XXVI, which includes the disclaimer clause, has in it the preamble, the preamble that it is a compact with the United States which can’t be changed without the permission of Congress and the people of the state.

It is that phrase “the people of the state” which our state constitution has interpreted as meaning the people of the state acting through their legislature, exactly the way South Dakota more expressly provided.

In other words, we have not amended the Article XXVI of our constitution or disclaimer clause any more than Congress has amended the Enabling Act itself.

But Congress said notwithstanding the Enabling Act, you can do what you need to take jurisdiction.

We have done what we needed to take jurisdiction and we did not need to amend Article XXVI in order to do so.

Thurgood Marshall:

General Gorton, I have a little problem with “by the people.”

Could the legislature amend the constitution?

No.

Isn’t that right?

Slade Gorton:

Correct.

Thurgood Marshall:

So isn’t that ways, I mean “by the people,“ it doesn’t mean not the legislature?

Slade Gorton:

No, Mr. Justice Marshall.

Thurgood Marshall:

Well, why didn’t it say it could be by the legislature?

Why did it say “by the people” and the Congress?

Why couldn’t it have said the legislature and Congress?

Slade Gorton:

Legislation is often preceded when it passes the legislature “by the people” of the State of X hereby enacts the following code of laws.

Thurgood Marshall:

I’m not talking about that.

I’m talking about where a document — a legislative document tells about one legislative body, Congress.

And then says the people — I’m talking about the other group — could may — if they’d meant the legislature, wouldn’t they have said the legislature of Washington and the legislature of the United States?

Slade Gorton:

The Enabling Act was of course passed by Congress.

The United States —

Thurgood Marshall:

I’m not talking about the Enable —

Slade Gorton:

— neither then nor — the United States neither then nor today has any power of referendum or any submission directly to the people for votes.

Most states, including Washington (Voice Overlap) —

Thurgood Marshall:

But you do say in this instance, Cong — the legislature of Washington can in effect amend the constitution.

Slade Gorton:

No, I am not, Mr. Justice Marshall.

Thurgood Marshall:

Then what are you saying?

Slade Gorton:

Public Law 28 — in Public Law 280, Congress took — gave its permission.

It wiped out the contract, its side of the contract under which the states were forbidden to take jurisdiction in its entirety.

It says notwithstanding the Enabling Act, and that means notwithstanding the reference to Congress and notwithstanding the reference to the people.

Slade Gorton:

Notwithstanding the Enabling Act, a state may amend its constitution where necessary in order to take jurisdiction.

Now, the same phrase appears in this as a preamble to Article XXVI.

The State Supreme Court in interpreting Article XXVI not the Enabling Act, in interpreting Article XXVI said that under the laws and the constitution of the State of Washington, the people speak through the legislature.

Now, Congress approved that idea —

Thurgood Marshall:

The people — (Voice Overlap) —

Slade Gorton:

— in 1889 because it accepted it from South Dakota.

Thurgood Marshall:

Then you say that in Washington, the Supreme Court of Washington has said that the state can speak through its people through the legislature.

Slade Gorton:

In connection with removing any impediment to take jurisdiction on an Indian Reservation.

Thurgood Marshall:

And — well, so then the State of Washington says that any provision for the protection of Indians in the constitution can be amended by Congress — by the legislature.

Slade Gorton:

No.

The — if that frame — article of the constitution had not had such a preamble which authorized the legislature to act presumably as long ago as 1889 when Congress had given its consent that answer would not have obtained in the State Supreme Court.

Thurgood Marshall:

I guess we are bound by the State of Washington’s interpretation on what is meant “by the people.”

Slade Gorton:

The question here is whether or not there was an independent federal requirement.

Yes, you have always allowed State Supreme Courts to interpret state constitutions.

The question here is whether or not this was a federal requirement.

Our position is the federal requirement was totally wiped out by the Congress when it passed Public Law 280; that’s what it wanted to do.

It gave the state the permission to do whatever state law required to get rid of its disclaimer clause language.

The failure of the Solicitor General to join the tribe in defending the Ninth Circuit panel’s decision overturning the state law on equal protection grounds speaks volumes.

As the Solicitor General said in his memorandum, preceding you’re noting probable jurisdiction —

Mr. Attorney General, you’re moving to the (Voice Overlap) argument —

Slade Gorton:

I’m moving to the equal protection, yes.

I didn’t understand you to urge that the statutory question was not here at all.

Slade Gorton:

I did urge that as the introduction to this entire argument (Voice Overlap).

You do — you’re — and why do you say the appellees aren’t entitled to rely on it?

Slade Gorton:

Well, excuse me, there is a statutory question before you very clearly.

The statutory question this before you without any doubt whatsoever is whether or not Washington assumed the jurisdiction in the manner required by the Congress in Section 7 of Public Law 280, the question which we don’t believe is before you.

Well, why is that — why is that here?

Slade Gorton:

That — because its of —

You didn’t bring it here.

Slade Gorton:

Pardon?

You didn’t bring it here, did you?

Slade Gorton:

Partial jurisdiction is listed in the question as you noted probable jurisdiction.

That question is noted.

We cannot win actually the decision of the Ninth Circuit from which we’re appealing, went off on equal protection grounds.

The Ninth Circuit had previously said that we were right on this partial jurisdiction.

En banc.

En banc, it had said that.

Slade Gorton:

En banc, they said that we were fine on partial jurisdiction.

Then a three-judge panel said that we were — that we lost because we denied equal protection by the method in which we took jurisdiction.

The statutory interpretation question is here because it is necessary for us to win that as well as the equal protection question in order to validate our act.

William H. Rehnquist:

Even if that wasn’t raised in the briefs of the petitioner?

It’s on appeal.

Slade Gorton:

It was —

William H. Rehnquist:

Or even if it wasn’t as presented as a part of this question presented in the appeal?

Slade Gorton:

It’s in the order noting — your order noting probable jurisdiction.

In your jurisdiction statements you list on page eight, only one question —

Slade Gorton:

Yes, we do —

But —

Slade Gorton:

But when the United States replied and when the tribe replied to us, they brought up these additional questions.

Correct.

Slade Gorton:

Because they didn’t want to be limited to the rather weak equal protection argument of the Ninth Circuit panel.

And then the court the court on its own motion listed two questions.

Slade Gorton:

And so you in effect listed two, not listing the disclaimer clause question.

You’re correct.

But your opponents made — filed no cross appeal?

Slade Gorton:

No, they did not.

In fact, the state’s choice was not only — not irrational, it was both reasoned and logical.

It tied at the tribal option, the tribal choice of law to Indian lands or the lands under Indian control.

Most non-Indian residents and businesses on the reservation are located on fee land.

Most transactions between Indians and non-Indians like those involved in your cases of Williams versus Lee and Kennerly take place on fee land.

