Warren E. Burger: We will hear arguments first this morning in United States against Grace. And before we hear the arguments, let me announce that Justice Brennan is unavoidably absent, attending the funeral of a member of his family, his brother. But he will participate in this case. Mr. Solicitor General, you may proceed whenever you are ready.
Rex E. Lee: Mr. Chief Justice, may it please the Court: At issue in this case is the constitutionality of 40 U.S.C. Section 13k which prohibits picketing, leafletting, and demonstrating in the Supreme Court building and on its grounds. A related statutory section, 13p defines the Supreme Court grounds as extending to the curb of each of the four streets enclosing the block on which the building is located. The Appellees, Zywicki and Grace, after making several attempts between May of 1978 and March of 1980 to distribute leaflets or demonstrate with a sign on the Supreme Court grounds, and on each occasion being informed by Supreme Court police officers that the conduct was prohibited, brought this action seeking a declaratory judgment that Section 13k's ban is unconstitutional. The District Court dismissed their action, and the Court of Appeals by a two-to-one decision held the statute unconstitutional on its face. Section 13k is a content-neutral congressional restriction on a place within which one manner of First Amendment activity, demonstrating and leafletting, may occur. This Court made it clear in Heffron versus Krishna Consciousness that time, place, or manner restrictions have been upheld providing three criteria are satisfied. They are: first, that it must be content-neutral; second, that it must serve a significant governmental interest; and third, that it leaves open ample alternative channels for communication. This statute clearly applies to all demonstrating and leafletting activity without regard to content. The remaining issues therefore concern the significance of the governmental interests and the adequacy of alternative channels for communication.
William H. Rehnquist: Generally, do you think that a regulation which in effect says no time, no place, no manner can really be called a time, place, and manner regulation?
Rex E. Lee: Clearly, where it leaves open, if that is the reason for the alternative... adequacy of the alternative channels inquiry. Just as in Greer versus Spock, there was no opportunity for political advertising or political activity within the military, for instance.
William H. Rehnquist: Well, I for one wouldn't think of Greer versus Spock as a time, place, and manner restriction. I think of it as a no-public-forum case.
Rex E. Lee: Well, it... it may be... it may be that in addition. But the no-public-forum concept is the notion that there are certain kinds of places where certain kinds of activity are not to be permitted. And this is not a restriction on all types of First Amendment expression. It is a restriction on one type of expression; namely, picketing, leafletting and demonstrating within an identified place, the same as you had in Heffron and in Greer versus Spock and in Grayned versus City of Rockford. So that what is brought into place so long as it is content-neutral is the consideration of the comparative interest of the government on the one hand in identifying a certain limited place in which one manner of restriction is to be upheld, and also the alternative means of communication. With regard to the congressional objective, the Court of Appeals acknowledged that the government does have a substantial interest in restricting picketing and other forms of expression in or near courthouses, but concluded that these legitimate concerns are fully addressed by another statute, 18 U.S.C. Section 1507, which prohibits picketing or parading in or near any federal courthouse with the intent of influencing a judge, juror, witness, or court officer. The Court of Appeals reasoning that Section 13k is outside Congress' constitutional authority because its purposes are adequately accomplished by another statute is flawed in several respects. The first is that it is a non sequitur. I know of no authority, and the Court of Appeals certainly suggested none, to support the proposition that the Constitution prohibits Congress from enacting two separate statutes that address the same problem in overlapping ways. Indeed, that proposition is squarely rejected by this Court's holding in O'Brien, United States versus O'Brien, that the existence of a statute prohibiting non-possession of a draft card did not interdict an overlapping statute prohibiting mutilation. Second, the Court of Appeals premise is in fact incorrect. It is true that Section 1507 overlaps one of Section 13k's purposes; namely, attempts to influence the courts' decisions. But Section 13k also reaches another congressional objective that is not covered by Section 1507 but is equally legitimate; that is, protection against the appearance of impropriety, against the inference that the processes of the Nation's highest Court are or may be influenced by demonstrators or leafletters. Section 13k stands as a congressional assurance to the people of this Nation--
Thurgood Marshall: Well, does the statute do that, or the person who pickets do that?
Rex E. Lee: --It is just--
Thurgood Marshall: What... what infers that this Court would be influenced by one person holding a sign?
Rex E. Lee: --The inference against which Congress may legitimately protect is the inference that would be drawn by the people that because of the mere existence of picketers on the Supreme Court grounds, that the Court's decisions are in fact influenced by that kind of process. It--
Thurgood Marshall: Well, is that what Congress has said?
Rex E. Lee: --What Congress has said is that picketing and demonstrating activity within the narrow space of the Supreme Court block is incompatible with the traditional purposes for which this Court is to be used. Among the considerations that Congress could properly have taken into... into account were the same consideration that this Court relied upon in Cox versus Louisiana, and I am quoting, that "A state may protect against the possibility of a conclusion by the public that the Judge's action was, in part, a product of intimidation and did not flow only from the fair and orderly working of the judicial process. " Significant in that respect, Justice Marshall, in our view, is the distinction between the holding in Cox and that in Edwards versus South Carolina. Those two cases were handed down within just a couple of years of each other. They involved remarkably similar demonstration-type activities, one of which was held constitutionally protected and the other not. There are only two significant differences so far as I am aware. One is the difference between the places where the two demonstrations occurred. The state capitol grounds in Edwards and the courthouse grounds in Cox. Demonstrations on the grounds of an elected legislative body are not only compatible with the legislative function, they reflect the fact that in our representative system of government the pressure of popular opinion is properly brought to bear on legislative policy makers. By contrast, as this Court observed in Cox, government may protect not only against such pressure in fact being brought against the courts, it may also protect... and this is a quote from this Court's opinion in that case... "the judicial process from being misjudged in the minds of the public. " And as this Court said just last term in Clements versus Fashing, that whereas a legislator will vote with due regard for constituent views, it is a serious accusation that a judge made a politically motivated decision.
John Paul Stevens: Mr. Solicitor General, how can that interest justify prohibiting the leafletting in this case involving some Central American political situation?
Rex E. Lee: That is precisely my point, Justice Stevens. It is the distinction between activity which is directed toward the Court and its activities, which wouldn't--
John Paul Stevens: But that leafletting couldn't even affect the appearance, which is your present justification, I understand.
Rex E. Lee: --No, but it could affect the appearance, because permitting the leafletter and the demonstrator, the sign carrier and the leaflet distributor on the grounds of the court--
John Paul Stevens: Just confine it to the leafletter about South American politics, where you have no cases--
Rex E. Lee: --Whether it is about South American politics or whatever, the mere presence on the grounds of that person engaging in that kind of activity leads to a possible inference that that kind of activity may influence the Court's decisions, because passersby, observers of that activity, may very well not read what is in fact on the leaflet and only draw the inference that leafletting is in fact occurring and may have an influence on the Court's decision, regardless of the content. It's the speech-plus kind of notion that... that this Court has recognized in a number of contexts.
John Paul Stevens: --Well, if that's a sufficient justification, I suppose the statute could extend across the street, too.
Rex E. Lee: The matter of linedrawing is a difficult one. And it could extend across the street. And your point, of course, illustrates just how narrow really is the disagreement between the government and our opponents, because everyone agrees, I take it... the Court of Appeals, the Appellees, and the Amicus... that Congress could properly prohibit any kind of leafletting or other activity within the building itself. So that the only spatial issue that we're talking about in the protection of this kind of interest is whether you can extend it, whether Congress can extend it, from the edge of the building to the edge of the curb. Now, it could, of course, be extended across the street, which would make it... and in my opinion, that would also be constitutional... but those kinds of lines are the kinds of lines that are traditionally drawn by legislatures and they reflect the kind of policy kind of judgment that we have traditionally entrusted to the legislatures.
John Paul Stevens: Mr. Solicitor General, they haven't had to raise it in this case. You're talking about within the building, but is it in your mind perfectly clear that the statute could prohibit the wearing of a campaign button within the building, for example?
Rex E. Lee: I have some question of whether--
John Paul Stevens: And that statute may do that.
Rex E. Lee: --Yes. I have some question whether the wearing of a campaign button would actually come within the strictures of the statute itself. If it simply happens to be something that is a matter of the individual's apparel and is not done in a demonstrating kind of fashion, then it might not come within the... within the... within the scope of the statute.
Sandra Day O'Connor: That touches, does it not, on another argument raised by the Appellees, which is the argument that the statute is unconstitutionally vague, in any case?
Rex E. Lee: Yes. And I think that that one, Justice O'Connor, for reasons that... I think that that one has been laid to rest by this Court's decisions over a period of time from Broderick against Oklahoma and culminating with last term's decision in New York versus Ferber. Certainly, the disparity between the clearly prohibitable activity on the one hand and the arguably protected activity on the other in this case is much lesser than it was in New York versus Ferber. And as I read that case, this Court said in very clear terms that what you take into account is the comparison between the legitimate scope, the legitimate sweep of the statute, and the possible impermissible applications. And that so long as the impermissible is not substantial, then you do not reach the constitutionality of a hypothetical case in the process of deciding the constitutionality of the statute on its face.
Thurgood Marshall: Mr. Solicitor General, is there any other building in this city that has this special protection?
Rex E. Lee: To my knowledge, there is not, Justice Marshall.
Thurgood Marshall: Well, how do you single this one out?
