Amicus Curiae Brief — Arizona v. Flint

Supreme Court, US.

FILED

JUN 5 1989

JOSEPH F. SPANIOL, JR.

CLERK

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-603 ~-~

STATE OF ARIZONA, PETITIONER

v.

CONRAD MARION FLINT

ON PETITION FOR A WRIT OF CERTIORARI

LO THE ARIZONA COURT OF APPEALS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JOEL M. GERSHOWITZ

SARAH P. ROBINSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

eS

. hie

sev Di cy a

QUESTION PRESENTED

Whether the State of Arizona has jurisdiction, concurrent

with that of the United States under 18 U.S.C. 1152, to prose-

cute a non-Indian for a crime committed against an Indian on

the Navajo Indian Reservation in Arizona.

(I)

TABLE OF CONTENTS

Page

interest Of the United States .... 2.0.0.0... 00 ccc cscs wecens l

ee ls es pl gon ek doce au awe wee l

SN Ee ah A a ce a a 3

DB oe dS SE a a 19

TABLE OF AUTHORITIES

Cases:

Abbate v. United States, 359 U.S. 187 (1959)... 20000... 7

Application of Denetclaw, 83 Ariz. 299, 320 P.2d 697

SE sy Cn got a 5

Argentine Republic v. Amerada Hess Shipping Corp.,

RE 2 14

Arquette v. Schneckloth, 56 Wash. 2d 178, 351 P.2d 921

se Sg Me 5

Cotton Petroleum Corp. v. New Mexico, 109 S. Ct. 1698

eS aie da sch gad eld db deeb ev aeeedeesdas 5

County of Oneida v. Oneida Indian Nation, 470 U.S. 226

a ahi, 3. Ce os | b.0.4:s d.a's e060 00 dn 00d A ee.d 12

Donnelly v. United States, 228 U.S. 243 (1913) ..... 4,5, 12, 13

Draper v. United States, 164 U.S. 240 (1896) ........... 4

Jackson County v. Swayney, 319 N.C. 52, 352 S.E.2d

413, cert. denied, 484 U.S. 826 (1987) ............... 18-19

James vy. Dravo Contracting Co., 302 U.S. 134 (1937) .... 11

Kennerly v. District Court, 400 U.S. 423 (1971) 2.0.2... 8

Mayfield, In re, 141 U.S. 107 (1891) ............0...... 10

McClanahan vy. Arizona State Tax Comm’n, 411 U.S. 164

A a oa ac, Vb does o'sd ee hence. y

New Mexico vy. Mescalero Apache Tribe, 462 U.S. 324

ESOS oe A ee 10

New York v. Dibble, 62 U.S. (21 How.) 366 (1859) . 2... 6, 16

New York ex rel. Ray v. Martin, 326 U.S. 496 (1946) .... 4, 10

Oliphant vy. Suquamish Indian Tribe, 435 U.S. 191

eS 5 es a nr 6, 9-10

Ramah Navajo School Bd. v. Bureau of Revenue, 458

as Sa od oyadincasaaeuadoedaas wa 5

Rice v. Rehner, 463 U.S. 713 (1983) ............0...... 6

(Lil)

lV

Cases — Continued: Page

Seymour v. Superintendeni, 368 U.S. 351 (1962) ........ 5

State v. Burnett, 671 P.2d 1165 (Okla. Crim. App.

| ta Sak Ne) VCR oR Mire AR Arson Beek te 18

State v. Campbell, 53 Minn. 354, 55 N.W. 553 (1893) .... 5

State v. Greenwalt, 204 Mont. 196, 663 P.2d 1178

I aoa aa eee Ga hs OES Seas 18

State v. Jackson, 218 Minn. 429, 16 N.W.2d 752 (1944) .. 18

State v. Kuntz, 66 N.W.2d 531 (N.D. 1954) ......0...... 18

State v. McAlhaney, 220 N.C. 387, 17 S.E.2d 352 (1941)... 18

State v. Warner, 71 N.M. 418, 379 P.2d 66 (1963) ....... 18

State v. Youpee, 103 Mont. 86, 61 P.2d 832 (1936) ...... 18

Three Affiliated Tribes of the Fort Berthold Reservation

v. Wold Engineering, P.C.:

ee te CE fk vk cee eee eee ee 6, 7,14

a ee I Ss a ks his es oe 6,7, 14

United States v. Antelope, 430 U.S. 641 (1977) ......... 4

United States v. Chavez, 290 U.S. 357 (1933) ........... 3, 83

United States v. John, 437 U.S. 634 (1978) 2... 00.0000... 5

United States v. Kagama, 118 U.S. 375 (1886) .......... 4

United States v. McBratney, 104 U.S. 621 (1882) ....... 3, 4, 11

United States v. Pelican, 232 U.S. 442 (1914) ....0....... 5

United States v. Ramsey, 271 U.S. 467 (1926) ........... 5. 13

United States v. Wheeler, 435 U.S. 313 (1978) ..... ay 4

Washington vy. Confederated Bands & Tribes of the

Yakima Indian Nation, 439 U.S. 463 (1979) ..... 9-10, 15, 18

White Mountain Apache Tribe vy. Bracker, 448 U.S. 136

SUM aa ins ee oo Rebecca Daa DA eee aes 5

Wildcatt v. Smith, 69 N.C. App. 1, 316 S.E.2d 870

| ROSEY ES Ale "0S A 7, Se arene boy sol SPARE ae CESS Ry 19

Williams v. Lee, 358 U.S. 217 (1959)... 0. eee. . 5,9, 10

Williams v. United States, 327 U.S. 711 (1946)... 2... 5, 8,9, 10

Worcester v. Georgia, 3i U.S. (6 Pet.) 515 (1832) ....... 10

Constitution, treaty and statutes:

Tao ey Oe Ry 8, Ay ee ge in eee Aaa cee ee ee 1]

Treaty of June 1, 1868, United States-Navajo Tribe, art. I,

BES” de AS eee DG Alster ts, ta ARSE, > gen Bene

Constitution, treaty and statutes — Continued: Page

Act of June 11, 1940, ch. 323, 54 Stat. 304 1]

Act of June 30, 1948, ch. 759, 62 Stat. 1161 ee 16

Act of July 2, 1948, ch. 809, 62 Stat. 1224... Lean 15

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 . 8,9, 10, 11,

13, 14, 15, 16, 17, 18

Preamble, 67 Stat. 588 ......... ay ee eee 14

S 2, Or CAG, POA eee sews eck hanes 7 13

6 6, 67 Sie. FR wy ne care eens REY oy 14

6.9, 67 Sit, SRO io acacuietes eee 14, 16

Assimilative Crimes Act, 18 U.S.C. 13 ................ 2, 19

Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat.

