Mark David Oliphant v. Edward Schlie, Chief of Police of the City of Bremerton, Defendant

544 F.2d 1007

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 1976
• Docket: 74-2154
• Status: Published

Opinions

DUNIWAY, Circuit Judge:

This case involves a question of Indian law which has been unresolved since it first arose almost a century ago: what is the jurisdiction of an Indian tribe over non-Indians who commit crimes while on Indian tribal land within the boundaries of the reservation? See Ex parte Kenyon, C.C.W.D.Ark., 1878, Fed.Cas.No.7720, 14 Fed.Cas. 353. Oliphant was arrested on the Port Madison Indian Reservation in the state of Washington by Suquamish tribal police on August 19, 1973, and charged before the Provisional Court of the Suquamish Indian Tribe with assaulting an officer and resisting arrest. He was incarcerated by order of the tribal court in lieu of $200 bail, but then released on his own recognizance by that court. Before trial he petitioned the United States District Court for a writ of habeas corpus, alleging that an Indian tribal court can have no jurisdiction over a non-Indian. The district court denied the writ and Oliphant appeals. We affirm.

Jurisdiction in this case is founded on 25 U.S.C. § 1303 and 28 U.S.C. §§ 2241(c)(1) and (3). See Colliflower v. Garland, 9 Cir., 1965, 342 F.2d 369, 379. Oliphant’s release on his own recognizance did not deprive the district court of jurisdiction. Hensley v. Municipal Court, 1973, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294.

Oliphant argues that the Suquamish have no jurisdiction over non-Indians because Congress never conferred such jurisdiction on them. This misstates the problem.¹ The proper approach to the question of tribal criminal jurisdiction is to ask “first, what the original sovereign powers of the tribes were, and, then, how far and in what respects these powers have been limited.” Powers of Indian Tribes, 1934, 55 I.D. 14, 57. See Ortiz-Barraza v. United States, 9 Cir., 1975,512 F.2d 1176,1179. “It must always be remembered that the various Indian tribes were once independent and sovereign nations . . . .” McClanahan v. Arizona State Tax Comm., 1973, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129, who, though conquered and dependent, retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress. Worcester v. Georgia, 1832, 6 Pet. (31 U.S.) 515, 560-61, 8 L.Ed. 483; Cherokee Nation v. Georgia, 1831, 5 Pet. (30 U.S.) 1, 17-18, 8 L.Ed. 25.

Surely the power to preserve order on the reservation, when necessary by punishing those who violate tribal law, is a sine qua non of the sovereignty that the Suquamish originally possessed. As the Eighth Circuit held seven decades ago when it upheld the right of the Creek Nation to tax non-Indian residents:

It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the agreement of the nation itself or by the superior power of the republic it is taken from it. Buster v. Wright, 8 Cir., 1905, 135 F. 947, 950, appeal dismissed, 1906, 203 U.S. 599, 27 S.Ct. 777, 51 L.Ed. 334.

The Supreme Court, in dictum, has declared not only that Indian tribes have criminal jurisdiction, but that “if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.” Williams v. Lee, 1959, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251.

As we recently said in United States v. Burns, 9 Cir., 1975, 529 F.2d 114 (1975):

Just as state law is not to apply on Indian lands, unless expressly authorized by federal statute, so also, federal enclave law is not to apply unless expressly authorized. 529 F.2d at 117.

We turn to the relevant treaties and Congressional acts to see whether any has withdrawn from Suquamish the power to punish Oliphant for a violation of the tribal law and order code. Our approach is influenced by the long-standing rule that “legislation affecting the Indians is to be construed in their interest.” ² United States v. Nice, 1916, 241 U.S. 591, 599, 36 S.Ct. 696, 60 L.Ed. 1192; Santa Rosa Band of Indians v. Kings County, 9 Cir., 1975, 532 F.2d 655, at 660-661 (1975). See also Bryan v. Itasca County, 1976, 426 U.S. 373, at 391-393, 96 S.Ct. 2102, 2113-2114, 48 L.Ed.2d 710; McClanahan v. Arizona State Tax Comm., supra, 411 U.S. at 174, 93 S.Ct. 1257.

The starting point in determining how much of their original sovereignty the Suquamish have lost is the Treaty of Point Elliott, 12 Stat. 927 (1859), the first treaty between these people and the United States. While other treaties with other tribes had expressly granted or withdrawn the power to try non-Indian criminals, the Treaty of Point Elliott was silent on the subject. M. Price, Law and the American Indian 22-27 (1973). The only significant surrender of internal autonomy was contained in Article IX of the Treaty, in which the Indian signatories agreed not to “shelter or conceal offenders against the law of the United States, but to deliver them up to the authorities for trial.” 12 Stat. 929. See Arizona ex rel. Merrill v. Turtle, 9 Cir., 1969, 413 F.2d 683, cert. denied, 1970, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494.

