Lands designated as a reservation for Choctaw Indians residing
in central Mississippi.
held, on the basis of the history
of the relations between the Mississippi Choctaws and the United
States, to be "Indian country," as defined in 18 U.S.C. § 1151
(1976 ed.) to include "land within the limits of any Indian
reservation under the jurisdiction of the United States
Government," and as used in the Major Crimes Act, 18 U.S.C. § 1153,
which makes any Indian who commits certain specified offenses
"within the Indian country . . . subject to the same laws and
penalties as all other persons committing [such] offenses, within
the exclusive jurisdiction of the United States."
Neither the fact that the Choctaws in Mississippi are merely a
remnant of a larger group of Indians nor the fact that federal
supervision over them has not been continuous affects the federal
power to deal with them under these statutes. Hence, the Major
Crimes Act provided a proper basis for federal prosecution of a
Choctaw Indian for assault with intent to kill (one of the
specified offenses) occurring on such lands, and Mississippi had no
power similarly to prosecute him for the same offense. Pp.
437 U. S.
638-654.
No. 77-836, 560 F.2d 1202, reversed and remanded; No. 77-575,
347 So. 2d
959, reversed.
BLACKMUN, J., delivered the opinion for a unanimous Court.
Page 437 U. S. 635
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
These cases present issues concerning state and federal
jurisdiction over certain crimes committed on lands within the area
designated as a reservation for the Choctaw Indians residing in
central Mississippi. More precisely, the questions presented are
whether the lands are "Indian country," as that phrase is defined
in 18 U.S.C. § 1151 (1976 ed.) and as it was used in the Major
Crimes Act of 1885, being § 9 of the Act of Mar. 3, 1885, 23 Stat.
385, later codified as 18 U.S.C. § 1153, and, if so, whether these
federal statutes operate to preclude the exercise of state criminal
jurisdiction over the offenses.
I
In October 1975, in the Southern District of Mississippi, Smith
John [
Footnote 1] was indicted
by a federal grand jury for assault with intent to kill Artis
Jenkins, in violation of 18 U.S.C. §§ 1153 and 113(a). [
Footnote 2] He was tried before a jury
and, on
Page 437 U. S. 636
December 15, was convicted of the lesser included offense of
simple assault. [
Footnote 3] A
sentence of 90 days in a local jail-type institution and a fine of
$300 were imposed. On appeal, the United States Court of Appeals
for the Fifth Circuit, considering the issue on its own motion,
see App. to Pet. for Cert. in
Page 437 U. S. 637
No. 77-836, p. 39A, ruled that the District Court was without
jurisdiction over the case because the lands designated as a
reservation for the Choctaw Indians residing in Mississippi, and on
which the offense took place, were not "Indian country," and that,
therefore, § 1153 did not provide a basis for federal prosecution.
560 F.2d 1202, 1205-1206 (1977). The United States sought review,
and we granted its petition for certiorari in No. 77-836. 434 U.S.
1032 (1978).
In April, 1976, Smith John [
Footnote 4] was indicted by a grand jury of Leake County,
Miss., for aggravated assault upon the same Artis Jenkins, in
violation of Miss.Code Ann § 97-37(2) (Supp. 1977). The incident
that was the subject of the state indictment was the same as that
to which the federal indictment related. A motion to dismiss the
charge on the ground the federal jurisdiction was exclusive was
denied. John was tried before a jury in the Circuit Court of Leake
County, and, in May, 1976, was convicted of the offense charged. He
was sentenced to two years in the state penitentiary. On appeal,
the Supreme Court of Mississippi, relying on its earlier decision
in
Tubby v. State, 327 So. 2d
272 (1976), and on the decision of the United States Court of
Appeals for the Fifth Circuit in
United States v. State Tax
Comm'n, 505 F.2d 633 (1974),
rehearing denied, 535
F.2d 300,
rehearing en banc denied, 541 F.2d 469 (1976),
held that the United States District Court had had no jurisdiction
to prosecute Smith John, and that, therefore, his arguments against
state court jurisdiction were without merit.
347 So. 2d
959 (1977). Characterizing the case as one falling within this
Court's jurisdiction under 28 U.S.C. § 1257(2) (1976 ed.), Smith
John filed notice of an appeal in No. 77-575. We
Page 437 U. S. 638
postponed jurisdiction, 434 U.S. 1032 (1978). We now note
jurisdiction.
Antoine v. Washington, 420 U.
S. 194 (1975);
McClanahan v. Arizona State Tax
Comm'n, 411 U. S. 164
(1973).
II
There is no dispute that Smith John is a Choctaw Indian, and it
is presumed by all that he is a descendant of the Choctaws who, for
hundreds of years, made their homes in what is now central
Mississippi. The story of these Indians, and of their brethren who
left Mississippi to settle in what is now the State of Oklahoma,
has been told in the pages of the reports of this Court and of
other federal courts.
See, e.g., Choctaw Nation v.
Oklahoma, 397 U. S. 620
(1970);
Winton v. Amos, 255 U. S. 373
(1921);
Fleming v. McCourtain, 215 U. S.
56 (1909);
United States v. Choctaw Nation,
179 U. S. 494
(1900);
Choctaw Nation v. United States, 119 U. S.
1 (1886);
Chitto v. United States, 133 Ct.Cl.
