Oliphant v. Squamish Indian Tribe is another one of the most illogical, racist, and destructive decisions within all of Indian law. The court decided that Indian tribes cannot prosecute non-Indian offenders for criminal offenses. This was subsequently extended in Montana to nearly all civil offenses as well, robbing the tribe of the majority of its sovereign jurisdictional authority. There’s little reasoning to find behind the decision, which only protects non-Indians from tribal prosecution, but allows nonmember Indians to be tried. If this were truly a matter of tribal jurisdiction, it doesn’t make much sense that tribal courts could prosecute both tribal members and non-members, but only if they are Indian. The only obvious reason for this restriction is that of race. The Court sends a clear message here that Indian governments can do what they like with other Indians, but they have no authority over whites.
Oliphant builds on a hundred and fifty years of legal precedent. The Marshall trilogy first established the sovereignty of Indian nations with respect to states, while subsuming them within federal authority. Mid nineteenth century Congress then restricted tribal jurisdiction to exclude authority over non-Indians. The Major Crimes act then further diminished tribal authority over all offenses committed on the reservation. ICRA, supposedly well intentioned, continued this trend by imposing constitutional requirements upon tribal governments, ignoring the sovereignty of tribes to operate under their own laws and within their own legal systems. Oliphant is only the continuation of this trend. it builds on the reasoning in all of these decisions that Indians are incompetent, uncivilized, and as a consequence their legal system and their justice cannot be objective or fair. While this logic draws from an ignorant Eurocentric view of indigenous society, culture, and law, the court’s decision is even more problematic. In effect, Oliphant is saying, tribal courts are unjust and we need to protect white people from being tried unfairly, but it doesn’t matter what the Indians do to each other.
If we are considering a response to Oliphant, and one is most definitely needed, then we have to disrupt this entire line of reasoning. In doing so would we not only combat the latent racism within Indian law itself, but we would provide the groundwork for repairing the damage done to tribal sovereignty. To reclaim full civil and criminal jurisdiction over tribal lands would not only be symbolically powerful, but would return a number of powers and authority to tribal governments to manage their own lands and protect their own people. If there is any aspect of tribal sovereignty that is necessary for tribes to recover, it’s the ability to maintain law and order within their own communities.