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Oliphant v. Suquamish Indian Tribe
''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978) is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6–2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was written by Thurgood Marshall, who was joined by Chief Justice Warren E. Burger. Judge William J. Brennan abstained.
==Background==
In August 1973 Mark David Oliphant, a non-Indian living as a permanent resident with the Suquamish Tribe on the Port Madison Indian Reservation in northwest Washington,〔French, Laurence Armand. Native American Justice. Chicago, IL: Burnham Inc., Publishers, 2003. pg. 59〕 was arrested and charged by tribal police with assaulting a tribal officer and resisting arrest. Oliphant applied for a writ of habeas corpus in federal court, because he claimed he was not subject to tribal authority because he was not an American Indian. He was not challenging the exercise of criminal jurisdiction by the tribe over non-Indians; he was challenging the existence of this jurisdiction by the tribe.〔Duthu, N. Bruce. American Indians and the Law. New York, NY: Penguin Group, 2008. p.19〕
His application for a writ of habeas corpus was rejected by the lower courts. They thought that the ability to keep law and order within tribal lands was an important attribute of tribal sovereignty that was neither surrendered by treaty nor removed by the United States Congress under its plenary power. Judge Anthony Kennedy, a judge of the Ninth Circuit Court of Appeals at the time, dissented from this ruling saying he found no support for the idea that only treaties and acts of Congress could take away the retained rights of tribes. According to Judge Kennedy the doctrine of tribal sovereignty was not "analytically helpful" in resolving this issue.〔
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