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The exercise of criminal jurisdiction by an Indian tribe 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. In the area of criminal enforcement, however, tribal power does not extend beyond internal relations among members.
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 nonmember 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, nonIndians 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 -- 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.
Could the Salt River Pima-Maricopa Indian Community assert criminal jurisdiction over defendant, who was an Indian but not a member of the Pima-Maricopa tribe?
The Court held that an Indian tribe may not assert criminal jurisdiction over a nonmember Indian. The retained sovereignty of the tribe as a political and social organization to govern its own affairs did not include the authority to impose criminal sanctions against a citizen outside its own membership. While Indian tribes had the power to prescribe and enforce rules of conduct for their own members, they lacked jurisdiction over persons who were not tribe members. In the area of criminal enforcement, tribal power did not extend beyond internal relations among members. Defendant was not a member of the Pima-Maricopa Tribe and was not eligible to become one. His general status as an Indian said little about his consent to the exercise of authority over him by a particular tribe. The Court concluded that if the present jurisdictional scheme proved insufficient to meet the practical needs of reservation law enforcement, then the proper body to address the problem was the U.S. Congress, which had the ultimate authority over Indian affairs.