643, 138 F. Supp. 253,
cert. denied, 352 U.S. 841 (1956);
Choctaw Nation v. United States, 81 Ct.Cl. 1,
cert.
denied, 296 U.S. 643 (1935).
At the time of the Revolutionary War, these Indians occupied
large areas of what is now the State of Mississippi. In the years
just after the formation of our country, they entered into a treaty
of friendship with the United States. Treaty at Hopewell, 7 Stat.
21 (1786). But the United States became anxious to secure the lands
the Indians occupied in order to allow for westward expansion. The
Choctaws, in an attempt to avoid what proved to be their fate,
entered into a series of treaties gradually relinquishing their
claims to these lands. [
Footnote
5]
Page 437 U. S. 639
Despite these concessions, when Mississippi became a State on
December 10, 1817, the Choctaws still retained claims, recognized
by the Federal Government, to more than three-quarters of the land
within the State's boundaries. The popular pressure to make these
lands available to non-Indian settlement, and the responsibility
for these Indians felt by some in the Government, combined to shape
a federal policy aimed at persuading the Choctaws to give up their
lands in Mississippi completely and to remove to new lands in what
for many years was known as the Indian Territory, now a part of
Oklahoma and Arkansas. The first attempt to effectuate this policy,
the Treaty at Doak's Stand, 7 Stat. 210 (1820), resulted in an
exchange of more than 5 million acres. Because, however, of
complications arising when it was discovered that much of the land
promised the Indians already had been settled, most Choctaws
remained in Mississippi. A delegation of Choctaws went to
Washington, D.C., to untangle the situation and to negotiate yet
another treaty.
See 7 Stat. 234 (1825). Still, few
Choctaws moved.
Only after the election of Andrew Jackson to the Presidency in
1828 did the federal efforts to persuade the Choctaws to leave
Mississippi meet with some success. [
Footnote 6] Even before
Page 437 U. S. 640
Jackson himself had acted on behalf of the Federal Government,
however, the State of Mississippi, grown impatient with federal
policies, had taken steps to assert jurisdiction over the lands
occupied by the Choctaws. In early 1829, legislation was enacted
purporting to extend legal process into the Choctaw territory.
1824-1838 Miss. Gen. Laws 195 (Act of Feb. 4, 1829). In his first
annual address to Congress on December 8, 1829, President Jackson
made known his position on the Indian question and his support of
immediate removal. S.Doc. No. 1, 21st Cong., 1st Sess., 116 (1829).
Further encouraged, the Mississippi Legislature passed an Act
purporting to abolish the Choctaw government and to impose a fine
upon anyone assuming the role of chief. The Act also declared that
the rights of white persons living within the State were to be
enjoyed by the Indians, and that the laws of the State were to be
in effect throughout the territory they occupied. 1824-1838
Miss.Gen.Laws 207 (Act of Jan.19, 1830).
In Washington, Congress debated whether the States had power to
assert such jurisdiction and whether such assertions were wise.
[
Footnote 7] But the only
message heard by the Choctaws in Mississippi was that the Federal
Government no longer would stand between the States and the
Indians. Appreciating these realities, the Choctaws again agreed to
deal with the Federal Government. On September 27, 1830, the Treaty
at Dancing
Page 437 U. S. 641
Rabbit Creek, 7 Stat. 333, was signed. [
Footnote 8] It provided that the Choctaws would cede to
the United States all lands still occupied by them east of the
Mississippi, more than 10 million acres. They were to remove to
lands west of the river, where they would remain perpetually free
of federal or state control, by the fall of 1833. The Government
would help plan and pay for this move. Each Choctaw "head of a
family being desirous to remain and become a citizen of the
States,"
id. at 335, however, was to be permitted to do so
by signifying his intention within six months to the federal agent
assigned to the area. Lands were to be reserved, at least 640 acres
per household, to be held by the Indians in fee simple if they
would remain upon the lands for five years.
Ibid. Other
lands were reserved to the various chiefs and to others already
residing on improved lands.
Id. at 335-336. Those who
remained, however, were not to "lose the privilege of a Choctaw
citizen,"
id. at 335, although they were to receive no
share of the annuity provided for those who chose to remove.
The relations between the Federal Government and the Choctaws
remaining in Mississippi did not end with the formal ratification
of the Treaty at Dancing Rabbit Creek by the United States Senate
in February, 1831. 7 Cong.Deb. 347 (1831). The account of the
federal attempts to satisfy
Page 437 U. S. 642
the obligations of the United States, both to those who remained
[
Footnote 9] and to those who
removed, [
Footnote 10] is
one best left to historians. It is enough to say here that the
failure of these
Page 437 U. S. 643
attempts, characterized by incompetence, if not corruption,
proved an embarrassment and an intractable problem for the Federal
Government for at least a century.
See, e.g., Chitto v. United
States, 133 Ct.Cl. 643, 138 F. Supp. 26 (1956). It remained
federal policy, however, to try to induce these Indians to leave
Mississippi.
