SEPARATE BUT UNEQUAL:
THE FEDERAL CRIMINAL JUSTICE
SYSTEM IN INDIAN COUNTRY
TROY

A.

Em*

&

CARRIE COVINGTON DOYLE**

In this Article, Troy Eid, a former United States Attorney for
the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian
country today is "separate but unequal" and violates the
Equal Protection rights of Native Americans living and
working there. That system discriminates invidiously because it categorically applies only to Native Americans and
then only to crimes arising on Indian lands. It is unequal
because it is largely unaccountable, needlessly complicated,
comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles.
This Article traces the historical foundations of criminal justice in Indian country with emphasis on the Major Crimes
Act of 1885 ("MeA') to demonstrate that Congress's decision
to extend federal jurisdiction to Indian reservations was ill* Shareholder and co-chair, American Indian Law Practice Group, Greenberg
Traurig, L.L.P., Denver; and adjunct professor of American Indian Law, University of Colorado Law School. United States Attorney for the District of Colorado,
2006-09. AB., Stanford University, 1986; J.D., University of Chicago Law
School, 1991; Law Clerk to the Honorable Edith H. Jones, Chief Judge, U.S. Court
of Appeals for the Fifth Circuit, 1991-92. This Article began as a presentation to
the University of Colorado Law Review Symposium: "The Next Great Generation
of American Indian Law Judges," on January 29, 2010. Thanks to Jim Allison,
Les Anderson, Kee Allen Begay, Diandra Benally, Steve Bloxham, Kristen Carpenter, Cynthia Carter, Chris Chaney, Sam Deloria, Louis Denetsosie, Janelle
Doughty, Michon Eben, John Echohawk, Allison Eid, Judy Evans, Matthew
Fletcher, Paul Frye, David Getches, Albert Hale, Gary Hayes, Nicki Herberle,
Ernest House, Jr., Ernest House, Sr., Sarah Krakof£, David Lester, Bernadine
Martin, Paul Nitze, Todd Norvell, Peter Ortego, Frank Pommersheim, Rebecca
Root, Viola St. Clair, Chaitna Sinha, Celene Sheppard, Gerald Skelton, Paul
Spruhan, Richard Trudell, Kim Varilek, Kevin Washburn, Jennifer Weddle,
Charles Wilkinson, Sam Winder, and Jim Zion for their insights and encouragement. The views expressed here are ours alone.
** Associate, Gutterman Griffiths PC, Littleton, Colorado. B.A Rice University,
1998; M.A in American History, University of Utah, 2004; J.D., University of Colorado Law School, 2009; Law Clerk to the Honorable John R. Webb, Colorado
Court of Appeals, 2009-10. The author thanks Troy Eid for this opportunity;
Charles Wilkinson for giving me roots and wings; the inspirational Indian law faculty at CU Law School; Alison Flint and Kim Perdue; and, ever, Ben Doyle.

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considered and meant only as a temporary expedient. Imposed by Congress with racist intentions in the late nineteenth century, that system still fails to satisfy even the minimum standards of fairness and equality that the
Constitution is commonly understood to afford to all U. S.
citizens under the Fourteenth Amendment.
A careful review of the MCA and its racist origins is long
overdue and relevant to today's debate over the future of the
federal criminal justice system in Indian country. Congress's extension of federal jurisdiction to Indian reservations was central to the federal government's forcedassimilation policy and the destruction of traditional tribal
institutions, values, and culture in the late 1800s. Yet even
as national policies toward Indians have changed dramatically in recent decades, the architecture of the federal criminal justice system in Indian country has remained stubbornly frozen in time and poses a serious obstacle to tribal
sovereignty and self-determination.
Eid and Doyle explore how this "separate but unequal" federal criminal justice system systematically discriminates
against Native American crime victims and offenders alike.
There is a constitutional imperative, they argue, to end the
federal government's role in Indian country as it currently
exists. The remedy for this lingering injustice is for the President, Congress, and Supreme Court to return to constitutional first principles.
Eid and Doyle recommend that Indian tribes and nations be
provided with far greater freedom to choose when and how to
design and run their own criminal justice systems within the
federal constitutional scheme. This includes the option of
abandoning the MCA and exiting federal criminal jurisdiction entirely for offenses that would otherwise be purely local
in nature, substituting tribal law and institutions in place of
federal command-and-control policies.
INTRODUCTION

AB the United States Supreme Court heard oral arguments
in Brown v. Board of Education, 1 Justice Robert H. Jackson
asked petitioners' counsel, Thurgood Marshall, if his clients'
challenge to state-supported school segregation would also ap-

1.

347 u.s. 483 (1954).

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ply to Native Americans. 2 Marshall said he thought so, but
"the biggest trouble with the Indians is that they just have not
had the judgment or the wherewithal to bring lawsuits."3
"Maybe you should bring some up," Justice Jackson suggested. 4
Marshall replied, "I have a full load now, Mr. Justice."5
Marshall never did bring up such a case. 6 His exchange
with Justice Jackson in Brown is all but forgotten today, along
with Jackson's description of the federal government's official
policy toward Native Americans living and working on Indian
reservations as "the segregation of the Indians."7 Brown overturned Plessy v. Ferguson,8 in which the Court had endorsed
racial discrimination against Mrican-Americans in public facilities under the so-called "separate but equal" doctrine. 9 Congress and the President went on to pass the Civil Rights ActIO
and the Voting Rights Act 11 to provide anti-discrimination enforcement tools to protect rights promised a century earlier by
the Fourteenth 12 and Fifteenth Amendments, 13 but were suppressed against Mrican-Americans in much of the country.

Transcript of Oral Argument at 17, Brown, 347 U.S. 483, (No. 101),
at
http://www.lib.umich.edu/brown-versus-board-education/oral/
Marshall&Davis.pdf.
2.

available
3.

Id.

4. Id.
5. Id.
6. Marshall later authored several foundational opinions of modern Indian
law as a Supreme Court Justice. CHARLES WILKINSON, BLOOD STRUGGLE: THE
RISE OF MODERN INDIAN NATIONS 248 (2005). See, e.g., McClanahan v. Ariz.
State Tax Comm'n, 411 U.S. 164 (1973). Although the modern tribal sovereignty
movement benefited from the momentum of the Civil Rights movement, its goal of
reversing forced assimilation was distinct from the Civil Rights goal of ending segregation. WILKINSON, supra note 6, at 129.
7. Transcript of Oral Argument at 17, Brown, 347 U.S. 483, (No. 101),
available
at
http://www.lib.umich.edu/brown-versus-board-education/oral/
Marshall&Davis.pdf. Jackson, a former U.s. attorney general, served as the chief
prosecutor in the Nuremberg trials against Nazi Germany and was no stranger to
human rights issues. See generally GAIL JARROW, ROBERT H. JACKSON: NEW
DEAL LAWYER, SUPREME COURT JUSTICE, NUREMBURG PROSECUTOR (2008).
8. 163 U.S. 537 (1896).
9. Brown, 347 U.S. at 495 (1954) ("We conclude that ... 'separate but equal'
has no place.").
10. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as
amended in scattered sections of 2 U.S. C., 28 U.S. C., and 42 U.S.C. (2006».
11. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 (codified as
amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2006».
12. U.S. CONST. amend. XlV.
13. U.S. CONST. amend. Xv.

