Oliphant v. Schlie, No. 74-2154

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore DUNIWAY and KENNEDY; DUNIWAY; KENNEDY
Citation544 F.2d 1007
PartiesMark David OLIPHANT, Plaintiff-Appellant, v. Edward SCHLIE, Chief of Police of the City of Bremerton, et al., Defendant- Appellees.
Decision Date24 August 1976
Docket NumberNo. 74-2154

Page 1007

544 F.2d 1007
Mark David OLIPHANT, Plaintiff-Appellant,
v.
Edward SCHLIE, Chief of Police of the City of Bremerton, et
al., Defendant- Appellees.
No. 74-2154.
United States Court of Appeals,
Ninth Circuit.
Aug. 24, 1976.

Page 1008

Philip P. Malone (argued), Poulsbo, Wash., for plaintiff-appellant.

Barry Ernstoff (argued), Seattle, Wash., for defendant-appellees (Suquamish Tribe).

Page 1009

Before DUNIWAY and KENNEDY, Circuit Judges, and BURNS, * District judge.

DUNIWAY, Circuit Judge:

This case involves a question of Indian law which has been unresolved since it first arose almost a century ago: what is the jurisdiction of an Indian tribe over non-Indians who commit crimes while on Indian tribal land within the boundaries of the reservation? See Ex parte Kenyon, C.C.W.D.Ark., 1878, Fed.Cas.No.7720, 14 Fed.Cas. 353. Oliphant was arrested on the Port Madison Indian Reservation in the state of Washington by Suquamish tribal police on August 19, 1973, and charged before the Provisional Court of the Suquamish Indian Tribe with assaulting an officer and resisting arrest. He was incarcerated by order of the tribal court in lieu of $200 bail, but then released on his own recognizance by that court. Before trial he petitioned the United States District Court for a writ of habeas corpus, alleging that an Indian tribal court can have no jurisdiction over a non-Indian. The district court denied the writ and Oliphant appeals. We affirm.

Jurisdiction in this case is founded on 25 U.S.C. § 1303 and 28 U.S.C. §§ 2241(c)(1) and (3). See Colliflower v. Garland, 9 Cir., 1965, 342 F.2d 369, 379. Oliphant's release on his own recognizance did not deprive the district court of jurisdiction. Hensley v. Municipal Court, 1973, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294.

Oliphant argues that the Suquamish have no jurisdiction over non-Indians because Congress never conferred such jurisdiction on them. This misstates the problem. 1 The proper approach to the question of tribal criminal jurisdiction is to ask "first, what the original sovereign powers of the tribes were, and, then, how far and in what respects these powers have been limited." Powers of Indian Tribes, 1934, 55 I.D. 14, 57. See Ortiz-Barraza v. United States, 9 Cir., 1975, 512 F.2d 1176, 1179. "It must always be remembered that the various Indian tribes were once independent and sovereign nations . . . ." McClanahan v. Arizona State Tax Comm., 1973, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129, who, though conquered and dependent, retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress. Worcester v. Georgia, 1832, 6 Pet. (31 U.S.) 515, 560-61, 8 L.Ed. 483; Cherokee Nation v. Georgia, 1831, 5 Pet. (30 U.S.) 1, 17-18, 8 L.Ed. 25.

Surely the power to preserve order on the reservation, when necessary by punishing those who violate tribal law, is a sine qua non of the sovereignty that the Suquamish originally possessed. As the Eighth Circuit held seven decades ago when it upheld the right of the Creek Nation to tax non-Indian residents:

It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the agreement of the nation itself or by the

Page 1010

superior power of the republic it is taken from it. Buster v. Wright, 8 Cir., 1905, 135 F. 947, 950, appeal dismissed, 1906, 203 U.S. 599, 27 S.Ct. 777, 51 L.Ed. 334.

The Supreme Court, in dictum, has declared not only that Indian tribes have criminal jurisdiction, but that "if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive." Williams v. Lee, 1959, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251.

As we recently said in United States v. Burns, 9 Cir., 1975, 529 F.2d 114 (1975):

Just as state law is not to apply on Indian lands, unless expressly authorized by federal statute, so also, federal enclave law is not to apply unless expressly authorized. 529 F.2d at 117.

