Amicus Curiae Brief — Negonsott v. Samuels

No. 91-5397 rpopis.

In the Supreme Court of the Unitebetateas: 3.

OCTOBER TERM, 1991 r

EMERY L. NEGONSOTT, PETITIONER

Vv.

HAROLD SAMUELS, WARDEN, ET AL.

ON PETITION FO \ WRIT OF CERTIORARI

TO THE UNITED STATES ( OURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITE!) STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

BARKY M. HARTMAN

Acting Assista,’ Atiorney General

EDWIN S. KNEEDLER

Assistant to ‘he Solicitor General

WILLIAM K. KELLEY

Assistant to the Solicitor General

EDWARD J. SHAWAKER

KATHERINE L. ADAMS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

SS SR I I EOE

QUESTION PRESENTED

Whether 18 U.S.C. 3243 confers criminal jurisdic-

tion on the State of Kansas to prosecute petitioner

for an offense, committed on an Indian reservation,

that would otherwise be within exclusive federal

jurisdiction under the Major Crimes Act, 18 U.S.C.

1153.

(1)

TABLE OF CONTENTS

Page

Interest of the United States .................... a 1

ETS

Discussion ........ ESS i oan tiaiacatiaaiaais

Conclusion ....................... OE 19

TABLE OF AUTHORTIES

Cases:

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

ELS 11

Application of Denetclaw, In re, 320 P.2d 697

(Ariz. 1958) .......... ees 4

Arizona V. Flint, 492 U. S. 911 (1989) . 4

Arquette v. Schneckloth, 351 P.2d 921 (Wash.

necunscsenee 4

Bryan V. Itasca County, 426 U.S. 373 (1976)........_—8, 11

Carafas Vv. LaVallee, 391 U.S. 234 (1968) .......... 3

Choate Vv. Trapp, 224 U.S. 665 (1912) .................... 11

Colautti v. Franklin, 489 U.S. 379 (1979) ........... 7

Crow Dog, Ex parte, 109 U.S. 556 (1883)... e.

Davis Vv. Michigan Dep't of Treasury, 489 U.S. 803

EEE EE 9

Duro Vv. Reina, 495 U.S. 676 (1990) 00, 3

Evitts v. Lucey, 469 U.S. 387 (1985) .................. 8

Fisi-~ v. District Court, 424 U.S. 382 (1976)... —s_ ‘7-8

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)... 12

Iowa Tribe of Indians v. Kansas, 787 F.2d 1434

(10th Cir. 1986) ......... 0 Se i)

Kansas Indians, The, 72 U.S. (5 Wall.) 737

EE A 8

Miller v. Youakim, 440 U.S. 125 (1979) | 10

Moskal v. United States, 111 S. Ct. 461 (1990) 7

Mountain States Tel. & Tel. Co. Vv. Pueblo of

Santa Ana, 472 U.S. 287 (1985) . nn... 7

Negonsott v. Samuels, 933 F.2d 818 (10th Cir.

i enuunnnunennes 2

Seymour v. Superintendent, 368 U.S. 351 (1962)... 4

(1)

Iv

Cases—Continued : Page

Solem Vv. Bartlett, 465 U.S. 463 (1984)... 17

State v. Rear, 452 N.W.2d 430 (lowa 1990) 16

State v. Hook, 476 N.W.2d 565 (N.D. 1991) 17

State v. Jackson, 16 N.W.2d 752 (Minn. 1944) 4

State v. Klindt, 782 P.2d 401 (Okla. Crim. App.

1989) . esain 4

State v. Kuntz, 66 N. w. 2d 531 (N. D. 1954). 4

State v. Nioce, 716 P.2d 585 (Kan. 1986) . 1

State v. Warner, 379 P.2d 66 (N.M. 1963) 4

State v. Youngbear, 229 N.W.2d 728 (lowa), cert.

denied, 423 U.S. 1018 (1975) 16

United States v. Bear, 932 F.2d 1279 (9th Cir.

ES Ae ae aS ee ee ee 9

United States v. Cook, 922 F.2d 1026 (2d _—

cert. denied, 111 S. Ct. 2235 (1991) . foe 17

United States v. John, 437 U.S. 634 (1978) Eas 4,7,8

United States v. Kagama, 118 U.S. 375 (1886)_. 8

United States v. McBratney, 104 U.S. 621 (1882). 3

Washington v. Confederated Bands & Tribes of

the Yakima Indian Nation, 439 U.S. 463

Statutes:

RRS Se A SEN Sa -F Meee age ee 4

Williams v. Lee, 358 U.S. 217 (1959) . 4,8

Williams v. United States, 327 U.S. 711 (1946) .. 4

Worcester Vv. Georgia, 31 U.S. (6 Pet.) 515

SEIT cateericnresemmencienieadenuhigtadibiadasastnantimmemainiigiabsicinnideadans x