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Brown catalyzed a Civil Rights Movement that finally exposed "separate but equal" for what it really was: separate but
unequal. Yet, more than a half-century later, the federal criminal justice system in Indian country 14 still often fails to satisfy
even the minimum standards of fairness and equality that the
Constitution is commonly understood to afford to all U.S. citizens under the Fourteenth Amendment. 1S That system is segregated because it categorically applies only to Native Americans and then only to crimes allegedly committed on Indian
lands. 16 It is unequal because it is largely unaccountable,
needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the
same crimes, especially for juveniles.
This Article traces the segregationist roots of the federal
criminal justice system in Indian country to the Plessy era of
racial and ethnic intolerance and examines how this separate
but unequal system of justice endures in Indian country today.17 Part I outlines the historical foundations of criminal
justice in Indian country with emphasis on the Major Crimes
Act ("MCA") 18 to demonstrate that Congress's decision to ex14. "Indian country" here refers to Indian lands held in trust by the U.S. government and subject to federal jurisdiction. 18 U.S.C. § 1151 (2006).
15. U.S. CaNST. amend. XIV, § 1 ("[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws."). See also Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886) ("These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a
pledge ofthe protection of equal laws.").
16. According to a July 2005 U.S. Census Bureau report, an estimated 4 million people, or 1.5 percent of the total U.S. population, list themselves as being
Native American or Alaska Native; about one-third live in Indian country. Marianne O. Nielson, Introduction to the Context of Native American Criminal Justice Involvement, in CRIMINAL JUSTICE IN NATIVE AMERICA 1, 2 (Marianne O.
Nielson and Robert A. Silverman, eds., 2009).
17. By "separate but unequal," we refer to the comparatively harsher sanctions that the federal criminal justice system systematically imposes on adult and
juvenile offenders on tribal lands subject to its jurisdiction, as compared to what
ordinarily occurs when state and local governments mete out punishments for the
same or similar offenses arising on non-tribal lands, and to the comparatively limited, less accountable, and often inferior criminal justice services that the federal
government generally provides there. This concept obviously differs in degree and
kind from what Charles Wilkinson has called "measured separatism," the policy
by which the federal government has sometimes encouraged the separate development of tribal governance and institutions to strengthen tribal selfdetermination. CHARLES WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 14
(1987).
18. Major Crimes Act, ch. 341, § 9, 23 Stat. 385 (1885) (codified as amended at
18 U.S.C. § 1153 (2006».

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tend federal jurisdiction to Indian reservations was illconsidered and meant to be a temporary expedient. A careful
review of the MCA and its racist origins is long overdue and relevant to today's discussion about the future of the federal
criminal justice system in Indian country because the extension of federal jurisdiction to Indian reservations was a key
component of assimilation.
A century later, the federal government's policies had
eventually come to encourage tribal sovereignty and selfdetermination. Yet the MCA and the federal institutions that
divested local control and accountability from the justice system in Indian country at the end of the Indian Wars remain
strikingly unchanged today. In virtually all other communities
in the United States, criminal justice is a matter of overwhelmingly local concern and redress. The federal government's
role is carefully restricted to enforcing modern day "major
crimes," such as anti-terrorism laws, international drugtrafficking operations, and large-scale criminal enterprises.
Yet, by what may well be a historical accident, the federal government's role in criminal justice in Indian country is almost
entirely unrestricted. The federal attorneys and law enforcement officers who serve these areas rarely live in their communities, are often located far from Indian reservations, lack
direct knowledge or experience with victims and defendants
living and working there, and are largely unaccountable to
their Native American constituents. The federal criminal justice system in Indian country was simply never supposed to be
a set of permanent laws and institutions. Even as national policies toward Indians changed, the architecture of that system
has remained stubbornly frozen in time and poses a serious obstacle to tribal sovereignty and self-determination.
Part II explores some of the ways that the separate but
unequal federal criminal justice system that emerged from the
MCA-and which unexpectedly persists to this daysystematically discriminates against Native American crime
victims and offenders alike. It perpetuates a degree of daily injustice that would be unthinkable to the vast majority of Americans who have little or no contact with it. Most disturbing of
all is the treatment of Native American juvenile offenders; they
are disproportionately sentenced as adults, they receive relatively longer sentences of incarceration, and they have comparatively restricted access to diversion and other programs designed to promote rehabilitation. Perversely, the only way for

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Native Americans to avoid this unjust system is to leave the
very homelands that the federal government has permanently
set aside for Indian tribes and their members.
Part III suggests that there is a constitutional imperative
to end the federal government's role in Indian country as it
currently exists. The remedy for this lingering injustice is for
the President, Congress, and Supreme Court to return to constitutional first principles. Indian tribes and nations should be
provided with greater freedom to choose how to design and run
their own criminal justice systems within the federal constitutional scheme. This includes letting Indian tribes and nations
wishing to do so to exit the MCA entirely so long as they protect defendants' federal constitutional rights on par with state
governments. It also means freeing tribes that so choose from
concurrent federal jurisdiction for what would otherwise be
purely local crimes, while retaining federal criminal laws of
general application. For those tribes that choose to retain the
MCA and concurrent federal jurisdiction on their lands, the
federal government's goal must be to ensure that Native Americans consistently receive the minimum level of civil-rights protections to which all U.S. citizens are guaranteed.

1.

THE MAJOR CRIMES ACT: FEDERAL BAND-AID TO THE
"INDIAN PROBLEM"

Plessy attests to the late nineteenth century belief that the
races were inherently different:
A statute which implies merely a legal distinction between
the white and colored races-a distinction which is founded
in the color of the two races, and which must always exist so
long as white men are distinguished from the other race by
color-has no tendency to destroy the legal equality of the
two races, or re-establish a state of involuntary servitude. 19
Not long before Plessy, in Ex parte Kan-gi-Shun-ca 20 (Crow
Dog), the Supreme Court refused to extend federal jurisdiction

19. Plessy v. Ferguson, 163 U.S. 537, 543 (1896).
20. 109 U.S. 556 (1883). Known as the" Crow Dog case," the decision uses the
defendant's Brule Sioux name rather than its English translation. The events
that gave rise to Crow Dog began in 1881 with Crow Dog murdering Spotted Tail
on the Great Sioux Reservation. White officials at the time dismissed the killing
as a quarrel between two Indians over a woman, but Red Cloud and others saw it
as an assassination of a leader who had defied Indian agents. "This was charged

