By: Tatiana Avdienko ’28
Volume XI – Issue I – Fall 2025
I. INTRODUCTION
On August 19, 1973, tribal police on the Port Madison Indian Reservation arrested Mark Oliphant for assaulting an officer and resisting arrest. [1] He was charged before the Provisional Court of the Suquamish Indian Tribe, incarcerated, and released. [2] Before his trial, Oliphant petitioned for a writ of habeas corpus to the United States District court under the belief that Indian tribal courts have no jurisdiction over non-Indians. [3] Oliphant’s case made its way to the Supreme Court, which in 1978 ruled that tribal courts could not try non-Indians, even if the crimes were committed on tribal land or against a tribal member. [4]
The ruling in Oliphant v. Suquamish set a precedent for future Supreme Court cases regarding tribal sovereignty that led to further restrictions on tribal courts, often hindering the already ineffective justice process on tribal land. Additionally, the ruling has directly compounded the disproportionate violence that tribal members face, along with the continuation of the Missing and Murdered Indigenous Women Crisis in the United States. While more recent laws have attempted to give more power back to tribal courts in criminal cases, the system created as a result of Oliphant v. Suquamish remains a significant roadblock in tribal sovereignty and criminal jurisdiction. Amidst tribal jurisdictional restrictions, the navigation of an increasingly complex law enforcement relationship with the United States government has disillusioned Indigenous communities seeking to bring victims to justice.
II. HISTORY OF INDIGENOUS TRIBAL JURISIDICTION
The structure and regulations of tribal courts have changed alongside the federal government’s policies throughout the formation of the United States. With the fluctuation of United States political and social climates over time, decisions regarding tribal jurisdiction frequently undermine previous successes. Currently, criminal cases on tribal land involve a patchwork of tribal courts, state law enforcement, and federal bodies. Understanding the history of this disorganized system is crucial to dissecting the negative impact of Oliphant.
i. Ex Parte Crow Dog
The first tribal courts were created in 1883 after a Lakota tribal member, Crow Dog, murdered fellow tribal member, Spotted Tail, in South Dakota. While the victim’s family was satisfied with traditional Lakota restitution paid by Crow Dog, the dissatisfaction of the federal government prompted a more severe punishment. [5] Alongside Ex Parte Crow Dog and similar disputes, the growing desire to “civilize” Indigenous peoples and ban religious practices prompted The Department of the Interior to create the Court of Indian Offenses to handle disputes and illegal activity on tribal land. [6] The federal government’s intrusion onto tribal practices–both religious and judicial– underscores how tribal systems have been erased due to the interest of colonial powers, reaffirming that the United States has historically operated with the goal of assimilating Indigenous people and societies into United States order. [7] Their decision to establish a formal federal body forcing tribal law to reflect United States criminal proceedings standardized Indigenous justice practices, eradicating centuries of distinct tribal practices.
ii. Indian Reorganization Act
As the federal government’s policies rapidly changed in the 1930s, so did their relationship with tribal jurisdiction. During Franklin D. Roosevelt’s “New Deal” policy era, Congress passed the Indian Reorganization Act (IRA) that created new self-governing powers for Indigenous tribes. The IRA secured new land rights laws for tribes, encouraged the establishment of tribal constitutions and self-governing practices, and even established Indigenous preference for job hiring in the Bureau of Indian Affairs. [8] The passage of the IRA significantly modified relations between tribes and the federal government, giving more opportunity for tribes to strengthen their governing practices and sovereignty. However, in certain states, their success would be hindered by the passage of Public Law 280.
iii. Public Law 280
In 1953, Public Law 280 (PL 280) further changed the landscape of criminal jurisdiction in tribes and, in some ways, served as a setback for the justice system in Indigenous communities. In the law, Congress gave the state governments of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin criminal jurisdiction over those on tribal reservations. [9] These six states were the first to have any involvement with tribal criminal jurisdiction, since prior to PL 280, the federal government was the entity that primarily handled these issues since the first treaties. [10] PL 280 is often used as a rationale to deny tribal law enforcement funding, highlighting how it further narrowed the sovereignty of select tribes. [11] PL 280 creates obstacles for efficient law enforcement on tribal land, which the Supreme Court case Oliphant v. Suquamish augmented.
III. OLIPHANT v. SUQUAMISH
In 1978, the Supreme Court decided in a monumental case for tribal sovereignty and criminal jurisdiction. The rationale behind Oliphant v. Suquamish has made a profoundly negative impact on how justice is administered on tribal land. The change in jurisdictional rights has served as a basis for further stripping tribal courts of their jurisdictional sovereignty and exacerbated criminal acts against Indigenous groups in the United States.