Youngbear V. Brewer:

415 F. Supp. 807 (N.D. Iowa 1976) 16

549 F.2d 74 (8th Cir. 1977) ......16, 17, 18

Act of June 8, 1940, ch. 276, 54 Stat.249 5

Act of May 31, 1946, ch. 279, 60 Stat. 229 0 17

Act of June 30, 1948, ch. 759, 62 Stat.1161 15-16

Act of July 2, 1948, ch. 809, 62 Stat.1224.... 17

Act of Oct. 5, 1949, ch. 604, 63 Stat.705 17

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (Public

a 4, 5,17

Assimilative Crimes Act, 18 U.S.C.13 sacseeeciameea 9

Indian Major Crimes Act:

I 12

ee cieenisnsnsiscinnctscsmicsomesennensemetinndl 2, 3, 5, 6

Statutes—Continued : Page

18 U.S.C. 1152 ....., 4, 5, 7, 8, 9, 12, 18, 14, 15

BS USL. EGR ..........-------- iniaveeasanti ne 17

18 U.S.C. 3231 ....... See ee 7

18 U.S.C. 3243 speneeiipesensestsideueaeradiiaebiiaeidiementaiamaiaeeentamasshieel passim

Se ae eee 12

Le ae ee 12

TTT iis eanaatiineelnciriere lciiacaniatenia 17

Kan. Stat. Ann. § 21- 3414 CSE 6

Miscellaneous:

86 Cong. Rec. 5596 (1940) ................ eee. 12

H.R. Rep. No. 1999, 76th Cong., 3d Sess. (1940). 10, 11,

12, 13, 14, 15

H.R. Rep. No. 2032, 79th Cong., 2d Sess. (1946)... 17

H.R. Rep. No. 2356, 80th Cong., 2d Sess. (1948)... 16

30 Op. Or. Att’y Gen. 11 (1960) 4

S. Rep. No. 1523, 76th Cong., 3d Sess. (1940) i6, 11, 12,

13, 14

S. Rep. No. 997, 79th Cong., 2d Sess. (1946)... 17

Iu the Supreme Court of the United Staten

OCTOBER TERM, 1991

No. 91-5397

EMERY L. NEGONSOTT, PETITIONER

v.

HAROLD SAMUELS, WARDEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States.

STATEMENT

1. Petitioner Emery Negonsott is an enrolled mem-

ber of the Kickapoo Tribe in Kansas, a federally rec-

ognized Indian Tribe. In 1985, he was arrested by

the Brown County Sheriff, a state law enforcement

official, in connection with the shooting of another

Indian on the Kickapoo Reservation. Petitioner was

subsequently convicted in Kansas state court of ag-

gravated battery. The Supreme Court of Kansas af-

firmed, holding that the State had criminal jurisdic-

tion over the offense. State v. Nioce, 716 P.2d 585

(Kan. 1986) (Pet. App. 21-34).

(1)

2. Petitioner then filed the present habeas corpus

action in the United States District Court for the

District of Kansas, seeking a writ of habeas corpus.

He claimed that 18 U.S.C. 3243, which grants the

State of Kansas criminal jurisdiction over crimes by

or against Indians committed on Indian reservations

in Kansas, does not extend to aggravated battery. In

petitioner’s view, that crime, by virtue of being en-

compassed by the Major Crimes Act, 18 U.S.C. 1153,

remains subject to exclusive federal jurisdiction.

The district court rejected petitioner’s claim. In

the court’s view, 18 U.S.C. 3243 grants Kansas juris-

diction concurrent to that of the United States with

respect to all crimes, even those covered by the Major

Crimes Act. Pet. App. 35-43. The Court of Appeals

for the Tenth Circuit affirmed on the same ground.

Negonsott v. Samuels, 933 F.2d 818 (1991) (Pet.

App. 44-64). This petition for certiorari, in which

respondent has acquiesced, followed.

DISCUSSION

In our view, the court of appeals’ holding is clearly

correct. The pertinent federal statute—18 U.S.C.

3243—confers criminal jurisdiction on the State of

Kansas to prosecute Indians fer aggravated battery

and other major crimes committed on Indian reserva-

tions in Kansas. The Eighth Circuit, however, has

reached the contrary conclusion under a virtually

identical statute that confers criminal jurisdiction on

the State of lowa over the Sac and Fox Indian Reser-

vation in that State. A third identically worded stat-

ute confers criminal jurisdiction on North Dakota

over the Devils Lake Sioux Reservation. Resolution

of the basic question in this case—whether federal

jurisdiction over such crimes is exclusive or whether

the States enjoy concurrent jurisdiction—is of con-

siderable practical importance to both state and fed-

eral law enforcement authorities in those States. In

view of its importance, and because the Eighth and

Tenth Circuits have reached conflicting conclus‘ons

on the question, we agree with both petitioner and re-

spondent that review is warranted.'

