Indian tribal courts do not have inherent criminal jurisdiction
to try and to punish non-Indians, and hence may not assume such
jurisdiction unless specifically authorized to do so by Congress.
Pp.
435 U. S.
195-212.
(a) From the earliest treaties with Indian tribes, it was
assumed that the tribes, few of which maintained any semblance of a
formal court system, did not have such jurisdiction absent a
congressional statute or treaty provision to that effect, and at
least one court held that such jurisdiction did not exist. Pp.
435 U. S.
196-201.
(b) Congress' actions during the 19th century reflected that
body's belief that Indian tribes do not have inherent criminal
jurisdiction over non-Indians. Pp.
435 U. S.
201-206.
(c) The presumption, commonly shared by Congress, the Executive
Branch, and lower federal courts, that tribal courts have no power
to try non-Indians, carries considerable weight. P.
435 U. S.
206.
(d) By submitting to the overriding sovereignty of the United
States, Indian tribes necessarily yield the power to try
non-Indians except in a manner acceptable to Congress, a fact which
seems to be recognized by the Treaty of Point Elliott, signed by
the Suquamish Indian Tribe. Pp.
435 U. S. 206
211.
544 F.2d 1007 (Oliphant judgment), and Belgarde judgment,
reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
STEWART, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BURGER, C.J.,
joined,
post p.
435 U. S. 212.
BRENNAN, J., took no part in the consideration or decision of the
cases.
Page 435 U. S. 192
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Two hundred years ago, the area bordering Puget Sound consisted
of a large number of politically autonomous Indian villages, each
occupied by from a few dozen to over 100 Indians. These loosely
related villages were aggregated into a series of Indian tribes,
one of which, the Suquamish, has become the focal point of this
litigation. By the 1855 Treaty of Point Elliott, 12 Stat. 927, the
Suquamish Indian Tribe
Page 435 U. S. 193
relinquished al rights that it might have had in the lands of
the State of Washington and agreed to settle on a 7,276-acre
reservation near Port Madison, Wash. Located on Puget Sound across
from the city of Seattle, the Port Madison Reservation is a
checkerboard of tribal community land, allotted Indian lands,
property held in fee simple by non-Indians, and various roads and
public highways maintained by Kitsap County. [
Footnote 1]
The Suquamish Indians are governed by a tribal government which,
in 1973, adopted a Law and Order Code. The Code, which covers a
variety of offenses from theft to rape, purports to extend the
Tribe's criminal jurisdiction over both Indians and non-Indians.
[
Footnote 2] Proceedings are
held in the Suquamish
Page 435 U. S. 194
Indian Provisional Court. Pursuant to the Indian Civil Rights
Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, defendants are entitled
to many of the due process protections accorded to defendants in
federal or state criminal proceedings. [
Footnote 3] However, the guarantees are not identical.
Non-Indians, for example, are excluded from Suquamish tribal court
juries. [
Footnote 4]
Both petitioners are non-Indian residents of the Port Madison
Reservation. Petitioner Mark David Oliphant was arrested by tribal
authorities during the Suquamish's annual Chief Seattle Days
celebration and charged with assaulting a tribal officer and
resisting arrest. After arraignment before the tribal court,
Oliphant was released on his own recognizance. Petitioner Daniel B.
Belgarde was arrested by tribal authorities after an alleged
high-speed race along the Reservation highways that only ended when
Belgarde collided with a tribal police vehicle. Belgarde posted
bail and was released. Six days later, he was arraigned and charged
under the tribal Code with "recklessly endangering another person"
and injuring tribal property. Tribal court proceedings against both
petitioners have been stayed pending a decision in this case.
Both petitioners applied for a writ of habeas corpus to the
United States District Court for the Western District of
Washington. Petitioners argued that the Suquamish Indian
Provisional Court does not have criminal jurisdiction over
non-Indians. In separate proceedings, the District Court
disagreed
Page 435 U. S. 195
with petitioners' argument and denied the petitions. On August
24, 1976, the Court of Appeals for the Ninth Circuit affirmed the
denial of habeas corpus in the case of petitioner Oliphant.
Oliphant v. Schlie, 544 F.2d 1007. Petitioner Belgarde's
appeal is still pending before the Court of Appeals. [
Footnote 5] We granted certiorari, 431 U.S.
964, to decide whether Indian tribal courts have criminal
jurisdiction over non-Indians. We decide that they do not.
I
Respondents do not contend that their exercise of criminal
jurisdiction over non-Indians stems from affirmative congressional
authorization or treaty provision. [
Footnote 6] Instead, respondents
Page 435 U. S. 196
urge that such jurisdiction flows automatically from the
"Tribe's retained inherent powers of government over the Port
Madison Indian Reservation." Seizing on,language in our opinions
describing Indian tribes as "quasi-sovereign entities,"
see,
e.g., Morton v. Mancari, 417 U. S. 535,
417 U. S. 554
(1974), the Court of Appeals agreed, and held that Indian
tribes,
"though conquered and dependent, retain those powers of
autonomous states that are neither inconsistent with their status
nor expressly terminated by Congress."
According to the Court of Appeals, criminal jurisdiction over
anyone committing an offense on the reservation is a "
sine qua
non" of such powers.
