author: MR. Justice Blackmun

text:
    MATTZ v. ARNETT, DIRECTOR, DEPARTMENT OF FISH AND GAME
    No. 71-1182.
    Argued March 27-28, 1973
    Decided June 11, 1973

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

      Lee J. Sclar argued the cause and filed briefs for petitioner.

      Roderick Walston, Deputy Attorney General of California, argued the cause for respondent. With him on the briefs were Evelle J. Younger, Attorney General, and Carl Boronkay, Assistant Attorney General.

      Harry R. Sachse argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Frizzell, Carl Strass, and Glen R. Goodsell.

   MR. Justice Blackmun

delivered the opinion of the Court.

Our decision in this case turns on the resolution of the narrow question whether the Klamath River Indian Reservation in northern California was terminated by Act of Congress or whether it remains “Indian country,” within the meaning of 18 U. S. C. § 1151. When established, the reservation was described as “a strip of territory commencing at the Pacific Ocean and extending 1 mile in width on each side of the Klamath River” for a distance of approximately 20 miles, encompassing an area not exceeding 25,000 acres. This description is taken from President Franklin Pierce’s Executive Order issued November 16, 1855, pursuant to the authority granted by the Act of March 3, 1853, 10 Stat. 226, 238, and the Act of March 3, 1855, 10 Stat. 686, 699.

Petitioner Raymond Mattz is a Yurok, or Klamath River, Indian who, since the age of nine, regularly fished, as his grandfather did before him, with dip, gill, and trigger nets, at a location called Brooks Riffle on the Klamath River. On September 24, 1969, a California game warden confiscated five gill nets owned by Mattz. The nets were stored near Brooks Riffle, approximately 200 feet from the river, and within 20 miles of the river’s mouth.

The respondent Director of the Department of Fish and Game instituted a forfeiture proceeding in state court. Mattz intervened and asked for the return of his nets. He alleged, among other things, that he was an enrolled member of the Yurok Tribe, that the nets were seized within Indian country, and that the state statutes prohibiting the use of gill nets, Cal. Fish & Game Code §§8664, 8686, and 8630, therefore were inapplicable to him. The state trial court, relying on Elser v. Gill Net Number One, 246 Cal. App. 2d 30, 54 Cal. Rptr. 568 (1966), found that the Klamath River Reservation in 1892 “for all practical purposes almost immediately lost its identity,” and concluded that the area where the nets were seized was not Indian country. The court thereby disposed of petitioner's primary defense to the forfeiture. It did not reach other issues bearing upon the application of the California statutes to Indian country and the existence of Indian fishing rights there.

On appeal, the State Court of Appeal affirmed, holding that, inasmuch as the area in question had been opened for unrestricted homestead entry in 1892, the earlier reservation status of the land had terminated. 20 Cal. App. 3d 729, 97 Cal. Rptr. 894 (1971). The Supreme Court of California, one judge dissenting, denied a petition for hearing. See 20 Cal. App. 3d, at 735, 97 Cal. Rptr., at 898. We granted certiorari, 409 U. S. 1124 (1973), because the judgments of the state courts appeared to be in conflict with applicable decisions of this Court.

We now reverse. The reversal, of course, does not dispose of the underlying forfeiture issue. On remand, the questions relating to the existence of Matiz’ fishing rights and to the applicability of California law notwithstanding reservation status will be addressed. We intimate no opinion on those issues.

I

While the current reservation status of the Klamath River Reservation turns primarily upon the effect of an 1892 Act of Congress which opened the reservation land for settlement, the meaning and effect of that Act cannot be determined without some reference to the Yurok Tribe and the history of the reservation between 1855 and 1892.

The Yurok Indians apparently resided in the area of the lower Klamath River for a substantial period before 1855 when the Klamath River Reservation was established. Little is known of their prior history. There are sources, however, that provide us with relatively detailed information about the tribe, its culture, living conditions, and customs for the period following 1855. That the tribe had inhabited the lower Klamath River well before 1855 is suggested by the name. Yurok means “down the river.” The names of the neighboring tribes, the Karok and the Modok, mean, respectively, “up the river” and “head of the river,” and these appellations, as would be expected, coincide with the respective homelands. Powers 19; Kroeber 15.

By the Act of March 3, 1853, 10 Stat. 238, the President was “authorized to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.” The Act of March 3, 1855, 10 Stat. 699, appropriated funds for “collecting, removing, and subsisting the Indians of California ... on two additional military reservations, to be selected as heretofore . . . Provided, That the President may enlarge the quantity of reservations heretofore selected, equal to those hereby provided for.” President Pierce then issued his order of November 16, 1855, specifying the Klamath River Reservation and stating, “Let the reservation be made, as proposed.” Kappler 817.

The site was ideally selected for the Yuroks. They had lived in the area; the arable land, although limited, was “peculiarly adapted to the growth of vegetables,” 1856 Report 238; and the river, which ran through a canyon its entire length, abounded in salmon and other fish. Ibid.; 1858 Report 286.

In 1861 nearly all the arable lands on the Klamath River Reservation were destroyed by a freshet, and, upon recommendation of the local Indian agent, some of the Indians were removed to the Smith River Reservation, established for that purpose in 1862. Only a small number of Yuroks moved to the new reservation, however, and nearly all those who did move returned within a few years to the Klamath River. Crichton v. Shelton, 33 I. D. 205, 208 (1904); Kappler 830; 1864 Report 122. The Smith River Reservation was then discontinued. Act of July 27, 1868, 15 Stat. 198, 221.

The total Yurok population on the Klamath River Reservation in the 1860’s cannot be stated with precision. In 1852, based in part on a rough census made by a trader, it was estimated at 2,500. Kroeber 16-17. The effect of the 1861 flood cannot be firmly established; but it is clear that the tribe remained on the Klamath thereafter. For later years, Kroeber estimated that the population in 1895 was 900, and, in 1910, 668. Kroeber 19. From this it would appear that the flood at least did not cause a dissolution of the tribe; on the contrary, the Yuroks continued to reside in the area through the turn of the century and beyond.

The Act of April 8, 1864, 13 Stat. 39, designated California as one Indian superintendency. It also recited that “there shall be set apart by the President, and at his discretion, not exceeding four tracts of land, within the limits of said state, to be retained by the United States for the purposes of Indian reservations.” It further provided that “the several Indian reservations in California which shall not be retained . . . under . . . this act, shall ... be surveyed into lots or parcels . . . and ... be offered for sale at public outcry, and thence afterward shall be held subject to sale at private entry.” Id., at 40.

At the time of the passage of the 1864 Act there were, apparently, three reservations in California: the Klam-ath River, the Mendocino, and the Smith River. It appears, also, that the President did not take immediate action, upon the passage of the Act, to recognize reservations in California. It was not until 1868 that any formal recognition occurred, and then it was the Congress, rather than the President, that acted. In that year Congress discontinued the Smith River Reservation, 15 Stat. 221, and restored the Mendocino to the public lands. Id., at 223. No similar action was taken with respect to the Klamath River Reservation. Crichton v. Shelton, 33 I. D., at 209. Congress made appropriations for the Round Valley Reservation, 15 Stat. 221, and for it and the Hoopa Valley Reservation in 1869, 16 Stat. 37, although neither of these, apparently, had been established theretofore by formal Executive Order.

The Klamath River Reservation, although not reestablished by Executive Order or specific congressional action, continued, certainly, in de facto existence. Yuroks remained on reservation land, and the Department of Indian Affairs regarded the Klamath River Reservation as “in a state of reservation” throughout the period from 1864 to 1891. No steps were taken to sell the reservation, or parts thereof, under the 1864 Act. Indeed, in 1879, all trespassers there were removed by the military. In 1883 the Secretary of the Interior directed that allotments of land be made to the Indians on the reservation. In February 1889, the Senate, by resolution, directed the Secretary of the Interior “to inform the Senate what proceedings, if any, have been had in his Department relative to the survey and sale of the Klamath Indian reservation ... in pursuance of the provisions of the act approved April 8, 1864.” 20 Cong. Rec. 1818. In response, the Commissioner of Indian Affairs, by letter dated February 18, 1889, to the Secretary disclosed that no proceedings to this effect had been undertaken. An Assistant Attorney General for the Department of the Interior expressed a similar view in an opinion dated January 20, 1891.