1. a. The generally applicable framework govern-

ing criminal jurisdiction on Indian reservations is

well established. Under 18 U.S.C. 1152, crimes com-

mitted by or against Indians in Indian country are

subject to federal jurisdiction. However, the second

paragraph of Section 1152 expressly excludes offenses

committed by one Indian against the person or prop-

erty of another.’ Such offenses between Indians are

typically subject to the exclusive jurisdiction of the

Tribe concerned, except for offenses covered by the

Major Crimes Act, 18 U.S.C. 1153. The latter of-

fenses are subject to federal as well as tribal jurisdic-

tion. See Duro vy. Reina, 495 U.S. 676, 696-697

(1990).

This Court has held that federal jurisdiction over

those offenses committed by Indians that are covered

by 18 U.S.C. 1153 (the Major Crimes Act) is exclu-

1 Since filing his petition for a writ of habeas corpus, peti-

tioner has been released from custody and his sentence has

been discharged. The petition is not moot, however, because

petitioner was in custody when the petition was filed and he

continues to suffer collateral consequences from his convic-

tion. Carafas v. LaVallee, 391 U.S. 234, 237-238 (1968) ;

Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985) (collateral con-

sequences include possible use of conviction to impeach future

testimony and to prosecute petitioner as multiple offender).

* Offenses committed by one non-Indian against another

non-Indian are implicitly excluded from 18 U.S.C. 1152 under

United States Vv. McBratney, 104 U.S. 621 (1882). Those

offenses are instead subject to state jurisdiction.

4

sive of state jurisdiction. United States v. John, 437

U.S. 634, 651 (1978); see also Seymour v. Superin-

tendent, 368 U.S. 351, 359 (1962). The Court has

also repeatedly stated (albeit in dictum) that federal

jurisdiction over other crimes under 18 U.S.C. 1152

likewise is exclusive of state jurisdiction. Waulliams

v. United States, 327 U.S. 711, 714 (1946) ; Williams

v. Lee, 358 U.S. 217, 220 (1959); Washington v.

Confederated Bands &: Tribes of the Yakima Indian

Nation, 439 U.S. 463, 470-471 (1979). A number of

state courts have likewise so held. See State v. Klindt,

782 P.2d 401 (Okla. Crim. App. 1989); Arquette v.

Schneckloth, 351 P.2d 921 (Wash. 1960); In re Ap-

plication of Denetclaw, 320 P.2d 697 (Ariz. 1958);

State v. Kuntz, 66 N.W.2d 531 (N.D. 1954); see also

State v. Warner, 379 P.2d 66, 68-69 (N.M 1963)

(dictum); State v. Jackson, 16 N.W.2d 752, 754

(Minn. 1944) (dictum); 30 Op. Or. Att’y Gen. 11

(1960).°

Congress may, of course, alter these jurisdictional

arrangements. Indeed, Congress has done so. Public

Law 280 is the most familiar example. That statute

automatically conferred on certain States jurisdiction

over offenses involving Indians in Indian country.

The statute also authorized other States to assume

such jurisdiction. See Washington v. Confederated

Bands & Tribes of the Yakima Indian Nation, 439

U.S. at 471-474.

’JIn our amicus brief urging denial of the petition for cer-

tiorari in Arizona V. Flint, 492 U.S. 911 (1989), we took the

position that federal jurisdiction under 18 U.S.C. 1152 is

exclusive. We relied, inter alia, on the decisions cited in the

text; Public Law 280 (Act of Aug. 15, 1953, ch. 505, 67 Stat.

588) and its legislative history; and the background of special

statutes (including 18 U.S.C. 3243, at issue in this case) that

confer criminal jurisdiction on particular States.

5

Prior to Public Law 280’s enactment, Congress

passed a series of special statutes granting particular

States jurisdiction over some or all Indian country

within their respective borders. This case involves

one such statute, 18 U.S.C. 3243. Enacted in 1940,

the statute confers plenary criminal jurisdiction on

the State of Kansas over the four Indian reservations

within its borders. Act of June 8, 1940, ch. 276, 54

Stat. 249. We turn now to examine that statute.

b. Section 3243 provides in full:

Jurisdiction is conferred on the State of

Kansas over offenses committed by or against

Indians on Indian reservations, including trust

or restricted allotments, within the State of Kan-

sas, to the same extent as its courts have juris-

diction over offenses committed elsewhere within

the State in accordance with the laws of the

State.

This section shall not deprive the courts of the

United States of jurisdiction over offenses de-

fined by the laws of the United States committed

by or against Indians on Indian reservations.

The language of the first sentence of Section 3243

unambiguously confers criminal jurisdiction on Kan-

sas over all offenses (as defined by state law) com-

mitted by or against Indians on Indian reservations,

whether or not the offenses are otherwise subject to

18 U.S.C. 1152 or 1153 or to the jurisdiction of the

tribe concerned. See Pet. App. 50-51.

