Good Article on Oliphant

If you've ever wondered about the source of the jurisdictional maze on Indian reservations that often prevents people like rape victims from getting justice, look no farther than a case commonly referred to as "Oliphant."

Today, there is a very good article, Blackfeet want remedy for Oliphant v. Suquamish, on Indian Country Today that does a good job of describing how that case came about.

Below is a long excerpt from that article:

Oliphant indicated that only Congress could give tribes the power to try and punish non-Indians in their tribal justice systems. The case arose on the Port Madison Indian Reservation in Washington state. Tribal police arrested two non-Indians during the Suquamish’s annual Chief Seattle Days celebration. Mark David Oliphant was charged with assaulting a tribal officer and resisting arrest. Daniel Belgarde was arrested and charged with recklessly endangering another person and injuring tribal property.

The tribal code, adopted in 1973, covered a variety of offenses from theft to rape. It extended the tribe’s criminal jurisdiction to Indians and non-Indians. Both men filed a writ of habeas corpus challenging the tribe’s jurisdiction over them. The U.S. District Court for the Western District of Washington and the 9th Circuit Court of Appeals denied the petitions. When the case reached the Supreme Court, the tribe argued that it had inherent powers of government over the Port Madison Indian Reservation. The tribe did not claim that these powers arose from treaties or congressional legislation. At the time, of the 127 reservation court systems that exercised criminal jurisdiction, 33 purported to extend that jurisdiction to non-Indians. Twelve other tribes had enacted ordinances that would permit the assumption of criminal jurisdiction over non-Indians.

The court, in reaching its decision, reviewed the history of the tribes through its treaties and congressional statutes. Overall, the court interpreted tribal sovereignty as limited by the U.S. government’s power to protect them. In return for this protection, tribes lost the power to exercise control over non-Indians in criminal matters. While the court acknowledged that this ruling leaves the problem of crime on Indian reservations committed by non-Indians unresolved, the court clearly pointed to Congress to remedy the situation.

To date, several bills have been proposed to address the jurisdictional maze on Indian reservations, but none have become law. Similarly, many tribes have lobbied to overturn Oliphant through national organizations such as the National Congress of American Indians and petitions to members of Congress. Yet, Oliphant stands like an evil spirit over reservation criminal justice systems.

Last month, Senator Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs, introduced a draft for the Tribal Law and Order Act. This bill, if enacted, would make incremental steps to an Oliphant remedy in the following areas: It would increase tribal courts ability to sentence offenders to up to three years imprisonment and up to $15,000 in fines from the current limits of one year of incarceration and $5,000 in fines; it would increase funding for law enforcement and tribal courts; and it would set up a Law and Order Commission to study jurisdiction over crimes committed in Indian country and the impact of that jurisdiction on the investigation and prosecution of Indian country crimes and residents of Indian land. One goal of the commission would be to consider how to simplify jurisdiction in Indian country. The commission would have two years from the enactment of the legislation to issue a report to Congress.

As you can see, the Dorgan bill is only a first, and rather small, step, but at least the problem is being taken seriously. Hopefully, well see better legislation after the commmission does further study of the issue.