U.S. v. Antelope, s. 74-2741

• Citation: 523 F.2d 400
• Decision Date: 04 September 1975
• Docket Number: Nos. 74-2741,74-2742,s. 74-2741
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gabriel Francis ANTELOPE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leonard Francis DAVISON and William Andrew Davison, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 400

523 F.2d 400

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel Francis ANTELOPE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Leonard Francis DAVISON and William Andrew Davison,

Defendants-Appellants.

Nos. 74-2741, 74-2742.

United States Court of Appeals Ninth Circuit.

Sept. 4, 1975.

Allen V. Bowles (argued), Moscow, Idaho, for Antelope.

Mikel H. Williams, Asst. U. S. Atty. (argued), Boise, Idaho, for plaintiff-appellee.

John W. Walker (argued), Moscow, Idaho, for Davisons.

OPINION

Before KILKENNY, CHOY and GOODWIN, Circuit Judges.

KILKENNY, Circuit Judge:

Appellants, all enrolled members of the Coeur d'Alene Indian tribe, appeal their convictions, after a jury trial, of murder in violation of the Major Crimes Act, 18 U.S.C. § 1153, as defined in 18 U.S.C. § 1111.

FACTS AND PROCEEDINGS BELOW

Count I of the indictment charges appellants Antelope and Leonard Davison with the felonious entry of the home of a non-Indian woman, situated within the confines of the Coeur d'Alene Indian Reservation (Indian country) in Idaho, with the intent to commit robbery in violation of 18 U.S.C. § 1153. Count II of the indictment charges the same appellants with robbery of a purse containing money from the woman within the confines of the same reservation, all in violation of 18 U.S.C. §§ 1153 and 2111. Count III of the indictment charges appellants Antelope, Leonard Davison and William Davison, along with non-appellant Seyler, with killing the woman in the perpetration of the robbery alleged in Count II, unlawfully and wilfully and with malice aforethought by beating her, a non-Indian, with their fists and feet, within the exterior boundaries of the aforementioned Indian Reservation, all in violation of 18 U.S.C. §§ 1153 and 1111.

Appellants entered pleas of not guilty. Seyler was granted immunity and testified at trial as a government witness. The jury found Antelope and Leonard Davison guilty on all three counts, including first degree murder on Count III. William Davison was convicted solely of the lesser included offense of second degree murder on Count III.

ISSUE

Appellants' common contention is that the murder provision of 18 U.S.C. § 1153 is unconstitutional as applied to them. They argue that it operated to deprive them of equal protection and due process under the Fifth Amendment through an invidious racially-based discrimination unjustified by a proper governmental objective.

THE STATUTORY FRAMEWORK

Murders committed within "Indian country" fit into and are prosecuted under one of four categories:

(1) The crime of killing an Indian by an Indian is governed by the Major Crimes Act, 18 U.S.C. § 1153. ¹ Murder under that section is defined in 18 U.S.C. § 1111, ² which includes a version of the traditional felony murder definition.

(2) The crime of killing of an Indian by a non-Indian is governed by the Federal Enclave Law, 18 U.S.C. § 1152, ³ which also refers to § 1111 for the definition of murder.

(3) The crime of killing a non-Indian by an Indian is also controlled by § 1153, as defined in § 1111. This is, of course, the situation in the case before us.

(4) In obvious contrast to the above, the killing of a non-Indian by a non-Indian in Indian country is a matter for prosecution by the state in which the offense occurred. New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); United States v. McBratney, 104 U.S. (14 Otto) 621, 26 L.Ed. 869 (1881); United States v. Cleveland, 503 F.2d 1067 (CA9 1974). Accordingly, the definition of murder in such a case is determined by reference to the situs state's law.

In 1966 Congress amended § 1153 to define and punish in accordance with State law assault with a dangerous weapon, incest, and assault with intent to commit rape. See 1966 U.S.Code Cong. & Admin.News, p. 3653. Burglary was already so treated. The other amendment in 1968 made definable and punishable under state law is the offense of assault resulting in serious bodily injury. However, neither amendment changed the definition of murder, which was and remains subject to federal definition under § 1111.

If, in this case, appellants had been non-Indians they would have been indictable only in the Idaho state courts under the murder definition contained in I.C.A. § 18-4003. ⁴ This provision, unlike the federal version in § 1111, contains no felony murder provision, but instead would require for conviction proof of premeditation and deliberation.