Tans oh os a eee AGA ee ele 16

SS 000s) 02 AM 76 oa kc ccs eee 17

S MO), OF OM PO oS tee eee ee Leek ee 17

Indian Crimes Act of 1976, Pub. L. No. 94-297, § 2, 90

CT ih! | i a rn nP ND dre HA ey yar ye t

Maior Crimes Act, 18 U.5.C. 2599 6205 cc55204ic5a5ue 4,17

Trade and Intercourse Act of 1834, § 25, ch. 161, 4 Stat.

TER acd Cade ks au bad ant OR Te ee eee 10, 11

Rev. Sta. 6 2145 (1610 06.0 ook tesa pe we er nee 3,4

18 ASS TER og ck x ooo ok sre eee eae 11

+ bBo oeme | by Seer a Perr etrisrr enue for te 5 passim

16 US. 088 5 en a eee ee 3,5, 7, 14,17

6 UF S.C. BIG cas ines asa care tee ee ee 8, 13

iSUSL) WEN nie 13, 14

i355. SIG eo 5 ae eee 14

| Stee ee! Sree Arr ayr ee re ire 16

FS AS SA gee 6 oa ds cere sda eel eee 15

> 1B oO Ge cy) |) | ee Me SAA or At roe, 14, i7

25 0.5.0. 0220-05 ooo sil o eeee aoe 8

2S USC. ESE oie Ss eee 17

USA GA cic ee pee 8

eo Oe =. errernen er me uns rr ran ye iy. 1]

ss

) .

Jn the Supreme Court of the Cited States

OCTOBER TERM, 1988

No. 88-603

STATE OF ARIZONA. PETITIONER

Vv.

CONRAD MARION FLINT

ON PETITION FOR A UH RIT OF CERTIORARI

LO THE ARIZONA COURT OF APPEALS

BRIEF FOR THRE UNITED STATES AS AMICUS CURIAI

INTEREST OF THE UNITED STATES

This briei is filed in response to the Court’s invitation to the

Solicitor General to file a brief expressing the views of the

United States.

STATEMENT

1. On May 14, 1986, a state grand jury in Navajo County,

Arizona, returned an indictment charging respondent with six

counts of sexual conduct with a minor and two counts of com

mercial sexual exploitation of a minor. Pet. App. A2. On June

18, 1986, a different grand jury indicted respondent on four ad

ditional counts. The indictments and grand jury testimony

charged that respondent, a non-Indian school teacher employed

by Navajo County to teach Indian children, took nude

photographs and videotapes of male Indian children while they

were engaged in various sexual acts with him and with each

other. /d. at C2-C3. On August 7, 1986, the Superior Court, sua

sponte, dismissed both indictments on the ground that the State

lacked jurisdiction Over crimes committed by non-Indians

against Indians on the Navajo Reservation. /d. at C1-C11.

(1)

2. Although the State does not mention the point in its peti-

tion, the United States brought charges against respondent

under 18 U.S.C. 1152 for engaging in sexual conduct with a

minor. Section 1152 provides that, “[e]xcept as otherwise ex-

pressly provided by law, the general laws of the United States as

to punishment of offenses committed in any place within the

sole and exclusive jurisdiction of the United States, except the

District of Columbia, shall extend to Indian country.” In charg-

ing respondent under 18 U.S.C. 1152, the United States invoked

the Assimiliative Crimes Act, 18 U.S.C. 13, which incorporates

state substantive law as tederal law for offenses committed on

federal enclaves where Congress has not made the conduct pun-

ishable under a specific federal statute. The United States

charged respondent, through 18 U.S.C. 13, with violating the

same state statutes on which the state charges were brought.

Ariz. Rev. Stat. §§ 13.604.01(a), 13.1401, 13.1405 (1978 &

Supp. 1988).

Respondent pleaded guilty in federal court to one count

charging sexual conduct with the child who was the victim of the

acts charged in one of the state indictments. United States v.

Flint, No. CR 86-286 PHX EHC (D. Ariz.). Paragraph 3 of the

plea agreement stated that the United States would not prose-

cute respondent for any other incidents of sexual conduct with a

minor Occurring prior to his arrest on May 10, 1986, and that

the State would not prosecute him for any charges in the state

indictments. The district court told respondent that it had no

jurisdiction over the State and that if the State decided to prose-

cute him, that action would not provide a basis for withdrawal

of his plea to the federal charge. United States v. Flint, 10/6/86

Tr. 15-18. The court then asked respondent whether he wanted

to proceed with his plea, and respondent stated that he id (éd.

at 18). Respondent was sentenced to 20 years’ imprisonment on

the federal conviction.

3. In the meantime, the State had appealed the Superior

Court’s dismissal of the state indictments. In an opinion dated

January 19, 1988, the Arizona Court of Appeals affirmed the

dismissal, concluding that federal jurisdiction under 18 U.S.C.

1152 is exclusive (Pet. App. Al-A21).

DISCUSSION

If the Court were writing on a clean slate, it might conclude

that federal jurisdiction under Section 1152 is not exclusive and

that Arizona therefore has jurisdiction over offenses committed

by non-Indians against Indians in Indian country. The State has

a strong interest in enforcing its criminal laws against non-

Indians, and state jurisdiction would not necessarily interfere

with federal or tribal interests.