The Suquamish Indian Tribe does not stand alone today in its
assumption of criminal jurisdiction over non-Indians. Of the 127
reservation court systems that currently exercise criminal
jurisdiction in the United States, 33 purport to extend that
jurisdiction to non-Indians. [
Footnote 7] Twelve other Indian tribes have enacted
ordinances which would permit the assumption of criminal
jurisdiction over non-Indians. Like the Suquamish these tribes
claim authority to try non-Indians not on the basis of
congressional statute or treaty provision, but by reason of their
retained national sovereignty.
The effort by Indian tribal courts to exercise criminal
Page 435 U. S. 197
jurisdiction over non-Indians, however, is a relatively new
phenomenon. And where the effort has been made in the past, it has
been held that the jurisdiction did not exist. Until the middle of
this century, few Indian tribes maintained any semblance of a
formal court system. Offenses by one Indian against another were
usually handled by social and religious pressure, and not by formal
judicial processes; emphasis was on restitution, rather than on
punishment. In 1834, the Commissioner of Indian Affairs described
the then status of Indian criminal systems:
"With the exception of two or three tribes, who have within a
few years past attempted to establish some few laws and regulations
among themselves, the Indian tribes are without laws, and the
chiefs without much authority to exercise any restraint."
H.R.Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).
It is therefore not surprising to find no specific discussion of
the problem before us in the volumes of the United States Reports.
But the problem did not lie entirely dormant for two centuries. A
few tribes during the 19th century did have formal criminal
systems. From the earliest treaties with these tribes, it was
apparently assumed that the tribes did not have criminal
jurisdiction over non-Indians absent a congressional statute or
treaty provision to that effect. For example, the 1830 Treaty with
the Choctaw Indian Tribe, which had one of the most sophisticated
of tribal structures, guaranteed to the Tribe "the jurisdiction and
government of all the persons and property that may be within their
limits." Despite the broad terms of this governmental guarantee,
however, the Choctaws at the conclusion of this treaty
provision
"express a
wish that Congress
may grant to the
Choctaws the right of punishing by their own laws any white man who
shall come into their nation, and infringe any of their national
regulations. [
Footnote 8]"
Art. 4, 7 Stat. 333 (emphasis added). Such a
Page 435 U. S. 198
request for affirmative congressional authority is inconsistent
with respondents' belief that criminal jurisdiction over
non-Indians is inherent in tribal sovereignty. Faced by
attempts
Page 435 U. S. 199
of the Choctaw Tribe to try non-Indian offenders in the early
1800's. the United States Attorneys General also concluded that the
Choctaws did not have criminal jurisdiction over non-Indians absent
congressional authority.
See 2 Op.Atty.Gen. 693 (1834); 7
Op.Atty.Gen. 174 (1855). According to the Attorney General in 1834,
tribal criminal jurisdiction over non-Indians is,
inter
alia, inconsistent with treaty provisions recognizing the
sovereignty of the United States over the territory assigned to the
Indian nation and the dependence of the Indians on the United
States.
At least one court has previously considered the power of Indian
courts to try non-Indians, and it also held against jurisdiction.
[
Footnote 9] In
Ex parte
Kenyon, 14 F. Cas. 353 (No. 7,720)
Page 435 U. S. 200
(WD Ark. 1878), Judge Isaac C. Parker, who as District Court
Judge for the Western District of Arkansas was constantly exposed
to the legal relationships between Indians and non-Indians,
[
Footnote 10] held that, to
give an Indian tribal court "jurisdiction of the person of an
offender, such offender must be an Indian."
Id. at 355.
The conclusion of Judge Parker was reaffirmed
Page 435 U. S. 201
only recently in a 1970 opinion of the Solicitor of the
Department of the Interior.
See Criminal Jurisdiction of
Indian Tribes over Non-Indians, 77 I.D. 113. [
Footnote 11]
While Congress was concerned almost from its beginning with the
special problems of law enforcement on the Indian reservations, it
did not initially address itself to the problem of tribal
jurisdiction over non-Indians. For the reasons previously stated,
there was little reason to be concerned with assertions of tribal
court jurisdiction over non-Indians, because of the absence of
formal tribal judicial systems. Instead, Congress' concern was with
providing effective protection for the Indians "from the violences
of the lawless part of our frontier inhabitants." Seventh Annual
Address of President George Washington, 1 Messages and Papers of
the Presidents, 1789-1897, pp. 181, 185 (J. Richardson ed., 1897).
Without such protection, it was felt that
"all the exertions of the Government to prevent destructive
retaliations by the Indians will prove fruitless, and all our
present agreeable prospects illusory."
Ibid. Beginning with the Trade and Intercourse Act of
1790, 1 Stat. 137, therefore, Congress assumed federal jurisdiction
over offenses by non-Indians against Indians which "would be
punishable by the laws of [the] state or district . . . if the
offense had been committed against a citizen or white inhabitant
thereof." In 1817, Congress went one step further and extended
federal enclave law to the Indian country; the only exception was
for "any offence committed by one Indian against another." 3 Stat.
383, now codified, as amended, 18 U.S.C. § 1152.
It was in 1834 that Congress was first directly faced with the
prospect of Indians trying non-Indians. In the Western Territory
bill, [
Footnote 12] Congress
proposed to create an Indian territory beyond the western-directed
destination of the settlers;
Page 435 U. S. 202
the territory was to be governed by a confederation of Indian
tribes and was expected ultimately to become a State of the Union.
