Albert Duro v. Edward Reina, Chief of Police, Salt River Department of Public Safety, Salt River Pima-Maricopa Indian Community

legitimate surrepti- ex- of some sort at the of the is whether Haberkorn has a location storage pectation privacy of in the unit. tious search. Therefore we conclude that standing right Haberkorn has to assert his ownership presence Neither nor are re hearing on the admission of evi- quired expectation reasonable assert a relating dence search of Unit 39 privacy Amendment. of under the Fourth storage space. arrangement among A defend “formalized indicating joint supervision control and ants and REMANDED. REVERSED support legit place of the is sufficient to expectation privacy.” imate United NOONAN, Judge, concurring Circuit Broadhurst, 805 F.2d 851-52 States v. part dissenting part: (9th Cir.1986). “amply If indi the record except paragraph. I concur as to the last formalized, ongoing arrangement” cates a I would remand to the district court to storage

between the defendants for the standing determine has whether Haberkorn unit, storage chemicals id. enunciating. under the standards we are expectation Haberkorn had reasonable privacy in the unit. In several cases participation in an

court has found that

arrangement joint indicates control place supervision of the searched is

enough a Fourth Amendment to establish

protected privacy interest. See United Quinn, (9th F.2d 980 Cir.

1984), dismissed, L.Ed.2d 803 United (9th Pollock, 726 F.2d 1456 Cir. DURO, Petitioner-Appellee, Albert 1984); Johns, 707 F.2d United States v. Cir.1983), rev’d on other Police, REINA, Riv Salt Edward Chief grounds, 469 U.S. Safety, Department Salt er of Public Pima-Maricopa Indian Commu River In the instant the indictments al., nity, Respondents-Appellants. et charged the defendants with criminal con- spiracy as to all the substantive crimes No. 85-1718.

involving possession the manufacture and Appeals, States Court of drugs. An affidavit submitted Ninth Circuit. alleged Haberkorn that he was the co-own- storage er of the chemicals found in the Oct. 1985. Argued and Submitted payor portion unit and the of a July Decided payments respect to the rental made with 29, 1988. As Amended June unit. us no other relevant We before documents.

We are unable to determine on what

grounds the district court decided that Ha- standing. government

berkorn had no brief, however,

in its states that for the

“purposes appeal” it does not contest standing to contest

Haberkorn's Appellee

search. Brief of United States at Although the indictments and Haber- affidavit do not rise to the level of

korn’s facts,” Pollock,

“stipulated supra, documents do indicate that Johns and

these engaged joint

Haberkorn were in a venture Riverside, California. He has lived

born year of his life outside of his all but one approximately reservation. From approximately March 1984 to June 1984, Duro resided within the Salt River (Reservation). During Indian Reservation time, girlfriend in Duro lived with his girlfriend family her home. His is a mem- Pima-Maricopa Indian ber of the Salt River tribe). Community (Community or Duro PiCopa for the Construction Com- worked Community company. pany. The owns However, company require does not to reside within the Res- employees either members of the Communi- ervation or to be ty. Community federally recognized is a

The authority entity that exercises over tribal eligible Duro is not for the Reservation. Wilks, Phoenix, Ariz., for re- Richard B. Community. Appellant membership in the spondents-appellants. below, Reina, respondent is Chief Edward Phoenix, Ariz., Trebon, petition- for John Department Community’s of Police of er-appellee. Appellant the Safety. of Public Honorable Lewis, Sacaton, Ariz., Rodney B. Edward below, Manuel, Sr., respondent R. Reiman Jr., Seattle, Wash., Maloney, for amici G. Community Judge of the Indian Chief curiae. (tribal court). Court 18, 1984, complaints On June against Duro were filed both and the United States District Court court of Arizona. The tribal for the District CHOY, Before SNEED charged complaint court Duro with dis- BRUNETTI, Judges. Circuit charge of a firearm within boundaries BRUNETTI, Judge: Circuit Reservation, violates the Com- which Misdemeanors. The dis- munity’s Code of question before us is whether an charged complaint Duro with trict court may juris- to the criminal murder, abetting aiding and murder and a diction of the court of tribe of which 2, 1111, and which violates 18 U.S.C. §§ neither he nor his victim was a member. complaints pertained officials of an The district court ordered or about June same event. On discharge appellee from Indian tribe to cus- Phillip shot Fernando allegedly Duro tody and to abstain from further criminal Brown, year boy, and killed a fourteen old prosecution. conclude that the tribe We an enrolled member of him. Brown was properly asserted criminal Tribe, which resides the Gila River an appellee because he is an albeit separate on a reservation. different tribe. We Indian enrolled and remand. therefore vacatе agents arrested Duro near his Federal on June 19 and moved

