Reclaiming the Reservation

Histories of Indian Sovereignty Suppressed and Renewed

Alexandra Harmon

• Publisher: University of Washington Press
• Year: 2019
• ISBN:
  9780295745879
• Topic: Geschichte
• Subtopic: Nordamerikanische Geschichte

In the 1970s the Quinault and Suquamish, like dozens of Indigenous nations across the United States, asserted their sovereignty by applying their laws to everyone on their reservations. This included arresting non-Indians for minor offenses, and two of those arrests triggered federal litigation that had big implications for Indian tribes' place in the American political system. Tribal governments had long sought to manage affairs in their territories, and their bid for all-inclusive reservation jurisdiction was an important, bold move, driven by deeply rooted local histories as well as pan-Indian activism. They believed federal law supported their case. In a 1978 decision that reverberated across Indian country and beyond, the Supreme Court struck a blow to their efforts by ruling in Oliphant v. Suquamish Indian Tribe that non-Indians were not subject to tribal prosecution for criminal offenses. The court cited two centuries of US legal history to justify their decision but relied solely on the interpretations of non-Indians. In Reclaiming the Reservation, Alexandra Harmon delves into Quinault, Suquamish, and pan-tribal histories to illuminate the roots of Indians' claim of regulatory power in their reserved homelands. She considers the promises and perils of relying on the US legal system to address the damage caused by colonial dispossession. She also shows how tribes have responded since 1978, seeking and often finding new ways to protect their interests and assert their sovereignty. Reclaiming the Reservation is the 2020 winner of the Robert G. Athearn Prize for a published book on the twentieth-century American West, presented by the Western History Association.

1. Facts Are Tough

Whenever Justice Harry Blackmun sat down to analyze a new case on the Supreme Court docket, he took pen in hand and made a page or two of pithy notes. His cramped cursive and idiosyncratic abbreviations can frustrate an effort to read much of what he wrote, but the first line of notes on case number 76-5729 is unmistakably legible. Under the heading “Suquamish,” it says simply, “Indians again.”1

Did that oddly gratuitous remark express displeasure? Was Blackmun tired of considering disputes involving American Indians? One scholar suggested as much when he wrote that Chief Justice Warren Burger widened a rift with a longtime friend by making Blackmun write “more than his share” of the court’s opinions in Indian cases. At least two other justices reportedly did resent Indian cases. According to journalist Bob Woodward, William Rehnquist “had nothing but contempt” for them, and William Brennan “seethed” at having to write the opinion in one that he regarded as “chickenshit.”2

Perhaps case 76-5729 struck Blackmun as trivial and annoying in some respects. The parties involved were obscure and far from influential. On one side were two young working-class men apparently given to reckless behavior. On the other side was a tiny Indian tribe in Washington State, all but unknown in the nation’s capital. The incidents that triggered court proceedings—arrests for alleged misdemeanors—were commonplace. Petitioners Mark Oliphant and Daniel Belgarde sought a ruling that their detention and prosecutions were illegal, but they did not personally have a great deal at stake in case 76-5729. The Suquamish court had long since released them from custody and postponed their trials indefinitely. If the justices disagreed with two lower court rulings and allowed the prosecutions to proceed, the penalties for convictions would at most be modest fines or short-term incarceration.3 In such circumstances, the Supreme Court could reasonably have declined to hear the case, as it does in all but a few cases that reach it each year.

Nevertheless, influential advocates persuaded a majority of court members that the case presented issues significant and urgent enough to warrant their consideration. Along with the lawyer for Oliphant and Belgarde, Washington State’s attorney general asked the justices for a decision. The justices in turn asked the solicitor general, the federal government’s top trial lawyer, whether review was desirable, and the answer was a qualified yes.

By the time Harry Blackmun was collecting his thoughts about case 76-5729, the file contained eleven briefs on behalf of twenty-nine amici curiae (friends of the court) who professed to have vital interests in the litigation’s outcome. A brief from South Dakota and seven other states asserted that the lower court decisions broke “new ground in the area of tribal criminal jurisdiction” and had “profound implications.” Justices may have seen a Washington Post article describing the case as one with “enormous” possibilities and “a staggering array” of potential repercussions. A city official in Washington State predicted consequences “so far reaching that you don’t even want to contemplate it.” An Indian police officer told the Post reporter, “Every Indian in the United States is sitting on the edge of his chair,” and the Suquamish Tribe’s chairman said, “This is it man. This is the biggest shot. This is the whole ballgame.”4

Thus, on January 9, 1978, Blackmun and seven fellow jurists took their places in the high-back chairs behind the Supreme Court’s imposing bench and directed their attention to four lawyers who took turns presenting arguments about the case titled Mark David Oliphant and Daniel B. Belgarde v. The Suquamish Indian Tribe, et al.5 One of the few legible phrases in Blackmun’s notes from that hearing reads, “This is a hard argmt & a hard case.”

