EX PARTE CROW DOG 109 U.S. 556, 3 S. Ct. 396 (1883)

JUSTICE MATTHEWS delivered the opinion of the Court. Section 2142 provides for the punishment of as- saults with deadly weapons and intent, by Indians The petitioner is in the custody of the marshal of the upon white persons, and by white persons upon United States for the territory of Dakota, imprisoned Indians; section 2143, for the case of arson, in like in the jail of Lawrence county, in the first judicial cases; and section 2144 provides that ‘the general district of that territory, under sentence of death, ad- laws of the United States defining and prescribing judged against him by the district court for that dis- punishments for forgery and depredations upon the trict, to be carried into execution January 14, 1884. mails shall extend to the Indian country.’ That judgment was rendered upon a conviction for The next two sections are as follows: the murder of an Indian of the Brule Sioux band of Sec. 2145. Except as to crimes, the punishment the Sioux Nation of Indians, by the name of Sin-ta- of which is expressly provided for in this title, the ge-le-Scka, or in English, Spotted Tail, the prisoner general laws of the United States as to the punish- also being an Indian of the same band and nation, ment of crimes committed in any place within the and the homicide having occurred, as alleged in the sole and exclusive jurisdiction of the United States, indictment, in the Indian country, within a place and except the District of Columbia, shall extend to the district of country under the exclusive jurisdiction of Indian country. the United States and within the said judicial dis- Sec. 2146. The preceding section shall not be trict. The judgment was affirmed on a writ of error, construed to extend to [crimes committed by one by the supreme court of the territory. It is claimed on Indian against the person or property of another behalf of the prisoner that the crime charged against Indian, nor to] any Indian committing any offense in him, and of which he stands convicted, is not an of- the Indian country who has been punished by the fense under the laws of the United States; that the local law of the tribe, or to any case where by treaty district court had no jurisdiction to try him, and that stipulations the exclusive jurisdiction over such its judgment and sentence are void. It therefore offenses is or may be secured to the Indian tribes prays for a writ of habeas corpus, that he may be de- respectively. livered from an imprisonment which he asserts to be . . . illegal. The indictment is framed upon section 5339 of The district courts of the territory of Dakota are in- the Revised Statutes. That section is found in title vested with the same jurisdiction in all cases arising 70, on the subject of crimes against the United under the laws of the United States as is vested in the States, and in Chapter 3, which treats of crimes aris- circuit and district courts of the United States. Rev. St. ing within the maritime and territorial jurisdiction of ¤¤ 1907Ð1910. The reservation of the Sioux Indians, the United States. It provides that ‘every person who lying within the exterior boundaries of the territory of commits murder, . . . within any fort, arsenal, dock- Dakota, was defined by article 2 of the treaty con- yard, magazine, or in any other place or district of cluded April 29, 1868 (15 St. 635) and by section country under the exclusive jurisdiction of the 1839 Rev. St., it is excepted out of and constitutes no United States, . . . shall suffer death.’ part of that territory. The object of this exception is Title 28 of the Revised Statutes relates to Indians, stated to be to exclude the jurisdiction of any state or and the sub-title of Chapter 4 is, ‘Government of territorial government over Indians within its exterior Indian Country.’ It embraces many provisions regu- lines, without their consent, where their rights have lating the subject of intercourse and trade with the been reserved and remain unextinguished by treaty. Indians in the Indian country, and imposes penalties But the district courts of the territory having, by law, and punishments for various violations of them. the jurisdiction of district and circuit courts of the

1 United States, may, in that character, take cognizance and Louisiana or the territory of Arkansas, and also of offenses against the laws of the United States, al- that part of the United States east of the Mississippi though committed within an Indian reservation, when river not within any state, to which the Indian title the latter is situate within the space which is consti- has not been extinguished, for the purposes of this tuted by the authority of the territorial government the act, be taken and be deemed to be the Indian country. judicial district of such court. If the land reserved for Since the passage of that act great changes have the exclusive occupancy of Indians lies outside the ex- taken place by the acquisition of new territory, by the terior boundaries of any organized territorial govern- creation of new states, and by the organization of ter- ment, it would require an act of Congress to attach it to ritorial governments, and the Revised Statutes, while a judicial district, of which there are many instances, retaining the substance of many important provi- the latest being the act of January 6, 1883, by which a sions of the act of 1834, with amendments and addi- part of the Indian territory was attached to the district tions since made regulating intercourse with the of Kansas and a part of the northern district of Texas. Indian tribes, has, nevertheless, omitted all definition 22 St. 400. In the present case the Sioux reservation is of what now must be taken to be ‘the Indian country.’ within the geographical limits of the territory of Nevertheless, although the section of the act of 1834 Dakota, and being excepted out of it only in respect to containing the definition of that date has been re- the territorial government, the district court of that ter- pealed, it is not to be regarded as if it had never been ritory within the geographical boundaries of whose adopted, but may be referred to in connection with district it lies, may exercise jurisdiction under the laws the provisions of its original context which remain in of the United States over offenses made punishable by force, and may be considered in connection with the them, committed within its limits. U.S. v. Dawson, 15 changes which have taken place in our situation, How. 467; U.S. v. Jackalow, 1 Black, 484; U.S. v. with a view of determining from time to time what Rogers, 4 How. 567; U.S. v. Alberty, Hemp. 444, opin- must be regarded as Indian country, where it is spo- ion by Mr. JUSTICE DANIEL; U.S. v. Starr, Id. 469; ken of in the statutes. It is an admitted rule in the in- U.S. v. Ta-wan-ga-ca, Id. 304. terpretation of statutes that clauses which have been The district court has two distinct jurisdictions. repealed may still be considered in construing the As a territorial court it administers the local law provisions that remain in force. Bramwell, L. J. in of the territorial government; as invested by act of Atty. Gen. v. Lamplough, 3 Exch. Div. 223Ð227; Congress with jurisdiction to administer the laws of Hardc. St. 217; Savings Bank v. Collector, 3 Wall. the United States, it has all the authority of circuit 495Ð513; Com. v. Bailey, 13 Allen, 541. This rule and district courts; so that, in the former character, it was applied in reference to the very question now may try a prisoner for murder committed in the terri- under consideration in Bates v. Clark, 95 U.S. 204, tory proper, under the local law, which requires the decided at the October term, 1877. It was said in that jury to determine whether the punishment shall be case by Mr. JUSTICE MILLER, delivering the opinion death or imprisonment for life; (Laws Dak. 1883, c. of the court, that ‘it follows from this that all the 9); and, in the other character, try another for a mur- country described by the act of 1834 as Indian coun- der committed within the Indian reservation, under a try remains Indian country so long as the Indians law of the United States, which imposes, in case of retain their original title to the soil, and ceases to be conviction, the penalty of death. Indian country whenever they lose that title, in the Section 2145 of the Revised Statutes extends the absence of any different provision by treaty or by act general laws of the United States as to the punish- of Congress.’ In our opinion that definition now ap- ment of crimes committed in any place within their plies to all the country to which the Indian title has sole and exclusive jurisdiction, except the District of not been extinguished within the limits of the United Columbia, to the Indian country, and it becomes nec- States, even when not within a reservation expressly essary, therefore, to inquire whether the locality of set apart for the exclusive occupancy of Indians, al- the homicide, for which the prisoner was convicted though much of it has been acquired since the pas- of murder, is within that description. sage of the act of 1834, and notwithstanding the for- The first section of the Indian intercourse act of mal definition in that act has been dropped from the June 30, 1834, defines the Indian country as follows: statutes, excluding, however, any territory embraced That all that part of the United States west of the within the exterior geographical limits of a state, not Mississippi, and not within the states of Missouri excepted from its jurisdiction by treaty or by statute

2 Ex Parte Crow Dog at the time of its admission into the Union, but sav- If bad men among the whites, or among other peo- ing, even in respect to territory not thus excepted and ple subject to the authority of the United States, shall actually in the exclusive occupancy of Indians, the commit any wrong upon the person or property of the authority of Congress over it, under the constitu- Indians, the United States will, upon proof made to tional power to regulate commerce with the Indian the agent and forwarded to the commissioner of tribes, and under any treaty made in pursuance of it. Indian affairs at Washington city, proceed at once to U.S. v. McBratney, 104 U.S. 621. cause the offender to be arrested and punished ac- This definition, though not now expressed in the cording to the laws of the United States, and also re- Revised Statutes, is implied in all those provisions, imburse the injured person for the loss sustained. most of which were originally connected with it If bad men among the Indians shall commit a when first enacted, and which still refer to it. It wrong or depredation upon the person or property of would be otherwise impossible to explain these ref- any one, white, black, or Indian, subject to the au- erences, or give effect to many of the most important thority of the United States and at peace therewith, provisions of existing legislation for the government the Indians herein named solemnly agree that they of Indian country. will, upon proof made to their agent and notice by It follows that the locus in quo of the alleged of- him, deliver up the wrong-doer to the United States, fense is within Indian country over which, territori- to be tried and punished according to its laws. And in ally, the district court of the first judicial district of case they wilfully refuse so to do, the person injured Dakota, sitting with the authority of a circuit court shall be reimbursed for his loss from the annuities or of the United States, had jurisdiction. But if section other moneys due or to become due to them under 2145, Rev. St., extends the act of Congress, section this or other treaties made with the United States. 