author: Mr. Justice Stewart

text:
    UNITED STATES v. WHEELER
    No. 76-1629.
    Argued January 11,1978
    Decided March 22, 1978

      Stewart, J., delivered the opinion of the Court, in which all other Members joined except Brennan, J., who took no part in the consideration or decision of the case.

      Stephen L. Urbanczyk argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Barnett, Jerome M. Feit, and Michael W. Farrell.

      Thomas W. O’Toole argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U. S. C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident.

I

On October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz., on the Navajo Indian Reservation. He was taken to the tribal jail in Chinle, Ariz., and charged with disorderly conduct, in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second.

Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona. The respondent moved to dismiss this indictment, claiming that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution. See Brown v. Ohio, 432 U. S. 161. The District Court, rejecting the prosecutor’s argument that “there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States,” dismissed the indictment. The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that since “Indian tribal courts and United States district courts are not arms of separate sovereigns,” the Double Jeopardy Clause barred the respondent’s trial. 545 F. 2d 1255, 1258. We granted certiorari to resolve an intercircuit conflict. 434 U. S. 816.

II

In Bartkus v. Illinois, 359 U. S. 121, and Abbate v. United States, 359 U. S. 187, this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and. a state prosecution does not bar a federal one. The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence to be twice put in jeopardy”:

“An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Moore v. Illinois, 14 How. 13, 19-20.

It was noted in Abbate, supra, at 195, that the “undesirable consequences” that would result from the imposition of a double jeopardy bar in such circumstances further support the “dual sovereignty” concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws. While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a “marked change in the distribution of powers to administer criminal justice” would not be desirable. Ibid.

The “dual sovereignty” concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U. S. 333, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines. And Puerto Rico v. Shell Co., 302 U. S. 253, 264-266, reiterated that successive prosecutions by federal and territorial courts are impermissible because such courts are “creations emanating from the same sovereignty.” Similarly, in Waller v. Florida, 397 U. S. 387, we held that a city and the State of which it is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two- as separate sovereignties.

The respondent contends, and the Court of Appeals held, that the “dual sovereignty” concept should not apply to successive prosecutions by an Indian tribe and the United States because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government., Winton v. Amos, 255 U. S. 373, 391-392; In re Heff, 197 U. S. 488, 498-499; Lone Wolf v. Hitchcock, 187 U. S. 553; Talton v. Mayes, 163 U. S. 376, 384. Because o-f this all-encompassing federal power, the respondent argues that the tribes are merely “arms of the federal government” which, in the words of his brief, “owe their existence and vitality solely to the political department of the federal government.”

We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the “dual sovereignty” concept is applicable and those in which it is not. It is true that Territories are subject to the ultimate control of Congress, and cities to the control of the State which created them. But that fact was not relied upon as the basis for the decisions in Grafton, Shell Co., and Waller. What differentiated those cases from Bartkus and Abbate was not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken.

Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments “[derive] power from different sources,” each from the organic law that established it. United States v. Lanza, 260 U. S. 377, 382. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing, so each “is exercising its own sovereignty, not that of the other.” Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State’s own sovereignty which is the origin of its power.

By contrast, cities are not sovereign entities. “Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Reynolds v. Sims, 377 U. S. 533, 575. A city is nothing more than “an agency of the State.” Williams v. Eggleston, 170 U. S. 304, 310. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power “derive [s] . . . from the source of [its] creation.” Mount Pleasant v. Beckwith, 100 U. S. 514, 524. As we said in Waller v. Florida, supra, at 393, “the judicial power to try petitioner ... in municipal court springs from the same organic law that created the state court of general jurisdiction.”

Similarly, a territorial government is entirely the creation of Congress, “and its judicial tribunals exert all their powers by authority of the United States.” Grafton v. United States, supra, at 354; see Cincinnati Soap Co. v. United States, 301 U. S. 308, 317; United States v. Kagama, 118 U. S. 375, 380; American Ins. Co. v. Canter, 1 Pet. 511, 542. When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as “an agency of the federal government.” Domenech v. National City Bank, 294 U. S. 199, 204-205.

Thus, in a federal Territory and the Nation, as in a city and a State, “[t]here is but one system of government, or of laws operating within [its] limits.” Benner v. Porter, 9 How. 235, 242. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone. And the “dual sovereignty” concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes.

Ill

It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain “a separate people, with the power of regulating their internal and social relations.” United States v. Kagama, supra, at 381-382; Cherokee Nation v. Georgia, 5 Pet. 1, 16. Their right oh internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U. S. 641, 643 n. 2; Talton v. Mayes, 163 U. S., at 380; Ex parte Crow Dog, 109 U. S. 656, 571-572; see 18 U. S. C. § 1152 (1976 ed.), infra, n. 21. As discussed above in Part II, the controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?

A

The powers of Indian tribes are, in general, “inherent powers of a limited sovereignty which has never been extinguished.” F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political communities. See McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.

Indian tribes are, of course, no longer “possessed of the full attributes of sovereignty.” United States v. Kagama, supra, at 381. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.

But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory .... [They] are a good deal more than 'private, voluntary organizations.’ ” United States v. Mazurie, 419 U. S. 544, 557; see also Turner v. United States, 248 U. S. 354, 354-355; Cherokee Nation v. Georgia, supra, at 16-17. The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. See Oliphant v. Suquamish Indian Tribe, ante, p. 191.

B

It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that “[ijmplicit in these treaty terms . . . was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.” Williams v. Lee, 358 U. S. 217, 221-222; see also Warren Trading Post v. Tax Comm’n, 380 U. S. 685.

Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe’s jurisdiction over its members. The first Indian Trade and Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided only that the Federal Government would punish offenses committed against Indians by “any citizen or inhabitant of the United States”; it did not mention crimes committed by Indians. In 1817 federal criminal jurisdiction was extended to crimes committed within the Indian country by “any Indian, or other person or persons,” but “any offence committed by one Indian against another, within any Indian boundary” was excluded. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, § 25, 4 Stat. 733, Congress enacted the direct progenitor of the General Crimes Act, now 18 U. S. C. § 1152 (1976 ed.), which makes federal enclave criminal law generally applicable to crimes in “Indian country.” In this statute Congress carried forward the intra-Indian offense exception because “the tribes have exclusive jurisdiction” of such offenses and “we can [not] with any justice or propriety extend our laws to” them. H. It. Rep. No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854 Congress expressly recognized the jurisdiction of tribal courts when it added another exception to the General Crimes Act, providing that federal courts would not try an Indian “who has been punished by the local law of the tribe.” Act of Mar. 27,1854, § 3,10 Stat. 270. Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it.

Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668; Johnson v. M’Intosh, 8 Wheat. 543, 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, ante, p. 191.

These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status. “[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence — its right to self government, by associating with a stronger, and taking its protection.” Worcester v. Georgia, supra, at 560-561.

C

That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe.

It is true that in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe, like all Indian tribes, remains subject to ultimate federal control. Thus, before the Navajo Tribal Council created the present Tribal Code and tribal courts, the Bureau of Indian Affairs established a Code of Indian Tribal Offenses and a Court of Indian Offenses for the reservation. See 25 CFR Part 11 (1977); cf. 25 U. S. (¡3. § 1311. Pursuant to federal regulations, the present Tribal Code was approved by the Secretary of the Interior before becoming effective. See 25 CFR § 11.1 (e) (1977). Moreover, the Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U. S. C. § 476, and the Act of Apr. 19, 1950, § 6, 64 Stat. 46, 25 U. S. C. § 636, each authorized the Tribe to adopt a constitution for self-government. And the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U. S. C. § 1302, made most of the provisions of the Bill of Rights applicable to the Indian tribes and limited the punishment tribal courts could impose to imprisonment for six months, or a fine of $500, or both.

But none of these laws created the Indians’ power to* govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under “existing law.” See Powers of Indian Tribes, 55 I. D. 14 (1934). That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power.

In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government

D

The conclusion that an Indian tribe’s power to punish tribal offenders is part of its own retained sovereignty is clearly reflected in a case decided by this Court more than 80 years ago, Talton v. Mayes, 163 U. S. 376. There a Cherokee Indian charged with murdering another Cherokee in the Indian Territory claimed that his indictment by the Tribe was defective under the Grand Jury Clause of the Fifth Amendment. In holding that the Fifth Amendment did not apply to tribal prosecutions, the Court stated:

“The case . . . depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this Court have long since answered the former question in the negative. .. .
“True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. . . . But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States.” Id., at 382-384.

The relevance of Talton v. Mayes to the present case is clear. The Court there held that when an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government. Since tribal and federal prosecutions are brought by separate sovereigns, they are not “for the same offence,” and the Double Jeopardy Clause thus does not bar one when the other has occurred.

IV

The respondent contends that, despite the fact that successive tribal and federal prosecutions are not “for the same offence,” the “dual sovereignty” concept should be limited to successive state and federal prosecutions. But we cannot accept so restrictive a view of that concept, a view which, as has been noted, would require disregard of the very words of the Double Jeopardy Clause. Moreover, the same sort of “undesirable consequences” identified in Abbate could occur if successive tribal and federal prosecutions were barred despite the fact that tribal and federal courts are arms of separate sovereigns. Tribal courts can impose m> punishment in excess of six months’ imprisonment or a $500 fine. 25 U. S. C. § 1302 (7). On the other hand, federal jurisdiction over crimes committed by Indians includes many major offenses. 18 U. S. C. § 1153 (1976 ed.). Thus, when both a federal prosecution for a major crime and a tribal prosecution for a lesser included offense are possible, the defendant will often face the potential of a mild tribal punishment and a federal punishment of substantial severity. Indeed, the respondent in the present case faced the possibility of a federal sentence of 15 years in prison, but received a tribal sentence of no more than 75 days and a small fine. In such a case, the prospect of avoiding more severe federal punishment would surely motivate-a member of a tribe charged with the commission of an offense to seek to stand trial first in a tribal court. Were the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations would be frustrated.

This problem would, of course, be solved if Congress, in the exercise of its plenary power over the tribes, chose to- deprive them of criminal jurisdiction altogether. But such a fundamental abridgment of the powers of Indian tribes- might be thought as undesirable as the federal pre-emption of state criminal jurisdiction that would have avoided conflict in Bartkus and Abbate. The Indian tribes are “distinct political communities” with their own mores and laws, Worcester v. Georgia, 6 Pet., at 557; The Kansas Indians, 5 Wall. 737, 756, which can be enforced by formal criminal proceedings in tribal courts as well as by less formal means. They have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal custom and can differ greatly from our own. See Ex parte Crow Dog, 109 U. S., at 571.

Thus, tribal courts are important mechanisms for protecting significant tribal interests. Federal pre-emption of a tribe’s jurisdiction to punish its members for infractions of tribal law would detect substantially from tribal self-government, just as federal pre-emption of state criminal jurisdiction would trench upon important state interests. Thus, just as in Bartkus and Abbate, there are persuasive reasons to reject the respondent’s argument that we should arbitrarily ignore the settled “dual sovereignty” concept as it applies to successive tribal and federal prosecutions.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Brennan took no part in the consideration or decision of this case.

