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285 dian affairs matters. In addition to serving as an Assistant Secretary of the Department, the Assistant Secretary—Indian Affairs will assume all the authorities and responsibilities of the Commissioner of Indian Affairs pending subsequent organization and position realignments. . . . [Federal Register, 42:53682 (October 3, 1977).] 180. Oliphant v. Suquamish Indian Tribe March 6, 1978 Mark Oliphant, a non-Indian residing on the Port Madison Reservation in the State of Washington, was arrested by tribal police and charged with assaulting a tribal officer and resisting arrest. He claimed that he was not subject to tribal authority, and the Supreme Court upheld his claim. The case was considered by Indians as a damaging blow to the revival of their sovereignty. . . . . While not conclusive on the issue before us, the commonly shared presumption of Congress, the Executive Branch, and lower federal courts that tribal courts do not have the power to try non-Indians carries considerable weight. . . . “Indian law” draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them. While in isolation the Treaty of Point Elliott, 12 Stat. 927 (1855), would appear to be silent as to tribal criminal jurisdiction over non-Indians, the addition of historical perspective casts substantial doubt upon the existence of such jurisdiction. . . . By themselves, these treaty provisions would probably not be sufficient to remove criminal jurisdiction over non-Indians if the Tribe otherwise retained such jurisdiction. But an examination of our earlier precedents satisfies us that, even ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over nonIndians absent affirmative delegation of such power by Congress. Indian tribes do retain elements of “quasi-sovereign” authority after ceding their lands to the United States and announcing their dependence on the Federal Government. . . . But the tribes’ retained powers are not such that they are limited only by specific restrictions in treaties or congressional enactments. As the Court of Appeals recognized, 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.” . . . Indian reservations are “part of the territory of the United States.” . . . Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. . . . We have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States. In Johnson v. M’Intosh . . . we noted that the Indian tribes’ “power to dispose of the soil at their own will, to whomsoever they pleased,” was inherently lost to the overriding sovereignty of the United States. And in Cherokee Nation v. Georgia . . . the Chief Justice observed that since Indian tribes are “completely under the sovereignty and dominion of the United States . . . any attempt [by foreign nations] to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.” . . . Nor are the intrinsic limitations on Indian tribal authority restricted to limitations on the tribes’ power to transfer lands or exercise external political sovereignty. . . . Protection of territory within its external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the 286 adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. 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 except in a manner acceptable to Congress. . . . We recognize that some Indian tribal court systems have become increasingly sophisticated and resemble in many respects their state counterparts. We also acknowledge that with the passage of the Indian Civil Rights Act of...


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