During the 1890's, the Federal Government became acutely aware
of the fact that not all the Choctaws had left Mississippi. At that
time, federal policy toward the Indians favored the allotment of
tribal holdings, including the Choctaw holdings in the Indian
Territory, in order to make way for Oklahoma's statehood. The
inclusion of the Choctaws then residing in Mississippi in the
distribution of these holdings proved among the largest obstacles
encountered during the allotment effort. [
Footnote 11] But even during this era, when federal
policy again
Page 437 U. S. 644
supported the removal of the Mississippi Choctaws to join their
brethren in the West, there was no doubt that there remained
persons in Mississippi who were properly regarded both by the
Congress and by the Executive Branch as Indians. It was not until
1916 that this federal recognition of the presence of Indians in
Mississippi was manifested by other than attempts to secure their
removal. The appropriations for the Bureau of Indian Affairs in
that year included an item (for $1,000) to enable the Secretary of
the Interior "to investigate the condition of the Indians living in
Mississippi" and to report to Congress "as to their need for
additional land and school facilities." 39 Stat. 138.
See
H.R.Doc. No. 1464, 64th Cong., 2d Sess. (1916). In March, 1917,
hearings were held in Union, Miss., by the House Committee on
Investigation of the Indian Service, again exploring the
desirability of providing federal services for these Indians. The
efforts resulted in an inclusion in the general appropriation for
the Bureau of Indian Affairs in 1918. T his appropriation, passed
only after debate in the House, 56 Cong.Rec. 1136-1140 (1918),
included funds for the establishment of an agency with a physician,
for the maintenance of schools, and for the purchase of land and
farm equipment. [
Footnote
12] Lands purchased
Page 437 U. S. 645
through these appropriations were to be sold on contract to
individuals in keeping with the general pattern of providing lands
eventually to be held in fee by individual Indians, rather than
held collectively. Further provisions for the Choctaws in
Mississippi were made in similar appropriations in later years.
[
Footnote 13]
In the 1930's, the federal Indian policy had shifted back toward
the preservation of Indian communities generally. This shift led to
the enactment of the Indian Reorganization Act of 1934, 48 Stat.
984, and the discontinuance of the allotment program. The Choctaws
in Mississippi were among the many groups who, before the
legislation was enacted, voted to support its passage. This vote
was reported to Congress by the Bureau of Indian Affairs.
See Hearings on S. 2755 and S. 3645 before the Senate
Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 82
(1934); Hearings on H.R. 7902 before the House Committee on Indian
Affairs, 73d Cong., 2d Sess., 423 (1934). On March 30, 1935, the
Mississippi Choctaws voted, as anticipated by § 18 of the Act, 48
Stat. 988, 25 U.S.C. § 478 (1976 ed.), to accept the provisions of
the
Page 437 U. S. 646
Act. T. Haas, Ten Years of Tribal Government Under I.R.A. 17
(U.S. Indian Service, Tribal Relations Pamphlet No. 1 (1947))
By this time, it had become obvious that the original method of
land purchase authorized by the 1918 appropriations -- by contract
to a particular Indian purchaser -- not only was inconsistent with
the new federal policy of encouraging the preservation of Indian
communities with commonly held lands, but also was not providing
the Mississippi Choctaws with the benefits intended.
See
H.R.Rep. No.194, 76th Cong., 1st Sess. (1939). In 1939, Congress
passed an Act providing essentially that title to all the lands
previously purchased for the Mississippi Choctaws would be
"in the United States in trust for such Choctaw Indians of
one-half or more Indian blood, resident in Mississippi, as shall be
designated by the Secretary of the Interior."
Ch. 235, 53 Stat. 851. In December, 1944, the Assistant
Secretary of the Department of the Interior officially proclaimed
all the lands then purchased in aid of the Choctaws in Mississippi,
totaling at that time more than 15,000 acres, to be a reservation.
9 Fed.Reg. 14907. [
Footnote
14]
In April, 1945, again as anticipated by the Indian
Reorganization Act, § 16, 48 Stat. 987, 25 U.S.C. § 476 (1976 ed.),
the Mississippi Band of Choctaw Indians adopted a constitution and
bylaws; these were duly approved by the appropriate federal
authorities in May 1945. [
Footnote 15]
Page 437 U. S. 647
With this historical sketch as background, we turn to the
jurisdictional issues presented by Smith John's case.
III
In order to determine whether there is federal jurisdiction over
the offense with which Smith John was charged (alleged in the
federal indictment to have been committed "on and within the
Choctaw Indian Reservation and on land within the Indian country
under the jurisdiction of the United States of America"), we first
look to the terms of the statute upon which the United States
relies, that is, the Major Crimes Act, 18 U.S.C. § 1153. This Act,
as codified at the time of the alleged offense, provided:
"Any Indian who commits. . . assault with intent to kill . . .
within the Indian country, shall be subject to the same laws and
penalties as al other persons committing any [such offense], within
the exclusive jurisdiction of the United States."
The definition of "Indian country" as used here and elsewhere in
chapter 53 of Title 18 is provided in § 1151. [
Footnote 16] Both the Mississippi Supreme
Court
Page 437 U. S. 648
and the Court of Appeals concluded that the situs of the alleged
offense did not constitute "Indian country," and that, therefore, §
1153 did not afford a basis for the prosecution of Smith John in
federal court. We do not agree.
With certain exceptions not pertinent here, § 1151 includes
within the term "Indian country" three categories of land. The
first, with which we are here concerned, [
Footnote 17] is
"all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent."
