author: Me. Justice White Mr. Justice Rehnquist,

text:
    TAYLOR v. LOUISIANA
    No. 73-5744.
    Argued October 16, 1974
    Decided January 21, 1975
    White, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., concurred in the result. Rehnquist, J., filed a dissenting opinion, post, p. 538.

      William McM. King argued the cause and filed a brief for appellant.

      Kendall L. Vick, Assistant Attorney General of Louisiana, argued the cause for appellee. On the brief were William J. Guste, Jr., Attorney General, Walter Smith, and Woodrow W. Erwin.

   Me. Justice White

delivered the opinion of the Court.

When this case was tried, Art. VII, § 41, of the Louisiana Constitution, and Art. 402 of the Louisiana Code of Criminal Procedure provided that a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The constitutionality of these provisions is the issue in this case.

I

Appellant, Billy J. Taylor, was indicted by the grand jury of St. Tammany Parish, in the Twenty-second Judicial District of Louisiana, for aggravated kidnaping. On April 12, 1972, appellant moved the trial court to quash the petit jury venire drawn for the special criminal term beginning with his trial the following day. Appellant alleged that women were systematically excluded from the venire and that he would therefore be deprived of what he claimed to be his federal constitutional right to “a fair trial by jury of a representative segment of the community . . . .”

The Twenty-second Judicial District comprises the parishes of St. Tammany and Washington. The ap-pellee has stipulated that 53% of the persons eligible for jury service in these parishes were female, and that no more than 10% of the persons on the jury wheel in St. Tammany Parish were women. During the period from December 8, 1971, to November 3, 1972, 12 females were among the 1,800 persons drawn to fill petit jury venires in St. Tammany Parish. It was also stipulated that the discrepancy between females eligible for jury service and those actually included in the venire was the result of the operation of La. Const., Art. VII, § 41, and La. Code Crim. Proc., Art. 402. In the present case, a venire totaling 175 persons was drawn for jury service beginning April 13, 1972. There were no females on the venire.

Appellant’s motion to quash the venire was denied that same day. After being tried, convicted, and sentenced to death, appellant sought review in the Supreme Court of Louisiana, where he renewed his claim that the petit jury venire should have been quashed. The Supreme Court of Louisiana, recognizing that this claim drew into question the constitutionality of the provisions of the Louisiana Constitution and Code of Criminal Procedure dealing with the service of women on juries, squarely held, one justice dissenting, that these provisions were valid and not unconstitutional under federal law. 282 So. 2d 491, 497 (1973) .

Appellant appealed from that decision to this Court. We noted probable jurisdiction, 415 U. S. 911 (1974), to consider whether the Louisiana jury-selection system deprived appellant of his Sixth and Fourteenth Amendment right to an impartial jury trial. We hold that it did and that these Amendments were violated in this case by the operation of La. Const., Art. VII, § 41, and La. Code Crim. Proc., Art. 402. In consequence, appellant’s conviction must be reversed.

II

The Louisiana jury-selection system does not disqualify women from jury service, but in operation its conceded systematic impact is that only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service. In this case, no women were on the venire from which the petit jury was drawn. The issue we have, therefore, is whether a jury-selection system which operates to exclude from jury service an identifiable class of citizens constituting 53% of eligible jurors in the community comports with the Sixth and Fourteenth Amendments.

The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor’s claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service. In Peters v. Kiff, 407 U. S. 493 (1972), the defendant, a white man, challenged his conviction on the ground that Negroes had been systematically excluded from jury service. Six Members of the Court agreed that petitioner was entitled to present the issue and concluded that he had been deprived of his federal rights. Taylor,, in the case before us, was similarly entitled to tender and have adjudicated the claim that the exclusion of women from jury service deprived him of the kind of factfinder to which he was constitutionally entitled.

Ill

The background against which this case must be decided includes our holding in Duncan v. Louisiana, 391 U. S. 145 (1968), that the Sixth Amendment’s provision for jury trial is made binding on the States by virtue of the Fourteenth Amendment. Our inquiry is whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecutions.

The Court’s prior cases are instructive. Both in the course of exercising its supervisory powers over trials in federal courts and in the constitutional context, the Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community. A unanimous Court stated in Smith v. Texas, 311 U. S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.” A state jury system that resulted in systematic exclusion of Negroes as jurors was therefore held to violate the Equal Protection Clause of the Fourteenth Amendment. Glosser v. United States, 315 U. S. 60, 85-86 (1942), in the context of a federal criminal case and the Sixth Amendment’s jury trial requirement, stated that “[o]ur notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government,” and repeated the Court’s understanding that the jury “ ‘be a body truly representative of the community’ . . . and not the organ of any special group or class.”

A federal conviction by a jury from which women had been excluded, although eligible for service under state law, was reviewed in Ballard v. United States, 329 U. S. 187 (1946). Noting the federal statutory “design to make the jury ‘a cross-section of the community’ ” and the fact that women had been excluded, the Court exercised its supervisory powers over the federal courts and reversed the conviction. In Brown v. Allen, 344 U. S. 443, 474 (1953), the Court declared that “[o]ur duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.”

Some years later in Carter v. Jury Comm’n, 396 U. S. 320, 330 (1970), the Court observed that the exclusion of Negroes from jury service because of their race “contravenes the very idea of a jury — ‘a body truly representative of the community’ . . . (Quoting from Smith v. Texas, supra.) At about the same time it was contended that the use of six-man juries in noncapital criminal cases violated the Sixth Amendment for failure to provide juries drawn from a cross section of the community, Williams v. Florida, 399 U. S. 78 (1970). In the course of rejecting that challenge, we said that the number of persons on the jury should “be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community.” Id., at 100. In like vein, in Apodaca v. Oregon, 406 U. S. 404, 410-411 (1972) (plurality opinion), it was said that “a jury will come to such a [commonsense] judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate ... on the question of a defendant’s guilt.” Similarly, three Justices in Peters v. Kiff, 407 U. S., at 500, observed that the Sixth Amendment comprehended a fair possibility for obtaining a jury constituting a representative cross section of the community.

