Ex Parte Crow Dog

Ex Parte Crow Dog.

Argued November 26th, 1883.—Decided December 17th, 1883.

1. The 1st Judicial District Court of Dakota, sitting as a circuit court of the United States, has jurisdiction under the laws of the United States, over offences made punishable by those laws committed within that part of the Sioux reservation which is within the limits of the Territory.

2. In the interpretation of statutes, clauses which have been repealed may still be considered in construing provisions which remain in force.

3. The definition of the term "Indian Country," contained in c. 61, § 1 of the act of 1834, 4 Stat. 729, though not incorporated in the Revised Statutes, and though repealed simultaneously with their enactment, may be referred to in order to determine what is meant by the term when used in statutes; and it applies to all the country to which the Indian title has not been extinguished within the limits of the United States, whether within a reservation or not, and whether acquired before or since the passage of that act.

4. The legislation of the United States may be constitutionally extended over Indian country by mere force of a treaty, without legislative provisions.

5. Neither the provisions of article 1 in the treaty of 1868 with the Sioux, that "if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws," nor any other provision in that act, nor the provision" in article 8 of the agreement embodied in the act of February 28th, 1877, c. 72, 19 Stat. 256, that they "shall be subject to the laws of the United States," nor any other provision in that agreement or act, operated to repeal the provision of Rev. Stat. § 2146, which excepts from the general jurisdiction of courts of the United States over offences committed in Indian country, "crimes committed by one Indian against the person or property of another Indian," and offences committed in Indian country by an Indian who has been punished by the local law of the tribe; and offences where by treaty stipulations the exclusive jurisdiction over the same is or may be secured to the Indian tribes respectively.

6. The objects sought to be accomplished by the treaty of 1868 with the Sioux, and the humane purposes of Congress in the legislation of 1877, examined and shown to be inconsistent with the assumption of such a general jurisdiction by the courts of the United States.

7. The doctrine that courts do not favor repeals of statutes by implication reasserted and authorities referred to. Especially a court of limited and special jurisdiction should not take jurisdiction over a case involving human life, through an implied repeal of a statute denying it, when the words relied on are general and inconclusive: and the fact that to hold that a statute repeals by implication a previous act would reverse a well settled policy of Congress, justifies the courts in requiring a clear expression of the intention of Congress in the repealing act.

Petition for writs of habeas corpus and certiorari.

Mr. A. J. Plowman for petitioner.

Mr. Solicitor-General for United States.

Mr. Justice Matthews delivered the opinion of the court.

The petitioner is in the custody of the marshal of the United States for the Territory of Dakota, imprisoned in the jail of Lawrence County, in the First Judicial District of that Territory, under sentence of death, adjudged against him by the district court for that district, to be carried into execution January 14th, 1884. That judgment was rendered upon a conviction for the murder of an Indian of the Brule Sioux band of the Sioux nation of Indians, by the name of Sin-ta-ge-le-Scka, or in English, Spotted Tail, the prisoner also being an Indian, of the same band and nation, and the homicide having occurred as alleged in the indictment, in the Indian country, within a place and district of country under the exclusive jurisdiction of the United States and within the said judicial district. The judgment was affirmed, on a writ of error, by the Supreme Court of the Territory. It is claimed on behalf of the prisoner that the crime charged against him, and of which he stands convicted, is not an offence under the laws of the United States; that the district court had no jurisdiction to try him, and that its judgment and sentence are void. He therefore prays for a writ of habeas corpus, that he may be delivered from an imprisonment which he asserts to be illegal.

The indictment is framed upon section 5339 of the Revised Statutes. That section is found in title LXX., on the subject of crimes against the United States, and in chapter three, which treats of crimes arising within the maritime and territorial jurisdiction of the United States. It provides that "every person who commits murder, . . . within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States, . . . shall suffer death."

Title XXVIII. of the Revised Statutes relates to Indians, and the sub-title of chapter four is, Government of Indian Country. It embraces many provisions regulating the subject of intercourse and trade with the Indians in the Indian country, and imposes penalties and punishments for various violations of them. Section 2142, provides for the punishment of assaults with deadly weapons and intent, by Indians upon white persons, and by white persons upon Indians; section 2143, for the case of arson, in like cases; and section 2144 provides that "the general laws of the United States defining and prescribing punishments for forgery and depredations upon the mails shall extend to the Indian country." . . .