Slade Gorton:

There’s no doubt do most Indian claims against non-Indians for consumer fraud.

Most traffic offenses and minor crimes by both Indians and non-Indians which affect one another in integrated society take place on fee land.

Thus, it was on fee land that the legislature — with fee land that the legislature was most concerned about establishing a uniformed system of law.

Obviously, that concern affected Indian lands as well, especially in the field of traffic offenses and various social programs administered and financed by the state.

But there, the Indian desire for tribal self-government was a major countervailing consideration.

So on the classic manner of all legislative bodies, the Washington legislature compromised the demands of those who wanted plenary state jurisdiction everywhere and the tribes who wanted no state jurisdiction anywhere.

The Ninth Circuit panel decision from which this appeal is taken found as a basis for its equal protection holding that a Yakima Indian living on trust land received no law enforcement protection from the state while its Indian neighbor on fee land did.

That is a fatally erroneous view of the effect of the states law.

State law does protect the member of the Yakima tribe on trust land from anyone except a fellow member of the Yakima tribe, and that omission is due solely to the choice which the tribe has made.

Even in that situation, the tribal member is treated exactly as a non-Indian on trust land who also lacks state law protection as against the member of the Yakima tribe.

The distinction is not based on a difference in the need for legal protection by the state but on the state’s concern in 1963 for the preservation of a maximum of tribal self-government.

In Antelope less than two years ago, this Court held that the use of land status is the basis for the choice of which criminal law is applicable to an Indian did not constitute a denial of equal protection.

It was simply of no consequence that the federal criminal code differed from that of the surrounding state.

In Antelope, that choice of law worked to the detriment of the Indian defendant.

In this case, it works to the advantage of the Indian who prefers federal or tribal jurisdiction to that of the state.

And in footnote 13 of Antelope, you recognize that a similar choice of law at question would be involved on almost any military base.

Actually, scores of military reservations throughout the United States are divided into not two but three types of jurisdiction, exclusive federal, exclusive state, and concurrent jurisdiction, depending on the date and circumstances under which the United States acquired its title.

That haphazard mixture is apparently of no constitutional significance and in addition to that, it seems to work.

There are of course some limits to the tribal option offered by the state even on Indian land.

The eight subjects enumerated in R.C.W. 37.12.010.

The tribe attacks that form of what it calls partial jurisdiction, as well as the geographical distinctions based on trust status as an unconstitutional deprivation of equal protection and due process.

We’ve already — I’ve already discussed the rationale for the state’s handling of those eight subjects on trust lands but that same rationale caused the Congress in 1929 and again in 1946 in 25 U.S. Code 231 to authorize the state’s partial subject matter jurisdiction on Indian Reservations over health regulations and compulsory school attendance.

And in 1968, the Congress amended Public Law 280 expressly to permit partial subject matter jurisdiction with consent over any subject.

By reason of those 1968 amendments to Public Law 280, partial retrocession is also possible.

But to the best of our knowledge, no such request for the state legislature has ever been made by the Yakima tribe.

Clearly, the tools now exist for a flexible approach to state jurisdictions and it is difficult to conceive that they are used to accommodate both Indians and non-Indians either now or in the past would constitute a denial of equal protection or due process to either group.

Finally, the subject matter of this controversy has of course been before the Congress almost continuously for two centuries and will without doubt be considered there again and again.

The Solicitor General and the tribe therefore ask you to frustrate the obvious intention of both the 1953 and the 1968 Congresses and of the Washington State legislature.

They assert that the practical affect of such a determination would be minimal.

They can make that assertion only by ignoring reality and by assuming, as the Ninth Circuit panel did, that only the tribe is affected by this controversy.

Slade Gorton:

The 1963 legislature in contrast with what we believe was a considerable better understanding of the way in which an integrated society actually operates was concerned with the welfare of all its citizens.

It sought a stable legal system which recognized the legitimate aspirations of both Indians and of their non-Indian neighbors.

Instead of wiping out tribal self-government in the jurisdiction field entirely as the Solicitor General believes the state had to do under Public Law 280, the state substantially preserved it.

Instead of ignoring the desire of reservation non-Indians for the right to be governed by their own laws, a demand not unfamiliar to those who live in the District of Columbia, the legislature granted that right but not to its maximum extent without the consent of the tribes whose members are also voting citizens of the county and the state.

Washington did what it was authorized to do by Public Law 280 and did it well.

Warren E. Burger:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

With the Court’s permission, I’ll concentrate my argument on the disclaimer point that is the proposition that the State of Washington could not assert any additional jurisdiction over Indian Reservations within its borders without first amending its state constitution.

Byron R. White:

On what grounds do you present this issue of?

Louis F. Claiborne:

Mr. Justice White, we take view I hope correctly that an appellee is entitled to defend the judgment in his favor under Section 1254 (2) of the judicial code on any federal ground.

Byron R. White:

But what if the success of your — what if your ground, if you succeeded, if it were sustained, would that give considerably different relief?

Louis F. Claiborne:

There — Mr. Justice White, there might be a problem.

The relief here however would be identical whether that judgment is sustained on the ground reached by the panel of the Ninth Circuit.

Byron R. White:

Oh, I thought this — if you invalidate it on the ground that you are about to urge, it would invalidate the entire law, wouldn’t it?

The — Washington’s entire statutory scheme.

Louis F. Claiborne:

But Mr. Justice White, so did the panel decision in this case find —

Byron R. White:

On equal protection ground?

Louis F. Claiborne:

Finding impossible to sever the permissible and impermissible portions, the Ninth Circuit struck down the entire Washington laws.

I appreciate the judgment of the Ninth Circuit panel.

Byron R. White:

That’s the way you interpret it?

Louis F. Claiborne:

That is so, Mr. Justice White.

We deal with this matter of jurisdiction that is the propriety of the appellees raising these statutory grounds in — on page 15 and 16 of our brief and particularly footnote 9 thereof.

If I may in the shortness of time turn to the substance of the argument, may I begin in this way?

The suggestion has been made that the propositions put from this side of the table frustrate the true intent of Congress.

I suggest to the Court that far from weaving any fine-spun arguments or erecting any technical obstacles to defeat what everybody knows Congress intended in 1953, we on the contrary are faithful to that congressional intent in 1889, in 1953, in 1968.

That is demonstrable in at least two ways.

But for Congress’ recognition that Washington had what appeared to be an impediment in its state constitution, it is predictable with some assurance that Washington would have been treated as her neighbor Oregon and as four other states, that is, would have been subjected to automatic or mandatory coverage.

That is because the five states that were so treated in Pubic Law 280 were those where the responsible officials had consulted both the state authorities and the tribes and therefore, the Department of the Interior was in a position to say to Congress, “These states want jurisdiction.

The tribes either acquiesce or wish to be exempted.”

