The issue of Indian-on-Indian crimes eventually arrived at the Supreme Court in 1883 with the case of a Sioux leader, Crow Dog, who had been sentenced to death by the First District Court of South Dakota for the murder of Chief Spotted Tail. In this landmark case, Ex parte Crow Dog, the Supreme Court held that the United States lacked jurisdiction over crimes committed by one Indian against another. This decision was an important, if stilted, statement on tribal sovereignty and served as the final catalyst necessary to propel the jurisdictional changes viewed as essential by the melange of groups that desired to have federal law replace tribal law.
On March 3, 1885, a short year and a half after Crow Dog, these groups received their wish when Congress, by a rider attached to the general appropriations act, extended federal criminal jurisdiction over “all” Indians for seven major crimes—murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.18 In reality, however, several tribes, most notably the Five Civilized Tribes, were excluded from this act’s provisions. In fact, the Supreme Court would continue to recognize the Five Tribes as sovereigns capable of handing down judgments on major crimes over individuals within their jurisdiction. Although this attack on tribal sovereignty was not fatal, enactment of the appropriation act rider set precedence for actions by Congress and indicated the future direction of much federal Indian legislation. There was, however, some initial doubt as to the constitutionality of this profound federal intrusion on tribal sovereignty, and this became the central issue in Kagama.
THE ATTORNEYS’ WAR OF PERSPECTIVES
The facts in Kagama are simple enough. Two Indians from the Hoopa Valley Reservation in Humboldt County, California, Kagama (alias “Pac-tah Billy”) and Mahawaha (alias “Ben”), had been indicted for the murder of another Indian, Iyouse (alias “Ike”). The murder occurred on June 24, 1885, on the Hoopa Reservation, some three months after the Major Crimes Act had been passed. The reservation had been established in 1864 along the Trinity River northeast of Eureka, California. Kagama and Mahawaha’s attorney, Joseph Redding, argued in his brief to the Supreme Court that the Major Crimes Act was unconstitutional and should be voided because (1) Congress’s power to regulate commerce with Indian tribes was not an authorization for that body to enact criminal laws regulating Indian-on-Indian crimes committed within an Indian reservation; (2) until the Major Crimes Act, Congress had always “recognized and held inviolate tribal rights and the social system of the Indian tribes on their reservation”; and (3) in nearly all the congressional legislation enacted before the Major Crimes Act, and in virtually every treaty with Indians, a clause had been inserted in which the United States disclaimed jurisdiction over crimes committed by one Indian against another.19
Redding said: “The very idea of the reservation system is predicated upon the theory that the Indians are not citizens, are not foreign subjects, are not subject to the jurisdiction of the United States, except where a question of commercial intercourse is an element in the offense committed.”20 Redding stated that he could not discover any legal justification for Congress’s imposition of its criminal laws over domestic Indian matters. “If an Indian sees fit to burn his neighbor’s wigwam, what question of commercial intercourse there arises? None whatsoever. If Congress has authority to make them amenable for the offenses defined in this act, it can include all of the offenses in the calendar. . . . But if an Indian kills an Indian on a reservation there is no such connecting link between the Government and the Indian in such an act which, under the Constitution of the United States as it now stands, would give the Federal Courts jurisdiction.”21
Conversely, the brief for the United States by Attorney General A. H. Garland22 and Solicitor General John Goode relied on several novel arguments to support what they contended was the constitutionality of the Crimes Act. They began by reminding the justices of the “magnitude and importance” of the Court’s exercising judicial review of a political act. More importantly, and not surprisingly, they advocated a much broader interpretation of the Indian Commerce Clause. Acknowledging that Indian-on-Indian crimes were historically exempted, though only because it “would have been impossible to enforce such a provision at that time,”23 Garland and Goode asserted that the 1871 treaty rider that had terminated the treaty process between tribal nations and the federal government effected a “revolution in the policy of the government respecting Indian affairs.”24 This provision, they claimed, signaled that the Hoopa Reservation Indians no longer constituted a sovereign nation. And because the Indians had already “receded before the progress of the white man’s civilization,” it was imperative for the government to step forth to protect the remaining Indians.25 Such protection, they alleged, necessarily had to include a policy which would subject the Indians to federal jurisdiction. Interestingly, Garland and Goode emphasized that tribes in the Indian territory (especially the Five Civilized Tribes, whom Garland had earlier represented) that had “an organized government,” should be exempted from the Act’s provisions. Their perception was that the Five Tribes were “civilized enough” because of their institutionalized forms of governance modeled loosely after those of the United States.