The Court, however, is not writing on a clean slate. The statu-

tory provision now codified in 18 U.S.C. 1152 was enacted at a

time when States had no jurisdiction over Indian reservations

within their borders. Fhe shared assumption of the three

Branches after that time was that federal jurisdiction under 18

U.S.C. 1152 is exclusive and that the States do not have juris-

diction over offenses by non-Indians against Indians. This

Court has so stated on several occasions and the Executive and

Legislative Branches have acted on that assumption several

times, in supporting and enacting legislation concerning state

jurisdiction on Indian reservations. Consistent with this under-

standing, the highest courts of Montana, North Dakota, and

Oklahoma, like the Arizona Court of Appeals in this case, have

held that the States are without jurisdiction over offenses com-

mitted by non-Indians against Indians in Indian country. Other

state courts have expressed a similar view. In light of this

background, and in light of the fact that respondent has already

been prosecuted in federal court on related charges, we submit

that there is no compelling reason for the Court to grant review

in this case.

1. The second paragraph of 18 U.S.C. 1152 explicitly ex-

cepts from its coverage offenses committed by one Indian

against the person or property of another Indian. Those of-

fenses are left exclusively to tribal jurisdiction, except for “ma-

jor crimes” by Indians that are subject to federal jurisdiction

under 18 U.S.C. 1153. In addition, in United States v.

McBratney, 104 U.S. 621 (1882), this Court held that crimes by

non-Indians against other non-Indians were implicitly excluded

froma Rev. Stat. § 2145 (1878 ed.), the predecessor to 18 U.S.C.

1152. The Court acknowledged that Rev. Stat. § 2145 applied to

such crimes prior to statehcod (104 U.S. at 623; see also New

York ex rel. Ray v. Martin, 326 U.S. 496, 500 & n.5 (1946)), but

it held that the Act admitting Colorado to the Union implicitly

repealed Rev. Stat. § 2145 insofar as it applied to offenses by

non-Indians against non-Indians and vested such jurisdiction in

the State (104 U.S. at 623-624). The Court stressed, however,

that McBratney presented no question “as to the punishment of

crimes committed by or against Indians” (/d. at 624). Accord

Draper v. United States, 164 U.S. 240 (1896); New York ex rel.

Ray v. Martin, supra. See also United States v. Wheeler, 435

U.S. 313, 325 n.21 (1978); United States v. Antelope, 430 U.S.

641, 643 n.2 (1977).

As a result of these exceptions, Section 1152 is confined to

“interracial” crimes —/.é., crimes committed either by or against

Indians. In Donnelly v. United States, 243 U.S. 259 (1913), the

Court rejected an attempt to narrow the scope of Section 1152

still further to exclude crimes against Indians by non-Indians.

The defendant argued that under the rationale of McBratney,

California’s admission to the Union conferred on the State the

“undivided authority to punish crimes committed upon * * * an

Indian reservation, excepting crimes committed by the Indians.”

228 U.S. at 271. The Court concluded, however, that “offenses

committed by or against Indians are not within the principle of

** * McBratney.” Ibid. The Court observed that “[t}his was in

effect held as to crimes committed by the Indians” in United

States v. Kagama, 118 U.S. 375, 383-384 (1886), which sus-

tained federal jurisdiction under the Major Crimes Act over

crimes by Indians in Indian country on the ground that the In-

dians are wards of the Nation and in need of its protection. 228

U.S. at 271 (emphasis added). The Court concluded that “{t}his

Same reason applies — perhaps @ fortiori— with respect to crimes

committed by white men against the persons or property of the

Indian tribes while occupying reservations set apart for the very

purpose of segregating them from the whites and others not of

Indian blood.” /d. at 272.!'

Under Donnelly, the United States had jurisdiction under

Section 1152 to prosecute respondent for the conduct at issue

here. The question, then, is whether Arizona has concurrent

jurisdiction to prosecute him as well. As the court of appeals

observed (Pet. App. A10-A12), it is settled that federal jurisdic-

tion under 18 U.S.C. 1152 (or 1153) over crimes committed by

Indians is exclusive. United States v. John, 437 U.S. 634, 651

(1978); Seymour v. Superintendent, 368 U.S. 351, 359 (1962);

Williams v. Lee, 358 U.S. 217, 220 n.5 (1959); Arquette v.

Schneckloth, 56 Wash. 2d 178, 351 P.2d 921 (1960); Applica-

tion of Denetclaw, 83 Ariz. 299, 320 P.2d 697 (1958); State v.

Campbell, 53 Minn. 354, 55 N.W. 553 (1893). This rule protects

the Indians from the possibility of prejudice in state courts, and

thus is an expression of the federal duty to protect the Indians.

Arizona argues that in the converse situation, involving crimes

committed against Indians, there should be a different rule, per-

mitting the State to exercise concurrent jurisdiction. Although

there is much io commend such a rule as a matter of policy, it

encounters substantial obstacles.

2. a. In deciding whether state law may be applied to the

on-reservation conduct of non-Indians in matters affecting In-

dians, this Court, in the absence of a governing Act of Con-

gress, undertakes a “ ‘particularized examination of the relevant

state, federal, and tribal interests.’ ” Cotton Petroleum Corp. v.

New Mexico, 109 S. Ct. 1698, 1707 (1989), quoting Ramah

Navajo School Bd. v. Bureau of Revenue, 458 U.S. 832, 838

(1982). The Court “examine[s] the language of the relevant

treaties and statutes in terms of both the broad policies that

underlie them and the notions of sovereignty that have de-

veloped trom historical traditions of tribal independence.”

White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

144-145 (1980); see also Cotton Petroleum, 109 S. Ct. at 1707;

' Federal convictions of non-Indians for crimes against Indians in Indian

country Were subsequently sustained in United States v. Pelican, 232 U.S. 442

(1914); United States v. Ramsey, 271 U.S. 467 (1926); United States v.

Chavez, 290 U.S. 357 (1933); and Williams v. United States, 327 U.S. 711

(1946)

6

Three Affiliated Tribes of the Fort Berthold Reservation vy.

Wold Engineering, P.C., 476 U.S. 877, 884 (1986) (Three A/f-

filiated Tribes Il). \f the Court were to weigh the respective

tribal, federal, and state interests in that general manner here, a

strong argument could be made for permitting the State to exer-

cise jurisdiction.

