''United States v. Kagama'', 118 U.S. 375 (1886), was a

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain Indian-on-Indian crimes, even if they were committed on an Indian reservation. Kagama, a

Yurok The Yurok (Karuk language: Yurúkvaarar / Yuru Kyara - "downriver Indian; i.e. Yurok Indian") are an Indigenous people from along the Klamath River and Pacific coast, whose homelands are located in present-day California stretching from Trinidad ...

Native American (Indian) accused of murder, was selected as a test case by the

Department of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a v ...

to test the constitutionality of the Act. The importance of the ruling in this case was that it tested the constitutionality of the Act and confirmed Congress's authority over Indian affairs.

Plenary power A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full"). United States In United States constitutional law, plenary p ...

over Indian tribes, supposedly granted to the U.S. Congress by the Commerce Clause of the Constitution, was not deemed necessary to support the Supreme Court in this decision. Instead, the Court found the power in the tribes' status as dependent domestic nations, which allowed Congress to pass the

Dawes Act The Dawes Act of 1887 (also known as the General Allotment Act or the Dawes Severalty Act of 1887) regulated land rights on tribal territories within the United States. Named after Senator Henry L. Dawes of Massachusetts, it authorized the Pre ...

the following year. The case has been criticized by legal scholars as drawing on powers that are not granted to Congress by the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

, but it remains

good law Good law is the concept in jurisprudence that a legal decision is still valid or holds legal weight. A good law decision has not been overturned (during an appeal In law, an appeal is the process in which cases are reviewed by a higher author ...

Background

Crow Dog and the Major Crimes Act of 1885

In 1881, a Brulé Lakota Sioux named

Crow Dog Crow Dog (also Kȟaŋǧí Šúŋka, Jerome Crow Dog; 1833 – August 1912) was a Brulé Lakota subchief, born at Horse Stealing Creek, Montana Territory. Family He was the nephew of former principal chief Conquering Bear, who was killed in 1854 in ...

killed his government-installed chief. Crow Dog was detained and tried for murder. However, he contended that the United States held no

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...

on the reservation. The Supreme Court agreed, confirming Crow Dog's assertion that they lacked jurisdiction because the crime occurred in Indian country between two Indians. In the opinion issued by

Justice Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...

Stanley Matthews Sir Stanley Matthews, CBE (1 February 1915 – 23 February 2000) was an English footballer who played as an outside right. Often regarded as one of the greatest players of the British game, he is the only player to have been knighted while stil ...

for the Supreme Court in ''

Ex parte Crow Dog ''Ex parte Crow Dog'', 109 U.S. 556 (1883), is a landmark decision of the Supreme Court of the United States that followed the death of one member of a Native American tribe at the hands of another on reservation land. Crow Dog was a member of th ...

'' in 1883, the Court implied that if Congress intended to exert legislative authority over these tribes they must pass an explicit law granting jurisdiction to the federal courts over Indian-on-Indian crime in Indian country, and then the Court would confirm its constitutionality. In response,

Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...

debated the need and importance of teaching Indians regard for the rule of law. Further, it was argued that if an Indian committed a crime he could be tried under the laws of the United States. Congress ultimately passed an addendum to the Indian Appropriations Act of March 3, 1885, more commonly known as the

Major Crimes Act The Major Crimes Act (U.S. Statutes at Large, 23:385) The Hoopa Valley Reservation was created by executive order in 1864. At the time the reservation was formed, three unique bands of Indian tribes lived on different parts of the

Klamath River The Klamath River (Karuk: ''Ishkêesh'', Klamath: ''Koke'', Yurok: ''Hehlkeek 'We-Roy'') flows through Oregon and northern California in the United States, emptying into the Pacific Ocean. By average discharge, the Klamath is the second larges ...

, each with its own language. The Yurok lived on the Lower Klamath, the

Karuk The Karuk people are an indigenous people of California, and the Karuk Tribe is one of the largest tribes in California. Karuks are also enrolled in two other federally recognized tribes, the Cher-Ae Heights Indian Community of the Trinidad Ran ...

occupied the Upper Klamath and the Hupa lived at the confluence of the Trinity and Klamath Rivers in

Humboldt County, California Humboldt County () is a county located in the U.S. state of California. As of the 2020 census, the population was 136,463. The county seat is Eureka. Humboldt County comprises the Eureka–Arcata–Fortuna, California Micropolitan Statistica ...