THE EQUAL PROTECTION CLAIM

The cornerstone of appellants' challenge is that they are discriminated against by reason of the racially-based disparity of governmental burdens of proof under 18 U.S.C. §§ 1153, 1111, and I.C.A. § 18-4003. Needless to say, it requires less evidence to obtain a first degree murder conviction under the federal definition in § 1111, with the felony murder inclusion, than is needed to obtain a murder conviction under the Idaho statute lacking such a provision. Not requiring proof of the critical Mens rea element of premeditation and deliberation, the federal prosecution of appellants is far less burdensome than had they been non-Indians subject only to Idaho jurisdiction.

Appellants correctly note that Congress has granted federal courts jurisdiction over the crime of which they are convicted solely on the basis of their race. Their argument, however, is not against the grant of jurisdiction itself, but rather against the accompanying definition of murder. They claim that, at least in their case, the definitional difference under the jurisdictional veil allows the government to accomplish something it would be prohibited from doing through direct statutory means if it were to prosecute both Indians and non-Indians for murders of non-Indians in Indian country.

We here emphasize that the Sole basis for the disparate treatment of appellants and non-Indians is that of race. Although the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); Johnson v. Robison, 415 U.S. 361, 364, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1973); Frontiero v. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment. Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), and Johnson v. Robison, supra, 415 U.S. 364 n. 4, 94 S.Ct. 1160. Racial classifications are inherently suspect, are subject to the "most rigid scrutiny," and bear a far heavier burden of justification than other classifications. Hunter v. Erickson, 393 U.S. 385, 392, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); McLaughlin v. Florida, 379 U.S. 184, 194, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944). They can pass constitutional muster only if they are not invidious or capricious and are reasonably related to a proper governmental objective. Bolling v. Sharpe, supra, 347 U.S. at 499, 500, 74 S.Ct. 693.

We have had occasion to review the constitutionality of § 1153 under equal protection and due process challenges in a variety of circumstances, but none involving murder or otherwise in point on appellants' claim. In Gray v. United States, 394 F.2d 96 (CA9 1967), Cert. denied 393 U.S. 985, 89 S.Ct. 459, 21 L.Ed.2d 446 (1968), we employed the traditional doctrine of federal wardship or protection of Indians in upholding as constitutional a disparity in sentencing in rape cases. However, the difference in treatment in Gray operated to mitigate the penalty for Indians raping non-Indians and thus inured to the Indians' benefit. This contrasts with the present case in which appellants are put at a distinct Disadvantage by the statute.

Appellee places great reliance upon Henry v. United States, 432 F.2d 114 (CA9 1970), Cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971), in which we held that although the defendant Indian was erroneously charged under § 1152 for his rape of two non-Indians on an Indian reservation, rather than correctly under § 1153, he was not prejudiced thereby and the error was harmless. More importantly, we rejected in Henry an equal protection claim which at least superficially resembles appellants', namely:

"(i)f, as hypothesized by appellant, one of the four defendants had happened to be a non-Indian both the victim and the offender would be non-Indians, and the crime of rape would not have been determined by reference to §§ 1152 and 2031 (federal definition of rape) . . ., but by the law of Nevada . . ."

Id. at 118. We dismissed this claim specifically because the law operated to apply identical definitions of rape under either federal or Nevada law, thus creating no real disparity of treatment between Indians and non-Indians charged with rape of non-Indian victims. Henry followed the holding of Mull v. United States, 402 F.2d 571 (CA9 1968), Cert. denied, 393 U.S. 1107, 89 S.Ct. 917, 21 L.Ed.2d 804 (1969). We there held that when a statute does not subject the Indian defendant to any truly invidious racial discrimination (I. e., when he is not put in a genuinely disadvantageous position), it cannot be challenged on equal protection grounds. ⁵ Of course, appellants' situation is precisely the opposite and serves as a critical point of distinction for our purposes. Mull, Gray and Henry all sustained § 1153 under constitutional challenge, but none of them involved the kind of invidious discrimination which puts an Indian defendant at a serious procedural or substantive disadvantage. Appellants' case is clearly one of first impression.

We believe that the rationale expressed in our...