Amicus Curiae Brief — Duro v. Reina

Supeenié Court, ug,

FILED

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CLERK 4 =

In The

Supreme Court of the United States

October Term, 1988

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ALBERT DURO,

Petitioner,

VS.

EDWARD REINA, CHIEF OF POLICE, SALT RIVER

PIMA-MARICOPA INDIAN COMMUNITY, et al.,

Respondents.

La.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

s

vw

BRIEF OF AMICUS CURIAE

SAC AND FOX NATION,

KICKAPOO TRIBE OF OKLAHOMA, and

HOUSING AUTHORITY OF THE SAC & FOX NATION

IN SUPPORT OF RESPONDENTS

=

G. WiLuiaM Rice

G. WituraM Rice, P.C.

1808 South East Avenue

Cushing, Oklahoma 74023

(918) 225-4800

Attorney for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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——

TABLE OF CONTENTS

Page

Se Se IN sac vcccccccrccsseuseceens ii

INTEREST OF AMICUS CURIAE .................. 1

SUMMARY OF ARGUMENT......................- 3

ARGUMENT:

UL

II.

Ill.

IV.

INDIAN TRIBES ARE SOVEREIGN ENTITIES

ENTITLED TO EXERCISE THE AUTHORITY

TO ADJUDICATE DISPUTES CONCERNING

ALL PERSONS AND PROPERTY WITHIN THE

INDIAN COUNTRY SUBJECT TO THEIR JURIS-

CUD aa hedreWadauus tow esetiesbecseses

INDIAN TRIBES HAVE FULL AUTHORITY TO

ENFORCE THEIR CRIMINAL LAWS AS TO

OFFENSES COMMITTED BY INDIANS

WITHIN THE INDIAN COUNTRY SUBJECT TO

ee

THE GRANTING OF AMERICAN CITIZEN-

SHIP TO INDIANS WAS NOT INTENDED BY

CONGRESS TO LIMIT THE AUTHORITY OF

INDIAN TRIBES WITH RESPECT TO NON-

MEMBER INDIANS OF OTHER TRIBES ......

THE COURT SHOULD RETURN TO THE CON-

CEPTUAL CLARITY OF JUSTICE MARSHALL'S

DECISION IN WORCESTER V. GEORGIA .....

ec at ee eke deteueedccetundei evens

13

il

TABLE OF AUTHORITIES

Page

Cases

Alaska Pacific Fisheries v. United States, 248 U.S. 78

0) |) 8

Anonymous, 1 Fed Cas. 447 (C.C.D. Mo. 1843)....... 11

Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir.

|) ) PI 8

Bryan v. Itasca County, 426 U.S. 373 (1976)........... 22

Buster v. Wright, 135 F. 947 (8th Cir. 1905), appeal

dism. 203 US. 599 (1906) ....-<000esss000unee 7

Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982)

cert. den. 74 L.Ed.2d 277 (1902) .....<.cccsusueuneun 8

Choate v. Trapp, 224 U.S. 665 (1912) .................. 8

Colville Confederated Tribes v. Walton, 647 F.2d 42

(Sth Cis. 1962). .....2000cc0eecese seen ene 8

Confederated Salish & Kootenai Tribes v. Namen, 665

F.2d 951 (Sth Civ. 1902). ....2..0005eunn eee 8

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

yr. i) .) 21

Cotton Petroleum v. New Mexico, _ U.S. __, 109

S.Ct. 1698 (ISGD). ... 2. ee ccccencuees eee 17

DeCoteau v. District Court, 420 U.S. 425 (1975)........ 8

Fisher v. District Court, 424 U.S. 382 (1976)........... 7

Jones v. Meehan, 175 U.S. 1 (1899) .................... 6

Kennerly v. District Court, 440 U.S. 423 (1971)..... 18, 20

ili

TABLE OF AUTHORITIES - Continued

Page

Knight v. Shoshone and Arapaho Tribes, 670 F.2d 900

eae ae eases sccccccccccccccccs: 8

ari v. Wright, 34 S.W. 807 (Ct. App. Ind. Terr.)

. 105 e SE, WUD nv vse ccc cccccceces 7

McClanahan v. Arizona Tax Commission, 411 U.S.

Eee i ences sccevecccccccccs 8, 17, 20

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)

Saab asec cance cccecccccccccccess 6, 7, 8

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) .... 17

Montana v. United States, 450 U.S. 544 (1981) ..7, 17, 21

Morris v. Hitchcock, 194 U.S. 384 (1904)............... 7

Morton v. Mancari, 417 U.S. 535 (1974) .............. 13

Northern Cheyenne Tribe v. Hollowbreast, 425 U.S.

Eee a seve se ccesssccccccccccccce. 8

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

GUGM ee cabewccccesescscesccsccsecss 21

Ortiz-Barraza v. United States, 412 F.2d 1176 (9th

ee San case eccescreccesccnces: 8

Roff v. Burney, 168 U.S. 218 (1897) ................4.. 6

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)

