William H. Rehnquist: We'll hear argument first this afternoon in Number 88-6546, Albert Duro v. Edward Reina. Mr. Trebon.
John Trebon: Thank you. Mr. Chief Justice and may it please the Court: The issue in this case is whether an American citizen can be submitted to the criminal jurisdiction of an Indian tribe even though he is not a member of the tribe simply because he or she is an Indian; or, should they be treated like Mr. Oliphant and other non-members with whom they are similarly situated. Albert Duro, the Petitioner in this case, is a California Indian. He is a member of the Torez-Martinez band of Mission Indians. He was raised in California on private land and is a permanent resident of the State of California. He is not a member of, nor is he eligible for membership in the Salt River Tribe, who is the Respondent in this case. For approximately three months in 1984, Albert Duro stayed on the Salt River reservation with his girlfriend, who is also from California. During June of 1984, a firearm discharged and accidentally shot a 14-year-old boy that was riding a bicycle approximately two blocks away, undoubtedly an unfortunate incident. Mr. Duro, along with Sean Lackey, was indicated in federal court for first degree murder relating to that charge.
Sandra Day O'Connor: It resulted in a death?
John Trebon: It did result in death, Justice O'Connor, yes. He was indicted for first degree murder, and after the case was in federal court for several months, it was dismissed on motion of the government and dismissed without prejudice. The government has never refiled that charge against Mr. Duro. Two days after the case was dismissed in federal court, the federal marshals turned Mr. Duro over to the Salt River Tribe. He was charged in the Salt River Tribe with discharge of firearms, which is a misdemeanor. A motion to dismiss was filed by Mr. Duro in the Salt River Tribe. That motion was denied by Judge Manuel. We then filed a habeas corpus petition before the federal district court. Judge Copple, who the Court may remember was the district court judge involved in the Wheeler decision and upheld by this Court, issued a writ of habeas corpus in favor of Mr. Duro. That was appealed by the Respondent to the Court of Appeals for the Ninth Circuit. The Ninth Circuit, in a 2-1 decision with Judge Sneed dissenting, held that non-member Indians, unlike non-Indians, are subject to the criminal jurisdiction of an Indian tribe if they have significant contacts with the reservation; not if the crime involves significant contacts with the reservation but merely whether or not the person involved has significant contacts with the reservation.
Anthony M. Kennedy: Did the Ninth Circuit adopt the context rule as part of a statutory analysis? How did it purport to justify the context rule?
John Trebon: It... it purported to justify it on the basis that the tribe had an interest in someone over whom they had a significant contact. The significant context test, as far as I can see, has no direct relation to any statute.
Anthony M. Kennedy: Did... did... did it purport to be some sort of a constitutional analysis?
John Trebon: No, it did not. I think, with all due respect to the Ninth Circuit, it was a rule that they modeled in order to fit the problem that they determined to exist on the reservation.
Sandra Day O'Connor: Well, now, if you were to prevail here, I take it no prosecution for the discharge of the firearm would be possible in this case?
John Trebon: Well, Justice O'Connor, we don't necessarily feel that that is true. In fact--
Sandra Day O'Connor: Why not?
John Trebon: --Well, first of all, we think that two separate sovereigns could fill the supposed void that the Respondents argue exist. The state government could--
Sandra Day O'Connor: Well, in Arizona it has not, of course, come within the purview of Public Law 280. It does not have criminal jurisdiction for offenses--
John Trebon: --You're correct, Justice O'Connor. That's true.
Sandra Day O'Connor: --So that's out.
John Trebon: That's true.
Sandra Day O'Connor: All right.
John Trebon: But the State of Arizona continues to exercise criminal jurisdiction for crimes committed on the reservation between two non-Indians, and that jurisdiction exists regardless of whether or not it's a 280 state. The same analysis that allows them under McBratney and that line of cases to have jurisdiction over non-Indians would similarly allow them to have jurisdiction over non-member Indians. In fact--
Sandra Day O'Connor: Is there any case from this Court that you would point to to indicate that the State of Arizona has criminal jurisdiction here? I thought we took it as a given that the state did not.
John Trebon: --This Court has not directly focused upon that issue as of yet. This is a case of first impression. The cases that I would point the Court to would be not only the McBratney line of cases but the cases ever since Fletcher v. Peck through Brendale involving Oliphant and Wheeler and the cases that follow that define tribal sovereignty with respect to its own members in the state interest on the reservation to all non-members, not simply non-Indians. So if you follow that line of reasoning, the McBratney rationale could easily be extended to cover non-member Indians on the reservation.
William H. Rehnquist: But if... not a non-member Indian attacking a member, could it?
John Trebon: No, I would think... well, yes. The non-member Indian... no, that would be federal court. I'm sorry, Chief Justice. That's exactly right. That would continue to be in federal court under 1152.
Sandra Day O'Connor: So your response to me was wrong. You do not assert the State of Arizona could assert jurisdiction here?
John Trebon: I think the State of Arizona could assert jurisdiction involving an offense on the reservation--
Sandra Day O'Connor: No, we're talking about this offense. I... I thought it was an... a... a member of the tribe who was killed.
John Trebon: --It was not. I'm sorry.
Sandra Day O'Connor: It's a non-Indian who was killed?
John Trebon: It's a non-member. It is a member of an adjoining tribe, an adjoining reservation. Neither Phillip Fernando Brown, who was the young child that was accidentally shot in this case, nor Albert Duro, is a member of the host tribe.
Sandra Day O'Connor: All right. Now, would you tell me so that I understand it, please, whether you assert that the State of Arizona has criminal jurisdiction over the offense, if any?
