Ex parte Crow Dog
Encyclopedia
Ex parte Crow Dog, 109 U.S. 556
(1883), was a case in which the Supreme Court of the United States
held that a federal court did not have jurisdiction to try Crow Dog
, a Native American (Indian)
who killed another Indian on the reservation
when the offense had been tried by the tribal council. In a conflict between two members of the same tribe, one killed the other while on reservation land. The tribe handled it according to Sioux
tradition, and Crow Dog paid restitution. The United States government then tried Crow Dog for murder, and he was sentenced to hang. On his appeal to the Supreme Court, the court held that unless Congress
authorized it, the courts had no jurisdiction to try the case. This case resulted in Congress enacting the Major Crimes Act
in 1885, placing 15 major crimes under federal jurisdiction if committed by an Indian against another Indian on a reservation or tribal land.
Sioux
The Brulé Sioux were a band of the Lakota (formerly called Teton) Sioux. The Sioux name for their band is Sičháŋǧu Oyáte. subchief who lived on the Rosebud Indian Reservation
. The Rosebud reservation is located in south central South Dakota
on that state's border with Nebraska
. The tribe has made several treaties with the United States
, the most recent being the 1868 Treaty of Fort Laramie
. This treaty provided that "If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indians, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States..." The treaty also provided that the tribe would stay in the reservation provided (which included the Black Hills
) unless three-fourths of the adult male tribal members agreed. The United States, once gold was discovered, passed a law in 1877 that took the Black Hills away from the tribe without complying with the treaty. This started the Black Hills War
, which included the Battle of the Rosebud
, the Battle of the Little Bighorn
and the Battle of Slim Buttes
, among others. Crow Dog was among the Sioux that fought in this war, while Spotted Tail
did not.
On August 5, 1881, Crow Dog shot and killed Chief Spotted Tail,Sioux name was Siŋté Glešká., who was the uncle of Oglala
Sioux Chief Crazy Horse
. According to most reports, Spotted Tail had not been selected head chief by the tribe, but had been appointed by General George Crook in 1876, which hurt him in the view of many of the tribe. He was viewed as an "accomodatist" and was known to the Bureau of Indian Affairs
(BIA) as the "great peace chief." He also supervised the tribal police
of about 300 warriors. Crow Dog was a "traditionalist" and had been a captain in the tribal police, but was fired by Spotted Tail sometime after a July 4, 1881, confrontation during which Crow Dog pointed a rifle at Spotted Tail. At a tribal meeting on August 5, 1881, a number of tribal members criticized Spotted Tail for taking the wife of a crippled man into his own household as his own wife. It was also thought that the killing occurred as the result of two upset men meeting, both armed, and mistaking the other man's intentions.
In another version, Crow Dog was appointed by the tribal council to head the tribal police, which undermined the authority of Spotted Tail. Crow Dog discovered that Spotted Tail was taking money from ranchers for "grazing rights" and he denounced him for it, while Spotted Tail defended the practice. It was a later conflict with the Indian Agent
that forced the disbanding of the tribal police and Crow Dog's loss of his position. This version makes no mention of another man's wife being the reason for the killing, and states that Crow Dog ambushed Spotted Tail to gain power in the tribe. The matter was settled within the tribe, following long standing tribal custom, by payment of $600, eight horses, and one blanket.
