# Petition — United States v. Antelope

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 907

## Text

In the Supreme Court of the Unt iD Staten

OcToBER TERM, 1975 NOV 3 1975

Supreme Court, U, a4)

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MICHAEL RODAK, AR. CLEPK |
| ~_ martial

UNITED STATES OF AMERICA, PETITIONER
v.

GABRIEL FRANCIS ANTELOPE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RoBerT H. Bork,
Solicitor General,

RICHARD L. THORNBURGH,
Assistant Attorney General,

ANDREW L. FREY,
Deputy Solicite: General,

HARRY R. SACHSE,
Assistant to the Solicitor General,
Department of ‘ustice,
Washington, D.C. 20530,

ee _ _—————

Page
II oo soca nhanid ncatesengeieimeienninnnenions 1
Jurisdiction ce a ra asia iasacatedi 1
SD IIIT. «1, cciensseiconeeceniotnenianniiionsiomnsiones 2
I aes caestderientarensomonmisaiean = 2
EE SE eae en neice 5
Reasons for granting the writ 8

SEIT <iicsincuisehiiesaseesebicilbeihipecdeseaeitalinlia 20
RI ti Re eR Steen la
ETS ee,

CITATIONS
Cases:

Draper v. United States, 164 U.S. 240... 9,19
Head v. Hunter, 141 F. 2d 449 . ; 9
Keeble v. United States, 412 U.S. 205... 9, 12,13
Leland v. Oregon, 343 U.S. 790 16
Morton v. Mancari, 417 U.S. 5385 0. 10, 12
New York ex rel. Ray v. Martin, 326

Cn 9
United States v. Cleveland, 503 F. 2d

EE _ 12, 13,14
United States v. » MeBratney, 104 Uz S.

a 9,19
Walks on Top ° v. United ‘States, 372 F.

2d 422, certiorari denied, 389 U.S. 879.. Ne)

Constitution and statutes:
U. S. Constitution:

2% See ae ieee 10
Fifth Amendment 0. 7,8

Il

Constitution and statutes—Continued

SS Se ee ee

FF eas aciiciciesssibgseiieipneithdiltilaiacSin

RS. 2146 ..........

Act of August 15, 1953, Pub. L. 280, 67
Stat. 588 et seg., 18 U.S.C. 1162 .

Act of April 11, 1968, 82 Stat. 78 et seq. he
25 U.S.C. 1321 et seq. :
ete ae eel ee
Be ME cicsuscinisniseisteSosntiadiada 3-4, 7, 12,
18 U.S.C. 1111(b)
A NN a i a mia

18 U.S.C. 1112(b) -

18 U.S.C. 1151 rahe
18 U.S.C. 1152 | 2, 8, 9, 12, 13, 14,
18 U.S.C. 1153 _. ...8, 7, 9, 12, 18,
18 U.S.C. 5010 ARETE

Ariz. Rev. Stat. (1956):

§ 13-451

S§ 13-451 to 13-463 .

§ 13-453(B)

| EE
|” i

§ 13-462

Idaho Code (1948):

§ 18-4001 . . acl ais
§ 18-4003 (1974 Cum. Supp.) Fa
§ 18-4004 (1974 Cum. Supp.) —....
§ 18-4006 (1974 Cum. Supp.)
§ 18-4007 (1974 Cum. Supp.)

Page

17

17
14
15, 18
18

_ 16,18

18
5, 9
18, 19
14,15

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No.
UNITED STATES OF AMERICA, PETITIONER
v.

GABRIEL FRANCIS ANTELOPE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United
States of America, petitions for a writ of certiorari
to review the judgment of the United States Court
of Appeals for the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, in-
fra) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App. B,
infra) was entered on September 4, 1975. On Sep-

(1)

2

tember 28, 1975, Mr. Justice Douglas extended the
time for filing a petition for a writ of certiorari to
and including November 3, 1975. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether, in legislating with regard to criminal
offenses committed in Indian country, Congress may,
consistent with requirements of equal protection of
the law, assert federal jurisdiction only with respect
to offenses in which an Indian is involved either as
accused or as victim, leaving to the States the prose-
cution of offenses entirely involving non-Indians
(under laws that may differ from and in some par-
ticulars be more or less lenient than federal law).

2. Whether, if the preceding question is answered
in the negative, 18 U.S.C. 1152 should be construed
to assert federal jurisdiction over wholly non-Indian
offenses, thereby eliminating the possibility of dis-
parate treatment based ion the status of the

accused.
STATUTES INVOLVED

18 U.S.C. 1 “2 provides in pertinent part:

Except as otherwise expressly provided by law,
the general laws of the United States as to the
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 the Indian country.

* * * * *

18 U.S.C. 1153 provides:

Any Indian who commits against the person or
property of another Indian or other person any
of the following offenses, namely, murder, man-
slaughter, rape, carnal knowledge of any female,
not his wife, who has not attained the age of
sixteen years, assault with intent to commit rape,
incest, assault with intent to kill, assault with
a dangerous weapon, assault resulting in seri-
ous bodily injury, arson, burglary, robbery, and
larceny within the Indian country, shall be sub-
ject to the same laws and penalties as all other
persons committing any of the above offenses,
within the exclusive jurisdiction of the United
States.

As used in this section, the offenses of rape and
assault with intent to commit rape shall be de-
fined in accordance with the laws of the State
in which the offense was committed, and any
Indian who commits the offenses of rape or as-
sault with intent to commit rape upon any fe-
male Indian within the Indian country shall be
imprisoned at the discretion of the court.

As used in this section, the offenses of bur-
glary, assault with a dangerous weapon, assault
resulting in serious bodily injury, and incest
shall be defined and punished in accordance with
the laws of the State in which such offense was
committed.

18 U.S.C. 1111 provides in pertinent part:

(a) Murder is the unlawful killing of a hu-
man being with malice aforethought. Every
murder perpetrated by poison, lying in wait, or

4

any other kind of willful, deliberate, malicious,
and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any
arson, rape, burglary, or robbery; or perpe-
trated from a premeditated design unlawfully
and maliciously to effect the death of any human
being other than him who is killed, is murder in
the first degree.

Any other murder is murder in the second
degree.

