View PDF Version

No. 05-1285

In the Supreme Court of the United States

THOMAS LEE MORRIS, A MINOR CHILD, ET AL., PETITIONERS

v.

JUDGE TANNER, JUDGE OF THE CONFEDERATED SALISH AND KOOTENAI INDIAN TRIBAL COURT FOR THE FLATHEAD RESERVATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

SUE ELLEN WOOLDRIDGE
Assistant Attorney General

WILLIAM B. LAZARUS
E. ANN PETERSON
R. JUSTIN SMITH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

The Indian Civil Rights Act of 1968, 25 U.S.C. 1301, 1302, restores to Indian Tribes their inherent power to try misdemeanor criminal offenses committed by nonmember Indians in Indian country. The questions presented are:

1. Whether those provisions of the Indian Civil Rights Act of 1968 violate equal protection.

2. Whether those provisions of the Indian Civil Rights Act of 1968 violate due process.

In the Supreme Court of the United States

No. 05-1285

THOMAS LEE MORRIS, A MINOR CHILD, ET AL.,

PETITIONERS

v.

JUDGE TANNER, JUDGE OF THE CONFEDERATED SALISH AND KOOTENAI INDIAN TRIBAL COURT FOR THE FLATHEAD RESERVATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is not published in the Federal Reporter, but is reprinted in 160 Fed. Appx. 600. The opinion of the district court (Pet. App. 5-27) is reported at 288 F. Supp. 2d 1133.

JURISDICTION

The judgment of the court of appeals (Pet. App. 4) was entered on December 22, 2005. A petition for re hearing was denied on March 22, 2006 (Pet. App. 56). On March 13, 2006, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including April 6, 2006, and the petition was filed on

that date. The jurisdiction of this Court is invoked un der 28 U.S.C. 1254(1).

STATEMENT

1. "Criminal jurisdiction over offenses committed in Indian country is governed by a complex patchwork of federal, state, and tribal law." Negonsott v. Samuels, 507 U.S. 99, 102 (1993) (internal quotation marks and citations omitted). The United States may prosecute federal crimes of nationwide applicability to the same extent in Indian country as elsewhere. The Indian Country Crimes Act, 18 U.S.C. 1152, provides that, with certain specified exceptions, federal criminal laws that apply in enclaves under exclusive federal jurisdiction also apply within Indian country. One exception is that offenses committed by one Indian against the person or property of another Indian are not subject to prosecu tion under Section 1152. The Indian Major Crimes Act, 18 U.S.C. 1153, enumerates 14 offenses that, if commit ted by an Indian in Indian country, are subject to the same laws and penalties that apply in areas of exclusive federal jurisdiction.

State authority to prosecute crimes involving Indians in Indian country is generally preempted as a matter of federal law. Negonsott, 507 U.S. at 103. States, how ever, possess jurisdiction over crimes committed by non- Indians against non-Indians in Indian country. United States v. McBratney, 104 U.S. 621 (1882). In addition, Congress has granted a number of States authority to exercise general jurisdiction over crimes committed by or against Indians in Indian country. See, e.g., Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (18 U.S.C. 1162).

Indian Tribes "possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." United States v. Wheeler, 435 U.S. 313, 323 (1978). Tribes have inherent sovereign power to prosecute their own mem bers for violations of tribal law. Id. at 326. By virtue of their dependant status, however, Tribes have been di vested of their inherent power to prosecute non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206- 212 (1978).

The Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. 1301 et seq., imposes a number of limitations on Tribes that are analogous to those that the Constitution imposes on the United States and the States. For exam ple, ICRA extends due process and equal protection rights that parallel those arising under the Constitution. 25 U.S.C. 1302(8). ICRA also affords a habeas corpus remedy in federal court. 25 U.S.C. 1303. Tribal courts have jurisdiction only over misdemeanor offenses, and are limited by ICRA to imposing punishments of up to one year in prison and a fine of $5000. 25 U.S.C. 1302(7).

For many years, tribal courts exercised criminal ju risdiction over nonmember Indians. In Duro v. Reina, 495 U.S. 676, 687-686 (1990), however, the Court held that the Tribes' dependent status had divested them of that authority. Duro created a potentially significant jurisdictional gap in law enforcement in Indian country. After Duro, unless an offense committed by a nonmem ber Indian against an Indian fell within the Indian Ma jor Crimes Act or a federal law of general applicability, the United States, States, and Tribes all lacked author ity to prosecute it. That presented a significant problem because many reservations have a large population of nonmember Indians.

In response to Duro, Congress enacted legislation that reaffirmed inherent tribal jurisdiction over non member Indians, thereby closing the jurisdictional gap that Duro had created. Act of Nov. 5, 1990, Pub. L. No. 101-511, § 8077(b), 104 Stat. 1892 (25 U.S.C. 1301(2)). The legislation amended ICRA's definition of a Tribe's "powers of self-government" to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." 25 U.S.C. 1301(2). ICRA defines "Indian" to mean any per son who would be subject to federal criminal jurisdiction as an "Indian" under 18 U.S.C. 1153. 25 U.S.C. 1301(4).