Petitioners Mark David Oliphant and Daniel B. Belgarde were non-member, non-Indigenous residents of the Port Madison Reservation in Washington state. In 1973, Oliphant was arrested for assaulting tribal law enforcement during a tribal celebration and resisting arrest; Oliphant was incarcerated and later released on his own recognizance. That same year, Belgarde was arrested after colliding with a law enforcement vehicle in a high-speed race on a Reservation highway. He was arraigned and charged by a tribal court with reckless endangerment and damaging tribal property. Both Oliphant and Belgarde petitioned for a writ of habeas corpus, arguing that since they were non-Indigenous, the Suquamish Indian Provisional Court had no criminal jurisdiction over them. [12]
In a 6-2 decision with the majority opinion by Justice William Rehnquist, Oliphant’s assertion was upheld that tribal courts had no criminal jurisdiction over non-Indigenous people. [13]
The Supreme Court provided three main points that influenced their ruling. Their first point stated that the historical presumption that tribal jurisdiction did not extend to non-Indians has been shared by all three branches of government since its foundation. [14] However, the only treaty out of 366 that mentions tribes having no jurisdiction over non-Indigenous people is “the United States’ 1830 treaty with the Choctaws [which] mentioned the tribe's wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe on any of their national regulations.’” [15] Rehnquist’s majority opinion was a manipulation of limited historical evidence that made a broad generalization based off of the Choctaws’ treaty. The second point is based on the Treaty of Point Elliott, which was a treaty signed by the Suquamish tribe and United States government. [16] The treaty states that the Suquamish “acknowledge their dependence on the Government of the United States” and agree to not “shelter or conceal offenders against the law of the United States, but to deliver them up to the authorities for trial.” [17] The Supreme Court interpreted this to signal that any non-Indigenous criminal offenders on tribal land are to be prosecuted under the United States government.
The Supreme Court’s third point–and arguably the most influential portion of the majority argument–involved the “intrinsic limitations” that tribal governments face. [18] The majority argued that limitations stem from the relinquishing of their sovereignty and limit their rights of governing anyone except federally-recognized Indigenous tribal members; the United States seeks to protect its citizens from intrusions on personal liberties, and the ability of the United States to try and punish criminals is an essential incursion on the federal government’s personal liberty to protect this goal. The United States forced tribes to surrender their jurisdictional abilities since trying criminals is in the interest of Congress. [19] The Supreme Court’s decision in Oliphant v. Suquamish reflects centuries of jurisdictional clashes between the United States and tribal governments. With the combination of historical precedent through various tribal treaties, Rehnquist’s argument set the stage for a decision that stripped tribes of the ability to prosecute countless crimes in their own courts, opening the door to a deeply complex and inefficient dependency system on the United States. Additionally, by solidifying tribes’ “dependence” on the United States for law enforcement matters, the Supreme Court set a precedent that would later be used to further revoke sovereignty from Indigenous communities, leading to numerous negative impacts on Indigenous victims of crime.
IV. INFLUENCE ON OTHER CASES
After the decision limiting tribal sovereignty in Oliphant v. Suquamish, the Supreme Court heard numerous cases involving tribal jurisdiction for which their decision in Oliphant played a pivotal role. With the new post-Oliphant landscape, the Supreme Court's rulings solidified their belief that tribal sovereignty was a decaying force. [20]
i. Wheeler v. United States (1978)
In Wheeler v. United States, decided the same year as Oliphant v. Suquamish, a member of the Navajo tribe was sentenced in a tribal court for “contributing to the delinquency of a minor.” [21] For the same incident, he was indicted by a federal grand jury under the charge of statutory rape. [22] The respondent claimed that his simultaneous federal trial and tribal conviction violated the Fifth Amendment’s double jeopardy clause. [23] The double jeopardy clause states that no person shall “for the same offence be twice put in jeopardy of life or limb,” meaning that no person can be tried for the same crime twice. [24] However, the Court ruled the Navajo nation retains a right as a sovereign to punish tribal criminals; since the United States and the Navajo nation are two separate sovereigns, they cannot violate the double jeopardy clause. [25] While not a restriction placed on tribes similar to the Oliphant case, Wheeler sought to further define any potential discrepancies in tribal jurisdiction left by Oliphant. The further clarification of tribal sovereignty demonstrates the Rehnquist Supreme Court’s influence on defining the bounds of tribal sovereignty in relation to the power of United States courts, establishing tribal courts as separate entities that existed outside of the United States justice system. However, the continued uncertainty on which demographic individual tribes can prosecute continued to be a contested issue even into the 1990s, with Duro v. Reina.