and the Secretary of the Interior
concluded that the Federal Enclave Act of 1854 as modified by the Assimilative Crimes Act allowed the territorial death penalty to be applied to Crow Dog. In September 1881, Crow Dog was indicted by a federal grand jury
for murder
and manslaughter
under the laws of the Dakota Territory
. In March 1882 the case was heard by Judge G. C. Moody, held at the First Judicial District Court of Dakota, located in Deadwood
, South Dakota. Crow Dog was represented by A. J. Plowman and claimed that he had been punished and made reparations according to the customs of the Brulé Sioux tribe. According to a contemporary news report of the Deadwood Times it was the first time "in the history of the country,[that] an Indian is held for trial for the murder of another Indian." The trial was a sham, and despite the fact that there were Indian witnesses that stated that Spotted Tail drew a pistol on Crow Dog, that Spotted Tail had killed a rival in 1869, and that Spotted Tail had a bad temper, Crow Dog was convicted and sentenced to be hanged on May 11, 1882. The prosecution had presented five Indian witnesses that stated that Spotted Tail was ambushed, and some witnesses stated he was unarmed. In an unusual move for a death penalty case, Moody released Crow Dog, allowing him to go home pending his appeal to the territorial Supreme Court. Surprising many of the white citizens of the area, Crow Dog returned to court as required. In May 1882, the territorial Supreme Court affirmed the conviction, and the execution was rescheduled for May 11, 1883. Crow Dog then petitioned the United States Supreme Court for a Writ of Habeas Corpus
and the Supreme Court accepted the case.
[crimes committed by one Indian against the person or property of another Indian, nor to] any Indian committing any offense in the Indian country who has been punished by the local law of the tribe" (brackets in original). Matthews rejected the contention of the United States that the 1868 Treaty of Fort Laramie implicitly repealed § 2146. He stated that since the law had not been amended or changed, and since implied repeals are not favored unless the implication is necessary, to allow such a repeal would be to reverse the general policy of the United States. Matthews said that such a repeal required a "clear expression of the intention of Congress" which was not present in the case. In a clear statement to the principle of tribal sovereignty, Matthews said that:
As a result, the trial court was without jurisdiction to hear the case, and the Writ of Habeas Corpus was issued discharging Crow Dog from federal custody.
in response. Those wishing to assimilate
Indians into mainstream white society wanted to do away with the "heathen" tribal laws and apply white laws to the tribes. The BIA had been attempting since 1874 to extend federal jurisdiction over major crimes to reservations, without any success. Beginning in 1882, the Indian Rights Association
(IRA) also tried to extend federal jurisdiction, but in a different manner. The IRA believed that the tribes would be better served by a completely separate court system, modeled after U.S. courts and called agency courts. The only appeal would be to the Commissioner of Indian Affairs. The BIA opposed that approach, preferring to try only major crimes in the nearest federal court. Ex parte Crow Dog provided the BIA a perfect example of why this was needed, along with an incident involving Spotted Tail's son, Spotted Tail, Jr., in which the younger Spotted Tail participated in a fight during which three Brulé were killed. The younger Spotted Tail was also confined pending murder charges, and it took a direct order of the Secretary of the Interior
for the local BIA agents to comply with the Supreme Court decision before he was released. Between the BIA's efforts and the IRA efforts, the law was passed in 1885, making seven offenses federal crimes.
, (1831) the Brulé tribe had a right to its own law in "Indian Country." The case outlines the concept that Indian tribes retain their own sovereignty, and this view is still valid; United States v. Lara, (2004) cited Crow Dog when holding that both a tribe and the federal government could prosecute Lara as they were separate sovereigns. Second, the court also created the plenary power
doctrine, when Matthews stated that the federal court did not have jurisdiction since Congress had not passed a law giving the court jurisdiction and taking away the rights of the tribe. Crow Dog was the last in a line of sovereignty cases that began with Cherokee Nation; the next major case, United States v. Kagama
, (1886), upheld the plenary power of Congress to enact the Major Crimes Act. Congress has subsequently used this power to breach the Medicine Lodge Treaty
with the Kiowa
by reducing the size of the Kiowa reservation without their consent.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1883), was a case in which the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that a federal court did not have jurisdiction to try Crow Dog
Crow Dog
Crow Dog was a Brulé Lakota subchief, born at Horse Stealing Creek, Montana Territory, he was the nephew of former principal chief Conquering Bear who was killed in 1854 in an incident which would be known as the Grattan massacre. Crow Dog was one of the leaders who helped popularize the Ghost...
