author: Justice Brennan

text:
    UNITED STATES v. DANN ET AL.
    No. 83-1476.
    Argued November 5, 1984
    Decided February 20, 1985

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

      Assistant Attorney General McConnell argued the cause for the United States. On the briefs were Solicitor General Lee, Assistant Attorney General Habicht, Joshua I. Schwartz, Jacques B. Gelin, Dean K. Dunsmore, and Robert L. Klarquist.

      John D. O’Connell argued the cause and filed a brief for respondents.

        William T. Finley, Jr., filed a brief for the American Land Title Association as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the Indian Law Resource Center by Steven M. Tullberg and Robert T. Coulter; and for the Western Shoshone National Council by Thomas E. Luebben and Richard W. Hughes.

   Justice Brennan

delivered the opinion of the Court.

The question presented in this case is whether the appropriation of funds into a Treasury account pursuant to 31 U. S. C. §724a (1976 ed., Supp. V) constitutes “payment” under § 22(a) of the Indian Claims Commission Act, 60 Stat. 1055, 25 U. S. C. § 70u(a) (1976 ed.).

r-H

This case is an episode in a longstanding conflict between the United States and the Shoshone Tribe over title to lands in the western United States. In 1951 certain members of the Shoshone Tribe sought compensation for the loss of aboriginal title to lands located in California, Colorado, Idaho, Nevada, Utah, and Wyoming. Eleven years later, the Indian Claims Commission entered an interlocutory order holding that the aboriginal title of the Western Shoshone had been extinguished in the latter part of the 19th century, Shoshone Tribe v. United States, 11 Ind. Cl. Comm’n 387, 416 (1962), and later awarded the Western Shoshone in excess of $26 million in compensation. Western Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm’n 318 (1977). The Court of Claims affirmed this award. Temoak Band of Western Shoshone Indians v. United States, 219 Ct. Cl. 346, 593 F. 2d 994 (1979). On December 6, 1979, the Clerk of the Court of Claims certified the Commission’s award to the General Accounting Office. Pursuant to 31 U. S: C. §724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award and deposited it for the Tribe in an interest-bearing trust account in the Treasury of the United States.

Under 25 U. S. C. § 1402(a) and § 1403(a), the Secretary of the Interior is required, after consulting with the Tribe, to submit to Congress within a specified period of time a plan for the distribution of the fund. In this case, the Secretary has yet to submit a plan of distribution of the $26 million owing to the refusal of the Western Shoshone to cooperate in devising the plan. The fund apparently has now grown to $43 million. Reply Brief for United States 20.

In 1974, the United States brought an action in trespass against two sisters, Mary and Carrie Dann, members of an autonomous band of the Western Shoshone, alleging that the Danns, in grazing livestock without a permit from the United States, were acting in violation of regulations issued by the Secretary of the Interior under the authority of the Taylor Grazing Act, 43 U. S. C. §315b. The 5,120 acres at issue in the suit are located in the northeast corner of Nevada. In response to the United States’ suit, the Danns claimed that the land has been in the possession of their family from time immemorial and that their aboriginal title to the land precluded the Government from requiring grazing permits. The United States District Court for the District of Nevada rejected the Danns’ argument and ruled that aboriginal title had been extinguished by the collateral-estoppel effect of the Indian Claims Commission’s judgment in 1962. United States v. Mary and Carrie Dann, Civil No. R-74-60 (Jan. 5, 1977). The Court of Appeals for the Ninth Circuit reversed and remanded, however, on the ground that “[wjhatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the litigation . . . , the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided.” United States v. Dann, 572 F. 2d 222, 226-227 (1978).

On remand, the District Court held that aboriginal title was extinguished when the final award of the Indian Claims Commission was certified for payment on December 6, 1979. Civil No. R-74-60 (Apr. 25, 1980). On appeal, the Government defended the judgment of the District Court,on the ground that the “full discharge” language of § 22(a) of the Indian Claims Commission Act, see n. 2, supra, precluded the Danns from raising the defense of aboriginal title. Although Congress had not yet approved a plan for the distribution of the funds to the Western Shoshone, the United States maintained that the requirement of “payment” under § 22(a) was satisfied by the congressional appropriation of the $26 million award into the Treasury account. The Danns argued that until Congress approved a plan for the distribution of the money to the Tribe, “payment” was not satisfied.

The Court of Appeals held that “payment” had not occurred within the meaning of § 22(a) and reversed the District Court. 706 F. 2d 919, 926 (1983). The court reasoned that until a plan of distribution was adopted by the Congress, there remained “significant legal blocks in the way of delivery to the payee,” and thus the “ordinary meaning” of payment was not satisfied. We granted certiorari to resolve the question of whether the certification of the award and appropriation under § 724a constitutes payment under § 22(a). 467 U. S. 1214 (1984). We reverse.

HH

H-H

The legislative purposes of the Indian Claims Commission Act arid the principles of payment under the common law of trust as they have been applied to the context of relations between native American communities and the United States require that we hold that “payment” occurs under § 22(a) when funds are placed by the United States into an account in the Treasury of the United States for the Tribe pursuant to 31 U. S. C. §724a (1976 ed., Supp. V).