The second and last treaty or agreement between the Suquamish and the United States, 33 Stat. 1078 (1905), involved the relinquishment of land by the Indian tribes residing on the Port Madison reservation. It did not mention the transfer of any powers and specifically provided that it did not deprive the Indians of any benefits “not inconsistent with the provisions of this agreement.” 33 Stat. 1079. No treaty has deprived the Suquamish of criminal jurisdiction over Oliphant. We therefore shift our attention to Congressional acts.

Oliphant relies on three statutes to support his thesis that Indian tribes do not have criminal jurisdiction over non-Indians. First, he argues that 18 U.S.C. § 1152 has withdrawn criminal jurisdiction over non-Indians from Indian tribes. We cannot read § 1152 as withdrawing from Indian tribes criminal jurisdiction that they otherwise possess. It extends federal criminal laws applicable to federal enclaves to Indian country, but it does not attempt either to extinguish tribal jurisdiction or to declare federal jurisdiction exclusive. In light of the principles of statutory construction enunciated in Nice, supra, and Santa Rosa Band of Indians, supra, this could end our inquiry. However, we find additional support in the legislative history of § 1152.

Section 1152 originated as § 4 of the Indian Trade and Intercourse Act of 1802, 2 Stat. 141. It was reenacted in 1817 (3 Stat. 383), 1834 (§ 25 of the Trade and Intercourse Act, 4 Stat. 733), and 1854 (§ 3 of the Act of March 27,1854,10 Stat. 270), when it was modified to eliminate the possibility that an Indian subjected to tribal discipline could also be tried in federal court.³ Except for minor language changes when it was incorporated into the Revised Statutes and later into the United States Code, § 1152 has not changed since 1854.

Our reading of the Congressional history convinces us that § 1152 was not intended, and should not be read, to prohibit Indian tribes from prosecuting non-Indians for of-. fenses against tribal law committed on the reservation. Section 1152 can be explained more rationally as an attempt to protect Indian tribes, who had no established legal system and whose authority was frequently challenged by unsympathetic state governments, see Cherokee Nation v. Georgia, supra, from depredations by “unprincipled white men.” H.R.Rep.No.474, 23 Cong., 1st Sess. 98 (1834).

[I]t is rather of courtesy than of right that we undertake to punish crimes committed in that territory by and against our own citizens. And this provision of [§ 25 of the Trade and Intercourse Act of 1834] is retained principally on the ground that it may be unsafe to trust to Indian law in the early stages of their Government. Id. at 13.⁴

Only one case cited by Oliphant, Ex parte Kenyon, supra, tends to support his argument that § 1152 deprives Indian tribes of jurisdiction over non-Indians.⁵ Kenyon, however, concerned a crime committed outside the territorial boundaries of “Indian country,” a fact which figured prominently in the court’s opinion. See Elk v. Wilkins, 1884, 112 U.S. 94, 108, 5 S.Ct. 41, 28 L.Ed. 643. The assertion that an Indian tribe can have no jurisdiction over a non-Indian was dictum, mentioned only in passing and without supporting authority. Our de novo examination of Indian law decisions since Cherokee Nation v. Georgia, supra, convinces us that the statement by Judge Parker in Kenyon and cited as supporting Oliphant’s position is wrong. Law and The American Indian, supra, 171-75; Recent Developments, Indian Tribal Courts, 18 St. Louis U.L.J. 461, 462-64 (1975).

Second, Oliphant argues that the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302, ousts the tribal court of jurisdiction. That Act applies certain due process requirements to Indian tribes exercising powers of self-government because the Supreme Court in Talton v. Mayes, 1896, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196, had held that the Bill of Rights in the Federal Constitution did not apply to Indian tribal governments. Nothing in the Indian Bill of Rights purports to withdraw any criminal jurisdiction of the Indian tribes. It recognizes such jurisdiction, but prescribes certain due process type limitations upon its exercise.

Section 1302 provides: “No Indian tribe in exercising powers of self-government shall — . ..(!)... impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500, or both; . . . (10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.” Oliphant argues that a fair trial for him is impossible because non-Indians would be excluded from the venire. This issue is raised prematurely. Oliphant is entitled to a fair trial; if he should be denied one, appeal from a conviction or a petition for a writ of habeas corpus would then be appropriate. Further discussion of this contention is unnecessary.

