Earl Warren: Number 39, Paul Williams and Lorena Williams, Petitioners, versus Hugh Lee, Respondent. Mr. Littell.
Norman M. Littell: Mr. Chief Justice, Associate Justices. This case is a very simple one on the facts that has very complex, indeed very deep current certification. Actually, it is an action for debt, originates an action for debt by a trader, Hugh Lee on the Lee Trading Post Ganado, Arizona, in the middle of the Navajo Reservation. And the defendants are two Navajos, husband and wife whose flock of sheep was attached for the purpose of collecting a debt of $361.22. After some delay in holding the sheep at the plaintiff's trading post where they were carried for and at a per diem charge, they were finally sold to sheriff's sale for a total sum including $2 in cash, but the plaintiff, for some reason, put up $272, the total cost of maintaining the sheep during their incarceration, shall we say, was $246.72. So that had the plaintiff not paid in cash in his anxiety over this case the sum of $280, there would have been a net balance to credit on this debt of $27.28 and had the -- I cannot refrain from commenting in passing that had the jurisdiction of the Court in respect to this particular point then maintained, he could then have attached another flock of sheep and repeated the process calling up on the debt of this proof presumably at the rate of $27 or $30 in attachment. Now, actually, with the payment of cash, the final judgment was $82.22 which is still standing against these -- these defendants and therefore other property can be -- be attached for reasons explained in the course of my discussion. The Supreme Court of Arizona held that that attachment was invalid. In fact, in the Superior Court proceedings below beginning there, the Superior Court judge, when the defendants challenged the jurisdiction of the Court proceeding this matter, held that having obtained the citizenship, they were subject to the state jurisdiction, I need not to spell out Superior Court's ruling anymore than that perhaps under the issues in the Supreme Court, where, on appeal, the Supreme Court of Arizona sustained these views. However, it reversed the District Court -- the -- the Superior Court on the -- in respect to the attachment on the grounds and for the reason that a specific regulation of the Bureau of -- of the Department of Interior, Bureau of Indian Affairs forbad the sale of livestock without a -- an expressed permit by the superintendent. In this area, the federal regulations, the Supreme Court of Arizona held did in fact preempted appeal. And therefore, the attachment was invalidated.
Speaker: There was personal service (Inaudible)
Norman M. Littell: Yes.
Speaker: (Inaudible)
Norman M. Littell: Personal service in the Reservation, Your Honor, yes.
Charles E. Whittaker: (Inaudible)
Norman M. Littell: Yes, indeed. No jurisdiction whatsoever over these petitioners, none whatever.
Charles E. Whittaker: Is that (Inaudible) the sheriff did not have territorial authority to make valid services in the Reservation?
Norman M. Littell: That is only the more trivial of the reasons, Your Honor, and I will come to that point later in my argument, but the State of Arizona has neither civil nor criminal jurisdiction over Indians on the Reservation at all.
Charles E. Whittaker: May an Indian institute his suit in a state court in Arizona?
Norman M. Littell: He may.
Charles E. Whittaker: Is this (Inaudible) is not to do so?
Norman M. Littell: No.
Charles E. Whittaker: Did they not file a counterclaim in the proceeding in Arizona court?
Norman M. Littell: Everything done was without prejudice to the basic contention of the state court lack of jurisdiction, Your Honor.
Charles E. Whittaker: How can one file a counterclaim seeking affirmative action (Inaudible) the Court without permitting to the Court?
Norman M. Littell: The counterclaim was dismissed, Your Honor.
Charles E. Whittaker: I know, but that was after he had caused to be (Inaudible) whatever the effect of filing a counterclaim was, was it not?
Norman M. Littell: Well, Your Honor, we can only contend that the whole proceeding was totally lacking in basic jurisdiction and not the defendants themselves cannot convey jurisdictions where they -- where -- where the basic proceeding is lacking in jurisdiction.
Charles E. Whittaker: I can understand along (Inaudible) on jurisdiction of person, I (Inaudible)
Norman M. Littell: To narrow the issues to those that are before this Court, the Supreme Court of Arizona, as I have said briefly, did say that the federal regulation respect to say livestock had preempted that field and invalidated the attachment. On the broader ground that a regulation controlling the credits -- controlling the transaction between traders and Indians on the Reservation specifically provided that if credit is extended, it should be at the traders' own risk. In respect to the contention of counsel for the defendants below that there was no jurisdiction in the Court by reason to construction of this regulation, one contention. The other contention that there was a basic contention, there is no jurisdiction anyway over Indians on a transaction arising in the Navajo Reservation. But on this narrower ground, that the credit provisions of the traders' regulations left the traders entirely at their own risk and made the transaction unenforceable. The Court said that the only thing before it was the question of jurisdiction and that the effect of this regulation went to the merits. It could be plead on the merits. It did not go to the jurisdiction of the Court. The court below had jurisdiction in the opinion of the Supreme Court, and this regulation could be plead if necessary on the merits but did not go to the jurisdiction. The Court reviews the law of the situation as it considered to be, recognizes that there is preemption of the -- of regulations, but where Congress has not specifically prohibited and the State has the jurisdictions. They quote some cases to this effect which are to some extent not correctly represented but in any event, on certiorari to these courts, out of the assignment of errors or points on appeal below, there emerged here two basic points which ought to be considered. First, our main contention and the one consonant with a long line of decisions from Worcester against -- from the Worcester case in -- against Georgia in -- in 5 Peters down through many, many years that the Court -- that no jurisdiction of the persons but had by the state court because they are Navajo -- Navajo Indians residing on the Navajo Reservation and because the State does not, broadly speaking, have civil or criminal jurisdiction.
Felix Frankfurter: Your -- the immunity which you urged is the immunity of the person and not of the enclave of the -- of the Navajo Reservation, is that right? They both --
Norman M. Littell: Your Honor, I agree there's no immunity of the enclave for certain functions of the State arising from its jurisdiction of that territory.
Felix Frankfurter: Well, I meant immunity on the enclave as to Navajo Indian.
Norman M. Littell: As to Navajo Indians, absolutely.
Felix Frankfurter: But -- but your claim is broader than -- your claim is the immunity of the Navajos on or off the Reservation.
Norman M. Littell: Not of the Reservation.
Felix Frankfurter: Not off?
Norman M. Littell: Not off. No.
Felix Frankfurter: So it's a sort of a territorial immunity of the Navajos within the Reservation?
Norman M. Littell: That's right.
Felix Frankfurter: All right.
Norman M. Littell: The second point is, and here, I must take a moment of explanation because in --
Felix Frankfurter: Even if the Navajo Indian was off the Reservation or off the town or -- so on then he's -- then he maybe personally served?
Norman M. Littell: He is personally served, not for a transaction on this Reservation, not for this transaction.
Felix Frankfurter: Maybe -- maybe personally served, that isn't this case now. Maybe personally served off the Reservation on a transaction that's within the Reservation, localized within the Reservation.
Norman M. Littell: No, Your Honor. In my -- in my view, he --
Felix Frankfurter: So therefore, it isn't merely the geography but it's also the immunity of the Indians with reference to transactions pertaining to the Reservation.
Norman M. Littell: On this Reservation, that's right.
Charles E. Whittaker: Well, then, may I ask you this? Suppose -- and now, it's on (Inaudible) notes within the contract of the Reservation to this Navajo (Inaudible) wouldn't mean the Navajo Indians thereafter has brought existing state courts of Arizona (Inaudible)
Norman M. Littell: He could. Your cases have so held.
Charles E. Whittaker: Well, I don't see why these plaintiffs when they filed a counterclaim in the state court did not thereby institute a suit invoking the jurisdiction of the state court and submit their (Inaudible) lawfully jurisdiction?
Norman M. Littell: Well, I think the only answer to Your -- to Your Honor's point on the counterclaim is the fact that the state court did not treat it as a waiver of jurisdiction. They accepted it as -- as subject to the stipulation throughout that -- that the Court was about jurisdiction.
Charles E. Whittaker: And as to your point that the counterclaim was subsequently dismissed (Inaudible) as a matter of law that a litigant may step in and out of the Court at will?
Norman M. Littell: In this instance, Your Honor, I think the answer is yes.
Charles E. Whittaker: (Inaudible)
Norman M. Littell: Well, I think there are many surprising doctrines in -- in the question of -- of jurisdiction over Indian affairs to the average common law lawyer. There's no question about it. I found some surprising ones myself when I took on the responsibility of general counsel of the Navajo tribe as one does when you read admiralty. There's a slippered branch of the law.
William J. Brennan, Jr.: Mr. Littell, may I ask if there were a transaction off the Reservation, might there be service upon the Indian on the Reservation in respect of that transaction?
Norman M. Littell: Your Honor, there are two schools of thought in that case quite frankly. That's a $64 question in this particular issue and there are two schools of thought. One of them is, he may not under any circumstances.
William J. Brennan, Jr.: Merely because he's on the Reservation.
Norman M. Littell: Yes. The other is that he -- he may that in going off the Reservation, he has submitted himself to the jurisdiction off the Reservation and that he could be sued but that is not this case.
William J. Brennan, Jr.: Now, here, we have a transaction on the Reservation and the Indian on the Reservation.
Norman M. Littell: In toto. And the process, in our view, illegally served upon the Reservation.
William O. Douglas: Did you say it's the same as an Indian (Inaudible)
Norman M. Littell: That is criminal jurisdiction.
William O. Douglas: I understand, but if --
Norman M. Littell: And the case the same Court that we are reviewing here within three weeks of this decision held precisely what Your Honor has in mind in the Denetclaw case that there is no criminal jurisdiction on a highway in the -- in the Reservation expressing great regrets if there were not -- there was not.
Charles E. Whittaker: But why? That's because this is not state territory.
Norman M. Littell: It's not state territory.
Charles E. Whittaker: And the sheriff therefore admiral jurisdiction to make it (Inaudible) process beyond the state territory and in beyond that.
Norman M. Littell: That's right.
Charles E. Whittaker: Well it is either -- but that is not to say that that individual interest could not come into a state court and invoke its jurisdiction in (Inaudible) isn't it?
Norman M. Littell: He can. Your -- this Court has so held that the -- even where this Indian lacks citizenship that he is nevertheless a person and can sue in the state courts.
Felix Frankfurter: But the Indian law is full of inferences where advantage is given to Indian and immunity is also given to him.