The unmistakable import of this Court’s opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial. Recent federal legislation governing jury selection within the federal court system has a similar thrust. Shortly prior to this Court’s decision in Duncan v. Louisiana, supra, the Federal Jury Selection and Service Act of 1968 was enacted. In that Act, Congress stated “the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U. S. C. § 1861. In that Act, Congress also established the machinery by which the stated policy was to be implemented. 28 U. S. C. §§ 1862-1866. In passing this legislation, the Committee Reports of both the House and the Senate recognized that the jury plays a political function in the administration of the law and that the requirement of a jury’s being chosen from a fair cross section of the community is fundamental to the American system of justice. Debate on the floors of the House and Senate on the Act invoked the Sixth Amendment, the Constitution generally, and prior decisions of this Court in support of the Act.

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U. S., at 155-156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. “Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case.... [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.” Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting).

IV

We are also persuaded that the fair-cross-section requirement is violated by the systematic exclusion of women, who in the judicial district involved here amounted to 53% of the citizens eligible for jury service. This conclusion necessarily entails the judgment that women are sufficiently numerous and distinct from men and that if they are systematically eliminated from jury panels, the Sixth Amendment’s fair-cross-section requirement cannot be satisfied. This very matter was debated in Ballard v. United States, supra. Positing the fair-cross-section rule — there said to be a statutory one — the Court concluded that the systematic exclusion of women was unacceptable. The dissenting view that an all-male panel drawn from various groups in the community would be as truly representative as if women were included, was firmly rejected:

“The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men — personality, background, economic status — and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. ■ Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.” 329 U. S., at 193-194.

In this respect, we agree with the Court in Ballard: If the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn. This conclusion is consistent with the current judgment of the country, now evidenced by legislative or constitutional provisions in every State and at the federal level qualifying women for jury service.

V

There remains the argument that women as a class serve a distinctive role in society and that jury service would so substantially interfere with that function that the State has ample justification for excluding women from service unless they volunteer, even though the result is that almost all jurors are men. It is true that Hoyt v. Florida, 368 U. S. 57 (1961), held that such a system did not deny due process of law or equal protection of the laws because there was a sufficiently rational basis for such an exemption. But Hoyt did not involve a defendant’s Sixth Amendment right to a jury drawn from a fair cross section of the community and the prospect of depriving him of that right if women as a class are systematically excluded. The right to a proper jury cannot be overcome on merely rational grounds. There must be weightier reasons if a distinctive class representing 53% of the eligible jurors is for all practical purposes to be excluded from jury service. No such basis has been tendered here.

The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare. Rawlins v. Georgia, 201 U. S. 638 (1906). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community. A system excluding all women, however, is a wholly different matter. It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties. This may be the case with many, and it may be burdensome to sort out those who should be exempted from those who should serve. But that task is performed in the case of men, and the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment represented by the jury in criminal trials.

VI

Although this judgment may appear a foregone conclusion from the pattern of some of the Court’s cases over the past 30 years, as well as from legislative developments at both federal and state levels, it is nevertheless true that until today no case had squarely held that the exclusion of women from jury venires deprives a criminal defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. It is apparent that the first Congress did not perceive the Sixth Amendment as requiring women on criminal jury panels; for the direction of the First Judiciary Act of 1789 was that federal jurors were to have the qualifications required by the States in which the federal court was sitting and at the time women were disqualified under state law in every State. Necessarily, then, federal juries in criminal cases were all male, and it was not until the Civil Rights Act of 1967, 71 Stat. 638, 28 U. S. C. § 1861 (1964 ed.), that Congress itself provided that all citizens, with limited exceptions, were competent to sit on federal juries. Until that time, federal courts were required by statute to exclude women from jury duty in those States where women were disqualified. Utah was the first State to qualify women for juries;, it did so in 1898, n. 13, supra. Moreover, Hoyt v. Florida was decided and has stood for the proposition that, even if women as a group could not be constitutionally disqualified from jury service, there was ample reason to treat all women differently from men for the purpose of jury service and to exclude them unless they volunteered.

Accepting as we do, however, the view that the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community, we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. To this extent we cannot follow the contrary implications of the prior cases, including Hoyt v. Florida. If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed. If at one time it could be held that Sixth Amendment juries must be drawn from a fair cross section of the community but that this requirement permitted the almost total exclusion of women, this is not the case today. Communities differ at different times and places. What is a fair cross section at one time or place is not necessarily a fair cross section at another time or a different place. Nothing persuasive has been presented to us in this case suggesting that all-male venires in the parishes involved here are fairly representative of the local population otherwise eligible for jury service.

^

Our holding does not augur or authorize the fashioning of detailed jury-selection codes by federal courts. The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community. Carter v. Jury Comm’n, supra, as did Brown v. Allen, supra; Rawlins v. Georgia, supra, and other cases, recognized broad discretion in the States in this respect. We do not depart from the principles enunciated in Carter. But, as we have said, Louisiana’s special exemption for women operates to exclude them from petit juries, which in our view is contrary to the command of the Sixth and Fourteenth Amendments.

It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, Fay v. New York, 332 U. S. 261, 284 (1947); Apodaca v. Oregon, 406 U. S., at 413 (plurality opinion) ; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.

The judgment of the Louisiana Supreme Court is reversed and the case remanded to that court for further proceedings not inconsistent with this opinion.

So ordered.

Mr. Chief Justice Burger concurs in the result.

Mr. Justice Rehnquist,

dissenting.

The Court’s opinion reverses a conviction without a suggestion, much less a showing, that the appellant has been unfairly treated or prejudiced in any way by the manner in which his jury was selected. In so doing, the Court invalidates a jury-selection system which it approved by a substantial majority only 13 years ago. I disagree with the Court and would afl&rm the judgment of the Supreme Court of Louisiana.

The majority opinion canvasses various of our jury trial cases, beginning with Smith v. Texas, 311 U. S. 128 (1940). Relying on carefully chosen quotations, it concludes that the “unmistakable import” of our cases is that the fair-cross-section requirement “is an essential component of the Sixth Amendment right to a jury trial.” I disagree. Fairly read, the only “unmistakable import” of those cases is that due process and equal protection prohibit jury-selection systems which are likely to result in biased or partial juries. Smith v. Texas, supra, concerned the equal protection claim of a Negro who was indicted by a grand jury from which Negroes had been systematically excluded. Glasser v. United States, 315 U. S. 60 (1942), dealt with allegations that the only women selected for jury service were members of a private organization which had conducted pro-prosecution classes for prospective jurors. Brown v. Allen, 344 U. S. 443 (1953), rejected the equal protection and due process contentions of several black defendants that members of their race had been discriminatorily excluded from their juries. Carter v. Jury Comm’n, 396 U. S. 320 (1970), similarly dealt with equal protection challenges to a jury-selection system, but the persons claiming such rights were blacks who had sought to serve as jurors.