Petitioner does not dispute that the first sentence

of 18 U.S.C, 3243, standing alone, subjects him to

state jurisdiction. He contends (Pet. 7-8), however,

that insofar as his offense is concerned, the jurisdic-

tion granted by the first sentence is taken away by the

second. The second sentence preserves federal court

jurisdiction “over offenses defined by the laws of the

6

United States committed by or against Indians on

Indian reservations.” Petitioner argues that because

the Major Crimes Act includes the crime (aggravated

battery) of which he was convicted ‘—and that be-

cause federal jurisdiction under that Act ordinarily

is exclusive—the preservation of federal jurisdiction

in the second sentence of Section 3243 must be read

to retain the “exclusive” aspect of that jurisdiction

under the Major Crimes Act. In petitioner’s view, the

first sentence of Section 3243 can be read according to

its plain meaning only if Congress impliedly “re-

pealed” the Major Crimes Act. See Pet. 19-20. Peti-

tioner is wrong; he misapprehends the import of both

18 U.S.C. 3243 and the Major Crimes Act.

The text of Section 3243 as a whole demonstrates

that Congress granted Kansas complete criminal ju-

risdiction, over both major and minor crimes. Al-

though this interpretation eliminates the otherwise

exclusive nature of federal jurisdiction under 18

U.S.C, 1153 over major crimes committed by Indians

in Kansas, that was precisely the purpose of the first

sentence of Section 3243. The second sentence did no

more than preserve the subject matter jurisdiction of

federal courts over crimes defined by federal law. It

does not suggest that this jurisdiction, as so pre-

*The Major Crimes Act does not specifically mention bat-

tery, aggravated or otherwise. It does, however, include

among the listed offenses “assault to commit murder, assault

with a dangerous weapon, [and] assault resulting in serious

bodily injury.” 18 U.S.C. 1153. The Kansas statute that peti-

tioner was convicted of violating defines aggravated battery,

in part, as “the unlawful touching or application of force” to

another person “which either (a) [i]nflicts great bodily harm

upon him; or * * * (c) [i]s done with a deadly weapon, or in

any manner whereby great bodily harm * ** can be inflicted.”

Kan. Stat. Ann. § 21-3414 (1991).

7

served, is exclusive of state jurisdiction. Recognition

of jurisdiction in the state courts over crimes under

state law does not “deprive” the “courts of the United

States” of their “jurisdiction” over “offenses defined

by the laws of the United States.” °

Moreover, a construction of the second sentence of

Section 32438 that rendered federal jurisdiction ex-

clusive wherever conduct is made criminal by federal

law would conflict with the first sentence’s unqualified

grant of jurisdiction to Kansas. In contrast, constru-

ing the second sentence to preserve concurrent federal

authority over the same general subject matter best

comports with the canon of construction that full ef-

fect be given to all of the statute’s language, see

Moskal vy. United States, 111 S. Ct. 461, 466 (1990) ;

Colautti vy. Franklin, 439 U.S. 379, 392 (1979)—a

familiar canon that this Court has applied to statutes

affecting Indians. See Mountain States Tel. & Tel.

Co. v. Pueblo of Santa Ana, 472 U.S. 237, 239

(1985).

Nor does this interpretation work an “implied re-

peal” of the Major Crimes Act. In the first place,

there is nothing “implied” about the effect of 18

U.S.C, 3243 in this setting; state jurisdiction follows

from the express terms of the first sentence of Sec-

tion 3243. Moreover, it is not the Major Crimes Act

that precludes the exercise of state jurisdiction over

conduct by Indians that constitutes a federal crime

under that Act. The preclusion flows, instead, from

the general principle that States have no inherent ju-

risdiction over Indians in Indian country, United

States v. John, 437 U.S. at 651-653; Fisher v. District

5 Indeed, the subject matter jurisdiction of the federal

courts over federal prosecutions under the Major Crimes Act

or 18 U.S.C. 1152 remains exclusive under 18 U.S.C. 3231.

8

Court, 424 U.S. 382 (1976), and may exercise such

jurisdiction only where (as here) there is a clear

grant of authority by Congress. Williams v. Lee, 358

U.S. at 221 (“when Congress has wished the States

to exercise [criminal and civil adjudicatory juris-

diction] it has expressly granted [it to] them”);

Bryan y. Itasca County, 426 U.S. 373, 392 (1976).°

By virtue of that settled principle, Kansas would have

been without jurisdiction (prior to enactment of 18

U.S.C. 3243) to prosecute an Indian for a major

crime committed on an Indian reservation within its

borders even if hte Major Crimes Act had never been

enacted. United States vy. Kagama, 118 U.S. 375, 384

(1886); Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832); ef. Ex parte Crow Dog, 109 U.S. 556

(1883); The Kansas Indians, 72 U.S. (5 Wall.) 737,

755-756 (1867).