Norman M. Littell: Completely. If I may submit it to Your Honor, in the emancipation of the Indian which is the process in which we are living and it's an advanced stage today. If there were 10 points necessary to the emancipation of the Indian, let's assume a hypothetical 10 criteria, number five is citizenship. My distinguished counsel and the courts that he is depending or shocked that the Indian could be a citizen and not be subjected to all the incidents of citizenship including liability for this suit. I say that citizenship was number five on the list of 10, he hasn't attained upon yet. And as Mr. Justice Frankfurter's comment indicates, there are all sorts of seemingly inconsistent immunities, inconsistent with the common law as we know it until that complete emancipation has arrived that we have thousands of them that have arrived at that State and they're living around in the country just as you and I can be sued and sue just like anybody else, that this immunity does not follow the infinite -- the Indian ad infinitum. But it's perfectly clear by the doctrines of this Court, reviewed in our brief, that there is no civil or criminal jurisdiction until Congress has granted it, except, I must make a qualification as you think I'm painting a black and white picture and a ridiculous one, there are incidents to territorial sovereignty of the State. There are sections to this vast reservation, the biggest in United States, 24,000 square miles within New Mexico and Utah and -- and a bit in Colorado and -- and Arizona. It would be futile to put that into the territorial sovereignty of the State of Arizona if there weren't some incidents and your Court -- this Court has held. If the Navajos had leased land to a white man on the Reservation and he was raising his sheep there or grazing livestock, he could be taxed by the State. And I would not be so foolish as to say that that white man on the Reservation is exempt from process of the State, maybe because on the reservation of law. He is subject to the jurisdiction. All of the traders in this -- in this Reservation pay taxes to the State. And I wouldn't say that their personal property could not be attached by a legal process served in the Reservation. Although I reserve the qualification that if the Navajos, under Section 13 of their Treaty of 1868 were back any sheriff to enter the premises, I would reserved the right and let have anybody quote me in this argument to say that I have waived this forever. I would there to contend the Navajos have denied access to this Reservation and you can't come on, but the general law is the contrary. You asked against Fisher, oh I can -- in these cases in our brief. So that -- that territorial jurisdiction has followed onto the Reservation as far as the commission of crimes by a white man, as far as the civil actions by white man against another, but why this legislative history, which I'm about to review which I think if I may suggest it would help Your Honor in this -- in this rather trying field. Now, first, because we have changed our position from the petition below, I would account it below, I must spend a moment on the point that we contended below. There is no jurisdiction because these traders' regulation said that the credit -- that extension of credit was at the traders' own risk and therefore no jurisdiction.
Speaker: As this -- as the Government's suggestion that if we accept that thesis, we don't have to reach the broader and very esoteric other arguments that are involved in your position.
Norman M. Littell: Yes, Mr. Justice Harlan, and I -- I regret that our ally in this case is such a weak ally.
Speaker: [Laughs]
Norman M. Littell: The Solicitor should have stepped up on this issue and helped us backing our position. He took this weak position, an untenable which we had abandoned. We abandoned it below because we have found when we went to write our brief in this very case by consultation with the attorneys and the Department of the Interior that the traders had affected their reaffirmation of its regulation in 1937 which did two things. It took out a provision that the federal employees -- it forbad -- it took out the provisions of federal employees were forbidden in the Indian Bureau, forbidden to help collect the debt. They felt that they are to be the moral suasion of the Bureau of Indian Affairs to collect that debts. It did something else. It took out a prohibition against farms and pledgets and it put it in that they could put farms and pledgets. That gave the traders a real grip, which they have used extensively, all jewelry and sheep and pinyon nuts and all sort of things are pledgets. Furthermore, and this is the policy of the Solicitor's opinion. In order to get around this broad jurisdictional point, and we are aware of your policy and judicial policy of trying to narrow its decision or not to amend the grounds rather a broad ground. It would be superficial and untenable to do it upon the Solicitor's basis. He states the blunt position that now, these debts are unenforceable. And for that ground only, he says the Court had no jurisdiction below.
Charles E. Whittaker: That's subject matter of jurisdiction (Voice Overlap) --
Norman M. Littell: Subject, yes.
Speaker: The thing that puzzles me is when you have such a strong ally as the Government on your side on a narrow point why you were so vigorous in throwing up away that assistance and need for still getting the broader point decided.
Norman M. Littell: Your Honor, we are happy to throw way an untenable position even if sanctified by the Solicitor General of United States. And it is untenable. He wasn't aware of these basic facts. And I asked permission of the Court to file here just a sample list of 215 citations of cases pending in the tribal courts by -- by traders themselves. These debts are enforceable in the tribal courts. And they used the tribal courts all the time. And this is only from three court districts. Two clerks couldn't be reached and it only is the cases in the last few months, hundreds of -- of traders cases that we went back to the reaffirmation of this resolution could be -- could be showed to you.
Earl Warren: Well, Mr. Littell, do you mean that -- that we -- if we should hold against you on your major propositions, your general issue as you raised it that we would be foreclosed from deciding in favor of your client on the one suggested by the Solicitor General?
Norman M. Littell: Your Honor, this -- this Court is the law and that therefore not foreclosed of course, but I would --
Earl Warren: But we must abide by it.
Norman M. Littell: I would -- I -- I --
Earl Warren: You say it's untenable, does that mean legally untenable or --
Norman M. Littell: Oh, I think so, Your Honor. And I'm sure you'll reach that conclusion because it -- it's -- all together incompatible with the language and with the practice, the debts of the traders are enforceable.
Felix Frankfurter: Let's see if I understand what the practice or what practice you offer that over a period in which you have not indicated, suits have actually been brought by traders in tribal courts which you'd have to be dismissed neither as the questions were raised by the defendant or sua sponte by the tribal courts, is that right?
Norman M. Littell: Oh, I think so, if the --
Felix Frankfurter: Now, over what period?
Norman M. Littell: -- if the Solicitor is right.
Felix Frankfurter: Over what period? These -- these are nisi prius cases, all of it?
Norman M. Littell: Your Honor, this is really --
Felix Frankfurter: But I -- I'm (Inaudible)
Norman M. Littell: Here is a telegram listing the cases that I --
Felix Frankfurter: (Voice Overlap) the question is, I don't -- I don't know a thing about it as you --
Norman M. Littell: Yes.
Felix Frankfurter: -- know things about this -- you spoke. I'm trying to elicit the scope of the offer and its significance. Now, over what period are these cases -- these cases exist?
Norman M. Littell: I submit to you this list, Your Honor, on a slightly vague basis that these are pending cases and that the --
Felix Frankfurter: They're now pending at Court?
Norman M. Littell: Now pending.
Felix Frankfurter: (Voice Overlap) --
Norman M. Littell: In -- in -- and -- and the cases that are -- that are not very old. I mean, these are cases now pending for action in the tribal courts, and that if I did a thorough job of checking, I could submerge this Court with the citation of cases since 1937, since the reform of this -- of this tribal regulation of this government regulation.
Felix Frankfurter: If in fact as they are contemporaneous or -- or recent cases is a two-edge in and its implication, namely, lawyers are sometimes wrong about their notion of logistic law. I've known lawyers to be wrong as indeed you have those.
Norman M. Littell: I've been wrong, Your Honor. I regret that -- that it --
Felix Frankfurter: And well, they are not unique, I can assure you, even if we do it among lawyers and judges. Have you furnished the Solicitor General's Office in -- list of these cases?
Norman M. Littell: Right now I've -- no. I -- I got it --
Felix Frankfurter: You had an opportunity to make any response in your -- to the argument of -- of practical interpretation of the regulation.
Norman M. Littell: No, Your Honor. I had no idea of the volume of these cases frankly until I listened in by telegraph. We -- we submit, if Your Honors please, that the -- that the point in the Solicitor's opinion that it's not enforceable is demolished by the facts also by the construction of the language without reference to this -- the fact that the traders do consequently enforced them in over 30 years since this reaffirmation have done so.
Charles E. Whittaker: Mr. Littell, is the -- the decision you have made the same enforceability in a tribal court over enforceability in a court of common law?
Norman M. Littell: Well, it's quite a distinction in practice. Yes.
Charles E. Whittaker: Might there --
Norman M. Littell: I mean if the --
Charles E. Whittaker: (Voice Overlap) --
Norman M. Littell: -- if the Solicitor was right, Your Honor, in saying that these were unenforceable, then they have no business in the tribal courts and the tribal court regularly enforce them and -- and do -- and enter judgment and -- and moneys are paid and Navajos pay and they are collected.
Charles E. Whittaker: (Inaudible) that they are enforced in the tribal courts also (Inaudible) that they'd be enforced -- enforced to the State?
Norman M. Littell: No. That's exactly --
Charles E. Whittaker: (Inaudible)
Norman M. Littell: No, I don't think he recognizes the tribal court. If he recognizes the tribal court, he can hardly say they are enforceable because --
Charles E. Whittaker: (Inaudible) he -- he doesn't recognize tribal courts (Inaudible)
Norman M. Littell: That's right.
Charles E. Whittaker: -- enforced to the State.
Norman M. Littell: That's what we --
Charles E. Whittaker: (Voice Overlap) --
Norman M. Littell: -- that's what counsel for the -- for the defendant said below. And we've abandoned here because of this reaffirmation of the regulation which makes it so superficial and so tenuous in our position -- in our opinion.
Charles E. Whittaker: Well, that's what the Solicitor revived.
Norman M. Littell: He revived it or he retreat to it, Your Honor, and keep you off the broader ground. But the -- the Solicitor says, to give you his precise language, my colleague has handed to me here, “The Interior Department,” reading page 2 of his brief, “Interior Department we -- in -- the Interior Department and we construed this provision as meaning that ordinary remedies for collection of debts including judicial remedies shall not be invoked within the Reservation -- not period, but I mean parenthesis, I say period. And that traders must do business on that basis and that understanding. As long -- remedies are available to reservation, they are used over years. There are 215 with a telegram overnight.
Charles E. Whittaker: And he -- in the tribal court.
Felix Frankfurter: -- he -- I beg your pardon.
Charles E. Whittaker: I say in the tribal court.
Norman M. Littell: Yes.
Felix Frankfurter: And he says in -- and the Indians (Inaudible) into the Bureau?
Norman M. Littell: I beg your pardon?
Felix Frankfurter: The Solicitor General has coupled the --
Norman M. Littell: Yes, he does.
Felix Frankfurter: (Voice Overlap) of the Indian tribe.