home California July him to the District of Arizona. On I degree Duro for first grand jury indicted FACTS AND PROCEEDINGS BELOW The district court dismissed the murder. Duro, below, the motion petitioner prejudice indictment without Appellee Albert Duro was then of the Torrez-Mar- of the United States. is an enrolled member custody of the Salt River placed of Mission Indians. Duro was tinez band Department of Safety. Public On October tween recognizing new restrictions on trib- 19, the trial court denied Duro’s motion to ‍​​​​‌​‌‌‌​‌‌​​‌​​​​‌​​​​‌‌​​‌​‌‌​​​​‌​​​​‌‌​​‌​​‍al sovereignty hand, on the one and placing dismiss for lack of jurisdiction. jurisdictional additional liability upon In- petitioned Duro dians not members district for a writ of the tribe whose corpus question. diction is in prohibi- habeas a writ of and/or granted tion. The court requested re- In resolving questions of tribal sover- January lief on Appellants timely eignty, ordinarily we guided by those appealed judgment. from the powers historically exercised, the will Congress expressed in treaty and

II statute, and a body considerable of deci- sources, sional however, law. Such are of STANDARD OF REVIEW little aid resolving present in the controver- Our review of a district sy. court’s The exercise of tribal criminal petition decision on a for a writ of habeas tion over nonmember Indians is virtually corpus is de novo. Marquez, Chatman v. precedent. without historical This is not 1531, (9th Cir.)., 754 F.2d 1533-34 because power such did not theoretically 841, 124, 474 U.S. 106 S.Ct. 88 tribes, reside in the but rather because We review circumstances, for an reasons, for other did not abuse of discretion the district give court’s deci rise to exercise. The circumstanc- sion issue a writ prohibition. The giving es rise to the instant case have their court had district over this case present roots in displacement the many under corpus statute, the habeas 28 tribes, U.S.C. the resultant heterogeneity 2241(c)(1) (3).& Therefore the present day populations, reservation and could issue auxiliary writs aid of its the increasing prevalence sophistica- and jurisdiction “in judgment,” its sound within tion of tribal courts. Our reliance in turn by the limits Congress. set United on statute and ease law is restrained the Co., 159, v. 172-73, New York Tel 434 U.S. use Congrеss indiscriminate and the 364, 372, 98 S.Ct. courts of terms and “Indian” “non-Indi- (quoting Adams v. United States ex rel. frequently an”—“Indian” has been used to McCann, 269, 273, 63 S.Ct. member,” denote “tribal while “non-Indi- (1942)); 87 L.Ed. 268 see Mead v. Par an” has a served as for synonym “nonmem- ker, (9th Cir.1972). 464 F.2d Having ber.” acknowledged complexi-

