Dissenting.

I respectfully disagree with the majority’s reading of the word “person” under 18 U.S.C. § 1153 , the Major Crimes Act. Contrary to the majority, I believe that, for the fourteen crimes enumerated under the Major Crimes Act, Congress intended that they be charged under the MCA rather than the General Crimes Act regardless of the identity of the victim. Therefore, by excluding a government agency from the list of possible victims of burglary, the majority creates a loophole in the statutes governing federal criminal jurisdiction over Indians in Indian country.

Congress enacted the MCA in response to the Supreme Court’s holding in Ex Parte Crow Dog, 109 U.S. 556 , 3 S.Ct. 396 , 27 L.Ed. 1030 (1883), which held that a murder of an Indian by an Indian could not be prosecuted by the federal government under the General Crimes Act and that this crime was only punishable via the limited remedies of the tribe. The outcome in Crow Dog was compelled by the limited scope of jurisdiction over crimes in Indian country at that time, under the General Crimes Act (“GCA”). The GCA provided for jurisdiction over general federal enclave crimes in Indian country. 1 However, it contained two important exceptions to that grant of jurisdiction: 1) these crimes, when committed against an Indian by another Indian, could not be prosecuted by the federal government, and 2) if the tribe had already prosecuted and punished someone for a potential GCA crime, the federal government could not subsequently prosecute that individual. See 18 U.S.C. § 1152 . As Crow Dog illustrated, these exceptions led to some grave crimes falling through the cracks of the statutes, prompting public outcry. Congress responded with the Major Crimes Act, by giving the United States jurisdiction over crimes committed by an Indian against an Indian, when they were of a serious nature. See Keeble v. United States, 412 U.S. 205, 210 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973) (quoting statement of sponsor of the Act: “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.”). To do so, Congress chose seven crimes (subsequently amended to fourteen) that were sufficiently severe so as to warrant further intrusion into Indian sovereignty and their criminal jurisdiction, and gave the United States jurisdiction over these crimes. 18 U.S.C. § 1153 ; see also United States v. Maloney, 607 F.2d 222, 233 (9th Cir.1979) (listing the offenses added by amendment to the Act).

The most logical manner in which Congress could have achieved this goal would have been to merely state that, for those “major” crimes, the exception contained within the General Crimes Act does not apply and therefore, Indians who commit those crimes against other Indians may be prosecuted by the federal government. *1167 However, Congress chose a different path with the Major Crimes Act, which states that it gives jurisdiction over “[a]ny Indian who commits against the person or property of another Indian or other person any of the following offenses” and then goes on to enumerate those offenses. 2 18 U.S.C. § 1158 (emphasis added). The wording “Indian or other person” indicates more than just the erasure of that exception in the General Crimes Act, by withdrawing the entire universe of those fourteen crimes from the ambit of the General Crimes Act.

In Henry v. United States, 482 F.2d 114 (9th Cir.1970), we addressed the question of what to do with the potential overlap created by the wording of the Major Crimes Act, specifically whether or not an enumerated crime (rape) in the MCA should be prosecuted under the MCA, when committed against a non-Indian. Previously, a rape of a non-Indian by an Indian would have been punishable under the General Crimes Act, but now with the enumeration of these crimes in the MCA, there seemed to be two possible statutes under which to charge the crime. The government chose to prosecute under the General Crimes Act, and we found this to be the incorrect choice. See Henry, 432 F.2d at 117. We held instead that the crime of rape (an enumerated crime in the MCA) committed by an Indian against a non-Indian victim on an Indian reservation should be prosecuted under section 1153, the Major Crimes Act, rather than section 1152, the General Crimes Act. Henry, 432 F.2d at 118(“[T]he indictment made erroneous reference to § 1152.”)

Our reasoning in Henry is particularly relevant to the interpretation of the word “person” here. We explained that, for the enumerated crimes in the MCA, “the ‘other person’ language cannot be disregarded as not being a Congressional remedy for the lacunae created by the Crow Dog decision. Just as Congress found it desirable to find a remedy for the ousting of federal jurisdiction over crimes committed by one Indian against another, it applied the same remedy for the ousting of federal jurisdiction over crimes committed by an Indian against ‘any other person.’ ” Id. at 117 . As Felix Cohen explained in his Handbook of Federal Indian Law, “The addition [of the added language ‘or other person’] created duplication between the Act and the Indian Country Crimes Act in cases where an Indian is accused of one of the offenses listed in the Major Crimes Act against a non-Indian victim. Since the Major Crimes Act is more specific and was enacted later, and since the Indian Country Crimes Act [otherwise known as the General Crimes Act] provides, ‘Except as otherwise expressly provided by law,’ the Major Crimes Act should govern the offenses listed in it rather than the [General] *1168 Crimes Act.” Felix S. Cohen, Handbook Of Federal Indian Law 301 (1982) (emphasis added). In light of the analysis in Henry and the further explanation in Cohen’s treatise, the most logical interpretation of the language in the MCA is that it includes all victims of those fourteen enumerated crimes. Therefore, the only jurisdictional requirements for charging one of these crimes under the MCA should be 1) that it was committed by an Indian and 2) that it was committed in Indian country.