Finally, and in an incredible passage, the government’s attorneys laid out what was for them the definitive argument:
If we are asked in what respect the commission of a crime by an Indian upon an Indian can relate to the questions of intercourse with an Indian tribe, we deem it an efficient answer to say that if we have to maintain intercourse with the Indians, it is necessary and proper that they shall not be permitted to destroy each other. If they are permitted to murder each other, it is certainly an interference with intercourse; because the number with whom intercourse will be held is thereby diminished.26
This was a fascinating rationale for intruding upon the inherent sovereignty of tribes suggested by the highest-level legal minds in the government—that Indians would exterminate themselves if Congress was not allowed to step in and assert control over internal tribal criminal matters. This statement suggests that Indian reservations—except the Five “Civilized” Tribes—were absolutely lawless and anarchic. In closing, Garland and Goode described both the Rogers and Cherokee Tobacco precedents as having invested in Congress all the authority necessary to enact the Major Crimes Act. “Because Congress has not heretofore gone [this] far,” said the attorneys, “is no reason it could not do so. It is purely a question of policy, of which Congress is the judge. . . .”27
MASKING WITHIN THE DECISION: THE OPINION
The case was heard in the District Court of the United States for the District of California and San Francisco. After Kagama and Mahawaha’s indictment, the case was certified to the Circuit Court of the United States for the District of California. However, the importance of the issues involved led a circuit judge and a district judge to certify several questions to the United States Supreme Court. The case was argued on March 2, 1886, and decided on May 10, 1886. Of the six questions sent forth, Justice Samuel Miller, for the Court, chose to focus on two: Whether section 9 of the Major Crimes Act which made it a federal offense for an Indian to kill another Indian was a constitutional act and within the power of Congress to enact; and whether the federal courts had the jurisdictional authority to “try and punish an Indian belonging to an Indian tribe for committing the crime of murder upon another Indian belonging to the same Indian tribe, both sustaining the usual tribal relations, said crime having been committed upon an Indian reservation made and set apart for the use of the Indian tribe to which said Indians both belong.”28
The importance of section 9 of the Indian Appropriation Act, the section in dispute, justifies its full recitation:
That immediately upon and after the date of the passage of this act all Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States,
and either within or without the Indian reservation, shall be subject therefor to the laws of said Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person, within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.29
However, despite the inclusiveness of the language of this measure, even this apparently national law exempted the Five Civilized Tribes. Representative John Rogers (D., Arkansas) stated during debate on the proposed measure in 1885: “Now, in the Indian Territory they have no laws except the Indian laws, and of course Congress does not intend, I imagine, to confer jurisdiction upon the federal courts.”30
Justice Miller said that the act was “separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes as defined by the common law.” This application of U.S. common law to Indian communities is puzzling. Treaty law and the Commerce Clause are the source of U.S. authority to deal with tribes. Conversely, common law is that system of laws which originated in England, based on court decisions and the doctrines implicit in those cases, and on customs and usages rather than on codified written laws. Miller appears to have relied on a common-law understanding of section 9 for two reasons. First, it was the particular legal system that he was most familiar with. Second, a reliance on treaty law and the Commerce Clause would have denied federal jurisdiction. In effect, Miller unilaterally selected a different well from which to draw the law—using resources that would prove compatible with his extraconstitutional actions.
The two distinct definitions that Miller gleaned from the appropriation act were as follows: first, where the Indian-on-Indian crime was committed in a territorial jurisdiction, whether on or off an Indian reservation; and second, where the offense occurred within the boundaries of a state but within an Indian reservation. In the first case, Miller said the territory would have jurisdiction; in the second, the United States would have jurisdiction.31 Here we see that the Court was completely ignoring the distinctive status of Indian homelands. First, Indian reservations are not territories of the United States. Miller conceded as much when he noted that “this proposition [Indian-on-Indian crimes being subject to territorial jurisdiction] itself is new in legislation of Congress. . . .”32 It certainly was, and the Court did not even seek to determine if there was, in fact, a constitutional basis for such an action. This lack of action indicated that the Court had already determined that it was going to defer to Congress on this matter. Even though Congress’s crime measure action was clearly unconstitutional, the Court was intent on finding a way to rationalize the act.
Next, Miller asserted the second distinction enunciated in the act—that the United States would have jurisdiction over Indian-on-Indian matters even arising within state boundaries—was a further intrusion that challenged and displaced state jurisdiction. Miller was proceeding to develop a false scenario that would allow him to set up the United States as the only legitimate political power with criminal jurisdiction, thus flouting the long-established treaty relationship between tribes and the United States under which neither federal territories nor states, nor the federal government itself, had jurisdiction over internal tribal affairs.
