''Duro v. Reina'', 495 U.S. 676 (1990), was a
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case in which the 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.
Background
Reservation
The
Salt River Indian Reservation
Salt is a mineral composed primarily of sodium chloride (NaCl), a chemical compound belonging to the larger class of salts; salt in the form of a natural crystalline mineral is known as rock salt or halite. Salt is present in vast quantiti ...
, located to the east of
Scottsdale, Arizona
, settlement_type = City
, named_for = Winfield Scott
, image_skyline =
, image_seal = Seal of Scottsdale (Arizona).svg
, image_blank_emblem = City of Scottsdale Script Logo.svg
, nick ...
, is home to the
Salt River Pima Maricopa Indian Community
Salt is a mineral composed primarily of sodium chloride (NaCl), a chemical compound belonging to the larger class of salts; salt in the form of a natural crystalline mineral is known as rock salt or halite. Salt is present in vast quantitie ...
. The reservation was established in 1879 by
executive order to recognize the occupation of the land by
Pima
Pima or PIMA may refer to:
People
* Pima people, the Akimel O'odham, Indigenous peoples in Arizona (U.S.) and Sonora (Mexico)
Places
* Pima, Arizona, a town in Graham County
* Pima County, Arizona
* Pima Canyon, in the Santa Catalina Mountains ...
and
Maricopa
Maricopa can refer to:
Places
* Maricopa, Arizona, United States, a city
** Maricopa Freeway, a piece of I-10 in Metropolitan Phoenix
** Maricopa station
Maricopa station is an Amtrak train station in Maricopa, Arizona, United States, servin ...
Indians. The Indians moved from the
Gila River Indian Reservation
Gila River Indian Reservation was a reservation established in 1859 by the United States government in New Mexico Territory, to set aside the lands of the Akimel O’odham (Pima) and the Piipaash (Maricopa) people along the Gila River, in what i ...
due to white settlers upstream diverting water from the Gila River to the point that the Indians could no longer farm there. Although the Indians had complained at the Gila River reservation, nothing was done to stop the theft of their water, where at the Salt River, the tribes were upstream of the settlers and did not have the same problem. In 1926, the
Bureau of Indian Affairs
The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and A ...
(BIA) created a Pima Advisory Council and in 1934 the two tribes adopted a constitution for the reservation. The current constitution dates from 1940.
Facts
Albert Duro was not a member of the Salt River Pima Maricopa Indian Community. He was from
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
and was a member of the
Torres-Martinez Desert Cahuilla Indians
The Torres Martinez Desert Cahuilla Indians is a federally recognized tribe of Cahuilla Indians, located in Imperial and Riverside counties in California.[habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...]
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
''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. Th ...
'', , the tribal court had no
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
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
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District o ...
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.
Opinion of the Court
In an opinion by
Justice Kennedy, 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
A fee is the price one pays as remuneration for rights or services. Fees usually allow for overhead, wages, costs, and markup. Traditionally, professionals in the United Kingdom (and previously the Republic of Ireland) receive a fee in contra ...
. 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
The United States Department of the Interior (DOI) is one of the executive departments of the U.S. federal government headquartered at the Main Interior Building, located at 1849 C Street NW in Washington, D.C. It is responsible for the mana ...
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
heir
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officiall ...
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.
Dissenting opinion
Justice Brennan 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, Justice 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, Justice 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.
Aftermath
Congress quickly addressed the jurisdictional gap that emerged from the Court's ruling by amending the
Indian Civil Rights Act in 1990 as part of the Department of Defense Appropriations Act of 1991, which was signed into law on November 5, 1990.
[Indian Civil Rights Act of 1968, Apr. 11, 1968, (codified as amended at ).] Nearly fourteen years later, the Supreme Court ruled on the constitutionality of this amendment to 25 U.S.C. § 1301(2) in ''
United States v. Lara
''United States v. Lara'', 541 U.S. 193 (2004), was a United States Supreme Court landmark case which held that both the United States and a Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in bo ...
'' (2004), upholding the amendment to the Indian Civil Rights Act and effectively overturning ''Duro v. Reina''.
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
References
External links
*
Commentaryfrom the
National Conference of State Legislatures
The National Conference of State Legislatures (NCSL), established in 1975, is a "nonpartisan public officials’ association composed of sitting state legislators" from the states, territories and commonwealths of the United States.
Background ...
{{Native American rights
United States Supreme Court cases
United States Native American criminal jurisdiction case law
1990 in United States case law
United States Supreme Court cases of the Rehnquist Court
Native American history of Arizona