In August 1973, Suquamish tribal police were called to break up a fight during the annual Chief Seattle Days on the reservation on the Kitsap peninsula; one of the combatants slugged a deputy, so the tribal police arrested him. A local lawyer challenged the authority of the tribe to arrest a non-Indian on the reservation, which is only a ferry ride and a short drive from Seattle. In 1978, the case went all the way to the Supreme Court, which ruled, in Oliphant v. Suquamish Indian Tribe, that the tribe only had the power to police its own members on the reservation.
It wasn’t as if there was an alternative for keeping order at the festival — in fact, the Kitsap County sheriff had specifically declined to send a deputy to the celebration. But, in a ruling that harked back to the late 19th century, when it would have been unthinkable to give Native Americans the power to arrest white people, William Rehnquist used a selective reading of legal history to declare that Congress had never intended to give tribes the ability to police non-Indians on their reservations, even in the absence of other effective law enforcement.
“Reclaiming the Reservation” by University of Washington professor Alexandra Harmon, uses the Oliphant decision as a frame for reviewing the contradictory legal history of white/Indian relations on reservations. As a legal history, it may be tough going for the general reader, but it illuminates unresolved issues in the relationship between the United States and the indigenous peoples of this land.
Reservations were usually set up to separate and isolate tribes from white settlers, but that changed by the end of the 19th century, when the federal government started pursuing a policy of privatizing the formerly communal reservations and selling much of them off to non-Indians.
This meant that tribes were faced with maintaining order and preserving natural resources in the face of challenges from non-Indian property owners and visitors. Immigrants usually accept that they have to abide by the laws of their host country, but whites on Indian reservations assumed that tribal regulations didn’t apply to them. It didn’t help that tribal governments themselves were mostly in disarray until the middle of the 20th century; the federal Bureau of Indian Affairs (BIA) effectively controlled what happened on reservations.
With the New Deal and the War on Poverty, the federal government started encouraging Indian self-governance. Even then, the laws were often ambiguous, but Indians remembered they had once been self-governing nations and, in the absence of effective law enforcement and land-use regulation, proactively started enacting ordinances to protect forests, fisheries, coastlines and, eventually, to address criminal activity. Given funding and legal help, they made a point of formalizing their governing structures so that they would be consistent with other local governments in the U.S.
One leader in this area was the Quinault tribe, north of Aberdeen. The tribe faced constant challenges from non-Indian fishermen, loggers and developers, who took advantage of the absence of state law enforcement to clear-cut and overfish in ways that would not have been allowed outside the reservation boundaries. The Quinaults proactively enacted regulations on fishing, logging and building to protect their large and remote reservation on the Washington coast.
The Oliphant decision only addressed arrests for criminal charges. Subsequent court decisions still allow tribes to have civil and regulatory control of their reservations. Tribes have worked to find other paths to effectively enforce the rule of law on the reservation; many tribes partner with local governments to allow them to arrest non-Indians and turn them over to county authorities.
Harmon points out, though, that the court cases that decide how tribes can govern their reservations are all based on legal reasoning in U.S. courts — that is, they look at the issues through the eyes of federal authorities and only rarely at how these issues look from the Indian side. A crucial question that has never been resolved is whether tribes, which were considered “sovereign” nations at the beginning of the colonization of the U.S., still retain aspects of that sovereignty.
As Harmon puts it, “Opponents of tribal sovereignty ... argued that the US Constitution ... guaranteed and required legal equality or uniformity for Indians and non-Indians, thus precluding rights for Indians that non-Indians did not enjoy ... This argument disregarded the fact that ... the United States is a federation of sovereign states. Americans have accepted and generally cherished the states’ power to make and enforce separate laws ... and apply them to people who cannot vote there. However ... Indian tribes’ claim of comparable sovereign power was an impediment to the settler colonial project.”
Many Americans recognize that Indian tribes were unfairly dispossessed by the U.S. and white settlement. However, most still have difficulty understanding why present-day tribes expect to exercise control over the territories and resources that were guaranteed to them as the dispossession took place. But there was no time limit on the agreements they signed. The challenge facing tribes like the Suquamish and the Quinaults is as much a political as a legal one. They have to find a way to convince local, state and federal governments to respect their governments and their authority in their own lands.
Read more in the Mar. 25-31, 2020 issue.