Third, Oliphant argues that § 7 of Public Law 280 (P.L. 83-280, 67 Stat. 590, 1953, modified by P.L. 90-284, § 401, 82 Stat. 78, 1968; 25 U.S.C. § 1321) deprives the Suquamish of jurisdiction over him. This statute permits a state to assume certain criminal jurisdiction in Indian country, with the consent of the affected tribe. Pursuant to this law, Washington adopted a statute, Laws of 1957, ch. 240, assuming jurisdiction whenever the governor of the state received the tribal assent. The Suquamish consented and on May 15, 1958, the Governor proclaimed the effectiveness of the state jurisdiction.

However, in 1968, Congress provided for retrocession by a state of the jurisdiction assumed by it under § 1321. P.L. 90-284, 82 Stat. 79, 25 U.S.C. § 1323. On August 26, 1971, the Governor of Washington proclaimed retrocession to the United States of jurisdiction over the Suquamish Port Madison Indian Reservation. By Executive Order No. 11435, 33 F.R. 17339, the President designated the Secretary of the Interior as authorized to exercise the authority of the United States under § 1323, his acceptance of retrocession to be effective by being published in the Federal Register. On April 14, 1972, the Secretary accepted the retrocession proclaimed by the Governor. 37 F.R. 7353.

Oliphant argues that the Governor’s proclamation was invalid under the state law and can have no effect. In our opinion, the question is one of federal law, not state law. The acceptance of the retrocession by the Secretary, pursuant to the authorization of the President, made the retrocession effective, whether or not the Governor’s proclamation was valid under Washington law. In this respect, we agree with the views of Judge Denney in United States v. Brown, D.Neb., 1971, 334 F.Supp. 536, 540-41:

The federal government, having plenary power over the Indians, had the power to prescribe any method or event it desired to trigger its own re-assumption of control over Indian affairs within a state. In fact, the triggering event could have been devoid of any mention of state action at all.

The plenary power of the federal government over Indian affairs, the inescapable difficulty of requiring the Secretary to delve into the internal workings of the state government, and the reliance of the federal government upon what appeared to have been a valid state action, are all factors to be considered and lead the Court to the conclusion that the federal interpretation of the effectiveness of state action triggering the re-assertion of federal jurisdiction is and was controlling. “Retrocession” does not imply any particular procedure or action on the part of the states involved and the need for finality and importance of the various competing interests here dictates that the state action presented complies with the federal requirements of “retrocession.” The federal government, having the power to preempt jurisdiction over the Omaha Reservation, had the power to so define and construe the word “retrocession” as to remove from the determination of federal assumption of jurisdiction any question of the procedural validity or invalidity of the state’s act of retrocession. Considering the problems presented by any other holding, the Court holds that the term “retrocession,” as determined by the Secretary of Interior, was fulfilled by such action as the state took in Resolution 37.

To the same effect is Omaha Tribe v. Village of Walthill, D.Neb., 1971, 334 F.Supp. 823, affirmed, 8 Cir., 1972, 460 F.2d 1327, cert. denied, 1973, 409 U.S. 1107, 93 S.Ct. 898, 34 L.Ed.2d 687.

Finally, we consider whether the exercise of criminal jurisdiction by the Suquamish in cases such as this one would interfere with or frustrate the policies of the United States. The sections of the tribal law and order code under which Oliphant is charged do not punish conduct otherwise privileged or authorize actions otherwise illegal under federal law. Thus no explicit conflict exists. Moreover, the federal government has been encouraging Indian tribes to adopt law and order codes, set up tribal courts, and exercise authority over reservation lands. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 U.C.L.A.L.Rev. 535. Tribal criminal jurisdiction over non-Indians, as limited by the Indian Bill of Rights, is a small but necessary part of this policy.⁶

Not only does the law relating to Indian tribes support the jurisdiction here in question; practical considerations also support it. It may not be as true as it once was that “[t]hey [the Indians] owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies.” United States v. Kagama, 1886, 118 U.S. 375, 384, 6 S.Ct. 1109, 1114, 30 L.Ed. 228. But antagonism between reservation Indians and the surrounding populations does persist. History, broken promises, cultural differences and neglect all contribute to it. Reluctance on the part of the States to accord to the Indians rights guaranteed to them by treaties still exists. See, e. g., United States v. Washington, 9 Cir., 1975, 520 F.2d 676, and the concurring opinion of Judge Burns at page 693. Part of the problem no doubt stems from the tax exemptions that Indians enjoy. See, e. g., McClanahan v. Arizona State Tax Commission, supra.