John Trebon: Let me say, Justice O'Connor, I cannot answer that question in the definitive manner now, but it is very likely that the State of Arizona could have jurisdiction under the rationale of McBratney. It is also possible that the federal government could have jurisdiction as well.
Sandra Day O'Connor: Well, I thought the federal government had dismissed the suit, and the solicitor general representing the federal government says it has no jurisdiction over this offense.
John Trebon: That's true. I think that the Respondent and the government would like to create a void in this case, but one doesn't actually exist--
Sandra Day O'Connor: Well, I don't know about liking to. The concern is there may in fact be a void.
John Trebon: --The government said the same thing to this Court in Oliphant. They said there could be a hiatus created if you did not grant tribal court's jurisdiction over non-Indians. The same type of void arguably exists in this case. We believe that the void could be filled in the same manner that it was filled after Oliphant.
Anthony M. Kennedy: And how was that?
John Trebon: State courts exercise jurisdiction after Oliphant.
Anthony M. Kennedy: Is it also a possibility that no void exists because we interpret the exception clause of 1152 to apply to tribal members?
John Trebon: Precisely. That would erase the void completely. The other thing I guess I should point out is that--
Anthony M. Kennedy: Is there... is there any precedent that would allow us... would we have to go contrary to our precedence to do that?
John Trebon: --The only case that the Court would have to go contrary to arguably would be the dicta in United States v. Rogers. Rogers is a case involving a non-Indian crime against a non-Indian crime. The non-Indian argued before the Court that he was an Indian because he was adopted into the membership of the tribe, and this Court held that you may become a member but you can't become an Indian simply because you're adopted by the tribe as a member. Besides that, however, there is great authority for doing exactly that, Justice Kennedy, for finding that the Indian on Indian exception 1152 really means member on member, and the basis for that is when that was first included in the first permanent trade in the Intercourse Act in 1834, it was introduced with three other bills, one of them being the Western Territory Bill. It was within the contemplation of Congress at that time that the Western Territory would be created. That bill provided that there would be a confederacy of the Indian tribes that would handle jurisdiction involving intra-tribal offenses, when there are offenses committed by one member against the... against a member of another tribe. So that was the understanding in the Indian trade in the Intercourse Acts. And also, treaties generally provided... at the time that the Trade Intercourse Acts were passed, treaties generally provided that the government would assert inter-tribal jurisdiction. The United States agreed to keep peace among the various tribes and, therefore, exercised inter-tribal jurisdiction. In fact, all the commentors, Prucha and Clinton and Erhart and the commentors in our brief all agree that the Indian... the Indian exception 1152 indeed means tribal members. It does not mean to vest the tribes with crimes involving one member against another member of a different tribe. The other thing about the void... I think the void is an interesting aspect of this case... is that even if the Respondents win, there will still be a void. In order to get away from equal protection and other problems in this case, they suggested to this Court that it should find that a tribe has jurisdiction over enrolled Indians of any federally recognized tribe. That would mean who would have jurisdiction over non-enrolled Indians? The Indian on the Indian exception was passed by Congress before there was ever such a thing as enrolled Indians. It was passed in 1834, but there was no enrolled Indians till 1934 when the Indian Reorganization Act was passed. So that's certainly not what Congress meant. So the tribe now gets jurisdiction only over enrolled members. Non-enrolled Indians living on the reservation will be subject to no one's jurisdiction either within the analysis of the Respondent and the government. And in fact, the population statistics for this particular reservation show that non-enrolled Indians are about as great on the reservation in number as non-member enrolled Indians, so the void will be equal. So that's not a solution to the void problem. In fact, it's interesting to point out in terms of a void if this--
Antonin Scalia: Couldn't one say that what Indians, what all Indians meant in... at the time 1152 was adopted is not necessarily what all Indians means today; that in light of the later legislation providing for enrollment and so forth, who constitutes an Indian has simply been changed? That would solve that problem, wouldn't it?
John Trebon: --It would if the Court was willing to change the definition of Indian as generally applied to federal jurisdiction since Indian law began. The Federal Government, we submit, does not exercise jurisdiction simply over an enrolled Indian. There has always been a definition for Indian in federal law involving not only whether or not someone's enrolled but also whether or not someone's an Indian by race. The Indian Reorganization Act provides that if someone's more than 50 percent Indian by race, he's an Indian for federal purposes. The custom and habits of a person have also been looked at by this Court to determine whether or not someone is an Indian. So we--
Anthony M. Kennedy: So that response to Justice Scalia indicates that it would be difficult, it seems to me, to interpret 1152 to avoid... to prevent the void?
John Trebon: --I think that's true, unless the Court does as you suggested, Justice Kennedy, define that it means tribal members. And there's a great deal of legislative history--
Anthony M. Kennedy: Well, but... but how can you do that consistently with what you just told Justice Scalia?
John Trebon: --Well, I think the way you do it--
Anthony M. Kennedy: Because we're talking about the word "Indian".
John Trebon: --The way you do it, I believe, is not to find that you redefine the term "Indian", but you look at the legislative history to see what Congress meant. In this case it was passed in conjunction with the Western Territory Bill which tends to define the meaning applied to the terms by Congress. Moreover, this Court in United States v. Wheeler looked at all these statutes in--
Antonin Scalia: On any theory, you... you would still say... when you say it means a member of the tribe, you assert an enrolled member of the tribe, don't you? Isn't that what you mean by a member of the tribe?
John Trebon: --Not necessarily.
Antonin Scalia: Not necessarily. Well, then you're... then you're into the gap again. Then you're into the gap again. If it includes not only enrolled members of the tribe but unenrolled members of the tribe, then there's going to be at least that gap, isn't there?
John Trebon: No. We would submit that if the tribe exercised jurisdiction only over its own members--
Antonin Scalia: Enrolled members.
