Reply Memorandum — Littell v. Nakai

LEAFY. 4. | Office-Supreme Come, hs,

KUPH EWE COURT, U. FIEBR

| DEC2 1965

IN THE = F. DAVIS, CLERK

Supreme Court of the united States

Octoser TERM, 1965

No. 355

Norman M. Litre, Petitioner,

v.

RayMoNp NakKal

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

PETITIONER’S REPLY MEMORANDUM

FREDERICK BERNAYs WIENER,

1750 Pennsylvania Avenue, N. W.,°

Washington, D.C. 20006,

Counsel for the Petitioner.

Joun F. Doy1e,

206 Southern Building,

Washington, D.C. 20005,

Wiis H. Rexnguist,

807 Security Building,

Phoenix, Arizona 85004,

Of Counsel.

Press or Brron S. Apams, Wasuineron, D. C.

SS,

INDEX

CasEs: _- Page

' Arkansas v. Texas, 346 U.S. 368 ......:........... 5

Armour & Co. v. Wantock, 323 U.S. 126 ............ 6

Cohens v. Virginia, 6 Wheat. 264 ................. 6

Colliflower v. Garland, 342 F. 2d 369 .........:.... 7

Erie R. Co. v. Tompkins, 304 US. 64 .............. 5, 6

Federal Power Comm. v. Tuscarora Indian Nation,

eke ae eadendeeeses 6

Humphrey’s Executor v. United States, 245 U.S. 602 6

Ttttell v. Udall, 242 F. Supp. 635 .................. 3

Mississippi v. Johnson, 4 Wall. 475 ............246. 9

Talton v. Mayes, 163 U.S. 376 ......cccccccccccece 7

Udall v. Littell, 338 FP. 2d 537 2.0... ccc cccccccccce 3

Williams v. Lee, 358 U.S. 217 ........ 2c cceeeees 5, 6, 7

STaTures :

(1) United States Statutes:

Act of June 2, 1924, c. 233, 43 Stat. 253 ..........

Nationality Act of 1940, §§ 201(a) and (b), c. 876,

f SM a ee

i seers dhe heedddnsearrhecseoenene 2

8 U.S.C. §$§ aaa Ce ME see duadesenageee 3

FP OUR BOR Foc vestisiidededisaucs! of SNP 2

(2) Navajo Tribal Code Provisions

I Scie Sias sobs bndnbddeeneddeadeses 9

Bbw d edd cckdedsadinds déncuws cas ote 9

DE Sine cidaseted senhbbinns ckhstnanbe 9

I nce isha dat caste bbad amend kanes 8

nn idtdndeenddnaedanen neon tenetae ca 8

ee

. MiscELLayeovs :

Cohen, Handbook of Federal Indian Law (1945) 77. 2

Federal Indtam Law (1958) 114 ............+2----- 3

IN THE

Supreme Court of the United States

Ocroser Tro, 1965

No. 355

Norman M. Lrrren., Petitioner,

v.

Raymonp Naxkatr ©

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

PETITIONER’S REPLY MEMORANDUM

(ee

The memoranda filed by the United States as amicus

curiae pursuant to the Court’s invitation (A.C. Memo.)

and by the respondent at the Court’s direction (Br. Op.),

which assert divergent and indeed inconsistent reasons for

seeking to screen the ruling bélow from scrutiny here,

actually argue convincingly that the present petition for

certiorari should be granted.

2

For these documents make evident, far too evident, that

the decision sought to be reviewed impinges on the Navajo

Tribe’s right to counsel of its own choosing, since it im-

munizes the respondent’s interference with the functioning

of the Tribe’s lawyer, who was selected by the Tribe’s

governing body, and whose contract that body did not wish

to terminate; that the same decision renders remediless in

fact serious assaults upon the orderly processes of Indian

self-government; and, finally, that the same decision carves

out an exception in favor of Indian tortfeasors from a

general statute conferring jurisdiction on the courts of the

United States, in disregard of the settled principle that a

general statute in terms applying to all persons includes

Indians. Yet that decision rests on grounds that the amicus

is pointedly unwilling to accept, and is moreover sought by

the amicus to be defended on grounds never even suggested

in either of the two lower courts.

We think that, for reasons about to be summarily stated,

no decision so destructive in its effects and in its potentiali-

ties should be permitted to remain on the books in the

absence of scrutiny by this Court.

