Amicus Brief — Oliphant v. Suquamish Tribe

1

| FILED

OCT 26 1977

“MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-5729

MARK DAVID OLIPHANT AND DANIEL B. BELGARDE,

Petitioners,

V.

THE SUQUAMISH INDIAN TRIBE, Er AL.,

Respondents.

BRIEF OF AMICI CURIAE:

The National Congress of American Indians,

The Arapahoe Tribe of Wyoming,

The Hoopa Valley Tribe of California, and

The Confederated Salish and Kootenai Tribes of Montana.

CHARLES A. HoBBs

1735 New York Avenue, N.W.

Washington, D.C. 20006

Of Counsel: Counsel for Amici Curiae

RICHARD P. CARR

WILKINSON, CRAGUN & BARKER

—

WILSON - Eres PRINTING Co. INC. - RE 7-60C2 - WASHINGTON, D.C. 20001

ofr

INDEX

STATEMENT OF INTEREST .......

QUESTION PRESENryopop

INTRODUCTION AND BACKGROUND b

ARGUMENT

1. Criminal Jurisdiction is a Necessary Incident

to Tribal Sovereignty 14

2. The Applicable Federal Treaties and Statutes

Do Not Bar the Exercise of Indian Jurisdiction

Over Non-Indians

8. Tribal Courts are Capable of Fair and Efficient

Justice

CONCLUSION

tes to —

16

21

CITATIONS

Cases:

Apodaca v. Oregon, 406 U.S. 404 (1972 17

Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th

Cir. 1969), cert. denied, 396 U.S. 1003 (1970) 10

Buster v. Wright, 135 F. 947 (8th Cir. 1905), ap-

peal dismissed, 203 U.S. 599-600 (1906) 9

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

( ———TTTPTPTPTTTTT 7, 14

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) 12

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

c 8-9, 17

Cowan v. Rosebud Sioux Tribe, 404 F. Supp. 1338

(D.S.Dak. 197555 8

Crow Dog, Ex parte, 109 U.S. 556 (1883) -............ 8

Duncan v. Louisiana, 391 U.S. 145 (1968 17

Fisher v. District Court, 424 U.S. 382 (1976) 8,9

Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th

ccc 3, 9, 17

Jim v. CIT Financial Services Corp., 87 N. M. 362,

88 en 20

Kennerly v. District Court, 400 U.S. 423 (1971) 9

Kenyon, Ex parte, 14 F. Cas. 853 (C.C.W.D. Ark.

r 6, 14

King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975) 17

McClanahan v. Arizona State Tax Comm’n, 411

e x. 8, 9, 12

Mescalero Apache Tribe v. Jones, 411 U.S. 145

( eT or 9

Morris v. Hitchcock, 194 U.S. 384 (190) 10

Morton v. Mancari, 417 U.S. 535 (19742 4,8

Northern Cheyenne Tribe v. Hollowbreast, 425 U.S.

r FE SCR SS Nn 12

Oliphant v. Schlie, 544 F.2d 1007 (9th Cir. 1976) ....passim

O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d

1500 GO Ge 2000) 20

Ortiz-Barraza V. United States, 512 F.2d 1176 (9th

ee RG ci St 8, 10

Quechan Tribe of Indians v. Rowe, 531 F.2d 408

CT Te I x 21

CITATIONS—Continued

Page

Santa Rosa Band of Indians v. Kings County. 532

F.2d 655 (9th Cir. 1975), cert. denied, 429 U.S.

1088 (1977) r 9

Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974) 14

United States v. Kagama, 118 U.S. 375 (1886) ...... 3, 7-8

United States v. Mazurie, 419 U.S. 544 (1975) 3, 8, 9, 17

United States v. Quiver, 241 U.S. 602 (1916) 9

United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506 (1940) 9

United States v. Winans, 198 U.S. 371 (1905) 12

Wakefield v. Little Light, 276 Md. 333, 347 A. 2d

RE ̃ ˙vrE! —T——— 20

Williams v. Florida, 399 U.S. 78 (1970) 17

Williams v. Lee, 358 U.S. 217 (195999 3, 8, 9

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) 7

Treaties and Statutes:

Agreement With Indians Residing on Port Madison

Indian Reservation, 33 Stat. 1078 (1905) 13

Treaty of Point Elliott, 12 Stat. 927 (18599 13

Treaty With the Willamette Indians, 10 Stat. 1143

rr 21

General Allotment Act, 24 Stat. 388 (1887), 25

FF . 3

General Crimes Act, 18 U.S.C. § 115ꝶũꝶ 22 passim

Indian Civil Rights Act of 1968, 82 Stat. 77, 25

Re. passim

Indian Reorganization Act of 1934, 48 Stat. 984,

RE TO FF f° pp . eaaeenee, passim

Indian Self-Determination and Education Assist-

ance Act of 1975, 88 Stat. 2203, 25 U.S.C. er

et seq. sad 5,

Major Crimes Act, 18 U.S.C. 6 1188

Lee cccccccte nse es

87 Stat. 770 (1973 8

R. S. § 2146, 18 Stat. 318 (1875) P 1

25 U.S.C. § 174 note, 88 Stat. 1910 (1975) 1

om 0

IV

CITATIONS—Continued

Page

St ee eae ee 9

iir e 4

Sr . ower 20

25 U.S.C. § 1821, as amended· 13

Miscellaneous:

American Indian Lawyer Training Program, /n-

dian Self-Determination and the Role of Tribal

RACERS x = A a a 17, 20

American Indian Policy Review Commission, Final

Report (Comm. Print 1977) -....................-..-... 18

American Indian Policy Review Commission, Re-

port of Task Force Two on Tribal Government

Sr 19

American Indian Policy Review Commission, Re-

port of Task Force Four on Federal, State, and

Tribal Jurisdiction (Comm. Print 1976) 11, 21

F. Cohen, Handbook of Federal Indian Law (1972

r 3 21

W. Hagan, Indian Police and Judges (1966) 17

National American Indian Court Judges Associa-

tion, Inc., Justice and the American Indian

“Yes,” Equal? “Probably Not,” 62 A.B.A.J. 1002

Ky“ͤͤ«c A SE eee sh NS 18

Clinton, Criminal Jurisdiction Over Indian Lands:

A Journey Through a Jurisdictional Maze, 18

. S*% 3 Ff) Bees Cee ae 19

Collins, Johnson, and Perkins: American Indian

Courts and Tribal Self-Government, 63 A. B. A. J.

. dias 18

Ir 10

H. R. Rep. No. 474, 23d Cong., Ist Sess. (1834) 14

55 Interior Dec. 14 (1988605. 3, 9, 12

23 Op. Atty. Gen. 214 (1900 3 3

IL .. 5

L . 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-5729

MARK DAVID OLIPHANT AND DANIEL B. BELGARDE,

Petitioners,

V.

THE SUQUAMISH INDIAN TRIBE, ET AL.,

Respondents.

BRIEF OF AMICI CURIAE:

The National Congress of American Indians,

The Arapahoe Tribe of Wyoming,

The Hoopa Valley Tribe of California, and

The Confederated Salish end Kootenai Tribes of Montana.

STATEMENT OF INTEREST

The tribal entities filing this brief are the ARAPAHOE

TRIBE of the Wind River Reservation, Wyoming; the

HoorA VALLEY TRIBE of California; and the CONFED-

ERATED SALISH AND KOOTENAI TRIBES of the Flathead

Reservation, Montana. They are federally recognized In-

dian tribes which reside upon and govern their respective

reservations. The NATIONAL CONGRESS OF AMERICAN IN-

DIANS is a national association of some 147 Indian tribes

organized to represent the interest of American Indians.

Petitioners and respondents have consented to the filing of

this brief, as indicated by appropriate letters of consent

filed with the Court.

QUESTION PRESENTED

Petitioner Oliphant was involved in a fight with another

person on tribal land at an annual tribal celebration.

When a tribal officer intervened, Oliphant struck him and

was charged under the tribal code with assaulting an offi-

cer. Pet. Br. 14. Petitioner Belgarde allegedly was rac-

ing his pickup truck on the streets of the town of

Suquamish for several hours, with tribal police in hot

pursuit. The chase ended with Belgarde’s truck colliding

with a tribal police car. He was charged under the tribal

code with recklessly endangering another person, and in-

juring public property. Jd. at 16-17. Both petitioners are

non-Indians.

In both instances, the United States District Court be-

low found that the tribal court had jurisdiction to punish

petitioners. Both cases were appealed to the Ninth Circuit,

which affirmed the tribal court’s jurisdiction as to Oli-

phant. Oliphant v. Schlie, 544 F.2d 1007 (1976).

The question is whether an Indian tribe has retained

the limited sovereign jurisdiction to impose minor punish-

ment on a white person who breaches the peace of an

Indian reservation in violation of tribal ordinances.

INTRODUCTION AND BACKGROUND

We submit that the Court’s answer to the question here

presented will determine whether tribal communities can

have effective protection from minor crimes and breaches

of the peace. State and federal law enforcement authori-

ties have little interest in prosecuting minor infractions on

Indian reservations. Tribes have learned from long experi-

ence that they will not receive adequate protection from

minor infractions unless they furnish it themselves.

A large number of modern Indian tribes now have law

and order systems (including codes, courts, judges, police

and jails) which function well and which are constantly

improving. See pages 17-21, infra. To deny their jurisdic-

tion over whites who come onto their reservations is to

leave a large gap in the authority which Indians need to

protect the peace of reservation cornmunities.

We note that this case only involves tribal criminal

jurisdiction over non-Indians. Tribal civil jurisdiction over

non-Indians is clear, at least when coupled with a tribal

interest.

When white men first came to America, they treated

with the Indians as independent, sovereign nations, recog-

nizing their superior strength and numbers. Later, as the

balance in numbers reversed, the Indians were confined to

reservations, to free up their vast hunting grounds for the

white men’s farms and ranches. Yet, on those reserva-

tions, Indians remained sovereign, subject only to the

power of Congress when Congress chose to exercise it.”

In 1887, Congress declared that Indian reservations

should be broken up into individual holdings, in order that

the tribesmen might learn the benefits of private property

and toil for self-gain, as their white neighbors.’ This

policy, known as the allotment policy, was a failure. In-

stead of adopting the white man’s competitive, acquisitive

ways, the Indian clung to his culture, often selling his

allotment and becoming landless in the bargain. The allot-

1 See, e.g., United States v. Mazurie, 419 U.S. 544, 557 (1975);

Williams v. Lee, 358 U.S. 217 (1959) ; Iron Crow v. Oglala Sioux

Tribe, 231 F.2d 89 (8th Cir. 1956) (tribe may tax non-Indians) ;

Cowan v. Rosebud Sioux Tribe, 404 F. Supp. 1338 (D.S.Dak.