       The record does not make clear the details of the incident that led to the respondent’s arrest. After the bringing of the federal indictment an evidentiary hearing was held on the respondent’s motion to suppress statements he had made to police officers. This hearing revealed only that the respondent had been intoxicated at the time of his arrest; that his clothing had been disheveled and he had had a bloodstain on his face; that the incident had involved' a Navajo girl; and that the respondent claimed that he had been trying to help the girl, who had been attacked by several other boys.

       The record does not reveal how the sentence of the Navajo Tribal Court was carried out.

       The indictment charged that “[ojn or about the 16th day of October, 1974, in the District of Arizona, on and within the Navajo Indian Reservation, Indian Country, ANTHONY ROBERT WHEELER, an Indian male, did carnally know a female Indian . . . not his wife, who had not then attained the age of sixteen years but was fifteen years of age. In violation of Title 18, United States Code, Sections 1153 and 2032.”
      At the time of the indictment, 18 U. S. C. § 1153 provided in relevant part:
      “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, . . . carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, . . . 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.”
      The Major Crimes Act has since been amended in respects not relevant here. Indian Crimes Act of 1976, § 2, 90 Stat. 585.
      Title 18 U. S. C. § 2032 (1976 ed.), applicable within areas of exclusive federal jurisdiction, punishes carnal knowledge of any female under 16 years of age who is not the defendant’s wife by imprisonment for up to 15 years.-

       The holding of the District Court and the Court of Appeals that the tribal offense of contributing toi the delinquency of a minor was included within the federal offense of statutory rape is not challenged here by the Government.

       The decision of the District Court is unreported.

       In a later case, the Court of Appeals for the Eighth Circuit held that the Double Jeopardy Clause does not bar successive tribal and federal prosecutions for the same offense, expressly rejecting the view of the Ninth Circuit in the present case. United States v. Walking Crow, 560 F. 2d 386. See also United States v. Elk, 561 F. 2d 133 (CA8); United States v. Kills Plenty, 466 F. 2d 240, 243 n.3 (CA8).

       Although the problems arising from concurrent federal and state criminal jurisdiction had been noted earlier, see Houston v. Moore, 5 Wheat. 1, the Court did not clearly address the issue until Fox v. Ohio, 5 How. 410, United States v. Marigold, 9 How. 560, and Moore v. Illinois, 14 How. 13, in the mid-19th century. Those cases upheld the power of States and the Federal Government to make the same act criminal; in each case the possibility of consecutive state and federal prosecutions was raised as an objection to concurrent jurisdiction, and was rejected by the Court on the ground that such multiple prosecutions, if they occurred, would not constitute double jeopardy. The first case in which actual multiple prosecutions were upheld was United States v. Lanza, 260 U. S. 377, involving a prosecution for violation of the Volstead Act, ch. 85, 41 Stat. 305, after a conviction for criminal violation of liquor laws of the State of Washington.

       In Abbate itself the petitioners had received prison terms of three months on their state convictions, but faced up to five years’ imprisonment on the federal charge. 359 U. S., at 195. And in Bartkus the Court referred to Screws v. United States, 325 U. S. 91, in which the same facts could give rise to a federal prosecution under what are now 18 U. S. C. §§ 242 and 371 (1976 ed.) (which then carried maximum penalties of one and two years’ imprisonment) and a state prosecution for murder, a capital offense. “Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines.” Bartkus v. Illinois, 359 U. S. 121, 137.

       The prohibition against double jeopardy had been made applicable to the Philippines by Act of Congress. Act of July 1, 1902, § 5, 32 Stat. 692. In a previous case, the Court had held it unnecessary to decide whether the Double Jeopardy Clause would have applied within the Philippines of its own force in the absence of this statute. Kepner v. United States, 195 U. S. 100, 124-125.

        Colliflower v. Garland, 342 F. 2d 369, 379 (CA9).

        Binns v. United States, 194 U. S. 486, 491; De Lima v. Bidwell, 182 U. S. 1, 196-197; Mormon Church v. United States, 136 U. S. 1, 42; Murphy v. Ramsey, 114 U. S. 15, 44-45.

        Trenton v. New Jersey, 262 U. S. 182, 187; Hunter v. Pittsburgh, 207 U. S. 161, 178-179; Williams v. Eggleston, 170 U. S. 304, 310; Mount Pleasant v. Beckwith, 100 U. S. 514, 529; see 2 E. McQuillin, Law of Municipal Corporations § 4.03 (3d ed. 1966).

       Indeed, in the Shell Co. case the Court noted that Congress had given Puerto Rico “an autonomy similar to that of the states . . . .” 302 U. S, at 262.

       Cf. United States v. Lanza, 260 U. S., at 379-382, holding that a State’s power to enact prohibition laws did not derive from the Eighteenth Amendment’s provision that Congress and the States should have concurrent jurisdiction in that area, but rather from the State’s inherent sovereignty.

       See also Trenton v. New Jersey, supra, at 185-186; Hunter v. Pittsburgh, supra, at 178; Worcester v. Street R. Co., 196 U. S. 539, 548; Barnes v. District of Columbia, 91 U. S. 540, 544.

       Indeed, the relationship of a Territory to the Federal Government has been accurately compared to the relationship between a city and a State. Dorr v. United, States, 195 U. S. 138, 147-148, quoting T. Cooley, General Principles of Constitutional Law 164-165 (1880); see National Bank v. County of Yankton, 101 U. S. 129, 133.

