oliphant suquamish indian tribe argued january decided march together belgarde suquamish indian tribe et certiorari judgment see rule indian tribal courts inherent criminal jurisdiction try punish hence may assume jurisdiction unless specifically authorized congress pp earliest treaties indian tribes assumed tribes maintained semblance formal system jurisdiction absent congressional statute treaty provision effect least one held jurisdiction exist pp congress actions century reflected body belief indian tribes inherent criminal jurisdiction pp presumption commonly shared congress executive branch lower federal courts tribal courts power try carries considerable weight submitting overriding sovereignty indian tribes necessarily yield power try except manner acceptable congress fact seems recognized treaty point elliott signed suquamish indian tribe pp rehnquist delivered opinion stewart white blackmun powell stevens joined marshall filed dissenting opinion burger joined post brennan took part consideration decision cases philip malone argued cause filed briefs petitioners slade gorton attorney general argued cause state washington amicus curiae urging reversal brief edward mackie deputy attorney general timothy malone assistant attorney general barry ernstoff argued cause respondents brief steven chestnut bartow farr iii argued cause amicus curiae urging affirmance brief solicitor general mccree assistant attorneys general days moorman louis claiborne miriam fn william janklow attorney general david knudson tom tobin special assistant attorneys general filed brief state south dakota et al amici curiae urging reversal joined attorneys general respective follows michael greely montana paul douglas nebraska robert list nevada toney anaya new mexico allen olson north dakota james redden oregon frank mendicino wyoming briefs amici curiae urging affirmance filed arthur lazarus association american indian affairs et al bryan freeman simpson cox richard wilks colorado indian tribes et al robert pirtle confederated tribes colville indian reservation washington et al charles hobbs national congress american indians et al stephen boyden scott pugsley ute indian tribe uintah ouray reservation briefs amici curiae filed danny clem kitsap county michael taylor daniel raas lummi indian tribe et al david getches ralph johnson national american indian judges assn george christensen joseph fontana national tribal chairmen assn justice rehnquist delivered opinion two hundred years ago area bordering puget sound consisted large number politically autonomous indian villages occupied dozen indians loosely related villages aggregated series indian tribes one suquamish become focal point litigation treaty point elliott stat suquamish indian tribe relinquished rights might lands state washington agreed settle reservation near port madison wash located puget sound across city seattle port madison reservation checkerboard tribal community land allotted indian lands property held fee simple various roads public highways maintained kitsap county suquamish indians governed tribal government adopted law order code code covers variety offenses theft rape purports extend tribe criminal jurisdiction indians proceedings held suquamish indian provisional pursuant indian civil rights act stat defendants entitled many due process protections accorded defendants federal state criminal proceedings however guarantees identical example excluded suquamish tribal juries petitioners residents port madison reservation petitioner mark david oliphant arrested tribal authorities suquamish annual chief seattle days celebration charged assaulting tribal officer resisting arrest arraignment tribal oliphant released recognizance petitioner daniel belgarde arrested tribal authorities alleged race along reservation highways ended belgarde collided tribal police vehicle belgarde posted bail released six days later arraigned charged tribal code recklessly endangering another person injuring tribal property tribal proceedings petitioners stayed pending decision case petitioners applied writ habeas corpus district western district washington petitioners argued suquamish indian provisional criminal jurisdiction separate proceedings district disagreed petitioners argument denied petitions august appeals ninth circuit affirmed denial habeas corpus case petitioner oliphant oliphant schlie petitioner belgarde appeal still pending appeals granted certiorari decide whether indian tribal courts criminal jurisdiction decide respondents contend exercise criminal jurisdiction stems affirmative congressional authorization treaty provision instead respondents urge jurisdiction flows automatically tribe retained inherent powers government port madison indian reservation seizing language opinions describing indian tribes entities see morton mancari appeals agreed held indian tribes though conquered dependent retain powers autonomous neither inconsistent status expressly terminated congress according appeals criminal jurisdiction anyone committing offense reservation sine qua non powers suquamish indian tribe stand alone today assumption criminal jurisdiction reservation systems currently exercise criminal jurisdiction purport extend jurisdiction twelve indian tribes enacted ordinances permit assumption criminal jurisdiction like suquamish tribes claim authority try basis congressional statute treaty provision reason retained national sovereignty effort indian tribal courts exercise