A

The Indian Claims Commission Act had two purposes. The “chief purpose of the [Act was] to dispose of the Indian claims problem with finality.” H. R. Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945). This purpose was effected by the language of § 22(a): “When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims . . . .” Section 22(a) also states that the “payment of any claim . . . shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.” To hold, as the court below has, that payment does not occur until a final plan of distribution has been approved by Congress would frustrate the purpose of finality by postponing the preclusive effects of § 22(a) while subjecting the United States to continued liability for claims and demands that “touch” the matter previously litigated and resolved by the Indian Claims Commission.

The second purpose of the Indian Claims Commission Act was to transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of native American claims. In the course of hearings on the creation of the Indian Claims Commission, Congressman Henry Jackson, Chairman of the House Committee on Indian Affairs, made this clear:

. . [T]he very purpose of this act, the reason we are coming to Congress, is that we are being harassed constantly by various individual pieces of legislation. I do not want to act on separate legislation and Congress is being told to act on those bills, without knowing the facts, and the purpose of this legislation will be to dispose of all those routine claims and let the commission decide what the obligation is of this Government to the Indians; and, acting upon those findings made by the Commission, Congress will appropriate the money.” Hearings on H. R. 1198 and H. R. 1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 68 (1945).

During the floor debate on the Act, Congressman Jackson observed that the House was acting in response to a study by the Brookings Institution that had concluded that “there ought to be a prompt and final settlement of all claims between the Government and its Indian citizens, and that the best way to accomplish this purpose is to set up temporarily an Indian Claims Commission which will sift all these claims, subject to appropriate judicial review, and bring them to a conclusion once and for all.” 92 Cong. Rec. 5312 (1946).

Prior to the adoption of the Indian Claims Commission Act by the House of Representatives, Attorney General Clark issued the following warning:

“The bill would provide that when the report of the Commission determining any claimant to be entitled to recover has been filed with the Congress, such report would have the effect of a final judgment to be paid in like manner as are judgments of the Court of Claims. This provision would make the Commission virtually a court with the power to determine claims based both upon legal and moral grounds rather than a fact finding body as an aid to Congress. In view of the vague basis upon which many of the claims presented to the Commission would be predicated, and the extremely novel character of the functions delegated to the Commission, the question is raised of whether or not the recognition of the claims should not rest finally with Congress. The provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government.” Id., at 5311 (letter to Congressman John Cochran in response to his request for the Attorney General’s “views with respect to the bill (H. R. 4497) to create a Indian Claims Commission.” Id., at 5310).

Despite this warning, the House left the language of the Act unchanged. The Senate, however, deleted from the House bill the language that Attorney General Clark asserted would give the decisions of the Indian Claims Commission the effect of a final judgment binding upon Congress. The Conference adopted the House version “in order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed [by the Court of Claims], have the same finality as judgments of the Court of Claims.” H. R. Conf. Rep. No. 2693, 79th Cong., 2d Sess., 8 (1946). As enacted, the Indian Claims Commission Act explicitly incorporated this standard of finality in § 22(a).

The court below justified its decision on the ground that in making “payment” turn on the submission and approval of a final plan of distribution, Congress would have one last opportunity to review the merits of claims litigated before the Indian Claims Commission. 706 F. 2d, at 927. This justification for delay obviously conflicts with the purpose of relieving Congress of the burden of having to resolve these claims.

B

Aside from its departure from the purposes of the Indian Claims- Commission Act, the Court of Appeals’ interpretation is in conflict with the accepted legal uses of the word “payment” — uses we assume Congress intended to adopt when it enacted § 22(a). To accept the argument of the Court of Appeals would give the word “payment” a meaning that differs markedly from its common-law meaning, which has long been applied by this Court to the relations between native American tribes and the United States.

The common law recognizes that payment may be satisfied despite the absence of actual possession of the funds by the creditor. Funds transferred from a debtor to an agent or trustee of the creditor constitute payment, and it is of no consequence that the creditor refuses to accept the funds from the agent or the agent misappropriates the funds. The rationale for this is that fiduciary obligations and the rules of agency so bind the trustee or agent to the creditor (i. e., the beneficiary or principal) as to confer effective control of the funds upon the creditor.

The Court has applied these principles to relations between native American communities and the United States. In Seminole Nation v. United States, 316 U. S. 286 (1942), the United States was obligated by treaty to pay annual annuities to members of the Seminole Nation. Instead, the Government transferred the money to the Seminole General Council. Members of the Tribe argued that because the Seminole General Council had- misappropriated the money, the Government had not satisfied its obligation to pay the individual members of the Tribe. In disposing of the case, the Court relied upon the rule that “a third party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is a participant in the breach of trust and liable therefor to the beneficiary.” Id., at 296. The Court’s holding was based on its recognition of the traditional rule that a debtor’s payment to a fiduciary of the creditor satisfies the debt. Absent actual knowledge of the fraudulent intent of the trustee — or some other recognized exception to the general rule — the Government’s payment to the Council would have discharged its treaty obligations. Ibid. The order remanding the case for purposes of determining whether the Government had fraudulent intent, id., at 300, would have made sense only if the Court believed that, absent such knowledge, the Government’s treaty obligations were discharged.

