Warren E. Burger: We will hear arguments first this morning in New Mexico, et al against the Mescalero Apache Tribe. Mr. Dunnigan, you may proceed whenever you are ready.
Thomas L. Dunigan: Mr. Chief Justice, and may it please the Court. The issue in this case plainly stated is simply does the State of New Mexico have the authority concurrent with the Mescalero Apache Tribe to regulate hunting and fishing by non-Indians on the Mescalero Apache reservation. The history suggests that it does. Since New Mexico became a state in 1912, it has had fish and game laws in a state-wide wildlife conservation program. It has applied its game and fish laws to non-Indians hunting and fishing within all areas of the state during this period of time. For approximately the last 15 years since the Mescalero Apache Tribe has allowed public hunting on its reservation, the State of New Mexico has applied its game and fish laws to non-Indians who have hunted or fished on that reservation as it has with respect to each of the other 26 Indian reservations or enclaves located in the State of New Mexico. During this period of time the state has not only enforced its wildlife regulations, but the wildlife on Indian lands has benefitted from the full range of conservation programming that the state has provided over time on a state-wide basis. In 1977, however, the Mescalero Apache Tribe passed a hunting and fishing ordinance which specified in part that a state hunting and fishing license would no longer be required of any person hunting or fishing on the Mescalero Apache reservation. Up until that time the Mescalero Tribe had acknowledged in its hunting and fishing brochures that state game and fish licensing regulations and the entire state game and fish wildlife regulation did apply to non-Indians hunting or fishing on the Mescalero Apache reservation. The passage of the new ordinance in 1977 followed soon after the opening by the tribe of the Inn of the Mountain Gods on the reservation. The Inn of the Mountain Gods is a deluxe tourist resort featuring a hotel, a lake for fishing, boating and water sports, a golf course, tennis facilities, shooting range, a stable, and various other tourist and convention-related recrecational facilities and activities. The Inn was opened by the Mescalero Apache Tribe as part of a tourism program organized by the tribe and intended to attract non-Indians onto the reservation and to the Sierra Blanca ski resort, which is a tribal commercial enterprise located adjacent to the reservation. In connection with the opening of the Inn of the Mountain Gods, the Mescalero Apache Tribe also expanded its hunting and fishing business to include big game animal hunts known as package hunts. Package hunts include hunting fees, lodging at the Inn of the Mountain Gods, guide service and various other hunter needs.
Warren E. Burger: Well, would it make any difference, Mr. Dunnigan, how much of the activity the Mescaleros were engaged in, whether it was one resort or a great many, a small amount or a great deal of this hunting?
Thomas L. Dunigan: No, Your Honor, I don't think that the amount or the size of the commercial enterprise of the tribe has any jurisdictional significance.
Warren E. Burger: How do you distinguish it from the logging operations, for example?
Thomas L. Dunigan: Well, Your Honor, the logging operations were conducted by non-Indian companies together with Indian enterprises.
Warren E. Burger: The Indians could have done it all on their own if they wanted, had they had the equipment and the personnel.
Thomas L. Dunigan: Yes, Your Honor, I presume that is true. In that respect there is no difference between the cases. There is a difference, though, in terms of the federal regulatory scheme that applied in that case, in the White Mountain Apache Tribe v. Bracker case to which you refer as opposed to the one that applies in this case. For that reason, the cases are distinguishable, not because there is a difference in the commercial enterprise at stake.
Sandra Day O'Connor: Mr. Dunnigan.
Thomas L. Dunigan: Yes, Your Honor.
Sandra Day O'Connor: The Court in Montana v. United States, of course, recognized that an Indian tribe can prohibit non-members from hunting and fishing on the reservation or can allow them and condition that permit as the tribe determines. Now how do you reconcile what New Mexico is asking for here with that case because it would seem that if the tribe has a right to condition the hunting and fishing as described in Montana, that the right would be meaningless if a state were allowed to apply inconsistent regulations.
Thomas L. Dunigan: Your Honor, I recognize that the Montana case articulates the principles you have described, and we do not argue that the Mescalero Apache Tribe does not have the right to admit hunters or fisherman if it desires or preclude hunting and fishing if it desires. It can also establish terms and conditions for hunting and fishing if it so decides. The Montana case certainly permits that. But the Montana case did not suggest that when a tribe enjoys this authority over non-Indian visitors on its reservation, that that authority is exclusive of state authority which normally applies to non-Indians.
Sandra Day O'Connor: But they could be totally inconsistent. For instance, I do not know what the circumstances are here, but a tribe might develop the game to such an extent that it can offer people a chance to take five elk whereas the New Mexico requirements might permit someone to take only one, and the two would be quite inconsistent.
Thomas L. Dunigan: Your Honor, you suggest an extreme case, which is not a part of the factual situation here, but I acknowledge that, built in to a system of concurrent jurisdiction is the possibility of conflicts arising between the two sets of laws. Our position is that the State of New Mexico as a sovereign continues to have the authority to apply its laws to non-Indians who are not immune from those laws as Indians are and that a reservation does not provide that immunity to a non-Indian unless that non-Indian can claim that he, too, is excused from obeying state law because there is a federal law that preempts those state laws that he has to abide by instead, or that his relationship with the tribe concerns a matter of the internal governmental relations of the tribe and for that reason tribal law alone controls. But under normal circumstances as the cases that this Court has decided suggests that the normal circumstance is concurrent jurisdiction in those situations when a tribe does enjoy jurisdiction over non-Indians, which is not always the case. The importance of the Montana case to this case, in fact, is the statement in that case that as a general proposition, and those are the words of this Court, as a general proposition the inherent sovereign authority of an Indian tribe does not extend to non-Indians. That is the normal proposition. The Court did articulate and identify circumstances in which an Indian tribe may regulate activities of non-members. In fact, the Court said that a tribe may regulate through taxation, licensing and other means the activities of non-members who enter into consensual relationships with the tribe through commercial dealings, contracts, leases, and the like. And that may very well be the case here. But--
Harry A. Blackmun: Mr. Dunnigan, perhaps I am mistaken, but I thought the record does disclose conflicts between the state system and the tribal system particularly as to the taking of deer, that does may not be taken under the state regulations, but under the tribal ones a buck and a doe could be taken. Am I mistaken?
Thomas L. Dunigan: --Your Honor, no, you are quite correct.
Harry A. Blackmun: So we do have some very definite conflicts as Justice O'Connor indicated?
Thomas L. Dunigan: Your Honor, we do have conflicts. We do not have the particular one that Justice O'Connor identified or any one quite that dramatic, but we do have conflicts in the regulations. There is no question about that. If we had not, perhaps this case would not have arisen. But I am not suggesting, Your Honor, and I did not mean to leave the impression that there are no conflicts in those laws. We recognize that and we recognize the potential for others. What we are saying, however, is that the state nevertheless enjoys the right it has as a sovereign to apply its laws to non-members of an Indian tribe unless, again, those laws under the decisions of this Court have been preempted by a federal regulatory scheme or that the sovereign powers of the tribe with reference to the governing of its own members and their internal affairs would be disrupted and frustrated in a given instance.
Harry A. Blackmun: Well, as I understand your position, you want the state regulation uniformly applied to non-Indians all across the state.
Thomas L. Dunigan: That is correct, Your Honor. That is our position.
Harry A. Blackmun: And that there should not be an exception of a cuna so to speak for the Mescalero reservation?
Thomas L. Dunigan: That is correct, Your Honor, or for any one of the other 26 Indian reservations or enclaves located in New Mexico which together comprise over 7 million acres of land and 11,000 square miles, approximately 10 percent of the land area of the State of New Mexico and located in virtually every region or part of the state.
John Paul Stevens: Mr. Dunnigan, it seems to me there might be two different types of problems. One is the substantive regulation as to how many animals of different kinds you can kill and the like and another the licensing restriction. What is the state interest in having the right to license people to hunt within the reservation?
Thomas L. Dunigan: Your Honor, that is in our statement--
John Paul Stevens: If they had their own licensing system, which I guess they do.
Thomas L. Dunigan: --I am sorry, Your Honor?
John Paul Stevens: Assuming the Indians have their own licensing system which I guess they do.
Thomas L. Dunigan: Yes, Your Honor, they do. The interest of the state in licensing per se is that the licensing permit system is an essential part of the overall conservation program of the state. Through the licensing mechanism, the state is able to control the harvest, is able to ascertain also the success ratio of particular hunting seasons and in particular areas, and for that reason, the licensing system in the judgment of the Department of Game and Fish of the state is an essential ingredient in the overall conservation program of the state as well as are the substantive regulations pertaining to the season dates, bag limits, and the like.
Thurgood Marshall: Am I in error that it is agreed that the Indian licensing procedure is a good one? Isn't that admitted?
Thomas L. Dunigan: Your Honor, we recognize that the tribe has a licensing permit system and have no quarrel with their right to impose one. The record does indicate that at the present time the ordinances of the tribe maintain a sufficient wildlife population on the reservation to be consistent with wholesome conservation circumstances.
Thurgood Marshall: So, where does the state get this additional interest?
Thomas L. Dunigan: Well, the state's interest, Your Honor, is--
Thurgood Marshall: Its interest is that they do it... Their signatures on there are better than the Indian's signature on the license?
