implicit divestiture

What happened

Most limits on tribal power come from treaties or statutes. Implicit divestiture is different: the Court says some powers are lost without any such text, because they are inconsistent with a tribe's dependent status. In United States v. Wheeler (1978), the Court said tribes keep "those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."

The leading case is Oliphant v. Suquamish Indian Tribe (1978). The Court noted that "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.'" It held that tribal courts "do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress."

Montana v. United States (1981) carried the idea into civil cases. It said that the principles Oliphant relied on "support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," subject to two exceptions.

Congress can lift the limits. In United States v. Lara (2004), the Court held that Congress has the constitutional power to lift restrictions on tribes' criminal jurisdiction over nonmember Indians. The VAWA acts of 2013 and 2022 did so for non-Indians in covered crimes.

Good to know. 'Implicit divestiture' is the common label for this doctrine; the Court's opinions use phrases such as 'implicit loss' and 'inconsistent with their status.'

Summarized with AI assistance from 6 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error