CONSTITUTIONAL LAW-EQuAL PROTECTION-MAJOR CRIMES
ACT, 18 U.S.C. § 1153, WHICH SUBJECTS INDIAN CONVICTED OF
CERTAIN OFFENSES TO GREATER SENTENCE THAN NON-INDIAN CONVICTED FOR SAME OFFENSE, VIOLATES EQUAL PROTECTION PRINCIPLES INHERENT IN FIFTH AMENDMENT DUE PROCESS CLAUSE-
United States v. Big Crow, 523 F.2d 955 (8th Cir. 1975).
INTRODUCTION
A member of an Indian tribe committing an aggravated assault
while on an Indian reservation in South Dakota is subject to a
maximum sentence ten times greater than a non-Indian prosecuted
for an offense identical in nature and situs. In United States v.
Big Crow,' the Eighth Circuit Court of Appeals held the federal
statutory authorization for the above sentencing disparity, the
Major Crimes Act, 2 to be invalid, as applied, through violation of
the fifth amendment due process clause. s
The Major Crimes Act extends federal jurisdiction to thirteen
serious crimes committed by an Indian against either another
Indian or a non-Indian within "Indian country. ' 4 However, the
1. 523 F.2d 955 (8th Cir. 1975) [hereinafter cited as Big Crow].
2. 18 U.S.C. § 1153 (1970) [commonly known and hereinafter cited
as the Major Crimes Act]:
Any Indian who commits against the person or property of another
Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his
wife, who has not attained the age of sixteen years, assault with
the intent to commit rape, incest, assault with intent to kill, assault
with a dangerous weapon, assault resulting in serious bodily injury,
arson, burglary, robbery, and larceny within the Indian country,
shall be subject to the same laws and penalties as all other persons
committing any of the above offenses, within the exclusive jurisdiction of the United States.
As used in this section, the offenses of rape and assault with intent
to commit rape shall be defined in accordance with the laws of
the State in which the offense was committed, and any Indian who
commits the offenses of rape or assault with intent to commit rape
upon any female Indian within the Indian country shall be imprisoned at the discretion of the court.
As used in this section, the offenses of burglary, assault with a
dangerous weapon, assault resulting in serious bodily injury, and
incest shall be defined and punished in accordance with the laws
of the State in which such offense was committed. (Emphasis
added).
3. Big Crow at 959-60.
4. "Indian country" is defined by Congress in 18 U.S.C. § 1151 (1970):
Except as otherwise provided in sections 1154 and 1156 of this title,
the term "Indian country", as used in this chapter, means (a) all
land within the limits of any Indian reservation under the jurisdic-
CREIGHTON LAW REVIEW
[Vol. 9
same offenses committed by a non-Indian against an Indian on a
reservation, although still within federal jurisdiction, are prosecuted under a different statute. 5 Until the mid-1960's, when the
Major Crimes Act was amended to incorporate state law for the
definition and punishment of several of the enumerated crimes,0
defendants charged under either statute were tried and sentenced
in accordance with federal criminal law. Pursuant to these amendments, an Indian committing an aggravated assault on a reservation
is charged and sentenced under state law; while a non-Indian, under
the same circumstances, is charged and sentenced under Federal
law. 7 The inherent dissimilarities between the federal criminal
code and those of the several states create situations in which varying prosecutorial burdens and disparate maximum sentences may
be applied for the same offense.8 As this potential for invidious
discrimination depends on the defendant's classification as an
Indian,9 the Major Crimes Act has been challenged by Indian
tion of the United States Government, notwithstanding the issuance
of any patent, and, including rights-of-way running through the
reservations, (b) all dependent Indian communities within the
borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running through the same.
5. 18 U.S.C. § 11,52 (1970).
Except as otherwise expressly provided by law, the general laws
of the United States as to the punishment of offenses committed
in any place within the sole and exclusive jurisdiction of the United
States, except the District of Columbia, shall extend to the Indian
country.
This section shall not extend to offenses committed by one Indian
against the person or property of another Indian, nor to any Indian
committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty
stipulations, the exclusive jurisdiction over such offenses is or may
be secured to the Indian tribes respectively.
Id.
6. Act of Nov. 2, 1966, Pub. L. No. 89-707, § 1, 80 Stat. 1100, amending
18 U.S.C. § 1153 (1964) (codified at 18 U.S.C. § 1153 (1970)); Act of April
11, 1968, Pub. L. No. 90-284, § 501, 82 Stat. 80, amending 18 U.S.C. § 1153
(1964) (codified at 18 U.S.C. § 1153 (1970)).
7. The various forms of assault are charged under 18 U.S.C. § 113
(1970).
8. See, e.g., United States v. Boone, 347 F. Supp. 1031 (D.N.M. 1972)
wherein an Indian defendant was indicted under the Major Crimes Act for
assault with a dangerous weapon. The New Mexico statute for definition
and punishment of the Indian's offense differed from the corresponding federal statute applicable to a non-Indian indicted for the identical offense.
In both the prosecution's burden of proof and the maximum possible fine,
pursuant to the state statute, the prosecution was not required to prove
the element of intent to do bodily harm and the maximum possible fine
was five times greater.
9. The term "Indian" as applied in the Major Crimes Act has never
CONSTITUTIONAL LAW
1076]
defendants as a deprivation of equal protection of the laws.' 0
Such a constitutional attack arose in Big Crow.
The principle issue considered on appeal and the basis of this
note is whether the Major Crimes Act, through its incorporation of
state law, is violative of the equal protection and due process rights
of tribal Indians."
The criminal justice implications and constitutional complexities raised by this issue require analysis of the
decision not only in the context of the Act but also in the perspective of the United States' policy toward the American Indian.
DEVELOPMENT OF CONGRESSIONAL POLICY
CONCERNING INDIAN TRIBES
The Indian and his tribal governments occupy a unique and
often complex constitutional and political status in American
society. 12 Exemplifying the anomalous status to which the tribal
Indian is subjected is a body of laws which treat him differently
than the other citizens of this nation.' 3 These laws, collectively
known as "Federal Indian Law," reflect 150 years of judicial and
legislative efforts to resolve the dilemma of a quasi-sovereign
nation existing within the boundaries of a dominant sovereign
4
state.'
Congress, in exercising its specific and implied power to enact
Indian legislation,' 5 has based this law upon two conflicting
been defined by Congress. A body of case law has evolved which determines one's status as an Indian or non-Indian as a question of fact. In
general, the definition of "Indian" varies in relation to specific statutes or
litigation. See Fox v. Bureau of Revenue, 87 N.M. 261, 531 P.2d 1234 (1975)
(taxation); Wisconsin Potowatomies of the Hannahville Indian Community
v. Houston, 393 F. Supp. 719 (W.D. Mich. 1973) (custody jurisdiction); In re
Nelson, 327 N.Y.S.2d 774 (1972) (trespassing on a reservation). See generally U.S. Dep't of Interior, Federal Indian Law, 4-12 (1958) [hereinafter
Federal Indian Law].
10. Compare United States v. Cleveland, 503 F.2d 1067 (9th Cir. 1974)
with United States v. Analla, 490 F.2d 1204 ('10th Cir. 1974), vacated and
remanded on other grounds, 419 U.S. 813 (1974). See also United States
v. Antelope, 523 F.2d 400 (9th Cir. 1975), cert. granted, 44 U.S.L.W. 3471
(U.S. Feb. 24, 1976).
