Lacking a Demonstrable Source of Authority
Illustration of the chief justice and associate justices of the Supreme Court passing from the robing room to the court chambers, from Frank Leslie’s Illustrated Newspaper, 1881. [Library of Congress]
In the early 1880s Crow Dog, a member of the Sicangu Lakota Oyate (or Brulé Lakota or Brulé Sioux in older literature) ambushed and killed Spotted Tail, who was also Sicangu Lakota. The event took place on tribal land, which was increasingly surrounded by colonizers yet still very remote from what then constituted much of the United States. The motivation for the killing was assuredly political in nature — both men vied for leadership authority within the community — but it may have had personal elements as well. Nonetheless, the heinous act created a rift within the community, one that the community sought to repair. Shortly after the killing, a tribal council sent peacemakers who helped the families negotiate a settlement. The issue was resolved within the community to its satisfaction when Crow Dog and his family agreed to pay Spotted Tail’s family $600, eight horses, and a blanket, an astounding sum that testified to the significance of the family’s and community’s loss.
Although the matter was settled to the community’s satisfaction under Sicangu Lakota Oyate law, federal officials seized on what they regarded as an opportunity. At the time, in the 1880s, the federal government was in the early stages of what is regularly referred to as the Allotment Era of federal policy. The Allotment Era, lasting from approximately 1871 to 1934, was defined by attempts by the federal government, philanthropists who believed they were doing right, and those who sought tribal lands and resources to destroy tribal nations and tribalism. The Allotment Era included, among other things, the process of allotment that fundamentally changed and reduced tribal land holdings, boarding schools that sought to eradicate tribal ways of life by forcing Native children into a Western mode of life, and Indian police and Indian courts that enforced Western law and norms in Native spaces. It would be difficult to overstate the amount of time, energy, and resources that were directed toward eradicating tribal ways of life during the Allotment Era or the lasting harm that the era’s efforts continue to cause.
Shortly after the matter was settled among the Sicangu Lakota Oyate, the federal government arrested Crow Dog under the pretense that a “public outcry” demanded that the killer be brought to justice. The true purpose for arresting Crow Dog, however, had little to do with public opinion. At the time, federal officials tasked with engaging with Native peoples wanted to exercise criminal jurisdiction over Native peoples on Native lands. In one respect, the sovereignty and nationhood of Native peoples made this seem absurd — much like it would be absurd if the United States tried to extend its criminal law over peoples living in Canada or Mexico. Yet, tribal nations were increasingly surrounded and imposed upon by the growing colonial force that was the United States. Under these circumstances and within the spirit of the Allotment Era, forcing American criminal law on Native peoples on Native lands felt less like an absurdity to many federal officials and more like a necessity.
Crow Dog’s arrest and trial were intended to produce a test case that would provoke American courts to decide whether the federal government had jurisdiction to exercise American criminal law over Native peoples on Native lands. The trial was swift, Crow Dog was convicted in a territorial court and sentenced to hang, and federal officials had their test case that was soon to be heard by the Supreme Court. According to legend, Crow Dog managed to convince a federal marshal to let him go free for a period of time to arrange his affairs. The day Crow Dog promised to return was cold and snowy, and few if any expected him to keep his promise. Nonetheless, he showed up on time, making him a local hero.
Crow Dog’s situation allows us to recognize that the American, or Western, system of justice is focused on punishing the offender. Crow Dog, under this vision of criminal justice, needed to feel a roughly equivalent amount of harm that he caused. Federal officials sought the death penalty and were incensed when he “went free” under tribal law. However, for the Sicangu Lakota, and for many tribal nations, the focus of the criminal justice system was not on punishing the offender but rather on making the victim (or the victim’s family) as whole as possible. Restoring a sense of balance and harmony within the community was the foremost goal and best accomplished through restitution rather than punishment. Consequently, under the Sicangu Lakota system, Crow Dog was not buying his way out of or otherwise avoiding justice but fully and meaningfully participating in effectuating it.
Every single court case, from the biggest to the smallest, is just a question that is seeking an answer: Did the accused commit the crime for which she or he is on trial? Did the company breach its contractual obligations? Is a tomato a fruit or a vegetable? Consequently, the key to reading and understanding court opinions is to discern the question that the court is trying to answer. When the test case that emerged from Crow Dog’s situation reached the Supreme Court, the question to be considered was blissfully uncomplicated and likely obvious: Did the federal government have jurisdiction to enforce American criminal law over Native peoples on Native lands?
The answer, according to the Supreme Court in its 1883 decision Ex Parte Crow Dog, was an equally simple “no,” even if the methodology for arriving at that answer was somewhat convoluted and the language employed by Justice Stanley Matthews in the majority opinion was replete with the types of rhetorical unnecessities that Strunk and White sought to kill off. Put most simply, the federal government had already given itself jurisdiction over crimes committed in “Indian Country” through two statutes. Yet, in those statutes the federal government specifically exempted from its jurisdiction crimes that were committed by one Native person against another Native person or crimes by Native people that had already been punished by the tribal nation. Since Crow Dog clearly fell within both exceptions, the lawyers for the federal government sought alternative justifications for federal jurisdiction and settled on tribal cessions made in an 1868 treaty and an 1877 agreement. The Supreme Court rejected this line of reasoning, stating among other things, “It is quite clear from the context that this does not cover the present case of an alleged wrong committed by one Indian upon the person of another of the same tribe.” Without jurisdiction, the federal government was forced to free Crow Dog, at which point he returned to his community, lived to an old age, and continued to remain a thorn in the side of federal officials.
