# Duro v. Reina/Dissent Brennan

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Justice BRENNAN with whom Justice MARSHALL joins, dissenting.
The Court today holds that an Indian tribal court has no power to exercise criminal jurisdiction over a defendant who is an Indian but not a tribal member. The Court concedes that Indian tribes never expressly relinquished such power. Instead, the Court maintains that tribes implicitly surrendered the power to enforce their criminal laws against nonmember Indians when the tribes became dependent on the Federal Government. Because I do not share such a parsimonious view of the sovereignty retained by Indian tribes, I respectfully dissent.
* The powers of Indian tribes are " 'inherent powers of a limited sovereignty which has never been extinguished.' " United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978) (quoting F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original)). When the tribes were incorporated into the territory of the United States and accepted the protection of the Federal Government, they necessarily lost some of the sovereign powers they had previously exercised. In Wheeler, we explained: "The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." 435 U.S., at 323, 98 S.Ct., at 1086 (citations omitted).
By becoming "domestic dependent nations," Indian tribes were divested of any power to determine their external relations. See id., at 326, 98 S.Ct., at 1087-88. Tribes, therefore, have no inherent power to enter into direct diplomatic or commercial relations with foreign nations. See Worcester v. Georgia, 6 Pet. 515, 559-560, 8 L.Ed. 483 (1832); Cherokee Nation v. Georgia, 5 Pet. 1, 17-18, 8 L.Ed. 25 (1831). In addition, Indian tribes may not alienate freely the land they occupy to non-Indians. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-668, 94 S.Ct. 772, 777-778, 39 L.Ed.2d 73 (1974); Johnson v. McIntosh, 8 Wheat. 543, 604, 5 L.Ed. 681 (1823). A tribe is implicitly divested of powers to have external relations because they are necessarily inconsistent with the overriding interest of the greater sovereign. See Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 451, 109 S.Ct. 2994, 3018, 106 L.Ed.2d 343 (1989) (BLACKMUN, J., dissenting).
By contrast, we have recognized that tribes did not "surrender [their] independence-[the] right to self-government, by associating with a stronger [power], and taking its protection." Worcester, supra, at (6 Pet.) 560-561. Tribes have retained "the powers of self-government, including the power to prescribe and enforce internal criminal laws." Wheeler, supra, 435 U.S., at 326, 98 S.Ct., at 1088. I agree with the Court that "[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." Ante, at 685. I disagree with the Court that Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 98 S.Ct. 1011, 1022-23, 55 L.Ed.2d 209 (1978), "recognized that the tribes can no longer be described as sovereigns in this sense." Ante, at 685. In Oliphant, the Court held that tribes did not have the power to exercise criminal jurisdiction over non-Indians because such power was inconsistent with the overriding national interest. But it does not follow that because tribes lost their power to exercise criminal jurisdiction over non-Indians, they also lost their power to enforce criminal laws against Indians who are not members of their tribe.
In Oliphant, the Court did not point to any statutes or treaties expressly withdrawing tribal power to exercise criminal jurisdiction over nonmembers, but instead held that the tribe was implicitly divested of such power. The Court today appears to read Oliphant as holding that the exercise of criminal jurisdiction over anyone but members of the tribe is inconsistent with the tribe's dependent status. See ante, at 686. But Oliphant established no such broad principle. Rather, the holding in Oliphant, supra, was based on an analysis of Congress' actions with respect to non-Indians. The Court first considered the "commonly shared presumption of Congress, the Executive Branch, and lower federal courts that tribal courts do not have the power to try non-Indians." Id., at 206, 98 S.Ct., at 1019. Then the Court declared that the power to punish non-Indians was inconsistent with the tribes' dependent status, for such power conflicted with the overriding interest of the Federal Government in protecting its citizens against "unwarranted intrusions" on their liberty. See id., at 208-212, 98 S.Ct., at 1020-1023. "By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily [gave] up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress." Id., at 210, 98 S.Ct., at 1021 (emphasis added).