11. Big Crow at 957.
12. Kerr, Constitutional Rights, Tribal Justice, and the American Indian, 18 J. PuB. LAw. 311 (1969).
13. 5 U.S. COMM'N ON CivL RiGHiTs
14. A. de TOCQUEVILLE, DEMOCRACY
REPORT 125
IN AMERICA
(1961).
28 (1947).
15. The plenary power of Congress over Indian affairs has become an
axiom of Indian law. Justice Blackman, in Morton v. Mancari, 417 U.S.
535, 551 (1974) [hereinafter cited as Mancari], stated this power of Congress
"is drawn both explicitly and implicitly from the Constitution, itself." Judicial recognition of Congress' plenary power was first articulated in Chief
CREIGHTON LAW REVIEW
[Vol. 9
philosophies concerning the proper place of the Indian in American
society. One philosophy, commonly known as the "separative
premise," views the Indian tribe as an autonomous cultural and
political unit that should remain apart from the larger society.'0
The alternate philosophy regards the tribe as an entity that
should be dissolved of its members, civilized, and merged with
the mainstream of American life. 1 7 The co-existence of these conflicting policies has created "constant tension and uncertainty of
8
direction in the laws which govern the Indian and his tribe."'
Since the early nineteenth century, the Indian tribes have
endured several transformations in congressional policy. The federal government initially dealt with the various tribes in a sporadic
nature, premised on concepts of international law.' 9 The tribes
were recognized, during the first quarter century of the republic,
as independent foreign nations whose relations were embodied
in treaties. In 1830, with the westward surge of "Manifest Destiny,"
Congress enacted its first comprehensive Indian policy. 20 This
policy manifested the separative philosophy, and opened lands to
white settlers through the removal of eastern tribes to lands west
of the Mississippi River. Such forced migration, which continued
for the next four decades, resulted in the systematic settlement of
21
the tribes on federally reserved lands.
After the Civil War, congressional policy began to reflect the
reduced numbers and decimated power of the tribes and the growing demand for the vast stretches of reservation land. 22 Thus,
Justice Marshall's opinion in Worcester v. Georgia, 31 U.S. 350, 378, 6 Pet.
515, 558 (1832). See also Stephens v. Cherokee Nation, 174 U.S. 445, 478
(1899).
16. See Comment, The Indian Battle for Self-determination, 58 CALIF.
L. REV. 445, 453, 463 (1970); W. BROPHY & S. ADERLE, THE INDIAN, Am7IxCA'S
UNFINISHED BuSINESS 180 (1966) [hereinafter cited as BROPHY & ADERLE];
Note, Red, White, and Grey; Equal Protection and the American Indian, 21
STAN. L. REv. 1236, 1237-39 (1969).
17. 21 STAN. L. REv., supra note 16, at 1237-40.
18. 58 CALIF. L. Rnv., supra note 16, at 446.
19. Krieger, Principlesof the Indian Law and the Act of June 18, 1934,
3 GEO. WASH. L. REV. 279, 281 (1935).
20. 25 U.S.C. § 174 (1970) (originally enacted as Act of May 28, 1830,
ch. 148, 4 Stat. 411) (commonly referred to as the Indian Removal Act of
1830).
21. Kerr, Constitutional Rights, Tribal Justice, and the American In-
dian, 18 J. PUB. LAw 311, 313 (1969).
The actual process of removal, often
under the direction of the United States Army, was characterized by such
frequent examples of inhumanity and brutality that the experience has become known as the "Trail of Tears." HAGAN, AMEIcAN IND ANS 78 (4th
ed. 1964).
22.
Hass, The Legal Aspects of Indian Affairs from 1887 to 1957, 311
19761
CONSTITUTIONAL LAW
during the 1880's, an era of assimilation developed whereby tribal
lands were allotted to the individual members and the remainder
opened to the white settlement. 23 The regimented change from
tribal hunter to civilized individual farmer had disastrous effects
on the Indians. After forty years the result was "a generation of
landless, impoverished Indians, shorn of the social cohesiveness of
tribal culture. '24 Reacting to the failure of assimilation, Congress, in the 1930's, returned to a separatist philosophy and attempted to strengthen tribal political and land bases. 25
By 1950, the economic realities of burgeoning Indian programs
signalled a return to assimilation. 2 6 Congress opted for a termination of federal supervision and assistance with an accompanying merger of tribal members and property into the several
states.27 However, like the realization subsequent to the first
THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE
12 (1957).
23. 25 U.S.C. § 331 (1970)
ch. 119, 24 Stat. 388).
(originally enacted as act of Feb. 8, 1887,
24. 5 U.S. CoiynvI'N ON CrvIL RIGHTS REPORT 123
PROBLEM OF INDIAN ADMINISTRATION (1928).
(1961); MEHiAM, THE
25. 25 U.S.C. §§ 461-79 (1970) (originally enacted as Act of June 18,
1934, ch. 576, 48 Stat. 984).
26. 5 U.S. COMM'N ON CivIL RIGHTS REPORT 122-23 (19,61) 'CONG. REC.:
H.R. CON. RES. 108, 83rd Cong., 1st Sess., 99 CONG. REC. 9968 (1953).
27. The intent of Congress was embodied in H. CON. RES. 108, 83rd
Cong., 1st Sess., 99 CONG. REC. 9968 (1953), wherein it was stated:
Whereas it is the policy of Congress, as rapidly as possible, to make
the Indians within the territorial limits of the United States subject
to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States ...
and to grant them all the rights and prerogatives pertaining to
American citizenship....
The realization of that intent occurred with the Act of Aug. 15, 1953,
ch. 505, 67 Stat. 588, amending 18 U.S.C. §§ 1151, 1162, and 28 U.S.C. §§
1331, 1360, commonly known as Public Law 280 as amended in 18 U.S.C.
1162. That statute as now amended allows six states (Wisconsin, Nebraska,
California, Minnesota, Oregon and Alaska) to supercede tribal and federal
enactments in the case of reservation Indians. It further permitted any other
state to extend its civil and criminal jurisdiction to Indians without tribal
consent. Title IV of the 1968 Indian Civil Rights Act (codified at 25 U.S.C.
§ 1301 et seq.), repealed Public Law 280 to the extent that any state not
presently having jurisdiction over Indian tribes would be required to obtain
the consent of the tribes before assuming such jurisdiction. That repeal does
not affect states which have already assumed such jurisdiction under Public
Law 280. U.S. CODE CONG. & ADMIN. NEws, 90th Cong., 2nd Sess. 1837, 1866
(1968). See also Sonosky, State Jurisdiction over Indians in Indian Country, 48 N.D. L. REv. 551 (1972).
In 1973, President Nixon, in a message to Congress concerning Indian
affairs, recommended "the termination resolution of 1953 be repealed." 119
CONG. REC. 1273 (daily ed. March 1, 1973). No final congressional action
has resulted; however, Senate Bill 2010, "The Indian Law Enforcement Improvement Act," is presently before committee. This bill would permit In-
CREIGHTON LAW REVIEW
[Vol. 9
assimilative era, Congress realized the failure of its policy and in
the 1960's reintroduced federal recognition and services to the
tribes.28
Currently, the congressional policy is one of neither extreme.
