Earl Warren: Number 384, Commissioner of Internal Revenue, versus Sally L. Bilder, etcetera. Mr. Pollak.
Stephen J. Pollak: Mr. Chief Justice and may it please the Court. This is an income tax case on writ of certiorari to the Third Circuit whose decision is in direct conflict with the decision of the Second Circuit in the Carasso case, now pending on certiorari. The issue is whether a taxpayer who travels to Florida for the winter months for a heart condition on the advice of his physician may deduct the rent he pays for an apartment, while there, as a medical expense under Section 213 of the 1954 Code or whether the coast of his lodgings is a personal living expense nondeductible under Section 262. The issue turns on a determination whether Congress, in passing Section 213, narrowed the scope of deductible medical expenses for it is undisputed that lodgings on travel essential to medical care were deductible under the 1939 Code. We will show that Sections 262 and 213 leave lodgings as a nondeductible personal living expense, that they narrowed the scope of the previous provisions in the 1939 Code, that the regulations of the Internal Revenue Commissioner had been consistent in the interpretation of the statute to provide for nondeductibility and that the legislative history reads precisely on the issue presented here and calls for nondeductibility. The facts are simple and not in dispute. The petitioner was 43 years of age in 1953 and engaged in the practice of law in Newark, New Jersey. He had had four heart attacks since 1945 and was medically classified as a hyperkinetic individual. His physician, an eminent heart specialist, advised that he spend the deep winter months in a warm climate and, on this advice, he took his wife and child to Fort Lauderdale, Florida for the winters of 1954 and 1955, returning each spring to rej -- resume the practice of law. He went to Fort Lauderdale as there was a physician there qualified to administer a particular anticoagulant drug that he required. He also went to -- rented an apartment in Fort Lauderdale near a hospital, one of several hospitals there that were qualified to supervise his taking of this drug. In his tax returns for 1954 and 1955, he took the rent he paid for the apartment -- the rent he paid for the apartment in which he and his family lived during the periods as a deduction from ordinary income. There is no dispute that he was in Florida as a matter of medical necessity. There's no suggestion that he was there on vacation. Thus, the question presented is one of law, whether Congress in the Internal Revenue Code of 1954 afforded a deduction for the rental expense on travel for medical purpose. The pertinent --
Potter Stewart: -- don't question out the deductibility of the travel expenses, of the transportation expenses.
Stephen J. Pollak: There is no question of the deductibility of the transportation expense --
Potter Stewart: Right.
Stephen J. Pollak: No. The -- this --
Potter Stewart: And there's also -- well, I've interrupted you, there's no question here as to the apportionment of the rent. That's not in this case that's now presented.
Stephen J. Pollak: There is also no question of the apportionment of rent. It's a pure question --
Potter Stewart: Surely, the --
Stephen J. Pollak: -- whether the rent is deductible. The pertinent statutes in the 1954 Code are Sections 262 and 213. Section 262 sets the framework providing that personal living expenses are not deductible unless expressly provided in the Code. Section 213, in turn, is the expressed provision for deduction, stating that expenses for medical care shall be allowed as a deduction. It defines medical care in subsections (a) and (b) as amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease or (b) for transportation primarily for and essential to medical care. We believe that these sections on their face suggest a disposition of the issue. Lodgings are admittedly a personal living expense. There is no expressed provision allowing for their deduction in Section 213. In fact, the expressed allowance of transportation expenses suggests that the similar expenses on travel, of lodgings and meals, or similar personal living expenses, are not deductible. The regulations of the Commissioner, since 1954, read directly on the point and provide that the cost of meals and lodgings while away from home receiving medical treatment are not allowed as a deduction. The taxpayer relies on the 1939 Code provision attempting to read and express allowance for deduction of rent into the 1954 Code. He argues that lodgings were deductible under the 1939 Code definition of medical care, that the -- there was no change in this definition of medical care in the 1954 Code and that Congress, by its adoption of the provisions without change, intended to continue the prior interpretation or at least to prove them. The taxpayer is right in his first contention that rent payments were deductible under the 1939 Code. There's no dispute on that. He is only partially right in suggesting that Congress adopted the provision, the definition of medical care in the 1939 Code. It adopted the provisions but added significantly to that and its addition, we believe, is conclusive here for it provided explicitly in the 1954 Code a provision which was not in the earlier Code that transportation expenses are not deductible. The -- this provision, we believe, is conclusive for -- in changing the provision of the law, Congress, we believe, made an allowance for transportation explicit and, thereby, excluded the meals and lodgings which had previously been allowed. This, we believe, reasonable explanation is confirmed precisely by the legislative history.
John M. Harlan II: Was there no comparable provision than the 1939 Code with Section 262 of the -- of the --
Stephen J. Pollak: The provision which is similar to Section 262 was Section 24 (a) (1) which provided that no deduction shall be allowed for personal living or family expenses except for extraordinary medical expenses as defined in Section 23 (x), which was the medical deduction section, Justice Harlan.
John M. Harlan II: Thank you.
Stephen J. Pollak: The taxpayer, we believe, has no reasonable explanation for the change in the 1954 Code.He asserts that Congress wanted to be positive that transportation expenses would be deductible, although also intending to permit meals and lodgings. It was well-settled. There'd been no dispute for a decade that transportation, meals, and lodgings were deductible under the 1939 Code, thereby, Congress had to take no action but to incorporate the words of the 1939 Code had it wished merely to continue transportation, meals, and lodgings. It did not do so. It added an expressed provision for transportation thereby, we believe, excluding meals and lodgings. The taxpayer's argument that it did not have that intention requires a review of the legislative history, and it is here clear beyond really any doubt that this was the intent of Congress. In proposing the bill, the 19 -- that became the 1954 Code, President Eisenhower recommended liberalizing -- two liberalizing steps for medical deductions, that the ceiling be doubled so that each family could take $10,000 of medical deductions whereas, before, it had been limited to $5,000. He recommended a second liberalizing step that the threshold exclusion be reduced from 5% to 3%, but then he stated that, and i'm quoting, “however, to avoid abuse in medical deductions, I recommend that the definition of medical expenses be tightened to exclude certain indirect travel expenses.” All the evidence, and I stress the word “all” is that the tightened that the President spoke of was to be in meals and lodgings. There is no other explanation of where the definition was to be tightened if it was not to exclude those items. The committee reports, in turn, are even more conclusive if possible for this is one of those rare cases, I believe, where the issue here, minus respondent's name of course, was posed and disposed of right in the congressional reports of both the Senate and the House. After stating this in the reports that subsection (b), that is the section added to provided transportation expense deduction, subsection (b) specifically excludes the deduction of any meals or lodgings while away from home receiving medical care. After stating that in the reports, the reports pose this example and I will quote it it's quite brief. “If a doctor prescribes that a patient go to Florida in order to alleviate specific chronic illness, to escape climatic conditions which have proved injurious to the health of the taxpayer, the cost of the taxpayer's transportation to Florida would be deductible but not his living expenses while there. In the Court of Appeals for the Third Circuit, Judge Hastie, referring to this history, stated that the majority decision was extraordinary, in that it held that a recent enactment of Congress meant just the opposite of what the reports and other evidence indicated was the congressional intent. The taxpayer, in his brief, in this Court attempts to create a mountain of ambiguity surrounding this issue. We respectfully believe that not even a mouse comes forth. In conclusion, the respondent complains in the wrong form for Congress allowed a deduction as a matter of legislative grace of certain medical expenses, certain personal living expenses which qualified as medical expenses. The taxpayer has a sympathetic claim and complains or suggests that line drawing is the difficult issue.
Potter Stewart: The what, line drawing?