William H. Rehnquist:

Don’t you have some problem with the equal footing clause and the distinction between the five states you’re talking about and the other states of which you were — so that Washington was not given equal footing when it was admitted to the union, if you’re construction is correct.

William H. Rehnquist:

I mean, to what extent can Congress impose a limitation on a state sovereignty that is not imposed on other states and have it survive the adoption of the state constitution, its submission to the union, like the Coyle case where Congress prescribed where the capital of Oklahoma should be located.

Louis F. Claiborne:

Mr. Justice Rehnquist, I take it that there would have been no constitutional difficulty in Congress’ including Washington with the other five, making it six, just as they did in the case of Alaska, a disclaimer state.

William H. Rehnquist:

Well, there would have been some difficulty in treating Oregon and Washington differently, wouldn’t they?

Louis F. Claiborne:

But they did.

I’m not suggesting that Public Law 280 is unconstitutional because Oregon was immediately given jurisdiction whereas Washington was not.

William H. Rehnquist:

But how about the constitutionality of the Enabling Act?

Louis F. Claiborne:

Mr. Justice Rehnquist, I’m obviously missing the thrust of your question.

I take it this clear that Congress could have overwritten the disclaimer and indeed the state constitutional disclaimer in Article XXVI just as it did in the case of Alaska, which had those impediments, and they could have treated Washington as it did Oregon by giving it immediate coverage.

William H. Rehnquist:

My question — my question goes further back in that and what I’m referring to is the doctrine of the Coyle case which is 221 US 559 where the Court said that even though Congress puts — insists that a state put something in its constitution as a condition for coming into the union, the state may later repudiate that if the result of not repudiating would be to give it less of an equal footing than the other states that were admitted without it.

Louis F. Claiborne:

Well, I’m not in the least attempting to take on the Coyle case, Mr. Justice Rehnquist.

But since here, Congress gave permission to the state to remove this obstacle.

The Coyle problem would seem to disappear.

But my suggestion was, Mr. Justice Rehnquist, that — but for Congress’ recognition that Washington like seven other states had impediment in its constitution because it had consulted with the state officials in Washington, and we have Congressman Westland’s word for it in the congressional committee that Washington wants to come in on jurisdiction.

The Indians had been consulted and two of the tribes had indicated their objection.

What is more, the Department of Interior indicated that they would at least tentatively recommend exemption of those two tribes, and one of those two tribes is the Yakima tribe.

So that if Washington had been treated like Oregon, the result would have been that Washington would have been fully covered except only for the Colville and the Yakima Indians who, like the Warm Spring Indians in Oregon, would’ve been exempted and this problem would never arisen.

Now, that is how Congress treated ever objecting tribe with respect to whom the Department of the Interior indicated that they had a functioning law and order system, no reason to believe the Yakima wouldn’t have been similarly exempted.

So we begin there that it’s a fluke as it were that the question even arises with respect to the Yakima.

What is more, and this is conceded by the State of Washington, it is clear that if anybody had walked in on the congressional hearings of this matter in 1953, they would have come away with the conviction that every member sitting thought Washington could not take jurisdiction until and unless it had amended its constitution.

And for that reason and for that reason alone, Congress wrote Section 6 of Public Law of 280.

And not only did it write Section 6, it provided the proviso of a Section 6 as to the effect that jurisdiction under this Act shall not take hold until after the appropriate amendments have been made.

So the congressional understanding was that Washington would not now be free to assume jurisdiction having failed to take any action to amend its constitution.

William H. Rehnquist:

Do you think in view of the language of Section 6 that even though only a statutory amendment had required — had been required under state law, that would nonetheless have to have been “by the people” rather than by the legislature?

Louis F. Claiborne:

Mr. Justice Rehnquist, had the obstacle only been statutory, the legislative history is ambiguous.

I think it probably right to say that in that event, it would have been in view of the — those writing, Public Law 280 a matter to be determined by state law.

William H. Rehnquist:

And yet the language is exactly the same in the law as written.

Louis F. Claiborne:

But do — when Mr. — I suggest Mr. Justice Rehnquist, look at it in this way, the words where necessary or introduced for one of two reasons, we suggest.

Either simply to identify those states with disclaimers.

It may mean nothing more than that.

Or as we suggest in our brief, it may mean where there are only statutes, not constitutional provisions, and in the view of the state court, it is nevertheless necessary to remove that obstacle by popular referendum.

Louis F. Claiborne:

It was so suggested by a committee counsel in the hearings and that is we suggest the only reason why the words “where necessary” were introduced.

To read it otherwise is to make Section 6 wholly surplusage and to read out the proviso which says, “Such jurisdiction shall not obtain until and unless the appropriate amendment has been made.”

John Paul Stevens:

Mr. Claiborne, I’m not sure that completely answers Justice Rehnquist’s question because both in the proviso and in the introductory portion of 6 is a reference to the people amending the constitution or statute as the case may be.

In both cases, the word people would seem to encompass acts by the legislature.

Do you agree or disagree with that?

I’m not clear —

Louis F. Claiborne:

Mr. Justice Stevens, I think the choice of the word people was because of the recognition that it a Constitution, in the case of Washington and as everywhere else, has to be by popular referendum, but that would — does do doubles service.

It includes the legislative amendment of the statutes and it’s an awkward —

John Paul Stevens:

And you in your view of the word people as used in both parts of Section 6 can refer to acts by the legislature without a popular referendum?

Louis F. Claiborne:

Insofar as it addresses statutory — only statutory impediments.

I think that is the best we can do, Mr. Justice Stevens, in attempting to pass out what was in the Congressional mind.

John Paul Stevens:

I agree it’s the best you can do.

Louis F. Claiborne:

Now, set me the question whether Congress acted on its understanding, right or wrong, that the Washington Constitution was an impediment that only popular referendum could erase is a federal question.

If Congress acted on that understanding and wrote Section 6 in the proviso thereto with that understanding; that is binding even if as a matter of state law; the impediment could have been erased by legislature.

We think Congress did act on that understanding whether or not it was a misunderstanding and that as a matter of federal law, the state must do what Congress thought to be necessary in order to take jurisdiction.

Byron R. White:

Do you think if after Congress acted on that assumption, Washington amended its constitution so as to make amendments adoptable just by the legislature?

Louis F. Claiborne:

I’m not — Mr. Justice White, that’s an interesting in-between situation which fortunately, we don’t have to face but —

Byron R. White:

Oh, I don’t know the — since that time, the Supreme Court of Washington has interpreted its constitution to not to require a referendum.

Louis F. Claiborne:

Had they amended their constitution to so provide, we might have a closer question.

I would still argue that the state was bound by the conditions imposed by Congress whether in — perfectly clear if Congress had said the states of Washington and the other seven shall not assume this jurisdiction until they have by popular referendum amended the provisions of their constitutions which we rightly or wrongly view as a bar to their taking jurisdiction.

