Appendix — Oliphant v. Suquamish Tribe

Supreme Court brief1978

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APPENDIX

— — — — — i

In the Supreme Court of the Anited States

OCTOBER TERM, 1977

No. 76-5729

MARK DAVID OLIPHANT AND DANIEL B. BELGARDE,

PETITIONERS,

Vv.

THE SUQUAMISH INDIAN TRIBE, ET AL,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NIN7H CIRCUIT

- PETITION FOR CERTIORARI FILED

NOVEMBER 22, 1976

CERTIORARI GRANTED JUNE 13, 1977

APPENDIX

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-5729

MARK DAVID OLIPHANT AND DANIEL B. BELGARDE,

PETITIONERS,

THE SUQUAMISH INDIAN TRIBE, ET AL,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR CERTIORARI FILED

NOVEMBER 22, 1976

CERTIORARI GRANTED JUNE 13, 1977

SUBJECT INDEX

MARK DAVID OLIPHANT, PETITIONER

Relevant Docket Entries r

In The Distriet Court:

Petition for Writ of Habeas Corpus 8

Exhibit I of Petition for Writ of Habeas Corpus: Order of

Commitment, dated August 19, 19732 11

Return to Writ Alleging Custody Under Process and Agree-

ment by Edward Schlie, Chief of Police of the City of Bremer-

...es esse se ese ns sees es dees 12

Annexed Copy of Agreement to Return of Writ dated June 7,

1973, between City of Bermerton, State of Washington and

U.S. Bureau of Indian Affairs for Custody of “Indian Prison-

—.. K 4add ene he 0460000000000 13

Annexed Copy of Order of Commitment to Return of Writ

een kuaeaicanbectaere te 11

Annexed Copy of Order Releasing Defendant on Personal

Recognizance to Return of Writ, dated August 24, 1973 ...... 15

Memorandum of Authorities of Amicus Curiae by Suquamish

D A —— . nn 16

Supplement to Petition for Writ of Habeas Corpus Naming as

Additional Respondents the Suquamish Indian Tribe, et all. 27

Exhibit II to Supplement to Petition for Writ of Habeas Cor-

pus: Agreement of Defendant to Appear for Trial, dated Au-

D ——L—̃—ͤ— K eee eee 38

Exhibit III to Supplement to Petition for Writ of Habeas Cor-

pus: Order Releasing Defendant on Personal Recognizance,

e ũͤ ͤ rr iden dcduccemcéacedeaeses 15

Exhibit IV to Supplement to Petition for Writ of Habeas Cor-

pus with Exhibit I thereof; Copy of Petition for Writ of Habeas

Corpus and Exhibit I, Order of Commitment................. 8, 11

Order to Show Cause and Setting Hearing ................... 39

Exhibit 9 to United States Memorandum of Amicus Curiae:.

Complaint, Violation Section 6, Chapter 3 of Suquamish Indian

. Gr GIO os oboe cocks codvcdccdsci dacdooce 41

Exhibit 9 to United States Memorandum of Amicus Curiae:

Complaint, Violation Section 62, Chapter 3 of Suquamish In-

dian Tribal Law and Order Code 42

Verification of Richard Belmont, Jr., verifying for Additional

Respondents matters set forth in Memorandum of Authorities

of Amicus Curiae by Suquamish Indian Tribe, et al and Addi-

Page

tional Memorandum of Authorities of Additional Respondents,

er.

Exhibit D to Petitioner's Reply Memorandum; Affidavit of

r. ...es ee eee eee 44

Exhibit E to Petitioner's Reply Memorandum; Affidavit of

ae. . oo es ese i dees 47

Memorandum Opinion of U.S. District Judge Morill E. Sharp. 48

U.S. District Court Judgment 53

Dothan 6S AOUOE ccc oe sse eee eee 54

In The Ninth Circuit Court of Appeals:

. oe eee se sees esse eee e el e 55

In The Supreme Court of the United States

Order Granting Petition for Writ of Certiorari and Leave to

Proceed In Forma Paupe riss. 129

SUBJECT INDEX

DANIEL B. BELGARDE, PETITIONER

Relevant Docket Entries 5

In The District Court:

Petition for Writ of Habeas Corpui ss 74

Exhibit 2 to Petition for Writ of Habeas Corpus; Affidavit of

PGA FF. GIGI os ccccascddscesctucccacéusuvaccsqeapesoee 44

Exhibit 3 of Petition for Writ of Habeas Corpus; Affidavit of

aer. 47

Exhibit 4 of Petition for Writ of Habeas Corpus; Temporary

Order of Commitment dated October 12, 1974; Violation See-

tion 44, Chapter III of the Suquamish Tribal Law and Order

G... ese eise esse s 87

Exhibit 5 of Petition for Writ of Habeas Corpus; Temporary

Order of Commitment dated October 12, 1974; Violation Sec-

tion 59, Chapter III of the Suquamish Tribal Law and Order

.. dne see e eee Cessnee 89

Exhibit 6 of Petition for Writ of Habeas Corpus; Agreement

between City of Port Angeles and United States Bureau of

Indian Affairs dated April 15, 197000... 91

Order of U.S. District Court Referring Case to U.S. Magis-

» ee See eee 93

Return of Suquamish Respondents on Petition for Writ of

Doe eee eee 94

ili

Exhibit A to Return: Bureau of Indian Affairs Incident Com-

r . cer

Exhibit C to Return: Memorandum Opinion, United States

F ˙ . ͤK eee

Report and Recommendation of United States Magistrate

Order Denying Writ of Habeas Corpuuauns

Judgment Denying Writ of Habeas Corpus..................

EE I kGT—— ͤ ͤo-

In The Ninth Cireuit Court of Appeals:

Stipulation for Order Holding Appeal in Abeyance dated

P . nwsiacceuetsice

Order Holding Appeal in Abeyance Pending Court's Decision

in Oliphant vs. Schlie, Cause No. 7421522.

In The Supreme Court of the United States

Order Granting Petition for Writ of Certiorari and Leave to

. Coe ces asides ccsebdedenscccse

Page

106

128

RELEVANT DOCKET ENTRIES

MARK DAVID OLIPHANT, PETITIONER

Date

Proceedings

1. Aug. 23

—

1973

Aug. 23

. Aug. 23

. Sept. 7

Petition for Writ of Habeas Corpus filed

in U.S. District Court for Western Dis-

trict of Washington at Seattle

(Oliphant, Petitioner v. Edward Schlie,

Chief of Police of City of Bremerton,

Respondent) Cause No. 511-73C2

Exhibit I of Petition for Writ of Habeas

Corpus: Order of Commitment, dated

August 19, 1973 by the Suquamish Pro-

visional Court on the Port Madison In-

dian Reservation (The Suquamish In-

dian Tribe, Plaintiff vs. Mark David

Oliphant, Defendant)

Order to Show Cause And Setting Hear-

ing.

Return to Writ Alleging Custody Under

Process and Agreement by Edward

Schlie, Chief of Police of the City of

Bremerton

Annexed Copy of Agreement to Above

Return dated June 7, 1973, between

City of Bremerton, State of Washington

and U.S. Bureau of Indian Affairs for

custody of “Indian prisoners”

Annexed Copy of Order of Commitment

to above Return dated August 19, 1973

by the Suquamish Provisional Court on

the Port Madision Indian Reservation

(Suquamish Indian Tribe, Plaintiff vs.

Mark David Oliphant, Defendant),

Same as 2. hereof

Annexe Copy of Order Releasing De-

fendant On Personal Recognizance to

above Return, dated August 24, 1973 by

10.

11.

. Sept.

Sept.

Sept.!

. Oct. 26

the Suquamish Provisional Court o the

Port Madison Indian Reservation

(Suquamish Indian Tribe, Plaintiff vs.

Mark David Oliphant, Defendant)

Memorandum of Authorities of Amicus

Curiae by Suquamish Indian Tribe, et al

Supplement to Petition for Writ of

Habeas Corpus naming as Additional

Respondents the Suquamish Indian

Tribe, et al

Exhibit II to Supplement to Petition for

Writ of Habeas Corpus: Agreement of

Defendant to Appear for Trial, dated

August 24, 1973 by the Suquamish Pro-

visional Court on the Port Madison In-

dian Reservation (Suquamish Indian

Tribe, Plaintiff vs. Mark David

Oliphant, Defendant)

Exhibit III to Supplement to Petition

for Writ of Habeas Corpus: Order Re-

leasing Defendant on Personal Recogni-

zance, dated August 24, 1973, by the

Suquamish Provisional Court on the

Port Madison Indian Reservation

(Suquamish Indian Tribe, Plaintiff vs.

Mark David Oliphant, Defendant),

Same as 7. hereof

Exhibit IV to Supplement to Petition

for Writ of Habeas Corpus with Exhibit

I thereof; Copy of Petition for Writ of

Habeas Corpus and Exhibit I, Order of

Commitment, same as 1. and 2. hereof

Order to Show Cause and Setting Hear-

ing

United States Memorandum of Amicus

Curiae

Exhibit 9 to United States Memoran-

dum of Amicus Curiae: The Suquamish

Provisional Court on the Port Madison

Indian Reservation, Complaint,

_ ——

3 AM es

2 ee ge —

K —

16. Oet. 26

17.

18.

19.

1974

Jan. 14

Jan. 25

April 5

. April 30

1976

. Aug. 24

Nov. 22

(Suquamish Indian Tribe, Plaintiff vs.

Mark David Oliphant, Defendant), for

violation of offense of Section 6, Chap-

ter 3 of Suquamish Indian Tribal Law

and Order Code

Exhibit 9 to Untied States Memoran-

dum of Amicus Curiae: The Suquamish

Provisional Court on the Port Madison

Indian Reservation, Complaint,

(Suquamish Indian Tribe, Plaintiff vs.

Mark David Oliphant, Defendant), for

violation of offense of Section 62, Chap-

ter 3 of Suquamish Indian Tribal Law

and Order Code

Additional Memorandum of Authorities

of Additional Respondents, with

Exhibits

Verification of Richard Belmont, Jr.,

verifying for additional Respondents

matters set forth in 8. and 17. hereof

Affidavit of John B. Benedetto, verify-

ing for additional Respondents docu-

ments and instruments comprising

Exhibits 1 and 2 of 17. hereof

Exhibit D to Petitioner’s Reply Memo-

randum; Affidavit of Martha F. George

Exhibit E to Petitioner’s Reply Memo-

randum; Affidavit of Robert J. Smiley

Memorandum Opinion of U.S. District

Judge Morill E. Sharp

U.S. District Court Judgment

Notice of Appeal

Opinion, U.S. Court of Appeals for the

Ninth Circuit, Cause No. 74-2154

In The Supreme Court of the United

States, Petition for A Writ of Certiorari

1977

27. June 13

to the United States Court of Appeals

for the Ninth Circuit (Mark David

Oliphant and Daniel B. Belgarde,

Petitioners v. The Suquamish Indian

Tribe, et al, Respondents) No. 76-5729

United States Supreme Court, Order

Granting Writ of Certiorari and Leave

to Proceed in Forma Pauperis (Mark

David Oliphant and Daniel B. Bel-

garde, Petitioners v. The Suquamish

Indian Tribe, et al, Respondents) No.

76-5729

RELEVANT DOCKET ENTRIES

DANIEL B. BELGARDE, PETITIONER

1974

28. Nov. 6

30.

31.

32.

33.

Nov.

. Nov.

Petition for Writ cf Habeas Corpus,

United States District Court, Western

District of Washington at Seattle

(Daniel B. Belgarde, Petitioner vs.

Suquamish Indian Tribe, et al, Re-

spondents,) Cause No. C74-683S

Exhibit 1 to Petition for Writ of Habeas

Corpus; Map of Port Madison Indian

Reservation.

Exhibit 2 to Petition for Writ of Habeas

Corpus; Affidavit of Martha F. George,

Same as 20. hereof

Exhibit 3 of Petition for Writ of Habeas

Corpus; Affidavit of Robert J. Smiley,

Same as 21. hereof

Exhibit 4 of Petition for Writ of Habeas

Corpus; Suquamish Tribal Court of the

Port Madison Indian Reservation; Tem-

porary Order of Commitment dated Oc-

tober 12, 1974 (Suquamish Indian

Tribe, Plaintiff vs. Daniel B. Belgarde,

Defendant); Violation of Section 44,

Chapter III of the Suquamish Tribal

Law and Order Code

Exhibit 5 of Petition for Writ of Habeas

Corpus; Suquamish Tribal Court of the

Port Madison Indian Reservation; Tem-

porary Order of Commitment dated Oc-

tober 12, 1974 (Suquamish Indian

Tribe, Plaintiff vs. Daniel B. Belgarde,

Defendant); Violation of Section 59,

Chapter III of the Suquamish Tribal

Law and Order Code

Exhibit 6 of Petition for Writ of Habeas

Corpus; Agreement between City of

Port Angeles and United States Bureau

of Indian Affairs dated April 15, 1974

36.

Nov.

Nov. 12

1975

38. Jan.

43.

44.

45.

46.

47.

Jan.

Feb.

Aug.

Dec. 13

Exhibit 7 of Petition for Writ of Habeas

Corpus: Proclamation by Governor

Daniel J. Evans, Governor of Washing-

ton dated August 26, 1971

Order of U.S. District Court Referring

Case to U.S. Magistrate

Order to Show Cause Pursuant to Order

to Show Cause

Return of Suquamish Respondents on

Petition for Writ of Habeas Corpus

Exhibit A to Return: Bureau of Indian

Affairs Incident Complaint Reports.

Exhibit B-1 and B-2 to Return: Af-

fidavit of Charles Deam

Exhibit B-3 to Return: Indian Children

School Census

Exhibit C to Return: Memorandum

Opinion, United States District Court

(Mark David Oliphant, Petitioner vs.

Suquamish Indian Tribe, et al, Re-

spondents), Same as 22. hereof

Exhibit D to Return: Notice of Accept-

ance of Retrocession of Jurisdiction

dated April 5, 1972 by United States

Secretary of the Interior; Harrison

Loesch, Assistant Secretary of the

Interior, Federal Register, Vol. 37, No.

72, April 13, 1972

Exhibit E-1 to Return: Letter from Re-

gional Solicitor to Barry D. Ernstoff

dated January 27, 1975

Exhibit E-2, E-3, E-4 and E-5 to Re-

turn: Title Status Report, United States

Bureau of Indian Affairs

Order Setting Hearing

Report and Recommendation of United

States Magistrate

48. Aug. 18

49. Aug. 22

50. Sept. 4

51.

1976

52. Jan. 5

53. Nov. 22

1977

54. June 13

Order Denying Writ of Habeas Corpus

Judgment denying Writ of Habeas Cor-

pus

Notice of Appeal

Stipulation for Order Holding Appeal in

Abeyance filed in United States Court

of Appeals, Ninth Circuit, dated

November 14, 1975

Order of United States Court of Ap-

peals, Ninth Circuit holding appeal in

abeyance pending Court’s decision in

Oliphant vs. Schlie, Court of Appeals

Cause No. 74-2154

In the Supreme Court of the United

States, Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit (Mark David

Oliphant and Daniel B. Belgarde,

Petitioners v. The Suquamish Indian

Tribe, et al, Respondents) No. 76-5729

United States Supreme Court, Order

Granting Writ of Certiorari and Leave

to Proceed in Forma Pauperis (Mark

David Jliphant and Daniel B. Bel-

garde Petitioners v. The Suquamish

Indian Tribe et al, Respondents) No.

76-5729, Same as 27. hereof

DISTRICT COURT—PETITION FOR WRIT OF

HABEAS CORPUS

File Aug. 23, 1973

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

DIVISION NO. 1

MARK DAVID OLIPHANT,

Petitioner, NO. 511-73C2

EDWARD SCHLIE, CHIEF OF PETITION

POLICE OF THE CITY OF FOR WRIT OF

BREMERTON HABEUS CORPUS

Respondent.

TO: THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF WASHINGTON:

The petition of JOHN F. RAYMOND respectfully shows:

That MARK DAVID OLIPHANT is now imprisoned and re-

strained of his liberty by EDWARD SCHLI®, CHIEF OF

POLICE OF THE CITY OF BREMERTON in the CITY OF

BREMERTON JAIL, BREMERTON, KITSAP COUNTY,

WASHINGTON.

II.

That David Mark Oliphant is a non-Indian residing in

Kitsap County, Washington.

III.

That the Suquamish Indian Tribe is an Indian Tribe in

accordance with the laws of the United States and that its

tribal officers purport to have sovereign police power over

the persons of non-Indians entering boundaries which they

claim are within the PoRT MADISON INDIAN

RESERVATION.

IV.

That on or about Sunday on the 19th day of August,

1973, at approximately 4:20 o’clock A.M., Mark David

Oliphant was seized without his consent and taken under

custody by two individuals who were purporting to act as

deputy police of the Suquamish Indian Tribe for land

owned by the Suquamish Indian Tribe and subject to the

trust status of the United States, in Suquamish, Kitsap

County, Washington. That he was then forced to walk

from that location along a public highway of the State of

Washington to the tribal office of the Suquamish Indian

Tribe in Suquamish, Kitsap County, Washington, where

he was imprisoned against his will by officers purporting

to act for, and with the authority of the Suquamish Indian

Tribe. He then remained imprisoned in a locked room

without food, heat, bed, or toilet facilities, for a period of

approximately six (6) hours or more, when he was then

forced to appear before two persons claiming to act as

judges with judicial power over his person to hear an ar-

raignment on the false arrest previously stated.

On August 19, 1973 he was charged with “assault and

battery” before the “Suquamish Tribal Court” without due

process of law, and contrary to the laws and constitution of

the United States; and an “Order of Commitment” was

signed by Grace Duggan, “Judge, Suquamish Tribal

Court” and Cecelia M. Hawk, “Judge, Suquamish Tribal

Court”. A copy of the “Order of Commitment” is attached

and made a part hereof as Exhibit I. At the time of his

presentment before said Court and during the hearing

thereof, no presentation was made by either of the “offi-

cers” or other “witnesses” of the incident for which his

“arrest” and incarceration was made. The petitioner

knows of no laws applicable to the person of the prisoner,

Mark David Oliphant, by the Suquamish Indian Tribe or

the Suquamish Tribal Court and of no Court of justice

therefrom to which he can appeal.