A consideration of the relevant congressional enactments reveals that the opposite conclusion is appropriate with respect to nonmember Indians. In 1790, when Congress first addressed the rules governing crimes in Indian country, it made crimes committed by citizens or inhabitants of the United States against Indians punishable according to the laws of the State in which the offense occurred and directed the state courts to take jurisdiction of such offenses. See The Trade and Intercourse Act of 1790, 1 Stat. 138, ch. 33. In 1817, Congress withdrew that jurisdiction from the States and provided for federal jurisdiction (and the application of federal enclaves law) over crimes committed within Indian country. Congress made an explicit exception for crimes committed by an Indian against another Indian, however: "[N]othing in this act shall be so construed . . . to extend to any offence committed by one Indian against another, within any Indian boundary." 3 Stat. 383, ch. 92, codified, as amended, at 18 U.S.C. § 1152. In 1854, Congress again amended the statute to proscribe prosecution in federal court of an Indian who had already been tried in tribal court. 10 Stat. 270, ch. 30. Finally, in 1885, Congress made a limited but significant departure from its consistent practice of leaving to Indian tribes the task of punishing crimes committed by Indians against Indians. In response to this Court's decision in Ex parte Crow Dog, 109 U.S. 556, 571, 3 S.Ct. 396, 405-06, 27 L.Ed. 1030 (1883), which held that there was no federal jurisdiction over an Indian who murdered another member of his tribe, Congress passed the Indian Major Crimes Act, 23 Stat. 385, ch. 341, codified, as amended, at 18 U.S.C. § 1153, under which certain enumerated crimes, including murder, manslaughter, and arson, fall within federal jurisdiction when involving two Indians.
In Oliphant, the Court relied on this statutory background to conclude that the exercise of tribal jurisdiction over nonIndians was inconsistent with the tribes' dependent status, for from the early days Congress had provided for federal jurisdiction over crimes involving non-Indians. Thus, from these affirmative enactments, it could be inferred that the tribes were tacitly divested of jurisdiction over non-Indians. See Oliphant, 435 U.S., at 199-206, 98 S.Ct., at 1016-1020. But applying the same reasoning, the opposite result obtains with respect to tribal jurisdiction over nonmember Indians. From the very start, Congress has consistently exempted Indian-against-Indian crimes from the reach of federal or state power; although the exemption in the 1790 statute was implicit, it was made explicit in the 1817 Act. Moreover, the provision in the 1854 Act exempting from federal jurisdiction any Indian who had been previously punished by a tribal court amounts to an express acknowledgment by Congress of tribal jurisdiction over Indians who commit crimes in Indian country. The appropriate inference to be drawn from this series of statutes excluding Indian-against-Indian crimes from federal jurisdiction is that tribes retained power over those crimes involving only Indians. See Wheeler, 435 U.S., at 324-326, 98 S.Ct. at 1086-1088.
The Court acknowledges that these enactments support the inference that tribes retained power over members but concludes that no such inference can be drawn about tribal power over nonmembers. The Court finds irrelevant the fact that we have long held that the term "Indian" in these statutes does not differentiate between members and nonmembers of a tribe. See United States v. Kagama, 118 U.S. 375, 383, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886); see also United States v. Rogers, 4 How. 567, 573, 11 L.Ed. 1105 (1846) (the exception "does not speak of members of a tribe, but of the race generally,-of the family of Indians"). Rather, the Court concludes that the federal definition of "Indian" is relevant only to federal jurisdiction and is "not dispositive of a question of tribal power." Ante, at 690. But this conclusion is at odds with the analysis in Oliphant in which the congressional enactments served as evidence of a "commonly shared presumption" that tribes had ceded their power over non-Indians. Similarly, these enactments reflect the congressional presumption that tribes had power over all disputes between Indians regardless of tribal membership.
By refusing to draw this inference from repeated congressional actions, the Court today creates a jurisdictional void in which neither federal nor tribal jurisdiction exists over nonmember Indians who commit minor crimes against another Indian. The Court's conclusion that such a void does not counsel in favor of finding tribal jurisdiction, see ante, at 696, misses the point. 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. See Oliphant, supra, 435 U.S., at 206, 98 S.Ct., at 1019-20 (" 'Indian law' draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them") (citations omitted); Rogers, at 4 How. 573 ("It can hardly be supposed that Congress intended to" treat whites "adopted" by Indians as fitting within the Indian-against-Indian exception). Since the scheme created by Congress did not differentiate between member and nonmember Indians, it is logical to conclude that Congress did not assume that the power retained by tribes was limited to member Indians.