         Cf. Gonzales v. Williams, 192 U. S. 1, 13; American Ins. Co. v. Canter, 1 Pet. 511, 542.

       Thus, unless limited by treaty or statute, a tribe has the power to determine tribe membership, Cherokee Intermarriage Cases, 203 U. S. 76; Roff v. Burney, 168 U. S. 218, 222-223; to regulate domestic relations among tribe members, Fisher v. District Court, 424 U. S. 382; cf. United States v. Quiver, 241 U. S. 602; and to prescribe rules for the inheritance of property. Jones v. Meehan, 175 U. S. 1, 29; United States ex rel. Mackey v. Coxe, 18 How. 100.

       See infra, at 326.

       The first treaty was signed at Canyon de Chelly in 1849, and ratified by Congress in 1850. 9 Stat. 974. The second treaty was signed and ratified in 1868. 15 Stat. 667.

       Title 18 U. S. C. § 1152 (1976 ed.) now provides:
      “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
      "This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to, any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to' the Indian tribes respectively.”
      Despite the statute's broad language, it does not apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction. United States v. McBratney, 104 U. S. 621.

       This statute is not applicable to the present case. The Major Crimes Act, under which the instant prosecution was brought, was enacted in 1885. Act of Mar. 3, 1885, § 9, 23 Stat. 385. It does not contain any exception for Indians punished under tribal law. We need not decide whether this “ 'carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes' to punish Indians for crimes committed on Indian land,’ ” United States v. Antelope, 430 U. S. 641, 643 n. 1, deprives a tribal court of jurisdiction over the enumerated offenses, since the crimes to which the respondent pleaded guilty in the Navajo Tribal Court are not among those enumerated in the Major Crimes Act. Cf. Oliphant v. Suquamish Indian Tribe, ante, at 203-204, n. 14.

       See S. Rep. No. 268, 41st Cong., 3d Sess., 10 (1870):
      “Their right of self government, and to administer justice among themselves, after their rude fashion, even to the extent of inflicting the death penalty, has never been questioned; and . . . the Government has carefully abstained from attempting to regulate their domestic affairs, and from punishing crimes committed by one Indian against another in the Indian country.”

       This Court has referred to treaties made with the Indians as “not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” United States v. Winans, 198 U. S. 371, 381.

       The tribal courts were established in 1958, and the law-and-order provisions of the Tribal Code in 1959, by resolution of the Navajo Tribal Council. See Titles 7 and 17 of the Navajo Tribal Code; Oliver v. Udall, 113 U. S. App. D. C. 212, 306 F. 2d 819.

       Such Courts of Indian Offenses, or “CFR Courts,” still exist on approximately 30 reservations “in which traditional agencies for the enforcement of tribal law and custom have broken down [and] no adequate substitute has been provided.” 25 CFR § 11.1 (b) (1977). We need not decide today whether such a court is an arm of the Federal Government or, like the Navajo Tribal Court, derives its powers from the inherent sovereignty of the tribe.

       The Department of Interior, charged by statute with the responsibility for “the management of all Indian affairs and of all matters arising out of Indian relations,” 25 IT. S. C. § 2, clearly is of the view that tribal self-government is a matter of retained sovereignty rather than congressional grant. Department of the Interior, Federal Indian Law 398 (1958); Powers of Indian Tribes, 55 I. D. 14, 56 (1934). See also 1 Final Report of the American Indian Policy Review Commission 99-100, 126 (1977).

       By emphasizing that the Navajo Tribe never lost its sovereign power to try tribal criminals, we do not mean to imply that a tribe which was deprived of that right by statute or treaty and then regained it by Act of Congress would necessarily be an arm of the Federal Government. That interesting question is not before us, and we express no opinion thereon.

       Cf. Mescalero Apache Tribe v. Jones, 411 U. S. 145, holding that a business enterprise operated off the reservation by a tribe was not a “federal instrumentality” free from state taxation.

       Federal jurisdiction also extends to crimes committed by an Indian against a non-Indian which have not been punished in tribal court, 18 U. S. C. § 1152 (1976 ed.); see n. 21, supra, and to crimes over which there is federal jurisdiction regardless of whether an Indian is involved, such as assaulting a federal officer, 18 U. S. C. § 111 (1976 ed.). Stone v. United States, 506 F. 2d 561 (CA8).

       See Keeble v. United States, 412 U. S. 205, 209-212, describing the reasons for enactment of the Major Crimes Act, 18 U. S. C. § 1153 (1976 ed.).

       Moreover, since federal criminal jurisdiction over Indians extends as well to offenses as to which there is an independent federal interest to- be protected, see n. 30, supra, the Federal Government could be deprived of the power to protect those interests as well.

       “ ‘Navaho’ is not their own word for themselves. In their own language, they are dine, ‘The People.’ . . . This term is a constant reminder that the Navahos still constitute a society in which each individual has a strong sense of belonging with the others who speak the same language and, by the same token, a strong sense of difference and isolation from the rest of humanity.” C. Kluckhohn & D. Leighton, The Navaho 23 (Rev. ed. 1974).

       Traditional tribal justice tends to be informal and consensual rather than adjudicative, and often emphasizes restitution, rather than punishment. See 1 Final Report of the American Indian Policy Review Commission 160-166 (1977); W. Hagan, Indian Police and Judges 11-17 (1966); Van Valkenburgh, Navajo Common Law, 9 Museum of Northern Arizona Notes 17 (1936); id., at 51 (1937); 10 id., at 37 (1938). See generally materials in M. Price, Law and the American Indian 133-150, 712-716 (1973).