—— 23 Op. Atty. Gen. 214, 218 (1900); 55 Interior Dec. 14, 19

United States v. Kagama, 118 U.S. 375, 381-82 (1886).

— Allotment Act, 24 Stat. 388 (1887), 25 U.S.C. § 331

seq.

4

ment policy, by distributing the tribal property and bring-

ing whites onto reservations, worked to impair the capabil-

ity of tribes to govern themselves—which, indeed, was the

very purpose of this policy.

In 1934, Congress, advised of the appalling social condi-

tion to which tribes and reservations had sunk, and of the

crippling loss of tribal lands, enacted the Indian Reorgani-

zation Act.“ Such tribal land as still remained unallotted

was forbidden to be allotted further, and the right of

allottees to sell their land was restricted. Tribes were

strengthened as self-governing institutions and encouraged

to adopt constitutions and to form business corporations to

that end. The Secretary of the Interior was authorized

to acquire land for Indians."

Under the Indian Reorganization Act, tribes slowly be-

gan to reacquire the strength and land base necessary for

effective self-government. This in turn brought them into

greater contact with neighboring white communities. The

friction created by this interplay, and perhaps local

jealousy over the federal protection and privileges enjoyed

by Indians, led Congress to its next major policy determi-

nation. This was to terminate federal protection of tribes,

and let their future development be a part of state struc-

tures and government. The new policy was declared in

1953, and thereafter a handful of tribes were actually

terminated.’

But the termination policy, like the allotment policy,

was a failure, and it was quietly abandoned after a decade

* 48 Stat. 984, 25 U.S.C. § 461 et seg.

See Morton v. Mancari, 417 U.S. 536, 542-43 (1974).

H. Con. Res. 108, 67 Stat. B132.

Six Indian groups were terminated in 1954 (e.g., Menominee,

25 U.S.C. § 891), two more in 1956, two more in 1958, and one in

1962. There have been no terminations since then, and in fact the

Menominees have been restored. 87 Stat. 770 (1973).

in favor of a return to a policy of federal assistance, cou-

pled with renewed federal encouragement of tribal devel-

opment of economic and self-government resources. Dozens

of programs for tribal dvelopment were instituted by the

Bureau of Indian Affairs, many of which were successful.

In 1970, long after the termination policy had been in-

formally repudiated, President Nixon delivered a major

message to Congress on Indian policy, remarkable for its

scope and understanding. He declared:

“The time has come to break decisively with the past

and to create the conditions for a new era in which

the Indian future is determined by Indian acts and

Indian decisions.” *

He stated that forced termination of the Indians’ federal

relationship was wrong, as was the opposite extreme,

excessive dependence upon the federal government. The

correct path, he said, was between these two extremes,

i. e., a policy of “self-determination.”

In 1975 Congress enacted the Indian Self-Determination

and Education Assistance Act,® carrying forward the

policy declared by President Nixon.

Today, as a result of the process begun through the

Indian Reorganization Act of 1934, and reaffirmed by

President Nixon in 1970 and the Congress in 1975, many

Indian reservations are effective, modern, self-governing

communities, operating much like counties and municipali-

ties—except that they are under the federal structure,

rather than the state structure. Over 100 tribes now have

their own law and order systems (i.e., legal codes, courts,

judges, police, and jails). As far as criminal matters are

* 6 Pres. Doc. 894 (1970).

* 88 Stat. 2203, 25 U.S.C. § 450 et seq.

10 See description by American Indian Policy Review Commission,

pages 18-19, infra.

concerned, Congress has provided that these systems may

not impose any punishment greater than a $500 fine and

six months in jail, and persons who appear before the

court are guaranteed most of the rights provided to non-

Indians under the U.S. Constitution.”

In the entire history of the relationship between white

persons and Indians, there has previously been only one

reported court case involving a tribe’s punishment of a

white person for breach of tribal law.“ Prior to 1887

this is not surprising, because there was little interming-

ling of whites and Indians on reservations, except for

those whites who were assimilated into the Indian com-

munities, usually through intermarriage. Indeed, the

Kenyon case involved such a person. See page 14, infra.

Between 1887 and 1934, many tribal governments were

functioning poorly or worse, and it is not surprising

that no cases arose during that period.

It seems a little surprising that no case arose during

the period 1934 to 1953, when many tribal governments

were revived under the Indian Reorganization Act, but

perhaps this was because newly emerging tribal govern-

ments were unwilling to display the aggressiveness neces-

sary to exercise criminal jurisdiction over members of

the dominant society.

But after the termination period was over (1953-

1962) and modern tribal governments, staffed by more

educated and self-confident Indians, began to mature, it

was inevitable that the question of criminal jurisdiction

over non-Indians would arise, and finally, in the instant

case, it has.

Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1301

et seq.

1 Ex parte Kenyon, 14 F. Cas. 363 (C.C.W.D. Ark. 1878) (No.

7720).

7

The issue of Indian eriminal jurisdietion might have

arisen on, say, the Quinault Reservation in Washington

State, which has an area of 190,000 acres (entirely rural),

a population of about 1,100 Indians and 200 non-Indians,

and a comparatively well-equipped law and order system.

