435 U.S. 191 (1978), 76-5729, Oliphant v. Suquamish Indian Tribe

Docket Nº:No. 76-5729
Citation:435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209
Party Name:Oliphant v. Suquamish Indian Tribe
Case Date:March 06, 1978
Court:United States Supreme Court

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435 U.S. 191 (1978)

98 S.Ct. 1011, 55 L.Ed.2d 209



Suquamish Indian Tribe

No. 76-5729

United States Supreme Court

March 6, 1978

Argued January 9, 1978




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. Pp. 195-212.

(a) From the earliest treaties with Indian tribes, it was assumed that the tribes, few of which maintained any semblance of a formal court system, did not have such jurisdiction absent a congressional statute or treaty provision to that effect, and at least one court held that such jurisdiction did not exist. Pp. 196-201.

(b) Congress' actions during the 19th century reflected that body's belief that Indian tribes do not have inherent criminal jurisdiction over non-Indians. Pp. 201-206.

(c) The presumption, commonly shared by Congress, the Executive Branch, and lower federal courts, that tribal courts have no power to try non-Indians, carries considerable weight. P. 206.

(d) By submitting to the overriding sovereignty of the United States, Indian tribes necessarily yield the power to try non-Indians except in a manner acceptable to Congress, a fact which seems to be recognized by the Treaty of Point Elliott, signed by the Suquamish Indian Tribe. Pp. 206 211.

544 F.2d 1007 (Oliphant judgment), and Belgarde judgment, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BURGER, C.J., joined, post p. 212. BRENNAN, J., took no part in the consideration or decision of the cases.

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REHNQUIST, J., lead opinion

[98 S.Ct. 1013] MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Two hundred years ago, the area bordering Puget Sound consisted of a large number of politically autonomous Indian villages, each occupied by from a few dozen to over 100 Indians. These loosely related villages were aggregated into a series of Indian tribes, one of which, the Suquamish, has become the focal point of this litigation. By the 1855 Treaty of Point Elliott, 12 Stat. 927, the Suquamish Indian Tribe

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relinquished al rights that it might have had in the lands of the State of Washington and agreed to settle on a 7,276-acre reservation near Port Madison, Wash. Located on Puget Sound across from the city of Seattle, the Port Madison Reservation is a checkerboard of tribal community land, allotted Indian lands, property held in fee simple by non-Indians, and various roads and public highways maintained by Kitsap County.1

The Suquamish Indians are governed by a tribal government which, in 1973, adopted a Law and Order Code. The Code, which covers a variety of offenses from theft to rape, purports to extend the Tribe's criminal jurisdiction over both Indians and non-Indians.2 Proceedings are held in the Suquamish

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Indian Provisional Court. Pursuant to the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, defendants are entitled to many of the due process protections accorded to defendants in federal or state criminal proceedings.3 However, the guarantees are not identical. Non-Indians, for example, are excluded from Suquamish tribal court juries.4

Both petitioners are non-Indian residents of the Port Madison Reservation. Petitioner Mark David Oliphant was arrested by tribal authorities during the Suquamish's annual Chief Seattle Days celebration and charged with assaulting a tribal officer and resisting arrest. After arraignment before the tribal court, Oliphant was released on his own recognizance. Petitioner Daniel B. Belgarde was arrested by tribal authorities after an alleged high-speed race along the Reservation highways that only ended when Belgarde collided with a tribal police vehicle. Belgarde posted bail and was released. Six days later, he was arraigned and [98 S.Ct. 1014] charged under the tribal Code with "recklessly endangering another person" and injuring tribal property. Tribal court proceedings against both petitioners have been stayed pending a decision in this case.