In 1888, in a forfeiture suit, the United States District Court for the Northern District of California concluded that the area within the Klamath River Reservation was not Indian country, within the meaning of Rev. Stat. § 2133, prescribing the penalty for unlicensed trading in Indian country. The court concluded that the land composing the reservation was not retained or recognized as reservation land pursuant to the 1864 Act and that, therefore, it no longer constituted an Indian reservation. United States v. Forty-eight Pounds of Rising Star Tea, 35 F. 403 (ND Cal. 1888). This holding was expressly affirmed on appeal to a circuit judge. 38 F. 400 (CCND Cal. 1889). The Assistant Attorney General, in the opinion referred to above, conceded the probable correctness of the judgment but was not convinced that his own views were erroneous, and he could not assent to the reasoning of the court. He felt that the court’s comments as to the abandoned status of the reservation “were dicta and not essential to the decision of the case before the court.” Crichton v. Shelton, 33 I. D., at 215.

Thus, as of 1891, it may be fair to say that the exact legal status of the Klamath River Reservation was obscure and uncertain. The petitioner in his brief here, p. 14, states that the reservation “ceased to exist in 1876, at the latest.”

Any question concerning the reservation’s continuing legal existence, however, appears to have been effectively laid to rest by an Executive Order dated October 16, 1891, issued by President Benjamin Harrison. By the specific terms of that order, the Hoopa Valley Reservation, which, as we already have noted, was located in 1864 and formally set apart in 1876, and which was situated about 50 miles upstream from the Klamath River’s mouth, was extended so as to include all land, one mile in width on each side of the river, from “the present limits” of the Hoopa Valley Reservation to the Pacific Ocean. The Klamath River Reservation, or what had been the reservation, thus was made part of the Hoopa Valley Reservation, as extended.

The reason for incorporating the Klamath River Reservation in the Hoopa Valley Reservation is apparent. The 1864 Act had authorized the President to “set apart” no more than four tracts for Indian reservations in California. By 1876, and certainly by 1891, four reservations already had been so set apart. These were the Round Valley, referred to above, the Mission, the Hoopa Valley, and the Tule River. Kappler 830-831. Thus, recognition of a fifth reservation along the Klamath River was not permissible under the 1864 Act. Accordingly, the President turned to his authority under the Act to expand an existing, recognized reservation. He enlarged the Hoopa Valley Reservation to include what had been the Klamath River Reservation as well as an intervening riparian strip connecting the two tracts. The President’s continuing authority so to enlarge reservations and, specifically, the legality of the 1891 Executive Order, was affirmed by this Court in Donnelly v. United States, 228 TJ. S. 243, 255-259 (1913), reh. denied, 228 U. S. 708, and is not challenged here.

II

This general background as to the origin and development of the Klamath River Reservation is not contested by either party. The reservation’s existence, pursuant to the Executive Order of 1891, is conceded. The present controversy relates to its termination subsequent to 1891, and turns primarily upon the effect of the Act of June 17, 1892, 27 Stat. 52, entitled “An act to provide for the disposition and sale of lands known as the Klamath River Indian Reservation.” This Act provided:

“That all of the lands embraced in what was Klamath River Reservation in the State of California, as set apart and reserved under authority of law by an Executive order dated November sixteenth, eighteen hundred and fifty-five, are hereby declared to be subject to settlement, entry, and purchase under the laws of the United States granting homestead rights and authorizing the sale of mineral, stone, and timber lands: Provided, That any Indian now located upon said reservation may, at any time within one year from the passage of this act, apply to the Secretary of the Interior for an allotment .... And the Secretary of the Interior may reserve from settlement, entry, or purchase any tract or tracts of land upon which any village or settlement of Indians is now located, and may set apart the same for the permanent use and occupation of said village or settlement of Indians. . . . Provided further, That the proceeds arising from the sale of said lands shall constitute a fund to be used under the direction of the Secretary of the Interior for the maintenance and education of the Indians now residing on said lands and their children.”

The respondent Director argues that this statute effected the termination of the Klamath River Reservation. The petitioner urges the contrary. It is our task, in light of the language and purpose of the Act, as well as of the historical background, outlined above, to determine the proper meaning of the Act and, consequently, the current status of the reservation.

The respondent relies upon what he feels is significant language in the Act and upon references in the legislative history. He contends, “The fact that the lands were to be opened up for settlement and sale by homesteaders strongly militates against a continuation of such reservation status.” Brief for Respondent 3.

We conclude, however, that this is a misreading of the effect of the allotment provisions in the 1892 Act. The meaning of those terms is to be ascertained from the overview of the earlier General Allotment Act of 1887, 24 Stat. 388. That Act permitted the President to make allotments of reservation lands to resident Indians and, with tribal consent, to sell surplus lands. Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallotted lands were made available to non-Indians with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways. See § 6 of the General Allotment Act, 24 Stat. 390; United States Department of the Interior, Federal Indian Law 115-117, 127-129, 776-777 (1958). Under the 1887 Act, however, the President was not required to open reservation land for allotment; he merely had the discretion to do so.

In view of the discretionary nature of this presidential power, Congress occasionally enacted special legislation in order to assure that a particular reservation was in fact opened to allotment. The 1892 Act was but one example of this. Its allotment provisions, which do not differ materially from those of the General Allotment Act of 1887, and which in fact refer to the earlier Act, do not, alone, recite or even suggest that Congress intended thereby to terminate the Klamath River Reservation. See Seymour v. Superintendent, 368 U. S. 351, 357-358 (1962). Rather, allotment under the 1892 Act is completely consistent with continued reservation status. This Court unanimously observed, in an analogous setting in Seymour, id., at 356, “The Act did no more [in this respect] than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.” See United States v. Celestine, 215 U. S. 278 (1909); United States v. Nice, 241 U. S. 591 (1916). See also Wilbur v. United States, 281 U. S. 206 (1930); Donnelly v. United States, 228 U. S. 243 (1913).

Ill

The respondent further urges, however, that his view of the effect of the 1892 Act is supported by the Act's reference to “what was [the] Klamath River Reservation.” According to the respondent, this reference, and other references in the legislative history, compel the conclusion that Congress intended to terminate the reservation in 1892.

The 1892 Act, to be sure, does refer to the Klamath River Reservation in the past tense. But this is not to be read as a clear indication of congressional purpose to terminate. Just a few weeks before the bill (H. R. 38, 52d Cong., 1st Sess.), which eventually became the Act, was reported out of committee on February 5, 1892, H. R. Rep. No. 161, 52d Cong., 1st Sess., the President had formally extended the Hoopa Valley Reservation to include the Klamath River Reservation. And only that portion of the extension which had been the Klamath River Reservation was the subject of the 1892 Act. The reference to the Klamath River Reservation in the past tense seems, then, merely to have been a natural, convenient, and shorthand way of identifying the land subject to allotment under the 1892 Act. We do not believe the reference can be read as indicating any clear purpose to terminate the reservation directly or by innuendo.

The respondent also points to numerous statements in the legislative history that, in his view, indicate that the reservation was to be terminated. We need not refer in detail to the cited passages in H. R. Rep. No. 161, supra, or to the debates on the bill, 23 Cong. Rec. 1598-1599, 3918-3919 (1892), for there is no challenge here to the view that the House was generally hostile to continued reservation status of the land in question. In our estimation, however, this very fact, in proper perspective, supports the petitioner and undermines the respondent's position.

As early as 1879, there were efforts in Congress to abolish the Klamath River Reservation. From that date to 1892 strong sentiment existed to this effect. But it does not appear that termination ever commanded majority support. The advocates of termination argued that the reservation, as of 1879, long had been abandoned; that the land was useless as a reservation; and that many white settlers had moved on to the land and their property should be protected. See H. R. Rep. No. 1354, 46th Cong., 2d Sess., 5 (1880). That whites had settled there is clear, but the view that no Indians remained after the flood of 1861 appears to have been a gross misconception on the part of those who sought termination.

The first bill providing for public entry and sale of the Klamath River Reservation was introduced in the Senate on May 28, 1879. S. Res. 34, 46th Cong., 1st Sess.; 9 Cong. Rec. 1651. The resolution referred to the reservation’s having been “abandoned” in 1855 “ and the tribe removed to another reservation established for its use.” No action was taken on the bill, and another, of the same purport, was introduced on January 12, 1880, in the House. H. R. 3454, 46th Cong., 2d Sess.; 10 Cong. Rec. 286. This bill provided that the reservation “be, and the same is hereby, abolished,” and authorized and directed the Secretary of the Interior to survey the lands and have them made subject to homestead and preemption entry and sale “the same as other public lands.” It is clear from the report on this second bill, H. R. Rep. No. 1354, supra, at 1-5, that the establishment of the reservation in 1855 was viewed as a mistake and an injustice. According to the Report, the reservation had been abandoned after the 1861 freshet, and the Indians had moved to the Smith River and, later, the Hoopa Valley Reservations. White settlers had moved in and wished to exploit the lumber and soil of the area which, some said, “has no equal in California as a fruit and wine growing country.” Id., at 5. Inasmuch as the reservation blocked access to the river, the resources of the area could not be developed. Although unmentioned in that Report, the Office of Indian Affairs opposed the bill. See H. R. Rep. No. 1148, 47th Cong., 1st Sess., 1 (1882). The bill as reported was recommitted and no further action was taken. 10 Cong. Rec. 3126 (1880).