       Tribal courts of all kinds, including Courts of Indian Offenses, see n. 26, supra, handled an estimated 70,000 cases in 1973. 1 Final Report of the American Indian Policy Review Commission 163-164 (1977).


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Stevens,

license: Public Domain

text:
    LAKESIDE v. OREGON
    No, 76-6942.
    Argued January 18, 1978
    Decided March 22, 1978
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined in part, post, p. 342. Brennan, J., took no part in the consideration or decision of the case.

      Phillip M. Margolin, by appointment of the Court, 434 U. S. 918, argued the cause and filed a brief for petitioner.

      Thomas H. Denney, Assistant Attorney General of Oregon, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Al J. Laue, Solicitor General.
   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner did not take the witness stand at his trial on a criminal charge in a state court. Over his objection the trial judge instructed the jury not to draw any adverse inference from the petitioner’s decision not to testify. The question before us is whether the giving of such an instruction over the defendant’s objection violated the Constitution.

I

The petitioner was brought to trial in an Oregon court on a charge of escape in the second degree. The evidence showed that he had been an inmate of the Multnomah County Correctional Institution, a minimum-security facility in Multnomah County, Ore. On June 16, 1975, he received a special overnight pass requiring him to return by 10 o’clock the following evening. He did not return. The theory of the defense, supported by the testimony of a psychiatrist and three lay witnesses, was that the petitioner was not criminally responsible for his failure to return to the institution.

At the conclusion of the evidence, the trial judge informed counsel in chambers that he intended to include the following instruction in his charge to the jury:

“Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.”

Defense counsel objected to the giving of that instruction, and, after it was given, the following colloquy took place in chambers:

[Defense Counsel]: . . . I have one exception.
“I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn’t have to take the stand, because I felt that that’s like waving a red flag in front of the jury....
“THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf.
“The Court felt that it was necessary to give that instruction in order to properly protect the defendant, and therefore, the defendant may have his exception.”

The Oregon Court of Appeals reversed the petitioner’s conviction and ordered a new trial on the ground that “the better rule is to not give instructions ostensibly designed for defendant’s benefit over the knowledgeable objection of competent defense counsel.” 25 Ore. App. 539, 542, 549 P. 2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection of counsel did not violate the constitutional rights of the defendant. 277 Ore. 569, 561 P. 2d 612.

The petitioner then sought review in this Court, claiming that the instruction infringed upon both his constitutional privilege not to be compelled to incriminate himself, and his constitutional right to the assistance of counsel. Because of conflicting decisions in several other courts, we granted certiorari, 434 U. S. 889.

II

A

The Fifth Amendment commands that no person “shall be compelled in any criminal case to be a witness against himself.” This guarantee was held to be applicable against the States through the Fourteenth Amendment in Malloy v. Hogan, 378 U. S. 1. That case, decided in 1964, established that “the same standards” must attach to the privilege “in either a federal or state proceeding.” Id., at 11. Less than a year later the Court held in Griffin v. California, 380 U. S. 609, that it is a violation of this constitutional guarantee to tell a jury in a state criminal trial that a defendant’s failure to testify supports an unfavorable inference against him.

In Griffin, the prosecutor had encouraged the jury to draw adverse inferences from the defendant’s failure to respond to the testimony against him. And the trial judge had instructed the jury that as to evidence which the defendant might be expected to explain, his failure to testify could be taken “ 'into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may' be reasonably drawn therefrom those unfavorable to the defendant are the more probable.’ ” Id., at 610. In setting aside the judgment of conviction, the Court held that the Constitution “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615.

The Griffin opinion expressly reserved decision “on whether an accused can require . . . that the jury be instructed that his silence must be disregarded.” Id., at 615 n. 6. It is settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Ore. 610, 303 P. 2d 513. The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant’s objection.

In the Griffin case, the petitioner argues, the Court said that “comment on the refusal to testify” violates the constitutional privilege against compulsory self-incrimination, 380 U. S., at 614, and thus the “comment” made by the trial judge over the defendant’s objection in the present case was a literal violation of the language of the Griffin opinion. Quite apart from this semantic argument, the petitioner contends that it is an invasion of the privilege against compulsory self-incrimination, as that privilege was perceived in the Griffin case, for a trial judge to draw the jury’s attention in any way to a defendant’s failure to testify unless the defendant acquiesces. We cannot accept this argument, either in terms of the language of the Griffin opinion or in terms of the basic postulates of the Fifth and Fourteenth Amendments.

It is clear from even a cursory review of the facts and the square holding of the Griffin case that the Court was there concerned only with adverse comment, whether by the prosecutor or the trial judge — “comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615. The Court reasoned that such adverse comment amounted to “a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Id., at 614.

By definition, “a necessary element of compulsory self-incrimination is some kind of compulsion.” Hoffa v. United States, 385 U. S. 293, 304. The Court concluded in Griffin that unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant’s failure to take the witness stand. But a judge’s instruction that the jury must draw no adverse inferences of any kind from the defendant’s exercise of his privilege not to testify is “comment” of an entirely different order. Such an instruction cannot provide the pressure on a defendant found impermissible in Griffin. On the contrary, its very purpose is to remove from the jury’s deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.

The petitioner maintains, however, that whatever beneficent effect such an instruction may have in most cases, it may in some cases encourage the jury to draw adverse inferences from a defendant’s silence, and, therefore, it cannot constitutionally be given in any case when a defendant objects to it. Specifically, the petitioner contends that in a trial such as this one, where the defense was presented through several witnesses, the defendant can reasonably hope that the jury will not notice that he himself did not testify. In such circumstances, the giving of the cautionary instruction, he says, is like “waving a red flag in front of the jury.”