John Trebon: --However the tribe defines its own membership. Different tribes, I think, have different definitions for that.
Antonin Scalia: Yes, but at the time of 1152, if you assert that Indian there just means an Indian of that tribe, it surely, as you just say, doesn't mean an enrolled member of that tribe since there was no enrollment.
John Trebon: That's correct.
Antonin Scalia: It must mean an Indian who by blood belonged to that tribe.
John Trebon: And the Indian who's considered a member by the tribe itself.
Antonin Scalia: All right.
John Trebon: That, we submit, would... would be the end of tribal jurisdiction and that the state has an interest in any non-member, someone who isn't affiliated by the tribe, who doesn't have the privileges of membership and who's not considered a member by the tribe.
Antonin Scalia: Equivalent to the definition of enrollment?
John Trebon: I don't believe it's exactly equivalent to the definition--
Antonin Scalia: Well, if it isn't exactly equivalent, then you're going to have the void of jurisdiction.
John Trebon: --Well, the void, in fact, in this case, if you decide that the tribe has jurisdiction over enrolled Indians, it's interesting to know that 14 percent of the Pimas and 16 percent of the Maricopas in this case are not enrolled. So the tribe is apparently arguing we want jurisdiction only over enrolled members. We're willing to give up 14 percent of our own Pimas and 16 percent of our own Maricopas. So there's another void created. Pimas and Maricopas won't even be covered by that definition, not all of them, and that represents approximately 6 percent of the total population of the reservation as well. So it's kind of interesting in order to get non-member Indians who are not affiliated with the tribe that they're willing to give up Indians who are, simply because they're not enrolled. We believe that this Court essentially grappled with these issues and answered them not only in Oliphant but also in Wheeler. In Wheeler, this Court construed the same statutes, the same language, and explicitly stated... Wheeler was argued two days apart from Oliphant and decided 16 days later, and in that case the Court explicitly stated that tribes do not have jurisdiction over non-members. And the reasoning of those cases, I think, is particularly applicable here. The Court reasoned that the tribes have the right of self-government. The right of self-government not only involves the same federal interest in law and order but also involves the interest in preserving orderly relations among their members and the traditions and mores of a society, and that those traditions and mores should be preserved through tribal government, through self-government. That necessarily excludes people who are not associated with the tribe as members. They do not share that language. They do not share in those customs and traditions. They share no more in those customs and traditions than Mr. Oliphant. Mr.... Mr. Duro and Mr. Oliphant are indistinguishable before this Court in terms of their ties with the community, their contacts with the community; then Mr. Duro and Mr. Oliphant are similar.
Harry A. Blackmun: Do you think Oliphant was correctly decided?
John Trebon: Yes, Your Honor, I do.
Harry A. Blackmun: It has been criticized.
John Trebon: It has. The thing... Oliphant is not only consistent with history, and in this case we submit as well the history shows that tribes historically did not exercise jurisdiction over non-members. The government did. The Federal Government, to keep peace among the various tribes, took upon it that jurisdiction through treaties. Especially from 1825 forward, they consistently exercised that jurisdiction. The other thing that's consistent about Oliphant and other cases before this Court is that it agrees with the definition of tribal self-government, that tribes have always had the right to determine the relation among their own members but not otherwise. That's true in the tax cases. The state's interest stops with members. The state can tax non-members on the Indian reservation to the same extent that they can tax non-Indians. The infringement against the tribe stops with membership there as well. The Williams v. Lee infringement test has been applied by this Court to stop with membership; it is the bright line that this Court has continuously used throughout to define the integrity of self-government versus the interest of some other government. The interest in this case could be the state or the Federal Government. The argument for the Federal Government is that they have, through treaties, had an obligation to exercise jurisdiction over intratribal offenses. So if 1152 is construed to mean something other than membership in a tribe, then the United States is allowed to abrogate in a sense its treaty obligations with numerous tribes. We don't believe that the Court should do that. And of course, there's a strong equal protection argument here. Why would the Court want to treat--
Antonin Scalia: Would you consider that a treaty obligation or a treaty right?
John Trebon: --Treaty obligation.
Antonin Scalia: Well, why?
John Trebon: An obligation on the part of the United States and a right on the part of the tribe.
Antonin Scalia: Well, you... in these treaties, the United States was given by... by the tribe the right to take care of trials of non-members of the tribe. I would think that I would regard that as a benefit that the United States had under those treaties, not as an obligation that it assumed.
John Trebon: Justice Scalia, I believe that you're mistaken. I don't think the treaties provided that tribes could exercise jurisdiction over intertribal offenses. It provided jurisdiction over intratribal offenses. It generally provided the United States with exercise jurisdiction over intratribal--
Antonin Scalia: That's exactly what I'm saying, but I... but it seems to me that that power on the part of the United States, I... I would not regard that as an obligation of the United States which... which it is repudiating in the statute but, rather, as a right of the United States which it is permitted to give up by the statute if it wants to. I mean, you... you look upon it as an obligation. I'm not sure it should be regarded as an obligation as much as a duty.
John Trebon: --At the time--
Antonin Scalia: As a right.
John Trebon: --At the time that those treaties were negotiated, the United States undertook what I would call an obligation in order to prevent Indian wars. At that time, of course, the United States government considered tribal customs and traditions to be that of the blood avenger between tribes.
Antonin Scalia: They told the tribes, though, you can't... you cannot try members of other tribes. We'll try them.
John Trebon: Correct.
Antonin Scalia: Do you think the tribes thought that the U.S. was doing them a favor when they said you can't try members of other tribes? You thought that that's how they regarded that, as an obligation of the United States?