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to crimes involving solely Native Americans in Indian country,
only to be overturned by Congress. But even in Crow Dog, the
Justices were less circumspect about the differences they perceived between whites and Indians:
It [federal criminal law] 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. 21
The late nineteenth century was a period of extreme violence in the history of ethnic relations in the United States.
The rise of the Ku Klux Klan and the Chinese Exclusion Act 22
are but two examples of the way that industrialization and
western expansion tended to marginalize and demonize many
ethnic and racial minorities. 23 The period was no less insidious
for the tribal members who survived disease and war only to be
removed to Indian reservations. 24
upon the Indians because an Indian did it," Red Cloud said, "but who set on the
Indian?" DEE BROWN, BURY My HEART AT WOUNDED KNEE: AN INDIAN HISTORY
OF THE AMERICAN WEST 420 (Owl Books 1991) (1971). Ironically, and as discussed in Section I(B), infra, this was the case that triggered a Congressional
backlash leading to the passage of the Major Crimes Act.
21. Crow Dog, 109 U.S. at 571.
22. Chinese Exclusion Act of 1882, ch. 60, 27 Stat. 25 (repealed 1943). See
generally, Virginia Martinez, J azmin Garcia, & Jasmine Vasquez, A Community
Under Seige: The Impact of Anti-Immigrant Hysteria on Latinos, 2 DEPAUL J.
SOC. JUST. 101, 105-06 (2008).
23. See, e.g., Nw. Austin Mun. UtiI. Dist. No.1 v. Holder, 129 S. Ct. 2504,
2521 (2009) (briefly describing the rise of Klan violence in response to the Fifteenth Amendment's enfranchisement of blacks).
24. See Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA
L. REV. 591, 632 (2009) ("Historians also increasingly identified triumph over the
Indian tribes as the formative racial and national experience of white America.").
For instance, writing in 1885-the same year Congress passed the Major Crimes
Act-former president Ulysses S. Grant defended the United States' war with
Mexico, in which he had fought as a young man. 2 ULYSSES S. GRANT, PERSONAL
MEMOIRS OF U. S. GRANT 545-46 (New York, Charles L. Webster & Co. 1885).
The Mexican War had been tied into the antebellum debate over slavery; many
prominent leaders, including former president John Quincy Adams and then little-known Congressman Abraham Lincoln, had strongly opposed it as an unconstitutional vehicle for extending slavery. See JOHN STAUFFER, GIANTS: THE
PARALLEL LIVES OF FREDERICK DOUGLASS & ABRAHAM LINCOLN 172-75 (2008).
Tellingly, Grant defends the war on the basis that it accelerated the pace by
which Indian tribes were destroyed and their members removed from the formerly

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What would later be called "federal Indian law" was dramatically altered during this same period to enable forced Indian removal, divestiture of remaining tribal lands, and continued western expansion. 25 In the mid-nineteenth century,
Indian tribes were widely acknowledged to be legally sovereign
within their own ancestral homelands. 26 Yet that virtual legal
consensus all but evaporated a few decades later as the law
was radically changed to justify forced assimilation, with Indian tribes consigned mostly to distant and geographically isolated reservations and legally transformed from nations into
"wards" of the federal government. 27 It was at the height of
this extremist era that Congress extended federal criminal jurisdiction over otherwise purely local crimes involving only Indians by enacting the MCA, in support of what had become the
final solution to the "Indian problem": forced assimilation. 28
This Part begins with an overview of the General Allotment Act, which is generally recognized as the key vehicle for
assimilation. 29 Next, it details the legislative history behind
and passage of the MCA in order to demonstrate that this law,
which has governed Indian country crime since 1885 and
served as the foundation for other federal institution-building
there, was intended to be temporary. If the MCA established
federal jurisdiction over criminal law in Indian country, then
U.S. v. Kagama, addressed in Section C, ensured the federal
government's predominance there even as the Court struggled
to explain the constitutionality of its presence. Finally, to
round out the foundational history of criminal justice in Indian
country, Section D gives an overview of the earliest efforts to
bring federal notions of non-Indian law and order to the reservations, and Section E sketches relevant developments in the
twentieth century.

Mexican lands that had been ceded to the United States in 1848. 2 GRANT, supra
note 24, at 551. "It is probable," Grant concludes, "that the Indians would have
had control of these lands for a century yet but for the war. We must conclude,
therefore, that wars are not always evils unmixed with some good." Id.
25. See, e.g., Berger, supra note 24, at 628-29.
26. See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559-61 (1832); Crow
Dog, 109 U.S. at 571.
27. United States v. Kagama, 118 U.S. 375, 383-84 (1886).
28. See, e.g., Berger, supra note 24, at 629.
29. See FRANK POMMERSHEIM, BROKEN LANDSCAPE: INDIANS, INDIAN TRIBES,
AND THE CONSTITUTION 136 (2009); see generally Judith V. Royster, The Legacy of
Allotment, 27 ARIz. ST. L.J. 1, 10 (1995).

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The Backdrop of Allotment

Congress enacted the MCA,30 which extended federal criminal jurisdiction to crimes committed by Native Americans on
Indian reservations, at the same time it was embracing the socalled "allotment program" that would guide federal policy toward Indian tribes and their members until the New DeaPl
The legal architecture of the federal criminal justice system in
Indian country is rooted in both the MCA and the federal government's overarching policy of forced assimilation, which is
epitomized by the General Allotment Act.
Congress passed the General Allotment Act in 1887, which,
together with individual allotment acts that applied to individual tribes, impacted nearly every federally recognized Indian
tribe in the United States. 32 The Act generally established a
process whereby federal Indian trust land was to be divided into individual homestead parcels and converted into private (fee
simple) property that could be sold after twenty-five years, at
which time Indian families received a patent to the land and
could become U.S. citizens. 33 During this time, Native Americans were to be assimilated as farmers and ranchers and converted to Christianity, primarily through federally supported
missionaries and boarding schools. 34
Rather than establish a system of individual land ownership within the reservation system, Congress intended land
ownership by allotment to be the means to phase out and elim-

30.

18 U.S.C. § 1153 (2006).
31. "The basic idea of the Allotment Act was to make the Indian conform to
the social and economic structure of rural America by vesting him with private
property." VINE DELORIA, JR., CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO 46 (1969). At the time the original act was passed, Indian tribes controlled
nearly 138 million acres, almost 90 million acres of which was subsequently lost.
POMMERSHEIM, supra note 29, at 130. Almost half the remaining 48 million acres
consisted of desert lands. JOHN R. WUNDER, "RETAINED BY THE PEOPLE": A
HISTORY OF AMERICAN INDIANS AND THE BILL OF RIGHTS 33 (1994). Professor
Wunder chronicles the often tortured implementation of the General Allotment
Act and what he calls the "forced acculturation" of Native Americans, a policy finally halted by the so-called "Indian New Deal," specifically the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 46179 (2006). Id. at 31-78.
32. Indian General Allotment (Dawes) Act, 24 Stat. 388 (1887); see also DAVID
H. GETCHES, CHARLES F. WILKINSON & ROBERT A. WILLIAMS, CASES AND
MATERIALS ON FEDERAL INDIAN LAW 165--66 (5th ed. 2005).
33. Royster, supra note 29, at 10.
34. See id. at 9; see also WILKINSON, supra note 17, at 20-21.