While the bill would have created a political territory with broad
governing powers, Congress was careful not to give the tribes of
the territory criminal jurisdiction over United States officials
and citizens traveling through the area. [
Footnote 13] The reasons were quite practical:
"Officers, and persons in the service of the United States, and
persons required to reside in the Indian country by treaty
stipulations, must necessarily be placed under the protection, and
subject to the laws of the United States. To persons merely
traveling in the Indian country the same protection is extended.
The want of fixed laws, of competent tribunals of justice, which
must for some time continue in the Indian country, absolutely
requires for the peace of both sides that this protection should be
extended."
H R. Rep. No. 474, 23d Cong., 1st Sess., 18 (1834)
Page 435 U. S. 203
Congress' concern over criminal jurisdiction in this proposed
Indian Territory contrasts markedly with its total failure to
address criminal jurisdiction over non-Indians on other
reservations, which frequently bordered non-Indian settlements. The
contrast suggests that Congress shared the view of the Executive
Branch and lower federal courts that Indian tribal courts were
without jurisdiction to try non-Indians.
This unspoken assumption was also evident in other congressional
actions during the 19th century. In 1854, for example, Congress
amended the Trade and Intercourse Act to proscribe the prosecution
in federal court of an Indian who has already been tried in tribal
court. § 3, 10 Stat. 270, now codified, as amended, 18 U.S.C. §
1152. No similar provision, such as would have been required by
parallel logic if tribal courts had jurisdiction over non-Indians,
was enacted barring retrial of non-Indians. Similarly, in the Major
Crimes Act of 1885, Congress placed under the jurisdiction of
federal courts Indian offenders who commit certain specified major
offenses. Act of Mar. 3, 1885, § , 23 Stat. 385, now codified, as
amended, 18 U.S.C. § 1153. If tribal courts may try non-Indians,
however, as respondents contend, those tribal courts are free to
try non-Indians even for such major offenses as Congress may well
have given the federal courts
exclusive jurisdiction to
try members of their own tribe committing the exact same offenses.
[
Footnote 14]
Page 435 U. S. 204
In 1891, this Court recognized that Congress' various actions
and inactions in regulating criminal jurisdiction on Indian
reservations demonstrated an intent to reserve jurisdiction over
non-Indians for the federal courts. In
In re Mayfield,
141 U. S. 107,
141 U. S.
115-116 (1891), the Court noted that the policy of
Congress had been to allow the inhabitants of the Indian
country
"such power of self-government as was thought to be consistent
with the safety of the white population with which they may have
come in contact, and to encourage them as far as possible in
raising themselves to our standard of civilization."
The "general object" of the congressional statutes was to allow
Indian nations criminal
"Jurisdiction of all controversies between Indians, or where a
member of the nation is the only party to the proceeding, and to
reserve to the courts of the United States jurisdiction of all
actions to which its own citizens are parties on either side."
Ibid. While Congress never expressly forbade Indian
tribes to impose criminal penalties on non-Indians, we now make
express our implicit conclusion of nearly a century ago that
Congress consistently believed this to be the necessary result of
its repeated legislative actions.
In a 1960 Senate Report that body expressly confirmed its
Page 435 U. S. 205
assumption that Indian tribal courts are without inherent
jurisdiction to try non-Indians, and must depend on the Federal
Government for protection from intruders. [
Footnote 15] In considering a statute that would
prohibit unauthorized entry upon Indian land for the purpose of
hunting or fishing, the Senate Report noted:
"The problem confronting Indian tribes with sizable reservations
is that the United States provides no protection against
trespassers comparable to the protection it gives to Federal
property as exemplified by title 18, United States Code, section
1863 [trespass on national forest lands]. Indian property owners
should have the same protection as other property owners. For
example, a private hunting club may keep nonmembers off its game
lands or it may issue a permit for a fee. One who comes on such
lands without permission may be prosecuted under State law but a
non-Indian trespasser on an Indian reservation enjoys immunity.
This is by reason of the fact that Indian tribal law is
enforceable against Indians only; not against
non-Indians."
"
* * * *"
"
Non-Indians are not subject to the jurisdiction of Indian
courts, and cannot be tried in Indian courts on trespass
Page 435 U. S. 206
charges. Further, there are no Federal laws which can
be invoked against trespassers."
"
* * * *"
"The committee has considered this bill, and believes that the
legislation is meritorious. The legislation will give to the Indian
tribes and to individual Indian owners certain rights that now
exist as to others, and fills a gap in the present law for the
protection of their property."
S.Rep. No. 1686, 86th Cong., 2d Sess., 2-3 (1960) (emphasis
added).
II
While not conclusive on the issue before us, the commonly shared
presumption of Congress, the Executive Branch, and lower federal
courts that tribal courts do not have the power to try non-Indians
carries considerable weight.
Cf. Draper v. United States,
164 U. S. 240,
164 U. S.
245-247 (1896);
Morris v. Hitchcock,
194 U. S. 384,
194 U. S.
391-393 (1904);
Warren Trading Post Co. v. Arizona
Tax Comm'n, 380 U. S. 685,
380 U. S. 690
(1965);
DeCoteau v. District County Court, 420 U.
S. 425,
420 U. S.
444-4445 (1975). "Indian law" draws principally upon the
treaties drawn and executed by the Executive Branch and legislation
passed by Congress. These instruments, which, beyond their actual
text, form the backdrop for the intricate web of judicially made
Indian law, cannot be interpreted in isolation, but must be read in
light of the common notions of the day and the assumptions of those
who drafted them.
