Contradictions in Oliphant and Montana

Contradictions in Oliphant and Montana

by Elizabeth Whipple -
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The infamous Oliphant v. Suquamish ruling was one that has had enormous consequences for the sovereignty of Indian tribes in this country. The court’s decision that tribes lack jurisdiction to prosecute non-Indians for crimes committed on reservations was one that placed further limits on tribal self-government, but it was the passing of the Montana and its exceptions that truly gave this decision its broad reach.  In this case, the court, in consideration of Oliphant, laid out two vague instances in which Indian tribes would retain civil jurisdiction over non-Indians.

 If the government actually followed its set guidelines for the handling of Indian policy—that it is based in treaty rights which are to be “construed liberally in favor of Indians”—then the ambiguity of the Montana exceptions would actually be promising. The wording of the document includes open phrases like “…or other means” and says that a tribe retains inherent power to exercise civil authority over non-Indians “when that conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe.” It could be argued that essentially any way that Indians would choose to deal with almost any situation regarding a non-Indian could fall under these rules. In fact, it is easy to argue that these exceptions completely overturn Oliphant—if a non-tribal citizen is acting in a harmful way, the tribe can exercise civil authority over them—the exceptions do not specify what exactly this authority entails.

However, in true form for the United States government, the legacy of interpretations of Montana was exactly the opposite of favorable for Indians.   What Montana and its exceptions actually meant was the creation of a platform for the government to justify further stripping of Indians’ rights. Royster’s article discusses many of the cases that followed addressing the decision in Montana, resulting in, as the author puts it, a type of “slow torture” in which the situations in which the Montana exceptions were allowed to apply and Indians were allowed to have jurisdiction over non-Indians were slowly narrowed down.  Whether it was the decision that an automobile accident on a reservation did not directly impact the tribe (Strate v. A-1 Contractors) or the court’s decision to restrict tribal rights to zone fee land because there was not enough evidence that this had a direct impact on the welfare of the tribe, the courts continuously chipped away at the tribe’s rights to exercise any sort of authority over non-tribal members.

Even in Montana, the court held that the Crow Tribe had no authority to regulate hunting and fishing by non-tribal pwoplw on fee lands within the reservation. As Deloria argues in Custer Died for your Sins, many Indians historically have depended on fishing and hunting for their livelihood, and overfishing and overhunting by non-Indians can have a disastrous effect not only on the amount of game available to Indians (as we saw in Winans) but also on the environment of and quality of life on the reservation. To argue that this is not tied to the economic security or welfare of the tribe is, simply put, absolutely ridiculous. Additionally, to state that a tribe may retain authority when the “political integrity” is threatened, and in the same decision state that Indians cannot regulate non-Indians, is in itself an undeniable contradiction. Although unsurprising that decisions like Oliphant and Montana were able to pass through the highest court in our country, the lack of logic and blatant ignorance of the harmful impacts that these decisions would have, not to mention the unreasonable decisions that would follow from Montana’s ambiguous and contradictory nature, once again I am left wondering how on earth a country that claims to be a beacon of justice and freedom can leave court case results like these unchecked and unchanged.