criminal jurisdiction however relatively new phenomenon effort made past held jurisdiction exist middle century indian tribes maintained semblance formal system offenses one indian another usually handled social religious pressure formal judicial processes emphasis restitution rather punishment commissioner indian affairs described status indian criminal systems exception two three tribes within years past attempted establish laws regulations among indian tribes without laws chiefs without much authority exercise restraint therefore surprising find specific discussion problem us volumes reports problem lie entirely dormant two centuries tribes century formal criminal systems earliest treaties tribes apparently assumed tribes criminal jurisdiction absent congressional statute treaty provision effect example treaty choctaw indian tribe one sophisticated tribal structures guaranteed tribe jurisdiction government persons property may within limits despite broad terms governmental guarantee however choctaws conclusion treaty provision express wish congress may grant choctaws right punishing laws white man shall come nation infringe national regulations art stat emphasis added request affirmative congressional authority inconsistent respondent belief criminal jurisdiction indians inherent tribal sovereignty faced attempts choctaw tribe try offenders early attorneys general also concluded choctaws criminal jurisdiction absent congressional authority see op atty op atty according attorney general tribal criminal jurisdiction inter alia inconsistent treaty provisions recognizing sovereignty territory assigned indian nation dependence indians least one previously considered power indian courts try also held jurisdiction ex parte kenyon cas wd ark judge isaac parker district judge western district arkansas constantly exposed legal relationships indians held give indian tribal jurisdiction person offender offender must indian conclusion judge parker reaffirmed recently opinion solicitor department interior see criminal jurisdiction indian tribes congress concerned almost beginning special problems law enforcement indian reservations initially address problem tribal jurisdiction reasons previously stated little reason concerned assertions tribal jurisdiction absence formal tribal judicial systems instead congress concern providing effective protection indians violences lawless part frontier inhabitants seventh annual address president george washington messages papers presidents pp richardson without protection felt exertions government prevent destructive retaliations indians prove fruitless present agreeable prospects illusory ibid beginning trade intercourse act stat therefore congress assumed federal jurisdiction offenses indians punishable laws state district offense committed citizen white inhabitant thereof congress went one step extended federal enclave law indian country exception offence committed one indian another stat codified amended congress first directly faced prospect indians trying western territory bill congress proposed create indian territory beyond destination settlers territory governed confederation indian tribes expected ultimately become state union bill created political territory broad governing powers congress careful give tribes territory criminal jurisdiction officials citizens traveling area reasons quite practical officers persons service persons required reside indian country treaty stipulations must necessarily placed protection subject laws persons merely travelling indian country protection extended want fixed laws competent tribunals justice must time continue indian country absolutely requires peace sides protection extended congress concern criminal jurisdiction proposed indian territory contrasts markedly total failure address criminal jurisdiction reservations frequently bordered settlements contrast suggests congress shared view executive branch lower federal courts indian tribal courts without jurisdiction try recognized congress various actions inactions regulating criminal jurisdiction indian reservations demonstrated intent reserve jurisdiction federal courts mayfield noted policy congress allow inhabitants indian country power thought consistent safety white population may come contact encourage far possible raising standard civilization general object congressional statutes allow indian nations criminal jurisdiction controversies indians member nation party proceeding reserve courts jurisdiction actions citizens parties either side ibid congress never expressly forbade indian tribes impose criminal penalties make express implicit conclusion nearly century ago congress consistently believed necessary result repeated legislative actions senate report body expressly confirmed assumption indian tribal courts without inherent jurisdiction try must depend federal government protection intruders considering statute prohibit unauthorized entry upon indian land purpose hunting fishing senate report noted problem confronting indian tribes sizable reservations provides protection trespassers comparable protection gives federal property exemplified title code section trespass national forest lands indian property owners protection property owners example private hunting club may keep nonmembers game lands may issue permit fee one comes lands without permission may prosecuted state law trespasser indian reservation enjoys immunity reason fact indian tribal law enforcible indians