Thomas L. Dunigan: --No, Your Honor, it has nothing to do with whether one licensing system is better than another. It has to do with the authority of the state to apply its laws to non-Indians anywhere within its borders--
Thurgood Marshall: You never applied for that under the federal law, did you, the right to jurisdiction over the Indian reservation, did you?
Thomas L. Dunigan: --The--
Thurgood Marshall: New Mexico did not. Is that right?
Thomas L. Dunigan: --New Mexico is not a Public Law 280 state, no, Your Honor.
Thurgood Marshall: That is what I mean.
Thomas L. Dunigan: But in our view--
Thurgood Marshall: Where did they get it from?
Thomas L. Dunigan: --I am sorry, Your Honor?
Thurgood Marshall: Where does New Mexico get it from?
Thomas L. Dunigan: Well, Your Honor, in our view the Public Law 280 is not the only source of authority for a state to exercise jurisdiction over non-Indians within its borders.
Thurgood Marshall: My question was where did you get it?
Thomas L. Dunigan: Our authority over non-Indians, Your Honor, stems from the fact that New Mexico is one of the 50 sovereign states of the union and was admitted to the union on equal protection with other states who have the authority within their borders even on Indian land to apply their laws to non-Indians unless, again, those laws have been preempted by a superior congressional enactment and scheme of regulation or unless in a particular situation the non-Indian is acting in relationship to the tribe so that the internal governmental affairs and social relations of the tribe are intimately involved in that situation.
Thurgood Marshall: Like in Montana v. United States?
Thomas L. Dunigan: Yes, Your Honor, and Confederated Tribes of the Coville Indian Reservation v. Washington, and Thomas v. Gay, and Mescalero v. Jones.
Thurgood Marshall: This case was sent back on Montana and not on any other case.
Thomas L. Dunigan: That is correct, Your Honor. This case was here once before pursuant to a petition for certiorari which the state filed after the original decision of the Tenth Circuit. On its first visit this Court summarily remanded the case to the Tenth Circuit. This Court vacated the judgment of the Tenth Circuit, remanded the case for reconsideration in light of this Court's decision in the Montana case. On remand, however, the Tenth Circuit simply reinstated its original decision and dismissed this Court's decision in the Montana case as essentially irrelevant to a decision in this case. And the Tenth Circuit sought to explain its decision in that regard by suggesting that the Montana case involved non-Indian fee lands within the Crow reservation and the question of whether a tribe, being the Crow tribe in that case, could impose or regulate non-Indian hunting and fishing on those non-Indian fee lands whereas this case involves tribal trust lands within a reservation and the authority of a state to regulate non-Indian hunting and fishing within those tribal trust lands. Now, these differences, of course, do, in fact, exist between these two cases, but that much was evident when this Court originally remanded this case back to the Tenth Circuit in the first place. So despite these factual differences, the Montana case remains crucial to this case because of one of its underlying principles. The Montana case, as I indicated earlier, stated, as had this Court in Oliphant v. Suquamish Indian Tribe and Wheeler v. United States, that as a general proposition the inherent authority of a tribe does not extend to non-Indians. The basis of the Montana case was not that non-Indian fee lands were involved but that non-Indians were involved. The Court did not say that tribal laws do not apply on non-Indian fee lands. It said that tribal laws do not apply to non-Indians as a general rule regardless of whether--
Sandra Day O'Connor: But you have a statute here, 18 U.S.C. 1165 in which Congress has indicated that there is a right of the tribe to regulate the hunting and fishing on the reservation as to non-members.
Thomas L. Dunigan: --Your Honor, we recognize that 1165 provides a criminal trespass penalty, a federal criminal trespass penalty to be imposed upon a person who enters a reservation without the permission of the tribe for purposes of hunting or fishing. It does not regulate the conduct of a person on the reservation in terms of his hunting and fishing activity. It does not recognize, Your Honor, as you suggest that the tribe has the authority to impose regulations that would oust state law if that was the Justice's suggest.
Sandra Day O'Connor: Well, certainly the statute unlike, for example, the liquor statute, it does not indicate that the hunting and fishing has to be done in conformity with the laws of the state. That language is absent from this hunting and fishing statute. Isn't that so?
Thomas L. Dunigan: That is correct, Your Honor. The penalty imposed by that statute does not require that a state law be violated before it is implemented. But again it is only a criminal trespass statute as the legislative history clearly suggests. It does not punish anything other than entry without permission, and for that reason it does not provide the comprehensive regulatory scheme with regard to hunting and fishing that was apparent or present in the Bracker case with reference to the logging and timber operations involved in that case. The problem with the original decision of the Tenth Circuit in this particular case was that it failed to recognize, either in its original decision or on remand, the general proposition which this Court stated in Montana that non-Indians are normally not subject to tribal law. In fact, it inverted that principle and started at the threshold with the observation that in the area of game and fish regulation the inherent sovereign powers of a tribe extend to non-members and they are exclusive, in the judgment of the Tenth Circuit. In that regard, the Tenth Circuit has fashioned essentially a new rule of law which has no judicial authority to support it whatsoever. It is certainly squarely in conflict with this Court's judgment in the Montana case as well as many other cases in this Court, one, for example, being Washington v. Fishing Vessels Association which clearly held that an Indian tribe does not have complete dominion over the taking of any species even though it may have a treaty right to hunt and fish free of state regulation. So we have here a situation in which the Tenth Circuit has adopted a position in this case which is virtually synonymous with the position advocated by the Solicitor General in Bracker and in the Ramah Navajo case but rejected by this Court to the effect that on-reservation activities affecting a resident tribe should be considered presumptively beyond the reach of state law by operation of the principle of tribal sovereignty. So that in that situation a state would have to establish its jurisdiction over non-Indians by pointing to a specific congressional delegation of authority to exercise its power, or it would have to show an essential need to regulate in support of a vital state interest. But this Court said no to that proposition in Bracker and in Ramah and it should say no to the Tenth Circuit's formulation of the same principle in this case. As we discussed earlier, the Montana case did recognize that there are situations in which tribal ordinances may be applied to Indians, but in those situations as a general proposition state law remains concurrent with tribal law unless again there has been a federal regulatory scheme based upon congressional legislation and implementing regulations which preempt state law and that requires an examination of the particular context to determine if there is such legislation, if there are such regulations and then a particularized inquiry into the nature of the state, federal, and tribal interests is initiated to determine whether or not in the specific context of a particular case the exercise of state authority would violate that particular regulatory scheme. In this case, the Tenth Circuit did embark upon that inquiry eventually, choosing not to rest its decision entirely on its novel formulation respecting the exclusive tribal sovereignty over non-Indians where wildlife is concerned. But the inquiries it made were so distorted by the threshold view that it had adopted that its inquiries really cannot withstand critical examination in light of the authorities articulated by this Court. For example, in conducting its inquiry with regard to preemption, the Tenth Circuit noted that when a state asserts authority over the conduct of non-Indians what is called for is a particularized inquiry into the nature of the various state, federal, and tribal interests at stake. What the court below failed to recognize, however, is that before one engages in a particularized inquiry into the nature of the interests at stake, there must be a point of departure, a frame of reference, a context in which to conduct that inquiry. And that context is the existence of a congressional enactment or set of laws and a set of implementing regulations which establish a comprehensive and pervasive scheme of federal regulation over the activity in question. As this Court said in the Ramah case, it is federal law reflecting the various federal and tribal interests which must be found in order for state law to be preempted. One does not simply view the interests at stake, add them up, or weigh them in the abstract. On the contrary, unless there is federal legislation and implementing regulations, there is no question at all of preemption. For example, in the White Mountain case this Court considered whether or not the State of Arizona may impose certain taxes on non-Indian logging and timber companies, as we have previously described. In finding these laws preemptive, this Court said that in that situation the federal government's regulation of the harvesting of Indian timber is comprehensive. In the words of the Court, that regulation takes the form of acts of Congress, detailed regulations promulgated by the Secretary of Interior, and day-to-day supervision by the Bureau of Indian Affairs. In the Ramah case similarly, for example, this Court declared New Mexico's gross receipts tax as applied to a non-Indian construction company building a school for Indian school children on the reservation to be preempted. But in that case the Court pointed to the Indian Self-Determination in Education Assistance Act, the Indian Financing Act of 1974 and the regulations promulgated by the Secretary of the Interior thereunder, which among other things gave the BIA wide-ranging authority to monitor the entire construction program. In that context, this Court found that the imposition of additional state burdens on that federal regulatory scheme would not be permissible, the state interest being simply raising revenue. But again the preemption analysis begins with an examination of the context in which it arises to determine if there are congressional enactments, laws of the United States, and regulations of the executive branch which establish a federal regulatory scheme with respect to which the state is not permitted to intrude. Short of that, there is no question of preemption, and state laws prevail with respect to non-Indians on Indian land. With reference to the question of infringement in this case, it is based really upon two points. One being the possible financial impairment to the tribe's revenues as a result of the application of state laws and the claim that implementation of state regulation over non-Indians would create conflicts in the dual regulatory schemes. As we have indicated, that conflict alone as this Court has indicated in the Coville cigarette tax cases is not a basis for a determination of infringement. With reference to the claim of financial impairment, factually that has not happened in the case. In fact, revenue levels have increased both with respect to the hunting and fishing business of the tribe and with respect to the operation of the hunting and fishing program itself. If the Court please, I would like to reserve the rest of my time for rebuttal.