The Court’s reliance on the general rule in Seminole Nation is authority for our holding that the United States has made “payment” under § 22(a). The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a manner consistent with the best interests of the Tribe. In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. Once the money was deposited into the trust account, payment was effected.

Ill

The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the “final discharge” of § 22(a) does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain contexts, this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion as to its merits.

The judgment of the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

       The statute provided:
      “There are appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment, not otherwise provided for, as certified by the Comptroller General, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of . . . awards rendered by the Indian Claims Commission . . . .”

       The statute provided:
      “When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission.
      “The payment of any claim, after its determination in accordance with this Act, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.”
      The Indian Claims Commission was terminated on September 30, 1978, pursuant to 25 U. S. C. § 70v (1976 ed.).

       For a discussion of aboriginal title, see Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667 (1974); Johnson v. McIntosh, 8 Wheat. 543, 573-574 (1823); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); F. Cohen, Handbook of Federal Indian Law 486-493 (1982). On the theoretical origins of aboriginal rights, see J. Scott, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (1934); Cohen, Spanish Origin of Indian Rights, 31 Geo. L. J. 1 (1942); Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947).

       Section 2 of the Indian Claims Commission Act, 60 Stat. 1050, as amended, 25 U. S. C. § 70a (1976 ed.), authorized claims to be brought on behalf of “any Indian tribe, band, or other identifiable group of American Indians” for “claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant. . . .”

       Section 20(b) of the Indian Claims Commission Act, 60 Stat. 1054, as amended, 25 U. S. C. § 70s(b) (1976 ed.), provided for an appeal to the Court of Claims from any “final determination” of the Indian Claims Commission.

       The statute provides:
      “Within one year after appropriation of funds to pay a judgment of the Indian Claims Commission. . . , the Secretary of the Interior shall prepare and submit to Congress a plan for the use and distribution of the funds.”

       The statute provides:
      “The Secretary shall prepare a plan which shall best serve the interests of all those entities and individuals entitled to receive funds of each Indian judgment. Prior to the final preparation of the plan, the Secretary shall—
      “(1) receive and consider any resolution or communication, together with any suggested use or distribution plan, which any affected Indian tribe may wish to submit to him; and
      “(2) hold a hearing of record, after appropriate public notice, to obtain the testimony of leaders and members of the Indian tribe which may receive any portion, or be affected by the use or distribution, of such funds . . . .”

       See Steward, The Foundations of Basin-Plateau Shoshonean Society, in Languages and Cultures of Western North America 113, 115 (E. Swanson ed. 1970) (“ ‘[B]and’ can have no precise definition. Although it generally signifies cohesion and interaction between families that constitute a group of permanent membership, it may range in size from a few families that are closely related to many families which include some not related, or it may be structured on unilineal or bilateral principles, and interaction between the families may take many forms”).

       The statute provides:
      “The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range, upon the payment annually of reasonable fees in each case to be fixed or determined from time to time in accordance with governing law.”

       On the finality of judgments of the Court of Claims, see 28 U. S. C. §2519 (1976 ed.) (“A final judgment of the Court of Claims against any plaintiff shall forever bar any further claim, suit, or demand against the United States arising out of the matters involved in the case or controversy”); United States v. O’Grady, 22 Wall. 641, 647 (1875); W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, Part II, pp. 22-25 (1978).

       See G. Bogert, Law of Trusts and Trustees § 902 (2d rev. ed. 1982) (footnotes omitted) (“[I]t is now universally the law that the purchaser of trust property from the trustee . . . may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser, in the absence of notice to the contrary, may safely assume that the price will be applied in an appropriate manner as trust property”); 4 A. Scott, Law of Trusts § 321 (3d ed. 1967); Stone, Some Legal Problems Involved in the Transmission of Funds, 21 Colum. L. Rev. 507 (1921). See also, the Uniform Fiduciaries Act § 2, 7A U. L. A. 135 (1978) (“A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary”).

       The Court’s acknowledgment of this general rule is apparent from its citation to 4 G. Bogert, Law of Trusts and Trustees § 901 (1935), which stated: “It is now the law that the purchaser of trust property from the trustee, where the trustee has a power to sell and has properly executed his power, may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser may safely assume that the price will be applied in an appropriate manner as trust property, unless special circumstances come to his notice indicating the opposite.”

       In suggesting that significant obstacles to the distribution of the money remain despite the transfer of the fund into a trust account, the Court of Appeals failed to recognize the legal strictures ensuring that the money will be applied to the benefit of the Tribe. We have, for example, held that the United States, as a fiduciary, is obligated to make the funds productive and is fully accountable if those funds are converted or mismanaged. See, e. g., United States v. Mitchell, 463 U. S. 206, 226 (1983); United States v. Sioux Nation of Indians, 448 U. S. 371, 408-409 (1980); United States v. Shoshone Tribe, 304 U. S. 111, 115-116 (1938); Shoshone Tribe v. United States, 299 U. S. 476, 497 (1937).

        Cramer v. United States, 261 U. S. 219, 227 (1923); United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 357-358 (1941); see generally Cohen, Original Indian Title, 32 Minn. L. Rev., at 53-54.


source: Caselaw Access Project

author: Justice Blackmun Justice White, Justice Rehnquist,

license: Public Domain

text:
    SHEA v. LOUISIANA
    No. 82-5920.
    Argued November 7, 1984
    Decided February 20, 1985
    Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist and O’Connor, JJ., joined, post, p. 61. Rehnquist, J., filed a dissenting opinion, post, p. 66.

