UNITED STATES v. JOHN

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 John1 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).2 He was tried before a jury and, on December 15, was convicted of the lesser included offense of simple assault.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 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 John4 was indicted by a grand jury of Leake County, Miss., for aggravated assault upon the same Artis Jenkins, in violation of Miss. Code Ann. § 97-3-7 (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 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. McCurtain, 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.5

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.6 Even before 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., 15-16 (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.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 Rabbit Creek, 7 Stat. 333, was signed.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 priviledge 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 the obligations of the United States both to those who remained,9 and to those who removed,10 is one best left to historians. It is enough to say here that the failure of these 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. 253 (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.11 But even during this era, when federal policy again 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. This 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.12 Lands purchased 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.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 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. 14907.14

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 1945.15

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 all 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 § 1151.16 Both the Mississippi Supreme Court 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,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 538. The principal test applied was drawn from 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 449; 302 U. S., at 539.18

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, 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 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.19 The references to the Mississippi Choctaws in the legislative history of the Act, see supra, at 645-646, confirm our view that the Mississippi Choctaws were not to be excepted from the general operation of the 1934 Act.20

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 pre-emptive of state jurisdiction when it applies, seems to us to be correct.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, 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. 934 (1960).22

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.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 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).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 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 Indans does not, in itself, end the powers given Congress to 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.