Petitioner, an Indian, was convicted of assault with intent to
commit serious bodily injury on an Indian reservation, a federal
crime under the Major Crimes Act of 1885, after the court refused
to instruct the jury on the lesser included offense of simple
assault. The Court of Appeals affirmed on the ground that, since
simple assault is not one of the offenses enumerated in the Act, it
would be exclusively "a matter for the tribe."
An Indian prosecuted in federal court under the
Act is entitled to a jury instruction on lesser included offenses
if the facts warrant. Such an instruction would not expand the
reach of the Act or permit the Government to infringe the residual
jurisdiction of the Indian tribes by bringing in federal court
prosecutions not authorized by statute. Pp. 412 U. S.
459 F.2d 757 and 762, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
BURGER, C.J., and DOUGLAS, WHITE, MARSHALL, and BLACKMUN, JJ.,
joined. STEWART, J., filed a dissenting opinion, in which POWELL
and REHNQUIST, JJ., joined, post,
p. 412 U. S.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The Major Crimes Act of 1885 [Footnote 1
] authorizes the prosecution in federal court of
an Indian charged with the commission
Page 412 U. S. 206
on an Indian reservation of certain specifically enumerated
offenses. [Footnote 2
case requires us to decide whether an Indian prosecuted under the
Act is entitled to a jury instruction on a lesser included offense
where that lesser offense is not one of the crimes enumerated in
At the close of petitioner's trial for assault with intent to
commit serious bodily injury, the United States District Court for
the District of South Dakota refused to instruct the jury, as
petitioner requested, that they might convict him of simple
assault. The court reasoned that, since simple assault is not an
offense enumerated in the Act, it is exclusively "a matter for the
tribe." App. 15. A panel of the United States Court of Appeals for
the Eighth Circuit, one judge dissenting, upheld that determination
on the strength of the court's earlier decision
Page 412 U. S. 207
in Kills Crow v. United States,
451 F.2d 323 (1971).
459 F.2d 757 (1972). Following a remand to the District Court for a
hearing on an unrelated issue, [Footnote 3
] the case returned to the Court of Appeals and
the conviction was affirmed. Id.
at 762 (supplemental
opinion). We granted certiorari limited to the question of the
validity of denying the requested instruction, [Footnote 4
] 409 U.S. 1037 (1972), and we
The events that led to the death of petitioner's brother-in law,
Robert Pomani, and hence to this criminal prosecution, took place
on the South Dakota Reservation of the Crow Creek Sioux Tribe.
Petitioner and the deceased, both Indians of that Tribe, spent the
evening of March 6, 1971, drinking and quarreling over petitioner's
alleged mistreatment of his wife, Pomani's sister. The argument
soon became violent, and it ended only when petitioner, having
beaten Pomani severely and left him bleeding from the head and
face, went to bed. The next morning, he discovered Pomani's
lifeless body on the ground a short distance from the house where
the beating had occurred. He reported the death to an official of
the Department of the Interior serving as Captain of the Tribal
Police at Fort Thompson, South Dakota. An autopsy revealed that
Pomani died because of exposure to excessive cold, although the
beating was a contributing factor. Petitioner was convicted of
assault with intent to inflict great bodily injury, and sentenced
to five years' imprisonment.
Page 412 U. S. 208
Although the lesser included offense doctrine developed at
common law to assist the prosecution in cases where the evidence
failed to establish some element of the offense originally charged,
] it is now beyond
dispute that the defendant is entitled to an instruction on a
lesser included offense if the evidence would permit a jury
rationally to find him guilty of the lesser offense and acquit him
of the greater. The Federal Rules of Criminal Procedure deal with
lesser included offenses, see
Rule 31(c), [Footnote 6
] and the defendant's right to such
an instruction has been recognized in numerous decisions of this
Court. See, e.g., Sansone v. United States, 380 U.
, 380 U. S. 349
(1965); Berra v. United States, 351 U.
, 351 U. S. 134
(1956); Stevenson v. United States, 162 U.
In defending the trial court's refusal to offer the requested
instruction, the Government does not dispute this general
proposition, nor does it argue that a lesser offense instruction
was incompatible with the evidence presented at trial. Cf.
