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SUPREME COURT OF THE UNITED STATES No. 88-6546 110 S. Ct. 2053, 495 U.S. 676, 109 L. Ed. 2d 693, 58 U.S.L.W. 4643, 1990.SCT.42758 <> decided: May 29, 1990. DUROv.REINA, CHIEF OF POLICE, SALT RIVER DEPARTMENT OF PUBLIC SAFETY, SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. John Trebon, by appointment of the Court, 490 U.S. 1079, argued the cause and filed briefs for petitioner. Richard B. Wilks argued the cause for respondents. With him on the brief was M.J. Mirkin. Deputy solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Stewart, Harriet S. Shapiro, Robert L. Klarquist, Edward J. Shawaker, William G. Lavell, and Scott Keep.*fn* Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy Author: Kennedy


Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy

Author: Kennedy

 JUSTICE KENNEDY delivered the opinion of the Court.

We address in this case whether an Indian tribe may assert criminal jurisdiction over a defendant who is an Indian but not a tribal member. We hold that the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership.


The events giving rise to this jurisdictional dispute occurred on the Salt River Indian Reservation. The reservation was authorized by statute in 1859, and established by Executive Order of President Hayes in 1879. It occupies some 49,200 acres just east of Scottsdale, Arizona, below the McDowell Mountains. The reservation is the home of the Salt River Pima-Maricopa Indian Community, a recognized Tribe with an enrolled membership. Petitioner in this case, Albert Duro, is an enrolled member of another Indian Tribe, the Torres-Martinez Band of Cahuilla Mission Indians. Petitioner is not eligible for membership in the Pima-Maricopa Tribe. As a nonmember, he is not entitled to vote in Pima-Maricopa elections, to hold tribal office, or to serve on tribal juries. Salt River Pima-Maricopa Indian Community Code or Ordinances §§ 3-1, 3-2, 5-40, App. 55-59.

Petitioner has lived most of his life in his native State of California, outside any Indian reservation. Between March and June 1984, he resided on the Salt River Reservation with a Pima-Maricopa woman friend. He worked for the PiCopa Construction Company, which is owned by the Tribe.

On June 15, 1984, petitioner allegedly shot and killed a 14-year-old boy within the Salt River Reservation boundaries. The victim was a member of the Gila River Indian Tribe of Arizona, a separate Tribe that occupies a separate reservation. A complaint was filed in United States District Court charging petitioner with murder and aiding and abetting murder in violation of 18 U.S.C. §§ 2, 1111, and 1153.*fn1 Federal agents arrested petitioner in California, but the federal indictment was later dismissed without prejudice on the motion of the United States Attorney. Petitioner then was placed in the custody of Pima-Maricopa officers, and he was taken to stand trial in the Pima-Maricopa Indian Community Court. The tribal court's powers are regulated by a federal statute, which at that time limited tribal criminal penalties to six months' imprisonment and a $500 fine. 25 U.S.C. § 1302(7) (1982 ed.). The tribal criminal code is therefore confined to misdemeanors.*fn2 Petitioner was charged with the illegal firing of a weapon on the reservation. After the tribal court denied petitioner's motion to dismiss the prosecution for lack of jurisdiction, he filed a petition for habeas corpus in the United States District Court for the District of Arizona, naming the tribal chief judge and police chief as respondents.

The District Court granted the writ, holding that assertion of jurisdiction by the Tribe over an Indian who was not a member would violate the equal protection guarantees of the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq. Under this Court's holding in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), tribal courts have no criminal jurisdiction over non-Indians. The District Court reasoned that, in light of this limitation, to subject a nonmember Indian to tribal jurisdiction where non-Indians are exempt would constitute discrimination based on race. The Court held that respondents failed to articulate a valid reason for the difference in treatment under either rational-basis or strict-scrutiny standards, noting that nonmember Indians have no greater right to participation in tribal government than non-Indians, and no lesser fear of discrimination in a court system that bars the participation of their peers.

A divided panel of the Court of Appeals for the Ninth Circuit reversed. 821 F.2d 1358 (1987). Both the panel opinion and the dissent were later revised. 851 F.2d 1136 (1988). The Court of Appeals examined our opinion in United States v. Wheeler, 435 U.S. 313 (1978), decided 16 days after Oliphant, a case involving a member prosecuted by his Tribe in which we stated that tribes do not possess criminal jurisdiction over "nonmembers." The Court of Appeals concluded that the distinction drawn between members and nonmembers of a tribe throughout our Wheeler opinion was "indiscriminate," and that the court should give "little weight to these casual references." 851 F.2d, at 1140-1141. The court also found the historical record "equivocal" on the question of tribal jurisdiction over nonmembers.

The Court of Appeals then examined the federal criminal statutes applicable to Indian country. See 18 U.S.C. §§ 1151-1153. Finding that references to "Indians" in those statutes and the cases construing them applied to all Indians, without respect to their particular tribal membership, the court concluded that "if Congress had intended to divest tribal courts of criminal jurisdiction over nonmember Indians they would have done so." The tribes, it held, retain jurisdiction over minor crimes committed by Indians against other Indians "without regard to tribal membership." 851 F.2d, at 1143.