      Frances Baker Jack, by appointment of the Court, '467 U. S. 1238, argued the cause and filed a brief for petitioner.

      Paul J. Carmouche argued the cause for respondent. With him on the briefs was John A. Broadwell.

   Justice Blackmun

delivered the opinion of the Court.

In Edwards v. Arizona, 451 U. S. 477 (1981), this Court ruled that a criminal defendant’s rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation — without counsel present — after he requested an attorney. This case presents the issue whether that ruling is applicable to a case pending on direct appeal in a state court at the time Edwards was decided.

I

There is no dispute as to the facts. Petitioner Kevin Michael Shea was charged in Louisiana with two counts of armed robbery.. He was arrested on July 2, 1979, and was taken to the police station at Shreveport. There he was turned over to Detectives Smith and Snell for questioning. His so-called Miranda rights, see Miranda v. Arizona, 384 U. S. 436 (1966), were read to him, and he signed a standard Miranda card. He said, however, that he did not wish to make any statement until he saw a lawyer. The interview thereupon was terminated.

The following afternoon, July 3, before petitioner had been in communication with any lawyer, Detective Snell returned. He informed petitioner that he was to be transferred from the city jail to the parish jail. Without inquiring of petitioner whether he had spoken with an attorney or whether he was indigent, and without any indication from petitioner that he now was willing to be interrogated, Snell asked if he wanted to talk about the case. Again, Miranda rights were read to petitioner and again he signed a Miranda card. He then orally confessed that he had committed the two robberies.

The charges against petitioner came on for trial in due course in the State District Court for Caddo Parish. At this point, the two counts were severed. Prior to his trial before a jury on the first count, petitioner formally moved to suppress the confession of July 3. App. 2. At the trial, which took place in 1980, the prosecution offered the confession in evidence. The defense objected, but the objection was overruled and the confession was admitted. Petitioner was convicted. He filed a like suppression motion with respect to the second charge. Id., at 6. When this was denied, he withdrew his original plea and entered a plea of guilty, with a reservation under state law, see State v. Crosby, 338 So. 2d 584, 588 (La. 1976), of his right to appeal the denial of the motion to suppress. App. 7-8.

Ón his appeal to the Supreme Court of Louisiana, petitioner raised the issue of the trial court’s error, in violation of Miranda, in admitting the confession. In its opinion, the Louisiana tribunal cited this Court’s decision in Edwards, which had come down in the meantime but subsequent to petitioner’s trial and convictions. The Louisiana court acknowledged the presence of an Edwards violation. It stated:

“In the present case it is undisputed that the police did initiate such an inquiry on July 3, after having been clearly informed by the defendant on the previous evening that he would not make any statements without counsel. Consequently, there was a violation of the additional standard governing police interrogation of a suspect imposed by Edwards v. Arizona . . . .” 421 So. 2d 200, 203 (1982).

The court, however, went on to hold that Edwards was not to be applied in petitioner’s case:

“As this [error] occurred before the decision in Edwards was rendered and we are convinced the United States Supreme Court will pronounce that decision is not retroactive, we so hold in this case.” 421 So. 2d, at 204.

Petitioner successfully obtained a rehearing on the ret-roactivity issue. On rehearing, although the Louisiana Supreme Court again acknowledged, id., at 210, that petitioner’s confession, under Edwards, was not admissible, that court adhered, over two dissents, to its position that Edwards was not to be given retroactive effect. It stated that that decision was a “clear break with the past,” was a new ruling, and was not retroactive. 421 So. 2d, at 210.

Because of the importance of the issue and because of conflicting decisions elsewhere, we granted certiorari. 466 U. S. 957 (1984).

II

Edwards, the case at the center of the present controversy, involved facts startlingly similar to those of the present case. Police officers informed Edwards of his Miranda rights and questioned him until he said he wanted an attorney. At that point questioning ceased. The next day, however, other officers visited Edwards, stated they wanted to talk to him, informed him of his Miranda rights, and obtained an oral confession. This Court was positive and clear in its ruling:

“[Although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, . . . the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police” (footnote omitted). 451 U. S., at 484-485.

See also Rhode Island v. Innis, 446 U. S. 291, 298 (1980); Fare v. Michael C., 442 U. S. 707, 719 (1979); Michigan v. Mosley, 423 U. S. 96, 104, n. 10 (1975), and id., at 109-111 (opinion concurring in result); Miranda v. Arizona, 384 U. S., at 444-445, 474.

The legal principle, thus, is established and is uncontested here. The only question before us in this case is whether that ruling applies retroactively with respect to petitioner’s convictions when the issue was raised and his case was pending and undecided on direct appeal in the state system at the time Edwards was decided.

HH h-H I — I

Two of this Court’s recent cases bear importantly upon the issue. The first is United States v. Johnson, 457 U. S. 537 (1982). In that case, we held that a decision of this Court concerning Fourth Amendment rights was to be applied retroactively to all convictions that were not yet final at the time the decision was rendered, except in those situations that would be clearly controlled by existing retroactivity precedents to the contrary. . Specifically, the Court held that Payton v. New York, 445 U. S. 573 (1980), was to be applied retroactively to Johnson’s case.