In Hoyt v. Florida, 368 U. S. 57 (1961), this Court gave plenary consideration to contentions that a system such as Louisiana’s deprived a defendant of equal protection and due process. These contentions were rejected, despite circumstances which were much more suggestive of possible bias and prejudice than are those here — the defendant in Hoyt was a woman whose defense to charges of murdering her husband was that she had been driven temporarily insane by his suspected infidelity and by his rejection of her efforts at reconciliation. Id., at 58-59. The complete swing of the judicial pendulum 13 years later must depend for its validity on the proposition that during those years things have changed in constitutionally significant ways. I am not persuaded of the sufficiency of either of the majority’s proffered explanar tions as to intervening events.

The first determinative event, in the Court’s view, is Duncan v. Louisiana, 391 U. S. 145 (1968). Because the Sixth Amendment was there held applicable to the States, the Court feels free to dismiss Hoyt as a case which dealt with entirely different issues — even though in fact it presented the identical problem. But Duncan’s rationale is a good deal less expansive than is suggested by the Court’s present interpretation of that case. Duncan rests on the following reasoning:

“The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those ‘ “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” ’ Powell v. Alabama, 287 U. S. 45, 67 (1932); whether it is ‘basic in our system of jurisprudence,’ In re Oliver, 333 U. S. 257, 273 (1948); and whether it is ‘a fundamental right, essential to a fair trial,’ Gideon v. Wainwright, 372 U. S. 335, 343-344 (1963); Malloy v. Hogan, 378 U. S. 1, 6 (1964); Pointer v. Texas, 380 U. S. 400, 403 (1965). . . . Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases . . . Id., at 148-149. (Emphasis added.)

That this is a sturdy test, one not readily satisfied by every discrepancy between federal and state practice, was made clear not only in Williams v. Florida, 399 U. S. 78 (1970), and Apodaca v. Oregon, 406 U. S. 404 (1972), but also in Duncan itself. In explaining the conclusion that a jury trial is fundamental to our scheme of justice, and therefore should be required of the States, the Court pointed out that jury trial was designed to be a defense “against arbitrary law enforcement,” 391 U. S., at 156, and “to prevent oppression by the Government.” Id., at 155. The Court stated its belief that jury trial for serious offenses is “essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.” Id., at 158.

I cannot conceive that today’s decision is necessary to guard against oppressive or arbitrary law enforcement, or to prevent miscarriages of justice and to assure fair trials. Especially is this so when the criminal defendant involved makes no claims of prejudice or bias. The Court does accord some slight attention to justifying its ruling in terms of the basis on which the right to jury trial was read into the Fourteenth Amendment. It concludes that the jury is not effective, as a prophylaxis against arbitrary prosecutorial and judicial power, if the “jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.” Ante, at 530. It fails, however, to provide any satisfactory explanation of the mechanism by which the Louisiana system undermines the prophylactic role of the jury, either in general or in this case. The best it can do is to posit “ ‘a flavor, a distinct quality,’ ” which allegedly is lost if either sex is excluded. Ante, at 532. However, this “flavor” is not of such importance that the Constitution is offended if any given petit jury is not so enriched. Ante, at 538. This smacks more of mysticism than of law. The Court does not even purport to practice its mysticism in a consistent fashion — presumably doctors, lawyers, and other groups, whose frequent exemption from jury service is endorsed by the majority, also offer qualities as distinct and important as those at issue here.

In Hoyt, this Court considered a stronger due process claim than is before it today, but found that fundamental fairness had not been offended. I do not understand how our intervening decision in Duncan can support a different result. After all, Duncan imported the Sixth Amendment into the Due Process Clause only because, and only to the extent that, this was perceived to be required by fundamental fairness.

The second change since Hoyt that appears to under-gird the Court’s turnabout is societal in nature, encompassing both our higher degree of sensitivity to distinctions based on sex, and the “evolving nature of the structure of the family unit in American society.” Ante, at 535 n. 17. These are matters of degree, and it is perhaps of some significance that in 1961 Mr. Justice Harlan saw fit to refer to the “enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men.” Hoyt, 368 U. S., at 61-62. Nonetheless, it may be fair to conclude that the Louisiana system is in fact an anachronism, inappropriate at this “time or place.” Ante, at 537. But surely constitutional adjudication is a more canalized function than enforcing as against the States this Court’s perception of modern life.

Absent any suggestion that appellant’s trial was unfairly conducted, or that its result was unreliable, I would not require Louisiana to retry him (assuming the State can once again produce its evidence and witnesses) in order to impose on him the sanctions which its laws provide.

       La. Const., Art. VII, § 41, read, in pertinent part:
      “The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; provided, however, that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service.”
      As of January 1, 1975, this provision of the Louisiana Constitution was repealed and replaced by the foEowing provision, La. Const., Art. V, §33:
      “(A) Qualifications.
      “A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled. The legislature may provide additional qualifications.
      “(B) Exemptions.
      “The supreme court shall provide by rule for exemption of jurors.”

       La. Code Crina. Proc., Art. 402, provided:
      “A woman shaU not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.”
      This provision has been repealed, effective January 1, 1975. The repeal, however, has no effect on the conviction obtained in this case.

       The stipulation appears in the Appendix, at 82-84, filed in Edwards v. Healy, No. 73-759, now pending before the Court.

        Ibid.

       The death sentence imposed on appellant was annulled and set aside by the Supreme Court of Louisiana in accord with this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), with instructions to the District Court to impose a life sentence on remand. The Supreme Court of Louisiana granted a rehearing to appellant on certain other issues not relevant to this appeal, 282 So. 2d 491, 500 (1973), and later denied a second petition for rehearing.

       Pub. L. 90-274, 82 Stat. 53, 28 U. S. C. § 1861 et seq.

