author: Mr. Justice Blackmun

text:
    UNITED STATES v. JOHN et al.
    No. 77-836.
    Argued April 19, 1978
    Decided June 23, 1978

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

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

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

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

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

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

   Mr. Justice Blackmun

delivered the opinion of the Court.

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

I

In October 1975, in the Southern District of Mississippi, Smith John was indicted by a federal grand jury for assault with intent to kill Artis Jenkins, in violation of 18 U. S. C. §§ 1153 and 113 (a). He was tried before a jury and, on December 15, was convicted of the lesser included offense of simple assault: A sentence of 90 days in a local jail-type institution and a fine of $300 were imposed. On appeal, the United States Court of Appeals for the Fifth Circuit, considering the issue on its own motion, see App. to Pet. for Cert, in No. 77-836, p. 39A, ruled that the District Court was without jurisdiction over the case because the lands designated as a reservation for the Choctaw Indians residing in Mississippi, and on which the offense took place, were not “Indian country,” and that, therefore, § 1153 did not provide a basis for federal prosecution. 560 F. 2d 1202, 1205-1206 (1977). The United States sought review, and we granted its petition for certiorari in No. 77-836. 434 U. S. 1032 (1978).

In April 1976, Smith John was indicted by a grand jury of Leake County, Miss., for aggravated assault upon the same Artis Jenkins, in violation of Miss. Code Ann. § 97-3-7 (2) (Supp. 1977). The incident that was the subject of the state indictment was the same as that to which the federal indictment related. A motion to dismiss the charge on the ground the federal jurisdiction was exclusive was denied. John was tried before a jury in the Circuit Court of Leake County and, in May 1976, was convicted of the offense charged. He was sentenced to two years in the state penitentiary. On appeal, the Supreme Court of Mississippi, relying on its earlier decision in Tubby v. State, 327 So. 2d 272 (1976), and on the decision of the United States Court of Appeals for the Fifth Circuit in United States v. State Tax Comm’n, 505 F. 2d 633 (1974), rehearing denied, 535 F. 2d 300, rehearing en banc denied, 541 F. 2d 469 (1976), held that the United States District Court had had no jurisdiction to prosecute Smith John, and that, therefore, his arguments against state-court jurisdiction were without merit. 347 So. 2d 959 (1977). Characterizing the case as one-falling within this Court’s jurisdiction under 28 U. S. C. § 1257 (2) (1976 ed.), Smith John filed notice of an appeal in No. 77-575. We postponed jurisdiction, 434 U. S. 1032 (1978). We now note jurisdiction. Antoine v. Washington, 420 U. S. 194 (1975); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973).

II

There is no dispute that Smith John is a Choctaw Indian, and it is presumed by all that he is a descendant of the Choctaws who for hundreds of years made their homes in what is now central Mississippi. The story of these Indians, and of their brethren who left Mississippi to settle in what is now the State of Oklahoma, has been told in the pages of the reports of this Court and of other federal courts. See, e. g., Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970); Winton v. Amos, 255 U. S. 373 (1921); Fleming v. McCurtain, 215 U. S. 56 (1909); United States v. Choctaw Nation, 179 U. S. 494 (1900); Choctaw Nation v. United States, 119 U. S. 1 (1886) ; Chitto v. United States, 133 Ct. Cl. 643, 138 F. Supp. 253, cert. denied, 352 U. S. 841 (1956); Choctaw Nation v. United States, 81 Ct. Cl. 1, cert. denied, 296 U. S. 643 (1935).

At the time of the Revolutionary War, these Indians occupied large areas of what is now the State of Mississippi. In the years just after the formation of our country, they entered into a treaty of friendship with the United States. Treaty at Hopewell, 7 Stat. 21 (1786). But the United States became anxious to secure the lands the Indians occupied in order to allow for westward expansion. The Choctaws, in an attempt to avoid what proved to be their fate, entered into a series of treaties gradually relinquishing their claims to these lands.

Despite these concessions, when Mississippi became a State on December 10, 1817, the Choctaws still retained claims, recognized by the Federal Government, to more than three-quarters of the land within the State’s boundaries. The popular pressure to make these lands available to non-Indian settlement, and the responsibility for these Indians felt by some in the Government, combined to shape a federal policy aimed at persuading the Choctaws to give up their lands in Mississippi completely and to remove to new lands in what for many years was known as the Indian Territory, now a part of Oklahoma and Arkansas. The first attempt to effectuate this' policy, the Treaty at Doak’s Stand, 7 Stat. 210 (1820), resulted in an exchange of more than 5 million acres. Because, however, of complications arising when it was discovered that much of the land promised the Indians already had been settled, most Choctaws remained in Mississippi. A delegation of Choctaws went to Washington, D. C., to untangle the situation and to negotiate yet another treaty. See 7 Stat. 234 (1825). Still, few Choctaws moved.

Only after the election of Andrew Jackson to the Presidency in 1828 did the federal efforts to persuade the Choctaws to leave Mississippi meet with some success. Even before Jackson himself had acted on behalf of the Federal Government, however, the State of Mississippi, grown impatient with federal policies, had taken steps to assert jurisdiction over the lands occupied by the Choctaws. In early 1829, legislation was enacted purporting to extend legal process into the Choctaw territory. 1824-1838 Miss. Gen. Laws 195 (Act of Feb. 4, 1829). In his first annual address to Congress on December 8, 1829, President Jackson made known his position on the Indian question and his support of immediate removal. S. Doc. No. 1, 21st Cong., 1st Sess., 15-16 (1829). Further encouraged, the Mississippi Legislature passed an Act purporting to abolish the Choctaw government and to impose a fine upon anyone assuming the role of chief. The Act also declared that the rights of white persons living within the State were to be enjoyed by the Indians, and that the laws of the State were to be in effect throughout the territory they occupied. 1824-1838 Miss. Gen. Laws 207 (Act of Jan. 19, 1830).

In Washington, Congress debated whether the States had power to assert such jurisdiction and whether such assertions were wise. But the only message heard by the Choctaws in Mississippi was that the Federal Government no longer would stand between the States and the Indians. Appreciating these realities, the Choctaws again agreed to deal with the Federal Government. On September 27, 1830, the Treaty at Dancing Rabbit Creek, 7 Stat. 333, was signed. It provided that the Choctaws would cede to the United States all lands still occupied by them east of the Mississippi, more than 10 million acres. They were to remove to lands west of the river, where they would remain perpetually free of federal or state control, by the fall of 1833. The Government would help plan and pay for this move. Each Choctaw “head of a family being desirous to remain and become a citizen of the States,” id., at 335, however, was to be permitted to do so by signifying his intention within six months to the federal agent assigned to the area. Lands were to be reserved, at least 640 acres per household, to be held by the Indians in fee simple if they would remain upon the lands for five years. Ibid. Other lands were reserved to the various chiefs and to others already residing on improved lands. Id., at 335-336. Those who remained, however, were not to “lose the priviledge of a Choctaw citizen,” id., at 335, although they were to receive no share of the annuity provided for those who chose to remove.

The relations between the Federal Government and the Choctaws remaining in Mississippi did not end with the formal ratification of the Treaty at Dancing Rabbit Creek by the United. States Senate in February 1831. 7 Cong. Deb. 347 (1831). The account of the federal, attempts to satisfy the obligations of the United States both to those who remained, and to those who removed, is one best left to historians. It is enough to say here that the failure of these attempts, characterized by incompetence, if not corruption, proved an embarrassment and an intractable problem for the Federal Government for at least a century. See, e. g., Chitto v. United States, 133 Ct. Cl. 643, 138 F. Supp. 253 (1956). It remained federal policy, however, to try to induce these Indians to leave Mississippi.

During the 1890’s, the Federal Government became acutely aware of the fact that not all the Choctaws had left Mississippi. At that time federal policy toward the Indians favored the allotment of tribal holdings, including the Choctaw holdings in the Indian Territory, in order to make way for Oklahoma’s statehood. The inclusion of the Choctaws then residing in Mississippi in the distribution of these holdings proved among the largest obstacles encountered during the allotment effort. But even during this era, when federal policy again supported the removal of the Mississippi Choctaws to join their brethren in the West, there was no doubt that there remained persons in Mississippi who were properly regarded both by the Congress and by the Executive Branch as Indians.