However, the majority demands a more explicit indication that the MCA intended to include the sovereign in the meaning of the word “person.” Although it is true that Congress did not explicitly state that the government should be included in the definition of “person” in the MCA, I do not think this is necessary, because a coherent and consistent reading of the General Crimes Act and the MCA together requires a reading of “person” to include a government agency here'. In International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 83 , 111 S.Ct. 1700 , 114 L.Ed.2d 134 (1991), the Supreme Court stated that the “conventional reading of ‘person’ may be disregarded if ‘the purpose, the subject matter, the context, [or] the legislative history •... indicate an intent, by use of the term to bring state or nation within the scope of the law.’ ” Here, the purpose and the subject matter point to inclusion of the government, and an example of the effect of the majority’s holding will illustrate why the purpose and subject matter of the MCA compels such a result.

The MCA “reflect[s] a view that tribal remedies were either nonexistent or incompatible with the principles that Congress thought should be controlling.” Keeble v. United States, 412 U.S. 205, 210 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973). As stated above, Congress rectified this perceived deficiency by identifying fourteen crimes which it deemed sufficiently important that it should provide punishment above and beyond that which Indian tribes may provide. The difference in approach by Congress to the crimes covered by the General Crimes Act and those covered by the MCA is evidenced by the inclusion, in the General Crimes Act, of the statutory bar against federal prosecution if a defendant had already been tried by an Indian tribe. No such bar exists for Indians charged with a crime under the MCA, because Congress felt these crimes were sufficiently serious to warrant federal authorities always retaining the option to prosecute, regardless of whether or not the tribe had done so already.

The majority opinion conflicts with that purpose, by pushing the prosecution of burglary of a government agency out of the purview of the Major Crimes Act and possibly into the General Crimes Act or 18 U.S.C. § 641 , which prohibits the theft of government property.

This rearrangement of the prosecution of Indian burglaries in Indian country will result in a truly anomalous situation: an Indian charged with burglarizing his neighbor will be charged under the MCA, and therefore can be prosecuted by both the tribe and the federal government, but an Indian who burglarizes the BIA will be charged under the General Crimes Act, and therefore can only be prosecuted by the federal government if the tribe has not yet punished him. If the tribe has punished the offender, the federal government will be unable to prosecute him. Therefore, the ironic result is that the one scenario in which the federal government is barred from prosecuting an alleged burglary, even though it was a crime Congress thought sufficiently important to include in the MCA, will be when the offender burglarizes the government’s own property and the tribe has chosen to prosecute him. *1169 This result is reached despite the clear purpose of the MCA, to rectify incompatible or nonexistent tribal remedies for burglary and thirteen other offenses.

The majority argues that the government could also have prosecuted the defendant under § 641. However, if an Indian burglarizes a government building and rather than be charged under the MCA is instead charged under 18 U.S.C. § 641 as committing a theft of government property, the § 641 theft charge will not reflect the seriousness of the offense. A burglary charge does not have a monetary limitation whereas a § 641 theft charge for property taken with a value of less than $1,000 is considered a misdemeanor and a felony if the value is over $1,000. Furthermore, § 641 limits the penalties the government can seek to no more than 10 years for property valued at more than $1,000 and not more than a year for property valued at less than $1,000. Montana’s code states that a person convicted of the offense of burglary shall be imprisoned for any term not to exceed 20 years. Charging an individual under § 641 rather than the MCA undermines the MCA’s purpose of including burglary as one of the crimes considered serious enough to warrant intrusion into tribal sovereignty.

I cannot believe this is what Congress intended by the enactment of the MCA. Because the majority opinion thwarts the purpose of those statutes governing federal criminal jurisdiction in Indian country, I respectfully dissent.

. The General Crimes Act, in its entirety, states that:

18 U.S.C. §1152 .

. The Major Crimes Act, in its entirety, states:

18 U.S.C. § 1153 .