Ex parte Crow Dog, 109 U.S. 556 (1883), is a landmark decision of the Supreme Court of the United States that followed the death of one member of a Native American tribe at the hands of another on reservation land. Crow Dog was a member of the Brulé band of the Lakota Sioux. On August 5, 1881 he shot and killed Spotted Tail, a Lakota chief; there are different accounts of the background to the killing. The tribal council dealt with the incident according to Sioux tradition, and Crow Dog paid restitution to the dead man's family. However, the U.S. authorities then prosecuted Crow Dog for murder in a federal court. He was found guilty and sentenced to hang.
The defendant then petitioned the Supreme Court for a writ of habeas corpus, arguing that the federal court had no jurisdiction to try cases where the offense had already been tried by the tribal council.Ex parte Crow Dog, . The court found unanimously for the plaintiff and Crow Dog was therefore released. This case was the first time in history that an Indian was held on trial for the murder of another Indian. The case led to the Major Crimes Act in 1885, which placed some major crimes (initially seven, now 15) under federal jurisdiction if committed by an Indian against another Indian on a reservation or tribal land. This case was the beginning of the plenary power legal doctrine that has been used in Indian case law to limit tribal sovereignty.
Background
Treaties and statutes Crow Dog was a Brulé subchief who lived on the Great Sioux Reservation, in the part that is now the Rosebud Indian Reservation in south-central South Dakota on its border with Nebraska. The tribe had made several treaties with the United States, the most significant being the 1868 Treaty of Fort Laramie.2 998 (Charles J. Kappler, ed.,1904). This treaty provided that Indians agreed to turn over those accused of crimes to the Indian agent, a representative of the U.S. government in Indian affairs. The treaty also stipulated that tribal members would stay on the reservation provided (which included the Black Hills) unless three-fourths of the adult male tribal members agreed otherwise.Kappler, at 1002. In 1874, Colonel George Armstrong Custer led a party into the Black Hills to investigate rumors of gold. Once he announced the discovery of gold on French Creek, the Black Hills Gold Rush brought prospectors into that area in violation of the Fort Laramie treaty. The Lakota protested in 1875 to no avail, as the United States demanded that the Lakota sell the Black Hills., 79-80 (1999). The United States then declared the Lakota as hostile, which started the Black Hills War.Lazarus, at 84. The war included the Battle of the Rosebud, the Battle of the Little Bighorn and the Battle of Slim Buttes, among others. The war ended in 1877. Crow Dog fought in this war, while the man he later killed, Spotted Tail, did not. 25 (1995). Congress passed a law later in 1877 () that took the Black Hills away from the tribe, contrary to the language of the treaty. 166 (Charles J. Kappler, ed., 1904) (). To quote the proposed Bradley Bill, the "Sioux Nation views the Black Hills as inalienable and have never voluntarily surrendered or ceded the Black Hills, and have resolved not to accept in exchange for extinguishment of title to such lands or the right to practice traditional religion in the Black Hills area."
Murder of Spotted Tail
On August 5, 1881, Crow Dog shot and killed Spotted Tail, who was the uncle of Oglala Lakota war leader Crazy Horse., 83 (2d ed. 1976). The murder, as described in the Weekly Calistogian twelve days after it had occurred, was as follows: Spotted Tail was leaving the Council Lodge when Crow Dog was spotted approaching him in a wagon. Crow Dog exited his wagon and knelt down, prompting Spotted Tail to ride up beside him on his horse. At this point Crow Dog shot him through his left breast, got in his wagon, and swiftly left the scene of the crime for his camp nine miles away.
Spotted Tail had not been selected as a chief by the tribe, but instead had been appointed by General George Crook in 1876, which hurt him in the view of many of the tribe., 40 (1919). He was viewed as an accommodationist and the Bureau of Indian Affairs (BIA) referred to him as the "great peace chief."Michael A. Powell, Crow Dog and the Issue of Tribal Jurisdiction, 283 (Gordon Morris Bakken, ed., 2000). He also supervised the tribal police of about 300 men.Hyde, at 293. In contrast, Crow Dog was a traditionalist,Powell, at 283. and although he had been a captain in the tribal police, he was fired by Spotted Tail sometime after a July 4, 1881, confrontation during which Crow Dog pointed a rifle at Spotted Tail., 198-99 (2004).