It was not until 1916 that this federal recognition of the presence of Indians in Mississippi was manifested by other than attempts to secure their removal. The appropriations for the Bureau of Indian Affairs in that year included an item (for $1,000) to enable the Secretary of the Interior “to investigate the condition of the Indians living in Mississippi” and to report to Congress “as to their heed for additional land and school facilities.” 39 Stat. 138. See H. R. Doc. No. 1464, 64th Cong., 2d Sess. (1916). In March 1917, hearings were held in Union, Miss., by the House Committee on Investigation of the Indian Service, again exploring the desirability of providing federal services for these Indians. The efforts resulted in an inclusion in the general appropriation for the Bureau of Indian Affairs in 1918. This appropriation, passed only after debate in the House, 56 Cong. Rec. 1136-1140 (1918), included funds for the establishment of an agency with a physician, for the maintenance of schools, and for the purchase of land and farm equipment. Lands purchased through, these appropriations were to be sold on contract to individuals in keeping with the general pattern of providing lands eventually to be held in fee by individual Indians, rather than held collectively. Further provisions for the Choctaws in Mississippi were made in similar appropriations in later years.

In the 1930’s, the federal Indian policy had shifted back toward the preservation of Indian communities generally. This shift led to the enactment of the Indian Reorganization Act of 1934, 48 Stat. 984, and the discontinuance of the allotment program. The Choctaws in Mississippi were among the many groups who, before the legislation was enacted, voted to support its passage. This vote was reported to Congress by the Bureau of Indian Affairs. See Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 82 (1934); Hearings on H. R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 423 (1934). On March 30, 1935, the Mississippi Choctaws voted, as anticipated by § 18 of the Act, 48 Stat. 988, 25 U. S. C. § 478 (1976 ed.), to accept the provisions of the Act. T. Haas, Ten Years of'Tribal Government Under I. R. A. 17 (U. S. Indian Service, Tribal Relations Pamphlet No. 1 (1947)).

By this time, it had become obvious that the original method of land purchase authorized by the 1918 appropriations — by contract to a particular Indian purchaser — not only was inconsistent with the new federal policy of encouraging the preservation of Indian communities with commonly held lands, but also was not providing the Mississippi Choctaws with the benefits intended. See H. R. Rep. No. 194, 76th Cong., 1st Sess. (1939). In 1939, Congress passed an Act providing essentially that title to all the lands previously purchased for the Mississippi Choctaws would be “in the United States in trust for such Choctaw Indians of one-half or more Indian blood, resident in Mississippi, as shall be designated by the Secretary of the Interior.'” Ch. 235, 53 Stat. 851. In December 1944, the Assistant Secretary of the Department of the Interior officially proclaimed all the lands then purchased in aid of the Choctaws in Mississippi, totaling at that time more than 15,000 acres, to be a reservation. 9 Fed. Reg. 14907.

In April 1945, again as anticipated by the Indian Reorganization Act, § 16, 48 Stat. 987, 25 U. S. C. §476 (1976 ed.), the Mississippi Band of Choctaw Indians adopted a constitution and bylaws; these were duly approved by the appropriate federal authorities in May 1945.

With this historical sketch as background, we turn to the jurisdictional issues presented by Smith John’s case.

Ill

In order to determine whether there is federal jurisdiction over the offense with which Smith John was charged (alleged in the federal indictment to have been committed “on and within the Choctaw Indian Reservation and on land within the Indian country under the jurisdiction of the United States of America”), we first look to the terms of the statute upon which the United States relies, that is, the Major Crimes Act, 18 U. S. C. § 1153. This Act, as codified at the time of the alleged offense, provided: “Any Indian who commits . . . assault with intent to kill . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any [such offense], within the exclusive jurisdiction of the United States.” The definition of “Indian country” as used here and elsewhere in chapter 53 of Title 18 is provided in § 1151. Both the Mississippi Supreme Court and the Court of Appeals concluded that the situs of the alleged offense did not constitute “Indian country/’ and that therefore § 1153 did not afford a basis for the prosecution of Smith John in federal court. We do not agree.

With certain exceptions not pertinent here, § 1151 includes within the term “Indian country” three categories of land. The first, with which we are here concerned, is “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent.” This language first appeared in the Code in 1948 as a part of the general revision of Title 18. The Reviser’s Notes indicate that this definition was based on several decisions of this Court interpreting the term as it was used in various criminal statutes relating to Indians. In one of these cases, United States v. McGowan, 302 U. S. 535 (1938), the Court held that the Reno Indian Colony, consisting of 28.38 acres within the State of Nevada, purchased out of federal funds appropriated in 1917 and 1926 and occupied by several hundred Indians theretofore scattered throughout Nevada, was “Indian country” for the purposes of what was then 25 U. S. C. § 247. (the predecessor of 18 U. S. C. §3618 (1976 ed.)), providing for the forfeiture of a vehicle used to transport intoxicants into the Indian country. The Court noted that the “fundamental consideration of both Congress and the Department of the Interior in establishing this colony has been the protection of a dependent people.” 302 U. S., at 538. The principal test applied was drawn from an earlier case, United States v. Pelican, 232 U. S. 442 (1914), and was whether the land in question “had been validly set apart for the use of the Indians as such, under the superintendence of the Government.” Id., at 449; 302 U. S., at 539.

The Mississippi lands in question here were declared by Congress to be held in trust by the Federal Government for the benefit of the Mississippi Choctaw Indians who were at that time under federal supervision. There is no apparent reason why these lands, which had been purchased in previous years for the aid of those Indians, did not become a “reservation,” at least for the purposes of federal criminal jurisdiction at that particular time. See United States v. Celestine, 215 U. S. 278, 285 (1909). But if there were any doubt about the matter in 1939 when, as hereinabove described, Congress declared that title to lands previously purchased for the Mississippi Choctaws would be held in trust, the situation was completely clarified by the proclamation in 1944 of a reservation and the subsequent approval of the constitution and bylaws adopted by the Mississippi Band.

The Court of Appeals and the Mississippi Supreme Court held, and the State now argues, that the 1944 proclamation had no effect because the Indian Reorganization Act of 1934 was not intended to apply to the Mississippi Choctaws. Assuming for the moment that authority for the proclamation can be found only in the 1934 Act, we find this argument unpersuasive. The 1934 Act defined “Indians” not only as “all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction,” and their descendants who then were residing on any Indian reservation, but also as “all other persons of one-half or more Indian blood.” 48 Stat. 988, 25 U. S. C. § 479 (1976 ed.). There is no doubt that persons of this description lived in Mississippi, and were recognized as such by Congress and by the Department of the Interior, at the time the Act was passed. The references to the Mississippi Choctaws in the legislative history of the Act, see supra, at 645-646, confirm our view that the Mississippi Choctaws were not to be excepted from the general operation of the 1934 Act.

IV

Mississippi appears to concede, Brief for Appellee in No. 77-575, p. 44, that if § 1153 provides a basis for the prosecution of Smith John for the offense charged, the State has no similar jurisdiction. This concession, based on the assumption that § 1153 ordinarily is pre-emptive of state jurisdiction when it applies, seems to us to be correct. It was a necessary premise of at least one of our earlier decisions. Seymour v. Superintendent, 368 U. S. 351 (1962). See also Williams v. Lee, 358 U. S. 217, 220, and n. 5 (1959); Rice v. Olson, 324 U. S. 786 (1945); In re Carmen’s Petition, 165 F. Supp. 942 (ND Cal. 1958), aff’d sub nom. Dickson v. Carmen, 270 F. 2d 809 (CA9 1959), cert. denied, 361 U. S. 934 (1960).

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

We assume for purposes of argument, as does the United States, that there have been times when Mississippi’s jurisdiction over the Choctaws and their lands went unchallenged. But, particularly in view of the elaborate history, recounted above, of relations between the Mississippi Choctaws and the United States, we do not agree that Congress and the Executive Branch have less power to deal with the affairs of the Mississippi Choctaws than with the affairs of other Indian groups. Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not been continuous, destroys the federal power to deal with them. United States v. Wright, 53 F. 2d 300 (CA4 1931), cert. denied, 285 U. S. 539 (1932).