The Court also concludes that because Indians are now citizens of the United States, the exercise of criminal jurisdiction over a nonmember of the tribe is inconsistent with the tribe's dependent status. Stated differently, the Court concludes that regardless of whether tribes were assumed to retain power over nonmembers as a historical matter, the tribes were implicitly divested of this power in 1924 when Indians became full citizens. See ante, at 692 ("Whatever might be said of the historical record, we must view it in light of petitioner's status as a citizen of the United States"). The Court reasons that since we held in Oliphant that the exercise of criminal jurisdiction over non-Indians conflicted with the Federal Government's " 'great solicitude that its citizens be protected . . . from unwarranted intrusions on their personal liberty,' " ante at 692 (quoting Oliphant, 435 U.S., at 210, 98 S.Ct., at 1021), the exercise of criminal jurisdiction over nonmember Indians is also inconsistent with this overriding national interest.
There are several problems with this argument. First, in Oliphant the Court held merely that "[b]y submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress." Oliphant, supra, at 210, 98 S.Ct., at 1021 (emphasis added). The touchstone in determining the extent to which citizens can be subject to the jurisdiction of Indian tribes, therefore, is whether such jurisdiction is acceptable to Congress. Cf. Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 154, 100 S.Ct. 2069, 2081-82, 65 L.Ed.2d 10 (1980) ("[I]t must be remembered that tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States"). In Oliphant, federal statutes made clear that the prosecution of non-Indians in tribal courts is not acceptable to Congress. By contrast, the same statutes reflect the view that the prosecution of all Indians in tribal courts is acceptable to Congress.
Moreover, this argument proves too much. If tribes were implicitly divested of their power to enforce criminal laws over nonmember Indians once those Indians became citizens, the tribes were also implicitly divested of their power to enforce criminal laws over their own members who are now citizens as well. The Court contends, however, that tribal members are subject to tribal jurisdiction because of "the voluntary character of tribal membership and the concomitant right of participation in a tribal government." Ante, at 694. But we have not required consent to tribal jurisdiction or participation in tribal government as a prerequisite to the exercise of civil jurisdiction by a tribe, see Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251 (1959), and the Court does not explain why such a prerequisite is uniquely salient in the criminal context. Nor have we ever held that participation in the political process is a prerequisite to the exercise of criminal jurisdiction by a sovereign. If such were the case, a State could not prosecute nonresidents, and this country could not prosecute aliens who violate our laws. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); id., at 279-281, 110 S.Ct., at 1068-1069 (BRENNAN, J., dissenting). The commission of a crime on the reservation is all the "consent" that is necessary to allow the tribe to exercise criminal jurisdiction over the nonmember Indian.
Finally, the Court's "consent" theory is inconsistent with the underlying premise of Indian law, namely, that Congress has plenary control over Indian affairs. Congress presumably could pass a statute affirmatively granting Indian tribes the right to prosecute anyone who committed a crime on the reservation Indian or non-Indian-unconstrained by the fact that neither of these groups participate in tribal government. It is therefore unclear why the exercise of power retained by the tribes-power not divested by Congress-is subject to such a constraint.
More understandable is the Court's concern that nonmembers may suffer discrimination in tribal courts because such courts are "influenced by the unique customs, languages, and usages of the tribes they serve." Ante, at 693. But Congress addressed this problem when it passed the ICRA, 25 U.S.C. § 1301 et seq., which extended most of the Bill of Rights to any person tried by a tribal court. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 63, 98 S.Ct. 1670, 1679-80, 56 L.Ed.2d 106 (1978). In addition, the ICRA provides the remedy of habeas corpus to challenge the legality of any detention order by a tribe. 25 U.S.C. § 1303. The equal protection provision, § 1302(8), requires that nonmembers not be subject to discriminatory treatment in the tribal courts. In addition, the due process clause, ibid., ensures that each individual is tried in a fundamentally fair proceeding.