That following the execution by Judge Grace Duggan

and Judge Cecelia Hawk, he was handcuffed and taken

into custody in an automobile supplied and/or furnished by

the United States Government, Bureau of Indian Affairs,

to the Suquamish Indian Tribe, by a tribal officer. He was

then transported and committed to the City Jail of Bre-

merton, Washington, where he now remains unlawfully in-

carcerated.

VI.

That said restraint, arrest and imprisonment of Mark

David Oliphant were false and illegal by said persons and

without authority over the person of Mark David Oliphant,

a non-Indian, and contrary to all due process of law.

VII.

That no previous application has been made for the writ

prayed for below. The petitioner has made this petition as

an attorney for Mark David Oliphant, and upon his infor-

mation and belief from an interview with the prisoner and

an investigation of matters herein contained.

WHEREFORE, your petitioner prays that a writ of

habeas corpus issue, directed to the said respondent, Ed-

ward Schlie, commanding him to forthwith release the

body of Mark David Oliphant from custody to the personal

recognizance of his attorney, John F. Raymond, to await

hearing on this matter, and that the respondent, Edward

Schlie, be commanded to appear and show cause for such

imprisonment and detention before the Court granting

said writ and why it should not remain absolute.

DATED: The 22nd day of August, 1973.

PETITIONER:

by: —

JOHN F. RAYMOND

Attorney for Petitioner

(JURAT OMITTED IN PRINTING)

DISTRICT COURT—EXHIBIT I OF PETITION FOR

WRIT OF HABEAS CORPUS

ORDER OF COMMITMENT

Filed Aug. 23, 1973

IN THE SUQUAMISH PROVISIONAL COURT ON

THE PORT MADISON INDIAN RESERVATION

THE SUQUAMISH INDIAN TRIBE,

Plaintiff,

ve. ORDER OF

COMMI

MARK DAVID OLIPHANT, need

Defendant.

On the 19th day of August, 1973, the defendant above

named, by reason of disposition of this matter has been

this date sentenced and/or fined as follows:

Confined to Bremerton City Jail until date of trial, Au-

gust 27, 1973 at 7:30PM or until bond is ted. B

will be $100.00 in each charge: ses =

Bond: $100.00 bond for assault and battery;

$100.00 for resisting iawful arrest.

The defendant is hereby remanded to the custody of th

Suquamish Tribal Police in accordance with the —

ment order above set forth.

Dated: i9th day of August, 1973.

/s/GRACE DUGGAN, JUDGE

SUQUAMISH TRIBAL COURT

/s/;CECELIA M. HAWK, JUDGE

SUQUAMISH TRIBAL COURT

DISTRICT COURT—RETURN TO WRIT ALLEGING

CUSTODY UNDER PROCESS AND AGREEMENT BY

EDWARD SCHLIE, CHIEF OF POLICE OF THE

CITY OF BREMERTON

Filed Sept. 7, 1973

(Caption Omitted in Printing)

To the Honorable Morill E. Sharp, Judge for United

States District Court, Western District of Washington at

Seattle:

I hereby certify and return that before the coming to me

of the annexed order to show cause the said Mark David

Oliphant was committed to my custody, and was detained

by me until August 24, 1973, by virtue of an order of com-

mitment out of the Suquamish Provisional Court on the

Port Madison Indian Reservation of Kitsap County, State

of Washington, and by the indorsements made upon said

order of commitment and by virtue of an agreement with

the United States Bureau of Indian Affairs. A copy of said

order of commitment and agreement are annexed hereto

and made a part of this return. Said Mark David Oliphant

was released on his personal recognizance of August 24,

1973, pursuant to an order from the Suquamish Provi-

sional Court and the indorsement thereon of which a copy

of said order is annexed hereto and made a part of this

return.

DATED this 7th day of Sept., 1973.

/s/ | : eS ee ee

Edward Schlie, Chief of Police

of the City of Bremerton

DISTRICT COURT—ANNEXED COPY OF

AGREEMENT TO RETURN OF WRIT DATED JUNE

7, 1973, BETWEEN CITY OF BREMERTON, STATE

OF WASHINGTON AND U.S. BUREAU OF INDIAN

AFFAIRS FOR CUSTODY OF “INDIAN PRISONERS”

Filed Sept. 7, 1973

(Caption Omitted in Printing)

United States Department of the Interior

Bureau of Indian Affairs

Portland Area Office

Post Office Box 3785

Portland, Oregon 97208

AGREEMENT

THIS AGREEMENT MADE AND ENTERED IN

TO THIS 7th

day of June, 1973, by and between the City of Bremerton

State of Washington, through its duly authorized Commis-

sioners, hereinafter referred to as the Party of the First

8 ma — 4— — Indian Affairs, through its Con-

eting Officer, hereinafter referred to as the P

Second Part, Now THEREFORE ee een

WITNESSETH, That the Party of the First Part

, shall e

for Indian prisoners placed in the custody of its officers

and for and in consideration of this service (which shall

include room and board) the Party of the Second Part will

* — * = Party i, the First Part at the rate of

: r day for the period beginni i

ending June 30, 1974. K K

It Is UNDERSTOOD AND AGREED That Indi i

ndian prisoners

who have not served their full time will not 44 —

except upon written orders of the Suquamish and Port

Gamble Tribal Courts and its officers.

Ir Is UNDERSTOOD AND AGREED That pri

5 1 risoners com-

mitted to the City of Bremerton Jail will 1. — to the

same rules and regulations required of other pri

* * * * ris

observe in said jail. *

It Is UNDERSTOOD AND AGREED That payment will be

made for this service at the end of each month upon pre-

sentation by the Party of the First Part of a proper invoice

to the Bureau of Indian Affairs, Western Washington

Agency, 3006 Colby Avenue, Federal Building, Everett,

WA 98201.

It Is FURTHER UNDERSTOOD AND AGREED That this ar-

rangement shall be for the above period with the option to

renew subject to availability of funds. This agreement may

be terminated by either party upon thirty (30) days writ-

ten notice to the other. This Agreement may be modified

in writing upon mutual consent of both to the contract.

THIS AGREEMENT Is subject to the attached General Pro-

visions.

IN WITNESS HEREOF Both parties have hereunder set

their hands as shown below.

THE UNITED STATES

OF AMERICA Bremerton Police Dept.

BUREAU OF (Organization)

INDIAN AFFAIRS

— .

0 Signature) 1 (Signature)

E.LaCoursa R. Wes Henry

Name (type or print) Name (type or print)

Area Property &

Supply Officer Acting Chief of Police

th © (Title)

July 7, 1973 July 17, 1973

Sate) (Date)

DISTRIC fT COURT—ANNEXED COPY

ny 44 — ON PERSO NAL a

RETURN OF WRIT

AUGUST 24, 1973 spares

Filed Sept. 7, 1973

IN THE SUQUAMISH PROVISIONAL CO

THE PORT MADISON INDIAN RESERVATION.

SUQUAMISH TRIBE,

Plain NO. 1973-4

v. ORDER RELEASING

MARK OLIPHANT, DEFENDANT ON

Defendant. PERSONAL

RECOGNIZANCE

It appearing to the court that the Def,

appear for his trial on September 25, 1978 at 6:00 Pr er

that defendant has family ties in the Community of

Suquamish on the Port Madison Indian Reservation; it is

hereby ordered that defendant is released on his own per-

sonal recognizance until the time and date of trial set out

above. Place of court will be the Suquamish Tribal Busi-

1 - Zuquamish, Washington.

efendan is tri i

„„ A 1 appear at his trial, a warrant for his

Dated this 24th day of August, 1973.

Cecelia Hawk, Judge

Suquamish Tribal Court

DISTRICT COURT—MEMORANDUM OF

AUTHORITIES OF AMICUS CURIAE BY

SUQUAMISH INDIAN TRIBE

Filed Sept. 10, 1973

(Caption Omitted in Printing)

This is a Habeas Corpus action brought by the defend-

ant in a criminal case before the Suquamish Indian Tribal

Court against the Chief of Police of the City of Bremerton

who was holding the petitioner in custody by order of the

Suquamish Tribal Court and pursuant to an agreement en-

tered into with the City of Bremerton on June 7, 197°.

Petitioner in this case was placed under arrest for assault-

ing a tribal police officer and resisting arrest when the tri-

bal deputies attempted to break up a fight on the

Suquamish Tribal Camp Grounds on the Port Madison In-

dian Reservation.

1. An Indian Tribe Has the Inherent Sovereign Power to

Administer Justice on its Reservation.

Prerequisite to a proper determination of this case is a

preliminary consideration of the basic nature of the

Suquamish Indian Tribe as a political entity. The original

sovereign status of Indian tribes is explicated at length in

Federal Indian Law, 1958 (1966 Printing by Assoc. on

American Indian Affairs, Inc., N.Y.):

“Indian self-government includes generally the power of

an Indian tribe, to the extent that it has not been limited

by Federal law, to adopt and operate under a form of

government of the Indians’ choosing, to define condi-

tions of tribal membership, to regulate domestic rela-

tions of members, to prescribe rules of inheritance, to

levy taxes, to regulate property within the jurisdiction

of the tribe, to control the conduct of members by

municipal legislation, and to administer justice. Origi-

nally, those powers which were exercised by an Indian

tribe were not, in general, delegated powers granted by

express acts of Congress, but rather inherent powers of

a limited dependent sovereignty which had not been ex-

tinguished by Federal action. Each Indian tribe began

its relationship with the Federal government as a

sovereign or quasi-sovereign government, recognized as

such by treaty and in legislation. These powers of

sovereignty have been limited from time to time by spe-

cial treaty provisions and laws designed to take from the

Indian tribes control of matters which, in the judgment

of Congress, should be exercised elsewhere.” Federal

Indian Law at 395.

In a discussion of case law regarding the recognition of

the sovereign rights of an Indian tribe, it is stated further:

“The whole course of judicial decision on the nature of

Indian tribal powers is marked by adherence to three

fundamental principles: (1) An Indian tribe possessed, in

the first instance, all the powers of any sovereign State.

(2) Conquest rendered the tribe subject to the legisla-

tive power of the United States and, in substance, ter-

minated the external powers of sovereignty of the tribe,

e.g., its power to enter into treaties with foreign na-

tions, but did not by itself terminate the internal

sovereignty of the tribe, i.e., its powers of local self-

government. (3) These internal powers were, of course,

subject to qualification by treaties and by express legis-

lation of Congress, but, save as thus expressly qualified,

many powers of internal sovereignty have remained in

the Indian tribes and in their duly constituted organs of

government.” Federal Indian Law at 398.

These concepts of sovereignty were recognized in a case

which was the foundation for the development of basic prin-

ciples of Indian law in the United States, Worcester v.

Georgia, 31 U.S. 515 (1833). Chief Justice Marshall, writing

for the Supreme Court stated:

“The Indian nations had always been considered as dis-

tinct, independent political communities, retaining their

original natural rights, as the undisputed possessors of

the soil, from time immemorial, with the single excep-

tion of that imposed by irresistable power. . . .” 31 U.S.

at 559. See also, Cherokee Nation v. Georgia, 30 U.S. 1,

16 (1831).

For a number of years many of these inherent sovereign

powers of Indian tribes were not exercised as the United

States government began to take a firm p of the admin-

istration of Indian affairs. In 1934 the Indian Reorganiza-

tion Act was (48 Stat. 984) which attempted to re-

vitalize the self-government of Indian tribes. In an opinion

as to what powers had been vested in an Indian tribe by

existing law, the Solicitor of the Department of Interior is-

sued an extensive opinion on Indian tribal powers. Powers

of Indian Tribes, 55 I. D. 14 (October 25, 1934). In discus-

sing the power to administer justice on the Reservation,

the Solicitor held:

“So long as the complete and incependent sovereignty of

an Indian tribe was recognized, i*s crimina! jurisdiction,

no less than its civil jurisdiction, was that of any

sovereign power. It might punish its subjects for of-

fenses against each other or against aliens and for public

offenses against the peace and dignity of the tribe. Simi-

larly, it might punish aliens within its jurisdiction ac-

cording to its own laws and customs. Such jurisdiction

continues to this day, save as it has been expressly lim-

ited by the acts of a superior government.

“It is clear that the original criminal jurisdiction of the

Indian tribes has never been transferred to the States.

Sporadic attempts of the States to exercise jurisdiction

over offenses between Indians, or between Indians and

whites, committed on an Indian reservation, have been

held invalid usurpation of authority. 55 JI. D. at 57.

Where there were no tribal court mechanisms for the

administration of justice on the reservation, the Bureau of

Indian Affairs established courts of Indian offenses with

fec rally appointed Indian judges. However, these courts

sit only where the tribe has not seen fit to administer its

own court system. This concept is supported by the 1934

Solicitor’s opinion:

“Whichever of these explanations be offered for the ex-

istence of the Courts of Indian Offenses, their estab-

lishment cannot be held to have destroyed or limited the

powers vested by existing law in the Indian tribes over

the province of law and order and the administration of

civil and criminal justice. 55 I. D. 64.

The Suquamish Indian Tribe of the Port Madison Reser-

vation has retained full control over the tribal administra-

tion of justice on the Reservation. An extensive and com-

prehensive Law and Order Code was adopted by the tribe

at a meeting of the full membership of the tribe. A copy of

the Code is attached to this Memorandum as Appendix A.

When petitioner in this case was arrested by the tribal

police officers, he was brought before the Suquamish Tribal

Court which issued on Order of Commitment confining

petitioner to the Bremerton City Jail until his trial and set-

ting a bail of $100.00 on each of the two charges. Petitioner

refused to put up bail or to pledge tangible property in lieu

of bail. On August 24, 1973, petitioner was released on his

own personal recognizance upon order of the Suquamish

Tribal Court and trial was set for September 25, 1973. A

— —

copy of the pleadings in the Tribal Court file is attached

hereto as Appendix B.

2. The Suquamish Tribal Court Has Jurisdiction to Ad-

minister Justice Regarding all Matters Taking Place on

Reservation Lands.

It is a principle of Indian law that for Congress to take

away from an Indian tribe any of its sovereign inherent

powers, it must do so expressly. Congress, thus far, has not

deprived Indian Tribal Courts of jurisdiction except as to

certain “majer crimes” for which jurisdiction is given to

Federal Courts.

In Buster v. Wright, 135 Fed. 947 (8th Cir. 1905), Appeal

Dismissed, 203 U.S. 599, the right of the Creek Nation to

enforce a permit tax against non-Indiand was upheld. The

8th Circuit stated:

“It was one of the inherent and essential attributes of its

original sovereignty. It was a natural right of that

people, indispensable to its autonomy as a distinct tribe

or nation, and it must remain an attribute of its govern-

ment until by the agreement of the nation itself or by

the superior power of the republic it has taken from

it.. . The fact remains nevertheless that every original

attribute of the government of the Creek Nation still

exists intact which has not been destroyed or limited by

act of Congress or by the contracts of the Creek Tribe

itself. 135 Fed. at 950.

The 8th Circuit went on to find that the power to tax still

existed in the Oglala Sioux Tribe since it was an original

“precept of tribal sovereignty” and had not been “preter-

mitted by any federal statute or agency ruling thereunder.”

This concept was reaffirmed in Williams v. Lee, 358 U.S.

217 (1959). In that case the Supreme Court held that juris-

diction over a civil suit between a non-Indian and an Indian

was rightfully in tribal court and not in state court, citing

Worcester v. Georgia, supra. The court acknowledged that

state courts have been allowed to try non-Indians who

committed crimes against each other on a reservation,

“But if the crime was by or against an Indian, tribal

jurisdiction or that expressly conferred on other courts

by Congress has remainded exclusive.” 358 U.S. at 220.

The court relied on the fact that the Navajo Tribe had in

recent years greatly improved its legal system through in-

— expenditures and better trained personnel. It went

on to find:

“There can be no doubt that to allow the exercise of

state jurisdiction here would undermine the authority of

the tribal courts over Reservation affairs and hence

would infringe on the right of the Indians to govern

themselves. It is immaterial that respondent is not an

Indian. He was on the Reservation and the transaction

with an Indian took place there. (Citations omitted). The

cases in this Court have consistently guarded the au-

thority of Indian governments over their Réservations.

Congress recognized this authority in the Navajos in the

Treaty of 1968, and has done so ever since. If this power

is to be taken away from, it is for Congress to do it.” 358

U.S. at 223.

The principles of Williams v. Lee, supra, have been up-

held recently in McClanahan v. State Tax Commission of

Arizona, 36 L.Ed. 2d 129, 135 (March 27, 1973).

In Quechan Tribe v. Rowe, 350 F.Supp. 106 (S.D. Cal.

1972), the District Court held that the actions of the tribal

law enforcement officer in enforcing tribal hunting laws

against three non-Indian trespassers on the Reservation

were lawful and not subject to interference by the state.

That case is now on appeal to the Ninth Circuit Court of

Appeals. The decision in that case recognizes Indians’ right

to enforce tribal ordinances against non-Indians.

A number of legal theories and policy arguments may be

advanced in support of the jurisdiction of tribal courts over

offenses committed by all persons on a Reservation. Among

these theories and arguments are:

(1) A Tribe’s power to exclude nonmembers from the

Reservation implies a power to subject nonmembers who

entered the Reservation to the jurisdiction of its courts.

(2) “Implied consent” and other related bases of personal

jurisdiction over absent defendants used to uphold state

“long-arm statutes” serve as an adequate doctrinal base.

(3) Title II of the Indian Civil Rights Act of 1968 protects

non-Indians’ constitutional rights from infringement by tri-

bal courts.

(4) Upholding this type of jurisdiction would strengthen

— sovereignty, in keeping with expressed congressional

policy.

(5) If the tribal right to administer justice on the Reser-

vation is denied, this would create a vacuum in law en-

forcement on the Reservation.

A. Power to Exclude.

The power of an Indian tribe to exclude nonmembers of

the tribe from entering upon the Reservation was first

clearly formulated in an opinion of the Attorney General

rendered in 1821 with respect to the lands of the Seneca

Indians:

“So long as a tribe exists and remains in possession of its

lands, its title and possession are sovereign and exclu-

sive; and there exists no authority to enter upon their

lands, for any purpose whatever, without their con-

sent.” 1 Op.Atty Gen. 465, 466.

