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, since,
under
Oliphant v. Suquamish Indian Tribe, 435 U.
S. 191, non-Indians 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.
Page 495 U. S. 677
Held: An Indian tribe may not assert criminal
jurisdiction over a nonmember Indian. Pp.
495 U. S.
684-698.
(a) The rationale of
Oliphant, Wheeler, and subsequent
cases compels the conclusion that Indian tribes lack jurisdiction
over nonmembers. Tribes lack the power to enforce laws against all
who come within their borders, Oliphant,
supra. They are
limited sovereigns, necessarily subject to the overriding authority
of the United States, yet retaining the sovereignty needed to
control their own internal relations and preserve their own unique
customs and social order,
Wheeler, supra. Their power to
prescribe and enforce rules of conduct for their own members falls
outside that part of their sovereignty that they implicitly lost by
virtue of their dependent status, but the power to prosecute an
outsider would be inconsistent with this status, and could only
come from a delegation by Congress. The distinction between members
and nonmembers and its relation to self-governance is recognized in
other areas of Indian law.
See, e.g., Moe v. Salish &
Kootenai Tribes, 425 U. S. 463;
Montana v. United States, 450 U.
S. 544. Although broader retained tribal powers have
been recognized in the exercise of civil jurisdiction, such
jurisdiction typically involves situations arising from property
ownership within the reservation or consensual relationships with
the tribe or its members, and criminal jurisdiction involves a more
direct intrusion on personal liberties. Since, as a nonmember, Duro
cannot vote in tribal elections, hold tribal office, or sit on a
tribal jury, his relationship with the Tribe is the same as the
non-Indian's in
Oliphant. Pp.
495 U. S.
684-688.
(b) A review of the history of the modern tribal courts and the
opinions of the Solicitor of the Department of the Interior on the
tribal codes at the time of their enactment also indicates that
tribal courts embody only the powers of
internal
self-governance. The fact that the Federal Government treats
Indians as a single large class with respect to
federal
programs is not dispositive of a question of tribal power to treat
them by the same broad classification. Pp.
495 U. S.
688-692.
(c) This case must be decided in light of the fact that all
Indians are now citizens of the United States. While Congress has
special powers to legislate with respect to Indians, Indians, like
all citizens, are entitled to protection from unwarranted
intrusions on their personal liberty. This Court's cases suggest
constitutional limits even on the ability of Congress to subject
citizens to criminal proceedings before a tribunal, such as a
tribal court, that does not provide constitutional protections as a
matter of right. In contrast, retained jurisdiction over members is
accepted by the Court's precedents and justified by the voluntary
character
Page 495 U. S. 678
of tribal membership and the concomitant right of participation
in a tribal government. Duro's enrollment in one Tribe says little
about his consent to the exercise of authority over him by another
Tribe. Tribes are not mere fungible groups of homogeneous persons
among whom any Indian would feel at home, but differ in important
aspects of language, culture, and tradition. The rationale of
adopting a "contacts" test to determine which nonmember Indians
must be subject to tribal jurisdiction would apply to non-Indian
residents as well, and is little more than a variation of the
argument, already rejected for non-Indians, that any person
entering the reservation is deemed to have given implied consent to
tribal criminal jurisdiction. Pp.
495 U. S.
692-696.
(d) This decision does not imply endorsement of a jurisdictional
void over minor crime by nonmembers. Congress is the proper body to
address the problem if, in fact, the present jurisdictional scheme
proves insufficient to meet the practical needs of reservation law
enforcement. Pp.
495 U. S.
696-698.
851 F.2d 1136 (CA9 1987), reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and
SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, which
MARSHALL, J., joined,
post, p.
495 U. S.
698.
Page 495 U. S. 679
Justice KENNEDY delivered the opinion of the Court.
We address in this case whether an Indian tribe may assert
criminal jurisdiction over a defendant who is an Indian but not a
tribal member. We hold that the retained sovereignty of the tribe
as a political and social organization to govern its own affairs
does not include the authority to impose criminal sanctions against
a citizen outside its own membership.
I
The events giving rise to this jurisdictional dispute occurred
on the Salt River Indian Reservation. The Reservation was
authorized by statute in 1859, and established by Executive Order
of President Hayes in 1879. It occupies some 49,200 acres just east
of Scottsdale, Arizona, below the McDowell Mountains. The
Reservation is the home of the Salt River Pima-Maricopa Indian
Community, a recognized Tribe with an enrolled membership. The
petitioner in this case, Albert Duro, is an enrolled member of
another Indian Tribe, the Torres-Martinez Band of Cahuilla Mission
Indians. Petitioner is not eligible for membership in the
Pima-Maricopa Tribe. As a nonmember, he is not entitled to vote in
Pima-Maricopa elections, to hold tribal office, or to serve on
tribal juries. Salt River Pima-Maricopa Indian Community Code of
Ordinances §§ 3-1, 3-2, 5-40, App. 55-59.
Petitioner has lived most of his life in his native State of
California, outside any Indian reservation. Between March and June
1984, he resided on the Salt River Reservation with a Pima-Maricopa
woman friend. He worked for the PiCopa Construction Company, which
is owned by the Tribe.
On June 15, 1984, petitioner allegedly shot and killed a
14-year-old boy within the Salt River Reservation boundaries. The
victim was a member of the Gila River Indian Tribe of Arizona, a
separate Tribe that occupies a separate reservation. A complaint
was filed in United States District Court charging petitioner with
murder and aiding and abetting
Page 495 U. S. 680
murder in violation of 18 U.S.C. §§ 2, 1111, and 1153. [
Footnote 1] Federal agents arrested
petitioner in California, but the federal indictment was later
dismissed without prejudice on the motion of the United States
Attorney.
Page 495 U. S. 681
Petitioner then was placed in the custody of Pima-Maricopa
officers, and he was taken to stand trial in the Pima-Maricopa
Indian Community Court. The tribal court's powers are regulated by
a federal statute, which at that time limited tribal criminal
penalties to six months imprisonment and a $500 fine. 25 U.S.C. §
1302(7). The tribal criminal code is therefore confined to
misdemeanors. [
Footnote 2]
Petitioner was charged with the illegal firing of a weapon on the
Reservation. After the tribal court denied petitioner's motion to
dismiss the prosecution for lack of jurisdiction, he filed a
petition
Page 495 U. S. 682
for habeas corpus in the United States District Court for the
District of Arizona, naming the tribal chief judge and police chief
as respondents.