The State also argues that the Federal Government may not deal specially with the Indians within the State’s boundaries because to do so would be inconsistent with the Treaty at Dancing Rabbit Creek. This argument may seem to be a cruel joke to those familiar with the history of the execution of that treaty, and of the treaties that renegotiated claims arising from it. See supra, at 640-643. And even if that treaty were the only source regarding the status of these Indians in federal law, we see nothing in it inconsistent with the continued federal supervision of them under the Commerce Clause. It is true that this treaty anticipated that each of those electing to remain in Mississippi would become “a citizen of the States,” but the extension of citizenship status to Indans does not, in itself, end the powers given Congress to deal with them. See United States v. Celestine, 215 U. S. 278 (1909).

y

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

It is so ordered.

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

       At the time of the alleged offense, 18 U. S. C. § 1153 read:
      “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
      “As used in this section, the offenses of rape and assault with intent to commit rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offenses of rape or assault with intent to commit rape upon any female Indian within the Indian country shall be imprisoned at the discretion of the court.
      “As used in this section, the offenses of burglary, assault with a dangerous weapon, assault resulting in serious bodily injury, and incest shall be defined and punished in accordance with the laws of the State in which such offense was committed.”
      This section has since been amended by the Indian Crimes Act of 1976, 90 Stat. 685, which added kidnaping to the list of offenses covered and made changes, not pertinent to these eases, in the ways in which state law is incorporated. Section 113, the statute specifying punishment for assaults committed -within the special territorial jurisdiction of the United States, including those for which federal prosecutions are authorized by § 1153, was also amended by the same Act. See H. R. Rep. No. 94^1038 (1976) ; S. Rep. No. 9^620 (1976).

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

       Harry Smith John was also jointly charged with his father under the Mississippi indictment, and was convicted. As stated above, counsel for Harry Smith John concedes that the death of Harry Smith John on February 18, 1978, renders the state case moot as to him. Brief for John et al. 1.

      Treaty at Fort Adams, 7 Stat. 66 (1801) (2% million aeres ceded); Treaty at Fort Confederation, 7 Stat. 73 (1802) (establishment of boundaries generally); Treaty at Hoe-Buckin-too-pa, 7 Stat. 80 (1803) (900,000 acres in conformity with the Fort Confederation agreement); Treaty at Mount Dexter, 7 Stat. 98 (1805) (4 million acres); Treaty at Fort St. Stephens, 7 Stat. 152 (1816) (ceding a relatively small tract where Columbus, Miss., now stands). See A. DeRosier, Jr., The Removal of the Choctaw Indians 29 (1970).

       Andrew Jackson had been one of the two commissioners sent to negotiate the Treaty at Doak’s Stand. From the land ceded by the Choctaws under that treaty, a new state capital, to be named Jackson, was planned. P. Fortune, The Formative Period, in 1 A History of Mississippi 255 (R. McLemore ed., 1973). Jackson’s position with regard to the removal of the Indians played a significant role in his Presidential election and in his popularity in Mississippi. Id., at 277. See generally DeRosier, supra n. 5, at 100-115; M. Young, Redskins, Rufileshirts, and Rednecks: Indian Allotments in Alabama and Mississippi, 1830-1860, pp. 14-21 (1961); G. Foreman, Indian Removal: The Emigration of the Five Civilized Tribes of Indians 21 (1953 ed.); F. Cohen, Handbook of Federal Indian Law 56-59 (1941); Prucha, Andrew Jackson’s Indian Policy: A Reassessment, 56 J. of Am. Hist. 527 (1969).

       See, e. g., 6 Cong. Deb. 585 (1830). These debates culminated on May 28, 1830, in the passage of the Indian Removal Bill. 4 Stat. 411. See generally A. Abel, The History of Events Resulting in Indian Consolidation West of the Mississippi River, in 1906 Annual Report of the American Historical Assn. 377-382 (1908). They also set the stage for the constitutional crisis surrounding this Court's decision in Worcester v. Georgia, 6 Pet. 515 (1832), that the States had no power over the Indians and the Indian lands within their boundaries. See generally Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan. L. Rev. 500 (1969); Miles, After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis, 39 J. of So. Hist. 619 (1973).

       Perhaps the best evidence of the circumstances surrounding this treaty-lies in its very words. As signed by the Choctaws, it contained the following preamble:
      “Whereas the General Assembly of the State of Mississippi has extended the laws of said State to persons and property within the chartered limits of the [Choctaw lands], and the President of the United States has said that he cannot protect the Choctaw people from the operation of these laws; Now therefore that the Choctaw may live under their own laws in peace with the United States and the State of Mississippi they have determined to sell their lands east of the Mississippi and have accordingly agreed to the following articles of treaty.”
      The preamble was stricken from the treaty as ratified by the Senate. 7 Cong. Deb. 346-347 (1831).

       See generally Chitto v. United States, 133 Ct. Cl. 643, 138 F. Supp. 253, cert. denied, 352 U. S. 841 (1956); Young, supra n. 6, at 47-72; Riley, Choctaw Land Claims, 8 Publications of the Mississippi Historical Society 345 (1904).
      It is generally acknowledged that, whether anxious to conceal the fact that far more Choctaws had remained in Mississippi than he had anticipated originally, or simply because he was disinterested in his job and generally dissolute, the agent in charge of the task refused to record the claims of those who elected to remain. See, e. g., Coleman v. Doe, 12 Miss. 40 (1844); Chitto v. United States, 133 Ct. Cl., at 648-649, 138 F. Supp., at 257. Speculators soon began pressing the cause of those who had been refused. Perhaps in large part due to their efforts, and the cloud created on the ceded lands as they were put up for sale without the proper recordation of Indian claims, Congress soon authorized investigation of the situation. See 7 American State Papers, Public Lands 448-525 (1860); H. R. Rep. No. 663, 24th Cong., 1st Sess. (1836).
      Although one might wonder whether it was concern for the preservation of the claims for the Indians, or simply concern for the preservation of the claims, that motivated subsequent events, measures were taken to remedy the situation and to provide substitute lands for the Choctaws to replace those lands sold despite their attempt to file claims. One measure provided that the claimants would be issued scrip enabling them to claim substitute lands, but half the scrip was not to be delivered unless the claimants removed to territory west of the Mississippi. Act of Aug. 23, 1842, 5 Stat. 513.
      The administration of this statute was as unsuccessful as had been the administration of the original treaty. It appears that in practice, none of the scrip was delivered before removal, Chitto v. United States, 133 Ct. Cl., at 649, 138 F. Supp., at 257, and that Congress later established a fund to be paid in lieu of part of the scrip. 5 Stat. 777 (1845). After an attempt at settlement in 1852 proved unsuccessful, the United States and the Choctaws in Oklahoma in 1855 entered into still another treaty that provided that the Senate would make a determination of the amounts owing to the Choctaws generally for the failure of the United States to abide by its various treaty promises. Treaty of June 22, 1855, 11 Stat. 611. In March 1859, the Senate approved the general formula under which those amounts were to be calculated, Cong. Globe, 35th Cong., 2d Sess., 1691; S. Rep. No. 374, 35th Cong., 2d Sess. (1859), and the Secretary of the Interior, pursuant to this direction, computed the total to be almost $3 million. See H. R. Exec. Doe. No. 82, 36th Cong., 1st Sess. (1860), reprinted in H. R. Rep. No. 251, 45th Cong., 2d Sess., 12 (1878). The War Between the States interrupted the payment of this Senate award, and, after the war, the Choctaws found themselves forced to prove their claims once again, this time in the federal courts. See Choctaw Nation v. United States, 119 U. S. 1 (1886), rev’g 21 Ct. Cl. 59.

         See generally DeRosier, supra n. 5, at 129-167; Wright, The Removal of the Choctaws to the Indian Territory 1830-1833, 6 Chronicles of Oklahoma 103 (1928); A. Debo, The Rise and Fall of the Choctaw Republic 56 (2d ed. 1961); n. 9, supra.