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inate the reservation system altogether. 35 In 1896, the Supreme Court most clearly articulated the ultimate goal of allotment in Draper v. United States: "The [General Allotment
Act of 1887] contemplated the gradual extinction of Indian reservations and Indian titles by the allotment of such lands to
the Indians in severalty."36 Allotment, the Court said, was intended to bring individual Indians under state jurisdiction
through ownership of a fee patent. 37 As section six of the General Allotment Act of 1887 stated, once individual Native
Americans received their land patents, they would "have the
benefit of and be subject to the laws, both civil and criminal, of
the state or territory in which they may reside."38
Allotment was a tribal land divestiture system in that the
remaining excess or "surplus" lands from the Indian reservations that had previously been held in trust for tribes were
opened to non-Indian settlement. 39 In this way, trust lands
originally set aside permanently by the federal government for
the benefit of Indian tribes and their members were expected to
be "pulverized," in Theodore Roosevelt's appropriate phrase,40
and sold as private property, primarily to non-Indian homesteaders and land speculators. Roughly 65 percent of Indian
lands passed out of Native American hands between 1887 and
1934. 41

B.

Passage of the Major Crimes Act

The MCA, an ambitious title for the last section of the annual appropriations bill for 1885,42 was the product of the same
35. "[A]dvocates of the [allotment] policy believed that individual ownership
of property would turn the Indians from a savage, primitive, tribal way of life to a
settled, agrarian, and civilized one. Assimilation was viewed as both humanitarian and inevitable." Royster, supra note 29, at 9.
36. 164 U.S. 240, 246 (1896).
37.

Id.

38. Id. (quoting the Indian General Allotment (Dawes) Act, § 6, 24 Stat. 388
(1887».
39. G. William Rice, The Indian Reorganization Act, the Declaration on the

Rights of Indigenous Peoples, and a Proposed Carcieri "Fix'~' Updating the Trust
Land Acquisition Process, 45 IDAHO L. REV. 575, 576-77 (2009).

40. President Theodore Roosevelt described the federal government's allotment policy as "a mighty pulverizing engine to break up the tribal mass."
POMMERSHEIM, supra note 29, at 131 (quoting President Theodore Roosevelt,
First Annual Message to Congress (Dec. 3, 1901».
41. POMMERSHEIM, supra note 29, at 130.
42. The full language of what would come to be known as the MCAAppropriations Act for Indian Department:

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lawmaker whose name was given to the General Allotment Act,
Senator Henry Dawes of Massachusetts. 43 The MCA was
Dawes's response to the Supreme Court's decision in the Crow
Dog case, in which the Supreme Court upheld tribal criminal
jurisdiction where one tribal member murdered another. 44 To
an extent breathtaking even for the time, Dawes, chair of the
Senate Committee on Indian Mfairs, almost single-handedly
spearheaded the passage of the MCA, manipulating Senate and
House rules to get it enacted into law quickly without a single
Congressional hearing by an authorizing committee. 45 The
MCA extended federal jurisdiction over seven major crimes in
Indian country 46 and thereby effectively removed criminal jurisdiction from all tribal courts except those of the Five Civilized Tribes. 47
To say that the MCA was hastily written, drafted, and reviewed would be a profound understatement. It is not clear
[A]ll 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
an Indian reservation, shall be subject therefor to the laws of such 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.
Ch. 341, § 9, 23 Stat. 385 (1885) (codified as amended at 18 U.S.C. § 1153 (2006».
43. Honorable Ross O. Swimmer, Modern Tribal Government: Social and
Economic Opportunities and Realities, 7 ST. THOMAS L. REV. 479, 484 n.29 (1995).
44. Ex parte Kan-gi-Shun-ca (Crow Dog), 109 U.S. 556, 571 (1883).
45. See, e.g., infra notes 60, 62, 70.
46. The modern MCA covers 15 major crimes. 18 U.S.C. §1153(a) (2006)
("[Njamely, murder, manslaughter, kidnapping, maiming, a felony under chapter
109A, incest, assault with intent to commit murder, assault with a dangerous
weapon, assault resulting in serious bodily injury (as defined in section 1365 of
this title), an assault against an individual who has not attained the age of 16
years, felony child abuse or neglect, arson, burglary, robbery, and a felony under
section 661 of this title within the Indian country, shall be subject to the same law
and penalties as all other persons committing any of the above offenses, within
the exclusive jurisdiction of the United States.").
47. 16 CONGo REC. 2385-86 (1885) (the proposed section that would have
brought the Five Civilized Tribes under the jurisdiction of the United States District Court for the Western District of Arkansas was removed by the Senate).

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from the limited legislative record that Congress intended for
Indians to be brought under exclusive federal rather than concurrent federal and state jurisdiction. Dawes and his colleagues were focused on reducing the cost of the Indian reservation system to the federal government and opening new
lands for white settlement. 48 Given their overarching focus on
extending and accelerating the allotment process, they almost
certainly did not intend to establish a long-term federal presence in Indian country, let alone a permanent system of federal
criminal jurisdiction and institutions. 49 On the contrary,
Dawes and his supporters were bullish on the potential of allotment to, in the jargon of the era, "kill the Indian to save the
man,"50 and to do so quickly. For some, the whole process of
assimilation-by-allotment would be completed in only a matter
of years, not decades. As one of Dawes's supporters put it:
I believe that in the course of ten or twelve years the Congress of the United States would not be called upon to sit in
Committee of the Whole for the purpose of considering a bill
for the support of any Indian tribe. I believe that Indians
would become self-supporting. 51

48.

See infra notes 74-76.
49. The text of the MCA itself reflects the inherent racism of the era in which
it was designed as a temporary expedient. By insisting on striking a provision
that would have brought the Five Civilized Tribes under federal jurisdiction, Congress was effectively distinguishing between tribes that were ready to handle
their own jurisdiction-the "civilized" tribes-and those that were not yet ready.
See 16 CONGo REC. 2385-86 (1885). The key word here is "yet"; through assimilation, the logic went, Indians would become civilized. Once civilized, the logic continued, Indian people would either come under state jurisdiction (thanks to allotment) or tribes would organize into territories, and then into states. In this way,
the federal role would be limited and short-term.
50. The phrase was popularized by Captain Richard H. Pratt, who, with federal support in 1879, founded the Carlisle Indian Boarding School at Carlisle Barracks, Pennsylvania. As Captain Pratt explained in an 1892 speech:
A great general has said that the only good Indian is a dead one, and
that high sanction of his destruction has been an enormous factor in
promoting Indian massacres. In a sense, I agree with the sentiment, but
only in this: that all the Indian there is in the race should be dead. Kill
the Indian in him, and save the man.
Richard H. Pratt, The Advantages of Mingling Indians with Whites, in
AMERICANIZING THE AMERICAN INDIANS: WRITINGS BY THE "FRIENDS OF THE
INDIAN" 1880-1900, at 260-61 (Francis Paul Prucha ed., 1973).
51. 16 CONGo REC. 863 (1885) (statement of Rep. Ellis). Ellis proposed a
Northwest Indian Territory, which would go through the statehood process and
then be admitted as a state on equal footing. Id. at 895 (statement of Rep. Rogers:
"Sir, I believe the Indian people would consent, if a fair expression could be had,
to an equal division of their lands among them and to the establishment of a Ter-