The Court in Johnson found persuasive Justice Harlan’s earlier reasoning that application of a new rule of law to cases pending on direct review is necessary in order for the Court to avoid being in the position of a super-legislature, selecting one of several cases before it to use to announce the new rule and then letting all other similarly situated persons be passed by unaffected and unprotected by the new rule. See Desist v. United States, 394 U. S. 244, 256 (1969) (dissenting opinion); Mackey v. United States, 401 U. S. 667, 675 (1971) (separate opinion). The Court noted that, at a minimum, “‘all “new” rules of constitutional law must ... be applied to all those cases which are still subject to direct review by this Court at the time the “new” decision is handed down.’” United States v. Johnson, 457 U. S., at 548, quoting from the dissent in Desist v. United States, 394 U. S., at 258. In Johnson the Court, “[t]o the extent necessáry to decide today’s case, . . . embrace[d] Justice Harlan’s views in Desist and Mackey.” 457 U. S., at 562. It thus determined that unless the rule is so clearly a break with the past that prior precedents mandate nonretroactivity, a new Fourth Amendment rule is to be applied to cases pending on direct review when the rule was adopted.

In considering the retroactivity of Payton, the Court then concluded that the question was to be resolved fairly by applying the Payton ruling to all cases pending on direct review when Payton was decided. So to do (a) would provide a principle of decisionmaking consonant with the Court’s original understanding in Linkletter v. Walker, 381 U. S. 618 (1965), and Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966), (b) would comport with this Court’s judicial responsibility to do justice to each litigant on the merits of his own case, and (c) would further the goal of treating similarly situated defendants similarly.

The second case is Solem v. Stumes, 465 U. S. 638 (1984). It, too, clearly involved an obvious Edwards violation that took place in 1973, more than seven years before Edwards. After Stumes’ state-court conviction had been finally affirmed by the Supreme Court of South Dakota, he sought federal habeas relief. His petition for a writ, however, was denied by the Federal District Court. While Stumes’ appeal was pending in the Court of Appeals, Edwards was decided here. The Court of Appeals then ruled that, under Edwards, the police had acted unconstitutionally. This Court, by a divided vote, reversed, holding that Edwards was not to be applied retroactively in the Stumes situation. Justice Powell concurred in the judgment, 465 U. S., at 651, for he would not impose upon the State the costs that accrue by retroactive application of a new rule of constitutional law on habeas corpus; those costs, in his view, “generally far outweigh the benefits of this application.” Id., at 654.

The primary difference between Johnson, on the one hand, and Stumes, on the other, is the difference between a pending and undecided direct review of a judgment of conviction and a federal collateral attack upon a state conviction which has become final. We must acknowledge, of course, that Johnson does not directly control the disposition of the present case. In Johnson, the Court specifically declined to address the implications of its holding for a case in a constitutional area other than the Fourth Amendment, or for a case in which a Fourth Amendment issue is raised on collateral attack. 457 U. S., at 562. We now conclude, however, that there is no reason to reach in this case a result that is different from the one reached in Johnson. See Mack v. Oklahoma, 459 U. S. 900 (1982). There is nothing about a Fourth Amendment rule that suggests that in this context it should be given greater retroactive effect than a Fifth Amendment rule. Indeed, a Fifth Amendment violation may be more likely to affect the truth-finding process than a Fourth Amendment violation. And Justice Harlan’s reasoning — that principled decisionmaking and fairness to similarly situated petitioners require application of a new rule to all cases pending on direct review — is applicable with equal force to the situation presently before us. We hold that our analysis in Johnson is relevant for petitioner’s direct-review Fifth Amendment claim under Edwards. He is entitled to the benefit of the ruling in that case.

> I — I

Other arguments that have been made m support of the judgment below are not persuasive. First, it is said that drawing a distinction between a case pending on direct review and a case on collateral attack produces inequities and injustices that are not any different from those that Johnson purported to cure. The argument is that the litigant whose Edwards claim will not be considered because it is presented on collateral review will be just as unfairly treated as the direct-review litigant whose claim would be bypassed were Edwards not the law. The distinction, however, properly rests on considerations of finality in the judicial process. The one litigant already has taken his case through the primary system. The other has not. For the latter, the curtain of finality has not been drawn. Somewhere, the closing must come. Justice Powell stressed this in his opinion concurring in the judgment in Solem v. Stumes, 465 U. S., at 653-654. He said specifically: “[I]t is particularly difficult in such cases to justify imposing upon the State the costs of collateral review. These are not insubstantial.” Id., at 654.

Next, it is said that the application of Edwards to cases pending on direct review will result in the nullification of many convictions and will relegate prosecutors to the difficult position of having to retry cases concerning events that took place years ago. We think this concern is overstated. We are given no empirical evidence in its support, and Louisiana states that any such evidence is unavailable. Brief for Respondent 11. We note, furthermore, that several courts have applied Edwards to cases pending on direct review without expressing concern about lapse of time or retro-activity and without creating any apparent administrative difficulty. See n. 2, supra. And if a case is unduly slow in winding its way through a State’s judicial system, that could be as much the State’s fault as the defendant’s, and should not serve to penalize the defendant.