An identical bill was introduced in the following Congress. H. R. 60, 47th Cong., 1st Sess.; 13 Cong. Rec. 90 (1881). The Commissioner of Indian Affairs opposed the bill as introduced, but stated that he would not oppose it if provision for prior allotments to the Indians was made. H. R. Rep. No. 1148, supra, at 2. The Commissioner's proposed amendment was approved by the Committee, 13 Cong. Rec. 3414 (1882), but no action on the bill was taken by the full House.

In 1883 and 1884 three more bills were introduced. It is of interest to note that each acceded to the request of the Commissioner that provision be made for prior allotments to resident Indians. H. R. 112, 48th Cong., 1st Sess.; 15 Cong. Rec. 62 (1883); S. 813, 48th Cong., 1st Sess.; 15 Cong. Rec. 166 (1883); H. R. 7505, 48th Cong., 1st Sess.; 15 Cong. Rec. 5923 (1884). Each bill would have “abolished” the reservation and would have made the land subject to homestead and pre-emption entry. None of the bills was enacted, although passage must have been generally regarded as likely, for the Indian Bureau in 1883 began the work of allotment and survey, perhaps in anticipation of passage.

In 1885 two bills were introduced in the House. Each was substantially identical to those introduced in 1883 and 1884. H. R. 158 and H. R. 165, 49th Cong., 1st Sess. ; 17 Cong. Rec. 370 (1885). No action was taken on either bill.

No further bills, apparently, were introduced until 1889. During the intervening period, however, the General Allotment Act of 1887, 24 Stat. 388, was passed and thereafter amended, 26 Stat. 794. The Rising Star Tea case, 35 F. 403, was also decided.

In 1889 a bill providing for the allotment of the Klamath River Reservation was introduced. The allotments, however, were to be made in a manner inconsistent with the General Allotment Act. H. R. 12104, 50th Cong., 2d Sess.; 20 Cong. Rec. 756 (1889). And after affirmance of the Rising Star Tea case by the circuit court, 38 F. 400 (1889), identical bills were introduced in the House and the Senate providing, without mention of allotment, that “all of the lands embraced in what was Klamath River Reservation . . . are hereby de-dared to be subject to settlement, entry, and purchase” under the land laws. H. It. 113, 51st Cong., 1st Sess.; 21 Cong. Rec. 229 (1889); S. 2297, 51st Cong., 1st Sess.; 21 Cong. Rec. 855 (1890). The Indian Office opposed the bills, recommending that they be amended to provide for allotments to the Indians under the General Allotment Act, that surplus lands be restored to the public domain, and that the proceeds be held in trust for the Klamath River Indians. See Short v. United States, No. 102-63, pp. 44-45 (Report of Commissioner, Court of Claims, 1972). H. R. 113 was reported out of committee with certain amendments, including one to the effect that proceeds arising from the sale of lands were to be used for the “removal, maintenance, and education” of the resident Indians, the Hoopa Valley Reservation being considered the place of removal. Allotments to the Indians on the Klamath Reservation, however, were emphatically rejected. H. R. Rep. No. 1176, 51st Cong., 1st Sess., 2 (1890). The bill was so amended and passed the House. 21 Cong. Rec. 10701-10702 (1890). It died in the Senate.

In light of the passage of this last bill in the House and the presence of the Rising Star Tea opinions, the Indian Department moved to have the Klamath River Reservation land protected for the Indians residing there. The details of this effort, including the opinion of the Assistant Attorney General, referred to above, are outlined in the Commissioner’s report in Short v. United States, supra, at 45-50. These efforts culminated in President Harrison’s Executive Order of October 1891 expanding the Hoopa Valley Reservation to include the Klamath River Reservation.

It is against this background of repeated legislative efforts to terminate the reservation, and to avoid allotting reservation lands to the Indians, that the 1892 Act was introduced. H. R. 38, 52d Cong., 1st Sess.; 23 Cong. E.ec. 125 (1892). The bill provided for the settlement, entry, and purchase of the reservation land and specified that the proceeds should be used for the “removal, maintenance, and education” of the resident Indians. No allotments were provided for, as the Indians were “semicivilized, disinclined to labor, and have no conception of land values or desire to cultivate the soil.” H. R. Rep. No. 161, 52d Cong., 1st Sess., 1 (1892). The House Committee on Indian Affairs amended the bill by changing the word “and” to “or” in the proviso relating to the use of proceeds. Id., at 2.

The bill passed the House without change. 23 Cong. Rec. 1598-1599 (1892). It was struck out in the Senate, however, and another version was substituted deleting reference to the removal of the Indians and providing that before public sale the land should be allotted to the Indians under the General Allotment Act of 1887, as amended. Id., at 3918-3919. This substitute measure had the support of the Interior Department. Id., at 3918. The Senate called for a conference with the House, id., at 3919, and the conference adopted the Senate version with amendments. Sen. Mise. Doc. No. 153, 52d Cong., 1st Sess. (1892). The bill was then passed and became the 1892 Act.

IV

Several conclusions may be drawn from this account. First, the respondent’s reliance on the House Report and on comments made on the floor of the House is not well placed. Although the primary impetus for termination of the Klamath River Reservation had been with the House since 1871, this effort consistently had failed to accomplish the very objectives the respondent now seeks to achieve. Likewise, the House in 1892 failed to accomplish these objectives, for the Senate version, supported by the Interior Department, was substituted for that of the House. The Senate version, ultimately enacted, provided for allotments to the Indians and for the proceeds of sales to be held in trust for the “maintenance and education,” not the removal, of the Indians. The legislative history relied upon by the respondent does not support the view that the reservation was terminated; rather, by contrast with the bill as finally enacted, it compels the conclusion that efforts to terminate the reservation by denying allotments to the Indians failed completely.

A second conclusion is also inescapable. The presence of allotment provisions in the 1892 Act cannot be interpreted to mean that the reservation was to be terminated. This is apparent from the very language of 18 U. S. C. § 1151, defining Indian country “notwithstanding the issuance of any patent”, therein. More significantly, throughout the period from 1871-1892 numerous bills were introduced which expressly provided for the termination of the reservation and did so in unequivocal terms. Congress was fully aware of the means by which termination could be effected. But clear termination language was not employed in the 1892 Act. This being so, we are not inclined to infer an intent to terminate the reservation. The Court stated in United States v. Celestine, 215 U. S., at 285, that “when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.” A congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. See Seymour v. Superintendent, 368 TJ. S. 351 (1962); United States v. Nice, 241 U. S. 591 (1916).

Finally, our conclusion that the 1892 Act did not terminate the Klamath River Reservation is reinforced by repeated recognition of the reservation status of the land after 1892 by the Department of the Interior and by Congress. In 1904 the Department, in Crichton v. Shelton, 33 I. D. 205, ruled that the 1892 Act reconfirmed the continued existence of the reservation. In 1932 the Department continued to recognize the Klamath River Reservation, albeit as part of the Hoopa Valley Reservation, and it continues to do so today. And Congress has recognized the reservation's continued existence by extending the period of trust allotments for this very reservation by the 1942 Act, described above, 25 U. S. C. § 348a, and by restoring to tribal ownership certain vacant and undisposed-of ceded lands in the reservation by the 1958 Act, supra.

We conclude that the Klamath River Reservation was not terminated by the Act of June 17, 1892, and that the land within the boundaries of the reservation is still Indian country, within the meaning of 18 U. S. C. § 1151.

The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings.

It is so ordered.

       Title 18 U. S. C. § 1151 defines the term “Indian country” to include, inter alia, “all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent . . . .”
      Title 18 U. S. C. § 1162 (a) provides that, with respect to Indian country within California, that State “shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country ... to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the State . . . , and the criminal laws of such State . . . shall have the same force and effect within such Indian country as they have elsewhere within the State . . . .” Section 1162 (b) provides, however, “Nothing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.”
      Finally, the California Fish & Game Code § 12300 (Supp. 1973), reads:
      “Irrespective of any other provision of law, the provisions of this code are not applicable to California Indians whose names are inscribed upon the tribal rolls, while on the reservation of such tribe and under those circumstances in this State where the code was not applicable to them immediately prior to the effective date of Public Law 280, Chapter 505, First Session, 1953, 83d Congress of the United States [18 U. S. C. § 1162].”