Stephen J. Pollak: That line drawing is the difficult issue presented by the claim. We believe that, here, the court cannot be asked to draw a line which Congress drew and which places the taxpayer's claim on the nondeductible side. I'll reserve my remaining time.
Earl Warren: You may. Mr. Cohen.
Martin D. Cohen: May it please the Court. My time will be devoted to two efforts. First, the Government has made certain arguments, the better ones of which deserve to be answered and they shall be answered. And, secondly, we, in our brief, raise certain issues which directly invited response from the Government. I shall state what these points were and leave it to this Court to determine whether the Government has responded with respect to each such point in a manner which satisfies the minds of fair and logical men. Firstly, the Government relies upon the asserted significance of Section 262 of the 1954 Code. If I may restate the theory of the Government, it is that Section 262 says that no deduction shall be allowed for personal family or living expenses except as otherwise provided in the income tax provisions of the Code.
John M. Harlan II: Expressly provided.
Martin D. Cohen: Expressly, as you say Your Honor.
John M. Harlan II: Yes.
Martin D. Cohen: The Government then goes on from there to say where in the Code is there any expressed provision for lodging in a case such as this.
Earl Warren: Does it say in the Code or in the Chapter?
Martin D. Cohen: It says in the Chapter, but I think it refers to the income tax provisions of the Code.
Earl Warren: Yes.
Martin D. Cohen: -- Code.
Earl Warren: Yes.
Martin D. Cohen: Our answer to this contention is that the Commissioner of Internal Revenue service himself, has undermined that argument by providing in rulings and regulations which he has promulgated that at least four situations he will in fact allow lodging expense and, indeed, food, despite the absence of an expressed provision in the Chapter, referred to in 262. The first situation, of course, is that of a hospital bill which includes board and lodging. By regulation, the Commissioner says, this, he will allow, although nowhere in the Code is there any expressed provision for board and lodging as part of a hospital bill. However, the Commissioner goes a step further. He says it is not necessary that the board and lodging expense be incurred in a hospital. It is sufficient if incurred in an institution similar in nature to a hospital where the primary purpose for the taxpayer's presence there is the receipt of care which will alleviate a physical or mental condition. Then, the Commissioner goes, what I believe is, still a step further. He says, if an individual is in a school, a special school, the purpose of which is to overcome a physical or mental handicap on the part of that individual, the Commissioner will then allow food, lodging, and the cost of tuition for the presence in that special school and there is no limitation as to time. Presumably, an individual that have such a defect can remain in the school for many years and, each year, the food and the lodging and the tuition will be deductible by the Commissioner's interpretation and, again, in the complete absence of any expressed authority for such an allowance in the Internal Revenue Code. And, finally, there is another example of what I regard to be the Commissioner's inconsistency and that is in an unrelated but very analogous situation. I have reference to the case of the man who is devoting his time to a particular charity which would be the type of charity that would be regarded as a tax-exempt organization. The Commissioner has ruled, and we cite it in our brief, that where such an individual goes to a convention or a similar type of function on behalf of the charity, that he may deduct a reasonable amount for food and lodging while he is on such a trip. And, again, there is no expressed authority anywhere in the Code for such an interpretation. Now, the second point which the Government makes, which I believe deserves answer, is the point why would Congress have added subparagraph (b) to the previous definition of medical care, unless Congress had in mind the expressed exclusion of food and lodging expenses? We say, first, that if that had been the intent of Congress, Congress could certainly had easily so stated in the Code itself. It did not do so. Secondly, we feel that there is a much less strained explanation for the addition of subparagraph (b), and that is contained in Revenue Ruling 55-251 which is cited in our brief. Now, although that revenue ruling attempts to codify the various types of medical deductions which will be allowed under the 1939 Code, it was, curiously enough, issued in 1955 after the 1954 Code had been enacted. Now, example 3 in that revenue ruling says this. As the heading trans --
John M. Harlan II: What page is this please?
Martin D. Cohen: It would be, if the Court please, in the cumulative bulletin.
John M. Harlan II: You haven't got it --
Martin D. Cohen: I just took some inserts for convenience, but the revenue ruling is cited in our brief. It's Revenue Ruling 55-251 and it's divided I think into 13 subparagraphs, taking the different types of medical expense which will or will not be allowed according to the revenue ruling. Now, example 3 has a heading “transportation expense of a physically disabled person to and from his place of employment.” In this case, taxicab fares were paid by a physically handicapped victim of polio in commuting to and from his place of employment. The expense of such transportation is a personal expense not deductible for federal income tax purposes. The rationale, I assume, being that the transportation was not to receive medical care but simply to get to work. On the other hand, in example 8 of the same ruling, again under the heading “transportation expense,” it says transportation expense to a doctor's office says -- Section 39.23 (x)-1 (d) (1) of Regulations 118 provides the travel primarily for and essential to the rendition of medical services is an allowable medical deduction. Transportation expenses as, for example, taxicab fares paid for and properly substantiated as being primarily for the rendition of medical services constitutes an allowable medical deduction. So, you see, the Commissioner --
Potter Stewart: But that's covered by the statute, isn't it?
Martin D. Cohen: This is under the 1939 Code, Your Honor.
Potter Stewart: I beg your pardon.
Martin D. Cohen: And that had not been expressly covered.
Potter Stewart: I beg your pardon.
Martin D. Cohen: So, I say that the Commissioner, himself, has furnished the answer to his own question, what would be the purpose for the addition of this subparagraph (b), and I say it is to clarify the difference between transportation of a physically handicapped person who is not, however, using the transportation to receive medical care and the transportation expense of one who is using the transportation in order to obtain medical care and I feel that is a far less strained interpreta -- explanation of the addition of subparagraph (b) than the one from which the Government contends. Now, the third point which the Government makes, and the one I think that is the real problem in this case, is the committee report, an excerpt of which was read by Mr. Pollak. My response to this is that, assuming that Congress intended that what it stated in that committee report be the law and if we can sanction legislation by committee report rather than by statute, nevertheless, the facts in that example are not our facts. If you'll recall that the simple statement was it was a patient, suffering from a chronic ailment, who goes to a warmer climate to alleviate the condition. We have here, as my adversary so fairly stated, a man who after four heart attacks at the age of 42, was told by his doctor “You have either got to leave the blustery winds and cold temperatures of New Jersey during the winter months and also take this anticoagulant drug that it have prescribed for you or, surely, you are going to die.” Now, there are two ways that you can avoid the in temp-- the inclement climate of Jersey. One would be to be hospitalized. The other would be to go to a climate where you will not be subjected to these intemperate winds and cold temperatures. “Now, in your case,” the doctor told Mr. Bilder, and this is all in the record, “I advise against hospitalization. You are a hypertense, over energetic person and if we close you or shut you up in a hospital for three months, the walls are going to start closing in on you and it's going to have the effect of perhaps producing another myocardial infarction. Statistics demonstrate that a person of your temperament, if closed in, and who has a past history of heart attacks and myocardial infarctions is likely to have further ones. And, in addition to that, when you rec -- when you had suffered these myocardial infarctions, your coronary arteries were permanently damaged. Now, true, nature supplies new vessels to take over the function to bring blood to and from the heart, but nature needs an assist in the form of modern exercise and, this, you cannot get in the hospital. So, in your case, I recommend as the best means of preserving your life that you go to a place where you can get this modern exercise and, at the same time, receive this anticoagulant therapy and, most importantly, have available a doctor and a testing laboratory which is familiar with the peculiar properties of this drug,” because in 1953 there were very few such in the country. Fort Lauderdale, as the Tax Court found, happen to be one of them. So, we have the anomaly of this taxpayer, had he not obeyed his doctor's advice, had he nevertheless said “well, put me in a hospital. It's closer to home and I want to be in touch with the office every day,” had he disobeyed his doctor, he could have gotten his deduction for food and lodging. However, while obeying what his doctor, one of the most eminent heart men in the world told him to do, he is now confronted with the almost incredible situation of having the Government say “we can't allow you to a deduction if you obey your doctor, only, in your case if you had disobeyed him.”
