Petition — United States v. Wheeler

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In the Supreme Court of the United Stuten

OcToBER TERM, 1976 hike 2014

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UNITED STATES OF AMERICA, PETITIONER

V.

ANTHONY ROBERT WHEELER

_ PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COUKT OF APPEALS FOR

THE NINTH CIRCUIT

INDEX

Page

Cpinion below ; r 1

Jurisdiction —................... | l

Question presented 2

Constitutional and statutory provisions in-

volved , 2

Statement 3

Reasons for granting the petition 6

Conclusion 22

Appendix A la

Appendix B , 9a

Appendix C _ 10a

CITATIONS

Cases:

Abbate v. United States, 359 U.S. 187 5, 16, 17

Ashe v. Swenson, 397 U.S. 436 21

Barta v. Oglala Sioux Tribe of Pine Ridge

Reservation, 259 F.2d 553 12

Blackledge v. Perry, 417 U.S. 21 20

Colliflower v. Garland, 342 F.2d 369 14

DeCanas v. Bica, 424 U.S. 351 17

Diaz v. United States, 223 U.S. 442 20, 21

Fisher v. District Court, 424 U.S, 382 12

Grafton v. United States, 206 U.S. 333 16,17

Gray v. United States, 394 F.2d 96, cer-

tiorari denied, 393 U.S. 985 8-9

Tron Crow v. Oglala Sioux Tribes of Pine

Ridge Res., 231 F.2d 89 14

Cases—Continued Page

Jones v. Rath Packing Ci, No. 75-1053,

decided March 29, 1977 ·7 17

Keeble v. United States, 412 U.S. 205. | 13

McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 16. 56, 11, 17

Oliphant v. Schlie, 544 F. 2d 1007, peti-

tion for a writ of certiorari pending

sub nom. Oliphant v. The Squamish

Indian Tribe, et al., No. 76-5729 13, 14

ONeal v. Cheyenne River Sioux Tribe,

482 F.2d 110 18

Ortiz-Barraza v. United States, 512 F.2d

1176 14

Pennsylvania v. Nelson, 350 U.S, 497 17

Reina v. United States, 364 U.S. 507 17

Roff v. Burney, 168 U.S. 218 wn 11

Sam v. United States, 385 F.2d 213 1 9

Santa Clara Pueblo v. Martinez, No. 76

682, certiorari granted May 16, 1977 12

Settler v. Lameer, 507 F.2d 231 ) 14

Talton v. Mayes, 163 U.S. 378 11. 15

Tom v. Sutton, 583 F.2d 1101 | 14

United States v. Antelope, No. 75-661,

decided April 19, 1977 10.11, 13

United States v. Burns, 529 F.2d 114

United States v. DeCoteau, 516 F.2d 16 8

United States v. DeMarrias, 441 F.2d

1304 8

United States v. . Kagama, us US. 875. 12

United States v. Keeble, 459 F.2d 757,

reversed, 412 U.S. 205 ‘ 8

United States v. Kills Plenty, 466 F. 2d

240 8,14

United States v. Lanza, 260 U.S. 877 16

11

Cases Continued Page

United States v. Mazurie, 419 U.S. 544 11,12

United States v. Quiver, 241 U.S. 602 11, 13

United States v. United States Fidelity

& Guaranty Co., 309 U.S. 506 12

Waller v. Florida, 397 U.S. 387 17

Williams v. Lee, 358 U.S. 217 1 11,19

Worcester v. Georgia, 6 Pet. 515 11

Constitution, statutes and regulation:

United States Constitution:

Article 1, Section 8, clause 3 3 . 10

Fifth Amendment (Double Jeopardy

Clause) 2, 4, 6, 7, 10, 15, 17, 20

Act of March 3, 1817, 3 Stat. 388 12

Act of March 27, 1854, 10 Stat. 269 12

Indian Crimes Act of May 29, 1976, Pub.

L. 94-297, 90 Stat. 585 13

„Major Crimes Act of March 3, 1885, 23

Stat. 362, as amended, 18 U.S.C. 1153 2, 4, 6,

7, 8, 12

Pub. L. 98-580, 88 Stat. 1910, as amend-

ed, 25 U.S.C. (Supp. sa 174 ~ 9

18 U.S.C, 1152 ) ee 12

18 U.S.C. 2032 en 3, 6

25 U.S.C, 1302 (7) n ~

Ariz. Rev. Stat. Ann. (1956):

Section 13-252 1 4

Sections 13-821 and 13-822 21

CR RE 18

Miscellaneous:

American Indian Policy Review Commis-

sion (Final Report May 17, 1977) 9, 18, 19

IV

Miscellaneous—Continued Page

Brophy and Aberle, The Indian; Ameri-

ca’s Unfinished Business (1966) 19

Cohen, Federal Indian Law (1958 ed.) 11, 12

Kerr, Constitutional Rights, Tribal Jus-

tice, and the American Indian, 18 J.

Pub. L. 311 (1969) — Se 18

Navajo Tribal Code, Title 17 (1972):

Section 321 | 4

Section 6831 3, 4

Vollmann, Criminal Jurisdiction in In-

dian Country: Tribal Sovereignty and

Defendants’ Rights In Conflict, 22 Univ.

of Kans. L. Rev. 387 (1974) .. 19

In the Supreme Court of the United States

OcTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

.