Idaho Code § 18-4001 (1948) provides:

Murder defined.—Murder is the unlawful kill-
ing of a human being with malice aforethought.

Idaho Code § 18-4003 (1974 Cum. Supp.) provides:

Degrees of murder.—All murder which is
perpetrated by means of poison, or lying in wait,
torture, or by any other kind of wilful, deliber-
ate and premeditated killing is murder of the
first degree. Any murder of any peace officer of
this state or of any municipal corporation or
political subdivision thereof, when the officer is
acting in line of duty, and is known or should
be known by the perpetrator of the murder to
be an officer so acting, shall be murder in the
first degree. Any murder committed by a person
under a sentence for murder of the first or sec-
ond degree shall be murder in the first degree.
All other kinds of murder are of the second
degree. [As added by 1972, ch. 336, §$ 1, p. 844;
amended 1973, ch. 276, § 1, p. 588.]

Idaho Code § 18-4004 (1974 Cum. Supp.) provides:

Punishment for murder.—Every person guilty
of murder in the first degree shall suffer death.

5

Every person guilty of murder in the second
degree is punishable by imprisonment in the
state prison not less than ten (10) years and
the imprisonment may extend to life. [As added
by 1972, ch. 336, § 1, p. 844; amended 1973, ch.
276, § 2, p. 588.]

STATEMENT

In February of 1974, four men broke into Emma
Johnson’s house, which was within the boundaries
of the Coeur d’Alene Indian Reservation in Idaho
(within “Indian country” as defined by 18 U.S.C.
1151), and robbed her and killed her by beating her
to death (App. A, infra, pp. la-3a). Because the
crimes involved Indians (here, the accused) and oc-
curred in Indian country, they were within the ju-
risdiction of the federal district court. A federal
grand jury returned an indictment against the re-
spondents—Gabriel Antelope, Leonard Davison, and
William Davison—and co-defendant Norbert Seyler.
Count I of the indictment charged that Leonard Davi-
son and Gabriel Antelope, enrolled Coeur d’Alene In-
dians, feloniously entered the house of Emma John-
son, a non-Indian, with the purpose to commit rob-
bery. Count II charged that they forcefully took from
her a purse of money belonging to her. Count III
charged that they, with William Davison and Norbert
Seyler, also enrolled Coeur d’Alene Indians, “‘with
malice aforethought and in the perpetration of the
robbery alleged in Count Two hereof, unlawfully and

6

wilfully did kill Emma Teresa Johnson * * * by beat-
ing [her] * * * with their fists and feet.”

The defendants pleaded not guilty. Seyler was
granted immunity and testified at trial for the gov-
ernment. After a jury trial in the United States
District Court for the District of Idaho, respondents
Antelope and Leonard Davison were convicted on all
three counts, including first degree murder under
Count III. William Davison was convicted solely of
second degree murder under Count III (App. A,
infra, pp. 2a-3a). After pre-sentence investigations,
Antelope was sentenced to 15 years’ imprisonment on
each of Counts I and II and to life imprisonment on
Count III, the sentences to run consecutively. Leon-
ard Davison was sentenced to the custody of the
Attorney General under the Youth Corrections Act
(18 U.S.C. 5010) for concurrent terms of 15 years
on each of Counts I and II and for life on Count III.
William Davison was sentenced to the custody of the
Attorney General under the Youth Corrections Act
for 12 years.

The court of appeals reversed the convictions of
murder. It noted that because the victim was a non-
Indian, the accused, had they too been non-Indians,
would not have been tried in federal court under
federal law but would instead have been tried and
punished under Idaho law (App. A, infra, p. 4a).
Under Idaho law, a defendant may be convicted of
first degree murder only upon proof of premeditation
and deliberation concerning the murder (Idaho Code
§ 18-4003 (1974 Cum. Supp.) ); under the applicable

7

federal statutes (18 U.S.C. 1153 and 1111) and the
instructions to the jury in this case, however, it is
possible that respondents Antelope and Leonard Davi-
son were convicted of first degree murder on proof
of killing with malice aforethought committed in the
course of a robbery, even though the jury may not
have found premeditation.

The court of appeals concluded that “the sole basis
for the disparate treatment of appellants and non-
Indians is that of race” (App. A, infra, p. 6a; em-
phasis in original) and held that the defendants, by
being tried under federal law rather than state law,
were “put at a serious racially-based disadvantage”
(id. at 14a) that could not be justified under the
government’s wardship over Indians and that vio-
lated the equal protection concept implicit in the due
process clause of the Fifth Amendment. The court
thus held the murder provision of 18 U.S.C. 1153
unconstitutional as applied in this case. The court
cautioned that it was not holding the felony murder
provision of 18 U.S.C. 1111 unconstitutional (App.
A, infra, p. 15a), but that “Indians’ rights to due
process and equal protection under the Fifth Amend-
ment require that they not be treated worse than
similarly situated non-Indians” (id. at 14a).'

‘Since respondent William Davison was convicted only of
second degree murder, the elements of which appear to be
identical under federal and Idaho law (both 18 U.S.C. 1111
and Idaho Code §§ 18-4001, 18-4003, define second degree
murder as “the unlawful killing of a human being with malice
aforethought”), no reason appears in the decision of the court
of appeals for reversing his conviction. Nevertheless, this ap-

8

REASONS FOR GRANTING THE WRIT

The essence of the holding of the court of ap-
peals in this case is that Congress may not choose to
limit the exercise of federal jurisdiction and the ap-
plication of federal law to crimes committed within
Indian country involving an Indian either as victim
or as accused, leaving jurisdiction over wholly non-
Indian cases to the States, without running seriously
afoul of equal protection concepts embodied in the
Fifth Amendment. The court’s decision injects grave
uncertainties and threatens substantial practical dis-
ruption in the enforcement of criminal sanctions, in
both state and federal courts, for all offenses com-
mitted within Indian country whenever the victim
is a non-Indian; it does so by requiring the trial
of such offenses to be conducted under a patchwork
of the most lenient ingredients of state and federal
law. Moreover, this costly result has been reached
on the basis of what we believe to be an erroneous
premise that the instant case reflects an instance of
racial discrimination. We submit that the issues
presented by this case require resolution by this
Court.