subject jurisdiction indian courts tried indian courts trespass charges federal laws invoked trespassers committee considered bill believes legislation meritorious legislation give indian tribes individual indian owners certain rights exist others fills gap present law protection property emphasis added ii conclusive issue us commonly shared presumption congress executive branch lower federal courts tribal courts power try carries considerable weight cf draper morris hitchcock warren trading post arizona tax decoteau district county indian law draws principally upon treaties drawn executed executive branch legislation passed congress instruments beyond actual text form backdrop intricate web judicially made indian law interpreted isolation must read light common notions day assumptions drafted ibid isolation treaty point elliott stat appear silent tribal criminal jurisdiction addition historical perspective casts substantial doubt upon existence jurisdiction ninth article example suquamish acknowledge dependence government chief justice marshall explained worcester georgia pet acknowledgment mere abstract recognition sovereignty indian nations situation necessarily dependent protection lawless injurious intrusions country acknowledging dependence treaty point elliott suquamish probability recognizing arrest try intruders came within reservation provisions treaty also point absence tribal jurisdiction thus tribe agree shelter conceal offenders laws deliver authorities trial read conjunction extends federal enclave law offenses indian reservations provision implies suquamish promptly deliver offender rather try punish treaty provisions probably sufficient remove criminal jurisdiction tribe otherwise retained jurisdiction examination earlier precedents satisfies us even ignoring treaty provisions congressional policy indians criminal jurisdiction absent affirmative delegation power congress indian tribes retain elements authority ceding lands announcing dependence federal government see cherokee nation georgia pet tribes retained powers limited specific restrictions treaties congressional enactments appeals recognized indian tribes prohibited exercising powers autonomous expressly terminated congress powers inconsistent status oliphant schlie emphasis added indian reservations part territory rogers indian tribes hold occupy reservations assent authority upon incorporation territory indian tribes thereby come territorial sovereignty exercise separate power constrained conflict interests overriding sovereignty heir rights complete sovereignty independent nations necessarily diminished johnson wheat already described inherent limitations tribal powers stem incorporation johnson supra noted indian tribes power dispose soil whomsoever pleased inherently lost overriding sovereignty cherokee nation georgia supra chief justice observed since indian tribes completely sovereignty dominion attempt foreign nations acquire lands form political connexion considered invasion territory act hostility intrinsic limitations indian tribal authority restricted limitations tribes power transfer lands exercise external political sovereignty first case reach dealing status indian tribes justice johnson separate concurrence summarized nature limitations inherently flowing overriding sovereignty follows restrictions upon right soil indians amount exclusion competitors markets limitation upon sovereignty amounts right governing every person within limits except fletcher peck cranch emphasis added protection territory within external political boundaries course central sovereign interests sovereign nation formation union adoption bill rights manifested equally great solicitude citizens protected unwarranted intrusions personal liberty power try criminally punish important manifestation power restrict personal liberty submitting overriding sovereignty indian tribes therefore necessarily give power try citizens except manner acceptable congress principle obvious century ago indian tribes characterized want fixed laws competent tribunals justice less obvious today even though indian tribal courts embody dramatic advances historical antecedents ex parte crow dog faced almost inverse issue us whether prior passage major crimes act federal courts jurisdiction try indians offended fellow indians reservation land concluding criminal jurisdiction exclusively tribe found particular guidance nature circumstances case seeking extend law argument inference aliens strangers members community separated race tradition authority power seeks impose upon restraints external unknown code judges standard made others tries peers customs people law land different race according law social state imperfect conception previously noted congress extended jurisdiction federal courts trade intercourse act offenses committed indians within indian country congress careful extend offender basic criminal rights attach related cases respondents theory however indian tribes free try without careful proceedings unless congress affirmatively legislated contrary exercise jurisdiction citizens belie tribes forfeiture full sovereignty return protection summary respondents position ignores indians within geographical limits soil people within limits political control government union exist broad domain sovereignty two may cities counties organized bodies limited legislative functions exist subordination one kagama reversed footnotes notices placed prominent places entrances