In addition, it is said that in every case, Edwards alone excepted, reliance on existing law justifies the nonapplication of Edwards. But, as we have pointed out, there is no difference between the petitioner in Edwards and the petitioner in the present case. If the Edwards principle is not to be applied retroactively, the only way to dispense equal justice to Edwards and to Shea would be a rule that confined the Edwards principle to prospective application unavailable even to Edwards himself.

Finally, it is said that the Edwards rule is only prophylactic in- character, and is not one designed to enhance accuracy in criminal jurisprudence. This argument, of course, is taken from Michigan v. Payne, 412 U. S. 47 (1973), where the retroactivity of North Carolina v. Pearce, 395 U. S. 711 (1969), was under consideration. The argument, we feel, is fully answered by the decision in United States v. Johnson, and by what we have said above in this opinion.

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

It is so ordered.

Justice White,

with whom The Chief Justice, Justice Rehnquist, and Justice O’Connor join,

dissenting.

Last Term, in Solem v. Stumes, 465 U. S. 638 (1984), we held that the rule announced by the Court in Edwards v. Arizona, 451 U. S. 477 (1981), should not be applied retroactively in collateral attacks on criminal convictions. We concluded that the prophylactic purpose of the Edwards rule, the justifiable failure of police and prosecutors to foresee the Court’s decision in Edwards, and the substantial disruption of the criminal justice system that retroactive application of Edwards would entail all indicated the wisdom of holding Edwards nonretroactive. Today, however, the majority concludes that notwithstanding the substantial reasons for restricting the application of Edwards to cases involving interrogations that postdate the Court’s opinion in Edwards, the Edwards rule must be applied retroactively to all cases in which the process of direct appeal had not yet been completed when Edwards was decided. In so holding, the majority apparently adopts a rule long advocated by a shifting minority of Justices and endorsed in limited circumstances by the majority in United States v. Johnson, 457 U. S. 537 (1982): namely, the rule that any new constitutional decision — except, perhaps, one that constitutes a “clear break with the past” — must be applied to all cases pending on direct appeal at the time it is handed down.

Two concerns purportedly underlie the majority’s decision. The first is that retroactivity is somehow an essential attribute of judicial decisionmaking, and that when the Court announces a new rule and declines to give it retroactive effect, it has abandoned the judicial role and assumed the function of a legislature — or, to use the term Justice Harlan employed in describing the problem, a “super-legislature.” Desist v. United States, 394 U. S. 244, 259 (1969) (Harlan, J., dissenting). The second (and not completely unrelated) concern is fairness. It is the business of a court, the majority reasons, to treat like cases alike; accordingly, it is unfair for one litigant to receive the benefit of a new decision when another, identically situated, is denied the same benefit. The majority’s concerns are no doubt laudable, but I cannot escape the conclusion that the rule they have spawned makes no sense.

As a means of avoiding what has come to be known as the super-legislature problem, the rule announced by the majority is wholly inadequate. True, the Court is not and cannot be a legislature, super or otherwise. But I should think that concerns about the supposed usurpation of legislative authority by this Court generally go more to the substance of the Court’s decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in “judicial legitimacy.”

The futility of this latest attempt to use retroactivity doctrine to avoid the super-legislature difficulty is highlighted by the majority’s unwillingness to commit itself to the logic of its position. For even as it maintains that retroactivity is essential to the judicial function, today’s majority, like the majority in Johnson, supra, continues to hold out the possibility that a “really” new rule — one that marks a clear break with the past — may not have to be applied retroactively even to cases pending on direct review at the time the new decision is handed down. See ante, at 57 and 59, n. 5; Johnson, supra, at 549-550, 551-554. Of course, if the majority were truly concerned with the super-legislature problem, it would be “clear break” decisions that would trouble it the most. Indeed, one might expect that a Court as disturbed about the problem as the majority purports to be would swear off such decisions altogether, not reserve the power both to issue them and to decline to apply them retroactively. In leaving open the possibility of an exception for “clear break” decisions, the majority demonstrates the emptiness of its proposed solution to the super-legislature problem.

The claim that the majority’s rule serves the interest of fairness is equally hollow. Although the majority finds it intolerable to apply a new rule to one case on direct appeal but not to another, it is perfectly willing to tolerate disparate treatment of defendants seeking direct review of their convictions and prisoners attacking their convictions in collateral proceedings. As I have stated before, see Johnson, supra, at 566-568 (White, J., dissenting); Williams v. United States, 401 U. S. 646, 656-659 (1971) (plurality opinion), it seems to me that the attempt to distinguish between direct and collateral challenges for purposes of retroactivity is misguided. Under the majority’s rule, otherwise identically situated defendants may be subject to different constitutional rules, depending on just how long ago now-unconstitutional conduct occurred and how quickly cases proceed through the criminal justice system. The disparity is no different in kind from that which occurs when the benefit of a new constitutional rule is retroactively afforded to the defendant in whose case it is announced but to no others; the Court’s new approach equalizes nothing except the numbers of defendants within the disparately treated classes.