, a Native American (Indian)
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
who killed another Indian on the reservation
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
when the offense had been tried by the tribal council. In a conflict between two members of the same tribe, one killed the other while on reservation land. The tribe handled it according to Sioux
Sioux
The Sioux are Native American and First Nations people in North America. The term can refer to any ethnic group within the Great Sioux Nation or any of the nation's many language dialects...
tradition, and Crow Dog paid restitution. The United States government then tried Crow Dog for murder, and he was sentenced to hang. On his appeal to the Supreme Court, the court held that unless Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
authorized it, the courts had no jurisdiction to try the case. This case resulted in Congress enacting the Major Crimes Act
Major Crimes Act
The Major Crimes Act is a law passed by the United States Congress in 1885. It places 7 major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Native territory....
in 1885, placing 15 major crimes under federal jurisdiction if committed by an Indian against another Indian on a reservation or tribal land.
Treaties and statutes
Crow DogSioux name was Kangi Sunká. was a BruléBrulé
The Brulé are one of the seven branches or bands of the Teton Lakota Sioux American Indian nation. They are known as Sičháŋǧu Oyáte , or "Burnt Thighs Nation," and so, were called Brulé by the French...
Sioux
Sioux
The Sioux are Native American and First Nations people in North America. The term can refer to any ethnic group within the Great Sioux Nation or any of the nation's many language dialects...
The Brulé Sioux were a band of the Lakota (formerly called Teton) Sioux. The Sioux name for their band is Sičháŋǧu Oyáte. subchief who lived on the Rosebud Indian Reservation
Rosebud Indian Reservation
The Rosebud Indian Reservation is an Indian reservation in South Dakota, United States. It is the home of the federally recognized Sicangu Oyate, also known as Sicangu Lakota, the Upper Brulé Sioux Nation, and the Rosebud Sioux Tribe , a branch of the Lakota people...
. The Rosebud reservation is located in south central South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
on that state's border with Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
. The tribe has made several treaties with the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the most recent being the 1868 Treaty of Fort Laramie
Treaty of Fort Laramie (1868)
The Treaty of Fort Laramie was an agreement between the United States and the Oglala, Miniconjou, and Brulé bands of Lakota people, Yanktonai Dakota, and Arapaho Nation signed in 1868 at Fort Laramie in the Wyoming Territory, guaranteeing to the Lakota ownership of the Black Hills, and further...
. This treaty provided that "If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indians, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States..." The treaty also provided that the tribe would stay in the reservation provided (which included the Black Hills
Black Hills
The Black Hills are a small, isolated mountain range rising from the Great Plains of North America in western South Dakota and extending into Wyoming, USA. Set off from the main body of the Rocky Mountains, the region is something of a geological anomaly—accurately described as an "island of...
) unless three-fourths of the adult male tribal members agreed. The United States, once gold was discovered, passed a law in 1877 that took the Black Hills away from the tribe without complying with the treaty. This started the Black Hills War
Great Sioux War of 1876–77
The Great Sioux War of 1876, also known as the Black Hills War, was a series of battles and negotiations which occurred between 1876 and 1877 involving the Lakota and Northern Cheyenne, against the United States...
, which included the Battle of the Rosebud
Battle of the Rosebud
The Battle of the Rosebud occurred June 17, 1876, in the Montana Territory between the United States Army and a force of Lakota Native Americans during the Black Hills War...
, the Battle of the Little Bighorn
Battle of the Little Bighorn
The Battle of the Little Bighorn, also known as Custer's Last Stand and, by the Indians involved, as the Battle of the Greasy Grass, was an armed engagement between combined forces of Lakota, Northern Cheyenne and Arapaho people against the 7th Cavalry Regiment of the United States Army...
and the Battle of Slim Buttes
Battle of Slim Buttes
The Battle of Slim Buttes was fought on September 9–10, 1876, in the Great Sioux Reservation between the United States Army and Miniconjou Sioux during the Great Sioux War of 1876...
, among others. Crow Dog was among the Sioux that fought in this war, while Spotted Tail
Spotted Tail
Siŋté Glešká was a Brulé Lakota tribal chief. Although a great warrior in his youth, and having taken part in the Grattan massacre, he declined to participate in Red Cloud's War, having become convinced of the pointlessness of opposing the white incursions into his homeland; he became a...
did not.