ANTHONY ROBERT WHEELER

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, 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,

infra) is reported at 545 F.2d 1255.

The judgment of the court of appeals (App. B,

infra) was entered on December 2, 1976. A petition

(1)

for rehearing with a suggestion for rehearing en

bane was denied on March 23, 1977 (App. C, infra).

On April 13, 1977, Mr. Justice Rehnquist extended

the time for filing a petition for a writ of certiorari

to and including May 20, 1977. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause of the Fifth

Amendment bars federal prosecution of an Indian

defendant for violation of the Major Crimes Act (18

U.S.C. 1153) because of his earlier conviction in In-

dian tribal court of a lesser included offense arising

from the same acts.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

Nor shall any person be subject for the same

offense to be twice put in jeopardy of life or

limb * * *.

18 U.S.C. 1153 provides in pertinent part:

Any Indi n who commits against the person

or property of another Indian or other person

any of the following offenses, namely, murder,

manslaughter, rape, carnal knowledge of any

female, not his wife, who has not attained the

age of sixteen years, assault with intent to com-

mit rape, incest, assault with intent to kill, as-

STATEMENT

On October 16, 1974, an incident involving a young

Indian girl occurred on the Navajo Indian Reserva-

tion in Many Farms, Arizona. Respondent, a Navajo

Indian, was found intoxicated and taken into cus-

tody by an Indian policeman in connection with the

incident (R.T. 10, 13). Two days later, he pleaded

4

guilty in the Navajo Tribal Court to charges of will-

fully contributing to the delinquency of a minor and

disorderly conduct, in violation of Title 17, Sections

531 and 321, of the Navajo Tribal Code (1972) (App.

A, infra, p. 2a). Respondent was sentenced to serve

60 days at hard labor or to pay a fine of $120. (The

record does not show how the sentence was carried

out.)

On May 21, 1975, an indictment was returned in

the United States District Court for the District of

Arizona charging that respondent, on October 16,

1974, “did assault * * * with intent to rape” the

Indian girl, in violation of the Major Crimes Act,

18 U.S.C. 1153, and Ariz. Rev. Stat. Ann. § 13-252

(1956). This indictment was dismissed on grounds

not relevant here.“ A superseding indictment re-

turned on November 19, 1975, charged that on Octo-

ber 16, 1974, respondent “did carnally know a fe-

male Indian * * *, not his wife, who had not then

attained the age of sixteen years but was fifteen

years of age,” in violation of 18 U.S.C. 1153 and

2032.

Respondent moved to dismiss this indictment on

the ground that his federal prosecution was barred

by the Double Jeopardy Clause of the Fifth Amend-

' Respondent was sentenced to concurrent terms of 60 days

on the contributing to the delinquency of a minor charge and

15 days or $30 on the disorderly conduct charge.

The district court determined that a provision of 18 U.S.C.

1153 (since deleted from the statute) giving the court discre-

tion to impose imprisonment for the crimes of rape and assault

with intent to rape when committed by an Indian against a

female Indian was impermissibly vague.

j 5

ment because of his previous conviction in tribal

court of a lesser included offense arising from the

same transaction. The district court granted the

motion to dismiss.

The court of appeals affirmed. The court framed

the primary issue as “whether Indian tribal courts

and federal district courts are ‘arms of different

sovereigns’ for purposes of the Double Jeopardy

Clause” (App. A, infra, p. la). The court noted

that tribal courts “are not merely a political unit of

the Federal Government” and that the Indians are

a “separate people, with the power of regulating

their internal and social relations” (id. at 4a-5a,

quoting McClanahan v. Arizona State Tax Commis-

sion, 411 U.S. 164, 173). But the court concluded

that the Indian tribes “do not have the sovereign

status of a state” (App. A, infra, p. 5a), and thus

that “Indian tribal courts and United States district

courts are not arms of separate sovereigns” (id. at

6a). On this basis the court rejected the proposition

that the federal prosecution here was permitted by

enalogy to the “dual sovereignty” rationale adopted

by this Court in the federal-state context, see, e. g.,

Abbate v. United States, 359 U.S. 187.

The court then invoked the rule, which it viewed

as settled, that the Double Jeopardy Clause bars

prosecution of a defendant for a crime after he has

previously been convicted by the same sovereign of

a lesser included offense based upon the same acts

(App. A, infra, p. 7a). The court therefore held

that “an individual cannot be indicted in federal

court for a crime after having been tried in Indian

tribal court for a lesser included offense” (id. at 8a).

With respect to the charges here, the court deter-

mined that the offense of willfully contributing to

the delinquency of a minor (one of the tribal of-

fenses) was a lesser included offense to carnal knowl-

edge of a female under the age of 16 years (the fed-

eral charge) (id. at 7a-Sa).“

REASONS FOR GRANTING THE PETITION

1, The court of appeals’ holding in this case means

that an Indian who is convicted (or, by the same

, wl is acquitted) in tribal court of a violation

f tribal law that constitutes a lesser included of-

fense to one of the enumerated Major Crimes (18

U.S.C. 1153) may not subsequently be tried in fed-

eral district court for the greater or “inclusive” of-

fense arising from the same act. As a result of this

holding, respondent has avoided prosecution for a

major federal crime, for which he was liable to be

imprisoned for up to 15 years (18 U.S.C. 2032), by

pleading guilty to a minor offense in tribal court

and thereby incurring a relatively minor sentence.

