Today is the anniversary of the Supreme Court ruling in  Oliphant v. Suquamish, a case that involved a native community along the Salish Sea, a white interloper, and the evisceration of the power of native peoples to govern and preserve order in their communities.  The Court issued its ruling on this date in 1978.

When I revised Native America and completed the second edition, I wanted to include more discussion of the role played by the American judiciary in defining and limiting that slippery concept we call sovereignty, and to look closely at the practices of an activist court applied to  Native American tribal governments

I talk a lot about the law and the courts.  I like to have students in my American Indian law course begin at the beginning, or one of a number of possible beginnings, by reading the United States Constitution.  Indians are mentioned twice in that august document.  There is a reference to “Indians not taxed” as being excluded from the tally of population required to calculate representation.  And then there is Article I, Section 8, spelling out the powers of Congress.  Among the long list of things that the legislative branch can do is “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Commerce.  What does it mean?  The students in my class ponder that question.  They read the Indian Trade and Intercourse Act of 1790. Like a number of pieces of legislation enacted by the first federal congress, the Trade and Intercourse Act elaborated upon the sparse language in the constitution.  Under the Trade and Intercourse Act, trade was licensed and regulated.  Land purchases from Indians not overseen and approved by the United States government were declared invalid.  Congress claimed the power to regulate those instances when native peoples and American citizens interacted with each other.  Importantly,  Congress claimed no authority over the internal affairs of American Indian nations.

Native nations were autonomous nations.   But that autonomy gradually was defined away. Chief Justice John Marshall, in 1831 and 1832, defined native polities as “domestic dependent nations.”  They could not carry on diplomacy with powers outside of the United States, nor sell their lands to any party but the United States, but they were immune to any state interference.  The State of Georgia’s prosecution of an American missionary resident in the Cherokee Nation was thus deemed unconstitutional, even if Andrew Jackson refused to enforce the decision.

But a series of decisions beginning in the last quarter of the nineteenth century chipped away at the autonomy of native nations even farther. Congress could extend its criminal jurisdiction over Indian country because the very weakness of the Indians, caused by the actions of the American government, demanded protection.  If the relationship of native peoples to the United States resembled, as Chief Justice Marshall had said, that of a ward to its guardian, in the 1886 Kagama decision the Court held that the government had the power to legislate for those communities, to protect them by making native peoples subject to federal criminal jurisdiction for certain “Major Crimes.”

The rule that emerged over time, and through the law, came to be known by legal scholars as explicit divestiture.  Native American nations could do essentially whatever they wanted unless they had been explicitly forbidden from doing so by a treaty or an act of congress, both of which were the “supreme law of the land” according to the Constitution.

And this is where Oliphant comes in.  The facts of Oliphant, according to Judith Royster,  are straightforward. “Mark David Oliphant and his co-defendant were on the Port Madison Reservation during the Suquamish Tribe’s annual celebration. Tribal police arrested both men in separate incidents. Oliphant was charged with assaulting a tribal officer and resisting arrest. The other man was charged with reckless endangerment and injury to tribal property after he led tribal police on a high-speed chase that ended when he crashed into a tribal police car. Both men sought a writ of habeas corpus in federal district court. The district court denied the petitions, the Ninth Circuit affirmed in Oliphant’s case, and the Supreme Court took the cases on review.”

Oliphant asserted that because he was not a member of the Suquamish tribe, and despite his residence on their land, that tribal authorities lacked the authority to prosecute him.  The Supreme Court agreed.  In a devastating ruling, Justice William Rehnquist held that

an examination of our earlier precedents satisfies us that, even ignoring treaty  provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.

Without citing any evidence, Rehnquist concluded that “by acknowledging their dependence on the United States, in the Treaty of Point Elliott, the Suquamish were, in all probability, recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation.”  The treaty does not explicitly say that, nor did the Suquamish specifically give up that power, but Rehnquist did not seem to care.

Oliphant, in essence, produced a new principle for measuring the powers of tribal governments to police their communities.  Adding to the doctrine of explicit divestiture came Rehnquist’s elaboration: the doctrine of implicit divestiture.  Native nations could do anything they wanted, unless explicitly prohibited by the terms of a treaty or an act of Congress or, now, if the power in question were somehow inconsistent with their status as domestic dependent nations.  Defining what was and was not inconsistent with this status was murky at best.

It was, over the course of one hundred and forty years, quite a slide.  The Supreme Court in Oliphant cited little law. It did not cite the constitution.  It simply stated that the exercise of criminal jurisdiction over a non-member in this case was inconsistent with their status as a domestic dependent nation. And the consequences—of Oliphant and the doctrine of implicit divestiture, were significant. It limited significantly the ability of Native American nations to preserve order on their lands, and to police the activities of non-members within their boundaries.  The decision was, according to Royster, “a morass of bad reasoning,” and a ruling that affirmed that the Supreme Court, rather than the military or missionaries, was now the locus of imperial power over native nations in the United States.