No one would argue in those circumstances that it mattered what the state law situation were.

Warren E. Burger:

If the language had been simply by law?

Louis F. Claiborne:

Indeed, Mr. Chief Justice.

Warren E. Burger:

And there’d be no problem, wouldn’t it?

Louis F. Claiborne:

And we say that — construed in the light of its legislative history that is what the court is confronted with in Section 6.

Now, we do go on to say that Congress was correct in assuming that the obstacle in the state constitution, because it derives from the Enabling Act which was — and therefore was written in the Congress for a federal purpose must, as a matter of federal law, be construed as not erasable by any means other than a constitutional amendment.

Potter Stewart:

But — or whether or not — but your contention that Congress was correct in its understanding is not really a necessary part of your argument, is it?

Louis F. Claiborne:

Indeed.

Mr. Justice Stewart, exactly so.

It is not a necessary part.

Potter Stewart:

Because your basic argument is that right or whether Congress was right or wrong about the necessity of providing what it did, it did in fact so provide.

Louis F. Claiborne:

Indeed, Mr. Justice Stewart.

One last word, if I may.

The result which we suggest is rightly reached in this case does conform with the congressional policy in 1968 to compel the parties, the tribe and the state to reach accommodations at arms length and therefore to reduce the friction and the inefficiency of a law enforcement system where the parties are at odds.

The parties should now return to the bargaining table as free agents and work out on accommodations.

John Paul Stevens:

Mr. Claiborne, before you sit down, I’d like to ask you one further question on the jurisdictional problem that Justice White identified.

Is it not correct that if we accept your theory as opposed to the theory of the Court of Appeals, that will invalidate the assumption of jurisdiction with respect to the nine tribes who consented to a full acceptance of jurisdiction, whereas the rationale of the Ninth Circuit would not?

Louis F. Claiborne:

Mr. Justice Stevens, it is certainly correct that our submission would, though perhaps not in this case, but the logic of our submission would invalidate those assumptions with respect to tribes between 1957 and 1963 who took on full jurisdiction.

And it may be that that is not the consequence of the panel’s decisions except only if one reads the 63 Act and the 57 Act as part of a whole.

And I suggested to Mr. Justice White that that is how I read the opinion of the panel.

Byron R. White:

The opinion on the Ninth Circuit just dealt with one section, its equal protection clause, Subsection 10 — of the — how about the —

Louis F. Claiborne:

I think I stand corrected and withdraw the answer.

Byron R. White:

And how about the —

How about the — Mr. Claiborne the — how about the state jurisdiction over non-Indians, over whites?

Louis F. Claiborne:

Insofar as —

Byron R. White:

What about whites against Indians?

Louis F. Claiborne:

Well, there I think the Ninth Circuit did hold that one couldn’t pass it out.

Byron R. White:

Well, it dealt with only one Section and that Section dealt only with Indian defendants.

Louis F. Claiborne:

Well, I had thought, and I may be wrong Mr. Justice White, that what the Ninth Circuit has held was the 63 Act is unconstitutional, is violative of equal protection.

They perhaps left standing the 57 Act if one can read it as an independent legislation, which is historically because it was.

Byron R. White:

Well, it said we invalidate Section 37.12.010 and 37.12.010 cited in its footnote, just deals with in Indian defendants, doesn’t it?

Louis F. Claiborne:

But if one looks at the jurisdictional statement at page 35 —

Byron R. White:

Yes.

Louis F. Claiborne:

Mr. Justice White, on the right hand column, we are — can the invalidated portion of Section so forth be separated from the remainder of the statute or does the whole statute fall?

The Washington legislature could have severed these provisions but we cannot do so.

The statute contains no severability clause.

We are unable to attribute to Washington the willingness to include more jurisdiction than it undertook partially to assume.

And I read that perhaps too hurriedly as indicating that all of the 1963 statute, with its discrimination between trust and non-trust land and its discrimination between cases in the eight categories which all within state jurisdiction even over trust land and even over Indian defendants, that that whole complicated structure must fall.

John Paul Stevens:

That’s just the 1963 Act (Voice Overlap) —

Louis F. Claiborne:

That’s only the 1963 Act.

John Paul Stevens:

— 1957 Act with your present submission would.

Louis F. Claiborne:

Mr. Justice Stevens, as I think I indicated, I must withdraw the answer I gave to Mr. Justice White and agree that — to that extent, the results appeared to be different, that is to say that the question there —

John Paul Stevens:

Then the question they had raised is and I don’t know the answer to the question that raises — does that affect our jurisdiction to entertain this particular argument.

Louis F. Claiborne:

The result may be, Mr. Justice Stevens, that while the successful appellee can hardly be deprived of his judgment when he had no standing to bring the case here and is therefore entitled to defend it on any federal ground, perhaps the judgment cannot go further than we would have gone than it was in his favor below.

He merely defended the judgment; he can’t go further.

I would, I would submit that submission.

Byron R. White:

In any event, it’s a sort of a housekeeping rule, isn’t it?

Louis F. Claiborne:

Indeed Mr. Justice White because this Court itself indicated its willingness to entertain —

Byron R. White:

In reaching — in reaching statutory questions first is also a housekeeping rule.

Louis F. Claiborne:

And it is the reason of course without intending to disparage any other argument that we put the statutory questions first and foremost.

Warren E. Burger:

Mr. Hovis.

James B. Hovis:

Mr. Chief Justice, and if it pleases the Court.

If I could just take a moment to respond to the last question.

This 37.10 — the 37.12.010 has only to do with Indians.

And as Justice White has pointed out right in the first part, it says it assumes jurisdiction over Indians only and it does not assume any jurisdiction over non-Indians by the 37.12.010.

The state’s assumption of jurisdiction over non-Indians within the reservation fall from the McBratney and the Draper exception.

So —

When did Washington — from under what statute did Washington, rather than the United States, have jurisdiction over non-Indians committing crimes on an Indian Reservation?

James B. Hovis:

The McBratney exception where it’s Indian against — where it’s non-Indian against non-Indian, which is a case of this Court that creates without exception.

Oh, yes but how about an — how about a non-Indian against an Indian?

James B. Hovis:

Non-Indian against an Indian, that is in federal court except where it’s — what I’m saying in — if there’s an Indian —

Oh, hasn’t Washington purported to assume jurisdiction over non-Indian crimes against Indians?

James B. Hovis:

Yes, for — it is purported to assume jurisdiction.

In some cases, it is a -– it depends on what prosecutor you’re talking to.

It — this Act is a rather confusing one for all of us to deal with because it’s so open that the —

Well, does the — does the 63 Act that’s involved in this case deal with non-Indian crimes, non-Indian defendants or just Indian defendants?

