''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. The court opinion was written by

William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...

, and a

dissenting opinion A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opinions are norm ...

was written by

Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...

, who was joined by Chief Justice

Warren Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul Colleg ...

. Justice

William J. Brennan William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the seventh-longest serving justice ...

did not participate in the decision. Congress partially abrogated the Supreme Court's decision by enacting the Violence Against Women Reauthorization Act of 2013, which recognizes the criminal jurisdiction of tribes over non-Indian perpetrators of domestic violence that occur in Indian Country when the victim is Indian.

Background

In August 1973 Mark David Oliphant, a non-Indian living as a permanent resident with the

Suquamish The Suquamish () are a Lushootseed language, Lushootseed-speaking Native Americans in the United States, Native American people, located in present-day Washington (state), Washington in the United States. They are a southern Coast Salish peopl ...

Tribe on the

Port Madison Indian Reservation The Port Madison Native Reservation is an Indigenous Reservation in the U.S. state of Washington belonging to the Suquamish Tribe, a federally recognized indigenous nation and signatory to the Treaty of Point Elliott of 1855. Location The reserv ...

in northwestern Washington,French, Laurence Armand. Native American Justice. Chicago, IL: Burnham Inc., Publishers, 2003. pg. 59 was arrested and charged by tribal police with assaulting a tribal officer and resisting arrest during the Suquamish Tribe's

Chief Seattle Chief Seattle ( – June 7, 1866) was a Suquamish and Duwamish chief. A leading figure among his people, he pursued a path of accommodation to white settlers, forming a personal relationship with "Doc" Maynard. The city of Seattle, in th ...

Days.435 U.S. at 194. Knowing that thousands of people would gather in a small area for the celebration, the tribe requested

Kitsap County Kitsap County is located in the U.S. state of Washington. As of the 2020 census, its population was 275,611. Its county seat is Port Orchard, and its largest city is Bremerton. The county was formed out of King County and Jefferson County on ...

and the Bureau of Indian Affairs for additional law enforcement assistance.''Oliphant v. Schlie''
544 F.2d 1007, 1013
(9th Cir. 1976), rev'd sub nom. ''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978) (quoting appellees' brief, pages 27-28) The county sent just one deputy, and the Bureau of Indian Affairs sent no one. When Oliphant was arrested, at 4:30 a.m., only tribal officers were on duty. Oliphant applied for a

writ of habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

in federal court and claimed he was not subject to tribal authority because he was not Native American. He challenged the exercise of criminal jurisdiction by the tribe over non-Indians.Duthu, N. Bruce. American Indians and the Law. New York, NY: Penguin Group, 2008. p.19

Procedural history

Oliphant's application for a writ of habeas corpus was rejected by the lower courts. The

Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

upheld tribal criminal jurisdiction over non-Indians on Indian land because the ability to keep law and order on tribal lands was an important attribute of

tribal sovereignty Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States. Originally, the U.S. federal government recognized American Indian trib ...

that had been neither surrendered by treaty nor removed by the

US Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washin ...

under its

plenary power A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full"). United States In United States constitutional law, plenary p ...

over Tribes. Judge

Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...

, then a judge of the Ninth Circuit Court of Appeals, dissented from the decision and said he found no support for the idea that only treaties and acts of Congress could take away the retained rights of tribes. He considered that doctrine of

was not "analytically helpful" in resolving the issue.

Ruling

The Supreme Court ruled in Oliphant's favor by holding that Indian tribal courts do not have criminal jurisdiction over non-Indians for conduct occurring on Indian land and reversed the Ninth Circuit's decision. More broadly, the Supreme Court held that Indian tribes cannot exercise powers "expressly terminated by Congress" or "inconsistent with their status" as "domestic dependent nations." Analyzing the history of Congressional actions related to criminal jurisdiction in Indian Country, the Supreme Court concluded that there was an "unspoken assumption" that tribes lacked criminal jurisdiction over non-Indians. While "not conclusive," the "commonly shared presumption of Congress, the Executive Branch, and lower federal courts that tribal courts do not have the power to try non-Indians carrie considerable weight." The Court incorporated that presumption into its analysis of the

Treaty of Point Elliot The Treaty of Point Elliott of 1855, or the Point Elliott Treaty,—also known as Treaty of Point Elliot (with one ''t'') / Point Elliott Treaty—is the lands settlement treaty between the United States government and the Native American tribes ...

, which was silent on the issue of tribal criminal jurisdiction over non-Indians. The Court rejected the Ninth Circuit's approach, which interpreted the treaty's silence in favor of tribal sovereignty and applied the "long-standing rule that legislation affecting the Indians is to be construed in their interest." Instead, the Court revived the doctrine of implicit divestiture. Citing '' Johnson v. M'Intosh'' and ''

Cherokee Nation v. Georgia ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...