Rex E. Lee: Because that is in its very nature the kind of judgment that we entrust to legislatures for several reasons as a matter of linedrawing. At the end of the day it is a judicial judgment. But as this Court said initially in Grayned versus City of Rockford, the question is whether the particular type of expression is compatible with the purpose of the particular place in which it occurs at a particular time. The inquiry then is whether the expression activity is or is not compatible with the purpose of the particular place. Now, how and by whom is this issue of compatibility to be resolved? At the end of the day it is a judicial decision because it is an issue on which the constitutional holding turns. But it is, I think, significant in this respect, that the restriction in the Cox case, in Grayned, and in Greer, all represented specific particularized determinations by the authorized policy makers concerning that issue of compatibility, concerning the compatibility of demonstrations with the particular purposes for which a particular place was intended. The statute in Cox, for example, dealt specifically with picketing near a courthouse. That was the legislative determination that was involved in that case. The anti-noise ordinance in Grayned prohibited disruptive noise on the school ground. And the regulation in Greer pertained to one particular military reservation. Now, compare that with Edwards versus South Carolina. The law allegedly violated in Edwards versus South Carolina was a breach of the peace statute which contained no legislative judgment concerning whether demonstrations were compatible with the grounds surrounding a legislature. Now, that is not to say that the legislative determination is conclusive, because it is not. But neither is it irrelevant. As this Court observed in Grayned, a precise statute gives this Court the assurance that the legislature has focused on the First Amendment interests and has determined that other governmental policies compel regulation. The reason was best explained, perhaps, by Professor Kalven, that in the difficult balancing processes that these cases force upon the Court, it has the benefit of a council of a deliberate, specific, and relevant legislative judgment. The legislative judgment underlying Section 13k is likewise deliberate, specific, and relevant, and it is that picketing, demonstrating, and leafletting on the Supreme Court grounds are incompatible with the use to which that particular area should be put; specifically, the prevention of the public perception of impropriety in the judicial process. Let me say just a word about the adequacy of alternative channels for communication. The impact of this statute on the Appellees' legitimate First Amendment interests is really quite minimal. In Greer versus Spock the Court upheld a ban on partisan political speeches and demonstrations within a military reservation, observing that the people at Fort Dix could attend political rallies out of uniform and off base. There were other means for the expression of that particular kind of political communication. And similarly, the Heffron opinion stressed alternative means and places for the practice of Sancratan, which was the religious objective in that case. These alternatives did not represent the demonstrators' first choices, but in each of those cases the place restriction was upheld and in each the disparity between the demonstrators' first choice and the alternative was, if anything, greater than in this case. All that Section 13k requires is that the demonstrators move not off the... off base and out of uniform, many miles away, but 20 feet farther away, clearly a lesser spatial sacrifice than was involved either in Greer or Heffron. And this illustrates--
Thurgood Marshall: Well, those people couldn't have come in here and talked to us.
Rex E. Lee: --Well, even the Court of Appeals and--
Thurgood Marshall: I am not talking about the Court of Appeals, I am talking about my own opinion.
Rex E. Lee: --Well, of course. It... this statute has nothing to do with voluntary conversations that members of the Court might choose to have with any person.
Thurgood Marshall: I also would not go to one of their meetings, either, I give you my word.
Rex E. Lee: I understand. The narrowness of the disagreement between our position and that of the Appellees demonstrates that the final matter is really one of linedrawing, that it is the kind of linedrawing that lies within the congressional objective, and that if in the interest of preserving the appearance of military propriety, which was one of the objectives that was upheld in Greer versus Spock, is proper, then certainly a congressional objective should be similarly upheld.
John Paul Stevens: Mr. Solicitor General--
Rex E. Lee: Yes.
John Paul Stevens: --may I ask one other question--
Rex E. Lee: Yes.
John Paul Stevens: --on this appearance point? In your jurisdictional statement you pointed out that the disqualification statute provides that we should not sit in a case in which our impartiality might reasonably be questioned. And I wonder... and the other side has suggested that that statute might apply to at least some members of the Court... I wonder if you have anything further to say on that subject other than what you have said on it.
Rex E. Lee: Only this, Justice Stevens... I guess two things. One is, we know of no reason why any member of the Court should be recused. In our view, there is no closer interest of any member of the Court that is involved in this case than would be involved in a case concerning the Court's jurisdiction, the kind of issue that the Court is called upon to pass on with some frequency; and secondly, that the strong congressional policy reflected in 28 U.S.C. Section 1252, that the constitutionality of congressional statutes be decided by this Court should counsel against disqualification. And for that reason, we know of no reason that any member of the Court should be disqualified. I would like to reserve the rest of my time for rebuttal.
Warren E. Burger: Very well, Mr. Solicitor General. Mr. Graber.
Sebastian K.D. Graber: Mr. Chief Justice, and may it please the Court: The issue in this case is whether pristine First Amendment activity may be absolutely forbidden anywhere on the grounds of this Court despite the fact that such expression is not basically incompatible with the normal uses of the sidewalk that surrounds the Court, and despite the fact that the manner of expression in which my clients were engaged... that is, dissemination of printed matter... is allowed on the sidewalks surrounding the Court, which is to say that the Washington Post is allowed to disseminate its particular views through its newspaper. And we submit that the statute at issue is totally unnecessary to preserve the integrity of this Court and that Congress has specifically addressed the concerns of the appearance of justice when it promulgated 1507 and made a specific and considered legislative judgment which is reflected in the legislative history of 1507, that upon a balancing of interests certain speech could be prohibited; namely, speech which is directed toward influencing the Court. And we submit, as the Court of Appeals found, that 1507 amply protects the appearance of justice interests. Moreover, we would point out that Section 13k was not passed by Congress, at least as reflected in the legislative history, based on the assumption that some protection was needed beyond that provided by 1507. In fact, 13k was enacted prior to promulgation and enactment of 1507. Both statutes were considered by the same Congress, the 81st Congress, in 1949. However, examination of the legislative histories, which we detail in our briefs, reveals that 13k was really a housekeeping measure that in 1949 for some reason the legal counsel to the District of Columbia determined it no longer possessed authority to commission special officers to police this Court. At that time, the marshal of this Court went into conference with the Court and consulted apparently with legislative counsel to the House of Representatives, and the legislative scheme which was modeled after the scheme applying to the Capitol was enacted. And 13k virtually identically tracks the language of the Capitol statute, 193g, which was invalidated as being spatially unconstitutional in the Jeannette Rankin case. Now, Mr. Lee has pointed out that the test articulated by this Court in Grayned should be applied to this case. And we agree with that. And that test is whether the manner of expression is basically incompatible with the basic and normal use of the area in which the expression takes place. And we respectfully submit that a lone leafletter or a lone sign holder who is expressing their views on this Court in a peacable, silent, and orderly manner is not doing something that is basically incompatible with the normal use of the sidewalk. Now, the government would have the Court hold that the grounds of the Court are more akin to a military base as in Greer, or a prison as in Adderly, than the public sidewalk that it actually is. As the Court I am sure is aware, there is a bus stop outside and tourists come to the Court. The sidewalk is basically like any other sidewalk save for the fact that it borders this Court. Now, the government also states that this is a time, place, and manner restriction. However, as Mr. Justice Rehnquist I believe pointed out, it is difficult to categorize this statute as a time, place, and manner restriction, since it totally forbids any expressive activity on the grounds of this Court. Now, in Heffron the Court held that the statute at issue was the time, place, and manner restriction, pointed out that the members of the Krishna sect were not totally forbidden from reaching their intended audience but rather, like all other commercial and other enterprises at the state fair, were confined to a particular area on the state fair grounds and in an area where the public was expected to pass. Moreover, the Court noted that members of the Krishna sect were free to walk around the court... excuse me, the state fair grounds and orally proselytize their view without restriction.
Byron R. White: Mr. Graber, would you be here if the statute just forbad what it forbids now on the... inside the building or on the steps? What if it permitted... treated the sidewalks like any other public sidewalk?
Sebastian K.D. Graber: We would have no quarrel with that. Obviously, any party--
Byron R. White: Well, why should the statute be held unconstitutional on its face then?
Sebastian K.D. Graber: --Because the statute is not, we submit, subject to a limiting construction, both because of its vagueness... namely, the time to define--
Byron R. White: Well, I know, but what... this is a federal statute, and it's a federal court. We're not dealing with a state statute, and in other cases where a... it is claimed that a statute is unconstitutional on its face because it's overbroad, we have simply said, well, the statute is unconstitutional and insofar as, but otherwise constitutional, which is... the statute is then no longer overbroad.
Sebastian K.D. Graber: --Well, we would submit, Mr. Justice White, that Section 13l--
Byron R. White: Your client would win his case.
Sebastian K.D. Graber: --Yes.
Byron R. White: But the statute wouldn't be... wouldn't be unconstitutional on its face.
Sebastian K.D. Graber: We would certainly accept a limiting construction that would make 13k inapplicable to the sidewalk surrounding the Court, but I submit that the better disposition would be to hold that rather than this Court rewriting the statute, that the marshal is provided under 13l with ample authority to promulgate regulations to preserve the decorum and dignity of this Court. And the better mechanism for dealing with the issues in this case would be to--
Byron R. White: Why do you think that's a better... better mechanism than to... if Congress could just repass the statute and it's the very same statute but limit it to the steps and the inside of the building, why should we send it back to Congress and make them do that?
Sebastian K.D. Graber: --The basic reason--
Byron R. White: Because all... all they'd do is say... say the statute is unconstitutional as it might be applied to the sidewalks.
Sebastian K.D. Graber: --The basic reason, Your Honor, is that I don't believe this Court's function is to rewrite statutes. And moreover, the first portion--
Byron R. White: Well, this Court, after all, the overbreadth doctrine is an invention of this Court. Normally, you take... you declare statutes unconstitutional as applied. And that's normally what you do. And it's... it's just a judicial invention to strike a statute down on its face for overbreadth, isn't it?
Sebastian K.D. Graber: --Yes. Well, as I say, we would have little problem if the Court held that 13k cannot be applied to the sidewalk. That achieves the result which--
Byron R. White: But you want more than that.