In Dodge v. Nakai, 298 F.Supp. 17 (D. Ariz. 1968) and

298 F.Supp. 26 (D. Ariz. 1969), the Court held that the

power to exclude nonmembers from the Navajo Reserva-

tion was reserved to the Navajo Tribe because the Navajo

Reservation was set aside for “use and occupation” of the

Navajo Tribe and because of language in the Navajo Treaty

to the effect that no persons except those authorized should

be permitted to pass over, settle upon, or reside in the area

of the Reservation. The Court went on to find that the In-

dian Civil Rights Act demanded that a nonmember be given

due process before he is excluded from the Reservation.

The Treaty with the Suquamish, January 22, 1855 (12

Stat. 927) granted the Port Madison Reservation to the

Suquamish Indians also for their “use and occupation.” In

addition, in Article II of the Treaty, it was stated:

“All which tracts shall be set apart, and so far as neces-

sary surveyed and marked out for their exclusive use;

nor shall any white man e permitted to reside upon the

same without permission of said Tribes or bands, and of

the Superintendent or agent.

The right to exclude necessarily includes the right to de-

termine conditions upon which nonmembers shall enter the

Reservation. 55 I.D. 14, 50. Conditions of entry must be

consistent with federal law, but since no federal law pro-

hibits jurisdiction of tribal courts over non-Indians accused

of minor offenses, it follows that a condition for entry for

nonmembers is submission to tribal court jurisdiction.

B. Doctrine of “Implied Consent.”

Notices have been placed in prominent positions at the

entrances to the Port Madison Indian Reservation to the

effect that entry onto the Reservation lands will be deemed

implied consent to submission to the jurisdiction of the

Suquamish Tribal Court.

Implied consent is one of many doctrines used to uphold

the so-called “long-arm” statutes in effect in almost every

state. This anology becomes clear if a criminal charge is

thought of as an alleged tort against the Tribe.

An examination of the factors to be considered when de-

termining the propriety of “long-arm” jurisdiction shows

the fairness of the exercise of jurisdiction by the Suquamish

Indian Tribe over nonmembers committing crimes on the

Reservation. The inconvenience to the defendant in having

to defend in a foreign jurisdiction is to be weighed against

the interest of the plaintiff, i.e. the Tribe, in suing locally.

In any case, the defendant will not be resident a great dis-

tance from the Reservation. In the instant case the defend-

ant was actually a resident of the Reservation. In the case

of the Suquamish, experience shows that the Tribal Court

is the only forum where the Tribe is likely to get relief. The

interest of the plaintiff Tribe is compelling.

In view of the fact that the defendant in this case res ides

on the Reservation and committed his offense against the

tribal law enforcement officer on traditional Suquamish en-

campment grounds under the standards traditionally estab-

lished for state “long-arm” jurisdiction, the Suquamish

Tribe is not asserting jurisdiction that offends “traditional

notions of fair play and substantial justice.” Millikan v.

Meyer, 311 U.S. 457, 463 (1940).

C. The Indian Civil Rights Act Will Protect the Con-

stitutional Rights of Non-Indian Defendants.

Until the passage of the 1968 Indian Civil Rights Act, the

judicial authority of an Indian Tribe was not subject to con-

stitutional civil rights limitations. Talton v. Mayes, 163

U.S. 376 (1896). The 1968 Act extended a modified version

of the first and fourth through eighth amendments to In-

dian Tribes and limited penalties to imprisonment for a

term of six months or a fine of $500.00. (P.L. 90—284, 82

Stat. 77, 25 U.S.C. §1302).

The legislative history of the Indian Civil Rights Act,

explicated in Dodge v. Nakai, supra, clearly shows that

Congress understood that tribal courts would exercise

jurisdiction over non-Indians as well as Indians:

“Defendants contend that it was the intent of Congress

in enacting Title II (25 U.S.C. 51302] to protect only the

rights of Indians in their relationships with tribal gov-

ernments, and that plaintiff Mitchell, a non-Indian, is

not entitled to invoke the protection provided by that

legislation. Defendants contend that the term ‘any per-

son’ where it appears in Title II, should be interpreted

as meaning ‘any American Indian.’ The legislative his-

tory of Title II does not provide this court with a justifi-

able reason for so restricting the plain language of the

statute...

In May, 1966, the Department of the Interior submitted

supplemental testimony and a revision of the substitute

bill that was intended to establish rights for all persons

who may be subject to the jurisdiction of tribal govern-

ments whether Indians or non-Indians. See Summary

Report on the Constitutional Rights of American In-

dians of the Senate Subcommittee on Constitutional

Rights of the Committee on the Judiciary, 89th Cong.,

2d Sess., at 9-10 (1966). At this point, along with imma-

terial changes the term ‘any person’ was substituted for

the term ‘American Indian’ throughout the bill that

eventually became Title II. That language remained in

the bill up to and including the time of its enactment into

law.” (Emphasis added)

Therefore, “any person” is guaranteed substantially the

same rights under tribal jurisdiction as he would be under

state and federal jurisdictions.

Thus, there is no argument that a Tribal Court having

jurisdiction over offenses committed by non-Indians would

result in the denial of constitutional protections to non-

Indians in Tribal Courts. Congress clearly intended that

these constitutional protections should be available for

non-Indians in Tribal Courts and the procedures of the

Suquamish Tribal Court are evidence of the intention by

the Court and the Tribe to allow full Civil Rights protec-

tions ordered by federal law.

D. Congressional and Executive Policy Regarding

Tribal Sovereignty.

The attitude of Congress toward tic concept of tribal

sovereignty has changed drastically over the years. The

General Allotment Act of 1887 (24 Stat. 388) was clearly an

attempt to dismantle tribal governments and Indian com-

munities and provide for the assimilation of Indians into the

dominant society. A major reversal of this governmental

policy and approach toward Indian affairs was effectuated

by the Indian Reorganization Act of 1934. The purpose of

that Act was to resurrect and revitalize concepts of Indian

sovereignty and procedures of self government. The 1968

Indian Civil Rights Act by recognizing power of self gov-

ernment of Indian Tribes as inciuding executive, legislative

and judicial functions also reaffirms congressional policy

—

to afford to Indian Tribes the right to regulate conduct

within their Reservations as sovereign government bodies.

There has also been a change in executive policy towards

the strengthening of tribal sovereignty and tribal institu-

tions. In a message to Congress dated July 8, 1970, H.R.

Doc. No. 90-363, 91st Congress, 2d Session (1970), Presi-

dent Nixon stated:

“This, then, must be the goal of any new national policy

toward the Indian people: To strengthen the Indian’s

sense of autonomy without threatening his sense of

community.”

The President then went on and recommended a number

of changes in executive policy which would have the result

of transferring to Indian tribes many of the functions there-

tofore performed by the federal government and of en-

couraging greater development by tribes of their Reserva-

tions.

In furtherance of these congressional and executive

policies regarding the strengthening of tribal government,

assertion of jurisdiction by tribal courts over offenses com-

mitted by anyone on a Reservation would protect the Res-

ervation from outside intruders and increase the status of

tribal government in the eyes of tribal members.

E. Law Enforcement Vacuum.

As a practical matter, jurisdiction of a tribal court over

offenses committed by all persons on the Reservation is

necessary for the carrying out of an effective law enforce-

ment program on tae Reservation. The instant case clearly

proves this point. When the Suquamish Indian Tribe

planned their annual Chief Seattle Days celebration, the

Tribe knew that thousands of people would be congregating

in a small area near the tribal traditional encampment

grounds for the celebration. A request was made of Kitsap

County to provide law enforcement assistance. One deputy

was available for approximately one 8-hour period during

the entire weekend. The tribe also requested law enforce-

ment assistance from the Bureau of Indian Affairs, Western

Washington Agency. They were told that they would have

to provide their own law enforcement out of tribal funds

and with tribal personnel.

Petitioner in this case was arrested at approximately 4:30

a.m. The only law enforcement officers available to deal

with the situation were tribal deputies. Without the exer-

cise of jurisdiction by the Tribe and its courts, there could

have been no law enforcement whatsoever on the Reserva-

tion during this major gathering which clearly created a po-

tentially dangerous situation with regard to law enforce-

ment. Public safety is an underpinning of a political entity.

If tribal members cannot protect themselves from offen-

ders, there will be powerful motivation for such tribal

members to leave the Reservation.

The attitude of the Bureau of Indian Affairs is that in

view of established congressional and executive policies to-

ward Indian self government, Tribes should exercise law

enforcement jurisdiction and deal with law enforcement

problems on their own. It would be deceptive of the United

States government to provide for tribal law enforcement

and deny to the Tribes federal law enforcement, only to

have the courts refuse to allow tribal courts to assert juris-

diction over offenses committed by any persons on Reser-

vations.

3. Conclusion.

In view of the judicial principle that governmental pow-

ers of Indian tribes are retained unless and until expressly

withdrawn by Congress, it is evident that Indian tribal

courts have jurisdiction over offenses committed by any

persons on a Reservation. In balancing the benefit to

Tribes in being able to enforce this jurisdiction with the

burdens to be borne by non-Indian defendants before tribal

courts, the need for the assertion of tribal jurisdiction be-

comes evident.

“The historical limitations on both in personam and in

rem jurisdiction, with their rigid tests, are giving way

to a more realistic and reasonable evaluation of the re-

spective rights of plaintiffs, defendants and the State in

terms of fairness. ... Such an evaluation requires a

practical appraisal of the situation of the various parties

rather than an emphasis upon the somewhat medieval

concepts of presence and power.” Simpson v. Lochman,

21 N.Y. 2d 305, 234 N.E. 2d 669 (1967).

The factual analysis of this case, the legal analysis of the

powers of Indian tribes, and a review of the policies of the

federal government toward Indian tribes all point to the

need for this Court to re’ .firm the inherent right of the

Suquamish Indian Tribe to maintain an orderly community

by regulating the conduct of those who choose to enter it.

DATED this 10th day of September, 1973.

Respectfully submitted,

ZIONTZ, PIRTLE, MORISSET & ERNSTOFF

BARRY D. ERNSTOFF, of Attorneys for Amicus

DISTRICT COURT—SUPPLEMENT 70 PETITION

FOR WRIT OF HABEAS CORPUS

Filed Sept. 11, 1973

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT

SEATTLE

MARK DAVID OLIPHANT,

Petitioner, NO. 511--73C2

22 SUPPLEMENT TO

EDWARD SCHLIE, CHIEF OF PETITION FOR

POLICE OF THE CITY OF WRIT OF

BREMERTON, HABEAS CORPUS

Respondent,

and

Additional Respondents:

THE SUQUAMISH INDIAN TRIBE—

RICHARD BELMONT, JR., CHAIRMAN

OF COUNCIL OF SUQUAMISH

INDIAN TRIBE; DONALD BREAD,

SUQUAMISH TRIBAL MANAGER; FRED

GUARDIPEE, SUQUAMISH TRIBAL

POLICE OFFICER; GRACE DUGAN,

SUQUAMISH TRIBAL JUDGE; and

CECILIA HAWK, SUQUAMISH TRIBAL

JUDGE; and GEORGE M. FELSHAW,

SUPERINTENDANT OF THE WESTERN

WASHINGTON TRIBAL AGENCY,

TO: THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF WASHINGTON:

There are added as additional respondents the above-

named “Additional Respondents”.

II.

That the Suquamish Indian Tribe is an Indian Tribe ree-

ognized by the laws of the United States as an Indian

Tribe, whose Indian members in the distant past occupied

as a tribal community certain Indian lands upon a reserva-

tion known as the “Port Madison Indian Reservation”.

That the original boundaries of Port Madison Indian Res-

ervation were established by a treaty between the United

States and the Dwamish, Suquamish, and other Allied and

Subordinate Tribes in Washington Territory on January

22, 1844 and ratified on April 11, 1859. That since that

time the lands within those boundaries were settled by

non-Indians; the members of the Suquamish Indian Tribe

were compensated for those lands and the tribal commu-

nity thereon terminated.

III.

That the Suquamish Indian Tribe now claims

sovereignty of governmental civil and criminal jurisdiction

over lands claimed to be within the boundaries of the Port

Madison Reservation. That thesSuquamish Indian Tribe

and/or its members ceased to occupy any of the lands as a

tribal community and ceased to maintain any customs,

government, culture, regulations and/or authority over

those lands and persons therein claimed to be within the

present boundaries of the Port Madison Indian Reserva-

tion prior to the year of 1965, at which time it received

recognization from the United States Government as an

Indian Tribe and a Constitution and By-Laws were

adopted.

IV.

That at the time in 1965 that the government of the

Suquamish Indian Tribe was recognized by the United

States Government, the land within the boundaries

claimed by the Suquamish Indian Tribe was not occupied

by the Suquamish Indian Tribe and/or its members as a

tribal community, and there were no tribal customs, laws,

rules and/or regulations adopted by its members for either

the exercise of criminal and/or civil jurisdiction over per-

sons within that area.

That the governmental powers of the Suquamish Indian

Tribe are vested in the Suquamish Tribal Council. That in

1965 the lands claimed to be within the Port Madison In-

dian Reservation consisted of approximately eight

thousand (8,000) acres, of which only approximately

forty-one (41) acres of Indian Tribal community land,

which was and ever since that time has been unoccupied

by the Suquamish Indian Tribe and/or its members. In the

year 1969, approximately thirty-six (36) acres of the unoc-

cupied tribal lands were leased by the Suquamish Indian

Tribe for a term of fifty (50) years to Chief Seattle Prop-

erties, Inc., a Washington corporation, leaving a balance

of approximately four (4) acres that is occupied by the

terms of a lease with the American Legion, a baseball park

and a graveyard. The remainder of the lands within the

claimed boundaries of the Port Madison Reservation con-

sist of roads and rights-of-way of public highways of the

State of Washington; allotted lands belonging to Indians

subject to the jurisdiction of the United States; and lands

owned by non-Indians not subject to the jurisdiction of the

United States. In the approximate eight thousand (8,000)

acres claimed to be within the boundaries of the Port

Madison Indian Reservation, there are approximately two

thousand six hundred thirty eight (2,638) acres owned as

allotted Indian lands subject to trust status and the juris-

diction of the United States, and approximately five

thousand three hundred twenty one (5,321) acres that are

owned by non-Indians and not subject to the trust status

and jurisdiction and control of the United States. Thus,

there is approximately 33-1/3% “Indian land” and approx-

imately 67% non-Indian land within the claimed bound-

aries of the Port Madison Indian Reservation.

VI.

The land within the boundaries claimed by the Re-

spondents to be the Port Madison Indian Reservation has

not been occupied by any Indian tribal community of the

Suquamish Indian Tribe for some unknown time in the

past. The area has been occupied largely by non-Indians

before and since 1930, and consists of a community of

non-Indians residing in the area within an unincorporated

area known as the Town of Suquamish, Kitsap County,

Washington. The Town of Suquamish is occupied by non-

Indians owning commercial and residential property zoned

under the laws of Kitsap County and over whom there is

criminal and civil jurisdiction of Kitsap County, State of

Washington. The area has been and now is occupied by

approximately 1500 to 2500 non-Indian citizens of the

United States and residents of the State of Washington.

The area has been and now is occupied by a minority of

Indians living on lands which are not under or subject to

the jurisdiction and control of the United States and on

allotted lands that are Indian lands subject to the jurisdic-

tion and control of the United States. At the present time

the Indian population occupying those lands within the

claimed boundaries of the Suquamish Indian Reservation

who are enrolled members of the Suquamish Indian Tribe

is approximately forty-three (43) in number, consisting of

approximately nineteen (19) adult members and approxi-

mately twenty-four (24) minors.

VII.

In January, 1973, the respondent, Richard Belmont, Jr.,

and other individuals were appointed members of the Tri-

bal Council of the Suquamish Indian Tribe, and said re-

spondent was appointed Chairman thereof. That on that

date and ever since that time, said individual has been act-

ing in that capacity under the authority of the Suquamish

Indian Tribe and recognized by the United States Gov-

ernment, Department of Interior, Bureau of Indian Af-

fairs.

VIII.

That the United States Government, Department of

Interior, Bureau of Indian Affairs, on or about December

24, 1957, as appears in 22 F. R. 10515, and now contained

in Code of Federal Regulations, Title 25- Indians, Sub-

chapter B-Law and Order, passed regulations for the

exercise of sovereign authority by Indian Tribal govern-

ments and establishing a Code of Indian Tribal Offenses.

That in accordance with said regulations, in Section 11.301

thereof, the Superintendent of each Indian reservation is

Commander of the Indian Police Force and generally re-

sponsible for the general efficiency and conduct of the

members thereof. That the respondent George Felshaw at

all times hereinafter mentioned is and was responsible as

Superintendent of the Port Madison Indian Reservation

for the conduct of the police officers hereinafter stated.

IX.

The Petitioner hereby incorporates the allegations

stated in the Petition for Writ of Habeas Corpus and in

addition thereto alleges as follows:

1. That while the Petitioner was incarcerated in the

City of Bremerton Jail under the custody and control of

the Respondent, Edward Schlie, Chief of Police of the City

of Bremerton, persons unknown to the Petitioner, as

police officers of the City of Bremerton, allowed Donald

Bread and Fred Guardipee into the presence of the

Petitioner and while he was being incarcerated, Donald

Bread and Fred Guardipee requested that he deliver title

and transfer possession of his automobile to them in ex-

change for his release from confinement from the City of

Bremerton Jail. This the Petitioner refused to do. Pre-

viously to that time and place, while the Petitioner was

confined in the City of Bremerton Jail, and unknown to

him and without authority from him, Donald Bread and

Fred Guardipee on the 22nd day of August, 1973 did see

the wife of the Petitioner in the community of Suquamish,

Kitsap County, Washington, and made the same request,

which she refused.

2. That on the 23rd day of August, 1973, the Court

made and entered an Order to Show Cause and Setting

Hearing, returnable on August 24, 1973, by the Re-

spondent, Edward Schlie, Chief of Police of the City of

Bremerton, and to which he “9 not answered as of the

te hereof, September 10, 1973.