EGE ae escocecesccccsccccscccece 6, 7, 8, 12

Seymour v. Superintendent, 368 U.S. 351 (1962) ....... 19

Squire v. Capoeman, 351 U.S. 1 (1956)................. 4

State v. McKenney, 18 Nev. 182, 2 Pac. 171 (1883).... 11

Talton v. Mayes, 163 U.S. 374 (1876) .................. 9

iv

TABLE OF AUTHORITIES - Continued

Page

Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian

Tribe, 634 F.2d 474 (9th Cir. 1980).................. 8

United States v. Celestine, 215 U.S. 278 (1905)...... 8, 19

United States v. Kagama, 118 U.S. 375 (1886)....... 7, 10

United States v. Mazuire, 419 U.S. 544 (1975).......... 7

United States v. Quiver, 241 U.S. 602 (1916)........... 6

United States v. Wheeler, 435 U.S. 313 (1978) ....6, 7, 17

Washington v. Confederated Tribes, 447 U.S. 134

SA b+ uendnweneckea see eeatieseieraeeere tases 7

Williams v. Lee, 358 U.S. 217 (1959)........ 7, 16, 17, 18

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 6, 7, 17

STATUTES

Treaty of January 21, 1785, 7 Stat. WB io vcnies cudesncicn 5

Treaty of November 28, 1785, 7 Stat. 18.............. 5

Treaty of January 3, 1786, 7 Stat. 21.................. 5

Treaty of January 10, 1786, 7 Stat. 24 ................ 5

Treaty of January 31, 1786, 7 Stat. 26 ................ 5

Treaty of January 9, 1789, 7 Stat. 28 ................. 5

Treaty of August 7, 1790, 7 Stat. 35..............00.. 5

Se GE TS By. Tres Fs i cnc eesckonnssnssicens 5

Trenty of August 3, 1795, 7 Stat. GD... ccccccsccses 5

ae aE Pe Se wikis ecco c eke ec de eee 14

TABLE OF AUTHORITIES - Continued

Page

ee Gr ee Ws 5s 60h 065540665 kkaeeek his kauent 13

I os on nk b 450k 6b060d0ss ocncesasasauabaenanes 9

ee I a dh rdanccnevsactvcsncsadecsokeres 13

Pep IN IES. 6 440 5.600 640.4464 6040506605004 sKnscaE hana 18

SG I 5a 504s cc eu sdssnenseeseussnsuseeauewenace 13

RN Rs dad kvescacananvaen dhecksenesssdeus¥aees 14

Rat GE Tlie F, TOG, BS BOM. GF... scree cc cccccccnc: 11

ee Ge ee s,s ee GE hc s ode c a ceubcadccsess 9

SE I ocd cescigsh cde ibe esceeneset aoe hanekaenne 9

SEER rent ary re OER LEE ee ene 14

Pe isc ls bin aln wa lnheudendesdeadcuseeees 13

abou beneccdvhesddunsuscceaiuesacscacees 9

ee I oo 64 6005.5 200 0a wee abas von taebsekasnnee 14

i re rere Cor errs rere 16

6 5bc ccccncakchancbinpanes anu cats 16, 19

DTI oak bovscenscscheaseeuseeceueawerne 14

IIE 9 ct dock nasi ss ancsssesckascoayeetass 18

8 rr Pr err Tre 10

3! aS a uneunaieas 16, 19, 20

es Eo ho Ake vn con We benceacdnensaencéapens 21

vi

TABLE OF AUTHORITIES - Continued

Page

EE EG ivi whicnds dnc uuledWh bunededaeheds ds 1

i EE Es bog dpe ceeweveseneesuasescavewebies 12

ME so ohaeandeesannassaddsaddesesiannenues 1

i Mi an cose sueunscdeueesetessescesaseneea 21

Ps sc akk Ades ab Rabu chen wae een cena waanes 21

i aco cc eens sek eree he exe Cu seneee neeeen 21

i iE isa JOR CRNA URAES ERRATA WEEN e 21

ER er ee a ane Se ee een er 21

oi rol fei e dena Ran Newnan 9

A IS re ee oe ep 19, 20

i i aol etna eae ek amadawea sakes 21

ee oo 9. 5k 65 064044653094 604640 CeReKeuaess 21

ee ces cpa akc aGesndaNbdeeenevhanweeneyes 21

EE eS Ae er ere 21

Pe Ms TE PD a scccvcsecies feb pehe6GssS nesenae ean 21

ek Ee ee er rrr 16, 18

OTHER AUTHORITIES

F. Cohen, HANDBOOK OF FEDERAL INDIAN

ee PED v's ob vewawnckau'es oes 4, 6, 7, 9, 10, 22

F. Cohen, HANDBOOK OF FEDERAL INDIAN

Be SE i kine taki eked nena dbase kane eke 16

President Reagan’s Indian Policy Statement ......... 21

Vii

TABLE OF AUTHORITIES - Continued

Page

mua. GPG. UN, GRGEIND TODD. 25 cece ccc cccsccnss 12

Be, GU. TE. AATIND TEE... 2. cc ccc cccccccccvess 12

Rep. Comm. Ind. Affairs 1865....................05: 12

mae. Cees. Te. AGIOS BGP77. 2.2... ccc cccccccccces 12

Rep. Comm. Ind. Affairs 1886....................4.: 12

Bem. Comes. Tie. Aiieiee BOOP. . ow. nc ccc cccceccveveee 12

House Report No. 222, 68th Congress, 1st Session’

ETT CUPEPT OPT TEeL Eee C re eet eee 14

Senate Report No. 441, 68th Congress, 1st Session

aknan tks 6c odew ess b Ads bo eeNeeeeevenecusees 14

1924 Congressional Record-House 9303, May 23,

WE Noeaedetatusniancacancsuuceerdv€ esas c¥enecné 15

Senate Comm. on Indian Affairs, Report No. 1080,

73rd Cong., 2nd Session (1934) ...............055. 13

Senate Comm. on Indian Affairs, Hearings on S.