Norman M. Littell: Yes, he does it over probably the Solicitors in the Interior Department --
Felix Frankfurter: Yes.
Norman M. Littell: -- to the lawyers, yes. Yes, they coupled. It say “the Interior Department and we --
Felix Frankfurter: Yes.
Norman M. Littell: -- construe --
Felix Frankfurter: I don't have to tell you that -- that that should carry great weight among others in a field that's specialized in the -- you say as Indian law, doesn't have the Interior Department say, “This is our view, presumably, means the study of the intricate variety of Indian legislation, regulation and practice.” That doesn't preclude you're being wholly right. I'm merely suggesting what it is that one has to overcome.
Norman M. Littell: Your Honor, I'm glad with your last statement because I am wholly right. And the depletion of the Department of the Interior as glibly suggested in this one line is absolutely inconsistent with the position they've taken on legislation which I now wish to review with you, completely inconsistent. They have taken our position time and again and due to this day on legislation before Congress and I can't accept this. Let's say this very casual presentation of their point of view.
Felix Frankfurter: And one more -- one more thing that maybe urged in behalf of the petitioner, namely, that it's protective of the Indians but would -- one would -- beyond the alertness the Indian office under some unfriendly administration and that does -- I mean of Indian affairs would take the position against the Indians. But this is protective of this, isn't it, at least to a measure?
Norman M. Littell: The measure we're considering?
Felix Frankfurter: Yes. Is it? To that extend, it's protected, isn't it?
Norman M. Littell: It is protected, but their construction of it is not broad enough. It still leaves open the door to sporadic raves under this Reservation by state jurisdiction as in this case. Please have this physical perspective in mind that if the State has this power to send its processes into this batch reservation where there are now great reaches and discovery of oil and things of that sort, lots of things going on. It has no correlative responsibility to extend the protection of its sheriffs and its courts, unless civil and criminal jurisdiction is extended in an orderly way. They can't sit back and say, “Oh, we'll take this case. We'll go get them on this one,” and yet extend no sheriff services of that Reservation of an entirely by the Navajo belief and no courts called entirely by the tribal courts.
Charles E. Whittaker: -- now you're talking more about the person's jurisdiction and (Inaudible)
Norman M. Littell: No, Your Honor. I'm talking about -- well, I'm talking about any jurisdiction over Indian affairs until civil and criminal jurisdiction have been extended by Congress in -- in the -- in the usual way that they have in the past history of this country, not by accretion. This is the way the camel get into the Arab's tent by these backdoor methods and the State should not be permitted to intrude into -- into the jurisdiction over these Indian affairs.
Felix Frankfurter: Perhaps we'll -- perhaps we'll appreciate your argument, at least I would more, after you've given us this network of legislation.
Norman M. Littell: Oh, I think -- I think that too, Your Honor. The -- the questions are very much appreciated but they -- they don't reach to that point. Now, so much for that -- that ground because I would like to consider that disposed of and I hope the Solicitor's opinion have used -- modified to that extent. In other words, I eliminate to my discussion now the contention that we did make below and abandoned here. And the Solicitor picks up and -- and asserts that -- that the -- that is unenforceable merely because of this credit provision.
Felix Frankfurter: He -- he has withheld all views on the larger issue (Voice Overlap) --
Norman M. Littell: He has withheld them.
Felix Frankfurter: Yes.
Norman M. Littell: With --
Felix Frankfurter: (Voice Overlap) he was righteous, if I may say so, he's right about the regulation to my point of view.
Norman M. Littell: With the -- with the exception of one, Your Honor, with artful skill, he downgrade the most important point in the argument by dropping the -- the consideration of -- of Section 9 of the Navajo-Hopi Rehabilitation Act to -- to a footnote. But let me come to that in -- in an orderly way. We now come to the main issue to the effect that -- that there is no jurisdiction whatsoever. In other words, our reasonable condition -- our -- our contention throughout, counsel of the defendants below and here and in the petition and in our briefs throughout that the Court had no jurisdiction of the person because the Navajo Indians residing on the Navajo Reservation and as much the State does not have civil and criminal jurisdiction over the Reservation. Now, skipping that long line of cases from Worcester against Georgia to which I referred, John Marshall, right on down through the decision of this Court, skipping that base which is adequately set forth in the briefs by looking at the legislation, Congress has carefully maintained the jurisdiction from the day, Your Honor, when we start from the sovereign character of the Indian nation, incredible as it seems today. It was true with all of the immunities that are attached thereto or -- or most of them.
Charles E. Whittaker: Well, that's the basis of Worcester against Georgia.
Norman M. Littell: It is. And Congress has step by step stepped down from that partialling out the jurisdiction by expressed provisions. Now, coming up to date on it, the New York statute of 1948, except for hunting and fishing which was preserved in its -- in its Indian right preserved from their reservoir granted a criminal jurisdiction over Indian Reservations in the State of New York. That was amended in 1950 to extend it to criminal jurisdiction so that the courts of New York then had jurisdiction over all of this. In 1953, there was the general -- a general act extending specifically to five States, Minnesota, Nebraska, Oregon, Wisconsin and California extending civil and criminal jurisdiction of those States over Indian reservations within those States over an Indian country. Now, Section 6 and 7 of that Act is pertinent to our case because Section 6 and 7 said that consent is given to the people of any State to amend the Constitution or statutes to remove impediment to civil and criminal jurisdiction. This impediment exists in Arizona in the Constitution. It is submitted in the union under condition as quoted in our brief that as long as the Federal Government maintains this exclusive jurisdiction to these lands -- these lands until they release from Indian title or absolute jurisdiction of the Federal Government. They have the power. They have the power to get the jurisdiction which they're reaching for sporadically in this one case, under 6 -- Section 6 and 7. So that anytime the people of Arizona want the jurisdiction which is artificially and unnaturally contended for here, they can get it by the legislative process by amending their constitution and amending their prohibition statutes, and they have it under consideration. Out of chronology, I now mention in the Navajo-Hopi Rehabilitation Act, passed in 1949 to design to accomplish the rehabilitation of these two tribes of which Section 9 was added in 1949 to provide in all cases the jurisdiction of the State and the federal and tribal court shall become current. That was vetoed by President Truman. And the Act was passed in the next Congress without it. So here is a clear legislative history. Criminal and civil jurisdiction is not extended even concurrently.
Charles E. Whittaker: (Inaudible) about these things, it's about -- it was passed omitting that provision.
Norman M. Littell: That's what I meant. I'm sorry. Yes. I meant without Section 9, Your Honor. So that --
William O. Douglas: How about Section 9? Would this suit have been maintainable?
Norman M. Littell: Yes. Yes, definitely.
William O. Douglas: It specifically covers this --
Norman M. Littell: Oh, definitely. Oh, no. No question about it, Your Honor, I wouldn't be here. It would be all settled. It's -- and the reasons for the President's veto are set forth in our brief and especially, I referred to again in our -- in our reply. Now, in the decision of the Arizona Supreme Court, Miller against Begay which is absolutely inconsistent with this present opinion which we are reviewing, the Supreme Court of Arizona, the same court held that there was no jurisdiction over a suit by your wife of a divorce -- in a divorce affair who'd been married under Arizona law, under Arizona license, divorced from the tribal court, the wife being unhappy, sued, went back to the Arizona court, she's unhappy about the tribal decision on alimony -- that's by the different concepts of those things. And she sued in the state court and the same court. Chief Justice -- Chief Justice Udall held there was no jurisdiction in the Supreme Court of Arizona, precisely in point with this case and utterly inconsistent with the present holding that this Hugh Lee can maintain this jurisdiction. Now, I find fault with my distinguished ally, the Solicitor in retiring to a footnote. They all submit they can point at Section 9 of the Navajo-Hopi Act was dropped after the President's veto, which hits right in the middle of this case and not to our court on the broad grounds and not the narrow grounds and he should have said so. Now, he speaks in his brief of the reserve powers of the State. What reserve powers? Are the reserve powers whose date over piece in ore, over foreign affairs or Indian affairs? No. The only reserve powers I know that are left to the States and these delegations of power to the Federal Government are in the Articles of Confederation. I admit there's one there. The Article of Confederation giving the power of peace and war reserved the power to the State to make war on Indian tribes that threatened with invasion. Well, of course, the Court can take judicial notice of the -- that the Article of Confederation are no longer in full force and effect.
Felix Frankfurter: Do you think that would be a strength, to take judicial notice of that?
Norman M. Littell: [Laughs]But that was the only legal example that I could find. I don't know what the Solicitor is talking about reserve powers of the State. Are we trying to change the philosophy of constitutional law? The only thing he can refer to properly are the incidental powers of the State sustained by this Court in many decisions, criminal jurisdiction over the white men for crimes on the Reservation, similar jurisdiction as far as the white man's conducts are concerned, jurisdiction over tax cases. The State is not negative in its proper jurisdiction but over Indians on the Reservation it out until this legislation in Arizona is passed pursuant to Section 6 -- Articles -- Sections 6 and 7 of the -- of the Act of 1953. I'd like to save the rest of my time, Your Honor.
Earl Warren: You may, Mr. Littell. Mr. Stevenson.
Wm. W. Stevenson: Mr. Chief Justice and Associate Justices, may it please the Court. In order to dispel any question that might have arisen as to fair dealing or sharp dealing, which I'm certain that Mr. Littell has no intention of inferring the sheep that were attached and impounded were held for a considerable period of time. I had to be fair. They couldn't be turned out to pasture. They had to be feed in a corral as large as this courtroom. In over a period of time, hauling hay and grain from some 75 miles away didn't run those costs up. Those were costs that the sheriff assessed. And as I say, I -- I wanted to dispel any question in anybody's mind that there was a problem on the sharp dealings in that case.
Earl Warren: Mr. Stevenson, I don't believe Mr. Littell said that -- where would the sheep at the time they were attached, were they on the Reservation or off the Reservation?
Wm. W. Stevenson: The sheep was on the reservation and apparently at the home or hold on of the then defendants --
Earl Warren: Yes.
Wm. W. Stevenson: -- and we're taken by truck to a trading post on the Reservation and placed in a corral layer and kept there for a period of time until the -- a sale could be arranged about the time that the sale came along the lands -- this land of lands use. Anyway, we have more sheep than we started with me to start it over, some getting another sale.
Charles E. Whittaker: Do you still own sheep?
Wm. W. Stevenson: No. No, some of them were turned back.