       The Executive Order is reproduced in 1 C. Kappler, Indian Affairs — Laws and Treaties 817 (1904) (hereinafter Kappler).
      At the end of this opinion, as the Appendix, is a map of the Klam-ath River Reservation. The area described in the text is indicated as the “Old Klamath River Reservation.”

       See Pet. for Cert., App. B 4-5.

       A. Kroeber, Handbook of the Indians of California, ec. 1-4, published as Bulletin 78, Bureau of American Ethnology 1-97 (1925) (hereinafter Kroeber); S. Powers, Tribes of California, cc. 4 and 5, published as 3 Contributions to North American Ethnology 44^64 (1877) (hereinafter Powers). Various Annual Reports of the Commissioner of Indian Affairs provide further information; see, for example, the 1856 Report of the Commissioner of Indian Affairs 249-250 (hereinafter Report).

       Kroeber, in the preface to his work, suggests that the factual material contained in Powers' manuscript is subject to some criticism. Kroeber’s reference to Powers deserves reproduction in full here:

        “I should not close without expressing my sincere appreciation of my one predecessor in this field, the late Stephen Powers, well known for his classic 'Tribes of California,' one of the most remarkable reports ever printed by any government. Powers was a journalist by profession and it is true that his ethnology is often of the crudest. Probably the majority of his statements are inaccurate, many are misleading, and a very fair proportion are without any foundation or positively erroneous. He possessed, however, an astoundingly quick and vivid sympathy, a power of observation as keen as it was untrained, and an invariably spirited gift of portrayal that rises at times into the realm of the sheerly fascinating. Anthropologically his great service lies in the fact that with all the looseness of his data and method he was able to a greater degree than anyone before or after him to seize and fix the salient qualities of the mentality of the people he described. The ethnologist may therefore by turns writhe and smile as he fingers Powers’s pages, but for the broad outlines of the culture of the California Indian, for its values with all their high fights and shadows, he can still do no better than consult the book. With all its flimsy texture and slovenly edges, it will always remain the best introduction to the subject.” Kroeber ix.

       Of this area one agent stated, “No place can be found so well adapted to these Indians, and to which they themselves are so well adapted, as this very spot. No possessions of the Government can be better spared to them. No territory offers more to these Indians and very little territory offers less to the white man. The issue of their removal seems to disappear.” 1885 Report 266.

       It is interesting to note that Powers believed the Yurok population at one time far exceeded 2,500 and perhaps numbered over 5,000. This was, as Powers stated, “before the whites had come among them, bringing their corruptions and their maladies . . . .” Powers 59. The renowned Major John Wesley Powell, who was then in charge of the United States Geographical and Geological Survey of the Rocky Mountain Region, Department of the Interior, placed little faith in Powers’ figures and requested that he modify his estimates. Powers expressed his displeasure at this in a letter to Major Powell stating, in characteristic fashion,
      “I have the greatest respect for your views and beliefs, and, with your rich fund of personal experience and observation; if you desire to cut out the paragraph and insert one under your own signature, in brackets, or something of that kind, I will submit without a murmur, if you will add this remark, as quoted from myself, to wit: T desire simply to ask the reader to remember that Major Powell has been accustomed to the vast sterile wastes of the interior of the continent, and has not visited the rich forests and teeming rivers of California.’ But I should greatly prefer that you would simply disavow the estimates, and throw the whole responsibility upon me.
      “This permission I give you; but I have waded too many rivers and climbed too many mountains to abate one jot of my opinions or beliefs for any carpet-knight who yields a compiling-pen in the office of the - or -. If any critic, sitting in his comfortable parlor in New York, and reading about the sparse aboriginal populations of the cold forests of the Atlantic States, can overthrow any of my conclusions with a dash of his pen, what is the use of the book at all? As Luther said, at the Diet of Worms, ‘Here I stand; I cannot do otherwise.’
      “I beg you, my dear major, not to consider anything above written as in the slightest degree disrespectful to yourself; such is the farthest remove from my thoughts.” Powers 2-3.
      Powers’ estimates were not altered, and the above-quoted letter was placed sympathetically by Major Powell in the introductory section of Powers’ published study.

       1864 Report 122; Opinion dated Jan. 20, 1891, of the Assistant Attorney General for the Department of the Interior, quoted in Crichton v. Shelton, 33 I. D. 205, 210 (1904); Kroeber 19. Another source estimates that in 1871 the Indian population along the Klamath was 2,500. Report of D. H. Lowry, Indian Agent, Sept. 1, 1871, noted in Short v. United States, No. 102-63, p. 35 (Report of Commissioner, Court of Claims, 1972).

       The Hoopa Valley Reservation was located August 21, 1864, but formally set apart for Indian purposes, as authorized by the 1864 Act, by President Grant only by Executive Order dated June 23, 1876. Kappler 815. See Appendix map. The area is that described as the "Original Hoopa Valley Reservation.”

         Letter dated Apr. 4, 1888, from the Commissioner of Indian Affairs to the Secretary of the Interior, quoted in Crichton v. Shelton, 33 I. D., at 211.

       The allotments, however, were postponed "on account of the discovery of gross errors in the public surveys.” Ibid.; 1885 Report XLVIII.

       “In response to said resolution, I have to state that I am unable to discover from the records or correspondence of this office that any proceedings were ever had or contemplated by this Department for the survey and sale of said reservation under the provisions of the act aforesaid; on the contrary, it appears to have been the declared purpose and intention of the superintendent of Indian affairs for California, who was charged with the selection of the four reservations to be retained under said act, either to extend the Hoopa Valley Reservation (one of the reservations selected under the act), so as to include the Klamath River Reservation, or else keep it as a separate independent reservation, with a station or subagency there, to be under control of the agent at the Hoopa Valley Reservation, and the lands have been held in a state of reservation from that day to this (Ex. Doc. 140, pp. 1, 2).” Quoted in Crichton v. Shelton, 33 I. D., at 212.

       “Pushing aside all technicalities of construction, can any one doubt that for all practical purposes the tract in question constitutes an Indian reservation? Surely, it has all the essential characteristics of such a reservation; was regularly established by the proper authority; has been for years and is so occupied by Indians now, and is regarded and treated as such reservation by the executive branch of the government, to which has been committed the management of Indian affairs and the administration of the public land system .... It is said, however, that the Klamath River reservation was abolished by section three of the act of 1864. Is this so?

      “In the present instance, the Indians have lived upon the described tract and made it their home from time immemorial; and it was regular!y set apart as such by the constituted authorities, and dedicated to that purpose with all the solemnities known to the law, thus adding official sanction to a right of occupation already in existence. It seems to me something more than a mere implication, arising from a rigid and technical construction of an act of Congress, is required to show that it was the intention of that body to deprive these Indians of their right of occupancy of said lands, without consultation with them or their assent. And an implication to that effect is all, I think that can be made out of that portion of the third section of the act of 1864 which is supposed to be applicable.” Quoted in Crichton v. Shelton, 33 I. D., at 212-213.

       “It is hereby ordered that the limits of the Hoopa Valley Reservation in the state of California, a reservation duly set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in said State, by Act of Congress approved April [8], 1864, (13 Stats., 39), be and the same are hereby extended so as to include a tract of country one mile in width on each side of the Klamath River, and extending from the present limits of the said Hoopa Valley reservation to the Pacific Ocean; Provided, however, That any tract or tracts included within the above described boundaries to which valid rights have attached under the laws of the United States are hereby excluded from the reservation as hereby extended.” Kappler 815.

       Kappler 819-824. It is noteworthy that the boundaries of the Mission Reservation were altered repeatedly between 1870 and 1875, and even thereafter. These actions were taken under the President’s continuing authority to set apart and add to or diminish the four reservations authorized under the 1864 Act. Donnelly v. United States, 228 U. S. 243 and 708 (1913). In its final form, the Mission Reservation consisted of no less than 19 different and noncontiguous tracts. Kappler 819-824; Crichton v. Shelton, 33 I. D., at 209-210.

       See Appendix map. The strip of land between the Hoopa Valley Reservation and the Klamath River Reservation is referred to there as the “Connecting Strip.” Under the 1891 Executive Order the Hoopa Valley Reservation was extended to encompass all three areas indicated on the map. The connecting strip and the old Klamath River Reservation frequently are referred to as the Hoopa Valley Extension.

