# Amicus Curiae Brief — Duro v. Reina

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0549%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 676

## Text

Supeenié Court, ug,
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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0549%3A10. Public record. Not legal advice.