       The potential right of the Choctaws who had not removed to participate in any general allotment of the Oklahoma lands was acknowledged in the treaty entered into by the United States and the Choctaws and Chickasaws at the close of the war. 14 Stat. 774 (1866). But a new series of frauds and speculation made implementation of this policy difficult when the allotment eventually took place. See the essentially contemporaneous account of these events provided in Wade, The Removal of the 397 (1904). In response to a flood of claims of those purporting to be Mississippi Choctaws to whom a portion of its holdings in Oklahoma should be distributed, the Choctaw Nation resisted attempts to include Mississippi Choctaws on its rolls. Between 1897 and 1907, when the Choctaw rolls were finally closed, repeated efforts were made by the Dawes Commission, and by Congress, to determine the appropriate criteria for enrollment of the Mississippi Choctaws, and their participation in the allotment. Again, any participation was conditioned on removal from Mississippi. See the complete account of these efforts in Estate of Winton v. Amos, 51 Ct. Cl. 284 (1916), rev’d in part and aff’d in part, 255 U. S. 373 (1921).

       40 Stat. 573 (1918). See Hearings on Indian Appropriation Bill before a Subcommittee of the House Committee on Indian Affairs, 65th Cong., 2d Sess., 153, 175-176 (1918).
      Shortly after this appropriation was made, Cato Sells, Commissioner of Indian Affairs, traveled to Mississippi to gain firsthand information about the Indians there. In his annual report, he observed:
      “Practically all of the Mississippi Choctaws are full-bloods. Very few own their homes. They are almost entirely farm laborers or share croppers. They are industrious, honest, and necessarily frugal. Most of them barely exist, and some suffer from want of the necessaries of life and medical aid. In many of the homes visited by me there was conspicuous evidence of pitiable poverty. I discovered families with from three to five children, of proper age, not one of whom had spent a day of their life in school. With very few exceptions they indicated willingness to go to school, as did their parents to send them. Several young Choctaw boys and girls expressed an ardent desire for an education.” Report of the Commissioner of Indian Affairs, in 2 Reports of the Department of the Interior, 1918, pp. 79-80 (1919).

       41 Stat. 15 (1919); 41 Stat. 420 (1920); 41 Stat. 1236 (1921); 42 Stat. 570 (1922); 42 Stat. 1191 (1923); 43 Stat. 409 (1924); 43 Stat. 1149, 1155, 1159 (1925); 44 Stat. 461, 468, 472 (1926); 44 Stat. 941, 947, 951 (1927); 45 Stat. 206, 216, 220 (1928); 45 Stat. 1568, 1578, 1581 (1929); 46 Stat. 286, 299 (1930); 46 Stat. 1121, 1135 (1931); 47 Stat. 109 (1932).

       By its language, the 1939 Act affected only those lands that were “not under contract for resale to Choctaw Indians, or on which existing contracts of resale may hereafter be canceled.” The 1944 Proclamation of Reservation recited specifically that it was issued “by virtue of the authority contained in the act of June 21,1939, and in section 7 of the act of June 18, 1934,” and that no such acquired lands were covered by any outstanding contract “for the resale of any part thereof to any Choctaw or other Indian.”

       This constitution has since been amended in response to the Indian Civil Rights Act of 1968, 25 U. S. C. § 1301 et seq. (1976 ed.).

       As originally enacted, the Major Crimes Act made no reference to “Indian country” but, instead, referred to any “reservation” within the States and the Territories. See n. 22, infra. The legislation retained this general form when it was re-enacted as § 328 of the Criminal Code of 1909, 35 Stat. 1151 (codified from 1926 to 1948 as 18 U. S. C. §548), and amended, 47 Stat. 336 (1932) (adding incest to the list of crimes covered, deleting the reference to the Territories, and providing expressly that rights of way running through a reservation were to be included as part of the reservation).
      In the 1948 revision of Title 18, however, the express reference to “reservation” was deleted in favor of the use of the term “Indian country,” which was used in most of the other special statutes referring to Indians, and as defined in § 1151. See Reviser’s Note, and n. 18, infra.

      The Act has since been amended four times, 63 Stat. 94 (1949) (relating to the punishment for the crime of rape); 80 Stat. 1100 (1966) (adding carnal knowledge and assault with intent to rape); 82 Stat. 80 (1968) (adding assault resulting in serious bodily injury); 90 Stat. 585 (1976) (see n. 2, supra), but its form has not been changed substantially.

       The second category for inclusion within the definition of “Indian country” is “all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State.” The third category is “all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” Inasmuch as we find in the first category a sufficient basis for the exercise of federal jurisdiction in this ease, we need not consider the second and third categories.

       Some earlier cases had suggested a more technical and limited definition of “Indian country.” See, e. g., Bates v. Clark, 95 U. S. 204 (1877). Throughout most of the 19th century, apparently the only statutory definition was that in § 1 of the Act of June 30, 1834, 4 Stat. 729. But this definition was dropped in the compilation of the Revised Statutes. See Ex parte Crow Dog, 109 U. S. 556 (1883). This Court was left with little choice but to continue to apply the principles established under the earlier statutory language and to develop them according to changing conditions. See* e. g., Donnelly v. United States, 228 U. S. 243 (1913). It is the more expansive scope of the term that was incorporated in the 1948 revision of Title 18.

       A report completed just after the passage of the Act recounts:
      “After all the years of living in and among both white and colored race, it is indeed surprising to find that approximately 85 percent of this group are full bloods. Their racial integrity is intact in spite of the absence of permanent holdings or any sort of community life. Many of the older Choctaws do not speak English.” E. Groves, Notes on the Choctaw Indians, Feb. 20-Mar. 20, 1936, p. 1 (Bureau of Indian Affairs).

       The State of Mississippi makes much of a sentence contained in an unpublished memorandum dated August 31, 1936, of the Solicitor for the Department of the Interior. It reads: “They [the Indians remaining in Mississippi] cannot now be regarded as a tribe.” See F. Cohen, Handbook of Federal Indian Law 273 (1941). A reading of the entire memorandum, however, convinces us that it supports the position of the United States in this case. The memorandum was concerned only with the proper description of the Indians in the deeds relating to lands purchased according to the provisions of the Indian Reorganization Act. At least one deed had been prepared designating the grantee as “the United States in trust for the Choctaw tribe of Mississippi.” The memorandum recommended that, because the Indians could not be regarded as a tribe at that time, the deeds be written designating the grantee as “[t]he United States in trust for such Choctaw Indians of one-half or more Indian blood, resident in Mississippi, as shall be designated by the Secretary of the Interior, until such time as the Choctaw Indians of Mississippi shall be organized as an Indian tribe pursuant to the act of June 18, 1934 (48 Stat. 984) [the Indian Reorganization Act], and then in trust for such organized tribe.” Surely this is evidence that although there was no legal entity known as “the Choctaw tribe of Mississippi,” the Department of the Interior anticipated that a more formal legal entity, a tribe for the purposes of federal Indian law, soon would exist.

       W.e do not consider here the more disputed question whether § 1153 also was intended to pre-empt tribal jurisdiction. See Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 203-204, n. 14 (1978); United States v. Wheeler, 435 U. S. 313, 325 n. 22 (1978).

       There is much in the legislative history to support this view. The Major Crimes Act was approved on March 3, 1885, 23 Stat. 385, in part in response to the decision of this Court in Ex parte Crow Dog, 109 U. S. 556 (1883). See United States v. Kagama, 118 U. S. 375, 382-383 (1886). As originally proposed in the House, the bill provided that Indians committing the specified crimes “within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes,” and, similarly, that Indians committing the same crimes “within the boundaries of any State of the United States, and either within or without an Indian reservation, shall be subject to the same laws ... as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States'.” 16 Cong. Rec. 934 (1885).
      It became apparent in conference on the bill that this language would have a far broader effect than originally intended, for the language proposed would “take away from State courts, whether there be a reservation in the State or not” jurisdiction over the listed crimes when committed by an Indian. Id., at 2385. The provision was then amended to read “all such Indians committing any of the above crimes . . . within the boundaries of any State of the United States, and within the limits of any Indian reservation,” and was agreed to with this change.

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

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


source: Caselaw Access Project

author: Mr. Justice Rehnquist Mr. Justice Blackmun, Mr. Chief Justice Burger, Mr. Justice Brennan,

license: Public Domain

text:
    WILL, U. S. DISTRICT JUDGE v. CALVERT FIRE INSURANCE CO. et al.
    No. 77-693.
    Argued April 19, 1978
    Decided June 23, 1978

      Rehnquist, J., announced the Court’s judgment and delivered an opinion, in which Stewart, White, and Stevens, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 667. Burger, C. J., filed a dissenting opinion, post, p. 668. Brennan, J., filed a dissenting opinion, in which Burger, C. J., and Marshall and Powell, JJ., joined, post, p. 668.