       H. R. Rep. No. 1076, 90th Cong., 2d Sess., 8 (1968):
      “It must be remembered that the jury is designed not only to understand the case, but also to reflect the community’s sense of justice in deciding it. As long as there are significant departures from the cross sectional goal, biased juries are the result — biased in the sense that they reflect a slanted view of the community they are supposed to represent.”
      See S. Rep. No. 92-516, p. 3 (1971).

      S. Rep. No. 891, 90th Cong., 1st Sess., 9 (1967): “A jury chosen from a representative community sample is a fundamental of our system of justice.”
      Both the Senate and House Reports made reference to the decision of the Court of Appeals in Rabinowitz v. United States, 366 F. 2d 34, 57 (CA5 1966), which, in sustaining an attack on the composition of grand and petit jury venires in the Middle District of Georgia, had held that both the Constitution and 28 U. S. C. § 1861, prior to its amendment in 1968, required a system of jury selection “that will probably result in a fair cross-section of the community being placed on the jury rolls.” See S. Rep. No. 891, supra, at 11, 18; H. R. Rep. No. 1076, supra, n. 7, at 4, 5.
      Elimination of the “key man” system throughout the federal courts was the primary focus of the Federal Jury Selection and 'Service Act of 1968. See H. R. Rep. No. 1076, supra, at 4 and n. 1.

       114 Cong. Rec. 3992 (1968) (remarks of Mr. Rogers). See also 118 Cong. Rec. 6939 (1972) (remarks of Mr. Poff).

       114 Cong. Rec. 3999 (1968) (remarks of Mr. Machen).

        Id., at 6609 (remarks of Sen. Tydings).

       Compare Peters v. Kiff, 407 U. S. 493, 502-504 (1972) (opinion of Marshall, J., joined by Douglas and Stewart, JJ.):
      “These principles compel the conclusion that a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.
      “But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. ... ■
      “Moreover, we are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race. When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Footnote omitted.)
      • Controlled studies of the performance of women as jurors conducted subsequent to the Court’s decision in Ballard have concluded that women bring to juries their own perspectives and values that influence both jury deliberation and result. See generally Rudolph, Women on Juries — Voluntary or Compulsory?, 44 J. Am. Jud. Soc. 206 (1961); 55 J. Sociology & Social Research 442 (1971) ; 3 J. Applied Social Psychology 267 (1973); 19 Sociometry 3 (1956).

       This is a relatively modern development. Under the English common law, women, with the exception of the trial of a narrow class of cases, were not considered to be qualified for jury service by virtue of the doctrine of propter defectum sexus, a “defect of sex.” 3 W. Blackstone, Commentaries *362. This common-law rule was made statutory by Parliament in 1870, 33 & 34 Viet., e. 77, and then rejected by Parliament in 1919, 9 & 10 Geo. 5, c. 71. In this country women were disqualified by state law to sit as jurors until the end of the 19th century. They were first deemed qualified for jury service by a State in 1898, Utah Rev. Stat. Ann., Tit. 35, § 1297 (1898). Today, women are qualified as jurors in all the States. The jury-sendee statutes and rules of most States do not on their face extend to women the type of exemption presently before the Court, although the exemption provisions of some States do appear to treat men and women differently in certain respects.

       Florida Stat. 1959, § 40.01 (1), provided that grand and petit jurors be taken from male and female citizens of the State possessed of certain qualifications and also provided that “the name of no female ■person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.” Hoyt v. Florida, 368 U. S. 57, 58 (1961).

       The state interest, as articulated by the Court, was based on the assumption that “woman is still regarded as the center of home and family life.” Hoyt v. Florida, supra, at 62. Louisiana makes a similar argument here, stating that its grant of an automatic exemption from jury service to females involves only the State’s attempt “to regulate and provide stability to the state’s own idea of family life.” Brief for Appellee 12.

       In Hoyt, the Court determined both that the underlying classification was rational and that the State’s proffered rationale for extending this exemption to females without family responsibilities was justified by administrative convenience. 368 U. S., at 62-63.

       In Hoyt v. Florida, supra, the Court placed some emphasis on the notion, advanced by the State there and by Louisiana here in support of the rationality of its statutory scheme, that “woman is still regarded as the center of home and family life.” 368 U. S., at 62. Statistics compiled by the Department of Labor indicate that in October 1974, 54.2% of all women between 18 and 64 years of age were in the labor force. United States Dept. of Labor, Women in the Labor Force (Oct. 1974). Additionally, in March 1974, 45.7% of women with children under the age of 18 were in the labor force; with respect to families containing children between the ages of six and 17, 67.3% of mothers who were widowed, divorced, or separated were in the work force, while 51.2% of the mothers whose husbands were present in the household were in the work force. Even in family units in which the husband was present and which contained a child under three years old, 31% of the mothers were in the work force. United States Dept. of Labor, Marital and Family Characteristics of the Labor Force, Table F (March 1974). While these statistics perhaps speak more to the evolving nature of the structure of the family unit in American society than to the nature of the role played by women who happen to be members of a family unit, they certainly put to rest the suggestion that all women should be exempt from jury service based solely on their sex and the presumed role in the home.

       Section 29 of that Act provided that “the jurors shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State . . . 1 Stat. 88.

        Hoyt v. Florida, as had Fay v. New York, 332 U. S. 261, 289-290 (1947), also referred to the historic view that jury service could constitutionally be confined to males: “We need not, however, accept appellant’s invitation to canvass in this case the continuing validity of this Court’s dictum in Strauder v. West Virginia, 100 U. S. 303, 310, to the effect that a State may constitutionally ‘confine’ jury duty ‘to males.' This constitutional proposition has gone unquestioned for more than eighty years in the decisions of the Court, see Fay v. New York, supra, at 289-290, and had been reflected, until 1957, in congressional policy respecting jury service in the federal courts themselves.” 368 U. S., at 60. (Footnote omitted.) See also Glasser v. United States, 315 U. S. 60, 64-65, 85-86 (1942).
      It is most interesting to note that Strauder v. West Virginia itself stated:
      “[T]he constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” 100 U. S. 303, 308 (1880).


source: Caselaw Access Project

author: Mb. Justice Rehnquist

license: Public Domain

text:
    UNITED STATES v. MAZURIE et al.
    No. 73-1018.
    Argued November 12, 1974
    Decided January 21, 1975

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

      Harry B. Sachse argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Jacques B. Gelin, and Lawrence E. Shearer.