Felix Frankfurter: Your argument is very appealing but it does presuppose that the tax laws of particular allowances is a very logical system, doesn't it?
Martin D. Cohen: I wouldn't want to undertake to get into that one, Mr. Justice Frankfurter. Finally, I think an argument made by the Government which must be answered is a suggestion that the broad interpretation of Section 23 (x) of the 1939 Code had led to widespread abuse. Now, in our brief, in an appendix, we attempted to list all those cases which our research discovery which under the 1939 Code or under any Code, had dealt with the question of the allowability of this type of expense as a medical deduction. And, we point out that the Government and the courts were most deciduous in seeing that there was no abuse of this statute which was to be broadly interpreted because I think only 5 of the 40 cases was of full deduction allowed and perhaps in some nine others was a partial deduction allowed. In all other 26 cases, there was a complete disallowance of the expense because the taxpayer had failed to satisfy the court that the primary purpose for the expense in question was the receipt of medical care. So, we would sug -- I would respectfully suggest that this case be decided not on possible abuse, which I don't think will occur, but on the correct law to be applied here, and I trust that this Court will decide this case directly and I further trust that the Commissioner will use his discretion in determining the wheat -- separating the wheat from the chaff in subsequent cases as he has in the past. Now, if I may, I should like to turn to those points that we have made which I do not feel the Government has responded to. First, I raise the -- we raise the question how can lodging expense be allowed in situations which the regulations permit and not in a case such as this or not in the case such as that of Mr. Carasso who had -- who went to the Second Circuit but lost. And, if I may very briefly restate the facts in the Carasso case, this was a man of modest means who was employed as a traveling salesman. While he was in New England, in connection with his duties as such salesman, he was stricken with a serious illness which required the major portion of his stomach be removed by surgery. And, after two or three weeks of being in the hospital, when he had lost 50 pounds of weight, that required some-23 quarts of blood and informed transfusions, he was released from the hospital but he was too weak to travel back to his home in Brooklyn, New York, so he arranged to stay for a time with some friends nearby the hospital. And finally, he made the trip back to Brooklyn. It was in March of the year and he was getting no better. So, his doctor said to him “If you wish to have a healthy con -- a convalescence which will enable you to regain your vigor, I suggest that you get out of Brooklyn in this month of March, go to some place that will give you a little opportunity to take your wife's arm and walk and gradually build your strength back,” and this man did that. He went to Bermuda for nine days in the company of his wife whom the Tax Court found served the function of a nurse while there and that he could not in fact have travelled without her. And, the Tax Court further found that there's no question that a man of this modest means would not have taken that trip had it not been for the doctor's advice. The question we'd like to put to the -- and, before I ask the question, in our brief on pages 25 and 26, we pose two hypothetical cases which we feel, if the Government's contention were upheld here, would produce very inequitable and even absurd results. And, it's quite sufficient for the purposes of this Court those cases on page 25 and 26 of our brief be regarded as hypothetical cases. The fact of the matter is that these facts were brought to my attention in a letter from a lawyer named Sherman R. Burnet of Winnetka, Illinois and he, himself, was the one whose situation was described in our first hypothetical set of facts. And, the second set of facts relates to an acquaintance that he met while at Madison, Wisconsin at the hospital there. As I say, I'm satisfied that the Court regard these are hypothetical situations, but I add this to show you that the possibility of these things occurring is not so remote because, in fact, this is how I came to possession of the facts. So that, if the Government by -- as the Commissioner has provided by his regulation, is going to remit, let us say, an individual who is an athlete and, perhaps, is having trouble with his knee to go to a hospital and to remain there for observation and diagnosis and perhaps nothing will be done about it, and he may deduct his food and lodging for as many times as he may go for this purpose or if they will allow a boy who has some psychological difficulties to go to a special place where, for perhaps many years, an effort was made to straighten him out, whether successfully or not successfully, and he may deduct his food and his lodging and his tuition there. How can the Commissioner, in fairness, say that a man like Mr. Carasso or a man like Mr. Bilder or either of the two individuals whose cases are posed in the hypotheticals, that they may not get a deduction for that which they -- for that expense which they never would have incurred but for the existence of a serious physical condition and their obedience to the advice of a competent doctor. The next point which we feel has not been answered at all, either in the Government's brief or here in the oral argument, is the matter of whether or not Section 213 was intended to be a relief statute so that deduction should be allowed at the very least in the cases of those whose hardship situation is due to medical expense would otherwise find no relief. Now, point three of -- point four, I believe, of our brief goes into some detail of this and I will not attempt now to restate all that, but I do think that this should be brought to the Court's attention. Our research discovered that there were perhaps some 100 odd cases decided by lower courts and courts of intermediate appellate jurisdiction involving the medical deduction. This is the first case involving any question coming under the medical expense provision to reach this Court. I think that the medical deduction is one which, perhaps, affects more taxpayers than any other provision in the Internal Revenue Code, more individual taxpayers and I think that taxpayers and tax administrators, alike, will look to this Court for guidance in the future as to whether this section should be regarded as a remedial provision of the law which is to be liberally construed in favor of those for whose benefit it was intended or whether, as the Commissioner has stated, is to be strictly construed against the taxpayer who is claiming a medical expense. Much of the legislature -- legislative histories or, I should say, such of the legislative history as it is available indicates only that this was intended to be a remedial statue which was to be liberally construed, and even the statement of Mr. Fulsome, which is cited in the Government's brief, indicates that that is so, with respect to the 1954 Code. And, finally, we have raised this point. In the Tax Court, it will be recalled, the Government was contesting both Mr. Bilder's right to the deduction for transportation and his deduction for the lodging. Following the decision of the Tax Court, the Commissioner acquiesced in that part of the Tax Court's opinion which said that Mr. Bilder should be allowed a deduction for his transportation. Now, in the Lester case, recently decided by this Court, and a previous case, Olympic Radio and Television, I believe the name was, it was pointed out that every statute should be given as much internal symmetry and consistency as is possible. We say that if you disallow the lodging to Mr. Bilder in this case, this statute lack such internal symmetry and consistency because if he is entitled to deduct his transportation, as the Tax Court found and as the Commissioner has now acquiesced, he must have taken that transportation, by the very language of the statute, in -- because -- as a primary and essential means of receiving medical care described in subparagraph (a). And, yet, the Commissioner says that Mr. Bilder didn't receive any medical care under subparagraph (a). If this is so, it makes -- it makes a completely asymmetrical piece of work out of this section of the Code. For these reasons and perhaps, more particularly for those more fully set forth in our brief, we respectfully pray that the --
John M. Harlan II: If this man had gone into a hospital down in Florida, instead of a boarding house, would he get the deduction?
Martin D. Cohen: I think, Your Honor, before I can answer that question I would have to know on what basis the doctor suggested that he take that course of --
John M. Harlan II: Suppose the doctor said “I want you to be where you can press a button and have medical advice, a moment's notice, and if you can't get lodgings either close enough to this kind of service, then you better go into a hospital.”
Martin D. Cohen: I would say that if a taxpayer receives such advice from the doctor in good faith on both sides, on the doctor's side, on the taxpayer's side --
John M. Harlan II: There's no question of good faith involved in --
Martin D. Cohen: No.