First. 1. By reason of the provisions of R. S. § 2103 as

amended (25 U.S.C. § 81; Pet. App. A10-A11), Indians

whether individuals or organized tribes are deprived of one

of the basic rights of citizenship, the right to counsel of

their own choosing. As the late Mr. Felix S. Cohen pointed

out in his Handbook of Federal Indtan Law (1945) 77,

‘‘The Appropriation Act of March 3, 1871 provided

* * * also * * * for the withdrawal from noncitizen

Indians and from Indian tribes of power to make con-

tracts involving the payment of money for services

relative to Indian lands or claims inst the United

States, unless such contracts should be approved by

the Commissioner of Indian Affairs and the Secretary

of the Interior. Since many of the grievances of the

Indians were grievances against these officers, the In-

dians were effectually deprived by thts statute of one

3

of the most. basic rights known to the common law, the

right to free choice of counsel for the redress of im-

juries. These prohibitions were amplified by the Act

of May 21, 1872.’? [Citing R. S. §§ 2103-2106, 25

U.S.C. §§ 81-84; italics added.]

The same passage and its supporting citations were

repeated verbatim in the Interior Department’s revision of

the Cohen treatise, Federal Indian Law (1958) 114.

The basic statutes remain on the books, notwithstanding

the circumstance that in 1924, more than 40 years ago, all

native born Indians were declared citizens of the United

States by the Act of June 2, 1924, c. 233, 43 Stat. 253, re-

enacted by §§ 201 (a) and (b) of the Nationality Act of

1940, c. 876, 54 Stat. 1137, 1138, and now contained in 8

U.S.C. §§ 1401(a) (1) and (2).

2. As the record of the present controversy indicates, and

that includes (R. 14-28) the related District of Columbia

litigation against the head of the Indian Department (Udall

v. Littell, 338 F. 2d 537 (D. C. Cir.), Pet. App. A16-A26, ;

Littell v. Udall, 242 F. Supp. 635 (D.D.C.), Pet. App. A27-

A96), the present petitioner is General Counsel of the

Navajo Tribe of Indians pursuant to a contract made with

that tribe’s governing body, the Navajo Tribal Council,

which contract together with twelve amendments thereto

had been duly approved pursuant to the statute.

That contract was sought tobe terminated, not by the

Navajo Tribal Council, which alone had power to do so

pursuant to its terms (242 F. Supp. at 638, Pet. App. A32;

Fdgs. 6-9, 242 F. Supp. at 652-653, Pet. App. A61-A62;

Conc. 45, 242 F. Supp. at 668, Pet. App. A92-A93), but

formally by the head of the Indian Department, action

judicially held to have been without warrant of law (Udall

v. Littell, Littell v. Udall; both supra), and then informally

by the present respondent, in ejecting the Tribe’s General

Counsel from a meeting of the Council, action that was ap-

4

proved, and understood by the Indians to have been ap-

proved, by representatives of the Indian Department.’

That these interferences were not designed ‘‘to

strengthen tribal self-government’’ (A. C. Memo. 3) is

plain; the head of the Indian Department ‘‘directed his

Solicitor to prepare new memoranda looking to termina-

tion of the plaintiff’s contract by the Secretary without ac-

tion by the Navajo Tribal Council. This direction was “

impelled by at least two factors: (1) plaintiff’s refusal to

resign, and (2) the realization that a majority of the

Navajo Tribal Council were favorable to the plaintiff and

* would not vote to terminate his contract’’ (Fdg. 36, 242

F. Supp. at 657, Pet. App. A69-A70).?

1 See Fdgs. 92-93, 242 F. Supp. at 664, Pet. App. A85:

**92. On December 10, 1963, Chairman Nakai ordered the

plaintiff to leave the Navajo Tribal Council meeting, and di-

rected the sergeant-at-arms to remove him if necessary. Plain-

tiff then left the meeting. During .the process of ejection,

Zimmerman and the Bureau of Indian Affairs representatives

sat by silently. The members of the Tribal Council regarded

this silence as tantamount to approval, inasmuch as in the

past Bureau representatives had always injected themselves

into the discussions whenever they considered that an irreg-

ularity was taking place.

**93. On December 11, 1963, after plaintiff had been ejected

from the Council Meeting, Zimmerman said to Councilman

Wauneka, in substance, ‘‘Now you see that the Secretary of

“ the Interior cannot be pushed around.’’

2 This finding is supported, not only by Fdg. 24 (242 F. Supp.

at 655; Pet. App. A66-A67), but;»preeminently, by the testimony

of the Solicitor on cross-examination (Tr. 1344) :

‘“*Q Your first recommendation was that he [the Seeretary]

recommend termination toe the Tribal Council, wasn’t it? bs

‘‘A Yes, indeed. I asked Mr. Nakai [the respondent here]

to get the Tribal Council to terminate it.

