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166 nineteen The Oliphant Case: A Setback for Tribal Government our firm’s record of success in the u.s. supreme court was extraordinary—victory after victory, with only one partial loss. But litigating Indian rights in the Supreme Court was a high-risk undertaking, often asking the Court to rule against local citizens or state governments on issues at the cutting edge of the law. The case of Mark David Oliphant v. Suquamish Tribe proved to be a turning point. The Suquamish Indian Reservation lies just across Puget Sound from Seattle and is formally called the Port Madison Reservation. It was established under the treaties made with the United States in the mid-nineteenth century by Territorial Governor Isaac Stevens. The reservation is small, only about 7,300 acres, 63 percent of it owned by non-Indians—they comprise the overwhelming majority of the local population. When we got involved with the tribe, only fifty Suquamish members lived on the reservation, though other members lived in the area. But the tiny Suquamish Tribe had pride. Chief Seattle, the namesake for the city across the Sound, was a Suquamish, and he is buried on the reservation. The white residents were scornful and irritated when the tribe began to exercise its governmental authority. In some cases they became openly hostile. It was another example of the Charlie Peterson principle: they want our names, but they have no use for us. The tribe retained our firm to represent them, and Barry Ernstoff took responsibility for being their advisor. The tribe, though small, had the oliphant case 167 tribal police officers and police cars. There was a tribal Law and Order Code and a tribal court. The Indian Civil Rights Act, a federal law enacted in 1968, applied to tribal court proceedings.1 The law required Indian tribes to afford all persons the rights guaranteed under the Bill of Rights, including due process of law. Juries, however, were limited to six persons, and there was no requirement that nonmembers be allowed to sit on these juries. The maximum penalty allowed under the act was a fine of $500 or six months in jail (amended in 1986 to a fine of $5,000 or one year in jail, or both). Aggrieved parties had access to the federal courts by writ of habeas corpus. The Suquamish had experienced rowdy behavior and reckless driving on the reservation and had posted signs declaring that entry onto the reservation subjected all persons to the jurisdiction of the Suquamish tribal court. Arrested persons would be confined in the local county jail under a contract between the tribe and the county. In August of 1973 the tribe was holding its annual Chief Seattle Days. It was a weekend celebration held on tribal land, with Indian drumming and songs, salmon barbecue, and handicraft sales. A number of Indian people had camped overnight on the tribal grounds. The tribe had asked the Kitsap County Sheriff’s Department for assistance with policing the event, but the sheriff’s office had refused. At about four o’clock in the morning, a fight broke out involving a local non-Indian youth, Mark David Oliphant. When tribal police tried to break up the fight, Oliphant fought with them. Tribal police arrested Oliphant and charged him with resisting arrest and assaulting a police officer. The next morning, the tribal chairman called Barry Ernstoff at our firm to inform him what had happened and ask for his advice. Barry was perplexed. Tribal criminal jurisdiction over non-Indians was a completely uncharted area of Indian law. In principle, there was no reason why a tribe should not have that authority, but the politics were volatile and Barry knew it. He advised the tribe to release Oliphant on his own recognizance and file the charges in tribal court. He would have to sort out the legal issues later. Before any proceedings could begin, the entire matter escalated into a conflagration. The white residents were outraged that the tribe would have the audacity to arrest a white man, no matter how drunk or disorderly he might have been. Oliphant’s case quickly became a focal point 168 the oliphant case for anti-Indian hostility. A wealthy local realtor retained an attorney for the defendant. Real-estate interests were concerned that tribal jurisdiction over non-Indians could affect their ability to sell properties on the reservation. And Oliphant soon found another important ally: the Washington State attorney general, Slade Gorton, that indefatigable...


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