In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978),

the Court held that Indian tribes do not have criminal juris-

diction over non-Indians. State jurisdiction over offenses com-

mitted by non-Indians against Indians therefore would not

interfere with any tribal jurisdiction over the same subject mat-

ter. Indeed, this Court observed in Three Affiliated Tribes of

the Fort Berthold Reservation v. Wold Engineering, P.C., 467

U.S. 138, 149 (1984) (Three Affiliated Tribes I), that “[t]he exer-

cise of state jurisdiction is particularly compatible with tribal

autonomy when * * * the tribal court lack[s] jurisdiction over

the claim at the time the suit [is] instituted.” Nor would state

jurisdiction appear to have a significant impact on tribal

autonomy and self-government as to those subjects over which

the Tribe does have jurisdiction — principally its own members

and territory.

The United States of course has a duty under 18 U.S.C. 1152,

as well as Article | of the Treaty of June 1, 1868, between the

United States and the Navajo Tribe (15 Stat. 667), to protect the

Indians on the Reservation against crimes committed by non-

Indians. But recognition of concurrent state jurisdiction would

not be incompatible with that duty. in fact, it may well be that

concurrent state jurisdiction would facilitate effective law en-

forcement on the Reservation, and thereby further the federal

and tribal interests in protecting Indians and their property

against the actions of non-Indians.? Federal investigative

2 In other contexts, the Court has indicated that a State may enforce its own

laws intended for the protection of the Indians, effectively supplementing

tederal etforts. See Rice v. Rehner, 463 U.S. 713, 723 & nn.9¥, 10 (1983) (pro-

hibitions against introducing liquor into Indian country); New York v. Dibble,

62 U.S. (21 How.) 366 (1859) (exercise by state courts of equitable jurisdiction

barring non-Indians trom entering Indian lands).

agents, prosecutors, and courts often are much farther from the

scene Of an on-reservation crime than are their state and local

counterparts. This distance also imposes a burden on victims

and witnesses. In part for these reasons, the Civil Rights Com-

mission has questioned the adequacy of the federal response to

reservation ‘crimes committed by non-Indians against Indians.

U.S. Comm’n on Civil Rights, /ndian Tribes: A Continuing

Quest for Survival 175-176 (1981).

To the extent that the rationale for exclusive federal juris-

diction under 18 U.S.C. 1152 and 1153 over crimes committed

by Indians is the potential for prejudice against Indians in the

state courts and law enforcement agencies, a similar prejudice

might operate against Indian victims, and thereby in favor of

non-Indian defendants accused of committing offenses against

them. But if state authorities declined to prosecute a non-Indian

for a crime against an Indian for that (or any other) reason — or

if the non-Indian defendant was acquitted in state court —the

United States would be free to bring charges based on the same

conduct to vindicate the distinct federal interest in protecting

the Indians. Abbate v. United States, 359 U.S. 187 (1959).

Finally, the State has a legitimate interest in enforcing its

criminal laws against non-Indians, even on an Indian reserva-

tion—at least where there is no interference with federal and

tribal interests. Moreover, where jurisdiction is properly as-

sumed, a State has a legitimate interest in furnishing protection

to its Indian citizens, just as it furnishes them with other bene-

fits, such as access to state courts in civil cases. See Three Af-

filiated Tribes I; Three Affiliated Tribes 11.

b. Largely for the foregoing reasons, the Office of Legal

Counsel concluded in a 1979 opinion that, although the ques-

tion was “exceedingly difficult,” a “substantial case” could be

made that the States should not be deprived of jurisdiction over

offenses committed by non-Indians against indians. 3 Op. Off.

Legal Counsel 111, 117, 120 (1979).3 Based on OLC’s analysis,

an insertion was included in the United States Attorneys’ Man-

>The OLC opinion principally concerned jurisdiction over “victimless”

Crimes.

ual in 1980, which concluded that although the question was

“ditticult,” the States do have concurrent jurisdiction over such

ottenses. United States Attorneys’ Manual § 9-20.215 (1985).4

3. We have now reexamined the jurisdictional issue in re-

sponse to the Court’s invitation in this case. Especially in light

of considerations that were not addressed in the OLC opinion

or the United States Attorneys’ Manual, we are of the view that

the argument in favor of state jurisdiction is more difficult than

it appeared to this Department in 1979 and 1980. In particular,

we believe that Arizona’s submission in this case places too

much emphasis on general principles of preemption that apply

in the absence of a governing Act of Congress. The fact is that

Congress has passed two statutes that specifically address the

subject of jurisdiction over offenses committed by non-Indians

against Indians in Indian country: 18 U.S.C. 1152 and Public

Law 280 (Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, codified as

amended at 18 U.S.C. 1162, 25 U.S.C. 1321-1326, and 28

U.S.C. 1360). The relevant question is whether those statutes,

not general principles of preemption standing alone, permit

Arizona to exercise jurisdiction over such offenses. See Kenner-

ly v. District Court, 400 U.S. 423, 424 n.1, 427 (1971). As we ex-

plain below, the text, background, and interpretation of both

statutes indicate that they do not.

a. This Court has stated on three occasions, albeit in dicta,

that in the absence of authorization by Congress, the States do

not have jurisdiction over offenses committed by non-Indians

against Indians in Indian country. In the first of those cases,

Williams v. United States, 327 U.S. 711 (1946), a non-Indian

man was charged with having sexual intercourse with an

underage Indian girl on an Indian reservation. Although no

jurisdictional claim was raised, the Court, in describing the

statutory regime governing the reservation, stated: “While the

laws and courts of the State of Arizona may have jurisdiction

over offenses committed on [the] reservation between persons

+ By contrast, the Solicitor of the Interior concluded in 1978 that, even after

Oliphant, tederal jurisdiction over offenses by non-Indians against Indians re-

mains exclusive. 5 Indian L. Rep. H-10 (1978).

9

who are not Indians, the laws and courts of the United States,

rather than those of Arizona, have jurisdiction ever offenses

committed there, as in this case, by one who is net an Indian

against one who is an Indian” (id. at 714 (emphasis added)).