1. 18 U.S.C. 1152 and its statutory predeces-
sors (R.S. 2144, 2145, 2146) appear on their face
to make federal law applicable to all crimes com-

parent oversight on the part of the court of appeals presents
no question of broad importance for this Court, and our peti-
tion as to this respondent is confined to the common grounds
raised as to all three respondents.

9

mitted by non-Indians within Indian country.’ But
this Court over a period of years has held that fed-
eral criminal jurisdiction under these statutes does
not extend to crimes by non-Indians against non-
Indians, even though such offenses occur within In-
dian country. New York ex rel. Ray v. Martin, 326
U.S. 496; Draper v. United States, 164 U.S. 240;
United States v. McBratney, 104 U.S. 621.° For
such crimes, the State’s interest in enforcement of
its law as to its citizens was held to overshadow
the federal interest in exercising its trust responsi-
bility over tribal Indians and their property. See
United States v. McBratney, supra, 104 U.S. at 624.
The statutory framework now set forth in 18 U.S.C.
1152 and 18 U.S.C. 1153 as interpreted by this
Court, thus applies to any of the listed crimes in
which an Indian is either perpetrator or victim, but
not to crimes wholly between non-Indians.

#18 U.S.C. 1153, the Major Crimes Act, provides federal
jurisdiction over 13 major crimes when committed by In-
dians. Other crimes committed by Indians are left to tribal
jurisdiction (see Keeble v. United States, 412 U.S. 205, 209-
212), except for federal crimes not dependent on the terri-
torial jurisdiction of the United States (see Head v. Hunter,
141 F. 2d 449 (C.A. 10); Walks on Top v. United States, 372
F. 2d 422 (C.A. 9), certiorari denied, 389 U.S. 879).

* These decisions were based primarily on the analysis of
the statutes involved, including the enabling acts of the States
involved in Draper and McBratney. The cases do not appear
to erect any constitutional barrier to an exercise of federal
jurisdiction over crimes entirely involving non-Indians, if
such crimes are committed on Indian reservations or other-
wise within Indian country, as defined by 18 U.S.C. 1151.

10

If it is accepted, as indeed this Court has held,
that the line between state and federal jurisdiction
over crimes occurring on an Indian reservation is
properly drawn on the basis of whether an Indian
is in any way involved (but see point 5, infra)
then, in our view, it follows that Congress need
not define crimes within its sphere of jurisdiction in
a fashion conforming to the definition of similar
crimes by the various States within their spheres
of jurisdiction. The court of appeals decision to the
contrary creates the anomaly that although Congress
may legislate as to crimes involving Indians, wheth-
er as perpetrator or victim, its leg‘slation is not
supreme but must be conformed to, or at least must
be no more “harsh” than, the equivalent state legis-
latiun. But the Constitution clearly provides for
congressional authority over Indian affairs,‘ and,
of course, it also provides that the law and treaties
made by Congress under the Constitution “shall be
the superme Law of the Land” (Art. VI, cl. 2).°

*For an exposition of the constitutional basis of federal
jurisdiction over Indian affairs, see Morton v. Mancari, 417
U.S. 535, 551-553.

* Conversely, by parity of reasoning, it would seem difficult,
if the court of appeals is correct, to sustain the apr'ication
by state courts (to non-Indians charged with crimes against
other non-Indians in Indian country) of those provisions of
state law that are more harsh than the federal provisions
that would apply were the accused an Indian. Thus, the de-
cision also threatens the impairment of state sovereignty in
an area that, by legislation of Congress as construed by this
Court, has been left to state jurisdiction.

11

Properly analyzed, the sole legally significant ‘‘dis-
crimination” that must be justified to support the
congressional scheme is the statutory election (ac-
tually created by decisions of this Court) to eschew
jurisdiction over wholly non-Indian offenses while
asserting federal jurisdiction and applying federal
law to all other offenses occurring in Indian country.
It is, of course, inherent in such a division of juris-
diction that the controlling substantive and procedural
law will vary in numerous particulars between the
two systems, since they are being ordained by differ-
ent sovereigns as parts of independent regulatory
structures. In light of the special, constitutionally
provided responsibilities of Congress with respect to
matters involving Indians, considered in conjunction
with the natura! interest of the States in regulating
relations among their non-Indian citizens, the historic
jurisdictional “discrimination” is entirely reasonable,
and the inherent disparities thereby created are not
subject to proper constitutional attack on equal pro-
tection grounds.

Moreover, the supposed “racial discrimination” on
which the court of appeals based its decision does not
exist. Properly analyzed, legislation affecting Indians
and Indian country is not essentially racial. The sep-
arate treatment of Indian affairs, as this Court has
noted, grows out of the former independence of the
Tribes and their conquest by the United States,
which then assumed a trust responsibility for them.
This is not a question of race, but of political rec-
ognition. A person can cease to be an Indian in the

12

eyes of the law by severing his relationship with a
federally recognized tribe. Similarly, persons who are
racially pure-blooded Indians are not so for legal
purposes if they are members of Canadian or South
American tribes or of North American tribes ter-
minated by Act of Congress. See Morton v. Mancari,
supra, 417 U.S, at 551-555 (particularly p. 553, n.
24). Any such person accused of an offense such
as that in the instant case, although racially an In-
dian, would have been tried by Idaho courts under
Idaho law.

Equally important, in the context of this case,
every defendant, whether Indian or non-Indian, tried
for murder under federal Indian country jurisdic-
tion is equally subject to the provisions of 18 U.S.C.
1111 (compare 18 U.S.C. 1152 with 18 U.S.C. 1153,
both of which, in respect to homicide, refer to fed-
eral enclave law, i.e., Section 1111, for murder). It
is only when both the accused and the victim are non-
Indians that a different result may obtain. But this
is not because of racial discrimination for or against
Indians, but on account of the recognition, in accord-
ance with decisions of this Court, that state juris-
diction, rather than federal, governs the crime.