Federal Power Despite Constitutional Silence
Miller, continuing his analysis without any consideration of the separate and historically independent status of the Indians of the Hoopa Reservation, said, “Although the offence charged in this indictment was committed within a State and not within a Territory, the considerations which are necessary to a solution of the problem in regard to the one must in a large degree affect the other.”33 Plainly, in the nationalist/federalist consciousness which now had saturated the Supreme Court, Miller could discuss the events of the case and not even mention the Hoopa Reservation as having an actual political existence apart from the United States, territories, or states.
Continuing his disregard of a century of federal legislation, the treaty process, and early Supreme Court precedents, Miller noted that the Constitution itself said little about the tribal-federal relationship. “The Constitution,” said Miller, “is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders.”34 Miller then proceeded to describe the Enumerative and Commerce Clauses, which are the only clauses that expressly mention the Indians. The Court accurately stated that neither these clauses nor any other language in the Constitution provided the United States with any legal power “to enact a code of criminal law for the punishment of the worst class of crimes known to civilized life when committed by Indians.”35
The Commerce Clause, in particular, which had been heavily relied upon by government attorneys in their bizarre “extermination theory,” was analyzed by Miller and found to be insufficient as a basis on which to justify federal jurisdiction over Indians in Indian country. In Miller’s words:
[W]e think it would be a very strained construction of this clause, that a system of criminal laws for Indians living peaceably in their reservation, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common-law crimes of murder, manslaughter . . . and the like, without any reference to their relation to any kind of commerce, was authorized by the grant of power to regulate commerce with the Indian tribes.36
If Congress lacked constitutional authorization under the Commerce and Taxation clauses, and had not secured it via the treaty process, then Congress had no basis for exerting such power. Likewise, there was no enumerated power, nor had tribes given their consent. At this point, Miller and the Court should have declared the law unconstitutional and released Kagama and Mahawaha.
In an earlier case, United States v. Bailey,37 under a similar circumstance, a federal circuit court had been called upon to test the constitutionality of an 1817 law which purported to give the federal government jurisdiction over crimes committed by Indians against whites on Indian lands. Bailey, however, held that by this law “Congress [had] transcended their Constitutional powers” and declared the act null and void.38 The Court said: “The Cherokee country can in no sense be considered a territory of the United States, over which the federal government may exercise exclusive jurisdiction; nor has there been any cession of jurisdiction by the state of Tennessee; . . . if the state has no jurisdiction, or has failed to exercise it, it does not follow that the federal government has a general and unlimited jurisdiction over the territory; for its powers are delegated, and cannot be assumed to supply any defect of power on the part of the state.”39
Expanding its statement on the delegated and limited nature of the federal government’s authority, the Court said that this was “a principle so obvious as not to admit of controversy; though the extent of those powers has given rise to much discussion and wide differences of opinion.”40 Thus, when the validity of a congressional act is in question, said the Court, “we must look to the constitution for the power to pass such an act.”41 Unlike Miller, who would discard the Commerce Clause and the Constitution itself in his effort to legitimize the Major Crimes Act, Bailey more soundly observed that the United States had to rely on the Commerce Clause—as it had in enacting the Intercourse laws—for “there is no other clause of the constitution which can have any bearing upon the point under consideration; and if the power is not given by this article, it is given nowhere.”42
And while acknowledging that Congress clearly had the authority
to regulate commerce with Indian tribes, the Court refused to concede that this clause somehow authorized Congress to “assume a general jurisdiction and prescribe for the punishment of all offences.”43 The Court said “the power of congress is limited to the regulation of a commercial intercourse, with such tribes of Indians that exist, as a distinct community, governed by their own laws, and resting for their protection on the faith of treaties and laws of the Union. Beyond this, the power of the federal government in any of its departments cannot be extended.”44
The circuit court was aware that Congress had enacted a law without constitutional mooring and concisely observed the danger in such an action: “It is argued that unless the defendant can be tried under the act of congress, there is no law by which he can be punished. If on this ground the federal government may exercise jurisdiction, where shall its powers be limited? The constitution is no longer the guide, when the government acts from the law of necessity. This law always affords a pretext for usurpation. It exists only in the minds of those who exercise the power, and if followed must lead to despotism.”45
The question, then, is: what had changed from the Bailey decision in 1834 to Kagama in 1886 that would justify Miller’s shunning of the very constitutional principles the Supreme Court is charged with interpreting? The Constitution had not been amended to allow the federal government greater authority over tribes. The Indians of the Hoopa Reservation had not negotiated a treaty or series of treaties in which they had invited or been forced to allow federal authority over their internal criminal matters. What had changed was the Court’s perception of the status of tribes and its perception of Congress’s power in relation to those tribes.
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