LAWRENCEVILLE, N.J. – Willie A. Sharp Jr., chairman of the Blackfeet Tribal Business Council, signed Tribal Resolution No. 98-2009 Jan. 16 that called on Montana’s Congressional Delegation to sponsor a bill to allow Indian tribes, including the Blackfeet Tribe, to remedy Oliphant v. Suquamish, 435 U.S. 191(1978).
The Supreme Court case held that tribes did not have jurisdiction over non-Indians in criminal cases. The tribe seeks legislation that would empower tribes to exercise criminal jurisdiction over all persons who commit crimes within the boundaries of an Indian reservation.
The Blackfeet Indian Reservation is 1.5 million acres in northwestern Montana, which includes most of Glacier County. On the north it borders the Canadian Province of Alberta; on the west it shares a border with Glacier National Park. The Blackfeet Tribe has approximately 15,560 enrolled members, of which 8,560 are off-reservation and 7,000 are on-reservation.
Council Member Rodney “Fish” Gervias, a strong advocate of the resolution and Indian civil rights activist, helped form the Montana Indian Civil Rights Commission. The Blackfeet Nation hosted the first conference to address reservation border town discrimination issues. He said that many crimes against Native women committed by non-Indians go unpunished. Many drug runners use the reservation lands to traffic drugs and tribal police and courts exercise justice with their hands tied.
Oliphant indicated that only Congress could give tribes the power to try and punish non-Indians in their tribal justice systems. The case arose on the Port Madison Indian Reservation in Washington state. Tribal police arrested two non-Indians during the Suquamish’s annual Chief Seattle Days celebration. Mark David Oliphant was charged with assaulting a tribal officer and resisting arrest. Daniel Belgarde was arrested and charged with recklessly endangering another person and injuring tribal property.
The tribal code, adopted in 1973, covered a variety of offenses from theft to rape. It extended the tribe’s criminal jurisdiction to Indians and non-Indians. Both men filed a writ of habeas corpus challenging the tribe’s jurisdiction over them. The U.S. District Court for the Western District of Washington and the 9th Circuit Court of Appeals denied the petitions. When the case reached the Supreme Court, the tribe argued that it had inherent powers of government over the Port Madison Indian Reservation. The tribe did not claim that these powers arose from treaties or congressional legislation. At the time, of the 127 reservation court systems that exercised criminal jurisdiction, 33 purported to extend that jurisdiction to non-Indians. Twelve other tribes had enacted ordinances that would permit the assumption of criminal jurisdiction over non-Indians.
The court, in reaching its decision, reviewed the history of the tribes through its treaties and congressional statutes. Overall, the court interpreted tribal sovereignty as limited by the U.S. government’s power to protect them. In return for this protection, tribes lost the power to exercise control over non-Indians in criminal matters. While the court acknowledged that this ruling leaves the problem of crime on Indian reservations committed by non-Indians unresolved, the court clearly pointed to Congress to remedy the situation.
To date, several bills have been proposed to address the jurisdictional maze on Indian reservations, but none have become law. Similarly, many tribes have lobbied to overturn Oliphant through national organizations such as the National Congress of American Indians and petitions to members of Congress. Yet, Oliphant stands like an evil spirit over reservation criminal justice systems.
Last month, Senator Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs, introduced a draft for the Tribal Law and Order Act. This bill, if enacted, would make incremental steps to an Oliphant remedy in the following areas: It would increase tribal courts ability to sentence offenders to up to three years imprisonment and up to $15,000 in fines from the current limits of one year of incarceration and $5,000 in fines; it would increase funding for law enforcement and tribal courts; and it would set up a Law and Order
Commission to study jurisdiction over crimes committed in Indian country and the impact of that jurisdiction on the investigation and prosecution of Indian country crimes and residents of Indian land. One goal of the commission would be to consider how to simplify jurisdiction in Indian country. The commission would have two years from the enactment of the legislation to issue a report to Congress.
Michael Riley, a reporter for The Denver Post, published a six-part series called “Lawless Lands” in November 2007. He concluded, based on an extensive investigation of tribal justice systems that, “A dysfunctional system lets serious reservation crimes go unpunished and puts Indians at risk.” He based his findings on the fact that the sole authority to prosecute felony crime lies with the federal government. Between 1997 and 2006, federal prosecutors rejected nearly two-thirds of the reservation cases brought to them by FBI and BIA investigators.
Most recently, on Feb. 23, in U.S. District Court in Billings, Mont., Earline and Cletus Cole and Veronica Springfield filed a complaint as relatives of two deceased Crow tribal members. They allege the deaths of the tribal members were not properly investigated and prosecuted because the victims were Native American.
The Cole’s son, Steven Bearcrane-Cole died Feb. 2, 2005 in a shooting on a ranch on the Crow Reservation. A year later, the South Dakota U.S. Attorney declined to prosecute. Springfield’s husband died in 2004 in Wyoming; his remains were found in October 2005. The FBI returned his remains to the family in November 2007. Patricia Bangert, the plaintiffs’ attorney, alleges there’s a pattern and practice of not adequately investigating and prosecuting cases in which the victims are Native American.
While many factors contribute to defects in the Native American tribal justice system, overturning Oliphant would vastly improve tribal justice systems.
Tribes and other organizations who wish to obtain a copy of the Blackfeet Tribal Resolution regarding Oliphant should contact the Blackfeet Nation at (406) 338-7521.