Or, it might have arisen on any of a number of other

reservations where the population is predominantly In-

dian and where there are modern law and order sys-

tems. The fact that the matter of tribal jurisdiction over

non-Indians has arisen on an Indian reservation where

the non-Indians far outnumber Indians should not cloud

the issue. The issue should not turn on which race pre-

dominates, but on whether Congress has diminished the

tribe’s original sovereignty by terminating or curtailing

tribal criminal jurisdiction over non-Indians who breach

the peace of the reservation.

We realize that this issue is not simple, nor the an-

swer clear at first glance. However, we believe that the

answer that emerges from research, reason, and ap-

preciation of history is that Congress has not acted with

the requisite affirmative action to terminate such juris-

diction.

ARGUMENT

1. Criminal Jurisdiction is a Necessary Incident to

Tribal Sovereignty.

In a long line of decisions, the Court has consistently

affirmed the dual principles that Indian tribes possess

attributes of ternal sovereignty and that they have full

jurisdiction over matters essential to that sovereignty.

Chief Justice Marshall, in the seminal cases of Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1881) and

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832),

referred to Indian tribes as “domestic dependent na-

tions” and “distinct, independent political communities.”

The Court in United States v. Kagama, 118 U.S. 375,

381-82 (1886) described Indians as “semi-independent,”

“a separate people, with power of regulating. . . internal

and social relations.” More recently, after tracing the

evolution and modification of the Indian sovereignty doc-

trine since Worcester, the Court concluded that Indians

remain a semi-independent people, vested with many

attributes of sovereignty. McClanahan v. Arizona State

Tax Commission, 411 U.S. 164, 168-73 (1973). That

sovereignty extends not only over tribal members but

also over all tribal territory.”

The touchstone for residual tribual sovereignty has

been the concepts of self-governance and maintenance of

essential tribal relations. Williams v. Lee, 358 U.S. 217,

219-220 (1959). Courts have recognized as incidents

of Indian sovereignty the authority to adopt laws and

establish courts for their enforcement,’ to regulate the

18 United States v. Mazurie, 419 U.S. 544, 557 (1975). See also

Morton v. Mancari, 417 U.S. 535, 554 (1974) (“quasi-sovereign”

tribal entities) ; Williams v. Lee, 358 U.S. 217, 219 (1959) (basic

sovereignty principles expressed in Worcester remain applicable).

Cf. Indian Self-Determination and Education Assistance Act of

1975, 88 Stat. 2203, 25 U.S.C. § 450 et seq.

1% The Court recently asserted :

“In litigation between Indians and non-Indians arising out

of conduct on an Indian reservation, resolution of conflicts be-

tween the jurisdiction of state and tribal courts has depended,

absent a governing Act of Congress, on ‘whether the state action

infringed on the right of reservation Indians to make their

own laws and be ruled by them.’”

Fisher v. District Court, 424 U.S. 382, 386 (1976) (citing Williams

v. Lee, supra).

Although the present case does not, strictly speaking, involve a

conflict between tribe and state, its ultimate resolution will require

considering to what extent tribal, state and federal courts have juris-

diction on reservations, exclusively or concurrently.

1% Fr Parte Crow Dog, 109 U.S. 556, 568 (1883); Ortiz-Barraza

v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975) (power to

create and administer criminal justice system inherent in Indian

sovereignty); Collifower v. Garland, 342 F.2d 369, 376 (9th Cir.

domestic relations of tribal members,“ to safeguard and

develop tribal property,“ to tax inhabitants and persons

transacting business on the reservation,“ to provide serv-

ices to members on the reservation,“ and to be immune

from suit.“ See generally Powers of Indian Tribes, 55

Interior Dec. 14 (1934); 25 U.S.C. § 476 (1970).

In light of these holdings on Indian sovereignty and

its attributes, the initial inquiry to be made here is

whether an Indian tribe’s ability to enforce its criminal

laws against non-Indians is fundamental to its internal

self-government. We submit that criminal authority (con-

current where appropriate) over all individuals on the

reservation, Indian and non-Indian, within the limits

of course of the Indian Civil Rights Act, is a necessary

attribute of tribal self-government and consistent with

previous holdings on Indian criminal jurisdiction.

With the arguable exception of major erimes,“ Indian

1965); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89, 94 (8th Cir.

1956).

Indian jurisdiction in civil matters affecting the rights of the

tribe has repeatedly been upheld by the Court. F. g., United States

v. Mazurie, supra; McClanahan v. Arizona State Tax Commission,

supra; Kennerly v. District Court, 400 U.S. 423 (1971); Williams

v. Lee, supra.

1% Fisher v. District Court, 424 U.S. 382, 386-89 (1976) ; United

States v. Quiver, 241 U.S. 602, 603-05 (1916).

„Santa Rosa Band of Indians v. Kings County, 532 F.2d 655,

663-64 (9th Cir. 1975), cert. denied, 429 U.S. 1038 (1977).

18 Jron Crow v. Oglala Sioux Tribe, supra, F.2d at 98-99;

Buster v. Wright, 186 F. 947, 950 (8th Cir. 190 -<ppeal dismissed,

203 U.S. 599-600 (1906).

1% Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-53 (1973).

United States v. United States Fidelity & Guaranty Co., 309

U.S. 506, 512-13 (1940).

21 18 U.S.C. § 1188.

