REHNQUIST, J., dissenting

437 U.S.

In my opinion, these cases are dispositive of the present one. Under them, New Jersey may require germ-infected rags or diseased meat to be disposed of as best as possible within the State, but at the same time prohibit the importation of such items for disposal at the facilities that are set up within New Jersey for disposal of such material generated within the State. The physical fact of life that New Jersey must somehow dispose of its own noxious items does not mean that it must serve as a depository for those of every other State. Similarly, New Jersey should be free under our past precedents to prohibit the importation of solid waste because of the health and safety problems that such waste poses to its citizens. The fact that New Jersey continues to, and indeed must continue to, dispose of its own solid waste does not mean that New Jersey may not prohibit the importation of even more solid waste into the State. I simply see no way to distinguish solid waste, on the record of this case, from germinfected rags, diseased meat, and other noxious items.

The Court's effort to distinguish these prior cases is unconvincing. It first asserts that the quarantine laws which have previously been upheld "banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils." Ante, at 628–629. According to the Court, the New Jersey law is distinguishable from these other laws, and invalid, because the concern of New Jersey is not with the movement of solid waste but with the present inability to safely dispose of it once it reaches its destination. But I think it far from clear that the State's law has as limited a focus as the Court imputes to it: Solid waste which is a health hazard when it reaches its destination may in all likelihood be an equally great health hazard in transit.

Even if the Court is correct in its characterization of New Jersey's concerns, I do not see why a State may ban the importation of items whose movement risks contagion, but

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REHNQUIST, J., dissenting

cannot ban the importation of items which, although they may be transported into the State without undue hazard, will then simply pile up in an ever increasing danger to the public's health and safety. The Commerce Clause was not drawn with a view to having the validity of state laws turn on such pointless distinctions.

Second, the Court implies that the challenged laws must be invalidated because New Jersey has left its landfills open to domestic waste. But, as the Court notes, ante, at 628, this Court has repeatedly upheld quarantine laws "even though they appear to single out interstate commerce for special treatment." The fact that New Jersey has left its landfill sites open for domestic waste does not, of course, mean that solid waste is not innately harmful. Nor does it mean that New Jersey prohibits importation of solid waste for reasons other than the health and safety of its population. New Jersey must out of sheer necessity treat and dispose of its solid waste in some fashion, just as it must treat New Jersey cattle suffering from hoof-and-mouth disease. It does not follow that New Jersey must, under the Commerce Clause, accept solid waste or diseased cattle from outside its borders and thereby exacerbate its problems.

The Supreme Court of New Jersey expressly found that ch. 363 was passed "to preserve the health of New Jersey residents by keeping their exposure to solid waste and landfill areas to a minimum." 68 N. J. 451, 473, 348 A. 2d 505, 516. The Court points to absolutely no evidence that would contradict this finding by the New Jersey Supreme Court. Because I find no basis for distinguishing the laws under challenge here from our past cases upholding state laws that prohibit the importation of items that could endanger the population of the State, I dissent.

Syllabus

437 U.S.

UNITED STATES v. JOHN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 77-836. Argued April 19, 1978-Decided June 23, 1978*

Lands designated as a reservation for Choctaw Indians residing in central Mississippi held, on the basis of the history of the relations between the Mississippi Choctaws and the United States, to be "Indian country," as defined in 18 U. S. C. § 1151 (1976 ed.) to include "all land within the limits of any Indian reservation under the jurisdiction of the United States Government," and as used in the Major Crimes Act, 18 U. S. C. § 1153, which makes any Indian who commits certain specified offenses “within the Indian country . . . subject to the same laws and penalties as all other persons committing [such] offenses, within the exclusive jurisdiction of the United States." Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, nor the fact that federal supervision over them has not been continuous, affects the federal power to deal with them under these statutes. Hence, the Major Crimes Act provided a proper basis for federal prosecution of a Choctaw Indian for assault with intent to kill (one of the specified offenses) occurring on such lands, and Mississippi had no power similarly to prosecute him for the same offense. Pp. 638–654.

No. 77-836, 560 F. 2d 1202, reversed and remanded; No. 77-575, 347 So. 2d 959, reversed.