Sebastian K.D. Graber: --Well, I think the first part of this statute presents a prohibition against assemblages and processions, no matter the purpose. And Judge McKinnon, dissenting in the court below, when he analyzed the statute, also pointed out that the first part of the statute... and the statute as the Court knows, is written in the disjunctive... prohibits processions and assemblages without mentioning the purpose. And then the second aspect of the statute goes into prohibiting expressive activity. And the first part of the statute is so absurdly vague and overbroad that we would submit that that... if the Court was to place the limiting construction, it should also make clear that the first part of the statute is unconstitutionally overbroad.
Byron R. White: May I ask, Mr. Graber, what standing do you have to quarrel with the first part of the statute? Your client didn't violate that, did he?
Sebastian K.D. Graber: Well, my client has in the past in fact been charged under the first part of that statute.
Byron R. White: But none of the incidents in the record would violate the first part of the statute.
Sebastian K.D. Graber: That's correct.
Byron R. White: In fact, I wonder if they violate the second part of the statute.
Sebastian K.D. Graber: I do, too.
John Paul Stevens: Did you... did you take the position in the lower court that you didn't even violate the statute?
Sebastian K.D. Graber: Well, in fact, Judge Oberdorfer, the District Court Judge, pointed out in his opinion that he did not feel that our client's conduct was--
John Paul Stevens: Well, then how do we even get to a constitutional question?
Sebastian K.D. Graber: --Because the marshal's interpretation of the statute is that it does--
John Paul Stevens: Are we bound by the marshal?
Sebastian K.D. Graber: --No, but the--
John Paul Stevens: Because if it's perfectly clear on the face of the statute that your clients didn't violate it, why do we have to have a major constitutional case out of a very petty dispute?
Sebastian K.D. Graber: --Because the fact of the matter is that when my clients are outside on the Court sidewalk, the marshal has told them they have to leave and--
John Paul Stevens: You then went into a District Court and said he shouldn't do this, and the Judge could have said, you're absolutely right, but he didn't have to decide any constitutional question, did he?
Sebastian K.D. Graber: --No, but if the marshal and the Supreme Court police are free to apply the statute--
John Paul Stevens: Well, they're not if they obey the District Court order that tells them not to.
Sebastian K.D. Graber: --Well, the Superior Court placed a limiting construction on the statute, limiting it to the intent to influence. And when Mr. Zywicki--
John Paul Stevens: No, but I am leaving out the intent to influence. I don't see under the plain language of the statute how your client violated either of the two clauses. You weren't engaged in a parade; and you didn't use a flag, banner, or device designed to bring into public notice any party, organization, or movement.
Sebastian K.D. Graber: --Well, I agree. In my opinion--
John Paul Stevens: So how do we get to any constitutional question?
Sebastian K.D. Graber: --Well, the statute is overbroad, we believe, and on its face can be attacked--
John Paul Stevens: Well, but can some stranger come in and just say, I want to have a statute held unconstitutional even though I didn't violate it and there's no basis for prosecuting me under it?
Sebastian K.D. Graber: --Well, Your Honor, after being threatened with arrest repeatedly, we believe that our client had... has standing under the overbreadth doctrine to attack the statute on its face as applied to persons whose situations are not before the Court as well as to their own situation.
Byron R. White: Well, you really just want to win your case, don't you?
Sebastian K.D. Graber: No, Your Honor. The--
Speaker: You mean you don't want to? [Laughter]
Sebastian K.D. Graber: --the Superior... obviously, I want to win the case. But we are pointing out that when it comes to the way the First Amendment is honored on the streets, it is one thing for us to say that obviously the marshal or the police should not apply the statute--
Byron R. White: What if you had made two arguments, as Justice Stevens suggested, and the Court, you say, this statute doesn't... didn't apply to this conduct whatsoever. And secondly, if it does, it's unconstitutional. And what if the Court of Appeals had said, well, or the lower courts had held, well, we know that we can construe the statute to... it should be construed to exclude this conduct, but we just would rather reach the overbreadth argument?
Sebastian K.D. Graber: --Well, as I say--
Byron R. White: Now, what... normally, you don't reach constitutional questions if you don't have to, as Justice Stevens indicates.
Sebastian K.D. Graber: --Well, we submit in this case that the Court has to address the spatial constitutionality because of the fact that it is being administered against all expressive activity. And despite a court's limiting construction of the statute, the Superior Court is vested with jurisdiction over criminal prosecutions under this statute. When our firm represented individuals in that Court and attacked the statute's constitutionality, the Court did place a limiting construction on the statute, limiting it to influence picketing. When Mr. Zywicki wanted to come to the Court again to distribute leaflets concerning Central America, we told him we did not view that as being within the limiting construction and he could safely do that. And when he came to the Court and informed the Supreme Court police that the statute in his understanding had been narrowed, the police said, well, it has not been narrowed. And what I am saying is that the way that the First Amendment is applied by the police does not provide the deference to the First Amendment that is necessary. And in fact, the police are often telling people that they may not exercise their First Amendment rights even though technically they may be incorrect in their interpretation of this statute.
Harry A. Blackmun: Mr. Graber, let me go back to one of Justice White's original questions. If this statute eliminated the sidewalk and also the plaza in front of the building, would you be here?
Sebastian K.D. Graber: No. We believe that the plaza area, beyond the plaza area a statute could prohibit all expressive activity. The government makes several arguments which we feel are without merit. I have already addressed the time, place, and manner argument. The government also argues that this is a minimal intrusion on individual's rights. However, it is not a minimal intrusion on the rights of persons who wish to reach the audience of persons who frequent this Court. Persons who frequent this Court tend to have more of an interest in justice issues than persons who may frequent other areas. And an individual may wish to reach those persons because they have a more sensitive concern over justice issues, whether those issues arise in Central America or whether they may concern pending legislation in Congress; for example, to limit--
Thurgood Marshall: Do you assume that the people who come into this Court come in and talk to us?
Sebastian K.D. Graber: --Only those of us who are at the lectern, Your Honor.
Thurgood Marshall: Well, I don't understand your point. You want to influence the people who pass by this building because they will influence us?
Sebastian K.D. Graber: Not necessarily because they will--
Thurgood Marshall: Is that what you think?
Sebastian K.D. Graber: --No.
Thurgood Marshall: Because you can save your time.
Sebastian K.D. Graber: No. The... their desire to reach persons who frequent the grounds of this Court. We are not attempting, or they are not attempting, to influence the Court, but they are trying to reach people who do frequent the Court. For example, constitutional lawyers who come to this Court may, if they receive a leaflet about a certain issue, become concerned with that issue and decide to donate their time to that particular issue. A person across the street would have no ability to reach the constitutional lawyers who come to this Court--
Thurgood Marshall: What is a constitutional lawyer?
Sebastian K.D. Graber: --A constitutional lawyer, Your Honor, is one who devotes his or her practice to the study of the Constitution and the prosecution and defense of constitutional issues; for example, myself. [Laughter] Most of the cases that I have handled deal with constitutional issues rather than business law issues or tax issues or matters of that sort.
John Paul Stevens: Or statutory construction issues? [Laughter]
Sebastian K.D. Graber: The government has also made an argument that this statute is really narrower than Section 1507. But we would submit that this statute is, quite to the contrary, much broader than Section 1507. The government also points out that to invalidate 13k would force the police to make content-based discrimination in determining whether or not particular demonstrators or leafletters are attempting to influence the Court. However, 1507 reflects the Congress' concern in striking the balance between the rights of individuals to express their views and the rights of the government to protect the integrity of its processes. And really, that is the basic interest at issue in this case: the integrity of the judicial process. And in other cases which have analyzed that interest in other contexts... for example, Brown against Hartledge and other cases... the Court has still applied the traditional First Amendment analysis. And we would submit that this statute cannot withstand application of traditional First Amendment analyses. It is not content-neutral. The overbreadth of the statute requires the marshal to selectively determine who to enforce it against and who not to enforce it against. Secondly, the... there are not other areas where a leafletter may reach persons who frequent this Court. Therefore, the statute--
William H. Rehnquist: Well, how about the jail case, Mr. Graber? I suppose people who are interested in prison conditions would much prefer to present their message right at the prison or right at the jail. And yet Adderly and Jones certainly suggest that even though that's your message, you have simply got to find somewhere else to do it.
Sebastian K.D. Graber: --Well, there are... the concerns that are applicable to jails and military bases are concerns that are quite different to a public sidewalk surrounding a branch of the national government.
William H. Rehnquist: Well, but this isn't just a branch of the national government. It's the judicial branch which not only, in Hamilton's words, was the least dangerous branch but is also thought to be the one that should be least influenced by public opinion.
Sebastian K.D. Graber: Except that, Your Honor, when James Madison introduced the First Amendment to the first assembled Congress, the original language limited petition for redress of grievances to the legislature. And Congress rejected that view and broadened it to include the government, which does include all three branches. Now, 1507 protects the interest in protecting this Court against influence picketing. And we have no quarrel with 1507.
William H. Rehnquist: Well, if you think... if you read the petition for grievance provision the way we do, why... why would you concede that influence picketing, is it all wrong or can it be limited at all by Congress? If people are petitioning for redress of grievances when they go before a courthouse where someone is being tried and say, we want this guy convicted whatever the evidence is, why don't you call that a petition for redress of grievances?
Sebastian K.D. Graber: Because the due process clause, which is also a constitutional guarantee, affords parties the right to an impartial tribunal which is not influenced by speech specifically directed toward issues that are before the tribunal. And therefore, due process considerations support the sort of choice Congress made.
William H. Rehnquist: Well, then it's your position that you can picket or leaflet or demonstrate on the sidewalk, at least around the court, about an injustice in Central America but that you couldn't complain about anything about justice in this country?
Sebastian K.D. Graber: No. As long as the... the case is not pending before this Court or it's not directed toward an issue which is pending in this Court.
William H. Rehnquist: How about the sidewalk around the Court and in issue that is pending in this Court?
Sebastian K.D. Graber: Then I believe 1507 applies.
William H. Rehnquist: Well, how about this statute, someone picked up under this statute and charged under this statute?
