Meeds’s attack on the majority’s recommendations covered a wide range of areas: tribal self-government, jurisdiction, the United States’ legal obligation to tribes, and sovereign immunity, among others. Meeds’s comments regarding tribal sovereignty and the tribe’s jurisdictional authority over non-Indians are crucial to a discussion of Oliphant because they foreshadow not only Oliphant but many subsequent Supreme Court opinions. In Meeds’s opinion, tribes were not sovereign in the same sense that the United States or the individual states were. “The blunt fact of the matter,” said Meeds, “is that American Indian tribes are not a third set of governments in the American federal system. They are not sovereign. The Congress of the United States has permitted them to be self-governing entities but not entities which would govern others.”17 It then followed, according to Meeds’s theory, that if tribes were not sovereign then they could not have and “should not have” power over non-Indians or their property, “except in the narrowest circumstances.”18
Meeds then discussed the recent Federal Court of Appeals case, Oliphant v. Schlie.19 That decision held that tribes could prosecute non-Indians in tribal Courts for criminal violations occurring in Indian country. The Supreme Court had already granted certiorari, and Meeds was no doubt anxious to send a message to that body urging a more constricted interpretation of tribal sovereignty and the tribes’ power of governance over non-Indians. Meeds asserted that the federal court’s decision in Oliphant “invert[ed] the proper analysis and ignore[d] history.”20 Without explaining what history was ignored, or exactly how the alleged inversion had transpired, Meeds stated that the dissent of District Judge Anthony Kennedy was more correct because it pointed out that tribal jurisdiction over such non-Indian individuals “has generally not been asserted and that the lack of legislation on this point reflects a Congressional assumption that there was no such tribal jurisdiction. . . .”21 “The Oliphant case,” insisted Meeds, “does not dispose of the question, and even if it is upheld by the United States Supreme Court, the Congress must still decide whether Indian power over non-Indians is wise.”22 Meeds did not have to wait long to hear the Supreme Court’s answer. It was a ruling he must have found particularly comforting.
Factually, Oliphant is a most interesting case. The Suquamish were a very small tribe23 at the time of the decision—their homeland, with about 43 enrolled tribal members (19 adults and 24 minors), constituting less than 1.7 percent of the reservation population, who occupied only 37 percent of the land. The non-Indian population, by contrast, was nearly 3,000, or 98.3 percent, who owned in fee simple the remaining 63 percent of the 7,278 acres in the Suquamish Port Madison Reservation.
The Port Madison Reservation, like most others, had been allotted. Over time, non-Indians secured title to many Indian allotments by purchase through the secretary of the interior, through congressional laws which allowed the sale of Indian allotments in heirship, or through sales by individual Indians after trust restrictions had been lifted. Interestingly, the Suquamish tribe, unlike many others, did not grant their consent to non-Indian homesteading of unallotted or “surplus” lands within their reservation.24
HISTORICAL BACKGROUND
The Port Madison Indian Reservation is located in Kitsap County, Washington. The reservation was established through the treaty of Point Elliot25 in 1855, and the tribe was organized under the Indian Reorganization Act in 1934. Later they established a tribal constitution and a set of bylaws which were approved by the secretary of the interior on July 2, 1966.26 The tribe holds an annual “Chief Seattle Days” celebration, which is attended by thousands of people. This ceremonial had grown tremendously by the early 1970s, and with this growth there was a sharp increase in crimes associated with these large social events. The tribe had made several requests of state, county, and federal law-enforcement officials for manpower assistance to deal with these massive crowds. “The tribe was told that it would have to provide its own law enforcement out of tribal funds and with tribal personnel.”27 The newly instituted Suquamish Tribal Court, which had been set up in 1973, proceeded to develop a justice and law-enforcement program on the reservation by enacting a comprehensive law and order code. The law and order code covered a variety of offenses, from addiction to weapons. The tribe’s right to exercise such governmental authority was recognized by the Department of the Interior, and the Bureau of Indian Affairs.28
During the Chief Seattle celebration on August 19, 1973, Mark David Oliphant, a Port Madison resident and non-Indian, was arrested by tribal police and charged with assault and battery. Oliphant was arraigned in Suquamish Tribal Court by tribal judges Grace Duggan and Cecilia M. Hawk and then transported off the reservation to the Bremerton city jail on August 24. By agreement with the Bureau of Indian Affairs, Bremerton serves as a holding facility for the tribal court. Oliphant was later released on his own recognizance.