Finally, just as jurisdiction under the Major

Crimes Act ordinarily is exclusive of state jurisdic-

tion, federal jurisdiction under 18 U.S.C. 1152 over

other crimes committed by or against Indians in In-

dian country is also exclusive. See p. 4, supra. Ac-

cordingly, under petitioner’s view (that the second

sentence of Section 3243 renders federal jurisdiction

exclusive wherever it exists), the first sentence would

actually confer jurisdiction on Kansas only over those

offenses that are not also crimes defined by federal

law.’ In other words, Section 3243 would confer no

® Congress enacted Section 3243 specifically to grant Kan-

sas some measure of criminal jurisdiction. The question is

whether that grant includes major crimes as defined by fed-

eral law. That issue is quite different from the question in

United States v. John, supra, where the State was not acting

pursuant to a congressional grant of criminal jurisdiction.

7 Under petitioner’s view, the only offenses over which the

State obtained jurisdiction under 18 U.S.C. 3243 would be

9

concurrent jurisdiction at all. That view is contrary

to the explicit text of the Act.

ce. As shown above, Section 3243 by its terms con-

fers complete criminal jurisdiction on Kansas. We

therefore would not ordinarily find it necessary to dis-

cuss, much less rely on, the statute’s legislative his-

tory. See Davis v. Michigan Dep’t of Treasury, 489

U.S. 805, 809 n.3 (1989). However, because peti-

tioner argues that Section 3243’s legislative history

supports his interpretation of the statute, we think it

is appropriate to respond.

In our view, the legislative history of Section 3243

clearly confirms that Congress intended to establish

a regime of concurrent jurisdiction, not to preserve

exclusive federal jurisdiction over conduct made

criminal by federal law. The history shows this: (a)

prior to enactment of Section 3243, Kansas as a prac-

tical matter exercised jurisdiction over all crimes

committed by or against- Indians, regardless of

whether they were otherwise subject to federal juris-

diction; (b) the Indians in Kansas did not object to

those non-major crimes that are committed by one Indian

against another (which, by virtue of the second paragraph of

18 U.S.C. 1152, are ordinarily subject to the exclusive jurisdic-

tion of the tribe concerned)—and, perhaps, those offenses

defined by state law and assimilated into federal law by 18

U.S.C. 1152 and the Assimilative Crimes Act, 18 U.S.C. 13.

The Tenth Circuit has held that assimilated state crimes are

not “offenses defined by the laws of the United States” within

the meaning of the proviso to 18 U.S.C. 3243. See Jowa Tribe

of Indians Vv. Kansas, 787 F.2d 1434, 1439-1440 & n.3 (10th

Cir. 1986); cf. United States v. Bear, 932 F.2d 1279, 1281

(9th Cir. 1990). Under that view, state jurisdiction over such

offenses is exclusive, and the second sentence of Section 3243

preserves concurrent federal jurisdiction under 18 U.S.C. 1152

only over offenses that are independently defined by federal

law.

10

this regime, and in fact sought enactment of Section

3243 to clarify the legality of the State’s exercise of

jurisdiction; and (c) Section 3243 was intended to

confer on Kansas complete jurisdiction over all crimes

(as defined by state law) by or against Indians, while

retaining jurisdiction in federal courts over crimes

defined by federal law. See H.R. Rep. No. 1999, 76th

Cong., 3d Sess. (1940) (House Report); S. Rep. No.

1523, 76th Cong., 3d Sess. (1940) (Senate Report).

Both the House and Senate Reports consist almost

exclusively of a letter and memorandum from Acting

Secretary of the Interior Burlew commenting on the

proposal to confer jurisdiction on Kansas and the orig-

inal version of the bill intended to accomplish that

result. The Acting Secretary offered an alternative

version of the bill that took account of views he ex-

pressed in the letter and memorandum, and it was

this version that Congress enacted into law as Section

3243. Thus, the views of the Acting Secretary, who

headed the agency responsible for administering In-

dian Affairs, are of considerable relevance in constru-

ing Section 3243, Miller v. Youakim, 440 U.S. 125,

144 (1979), especially since the responsible congres-

sional committees adopted his views and proposal in

their reports.

The letter and memorandum explain that Kansas

then exercised jurisdiction over all crimes by or

against Indians. The Acting Secretary expressed the

view that without the exercise of jurisdiction by the

State, law enforcement on Indian reservations in Kan-

sas would have been inadequate, because existing fed-

eral criminal statutes “le[ft] some major crimes as

well as practically all minor offenses outside the juris-

diction of the Federal courts,” and because “[i]n the

case of the four Kansas reservations * * * no tribal

11

courts [had] existed for many years.” House Report

at 2; Senate Report at 2. As a practical matter, there-

fore, “offenses committed on these reservations and

involving Indians have been prosecuted in the State

courts, even where the criminal act charged consti-

tuted one of the major offenses listed in [the Major

Crimes Act].” House Report at 4 (emphasis added) ;

Senate Report at 3 (emphasis added).