The majority recognizes that the distinction between direct review and habeas is problematic, but justifies its differential treatment by appealing to the need to draw “the curtain of finality,” ante, at 60, on those who were unfortunate enough to have exhausted their last direct appeal at the time Edwards was decided. Yet the majority offers no reasons for its conclusion that finality should be the decisive factor. When a conviction is overturned on direct appeal on the basis of an Edwards violation, the remedy offered the defendant is a new trial at which any inculpatory statements obtained in violation of Edwards will be excluded. It is not clear to me why the majority finds such a burdensome remedy more acceptable when it is imposed on the State on direct review than when it is the result of a collateral attack. The disruption attendant upon the remedy does not vary depending on whether it is imposed on direct review or habeas; accordingly, if the remedy must be granted to defendants on direct appeal, there is no strong reason to deny it to prisoners attacking their convictions collaterally. Conversely, if it serves no worthwhile purpose to grant the remedy to a defendant whose conviction was final before Edwards, it is hard to see why the remedy should be available on direct review.

The underlying flaw of the majority’s opinion is its failure to articulate the premises on which the retroactivity doctrine it announces actually rests. In recognizing that a decision marking a clear break from the past may not be retroactive and in holding that the concern of finality trumps considerations of fairness that might otherwise dictate retroactivity in collateral proceedings, the majority implicitly recognizes that there is in fact more at issue in decisions involving retro-activity than treating like cases alike. In short, the majority recognizes that there are reasons why certain decisions ought not be retroactive. But the rules the majority announces fail to reflect any thoughtful inquiry into what those reasons might be. By contrast, the principles of retroactivity set forth in Linkletter v. Walker, 381 U. S. 618 (1965), and most recently applied in Solem v. Stumes, 465 U. S. 638 (1984), provide a rational framework for thinking about the question whether retroactive application of any particular decision makes sense — that is, whether the benefits of retroactivity outweigh its costs. Because the Court has already determined that the relevant considerations set forth in Linkletter (the purpose of the new rule, the extent of law enforcement officials’ justifiable reliance on the prior rule, and the effects on the criminal justice system of retroactivity) dictate non-retroactive application of the rule in Edwards, I cannot join in the majority’s conclusion that that rule should be applied retroactively to cases pending on direct review at the time of our decision in Edwards. More importantly, I cannot concur in the approach to retroactivity adopted by today’s majority — an approach that, if our precedents regarding the non-retroactivity of decisions marking a clear break with the past remain undisturbed, merely adds a confusing and unjustifiable addendum to our retroactivity jurisprudence.

I respectfully dissent.

Justice Rehnquist,

dissenting.

I would be willing to join the result reached by the Court in this case if the majority were willing to adopt both aspects of the approach to retroactivity propounded by Justice Harlan in his concurrence in Mackey v. United States, 401 U. S. 667, 675 (1971). Under his approach, new constitutional rules prescribed by this Court for the conduct of criminal prosecutions would apply retroactively to all cases on direct appeal at the time the new rule was announced and, with narrow exceptions, would not apply in collateral proceedings challenging convictions that had become final before the new rule was announced. I will not attempt to summarize the justifications for this approach so thoughtfully articulated by Justice Harlan.

Because the Court apparently is not willing to adopt in entirety Justice Harlan’s bright-line distinction between direct appeals and collateral attacks, I join Justice White’s dissent, agreeing with him that there is little logic to the Court’s analysis and its rejection of the sound reasons given in Solem v. Stumes, 465 U. S. 638 (1984), for making Edwards v. Arizona, 451 U. S. 477 (1981), nonretroactive.

       We thus are not confronted in this case with any issue as to whether petitioner had invoked his right to counsel in the first instance, see Smith v. Illinois, 469 U. S. 91 (1984), or as to whether, having done so, it was he who had initiated further conversation and interrogation, see Oregon v. Bradshaw, 462 U. S. 1039 (1983), and the several opinions therein. A violation of the Edwards principle, all parties here agree, took place in the instant case.

       See, e. g., State v. Brown, 317 N. W. 2d 714, 715 (Minn. 1982); State v. Taylor, 56 Ore. App. 703, 708, 643 P. 2d 379, 382 (1982). Other courts, without addressing the retroactivity issue, have applied Edwards to cases pending on direct appeal when the decision was announced. See, e. g., State v. Platt, 130 Ariz. 570, 575-576, 637 P. 2d 1073, 1079 (App. 1981); People v. Cerezo, 635 P. 2d 197, 199-201 (Colo. 1981); State v. Brezee, 66 Haw. 162, 657 P. 2d 1044 (1983); State v. Carty, 231 Kan. 282, 644 P. 2d 407 (1982); People v. Paintman, 412 Mich. 518, 315 N. W. 2d 418, cert. denied, 456 U. S. 995 (1982).