       The trust period on allotments to Indians on the Klamath River Reservation expired in 1919, but was later extended by Congress by the Act of Dec. 24, 1942, 56 Stat, 1081, 25 U. S. C. § 348a. See S. Rep. No. 1714, 77th Cong., 2d Sess. (1942). And in 1958 Congress restored to tribal ownership vacant and undisposed-of ceded lands on various reservations, including 159.57 acres on the Klamath River Reservation. Pub. L. 85-420, 72 Stat. 121.

       For an extended treatment of allotment policy, see D. Otis, History of the Allotment Policy, in Readjustment of Indian Affairs, Hearings on H. R. 7902 Before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428-440 (1934). The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U. S. C. § 461 et seq.

       See, for example, the Act of Mar. 2, 1889, 25 Stat. 888 (Sioux Reservations), and United States v. Nice, 241 U. S. 591 (1916) ; the Act of Mar. 22, 1906, 34 Stat. 80 (Colville Reservation), and Seymour v. Superintendent, 368 U. S. 351 (1962); the Act of May 29, 1908, 35 Stat. 460 (Cheyenne River and Standing Rock Reservations), and United States ex rel. Condon v. Erickson, 478 F. 2d 684 (CA8 1973), aff’g 344 F. Supp. 777 (SD 1972).

       The respondent argues, however, that Congress, perhaps unacquainted with the Executive Order of October 1891, intended this language to convey the view expressed in the House Report, H. R. Rep. No. 161, supra, 23 Cong. .Rec. 1598-1599 (1892), that the Klamath River Reservation had long been abandoned and, in fact and in law, had already been terminated.
      It is clear from the text, infra, that there were efforts in certain quarters of the House to terminate the reservation and open it for white settlement. See Short v. United, States, supra, n. 8, at 3F-52. While the respondent’s interpretation of the phrase is plausible, it is no less plausible to conclude, in light of the repeated and unsuccessful efforts by the House to terminate the reservation, that the Senate proponents of the legislation were not inclined to make their cause (of requiring allotments) less attractive to the House by amending the bill to refer to the “former Klamath River Reservation, now part of the Hoopa Valley Reservation” rather than “what was [the] Klamath River Reservation.”

       The Department of the Interior took issue with the Committee's population estimates. H. R. Rep. No. 1148, 47th Cong., 1st Sess., 1-3 (1882). In a letter transmitted to the Committee on Indian Affairs in 1881, an infantry lieutenant, acting as Indian Agent, suggested that the Committee’s population estimates were “gleaned principally from civilians, who are, I believe, somewhat inclined to lessen the number, thinking doubtlessly that the smaller the number the greater the likelihood of its being thrown open to settlers.” Id., at 2.

       Congress has used clear language of express termination when that result is desired. See, for example, 15 Stat. 221 (1868) (“the Smith River reservation is hereby discontinued”); 27 Stat. 63 (1892) (adopted just two weeks after the 1892 Act with which this case is concerned, providing that the North Half of the Colville Indian Reservation, “the same being a portion of the Colville Indian Reservation ... be, and is hereby, vacated and restored to the public domain”), and Seymour v. Superintendent, 368 U. S., at 354; 33 Stat. 218 (1904) (“the reservation lines of the said Ponca and Otoe and Missouria Indian reservations be, and the same are hereby, abolished”).

       In United, States ex rel. Condon v. Erickson, 478 F. 2d 684 (1973), the United States Court of Appeals for the Eighth Circuit reached a similar conclusion in a case presenting issues not unlike those before us. The court concluded, id., at 689, that “a holding favoring federal jurisdiction is required unless Congress has expressly or by clear implication diminished the boundaries of the reservation opened to settlement” (emphasis in original).

       Hearings before a Subcommittee of the Senate Committee on Indian Affairs, Survey of Conditions of the Indians in the United States, pt. 29, California, 72d Cong., 1st Sess., 15532 (1934).

       Although subsequent legislation usually is not entitled to much weight in construing earlier statutes, United States v. Southwestern Cable Co., 392 U. S. 157, 170 (1968), it is not always without significance. See Seymour v. Superintendent, 368 U. S., at 356-357.


source: Caselaw Access Project

author:
Mr. Justice Rehnquist
      Mr. Justice Brennan, Mr. Justice Douglas,

license: Public Domain

text:
    CITY OF KENOSHA et al. v. BRUNO et al.
    No. 72-658.
    Argued April 18, 1973
    Decided June 11, 1973
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Black-mun, and Powell, JJ., joined. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 516. Douglas, J., filed an opinion dissenting in part, post, p. 516.

      LeRoy L. Dalton, Assistant Attorney General of Wisconsin, argued the cause for appellants. With him on the briefs were Robert W. Warren, Attorney General, Michael S. Fisher, and Edward A. Krenzke.

      James A. Walrath argued the cause and filed a brief for appellees Sleepy’s, Inc., et al.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

Appellees, owners of retail liquor establishments, were holders of tavern liquor licenses issued under Wisconsin law by appellants, the cities of Racine and Kenosha. Acting pursuant to Wis. Stat. Ann. §§ 176.05 (1), (8) (1957 and Supp. 1973), the cities denied appellees’ applications for renewal of their one-year licenses after holding public “legislative” hearings. Alleging, inter alia, deprivations of their Fourteenth Amendment procedural due process rights in such denials and, by amended complaints, the unconstitutionality of §§ 176.05 (1), (8), appellees brought these federal civil rights actions for declaratory and injunctive relief naming in each case only the appropriate municipality as a defendant. The District Court entered temporary restraining orders commanding the immediate issuance of licenses and convened a three-judge district court pursuant to 28 U. S. C. § 2281 to rule on the constitutionality of the statutory licensing procedure. Thereafter, the Attorney General of Wisconsin was allowed to intervene as a party defendant on his own motion. On cross-motions for summary judgment, the District Court declared the statute unconstitutional and enjoined its enforcement. This direct appeal followed.

Under the Wisconsin local licensing scheme, the governing bodies of municipalities are authorized to grant liquor licenses “to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors. . . .” Wis. Stat. Ann. § 176.05 (1) (1957). The statutory scheme has been interpreted by the Wisconsin Supreme Court to require a “legislative type of hearing wherein one is given notice of the hearing and a fair opportunity to state his position on the issue,” in situations where municipalities have denied an application for renewal of a license. Ruffalo v. Common Council, 38 Wis. 2d 518, 524, 157 N. W. 2d 568, 571 (1968). Such applications may not be rejected “without a statement on the clerk’s minutes as to the reasons for such rejection,” Wis. Stat. Ann. § 176.05 (8) (Supp. 1973), and the state courts have certiorari jurisdiction to review whether such refusals by the councils are arbitrary, capricious, or discriminatory. Ruff alo v. Common Council, supra.

In the case of the Racine denials, it was stipulated that the question of the appellees’ applications for licenses was referred to the License and Welfare Committee of the Common Council and that at public hearings conducted by that Committee, appellees were present and heard oral objections to the renewal of the licenses for their taverns. After holding a public hearing, the Common Council followed the Committee’s recommendation and voted to deny the applications, apparently because of the adverse effects on the community of nude dancing in the bars.

It was also stipulated that at all meetings, all persons including appellees were given an opportunity to speak, but no speaker was sworn. None of the testimony was recorded and no verbatim transcript was made. Appellees were not advised that they could cross-examine any of the speakers, and they did not request such an opportunity. And there was no advance written specification of the charges against any of the bars.

Relying on two Seventh Circuit decisions, the three-judge court (as had the single judge) held that “in light of the equitable nature of this action” it had jurisdiction pursuant to 28 U. S. C. § 1343 (3). Concluding that Racine’s interest in being able to deny the renewal of liquor licenses with no other safeguard than a legislative hearing is “minimal,” the court balanced that interest against that of appellees, assertedly their occupations and their investments, and determined that the Due Process Clause of the Fourteenth Amendment requires municipalities to grant an “adversary-type hearing in which the applicant is given timely notice of the reasons urged for denial [of renewal of his license] and an opportunity to present, confront, and cross-examine witnesses under oath with a verbatim transcript.” 346 F. Supp. 43, 51.

I

Neither party to the appeal has questioned the jurisdiction of the District Court, but “it is the duty of this court to see to it that the jurisdiction of the [district court], which is defined and limited by statute, is not exceeded.” Louisville ><&• Nashville R. Co. v. Mottley, 211 U. S. 149,152 (1908). Appellees alleged that they brought their action under 42 U. S. C. § 1983, and that the District Court therefore had jurisdiction under 28 U. S. C. § 1343. The District Court agreed. The only defendants named in the complaints, however, were the municipalities of Kenosha and Racine. In considering the reach of § 1983 in Monroe v. Pape, 365 U. S. 167 (1961), this Court examined the legislative history surrounding its enactment and said:

“The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word ‘person’ was used in this particular Act to include them.” Id., at 191.