Recent federal efforts have been directed toward developing the
tribe as a viable alternative to merger by the individual Indian into
American society. The crux of this policy is self-determination
29
through self-government and economic development.
DEVELOPMENT OF JUDICIAL POLICY
CONCERNING INDIAN TRIBES
In attempting to mitigate the impact of Congress' fluctuation
between extremes, the federal judiciary has, "since the beginning,
treated individual Indians as needing special protection and the
tribes as dependent nations.13 0 Judicial cognizance of the Indian
tribes as a separate people with sovereign powers has been a central
31
proposition in the development of federal Indian law.
In recognition of the emerging dominance of the United States
over the tribes and the accompanying demise of the principles of
international law as the basis of intercourse between the two
dian tribes to reacquire jurisdiction assumed by the States pursuant to Public Law 280. 121 CONG. REC. § 11,559 (daily ed. June 25, 1975).
28. Kennedy, Introduction, Indian Law Forum, 22 KAN. L. REV. 337,
338-39 (1974); Frizzell, Forward, Evolution of Jurisdiction in Indian Country, 22 KAN. L. REv. 341, 343 (1974).
29. Representative of congressional action directed toward development of the tribes and their governmental structure is the Indian Bill of
Rights (or the Indian Civil Rights Act, see note 25 supra) which was passed
to extend constitutional protections to the reservation Indian. Significantly,
Congress modified the total incorporation of the first through ninth amendments of the Constitution to the tribal governments as a recognition of their
unique legal status and cultural autonomy with existing values and interests.
An example of the modification of the Bill of Rights by Congress to
reflect the uniqueness of the tribal Indian was the deletion from the first
amendment of the clause prohibiting the establishment of religion, in recognition of "the theocratic nature of many tribal governments." Ward, Minority Rights and American Indians, 51 N.D.L. REV., 137, 179 (1974). See generally Lazarus, Title II of the 1968 Civil Rights Act: An Indian Bill of
Rights, 45 N.D.L. REv. 337 (1969); and Note, An Analysis of the Indian Bill
of Rights, 33 MONT. L. REV. 255 (1972).
The executive branch of the federal government has also been instrumental in the current policy of developing the tribes to a position of autonomy. In 1970, President Nixon recommended to Congress a policy of
"self-determination without termination." 28 CONG. Q. 1820 (July 17, 1970).
(See note 15 supra).
30. BRoPHY & ABERLE at 183.
31. See Comment, 58 CALr. L. REV. 445, 463-484 (1970).
1976]
CONSTITUTIONAL LAW
peoples, the Supreme Court, in the 1830's under Chief Justice John
Marshall, articulated the legal relationship of the tribes to the
white society. While declaring a tribe to be a "state" in the perspective of a "distinct political society, separated from others, capable
of managing its own affairs and governing itself," 32 the Court held
it to be neither a "state in the sense of a state of the Union nor
a "foreign state in the sense of the Constitution.3 3 Rather, a tribe
"was a domestic dependent nation"3 4 within the jurisdiction and
protection of the United States. Envisioning the eventual assimilation of the Indian, the Court characterized the tribes as being in a
"state of pupilage. '' 35 Accordingly, their relationship to the federal
government during this period of transformation and vulnerability
would be as "that of a ward to his guardian. '36 And in furtherance
of that premise, the Marshall Court subsequently added that the
relationship between the United States and the Indians "is, by our
Constitution and laws, vested in the government of the United
'37
States.
The judicial precedent of an Indian nation with quasi-sovereign
powers came into conflict with the assimilative policy of Congress
in the latter part of the Nineteenth Century. Although the Court
bowed to congressional prerogative, it maintained continuity while
blunting the impact of assimilative legislation by capitalizing on
Marshall's "guardian-ward" theory with its notions of tribal weakness and helplessness.38 For almost five decades the Court continued to recognize tribal sovereignty and emphasized the Indian's
39
special wardship status.
32. Cherokee Nation v. Georgia, 30 U.S. 1, 11, 5 Pet. 1, 16 (1831).
33.
Id. at 11, 5 Pet. at 16.
34.
35.
36.
37.
38.
Id. at 12, 5 Pet. at 17.
Id.
Id.
Worcester v. Georgia, 31 U.S. 350, 380, 6 Pet. 515, 561 (1832).
See Comment, 58 CALIF. L. Rsv. 445, 466-471 (1970). See also U.S.
v. Thomas, 151 U.S. 577, 585 (1894) wherein the Court held that the federal
government has full authority to pass such laws as may be necessary to
give to Indians full protection in their persons and property, and to punish
all offenses committed against them or by them within federally granted
reservations.
39. A portrayal of the Supreme Court's view of the Indian during this
period is found in Board of County Comm'rs v. Seber, 318 U.S. 705, 715
(1943):
In the exercise of war and treaty powers, the United States overcame the Indians and took possession of their lands, . . leaving
them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that
was required to perform that obligation and to prepare the Indians
CREIGHTON LAW REVIEW
[Vol. 9
During the last twenty years a contemporary judicial notion
of tribal sovereignty has been articulated in light of efforts to
expand state jurisdiction. While guarding the right of self-government, it appears that the courts will allow states to exercise their
authority over other reservation affairs in the absence of federal
preemption.4 0 In 1973, the United States Supreme Court reviewed
the tribal sovereignty doctrine 41 and stated that it had not
"remained static during the [past] 141 years," but had "undergone
considerable evolution in response to changing circumstances. '42
The doctrine is no longer a "definite resolution" to assertions of
state intrusion but merely a "useful backdrop against which appli'48
cable treaties and statutes must be read.
CRIMINAL JURISDICTION WITHIN INDIAN COUNTRY
Criminal jurisdiction within "Indian country" has developed
in an era of congressional vascillation between separation and
assimilation, and judicial evolution of tribal sovereignty.
Until the latter part of the Nineteenth Century, the basis of
criminal jurisdiction on reservations was the tribal attribute of selfgovernment to which Congress adhered by exempting from federal
jurisdiction crimes involving only Indians. 44 Like tribal sovereignty, however, that adherence was limited. The federal government asserted jurisdiction whenever a non-Indian was involved as
either the defendant or victim of a crime. 45 In the 1870's and
to take their place as independent, qualified members of the mod-
ern body politic.
The one exception to the Court's continuity of position during that period was Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). It has been suggested
that that opinion was a reflection of the Court's awkwardness in continued
recognition of tribal sovereignty during a period of legislative assimilation.
40. On the question of federal pre-emption see Organized Village of
Kake v. Egan, 369 U.S. 60 (1962); and Warren Trading Post v. Tax Comm'n,
380 U.S. 685 (1965).
41. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171
(1973).
42. Id.
43. Id. at 172.
44. Tribal jurisdiction over offenses between Indians did not originate
with the federal government but as an essential element of a sovereign
nation. Congressional policy respecting tribal jurisdiction over Indian offenses was evidenced in the Act of March 3, 1817, 3 Stat. 383, the statutory
origin of 18 U.S.C. § 1152.
45. Federal jurisdiction over Indians committing offenses against nonIndians dates back to the 1780's. The first federal statute dealing specifically with such crimes was the Act of March 3, 1817, 3 Stat. 383 (codified
at 18 U.S.C. § 1152 (1970)). The statutory basis of federal jurisdiction over
crimes by non-Indians against Indians was the Trade and Intercourse Act,
Act of July 22, 1790, §§ 5-6, 1 Stat. 137, 138.
