Duro V. Reina - Majority Opinion

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. 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 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.