This Court’s decision in Keeble v. United States,
412 U.S. 205, and the Ninth Circuit’s prior decision
in Uniled States v. Cleveland, 503 F.2d 1067, both
relied upon by the court below, are not to the con-
trary. In Keeble, the Court was concerned with
whether 18 U.S.C. 1153 (the Major Crimes Act),
which extends federal court jurisdiction to 13 major

13

crimes committed by Indians on Indian reservations,
permitted federal rather than tribal jurisdiction over
lesser ‘ncluded offenses and thus in appropriate cir-
cumstances required instructions as to lesser included
offenses once the federal court had assumed jurisdic-
tion over the major offense listed in the act. The
case concerned an Indian charged with killing an-
other Indian. In considering the question, the Court
pointed to the government’s concession that a non-
Indian committing the same offense on the reserva-
tion would have been entitled to the instruction (412
U.S. at 208-209). But the comparison was of crimes
both of which would have been under federal Indian
country jurisdiction. The focus in Keeble thus was
on the situation in which federal jurisdiction was be-
ing exercised in different fashion depending upon the
status of the defendant. Nothing in Keeble suggests
that, so long as federal jurisdiction is exercised in
an even-handed manner, the Constitution forces fed-
eral law to bow to state law that would apply in
cases outside federal jurisdiction.’

For much the same reasons, the Ninth Circuit’s
decision in United States v. Cleveland, 503 F.2d 1067,
does not support the result reached in the instant
ease. In Cleveland, the court held that an amend-
ment to 18 U.S.C. 1153, referring aggravated as-
saults by Indians to state law for definition of the
crime and penalty, was unconstitutional as applied
in that case because it subjected the Indian defendant

® Moreover, the Court in Keeble engaged in statutory inter-
pretation, not constitutional exegesis.

14

to more severe penalties than a non-Indian would
receive under the reference of 18 U.S.C. 1152 to fed-
eral enclave law. But the court in Cleveland was
concerned with a disparity between the treatment of
an Indian defendant and a hypothetical non-Indian
defendant both within federal Indian country juris-
diction. Whether or not Cleveland is a sound deci-
sion, it is no authority for the proposition that the
federal jurisdiction exercised in 18 U.S.C. 1152 and
18 U.S.C. 1153, when internally uniform, must also
be conformed to state law.

2. A. By removing certainty as to the applicable
substantive and procedural law in regard to the most
serious crimes whenever the victim is a non-Indian,
the decision will have an adverse effect on the already
difficult problems of rational and effective law en-
forcement within Indian country. Heretofore, all
homicides, robberies, arson, larceny, and carnal
knowledge of junveniles, involving an Indian as
accused or victim and committed in Indian coun-
try, have been defined and punished under clearly
understood federal statutes—i.e., general federal en-
clave laws that apply to all persons, regardless of
race or status, within areas of exclusive federal jur-
isdiction.’ This provides certainty in the law appli-
cable to the major offenses.

* Several other crimes, either under the Assimilative Crimes
Act, 18 U.S.C. 13, or under the second and third paragraphs
of 18 U.S.C. 1153, are referred to state law for either defi-
nition or punishment.

15

The court of appeals has now required district
judges in homicide cases in Indian country—and pre-
sumably in the other major offenses governed by
federal substantive law—not to apply the federal
statutes as written, but to compare them to the state
law in effect at the time and apply a composite rule
assuring the Indian defendant the most lenient as-
pect of each. This exercise, while perhaps super-
ficially attractive, can only lead to uncertainty in an
area demanding certainty. Here, for instance, Idaho
has recently amended its first degree murder statute
to remove the felony murder doctrine but to provide
a mandatory death sentence. According to the court
of appeals, the district court, rather than applying
18 U.S.C. 1111 as directed by 18 U.S.C. 1153, should
have afforded the Indian defendant the benefit of
that aspect of the Idaho statute that precludes a
felony murder instruction. But must the district
court reject other portions of the Idaho statute, spe-
cifically the mandatory death sentence? We assume
so. But this means that the district court is required
to apply a patchwork of legal principles reflecting no
coherent system, neither the laws enacted by Con-
gress nor the framework selected by the state legis-
lature.

Furthermore, it seems doubtful that there is any
way to confine the impact of the court of appeals’
decision within manageable bounds. Its logic, if
sound, applies not only to the substantive definition
of the offense and the potential punishment upon con-
viction, but also to the myriad of procedural matters

16

of potentially critical importance to the outcome of
a trial. Differences in liberality of discovery, bur-
den of proof on affirmative defenses, formulation of
jury instructions, and similar matters between fed-
eral and state systems would give rise to “racial dis-
criminations” equally deserving of the criticism lev-
eled here against the application of federal felony
murder principles. For example, if a State imposed
upon the defendant the burden of establishing an in-
sanity defense (e.g., Leland v. Oregon, 343 U.S. 790)
but utilized a far more liberal version of the defense
than is recognized in federal law, Indians seeking to
raise such a defense would presumably have to be
afforded the libera] state definition of insanity, while
the burden of proof would remain on the prosecution
under applicable federal principles (and, presuma-
bly, state courts trying non-Indians for crimes in
Indian country would have to permit them the boon
of the federal burden of proof requirements). Such
a result appears manifestly unsatisfactory.

The opportunities for confusion and dispute cre-
ated by the court of appeals’ decision thus appear
virtually limitless. Moreover, it will often be im-
possible for a judge to determine whether the state
or the federal statute is more “lenient’’. For instance,
the federal manslaughter statute, 18 U.S.C. 1112,
provides only two categories of manslaughter, volun-
tary and involuntary, and provides imprisonment of
not more than ten years for the former and not more
than three years and a fine of $1000 for the latter.
The Idaho statutes (§§ 18-4006, 18-4007 (1974 Cum.

17

Supp.) ) provide four categories of manslaughter and
penalties varying by category, some greater, some less
than under the federal statute. An attempt to collate
these statutes leads to nothing but confusion.

Last but by no means least, the concept of leniency,
if it creates uncertainty of this kind, cannot be
equated with “the interest of the Indians.” Reser-
vation Indians, like persons in an underprivileged
neighborhood of a city, have an interest in effective
law enforcement as well as leniency. The compli-
cated comparison in search of leniency required by
the opinion below, in our view, is not in the Indian
interest.