* That on the date of August 24, 1973, when the Order

to Show Cause and Setting Hearing by the Court was re-

turnable by the Respondent, Edward Schlie, Chief of

Police of the City of Bremerton, Edward Schlie did cause

the custody of the Petitioner to be transferred to Fred

Guardipee in the forenoon of August 24, 1973, in the City

Jail at Bremerton. At that time and place, and for the re-

lease of the Fetitioner from imprisonment in the City of

Bremerton Jail, police offices of the City of Bremerton,

unknown to the Petitioner and acting within the authority,

direction and control of Edward Schlie, together with

Fred Guardipee, the Suquamish tribal police officer, did

require the custody and control of the Petitioner to be re-

leased to Fred Guardipee in exchange for his release from

imprisonment in the City of Bremerton Jail. Fred Guar-

dipee then required the Petitioner to sign an “Agreement

of Defendant to Appear for Trial”, a copy of which is at-

tached and made a part hereof as the Petitioner’s Exhibit

II. Fred Guardipee, the Suquamish tribal police officer,

did then deliver to the Petitioner an “Order Releasing De-

fendant on Personal Recognizance” signed by “Cecelia

Hawk, Judge Suquamish Tribal Court” of the “Suquamish

Provisional Court on Port Madison Indian Reservation”,

dated August 24, 1973, a copy of which is attached and

made a part hereof as Petitioner’s Exhibit III.

4. The additional defendants, Grace Dugan, Suquamish

Tribal Judge; Cecelia Hawk, Suquamish Tribal Judge; Don

Bread, Suquamish Tribal Manager; and Fred Guardipee,

acting individually and/or in concert with the Chief of

Police of Bremerton, at the time, times and places set

forth in the Petition for Writ of Habeas Corpus and this

supplement, have caused the personal liberty of the

Petitioner to be detained, restrained and imprisoned in the

past, and claim authority over his person to do so in the

future, as a continuous event from the date of his “arrest”

on August 19, 1973 to the present time. Cecelia Hawk,

Suquamish Tribal Judge, and Fred Guardipee, Suquamish

Tribal Police officer, claim authority over the person of the

Petitioner whereby his release from imprisonment in the

City of Bremerton Jail was exchanged for restraint on his

liberty by being made to appear before the Suquamish

Tribal Court on the 25th day of September, 1973, in ac-

cordance with Exhibit III hereof.

5. The respondents, George M. Felshaw, Superinten-

dent of the Port Madison Indian Reservation and Com-

mander of the Suquamish Tribal Police Force; Richard

Belmont, Jr., Chairman of the Tribal Council of the

Suquamish Indian Tribe; Donald Bread, Suquamish Tribal

Manager; Fred Guardipee, Suquamish Tribal Police Offi-

cer; Grace Dugan, Suquamish Tribal Judge; and Cecelia

Hawk, Suquamish Tribal Judge, acting individually and/or

in concert with the respondent, Edward Schlie, Chief of

Police of the City of Bremerton, and other unknown per-

sons acting as deputy police officers of the Suquamish In-

dian Tribe, at the times and places set forth in the Petition

for Writ of Habeas Corpus and this supplement, have

caused the personal liberty of the Petitioner to be de-

tained, restrained, and imprisoned and subject to the

claimed sovereign authority of the Suquamish Indian

Tribe, its police officers, court and authority, and claim

authority over his person to do so in the future, as a con-

tinuous event from the date of his false arrest on August

19, 1973 to the present time. Said respondents of the

Suquamish Indian Tribe, individually and in concert to-

gether, have held the Petitioner in unlawful imprison-

ment, demanded money from him which they have no au-

thority to receive, and have subjected him to cruel

punishment and treatment. The Suquamish Indian Tribe,

acting through its Tribal Chairman, Richard Belmont, Ir.;

Cecelia Hawk, Tribal Judge; Fred Guardipee, Tribal

Police Officer, for whom the respondent, George M. Fel-

shaw, is responsible, claim authority over the person of

the Petitioner whereby his release from imprisonment in

the City of Bremerton Jail was exchanged for restraint on

his liberty by being made to appear before the Suquamish

Tribal Court on the 25th day of September, 1973 in ac-

cordance with Exhibit III hereof. A copy of the Petition

for Writ of Habeas Corpus on file herein is attached and

made a part of this supplement as Exhibit IV hereof.

The Suquamish Indian Tribe and the individual re-

spondents above- stated are aeting in violation of the law of

the United States, the State of Washington, and any tribal

laws of the Suquamish Indian Tribe in the following par-

ticulars:

1. The sovereignty of the Suquamish Indian Tribe to

govern, pass, or adopt laws promulgated by the United

States, Department of Interior, Bureau of Interior Af-

fairs, and/or its own customs, whereby it has police offi-

cers and a tribal court with judges, with criminal jurisdic-

tion of a territorial nature over persons not members of

the Suquamish Indian Tribe has never existed and does

not now exist;

2. The passage of laws by the Suquamish Indian Tribe

and/or the Suquamish Tribal Council, the establishment of

the Suquamish Tribal Council and the orders of the

Suquamish Tribal Court, and the actions of its police offi-

cers that relate to the conduct of the Petitioner, a non-

Indian, herein alleged, are not law, or laws within the

meaning of the United States Constitution. Therefore, the

application thereof by the respondents herein-stated are in

violation of the laws of the United States, and the Con-

stitution of the United States, in accordance with the fol-

lowing articles thereof, where the rights of the Petitioner

are set forth:

a) Amendment IV—Searches and seizures

b) Amendment V Due process; just compensation for

property

c) Amendment VI—Jury trial for crimes; and pro-

cedural rights

d) Amendment XIV—Citizenship rights not to be ab-

ridged by States.

XI.

The Suquamish Indian Tribe and/or the individual re-

spondents above- stated are acting in violation of the laws of

the United States set forth in Chapter 15—Constitutional

Rights of Indians, Pub. L. 90-284, 25 USCA, Sections 1301,

1302 of Subchapter I, and Subchapter II, Section 1311, by

color of authority thereof and contrary thereto, as alleged

in the Petition for Writ of Habeas Corus and this supple-

ment, in the following particulars:

1. That upon information and belief of the Petitioner, the

purported laws claimed by the Respondents to have been

violated by the Petitioner were never authorized and

passed by due process of law in accordance with the Con-

stitution of the United States, or in accordance with any

Tribal Constitution or customs of the Suquamish Tribal

Community.

2. That the Respondents, Grace Dugan and Cecelia

Hawk, as Judges; and Fred Guardipee, as Police Officer,

have had little or no training in the process of law to pro-

tect the constitutional rights of a citizen of the United

States in the application and enforcement of the law to

which they claim authority in applying to the Petitioner,

and that their administration of “justice” in either the ar-

rest and trial of the Petitioner is without any safeguards in

procedure or training in accordance with due process of law

to which the Petitioner is entitled in the protection of his

liberty and freedom by the Constitution of the United

States.

3. That Fred Guardipee is not a police officer of the law;

the Suquamish Tribe Provisional Court is not a tribunal of

law; and Cecelia Hawk and Grace Dugan are not judges or

justices of the law; and the law which they claim to enforce

is not law within the meaning of the equal protection clause

of the 5th Amendment of the Constitution of the United

States and the 14th Amendment thereof, but is an arbitrary

abuse of power by the taking into their own hands of the

color of the law of the United States to which they are

neither authorized or entitled.

XII.

Because of the foregoing facts alleged in the Petition for

Habeas Corpus and this supplement thereto, the Petitioner

has been, and shall continue to be, restrained of his liberty

by the Respondents named herein, contrary to the Con-

stitution of the United States and by purported orders of

the Suquamish Indian Tribe.

XIII.

That the Respondents, Grace Dugan, Suquamish Tribal

Judge; Cecelia Hawk, Suquamish Tribal Judge; Fred Guar-

dipee, Suquamish Tribal Officer; Donald Bread, Suquamish

Tribal Manager; Richard Belmont, Jr., Chairman of the

Suquamish Indian Tribe Council; and George M. Felshaw,

Superintendent of the Western Washington Tribal Agen-

cies, acting under the color of the law of the Suquamish

Indian Tribe and/or acting in its behalf, have in concert, or

separately by themselves or their agents, violated the Con-

stitutional rights of the Petitioner as provided in 25 USCA,

1302 (Constitutional Rights) in the following particulars:

1) Restrained and imprisoned the Petitioner after an un-

lawful arrest for charge of an offense over which as to

the person of the Petitioner they had no jurisdiction

and did thereby violate the right of the Petitioner to

be secure in his person and property against unrea-

sonable seizure;

2) Did incarcerate the person of the Petitioner in a room

without food, heat or toilet facilities for a period of

six hours, or more, on August 19, 1973, and by the

display of armed force and the manner of confinement

at the Tribal Office of the Suquamish Indian Tribe did

inflict cruel and unusual punishment upon the

Petitioner;

3) Did deny the person of the Petitioner the right to be

informed of the nature and cause of the accusation

him, and to be confronted with the witnesses

against him at the time of his sentencing to the City

of Bremerton Jail in accordance with the due process

of the law to him applicable;

4) Deprived the person of the Petitioner of his liberty

without due process of the law of the jurisdiction ap-

plicable to the person of the Petitioner.

WHEREFORE, in accordance with P.O. 90-284, Title 11,

Section 203, dated April 11, 1968, of the United States (25

USCA 1303), the Petitioner requests the privilege of the

Writ of Habeas Corpus, to test the legality of the arrest,

restraint and detention by each of the Respondents, acting

individually or in concert together.

Therefore, the Petitioner requests as provided by law

from the allegations stated in the Petition for Writ of

Habeas Corpus and Supplement thereto, that the Court, in

accordance with 28 USCA Section 2243 (Issuance of Writ;

Return; Hearing; Decision) issue an Order to Show Cause

directed to each of the Respondents: Edward Schlie, Chief

of Police of the City of Bremerton; Donald Bread,

Suquamish Tribal Manager; Fred Guardipee, Suquamish

Tribal Police Officer; Grace Dugan, Judge of the Suquamish

Tribal Court; Cecelia Hawk, Judge of the Suquamish Tribal

Court; Richard Belmont, Jr. Chairman of the Suquamish

Tribal Council; and George M. Felshaw, Superintendent of

the Western Washington Tribal Agencies, to show cause

why a Writ of Habeas Corpus should not issue to dispose of

the matter by releasing the Petitioner from the acts of de-

tention and restraint against his liberty which the

Petitioner has alleged, or as a matter as the Court may de-

termine that law and justice require, after the return date

and hearing has been held as the Court may determine.

The Petitioner further requests that the Order to Show

Cause require the Respondents to return an answer to each

of the allegations contained in the Petition for Writ of

Aabeas Corpus and this supplement thereto, by a date cer-

tain not less than twenty (20) days from the date said Order

to Show Cause is issued, or the allegations contained

therein shall be deemed to be true and correct by the

Court, and that a copy of the Petition for Writ of Habeas

Corpus, Supplement to the Petition for Writ of Habeas

Corpus, and Order to Show Cause be served by the United

States Marshall on each of the Respondents as provided by

law. After the return date to the Order to Show Cause, the

Petitioner requests, as the Court may determine, that

either hearings be held for a determination by the Court as

to the necessary facts or law, and thereafter the Court

grant the Writ of Habeas Corpus and dispose of the matter

as law and justice requires.

DATED:

PETITIONER—MARK DAVID OLIPHANT

STATE OF WASHINGTON

County of KING

MARK DAVID OLIPHANT, being first duly sworn,

upon oath deposes and says: That he has subscribed to the

above and does state that the information therein is true

and correct to the best of his knowledge and belief.

MARK DAVID OLIPHANT

SUBSCRIBED and SWORN to before me this 10 day of

September, 1973.

NOTARY PUBLIC in and for the State of

Washington, residing at; Suquamish, Wash.

DISTRICT COURT—EXHIBIT II TO SUPPLEMENT

TO PETITION FOR WRIT OF HABEAS CORPUS:

AGREEMENT OF DEFENDANT TO APPEAR FOR

TRIAL, DATED AUGUST 24, 1973

Filed Sept. 11, 1973

iN THE SUQUAMISH PROVISIONAL COURT ON

THE PORT MADISON INDIAN RESERVATION

SUQUAMISH TRIBE

Plaintiff, NO. 1973-4

. AGREEMENT

OF DEFENDANT

MARK OLIPHANT TO APPEAR

Defendant. FOR TRIAL

I hereby agree to appear for my trial in Suquamish Tribal

Court to be held in Suquamish Tribal Office in Suquamish,

Washington at 6:00 p.m. on September 25, 1973.

Dated this 24 day of August, 1973.

Mark Oliphant

Witness

DISTRICT COURT—ORDER TO SHOW CAUSE AND

SETTING HEARING

Filed Sept. 25, 1973

(Caption Omitted in Printing)

Petitioner filed a “Petition for Writ of Habeas Corpus” on

August 23, 1973, and, by leave of Court, filed a “Supple-

ment to Petition for Writ of Habeas Corpus” on September

11, 1973. In the “Order Granting Leave to File and Serve

Supplement to Petition for Writ of Habeas Corpus,” signed

by the Court September 11, 1973, the petitioner was

granted leave to serve the Petition on the additional re-

spondents and it was ordered in open court that service

would be made by the United States Marshal. A briefing

schedule and hearing date were set on the assumption that

service would be made immediately; however, the addi-

tional respondents have not yet been served or given notice

of the hearing originally scheduled for October 11, 1973.

Therefore, the Court modifies its earlier rulings in open

court and

ORDERS that Edward Schlie, Chief of Police of the City

of Bremerton, the original respondent, shall show cause

why the writ should not be granted on the basis of the

“Supplement to Petition for Writ of Habeas Corpus” on or

before October 15, 1973. The additional respondents shall

show cause why the writ should not be granted on the basis

of the “Petition for Writ of Habeas Corpus” and the “Sup-

plement to Petition for Writ of Habeas Corpus” on or be-

fore October 15, 1973. A memorandum of authorities shall

be filed by petitioner on or before October 15, 1973. An-

swering memoranda, if any, may be filed by all parties on

or before October 23, 1973. A hearing shall be had at 3:00

p.m., Thursday, October 25, 1973, before this Court.

In the returns and memoranda submitted pursuant to

this Order, the Court requests that attention also be di-

rected to these subjects:

1. Description of the various Indian lands, both Trust

and non-Trust, involved in the present controversy

and an analysis of their present status.

2. Description of the Suquamish Indien Tribe as pres-

ently constituted and the status of nembers in re-

lation to the lands in controversy.

3. Authority of the Suquamish Indian Tribe to promul-

gate its Code of Laws, affixed as Appendix A to the

Memorandum of Authorities of Amicus Curiae filed

September 10, 1973.

4. Description of federal or state statutes or regula-

tions, if any, which have limited or restricted the

sovereign power of the Suquamish Indian Tribe.

The Clerk of this Court is hereby directed to mail an un-

certified copy of this Order to petitioner and to counsel for

the petitioner. The United States Marshal for this District

is hereby directed to serve this Order, a copy of “Petition

for Writ of Habeas Corpus,” and a copy of “Supplement to

Petition for Writ of Habeas Corpus” on all the named re-

spondents.

DATED this 25 day of September, 1973, at Seattle,

Washington.

/s/ Morill E. Sharp

UNITED STATES DISTRICT JUDGE

DISTRICT COURT—EXHIBIT 9 TO UNITED STATES

MEMORANDUM OF AMICUS CURIAE: COMPLAINT,

FOR VIOLATION OF OFFENSE OF SECTION 6,

CHAPTER 3 OF SUQUAMISH INDIAN TRIBAL LAW

AND ORDER CODE

Filed Oct. 26, 1973

IN THE SUQUAMISH PROVISIONAL COURT ON THE

PORT MADISON INDIAN RESERVATION

THE SUQUAMISH INDIAN TRIBE,

Plaintiff,

vs. COMPLAINT

MARK DAVID OLIPHANT,

Defendant.

PERSONALLY APPEARED before me this date,

, who, first being sworn complains and says:

that one Mark Oliphant on or about the 19th day of August

A.D. 1973 in the PORT MADISON RESERVATION, state

of WASHINGTON, did commit the offense of section 6

chapter 3 as foliows: While attempting to break up fight

between this white man and (not eligible), was assaulted

and knocked down causing bodily harm, contrary to the

form, force and effect of the statutes in such case made and

provided and against the peace and dignity of the

SUQUAMISH TRIBE.

SAID COMPLAINT therefore prays that a warrant is is-

sued for the arrest of said Mark Oliphant AND THAT HE

BE DEALT WITH ACCORDING TO LAW.

/s/_ _— (not eligible)

Subscribed and sworn to before me this

7. >

day of

(Unsigned) JUDGE

DISTRICT COURT—EXHIBIT 9 TO UNITED STATES

MEMORANDUM OF AMICUS CURIAE: COMPLAINT,

FOR VIOLATION OF OFFENSE OF SECTION 62,

CHAPTER 3 OF SUQUAMISH INDIAN TRIBAL LAW

AND ORDER CODE

Filed Oct. 26, 1973

IN THE SUQUAMISH PROVISIONAL COURT ON THE

PORT MADISON INDIAN RESERVATION

THE SUQUAMISH INDIAN TRIBE,

Plaintiff,

vs. COMPLAINT

MARK DAVID OLIPHANT,

Defendant.

PERSONALLY APEARED BEFORE ME THIS

DATE,

who, first being sworn complains and says: that one Mark

Oliphant on or about the 19th day of August A.D. 1973 in

the PORT MADISON RESERVATION, state of WASH-

INGTON, did commit the offense cf section 62 chapter 3 as

follows: Said defendant did wilfully and wrongly resist (not

eligible) and knocked him down causing bodily harm (not

eligible) apprehension but was (not eligible), contrary to the

form, force, and effect of the statutes in such case made and

provided and against the peace and dignity of the

SUQUAMISH TRIBE.

SAID COMPLAINT therefore prays that warrant is is-

sued for the arrest of said

AND THAT HE BE DEALT WITH ACCORDING TO

LAW.

s (not eligible)

Subscribed and sworn to before me this day of

(Unsigned) JUDGE

DISTRICT COURT—VERIFICATION OF

RICHARD BELMONT, JR.

Filed Jan. 25, 1974

(Caption Omitted in Printing)

STATE OF WASHINGTON

COUNTY OF KING

I, RICHARD BELMONT, JR., being first duly sworn upon

oath, do depose and say:

1. I am the Chairman of the Suquamish Indian Tribe of the

Port Madison Indian Reservation, Washington.

2. I have read the original Memorandum of Authorities of

the Suquamish Tribe as Amicus Curiae as well as the addi-

tional — of Authorities of Additional Respondents

and know the assertions in those memoranda to be true.

RICHARD BELMONT, JR.

SUBSCRIBED AND SWORN to before me

this 25th day of January, 1974.

NOTARY PUBLIC in and for the State

of Washington, residing at Seattle.