Charles E. Whittaker: (Inaudible) large quantity of sheep in the market and received telegrams (Inaudible)[Laughter]
Wm. W. Stevenson: Now, Justice Whittaker, I believe you referred to or questioned the Denetclaw case, a very recent decision in the State of Arizona particularly with respect to the fact of whether or not the criminal offense occurred within state territory. So there can be no question on that point. The major portion of the Navajo Reservation lies within the exterior boundaries of the State of Arizona. The offense, if any, that was committed -- was committed where a U.S. highway runs through the Reservation. The arrest was made by a state officer and out of that came this Denetclaw case. Gentlemen, the Navajo Reservation is approximately 24,000 square miles of the area. The principle portion of it lies within the State of Arizona. It's still, it's over into New Mexico and there are some in Utah and I am not certain but there maybe a little in the State of Colorado. So that you have, when you stop and think about it, a vast, vast area involved. Now, the Reservation was originally created by the Treaty of 1868, and either by executive order or congressional action, additions have been made to bring it up to the size that it presently contains. That original treaty was signed by the agent of the United States, I believe at that time, was one of the generals that was having trouble in the west with these Indians. That original treaty was also signed, born on behalf of the Navajo by approximately 20 headmen or chieftains. I think it's important, later on, I -- I'll bringing it up here so that you'll have that picture.
Earl Warren: Just a matter of interest, how many -- about how many Indians are there on this Reservation, Mr. Stevenson, do you know?
Wm. W. Stevenson: I can't tell you. It's my understanding though that it's in the neighborhood of some 80,000 people, 75,000 to 80,000 people residing there. Now, in 1868, Worcester versus Georgia was some 30 years old. That case had been decided long in 1932. But also at that time, in 1868, the principle intercourse between what we shall refer to as the white, the Indians was bartered, trade, that type of thing. It hadn't reached any particular extent necessary that the Indian might want and that the trader could furnish. Today, with modern means of travel and with modern means of communication and with an enlightened policy on the part of our Government with respect to the education of these people, we have an entirely different picture in the State of Arizona. Witness the fact that the Navajo has insisted upon his right to vote that in one instance, in our State Supreme Court, a franchise to operate a trucking line was granted to a Navajo, a member of the tribe, the fact that they can, if they see fit and if they have the qualifications to run for public office in the State of Arizona. In fact, in the most recent election, there was a gentleman from Window Rock who ran for state representative.
Felix Frankfurter: For what -- for what district (Inaudible)
Wm. W. Stevenson: It was -- I can't tell you the district, Justice. It was within Apache County.
Felix Frankfurter: Outside of the Reservation?
Wm. W. Stevenson: Outside of the Reservation. It would cover part of and part out as I understood it. I haven't got --
Felix Frankfurter: (Inaudible) a Navajo Indian can run for office --
Wm. W. Stevenson: That's right.
Felix Frankfurter: -- who presented community outside of the Reservation.
Wm. W. Stevenson: That's right. There are --
Charles E. Whittaker: Providing -- providing the district (Inaudible) in the Reservation, is that what you mean?
Wm. W. Stevenson: That is right.
Charles E. Whittaker: Not that he could --
Wm. W. Stevenson: We --
Charles E. Whittaker: -- run in a District Court (Inaudible)
Wm. W. Stevenson: No. No, we're talking about the -- the Navajo who resides on the Reservation but within the exterior boundaries of one of the counties that encompass portions of the Reservation, running for office.
Felix Frankfurter: Really?
Speaker: (Voice Overlap) --
Charles E. Whittaker: (Inaudible) congressional district, is it?
Wm. W. Stevenson: They must certainly be. Now, I -- I am sorry, I haven't checked that. I do know this that they can and have run for public office in Apache County. There are sufficient members of the tribe who properly organized to elect the entire board of supervisors for the county, and enact the ordinances and regulations, promulgate the rules by which your county governors operated.
William J. Brennan, Jr.: Are there any legislative districts or county units exclusively within the bounds of the -- of the Reservation?
Wm. W. Stevenson: No. There's none.
William J. Brennan, Jr.: You said they have the right to vote in the State?
Wm. W. Stevenson: They have the right to vote. That was right. But not for any state officers or legislators representing any particular segments of the Reservation itself. Their right to vote would be limited to the -- the right to vote for the officers that -- that I would vote for that is to say within a certain county. You see the area is so large that it encompasses parts of Navajo, Apache and Greenlee Counties.
William J. Brennan, Jr.: But the county lines are not coextensive with or entirely within the Reservation as such? It is 24,000 square miles, isn't it?
Wm. W. Stevenson: I follow you. No. The -- the county line, if I get the -- your question, the county line is partly in and partly out. In short, let's put it this way that perhaps half of the area lies within the exterior limits of the present Navajo Reservation and half out. But nonetheless, they are citizens and residents. Our Supreme Court has held that they are competent. The Navajo was a competent witness in judicial proceedings that he can serve as a juror. Now --
Charles E. Whittaker: Do they do that -- do they do that in the court of the State? Serve as juror?
Wm. W. Stevenson: We have had one or two in my county at Coconino that served as jurors. Now, I don't cite those as benefits that the State of Arizona has given this tribe. I merely cite them to indicate the economic change that has taken place in some 125 years since the days of Worcester verus Georgia. These changes present new, different and very intriguing problems.
Felix Frankfurter: Mr. Stevenson, the -- these changes haven't affected the broad constitutional relation being the Federal Government and the States vis-à-vis Indians, that's it. I mean -- Worcester against Georgia is still citable and still as it were the foundation of any consideration of power. I'm not now talking about recognition, conscious recognition to legislation whether explicit or implied by Congress and supply the constitutional relationship between the Indians as -- as it were a people of -- of the denominated and aide of foreign people within the United States leaving the control that Congress chooses to exercise it and to the extent where it does choose wholly within the federal authority. (Inaudible)
Wm. W. Stevenson: Not that I know of.
Felix Frankfurter: -- pass changes in -- in the actual recession from that abstract political legal position but no change in the constitutional framework.
Wm. W. Stevenson: That is right. Commercial intercourse and that is what we have here inevitably brings disputes and problems and legal questions that demand trial for a determination thereof. The problem in this case was fairly simple. It was the sale of merchandise between the trader on the Reservation operating a store on that Reservation and -- and then residing on that Reservation and buying from them was a fairly simple one. But it's easy to conceive of a myriad of more difficult problems in the field of civil law that are bound to come along. That is why we want to see it decided on the broad basis not on a narrow regulation. At the outset, we were immediately confronted with this problem is that conceivable within the United States. There is an area approximating the size of the State of Kentucky in which there's no civil law in search of a forum. It was our -- it was -- that the place to look but to the federal courts, to the state courts.
Charles E. Whittaker: And not the Congress?
Wm. W. Stevenson: Congress, Mr. Justice, if I may so, I believe that by legislation assumed exclusive jurisdiction, that is they could oust the State of any jurisdiction. Congress --
Charles E. Whittaker: They also seek jurisdiction -- (Inaudible)
Wm. W. Stevenson: I don't think they need to. I think we have it to a certain extent.
Charles E. Whittaker: And this could be made very clear by a (Inaudible) of that jurisdiction by Congress, does it not?
Wm. W. Stevenson: We trust this decision may clear it up, one way or the other. But it could be clear by a congressional enactment but it's my position that the congressional enactment in this instance and on this point would not be much more than analogy because I don't think that Arizona has ever ceded or lost that jurisdiction.
Felix Frankfurter: Clear me up -- clear me up a little bit, Mr. Stevenson. You trouble me, And you now made it firm. You said Congress could oust, that implies that it is in but maybe supplanted rather than -- that it isn't in but may have a grant given to them.
Wm. W. Stevenson: It was partly --
Felix Frankfurter: What is your -- what is the basis for saying that?
Wm. W. Stevenson: It was possibly the choice of a wrong verb.
Felix Frankfurter: Well, I don't care about the verdict particular.
Wm. W. Stevenson: But none --
Felix Frankfurter: (Voice Overlap) --
Wm. W. Stevenson: -- and nonentheless are the basis for saying that is my argument as it unfold --
Felix Frankfurter: All right.
Wm. W. Stevenson: -- and I'm coming right to it.
Felix Frankfurter: Very well.
Earl Warren: Well, is it your position that -- that the Act of 1953 was meaningless so far as giving greater jurisdiction to the States of Minnesota and California and -- and Oregon and the other States that were involved there?
Wm. W. Stevenson: Mr. Chief Justice, I don't know what treaties were involved in those States with respect to Indian tribes residing therein. I don't know what is contained in the Enabling Act of any of those States so I can't say that it's meaningless insofar, say, California is concern or Nevada or Utah or any of the other western states.
Speaker: (Inaudible)
Earl Warren: Well, what I mean is this. If they have included you in this Act, that is the State of Arizona, would it confer any greater jurisdiction on your courts than you now have?
Wm. W. Stevenson: Yes.
Earl Warren: To what extent?
Wm. W. Stevenson: It would have. To this extent, we would -- Arizona would then have had the criminal jurisdiction as well as --
Earl Warren: Now, let's take the civil --
Wm. W. Stevenson: All right.
Earl Warren: -- take with the civil jurisdiction.
Wm. W. Stevenson: All right, fine.
Earl Warren: Would it have granted you any greater civil jurisdiction than you have now?
Wm. W. Stevenson: I -- my position is that it would not except possibly in the field of domestic relations and not the --
William O. Douglas: I thought the levying of the attachment of the sheep?
Wm. W. Stevenson: I -- I beg your pardon?
William O. Douglas: How about attachment?
Wm. W. Stevenson: Well, the --
William O. Douglas: The Court denies that you -- they had the power to do that.
Wm. W. Stevenson: That is right because the Federal Government through the Commissioner of Indian Affairs has regulated the --
Felix Frankfurter: Took over.
Wm. W. Stevenson: -- sales. No, they have taken over precisely.
Felix Frankfurter: Yes.
William O. Douglas: But under the --
Wm. W. Stevenson: --Precisely.
William O. Douglas: -- under the new proposed bills, you would have had -- you would have the power of attachment, wouldn't you?
Wm. W. Stevenson: Under the new proposed bill, I don't think that it would have changed that situation with respect to Indian goods of that nature.