Ibid.
While, in isolation, the Treaty of Point Elliott, 12 Stat. 927
(1855), would appear to be silent as to tribal criminal
jurisdiction over non-Indians, the addition of historical
perspective casts substantial doubt upon the existence of such
jurisdiction. [
Footnote 16]
In the Ninth Article, for example, the Suquamish
Page 435 U. S. 207
"acknowledge their dependence on the government of the United
States." As Mr. Chief Justice Marshall explained in
Worcester v.
Georgia, 6 Pet. 515,
31 U. S.
551-552,
31 U. S. 554
(1832), such an acknowledgment is not a mere abstract recognition
of the United States' sovereignty.
"The Indian nations were, from their situation, necessarily
dependent on [the United States] . . . for their protection from
lawless and injurious intrusions into their country."
Id. at
31 U. S. 555.
By acknowledging their dependence on the United States, in the
Treaty of Point Elliott, the Suquamish were, in all probability,
recognizing that the United States would arrest and try non-Indian
intruders who came within their Reservation. Other provisions
Page 435 U. S. 208
of the Treaty also point to the absence of tribal jurisdiction.
Thus the Tribe "agree[s] not to shelter or conceal offenders
against the laws of the United States, but to deliver them up to
the authorities for trial." Read in conjunction with 18 U.S.C. §
1152, which extends federal enclave law to non-Indian offenses on
Indian reservations, this provision implies that the Suquamish are
to promptly deliver up any non-Indian offender, rather than try and
punish him themselves. [
Footnote
17]
By themselves, these treaty provisions would probably not be
sufficient to remove criminal jurisdiction over non-Indians if the
Tribe otherwise retained such jurisdiction. But an examination of
our earlier precedents satisfies us that, even ignoring treaty
provisions and congressional policy, Indians do not have criminal
jurisdiction over non-Indians absent affirmative delegation of such
power by Congress. Indian tribes do retain elements of
"quasi-sovereign" authority after ceding their lands to the United
States and announcing their dependence on the Federal Government.
See Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 15
(1831). But the tribes' retained powers are not such that they are
limited only by specific restrictions in treaties or congressional
enactments. As the Court of Appeals recognized, Indian tribes are
prohibited from exercising both those powers of autonomous states
that are expressly terminated by Congress
and those powers
"
inconsistent with their status."
Oliphant v.
Schlie, 544 F.2d at 1009 (emphasis added).
Indian reservations are "a part of the territory of the
United
Page 435 U. S. 209
States."
United States v.
Rogers, 4 How. 567,
45 U. S. 571
(1846). Indian tribes "hold and occupy [the reservations] with the
assent of the United States, and under their authority."
Id. at
45 U. S. 572.
Upon incorporation into the territory of the United States, the
Indian tribes thereby come under the territorial sovereignty of the
United States, and their exercise of separate power is constrained
so as not to conflict with the interests of this overriding
sovereignty. "[T]heir rights to complete sovereignty, as
independent nations, [are] necessarily diminished."
Johnson v.
M'Intosh, 8 Wheat. 543,
21 U. S. 574
(1823).
We have already described some of the inherent limitations on
tribal powers that stem from their incorporation into the United
States. In
Johnson v. M'Intosh, supra, we noted that the
Indian tribes' "power to dispose of the soil at their own will, to
whomsoever they pleased," was inherently lost to the overriding
sovereignty of the United States. And in
Cherokee Nation v.
Georgia, supra, the Chief Justice observed that, since Indian
tribes are
"completely under the sovereignty and dominion of the United
States, . . . any attempt [by foreign nations] to acquire their
lands, or to form a political connexion with them would be
considered by all as an invasion of our territory, and an act of
hostility."
5 Pet. at
30 U. S.
17-18.
Nor are the intrinsic limitations on Indian tribal authority
restricted to limitations on the tribes' power to transfer lands or
exercise external political sovereignty. In the first case to reach
this Court dealing with the status of Indian tribes, Mr. Justice
Johnson, in a separate concurrence, summarized the nature of the
limitations inherently flowing from the overriding sovereignty of
the United States as follows:
"[T]he restrictions upon the right of soil in the Indians amount
. . . to an exclusion of all competitors [to the United States]
from their markets; and the limitation upon their sovereignty
amounts to the right of governing every person within their
limits except themselves."
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 147
(1810) (emphasis added). Protection of territory within its
Page 435 U. S. 210
external political boundaries is, of course, as central to the
sovereign interests of the United States as it is to any other
sovereign nation. But, from the formation of the Union and the
adoption of the Bill of Rights, the United States has manifested an
equally great solicitude that its citizens be protected by the
United States from unwarranted intrusions on their personal
liberty. The power of the United States to. try and criminally
punish is an important manifestation of the power to restrict
personal liberty. By submitting to the overriding sovereignty of
the United States, Indian tribes therefore necessarily give up
their power to try non-Indian citizens of the United States except
in a manner acceptable to Congress. This principle would have been
obvious a century ago when most Indian tribes were characterized by
a "want of fixed laws [and] of competent tribunals of justice."
H.R.Rep. No. 474, 23d Cong., 1st Sess., 18 (1834). It should be no
less obvious today, even though present-day Indian tribal courts
embody dramatic advances over their historical antecedents.