DISTRICT COURT—AFFIDAVIT OF

MARTHA F. GEORGE

Filed Jan. 25, 1974

(Caption Omitted in Printing)

STATE OF WASHINGTON

ss.

County of King

I, MARTHA F. GEORGE, being first duly sworn upon oath,

depose and say:

1. I am eighty-one (81) years of age and an enrolled

member of the Suquamish Indian Tribe.

2. I have lived within the area known as the Port Madi-

son Indian Reservation for almost all my life. In my

younger days I lived in Bremerton, Washington. I have

lived in my present home for over fifty years. I have been

well acquainted with all the members of the Suquamish In-

dian Tribe and “Certificate of Results of Suquamish Con-

stitutional Election”, a copy of which is attached to this Af-

fadavit. I was elected and served as Chairman of the

Suquamish Tribal Council for a period of three (3) years and

one of the years was 1965 when the Constitution and By

Laws of the Suquamish Indian Tribe was adopted.

3. Commencing approximately the year 1940 I attended

meetings of the tribe quite regularly. To have a quorum it

was necessary to have a meeting of twenty-eight (28) mem-

bers or more. During that time most often not more than

the members necessary to have a quorum of the general

membership of the tribe would meet and it would be neces-

sary at times to go out and bring in members of the tribe in

order to have a quorum.

4. At all times from 1940 to the end of my chairmanship

of the tribe there was never any talk at meetings by the

members of passing laws to control the conduct of any per-

son on the Pert Madison Indian Reservation.

5. To be a member of the Suquamish Indian Tribe the

Constitution requires a person to be one-eighth (%) Indian

blood. I have made a list to my knowledge of all the enrol-

led members of the Suquamish Indian Tribe presently liv-

ing on the Port Madison Indian Reservation. Their names

and number are listed and with a question mark if they may

not be an eligible member, as follows:

Harold (minor)

George family

Martha

Lawrence family

Chuck

Children (minors)

Fowler family

Leonard

Ken

George family

Marilyn

Children

Hawk family

Cecelia

Children (2 minors)

Forsman family

James

Marion

Children (2 minors)

Child (minor)

Loughry

Ada

Mac

Webster

Lawrence

Child, adopted (minor)

Deam family

Charles

Child (minor)

Lindell family

ary p

Children (minors)

Karrier

Eddy

Children (minors)

Total members living

on reservation

6. To my knowlege I have counted and made a list of the

eligible voters that are now living within the boundaries of

the Port Madison Indian Reservation and entitled to vote.

Their number is approximately twenty-two (22).

7. All of the members living on the Port Madison Indian

Reservation do not live in any local area, more or less to-

gether. Most of the members do not live in the area of the

reservation. Different families living on the reservation live

in different areas, some live on old allotments and others

live on lands and pay taxes to the Kitsap County. Some live

in the village of Suquamish, Millers Bay and other areas

separated from another.

8. About four or five attend the Catholic Church, others

do not attend church. None go to different or separate

churches, schools from persons that are not members of the

tribe. Chief Seattle Days was celebrated each year as spon-

sored by the American Legion. They had sponsored it

every year for the past years. The celebration was

participated in by everyone, until 1973 when the present

Tribal Council limited sponsorship and participation for In-

dian programs only.

/s/ 1/24/74

Martha F. George

SUBSCRIBED AND SWORN to before me

this 24th day of January, 1974.

/s/ PPM

Notary Public in and for the State of

Washington, residing at Seattle.

DISTRICT COURT—AFFIDAVIT OF ROBERT J.

SMILEY

Filed Jan. 25, 1974

(Caption Omitted in Printing)

STATE OF WASHINGTON

COUNTY OF KITSAP

I, ROBERT J. SMILEY, being first duly sworn upon oath,

depose and say:

1. I am the Associate Planner, Kitsap County Planning

Department, employed by Kitsap County, Washington.

2. In 1969 the Kitsap Planning Department generated

maps in Kitsap County, Washington, a copy of which is

marked “MAP #7, Kitsap County Planning Map—1973”.

Represented on that map are dots indicating the number

of dwellings located within the area mapped. The number

of dwelling units was updated with information from build-

ing permits issued in Kitsap County, Washington. There

are approximately a total of nine hundred seventy six (976)

dwelling units, as indicated on Map #7 with the number

thereof in a circle. A rough estimate of the population of

the area occupying the dwellings is approximately three

(3) persons per dwelling, for a total of two thousand nine

hundred twenty-eight (2,928) living within the area

marked on Map #4. Attached to this Affadavit is Maps of

Petitioner’s Memorandum of Authorities, the number of

which I have referred to herein.

/s/

Robert J. Smiley

SUBSCRIBED AND SWORN to before me this 25 day of

January, 1974.

/s/

Notary Public in and for the State

of Washington, residing at Seattle.

DISTRICT COURT—MEMORANDUM OPINION OF

U.S. DISTRICT

JUDGE MORILL E. SHARP

Filed April 5, 1974

(Caption Omitted in Printing)

This case involves the jurisdiction of an Indian tribal

court over a non- Indian charged with commiting a criminal]

offense on tribal trust property.

Petitioner applied to this Court for a writ of Habeas

Corpus and the matter came on for hearing September 11,

1973 and January 27 1974, before the undersigned Judge.

All parties appeared in person or by their counsel of rec-

ord. The Court considered amicus curiae briefs submitted

on behalf of Confederated Tribes of the Colville Indian

Reservation, Quinault Tribe of Indians, National Tribal

Chairmen’s Association, Pima-Maricopa Tribes of the Gila

River Reservation, Nisqually Tribe, and the Squaxin Is-

land Tribe.

Petitioner, Mark David Oliphant, a non-Indian, was ar-

rested by tribal deputy police, acting under the authority

of the Squamish Indian Tribe of the Port Madison Indian

Reservation, at 4:20 a.m. on August 19, 1973. Petitioner

was charged with assaulting a tribal police officer and re-

sisting arrest on land within the boundaries of the Port

Madison Indian Reservation, which is held in trust by the

United States for the benefit of the Squamish Indian

Tribe. All acts alleged to have been committed by

petitioner took place on the tribal encampment grounds on

this trust land. Thirty-six acres of tribally-owned trust

land, including the tribal encampment ground, were leased

by the Squamish Indian Tribe to Chief Seattle Properties,

Inc., a Washington corporation. The arrest took place dur-

ing the Suquamish tribal celebration known as Chief Seat-

tle Days, and a number of Indians were encamped on the

tribal grounds to attend the celebration.

Following his arrest, petitioner was arraigned and bail

was set in the amount of $100 for each charge, for a total

of $200. Petitioner did not put up the bail and was incarc-

erated for a period of five (5) days in the Bremerton City

Jail, as a prisoner of the Suquamish Indian Tribe, under an

agreement between the City of Bremerton and the Bureau

of Indian Affairs providing for the holding of tribal prison-

ers in the jail facility. On August 24th, petitioner was re-

leased on his personal recognizance from the City of Bre-

merton Jail pursuant to an order of the tribal court.

Trial was set in tribal court for September 25, 1973.

After the filing of this application for writ of habeas cor-

pus, the tribal court continued the matter pending out-

come of this federal court action.

On January 25, 1974, respondent Edward Schlie was

dismissed from this proceeding by this Court in that he no

longer had custody or control over the petitioner.

The Port Madison Indian Reservation was established

pursuant to the Treaty of Point Elliott, January 22, 1855,

and encompasses land established by an official survey ap-

proved May 5, 1860, as well as land added to the Reserva-

tion by a Department of Interior order dated October 21,

1864. The boundaries are aiso indicated by a survey ap-

proved September 8, 1874. These surveys established that

the Port Madison Reservation is located on the mainland

opposite Bainbridge Island in Township 25 and 26 North,

Range 2 East, W.M., State of Washington. There have

been no Congressional enactments or other federal action

terminating or diminishing the boundaries of this reserva-

tion, either expressly or by implication. The alleged crimi-

nal acts took place on Government Lot 3, Section 21,

Township 26 North, Range 2 East, W.M., State of Wash-

ington, which is within the established boundaries of the

reservation.

The Suquamish Indian Tribe is a federally approved

tribe organized under the Indian Reorganization Act of

1934 and operating under a valid constitution and bylaws.

Under the Indian Reorganization Act of 1934, Indian

tribes were authorized to organize and function as local

goverr™ental bodies on reservations and certain inherent

sover .gn powers of the tribes were recognized. The

Suquamish Indian Tribe is a tribe so organized.

The tribe has established a valid justice and law en-

forcement program on the reservation by enactment of an

approved Law and Order Code and the establishment of a

police system and tribal court. The existence of the tribe

and its right to carry out government services has at all

times been recognized by the Department of Interior,

United States Congress, and the courts.

Once a reservation has been established, all tracts in-

‘cluded within it remain a part of the reservation until

separated therefrom by Congress. U.S. v. Celestine, 215

U.S. 278 (1909). A Congressional determination to termi-

nate must be expressed upon the face of a Congressional

act or be clear from the surrounding circumstances and

legislative history of an enactment. Mattz v. Arnett, 412

U.S. 481 (1973). Congress has not terminated or di-

minished the Port Madison Indian Reservation or changed

or abolished its boundaries since the enlargement in 1864.

Merely opening the reservation to non-Indian settlement

does not terminate nor diminish the reservation bound-

aries. Since Congress has not terminated or diminished

the reservation, the boundaries described above still

constitute the boundaries of the Port Madison Indian

Reservation.

The nature of Indian tribal powers is marked by three

fundamental principles: (1) an Indian tribe possessed, in

the first instance, all the powers of any sovereign state; (2)

Congress rendered the tribe subject to the legislative

power of the United States, and, in substance, terminated

the external p/wers of sovereignty of the tribe but did not

by itself terminate the internal sovereignty of the tribe,

i.e., its powers of local self-government; and (3) these

internal powers were, of course, subject to qualification by

treaties and by express legislation of Congress, but, save

as thus expressly qualified, the powers of internal

sovereignty have remained in the Indian tribe and their

duly constituted organs of government. Worcester v.

Georgia, 31 U.S. 515 (1832).

So long as a complete and independent sovereignty of an

Indian tribe was recognized, its criminal jurisdiction, no

less than its civil jurisdiction, was that of any sovereign

power. It might punish its subjects for offenses against

each other or against aliens and for public offenses against

the peace and dignity of the tribe. Furthermore, an Indian

tribe’s powers of local self-gévernment originally included

the power to enact criminal laws pertaining to non-Indians

and to confer upon its tribal court jurisdiction over the

person of a non-Indian to enforce such laws on those lands

reserved for such Indians within the established bound-

aries of their reservation. Such jurisdiction continues to

this day, save as it has been expressly limited by the acts

of a superior government, i.e., the United States Govern-

ment. 55 I. D. 14 (October 25, 1934). Therefore, the

Suquamish tribe may exercise its powers of local govern-

ment over a non-Indian who enters within the tribe's ter-

ritorial jurisdiction and commits an offense defined as a

crime by its local tribal laws uniess Congress has ex-

pressly extinguished the tribe’s original inherent powers

of self-government with respect to such a crime.

Although the acts of petitioner may constitute a federal

crime under the general criminal laws of the United

States, the same acts may also constitute a tribal crime

under the local laws of the Suquamish Indian Tribe for

which the offender may be lawfully prosecuted and

punished by the Suquamish tribal court. In the present

case, the United States has chosen not to assert its juris-

diction and the tribe has asserted its share of the concur-

rent jurisdiction of the tribe and the United States.

This conclusion is consistent with the policy of Congress

and the Secretary of the Interior to encourage, stimulate

and educate Indian tribes to establish and strengthen their

local governments and courts to handle their law enforce-

ment problems according to tribal laws.

Congress has, to an extent, limited the governmental

powers of the Suquamish tribe to enforce its local laws in

that an Indian tribe may not enact local laws which conflict

directly with federal laws applicable in Indian country and

its criminal jurisdiction is limited to a criminal penalty of

not more than six months imprisonment or a fine of $500 or

both for any one offense in violation of its tribal laws.

In addition, Congress has granted certain protections to

persons subject to tribal jurisdiction in 25 U.S.C. §1302 of

the Indian Civil Rights Act of 1968. This Act applies to

both Indians and non-Indians alike when within tribal

jurisdiction. Dodge v. Nakai, 298 F.Supp. 17 (D. Ariz.

1968). Thus, any person has the right to declaratory and

injunctive relief by a federal court for violation of the In-

dian Civil Rights Act by tribal government. In addition, as

in this case, a person may apply to the United States Dis-

trict Court for a writ of habeas corpus.

The Suquamish tribal court, the duly constituted and

authorized branch of Suquamish tribal government, has

jurisdiction over the subject matter and person of the

petitioner and thus far has provided petitioner with all ap-

propriate protections under the Indian Civil Rights Act of

1968 in accordance with concepts of due process and the

equal protection of the laws as in the United States Con-

stitution.

The Court's conclusions as to the jurisdiction of the

Suqtamish Indian Tribe over non-Indians is restricted to

the facts of this case, that is, criminal offenses over which

the United States has not declared its jurisdiction occur-

ring on land held in trust by the United States Govern-

ment for the benefit of Indians within the exterior bound-

aries of the Port Madison Indian Reservation. Jurisdiction

of the Suquamish tribe over non-Indians on fee patent

lands within the reservation is not presently before the

Court, and the Court expresses no views on the question.

In view of the jurisdiction of the Suquamish tribal court

and the Suquamish tribe over the perse*i and subject mat-

ter herein and the fact that petitioner has been afforded all

the protections available to him under the Indian Civil

Rights Act, judgment shall be entered denying the appli-

cation for a writ of habeas cevnus.

The Clerk of this Court trueted to send uncertified

copies of this Memoran Opinion to all counsel of

record.

DATED at Seattle, Washington, this — day of

March, 1974.

UNITED STATES DISTRICT JUDGE

DISTRICT COURT—JUDGMENT

Filed April 5, 1974

(Caption Omitted in Printing)

This action came on for trial (hearing) before the Court,

Honorable Morell E. Sharp, United States District Judge,

presiding, and the issues having been duly tried (heard)

and a decision having been duly rendered,

It is Ordered and Adjudged that the petition for a writ

of habeas corpus is hereby denied and the petition is

herewith dismissed.

DATED at Seattle, Washington, this 5th day of April,

1974.

_ 8

Betty Fleming

Deputy Clerk of Court

54 55

DISTRICT COURT—NOTICE OF APPEAL | NINTH CIRCUIT COURT OF APPEALS—OPINION

Filed April 30, 1974 Filed Aug., 24, 1976

(Caption Omitted in Printing) : UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

, NOTICE 18 — * that MARK DAVID OLIPHANT,

’etitioner above-named, hereby appeals to the United

States Court of Appeals for the 9th Cireuit from the

J udgment entered in this action on the 10th day of April, vs

1974 denying the issuance of a Writ of Habeas Corpus as EDWARD SCHLIE Chief of

petitioned for herein. Police of the CITY OF

BREMERTON, and THE

— a SUQUAMISH INDIAN TRIBE —

aT *

PHILIP P. MALONE, RICHARD BELMONT, JR.

Attorney for Petitioner Chairman of Council of

! SUQUAMISH INDIAN TRIBE;

DONALD BREAD, Suquamish No. 74-2154

Tribal Manager; FRED OPINION

GUARDIPEE, Suquamish

Tribal Police Officer; GRACE

DUGGAN, Suquamish Tribal

ö Judge; CECILIA HAWK,

Suquamish Tribal Judge; and

GEORGE M. FELSHAW,

Superintendent of the

Western Washington Tribal

Agency,

Defendant-Appellees.

: Appeal from the United States District Court

for the Western District of Washington

Before: DUNIWAY and KENNEDY, Circuit Judges, and

BuRNS,* District Judge

DuUNIWAY, Circuit Judge:

This case involves a question of Indian law which has

been unresolved since it first arose almost a century ago;

what is the jurisdiction of an Indian tribe over non-

Indians who commit crimes while on Indian tribal land

* The Honorable James M. Burns, United States District Judge for the

District of Oregon, sitting by designation.

within the boundaries of the reservation? See Ex parte

Kenyon, C.C.W.D. Ark., 1878, Fed. Cas. No. 7720, 14

Fed. Cas. 353. Oliphant was arrested on the Port Madi-

son Indian Reservation in the state of Washington by

Suquamish tribal police on August 19, 1973, and charged

before the Provisional Court of the Suquamish Indian

Tribe with assaulting an officer and resisting arrest. He

was incarcerated by order of the tribal court in lieu of

$200 bail, but then released on his own recognizance by

that court. Before trial he petitioned the United States

District Court for a writ of habeas corpus, alleging that

an Indian tribal court can have no jurisdiction over a

non-Indian. The district court denied the writ and

Oliphant appeals. We affirm.

ifAsdiction in this case is founded on 25 U.S.C. §1303

and 28 U.S.C. §§2241(c) (1) and (3). See Colliflower v.

Garland, 9 Cir., 1965, 342 F.2d 369, 379. Oliphant’s re-

lease on his own recognizance did not deprive the district

court of jurisdiction. Hensley v. Municipal Court, 1973,

411 U.S. 345.

Oliphant argues that the Suquamish have no jurisdic-

tion over non-Indians because Congress never conferred

such jurisdiction on them. This misstates the problem.“

The proper approach to the question of tribal criminal

jurisdiction is to ask “first, what the original sovereign

powers of the tribes were, and, then, how far and in

what respects these powers have been limited.” Powers

The dissenting opinion similarly misstates the problem. The question

is not whether Congress has conferred jurisdiction upon the tribe.

The tribe, before it was conquered, had jurisdiction, as any inde-

pendent nation does. The question therefore is, did Congress (or a

treaty) take that jurisdiction away? The dissent points to no action by

the Congress, and no treaty language, depriving the tribe of jurisdic-

tion. The language of the 1791 treaty with the Cherokees, cited in

footnote 5 of the dissent, is no more than a waiver of the right that all

nations retain, to endeavor, through diplomatic means to protect

their citizens who go or reside abroad. The waiver is limited to those

citizens who elect to settle on Indian land. It does not, expressly or

by implication, reject the universal rule that one who visits another

nation subjects himself to its jurisdiction. It does not imply that ab-

sent the treaty provision, the Cherokees would have lacked jurisdic-

tion. Much less does it imply that the jurisdiction of the Cherokees

over citizens was to be limited to those who settled on Cherokee

lands. A citizen visitor to the Cherokee nation, like the settler, would

be subject to its jurisdiction, but, unlike the settler, could invoke the

diplomatic protection of the United States.