The bill was proposed because questions had been

raised about “the authority of the State courts to

proceed in these cases,” House Report at 4; Senate

Report at 3, and the legislative history makes clear

that it was intended to ratify the then-existing regime

of de facto state jurisdiction. Indeed, according to the

Acting Secretary, the Indians themselves “[did] not

desire reestablishment of the tribal courts, but * * *

expressed a wish that the jurisdiction hitherto exer-

cised by the State courts be continued.” Jbid.* In-

asmuch as the State had exercised jurisdiction over

all offenses, including those defined as major crimes

under federal law, both the Executive and the Legis-

ative Branches plainly understood that the bill would

confer jurisdiction over all offenses defined by Kansas

law, whether or not those offenses were subject to

federal jurisdiction as well. The Acting Secretary of

‘he Interior made this point explicitly: “In short, the

* The Acting Secretary further noted that state prosecu-

tions—even for major crimes—“were had with the approval

of the tribes concerned, and the exercise of criminal jurisdic-

tion by the State courts was to their general satisfaction.”

House Report at 4; Senate Report at 3. Hence, the construc-

tion we urge is not in tension with the canon requiring liberal

construction of statutes in favor of Indians. See, e.g., Bryan

Vv. Itasca County, 426 U.S. at 392; Alaska Pacific Fisheries v.

United States, 248 U.S. 78, 79 (1918) ; Choate v. Trapp, 224

U.S. 665, 675 (1912).

12

enactment of [Section 3243] will merely confirm a

relationship which the State has willingly assumed,

which the Indians have willingly accepted, and which

has produced successful results, over a considerable

period of years.” House Report at 5; Senate Report

at 4.

Petitioner contends that an amendment of the bill

demonstrates that Congress intended that federal ju-

risdiction over offenses covered by the Major Crimes

Act would be exclusive. As originally proposed, the

bill provided for “relinquish[ment]” of “concurrent

jurisdiction” to Kansas, and specifically stated that

the Major Crimes Act, 18 U.S.C. 548 (1934)—as well

as 25 U.S.C. 217 and 218 (1934), the predecessors of

18 U.S.C. 1152—would be “modified accordingly.” See

86 Cong. Rec. 5596 (1940). Subsequently, each House

adopted a substitute version that contained substan-

tial revisions, including deletion of both the reference

to- “concurrent” jurisdiction and the explicit modifi-

cation of the Major Crimes Act. In light of those

revisions, petitioner argues that Section 3243, as

enacted, must be construed as not conferring concur-

rent jurisdiction and as not modifying the exclusive

aspect of federal jurisdiction under the Major Crimes

Act. Cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 442-

443 (1987).

Rather than buttressing petitioner’s position, how-

ever, the amendment supports our reading of Sec-

tion 3243. Petitioner fails to point out that the sub-

stitute version was proposed by the Acting Secretary

in order to express more accurately the legal situation

as it then existed and as it was “intended to be cre-

ated.” House Report at 3; Senate Report at 2. In

particular, because federal courts apparently had ex-

ercised jurisdiction only over major crimes, the Act-

ing Secretary thought that it was inaccurate to de-

13

scribe the bill as generally “relinquishing” ‘“concur-

rent” jurisdiction to Kansas; rather, in his view, it

conferred complete criminal jurisdiction on the State,

whether or not the federal government would also

have jurisdiction over the particular offense. He

explained:

The bill proposes to relinquish concurrent juris-

diction to the State of Kansas, intending thereby

to give the State jurisdiction of all types of

crimes, whether major or minor, defined by State

law. However, the Federal Government has ex-

ercised jurisdiction only over major crimes.

Therefore, -strictly speaking, this is not a case

of relinquishing to a State a jurisdiction concur-

rent with that of the United States, but a case

of conferring upon the State complete jurisdic-

tion, retaining, however, jurisdiction in the Fed-

eral courts to prosecute crimes by or against In-

dians defined by Federal law.

House Report at 3 (emphasis added); accord, Senate

Report at 2. The substitute bill the Acting Secretary

proposed (and Congress enacted) was intended to

make clear that Section 3243 would confer more than

whatever jurisdiction happened to be concurrent with

that of the United States, not to narrow its scope. See

Pet. App. 60-61; Jowa Tribe of Indians vy. Kansas,

787 F.2d at 1439-1440. As the court of appeals cor-

rectly noted, the “decision to excise the word ‘con-

current’ * * * was to clarify rather than to change

[the] substance” of what is now 18 U.S.C. 3243. Pet.

