Duro v. Reina
Encyclopedia
In Duro v. Reina, 495 U.S. 676 (1990), the U.S. Supreme Court
concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations. The decision was not well received by the tribes, because it defanged their criminal codes by depriving them of the power to enforce them against anyone except their own members. In response, Congress amended a section of the Indian Civil Rights Act, , to include the power to "exercise criminal jurisdiction over all Indians" as one of the powers of self-government.
, is home to the Salt River Pima Maricopa Indian Community
. Albert Duro was not a member of the Salt River Pima Maricopa Indian Community. He lived in California
and was a member of the Torres Martinez Desert Cahuilla
Indians; thus, he was not eligible for membership in the Salt River Pima Maricopa Indian Community, and could not vote in tribal elections, hold tribal office, or serve on tribal juries.
Duro lived on the Salt River Indian Reservation with a "woman friend" and worked for the tribe's construction company, PiCopa Construction. In 1984, he was accused of killing a 14-year-old boy inside the boundaries of the reservation. Initially, Duro was charged with murder and aiding and abetting murder in federal court, but the prosecution dismissed those charges without prejudice. Duro was handed over to Salt River tribal authorities, who charged Duro with illegally firing a weapon because under federal law, Indian tribes are limited to prosecuting misdemeanor crimes. The tribal courts denied Duro's motion to dismiss for lack of jurisdiction, and then Duro filed a petition for a writ of habeas corpus
in the United States District Court for the District of Arizona
.
The district court granted the writ and ordered Duro released. Under Oliphant v. Suquamish Indian Tribe
, , the tribal court had no jurisdiction
over non-Indians. If the district court were to find that the tribal court had jurisdiction over Indians who were not members of the tribe, it reasoned that would violate the equal protection
guarantee of freedom from discrimination based on race. The Ninth Circuit
reversed. It read the Supreme Court's decision in United States v. Wheeler, , which stated that tribal courts do not have jurisdiction over nonmembers, as supported by an "equivocal" history, and concluded that federal statutory law allowed tribal jurisdiction over all Indians, not simply members. Finally, it concluded that holding that tribes lacked criminal jurisdiction over nonmembers would create a "jurisdictional void," since only the state might have the power to prosecute the nonmember, and the state may lack the power or resources to do so. The U.S. Supreme Court agreed to review the Ninth Circuit's decision.
The sovereignty retained by the Indian tribes is "of a unique and limited character." A fully sovereign government would have the power to prosecute all crimes that take place within its territorial boundaries, but the Indian tribes are no longer sovereign in that sense. The sovereignty retained by the tribes to prosecute their own members stems from their power to govern themselves in order to maintain "their own unique customs and social order." When the tribes were relegated to dependents of the federal government, they did not lose this inherent power. Rather, the tribes were divested only of the power to regulate relations between themselves and nonmembers.
The distinction between members and nonmembers is the critical distinction in this case, not the distinction between Indian and non-Indians. Thus, states may not impose taxes on transactions between members that take place on reservations, because this would interfere with the sovereignty of tribes vis-à-vis their own members. Tribes also retain the power to regulate hunting on lands they own or lands held in trust for them by the United States, but not on lands held in fee
. And although other decisions of the Court had recognized broader retained powers in the civil context, criminal powers of Indian tribes were strictly limited to members because "the exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties." Thus, Indian tribes may only prosecute members for crimes committed on their reservations. Because Duro was not a member of the Salt River Pima-Maricopa Indian Community, that tribe did not have the power to prosecute him for the crime of illegally firing a weapon.