— -

— — —— —

of Indian Tribes, 1934, 55 I. D. 14, 57. See Ortiz-Barraza

v. United States, 9 Cir., 1975, 512 F.2d 1176, 1179. It

must always be remembered that the various Indian

tribes were once independent and sovereign na-

tions. McClanahan v. Arizona State Tax Comm.,

1973, 411 U.S. 164. 172, who, though conquered and de-

pendent, retain those powers of autonomous states that

are neither inconsistent with their status nor expressly

terminated by Congress. Worcester v. Georgia, 1832, 6

Pet. (31 U.S.) 515, 560-61; Cherokee Nation v. Georgia,

1831, 5 Pet. (30 U.S.) 1, 17-18.

Surely the power to preserve order on the reservation,

when necessary by punishing those who violate tribal

law, is a sine qua non of the sovereignty that the

Suquamish originally possessed. As the Eighth Circuit

held seven decades ago when it upheld the right of the

Creek Nation to tax non-Indian residents:

It was one of the inherent and essential attributes of

its original sovereignty. It was a natural right of that

people, indispensable to its autonomy as a distinct

tribe or nation, and it must remain an attribute of its

government until by the agreement of the nation itself

or by the superior power of the republic it is taken

from it. Buster v. Wright, 8 Cir., 1905, 135 F. 947,

950, appeal dismissed, 1906, 203 U.S. 599.

The Supreme Court, in dictum, has declared not oniy that

Indian tribes have criminal jurisdiction, but that “if the

crime was by or against an Indian, tribal jurisdiction or

that expressly conferred on other courts by Congress has

remained exclusive.” Williams v. Lee, 1959, 358 U.S. 217,

220.

As we recently said in United States v. Burns, 9 Cir.,

1975, — F.2d — (No. 74-8022, Dec. 22, 1975):

Just as state law is not to apply on Indian lands, unless

expressly authorized by federal statute, so also, federal

enclave law is not to apply unless expressly authorized.

— F.2d at __ (slip op. at 4)

We turn to the relevant treaties and Congressional acts

to see whether any has withdrawn from Suquamish the

power to punish Oliphant for a violation of the tribal law

and order code. Our approach is influenced by the long-

standing rule that “legislation affecting the Indians is to

be construed in their interest.” ? United States v. Nice,

1916 241 CJ. S. 591, 599; Santa Rosa Band of Indians v.

Kings County 9 Cir., 1975, — F.2d — (Nov. 3, 1975,

slip op. at 6-7). See also Bryan v. Itasca County, 1976,

__ U.S. ___ June 14, 1976, slip op. at 18-19); McClana-

han v. Arizona State Tax Comm., supra, 411 U.S. at 174.

The starting point in determining how much of their

original sovereignty the Suquamish have lost is the Treaty

of Point Elliott, 12 Stat. 927 (1859), the first treaty be-

tween these people and the Untied States. While other

treaties with other tribes had expressly granted or with-

drawn the power to try non-Indian criminals, the Treaty

of Point Elliott was silent on the subject. M. Price, LAw

AND THE AMERICAN INDIAN 22-27 (1973). The only signif-

icant surrender of internal autonomy was contained in Ar-

ticle IX of the Treaty, in which the Indian signatories

agreed not to “shelter or conceal offenders against the law

of the United States, but to deliver them up to the au-

thorities for trial.” 12. Stat. 929. See Arizona ex rel. Mer-

rill v. Turtle, 9 Cir., 1969, 413 F.2d 683, cert. denied,

1970, 396 U.S. 1003.

The second and last treaty or agreement between the

Suquamish and the United States, 33 Stat. 1078 (1905),

involved the relinquishment of land by the Indian tribes

residing on the Port Madison reservation. It did not men-

tion the transfer of any powers and specifically provided

that it did not deprive the Indians of any benefits “not in-

consistent with the provisions of this agreement.” 33 Stat.

1079. No treaty has deprived the Suquamish of criminal

jurisdiction over Oliphant. We therefore shift our atten-

tion to Congressional acts.

Oliphant relies on three statutes to support his thesis

that Indian tribes do not have criminal jurisdiction over

non-Indians. First, he argues that 18 U.S.C. 81152 has

withdrawn criminal jurisdiction over non-Indians from In-

dian tribes. We cannot read §1152 as withdrawing from

Indian tribes criminal jurisdiction that they otherwise pos-

sess. It extends federal criminal laws applicable to federal

enclaves to Indian country, but it does not attempt either

to extinguish tribal jurisdiction or to declare federal juris-

diction exclusive. In light of the principles of statutory

construction enunciated in Nice, supra, and Santa Rosa

2 The dissent also flies in the face of this long standing rule.

Band of Indians, supra, this could end our inquiry. How-

ever, we find additional support in the legislative history

of 81152.

Section 1152 originated as §4 of the Indian Trade and

Intercourse Act of 1802, 2 Stat. 141. It was reenacted in

1817 (3 Stat. 383), 1834 ($25 of the Trade and Intercourse

Act, 4 Stat. 733), and 1854 (§3 of the Act of March 27, 1854

10 Stat. 270), when it was modified to eliminate the possi-

bility that an Indian subjected to tribal discipline could

also be tried in federal court.* Except for minor language

changes when it was incorporated into the Revised Stat-

utes and later into the United States Code, §1152 has not

changed since 1854.

Our reading of the Congressional history convinces us

that 81152 was not intended, and should not be read, to

prohibit Indian tribes from prosecuting non-Indians for of-

fenses against tribal Jaw committed on the reservation.

Section 1152 can be explained more rationally as an at-

tempt to protect Indian tribes, who had no established

legal system and whose authority was frequently chal-

lenged by unsympathetic state governments, see Cherokee

Nation v. Georgia, supra, from depredations by “unprin-

cipled white men.” H.R. Rep. No. 474, 23 Cong., Ist Sess.

98 (1834).

[I}t is rather of courtesy than of right that we undertake

to punish crimes committed in that territory by and

against our own citizens. And this provision [§25 of the

Trade and Intercourse Act of 1834] is retained princi-

pally on the ground that it may be unsafe to trust to

Indian law in the early stages of their Government.

Id. at 13.

That this measure did not also protect non-Indians against double

jeopardy does not indicate that only Indians were susceptible to fed-

eral and tribal discipline. Passed during the Kansas-Nebraska de-

bates of 1854, this measure was disposed of rapidly and almost with-

out debate. Section 3 may well have protected only Indians from dou-

ble jeopardy merely because, in the only case in which a person had

suffered both tribal and federal punishment, the defendant happened

to be a Creek Indian. 23 Cong. Globe 700-01 (1854).

As stated in the House Report on a companion bill to establish a

western Indian territory: “As to those persons not required to reside

in the Indian country, who voluntarily go there to reside, they must

be considered as voluntarily submitting themselves to the laws of the

tribes.” Jd. at 18.

Only one case cited by Oliphant, Ex parte Kenyon,

supra, tends to support his argument that §1152 deprives

Indian tribes of jurisdiction over non- Indians.“ Kenyon,

however, concerned a crime committed outside the ter-

ritorial boundaries of “Indian country,” a fact which fig-

ured prominently in the court’s opinion. See Elk v. Wil-

kins, 1884, 112 U.S. 94, 108. The assertion that an Indian

tribe can have no jurisdiction over a non-Indian was dic-

tum, mentioned only in passing and without supporting

authority. Our de novo examination of Indian law deci-

sions since Cherokee Nation v. Georgia, supra, convinces

us that the statement by Judge Parker in Kenyon and

cited as supporting Oliphant’s position is wrong. LAW AND

THE AMERICAN INDIAN, supra, 471-75; Recent Develop-

ments, indian Tribal Courts, 18 St. Louis U.L.J. 461,

462-64 (1975).

Second, Oliphant argues that the Indian Civil Rights

Act of 1968, 25 U.S.C. §1302, ousts the tribal court of

jurisdiction. That Act applies certain due process re-

quirements to Indian tribes exercising powers of self-

government because the Supreme Court in Talton v.

Mayes, 1896, 163 U.S. 376, had held that the Bill of Rights

in the Federal Constitution did not apply to Indian tribal

governments. Nothing in the Indian Bill of Rights pur-

ports to withdraw any criminal jurisdiction of the Indian

tribes. It recognizes such jurisdiction, but prescribes cer-

tain due process type limitations upon its exercise.

Section 1302 provides: “No Indian tribe in exercising

powers of self-government shall—. . . (7) . . . impose for

conviction of any one offense any penalty or punishment

greater than imprisonment for a term of six months or a

fine of $500, or both; . . . (10) deny te any person accused

of an offense punishable by imprisonment the right, upon

request, to a trial by jury of not less than six persons.”

Oliphant argues that a fair trial for him is impossible be-

cause non-Indians would be excluded from the venire. This

issue is raised prematurely. Oliphant is entitled to a fair

trial; if he should be denied one, appeal from a conviction

or a petition for a writ of habeas corpus would then be

»The additional authorities cited by Oliphant, F. Cohen. HANDBOOK

OF FEDERAL INDIAN LAW 148 (1945) and Criminal Jurisdiction of In-

dian Tribes over Non-Indians, 1970, 77 JI. D. 113, withdrawn January

25, 1974, base their conclusions entirely on Kenyon. They are, there-

fore, only as persuasive as their source.

appropriate. Further discussion of this contention is

unnece .

Third, Oliphant argues that §7 of Public Law 280 (P. L.

83-280, 67 Stat. 590, 1953, modified by P.L. 90-284, §401,

82 Stat. 78, 1968; 25 U.S.C. §1321) deprives the

Suquamish of jurisdiction over him. This statute permits a

state to assume certain criminal jurisdiction in Indian

country, with the consent of the affected tribe. Pursuant

to this law, Washington adopted a statute, Laws of 1957,

ch. 240, assuming jurisdiction whenever the governor of

the state received the tribal assent. The Suquamish con-

sented and on May 15, 1958, the Governor proclaimed the

effectiveness of the state jurisdiction.

However, in 1968, Congress provided for retrocession

by a state of the jurisdiction assumed by it under §1321.

P. L. 90-284, 82 Stat. 79, 25 U.S.C. 81323. On August 26,

1971, the Governor of Washington proclaimed retrocession

to the United States of jurisdiction over the Suquamish

Port Madison Indian Reservation. By Executive Order

No. 11435, 33 F.R. 17339, the President designated the

Secretary of the Interior as authorized to exercise the au-

thority of the United States under §1323, his acceptance of

retrocession to be effective by being published in the Fed-

eral Register. On April 14, 1972, the Secretary accepted

the retrocession proclaimed by the Governor. 37 F.R.

7353.

Oliphant argues that the Governor’s proclamation was

invalid under state law and can have no effect. In our opin-

ion, the question is one of federal law, not state law. The

acceptance of the retrocession by the Secretary, pursuant

to the authorization of the President, made the retroces-

sion effective, whether or not the Governor’s proclamation

was valid under Washington law. In this respect, we agree

with the views of Judge Denney in United States v.

Brown, D. Neb., 1971, 334 F. Supp. 536, 540-41:

The federal government, having plenary power over

the Indians, had the power to prescribe any method or

event it desired to trigger its own re-assumption of con-

trol over Indian affairs within a state. In fact, the trig-

gering event could have been devoid of any mention of

state action at all.

The plenary power of the federal government over In-

dian affairs, the inescapable difficulty of requiring the

Secretary to delve into the internal workings of the

state government, and the reliance of the federal gov-

ernment upon what appeared to have been a valid state

action, are all factors to be considered and lead the

Court to the conclusion that the fede al int arpretation of

the effectiveness of state action triggering the re-

assertion of federal jurisdiction is and was controlling.

“Retrocession” does not imply any particular procedure

or action on the part of the states involved — the need

for finality and importance of the various competing

interests here dictates that the state action presented

complies with the federal requirements of “retroces-

sion.”

The federal government, having the power to preempt

jurisdiction over the Omaha Reservation, had the power

to so define and construe the word “retrocession” as to

remove from the determination of federal assumption of

jurisdiction any question of the procedural validity or

invalidity of the state’s act of retrocession. Considering

the problems presented by any other holding, the Court

holds that the term “retrocession,” as determined by the

Secretary of Interior, was fulfilled by such action as the

state took in Resolution 37.

To the same effect is Omaha Tribe v. Village of Walthill,

D. Neb., 1971, 334 F. Supp. 823, affirmed, 8 Cir., 1972,

460 F.2d 1327, cert. denied, 1973, 409 U.S. 1107.

Finally, we consider whether the exercise of criminal

jurisdiction by the Suquamish in cases such as this one

would interfere with or frustrate the policies of the United

States. The sections of the tribal law and order code under

which Oliphant is charged do not punish conduct otherwise

privileged or authorize actions otherwise illegal under fed-

eral law. Thus no explicit conflict exists. Moreover, the

federal government has been encouraging Indian tribes to

adopt law and order codes, set up tribal courts, and exer-

cise authority over reservation lands. Goldberg, Public

Law 280: The Limits of State Jurisdiction over Reserva-

tion Indians, 22 U.C.L.A. L. Rev. 535. Tribal criminal

jurisdiction over non-Indians, as limited by the Indian Bill

of Rights, is a small but necessary part of this policy.®

Our decision in The Quechan Tribe of Indians v. Rowe, 9 Cir., 1976,

531 F.2d 408, is not contrary to our conclusions. It applies the same

principles that we apply, but finds in the tribal constitution an ex-

press limitation of the jurisdiction of tribal courts to “the trial and

punishment of members of the tribe.” It leaves open the question that

we now decide. (see p. 411 & fn. 4).

Not only does the law relating to Indian tribes support

the jurisdiction here in question; practical considerations

also support it. It may not be as true as it once was that

“(tJhey [the Indians] owe no allegiance to the States, and

receive from them no protection. Because of the local ill

feeling, the people of the States where they are found are

often their deadliest enemies.” United States v. Kagama,

1886, 118 U.S. 375, 384. But antagonism between reserva-

tion Indians and the surrounding populations does persist.

History, broken promises, cultural differences and neglect

all contribute to it. Reluctance on the part of the States to

accord to the Indians rights guaranteed to them by

treaties still exists. See, e.g., United States v. Washing-

ton, 9 Cir., 1975, 520 F.2d 676, and the concurring opinion

of Judge Burns at page 693. Part of the problem no doubt

stems from the tax exemptions that Indians enjoy. See,

e.g., McClanahan v. Arizona State Tax Commission,

supra.

This case well illustrates the need for the jurisdiction

here involved. The events occurred in Suquamish Tribal

encampment grounds, during a Tribal celebration known

as Chief Seattle Days, at a time when a number of Indians

were encamped on the Tribal grounds. Counsel for the

Tribe describe the situation as follows: (appellees’ brief,

pages 27-28):

When the Suquamish Indian Tribe planned its annual

Chief Seattle Days celebration, the Tribe knew that

thousands of people would be congregating in a small

area near the tribal traditional encampment grounds for

the celebration. A request was made of the local county

to provide law enforcement assistance. One deputy was

available for approximately one 8-hour period during the

entire weekend. The tribe also requested iaw enforce-

ment assistance from the Bureau of Indian Affairs,

Western Washington Agency. They were told that they

would have to provide their own law enforcement out of

tribal funds and with tribal personnel.

Appellant was arrested at approximately 4:30 A.M.

The only law enforcement officers available to deal with

the situation were tribal deputies. Without the exercise

of jurisdiction by the Tribe and its courts, there couid

have been no law enforcement whatsoever on the Res-

ervation during this major gathering which clearly

created a potentially dangerous situation with regard to

law enforcement. Public safety is an underpinning of a

political entity. If tribal members cannot protect them-

selves from offenders, there will be powerfv' motivation

for such tribal members to leave the Reservation,

thereby counteracting the express Congressional policy

of improving the quality of Reservation life.

Federal law is not designed to cover the range of con-

duct normally regulated by local governments. Minor of-

fenses committed by non-Indians within Indian reserva-

tions frequently go unpunished and thus unregulated.

Federal prosecutors are reluctant to institute federal

proceedings against non-Indians for minor offenses in

courts in which the dockets are already overcrowded,

where litigation will involve burdensome travel to wit-

nesses and investigative personnel, and where the case

will most probably result in a small fine or perhaps a

suspended sentence.

Prosecutors in counties adjoining Indian reservations

are reluctant to prosecute non-Indians for minor of-

fenses where limitations on state process within Indian

country may make witnesses difficult to obtain, where

the jurisdiction division between federal, state and tri-

bal governments over the offense is not clear, and where

the peace and dignity of the government affected is not

his own but that of the Indian tribe.

Traffic offenses, trespasses, violations of tribal hunt-

ing and fishing regulations, disorderly conduct and even

petty larcenies and simple assaults committed by non-

Indians go unpunished. The dignity of the tribal gov-

ernment suffers in the eyes of Indian and non-Indian

alike, and a tendency toward lawless behavior necessar-

ily follows.

The order appealed from is affirmed.

MARK DAVID OLIPHANT v. EDWARD SCHLIE,

Chief of Police of the City of Bremerton,

and THE SUQUAMISH INDIAN TRIBE, et al.

KENNEDY, Circuit Judge, Dissenting:

I cannot agree with either the premises or the conclu-

sion of the majority opinion, and therefore I respectfully

dissent.

As the majority points out, the question whether Indian

courts may exercise jurisdiction over non-Indians has re-

mained unanswered for almost 100 years. The reason is

that no federal court has had occasion to pass on the issue

since Ex parte Kenyon, 14 Fed. Cas. 353 (No. 7720 W. D.

Ark. 1878). The very absence of legal authority to support

the contentions made on behalf of the tribal court indicates

to me that the jurisdiction it attempts to exercise is novel

and unusual, and certainly inconsistent with prior prac-

tice.! While this does not necessarily make the procedure

improper, it does call for careful examination of the pur-

pose and history of tribal courts to determine whether an

assertion of jurisdiction over non-Indians is consistent

with the powers granted by Congress to tribal govern-

ments during the last 100 years. Such an examination has

persuaded me that Indian courts were not intended to

have jurisdiction over non-Indians.

It is important to focus on the precise issue in this case.