This language first appeared in the Code in 1948 as a part of
the general revision of Title 18. The Reviser's Notes indicate that
this definition was based on several decisions of this Court
interpreting the term as it was used in various criminal statutes
relating to Indians. In one of these cases,
United States v.
McGowan, 302 U. S. 535
(1938), the Court held that the Reno Indian Colony, consisting of
28.38 acres within the State of Nevada, purchased out of federal
funds appropriated in 1917 and 1926 and occupied by several hundred
Indians theretofore scattered throughout Nevada, was "Indian
country" for the purposes of what was then 25 U.S.C. § 247 (the
predecessor of 18 U.S.C. § 3618 (1976 ed.)), providing for the
forfeiture of a vehicle used to transport intoxicants into the
Indian country. The Court noted that the
"fundamental consideration of both Congress and the Department
of the Interior in establishing this colony has been the protection
of a dependent people."
302 U.S. at
302 U. S. 538.
The principal test applied was drawn from
Page 437 U. S. 649
an earlier case,
United States v. Pelican, 232 U.
S. 442 (1914), and was whether the land in question "had
been validly set apart for the use of the Indians as such, under
the superintendence of the Government."
Id. at
232 U. S. 449;
302 U.S. at
302 U. S. 539.
[
Footnote 18]
The Mississippi lands in question here were declared by Congress
to be held in trust by the Federal Government for the benefit of
the Mississippi Choctaw Indians who were at that time under federal
supervision. There is no apparent reason why these lands, which had
been purchased in previous years for the aid of those Indians, did
not become a "reservation," at least for the purposes of federal
criminal jurisdiction at that particular time.
See United
States v. Celestine, 215 U. S. 278,
215 U. S. 285
(1909). But if there were any doubt about the matter in 1939 when,
as hereinabove described, Congress declared that title to lands
previously purchased for the Mississippi Choctaws would be held in
trust, the situation was completely clarified by the proclamation
in 1944 of a reservation and the subsequent approval of the
constitution and bylaws adopted by the Mississippi Band.
The Court of Appeals and the Mississippi Supreme Court held, and
the State now argues, that the 1944 proclamation had no effect,
because the Indian Reorganization Act of 1934 was not intended to
apply to the Mississippi Choctaws. Assuming for the moment that
authority for the proclamation
Page 437 U. S. 650
can be found only in the 1934 Act, we find this argument
unpersuasive. The 1934 Act defined "Indians" not only as "all
persons of Indian descent who are members of any recognized [in
1934] tribe now under Federal jurisdiction," and their descendants
who then were residing on any Indian reservation, but also as "all
other persons of one-half or more Indian blood." 48 Stat. 988, 25
U.S.C. § 479 (1976 ed.). There is no doubt that persons of this
description lived in Mississippi, and were recognized as such by
Congress and by the Department of the Interior, at the time the Act
was passed. [
Footnote 19]
The references to the Mississippi Choctaws in the legislative
history of the Act,
see supra at
437 U. S.
645-646, confirm our view that the Mississippi Choctaws
were not to be excepted from the general operation of the 1934 Act.
[
Footnote 20]
Page 437 U. S. 651
IV
Mississippi appears to concede, Brief for Appellee in No.
77-575, p. 44, that, if § 1153 provides a basis for the prosecution
of Smith John for the offense charged, the State has no similar
jurisdiction. This concession, based on the assumption that § 1153
ordinarily is preemptive of state jurisdiction when it applies,
seems to us to be correct. [
Footnote 21] It was a necessary premise of at least one
of our earlier decisions.
Seymour v. Superintendent,
368 U. S. 351
(1962).
See also Williams v. Lee, 358 U.
S. 217,
358 U. S. 220,
and n. 5 (1959);
Rice v. Olson, 324 U.
S. 786 (1945);
In re Carmen's
Petition, 165 F.
Supp. 942 (ND Cal.1958),
aff'd sub nom. Dickson v.
Carmen, 270 F.2d 809 (CA9 1959),
cert. denied, 361
U.S. 034 (1960). [
Footnote
22]
Page 437 U. S. 652
The State argues, however, that the Federal Government has no
power to produce this result. It suggests that, since 1830, the
Choctaws residing in Mississippi have become fully assimilated into
the political and social life of the State, and that the Federal
Government long ago abandoned its supervisory authority over these
Indians. Because of this abandonment, and the long lapse in the
federal recognition of a tribal organization in Mississippi, the
power given Congress "[t]o regulate Commerce . . . with the Indian
Tribes," Const. Art. I, § 8, cl. 3, cannot provide a basis for
federal jurisdiction. To recognize the Choctaws in Mississippi as
Indians over whom special federal power may be exercised would be
anomalous and arbitrary. [
Footnote 23]
We assume for purposes of argument, as does the United States,
that there have been times when Mississippi's jurisdiction over the
Choctaws and their lands went unchallenged. But, particularly in
view of the elaborate history, recounted above, of relations
between the Mississippi Choctaws and the United States, we do not
agree that Congress and the Executive
Page 437 U. S. 653
Branch have less power to deal with the affairs of the
Mississippi Choctaws than with the affairs of other Indian groups.
Neither the fact that the Choctaws in Mississippi are merely a
remnant of a larger group of Indians, long ago removed from
Mississippi, nor the fact that federal supervision over them has
not been continuous, destroys the federal power to deal with them.