2755 and S. 3645, Part 2, 73rd Cong. 2nd Session

RGA oan SRARSOREST OA CAMERA CM ARAS SR AEER RHEE 13

House Report No. 1804, 73rd Cong. 2nd Session

PA CG WaaRehedhesupusscaeuchesaebarscenspvonens 13

House Concurrent Resolution 108, 83rd Cong. 2nd

Sh EEN ana tele psGnuas eekeneeNvevuevierededs 16

12 Univ. Calif. Davis L. Rev. 1 (1979) ............... 13

State Power Over Indian Reservations 26 S. Dak.

ho Ss ee ED WEED oa vec ccc dedusauesevceas 17

fe ee 11

BRIEF OF AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The Sac and Fox Nation and Kickapoo Tribe of Okla-

homa are federally recognized tribes of Indians located in

the State of Oklahoma. Both Tribes have adopted a writ-

ten Constitution approved by the Secretary of the Interior

pursuant to the Oklahoma Indian Welfare Act, Act of

June 26, 1936, ch. 831, § 3, 49 Stat. 1967, codified at 25

U.S.C. § 503, and the Sac and Fox Constitution and Char-

ter incorporate the provisions of the Indian Reorganiza-

tion Act, 25 U.S.C. §§ 461 et seq.

Pursuant to their Constitutions, the Legislature of the

Sac and Fox Nation and Kickapoo Tribe of Oklahoma

have enacted a myriad of ordinances which regulate the

conduct of both members and non-members within the

Indian Country subject to their jurisdictions. Some of

those ordinances include a Business Corporation Act,

providing for the incorporation and domestication of cor-

porations within the tribal jurisdiction, a Grievance Com-

mittee Procedure Act, providing for the Removal or

discipline of elected tribal officers, a Bingo Ordinance,

providing for the licensing and regulation of bingo activ-

ities within the tribal jurisdiction, a Mineral Leasing Act,

regulating the execution, operation, and terimination of

leases of tribal owned minerals including oil and gas, a

Secured Transactions Act, providing for the entry and

filing of liens upon personal property held within the

tribal jurisdiction when such property is subject to a

security interest by a lender, a General Revenue and

Taxation Act, providing for the levy, administration, and

collection of tribal taxes upon such things as tobacco,

sales of personal property, employees’s earnings, pos-

sessory interests such as leases in tribal or individual

trust lands, the severance of oil and gas from Indian

lands, the net receipts of licensed bingo operations, and

motor vehicles, and comprehensive police, criminal and

appellate procedure, and criminal offenses codes. This

Tribal legislation applies to all persons and property

located within the Indian country subject to the jurisdic-

tion of the Tribes, and regulates the conduct of both

Indians and non-Indians alike. Many of these ordinances

are enforced by criminal penalties as to member and non-

member Indians alike. The vast majority of the Judges of

the Court of these Tribes are attorneys who are Indians,

but are members of other Tribes resident in Oklahoma.

Written Bureau of Indian Affairs records concerning the

adjudication by the Sac and Fox of controversies concern-

ing the Nation or its members and non-members can still

be found dating from as early as 1853.

In order for the Sac and Fox Nation and Kickapoo

Tribe of Oklahoma to continue their social and economic

development within the Tribal jurisdictions it is critical

that the Tribal Courts be available to adjudicate criminal

violations of tribal law which arise between Indian per-

sons coming within the jurisdiction of the Tribes. Many

nonmember Indians are married to members of the Tribes

and reside within the Indian Country of the Tribes. Like-

wise, many nonmember Indians live in housing units

provided by the tribes and/or work for the tribes or

businesses located within the tribal jurisdictions. Each

tribe has many social and cultural events each year which

draw from hundreds to thousands of nonmember Indians

to the Tribal jurisdiction.

A decision of this Honorable Court determining that

Tribal criminal laws could not be enforced against non-

member Indians in the Tribal Court would create immedi-

ate chaos in the area of law enforcement and tribal gov-

ernment, and change the status quo regarding authority

over criminal offenses of non-member Indians all of

whom are now tried in the tribal Courts. Such a result

could cause the disintegration of the legal foundation for

the control of social, cultural, religious, and economic .

activity within the tribal jurisdiction. In order for Tribal

Law to be effective, it must be enforceabie in the Tribal

forums. Amicus Curiae have an essential and compelling

interest in the maintenance of law and order within the

jurisdiction of the Tribes, and the regulation by the Tribes

of business and personal activities of persons within the

jurisdiction of the Tribes in order to provide for and

promote the peace, safety, and welfare of all persons who

live, work, or otherwise enter into the tribal jurisdiction.

+

SUMMARY OF ARGUMENT

Indian tribes are distict political cormmunities which

have always exercised criminal jurisdiction over their

members and Indians who are members of other tribes as

a matter of inherent right. This right has been recognized

by treaty, by the courts, and by the United States Attor-

ney General. Congress has never taken this authority

from the Tribes, and it is the prerogative of Congress to

do so or to leave the status quo intact.

Finally, the Court should resist this invitation to

engage in judicial activism, and return to the conservative

approach which is consistent with the historical treatment

of Indian tribes. Such an approach requires that the

authority of Indian tribes over non-member Indians in

criminal cases be affirmed.

+

ARGUMENT

I. INDIAN TRIBES ARE SOVEREIGN ENTITIES

ENTITLED TO EXERCISE THE AUTHORITY TO

ADJUDICATE DISPUTES CONCERNING ALL PER-

SONS AND PROPERTY WITHIN THE INDIAN

COUNTRY SUBJECT TO THEIR JURISDICTION.

While the term “Indian Country” has been used in

many different senses, it has traditionally been defined as

country within which Indian tribal laws, whether express

legislative enactments or tribal law in the form of tradi-

tional usages and customs, i.e., tribal common law, and

federal laws relating to Indians are generally applicable

to the exclusion of state laws. F. Cohen, Handbook of

Federal Indian Law, 5 (1942). Felix Cohen, the noted Indian

law scholar previously recognized by this Court as the

eminent authority in the field, Squire v. Capoeman 351 U.S.

1, 8-9 (1956), reviewed the historical development of the

term Indian Country, Id. at pages 5 and 6:

The Indian country at any particular time

must be viewed with reference to the existing

body of federal and tribal law. Until 1817, it is

country within which the criminal laws of the

United States are not generally applicable, so

that crimes in the Indian Country by whites

against whites, or by Indians, are not cognizable

in state or federal courts any more than crimes

committed on the soil of Canada or Mexico.