In
Ex parte Crow Dog, 109 U. S. 556
(1883), the Court was faced with almost the inverse of the issue
before us here -- whether, prior to the passage of the Major Crimes
Act, federal courts had jurisdiction to try Indians who had
offended against fellow Indians on reservation land. In concluding
that criminal jurisdiction was exclusively in the tribe, it found
particular guidance in the "nature and circumstances of the case."
The United States was seeking to extend United States
"law, by argument and inference only, . . . over aliens and
strangers; over the members of a community separated by race [and]
tradition, . . . from the authority and power which seeks to impose
upon them the restraints of an external and unknown code . . . ;
which judges them by a standard made by others and not for them. .
. . It tries them not by their peers, nor by the customs of
Page 435 U. S. 211
their people, nor the law of their land, but by . . . a
different race, according to the law of a social state of which
they have an imperfect conception. . . ."
Id. at
109 U. S. 571.
These considerations, applied here to the non-Indian, rather than
Indian, offender, speak equally strongly against the validity of
respondents' contention that Indian tribes, although fully
subordinated to the sovereignty of the United States, retain the
power to try non-Indians according to their own customs and
procedure.
As previously noted, Congress extended the jurisdiction of
federal courts, in the Trade and Intercourse Act of 1790, to
offenses committed by non-Indians against Indians within Indian
Country. In doing so, Congress was careful to extend to the
non-Indian offender the basic criminal rights that would attach in
non-Indian related cases. Under respondents' theory, however,
Indian tribes would have been free to try the same non-Indians
without these careful proceedings unless Congress affirmatively
legislated to the contrary. Such an exercise of jurisdiction over
non-Indian citizens of the United States would belie the tribes'
forfeiture of full sovereignty in return for the protection of the
United States.
In summary, respondents' position ignores that
"Indians are within the geographical limits of the United
States. The soil and people within these limits are under the
political control of the Government of the United States, or of the
States of the Union. There exist in the broad domain of sovereignty
but these two. There may be cities, counties, and other organized
bodies with limited legislative functions, but they . . . exist in
subordination to one or the other of these."
United States v. Kagama, 118 U.
S. 375,
118 U. S. 379
(1886). We recognize that some Indian tribal court systems have
become increasingly sophisticated, and resemble in many
Page 435 U. S. 212
respects their state counterparts. We also acknowledge that,
with the passage of the Indian Civil Rights Act of 1968, which
extends certain basic procedural rights to anyone tried in Indian
tribal court, many of the dangers that might have accompanied the
exercise by tribal courts of criminal jurisdiction over non-Indians
only a few decades ago have disappeared. Finally, we are not
unaware of the prevalence of non-Indian crime on today's
reservations which the tribes forcefully argue requires the ability
to try non-Indians. [
Footnote
18] But these are considerations for Congress to weigh in
deciding whether Indian tribes should finally be authorized to try
non-Indians. They have little relevance to the principles which
lead us to conclude that Indian tribes do not have inherent
jurisdiction to try and to punish non-Indians. The judgments below
are therefore
Reversed.
MR. JUSTICE BRENNAN took no part in the consideration or
decision of these cases.
* Together with
Belgarde v. Suquamish Indian Tribe et
al., on certiorari before judgment to the same court
(
see this Court's Rule 23(5)).
[
Footnote 1]
According to the District Court's findings of fact:
"[The] Port Madison Indian Reservation consists of approximately
7276 acres, of which approximately 63% thereof is owned in fee
simple absolute by non-Indians and the remainder 37% is
Indian-owned lands subject to the trust status of the United
States, consisting mostly of unimproved acreage upon which no
persons reside. Residing on the reservation is an estimated
population of approximately 2928 non-Indians living in 976 dwelling
units. There lives on the reservation approximately 50 members of
the Suquamish Indian Tribe. Within the reservation are numerous
public highways of the State of Washington, public schools, public
utilities and other facilities in which neither the Suquamish
Indian Tribe nor the United States has any ownership or
interest."
"App. 75."
The Suquamish Indian Tribe, unlike many other Indian tribes, did
not consent to non-Indian homesteading of unallotted or "surplus"
lands within their reservation pursuant to 25 U.S.C. § 348 and 43
U.S.C. §§ 1195-1197. Instead, the substantial non-Indian population
on the Port Madison Reservation is primarily the result of the sale
of Indian allotments to non-Indians by the Secretary of the
Interior. Congressional legislation has allowed such sales where
the allotments were in heirship, fell to "incompetents," or were
surrendered in lieu of other selections. The substantial non-Indian
landholdings on the Reservation are also a result of the lifting of
various trust restrictions, a factor which has enabled individual
Indians to sell their allotments.
See 25 U.S.C. §§ 349,
392.
[
Footnote 2]
Notices were placed in prominent places at the entrances to the
Port Madison Reservation informing the public that entry onto the
Reservation would be deemed implied consent to the criminal
jurisdiction of the Suquamish tribal court.
[
Footnote 3]
In
Talton v. Mayes, 163 U. S. 376
(1896), this Court held that the Bill of Rights in the Federal
Constitution does not apply to Indian tribal governments.
[
Footnote 4]
The Indian Civil Rights Act of 1968 provides for "a trial by
jury of not less than six persons," 25 U.S.C. § 1302(10), but the
tribal court is not explicitly prohibited from excluding
non-Indians from the jury even where a non-Indian is being tried.
In 1977, the Suquamish Tribe amended its Law and Order Code to
provide that only Suquamish tribal members shall serve as jurors in
tribal court.
