The average political science student would be shocked to hear that the Supreme Court decided in Ex parte Crow Dog (1883) that the US government has no criminal jurisdiction over Indian tribes in Indian country. However, today the situation could not be further from that ruling, with the federal government in control of every facet of Indians’ lives both on and off the reservations. The logic behind Crow Dog and its aftermath are crucial to understanding the reality of modern Indian regulation.
The political problem with Crow Dog is that the “criminal” party won. Crow Dog had murdered a Brulé chief, Spotted Tail, and then paid restitution to Spotted Tail’s family in accordance with tribal custom. Unfortunately, to many white spectators, it seemed that Crow Dog got off easy for his murder. A certain breed of conservatives who cared deeply about law and order was on the rise, fueled by the story of a lawless Wild West. These conservatives worked their way into Congress and the presidency, passing and enforcing oppressive legislation such as the 1885 Major Crimes Act. However, such law and order conservatives practiced hypocrisy in that they wanted civilized law and judicial systems for Indians only, instead of applying to whites too. For example, many settlers and travelers seeking Western land encroached on Indian country in violation of treaties. Also, the US government broke promises made in the 1868 Treaty of Fort Laramie when it started the Black Hills War. Thus the question seems to be consistency: Supporters of law and order for Indians on Indian land needed to realize that Indians were not the only “criminals” and law-breakers.
Within the ruling is perhaps the most powerful assertion of tribal sovereignty yet. Justice Stanley Matthews wrote: “[This case] 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.”1 Having found no “clear expression of the intention of Congress,” the Court reasoned that Indian tribal law would suffice to administer justice. The reality is that many whites were ignorant of the way Indian tribal law works. To them, a restitution of $600, 8 horses, and a blanket seemed savage. Yet for the Indian tribes, such a system succeeded wondrously. It can be analogized by domestic corporal punishment. If a child performs an egregious act, then a parent spanks him or her to signal a behavior correction. To a self-righteous outsider, spanking a child may seem immoral, but the matter is between children and parents in the home and subsequently beyond the control of federal authorities and states’ police power. Just as the families of both Crow Dog and Spotted Tail agreed to the restitution, so do parent and child eventually return to friendly terms. Just as spanking is legal in all 50 states, so should tribal law be the sole standard of arbitration for crimes committed between Indians in Indian country.
Unfortunately, Congress enacted the 1885 Major Crimes Act, which the Court later ruled was a valid application of plenary power. In order for the US to restore the deserved tribal sovereignty of Indians, the government must first return to the principles established in Crow Dog.
1. Ex parte Crow Dog, 109 U.S. 556 3 S. Ct. 396; 27 L. Ed. 1030