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

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…

(dissenting):

I cannot agree with either the premises or the conclusion of the majority opinion, and therefore I respectfully dissent.

As the majority points out, the question whether Indian courts may exercise jurisdiction over non-Indians has remained unanswered for almost 100 years. The reason is that no federal court has had occasion to pass on the issue since Ex parte Kenyon, 14 Fed.Cas. 353 (No. 7720 W.D.Ark.1878). The very absence of legal authority to support the contentions made on behalf of the tribal court indicates to me that the jurisdiction it attempts to exercise is novel and unusual, and certainly inconsistent with prior practice. 1 While this does not necessarily make the procedure improper, it does call for careful examination of the purpose and history of tribal courts to determine whether an assertion of jurisdiction over non-Indians is consistent with the powers granted by Congress to tribal governments during the last 100 years. Such an examination has persuaded me that Indian courts were not intended to have jurisdiction over non-Indians.

It is important to focus on the precise issue in this case. We are not considering whether Indian tribes may pass…

544 F.2d 1007 Mark David OLIPHANT, Plaintiff-Appellant, v. Edward SCHLIE, Chief of Police of the City of Bremerton, et al., Defendant- Appellees. No. 74-2154. United States Court of Appeals, Ninth Circuit. Aug. 24, 1976. Philip P. Malone (argued), Poulsbo, Wash., for plaintiff-appellant. Barry Ernstoff (argued), Seattle, Wash., for defendant-appellees (Suquamish Tribe). Before DUNIWAY and KENNEDY, Circuit Judges, and BURNS, * District judge. DUNIWAY, Circuit Judge: 1 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…