The district courts of the Territory of Dakota are invested with the same jurisdiction in all cases arising under the laws of the United States as is vested in the circuit and district courts of the United States. Rev. Stat. §§ 1907-1910. The reservation of the Sioux Indians, lying within the exterior boundaries of the Territory of Dakota, was defined by Art. II.of the treaty concluded April 29th, 1868, 15 Stat. 635, and by § 1839 Rev. Stat. it is excepted out of and constitutes no part of that Territory. The object of this exception is stated to be to exclude the jurisdiction of any State or Territorial government over Indians, within its exterior lines, without their consent, where their rights have been reserved and remain unextinguished by treaty. But the district courts of the Territory having, by law, the jurisdiction of district and circuit courts of the United States, may, in that character, take cognizance of offences against the laws of the United States, although committed within an Indian reservation, when the latter is situate within the space which is constituted by the authority of the Territorial government the judicial district of such court. If the land reserved for the exclusive occupancy of Indians lies outside the exterior boundaries of any organized Territorial government, it would require an act of Congress to attach it to a judicial district; of which there are many instances, the latest being the act of January 6th, 1883, by which a part of the Indian Territory was attached to the District of Kansas and apart to the Northern District of Texas. 22 Stat. 400. In the present case the Sioux reservation is within the geographical limits of the Territory of Dakota, and being excepted out of it only in respect to the Territorial government, the district court of that Territory, within the geographical boundaries of whose district it lies, may exercise jurisdiction under the laws of the United States over offences made punishable by them committed within its limits. . . . 

The district, court has two distinct jurisdictions. As a Territorial court it administers the local law of the Territorial government; as invested by act of Congress with jurisdiction to administer the laws of the United States, it has all the authority of circuit and district courts; so that, in the former character, it may try a prisoner for murder committed in the Territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life, Laws of Dakota, 1833, ch. 9; and, in the other character, try another for a murder committed within the Indian reservation, under a law of the United States, which imposes, in case of conviction, the penalty of death.

Sec. 2145 of the Revised Statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary, therefore, to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description. . . .

It follows that the locus in quo of the alleged offence is within Indian country, over which, territorially, the District Court of the First Judicial District of Dakota, sitting with the authority of a Circuit Court of the United States, had jurisdiction.

But if § 2145 Rev. Stat. extends the act of Congress, § 5339, punishing murder, to the locality of the prisoner's offence, § 2146 expressly excepts from its operation "crimes committed by one Indian against the person or property of another Indian;" an exception which includes the case of the prisoner, and which, if it is effective and in force, makes his conviction illegal and void. This brings us at once to the main question of jurisdiction, deemed by Congress to be of such importance to the prisoner and the public, as to justify a special appropriation for the payment of the expenses incurred on his behalf in presenting it for decision in this proceeding to this court. 22 Stat. 624, ch. 143, March 3d, 1883.

The argument in support of the jurisdiction and conviction is, that the exception contained in § 2146 Rev. Stat. is repealed by the operation and legal effect of the treaty with the different tribes of the Sioux Indians of April 29th, 1868, 15 Stat. 635; and an act of Congress, approved February 28th, 18717, to ratify an agreement with certain bands of the Sioux Indians, &c., 19 Stat. 254. . . .

The nature and circumstances of this case strongly reinforce this rule of interpretation in its present application. It is a case involving the judgment of a court of special and limited jurisdiction, not to be assumed without clear warrant of law. It is a case of life and death. It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It 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. It is a case, too, of first impression, so far as we are advised, for, if the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in §§ 2145 and 2146 of the Revised Statutes were first enacted in § 25 of the Indian Intercourse Act of 1834, 4 Stat. 733. Prior to that, by the act of 1796, 1 Stat. 479, and the act of 1802, 2 Stat. 139, offences committed, by Indians against white persons and by white persons against Indians were specifically enumerated and defined, and those by Indians against each other were left to be dealt with by each tribe for itself, according to its local customs. The policy of the government in that respect has been uniform. As was said by Mr. Justice Miller, delivering the opinion of the court in United States v. Joseph, 94 U.S. 614, 617:

"The tribes for whom the act of 1834 was made were those semi-independent tribes whom our government has always recognized as exempt from our laws, whether within or without the limits of an organized State or Territory, and, in regard to their domestic government, left to their own rules and traditions, in whom we have recognized the capacity to make treaties, and with whom the governments, State and national, deal, with a few exceptions only, in their national or tribal character, and not as individuals."

To give to the clauses in the treaty of 1868 and the agreement of 1877 effect, so as to uphold the jurisdiction exercised in this case, would be to reverse in this instance the general policy of the government towards the Indians, as declared in many statutes and treaties, and recognized in many decisions of this court, from the beginning to the present time. 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.

It results that the First District Court of Dakota was without jurisdiction to find or try the indictment against the prisoner, that the conviction and sentence are void, and that his imprisonment is illegal.

The writs of habeas corpus and certiorari prayed for will accordingly be issued.