19761
CONSTITUTIONAL LAW
1880's when Congress turned to an assimilation policy, tribal retention of such a sovereign attribute was regarded as a vestige of
separatism no longer desired.
The inevitable clash between judicial precedent of an Indian
sovereignty and the realigned congressional objective of detribalization and civilization occurred in Ex parte Crow Dog.4 6 The Supreme
Court held that because of statutory exclusion 47 the Federal courts
were without jurisdiction over a crime between Indians in Indian
country.4 8 Although recognizing the authority of Congress
through its plenary power over Indian affairs to confer federal
jurisdiction, the Court asserted that such a departure from "the
general policy of the government towards the Indians would "require a clear expression of the intention of Congress. '49 Until
such explicit congressional direction was established, it was reasoned that the tribes, through the precedent of Indian sovereignty,
retained exclusive jurisdiction to punish crimes among their people.
Congress, stating their conviction for the "advancement and civilization of the Indian," 50 promptly filled the statutory void referred
51
to by the Court with the Major Crimes Act.
As the criminal jurisdiction facet of the assimilative philosophy,
the Act subjected to federal jurisdiction seven serious offenses com46. 109 U.S. 556 (1883)
[hereinafter cited as Crow Dog]. That spec-
tacular murder trial gained considerable attention because of not only the
legal issues involved but also the cast of characters. Spotted Trail, a great
warrior-chief of the Brule Sioux Band of the Sioux Nation, was murdered
by Crow Dog, a member of the same tribe, in retaliation for the seduction
of a crippled friend's wife, BROPHY & ABERLE at 49.
47. The Court relied on the Act of May 27, 1854, ch. 26, § 3, 10 Stat.
270, which exempted from federal jurisdiction crimes by Indians against
Indians. Crow Dog at 558. The Court also relied' on the Act of Feb. 28,
1877, 19 Stat. 256, as a basis for the lack of jurisdiction. Crow Dog at 562.
48. Crow Dog at 570-72.
49. Id. at 572. For the Supreme Court's own recount of that case see
Keeble v. United States, 412 U.S. 205, 209-10 (1973).
50. 16 CONG. REc. 934 (1885) (the remarks of Representative Cutcheon):
It is an infamy upon our civilization, a disgrace to this nation, that
there should be anywhere within its boundaries a body of people
who can, with absolute impunity, commit the crime of murder,
there being no tribunal before which they can be brought for punishment. 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 ....
I do not believe that we
shall ever succeed in civilizing the Indian race until we teach them
regard for law and show them that they are not only responsible
to the law but amenable to its penalties.
51. Indian Appropriations Act of 1885, § 9, 23 Stat. 385 (1885).
CREIGHTON LAW REVIEW
[Vol. 9
mitted by Indians within Indian country. 52 Within a year the
Court, in United States v. Kagama,5 3 upheld the constitutionality
of new legislation by resort to the doctrines of wardship and congressional plenary power to protect the tribes in their helpless and
weak condition.
THE MAJOR CRIMES ACT TODAY
The Major Crimes Act has continued as the basis of federal
jurisdiction over serious crimes committed by Indians on reservations. Since its inception, the Act has been amended on several
occasions to include six additional offenses, four of which involve
assault.
54
In 1966 and 1968, amendments to the Act incorporated the law
of the state in which the offense was committed for the definition
and punishment of two of the assault offenses.55 Prior to these
amendments, the Act, pursuant to its own language, subjected an
Indian defendant "to the same laws and penalties as all other persons committing any of the ... offenses, within the exclusive
jurisdiction of the United States."5 6 By incorporating state law
the amended act created not only an internal inconsistency but a
situation where criminal definition and punishment sharply different from federal law could be applied to Indians.
Although the Major Crimes Act is often considered to be the
focus of the Indian criminal jurisdictional structure within Indian
country, it is theoretically the exception rather than the rule. It
is still the intent of Congress that the tribes and their courts retain
jurisdiction over Indian offenses on reservations.5 7 The extent df
this jurisdiction is to be limited only when explicitly decreed by
Congress.5 8 However, aside from the Major Crimes Act, tribal
52. That statute extended federal jurisdiction to the crimes of murder,
manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.
53.
118 U.S. 375 (1886).
54. 18 U.S.C. § 1153. (See note 2 supra for the full text of the Act).
55. Act of Nov. 2, 1966, Pub. L. 89-707 § 1, 80 Stat. 1100; and Act of
Apr. 11, 1968, Pub. L. 90-284, Title V, § 501, 82 Stat. 80.
'56. 18 U.S.C. § 1153 (1970).
57. See 18 U.S.C. § 1152 (1970); Federal Indian Law 319-320; Vollman, Criminal Jurisdictionin Indiain Country: Tribal Sovereignty and Defendant's Rights in Conflict, 22 KAN. L. REV. 387, 390 (1974).
58. Since 1953, Public Law 280 has created an exception to this statement by allowing six states to assert civil and criminal jurisdiction over
the reservation Indians of those states. See note 27 supra. See United
States v. Quiver, 241 U.S. 602, 605-6 (1916), wherein the Court expressed
that the long-established policy of Congress has always been
that the relations of the Indians, among themselves-the conduct
of one toward another-is to be controlled by the customs and laws
'1976]
CONSTITUTIONAL LAW
jurisdiction has been eroded by the assumption of the federal courts
over offenses which, regardless of situs, are in violation of the general laws of the United States. 59
Generally crimes by Indians against non-Indians on reservations are within federal jurisdiction when the offense is one
specified by the United States Code as being a federal crime. However, there are exceptions: first, when the accused "has been
punished by the local law of the tribe;" and secondly, "where, by
treaty stipulations, the exclusive jurisdiction over such offenses is
or may be secured to the Indian tribes respectively." 60 Although
the states are without jurisdiction in this area, their laws can be
of importance through the Assimilative Crimes Act. This federal
statute provides for the incorporation of state law into the federal
code when no act of Congress makes a defendant's conduct punishable. 61
A non-Indian committing an offense against an Indian or his
property within Indian country is subject to federal jurisdiction. 62 However, the exclusiveness of this jurisdiction to the
ouster of tribal courts is uncertain. Because of "continu(ing)
assaults on tribal claims of jurisdiction over non-Indians, most
' 63
tribal courts no longer attempt to exercise such jurisdiction.
of the tribe, save when Congress expressly or clearly directs otherwise.
59.
See Walks on Top v. United States, 372 F.2d 422 (9th Cir. 1967),
wherein the Court held that the general laws of the United States are applicable to a violation of 18 U.S.C. § 1114 (assaulting a federal officer)
which involved only Indians. The Indian defendant is not immunized from
federal jurisdiction by 18 U.S.C. § 1152 (see note 4 supra) as the exception
therein is from federal enclave law (18 U.S.C. § 1153) and not from the
general laws.
60. 18 U.S.C. § 1152 (1970).
See also Federal Indian Law 321-322.
(But see S. Rep. No. 620, 94th Cong., 2d Sess. § 2 (1976).)