The petitioner’s argument would require indulgence in two very doubtful assumptions: First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own; second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all. Federal constitutional law cannot rest on speculative assumptions so dubious as these.

Moreover, even if the petitioner’s simile be accepted, it does not follow that the cautionary instruction in these circumstances violates the privilege against compulsory self-incrimination. The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. To instruct them in the meaning of the privilege against compulsory self-incrimination is no different.

It may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law. We hold only that the giving of such an instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments.

B

The petitioner’s second argument is based upon his constitutional right to counsel. Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25. That right was violated, he says, when the trial judge refused his lawyer’s request not to give the instruction in question, thus interfering with counsel’s trial strategy. That strategy assertedly was based upon studious avoidance of any mention of the fact that the defendant had not testified.

The argument is an ingenious one, but, as a matter of federal constitutional law, it falls of its own weight once the petitioner’s primary argument has been rejected. In sum, if the instruction was itself constitutionally accurate, and if the giving of it over counsel’s objection did not violate the Fifth and Fourteenth Amendments, then the petitioner’s right to the assistance of counsel was not denied when the judge gave the instruction. To hold otherwise would mean that the constitutional right to counsel would be implicated in almost every wholly permissible ruling of a trial judge, if it is made over the objection of the defendant’s lawyer.

In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel. But that right has never been understood to confer upon defense counsel the power to veto the wholly permissible actions of the trial judge. It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial. “ ‘[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.’ Quercia v. United States, 289 U. S. 466, 469 (1933).” Geders v. United States, 425 U. S. 80, 86.

The trial judge in this case determined in the exercise of his duty to give the protective instruction in the defendant’s interest. We have held that it was no violation of the defendant’s constitutional privilege for him to do so, even over the objection of defense counsel. Yet the petitioner argues that his constitutional right to counsel means that this instruction could constitutionally be given only if his lawyer did not object to it. We cannot accept the proposition that the right to counsel, precious though it be, can operate to prevent a court from instructing a jury in the basic constitutional principles that govern the administration of criminal justice.

For the reasons discussed in this opinion, the judgment of the Supreme Court of Oregon is affirmed.

It is so ordered.

Mr. Justice Brennan took no part in the consideration or decision of this case.

Mr. Justice Stevens,

dissenting.

Experience teaches us that most people formally charged with crime are guilty; yet we presume innocence until the trial is over. Experience also justifies the inference that most people who remain silent in, the face of serious accusation have something to hide and are therefore probably guilty; yet we forbid trial judges or juries to draw that inference. The presumption of innocence and the protections afforded by the Due Process Clause impose a significant cost on the prosecutor who must prove the defendant’s guilt beyond a reasonable doubt without the aid of his testimony. That cost is justified by the paramount importance of protecting a small minority of accused persons — those who are actually innocent — from wrongful conviction.

The Fifth Amendment itself is predicated on the assumption that there are innocent persons who might be found guilty if they could be compelled to testify at their own trials. Every trial lawyer knows that some truthful denials of guilt may be considered incredible by a jury — either because of their inherent improbability or because their explanation, under cross-examination, will reveal unfavorable facts about the witness or his associates. The Constitution therefore gives the defendant and his lawyer the absolute right to decide that the accused shall not become a witness against himself. Even if the judge is convinced that the defendant's testimony would exonerate him, and even if he is motivated only by a desire to protect the defendant from the risk of an erroneous conviction, the judge has no power to override counsel’s judgment about what is in his client’s best interest.

The Constitution wisely commits the critical decision of whether the defendant shall take the stand to the defendant and his lawyer, rather than the judge, for at least two reasons. First, they have greater access to information bearing on the decision than the judge can normally have. Second, they are motivated solely by concern for the defendant’s interests; the judge inevitably is concerned with society’s interest in convicting the guilty as well as protecting the innocent. The choice, therefore, to testify or not to testify is for the defendant and his lawyer, not the judge, to make. The Constitution commands that the decision be made free of any compulsion by the State.

In Griffin v. California, 380 U. S. 609, the Court held that fair and accurate comment by the trial judge on the defendant’s failure to take the witness stand was a form of compulsion forbidden by the Constitution. By making silence “costly,” the Court ruled, the trial judge’s comments had an effect similar in kind, though not in degree, to a contempt ruling or a thumbscrew. Id., at 614. Of course, a defendant’s silence at his own trial is “almost certain to prejudice the defense no matter what else happens in the courtroom”; for the jury will probably draw an unfavorable inference despite instructions to the contrary. Although this “cost” can never be eliminated, Griffin stands for the proposition that the government may not add unnecessarily to the risk taken by a defendant who stands mute. Reasonable men may differ about the wisdom of that holding. But if it is still the law, this conviction should be overturned.

In some trials, the defendant’s silence will be like “the sun . . . shining with full blaze on the open eye.” State v. Cleaves, 59 Me. 298, 301 (1871). But in other trials — perhaps when the whole story has been told by other witnesses or when the prosecutor’s case is especially weak — the jury may not focus on the defendant’s failure to testify. For the judge or prosecutor to call it to' the jury’s attention has an undeniably adverse effect on the defendant. Even if jurors try faithfully to obey their instructions, the connection between silence and guilt is often too direct and too natural to be resisted. When the jurors have in fact overlooked it, telling them to ignore the defendant’s silence is like telling them not to think of a white bear.