The District Court relied on Schnell v. City of Chicago, 407 F. 2d 1084 (CA7 1969), and Adams v. City of Park Ridge, 293 F. 2d 585 (CA7 1961), in holding that Monroe was limited to actions for damages, and that cities were proper defendants under § 1983 where equitable relief was sought. Adams, supra, in turn, relied on this Court's per curiam opinion in Holmes v. City of Atlanta, 350 U. S. 879 (1955). But in none of the three opinions in Holmes was the issue of whether or not a municipality is a “person” within the meaning of § 1983 discussed. The authority of that case as support for the proposition that a city is a “person” under § 1983 where equitable relief is sought, but is not a “person” under the same section where damages are prayed for, is at least seriously weakened by the following observation in Monroe, supra, at 191 n. 50:

“In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendant where violations of 42 U. S. C. § 1983 were alleged. See, e. g., Douglas v. City of Jeannette, 319 U. S. 157; Holmes v. City of Atlanta, 350 U. S. 879. The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a 'person’ within the meaning of § 1983, no inference to the contrary can any longer be drawn from those cases.”

We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word “person” in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, “Congress did not undertake to bring municipal corporations within the ambit of” § 1983, id., at 187, they are outside of its ambit for purposes of equitable relief as well as for damages. The District Court was therefore wrong in concluding that it had jurisdiction of appellees’ complaints under § 1343.

As previously noted, after the complaints had been filed and issue joined, the Attorney General of Wisconsin was allowed to intervene as a party defendant in the actions. The District Court, having concluded that it had jurisdiction to entertain the original complaints under § 1343, understandably did not address itself to the question of whether the intervention of the Attorney General as a party would cure the jurisdictional defect which we now find to exist in appellees' complaints. The District Court also observed that “were not civil rights jurisdiction proper, each of the plaintiffs herein would be able to assert the necessary . . . controversy requirement of Title 28 U. S. C. § 1331.” 346 F. Supp., at 50. But although appellees in the Racine denials alleged jurisdiction pursuant to 28 U. S. C. § 1331 as well as § 1343, and in each complaint there was an allegation of an investment in a tavern of at least $20,000, the defendant municipal corporations answered by putting the appellees to their proof as to the amount in controversy. Since the cases were submitted and decided on cross-motions for summary judgment and stipulations of fact, and no stipulation as to the amount in controversy was filed, we cannot say on this state of the record whether or not jurisdiction over the complaints was affirmatively established. See Hague v. CIO, 307 U. S. 496, 507-508 (1939), and cases therein cited. With respect to the Kenosha denials, there was a stipulation as to jurisdictional amount in the proceedings before the single-judge District Court, and an allegation of the requisite jurisdictional amount in the amended complaint, which for the first time challenged the constitutional validity of the Wisconsin statutory licensing scheme. No answer was filed to the amended complaint prior to the entry of judgment by the District Court.

We have had the benefit of neither briefs, arguments, nor explicit consideration by the District Court of the jurisdictional questions presented by the intervention of the Attorney General as a party, and the availability of § 1331 jurisdiction in view of the state of the record below. We therefore remand the case to the District Court for consideration of these issues.

II

Appellees’ licenses have been neither revoked nor suspended. Their claim of deprivation of Fourteenth Amendment procedural due process rights arises from the failure of the cities of Kenosha and Racine to hold full-blown adversary hearings before refusing to renew their one-year licenses. Our decisions last year in Board of Regents v. Roth, 408 U. S. 564 (1972), and Perry v. Sindermann, 408 U. S. 593 (1972), discussed the nature of “liberty” and “property” that is protected against denial without due process by the Fourteenth Amendment. The District Court did not discuss these recent cases, and it followed, in part, the decision of the Court of Appeals for the Seventh Circuit which was reversed in Roth. It, therefore, made no evaluation of “property” or “liberty” interests which might require a due process hearing, or of the nature of such a hearing if it were required in the light of our opinions in Roth, supra, and Perry, supra.

The District Court, also, did not have the benefit of this Court’s decision in California v. LaRue, 409 U. S. 109 (1972). There we held again that while the Twenty-first Amendment did not abrogate a requirement of procedural due process, Wisconsin v. Constantineau, 400 U. S. 433 (1971), it did grant the States broad authority over the distribution and sale of liquor. We also held that regulations prohibiting the sale of liquor by the drink on premises where there were nude but not necessarily obscene performances were facially constitutional.

We, therefore, direct the District Court, after addressing the issue of jurisdiction, to reconsider its judgment in the light of Roth, Perry, and LaRue. The judgment of the District Court is vacated and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring.

Although I join the opinion of the Court, I would add that I find unimpeachably correct the District Court’s conclusion that appellants failed to comply with the requirements of the Due Process Clause in denying renewal of appellees’ liquor licenses. Nevertheless, since the defendants named in the complaints were the municipalities of Kenosha and Racine, jurisdiction cannot be based on 28 U. S. C. § 1343. Moor v. County of Alameda, 411 U. S. 693 (1973); Monroe v. Pape, 365 U. S. 167 (1961). Appellees did assert 28 U. S. C. § 1331 as an alternative ground of jurisdiction, but I agree with the Court’s conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then § 1331 jurisdiction is available, Bell v. Hood, 327 U. S. 678 (1946); cf. Bivens v. Six Fed. Narcotics Agents, 403 U. S. 388 (1971), and they are clearly entitled to relief.

Mr. Justice Douglas,

dissenting in part.

I have expressed my doubts in Moor v. County of Alameda, 411 U. S. 693, 722 (dissenting opinion), that our decision in Monroe v. Pape, 365 U. S. 167, bars equitable relief against a municipality. In that case the legislative history on which that construction of “person” as used in 42 U. S. C. § 1983 was based related to the fear of mulcting municipalities with damage awards for unauthorized acts of its police officers. Monroe v. Pape may be read as containing dicta that a remedy by way of declaratory relief or by injunction is barred by § 1983 as well as suits for damages. Yet I do not think we should decide that question without full briefing and considered argument.

I do, however, concur in a remand for reconsideration by the District Court in light of Board of Regents v. Roth, 408 U. S. 564, Perry v. Sindermann, 408 U. S. 593, and California v. LaRue, 409 U. S. 109.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING IN PART

The holding in Monroe v. Pape that municipalities are not subject to suits for damages under § 1983 was based largely on Congress’ rejection of the Sherman Amendment, which would have provided compensation for individuals from the county, city, or parish for any damage caused by riots, etc. Two theories were expressed in the debates for rejecting the amendment.

The first was the notion that civil liability for damages might destroy or paralyze local governments. Also, it was thought unjust that local governments (and indirectly the citizenry at large) should be subject to damages when they bore no responsibility. Although the Senate passed the amendment, Senator Stevenson stated in opposition:

“This amendment wholly ignores the municipal liability created by the omission of direct, absolute corporate duty. We are now, for the first time, presented with an enactment which undertakes to create a corporate liability for personal injury which no prudence or foresight could have prevented. . . .
“But, Mr. President, this amendment is clearly unconstitutional. If it is attempted to be carried out it will destroy the municipal government of every city and the local government of every county where this liability is created .... Let a judgment be recovered against any of our cities in the East or West and a lien is by this amendment created not only upon the municipal property of such city, but upon every dollar in the city treasury. The credit of the city, the means to discharge its contracts and its most solemn obligations are by the operation of this act to be applied to such judgment.
“I have heard no reason for such a lien. If carried out to its full extent, it must prove utterly destructive of the State municipalities! And whence does the Federal Government derive its power in any manner or form to touch the revenues of the State governments or any of its agencies? . . .” Cong. Globe, 42d Cong., 1st Sess., 762.

Senators Casserly and Bayard expressed similar concerns. Id., at 763-764, 776.

In the House, Congressman Kerr stated:

“There is, therefore, a total and absolute absence of notice, constructive or implied, within any decent limits of law or reason. And the bill itself is significantly silent on the subject of notice to these counties and parishes or cities. Under this section it is not required, before liability shall attach, that it shall be known that there was any intention to commit these crimes, so as to fasten liability justly upon the municipality. ... It takes the property of one and gives it to another by mere force, without right, in the absence of guilt or knowledge . . . .” Id., at 788.

