Oliphant v. Suquamish Indian Tribe
Encyclopedia
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978) is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians
. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist
; a dissenting opinion was written by Thurgood Marshall
, who was joined by Chief Justice Warren E. Burger
. Judge William J. Brennan abstained.
Tribe on the Port Madison Indian Reservation
in northwest Washington, was arrested and charged by tribal police with assaulting a tribal officer and resisting arrest. Oliphant applied for a writ of habeas corpus in federal court, because he claimed he was not subject to tribal authority because he was not an American Indian. He was not challenging the exercise of criminal jurisdiction by the tribe over non-Indians; he was challenging the existence of this jurisdiction by the tribe.
His application for a writ of habeas corpus was rejected by the lower courts. They thought that the ability to keep law and order within tribal lands was an important attribute of tribal sovereignty
that was neither surrendered by treaty nor removed by the United States Congress
under its plenary power
. Judge Anthony Kennedy
dissented from this ruling saying he found no support for the idea that only treaties and acts of Congress could take away the retained rights of tribes. According to Judge Kennedy the doctrine of tribal sovereignty
was not "analytically helpful" in resolving this issue.
upheld Oliphant's appeal, citing the Civil Rights Act of 1968
in their decision. The Supreme Court reversed the decision of the lower courts. The decision stated that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress. The decision stated that tribal powers could be divested both explicitly and implicitly, if they are in violation of their status of "domestic dependent nations."
Justice Thurgood Marshall dissents, saying he believes that the right to punish all individuals who commit crimes against tribal law within the reservation is a necessary aspect of the tribes sovereignty. In his dissent, Justice Marshall states:
Chief Justice Warren E. Burger joined the dissenting opinion.
extended the Oliphant decision to hold that tribes also lacked criminal jurisdiction over Indians who weren't members of the tribe exercising jurisdiction in Duro v. Reina
. Within six months, however, Congress abrogated the decision, by amending the Indian Civil Rights Act to affirm that tribes had inherent criminal jurisdiction over nonmember Indians. In 2004, the Supreme Court upheld the constitutionality of this legislation in United States v. Lara.
Scholars have extensively criticized the decision. According to Professor Bethany Berger, "By patching together bits and pieces of history and isolated quotes from nineteenth century cases, and relegating contrary evidence to footnotes or ignoring it altogether, the majority created a legal basis for denying jurisdiction out of whole cloth." Rather than legal precedent, the holding was "dictated by the Court's assumptions that tribal courts could not fairly exercise jurisdiction over outsiders and that the effort to exercise such jurisdiction was a modern upstart of little importance to tribal concerns. Professor Philip Frickey describes Oliphant, along with the subsequent decisions limiting tribal jurisdiction over non-Indians, as rooted in a “normatively unattractive judicial colonial impulse,” while Professor Robert Williams condemns the decision as "legal auto-genocide" According to Dr. Bruce Duthu, the case showed "that the project of imperialism is alive and well in Indian Country and that courts can now get into the action." Professor Duthu continues
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1978) is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
; a dissenting opinion was written by Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
, who was joined by Chief Justice Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
. Judge William J. Brennan abstained.
Background
In August 1973 Mark David Oliphant, a non-Indian living as a permanent resident with the SuquamishSuquamish
The Suquamish are a Lushootseed-speaking Native American Tribe, located in present-day Washington in the United States.The Suquamish are a southern Coast Salish people; they spoke a dialect of Lushootseed, which belongs to the Salishan language family. Like many Northwest Coast natives, the...
Tribe on the Port Madison Indian Reservation
Port Madison Indian Reservation
The Port Madison Indian Reservation is an Indian reservation in northern Kitsap County, Washington. It occupies 30.273 km² on the western and northern shores of Port Madison, and is divided into two separate parcels by Miller Bay. The unincorporated towns of Suquamish and Indianola both lie...
in northwest Washington, was arrested and charged by tribal police with assaulting a tribal officer and resisting arrest. Oliphant applied for a writ of habeas corpus in federal court, because he claimed he was not subject to tribal authority because he was not an American Indian. He was not challenging the exercise of criminal jurisdiction by the tribe over non-Indians; he was challenging the existence of this jurisdiction by the tribe.
