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The State argues, however, that the Federal Government has no power to produce this result. It suggests that since 1830 the Choctaws residing in Mississippi have become fully assimilated into the political and social life of the State, and that the Federal Government long ago abandoned its supervisory authority over these Indians. Because of this abandonment, and the long lapse in the federal recognition of a tribal organization in Mississippi, the power given Congress "[t]o regulate Commerce ... with the Indian Tribes," Const. Art. I, § 8, cl. 3, cannot provide a basis for federal jurisdiction. To recognize the Choctaws in Mississippi as Indians over whom special federal power may be exercised would be anomalous and arbitrary.'

We assume for purposes of argument, as does the United States, that there have been times when Mississippi's jurisdiction over the Choctaws and their lands went unchallenged. But, particularly in view of the elaborate history, recounted above, of relations between the Mississippi Choctaws and the United States, we do not agree that Congress and the Execu

28

State or not" jurisdiction over the listed crimes when committed by an Indian. rd., at 2385. The provision was then amended to read "all such Indians committing any of the above crimes . . . within the boundaries of any State of the United States, and within the limits of any Indian reservation," and was agreed to with this change.

28 Mississippi has made no effort, either in this Court or in the courts below, to support this argument with evidence of the assimilation of the Choctaw Indians in Mississippi, or with a demonstration of the services provided for them. There is evidence that some educational services bave been provided by the State. See J. Peterson, The Mississippi Band of Choctaw Indians: Their Recent History and Current Social Relations 84, and passim (Ph. D. dissertation, University of Georgia 1970); J. Jennings, V. Beggs, & A. Caldwell, A Study of the Social and Economic Condition of the Choctaw Indians in Mississippi in Relation to the Educational Program 4 (Bureau of Indian Affairs 1945); T. Taylor, The States and Their Indian Citizens 177 (1972). But the provision of state services to Indians would not prove that the Federal Government had relinquished its ability to provide for these Indians under its Article I power.

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tive Branch have less power to deal with the affairs of the Mississippi Choctaws than with the affairs of other Indian groups. Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not been continuous, destroys the federal power to deal with them. United States v. Wright, 53 F. 2d 300 (CA4 1931), cert. denied, 285 U. S. 539 (1932).24

The State also argues that the Federal Government may not deal specially with the Indians within the State's boundaries because to do so would be inconsistent with the Treaty at Dancing Rabbit Creek. This argument may seem to be & cruel joke to those familiar with the history of the execution of that treaty, and of the treaties that renegotiated claims arising from it. See supra, at 640-643. And even if that treaty were the only source regarding the status of these Indians in federal law, we see nothing in it inconsistent with the continued federal supervision of them under the Commerce Clause. It is true that this treaty anticipated that each of those electing to remain in Mississippi would become "a citizen of the States,” but the extension of citizenship status to Indans does not, in itself, end the powers given Congress to

24 We need not be concerned, as Mississippi hints, that the assumption of federal criminal jurisdiction over the Choctaw Indians in Mississippi, if not historically anomalous, is inconsistent with the intent of Congress. In the early 1950's, when federal Indian policy again emphasized assimilation, a thorough survey was made of all the then recognized tribes and their economic and social conditions. These efforts led to a congressional resolution calling for the freedom of certain tribes from federal supervision "at the earliest possible time," 67 Stat. B 132 (1953), conferring on certain designated States jurisdiction with respect to criminal offenses and civil causes committed or arising on Indian reservations, and granting federal consent to the assertion of state jurisdiction by other States. Id., at 588–590. The Mississippi Band of Choctaw Indians was among those for whom the Bureau of Indian Affairs recommended continued supervision. See H. R. Rep. No. 2680, 83d Cong., 2d Sess., 31–32, and passim (1954). See also H. R. Rep. No. 2503, 82d Cong., 2d Sess., 313 (1953).

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deal with them. See United States v. Celestine, 215 U. S. 278 (1909).

V We therefore hold that $ 1153 provides a proper basis for federal prosecution of the offense involved here, and that Mississippi has no power similarly to prosecute Smith John for that same offense. Accordingly, the judgment of the Supreme Court of Mississippi in No. 77–575 is reversed; further, the judgment of the United States Court of Appeals for the Fifth Circuit in No. 77–836 is reversed, and that case is remanded for further proceedings consistent with this opinion.