Earl Warren: Well, Congress must thought so because it gave to your State and other States that were not included in that Act the opportunity to become -- to get under the umbrella there by changing your laws so as to do certain things and assume certain jurisdictions, isn't it?
Wm. W. Stevenson: That is right and it would clarify the picture. There is no question about that. Basically, when I got into this matter with sometime after the suit had been filed, I felt that we still had jurisdiction, not -- not that we still have it that -- but that we did have it --
Earl Warren: Yes.
Wm. W. Stevenson: -- in a civil matter.
Earl Warren: Yes. Well, assuming that that Act does something by way of granting jurisdiction to those five States over and above the jurisdiction you have, your constitution and laws at the present time forbid you from assuming that jurisdiction, do they not?
Wm. W. Stevenson: Over the lands, over the lands not the people inhabiting that area. Over the land. And that are -- are -- the disclaimer in our constitution and the disclaimer appearing in our Enabling Act, that was -- which was carried in to the Constitution --
Earl Warren: Yes.
Wm. W. Stevenson: -- are almost identical in language with that in the State of Montana. And in that particular instance in the State of Montana, that disclaimer was interpreted to mean jurisdiction over lands not people.
Earl Warren: Did Congress --
Wm. W. Stevenson: No.
Earl Warren: -- made that distinction in the 1953 Act?
Wm. W. Stevenson: Congress made no distinction.
Earl Warren: Distinction between land and personals.
Wm. W. Stevenson: Not that I recollect.
Earl Warren: You just granted civil and criminal jurisdiction over -- over the reservations and saying that those States that were prohibited by their own constitution and -- and statutes could come under the Act if they should change.
Wm. W. Stevenson: That is right.
Earl Warren: And you have not change.
Wm. W. Stevenson: We have not change.
Earl Warren: Yes.
Wm. W. Stevenson: Not change.
Felix Frankfurter: Did I understand the line of argument that you are going to enfold it is that Arizona, a particular situation by virtue of the treaty with the Indians, by virtue of the terms of admission, by virtue of the legislation pertaining to Arizona, you don't care about the other 47 States at this -- at the moment?
Wm. W. Stevenson: That is right.
Felix Frankfurter: Arizona or this body of treaty, constitutional provisions, legislation, congressional response thereto let, didn't require a grant from the Congress but put in to Arizona power which Congress could took away -- they could take away but in -- in -- for lack of withdraw, it is there. That's your position.
Wm. W. Stevenson: That's right.
Felix Frankfurter: And -- and you're going to develop that with (Voice Overlap)
Wm. W. Stevenson: That is what I'm talking about.
Felix Frankfurter: Exactly, all right. I just want to know what your position is. That's it, is it?
Wm. W. Stevenson: That is it. It is our position that jurisdiction is vested in the state courts of Arizona except where Congress has assumed jurisdiction or reserved the same pursuant to the Constitution of the United States. The United States Constitution Amendment 10 provides that the Federal Government is one of delegated powers.Or power is not delegated to the United States nor prohibited by the Constitution or reserved to the States. So looking at that law, we find nothing there that precludes us from assuming Arizona has jurisdiction. The United States Constitution Article 1, Section 8 provides, “Congress shall have the power to regulate commerce with the Indian tribes.” A question immediately arises but it's meant by commerce.That's been defined by this Court. The U.S. versus Holliday, one of the older cases, 3 Wall. 407, defines it as traffic intercourse even more than that, the buying, selling and exchanging commodities. Certainly, the -- the Congress of the United States might assume jurisdiction with respect to civil matters involving white Indians but it can't be implied from this that it automatically has it. That's the Commerce Clause. Now, our Enabling Act, Section 20 thereof provides and the people of Arizona covenant thereby that until the title shall have been extinguished, the same shall be in remain under the absolute jurisdiction and control of the Congress of the United States. I'm referring thereto lands. Article 20 of the Constitution of the State provides that people disclaim all right entitled to the lands within the boundaries of the State which lands are owned or held by an Indian tribe until the title says tribes shall have been extinguished and that the same shall be in remain subject to a disposition and under the absolute jurisdiction and control of the Congress of the United States. Again, they are referring to the land not the peoples inhabiting those lands. As I said a moment earlier, the Draper case, which is cited, I think, in both petitioner's and respondent's briefs interprets Montana's Enabling Act Clause as covering only land and not people. Now, as of that moment having what I would refer to as the basic law, we -- we find nothing that would indicate that the State of Arizona does not have jurisdiction.
Earl Warren: Has your Court, your Supreme Court interpreted that constitutional amendment so as to distinguish between jurisdiction over land and people before this case?
Wm. W. Stevenson: No, our Supreme Court has not (Voice Overlap) --
Earl Warren: And did it -- did it in its opinion here distinguish it on that basis.
Wm. W. Stevenson: That is right. That's the only case --
Earl Warren: Basis.
Wm. W. Stevenson: -- that raises the point.
Earl Warren: Yes. But it did specifically base it upon that distinction between the land and -- and the individuals or is that merely your argument now?
Wm. W. Stevenson: That is my argument now. And I'm (Voice Overlap) --
Earl Warren: What did the Supreme Court say about that?
Wm. W. Stevenson: The lands versus the people, our Supreme Court based it -- if you could give me one moment (Voice Overlap) --
Earl Warren: Certainly.
Wm. W. Stevenson: (Inaudible) Mr. Chief Justice, they didn't mention that point.
Earl Warren: Well, then -- then point is -- is open in your State. It just hasn't been decided.
Wm. W. Stevenson: That is right.
Earl Warren: And so it's a matter of first impression here.
Wm. W. Stevenson: Now, then, for many years, there has been absolutely no question but that the United States -- the federal court system had jurisdiction with respect to criminal matters. But if we take a glance back to these cases in history, we find 109 U.S. 556, Ex parte Crow Dog, in which case it was held that there was no federal jurisdiction to punish the murder of one Indian by another on an Indian reservation. Now, after that, Congress came along and enacted effective legislation. I think I maybe in error on this but I think it was 10 Major Crimes Act. There was a major crimes act or whatever they call it at the time. Now, then, that has been because of, again, economic influences developed and enlarged by virtue of the Assimilative Crimes Act which indicates or evidences an assumption by the United States all criminal jurisdiction. With respect to civil jurisdiction, we have the one point in Arizona and that was Begay versus Miller and that case follows the decision in an old United States case, U.S.versus Quiver, 241 U.S. 602. In that -- in the Begay case, the Court recognized the rights of tribal Indians to deal with their people amongst themselves on personal and domestic affairs. Now, that was the -- that was the breadth, that was all that was covered in that. It was a domestic affair, a divorce that was involved. The husband or the wife whichever had gotten a divorce in the state court and the other has gone to a tribal court, and done the same thing. The state court -- I guess, it was the wife who went to the state court. The wife was granted alimony. He didn't pay. He was cited on a contempt charge and put in jail and that's the way this case came up. The husband had a divorce from the tribal court that was considered bona fide and valid. Our Supreme Court says in matters relating to domestic affairs, we recognize their right.
Potter Stewart: It was the -- was the decision of your Supreme Court limited in its language through domestic relations kind of a case?
Wm. W. Stevenson: That is my interpretation of it. Yes.
Potter Stewart: That's a --
Wm. W. Stevenson: It was limited to that one field, domestic relations and --
Potter Stewart: Family affairs.
Wm. W. Stevenson: Person affairs.
Potter Stewart: Affairs. You're talking about the?
Wm. W. Stevenson: Begay versus William.
Potter Stewart: Begay -- how about Begay against Miller?
Wm. W. Stevenson: Well, pardon me, Begay versus Miller.
Potter Stewart: Begay against Miller.
William J. Brennan, Jr.: It's put on jurisdictional ground.
Wm. W. Stevenson: As I recollect it was, yes, but not outside the scope of that very limited area.
William J. Brennan, Jr.: Well, what was the basis upon which your Supreme Court said, “Your state court has no jurisdiction”?
Wm. W. Stevenson: The basis, apparently, was that the husband filed -- the wife's suit was pending in the state court and the husband went into the tribal court and had a more effective procedural remedy from this so there was a -- a divorce at the time it first occurred then outside.
William J. Brennan, Jr.: (Inaudible) or something like that. It's something like that. I don't -- as I understood it, I haven't read the opinion, but as I understood it, this was grounded on complete absence of jurisdiction in the state courts, for example, as if these parties would first come to the state courts for a divorce without having been to the tribal court, as I understood it, your Supreme Court affects that that there would have been no jurisdiction entertained, if that's the (Inaudible), am I right in that?
Wm. W. Stevenson: Are you saying to me that in the Begay case, your understanding is that the Supreme Court reversed the thing that we have no jurisdiction?
William J. Brennan, Jr.: Yes.
Wm. W. Stevenson: No.
William J. Brennan, Jr.: I'm -- I'm wrong in that.
Wm. W. Stevenson: That is right.
William J. Brennan, Jr.: It's -- in other words the decision was influenced by the facts that there are -- had already been a divorce proceeding in the tribal court?
Wm. W. Stevenson: It was influenced by that tribe. Yes.
William J. Brennan, Jr.: I -- I have difficulty understanding how that bears on jurisdictions of the state court.
Wm. W. Stevenson: Well -- now, the -- Justice (Inaudible), he says one action was pending that is the tribal action when they brought the suit in the Superior Court of the State of Arizona.
William J. Brennan, Jr.: Or was that on some notion then of a concurrent jurisdiction, one court having taken jurisdiction, the other one would not interfere or something like that?
Wm. W. Stevenson: I didn't gather that from the opinion. I (Voice Overlap) --
William J. Brennan, Jr.: Well, then, let me put the question to you this way. Suppose it never been a tribal court proceeding, would it be, in Arizona, possible for those parties to have -- had an action to determine -- divorce action determined in your state court?
Wm. W. Stevenson: Oh, yes. Oh, Yes. And that it is quite frequently done. The Indian man and Indian wife had come in, got a divorce in the state courts.
William J. Brennan, Jr.: And that's not done on any expressed grant by Congress to your state court to entertain that kind of action between the two?
Wm. W. Stevenson: I beg your pardon. That's not done.
William J. Brennan, Jr.: Under any expressed grant of Congress--
Wm. W. Stevenson: No.
William J. Brennan, Jr.: -- the Arizona court entertain it?
Wm. W. Stevenson: No.