In Williams v. Lee, supra, the Court held that an Arizona

court did not have jurisdiction over a civil suit brought by a

non-Indian against an Indian arising out of a transaction oc-

curring on the Navajo Reservation, because the exercise of state

jurisdiction would undermine the authority of the tribal courts.

After discussing jurisdictionai principles governing Indian reser-

vations generally (358 U.S. at 218-221) and observing that “state

courts have been allowed to try non-Indians who committed

crimes against each other on a reservation,” the Court stated

that “if the crime was by or against an Indian, tribal jurisdiction

or that expressly conferred on other courts by Congress has re-

mained exclusive” (id. at 220 (emphasis added)). As a result, the

Court noted, “non-Indians committing crimes against Indians

are now generally tried in federal courts” (éd. at 220 n.5).

The Court made a similar comment in Washington v. Con-

federated Bands & Tribes of the Yakima Indian Nation, 439

U.S. 463 (1979), in which it upheld the manner in which Wash-

ington assumed jurisdiction over Indians and Indian territory

pursuant to Public Law 280. The Court observed that before the

State assumed jurisdiction, its law reached into Indian reserva-

tions only if it did not infringe on tribal self-government. “As a

practical matter,” the Court explained, “this * * * meant that

criminal offenses by or against Indians [had] been subject only

to federal or tribal laws * * * except where Congress * * * ‘ex-

pressly provided that State laws shall apply.’ ” 439 U.S. at

470-471 (emphasis added), quoting AfeClanahan vy. Arizona

State Tax Comm’n, 411 U.S. 164, 170-171 (1973).° See also 439

> The Court could have suggested in Yukwna Nation that state jurisdiction

over crimes by non-Indians against Indians would not interfere with the right

ot the Indians to make their own laws and be governed by them, since

Oliphant had held only ten months earlier that a Tribe cannot exercise criminal

jurisdiction Over non-Indians. Nevertheless, in Oliphant itselt, the Court ap-

peared to regard federal jurisdiction over crimes committed by non-Indians

10

U.S. at 498-499 (by virtue of Washington’s partial assumption,

“{s]tate jurisdiction is complete as to all non-Indians on reser-

vations”),

The statements in these three decisions were dicta, but they

cannot be dismissed as mere casual asides. In Williams v. United

States and Williams v. Lee, they were the product of a thorough

and considered review of jurisdictional principles in Indian

country. See 327 U.S. at 714-715 n.10; 358 U.S. at 219-222. And

in Yakima Nation, the Court’s observaticn set the stage for a

discussion of Public Law 280, which authorized the States to

assume jurjsdiction over offenses “by or against Indians” in In-

dian country —an enactment that alone suggests that the States

do not have such jurisdiction in the absence of express

authorization by Congress. See pages 13-17, infra.

b. The view expressed by this Court in the two Williams

cases and Yakima Nation finds some support in the origins and

history of Section 1152. Section 1152 was enacted as Section 25

of the Trade and Intercourse Act of 1834, ch. 161, 4 Stat. 733.

See New York ex rel. Ray v. Martin, 326 U.S. at 500 n.6. At that

time, this Court’s then-recent decision in Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832), “reflected the view that Indian

Tribes were wholly distinct nations within whose boundaries

‘the laws of [a State] can have no force.’” New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324, 331 (1983), quoting 31

U.S. (6 Pet.) at 561. As a result, the Congress that enacted what

is now 18 U.S.C. 1152 no doubt assumed that it occupied the

entire field of criminal law enforcement in Indian country (ex-

as exclusive. Thus, after discussing certain Acts of Congress, including the sec-

ond paragraph of 18 U.S.C. 1152 (see 435 U.S. at 203), the Court stated (435

U.S. at 204-205, quoting /n re Mayfield, 141 U.S. 107, 116 (1891)):

The “genera! object” of the congressional statutes was to allow Indian na-

tions criminal “jurisdiction of all controversies between Indians, or where

a member of the nation is the only party to the proceeding, and to reserve

to the courts of the United States jurisdiction of all actions to which its

Own citizens are pariies on either side.”

* * * Indian tribal courts are without inherent jurisdiction to try non-

Indians, and must depend on the Federal Government tor protection

from intruders.

1]

cept for that undertaken by the Tribes), and that the States

therefore did not have concurrent jurisdiction over reservations

within their borders.

That inference is reinforced by taken s decision to apply to

Indian country the laws of the United States that apply to

crimes committed within the “sole and exclusive jurisdiction of

the United States” (4 Stat. 733). The quoted phrase suggests that

Congress contemplated a parallel between Indian country and

the federal enclaves over which Congress may “exercise ex-

clusive Legislation” (U.S. Const. Art. 1, § 8, Cl. 17). Because

state criminal laws were inapplicable in such enclaves, the text

of Section 1152 suggests that Congress intended those laws to be

inapplicable in Indian country as well.®

Although this Court subsequently held in McBratney that a

State has jurisdiction over crimes committed by non-Indians

against non-Indians, McBratney does not support Arizona’s

argument here. The basis of the holding in McBratney was not

that 18 U.S.C. 1152 remained applicable and that the State had

concurrent jurisdiction over those crimes, as Arizona argues.

Rather, the Court held that the Act admitting Colorado to the

Union implicitly repealed 18 U.S.C. 1152 as applied to crimes

involving only non-Indians, and that the State acquired juris-

diction as a result of that repeal. 104 U.S. at 623-624. That

reasoning suggests that where, as here, Section 1152 has not

been repealed, federal jurisdiction remains exclusive.

© Only atter James v. Druvo Contracting Co., 302 U.S. 134, 147-149 (1937),

was it evident that a state legislature’s consent to the purchase of property by

the United States could be conditioned on the State’s retention of concurrent

jurisdiction. In response to Druvo, Congress in 1940 amended the definition of

the special territtonal and maritime jurisdiction of the United States, now

codified in 18 U.S.C. 7(3), to refer to “lands reserved or acquired for the use of

the United States, and under the exclusive or concurrent jurisdiction thereot”

(emphasis added). Act of June 11, 1940, ch. 323, 54 Stat. 304; see H.R. Rep.

