# Petition — United States v. Wheeler > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1869%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 313 ## Text Ne 76-1629 8 Court, v. S$ In the Supreme Court of the United Stuten OcToBER TERM, 1976 hike 2014 * ‘Lhe, " 2K , = 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1869%3A1. Public record. Not legal advice.