William J. Brennan, Jr.: What -- what's the basis upon which the state court says they have jurisdiction (Inaudible)
Wm. W. Stevenson: I don't think it's ever been challenged until we got --
William J. Brennan, Jr.: In other words --
Wm. W. Stevenson: -- in -- into --
William J. Brennan, Jr.: -- the basis really would be --
Wm. W. Stevenson: -- right here.
William J. Brennan, Jr.: -- the very argument you're giving us to sustain jurisdiction in this case.
Wm. W. Stevenson: That was right.
Felix Frankfurter: And the tribal courts (Inaudible) jurisdiction?
Wm. W. Stevenson: The tribal courts -- I'll put it this way. So far as I know, the tribal courts do have because our State Supreme Court recognized as valid the, shall we call, the decree of divorce, it was entered by a tribal court on the Navajo Reservation.
Felix Frankfurter: To strengthen this -- perhaps to diverting line of inquiry what -- on the basis of what law do -- the federal courts grant divorce? Arizona state law? What are your grounds for divorce in Arizona?
Wm. W. Stevenson: The tribal court's ground -- grant divorce on the basis of no law that I know of. I (Voice Overlap) --
Felix Frankfurter: Bare law, Indian law.
Wm. W. Stevenson: It has to be tribal customs.
Felix Frankfurter: Customs. Now -- and your -- the state courts of -- of Arizona respect on a Full Faith and Credit Clause under the theory, the tribal law or decree. Now, did I understood you to say that the Navajo husband and the Navajo wife can go into the state court and get a divorce which must be based on some allowable grounds for divorce of Arizona law which maybe in conflict with the tribal law of divorce?
Wm. W. Stevenson: They have done it.
Felix Frankfurter: (Voice Overlap) problem here but this opens up interesting possibility --
Wm. W. Stevenson: They have done it.
Felix Frankfurter: -- under the law and state law. They've done that.
Wm. W. Stevenson: They have done that.
Felix Frankfurter: And yet, you -- yet, if Mr. Littell's argument prevails assuming it's applicable to the divorce situation which has authored its own quiddities and oddities of law, you could -- hereafter, the wife could challenge the jurisdiction of (Inaudible) that husband to challenge the jurisdiction of a suit for divorse -- therefore divorce in court and a state court, is that right?
Wm. W. Stevenson: Now, I -- I'm not sure that is right, Justice Frankfurter.
Felix Frankfurter: And you have to discriminate between divorce jurisdiction and non-divorce jurisdiction.
Wm. W. Stevenson: You see in the -- in this -- the instant case, the Begay case, the husband went to the tribal court and instituted his actions. The wife and -- went into the state courts and --
Felix Frankfurter: Well, but -- but if he contested her on Mr. Littell's ground, he could contest the jurisdiction of the Court and the proceeding would have to be dismissed. Is that right? Unless he tells (Voice Overlap) --
Wm. W. Stevenson: On the basis --
Felix Frankfurter: -- I'm wrong.
Wm. W. Stevenson: -- of his argument?
Felix Frankfurter: Yes.
Wm. W. Stevenson: That is right.
Felix Frankfurter: Of course, there maybe a -- there maybe a good deal of so-called practice that hasn't been challenged, but one way or other, either lawyers or litigant could always raise the questions as long as there's pertinence on litigation.
Wm. W. Stevenson: Well, it's readily apparent that a wife, an Indian convicted of a crime or charged with a crime, committed on the Reservation, is going to make this appeal, say -- be properly protected, that's readily apparent. That is why the body of law relating to criminal law on those reservations is so well defined and clear but it is not readily apparent why a trader would be hard-headed about $361 and will clear up the United States Supreme Court on the question of civil jurisdiction.
Felix Frankfurter: (Inaudible) insidious people.
Wm. W. Stevenson: [Laughter]
Earl Warren: Well, I take it that you're -- you're interested more than in -- just dollars and cents in this case, are you not, because I noticed you joined, you and Mr. Littell joined in saying that the -- the narrower issue is really not involved here, it's a broader issue as to whether they do have jurisdiction that bothers you? You -- you're not particularly interested in -- in the money value of this case, are you?
Wm. W. Stevenson: No. That's not all.
William O. Douglas: What's your position?
Earl Warren: Yes.
William O. Douglas: -- on the counterclaim?
Wm. W. Stevenson: I beg your pardon?
William O. Douglas: What position do you take on the counterclaim?
Wm. W. Stevenson: Well, the position (Voice Overlap) --
William O. Douglas: I don't find you've mentioned in your brief. You don't mention it in your brief.
Wm. W. Stevenson: No. The position I took was that it -- it had been dismissed pursuant to motion pending his state of claim and that was the end of it. Now, you -- I think they're wondering about the assumption of jurisdiction or the acceptance of jurisdiction.
William O. Douglas: I'm thinking of Justice Whittaker's earlier question. You don't make any point at that?
Wm. W. Stevenson: I don't make any point about it at all.
Charles E. Whittaker: (Inaudible)
Wm. W. Stevenson: No. No, Justice.
Charles E. Whittaker: (Inaudible)
Wm. W. Stevenson: Yes.
Charles E. Whittaker: (Inaudible)
Wm. W. Stevenson: He can do it in either sides --
Charles E. Whittaker: (Inaudible) and if he doesn't file a counterclaim, he stepped into the jurisdiction of (Inaudible)
Wm. W. Stevenson: That's right.
Charles E. Whittaker: (Inaudible) to say that the Court didn't have jurisdiction of (Inaudible)
Wm. W. Stevenson: Looking back as a wonderful point, at the time that this case came on for trial, we just stipulate it as to the facts. They were interested principally in the broad point, where does the civil jurisdiction lie?
Charles E. Whittaker: That's why (Inaudible) is that right?
Wm. W. Stevenson: I -- I think the broader issue that you probably are referring to, Your Honor, is the question of where that jurisdiction lies, that civil jurisdiction. And --
Charles E. Whittaker: How could you reach that if (Inaudible)
Wm. W. Stevenson: Well, without going back -- refer to the pleading file, I can't tell you but it seems --
Charles E. Whittaker: (Inaudible) they did -- they did file a counterclaim.
Wm. W. Stevenson: That is right.
Charles E. Whittaker: (Inaudible)
Wm. W. Stevenson: That's constituted the fairness.
Charles E. Whittaker: All right. Could they (Inaudible) the jurisdiction of the Court?
Wm. W. Stevenson: Prior to the finding of counterclaim, Your Honor, is we have stipulated that their answers did not constitute (Inaudible) so far as they were questioning jurisdiction all the way. They challenged all the way that brought the -- the question. Now, I can't give you the -- I can't recollect that -- out of my mind that the point that you're getting at on that counterclaim, what transpired on, I don't know (Inaudible)
Charles E. Whittaker: The record shows that one (Inaudible)
Earl Warren: Mr. Stevenson, have you seen the -- the memorandum that Mr. Littell submitted with this long list of cases showing that your courts there have accepted jurisdiction in -- in cases involving commercial transactions on the Reservation?
Wm. W. Stevenson: I understood, Mr. Justice -- Chief Justice, that this constituted a list of claims outstanding filed by -- in some instances of white Indian traders against Indian (Inaudible) of the transactions arising on the Reservation.
Earl Warren: Yes. Now --
Wm. W. Stevenson: (Voice Overlap) --
Earl Warren: -- may I ask you, if this -- if this is the usual practice in Arizona courts?
Wm. W. Stevenson: The tribal courts, Your Honor.
Earl Warren: Oh, these are the tribal courts?
Wm. W. Stevenson: These are tribal law.
Earl Warren: (Inaudible) oh, tribal courts. Yes, I see.
Wm. W. Stevenson: And I -- I don't know of any way to -- to oppose that argument.
Earl Warren: Yes. I -- I misconceive the report that I thought --
Wm. W. Stevenson: That's right. Well, you -- you raised the point that I wanted to come to. And I know of no --
Earl Warren: Yes.
Wm. W. Stevenson: --in a way to -- to get out of except to point out that the Navajo tribe is not a corporation. It doesn't have a constitution. It appears to me, it's an association of individuals. Now, let me get to a very, what I consider, dangerous position, that being the case, then you and I and 67 others can form an association and set up our own government. We could set up own courts by what authority is the tribal courts created.
Earl Warren: Oh, isn't the answer to that that either of the treaties -- the Treaty would be United States or congressional act or regulations of the Department of Interior to permit this?
Wm. W. Stevenson: Well, the regulations, the Interior Department regulation arise out of 19 Stat. 200, power to appoint traders with Indians, the permission of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribe and to make such rules and regulations that he deem just and proper, specifying the kind and quantity of goods. The price of which (Inaudible) shall be sold to the Indians. Now --
Earl Warren: But that subject also to the act of -- the act of Congress, is it not, which says that white traders shall not sue on obligations that -- incurred in the Reservation.
Wm. W. Stevenson: But now -- Chief Justice, you're not referring to the act of Congress, you're referring to see the regulations promulgated by the Commission of Indian Affairs on that point. And the -- that when -- specifies that all trade shall be at the traders' risk. Now, the -- the brief of the United States amplifies that or expand it into this type of thing, but that gives -- that takes away from the State any jurisdiction it had. But when the regulation says that all trade shall be at the -- the traders' risk, all credit extended shall be at the traders' risk. I failed to be able to interpret that as meaning that you're going to have to go into an entirely different set of courts. I --I don't -- I -- it seems to me that's a strain and an unnatural interpretation of that small phrase. I would think I should give one or two moments to this Worcester versus Georgia which is unquestionably the leading case on Indian law cited time again without end. And in that case, Chief Justice Marshall's opinion was based on this type of finding. This Treaty, Hopewell does explicitly recognize the national character of the Cherokee, their right to self-government and does guarantee their lands. Cherokee nation is a distinct community occupying its own territory with boundaries accurately described in which the laws of Georgia can have no force, and which the citizens the Georgia have no right to enter but with the assent of the Cherokees themselves found that the Cherokee Nation was not a part of the State of Georgia. They were attempting to extend their county limits to incorporate part of the State of Georgia but this decision is based on the fact that that was not a part of the State of Georgia. Now, with this Reservation, the Navajo that we're talking about and that is our problem here, it is encompassed within the exterior boundaries of the State of Arizona. Well, gentlemen, in summation, it is our position that the sovereignty of Arizona is plenary over its territory except where that sovereignty is reserved to the U.S. or has been relinquished and assumed by the Government. But the Congress of the United States may assume jurisdiction as granted. We -- I don't question that to the extent that such assumption of state courts would be the best of the jurisdiction and here is where it happened. Neither our Enabling Act nor our constitution has divested the State of Arizona of jurisdiction either criminal or civil that came through legislation of this Congress. We submit on the basis of foregoing that the decision of the Arizona Supreme Court should be affirmed.