ty and question us, of the moment before we turn to its resolution. III DISCUSSION Oliphant A. Suquamish Indian Tribe brings case This before us an issue At the question outset we face the impression: first jur- whether the criminal Oliphant whether v. Suquamish Indian isdiction of a tribal Tribe, court extends to an 435 U.S. 55 L.Ed. who is tribe, not a (1978), member of the if 2d 209 controls In this case. that he is committing accused of an offense two charged non-Indians were against another nonmember Indian on the committing on crimes a reservation. The tribe’s reservation. This issue Supreme concerns Court ruled that the tribal court one of the uncharted reaches of tribal did not have criminal over presents and troubling diction a choice be- opinion them.1 The Court’s explicitly re- decision, Joshua, Grey 1. In recent water v. and non-Indians that (8th Cir.1988), Eighth F.2d Circuit Congress con- explicitly had not terminatеd the Dev- cluded that the Devils Sioux Lake Tribal Court authority prosecute ils Lake Sioux Tribe’s did over non- Greywater acknowledges Indians. members Devils Lake Sioux Tribe. may that 18 U.S.C. 1152 seem to indicate that Eighth Congress’ acknowledged Circuit use Su- of the term was "Indian” meant to preme Oliphant Court in Suquam- regardless held that the include all Indians of tribal affil- authority ish Court Tribal acknowledging lacked sovereign exercise iation while nonmembers, never tax on the Id. at fers to non-Indians. Court However, used the term “nonmember.” Supreme subsequent dis- Court one Wheeler, In subsequent opinion describe sent and one 55 L.Ed.2d Oliphant excluding nonmember Indians (1978),Justice Stewart in dictum stated jurisdiction of the as well from the criminal Oliphant proposition stands for tribal courts. See Merrion Jicarilla that nonmembers cannot be tried 130, 171-3, Tribe, Apache courts. The term “nonmember” was used 894, 919-20, 71 L.Ed.2d 50-52 S.Ct. however, throughout opinion, the Wheeler (1982) (Stevens, dissenting). This case J. nonmember status was not in issue as authority only concerned the Indian tribe’s tribe, Navajo Wheeler was a member of the impose mining sevеrance tax on non- Navajo who was tried tribal court mining who were on the reserva- Navajo for a tribal code violation. At issue occasion, opinion majority tion. The not the of tribal courts but reason, apparent uses the term for no possible jeopardy double effect of a discussing power “nonmember” when prior tribal court conviction a federal Id., “non-Indians.” of the tribe to tax rape prosecution. The indiscriminate use change in at 903-5. This terms has throughout the of the term “nonmember” to the decision. It is clear no relevance 322-28, opinion, 98 Wheeler discussing the au- that the Court is tribe’s 1085-89, amplifies point the that S.Ct. at thority miners not to tax “non-Indian” merely dic- Justice Stewart’s statement is “nonmembers.” contrary Supreme tum. To the two other addressing dissent in the Justice Stevens’ holding opinions Oliphant’s Court describe authority tax non-Indian of the tribe to the limited to non-Indians. National See produce gas and from with- lessees who oil Tribe Farmers Union Ins. Cos. v. Crow of in the tribe’s reservation in dicta miscasts Indians, 845, 853-55, 471 U.S. holding Oliphant as that tribes “have no 2447, 2452-53, (1985)(tribal 85 L.Ed.2d 818 jurisdiction criminal over crimes committed power to exercise civil matter court