Sansone v. United States, supra; Sparf v. United States,
156 U. S. 51
156 U. S. 63
( 1895). On the contrary, the Government explicitly concedes that
any non-Indian who had committed this same act on this same
reservation and requested this same
Page 412 U. S. 209
instruction would have been entitled to the jury charge that
petitioner was refused. Brief for the United States 13 n. 16.
] The Government
does maintain, however, that the Major Crimes Act precludes the
District Court from offering a lesser offense instruction on behalf
of an Indian, such as the petitioner before us. Specifically, the
Government contends that the Act represents a carefully limited
intrusion of federal power into the otherwise exclusive
jurisdiction of the Indian tribes to punish Indians for crimes
committed on Indian land. To grant an instruction on the lesser
offense of simple assault would, in the Government's view, infringe
the tribe's residual jurisdiction in a manner inconsistent with the
Act. Under the Government's approach, in other words, the interests
of an individual Indian defendant in obtaining a jury instruction
on a lesser offense must fall before the congressionally sanctioned
interests of the tribe in preserving its inherent jurisdiction.
Since that conclusion is compelled neither by the language nor the
purposes nor the history of the Act, we cannot agree.
The Major Crimes Act was passed by Congress in direct response
to the decision of this Court in Ex parte Crow Dog,
109 U. S. 556
(1883). The Court held there that a federal court lacked
jurisdiction to try an Indian for the murder of another Indian, a
chief of the Brule Sioux named Spotted Tail, in Indian country.
Although recognizing the power of Congress to confer such
jurisdiction on the federal courts, [Footnote 9
] the Court reasoned that, in
Page 412 U. S. 210
the absence of explicit congressional direction, the Indian
tribe retained exclusive jurisdiction to punish the offense.
Cf. Talton v. Mayes, 163 U. S. 376
6 Pet. 515 (1832).
The prompt congressional response -- conferring jurisdiction on
the federal courts to punish certain offenses -- reflected a view
that tribal remedies were either nonexistent or incompatible with
principles that Congress thought should be controlling.
Representative Cutcheon, sponsor of the Act, described the events
that followed the reversal by this Court of Crow Dog's
"Thus, Crow Dog went free. He returned to his reservation,
feeling, as the Commissioner says, a great deal more important than
any of the chiefs of his tribe. The result was that another murder
grew out of that -- a murder committed by Spotted Tail, Jr., upon
White Thunder. And so these things must go on unless we adopt
proper legislation on the subject."
"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. . . ."
"If . . . an Indian commits a crime against an Indian on an
Indian reservation, there is now no law to punish the offense
except, as I have said, the
Page 412 U. S. 211
law of the tribe, which is just no law at all."
16 Cong.Rec. 934 (1885). [Footnote 10
] The Secretary of the Interior, who supported
the Act, struck a similar note:
"If offenses of this character [the killing of Spotted Tail]
cannot be tried in the courts of the United States, there is no
tribunal in which the crime of murder can be punished. Minor
offenses may be punished through the agency of the 'court of Indian
offenses,' but it will hardly do to leave the punishment of the
crime of murder to a tribunal that exists only by the consent of
the Indians of the reservation. If the murderer is left to be
punished according to the old Indian custom, it becomes the duty of
the next of kin to avenge the death of his relative by either
killing the murderer or some one of his kinsmen. . . . [Footnote 11
In short, Congress extended federal jurisdiction to crimes
committed by Indians on Indian land out of a conviction that many
"be civilized a great deal sooner by being put under [federal
criminal] laws and taught to regard life and the personal property
Page 412 U. S. 212
16 Cong.Rec. 936 (188) (remarks of Rep. Cutcheon). That is
emphatically not to say, however, that Congress intended to deprive
Indian defendants of procedural rights guaranteed to other
defendants, or to make it easier to convict an Indian than any
other defendant. Indeed, the Act expressly provides that Indians
charged under its provisions
"shall be tried in the same courts, and in the same
as are all other persons committing any of the above
crimes within the exclusive jurisdiction of the United States."
18 U.S.C. § 3242 (emphasis added). [Footnote 12
] In the face of that explicit statutory
direction, we can hardly conclude that Congress intended to
disqualify Indians from the benefits of a lesser offense
instruction when those benefits are made available to any
non-Indian charged with the same offense.