John M. Harlan II: -- (Inaudible) record.
Martin D. Cohen: I would say that, then, he must -- he must having incurred that expense because of obedience to a doctor's advice, be permitted the deduction. I'm simply going to say that we feel that our position requires that the judgment alo -- below be affirmed.
Earl Warren: Mr. Pollak.
William J. Brennan, Jr.: Mr. Pollak, how would you answer Mr. Justice Harlan's hypothetical?
Stephen J. Pollak: I would state that if the taxpayer's medical advice was that he repaired a hospital in Florida, his meals and lodgings provided as part of the hospital bill will be deductible. That's stated in the congressional reports and it is part of the Commissioner's regulations.
John M. Harlan II: It's hard for me to make any sense by distinction between the two cases. I'm not saying that it makes -- Congress can do whatever it wants to do and it's still obvious that it still doesn't make much sense.
Stephen J. Pollak: Well, Congress has indicated the lines that it's drawn and that those -- it is that line which we're standing on in this Court.
John M. Harlan II: Well, I think you're entitled to it and I think you'd better walk that rope just as straight as you can.
William J. Brennan, Jr.: Mr. Pollak, suppose this varies from Mr. Justice Harlan's hypothetical, I gather from what Mr. Cohen has told us that not too many hospitals or something akin to a hospital the same rules apply.
Stephen J. Pollak: The --
William J. Brennan, Jr.: Suppose that, if that's so, suppose this was some kind of a convalescent home in Florida rather than a hospital to which the doctor sent him.
Stephen J. Pollak: Well, Mr. Cohen's hypotheticals pose the question that there are always some problems that are close to the line. It has been drawn by Congress. We are not in Court requesting this Court to draw a line. The issue here, we suggest, is not close to any line.
William J. Brennan, Jr.: I understand your position. But I'm --
Stephen J. Pollak: Yes.
William J. Brennan, Jr.: -- I'm just interested what would happen if, rather than to a hospital, the doctor told him to go to a convalescent home and he did.
Stephen J. Pollak: The -- might I rely on the regulations which state the Commissioner's position. The extent to which expenses for care in an institution other than a hospital shall constitute medical care is primarily a question of fact which depends upon the condition of the individual and the nature of the services he receives rather than the nature of the institution. A private establishment which is regularly engaged in providing the types of care of services outlined in the subdivision will then allow the deduction of the bill provided by that institution. And then, this -- this regulation endeavors, I'm sure after a great deal of thought and care to spell out a line which, of course, is not an issue by the particular rental of the apartment Mr. Bilder rented in this case.
William J. Brennan, Jr.: Well, I suppose it might be the condition that the doctor was satisfied required the climate of Florida but, also, the condition was such that he had to be right nearby some care, not necessarily a hospital care, but that kind of a professional care that a convalescent home or otherwise might provide.
Stephen J. Pollak: And, he would then be in a home for medical care?
William J. Brennan, Jr.: Yes.
Stephen J. Pollak: In that home.
William J. Brennan, Jr.: In that sense.
Stephen J. Pollak: Well, I believe if he is in an institution and, therefore, the medical care which he receives is institution bill, be it including lodgings and food is deductible.
John M. Harlan II: Of course Blue Cross draws this kind of distinction, too, doesn't it? If you're in a hospital, you get your Blue Cross and if you're told by the doctor to go off in convalescent bar in Atlantic City, you don't get it.
Stephen J. Pollak: I accept your characterization --
John M. Harlan II: Well, I'm just saying --
Stephen J. Pollak: -- of Blue Cross (Inaudible) insured me. I'm sorry, I don't know.
John M. Harlan II: You never had to use it.
Stephen J. Pollak: And, I haven't been so I can't tell whether they draw the same line. I wanted to address myself only to one of the points that Mr. Cohen has raised. The statement was made as to whether this provision of the Code is a remedial provision and that this Court will lay down guidelines to which all practitioners will look. I don't believe that the case raises that issue and that the question of whether this is to receive a liberal construction is raised for it has been clear from the history of the medical deduction provision that it was enacted to liberalize the treatment of taxpayers who suffered severe medical expenses. The question this morning -- this afternoon is only whether the action taken in 1954 which was characterized by President Eisenhower as the tightening of the definition of medical expenses to preclude abuse is to receive a construction which is directly opposite to what the committee reports and what the reasonable interpretation would be.
John M. Harlan II: So that -- so far the Eisenhower statement is in your brief?
Stephen J. Pollak: It is -- it is not in our brief. It is -- I found it upon preparing for argument.
John M. Harlan II: But what's -- where can you find it?
Stephen J. Pollak: It is at 1 U.S.C. Congressional and Administrative News 1565.
John M. Harlan II: Thank you.
Stephen J. Pollak: It's the budget message of January 21, 1954.
Earl Warren: Very well.


Warren E. Burger: We'll resume argument in Morton against Ruiz. Mr. Sachse I think you have the lectern on the close last night.
Harry R. Sachse: Mr. Chief Justice and may it please the Court. When we closed yesterday, I was about to say that I thought the Snyder Act when well summed up by Mr. Wolf who at earlier stage was a counsel in this case, which he described the Act in Law Review article this way. He said the Snyder Act is familiar in somewhat distressing occurrence in the history of Indian affairs. As in other instances, Congress enacted a very general measure and left the rest up to the Secretary of the Interior and the BIA. I think that is what the Snyder Act did do, except I would have one other thing. It also left the rest up to future Congresses in their appropriations procedures. Now, in all recent years including the appropriations for fiscal year 1968, which are at issue here, the Secretary of the Interior has submitted to the Congress request for funds or welfare program for Indians in this language. General assistance will be provided to needy Indians on reservations who are not eligible for public assistance under the Social Security Act. Each year Congress has published that language in its reports in favor of the bill.
Byron R. White: Mr. Sachse what -- what is the Government's response to the claims that the Secretary really does provide welfare for a lot of the non-reservation Indians?
Harry R. Sachse: Well --
Byron R. White: In Oklahoma and Alaska?
Harry R. Sachse: I think there are two problems there. One is Oklahoma and Alaska. I think it is just simply correct that this statement that has been made to the Congress is a compact and too abbreviated statement. It refer to be absolutely accurate. It should say for Indians on reservations and in the jurisdiction of the Bureau of Indian Affairs in Oklahoma and Alaska.
Byron R. White: Well, why are the -- why do you provide welfare for non-reservation Indians in Oklahoma?
Harry R. Sachse: Well, in Oklahoma the reason is following. That the whole section of the State of Oklahoma was once Indian territory and was totally occupied with Indian reservations. Well, the second part of this what I am getting at. The reservations have been abolished. The tribal organizations have not been abolished. The Indians there live on trust property and with a good deal of property still managed by the Bureau of Indian Affairs such as in the Mason case that we had last year and the Bureau's interpretation of that has been that the lands that it administers in Oklahoma are equivalent to --
Byron R. White: Well, what about the Indians, I call attention to another example, the Turtle Mountain Reservation in North Dakota. Those Indians can live anywhere they want to and still get the welfare, that's what the--
Harry R. Sachse: The Bureau of Indian Affairs has also made this interpretation of the statute that where there Indians living on trust land that's administered by the agency near a reservation, they simply treat that as if it were on the reservation. In other words, they haven't been as rigid in saying that if your off reservation, there is absolutely nothing as one might hope for a mechanical application of the law. What they have said is in the Turtle Mountain incidence -- they've simply equated administratively people living on trust land, allotted land.
Byron R. White: Is that what those Rapid City Indians do?