The District Court granted the writ, holding that assertion of
jurisdiction by the Tribe over an Indian who was not a member would
violate the equal protection guarantees of the Indian Civil Rights
Act, 25 U.S.C. § 1302
et seq. Under this Court's holding
in
Oliphant v. Suquamish Indian Tribe, 435 U.
S. 191 (1978), tribal courts have no criminal
jurisdiction over non-Indians. The District Court reasoned that, in
light of this limitation, to subject a nonmember Indian to tribal
jurisdiction where non-Indians are exempt would constitute
discrimination based on race. The Court held that respondents
failed to articulate a valid reason for the difference in treatment
under either rational basis or strict scrutiny standards, noting
that nonmember Indians have no greater right to participation in
tribal government than non-Indians, and no lesser fear of
discrimination in a court system that bars the participation of
their peers.
A divided panel of the Court of Appeals for the Ninth Circuit
reversed. 821 F.2d 1358 (1987). Both the panel opinion and the
dissent were later revised. 851 F.2d 1136 (1988). The Court of
Appeals examined our opinion in
United States v. Wheeler,
435 U. S. 313
(1978), decided 16 days after
Oliphant, a case involving a
member prosecuted by his Tribe in which we stated that tribes do
not possess criminal jurisdiction over "nonmembers." The Court of
Appeals concluded that the distinction drawn between members and
nonmembers of a tribe throughout our
Wheeler opinion was
"indiscriminate," and that the court should give "little weight to
these casual references." 851 F.2d at 1140-1141. The court also
found the historical record "equivocal" on the question of tribal
jurisdiction over nonmembers.
The Court of Appeals then examined the federal criminal statutes
applicable to Indian country.
See 18 U.S.C. §§ 1151-1153.
Finding that references to "Indians" in those
Page 495 U. S. 683
statutes and the cases construing them applied to all Indians,
without respect to their particular tribal membership, the court
concluded that "if Congress had intended to divest tribal courts of
criminal jurisdiction over nonmember Indians, they would have done
so." The tribes, it held, retain jurisdiction over minor crimes
committed by Indians against other Indians "without regard to
tribal membership." 851 F.2d at 1143.
The Court of Appeals rejected petitioner's equal protection
argument under the Indian Civil Rights Act. It found no racial
classification in subjecting petitioner to tribal jurisdiction that
could not be asserted over a non-Indian. Instead, it justified
tribal jurisdiction over petitioner by his significant contacts
with the Pima-Maricopa Community, such as residing with a member of
the Tribe on the reservation and his employment with the Tribe's
construction company. The need for effective law enforcement on the
reservation provided a rational basis for the classification.
Id. at 1145.
As a final basis for its result, the panel said that failure to
recognize tribal jurisdiction over petitioner would create a
"jurisdictional void." To treat petitioner as a non-Indian for
jurisdictional purposes would thwart the exercise of federal
criminal jurisdiction over the misdemeanor because, as the court
saw it, the relevant federal criminal statute would not apply to
this case due to an exception for crimes committed "by one Indian
against the person or property of another Indian."
See 18
U.S.C. § 1152. This would leave the crime subject only to the state
authorities, which had made no effort to prosecute petitioner, and
might lack the power to do so. 851 F.2d at 1145-1146.
Judge Sneed dissented, arguing that this Court's opinions limit
the criminal jurisdiction of an Indian tribe to its members, and
that Congress has given the Tribe no criminal jurisdiction over
nonmembers. He reasoned that the federal criminal statutes need not
be construed to create a jurisdictional
Page 495 U. S. 684
void, and stressed that recognition of jurisdiction here would
place the nonmember Indian, unlike any other citizen, in jeopardy
of trial by an alien tribunal.
Id. at 1146-1151. These
views were reiterated by three other Ninth Circuit judges in a
dissent from denial of rehearing en banc. 860 F.2d 1463 (1988). The
dissenters accepted petitioner's contention that tribal
jurisdiction subjected him to an impermissible racial
classification, and to a tribunal with the potential for bias.
Between the first and second sets of opinions from the Ninth
Circuit panel, the Eighth Circuit held that tribal courts do not
possess inherent criminal jurisdiction over persons not members of
the tribe.
Greywater v. Joshua, 846 F.2d 486 (1988). Due
to the timing of the opinions, both the Eighth Circuit and the
Ninth Circuit in this case had the benefit of the other's analysis
but rejected it. We granted certiorari to resolve the conflict, 490
U.S. 1034 (1989), and now reverse.
II
Our decisions in
Oliphant and
Wheeler provide
the analytic framework for resolution of this dispute.
Oliphant established that the inherent sovereignty of the
Indian tribes does not extend to criminal jurisdiction over
non-Indians who commit crimes on the reservation.
Wheeler
reaffirmed the longstanding recognition of tribal jurisdiction over
crimes committed by tribe members. The case before us is at the
intersection of these two precedents, for here the defendant is an
Indian, but not a member of the Tribe that asserts jurisdiction. As
in
Oliphant, the tribal officials do not claim
jurisdiction under an affirmative congressional authorization or
treaty provision, and petitioner does not contend that Congress has
legislated to remove jurisdiction from the tribes. The question we
must answer is whether the sovereignty retained by the tribes in
their dependent status within our scheme of government includes the
power of criminal jurisdiction over nonmembers.
Page 495 U. S. 685
We think the rationale of our decisions in
Oliphant and
Wheeler, as well as subsequent cases, compels the
conclusion that Indian tribes lack jurisdiction over persons who
are not tribe members. Our discussion of tribal sovereignty in
Wheeler bears most directly on this case. We were
consistent in describing retained tribal sovereignty over the
defendant in terms of a tribe's power over its members. Indeed, our
opinion in
Wheeler stated that the tribes "cannot try
nonmembers in tribal courts." 435 U.S. at
435 U. S. 326.
Literal application of that statement to these facts would bring
this case to an end. Yet respondents and
amici, including
the United States, argue forcefully that this statement in
Wheeler cannot be taken as a statement of the law, for the
party before the Court in
Wheeler was a member of the
Tribe.