John Trebon: I would characterize it not merely as a favor, Your Honor, but as an obligation of the United States. But within the scope of Oliphant and its review of history, I would argue that it's... it's through tradition. It's the backdrop of history that this Court must look at to decide this issue, and the backdrop of history in this case shows that the United States exercised that power the same way that it exercised the obligation or the favor, whatever you call it, in Oliphant over non-Indians. And I suppose that's essentially the point here. Why would we want to treat Mr. Duro any differently than we treated Mr. Oliphant? What's the difference between them? There's only one. The only difference between them is that one is an Indian and one is not. It is a distinction based merely upon race. There's no other social reasons. There's no other void reasons. There's no other reason besides treating them differently except that one's an Indian and one is not. After years of assimilation, after Mr. Duro has become a citizen of the United States, we submit that he should be treated equally with non-Indians.
Anthony M. Kennedy: Is it the position of the... of your opponents that Duro could not have resigned his membership in his tribe and thereby avoided jurisdiction?
John Trebon: They say that he could give up his membership.
Anthony M. Kennedy: And that would make him a non-Indian?
John Trebon: It would make him a non-enrolled Indian. I... I find that to be particularly offensive that Mr. Duro would have to give up the last formal vestige of relationship to his tribe in order to enjoy equal rights with all other citizens that are not members of the tribe that are simply non-Indians. Why should he have to give that... why should he have to give up membership in a tribe 500 miles away to enjoy equal rights with other citizens on the Salt River reservation?
John Paul Stevens: May I ask you this question? If this case had arisen prior to 1924 when your client was not an American citizen, would you make the same argument?
John Trebon: I would have made the same argument but for two reasons. Let first say that there's a very good argument that Mr. Duro's ancestors were citizens to the Treaty of Guadalupe Hidalgo or at least entitled to citizen... citizenship rights; therefore, he... his people could have been a citizen in 1848. But to answer the question directly, I think things have changed now. If Mr. Duro would have been treated differently because he was a ward rather than a citizen, then the... but I think that difference relates more to the Federal Government's treatment more than the treatment by another tribe. In fact, the treaties during that time would have generally given the United States the role, if not the obligation or the favor, the role of exercising jurisdiction over those offenses.
Anthony M. Kennedy: Aside from the equal protection point, do you argue that there is any constitutional problem with the United States consenting to the tribes asserting jurisdiction over Duro?
John Trebon: Yes, Your Honor, we do.
Anthony M. Kennedy: What... what is that constitutional argument?
John Trebon: Well, the Indian Civil Rights Act was passed and applied some of the constitutional protections of the Bill of Rights to the exercise of criminal jurisdiction by Indian tribes but not all. It's important to point out that it was a compromise, that it allowed traditions and customs of the tribe which is unique to each tribe to be applied.
Anthony M. Kennedy: But what is the constitutional principle that would be violated if the United States were to say that Duro could be tried by this tribe?
John Trebon: Number one, no right to counsel. Indigents do not have a right to counsel in tribal court. The penalty that can now be imposed in tribal court for each count is one year. No right to counsel. Secondly and most fundamentally, I would argue, is that by the tribal constitutional law, no one but a tribal member can sit in a jury in tribal court; therefore, Mr. Duro, his ethnological group and any other group of non-members cannot sit on tribal juries in tribal court. And, of course, the Fifth Amendment grand jury requirement doesn't apply to Indian tribes either. And, of course, other constitutional rights that are outside of the Bill of Rights that apply are generally you don't have the right to vote. The consent of the governed notion of this country... you don't have the right to vote, you don't have the right--
Anthony M. Kennedy: Do you have any... do you have any cases on... on that... for that proposition?
John Trebon: --Nevada v. Hall, I believe, is a case on point for consent of the governed. But generally, the democratic ideals in this country is that there's... Kagama says there's two sovereigns in this nation. Indian tribes are considered to be domestic dependent sovereigns. United States citizens are not generally submitted... unless the Court does it in this case... they are not generally submitted to courts that are not established under the Constitution that are not afforded the Bill of Rights, that are tried by forums in this country without constitutional protection. And if this Court decides that in this case, it will be doing it for Mr. Duro even though there's no difference between him and Mr. Oliphant, absolutely none. In fact, I think that history will show that especially now in Washington where that case arose from that non-Indians are much more integrated into some Indian tribes than non-member Indians. They're married to BIA employees. They live on the reservation. They own fee land within the confines of a reservation. They have just as many connections as a non-member Indian. If... if you don't find an equal protection violation, per se, then at least you should be guided by notions of fair treatment. If I can, I'd like to reserve a few minutes for rebuttal.
William H. Rehnquist: Very well, Mr. Trebon. Mr. Wilks.
Richard B. Wilks: Mr. Chief Justice, and may it please the Court: Albert Duro came onto the Salt River Pima-Maricopa Indian community reservation with his girlfriend, lived with her, lived with her there for three and a half months, worked for the PiCopa Construction Company, a wholly-owned company by the Salt River Pima-Maricopa Indian community, subjected himself to the laws of the community by committing an offense under the laws of the community and the possession of alcohol and marijuana, pled guilty to the charge brought by the community, was found guilty and was fined. Thereafter, the incident of the firing of the gun took place. He was indicated by the federal grand jury. That indictment was later dismissed with prejudice, and he was charged by the Salt River community in that offense which resulted in the death of a 14-year-old boy who was a member of the Gila River Indian community, which interestingly enough, is also a community made up of Pima and Maricopa Indians. The young boy was a resident of the Maricopa... of the... of the Salt River Pima-Maricopa Indian community. The issue here, I think, is whether the jurisdiction and powers of the Salt River Pima-Maricopa Indian community, which it clearly and without a doubt had at the time of American sovereignty, that is to try and, if guilty... found guilty, to punish offenders against its law, have been diminished since American sovereignty, either by incompatibility with the nature of the dependent status of the Salt River Indian community, or by explicit federal enactments. There have been no explicit federal enactments which, I would submit, limit the jurisdiction of the community in regard to Albert Duro or to such an offender.