The Court of Appeals rejected petitioner's equal protection argument under the Indian Civil Rights Act of 1968. It found no racial classification in subjecting petitioner to tribal jurisdiction that could not be asserted over a non-Indian. Instead, it justified tribal jurisdiction over petitioner by his significant contacts with the Pima-Maricopa Community, such as residing with a member of the Tribe on the reservation and his employment with the Tribe's construction company. The need for effective law enforcement on the reservation provided a rational basis for the classification. Id., at 1145.

As a final basis for its result, the panel said that failure to recognize tribal jurisdiction over petitioner would create a "jurisdictional void." To treat petitioner as a non-Indian for jurisdictional purposes would thwart the exercise of federal criminal jurisdiction over the misdemeanor because, as the court saw it, the relevant federal criminal statute would not apply to this case due to an exception for crimes committed " by one Indian against the person or property of another Indian." See 18 U.S.C. § 1152. This would leave the crime subject only to the state authorities, which had made no effort to prosecute petitioner, and might lack the power to do so. 851 F.2d, at 1145-1146.

Judge Sneed dissented, arguing that this Court's opinions limit the criminal jurisdiction of an Indian tribe to its members, and that Congress has given the Tribe no criminal jurisdiction over nonmembers. He reasoned that the federal criminal statutes need not be construed to create a jurisdictional void, and stressed that recognition of jurisdiction here would place the nonmember Indian, unlike any other citizen, in jeopardy of trial by an alien tribunal. Id., at 1146-1151. These views were reiterated by three other Ninth Circuit judges in a dissent from denial of rehearing en banc. 860 F.2d 1463 (1988). The dissenters accepted petitioner's contention that tribal jurisdiction subjected him to an impermissible racial classification and to a tribunal with the potential for bias.

Between the first and second sets of opinions from the Ninth Circuit panel, the Eighth Circuit held that tribal courts do not possess inherent criminal jurisdiction over persons not members of the tribe. Greywater v. Joshua, 846 F.2d 486 (1988). Due to the timing of the opinions, both the Eighth Circuit and the Ninth Circuit in this case had the benefit of the other's analysis but rejected it. We granted certiorari to resolve the conflict, 490 U.S. 1034 (1989), and now reverse.


Our decisions in Oliphant and Wheeler provide the analytic framework for resolution of this dispute. Oliphant established that the inherent sovereignty of the Indian tribes does not extend to criminal jurisdiction over non-Indians who commit crimes on the reservation. Wheeler reaffirmed the longstanding recognition of tribal jurisdiction over crimes committed by tribe members. The case before us is at the intersection of these two precedents, for here the defendant is an Indian, but not a member of the Tribe that asserts jurisdiction. As in Oliphant, the tribal officials do not claim jurisdiction under an affirmative congressional authorization or treaty provision, and petitioner does not contend that Congress has legislated to remove jurisdiction from the tribes. The question we must answer is whether the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers. We think the rationale of our decisions in Oliphant and Wheeler, as well as subsequent cases, compels the conclusion that Indian tribes lack jurisdiction over persons who are not tribe members. Our discussion of tribal sovereignty in Wheeler bears most directly on this case. We were consistent in describing retained tribal sovereignty over the defendant in terms of a tribe's power over its members. Indeed, our opinion in Wheeler stated that the tribes "cannot try non-members in tribal courts." 435 U.S., at 326. Literal application of that statement to these facts would bring this case to an end. Yet respondents and amici, including the United States, argue forcefully that this statement in Wheeler cannot be taken as a statement of the law, for the party before the Court in Wheeler was a member of the Tribe.

It is true that Wheeler presented no occasion for a holding on the present facts. But the double jeopardy question in Wheeler demanded an examination of the nature of retained tribal power. We held that jurisdiction over a Navajo defendant by a Navajo court was part of retained tribal sovereignty, not a delegation of authority from the Federal Government. It followed that a federal prosecution of the same offense after a tribal conviction did not involve two prosecutions by the same sovereign, and therefore did not violate the Double Jeopardy Clause. Our analysis of tribal power was directed to the tribes' status as limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining necessary powers of internal self-governance. We recognized that the "sovereignty that the Indian tribes retain is of a unique and limited character." Id., at 323.

A basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens. Oliphant recognized that the tribes can no longer be described as sovereigns in this sense. Rather, as our discussion in Wheeler reveals, the retained sovereignty of the tribes is that needed to control their own internal relations, and to preserve their own unique customs and social order. The power of a tribe to prescribe and enforce rules of conduct for its own members "does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe." 435 U.S., at 326. As we further described the distinction:

"[T]he dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. . . . [T]hey are not such powers as would necessarily be lost by virtue of a tribe's dependent status." Ibid.

Our finding that the tribal prosecution of the defendant in Wheeler was by a sovereign other than the United States rested on the premise that the prosecution was a part of the tribe's internal self-governance. Had the prosecution been a manifestation of external relations between the Tribe and outsiders, such power would have been inconsistent with the Tribe's dependent status, and could only have come to the Tribe by delegation from Congress, subject to the constraints of the Constitution.

The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. Exemption from state taxation for residents of a reservation, for example, is determined by tribal membership, not by reference to Indians as a general class. We have held that States may not impose certain taxes on transactions of tribal members on the reservation because this would interfere with internal governance and self-determination. See Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); ...

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