      Charles E. Hamilton argued the cause and filed a brief for respondents.

      Jerome F. Statkus, Assistant Attorney General, argued the cause for the State of Wyoming as amicus curiae urging affirmance. With him on the brief was Sterling A. Case, Deputy Attorney General.

         Marvin J. Sonosky and Glen A. Wilkinson filed a brief for the Shoshone and Arapahoe Tribes of the Wind River Indian Reservation as amici curiae urging reversal.

   Mb. Justice Rehnquist

delivered the opinion of the Court.

The respondents were convicted of introducing spirituous beverages into Indian country, in violation of 18 U. S. C. § 1154. The Court of Appeals for the Tenth Circuit reversed. 487 F. 2d 14 (1973). We granted certiorari, 415 U. S. 947 (1974), in order to consider the Solicitor General’s contentions that 18 U. S. C. § 1154 is not unconstitutionally vague, that Congress has the constitutional authority to control the sale of alcoholic beverages by non-Indians on fee-patented land within the boundaries of an Indian reservation, and that Congress could validly make á delegation of this authority to a reservation’s tribal council. We reverse the Court of Appeals.

I

The Wind River Reservation was established by treaty in 1868. Located in a rather arid portion of central Wyoming, at least some of its 2,300,000 acres have been described by Mr. Justice Cardozo as “fair and fertile,” Shoshone Tribe v. United States, 299 U. S. 476,486 (1937). It straddles the Wind River, with its remarkable canyon, and lies in a mile-high basin at the foot of the Wind River Mountains, whose rugged, glaciated peaks and ridges form a portion of the Continental Divide. The reservation is occupied by the Shoshone and Arapahoe Tribes. . Although these tribes were once “ancestral foes,” ibid., they are today jointly known as the Wind River Tribes. As a result of various patents, substantial tracts of non-Indian-held land are scattered within the reservation’s boundaries. It was on such non-Indian land that respondents Martin and Margaret Mazurie operated their bar, which did business under the corporate name of the Blue Bull, Inc.

Before 1953 federal law generally prohibited the introduction of alcoholic beverages into “Indian country.” 18 U. S. C. § 1154 (a). “Indian country” was defined by 18 U. S. C. § 1151 to include non-Indian-held lands “within the limits of any Indian reservation.” In 1949, the term was given a narrower meaning, insofar as relevant to the liquor prohibition, so as to exclude both fee-patented lands within “non-Indian communities” and rights-of-way through reservations. Act of May 24, 1949, 63 Stat. 94, 18 U. S. C. § 1154 (c), supra, n. 1. The quoted term is not defined, a fact which creates problems with which we shall shortly deal. In 1953 Congress passed local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated. Act of Aug. 15,1953, 67 Stat. 586,18 U. S. C. § 1161 The Wind River Tribes responded to this option by adopting an ordinance which permitted liquor sales on the reservation if made in accordance with Wyoming law. When the Blue Bull originally opened, a liquor license had been issued to it by Fremont County, Wyo., and its operation was therefore consistent with that tribal ordinance. But in 1971 the Wind River Tribes adopted a new liquor ordinance, Ordinance No. 26. That ordinance required that retail liquor outlets within Indian country obtain both tribal and state licenses.

In 1972, the Mazuries applied for a tribal license, after warnings that they would be subject to criminal charges if they continued to operate without one. The tribes held a public hearing which Martin Mazurie and the Ma-zuries’ lawyer attended. Witnesses protested grant of the license, complaining of singing and shooting at late hours, disturbances of elderly residents of a nearby housing development, and the permitting of Indian minors in the bar. The application was denied.

Thereafter, the Mazuries closed the Blue Bull. Three weeks later they reopened it. It remained in operation for approximately a year, until federal officers seized its alcoholic beverages, and this criminal prosecution was initiated.

The case was tried to the District Court without a jury. Since most of the factual issues were disposed of by stipulations, the testimony at trial primarily dealt with whether the bar was within “Indian country.” On the basis of testimony about the Blue Bull’s location, and about the racial composition of residents of the surrounding area, the court concluded that the bar was so located. Holding that federal authority could reach non-Indians located on privately held land within a reservation’s boundaries, the court entered judgments of conviction. Each respondent was fined $100.

The Court of Appeals reversed the convictions. It concluded that the prosecution had not carried its burden of proving beyond a reasonable doubt that the bar was not excluded from Indian country by the § 1154 (c) exception for “fee-patented lands in non-Indian communities.” This conclusion was tied directly to the more basic holding:

“[T]he terminology of 'non-Indian community’ is not capable of sufficiently precise definition to serve as an element of the crime herein considered .... The statute is thus fatally defective by reason of this indefinite and vague terminology.” 487 F. 2d, at 18.

As a second basis for reversal, the court held that insofar as 18 U. S. C. § 1161 authorized Indian tribes to adopt ordinances controlling the introduction by non-Indians of alcoholic beverages onto non-Indian land, it was an invalid congressional attempt to delegate authority. The Court of Appeals also suggested that Congress itself could not regulate the sale of alcohol by non-Indians on fee-patented non-Indian lands within Indian reservations.

II

It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. National Dairy Products Corp., 372 U. S. 29 (1963). In determining whether § 1154 (c) is unconstitutionally vague as to respondents, we must therefore first consider the evidence as to the location of the Blue Bull.

The evidence showed that the bar was located on the outskirts of Fort Washakie, Wyo., an unincorporated village bearing the name of the man who was chief of the Shoshones during their early years on the Wind River Reservation. Shoshone Tribe v. United States, 299 U. S., at 486; Harmston, supra, n. 2, at 3-4. Fort Washakie is the location of the Wind River Agency of the Bureau of Indian Affairs, and of the Tribal Headquarters of the Wind River Tribes. One witness testified that the village was an “Indian community.” App 49. The evidence also showed that of the 212 families living within a 20-square-mile area roughly centered on the Blue Bull, 170 were Indian families, 41 were non-Indians, and one was mixed. A large-scale United States Geological Survey map was introduced to show the limits of this housing survey. It indicates that the survey included all settlements within the Fort Washakie area, and that the nearest not-included concentrations of housing were at Saint James Church and Ethete, some four miles beyond the boundaries of the survey and some six miles from Fort Washakie. The evidence also established that the state school serving Fort Washakie, and located about two and one-half miles from the Blue Bull, had a total enrollment of 243 students, 223 of whom were Indian.

