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Crow Dog, Ex Parte


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109 U.S. 557 (1883), argued 20 Nov. 1883, decided 17 Dec. 1883 by 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.

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 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.

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.

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Subjects: Law.


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