The Oliphant Decision: Anathema to Tribal Sovereignty

Facing two hundred years of failed Indian policy, the US government committed itself to the new goal of tribal sovereignty. It seems so obvious today, and a lapse of human rights that it didn’t occur until then, but the idea was novel at the time. Instead of choking Natives with involuntary Christianity, Natives had freedom to practice their own spirituality. Instead of trying to stamp out indigenous language and culture, these basic building blocks of identity were able to come out from hiding and secret practice. Natives now had the right to determine their own government, apart from meddling organizations that claimed to be Indian benefactors while profiteering off keeping Natives in misery.

It all seems so simple. How did anyone possibly think Indians could succeed without these basic human rights, without having these shackles to a healthy society thrown off? Yet it took two hundred years to occur to the US government that enfeebling a people, erasing the foundations of their community, and trying to recast them in the European image, was not the formula for success. Tribal sovereignty was to end the perpetual Indian serfdom to the BIA. Tribal sovereignty was to allow the freedom, dignity, and space for a suppressed people to enter the American dream on their own terms.

New endorsement of tribal sovereignty was a result of the rising public conciousness during the civil rights age. More were seeing that to fulfill America’s own creed “out of many, one”, the previously marginalized had to be brought into the fold, given redress. African Americans made their call for justice known through marches in the south. Mexican Americans through organizing in the orchards of the west. Asian Americans as they built the USA’s railroad infrastructure. Yet what of Native Americans, too isolated, and in minority, for anyone to hear a voice shouting for justice? Terminating the reservations, forcing assimilation through boarding schools and relocation policies, proved unfeasible, as well as cruel. It was time for a new solution, one that didn’t rehash the old injustice of further exterminating Native culture. Tribal sovereignty, looking at Natives as partners, rather than a nation of reprobates needing the USA’s iron hand, was to accomplish this goal.

Tribal sovereignty is why the Oliphant vs. Suquamash Indian Tribe supreme court decision of 1978 is a harmful precedent to all Native American tribes. The case went as follows: Mark Oliphant, a non-Indian living on the Port Madison Indian reservation, was arrested by tribal police for assaulting an officer and resisting arrest. He submitted for a a writ of habeas corpus in federal court, saying he was not subject to tribal authority because he was a non-Indian. The lower courts rejected his writ, on the opinion that keeping law and order in Indian land was an important aspect of tribal sovereignty. The supreme court reversed the decision of the lower courts, in a 6-2 decision, saying tribal courts have no authority over non-members who commit crimes on tribal lands.

What this does is undermine every tribal justice system, because the supreme court applied this ruling not just to Suquamash, but to all Indian tribes throughout the United States. The supreme court used this incident to clip the the wings of tribal sovereignty before it could even be taken for a test flight. How are Indian people ever allowed to become self-sufficient? When law and the ability to uphold it are crucial to any society, and Indian law is meaningless to non-Indians even while on Indian land?

The decision strips tribal courts of the ability to prosecute a sizable portion of crimes committed in their area of jurisdiction. Effectively, it hands jurisdiction over all non-Indian crimes committed on Indian land to federal authorities. What this means in practice is that non-Indians have no law on a reservation. The federal court is too far removed, and too unconcerned, to take up their duties on these cases. This is an injustice, because it means many of the crimes non-Indians commit on reservations fall through the cracks. Everything from rape, to spousal abuse, to bad business dealings, to abuse in schools and hospitals, can easily go without prosecution because of the Oliphant decision.

The Oliphant decision should be contested and repealed on several grounds:

1.) A people can’t attain semblance of sovereignty without law and a judicial branch of government to uphold that law. The Oliphant decision cripples the tribal judiciary, and renders all non-Indians on reservations exempt from the law. This is a regressive decision, because out of one side of the mouth, the US claims it wants Indian tribes to be sovereign and self-determined. Out of the other side of the mouth, policies like those that derive from the Oliphant decision cripple tribal sovereignty. Under the Oliphant decision, Indian tribes are no partner, with representation within the government on their own fate. They are just an occupied nation, a degraded subservient. A US citizen couldn’t go to any other nation, commit any wrong they like, then claim they aren’t subject to that nation’s laws. Even within the US, a person couldn’t go to another state, conduct activities that contravene all that states laws, then claim the law doesn’t apply because they come from a different state. Yet this is what the Oliphant decision has enforced: that tribal courts can’t prosecute those who come to their lands and do wrong.

2.) The decision is short sighted, because it looks only at the specific situation of the Suquamish tribe. Among Suquamish tribal lands, Natives are in a minority. The Suquamish reservation is an open reservation, and much of the tribal land has been sold or otherwise diminished. The majority of the Suquamish reservation is regular deeded land, rather than tribal land which falls under trust responsibility. The line of reasoning in the Oliphant decision is that since the Natives on the reservation are in such small minority, and their land holdings fragmented and small, their courts should not be binding to non-Natives.

Yet this particular context can’t be extrapolated to all Native tribes. Many reservations are the opposite, with most the land being tribal trust responsibility land. In many reservations, Natives are in the vast majority over non-Natives. Oliphant vs. Suquamash is in no way normative for the specific conditions that exist on each reservation, and shouldn’t be used to make a one-size-fits-all policy.

3.) Non-Natives often hold jobs in the educational and medical sectors of reservations. What the Oliphant decision does is open these fields to abuse, without possibility of reprieve. A teacher could slap a student, a doctor could commit all kinds of malpractices, and under Oliphant, if they’re non-Indian, no one would have jurisdiction to apprehend that doctor or teacher. As a non-Native, the teacher, or doctor, would be outside tribal jurisdiction.

Supposedly, the tribes are to ask the state to prosecute their cases against non-Natives. The way this works out in practice is the state simply says it isn’t their problem, and looks no further into the matter. In this way, Oliphant creates a class of citizen exempt from the law. Non-members can do nearly anything they want within reservations, without fear of being prosecuted.

4.) Non-Natives also conduct many manners of commerce on reservations. The Oliphant decision is also unfair to this commerce. Many non-Natives travel through the reservation. Speed limits can no longer be enforced on non-Natives. Truckers who are non-Native will be exempt from safety regulations while in reservation boundaries. Many non-Natives, often through the Catholic Church, run schools on reservations. Oliphant will make these school officials unaccountable to the tribes which they serve. Many non-Native ranchers lease land from Indians on reservations. Oliphant will render these ranchers outside the law when they are on the reservation.

5.) The way Oliphant undermines the tribal court is heavily one-sided. A non-Indian can still take an Indian to court on the reservation. Yet an Indian with a grievance against a non-Indian has no legal redress. In theory, the tribal court could arrange for a state court to prosecute their cases against non-Indians. In practice, this will be disastrous, because relations between states and reservations have always been antagonistic at best.

Oliphant creates a legal loophole for any non-Native person on a reservation. Only federal courts, which are far removed and unconcerned, have jurisdiction to prosecute them for infractions of the law. The Oliphant decision is a move away from tribes being quasi-sovereign on their lands. In all of history, legal jurisdiction has typically adhered to the rule “when in Rome, do as the Romans do”. If a person conducts commerce within a nation, chooses to live in that nation, they naturally fall under the laws of that nation. Yet the Oliphant decision makes non-Natives exempt to law in Indian lands, and so does a great injustice to Native American sovereignty.


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