No. 1623, 76th Cong., 3d Sess. (1940); S. Rep. No. 1708, 76th Cong., 3d Sess.

(1940). Since Dravo, concurrent state and federal! jurisdiction Over a particular

tract has been a matter for negotiation between the two sovereigns. See 40

U.S.C. 255. Public Law 280 instituted a similar regime by which jurisdiction

over crimes “by or against Indians” ts subject to adjustment among the United

States, the States, and the Tribes. See page 18, wifru.

12

This reading of McBratney also is more consistent with prin-

ciples that historically have governed jurisdiction in Indian

country. The Framers of the Constitution intended that rela-

tions between Indians and non-Indians would be regulated by

the United States, to the exclusion of the States, and Congress

has consistently acted on that premise. County of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 234-235 & n.4 (1985).

Congress reasonably could conclude that because offenses com-

mitted by non-Indians against other non-Indians in Indian

country do not directly involve relations with the Indians,

jurisdiction could be transferred to the States without under-

mining this principle of exclusive federal control. By contrast,

criminal offenses “by or against Indians” directly implicate rela-

tions between Indians and non-Indians, which traditionally

have been the subject of federal, not state, concern.

Finally, contrary to Arizona’s contention (Pet. 21-23), this

Court in Williams v. United States reasonably relied on Donnel-

/y for the proposition that Arizona did not have jurisdiction

over offenses committed by non-Indians against Indians on an

indian reservation. The Court in Donnelly rejected the conten-

tion that, under the McBratney rationale, the admission of

California to the Union gave the States undivided authority to

punish crimes, except those committed by Indians. The Court

described McBratney as holding, in effect, that the “admission

of Staies qualified the former Federal jurisdiction over Indian

country included therein by withdrawing from the United States

and conferring upon the State the control of offenses com-

mitted by white people against whites, in the absence of some

law or treaty to the contrary” (228 U.S. at 271 (emphasis

added)). The Court held, however, that crimes committed “by

or against Indians” are “not within the principle of * * *

McBrainey” (ibid.). The Court thus viewed the McBratney

“principle” as having two aspects —the repeal of federal jurisdic-

tion under what is now 18 U.S.C. 1152 and the concomitant

vesting of jurisdiction in the State —and evidently believed that

both aspects were inapplicable in Donnelly. This reading ot

Donnelly is reintorced by the fact that the Executive Branch

13

took the position in Donnelly that California did not have

jurisdiction over the offense. According to the official report of

the oral argument, counsel for the United States contended that

although McBrainey left open the question of jurisdiction over

crimes “by or against Indians,” such crimes, “being a part of the

intercourse between the two races, are fundamentally within the

scope of regulation by Congress rather than by the States” (228

U.S. at 249 (emphasis added)). The same view was expressed in

the government’s brief in Donnelly.’ Ct. United States v.

Ramsey, 271 U.S. 467, 469 (1926); United States v. Chavez, 290

U.S. 357 (1933).

4. The text and background of Public Law 280 lend some

support to the conclusion that the States are without jurisdic-

tion over offenses committed by non-Indians against Indians in

the absence of affirmative authorization by Congress.

a. Section 2 of Public Law 280 (67 Stat. 588-589) enacted 18

U.S.C. 1162, which is entitled “State jurisdiction over offenses

committed by or against Indians in Indian country” (emphasis

added). Subsection (a) of Section 1162 now provides that the

listed States (which do not include Arizona)* “shall have juris-

diction over offenses committed by or against Indians in the

areas of Indian country listed opposite the name of the State to

the same extent that such State has jurisdiction over offenses

committed elsewhere within the State, and the criminal laws of

See U.S. Br. at 14-15: “The same hostility of the local whites, which * * *

was noticed in the Aggama and other cases cited, Opposes an implication that

the creation of State governments has implied a repeal of the Federal laws as

allecting crimes by whites against Indians, or vice versa, and a delegation to

the local State governments of the control of these particular interrelations

between their citizens and the whites.” See also U.S. Br. at 6-7. The United

States similarly took the position in Antelope (see U.S. Br. at 9, 15, 17, 19-20,

26, 29 n.13, 30 n.14, 31, 41, 42-45) and Yakuna Nation (see U.S. Br. at 4, 18 &

App. B, Chart 2, Cases 11-20) that federal jurisdiction over crimes by non

Indians against Indians ts exclusive

* The States listed in 18 U.S.C. 1162(a) as originally enacted were Califor

ma, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except

the Warm Springs Reservation), and Wisconsin (except the Menominee Reser-

vation). Subsequent amendments have added Alaska (with one exception) and

deleted the exception tor the Menominee Reservation

el

14

such State shall have the same force and etiect within such In-

dian country as they have elsewhere within such State” (em-

phasis added).* The clear import of the title and text of Section

1162(a) is that it comprehensively regulates the subject identi-

fied in its title (compare Argentine Republic v. Amerada Hess

Shipping Corp., 109 S. Ct. 683, 687-688 (1989)) and constitutes

the only general authorization for the States to exercise criminal

jurisdiction over offenses committed “by or against Indians” in

Indian country. Three Affiliated Tribes I, 476 U.S. at 884. In-

deed, if the States already had jurisdiction over crimes by non-

Indians against Indians, as Arizona argues, the reference in Sec-

tion 1162(a) to offenses “against Indians” would have been

superfluous: that phrase was not necessary to confer jurisdic-

tion over offenses committed against Indians by other Indians,

because such jurisdiction was conferred by the reference to of-

fenses committed “by * * * Indians.”

The conclusion that the States listed in Section 1162(a) did

not already have jurisdiction over offenses by non-Indians

“against Indians” is reinforced by the title of Public Law 280 as

a whole: an Act “To confer jurisdiction on the States * * * with

respect to criminal offenses and civil causes of action committed

or arising on Indian reservations within such States, and for

other purposes.” 67 Stat. 588 (emphasis added). This inference

is further reinforced by Section 6 of Public Law 280, which

authorized non-listed States, such as Arizona, to amend their

constitutions or statutes to remove any legal impediments to the

“assumption” of jurisdiction; and by Section 7, which granted

the consent of the United States to any State “not having juris-

diction” to “assume” jurisdiction by legislative action. 67 Stat.