Warren E. Burger: Very well. Mr. Fettinger.
George E. Fettinger: Mr. Chief Justice, and may it please the Court. We are discussing here today a value generated on an Indian reservation. The Mescalero Apache Tribe, for example, imported the elk. It nurtured them. It protected them. It abstained from harvesting them for a long period of time, and it now has a herd of elk that can supplement a complete tourism development program on the reservation. The Inn of the Mountain Gods is a fine resort, part of which is there to assist non-Indian hunters, most of whom are from outside the State of New Mexico, in their endeavors to hunt and to fish on that reservation. Why did the tribe do this? They did it to protect the resource, quite obviously. In this particular case we had an additional reason for doing this and that was to maximize the economic yield to the Mescalero Apache Tribe of their whole tourism program, and in order to provide income for governmental and other economic development purposes on the reservation. This is not an attempt to market anything resembling a tax break because we are selling cigarettes on that reservation. Very simply, the quality of the product that is being provided by the tribe in this case far exceeds anything that is available anyplace else in the area. The facility is better than anything else in the state, and there is no contest on that. The reason people pay--
Warren E. Burger: Would it make any difference if it were not?
George E. Fettinger: --No, sir, but the reason people will pay substantial money for a package hunt on the Mescalero Indian Reservation is because it all fits together. It is a complete package. Even if it were not, the value of the elk on that reservation are a product of the tribe, not a product of any state activity, and it is because we can provide trophy elk hunting on the reservation with guides, circumstances that hunters find better than any place else. It is that reason that this particular enterprise has been economically successful, and in this particular instance we are talking about the elk. That is not the only issue in the case. Back in 1966 we, in fact, had 13 elk in the vicinity of the reservation. It was because of tribal activity that we subsequently imported in 1966-67 about 162 elk from Wyoming, and it is true that the State of New Mexico gave us a permit to import those elk into the state. The record does not reflect any substantial additional involvement by the State of New Mexico in the development of that herd. I would like to point out that, on the record, 11 years later we had in excess of 1,200 elk on the reservation. I might point out to this Court that we have a herd of cattle in the neighborhood of 6,000 head on the reservation. We have obviously permitted the elk to graze in the same area that could otherwise be occupied by our cattle. Quite obviously, significant range development has occurred. We have not reduced the herd of the tribe during the intervening period, and that is an economic decision. That is forebearance on the part of the tribe in raising cattle on the reservation in order to develop this herd of elk for other purposes to supplement as an economic enterprise on the reservation a total tourism development program. Incidentally, the State of New Mexico in this case benefits from the activities of the tribe. The elks, we cannot keep all of them on the reservation as much as we would like to, and in fact the hunting has been enhanced in the immediate vicinity of the reservation to the benefit of non-Indian hunters who hunt off of the reservation. That, I think, makes us significantly different than essentially any other case than we have had before this Court. One other item I would like to point out--
William H. Rehnquist: Mr. Fettinger, is the hunter going to run into any problems knowing when he leaves the land that is governed by state licensing and going onto the Indian reservation?
George E. Fettinger: --Mr. Justice Rehnquist, the reservation is one, mountainous terrain to begin with. It is not flat. It is essentially fully fenced. There is one area that goes up Sierra Blanca Mountain, that mountain being 12,004 feet high, there is some portion of that because the reservation line runs just a few feet to the side of the peak. But other than that the reservation is essentially fully fenced, and we do have signs that indicate this. We have made a conscientious effort to notify hunters when they are on the reservation and when they leave the reservation. Incidentally, I might--
Byron R. White: Aren't the elk free to leave the reservation?
George E. Fettinger: --Unfortuntely, we would have to concede that our elk are perfectly healthy and well able to go over a four strand barbed wire fence in one bound.
Byron R. White: Or through it?
George E. Fettinger: Hopefully not through it. It tends to damage the merchandise a little bit, Mr. Justice.
Byron R. White: Well, they do nevertheless.
George E. Fettinger: Yes, sir. They do go through it, and we have seen that unfortunately happen, but, in fact, most of them--
Byron R. White: Do they roam mostly for food?
George E. Fettinger: --No, sir. I think our range conservationists, and I think generally the facts of this case... although in answering your question I will go beyond the facts of the case... we do have adequate winter and summer range on the reservation to accommodate this herd. However, the nature of the animal is that the grass is always greener. They do go over the fence, and they are hunted over the fence. There is no question of that. But we are not talking about owning these animals on that reservation, and frankly we--
Byron R. White: What damage to the tribal interests would occur if the state regulation were able to be enforced against non-Indians?
George E. Fettinger: --Several--
Byron R. White: That would add another expense, I suppose, to the hunter. He would have to have a state license, which is not cheap, I do not suppose.
George E. Fettinger: --No, sir. The state has a habit of raising their licensing fees just like the tribe does, incidentally.
Byron R. White: Are a lot of your people from out of state?
George E. Fettinger: Yes, sir. Generally speaking--
Byron R. White: What is the out of state game license in New Mexico for an elk?
George E. Fettinger: --It runs about $200 plus... no, it went from $300 to $500 with the last session of the legislature, I believe, on some of the exotic animals. I have--
Byron R. White: What about elk?
George E. Fettinger: --Elk, I believe, is in the $250 range.
Byron R. White: What other damage... I suppose that would be a deterrent. You might get fewer customers.
George E. Fettinger: Mr. Justice White, it is not just a matter of the economics. As Justice O'Connor was pointing out, we have, for example, four different seasons during which you can hunt bull elk. The reason we have four different seasons is because we employ our tribal members as conservation officers, and we wish to use them more efficiently. We employ part-time many of the tribal members to provide access control--
Byron R. White: I suppose you would want to control the number of elk?
George E. Fettinger: --Sir?
Byron R. White: I suppose you also want to control the number of elk.
George E. Fettinger: We are doing very well at controlling the number of elk. They are multiplying very rapidly. The herd is very healthy, and we have an adequate stock--
Byron R. White: If you had only one season a year it might be a little problem.
George E. Fettinger: --We could have too many elk, I presume, but they conceive that our game management is workmanlike at worst case, so that we do not have that problem. But to answer your question on the--
Byron R. White: What would the state do... how would application of the state law to any individual white hunter interfere with your having more than one season?
George E. Fettinger: --They have a season that they suggest to us by their lawsuit that we must--
Byron R. White: Any white hunter that wanted to hunt in one of your seasons that did not fall within the state season would be subject to arrest, I guess?
George E. Fettinger: --Yes, sir. They have enforced their... when the state says they have enforced their laws and regulations since 1969 as regards the reservation they mean that they have accosted our hunters once they leave the reservation, and they have been--
Byron R. White: They would arrest people with... who had elk in excess of the bag limits, I suppose.
George E. Fettinger: --No, sir. They arrested them when having one elk, on the theory they did not have a New Mexico license at the time, and they have on one occasion stopped a rental vehicle operated by the tribe with elk meat frozen in the back in order to check the names to see that everybody had the appropriate licenses from the state. That is what started this lawsuit.
Byron R. White: How large is the reservation?
George E. Fettinger: Four hundred sixty thousand acres, which is--
Byron R. White: How many?
George E. Fettinger: --Four hundred sixty thousand acres. It is essentially--
William H. Rehnquist: What is that? About 1,000 square miles? 800 square miles?
George E. Fettinger: --I have never worked it out in terms of square miles, Mr. Justice Rehnquist, but--
William H. Rehnquist: Six forty into 460, yes.
George E. Fettinger: --Can we do our arithmetic later? [Laughter] The fact is that there is only one tract of 160 acres within that that is privately owned and that is over on the side of the mountain. In addition to that, there is 24 other acres.
Byron R. White: How many non-Indians live on the reservation?
George E. Fettinger: Not very many. Most of the non-tribal members are themselves Indians because they are employees of the BIA. There is only 14.4 acres that is privately owned within the reservation today, and there are a few non-Indians within that group but not very many. They are not a problem. They are not pertinent to the case. There is no significant number.
John Paul Stevens: Mr. Fettinger, I am interested in the legal theory that supports your position. I understand the equities of the case as you describe them, but would the same principle apply if you did a poor job or just an average job of managing your game resources?
George E. Fettinger: No, sir. If I might suggest to the Court that I think that the fact that the state has stipulated that the tribe has a workmanlike program for the protection of game animals is significant to this case. It is something that has been absent in other cases, and I would suggest that perhaps the existence of--
John Paul Stevens: What if we had a case in which they agreed you handled the elk well, but you did not handle the antelope very well, say, or something like that, that there were some areas where you were superb and some areas in which they regarded you as deficient. Would the constitutional rule be that you could regulate those where you did a good job but not regulate those were you did a poor job?
George E. Fettinger: --I might suggest to the Court that the Court has already said that the species, perhaps, is pertinent, and you cannot chase the last steel head into the net theory might be applicable to this sort of a case dealing with an Indian reservation. If, in fact, you have a comprehensive game program and it is working, then why does the state need to have jurisdiction over the reservation?
John Paul Stevens: But lots of times lawsuits are not that easy, you know, the facts are in dispute. I am just wondering is your principle limited to the case in which the state will stipulate that you have a comprehensive and effective--
George E. Fettinger: No, sir. There are many points that have been covered in regard to both preemption and in the interference with tribal government. Both of those series of arguments carry in this particular case because you are talking about the management of the range land on the reservation itself. You are talking about substituting game animals for cattle, for example.
