Oliphant V. Suquamish Indian Tribe - Effects

Effects

In 1990 the U.S. Supreme Court extended the Oliphant decision to hold that tribes also lacked criminal jurisdiction over Indians who weren't members of the tribe exercising jurisdiction in Duro v. Reina. Within six months, however, Congress abrogated the decision, by amending the Indian Civil Rights Act to affirm that tribes had inherent criminal jurisdiction over nonmember Indians. In 2004, the Supreme Court upheld the constitutionality of this legislation in United States v. Lara.

Scholars have extensively criticized the decision. According to Professor Bethany Berger, "By patching together bits and pieces of history and isolated quotes from nineteenth century cases, and relegating contrary evidence to footnotes or ignoring it altogether, the majority created a legal basis for denying jurisdiction out of whole cloth." Rather than legal precedent, the holding was "dictated by the Court's assumptions that tribal courts could not fairly exercise jurisdiction over outsiders and that the effort to exercise such jurisdiction was a modern upstart of little importance to tribal concerns. Professor Philip Frickey describes Oliphant, along with the subsequent decisions limiting tribal jurisdiction over non-Indians, as rooted in a “normatively unattractive judicial colonial impulse,” while Professor Robert Williams condemns the decision as "legal auto-genocide" According to Dr. Bruce Duthu, the case showed "that the project of imperialism is alive and well in Indian Country and that courts can now get into the action." Professor Duthu continues

"The Oliphant Court essentially elevated a local level conflict between a private citizen and an Indian tribe into a collision of framework interests between two sovereigns, and in the process revived the most negative and destructive aspects of colonialism as it relates to Indian rights. This is a principal reason the decision has attracted so much negative reaction...Oliphant's impact on the development of federal Indian law and life on the ground in Indian Country has been nothing short of revolutionary. The opinion gutted the notion of full territorial sovereignty as it applies to Indian tribes."