Harry R. Sachse: I don't think that's trust land and --
Byron R. White: Well, no, but it is said here in the brief that Indians residing in Rapid City South, Dakota get to the welfare to some extent, and they are not even close to a reservation?
Harry R. Sachse: I am not aware of them getting welfare under this program and I should mention that there is another program that does quite openly and under congressional authorization provide welfare for off-reservation Indians, that is what is generally called the relocation program. If an Indian lives on a reservation or near a reservation, and he cannot get a job and he wants to go somewhere else to look for a job, the Bureau will try to find him a job and will provide him general assistance for several years when he first begins to work.
Byron R. White: You are suggesting that Bureau doesn’t give welfare to any Oklahoma or Alaska Indians except those who are living on trust property?
Harry R. Sachse: No, I don't want to go that far. I think --
Byron R. White: Let's think you were then and that you are saying that you are giving welfare to Indians who are still members of an established tribal organization?
Harry R. Sachse: I don't think that, that's the distinction either because I am not at all sure that Mr. Ruiz is not a member of the --
Byron R. White: Of course, he is.
Harry R. Sachse: The tribal organization.
Byron R. White: He probably is.
Harry R. Sachse: I think what -- what the Bureau has done and I think with the knowledge and consent of Congress each year in making these appropriations is to treat Alaska and Oklahoma in a separate category and it maybe that at various times and various other places, they violated their own regulations and given welfare to people off-reservations. In particular instance, I don't think so --
William J. Brennan, Jr.: What's the most of benefit when he said "on or near" that seems to be his definition?
Harry R. Sachse: Well --
William J. Brennan, Jr.: These are “"on or near" reservations” and I thought a lot a modern service bureau, serving as many as 400,000 Indians in Alaska, natives who live "on or near" reservations, people will find themselves isolated from the mainstream of the American lives?
Harry R. Sachse: If you describe the activities of the Bureau of Indian Affairs as whole it clearly is not limited to on reservation Indians and that "on or near" would be more accurate, but it does things for Indians who are near a reservation also.
William J. Brennan, Jr.: Well, these are -- these particular Indians in this case are near, aren't they?
Harry R. Sachse: There are near a reservation. What I am saying is that in the Health Program that quite openly is for Indians who live "on or near" reservations. In this work relocation program, it's for the benefit of Indians who live "on or near" reservations, but it's actually put into effect even quite distant from a reservation, in some city where there maybe employment. So I am not arguing that the Bureau of Indian Affairs is precluded or doesn’t, in fact, give assistance to Indians off-reservations. What I am saying is that in their general welfare program, this general assistance program that year after year they have asked Congress for money for this program, for activities on reservation, maybe they should have described it a little broader and that they are all -- that Congress has appropriated with that in mind and has appropriated sums of money that only fit for that definition.
Warren E. Burger: Well, are you saying that the Department of the Interior may do this on a discretionary basis from time-to-time but that the Ninth Circuit Court of Appeals has no such a discretion, that the essence of -- the Ninth Circuit has no -- no authority to say that this extends to all the Indians off reservations?
Harry R. Sachse: I think what's really happening is I think -- I think you have to isolate the Alaska and Oklahoma situation as special situations, but then apart from that I think that the Bureau of Indian Affairs will try to make as broad a definition of on reservation as they can, and that where there has been trust land involved in a few instances, and I know this is so, people of Bureau of Indian Affairs told me so just last week and so that they have in some instances have given welfare to people who live on trust land, near the reservations in situations where the reservation was too small for the allotments to have been made on the reservation, and the Government found land for people off-reservation. But they have not extended that to people who do not live on trust land and thus are not under the direct supervision of the Bureau in that respect.
William H. Rehnquist: You draw a line that the Bureau has generally between Indians on trust lands and Indians on allotted lands?
Harry R. Sachse: Well, when I say trust land, I am not drawing a distinction between that and alloted land. I mean, land in which the Federal Government is still the trustee, whether it's because the Indian had an allotment and doesn’t yet own the land and fee or for any other reason. Now I think it is clear that Congress has not appropriated money for its broader program as the petitioners ask. I want to point out also that even the and I mean respondent asks for, I want to point out also that even the respondents say that they don't suggest that the program should be made available to Indians throughout the United States. That at page 23 of their Brief they say we have never argued that the Government is required to provide the subsistence benefits to the fully assimilated Indian residing in Manhattan. So if you don't use the boundary, the line that the Congress and the Bureau has set up, some other line has to be ticked and I don't think that the line “on or near” reservations is going to get any more satisfactory judicial answer to this question than the line that has been drawn now on reservations in these two special instances of Alaska and Oklahoma. Now, I want to say a word that Bureau of Indian Affairs (Inaudible) on this. I would feel easier with this case if the Bureau of Indian Affairs had published its manual in the Federal Registers because I think what they have done -- I don't think they had a duty to have rule making public notice in open hearings because this is for benefits and so forth and there have been cases that it tell it's not necessary there. But I think to have these be real legislative rules, that they would have had they been published in the Federal Register. What the BIA Actually did is publish in the Federal Register a notice that it has in this manual and it's available to the public at the Washington Office and at the Regional offices of the BIA which is something like a substantial compliance, but I don't say that it really is compliance with that statute. So we are left with the rules simply as interpretations of the acts of Congress and I think they are correct interpretations in the sense that this is all that the Bureau asked for money for and this is all that the appropriations gave the money for. So when the Bureau's regulations say this for welfare of Indians on reservations and in Alaska and Oklahoma, I think it's just same with the Congressional acts have be read to say anyway. But the Court disagrees on that, I think that these Congressional acts are so vague and that the discretion left to the Bureau is so large, both in the Snyder Act and then other legislation and then the general language of the Appropriation Act which is just general appropriation, that the Bureau does have rule making authority here, and that if it did go through the process of publishing these rules, it would be based with the problem then whether that made the same program valid.
Byron R. White: Was there -- is there any other if there are any challenge to rule about the difference between reservations and non-reservation Indians in this context on any ground other than the statutory ground that's just isn't consistent with the same?
Harry R. Sachse: I think that's the only challenge.
Byron R. White: Oh! Is that? What's the statutes -- that there was no other one presented below?
William J. Brennan, Jr.: They make a constitutional challenge in that?
Harry R. Sachse: They will make constitutional challenge to the -- to the --
William J. Brennan, Jr.: That was made for us?
Harry R. Sachse: Yes, the constitutional challenge was made.
William J. Brennan, Jr.: The right to travel --
Byron R. White: And that is here, that is here?
Harry R. Sachse: I think that's before the Court. If the Court agrees with this that what the Secretory has done here is in accord with the Congressional legislation or with it as legitimately interpreted --
Byron R. White: We don't have to reach that?
Harry R. Sachse: Then I think you have to reach the constitutional --
Byron R. White: Well, what does the Government say is the purpose of that regulation, just to save money or --?
Harry R. Sachse: No, we say that the purpose of the regulation is to -- is so that in the areas where there is Indian Government or the most direct federal supervision, that the Federal Government does supply the kind of welfare program that could be supplied on a county basis within a state, but if where people move out of those areas and into the state in general, a decision has been made that at least as far as welfare goes, they should be equated with the other people in the state and have whatever benefit is there.
Byron R. White: But not BIA money?
Harry R. Sachse: Not BIA money off the reservations or these particular areas. I think it's a decision. I don't think it's just an economy measure, but I think it is a decision to use available funds in the core area, as federal responsibility.
Byron R. White: Does the Government deny that it has an impact whether on movement?