Although on its face 18 U.S.C. § 1152 applies to crimes committed
by an Indian that have a non-Indian victim, the courts have held
that, in view of the overlap with 18 U.S.C. § 1153, the latter statute
must be utilized as the prospective vehicle in these circumstances,
as to the crimes there numerated, thus limiting 18 U.S.C. § 1152
to non-Indian offenses. See Henry v. United States, 432 F.2d 114,
cert. denied, 400 U.S. 1011 (1971).
61. 18 U.S.C. § 13 (1970).
Whoever within or upon any of the places now existing or hereafter
reserved or acquired as provided in section 7 of this title, is guilty
of any act or omission which, although not made punishable by
any enactment of Congress, would be punishable if committed or
omitted within the jurisdiction of the State, Territory, Possession, or
District in which such place is situated, by the laws thereof in force
at the time of such act or omission, shall be guilty of a like offense
and subject to like punishment.
62.
18 U.S.C. § 1152 (1970).
63. Vollmann, Criminal Jurisdictionin Indian Country: Tribal Sover-
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The Supreme Court recently enforced the proposition of federal
dominance by holding that tribal courts could extend jurisdiction
over non-Indians on reservations, but only upon "Congress' decision
6' 4
to vest in tribal courts. . . portion of its own authority.
As this brief overview indicates, criminal jurisdiction within
Indian country is a legal labyrinth with three political bodies competing for authority. It is no surprise that a portion of this scheme,
the Major Crimes Act, has been challenged on the constitutional
grounds of equal protection and due process.
UNITED STATES v. SETH HENRY BIG CROW
Appellant, Seth Henry Big Crow, an Indian, was convicted
under the Major Crimes Act of assault with intent to inflict great
bodily injury upon another Indian65 while on an Indian reservaeignty and Defendants' Rights in Conflict, 22
See also FEDERAL
INDIAN LAw at
523.
KAN.
L. REv. 387, 394 (1974).
64. United States v. Maxurie, 95 S.Ct. 710, 718 (1975).
65. Big Crow at 956.
Appellant was indicted under the Major Crimes Act on three counts:
Assault with a dangerous weapon (Count I); assault with intent to inflict
bodily harm (Count II); and burglary (Count III). The federal jury returned a verdict of not guilty on Count I, but guilty of the lesser included
offense of simple assault; guilty as charged on Count II; not guilty on Count
III, but guilty of the lesser included offense of fourth degree burglary. Respective sentences of three months, five years and three years were imposed. Brief for Appellant at 6-7, United States v. Big Crow, 523 F.2d 955
(8th Cir. 1975).
On 'the issue of instructions on lesser offenses under the Major Crimes
Act and the implication of an impermissible extension of federal jurisdiction, see Keeble v. United States, 412 U.S. 205 (1973); and Note, 22 KAN.
L. REV. 479 (1973-1974).
The indictment under Count II was charged according to the state statute incorporated by the third paragraph of the Major Crimes Act (see note
3 supra). The statute selected, -S.D. CoMP. L. § 22-18-12, (1967) reads as
follows:
Assault with intent to inflict great bodily injury. - Whoever assaults
another with intent to inflict great bodily injury shall be punished
upon conviction thereof by imprisonment in the state penitentiary
for not less than one year, nor more than five years, or in the county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.
The appellant was not charged with an assault specified in the Major
Crimes Act (assault resulting in serious bodily injury), but instead with
the state statute being most nearly equivalent in essential elements. Two
questions, although not presented by the appellant, are raised by that indictment; first, whether assault with intent to inflict great bodily injury
is a crime under the Major Crimes Act, and second, whether an indictment
which charges assault with intent to inflict grave bodily injury in violation
of 18 U.S.C. § 1153 (1970) (the Major Crimes Act) and NEB. REV. STAT.
§ 28-413 (Cum. Supp. 1974) (S.D. COMP. L. § 22-18-12) is a sufficient indictment. Both these questions were negatively answered by the Federal Dis-
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CONSTITUTIONAL LAW
tion.o6 The Federal District Court imposed the maximum sentence
of five years imprisonment as prescribed by the incorporated state
law. T Contending that a non-Indian charged with an identical
offense would be prosecuted under federal law and subject to a
maximum sentence of six months,68 the defendant appealed the conviction, on the constitutional grounds that the statutory authorization of disparate maximum penalties was "an 'invidious discrimination' based solely on race" and, as applied, a deprivation of equal
protection of the laws in violation of the fifth amendment due process clause. 69 Accordingly, in Big Crow, the Eighth Circuit faced
a two-tier issue: First, would a non-Indian committing an assault
identical to that of the Indian defendant be subjected to federal
or state law for punishment of the crime? Secondly, if a nonIndian defendant was subjected exclusively to federal punishment,
would the disparity in maximum sentences violate the constitutional rights of the Indian?
Resolution of the first issue was a matter of judicial interpretation of the Assimilative Crimes Act. 70
That Act, which adopts
trict Court of Nebraska in United States v. Tyndall, 400 F. Supp. 949, 950
(D. Neb. 1975) where it was reasoned that an essential element of the offense had been omitted from the indictment. Id. at 952-53.
66. The alleged offenses occurred in St. Francis, South Dakota, which
is within the confines of the Rosebud Indian Reservation. Brief for Appellant at 6, Big Crow. See note 4 supra.
67. Big Crow at 956. See text of the incorporated statute at note 65
supra.
68. Big Crow at 957. Jurisdiction would be asserted under 18 U.S.C.
§ 1152, see text of statute at note 4 supra. The offense, it was argued,
would be defined and punished in accordance with the federal statute proscribing assaults, 18 U.S.C. 113 (1970), which provides:
Whoever, within the special maritime and territorial jurisdiction
of the United States, is guilty of an assault shall be punished as
follows:
(d) Assault by striking, beating, or wounding, by fine of not more
than $500 or imprisonment for not more than six months or both.
69. Big Crow at 957. The equal protection clause is found only in
the fourteenth amendment which is limited in application to the action of
the several states. Therefore it has been held that an equal protection challenge to federal legislation is channeled through the due process clause
of the fifth amendment.
Although 'the Fifth Amendment contains no equal protection
clause, it does forbid discrimination that is so unjustifiable as to be
violative of due process.' . . . Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of
the Fifth Amendment. Johnson v. Robinson, 415 U.S. 361, 364
(1974); accord Bolling v. Sharpe, 347 U.S. 497 (1954).
Therefore, the appellant's constitutional challenge, although initially
framed in a perspective of due process, is a question of equal protection,
its judicial precedent and standards.
70. Big Crow at 957-58. 18 U.S.C. § 13 (1970). See note 61 supra
for text of Act.
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[Vol. 9
state criminal statutes relating to acts or omissions committed
within territorial enclaves over which the federal government
maintains jurisdiction and which are not made penal by any enactment of Congress, was designed to supplement the Federal Criminal
Code. 71 Therefore, the Assimilative Crimes Act has no application if the act or omission in question is made punishable by
federal statute. Correspondingly, the federal government can
incorporate and apply state law only if the conduct in question is
not made penal by federal law.
The prosecution contended that the precise act of "assault
resulting in serious bodily injury," as enumerated in the Major
Crimes Act, was not punishable by the federal assault statute
describing "assault by striking, beating, or wounding." 72 Accordingly, it argued, state law would apply to both an Indian defendant
under the Major Crimes Acts and a non-Indian defendant pursuant
to the Assimilative Crimes Act and thus no sentencing disparity
73
would arise.