ii. Duro v. Reina (1990)
Arguably one of the most severe setbacks for Indigenous sovereignty, Duro v. Reina (1990) restricted tribal jurisdiction by using Oliphant as its predecessor. Duro, a member of the Cahuilla Mission Indians, shot and killed a member of the Pima-Maricopa tribe while living on their reservation, which prompted the Pima-Maricopa tribe to charge Duro with the illegal firing of a weapon. [26] Duro filed a writ of habeas corpus, stating that the tribal charge was racial discrimination under the Indian Civil Rights Act and that since he was a non-member of the tribe, the Oliphant decision should have excluded him from tribal court jurisdiction. [27] In the decision, the Supreme Court held that a tribal court has no criminal jurisdiction over Indigenous people who are not part of that same tribe. [28] Their rationale was based on the “implicit divestiture” argument from Oliphant, which stated that tribes have no power to try non-members since they surrendered to the overruling sovereignty of the United States. [29] Once only based on a criminal’s membership in any federally recognized tribe, tribal jurisdiction was now even further limited to within the bounds of their own tribal members. The harsh attack on tribal sovereignties in Duro prompted an amendment to the 1968 Indian Civil Rights Act known as the “Duro-fix;” the 1991 “Duro-fix” overturned the previous Supreme Court decision “by adding the language ‘...and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians’ to the definition of ‘powers of self-government’”. [30] While now overturned, Duro v. Reina demonstrates how the rationale used in Oliphant was and can continue to be weaponized to further strip tribes of their sovereignty and ability to bring offenders to justice. The “Duro-fix” enabled tribal courts further independence from the federal government to prosecute crimes that call for a prompt local response, such as domestic violence between federally-recognized tribal members. [31] However, the fix has had little impact on mitigating the Missing and Murdered Indigenous Women Crisis, a result of the United States’ handling of tribal crime and jurisdiction.
V. IMPACT ON THE MISSING AND MURDERED INDIGENOUS WOMEN CRISIS
The restrictions placed against tribal courts in Oliphant v. Suquamish have intensified Indigenous struggles, including the Missing and Murdered Indigenous Women (MMIW) Crisis. Across the United States, Indigenous populations face disproportionate amounts of violence. A 2016 study by the National Institute of Justice revealed that over 84.3 percent of American Indian & Alaska Native women have experienced a form of violence. [32] Additionally, 97 percent of these cases had non-Indigenous assailants, meaning that tribal courts could not prosecute in most cases involving Indigenous people. [33] In regards to reporting cases, there were 5,712 reports of missing Indigenous women and girls, but the National Missing and Unidentified Persons System logged only 116 of those reports. [34] The disproportionate amount of Indigenous women who have experienced violence coupled with faulty data in prominent databases signals a lack of resources and urgency given to this crisis by the United States government. With tribal courts disempowered by numerous legislative restrictions, they have no choice but to be dependent on systems of justice that do not treat the MMIW crisis with the urgency it deserves. This system of “forced reliance” harms Indigenous victims of crimes since state and federal priorities often differ from tribal priorities. [35]
In 2022, the Biden administration’s reauthorization of the Violence Against Women Act (VAWA) signaled some progress towards restoring criminal jurisdiction over those directly harming tribal members. The act states that “participating tribes” may exercise “special domestic violence criminal jurisdiction” over defendants who commit acts of domestic violence or violate protection orders on tribal land, regardless of their race. [36] “Participating tribes” is defined as individually approved tribes that apply to the program, capped at 30 participating tribes, or an inter-tribal partnership that allows a workaround of the cap. [37] The jurisdictional outline in VAWA manifests as an amendment in the Indian Civil Rights Act, demonstrating its crucial significance to the rights of Indigenous people to seek justice. [38] In direct contradiction to the ruling in Oliphant v. Suquamish, Congress allows a select number of tribes to prosecute non-Indian criminals in tribal courts. However, the lack of uniformity across the United States may place nonparticipating tribes at a disadvantage, with many tribes still dependent on state or federal governments (depending on their state of residence).
