No. A tribe's court cannot prosecute non-tribal members. When Native American tribes became part of the United States, they gave up certain powers, including the power to punish U.S. citizens who were not part of their tribe. The Court looked at history and saw that the U.S. government had always assumed that only federal or state courts, not tribal courts, could handle crimes committed by non-Native Americans on reservations. Subjecting U.S. citizens to tribal courts, which don't have to follow the U.S. Constitution's Bill of Rights in the same way, would be unfair and inconsistent with the tribes' special status within the U.S.

Yes. Tribes should be able to prosecute anyone who breaks the law on their land. The power to keep order and punish criminals is a basic part of being a self-governing group. Since no treaty or law ever took that power away from the Suquamish Tribe, they should still have it.

No, Indian tribes cannot arrest and punish non-Indians because it goes against their position as nations that are under the power of the United States. When tribes became part of the U.S., they gave up the power to punish non-Indians unless Congress allows it. The Court did not find any proof in history that tribes kept this power, and said it would go against the U.S. government's duty to protect its citizens from unfair treatment.

I disagree because I think that Indian tribes should be able to arrest and punish anyone who breaks their laws on the reservation as part of the ruling power they originally had, unless Congress clearly takes that power away. Being able to keep order on the reservation is a key part of a tribe's sovereignty. Congress has not clearly taken away this power in this case.

In Oliphant, the Court held that tribal courts could not validly assert criminal jurisdiction over non-Indians.

—the Court held that tribes have no criminal jurisdiction over crimes committed by nonmembers within the reservations.

By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States

JUSTICE SOUTER quotes the following passage from Oliphant: "[E] ven ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.... Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress …

—the United States Supreme Court held that Indian tribes lack criminal jurisdiction over non-Indians.

—the Supreme Court held that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and may not assume criminal jurisdiction unless specifically authorized to do so by Congress.

—the Supreme Court held that all Indian tribes lack inherent jurisdiction to try and punish non-Indians for criminal offenses committed within reservation boundaries because "Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers `inconsistent with their status.'"

In the absence of such legislation, however, Indians like other citizens are embraced within our Nation's "great solicitude that its citizens be protected... from unwarranted intrusions on their personal liberty."

—criminal jurisdiction over non-Indians was not part of tribe's "retained inherent powers of government

Oliphant's concern that the tribal court will try nonmembers "not by their peers, nor by the customs of their people, nor the law of the land, but by... a different race, according to the law of a social state of which they have an imperfect conception,"

No. Indian tribal courts do not have inherent criminal jurisdiction over non-Indians. The historical relationship between the United States and Indian tribes, as well as the tribes' dependent status, demonstrates that they implicitly surrendered the power to criminally prosecute citizens of the overriding sovereign. The Court reasoned that from the earliest treaties and congressional acts, it was consistently assumed by all three branches of the federal government that tribes lacked this power. This understanding is supported by the fact that Congress repeatedly legislated to provide federal jurisdiction over crimes committed by non-Indians in Indian country, which would have been unnecessary if tribes already possessed that authority. The Court concluded that the power to punish non-Indians is a power inconsistent with the tribes' status as 'domestic dependent nations,' as it would subject U.S. citizens to courts that may not provide the full protections of the Bill of Rights.

Yes. Indian tribes retain the inherent sovereign power to try and punish all persons, including non-Indians, who commit offenses against tribal law on their reservations, unless that power is affirmatively withdrawn by treaty or statute. The power to preserve order on the reservation is a fundamental aspect of the sovereignty that the tribe originally possessed and never surrendered.

No, Indian tribes do not have inherent criminal jurisdiction to try and punish non-Indians, because the exercise of such jurisdiction is inconsistent with their status as dependent sovereigns subject to the overriding authority of the United States. By submitting to the sovereignty of the United States, tribes necessarily give up their power to try non-Indian citizens except in a manner acceptable to Congress. The Court found no historical evidence that tribes retained such jurisdiction and noted that tribal assertion of criminal jurisdiction over non-Indians would conflict with the overriding sovereign interests of the United States in protecting its citizens from unwarranted intrusions on their personal liberty. Therefore, the judgments of the lower courts are reversed.

I dissent because I believe that Indian tribes, as an aspect of their retained inherent sovereignty, have the power to try and punish all persons who commit offenses against tribal law within the reservation, absent affirmative withdrawal of that power by Congress. The power to preserve order on the reservation is essential to the sovereignty that tribes originally possessed. There has been no express withdrawal of this power by treaty or statute in this case.

Oliphant v. Suquamish Indian Tribe

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