By declaring a serious bodily injury to be a non-essential
element of federally-defined assault, 74 the court held the federal
assault statute "does make penal the precise acts of assault resulting
in serious bodily injury. '7. Moreover, this action confirmed the
existence of a disparity in maximum sentencing.
To justify this interpretation the court relied on the Supreme
Court's pronouncements in Williams v. United States.7 6 Therein
it was stated that the Assimilative Crimes Act does not authorize
the enlargement of a congressionally defined offense by the application of state law. Rather its purpose is to supplement federal
criminal law without modification or repeal of existing provisions. 77 It is properly viewed as a tool "to fill in gaps in the
Federal Criminal Code where no action of Congress has been taken
7
to define the missing offenses.
From this perspective, the Big Crow court envisioned no inadequacy in the scope of the federal assault statute. Moreover it stated
that if the federal government desires a more severe punishment
for an aggravated assault, "the remedy lies in Congress, not in sub71.
United States v. Patmore, 475 F.2d 752, 753 (10th Cir. 1973).
See note 68 supra for text of statute.
77.
Id. at 718. See United States v. Patmore, 475 F.2d 752, 753 (10th
72. 18 U.S.C. 113(d) (1970).
73. Big Crow at 957-58.
74. Id.
75. Id. at 959.
76. 327 U.S. 711 (1946).
Cir. 1973).
78.
Williams v. United States, 327 U.S. 711, 719 (1946).
1976]
CONSTITUTIONAL LAW
stitution at the prosecutor's discretion of the state law for federal
law. ' 79 Even though this rationale is open to question,"0 it permits progression to the crux of the case-the review of the constitutionality of the Major Crimes Act as applied.
The Big Crow court held that authorization of disparate
maximum sentences premised solely on the defendant's classification as an Indian was invalid as a denial of equal protection in
81
violation of the due process clause of the fifth amendment.
In so holding, it appeared that the court utilized three standards
of analysis for review of legislative classifications. 82 Although
reaching the same result by all standards, the court's resistance to
79. Big Crow at 958.
80. The court acknowledged an opposing view supported by Fields v.
United States, 438 F.2d 205, 207-08 (2d Cir. 1971), cert. denied, 403 U.S. 907
(1971). Therein the Second Circuit held that the Assimilative Crimes Act
does not require the government to proceed under a federal statute, but
allows prosecution under a state law prohibiting batteries of a specific class,
since the state statute provided a theory essentially different from that provided in the federal statute.
81. Big Crow at 959-60.
82. Id. The Supreme Court has articulate three standards of analysis
for constitutional review of a statutory classification challenged on grounds
of equal protection. The Court's traditional mode of legislative review is
one of minimal scrutiny. Under this "rational basis" test, the classification
will be overturned only if it lacks a reasonable relationship to a proper
governmental objective and is therefore purely arbitrary. This lenient
standard, highlighted by the Court's use of hypothesized relationships, was
used to invalidate only one state law between 1937 and 1970. See Lindsley
v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40 (1973).
In regard to classifications that discriminate against discrete and insular
minorities or impinge on fundamental rights, the Court has constructed a
rigid review standard of strict scrutiny. Considering a minority classification to be inherently suspect, the Court has held classifications, such as
those based on race, to be justifiable only when "necessary to a compelling
government interest." Only one statutory classification analyzed under this
test of rigid scrutiny has been held to be valid. See Korematsu v. United
States, 323 U.S. 214 (1944); Graham v. Richardson, 403 U.S. 365 (1971).
Until the early 1970's the "rational basis" and "compelling state interest" tests formed a usually inflexible system of judicial review that predicated the result on the standard used. In several current decisions, a standard of intermediate scrutiny has been developed that applies the traditional
test of reasonable relation but demands that the legislative classification
be substantially related in fact to the statutory objective. Under this analysis, the Court purportedly will refuse "to hypothesize the existence of facts
that would indicate that the challenged classification was reasonably related to legitimate governmental goals." Comment, 40 U. CHI. L. Rv. 807,
819 (1973). See Jimenez v. Weinberger, 417 U.S. 628 (1974); Eistenstadt
v. Baird, 405 U.S. 438 (1972). See generally Gunther, Foreward: In Search
of Evolving Doctrine on a Changing Court: A Model for a Newer Equal
Protection,86 HARV. L. Rxv. 1 (1972).
CREIGHTON LAW REVIEW
[Vol. 9
a resolution of the issue by a single criterion fails to clarify this
83
unsettled area.
The Eighth Circuit initially appears to have resolved the equal
protection issue under the lenient rational basis standard by deciding that a disparity in sentencing practices based on the Indiannon-Indian classification was not reasonably related to a proper
governmental objective of establishing a special guardianship status
for Indians. 84 Because of the blatancy of the discrimination
involved, this resolution would seem persuasive. However, if the
court was actually employing the traditional minimal scrutiny
standard, such a conclusion would be unusual from the standpoint
of prior judicial leniency when reviewing legislative classifications.8 5 Emphasizing this departure from precedent is the court's
allusion to a recent Tenth Circuit decision upholding the same
statutory classification under the more stringent standard of review,
i.e., an "inherently suspect criteria.""6 If the Big Crow court, in
its stated disagreement with that decision, failed to understand the
Tenth Circuit's declaration of the sufficiency of a reasonable relation to satisfy that more rigid and demanding test, their resort to
a lower level of scrutiny as a means of explanation is not beneficial
in the establishment of precedent for future cases.
Perhaps the above discord was alleviated by an unarticulated
use of an intermediate standard of equal protection. This standard
of review requires both a reasonable nexus between the classification and the objective, and a "substantial relation in fact" to an
end ascertainable from the legislation's history.8 7 In an apparent
refusal to hypothesize a conceivable set of facts to justify any
rational relationship, only the federal government's unique guardian obligation of protecting the tribal Indian was referred to in the
decision.8 8 As to that objective, the court recognized the validity of
legislation singling out the Indian for special treatment but implied
that such a classification is not rationally related if burdensome
upon that group. Thus, a standard of review equating "reasonable"
with "favorable" was used.
83. Big Crow at 959-60. See note 10 supra for cases which illustrate
the judicial divergence of opinion on the constitutional validity of the Major
Crimes Act as applied.
84.
85.
Big Crow at 959.
See note 82 supra.
86. Big Crow at 959. See United States v. Analla, 490 F.2d 1204, 1208
(10th Cir. 1974), vacated and remanded on other grounds, 95 S. Ct. 28
(1974), cert. denied, 95 S. Ct. 2661 (1975).
87. Big Crow at 959-60. See note 82 supra,
88. Big Crow at 959.
19761
CONSTITUTIONAL
LAW
The validity of such a standard is reinforced by the Supreme
Court's decision in Morton v. Mancari.89 The Court in Mancari
recognized the unique and favored status of the Indian, and upheld
the constitutionality of the statute authorizing beneficial discrimination for tribal members 0
While appearing to resolve the constitutional issue through an
intermediate level of review, the Court proceeded to question the
appropriateness of such a standard, and subsequently employed the
strict review standard requiring a compelling state interest for
justification of the classification. The use of that standard was
based on the presence of racially-premised invidious discrimination.9 1 Several questions are raised by that premise.