More recently, the FBI launched a third round of “Operation Not Forgotten,” in which 60 personnel will rotate and spend six months at various locations addressing missing and murdered Indigenous persons cases. An expansion of the first Trump administration’s efforts to address the crisis, this program has supported over 500 investigations in its duration. [39] While smaller efforts such as VAWA and FBI programs are providing some relief to tribal communities, true change may only derive from a larger legislative move such as a full overturning of Oliphant.
VI. CONCLUSION
Oliphant v. Suquamish has been the subject of criticism from legal scholars, activists, and Indigenous communities seeking to end the challenges exacerbated by tribal dependence on state and federal governments. By setting a precedent for other Supreme Court cases, Oliphant has been a tool for restricting the power of tribal courts in an unproductive and dangerous manner. The case continues to harm Indigenous communities in their efforts to minimize the criminal crises on tribal lands. With recent 21st century policy changes, Indigenous communities can begin to hope for a future where tribes have the resources to mitigate crimes against Indigenous people. For now, victims of crime on tribal land must continue to navigate an increasingly complex jurisdictional landscape.
Endnotes
[1] “Oliphant v. Suquamish: Forty Years Ago Today.” Native America: A History, March 1, 2018. https://michaelleroyoberg.com/uncategorized/oliphant-v-suquamish-thirty-eight-years-ago-today/.
[2] Oliphant v. Schlie, 544 F.2nd 1007 (9th Cir. 1976) https://law.justia.com/cases/federal/appellatecourts/F2/544/1007/239392/.
[3] Oliphant v. Schlie, 544 F.2nd 1007 (9th Cir. 1976)
[4] Skibine, A. T., and M. B. Oliviero. “Law Enforcement on Indian Reservations After Oliphant v Suquamish Indian Tribe - An Identification of the Problems and Recommendations for Remedies | Office of Justice Programs.” NCJRS Virtual Library. Accessed November 20, 2025. https://www.ojp.gov/ncjrs/virtual-library/abstracts/law-enforcementindian-reservations-after-oliphant-v-suquamish.
[5] “Tribal Courts History.” Mashantucket Pequot Tribal Nation. Accessed November 6, 2025. https://www.mptnnsn.gov/government/tribal-court/tribal-courts-history/.
[6] “Timeline- 1883: Courts of Indian Offenses Established.” U.S. National Library of Medicine. Accessed November 20, 2025. https://www.nlm.nih.gov/nativevoices/timeline/364.html.
[7] “Tribal Courts History.” Mashantucket Pequot Tribal Nation.
[8] “Indian Reorganization Act (1934).” Indian Reorganization Act (1934) | Tribal Governance. Accessed November 20, 2025. https://www.uaf.edu/tribal/academics/112/unit-2/indianreorganizationact1934.php.
[9] “Tribal Crime And Justice: Public Law 280.” National Institute of Justice. Accessed November 6, 2025. https://nij.ojp.gov/topics/articles/tribal-crime-and-justice-public-law-280#citation--0.
[10] “Tribal Crime And Justice: Public Law 280.” National Institute of Justice.
[11] “Tribal Crime And Justice: Public Law 280.” National Institute of Justice.
[12] Oliphant v. Suquamish, 435 U.S 191, 195 (1978). https://www.law.cornell.edu/supremecourt/text/435/191 .
[13] Oliphant v. Suquamish, 435 U.S 191, 195 (1978). https://www.oyez.org/cases/1977/76-5729.
[14] Royster, Judith. “Oliphant and Its Discontents: An Essay Introducing the Case for Reargument before the American Indian Nations Supreme Court .” TU Law Digital Commons , 2003. https://ospi.k12.wa.us/sites/default/files/2023-10/oliphantanditsdiscontents__anessayintroducingthecasefor.pdf.
[15] Barsh, Russel Lawrence and James Youngblood Henderson, "The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark" (1979). Minnesota Law Review. 2285. https://scholarship.law.umn.edu/mlr/2285 https://scholarship.law.umn.edu/cgi/viewcontent.cgi?params=/context/mlr/article/3284/&path_info=uc.pdf
[16] Royster, Judith. “Oliphant and Its Discontents: An Essay Introducing the Case for Reargument before the American Indian Nations Supreme Court .”
[17] Treaty of Point Elliott, Jan. 22, 1855, 12 Stat. 977. https://goia.wa.gov/tribal-government/treaty-point-elliott-1855.
[18] Royster, Judith. “Oliphant and Its Discontents: An Essay Introducing the Case for Reargument before the American Indian Nations Supreme Court .”
[19] Oliphant v. Suquamish, 435 U.S 191, 195 (1978). https://supreme.justia.com/cases/federal/us/435/191/.
