NCJ Number
74138
Journal
University of Pittsburgh Law Review Volume: 41 Issue: 1 Dated: (1979) Pages: 75-88
Date Published
1979
Length
14 pages
Annotation
This article examines the effect of the Oliphant decision on Indian tribes and reviews the historical background of the development of Indian law and its relationship to the American judicial system and society.
Abstract
Early treaties between Indian tribes and the United States were diplomatic agreements to protect the tribes from lawless frontiersmen; later, they became primarily an instrument of land transfer. Statutory enactments altered the tribal, State, and Federal jurisdictions. For example, the Major Crimes Act of 1885 extended Federal power by granting jurisdiction to Federal courts over seven major crimes even when committed by Indians. Ex parte Kenyon held, in 1878, that the tribal court had no authority to try the non-Indian defendant for a theft occurring outside tribal territory. In Oliphant v. Schlie, Oliphant, a non-Indian charged with violation of tribal ordinances on the reservation where he lived, was denied on appeal a writ of habeas corpus. The appeals court found that the tribes still maintained the power to preserve order on the reservation, the sovereignty that the Suquamish originally possessed. Tracing the history of the treaty-making period and the legislation extending Federal law over Indian reservations, the Supreme Court in 1978 reversed the appeals court decision. It held that Indian tribal courts do not have criminal jurisdiction over non-Indians. A more complete review of past legislation finds numerous signs to indicate that Congress intended the Indian tribes to retain concurrent jurisdiction, however. The Western Territory Bill, a companion bill to the General Crimes Act, indicated a clear congressional understanding of concurrent jurisdiction. Potential difficulties in upholding tribal jurisdiction over non-Indians include the quality of justice, due to Indian governments' tendencies toward corruption and favoritism, and reluctance of non-Indians to be subject to tribal government regulations in which they have no voice. This latter issue is more difficult with respect to non-Indian residents of reservations. It is concluded that as long as the land is classified by the Federal government as being within the reservation, it should be subject to the jurisdiction of the Indian tribes, who have immediate control over it. The current situation is contributing to the Indians' cultural dissolution. Sixty-eight footnotes which include references are provided.