Oliphant

Oliphant

by Grace Quinn -
Number of replies: 0

Not only is the interpretation of rights in Oliphant v. Suquamish is not only completely baseless; it disregards and irreparably damages the few previous judicial decisions that had the intent of protecting and supporting Indian interests. It is notably out of line, as the author is quick to point out, with the canons of construction. The canons of construction are not a policy of generosity and understanding by the U.S., but rather an acknowledgement of the extreme disadvantage of tribes during the negotiations and compositions of all the treaties, based on power dynamics and language barriers. If a treaty agreement was stated ambiguously enough that politicians of the same Anglo law system and general language practices cannot interpret it now, it is not highly likely that the tribes or members involved had a lucid idea of what they were signing away at the time. It is opportunistically dishonest for the courts to dismiss the canons of construction for any reason. This ruling is furthermore in conflict with the reserved rights doctrine, the most important outcome of U.S. v. Winnans. The reserved rights doctrine says that a treaty is “a reservation by the Indians of rights already possessed and not granted away by them.” All tribal rights that preceded European colonization should be in tact until explicitly revoked through a treaty or legislation. If the ability of tribes to take action against an outsider who assaults a police officer is “inconsistent with their status,” then when did this status originate? Indians held all sovereign rights when the first white person stepped onto their continent, and the Supreme Court makes no attempt to discern exactly where it was that tribes evidently lost their jurisdiction. The Oliphant v. Suquamish ruling repeatedly employs the phrase “inherent limitations” to vaguely justify why tribes are not entitled to certain rights. However, the example it provides to support the validity of this concept goes back to Johnson v. M’Intosh and the doctrine of discovery. This doctrine is based on no treaty or shared principle of Indian-European interaction; it is based on racism and ethnocentric white belief that the Indian people were essentially part of the wilderness and therefore could not claim it. So when the Supreme Court claims that the right of Indians to sell land only directly to the U.S. government, they are claiming an “inherent limitation” of a tribe itself, not its contemporary legal status. And so “inherence” ends up suggesting that tribes can only really exist and hold status with relation to the United States. Tribes cannot have access to certain aspects of sovereignty, because in reality U.S. judges and politicians have not learned accepted that they ever had “real” sovereignty.