John Paul Stevens: --Your theory is not limited to a well managed tribe. Is it limited to game resources? Let me ask you, suppose on your resort you wanted to run a gambling table and that is against state law and it was not against tribal law but there was no general harm. It was well regulated and well policed and well accounted for. Would you say the tribe would have the right to do that?
George E. Fettinger: We do not equate this case to the gambling situation for a couple of reasons. There is also a federal statute that makes it, I believe, a federal felony to possess a gaming device in Indian country which is not ordinarily considered to be--
John Paul Stevens: Maybe I cannot think of one right away, but some activity that is prohibited by state law, maybe selling liquor on Sunday or after 12 o'clock at night or something like that and the tribe thought, well, they would rather do it differently. Under your theory of Indian tribal sovereignty, would they be permitted to do that?
George E. Fettinger: --Unfortunately, I think this Court has generally said that those items are treated independently. I would suggest to this Court that the jurisdiction of a tribe should be related more to its territory when, in fact, that theory can be reasonably applied. I do not suggest it where you have 28 percent trust land and 72 percent non-trust land that that can be applied. But I would suggest that where you have essentially all of the reservation being trust land that the territory of the tribe when it has an operative government operating under, in our case, the Indian Reorganization Act with ordinances, with a superintendent, with a budget approved by the federal government, with an annual ordinance that is approved by the authorized representative of the Secretary of Interior and carries down to the detail of the weight of the bullet, the area in which you will hunt, the price of--
John Paul Stevens: I am trying to find out really are you relying primarily on a federal preemption theory or an Indian tribal sovereignty theory?
George E. Fettinger: --It is difficult to separate them because the language even of this Court is that you--
John Paul Stevens: But analytically they are quite different--
George E. Fettinger: --will lose against the backdrop of tribal sovereignty. We like the Tenth Circuit opinion, obviously.
John Paul Stevens: --Obviously that is true, but I am still not clear on what you legal theory is.
George E. Fettinger: In answer to your question, we would tend to say we agree with the Tenth Circuit opinion and that is a simple answer to your question.
John Paul Stevens: That is all you have to help me with?
George E. Fettinger: That is not all we have to help you with. We would suggest to you that tribal sovereignty is a basic premise. There are many pitfalls built into the preemption theory, for example, of this Court. How... are you not to permit an Indian tribe to be successful? Preemption implies that the Indian tribe must of necessity go back to the United States government to have them draft a contract on a timber case, to have them go out and supervise the cutting. How can you reconcile that with the economic development plans of Congress in regard to Indian reservations and self-determination?
John Paul Stevens: But one of the questions in a case like this is to what extent can an Indian tribe running a commercial organization like this, attracting business from non-Indians, use its ability to grant exemptions from state laws, for example, sell hunting licenses at cut rate prices. Can it use that as a means of tribal development? Maybe it can, but isn't that part of the question?
George E. Fettinger: Well, one, I would suggest, please, we are not selling hunting licenses at cut rate prices--
John Paul Stevens: Well, what do you licenses cost? What are your licenses?
George E. Fettinger: --Our license packages run as high today... on the record in 1967 were under $2,000 per elk with a package hunt, $800 plus without the package. In today's world, you are talking about substantially more than that.
John Paul Stevens: When you talk about package, do you sell the licenses separately?
George E. Fettinger: Well, we have a package hunt that includes the room, the meals--
John Paul Stevens: Do you sell the licenses separately?
George E. Fettinger: --Yes. We do.
John Paul Stevens: What is the cost of a separate license?
George E. Fettinger: Roughly, on the record, it is approximately $800.
John Paul Stevens: Eight hundred dollars?
George E. Fettinger: That is in 1967. It has gone up from there.
Byron R. White: That is to hunt anything on the reservation?
George E. Fettinger: That is the prime. That is the bull elk.
Byron R. White: But you can hunt anything else, too?
George E. Fettinger: No. Licenses are per species and there are separate seasons and in backing to the question regarding how does that interfere... how does state regulation interfere--
Byron R. White: If you want to come on the reservation, and get one elk, it will cost you $800?
George E. Fettinger: --Yes, sir. Now more, substantially more.
Byron R. White: Just for one day?
George E. Fettinger: Well, the period of time during which you can hunt is not limited to one day.
Byron R. White: I know, but if I want to come on even for one day and get one elk, it is $800?
George E. Fettinger: Yes, sir, and we do not have too much difficulty selling those permits. Now, I assume the state is going to point out that we do not have that difficulty, but that is up to the tribe to manage that. A moment ago the question was asked how does the state regulation interfere with tribal activity, and there are many different ways that they do this. We schedule the hunts over different periods of time to supplement the business at the Inn of the Mountain Gods. We prefer for hunter safety reasons to have fewer hunters on the reservation. We prefer to control the access to the particular area. We hire part time tribal employees for assistance to the conservation officers during the hunt. We prefer to have all of our conservation officers concentrating on one species in one area. That is all good management. We have seven full time conservation officers on 460,000 acres of reservation. That is six tenths of one percent of the area of the State of New Mexico.
Sandra Day O'Connor: Mr. Fettinger, your time is running out, and like Justice Stevens, I am a little concerned about your legal theory more than I am about the facts. What in the preemption area are you looking at specifically to constitute the preemption because it is not as comprehensive a regulatory scheme at the federal level as is the case with timber, for example?
George E. Fettinger: Well, in this particular case, our treaty does contain, and this is all covered in our brief beginning at about page roughly 20 or 22, the treaty that the Mescalero Apaches have provides the wording that we are under the exclusive control of the United States government. The enabling act in the constitution of the State New Mexico contains the conventional disclaimer. We also have Public Law 280 that recites that even in a Public Law 280 state you do not have the right to interfere with the rights of the Indians in regard to the control and licensing of wildlife on that reservation. Our tribal constitution under the Indian Reorganization Act provides specifically for the control of wildlife on the reservation. Tribal Ordinance No. 77-1, that is a general hunting and fishing ordinance on the reservation. We also have the annual licensing ordinance on the reservation which spells out in infinite detail, more detail perhaps than the statutes of the State of New Mexico in regard to hunting going down to the weight of the bullet.
Warren E. Burger: Was this reservation created before New Mexico was a state?
George E. Fettinger: We have a treaty of 1851. We have an executive order of 1873, and we do predate the state, which is 1912 for statehood. The state first started controlling fish and wildlife in 1895, so we well predate the state.
Warren E. Burger: I have the same difficulty that others on the bench have had in discerning your theory. I finally concluded between the lines, at least, you were saying that this reservation, 460,000 acres, is Just as independent for the purposes of this case, just as independent of New Mexico as Arizona is independent of New Mexico.
George E. Fettinger: We would love to have that be the ruling of this Court, of course, sir--
Warren E. Burger: Subject to the Interior Department control.
George E. Fettinger: --Yes, sir. We manage... I think the touchstone is that, yes, we manage the conservation program on the reservation as well as any of the states do. We have several other items incidentally as a touchstone for our preemption, and they are listed in our brief. Thank you.
Warren E. Burger: Mr. Claiborne, would you mind addressing my last question and those of the others on the theory?
Louis F. Claiborne: Mr. Chief Justice, certainly. We approach the case on three different bases. The first as we read the injunction of this Court in the White Mountain Apache case, the test this Court has laid down in judging whether the activity of non-Indians within an Indian reservation is or is not exempted from state law depends on a weighing of the respective interests of the federal government, the state government, and the Indian government. We have engaged in our brief in that weighing here and find that what is conspicuously lacking is any serious claim of state interest. There is no allegation that there is a need for state intervention to preserve the species or any other conservation purpose. There is a concession that the tribal activity and the way in which the program is managed is sound and creates no off-reservation harm. The only interest which the state asserts is one to manage the wildlife of the entire state in a unit, but that interest is one which cannot prevail for if the tribe, as it is plainly free to do, were to close the reservation to non-Indians and manage the resources for its own benefit, clearly state regulation would not be applicable there. We cannot appreciate why that management of the same fish and game on the same lands should be a greater interest to the state merely because the hunting and fishing is done by non-Indians rather than by Indians. Now, so much for our initial approach to the case. We do assert what this Court has labeled the two independent barriers to state jurisdiction within an Indian reservation, they being an infringement on the right of tribal self-government or tribal sovereignty. Here we see, particularly with respect to game management, a native resource, a special tribal claim to assert its jurisdiction within what are tribal lands in its territory, the reservation. That interest here is conspicuous because the tribe itself as a government has determined to exploit its resource, to manage it for conservation purposes, but also for the generation of revenues. It has developed a comprehensive, and the state concedes, a wholly satisfactory scheme, one which involves the tribal government, employs tribal members, and generates important income for governmental tribal purposes. Hence, the claim of any infringement with that scheme is a serious one in this case. We also look to the preemption analysis which this Court has traditionally found to be an independent barrier to state regulation and taxation within a reservation. Here, to be sure, we do not have the pervasive federal scheme that was present in White Mountain, but we do have a very clear congressional indication, both in 1165 in the exemptions of Public Law 280 in the treaty with the Mescalero and elsewhere of an indication by Congress that the management of wildlife within a reservation is a matter to be left to the tribal authority for the most part. And here we have no vacuum. We have the tribe taking up the invitation which Congress has given and developing in a, as I say, satisfactory way a very comprehensive and very pervasive wildlife management scheme which is partly conservationist and partly a business venture.