This result is unjust and is not required by the

command of the Double Jeopardy Clause.

* Although in the court of appeals we contended that the

tribal offense was not a lesser included offense to the federal

charge, we do not present this as a question in the petition

because it is not of sufficient general importance to warrant

review by this Court.

‘While the offense with which respondent is here charged

—carr*] knowledge of a minor female—does not necessarily

7

If permitted to stand, the decision of the court of

appeals will jeopardize effective law enforcement on

Indian reservations and may necessitate extensive

resttueturing of the respective jurisdictions or pro-

cedures of tribal and federal courts with respect to

cases arising on Indian reservations. If the court

of appeals is correct, Indians who commit major

crimes such 1s murder, arson, or rape, which subject

them to federal prosecution and the possibility of

significant punishment under 18 U.S.C. 1153, would

secure immunity from such prosecution by standing

trial on a minor offense in Indian tribal court that

is a lesser-included offense of the major crime giving

rise to federal court jurisdiction. Moreover, since

federal prosecutors have no control over the institu-

tion and disposition of proceedings in tribal court,

federal authorities would be virtually powerless to

prevent potential major-crimes defendants from ac-

quiring immunity from meaningful prosecution by

undergoing tribal court trial on a petty offense.

Tribal proceedings in any event are often held so

swiftly that federal prosecutors may not even be

aware of the commission of the offense by the time

entail any use of force by the defendant, there was here at

least a prima facie case of forcible sexual assault (as is evi-

denced by the original indictment for assault with intent to

commit rape, which was dismissed on technical grounds un-

related to respondert’s culpability, see note 2, supra). If

respondent indeed committed a forcible sexual assault, the

sentence imposed by the tribal court, which respondent could

satisfy by paying a fine of $120, hardly seems just punishment.

‘

the tribal trial has been held, let alone be able to

present the matter to a grand jury and convene a

trial; here, for instance, the sexual assault occurred

on October 16 and respondent pleaded guilty to the

tribal offense on October 18 (see App. A, infra, p.

2a).

The possibility of large numbers of such occur-

rences is substantial. In addition to the present case,

there are numerous reported instances in which an

Indian defendant in federal court has been previ-

ously tried in a tribal court for a minor offense aris-

ing out of the same acts. See, ¢.g., United States v.

Keeble, 459 F.2d 757 (C. A. 8), reversed, 412 U.S.

205; United States v. Kills Plenty, 466 F.2d 240

(C. A. 8); United States v. DeCoteau, 516 F.2d 16

(C. A. 8); United States v. DeMarrias, 441 F.2d 1304

(C. A. 8); see United States v. Walking Crow, Cr.

76-3053 (D. S.D.), appeal pending C. A. 8 (No. 77-

1136).

The problem is exacerbated by the fact that Indian

tribal courts lack jurisdiction to impose significant

| punishment for criminal offenses. Indian tribal

courts may “in no event impose for conviction of any

one offense any penalty or punishment greater than

imprisonment for a term of six months or a fine of

$500, or both * * *.” 26 U.S.C, 1302 (7). Jurisdie-

tion to prosecute major felonies committed by Indi-

ans within Indian country has been given to federal

courts under 18 U.S.C. 1153. See, .., Gray v.

United States, 394 F.2d 96 (C.A. 9), certiorari de-

nied, 393 U.S. 985; Sam v. United States, 385 F.2d

213 (C. A. 10). Yet the holding of the court of ap-

peals here will effectively remove from federal courts _

the power to try offenders for major crimes com-

mitted in Indian country in the potentially numerous

cases in which a defendant has first been tried on a

minor offense in a tribal court. |

Because of the impediment it creates to effective

federal law enforcement, the decision in this case

ultimately threatens to impair the jurisdictional bal-

ance between Indian tribes and the federal govern-

ment that has evolved historically in response to the

legitimate competing interests of both of these sepa-

rate governmental entities. It is reasonable to pre-

dict that this decision will generate considerable pres-

sures upon the Congress further to circumscribe the

authority of the Indian tribes in criminal matters,

and thus to impede current efforts to strengthen the

autonomy and authority of the tribal courts to regu-

late internal Indian affairs. As the American Indian

Policy Review Commission has stated with specific

reference to this case (Final Report, p. 5-29):

»The Commission was established by Pub. L. 93-680, Jan. 2,

1975, 88 Stat. 1910, “to conduct a comprehensive review of the

historical and legal developments underlying the Indians’

unique relationship with the Federal Government in order

to determine the nature and scope of necessary revisions in the

formulation of policies and programs for the benefit of In-

dians” (25 U.S.C. (Supp. V) 174). The Commission's Report

was submitted to the Congress on May 17, 1977.

