with whom Mr. Justice Powell and Mr. Justice Rehnquist join, dissenting.
As the opinion of the Court demonstrates, the Major Crimes Act, 18 U. S. C. §§ 1153, 3242, was enacted in response to this Court’s decision in Ex -parte Crow Dog, 109 U. S. 556. The Act conferred jurisdiction upon federal district courts over certain enumerated crimes committed by Indians on an Indian reservation, leaving tribal jurisdiction intact as to all other crimes. An Indian tried in a federal court under the Act is guaranteed equal procedural rights, 18 U. S. C. § 3242, including the benefits and burdens of Fed. Rule Crim. Proc. 31 (c), dealing with a lesser included offense.
In these respects, I agree with the Court. But the Court goes on to hold “that where an Indian is prosecuted in federal court under the provisions of the Act, the Act does not require that he be deprived of the protection afforded by an instruction on a lesser included offense. . . .” Ante, at 214. I think this holding would be correct only if the lesser included offense were one over which the federal court had jurisdiction. Because the trial court did not have jurisdiction over the “lesser included offense” in the present case, I must respectfully dissent.1
It is a commonplace that federal courts are courts of limited jurisdiction, and that there are no common-law offenses against the United States. “The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.” United States v. Hudson, 7 Cranch 32, 34. “It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms.” *216Todd v. United States, 158 U. S. 278, 282. See 1 J. Moore, Federal Practice ¶ 0.60 [7]. And it is also clear that simple assault by an Indian on an Indian reservation, the purported “lesser included offense” in this case, comes within no federal jurisdictional statute. The Court in effect holds that Fed. Rule Crim. Proc. 31 (c) implicitly operates to confer federal jurisdiction over simple assault in the circumstances of this case, and with all respect this seems to me a holding utterly without support.
The Rule states that:
“The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.” (Emphasis added.)
The Rule is thus phrased in terms of “offenses.” It seems to me clear that “offense” means federal offense, and this view is confirmed by the fact that by virtue of the Rule a lesser included offense instruction is authorized with respect to “an attempt” only where the attempt itself is also a federal crime.
The conclusion that a lesser included offense instruction is possible only when the lesser offense is within federal jurisdiction does not violate 18 U. S. C. § 3242, providing 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.” For this conclusion would apply as well in any instance where Congress has established a divided criminal jurisdiction between a federal district court and another forum. See, e. g., DeFlumer v. Mancusi, 443 F. 2d 940 (criminal jurisdiction in federal district court over 16-year-old defendants only when charged with certain enumerated crimes). Congress established jurisdiction *217in the federal district courts only over certain specifically enumerated offenses committed by Indians on Indian reservations. It vested a residual jurisdiction in other forums over all other offenses. Accordingly, I conclude that a lesser included offense instruction would have been improper in the present case, where the federal court had no jurisdiction over the lesser offense of simple assault.2 See Kills Crow v. United States, 451 F. 2d 323, 325.
The Court seems to agree that a United States Attorney could not seek an indictment in a federal district court of an Indian for simple assault committed on an Indian reservation. This being so, I can find no basis for concluding that jurisdiction comes into being simply by-motion of the defense. “It needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.” People’s Bank v. Calhoun, 102 U. S. 256, 260-261. See also 1 J. Moore, Federal Practice ¶ 0.60 [4]. Were the petitioner’s motion for an instruction on simple assault to be granted, and were a jury to convict on that offense, I should have supposed until the Court’s decision today that the conviction could have been set aside for want of jurisdiction.
The Court does not reach any other possible ground for reversing this conviction, and, accordingly, neither do I.
The petitioner was not charged with "assault resulting in serious bodily injury,” the offense specified in the Major Crimes Act, but instead with assault with intent to commit serious bodilj'- injury, S. D. Comp. Laws Ann. § 22-18-12 (1967). This was apparently because the Major Crimes Act provides that “assault resulting in serious bodily injury” is to be “defined and punished in accordance with the laws of the State in which such offense was committed.” Since South Dakota appears to have no statute identically matching the offense described in the Major Crimes Act, § 22-18-12 of the South Dakota Laws was relied upon to prosecute the offense charged here. See also Kills Crow v. United States, 451 F. 2d 323. In a case where no serious bodily injury occurred, a defendant might well argue that his prosecution under this state law definition is no more under the jurisdiction of a federal district court than would be a prosecution for simple assault.