The initial legislation was effective until September 1991. § 8077(d), 104 Stat. 1893. After the legislation was enacted, Congress conducted "extensive hearings." S. Rep. No. 153, 102d Cong., 1st Sess. 12-13 (1991). As a result of those hearings, Congress made the legislation permanent. Act of Oct. 28, 1991, Pub. L. No. 102-137, § 1, 105 Stat. 646. Congress decided that permanent legislation was appropriate because nonmember Indians "own homes and property on reservations, are part of the labor force on the reservation, * * * frequently are married to tribal members," receive many tribal ser vices, and have other close ties to Tribes. S. Rep. No. 153, supra, at 7. Congress also relied on the fact that "[u]ntil the Supreme Court ruled in the case of Duro, tribal governments had been exercising criminal juris diction over all Indian people within their reservation boundaries for well over two hundred years." S. Rep. No. 168, 102d Cong., 1st Sess. 2 (1991).

In United States v. Lara, 541 U.S. 193, 200 (2004), the Court held that Congress "does possess the constitu tional power to lift the restrictions on the tribes' crimi nal jurisdiction over nonmember Indians." The Court did not decide whether tribal jurisdiction over nonmem ber Indians violates equal protection or due process. Id. at 208-209.

2. Petitioner Thomas Lee Morris is an enrolled member of the Minnesota Chippewa Tribe. Pet. App. 6. On June 13, 1999, petitioner was cited for speeding on the Flathead Indian Reservation, the home of the Con federated Salish and Kootenai Indian Tribes. Ibid. Pe titioner was ordered to appear in the Flathead Reserva tion Tribal Court. Ibid.

Petitioner filed a motion to dismiss, claiming that the tribal court lacked jurisdiction over him. Pet. App. 6. The tribal court denied the motion. Ibid. Petitioner filed an action in the United States District Court for the District of Montana against respondent Judge Tan ner, the judge in the tribal proceeding against peti tioner. Id. at 40-42. Petitioner alleged, inter alia, that the ICRA amendments that give Tribes jurisdiction over nonmembers, 25 U.S.C. 1301(2), violate due process and equal protection. Pet. App. 44-45.

The district court granted respondent Tanner's mo tion to dismiss without considering petitioner's constitu tional claims. Pet. App. 38-39. The court of appeals va cated and remanded for the district court to consider those claims. Id. at 30-37. On remand, the United States intervened to defend the constitutionality of the ICRA amendments. Id. at 8-9.

The district court then rejected petitioner's equal protection and due process claims. Pet. App. 5-27. The court held that under Morton v. Mancari, 417 U.S. 535 (1974), "Indian [status] for the purpose of federal legis lation is a political rather than racial designation," Pet. App. 19, and that the ICRA amendments are therefore subject to rational basis review. Id. at 22. The court held that the ICRA amendments satisfy the rational basis test because they eliminate a gap in the enforce ment of the laws against nonmember Indians who com mit crimes on reservations. Id. at 22-23. The court re jected petitioner's due process claim on the ground that ICRA provides due process protections and includes a habeas remedy in federal court. Id. at 23-25.

3. The court of appeals affirmed. Pet. App. 1-3. The court held that its recent decision in Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005), had rejected equal protection and due process challenges to the ICRA amendments and that it was "bound by Means to reject [petitioner's] challenges as well." Pet. App. 2-3.

In Means, the court of appeals held that when the ICRA amendments state that they apply to "all Indi ans," that means "all of Indian ancestry who are also Indians by political affiliation, not all who are racially Indians." 432 F.3d at 930. The court noted that under Mancari, such a distinction is political rather than racial and does not violate equal protection provided that it can be tied rationally to the fulfillment of Congress's unique obligations toward Indians. Id. at 932-933. The Means court held that the ICRA amendments satisfy that standard because they further the Tribes' ability to maintain order within their reservation boundaries. Id. at 933.

The Means court also relied on the holding in United States v. Antelope, 430 U.S. 641 (1977), that the applica tion of the Indian Major Crimes Act to tribal members is constitutional even when it results in less favorable treatment than that accorded to persons prosecuted un der the Assimilative Crimes Act, 18 U.S.C. 13, because the Indian Major Crimes Act applies to Indians "not as a discrete racial group, but rather, as members of quasi- sovereign political entities." Means, 432 F.3d at 934

(citing Antelope, 430 U.S. at 645 (citation omitted)). The Means court perceived "no sound distinction in principle between Antelope and this case." Ibid. The Means court added that petitioner had the option to renounce tribal membership and thereby avoid tribal jurisdiction. Ibid.