10

The implications of [the Wheeler] decision for

jurisdiction of Indian tribes and for the power

of Congress to take corrective action through

legislation are apparent. If the doctrine of dou-

ble jeopardy is applicable to judgments of tribal

courts, there seems little doubt that either the

Courts or Congress will soon strip the tribes of

authority to act in any situation which might

potentially be prosecuted in Federal court. It is

simply not tolerable that a person can plead

guilty in tribal court to a minor offense and

thereby preclude prosecution in Federa! court

for a major offense. It is essential that the sepa-

rate sovereignty of the tribes continue to be

recognized if the jurisdictional balance between

tribal and Federal courts is to be maintained.

The dilemma thus posed by the court of appeals’

decision—between serious impairment of federal

prosecutorial authority, on the one hand, and per-

haps severe curtailment of the jurisdiction of tribal

courts, on the other—is sufficiently significant to

warrant this Court’s attention. Moreover, in our

view the decision of the court of appeals is incorrect.

For the reasons explained briefly below, there is no

bar under the Double Jeopardy Clause to the federal

prosecution in this case.

2. a. The Indian tribes are treated in the United

States Constitution in pari materiae with States and

foreign nations. Article I, Section 8, clause 3. While

recognizing that the Indian tribes are no longer sov-

ereign nations—they are “once-sovereign political

communities” (United States v. Antelope, No. 75-661.

11

decided April 19, 1977, slip op. 5) —this Court has

repeatedly emphasized that they possess a “unique

status as ‘a separate people’ with their own

political institutions” (ibid.), that they “are unique

aggregations possessing attributes of sovereignty

over both their members and their territory” (United

States v. Mazurie, 419 U.S. 544, 557), and that the

statutes and treaties defining their relations with

other governments must be read against the “back-

drop” of their former sovereignty as nations (Mc-

Clanahan v. Arizona State Tax Commission, supra,

411 U.S. at 172).

As a part of the Indian tribes’ “unique status,”

this Court has recognized that in the absence of an

explicit withdrawal of jurisdiction by Congress, the

power to try and punish criminal behavior by Indi-

ans within Indian country inheres in tribal courts,

gress but is a residual attribute of tribal sovereignty

that often has been expressly recognized by treaty.

Worcester v. Georgia, 6 Pet. 515; Talton v. Mayes,

163 U.S. 376; United States v. Quiver, 241 U.S. 602,

605; see Cohen, Federal Indian Law 395 (1958 ed.).

* The decisions of this Court have consistently emphasized

that “the right of reservation Indians to make their own laws

and be ruled by them” (Williams v. Lee, 368 U.S. 217, 220)

is an unextinguished residuum of the tribes’ ancient sover-

12

Congress also has acknowledged the residual sov-

ereignty of the tribes. Almost from the first federal

assertion of statutory jurisdiction, Congress provided

that “nothing in the * * * [statute] * * * shall be

so construed as to affect any treaty now in force

between the United States and any Indian nation,

or to extend to any offence committed by one Indian

against another, within any Indian territory.” Act

of March 3, 1817, 3 Stat. 383; see Act of March 27,

1854, 10 Stat. 269, 270; 18 U.S.C. 1152. Even the

Major Crimes Act (Act of March 3, 1885, 23 Stat.

362, 385), which made it a federal crime for an

Indian to commit any of seven named major offenses

Cohen, Federal Indian Law, supra, at 414. Cf. Santa Clara

Pueblo v. Martinez, No. 76-682, certiorari granted May 16,

1977. Similarly, as with other peoples who possess “the power

of regulating their internal and social relations” (United

States v. Kagama, 118 U.S. 375, 382), the tribes possess broad

authority to grant marriages and divorces (United States v.

Quiver, supra) and to provide for adoptions and guardian-

ships. Fisher v. District Court, 424 U.S. 382. Furthermore,

unless Congress has provided otherwise, the tribes are immune

from suit in state or federal court, protected in much the

same way as the Eleventh Amendment protects the States or

the principle of sovereign immunity protects the United States.

United States v. United States Fidelity & Guaranty Co., 309

U.S. 506, 512. Finally, the tribes possess inherent authority

Stour Tribe of Pine Ridge Reser-

2

;

:

2

2

a

.

8

f

f

5

United States v. Mazurie, 419 U.S. 544 (upholding, as to non-

Indians, a tribal ordinance requiring a license to sell liquor in

Indian country)

13

against another Indian on an Indian reservation, is

properly viewed only as “a carefully limited intru-

sion of federal power into the otherwise exclusive ju-

risdiction of the Indian tribes to punish Indians for

crimes committed on Indian land.” See Keeble v.

United States, 412 U.S. 205, 209, quoted in United

States v. Antelope, supra, slip op. 1-2 n. 1." é‘

Accordingly, the Navajo Tribal Court, in which

respondent was convicted, functions not as an instru-

mentality of the federal government but as an insti-

tution whose authority flows from the residual sov-

ereignty of the tribes as a separate people.“ With-

The Act presently includes 14 enumerated offenses. See

Indian Crimes Act of May 29, 1976, Pub. L. 94-297, 90 Stat.

* After enactment of the Major Crimes Act, the Court in

United States v. Quiver, supra, reaffirmed the principle that

14

in its sphere of authority, the tribal court’s jurisdic-

tion is exclusive. The powers exercised by tribal au-

thorities over tribal Indians within a reservation thus

more closely resemble the powers customarily exer-

cised by a State than those of the federal government.