It is 80 ordered.

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Syllabus

WILL, U. S. DISTRICT JUDGE v. CALVERT FIRE

INSURANCE CO. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

No. 77-693. Argued April 19, 1978-Decided June 23, 1978

After Calvert Fire Insurance Co. (hereafter respondent) had advised

American Mutual Reinsurance Co. (American) that respondent was rescinding its membership in a reinsurance pool that American operated, American sued respondent in an Illinois state court for a declaration that the pool agreement with respondent remained in effect. Six months later, respondent in its answer asserted the unenforceability of the pool agreement on the grounds that American had violated, inter alia, the Securities Act of 1933; Rule 106-5, promulgated under the Securities Exchange Act of 1934 (hereafter 1934 Act); and the Illinois Securities Act, and counterclaimed for damages on all its defense claims except the one involving Rule 106-5, which under the 1934 Act's terms was exclusively enforceable in the federal courts. Respondent on the same day filed a complaint against American in the Federal District Court for damages for American's alleged Rule 106-5 violation, and joined therewith claims based on each of the other defensive counts made in the state-court action. American moved to dismiss or abate the federal-court action, the motion to dismiss being based on the contention that the reinsurance agreement was not a "security” within the meaning of the 1933 or 1934 Act, and the motion to abate being on the ground that the earlier state proceeding included all issues except the one involving Rule 100–5. Petitioner, the District Court Judge, granted American's motion to defer the federal proceeding until completion of the state proceeding, except the Rule 106-5 damages claim. He rejected respondent's contention that the District Court should proceed with the entire case because of its exclusive jurisdiction over that claim, and noted that the state court was bound to provide the equitable relief sought by respondent by recognizing a valid Rule 10b-5 claim as a defense to the state action. Petitioner heard argument on, but has not yet decided, the question of whether respondent's interest in the reinsurance pool constituted a "security” as defined in the 1934 Act. After petitioner had rejected motions to reconsider his stay order and refused to certify an interlocutory appeal, respondent petitioned the Court of Appeals for a writ of mandamus directing petitioner to adjudicate

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the Rule 106-5 claim. Thereafter that court, relying on Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, granted the petition and directed petitioner to "proceed immediately with Calvert's claim for damages and equitable relief" under the 1934 Act.

Held: The judgment is reversed. Pp. 661-667; 667–668. 560 F. 2d 792, reversed.

MR. JUSTICE REHNQUIST, joined by MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE STEVENS, concluded:

Issuance of the writ of mandamus by the Court of Appeals impermissibly interfered with petitioner's discretion to control his docket. Pp. 661-667.

(a) Though a court of appeals has the power to issue a writ of mandamus directing a district court to proceed to judgment in a pending case when it is the district court's duty to do so, the burden is on the moving party to show that its right to issuance of the writ is "clear and indisputable." P. 662.

(b) Where there is duplicative litigation in the state and federal courts, the decision whether or not to defer to the state courts is largely committed to the discretion of the district court, Brillhart v. Excess Ins. Co., 316 U. S. 491, 494, even when matters of federal law are involved, Colorado River, supra, at 820. Pp. 662-664.

(c) This case, unlike Colorado River, did not involve outright dismissal of the action, and respondent remained free to urge petitioner to reconsider his decision to defer based on new information as to the progress of the state case; to that extent deferral (contrary to respondent's argument) was not equivalent to dismissal. Pp. 664-665.

(d) Though a district court's exercise of discretion may be subject to review in a proper interlocutory appeal, it ought not be overridden by a writ of mandamus. Where a matter is committed to a district court's discretion, it cannot be said that a litigant's right to a particular

"clear and indisputable.” Here petitioner has not heedlessly refused to adjudicate the Rule 106-5 damages claim (the only issue that may not concurrently be resolved by both the state and federal courts), and as far as the record shows his delay in adjudicating that claim is simply the product of a district court's normal excessive workload, compounded by “the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, 332 U. S. 258, 260. Pp. 665-667.

MR. JUSTICE BLACKMUN, who is of the view that Brillhart v. Excess Ins. Co., 316 U. S. 491, a diversity case, has no application to this federal-issue case, concluded that the issuance of mandamus in this case

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