Year: 1979
Type: article
Abstract: The Supreme Court has sustained the power of Congress to delegate jurisdiction to Indian tribes.United States v. Mazurie, 419 U.S. 544, 556-58 (1975).The Oliphant Court interpreted some treaty provisions providing for tribal punishment of illegal settlers as federal recognition of this power.See notes 94-96 and accompanying text infra.3. This phrase as a reference to the years in which basic federal Indian policy was established was made popular by F. PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE YEARS (1962).4. 435 U.S. at 196. 5.The Oliphant Court stated the issue presented as tribal criminal jurisdiction over non-Indians, rather than over nonmembers of the Suquamish Tribe.Id. at 195.But the Court's opinion in United States v. Wheeler, 435 U.S. 313 (1978), described the Oliphant holding as applying to nonmembers of the tribe.435 U.S. at 326.Because of this discrepancy between contemporaneous opinions, and because the Oliphant defendants were in fact whites, the question of tribal criminal jurisdiction over Indians who belong to other tribes was not determined by Oliphant.Prior authority indirectly supports jurisdiction over nonmember Indians.E.g., 25 C.F.R. § 11.2(c) (1978); United States v. Burland, 441 F.2d 1199, 1200 n.1 (9th Cir.), cert.denied, 404 U.S. 842 (1971); Arizona ex rel.Merrill v. Turtle, 413 F.2d 683 (9th Cir.1969), cert.denied, 396 U.S. 1003 (1970).The treatment of whites who became adopted members of some tribes during the 19th century is discussed in notes 135-49 and accompanying text infra.Because the Court in Oliphant posed the issue as jurisdiction over non-Indians, and because federal law has 15.Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835); Johnson v. McIntosh, 21 U.S. (8 Wheat.)543, 584-88 (1823).16.Two early cases involved transactions occurring under British rule.Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835); Johnson v. McIntosh.21 U.S. (8 Wheat.)543 (1823).Since 1790, this principle has been codified in successive statutes commonly known as the Nonintercourse Acts.The present version is codified at 25 U.S.C. § 177 (1976).See generally Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (Ist Cir.1975).17.This principle is implicit in much of Marshall's language, particularly Worcester v. Georgia, 31 U.S. (6 Pet.) at 561, and later decisions have depended directly on it.See, e.g., Delaware Tribal Business Comm.v. Weeks, 430 U.S. 73, 83-84 (1977); Lone Wolf v. Hitchcock, 187 U.S. 553, 565 ( 1903); United States v. Kagama, 118 U.S. 375, 384-85 (1886).18. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 551-52, 556 (1832).19.Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see also United States v. Kagama, 118 U.S. 375, 374-75 (1886).Later Court decisions extended the guardianship concept to individual Indians.E.g., United States v. Nice, 241 U.S. 591, 600-01 (1916); United States v. Rickert, 188 U.S. 432, 437-38 (1903).Recent cases maintain the concept.E.g., United States v. Antelope, 430 U.S. 641, 647 n.8 (1977); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 174 (1973).20.Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 556, 560-62 (1832).See also United States v. Wheeler, 435 U.S. 313, 322-23 (1978); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 168-74 (1973); Quiver v. United States, 241 U.S. 602, 603-06 (1916); Talton v. Mayes, 163 U.S. 376 (1896); Ex parte Crow Dog, 109 U.S. 556.568-70 (1883); The Kansas Indians, 72 U.S. (5 Wall.) 737, 755 (1867).21.Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 556, 560-62 (1832).22.Both Congress and the executive have treated tribal self-government in Indian
Source: bepress Legal Repository
Author: Richard B. Collins
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2808369870