[
Footnote 5]
Belgarde's petition for certiorari was granted while his appeal
was still pending before the Court of Appeals for the Ninth
Circuit. No further proceedings in that court have been held
pending our decision.
[
Footnote 6]
Respondents do contend that Congress has "confirmed" the power
of Indian tribes to try and to punish non-Indians through the
Indian Reorganization Act of 1934, 48 Stat. 987, 25 U.S.C. § 476,
and the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302. Neither
Act, however, addresses, let alone "confirms," tribal criminal
jurisdiction over non-Indians. The Indian Reorganization Act merely
gives each Indian tribe the right "to organize for its common
welfare" and to "adopt an appropriate constitution and bylaws."
With certain specific additions not relevant here, the tribal
council is to have such powers as are vested "by existing law." The
Indian Civil Rights Act merely extends to "any person" within the
tribe's jurisdiction certain enumerated guarantees of the Bill of
Rights of the Federal Constitution.
As respondents note, an early version of the Indian Civil Rights
Act extended its guarantees only to "American Indians," rather than
to "any person." The purpose of the later modification was to
extend the Act's guarantees to "all persons who may be subject to
the jurisdiction of tribal governments, whether Indians or
non-Indians." Summary Report on the Constitutional Rights of
American Indians, Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary, 89th Cong., 2d Sess., 10 (1966).
But this change was certainly not intended to give Indian tribes
criminal jurisdiction over non-Indians. Nor can it be read to
"confirm" respondents' argument that Indian tribes have inherent
criminal jurisdiction over non-Indians. Instead, the modification
merely demonstrates Congress' desire to extend the Act's guarantees
to non-Indians if and where they come under a tribe's criminal or
civil jurisdiction by either treaty provision or Act of
Congress.
[
Footnote 7]
Of the 127 courts currently operating on Indian reservations, 71
(including the Suquamish Indian Provisional Court) are tribal
courts, established and functioning pursuant to tribal legislative
powers; 30 are "CFR Courts" operating under the Code of Federal
Regulations, 25 CFR § 11.1
et seq. (1977); 16 are
traditional courts of the New Mexico pueblos; and 10 are
conservation courts. The CFR Courts are the offspring of the Courts
of Indian Offenses, first provided for in the Indian Department
Appropriations Act of 1888, 25 Stat. 217, 233.
See W.
Hagan, Indian Police and Judges (1966). By regulations issued in
1935, the jurisdiction of CFR Courts is restricted to offenses
committed by Indians within the reservation. 25 CFR § 11.2(a)
(1977). The case before us is concerned only with the criminal
jurisdiction of tribal courts.
[
Footnote 8]
The history of Indian treaties in the United States is
consistent with the principle that Indian tribes may not assume
criminal jurisdiction over non-Indians without the permission of
Congress. The earliest treaties typically expressly provided
that
"any citizen of the United States, who shall do an injury to any
Indian of the [tribal] nation, or to any other Indian or Indians
residing in their towns, and under their protection, shall be
punished according to the laws of the United States."
See, e.g., Treaty with the Shawnees, Art. III, 7 Stat.
26 (1786). While, as elaborated further below, these provisions
were not necessary to remove criminal jurisdiction over non-Indians
from the Indian tribes, they would naturally have served an
important function in the developing stage of United States-Indian
relations by clarifying jurisdictional limits of the Indian tribes.
The same treaties generally provided that,
"[i]f any citizen of the United States . . . shall attempt to
settle on any of the lands hereby allotted to the Indians to live
and hunt on, such person shall forfeit the protection of the United
States of America, and the Indians may punish him or not as they
please."
See, e.g., Treaty with the Choctaws, Art. IV, 7 Stat.
22 (1786). Far from representing a recognition of any inherent
Indian criminal jurisdiction over non-Indians settling on tribal
lands, these provisions were. instead. intended as a means of
discouraging non-Indian settlements on Indian territory in
contravention of treaty provisions to the contrary.
See 5
Annals of Cong. 903-904 (1796). Later treaties dropped this
provision and provided instead that non-Indian settlers would be
removed by the United States upon complaint being lodged by the
tribe.
See, e.g., Treaty with the Sacs and Foxes, 7 Stat.
84 (1804).
As the relationship between Indian tribes and the United States
developed through the passage of time, specific provisions for the
punishment of non-Indians by the United States, rather than by the
tribes, slowly disappeared from the treaties. Thus, for example,
none of the treaties signed by Washington Indians in the 1850's
explicitly proscribed criminal prosecution and punishment of
non-Indians by the Indian tribes. As discussed below, however,
several of the treaty provisions can be read as recognizing that
criminal jurisdiction over non-Indians would be in the United
States, rather than in the tribes. The disappearance of provisions
explicitly providing for the punishment of non-Indians by the
United States, rather than by the Indian tribes, coincides with,
and is at least partly explained by, the extension of federal
enclave law over non-Indians in the Trade and Intercourse Acts and
the general recognition by Attorneys General and lower federal
courts that Indians did not have jurisdiction to try non-Indians.
See infra at
435 U. S.
198-201. When it was felt necessary to expressly spell
out respective jurisdictions, later treaties still provided that
criminal jurisdiction over non-Indians would be in the United
States.
See, e.g., Treaty with the Utah-Tabeguache Band,
Art. 6, 13 Stat. 674 (1863).
