Duro V. Reina - Dissenting Opinion

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, 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.