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Importantly, what became the MCA was an appropriations
rider-a piece of substantive or "authorizing" legislation that
was simply appended to a Congressional funding bill, and
which never received a public hearing by the appropriate authorizing committee. As early as 1882, a bill "to extend the jurisdiction of the district and circuit courts of the United States,
for the punishment of crimes on Indian reservations within the
limits of any State or organized Territory," had been introduced
in the House of Representatives. 52 The House did not include
the provision in its first draft of the appropriations bill for
1885,53 but Representative Byron M. Cutcheon of Michigan
added the provision as an amendment on January 22, 1885. 54
A few congressmen objected to the measure being introduced as
an appropriations rider,55 but they were assured that the
House had passed similar legislation (also as an appropriations
rider) the year before that the Senate had rejected only because
it also included misdemeanors. 56 The House then passed the
bill and sent it to the Senate. 57
The Senate's discussion of the bill went quickly to the problem of appropriations riders generally, although its chief concern was with addressing settlers' claims for federal compensation for Indian "depradations" rather than concerns about
protecting tribes or their members. 58 The Senate's procedural
ritorial government.... Going hand in hand with this is citizenship, courts, and
laws. It is coming to this. We know it. They know it. It is in their interest to accept the situation. It is our duty to protect them by humane laws.").
52. REPORT OF THE SECRETARY OF THE INTERIOR, H.R. Ex. Doc. 47-1, pt. 5, at
15 (1882) (quoting H.R. 755, introduced by Rep. Willits).
53. See 16 CONGo REC. 863 (1885).
54. Id. at 934-36 (introduction and discussion of "Sec. 11", the major crimes
provision amendment).
55. Id. at 935 (statement of Rep. Holman: "I regret that this legislation comes
year after year upon appropriation bills, without taking the voice of a committee
who are especially familiar with the subject."); id. at 934 (statement of Rep. Rogers: "This amendment is so long and the subject so important, that unless I can
have an opportunity to investigate the proposition I must insist on the point of
order."); id. at 936 (statement of Rep. Warner: "[I]n view of the large number of
amendments that are proposed it seems to me we have proof enough that this
whole question should go to the Committee on Indian Mfairs and be reported from
that committee. Some of these amendments are evidently crude, being suggested
on the spur of the moment.").
56. Id. at 935 (statement of Rep. Budd).
57. Id. at 938 (passage of bill).
58. Id. at 1716 (with regard to a rider including a limited number of settlers
seeking depredation claims against the federal government, Sen. Miller introduced the larger concern about appropriation riders: "[T]he action of the committee on this clause brings up the whole question of what the Senate is to do in respect of what is termed general legislation in this Indian appropriation bill."); id.

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rules limited it to either approving or striking appropriations
riders, but not amending them, so the major crimes rider was
struck out of the Senate bill on February 16, 1885. 59 Senator
Dawes charted a new path through Senate procedure by effectively proposing an amendment to the House's major crimes
appropriations rider. 60 He did this by proposing an amendment to the House's amendment-to get it into the Congressional Record-and then declaring that he would vote against
his own amendment because it was against procedure. 61 The
senator himself advocated for the measure on the Senate floor,
and he in fact was able to promote and amend the legislationhis own bill-despite Senate rules preventing him from doing
either. 62
AB the Congressional session was coming to a close, the
two houses agreed to compromise legislation (still in the form
of appropriation riders) on March 3, 1885. 63 The final version
of the MCA contained the language proposed by Dawes. Jurisdiction over Indian crimes was given to territories or the Unitat 1717 (statement of Sen. Plumb: "There is a rule of the Senate that no legislation shall appear upon the appropriation bills, and that has been properly construed to mean that the Senate can not amend the House legislation sent to us on
such bills. . .. That enforces what I have said about the improvidence of inserting
measures of this kind or claims of this character on an appropriation bill; where
they have not undergone such scrutiny no careful person can say whether more or
less may not be necessary."). Here, Sen. Plumb was speaking about depredations
claims, but the concern of a "careful person" would certainly also extend to legislation added to the appropriation bill that had nothing whatever to do with appropriations or money generally.
59. Id. at 1748-50; see also id. at 2385 (statement of Sen. Dawes, recapping
the progress of the legislation on March 2, 1885: "[The bill] came over from the
House with the ordinary appropriations for the Indian service loaded with a large
amount of what are called depredation claims and burdened with a large amount
also of general legislation upon important matters. The Senate at that time sustained the Committee on Appropriations in stripping the bill of everything except
what pertained to the appropriations.").
60. Id. at 2385-86 (statement of Sen. Plumb regarding Sen. Dawes's experience).
61. Id. at 2385.
62. Id. (statement of Sen. Dawes) (the Senator advocated for the first part of
the major crimes provision, but insisted that the second part of the provision,
which would override the established jurisdiction of the Five Civilized Tribes with
that of the U.s., was unjust and against treaty agreements.).
63. Id. at 2466, 2533; see also id. at 2387 (statement of Sen. Beck regarding
the concern over the inevitably rushed nature of passing appropriations legislation: "Five of the most important appropriation bills that have come over to us
have come laden down, some of them, with legislation, within the last week of the
session. We come at once to look at them; we can not examine them without sitting up all night, as our Committee on Appropriations has had to do for a week
past.").

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ed States and taken away from states and tribes, and the Five
Civilized Tribes were not mentioned and so managed to maintain their jurisdiction. 64 A third section holding that Indians in
civil trials "shall not be rejected as witnesses on account of race
or nation" was inexplicably removed as well. 65 The final Act
imposed exclusive federal jurisdiction on Indians within reservations, although there were two different schemes: Indians on
reservations within Territories would be subject to the territoriallaw, and Indians on reservations in states would be subject to federallaw. 66
A close read of the MCA's legislative history is warranted
for two reasons. First, it is crucial to understand the policy
reasons for a law that continues to govern federal criminal jurisdiction in Indian country today, and these reasons can really
only be found in the legislative record because the measure was
passed as an appropriations rider. Second, the wide-ranging
discussion that members of both houses engaged in regarding
the 1885 Indian appropriations bill demonstrates that the general consensus in Congress was that, thanks to assimilation-byallotment, the federal government would shortly be getting out
of the Indian business.
Representative Cutcheon introduced what became the
MCA to the appropriations bill in the House on January 22,
1885. 67 Cutcheon described the situation of revenge on Indian
reservations as an emergency situation: "I would not offer this
amendment at the present time and in connection with this
appropriation bill if I thought there existed the least chance or

64. Id. at 2385. Dawes seemed to regret the removal of state concurrent jurisdiction, but not enough to change the language: "[The MCA is an] important
provision and one which the demands of the Indian service are very urgent for;
and yet the provision, which is section 11 of this House bill, proposes in the first
place-unfortunately in its phraseology, not in its intent-to take away from the
State courts ... jurisdiction over the commission of an offense ...." Id.
65. The third section was included when the major crimes rider was first introduced in the House, id. at 934, but it was gone without any discussion in
Dawes's proposed amendment, id. at 2385. Dawes offers no explanation for the
third section's removal, and no one questions its absence. Time seemed to be of
the essence by March because the congressional session was nearing an end, and
all parties seemed much more interested in Dawes's unique procedural wranglings than in protecting the right of Native Americans to serve as witnesses in
civil trials.
66. Id. at 935 (statement of Rep. Cutcheon that this had been the Secretary of
the Interior's suggestion). Additionally, Senator Dawes said that there was never
the intent to take jurisdiction away from state courts, although the wording of the
"amendment" fails to make jurisdiction clear. Id. at 2385.
67. Id. at 934.