B. The decision below substantially affects law
enforcement in some of the major areas of Indian
country in the Nation. The Ninth Circuit includes
Arizona, where the major portion of the Navajo Res-
ervation and the entirety of the Hopi Reservation
are located, as well as the Fort Apache, San Carlos
and Papago Reservations. It also includes the sub-
stantial reservations located in the States of Wash-
ington and Montana as well as the several smaller
reservations of Nevada and Oregon.*

The problems created by the decision below are,
accordingly, not limited to Idaho. For example, under

* California is unaffected because Public Law 280 makes
state criminal law applicable within all the reservations of
that State. Act of August 15, 1953, 67 Stat. 588 et seq., 18
U.S.C. 1162; Act of April 11, 1968, 82 Stat. 78 et seq., 25
U.S.C. 1321 et seq. The Act also applies to some reservations
in Oregon, Washington and Montana.

18

the Arizona homicide statutes, Ariz. Rev. Stat. $§ 13-
451 to 13-463 (1956), the basic definitions of murder
in the first and second degrees and manslaughter are
similar to those of the federal statutes. Compare, Ariz.
Rev. Stat. $§ 13-451, 13-455, 13-456 with 18 U.S.C.
1111 and 18 U.S.C. 1112. The punishments for mur-
der in the second degree and involuntary manslaugh-
ter, however, can be more severe under Arizona law
than under federal law. Compare Ariz. Rev. Stat. § 13-
453(B) with 18 U.S.C. 1111(b) ; Ariz. Rev. Stat. § 13-
457 with 18 U.S.C. 1112(b). Since the state statutes
are more severe it might be supposed that the Ante-
lope problem could be avoided, at least in its direct
application to federal prosecutions. But the Arizona
statutes also contain detailed provisions on justifiable
homicide not found in any federal statute. Ariz. Rev.
Stat. § 13-462. In this respect the state statutes are
perhaps more forgiving of homicide. In a homicide
trial in federal court under Indian country jurisdic-
tion, must the judge incorporate these provisions
even if some of them are contrary to federal law? In
a homicide trial in state court, where the homicide
occurred on an Indian reservation, can the full pen-
alties of Arizona law be imposed? This kind of un-
certainty, inherent in the comparison of legal sys-
tems, could not have been intended by this Court in
holding crimes between non-Indians committed on
Indian reservations to be governed under state law.

3. On its face, the first paragraph of 18 U.S.C.
1152 appears to constitute an assertion of federal
jurisdiction over all offenses committed in Indian

19

country, regardless of the identity of the accused
(the second paragraph carves out certain offenses
committed by Indians, but creates no exception for
non-Indian defendants). As indicated earlier (pp. 8-9,
supra), this Court has, in cases such as McBratney
and Draper, construed Section 1152’s predecessors as
not encompassing wholly non-Indian transactions,
even though occurring within a geographical area
over which Congress could exercise exclusive juris-
diction. The effect of the holding of the court of
appeals has been to render Section 1152 unconstitu-
tional in many of its likely applications. There would,
however, be no constitutional problem of the sort
perceived by the court of appeals if the statute were
read literally to encompass all offenses occurring in
Indian country, even those in which no Indian is
involved.

Accordingly, if this Court agrees with the court
of appeals that the statute as traditionally construed
and applied creates serious constitutional problems,
we believe it becomes necessary for this Court fur-
ther to consider the question whether, in order to
preserve the constitutionality of the legislative
scheme, the applicable statutes should not be con-
strued to reflect an assertion of federal jurisdiction
over all offenses, regardless of the identity of accused
and victim, committed in Indian country.

20

CONCLUSION

For the foregoing reasons, it is respectfully sub-
mitted that the petition for a writ of certiorari should
be granted.

ROBERT H. Bork,
Solicitor General.

RICHARD L. THORNBURGH,
Assistant Attorney General.

ANDREW L. FREY,
Deputy Solicitor General.

HARRY R. SACHSE,
Assistant to the Solicitor General.

NOVEMBER 1975.

- ————— ee eS

la

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 74-2741

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
vs.
GABRIEL FRANCIS ANTELOPE, DEFENDANT-APPELLANT.

No. 74-2742

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v8.

LEONARD FRANCIS DAVISON and
WILLIAM ANDREW DAVISON,
DEFENDANTS-APPELLANTS.

| OPINION
[September 4, 1975]

Appeal from the United States District Court
District of Idaho

Before: KILKENNY, CHOY and GOODWIN,
Circuit Judges.

2a

KILKENNY, Circuit Judge:

Appellants, all enrolled members of the Coeur
d’Alene Indian tribe, appeal their convictions, after
a jury trial, of murder in violation of the Major
Crimes Act, 18 U.S.C. § 1153, as defined in 18 U.S.C.
$1111.

FACTS AND PROCEEDINGS BELOW

Count I of the indictment charges appellants Ante-
lope and Leonard Davison with the felonious entry
of the home of a non-Indian woman, situated within
the confines of the Coeur d’Alene Indian Reservation
[Indian country] in Idaho, with the intent to commit
robbery in violation of 18 U.S.C. § 1153. Count II
of the indictment charges the same appellants with
robbery of a purse containing money from the woman
within the confines of the same reservation, all in
violation of 18 U.S.C. §§ 1153 and 2111. Count III
of the indictment charges appellants Antelope, Leon-
ard Davison and William Davison, along with non-
appellant Seyler, with killing the woman in the perpe-
tration of the robbery alleged in Count II, unlaw-
fully and wilfully and with malice aforethought by
beating her, a non-Indian, with their fists and feet,
within the exterior boundaries of the aforementioned
Indian Reservation, all in violation of 18 U.S.C.
$$ 1153 and 1111.

Appellants entered pleas of not guilty. Seyler was
granted immunity and testified at trial as a govern-

3a

ment witness. The jury found Antelope and Leonard
Davison guilty on all three counts, including first
degree murder on Count III. William Davison was
convicted solely of the lesser included offense of sec-
ond degree murder on Count III.

ISSUE

Appellants’ common contention is that the murder
provision of 18 U.S.C. § 1153 is unconstitutional as
applied to them. They argue that it operated to de-
prive them of equal protection and due process under
the Fifth Amendment through an invidious racially-
based discrimination unjustified by a proper govern-
mental objective.