5339, punishing murder, to the locality of the pris- And the president, on advising with the commis- oner’s offense, section 2146 expressly excepts from sioner of Indian affairs, shall prescribe rules and reg- its operation ‘crimes committed by one Indian ulations for ascertaining damages under the provi- against the person or property of another Indian;’ sions of this article as in his judgment may be proper. an exception which includes the case of the pris- But no one sustaining loss while violating the provi- oner, and which, if it is effective and in force, sions of this treaty or the laws of the United States makes his conviction illegal and void. This brings shall be reimbursed therefore. 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 ap- . . . Provisions of this treaty are intended to en- propriation for the payment of the expenses in- courage the settlement of individuals and families curred on his behalf in presenting it for decision in upon separate agricultural reservations, and the edu- this proceeding to this court. 22 St. p. 624, c. 143, cation of children in schools to be established. The March 3, 1883. condition of the tribe, in point of civilization, is illus- The argument in support of the jurisdiction and trated by stipulations on the part of the Indians, that conviction is, that the exception contained in section they will not interfere with the construction of rail- 2146, Rev. St., is repealed by the operation and legal roads on the plains or over their reservation, nor effect of the treaty with the different tribes of the attack persons at home or traveling, nor disturb Sioux Indians of April 29, 1868 (15 St. 635); and an wagon trains, mules, or cattle belonging to the people act of Congress, approved February 28, 1877, to rat- of the United States, nor capture nor carry off white ify an agreement with certain bands of the Sioux women or children from the settlements, nor kill nor Indians, etc. 19 St. 254. scalp white men, nor attempt to do them harm. The following provisions of the treaty of 1868 are By the Indian appropriation act of August 15, relied on: 1876, Congress appropriated $1,000,000 for the sub- Article 1. From this time forward all war between sistence of the Sioux Indians, in accordance with the the parties to this agreement shall forever cease. The treaty of 1868, and ‘for purposes of their civilization,’ government of the United States desires peace, and (19 St. 192), but coupled it with certain conditions its honor is hereby pledged to keep it. The Indians relative to a cession of a portion of the reservation, desire peace, and they now pledge their honor to and with the proviso ‘that no further appropriation for maintain it. said Sioux Indians for subsistence shall hereafter be

Ex Parte Crow Dog 3 made until some stipulation, agreement, or arrange- of any legislative provision, was decided by this ment shall have been entered into by said Indians court in the case of U.S. v. 43 Gallons of Whiskey, 93 with the president of the United States, which is cal- U.S. 188. See Holden v. Joy, 17 Wall. 211; The culated and designed to enable said Indians to be- Cherokee Tobacco, 11 Wall. 616. It becomes neces- come self-supporting.’ In pursuance of that provision sary, therefore, to examine the particular provisions the agreement was made, which was ratified in part that are supposed to work this result. by the act of Congress of February 28, 1877. The en- The first of these is contained in the first article of actment of this agreement by statute, instead of its the treaty of 1868, that ‘if bad men among the ratification as a treaty, was in pursuance of the policy Indians shall commit a wrong or depredation upon which had been declared for the first time in a proviso the person or property of any one, white, black, or to the Indian appropriation act of March 3, 1871 (16 Indian, subject to the authority of the United States St. 566 c. 120), and permanently adopted in section and at peace therewith, the Indians herein named 2079 of the Revised Statutes, that thereafter ‘no solemnly agree that they will, upon proof made to Indian nation or tribe within the territory of the their agent and notice by him, deliver up the wrong- United States shall be acknowledged or recognized as doer to the United States, to be tried and punished an independent nation, tribe, or power with whom the according to its laws.’ But it is quite clear from the United States may contract by treaty,’ but without in- context that this does not cover the present case of an validating or impairing the obligation of subsisting alleged wrong committed by one Indian upon the treaties. person of another of the same tribe. The provision The instrument in which the agreement was em- must be construed with its counterpart, just preced- bodied was signed by the commissioners, on the part ing it, which provides for the punishment by the of the United States, and by the representative chiefs United States of any bad men among the whites, or and head men of the various Sioux tribes, but with among other people subject to their authority, who certain exceptions on the part of some of the latter, shall commit any wrong upon the person or property and consisted of 11 articles. The first defines the of the Indians. Here are two parties, among whom, boundaries of the reservation; the second provides for respectively, there may be individuals guilty of a wagon roads through it to the country lying west of it, wrong against one of the other—one is the party of and for the free navigation of the Mississippi river; the