Sebastian K.D. Graber: Well, I... then the statute could be attacked on the grounds on which we are submitting, and the prosecution in that case would have chosen the wrong statute in which to prosecute the individual. Unless there are any further questions by the Court, in conclusion we would simply submit that this statute was not based on considered judgments of Congress that the First Amendment may be absolutely rendered inapplicable to this Court; rather, the statute was passed along with the other scheme of which 13k is a part to generally protect this Court. The other interests which are advanced by the government... decorum and dignity... are protected by the other aspects of the statute which are not being attacked: the statutes which forbid the makings of orations, engaging in disruptive or disorderly conduct, and the authority that the marshal has under 13l to promulgate whatever regulations may be reasonable to assure the decorum and dignity of this Court.
John Paul Stevens: May I ask one other question? You gave an example earlier in your presentation about the sale of the Washington Post within the area covered by the statute. You don't contend that violates the statute, do you?
Sebastian K.D. Graber: Yes, because--
John Paul Stevens: What part of the statute does that violate?
Sebastian K.D. Graber: --It is a device, the vending machine is a device designed or adapted to bring into public notice an organization; namely, the Washington Post. And every day when the person from the Post comes and puts in their newspaper, as the government conceded in the District Court, that statute is being violated.
William H. Rehnquist: How about the Pepsi Cola delivery truck at the back? [Laughter]
Sebastian K.D. Graber: That is another problem. [Laughter]
William H. Rehnquist: You can't be serious. [Laughter]
Sebastian K.D. Graber: Your Honor, I did not write this statute. But the literal terms of the statute prohibit any device designed or adapted to bring into notice any organization, movement, or party.
William H. Rehnquist: Oh, but a court construing any statute under... in any jurisdiction tries to construe it with some notion as to what the evils the legislature intended and what a common-sense construction of the statute would result in. There may be close cases under the language, but I can't believe that the Pepsi Cola truck or the Washington Post circulation man really are violating the statute.
Sebastian K.D. Graber: Well, the fact of the matter is the Washington Post daily is allowed to distribute through the printed word its views--
William H. Rehnquist: If you pay for it.
Sebastian K.D. Graber: --If... exactly.
Thurgood Marshall: Well, that's a little different than your case.
Sebastian K.D. Graber: Well--
Thurgood Marshall: Well, who paid your clients?
Sebastian K.D. Graber: --Nobody.
Thurgood Marshall: Well, that's the difference.
Sebastian K.D. Graber: Also--
John Paul Stevens: This is in a very different theory of why the Post would violate the statute now. You're saying... you're abandoning your suggestion just because the sign that says "Washington Post" on the vending machine, that doesn't... that's really pretty far out. And that would make the sign, I suppose, on the men's room violate the statute.
Sebastian K.D. Graber: --No. [Laughter] It is a different theory, the theory being that once the forum is open to a particular medium of expression, then the government is hard-pressed to justify closing it to the same medium of expression.
John Paul Stevens: Well, but I am asking you why, why it violates the statute. I am not asking about the constitutional theory now. And you have another theory on the Post other than the fact they have their sign on the vending machine?
Sebastian K.D. Graber: Yes. That is that the... whoever has allowed dissemination through printed matter to the Post and also met forum but is depriving my clients of their rights.
John Paul Stevens: Well, but forget your client for a moment. How does the Post violate the language of this statute by being sold within the building or wherever it is sold?
Sebastian K.D. Graber: Well, the Post itself, because of the ambiguity of the term "device", the Post itself may be a device which with its banner contains a reference to the organization of the Washington Post.
John Paul Stevens: Okay. I understand. Mr. Graber, is it agreed by both sides that your clients were on the public sidewalk and not any closer to the grounds or building--
Sebastian K.D. Graber: Yes.
William H. Rehnquist: --than that?
Sebastian K.D. Graber: Yes. The facts are that my clients were very near the vending machines and the curb line of the street.
Warren E. Burger: Thank you, Mr. Graber. Do you have anything further, Mr. Solicitor General?
Rex E. Lee: Just very briefly, Mr. Chief Justice. First, with regard to the most recent exchange between Mr. Graber and the Court, I think that what that illustrates is the wisdom of two messages that I see emanating from this Court's opinion in New York versus Ferber that came down last term. And those two messages are that where you have a statute that is attacked as being either overbroad or vague, that the first thing you look for is to see if there isn't some way that a common-sense narrowing interpretation of the statute can't save its constitutionality. That is particularly appropriate in this instance, because unlike the statute in Broderick and in New York, this is a congressional statute, and therefore the interpretative stewardship lies within this Court itself.
John Paul Stevens: Mr. Solicitor General, do you think these people violated the statute?
Rex E. Lee: I think, Justice Stevens, that insofar as Ms. Grace and her sign are concerned, I think she did. And I think that one is fairly clear.
John Paul Stevens: And what is the party, organization, or movement?
Rex E. Lee: The device.
John Paul Stevens: There is a device, but what did it... was it apt... did it bring into public notice any party, organization, or movement? And with what party, organization, or movement did that sign bring into notice?
Rex E. Lee: The movement, I would say, the party or the movement is the movement that her papers--
John Paul Stevens: Her sign just quoted the First Amendment.
Rex E. Lee: --First Amendment. The movement is the movement that--
John Paul Stevens: The First Amendment Movement.
Rex E. Lee: --The First Amendment Movement.
John Paul Stevens: That's subversive. [Laughter] And that's a narrow construction of the statute?
Rex E. Lee: Her individual view, her individual view, which may have been shared by other people, that this Court is not... is not interpreting in the proper way the provisions of the First Amendment.
John Paul Stevens: Maybe she was applauding our interpretations.
Rex E. Lee: That is very possible. [Laughter] Nevertheless, it does come within the--
John Paul Stevens: It's certainly difficult for me to identify the party, organization, or movement that that sign... that that sign brings into public notice.
Rex E. Lee: --Let me say two things. One is that I think we should give at least something that approaches the deference to administrative agencies who are charged with the responsibility of interpreting the statutes, the judgment, the interpretation that is given to it by the marshal. Certainly, it's not binding, but neither is it... is it totally irrelevant. And the marshal has interpreted this statute as prohibiting generally picketing-type activity. And the picketing-type activity certainly does include the carrying of a sign. The second message that comes out of this Court's holding in New York versus Ferber is that because you can find one isolated element of unconstitutionality, that you don't throw out the... the entire statute. Therefore, both the construction alternative and also the on-its-face approach as opposed to the... or excuse me, the as-applied approach as opposed to the on-its-face approach are two messages that come clearly from this Court's decision of last year in New York versus Ferber. Now, finally, as to whether this really is just a place restriction, Mr. Graber expresses the view that it totally forbids expressive activity. And that clearly is his view. That is the way that he would interpret the statute, because of his example including everything from the Washington Post to the Pepsi Cola truck. The point of the matter is that is not the purpose of the statute, it is not the way the marshal has interpreted it, and this Court's opinions clearly teach that you don't interpret the statute in such a way that is to be unconstitutional. The purpose of interpretation is to save rather than to condemn. As a statute that prohibits picketing-type activities, demonstration kinds of activities, it is a statute that falls squarely within the ambit of what this Court has held in Greer versus Spock, Heffron, and the other cases. It forbids only one kind of expressive activity; namely, the picket sign, the leafletting, the parading. Just as the Court said, one of the basics for the Court's holding in Greer versus Spock was that the kind of political activity that was involved in that case might create, and I am quoting, "the appearance that the military was acting as a handmaiden for partisan political causes or candidates. " If the preservation of military appearances justifies a place limitation on demonstrations, then we submit that a fortiori a congressional judgment affecting a much smaller place in the interest of preserving public confidence in the judiciary should also be upheld. And now, finally, aside from all other considerations, it should lie within the legitimate authority of Congress to identify a limited number of places which serve as symbols of certain congressionally determined national values. And where necessary to the achievement of those symbolic purposes, Congress may further determine that those few places are to enjoy a special environment free of the picketer and free of his signs. And if Congress wants to take special steps to prevent the grounds of this Court from becoming another Hyde Park or even a Lafayette Park, in symbolism of the dignity and decorum and total judicial values that are represented by this Court, not only as representative of its own work but also the work of the entire federal judiciary, then that, we submit, lies within the legitimate prerogative of Congress so long as it is content-neutral, and this one clearly is, and so long as there are adequate alternative channels for communication, and clearly there are. For this reason, the judgment of the Court of Appeals should be reversed.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: -- in number 515, United States against the Southern Ute Tribe or Band of Indians. Mr. Wallace you may proceed whenever you’re ready.
Lawrence G. Wallace: Thank you Mr. Chief Justice and may it please the Court. The United States asked the Court to review this case because it seemed to us that the decision of the Court of Claims was inconsistent with and threatened to undermine clearly and repeatedly expressed the congressional policies regarding the jurisdiction and the business of the Indian Claims Commission. From the outset, Congress has imposed explicit limitations on the Commission’s jurisdiction and has specified that it is a temporary tribunal whose business is to be completed within a fixed period of years. It was originally established with a life span of 10 years and legislation enacted in 1946 and in a course of three, five-year extensions of the life of the Commission, Congress has shown increasing impatience to see the Commission’s business concluded. We express this legislative history in our brief and the current state of the Commission’s business indicates that it is unlikely that, that business will be concluded when the present life of the Commission expires in April of 1972 but we feel in light of the congressional policies expressed, we are oblige to try to see that, that business is expedited. We reproduced on page 12 of our petition for certiorari in this case some statistics about the present state of the Commission’s business. At the time we filed the petition in August 1970, 158 Commission cases had proceeded to judgment at which 81 in addition to the present of case had been settled by compromise, and a 159 cases remained to be disposed of. There has, to the best of our knowledge, been a changed in the status of only two cases in the intervening months, so that now 160 of the cases have proceeded to judgment and 157 remained to be disposed of.