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opportunity of its becoming law in any other way."68 He continued:
Under our present law there is no penalty that can be inflicted except according to the custom of the tribe, which is
simply that the 'blood avenger'-that is, the next of kin to
the person murdered-shall pursue the one who has been
guilty of the crime and commit a new murder upon him....
[T]here is now no law to punish the offense except, as I have
said, the law of the tribe, which is just no law at all. 69

Senator Dawes described public support for the rapid exertion of either federal or state jurisdiction over crimes on Indian
reservations: "The [MCA] attracted attention in the other body
and throughout the country as one of vital importance .... [It
is] a very important provision and one which the demands of
the Indian service are very urgent for."70
Although Cutcheon's rider was rushed through as part of
what amounted to a last-minute appropriations bill, Senator
Dawes and his supporters were able to make two interesting
changes. First, the amendment was modified so as to preserve
concurrent jurisdiction with the federally funded Indian Police
and Bureau of Indian Mfairs ("BIA") Courts of Indian Offenses,
used by many Indian agents to enforce law and order on reservations. 71 Second, reservation crimes were assigned to federal,
rather than state or territorial, jurisdiction. n It is unclear
when or why this decision was made, but what seems unmistakable is that only a relative handful of lawmakers-those involved in the appropriations process itself-----eould have even
been aware of it. This is because the Secretary of the Interior
had asked for state or territorial jurisdiction but not federal jurisdiction:
[I]t will hardly do to leave the punishment of the crime of
murder to a tribunal that exists only by the consent of the
68.

Id.

69. Id.
70. Id. at 2385 (statement of Sen. Dawes).
71. Id. at 934 (statement of Rep. Budd: "I desire to suggest another modification of the amendment-to strike out the words 'and not otherwise.' The effect of
this modification will be to give the courts of the United States concurrent jurisdiction with the Indian courts in the Indian country. But if these words be not
struck out, all jurisdiction of these offenses will be taken from the existing tribunals ofthe Indian country."). See also Section D, infra.
n. Major Crimes Act, ch. 341, § 9, 23 Stat. 385 (1885) (codified as amended at
18 U.S.CA § 1153 (2006».

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Indians of the reservation.... The laws of the State or Territory wherein the reservation is situated ought to be extended over the reservation, and the Indians should be
compelled to obey such laws and be allowed to proclaim the
protection thereof. 73
There is apparently no evidence in the legislative history
to suggest that anyone in Congress disputed the Secretary of
Interior's position, and yet the MCA emerged as an appropriations rider doing just the opposite. We may never know if this
was intentional or accidental-the result of sloppy drafting and
last-minute changes. 74
What is known is that the federal government was more
keenly interested in extricating itself from its responsibility to
Indian tribes than in creating a permanent role in Indian country. To begin with, the Secretary of the Interior had recommended that the states and territories be given jurisdiction
over Indians on reservations; nowhere did he advocate for federal jurisdiction. 75 Some representatives proposed relocating
remaining Indian tribes to a second "Indian Territory" (pre-

73. 16 CONGo REC. 935 (1885) (statement of Rep. Cutcheon, quoting the Secretary of the Interior).
74. Although the legislative history does not contain a clear explanation or
articulation of Congress's rationale for passing the Major Crimes Act, an exchange
in the House of Representatives gives some color to the realities of Congress's efforts to "civilize" the Indians:
Mr. Hiscock. I would like to inquire of the gentleman from Michigan
if he believes that all of these Indian tribes are in such a condition of civilization as that they should be put under the criminal law?
Mr. Cutcheon. I think if they are not in that condition they will be civilized a great deal sooner by being put under such laws and taught to
regard life and the personal property of others.
Mr. Budd. This provision is as much for the benefit of the Indians as
it is for the whites; because now, as there is no law to punish for Indian
depredations, the bordermen take the law into their own hands, which
would not be the case if such provision as this was enacted into law.
Mr. Hiscock. That may all be true; but when we bring in a bill here
year after year appropriating many millions of dollars to support and
care for these Indians, and treat them as irresponsible persons, it seems
to me that policy is not in the line of the policy indicated by this amendment, which proposes to extend to them the harsh provisions of the criminallaw.
Mr. Budd. We would like to change the policy of the Government in
that respect.
Mr. Cutcheon. We want to change the law a little in the direction of
law and order. . .. Yes, and the civilization of the Indians.
Id. at 936.
75. Id. at 935.

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sumably in the Dakotas) and that those territories be allowed
to enter the union on equal footing once they met the requirements for statehood. 76 In this way, tribes would pass from territorial to state jurisdiction for both criminal and civil matters.
The legislative history demonstrates that many congressmen believed that the reduction of the tribal land base and assimilation of tribal members rendered legislation of tribes a
short-term concern. As one representative put it:
We are upholding these rotten [tribal] governments there
under the pretense of civilizing the Indians. We justify our
conduct by clinging to treaties that have served their purpose, and were never intended as anything but temporary
expedients.... We knew by past history that in the march
of civilization these Indian governments must give way. 77

While Congress's reasons for choosing federal as opposed
to territorial or state jurisdiction were unclear, its conviction
that Indian tribes would eventually cease to exist as sovereign
nations is unmistakable and was widely held at the time. This,
too, is consistent with the Crow Dog decision that originally
upheld tribal jurisdiction from federal intrusion:
[Indians] were nevertheless to be subject to the laws of the
United States ... as a dependent community who were in a
state of pupilage, advancing from the condition of a savage
tribe to that of a people who, through the discipline of labor
and by education, it was hoped might become a selfsupporting and self-governed society. 78

The language of the MCA and its legislative history demonstrate that the 1885 Congress did not anticipate that it
would be establishing the federal criminal justice scheme that
Native Americans would endure well into the twenty-first century. The assimilation and allotment policies offered the hope
that the federal government would be able to get out from under treaty obligations within, at most, a couple of decades. Se76.
77.

Id. at 863.
Id. at 895 (statement of Rep. Rogers). In contrast to this view, Represent-

ative Keifer was the rare Congressional voice that highlighted the continuing injustice done to the Indians: "There is no time here, it seems, for anybody to say a
word in behalf of these tribes of people who have no voice in the Congress of the
United States and yet are being continually legislated about and to their great
injury." Id. (statement of Rep. Keifer).
78. Ex parte Kan-gi-Shun-ca (Crow Dog), 109 U.S. 556, 568-69 (1883).

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condly, Congress's protection of the Five Civilized Tribes' jurisdiction demonstrated that policymakers distinguished between
tribes that were ready to accept jurisdictional responsibility
and those that were not. Using the language of the time, it appears Congress seemed willing to hand jurisdiction over to tribes who had proven some measure of "civilization." At most,
the underlying assumption of Senator Dawes and his legislative allies was that the federal government would simply transfer its criminal justice responsibilities quickly to newly created
states, counties, and municipalities as the General Allotment
Act converted Indian trust lands out of federal jurisdiction and
into private property.

C.