Warren E. Burger: If it were being mismanaged badly for any reason, lack of direction at the top, what would be the control of the Department of Interior?
Louis F. Claiborne: Mr. Chief Justice, it is important that the Department of Interior yearly, annually, approves each of the ordinances enacted by the tribe and in that way assures itself that the management scheme of the tribe is indeed a sound one. What is more, the BIA and other federal agencies have very importantly collaborated in the beginning of this venture and continue to provide on a daily basis assistance, expertise, and help in overseeing and approving annually the ordinances of the tribe and its program. So there is that assurance in the supervision of the Department of Interior that the tribe, as New Mexico concedes, are managing this venture and this game in a proper way.
Lewis F. Powell, Jr.: Mr. Claiborne, are there any other Indian tribes in New Mexico that are regulated in a comparable way to this particular tribe?
Louis F. Claiborne: Justice Powell, I should know the answer, but I don't. I should point--
Lewis F. Powell, Jr.: What I am leading up to inquire is whether or not the federal government customarily approves the ordinances of tribes around the United States with respect to the taking of game and fish?
Louis F. Claiborne: --Justice Powell, I think it is right to say that the United States or the Department of Interior customarily approves any tribal ordinance which has an effect on non-Indians within that reservation, whether it is hunting or fishing or any other activity. Most tribal constitutions provide that any ordinance that impacts on non-Indians within the reservation must be submitted for approval to the Secretary. So that that is the normal scheme. Now, a tribe which closed its borders to outsiders, its own ordinance if it had one with respect to hunting and fishing by tribal members, might not similarly be subject to--
Lewis F. Powell, Jr.: Does the supervision of the federal government go to the extent of ascertaining whether or not their game and fish laws are enforced by the tribe?
Louis F. Claiborne: --I don't know that that is so, Justice Powell, but I must say that here there is no suggestion--
Lewis F. Powell, Jr.: I understand the facts of this case, but I have the same interest that other Justices have expressed. Your brief states that the ordinances, having been approved by the Secretary, have the force of federal law. If that is so, isn't that a complete answer if you are correct with respect to that? That is preemption 100 percent, isn't it?
Louis F. Claiborne: --Well, and that is the aspect in which this case, though different from White Mountain Apache, involves an equally pervasive if not more pervasive scheme of regulation which has the imprimatur of federal approval and continuing federal monitoring.
William H. Rehnquist: Well, in that case, Mr. Claiborne, it would have been unnecessary for the Court to refer at all in White Mountain Apache to the federal statutory structure if a tribal ordinance which is approved by the Department of the Interior has the force of federal preemptive law. I mean a lot of our discussion of these cases has been quite unnecessary if that is the principle.
Louis F. Claiborne: Justice Rehnquist, in White Mountain Apache so far as I am aware there was no tribal comprehensive scheme. In that instance the regulatory scheme was federal, not tribal, but in other cases as in Fisher and, indeed, as in Mazurie the Court indicated that when a tribal law or ordinance is enacted pursuant to federal authority and with federal approval, it may have the preemptive effect which the federal regulation itself was held to have.
Byron R. White: That may be so, but you would still have to reach the conclusion that state law was entirely preempted, either that the tribe has occupied the field, so to speak... just preemption would not mean anything more than that the state law is preempted to the extent that it is inconsistent with the tribal ordinance. It would not mean that they could not, for example, insist on a license.
Louis F. Claiborne: I invoke the Court's holdings in White Mountain Apache and in Ramah Navajo to the effect that the preemption test with respect to preemption of state law on Indian reservations is a very different one. It is not a matter of preempting only what is inconsistent. It is a rule that state law will be seen to be preempted if the federal authority has either itself or delegated to the tribe sufficient authority. Here the tribe has fully occupied the field, however--
Byron R. White: You still have to reach the conclusion that the field has been sufficiently occupied to exclude the state entirely?
Louis F. Claiborne: --Indeed. That itself--
Byron R. White: Even to the extent of not being able to control non-Indians?
Louis F. Claiborne: --I would submit that there is here plainly no room left for duplicative and conflicting regulation by the State of New Mexico.
Byron R. White: How about non-conflicting regulations?
Louis F. Claiborne: Well, to the extent that it is wholly consistent, it may be--
Byron R. White: How about just a license?
Louis F. Claiborne: --Well, the licences--
Byron R. White: And then with the state license they can go on the reservation any time the Indians want--
Louis F. Claiborne: --The state license is imposing an additional, an important burden in the same way that the tax in White Mountain Apache--
Byron R. White: --It isn't inconsistent with any federal statute or any Indian regulation.
Louis F. Claiborne: --Nor is any tax, as the tax in White Mountain, ever inconsistent. It is simply an additional burden which so disarranges the scheme that it--
Byron R. White: They are not taxing the tribe.
Louis F. Claiborne: --I am sorry, sir?
Byron R. White: They are not taxing the tribe or Indians. They are taxing non-Indians. I mean they are making them buy licenses.
Louis F. Claiborne: Nor was the tax in White Mountain imposed on Indians but on the non-Indian corporation and so in Ramah it was imposed on the construction company and nevertheless was held to be preempted by federal regulation.
Warren E. Burger: Do you have anything further, Mr. Dunigan? You have three minutes remaining.
Thomas L. Dunigan: Mr. Chief Justice, and may it please the Court. With reference to Justice Powell's inquiry, I should point out that there is no federal involvement whatsoever in the enforcement of tribal regulations in the area of hunting and fishing. Moreover, tribal regulations, tribal ordinances themselves even if they are comprehensive cannot by their own terms oust, or by their own force oust state law applicable to non-Indians, and this Court has so held in Washington v. the Confederated Tribes of the Coville Indian Reservation where the Court said, we are not going to adopt the far-reaching notion that an Indian tribe has the authority as the United States would have to preempt state law merely by enacting a legislative ordinance that pertains to the same conduct that state law purports to regulate. If this were true, if a tribe were able to do this, then any Indian ordinance passed would... if a tribe were able to do this simply because the federal government does approve its ordinances, if that alone were enough to give it preemptive effect, then any Indian ordinance of any kind adopted by an Indian tribe applicable to non-Indians at least would be preemptive of any state law that applied to the same situation because as the Solicitor General noted, all Indian ordinances that apply to non-Indians have to be approved by the Secretary of the Interior. If his imprimatur of that regulation is enough to give the Indian ordinance preemptive effect, then we have an open-ended situation that whenever an Indian tribe enacts any ordinance whatsoever state law is preempted. But again, that--
Byron R. White: That isn't consistent with some of our cases, is it?
Thomas L. Dunigan: --No, the cases of this Court would not permit that at all. In fact, the Court has held the opposite. The question is essentially foreclosed. As this Court said, again in the Coville cigarette tax cases, we are not going to the extreme of adopting a rule of law that would allow Indian ordinances to oust state law as the federal government may do if it enacts this--
Warren E. Burger: May I ask you a question-- --Do you not think there is a little difference between the preemption, if that was what you were suggesting, of sales of cigarettes on a reservation, sales to non-Indians and the control and regulation of the wildlife and game? Don't you think there is quite a difference?
Thomas L. Dunigan: --Well, Your Honor, in terms of the question of whether or not a tribe by its actions can preempt state law, there wouldn't be any difference at all because--
Byron R. White: You are selling hunting packages--
Thomas L. Dunigan: --We are selling--
Byron R. White: --instead of packages of cigarettes?
Thomas L. Dunigan: --That is correct. The tribe is selling the privilege of hunting--
Byron R. White: In competition with other people who want to sell hunting packages? There is a little difference between a package of cigarettes and a hunting package. You don't kill off elks with packages of cigarettes. It may not be for people who are running competing tourist establishments. May I ask you a question at the other extreme. Am I correct in understanding that you would not challenge the right of the Indians themselves to hunt without a state license or to hunt in off season. What about an Indian himself hunting in a season outside the... under their own regulations?
Thomas L. Dunigan: --There is absolutely no state restriction applicable to that situation at all. That would be wholly permissible, and we would not exercise jurisdiction to prevent an Indian within his resident reservation from hunting according to the regulations established by the tribe itself.
Thurgood Marshall: Did you say wouldn't or couldn't? Do you think the state could do that?
Thomas L. Dunigan: No, Your Honor, I do not think the state could do that. In fact, there is a state law... even under state law it could not because there is a state law that prevents it, whatever else may prevent it as well. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: We'll hear arguments next in United States against Caceres. Mr. Geller, I think you may proceed whenever you're ready.