Moreover, it is no answer to petitioner's demand for a jury
instruction on a lesser offense to argue that a defendant may be
better off without such an instruction. True, if the prosecution
has not established beyond a reasonable doubt every element of the
offense charged, and if no lesser offense instruction is offered,
the jury must, as a theoretical matter, return a verdict of
acquittal. But a defendant is entitled to a lesser offense
instruction -- in this context or any other -- precisely because he
should not be exposed to the substantial risk that the jury's
practice will diverge from theory. Where one of
Page 412 U. S. 213
the elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely to
resolve its doubts in favor of conviction. In the case before us,
for example, an intent to commit serious bodily injury is a
necessary element of the crime with which petitioner was charged,
but not of the crime of simple assault. Since the nature of
petitioner's intent was very much in dispute at trial, the jury
could rationally have convicted him of simple assault if that
option had been presented. But the jury was presented with only two
options: convicting the defendant of assault with intent to commit
great bodily injury, or acquitting him outright. We cannot say that
the availability of a third option -- convicting the defendant of
simple assault -- could not have resulted in a different verdict.
Indeed, while we have never explicitly held that the Due Process
Clause of the Fifth Amendment guarantees the right of a defendant
to have the jury instructed on a lesser included offense, it is
nevertheless clear that a construction of the Major Crimes Act to
preclude such an instruction would raise difficult constitutional
questions. In view of our interpretation of the Act, those are
questions that we need not face. [Footnote 13
Page 412 U. S. 214
Finally, we emphasize that our decision today neither expands
the reach of the Major Crimes Act nor permits the Government to
infringe the residual jurisdiction of a tribe by bringing
prosecutions in federal court that are not authorized by statute.
] We hold only
that, where an Indian is prosecuted in federal court under the
provisions of the Act, the Act does not require that he be deprived
of the protection afforded by an instruction on a lesser included
offense, assuming of course that the evidence warrants such an
instruction. No interest of a tribe is jeopardized by this
decision. Accordingly, the judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
Reversed and remanded.
Page 412 U. S. 215
Act of Mar. 3, 1885, c. 341, § 9, 23 Stat. 385, now 18 U.S.C. §§
As originally enacted, the statute provided:
"That immediately upon and after the date of the passage of this
act all Indians, committing against the person or property of
another Indian or other person any of the following crimes, namely,
murder manslaughter, rape, assault with intent to kill, arson,
burglary, and larceny within any Territory of the United States,
and either within or without an Indian reservation, shall be
subject therefor to the laws of such Territory relating to said
crimes, and shall be tried therefor in the same courts and in the
same manner and shall be subject to the same penalties as are all
other persons charged with the commission of said crimes,
respectively; and the said courts are hereby given jurisdiction in
all such cases; and all such Indians committing any of the above
crimes against the person or property of another Indian or other
person within the boundaries of any State of the United States, and
within the limits of any Indian reservation, shall be subject to
the same laws, tried in the same courts and in the same manner, and
subject to the same penalties as are all other persons committing
any of the above crimes within the exclusive jurisdiction of the
23 Stat. 385. By successive amendments, Congress has increased
the number of enumerated crimes from seven to 13, adding carnal
knowledge, assault with intent to commit rape, incest, assault with
a dangerous weapon, assault resulting in serious bodily injury, and
The case was remanded to the District Court for a hearing on the
voluntariness of petitioner's confession, in light of the
requirements of 18 U.S.C. § 3501. On remand, the District Court
concluded that the confession was voluntary, notwithstanding a
lapse of time between petitioner's arrest and his confession.
The petition for certiorari also asked us to consider the
validity of admitting petitioner's confession in view of the
requirements of Fed.Rule Crim.Proc. 5(a).
See Kelly v. United States,
125 U.S.App.D.C. 205, 207,
370 I;.2d 227, 229 (1966); United States v. Markis,
F.2d 860, 866 (CA2 1965); 2 C. Wright, Federal Practice and
Procedure -- Criminal § 515, p. 372 (1969).
Rule 31(c) provides that
"[t]he defendant may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either
the offense charged or an offense necessarily included therein if
the attempt is an offense."
The rule codified preexisting law, in particular former § 565 of
Tit. 18, Act of June 1, 1872, § 9, 17 Stat.198. See Berra v.
United States, 351 U. S. 131
351 U. S. 134
and n. 6 (1956).
See also, e.g., Government of Virgin Islands v.