      Milton V. Freeman argued the cause for petitioner.' With him on the briefs were Dennis G. Lyons, Werner J. Kronstein, and Stanley A. Kaplan.

      Louis Loss argued the cause for respondent Calvert Fire Insurance Co. With him on the brief was Michael L. Weiss-man. Thomas J. Weithers and D. Kendall Griffith filed a brief for American Mutual Reinsurance Co., respondent under this Court’s Rule 21 (4), in support of petitioner.
   Mr. Justice Rehnquist

announced the judgment of the Court, and delivered an opinion in which Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Stevens joined.

On August 15, 1977, the Court of Appeals for the Seventh Circuit granted a petition for writ of mandamus ordering petitioner, a judge of the United States District Court for the Northern District of Illinois, “to proceed immediately” to adjudicate a claim based upon the Securities Exchange Act of 1934 and brought by respondent, Calvert Fire Insurance Co., against American Mutual Reinsurance Co., despite the pendency of a substantially identical proceeding between the same parties in the Illinois state courts. 560 F. 2d 792, 797. The Court of Appeals felt that our recent decision in Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976), compelled the issuance of the writ. We granted certiorari to consider the propriety of the use of mandamus to review a District Court’s decision to defer to concurrent state proceedings, 434 U. S. 1008, and we now reverse.

I

Respondent Calvert writes property and casualty insurance. American Mutual operates a reinsurance pool whereby a number of primary insurers protect themselves against unanticipated losses. Membership in the pool requires both the payment of premiums by pool members and indemnification of the pool in the event that losses exceed those upon which the premiums are calculated. Calvert joined the pool in early 1974, but in April of that year notified American Mutual of its election to rescind the agreement by which it became a member.

In July 1974, American Mutual sued in the Circuit Court of Cook County, Ill., to obtain a declaration that the pool agreement between it and Calvert was in full force and effect. Six months later, Calvert in its answer to that suit asserted that the pool agreement was not enforceable against it because of violations by American Mutual of the Securities Act of 1933, the Securities Exchange Act of 1934, the Illinois Securities Act, the Maryland Securities Law, and the state common law of fraud. With its answer Calvert filed a counterclaim seeking $2 million in damages from American Mutual on all of the grounds that it set up in defense except for the defense based on the Securities Exchange Act of 1934. Since § 27 of that Act, 48 Stat. 902, as amended, 15 U. S. C. § 78aa (1976 ed.), granted the district courts of the United States exclusive jurisdiction to enforce the Act, Calvert on the same day filed a complaint in the United States District Court for the Northern District of Illinois seeking damages from American Mutual for an alleged violation of Rule 10b-5, 17 CFR § 240.10b-5 (1977), issued under § 10 (b) of the Act, 15 U. S. C. § 78j (b) (1976 ed.). Joined with this Rule 10b-5 count were claims based on each of the other grounds asserted by it in defense to American Mutual’s state-court action.

In February 1975, more than seven months after it had begun its state-court action, but less than one month after Calvert had filed its answer and counterclaim in that action and its complaint in the federal court, American Mutual moved to dismiss or abate the latter. The claim for dismissal was based on the substantive assertion that the reinsurance agreement was not a “security” within the meaning of the 1933 or 1934 Act. The motion to abate was based on the fact that the state proceedings commenced six months before the federal proceedings included every claim and defense except the claim for damages based on Rule 10b-5 under the 1934 Act.

In May 1975, Judge Will substantially granted American Mutual’s motion to defer the federal proceeding until the completion of the state proceedings, observing that a tentative trial date had already been set by the state court. Federal litigation of the same issues would therefore be duplicatiye and wasteful. He rejected Calvert’s contention that the court should proceed with the entire case because of its exclusive jurisdiction under the 1934 Act, noting that the state court was bound to provide the equitable relief sought by Calvert by recognizing a valid Rule 10b-5 claim as a defense to the state action. Only Calvert’s claim for damages under Rule 10b-5 was subject to the exclusive jurisdiction of the federal court. Petitioner therefore stayed all aspects of Calvert’s federal action subject to' the concurrent jurisdiction of both courts, recognizing “only Calvert’s very limited claim for monetary damages under the 1934 Securities Act as a viable claim in this court.” App. to Pet. for Cert. B-9. On May 9, 1975, Judge Will heard oral argument on the basic question of whether Calvert's interest in the reinsurance pool is a security within the meaning of the 1934 Act. He has not yet rendered a decision on that issue.

Judge Will rejected two motions to reconsider his stay order and refused to certify an interlocutory appeal pursuant to 28 U. S. C. § 1292 (b). On May 26, 1976, Calvert petitioned the Court of Appeals for the Seventh Circuit for a writ of mandamus directing Judge Will to proceed to adjudicate its Rule 10b-5 claims. Nearly 14 months later, on August 15, 1977, the Court of Appeals granted the petition and directed Judge Will to “proceed immediately with Calvert's claim for damages and equitable relief under the Securities Exchange Act of 1934.” 560 F. 2d, at 797.

We granted certiorari to consider Judge Will's contention that the issuance of the writ of mandamus impermissibly-interfered with the discretion of a district court to control its own docket. 434 U. S. 1008 (1978).

II

The correct disposition of this case hinges in large part on the appropriate standard of inquiry to be employed by a court of appeals in determining whether to issue a writ of mandamus to a district court. On direct appeal, a court of appeals has broad authority to “modify, vacate, set aside or reverse” an order of a district court, and it may direct such further action on remand “as may be just under the circumstances.” 28 U. S. C. § 2106. By contrast, under the All Writs Act, 28 U. S. C. § 1651 (a), courts of appeals may issue a writ of mandamus only when “necessary or appropriate in aid of their respective jurisdictions.” Whereas a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances “would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.” Will v. United States, 389 U. S. 90, 98 n. 6 (1967).

As we have repeatedly reaffirmed in cases such as Kerr v. United States District Court, 426 U. S. 394, 402 (1976), and Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382 (1953), the “traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Calvert makes no contention that petitioner has exceeded the bounds of his jurisdiction. Rather, it contends that the District Court, in entering the stay order, has refused “to exercise its authority when it is its duty to do so.” Ibid. There can be no doubt that, where a district court persistently and without reason refuses to adjudicate a case properly before it, the court of appeals may issue the writ “in order that [it] may exercise the jurisdiction of review given by law.” Insurance Co. v. Comstock, 16 Wall. 258, 270 (1873). “Otherwise the appellate jurisdiction could be defeated and the purpose of the statute authorizing the writ thwarted by unauthorized action of the district court obstructing the appeal.” Roche, supra, at 25:

To say that a court of appeals has the power to direct a district court to proceed to judgment in a pending case “when it is its duty to do so,” 319 U. S., at 26, states the standard but does not decide this or any other particular case. It is essential that the moving party satisfy “the burden of showing that its right to issuance of the writ is 'clear and indisputable.' ” Bankers Life & Cas. Co., supra, at 384, quoting United States v. Duell, 172 U. S. 576, 582 (1899). Judge Will urges that Calvert does not have a “clear and indisputable” right to the adjudication of its claims in the District Court without regard to the concurrent state proceedings. To that issue we now must turn.

Ill

It is well established that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” McClellan v. Carland, 217 U. S. 268, 282 (1910). It is equally well settled that a district court is “under no compulsion to exercise that jurisdiction,” Brillhart v. Excess Ins. Co., 316 U. S. 491, 494 (1942), where the controversy may be settled more expeditiously in the state court. Although most of our decisions discussing the propriety of stays or dismissals of duplicative actions have concerned conflicts of jurisdiction between two federal district courts, e. g., Kerotest Mfg. Co., v. C-O-Two Fire Equipment Co., 342 U. S. 180 (1952); Landis v. North American Co., 299 U. S. 248 (1936), we have recognized the relevance of those cases in the analogous circumstances presented here. See Colorado River, 424 U. S., at 817-819. In both situations, the decision is largely committed to the “carefully considered judgment,” id., at 818, of the district court.