Treaties defined the boundaries between the

United States, or the separate states, and the

territories of the various Indian tribes or

nations. Within these territories the Indian tribes

or nations had not only full jurisdiction over

their own citizens, but the same jurisdiction

over citizens of the United States that any other

power might lawfully exercise over emigrants

from the United States. Treaties between the

United States and various tribes commonly stip-

ulated that citizens of the United States within

the territory of the Indian nations were subject

to the laws of those nations.!

and further:

Indian country in all these statutes [the

original federal legislation defining the Indian

country and extending certain aspects of federal

law to certain persons or property therein] is

territory, wherever situated, within which tribal

law is generally applicable, federal law is appli-

cable only in special cases designated by the

statute, and state law is not applicable at all.

This conception of the Indian country reflects a

1 Treaty of January 21, 1785, with Wiandot, Delaware,

Chippewa, and Ottawa Nations, 7 Stat. 16; Treaty of November

28, 1785, with the Cherokees, 7 Stat. 18; Treaty of January 3,

1786, with the Choctaw Nation, 7 Stat. 21; Treaty of January 10,

1786, with the Chickasaw Nation, 7 Stat. 24; Treaty of January

31, 1786, with the Shawanoe Nation, 7 Stat. 26; Treaty of

January 9, 1789, with the Wyandot, Delaware, Ottawa, Chip-

pewa, Pattawattima, and Sac Nation, 7 Stat. 28; Treaty of

August 7, 1790, with the Creek Nation, 7 Stat. 35; Treaty of July

2, 1791, with the Cherokee Nation, 7 Stat. 39; Treaty of August

3, 1795, with the Wyandots, Delawares, Shawanoes, Ottawas,

Chipewas, Putawatimes, Miamis, Eel-river, Wees’s, eases cena

Piankashaws, and Kaskaskias, 7 Stat. 49.

situation which finds its counterpart in interna-

tional law in the case of newly acquired territo-

ries, where the laws of those territories continue

in force until repealed or modified by the new

sovereign.

It is, therefore, clear that the question of whether an

Indian tribe has the authority to enforce its criminal laws

against Indian suspects concerning alleged offenses aris-

ing within the Indian Country must be determined in

light of this historical understanding, and the current

federal policy of tribal self-determination and limitation

of federal involvement in the affairs of the tribes.

The most basic principle of Indian law, supported by

a host of decisions, is that those powers which are law-

fully vested in an Indian tribe are not, in general, dele-

gated powers granted by express acts of Congress, but

rather inherent powers of a limited sovereignty which

have never been extinguished. The statutes of Congress

then, must be examined to determine the express limita-

tions placed upon tribal sovereignty rather than to deter-

mine its sources or positive content. Cohen, Handbook of

Federal Indian Law, 122 (1942); Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (1982) (inherent power to tax, regulate,

and exclude non-indians); United States v. Wheeler, 435

U.S. 313, (1978) (power to exercise criminal jurisdiction

over Indians); Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978) (membership, and immunity from suit by reason of

sovereign immunity); Roff v. Burney, 168 U.S. 218 (1897)

(membership); Jones v. Meehan, 175 U.S. 1 (1899) (inheri-

tance); United States v. Quiver, 241 U.S. 602 (1916) (domes-

tic relations); Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832) (power to exclude nonmembers).

Indian tribes, as distinct political communities retain

ing their original natural rights of self-government,

remain a separate people with the power of regulating

both their members and other persons or entities within

their territory. Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832); United States v. Mazurie, 419 U.S. 544 (1975); United

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

Wheeler, 435 U.S. 313, (1978); Santa Clara Pueblo v. Mar-

tinez, 436 U.S. 49 (1978); F. Cohen, Handbook of Federal

Indian Law, 122-23 (1942).

The outgrowth of this historical and decisional per-

spective is the repeated determination that Indian tribes

have the inherent authority to enforce their own laws in

their own forums as to both Indians and non-Indians.

Williams v. Lee, 358 U.S. 217 (1959); Fisher v. District Court,

424 U.S. 382 (1976); Santa Clara Pueblo v. Martinez, 436

U.S. 49 (1978); Merrion v. Jicarilla Apache Tribe, 455 U.S.

130 (1982).

Within the Indian Country, the repeated litigation in

this, and other courts, has clearly shown that Indian

Tribes may regulate and adjudicate controversies arising

out of the activities of Indians and non-Indiahs where the

conduct of the non-Indian or non-member threatens or

has a direct effect on the political integrity, economic

security, or the health and welfare of the tribe. Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130 (1982); Montana v.

United States, 450 U.S. 544, 565-66 (1981); Washington v.

Confederated Tribes, 447 U.S. 134, 153-55 (1980); Williams v.

Lee, 358 U.S. 217 (1959); Morris v. Hitchcock, 194 U.S. 384

(1904); Fisher v. District Court, 424 U.S. 382 (1976); Buster

v. Wright, 135 F. 947 (8th Cir. 1905) appeal dism. 203 U.S.

599 (1906); Maxey v. Wright, 34 S.W. 807 (Ct. App. Ind.

Terr.) aff'd. 105 F. 1003 (8th Cir. 1900); Barta v. Oglala Sioux

Tribe, 259 F.2d 553 (8th Cir. 1958); Trans-Canada Enter-

prises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474 (9th

Cir. 1980); Cardin v. De La Cruz, 671 F.2d 363, 366 (9th Cir.