We turn to the relevant treaties and Congressional acts to see whether any has withdrawn from Suquamish the power to punish Oliphant for a violation of the tribal law and order code. Our approach is influenced by the long-standing rule that "legislation affecting the Indians is to be construed in their interest." 2 United States v. Nice, 1916, 241 U.S. 591, 599, 36 S.Ct. 696, 60 L.Ed. 1192; Santa Rosa Band of Indians v. Kings County, 9 Cir., 1975, 532 F.2d 655, at 660-661 (1975). See also Bryan v. Itasca County, 1976, 426 U.S. 373, at 391-393, 96 S.Ct. 2102, 2113-2114, 48 L.Ed.2d 710; McClanahan v. Arizona State Tax Comm., supra, 411 U.S. at 174, 93 S.Ct. 1257.

The starting point in determining how much of their original sovereignty the Suquamish have lost is the Treaty of Point Elliott, 12 Stat. 927 (1859), the first treaty between these people and the United States. While other treaties with other tribes had expressly granted or withdrawn the power to try non-Indian criminals, the Treaty of Point Elliott was silent on the subject. M. Price, Law and the American Indian 22-27 (1973). The only significant surrender of internal autonomy was contained in Article IX of the Treaty, in which the Indian signatories agreed not to "shelter or conceal offenders against the law of the United States, but to deliver them up to the authorities for trial." 12 Stat. 929. See Arizona ex rel. Merrill v. Turtle, 9 Cir., 1969, 413 F.2d 683, cert. denied, 1970, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494.

The second and last treaty or agreement between the Suquamish and the United States, 33 Stat. 1078 (1905), involved the relinquishment of land by the Indian tribes residing on the Port Madison reservation. It did not mention the transfer of any powers and specifically provided that it did not deprive the Indians of any benefits "not inconsistent with the provisions of this agreement." 33 Stat. 1079. No treaty has deprived the Suquamish of criminal jurisdiction over Oliphant. We therefore shift our attention to Congressional acts.

Oliphant relies on three statutes to support his thesis that Indian tribes do not have criminal jurisdiction over non-Indians. First, he argues that 18 U.S.C. § 1152 has withdrawn criminal jurisdiction over non-Indians from Indian tribes. We cannot read § 1152 as withdrawing from Indian tribes criminal jurisdiction that they otherwise possess. It extends federal criminal laws applicable to federal enclaves to Indian country, but it does not attempt either to extinguish tribal jurisdiction or to declare federal jurisdiction exclusive. In light of the principles of statutory construction enunciated in Nice, supra, and Santa Rosa Band of Indians, supra, this could end our inquiry. However, we find additional support in the legislative history of § 1152.

Section 1152 originated as § 4 of the Indian Trade and Intercourse Act of 1802, 2 Stat. 141. It was reenacted in 1817 (3 Stat. 383), 1834 (§ 25 of the Trade and Intercourse Act, 4 Stat. 733), and 1854 (§ 3 of the Act of March 27, 1854, 10 Stat. 270), when it was modified to eliminate the possibility that an Indian subjected to tribal discipline could also be tried in federal court. 3 Except

Page 1011

for minor language changes when it was incorporated into the Revised Statutes and later into the United States Code, § 1152 has not changed since 1854.

Our reading of the Congressional history convinces us that § 1152 was not intended, and should not be read, to prohibit Indian tribes from prosecuting non-Indians for offenses against tribal law committed on the reservation. Section 1152 can be explained more rationally as an attempt to protect Indian tribes, who had no established legal system and whose authority was frequently challenged by unsympathetic state governments, see Cherokee Nation v. Georgia, supra, from depredations by "unprincipled white men." H.R.Rep.No.474, 23 Cong., 1st Sess. 98 (1834).

(I)t is rather of courtesy than of right that we undertake to punish crimes committed in that territory by and against our own citizens. And this provision of (§ 25 of the Trade and Intercourse Act of 1834) is retained principally on the ground that it may be unsafe to trust to Indian law in the early stages of their Government. Id. at 13. 4

Only one case cited by Oliphant, Ex parte Kenyon, supra, tends to support his argument that § 1152 deprives Indian tribes of jurisdiction over non-Indians. 5 Kenyon, however, concerned a crime committed outside the territorial boundaries of "Indian country," a fact which figured prominently in the court's opinion. See Elk v. Wilkins, 1884, 112 U.S. 94, 108, 5 S.Ct. 41, 28 L.Ed. 643. The assertion that an Indian tribe can have no jurisdiction over a non-Indian was dictum, mentioned only in passing and without supporting authority. Our de novo examination of Indian law decisions since Cherokee Nation v. Georgia, supra, convinces us that the statement by Judge Parker in Kenyon and cited as supporting Oliphant's position is wrong. Law and The American Indian, supra, 171-75; Recent Developments, Indian Tribal Courts, 18 St. Louis U.L.J. 461, 462-64 (1975).