. The reservation was supposed to be a home for other tribes within the region. The tribes living along the river had long-established rules for property rights and ownership, including how property was to be passed down from one generation to the next. In some cases, families owned lands that were located a substantial distance from their "home" village. In charge of the reservation was the

Indian agent In United States history, an Indian agent was an individual authorized to interact with American Indian tribes on behalf of the government. Background The federal regulation of Indian affairs in the United States first included development of t ...

Major Major (commandant in certain jurisdictions) is a military rank of commissioned officer status, with corresponding ranks existing in many military forces throughout the world. When used unhyphenated and in conjunction with no other indicators ...

Charles Porter, who by commanding the local military

garrison A garrison (from the French ''garnison'', itself from the verb ''garnir'', "to equip") is any body of troops stationed in a particular location, originally to guard it. The term now often applies to certain facilities that constitute a mil ...

(

Fort Gaston Fort Gaston was founded on December 4, 1859, in the redwood forests of the Hoopa Valley, in Northern California, on the west bank of the Trinity River, from where the Trinity flows into the Klamath River. It was located in what is now the Hoopa ...

) on the reservation was charged with the ''de facto'' responsibility for the people on the reservation. Without legal authority and against government policy, Porter allotted small parcels of land to the local Indian people, thus upsetting an age-old property rights system among families in the Klamath River Valley. On several occasions, Agent Porter had been called out to Kagama and Iyouse's homes to mediate their property dispute. Shortly before the murder, Kagama requested title to the land upon which he built his home.

The crime and the path to the Supreme Court

On June 24, 1885, three months after the Major Crimes Act was passed, Kagama and his son Mahawaha went to Iyouse's house, where an argument ensued that resulted in the death by

stabbing A stabbing is penetration or rough contact with a sharp or pointed object at close range. ''Stab'' connotes purposeful action, as by an assassin or murderer, but it is also possible to accidentally stab oneself or others. Stabbing differs from ...

of Iyouse. Mahawaha reportedly held Iyouse's wife while Kagama stabbed Iyouse. Agent Porter moved quickly to detain both Kagama and Mahawaha on murder charges. He informed both federal and state authorities. The local

district attorney In the United States, a district attorney (DA), county attorney, state's attorney, prosecuting attorney, commonwealth's attorney, or state attorney is the chief prosecutor and/or chief law enforcement officer representing a U.S. state in a l ...

declined to prosecute, citing a policy of not prosecuting crimes between Indians. The U.S. Attorney for Northern California forcefully prosecuted the case. On October 18, 1885, both Kagama and Mahawaha were taken to

San Francisco San Francisco (; Spanish language, Spanish for "Francis of Assisi, Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the List of Ca ...

for trial, after having been

indicted An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of an ...

for murder. The indictment charged that the crime occurred on the reservation, even though it was later determined at the trial to have occurred outside the reservation boundaries to the north. Because the crime supposedly occurred on the Hoopa Valley Reservation, the U.S. Attorney and the

Bureau of Indian Affairs The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and A ...

(BIA) fully supported the jurisdictional shift to the federal government and were immediately prepared to prosecute the case in federal courts. Challenges to the

subject matter jurisdiction Subject-matter jurisdiction (also called jurisdiction ''ratione materiae')'' is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority ...

were heard before the circuit court in early October 1885. Circuit Judge Lorenzo Sawyer and District Court Judge George Sabin heard the challenge but disagreed on the law. The case received a "

certificate of division A certificate of division was a source of appellate jurisdiction from the circuit courts to the Supreme Court of the United States from 1802 to 1911. Created by the Judiciary Act of 1802, the certification procedure was available only where the c ...

" resulting in the case being forwarded to the Supreme Court later in October. Since this case challenged the authority of the federal courts to try Indian-on-Indian crime, this case was heard as an

interlocutory appeal An interlocutory appeal (or interim appeal), in the law of civil procedure in the United States, occurs when a ruling by a trial court is appealed while other aspects of the case are still proceeding. Interlocutory appeals are allowed only under sp ...

, meaning that the Supreme Court would have to decide the constitutionality of the claimed jurisdiction before Kagama could be tried for the killing of Iyouse in federal court.