10

tribes indisputably have authority to enact and enforce

laws governing their own members.” It requires no

stretching of legal principles to state that similar crimi-

nal jurisdiction is necessary over non-Indians present on

the Indian reservation—whether they be trespassers,

visitors, or residents.“ To maintain peace on the reserva-

tion and stability in tribal relations, an Indian tribe

must be able to proscribe offensive conduct on its reser-

vation and to enforce these proscriptions through the

powers of arrest, prosecution and punishment. “{T]he

power to regulate is only meaningful when combined

with the power to enforce.” **

22 The General Crimes Act, 18 U.S.C. § 1152, recognizes this gen-

eral Indian authority by expressly excepting from federal jurisdic-

tion crimes by Indians against Indians, and crimes by Indians

against non-Indians where the Indian offender is punished by the

tribe.

28 Cf. Morris v. Hitchcock, 194 U.S. 384, 389 (1904) (Indian au-

thority to control intruders on reservation); Arizona ex rel. Merrill

v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003

(1970).

*4 Ortiz-Barraza v. United States, 512 F.2d 1176, 1180 (9th Cir.

1975). See also Memorandum from Commissioner of Indian Affairs

to Deputy Solicitor, Department of Interior, September 3, 1976, re-

printed in 1976 Indian L. Rep. i-8.

A tribal chairman has stated:

“This question [of tribal jurisdiction] arises with reference

to violations of the fish, game and recreation code, traffic and

boating offenses, criminal actions, repossessions of personal

property, removing property from the reservation, whether it

be plants, minerals, gems, rocks or personal property .. .

[, djesecrating or interfering with tribal graveyards, both

historic and prehistoric in the non-Indian sense, and the dese-

cration or interference with areas of the reservation having

substantial religious significance to the tribe.

“It is our position that every person entering the exterior

boundaries of the reservation has consented to the jurisdiction

is

11

To say that tribes may control breaches of the peace by

binding over offenders to state or federal authorities is

not a viable answer. If that is their only criminal power

over non-Indians, it casts Indian police and tribal courts in

the role of agents and spectators, rather than law enforc-

ers. It subjects Indian authorities to the risk of lawsuits

for false arrest if they err in handling offenders, however

innocently. And, it results in Indians and non-Indians

being subject to different standards of conduct and culp-

ability.

Perhaps most important and problematic, a potential

non-Indian offender would be emboldened by the knowl-

edge that the Indian tribe—the party most concerned

with the misconduct and generally the only party de-

sirous of doing something about it—would lack the direct

means to punish him. In essence, Indian tribes would

be at the mercy of distant, normally unconcerned state

and federal authorities for law enforcement assistance

and effectuation.“ Under these circumstances,

“The dignity of the tribal government [would suffer]

in the eyes of Indian and non-Indian alike, and a

tendency toward lawless behavior [would] neces-

sarily {follow].” **

Given this significant relationship between tribal

sovereignty and criminal jurisdiction, the Court should

recognize the tribe’s power to enforce its laws against

of the tribe, and its courts, and the tribe has the jurisdiction

because of its sovereignty to take such action as is necessary to

enforce its laws.”

Final Report of Task Force Four to American Indian Policy Review

Commission (AIPRC) on Federal, State, and Tribal Jurisdiction 99

(Comm. Print 1976) (testimony of Mr. Buck Kitcheyan, Chairman,

2 Apache Tribe). For background on the Al PRC, see note

38, infra.

20 Oliphant v. Schlie, 544 F.2d at 1013-14; see also Final Report

of Task Force Four to AIPRC, supra note 24, at 37-39.

0 Oliphant v. Schlie, 544 F. ad at 1014.

12

non-Indians as an essential, inherent part of residual

Indian sovereignty.

2. The Applicable Federal Treaties and Statutes Do Not

Bar the Exercise of Indian Jurisdiction Over Non-

Indians.

In recent years, tribal sovereignty has served as a

convenient starting point for the Court’s analysis of

jurisdictional issues—not as a final solution to the prob-

lem. Courts have come to rely less on residual or

“platonic” notions of sovereignty than on relevant trea-

ties and statutes for resolving questions of tribal juris-

diction. The Court referred to this trend in McClanahan

v. Arizona State Tax Commission, supra:

“The Indian sovereignty doctrine is relevant . . . not

because it provides a definitive resolution of the issues

in this suit, but because it provides a backdrop

against which the applicable treaties and federal

statutes must be read.“

In analyzing Indian treaties and statutes, certain de-

fined canons of construction must be recalled: (1) In-

dian treaties and laws are to be liberally construed, with

doubts and ambiguities resolved in favor of the Indians;

(2) Indian treaties are to be interpreted as the Indians

would have understood them; and (3) Indian treaties

are not generally grants of rights to tribes, but grants

of rights from indian tribes.”

27411 U.S. at 172. Cf. Powers of Indian Tribes, 55 Interior

Dec. 14, 57 (1934):

The question of tribal criminal jurisdiction [must be] dealt

with . .. by asking, first, what the original sovereign powers

of the tribes were, and then, how far and in what respects these

powers have been limited.” Id.

20 F. g., Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649,

655 n.7 (1976).

2 F. g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970).

%° F. g., United States v. Winans, 198 U.S. 371, 381 (1905).

13

The Court of Appeals below started with the proposi-

tion that the tribe originally had criminal jurisdiction

over non-Indians on the reservation and still possessed it

unless it had been terminated by Congress. The court

held that jurisdiction had never been terminated.