Speaker: How does this Court move into this, are we suppose to speed them up?
Lawrence G. Wallace: Well, we are attempting in this case to enable the Commission’s business to be concluded in accordance with this congressional policy by asking this Court to review and the Court agreed to review the Court of Claims decision which seemed to ask to undermine, to jeopardize this congressional policy in two ways, Mr. Justice. One is that it seemed to us to impair the finality of the judgment’s which have been arrived at in these cases particularly the judgment’s arrived at through the process of settlement and compromise. We believe the Court of Claims failed to properly respect the principles of res judicata in this case. And the second way in which this decision seemed to us to jeopardize these congressional policies was by impermissibly expanding the Commission’s jurisdiction beyond the statutory cut-off dates that Congress imposed on the Commission’s jurisdiction. And if I may, I’ll proceed first to the res judicata issue in the case because under our view of the case that issue should be dispositive of the case in this Court. Now, there’s a lengthy background, historical background which I think need not be reviewed in detail, I have asked the clerk to distribute a map to each of the Justices which may illuminate a little bit just what we’re talking about here relative to the res judicata issue. Much of the history was reviewed by this Court in a decision in volume 330 U.S. written by Mr. Justice Black called the Confederated Bands of Ute Indians against the United States. It’s 330 U.S. 169. It was there noted that in 1868, a reservation was established by treaty arrangement with Confederated Bands of Utes which included all of the Ute Indians and that reservation was the entire large rectangular area on this map bordered in red and also in orange at one point. And the treaty specified that any change in the reservation must be approved by three quarters of the males of the entire Confederated Bands of Utes. The first change that took place was in 1874, the so-called Brunot Cession which is not in dispute in the present case and that ceded to the United States the area, the rectangular area marked off in yellow-orange crayon in our map. And remaining after the Brunot Cession which was approved by three quarters of the males of the entire Confederated Bands was the rest of the reservation which was all one undifferentiated Ute reservation at the time as it had been under the 1868 legislation. The map that we have used includes numbers on it so-called Royce numbers which were later applied by Charles Royce who drew up this map. This is a copy of Charles Royce’s map drawn in 1896 but at the time, there was no such thing as Royce Areas there was only the one undifferentiated Ute Reservation. Then by an agreement reached in 1880 as a result of the massacre which occurred at the Meeker Agency in the northern portion of the reservation and this too was reviewed in this Court’s previous case. There was in effect a forced sale of this entire reservation to the United States and the language of the 1880 agreement ceded the reservation to the United States. We have it reproduced in our brief in the appendix to our brief the legislation which is found in volume 21 of the statutes. It was an agreement between the Confederated Bands of Utes which include the respondents in this case and the United States. And on page 44 of our brief, we find the relevant language of the chiefs and headmen, I'm reading the last full paragraph now of the Confederated Bands, agree to use their best efforts to procure the consent, had to be consent of three quarters of the males to cede to the United States all the territory of the present Ute Reservation in Colorado with the exception of provisions for settlement by individual Indians in severalty and in the case of the Utes in the southern portion that settlement was to be made along the La Plata River in Colorado which is the area shaded in green on our map and if there was insufficient land there for the allotments in severalty to the individual Indians then they were to be settled under the La Plate River and it's vicinity in New Mexico. That language is right at the bottom of page 44 of the statute and repeatedly the statute refers to this proviso all to the session of all of the lands as a proviso for allotments in severalty. That language is used on page 45 at the beginning of the third paragraph allotments and severalty of said lands and at the very bottom of that page the land that should be divided among the said Indians in severalty, and again at the bottom of page 46 that the reference to settlement in severalty. And accordingly, in this Court’s previous decision dealing with the treaty at page 174 of volume 330 of the U.S. Reports after the relevant language of the treaty as quoted, this Court said quite succinctly, “This Act authorize specific allotments to individual Indians from the lands so ceded.” The Court referred to this as the land ceded. All of the lands of then present reservation. The dominant intent of those who sponsored this legislation and this treaty was to extinguish reservation life for the Ute Indians. This is clear from the reports and from the legislative history which we cite extensively in our brief. This was partly for retaliatory reasons of the massacre and partly it represented prevalence of the view that many held at the time that it was wasteful of land to try to maintain the Indians in their aboriginal state that they should be settled on homestead size plots to be farmers. Views were expressed by some who opposed the legislation that the Indians weren’t ready for this kind of settlement but those views did not prevail. The Act was enacted and the agreement was duly ratified by the Ute Indians, by the Confederated Band which included the respondent. There were subsequently legislation which was not referred to in the course of the settlement agreement in 1950 in which we rely and which I will refer to just briefly in the historical part of our brief. We refer to the subsequent legislation at some length. The 1882 Act was a very short statute which provided for the first time for the line to be surveyed which appears as the dotted line on our map. This was necessary because all of the Utes in the northern part of the ceded reservation had been removed to Utah and therefore that part of the reservation was ready for settlement by non-Indians. But the allotments had not yet been made to the Utes in the southern portion the so-called Southern Utes including the respondents and the settlement could not be made by the non-Indians until after the individual allotments had been made and therefore it was necessary to survey a line to cutoff the southern portion so that the northern portion could be open to non-Indian settlement.
Speaker: I thought however that you told us of that those Southern Indians were to be settled along the La Plata Valley giving them homesteads and severalty?
Lawrence G. Wallace: That is correct.
Speaker: And that the La Plata Valley is a rather small area marked in green here, if that what you said is correct, I don’t quite see necessity of the 1882 --
Lawrence G. Wallace: Well, the fact is that the Indians were still in the entire southern area. They had not yet been settled along the La Plata valley. The Southern area therefore was not a practical matter ready for settlement by the white settlers and that was why Congress said that this line should be drawn so that the northern part could be opened for settlements for homesteading and for sales. In the 1895 legislation which then ensued the House Report which we quote on page 9 of our brief refer to the Southern Indians “anomalous condition of having ceded their reservation” that was the word used “having ceded their reservation and yet remaining upon it.” And for that reason Congress decided that a reservation should be restored to the Southern Utes and for the first time a Southern Ute reservation was established by the Act of 1895 which we refer to and reproduce in the appendix to our brief.
Speaker: Where was that in this map?
Lawrence G. Wallace: That would now be the lengthy, the long, narrow rectangle at the bottom that would be formed by extending the dotted line to the Western boundary of Colorado.
Speaker: And that was created or perhaps, you can say recreated as a reservation in 1895 for the Southern Utes?
Lawrence G. Wallace: Yes. Well, it was actually the left the corner of it. That was established as a reservation for the Southern Utes by the Act of 1895 which is reproduced starting on page 48 of the appendix to our brief.
Speaker: Say it was the left corner of it? Left corner of what?
Lawrence G. Wallace: The left corner of this southern part and the remainder of this southern strip was allotted in severalty to individual Indians. But a reservation was established to that time not in the entire southern strip but in the left portion of the western portion of it. Part of it was allotted in severalty as the Act of 1880 had provided, part of it was established for the first time as a Southern Ute reservation. There was no Southern Ute reservation as such as we read the statute --
Speaker: Until 1895?
Lawrence G. Wallace: -- as we think this Court read the statutes in the case that I’ve cited to you. Now this is of significance because of the settlement agreement of that we think of the Court of Claims should have honored in our plea of res judicata in this case. That settlement agreement which was formalized in the Court of Claims judgment was added into in 1950 the relevant portions of it are set forth on pages 98 and 99 of the appendix. In these excerpts, these indented excerpts that appear in Judge Skelton’s dissenting opinion on the Court of Claims. The judgment entered was entered, you notice in the first excerpt has full settlement in payment for the complete extinguishment of plaintiffs’ right, title, interest, estate, claims, and demands of whatsoever in nature to the land ceded by the plaintiffs to the defendant by the Act of 1880 and after a schedule of lands was included in the settlement agreement the portion on page 99 says that the judgment is res judicata not only as to the land described in this settlement but whether included there in or not also as to any land formerly owned or claim by the plaintiffs in Western Colorado ceded to defendant by the Act of June 15, 1880. Now the respondents were parties to that settlement agreement and the four cases that were settled in that judgment after several years of negotiation and compromise between the Government and the present counsel for the respondents. The Confederated Bands of Utes including the Southern Utes were awarded almost $32 million in settlement. Judge Skelton estimates that this amounted to $15,600.00 per individual Indian not for family but for individual. The settlement provided pursuant to stipulation of the tribes that 40% of the award would go to the Southern Utes including the respondents and this is a recited in Section 672 of Title 25 of the United States Code. It seems significant to us that although the respondents now claimed that no Southern Ute lands were involved in that settlement. Their percentage of the award that’s 40% was larger than the one third which was specified in the 1880 agreement in legislation as the share that the Southern Utes were to take in proceeds under that agreement.
Speaker: Was there any reservations of the claims of the Southern Utes in the settlement?
