One of the worst relics of the US Supreme Court’s Indian jurisprudence is Oliphant v. Squamish Indian Tribe (1978), a decision that effectively signaled the end of federal policy to affirm tribal sovereignty. The legal logic behind the ruling was questionable, if not faulty, and the political forces behind the majority merit an evaluation.
Oliphant essentially ruled that Indians cannot prosecute or incarcerate non-Indians—Indian tribes lack jurisdiction over nonnatives for crimes committed in Indian country. The rationale was that there was a common historical notion that Indians could not exercise jurisdiction over non-Indians, the Squamish Tribe’s treaty did not explicitly state it had the right to prosecute crimes in Indian country, and tribal governments had intrinsic limitations so that they cannot exercise governmental powers inconsistent with their dependent status. As Royster writes, there was never a shared historical notion concerning criminal jurisdiction, the treaty should have been interpreted according to the canons of construction as a reservation of rights, and the dependent status doctrine is leftover from racist parts of the Marshall Trilogy. If one focuses on the dependent status doctrine, then there is a simple analogy. States are generally considered dependent on the federal government for various funds. However, certain powers are reserved to the states, such as police power, which the federal government cannot exercise. Myriad crimes such as murder, assault, rape, arson, etc, are prosecuted under local and/or state laws, and the federal government cannot step in to prosecute an acquitted defendant, thanks to the Fifth Amendment. So if tribal governments shall hold sovereignty even close to that of states, they should be able to prosecute crimes committed on their reservations.
Justice William Rehnquist concluded: We recognize that some Indian tribal court systems have become increasingly sophisticated and resemble in many respects their state counterparts. […] Finally, we are not unaware of the prevalence of non-Indian crime on today's reservations which the tribes forcefully argue requires the ability to try non-Indians. But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians.”1 In these simple last sentences, he shows an implicit racism in that it is positive that tribal courts are growing similar to state courts. Also, he shows a perhaps feigned ignorance of the crime rate on Indian reservations. Finally, he returns to Kagama’s plenary power doctrine, claiming that Congress alone can decide to change the power of Indian governments.
A final note is that the majority of six was composed of conservatives in Rehnquist and White, centrists in Powell and Stewart, and liberals in Blackmun and Stevens. The dissent had a liberal, Marshall, and a conservative, Burger. Thus, once again, oppressive Indian policy is a bipartisan effort crafted by judges of all ideologies.
1. Oliphant v. Squamish Indian Tribe, 435 U.S. 191 (1978)