1982) cert. den. 459 U.S. 967 (1982); Knight v. Shoshone and

Arapaho Tribes, 670 F.2d 900 (10th Cir. (1982); Ortiz-Barraza

v. United States, 412 F.2d 1176, 1179 (9th Cir. 1975); Confed-

erated Salish and Kootenai Tribes v. Namen, 665 F.2d 951,

963-64 (9th Cir. 1982); Colville Confederated Tribes v. Walton,

647 F.2d 42 (9th Cir. 1981).

When considering whether any particular legislation

imposes limitations upon the governing authority of

Indian Tribes, that legislation or treaty must be liberally

construed in the interest of the Tribe, and doubtful

expressions resolved in its favor. Northern Cheyenne Tribe

v. Hollowbreast, 425 U.S. 649 (1976); DeCoteau v. District

County Court, 420 U.S. 425 (1975); McClanahan v. Arizona

Tax Commission, 411 U.S 164 (1973); Alaska Pacific Fisheries

v. United States, 248 U.S. 78 (1916); Choate v. Trapp, 224

U.S. 665 (1912); United States v. Celestine, 215 U.S. 278

(1905); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978);

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).

Il. INDIAN TRIBES HAVE FULL AUTHORITY TO

ENFORCE THEIR CRIMINAL LAWS AS TO

OFFENSES COMMITTED BY INDIANS WITHIN

THE INDIAN COUNTRY SUBJECT TO THEIR

JURISDICTION.

From the earliest years of the Republic the

Indian tribes have been recognized as “distinct,

independent, political communities,” and, as

such, qualified to exercise powers of self-gov-

ernment, not by virtue of any delegation of

powers from the Federal Government, but

rather by reason of the original tribal

sovereignty.

F. Cohen, Handbook of Federal Indian Law, p. 122.

Petitioner asserts that Indian tribes do not have the

authority to adjudicate in their Courts criminal cases

arising within the Indian Country subject to the jurisdic-

tion of the Tribe when the controversy includes as a

defendant non-member Indians. Petitioner fails to recog-

nize that when Congress has intended the result Peti-

tioner urges — that the government of an Indian tribe be

limited in its authority over persons or property within

its territorial jurisdiction - it has explicitly so provided.

See, Act of June 7, 1897, 30 Stat. 62, 84 (Five Civilized

Tribes); Act of June 28, 1906, 34 Stat. 539, 545 (Osage

Tribe); Indian Civil Rights Act of 1968, 25 U.S.C.

§§ 1301-1303; Treaty of July 23, 1851, 10 Stat. 949, Article 5

(Proclamation, February 24, 1853) (introduction of liquor

into the Indian country); Act of June 28, 1898, Ch. 517, 30

Stat. 495, Sections 1, 3, 26, 28 (Courts and laws affected).

It has been setiled law for over a century that the

Constitution of the United States does not apply to or

limit the authority of Indian tribal governments, Talton v.

10

Mayes, 163 U.S. 376 (1876), and the subsequent case law

supporting this black letter law is legion. Felix Cohen,

Handbook of Federal Indian Law, 122 (1942) stated:

Perhaps the most basic principle of all Indians

law, supported by a host decisions hereinafter

analyzed, is the principle that those powers

which are lawfully vested in an Indian tribe are

not, in general, delegated powers granted by

express acts of Congress, but rather inherent

powers of a limited sovereignty which has never

been extinguished. Each Indian tribe begins its

relationship with the Federal Government as a

sovereign, recognized as such in treaty and leg-

islation. The powers of sovereignty have been

limited from time to time by special treaties and

laws designed to take from the Indian tribes

control of matters which, in the judgment of

Congress, these tribes could no longer be safely

permitted to handle. The statutes of Congress,

then, must be examined to determine the limita-

tions of tribal sovereignty rather than to deter-

mine its sources or its positive content. What is

not expressly limited remains within the domain

of tribal sovereignty.

The traditional conservative view with respect to the

powers of Indian Tribes with respect to the administra-

tion of justice within the Indian Country subject to the

- Tribe’s jurisdiction is set out in Cohen, Handbook of Federal

Indian Law 146 - 149 (1942 Ed.). The authority of a Tribe to

punish violations of its law by Indians has been recog-

nized in the decisions of this Court contemporaneous

with the enactment of the Indian Major Crimes Act, 18

U.S.C. § 1153, United States v. Kagama, 118 U.S. 375 (1886),

and by the United States Attorney General. In an 1883

opinion involving a Creek defendant who allegedly killed

an Arapaho victim within the Potawatomi Reservation,

11

the Attorney General concluded that there was no federal

jurisdiction over the alleged offense. 17 Op. A.G. 566, 570

(1883). See, also, State v. McKenney, 18 Nev. 182, 2 P. 171

(1883), Anonymous, 1 Fed. Cas. No. 447 (C.C.D.Mo. 1843).

Within this same time period, it is obvious that Con-

gress knew how to provide for federal and/or state juris-

diction over criminal offenses involving members of two

different tribes on the reservation of a third tribe or the

reservation of the victim or perpetrator. Section 12 of the

Act of May 2, 1890, 26 Stat. 81 (the Oklahoma Organic

Act) expressly provided for limited jurisdiction in the

courts of the Territory of Oklahoma in cases involving

members of different Tribes as follows:

That jurisdiction is hereby conferred upon the

district courts in the Territory of Oklahoma over

all controversies arising between members of

citizens of one tribe or nation of Indians and the

members or citizens of other tribes or nations in

the Territory of Oklahoma, and any citizen or

member of one tribe or nation who may commit

any offense or crime in said Territory against the

person or property of a citizen or member of

another tribe or nation shall be subject to the

same punishment in the Territory as he would

be if both parties were citizens of the United

States ....