It is true that
Wheeler presented no occasion for a
holding on the present facts. But the double jeopardy question in
Wheeler demanded an examination of the nature of retained
tribal power. We held that jurisdiction over a Navajo defendant by
a Navajo court was part of retained tribal sovereignty, not a
delegation of authority from the Federal Government. It followed
that a federal prosecution of the same offense after a tribal
conviction did not involve two prosecutions by the same sovereign,
and therefore did not violate the Double Jeopardy Clause. Our
analysis of tribal power was directed to the tribes' status as
limited sovereigns, necessarily subject to the overriding authority
of the United States, yet retaining necessary powers of internal
self-governance. We recognized that the "sovereignty that the
Indian tribes retain is of a unique and limited character."
Id. at
435 U. S.
323.
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.
Oliphant recognized
that the tribes can no longer be described as sovereigns in this
sense. Rather, as our discussion in
Wheeler reveals, the
retained sovereignty of the tribes is that needed to control their
own internal relations, and to preserve their own
Page 495 U. S. 686
unique customs and social order. The power of a tribe to
prescribe and enforce rules of conduct for its own members "does
not fall within that part of sovereignty which the Indians
implicitly lost by virtue of their dependent status. The areas in
which such implicit divestiture of sovereignty has been held to
have occurred are those involving the relations between an Indian
tribe and nonmembers of the tribe." 435 U.S. at
435 U. S. 326.
As we further described the distinction:
"[T]he dependent status of Indian tribes within our territorial
jurisdiction is necessarily inconsistent with their freedom
independently to determine their external relations. But the powers
of self-government, including the power to prescribe and enforce
internal criminal laws, are of a different type. They involve only
the relations among members of a tribe. . . . [T]hey are not such
powers as would necessarily be lost by virtue of a tribe's
dependent status."
Ibid.
Our finding that the tribal prosecution of the defendant in
Wheeler was by a sovereign other than the United States
rested on the premise that the prosecution was a part of the
tribe's internal self-governance. Had the prosecution been a
manifestation of external relations between the Tribe and
outsiders, such power would have been inconsistent with the tribe's
dependent status, and could only have come to the Tribe by
delegation from Congress, subject to the constraints of the
Constitution.
The distinction between members and nonmembers and its relation
to self-governance is recognized in other areas of Indian law.
Exemption from state taxation for residents of a reservation, for
example, is determined by tribal membership, not by reference to
Indians as a general class. We have held that States may not impose
certain taxes on transactions of tribal members on the reservation
because this would interfere with internal governance and
self-determination.
See Moe v. Salish & Kootenai
Tribes, 425 U. S. 463
(1976);
McClanahan v. Arizona State Tax
Page 495 U. S.
687
Comm'n, 411 U. S. 164
(1973). But this rationale does not apply to taxation of
nonmembers, even where they are Indians:
"Nor would the imposition of Washington's tax on these
purchasers contravene the principle of tribal self-government, for
the simple reason that nonmembers are not constituents of the
governing Tribe. For most practical purposes, they stand on the
same footing as non-Indians resident on the reservation. There is
no evidence that nonmembers have a say in tribal affairs or
significantly share in tribal disbursements."
Washington v. Confederated Tribes of Colville Indian
Reservation, 447 U. S. 134
(1980).
Similarly, in
Montana v. United States, 450 U.
S. 544 (1981), we held that the Crow Tribe could
regulate hunting and fishing by nonmembers on land held by the
Tribe or held in trust for the Tribe by the United States. But this
power could not extend to nonmembers' activities on land they held
in fee. Again we relied upon the view of tribal sovereignty set
forth in
Oliphant:
"Though
Oliphant only determined inherent tribal
authority in criminal matters, the principles on which it relied
support the general proposition that the inherent sovereign powers
of an Indian tribe do not extend to the activities of nonmembers of
the tribe."
450 U.S. at
450 U. S. 565
(footnote omitted).
It is true that our decisions recognize broader retained tribal
powers outside the criminal context. Tribal courts, for example,
resolve civil disputes involving nonmembers, including non-Indians.
See, e.g., Santa Clara Pueblo v. Martinez, 436 U. S.
49,
436 U. S. 65-66
(1978);
Williams v. Lee, 358 U. S. 217,
358 U. S. 223
(1959); F. Cohen, Handbook of Federal Indian Law 253 (1982 ed.)
(hereafter Cohen) ("The development of principles governing civil
jurisdiction in Indian country has been markedly different from the
development of rules dealing
Page 495 U. S. 688
with criminal jurisdiction"). Civil authority may also be
present in areas such as zoning, where the exercise of tribal
authority is vital to the maintenance of tribal integrity and
self-determination.
See, e.g., Brendale v. Confederated Tribes
and Bands of Yakima Indian Nation, 492 U.
S. 408 (1989). As distinct from criminal prosecution,
this civil authority typically involves situations arising from
property ownership within the reservation or "consensual
relationships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements."
Montana v.
United States, supra, 450 U.S. at
450 U. S. 565.
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.
The tribes are, to be sure, "a good deal more than
private
voluntary organizations,'" and are aptly described as "unique
aggregations possessing attributes of sovereignty over both their
members and their territory." United States v. Mazurie,
419 U. S. 544,
419 U. S. 557
(1975). In the area of criminal enforcement, however, tribal power
does not extend beyond internal relations among members. Petitioner
is not a member of the Pima-Maricopa Tribe, and is not now eligible
to become one. Neither he nor other members of his Tribe may vote,
hold office, or serve on a jury under Pima-Maricopa authority.
Cf. Oliphant, 435 U.S. at 435 U. S. 194,
and n. 4. For purposes of criminal jurisdiction, petitioner's
relations with this Tribe are the same as the non-Indian's in
Oliphant. We hold that the Tribe's powers over him are
subject to the same limitations.