Kenneth Steven Geller: Thank you Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit. It presents the question whether a District Court may properly suppress probative and otherwise admissible evidence of a crime merely because the government agency failed to follow internal regulations that imposed duties upon it not required either by the constitution or by statute. We contend that suppression is inappropriate remedy in such circumstances; especially where as in this case, the agency regulation at issue was not intended to grant enforceable rights to individual defendants. The violation of the regulation was isolated and was not committed in bad faith and the defendant has been unable to demonstrate any prejudice as a result of the violation. The facts of this case may be summarized as follows. In January 1975, Agent Robert Yee of the Internal Revenue Service was ordered in respondent's individual and unemployment tax returns for the year 1971. At the conclusion of a meeting between respondent and Agent Yee on January 27, 1975, respondent proposed the so-called personal settlement of his tax difficulties. He offered Agent Yee a $1,000.00 if the agent would reduce his estimated tax liabilities by about one-third. Agent Yee immediately reported this bribe offer to Inspector Hill of the IRS Internal Security Division. At Hill's direction, Agent Yee called respondent on January the 30th and arranged the meeting for the following day at respondent's office. During this meeting, respondent gave agent Yee a partial payment of $500.00 for settling the tax audit as respondent had earlier suggested. Unbeknownst to respondent, this conversation was recorded by Agent Yee by means of a tape recorder concealed on the agent's person. Agent Yee also met with respondent on February the 6th and February the 11th 1975. At the February 6th meeting, respondent offered Agent Yee, an additional $2,000.00 to audit his 1973 and 1974 individual income tax returns to respondent's satisfaction. And on February 11th, respondent gave Agent Yee $500.00 as the second installment for the favorable termination of the 1971 audit. The February 6th and February 11th meetings were also secretly recorded by Agent Yee. The respondent was subsequently indicted on three counts of bribery prior to the second trial on these charges. He moved to suppress the three tape recordings on the ground that they have not been properly authorized under the applicable IRS internal regulations governing consensual monitoring of face-to-face conversations between agents and taxpayers. Those regulations require that except in exigent circumstances advanced approval for such monitoring, must be obtained by the Director of the IRS Internal Security Division from appropriate officials in the Department of Justice. The IRS man --
Warren E. Burger: Is this rendition applied to other types of monitoring or?
Kenneth Steven Geller: There's a -- the regulation also applies to telephone monitoring but there are there are different authorization requirements there and they're not at issue in this case. The approval of the Department of Justice is not required for telephone, consensual telephone monitoring, only for consensual face-to-face monitoring of conversations.
Warren E. Burger: Is there any history that explains the distinction between the two, the reasons for it?
Kenneth Steven Geller: I think that the --
Warren E. Burger: Is it regarded as more offensive to have a microphone under your necktie than you'll tap the wires?
Kenneth Steven Geller: Well, the sparse history that's available to explain the reasons for the adoption of these regulations does suggest, yes, that the Internal Revenue Service and the Attorney General thought it was marginally more intrusive of possible privacy rights to have face-to-face conversations recorded than telephone conversations. The theory being that conversations over telephone are going through wires, through offices, and circuits and there's just less reasonable of an expectation that they're not being overheard. Of course, consensual monitoring either by telephone or by face-to-face regulations as I'll get to face-to-face conversations doesn't implicate the either Fourth Amendment or any statute. And the IRS manual also provides that when exigent circumstances are present, emergency authorization for consensual monitoring may be given by the Director of the IRS Internal Security Division acting alone. Now, the facts in this case, show that on either January the 30th or January the 31st --
Warren E. Burger: Who is able to monitor and make a judgment of the exigent circumstances?
Kenneth Steven Geller: It's a judgment --
Warren E. Burger: If IRS says this presents exigent circumstances, can anyone review that in the --
Kenneth Steven Geller: I think the exigent circumstances that the regulations refer to are merely matter of time that's involved before the --
Warren E. Burger: But suppose the IRS makes that determination and the material is recorded then you get a case involving just the way this one goes. Is the soundness and correctness of the determination if there were in fact exigent circumstances opened?
Kenneth Steven Geller: Well, it's our position that the definition and interpretation of an internal regulation promulgated by an agency should be for that agency and that agency alone. Now the lower courts in this case found that the emergency provisions of the IRS Manual were violated. While we disagree with that conclusion, we haven't challenged it in this Court. And this Court, this case reaches this Court on the assumption that the regulations were in fact violated. The question is merely what the remedy should be. Now, as I was saying the facts in this case show that after Agent Yee had arranged the January 31st meeting with respondent, but before that meeting took place, Inspector Hill applied for authorization to monitor the conversations between respondent and Agent Yee. The request was transmitted to the IRS National Office here in Washington on January 31st but other county was not forwarded to the Justice Department until February the 7th. As a result of this delay, the Director of the IRS Internal Security Division acting pursuant to the exigent circumstances provision of the IRS Manual gave emergency approval to record the January 31st and February 6th conversations between respondent and Agent Yee.
William H. Rehnquist: Mr. Geller, let me go back a moment to follow up my question that Chief Justice asked you a moment ago. Supposing that in a lower court case a statutory issue and a constitutional issue are both decided against the Government. The Government decides to seek certiorari but seeks certiorari only on the constitutional issue. Do you think that would be a proper attack for the (Inaudible) Office to take?
Kenneth Steven Geller: Well, I hesitate to answer that question. In the abstract, Mr. Justice Rehnquist, I think that properly both that the statutory issue should be resolved before the constitutional one.
William H. Rehnquist: But you don't feel the same problem with respect to whether or not in this particular case, the agency regulation was violated and the more general question of whether or not what the remedy should be conceding as violated.
Kenneth Steven Geller: We have not challenged in this Court that the regulation was violated. I'm not aware what standards the Court would bring to resolve any question like that if the agency itself says that the regulation hasn't violated but that's part and parcel of the larger argument that we make here today that an agency regulation, the violation of a regulation standing alone does not give anyone any legal rights that are enforceable to court. It's our position which I hope to elaborate on later the argument. But only if the defendant is worse off by the promulgation and violation of an agency regulation then he would be if the agency had not promulgated the regulation at all, might it be appropriate for the court in construing the due process clause to grant some form of relief. Now the Justice Department eventually approved the IRS consensual monitoring request on February the 10th and therefore the recording of the February 11th meeting was fully authorized in advance. In full compliance with the IRS Manual and it's not an issue here. Based on this evidence the District Court granted respondent's motion to suppress the recordings of the January 31st and February 6th meetings, the court found that no true exigency existed and that IRS agent said therefore violated the procedures in the IRS Manual by not obtaining approval from the Department of Justice. The Government appealed the suppression ruling but the Court of Appeals affirmed. I think it's important to begin on discussion of this case by asking a critical question that Court of Appeals never attempted to answer and that is, what is the source of the District Court's power to suppress the highly probative tape recordings of respondent's conversations with Agent Yee merely because of the violation of an internal government regulation? First, there are several -- few answers to these questions seem reasonably clear. First, the power can't be found in the regulation itself. The IRS Manual doesn't contain an exclusionary rule and indeed it specifically provides for the wholly separate remedy of disciplinary action in appropriate cases against IRS agents who violate the manual. It's also clear that the authority to suppress can't be found in the Fourth Amendment or in any federal statute. This Court has said on a number of vacations that consensual recording of face-to-face conversations does not constitute a search or seizure within the meaning of the Fourth Amendment. And Title III also specifically excludes consensual recordings by law enforcement officers from its provisions. Finally, the Court of Appeals didn't purport to be ordering the suppression of evidence here as an exercise of its supervisory powers. And hence, whatever the legitimacy of the court ever using its supervisory powers to exclude probative evidence in a criminal case because of an agency's violation of its own rules we have substantial data --
Speaker: What if the regulation had itself said that if it's violated there shall be -- the evidence shall be excluded?
Kenneth Steven Geller: In that case we still think it would be up to the agency itself to decide whether or not to seek enforcement of hat provision as in fact it does in the Petite -- as the Department of Justice does in Petite policy cases.
Speaker: Yes.
Kenneth Steven Geller: Or whether or not to in effect pro tanto repeal that provision we think the courts cannot step unless unconstitutional or statutory right of the defendant has been violated.
William H. Rehnquist: When you say supervisory powers of the court, do you mean over the district court?
Kenneth Steven Geller: I gather, the --
William H. Rehnquist: Certainly, as the court's views as a supervisory power of an agency created by Congress?
Kenneth Steven Geller: Well, I see the District Court would have supervisory power presumably the argument would go would have supervisory powers over an agency and the Court of Appeals would determine whether the District Court has --
William H. Rehnquist: What if the District Court get any supervisory power unspecified by Congress over an agency?
Kenneth Steven Geller: Justice Rehnquist, I don't want to be put in the position of defending supervisory powers of courts over executive branch agencies because the position of the --
William H. Rehnquist: That isn't good for you.
Kenneth Steven Geller: Well, we took the position in the Jacobs case last year that district courts don't have any broad undefined supervisory powers and that's still the position of the Justice Department.
William H. Rehnquist: Well, but even the defendant's in the Jacobs case were just arguing that supervisory powers in the District Court or Court of Appeals extends to what shall be admitted as evidence in the District Court, might they?