App. 61.°

* The Acting Secretary did not explain why his substitute

lacked a provision stating that the Major Crimes Act and

what is now 18 U.S.C. 1152 were “modified accordingly.” At

least two explanations are possible. First, because the sub-

14

The Acting Secretary’s explanation also makes plain

that the intent was only to ensure that “prosecution

in the Federal courts of those offenses which are now

open to such prosecution will not be precluded under

the bill in any particular instance where this course

may be deemed advisable.”” House Report at 5; Sen-

ate Report at 4. The obviovs corollary was that the

State would have jurisdiction in all cases.

Finally, petitioner seeks support for his view in

a letter from Representative Lambertson of Kansas

to the House Committee on Indian Affairs recom-

mending enactment of the proposed bill. See House

Report at 1-2. In that letter, Representative Lam-

bertson noted that “[t]he Government here relin-

quishes to the State full jurisdiction over the Indians

stitv' - version made clear that the State would have complete

jurisdiction and that the United States would retain whatever

jurisdiction it then had over offenses committed by or against

Indians (under the Major Crimes Act or what is now 18

U.S.C. 1152), there was no need to reiterate what the effect

on the latter statutory provisions would be. See Pet. App. 61

(“Reference to modification of the Major Crimes Act was

apparently dropped as unnecessary when the second sentence

of the Kansas Act was added instead.”). Second, the “exclu-

sive” nature of federal jurisdiction over offenses covered by

the Major Crimes Act and what is now 18 U.S.C. 1152 derived

not from those provisions standing alone, but from more gen-

eral principles of Indian law that rendered state law in-

applicable to matters involving Indians in Indian country.

The express conferral of criminal jurisdiction on Kansas in

the first sentence of Section 3243 was sufficient to displace

those general principles of preemption, and there accordingly

was no need to “modify” the Major Crimes Act or the prede-.

cessors of 18 U.S.C. 1152. In any event, any negative infer-

ence that might be drawn from the mere absence of an “ex-

press” modification provision is wholly insufficient to over-

come the clear import of the all-encompassing statutory text

and the legislative history.

15

for small offenses.” Jd. at 2. The negative implica-

tion, petitioner argues, is that Congress intended to

confer no jurisdiction over crimes included in the

Major Crimes Act. This is baseless. If anything, the

fact that Representative Lambertson understood Con-

gress to “relinquish” to Kansas “full” jurisdiction

over “small” offenses—with the ii plication that there

would be no federal jurisdiction over those offenses—

suggests that he believed the State would acquire only

partial (7.e., concurrent) jurisdiction over major

crimes. See Pet. App. 57-58."°

2. Eight years after enacting Section 3243, Con-

gress granted the State of Iowa criminal jurisdiction

over crimes committed by or against Indians on the

Sac and Fox Indian Reservation in Iowa. See Act of

June 30, 1948, ch. 759, 62 Stat. 1161. The Iowa Act

is identical to Section 3243 in all relevant respects,"

In stating that Kansas acquired “full” jurisdiction over

“small offenses,” Representative Lambertson may have been

referring to non-major crimes committed by one Indian

against another. Because such crimes are excluded from fed-

eral jurisdiction under 18 U.S.C. 1152 by the second para-

graph of that provision—and because the tribes concerned did

not have tribal courts that could exercise jurisdiction over

such crimes—Kansas acquired “full” jurisdiction over those

crimes under Section 3243.

"! The Iowa Act provides:

[J]urisdiction is hereby conferred on the State of Iowa

over offenses committed by or against Indians on the Sac

and Fox Indian Reservation in that State to the same

extent as its courts have jurisdiction generally over

offenses committed within said State outside of any

Indian reservation: Provided, however, That nothing

herein contained shall deprive the courts of the United

States of jurisdiction over offenses defined by the laws

16

and it was expressly patterned after Section 3243.

See H.R. Rep. No. 2356, 80th Cong., 2d Sess. 3

(1948). We therefore see no reason why the

identical language in the Iowa Act and Section

3243 should be interpreted differently. The Eighth

Circuit has concluded, however, that the proviso to the

Iowa Act preserves exclusive federal jurisdiction over

offenses covered by the Major Crimes Act. See Young-

bear v. Brewer, 549 F.2d 74 (8th Cir. 1977). In in-

terpreting the Iowa Act, the Eighth Circuit, adopting

the analysis of the district court in that case, relied

on the legislative history of Section 3243, which it

believed (largely for the reasons urged by petitioner

here) supported a finding of exclusive federal juris-

diction over major crimes. See 549 F.2d at 76; Young-

bear v. Brewer, 415 F. Supp. 807, 812-813 (N.D. Iowa

1976)."* As we have explained, that reading of Sec-

tion 3243’s legislative history is erroneous.

The interpretation of yet a third criminal statute

is implicated here as well. In 1946, Congress ex-

tended to the State of North Dakota jurisdiction over

crimes committed on the Devils Lake Sioux Reserva-

tion in language identical in all relevant respects to

of the United States committed by or against Indians on

Indian reservations.