We are not considering whether Indian tribes may pass

reservation ordinances, having the force of law, governing

the conduct of the tribe’s members; they may. Colliflower

v. Garland, 342 F.2d 369, 376 (9th Cir. 1965). Nor are we

determining whether Indians have the right to exclude

from the reservation nonmembers they deem undesirable;

they have. Quechan Tribe of Indians v. Rowe, 531 F.2d

408, 411 (9th Cir. 1976). Nor is there any question of po-

tential lawbreakers’ going unpunished, a point given spe-

cial emphasis by the majority, for we have held that tribal

Certain tribal codes expressly prohibit the assumption of jurisdic-

tion by the tribal court of non-Indian offenders. See, e.g., Quechan

Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976); 17

Navajo Tribal Code $101 et seg.; Hearings on the Constitutional

Rights of thé American Indian Before the Subcommittee on Con-

stitutional Rights of the Senate Committee on the Judiciary, 87th

Cong., 2d Sess., pt. 3, at 679 (1963); id. pt. 2, at 385.

authorities have the power to apprehend violators of state

and federal law and to deliver the offenders to the appro-

priate authority.” Oriz-Barraza v. United States, 512 F.2d

1176, 1179 (9th Cir. 1975). The sole question here is

whether the accused, a non-Indian, suspected of having

committed a violation on the reservation, must answer for

the alleged offense before an Indian tribunal.

The answer to this question is not advanced by the

majority's broad assertion that Indian tribes have inherent

sovereignty presumed to exist in the absence of express

congressional intent to the contrary. The broad dictum on

Indian sovereignty pronounced by Chief Justice Marshall

in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560-61

(1832), was a response to a state’s attempted invasion of

tribal privileges that had express federal sanction. As

pointed out in a recent survey, Supreme Court cases gen-

erally rely on the notion of tribal sovereignty in determin-

ing the extent to which states can properly exercise juris-

diction where the federal government has decreed a meas-

ure of autonomy for the tribes. Martone, American In-

dian Tribal Self-Government in the Federal System: Inhe-

rent Right or Congressional License? 51 NOTRE DAME

LAWYER 600, 627 (1976). The term “sovereignty,” then, is

merely a veil used where the issue is, in fact, one of fed-

eral preemption of regulation in the field of Indian affairs.

Id. at 629-31; see McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 164, 172 (1973).

A different problem is presented when the controversy

is not one involving state encroachment of a tribal

privilege conferred by Congress, but is rather the exercise

of tribal jurisdiction over an individual. Principles of “tri-

bal sovereignty” developed in the preemption context

simply have no application here. This Court, for example,

2 By assaulting the tribal police officer, Oliphant was likely guilty of

— — several of the following federal statutes: 18 U.S.C.

§$111, 113, 1114, 1152; see Stone v. United States, 506 F.2d 561 (8th

Cir. 1974), cert. denied, 420 U.S. 978 (1975).

The power of Congress to divest tribes of any and all of their

sovereign attributes is, of course, undisputed. For example, legisla-

tion has terminated the existence of various Indian tribes. 25 U.S.C.

ch. 14.

As the Supreme Court recognized almost a century ago, only two

truly sovereign entities exist at any place within the geographical

limits of the United States: the federal government and the states of

the union. United States v. Kagama, 118 U.S. 375, 379 (1886).

did not hesitate to control the exercise of power by tribal

governments by ordering the issuance of a writ of habeas

corpus, long before Congress enacted 25 U.S.C. § 1303.

Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965).

The concept of sovereignty applicable to Indian tribes

need not include the power to prosecute nonmembers.

This power, unlike the ability to maintain law and order on

the reservation and to exclude undesirable nonmembers, is

not essential to the tribe's identity or its self-governing

status. In fact, even as to tribal members, tribal courts

only possess jurisdiction over petty offenses involving less

than six months imprisonment and $500 fine. 25 U.S.C.

§1302(7). Major crimes are prosecuted in federal court. 18

U.S.C. §1153. Therefore I do not find the doctrine of triba!

sovereignty analytically helpful in this context and instead

find it necessary to look directly at the applicable legisla-

tion to determine whether Congress intended the tribal

courts to have the power to exercise jurisdiction over

nonmembers.

As early as the turn of the ninetenth century Congress

evidenced an intention to treat offenses by Indians against

each other differently from offenses involving a non-

Indian. Offenses in the latter category, where either the

perpetrator or the victim was a non-Indian, were pros-

cribed by specific statute. Indian Trade and Intercourse

Act of March 30, 1802, ch. 13, §§4, 14, 2 Stat. 141, 143-44.

Offenses in the first category “were left to be dealt with

by each tribe for itself, according to its local customs.” Ex

parte Crow Dog, 109 U.S. 556, 571-72 (1883). This policy,

the Court explained, reflected a recognition that it would

be unfair to apply white men’s standards of justice to in-

teractions exclusively between Indians, who belonged to a

separate culture. Jd. at 571. The Court noted, moreover,

that tribal courts were an integral part of tribal self-

government:

The pledge to secure to these people. an orderly

government . necessarily implies . . . that among the

arts of civilized life, which it was the very purpose of all

these arrangements to introduce and naturalize among

them, was the highest and best of all, that of self-

government, the regulation by themselves of their own

domestic affairs, the maintenance of order and peace

among their own members by the administration of their

own laws and customs.

Id. at 568 (emphasis added).

These considerations are, of course, not applicable

where a non-Indian commits a crime on a reservation.

There is no danger, in trying a non-Indian in state or fed-

eral court, that he will be subjected to cultural standards

to which he is not accustomed. Nor is such a trial in dero-

gation of the tribe’s ability to control its own members.

In light of the above, silence in the Treaty of Point El-

liott on the subject of tribal court jurisdiction cannot be

taken as an assent to jurisdiction over all persons. Such

silence, if it imparts any information at all, must be under-

stood in light of then prevailing policies, which do not ap-

pear to have permitted jurisdiction by Indian tribes over

non-Indians.* In earlier treaties, in fact, Congress had in

certain instances specified that Indians might have juris-

diction over white men.* This practice changed for later

treaties.“ An opinion of the Attorney General, issued the

Even commentators who argue in favor of tribal court jurisdiction

over non-Indians have recognized that this would be a novel practice

and inconsistent with the views that have prevailed for over a cen-

tury in Congress and the administrative agencies in charge of Indian

affairs; M. PRICE, LAW AND THE AMERICAN INDIAN 174 (1973); see

Davis, Criminal Jurisdiction Over Indian Country in Arizona, 1

Ariz. L. REV. 62, 92-94 (1959).

Law and order regulations promulgated by the Department of the

Interior for Courts of Indian Offenses are explicitly limited to of-

fenses committed by Indians. 25 C.F.R. §11.2CA-11.87NH (1975).

These regulations, which were first promulgated in 1892, see Report

of Commissioner of Indian Affairs, T.J. Morgan, Aug. 27, 1892, re-

printed in 1 W. WASHBURN, THE AMERICAN INDIAN AND THE

UNITED STATES 574 (1973), have been adopted as tribal codes by

various Indian tribes. See, e.g., Comment to 51 of title 17 of the

Navajo Tribal Code.

5 The 1791 treaty with the Cherokees, for example, provides:

If any citizen of the United States, or other person not being an

Indian, shall settle on any of the Cherokees’ lands, such person

shall forfeit the protection of the United States, and the Cherokees

may punish him or not, as they please.

Art. VIII, 7 Stat. 39, 40 (1791). This provision, of course, raises two

separate inferences. First, the specific grant by Congress of juris-

diction over non-Indians who have settled on the reservation implies

that such jurisdiction was not assumed to exist otherwise. More im-

portantly, however, the grant of jurisdiction over certain whites

only, those who have undertaken an affirmative act to affiliate them-

selves with the reservation, raises the strong inference that other

whites were not subject to tribal jurisdiction.

U. S. DRp'r OF THE INTERIOR, FEDERAL INDIAN LAW 323 (1958)

notes that such provisions in early treaties merely followed the prac-

same year in which the Treaty of Point Elliott was signed,

describes negotiations on this point with an Indian tribe:

[The Choctaws express a wish in the treaty that Con-

gress would grant to the Choctaws the right of punish-

ing, by their own laws, “any white man” who shall come

into the nation, and infringe any of their national regula-

tions, (art. 4). But Congress did not accede to this re-

quest. On the contrary, it had made provision, by a

series of laws, for the punishment of crimes affecting

white men, committed by or on them in the Indian coun-

try, including that of the Choctaws, by the courts of the

United States. (See act of June 30, 1834, iv Stat. at

Large, p. 729, and act of June 17, 1844, v Stat. at Large

p. 680.) These Acts cover, so far as they go, all crimes

except those committed by Indian against Indian.

7 OP. ATT’y. GEN. 174, 179 (1855). The contemporary re-

fusal to grant other Indian tribes this very power over

non-Indians indicates that the federal government did not

consider such power an inherent attribute to tribal

sovereignty. Absence of such an empowering provision in

the treaty with the Suquamish raises a strong inference

that Congress did not intend them to exercise such juris-

diction.

Modern day pronouncements of both Congress and the

Interior Department reflect that view that tribal court

jurisdiction does not extend to non- Ind ms. During House

and Senate debates on the Indian Civil Rights Bill, sup-

porters of the measure consistently referred to it as limit-

ing “the power of tribal courts in dealing with tribal mem-

bers.” 7 No reference was made to the possibility that

tice accepted with respect to international treaties. Later treaties,

however, evidenced a change in this policy.

a a of Rep. Reifel, 114 Conc. REC. 9552-53 (Apr. 10,

Basically, these titles would accomplish two major objectives:

First, they would create a bill of rights for the protection of Indians

tried by tribal courts, and would improve the quality of justice ad-

ministered by those courts; and second, they would provide for the

assumption of civil and criminal jurisdiction by States over Indian

country within their borders only with the consent of the tribes af-

fected. Both of these objectives are important to our Indian citizens;

the accomplishment of each of these objectives is long overdue.

Mr. Speaker, at the present time when an Indian citizen appears

before State or Federal courts he is accorded the constitutional rights

of all Americans. But when that same Indian citizen is b t to

book before a tribal court, which has power to punish him y for

as long as 6 months in jail, he has only those rights which the tribe is

these courts might exercise jurisdiction over nonmembers.

A 1970 opinion by the Interior Department Solicitor ®

flatly concluded: “Indian tribes do not possess criminal

jurisdiction over non-Indians[;] such jurisdiction lies in

either the state or Federal Governments.” 77 I. D. 113, 115

(1970).®

willing to recognize. Many tribes have behaved responsibly in the ad-

ministration of justice on the reservations. Too often, however, tribal

courts have not acted judiciously.

And more important, Mr. Speaker, under present procedures we

have no way of telling whether a tribal court has abused its powers

because it is usually not possible for a defendant to ever raise a ques-

tion in an appeal or in a habeas corpus proceeding.

The enactment of this bill would clearly set forth certain fundamen-

tal limitations on the power of tribal courts in dealing with tribal

members:

It would prohibit double jeopardy;

It would provide for the privilege against self-incrimination;

It would require a speedy and public trial;

It would require that the accused be informed of the nature of the

offense charged, that he be confronted by witnesses against him,

and that he have compulsory process for obtaining witnesses in

his own favor;

It would prohibit excessive bail, and would provide by statute for a

maximum punishment by a tribal court of 6 months in jail or $500

fine; and

It would provide for imprisonment only after a jury trial is re-

quested by the defendant. [emphasis added.]

See also, Remarks of Sen. Ervin, 113 ConG. REc. 13,473 (May 23,

1967):

1. The historical development of a unique relationship between

the Indian communities and the United States has resulted in a

situation in which there exists, unfortunately, both the potential-

ity and the actuality of deprivation of individual rights by tribal

governments.

2. Through evidence of the denial of substantive and political

rights has been brought to the subcommittee’s attention, it is ap-

parent that an Indian citizen's rights are most seriously jeopar-

dized by the tribal government's administration of justice. These

denials occur, it is also apparent, not from malice or ill will, or

from a desire to do injustice, but from the tribal judges’ inex-

perience, lack of training, and unfamiliarity with the traditions

and forms of the American legal system. [Emphasis added.]

This memorandum was cited with approval in 78 I. D. 229,230 (1971).

While the Interior Department has subsequently withdrawn this

Memorandum, it has not published any position inconsistent there-

with. In any case, the Memorandum is strong evidence of the De-

partment’s longstanding policy in this area. See M. PRICE, LAW AND

THE AMERICAN INDIAN 173 (1973).

Accord, W. BropHy & S. ABERLE, THE INDIAN—AMERICA’S

UNFINISHED BUSINESS 50 (1966); Newman, Jurisdiction Over In-

dians and Indian Land in Washington, in 1 STUDIES IN AMERICAN

INDIAN LAW 232, 239 (R. Johnson ed 1970); Note, The Indian Bill

of Rights and the Constitutional Status of Tribal Governments, 82

The current federal scheme for dealing with offenses on

Indian land is consistent with the premise that Indian

courts do not have jurisdiction over non-Indians. The in-

teraction of sections 1152 and 1153 of title 18 of the Code

leave little doubt on this matter.

Section 1152 makes federal law, including the Assimila-

tive Crimes Act, applicable to Indian country. Exempted

from the operation of the section are two classes of indi-

viduals: (a) Indians who haye committed offenses against

the person or property of another Indian, and (b) Indians

who have committed offenses in Indian country for which

they have been punished by the local law of the tribe. This

provision can be traced back more than one hundred years

to the Act of March 27, 1854, ch. 26, § 3, 10 Stat. 270. See

Ex parte Crow Dog, supra, 109 U.S. at 558. The fact that

these two exceptions extend only to situations where the

crime was committed by Indians is alone a strong indica-

tion that Congress considered the residual jurisdiction of

tribal courts to be limited to such offenders.

This inference is greatly strengthened by section 1153.

That section provides an exception to the exception in sec-

tion 1152 by providing that where an Indian commits,

against the person or property of another Indian, one of

several major listed crimes, exclusive jurisdiction for the

offense lies in federal court. Sam v. United States, 385

F.2d 213, 214 (10th Cir. 1967); see Felicia v. United

States, 495 F.2d 353, 354 (8th cir.), cert. denied, 419 U.S.

849 (1974). It seems extremely anomalous that Congress

would provide for exclusive jurisdiction in the federal

courts for major offenses committed by Indians, but per-

mit tribal courts to try non-Indians for those same major

offenses.'1 The more reasonable inference, of course, is

HaRV. L. REV. 1343, 1356-57 (1969); see Comment, The “Right of

Tribal Self-Government” and Jurisdiction of Indian Affairs, 1970

UTAH L. REV. 291, 298.

1 J find the majority’s explanation of why this section protects Indians

from double jeopardy but not non-Indians unpersuasive. Majority

opinion, note 1. Far from being a simple oversight, it is, I think,

strong evidence that the prevalent assumption at that time on the

part of Congress was that Indian courts simply were not entitled to

try and punish non-Indians. Moreover, the fact that Congress failed

to correct any such “oversight” for more than 100 years is indicative

that the wording accurately reflects the congressional intent.

The Indian Civil Rights Act, 25 U.S.C. §1302(7), limits the penalty

that may be imposed by a tribal court to 6 months imprisonment and

that Congress withdrew jurisdiction from the tribal courts

to try major offenses only when these were committed by

one Indian against another because it knew that tribal

jurisdiction extended no further than this class of offen-

ders. 12

Section 1165 of title 18 prohibits unauthorized entry

upon Indian land for the purpose of hunting or fishing. The

legislative history of that provision indicates a clear con-

gressional understanding that tribal jurisdiction does not

extend to non-Indians. And it was precisely this lack of

power by Indian tribes to punish non-Indians that formed

the rationale for enactment of the section.

The problem confronting Indian tribes with sizable

reservations is that the United States provides no pro-

tection against trespassers comparable to the protection

it gives to Federal property as exemplified by title 18,

United States Code, section 1863 [trespass on national

forest lands]. Indian property owners should have the

same protection as other property owners. For example,

a private hunting club may keep nonmembers off its

game lands or it may issue a permit for a fee. One who

comes on such lands without permission may be prose-

cuted under State law but a non-Indian trespasser on an

Indian reservation enjoys immunity. This is by reason

a $500 fine. Section 1153, however, considerably antedates the 1968

Act, tracing its origins to the Indian Appropriation Act of 1885, c.

541, 89, 23 Stat. 385. See People v. Kagama, 118 U.S. 375 (1886).

12 18 U.S.C. §1160 provides some additional support for the proposi-

tion that Congress never assumed that Indian tribunals could exer-

cise jurisdiction over non-Indians. That section provides for compen-

sation for Indian victims of crimes committed by white men. In cer-

tain instances such compensation is to be paid by the United States

treasury. The section provides, however, that no such compensation

is to be paid where the victim “or any of the nation to which he

belongs, have sought private revenge, or have attempted to obtain

satisfaction hy any force or violence.” Although the passage discuss-

es possible action bv the Indian nacion as a whole, no mention is

made of the possibility of exacting restitution or retribution in tribal

court. While, of course, this section is not directly applicable to the

problem we are considering, I find it indicative of the congressional

attitude toward the possibility that non-Indians might be supjected

to the scrutiny of an Ind en court. This section can be traced back to

the Indian Trade and Intercourse Act of 1802, ch. 13, $4, 2 Stat. 141,

which contains the quoted language virtually verbatim. The fact that

Congress has left this portion of the section unchanged while re-

peatedly amending other parts is indicative that failure to refer. to

the possibility of tribal court justice was not inadvertent.

of the fact that Indian tribal law is enforcible against

Indians only; not against non-Indians.

Non-Indians are not subject to the jurisdiction of I-

dian courts and cannot be tried in Indian courts n

trespass charges. Further, there are no Federal laws

which can be invoked against trespassers.

The committee has considered this bill and believes

that the legislation is meritorious. The legislation will

give to the Indian tribes and to individual Indian owners

certain rights that now exist a, to others, and fills a gap

in the present law for the protection of their property.

8. REP. No. 1686, 86th Cong., 2d Sess. 2-3 (1960) (em-

phasis added). Accord, Letter from Roger Ernst, Assist-

ant Secretary of the Interior, to Senator Celler, Chairman

7 the Senate Judiciary Committee, Feb. 13, 1958, id. at 3,

I am persuaded that Indian tribal courts were not in-

tended to have jurisdiction over non-Indians. Although

Congress has never explicitly so provided, it has re-

peatedly acted in accord with this premise. Unlike the

majority, I would not require an express congressiona!

withdrawal of jurisdiction. A presumption in favor of any

inherent, general jurisdiction for tribal courts is wholly in-

consistent with the juridical relations between the federal

government and the Indian tribes that has existed for the

past 100 years. Viewing tribal courts in their historicai

and cultural context, in light of the fact that virtually no

white man appears to have been tried by an Indian tri-

bunal in the past century, congressional silence on this

point can hardly be viewed as assent.