III
Respondent and
amici argue that a review of history
requires the assertion of jurisdiction here. We disagree. The
historical record in this case is somewhat less illuminating than
in
Oliphant, but tends to support the conclusion we
Page 495 U. S. 689
reach. Early evidence concerning tribal jurisdiction over
nonmembers is lacking because
"[u]ntil the middle of this century, few Indian tribes
maintained any semblance of a formal court system. Offenses by one
Indian against another were usually handled by social and religious
pressure, and not by formal judicial processes; emphasis was on
restitution, rather than punishment."
Oliphant, 435 U.S. at
435 U. S. 197.
Cases challenging the jurisdiction of modern tribal courts are few,
perhaps because "most parties acquiesce to tribal jurisdiction"
where it is asserted.
See National American Indian Court
Judges Association, Indian Courts and the Future 48 (1978). We have
no occasion in this case to address the effect of a formal
acquiescence to tribal jurisdiction that might be made, for
example, in return for a tribe's agreement not to exercise its
power to exclude an offender from tribal lands,
see infra
at
495 U. S.
696-697.
Respondents rely for their historical argument upon evidence
that definitions of "Indian" in federal statutes and programs apply
to all Indians, without respect to membership in a particular
tribe. For example, the federal jurisdictional statutes applicable
to Indian country use the general term "Indian."
See 18
U.S.C. §§ 1152-1153. In construing such a term in the Act of June
30, 1834, ch. 161, 4 Stat. 733, this Court stated that it "does not
speak to members of a tribe, but of the race generally -- of the
family of Indians."
United States v.
Rogers, 4 How. 567,
45 U. S. 573
(1846). Respondents also emphasize that Courts of Indian Offenses,
which were established by regulation in 1883 by the Department of
the Interior and continue to operate today on reservations without
tribal courts, possess jurisdiction over all Indian offenders
within the relevant reservation.
See 25 CFR § 11.2(a)
(1989).
This evidence does not stand for the proposition respondents
advance. Congressional and administrative provisions such as those
cited above reflect the Government's treatment of Indians as a
single large class with respect to
federal
jurisdiction
Page 495 U. S. 690
and programs. Those references are not dispositive of a question
of
tribal power to treat Indians by the same broad
classification. In
Colville, supra, we noted the fallacy
of reliance upon the fact that member and nonmember Indians may
both be "Indians" under a federal definition as proof of federal
intent that inherent tribal power must affect them equally:
"[T]he mere fact that nonmembers resident on the reservation
come within the definition of 'Indian' for purposes of the Indian
Reorganization Act of 1934, 48 Stat. 988, 25 U.S.C. § 479, does not
demonstrate a congressional intent to exempt such Indians from
State taxation."
Colville, 447 U.S. at
447 U. S. 161.
Similarly, here, respondents' review of the history of
federal provisions does not sustain their claim of
tribal power.
We did note in
Wheeler that federal statutes showed
Congress had recognized and declined to disturb the traditional and
"undisputed" power of the tribes over members. 435 U.S. at
435 U. S.
324-325. But for the novel and disputed issue in the
case before us, the statutes reflect at most the tendency of past
Indian policy to treat Indians as an undifferentiated class. 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.
Compare Comment, Jurisdiction Over
Nonmember Indians on Reservations, 1980 Ariz.St.L.J. 727, 740
(treaties suggest lack of jurisdiction over nonmembers),
with Note, Who is an Indian?:
Duro v. Reina's
Examination of Tribal Sovereignty and Criminal Jurisdiction over
Nonmember Indians, 1988 B.Y. U.L.Rev. 161, 170-171 (treaties
suggest retention of jurisdiction over nonmembers).
The brief history of the tribal courts themselves provides
somewhat clearer guidance. The tribal courts were established under
the auspices of the Indian Reorganization Act
Page 495 U. S. 691
of 1934, ch. 576, 48 Stat. 984,
codified at 25 U.S.C.
§§ 461-479. The 60 years preceding the Act had witnessed a
calculated policy favoring elimination of tribal institutions, sale
of tribal lands, and assimilation of Indians as individuals into
the dominant culture. Many Indian leaders and others fought to
preserve tribal integrity, however, and the 1930's saw a move
toward toleration of Indian self-determination.
See
generally Cohen 127-153; S. Tyler, A History of Indian Policy
70-150 (1973); A. Debo, A History of the Indians of the United
States 201-300 (1970).
The Indian Reorganization Act allowed the expression of retained
tribal sovereignty by authorizing creation of new tribal
governments, constitutions, and courts. The new tribal courts
supplanted the federal Courts of Indian Offenses operated by the
Bureau of Indian Affairs. Significantly, new law and order codes
were required to be approved by the Secretary of the Interior.
See 25 U.S.C. § 476. The opinions of the Solicitor of the
Department of the Interior on the new tribal codes leave
unquestioned the authority of the tribe over its members.
Evidence on criminal jurisdiction over nonmembers is less clear,
but on balance supports the view that inherent tribal jurisdiction
extends to tribe members only. One opinion flatly declares that
"[i]nherent rights of self-government may be invoked to justify
punishment of members of the tribe, but not of nonmembers." 1
Op.Sol. 699 (Nov. 17, 1936). But this opinion refers to an earlier
opinion that speaks in broad terms of jurisdiction over Indians
generally. 55 I.D. 14 (Oct. 25, 1934), 1 Op.Sol. 445. Another
opinion disapproved a tribal ordinance covering all Indians on the
ground that the tribal constitution embraced only members. The
Solicitor suggested two alternative remedies, amendment of the
tribal constitution and delegation of federal authority from the
Secretary. 1 Op.Sol. 736 (Mar. 17, 1937). One of these options
would reflect a belief that tribes possess
Page 495 U. S. 692
inherent sovereignty over nonmembers, while the other would
indicate its absence. Two later opinions, however, give a strong
indication that the new tribal courts were not understood to
possess power over nonmembers. One mentions only adoption of
nonmembers into the tribe or receipt of delegated authority as
means of acquiring jurisdiction over nonmember Indians. 1 Op.Sol.
849 (Aug. 26, 1938). A final opinion states more forcefully that
the only means by which a tribe could deal with interloping
nonmember Indians were removal of the offenders from the
reservation or acceptance of delegated authority. 1 Op.Sol. 872
(Feb. 17, 1939).