Second, Oliphant argues that the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302, ousts the tribal court of jurisdiction. That Act applies certain due process requirements to Indian tribes exercising powers of self-government because the Supreme Court in Talton v. Mayes, 1896, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196, had held that the Bill of Rights in the Federal Constitution did not apply to Indian tribal governments. Nothing in the Indian Bill of Rights purports to withdraw any criminal jurisdiction of the Indian tribes. It recognizes such jurisdiction, but prescribes certain due process type limitations upon its exercise.

Section 1302...

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34 practice notes
  • State v. Schmuck, No. 58987-9
    • United States
    • United States State Supreme Court of Washington
    • 6 Mayo 1993
    ...can be found in the dissent to the Court of Appeals' opinion in Oliphant, which was reversed by the Supreme Court. Oliphant v. Schlie, 544 F.2d 1007 (9th Cir.1976), rev'd, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The Supreme Court opinion in Oliphant largely adopted the position ......
  • Nevada v Hicks, 991994
    • United States
    • United States Supreme Court
    • 25 Junio 2001
    ...the dependent status of the tribes, and so cannot survive without express congressional delegation." Id., at 564; cf. Oliphant v. Schlie, 544 F.2d 1007, 1015 (CA9 1976) (Kennedy, J., dissenting) ("The concept of sovereignty applicable to Indian tribes need not include the power to prosecute......
  • Macarthur v. San Juan County, Civil No. 2:00-CV-584BSJ.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 2 Julio 2008
    ...terminated by Congress and those powers `inconsistent with their status.'" Id. at 208, 98 S.Ct. 1011 (quoting Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir.1976) (emphasis supplied by the Court)). "`Indian law,'" Oliphant draws principally upon the treaties drawn and executed by the Exec......
  • Dairyland Greyhound Park, Inc. v. Doyle, No. 2003AP421.
    • United States
    • Wisconsin Supreme Court
    • 14 Julio 2006
    ...680 N.W.2d 666. We do not address the Panzer court's decision regarding the duration provisions. Id., ¶¶ 78-82. 5. Oliphant v. Schlie, 544 F.2d 1007, 1013 (9th Cir.1976) (reversed on other grounds by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) (sup......
  • Request a trial to view additional results
34 cases
  • State v. Schmuck, No. 58987-9
    • United States
    • United States State Supreme Court of Washington
    • 6 Mayo 1993
    ...can be found in the dissent to the Court of Appeals' opinion in Oliphant, which was reversed by the Supreme Court. Oliphant v. Schlie, 544 F.2d 1007 (9th Cir.1976), rev'd, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The Supreme Court opinion in Oliphant largely adopted the position ......
  • Nevada v Hicks, 991994
    • United States
    • United States Supreme Court
    • 25 Junio 2001
    ...the dependent status of the tribes, and so cannot survive without express congressional delegation." Id., at 564; cf. Oliphant v. Schlie, 544 F.2d 1007, 1015 (CA9 1976) (Kennedy, J., dissenting) ("The concept of sovereignty applicable to Indian tribes need not include the power to prosecute......
  • Macarthur v. San Juan County, Civil No. 2:00-CV-584BSJ.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 2 Julio 2008
    ...terminated by Congress and those powers `inconsistent with their status.'" Id. at 208, 98 S.Ct. 1011 (quoting Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir.1976) (emphasis supplied by the Court)). "`Indian law,'" Oliphant draws principally upon the treaties drawn and executed by the Exec......
  • Dairyland Greyhound Park, Inc. v. Doyle, No. 2003AP421.
    • United States
    • Wisconsin Supreme Court
    • 14 Julio 2006
    ...680 N.W.2d 666. We do not address the Panzer court's decision regarding the duration provisions. Id., ¶¶ 78-82. 5. Oliphant v. Schlie, 544 F.2d 1007, 1013 (9th Cir.1976) (reversed on other grounds by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) (sup......
  • Request a trial to view additional results

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