Ex Parte Crow Dog

109 U.S. 557 (1883), argued 20 Nov. 1883, decided 17 Dec. 1883 by a vote of 9 to 0; Matthews for the court. Crow Dog, a Brule Sioux, was tried, convicted, and sentenced to death for the murder of another Sioux, who was known as Spotted Tail, in a Dakota territorial court. He sought release on a writ of habeas corpus, arguing that tribal and not federal law should apply because territorial courts lacked jurisdiction over crimes committed by one Indian against another in Indian country (see Territories and New States).

Sioux tribal law required that Crow Dog, as punishment for murder, must support Spotted Tail's dependent relatives but did not subject him to execution. Crow Dog contended that he was not subject to the criminal laws of either the Dakota Territory or the United States. The United States maintained that federal criminal jurisdiction over Indian country was acquired under the Sioux Treaty of 1868 interpreted in connection with general federal Indian statutes.

The Supreme Court held that the Dakota territorial court was without jurisdiction. Crow Dog was governed in his relationship with other reservation Indians solely by the tribal laws of the Brule Sioux and was responsible only to the tribal law enforcement authorities. The Court regarded exclusive tribal jurisdiction over tribal members as a surviving attribute of tribal sovereignty despite treaty language that appeared to subject the Sioux to the laws of the United States.

The Crow Dog decision did not deny the power of Congress to legislate over Indian affairs or to curtail the scope of Indian self‐government. But the Court declared that Congress had not done so in any clear fashion and thus found no congressional intent to limit Indian self‐government. The Court stated that the tribes retained their right of “self‐government [and] the maintenance of order and peace among their own members” (p. 568). Unless this power is limited by explicit legislation or surrendered by the tribe, Indian tribes retain exclusive judicial jurisdictions over reservation Indian affairs. Thus today most tribes operate their own tribal court systems. Except to the extent mandated by the Indian Civil Rights Act (1968), the structure and procedure of such courts is determined by the tribes themselves (see Indian Bill of Rights).

The decision in Crow Dog prompted action by nineteenth‐century reformers who wanted Indians to be absorbed into the mainstream of American life. One goal of the assimilationists was to have the same laws applied to Indians as applied to all other citizens and to outlaw the Indians' own “heathenish” laws and customs. The fact that Crow Dog could not be executed for murder shocked them and their congressional supporters. Congress appended to the Appropriation Act of 3 March 1885 an Indian section known as “The Major Crimes Act” specifying seven crimes over which the federal courts were authorized to exercise jurisdiction. Thus, within two years, in reaction against Crow Dog, Congress enacted new legislation making it a federal crime for one Indian to murder another within Indian country. Today, there are fourteen enumerated offenses under the amended Indian Major Crimes Act.

Despite legislation aimed at reversing its specific outcome, Crow Dog remains a major precedent in Native American affairs. Crow Dog affirms that treaties and statutes are interpreted in favor of retained tribal self‐government and property rights (see Treaties and Treaty Power). Doubts and ambiguities in treaties and statutes are to be resolved in Indians' favor and federal Indian laws are interpreted liberally toward carrying out their protective purposes. Crow Dog established that federal protection of tribal self‐government has never depended on any particular tribal social structure or political organization.

Crow Dog articulated the fundamental constitutional principle that federal laws do not preempt tribal authority unless Congress's intent to do so is clear. Congressional intent to include tribes within the scope of laws applying generally to persons, groups, corporations, or associations must be firmly established because of Indian tribes' unique status. The broad concepts of tribal self‐government articulated in Crow Dog continue as a basic constitutional guide in modern Indian law.

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See also Native Americans

— Rennard J. Strickland

Ex Parte Crow Dog, 109 U.S. 556 (1883). Following the establishment of reservations in the nineteenth century, Indian groups faced new and difficult challenges. Living as "wards" of the U.S. government, Indians experienced the unprecedented intrusion of the federal government into their everyday lives. Indian families, social relations, cultural practices, and economic subsistence patterns became targeted by institutions of the state. The legal basis for state intervention into Indian community life remained unclear, however, and when one Brule Lakota, Crow Dog, was accused and convicted of murdering another, Spotted Tail, he appealed his death sentence. ("Murder" meant something different to the Lakota than to the Euro-Americans.) Arguing that the territory governments of South Dakota lacked the jurisdiction to prosecute, try, and convict members of Indian tribes, Crow Dog's case reached the Supreme Court. Since Indian affairs fall solely in the hands of the federal government, as outlined by the U.S. Constitution and nineteenth-century Court rulings, the Supreme Court overturned Crow Dog's conviction and ruled that the territory government did not have the jurisdiction to intervene into criminal matters among Indians. As Crow Dog was released, cries for additional reform measures among Indian communities arose among Indian policy advocates. A series of Indian policy reform acts followed that located Indian crimes outside the jurisdiction of state and local governments and solely in the federal judicial system. Ex Parte Crow Dog reinforced the supremacy of the federal government over Indian affairs.

Bibliography

Price, Monroe E. Law and the American Indian: Readings, Notes, and Cases. New York: Bobbs-Merrill, 1973.

—Ned Blackhawk