These opinions provide the most specific historical evidence on
the question before us and, we think, support our conclusion. Taken
together with the general history preceding the creation of modern
tribal courts, they indicate that the tribal courts embody only the
powers of internal self-governance we have described. We are not
persuaded that external criminal jurisdiction is an accepted part
of the courts' function.
IV
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.
Many Indians became citizens during the era of allotment and tribal
termination around the turn of the century, and all were made
citizens in 1924.
See Cohen 142-143 (tracing history of
Indian citizenship). That Indians are citizens does not alter the
Federal Government's broad authority to legislate with respect to
enrolled Indians as a class, whether to impose burdens or benefits.
See United States v. Antelope, 430 U.
S. 641 (1977);
Morton v. Mancari, 417 U.
S. 535 (1974). In the absence of such legislation,
however, Indians, like other citizens, are embraced within our
Nation's "great solicitude that its citizens be protected . . .
from unwarranted intrusions on their personal liberty."
Oliphant, 435 U.S. at
435 U. S.
210.
Page 495 U. S. 693
Criminal trial and punishment is so serious an 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.
Ibid. We
hesitate to adopt a view of tribal sovereignty that would single
out another group of citizens, nonmember Indians, for trial by
political bodies that do not include them. As full citizens,
Indians share in the territorial and political sovereignty of the
United States. The retained sovereignty of the tribe is but a
recognition of certain additional authority the tribes maintain
over Indians who consent to be tribal members. Indians, like all
other citizens, share allegiance to the overriding sovereign, the
United States. A tribe's additional authority comes from the
consent of its members, and so, in the criminal sphere, membership
marks the bounds of tribal authority.
The special nature of the tribunals at issue makes a focus on
consent and the protections of citizenship most appropriate. While
modern tribal courts include many familiar features of the judicial
process, they are influenced by the unique customs, languages, and
usages of the tribes they serve. Tribal courts are often
"subordinate to the political branches of tribal governments," and
their legal methods may depend on "unspoken practices and norms."
Cohen 334-335. It is significant that the Bill of Rights does not
apply to Indian tribal governments.
Talton v. Mayes,
163 U. S. 376
(1896). The Indian Civil Rights Act provides some statutory
guarantees of fair procedure, but these guarantees are not
equivalent to their constitutional counterparts. There is, for
example, no right under the Act to appointed counsel for those
unable to afford a lawyer.
See 25 U.S.C. § 1302(6).
Our cases suggest constitutional limitations even on the ability
of Congress to subject American citizens to criminal proceedings
before a tribunal that does not provide constitutional protections
as a matter of right.
Cf. Reid v. Covert,
Page 495 U. S. 694
354 U. S. 1 (1957).
We have approved delegation to an Indian tribe of the authority to
promulgate rules that may be enforced by criminal sanction in
federal court,
United States v. Mazurie,
419 U. S. 544
(1975), but no delegation of authority to a tribe has to date
included the power to punish nonmembers in
tribal court.
We decline to produce such a result through recognition of inherent
tribal authority.
Tribal authority over members, who are also citizens, is not
subject to these objections. Retained criminal jurisdiction over
members is accepted by our precedents and justified by the
voluntary character of tribal membership and the concomitant right
of participation in a tribal government, the authority of which
rests on consent. This principle finds support in our cases decided
under provisions that predate the present federal jurisdictional
statutes. We held in
United States v.
Rogers, 4 How. 567 (1846), that a non-Indian could
not, through his adoption into the Cherokee Tribe, bring himself
within the federal definition of "Indian" for purposes of an
exemption to a federal jurisdictional provision. But we recognized
that a non-Indian could, by adoption, "become entitled to certain
privileges in the tribe, and make himself amenable to their laws
and usages."
Id. at (4 How.)
45 U. S. 573;
see Nofire v. United States, 164 U.
S. 657 (1897).
With respect to such internal laws and usages, the tribes are
left with broad freedom not enjoyed by any other governmental
authority in this country.
See, e.g., Santa Clara Pueblo v.
Martinez, 436 U. S. 49,
436 U. S. 56,
and n. 7 (1978) (noting that Bill of Rights is inapplicable to
tribes, and holding that the Indian Civil Rights Act of 1968, 25
U.S.C. §§ 1301-1303, does not give rise to a federal cause of
action against the tribe for violations of its provisions). This is
all the more reason to reject an extension of tribal authority over
those who have not given the consent of the governed that provides
a fundamental basis for power within our constitutional system.
See Merrion v. Jicarilla Apache Tribe, 455 U.
S. 130,
455 U. S.
172-173 (1982) (STEVENS, J., dissenting).
Page 495 U. S. 695
The United States suggests that Pima-Maricopa tribal
jurisdiction is appropriate because petitioner's enrollment in the
Torres-Martinez Band of Cahuilla Mission Indians
"is a sufficient indication of his self-identification as an
Indian, with traditional Indian cultural values, to make it
reasonable to subject him to the tribal court system, which . . .
implements traditional Indian values and customs."
Brief for United States as
Amicus Curiae 27. But the
tribes are not mere fungible groups of homogeneous persons among
whom any Indian would feel at home. On the contrary, wide
variations in customs, art, language, and physical characteristics
separate the tribes, and their history has been marked by both
intertribal alliances and animosities.
See generally
Smithsonian Institution, Handbook of North American Indians (1983);
H. Driver, Indians of North America (1961); L. Spier, Yuman Tribes
of the Gila River (1933). Petitioner's general status as an Indian
says little about his consent to the exercise of authority over him
by a particular tribe.
The Court of Appeals sought to address some of these concerns by
adopting a "contacts" test to determine which nonmember Indians
might be subject to tribal jurisdiction. But the rationale of the
test would apply to non-Indians on the reservation as readily as to
Indian nonmembers. Many non-Indians reside on reservations, and
have close ties to tribes through marriage or long employment.
Indeed, the population of non-Indians on reservations generally is
greater than the population of all Indians, both members and
nonmembers, and non-Indians make up some 35% of the Salt River
Reservation population.