Potter Stewart: Mr. Stevenson, before you sit down, Mr. Stevenson, I have a couple of questions which -- from my own information of Ohio or even Sixth Circuit, we didn't have any Indian cases and I have a lot to learn on this subject. But -- first of all, am I right that the Assimilative Crimes Act gives jurisdiction to the federal courts of criminal offenses committed by one Indian against another Indian within this Reservation, is that correct or not?
Wm. W. Stevenson: That is -- that is my understanding of it, yes.
Potter Stewart: So that --
Wm. W. Stevenson: If the -- if the -- let me put it this way, if the penalty in the state act is broader than the penalty set up in the Federal Act then the penalty in the Federal Act applies for deciding that opinion.
Felix Frankfurter: Well, in the case of a civil and crimes act, you -- you haven't got any -- it's a rare case that you got a federal penalty for the commission of state offense, isn't it?
Wm. W. Stevenson: That is true. I -- I ran across one the other day. I can't think of the name of it, that's why I mentioned that.
Potter Stewart: But generally, subject to, perhaps, qualifications, the federal courts have jurisdiction for criminal offenses by one Indian against another Indian committed within this Reservation because of federal legislation, you say. And secondly, I didn't quite get the distinction that you made in cases of jurisdiction in civil cases of wrong or litigation between one Indian and -- and another Indian or within the Reservation. You made a distinction between domestic relations and family cases on the one hand and all other types of civil cases on the other I thought and I wondered upon what that distinction was based.
Wm. W. Stevenson: That --
Potter Stewart: I think you told us but if so, I missed it, I think.
Wm. W. Stevenson: That distinction was based on this, the fact that in the Begay case, that was the divorce case in the Arizona Supreme Court, they confined their opinion to that one narrow point recognizing the right of the Navajos to govern themselves with respect to personal and domestic affairs involving their tribes and their people.
Potter Stewart: But -- is it -- so that the -- the distinction that you pointed out stems only from that decision of the Arizona Supreme Court and the Begay case --
Wm. W. Stevenson: That is right.
Potter Stewart: -- not from any -- anything else?
Wm. W. Stevenson: That is right.
Potter Stewart: Thank you.
Charles E. Whittaker: I must ask if I might. (Inaudible) one more question (Inaudible) one more. Do you have anything to say about the question of whether the statement of the regulation that you -- trader extends credit to (Inaudible) Indian at his own risk destroys subject matter of jurisdiction?
Wm. W. Stevenson: Do I have anything to say --
Charles E. Whittaker: (Voice Overlap) --
Wm. W. Stevenson: -- to the effect that that does destroy?
Charles E. Whittaker: This position that you're telling. The Solicitor General takes one position (Inaudible) Mr. Littell says it was not. The Solicitor General says it governs. Are you (Inaudible) or do you agree with Solicitor?
Wm. W. Stevenson: Well, Mr. Justice Whittaker, my answer to you is this. The -- the phrase often it shall be at the traders' own risk to me means only one thing that the United States of America as the guardian of the Navajo Indian isn't underwriting that bill and I sense the word. Now, that's what it means to me and -- that simple language. I don't think that it means that state courts are ousted of jurisdiction. I think if that had been the intent, then I would have gone further and say more.
Charles E. Whittaker: Now, you -- you agree with Mr. Littell (Inaudible)
Wm. W. Stevenson: I -- I'll put it this way. I thought that Mr. Littell's reply brief covered the point admirably.
Charles E. Whittaker: (Inaudible)
Wm. W. Stevenson: To that extent.[Laughter]
Earl Warren: Mr. Stevenson, may I ask you this one more -- one more question? In view of your broad claim of jurisdiction on the part of the State of Arizona in these matters, how do you make the distinction between your jurisdiction over -- over this individual and his business affair on the one hand and then say that there is no jurisdiction so far as the attachment was concerned?
Wm. W. Stevenson: If I said that I -- I perhaps misstated.
Earl Warren: Well, but what your Court -- your Court seemed to make a distinction between the two views, Supreme Court and how do you justify that in your argument here?
Wm. W. Stevenson: Our Supreme Court justify that this way looking at the code of federal regulations and the regulations promulgated by the Commission of Indian Affairs with respect to trading on the Navajo and Hopi Reservation, that Court said, “Well, the United States has assumed jurisdiction with respect to this type of property, sheep, therefore, the Sheriff of Apache county could not possibly have a test of ship and sold them.
Earl Warren: And is that your argument to us and is that the basis on which you would want us to -- to distinguish between the two?
Wm. W. Stevenson: I think so, yes.
Charles E. Whittaker: And you really think (Inaudible)
Wm. W. Stevenson: That's -- that's all I've got out of the State Supreme Court on that.
William J. Brennan, Jr.: You mean, Mr. Stevenson (Inaudible) your Supreme Court recognized that as guardian of the Indians, the Government could effectively withdraw property of the Indians of this kind in any event from vulnerability to attachment or other disposition, is that it?
Wm. W. Stevenson: That is correct. It goes back a little into the history that they have abandoned in the past a nomadic type of people, sheep herders, that sort of thing. Now, what the Government has attempted over a period of, let's say, since the first term of Franklin Roosevelt as president is to encourage these people in a way of letting -- pardon me, give them a livelihood, build up their herds, build up their sheep so the Government has put money into it, as I understand it, by furnishing sheep.
William J. Brennan, Jr.: And has said --
Wm. W. Stevenson: So they feel that they have some claim.
William J. Brennan, Jr.: Well, we have in many state laws, including my own State, property exempt from attachment or execution up to $100 or $200 if it consists of household furniture or clothing and that sort of thing. This is much different, is it really?
Wm. W. Stevenson: No, it isn't a great of difference. Thank you, Mr. Chief Justice.
Earl Warren: Mr. Littell, so I won't have to interrupt you during your -- your closing argument, I just like to ask you to what point you -- you filed this memorandum. I -- I misinterpreted it. I -- I thought these were recent cases that had been filed in the state courts but I was corrected by counsel. And I -- I don't know now just what your point was concerning it. Would you mind telling us?
Norman M. Littell: Yes, indeed, Your Honor. It disposes conclusively of the narrow contention upon which the Solicitor's opinion is based, it's in the Solicitor's brief, it's based amicus that these debts are unenforceable. It's merely to show that they are enforceable. He takes one construction of this CFR regulations which let's read for the moment, it's only a line that trader may extend credit to Indians but credit will be at the traders' own risk. Now, he's joins with us in saying that the court below lacked jurisdiction on the narrow ground under that language, the debt is unenforceable. I say it is enforceable in the tribal court. We're engaged in no unholy conspiracy, Your Honor, to get a broad decision of this Court.
Charles E. Whittaker: (Inaudible)
Norman M. Littell: No, Your Honor, it's the line in your thalweg. We are not seeking and if we had a narrow ground, we would go for it. We want to win this case to begin with. We went for in the petition and it was only on the revelation of the history of this regulation and its weakness that I, an associate counsel, could not conscientiously come before this Court as practitioners who hope to come again someday and makes so tenuous and superficial the contentions that these -- that these debts are therefore unenforceable so we drop this point.
Felix Frankfurter: Would -- would you spread that delicate (Inaudible).[Laughter]
Norman M. Littell: Your Honor, I will do my best in the case, the next bar association.[Laughter] I have never made a contention here which I felt was not tenable and my colleague -- associate in this case has not either and I think this is an untenable one. And I think we have demolished it. I think this -- the showing of these cases is a -- is superficial, if you please, Your Honor, I -- in the surface, 250, it's quite as skimming though to show that these debts are enforced. The Solicitor is wrong about it. Now, that is our only ground, sir, for -- for saying that this case should be properly launched in the stream of magnificent cases holding to the same effect that we're condemning for by this Court.
Charles E. Whittaker: (Inaudible) one point to wit, the Court did not have jurisdiction of the person (Inaudible)
Norman M. Littell: It did not have jurisdiction of the person of the -- of the petitioner on the fact of this case, precisely that's the point.
Charles E. Whittaker: That -- that's the whole point.
Norman M. Littell: That's whole point.
Charles E. Whittaker: And (Inaudible)
Norman M. Littell: Now, thank you for asking that because I just wanted to come to that which I can see and very recently abolish, Your Honor -- Honor, considerably. Two or three times I've quickly put my hand on two times in the course of these proceedings. It was stipulated by counsel that everything here would be without prejudice as my able colleagues from Arizona has agreed and his signatures here so he must of course. I won't bother you to read those but, Your Honors, bothered by the effect of them. I say that this is a procedural matter for the courts of Arizona. The Supreme Court of Arizona has sustained this without waiver of jurisdiction that we could proceed in this case without waiving the jurisdiction
Charles E. Whittaker: You don't -- I don't believe you (Inaudible) may stipulate some (Inaudible) invitation of the courts judicial power shall not give the courts jurisdiction (Inaudible)
Norman M. Littell: I could say that's a procedural point and not a matter of substantive law. It's for the law of the Court in the State of Arizona. And the Supreme Court of Arizona has spoken on it and -- and said yes that our waivers of -- of the -- why counsel below would have, in this case for a minute, accepted those stipulations protected by the decrees of that Court all the way through the Supreme Court of -- of Arizona. I don't think that can be questioned here. It's a new -- it's a new issue. Respectively submitted it, Your Honor.
William J. Brennan, Jr.: Well, Mr. Littell, are you -- when you agreed that there's nothing here for the question of jurisdiction of the person, maybe I'm wrong, I had the feeling that this was a question of the jurisdiction of the state courts of this lawsuit, am I wrong about that?
Norman M. Littell: No, I -- I do if I -- if my answer to Judge -- Justice Whittaker was construed that way, I -- I quite agree for this lawsuit and it's for any similar situation.
William J. Brennan, Jr.: I mean this lawsuit which involves an Indian defendant against whom is sought to be enforced the claim arising out of a transaction on the Indian reservation.
Norman M. Littell: Precisely.
William J. Brennan, Jr.: Is that it?
Norman M. Littell: I was tempted to --
William J. Brennan, Jr.: But it's the question of the jurisdiction of the lawsuit, not of the Indian.