whites and their allies, the other is the tribe of third for the places where annuities shall be received. Indians with whom the treaty is made. In each case the guilty party is to be tried and punished by the . . . United States, and in case the offender is one of the . . . The fourth article and part of the sixth article Indians who are parties to the treaty, the agreement is of the agreement, which referred to the removal of that he shall be delivered up. In case of refusal, de- the Indians to the Indian territory, were omitted from duction is to be made from the annuities payable to its ratification, not having been agreed to by the the tribe, for compensation to the injured person, a Indians. provision which points quite distinctly to the conclu- If this legislation has the effect contended for to sion that the injured person cannot himself be one of support the conviction in the present case, it also the same tribe. Similar provisions for the extradition makes punishable, when committed within the of criminals are to be found in most of the treaties Indian country by one Indian against the person or with Indian tribes, as far back, at least, as that con- property of another Indian, the following offenses, cluded at Hopewell with the Cherokees, November defined by the general laws of the United States as to 28, 1785. 7 St. 18. crimes committed in places within their exclusive ju- The second of these provisions, that are supposed risdiction, viz.: Manslaughter, Section 5341; attempt to justify the jurisdiction asserted in the present case, to commit murder or manslaughter, Section 5342; is the eighth article of the agreement, embodied in rape, Section 5345; mayhem, Section 5348; bigamy, the act of 1877, in which it is declared: ‘And Section 5352; larceny, Section 5356; and receiving Congress shall, by appropriate legislation, secure to stolen goods, Section 5357. That this legislation them an orderly government; they shall be subject to could constitutionally be extended to embrace the laws of the United States, and each individual Indians in the Indian country, by the mere force of a shall be protected in his rights of property, person, treaty, whenever it operates of itself, without the aid and life.’ It is equally clear, in our opinion, that these

4 Ex Parte Crow Dog words can have no such effect as that claimed for as throwing light on the meaning of the remainder; them. The pledge to secure to these people, with and looking at the purpose, so clearly disclosed in whom the United States was contracting as a distinct that, of the removal of the whole body of the Sioux political body, an orderly government, by appropri- Nation to the Indian territory proper, which was not ate legislation thereafter to be framed and enacted, consented to, it is manifest that the provisions had necessarily implies, having regard to all the circum- reference to their establishment as a people upon a stances attending the transaction, that among the arts defined reservation as a permanent home, who were of civilized life, which it was the very purpose of all to be urged, as far as it could successfully be done, these arrangements to introduce and naturalize into the practice of agriculture, and whose children among them, was the highest and best of all,—that were to be taught the arts and industry of civilized of self-government, the regulation by themselves of life, and that it was no part of the design to treat the their own domestic affairs, the maintenance of order individuals as separately responsible and amenable, and peace among their own members by the admin- in all their personal and domestic relations with each istration of their own laws and customs. They were other, to the general laws of the United States, out- nevertheless to be subject to the laws of the United side of those which were enacted expressly with ref- States, not in the sense of citizens, but, as they had erence to them as members of an Indian tribe. always been, as wards, subject to a guardian; not as It must be remembered that the question before us individuals, constituted members of the political is whether the express letter of section 2146 of the community of the United States, with a voice in the Revised Statutes, which excludes from the jurisdic- selection of representatives and the framing of the tion of the United States the case of a crime commit- laws, but as a dependent community who were in a ted in the Indian country by one Indian against the state of pupilage, advancing from the condition of a person or property of another Indian, has been re- savage tribe to that of a people who, through the dis- pealed. If not, it is in force and applies to the present cipline of labor, and by education, it was hoped case. The treaty of 1868 and the agreement and act might become a self-supporting and self-governed of Congress of 1877, it is admitted, do not repeal it society. The laws to which they were declared to be by any express words. What we have said is suffi- subject were the laws then existing, and which ap- cient at least to show that they do not work a repeal plied to them as Indians, and, of course, included the by necessary implication. A meaning can be given to very statute under consideration, which excepted the legislation in question, which the words will from the operation of the general laws of the United bear, which is not unreasonable, which is not incon- States, otherwise applicable, the very case of the sistent with its scope and apparent purposes, prisoner. Declaring them subject to the laws made whereby the whole may be made to stand. Implied them so, if it effected any change in their situation, repeals are not favored. The implication must be only in respect to laws in force and as existing, and necessary. There