See U.S. Dept. of Commerce, Bureau
of Census, Supplementary Report, American Indian Areas and Alaska
Native Villages: 1980 Census of Population 16-19. The contacts
approach is little more than a variation of the argument that any
person who enters an Indian community should be deemed to have
given implied consent to tribal criminal jurisdiction over him. We
have rejected this approach for non-Indians. It is a logical
consequence of that
Page 495 U. S. 696
decision that nonmembers, who share relevant jurisdictional
characteristics of non-Indians, should share the same
jurisdictional status.
V
Respondents and
amici contend that, without tribal
jurisdiction over minor offenses committed by nonmember Indians, no
authority will have jurisdiction over such offenders. They assert
that, unless we affirm jurisdiction in this case, the tribes will
lack important power to preserve order on the reservation, and
nonmember Indians will be able to violate the law with impunity.
[
Footnote 3] Although the
jurisdiction at stake here is over relatively minor crime, we
recognize that protection of the community from disturbances of the
peace and other misdemeanors is a most serious matter. But this
same interest in tribal law enforcement is applicable to non-Indian
reservation residents, whose numbers are often greater. It was
argued in
Oliphant that the absence of tribal jurisdiction
over non-Indians would leave a practical, if not legal, void in
reservation law enforcement.
See Brief for Respondent in
Oliphant v. Suquamish Indian Tribe, O.T.1977, No. 76-5729.
The argument that only tribal jurisdiction could meet the need for
effective law enforcement did not provide a basis for finding
jurisdiction in
Oliphant; neither is it sufficient
here.
For felonies such as the murder alleged in this case at the
outset, federal jurisdiction is in place under the Major Crimes
Act, 18 U.S.C. § 1153. The tribes also possess their traditional
and undisputed power to exclude persons whom they deem to be
undesirable from tribal lands.
See Brendale v. Confederated
Tribes & Bands of the Yakima Indian Nation, 492 U.S. at
492 U. S. 422;
New Mexico v. Mescalero
Page 495 U. S.
697
Apache Tribe, 462 U. S. 324,
462 U. S. 333
(1983);
Worcester v.
Georgia, 6 Pet. 515, 561 (1832); Cohen 252. Tribal
law enforcement authorities have the power to restrain those who
disturb public order on the reservation, and if necessary, to eject
them. Where jurisdiction to try and punish an offender rests
outside the tribe, tribal officers may exercise their power to
detain the offender and transport him to the proper
authorities.
Respondents' major objection to this last point is that, in the
circumstances presented here, there may not be any lawful authority
to punish the nonmember Indian. State authorities may lack the
power, resources, or inclination to deal with reservation crime.
Arizona, for example, specifically disclaims jurisdiction over
Indian country crimes. Ariz. Const., Art. 20, � 4. And federal
authority over minor crime, otherwise provided by the Indian
Country Crimes Act, 18 U.S.C. § 1152, may be lacking altogether in
the case of crime committed by a nonmember Indian against another
Indian, since § 1152 states that general federal jurisdiction over
Indian country crime "shall not extend to offenses committed by one
Indian against the person or property of another Indian."
Our decision today does not imply endorsement of the theory of a
jurisdictional void presented by respondents and the court below.
States may, with the consent of the tribes, assist in maintaining
order on the reservation by punishing minor crime. Congress has
provided a mechanism by which the States now without jurisdiction
in Indian country may assume criminal jurisdiction through Public
Law 280,
see n 1,
supra. Our decision here also does not address the ability
of neighboring tribal governments that share law enforcement
concerns to enter into reciprocal agreements giving each
jurisdiction over the other's members. As to federal jurisdiction
under § 1152, both academic commentators and the dissenting judge
below have suggested that the statute could be construed to cover
the conduct here.
See 851 F.2d at 1150-1151
Page 495 U. S. 698
(Sneed, J., dissenting); 1980 Ariz.St.L.J., at 743-745. Others
have disagreed. That statute is not before us, and we express no
views on the question.
If the present jurisdictional scheme proves insufficient to meet
the practical needs of reservation law enforcement, then the proper
body to address the problem is Congress, which has the ultimate
authority over Indian affairs. We cannot, however, accept these
arguments of policy as a basis for finding tribal jurisdiction that
is inconsistent with precedent, history, and the equal treatment of
Native American citizens. The judgment of the Court of Appeals is
hereby
Reversed.
[
Footnote 1]
Jurisdiction in "Indian country," which is defined in 18 U.S.C.
§ 1151,
see United States v. John, 437 U.
S. 634,
437 U. S.
648-649 (1978), is governed by a complex patchwork of
federal, state, and tribal law. For enumerated major felonies, such
as murder, rape, assault, and robbery, federal jurisdiction over
crime committed by an Indian is provided by 18 U.S.C. § 1153,
commonly known as the Major Crimes Act, which, as amended in 1986,
states:
"(a) Any Indian who commits against the person or property of
another Indian or other person any of the following offenses,
namely, murder, manslaughter, kidnaping, maiming, a felony under
chapter 109A, incest, assault with intent to commit murder, assault
with a dangerous weapon, assault resulting in serious bodily
injury, arson, burglary, robbery, and a felony under section 661 of
this title within the Indian country, shall be subject to the same
law and penalties as all other persons committing any of the above
offenses, within the exclusive jurisdiction of the United
States."
"(b) Any offense referred to in subsection (a) of this section
that is not defined and punished by federal law in force within the
exclusive jurisdiction of the United States shall be defined and
punished in accordance with the laws of the State in which such
offense was committed as are in force at the time of such
offense."
It remains an open question whether jurisdiction under § 1153
over crimes committed by Indian tribe members is exclusive of
tribal jurisdiction.
See United States v. Wheeler,
435 U. S. 313,
435 U. S. 325,
n. 22 (1978).
Another federal statute, the Indian Country Crimes Act, 18
U.S.C. § 1152, applies the general laws of the United States to
crimes committed in Indian country:
"Except as otherwise expressly provided by law, the general laws
of the United States as to the punishment of offenses committed in
any place within the sole and exclusive jurisdiction of the United
States, except the District of Columbia, shall extend to the Indian
country."
The general law of the United States may assimilate state law in
the absence of an applicable federal statute. 18 U.S.C. § 13.