port madison reservation informing public entry onto reservation deemed implied consent criminal jurisdiction suquamish tribal talton mayes held bill rights federal constitution apply indian tribal governments indian civil rights act provides trial jury less six persons tribal explicitly prohibited excluding jury even tried suquamish tribe amended law order code provide suquamish tribal members shall serve jurors tribal belgarde petition certiorari granted appeal still pending appeals ninth circuit proceedings held pending decision respondents contend congress confirmed power indian tribes try punish indian reorganization act stat indian civil rights act neither act however addresses let alone confirms tribal criminal jurisdiction indian reorganization act merely gives indian tribe right organize common welfare adopt appropriate constitution bylaws certain specific additions relevant tribal council powers vested existing law indian civil rights act merely extends person within tribe jurisdiction certain enumerated guarantees bill rights federal constitution respondents note early version indian civil rights act extended guarantees american indians rather person purpose later modification extend act guarantees persons may subject jurisdiction tribal governments whether indians summary report constitutional rights american indians subcommittee constitutional rights senate committee judiciary change certainly intended give indian tribes criminal jurisdiction read confirm respondents argument indian tribes inherent criminal jurisdiction instead modification merely demonstrates congress desire extend act guarantees come tribe criminal civil jurisdiction either treaty provision act congress courts currently operating indian reservations including suquamish indian provisional tribal courts established functioning pursuant tribal legislative powers cfr courts operating code federal regulations cfr et seq traditional courts new mexico pueblos conservation courts cfr courts offspring courts indian offenses first provided indian department appropriations act stat see hagan indian police judges regulations issued jurisdiction cfr courts restricted offenses committed indians within reservation cfr case us concerned criminal jurisdiction tribal courts history indian treaties consistent principle indian tribes may assume criminal jurisdiction without permission congress earliest treaties typically expressly provided citizen shall injury indian tribal nation indian indians residing towns protection shall punished according laws see treaty shawnees art iii stat elaborated provisions necessary remove criminal jurisdiction indian tribes naturally served important function developing stage relations clarifying jurisdictional limits indian tribes treaties generally provided citizen shall attempt settle lands hereby allotted indians live hunt person shall forfeit protection america indians may punish please see treaty choctaws art iv stat far representing recognition inherent indian criminal jurisdiction settling tribal lands provisions instead intended means discouraging settlements indian territory contravention treaty provisions contrary see annals cong later treaties dropped provision provided instead settlers removed upon complaint lodged tribe see treaty sacs foxes stat relationship indian tribes developed passage time specific provisions punishment rather tribes slowly disappeared treaties thus example none treaties signed washington indians explicitly proscribed criminal prosecution punishment indian tribes discussed however several treaty provisions read recognizing criminal jurisdiction rather tribes disappearance provisions explicitly providing punishment rather indian tribes coincides least partly explained extension federal enclave law trade intercourse acts general recognition attorneys general lower federal courts indians jurisdiction try see infra felt necessary expressly spell respective jurisdictions later treaties still provided criminal jurisdiction see treaty band art stat one treaty signed ever provided form tribal criminal jurisdiction context noted first treaty signed indian tribe treaty delawares provided neither party treaty proceed infliction punishments citizens otherwise securing offender offenders imprisonment competent means till fair impartial trial judges juries parties near laws customs usages contracting parties natural justice mode tryals hereafter fixed wise men congress assembled assistance deputies delaware nation treaty delawares art iv stat emphasis added providing delaware participation trial treaty section established tried auspices manner fixed continental congress according felix cohen handbook federal indian law dept interior attempts tribes exercise jurisdiction generally condemned federal courts since end period writ habeas corpus used discharge white defendants tribal custody judge parker sat judge district western district arkansas reason laws congress effect time particular handled normal docket federal cases arising western district arkansas also criminal jurisdiction called indian territory area varied size parker tenure one time extended far west eastern border colorado always included substantial parts later become state oklahoma exercise jurisdiction indian territory sat necessarily constant contact individual indians tribes members white men dealt often preyed upon judge parker views law always upheld see wigmore evidence pp ed reading wigmore however indicates critical