Norman M. Littell: That's correct. I -- I was -- well, jurisdiction of the Indian too. But I wasn't -- I would tend to put --
William J. Brennan, Jr.: But basically it's lawsuit, not personal jurisdiction you pointed.
Norman M. Littell: Quite right, quite right.
Charles E. Whittaker: Why is it the courts doesn't have jurisdiction of the lawsuit, under your view, is it not because it doesn't have jurisdiction of the person?
Norman M. Littell: You see, you're both right [Laughter].
Charles E. Whittaker: (Inaudible) to both.
Norman M. Littell: And -- and may I -- [Laughter]
Earl Warren: (Inaudible)
Norman M. Littell: And Mr. Chief Justice, may I throw myself on the mercy of the Chief Justice and have this question resolved in chamber?[Laughter]
Earl Warren: It will be.[Laughter]
Norman M. Littell: Now, very quickly because my time is going -- is almost gone. My distinguished opponent from Arizona has his shoe on the wrong foot. The power of the Federal Government is plenary, our state, not over these Indian affairs.And we so contend. Now, his attempt to -- his attempt to confine this language that the Constitution, taken over from the Enabling Act of Arizona, to effect on lands is a strange and unnatural concept which out of court with this Court's decisions. Reading from page 25, Appendix A of our brief that people inhabiting this State do agree and declare that they forever disclaim all rights entitled to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries own or held by any Indian or Indian tribes the right or title to which shall be -- shall have been acquired through or from the United States or any prior sovereignty. And that, here it is, “Until the title of such Indian or Indian tribe shall have been extinguished, the same shall be and remain subject to the disposition under the absolute disposition and control of the United States.” Now, if counsel's petition was correct, why, Section 9 of the Hopi Act which was vetoed by President Truman extending civil and criminal jurisdiction, why, Section 6 and 7 of the Act of 1953 extending jurisdiction to five States very discriminatingly, you read the Act, you'll find they eliminated two tribes. They concluded -- Congress concluded two tribes weren't ready for this. Two tribes were eliminated but otherwise for those five States, civil and criminal jurisdiction is extended, why, Section 6 or 7 inviting the State of Arizona to come in through its legislature and to its people and amend its constitution and delete this. It's an open invitation because Congress realizes that this is not a thing which can be handled by sporadic grabbing of jurisdiction as in this case because it does not carry with it this sporadic grabbing of jurisdiction and this case does not carry with it the extension of the concomitant civil services that go with civil and criminal jurisdiction. How about courts? How about the police? Over 24,000 square miles is big as all of Virginia, is big as all of New England except Maine. Do they just reach in and grab for jurisdiction when they want it?That's what counsel is contending for in the Supreme Court of Arizona.
Hugo L. Black: May I ask you a question about the tribal courts that -- of that idea -- idea?
Norman M. Littell: Your Honor, could -- could I take the extreme and on terrible liberty of adding just this to this point?
Hugo L. Black: Yes.
Norman M. Littell: He cites the Draper case.
Hugo L. Black: I'm sorry.
Norman M. Littell: He -- he cites the Draper case.
Hugo L. Black: I thought you pretty said that.
Norman M. Littell: With this point, he cites the Draper in support of this extraordinary doctrine that this doesn't apply to lands only -- it only applies to lands and not to persons. What is jurisdiction -- but over persons on the lands. What is the jurisdiction except that? The Draper case had nothing to do with that case. The Draper case was a clear holding that a murder by a white man, a non-Indian on the Indian reservation could be punished in the state courts. We admit it. We admit they can be so protected. We admit they can sue each other for other things. That's my point. It does sustain this -- this case at all. Excuse me, sir.
Hugo L. Black: I'm -- I'm sorry, I interrupt you.
Norman M. Littell: No, thank you, Your Honor.
Hugo L. Black: What I want to ask you is this. You said you'd give us a list of cases tried in the tribal courts on the basis that there is a -- a place where these rights can be enforced to this contract. Of course, that would not be true unless there was power to establish the --
Norman M. Littell: Unless there were what?
Hugo L. Black: Power to establish the tribal court. In reading the case from Arizona, the regional case, Begay, I see that they recognized tribal courts in connection with domestic relation and thought they had found a federal basis of authority on which to rest.
Norman M. Littell: They did.
Hugo L. Black: -- and -- where? That's the tribal court thought domestic relation. What -- where do you find the source of the establishment of these tribal courts which would exclude the jurisdiction of the State in these cases?
Norman M. Littell: Within the -- well, my associate suggests specific regulations. I was going to make the general answer but --
Hugo L. Black: What is the specific regulation?
Norman M. Littell: The specific regulation is -- is in the -- in 25 CFR -- the regulations based upon statute 25 CFR 11.22.
Hugo L. Black: Which one? That's not the one that says that they do business at their risk.
Norman M. Littell: No. That's the trading regulation. This is court regulation.
Hugo L. Black: Yes.
Norman M. Littell: This is in -- this is in the regulations, Your Honor, pertaining to the tribal courts and let me read the first line of it.
Hugo L. Black: Yes.
Norman M. Littell: “The Courts of the Indian Offenses shall have jurisdiction of all suits wherein the defendant is a member of tribe or tribes within their jurisdiction.”
Hugo L. Black: The courts for what? Indian offences.
Norman M. Littell: Court -- The Court of Indian Offenses, yes sir. It's -- that's a regular known name in the Bureau of Indian Affairs and there are these tribal courts all over the country. And in Indian reservations, they have these tribal courts and these are the regulations that -- that control.
Hugo L. Black: Those are the regulations that you have cited in your brief which show that they wouldn't have jurisdiction of cases like this which are authorize by regulation which themselves are authorized by Congress?
Norman M. Littell: Perhaps we should have cited. I cite it now. Here it is, that leads you to all these regulations. I don't believe we've cited the tribal court regulation because we did --
Felix Frankfurter: Would you mind giving it again?
Norman M. Littell: Yes -- yes, Your Honor, 25 CFR 11.22 jurisdiction. And there's some change in numbering from our original -- no disregard that. That will only confuse.
William J. Brennan, Jr.: Are those regulations published in the (Voice Overlap) --
Norman M. Littell: Oh, yes.
William J. Brennan, Jr.: -- that looks like that --
Norman M. Littell: This -- no.
William J. Brennan, Jr.: I know they're published but is that the way we get them and the volume something like that.
Norman M. Littell: Yes, sir. You'll find this in the -- in your own library this way. And that's an official government publication. And it has -- these have the force and effect of law as you know. I merely cited that to demolish the point that -- that --
Hugo L. Black: Is their judgment final under the -- the judgment --
Norman M. Littell: Oh, yes.
Hugo L. Black: -- Tribal Court final?
Norman M. Littell: Yes, it's a -- it's a separate -- it's a separate judicial system. I -- I can't -- except outside of the record begin to expound on it how we're trying to improve tribal courts from the Navajo Reservation but it has very mark limitations. However, I point to the fact that the traders for years had (Inaudible) to collect their debts.And their judgments are entered then the Navajos pay. It's not as precise and as formal and as satisfactorily --
William J. Brennan, Jr.: Who -- who appoints the judges?
Norman M. Littell: Sir?
William J. Brennan, Jr.: Who appoints the judges?
Norman M. Littell: The judges are now elected in the Navajo Reservation. It's different in different reservation.
William J. Brennan, Jr.: Tribal --
Norman M. Littell: And --
William J. Brennan, Jr.: -- customs are --
Norman M. Littell: They have -- that's the theory. They have the cognizance of tribal customs as they probably will amend the -- the tribal regulations to make an appointee. They have the same experience with elected judges that we've had.
Hugo L. Black: Your argument is that Congress has full power to do so --
Norman M. Littell: Completely.
Hugo L. Black: -- as fixed to these courts (Inaudible)
Norman M. Littell: Complete --
Hugo L. Black: -- purpose of having that judgment final and that chose to do business with the Indians?
Norman M. Littell: Yes.
Hugo L. Black: Have to know that?
Norman M. Littell: Yes. Among themselves and others using too.
Charles E. Whittaker: But what's the basis (Inaudible) of this regulation?
Norman M. Littell: Why, sir, the general plenary power of the -- of the Government under the Constitution over Indians. This is only one of the aspects. This scope is available to regulations and things of Indians, an exercise of the plenary power of the Constitution.
Hugo L. Black: (Inaudible) You'd have to look, would you not, even to a statute or treaty rather than the Constitution insofar as that power of the Secretary of the Interior to promulgate regulations that have the effect of law? Could you --
Norman M. Littell: They --
Hugo L. Black: -- could you just look to the Constitution and say that the Secretary of the Interior can do that without authority of Congress?
Norman M. Littell: It's -- it's -- in -- I'm sure that there is statutory authority which I can't cite at the moment behind these, Your Honor, this -- this collateral line that comes up a little unexpectedly but I have to say the answer is yes anyway because the portion affected these regulations and -- and --
Hugo L. Black: Answer is yes, what do you mean by that?
Norman M. Littell: Answer is yes that they have the power whether there's a statute behind it or not under the general delegation of the power to the -- to the Secretary to regulate Indians. But that power --
Hugo L. Black: Didn't that would be a power delegated by Congress? So that's it.
Norman M. Littell: Well, sir, I was thinking of the Constitution. But -- but I do believe that there -- there are powers. If I may just make this one more point -- I see our time is exhausted and there is no need to asking more.
Hugo L. Black: Our time is exhausted.
Norman M. Littell: I beg your pardon?
Hugo L. Black: Our time is exhausted. The Solicitor [Laughter] --
Earl Warren: You have five minutes more if you should want it up to lunch.
Hugo L. Black: Your time is not exhausted.
Norman M. Littell: I will spare the Court but only call your attention. If I'm wrong about these things, about Section 9, about 6 -- Section 6 and 7 of the Act of 1953, why did Congress also go on the admission of Alaska and extend civil and criminal jurisdiction? It's always by statute and it can't be gotten like camel get into the Arab's tent, the way they're trying to get it here.
Earl Warren: Before we recess, I see Mr. Marquis in the courtroom. Mr. Marquis, you were on the brief of the --
Roger P. Marquis: Yes
Earl Warren: -- of the Solicitor General and would you mind having the Solicitor General respond to this if, in his opinion, it -- it calls for any response? Thank you very much. We -- we'll (Inaudible).