In Means, the court of appeals also held that Means' as-applied due process challenge was premature because his prosecution had been stayed. 432 F.3d at 935. The Means court held that the ICRA amendments are not facially invalid under the Due Process Clause. The court observed that (1) ICRA affords all criminal protections conferred by the Constitution except for the right to grand jury indictment and the right to appointed coun sel, (2) the right to grand jury indictment does not apply to misdemeanors, and (3) the right to appointed counsel is conferred by the Navajo Bill of Rights. Ibid.

ARGUMENT

1. Petitioner contends that the ICRA amendments violate equal protection because they subject Indians to tribal jurisdiction on the basis of race. That contention is without merit and does not warrant review.

This Court has consistently upheld against equal protection challenges Acts of Congress that treat tribally-affiliated Indians differently from other per sons. See, e.g., United States v. Antelope, 430 U.S. 641 (1977); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 479-480 (1976); Fisher v. District Court, 424 U.S. 382 (1976) (per curiam); Morton v. Mancari, 417 U.S. 535 (1974). The Court has explained that such laws are based not on "impermissible racial classifica tions," but on "the unique status of Indians as 'a sepa rate people' with their own political institutions." Ante lope, 430 U.S. at 646-647. The Constitution expressly identifies "Indian Tribes" as distinct entities, Art. I, § 8, Cl. 3, and this Court has consistently held that "the Con stitution grants Congress broad general powers to legis late in respect to Indian tribes," United States v. Lara, 541 U.S. 193, 200 (2004). Furthermore, in contrast to "immutable characteristic[s]" such as race, sex, and na tional origin that are "determined solely by the accident of birth," Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (opinion of Brennan, J.), tribal membership is voluntary, and it may be relinquished at any time. See Duro v. Reina, 495 U.S. 676, 694 (1990). Accordingly, the Court has held that laws that treat tribally-affiliated Indians differently from others withstand equal protec tion scrutiny "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Mancari, 417 U.S. at 555.

Section 1301(2), as amended after Duro, regulates the relationship among Tribes and the individual Indi ans affiliated with those Tribes. Just as Congress may, for example, define the attributes of Indians' member ship in their own Tribe to include entitlement to services provided by another Tribe on whose reservation they reside, see 25 U.S.C. 450j(h); Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120-1124 (9th Cir. 1998), cert. denied, 528 U.S. 1098 (2000), Congress may define the attributes of Indians' tribal affiliation to include submission to the criminal jurisdiction of any other Tribe whose laws they violate. Indeed, Congress has long excepted "crimes committed by one Indian against the person or property of another Indian" from the scope of general federal criminal jurisdiction in Indian country, see Act of June 30, 1834, ch. 161, § 25, 4 Stat. 733; 18 U.S.C. 1152, choosing to leave Indians "as regard[s] their own tribe, and other tribes also, to be governed by Indian usages and customs," United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846) (emphasis added).

Petitioner contends (Pet. 11) that the ICRA amend ments create a racial classification rather than a political classification because they apply to "all Indians." That contention is incorrect. The ICRA amendments define "Indian" as "any person who would be subject to the jurisdiction of the United States as an Indian under sec tion 1153, title 18." 25 U.S.C. 1301(4). In Antelope, the Court held that the term "Indian" in Section 1153 cre ates a political classification rather than a racial classifi cation. 430 U.S. at 645-647. The Court explained that the term "Indian" in Section 1153 does not refer to all persons who are racially Indians, but to enrolled mem bers of Indian Tribes and possibly to some non-enrolled Indians who live on the reservation and maintain tribal relations. Id. at 646 & n.7. The Court further explained that the criminal defendants in that case "were not sub jected to federal criminal jurisdiction because they [were] of the Indian race but because they [were] en rolled members of the Coeur d'Alene Tribe." Id. at 646.

Because the ICRA amendments incorporate the defi nition of Indian in 18 U.S.C. 1153, the analysis in Ante lope is controlling here. Like 18 U.S.C. 1153, the ICRA amendments do not apply to all persons who are racially Indians, but only to enrolled members of Indian Tribes and possibly to some non-enrolled Indians who live on the reservation and maintain tribal relations. Further more, petitioner is not subject to tribal jurisdiction be cause of his race, but because he is an enrolled member of the Minnesota Chippewa Tribe. See Pet. App. 6.

This direct relationship between Section 1301(4) and 18 U.S.C. 1153 is not a matter of mere definitional con venience. Section 1301(4) forms an essential component of the comprehensive jurisdictional regime in Indian country, and thereby closes the jurisdictional gap cre ated by Duro. Under that regime, as restored by ICRA, specified major crimes committed by one tribally-affili ated Indian against another in Indian country are sub ject to federal prosecution under 18 U.S.C. 1153, while more minor crimes are subject to prosecution by the Tribe on whose reservation the crime was committed. The power of Congress, recognized in Antelope, to pro vide protection for Indians by ensuring that violators are subject to prosecution, applies equally to the provi sion for federal prosecution under 18 U.S.C. 1153 and the provision for tribal prosecution under 25 U.S.C. 1301(4).

