Oliphant (the other one) for Bloggies
Apparently no one other than Indians were looking, back in 1978, when Bill Rehnquist, formerly a Hispanic voter hazer for the Arizona Republican Party and then Associate Justice of the United States Supreme Court, and now its Chief Justice, decided to overthrow three hundred years of political accomodation and co-existance, and deny the jurisdictional authority of an Indian tribe to arrest and criminally prosecute a non-Indian United States citizen.
Aside from the fact that Oliphant is the end-point of the fiction that Indians are co-celebrants in the forward progressive march of the law, along with women, blacks, hispanics, jews, the poor, gays and lesbians, what is really interesting about Oliphant is what isn't in it -- the stuff that Rehnquist believed in, but had to elide to isolate Warren Burger and Thurgood Marshall.
Rehnquist reasoned that by virtue of their dependent status, the poisoned fruit of the Marshall Trilogy, that Indian tribes impliedly lacked the ability to "try non-Indians according to their own customs and procedures." In support of this (revolutionary) reading of the jurisdictional sense of the Marshall Trilogy, Rehnquist cited the 1883 opinion of the Court, Ex Parte Crow Dog, which held that in the absence of an express federal statute to the contrary, federal courts lacked jurisdiction to try Indians who had offended against fellow Indians on reservation land.
The passage from Crow Dog Rehnquist quoted in Oliphant is set out below in its entirety. Words in bold are in the original Crow Dog passage which Rehnquist tastefully elided from his opinion in Oliphant:
it is a case where, against an express exception in the law itself that law, by argument and inference only is sought to be extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct according to rules and penalties of which they could have no previous warning, which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have a imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality.
The reason Crow Dog went to the Supreme Court in the first place was that a killing of one Indian by another, when tried in an Indian Court, did not result in a hanging. The Theory of Justice of the Indian Court diverged from that norm. It is worth keeping this in mind when contrasting the Healing Circle Sentencing that Alaskan Tribal Courts have pioneered, with the application of manditory-minimum sentancing for (addictive) substance abuse cases. The legislative sequela of Crow Dog was the passage of the Major Crimes Act, which is why the FBI, easily the most political para-military force operating north of Tegucigalpa, has the run of Indian Country every time a "serious felony" puts them in play.
So why "Oliphant for Bloggies"? Two reasons. Primus, Wampumpeag is an Abenaki corporation. It hosts this blog (and others). Abenaki law governs. Recently a blog lord wrote to inform us that highly acerbic "gang" commentary, a norm prevailing elsewhere, should be the norm here. We differ. We are not surprised to meet friends of Chief Justice Rehnquist -- for his is the voice that says "no special rights for Indians", and in particular "no jurisdiction save that of the States" -- among well-educated, progressive non-Indians. Secundus, we'd like readers to help strike down Oliphant, like Dred Scott, Plessey, and Korematsu. Drop us a note to put your (real) name on a statement. Those committed to a particular candidate in this cycle won't have to give up their man, just Bill Rehnquist's ideal of supremacy, which casts a long, dim shadow on a surprisingly large expanse of this winter's landscape.
The interested reader will want to look at Duro v Reina, Nevada v Hicks and US v Lara to see the reach of Bill Rehnquist's mind.
Credits: Rob WIlliams' "The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Jurisprudenc"e, 1986, WIS. L. REV. A really good read.
Comments
It is hard to believe I went through Duke Law school for my JD and Emory Law school for my LLM and a couple decades of practice yet had failed to encounter Oliphant until today.
I need some time to read Duro, Hicks and Lara but on the surface, Rehnquist's reasoning seems very suspect.
How did he once define a "strict constructionist" judge? As one who "votes against civl right plaintiffs and criminal defendants"?
Posted by: dwight meredith | January 6, 2004 04:25 PM
The funny thing is that, despite its racist rhetoric, Crow Dog is in some ways more consistent with modern judicial norms than Oliphant. The modern norm practically everywhere in the world is that law is territorial rather than personal. Unlike medieval Europe, you can't bring your law with you into another jurisdiction; instead, you are presumed to accept that jurisdiction's law for the duration of your stay.