Although other sections of that act limited the application

of said section to those lands not within the jurisdiction

of the Tribes, and said section was no longer of any force

after the admission of Oklahoma as a state, it does show

that Congress knew how to explicitly reach the result

which Petitioner urges in this case. In other words, if

Congress determines that nonmember Indians should be

subject to either state or federal courts for their offenses

12

within the Indian Country of another tribe, or if Congress

determines that Tribal Courts should no longer have the

authority to try nonmember Indians, it knows exactly

how to accomplish this result.

In fact, since the early 1800’s, Congress has resisted

providing for such intrusions into the exercise of tribal

governmental authority.2 Simply stated, both the Con-

gress and this Court have consistently guarded the

authority of Indian tribes over the Indian Country subiect

to their jurisdiction, and their power to govern persons

and property therein. If this authority is to be taken from

the tribes, it is for Congress alone to do it. The fact that

Congress has not done so requires that the decision of the

United States Court of Appeals for the Ninth Circuit be

affirmed.

2 See, Rep. Comm. Ind. Aff. 1833 p. 186 (Commissioner

Herring); Rep. Comm. Ind. Aff. 1838 p. 424 (Commissioner

Crawford); Extract from Report of the Secretary of the Interior,

1865, p. IV in Rep. Comm. Ind. Aff. 1865 (Interior Secretary

Harlan); Rep. Comm. Ind. Aff. 1877 pp. 1-2 (Commissioner

Hayt); Rep. Comm. Ind. Aff. 1886, p. XXVII (Commissioner

Atkins); See, also, Rep. Comm. Ind. Aff. 1889, p. 26 (reporting

the establishment of Courts of Indian Offenses in 1882 without

the benefit of Congressional approval or authorization, even in

light of the many previous requests for such authority), and

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 68-69 (1978), where

this Court discusses another attempt by the Interior Depart-

ment to obtain Congressional approval to review the govern-

mental actions of Indian tribes - an attempt which was rejected

by the Congress. The Indian Reorganization Act itself, 25

U.S.C. §§ 465 et seq., was designed not to limit the authority of

traditionally based tribal governments, but to get the Secretary

of the Interior out of tribal self-government into which he had

(Continued on following page)

13

Ill. THE GRANTING OF AMERICAN CITIZENSHIP TO

INDIANS WAS NOT INTENDED BY CONGRESS

TO LIMIT THE AUTHORITY OF INDIAN TRIBES

WITH RESPECT TO NONMEMBER INDIANS OF

OTHER TRIBES.

Prior to the original general Indian citizenship act,

Act of June 2, 1924, Ch.233, Public Law No. 175 (H.R.

6355; Approved, June 2, 1924), United States citizenship

had been granted only to certain classes of Indians. The

question of Indian citizenship was resolved only by indi-

vidual inquiry in which the facts of each particular case

were controlling. In order to be classified as a citizen of

the United States, an Indian person born within the

United States was required to show that he or she was a

citizen by virtue of either (1) treaty provisions allowing

“naturalization” such as Articles 13, 17, and 28 of the

treaty of February 23, 1867 with various bands or tribes of |

Indians (15 Stat. 513); (2) receipt of an allotment of land

pursuant to the General Allotment Act of February 8,

1887, 24 Stat. 388, prior to its 1906 amendment; (3) receipt

of a patent in fee simple to an allotment after 1906 pur-

suant to the Act of May 8, 1906, 34 Stat. 182, amending

the General Allotment Act; (4) abandoning his tribe and

taking up the habits of “civilized” life pursuant to Section

6 of the General Allotment Act of 1887; (5) being a hon-

orably discharged veteran of World War I pursuant to the

(Continued from previous page)

intruded by his unwarranted assumption of administrative

powers. Ziontiz, After Martinez: Civil Rights Under Tribal Gov-

ernment, 12 Univ. Calif. Davis L. Rev. 1, 31-33 (1979); Senate

Comm. on Indian Affairs, Report No. 1080, 73rd Cong., 2nd

Sess., 3-4 (1934); Hearings on S. 2755 and S. 3645, Senate

Comm. on Indian Affairs, 73rd Cong., 2nd Sess., p. 2, p. 256

(1934); H.R. Rep. No. 1804, 73rd Cong., 2nd Sess., p. 8 (1934);

Morton v. Mancari, 417 U.S. 535 (1974).

14

Act of November 6, 1919; (6) being an Indian woman

married to a citizen of the United States after the Act of

August 9, 1888, 25 Stat. 392; (7) being subject to special

legislation such as the Act of March 3, 1901, 31 Stat. 1447,

(extending citizenship to Indians in the Indian Territory)

or the Act of March 3, 1921, 41 Stat. 1249-1250, (extending

citizenship to Indians of the Osage Tribe in Oklahoma); or

(8) being born to Indian parents who were citizens.

In House Report No. 222 to accompany H.R. 6355,

68th Congress, Ist. Session, (the precursor to 8 U.S.C.

§ 1401(a) (2)) the House Committee stated:

At the present time it is very difficult for an

Indian to obtain citizenship without either being

allotted and getting a patent in fee simple, or

leaving the reservation and taking up his resi-

dence apart from any tribe of Indians. This leg-

islation will bridge the present gap and provide

means whereby an Indian may be given citizen-

ship without reference to the question of land

tenure or the place of his residence, and your

committee has unanimously recommended the

enactment of this measure.

In its original form, this bill provided a process by which

the Secretary of the Interior in his discretion issued a

“certificate of citizenship” to noncitizen Indians born

within the United States upon application. The Senate

amended the bill to its final form, Senate Report No. 441,

68th Congress, Ist Sess., April 21, 1924 stating that “as

[the Five Civilized Tribes and] a large number of other

Indians had become citizens under various acts of Con-

gress, it was only just and fair that all Indians be declared

citizens.”