United States v. Wright, 53 F.2d 300 (CA4 1931),
cert.
denied, 285 U.S. 539 (1932). [
Footnote 24]
The State also argues that the Federal Government may not deal
specially with the Indians within the State's boundaries, because
to do so would be inconsistent with the Treaty at Dancing Rabbit
Creek. This argument may seem to be a cruel joke to those familiar
with the history of the execution of that treaty, and of the
treaties that renegotiated claims arising from it.
See
supra at
437 U. S.
640-643. And even if that treaty were the only source
regarding the status of these Indians in federal law, we see
nothing in it inconsistent with the continued federal supervision
of them under the Commerce Clause. It is true that this treaty
anticipated that each of those electing to remain in Mississippi
would become "a citizen of the States," but the extension of
citizenship status to Indians does not, in itself, end the powers
given Congress to
Page 437 U. S. 654
deal with them.
See United States v. Celestine,
215 U. S. 278
(1909).
V
We therefore hold that § 1153 provides a proper basis for
federal prosecution of the offense involved here, and that
Mississippi has no power similarly to prosecute Smith John for that
same offense. Accordingly, the judgment of the Supreme Court of
Mississippi in No. 77-575 is reversed; further, the judgment of the
United States Court of Appeals for the Fifth Circuit in No. 77-836
is reversed, and that case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
* Together with No. 77-575,
John et al. v. Mississippi,
on appeal from the Supreme Court of Mississippi.
[
Footnote 1]
Smith John's son, Harry Smith John, also was charged jointly
with his father in the federal indictment. The United States and
counsel for the Johns have advised the Court of Harry Smith John's
death on February 18, 1978, and concede that, as to him, the case
is moot. Brief for United States 3; Brief for John
et al.
1. The brief for the State of Mississippi is silent as to this. We
agree that both cases are moot as to Harry Smith John.
[
Footnote 2]
At the time of the alleged offense, 18 U.S.C. § 1153 read:
"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 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."
This section has since been amended by the Indian Crimes Act of
1976, 90 Stat. 585, which added kidnaping to the list of offenses
covered and made changes, not pertinent to these cases, in the ways
in which state law is incorporated. Section 113, the statute
specifying punishment for assaults committed within the special
territorial jurisdiction of the United States, including those for
which federal prosecutions are authorized by § 1153, was also
amended by the same Act.
See H.R.Rep. No. 94-1038 (1976);
S.Rep. No. 94-620 (1976).
[
Footnote 3]
Under
Keeble v. United States, 412 U.
S. 205 (1973), Smith John was entitled to instructions
regarding this lesser included offense. It appears, however,
see Brief for John
et al. 5; Brief for United
States 4, and n. 6 that Smith John argued before the Court of
Appeals that, although he was entitled to such instructions, the
District Court had no jurisdiction to enter a judgment of
conviction for the lesser offense, a misdemeanor not listed in §
1153. The Court of Appeals, in deciding that the statute did not
apply even to the extent urged by the United States, did not reach
the issue. It has not been argued before this Court.
See,
however, Felicia v. United States, 495 F.2d 353 (CA8),
cert. denied, 419 U.S. 849 (1974).
[
Footnote 4]
Harry Smith John was also jointly charged with his father under
the Mississippi indictment, and was convicted. As stated above,
counsel for Harry Smith John concedes that the death of Harry Smith
John on February 18, 1978, renders the state case moot as to him.
Brief for John
et al. 1.
[
Footnote 5]
Treaty at Fort Adams, 7 Stat. 66 (1801) (2 1/2 million acres
ceded); Treaty at Fort Confederation, 7 Stat. 73 (1802)
(establishment of boundaries generally); Treaty at
Hoe-Buckin-too-pa, 7 Stat. 80 (1803) (900,000 acres in conformity
with the Fort Confederation agreement); Treaty at Mount Dexter, 7
Stat. 98 (1805) (4 million acres); Treaty at Fort St. Stephens, 7
Stat. 152 (1816) (ceding a relatively small tract where Columbus,
Miss., now stands).
See A. DeRosier, Jr., The Removal of
the Choctaw Indians 29 (1970).
[
Footnote 6]
Andrew Jackson had been one of the two commissioners sent to
negotiate the Treaty at Doak's Stand. From the land ceded by the
Choctaws under that treaty, a new state capital, to be named
Jackson, was planned. P. Fortune, The Formative Period, in 1 A
History of Mississippi 255 (R. McLemore ed., 1973). Jackson's
position with regard to the removal of the Indians played a
significant role in his Presidential election and in his popularity
in Mississippi.
Id. at 277.
See generally
DeRosier,
supra, n 5,
at 100-115; M. Young, Redskins, Ruffleshirts, and Rednecks: Indian
Allotments in Alabama and Mississippi, 1830-1860, pp. 121 (1961);
G. Foreman, Indian Removal: The Emigration of the Five Civilized
Tribes of Indians 21 (1953 ed.); F. Cohen, Handbook of Federal
Indian Law 56-59 (1941); Prucha, Andrew Jackson's Indian Policy: A
Reassessment, 56 J. of Am.Hist. 527 (1969).