Sandra Day O'Connor: Well, the... the Indian Civil Rights Act gives one pause when if that requires us to make an equal protection sort of analysis.
Richard B. Wilks: I don't think it requires an equal protection analysis in this case, Justice O'Connor. The civil rights equal protection provision says that they will not deny equal protection to anyone within its jurisdiction. Non-Indians are not within the jurisdiction of the Salt River community court since Oliphant and, assumably, before that. So there is not a... that kind of invidious distinction can't be made. The... the people who are before are within the jurisdiction of the Salt River court are all Indian people, and by that it must be clear that that means enrolled members of federally recognized Indian tribes. As we have attempted in our brief to point out, when we talk about enrolled Indians, we're talking about a status as this Court has in Fisher and Mancari and Antelope. We're not talking about an ethnic group; Indian people who are enrolled members of tribes can indeed opt out of that status and can indeed--
Antonin Scalia: Mr. Wilks, why just--
Richard B. Wilks: --give up the benefits that accrue to Indian people under federal law and perhaps gain other benefits, as Mr. Duro might have, had he not been a member of a federally recognized tribe.
Antonin Scalia: --Mr. Wilks, why just enrolled Indians? Why do you just limit these rights that you're talking about? If you're appealing to the rights that the tribes had way back in history, how can you limit that principle to just enrolled Indians from other tribes?
Richard B. Wilks: What I did not say, Justice Scalia, is that the rights that the tribes had before American sovereignty have as to criminal jurisdiction over Indians has remained unchanged through history. It has obviously been changed. The... that whole unit of... of... of jurisdical powers has been changed by federal legislation so that, under the Major Crimes Act, federal jurisdiction is had over certain kinds of enumerated crimes. Under the Indian Country Crimes Act and Assimilated Crimes Act, certain acts committed by Indians against non-Indians are in federal court jurisdiction to the exclusion of tribal court jurisdiction. The... the... but... but... the court has or the Congress has defined Indians. They've defined Indians in the Indian Reorganization Act, and they've defined as we have pointed out in our... in the exhibits in our brief, they defined with care what an Indian is, and they've defined it by explaining so that an enrolled Indian under the Indian Reorganization Act is defined, and that's the limitation of it. Now the Indian Reorganization Act as well speaks of Indian by blood quantum. I think that is not a... in practice something which still exists as an enrollment characteristic in tribal constitutions.
William H. Rehnquist: Does... does that act, Mr. Wilks, in effect make all Indians fungible for... for purposes like this?
Richard B. Wilks: I don't know if I'd use that word, Mr. Chief Justice, but I think that the answer is yes, and I think that, for instance, this Court, in Morton v. Mancari, did the same thing or recognized that principle when it upheld the Indian preference law on the grounds that Indian employees of the Bureau of Indian Affairs, even though they are not members of the tribes to which they are assigned, would benefit those tribes in their... in their ability to govern themselves. So that fungibility, if the word is fungibility, I think is there. So what we have is a pattern beginning from before American sovereignty, a pattern where there have been changes, there have been restrictions on Indian jurisdiction, tribal court jurisdiction. And this Court and the executive have noted from time to time what those restrictions are not, because if you have a whole and you've taken pieces out of it and you've said this is in federal court, you leave something. And what has been left, as the Court on a couple of occasions has said, is for the... for the Indian tribes to deal with these questions. So that in Rogers, this tribe or some other would have criminal jurisdiction.
Anthony M. Kennedy: Based on... based on that analysis, if... if we were to find that there was a void here, I take it Congress couldn't cure it by giving the Indian tribes additional jurisdiction without then laying itself open to the charge that they're surrendering the rights of citizens? I mean, I take it there's a difference between sovereignty that exists in the Indian tribes and is taken on the one hand and sovereignty that is reconferred or regranted by the United States?
Richard B. Wilks: That's correct; and as the Court pointed out in Wheeler in an... in the unresolved question as to whether if... if the sovereignty, if the jurisdiction had been accorded by Congress to the tribes, would there then be the dual jurisdictions. Yes, if... if there would be a void if... if the Petitioner were to prevail and that void could be cured, if it would be cured, and if time in passing killed the cure, if it ever occurred, did not result in great harm.
Anthony M. Kennedy: My... my suggestion is that perhaps it could not be cured.
Richard B. Wilks: It could not be totally cured. You're right, Justice Kennedy. It could not be cured, so that the cure would allow this Court to rule as it did in Wheeler.
Sandra Day O'Connor: Well, now, under your view, Mr. Wilks, the tribe has jurisdiction over any enrolled member of any Indian tribe if the offense is committed by that member on the reservation?
Richard B. Wilks: That's correct, Justice O'Connor.
Sandra Day O'Connor: But if the person were not an enrolled member and yet were an Indian living on the reservation but not of that tribe, then the tribe could not exercise?
Richard B. Wilks: That's correct, Justice O'Connor.
Byron R. White: Then there would be a void.
Richard B. Wilks: I think there would not be a void if--
Byron R. White: There would be, wouldn't there?
Richard B. Wilks: --I think there would not be a void.
Byron R. White: Why?
Richard B. Wilks: Because the individual as defined was not an enrolled member of any tribe, of any Indian tribe, and there... of any federally recognized Indian tribe, and, therefore, could be dealt with either in federal or state court, depending on what the circumstances are.