This power has not always been so clear. In McClellan, on facts similar to those presented here, this Court indicated that the writ might properly issue where the District Court had stayed its proceedings in deference to concurrent state proceedings. Such an automatic exercise of authority may well have been appropriate in a day when Congress had authorized fewer claims for relief in the federal courts, so that duplicative litigation and the concomitant tension between state and federal courts could rarely result. However, as the overlap between state claims and federal claims increased, this Court soon recognized that situations would often arise when it would be appropriate to defer to the state courts.

“Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided.” Brillhart, supra, at 495.

The decision in such circumstances is largely committed to the discretion of the district court. 316 U. S., at 494. Furthermore, Colorado River, supra, at 820, established that such deference may be equally appropriate even when matters of substantive federal law are involved in the case.

It is true that Colorado River emphasized “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” 424 U. S., at 817. That language underscores our conviction that a district court should exercise its discretion with this factor in mind, but it in no way undermines the conclusion of Brillhart that the decision whether to defer to the concurrent jurisdiction of a state court is, in the last analysis, a matter committed to the district court's discretion. Seizing upon the phrase “unflagging obligation” in an opinion which upheld the correctness of a district court’s final decision to dismiss because of concurrent jurisdiction does little to bolster a claim for the extraordinary writ of mandamus in a case such as this where the District Court has rendered no final decision.

We think it of considerably more importance than did the Court of Appeals that Colorado River came before the Court of Appeals on appeal pursuant to 28 U. S. C. § 1291 following outright dismissal of the action by the District Court, rather than through an effort on the part of the federal-court plaintiff to seek mandamus. Calvert contends here, and the Court of Appeals for the Seventh Circuit agreed, that Judge Will’s order deferring the federal proceedings was “equivalent to a dismissal.” 560 F. 2d, at 796. We are loath to rest our analysis on this ubiquitous phrase, for if used carelessly or without a precise definition it may impede rather than assist sound resolution of the underlying legal issue.

Obviously, if Judge Will had dismissed Calvert’s action Calvert could have appealed the order of dismissal to the Court of Appeals, which could have required such action of Judge Will “as may be just under the circumstances.” 28 U. S. C. § 2106. Since he did not dismiss the action, Calvert remained free to urge reconsideration of his decision to defer based on new information as to the progress of the state case; to this extent, at least, deferral was not “equivalent to a dismissal.”

There are sound reasons for our reiteration of the rule that a district court’s decision to defer proceedings because of concurrent state litigation is generally committed to the discretion of that court. No one can seriously contend that a busy federal trial judge, confronted both with competing demands on his time for matters properly within his jurisdiction and with inevitable scheduling difficulties because of the unavailability of lawyers, parties, and witnesses, is not entrusted with a wide latitude in setting his own calendar. Had Judge Will simply decided on his own initiative to defer setting this case for trial until the state proceedings were completed, his action would-have been the “equivalent” of granting the motion of American Mutual to defer, yet such action would at best have afforded Calvert a highly dubious claim for mandamus. We think the fact that the judge accomplished this same result by ruling favorably on a party’s motion to defer does not change the underlying legal question.

Although the District Court’s exercise of its discretion may be subject to review and modification in a proper interlocutory appeal, cf. Landis, 299 U. S., at 256-259, we are convinced that it ought not to be overridden by a writ of mandamus. Where a matter is committed to the discretion of a district court, it cannot be said that a litigant’s right to a particular result is “clear and indisputable.”

Calvert contends that a district court is without power to stay proceedings, in deference to a contemporaneous state action, where the federal courts have exclusive jurisdiction over the issue presented. Whether or not this is so, petitioner has not purported to stay consideration of Calvert’s claim for damages under the Securities Exchange Act of 1934, which is the only issue which may not be concurrently resolved by both courts. It is true that petitioner has not yet ruled upon this claim. Where a district court obstinately refuses to adjudicate a matter properly before it, a court of appeals may issue the writ to correct “unauthorized action of the district court obstructing the appeal.” Roche, 319 U. S., at 25, citing Ex parte United States, 287 U. S. 241 (1932). Calvert, however, has neither alleged nor proved such a heedless refusal to proceed as a basis for the issuance of the writ here. Its petition offers only the bare allegation that Judge Will “in effect” abated the damages claim in deference to the state proceedings. App. 12. Judge Will has never issued such an order, and the sparse record before us will not support any such inference. So far as appears, the delay in adjudicating the damages claim is simply a product of the normal excessive load of business in the District Court, compounded by “the unfortunate consequence of making the judge a litigant” in this mandamus proceeding. Ex parte Fahey, 332 U. S. 258, 260 (1947).

The judgment of the Court of Appeals is therefore

Reversed.

Mr. Justice Blackmun,

concurring in the judgment.

The plurality’s opinion, ante, at 662-663, appears to me to indicate that it now regards as fully compatible the Court’s decisions in Brillhart v. Excess Ins. Co., 316 U. S. 491 (1942), a diversity case, and Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976), a federal-issue case. I am not at all sure that this is so. I — as were Mr. Justice Stewart and Mr. Justice Stevens — was in dissent in Colorado River, and if the holding in that case is what I think it is, and if one assumes, as I do not, that Brillhart has any application here, the Court cut back on Mr. Justice Frankfurter’s rather sweeping language in Brillhart, 316 U. S., at 494-495.

Because Judge Will’s stay order was issued prior to this Court’s decision in Colorado River, and he therefore did not have such guidance as that case affords in the area, I join in the Court’s reversal of the Court of Appeals’ issuance of a writ of mandamus. The issuance was premature. The Court of Appeals should have done no more than require reconsideration of the case by Judge Will in light of Colorado River.

Mr. Chief Justice Burger,

dissenting.

I am in general agreement with Mr. Justice Brennan’s dissenting opinion. I write separately only to emphasize that I consider it unnecessary to determine in the context of this case whether it would ever be appropriate to give res judicata effect to a state-court judgment implicating a claim over which the federal courts have been given exclusive jurisdiction. Our concern here is simply with the propriety of a federal court’s delaying adjudication of such a claim in deference to a state-court proceeding. As Mr. Justice Brennan correctly notes, whatever the proper resolution of the res judicata issue, a federal court remains under an obligation to expeditiously consider and resolve those claims which Congress explicitly reserved to the federal courts. With this minor caveat, I join Mr. Justice Brennan in his dissent.

Mr. Justice Brennan,

with whom The Chief Justice, Mr. Justice Marshall, and Mr. Justice Powell join, dissenting.

This case falls within none of the three general abstention categories, and the opinion of my Brother Rehnquist therefore strains to bring it within the principles that govern in a very narrow class of “exceptional” situations that involve “the contemporaneous exercise of concurrent jurisdictions.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 813-818 (1976). In so straining, the opinion reaches a result supported by neither policy nor precedent, ignores difficult legal issues, misapprehends the significance of the proceedings below, and casts doubt upon a decision that has stood unquestioned for nearly 70 years. Moreover, there lurks an ominous potential for the abdication of federal-court jurisdiction in the opinion’s disturbing indifference to “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” id., at 817 — for obedience to that obligation becomes all the more important when, as here, Congress has made that jurisdiction exclusive. I dissent.

I

Because this case came to the Court of Appeals on respondent Calvert Fire Insurance Co.’s motion for a writ of mandamus to compel Judge Will to adjudicate its claims for damages and equitable relief under the Securities Exchange Act of 1934 (1934 Act), I agree with my Brother Rehnquist that it is essential to determine precisely what obligation the District Court had to adjudicate respondent’s 1934 Act claims. That, however, is as far as my agreement goes.

On the same day Calvert filed its answer to the state suit instituted against it — an answer containing a defense under the 1934 Act that the state court was required to recognize under the Supremacy Clause — it commenced an action in Federal District Court seeking relief under the 1934 Act, the Securities Act of 1933, and various state provisions. The District Court stayed all claims alleged in this complaint, other than Calvert’s claim for money damages under Rule 10b-5 of the 1934 Act, pending the outcome of the state suit. Although the District Court did not formally stay the Rule 10b-5 damages claim and heard oral argument on the primary issue underlying the claim — whether a participatory interest in a reinsurance pool is a “security” — the District Court has yet to rule on this issue, so Calvert’s Rule 10b-5 damages claim, like the rest of its federal suit, remains in suspension.