Only one treaty signed by the United States has ever provided
for any form of tribal criminal jurisdiction over non-Indians
(other than in the illegal-settler context noted above). The first
treaty signed by the United States with an Indian tribe, the 1778
Treaty with the Delawares, provided that neither party to the
treaty could
"proceed to the infliction of punishments on the citizens of the
other, otherwise than by securing the offender or offenders by
imprisonment, or any other competent means, till a fair and
impartial trial can be had by judges or juries of both parties, as
near as can be to the laws, customs and usages of the contracting
parties and natural justice:
The mode of such tryals to be
hereafter fixed by the wise men of the United States in Congress
assembled, with the assistance of . . . deputies of the
Delaware nation. . . ."
Treaty with the Delawares, Art. IV, 7 Stat. 14 (emphasis added).
While providing for Delaware participation in the trial of
non-Indians, this treaty section established that non-Indians could
only be tried under the auspices of the United States and in a
manner fixed by the Continental.Congress.
[
Footnote 9]
According to Felix Cohen's Handbook of Federal Indian Law 148
(U.S. Dept. of the Interior 1941),
"attempts of tribes to exercise jurisdiction over non-Indians .
. . have been generally condemned by the federal courts since the
end of the treaty-making period, and the writ of habeas corpus has
been used to discharge white defendants from tribal custody."
[
Footnote 10]
Judge Parker sat as the judge of the United States District
Court for the Western District of Arkansas from 1875 until 1896. By
reason of the laws of Congress in effect at the time, that
particular court not only handled the normal docket of federal
cases arising in the Western District of Arkansas, but also had
criminal jurisdiction over what was then called the "Indian
Territory." This area varied in size during Parker's tenure; at one
time, it extended as far west as the eastern border of Colorado,
and always included substantial parts of what would later become
the State of Oklahoma. In the exercise of this jurisdiction over
the Indian Territory, the Court in which he sat was necessarily in
constant contact with individual Indians, the tribes of which they
were members, and the white men who dealt with them and often
preyed upon them.
Judge Parker's views of the law were not always upheld by this
Court.
See 2 J. Wigmore, Evidence § 276, pp. 115-116, n. 3
(3d ed.1940). A reading of Wigmore, however, indicates that he was
as critical of the decisions of this Court there mentioned as this
Court was of the evidentiary rulings of Judge Parker. Nothing in
these long forgotten disputes detracts from the universal esteem in
which the Indian tribes which were subject to the jurisdiction of
his court held Judge Parker. One of his biographers, describing the
judge's funeral, states that, after the grave was filled "[t]he
principal chief of the Choctaws, Pleasant Porter, came forward and
placed a wreath of wild flowers on the grave." H. Croy, He Hanged
Them High 222 (1952).
It may be that Judge Parker's views as to the ultimate destiny
of the Indian people are not in accord with current thinking on the
subject, but we have observed in more than one of our cases that
the views of the people on this issue, as reflected in the
judgments of Congress itself, have changed from one era to the
next.
See Kake Village v. Egan, 369 U. S.
60,
369 U. S. 71-74
(1962). There cannot be the slightest doubt that Judge Parker was,
by his own lights and by the lights of the time in which he lived,
a judge who was thoroughly acquainted with, and sympathetic to, the
Indians and Indian tribes which were subject to the jurisdiction of
his court, as well as familiar with the law which governed them.
See generally Hell on the Border (1971, J. Gregory &
R. Strickland, eds.)
[
Footnote 11]
The 1970 opinion of the Solicitor was withdrawn in 1974, but has
not been replaced. No reason was given for the withdrawal.
[
Footnote 12]
See H.R.Rep. No. 474, 23d Cong., 1st Sess., 36
(1834).
[
Footnote 13]
The Western Territory bill, like the early Indian treaties,
see n 6,
supra, did not extend the protection of the United States
to non-Indians who settled without Government business in Indian
territory.
See Western Territory bill, § 6, in H.R.Rep.
No. 474,
supra at 35;
id. at 18. This exception,
like that in the early treaties, was presumably meant to discourage
settlement on land that was reserved exclusively for the use of the
various Indian tribes. Today, many reservations, including the Port
Madison Reservation, have extensive non-Indian populations. The
percentage of non-Indian residents grew as a direct and intended
result of congressional policies in the late 19th and early 20th
centuries promoting the assimilation of the Indians into the
non-Indian culture. Respondents point to no statute, in comparison
to the Western Territory bill, where Congress has intended to give
Indian tribes jurisdiction today over non-Indians residing within
reservations.
Even as drafted, many Congressmen felt that the bill was too
radical a shift in United States-Indian relations, and the bill was
tabled.
See 10 Cong. Deb. 4779 (1834). While the Western
Territory bill was resubmitted several times in revised form, it
was never passed.
See generally R. Gittinger, The
Formation of the State of Oklahoma (1939).
[
Footnote 14]
The Major Crimes Act provides that Indians committing any of the
enumerated offenses
"shall be subject to the same laws and penalties as all other
persons committing any of the above offenses,
within the
exclusive jurisdiction of the United States."
(Emphasis added.) While the question has never been directly
addressed by this Court, Courts of Appeals have read this language
to exclude tribal jurisdiction over the Indian offender.
See,
e.g., Sam v. United States, 385 F.2d 213, 214 (CA10 1967);
Felicia v. United States, 495 F.2d 353, 354 (CA8 1974). We
have no reason to decide today whether jurisdiction under the Major
Crimes Act is exclusive.