The other petitioner in the case, Daniel B. Belgarde, also a non-Indian resident of the reservation, was arrested a year later on October 12, 1974, by tribal authorities after a high speed chase on reservation roads. The chase ended when Belgarde’s vehicle (in which Oliphant happened to be a passenger) rammed into a tribal police car. Belgarde was charged with reckless driving in violation of section 59, chapter 3 of the Suquamish Tribal Law and Order Code. He was placed in jail in the off-reservation city of Port Angeles, Washington, which, like Bremerton, also had a contract with the tribe and the Bureau of Indian Affairs to hold criminal defendants. After posting bond, Belgarde appeared before the Suquamish Tribal Court for arraignment and was charged with reckless driving and damaging tribal property.
Both Oliphant and Belgarde applied for a writ of habeas corpus in the United States District Court for the Western District of Washington. They based their application for the writ on the grounds that the Suquamish Indian tribal court lacked criminal jurisdiction over non-Indians committing crimes against Indians on reservation land held in trust by the United States for the benefit of the tribe. In separate proceedings, District Judge Morril E. Sharp denied each of the petitions. Sharp maintained that the tribe’s law and order code was a valid expression of Suquamish sovereignty: a sovereignty which had been recognized “at all times” by the Interior Department, the Congress, and the courts. “So long,” said Sharp, “as a complete and independent sovereignty of an Indian tribe was recognized, its criminal jurisdiction, no less than its civil jurisdiction was that of any governing power.”29 Judge Sharp stressed that since the Suquamish tribe clearly had jurisdiction over both the person and subject matter, and since Oliphant had “been afforded all the protection available to him under the Indian Civil Rights Act,” then the application for a writ had to be denied.30
Oliphant appealed to the 9th Circuit Court of Appeals,31 which on August 24, 1976, affirmed the Suquamish tribe’s jurisdiction over non-Indians by a 2–1 margin.32 Judge Ben C. Duniway, writing for the majority, used elegant and historically, legally, and politically accurate data to show convincingly that American Indian tribes, as governments, had the right to protect the peace and safety of their citizens by prosecuting persons—regardless of their race—who voluntarily entered the territorial jurisdiction of that government and committed punishable offenses. Duniway was well aware that he was dealing with an issue of major importance. “This case,” he said, “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?”33
Oliphant’s primary argument in his appeal was that the Suquamish lacked such jurisdiction because Congress had never bestowed that power upon the tribe. Duniway, however, shredded that point. Drawing from informed federal Indian policy directives, prior congressional statutes, and Supreme Court Indian case law principles, Duniway said of Oliphant’s contention: “This misstates the problem. The proper approach to the question of tribal criminal jurisdiction is to ask ‘firs
t, what the original sovereign powers of the tribes were and, then, how far and in what respects these powers have been limited.’”34 More emphatically, Duniway declared that Judge Kennedy’s “dissenting opinion similarly misstates the problem.”35 “The question,” noted Duniway, “is not whether Congress has conferred jurisdiction upon the tribe. The tribe, before it was conquered, had jurisdiction, as any independent nation does. The question therefore is, did Congress (or a treaty) take that jurisdiction away? The dissent points to no action by the Congress, and no treaty language, depriving the tribe of jurisdiction.”36
Duniway was referring to the Reserved Rights doctrine discussed in the previous chapter. This doctrine is a political understanding that has been recognized in federal policies and laws dating back to the 1787 Northwest Ordinance. It is an understanding in which the tribes’ preconstitutional existence and extraconstitutional standing directly affirm their sovereign status, and any rights they did not specifically cede in their treaties or agreements with the United States they retain to themselves.