by nonmembers within the reservation.” non-Indians); Washington jurisdiction analysis power Id. at 919. In his of Tribes, 447 U.S. Confederated tax, interchang- the tribe to Justice Stevens (1980).2 65 L.Ed.2d 10 es the terms “nonmember” and “non-Indi- appears that the has not used majority rejected analysis Court an.” The his and Indi- power the terms non-Indian nonmember that the of an tribe to exclude precisely.3 holdings The of the cases imposing was the basis for nonmembers (W.D.Ark.1878) punish ("[p]etitioner power F.Cas. of tribes to offenses tribal 353 parents, white had left his domicile in law members of a tribe found that federal bom of jurisdiction county gained preemption punish domicile in the of a tribe’s to the Indian Kansas.’’); (1834) Op.Atty.Gen. 2 for infraction of tribal law would de- state of (Attorney 693 members substantially self-government. that the Choctaw from tribal General concludes tract However, ultimately Eighth no over white the Circuit found tribal courts have Negro slaves owned white that the Devils Lake Sioux Tribe’s exercise of citizens nor ovеr citizens.); Jurisdiction Indian Tribes criminal over nonmember Indians Criminal Non-Indians, (1970) (Solicitor beyond necessary protect rights to the Over 77 I.D. 113 is what is self-government Department General of the of Interior concludes essential to the tribe’s and is possess overriding with the interest of the that Indian tribes do inconsistent non-Indians). government ensuring that diction over federal its citizens protected from unwarranted intrusions inconsistency pervades opinions the 3. A similar liberty. upon personal the reasons their For e.g., Compare, this court. Hardin v. White opinion, expressed in this amended we do not Tribe, Apache F.2d 478 Mountain 119 Eighth reasoning persuasive. the find Circuit’s Cir.1985) (tribes power punish to lack inherent acts, presumably but 2. A review of several of the authorities cited in non-Indians for criminal power regard opinion point nonmember Oliphant the that its have that with to the fortifies Johnson, Indians) with, e.g., application United States v. 637 is limited to the lack of tribal court (9th Cir.1980) (inherent F.2d tribal over non-Indians not non- E.g. sovereignty power punish Kenyon, includes to "tribal of- member Indians. Ex Parte Oliphаnt depend making Applying that distinc- analysis do not cited to Oliphant. give regard We Duro’s we tion with note first that the histori weight equivocal to these casual references. cal evidence question little on the Certainly not extend the literal we will whether tribal court extends to Oliphant holding on the of them basis Indians. There are indications alone. that the executive branch and courts as sumed that may try tribal courts crimes Oli- reasoning next We turn by any committed whether or not phant holding to determine whether Implied Collins, he is a tribe member. to nonmember Indians as well as extends Limitations on the Jurisdiction traced its to non-Indians. Tribes, 54 Wash.L.Rev. 479 n. 5 authority try non-Indians to the tribe’s 11.2(c) (1978); (citing 25 C.F.R. powers government inherent retained Burland, 1199, 1200 F.2d n. 1 196, 98 over the reservation. 435 U.S. at denied, cert. (9th Cir.), rejected at 1014. The Court this ar- S.Ct. Arizona ex S.Ct. First, it identified a historical gument. Turtle, rel. Merrill v. 413 F.2d part presumption shared on the of Con- (9th Cir.1969), branch, gress, executive and the lower (1970)). One courts do not federal courts that implied commentator has that non-Indians power try have the non-Indians. Sec- have the nonmembers same status. ond, particular treaty it examined implication analy was derived from an signed by Suquamish for indications sis of statutes that allow states to assume had ceded criminal tribe criminal and civil over Indian government. Finally, it tion to country light precedent consent of the tribe occu determined pying particular country. jurisdiction of criminal would Indian 25 the exercise 1321, 1322 and dependent inconsistent with the tribe’s U.S.C. 1326. We do not be §§ agree implication.4 status. with that fenders," acknowledges presumably not Indi same. but comment that ans, Indeed, laws). changes treaty provisions for violation of criminal in Indian in the 18th internally opinions early Congress' individual inconsistent centuries intent 19th make Ford, Navajo point. on this See Babbitt Inc. v. uncertain on the issue of federal versus tribal 587, 9, Tribe, (9th jurisdiction. language changes 710 F.2d 596 n. criminal These 926, denied, Cir.1983), indicate, suggests: 466 U.S. 104 S.Ct. might cert. the comment v. De La Congress jur- 80 L.Ed.2d 180 Cardin meant to assume federal “[T]hat 363, 364, Cruz, (9th Cir.) (Oliphant 671 F.2d isdiction over offenses between nonmember jurisdiction only over non- eliminates and tribal members in the same man- Indians Indians; cases, yet, it would if extended to civil previously ner it had assumed federal altogether any jurisdiction "eliminate tribal over between non-Indians and tion over offenses denied, tribe”), persons not members of the Congress members. On the other hand 74 L.Ed.2d 277 change language may to have intended the (1982). opinions might Authors of earlier applicability treaty merely of a to reflect the used “nonmember Indian” and "non-Indian" as (empha- only signatory tribes.” Id. at 738 minimum, synonyms. they At a did not distin added). sis categories. guish carefully between the two proposes the comment At the same time opinions helpful are not in re Therefore these treaty by examining provisions, the intent of solving this in which the distinction be Congress jurisdiction over nonmem- to assume Indian and non-Indian is tween nonmember author, ber Indians is made clear. Yet later Clark, crucial. See Williams v. 742 F.2d (25 examining §§ federal statutes U.S.C. Cir.1984) (whether (9th may a tribe 555 n. ‍​​​​‌​‌‌‌​‌‌​​‌​​​​‌​​​​‌‌​​‌​‌‌​​​​‌​​​​‌‌​​‌​​‍1326) and nonmem- 1322 and states that Indian jurisdiction exercise criminal over nonmembers only implicitly equated. ber can be Indians open question), cert. is an prоblem is that it is indeed too difficult to 105 S.Ct. pulse Congress’ get finger intent in on the Congressional express as- area. Absent an this Comment, over Nonmember 4. See Jurisdiction jurisdiction conclud- sumption feel safe in we Reservations, Ariz.St.LJ. Indians on jurisdiction ing that tribal courts retain 746-48. in these situations. acknowledged Oliphant, only postulates the comment that nonmem- As for The comment to non-Indians. that it is limited non-Indians be treated the several times ber Indians and inquiry particular in the tant is whether a defend-