James B. Hovis:

It just deals with cases in which Indians are involved and it deals with Indian defendants.

Completely and what Act, if any, deals with the crimes by non-Indians on Indian Reservations or is there such a Washington Act?

James B. Hovis:

There is no such Washington Act and I’m just going from the plain reading of the statute, 37.12.010.

The state has interpreted it different prosecutor by prosecutor in different areas.

James B. Hovis:

It depends on who doesn’t want to do the job when the complainant comes to the particular prosecutor, but I direct your attention to the plain reading of the act as to whether it affects Indians or non-Indians.

In the treaty in 1855, the Yakima Nation was reserved explicitly and implicitly the right to control its internal affairs by its own laws and by its own government.

And for a good number of years, the Yakima Nation exercised that right with responsibility.

A time in 1953, they were exercising that right of control within the exterior boundaries of the reservation with responsibility and Congress, because of other areas of the country were not exercising the responsibility, passed Public Law 280.

This Act provided directly for state jurisdiction in five listed states and provided for assumption by statute in ten other states, and in Washington and seven other states provided for assumption of state jurisdiction by the amendment of the state constitution.

In 1955, in the first legislative session after that act, Washington’s — the proponents of state jurisdiction over Indians tried to get a statutory — constitutional amendment for the legislature.

They — they did not amend their constitution.

In 1957, they provided by legislative act that the tribes who wished jurisdiction could petition for jurisdiction.

Ten did, others didn’t.

It’s interesting to note however that even the tribes who have given it a fair trial and who wished jurisdiction because of their experience they’ve had for the lack of adequate protection are petitioning this Court in amicus brief to be removed from state jurisdiction in the State of Washington.

We came to 1963 and unilaterally and without amendment of their state constitution, the State of Washington passed 37.12.010.

And this Act allowed the state to assume full jurisdiction over non-trust lands and assumed partial jurisdiction over trust lands for eight non-specified or non-defined or non-referred categories.

The rest of the jurisdiction over Indians and Indian matters remained with the tribe and with the Federal Government.

And so we had about four different systems underneath this Act for law enforcement officers to become familiar with.

Now, the result of this unilateral action by the — on the part of the State of Washington contrary to the treaty promises the Yakima’s, has been law without order on the Yakima Reservation.

The record is clear in this case that the system is not adequate to handle the problem.

The state has admitted that their system is not adequate in two reports into which we referred to.

And it is particularly, and our biggest problem, it’s particularly discriminatory in causing a lot of tribe problems as regards our Indian youth.

The problem is that the state and county have neither the inclination nor ability to provide law and order that they so unilaterally assumed over our objections.

Mr. Gorton had his map here and he pointed out the vast area of the Yakima Reservation over 2,000 square miles and there’s deeded and non-trust lands sprinkled throughout even in the closed area.

But if you will notice from the record that in 1971, which was the last available figures that were available at that time this case was heard in 1972, the state made two felony arrest outside of the cities and towns, often this vast areas and 17 misdemeanor arrests.

Unfortunately gentlemen, the Reservation law and order system under Washington system does not either meet any national standards.

It doesn’t meet any parity statewide standards.

Sure, we have as good at reservation — a good law and order as they do in some other bad parts.

It has no parity with cities and it has no parity if you please with other parts to the county.

If you’ll notice that while they’re talking about 40 deputies assigned to the county today, at the time of the trial there were 29 and even though the whole area of the county is only 4,700 square miles, only two were principally assigned to the reservation, which is over half that area, and only seven were assigned to the entire lower valley which has a bigger population than the rest of the rural area.

Now, what has happened here is been a decline of arrests of over 2000% above and beyond the time when the Indians were — that was any Federal Government was handling the responsibility and the juvenile situation is a scandal, and that’s our biggest problem.

Washington in its reports agrees to the lack of adequacy, if you’ll see in the record.

And the county officials, particularly in the testimony were particularly agreed that it was discriminatory, that there was more factors available for non-Indian youth than there was for Indian youth.

Now, if there is to — going to be law and order in the Yakima Reservation, we must regain our law and order and we’re here today to see whether underneath the law, it is ours.

James B. Hovis:

The Yakima’s throughout all this time and are today been very responsible on this.

In spite of the unwarranted intrusions into their jurisdiction, they’re spending per capita, spending per capita for each and every member more for law and order than any other community in the United States, even though they have not got the total responsibility.

Washington as I said in contrast refers to meet any — refuses to meet any reasonable standards.

Now, as I understand my duty to this Court, it is first my duty to indicate to this Court why I believe that 37.12.010 should not pertain to the Yakima Indian nation before I get into the constitutional grounds.

Now, I think that can be easily demonstrated, gentlemen.

Undis — it is undisputed by all the parties here that the treaty with the Yakima’s explicitly and implicitly reserved the Yakima powers over their internal affairs to be governed by their own laws and by their own government.

Now, the State of Washington —

Mr. Hovis, may I ask one question.

James B. Hovis:

Yes sir.

It’s kind of a broad question I guess, but you emphasized only two felony arrests by the state.

In the felony area, isn’t it true that the replacement was the state instead of the federal authorities and — since there wasn’t tribal jurisdiction anyway, isn’t that right?

And so their grievances — but isn’t it between the federal and state sovereigns rather than as between the tribe and the state on this portion of the law enforcement?

James B. Hovis:

Yes, but it — is — if the — the record shows that in the — prior to the state coming in, in 63 that were some 17, I think it was, of felony arrests, in other words, the felony arrests decreased by 2000%.

But — but that’s — but they were 17 arrests by federal authorities, not — we’re not talking about tribal enforcement now, are we?

James B. Hovis:

Most of the enforcement if you please has — was by tribal authorities which turned them over to the Federal Government for prosecution.

I see.

James B. Hovis:

Now —

And are they disabled from doing that with respect to the states?

Could they do the same thing?

The Federal Government had the responsibility before but the tribe more or less volunteered to help out.

They’re prevented from doing that now?

James B. Hovis:

No, and we’re doing the job now.

We’re done — we’re doing the job now.

We’ve got —

Well, then how is the situation in the major crimes area really any basically different than it was when it was the Federal Government that prosecute it?

James B. Hovis:

Well, the first place — let me take first for a victim, Justice, let me take a victim.

Who does he go to?

Who does the victim go to?

He doesn’t go to the state and call the state.

Does he call the tribe?

James B. Hovis:

The — the county doesn’t even have a telephone for their — you have to call long distance to get the county sheriff.

Who do you go to?

You go to the tribal authorities and so forth.

Once the tribal authority goes out and investigates, he — you take it up to the prosecutors.

What I’m (Voice Overlap) —

What I’m really asking is how is it different than when he had the same question before?

Who does he go to, the FBI or the tribe?

James B. Hovis:

He went to the tribe, well, usually and then — and the FBI accepted it.