(over non-Indians] upon the tribe. The tribe, before it was

conquered, had jurisdiction, as any independent nation does.

The question * * * is, did Congress (or a treaty) take that

jurisdiction away” (544 F.2d at 1009 n. 1).

The Ninth Circuit's statements in Oliphant concerning In-

dian sovereignty are inconsistent with its view in this case

that “Indian tribal courts and United States district courts

are not arms of separate sovereigns” (App. A, infra, p. 6a).

Indeed, the Ninth Circuit has been inconsistent in other cases

as well on the question whether, or for what purposes, the

tribal courts are agents of the same sovereign as the federal

district courts. In Tom v. Sutton, 688 F.2d 1101, the court

rejected a claim that either the Sixth or the Fourteenth

Amendment entitles defendants in tribal criminal proceed-

ings to appointed counsel. Citing Talton v. Mayes, supra, and

other cases, the court stated (683 F.2d at 1108): “The ra-

tionale underlying these cases is that the Indian tribes are

quasi-sovereign nations. * * * Under their sovereign status,

the Indian tribes are vested with the inherent power to create

and administer a criminal justice system.” The court added

(533 F.2d at 1103 m. 1) that the Indian Citizenship Act (8

U.S.C. 1401) “did not destroy the existence or sovereignty

of the Indian tribes or their jurisdiction over their members.”

See also Settler v. Lameer, 607 F.2d 281 (C.A. 9); Ortiz

Barraza v. United States, 612 F.2d 1176 (C. A. 9). But see

Colliflower v. Garland, 342 F.2d 369 (C. A. 9).

The Eighth Circuit in United States v. Kills Plenty, supra,

466 F.2d at 243, when similarly confronted with “the trouble-

some contention that tribal courts and United States District

Courts derive their adjudicatory powers from the same sov-

ereign,” stated (in dictum) that “it is our view that the Tribal

Courts are not arms of the same sovereign as the United States

District Court” (466 F.2d at 243 and n. 3). See yon Crow v.

Oglala Sioux Tribe of Pine Ridge Res., 231 F.2d 89 (C.A. 8).

The court of appeals said, however (App. A, infra,

pp. 5a-6a), that Indian tribes cannot meaningfully be

regarded as separate political entities because the

federal government has complete power over Indian

affairs and, in particular, “has complete, plenary

control over the criminal jurisdiction of tribal courts.“

But this reasoning is beside the point. As this Court

stated in Talton v. Mayes, supra, 163 U.S. at 384:

“(T]he existence of the right in Congress to regulate

the manner in which the local powers of the Cherokee

nation shall be exercised does not render such local

powers Federal powers arising from and created by

the Constitution of the United States.”

In Talton, the Court held that the Fifth Amend-

ment does not apply to the Indian tribes, because the

powers that they exercise are not “federal powers“

but are inherent in their status as quasi-sovereigns:

“It follows that as the powers of local self govern-

ment * * * existed prior to the Constitution, they are

not operated upon by the Fifth Amendment

(163 U.S. at 384). The court of appeals’ analysis

in this case is fundamentally inconsistent with the

analysis in Talton. Tribal courts cannot at the same

time be so autonomous that the Fifth Amendment

does not apply to tribal judicial proceedings, yet so

identified with the federal government that a tribal

prosecution is viewed as nothing more than prosecu-

tion by an arm of the federal sovereign. .

b. Since tribal prosecutions are not prosecutions

by an arm of the federal sovereign, the Double

Jeopardy Clause should not apply to bar prosecution

16

in federal court after prosecution in a tribal court

tor a lesser included offense arising out of the same

acts. The tribes and the federal government, “deriv-

ing power from separate sources,” have each sep-

arately determined “what shall be an offense against

its peace and dignity” (United States v. Lanza, 260

U.S. 377, 283). Here, for example, respondent’s con-

duct violated a tribal ordinance designed to enforce

the tribe’s interest in maintaining the internal peace

and order of the Indian community, and respondent

therefore properly was subject to punishment by the

tribal court. At the same time his conduct also may

have constituted a major federal crime. Each gov-

ernmental unit—federal and tribal—should be en-

titled to give effect to its separate peace-keeping

interest.

In many respects, the consequences outlined above

(pp. 6-10) of the court of appeals’ holding to the

contrary are analggous to the “undesirable conse-

quences” that persuaded this Court in Abbate v.

United States, supra, 359 U.S. at 195, to reject a

plea that it overrule its holding in Lanza that a pre-

vious conviction by a state does not operate as a con-

stitutional bar to federal prosecution for the same

acts. In both contexts, federal law enforcement

The court of appeals stated that if “forced to choose

a relevant analogy” (App. A, infra, ba) by

the status of tribal courts, it would select not state courts, but

territorial courts, which were described by this in

Grafton v. United States, 206 U.S. 333, as “civil

proceeding under the authority of the United States” (App. A,

infra, pp. Sa-6a). But, unlike tribal courts generally, the

17

would “necessarily be hindered” (359 U.S. at 195)

i

&

f

8

a

2

4

F

i

mere existence of the federal government’s authority

to preempt tribal court criminal jurisdiction does not

mean that the federal government is constitutionally

required to exercise that authority in order to insure

that its own law enforcement efforts are not hindered.