[
Footnote 7]
See, e.g., 6 Cong.Deb. 585 (1830). These debates
culminated on May 28, 1830, in the passage of the Indian Removal
Bill. 4 Stat. 411.
See generally A. Abel, The History of
Events Resulting in Indian Consolidation West of the Mississippi
River, in 1906 Annual Report of the American Historical Assn.
377-382 (1908). They also set the stage for the constitutional
crisis surrounding this Courts decision in
Worcester
v. Georgia, 6 Pet. 515 (1832), that the States had
no power over the Indians and the Indian lands within their
boundaries.
See generally Burke, The Cherokee Cases: A
Study in Law, Politics, and Morality, 21 Stan.L.Rev. 500 (1969);
Miles, After John Marshall's Decision:
Worcester v.
Georgia and the Nullification Crisis, 39 J. of So.Hist. 519
(1973).
[
Footnote 8]
Perhaps the best evidence of the circumstances surrounding this
treaty lies in its very words. As signed by the Choctaws, it
contained the following preamble:
"Whereas the General Assembly of the State of Mississippi has
extended the laws of said State to persons and property within the
chartered limits of the [Choctaw lands], and the President of the
United States has said that he cannot protect the Choctaw people
from the operation of these laws; Now therefore, that the Choctaw
may live under their own laws in peace with the United States and
the State of Mississippi, they have determined to sell their lands
east of the Mississippi, and have accordingly agreed to the
following articles of treaty."
The preamble was stricken from the treaty as ratified by the
Senate. 7 Cong.Deb. 34347 (1831).
[
Footnote 9]
See generally Chitto v. United States, 133 Ct.Cl. 643,
138 F. Supp. 253,
cert. denied, 352 U.S. 841 (1956);
Young,
supra, n 6, at
47-72; Riley, Choctaw Land Claims, 8 Publications of the
Mississippi Historical Society 345 (1904).
It is generally acknowledged that, whether anxious to conceal
the fact that far more Choctaws had remained in Mississippi than he
had anticipated originally, or simply because he was disinterested
in his job and generally dissolute, the agent in charge of the task
refused to record the claims of those who elected to remain.
See, e.g., Coleman v. Doe, 12 Miss. 40 (1844);
Chitto
v. United States, 133 Ct.Cl. at 648-649, 138 F. Supp. at 257.
Speculators soon began pressing the cause of those who had been
refused. Perhaps in large part due to their efforts, and the cloud
created on the ceded lands as they were put up for sale without the
proper recordation of Indian claims, Congress soon authorized
investigation of the situation.
See 7 American State
Papers, Public Lands 448-525 (1860); H.R.Rep. No. 663, 24th Cong.,
1st Sess. (1836).
Although one might wonder whether it was concern for the
preservation of the claims for the Indians or simply concern for
the preservation of the claims that motivated subsequent events,
measures were taken to remedy the situation and to provide
substitute lands for the Choctaws to replace those lands sold
despite their attempt to file claims. One measure provided that the
claimants would be issued scrip enabling them to claim substitute
lands, but half the scrip was not to be delivered unless the
claimants removed to territory west of the Mississippi. Act of Aug.
23, 1842, 5 Stat. 513.
The administration of this statute was as unsuccessful as had
been the administration of the original treaty. It appears that, in
practice, none of the scrip was delivered before removal,
Chitto v. United States, 133 Ct.Cl. at 649, 138 F. Supp.
at 257, and that Congress later established a fund to be paid in
lieu of part of the scrip. 5 Stat. 777 (1845). After an attempt at
settlement in 1852 proved unsuccessful, the United States and the
Choctaws in Oklahoma in 1855 entered into still another treaty that
provided that the Senate would make a determination of the amounts
owing to the Choctaws generally for the failure of the United
States to abide by its various treaty promises. Treaty of June 22,
1855, 11 Stat. 611. In March, 1859, the Senate approved the general
formula under which those amounts were to be calculated,
Cong.Globe, 35th Cong., 2d Sess., 1691; S.Rep. No. 374, 35th Cong.,
2d Sess. (1859), and the Secretary of the Interior, pursuant to
this direction, computed the total to be almost $3 million.
See H.R.Exec.Doc. No. 82, 36th Cong., 1st Sess. (1860),
reprinted in H.R.Rep. No. 251, 45th Cong., 2d Sess., 12 (1878). The
War Between the States interrupted the payment of this Senate
award, and, after the war, the Choctaws found themselves forced to
prove their claims once again, this time in the federal courts.
See Choctaw Nation v. United States, 119 U. S.
1 (1886),
rev'g 21 Ct.Cl. 59.
[
Footnote 10]
See generally DeRosier,
supra, n 5, at 129-167; Wright, The Removal of the
Choctaws to the Indian Territory 1830-1833, 6 Chronicles of
Oklahoma 103 (1928); A. Debo, The Rise and Fall of the Choctaw
Republic 56 (2d ed.1961);
n 9,
supra.
[
Footnote 11]
The potential right of the Choctaws who had not removed to
participate in any general allotment of the Oklahoma lands was
acknowledged in the treaty entered into by the United States and
the Choctaws and Chickasaws at the close of the war. 14 Stat. 774
(1866). But a new series of frauds and speculation made
implementation of this policy difficult when the allotment
eventually took place.
