Implied Limitation on the Jurisdiction of Indian Tribes

In 1978 the Supreme Court in Oliphant v. Suquamish Indian Tribe held that the retained sovereignty of Indian tribes over tribal reservations does not include the power to punish non-Indians who commit offenses against tribal law.' Based on a number of facts and premises, the Court concluded that it had been assumed from the beginning that the tribes lack this authority except where expressly recognized or conferred by treaty provision or act of Congress. The Court also relied on the fact that during the formative years few Indian tribes had the governmental structure necessary to comply with Anglo-American requirements of due process of law. This article reviews the Oliphant decision and discusses the authority of Indian tribes to make and enforce civil laws applicable to non-Indians within tribal Indian country. The Court's analysis in Oliphant has already become the focus for lower court decisions dealing with the scope of tribal jurisdiction.

In the following discussion, the tribal claim to authority in noncriminal matters and the opposing view that the Oliphant rationale should be extended to all forms of tribal authority are evaluated.