Ex Parte Crow Dog

Petitioner
Crow Dog of the Sioux Indian Nation
Respondent
United States
Petitioner's Claim
That the U.S. court system does not have jurisdiction over crimes committed within the boundaries of an Indian reservation by one tribal member against another.
Chief Lawyer for Petitioner
A. J. Plowman
Chief Lawyer for Respondent
Samuel F. Phillips, U.S. Solicitor General
Justices for the Court
Samuel Blatchford, Joseph P. Bradley, Stephen Johnson Field, Horace Gray, John Marshall Harlan I, Stanley Matthews (writing for the Court), Samuel FreemanMiller, Morrison Remick Waite, William Burnham Woods
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
17 December 1883
Decision
Upheld Crow Dog's claim and overturned the lower court's decision sentencinghim to death for a murder.
Significance
The ruling established that U.S. courts did not have criminal jurisdiction incases where one Native American murders another on reservation lands. The Court ruled that tribes held exclusive jurisdiction over their own internal affairs, including murder cases. The decision, however, prompted a swift congressional reaction. Since 1885 Congress has exercised absolute (plenary) power over tribal jurisdiction by excluding certain crimes from that jurisdiction. Through the 1990s many tribes expanded their justice systems. However, becauseof the wide diversity in the tribal court systems, neither Congress nor theU.S. courts created a consistent set of rules guiding allocation of specificcases to state, federal, or tribal courts.
Because Indian issues were so prominent in early U.S. history, the first U.S.Congress passed the Indian Trade and Intercourse Act in 1790, followed by aseries of amendments until settling on a final version in 1834. The act, while regulating trade with Indians and tribal legal jurisdiction, served to recognize tribal sovereignty. "Sovereignty" means the power of a government to establish its own structure, define who its citizens may be, assess taxes, andadminister justice, among other things. But the Intercourse Act also limitedthe scope of tribal sovereignty by maintaining that Congress had the last word in limiting and affirming tribal rights and powers. Congress' absolute authority is called "plenary power." Initially, the Intercourse Act primarily addressed crimes by non-Indians against Indians on Indian-owned lands. The act explicitly excluded crimes by Indians against Indians from U.S. jurisdiction.However, an 1817 amendment to the act broadened U.S. criminal jurisdiction byincluding crimes Indians committed against non-Indians on Indian lands.
In a series of three landmark rulings between 1823 and 1832 the Supreme Courtestablished the concept of semi-independent tribal governments existing within the United States. InWorcester v. Georgia (1832), Chief Justice John Marshall wrote that tribes were "domestic dependent nations" whose right tooccupy their lands and exercise their inherent powers was essentially free of state controls and subject only to the ultimate authority of the federal government. The Court legitimized congressional exercise of control over tribalaffairs through the Intercourse acts by defining the nature of tribal limited sovereignty.
Based on the 1817 Intercourse Act amendment, Congress passed the 1854 GeneralCrimes Act, also known as Indian Country Crimes Act, giving federal courts criminal jurisdiction over various offenses committed on Indian lands. Thoughseemingly broad in scope, federal jurisdiction was actually fairly limited. Two key exclusions from the Crimes Act were crimes between Indians and situations where offenders were punished under tribal law. The law was primarily aimed at crimes between Indians and non-Indians. Consistent with the IntercourseAct and prior court findings, the 1854 act reflected a broad respect for tribal sovereignty.
Since signing a treaty with the Delaware Indians in 1778, the United States negotiated approximately 400 treaties with tribes across the nation based on the notion of tribal sovereignty. In 1868 the United States signed a treaty with the Sioux of the Dakotas. Among other issues, the treaty recognized U.S. responsibility for ensuring the Sioux had "an orderly government" and noted that "they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life." Soon Congress' Indian policy begin to shift, however. Treaty-making abruptly came to aclose in 1871 when Congress, in taking away the president's powers to negotiate treaties with Indians, began to exert greater influence over internal Indian affairs on reservations.
An Orderly Government
Crow Dog, whose Indian name was Kan-gi-Shun-ca, and Spotted Tail, also knownas Sin-ta-ge-le-Scka, were members of the Brule Sioux Band of the Sioux Nation. Crow Dog, at odds with Spotted Tail over several personal and public matters, shot and killed him in August of 1881. Through application of traditionalSioux law, the families settled the matter by Crow Dog's family paying restitution to the victim's relatives in the form of $600 cash, eight horses, anda blanket. Believing the Sioux punishment too light for murder, federal agents arrested Crow Dog and charged him with murder. The Dakota territorial courtfound him guilty of the charge and sentenced Crow Dog to be executed. Crow Dog appealed, claiming federal courts had no jurisdiction over crimes committed by one Indian against another. The U.S. Supreme Court then granted certiorari requesting the lower court to forward case proceedings for Court review.