Murder of Spotted Tail
Oglala Lakota
The Oglala Lakota or Oglala Sioux are one of the seven subtribes of the Lakota people; along with the Nakota and Dakota, they make up the Great Sioux Nation. A majority of the Oglala live on the Pine Ridge Indian Reservation in South Dakota, the eighth-largest Native American reservation in the...
Sioux Chief Crazy Horse
Crazy Horse
Crazy Horse was a Native American war leader of the Oglala Lakota. He took up arms against the U.S...
. According to most reports, Spotted Tail had not been selected head chief by the tribe, but had been appointed by General George Crook in 1876, which hurt him in the view of many of the tribe. He was viewed as an "accomodatist" and was known to the Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
(BIA) as the "great peace chief." He also supervised the tribal police
Indian agency police
Indian agency police were policemen hired by the Indian agent during the late 19th and early 20th Centuries, assigned to a Native American tribe. Many tribes had no recognizable governments and therefore no tribal laws. On these reservations, the Indian Agent hired tribal members to effect law and...
of about 300 warriors. Crow Dog was a "traditionalist" and had been a captain in the tribal police, but was fired by Spotted Tail sometime after a July 4, 1881, confrontation during which Crow Dog pointed a rifle at Spotted Tail. At a tribal meeting on August 5, 1881, a number of tribal members criticized Spotted Tail for taking the wife of a crippled man into his own household as his own wife. It was also thought that the killing occurred as the result of two upset men meeting, both armed, and mistaking the other man's intentions.
In another version, Crow Dog was appointed by the tribal council to head the tribal police, which undermined the authority of Spotted Tail. Crow Dog discovered that Spotted Tail was taking money from ranchers for "grazing rights" and he denounced him for it, while Spotted Tail defended the practice. It was a later conflict with the Indian Agent
Indian agent
In United States history, an Indian agent was an individual authorized to interact with Native American tribes on behalf of the U.S. government.-Indian agents:*Leander Clark was agent for the Sac and Fox in Iowa beginning in 1866....
that forced the disbanding of the tribal police and Crow Dog's loss of his position. This version makes no mention of another man's wife being the reason for the killing, and states that Crow Dog ambushed Spotted Tail to gain power in the tribe. The matter was settled within the tribe, following long standing tribal custom, by payment of $600, eight horses, and one blanket.
Trial
Following the killing and the settlement according to tribal customs, the Indian Agent had Crow Dog arrested and taken to Fort Niobrara, Nebraska. Within 20 days, the U.S. Attorney GeneralUnited States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
and the Secretary of the Interior
United States Secretary of the Interior
The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...
concluded that the Federal Enclave Act of 1854 as modified by the Assimilative Crimes Act allowed the territorial death penalty to be applied to Crow Dog. In September 1881, Crow Dog was indicted by a federal grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
for murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
and manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
under the laws of the Dakota Territory
Dakota Territory
The Territory of Dakota was an organized incorporated territory of the United States that existed from March 2, 1861, until November 2, 1889, when the final extent of the reduced territory was split and admitted to the Union as the states of North and South Dakota.The Dakota Territory consisted of...
. In March 1882 the case was heard by Judge G. C. Moody, held at the First Judicial District Court of Dakota, located in Deadwood
Deadwood, South Dakota
Deadwood is a city in South Dakota, United States, and the county seat of Lawrence County. It is named for the dead trees found in its gulch. The population was 1,270 according to a 2010 census...
, South Dakota. Crow Dog was represented by A. J. Plowman and claimed that he had been punished and made reparations according to the customs of the Brulé Sioux tribe. According to a contemporary news report of the Deadwood Times it was the first time "in the history of the country,
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
and the Supreme Court accepted the case.