We had a lot of — we had a lot more cooperation.

And can they do the same thing now?

That’s why I’m asking it.

James B. Hovis:

You take — you can arrest the person but you can’t get him prosecuted.

Well, with that –must state agrees but wasn’t it true also when the Federal Government was the prosecutor?

James B. Hovis:

Yes, but the Federal Government prosecute and the state does not.

So, it isn’t with the arrest but with the failure to prosecute where an arrest has been made by the tribe?

James B. Hovis:

Well, the biggest problem is that the people, the victims are so confused.

They don’t know where to go to.

They don’t know what law is.

The police officers don’t know what it is.

They don’t know what category.

What is the domestic relation, for example.

I can under -– the thing, I have trouble with it, why is it any more confusing now than it was before, when it was the federal rather than the state?

That’s what puzzles me.

James B. Hovis:

Okay.

I don’t quite —

James B. Hovis:

Now, for a — generally, among — practically among law enforcement officers, they tend to respect each other’s jurisdiction.

The — for example, the FBI wouldn’t anymore be going into a matter into a local — getting away from the Indian situation but no — more go into a state and start investigating a crime until they were requested by another department.

That’s just one of the ways that it works.

Departments respect other department’s jurisdiction.

So, they give the other department the first crack at it.

James B. Hovis:

That’s the first thing that happens.

That’s the reason.

Then we’ve got the tract system.

No one can tell in our reservation whether it is deeded property or trust property.

These tracts are all interspaced and non-Indians live on the Indian lands or trust lands and Indians lived on deeded lands.

No one knows just exactly what the title of the land is.

Now, that’s the next problem.

And then we get to the problem of the eight categories.

What are the eight categories?

What is — for example domestic relations?

What kind of a crime is domestic relations involved that you can’t even find the definition of what domestic relations is in a law dictionary?

Is it domestic relations problem?

Is it a — is this kind of a problem?

It’s frankly.

I suggest that —

I suggest that it’s confusing enough for me as a prosecuting attorney testified at the trial — he said every prosecutor interprets it in a different way.

May I ask you — could I ask you —

Could I ask you, let’s assume that you — that your position prevails here.

Then let’s assume there is a crime by an Indian on the Reservation.

Now, if it’s a major crime under the Major Crimes Act, the federal authorities have to prosecute.

James B. Hovis:

Yes, they do.

Now, what if it isn’t a major crime but it isn’t a misdemeanor either?

Isn’t there an Assimilative Crimes Act?

James B. Hovis:

There is an Assimilative Crimes Act.

And in which event do the federal laws incorporate state law for that purpose?

James B. Hovis:

The federal — if it’s a misdemeanor — you see, if we have jurisdiction, if it’s a federal crime, the Federal Government has exclusive control over the 13 major crimes.

I understand that.

But that’s not what I’m talking about — let’s take a major crime, they have exclusive jurisdiction over it.

James B. Hovis:

Yes.

One of the major crimes.

Now, what is the role of the Assimilative Crimes Act?

James B. Hovis:

They just meet — some of —

Where — that’s covered — that’s in the event of a crime that is not a major crime.

James B. Hovis:

That’s correct.

Now, in that area, the crimes are defined by state law, I take it.

James B. Hovis:

Yes, they are.

And then there’s a third category of crimes that are covered by tribal law.

James B. Hovis:

That’s correct.

All crimes are covered by tribal law where the Federal Government has not taken exclusive jurisdiction.

But (Voice Overlap) —

James B. Hovis:

So if the Federal Government doesn’t prosecute, we can still prosecute not for a felony but at least we can prosecute, at least the person just doesn’t beat the police officer back to his home.

And the — (Voice Overlap) —

Potter Stewart:

But there’s a limitation upon what punishment can be imposed now.

James B. Hovis:

What?

Potter Stewart:

There’s a limitation upon the maximum punishment that can be imposed by a tribal court.

James B. Hovis:

There is.

Unfortunately, there is a limitation on the maximum —

Potter Stewart:

Six months, isn’t it?

James B. Hovis:

Yes, six months and $500.00.

Potter Stewart:

Right.

James B. Hovis:

And we think that’s unwise on the part of Congress but that’s —

Potter Stewart:

But there it is.

There is a (Voice Overlap) —

James B. Hovis:

There it is.

And —

Potter Stewart:

But if it’s a crime that calls for a greater punishment in that, the tribe has no jurisdiction over it, I take it?

James B. Hovis:

No, we can only punish — but it’s better to punish them for that than walk down them down the road, Mr. Justice Stewart.

Potter Stewart:

The tribe does have jurisdiction but on the Wheeler decision, the Federal Government can then prosecute for the same conduct.

James B. Hovis:

Correct.

Byron R. White:

Oh, it’s just that it isn’t exclusive?

Potter Stewart:

Wouldn’t be void by double jeopardy.

James B. Hovis:

It’s not exclusive.

Its —

But underneath the court’s decision here, we have no concurrent jurisdiction whatsoever.

Potter Stewart:

Yeah.

And we’re — only thing we can do is to prosecute Indians on trust grounds except for the eight undefined and unreferenced categories.

Oh, I thought it was your claim that you had concurrent jurisdiction.

James B. Hovis:

It is our claim that we’re —

Potter Stewart:

That — is that — but that wasn’t decided.

James B. Hovis:

Yes, it was decided that —

Potter Stewart:

In this case below but by the Court of Appeals.

James B. Hovis:

Not by this Court of Appeals, but the —

Potter Stewart:

That’s what I mean, the judgment had been reviewed here but you asked that this Court, even if we disagree with the Court of Appeals, that we proceed to decide the question of whether or not the jurisdiction is concurrent.

James B. Hovis:

Yes sir.

Potter Stewart:

That’s what I understood your brief decided, doesn’t it?

James B. Hovis:

Yes, sir.

That’s — that’s correct.

But what I’m saying, we don’t have it now because of the —

Potter Stewart:

Oh, the District Court’s opinion.

It — District Court’s opinion.

Now, with all these problems we have with having these treaty powers and having them taking away, this is — this Public Law 280 affects the Yakima tribe.

We think it does not.

That’s the first problem that we think is a way — this Court can handle this question.

Now, we don’t think that this law affects the Yakima Nation and let me explain to you why not.

We have those explicit and implicit powers to govern our people in our own way by our own government.

Now, Washington has contended that Congress has the power to — absolute power to abrogate these treaty powers and these treaty provisions.

We disagree.

We think that this Court has said that this power is not absolute and that to abrogate the treaty that Congress must act in a constitutional manner, number one and two most specifically and explicitly abrogate the involved treaty provisions.

William H. Rehnquist:

Well, in point number one, what do you do with Lone Wolf against Hitchcock?