**Q. What did Mr. Nakai say?

‘*A He said he didn’t have the votes.”’ "

5

In short, as the District of Columbia findings, carefully

formulated after a plenary trial that lasted two full weeks,

clearly show, it was not simply this petitioner whose rights

were infringed by the parallel if not indeed concerted ac-

tions of the respondent Nakai in conjunction with the head

of the Indian Department, it was the Navajo Tribe of

Indians whose determination expressed through its govern-

ing body to keep the General Counsel they had themselves

selected that has been hampered. It .is the Tribe’s right

to counsel of their own choosing that is in fact infringed—

even though in the present Gase, where the petitioner is as-

serting only his own interest in the relationship, they are

not and need not be a party (Arkansas v. Texas, 346 U.S.

368, 369-370). It is the Tribe’s processes of self-govern-

ment that are being flouted. All too plainly, those processes

are not being defended or protected in this proceeding,

either by the respondent Chairman, or by the officer of the

United States primarily charged with their protection—or

by the position of amicus curiae.

Consequently, viewing the controversy in its entirety,

the objective observer may therefore well ask, Quis cus-

todiet tpsos custodes?

Second. The memorandum of amicus curiae pointedly

fails to support the principal ground on which the court

below rested its decision, all but abandons the arguments

made by amicus in the court below, makes new conten-

tions not heretofore presented either to the district court

or to the court of appeals—and in general is far more

notable for what it does not say than for what it does.

1. Perhaps most significant is the circumstance that the

amicus curiae makes no effort whatever to support the

ruling below on the principal ground thereof (Pet. App.

A7), which was the notion that jurisdiction fails because

of the emanations of Erie R. Co. v. Tompkins, 304 U.S.

64, viz., that since petitioner could not sue in a State court

by reason of Williams v. Lee, 358 U.S. 217, ergo, he cannot

6

sue in a Federal court. Interestingly enough, respondent

similarly makes no effort to support this distinctly weird

application of the Frie doctrine.

2. It is also significant that although the amicus curiae

admits (A.C. Memo. 5) that ‘‘To be sure, the’ general

diversity of citizenship statute (28 U.S.C. 1332), on its

face, covers this case,’’ it never once makes mention of

the principle that ‘‘it is now well settled by many de-

cisions of this Court that a general statute in terms ap-

_- plying to all persons includes Indians and their property

. interests.’”” Federal Power Comm. v. Tuscarora Indian

Nation, 362 U.S. 99, 116. Nor does respondent show any

awareness of that principle.

3. The reliance of both our opponents on Williams v.

Lee, 358 U.S. 217 (A.C. Memo. 3, 4, 5, 6, 7; Br. Op. 45,

7, 8) is plainly misplaced. All that was decided there,

as the record and the opinion in that case clearly show,

was that the State courts had no jurisdiction of a white

man’s claim against an Indian in the absence of Con-

gressional consent. Here the issue concerns Federal juris-

diction under a Congressional grant of power. No doubt it

still needs to be reiterated (Armour & Co. v. Wantock, 323

U.S. 126, 132-133; Humphrey’s Executor v. United States,

295 U.S. 602, 626-627; Cohens v. Virginia, 6 Wheat. 264,

399) that the language of this Court’s opinions must be

read in the light of the facts of the case under discussion.

4. Moreover, while respondent argues (Br. Op. 2) that

( the present case ‘‘involves no more than a matter of juris-

\_ diction of a federal court to consider a controversy be-

tween an Indian and non-Indian,’’ the amicus in this

Court substantially deviates from that proposition, which

it urged in the court below. There it argued lack of juris-

diction (see Pet. 8 for the detailed contentions made). Now,

however, it all but concedes jurisdiction, and suggests that

such jurisdiction be declined for reasons of asserted policy

7

(A.C. Memo. 6-7), an argument never even iutimated in

either court below (R. 41-44; Pet. 8). Thus the present

petitioner, seeking relief against a Tribal officer acting

outside the scope of Tribal authority has been met, not

with opposition on the part of the United States founded

on a consistent principle, but with contentions whose

only common thread is, all too obviously, sheer expediency.

5. Up to now, the functioning of Tribal courts has never

been held to divest Federal courts of power to assume

jurisdiction of Indian cases otherwise within their statu-

tory competence, as two cases, neither of them cited either

by the amicus or by the respondent, plainly show.

In Talton v. Mayes, 163 U.S. 376, this Court assumed

that a Federal court had power to consider a writ of habeas

corpus brought to test a judgment of conviction in a

criminal proceeding in Tribal courts.* And, only this year,

the court below reversed a judgment that dismissed for

lack of jurisdiction a petition for habeas corpus brought

by a woman who had been sentenced to confinement for

contempt of the order of a Fort Belknap Tribal Court.

