# Appendix — Oliphant v. Suquamish Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2110%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 435 U.S. 191 ## Text ae Hae a mL War Phe ee) 8715 . eee Cour, Ug 1 ne N AUG 8 jo77 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, U. 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 i 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- ii 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 48 128 1 RELEVANT DOCKET ENTRIES MARK DAVID OLIPHANT, PETITIONER Date Proceedings 1. Aug. 23 te — * a 1973 Aug. 23 . Aug. 23 . Sept. 7 . Sept. 7 . Sept. 7 . 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 9. 10. 11. . Sept. Sept. Sept. Sept. Sept. Sept.! 10 11 11 11 11 to or . Oct. 26 . 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 Jan. 25 Jan. 25 Jan. 25 April 5 April 5 . April 30 1976 . Aug. 24 Nov. 22 3 (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 4 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 5 RELEVANT DOCKET ENTRIES DANIEL B. BELGARDE, PETITIONER 1974 28. Nov. 6 30. 31. 32. 33. Nov. Nov. Nov. Nov. 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. Jan. Jan. Jan. Jan. Jan. Jan. Feb. Aug. 6 Dec. 13 31 31 31 31 31 31 31 31 5 1 6 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 7 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 8 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: I. 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. 9 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. V. 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, 10 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) 11 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 12 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 13 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. * 14 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) 15 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 16 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 17 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: 18 “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 — — 19 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: 20 “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 21 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 22 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 23 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 — 24 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 25 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, 26 ZIONTZ, PIRTLE, MORISSET & ERNSTOFF BY BARRY D. ERNSTOFF, of Attorneys for Amicus 27 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: I. 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 28 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. V. 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- 29 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 30 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. 31 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- 32 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 33 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. X. 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 34 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 35 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 36 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 37 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. 38 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 Witness = 39 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 40 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 41 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 42 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 N (Unsigned) JUDGE 43 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. 44 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) gn Child (minor) Loughry Ada Mac Webster Lawrence Child, adopted (minor) Deam family Charles Child (minor) Lindell family M ary p Children (minors) Karrier Eddy Children (minors) Total members living on reservation 45 46 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. 47 DISTRICT COURT—AFFIDAVIT OF ROBERT J. SMILEY Filed Jan. 25, 1974 (Caption Omitted in Printing) STATE OF WASHINGTON 88 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. 48 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 49 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- 50 ‘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 51 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 52 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. rr UNITED STATES DISTRICT JUDGE 53 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. 56 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. — - — — —— — 57 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 58 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. 59 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. 60 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. 61 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- 62 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). | | 63 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- 64 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. 65 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. 66 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). 67 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2110%3A05. Public record. Not legal advice.