Wampum

The nature and circumstances of this case strongly reinforce this rule of interpretation in its present application. It is a case involving the judgment of a court of special and limited jurisdiction, not to be assumed without clear warrant of law. It is a case of life and death. 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 an 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. It is a case, too, of first impression, so far as we are advised; for, if the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in sections 2145 and 2146 of the Revised Statutes were first enacted in section 25 of the Indian intercourse act of 1834. 4 St. 733. Prior to that, by the act of 1796, (1 St. 469,) and the act of 1802, (2 St. 139,) offenses committed by Indians against white persons, and by white persons against Indians, were specifically enumerated and defined, and those by Indians against each other were left *572 to be dealt with by each tribe for itself, according to its local customs. The policy of the government in that respect has been uniform. As was said by Mr. Justice MILLER, delivering the opinion of the court in U. S. v. Joseph, 94 U. S. 614, 617:

"The tribes for whom the act of 1854 was made were those semi-independent tribes whom our government has always recognized as exempt from our laws, whether within or without the limits of an organized state or territory, and, in regard to their domestic government, left to their own rules and traditions, in whom we have recognized the capacity to make treaties, and with whom the governments, state and national, deal, with a few exceptions only, in their national or tribal character, and not as individuals."

The writs of habeas corpus and certiorari prayed for will accordingly be issued.

This is Rehnquist's greatest work, the core of Oliphant. I've made bold the portions of the original text that Rehnquist didn't dare try to get past Marshall and Burger. The art here is that the black letter law and precident obviously held that Tribal Courts had jurisdiction over non-members, whether Indian or non-Indian, and Rehnquist turned this into the "rationale" why Tribal Courts did not have jurisdiction over non-members, whether Indian or non-Indian.

Great acts show great daring, even the bad ones.