Encyclopedia of the Great Plains | EX PARTE CROW DOG

On November 3, 1883, the US Supreme Court decided the federal courts have no jurisdiction over Native American tribal Councils (Ex parte Crow Dog). From the article:

"Encyclopedia of the Great Plains
In 1883 the U.S. Supreme Court rendered a decision in Ex Parte Crow Dog that reaffirmed a basic promise of federal law as it dealt with the Native American nations: that these nations are political sovereigns and have a right to be ruled by their own law in their own land. Within three years the same Court would break that promise, just as the political branches of the government had broken treaties. Nevertheless, Ex Parte Crow Dog remains a foundational case for the tradition of legal pluralism that is today manifested in the laws and institutions of Native American sovereigns.

On the afternoon of August 5, 1881, Kangi Sunka (Crow Dog) shot and killed Sinte Gleska (Spotted Tail) on a road in the Rosebud Indian Agency on the Great Sioux Reservation in Dakota Territory. Both men were respected among the Brule Lakota. At the time of his death Spotted Tail was attempting to maintain a homeland for his people as both a traditional chief and a leader recognized by the Bureau of Indian Affairs (BIA). Crow Dog had ridden with Crazy Horse yet also served several terms as a BIA-appointed chief of Brule police. The complex forces of culture and politics that pitted these two men as enemies remain a mystery. The facts of their encounter are still disputed: was it assassination or self defense?

After the death of Spotted Tail the tribal council met and, following Brulé law, sent peacemakers to both families to restore harmony and order. The families agreed to a payment of $600 and gifts of eight horses and one blanket, which were quickly delivered to Spotted Tail's people. Nevertheless, in contravention of prior policy that had honored Native American self-government, Henry Lelar, the acting agent at Rosebud, ordered the arrest of Crow Dog. He was quickly arrested and imprisoned at Fort Niobrara, Nebraska.

Crow Dog's trial in federal court, Dakota Territory, was tainted by strong anti-Indian prejudice. The lead prosecution witness, Agent John Cook, was in Chicago when the killing occurred, but he testified to Crow Dog's political animosity. Crow Dog, ably represented by attorney A. J. Plowman, was allowed to present his claim of self-defense, but Pretty Camp, his wife and an eyewitness, was not allowed to testify. Moreover, there is unsettling evidence of perjury. But all of this factual controversy is beside the point. The claim of federal jurisdiction, the legal power to make and apply law for Indian-to-Indian matters within Indian Country, is the crux of the matter, and the conviction and death sentence given Crow Dog brought the issue to the Supreme Court.

By writ of habeas corpus Crow Dog urged the Supreme Court to deny federal jurisdiction in the matter. At the same time, the BIA and the prosecution, which had orchestrated the arrest and trial as part of a plan conceived as early as 1874 to extend federal law into Indian Country, argued that treaties and statutes provided federal jurisdiction. The federal government made the following argument: section 5339 of the Revised Statutes provides for the death penalty for any murder within the jurisdiction of the United States; title 28 extends the general law of the United States to Indian Country, but it has an exception for crimes committed by one Indian against another Indian; that exception was repealed by the treaty of Fort Laramie (1868), which provided that "bad men among the Indians" shall be delivered to the United States; and the act of 1877 (Congress had prohibited further treaty making with Native Americans in 1871) provides that Congress shall "secure to [the Sioux Nations] an orderly government; [and] they shall be subject to the laws of the United States."

The Supreme Court rejected the government's argument, stating that such an understanding would reverse an unbroken policy of respect for Native American sovereignty. First, if "bad men" were not delivered, the treaty called for deductions from annuities due the Lakotas; thus it could not mean "bad men" who acted against other Sioux. Second, the statutory promise of "orderly government" meant a pledge of self-government for the Sioux. Finally, to be "subject to the laws of the United States" meant subject to the power of Congress to make federal Indian law for distribution of sovereignty between Native Americans and the United States, not subject as individuals to the generality of federal law. Crow Dog was granted his release.

Crow Dog returned to the Rosebud Agency. He remained a leader among the Brulé, taking Ghost Dancers into the Badlands in 1890 and refusing an allotment until 1910. The BIA repeatedly sought his removal from the Rosebud Agency. He died there in 1912.

Yet Ex Parte Crow Dog was tainted by racism. Its concluding language referred to Native Americans living a "savage life" and having a "savage nature," and it described Native American law as the "red man's revenge." This played into the hands of the Interior Department and the BIA, which had since the late 1870s urged Congress to pass a statute extending federal law to Indian-on-Indian crimes within Indian Country. Two years after Ex Parte Crow Dog Congress passed the Major Crimes Act of 1885. The act cut deeply into the promises of self-government and sovereignty by creating federal jurisdiction over seven enumerated crimes when committed by one Indian against another Indian. (Today the statute covers fourteen crimes.)

A year later, in United States v. Kagama (1886), the Supreme Court upheld the legality of the act. The Court found a "duty of protection" arising from the "weakness and helplessness" of the Native Americans that granted Congress power despite the lack of any constitutional authority. Civilization was brought to Indian Country in the form of punishment, retribution, violence, and isolation of wrongdoers. The plenary power of Congress over Native American affairs was affirmed, and the people witnessed again the fragile nature of legal promises."