James B. Hovis:

Well, as I understood this Court’s decision in Weeks versus Delaware, they said that Lone Wolf versus Hitchcock was — has been ignored by this Court for some 50 years and that it was about time that this Court said so, and I was — and I understand that Weeks, it’s a —

William H. Rehnquist:

Oh, it’s decided in (Inaudible) or in a case that was recently as two years ago.

James B. Hovis:

Well, I — this — I suggest that this — I was hopeful in the reading of Weeks that this Court had determined that the — that Congress, when it came to doing away with treaty provisions, would have to act in a constitutional manner in that regard and that’s the way I interpreted the decision of this Court in Weeks versus Delaware.

And also, in Menominee, I understood this Court to say that you must specifically and explicitly abrogate treaty rights.

You can’t do it by implication and it must be done clearly.

So, it’s clear in this case that Congress neither explicitly or specifically abrogated these treaty rights.

And it’s also clear, as Solicitor General pointed out, that Congress clearly intended to exclude the Yakima’s because of the hurried manner in which this Act was put together — and I suggest that neither the federal act nor the state act as any specimen of good legislation drafting — but in the hurried enactment of that legislation, the Yakima’s were not excluded.

If they had been one of the named states, they would have been excluded.

They were — their law and order was satisfactory and it was recommended to Congress that they be excluded.

Now, Washington has contended in this case that Washington can assume jurisdiction over the Yakima’s in any way or manner that Washington in this whole judgment determines.

They’re saying it was up to the state to determine whether they could ignore the mandatory provisions of their constitution, and I want to point out to the Court that that’s what they’ve done.

They’ve ignored.

They didn’t even — they didn’t even amend the Article XXVI of their Constitution even by a legislative act.

It still sits there.

Whatever amendment Article XXVI there is, it’s by implication only.

Potter Stewart:

Well, of course that question has been decided for us, hasn’t it, by the Supreme Court of Washington.

And even if we — as sitting on the sidelines might think it’s a very wrong decision, it’s none of our business.

We have nothing to do with it.

Isn’t that correct?

James B. Hovis:

Oh, I —

I don’t think that’s true.

I think that’s an issue here.

First, I think it’s an issue in interpreting what Congress did.

Potter Stewart:

Well, that’s a federal question.

James B. Hovis:

That’s a federal question.

In other words, for the State of Washington to have different rules in amending sections that apply to Indians and allowing it to be done by implication, when you get over here where you’ve got another section that applies to the rest of the populace or other problems, they have to go through the mandatory amendment procedures.

For the Supreme Court to come up with that kind of a decision I think is a lack of due process, substantial due process.

Potter Stewart:

Well, that’s not — that hasn’t — is that argument made here?

James B. Hovis:

Yes, it is.

It has been made all the way through this case if your Court please, and it also I think, it intend — it shows that the Congress is right when they asked this Court to — when they asked the State of Washington to amend their Constitution because if —

Potter Stewart:

If necessary, Congress said.

James B. Hovis:

If —

Well, I think there right — yes, I think its necessary —

Potter Stewart:

And whether or not it’s necessary, it’s a matter of state law, isn’t it?

James B. Hovis:

It’s a necessary as a matter of federal law and as a matter of constitutional law.

Potter Stewart:

But whether or not it’s necessary to amend the Washington Constitution in order for the Washington legislature to do this or that or the other thing, isn’t that wholly a matter of state law?

James B. Hovis:

The — whether the state has to —

Potter Stewart:

A matter (Voice Overlap) of state constitutional law.

James B. Hovis:

It’s a matter of state constitutional law but the state no matter has to follow the constitutional provisions of the United States.

Potter Stewart:

Without question.

James B. Hovis:

And they must do things in a due process and with equal protection way.

Potter Stewart:

Without question.

James B. Hovis:

Yes, whether it’s a constitution or whether it’s a statute, and they haven’t done that.

They haven’t accorded this due process in the amendment of the constitution.

If that’s due process, that’s something I didn’t — you know, that’s the kind of action —

Thurgood Marshall:

(Voice Overlap) can Congress tell the State of Washington how it may and may not amend its constitution?

James B. Hovis:

No, but it can —

Thurgood Marshall:

They can, does not (Voice Overlap) do that.

James B. Hovis:

Congress can’t tell them how they may amend their constitution.

But Congress, this is a power that was solely with the United States of America, the relationship between Indians and the jurisdiction.

Thurgood Marshall:

Well, I know it’s a (Inaudible).

Can Congress say that if Indians are involved, a state cannot amend its constitution by the legislature?

James B. Hovis:

Congress can say if you — we are delegating this federal power to you over Indians.

But before you can accept this federal power over Indians, you must amend your constitution in the way that we say you must amend it.

And it’s clear in this case that Congress —

Thurgood Marshall:

And that’s different from my question.

James B. Hovis:

Yes.

No, it’s the — the state law is interpreted —

Thurgood Marshall:

Is it?

James B. Hovis:

If state —

Thurgood Marshall:

Is it different?

James B. Hovis:

It is different.

If state law is —

Thurgood Marshall:

Do I have to find a difference, the rule with you?

James B. Hovis:

The — Congress cannot tell the state how to amend its constitution.

But if they’re going to delegate the powers to the state, like in this case, they can tell them what to do, and they did.

They told them they had to do it by the people, and that’s what they’ve done.

I really question in this case that the matter is up whether Congress could make such an unfettered delegation at any way.

These legislative and judicial powers that are definitely federal are vested with the Federal Government, not with the state government.

And such a — such a lose delegation of — as counsel would argue that they can — that it was said to the state to do it any way that you want to or any way that your laws permit is not what I think Congress did nor something that I think Congress can do.

I think to delegate this exclusive federal power in such an unfettered manner is not within Congress’ powers.

Finally, we reach the question of the Circuit Court’s decision of this being on equal protection underneath the laws of not providing protection based on the title of the land.

And the Circuit Court said that that provision was not equal protection and therefore, that portion of the Section under 1963 would be stricken as unconstitutional.

Now, I think the Court was very clear on that.

They didn’t go into whether there would be strict scrutiny or not.

They said there was no rational basis.

I want to point out to the court however that the rational basis that the state has come up here at this very late date is a very -– is new, never been brought into this case before, and is inconsistent from their present position and inconsistent with their position before this Court in Docket 78-119.

In that case, in the fishing matters, the Supreme Court of the State of Washington is saying that in regards to Indians and non-Indians, that there are — in regards to the treaty rights that there can be no differentiation or it’s a violation of equal protection of both state and federal constitution there.

So, the state is trying to have it this way in this case and the other way in the other case and it’s certainly a new rationale that they came up with.

I would like to have the court consider also in this matter that strict scrutiny should apply.

It’s true that this is not a racial situation but certainly, my clients are discreet and hence, we’re minority.