Displacement of Indian tribal court jurisdiction not

only would “bring about a marked change in the dis-

tribution of powers to administer criminal justice”

(359 U.S. at 195) between the Indian and federal

courts, but also would be at odds with efforts of the

federal government to foster tribal self-government.

There currently are tribal courts operating on ap-

proximately 71 reservations,” handling tens of thou-

sands of cases per year.” These courts generally are

viewed as central to the preservation of Indian cul-

ture and political identity. See, e. g., ONeal v. Chey-

enne River Sioux Tribe, 482 F.2d 1140, 1144-1145

(C. A. 8).

The Final Report of the American Indian Poliey

Review Commission (p. 5-42) includes a finding

This figure is obtained from statistics compiled by the De-

partment of Interior as of March 18, 1977. In addition to the

“tribal courts,” there are 16 “traditional” or semi-religious

courts, possessing no written ordinances, and 32 Courts of

Indian Offenses (“C.F.R.” courts) established by the Depart-

ment of Interior for reservations that possess no judicial

institutions (see 25 C. F. R. 11.1 et seg.) See Kerr, Constitu-

tional Rights, Tribal Justice, and the American Indian, 18 J.

Pub. L. 311, 321-322 (1969).

Tribal courts, together with the courts listed in note 12,

supra, handle an estimated 80,000 or more cases per year.

American Indian Policy Review Commission (Final Report,

p. 5-36).

low, however, seriously threatens any efforts to en-

hance the capability and authority of the tribal

courts. As one commentator has stated: “If, ulti-

mately, tribal criminal trials were to become pro-

tective mechanisms for potential Major Crimes Act

defendants, a political resolution of the situation in

Congress would probably result, and that resolution

would undoubtedly see a further cutback in tribal

criminal jurisdiction.” Vollmann, Criminal Jurisdic-

tion in Indian Country: Tribal Sovereignty and De-

fendants’ Rights in Conflict, 22 Univ. of Kans. L.

Rev. 387, 406 (1974); see Final Report, supra, at

p. 5-29.

3. We submit alternatively that, even if the federal

and the tribal courts are viewed as “arms” of the

same sovereign, the Double Jeopardy Clause does not

bar the federal prosecution in this case. The decision

of the court of appeals rests on the assumption that

The Navajo Tribal Court, in which respondent here was

convicted, is one of the most highly developed of the tribal

judicial systems, possessing, for example, its own complete

legal code applicable to the more than 100,000 tribal members.

See Williams v. Lee, supra, 358 U.S. at 222; Brophy and

Aberle, The Indian: America’s Unfinished Business 59 (1966).

'

— —

‘ —

the Double Jeopardy Clause always bars prosecution

of a defendant for a crime after a previous convic-

tion by the same sovereign of a lesser included of-

fense based on the same acts. But, as we argued in

our brief in Jeffers v. United States, No. 75-1805,

argued March 21, 1977 (Br. 13-15, 39-47), it does

not violate the Double Jeopardy Clause to prosecute

a defendant for a greater offense after having suc-

cessfully prosecuted him on a lesser included offense,

so long as he was not in jeopardy on the greater of-

fense at the first trial and is not placed in jeopardy

again on the lesser included offense at the second

trial. See Diaz v. United States, 223 U.S. 442, 449.

When such a defendant is tried on the lesser offense,

he is not in jeopardy of conviction of and punishment

for the greater. And if he is convicted of the lesser

(see Br. 41-42), in a subsequent prosecution for the

greater the defendant can be fully protected from

being “twice put in jeopardy” for the lesser offense

by measures less drastic than barring the second

trial altogether (see Br. 47 n. 27).”

In this case, respondent was not put in jeopardy

of conviction of carnal knowledge in the tribal court.

His federal trial would therefore be the first jeopardy

We are furnishing a copy of our brief in Jeffers to counsel

for petitioner.

“If the prosecution has unfairly and unreasonably sub-

jected a defendant to a series of prosecutions for related

offenses of escalating gravity, the defendant would have a

remedy under the Due Process Clause. Cf. Blackledge v. Perry,

417 US. 21.

21

of conviction of carnal knowledge to which he would

be exposed. Moreover, respondent would not again be

in jeopardy for the tribal offense during his federal

trial, since the federal court has no jurisdiction over

offenses listed in the Navajo Tribal Code. Accord-

ingly, prosecution in federal court following the con-

viction in tribal court would not place respondent

twice in jeopardy for either offense. Respondent

should therefore not be insulated from the federal

proseClution. Cf. Ashe v. Swenson, 397 U.S. 436, 453

n. 7 (concurring opinion of Mr. Justice Brennan).

There is only one way in which a charge of contributing

to the delinquency of a minor might be considered in federal

court despite that court’s lack of independent jurisdiction over

the offense—i.e., if the defendant requested such a charge

upon the authority of Keeble v. United States, supra. (The

lesser-included offense would presumably have to be derived

from state rather than tribal law; here, Arizona has a statute

proscribing acts contributing to the delinquency of a minor

(Ariz. Rev. Stats. Ann. §§ 13-821, 13-822), although the ele-

ments are slightly different from those of the tribal offense).

charge, he may easily avoid the risk of conviction on the de-

linquency offense by not requesting that it be charged. And

even if a verdict were returned on the lesser offense, no judg-

ment could be entered or punishment administered upon such

a verdict if the same sovereign had already tried the defend-

ant for the offense. See Diaz v. United States, supra, U.S.

at 449.