The inclusion of the classification "Indian" as a racially suspect
criterion is one such question. What is the scope of "Indian" as
used in the Major Crimes Act? Substantial support exists for the
proposition that "Indian," as used in federal statutes, is not racially
descriptive but a political-cultural designation pertaining only to
members of federally recognized Indian tribes.9 2 A tribal member
may have his wardship status renounced and leave the reservation.9 3 Therefore, there are many individuals, who after severance
from the tribe, are racially classified as Indians but are not subject
to the special protection of the federal guardian. 4 From this per89. 417 U.S. 535 (1974). Mancari involved the constitutionality of the
statutes granting qualified Indians employment preference with the Bureau
of Indian Affairs. J. Blackmun held that the preference did not constitute
invidious racial discrimination but was reasonable and rationally related
to the furtherance of Indian self-government. Id. at 553-555. In so holding,
the Court cited numerous occasions when it has "upheld legislation singling
out Indians for particular and special treatment." Id. at 2495. See 10 TULSA
L.J. 454 (1975).
90. Mancari at 553-555.
By basing its decision in Mancari on the "unique legal status of Indian
tribes under federal law," and not on the question of racial preference, the
Court evaded the explosive issue of "reverse discrimination." Id. See also
2 OHio N.L. REV. 371 (1974).
On the question of "reverse" or "benign" discrimination see generally
Kaplan, Equal Justice in an Unequal World: Equality for the Negro-The
Problem of Special Treatment, 61 Nw. U.L. REv. 363 (1966-67).
91. Big Crow at 959-960.
92. Mancari at 553-55.
93. It is recognized that wardship is not the perpetual status of the
tribal Indian. Rather it is within the plenary power of Congress to determine the appropriate time for relinquishment of each vestige of federal control. See Williams v. Lee, 358 U.S. 217, 220-222 (1959); United States v.
Ramsey, 271 U.S. 467, 469-70 (1926); Tiger v. Western Investment Co., 221
U.S. 286 (1911). In this context it is within the prerogative of each individual tribal member, as a national and state citizen, to decide for himself when he desires, if ever, to leave the protected ward status of the tribe.
94. Mancariat 553 n.24.
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[Vol. 9
spective it is apparent that the statutory language of "Indian"
means "tribal Indian" only. 5 That same interpretation has been
attributed to the Major Crimes Act. 96 Accordingly, it can be
logically argued that "Indian" is not a racial classification, but a
criminal justice criterion designed to afford protection for tribal
wards. The Eighth Circuit's sole reliance upon a racial classification for implementation of a strict scrutiny test is therefore
questionable.
IMPLICATIONS
By vacating the conviction of the Indian assailant on the
grounds that the Maj or Crimes Act was unconstitutional as applied,
the court in Big Crow created a void within the criminal justice
system of the tribal Indian. Although theoretically questionable
as to jurisdictional exclusiveness, 9 7 the federal government is regarded as having primary responsibility for the prosecution of
serious offenses by Indians on reservations.9" As a result of Big
Crow and similar decisions, 99 the current statutory scheme presents
the potential for effectively denying the federal government the
ability to prosecute with regard to the enumerated offenses punishable in accordance with state law. Whenever the incorporated state
law subjects an Indian defendant to the invidious discrimination
of a disparate maximum sentence the courts apparently will dismiss
the indictment on equal protection grounds. The effect is the
inability of the federal authorities to prosecute Indians who commit
aggravated assaults on reservations.' 0 0
Two legislative measures currently before Congress would
eliminate the statutory authorization for a sentencing disparity
95. Mancari at 553-555. Simmons v. Eagle Seelatsee, 244 F. Supp. 808,
814-15 (1965), alf'd, 384 U.S. 209 (1966); Fox v. Bureau of Revenue, 87
N.M. 261, -, 531 P.2d 1234, 1235-36 (1975); State v. Attebery, 110 Ariz.
354, -, 519 P.2d 53, 55 (1974). See also FederalIndian Law 4-12.
96. State v. Howard, 33 Wash. 250, 74 P. 382 (1903); State v. District
Court, 125 Mont. 398, 239 P.2d 272 (1951); People v. Carmen, 43 Cal. 342,
273 P.2d 521 (1954). See United States v. Kagama, 118 U.S. 375, 383 (1886)
(dictum). See generally 82 HARv. L. REV. 697, 701 (1969).
97. Note, The Major Crimes Act; Exclusive Federal Criminal Jurisdiction or Concurrent Federal-Tribal Jurisdiction, 1 Indian L. Rep., No. 3, 52
(1974).
98. In re Carmen's Petition, 165 F. Supp. 942, 948 (N.D. Calif. 1958),
af 'd, Dickson v. Carmen, 270 F.2d 809 (9th Cir. 1958), cert. denied, 361
U.S. 934 (1960), rehearing denied, 361 U.S. 973 (1960); United States v.
La Plant, 156 F. Supp. 660, 662-663 (D. Mont. 1957).
99.
See note 10 supra.
100. See CONG. REc. S. 2129, 94th Cong., 1st Sess. 121 CONG. REc. 1269212693 (1975).
1976]
CONSTITUTIONAL LAW
between Indian and non-Indian defendants. The means by which
these bills, the "Criminal Justice Reform Act of 1975, '' 101 and
the "Indian Crimes Act of 1976, ' ' 102 purport to achieve that end
1 03
are substantially different.
S. 1104 proposes to rectify the present scheme by repealing the
statutes controlling criminal jurisdiction over both Indian and nonIndian criminal activity on reservations. This proposal would
absorb "Indian country" into the special federal territorial jurisdiction and thereby delete the current statutory exceptions accorded
crimes involving only Indians. 10 5 Such a sweeping reform would
result in a uniform application of offenses and penalties on reservations without regard to the unique legal status of the Indian. To
achieve this uniformity the bill expands the current list of thirteen
crimes which invoke federal jurisdiction on reservations to fortysix. 10 6 Furthermore, the Assimilative Crimes Act would be continued and thereby extend state law to cases involving only Indians.
The total effect of S. 1 would be the "wholesale expansion of federal
jurisdiction over criminal offenses committed on Indian reservations ....
,107 S. 1 provides that the federal criminal legislation
101. S.1, 94 Cong., 2d Sess. (1975)
[hereinafter referred to as S. 1].
102. S. 2129, 94 Cong., 2d Sess. (1975) [hereinafter referred to as S.
2129].
103. Another legislative proposal dealing with both civil and criminal
jurisdiction within Indian country, the "Indian Law Enforcement Improvement Act of 1975" (S. 2010, 94th Cong., 2d Sess. (1975)), is currently before
the Subcommittee on Indian Affairs of the Interior and Insular Affairs Committee. This pending legislation, although not directed toward the specific
problems of the Major Crimes Act, would affect jurisdiction on the reservations of the six states, which under Public Law 280 (see note 24 supra)
are now within state jurisdiction, by allowing for jurisdictional reacquisition by the tribes.
104. This bill, which is a monumental reform of the federal criminal
code, has been before the Judiciary Committee since October, 1975 (after
failure in the previous Session) and is under severe criticism. Senator
Mansfield, the Majority Leader, recently stated that unless the Act soon
progressed through committee, it would be dropped from the calendar.