Other evidence bearing on whether the Blue Bull was located in a non-Indian community was Martin Mazurie’s testimony that the bar served both Indians and non-Indians, and that: “We are kind of out there by ourselves, you know.” App. 70. A transcript of the hearing on the Mazuries’ application to the tribes for a retail liquor license was also admitted at the trial. That transcript indicates that the Blue Bull was located near a public housing development populated largely if not entirely by Indians. Residents of this development complained that persons leaving the bar late at night, and for one reason or another having either no transportation or no destination, would wander into the development.

There was no testimony that the Blue Bull was in a non-Indian community. The defense did obtain acknowledgments by prosecution witnesses that they could not precisely state the boundaries of the Fort Washakie Indian community. Otherwise, examination by the defense was directed at establishing that the term “Indian” was without precise meaning, and that the State of Wyoming generally had jurisdiction over non-Indians and their lands within the reservation.

We think that the foregoing evidence was sufficient to justify the District Court’s implied conclusion that Fort Washakie and its surrounding settlements did not compose a non-Indian community. We do not read the opinion of the Court of Appeals as reaching a conclusion contrary to that which we have just stated. That court instead based its decision on the proposition that such proof did not go far enough, a view generated by its opinion of the requirements this statute must meet in order to avoid the vice of vagueness. The Court of Appeals was looking for proof beyond a reasonable doubt of precisely defined concepts of “Indian” and “community.” We gather that it expected persons treated as “Indians” in the housing and school surveys to be proved to satisfy a specific statutory definition. Similarly, it apparently expected that proof concerning the “community” should have conformed to some specific statutory definition, presumably one keyed to a geographical area with precise boundaries.

We believe that the Court of Appeals erred by holding that the Constitution requires proof of such precisely defined concepts. The prosecution was required to do no more than prove that the Blue Bull was not located in a non-Indian community, where that term has a meaning sufficiently precise for a man of average intelligence to “reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U. S., at 32-33. Given the nature of the Blue Bull’s location and surrounding population, the statute was sufficient to advise the Mazuries that their bar was not excepted from tribal regulation by virtue of being located in a non-Indian community.

Ill

The Court of Appeals, expressed doubt that “the Government has the power to regulate a business on the land it granted in fee without restrictions.” 487 F. 2d, at 18. Because that court went on to hold that even if Congress did possess such power, it could not be delegated to an Indian tribe, that court did not find it necessary to resolve the issue of congressional power. We do, however, reach the issue, because we hereinafter conclude that federal authority was properly delegated to the Indian tribes. We conclude that federal authority is adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians.

Article I, § 8, of the Constitution gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of aleoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country. United States v. Holliday, 3 Wall. 407, 417-418 (1866); United States v. Forty-three Gallons of Whiskey, 93 U. S. 188, 194-195 (1876); Ex parte Webb, 225 U. S. 663, 683-684 (1912); Perrin v. United States, 232 U. S. 478, 482 (1914); Johnson v. Gearlds, 234 U. S. 422, 438-439 (1914); United States v. Nice, 241 U. S. 591, 597 (1916).

Perrin v. United States, supra, demonstrates the controlling principle. It dealt with the sale of intoxicating beverages within premises owned by non-Indians, on privately held land in an organized non-Indian municipality. The land originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United States. The cession agreement, as ratified and confirmed by Congress, specified that alcoholic beverages would never be sold on the ceded land. The land was subsequently opened to private non-Indian settlers. In upholding Perrin’s conviction, this Court stated:

“The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a State, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority ‘to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,’ and in part from the recognized relation of tribal Indians to the Federal Government.” 232 U. S., at 482.

Seymour v. Superintendent, 368 U. S. 351 (1962), is a more recent indication of congressional authority over events occurring on non-Indian land within a reservation. The case concerned an Indian’s challenge to a state burglary conviction. The Indian contended that because the offense took place within “Indian country,” it was within the exclusive jurisdiction of the United States by virtue of 18 U. S. C. § 1153. This Court agreed, despite the fact that the crime occurred on land patented in fee to non-Indians. While the opinion did not address the constitutional issue, it did reject a variety of statutory arguments for excluding the crime’s situs from 18 U. S. C. § 1151’s definition of “Indian country.” Of significance for our purposes is the fact that Congress’ authority to define “Indian country” so broadly, and to supersede state jurisdiction within the defined area, went both unchallenged by the parties and unquestioned by this Court.

We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bull.

IV

The Court of Appeals said, however, that even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows:

“The tribal members are citizens of the United States. It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate 'nation’ of' United States citizens within the boundaries of the United States which has any authority, other than as landowners, over individuals who are excluded as members.
“The purported delegation of authority to the tribal officials contained in 18 U. S. C. § 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned.” 487 F. 2d, at 19.

This Court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Co. v. Ryan, 293 U. S. 388 (1935). Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319-322 (1936). Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 557 (1832); they are “a separate people” possessing “the power of regulating their internal and social relations . . . ,” United States v. Kagama, 118 U. S. 375, 381-382 (1886); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 173 (1973).

Cases such as Worcester, supra, and Kagama, supra, surely establish the proposition that Indian tribes within “Indian country” are a good deal more than “private, voluntary organizations,” and they thus undermine the rationale of the Court of Appeals’ decision. These same cases, in addition, make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. We need not decide whether this independent authority is itself sufficient for the tribes to impose Ordinance No. 26. It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this portion of its own authority “to regulate Commerce ... with the Indian tribes.” Cf. United States v. Curtiss-Wright Export Corp., supra.

The fact that the Mazuries could not become members of the tribe, and therefore could not participate in the tribal government, does not alter our conclusion. This claim, that because respondents are non-Indians Congress could not subject them to the authority of the Tribal Council with respect to the sale of liquor, is answered by this Court’s opinion in Williams v. Lee, 358 U. S. 217 (1959). In holding that the authority of tribal courts could extend over non-Indians, insofar as concerned their transactions on a reservation with Indians, we stated:

“It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U. S. 553, 564-566.” Id., at 223 (citations omitted).