Perplexed by ambiguities these record, ant is a member of a tribe that has a historical we turn to the Court’s special relationship with the argument Oliphant. “By third submit- government, not whether the defendant ting overriding sovereignty of the to the happens relationship to have a with the States, Indian tribes therefore nec- United governing tribe where the reservation essarily give up power try their non-Indi- Accordingly, occurred. offense United except in a an citizens of the United States Cir.1974) Heath, 509 F.2d 16 acceptable Congress.” 435 manner we held that a Klamath Indian whose tribe overriding at 1021. This at federally had been “terminated” could not sovereignty argument was the core of the federally prosecuted for a violation of 18 opinion.5 at Court’s Id. killing U.S.C. 1111 and 1153 for an en- §§ (explaining impor- the lesser Springs rolled member of the Warm arguments). At first tance of the other Springs Tribe on the Warm Reservation. blush, theory overriding sovereignty The reason was the absence of a federal appears jurisdiction to limit the of tribal relationship between the Klamaths and the non-Indians, respect courts States as a result of the termination originally whom the tribes submitted. supervision of federal over the Klamath Tribal courts would retain Act; Tribe the Klamath Termination However, all Indians nonmember Indians. seq. U.S.C. 564 et Id. at 19. Under 18 § are now United States citizens. 8 U.S.C. upon U.S.C. 1153 is based 1401(a)(2). citizens, as well As crime committed one Indian an- exempt as non-Indians can claim to be from country. other Indian within the Indian tribes, the criminal which are suggested was not that federal sovereign entities subordinate to Unit- lacking because the Klamath was on suggests equal protec- ed This States. Tribe, Springs of the Warm reservation tion claim which we address later. It is enjoyed relationship. she no where evident, however, reasoning that the of Ol- Granted, the discussion so far has been iphant, language, dispose like its does not concerned with federal and not of this case. However, ignored tribal. it cannot be Rather, dispositive what is more the two are interwoven. Thus in Arizona statutory case is the federal criminal Turtle, supra, ex rel Merrill v. we held scheme6 and its treatment of crimes com- Navajo sovereignty precluded tribal by mitted Indians. 18 U.S.C. et § arresting Cheyenne Arizona from Indian seq. Navajo purpose on the for the Reservation statutory subjects That scheme indi extraditing him to Oklahoma. We rec- prosecution “by to federal by analyzing viduals virtue of ognized, the terms of the their status as Indians.” v. Treaty Navajos United States of 1868 between the and Antelope, right that a tribe has the the United States purposes power For to exercise over the Indian residents reservation, impor- of the federal criminal statutes the of its without distinction as to sharply 5. Commentators have criticized the reservation or reservations for which the court authority Oliphant 11.2(a) (1987) Court’s use of historical support in is established ...” 25 C.F.R. § Collins, arguments. supra, its first two added). (emphasis We find it instructive that Note, 490-99; at Indians —Jurisdiction—Tribal regulations to limit of these fail Lack Jurisdiction over Non-Indian Courts by Of- courts to offenses committed Indians of fenders, 1979 Wis.L.Rev. 540-51. The third particular the tribe for which the court is estab- attacks, argument is not vulnerable to these (The regulations deem an Indian for lished. importance. which further enhances its purposes any person of these courts "to be recog- any descent who is a member of Indian scheme, statutory regu- 6. In addition to the jurisdic- nized Indian tribe now under Federal latory by Department promulgated scheme 11.2(c) (1987). tion.” C.F.R. There is no § of Interior's Bureau of Indian Affairs establish- distinction made as to the status of nonmember Indians.) ing Courts of Indian Offenses states that those “shall have over all offenses courts by any when within the ... committed argue member of the land did not “that the statute was the Indian was a whether inapplicable him at 686. because he was a mem- tribe or not. Id. ber of a tribe other than the local tribe The structure of criminal visiting from another reservation.” here, is country, as far as it relevant at n. 1. Id. generally courts easily discerned. Tribal against In- petty by Indians handle crimes Furthermore, discussing Major by crimes Indians. dians and victimless Act, Crimes we held in United States v. However, by Indi- “major” certain crimes Johnson, (9th Cir.1980) 637 F.2d 1224 pursuant ans are dealt with except specifically for the crimes enumerat- Act, Major 18 U.S.C. 1153. to the Crimes § Act, general ed in the “the rule is that com- punishes That statute “Indians” who tribal courts have retained exclusive usually country. in Indian That mit crimes by diction over all crimes committed Indi- on some means that the crime is committed against ans other Indians in Indian coun- “and the fair inference tribe’s reservation try.” Again Id. we declined to offending belong to is that the Indian shall make a distinction between member ... that or some other tribe [the statute’s] nonmember Indians. an Indian effect is confined to the acts оf discussing The cases the federal criminal character, tribe, com- of some of a statutory clearly scheme indicate that if mitted the limits of the reservation.” within Congress had intended to divest Kagama, United States courts over non- 30 L.Ed. 228 they member Indians would have done so. added). The has never (emphasis statute it Absent such divestment is reasonable to application in its to Indians been restricted conclude that tribal courts retain “host” tribe. who are members of the over crimes committed Indians tion against non-Indi Crimes Indians regard other Indians without against Indi and crimes non-Indians ans membership. punishable under 18 U.S.C. 1152. ans are § applicable in Indian That statute makes Equal B. Protection country applicable criminal laws those jurisdiction with areas of exclusive federal court ruled that the The district exceptions.7 several of criminal tribe’s exercise equal protection denied him the of its applied has been it Duro As 18 U.S.C. 1152 Rights laws in violation of the Civil assumed that references has also been Act, The court said that just Indians 25 U.S.C. 1302.8 “Indian” meant Indian not In of the host tribe. the distinction between who were members Burland, solely upon non-Indians “is based F.2d 1199 and recognized that racial classifica (9th Cir.), 92 race.” It cert. U.S. strict scru ordinarily must withstand 137, applied 77 we tions 30 L.Ed.2d S.Ct. dis tiny. Finally, it concluded of the Confederat “[t]he the statute to a member of tribal criminal criminatory commit enforcement and Kootenai Tribes who ed Salish upheld in this case cannot be a crime on the Flathead Reservation. ted or strict the rational basis noted, supra, that Bur- under either citing Kagama, We authority Indian tribes. Santa apply of to offenses commit- limits 7. The statute does not 56, Martinez, 49, person proper- or 98 one Indian v. 436 U.S. ted Clara Pueblo 1670, 1675, (1978). ty nor to an Indian commit- of another S.Ct. 56 country has ting any the Indian who offense in provision equal protection of the Act extends punished law of the tribe or to been local non-Indian, any person, within the even a whereby treaty stipulations, the exclu- case Schultz, The Federal Due of the tribe. diction may is or over such offenses sive Rights Equal Non-Indi- Protection Process of respectively. Indian tribes secured to the Litigants Courts Santa Civil in Tribal an After 761, Martinez, 62 Denv.L.Rev. Pueblo v. Clara Rights Act is the sole source 8. The Indian Civil (1985). may it Duro invoke Therefore 773-75 equal protection Neither the claim. of Duro's despite nonmember. his status as a Rights nor the Fourteenth Amendment Bill of 1144