This country has pursued contradictory policies with respect to the Indians. Since the passage of the Indian Reorganization Act of 1934, 48 Stat. 984, ch. 576, § 1, codified at 25 U.S.C. § 461, however, Congress has followed a policy of promoting the independence and self-government of the various tribes. The Court's decision today not only ignores the assumptions on which Congress originally legislated with respect to the jurisdiction over Indian crimes, but also stands in direct conflict with current congressional policy. I respectfully dissent.

## Notes

* ↑ The Court also contends that a "[l]iteral application" of United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), would bring this case to an end, for Wheeler states that "tribes 'cannot try nonmembers in tribal courts.' " Ante, at 685 (quoting Wheeler, supra, at 326, 98 S.Ct., at 1087-88). In Wheeler, the Court held that the Double Jeopardy Clause was not violated by successive prosecution of a tribal member in a tribal court and then in a federal court because the prosecutions were conducted by different sovereigns. In answering the double jeopardy question, the Court was required to consider the source of tribal power to punish its own members, and the Court unequivocally stated that the power to punish members was part of the tribe's retained sovereignty. 435 U.S., at 326, 98 S.Ct., at 1087-88. The statement quoted above, however, amounts to nothing more than an inaccurate description of the holding in Oliphant. 435 U.S., at 326, 98 S.Ct., at 107-108 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978)). Moreover, given that the defendant in Wheeler was a member of the Tribe that tried him, the discussion of tribal power over nonmembers, also quoted by the Court today, ante, at 686, was dictum.
* ↑ The Court concedes that the statutes reflect a "tendency of past Indian policy to treat Indians as an undifferentiated class." Ante, at 690. Nevertheless the Court rejects the logical implications of such a policy, reasoning that "[t]he historical record prior to the creation of modern tribal courts shows little federal attention to the individual tribes' power as between themselves or over one another's members." Ibid.
* ↑ Because of the Indian-against-Indian exception in 18 U.S.C. § 1152, federal courts have no jurisdiction over such crimes. In addition, it has long been accepted that States do not have power to exercise criminal jurisdiction over crimes involving Indians on the reservation. See Worcester v. Georgia, 6 Pet. 515, 561, 8 L.Ed. 483 (1832). In 1953, however, Congress enacted Pub.L. 280, codified, as amended, at 18 U.S.C. § 1162, which allows named States to assume jurisdiction over all crimes within Indian country. In section 401(a) of the Indian Civil Rights Act of 1968, (ICRA), 82 Stat. 79, codified at 25 U.S.C. § 1321(a), Congress modified Pub.L. 280 to require the affected tribe to consent to a State's assumption of jurisdiction. Arizona has not accepted jurisdiction over crimes occurring on Indian reservations. Thus, under the Court's holding today, the tribe, the Federal Government, and the State each lack jurisdiction to prosecute the crime involved in this case.
* ↑ The Court's suggestion that there might be some independent constitutional limitation on the ability of Congress to subject its citizens to prosecution by tribal courts that do not provide a criminal defendant constitutional rights, see ante, at 693-694, is unpersuasive given that Congress has, through the ICRA, 25 U.S.C. § 1301 et seq., extended to those tried by a tribal court most of the protections of the Bill of Rights, see n. 5, infra, most importantly, the right to due process. 25 U.S.C. § 1302(8). Moreover, the Court's argument proves too much, for it does not account for why members who are also citizens would be subject to tribal jurisdiction; participation in tribal government cannot in and of itself constitute a knowing and intelligent waiver of constitutional rights.
* ↑ The ICRA provides, in relevant part, that a tribe shall not:
* ↑ Petitioner argues that the exercise of jurisdiction over a nonmember violates the equal protection provision of the ICRA, 25 U.S.C. § 1302(8), because the Tribe does not exercise jurisdiction over non-Indians. This argument is without merit. The statutory equal protection provision requires the Tribe to refrain from denying "to any person within its jurisdiction the equal protection of its laws." Ibid. (emphasis added). Thus, petitioner's argument simply begs the question of who is within the Tribe's jurisdiction. If nonmember Indians are subject to the criminal jurisdiction of the Tribe, the exercise of jurisdiction in this case does not violate the equal protection provision of the ICRA. Petitioner would state a valid equal protection claim, however, if he could show that in the exercise of its jurisdiction, the Tribe treated him differently than others who are also subject to its jurisdiction.
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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