United States v. Stuart Cleveland and Augustine Cleveland, United States of America v. Daven Chiago and Sanford Chiago

OPINION ON DENIAL OF REHEARING

Nothing in our opinion forecloses a new indictment based on 18 U.S.C. § 1153 as it read prior to the amendments that have been constitutionally invalidated.

Defendants Stuart and Augustine Cleveland, who are Indians, were charged under 18 U.S.C. § 1153 with assault with a deadly weapon upon named Indians and non-Indians, following an affray on an Arizona Indian reservation among the Clevelands and tribal and Arizona police. Defendants Daven and Sanford Chiago, also Indians, were charged with aiding and abetting an assault resulting in serious bodily injury to another Indian, an offense likewise occurring on an Indian reservation in Arizona. The district court dismissed the indictments on the ground that the statutes on which the prosecutions were founded unconstitutionally discriminated against these Indians in that Indians are subjected to harsher punishment than non-Indians who commit the same offenses, and, in prosecutions for assault with a dangerous weapon, the Government is given a lighter burden of proof in prosecuting Indians than is required in prosecuting non-Indians.

Federal jurisdiction for the prosecution of crimes committed on Indian reservations and the choice of federal or state criminal law in such prosecutions are based on 18 U.S.C. §§ 1152 , 1153. Under section'1152 crimes committed by non-Indians against…

503 F.2d 1067 UNITED STATES of America, Appellant, v. Stuart CLEVELAND and Augustine Cleveland, Appellees. UNITED STATES of America, Appellant, v. Daven CHIAGO and Sanford Chiago, Appellees. Nos. 73-3604, 74-1113. United States Court of Appeals, Ninth Circuit. Sept. 25, 1974, Rehearing Denied Jan. 27, 1975. David Adler, Crim. Div., Dept. of Justice (argued), Washington, D.C., for appellant. Tom Karas (argued), Federal Public Defender, Phoenix, Ariz., Nick L. Rayes (argued for 74-1113), Phoenix, Ariz., for appellees. Before BARNES and HUFSTEDLER, Circuit Judges, and ENRIGHT, District Judge. * OPINION. HUFSTEDLER, Circuit Judge: 1 Defendants Stuart and Augustine Cleveland, who are Indians, were charged under 18 U.S.C. 1153 with assault with a deadly weapon upon named Indians and non-Indians, following an affray on an Arizona Indian reservation among the Clevelands and tribal and Arizona police. Defendants Daven and Sanford Chiago, also Indians, were charged with aiding and abetting an assault resulting in serious bodily injury to another Indian, an offense likewise occurring on an Indian reservation in Arizona. The district court dismissed the indictments on the ground that the…