BD: There’s a long history to this because when the Supreme Court ruled in 1978, in Oliphant vs. Suquamish Indian Tribe, that Indian tribes did not have the authority to prosecute non-Indians. There was an effort on the part of tribes and their advocates to get that decision overruled. They went to Congress to get this decision overruled. Didn’t happen.
Over a decade later, in 1990, the Supreme Court had another opportunity to visit this same issue in terms of examining the scope of tribal power in a case called Duro vs. Reina. This case involved a challenge by a non-member Indian, so it’s a person who’s a Native person but it’s one who’s from a different tribe than the one who’s prosecuting him.
He made an argument similar to Oliphant in that he was a political outsider and therefore could not participate in the political life in the tribe and therefore the tribe should have no authority over him. The Supreme Court agreed, and in that case, written by Justice Kennedy, the Court outlined why it was important for tribes to be able to prosecute their own members and no one else.
Under the Court’s rationale, limiting tribal criminal jurisdiction to its members was justifiable on grounds that those members have consented to government of the tribe and have in least in theory the power, or right, to change the government. They can alter the form of justice being adjudicated in their court system.
Political outsiders don’t have that opportunity. And so the Court felt that was a rational argument for construing the scope of tribal power in that way. Within about six months, tribal advocates went to Congress asking, as they had done in 1978 after Oliphant, that this case, and Oliphant, both be repealed legislatively.
And the reason of course is to say that beyond the assault on tribal self-governance, this was creating a jurisdictional patchwork that left too many gaps where people fell through the cracks and it would be unclear as to who could prosecute in a particular case, and the prospect of offenders going unprosecuted was too great to allow this to go anywhere.
This is where there’s a Dartmouth connection. At the time, this is the late 1990s, one of the most powerful Senators was Slade Gorton, a Dartmouth graduate, who was at one time the Attorney General for the State of Washington. He was the Attorney General during the time that Oliphant was decided.
He was now a US Senator representing Washington and, I think at that time, chaired the Senate Finance Committee. He expressed grave reservations about any effort to repeal Oliphant. He didn’t care if Duro vs. Reina were overruled but he made it very clear no bill would go forward if Oliphant were included in its repeal. He saw Oliphant as one of the lasting major accomplishments of his administration, which was to secure that kind of limit on tribal constraints. If you wanted positive from his committee, you didn’t want to offend Gorton. And so, for political reasons, they dropped the effort to overrule Oliphant and they proceeded as a Duro overrule only.
So there was an effort to overrule Oliphant. This goes way back, that people have been trying to get Oliphant repealed, principally for the distrust it reflects towards Indian tribes. It stands as a commentary that the brand of justice Indian tribes produce towards their members or anyone else is inferior to US Federal or State justice and tribes have been mounting this argument ever since to say that a system of tri-federalism, with State, Federal and Tribal layers of government, that this shows profound disrespect for tribal self-governance.
It’s been a hard argument for them to make, chiefly because of the concern that they are not subject to the protections and constraints of the US Constitution, there’s still the possibility that an offender may not get the full protections he or she may deserve.
Now Congress did write a law in 1968 called the Indian Civil Rights Act that provides most, but not all, of the protections of the Bill of Rights. The Oliphant case made note of that but they didn’t discuss if the Indian Civil Rights Act represented an appropriate compromise, that is, that was Congress’ response to say “we’re okay with individuals going to trial in front of a tribal court so long as they have the basic principles of justice respected – due process, equal protection and writ of habeas corpus, that is, if they want to challenge the legality of what happened in tribal court, they have a ready-made ticket to go to Federal court and have that challenged.
Many folks argued, including myself, that that was a sufficient compromise. That’s the bargain in terms of individuals being subjected to tribal law but having the fallback of federal oversight in the event of an injustice.
This legislation, the VAWA reauthorization with these provisions allowing for more expansive tribal rule, goes much further. It imposes basically all of the Constitutional protections an individual would have and some say goes even further than that because of the oversight for Federal review and that in may be in essence a bit of overkill that they’ve swung far to the other side.
We’ll see how it plays out, but the long and short of it is that there have been efforts well into 30-plus years to overrule Oliphant and that’s what makes this legislation momentous. It finally worked but it’s a limited, a very limited overrule. Most of Oliphant is intact. It means no broad-based criminal jurisdiction with the exception of this sliver of authority that has been recognized in VAWA.
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