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wan H. McCresr, IX.

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

STEPHEN IL. URBANCZYK,

Assistant to the Solicitor General.

JeROME M. Fert,

Rooer A. PAULEY,

MICHASL W. FARRELL,

Attorneys.

May 1977.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 76-1509

[Filed Dec. 2, 1976, U. S. Court of Appeals,

Emil E. Melfi, Jr., Clerk

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v8.

ANTHONY ROBERT WHEELER, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Arizona

Before: GoopwWIN and SNEED, Circuit Judges, and

East,* District Judge.

OPINION

SNeep, Circuit Judge:

This case presents the question whether Indian

tribal courts and federal district courts are “arms

of different sovereigns” for purposes of the Double

Jeopardy Clause. We hold that they are not arms

* Honorable William G. East, Senior United States District

Judge for the District of Oregon, sitting by designation.

While the court in United States v. La Plant, 156 F. Supp.

660, 662 (D.C. Mont. 1957) granted defendant's motion to

of separate sovereigns and, therefore, that an indi-

vidual cannot be tried for the same offense before

both an Indian tribal court and court of the United

States Government. Furthermore, we hold that the

guarantee against double jeopardy has been violated

in this case.

The defendant, a Navajo Indian, plead guilty in

Navajo tribal court on October 18, 1974 to charges

of contributing to the delinquency of a minor and

disorderly conduct,’ the charges growing out of an

incident that had occurred on Indian territory two

days earlier. Over a year later the defendant was

indicted in federal court for carnal knowledge of a

female Indian under the age of sixteen years.“ There

is no dispute that the federal charge grew out of the

same incident and the same actions of the defendant

as the “contributing to the delinquency of a minor”

charge before the Navajo tribal court. Before trial,

dismiss on the ground that defendants would be placed in

double jeopardy by reason of conviction for the same offense

in the Blackfeet Tribal Court,” the Government had conceded

the issue in its brief.

See also U. S. Der’t or THe INTERIOR, FeperaL INDIAN LAW

447-448 (1968), asseverating that “the punishment of an

Indian under ['the local law of the tribe'] must be deemed

a bar to further prosecution under any applicable Federal

laws, even though the offense be one against a non-Indian,”

but backing this conclusion neither with citations nor with

discussion.

* Title 17, section 821 of the Navajo Tribal Code.

* Title 17, section 3561 of the Navajo Tribal Code.

*18 U.S.C. 68 1158, 2082 (1970).

the district court judge dismissed the indictment “on

the basis that the defendant [had] already once been

placed in jeopardy for the same offense.” We affirm.

I.

The Fifth Amendment provides that no person

shall be subject for the same offense to be twice put

in jeopardy of life or limb.“ U.S. Const. amend. V.

However, the Supreme Court held early in its history

that the Double Jeopardy Clause does not prevent a

federal court from trying a person for the same

U.S. (14 How.) 13 (1852). As explained by the

Court:

da

Id. at 20. The Court has construed its “dual sover-

eignty” rationale narrowly and has never applied it

outside of the federal court or state court context.“

The Court has held that the double jeopardy guaran-

tee proscribes prosecution in United States territorial

court once the defendant has been tried for the same

crime in federal military court, see Grafton v. United

States, 206 U.S. 333 (1907), and also proscribes

parallel prosecutions in state and municipal courts,

see Waller v. Florida, 397 U.S. 387 (1970). Accord-

ing to the Court, these latter cases involve prosecu-

tions before two courts of a single sovereign.

In the instant case, we are faced by a dual trial

situation that does not fit neatly into either the

“single sovereign” or “dual sovereign” categories.

Indian tribal courts are not merely a political unit

of the Federal Government, such as federal district

courts, military tribunals, ete. Indian tribes do main-

tain a “semi-independent position” within the _ bor-

ders of the United States. See McClanahan v. Ari-

zona State Tax Comm'n, 411 U.S. 164, 172-173

(1973), quoting United States v. Kagama, 118 U.S.

375, 381-382 (1886). But, at the same time, they

As the Supreme Court recognized in United States v.

Kagama, 118 U.S. 375 (1886), there are only two sovereign

entities within the United States: the federal government

and the states. “Indians are within the geographical limits

of the United States. The soil and the people within these

limits are under the political control of the Government of

the United States, or of the States of the Union. There exists

within the broad domain of sovereignty but these two.” 118

5a

clearly do not have the sovereign status of a state.

Nor is their “semi-independence” like that accorded

the Commonwealth of Puerto Rico. As emphasized

in McClanahan, supra, Indian tribes enjoy semi-

independent status “not as States, not as Nations,

not as possessed of the full attributes of sovereignty,

but as a separate people, with the power of regulat-

ing their internal and social relations, and thus far

not brought under the laws of the Union or of the

State within whose limits they reside.” 411 U.S. at

173, quoting Kagama, supra, 118 U.S. at 381-382

(emphasis added). The federal government has com-

plete, plenary control over the criminal jurisdiction

of tribal courts. See Winton v. Amos, 255 U.S. 373

(1921); Lone Wolf v. Hitchcock, 187 U.S. 5538

(1903). It possesses no such control with respect to

the states.