BLACKMUN, J., delivered the opinion for a unanimous Court.

H. Bartow Farr III argued the cause for the United States in No. 77-836. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Raymond N. Zagone, Carl Strass, and Larry G. Gutterridge.

Richard B. Collins argued the cause for appellants in No. 77-575 and respondents in No. 77-836. With him on the briefs was Edwin R. Smith.

*Together with No. 77-575, John et al. v. Mississippi, on appeal from the Supreme Court of Mississippi.

Carl F. Andre argued the cause for appellee in No. 77-575. With him on the brief were A. F. Summer, Attorney General of Mississippi, and Catherine Walker Underwood, Special Assistant Attorney General.t

MR. JUSTICE BLACKMUN delivered the opinion of the Court. These cases present issues concerning state and federal jurisdiction over certain crimes committed on lands within the area designated as a reservation for the Choctaw Indians residing in central Mississippi. More precisely, the questions presented are whether the lands are "Indian country," as that phrase is defined in 18 U. S. C. § 1151 (1976 ed.) and as it was used in the Major Crimes Act of 1885, being § 9 of the Act of Mar. 3, 1885, 23 Stat. 385, later codified as 18 U. S. C. § 1153, and, if so, whether these federal statutes operate to preclude the exercise of state criminal jurisdiction over the offenses.

1

I

In October 1975, in the Southern District of Mississippi, Smith John was indicted by a federal grand jury for assault with intent to kill Artis Jenkins, in violation of 18 U. S. C. §§ 1153 and 113 (a). He was tried before a jury and, on

+Harry R. Sachse filed a brief for the Mississippi Band of Choctaw Indians as amicus curiae urging reversal in both cases. Arthur Lazarus, Jr., filed a brief for the Association of Indian Affairs, Inc., as amicus curiae urging reversal in No. 77-836.

1 Smith John's son, Harry Smith John, also was charged jointly with his father in the federal indictment. The United States and counsel for the Johns have advised the Court of Harry Smith John's death on February 18, 1978, and concede that as to him the case is moot. Brief for United States 3: Brief for John et al. 1. The brief for the State of Mississippi is silent as to this. We agree that both cases are moot as to Harry Smith John.

2 At the time of the alleged offense, 18 U. S. C. § 1153 read: "Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder,

Opinion of the Court

437 U.S. December 15, was convicted of the lesser included offense of simple assault. A sentence of 90 days in a local jail-type institution and a fine of $300 were imposed. On appeal, the United States Court of Appeals for the Fifth Circuit, considering the issue on its own motion, see App. to Pet. for Cert. in

manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

"As used in this section, the offenses of rape and assault with intent to commit rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offenses of rape or assault with intent to commit rape upon any female Indian within the Indian country shall be imprisoned at the discretion of the court.

"As used in this section, the offenses of burglary, assault with a dangerous weapon, assault resulting in serious bodily injury, and incest shall be defined and punished in accordance with the laws of the State in which such offense was committed."

This section has since been amended by the Indian Crimes Act of 1976, 90 Stat. 585, which added kidnaping to the list of offenses covered and made changes, not pertinent to these cases, in the ways in which state law is incorporated. Section 113, the statute specifying punishment for assaults committed within the special territorial jurisdiction of the United States, including those for which federal prosecutions are authorized by § 1153, was also amended by the same Act. See H. R. Rep. No. 94-1038 (1976); S. Rep. No. 94-620 (1976).

3 Under Keeble v. United States, 412 U. S. 205 (1973), Smith John was entitled to instructions regarding this lesser included offense. It appears, however, see Brief for John et al. 5; Brief for United States 4, and n. 6, that Smith John argued before the Court of Appeals that although he was entitled to such instructions, the District Court had no jurisdiction to enter a judgment of conviction for the lesser offense, a misdemeanor not listed in § 1153. The Court of Appeals, in deciding that the statute did not apply even to the extent urged by the United States, did not reach the issue. It has not been argued before this Court. See, however, Felicia v. United States, 495 F. 2d 353 (CA8), cert. denied, 419 U. S. 849 (1974).