The next day, court members met to air their thoughts and preliminary inclinations regarding the decision to be made. As usual, Blackmun brought a two-sided sheet of paper on which lines marked out a square for each of the other justices. There he noted concerns or views suggested by his colleagues’ questions and comments. In the space for Justice Lewis Powell, he scribbled, “This case a farce factually” and “a non-case.” Although he did not record an explanation of Powell’s opinion or his own reaction to that opinion, Blackmun also took a dim view of the facts reported to the court. In other notes on the case he wrote, “Fax here r tough.”6

Which facts bothered Blackmun and Powell? Neither man left a clear indication. If by “tough” Blackmun meant confusing or uncertain, he was not referring to the few basic facts that triggered the litigation in 1973; they were undisputed. On separate occasions fourteen months apart, officers deputized by the Suquamish Tribe arrested first Mark Oliphant and then Daniel Belgarde, accusing them of conduct prohibited by the tribe’s code of criminal offenses. Judges appointed by the Suquamish governing council arraigned each man on two charges and set trial dates. Soon after their respective arrests, Oliphant and Belgarde petitioned the US district court in Seattle to review the legality of Suquamish authorities’ actions, and the tribal court voluntarily suspended its process pending the federal judge’s decision. Two other accepted facts were essential elements of the dispute. First, the alleged crimes and arrests occurred within the boundaries of the Suquamish Tribe’s reservation. Second, neither accused man was Suquamish. Rather, Oliphant and Belgarde were non-Indians.7

Other allegations in the court record complicated this bare-bones narrative and possibly prompted Blackmun’s cryptic comment about the facts. Contrary to accepted practice, the opposing parties stated as fact in the Supreme Court some things they had not mentioned in the lower courts. They differed on some details and on the relevance of some circumstances. For example, the petitioners included disparaging descriptions of the tribe’s procedures even though they did not ask the court to judge the propriety of those procedures. They also cast doubt on the authenticity of the Suquamish Tribe itself, but rather than offer a direct rebuttal, the tribe’s attorney wrote about the tribe as if its bona fides were unquestionable.

The parties agreed that the first arrest came in the wee morning hours of August 19, 1973, when a festival known as Chief Seattle Days was in progress on land belonging to the Suquamish Tribe. According to the report of a “special deputy” employed by the tribe, officers patrolling the festival grounds responded to another deputy’s call for help at a camping area where a fight was under way. When help arrived, “the guy who was fighting the people turn on the deputys and hit one of them and knock him down and when the other deputys try to arrest the guy he started to run away but ran into a fence.”8 Mark Oliphant never denied he was the combative “guy.” He later told a journalist that the fight was a minor altercation fueled by the abundant liquor “around.”9

Once the police cornered Oliphant, two of them walked him a short distance to the tribe’s office in the town of Suquamish. There, he complained, they shut him in a tiny room without food, heat, or a toilet.10 After six hours or more, two judges of the tribal court reviewed the deputy’s report, signed an order of commitment on charges of assault and battery and resisting arrest, scheduled trial for August 27, and set bail at $100 on each charge. The police then delivered Oliphant to the Bremerton city jail, which had contracted with the Bureau of Indian Affairs to hold the tribe’s prisoners.

Perhaps to suggest that the tribe’s procedures were irregular, Oliphant alleged that a Suquamish administrator and a policeman called on his wife at home, then came to him with a proposal that he post bail by delivering his automobile and its title to the tribe.11 Meanwhile, the prisoner contacted a local lawyer, Philip Malone, who arranged with an attorney in Seattle to initiate a federal habeas corpus action for which Malone would ultimately take responsibility. On August 24, after Oliphant promised to appear for trial on September 25, Suquamish judge Cecilia Hawk signed an order for his release.

Daniel Belgarde also engaged Phil Malone’s services after Suquamish police jailed him on October 12, 1974. Malone’s description of events implied that tribal officers had no business pursuing Belgarde’s allegedly speeding pickup truck “on non-Indian land”—a state highway through the reservation—let alone arresting him. According to Malone, the chase ended when a Suquamish vehicle pulled in front of the truck, causing an “unavoidable” collision. The officer who emerged from the car discharged a gun in the pickup’s direction. Although a state patrolman and a county sheriff came to the scene, the tribal cops prevented them from enforcing state law.