It follows that Moore v. Illinois, supra and its

progeny are not applicable to the instant case. The

double jeopardy guarantee applies. If forced to choose

a relevant analogy by which to guide our decision in

this case from amongst the courts considered by the

Supreme Court in the double jeopardy-“dual sover-

Congress, in 1962, entered into a “compact” with “the

people of Puerto Rico,” giving Puerto Rico “Commonwealth”

status and “the degree of autonomy and independence normally

associated with States of the Union.” Examining Bd. of

Engers, Architects and Surveyors v. Flores de Otero, 96 8.

Ct. 2264, 2277-2279 (1976). As the Court in Flores de Otero

noted, Puerto Rico's status is sui generis; “Puerto Rico

occupies a relationship to the United States that has no

parallel in our history.” Id. at 2278.

6a

eignty” context, we would select territorial courts,

described in Grafton v. United States, supra, as

“civil courtſs] proceeding under the authority of the

United States”; as already indicated, territorial

courts are prevented by reason of double jeopardy

from trying an individual for the same offense for

which he already has been convicted by a United

States military court. We find support for our con-

clusion that the double jeopardy guarantee applies

here in Colliflower v. Garland, 342 F.2d 369 (9th

Cir. 1965). There, this court reviewed the history

of a tribal court system substantially similar to the

history of the Navajo courts and concluded that

[ijn spite of the theory that for some purposes

an Indian tribe is an independent sovereignty,

we think that, in the light of their history, it is

pure fiction to say that the Indian courts func-

tioning in the Fort Belknap Indian community

are not in part, at least, arms of the federal

government.

Id. at 378-379.

In summary, Indian tribal courts and United

States district courts are not arms of separate sov-

ereigns. Indian tribes are not states. Thus, the de-

fendant in the instant case could not be tried in fed-

eral district court for the same offense that he was

previously convicted of in Navajo tribal court with-

out violating the Double Jeopardy Clause of the Fifth

Amendment.

7a

II.

The Government argues that, even assuming the

double jeopardy guarantee applies in the case before

us, the defendant is not being tried for the same of-

fense in federal court as he was convicted of in tribal

court. We disagree.

A defendant does not have to be charged with the

exact same offense before both courts in order for

double jeopardy to exist. The double jeopardy guar-

antee is also violated where one of the charges is a

“lesser included offense” of the other—where every

violation of one charge necessarily constitutes a vio-

lation of the other. See Blockburger v. United States,

284 U.S. 299, 304 (1932) ; Gavieres v. United States,

220 U.S. 338 (1911); Henry v. United States, 215

F.2d 639, 641 (9th Cir. 1954).

In the instant case, “contributing to the delin-

quency of a minor” (one of the two tribal court

charges) is a lesser included offense to “carnal know!-

edge of a female under the age of sixteen years” (the

federal charge). The two charges grew out of the

same actions of the defendant. And the evidenc

necessary to convict the defendant of carnal knowl-

edge would have been sufficient to convict the de-

fendant of contributing to the delinquency of a minor.

We find support for this holding in the state cases

of State v. Harvey, 402 P.2d 17, 19 (Ariz. 1965) and

People v. Greer, 184 P.2d 512, 517 (Cal. 1947), both

holding that contributing to the delinquency of a

minor is a lesser included offense to statutory rape."

Therefore, we hold that an individual cannot be

indicted in federal court for a crime after having

been tried in Indian tribal court for a lesser included

offense.

AFFIRMED.

* We find no evidence of a significant difference in the sub-

stance of the state offenses dealt with in Harvey and Greer and

the offenses involved here that would warrant distinguishing

those two cases.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 76-1509

DC# CR 75-550 WPC

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

ANTHONY ROBERT WHEELER, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Arizona (Phoenix)

JUDGMENT

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the District of Arizona (Phoenix) and was

duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause be,

and hereby is affirmed.

Filed and entered December 2, 1976

10a lla

casas © The petition for rehearing is denied and the sug-

UNITED STATES COURT OF APPEALS gestion for a rehearing in banc is rejected.

FOR THE NINTH CIRCUIT Dated: March 21, 1977.

No. 76-1509

[Filed Mar. 23, 1977, U. S. Court of Appeals,

Emil E. Melfi, Jr., Clerk]

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v8.

ANTHONY ROBERT WHEELER, DEFENDANT-APPELLEE

Before: GoopWIN and SNEED, Circuit Judges, and

East,* District Judge.

The panel as constituted in the above case has

voted to deny the petition for rehearing. Judge Good-

win and Sneed have voted to reject the suggestion

for a rehearing in banc, and Judge East has recom-

mended rejection of the suggestion for rehearing in

banc.

The full court has been advised of the suggestion

for in banc rehearing, and no judge of the court has

requested a vote on the suggestion for rehearing in

bane. Fed. R. App. P. 35(b).

* Hon. William G. East, Senior United States District Judge

for the District of Oregon, sitting by designation. @ ©. „ soveenment eee orriee, 1977 assess 7