The Court thinks it “would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” Ante, at 339. Unless the same words mean different things in different mouths, this holding also applies to statements made by the prosecutor in his closing argument. Yet I wonder if the Court would find petitioner’s argument as strange if the prosecutor, or even the judge, had given the instruction three or four times, in slightly different form, just to make sure the jury knew that silence, like killing Caesar, is consistent with honor.®

It is unrealistic to assume that instructions on the right to silence always have a benign effect. At times the instruction will make the defendant’s silence costly indeed. So long as Griffin is good law, the State must have a strong reason for ignoring the defendant’s request that the instruction not be given. Remarkably, the Court fails to identify any reason for overriding the defendant’s choice. Eliminating the instruction on request costs the State nothing, other than the advantage of calling attention to the defendant’s silence. A defendant may waive his Fifth Amendment right to silence, and a judge who thinks his decision unwise may not overrule it. The defendant should also be able to waive, without leave of court, his lesser right to an instruction about his Fifth Amendment right to silence. Many state courts have accepted this conclusion by ruling that no self-incrimination instruction should be given over the defendant’s objection. An ungrudging application of Griffin requires that we do the same.

I respectfully dissent.

Mr. Justice Marshall joins this opinion, with the exception of the first paragraph and footnote 5.

       Section 162.155 of Ore. Rev. Stat. (1977) provides, in pertinent part:
      “(1) A person commits the crime of escape in the second degree if:
      "(c) He ¡escapes from a correctional facility."

       Section 161.295 of Ore. Rev. Stat. (1977) provides:
      "(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
      “(2) . . . [T]he terms 'mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

       The federal courts have generally held that giving the protective instruction over the defendant’s objection is not a constitutional violation. See, e. g., United States v. Williams, 172 U. S. App. D. C. 290, 295, 521 F. 2d 950, 955; United States v. McGann, 431 F. 2d 1104, 1109 (CA5); United States v. Rimanich, 422 F. 2d 817, 818 (CA7); but cf. Mengarelli v. United States Marshal ex rel. Dist. of Nevada, 476 F. 2d 617 (CA9); United States v. Smith, 392 F. 2d 302 (CA4). By contrast, several state courts have held, although not always in constitutional terms, that the giving of such an instruction in these circumstances is prejudicial error. See, e. g., Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (reversible error); People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (proscribed by Griffin v. California, 380 U. S. 609); Gross v. State, 261 Ind. 489, 306 N. E. 2d 371 (violates Fifth Amendment); State v. Kimball, 176 N. W. 2d 864 (Iowa) (may violate spirit of Griffin).

         The Malloy decision overruled the long-settled doctrine of Twining v. New Jersey, 211 U. S. 78, and Adamson v. California, 332 U. S. 46. See Snyder v. Massachusetts, 291 U. S. 97, 105; Cohen v. Hurley, 366 U. S. 117, 127-129.

       The practice held unconstitutional in Griffin had previously been the subject of considerable academic and professional controversy. See, e. g., Note, Comment on Defendant’s Failure to Take the Stand, 57 Yale L. J. 145 (1947); Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich. L. Rev. 226 (1932). Indeed, at one time the practice had enjoyed the approval of the American Law Institute and the American Bar Association. 9 ALI Proceedings 202, 203 (1931); 56 A. B. A. Rep. 137-159 (1931); 59 A. B. A. Rep. 130-141 (1934). And instructions similar to those at issue in Griffin had been sanctioned by the Model Code of Evidence and the Uniform Rules of Evidence. ALI Model Code of Evidence, Rule 201 (1942); Uniform Rules of Evidence, Rule 23 (4) (1953).

       In Tehan v. United States ex rel. Shott, 382 U. S. 406, it was held that the rule of Griffin v. California was not to be given retrospective application.

       It has long been established that a defendant in a federal criminal trial has that right as a matter of statutory law. Bruno v. United States, 308 U. S. 287.

       The petitioner also relies upon a remark in the dissenting opinion in United States v. Gainey, 380 U. S. 63, 73: or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone.” This reliance is misplaced. The Gainey case did not involve the Fifth Amendment; the statement in the dissenting opinion expressed the author’s understanding of a federal statute, not the Constitution; and, perhaps most important, the statement was subscribed to by no other Member of the Court.

       Compulsion was also found to be present in Brooks v. Tennessee, 406 U. S. 605, where the State required a defendant who chose to testify to take the witness stand ahead of any other defense witnesses. Thus a defendant was compelled to make his decision — whether or not to testify — at a point in the trial when he could not know if his testimony would be necessary or even helpful to his case. Id., at 610-611.

       It has often been noted that such inferences may be inevitable. Jeremy Bentham wrote more than 150 years ago: “[Bjetween delinquency on the one hand, and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable.” 5 J. Bentham, Rationale of Judicial Evidence 209 (1827). And Wigmore, among many others, made the same point: "What inference does a plea of privilege support? The layman’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.” 8 J. Wigmore, Evidence §2272, p. 426 (McNaughton rev. 1961).

       As this Court has remarked before: “[W]e have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court . . . .” Bruno v. United States, supra, at 294.

       More than 50 years ago, Judge Learned Hand dealt with this question in a single sentence: “It is no. doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.” Becher v. United States, 5 F. 2d 45, 49 (CA2).

       “But the act was framed with a due regard also to those who might prefer to-rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him,, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him.” Wilson v. United States, 149 U. S. 60, 66.
      The Court was there referring to the statutory prohibition against comment on the failure of the accused to testify. But, as we stated in Griffin v. California, 380 U. S. 609, 613-614: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected.”

       Moreover, there are defendants who prefer to risk a finding of guilt rather than being required to incriminate others whom they either love or fear.