Lawrence G. Wallace: There were not sir. As a matter of fact, the settlement agreement recited very specifically and this is at page 43 of volume 117 in the Court of Claims “such judgment shall be final adjudication of all issues between the plaintiffs and the defendant in the case.” It recited this, as to each of the settlements, I’m quoting the one that’s directly relevant here, appears on 438 of volume 117. But also of great significance in our view is the context in which this settlement and judgment were reached, the context of contemporaneous litigation in this Court between the same parties represented by the same counsel. On pages 11 and 12 of our brief, we cite a Council for the Utes repeated an emphatic representations in that case, in the complaint and in the briefs and the case that's in volume 330 U.S. that the 1880 agreement had ceded to the Government all of the consolidated bands, Colorado lands except for the individual allotments in severalty which were provided for. And is noted in our brief, this was also the view taken in previous Court of Claims cases and the Government in it's brief in that case in this Court acknowledged the correctness of this representation. Moreover, this Court in language which we quote in our brief on page 25 of our brief and I think this is very significant, this Court specifically referred to the then pending Court of Claims litigation which reached settlement three years later in 1950 and said in the language that we quote there in the middle of page 25 of our brief, “except for 13 treaty lands not at issue here, litigation concerning which is now pending in the Court of Claims, the only lands in Colorado for which the Indians have not been paid are those to the North of an outside the 1868 treaty reservation.” And the Court in that case this case rejected their claim for payment for those lands that were north of the treaty reservation, the original treaty. And the Court went on to say it is considered that petitioners, the Confederated Utes including the respondents have either been or are currently pressing litigation in the Court of Claims by which they seek to be compensated for the White River Valley lands and in fact for all of the land which was contained in the true boundaries of the 1868 reservation and that is the entire large rectangle on the map which of course includes the lands in the southern strip for which the Court of Claims upheld in additional reward in this case. Now we emphasize this language, we believe that was correct but we emphasized this language not because there’s no possibility that this Court could have been an error in saying this but because this language was based on representations of the same counsel who then negotiated the settlement agreement. They were aware of what this Court had held and had said in the case 1947, and it seems inconceivable to us at least that counsel, aware that the Court had said this about the litigation then pending, would enter into a settlement agreement using this broad language referring to all of the lands ceded in 1880 Act without reservation of any other claims, a settlement which recite that it’s a final adjudication of everything that was of issue in those cases. It seems inconceivable to us that counsel would enter into such a settlement agreement using that language in the context of this Court’s recent opinion if they had mend to reserve further claims to the southern lands.
Speaker: Well, you are going to, Mr. Wallace you are going to address yourself to what doors the other side claims were left open by the settlement?
Lawrence G. Wallace: Well, they of course point to statements that were previously made by the Secretary of the Interior and by the other officials in the interior department the latest of which were in 1938 in which in our view there were some confusion as to what was established by the 1880 Act.
Speaker: How do you -- but how does the other side get into this, take this settlement agreement a part, say well it settles something but not others. I mean what language and it leaves anything open?
Lawrence G. Wallace: Frankly, I don’t see language.
Speaker: But only covered, for one thing it only covered lands ceded by the Act of 1880, didn’t it?
Lawrence G. Wallace: That -- and that is what -- that embrace all of the land of their reservation.
Speaker: Well, there’s some argument about that isn’t it?
Lawrence G. Wallace: Well, of course they make some arguments about it but frankly I don’t see that any --
Speaker: With the Court of Claim -- the majority of Court of Claims sought something was left over --
Lawrence G. Wallace: With the majority of the Court of Claims entertained parol evidence on the question of the parties intent and took the Government severely the task because we raised the claim of executive privilege with respect to the attorneys work product of the attorney who negotiated the settlement with the respondents who wanted to refer to his notes and work product who is no longer in the government but really the claim of executive privilege was in our view essentially is the purpose, our basic position was it that this was not a situation that admitted of parol evidence as to the intention.
Speaker: What if it were, Mr. Wallace?
Lawrence G. Wallace: Well then there would be an issue.
Speaker: About what?
Lawrence G. Wallace: As to whether the claim of the executive privilege was a proper one in the circumstances.
Speaker: Well, let’s assume that it wasn’t. Let’s assume it wasn’t and parol evidence was a quite proper.
Lawrence G. Wallace: And whether there was a sufficient basis for the resolution of the issue.
Speaker: What would have been the issue? What would have been the evidence so, what would the claim -- what would have been suggested was left open? I mean in terms of the settlement language we didn’t mean to do what?
Lawrence G. Wallace: Well, their claim is that we had treated the 1880 Act right along as reserving a reservation for the Southern Utes even though it did not in terms reserve anything but individual allotments and it was not until the 1895 Act that anything can be found in the statute books which indicates the statutes of a reservation.
Speaker: Now, what’s your answer to that?
Lawrence G. Wallace: Well, my answer is these even though clauses, there had been some misunderstanding by some Interior Department officials as to the effect of the 1880 Act, the effect of the 1895 Act but always in a context in which it was a immaterial whether the reservation was established by the one or the other and these matters, these expressions of confusion which are cited and we refer them in our reply brief were remote in time from unsettlement negotiations that were being conducted in 1947 through 1950 in the context of what counsel, the very same counsel had said to this Court and what this Court had said which indicate completely in our view that the 1950 settlement covered all of the lands within this large order.
Speaker: When did the confusion exist years ago?
Lawrence G. Wallace: The latest expression was in the restoration of 1938. There was also an expression in the early part of the 20th century.
Speaker: But then you think of whatever confusion there was, was washed down in the settlement?
Lawrence G. Wallace: Well, it seemed to us clear from the context, the attorneys who has just litigated this case in this Court and we are aware of the language this Court had use if they entered into a sweeping a settlement agreement as they did, it seems to us the way any other judgment is treated they obviously meant to settle all the claims that were at issue. That would certainly be the view on an antitrust consent to create any other settlement judgment and we don’t think that this judgment which was the result of a compromise negotiated by very able counsel over a period of several years should be treated any differently. Now, we also --
Speaker: What’s the amount of the initial award that’s been (Inaudible)?
Lawrence G. Wallace: It has to be in a valued in further proceedings Mr. Justice that the claim is just for evaluation of an accounting.
Warren E. Burger: Do you have any estimate of the range of it at all? Are there anything in this record that would reveal that to us?
Lawrence G. Wallace: I don’t’ think the record really indicates it and I don’t know the answer to that, this remains to be evaluated. There is of course an additional issue as to the extent of the accounting that’s properly required under the judgment in this case. Should the Court disagree with us under res judicata issue, we’ve developed that in our brief it seemed to us that they both, the Commission the Court of Claims when way beyond the explicit cut-off dates on the Commission’s jurisdiction in accepting 10 years after the accounting was rendered exceptions which brings in to issue claims other than those made during the statutory limitations period in which would require a general accounting up to date which seemed us to go way beyond the statutory limitations on the Commission’s jurisdiction.
John M. Harlan: If you prevail on res judicata, all those other claims are wash out.
Lawrence G. Wallace: That is correct Mr. Justice Harlan. The res judicata point that we’re making would be dispositive of the case. Thank you.
Warren E. Burger: Thank you Mr. Wallace. Mr. Wilkinson.
Glen A. Wilkinson: Mr. Chief Justice and may it please the Court. I'm having a chart brought in if I may so that as Mr. Wallace says the history of the treatment by the United States of the Confederated Bands in Ute Indians -- Confederated Bands of Ute Indians by the United States is somewhat complicated. I would like to use this to give a picture as we see it and as it relates to the case before the Court today. Like the Government’s sketch, this is adopted from Royce 1896 Bureau of Ethnology report interpretation of Indian land sessions in the United States. Prior to 1868, the Confederated Bands of Ute Indians who were composed of the White River Band the Uncompahgre Band, and the Southern Ute Band occupied in the usual Indian fashion a tremendous area in Colorado, New Mexico, and Utah. In 1868, the Confederated Bands, the three units comprising Confederated Bands agreed to limit its area of occupation to the outside perimeters shown on this sketch approximately or just slightly lower than 16 million hectares.
Warren E. Burger: Mr. Wilkinson, in 1868, approximately how many people are involved in these tribes and bands?
Glen A. Wilkinson: Somewhere between 3,000 and 4,000 people. In 1873, as counsel has explained, there is a highly mineralized area found in the location of Colorado which is identified here as Royce Area 566. The United States obtained from the Confederated Bands of Ute Indians and an agreement to cede that that was ceded in 1873 and ratified by an Act of Congress of 1874. The next Act of course is the agreement between the Confederated Bands of Ute Indians in the United States an agreement which was worked out by nine representatives of the three bands constituting with Confederated Bands of Ute Indians over a period of several weeks in Washington. As indicated, it was decided by the people of Colorado and probably people and Congress that the Confederated Bands be removed from Colorado because of many things but because eventually of the Meeker Massacre which occurred in 1879. That agreement provided that the chiefs and headmen of the Confederated Bands would exercise their most persuasive powers to get their people to agree to a cession of lands indicated in what I call the 1868 reservation that agreement had to be ratified or accepted by three quarters of the male adult Utes. It was to be brought back to Congress for ratification. It provided for assessment of the 1868 reservation with two extremely important exceptions. One was is it provided that the Uncompahgre Band which occupied generally the middle area of the 1868 reservation was to be provided with land on the Grand River near the mouth of the Gunnison River in a western portion of middle section of this area. The other important exception on the one which determines this case, there’s the fact that I preserved for the Southern Ute area. The area in the south which is the Southern Utes had used from time immemorial. Southern Utes as a part of the agreement agreed to remove to and remained on the La Plata River and the area adjacent to it in the State of Colorado and if that was insufficient then on the La Plata River an area adjacent in the territory of New Mexico. This was the way of expressing where the Southern Utes were living and continued to live. On the first definite expression of this comes from the fact that Mr. Manypenny who was Chairman of the Commission appointed pursuant to the Act of 1880 when he visited the Southern Utes recommended to the Department of the Interior and the Congress that the area heretofore and presently occupied by the Southern Utes should be preserved for the home of the Southern Utes. What was the reaction of Congress --
Speaker: One of the questions in the case is whether if that was a reservation or whether it was simply a designation of the area to be occupied by the Southern members of the Confederated Ute Tribes and severalty, isn’t that one of the issue you? You stated this is the fact, isn’t that a matter of some controversy between you and your brother counsel?
Glen A. Wilkinson: It’s the key controversy in this case --
Speaker: That’s what I thought.
Glen A. Wilkinson: -- if Your Honor please. The 1880 treaty, an agreement that has been indicated removed in the Southern Utes for whatever purpose.
Speaker: And whether or not that was a reservation at that time, is a key issue in this case?
