Keeble v. United States 8212 5323

Decision Date29 May 1973
Docket NumberNo. 72,72
Citation412 U.S. 205,93 S.Ct. 1993,36 L.Ed.2d 844
PartiesFrancis A. KEEBLE, Petitioner, v. UNITED STATES. —5323
CourtU.S. Supreme Court

Petitioner, in 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 th offenses enumerated in the Act, it would be exclusively 'a matter for the tribe.' Held: 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. 1995—1999.

459 F.2d 757 and 762, reversed and remanded.

Mark V. Meierhenry, Rosebud, S.D., for the petitioner, pro hac vice, by special leave of Court.

Richard B. Stone for the respondent.

Mr. Justice BRENNAN delivered the opinion of the Court.

The Major Crimes Act of 18851 authorizes the prosecution in federal court of an Indian charged with the com- mission on an Indian reservation of certain specifically enumerated offenses.2 This 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 the Act.

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 de- cision in Kills Crow v. United States, 451 F.2d 323 (1971). 459 F.2d 757 (C.A.8, 1972). Following a remand to the District Court for a hearing on an unrelated issue,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,4 409 U.S. 1037, 93 S.Ct. 538, 34 L.Ed.2d 485 (1972), and we reverse.

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.

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,5 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),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.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 687, 100 L.Ed. 1013 (1956); Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896).7

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, 63 64, 15 S.Ct. 273, 277—278, 39 L.Ed. 343 (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 instruction would have been entitled to the jury charge that petitioner was refused. Brief for the United States 13 n. 16.8 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, 3 S.Ct. 396, 27 L.Ed. 1030 (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,9 the Court reasoned that, in the absence of explicit congressional direction, the Indian tribe retained exclusive jurisdiction to punish the offense. Cf. Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (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 conviction:

'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 disagrace 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 law of the tribe, which is just no law at all.' 16 Cong.Rec. 934 (1885). 10

The Secretary of the Interior who supported the Act, struck a similar note:

'If offenses of this character (the killing of Spotted Tail) can not 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 . . ..'11

In short, Congress extended federal jurisdiction to crimes committed by Indians on Indian land out of a conviction that many Indians would 'be civilized a great deal sooner by being put under (federal criminal) laws and taught to regard life and the personal property of others.' 16 Cong.Rec. 936 (1885) (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 manner, 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).12 In the face of that explicit...

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