Petitioner's reliance (Pet. 18) on Adarand Construc tors, Inc. v. Pena, 515 U.S. 200 (1995), is misplaced. In Adarand, the Court held that all racial distinctions are subject to strict scrutiny. Id. at 227. Because the ICRA amendments create a political classification rather than a racial classification, Adarand is inapposite, and the sole equal protection question is whether the ICRA amendments are rationally tied to the fulfillment of Con gress's obligations toward Indians. See Mancari, 417 U.S. at 555.

The ICRA amendments satisfy that standard in two ways. First, Section 1301(2) advances "the congres sional policy of Indian self-government," Fisher, 424 U.S. at 390-391 (citation omitted), by enhancing the au thority of tribal laws and tribal institutions. It enables a Tribe to enforce its criminal laws not only against its own members, but also against members of other Tribes who voluntarily enter its territory. A Tribe's exercise of criminal jurisdiction over all such Indians comports with "the reality and practice of reservation life," in which "non-tribal member Indians own homes and property on reservations, are part of the labor force on the reserva tion, * * * frequently are married to tribal members," and "receive the benefits of programs and services pro vided by the tribal government" to all Indians. S. Rep. No. 168, 102d Cong., 1st Sess. 6-7 (1991).

Second, Section 1301(2) protects Indians, as well as others who reside in or visit Indian country, against law lessness by nonmember Indians. See Duro, 495 U.S. at 696. Because the United States and the States often lack jurisdiction to prosecute misdemeanor offenses committed by one Indian against another in Indian coun try, a "jurisdictional void" would otherwise exist when such offenses were committed by nonmember Indians. S. Rep. No. 168, supra, at 4. And even aside from ques tions of jurisdiction, the United States or a State might lack the resources to prosecute misdemeanors by non member Indians. Accordingly, the ICRA amendments are rationally related to the legitimate goals of advanc ing tribal self-government and protecting the safety of the reservation community, and they do not violate the Constitution's equal protection guarantee.

2. Petitioner's due process claim is equally without merit. ICRA guarantees protections to criminal defen dants in tribal court that are analogous to the protections that the Constitution guarantees criminal defendants in federal and state courts. See 25 U.S.C. 1302. Among other protections, criminal defendants in tribal court are entitled to a speedy and public trial; they must be informed of the nature of the charges against them; they have a right to confront the wit nesses against them; they have a right to compulsory process to obtain witnesses on their behalf; they have the right, at their own expense, to the assistance of counsel; and they have the right to a trial by jury for any offense punishable by imprisonment. 25 U.S.C. 1302(6) and (10). Criminal defendants also have a right to seek federal habeas corpus review to challenge detentions that are ordered by an Indian Tribe. 25 U.S.C. 1303.

ICRA does not expressly provide a right to ap pointed counsel for persons who cannot afford an attor ney. But since petitioner is charged with a traffic of fense that carries a penalty of a $100 fine, see Pet. App. 48, the right to appointed counsel is not implicated in this case. Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to appointed counsel applies when a term of im prisonment is imposed). In any event, the Confederated Salish and Kootenai Indian Tribes provide counsel to indigent defendants. See Aff. of James Taylor 1. In addition, while ICRA does not guarantee the right to an indictment by a grand jury for infamous crimes, that right is not implicated by petitioner's traffic offense. See Means v. Navajo Nation, 432 F.3d 924, 935 (9th Cir. 2005).

Petitioner complains (Pet. 13) that he will not receive a jury trial in tribal court. But the constitutional right to a jury trial does not apply to petitioner's "petty" traffic offense. Blanton v. City of N. Las Vegas, 489 U.S. 538, 543-545 (1989); Baldwin v. New York, 399 U.S. 66, 69 (1970). As noted above, in cases in which an offense is punishable by imprisonment, ICRA protects the right to a jury trial. See 25 U.S.C. 1302(10).

Petitioner asserts (Pet. 17) that there are nonmem ber Indians in tribal jail facilities who have not received the protection of the Constitution. But petitioner fails to identify the constitutional protections that such per sons have been denied. In any event, persons who are incarcerated may challenge their incarceration through federal habeas corpus review. See 25 U.S.C. 1303. Pe titioner is not subject to incarceration and lacks stand ing to raise claims on behalf of those who are.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

SUE ELLEN WOOLDRIDGE
Assistant Attorney General

WILLIAM B. LAZARUS
E. ANN PETERSON
R. JUSTIN SMITH
Attorneys

JUNE 2006