Supreme Court

Arguments

Kagama was represented by 27-year-old Joseph D. Redding. The United States was represented by

George A. Jenks George Augustus Jenks (March 26, 1836 – February 10, 1908) was a politician from Pennsylvania. He served in Congress and as Solicitor General of the United States. Life and career George Jenks was born in Punxsutawney, Pennsylvania, on March ...

, who was an Assistant

United States Secretary of the Interior The United States secretary of the interior is the head of the United States Department of the Interior. The secretary and the Department of the Interior are responsible for the management and conservation of most federal land along with natural ...

. Arguments were heard before the Supreme Court on May 2, 1886, only five months after the circuit court delivered a split opinion on the matter of jurisdiction. Jenks urged the court to look to its earlier ruling in ''Crow Dog'', where the Court commented in ''

dicta In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal term ...

'' that Congress possessed the authority to regulate all commerce with Indian tribes, because of the

Indian Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among ...

of the

. In his listing of precedents, he cited numerous laws passed by Congress regulating Indian commerce; he did not cite any other case law that supported Congress' authority over internal Indian matters, because there was none. Further, Jenks incorporated aspects of the political debate in Congress when the act was passed citing that the U.S. should be able to enforce its laws within its borders, regardless of treaty rights. The prosecution argued that Congress had the absolute authority to regulate Indians and their affairs. Joseph Redding defended his clients vigorously. His argument was three-fold. First he argued that in one hundred years of Indian policy, Congress had never prosecuted Indian-on-Indian crime. Further, the indictment as stated contained no element of commerce and was therefore outside the purview of Congress to legislate such a law. Finally, he argued that such a profound shift in Indian policy should not be enacted in a law whose heading and body were wholly inconsistent with the intent of the Major Crimes Act. In effect, he argued that such a law governing a people should be debated in full sight of the American public and on its own merits. Redding argued that Congress could not assert power over sovereign people who, when making treaties to cede land, reserved certain rights to themselves. He did not raise the issue that the tribes already did have a system of law that dealt with crimes against another person.

Opinion of the Court

In a unanimous decision issued at the end of May 1886, and authored by Justice

Samuel Freeman Miller Samuel Freeman Miller (April 5, 1816 – October 13, 1890) was an American lawyer and physician who served as an Associate Justice of the Supreme Court of the United States, associate justice of the United States Supreme Court, U.S. Supreme ...

, the Supreme Court ruled that the Major Crimes Act was constitutional, and, therefore, the case was within the jurisdiction of the federal courts. Miller dismissed the argument that the Act was proper under the Indian Commerce Clause, noting that the case did not present a commerce issue. He held instead that it was necessary since Indians were wards of the United States. Justice Miller was known for writing opinions that supported federal power over state's rights. This ruling meant that the federal circuit court's indictment would stand and the case would proceed to trial back in Northern California. The opinion drew heavily on the language of the Solicitor General's brief, which by today's standards would be considered by many as racially charged. The language in Miller's opinion is infamous for its description of Indian tribes as weak, degraded and dependent on the federal government for support. He adopts language from ''

Cherokee Nation v. Georgia ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...

'' describing each tribe as a "ward" and in a state of "pupilage." Miller, having dismissed the Indian Commerce Clause as a source of authority, did not cite another constitutional source of the power. In effect, this decision contended that the U.S. government had supreme authority to enforce laws within its borders, but did not mention where this power was outlined in the Constitution. From the time the crime occurred to the Supreme Court decision, eleven months had passed.

Subsequent developments

Trial of Kagama

The trial was held in San Francisco in September 1886. The prosecution called four witnesses, including Iyouse's wife and a witness to the murder named "Charlie". The defense called one witness, John B. Treadwell. Treadwell testified that the murder was outside the boundaries of the reservation. Based on Treadwell's position within the

General Land Office The General Land Office (GLO) was an independent agency of the United States government responsible for public domain lands in the United States. It was created in 1812 to take over functions previously conducted by the United States Department o ...

, the judge believed him and ordered a

directed verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, ...

of not guilty. Humboldt County Sheriff T. M. Brown stated that he would not arrest Kagama for a crime against another Indian. Brown stated that in his 26 years of law enforcement in the area, the state had never prosecuted an Indian for Indian-on-Indian crime. Brown also said that Kagama was trustworthy and industrious, while the victim was a "treacherous" blackmailer who had already killed several men. The sheriff believed that Kagama did not have any option but to kill the victim.