Kenneth Steven Geller: That's correct. Although in the Jacobs' case, there was a question of how United States Attorney or Strike Force Attorney should act in a particular situation. Well, that leaves us with the claim that respondent urges most strongly and that the Court of Appeals appears to have accepted which is that the power to exclude the tape recordings flows from the due process clause of the Fifth Amendment. As we understand respondent's argument, he says that as a matter of constitutional due process, every agency must promulgate internal regulations restricting the unfettered discretion of its employees. Every agent, every employee must abide by the regulations of his agency. In every violation of an internal regulation constitutes a deprivation of due process. Key assertion is obviously the last one that is that any time an agency fails to comply with one of its mandatory guidelines. The person with whom the agency is dealing has been denied due process. The respondent relies for this assertion solely upon cases such as Accardi against Shaughnessy and Service against Dulles. But as the Court pointed out last term in Board of Curators against Horowitz, that line of cases merely announces a rule of federal administrative law not a principle of constitutional law applicable in non-adjudicated context. And these decisions certainly didn't equate every violation of an agency's regulation whether violation of the Fifth Amendment. Indeed, Sullivan against the United States in 348 U.S. was decided only a few months after Accardi. Yet the Court failed to mention Accardi in denying the defendant's motion to dismiss an indictment in that case because of the violation of an internal agency procedure. I should make clear that we certainly don't dispute that there may be circumstances where the Government's failure to follow procedures outlined in its internal regulations might operate to treat a particular defendant unfairly. It might cause the defendant demonstrable harm. And that conceivably may also be circumstances in which the magnitude of the unfairness by the Government and the harm to the defendant might be sufficiently substantial to constitute a due process violation that would entitle a defendant to judicial relief. One situation might, for example might be if a defendant reasonably relied on the existence of an internal government regulation and was then prejudiced by the Government's unjustified refusal to follow that regulation. Another might be if the government agent decided not to follow his agency's regulations in a particular case because of some invidious reasons such as a defendant's race or religion. But in our view, if there are circumstances such as this in which the defendant would be entitled to judicial relief. The relief would be based on the due process violation and not on the violation of the internal agency regulation. Due process, we believe, cannot be violated by a mere agency violation of its own rules. Defendant is no worse off from a violation of an internal regulation standing alone than it would be if the agency had never adopted the internal regulation in the first place. Hence, the existence of and failure to follow an internal agency regulation in our view is that most only of evidentiary significance. But one factor among many that must be considered in weighing the defendant's due process claim. Now, we've identified in our brief a number of the factors that we believe must be looked at to determine whether a particular defendant has been deprived of due process. The essential question of course is whether the Government's conduct is falling below a standard of essential fairness that the Court should not tolerate it. It is as the Court defined due process in Russell case whether the activity of government law enforcement agents was repugnant to the American criminal justice system so outrageous that the Government should be barred from invoking traditional processes to obtain a conviction. We think that the facts of this case demonstrate quite clearly that defendant was not treated unfairly in any way by Inspector Hill's failure to comply fully with the authorization provisions of the IRS Manual. Indeed, respondent really makes no effort in his brief to dispute that contention. For one thing, respondent's conduct could not have been affected in anyway by Inspector Hill's non-compliance with the IRS regulations. Respondent didn't know that his conversations with Agent Hill were being -- Agent Yee's, excuse me, were being recorded.
John Paul Stevens: Mr. Geller, could I interrupt just two thoughts? One, you say it couldn't have been heard. Maybe he would have turned down if he followed the procedure and there wouldn't have been any monitoring, isn't that a possibility?
Kenneth Steven Geller: It's not a possibility in this case and I hope to get to in just a moment. But even if it were turned down, our position would still be that the defendant is no worse off than if the regulations hadn't been promulgated in the first place.
John Paul Stevens: Well then in that point before you get through. You make some comments in Vitarelli against Seaton where the man was discharged he would have been no worse off if they didn't have all these procedures just to get him terminated.
Kenneth Steven Geller: Yes. Well, I think that Vitarelli against Seaton just like Accardi against Shaughnessy and Service against Dulles, that line of cases. We don't attack the decision in those lines of cases. In this case, those are adjudicated cases and I think that the courts were announcing rules of administrative law and not due process. I think what we're dealing with here in this type of case in the Leahey, Heffner, Sourapas lines of cases are judicial scrutiny of internal government regulations in connection with prosecute or law enforcement decision-making. And I thinking that the one, the due process standard that the courts announced in overseeing law enforcement techniques is much, much lower standard. The standard I articulated a moment ago whether the Government's conduct is so outrageous that the court should not allow judicial processes to be in foc -- to obtain a conviction. We -- there are many facets obviously to the question of, must agencies follow their own rules and we're only concerned here with the small facet of the question that involves criminal investigative of prosecute of policies and whether either the dismissal of criminal charges or the suppression of evidence in the criminal case is an appropriate remedy for those types of violations.
Warren E. Burger: And Vitarelli was dismissal from government service was it not?
Kenneth Steven Geller: Yes, yes it was. Now, respondent as I was saying didn't know that his conversations with Agent Yee were being recorded and he certainly didn't know that they were being recorded without Justice Department approval. In his incriminating statements to Agent Yee in the January 31st and the February 6th meetings wouldn't have varied in any respect if Inspector Hill have applied for and obtained monitoring authority pursuant to the routine rather than the emergency provisions of the IRS Manual as the District Court insisted he should have done. And by the same token, in connection with the question asked by Mr. Justice Stevens, there was no prejudice to respondent because if the IRS Manual had been fully complied with, it's absolutely no question on this record that the Department of Justice would have authorize Agent Yee to record his conversations with respondent. This is not a case in which the law enforcement technique of consensual monitoring was only of marginal utility for obvious reasons, instances of attempted bribery by IRS agents. It has always been considered to be among the most justified uses of consensual recording equipment under the IRS regulations. Indeed, as I mentioned earlier, the Assistant Attorney General actually approved the monitoring of the February 11th meeting in advance with the knowledge that on two prior occasions earlier that week, the IRS had engaged in consensual monitoring of respondent's conversations pursuant to the emergency exception to the IRS Manual. In fact there had been an incident in March of 1974 in which respondent also made a statement to Agent Yee that could have been construed as a bribe offer and at that time, Agent Yee also reported this to the Internal Security Division which had sought approval from the Department of Justice to monitor face-to-face conversations between Agent Yee and back in March of 1974, the Justice Department had also grant an approval and had in fact, I think, extended that approval for five consecutive months so there's no question that this is a case in which the Justice Department would have granted approval pursuant to the IRS Manual and the Attorney General's Memorandum. We therefore have a situation here in which the IRS has failed to comply precisely with its Internal Regulations, didn't treat the defendant unfairly in any way, didn't --
John Paul Stevens: Mr. Geller, on that point about certainty of approval, supposing we had a case in which it somewhat uncertain. Whether they would have approved it, would you make a different argument?
Kenneth Steven Geller: I'd make the same argument although if the argument -- if my same argument would be rejected then it would have to, I soon reach the question of prejudice to the defendant. We don't think that you have to even reach the question of --
John Paul Stevens: Well, there would always be prejudice I suppose if they got some recordings that they would not otherwise have gotten and they were material to the material level.
Kenneth Steven Geller: Well, I think don't think that's what we mean by prejudice in the due process since because --
John Paul Stevens: So you mean there's no unfairness, is it?
Kenneth Steven Geller: There's no unfairness because as I've said earlier, we think the inquiry is the defendant any worse off than he would have been if the regulations had not been promulgated in the first place.
John Paul Stevens: It's your position -- I just want to get it straight in my mind. Your position really is that that even if he would have been worse off, the violation of department regulation of this kind shouldn't justify the application in exclusionary rule?
Kenneth Steven Geller: That's correct. We don't think there's been a due process.
John Paul Stevens: I think that's your broad position.
Kenneth Steven Geller: That is my broad --
John Paul Stevens: (Voice Overlap) decide each case on whether we think they might or might not have gotten approval otherwise, it's kind of -- kind of a tough case.
Kenneth Steven Geller: I don't think the Court need to reach that in this case because I think our broader proposition is correct. We're dealing here now with a regulation. It doesn't provide any remedy for an aggrieved defendant and indeed as we show in our opening and reply briefs wasn't even primarily intended for his benefit. Finally, there's no finding by either court below of bad faith on the part of any of the IRS agents. We submit that in these circumstances, there's no conceivable basis on which to find that the Government's conduct treated respondent unfairly much less deprived him of due process. And that accordingly, the District Court was powerless to order the suppression of the tape recordings. I'd like to touch briefly on one more point before my time expires. The conclusion of some lower courts that the violation of an agency regulation alone should entitle a defendant to the suppression of evidence with the dismissal of criminal charges is premised to a large extent on the notion that regardless of the absence of harm to the particular defendant. Relief must be ordered in order to give agency an incentive to follow their agency's rules. I think that this notion is misguided for the reasons that were stated by Judge Friendly in the Leonard case in 524 F.2d. Executive branch agencies has substantial incentives wholly apart from any penalties imposed by the courts to ensure their own procedures are substantially observed. Executive branch agencies, presumably adopted the particular procedure which were not, which was not imposed by the constitution or by statute because it benefited the agency in some substantial significant way. The same factors that cause the agency to adopt the internal procedures should compel the agency and see that they're obeyed. Even if suppression would have some marginal deterrent effect however would be far outweighed in our view by the harmful consequences that would inevitably be produced by the exclusion of the evidence. Inherent in the voluntary adoption by the executive branch of internal guidelines is the expectation that the interpretation and enforcement of those guidelines will be left to the executive branch. If judicial sanctions are going to be imposed solely for violations of voluntarily adopted internal guidelines, the wisdom of adopting those practices in the first place would obviously have to be reexamined. Therefore, suppression would really punish society twice. First, the probative evidence of criminal activity would be excluded and criminal prosecutions would be impeded. And secondly, the Government would be dissuaded from adopting a great many beneficial rules and practices that go beyond what the Constitution or statute may require. Thus, at the time when the Court of Appeals candidly conceded there has been a growing disenchantment with the exclusionary rule we submit that it would be exceedingly unwise to extend the remedy of suppression to the situation such as this one whether constitution and federal statutes were fully complied with and there was at most an inconsequential violation of internal agency regulation. Thank you.