590. Cf. Three Affiliated Tribes I, 467 U.S. at 150-151. As the

court below observed (Pet. App. A1l8-A19), Arizona did not

assume jurisdiction over the Navajo Reservation under Public

Law 280, and it cannot do so now without the consent of the

Tribe. 25 U.S.C. 1321(a). The text of Public Law 280 therefore

¥ Subsection (c) of 18 U.S.C. 1162 provides that 18 U.S.C. 1152 and 1153

“shall not be applicable” within the areas of Indian country listed in subsection

(a).

15

indicates that Arizona does not have jurisdiction over offenses

committed “against Indians” by non-Indians on that Reserva-

tion.

b. The events preceding the enactment of Public Law 280

confirm this interpretation of the statutory text. The immediate

legislative history of Public Law 280 is limited (see Yakima Na-

tion, 439 U.S. at 488-493 & n.38) and focuses primarily on state

jurisdiction over the Indians themselves.'®° However, Public

Law 280 was the culmination of more than a decade of con-

sideration of extending state jurisdiction onto Indian reser-

vations, including the enactment of several measures that did so

in particular States. The relevant miaterials reveal a consistent

view on the part of Congress and the Executive Branch during

this period that, in the absence of express authorization, the

States did not have jurisdiction over offenses “by or against In-

dians.”

For example, in 1948 the House passed a bill,'!! which was

also reported to the Senate, that served as a model for Public

Law 280. The committee reports on that bill both stated that

“under the present law the States have no jurisdiction to enforce

laws designed to protect the Indians from crimes perpetrated by

or against Indians.” S. Rep. No. 1142, 80th Cong., 2d Sess. 2

(1948); H.R. Rep. No. 1506, 80th Cong., 2d Sess. 1 (1948). The

same view was expressed in the legislative history of the 1948

Acts that conferred criminal jurisdiction on New York and lowa

over crimes “by or against Indians” on reservations. '? Similarly,

‘° See generally H.R. Rep. No. 848, 83d Cong., Ist Sess. (1953); S. Rep.

No. 699, 83d Cong., Ist Sess. (1953); Hearings on H.R. 1063 Before the Sub-

comm, on Indian Affairs of the House Comm. on Interior and Insular Af-

Jairs, 83d Cong., Ist Sess. (June 29, 1953) (unpublished); Hearings on H.R.

1063 Before the House Comm. on Interior and Insular Affairs, 83d Cong., Ist

Sess. (July 15, 1953) (unpublished); Stare Legal Jurisdiction in Indian Coun-

try: Hearings on H.R. 459, H.R. 3235 and H.R. 3624 Before the Subcommi.

on Indian Affairs of the House Comm. on Interior and Insular Affairs, 82d

Cong., 2d Sess. (1952).

'' H.R. 4725, 80th Cong., Isi Sess. (1947); see 94 Cong. Rec. 2854-2855

(1948).

‘2 For New York (Act of July 2, 1948, ch. 809, 62 Stai. 1224, 25 U.S.C.

232), see H.R. Rep. No. 2355, 80th Cong., 2d Sess. 1 (1948); see also id. at 4

16

the committee reports on the 1940 Act in which Congress con-

ferred concurrent jurisdiction on the State of Kansas over

crimes “by or against Indians” (Act of June 8, 1940, ch. 276, 54

Stat. 249, 18 U.S.C. 3243) reproduce a letter from the Acting

Secretary of the Interior, which states that “the authority of the

several States over wrongful or illicit acts committed upon tribal

or restricted Indian lands extends in the main only to situations

where both the offender and the victim are white men.” H.R.

Rep. No. 1523, 76th Cong., 3d Sess. 2 (1940); H.R. Rep. No.

1999, 76th Cong., 3d Sess. 2 (1940).'3 Finally, Felix Cohen’s

Handbook of Federal Indian Law, which was published by the

Department of the Interior in 1942, stated (at 120) that “[w]ith

respect to all offenses committed by whites against Indians on

an Indian reservation, state jurisdiction yields to federal

jurisdiction, although in fact the Federal Government has

adopted state laws in providing for the punishment of such of-

fenses by the federal courts.” '* See also id. at 146.

c. This view of the limited reach of state jurisdiction is also

reflected in the legislative history of the Civil Rights Act of

1968, Pub. L. No. 90-284, 82 Stat. 73, in which Congress re-

pealed Section 7 of Public Law 280 and provided instead that

States “not having jurisdiction” over offenses committed “by or

against Indians” may “assume” such jurisdiction only with the

(letter trom Oscar L. Chapman, Under Secreiary of the Interior, to Chairman

Butler of the Senate Commitiee on Interior and Insular Affairs) (“The State

already has jurisdiction over offenses committed on Indian reservations in

cases not involving Indians or Indian property.”); see also S. Rep. No. 1489,

80th Cong., 2d Sess. (1948). For lowa (Act of June 30, 1948, ch. 759, 62 Stat.

1161), see H.R. Rep. No. 2356, 80th Cong., 2d Sess. 1 (1948).

'3 See also H.R. Rep. No. 2161, 82d Cong., 2d Sess. 4 (1952) (letter trom

Acting Assistant Secretary of the Interior White to Chairman Murdock of the

House Committee on Interior and Insular Attairs concerning a bill to conter

jurisdiction on California) (“Except for the Agua Caliente Reservation, the

United States district court is the only tribunal that has jurisdiction over of-

fenses committed on Indian reservations by or against Indians.”).

'4 The Handbook stated in a footnote (at 120 n.53, citing the injunctive

acuion in New York v. Dibble (see note 2, supra)), that “[t}here may be situa-

tions * * * in which a concurrent jurisdicuon may be exercised by the state to

protect Indians against non-Indians.”