Duniway, citing directly from the foundational cases Cherokee Nation v. Georgia (1831), Worcester v. Georgia (1832), and more recent cases like McClanahan v. Arizona State Tax Commission (1973), said that while it was true that tribes had lost some layers of their preexisting sovereignty through military defeats or direct Congressional action, “[s]urely 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.”37 The question then becomes one of trying to ascertain whether any relevant treaties or congressional acts have “withdrawn” from the Suquamish their power to punish non-Indians.
After critical review of both the Suquamish Treaty of Point Elliot38 and their bilateral agreement with the United States in 1905,39 of the pertinent federal statutes, and finally of whether the tribe’s actions constituted any interference with federal policies, Judge Duniway concluded that nothing in the prevailing law or federal policies denied the Suquamish this power. On the contrary, “[w]ithout the exercise of jurisdiction by the Tribe and its courts, there could have been no law enforcement whatsoever on the Reservation during this major gathering which clearly created a potentially dangerous situation with regard to law enforcement. Public safety is an underpinning of a political entity.”40
Circuit Judge Anthony Kennedy, who would become a Supreme Court justice in 1988, wrote a dissent that would largely form the contextual framework for the Supreme Court opinion involving criminal jurisdiction. Kennedy’s contention focused on what powers had been delegated to tribes by the United States. In Kennedy’s view, Congress had never expressly granted to tribes the power to try non-Indians, therefore they clearly lacked such authority. The assumption by Kennedy that tribes were without criminal jurisdiction because it was not one of the delegated rights that he thought tribes were capable of exercising was diametrically opposed by Duniway, who assumed that tribes did have powers such as criminal jurisdiction, because it was one of their reserved rights not ceded away. Oliphant represents one of the legal/ideological/political dichotomies—delegated versus reserved—that precludes any consistently accurate articulation of Indian rights under the western legal paradigm. Other such dichotomous pairs include implied repeals versus explicit repeals, independent/semi-independent tribal status versus dependent tribal status, and tribes as nonincorporated polities versus tribes as incorporated polities. Since justices, depending on their proclivities, pick and choose among these, it is virtually impossible, notwithstanding the actual historical record and treaty-based relationship, for tribes to receive a consistent interpretation of their actual political legal standing vis-à-vis the states and the federal government.
ORAL ARGUMENTS BEFORE THE SUPREME COURT
Philip P. Malone, attorney for Oliphant and Belgarde, petitioned for a writ of certiorari on November 22, 1976. Malone’s major arguments were both racial and demographic. In his petition he emphasized the gross disparity in Indian versus non-Indian population and in the ownership of land on the reservation. As he noted: the 9th Circuit Court’s decision “results in sovereign jurisdiction and authority of an Indian tribe on Indian reservations over criminal offenses of non-Indians where the majority of the population and the land is not Indian . . . causing conflict in the application and enforcement of criminal laws and state and local governments as from laws of the Indian tribe in the application to non-Indian.”41
The tribe’s attorneys, in an effort to block the Court’s granting of certiorari, argued contrarily that the issue was simply whether a federally recognized “local government” had the right to protect its citizens. As they said: “That the government is an Indian tribe, and the alleged perpetrators are non-Indians, cannot change the nature of the case into one compelling Supreme Court review.”42 They astutely pointed out that Oliphant and Belgarde were not claiming violation of their rights to due process. “Rather,” they pointed out, “petitioner [Oliphant] takes the novel position that since his race differs from that of the government controlling the land on which he committed his offense, he is immune from prosecution by that government.”43 Furthermore, the tribe’s lawyers tried to distinguish the Suquamish demographic situation from that of other tribes. They argued that the tribe was not claiming exclusive jurisdiction but maintained that the jurisdiction was “concurrent with any other operative criminal jurisdiction—whether federal or state.”44
Neither of these very pertinent caveats, however, was to be accorded much respect by the Rehnquist-led majority. The Supreme Court granted the writ on June 13, 1977, and by the time the Court heard oral arguments on January 8, 1978,45 it was evident that a tremendous chasm existed between the Court and the Suquamish. It was also evident by the justices’ questioning of both attorneys that even the liberal justices (Thurgood Marshall and Harry Blackmun—William Brennan did not participate) were inclined to support Oliphant’s position rather than the tribe’s. For example, note the tone of the following interchange between Justice Marshall and Barry D. Ernstoff, lead attorney for the Suquamish:
[Marshall] The fundamental difference between you and your opponent is, who has the burden of proof with Congress, as I understand it. Your opponents say that unless Congress has conferred jurisdiction on the Indian tribe they do not have it and you say, unless Congress has taken it away, they do have it.46
[Ernstoff] I think that is—
[Marshall] And I do not see how this rapport really moves the ball one way or the other.