422 F.2d 95, 100 (CA3 1970); United States v.
137 U.S.App.D.C. 214, 218, 421 F.2d 1149, 1153
If a non-Indian had committed this same act on an Indian
reservation, he would, of course, be tried in federal court under
federal enclave law. 18 U.S.C. § 1152.
The constitutionality of the Major Crimes Act was upheld in
United States v. Kagama, 118 U. S. 375
(1886), where the Court rejected the argument that punishment of
criminal offenses by Indians on Indian land is exclusively a state
The same congressional purpose is evident in the most recent
amendment to the Act, the 1968 addition to the list of enumerated
crimes of the offense of assault resulting in serious bodily
S.Rep. No. 721, 90th Cong., 1st Sess., 32
"Without this amendment, an Indian can commit a serious crime
and receive only a maximum sentence of 6 months. Since Indian
courts cannot impose more than a 6-month sentence, the crime of
aggravated assault should be prosecuted in a Federal court, where
the punishment will be in proportion to the gravity of the
The remark, from the Secretary's annual report, was quoted by
Representative Cutcheon during debate in the House of
Representatives on the proposed statute. 16 Cong.Rec. 935
In making the most recent amendment to the Major Crimes Act,
Congress neglected to add the offense of assault
resulting in serious bodily injury to both of the sections in which
the Act is now codified. The Government concedes that the failure
to add this new offense to the list of those enumerated in 18
U.S.C. § 3242 is "probably a congressional oversight." Brief for
the United States 18 n. 17. In any case, Congress plainly did not
intend to provide a special rule for the trial of Indians charged
with assault resulting in serious bodily injury.
Similarly, in view of our conclusion that the trial court erred
in denying the requested instruction, we need not decide whether an
apparent defect in the indictment -- a defect to which petitioner
did not object -- provides an independent ground for reversal. The
Major Crimes Act provides that an Indian may be tried in federal
court for the offense of assault resulting in serious bodily
injury. The statute further provides that this offense "shall be
defined and punished in accordance with the laws of the State in
which such offense was committed." Petitioner was not charged,
however, with assault resulting in serious bodily injury, but
rather with assault with intent to commit serious bodily injury.
S.D.Comp.Laws Ann. § 22-112 (1967). The South Dakota
criminal code does not specifically proscribe the offense of
assault resulting in serious bodily injury. Whether the prosecution
should have been required to prove not only that the petitioner
intended to commit serious bodily injury, but also that the assault
resulted in serious bodily injury, is a question we do not now
The Government argues that
"[t]he ruling petitioner seeks would, under the principle of
mutuality, empower federal prosecutors, dissatisfied with the
leniency of tribal courts, to prosecute in marginal cases, knowing
that, if the major offense is not proved the penalty for the minor
offense would be more substantial than in the tribal courts."
Brief for the United States 22. The lower courts have often held
that a defendant is entitled to an instruction on a lesser included
offense only in circumstances where the prosecution could also ask
for such an instruction. See, e.g., Kelly v. United
125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966).
That is the principle of mutuality to which the Government refers.
Nevertheless, Judge Wilkey, speaking for a panel of the Court of
Appeals for the District of Columbia Circuit, recently concluded
"despite the patina of antiquity, considerations of justice and
good judicial administration warrant dispensing with mutuality as
an essential prerequisite to the defense's right to a lesser
included offense charge."
United States v. Whitaker,
144 U.S.App.D.C. 344, 351,
447 F.2d 314, 321 (1971). Whether that conclusion is sound, at
least in the special situation presented by the case before us, is
a question that we need not now decide.
MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL and MR.
JUSTICE REHNQUIST join, dissenting.
As the opinion of the Court demonstrates, the Major Crimes Act,
18 U.S.C. §§ 1153, 3242, was enacted in response to this Court's
decision in Ex Parte Crow Dog, 109 U.
. The Act conferred jurisdiction upon federal
district courts over certain enumerated crimes committed by Indians
on an Indian reservation, leaving tribal jurisdiction intact as to
all other crimes. An Indian tried in a federal court under the Act
is guaranteed equal procedural rights, 18 U.S.C. § 3242, including
the benefits and burdens of Fed.Rule Crim.Proc. 31(c), dealing with
a lesser included offense.