Glen A. Wilkinson: Whether it was reserve for the Southern Utes, that’s right. The 1882 Act came along. There was concern in the Attorney General to Congress that it did not dispose under the public land laws, the area indicated a 616 without additional legislation. Congress responded with two facts in the 1882 legislation. First it opened area 616 to dispose along under the public land laws and it provided for a line to be drawn between the area to be dispose of under that Act and the area occupied by the Southern Ute Tribe. That line was drawn as I indicate from the Southwest corner of Royce Area 566 to the boundary of the territory in Utah. Now from that period on from 1882 until 1895, in every session of Congress save one, in most days most of the Congress has had three sessions. There was legislation pending concerning the treatment and disposition of the Southern Utes and their lands. When it came along the 1888, Congress passed a law which established to Commission to negotiate with the Southern Utes for preservation or settlement of their treaty and other rights including the possibility of exchange of “their reservation.” Their reservation meant only Royce Area 617. They reached agreement with the Utes. The Utes agreed to the Southern Utes to trade that area for an area in Utah territory three times as large as this. There was objection from the citizens in Utah. The Utes were sort of unwanted people at this time even the territory of New Mexico didn’t want them to move there. But this agreement in 1888 which provided for exchange of that reservation for the exchange for the land in Utah was reached by the Commission and it passed the Senate. It died in a House. Still there was a continuation of legislative effort throughout. In about 1893 or 1894, Congress sort of changed this direction toward the handling of the Southern Ute reservation and I might say that during all of this time, there was adequate, an apple administrative recognition of the ownership of the area Royce 617 involved on the part of administrative officers of the United States. When 1895 came along, Congress had some slight heat or tension to the Act of 1880 by saying that the property involved in the Royce Area 617 should be handled as provided by the 1880 treaty as herein provided. It then changed direction considerably from what it had done in the 1880 Act. The 1880 Act had provided for instance the proceeds from the lands to be sold in the Royce Area 616 should be divided three ways between the White Rivers, the Uncompahgre, and the Southern Utes. In 1895, and even though the treaty of 1868 had required that any session of Ute land obtain permission from three quarters. The male, adults of the bands involved it provided possibly different factors. First, it created the divisions between Royce Area 617. It said, those members of the Southern Ute Tribe who elect and are qualified to receive allotments shall be allotted in the area at the east end of this track as to those who did not elect or were not qualified, the Government would create and reserve for them a reservation in a 40-mile track in the western end of Royce Area 617. Congress didn’t require the three quarters of the male, adult Utes vote for this required only a majority vote. It also provided that within six months following the passage of that Act, the President should arrange for the allotments for those to be allotted in the eastern end and the balance should be sold under the public land lost at not less than $1.25 per acre.
Speaker: And that was in what year 1895?
Glen A. Wilkinson: 1895. The proclamation was actually issued four years later in 1899.
Speaker: Do you know about how many Utes there were at that time?
Glen A. Wilkinson: At that time the Southern Utes numbered approximately 1,100.
Speaker: What are they number now?
Glen A. Wilkinson: They are now two different tribes, if Your Honor please. This is now known as the Ute man -- Ute band. This is known as the Southern Ute Tribe. The Southern Ute Tribe latest to normal is just under 800. The Ute man -- Ute band is almost as large.
Speaker: What was the acreage? (Inaudible)
Glen A. Wilkinson: The acreage in Royce Area 617 was approximately 1,070,000 acres. It was an area 15 miles wide and approximately 100 miles long. It was often referred to as 15 x 100-mile strip.
Speaker: And there were how many at the time?
Glen A. Wilkinson: There were approximately 1,100. This was on of the factors which caused Congress to give this problem so much consideration also caused the administrative officers to be so concerned. The Southern Utes were setting on a strip of land these 15 miles wide and advancing settlement was encroaching on all sides especially to the north and south. The City of Durango which was in the session of 1873 along in 1895 had reached the population 4,000 people. The administrators were concerned that friction would develop between a non-Indians and Indians and this is one of the reasons there were access to remove the Southern Utes from what the administrative officers considered a small, slender portion of land on which there to live. Now the area on the east which was not allotted was put up for sale and in the 1902, Congress passed another Act which is called the Free Homestead Act. Now the 1895 Act which provided for the allotting in the east provided that after the deduction of expenses of sale, the remainder, the proceeds should be saved and put in trust for the benefit of the Southern Utes and the Southern Utes only; another clear indication of the congressional recognition that Royce Area 617 was Southern Ute territory. Now, two administrative decisions came along in 1903 and 1920. 1903 one man sought a homestead in that area. He used history, the fact that this had been ceded by the Act of 1880. His application was denied, reviewed and denied by the Secretary of the Interior. The same application type of application was made under the Minerals Act of 1920. And again was denied by the Secretary of the Interior. And the final main Act which shows beyond any doubt that this area, Royce Area 617 was preserved for the Southern Utes and was not ceded by the Act of 1880 is a fact that in that year, the Secretary of the Interior pursuant to provisions the Indian Reorganization Act of 1934 restored to the Southern Ute Tribe in excess of 300,000 acres of land in the eastern section of Royce Area 617 which had not been disposed of under the public land laws. In the meantime, between 1900 and 1938, the United States Government had given away free to homesteaders in excess of 225,000 acres of land. And it did this in clear violation of the Act of 1895 which provided for sale of that land to settlers at not less than $1.25 per acre, the balance to be saved and held in trust for the Southern Utes. Now, the Government says we ignore all of this history. We ignore the recognition by Congress over continuing long period of time and we do this because in the settlement of other cases unrelated to this area involving other parties, involving other issues there is a stipulation which provided in a catchall phrase that the settlement in four cases which were involved there and only one is really important here and that is case number 46640, a judgment to be entered is res judicata not only as to the land described in Schedule 1, but whether included there in or not also as to any land formerly owned or claimed by the plaintiffs in Western Colorado ceded to defendant by the Act of June 15, 1880.
Warren E. Burger: Mr. Wilkinson let me ask you this. If this stipulation that you just referred to which, is that the same one that appears on page 98 of the appendix?
Glen A. Wilkinson: Yes, sir.
Warren E. Burger: Recited in the dissenting in the Court of Claims?
Glen A. Wilkinson: Yes, sir.
Warren E. Burger: Now, if that stipulation does indeed relate to the total claims, is that the dispositive factor in this case?
Glen A. Wilkinson: If the Court should find contrary to what we think is the fact in the language of the 1880 Act that legislative history, the administrative interpretation that this area Royce Area 617 was indeed ceded by the Act of 1880 then I’m afraid that the Southern Utes will never have an opportunity to get reimbursed for the 230,000 acres given away.
Speaker: Where is the language of the 1880 Act at which the Government denies of having ceded the entire reservation?
Glen A. Wilkinson: It’s in the defendant’s -- the Government’s brief page 43, Section 3 of the bottom page.
Speaker: Did you say 44?
Glen A. Wilkinson: 44. If Your Honor please, the second full paragraphs said, chiefs and headmen agreed to do what was required by the agreement. Then the language is that the Southern Utes agree to remove to and settle upon unoccupied agricultural lands on the La Plata River in Colorado.
Speaker: [Voice Overlap] Do you dispute that the rest of the reservation was ceded at that time?
Glen A. Wilkinson: Area 616 was yes. It was ceded in trust.
Speaker: Alright. But where in this language do you find the distinction between 616 in the Royce 617?
Glen A. Wilkinson: The Royce --
Speaker: You mean if it ceded one, why didn’t it cede the other?
Glen A. Wilkinson: Because it treated each of the three bands of the Confederated Utes a little bit differently. The White Rivers who were in the northern area were moved to Utah territory.
Speaker: That may be true but the cession language that applies generally is the entire area.
Glen A. Wilkinson: Except --
Speaker: If it ceded, well except this herein. But where is the, except?
Glen A. Wilkinson: It’s in the paragraph before You Honor, except this hereinafter after provided for this --
Speaker: (Inaudible) Except this hereinafter, where is that hereinafter?
Glen A. Wilkinson: That’s the Southern Utes and Uncompahgre Utes which the Uncompahgre Ute provision is dealt with on the top of page 45.
Speaker: Well, I know but do you think that’s an exception to the --
Glen A. Wilkinson: Yes sir, we do and we think that conclusion is very well fortified by the later congressional history and congressional action which followed the adoption of this Act.
Speaker: Well, do you think then that they’re still unclaimed outstanding within the Southern Utes?
Glen A. Wilkinson: Well, there was a plan file for the Uncompahgre Utes and that claim was successful.
Speaker: Do you mean --
Glen A. Wilkinson: For failure of the United States to locate land for them on the Grand River near the mouth of the Gunnison River.
Speaker: They didn’t carry on the strip but there was no question on what the lands have been ceded?
Glen A. Wilkinson: We think there is and that’s the basis of this lawsuit and we think Congress thought so and we thought the adminis --
Speaker: Upon which you rely as the last four paragraph on page 44, isn’t it? And you say that’s a reservation for the Southern Utes?
Glen A. Wilkinson: Yes, it’s a preservation of the land. Theretofore occupied by the Southern Utes and we say this constitutes as Mr. Manypenny put it a preservation of the land now and here fore occupied by the Southern Utes.
Speaker: And you drop the fee and you say it was a reservation, is that right?
Glen A. Wilkinson: Yes, sir. And also there -- I might call your attention the fact that there is language in the report of the Commission of Indian Affairs in 1881 which provides and interprets this as ceding and selling the diminished 1868 treaty reservation accepting and reserving such lands on the La Plata River and it's vicinity for the Southern Utes in pursuance of the Act of 1880.
Warren E. Burger: Now, all this historical facts were well-known to everyone I take it when the stipulation was made, the one that appears on page 98 of the appendix, is that correct?
Glen A. Wilkinson: They were well-known to the people who were involved, yes.
Warren E. Burger: Why should it be necessary to go outside the four corners of the stipulations to find out what the stipulation meant?
