Making Peace with Crow Dog's Ghost: Racialized Prosecution in Federal Indian Law

Crow Dog Recognizes Sovereignty; Kagama Takes It Away

The Indians' sovereignty in Crow Dog, of course, was never an issue limited to self-government or the narrow right to use their customary law. Rather, there is no sovereignty without land, and no sovereignty without Indians being able to fish and hunt, practice their religions, and enforce their own customary laws.¹

Unless you start with Cristoforo Columbo and include crime by governments,² the story of American Indians and race and criminal justice policy begins the strange journey to its current pass in Crow Dog's case,³ partially because the line between war policy and criminal justice policy is clearly crossed and partially because the Supreme Court in Crow Dog defined the logical beginning point. Much of what followed has been a retreat from Crow Dog, a retreat that makes perfect sense from the colonial point of view.

Crow Dog killed Spotted Tail on the Great Sioux Reservation in 1881. Both parties were Brule. While Crow Dog had a self-defense claim to litigate,⁴ there was never any doubt that he in fact committed the homicide. He was called to account within the Brule justice system and ordered to make substantial payments to Spotted Tail's family. Since Crow Dog apparently posed no ongoing danger to the peace of the reservation, that would have been the end of the matter.

Public opinion was not disposed to let that be the end of the matter because the media of the time portrayed Spotted Tail as an assimilationist Indian and Crow Dog as a rebel. Indians might call the differences between the two men tactical rather than strategic, but the public perception was otherwise. So it was that Crow Dog was indicted in a U.S. territorial court, tried, convicted, and sentenced to hang by the neck until dead for the homicide of Spotted Tail.

Crow Dog's writ of habeas corpus arrived in the Supreme Court as a case of first impression: do United States courts have inherent jurisdiction over a crime by one Indian against another Indian on Indian land? The Court held that the United States has no such jurisdiction, and Crow Dog escaped the noose. To hold otherwise, said the Court, would be to try Indians

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 white man's morality.⁵

One wonders whether the Court understood that it was "the red man's revenge" that preserved Crow Dog's life while "the white man's morality" wanted to kill him, but the law spoken seems plainly correct. If Indian nations were not separate sovereigns in the sense of criminal law then it is unclear how they could have the sovereignty to cede to the United States the land it claimed then and claims now under numerous and often conflicting cession treaties. The blind paternalism of the opinion is an artifact of the times, but the holding is a plain victory for tribal justice, albeit coupled with a statement that Congress could extend federal jurisdiction upon Indian land if it chose.⁶

Congress accepted the Court's invitation with alacrity in the Major Crimes Act.⁷ Within a month of the act's passage in 1885, Kagama killed Iyouse on the Hoopa Valley Reservation and Indian sovereignty was once more put to the test. The paternalism of Crow Dog survived in U.S. v. Kagama;⁸ the dominance of Indian sovereignty did not. Leaving aside that the Crow Dog opinion practically invited the Major Crimes Act, it seems clear in hindsight that the United States had to have authority over the persons of Indians in order effectively to assert authority over Indian land not...