15

The intended limited effect of this legislation, how-

ever, is shown by the remarks of Mr. Snyder, the sponsor

of the bill in response to a question as to whether the bill

would affect an Indian’s right to vote in state elections:

[Tlt is not the intention of this law to have any

effect upon the suffrage qualifications in any

State. In other words, in the State of New Mex-

ico, my understanding is that in order to vote a

person must be a taxpayer, and it is in no way

intended to affect any Indian in that country

who woutd be unable to vote unless qualified

under the State suffrage act. That is the under-

standing. And also it goes to this extent, it does

not in any way change the right of the Indian to

any tribal relation or any property he now

holds. It does not affect that in any way but

simply makes him an American citizen. . . .

1924 Cong. Rec. - House 9303, May 23, 1924, Remarks of

Mr. Snyder. In other words, the grant of citizenship to all

Indians, whether they requested it or not, did not grant

Indians even the right to vote in state elections, and

certainly was not intended to affect their relations with

any tribe. To the contrary, the grant of citizenship was

intended to make Indians American citizens without

affecting “any tribal relation” and without requiring the

Indian to take “up his residence apart from any tribe of

Indians.” There is simply no indication in the legislative

history the grant of citizenship is intended to prevent the

exercise of tribal criminal jurisdiction over Indian citizens

of the United States simply because they are not a mem-

ber of the Tribe within whose jurisdiction they allegedly

committed an offense. Further, any tribal member may

resign his legal and political status as an Indian simply by

resigning his membership in an Indian tribe — thereby

16

becoming for all intents and purposes a non-Indian. Since

petitioner did not do so, the judgment of the Ninth Cir-

cuit should be affirmed.

IV. THE COURT SHOULD RETURN TO THE CON-

CEPTUAL CLARITY OF JUSTICE MARSHALL'S

DECISION IN WORCESTER v. GEORGIA.

In the early 1950’s, Congress experimented with a

policy of termination of the government?! relationship

between the United States and the various Indian tribes

through a series of termination acts, and a concurrent

resolution expressing the desire of Congress to terminate

the federal relationship with Indian people and subject

them and their lands to state law. House Concurrent

Resolution’ 108, 83rd Cong., 2d Sess. 2-4 (1954), since

repealed. A major step toward implementation of the

termination policy was the enactment of Public Law

83-280, Act of August 15, 1953, ch. 505, 67 Stat. 588

(Section 7 Repealed and reenacted as amended 25 U.S.C.

§§ 1321-1326, 18 U.S.C. § 1162, 28 U.S.C. § 1360. [For a

general discussion of these matters, see, Cohen’s Handbook

of Federal Indian Law (1982 ed.) 170-177.]

At the time of the propoundment of this policy, this

Court began the drift away from its traditional conserva-

tive reliance upon the inherent sovereignty of Indian

tribes as the basis for precluding state action and affirm-

ing tribal authority over all persons within the Indian

Country subject to tribal jurisdiction. This drift began in

Williams v. Lee, 358 U.S. 217 (1959), wherein the Court

propounded the “infringement test” stating “Essentially,

absent governing Acts of Congress, the question has

17

always been whether the state action infringed on the

right of reservation Indians to make their own laws and

be ruled by them.” This drift escalated in Mescalero

Apache Tribe v. Jones, 411 U.S. 145 (1973) and McClanahan

v. Arizona Tax Commission, 411 U.S. 164 (1973) wherein the

Court acknowledged that it had in some ways departed

from the conceptual clarity of Justice Marshall’s decision

in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), and

reached its zenith in Montana v. United States, 450 U.S. 544

(1981) and Cotton Petroleum Corp. v. New Mexico, __ U.S.

___ , 109 S.Ct. 1698 (1989). In short, a recent line of dicta

in cases such as Williams, McClanahan, and United States v.

Wheeler have ripened into a limited line of holdings

restricting tribal authority and expanding state authority

over non-Indians in Indian Country, without benefit of

federal statutory sanction, as outgrowths of the since

repealed liberal termination policy of the 1950’s. This

judicial activism has resulted in a quagmire of “balancing

tests” and “flexible rules” which appear to be in line with

neither traditional Supreme Court holdings, general fed-

eral statutes, the Constitution, nor the current policies of

the Congress or the Executive branch of the Federal Gov-

ernment. See, “State Power Over Indian Reservations: A

Critical Comment On Burger Court Doctrine,” 26 South

Dakota Law Review 434 (Summer 1981).

Simply stated, these recent decisions each have one

element in common. They each tend to limit traditional

conservative notions of the sovereign powers of Indian

tribal government in favor of increased governmental

authority by the states without benefit of Congressional

sanction, and in direct conflict with the federal statutes

18

providing for the extension of state jurisdiction to per-

sons and property within the Indian Country. This liberal

attempt to redefine, after two hundred years, the relation-

ship between the three active competitors for authority -

the federal, tribal, and state governments — has resulted

in a flood of unnecessary litigation and a series of attacks

upon the very foundation of tribal governments recog-

nized by the political departments of the United States

since the founding days of the Republic.

Aside from the problems incurred in attempting to

square these decisions with two hundred years of case

law, the intent of the framers of the Constitution, and

traditional notions of Indian sovereignty, these decisions

ignore the effect of several federal statutes of general

application which preempt state authority within Indian

Country leaving such authority to be exercised by the

Tribe, and the current policies of Congress. When the

seminal case leading to this line of decisions, Williams v.