In these respects, I agree with the Court. But the Court goes on
"that, where an Indian is prosecuted in federal court under the
provisions of the Act, the Act does not require that he be deprived
of the protection afforded by an instruction on a lesser included
offense. . . ."
at 412 U. S. 214
I think this holding would be correct only if the lesser included
offense were one over which the federal court had jurisdiction.
Because the trial court did not have jurisdiction over the "lesser
included offense" in the present case, I must respectfully dissent.
It is a commonplace that federal courts are courts of limited
jurisdiction, and that there are no common law offenses against the
"The legislative authority of the Union must first make an act a
crime, affix a punishment to it, and declare the Court that shall
have jurisdiction of the offence."
United States v.
7 Cranch 32, 11
U. S. 34
"It is axiomatic that statutes creating and defining crimes
cannot be extended by intendment, and that no act, however
wrongful, can be punished under such a statute unless clearly
within its terms.
Page 412 U. S. 216
Todd v. United States, 158 U. S.
, 158 U. S. 282
1 J. Moore, Federal Practice � O.60. And it is also clear that
simple assault by an Indian on an Indian reservation, the purported
'lesser included offense' in this case, comes within no federal
jurisdictional statute. The Court, in effect, holds that Fed.Rule
Crim.Proc. 31(c) implicitly operates to confer federal jurisdiction
over simple assault in the circumstances of this case, and with all
respect this seems to me a holding utterly without support."
The Rule states that:
"The defendant may be found guilty of an offense necessarily
included in the offense charged or of an attempt
either the offense charged or an offense necessarily included
therein if the attempt is an offense.
(Emphasis added.) The Rule is thus phrased in terms of
"offenses." It seems to me clear that "offense" means federal
offense, and this view is confirmed by the fact that, by virtue of
the Rule, a lesser included offense instruction is authorized with
respect to "an attempt" only where the attempt itself is also a
The conclusion that a lesser included offense instruction is
possible only when the lesser offense is within federal
jurisdiction does not violate 18 U.S.C. § 3242, providing that
Indians charged under its provisions
"shall be tried in the same courts, and in the same manner, as
are all other persons committing any of the above crimes within the
exclusive jurisdiction of the United States."
For this conclusion would apply as well in any instance where
Congress has established a divided criminal jurisdiction between a
federal district court and another forum. See, e.g., DeFlumer
443 F.2d 940 (criminal jurisdiction in federal
district court over 16-year-old defendants only when charged with
certain enumerated crimes). Congress established jurisdiction
Page 412 U. S. 217
in the federal district courts only over certain specifically
enumerated offenses committed by Indians on Indian reservations. It
vested a residual jurisdiction in other forums over all other
offenses. Accordingly, I conclude that a lesser included offense
instruction would have been improper in the present case, where the
federal court had no jurisdiction over the lesser offense of simple
assault. [Footnote 2/2
Kills Crow v. United States,
451 F.2d 323, 325.
The Court seems to agree that a United States Attorney could not
seek an indictment in a federal district court of an Indian for
simple assault committed on an Indian reservation. This being so, I
can find no basis for concluding that jurisdiction comes into being
simply by motion of the defense.
"It needs no citation of authorities to show that the mere
consent of parties cannot confer upon a court of the United States
the jurisdiction to hear and decide a case."
People's Bank v. Calhoun, 102 U.
, 102 U. S.
-261. See also
1 J. Moore, Federal Practice
� O.60. Were the petitioner's motion for an instruction on
simple assault to be granted, and were a jury to convict on that
offense, I should have supposed until the Court's decision today
that the conviction could have been set aside for want of
The Court does not reach any other possible ground for reversing
this conviction, and, accordingly, neither do I.
The petitioner was not charged with "assault resulting in
serious bodily injury," the offense specified in the Major Crimes
Act, but instead with assault with intent to commit serious bodily
injury, S.D.Comp.Laws Ann. 22-18-12 (1967). This was apparently
because the Major Crimes Act provides that "assault resulting in
serious bodily injury" is to be "defined and punished in accordance
with the laws of the State in which such offense was committed."
Since South Dakota appears to have no statute identically matching
the offense described in the Major Crimes Act, § 22-18-12 of the
South Dakota Laws was relied upon to prosecute the offense charged
here. See also Kills Crow v. United States,
451 F.2d 323.
In a case where no serious bodily injury occurred, a defendant
might well argue that his prosecution under this state law
definition is no more under the jurisdiction of a federal district
court than would be a prosecution for simple assault.