Duro v. Reina
1990 U.S. LEXIS 2696, 109 L. Ed. 2d 693, 495 US 676 (1990)
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Rule of Law:
The inherent sovereignty of an Indian tribe does not extend to the authority to exercise criminal jurisdiction over an Indian who is not a member of that tribe.
Facts:
- Albert Duro is an enrolled member of the Torres-Martinez Band of Cahuilla Mission Indians.
- Duro resided on the Salt River Pima-Maricopa Indian Reservation from March to June 1984, working for a construction company owned by the Pima-Maricopa Tribe.
- Duro was not a member of the Salt River Pima-Maricopa Indian Community and was ineligible for membership, meaning he could not vote in tribal elections, hold tribal office, or serve on tribal juries.
- On June 15, 1984, while on the reservation, Duro allegedly shot and killed a 14-year-old boy.
- The victim was a member of the Gila River Indian Tribe, which is separate from both Duro's tribe and the Pima-Maricopa Tribe.
Procedural Posture:
- Initial federal charges for murder against Albert Duro were dismissed.
- Duro was then charged in the Pima-Maricopa Indian Community Court with the illegal firing of a weapon.
- The tribal court denied Duro's motion to dismiss the prosecution for lack of jurisdiction.
- Duro filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Arizona.
- The District Court granted the writ, holding that the tribe lacked jurisdiction over a nonmember Indian.
- The tribal officials (respondents) appealed to the U.S. Court of Appeals for the Ninth Circuit.
- A divided panel of the Ninth Circuit reversed the District Court, finding that the tribe possessed jurisdiction.
- The U.S. Supreme Court granted certiorari to resolve a circuit split on the issue.
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Issue:
Does an Indian tribe have inherent sovereign authority to exercise criminal jurisdiction over an Indian who is not a member of that tribe?
Opinions:
Majority - Justice Kennedy
No. The retained sovereignty of Indian tribes as domestic dependent nations does not include the power to impose criminal sanctions against an Indian who is not a member of the tribe. The Court reasoned that tribal sovereignty over criminal matters is centered on the tribe's power to control its own internal relations and govern its own members. Extending the logic of Oliphant v. Suquamish Indian Tribe, which denied tribal jurisdiction over non-Indians, the Court found that nonmember Indians are in a similar position. Because they have not consented to tribal governance—as evidenced by their inability to vote, hold office, or serve on juries—subjecting them to the tribe's criminal jurisdiction represents an exercise of external power inconsistent with the tribes' dependent status. Criminal jurisdiction is a significant intrusion on personal liberty, and a tribe's authority to impose it derives from the consent of its members, making membership the determinative factor.
Dissenting - Justice Brennan
Yes. An Indian tribal court has the inherent power to exercise criminal jurisdiction over a defendant who is an Indian but not a tribal member. The majority misinterprets precedent; Oliphant was based on the unique status of non-Indian citizens, not a general principle applicable to all nonmembers. For centuries, congressional enactments like the Indian Country Crimes Act have consistently exempted Indian-against-Indian crimes from federal jurisdiction, which implicitly recognizes retained tribal authority over all Indians, not just members. The majority's holding creates a dangerous jurisdictional void where nonmember Indians can commit minor crimes on reservations with impunity, as neither federal nor state authorities may have jurisdiction. The Indian Civil Rights Act of 1968 provides sufficient due process and equal protection safeguards to protect nonmember defendants from potential unfairness in tribal courts.
Analysis:
This decision significantly narrowed the scope of inherent tribal criminal jurisdiction by equating nonmember Indians with non-Indians for jurisdictional purposes. It established that tribal criminal authority is based on a consent theory linked to political membership, not on a racial classification of 'Indian' or territorial presence. The ruling created a 'jurisdictional void,' leaving many misdemeanor crimes committed by nonmember Indians on reservations without a clear prosecuting authority, which prompted Congress to legislatively overturn the decision with the 'Duro fix' to restore this tribal authority.
