Ex Parte Crow Dog

The Crow Dog decision represented to many an extreme application of the doctrine of tribal sovereignty and self-government. Stunned by the Court's finding, 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 Court decision in 1886 in United States v. Kagama (1886). The Court upheld Congress' power to interject the United States in internal tribal disputes and the validity of the Major Crimes Act. The decision reaffirmed the "plenary power" 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 in Williams 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 decisions in Oliphant v. Suquamish Indian Tribe (1978) and Duro v. Reina (1990). In the landmark Oliphant case, the Court held that tribes did not hold criminal jurisdiction over non-Indians accused of crimes on Indian lands. 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 applied to individuals freely consenting to be members of that tribe. The Duro decision thus established the doctrine of "consent-based" sovereignty. This shift 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 quick congressional response, Crow Dog marked a major transition in the application of federal criminal jurisdiction within Native American society. The Court 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 lower courts 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 the diversity 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 under the earlier system, and some tribes, like the Navajo, refused to organize under the IRA retaining their traditional court system. Among these almost 200 courts, some established wide-ranging jurisdiction codes while others were very restricted and perhaps staffed by individuals with no legal training. Some tribes had no court system at all. The Court consequently followed a narrow path between recognizing a defined field of exclusive tribal court jurisdiction and operating within the reality of the variation and limitation of tribal courts.

Tribal courts also chronically suffered from a shortage of funding. Congress attempted 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.