'', the Court considered criminal jurisdiction over non-Indians an example of the "inherent limitations on tribal powers that stem from their incorporation into the United States," similar to tribes' abrogated rights to alienate land. By incorporating into the United States, the Court found that Tribes "necessarily

ave ''Alta Velocidad Española'' (''AVE'') is a service of high-speed rail in Spain operated by Renfe, the Spanish national railway company, at speeds of up to . As of December 2021, the Spanish high-speed rail network, on part of which the AVE s ...

up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress". Arguing that non-Indian citizens should not be subjected to another sovereign's "customs and procedure", the Court analogizes to ''

Crow Dog Crow Dog (also Kȟaŋǧí Šúŋka, Jerome Crow Dog; 1833 – August 1912) was a Brulé Lakota subchief, born at Horse Stealing Creek, Montana Territory. Family He was the nephew of former principal chief Conquering Bear, who was killed in 1854 in ...

''. In ''Crow Dog'', which was decided before the

Major Crimes Act The Major Crimes Act (U.S. Statutes at Large, 23:385)ndtradition" from their own. Although the Court found no inherent Tribal criminal jurisdiction, it acknowledged the "prevalence of non-Indian crime on today's reservations which the tribes forcefully argue requires the ability to try non-Indians" and invited "Congress to weigh in" on "whether Indian tribes should finally be authorized to try non-Indians".

Dissenting opinion

Justice

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:435 U.S. at 212 (Marshall, J., dissenting).

I agree with the court below that the "power to preserve order on the reservation ... is a ''
sine qua non ''Sine qua non'' (, ) or ''condicio sine qua non'' (plural: ''condiciones sine quibus non'') is an indispensable and essential action, condition, or ingredient. It was originally a Latin legal term for " conditionwithout which it could not be" ...
'' 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

joined the dissenting opinion.

Effects

In 1990 the Supreme Court extended ''Oliphant'' to hold that tribes also lacked criminal jurisdiction over Indians who were not 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 the legislation in ''United States v. Lara''. Scholars have extensively criticized ''Oliphant''. 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," and 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."

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'' 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 if a non-Indian man commits domestic violence towards a Native American woman on the territory of a Native American tribe by passing Violence Against Women Reauthorization Act of 2013 (VAWA 2013), signed into law on March 7, 2013, by President

Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the ...

. It was motivated by the high percentage of Native American women being assaulted by non-Indian men, who felt immune because of the lack of jurisdiction of tribal courts. The new law allowed tribal courts to exercise jurisdiction over non-Indian domestic violence offenders but also imposed other obligations on tribal justice systems, including the requirement for tribes to provide licensed attorneys to defend the non-Indians in tribal court. The new law took effect on March 7, 2015, but also authorized a voluntary "Pilot Project" to allow certain tribes to begin exercising special jurisdiction earlier. On February 6, 2014, three tribes were selected for this Pilot Project:Department of Justice
"Justice Department Announces Three Tribes to Implement Special Domestic Violence Criminal Jurisdiction Under VAWA 2013"
/ref> the

Pascua Yaqui Tribe The Pascua Yaqui Tribe of Arizonais a federally recognized tribe of Yaqui Native Americans in state of Arizona. Descended from the Yaqui people whose original homelands include the Yaqui River valley in western Sonora, Mexico and southern Arizo ...

(

Arizona Arizona ( ; nv, Hoozdo Hahoodzo ; ood, Alĭ ṣonak ) is a state in the Southwestern United States. It is the 6th largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona is part of the Fou ...

), the Tulalip Tribes of Washington, and the

Confederated Tribes of the Umatilla Indian Reservation The Confederated Tribes of the Umatilla Indian Reservation are the federally recognized confederations of three Sahaptin-speaking Native American tribes who traditionally inhabited the Columbia River Plateau region: the Cayuse, Umatilla, and ...

(

Oregon Oregon () is a state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington, while the Snake River delineates much of its eastern boundary with Idaho. T ...

References

External links

* {{caselaw source , case = ''Oliphant v. Suquamish Indian Tribe'', {{ussc, 435, 191, 1978, el=no , courtlistener =https://www.courtlistener.com/opinion/109812/oliphant-v-suquamish-tribe/ , googlescholar = https://scholar.google.com/scholar_case?case=1685760140612800397 , justia =https://supreme.justia.com/cases/federal/us/435/191/ , loc =http://cdn.loc.gov/service/ll/usrep/usrep435/usrep435191/usrep435191.pdf , oyez =https://www.oyez.org/cases/1977/76-5729 1978 in United States case law United States Native American criminal jurisdiction case law United States Supreme Court cases United States Supreme Court cases of the Burger Court Native American history of Washington (state)