[20] Schilfgaarde, Lauren van. “Tribal Revestiture.” Stanford Law Review, August 12, 2025. https://www.stanfordlawreview.org/online/tribal-revestiture/.
[21] United States v. Wheeler, 435 U.S. 313 (1978). https://supreme.justia.com/cases/federal/us/435/313/.
[22] United States v. Wheeler, 435 U.S. 313 (1978).
[23] United States v. Wheeler, 435 U.S. 313 (1978). https://scholarlycommons.law.wlu.edu/casefiles/496/.
[24] “Overview of Double Jeopardy Clause | Constitution Annotated.” Library of Congress. Accessed November 7, 2025. https://constitution.congress.gov/browse/essay/amdt5-3-1/ALDE_00000858/.
[25] United States v. Wheeler, 435 U.S. 313 (1978).https://tile.loc.gov/storageservices/service/ll/usrep/usrep435/usrep435313/usrep435313.pdf.
[26] Angela, Patrick. “Duro v. Reina, 495 U.S. 676 (1990): Case Brief Summary.” Quimbee. Accessed November 20, 2025. https://www.quimbee.com/cases/duro-v-reina.
[27] Duro v. Reina, 495 U.S. 676 (1990). https://caselaw.findlaw.com/court/us-supreme-court/495/676.html.
[28] Wilson, Margaret. “Duro v. Reina: The Last Nail in the Coffin for Indian Tribal Sovereignty.” Utah Law Review 1990, no. 3 (January 1, 1991). https://dc.law.utah.edu/cgi/viewcontent.cgi?article=2221&context=ulr.
[29] Wilson, Margaret. “Duro v. Reina: The Last Nail in the Coffin for Indian Tribal Sovereignty.”
[30] “Indian Civil Rights Act.” Indian Civil Rights Act Resources on the Tribal Court Clearinghouse. Accessed November 6, 2025. https://www.tribalinstitute.org/lists/icra.htm#:~:text=Congress%20overturned%20the%20Duro%20decision,.%22%20This%20Congre ssional%20Duro%2Dfix.
[31] Fletcher, Matthew L. M. “Affirmation of Tribal Criminal Jurisdiction Over Nonmember American Indians.” Michigan Bar Journal, July 2004. https://www.michbar.org/file/barjournal/article/documents/pdf4article717.pdf.
[32] Rosay, André B. “Violence Against American Indian and Alaska Native Women and Men.” National Institute of Justice, June 1, 2016. https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-womenand-men.
[33] Rosay, André B. “Violence Against American Indian and Alaska Native Women and Men.”
[34] “Missing and Murdered Indigenous People Crisis.” U.S. Department of the Interior | Indian Affairs. Accessed November 6, 2025. https://www.bia.gov/service/mmu/missing-and-murdered-indigenous-people-crisis.
[35] Fletcher, Ezekiel J.N. “Trapped in the Spring of 1978: The Continuing Impact of the Supreme Court’s Decisions in Oliphant, Wheeler, and Martinez.” The Federal Lawyer, March 2008. https://www.fedbar.org/wpcontent/uploads/2008/03/feature2-0308-pdf-1.pdf
[36] “2013 and 2022 Reauthorizations of the Violence Against Women Act (VAWA).” Tribal Justice and Safety | U.S. Department of Justice, April 7, 2023. https://www.justice.gov/tribal/2013-and-2022-reauthorizations-violenceagainst-women-actvawa#:~:text=The%20Violence%20Against%20Women%20Act%20(VAWA)%20Reauthorization,Stalking%20*%2 0Criminal%20violations%20of%20protection%20orders.
[37] “Violence Against Women Act 2022 Reauthorization - Alaska Pilot Program.” Tribal Justice and Safety | U.S. Department of Justice, August 9, 2024. https://www.justice.gov/tribal/vawa-2022-alaska-pilot-program.
[38] “Indian Civil Rights Act.” Indian Civil Rights Act Resources on the Tribal Court Clearinghouse. Accessed November 20, 2025. https://www.tribalinstitute.org/lists/icra.htm#:~:text=Congress%20overturned%20the%20Duro%20decision,.%22%20This%20Congre ssional%20Duro%2Dfix.
[39] “Justice Department to Surge Resources to Indian Country to Investigate Unresolved Violent Crimes.” Office of Public Affairs | Department of Justice, April 29, 2025. https://www.justice.gov/opa/pr/justice-department-surgeresources-indian-country-investigate-unresolved-violent-crimes.