Ex Parte Crow Dog

The ruling established that U.S. courts did not have criminal jurisdiction in cases 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, because of the wide diversity in the tribal court systems, neither Congress nor the U.S. courts created a consistent set of rules guiding allocation of specific cases 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 a series 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, and administer justice, among other things. But the Intercourse Act also limited the 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 by including crimes Indians committed against non-Indians on Indian lands.

In a series of three landmark rulings between 1823 and 1832 the Supreme Court established 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 to occupy 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 tribal affairs through the Intercourse acts by defining the nature of tribal limited sovereignty.

Based on the 1817 Intercourse Act amendment, Congress passed the 1854 General Crimes Act, also known as Indian Country Crimes Act, giving federal courts criminal jurisdiction over various offenses committed on Indian lands. Though seemingly 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 Intercourse Act 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 a close 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.