Oliphant v. Suquamish Indian Tribe

Background

In August 1973 Mark David Oliphant, a non-Indian living as a permanent resident with the Suquamish 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, a judge of the Ninth Circuit Court of Appeals at the time, dissented from this decision, 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.

Court decision

The U.S. Supreme Court 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."

Dissenting opinion

Justice Thurgood Marshall dissented. In his view, the right to punish all individuals who commit crimes against tribal law within the reservation was a necessary aspect of the tribe's sovereignty. His dissent read, in full:

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 Court 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

"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."

Evolution

Congress allowed the Tribal Courts the right to consider a lawsuit where a non-Indian man commits domestic violence towards a Native American woman on the territory of a Native American Tribe, through the passage of Violence Against Women Reauthorization Act of 2013 (VAWA 2013) signed into law on March 7, 2013 by President Obama. This was motivated by the high percentage of Native American women being assaulted by non-Indian men, feeling immune by the lack of jurisdiction of Tribal Courts upon them. This new law took effect on March 7, 2015, but also authorized a voluntary "Pilot Project" to allow certain tribes to begin exercising special jurisdiction sooner. On February 6, 2014, three tribes were selected for this Pilot Project: the Pascua Yaqui Tribe (Arizona), the Tulalip Tribes of Washington, and the Confederated Tribes of the Umatilla Indian Reservation (Oregon)