This case well illustrates the need for the jurisdiction here involved. The events occurred on Suquamish Tribal encampment grounds, during a Tribal celebration known as Chief Seattle Days, at a time when a number of Indians were encamped on the Tribal grounds. Counsel for the Tribe describe the situation as follows: (appellees’ brief, pages 27-28):

When the Suquamish Indian Tribe planned its annual Chief Seattle Days celebration, the Tribe knew that

thousands of people would be congregating in a small area near the tribal traditional encampment grounds for the celebration. A request was made of the local county to provide law enforcement assistance. One deputy was available for approximately one 8-hour period during the entire weekend. The tribe also requested law enforcement assistance from the Bureau of Indian Affairs, Western Washington Agency. They were told that they would have to provide their own law enforcement out of tribal funds and with tribal personnel.

Appellant was arrested at approximately 4:30 A.M. The only law enforcement officers available to deal with the situation were tribal deputies. Without the exercise of jurisdiction by the Tribe and its courts, there could have been no law enforcement whatsoever on the Reservation during this major gathering which clearly created a potentially dangerous situation with regard to law enforcement. Public safety is an underpinning of a political entity. If tribal members cannot protect themselves from offenders, there will be powerful motivation for such tribal members to leave the Reservation, thereby counteracting the express Congressional policy of improving the quality of Reservation life.

Federal law is not designed to cover the range of conduct normally regulated by local governments. Minor offenses committed by non-Indians within Indian reservations frequently go unpunished and thus unregulated. Federal prosecutors are reluctant to institute federal proceedings against non-Indians for minor offenses in courts in which the dockets are already overcrowded, where litigation will involve burdensome travel to witnesses and investigative personnel, and where the case will most probably result in a small fine or perhaps a suspended sentence. Prosecutors in counties adjoining Indian reservations are reluctant to prosecute non-Indians for minor offenses where limitations on state process within Indian country may make witnesses difficult to obtain, where the jurisdictional division between federal, state and tribal governments over the offense is not clear, and where the peace and dignity of the government affected is not his own but that of the Indian tribe.

Traffic offenses, trespasses, violations of tribal hunting and fishing regulations, disorderly conduct and even petty larcenies and simple assaults committed by non-Indians go unpunished. The dignity of the tribal government suffers in the eyes of Indian and non-Indian alike, and a tendency toward lawless behavior necessarily follows.

The order appealed from is affirmed.

1 . The dissenting opinion similarly misstates the problem. The question is not whether Congress has conferred jurisdiction upon the tribe. The tribe, before it was conquered, had jurisdiction, as any independent nation does. The question therefore is, did Congress (or a treaty) take that jurisdiction away? The dissent points to no action by the Congress, and no treaty language, depriving the tribe of jurisdiction. The language of the 1791 treaty with the Cherokees, cited in footnote 5 of the dissent, is no more than a waiver of the right that all nations retain, to endeavor, through diplomatic means, to protect their citizens who go or reside abroad. The waiver is limited to those citizens who elect to settle on Indian land. It does not, expressly or by implication, reject the universal rule that one who visits another nation subjects himself to its jurisdiction. It does not imply that absent the treaty provision, the Cherokees would have lacked jurisdiction. Much less does it imply that the jurisdiction of the Cherokees over citizens was to be limited to those who settled on Cherokee lands. A citizen visitor to the Cherokee nation, like the settler, would be subject to its jurisdiction, but, unlike the settler, could invoke the diplomatic protection of the United States.

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

3 . That this measure did not also protect non-Indians against double jeopardy does not indicate that only Indians were susceptible to federal and tribal discipline. Passed during the Kansas-Nebraska debates of 1854, this measure was disposed of rapidly and almost without debate. Section 3 may well have protected only Indians from double jeopardy merely because, in the only case in which a person had suffered both tribal and federal punishment, the defendant happened to be a Creek Indian. 23 Cong. Globe 700-01 (1854).

4 . As stated in the House Report on a companion bill to establish a western Indian territory: “As to those persons not required to reside in the Indian country, who voluntarily go there to reside, they must be considered as voluntarily submitting themselves to the laws of the tribes.” Id. at 18.

5 . The additional authorities cited by Oliphant, F. Cohen, Handbook of Federal Indian Law 148 (1945) and Criminal Jurisdiction of Indian Tribes over Non-Indians, 1970, 77 I.D. 113, withdrawn January 25, 1974, base their conclusions entirely on Kenyon. They are, therefore, only as persuasive as their source.

6 . Our decision in The Quechan Tribe of Indians v. Rowe, 9 Cir., 1976, 531 F.2d 408, is not contrary to our conclusions. It applies the same principles that we apply, but finds in the tribal constitution an express limitation of the jurisdiction of tribal courts to “the trial and punishment of members of the Tribe.” It leaves open the question that we now decide, (see p. 411 & fn. 4)