For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the convictions of respondents reinstated.

Reversed.

       Title 18 U. S. C. § 1154 provides in pertinent part:
      “(a) [W]hoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both.
      “(c) The term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.”

       F. Harmston, Wind River Basin 2 (1953); H. Granger et al., Mineral Resources of the Glacier Primitive Area, Wyoming, Geological Survey Bull. No. 1319-F, pp. F2-F5 (1971).

       Title 18 U. S. C. § 1151 provides in pertinent part:
      “Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country,’ as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation . . . .”

       Title 18 U. S. C. § 1161 provides:
      “The provisions' of sections 1154, 1156, 3113, 3488, and 3618, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both- with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, .and published in the Federal Register.”

       The ordinance was properly approved by the Secretary of the Interior and published in the Federal Register. 37 Fed. Reg. 1253-1254 (1972).

       The Blue Bull was reopened after the decision of the Court of Appeals. In April 1974, however, Fremont County refused to renew its license and it was again closed. Brief for United States 5 n. 4; Brief for Respondents 20 n. 8.

       It was stipulated that the Blue Bull was being operated without the license required by Ordinance No. 26, that alcoholic beverages had been sold at the Blue Bull, that the Blue Bull was located within the Wind River Reservation, but on land which it owned in fee, and that the Blue Bull had been properly licensed by state authorities.

       The District Court did not make a specific finding of fact that the Blue Bull was not located in a non-Indian community. The court did find that it was in “Indian Country,” that it was situated “at a site known as Fort Washakie, Wyoming,” that “Fort Washakie is not an incorporated non-Indian community with recognized boundaries,” and that the bar had been operated in violation of 18 U. S. C. § 1154 (which contains the exclusion from “Indian country” of fee-patented lands in non-Indian communities). The ambiguity in the trial court’s findings is readily explained by respondents’ failure to focus on the issue at trial. The nature of defense testimony and cross-examination is discussed infra, at 552. That respondents failed to contest the issue is further established by the motion to dismiss at the close of the Government’s evidence. The basis of the motion was failure “to prove beyond a doubt that [respondents] are operating in an Indian community,” App. 64 (emphasis added), which even if true is plainly irrelevant under the wording of § 1154 (c). Respondents’ counsel then proceeded with an argument based on respondents’ unrestricted fee ownership of the property on .which the bar was located. App. 64. In addition, respondents’ counsel did not dispute the court's statement at the close of the trial that the “sole issue” was “whether or not the Tribal Council has jurisdiction over deeded land held by these parties in fee . . . .” 2 Record on Appeal 140. The court went on to state:
      “[I]t is in Indian Country. There is not any question. You do not need to cite a single case that this bar and this ten acres is [sic] located in Indian Country. I am not saying it is Indian land, but it is Indian Country.” Ibid.

      Again, respondents’ counsel made no objection. He also apparently did not seek to focus the court’s attention on the issue by filing either a post-trial brief or proposed findings of fact and conclusions of law; while both parties had the opportunity to make such submissions, only the prosecution’s appears in the record on appeal.

       We assume, arguendo, as has the Government in its arguments before this court, that the prosecution has the burden of proving that the § 1154 (c) statutory exceptions are not applicable. Because of this assumption, and because we conclude that the Government in any event did carry this burden, we need not consider whether the exception must be pleaded and proved by criminal defendants. Cf. United States v. Vuitch, 402 U. S. 62, 70 (1971) (dealing with a criminal statute in which "an exception is incorporated in the enacting clause of a statute”). (Emphasis supplied.)

       We note that the § 1154 (e) exception is available for fee-patented lands which are in non-Indian communities, rather than for those which are not in Indian communities. This fact renders irrelevant the inability of prosecution witnesses to specify precise boundaries of the Fort Washakie Indian community.
      We need not detain ourselves with an issue which seemed to cause the Court of Appeals some difficulties, that of what qualifies a person as an "Indian.” The record plainly establishes that, in the circumstances of this case, the distinction between Indians and non-Indians was generally understood. Those who testified about the housing and school surveys displayed no difficulty in making such classifications. Nor did Mr. Mazurie. He testified that when there was trouble at his bar he would call the county sheriff to deal with a non-Indian, but would call the tribal police to deal with an Indian. When his counsel questioned him as to how he determined which was which, he simply replied: “Because I knew them.” App. 70.

       It is undisputed that the Wind River Tribes have not been emancipated from federal guardianship and control. There is thus no doubt that this case is properly analyzed in terms of Congress exclusive constitutional authority to deal with Indian tribes.

       Respondents attempt to bolster this claim with the argument that “the basic rights and principles of equal protection and due process [are] currently not available to non-Indians within the tribal councils.” Brief for Respondents 24. However, respondents make no claim that the tribal decision to deny them a license constituted a denial of equal protection or that it resulted from a hearing which lacked due process. Whether and to what extent the Fifth Amendment would be available to correct arbitrary or-discriminatory tribal exercise of its delegated federal authority must therefore, await decision in a case in which the issue is squarely presented and appropriately briefed. This observation is also applicable with regard to § 202 of Pub. L. 90-284, 82 Stat. 77, 25 U. S. C. §1302, which provides: “No Indian tribe in exercising powers of self-government shall ... (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” Quite apart from these potential sources of protection against arbitrary tribal action, such protection is to some extent assured by § 1161’s requirement that delegated authority be exercised pursuant to a tribal ordinance which itself has been approved by the Secretary of the Interior.


author: Mr. Justice Douglas,

text:
    STANDARD PRESSED STEEL CO. v. DEPARTMENT OF REVENUE OF WASHINGTON
    No. 73-1697.
    Argued December 16, 1974
    Decided January 22, 1975
    Douglas, J., wrote the opinion for a unanimous Court.

      Kenneth L. Cornell argued the cause for appellant. With him on the briefs was Harold S. Fardal.

      Slade Gorton, Attorney General of Washington, argued the cause for appellee. With him on the brief were Timothy R. Malone, Senior Assistant Attorney General, and William D. Dexter, Assistant Attorney General.
   Opinion of the Court by

Mr. Justice Douglas,

announced by Mr. Chief Justice Burger.