His application for a writ of habeas corpus was rejected by the lower courts. They thought that the ability to keep law and order within tribal lands was an important attribute of tribal sovereignty
Tribal sovereignty
Tribal sovereignty in the United States refers to the inherent authority of indigenous tribes to govern themselves within the borders of the United States of America. The federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to...
that was neither surrendered by treaty nor removed by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
under its plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
. Judge Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
dissented from this ruling saying he found no support for the idea that only treaties and acts of Congress could take away the retained rights of tribes. According to Judge Kennedy the doctrine of tribal sovereignty
Tribal sovereignty
Tribal sovereignty in the United States refers to the inherent authority of indigenous tribes to govern themselves within the borders of the United States of America. The federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to...
was not "analytically helpful" in resolving this issue.
Court decision
The U.S. Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
upheld Oliphant's appeal, citing the Civil Rights Act of 1968
Civil Rights Act of 1968
On April 11, 1968 U.S. President Lyndon B. Johnson signed the Civil Rights Act of 1968, also known as the Indian Civil Rights Act of 1968. Title VIII of the Civil Rights Act of 1968 is commonly known as the Fair Housing Act, or as CRA '68, and was meant as a follow-up to the Civil Rights Act of 1964...
in their decision. The Supreme Court reversed the decision of the lower courts. The decision stated that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress. The decision stated that tribal powers could be divested both explicitly and implicitly, if they are in violation of their status of "domestic dependent nations."
Dissenting opinion
"I agree with the court below that the "power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed." Oliphant v. Schlie, 544 F.2d 1007, 1009 (CA9 1976). In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation. Accordingly, I dissent."
Chief Justice Warren E. Burger joined the dissenting opinion.
Effects
In 1990 the U.S. Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
extended the Oliphant decision to hold that tribes also lacked criminal jurisdiction over Indians who weren't members of the tribe exercising jurisdiction in Duro v. Reina
Duro v. Reina
In Duro v. Reina, 495 U.S. 676 , the U.S. Supreme Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations...
. Within six months, however, Congress abrogated the decision, by amending the Indian Civil Rights Act to affirm that tribes had inherent criminal jurisdiction over nonmember Indians. In 2004, the Supreme Court upheld the constitutionality of this legislation in United States v. Lara.
Scholars have extensively criticized the decision. According to Professor Bethany Berger, "By patching together bits and pieces of history and isolated quotes from nineteenth century cases, and relegating contrary evidence to footnotes or ignoring it altogether, the majority created a legal basis for denying jurisdiction out of whole cloth." Rather than legal precedent, the holding was "dictated by the Court's assumptions that tribal courts could not fairly exercise jurisdiction over outsiders and that the effort to exercise such jurisdiction was a modern upstart of little importance to tribal concerns. Professor Philip Frickey describes Oliphant, along with the subsequent decisions limiting tribal jurisdiction over non-Indians, as rooted in a “normatively unattractive judicial colonial impulse,” while Professor Robert Williams condemns the decision as "legal auto-genocide" According to Dr. Bruce Duthu, the case showed "that the project of imperialism is alive and well in Indian Country and that courts can now get into the action." Professor Duthu continues
"The Oliphant Court essentially elevated a local level conflict between a private citizen and an Indian tribe into a collision of framework interests between two sovereigns, and in the process revived the most negative and destructive aspects of colonialism as it relates to Indian rights. This is a principal reason the decision has attracted so much negative reaction...Oliphant's impact on the development of federal Indian law and life on the ground in Indian Country has been nothing short of revolutionary. The opinion gutted the notion of full territorial sovereignty as it applies to Indian tribes."
Further reading
- Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 Minn. L. Rev. 609 (1979)
- Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047 (2005) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898011
- Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Nonmembers, 109 Yale L.J. 1 (1999)
- Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man’s Indian Jurisprudence, 1986 Wis. L. Rev. 219 (1986)