Crow Dog is consistent with the territorial principle of law; its holding was that crimes committed on an Indian reservation were subject to the laws made by the reservation's inhabitants. In contrast, the Oliphant Court reverted to medieval norms by holding that a non-Indian brings his law with him onto an Indian reservation and can violate local laws with impunity. That's shockingly inconsistent with the law of pretty much any other American jurisdiction - even cities, which are not sovereign, are entitled to arrest and prosecute non-residents for violation of local ordinances.
This means that, although he relied on Crow Dog, Rehnquist reached exactly the opposite conclusion. Crow Dog stands for the proposition that Indians - or anyone else - should not be subject to alien law on their own territory. It didn't create separate systems of Indian and non-Indian personal law that were independent of territorial jurisdiction. Rehnquist's creation of a portable system of personal law, on a one-way basis only, is a very radical reading of Crow Dog and, I think, a profoundly wrong one.
Posted by: Jonathan Edelstein | January 7, 2004 01:15 PM
Jonathon: After reading the cases cited in Eric's post, I can not understand Crow Dog or Oliphant in any way other than the one you suggest.
Posted by: dwight meredith | January 7, 2004 07:32 PM
There is an external context:
In addition to the gunshot deaths of Buddy Lamont and Frank Clearwater, and the disapearence of persons running supplies to the Knee, during the three years following the military action at Wounded Knee, 1973-1976, 64 tribal members were unsolved murder victims, 300 harassed and beaten, and 562 arrests were made, and of these arrests only 15 people were convicted of any crime. Oliphant ended jurisdictional risk to hundreds of potential imunized (tribal) government witnesses. Six AIM members were charged in 1974 with conspiracy, including the count correstponding to "FBI agent killed in car while trespassing on Indian land" (image available).
I don't quite see Rehnquist as an errant junior, stuck with ndn and tax cases. Of course, I'm swayed by the rest of Rehnquist's FIL ouvre, and by the indigenous apprehension of the COINTELPRO period.
Posted by: Eric | January 7, 2004 11:22 PM
BTW, haven't the provincial courts in Saskatchewan also adopted healing circles?
Posted by: Jonathan Edelstein | January 8, 2004 05:56 PM
One of the foci of the tribal law list is tribal law (as opposed to Federal Indian Law (US), various States Law, Aboriginal Law (CA)). I'll ask the list for follow-up on Sentancing Circles.
Next, as Bullwinkle informed Rocky each show, I've another rabbit in my hat. van der Peet. I'll do a piece on that soon.
Before turning to the personal vs territorial jurisdiction issue, it is worth noting that Crow Dog was consistent with settled (pun intended) law, Georgian courts lacked jurisdiction on Cherokee land. The reason Crow Dog is in any casebook from Cohen forward is becaus it motivated the Major Crimes Act, expanding Federal criminal jurisdiction to Indian Country.
I'll have to do a post on the origins of the doctrine of Christian Discovery. I do it every couple of years, so its not a bother. After the awards, neh?
Posted by: Eric | January 8, 2004 09:39 PM
Reading the judgement on Oliphant v. Suquamish, I thought I could see where the reasoning was headed when it noted that the petitioner was a non-Indian resident of the Port Madison Reservation, and that non-Indians were excluded from Suquamish tribal juries. I would have guessed, therefore, that the reasoning would have been that the petitioner would have been unable to get a trial by a jury of his peers. But that, as far as I can make out, doesn't enter into the judgement (not that I would have been comfortable with that reasoning either).
Instead, Rehnquist's argument only holds water on condition that non-Indians are prohibited by federal law from entering (let alone living on) tribal reservations. And I can tell you, such a ruling would not make the (Nisqually down the road from me) very happy, as they're planning to expand the Red Wind Casino.
The injustice of this ruling is patently obvious to me. I'm a non-US citizen living in Washington State, and I don't expect to be exempt from indictment before a local, state or federal court on that basis. Accordingly, I wouldn't expect to e exempt from indictment before a tribal court either if I broke the law on one of the various reservations in these parts.
Posted by: Jurjen | January 11, 2004 08:29 AM