On August 5, tensions further escalated at a tribal meeting where a number of tribal members criticized Spotted Tail for taking Light-in-the-Lodge, the wife of Medicine Bear, a crippled man, into his household as his second wife., at 40; , at 108-09; Gaylen L. Box, Crow Dog: Tribal Sovereignty & Criminal Jurisdiction In Indian Country, 13 (2007). It was believed that the killing occurred that day as the result of Crow Dog and Spotted Tail meeting, both armed, and mistaking the other man's intentions., at 201. In another version of the story, 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., at 40; , at 313-14. A later conflict with the Indian agent forced the tribal police to disband, and Crow Dog lost his position., at 331. 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., at 334. There is no consensus among historians as to which events happened as described.
In either case, the matter was settled within the tribe, following longstanding tribal custom, by Crow Dog making a restitution payment of $600, eight horses, and one blanket to Spotted Tail's family., at 1194; , 46-66 (1993); , 135 (2003); , 4 (1998); , at 110.
Trial
Following the killing and the settlement under tribal customs, the Indian agent Henry Lelar had Crow Dog arrested and taken to Fort Niobrara, Nebraska in contradiction of long-standing federal policy and in defiance of Brule law., at 4; , at 110-11. The arrest was completed within a day of the killing. Within 20 days, the U.S. Attorney General and the Secretary of the Interior concluded that the Federal Enclave Act of 1854Now codified at . as modified by the Assimilative Crimes Act allowed the territorial death penalty to be applied to Crow Dog., at 113-15. 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 Gideon C. Moody at the First Judicial District Court of Dakota, located in Deadwood, South Dakota., at 125-28. The court appointed A. J. Plowman to represent Crow Dog,, at 135; , at 121. who 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.", at 1193. The trial was viewed at the time as a sham, and despite testimonies from Indian witnesses stating that Spotted Tail had killed a rival once before, that Spotted Tail drew a pistol on Crow Dog, and that Spotted Tail's intention was to kill Crow Dog,, 271 (1877); , at 122. Crow Dog was convicted and sentenced to be hanged on May 11, 1882., at 125. It is worth mentioning that the reporting at the time states that Spotted Tail only drew a pistol on Crow Dog after he had already been shot by him. The prosecution had presented five Indian witnesses who stated that Spotted Tail was ambushed, and some witnesses stated he was unarmed. It is believed due to the expediency of the initial arrest that it was a plot to infringe upon indigenous sovereignty from the beginning. 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.United States v. Crow Dog, 14 N.W. 437 (Dak. 1882). Crow Dog then petitioned the United States Supreme Court for a writ of habeas corpus and the Supreme Court accepted the case.Crow Dog, 109 U.S. at 557; , at 1195; , at 136; , 168-70 (1983); Powell, at 284.
Opinion of the Court
Justice Stanley Matthews delivered the opinion of the unanimous court. Matthews noted that Crow Dog was indicted for murder under a statute prohibiting murder on federal land.. Matthews then looked at the federal laws dealing with Indians, including a statute that applied the prohibition on murder to Indian reservations. and another covering exceptions to prosecution. 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 [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 the exceptions to prosecution. 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 evocation of the principle of tribal sovereignty,Robert N. Clinton, There Is No Federal Supremacy Clause For Indian Tribes 113 (2002). Matthews stated:
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.Crow Dog, 109 U.S. at 571; , at 26.; Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination 84 779 (2006).
As a result, the Court concluded, the First Judicial District Court of Dakota was without jurisdiction to hear the case. The writ of habeas corpus was issued, discharging Crow Dog from federal custody.Crow Dog, 109 U.S. at 572; , at 129.
Subsequent developments
Major Crimes Act of 1885