THE STATUTORY FRAMEWORK

Murders committed within “Indian country” fit
into and are prosecuted under one of four categories:

(1) The crime of killing an Indian by an Indian
is governed by the Major Crimes Act, 18 U.S.C.
§ 1153." Murder under that section is defined in 18
U.S.C. § 1111,’ which includes a version of the tra-
ditional felony murder definition.

! Section 1153 provides in pertinent part:

“Any Indian who commits against the person or prop-
erty of another Indian or other person any of the follow-
ing offenses, namely, murder... , shall | ~ subject to the
same laws and pentlties as all other persons committing
any of the above offenses, within the exclusive jurisc‘c-
tion of the United States.”

2 Section 1111 provides in pertinent part:

“|. . Murder is the unlawful killing of a human being
with malice aforethought. Every murder . . . committed

4a

(2) The crime of killing of an Indian by a non-
Indian is governed by the Federal Enclave Law, 18
U.S.C. § 1152,° which also refers to $1111 for the
definition of murder.

(3) The crime of killing a non-Indian by an In-
dian is also controlled by § 1153, as defined in § 1111.
This is, of course, the situation in the case before us.

(4) In obvious contrast to the above, the killing of
a non-Indian by a non-Indian in Indian country is a
matter for prosecution by the state in which the
offense occurred. New York ex rel. Ray v. Martin,
326 U.S. 496 (1946); United States v. McBratney,
104 U.S. (14 Otto) 621 (1881); United States v.
Cleveland, 503 F.2d 1067 (CA9 1974). Accordingly,
the definition of murder in such a case is determined
by reference to the situs state’s law.

In 1966 Congress amended $1153 to define and
punish in accordance with state law assault with a
dangerous weapon, incest, and assault with intent
to commit rape. See 1966 U.S. Code Cong. & Adm.
News 3653. Burglary was already so treated. The
other amendment in 1968 made definabie and punish-

in the perpetration of, or attempt to perpetrate, any
arson, rape, burglary, or robbery ... is murder in the
first degree.”” [Emphasis supplied.]

* Section 1152 provides in pertinent part:

“Except as otherwise expressly provided by law, the
general laws of the United States as to the 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 the Indian country.”

5a

able under state law is the offense of assault result-
ing in serious bodily injury. However, neither
amendment changed the definition of murder, which
was and remains subject to federal definition under
§ 1111.

If, in this case, appellants had been non-Indians
they would have been indictable only in the Idaho
state courts under the murder definition contained in
I.C.A. § 18-4003. This provisions, unlike the federal
version in § 1111, contains no felony murder provi-
sion, but instead would require for conviction proof
of premeditation and deliberation.

THE EQUAL PROTECTION CLAIM

The cornerstone of appellants’ challenge is that
they are discriminated against by reason of the
racially-based disparity of governmental burdens of
proof under 18 U.S.C. §§$ 1153, 1111, and I.C.A. § 18-
4003. Needless to say, it requires less evidence to

*1.C.A. § 18-4003 provides as follows:

“ ., All murder which is perpetrated by means of
poison, or lying in wait, torture, or by any other kind of
wilful, deliberate and premeditated killing is murder
of the first degree. Any murder of any peace officer of
this state or of any municipal corporation or political
subdivision thereof, when the officer is acting in line of
duty, and is known or should be known by the perpetrator
of the murder to be an officer so acting, shall be murder
in the first degree. Any murder committed by a person
under a sentence for murder of the first or second degree
shall be murder in the first degree. All other kinds of
murder are of the second degree.”

6a

obtain a first degree murder conviction under the
federal definition in § 1111, with the felony murder
inclusion, than is needed to obtain a murder convic-
tion under the Idaho statute lacking such a provision.
Not requiring proof of the critical mens rea element
of premeditation and deliberation, the federal prose-
cution of appellants is far less burdensome than had
they been non-Indians subject only to Idaho jurisdic-
tion.

Appellants correctly note that Congress has granted
federal courts jurisdiction over the crime of which
they are convicted solely on the basis of their race.
Their argument, however, is not against the grant
of jurisdiction itself, but rather against the accom-
panying definition of murder. They claim that, at
least in their case, the definitional difference under
the jurisdictional veil allows the government to ac-
complish something it would be prohibited from do-
ing through direct statutory means if it were to
prosecute both Indians and non-Indians for murders
of non-Indians in Indian country.

We here emphasize that the sole basis for the dis-
parate treatment of appellants and non-Indians is
that of race. Although the Fifth Amendment con-
tains no equal protection clause, it does forbid dis-
crimination that is so unjustifiable as to be violative
of due process. Jimenez v. Weinberger, 417 U.S. 628,
637 (1974); Johnson v. Robison, 415 U.S. 361, 364
(1973); Frontiero v. Richardson, 411 U.S. 677, 680
n. 5 (1973); Bolling v. Sharpe, 347 U.S. 497 (1954).
Thus, if a classification would be invalid under the

7a

Equal Protection Clause of the Fourteenth Amend-
ment, it is also inconsistent with the due process re-
quirement of the Fifth Amendment. Richardson v.
Belcher, 404 U.S. 78, 81 (1971), and Johnson v.
Robison, supra, 364 n. 4. Racial classifications are
inherently suspect, are subject to the “most rigid
scrutiny,” and bear a far heavier burden of justifi-
cation than other classifications. Hunter v. Erickson,
393 U.S. 385, 392 (1969); McLaughlin v. Florida,
379 U.S. 184, 194 (1964); Korematsu v. United
States, 323 U.S. 214, 216 (1944). They can pass
constitutional muster only if they are not invidious
or capricious and are reasonably related to a proper
governmental objective. Bolling v. Sharpe, supra, at
499, 500.

We have had occasion to review the constitution-
ality of § 1153 under equal protection and due proc-
ess challenges in a variety of circumstances, but none
involving murder or otherwise in point on appellants’
claim. In Gray v. United States, 394 F.2d 96 (CA9
1967), cert. denied 393 U.S. 985 (1968), we employed
the traditional doctrine of federal wardship or pro-
tection of Indians in upholding as constitutional a
disparity in sentencing in rape cases. However, the
difference in treatment in Gray operated to mitigate
the penalty for Indians raping non-Indians and thus
inured to the Indians’ benefit. This contrasts with
the present case in which appellants are put at a
distinct disadvantage by the statute.