        Griffin was decided over the dissent of Mr. Justice Stewart and Mr. Justice White. I cannot believe that any Member of the Griffin majority would join today’s opinion.

        United States v. Davis, 437 F. 2d 928, 933 (CA7 1971).

       The Court today cites the same scholarly materials, prepared in the 1930’s and 1940’s, that Mr. Justice Stewart cited in his dissent in Griffin. Compare ante, at 337 n. 5 with 380 U. S., at 622 nn. 6-8. The list could have been much longer. In fact, the roster of scholars and judges with reservations about expanding the Fifth Amendment privilege reads like an honor roll of the legal profession. See, e. g., Wigmore, Nemo Tenetur Seipsum Prodere, 5 Harv. L. Rev. 71, 75-88 (1891); Corwin, The Supreme Court’s Construction of the Self-Incrimination Clause, 29 Mich. L. Rev. 191, 207 (1930); Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. Crim. L. C. & P. S. 1014 (1934); Friendly, The Fifth Amendment Tomorrow: The Case For Constitutional Change, 37 U. Cin. L. Rev. 671 (1968); W. Schaefer, The Suspect and Society 59-76 (1967); Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 677 (1966).

       Cf. W. Shakespeare, Julius Caesar, Act III, Sc. II :
      “Here, under leave of Brutus and the rest (For Brutus is an honourable man;
      So are they all, all honourable men)
      Come I to speak in Caesar’s funeral.
      He was my friend, faithful and just to me:
      But Brutus says he was ambitious;
      And Brutus is an honourable man.
      He hath brought many captives home to Rome,
      Whose ransoms did the general coffers fill:
      Did this in Caesar seem ambitious?
      When that the poor have cried, Caesar hath wept:
      Ambition should be made of sterner stuff:
      Yet Brutus says he was ambitious;
      And Brutus is an honourable man.
      You all did see that on the Lupercal I thrice presented him a kingly crown,
      Which he did thrice refuse: was this ambition?
      Yet Brutus says he was ambitious;
      And, sure, he is an honourable man.”
      For the sake of comparison, here is a charge actually given in one reported case:
      “ 'I recall that the defendant, even though he offered evidence, he did not take the stand and testify in his own behalf. Now, I make mention of that fact for this purpose. I have told you that he had no responsibility to offer any evidence, had a right to but no responsibility to; that he owed you no duty to offer any evidence; that the State had the whole burden and has the whole burden of proof throughout this ease. Now that being so, he had an absolute right under the law to try his lawsuit in the fashion that he decided that it ought to be tried. He had a right to offer no evidence. If he offered any, he had a right to remain off the stand. You can’t punish any man for exercising a lawful right. So I give emphasis to this fact: The fact that the defendant did not testify does not permit you to speculate about why he did not. I have told you why he did not. He has exercised a lawful right. You may not taire the position during your deliberations did he have something he didn’t want us to know. He has exercised the lawful right and you may not hold it against him to any extent the fact that he did not testify. You must deal with what you have before you in this evidence and you may not hold against the defendant a’taE the fact that he did not testify.’ ” State v. Caron, 288 N. C. 467, 471-472, 219 S. E. 2d 68, 71 (1975), cert. denied, 425 U. S. 971.

       Deciding when the instruction will do more harm than good is not an easy task. But the same may be said of deciding whether to take the stand at all.

       How far the Court deviates from the course charted in Griffin may be seen by comparing its reasoning to the analysis in an earlier case that followed Griffin more faithfully. In Brooks v. Tennessee, 406 U. S. 605, state law required the defendant to be the first defense witness if he wanted to testify at all. Since defendants may not be sequestered like other witnesses, this rule was the only way to prevent opportunistic defendants from shading their testimony to match that of other defense witnesses. Despite the substantial state interest in avoiding perjury, this Court struck down the rule, relying on Griffin. 406 U. S., at 611. The Brooks court thought that a defendant who planned to take the stand only if his case was weak, but who could not judge its weakness in advance, might be imnecessarEy compelled to testify under the Tennessee law. In Brooks, the State had a good reason for it's action; here the State has none. In Brooks, the compulsive force of the rule was speculative at best; here it is direct and plain. If today we are true to Griffin, as the Court asserts, then Brooks was surely wrong.

       It is true that Learned Hand thought it absurd to find a violation of the Fifth Amendment when an instruction of this sort was given over the defendant’s objection. Ante, at 341 n. 12. See Becher v. United States, 5 F. 2d 45, 49 (CA2 1924). But Judge Hand did not foresee Griffin, just as he did not foresee developments that were nearer at hand. In United States v. Bruno, 105 F. 2d 921 (CA2 1939), for example, he joined an opinion affirming a conviction even though the trial judge had refused to instruct the jury not to penalize the defendants for remaining silent. This Court granted certiorari and reversed. 308 U. S. 287. Now that Griffin has been decided, the more significant portion of Judge Hand’s statement is his belief that "[i]t is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it.” 5 F. 2d, at 49.

       See People v. Hampton, 394 Mich. 437, 231 N. W. 2d 654 (1975); Gross v. State, 261 Ind. 489, 306 N. E. 2d 371 (1974); State v. White, 285 A. 2d 832 (Me. 1972); Villines v. State, 492 P. 2d 343 (Okla. Crim. App. 1971); State v. Kimball, 176 N. W. 2d 864 (Iowa 1970); Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (1966); People v. Horrigan, 253 Cal. App. 2d 519, 61 Cal. Rptr. 403 (1967); People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (1967). See also United States v. Smith, 392 F. 2d 302 (CA4 1968).