Constitutional Contortions and the Dubious Roots of
Plenary Power

The MCA's test case, United States v. Kagama,79 is most
famous for announcing Congress's plenary power over tribal
sovereignty. 80 The main constitutional question in Kagama
was whether the MCA could extend federal jurisdiction to Indians on reservations in states and, in so doing, restrict states'
rights to self-government. 81 The Court easily answered this
question, not by reference to the Constitution, but the status
quo: "Congress has done this, and can do it, with regard to all
offences relating to matters to which the Federal authority extends."82
In Crow Dog, the Supreme Court had balked at the idea of
such an unprecedented federal intrusion on tribal sovereignty.
But, as passage of the MCA illustrates, Congress practiced no
such restraint. 83 The Kagama Court was then forced to find a
valid constitutional reason-or indeed, any basis-to uphold
the MCA, ultimately rejecting the Indian Commerce Clause of
Article I of the Constitution. 84 Rather than grounding this ex79.

80.

118 U.S. 375 (1886).
See generally VINE DELORIA, JR. & DAVID E. WILKINS, TRIBES, TREATIES,

AND CONSTITUTIONAL TRIBULATIONS 76-79 (1999).
81. Kagama, 118 U.S. at 383.

82.
83.

Id.
See, e.g., supra notes 64, 66.
84. U.S. CONST. art. I, § 8, cl. 3 (giving Congress the power" [t]o regulate
Commerce with foreign Nations ... and with the Indian Tribes"); see generally
WILKINSON, supra note 17, at 12 n.27. In rejecting the Indian Commerce Clause,
the Court frankly observed:
[W]e think it would be a very strained construction of [the Indian commerce] clause, that a system of criminal laws for Indians living peacea-

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pansion of federal authority over Indian affairs on the Constitution, the Court substituted the status quo for legal analysis:
The power of the General Government over these remnants
of a race once powerful, now weak and diminished in numbers' is necessary to their protection, as well as to the safety
of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical
limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. 85
This was an entirely new concept in American law: Congress's so-called "plenary power" over Indian affairs, which was
essentially an unrestricted license to assimilate Native Americans and legally take away their lands despite the solemn assurances otherwise in treaties and earlier court decisions. 86
This remains a dubious legal proposition for a country whose
government was based on constitutionally limited powers.
Congress's plenary power over Indian affairs was tethered not
to the Constitution, but to an amorphous federal trust responsibility that was supposed to act as a shield to protect tribes
and their members. 87 Not surprisingly, that shield was soon
transformed, in Frank Pommersheim's words, into "a destructive sword with which to carve up and dispose of the tribal land
estate." 88

bly in their reservations ... was authorized by the grant of power to regulate commerce with the Indian tribes .... [Or] to see, in either of these
clauses of the constitution and its amendments, any delegation of 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.
Kagama, 118 U.S. at 378-79.
85. Kagama, 118 U.S. at 384-85.
86. See generally WILKINSON, supra note 17, at 78 (explaining that Kagama
and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), "expostulated on the untrammeled, 'plenary' nature of federal constitutional power over Indian affairs.").
87. POMMERSHEIM, supra note 29, at 138-39.
88. Id. (analyzing Lone Wolf, 187 U.S. at 567). For an enlightening discussion
of Lone Wolf and the unconstitutional roots of the plenary power doctrine, see
WALTER R. ECHO-HAWK, IN THE COURTS OF THE CONQUEROR: THE 10 WORST
INDIAN LAW CASES EVER DECIDED 161-86 (2010). The doctrine, Echo-Hawk observes,
was seemingly plucked out of thin air by the Supreme Court against the
backdrop of federal guardianship of a dependent, supposedly inferior
race of people-a dubious basis upon which to sanction the rule of Native
people by unlimited power, a despotic power aimed at no other Ameri-

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Kagama also marks a crucial shift in the federal government's role in Indian country. In reasoning that the murder of
one Indian by another on a reservation was entirely outside the
purview of their state of residence, the Court explained that
such a crime had no effect on the "operation of State laws upon
white people found there."89 The tension that had grown between states and tribes by this time was working in the background of the decision: "Because of the local ill feeling, the
people of the States where they are found are often their deadliest enemies."90
Hence, the Kagama Court declared that the Indians "owe
no allegiance to the States, and receive from them no protection."91 Perhaps this was true: settlers interested in farmable
land and extractable minerals were certainly no friends of the
Indians, and territories seeking statehood needed the Indians
out and the settlers in. 92 However, by declaring Indians entirely under the protection of the federal government, Kagama had
also released states from legal responsibility to Indians, and established the precedent of exclusive (albeit begrudging) federal
jurisdiction over Indians that continues today.93
cans in U.S. history.

Id. at 163. Echo-Hawk's analysis reveals that Lone Wolf, like Kagama, has no basis in the Constitution:
Writing for the unanimous Court, Justice Edward Douglas-White explained that Congress possesses paramount power over Indian tribes
and their property because it is their guardian. Strangely, this plenary
power is not found in the Constitution, but was implied by the Court
from the trusteeship doctrine. The Court declared that Congress's plenary political power over Indians is absolute-that is, beyond the rule of
law-because it is not subject to judicial review, and it includes the raw
power to abrogate treaties. The sole check on that unlimited power was
a bare presumption that Congress will exercise it in "perfect good faith."
Id. (quoting Lone Wolf, 187 U.S. at 568).
89. Kagama, 118 U.S. at 383.
90. Id. at 384.
91. Id.
92. See, e.g., HELEN JACKSON, A CENTURY OF DISHONOR: A SKETCH OF THE
UNITED STATES GOVERNMENT'S DEALINGS WITH SOME OF THE INDIAN TRIBES

343-58 (Little, Brown, & Co. 1903) (describing the Sand Creek Massacre and reprinting a letter to the editor of the New York Tribune by William Byers stating
that "Sand Creek saved Colorado").
93. It has even been expansively suggested that Kagama marks the moment
at which, in regard to Indian tribes, federal power triumphed over states' rights:
Thus, the most important jurisdictional result of Crow Dog . .. was implicitly incorporated into Kagama to give the tribes protection against
the states. This interpretation, coupled with the plenary power doctrine,
greatly strengthened federal jurisdiction over the Indian tribes. This
was the first time since Worcester that the Court had acknowledged that