Appellee places great reliance upon Henry v. United
States, 482 F.2d 114 (CA9 1970), cert. denied 400

8a

U.S. 1011 (1971), in which we held that although
the defendant Indian was erroneously charged under
§$ 1152 for his rape of two non-Indians on an Indian
reservation, rather than correctly under § 1153, he
was not prejudiced thereby and the error was harm-
less. More importantly, we rejected in Henry an
equal protection claim which at least superficially re-
sembles appellants’, namely:

“li|jf, as hypothesized by appellant, one of the
four defendants had happened to be a_ non-
Indian, both the victim and the offender would
be non-Indians, and the crime of rape would not
have been determined by reference to $§ 1152
and 2031 [federal definition of rape] ... , but
by the law of Nevada.. .”

Id. at 118. We dismissed this claim specifically be-
cause the law operated to apply identical definitions
of rape under either federal or Nevada law, thus
creating no real disparity of treatment between In-
dians and non-Indians charged with rape of non-
Indian victims. Henry followed the holding of Mull
v. United States, 402 F.2d 571 (CA9 1968), cert. de-
nied 393 U.S. 1107 (1969). We there held that when
a statute does not subject the Indian defendant to
any truly invidious racial discrimination (i.¢., when
he is not put in a genuinely disadvantageous posi-
tion), it cannot be challenged on equal protection
grounds.’ Of course, appellants’ situation is precisely

* Mull involved an assault by an Indian agent against an
Indian. After stating the above rule, we added:

[Footnote continued on page 9a]

—_ ee

9a

the opposite and serves as a critical point of distinc-
tion for our purposes. Mull, Gray and Henry all
sustained § 1153 under constitutional challenges, but
none of them involved the kind of invidious discrimi-
nation which puts an Indian defendant at a serious
procedural or substantive disadvantage. Appellants’
case is clearly one of first impression.

We believe that the rationale expressed in our re-
cent decision in United States v. Cleveland, 503 F.2d
1067 (CA9 1974), is here applicable. That case in-
volved two categories of assaults in Indian country;
Indians against Indians and Indians against non-
Indians. Regarding the latter, we said a claim of
unconstitutional disermination due to an alleged dis-
crepancy in burdens of proof for assault must fail
because state law (Arizona) would apply equally
whether the defendant be Indian or non-Indian.” Cit-
ing Henry v. United States, supra, we noted that
“Tijn a case involving offenses committed by Indians
against non-Indians, similar constitutional arguments

° [Continued]

“We deal here only with this appellant and the offense
of which and the statutes under which he was convicted.
We express no opinion as to other offenses, or as to the
effect of later amendments to the statutes as they relate
to an offense committed after their enactment.” 402 F.2d
at 573.

6 The final paragraph of 18 U.S.C. § 1153 reads:

“As used in this section, the offenses of burglary, as-
sault with a dangerous weapon, assault resulting in
serious bodily injury, and incest shall be defined and
punished in accordance with the laws of the State in
which such offense was committed.”

10a

were rejected by this Circuit for similar reasons,”
i.e., the creation of equal treatment by the 1966 and
1968 amendments to § 1153. 503 F.2d at 1071 n. 4.

However, we there took a different position when
faced with an assault by an Indian against an Indian
in the Arizona legal context. The employment in
Arizona of § 1153 for Indian assault defendants and
§ 1152 for non-Indian assauit defendants was such
that “[tjhe statutory scheme . . . [made] Indians
subject to more severe punishment than . . . non-
Indians . . . and reduce[d] the prosecutor’s burden
of proof.”" Id. at 1071 n. 5. We concluded there
was not a sufficient federal or state interest justify-
ing the distinction, one based solely on race. Accord-
ingly, we held that, in the Arizona context, the as-
sault provision violated the Indian defendants’ Fifth
Amendment due process and equal protection rights.

We there followed, without citation, the logic of
United States v. Boone, 347 F. Supp. 1031 (D. N.M.
1972), heavily relied upon by appellants. Boone held
unconstitutional that portion of $1153 referring to
state law the definition and punishment of assault
with a dangerous weapon by an Indian. Employing
reasoning identical to ours in Cleveland, the Boone
court held that the provision placed the Indian at an
unjustified, discriminatory disadvantage since under

* Comparing 18 U.S.C. § 113 (c), (d) (non-Indian defend-
ants) with A.R.S. §§ 13-249, 13-245(A) (5), (C) (Indian de-
fendants) on the severity of punishment, and 18 U.S.C. § 113
(c) with A.R.S. § 13-249 (A) on the prosecutorial burden of
proof.

lla

New Mexico law the prosecution need not prove in-
tent to do Lodily harm, which is a requirement under
§ 1152 whe. the defendant is a non-Indian.

Both Cleveland and Boone involved offenses against
Indians, so federal jurisdiction existed regardless of
the race of the defendant. Here, of course, the ques-
tion is complicated by the absence of federal juris-
diction against our comparative group, non-Indians
killing non-Indians.* Appellee argues that appellants
are, in reality, complaining of discriminatory juris-
diction, a matter beyond review. We disagree. In
United States v. Cleveland, supra, at 1071, we said:

“The effect of the 1966 and 1968 amendments
to section 1153, subjecting Indians who assault
non-Indians to state law was to create equal
treatment of non-Indians and Indian defendants
for this category of offenses, [footnote omitted]
excepting only that the Indians are prosecuted
in federal courts and non-Indian defendants are
prosecuted in the state courts.” [Emphasis sup-
plied. |
Murder, at least in the Idaho context, does not incur
the equal treatment the Congressional amendments
gave to assault, though the separate jurisdictional
element is obviously still present.
In effect, the murder provision of § 1153 brings
about the same unconstitutional disparity of burdens

* We noted in Cleveland, supra, at 1071.
“The Indians do not contend that the difference in
jurisdiction denies them either due process or equal pro-
tection.”