Section 27 of the 1934 Act, 15 U. S. C. § 78aa (1976 ed.), gives the federal courts exclusive jurisdiction over claims arising under the Act. This jurisdictional grant evinces a legislative desire for the uniform determination of such claims by tribunals expert in the administration of federal laws and sensitive to the national concerns underlying them. When Congress thus mandates that only federal courts shall exercise jurisdiction to adjudicate specified claims, the “well established” principle — accepted by my Brother Rkhnquist, ante, at 662 — of McClellan v. Carland, 217 U. S. 268, 282 (1910), that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,” governs a multo fortiori. Yet, relying on the completely inapposite case of Brillhart v. Excess Insurance Co., 316 U. S. 491 (1942), the opinion of my Brother Rkhnquist disregards the McClellan principle and all .but ignores the analysis set forth in Colorado River Water Conservation Dist. v. United States, supra, our most recent pronouncement on a district court’s authority to defer to a contemporaneous state proceeding.

In Brillhart, the District Court dismissed a diversity suit for a declaratory judgment because of the pendency in state court of a suit between the same parties and involving the same subject matter. The Court of Appeals reversed, holding that the dismissal was an abuse of discretion. In reversing the Court of Appeals, this Court reasoned:

“Although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction. The petitioner’s motion to dismiss the bill was addressed to the discretion of the court. Aetna Casualty Co. v. Quarles, 92 F. 2d 321; Maryland Casualty Co. v. Consumers Finance Service, 101 F. 2d 514; American Automobile Ins. Co. v. Freundt, 103 F. 2d 613 . . . . The motion rested upon the claim that, since another proceeding was pending in a state court in which all the matters in controversy between the parties could be fully adjudicated, a declaratory judgment in the federal court was unwarranted. The correctness of this claim was certainly relevant in determining whether the District Court should assume jurisdiction and proceed to determine the rights of the parties. Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed' by federal law, between the same parties.” Brillhart v. Excess Insurance Co., supra, at 494-495 (emphasis added).

As is readily apparent, crucial to this Court’s approval of the District Court’s dismissal of the suit in Brillhart were two factors absent here. First, because the federal suit was founded on diversity, state rather than federal law would govern the outcome of the federal suit. Second, and more significantly, the federal suit was for a declaratory judgment. Under the terms of the provision empowering federal courts to entertain declaratory judgment suits, 28 U. S. C. § 2201, the assumption of jurisdiction over such suits is discretionary. That section provides: “In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration . . . .” (Emphasis added.) It was primarily because federal jurisdiction over declaratory judgment suits is discretionary that Brillhart found the District Court’s deference to state-court proceedings permissible. This is clear from the lower court cas'es approvingly cited by Brillhart—American Automobile Insurance Co. v. Freundt, 103 F. 2d 613 (CA7 1939); Maryland Casualty Co. v. Consumers Finance Service, 101 F. 2d 514 (CA3 1938); and Aetna Casualty Co. v. Quarles, 92 F. 2d 321 (CA4 1937) — all of which emphasized that a district court’s discretion to dismiss a federal declaratory judgment suit in favor of a pending state suit is a product of the permissive nature of declaratory judgment jurisdiction. Obviously neither the logic nor the holding of Brillhart is pertinent where, as here, federal jurisdiction is not only non-discretionary, but exclusive.

The unpersuasive grope for supporting precedent in which the opinion of my Brother Rehnquist engages is especially lamentable in light of our decision only two Terms ago in Colorado River Water Conservation Dist. v. United States. In Colorado River we addressed the precise issue presented here: the circumstances in which it is appropriate for a federal district court to stay a proceeding before it in deference to a parallel state-court proceeding in situations falling within none of the traditional categories for federal abstention. We explained that, in contrast to situations in which jurisdiction is concurrent in two or more federal courts, where the action paralleling a federal suit is in a state court, the federal court’s power to dismiss the suit before it in deference to the parallel proceeding is limited by the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” 424 U. S., at 817. Because a federal district court’s power is so limited, the circumstances that justify federal-court inaction in deference to a state proceeding must be “exceptional.” Id., at 818. Just how “exceptional” such circumstances must be was made clear by our admonition that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention.” Ibid. Since we had previously noted that “ ‘[abdication of the obligation to decide cases can be justified under [the abstention] doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest,’ ” id., at 813, quoting County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 188-189 (1959), the circumstances warranting dismissal “for reasons of wise judicial administration” must be rare indeed.

Such rare circumstances were present in Colorado River. There, the decisive factor in favor of staying the concurrent federal proceedings was “[t]he clear federal policy,” evinced by the McCarran Amendment, of “avoid [ing the] piecemeal adjudication of water rights in a river system ... a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving [this] goa[l].” 424 U. S., at 819. No comparable federal policy favoring unitary state adjudication exists here. In fact, as evinced by the exclusive jurisdiction of the federal courts to determine 1934 Act claims, the relevant federal policy here is the precise opposite of that found to require deference to the concurrent state proceeding in Colorado River.

Ignoring wholesale the analytical framework set forth in Colorado River, whose vitality is not questioned, the opinion of my Brother Rehnquist seemingly focuses on one of the four secondary factors found to support the federal dismissal in that case — -the fact that the state proceedings were initiated before the federal suit — and finds that factor sufficient to insulate the District Court’s actions here from mandamus review. Even putting aside the opinion’s case-reading errors— its flouting of McClellan, its misreliance on Brillhart, and its misapplication of Colorado River — and analyzing this case on the opinion’s own erroneous terms, the conclusion is still compelled that the District Court had no authority to stay Calvert’s 1934 Act claims. Quite conveniently, the opinion of my Brother Rehnquist avoids any discussion of the possible res judicata or collateral-estoppel effects the state court’s determination of Calvert’s 1934 Act defense would have on Calvert’s 1934 Act claims for affirmative relief in federal court. To be sure, the preclusive effect of a state-court determination of a claim within the exclusive jurisdiction of the federal courts is an unresolved and difficult issue. See generally Note, Res Judicata: Exclusive Federal Jurisdiction and the Effect of Prior State-Court Determinations, 53 Va. L. Rev. 1360 (1967). For myself, I confess to serious doubt that it is ever appropriate to accord res judicata effect to a state-court determination of a claim over which the federal courts have exclusive jurisdiction; for surely state-court determinations should not disable federal courts from ruling de novo on purely legal questions surrounding such federal claims. See Cotler v. Inter- County Orthopaedic Assn., 526 F. 2d 537 (CA3 1975); McGough v. First Arlington National Bank, 519 F. 2d 552 (CA7 1975); Clark v. Watchie, 513 F. 2d 994 (CA9 1975). As recognized by Judge Learned Hand in Lyons v. Westinghouse Electric Co., 222 F. 2d 184, 189 (CA2 1955), “the grant to the district courts of exclusive jurisdiction over the action . . . should be taken to imply an immunity of their decisions from any prejudgment elsewhere.” I recognize that it may make sense, for reasons of fairness and judicial economy, to give collateral-estoppel effect to specific findings of historical facts by a state court’s adjudicating an exclusively federal claim raised as a defense, see Granader v. Public Bank, 417 F. 2d 75 (CA6 1969), but there are reasons why even such a limited preclusive effect should not be given state-court determinations. It is at least arguable that, in creating and defining a particular federal claim, Congress assumed that the claim would be litigated only in the context of federal-court procedure — a fair assumption when the claim is within exclusive federal jurisdiction. For example, Congress may have thought the liberal federal discovery procedures crucial to the proper determination of the factual disputes underlying the federal claim.

All this is not to say that I disagree with the refusal of the opinion of my Brother Rehn'quist to decide what preclusive effects the state court’s determination of Calvert’s Rule 10b-5 defense would have in Calvert’s federal action, so much as it is to expose the opinion’s error in failing even to consider the res judicata/collateral estoppel problem in evaluating the District Court’s obligation to adjudicate Calvert’s Rule 10b-5 claim. In my view, regardless of whether the state-court judgment would be given res judicata or collateral-estoppel effect, it was incumbent upon the District Court — at least in the absence of other overriding reasons — expeditiously to adjudicate at least Calvert’s 1934 Act claims. If res judicata effect is accorded the prior state-court judgment, the exclusive jurisdiction given the federal courts over 1934 Act claims would be effectively thwarted, and the policy of uniform and effective federal administration and interpretation of the 1934 Act frustrated. A stay having so undesirable a consequence could possibly be justified only by compelling circumstances absent here. On the other hand, if the state-court adjudication is not given res judicata or collateral-estoppel effect, the 1934 Act claims will have to be adjudicated in federal court in any event, and there would be no reason for staying the federal action since nothing that transpires in the state proceedings would affect the adjudication of the federal claims. Thus, regardless of the proper disposition of the res judicata/collateral estoppel question, it is clear that a district court should not stay claims over which the federal courts have exclusive jurisdiction. See Cotler v. Inter-County Orthopaedic Assn., supra; Lecor, Inc. v. United States District Court, 502 F. 2d 104 (CA9 1974).