Section 1152 also contains the following exemptions:
"This section shall not extend to offenses committed by one
Indian against the person or property of another Indian, nor to any
Indian committing any offense in the Indian country who has been
punished by the local law of the tribe, or to any case where, by
treaty stipulations, the exclusive jurisdiction over such offenses
is or may be secured to the Indian tribes respectively."
For Indian country crimes involving only non-lndians,
longstanding precedents of this Court hold that state courts have
exclusive jurisdiction, despite the terms of § 1152.
See New
York ex rel. Ray v. Martin, 326 U. S. 498
(1946);
United States v. McBratney, 104 U.
S. 621 (1882). Certain States may also assume
jurisdiction over Indian country crime with the consent of the
affected Tribe pursuant to Public Law 280, Act of Aug. 15, 1953,
ch. 505, 67 Stat. 588 (
codified as amended at 18 U.S.C. §
1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. § 1360).
The final source of criminal jurisdiction in Indian country is
the retained sovereignty of the tribes themselves. It is undisputed
that the tribes retain jurisdiction over their members, subject to
the question of exclusive jurisdiction under § 1153 mentioned
above.
See United States v. Wheeler, supra. The extent of
tribal jurisdiction over nonmembers is at issue here. For a
scholarly discussion of Indian country jurisdiction,
see
Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through
a Jurisdictional Maze, 18 Ariz.L.Rev. 505 (1976).
[
Footnote 2]
The Indian Civil Rights Act of 1968, Pub.L. 90-284, Tit. II, 82
Stat. 77, codified at 25 U.S.C. §§ 1301-1303, imposes certain
protections and limitations on the exercise of tribal authority.
Under a 1986 amendment to the Act, the limit on tribal court
criminal punishment is now set at one year imprisonment and a $5000
fine. The Act also provides protections similar, though not
identical, to those contained in the Bill of Rights, which does not
apply to the tribes,
see Talton v. Mayes, 163 U.
S. 376 (1896). For information about the Salt River
Tribal Court and the courts of other Tribes,
see National
American Indian Court Judges Association, Native American Tribal
Court Profiles (1984).
[
Footnote 3]
We note that a jurisdictional void would remain under the
approach of the court below. Affording tribal court jurisdiction
over Indians with a sufficient level of contacts to the reservation
would presumably leave Indians visiting or passing through the
reservation outside the tribe's jurisdiction.
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.
I
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, 435 U. S. 322
(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:
Page 495 U. S. 699
"[T]he 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
435 U. S. 323
(citations omitted). By becoming "domestic dependent nations,"
Indian tribes were divested of any power to determine their
external relations.
See id. at
435 U. S. 326.
Tribes, therefore, have no inherent power to enter into direct
diplomatic or commercial relations with foreign nations.
See Worcester v.
Georgia, 6 Pet. 515,
31 U. S.
559-560 (1832);
Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 17-18
(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,
414 U. S.
667-668 (1974);
Johnson v.
McIntosh, 8 Wheat. 543,
21 U. S. 604
(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,
492 U. S. 451
(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
435 U. S. 326.
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
495 U. S. 685.
I disagree with the Court that
Oliphant v. Suquamish Indian
Tribe, 435 U. S. 191,
435 U. S. 212
(1978), "recognized that the tribes can no longer be described
Page 495 U. S. 700
as sovereigns in this sense."
Ante at
495 U. S. 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.
A
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 tribes' dependent status.
See
ante at
495 U. S. 686.
[
Footnote 2/1] But
Oliphant established no such broad principle.
Page 495 U. S. 701
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
435 U. S. 206.
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
435 U. S.
208-212.
"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
Page 495 U. S. 702
United States except in a manner acceptable to Congress."
Id. at
435 U. S. 210
(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:
"nothing 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,
109 U. S. 571
(1883), which held that there was no federal jurisdiction over an
Indian who murdered another member of his tribe, Congress passed
the 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 non-Indians
Page 495 U. S. 703
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
435 U. S.
199-206. 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
acknowledgement 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
435 U. S.
324-326.
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,
118 U. S. 383
(1886);
See also United States v.
Rogers, 4 How. 567,
45 U. S. 573
(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
495 U. S. 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
Page 495 U. S. 704
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.
[
Footnote 2/2]
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
Page 495 U. S. 705
Indian. [
Footnote 2/3] The
Court's conclusion that such a void does not counsel in favor of
finding tribal jurisdiction,
see ante at
495 U. S. 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,
435 U.S. at
435 U. S. 206
("
I
ndian 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
Page 495 U. S. 706
of those who drafted them") (citations omitted);
Rogers,
supra, at (4 How.)
45 U. S. 573
("It can hardly be supposed that Congress intended to" treat whites
"adopted" by Indians as fitting within the Indian-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.
B
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
495 U. S. 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 495 U. S. 692
(quoting Oliphant, supra, 435 U.S. at 435 U. S.
210), 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, 435 U.S. at
435 U. S. 210
(emphasis added). The touchstone in determining the extent to which
citizens can be
Page 495 U. S. 707
subject to the jurisdiction of Indian tribes, therefore, is
whether such jurisdiction is acceptable to Congress.
Cf.
Washington v. Confederated Tribes of Colville Indian
Reservation, 447 U. S. 134,
447 U. S. 154
(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
495 U. S. 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,
358 U. S. 223
(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 (1990);
id. at
494 U. S.
279-281 (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
Page 495 U. S. 708
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. [
Footnote 2/4] 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
495 U. S. 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. [
Footnote 2/5]
See Santa
Page 495 U. S.
709
Clara Pueblo v. Martinez, 436 U. S.
49,
436 U. S. 63
(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, 25 U.S.C. § 1302(8),
requires that nonmembers not be subject to discriminatory treatment
in the tribal courts. [
Footnote
2/6] In addition, the due process clause,
ibid.
ensures that each individual is tried in a fundamentally fair
proceeding.
II
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
Page 495 U. S. 710
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.
[
Footnote 2/1]
The Court also contends that a "[l]iteral application" of
Wheeler v. United States, 435 U.
S. 313 (1978), would bring this case to an end, for
Wheeler states that "tribes
cannot try nonmembers in
tribal courts.'" Ante at 495 U. S. 685
(quoting Wheeler, supra, at 435 U. S.