12a

of proof condemned in Cleveland, except that it does
not provide any justification for the discriminatory
treatment. The government should not be permitted
to accomplish through discriminatory jurisdiction
what it cannot do through discriminatory statutory
coverage when both Indian and non-Indian defend-
ants are jurisdictionally covered. To hold otherwise
would allow the government to run roughshod over
the Fifth Amendment in the name of jurisdictional
sacrosanctity, employing jurisdiction as an inviolate
tool. Congress developed the jurisdictional scheme for
crimes committed in Indian country, and in so doing
it is clearly subject to the strictures of the Fifth
Amendment.

Appellee argues that the established federal ward-
ship of Indians justifies the government’s treatment
of appellants, thus providing the requisite “proper
governmental objective.” Bolling v. Sharpe, supra, at
500. True enough, Congress has established for In-
dians a special protected status under the guardian-
ship of the federal government. Board of Commis-
sioners of Creek County, Okla. v. Seber, 318 U.S. 705
(1943); United States v. Kagama, 118 U.S. 375
(1886); Gray v. United States, supra, at 98. More-
over, the grant of national and state citizenship to
Indians did not lessen the protection of this guardian-
ship. Jn re Carmen’s Petition, 165 F. Supp. 942 (N.D.
Cal. 1958), aff'd sub nom. Dickson v. Carmen, 270
F.2d 809 (CA9 1959), cert. denied 361 U.S. 934
(1960). Beyond doubt, as was held in United States

13a

v. Thomas, 151 U.S. 577, 585 (1894), the federal
covernment has

“.. full authority to pass such laws... as may
be necessary to give to these people full protec-
tion in their persons and property, and to punish
all offenses committed against them or by them
within such reservations.”

Nevertheless, the wardship doctrine remains subject
to constitutional limitations in recognition of Indians’
inherent rights as citizens. United States v. Klamath
& Moadoe Tribes of Indians, 304 U.S. 119, 128
(1938). The Supreme Court recently spoke of this
problem in Keeble v. United States, 412 U.S. 205, 211-
212 (1973), referring to the original purpose of the
Major Crimes Act vis-a-vis Indian defendants’ mod-
ern-day constitutional rights:

“In short, Congress extended federal jurisdic-
tion to crimes committed by Indians on Indian
land out of a conviction that many Indians
would ‘be civilized a great deal sooner by being
put under [federal criminal] laws and taught to
regard life and the personal property of others.’
16 Cong. Rec. 936 (1885) (remarks of Rep.
Cutcheon). This is emphatically not to say, how-
ever, that Congress intended to deprive Indian
defendants of procedural rights guaranteed to
other defendants, or to make it easier to con-
vict an Indian than any other defendant.” [Em-
phasis supplied. |°

*The issue in Keeble was whether an Indian prosecuted
under § 1153 is entitled to a jury instruction on lesser in-
cluded offenses. The Court held that an Indian has such a

l4a

Thus, it is clear that when Indians are put at a
serious racially-based disadvantage, especially—as
here—in matters of the criminal rights of defend-
ants, such discriminatory treatment cannot be justi-
fied by the wardship concept. The Indians’ protected
status cannot be employed to make their prosecution
for murder easier than that of non-Indians under
identical circumstances. Indians’ rights to due pro-
cess and equal protection under the Fifth Amend-
ment require that they not be treated worse than sim-
ilarly situated non-Indians.

The argument is also made that the need for uni-
form federal law within the confines of Indian reser-
vations—some of which traverse state lines—provides
the requisite “proper governmental objective’ to sus-
tain the statute’s constitutionality. We reject this
argument. First of all, Congress has already seen fit
to make the definition and punishment of certain
other crimes under $1153 wholly dependent upon
state law, thus showing a legislative intent to risk
possible inconsistency within multi-state reservations
in order to secure equal treatment in the prosecution
of Indians and non-Indians. Murder was intention-
ally omitted from this egalitarian scheme. More im-
portant, we view a possible legal fortuity based on
location to be much less onerous than one based on
the inherently suspect classification of race. Consist-
ency in federal criminal law is ordinarily a highly

constitutionally guaranteed right if the facts of his case so
warrant, even though the lesser included offense is not ex-
pressly enumerated in the statute.

l5a

laudable legislative objective, but not when it operates
to deprive citizens of their right to equal treatment.
Just as in this wardship argument, supra, it is ele-
mentary that in the case of such a conflict the Fifth
Amendment takes priority.

It is our considered judgment that § 1153’s mur-
der provision is unconstitutional as applied in this
case. This is due to the nature of Idaho’s murder
statute which does not contain a felony murder pro-
vision. The constitutionality of § 1153, as applied to
murders in other states is not before us. Nor do we
reach the contention that the felony murder provision
of § 1111 is unconstitutional on its face. If the fed-
eral-state disparity elsewhere does not result in dis-
criminatory treatment to the Indian defendant (i.e.,
if they are treated no worse than similarly situated
non-Indians), a Henry-type situation would exist and
they cannot complain.

CONCLUSION

Because appellants were indicted and convicted
under a statute unconstitutional in its application to
them, their convictions of murder under Count III
are reversed. In so disposing of this appeal, we need
not consider appellant William Davison’s other as-
signments of error. Since appellants Antelope and
Leonard Davison do not challenge their convictions
of burglary and robbery under Counts I and II of the
indictment, those convictions are affirmed.

Affirmed in part and reversed in part.

16a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 74-2741

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
vs.
GABRIEL FRANCIS ANTELOPE, DEFENDANT-AP?ELLANT.

No. 74-2742

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
vs.

LEONARD FRANCIS DAVISON and
WILLIAM ANDREW DAVISON,
DEFENDANTS-APPELLANTS.

Appeal from the United States District Court
for the District of Idaho

JUDGMENT ,

This cause came on to be heard on the transcript
of the record from the United States District Court
for the District of Idaho and was duly submitted.

On consideration whereof, it is now ordered and
adjudged by this court, that the judgment of the
said district court in this cause be, and hereby is
affirmed in part and reversed in part.

Filed and entered September 4, 1975.

W wv. s. coveeswany primtine orice; 1975 S9s5e83 90

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2134%3A1. Public record. Not legal advice.