decisions mentioned evidentiary rulings judge parker nothing long forgotten disputes detracts universal esteem indian tribes subject jurisdiction held judge parker one biographers describing judge funeral grave filled principal chief choctaws pleasant porter came forward placed wreath wild flowers grave croy hanged high may judge parker views ultimate destiny indian people accord current thinking subject observed one cases views people issue reflected judgments congress changed one era next see kake village egan slightest doubt judge parker lights lights time lived judge thoroughly acquainted sympathetic indians indian tribes subject jurisdiction well familiar law governed see generally hell border gregory strickland eds opinion solicitor withdrawn replaced reason given withdrawal see western territory bill like early indian treaties see supra extend protection settled without government business indian territory see western territory bill supra exception like early treaties presumably meant discourage settlement land reserved exclusively use various indian tribes today many reservations including port madison reservation extensive populations percentage residents grew direct intended result congressional policies late early centuries promoting assimilation indians culture respondents point statute comparison western territory bill congress intended give indian tribes jurisdiction today residing within reservations even drafted many congressmen felt bill radical shift relations bill tabled see cong deb western territory bill resubmitted several times revised form never passed see generally gittinger formation state oklahoma major crimes act provides indians committing enumerated offenses shall subject laws penalties persons committing offenses within exclusive jurisdiction emphasis added question never directly addressed courts appeals read language exclude tribal jurisdiction indian offender see sam felicia reason decide today whether jurisdiction major crimes act exclusive legislative history original version major crimes act introduced house amendment indian appropriation act creates confusion question exclusive jurisdiction originally worded amendment provided trial courts otherwise apparently suggestion congressman budd believed concurrent jurisdiction courts sufficient words otherwise deleted amendment later reintroduced see cong rec however finally accepted senate passed houses amendment provide indian offender punished offender within exclusive jurisdiction issue exclusive jurisdiction major crimes mooted practical purposes passage indian civil rights act limits punishment imposed indian tribal courts term months fine congressional policy review commission citing lower decisions oliphant belgarde concluded established legal basis tribes exercise jurisdiction final report american indian policy review commission however commission report deny almost years lower courts decided oliphant belgarde three branches federal government apparent agreement indian tribes jurisdiction vice chairman commission congressman lloyd meeds noted dissent jurisdiction generally asserted lack legislation point reflects congressional assumption tribal jurisdiction final report supra treaties washington tribes first contemplated commissioner indian affairs sent instructions commission hold treaties indian tribes washington territory blackfoot country included instructions copies treaties previously negotiated omaha indians stat ottoe missouria indians stat commissioner regarded exhibiting provisions proper part government advantages indians felt afford valuable suggestions criminal provisions treaty point elliott clearly patterned criminal provisions exemplary treaties respects copying provisions verbatim like treaty point elliott treaties omahas ottoes missourias specifically address issue tribal criminal jurisdiction sometime receipt instructions washington treaty commission prepared discussed draft treaty specifically provided njuries committed whites towards revenged complaint made shall tried laws convicted offenders punished unexplained reason however negotiating treaty indians commission went back language used two exemplary treaties sent commissioner indian affairs although respondents contend commission returned original language tribal opposition relinquishment criminal jurisdiction evidence support view matter instead seems probable commission preferred use language recommended office indian affairs discussed language ultimately used wherein tribe acknowledged dependence promised friendly citizens thereof well understood acknowledging exclusive federal criminal jurisdiction interpreting indian treaties statutes oubtful expressions resolved favor weak defenseless people wards nation dependent upon protection good faith mcclanahan arizona state tax see kansas indians wall nice treaty statutory provisions clear face may clear surrounding circumstances legislative history cf decoteau district county see national american indian judges justice american indian hearings reform federal criminal laws subcommittee criminal laws procedures senate committee judiciary et seq justice marshall chief justice joins dissenting agree power preserve order reservation sine qua non sovereignty suquamish originally possessed oliphant schlie absence affirmative withdrawal treaty statute view indian tribes enjoy necessary aspect retained sovereignty right try punish persons commit offenses tribal law within reservation accordingly dissent