See also id., at 791 (statement of Cong. Willard). And Congressman Farnsworth was concerned that the amendment would “put the hand of the national Government into [local government’s] treasury.” Id., at 799.

There was another strain, however. Congressman Brooks viewed the amendment as raising the old struggle between the Federalists and the Democrats. Id., at 790. In the words of Congressman Poland, one of the House managers of the Conference Committee, “[w]ith these local subdivisions we have nothing to do. We can impose no duty upon them; we can impose no liability upon them in any manner whatever.” Id., at 793. He stated further:

“But the enforcing a liability, existing by their own contract, or by a State law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, and no power or control over them whatever. . . .
“. . . Counties and towns are subdivisions of the State government, and exercise in a limited sphere and extent the powers of the State delegated to them; they are created by the State for the purpose of carrying out the laws and policy of the State, and are subject only to such duties and liabilities as State laws impose upon them.” Id., at 794.

After the House finally had defeated the Sherman Amendment and the Conference substitute for the amendment, Poland stated:

“I did understand from the action and vote of the House that the House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of State law.” Id., at 804.

See also id., at 795 (statement of Cong. Burchard), 799 (statement of Cong. Farnsworth).

To the extent that the Sherman Amendment was directed only at liability for damages and the devastating effect those damages might have on municipalities, it seems that the defeat of the amendment does not affect the existence vel non of an equitable action. One may, of course, argue that the sweeping statements of Poland and others that Congress had no constitutional power (however defective that argument is in light of developed constitutional doctrine) to authorize any action against a subdivision of state government indicated a purpose to go the whole way and not allow even injunctive relief against a municipality. But this is a matter which the Court has never faced.

       In the case of appellee Misurelli, it appears from the record that his partner was actually the holder of the expired license. The District Court held, however, that in substance his application was no different from those of the other appellees.

       Wis. Stat. Arm. § 176.05 provides:
      “(1) Authority to grant licenses. Each town board, village board and common council may grant retail licenses, under the conditions and restrictions in this chapter contained, to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors. No member of any such town board, village board or common council shall sell directly or indirectly or offer for sale, to any person, firm, or corporation that holds or applies for any such license any bond, material, product, or other matter or thing that may be used by any such licensee or prospective licensee in the carrying on of his or its said business.”

       Wis. Stat. Ann. § 176.05 provides:
      “(8) Annual license meetings. All town and village boards and common councils, or the duly authorized committees of such councils, shall meet not later than May 15 of each year and be in session from day to day thereafter, so long as it may be necessary, for the purpose of acting upon such applications for license as may be presented to them on or before April 15, and all applications fox license so filed shall be granted, issued or denied not later than June 15 for the ensuing license year, provided that nothing shall prevent any governing body from granting any licenses which are applied for at any other time. As soon as an application has been approved, a duplicate copy thereof shall be forwarded to the secretary of revenue. No application for a license which is in existence at the time of such annual license meeting shall be rejected without a statement on the clerk’s minutes as to the reasons for such rejection.”

       The Racine denials were utilized by the District Court as the basis for the main opinion holding the Wisconsin scheme unconstitutional and the other cases were decided on the basis of the main opinion. We are therefore primarily considering the factual background of the Racine denials in our disposition.

       No such stipulation was filed for appellee Robers, however.

         Schnell v. City of Chicago, 407 F. 2d 1084 (1969), and Adams v. City of Park Ridge, 293 F. 2d 585 (1961).

       Title 28 U. S. C. § 1343 provides:
      “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

      “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States

       Title 42 U. S. C. § 1983 provides:
      “Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       The court in Schnell v. City of Chicago, supra, simply followed the previous circuit decision in Adams v. City of Park Ridge, supra, with no independent analysis.

      See the Appendix to this opinion.


author: Mr. Justice Rehnquist

text:
    LOGUE et al. v. UNITED STATES
    No. 72-656.
    Argued April 24, 1973
    Decided June 11, 1973

      Rehnquist, J., delivered the opinion for a unanimous Court. Stewart and MaRshall, JJ., filed a separate statement.

      James DeAnda argued the cause for petitioners. With him on the brief were J. Robert McKissick, Ed Idar, Jr., Mario Obledo, and Michael Mendelson.

      Mark L. Evans argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wood, and Robert E. Kopp.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Reagan Logue, a federal prisoner confined in a county-jail pending trial, fashioned a noose from a bandage covering a laceration on his left arm and hanged himself. His mother and adoptive father sued the United States for damages under the Federal Tort Claims Act, 28 U. S. C. § 1346 (b), claiming that negligence on the part of Government agents and employees proximately caused the death of their son. The District Court determined that Logue’s death was the result of negligence for which the United States was liable, and awarded damages. 334 F. Supp. 322 (SD Tex. 1971). The Court of Appeals reversed this judgment, 459 F. 2d 408 (1972), rehearing en banc denied, 463 F. 2d 1340 (1972). We granted certiorari in order to consider the application to this case of the Act’s exclusion of employees of a “contractor with the United States.” 28 U. S. C. § 2671.

On May 22, 1968, Reagan Logue was arrested by Deputy United States Marshal Del Bowers on a bench warrant charging Logue with conspiracy to smuggle 229 pounds of marihuana into the United States. After a hearing, he was taken to the Nueces County jail in Corpus Christi, Texas, to await trial. This jail is one of some 800 institutions operated by state and local governments that contract with the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of federal prisoners.

On the day after his initial incarceration Logue attempted to commit suicide by slashing veins in his left arm. He was immediately taken to a hospital emergency room for treatment of the laceration. While the wound turned out to be relatively minor, Logue was admitted to the hospital's psychiatric floor because of the attending doctor’s observation that he was actively hallucinating and out of touch with reality. The psychiatrist who later took charge of the case, recognizing Logue’s suicidal tendencies, recommended to federal officials that he be committed to a medical facility for rehabilitation.

On the following day, May 24, the District Court ordered that Logue be transferred to a federal medical facility pursuant to 18 U. S. C. § 4244. While awaiting the processing of papers and other steps preparatory to the actual transfer, however, federal officials made arrangements to transfer Logue back to the Nueces County jail. Before the transfer, Bowers informed the chief jailer of Logue’s suicidal tendencies and requested that he prepare for Logue a special cell removed of all dangerous objects that might be used in another suicide attempt. Such a cell was prepared by the jail authorities, and Logue was placed in it. Bowers made no specific arrangements for constant surveillance of Logue once he was confined, and the jail employees made only periodic checks when they were on that floor for some other reason. The day after his return to the jail, Logue removed the Kerlix bandage that had been applied to the laceration on his left arm and hanged himself.

The District Court found that there had been a contract between the Government and Nueces County whereby the latter undertook to house federal prisoners in the county jail at Corpus Christi. That court nonetheless found that the United States was liable for the negligence of the employees of the Nueces County sheriff as well as for the negligence of its own employee. The court found the former to have been negligent because their surveillance of Logue was “inadequate,” and it found Bowers to have been negligent in failing to make “specific arrangements ... for constant surveillance of the prisoner.”

The Court of Appeals reversed the judgment of the District Court, stating in its opinion that:

“We interpret [18 U. S. C. §4002] as fixing the status of the Nueces County jail as that of a 'contractor.! Title 28 U. S. C., Sec. 2671 .... This insulates the United States from liability under the FTCA for the negligent acts or omissions of the jail’s employees. We find no support in the record for holding that Deputy Marshal Bowers had any power or authority to control any of the internal functions of the Nueces County jail. The deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased.” 459 F. 2d, at 411.

The Federal Tort Claims Act makes the United States liable for money damages “caused by the negligent or wrongful act or omission of any employee of the Government . . . 28 U. S. C. § 1346 (b). Section 2671 of Title 28 U. S. C. contains the following definitions:

“As used in this chapter and sections 1346 (b) and 2401 (b) of this title, the term ‘Federal agency’ includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.
“ ‘Employee of the government’ includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.”

For the Government to be liable for the negligence of an employee of the Nueces County jail, he must be shown to be an “employee of the Government” as that term is used in the Federal Tort Claims Act. Though petitioners do not always distinguish between their two theories, they appear to contend alternatively that the Nueces County jail is a “Federal agency” by reason of its contract for the care of federal prisoners, or that the employees of the jail are “acting on behalf of” the Bureau of Prisons or the Government in performing services for federal prisoners. The Court of Appeals rejected these contentions, and we believe that it was right in doing so.