Since I do not believe that Inc an courts have jurisdic-

tion over the appellant, I would not reach his claim that he

would be denied due process were such a trial to take

place. I would grant the writ of habeas corpus.

‘/s/

Anthony M. Kennedy

United States Circuit Judge

DISTRICT COURT—PETITION FOR WRIT OF

HABEAS CORPUS

Filed Nov. 6, 1974

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT

SEATTLE

DANIEL B. BELGARDE,

Petitioner,

vs.

RoGERS C. B. MORTON,

Secretary of Interior of the NO. C74-6835

United States; SUQUAMISH

INDIAN TRIBE; CECILIA M. PETITION FOR WRIT

Hawk, Judge, Suquamish OF HABEAS CORPUS

Tribal Court; and GRACE

DUGGAN, Judge, Suquamish

Tribal Court.

Respondents.

DANIEL B. BELGARDE, Petitioner, represented by his

attorney, PHILIP P. MALONE, petitions the Court for a

Writ of Habeas Corpus to test the legality of his detention

by the Respondents and in determining the facts to enter

an Order declaring the Respondents to have ac ed without

jurisdiction and authority over the Petitioner contrary to

law. The Petition shows the following:

I. JURISDICTION

The Court has jurisdiction of this matter in accordance

with any one or all of the following authorities:

1. U.S. Constitution, Article I, Section 9, Clause 2;

2. 28 USCA 2241(c) (Habeas Corpus):

“(1) He is in custody under or by color of the author-

ity of the United States or is committed for trial be-

fore some court thereof; or

(3) He is in custody in violation of the Constitution of

laws or treaties of the United States.”

3. 25 USCA 1303 (Indians):

“The privilege of the writ of habeas corpus shall be

available to any person, in a court of the United

States, to test the legality of his detention by order of

an Indian tribe.”

II. FACTS

1. The Petitioner is a non-Indian of 21 years of age. At

all times herein mentioned the Petitioner resided in the

unincorporated town of Suquamish, Kitsap County,

Washington.

2. The town of Suquamish, Washington is located within

the boundaries of the Port Madison Indian Reservation.

There is no community of Indians living on the Port Madi-

son Indian Reservation. The Port Madison Indian Reser-

vation consists of approximately 7276 acres of which ap-

proximately 63% thereof is owned in fee simple absolute

by non-Indians and the remainder 37% is Indian owned

lands subject to the trust status of the United States, con-

sisting mostly of unimproved acreage upon which no per-

sons reside. Residing on the reservation is an estimated

population of approximately 2928 non-Indians living in 976

dwelling units. There lives on the reservation approxi-

mately 50 members of the Suquamish Indian Tribe. Within

the reservation are numerous public highways of the State

of Washington, public schools, public utilities and other

facilities in which neither the Suquamish Indian Tribe nor

the United States has any ownership or interest. In sup-

port of the data there is attached to this Petition the

following:

Exhibit 1—Map of Port Madison Reservation

Exhibit 2—Affidavit of Martha F. George

Exhibit 3—Affidavit of Robert J. Smiley

3. The Suquamish Indian Tribe is an Indian Tribe or-

ganized under the Indian Re-organization Act of the

United States, June 18, 1934 (48 Stat. 984), which does not

authorize the Suquamish Indian Tribe to exercise any

executive, legislative or judicial power over a non-Indian

or non-Indian lands within the Port Madison Indian Res-

ervation.

4. The Suquamish Indian Tribe has a Constitution and

Bylaws adopted on Novembe 16, 1964, pursuant to a vote

only of its Indian members in which 56 voted of an alleged

Indian membership of 112. It was approved by the United

States under the authority of the 8 of Interior

pursuant to the Indian Re- organization Act of 1934,

(Supra.). In accordance with that Constitution member-

ship is limited to enrolled persons of Suquamish Indian

blood as of January 1, 1942, children born of those mem-

bers and persons having one-eighth Suquamish Indian

blood. No person of non-Indian Suquamish Indian blood or

not a child of a member can belong to the tribe, participate

in the election of its governing body, or have a vote or

determination in the passage of its laws and ordinances.

The governing body of the tribe is the Suquamish Tribal

Council.

5. In 1973, and subsequent to that time, the Suquamish

Indian Tribe and the Suquamish Tribal Council for the

first time asserted police powers of a sovereign over its

members and all persons on the Port Madison Indian Res-

ervation. It promulgated a “Law and Order Code”, the

violations or publication, of which the Petitioner was

charged, without public notice, thereof, and without rep-

resentation or consent of non-Indians and persons not

mémbers of the tribe residing on the Port Madison Indian

Reservation. The Suquamish Indian Tribe has hired per-

sons of Indian blood only as police officers, appointed

members of the tribe as judges, acquired funds and prop-

erty for the administration and enforcement of its laws

from the United States for the payment of salaries, the

purchase of property, and the arrest and incarceration of

non-Indian persons violating tribal laws on the Port Madi-

son Indian Reservation. Such police officers and judges af-

fected the arrest and incarceration of the Petitioner as

hereinafter stated.

6. The Secretary of Interior, acting through officers of

the Bureau of Indian Affairs, has made contracts with the

Suquamish Indian Tribe, supplied funds and property of

the United States, and furnished facilities and training for

the arrest by Indian police officers, the trial by tribal

judges, and the detention and imprisonment of non-Indian

persons violating tribal laws on the Port Madison Indian

Reservation contrary to the Constitution of the United

States and the laws of the Untied States as hereinafter

stated. By such actions, contracts, funds and supplies, the

Petitioner’s freedom and custody has been and is con-

tinued to be detained by orders of the Suquamish Indian

Trive.

7. In the morning hour of approximately 2:00 o'clock

A.M., Saturday morning, the 12th day of October, 1974,

while driving his vehicle, a pickup truck carrying two pas-

sengers, Mark D. Oliphant and Brad Bray, on non-Indian

land within the Port Madison Indian Reservation, in a

northerly direction on the public highway of Kitsap

County, Washington, known as “Division Street”, was

forced to stop his vehicle by police officers of the

Suquamish Indian Tribe, whose names are believed to be

Wayne DeCoteau, Allen Jones and Carl Bigman. The ve-

hicle of the Petitioner was forced to stop by one of the

police vehicles being driven by one of those police officers

immediately in front of the Petitioner’s moving vehicle

causing the Petitioner’s vehicle to unavoidably collide with

and into the side of the Indian police car. The other Indian

police car came to a stop in the rear of the Petitioner’s

vehicle.

After blocking the vehicle of the Petitioner, one of the

Indian police officers (believed to be Wayne DeCoteau)

came out of the Indian police car that drove in front of the

Petitioner’s vehicle, and standing from a distance of less

than twenty (20) feet in front of and to the left of the

Petitioner’s vehicle, pointed and fired a pistol held in his

bands directly towards the Petitioner’s vehicle and to-

wards the face and view of the Petitioner and his passen-

gers sitting in the seat of the truck, causing the Petitioner

and his passengers great fear and apprehension of bodily

injury whereby they submitted themselves to the Indian

police officers without resistence. The Petitioner and the

two passengers were immediately handcuffed by the In-

dian police officers. The Petitioner was forcefully shoved

by one officer into the side of Petitioner’s vehicle causing a

dent in the side of his vehicle and injury to his person. The

two passengers were released from custody at the scene

by the Indian police.

The State of Washington police patrol officer arrived at

the scene and a deputy sheriff of Kitsap County. Neither

of said officers charged the Petitioner with any crime for

violation of the laws of Washington and did nothing about

the arrest and detention of the Petitioner by the Indian

police. The actions of the Indian police and the authority

claimed by the Suquamish Indian Tribe over offenses of

non-Indians on the Port Madison Indian Reservation pre-

vented the State Police and County Sheriff from enforcing

the laws of the State of Washington and protecting the

rights of the Petitioner under the laws of the State of

Washington from the actions of the Indian police officers

to which the Petitioner, as a citizen of the United States

and the State of Washington, is entitled.

Thereafter in denial of the rights of the Petitioner as

hereinafter stated, to be arrested and charged for crimes

only of laws of the State of Washington and be protected

by the rights of a citizen in the process of adjudications of

those charges, the Indian police efficers did take the

Petitioner into custody to the tribal office in Suquamish

and without having informed him of the charges of his ar-

rest and detention and of any rights that he may have

either under the Constitution of the United States, the

laws of the United States, or the laws of the Suquamish

Indian Tribe, did fill out forms each entitled “Temporary

Order of Committment”, each of which forms have already

been signed prior to the above-stated incident by “Cecelia

M. Hawk” and are attached and incorporated herein as:

Exhibit Temporary Order of Coinmittment

Exhibit 5—Temporary Order of Committment

The Petitioner was thereafter transported by two of the

Indian police officers in a patrol car paid from funds of the

United States to the City of Port Angeles Jail located a

distance of approximately 60 miles from Suquamish and

without Kitsap County and the Port Madison Indian Res-

ervation. The Petitioner was incarcerated in the City of

Port Angeles jail as a prisoner of the Suquamish Indian

Tribe under a contract for holding said prisoners au-

thorized by contract with the City of Port Angeles and the

United States by the authority of the Secretary of Inter-

ior. Copies of the contracts made for the period April 15,

1974 to June 30, 1974 and July 8, 1974 are attached as:

Exhibit 6—Jail Contracts

The Petitioner was kept in the Port Angeles City jail in

Clallum County, Washington, until 1:30 P. M., Oetober 12,

1974, when bond was posted as accepted by Cecelia M.

Hawk, Judge of the Suquamish Indian Tribe, subject to

the freedom of the Petitioner further being detained

thereafter by order of the Suquamish Indian to ap-

pear for trial before the Suquamish Indian Tribal Court.

Having to inform himself of the date to appear before

the Suquamish Tribal Court, the petitioner appeared on

October 18, 1974 at 7:30 P.M. with his attorney, Philip P.

Malone, before the Suquamish Tribal Court held in the

back half of a former barber shop, measuring approxi-

mately 8’ x 10’, not physically capable of handling a fair,

free and open public trial or arraignment. Sitting at a desk

was the trial judge, Grace Duggan, who it is believed has

little knowledge, training or practice in the law. The re-

maining of the room was occupied by tribal police offi-

cers and persons prejudiced and openly hostile to the

Petitioner and non-Indians opposed to the police authority

of the Suquamish Indian Tribe over non-Indians.

Grace Duggan then read from a book, while requiring

the Petitioner to stand in from of her desk, the

Petitioner’s rights, sections from the Law and Order

Code, and the punishment for violation thereof of which

the Petitioner was charged. The Petitioner does not know

at the present time the sections of law of the Law and

Order Code of which he is charged, since such code has

neither been published or distributed to members of the

non-Indian public on the Port Madison Indian Reservation.

The Petitioner recalls from that hearing only that he has

been charged with endangering the life of another and not

wreckless driving” as contained in Exhibit 4 and with de-

struction of “public property” not “private property” as

contained in exhibit 5. The Petitioner has received no writ-

ing setting forth the charges alleged.

The Respondent, Grace Duggan, informed the

Petitioner at the hearing of his rights to an atterney, his

rights to trial now or later and the pleas that he could

make in answer to the charges that she had read. Philip P.

Malone gave notice that he was appearing as attorney for

the Petitioner and was notified that no person could ap-

pear as attorney for a defendant before the Suquamish

Tribal Court unless accepted by the “Chief Judge” and on

having paid a fee to the tribal court. Grace Duggan was

then informed by Philip P. Malone that this petition would

be filed in this Court. Court was adjourned and the

Petitioner’s freedom continues to be detained subject to

the order of Suquamish Tribal Court for a trial date un-

— — — dig ag at the present time.

is v t Grace Du is the Chief Judge“

the Suquamish Indian Tribal Court. *

III. LAW

1. The Petitioner is in the custody under or by color of

the authority of the United States in — With the

facts alle because the President of the United States

through office of the Secretary of Interior, Bureau of

Indian Affairs has by policy, money, property and direc-

tion expressed or implied, authorized and paid for the de-

tention, arrest, imprisonment and adjudication of the laws

and orders of the Suquamish Indian Tribe as to non-Indian

Petitioner, which are in violation of the Constitution of the

United States, the laws of the United States and the laws

of the State of Washington as hereinafter stated. 28 USCA

2241(c) (1).

2. The Petitioner is in the custody in violation of the

Constitution of the United States, the laws of the United

States and the Treaty of Point Elliott of 1855, (12 Stat.

927) and jurisdiction is in the Court in accordance with 28

USCA 2241(c) (2), in the following particulars:

(a) The Suquamish Indian Tribe in accordance with

Article 1 of the Treaty of Point Elliott did: “. . .cede,

relinquish, and convey to the United States all their

right, title and interest in and to the lands and country

occupied by them. Such land includes the land where

the Petitioner was arrested. In Article IX of the treaty

the tribe did: “acknowledge their dependence on the

government of the United States.” The land where the

alleged offense occurred was on land within the Port

Madison Indian Reservation no longer occupied by any

Indians of the Suquamish Indian Tribe and therefore

any power of Jurisdiction of the Suquamish Indian Tribe

terminated as to offenses occurring on that land as to

Indians and jurisdiction over such land as to offenses of

non-Indians is not in the Suquamish Indian Tribe.

(b) The United States Constitution by Article I, Sec-

tion 8, Clause 3 (Regulation of Commerce), and by Arti-

cle II, Section 2, Clause 2, (Treaty Making Power),

delegated exclusive power to the United States Con-

gress and to the President of the United States with the

advice and consent of the Senate respectively to regu-

late commerce and make treaties with Indian tribes. The

United States assumed exclusive jurisdiction of criminal

offenses occurring within an Indian reservation by the

Trade and Intercourse Act, 18 USCA 1152. The Con-

stitution of the United States is the Supreme Law of the

Land, which included the Port Madison Indian Reserva-

tion and therefore such power assumed is exclusive.

U.S. Constitution Article VI. The assumption of juris-

diction by the Suquamish Indian Tribe over offenses of

non-Indians on non-Indian land is in violation of those

constitutional provisions and laws made pursuant to that

authority on the Port Madison Indian Reservation which

have been made exclusive by the exercise of constitu-

tional powers of the Congress of the United States.

(e) On August 15, 1953, the United States Congress

acting under its power derived from the United States

Constitution authorized the State of Washington to as-

sume its exclusive jurisdiction over criminal offenses

committed by or against an Indian in Indian Country

situated within the State of Washington. Pub. Law

83-280 (67 Stat. 588 (1953) ). Responding to that law,

the State of Washington legislature did pass the

following:

Enacted Laws 1957, Ch. 240, Sec. 1, pg. 949, which reads:

“The State of Washington hereby obligates and binds itself

to assume, as hereinafter provided, criminal and civil juris-

diction over Indians and Indian territory, reservation,

country, and lands within this state in accordance with the

consent of the United States given by the act of August 15,

1953 (Pub. Law 280, 83rd Congress, Ist Session).”

_The Enacted Laws of 1957 provided that such jurisdic-

tion of the State of Washington would be assumed by proc-

lamation of the Governor of the State of Washington:

“Whenever the governor of this state shall receive from

the tribal council or other governing body of any Indian

tribe, community, band or group in this state a resolu-

tion expressing its desire that its people and lands be

subject to the criminal and civil jurisdiction of the State

of Washington to the extent authorized by federal

law. .” RCW 37.12.020.

_ On the 15th day of May, 1958, Governor Rosellini hav-

ing received such consent from the Suquamish Indian

Tribe issued a proclamation in accordance with that 1957

legislation reading:

“THE CRIMINAL AND CIVIL JURISDICTION OF

THE STATE OF WASHINGTON SHALL APPLY TO

THE SUQUAMISH INDIAN PEOPLE, THEIR RES-

ERVATION, TERRITORY, LANDS AND COUN-

TRY, AND ALL PERSONS BEING AND RESIDING

THEREIN.”

In 1963 the laws of the State of Washington of 1957,

were amended by its legislature—those laws of 1957 being

the assumption of criminal and civil jurisdiction authorized

by the Washington legislature to be assumed with consent

of Indian tribes te the governor by the governor’s procla-

mation. Such amendment did not affect the Port Madison

Indian Reservation since the Suquamish Indian Tribe had

consented and Governor Rosellini had issued a proclama-

tion in accordance with the law passed by the legislature in

1957. Supra.

The 1963 amendment renounced jurisdiction assumed

only as to tribes that had not consented to jurisdiction

prior to 1963 by not applying such jurisdiction to: “Indians

when on their tribal lands or alloted lands within an estab-

lished Indian reservation and held in trust by the United

States. . .” and as to those tribes that had not consented,

the State of Washington maintained its exclusive juris-

diction as to eight items, number (8) of which reads:

“Qperation of motor vehicles upon the public streets, al-

leys, roads and highways: Provided further, That Indian

tribes that petitioned for, were granted and became sub-

ject to state jurisdiction pursuant to this chapter on or

before March 13, 1963, shall remain subject to state civil

and criminal jurisdiction as if Chapter 36, Laws of 1963

had not been enacted.”

In August 26, 1971, Governor Daniel J. Evans, issued a

proclamation without authority of the legislature of the

State of Washington declaring Governor Rosellini’s Proc-

lamation of the 15th of May, 1958, “null and void”, and

proclaimed that any jurisdiction exercised by the State of

Washington over the Suquamish Port Madison Indian

Reservation, except as provided under Chapter 36, Laws

of 1963 (RCW 37.12.010-37.12.060), is retroceded to the

United States. Exhibit 7 attached and incorporated herein

is “Governor Evans’ Proclamation 1971.”

Since the Proclamation of Governor Evans was qualified

in his proclaimed retrocession as to the laws of 1963 and

the laws of 1963 provided that the 1957 laws passed by the

legislature remain in effect as to tribes consenting, no civil

and criminal jurisdiction was retroceded by that proclama-

tion of Governor Evans.

Further, even if the retrocession by the proclamation of

Governor Evans was law, excluded from such retrocess

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