II

Whether evaluated under the “clear abuse of discretion” standard set forth in La Buy v. Howes Leather Co., 352 U. S. 249, 257 (1957), or under the prong of Will v. United States, 389 U. S. 90, 95 (1967), and Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943), that permits the use of mandamus “to compel [an inferior court] to exercise its authority when it is its duty to do so,” the issuance of the writ of mandamus by the Court of Appeals was proper; there is simply a complete dearth of “exceptional” circumstances countervailing the District Court’s “unflagging obligation” to exercise its exclusive jurisdiction. The opinion of my Brother Rehnquist asserts, however, that the District Court “has not purported to stay consideration of Calvert’s claim for damages under the Securities Exchange Act of 1934,” but rather has simply “not yet ruled upon this claim.” Ante, at 666. While technically accurate, this characterization of the status of the proceedings below utterly ignores two important facts that shed more than a little illumination on the true procedural posture of this case. First, at the time the Court of Appeals granted the writ, Calvert’s Rule 10b-5 damages action had been before Judge Will for more than 2% years without a ruling on the basic legal issue underlying the claim. Second, and for me disposi-tive, the District Court indicated that it would give the state court’s determination that the disputed transaction did not involve a “security” within the meaning of the 1934 Act res judicata effect, App. to Brief for Respondent Calvert Fire Insurance Co. E-l, thereby depriving Calvert of a federal-court determination of a legal issue within the exclusive jurisdiction of the federal courts.

This Court has held that mandamus will lie to correct a district court’s improper deference to pending state-court proceedings, McClellan v. Carland, 217 U. S. 268 (1910), and to preserve a proper federal-court determination of a federal issue, Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959). Where, as here, both of these justifications are present, the propriety of the issuance of the writ cannot be questioned. I would affirm the Court of Appeals.

       Calvert's answer in the state action explicitly contended that it was “entitled to rescission of its purchase of the aforesaid security” because of the alleged Rule 10b-5 violation. App. to Pet. for Cert. D-5. It sought identical equitable relief in its federal complaint. Id., at E-6. See Weiner v. Shearson, Hammill & Co., 521 F. 2d 817, 822 (CA9 1975); Aetna State Bank v. Altheimer, 430 F. 2d 750, 754 (CA7 1970).

       The state court, however, has reached a decision on the issue. The Circuit Court concluded that the agreement was not a security, and therefore struck the federal issues from Calvert's answer and counterclaim. On an interlocutory appeal the Illinois Appellate Court affirmed, holding that the agreement was not a security within the meaning of either the 1933 or the 1934 Act and that, in any event, § 2 (b) of the McCarran-Ferguson Act, 15 U. S. C. § 1012 (b) (1976 ed.), exempted insurance from the reach of the federal securities laws. American Mutual Reinsurance Co. v. Calvert Fire Ins. Co., 52 Ill. App. 3d 922, 367 N. E. 2d 104 (1977), pet. for leave to appeal denied, No. 50,085 (Jan. 26, 1978), cert. denied, 436 U. S. 906 (1978).

       As already noted, the stay order did not apply to Calvert’s claim for damages under Rule 10b-5. Judge Will had stayed Calvert’s claim for equitable relief because the state court had jurisdiction to rescind the agreement by recognition of a Rule 10b-5 defense.
      The petition did not seek to require Judge Will to proceed with the state-law claims or the federal claim based on the 1933 Act. 560 F. 2d 792, 794 n. 2.

       Although Calvert’s petition addressed only its Rule 10b-5 claims, the court went on to note: “The logic behind our holding in this case supports the conclusion that the stay of 1933 Act claims, as well as the 1934 Act claims, was improper.” 560 F. 2d, at 797 n. 6.

       A classic example of the proper issuance of the writ to protect eventual appellate jurisdiction is Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336 (1976), in which a case had been remanded to the state courts on grounds utterly unauthorized by the controlling statute. The dissenters in that case urged that Congress had intended to bar all review of remand orders, not that mandamus would have been inappropriate absent such a bar. Id., at 354 (Rehnquist, J., joined by Burger, C. J., and Stewart, J., dissenting).

       This Court there held, not that the writ should issue, but that the Court of Appeals should have required the District Judge to show cause why the writ should not issue. Judge Carland presented an affidavit to this Court attempting to defend his stay order on the basis of substantially completed state proceedings. As that affidavit was not in the record before the Court of Appeals, this Court did not “pass upon the sufficiency of those proceedings to authorize the orders in question," 217 U. S., at 283, but directed the Court of Appeals to do so in the first instance.

         Although in at least one instance we approved the issuance of the writ upon a mere showing of abuse of discretion, La Buy v. Howes Leather Co., 352 U. S. 249, 257 (1957), we warned soon thereafter against the dangers of such a practice. “Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as 'abuse of discretion’ and 'want of power’ into interlocutory review of non-appealable orders on the mere ground that they may be erroneous.” Will v. United States, 389 U. S. 90, 98 n. 6 (1967).

        Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959), is not to the contrary. Both the Court and the dissenters agreed that mandamus should issue to protect a clear right to a jury trial. Id., at 511; ibid. (Stewart, J., dissenting). The Court simply concluded that it was “not permissible,” id., at 508, for the District Court to postpone a jury trial until after most of the relevant issues had been settled in an equitable action before the court. Here, we have repeatedly recognized that it is permissible for a district court to defer to the concurrent jurisdiction of a state court.

       That a litigant’s right 'to proceed with a duplicative action in a federal court can never be said to be “clear and indisputable” is made all the more apparent by our holding earlier this Term in General Atomic Co. v. Felter, 434 U. S. 12 (1977), that a state court lacks the power to restrain vexatious litigation in the federal courts. There, we reaffirmed the principle that “[fjederal courts are fully capable of preventing their misuse for purposes of harassment.” Id., at 19.

       The only other issue encompassed by the writ was Calvert’s Rule 10b-5 claim for equitable relief. It is not disputed here that the state court has jurisdiction to rescind the agreement as Calvert requests. That being conceded, we find no merit in Calvert’s further argument that the statutory grant of exclusive jurisdiction in any way distinguishes this aspect of the case from our earlier decisions in which both the state and federal courts had power to grant the desired relief.

      “Although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction. The petitioner’s motion to dismiss the bill was addressed to the discretion of the court. . . . The motion rested upon the claim that, since another proceeding was pending in a state court in which all the matters in controversy between the parties could be fully adjudicated, a declaratory judgment in the federal court was unwarranted. The correctness of this claim was certainly relevant in determining whether the District Court should assume jurisdiction and proceed to determine the rights of the parties. Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided.”

         See, e. g., Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 344-345 (1976); Meredith v. Winter Haven, 320 U. S. 228, 234-235 (1943).

       These decisions recognized, however, that even where a federal suit seeks only declaratory relief, a district court does not have unbridled authority to dismiss the action in deference to a concurrent state suit. For example, the court in Maryland Casualty Co. v. Consumers Finance Service, 101 F. 2d, at 515, observed:
      “The granting of the remedy of a declaratory judgment is . . . discretionary with the court and it may be refused if it will not finally settle the rights of the parties or if it is being sought merely to determine issues involved in cases already pending. Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F. 2d 321. It may not be refused, however, merely on the ground that another remedy is available ... or because of the pendency of another suit, if the controversy between the parties will not necessarily be determined in that suit.”

       Because the Court of Appeals held that “the district court should not have deferred to the state court on grounds of federalism in light of Colorado River," it found it unnecessary to “reach the difficult issue of whether the conclusion of the state proceedings would have a collateral estoppel effect on the Rule 10b-5 claim for damages over which the court had retained jurisdiction but declined to resolve.” 560 F. 2d 792, 797.