We read that portion of the Court of Appeals’ opinion quoted supra as treating the “contractor” exemption from the definition of “Federal agency” in § 2671 as adopting the common-law distinction between the liability of an employer for the negligent acts of his own employees and his liability for the employees of a party with whom he contracts for a specified performance. Both the modern common law as reflected in the Restatement of Agency and the law of Texas make the distinction between the servant or agent relationship and that of independent contractor turn on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract.

In Maryland v. United States, 381 U. S. 41 (1965), one of the factors relied upon by the Court in determining that both military and civilian National Guard personnel were employees of the States, rather than of the United States, for purposes of the Federal Tort Claims Act, was the “supervision exercised by the States over both military and civilian personnel,” id., at 53. The courts of appeals that have had occasion to decide the question appear to have unvaryingly held that the “contractor with the United States” language of § 2671 adopts the traditional distinction between employees of the principal and employees of an independent contractor with the principal, and to have also held that the critical factor in making this determination is the authority of the principal to control the detailed physical performance of the contractor. See, e. g., Gowdy v. United States, 412 F. 2d 525, 534 (CA6 1969); Eutsler v. United States, 376 F. 2d 634 (CA10 1967); Yates v. United States, 365 F. 2d 663 (CA4 1966); Kirk v. United States, 270 F. 2d 110 (CA9 1959).

Petitioners cite the commentary to the Restatement (Second) of Torts §409 (1965), to the effect that the common-law' distinction that shields the employer from liability for injuries caused to another by the negligent act of a contractor or his servant is subject to so many exceptions that it is the general rule “only in the sense that it is applied where no good reason is found for departing from it.” Congress, of course, could have left the determination as to whose negligence the Government should be liable for under the Federal Tort Claims Act to the law of the State involved, as it did with other aspects of liability under the Act. But it chose not to do this, and instead incorporated into the definitions of the Act the exemption from liability for injury caused by employees of a contractor. While this congressional choice leaves the courts free to look to the law of torts and agency to define “contractor,” it does not leave them free to abrogate the exemption that the Act provides.

Petitioners suggest that because 18 U. S. C. § 4042 imposes a duty on the Bureau of Prisons to “provide for the safekeeping, care, and subsistence of all persons charged with . . . offenses against the United States . . .” the Nueces County employees who were discharging the Government’s obligation by contract should be held to be employees of the Government for purposes of liability under the Act. This Court held in United States v. Muniz, 374 U. S. 150 (1963), that a breach of the duty imposed on the Government by 18 U. S. C. § 4042 was actionable under the Act. But the same public law that imposed this duty on the Government also authorized the Government to contract with state and local authorities to provide safekeeping and care:

“For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.
“The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons.” 18 U. S. C. § 4002 (emphasis added).

Thus, Congress not only authorized the Government to make contracts such as the one here in question, but rather clearly contemplated that the day-to-day operations of the contractor’s facilities were to be in the hands of the contractor, with the Government’s role limited to the payment of sufficiently high rates to induce the contractor to do a good job. The contract entered into between the Government and Nueces County reflects a similar division of responsibility. The county undertakes to provide custody in accordance with the Bureau of Prisons’ “rules and regulations governing the care and custody of persons committed” under the contract. These rules in turn specify standards of treatment for federal prisoners, including methods of discipline, rules for communicating with attorneys, visitation privileges, mail, medical services, and employment. But the agreement gives the United States no authority to physically supervise the conduct of the jail’s employees; it reserves to the United States only “the right to enter the institution ... at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed.”

The Court of Appeals’ conclusion that the deputy marshal had no authority to control the activities of the sheriff’s employees is supported by both the enabling statute and the contract actually executed between the parties. We agree with its resultant holding that the sheriff’s employees were employees of a “contractor with the United States,” and not, therefore, employees of a “Federal agency.”

The judges of the Court of Appeals who dissented from the denial of rehearing en banc pointed out that petitioners alternatively contended in that court, as they do here, that even though the sheriffs’ employees might not be “employees” of a federal agency, they might nonetheless be “acting on behalf of a Federal agency in an official capacity . . . .” 463 F. 2d, at 1342. If petitioners were successful in establishing this contention, of course, an employee of the Nueces County jail would be an “employee of the government” under § 2671 even though he was not an “employee” of a federal agency.

The legislative history to which we are referred by the parties sheds virtually no light on the congressional purpose in enacting the “acting on behalf of” language of § 2671. The long gestation period of the Act in the committees of Congress has been recounted in Dalehite v. United States, 346 U. S. 15, 24-30 (1953), and this lengthy period may have something to do with the paucity of helpful committee reports on this point. One of the more immediate antecedents of the bill that Congress enacted contained identical “acting on behalf of” language: “and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” H. R. 5373, 77th Cong., 2d Sess., § 101 (1942), quoted in Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 1 (1942). One of the appendices to the hearings on these bills compares the provisions of H. R. 6463, containing the “acting on behalf of” language, with previous drafts, and states that “ ‘Employee of the Government’ in the present bill is defined to include uncompensated or temporary officers or employees of the United States.” Hearings, supra, at 58. The committee’s observation thus affords some support to the Government’s contention that the language is designed to cover special situations such as the “dollar-a-year” man who is in the service of the Government without pay, or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangement.

The dissenting judges in the Court of Appeals expressed the view that “when the Government decides that a particular individual should assume obligations and responsibilities virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual’s breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States.” 463 F. 2d, at 1342-1343. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as “acting on behalf of” a federal agency simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of “Federal agency” in § 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees.

While we therefore agree with the conclusion of the Court of Appeals that the Government was not liable for the negligence of the employees of Nueces County, we disagree with its implicit determination that such a conclusion ends the case. For the District Court imposed liability on the Government, not only for the negligent acts of employees of the Nueces County sheriff, but also for negligent acts of Deputy Marshal Bowers, who was concededly an employee of the Government. The District Court found that Bowers, knowing of the prisoner's suicidal tendencies, should have made “specific arrangements ... for constant surveillance of the prisoner,” and that his failure to do so was negligence. The Court of Appeals in that portion of its opinion quoted supra, at 525, stated that “[t]he deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased.” 450 F. 2d, at 411. But that conclusion appears to us to follow from the court’s discussion of the nature of the intergovernmental relationship and the status of the sheriff’s employees rather than being a separate rejection of the finding of the District Court that Bowers himself was negligent. Since the Court of Appeals thus did not consider the distinct question regarding the negligence of Bowers, we believe that the parties’ arguments on that question should be addressed in the first instance to the Court of Appeals.

We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of the liability of the Government insofar as that liability may be based on the negligence of Deputy Marshal Bowers.

It is so ordered.

Mr. Justice Stewart and Mr. Justice Marshall join the opinion of the Court upon the understanding that, upon remand, the Court of Appeals’ consideration of Bowers’ negligence will not be limited to his alleged failure to make “specific arrangements ... for constant surveillance of the prisoner.”

       “Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346 (b).

       The Federal Bureau of Prisons has statutory authority to contract with state prisons for the housing of federal prisoners:
      “For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.
      “Such Federal prisoners shall be employed only in the manufacture of articles for, the production of supplies for, the construction of public works for, and the maintenance and care of the institutions of, the State or political subdivision in which they are imprisoned.
      “The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons.” 18 U. S. C. § 4002.
      The contract with the Nueces County jail incorporates by reference the standard of care set forth in this statute.

       There was testimony that Logue had twice before made suicide attempts.

         There was testimony at trial that it normally takes about a week or two after a commitment order has been entered before a prisoner can be physically transferred to a mental institution. There was also testimony that this process can be expedited to obtain commitment as early as 24 hours after an order has been signed.

       Restatement (Second) of Agency §2 (1958):
      “(1) A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
      “(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
      “(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. He maj- or may not be an agent.”

         E. g., Great Western Drilling Co. v. Simmons, 157 Tex. 268, 302 S. W. 2d 400 (1957).

       This argument is also put in terms of a "non-delegable duty” owed by the Government to a prisoner under 18 U. S. C. §4042.

       The two courts of appeals’ cases relied upon by petitioners involved findings of control by the Government that are contrary to the determination of the Court of Appeals in this case. In Close v. United States, 130 U. S. App. D. C. 125, 397 F. 2d 686 (1968), the court reversed a summary judgment in favor of the Government, observing that there was no reason to assume that the Attorney General was without power to supervise the District of Columbia’s jailer. The court expressly noted that no contention was made that the District of Columbia jail was a “contract” jail. Id., at 126, 397 E. 2d, at 687. In Witt v. United States, 462 F. 2d 1261 (CA2 1972), the court held that the supervising employee “was certainly amenable to some degree of control by the Disciplinary Barracks,” id., at 1264, and that he was therefore “acting on behalf of” the Government.