And certainly, the rights involved, the rights, the protection of person and property are most fundamental.

And if it’s necessary, I would like to have the court give that consideration.

I do not think — I don’t think that there’s — even this new fancied rationale that the state comes up with at this late stage which is inconsistent from any position that they’ve ever taken that the court will be necessary to reach that question.

There’s no question that the clearest and easiest way to reach this question is on the constitutional disclaimer problem.

I certainly think that that is most clear.

Thank you very much for your time.

Warren E. Burger:

General Gorton, do you have something further?

You have about eight minutes remaining.

Slade Gorton:

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

Mr. Justice White, you were inadvertently I’m certain totally 100% misled by the answers of both Mr. Claiborne and Mr. Hovis to your question on the scope of R.C.W. 37.12.010.

Slade Gorton:

That statute — under that statute, the State of Washington obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, counties, lands, country lands, the whole works.

It is of course from that statute that we derive our jurisdiction to try a non-Indian for assaulting an Indian which we did not have under U.S. v. McBratney.

Potter Stewart:

Right.

Slade Gorton:

Precisely every prosecuting attorney in the state knows that.

Byron R. White:

Well, your opponents suggest that Washington has never assumed jurisdiction over crime by non-whites.

Slade Gorton:

That’s simply nonsense.

My co-counsel here is the prosecuting attorney of the Yakima County who literally does that every week.

In any of that, that that source of jurisdiction, as a matter of fact, it’s because of that reading of 37.12.010 that I indicated to you what I did.

The protection —

Byron R. White:

Oh, I picked this up from your brief.

You indicate that if you don’t prevail here, the state’s jurisdiction over non-whites — over whites, over non-Indians will be invalidated.

Slade Gorton:

Non-Indians.

Byron R. White:

And that the Federal Government will assume that.

Slade Gorton:

It will —

Absolutely, except for the McBratney conception.

Byron R. White:

But that would not — that would not expand their — that would not expand the relief to the other side.

That was covered by the Ninth Circuit invalidated that jurisdiction.

Slade Gorton:

The Ninth Circuit —

The Ninth Circuit does that totally without condition.

The Ninth Circuit may not have invalidated the 1957 Act but the 1957 Act isn’t applicable to the Yakimas since they did not petition for jurisdiction.

Potter Stewart:

Mr. Gorton, you said except something and I’m —

Slade Gorton:

Except for the McBratney exception.

Potter Stewart:

Oh, yes.

Slade Gorton:

The state would still —

Potter Stewart:

A non-Indian against a non-Indian.

Slade Gorton:

A non-Indian.

Exactly.

In any event, that statute is what gives to Indians and non-Indians on both fee lands and non-fee lands, on trust lands exactly the same measure of protection.

They have total protection on fee lands.

Both the Indian and the non-Indian have protection on trust lands against everyone except for a member of the Yakima tribe.

Slade Gorton:

The Indian and non-Indian are in exactly the same situation.

Byron R. White:

What about Indians committing crimes on fee lands within the reservation?

Slade Gorton:

On fee lands within the reservations are totally subject to state jurisdiction.

Byron R. White:

And so there does — there is a difference as to who prosecutes misdemeanors.

It depends on where they were committed.

Slade Gorton:

Yes.

Yes, it does.

Now, I didn’t go — I did answer your first question to me on my direct as well as I should have.

Actually, that police confusion is practically non-existent because the tribal code is practically identical in all of its definitions to the State Criminal Code.

That’s simply a practical matter, however.

The other matter which really amounted to retrying his case, which Mr. Hovis stated here even though he did not prevail on the trial court, has to do with his outrageous use of arrest figures.

And Mr. Justice Stevens really answered that question.

What has happened Mr. Justice Stevens is that those arrests now are being made by the tribal police under their deputization from the county sheriff.

The same number of people are being arrested.

They aren’t being arrested by the Deputy Sheriff and I mean a Deputy Sheriff because the tribe keeps us off of two-thirds, you know, has closed to two-thirds of the reservation to entry by non-Indians.

Potter Stewart:

But what if the tribal policeman is acting as a county deputy sheriff, wouldn’t the arrest figures show that the arrest was made by a deputy sheriff?

Slade Gorton:

No, the arrest figures that were given there were arrest figures by the county sheriff.

Potter Stewart:

Not by the deputy?

Slade Gorton:

Not — not by anyone else, not by the state patrol, which among other things have four times as many arrests as the county sheriff did, and which is also cross-deputized by the tribal police.

Now, back to the submission of the Solicitor General in this matter, the Solicitor General wishes that the phrase “where necessary” were not in the statute and it would make his case a great deal easier and mind a great deal — more difficult.

But he so — he says, “Well, maybe it just is a reference to the fact that these are disclaimer states or maybe it applies only to statutes.”

But of course, it doesn’t.

That phrase appears right after the word “amend”, to amend where necessary its constitution or statutes, and what it means is quite obvious.

It means that the state determines under state law whether it’s necessary to amend a constitution or a statute.

If it is not necessary under state law, the state is a Section 7 rather than a Section 6 state.

Congress was not interested in building up extra fences making additional federal requirements which didn’t pre-exist.

I simply wish to go back to the point which I made a great deal of the Solicitor General’s brief has to do with the fact that this requirement of a vote by the people was made way back in 1889.

But when in 1889, South Dakota said, “No, sir.

It’s not by the people.”

The President of the United States accepted that as total compliance with the same Enabling Act.

Slade Gorton:

South Dakota, Washington, Montana were admitted pursuant to the same Enabling Act.

That debate actually was all over South Dakota in its — or Dakota at its division into two separate states.

40 states in the country, 35 states rather, very clearly have neither Enabling Acts nor were required to take jurisdiction on a mandatory basis.

Yet, they were given the choice to determine under state law what jurisdiction they wish to take.

The problem with this entire argument, we would be here before you — we would not be here before you at all because of the fact that you have already decided the Enabling Act question, except for the fact that we were more considerate of the tribal desire for self-government than was any other state that dealt with Public Law 280.

Their argument is you could give the tribes that option; is what it amounts to.

We took full jurisdiction, Mr. Justice White.

We exercised full jurisdiction over everything that was covered by the Enabling Act even when the Enabling Act was in full effect.

Fee lands as I’ve said earlier in an argument that was not answered here, fee lands are not covered by the Enabling Act at all.

And over them, we took full jurisdiction on those lands in which the Indians have the greatest interest.

The ones which they own or which are held in trust for them, we deferred to them, to the tribe.

We agreed —

Except in the eight categories.

Slade Gorton:

Except in the eight categories.

We agreed to take full jurisdiction because that’s what we’re required to do.

But that statute, Section 7 also says at such time as the state legislature may determine.

That time is when the Yakima tribe agrees.

We gave them a choice, a generous choice, and we should not be penalized for it.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.