       Had petitioner’s case been pending here on certiorari when Edwards was announced, it surely would have been remanded, as were other such cases, for reconsideration in the light of Edwards. See Blakney v. Montana, 451 U. S. 1013 (1981); White v. Finkbeiner, 451 U. S. 1013 (1981) (on federal habeas); Leuschner v. Maryland, 451 U. S. 1014 (1981); Monroe v. Idaho, 451 U. S. 1014 (1981); Wantland v. Maryland, 451 U. S. 1014 (1981); James v. Illinois, 451 U. S. 1014 (1981). This Court’s actions in 1981 in these cases indicated no conclusion on its part that Edwards was inapplicable to other cases pending on direct review. In all six of these cases, the questioning, of course, predated Edwards. In Monroe and Blakney, on remand, Edwards was applied without discussion of retro-activity. See State v. Monroe, 103 Idaho 129, 645 P. 2d 363 (1982); State v. Blakney, 197 Mont. 131, 641 P. 2d 1045 (1982).
      While not conclusive, it is of interest to note that this Court, on at least two occasions in addition to Solem v. Stumes, 465 U. S. 638 (1984), discussed infra in the text, already has considered Edwards in a retroactive setting, that is, in its application to custodial inquiries that took place before Edwards was decided here. See Wyrick v. Fields, 459 U. S. 42 (1982) (inquiry in 1974); Oregon v. Bradshaw, 462 U. S. 1039 (1983) (inquiry in 1980). Bradshaw, like the instant case, was on direct review. This Court considered and decided the Edwards issue in each of those cases with no comment or expressed concern about retroactivity. Our examination of the appendices and briefs in those two cases reveals that the retro-activity issue was not raised. Its underlying presence, however, was not sufficiently disturbing to cause the Court to mention it sua sponte.

       In Solem v. Sturnes, the Court observed:
      “At a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions. For purposes of this case, that is all we need decide about Edwards." 465 U. S., at 650.
      Of course, under the rationale of our decision today, the question is whether the conviction became final before Edwards was decided. As we hold, if a case was pending on direct review at the time Edwards was decided, the appellate court must give retroactive effect to Edwards, subject, of course, to established principles of waiver, harmless error, and the like. If it does not, then a court conducting collateral review of such a conviction should rectify the error and apply Edwards retroactively. This is consistent with Justice Harlan’s view that cases on collateral review ordinarily should be considered in fight of the law as it stood when the conviction became final. See Mackey v. United States, 401 U.S. 667, 689 (1971) (Harlan, J., concurring in judgment). See also Hankerson v. North Carolina, 432 U.S. 233, 248 (1977) (POWELL, J., concurring in judgment). Thus, the result of our decisions concerning the retroactive applicability of the ruling in Edwards v. Arizona is fully congruent with both aspects of the approach to retroactivity propounded by Justice Harlan in his concurrence in Mackey.

       The Court in Johnson also declined to address situations clearly controlled by existing retroactivity precedents, such as where the new rule of law is so clear a break with the past that it has been considered nonretroactive almost automatically. Whatever the merits of a different retroactivity rule for cases of that kind may be, we have no need to be concerned with the question here. In Solem v. Sismes-the Court recognized that Edwards was “not the sort of ‘clear break’ that is automatically nonretroactive.” 465 U. S., at 647.

       The distinction between direct review and collateral attack may bear some relationship to the recency of the crime; thus, to the extent that the difficulties presented by a new trial may be more severe when the underlying offense is more remote in time, it may be that new trials would tend to be somewhat more burdensome in habeas cases than in cases involving reversals on direct appeal. However, this relationship is by no means direct, for the speed with which cases progress through the criminal justice system may vary widely. Thus, if the Court is truly concerned with treating like cases alike, it could accomplish its purpose far more precisely by applying new constitutional rules only to conduct of appropriately recent vintage. I assume, however, that no one would argue for an explicit “5-year rule,” for example.
      ' The notion that a new trial is a significantly less burdensome remedy when it is imposed on direct review than when it is ordered on habeas is also called into serious question by the facts of this particular case. The remedy the Court grants the petitioner is a new trial that will be held almost six years after the commission of the offense with which he is charged. I have no doubt that there are many prisoners whose convictions were final at the time Edwards was decided who could be given a new trial as conveniently as petitioner.
      Of course, it will be less burdensome in the aggregate to apply Edwards only to cases pending when Edwards was decided than to give it full retroactive effect; by the same token, it would be less burdensome to apply Edwards retroactively to all cases involving defendants whose last names begin with the letter “S” than to make the decision fully retroactive. The majority obviously would not countenance the latter course, but its failure to identify any truly relevant distinction between cases on direct appeal and eases raising collateral challenges makes the rule it announces equally indefensible.

       After today, a decision that is foreshadowed — not new at all — is applicable both on direct review and in collateral proceedings. A decision that makes law that is somewhat new is to apply to all cases on direct review but will generally not be a basis for collateral relief. Really new decisions breaking with the past, however, will likely apply neither in collateral proceedings nor to cases on direct review other than that in which the decision is announced. The majority thus recognizes for purposes of retroactivity doctrine three categories of decisions: not new, newish, and brand new. I had hoped that after plenary review, we could do better than that.

      While the results reached by the Court in this ease and in Solem happen to be the same as they would have been under Justice Harlan’s approach, the Court’s analysis in Solem is not the same as his approach. Only Justice Powell, concurring in the judgment in Solem, followed the Mackey concurrence. The rationale of Justice Harlan’s approach requires that the Court apply it in all cases, not just in those cases in which a majority favors the result it yields; and for now it does not appear that the Court is prepared to take this course.