See the essentially contemporaneous
account of these events provided in Wade, The Removal of the 397
(1904). In response to a flood of claims of those purporting to be
Mississippi Choctaws to whom a portion of its holdings in Oklahoma
should be distributed, the Choctaw Nation resisted attempts to
include Mississippi Choctaws on its rolls. Between 1897 and 1907,
when the Choctaw rolls were finally closed, repeated efforts were
made by the Dawes Commission, and by Congress, to determine the
appropriate criteria for enrollment of the Mississippi Choctaws,
and their participation in the allotment. Again, any participation
was conditioned on removal from Mississippi.
See the
complete account of these efforts in
Estate of Winton v.
Amos, 51 Ct.Cl. 284 (1916),
rev'd in part and aff'd in
part, 255 U. S. 255 U.S.
373 (1921).
[
Footnote 12]
40 Stat. 573 (1918).
See Hearings on Indian
Appropriation Bill before a Subcommittee of the House Committee on
Indian Affairs, 65th Cong., 2d Sess., 153, 175-176 (1918).
Shortly after this appropriation was made, Cato Sells,
Commissioner of Indian Affairs, traveled to Mississippi to gain
first-hand information about the Indians there. In his annual
report, he observed:
"Practically all of the Mississippi Choctaws are full-bloods.
Very few own their homes. They are almost entirely farm laborers or
sharecroppers. They are industrious, honest, and necessarily
frugal. Most of them barely exist, and some suffer from want of the
necessaries of life and medical aid. In many of the homes visited
by me, there was conspicuous evidence of pitiable poverty. I
discovered families with from three to five children, of proper
age, not one of whom had spent a day of their life in school. With
very few exceptions, they indicated willingness to go to school, as
did their parents to send them. Several young Choctaw boys and
girls expressed an ardent desire for an education."
Report of the Commissioner of Indian Affairs, in 2 Reports of
the Department of the Interior, 1918, pp. 79-80 (1919).
[
Footnote 13]
41 Stat. 15 (1919); 41 Stat. 420 (1920); 41 Stat. 1236 (1921);
42 Stat. 570 (1922); 42 Stat. 1191 (1923); 43 Stat. 409 (1924); 43
Stat. 1149, 1155, 1159 (1925); 44 Stat. 461, 468, 472 (1926); 44
Stat. 941, 947, 951 (1927); 45 Stat. 206, 216, 220 (1928); 45 Stat.
1568, 1578, 1581 (1929); 46 Stat. 286, 299 (1930); 46 Stat. 1121,
1135 (1931); 47 Stat. 109 (1932).
[
Footnote 14]
By its language, the 1939 Act affected only those lands that
were "not under contract for resale to Choctaw Indians, or on which
existing contracts of resale may hereafter be canceled." The 1944
Proclamation of Reservation recited specifically that it was issued
"by virtue of the authority contained in the act of June 21, 1939,
and in section 7 of the act of June 18, 1934," and that no such
acquired lands were covered by any outstanding contract "for the
resale of any part thereof to any Choctaw or other Indian."
[
Footnote 15]
This constitution has since been amended in response to the
Indian Civil Rights Act of 1968, 25 U.S.C. § 1301
et seq.
(1976 ed.).
[
Footnote 16]
As originally enacted, the Major Crimes Act made no reference to
"Indian country" but, instead, referred to any "reservation" within
the States and the Territories.
See n 22,
infra. The legislation retained
this general form when it was reenacted as § 328 of the Criminal
Code of 1909, 35 Stat. 1151 (codified from 1926 to 1948 as 18
U.S.C. § 548), and amended, 47 Stat. 336 (1932) (adding incest to
the list of crimes covered, deleting the reference to the
Territories, and providing expressly that rights of way running
through a reservation were to be included as part of the
reservation).
In the 1948 revision of Title 18, however, the express reference
to "reservation" was deleted in favor of the use of the term
"Indian country," which was used in most of the other special
statutes referring to Indians, and as defined in § 1151.
See Reviser's Note, and
n 18,
infra.
The Act has since been amended four times, 63 Stat. 94 (1949)
(relating to the punishment for the crime of rape); 80 Stat. 1100
(1966) (adding carnal knowledge and assault with intent to rape);
82 Stat. 80 (1968) (adding assault resulting in serious bodily
injury); 90 Stat. 585 (1976) (
see n 2,
supra), but its form has not been changed
substantially.
[
Footnote 17]
The second category for inclusion within the definition of
"Indian country" is
"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."
The third category is "all Indian allotments, the Indian titles
to which have not been extinguished, including rights of way
running through the same." Inasmuch as we find in the first
category a sufficient basis for the exercise of federal
jurisdiction in this case, we need not consider the second and
third categories.
[
Footnote 18]
Some earlier cases had suggested a more technical and limited
definition of "Indian country."
See, e.g., Bates v. Clark,
95 U. S. 204
(1877). Throughout most of the 19th century, apparently the only
statutory definition was that in § 1 of the Act of June 30, 1834, 4
Stat. 729. But this definition was dropped in the compilation of
the Revised Statutes.
See Ex parte Crow Dog, 109 U.
S. 556 (1883). This Court was left with little choice
but to continue to apply the principles established under the
earlier statutory language and to develop them according to
changing conditions.
See, e.g., Donnelly v. United States,
228 U. S. 243
(1913). It is the more expansive scope of the term that was
incorporated in the 1948 revision of Title 18.