The court found that the two treaties between the United

States and the Suquamish Indians were silent on the

tribe’s power to try non-Indian criminals," and that three

allegedly relevant statutes—18 U.S.C. § 1152 (sometimes

called the General Crimes Act), 25 U.S.C. § 1302 (In-

dian Civil Rights Act), and 25 U.S.C. § 1321 (Public

Law 280), as amended—did not operate to deprive In-

dian tribes of criminal jurisdiction over non-Indians.“

The court accordingly ruled that original Indian criminal

jurisdiction within the reservation had not been ex-

tinguished. We comment briefly on the General Crimes

Act, 18 U.S.C. § 1152, which petitioners claim preempts

tribal jurisdiction over non-Indians, and which seems to

be the key statute in this case.

18 U.S.C. § 1152 provides:

“Except as otherwise expressly provided by law,

the general laws of the United States as to the pun-

ishment of offenses committed in any place within

the sole and exclusive jurisdiction of the United

States, except the District of Columbia, shall extend

to the Indian country.

“This section shall not extend to offenses com-

mitted by one Indian against the person or property

of another Indian, nor to any Indian committing any

offense in the Indian country who has been punished

by the local law of the tribe, or to any case where, by

treaty stipulations, the exclusive jurisdiction over

1 Treaty of Point Elliott, 12 Stat. 927 (1859); Agreement With

Indians Residing on Port Madison Indian Reservation, 33 Stat. 1078

(1905) ; see Oliphant v. Schlie, 544 F.2d at 1010.

32 Oliphant v. Schlie, 544 F.2d at 1010-12.

14

such offenses is or may be secured to the Indian

tribes respectively.”

There is nothing on the face of this statute that ousts

tribal criminal jurisdiction over non-Indians. In view

of the applicable canons of construction, only an express

ouster, or one clearly and necessarily implied, would be

effective to achieve that drastic result. Given its natural

and proper meaning, the statute merely adds concurrent

federal jurisdiction to the already extant Indian juris-

diction over offenses committed in Indian country. In

view of the de facto lack of any adequate tribal law and

order systems on Indian reservations, it was found neces-

sary in the early 1800’s to extend federal power onto

reservations and to delineate areas of exclusive Indian

jurisdiction and concurrent Indian-federal jurisdiction.

This interpretation of 18 U.S.C. § 1152 is supported by

legislative history and by case law of the period.“

The leading case to the contrary, Ex parte Kenyon,

14 F.Cas. 353 (C.C.W.D. Ark. 1878) (No. 7720), is not

sound authority against Indian jurisdiction. Kenyon’s

actual holding is that an Indian tribe in the Indian Ter-

ritory lacked criminal jurisdiction over a white man who

had married into the tribe, and later when his Indian

wife died, moved to Kansas to live and there sold his

deceased wife’s horse, supposedly a crime. The court

held that because the crime, if any, was committed in

Kansas, and hence beyond the territorial jurisdiction of

the tribal court, the tribal court lacked subject matter

jurisdiction.“ The federal court added, as an independent

second reason for the tribal court’s lack of jurisdiction,

that at the time of the crime, the defendant had aban-

doned his Indian ties. For this holding the court gave

33 H.R. Rep. No. 474, 23d Cong., Ist Sess. 13, 36-37, 98 (1834);

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

% Contra, Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974), holding

that the Yakima tribal court had jurisdiction to punish members who

violated tribal fishing laws outside the reservation.

15

no rationale, but merely cited R.S. § 2146, on the bare,

uncritical assumption that a tribal court has jurisdiction

only over Indians. Without an explanation of what (and

whether) the court thought about the concurrent juris-

diction argument and about the canons of construction,

which it apparently ignored, the case can have little or

no weighi for the proposition that there is no concur-

rent jurisdiction.

In contrast, Oliphant’s and Belgarde’s offenses here

were committed upon the reservation, and breached the

peace and welfare of the tribe governing the reserva-

tion.

There are good legal, moral and practical reasons why

18 U.S.C. § 1152 should be ruled concurrent, with the

tribal authorities therefore able to prosecute and punish

these non-Indian offenders. On its face, 18 U.S.C. § 1152

shows that Congress assumed that at lease some criminal

jurisdiction is concurrent; that is, Congress must have

assumed that where an Indian commits a crime against

a white person, both tribal and federal courts would

have jurisdiction. This is clear because § 1152 cancels

the federal jurisdiction where the Indian “has been

punished by the local law of the tribe.” Obviously, Con-

gress would not have canceled jurisdiction that it thought

did not exist in the first place.

We will grant that Congress also apparently assumed

that tribes would not have jurisdiction over white crimi-

nals. Otherwise, it undoubtedly would have given the

non-Indian wrongdoer the same double jeopardy protec-

tion as the Indian wrongdoer. But this was a mistaken

assumption by Congress, and not a substitute for lan-

guage expressly ousting preexisting tribal jurisdiction,

an ouster which could not take place without such lan-

guage.

When Congress enacted the General Crimes Act, 18

U.S.C. § 1152, it was not its purpose to displace one

16

criminal justice system with another. Had that been

its purpose, there surely would have been some evidence

of it. Essentially, the statute was designed to fill a

vacuum. Whether Congress would have terminated tribal

jurisdiction over non-Indians, if someone raised the issue,

will never be known. That would have been easy to do,

if Congress intended to do it. But apparently the issue

was not raised, and Congress was silent on the point.

Surely such silence should not be construed to oust the

jurisdiction which tribes require, and are able to assert,

to maintain the peace and welfare of reservation com-

munities.