The legislative history of the original version of the Major
Crimes Act, which was introduced as a House amendment to the Indian
Appropriation Act of 1855, creates some confusion on the question
of exclusive jurisdiction. As originally worded, the amendment
would have provided for trial in the United States courts "
and
not otherwise." Apparently at the suggestion of Congressman
Budd, who believed that concurrent jurisdiction in the courts of
the United States was sufficient, the words "and not otherwise"
were deleted when the amendment was later reintroduced.
See 16 Cong.Rec. 93935 (1885). However, as finally
accepted by the Senate and passed by both Houses, the amendment did
provide that the Indian offender would be punished as any other
offender, "within the exclusive jurisdiction of the United States."
The issue of exclusive jurisdiction over major crimes was mooted,
for all practical purposes, by the passage of the Indian Civil
Rights Act of 1968, which limits the punishment that can be imposed
by Indian tribal courts to a term of 6 months or a fine of $500
[
Footnote 15]
In 1977, a congressional Policy Review Commission, citing the
lower court decisions in
Oliphant and
Belgarde,
concluded that "[t]here is an established legal basis for tribes to
exercise jurisdiction over non-Indians." 1 Final Report of the
American Indian Policy Review Commission 114, 117, 152-154 (1977).
However, the Commission's report does not deny that, for almost 200
years before the lower courts decided
Oliphant and
Belgarde, the three branches of the Federal Government
were in apparent agreement that Indian tribes do not have
jurisdiction over non-Indians. As the Vice Chairman of the
Commission, Congressman Lloyd Meeds, noted in dissent,
"such jurisdiction has generally not been asserted and . . . the
lack of legislation on this point reflects a congressional
assumption that there was no such tribal jurisdiction."
Final Report,
supra at 587.
[
Footnote 16]
When treaties with the Washington Tribes were first
contemplated, the Commissioner of Indian Affairs sent instructions
to the Commission to Hold Treaties with the Indian Tribes in
Washington Territory and in the Blackfoot Country. Included with
the instructions were copies of treaties previously negotiated with
the Omaha Indians, 10 Stat. 1043 (1854), and with the Ottoe and
Missouria Indians, 10 Stat. 1038 (1854), which the Commissioner
"regarded as exhibiting provisions proper on the part of the
Government and advantages to the Indians" and which he felt would
"afford valuable suggestions." The criminal provisions of the
Treaty of Point Elliott are clearly patterned after the criminal
provisions in these "exemplary" treaties, in most respects copying
the provisions verbatim. Like the Treaty of Point Elliott, the
treaties with the Omahas and with the Ottoes and Missourias did not
specifically address the issue of tribal criminal jurisdiction over
non-Indians.
Sometime after the receipt of these instructions, the Washington
treaty Commission itself prepared and discussed a draft treaty
which specifically provided that
"[i]njuries committed by whites towards them [are] not to be
revenged, but on complaint being made they shall be tried by the
Laws of the United States and if convicted the offenders
punished."
For some unexplained reason, however, in negotiating a treaty
with the Indians, the Commission went back to the language used in
the two "exemplary" treaties sent by the Commissioner of Indian
Affairs. Although respondents contend that the Commission returned
to the original language because of tribal opposition to
relinquishment of criminal jurisdiction over non-Indians, there is
no evidence to support this view of the matter. Instead, it seems
probable that the Commission preferred to use the language that had
been recommended by the Office of Indian Affairs. As discussed
below, the language ultimately used, wherein the Tribe acknowledged
its dependence on the United States and promised to be "friendly
with all citizens thereof," could well have been understood as
acknowledging exclusive federal criminal jurisdiction over
non-Indians.
[
Footnote 17]
In interpreting Indian treaties and statutes,
"'[d]oubtful expressions are to be resolved in favor of the weak
and defenseless people who are the wards of the nation, dependent
upon its protection and good faith.'"
McClanahan v. Arizona State Tax Comm'n, 411 U.
S. 164,
411 U. S. 174
(1973);
See Kansas
Indians, 5 Wall. 737,
72 U. S. 760
(1866);
United States v. Nice, 241 U.
S. 591,
241 U. S. 599
(1916). But treaty and statutory provisions which are not clear on
their face may "be clear from the surrounding circumstances and
legislative history."
Cf. DeCoteau v. District County
Court, 420 U. S. 425,
420 U. S. 444
(1975)
[
Footnote 18]
See 4 National American Indian Court Judges Assn.,
Justice and the American Indian 51-52 (1974); Hearings on S. 1 and
S. 1400 (reform of the Federal Criminal Laws) before the
Subcommittee on Criminal Laws and Procedures of the Senate
Committee on the Judiciary, 93d Cong., 1st Sess., 6469
et
seq. (1973).
MR. JUSTICE MARSHALL, with whom THE CHIEF JUICE joins,
dissenting.
I agree with the court below that the "power to preserve order
on the reservation . . . is a
sine qua non of the
sovereignty that the Suquamish originally possessed."
Oliphant
v. Schlie, 544 F.2d 1007, 1009 (CA9 1976). In the absence of
affirmative withdrawal by treaty or statute, I am of the view that
Indian tribes enjoy, as a necessary aspect of their retained
sovereignty, the right to try and punish all persons who commit
offenses against tribal law within the reservation. Accordingly, I
dissent.