The Supreme Court’s decision in Crow Dog was unquestionably a victory for Crow Dog and the Sicangu Lakota Oyate particularly and for tribal sovereignty and Native America more generally. It was an acknowledgment by the courts of the United States that the federal government, in what might be understood as a commitment to its foundational principles, could not simply assert its authority without a basis for that authority. It is rightfully celebrated for that which it stands.
Unfortunately, victories for tribal interests in American courts are rarely complete or without some corresponding aspect or aspects that diminish, limit, or completely negate the positive impact of the case for Native America. This is so with Crow Dog. Two distinguishing features significantly dull the shine of this particular outcome. The first is the rationale upon which the decision was made. While the final result of the case supported tribal sovereignty, Justice Matthews’ opinion makes clear that this was more an unintended consequence than a purposeful goal or statement of principle. The main focus in Matthews’ opinion was on federal claims to authority and their sources, or lack thereof. There is no discussion whatsoever of tribal criminal procedures or that the matter was handled within the community to the community’s satisfaction.
The limited discussion of tribal peoples and methods in the opinion centers not on Sicangu Lakota Oyate structures or law but on the supposed deficiencies of Native America. In language that echoed earlier decisions and portended future ones, Matthews described Native peoples as “wards subject to a guardian” and “a dependent community who were in a state of pupilage.” Consequently, Matthews would later argue, it was unfair to measure Native peoples against American law. As part of the most famous passage in the case, Matthews wrote that the application of American law to Native peoples “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.”
Native peoples, inferior to their American counterparts according to Matthews, were merely the lens to view American jurisdiction and process. Although the opinion happened upon such an end, Matthews clearly did not intend to foster or support tribal sovereignty or methodologies. On the contrary, Matthews’ opinion demonstrates a low opinion of Native peoples. Even though it was a win for tribal interests, the case has limitedusefulness as a building block or intellectual basis for subsequent arguments in favor of Native rights and authority.
The second prominent feature of Crow Dog that mitigated its benefit for Native America was how Justice Matthews opened the door to a reconsideration of the result. Near the end of his opinion, Matthews wrote that to find American jurisdiction over Crow Dog’s actions on tribal land was “to reverse in this instance the general policy of the government towards the Indians, as declared in many statutes and treaties, and recognizedin many decisions of this court, from the beginning to the present time.” Had Matthews ended here, he merely would have made the type of general observation that is found in countless court opinions and that may be more or less accurate but is often ephemeral and mostly harmless. However, he did not stop with this bit of fluff. Instead, he continued by stating, “To justify such a departure, in such a case, requires a clear expression of the intention of Congress, and that we have not been able to find.”
Particularly at its highest levels, we often conceptualize the three branches of the American government as sometimes “talking” to each other. Since authority is divided between the president, Congress, and the courts, none of the three can exercise its will without limitation. To that end, sometimes when one branch runs against the boundaries of its authority, it will signal through various means to another branch what it would like to see done or propose an alternative path to complete a goal that cannot be accomplished as currently constituted or otherwise offer guidance, advice, or requests.
Understood within this framework, Justice Matthews was very much “talking” to Congress through this opinion. The Court was unable to find American jurisdiction over Crow Dog and tribal lands under the circumstances with which it was presented. Consequently, it is difficult to understand Matthews’ assertion it would take a “clear expression of the intention of Congress” for the Supreme Court to find jurisdiction as anything other than an open invitation to Congress to change the circumstances. Matthews offered his brief description of the “general policy of the government towards the Indians” and then explained how Congress might alter that general policy with a “clear expression.” Matthews deliberately neutered the opinion’s capacity to protect and acknowledge tribal sovereignty by describing to Congress how to overcome the ruling in future cases.
Two years later, Congress accepted Matthews’ invitation, passing the Major Crimes Act in 1885. As originally constituted, the new law gave the federal government jurisdiction over seven “major” crimes committed by a Native person against another Native person in Indian Country, including murder. Federal officials and others seeking to radically transform Native peoples and ways of life had another weapon in their arsenal, just as they had hoped when they initiated the action against Crow Dog.
Of course, just because Congress passes a law doesn’t mean that it has the authority to do so. As many of us learn in our tenth-grade civics class, our government is one of limited and enumerated powers. Years ago, after I finally looked up the word “enumerated,” I better understood the basic premise that the phrase “limited and enumerated powers” is intended to invoke: governmental authority extends only as far as is spelled out in the U.S. Constitution. Put differently, unless the power to act is articulated in the U.S. Constitution, the government doesn’t have that power. This is how we assess the constitutionality, or validity, of laws — those laws that are made under demonstrable grants of authority are constitutional and valid, and those laws that lack a demonstrable source of authority are unconstitutional and invalid. When an assessment of the constitutionality of a law occurs in a court, we refer to the process as judicial review.
Congress passed the Major Crimes Act, but this in and of itself did not settle the question of American jurisdiction over Native individuals on tribal lands. Eventually the constitutionality of the Major Crimes Act would be tested.
Adapted excerpt reprinted with permission from The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution, by Keith Richotte Jr., published by Stanford University Press. © 2025 by Keith Richotte, Jr. All rights reserved.