must be a positive repugnancy be- did not effect any change in the laws themselves. tween the provisions of the new laws and those of The phrase cannot, we think, have any more exten- the old. Wood v. U.S., 16 Pet. 342; Davies v. sive meaning than an acknowledgement of their alle- Fairbairn, 3 How. 636; U.S. v. Tynen, 11 Wall. 88; giance, as Indians, to the laws of the United States, State v. Stoll, 17 Wall. 425. made or to be made in the exercise of legislative au- The language of the exception is special and ex- thority over them as such. The corresponding obliga- press; the words relied on as a repeal are general and tion of protection on the part of the government is inconclusive. The rule is, generalia specialibus non immediately connected with it, in the declaration derogant. ‘The general principle to be applied,’ said that each individual shall be protected in his rights of CHIEF JUSTICE BOVILL in Thorpe v. Adams, L. R. 6 property, person, and life, and that obligation was to C. P. 135, ‘to the construction of acts of parliament is be fulfilled by the enforcement of the laws then ex- that a general act is not to be construed to repeal a isting appropriate to those objects, and by that future previous particular act, unless there is some express appropriate legislation which was promised to se- reference to the previous legislation on the subject, cure to them an orderly government. The expres- or unless there is a necessary inconsistency in the sions contained in these clauses must be taken in two acts standing together.’ ‘And the reason is,’ said connection with the entire scheme of the agreement Wood, V. C., in Fitzgerald v. Champneys, 30 Law J. as framed, including those parts not finally adopted, Ch. 782; 2 Johns. & H. 31–54, ‘that the legislature

Ex Parte Crow Dog 5 having had its attention directed to a special subject, now contained in sections 2145 and 2146 of the and having observed all the circumstances of the Revised Statutes were first enacted in Section 25 of case and provided for them, does not intend, by a the Indian intercourse act of 1834. 4 St. 733. Prior to general enactment afterwards, to derogate from its that, by the act of 1796 (1 St. 469), and the act of own act when it makes no special mention of its in- 1802 (2 St. 139), offenses committed by Indians tention so to do.’ against white persons, and by white persons against The nature and circumstances of this case Indians, were specifically enumerated and defined, strongly reinforce this rule of interpretation in its and those by Indians against each other were left to present application. It is a case involving the judg- be dealt with by each tribe for itself, according to its ment of a court of special and limited jurisdiction, local customs. The policy of the government in that not to be assumed without clear warrant of law. It is respect has been uniform. As was said by Mr. a case of life and death. It is a case where, against an JUSTICE MILLER, delivering the opinion of the court express exception in the law itself, that law, by argu- in U.S. v. Joseph, 94 U.S. 614, 617: ment and inference only, is sought to be extended The tribes for whom the act of 1854 was made over aliens and strangers; over the members of a were those semi-independent tribes whom our gov- community, separated by race, by tradition, by the ernment has always recognized as exempt from our instincts of a free though savage life, from the au- laws, whether within or without the limits of an orga- thority and power which seeks to impose upon them nized state or territory, and, in regard to their domes- the restraints of an external and unknown code, and tic government, left to their own rules and traditions, to subject them to the responsibilities of civil con- in whom we have recognized the capacity to make duct, according to rules and penalties of which they treaties, and with whom the governments, state and could have no previous warning; which judges them national, deal, with a few exceptions only, in their na- by a standard made by others, and not for them, tional or tribal character, and not as individuals. which takes no account of the conditions which To give to the clauses in the treaty of 1868 and the should except them from its exactions, and makes no agreement of 1877 effect, so as to uphold the juris- allowance for their inability to understand it. It tries diction exercised in this case, would be to reverse in them not by their peers, nor by the customs of their this instance the general policy of the government to- people, nor the law of their land, but by superiors of wards the Indians, as declared in many statutes and a different race, according to the law of a social state treaties, and recognized in many decisions of this of which they have an imperfect conception, and court, from the beginning to the present time. To jus- which is opposed to the traditions of their history, to tify such a departure, in such a case, requires a clear the habits of their lives, to the strongest prejudices of expression of the intention of Congress, and that we their savage nature; one which measures the red have not been able to find. It results that the first dis- man’s revenge by the maxims of the white man’s trict court of Dakota was without jurisdiction to find morality. It is a case, too, of first impression, so far or try the indictment against the prisoner; that the as we are advised; for, if the question has been conviction and sentence are void, and that his impris- mooted heretofore in any courts of the United States, onment is illegal. the jurisdiction has never before been practically The writs of habeas corpus and certiorari prayed asserted as in the present instance. The provisions for will accordingly be issued.

6 Ex Parte Crow Dog