Opinion of the Court
Justice T. Stanley Matthews delivered the opinion of the unanimous court. Matthews noted that Crow Dog was indicted for murder under Revised Statute § 5339. Matthews then looked at the law dealing with Indians, specifically Revised Statute § 2145 (laws on federal crimes apply to Indian reservations) and § 2146 (exceptions) The first statute prohibited murder on federal land, the second statute applied the first statute to reservations, and the last had specific exceptions to prosecution. Matthews felt that this last section was the most critical one in the case, with the section stating unequivocally that federal law: "shall not be construed to extend to"It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality."
As a result, the trial court was without jurisdiction to hear the case, and the Writ of Habeas Corpus was issued discharging Crow Dog from federal custody.
Major Crimes Act of 1885
Shocked by the Supreme Court's decision, Congress passed the Major Crimes ActMajor Crimes Act
The Major Crimes Act is a law passed by the United States Congress in 1885. It places 7 major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Native territory....
in response. Those wishing to assimilate
Americanization (of Native Americans)
The Americanization of Native Americans was an assimilation effort by the United States to transform Native American culture to European-American culture between the years of 1790–1920. George Washington and Henry Knox were first to propose, in an American context, the cultural transformation of...
Indians into mainstream white society wanted to do away with the "heathen" tribal laws and apply white laws to the tribes. The BIA had been attempting since 1874 to extend federal jurisdiction over major crimes to reservations, without any success. Beginning in 1882, the Indian Rights Association
Indian Rights Association
The Indian Rights Association was an American social activist group dedicated to the well being and acculturation of Native Americans...
(IRA) also tried to extend federal jurisdiction, but in a different manner. The IRA believed that the tribes would be better served by a completely separate court system, modeled after U.S. courts and called agency courts. The only appeal would be to the Commissioner of Indian Affairs. The BIA opposed that approach, preferring to try only major crimes in the nearest federal court. Ex parte Crow Dog provided the BIA a perfect example of why this was needed, along with an incident involving Spotted Tail's son, Spotted Tail, Jr., in which the younger Spotted Tail participated in a fight during which three Brulé were killed. The younger Spotted Tail was also confined pending murder charges, and it took a direct order of the Secretary of the Interior
United States Secretary of the Interior
The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...
for the local BIA agents to comply with the Supreme Court decision before he was released. Between the BIA's efforts and the IRA efforts, the law was passed in 1885, making seven offenses federal crimes.
Tribal sovereignty
Crow Dog has also had a tremendous impact on tribal sovereignty. The decision recognized two distinct concepts (apart from the criminal part). First, Justice Matthews had noted that under Cherokee Nation v. GeorgiaCherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
, (1831) the Brulé tribe had a right to its own law in "Indian Country." The case outlines the concept that Indian tribes retain their own sovereignty, and this view is still valid; United States v. Lara, (2004) cited Crow Dog when holding that both a tribe and the federal government could prosecute Lara as they were separate sovereigns. Second, the court also created the plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
doctrine, when Matthews stated that the federal court did not have jurisdiction since Congress had not passed a law giving the court jurisdiction and taking away the rights of the tribe. Crow Dog was the last in a line of sovereignty cases that began with Cherokee Nation; the next major case, United States v. Kagama
United States v. Kagama
United States v. Kagama, , is a United States Supreme Court case that upheld the Constitutionality of the Major Crimes Act of 1885. Kagama was selected as a test case by the Department of Justice to test the constitutionality of the Major Crimes Act of 1885, which was passed as a rider to an...
, (1886), upheld the plenary power of Congress to enact the Major Crimes Act. Congress has subsequently used this power to breach the Medicine Lodge Treaty
Medicine Lodge Treaty
The Medicine Lodge Treaty is the overall name for three treaties signed between the United States government and southern Plains Indian tribes in October 1867, intended to bring peace to the area by relocating the Native Americans to reservations in Indian Territory and away from European-American...
with the Kiowa
Kiowa
The Kiowa are a nation of American Indians and indigenous people of the Great Plains. They migrated from the northern plains to the southern plains in the late 17th century. In 1867, the Kiowa moved to a reservation in southwestern Oklahoma...
by reducing the size of the Kiowa reservation without their consent.
External links
- Ex parte Crow Dog, , full text courtesy of Findlaw.com