Consequences and criticism of the decision

''Kagama'' was the case that articulated Congress'

plenary power A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full"). United States In United States constitutional law, plenary p ...

over the Native American tribes in the late 19th century. It reaffirmed Congress' power to pass legislation, including the

, that would take away many of the liberties that Native Americans had been able to hold on to up until that point. 19th and early 20th century U.S. lawmakers viewed the American Indians as inferior people who would benefit from being assimilated into the Euro-American culture. The laws that followed the ''Kagama'' ruling were attempts to destroy the Native American cultural differences and force these tribes to share the Euro-American culture viewed by these lawmakers to be the superior culture. The decision has been widely criticized by legal scholars.

David E. Wilkins David E. Wilkins, a citizen of the Lumbee Nation, is a political scientist specializing in federal Indian policy and law. He is the E. Claiborne Robins Distinguished Professor in Leadership Studies at the Jepson School of Leadership Studies in t ...

noted that if the Indian Commerce Clause or Taxation Clause did not contain the authority, and the tribes had not granted it by treaty or consent, then the Major Crimes Act would be unconstitutional and the Court should have declared it void. Phillip P. Frickey describes the ''Kagama'' decision as "a whirlwind of circular reasoning", with the Court justifying congressional power due to the tribe's weakness, which it also noted was due to the tribes dealing with the U.S. government. Frickey felt the decision was an embarrassment to constitutional theory, to logic, and to humanity. Robert N. Clinton stated that " /nowiki>his remarkable decision obviously invoked rhetoric of colonial expansion, rather than the rhetoric of American constitutional discourse." Daniel L. Rotenberg said that ''Kagama'' was "one more item on the long litany of injustices to the American Indian." In addition to the law professors, various other authors in

law reviews A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pro ...

have also been critical of the decision. Warren Stapleton, in the

Arizona State University Arizona State University (Arizona State or ASU) is a public research university in the Phoenix metropolitan area. Founded in 1885 by the 13th Arizona Territorial Legislature, ASU is one of the largest public universities by enrollment in the ...

law journal, has stated that the decision was incorrect and that the Major Crimes Act is in fact unconstitutional. In a Comment, the

University of Pennsylvania The University of Pennsylvania (also known as Penn or UPenn) is a private research university in Philadelphia. It is the fourth-oldest institution of higher education in the United States and is ranked among the highest-regarded universitie ...

Law Review noted that "the Court promulgated what can be called the 'it-must-be-somewhere' doctrine ..." ''Kagama'' remains

, being cited in support of the plenary power doctrine as recently as 2004 in ''

United States v. Lara ''United States v. Lara'', 541 U.S. 193 (2004), was a United States Supreme Court landmark case which held that both the United States and a Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in bo ...

'' by the Supreme Court, and cited in 2015 by the 6th Circuit. Although one legal scholar, Matthew L.M. Fletcher, states that the apex of the doctrine was reached in 1955, in '' Tee-Hit-Ton Indians v. United States'', he also acknowledges that the doctrine is still current law. In 2010,

Pawnee Pawnee initially refers to a Native American people and its language: * Pawnee people * Pawnee language Pawnee is also the name of several places in the United States: * Pawnee, Illinois * Pawnee, Kansas * Pawnee, Missouri * Pawnee City, Nebraska * ...

lawyer Walter Echo-Hawk wrote in his book, ''

In the Courts of the Conqueror ''In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided'' is a 2010 legal non-fiction book by Walter R. Echo-Hawk, a Justice of the Supreme Court of the Pawnee Nation, an adjunct professor of law at the University of Tulsa C ...

'', that ''Kagama'' has been used:

justify excessive government intrusion into the internal affairs of Indian tribes and to exercise unwarranted control over the lives and property of American Indians in a slide towards despotism ... e creation of frightening, state-run, Orwellian societies on Indian reservations was perfectly legal in the courts of the conqueror, because it was done in the name of guardianship.

199 (2010).

Footnotes

Notes

External links

* * {{DEFAULTSORT:United States V. Kagama United States Supreme Court cases United States Supreme Court cases of the Waite Court United States Native American criminal jurisdiction case law 1886 in United States case law Criminal cases in the Waite Court Yurok History of Humboldt County, California Native American history of California