Glen A. Wilkinson: I don’t think it is we oppose the remand, Mr. Chief Justice. We didn’t think its necessary --
Warren E. Burger: Where did the idea of taking parol evidence for that explanation originate? With the Court of Claims?
Glen A. Wilkinson: With the Court of Claim. I think both parties oppose the remand but when the remand was allowed, we introduced the evidence, we introduced evidence not only by the chief attorney for the Utes but also by two expert plan researchers who testified that before the stipulation and the settlement of 1950 they were working at our request on compilation of records for the Southern Ute tribe involving area 617. The Government of course is, the Court is well aware, refused to offer any evidence at that time. Now, if the Court please, if it feels or you feel that there’s some uncertainty about whether the 1880 Act did cede Royce Area 617 and we submit that it did not and we submit as I’ve said that Congress and the administrative did not think so, counsel has said that the Secretary of Interior in 1938 was merely mistaken in his interpretation of this Act. But if he was mistaken he gave to the Southern Ute Indians over 300,000 acres of land to which they were not entitled.
Speaker: May I ask -- Mr. Wilkinson, I gather that this provision on page 45, allotments in severalty. Does an allotment presuppose that the United States had land to allot?
Glen A. Wilkinson: It was an allotment. It was a method of carrying out was then the new Indian policy of breaking up --
Speaker: No, my question was whether a provision for allotments in the severalty must be -- was or was not on a premise that the United States had land to allot.
Glen A. Wilkinson: No. No, the United States held this land. Any of this land only entrust even as to Area 616, it held that entrust only for the benefit of the Confederated Bands of Utes. They have a legal title.
Speaker: Yes, to hold it in trust. Why was there a cession of 616?
Glen A. Wilkinson: Because Congress and the people in the State of Colorado wanted to let the Utes out of Colorado.
Speaker: They wanted to put title in the United States?
Glen A. Wilkinson: Title was already in the United States --
Speaker: As trustee?
Glen A. Wilkinson: -- legal title by virtue of the 1863 treaty.
Speaker: And what did the cession accomplished?
Glen A. Wilkinson: It moved the --
Speaker: It removed the Indian claim?
Glen A. Wilkinson: No, it removed the Indians personally.
Speaker: Yes, but removed whatever claim on the property it had.
Glen A. Wilkinson: No, sir. No sir, like the 1868 treaty the United States is merely holding that land in trust for the Indians.
Speaker: Then the 1880 cession to the extent -- the 1880 cession whatever it appraised did not terminate the trust and was not (Voice Overlap)?
Glen A. Wilkinson: No, sir. In fact, Your Honor the case is --
Speaker: What did the cession accomplished?
Glen A. Wilkinson: Move the people out of Colorado.
Speaker: A cession does nothing except moved the people physically, right?
Glen A. Wilkinson: And when the 1882 Act came along, it did give the United States authority to dispose of this land under the public land laws. The Attorney General Brewster advised the Congress in 1881 and didn’t have authority even under the 1880 Act to dispose of this land, and I’m talking of 616 without additional authority from Congress. Likewise, we say the same is true as to area 617 with respect to the Southern Utes. And whatever the motivation of Congress was in 1880, it let all Southern Utes occupy that area just as they had theretofore until 1895 when it retraced it's steps, went in another direction and provided for the allotting the separate reservation, the sale of some of the eastern area and then the proclamation by the President to open that up for public settling.
Speaker: On the bottom of this, the parties to this 1880 arrangement must have had -- they must have thought the session was doing something because they recited that the Utes would cede but on the condition that the Government cause the land so set apart to be surveyed and divided among the Indians in severalty. And that as soon as the consent of the tribe, the permission shall be sent to superintendent to remove the settlement of the Utes. And in consideration of the cession of the territory, they must have thought the cession did something?
Glen A. Wilkinson: Yes. It provided for a census and the separation of the three bands and two of them were moved to Utah eventually and the Southern Ute Band was left essentially where it had live before.
Speaker: Mr. Wilkinson, what -- the title is enact to accept and ratify the agreements for the sale of their reservation in the said state? What were they selling?
Glen A. Wilkinson: Well the Attorney General, the following year told the man then enough to sell it. They need it one more Act so that they could sell track 616. I want to say --
Hugo L. Black: Mr. Wilkinson, may I ask you one or two questions and I am not sure if this in the record. Does the Government wins it leaves the Utes only with the land which there’s no controversy about now? How much land would that be for each Indian, per Indian to admit the population?
Glen A. Wilkinson: I don’t know, Your Honor. I guess there are 450,000 acres in the Ute reservation which was created by the Act of 1895. The population of that group, that tribe is I think in a neighborhood of 700 in Southern Ute reservation which is the eastern and the Royce Area 617.
Hugo L. Black: 700 at 450,000 acres you said?
Glen A. Wilkinson: Approximately, yes.
Hugo L. Black: Even if you don’t win this?
Glen A. Wilkinson: They still have that and they will continue to have that.
Hugo L. Black: Suppose you win this, how much will it be per Indian?
Glen A. Wilkinson: Those people will still have that but we’re trying to collect for is 230,000 acres of land in the area.
Hugo L. Black: How much it is per Indian? I can think of it better?
Glen A. Wilkinson: My arithmetic is a little too slow Mr. Justice Black, but if you divide thousand into 400,000 and I guess you’ll get a 400 hectares.
Hugo L. Black: About 400 hectares? Is this a mountainous land or valley land or farming land or --?
Glen A. Wilkinson: It has an elevation at various points between about 6,000 feet and 12,000 feet. It’s fairly mountainous but it has been indicated there are five or six small river valleys also. And notice where the places were the allotments were made approximately 150,000 acres of land was allotted pursuant to the Act of 1895 and the Government gave away free to homesteaders about 230,000 acres.
Speaker: If those are none, your theory of the case, what is the estimation for that 40% as part of the settlement the Southern Utes got in 1957?
Glen A. Wilkinson: The settlement was for lands involved in Royce Areas 616. There were three components of the Confederated Bands of Ute Indians. And those judgments for all for the Confederated Bands of Ute Indians with the Southern Utes received 40%, the Uncompahgre Utes receive I think 20%, and the White River Utes 40%. Something on that order because all of them pursuant to the treaty of 1868 owned the land involved in the chart you see before you.
Speaker: What’s the money that’s involved total in this case?
Glen A. Wilkinson: Just under 32 million and the most --
Speaker: 32 million representing what?
Glen A. Wilkinson: The biggest part was one case which approximated $25 million.
Speaker: So as involved on this was litigated? Is this suit we have before us?
Glen A. Wilkinson: As Indians claims go this is a small case.
Speaker: Well, I know but how much is involved?
Glen A. Wilkinson: We don’t know. This is still in an interlocutory stage. My guess would be that you’re talking about 230,000 acres valued in different tracks as between 1900 and 1938 of land which is not extremely valuable and also we’re dealing and asking for an accounting of the proceeds of other land sold but for which the Government has made no accounting to --
Speaker: And how much did the Government get for that land? That’s a 230,000 acres, isn’t it?
Glen A. Wilkinson: That’s what shows in their reports so far $215,000.00.
Speaker: $215,000.00?
Glen A. Wilkinson: That’s right. So this --
Speaker: And this case is under a million dollars, is that it?
Glen A. Wilkinson: That’s a good ballpark guess in my judgment.
Speaker: I still don’t understand why the Southern Utes premise is proscribed that way in 1957? Is that (Inaudible) here?
Glen A. Wilkinson: They didn’t, Your Honor.
Speaker: They got 40%?
Glen A. Wilkinson: At that time there were two tribes here, each of them got 20%, combined taking all Southern Ute Tribe they got 40%. Likewise, the Uncompahgre Band got approximately the same and the White River Band got about 20%. Now, the treaty or the agreement of 1880 provided for three ways split between these bands but the population shifts that accrued up to the time of the stipulation in 1950 been such. But the tribes agreed among themselves upon a division of the judgments in Congress ratified that agreement, and that’s the background to why that happened. So I might say, one thing more, if I may impose on the Court. If there’s uncertainty about what the Act of 1880 did, we ask you to look at that short section of our brief in which Mr. Chief Justice Marshall as early as 1832 indicated that agreements and treaties between the United Stated and the tribes should not be interpreted to the detriment of an Indian tribes and we ask with that tradition of this great country be continued in this case. I thank you.
Warren E. Burger: Thank you Mr. Wilkinson. Mr. Wallace your time has expired but we have extended Mr. Wilkinson. If you have anything pressing or urgent we’ll give you a few moments.
Lawrence G. Wallace: Well just very briefly, Mr. Chief Justice. I do want to call specific attention to page 8 of our reply brief that we filed in this Court in which we quote from the brief that was filed on behalf of the Confederated Utes in this Court in 1947 including the respondents. Our reply brief was filed in February 1971. It’s on the front cover it says petitioner’s reply brief. On page 8 of that reply brief we quote from the brief that was filed by Mr. Wilkinson, Mr. Ernest Wilkinson, Mr. Glen Wilkinson’s law partner, in this Court in 1946 term in the case that I referred to previously and that brief said that the central purpose of the 1880 Act was “to acquire all of the land of the then present Ute reservation” and the sole “exceptions” --
Speaker: Sale -- sale.
Lawrence G. Wallace: Well that is a misprint, I’m sorry. The word should be “sole” and the sole exceptions were unoccupied agricultural lands on the La Plata River, agricultural lands on Grand River, etcetera for individual allotments. That is the representation that the Ute Band made at this time. They’re now claiming that that reservation in the 1880 Act was for a reservation for the Southern Ute Tribe but it seems to me that in light of what they had said in the 1947 litigation and what this Court had said that the stipulation in 1950 would have read quite differently if they had meant to reserve Southern Ute Lands from that settlement. Thank you.
Warren E. Burger: Thank you Mr. Wallace. Thank you Mr. Wilkinson. The case is submitted.