Suquamish accounts of that night contradicted Malone’s on several points. In the district court, the tribe claimed that police chief Carl Big Man and two deputies began their pursuit of a truck racing recklessly through town streets only after reporting the problem to the county sheriff and waiting nearly two hours for action in response. The tribal officers finally managed to block the truck when it slowed, but just as Big Man opened his door to step out, the pickup accelerated, ramming the police car and injuring Big Man. The truck driver backed up, trying to flee, but stopped after an officer fired a warning shot into the air. Of the three men in the vehicle—driver Belgarde and passengers Mark Oliphant and Brad Bay—Big Man placed only Belgarde under arrest. He then phoned the sheriff again. The deputy who eventually came called in a state patrolman, and the two of them made out an accident report. When they declined to take Belgarde into custody, tribal police did.12

Attorney Malone deemed it important to mention that the officers drove Belgarde to a jail sixty miles away, where he remained until posting bail that afternoon. He learned his trial date at a subsequent tribal court arraignment on charges of endangering another person’s life and destroying public property. The judge, whom Malone “believed to have little knowledge, training or practice in the law,” presided at the back of a barbershop in an eight-by-ten-foot space “not physically capable of handling a fair, free and open public trial or arraignment.” “The remaining part of the room,” Malone recounted, “was occupied by tribal police officers and persons prejudiced and openly hostile to the Petitioner and non-Indians opposed to the police authority of the Suquamish Indian Tribe over non-Indians.”13

Justice Blackmun may have frowned at some specifics in this description of Suquamish law enforcement, such as the makeshift court facilities or the solicitation of a car as bail. But “facts r tough” could have pertained instead to circumstances that suggested why antagonistic non-Indians attended Belgarde’s arraignment, particularly the fact that the population of the Port Madison Indian Reservation was overwhelmingly non-Indian. Oliphant’s original habeas corpus petition supplied the following data.

Port Madison Indian Reservation consists of approximately 7276 acres of which approximately 63% thereof is owned in fee simple absolute by non-Indians and the remaining 37% is Indian-owned lands subject to the trust status of the United States, consisting mostly of unimproved acreage upon which no persons reside. Residing on the reservation is an estimated population of approximately 2928 non-Indians living in 976 dwelling units. There lives [sic] on the reservation approximately 50 members of the Suquamish Indian Tribe. Within the reservation are numerous public highways of the State of Washington, public schools, public utilities and other facilities in which neither the Suquamish Indian Tribes nor the United States has any ownership or interest.14

The petition and Supreme Court brief included the additional claim that only one tract of reservation land, forty-one acres large, was “community” land. The tribe had never occupied that land, Malone alleged, and in 1969 leased most of it to non-Indian developers for fifty years. (He did not disclose that he was the lessee.) The five remaining acres held a baseball park, a graveyard, and a lot leased for the American Legion hall.15

This landownership data drew no specific comment from the tribe’s lawyer, Barry Ernstoff. In his brief for the Supreme Court, Ernstoff adopted the statement of facts in the United States’ amicus brief, which effectively conceded that Malone’s numbers were accurate enough. The reservation was “more than 7,000 acres, of which approximately 36 percent [were] allotments held in trust for individual Indians” and forty-one additional acres were “tribal lands.”

Ernstoff did contradict Malone’s Indian population figures. Citing a tribal employee’s affidavit, he told the Supreme Court, “There were 550 members of the Suquamish Tribe at the time of the events in issue. Approximately 150 of those members lived on the Port Madison Reservation. The remaining members lived in nearby communities, which afforded better employment opportunities. In addition, 50 Indians with other tribal affiliations lived on the Reservation.”16 Otherwise, Ernstoff did not make an issue of population statistics. He could not dispute what they showed: a great majority of reservation residents and landowners were not Indians. Nor did he deny a fact that Justice Blackmun highlighted more than once: because the non-Indians were not tribe members, they could not participate as voters in Suquamish Tribe decision-making.

Population and landownership statistics were apparently of little or no importance to the district court judge. He cited a Supreme Court decision from 1909 for the principle that all tracts within Indian reservation boundaries remain part of a reservation “until separated therefrom by Congress,” and he noted that Congress never acted to diminish the Port Madison Reservation after boundaries were set in 1874. Did Blackmun, in contrast, deem the non-Indian ownership figures worthy of consideration? That could be the significance of another puzzling note in his papers—“thinness [of the] reservation.”

The case record contained possibly disconcerting claims on another subject: the recent history and origin of the Suquamish tribal government. On one hand, attorney Ernstoff—seemingly unconcerned that the tribe’s small size and limited land holdings might undercut his claim—wrote in a brief for the district court, “The Suquamish Indian Tribe … has retained full control over the tribal administration of justice on the Reservation. An extensive and comprehensive Law and Order Code was adopted by the tribe at a meeting of the full membership of the tribe.”17 On the other hand, petitioners Oliphant and Belgarde asserted in the Supreme Court that Kitsap County provided law enforcement for the reservation’s non-Indian residents—a claim the county backed with its own brief.

In one memorandum Malone declared flatly, “The Suquamish Indians have not had a tribal community at Port Madison for quite some time.” He alleged further that the tribe and its members “ceased to occupy any of the lands as a tribal community and ceased to maintain any customs, government, culture, regulations and/or authority over those lands and persons therein” until 1965, “at which time it received recognization [sic] from the United States Government” and adopted a constitution.18 Ernstoff—faced with insinuations that the tribe ...