The tribes argued that, historically, tribes had jurisdiction over all Indians regardless of membership. For example, federal statutes used the word "Indian" without regard to membership, to refer to the "family of Indians." Courts of "Indian offenses," established by the Department of the Interior
for tribes without their own functioning court systems, historically exercised jurisdiction over all Indians without regard to membership, and continue to do so. But the Court responded that federal statutes had always referred to federal programs, and never to the power of tribes with respect to individual Indians. "The historical record prior to the creation of modern tribal courts shows little federal attention to the individual tribes' powers as between themselves or over one another's members. Scholars who do find treaties or other sources illuminating have only divided in their conclusions." After the federal government allowed the tribes to "express[] [their] retained tribal sovereignty" by creating their own tribal courts, the Secretary of the Interior still had to approve the legal codes the tribes created before the courts of Indian offenses would yield to the tribes own courts. Written opinions of the Solicitor General of the Department of the Interior consistently affirmed the power of the tribes over their own members, but went no further. In light of the historical record, the Court was not "persuaded that external criminal jurisdiction is an accepted part of the courts' function."
The Court could not ignore the fact that Duro was also a citizen of the United States, entitled to all the privileges and immunities that attach to that status. One right a citizen of the United States enjoys is the right to due process of law, which protects them from "unwarranted intrusions on their personal liberty. Criminal trial and punishment is so serious and intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States." Tribal courts do not necessarily afford defendants the full range of protections afforded defendants in federal courts by the Bill of Rights
. Because tribal members may participate in tribal governance, the Court approves of tribal members being subject to the criminal jurisdiction of their own tribes. Because nonmembers do not participate in tribal governance, the Court felt it was too great an intrusion to allow tribes to prosecute nonmembers.
Finally, the Court rejected the argument that not allowing tribes to prosecute nonmembers, those nonmembers would escape prosecution altogether for criminal activity engaged in within tribal boundaries. The federal government retains the power to prosecute felonies that take place on reservations. Tribes retain the power to expel undesirable persons. Tribal authorities may still arrest the nonmember and detain him until he can be handed over to authorities who do have the power to prosecute the nonmember. The tribe pointed out that state authorities can lack the power to prosecute crimes committed by nonmembers on reservations; Arizona, for instance, expressly disclaims this prosecutorial authority. But Congress has allowed states to assume this power, and Arizona is free to take up Congress's invitation. Finally, if the tribes still believed that there remained a "jurisdictional void," despite these options, they could persuade Congress to give it to them.
disagreed that the Court's holding did not create a jurisdictional void. "The existence of a jurisdictional gap is not an independent justification for finding tribal jurisdiction, but rather is relevant to determining congressional intent. The unlikelihood that Congress intended to create a jurisdictional void in which no sovereign has the power to prosecute an entire class of crimes should inform our understanding of the assumptions about tribal power upon which Congress legislated." Accordingly, Brennan believed the Court should have read the historical evidence in such a way that supported Congress's intent to allow Indian tribes to exert jurisdiction over nonmembers. Furthermore, Brennan did not accept the Court's argument that the fact that nonmembers were citizens of the United States counseled against allowing tribes to exert jurisdiction over nonmembers. If that was true, he said, it would also be true that tribes could not exert jurisdiction over their own members either. Nor had the Court ever held that participation in the political process was a prerequisite to exercising criminal jurisdiction over a citizen. If this were true, then states could never prosecute nonresidents or aliens.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations. The decision was not well received by the tribes, because it defanged their criminal codes by depriving them of the power to enforce them against anyone except their own members. In response, Congress amended a section of the Indian Civil Rights Act, , to include the power to "exercise criminal jurisdiction over all Indians" as one of the powers of self-government.
Facts
The Salt River Indian Reservation, located to the east of Scottsdale, ArizonaScottsdale, Arizona
Scottsdale is a city in the eastern part of Maricopa County, Arizona, United States, adjacent to Phoenix. According to the U.S. Census Bureau, as of 2010 the population of the city was 217,385...
, is home to the Salt River Pima Maricopa Indian Community
Salt River Pima Maricopa Indian Community
The Salt River Pima–Maricopa Indian Community comprises two distinct Native American tribes—the Pima and the Maricopa —many of whom were originally of the Halchidhoma tribe. The community was officially created by an Executive Order of US President Rutherford B. Hayes on June 14, 1879...