Sandra Day O'Connor: You don't think under federal law that they might look to see if the person was in fact of Indian blood?
Richard B. Wilks: I have some difficulty in answering that definitively because of the 50 percent blood quantum in the--
Byron R. White: Exactly. 1152 and 1153 just speak of Indians.
Richard B. Wilks: --Yes, and I think, as it was earlier pointed out, Indian is now defined. It may not have been defined at the time of the first passage of--
Byron R. White: I know, but it certainly isn't defined as an enrolled Indian.
Richard B. Wilks: --Yes. The Indian is a... an enrolled member of a federally recognized Indian tribe, I believe is the definition, the one... the first definition. The second I believe is a person who may be enrolled, a child perhaps who has not yet been enrolled; and the third is the blood... more than 50 percent blood quantum definition.
Sandra Day O'Connor: And those latter two people wouldn't be covered for purposes of tribal jurisdiction, I take it?
Richard B. Wilks: I... I think that they probably would be, but I... that again... again is not something that has been determined. It seems to me the question here of whether there has been a loss of jurisdiction since American sovereignty over... over member Indians, members of other tribes, has to in the end deal with the question of what the effect of not having jurisdiction would be, what the effect of such a determination would be. And this Court has spoken in... in Brendale and has spoken in Wheeler in regards to what I would view as a... as a bottom line kind of test. Does the removal of jurisdiction or the nonrecognition of tribal jurisdiction impact to the significant disadvantage of Indian tribes so that they wouldn't be able to carry on or not successfully carry on as... as polities, as governmental units. And I think the answer is, as you've seen from the brief filed by the Native American Rights Fund, the amicus brief, with its detail of what's happening now in Indian country, that the large numbers of Indian people of different tribes living on reservations would make the control of... of criminal activity almost impossible. A government, an Indian tribe can't exist in that way, and I think the Brendale test, the test in Wheeler and Antelope covered that.
Sandra Day O'Connor: The problem... go ahead. But any void that might exist wouldn't be a void with respect to serious crimes, would it?
Richard B. Wilks: Would not be... we're dealing only with misdemeanors. We essentially have a tautological question. You don't lose... Indian tribes don't lose their initial sovereignty, initial jurisdiction, simply because it disappears. They lose it because it's incompatible with the dominant sovereign, and they lose it only if it does not have such an effect upon their existence as will tend to... to... to destroy them, terminate Indian tribes. And I would suggest in this situation with the facts that we all know exist in Indian country, with the mobility of Indian people and the many Indian people of different tribes living on reservations not their own, that the effect would be disastrous.
John Paul Stevens: But is that true, Mr. Wilks, if-- --Justice Stevens had a question for you, Mr. Wilks. You're too fast for me, Mr..... I just said is the point you're making valid if we... first of all, it doesn't apply to non-Indian residents of the tribe, in other words, white... white American--
Richard B. Wilks: That's correct.
John Paul Stevens: --citizens of the tribe. And with respect to the non-member Indian residents, two questions. Is the problem with respect to them any different than it is with the non-Indians if you assume that there would be state jurisdiction over these misdemeanors under the McBratney line of reasoning?
Richard B. Wilks: That's a very large leap of faith. I would not... I would not make that assumption. McBratney has just been manhandled earlier here. McBratney--
John Paul Stevens: It, itself, did some manhandling.
Richard B. Wilks: --To some extent.
John Paul Stevens: Yes.
Richard B. Wilks: I don't disagree with that. But at least the rationality of McBratney and its prodigy dealt with... with equal footing, with questions of whether there was--
John Paul Stevens: Right.
Richard B. Wilks: --implicit amendment. We don't have any of that here.
John Paul Stevens: But the gap argument that you make is really the same gap argument that the government made in Oliphant.
Richard B. Wilks: And if that is correct, and I... I--
John Paul Stevens: And it may or may not have been valid. It depends on how one anticipates the state jurisdiction might fill this void.
Richard B. Wilks: --It was not valid, I think, because the state had jurisdiction at the time of Oliphant, and the state does not now have jurisdiction. The State of Arizona has never adopted--
John Paul Stevens: I know not under Public Law 280, that's right, but under the line of reasoning that applied in McBratney.
Richard B. Wilks: --McBratney line of reasoning does not apply, I think.
William H. Rehnquist: Thank you, Mr. Wilks. We'll hear now from you, Mr. Wallace.
Lawrence G. Wallace: Thank you, Mr. Chief Justice, and may it please the Court: Our submission here is based on this Court's analysis in the Oliphant case. Here, as there, there has been no express divestiture of jurisdiction in the tribe by either treaty or statute. Some reference has been made to early treaty provisions which had so-called depredation provisions. Those provided that, rather than engage in warfare with other tribes, compensation would be available for depredations committed by members of other tribes. They were not treaty provisions written in terms of conferring criminal jurisdiction on the Federal Government to prosecute those persons. They provided either for an arbitration process under the auspices of the President of the United States to provide compensation for such depredations or, in some instances, for compensation from the federal Treasury in return for the Indians' agreement not to engage in warfare with other tribes as a result of such so-called depredations. So there has been no express divestiture of the jurisdiction here, and the question is whether its retention is subject to an implied divestiture because it would be incompatible with the status of the tribes as dependent limited sovereigns. The Court concluded in Oliphant that there was such an implied divestiture because of the long historical understanding that the jurisdiction over non-Indians did not exist and because the Federal Government by statute had assumed jurisdiction to prosecute those offenses. The same considerations quite clearly, it seems to us, lead to the opposite conclusion here. From 1817 to the present, the federal criminal statutes applicable to crimes in Indian country have contained an exception for crimes by Indians against the person or property of other Indians. That exception was authoritatively interpreted by this Court in the United States v. Rogers back in 1846. It was the version that has been carried forward ever since, and we have quoted the applicable language on page 12 of our brief, and the exception does not speak of members of a tribe, it says, but of the race generally of the family of Indians, and it intended to leave them as both regarded their own tribe and other tribes also to be governed by Indian usages and customs. That was not an obscure opinion. It was an opinion by Chief Justice Taney for a unanimous court. It is not a lengthy opinion in which this interpretation might be overlooked. The opinion is... the opinion portion of the opinion is only four printed pages in the United States Reports, and--
William H. Rehnquist: And so we might read it. [Laughter]
Lawrence G. Wallace: --And the provision has been reenacted repeatedly, interpreted in an opinion of the Attorney General that we cite, and there has never been any repudiation of that interpretation by Congress as it has carried that provision forward.