Harry R. Sachse: Yes, we do deny that it has an impact on movement of any legal significance. We -- our view is this. If you want to accept that the reservation or that this situation in Alaska or Oklahoma is legitimate jurisdictional kind of distinction to make then the fact that if someone leaves the jurisdiction, he gives up certain welfare benefits is not an interference with his right of travel anymore than leaving one County and going to another is if one county has a broader welfare program than another. On non-general assistance, the welfare programs often breakdown to county by county. I think what it is, the Government is seeing a serious problem of unemployment on reservations where it has the greatest responsibility, if the Government reacting properly to that problem, setting up a program, but if the Government simply not setting up program that goes beyond the heart area of its responsibility. Now, I think it might have been a wise decision for Bureau Of Indian Affairs to have a broader program. I don't argue for the merits of their decision to try to limit this program or there have been Acts passed -- Acts presented to Congress, it would have provided some broader programs and the Bureau has not supported them and Congress has not passed. I don't speak to the merits of that. I do simply say that I think constitutionally, this is within the area of cases such as Dandridge that there is no invidious discrimination here, that the difference is based on an essential jurisdictional difference and whatever the wisdom of the decision that Congress and the BIA have made, it's legitimately their decision to make. I would like to reserve the 30 seconds for rebuttal.
Warren E. Burger: Very well. Mr. Woods.
Winton D. Woods, Jr.: Mr. Chief Justice, members of the Court. My name is Winton Woods, counsel for the respondents in this case. I would, at the outset, like to clear up what seem to me yesterday to be apparent misunderstanding about our basic position in this case. First I think we need to be very clear about what it is that we are talking about when we talk about general assistance sponsored by the Bureau Of Indian Affairs. It is in fact a supplemental program that is available only to needy Indians who do not qualify for one of the categorical programs under the Social Security Act. Those programs are generally run by the states. The GA program is run by the BIA for the benefit of Indians who Congress has determined by virtue of their very special status in American life, are worthy of some special consideration. With that in mind I think, we are talking in this case not about discrimination between Indians and non-Indians, but about discrimination between differing groups of Indians, between those Indians who do receive the BIA general assistance and those who do not receive BIA general assistance. Now, the Government has sought to characterize the holding of the Court below in the very broadest possible manner. In fact, we think that the holding of the Court was quite narrow. If I might quote, the Court Of Appeals held, we hold that under the circumstances of this case, it was improper for the Bureau to deny General Assistance on the basis of residency alone. Now there are two elements to that holding that I think need to be noted if the opinion of the Court below is to be properly understood. First, the special circumstances that exist in this case and secondly, the very narrow automatic basis of the administrative decision to deny welfare. The respondents here, plaintiffs below, are full-blooded Papago Indians who are members their tribe. They are un-assimilated. They speak primarily the Papago language. They reside in a Papago community, 15 miles from their reservation. They are in every respect as the Stucki affidavit which is in the Appendix of Pages 84 and 87 demonstrate, Papago Indians. Moreover, they reside within the historic boundaries of their aboriginal land, land that the Indian Claims Commission has recently found was illegally taken from them. And finally, there is no question on the record after the fair hearing in this case, that they are needy Indians within the intent of the Congressional legislation that's at issue here. Against that factual background, then the Bureau of Indian Affairs automatically determined that the respondents were not entitled to general assistance, solely on the basis of the fact of their residency, 15 miles from the reservation boundary. The result of that interpretation which in fact is not unusual is severe discrimination. First, as Mr. Justice Blackmun pointed out yesterday, a Papago miner who happened to live on the western edge of the reservation and thus was able to commute to the mines at Ajo would be entitled to general assistance if he needed it, while persons in the situation of the Ruizs, who come from South Komelik in the far southern part of the reservation, near the Mexican border, and thus who are unable to commute are forced to move into Indian village in Ajo in order to work if they are to find work. As we pointed out in our brief, there is very little work available on the Papago reservation. What can be found, generally has found in the bordering communities. Secondly, and the Court has discussed this at some length with Mr. Sachse, there are some non-reservation Indians who receive general assistance benefits, regardless of the fact that they do not reside on the reservation, and we think that they are indistinguishable from the respondents in this case. The Government has suggested that there is some difference based upon the jurisdiction over the reservation, and yet the Government has admitted in their brief and in the petition for certiorari, that jurisdiction exists in this case, that the Bureau in fact has jurisdiction to extent benefits to these people. I think that we cannot assume on the basis of the legislative history that exists in this case that Congress intended that these strange and unusual results would come about when they approved this program. We believe that the results violate congressional intent and that they also violate the Fifth Amendment. Our basic case then is this. We believe that when Congress directed the Secretary of the Interior, through the Snyder Act to expend such moneys as they would appropriate in the future for the care and benefit of the Indians throughout the United States, and when they later in 1968, which is the Act in issue in this case, appropriated money pursuant to that mandate, that the plain language of those statutes does not allow the automatic or conclusive presumption, if you will, of non-eligibility that is based solely upon the place of residence. Now that's not to say that we believe that the statute mandates the payment of general assistance benefits to Indians throughout the United States, no matter where they may be found, no matter what their percentage of blood may be, no matter what their degree of assimilation may be. We believe that the Secretary can and should protrude -- pursuant to the congressional mandate, create a carefully drawn regulation that draws the very line of Mr. Sachse was talking about, and that line can be drawn by focusing upon the worthy Indian both in the Snyder Act and in the Appropriations Act. A statute that defines or a regulation that defines who is an Indian, for purposes of those statutes might very well meet every conceivable objection that the Government has to our case. For example, the Bureau of Indian Affairs might conclude that an Indian -- well, that in defining an Indian, that they would look to things such as the degree of assimilation into the dominant culture, that they would look to such things as degree of blood.
Warren E. Burger: As series of factors that you have just mentioned, Mr. Woods, sounds strikingly like the range of criteria that are used in exercising discretion administratively?
Winton D. Woods, Jr.: Your Honor, I agree, and they are also the range of factors that have been adopted by the Public Health Service to determine their jurisdiction. If I might speak to the point more directly.
Warren E. Burger: I think you are at least close to the Dandridge holding of the Court?
Winton D. Woods, Jr.: Your Honor, I think that this case is quite distinguishable from the Dandridge case. The Government consistently has suggested, that this is a Dandridge problem. I read Dandridge, at least to say that this Court will not second-guess legislative judgments, a relative need between competing classes of welfare recipients. I don't believe that that's this case. If we are to analogize this case to Dandridge versus Williams or Jefferson versus Hackney, I think we could hypothesize a situation, in which the State of Maryland which has jurisdiction over the entire state, chose to extend AFDC benefits only to mothers who live in Baltimore County. As you well remember from the facts that case, there was a discrimination in Dandridge between Baltimore County and the rest of the state and to the extent that families in Baltimore County received slightly more money. I suspect that this case -- that this Court, apart from the Social Security Act issue, on constitutional grounds would have seen that case quite differently had Maryland said, we are only going to expend money for mothers in Baltimore County, without any factual showing, without any determination that that was a rational choice.
William H. Rehnquist: You don't object to this issue I take it, unless we disagree with the Ninth Circuit as to their interpretation of the congressional Act?
Winton D. Woods, Jr.: That's perfectly correct Mr. Justice Rehnquist. We believe that the case can be decided on narrow, statutory grounds on the basis of the obviously unclear legislative history, the somewhat unclear language of the two statutes and by application of the standard of construction, that this Court has applied since the time with Mr. Chief Justice Marshall, and has most recently applied last year in the McClanahan case.
William H. Rehnquist: But if the legislative history is unclear and the statute is unclear, doesn’t that give you a fairly strong case for following the administrative construction?