. Albert Duro was not a member of the Salt River Pima Maricopa Indian Community. He lived in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
and was a member of the Torres Martinez Desert Cahuilla
Cahuilla
The Cahuilla, Iviatim in their own language, are Indians with a common culture whose ancestors inhabited inland areas of southern California 2,000 years ago. Their original territory included an area of about . The traditional Cahuilla territory was near the geographic center of Southern California...
Indians; thus, he was not eligible for membership in the Salt River Pima Maricopa Indian Community, and could not vote in tribal elections, hold tribal office, or serve on tribal juries.
Duro lived on the Salt River Indian Reservation with a "woman friend" and worked for the tribe's construction company, PiCopa Construction. In 1984, he was accused of killing a 14-year-old boy inside the boundaries of the reservation. Initially, Duro was charged with murder and aiding and abetting murder in federal court, but the prosecution dismissed those charges without prejudice. Duro was handed over to Salt River tribal authorities, who charged Duro with illegally firing a weapon because under federal law, Indian tribes are limited to prosecuting misdemeanor crimes. The tribal courts denied Duro's motion to dismiss for lack of jurisdiction, and then Duro filed a petition for a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
in the United States District Court for the District of Arizona
United States District Court for the District of Arizona
The United States District Court for the District of Arizona is the federal district court whose jurisdiction is the state of Arizona. Court is held in the cities of Phoenix, Tucson, Flagstaff, Yuma, and Prescott. The district was created on June 20, 1910, by 36 Stat. 557...
.
The district court granted the writ and ordered Duro released. Under Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 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...
, , the tribal court had no jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
over non-Indians. If the district court were to find that the tribal court had jurisdiction over Indians who were not members of the tribe, it reasoned that would violate the equal protection
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
guarantee of freedom from discrimination based on race. The Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
reversed. It read the Supreme Court's decision in United States v. Wheeler, , which stated that tribal courts do not have jurisdiction over nonmembers, as supported by an "equivocal" history, and concluded that federal statutory law allowed tribal jurisdiction over all Indians, not simply members. Finally, it concluded that holding that tribes lacked criminal jurisdiction over nonmembers would create a "jurisdictional void," since only the state might have the power to prosecute the nonmember, and the state may lack the power or resources to do so. The U.S. Supreme Court agreed to review the Ninth Circuit's decision.
Majority opinion
The Court described this case as falling at the "intersection" of its prior decisions in Oliphant and Wheeler. In Oliphant, the Court held that the inherent sovereignty of Indian tribes did not allow them to have criminal jurisdiction over non-Indians who commit crimes on the reservation. And in Wheeler, the Court held that tribes retain their jurisdiction to prosecute their members for crimes committed on the reservation. The question this case posed was whether "the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers." The Court reasoned that the decisions in Oliphant and Wheeler compelled a negative answer to this question.The sovereignty retained by the Indian tribes is "of a unique and limited character." A fully sovereign government would have the power to prosecute all crimes that take place within its territorial boundaries, but the Indian tribes are no longer sovereign in that sense. The sovereignty retained by the tribes to prosecute their own members stems from their power to govern themselves in order to maintain "their own unique customs and social order." When the tribes were relegated to dependents of the federal government, they did not lose this inherent power. Rather, the tribes were divested only of the power to regulate relations between themselves and nonmembers.
The distinction between members and nonmembers is the critical distinction in this case, not the distinction between Indian and non-Indians. Thus, states may not impose taxes on transactions between members that take place on reservations, because this would interfere with the sovereignty of tribes vis-à-vis their own members. Tribes also retain the power to regulate hunting on lands they own or lands held in trust for them by the United States, but not on lands held in fee
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
. And although other decisions of the Court had recognized broader retained powers in the civil context, criminal powers of Indian tribes were strictly limited to members because "the exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties." Thus, Indian tribes may only prosecute members for crimes committed on their reservations. Because Duro was not a member of the Salt River Pima-Maricopa Indian Community, that tribe did not have the power to prosecute him for the crime of illegally firing a weapon.
