Associate Justices William Rehnquist and Thurgood Marhsall, around 1978, when Rehnquist wrote the majority opinion and Marshall wrote the dissenting opinion for Oliphant v. Suquamish Indian Tribe. (Images courtesy Wikipedia)

Non-Indians and Tribal Criminal Jurisdiction

Duane Champagne
December 23, 2012

According to current U.S. legal interpretations, non-Indian U.S. citizens are not subject to tribal criminal jurisdiction. A critical well-known case is where the U.S. Supreme Court ruled that the non-Indian defendant Mark Oliphant could not be prosecuted under tribal court jurisdiction. The tribal court assumed jurisdiction of Oliphant because his crimes were committed within the territorial limits of the reservation. Oliphant was charged with drunken disorderly conduct during an annual ceremonial gathering of the Suquamish Tribe.

The arguments given by the U.S. Supreme Court for Oliphant v. Suquamish Indian Tribe, is that the United States in all its dealings, statutes, and treaties with Indian tribes did not intend to place U.S. citizens under the jurisdiction of tribal criminal law or courts. Indian culture and justice institutions are alien to U.S. citizens, and do not always provide protections found in the Bill of Rights. The U.S. must protect the constitutional guarantees of U.S. non-Indian citizens, and therefore prefers to try non-Native citizens for crimes committed on Indian land in U.S. courts rather than in tribal courts.

For example, contemporary Indian courts do not have to provide a defense attorney to a defendant in court. Indian courts and institutions of justice are culturally different from United States laws and justice institutions. U.S. citizens would be at a disadvantage in courts, police, and incarceration proceedings that were offered and maintained in many tribal communities.

One of the increasingly more vexing problems for contemporary tribal governments is consistent federal court rulings that non-Indian citizens are not subject to tribal criminal courts. Tribal courts, police, and governments, under U.S. law do not have the power to bring non-Indians to justice within tribal courts on Indian reservations. Many reservations have more non-Indians than tribal citizens living within reservation boundaries. One of the primary objectives of any government is to provide justice to the people living and working within the government’s territorial boundaries. When a government does not have the direct or collaborative ability to uphold order and justice, then governments can lose power over and support of its constituent citizens.

The U.S. Supreme Court rulings suggest that tribal boundaries do not form places of criminal jurisdiction in the same way that counties, cities, and states do. The boundaries of the U.S. political and jurisdictional system are based on territory. Each county, city, and state of the federal government system has certain assigned jurisdictions and powers. Historically, Indian governments managed all criminal issues arising within their territories. Each tribal nation has its own methods of managing crimes and other transgressions. It was an inherent part of tribal governments exercised since time immemorial.

A double standard with strong assimilative orientations prevails in the management of justice in Indian country. Indians, who are U.S. citizens and tribal citizens, are held accountable in U.S. courts and to U.S. laws, if they commit a criminal act off the reservation. Indian defendants are not sent to their reservation tribal court to stand trial. Many tribal members do not understand the U.S. adversarial court system, often have little knowledge or influence over the laws passed, and often consider U.S. courts, police, and incarceration facilities as culturally alien institutions. Tribal justice standards and methods of restoration are not prevalent in the U.S. courts.

For analogous cultural reasons for which the U.S. Supreme Court protects non-Indian citizens from prosecution in tribal courts, Indian tribal members should have the option to have their cases heard within their relevant tribal courts or traditions for restoring justice. The U.S. Supreme Court abrogated a fundamental principle of territorial organization to deprive reservation tribal courts of jurisdiction over non-Indian citizens who have committed criminal offenses on Indian reservations. Tribal governments are not able to protect Indian citizens from U.S. courts in the same way that United States government protects non-Indian citizens from tribal courts.


Submitted by Anonymous on

Take their power back. Stand up to them and we need to get a backbone. What gives them the right to make decisions when originally they made up this law. We can make up our laws and not abide by them and form a movement called "power of the original people". We need to come together to protect our future Indigenous children. They have no power over us,we just believe and go along with it.

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