Appellant, a manufacturer of industrial and aerospace fasteners (nuts and bolts generally), has its home office in Pennsylvania, one manufacturing plant there and another in California. Its principal customer in the State of Washington is the Boeing Company, in Seattle. In the years relevant here it had one employee, one Martinson, in Washington who was paid a salary and who operated out of his home near Seattle. He was an engineer whose primary duty was to consult with Boeing regarding its anticipated needs and requirements for aerospace fasteners and to follow up any difficulties in the use of appellant’s product after delivery. Martinson was assisted by a group of engineers of appellant who visited Boeing about three days every six weeks, their meetings being arranged by Martinson. Martinson did not take orders from Boeing; they were sent directly to appellant. Orders accepted would be filled and shipment made by common carrier to Boeing direct, all payments being made directly to appellant. Martinson had no office except in his home; he had no secretary; but appellant maintained an answering service in the Seattle area which received calls for Martinson, bills for that service being sent direct to appellant.

The State Board of Tax Appeals found that the activities of Martinson were necessary to appellant in making it aware of which products Boeing might use, in obtaining the engineering design of those products, in securing the testing of sample products to qualify them for sale to Boeing, in resolving problems of their use after receipt by Boeing, in obtaining and retaining good will and rapport with Boeing personnel, and in keeping the invoicing personnel of appellant up to date on Boeing’s lists of purchasing specialists or control buyers. The Board sustained the assessment of the Washington business and occupation tax, Wash. Rev. Code § 82.04.270 (1972), levied on the unapportioned gross receipts of appellant resulting from its sale of fasteners to Boeing. The Superior Court affirmed the Board, and the Court of Appeals in turn affirmed, 10 Wash. App. 45, 516 P. 2d 1043 (1973). The Supreme Court denied review. The constitutionality, as applied, of the Washington statute being challenged, we noted probable jurisdiction, 417 U. S. 966 (1974).

Appellant argues that imposition of the tax violates due process because the in-state activities were so thin and inconsequential as to make the tax on activities occurring beyond the borders of the State one which has no reasonable relation to the protection and benefits conferred by the taxing State, Wisconsin v. J. C. Penney Co., 311 U. S. 435 (1940). In other words the question is “whether the state has given anything for which it can ask return,” id., at 444. We think the question in the context of the present case verges on the frivolous. For appellant’s employee, Martinson, with a full-time job within the State, made possible the realization and continuance of valuable contractual relations between appellant and Boeing.

The case is argued on the interstate commerce aspect as if Washington were taxing the privilege of doing an interstate business with only orders being sent from within the State and filled outside the State, McLeod v. Dilworth Co., 322 U. S. 327 (1944). Much reliance is placed on Norton Co. v. Department of Revenue, 340 U. S. 534 (1951), where a Massachusetts corporation qualified to do business in Illinois and maintained an office there from which it made local sales at retail. It was accordingly subjected to the Illinois gross receipts tax on retailers. There were, however, orders sent by Illinois buyers directly to Massachusetts, filled there, and shipped directly to the customer. As to these a divided Court held that the income from those sales was not taxable by Illinois by reason of the Commerce Clause. The disagreement in the Court was not over the governing principle; it concerned the burden of showing a nexus between the local office and interstate sales — whether a nexus could be assumed and whether the taxpayer had carried the burden of establishing its immunity.

General Motors Corp. v. Washington, 377 U. S. 436 (1964), is almost precisely in point so far as the present controversy goes. While the zone manager for sales of the Chevrolet, Pontiac, and Oldsmobile divisions was in Portland, Ore., district managers lived and operated within Washington. Each operated from his home, having no separate office. Each had from 12 to 30 dealers under supervision. He called on each of these dealers, kept tabs on the sales forces, and advised as to promotional and training plans. He also advised on used car inventory control. He worked out with the dealer estimated needs over a 30-, 60-, and 90-day projection of orders. General Motors also had in Washington service representatives who called on dealers regularly, assisted in any troubles experienced, and checked the adequacy of the service department’s inventory. They conducted service clinics, teaching dealers and employees efficient service techniques. We held that these activities served General Motors as effectively when administered from “homes” as from “offices” and that those services were substantial “with relation to the establishment and maintenance of sales, upon which the tax was measured,” id., at 447.

We noted in General Motors that a vice in a tax on gross' receipts of a corporation doing an interstate business is the risk of multiple taxation; but that the burden is on the taxpayer to demonstrate it, id., at 449. The corporation made no such showing there. Nor is any effort made to establish it here. This very tax was involved in Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434 (1939). The taxpayer was a Washington corporation, doing business there and shipping fruit from Washington to places of sale in the various States and in foreign countries. The Court held the tax, as applied, unconstitutional under the Commerce Clause.

“Here the tax, measured by the entire volume of the interstate commerce in which appellant participates, is not apportioned to its activities within the state. If Washington is free to exact such a tax, other states to which the commerce extends may, with equal right, lay a tax similarly measured for the privilege of conducting within their respective territorial limits the activities there which contribute to the service. The present tax, though nominally local, thus in its practical operation discriminates against interstate commerce, since it imposes upon it, merely because interstate commerce is being done, the risk of a multiple burden to which local commerce is not exposed.” Id., at 439.

In the instant case, as in Ficklen v. Shelby County Taxing District, 145 U. S. 1 (1892), the tax is on the gross receipts from sales made to a local consumer, which may have some impact on commerce. Yet as we said in Gwin, White & Prince, supra, at 440, in describing the tax in Ficklen, it is “apportioned exactly to the activities taxed,” all of which are intrastate.

Affirmed.

       Appellant paid the taxes under protest, and it is stipulated that should appellant prevail it would be entitled to a refund of $33,444.91.

       In that case the taxpayers did business as brokers in Tennessee. They solicited local customers and sent their orders to out-of-state vendors who shipped directly to the purchaser. Tennessee levied a tax on their gross commissions. The Court, in distinguishing the “drummer” cases illustrated by Robbins v. Shelby County Taxing District, 120 U. S. 489 (1887), stated that in Ficklen Tennessee did not tax more than its own internal commerce.