The tribes argued that, historically, tribes had jurisdiction over all Indians regardless of membership. For example, federal statutes used the word "Indian" without regard to membership, to refer to the "family of Indians." Courts of "Indian offenses," established by the Department of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
for tribes without their own functioning court systems, historically exercised jurisdiction over all Indians without regard to membership, and continue to do so. But the Court responded that federal statutes had always referred to federal programs, and never to the power of tribes with respect to individual Indians. "The historical record prior to the creation of modern tribal courts shows little federal attention to the individual tribes' powers as between themselves or over one another's members. Scholars who do find treaties or other sources illuminating have only divided in their conclusions." After the federal government allowed the tribes to "express[] [their] retained tribal sovereignty" by creating their own tribal courts, the Secretary of the Interior still had to approve the legal codes the tribes created before the courts of Indian offenses would yield to the tribes own courts. Written opinions of the Solicitor General of the Department of the Interior consistently affirmed the power of the tribes over their own members, but went no further. In light of the historical record, the Court was not "persuaded that external criminal jurisdiction is an accepted part of the courts' function."
The Court could not ignore the fact that Duro was also a citizen of the United States, entitled to all the privileges and immunities that attach to that status. One right a citizen of the United States enjoys is the right to due process of law, which protects them from "unwarranted intrusions on their personal liberty. Criminal trial and punishment is so serious and intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States." Tribal courts do not necessarily afford defendants the full range of protections afforded defendants in federal courts by the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. Because tribal members may participate in tribal governance, the Court approves of tribal members being subject to the criminal jurisdiction of their own tribes. Because nonmembers do not participate in tribal governance, the Court felt it was too great an intrusion to allow tribes to prosecute nonmembers.
Finally, the Court rejected the argument that not allowing tribes to prosecute nonmembers, those nonmembers would escape prosecution altogether for criminal activity engaged in within tribal boundaries. The federal government retains the power to prosecute felonies that take place on reservations. Tribes retain the power to expel undesirable persons. Tribal authorities may still arrest the nonmember and detain him until he can be handed over to authorities who do have the power to prosecute the nonmember. The tribe pointed out that state authorities can lack the power to prosecute crimes committed by nonmembers on reservations; Arizona, for instance, expressly disclaims this prosecutorial authority. But Congress has allowed states to assume this power, and Arizona is free to take up Congress's invitation. Finally, if the tribes still believed that there remained a "jurisdictional void," despite these options, they could persuade Congress to give it to them.
Dissenting opinion
Justice BrennanWilliam J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
disagreed that the Court's holding did not create a jurisdictional void. "The existence of a jurisdictional gap is not an independent justification for finding tribal jurisdiction, but rather is relevant to determining congressional intent. The unlikelihood that Congress intended to create a jurisdictional void in which no sovereign has the power to prosecute an entire class of crimes should inform our understanding of the assumptions about tribal power upon which Congress legislated." Accordingly, Brennan believed the Court should have read the historical evidence in such a way that supported Congress's intent to allow Indian tribes to exert jurisdiction over nonmembers. Furthermore, Brennan did not accept the Court's argument that the fact that nonmembers were citizens of the United States counseled against allowing tribes to exert jurisdiction over nonmembers. If that was true, he said, it would also be true that tribes could not exert jurisdiction over their own members either. Nor had the Court ever held that participation in the political process was a prerequisite to exercising criminal jurisdiction over a citizen. If this were true, then states could never prosecute nonresidents or aliens.
See also
- Tribal sovereignty in the United States
- List of United States Supreme Court cases, volume 495
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court
External links
- Text of the opinion, findlaw.com
- http://www.ncsl.org/programs/statetribe/DurovReina.htm Commentary from the National Conference of State LegislaturesNational Conference of State LegislaturesThe National Conference of State Legislatures is a bipartisan non-governmental organization established in 1975 to serve the members and staff of state legislatures of the United States...
] - Information from the OYEZ project