[
Footnote 19]
A report completed just after the passage of the Act
recounts:
"After all the years of living in and among both white and
colored race, it is indeed surprising to find that approximately 85
percent of this group are full bloods. Their racial integrity is
intact in spite of the absence of permanent holdings or any sort of
community life. Many of the older Choctaws do not speak
English."
E. Groves, Notes on the Choctaw Indians, Feb. 20-Mar. 20, 1936,
p. 1 (Bureau of Indian Affairs).
[
Footnote 20]
The State of Mississippi makes much of a sentence contained in
an unpublished memorandum dated August 31, 1936, of the Solicitor
for the Department of the Interior. It reads: "They [the Indians
remaining in Mississippi] cannot now be regarded as a tribe."
See F. Cohen, Handbook of Federal Indian Law 273 (1941). A
reading of the entire memorandum, however, convinces us that it
supports the position of the United States in this case. The
memorandum was concerned only with the proper description of the
Indians in the deeds relating to lands purchased according to the
provisions of the Indian Reorganization Act. At least one deed had
been prepared designating the grantee as "the United States in
trust for the Choctaw tribe of Mississippi." The memorandum
recommended that, because the Indians could not be regarded as a
tribe at that time, the deeds be written designating the grantee
as
"[t]he United States in trust for such Choctaw Indians of
one-half or more Indian blood, resident in Mississippi, as shall be
designated by the Secretary of the Interior, until such time as the
Choctaw Indians of Mississippi shall be organized as an Indian
tribe pursuant to the act of June 18, 1934 (48 Stat. 984) [the
Indian Reorganization Act], and then in trust for such organized
tribe."
Surely this is evidence that, although there was no legal entity
known as "the Choctaw tribe of Mississippi," the Department of the
Interior anticipated that a more formal legal entity, a tribe for
the purposes of federal Indian law, soon would exist.
[
Footnote 21]
We do not consider here the more disputed question whether §
1153 also was intended to preempt tribal jurisdiction.
See
Oliphant v. Suquamish Indian Tribe, 435 U.
S. 191,
435 U. S.
203-204, n. 14 (1978);
United States v.
Wheeler, 435 U. S. 313,
435 U. S. 325
n. 22 (1978).
[
Footnote 22]
There is much in the legislative history to support this view.
The Major Crimes Act was approved on March 3, 1885, 23 Stat. 385,
in part in response to the decision of this Court in
Ex parte
Crow Dog, 109 U. S. 556
(1883).
See United States v. Kagama, 118 U.
S. 375,
118 U. S.
382-383 (1886). As originally proposed in the House, the
bill provided that Indians committing the specified crimes
"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, similarly, that Indians committing the same crimes
"within the boundaries of any State of the United States, and
either within or without an Indian reservation, shall be subject to
the same laws . . . as are all other persons committing any of the
above crimes within the exclusive jurisdiction of the United
States."
16 Cong.Rec. 934 (1885).
It became apparent in conference on the bill that this language
would have a far broader effect than originally intended, for the
language proposed would "take away from State courts, whether there
be a reservation in the State or not" jurisdiction over the listed
crimes when committed by an Indian.
Id. at 2385. The
provision was then amended to read
"all such Indians committing any of the above crimes . . .
within the boundaries of any State of the United States, and within
the limits of any Indian reservation,"
and was agreed to with this change.
[
Footnote 23]
Mississippi has made no effort, either in this Court or in the
courts below, to support this argument with evidence of the
assimilation of the Choctaw Indians in Mississippi, or with a
demonstration of the services provided for them. There is evidence
that some educational services have been provided by the State.
See J. Peterson, The Mississippi Band of Choctaw Indians:
Their Recent History and Current Social Relations 84, and
passim (Ph.D. dissertation, University of Georgia 1970);
J. Jennings, v. Beggs, & A. Caldwell, A Study of the Social and
Economic Condition of the Choctaw Indians in Mississippi in
Relation to the Educational Program 4 (Bureau of Indian Affairs
1945); T. Taylor, The States and Their Indian Citizens 177 (1972).
But the provision of state services to Indians would not prove that
the Federal Government had relinquished its ability to provide for
these Indians under its Article I power.
[
Footnote 24]
We need not be concerned, as Mississippi hints, that the
assumption of federal criminal jurisdiction over the Choctaw
Indians in Mississippi, if not historically anomalous, is
inconsistent with the intent of Congress. In the early 1950's, when
federal Indian policy again emphasized assimilation, a thorough
survey was made of all the then recognized tribes and their
economic and social conditions. These efforts led to a
congressional resolution calling for the freedom of certain tribes
from federal supervision "at the earliest possible time," 67 Stat.
B132 (1953), conferring on certain designated States jurisdiction
with respect to criminal offenses and civil causes committed or
arising on Indian reservations, and granting federal consent to the
assertion of state jurisdiction by other States.
Id. at
588-590. The Mississippi Band of Choctaw Indians was among those
for whom the Bureau of Indian Affairs recommended continued
supervision.
See H.R.Rep. No. 2680, 83d Cong.,2d Sess.,
31-32, and
passim (1954).
See also H.R.Rep. No.
2503, 82d.Cong., 2d Sess., 313 (1953).