Back to the Future?

Back to the Future?

by Lillian Jamison-Cash -
Number of replies: 0

The Court’s reasoning in Oliphant v. Suquamish Indian Tribe demonstrates an unfortunate return to some of its backwards decisions in earlier cases. As far back as the Marshall Trilogy, the U.S. government (the Court or Congress) has consistently allowed its non-Indian citizens to encroach upon certain Indian rights; then, when challenged in Court, it reasons that it is simply acting in accordance with how things have been done. The Federal government relies on the “dependency” of Indian tribes to justify its jurisdiction over non-Indian crimes against Indians on reservations. Yet tribal justice systems’ flaws just may stem from their origin in American-style CFR courts. This is only the first of many examples of the Court’s use of false precedent in Oliphant.

First, “The Court began its decision with a recitation of facts not technically relevant to its ultimate outcome” (Royster, 59), citing the prevalence of non-Indians on the reservation as justification for the Federal government’s jurisdiction over the defendants. This seems ironic when one pauses to consider why there might be many non-Indians on the reservation. The Oliphant decision is based on the false precedent of “a common historical understanding that tribes could not exercise criminal jurisdiction over non-Indians” (Royster, 60).

This twisting of jurisprudence continued after Oliphant. That decision was construed later to further abrogate tribal sovereignty in Montana and Brendale, which limited tribal civil jurisdiction both in scope and in geographical space. It seems that each inch taken from tribal sovereignty in one case is a mile taken in the next one.  This teaches us that the doctrine of dependency has been constructed on false precedent and renders the U.S. government the arbiter of tribal justice.

The U.S.’s role as arbiter is clear even in later, more progressive cases like VAWA (and its re-enactment). In order to be considered for the VAWA (2013) pilot project, the three tribes in question had to be determined by the Justice Department to “have adequate safeguards in place to fully protect defendants’ rights under the Indian Civil Rights Act of 1968, as amended by VAWA 2013” (Justice Dept). Keeping in mind the ways in which ICRA is an assault on tribal sovereignty, VAWA further institutes the Federal government power over tribal affairs.

Atty General Holder’s comment that VAWA represents “a momentous step forward for tribal sovereignty and self-determination” is somewhat misleading; it is perhaps rather a partial rectification of past errors. Unfortunately, the Court’s rulings decide when to accede or deny sovereignty. While a good move, VAWA is small in scale, as it applies only to some tribes and only for some crimes.  

With so much bad precedent, the Court and Congress are not obligated to continue the small progress made with VAWA. The Court has already blatantly ignored Congressional acts and policies that favor tribal self-determination, acting instead on false precedent and on plenary power. If progress is to be made, it seems that executive and legislative acts that proclaim our current policy of self-determination and nation-to-nation negotiations must be taken seriously an acted upon, and decisions and rulings made accordingly. Otherwise, the future will hold more repetitions of history.