United States v. Hopson: No Federal Jurisdiction Over Unenumerated Lesser-Included Offences in Major Crimes Act Prosecutions

Introduction

United States v. Hopson, No. 23-5056 (10th Cir. 2025) marks the first appellate decision squarely holding that a federal district court lacks subject-matter jurisdiction to enter a conviction against an Indian defendant for a lesser-included offence not specifically enumerated in the Major Crimes Act (MCA), 18 U.S.C. §§ 1153, 3242.

The case arose from a political demonstration within the Muscogee (Creek) Nation reservation in Tulsa, Oklahoma. Jason Robert Hopson (an enrolled Indian) was indicted in federal court for felony assault resulting in serious bodily injury— an offence expressly listed in § 1153. The jury acquitted him of that charge but, after a requested instruction, convicted him of the lesser-included offence of simple assault under § 113(a)(5), which is not listed in the MCA. Hopson appealed, arguing that the district court’s judgment on the unlisted misdemeanour was void for want of federal jurisdiction.

Summary of the Judgment

The Tenth Circuit (Judges Matheson, Eid and opinion by Rossman, J.) vacated Hopson’s conviction and remanded.
It held that:
- Federal subject-matter jurisdiction in criminal cases derives from 18 U.S.C. § 3231, which extends only to “offences against the laws of the United States”.
- Under § 3231, an offence is “against the laws of the United States” only if Congress has made it one. Congress has done so for felony assault (listed in § 1153(a)) but not for misdemeanour simple assault when both defendant and victim are Indian and the crime occurs in Indian country.
- Section 3242 guarantees tribal defendants the procedural right to lesser-included instructions, but it neither creates new federal crimes nor enlarges jurisdiction.
- Accordingly, while giving the jury a lesser-included instruction was proper, the court had no power to enter judgment on that lesser offence.
The panel acknowledged it was creating a split with the Fourth, Fifth, Eighth and Ninth Circuits, which have inferred jurisdiction over such lesser-included offences.

Analysis

Precedents Cited and Their Influence

Keeble v. United States, 412 U.S. 205 (1973)
- Recognised a statutory right (under § 3242) for Indian defendants to request lesser-included instructions even when the lesser crime is not in § 1153.
- Hopson distinguishes Keeble: the right to instruct does not supply jurisdiction to convict.
Ex parte Crow Dog, 109 U.S. 556 (1883); United States v. Quiver, 241 U.S. 602 (1916)
- Require a “clear expression” of congressional intent before federal courts may displace tribal criminal authority. Hopson treats the absence of simple assault from § 1153 as dispositive.
Out-of-Circuit Decisions: Felicia (8th Cir.), John (5th Cir.), Bowman (9th Cir.), Walkingeagle (4th Cir.)
- Each inferred jurisdiction over unenumerated lesser offences; Hopson expressly rejects their reasoning as inconsistent with statutory text and tribal-sovereignty canons.
Other authorities: Spaziano v. Florida, 468 U.S. 447 (1984) distinguished; Turkiye Halk Bankasi A.Ş., 598 U.S. 264 (2023) cited for breadth of § 3231.

Legal Reasoning of the Court

Textualism & Expressio Unius
Only offences listed in § 1153(a) are federal crimes when both defendant and victim are Indian. The deliberate inclusion of “felony assault” and silence as to misdemeanour variants implies exclusion of the latter.
Section 3231 as the Sole Jurisdictional Grant
The court emphasises that jurisdiction cannot be inferred; § 3242 concerns how trials proceed, not whether the court may adjudicate.
Tribal Sovereignty Canon
Ambiguities must be resolved in favour of retained tribal jurisdiction. Expansion by judicial implication would violate that canon.
Rejection of “Implied Jurisdiction” Theory
Earlier circuits treated Keeble’s instruction right as implying jurisdiction. Hopson notes Keeble’s own disclaimer: “our decision neither expands the reach of the MCA.”
Surplusage & Structural Canons
Reading lesser-included misdemeanours into § 1153 would render the repeated word “felony” meaningless.

Impact of the Decision

Circuit Split Created: Hopson conflicts with 4th, 5th, 8th, and 9th Circuits, heightening the probability of Supreme Court review or congressional amendment.
Prosecutorial Strategy: U.S. Attorneys in the Tenth Circuit must now decide whether to:
- Indict only MCA-listed felonies (risking total acquittal), or
- Defer entirely to tribal prosecutors for non-enumerated misdemeanours.
Tribal Courts Empowered: Jurisdiction over simple assaults between Indians in Indian country reverts exclusively to tribes, reinforcing self-government.
Jury Instructions Intact, But Consequences Changed: Judges must still give lesser-included instructions, but if the jury convicts only of the lesser offence the federal court must dismiss for lack of jurisdiction—prompting potential tribal reprosecution.
Legislative Attention: Congress might amend § 1153 to list misdemeanour assault or otherwise address the jurisdictional gap identified.

Complex Concepts Simplified

Major Crimes Act (MCA): Federal statute (1885, now 18 U.S.C. § 1153) granting U.S. courts jurisdiction over specific, serious crimes committed by Indians in Indian country.
General Crimes Act: 18 U.S.C. § 1152 extends federal enclave laws to Indian country but expressly excludes Indian-on-Indian crimes—leaving them to tribal courts unless covered by the MCA.
Indian Country: Land within reservation boundaries or held in trust for tribes, where unique jurisdictional rules apply.
Lesser-Included Offence: A crime whose elements are entirely contained within a greater charged offence (e.g., simple assault within felony assault).
Subject-Matter Jurisdiction: The legal power of a court to hear and decide a particular type of case. It cannot be waived or conferred by consent.
Expressio Unius: Canon of construction: listing specific items implies the exclusion of others not listed.

Conclusion

United States v. Hopson establishes a clear, text-based limitation on federal criminal jurisdiction in Indian country: a federal court may instruct on—but not convict for—any lesser-included offence that Congress has not explicitly made a federal crime under the Major Crimes Act. The decision reinforces tribal sovereignty, illustrates the judiciary’s reluctance to infer jurisdiction, and creates a sharp conflict with four sister circuits. Whether resolved by the Supreme Court or Congress, Hopson forces a re-examination of the delicate balance among federal, tribal and state criminal authority on reservations.