# Amicus Curiae Brief — Negonsott v. Samuels

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 99

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0289%3A04. Public record. Not legal advice.