Warren E. Burger: Are any of the cases cited relied on why the respondent to your criminal prosecutions?
Kenneth Steven Geller: The only case that there's a criminal prosecution was the Yellin case which was a prosecution for criminal contempt of Congress. The Yellin case is in many ways a peculiar case the Court didn't really explain what the source of the power was. It was exercising in reversing that conviction although there were two threads that seem to run through the argument. One is that there might have been some reliance interest on the part of Mr. Yellin and we agree that if there has in fact been reliance interest created by a regulation there may well be a due process violation if that regulation is violated. And secondly, there was some notion in Yellin that it's not fair to prosecute someone for contempt of Congress if they are to comply with the rules of Congress when Congress itself hasn't followed its own rules. But the Yellin case is the only case I'm aware of on which respondent relies.
Warren E. Burger: But if I recall the opinion in the Vitarelli case correctly, was there not some announces by the Court of the use to contention which was referred to that the employees in the governments have the reasonable expectation that the procedures will be followed because the -- know what the procedures are?
Kenneth Steven Geller: That that's correct.
Warren E. Burger: Just as they would with reference to a civil service statute?
Kenneth Steven Geller: Yes, there was -- there was -- the Court did refer to that of course just repeat Vitarelli like Service against Dulles and Accardi were admitted adjudicative cases, administrative law cases and of course even in that context, there has to be some finding that a particular regular was for the benefit of the person who seeks to challenged its violation and I think that's what the Court was referring to in Vitarelli.
Warren E. Burger: And in Accardi also?
Kenneth Steven Geller: In Accardi and in Service against Dulles.
Warren E. Burger: That this internal procedures for the administrative hearings were made for the benefit of that category or class of people.
Kenneth Steven Geller: Precisely and of course in those cases, all that happen, all that the Court ordered was a remand for a new hearing at which these procedures would be complied with here of course the remedy ordered by the District Court and affirmed by the Court of Appeals.
John Paul Stevens: Well no, that's not right in Vitarelli. He ordered -- the court ordered reinstatement in --
Kenneth Steven Geller: But I believe the court also mentioned that this would not preclude the Government from immediately discharging Vitarelli and the proper procedures.
John Paul Stevens: The procedures are totally unnecessary for the employee or just when they charge him with the particular violation, they may come in a sympathy and the like.
Kenneth Steven Geller: That's correct. Thank you.
Warren E. Burger: Mr. Brosnahan.
James J. Brosnahan: Mr. Chief Justice and --
Warren E. Burger: You may elevate that lectern if you'd like.
James J. Brosnahan: No.
Warren E. Burger: I appreciate the (Inaudible) on the side.
James J. Brosnahan: Looks like I might make coffee with it, I'm not sure.
Speaker: We do it frequently.
James J. Brosnahan: Mr. Chief Justice and may it please the Court. We see the case before you differently and I'd like to state what we think the issue is. In the case where there is a mandatory published regulation by agencies of the federal government which has been approved on a nationwide basis for the protection of fundamental interest of citizens. Where that regulation is violated, where that violation is delivered, and where the evidence obtained after the violation is sought to be introduced in a federal district court in a criminal case. Should that evidence be suppressed because as we alleged it will deter a federal agents from committing future violation. There's been a lot of briefing in the case and I thought I would start by stating what we think the issue is and then saying at the outset that we believe that we can support each element of that standard in this particular case.
Warren E. Burger: Do you suggest Mr. Brosnahan that your client here conducted himself in reliance on the existence of this regulation in the sense for example that Vitarelli did in the -- in his case?
James J. Brosnahan: Mr. Chief Justice, only in this sense that as a citizen, one of many, one of millions and I don't mean to say to the Court to those are mental state in the doctor's mind that he focused on as clearly he didn't but there are many other cases where clearly it was true too. But as a general sense of a citizen from 1965, he had the right to believe that no one would ever electronically record or transmit what he was saying even to a federal agent unless the Attorney General of the United States or somebody designated by the Attorney General had approved it before.
Warren E. Burger: Then you're saying that he had a legitimate or reasonable expectation of having a private conversation when he offered this bribe?
James J. Brosnahan: We say, first there's been no conviction of course. There was a hang jury and no jury has ever found Dr. Caceres guilty and he's presumed innocent. But aside from that, we believe that from at least 1967, every one in the country including the Attorney General and the Commission of Internal Revenue Service and other high officials responsible for the passage of this regulation had the right to assume that there would be no such electronic surveillance. And Dr. Caceres is one of many that would be in that state of mind. I also would say at the outset that it seems to me troublesome that the Gove --
Thurgood Marshall: What difference does it make to the point involved as to whether the approval of the Attorney General would have or not?
James J. Brosnahan: We will --
Thurgood Marshall: How would he know that?
James J. Brosnahan: Well, he would not know that.
Thurgood Marshall: So what difference does it make to him whether it was or was not?
James J. Brosnahan: Precisely because the type of instrument being used is secretive. The fact that he would never know it is a greater reason for insisting on the projection of prior approval.
Thurgood Marshall: But he couldn't stop it? The only thing you insisted on is that he should have gotten approval with the Attorney General.
James J. Brosnahan: Well, --
Thurgood Marshall: Isn't' that pure show?
James J. Brosnahan: I think -- I think what I was about to say Justice Marshall is this. The Government argues in this case that to succeed the defendant must show personal reliance and harm. That to me is an inconsistent way to go out --
Thurgood Marshall: But that's not my question.
James J. Brosnahan: No. Well, I was going to say that the regulatory scheme and I think this is responsive to your question. The regulatory scheme is set up in such a way that surreptitious monitoring which no one knows is going on except the agents who are doing it, by its very nature, will not occur unless the Attorney General or someone designated has previously approved it. And Dr. Caceres or myself or any person have the right to go through the country and talk to a federal agent and believe that there would be no monitoring unless that approval is obtained.
Thurgood Marshall: And if it would not obtain, it would not be used? We have assumed that?
James J. Brosnahan: We know that.
Thurgood Marshall: Well how do you know that?
James J. Brosnahan: Because --
Thurgood Marshall: It was used in this case?
James J. Brosnahan: Well, because if the approval is not obtained --
Thurgood Marshall: Well is it true it as from now on people can't rely?
James J. Brosnahan: Well, I would say based on the audit that was done in 1974 and based on what's shown in this case and particularly if this Court would hold if its alright to used it in a criminal case that the public's perception whether that regulation is worth protection or not would be that if you can't rely on it and you are not going to know when you're --
Thurgood Marshall: I don't see how? My one point is --
James J. Brosnahan: Yes.
Thurgood Marshall: I don't see what benefit or wrong it is to the party involved as to whether or not the Attorney General had approved the bugging?
James J. Brosnahan: I would say for this reason.
Thurgood Marshall: That's what I'm listening to.
James J. Brosnahan: Alright. I would say for this reason. By the very nature that it's the Attorney General, the regulatory scheme when it was passed imagined that the high official would exercise very careful discussion.
Thurgood Marshall: Did it say the Attorney General himself?
James J. Brosnahan: Or his designee and that was the --
Thurgood Marshall: I thought this is what it say.
James J. Brosnahan: I've always used those terms together because that's what it said from the beginning and it was for a long time the Deputy Attorney General is only the number two person in the department that could do it if he Attorney General didn't do it. We argue from that in the legislative history and I defer in my point of view fro my colleague Mr. Geller on this is not sparse. The record that we have shown shows that the President of the United States, the Attorney General of the United States and the Commission of Internal Revenue all said that from 1965 on there would be a high official that would review this kind of electronic surveillance. And that was because it would be approved in limited cases and Attorney General Levi and I think this is helpful, in 1960 and 1975, I went to Congress, delivered the statement which is in our appendix dealing primarily with foreign problems. But in that the Attorney General said and surely believed it that these regulations were such that great time was taken by his office to review it to ensure that there would be no violation of private rights that it was always done in advance and that the Congress couldn't rely on that.
Thurgood Marshall: But he didn't do that in 1965?
James J. Brosnahan: 1975, I misspoke. 1975.
Thurgood Marshall: It was started in 1965.
James J. Brosnahan: In 1965 it was started and when it was started it was traumatic and I must say that I disagree with the Government's view of this. It was discussed at the presidential level.
Thurgood Marshall: It wasn't exactly discussed it was handed down by the President.
James J. Brosnahan: It was handed down and in the White case in the appendix there is a quotation from President Johnson in which he said that he would see to it, he asked if the agencies look at this because it involved very important rights.
John Paul Stevens: But none of those statements said anything about asking for court help and enforcing the regulation or in disciplining people who violated it.
James J. Brosnahan: Actually, the statement by Commissioner Cohen attached to the Government's reply brief did refer at least in passing to suppression of evidence.
John Paul Stevens: The Attorney General Levi statement did not or did it?
James J. Brosnahan: He did not address the question of suppression.
John Paul Stevens: Of remedy --
James J. Brosnahan: That we say is for this Court and for the Court's to deal with.
Warren E. Burger: We'll resume at that point at 10 o'clock in the morning.
James J. Brosnahan: Thank you.