Lee, was decided, the “infringement test” was completely

unnecessary, state action being preempted by federal

treaty, Navajo Treaty of 1868, 15 Stat. 667, and Statute, 28

U.S.C. § 1360, 18 U.S.C. § 1151. See, Kennerly v. District

Court, 400 U.S. 424 (1971). |

Congress in 18 U.S.C. § 1151 determined that Indian

Country - the area within which tribal and federal law

operated to the exclusion of the States - would include all

Indian reservations notwithstanding the issuance of any

patent, all Indian allotments, and dependant Indian com-

munities. All tracts within Indian Reservations, whether

patented to an Indian or a non-Indian, are declared by

19

Congress to remain Indian Country, and subject to exclu-

sive tribal and federal jurisdiction until Congress other-

wise determines. Seymour v. Superintendent, 368 U.S. 351

(1962); United States v. Celestine, 215 U.S. 278 (1909). —

Under its Commerce Clause authority, Congress has

amended Public Law 83-280 at 18 U.S.C. § 1162 to read in

pertinent part as follows:

(a) Each ofthe States or Territories listed in the

following table shall have jurisdiction over

offenses committed by or against Indians in the

areas of Indian country listed opposite the name

of the State or Territory to the same extent that

such State or Territory has jurisdiction over

offenses committed elsewhere within the State

or Territory, and the criminal laws of such State

or Territory shall have the same force and effect

within such Indian country as they have else-

where within the State or Territory:. .. .

(c) The provisions of sections 1152 and 1153 of

this chapter shall not be applicable within the

areas of Indian country listed in subsection (a)

of this section as areas over which the several

States have exclusive jurisdiction.

and further, at 25 U.S.C. § 1321:

(a) The consent of the United States if hereby

given to any State not having jurisdiction over

criminal offenses committed by or against

Indians in areas of Indian country situated

within such State to assume, with the consent of

the Indian tribe occupying the particular Indian

country or part thereof which could be affected

by such assumption, such measure of jurisdic-

tion over any or all of such offenses committed

within such Indian country or any part thereof

as may be determined by such State to the same

extent that such State has jurisdiction over any

20

such offense committed elsewhere within the

State, and the criminal laws of such State shall

have the same force and effect within such

Indian country or part thereof as they have else-

where within that State.

These statutes obviate the need for the “infringement

test” or “balancing test” analysis in that they are govern-

ing acts of Congress specifically specifying the methods

by which state law can be made applicable to criminal

cases committed by or against Indians within the Indian

Country within the boundaries of that State, and in the

absence of compliance therewith state law is generally

preempted. McClanahan, supra, Kennerly v. District Court,

440 U.S. 423 (1971). This case involves an Indian, Con-

gress had determined the extent to which State instead of

tribal authority will prevail within the Indian Country -

including fee patented lands - in such a fashion that

when an Indian is one of the parties in the case it is a

matter for the application of tribal law to the exclusion of

the state absent compliance with 18 U.S.C. § 1162 and 25

U.S.C. § 1321. When Congress has made such a deter-

mination, Courts are not free to review state or tribal

action under the dormant Commerce Clause. Courts are

final arbiters only when Congress has not acted. Here

Congress has struck the balance it deems appropriate,

and the Court should continue to allow the Tribe to

exercise full authority over all Indians in the Indian

Country and criminal offenses therein until and unless

the State and the Tribe comply with the statutory formula

for the transfer of jurisdiction.

Finally, both the Congress and the executive branch

have repudiated the termination theory upon which this

line of decisions is founded, and have returned to the

21

traditional conservative notions of tribal sovereignty and

independence from state involvement within the Indian

Country subject to the tribe’s jurisdiction. See, Indian Self

Determination Act, 25 U.S.C. §§ 450 et seq.; 1968 Indian

Civil Rights Act, 25 U.S.C. §§ 1322, 1326 (requiring tribal

consent prior to any state assuming civil jurisdiction over

that tribe’s Indian Country); Indian Child Welfare Act of

1978, 25 U.S.C. §§ 1901 et seq. (providing for exclusive

tribal authority over Indian child custody actions when

the Indian child is a resident or domiciled within the

Indian Country and the removal of such actions from

state to tribal courts whether or not either of the parents

are non-Indian when the child is not within the Indian

Country); 25 U.S.C. §§ 2101 et seq. (providing for

increased tribal control of mineral development); 25

U.S.C. §§ 2201 et seq. (providing for consolidation of

fractionated heirship land in the Tribes); 25 U.S.C. §§ 711

et seq., 712 et seq., 761 et seq., 861 et seq., 903 et seq.,

(reinstating Tribes terminated pursuant to the termina-

tion policy of Congress in the early 1950’s - the policy

which underlies Montana, Oliphant, and the dicta in the

other decisions cited above); and 26 U.S.C. §§ 7871 (treat-

ing Indian Tribes as States for the purpose of taxation).

It is clearly the will of Congress and the Executive

Branch see, President Reagan’s Indian Policy Statement,

that Indian Tribes exercise a broad range of authority

over all persons and property within the Indian Country

jurisdiction of the Tribe. The court should not violate the

will of Congress in such matters, County of Oneida v.

Oneida Indian Nation, 470 U.S. 226 (1985), should not

strain to implement a policy which Congress has rejected,

22

Bryan v. Itasca County, 426 U.S. 373, 388 (1976), and

should return to the conceptual clarity of Justice Marshall

by determining that, in regard to tribal authority, “What

is not expressly limited [by specific Act of Congress]

remains within the domain of tribal sovereignty.” Cohen,

Handbook of Federal Indian Law 122 (1942 ed.).

—o

CONCLUSION

There is no doubt in this case that the general author-

ity of Indian Tribes include the authovity to adjudicate

criminal cases arising within the Indian Country subject

to their jurisdiction when an Indian is the defendant. For

these reasons, the judgment of the United States Court of

Appeals for the Ninth Circuit should be affirmed.

Respectfully submitted,

G. WituaM Rice

G. WituaM Rice, P.C.

1808 South East Avenue

Cushing, Oklahoma 74023

(918) 225-4800

ATTORNEY GENERAL FOR THE

SAC AND FOX NATION AND

KICKAPOO TRIBE OF

OKLAHOMA >

a