This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. In response, this Comment proposes a politically and constitutionally acceptable statute that would abrogate Oliphant and return criminal jurisdiction to the tribes.
In addition, this Comment analyzes a topic that has not yet been addressed by courts or scholarship: whether reaffirming Indian tribal court jurisdiction over non-Indians would recognize inherent tribal authority, rather than delegate federal prosecutorial power. A delegation of federal prosecutorial power would force tribal courts to adopt all of the procedural and doctrinal rules of federal courts. Although the Supreme Court has written that statutorily overruling Oliphant would be considered a federal delegation of authority, this Comment argues that the Supreme Court has incorrectly assessed the nature of tribal sovereignty. Instead, it suggests that Indian tribal court jurisdiction over non-Indians has been a dormant tribal power ever since the tribes were incorporated into the United States, and that this power is merely held in trust by the federal government until such time as tribes are able to assume such jurisdictional responsibility. Therefore, Congress may relax its control over the tribes without delegating federal power. A congressional reaffirmation of tribal court jurisdiction, under inherent tribal sovereignty, would allow tribal courts to maintain their culturally sensitive procedures while ensuring justice on reservations.57-2-5