Sandra Day O'Connor: But Mr. Wallace, does it raise equal protection concerns, do you think, that kind of race-based division?
Lawrence G. Wallace: Well, we think it is not entirely race based even though as we say there is an ancestral element included in it. Much of the reason that there is commingling of members of various tribes on the reservations today is because benefits are made available by the Federal Government under the authority of Morton v. Mancari and other decisions of this Court to members of tribes regardless of whether they're members of the home tribe. Indian health services are available; employment preferences are available both in the Bureau of Indian Affairs and in tribal enterprises. This has encouraged the living together of Indians and the identification of Indians as tribal persons subject to some unique legal relationships based on their history and on the Constitution's provision in Article 1 that Congress can regulate commerce with the Indian tribes.
John Paul Stevens: Mr. Wallace, can I interrupt you for a moment on the Rogers case? At that time in 1846 when the Court talked about the family of Indians including both members and non-members, all of the members of that family shared the characteristic of noncitizenship--
Lawrence G. Wallace: That is correct.
John Paul Stevens: --which is no longer true. Does that make a difference, do you think? Because now the family of Indians, if you construe it broadly, includes those who have the benefit of American citizenship as well as those who do not.
Lawrence G. Wallace: That is correct, and we don't think that does make a difference. There--
John Paul Stevens: But it makes this difference, doesn't it? At that time there would have been no differential treatment between the litigant in this case and other citizens, whereas now, in order to sustain your position, you must say some citizens are treated differently than other citizens.
Lawrence G. Wallace: --That was the question before this Court in United States v. Antelope, and the Court unanimously held that Congress justifiably could treat members of Indian tribes who are citizens of the United States differently from other citizens with respect to which court has criminal jurisdiction over them and the punishment to which they are subjected. I think that is precisely what was at issue in the Antelope case.
John Paul Stevens: Yes, but the rationale was that they were... there were characteristics which differentiated them from other citizens; namely, their Indian status: But that isn't true here.
Lawrence G. Wallace: But it is true here. These are members of tribes. These are enrolled members of tribes who are in a unique relationship with the Federal Government and enjoy certain benefits and obligations as a result of that, and it changes the tribunals that have jurisdiction over certain offenses that they may commit. It is very similar to the Antelope case in that respect. These are authorized tribunals, the tribal courts, and they are trying citizens of the United States. Members of their own tribe are citizens of the United States. And we don't believe that there is a jurisdictional gap of any kind.
Sandra Day O'Connor: Well, what about non-enrolled?
Lawrence G. Wallace: While that question need not be faced in this case because we're dealing with an enrolled member, we think that if... if a person is eligible for enrollment as a member and has not repudiated membership in the tribe, that that person should be treated the same as an enrolled member for these purposes just as someone who hasn't registered to vote. If it's just a formality that has kept someone off the rolls, that would not be a repudiation of tribal identification.
Byron R. White: That's really allows a construction of the federal statute.
Lawrence G. Wallace: It does, but--
Byron R. White: And if you can construe it that way, you might be able to construe it some other way.
Lawrence G. Wallace: --Well, that is correct, but otherwise you would get into a peculiar anomaly with respect to the members of the tribe itself who are resident on the reservation, some of whom may not have bothered to get their names onto the tribal rolls; and why they should be treated differently with respect to the tribal court's jurisdiction is not apparent.
Anthony M. Kennedy: Under that line of reasoning, I take it that Duro could not opt out his Indian status?
Lawrence G. Wallace: Duro can opt out. Any person can resign his membership but not retroactive.
Anthony M. Kennedy: Well, why, if you say he's entitled, if... if the test is he's entitled to enrollment?
Lawrence G. Wallace: No, and I... but I... I added and he has not repudiated his membership in the tribe. If a person does not want to be treated as a tribal member but wants to be treated as any other citizen, that is his right.
Byron R. White: Well, then he would... he would not be an Indian with respect... in the... the--
Lawrence G. Wallace: In any of the jurisdictional statutes.
Byron R. White: --He would not be considered an Indian even though he was just because he wasn't enrolled and that he had opted out.
Lawrence G. Wallace: That's correct, but not retroactively. At the time of the offense--
Byron R. White: Well, I know, but then... then he be subject to federal jurisdiction.
Lawrence G. Wallace: --Or even or to state jurisdiction if there was no Indian involved in the crime. He would not--
Antonin Scalia: Are there laws, Mr. Wallace, under which we treat unenrolled Indians who are eligible for enrollment but have chosen not to enroll the same as enrolled Indians?
Lawrence G. Wallace: --There's no decision of this Court on the subject, but I think the logic of the Court's decisions are assumed in the 19th Century that Indians are all members of tribes. Enrollment is something that came much later. And as I say, in this case enrollment is satisfied, and we don't have to face up to that problem. Either way, we think there would not be a jurisdictional gap, but we think that the jurisdiction of the tribal court would extend beyond enrollment. The other case--
Anthony M. Kennedy: Mr. Wallace, if... if... if we were to read 1153 to mean tribal member as the Petitioners here wish us to, should we read the exception clause in 1152 the same way to prevent the void from arising?