17

consent of the Tribe concerned. §§ 401(a), 403(b), 82 Stat. 78,

79, 25 U.S.C. 1321(a), 1323(b). In a letter to the Chairman of

the House Committee addressing the tribal consent provision,

Deputy Attorney General Christopher stated that “[i]n general,

States at the present time do not have jurisdiction over criminal

offenses committed on Indian reservations by or against In-

dians,” and that Public Law 280 creates an exception to that

general rule. Rights of Members of Indian Tribes: Hearing on

H.R. 15419 and Related Bills Before the Subcomm. on Indian

Affairs of the House Comm. on Interior and Insular Affairs,

90th Cong., 2d Sess. 27 (1968). !>

5. It is not without significance that Congress’s enactment

of the statutory provisions just discussed alternated with this

Court’s pronouncements that the States are without jurisdiction

over Offenses “by or against Indians” in the absence of express

congressional authorization. Thus: (1) Congress enacted the

1940 Act conterring jurisdiction on Kansas on the understand-

ing that the State was otherwise without jurisdiction over such

offenses; (2) this Court expressed the same view in Williams v.

United States in 1946; (3) Congress then acted on that premise

when it passed the special statutes for New York and lowa in

1948 and Public Law 280 in 1953; (4) this Court reiterated the

rule of Williams v. United States in Williams v. Lee in 1959; (S)

Congress amended Public Law 280 in 1968, after receiving a

submission from the Deputy Attorney General stating that the

States are without jurisdiction over crimes committed by or

against Indians in Indian country; and (6) this Court again

reiterated that view in Yakima Nation in 1979.

Whatever once might have been the merits of Arizona’s argu-

ment for concurrent jurisdiction—and, as expiained above, the

origins of Section 1152 and the rationale of McBratney and

'> The legislative history of the 1976 amendments to the Major Crimes Act,

18 U.S.C. 1153 (see Indian Crimes Act of 1976, Pub. L. No. 94-297, § 2, 90

Stat. 585), which were designed to eliminate discrimination between Indians

charged under that Act and non-Indians charged under 18 U.S.C. 1152, also

indicates that Congress believed federal jurisdiction under Section 1152 was

exclusive. See H.R. Rep. No. 1038, 94th Cong., 2d Sess. 2 (1976); 122 Cong.

Rec. 14,290 (1976) (remarks of Rep. Hungate).

18

Donnelly cast doubt on thai position as an original matter —the

pattern of this Court’s pronouncements and Congress’s actions

since 1940 suggest that the Court need not revisit this jurisdic-

tional issue unless there are substantial reasons for doing so. We

do not believe those reasons are present in this case.

First, Public Law 280 and the 1968 amendments thereto

establish a comprehensive regime under which Arizona may

assume jurisdiction over offenses committed against Indians,

albeit with the Tribes’ consent. Because Congress chose to con-

dition the assumption of jurisdiction on the basis of positive ac-

tion by the State (see Yakima Nation, 439 U.S. at 485-495) anda

formal decision by the Tribe to bring Indians under state protec-

tion, the Court may properly hesitate before accomplishing the

same result by a judicial construction that departs from prior

understandings.

Second, the conclusion by the Arizona Court of Appeals in

this case is consistent with the holdings of the courts of North

Dakota, Montana, and Oklahoma that those States are without

jurisdiction over offenses committed by non-Indians against In-

dians in Indian country. See State v. Burnett, 671 P.2d 1165

(Okla. Crim. App. 1983); State v. Greenwalt, 204 Mont. 196,

663 P.2d 1178 (1983); State v. Kuntz, 66 N.W.2d 531 (N.D.

1954); see also State v. Youpee, 103 Mont. 86, 94, 61 P.2d 832,

835 (1936) (dictum). The Supreme Courts of New Mexico and

Minnesota have expressed the same view in dicta. See State v.

Warner, 71 N.M. 418, 421-422, 379 P.2d 66, 68-69 (1963); Sate

v. Jackson, 218 Minn. 429, 431, 16 N.W.2d 752, 754 (1944); see

also 30 Op. Ore. Att'y Gen. 11 (1960). The view this Court

adopted in the two Williams cases and Yakima Nation thus has

been widely accepted in the States.'®

‘© That acceptance, we hasten to add, has not been universal. In Svate v.

McAlhaney, 220 N.C. 387, 17 S.E.2d 352 (1941), the Supreme Court of North

Carolina held that the State had jurisdiction over an offense by a non-Indian

against an Indian on the Eastern Cherokee Reservation. However, MfcAlhaney

was decided before this Court’s decision in Williams v. United States and the

enactment of Public Law 280. Moreover, the decision in McA/haney appears

to have been largely influenced by the North Carolina Supreme Court’s view

of the distinct history of the Eastern Cherokee Indians, including its belief that

the State had jurisdiction over the Indians themselves. See Jackson County v.

19

Third, respondent has pleaded guilty in federal court to the

offense of sexual conduct with a minor based on an incident in-

volving one of the children involved in the state charges, and he

was sentenced by the federal court to 20 years’ imprisonment.

Because respondent was prosecuted under the Assimilative

Crimes Act based on a violation of Arizona law, the State’s in-

terest in assuring that its criminal laws are enforced against its

non-Indian citizens has been vindicated in this case. Moreover,

the instant prosecution is inconsistent with the recitation in the

respondent’s federal plea agreement, in which it was represented

that the State would not prosecute him on the charges then

pending against him. This is therefore not a case in which the

public interest in the full and fair enforcement of the criminal

laws has been frustrated by the absence of concurrent state

jurisdiction over respondent’s crimes.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JOEL M. GERSHOWITZ

SARAH P. ROBINSON

Altorneys

JUNE 1989

Swayney, 319 N.C. 52, 57-58, 352 S.E.2d 413, 416-417, cert. denied, 484 U.S.

826 (1987); Wildcatt v. Smith, 69 N.C. App. 1, 10-11 n.16, 316 S.E.2d 870,

877 n.16 (1984). For these reasons, we are not persuaded that the nearly

50-year-old decision in M/cAlhuney gives rise to a live conflict warranting

review by this Court.

US GOVERNMENT PRINTING OFFICE. 1989— 241 69900282