105. 18 U.S.C. §§ 1152 and 1153 would be replaced by § 203 of S. 1
which states as follows:
Special Jurisdictionof the United States.
An offense is committed within the special jurisdiction of the
United States if it is committed within the special territorial jurisdiction. The special territorial jurisdiction of the United States includes: (3) the Indian country, to the extent provided under section 685 of the Criminal Justice Codification, Revision and Reform
Act of 1974 (25 U.S.C.
).
106. See generally S. 1. As noted, there are thirteen offenses enumerated under the Major Crimes Act.
107. Statement of Arthur Lazarus, Jr. before the Subcommittee on
Criminal Laws and Procedure of the Senate Committee on the Judiciary
in Opposition to Certain Provisions in S. 1 Relating to Indian Tribes, 2 In-
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[Vol. 9
is not pre-emptive, and unless otherwise expressly provided
it does not prevent an Indian tribe from exercising concurrent
jurisdiction.'0 8
S. 1 is opposed by Indian groups as having a "significant
adverse impact upon the continued vitality and utility of tribal
courts ..
."l9 It is feared that the jurisdiction now enjoyed by
the tribal courts, restricted only by the Major Crimes Act and the
general laws of the United States, would be placed in jeopardy.
The drastic changes of S. 1 belie not only the current federal
policy of promoting tribal self-government but also "the unique
status which historically has been accorded Indian tribes by the
Supreme Court and the Congress . . . as a separate people,
with the power of regulating their internal and social relations. . .. "110
Unlike S. 1, the second congressional proposal S. 2129,111
dian L. Rep. No. 5, 31, 34 (1975) [hereinafter referred to as "Lazarus Statement"].
108. S. 1, 94th Cong., 2d Sess. § 205 (1976).
109. Lazarus Statement at 36.
110. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173
(1973).
111.
On February 5, 1976, S. 2129, after passage in the Senate, was re-
ferred to the House Committee of the Judiciary. The bill which passed
the Senate reads as follows:
To provide for the definition and punishment of certain crimes in
accordance with the Federal laws in force within the special maritime and territorial jurisdiction of the United States when said
crimes are committed by an Indian in order to insure equal treatment for Indian and non-Indian offenders.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this Act
may be cited as the "Indian Crimes Act of 1976".
SEC. 2 Section 1153, title 18, United States Code, is amended
to read as follows:
§ 1153. Offenses committed within Indian country.
Any Indian who commits against the person or property of
another Indian or other person any of the following offenses,
namely, murder, manslaughter, kidnaping, rape, carnal knowledge
of any female, not his wife, who has not attained the age of sixteen
years, assault with intent to commit rape, incest, assault with intent
to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny
within the Indian country, shall be subject to the same laws and
penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
As used in this section, the offenses of burglary and incest
shall be defined and punished in accordance with the laws of the
State in which such offense was committed as are in force at the
time of such offense.
In addition to the offenses of burglary and incest, any other
of the above offenses which are not defined and punished by Federal law in force within the exclusive jurisdiction of the United
States shall be defined and punished in accordance with the laws
1976]
CONSTITUTIONAL LAW
would rectify the constitutional infirmities of the Major Crimes Act
through limited remedial legislation. The bill would delete the
statutory incorporation of state law for definition and punishment
of aggravated assault.1 1
Furthermore, the legislation would
amend the federal assault statute by addition of the specific offense
of "assault resulting in serious bodily injury." 113 The effect of S.
2129 would be to "revert the Major Crimes Act to its pre-1966 form
...
[of] insur[ing] equal treatment of Indians accused of committing aggravated assaults upon another Indian within Indian country.' 1 4 Through its continuation of the Major Crimes Act, without
its existing jurisdictional impediment, the bill reflects a congressional intent to perpetuate the prevailing policy of allowing the
tribal courts to retain jurisdiction over numerous minor offenses
involving only Indians.
Although either proposal would alleviate the equal protection
dilemma apparent in decisions like Big Crow, neither is totally consistent with the current emphasis on tribal development and selfgovernment. Inherent within each of the reforms is a continuation
of the philosophy that the tribal Indian is unable to cope with a
self-controlled system of criminal justice.
CONCLUSION
The constitutional invalidity of the Major Crimes Act, as highlighted in cases like Big Crow, and its disabling effect on reservation criminal justice should soon be rectified by congressional
action. However, one must ask if the current proposals are any
more than a myopic solution to an even deeper issue.
For over 140 years the federal government has recognized the
doctrine of tribal sovereignty. Attempts to dismantle that doctrine
and its attributes by programs designed to assimilate the Indian
tribes into the American society have resulted in dismal failures.
The current federal policy of self-determination emphasizes a
development of the Indian through his own sense of tribal attonomy and self-government. The issue of criminal justice is but one
of the State in which such offense was committed as are in force
at the time of such offense.
Sec. 3. Section 113 of title 18, United States Code, is amended
by adding at the end thereof the following new subsection:
(f) Assault resulting in serious bodily injury, by fine or not
more than $10,000 or imprisonment for not more than ten years,
or both.
112. S. 2129, § 2.
113. This was the specific offense charged in Big Crow.
114. 121 CONG. REc. § 12692 (July 16, 1975) (remarks of Senator Fannin).
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[Vol. 9
facet of the totality of that self-government. A rejection of the
continuing policy that the Indian is not capable of maintaining an
effective yet just system of criminal justice may be needed to
further the new national policy.
An alternative to the two existing proposals, which only
continue or further the restriction of tribal jurisdiction, would be a
territorial criminal jurisdiction scheme premised on a tribe's control of its people and its land.115 It is evident that there would
be many obstacles in the creation of such an expanded scheme of
tribal jurisdiction. However, problems such as sufficient funding,
maintaining a staff of qualified personnel, and correlating tribal
decisions with state and federal precedent could be overcome
through concerted efforts. If obstacles are encountered or a tribe is
hesitant to assume the responsibility, a partial implementation or a
variation of the plan could be enacted, or the federal government
could retain concurrent jurisdiction during a transitional period.
The possibility of an effective system of criminal justice rooted in
the culture and sovereignty of the tribe deserves the opportunity
to be pursued, and if deserving, to become reality. 116
David P. Senkel-'77
115. Exemplifying the feasibility of such a plan is the Najajo Tribe
which now possesses its own police force, courts, and judges. BROPHY &
ABERLE at 59.
116.
In support of this proposition see Chino, Should the Criminal Jus-
tice System be Different for Indians?, presented to Indian Civil Rights Hear-
ing in the Hearings before the United States Comm. on Civil Rights, held
in Albuquerque, N.M., 394, at 396 (Nov. 14-15, 1972), wherein the Indian
leader (Mr. Chino is President of the Mascalero Apache Tribe) recounts
the difficulty encountered by Indians in supporting the development of a
"foreign" court system and how the tribal courts have well served the Indian people.
The Indian tribes by the use of Indian Tribal Courts, the Court
of Indian offenses or the traditional Indian courts have demonstrated their ability to adopt and adapt themselves to the court
system that the Tribal customs and practices including tribal autonomy demanded. Based on these experiences of the Indian people in the various court systems, justice and fair play are not foreign to them.
Id. at 396.
To subject any people prematurely to any kind of system that is
alien to their own way of life-in this case a judicial systemwould be doing them a grave injustice and a great disservice.
Id. at 400.