# Duro v. Reina

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## Dissenting Opinion

    Brennan
United States Supreme Court
495 U.S. 676
Duro v. Reina
No. 88-6546 Argued: Nov. 29, 1989. --- Decided: May 29, 1990
Syllabus
While living on one Indian Tribe's reservation, petitioner Duro, an enrolled member of another Tribe, allegedly shot and killed an Indian youth within the reservation's boundaries. He was charged with the illegal firing of a weapon on the reservation under the tribal criminal code, which is confined to misdemeanors. After the tribal court denied his petition to dismiss the prosecution for lack of jurisdiction, he filed a habeas corpus petition in the Federal District Court. The court granted the writ, holding that assertion of jurisdiction by the Tribe over a non-member Indian would constitute discrimination based on race in violation of the equal protection guarantees of the Indian Civil Rights Act of 1968, since, under Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, non-Indians are exempt from tribal courts' criminal jurisdiction. The Court of Appeals reversed. It held that the distinction drawn between a Tribe's members and nonmembers throughout United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303-which, in upholding tribal criminal jurisdiction over tribe members, stated that tribes do not possess criminal jurisdiction over "nonmembers" was "indiscriminate" and should be given little weight. Finding the historical record "equivocal," the court held that the applicable federal criminal statutes supported the view that the tribes retain jurisdiction over minor crimes committed by Indians against other Indians without regard to tribal membership. It also rejected Duro's equal protection claim, finding that his significant contacts with the prosecuting Tribe-such as residing with a Tribe member on the reservation and working for the Tribe's construction company-justified the exercise of the Tribe's jurisdiction. Finally, it found that the failure to recognize tribal jurisdiction over Duro would create a jurisdictional void, since the relevant federal criminal statute would not apply to this charge, and since the State had made no attempt, and might lack the authority, to prosecute him.
Held: An Indian tribe may not assert criminal jurisdiction over a nonmember Indian. Pp. 684-698.
(a) The rationale of Oliphant, Wheeler, and subsequent cases compels the conclusion that Indian tribes lack jurisdiction over nonmembers. Tribes lack the power to enforce laws against all who come within their borders, Oliphant, supra. They are limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining the sovereignty needed to control their own internal relations and preserve their own unique customs and social order, Wheeler, supra. Their power to prescribe and enforce rules of conduct for their own members falls outside that part of their sovereignty that they implicitly lost by virtue of their dependent status, but the power to prosecute an outsider would be inconsistent with this status and could only come from a delegation by Congress. The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. See, e.g., Moe v. Consolidated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96; Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493. Although broader retained tribal powers have been recognized in the exercise of civil jurisdiction, such jurisdiction typically involves situations arising from property ownership within the reservation or consensual relationships with the tribe or its members, and criminal jurisdiction involves a more direct intrusion on personal liberties. Since, as a nonmember, Duro cannot vote in tribal elections, hold tribal office, or sit on a tribal jury, his relationship with the Tribe is the same as the non-Indian's in Oliphant. Pp. 684-688.
(b) A review of the history of the modern tribal courts and the opinions of the Solicitor of the Department of the Interior on the tribal codes at the time of their enactment also indicates that tribal courts embody only the powers of internal self-governance. The fact that the Federal Government treats Indians as a single large class with respect to federal programs is not dispositive of a question of tribal power to treat them by the same broad classification. Pp. 688-692.
(c) This case must be decided in light of the fact that all Indians are now citizens of the United States. While Congress has special powers to legislate with respect to Indians, Indians like all citizens are entitled to protection from unwarranted intrusions on their personal liberty. This Court's cases suggest constitutional limits even on the ability of Congress to subject citizens to criminal proceedings before a tribunal, such as a tribal court, that does not provide constitutional protections as a matter of right. In contrast, retained jurisdiction over members is accepted by the Court's precedents and justified by the voluntary character of tribal membership and the concomitant right of participation in a tribal government. Duro's enrollment in one Tribe says little about his consent to the exercise of authority over him by another Tribe. Tribes are not mere fungible groups of homogenous persons among whom any Indian would feel at home, but differ in important aspects of language, culture, and tradition. The rationale of adopting a "contacts" test to determine which nonmember Indians must be subject to tribal jurisdiction would apply to non-Indian residents as well and is little more than a variation of the argument, already rejected for non-Indians, that any person entering the reservation is deemed to have given implied consent to tribal criminal jurisdiction. Pp. 692-696.
(d) This decision does not imply endorsement of a jurisdictional void over minor crime by nonmembers. Congress is the proper body to address the problem if, in fact, the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement. Pp. 696-698.
851 F.2d 1136 (CA9 1987), reversed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, which MARSHALL, J., joined, post, p. 698.
John Trebon, Flagstaff, Ariz., for petitioner.
Richard B. Wilks, Phoenix, Ariz., for respondents.
Lawrence G. Wallace, Washington, D.C., for the U.S. as amicus curiae, supporting the respondents, by special leave of Court.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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