62 Stat. 1161.

12 The Iowa Supreme Court recently adopted the Eighth

Circuit’s interpretation of the Iowa Act. See State v. Bear,

452 N.W.2d 430 (Iowa 1990). That tourt originally took the

view that the Iowa Act gave Iowa erclusive jurisdiction over

non-major crimes, and concurrent jurisdiction over major

crimes. See State v. Younqbear, 229 N.W.2d 728 (lowa), cert.

denied, 423 U.S. 1018 (1975). “Upon reexamination of the

applicable statutes,” however, the Iowa Supreme Court de-

cided that the Eighth Circuit’s Youngbear interpretation of

the Iowa Act is correct. State v. Bear, 452 N.W.2d at 433.

17

that of Section 3243 (and the Iowa Act). See Act of

May 31, 1946, ch. 279, 60 Stat. 229; S. Rep. No. 997,

79th Cong., 2d Sess. 2 (1946); H.R. Rep. No. 2032,

79th Cong., 2d Sess. 2 (1946). Application of the

North Dakota Act to crimes otherwise within exclu-

sive federal jurisdiction has not yet been definitively

determined by any court, state or federal. See State

v. Hook, 476 N.W.2d 565, 571 n.6 (N.D. 1991) (re-

serving the question of state jurisdiction over major

crimes). If the question were raised in federal court,

the Eighth Circuit’s Youngbear holding with respect

to the lowa Act presumably would control the inter-

pretation of the North Dakota Act, although the state

courts of North Dakota would be free to disagree.

Compare Solem v. Bartlett, 465 U.S. 463, 466 (1984)

(certiorari granted because federal and state courts

rendered conflicting interpretations of a statute affect-

ing state and federal criminal jurisdiction over the

Cheyenne River Sioux Reservation in South Dakota.) "

The very existence of separate statutes conferring

jurisdiction on particular States over Indian reserva-

‘8 Respondent cites two additional federal statutes granting

criminal jurisdiction to New York and California that are

similar to the Kansas Act. See Act of Oct. 5, 1949, ch. 604,

63 Stat. 705 (California); Act of July 2, 1948, ch. 809, 62

Stat. 1224, codified at 25 U.S.C. 232 (New York). The Cali-

fornia Act is no longer in force; in 19538, Public Law 280

granted California complete criminal jurisdiction over all

Indian country located within its borders. See 18 U.S.C. 1162.

Moreover, both the California and New York Acts differ in

one significant respect from those granting jurisdiction to

Kansas, Iowa and North Dakota: they lack a proviso ex-

pressly preserving federal jurisdiction. The Second Circuit

nonetheless has held that the United States retains concur-

rent criminal jurisdiction over Indian reservations in New

York. United States v. Cook, 922 F.2d 1026, 1032-1033 (2d

Cir.), cert. denied, 111 S. Ct. 2235 (1991).

18

tions within their borders indicates that this is not

an area in which congressional policy requires a uni-

form nationwide rule. Accordingly, the fact that the

Eighth and Tenth Circuits have reached different re-

sults under statutes conferring criminal jurisdiction

on different States does not in itself mean that the

Court is presented with the sort of circuit conflict

that warrants review.

We nonetheless agree with petitioner and respond-

ent that review is warranted. The lowa Act is idc.tti-

cal to and was explicitly patterned after the Kansas

Act; the Eighth Circuit in Youngbear relied on the

legislative history of the latter in construing the for-

mer; and the Tenth Circuit below in turn disagreed

with the Eighth Circuit’s reasoning in Youngbear.

This case therefore presents a square conflict regard-

ing the interpretation of identical statutory text.

Moreover, resolution of the issue of statutory con-

struction is a matter of some importance. The differ-

ing interpretations of identical statutory language

create doubts concerning the jurisdiction of three

States over crimes committed by or against Indians

on reservations within their borders. Law enforce-

ment responsibilities of federal authorities within

those States is correspondingly uncertain. Affirmance

of the Tenth Circuit’s judgment by this Court—which

we believe is the proper disposition—would necessar-

ily repudiate the Eighth Circuit’s holding in Young-

bear. The result would be to restore to Iowa the

jurisdiction that Congress plainly intended it to en-

joy, and to remove any doubts about North Dakota’s

jurisdiction. If, however, we are wrong on the merits

(and if federal authorities therefore have exclusive

responsibility for prosecuting major and other crimes

involving Indians on the affected reservations in all

three States), that responsibility should be made

19

clear, so that federal and state authorities may allo-

cate their investigative and prosecutorial resources

accordingly.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

WILLIAM K, KELLEY

Assistant to the Solicitor General

EDWARD J. SHAWAKER

KATHERINE L. ADAMS

Attorneys

JUNE 1992

uv. 8. Government printing orrice; 1992 312324 45454