Lawrence G. Wallace: --Well, there would still be a considerable problem when the... when an Indian was involved in the crime. I don't see how the state would have jurisdiction when it has not--
Anthony M. Kennedy: Well, the Federal Government... the Federal Government--
Lawrence G. Wallace: --through Public Law 280, and that would require a reinterpretation of that exception. It would really mean that the Rogers interpretation is being changed by the Court even though Congress has seen fit to carry forward this provision and has never questioned that interpretation. The... the other case that I want to call to the Court's attention that I think sheds considerable historical light on this was the interpretation initially of the Major Crimes Act provision in United States v. Kagama, this Court's 1886 decision. At page 383 of Volume 118, the Court made very clear that it was reading the Major Crimes Act which was enacted because state courts did not have jurisdiction and these major crimes would only be subject to tribal courts, and they were worried that the tribal courts would not deal adequately with these major crimes. And the Court ruled, again unanimously, in a reasonably concise opinion, that the fair inference is that the offending Indian shall belong to that or some other tribe. It does not interfere with the process of state courts within the reservation, or nor would the operation of state laws upon white people found there. It was quite clear that the state courts were thought not to have jurisdiction over members of other tribes. Its effect is confined to the acts of an Indian of some tribe of a criminal character committed within the limits of the reservation. That was the category of offenses that correspondingly were within the jurisdiction of the tribal courts and where Congress felt that for major crimes the tribal court should not be relied upon but they still were being relied upon for the minor offenses, the minor assaults, domestic violence, disorderly conduct, the same offenses on which we continue to rely upon the tribal courts to keep law and order on the reservations. And this case is of great practical importance to the ability to maintain law and order on the reservations. We have been striving--
Antonin Scalia: --Why is that so? I mean, there... there... there are more white... there are more white residents on the reservation who are not subject to the tribe than there are residents of other kind by a... by a good deal.
Lawrence G. Wallace: --On many reservations that is true, and those are the reservations where other enforcement authorities tend to be more available. But on the ones where it's mostly other Indians who are residents, there isn't much else to rely on.
William H. Rehnquist: Thank you, Mr. Wallace. Mr. Trebon, you have three minutes remaining.
John Trebon: Thank you. There's no compelling reason for this Court to add another crazy patch to the quiltwork of Indian law. The bright line that's been established by this Court in not going back to Rogers but in United States v. Wheeler should be applied here. Rogers doesn't control this case. Oliphant and Wheeler do, but not just language in those cases. The rationale of those cases apply here. Let me clear up some confusion I may have caused. We are suggesting one solution is to read 1152 to mean member on member. We still believe that 1153, the Major Crimes Act, would apply to any Indian on the reservation. Heretofore, that has not meant enrolled member. That is not a definition as Congress used... has used, and we don't believe that that has been applied in the past. You'd have to rewrite all the federal statutes in order to gain this argument for the Respondents so that you can shift one void to another. It's clear, I think the Court can see, from the questioning thus far there's not... you're not going to avoid a void by deciding this case in a certain way.
Byron R. White: How would you like us to read 1152?
John Trebon: I believe 1152... and just not my opinion but the legislative history, we believe, supports that it should be member on member. The tribal court would have jurisdiction over member on member. If it's a non-member crime, it goes into federal court or into state court if they can... if they can argue, in a subsequent case, that the state interest is great enough to extend the McBratney line of cases.
Byron R. White: But what about an enrolled Indian who says I want out and I opt out and he's no longer an enrolled member and doesn't want to be? What about 1153? He would still be an Indian, wouldn't he?
John Trebon: Of course. He's an Indian by federal definition. If he's over... if he's over 25 percent Indian blood under some definitions he is. Under the Indian Reorganization Act, if he's over 50 percent blood, he is. And this Court I hope is not going to create an incentive for enrolled Indians to disenfranchise themselves with their own tribes in order to gain equal rights with other citizens. I mean, hopefully we get back to the position sometime in this case that Mr. Duro and Mr. Oliphant are exactly the same except for one fact: one's an Indian and one is not. Why should we treat them differently? This Court in the United States... in Antelope didn't say that you could. Indians are tried under 1153 in federal court, and so are non-Indians. They're both accorded the same rights. There was no racial classification created in Antelope. Federal jurisdiction was exercised over both. Here, tribal jurisdiction would be exercised over one group but not another, even though they're generally within the class of non-members simply because one is an Indian and one is not. The analysis is pretty cohesive if you apply the same rationale that you used in Wheeler, that you used in Oliphant, that you've used in Rice v. Rehner, that you use in the tax cases, that you use when you applied the Williams v. Lee infringement test. In all cases, the same rationale applies here, and tribal government is preserved, in fact greater so, because the tribe can still continue to exercise not only jurisdiction over its own members but they can apply the customs and traditions and mores that they have always applied in tribal court. They don't have to have the Bill of Rights applying to them. We don't have to destroy tribal sovereignty in order to gain jurisdiction over this void.
Byron R. White: Could your client be charged and tried and tried by his own tribe for this offense?
John Trebon: Very good argument that he could. Tribes have always exercised personal sovereignty, not territorial sovereignty. In this court, the Ninth Circuit in Settler v. Lameer and even the CFR regulations provide that they have jurisdiction beyond their boundaries--
Byron R. White: So if you win, there isn't any gap at all?
John Trebon: --That's true.
William H. Rehnquist: Thank you, Mr. Trebon. The case is submitted.