Colltflower v. Garland, 342 F. 24 369. That, plainly enough,

was a proceeding beyond the competence of a State court

under Wiliams v. Lee properly applied, yet the Ninth

Circuit did not agree with the decision of the district court

that remitted Mrs. Colliflower to whatever remedies might

be available to her in the Tribal courts.

6. The insistence of amicus curiae that the Tribal court

remedy is adequate (A.C. Memo. 3, 7-8), even though the

judges of that court are appointed by the respondent chair-

® Held, on the merits, that the appellant could not complain that

the indictment pursuant to which he was tried and sentenced to be

hanged in a special Supreme Court of the Cherokee Nation had

been found by a grand jury composed only of five members, inas-

much as the Fifth Amendment does not apply to Indian courts.

8 ’

man, not only fails to carry conviction—it is argued only

in a footnote (A.C. Memo. 7, note 9), and the Tribal Code

provisions governing the appointment of the judges (Pet.

App. A14-A15) are not included among the Code provi-

sions set forth at A.C. Memo. 9-12—but its argument, like

that of the respondent on this issue (Br. Op. 4-5), over-

looks two vital factors that underscore the inadequacy of

the asserted Tribal Court remedy. One of these factors

is factual, the other is legal.

a. Sections 381 and 386 of Title 7 of the Navajo Tribal

Code provide as follows: _—

“$381. Court rules; authority to adopt

‘‘(a) A majority ofthe judges of the Trial Court

of the Navajo Tribe may adopt rules of pleading, prac-

tice, and procedure applicable to any or all proceed-

ings in the Trial Court and the Court of Appeals of the

Navajo Tribe. In addition, they may adopt uniform

rules for the admission of evidence and may require

the use of standard forms for pleadings, motions and

other papers filed in court by litigants, as well as for

judgments, writs, and court orders.

*¢(b) Pending the adoption of such rules, and as to

all matters not covered in such rules, the practices

and procedures heretofore obtaining in the Navajo

Courts of Indian Offenses shall be followed in the

Trial Court and Court of Appeals of the Navajo Tribe.

‘*(c) No rule adopted by the judges shall be effec-

tive until reviewed by one of the Tribal attorneys

and approved by the Chief Justice.”

- cd * & y *€

“$386. Attorneys; right of representation: appointment

of prosecutor

‘‘Professional attorneys shall not appear in any

proceedings before the Court of the Navajo Tribe un-

less rules of court have been adopted as set forth in

section 381 of this title prescribing conditions govern-

ing their admission and practice before the court.

.9

Every defendant shall have the right to have some

member of the Tribe represent him and in the event

he has no such representation, a representative may

be appointed by the judge. The judge may appoint

a member of the Tribe as prosecutor.’’

In fact, no rules of any kind have been adopted. Conse-

quently if the present controversy were to be remitted to

the Navajo Tribal Court, which in the view of the re-

spondent and of the court below is the only tribunal com-

petent to hear it, and which in the view of amicus curiae

is the preferable forum for its resolution, petitioner would

be deprived of any right to counsel, and would be obliged

to proceed either pro se or through an attorney in fact-not

learned in the law. d

Neither of the parties who have so vigorously opposed

petitioner in the present litigation have yet undertaken to

demonstrate how and why such a proceeding constitutes

a remedy that is adequate in fact.

b. Nor would a proceeding in the Navajo Tribal Court

be adequate in law.

The Chairman of the Navajo Tribal Council appoints the

judges. 7 N.T.C. §§ 61, 121, 181; Pet. App. A13-A15. How

then can those judges exercise any jurisdiction over him?

The case of Mississippi v. Johnson, 4 Wall. 475, strongly

suggests, if indeed’it does not hold, that they cannot.

CONCLUSION

The ruling below strikes mortal blows at Indian self-

government and at the right of an Indian tribe to retain

counsel of its own choosing, and, by effectually immunizing

Indian tortfeasors from Federal accountability, casts a

cloud over the powers of courts of the United States. No

decision with such obviously disturbing and indeed de-

moralizing consequences should be permitted to stand

7

~

~

‘

10

x

without review by this Court. The present petition for a

writ of certiorari should therefore be granted.

Respectfully submitted.

FREDERICK Bernays WIENER,

: 1750 Pennsylvania Avenue, N. W.,

2), Washington, D.C. 20006,

Counsel for the Petitioner.

Joun F. Dovy1z,

206 Southern Building,

Washington, D. C. 20005,

Wuuum H. Rexnquist,

807 Security Building,

Phoenix, Arizona 85004,

Of Counsel.

December 1965.