3. Tribal Courts Are Capable of Fair and Efficient Justice.

An underlying assumption of petitioners’ claims is

that they cannot obtain justice within the Indian tribal

court system. For example, they assert that, as non-

Indians, they had no voice in enacting the tribal ordi-

nances under which they were arrested; that non-Indians

would be excluded from the jury panels; and that due

process and judicial competence are lacking in the tribal

court system. We respond that petitioners’ rights are

adequately protected by the Indian Civil Rights Act of

1968, which incorporates most of the Bill of Rights into

Indian judicial proceedings.

As previously indicated, the Indian Civil Rights Act

provides protections to parties in tribal court proceed-

ings commensurate with constitutional standards. The

Act sets out prohibitions against illegal searches and

seizures; against placing defendants in double jeopardy;

against self-incrimination; against denial of a speedy,

fair, and public trial, including the right of halle sew

tion and assistance of counsel; against excessive bail

and cruel and unusual punishment; against denial of

equal protection and deprivation of due process; and

against denial of trial by jury, consisting of not less

17

than six persons. 25 U.S.C. §§ 1302 (2), (3), (4), (6),

(7), (8), (10). Furthermore, eriminal penalties are lim-

ited to six months imprisonment and/or $500 fine, effec-

tively restricting tribal courts’ power to minor sanctions.

In short, basic Anglo-American values are to be ap-

plied, with few exceptions, such as the right to free coun-

sel—and those exceptions only to accommodate practical

and cultural tribal needs.“

A second factor serving to undercut petitioners’ ob-

jections is the improving quality of tribal courts and

Indian justice. Modern tribal courts (of which today

there are around 128) have their origin in the Courts

of Indian Offenses, created originally in the late 1800’s

by the Bureau of Indian Affairs and formalized under

the Indian Reorganization Act of 1934.“ While Indian

tribal courts vary greatly in jurisdiction, operation, and

quality, it may accurately be said that, “Indian tribal

courts throughout the United States are in a dynamic

These exceptions, in view of the limitation of tribal courts to

minor sanctions, pose no constitutional problems. This Court has

previously recognized differences between constitutional and pro-

cedural requirements for federal and state courts. F.., Apodaca v.

Oregon, 406 U.S. 404 (1972) (unanimity requirement for juries) ;

Williams v. Florida, 399 U.S. 78 (1970) (12-man federal jury versus

six-man state jury). The Court has also qualified the right to jury

trial for petty crimes or offenses. Duncan v. Louisiana, 391 U.S.

145 (1968). Cf. King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975)

(applicability of trial by jury in territory of Samoa).

Here, of course, it is premature for petitioners to contend that

their rights to a fair trial and to due process will be violated. The

Suquamish Indian Tribe may include non-Indians in the venire.

The objection on grounds of non-participation in the drafting of

the tribal code has already been rejected by this Court. United

States v. Mazurie, supra, 419 U.S. at 557-58.

See generally Colliflower v. Garland, 342 F.2d 369, 372-74 (9th

Cir. 1965) (history of Indian tribal courts); Jron Crow v. Oglala

Sioux Tribe, 231 F.2d 89, 94-98 (8th Cir. 1956) (same): American

Indian Lawyer Training Program, Indian Self-Determination and

the Role of Tribal Courts 13-35 (1977); W. Hagan, Indian Police

and Judges (1966).

18

stage of growth, both in numbers and importance.”

There is not a great deal of current or comprehensive

information on modern tribal courts and criminal jus-

tice systems. An excellent summary statement is con-

tained in the Final Report of the American Indian Policy

Review Commission :**

“In addition to preexisting tribal systems and 25

CFR systems, many tribal governments have created

justice systems in the context of their inherent sov-

ereignty, and under the auspices of the Indian Re-

organization Act. In 1976, there were 117 operative

tribal courts in Indian country; this represents an in-

crease of 32 courts since 1973 when there were

85. In 1973, Indian tribal courts handled approxi-

mately 70,000 cases; although this caseload has in-

creased, no actual current figures are available

“The 117 Indian justice systems vary considerably

from one another in both design and effectiveness.

Like their non-Indian counterparts, Indian court

* Collins, Johnson, and Perkins, American Indian Courts and

Tribal Self-Government, 68 A.B.AJ. 808, 811 (1977); see also

Brakel, American Indian Tribal Courts: Separate? “Yes,” Equal?

“Probably Not“, 62 A. B. A. J. 1002 (1976).

„American Indian Policy Review Commission, Final Report,

vol. 1, at 167-68 (Comm. Print 1977).

The American Indian Policy Review Commission was established

by Public Law No. 93-580, 88 Stat. 1910 (1975), “to conduct a com-

prehensive review of the historical and legal developments underly-

ing the Indians’ unique relationship with the Federal Government in

order to determine the nature and scope of necessary revisions in

the formulation of policies and programs for the benefit of Indians.”

25 U.S.C. §174 note. The Commission was composed of 11 mem-

bers—three members from the Senate, three members from the

House of Representatives, three members from recognized Indian

tribes, one member from a non-recognized Indian group, and one

member to represent urban Indians. Eleven task forces were set up

to investigate areas ranging from tribal government to Indian

health and education to problems affecting urban Indians. The Com-

mission’s Final Report was submitted to Congress on May 17, 1977,

culminating two years of research, hearings, and investigation.