Both petitioners applied for a writ of habeas corpus to the United States District Court for the Western District of Washington. Petitioners argued that the Suquamish Indian Provisional Court does not have criminal jurisdiction over non-Indians. In separate proceedings, the District Court disagreed

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with petitioners' argument and denied the petitions. On August 24, 1976, the Court of Appeals for the Ninth Circuit affirmed the denial of habeas corpus in the case of petitioner Oliphant. Oliphant v. Schlie, 544 F.2d 1007. Petitioner Belgarde's appeal is still pending before the Court of Appeals.5 We granted certiorari, 431 U.S. 964, to decide whether Indian tribal courts have criminal jurisdiction over non-Indians. We decide that they do not.


Respondents do not contend that their exercise of criminal jurisdiction over non-Indians stems from affirmative congressional authorization or treaty provision.6 Instead, respondents

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urge that such jurisdiction flows automatically from the "Tribe's retained inherent powers of government over the Port Madison Indian Reservation." Seizing on,language in our opinions describing Indian tribes as "quasi-sovereign entities," see, e.g., Morton v. Mancari, 417 U.S. 535, 554 (1974), the Court of Appeals agreed, and held that Indian tribes,

though conquered and dependent, retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress.

According to the Court of Appeals, criminal jurisdiction over anyone committing an offense on the reservation is a "sine qua non" of such powers.

The Suquamish Indian Tribe does not stand alone today in its assumption of criminal jurisdiction over non-Indians. Of the 127 reservation court systems that currently exercise criminal jurisdiction in the United States, 33 purport to extend that jurisdiction to non-Indians.7 Twelve other Indian tribes have enacted ordinances which would permit the [98 S.Ct. 1015] assumption of criminal jurisdiction over non-Indians. Like the Suquamish these tribes claim authority to try non-Indians not on the basis of congressional statute or treaty provision, but by reason of their retained national sovereignty.

The effort by Indian tribal courts to exercise criminal

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jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist. Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure, and not by formal judicial processes; emphasis was on restitution, rather than on punishment. In 1834, the Commissioner of Indian Affairs described the then status of Indian criminal systems:

With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint.

H.R.Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).

It is therefore not surprising to find no specific discussion of the problem before us in the volumes of the United States Reports. But the problem did not lie entirely dormant for two centuries. A few tribes during the 19th century did have formal criminal systems. From the earliest treaties with these tribes, it was apparently assumed that the tribes did not have criminal jurisdiction over non-Indians absent a congressional statute or treaty provision to that effect. For example, the 1830 Treaty with the Choctaw Indian Tribe, which had one of the most sophisticated of tribal structures, guaranteed to the Tribe "the jurisdiction and government of all the persons and property that may be within their limits." Despite the broad terms of this governmental guarantee, however, the Choctaws at the conclusion of this treaty provision

express a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe any of their national regulations.8

Art. 4, 7 Stat. 333 (emphasis [98 S.Ct. 1016] added). Such a

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request for affirmative congressional authority is inconsistent with respondents' belief that criminal jurisdiction over non-Indians is inherent in tribal sovereignty. Faced by attempts

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of the Choctaw Tribe to try non-Indian offenders in the early 1800's. the United States Attorneys General also concluded that the Choctaws did not have criminal jurisdiction over non-Indians absent congressional authority. See 2 Op.Atty.Gen. 693 (1834); 7 Op.Atty.Gen. 174 (1855). According to the Attorney General in 1834, tribal criminal jurisdiction over non-Indians is, inter alia, inconsistent with treaty provisions recognizing the sovereignty of the United States over the territory assigned to the Indian nation and the dependence of the Indians on the United States.

At least one court has previously considered the power of Indian courts to try non-Indians, and it also held against jurisdiction.9 In Ex parte Kenyon, 14 F.Cas. 353 (No. 7,720)

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(WD Ark. 1878), Judge Isaac C. Parker, who as District Court Judge for the Western District of Arkansas was constantly exposed to the legal relationships between Indians and non-Indians,10 held that, to give an Indian tribal [98 S.Ct. 1017] court "jurisdiction of the person of an offender, such offender must be an Indian." Id. at 355. The conclusion of Judge Parker was reaffirmed

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only recently in a 1970 opinion of the Solicitor of...

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