Winton D. Woods, Jr.: Your Honor, it does and it doesn’t. As a general proposition, it's quite clear that it does, and if this where an ordinary case, I would not be standing here, making the arguments that I am. The fact is that, the Government over the course of years has told the Congress that it is expending money for the benefit of Indians who live “on or near” reservations. Now, there have been times, when various Senators, particularly Senator Bible in a colloquy this Court at length and the Court of Appeals spending attempted to find out, just exactly what the Bureau meant when it said “on or near.” The bureau has never adequately described to Congress, what the “on or near” language meant. More over, they suggested the existence of this regulation should under the standard rule be taken to be an expression of congressional intent as Congress has not overridden it in anyway through the statue. I would agree again with that as a general proposition, but the fact of this case is, that pursuant to the policies established by the Bureau of Indian Affairs manual itself, that regulation is not for public consumption. It is a regulation designed for internal administration. Those regulations that are designed to inform the public and presumably the Congress, are not contained in the Bureau of Indian Affairs manual alone, but they are put in CFR, and through the Federal Register. This regulation is hidden away in a manual that is used by the Bureau of Indian Affairs in handling its internal programs, and we simply don't believe that the standard, and I believe appropriate rule in regard to long-standing administrative regulations is applicable in this case. Secondly, the Government points to the fact, that the appropriations request itself has always contained the limitation. We would suggest that the fact that Congress chose not to include the requested limitation in its appropriation is equal in argument for our side. We might well assume, particularly following the Squire versus Capoeman standard of liberal construction for statute regarding Indian Affairs, we might very well assume that the failure of Congress to enact a regulation requested by the Bureau, is in fact a recognition of Congress' intent to not limit the program to the degree that the Bureau sought to do so.
Warren E. Burger: Well, doesn’t the long history of the actual application of that provision have some significance?
Winton D. Woods, Jr.: Indeed it does, Your Honor, and again I believe that the actual application of that provision, I assume that you are talking about the Bureau of Indian Affairs' Manual regulations. The Court of Appeals found and we think that there is substantial support for that finding that over the course of years, the Bureau has administered their program in a very sloppy way. That they have in fact extended benefits to Indians who do not reside on reservations even outside of Alaska and Oklahoma. It has never been quite clear even in the legislative history which is cited in our brief just how far the Bureau has gone to extend benefits to near reservations Indians. The Court of Appeals found, however, and we think found correctly that they have done so. So that the in fact practice over the course of years differs greatly from the specific language of the regulation and we believe that it's appropriate for this Court not to look only or to look not only at the specific language of the regulation, but to look at -- look as well to the practice of the Bureau under that regulation.
William J. Brennan, Jr.: It's definitely. Do you read the Court of Appeals as having adopted the “on or near” limitation?
Winton D. Woods, Jr.: Your Honor, I believe that the Court of Appeals adopted precisely the suggestion that I am offering to this Court, it is the suggestion that I offered to them and that is that it's not the position of the Court of Appeals or of the District Court or of this Court to draft the regulation for Bureau of Indian Affairs. We have asked for a writ of mandamus directing them to draft a regulation in light of their experience and knowledge. They are the agency supposedly with the expertise in the area. We suggest that they be directed to draft a regulation that incorporates functional standards describing who is an Indian to avoid the discriminations which we see in the program as is presently right.
William J. Brennan, Jr.: Well I had reference to it -- this is rather board language in the opinion on page 21 of the petition. It said in light of it before going, we conclude that Congress intended general assistance benefits to be available to all Indians, including those in the position of appellates at the time that Snyder Act is passed. That seems rather boarder than an “on or near” limitation, does it?
Winton D. Woods, Jr.: It is Your Honor. It's clearly broader and the question is --
William J. Brennan, Jr.: You are not defending that though --
Winton D. Woods, Jr.: Well let me say this. I would defend that with the understanding that the word Indian is subject to limiting construction. I would not assert that the Bureau must pay general assistance benefits to a Manhattan stock broker who happens to be 164th Papago.
William J. Brennan, Jr.: Well, suppose he was Papago?
Thurgood Marshall: What would you do with this Squaxin Indian that -- it's one of the highest labor prices in the world building those skyscrapers in New York, full-blooded?
Winton D. Woods, Jr.: Your Honor, I say the outset (Voice Overlap)
Thurgood Marshall: I understood in your brief that you were cutting back little earlier. You say it did not apply to places like that I thought?
Winton D. Woods, Jr.: I can make a few suggestions I would not purport to stand in front of this Court and draft a regulation without any real expertise in the area of Indian Affairs. I would suggest in regard to that specific question that the Bureau of --
Thurgood Marshall: You do say all Indians in any circumstances?
Winton D. Woods, Jr.: Depending on how you define Indian, Your Honor. You might define --
Thurgood Marshall: What about Chief Judge Barefoot at the Court of Criminal Appeals Oklahoma with the full shot go in there?
Winton D. Woods, Jr.: I think he is clearly a fully assimilated Indian and that is precisely the kind of Indian that we think Congress did not intend to (Voice Overlap) I do not --
Thurgood Marshall: So to all Indians.
Winton D. Woods, Jr.: This is a very difficult point and it has bothered, it bothered to Judge Wolf in the District Court --
Thurgood Marshall: Reservation Indians and -- there all Indians, aren't they?
Winton D. Woods, Jr.: They are all Indians and all them -- all I am suggesting is that for the purposes of the Snyder Act and the Appropriations Act that the Bureau may adopt a narrower definition of the Indian. It may say that Indian for this purpose means and an assimilated Indian of certain degree of blood who and indeed residence maybe a relevant consideration. We don't -- we don't deny that residence is one factor that the bureau may consider in using Mr. Justice Marshall's hypothetical, the Indian who resides in New York might because of one of that fact and some other facts --
Thurgood Marshall: Not be an Indian?
Winton D. Woods, Jr.: Not be an Indian for the purposes of the program, not for all purposes, but simply for the purposes of the program that Congress has created through the Snyder Act and the Appropriations Act.
William H. Rehnquist: Mr. Woods, you said you brought an action for mandamus, this isn't the mandamus action, is it?
Winton D. Woods, Jr.: This was originally an action for a writ of mandamus in the District Court. It was the -- the complaint was on Cross motions for summary judgment. A judgment was entered for the defendants. Case was appealed to the Court of Appeals and Court of Appeals found in favor respondents and Government appealed to this Court.
William H. Rehnquist: So this was a -- in its form a mandamus action when you brought before judge Wolf?
Winton D. Woods, Jr.: It was an action of in the nature of mandamus pursuant to 1361 as well as an action for a declaratory judgment. We believe that if the Court disagrees with our position, regarding the legislative history that there are then three constitutional issues that it must confront. Two of those we have dealt with to some extend already. First is the discrimination between some non-reservation Indians and other non-reservation Indians. The Government has gone to great lengths to attempt to find a rational basis for that discrimination. But we simply say that we do not believe that there is a rational basis that's evident in the record. Perhaps more importantly, however, there is a discrimination between reservation Indians and non-reservation Indians. I would refer the Court to the affidavit of Mr. Elly Sam which is in the Appendix at pages 89 and 90 and was part, an exhibit in support of our motion for summary judgment. Mr. Sam is vice chairman of Papago Tribe and he described the situation that occurred when the Government came in and built a dam in the Northern part of the reservation, called Painted Rock Dam. A village that was on the dam location, the dam site, had to be removed. The Government built a new village in the town of Hillaback which is directly adjacent to the reservation. They purchased the land and treated it as if they were on the reservation. However, some 19 families who had lived on the land where the old village was were not included in the new community that was build by the Bureau of Indian Affairs. They had to go some place and by the nature of the Papago community, they did not feel free to move to far parts of the reservation. They wanted to maintain their kingship ties with their village and so they moved then to Hillaback. The situation now as described by vice chairman Sam is that those 19 families are denied general assistance benefits, even though they reside perhaps a few feet from the reservation boundary and they reside there by virtue of the action of the Government. While other Indians who have been moved into the new community built by the BIA are given general assistance and new houses and all of the other things that the Government can do for the Indians. We suggest that discriminations of that kind, discrimination such as the one suggested by Mr. Justice Blackmun yesterday between the miner who lives on the western edge of the reservation and commutes to Ajo some 12 miles or and the Indians who lives in the Indian village that those discriminations between certain kinds of reservation Indians and certain kinds of non-reservation Indians are simply indefensible. We can find no rational basis to support that classification.