U.S. Solicitor General Samuel E. Phillips argued before the Court that U.S. courts had jurisdiction in the Crow Dog case based upon specific language in the Sioux treaty. Justice Matthews, writing on behalf of the Court in an era before justice vote counts and dissenting opinions were given, disagreed withthis argument. The Court held that the most important aspect of "an orderly government," as referenced in the treaty, is its ability to self-govern. Thisautonomy included "the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs." Given the sovereignty status of tribesas recognized in Worcester, tribal members were subject to U.S. laws not as individuals but as members of "a dependent community" that hopefully would "become a self-supporting and self-governed society." Matthews concludedthat assumptions about what rights a tribe may have simply from the reading of a treaty were not enough to decrease tribal sovereignty and impose the lawsof one nation "over the members of a community separated by race . . . [and]by tradition." For the United States to have jurisdiction over a particularkind of crime, Congress must clearly state so. The resolution worked out between Crow Dog's and Spotted Tail's families was ruled sufficient justice.
Impact
The Crow Dog decision represented to many an extreme application of the doctrine of tribal sovereignty and self-government. Stunned by the Court'sfinding, two years later Congress passed the Major Crimes Act of 1885. The law essentially overturned the Crow Dog decision by identifying seven crimes on Indian lands over which federal courts would assume jurisdiction, including murder. The act was immediately challenged, leading to a Supreme Courtdecision in 1886 in United States v. Kagama (1886). The Court upheldCongress' power to interject the United States in internal tribal disputes and the validity of the Major Crimes Act. The decision reaffirmed the "plenarypower" of Congress over tribal jurisdiction, meaning Congress could alter tribal rights at will. The list of crimes addressed by the act expanded during the century to include 16 by 1993.
In seeming contradiction to the anti-sovereignty decision in Kagama, ten years later in 1896 the Court followed the Worcester and Crow Dog line of reasoning in the Talton v. Mayes (1896) case by recognizing that tribal powers pre-existed the Constitution. The Court ruled tribes need not conduct grand jury hearings as normally required by the Fifth Amendment. The Crow Dog and Talton decisions essentially recognized that tribes were largely independent nations free from constitutional constraints and general federal laws. To limit specific tribal powers, Congress must explicitly act through its plenary powers. The first modern opinion by the Court regarding the principle of exclusive tribal court jurisdiction occurred inWilliams v. Lee (1959). The Court, basing its ruling on Worcester, stressed the importance of tribal courts in maintaining tribal sovereignty and proclaimed that state jurisdiction did not extend into Indian country.
However, constraints over tribal criminal jurisdiction emerged with decisionsin Oliphant v. Suquamish Indian Tribe (1978) and Duro v. Reina(1990). In the landmark Oliphant case, the Court held that tribes didnot hold criminal jurisdiction over non-Indians accused of crimes on Indianlands. In Duro, the Court held that tribes did not have jurisdiction over Indians who were not members of the particular tribe in whose lands a crime occurred. The nonmember Indians were treated the same as non-Indians. Importantly, the Court stated that the powers of tribal sovereignty only appliedto individuals freely consenting to be members of that tribe. The Durodecision thus established the doctrine of "consent-based" sovereignty. Thisshift in perspective sharply contrasted with the prior traditional "territory-based" perspective by which tribes held sovereign rights over lands they controlled.
The Crow Dog decision clearly demonstrated the spirit of respect and sympathy the courts frequently paid to the doctrine of tribal sovereignty as they would to the laws of any sovereign nation. However, by triggering a quickcongressional response, Crow Dog marked a major transition in the application of federal criminal jurisdiction within Native American society. TheCourt decision reflected prevailing legal concepts in the United States to that time, that general federal laws did not apply to reservations unless Congress had explicitly stated that a particular law did actually apply. Since 1885, the assumption significantly changed to the perspective that general federal laws did apply unless a particular Native American right or U.S. policy was clearly violated. The Supreme Court consistently opposed efforts of lowercourts and government officials to infringe on tribal sovereignty without explicit legal justification.
The tribal courts were not an important concern of the federal government until the 1880s when a system began to emerge on reservation lands. A century later, jurisdiction of tribal courts was a key issue as tribes gained increasing economic and political power. However, a major factor in the 1990s prohibiting establishment of uniform rules guiding tribal court jurisdiction was thediversity of tribal courts. In the 1934 Indian Reorganization Act (IRA), Congress formalized recognition of the tribal court system. By 1997, a total of 150 tribal courts were organized under the IRA. Over 20 courts persisted underthe earlier system, and some tribes, like the Navajo, refused to organize under the IRA retaining their traditional court system. Among these almost 200courts, some established wide-ranging jurisdiction codes while others were very restricted and perhaps staffed by individuals with no legal training. Sometribes had no court system at all. The Court consequently followed a narrowpath between recognizing a defined field of exclusive tribal court jurisdiction and operating within the reality of the variation and limitation of tribalcourts.
Tribal courts also chronically suffered from a shortage of funding. Congressattempted to remedy that problem with passage of the 1994 Tribal Justice Act.The act declared a commitment to enhance funding support for the tribal justice system, though little actually appeared during the next several years. Still, tribal courts were increasingly shaping their own destinies throughout the 1990s, including establishment of intertribal appeals courts. However, lacking further clarity from the Supreme Court, tribal courts continued to operate within the shadows of the more developed federal court system.
Related Cases

• Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832).
  
• United States v. Kagama, 118 U.S. 375 (1886).
  
• Talton v. Mayes, 163 U.S. 376 (1896).
  
• Williams v. Lee, 358 U.S. 217 (1959).
  
• Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
  
• Duro v. Reina, 495 U.S. 676 (1990).

The Indian Civil Rights Act
The Indian Civil Rights Act of 1968 was enacted at a time when Native American groups were involved in bringing about a resurgence in Native American cultures and demanding that their civil rights be recognized. North Carolina Senator Sam Ervin, Jr., received authorization from the Senate Judiciary Committee in 1961 to conduct hearings on the state of constitutional rights among Native Americans. Ervin introduced in 1965 nine bills designed to "provide our Indian citizens with the rights and protections conferred upon all other American citizens." The Senate debated these sporadically for the next three yearsuntil it passed them into law as the Indian Civil Rights Act. Among the act's measures were constitutional exemptions for tribal leadership to allow a greater measure of Indian self-government.
Meanwhile, Senator Robert Kennedy in 1967 conducted an investigation regarding the state of education among Native Americans and made proposals recommending that Indians run their own schools. Kennedy's panel, chaired by Edward Kennedy after his brother's assassination in 1968, issued its final report in 1969 and called for a number of self-governance measures consistent with thosein the Indian Civil Rights Act.
Sources
Bacon, Donald C., et al., eds. The Encyclopedia of the United States Congress. New York: Simon & Schuster, 1995.