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D. Federalization of Criminal Justice in Indian Country
Takes Shape
In the wake of the MCA and Kagama, the federal government's presence in Indian country subverted and eventually
supplanted tribal laws and institutions dealing with what had
traditionally been considered community or family matters.
The end of the Indian treaty-making 94 during this era coincided with the federal takeover of law and order on Indian reservations in the years immediately prior to and following Kagama.
Treaties with the federal government had often
recognized tribes' inherent ability to resolve local disputes and
address infractions of traditional law and custom, but in a constitutionally suspect move, Congress in 1871-legislating on
yet another appropriations rider-abolished the President's
power to make treaties with Indian nations. 95 Commissioner of
Indian Mfairs Ely Parker had suggested a primary rationale
behind ending the treaty-making power in 1869: "[B]ecause
treaties have been made with them, ... they have been falsely
impressed with the notion of national independence. It is time
that this idea should be dispelled and the government cease the
cruel farce of thus dealing with its helpless and ignorant
wards."96 The end of Indian treaty-making, which presidents
beginning with George Washington had always understood to
there was a serious conflict between the tribes and the states that required federal intervention.
SIDNEY L. HARRING, CROW DoG's CASE: AMERICAN INDIAN SOVEREIGNTY, TRIBAL
LAW, AND UNITED STATES LAW IN THE NINETEENTH CENTURY 149 (1994).
94. U.S. CONST. art. II, § 2, cl. 2 ("[The President] ... shall have Power, by
and with the Advice and Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur").
95. See Kagama, 118 U.S. at 382 (quoting Act of Mar. 3, 1871, ch. 120, § 1, 16
Stat. 544, 566 (codified as amended at 25 U.S.C. § 71 (2006», where Congress
ended the President's treaty-making power: "No Indian nation or tribe, within the
territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty
...."). Before Congress ended Indian treaty-making, more than 380 treaties were
negotiated with tribes. CHARLES WILKINSON, INDIAN TRIBES AS SOVEREIGN
GOVERNMENTS 91 (2d ed. 2004). In his concurrence in United States v. Lara, Justice Clarence Thomas argues that the treaty-making power is an executive rather
than legislative function located in Article II, Section 2, Clause 2, which enumerates the president's powers and could not be unconstitutionally delegated to
Congress by statute in 1871. 541 U.S. 193, 225-26 (2004) (Thomas, J., concurring).
96. DIV. OF LAW ENFORCEMENT SERVS., BUREAU OF INDIAN AFFAIRS, INDIAN
LAW ENFORCEMENT HISTORY 2 (1975) (quoting Ely S. Parker, Comm'r of Indian
Mfairs in ANNUAL REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS 6 (1869».

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be required by the Constitution,97 helped set the stage for the
Court's announcement in Kagama that Congress could exercise
constitutionally unfettered power over Indian affairs because it
was already doing so.98
The federal government's foray into Indian country criminal justice expanded rapidly as the military occupation of many
tribal lands began to recede. Eileen Luna-Firebaugh has found
that "[b]y 1880, two-thirds of the reservations in the United
States had Indian police forces under the auspices of the federal government."99 A decade later, federally supported Indian
police were established on nearly every reservation, reporting
directly to the Indian agents who controlled them. 100
Meanwhile, the federal Office of Indian Mfairs, which
would later become the BIA,101 gained expansive new power
over Native Americans living on reservations when the Courts
of Indian Offenses were created in 1883. 102 These courts were
established administratively in response to Secretary of the Interior Henry Teller's belief that "[c]ivilization and savagery
cannot dwell together." 103 In calling for the establishment of
the Courts of Indian Offenses, Secretary Teller explained that

97. Washington, who had presided over the Constitutional Convention in
1787, set the precedent by insisting that the 1784 Fort Harmer Treaty with the
Six Nations be formally ratified in the same manner as treaties with European
nations. WILKINSON, supra note 95, at 93.
98. 118 U.S. at 384-85.
99. Eileen Luna-Firebaugh, More than Just a Red Light in Your Rearview
Mirror, in CRIMINAL JUSTICE IN NATIVE AMERICA, supra note 16, at 134, 136.
There were 900 federally authorized Indian police on reservations that year. Id.
at 138. Individual Indian agents had begun to establish Indian police forces as
early as 1869. See, e.g., DIV. OF LAW ENFORCEMENT SERVS., BUREAU OF INDIAN
AFFAIRS, supra note 96, at 2 (quoting ANNUAL REPORT OF THE COMMISSIONER OF
INDIAN AFFAIRS 356 (1869) (describing the first Indian police force, established by
Agent Thomas Lightfoot of the Iowa and Sac and Fox of Nebraska agency in
1869». However, Congressional appropriations directed to Indian police were not
approved for another decade. Id. at 6-7 (describing the San Carlos Apache police
forces that helped to peaceably arrest Geronimo).
100. Luna-Firebaugh, supra note 99, at 137.
101. The department was not officially renamed the Bureau of Indian Affairs
until 1947. FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES
GOVERNMENT AND THE AMERICAN INDIANS 1227-29 (1984).
102. See HARRING, supra note 93, at 175 (discussing the "near-absolute administrative powers" of the BIA's Indian Police and Courts of Indian Offenses: "These
were 'police' and 'courts' in name only. They could claim no legal status under either U.S. or tribal law. Rather, they were designed to perform important social
control functions to force assimilation of the tribes under the authority of the BIA,
through its Indian agents.").
103. REPORT OF THE SECRETARY OF THE INTERIOR, H.R. Ex. Doc. No. 48-1, pt.
5, at III (1883).

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"[i]f it is the purpose of the Government to civilize the Indians,
they must be compelled to desist from the savage and barbarous practices that are calculated to continue them in savagery.
"104 The Commissioner of Indian Mfairs, Hiram Pierce,
promulgated the rules of the Courts of Indian Offenses in
1883,105 though Congress did not appropriate any funds for the
program until 1888. 106 The rules of the Court of Indian Offenses directly attacked Native American cultural practices
that undermined federal efforts at "civilizing," such as prohibiting sun dances and consulting with medicine people. 107
In the next few decades, other federal agencies would extend their reach into Indian country as the federal government
replaced tribal law and institutions. The primary federal institution dominating day-to-day life on Indian reservations, including criminal justice responsibilities for all but the most serious crimes, remained the BIA, which was originally part of
the War Department but was transferred to the U.S. Department of the Interior in 1849.108 Yet other federal agenciesincluding the U.S. Marshal's Service,109 and what is now the
Federal Bureau of Investigation ("FBI"), established in
1908 11O-supplemented that authority and, in some circumstances, replaced it. United States Attorneys and their offices
have been prosecuting Indian country cases in the federal
courts involving Native Americans since the MCA was
enacted. lll These institutions, which, along with the federal
courts, constitute the federal criminal justice system in Indian
Id. at X.
OFFICE OF INDIAN AFFAIRS, DEP'T OF THE INTERIOR, RULES GOVERNING
THE COURT OF INDIAN OFFENSES (1883), available at http://rclinton.files.
wordpress.com/2007/11/code-of-indian-offenses.pdf. A federal district court in
1888 held it was not unconstitutional for these courts to decide what amounted to
criminal charges despite their being "mere educational and disciplinary instrumentalities" because they were created administratively by the executive branch
rather than Congress. United States v. Clapox, 35 F. 575, 577 (D. Or. 1888).
106. DIV. OF LAW ENFORCEMENT SERVS., BUREAU OF INDIAN AFFAIRS, supra
note 96, at 26.
107. OFFICE OF INDIAN AFFAIRS, DEP'T OF THE INTERIOR, supra note 105.
108. Donald Craig Mitchell, Alaska v. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts, 14 ALASKA L. REV. 353,
357-58 (1997).
109. See U.S. Marshals Serv., History-A Pirate, a Marshal, and the Battle of
New Orleans, http://www.usmarshals.gov/history/duplessis/03.html (last visited
Aug. 10, 2010).
110. See Fed. Bureau of Investigation, History of the FBI, Origins: 1908-1910,
http://www.fbi.gov/libref/historiclhistory/origins.htm (last visited Aug. 10, 2010).
Ill. 28 U.S.C. § 547 (2006) ("[E]ach United States attorney, within his district,
shall-(l) prosecute for all offenses against the United States").
104.

105.