William J. Brennan, Jr.: This is the argument I gather Mr. Woods is directed to the particular facts of this case, in terms of the location of these two Indian groups, not to some general proposition that somewhere in another states, off reservation Indians are given general assistance benefits?
Winton D. Woods, Jr.: Your Honor, it is directed to the both points. I am talking now about the precise facts of this case because I understand them more clearly. The other situations that we have cited in our brief come from statements of Bureau of Indian Affairs officials to various appropriations Committees and Congress over the course of years and they have describe, this rather is a fuzzy way in which they about administering their program. I can't --
William J. Brennan, Jr.: I am addressing of course to your constitutional argument?
Winton D. Woods, Jr.: Right and we suggest that the discrimination created on the reservation in Arizona as well as those situations described in the brief in Alaska and Oklahoma, Rapid City, Turtle Mountain apparently in Reno, we know of there may very well be other situations which we are unaware. The point is that there are some reservation Indians or non-reservation Indians who are indistinguishable, indistinguishable from their brothers who reside a few miles away on the reservation who are denied general assistance benefits while the class of people from whom they cannot be distinguished are granted general assistance benefits.
Potter Stewart: Well, they are distinguishable on the basis of their residence and that's what this case is about?
Winton D. Woods, Jr.: That is precisely what it's about Your Honor --
Potter Stewart: And that is a distinction?
Winton D. Woods, Jr.: That is a distinction, but we would suggest that that distinction, there is no rational relationship to the purpose of the legislation which is to help needy Indians, as --
Potter Stewart: A different argument that they argue cannot fairly say that they are absolutely indistinguishable because the distinction is their place of residence and that's what the -- that's the distinction made in that case?
Winton D. Woods, Jr.: That's absolutely right, Your Honor. Finally, if the Court concludes that the traditional equal protection argument and the legislative history nonetheless requiring to uphold the Bureau of Indian Affairs regulation an issue in this case, we believe that the appropriate standard for judging the constitutionality of the action of the Bureau and of the Secretary of the Interior, is the strict scrutiny test adopted by this Court in Shapiro versus Tompkins.
William J. Brennan, Jr.: Which have also I think just suggested that even under the rationality test (Voice Overlap)
Winton D. Woods, Jr.: That's right, Your Honor. We have three grounds upon which we think this is improper. We think it violates the intend of Congress. We think it violates traditional equal protection and we think it infringes upon the right of an Indian to travel throughout and just don't like aboriginal land. The facts of this case I would remind the Court are that the land upon which the respondents live, is land that was illegally taken from the Papago Tribe as found by the Indian Claims Commission. They reside within their historic aboriginal land and they have exercised their right and I have to admit that it is not a right that this Court has established, but I think that any fair reading of the right to travel cases, must conclude that an Indian has a right to travel particularly throughout his historic land. As we pointed out in our brief in the -- in our added statement, the statement made by the Government, there is very little work available on the reservation and thus travel around the reservation and to off-reservation communities becomes a matter of necessity of one is to work. If Mr. Ruiz wanted to work in the mines, he had to move to Ajo and to live in Indian village since commuting from his village in the the southern part of the reservation was impossible. He could have moved back, he could have moved back to the reservation as evidently many miners did, as Professor Stucki discovered during his study, but he wanted to keep his daughter in school in Ajo, so that she would have a better chance than he had and he did so. Thus he was penalized by the Bureau for having exercised the fundamental right by having gone to Ajo a few miles from his reservation to find work. Moreover, the regulation acts as an inducement for him to come back to the regulation and there evidently are a number of cases described not only in the various Committee hearings, but in the affidavits in this case, in which Indians have returned to the reservation.
Warren E. Burger: Wouldn't that have been true in the Dandridge case of her recipient living in Baltimore had moved over to the eastern shore or some place?
Winton D. Woods, Jr.: I am not sure I understand your question.
Warren E. Burger: You are saying that by moving, you are talking about the right to travel, but that right was also involved in Dandridge, wasn't that?
Winton D. Woods, Jr.: You mean if they had moved out of Maryland --
Warren E. Burger: No.
Winton D. Woods, Jr.: -- that they have moved to some other state. I quite agree and I think again this is a different case. We are not suggesting and the Government is not suggesting that the Bureau of Indian Affairs' jurisdiction is limited to a single state. They have traveled throughout the area under the jurisdiction of the Governmental agency that creates the welfare program i.e. the United States Government. We think that that is a distinguishable case from the person who moves say from Maryland to Virginia and then seeks benefits from the state of Maryland because they are higher than Virginia. We wouldn't argue for that proposition. We argue only for the proposition that a person who travels within the appropriate Governmental jurisdiction has got a right to not be discriminated against because they have exercised that right of movement. I understand that perhaps later today, and at least by tomorrow, another Arizona case dealing with right to some extent, to the right intrastate travel will be before this Court and I think to some extent that is relevant to the right to travel argument that we are raising here.
William H. Rehnquist: The BIA jurisdiction I take at extends throughout the 50 states, so that what you are contending for is, is a right to travel because of the Indians' relationship to the BIA, anywhere in the 50 states different from that of an ordinary citizen?
Winton D. Woods, Jr.: No, we don't suggest that it is any different from the right of an ordinary citizen.
William H. Rehnquist: Then why does it depend on BIA jurisdiction?
Winton D. Woods, Jr.: Simply because the question raised by Mr. Chief Justice Burger, creates the situation in which a welfare recipient moves from one jurisdiction, one relevant Governmental jurisdiction into another from jurisdiction A which was previously paying welfare assistance to her to jurisdiction B.
William H. Rehnquist: Well, I understood his question to you to be about someone who moved from Baltimore County to the eastern shore of Maryland, both within Maryland and I think in Dandridge we sustained a differential between Baltimore County and other parts of Maryland?
Winton D. Woods, Jr.: That's right, Your Honor. You did sustain, I think without a great deal of discussion the differential between Baltimore County and the rest of the state --
Potter Stewart: It wasn’t at issue in Dandridge, there was an issue --
Winton D. Woods, Jr.: I take it, it was not an issue and moreover this is not the Dandridge case. There isn't a differential here. This is not a case where the Bureau of Indian Affairs has weighed competing needs among classes of people. It is a case where the Bureau automatically without any factual basis has concluded that off-reservations Indians were not within the recipient population created by Congress i.e. needy un-assimilated Indians. And we think that's very different from the previous decisions of this Court, quite properly I believe upholding the right of a state legislature to make judgments about competing needs among competing classes of recipients. We think it's a quite different matter to say that these people are not to be included at all. They are not even to be given a shot at dividing up that limited pie. My time is up. Thank you very much.
Warren E. Burger: Thank you Mr. Woods. Mr. Sachse do you have anything further?
Harry R. Sachse: I don't have any.
Warren E. Burger: Thank You gentlemen. The case is submitted.