19

judges are both appointed and elected.

no uniform standard, but as a general

tribal judges are not At least tribe

requires applicants for judicial positions pass

an oral and written test on the tribe’s constitution

and laws. Indian tribal courts function in both

criminal and civil matters. In some areas, both the

judicial and police functions are contracted from

neighboring non-Indian communities. In at least one

area, a non-Indian government contracts law enforce-

ment services from a tribal police department. Some

tribes provide extensive representation for indigent

persons in tribal court; others provide none. Police

services may be provided entirely by tribal police,

by BIA officers or by a combination of BIA and

tribal police. Tribal appellate systems also vary

greatly. On some reservations, there is no appellate

court system. Where tribes utilize 25 CFR Courts

of Indian Offenses, appeals follow through the De-

partment of the Interior. Some tribes have their own

appellate court system; others use judges from

neighboring tribes for special appeals. The tribal

council may also constitute itself as the final tribal

appellate system.

“Any generalization about tribal courts and law

“forcement systems is therefore vague by definition.

nese are evolving institutions responding to tribal

and community needs and operating at various levels

of sophistication. Contrary to the views of some,

there does not appear to be anything inherent in

tribal justice systems that makes them any less

capable than their non-Indian counterparts in dis-

pensing justice.“

There is

rule, most

one tri

to

%° See also Final Report of Task Force Two to AIPRC on Tribal

Government 255-56, 271-83 (Comm. Print 1976); Clinton, Criminal

Jurisdiction Over Indian Lands: A Journey Through a Jurisdic-

tional Maze, 18 Ariz. L. Rev. 508, 553-64 (1976).

According to 1977 figures from the Department of Interior, there

are presently 71 tribal courts, 32 “CFR” courts (i. e., Courts of

This description reflects the variety, evolution, and

capacity of Indian tribal courts. No doubt not all tribal

courts are models of jurisprudence, but neither are all

state and federal courts. Improvements are occurring

rapidly and on a broad front. They include: (1) in-

creased federal and tribal funding for training judicial

and legal personnel and for improving court facilities;

(2) establishment (in 1970) of the National American

Indian Court Judges Association to organize ongoing ju-

dicial education programs; (3) revision of tribal con-

stitutions, codes and bylaws; (4) approval by several

Public Law 280 states of retrocession back to tribes;

and (5) federal and state court decisions recognizing and

expanding Indian jurisdiction.“

Indian Offenses), and approximately 25 traditional courts. The dif-

ference between tribal courts and “CFR” courts is that tribal courts

are funded by and an organic part of the tribe rather than the

Bureau of Indian Affairs.

A recent survey by the American Indian Lawyer Training Pro-

gram describes in some detail the organization and operation of 98

tribal court systems. See Indian Self-Determination and the Role of

Tribal Courts, supra note 36, at Appendix D. Of 85 tribes respond-

ing to a question on Indian jurisdiction, 31 tribes indicated that

they presently exercised criminal jurisdiction over non-Indians.

Thirty-nine tribes stated that they did not but were adopting or

considering necessary changes (e. g., amendment of tribal constitu-

tion or code) to permit assertion of such jurisdiction. Thirteen

tribes said that they had no desire to exercise civil or criminal juris-

diction over non-Indians. Jd. at Appendix C-11, C-12 (questions 52

and 55).

% See generally National American Indian Court Judges Associa-

tion, Inc., Justice and the American Indian (1974) (five-volume

work on Indian judiciary and Public Law 280, separation of powers,

extradition procedures, basis of tribal law and order authority, and

federal jurisdiction over major crimes) .

* F.., Pet. App. B 6-8, 39 et seg. (Suquamish Constitution and

code); O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1143-

44 (8th Cir. 1973). See 26 U.S.C. § 1311; 25 C. F. R. Pt. 11.

* Cf. Wakefield v. Little Light, 276 Md. 333, 347 A.2d 228 (1975)

(tribal proceedings accorded full faith and credit); Jim v. CIT

Financial Services Corp., 87 N.M. 362, 533 P.2d 751 (1975) (same).

21

The rise of the Indian tribal court has paralleled the

recent movement away from dispersal and assimilation

of Indians, a trend that has waxed and waned over 200

years of American history. Stronger, more competent,

and more respected tribal courts are an important part

of Indian identity and self-determination. They are a

renewed force in reservation life, significant for both

Indians and non-Indians.

CONCLUSION

For the reasons stated, we respectfully urge the Court

to affirm the decisions below, as requested by respondents.

Respectfully submitted,

CHARLES A. HOBBS

1735 New York Avenue, N. W.

Washington, D.C. 20006

Of Counsel: Counsel for Amici Curiae

RICHARD P. CARR

WILKINSON, CRAGUN & BARKER

October 28, 1977

As indicated, supra note 39, not all tribes wish or are able to

exercise criminal jurisdiction over non-Indians. In some instances,

there are treaty or tribal code prohibitions against such jurisdiction.

E. g., Quechan Tribe of Indians v. Rowe, 531 F.2d 408 (9th Cir.

1976) (code’s limitation of jurisdiction to members of tribe);

Treaty with the Willamette Indians, 10 Stat. 1143, 1145 (18565);

F. Cohen, Handbook of Federal Indian Law 364 (1972 Reprint). In

other cases, practical realities may result in a policy of abstention,

such as the tribe’s size, location, economic ability, and relationship

with non-Indians. See Final Report of Task Force Four to AIPRC,

supra note 24 at 89.