326). 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 435 U. S. 326.
The statement quoted above, however, amounts to nothing more than
an inaccurate description of the holding in Oliphant.
Ibid. (citing Oliphant v. Suquamish Indian Tribe,
435 U. S. 191
(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 495 U. S. 686,
was dictum.
In transmuting this dictum into law, the Court relies on
language from
Washington v. Confederated Tribes of Colville
Indian Reservation, 447 U. S. 134,
447 U. S. 161
(1980), stating that nonmembers "'stand on the same footing as
non-Indians resident on the reservation.'"
Ante at
495 U. S. 687
(quoting
Colville, supra, at
447 U. S.
161). But this reliance is misplaced, because the
language is found in the Court's discussion of the State's power
over nonmember Indians, rather than a discussion of the tribe's
power. We have not allowed States to regulate activity on a
reservation that interferes with principles of tribal
self-government.
See Colville, supra, at
447 U. S. 161.
Thus, in
Colville, we held that the State could tax
nonmembers who purchased cigarettes on a reservation; such taxation
would not interfere with tribal self-government because nonmembers
are not constituents of the tribe.
See ibid. Yet at the
same time, we held that the tribe could also tax the nonmember
purchasers, because the power to tax was not implicitly divested as
inconsistent with the overriding interests of the Federal
Government.
See id. at
447 U. S.
153.
Similarly, the Court's citation to
Montana v. United
States, 450 U. S. 544
(1981), for the "'general proposition that the inherent sovereign
powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe,"'
ante at
495 U. S. 687
(quoting
Montana, supra, at
450 U. S.
565), is also inapposite. In
Montana, the Court
concluded that the tribe could regulate hunting and fishing by
nonmembers on lands held by the tribe, but not on lands within the
reservation no longer held by the tribe.
See 450 U.S. at
450 U. S. 564.
The Court recognized, however, that tribes have, as a matter of
inherent sovereignty, power over nonmembers when they engage in
consensual relationships with tribal members and when their conduct
"threatens or has some direct effect on the political integrity,
the economic stability, or the health or welfare of the tribe."
Id. at
450 U. S. 566
(citations omitted). The Court today provides no explanation for
why the exercise of criminal jurisdiction over a nonmember who
commits a crime on property held by the tribe "involves different
concerns,"
see ante at
495 U. S. 688,
such that tribes were implicitly divested of that power.
[
Footnote 2/2]
The Court concedes that the statutes reflect a "tendency of past
Indian policy to treat Indians as an undifferentiated class."
Ante at
495 U. S. 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.
To the contrary, the historical record reveals that Congress and
the Executive had indeed considered the question of intertribal
crime. In 1834, Congress proposed the Western Territories bill that
would have relocated all Indians to the western part of the United
States. One provision would have created a General Council to
regulate commerce among the various tribes, preserve peace, and
punish intertribal crimes.
See H.R.Rep. No. 474, 23d Cong.
1st Sess., 36 (1834). Although the bill never passed, it clearly
shows that Congress assumed that the Indians would police
intertribal disputes.
See Oliphant, 435 U.S. at
435 U. S. 202
(relying on different provision of bill). In addition, it is clear
that the Executive Branch considered the question of intertribal
disputes. In 1883, the Solicitor of the Department of the Interior
issued an opinion, adopted by the Attorney General, dealing with
the question of federal jurisdiction over an Indian accused of
murdering a member of another tribe. Presaging this Court's holding
in
Ex parte Crow Dog, 109 U. S. 556
(1883), by a few months, the Attorney General concluded that there
was no federal jurisdiction over the crime because it fell within
the Indian-against-Indian exception. 17 Op. Atty. Gen. 566 (1883).
The opinion concluded,
"[i]f no demand for Foster's surrender shall be made by one or
other of the tribes concerned, founded fairly upon a violation of
some law of one or other of them having jurisdiction of the offense
in question . . . it seems that nothing remains except to discharge
him."
Id. at 570. Given the proximity of this incident to the
Crow Dog incident, it is implausible to conclude that Congress did
not consider the situation of intertribal crimes when passing the
Major Crimes Act.
[
Footnote 2/3]
Because of the Indian-against-lndian 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,
31 U. S. 561
(1832). In 1953, however, Congress enacted Pub.L. 280,
codified
as amended at 28 U.S.C. § 1360, 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, 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, Federal Government and the State
each lack jurisdiction to prosecute the crime involved in this
case.
The Court erroneously equates the jurisdictional void that
resulted from the holding in
Oliphant with the void
created by the opinion today. Since federal courts have
jurisdiction over crimes involving non-lndians, any "void"
resulting from the holding in
Oliphant would have been
caused by the discretionary decision of the Federal Government not
to exercise its already-established jurisdiction. Such a
"practical" void,
ante at
495 U. S. 696,
is a far cry from the "legal" void,
ibid. created today,
in which no sovereign has the power to prosecute an entire class of
crimes.
[
Footnote 2/4]
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
495 U. S.
693-694, is unpersuasive, given that Congress has,
through the Indian Civil Rights Act of 1968 (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.
[
Footnote 2/5]
The ICRA provides, in relevant part, that a tribe shall not:
"(2) violate the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable search
and seizure . . . ;"
"(3) subject any person for the same offense to be twice put in
jeopardy;"
"(4) compel any person in any criminal case to be a witness
against himself;"
"
* * * *"
"(6) deny to any person in a criminal proceeding the right to a
speedy and public trial, to be informed of the nature and cause of
the accusation, to be confronted with the witnesses against him, to
have compulsory process for obtaining witnesses in his favor, and
at his own expense to have the assistance of counsel for his
defense;"
"(7) require excessive bail, impose excessive fines, inflict
cruel and unusual punishments . . . ;"
"(8) deny to any person within its jurisdiction the equal
protection of its laws or deprive any person of liberty or property
without due process of law;"
"(9) pass any bill of attainder or
ex post facto law;
or"
"(10) deny to any person accused of an offense punishable by
imprisonment, the right, upon request, to a trial by jury of not
less than six persons."
25 U.S.C. § 1302.
[
Footnote 2/6]
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.