[Ernstoff] It does not, one hopes that legislation will come for this . . . which takes a great deal of time and a lot of discussion . . . [a political solution, he also said] . . . is a much better solution than this Court having to deal with the problem. . . .
[Marshall] But this case is here and now and not five years from now. . . . That all could have been handled by not arresting these men.
[Ernstoff] That brings up the problem of the facts, Mr. Justice Marshall.47 (emphasis mine)
One senses that Justice Marshall, who usually sided with tribes, felt that the Suquamish may have been too hasty in wanting to flex their newly resuscitated political clout and had taken on more than they could practically deal with. Yet another exchange, this one involving the U.S. Solicitor H. Bartow Farr III, who had filed an amicus in support of the Suquamish position, shows how strong judicial sentiment was against the tribal stance on their reserved criminal jurisdiction:
[Farr] First, at the heart of our submission and directly opposed to the position taken by Petitioners in the State of Washington, is the principle that the Indian tribes do not depend upon the United States for the creation of their powers of government. These powers instead are derived from an inherent sovereignty that antedates the European settlement of the United States and indeed, the formation of the United States itself. We do not depend on those [treaties, statutes, or the Constitution for tribal sovereignty]. We believe that the sovereignty antedates all of that an
d in fact, the reason that Congress did not pass statutes, for example, creating the sovereignty of the tribes.
[A Justice] And you suggest that we should just assume to recognize that?
[Farr] I believe that the Court has recognized it before and should again, yes sir.
[Justice] Well, even if we buy that position one hundred percent, the question would still remain whether or not that historic sovereignty included the power to try and convict non-tribal members of criminal offenses in violation of tribal law and certainly historically, before the white man got here, it did not, by hypothesis.48
This last statement, that “by hypothesis” Indians lacked criminal jurisdiction over whites “before the white man got here,” is an excellent example of judiciary probing for a rationale, in this case a hypothetical situation with disputable content, on which to deny tribal jurisdiction over non-Indians.
Farr, under intense questioning, weakened his own and, by extension, the Suquamish standing by positing that tribes, unlike the federal government or the states, had only a limited sovereignty. This meek assertion was immediately confronted by another justice who asserted: “Well, it leaves it open, does it not? I mean, you concede that it is not a full sovereignty—as indeed, you must.” Farr agreed: “We do concede that it is not a full sovereignty.” The justice then said: “And the question is, then does it include, as I say, the power to try and convict and punish either non-members of the tribe or non-Indians?” Farr lamely retorted, “That is right. I mean, I think that is a question which the Court has to decide in this case.”49
The tribe’s attorney, Barry Ernstoff, also had problems trying to convince the justices of the Suquamish’s right to exercise criminal jurisdiction over non-Indians. This was made even more difficult because Ernstoff, like Farr, also surrendered in part on the fundamental issue of tribal sovereignty. After querying by a justice who maintained that while tribes possessed some attributes of sovereignty, they clearly did not possess “all attributes of sovereignty,” Ernstoff acquiesced: “That is correct. Most attributes, what we call real sovereignty, have been given up by Indian tribes. There is no question about it.”50 He quickly recovered, though, and asserted that the doctrine of retained sovereignty was nonetheless valid. “I am arguing,” said Ernstoff, “that the Court’s analysis under those cases that Indian tribes must retain whatever it was they were except that which was expressly taken away by Congress, by treaty, or, in the analysis of this Court, has to be viable because if it is not, then Indian tribes really possess almost no power.”51
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