scrutiny 16, (9th Cir.1974). standards.” We consider in turn F.2d 19 Enrolled mem step each of the district reasoning. court’s qualify bers of tribes as Indians if there is affiliation, some other evidence of such as 1. Racial classification residence aon reservation and association Supreme with other enrolled Court has made clear members. United legislation that “federal respect X, 585, with Boy Indian 565 F.2d 594 tribes, although relating Cir.1977), to Indians denied, 841, cert. 439 U.S. such, as upon impermissible is not based 131, (1978). 99 S.Ct. 58 L.Ed.2d 139 A racial classifications.”9 person mixed blood who is enrolled 641, 645, Antelope, 1395, 430 U.S. 97 S.Ct. recognized tribe or otherwise affiliated 1398, (1977). 51 L.Ed.2d 701 The district may with it be treated as an Indian. Ex accepted court proposition respect Pero, parte (7th Cir.1938), 99 F.2d to legislation concerning recognized denied, cert. 306 U.S. tribes, political which are rather Flowers, L.Ed. 1043 R. Criminal groups. than racial See Morton v. Man Jurisdiction Allocation in Indian Coun can, 535, 553, 24, n. S.Ct. (1983). try 6 purpose For the of federal (1974). n. 41 L.Ed.2d 290 There jurisdiction, Indian status is on a “based fore the district recognized court that tribal totality circumstances, including gene may courts exercise criminal alogy, group identification, and lifestyle, though member Indians even non-Indi which no one dispositive.” factor is Clin exempt. However, ans are it viewed the ton, Criminal Jurisdiction over Indian jurisdic extension tribal court criminal Lands: A Journey Through a Jurisdic tion to nonmember Indians based as on Maze, (1976). tional 18 Ariz.L.Rev. race alone. may Tribal define jur courts their criminal

The district erroneously according isdiction similarly complex to a assumed that tribal courts extend their notion of who is an Indian. to Indians on the basis In this Duro is in a enrolled Who is race. an Indian turns numer tribe, recognized although not in the Com one, ous of which facts race is albeit munity. closely He was associated with important an one. The criminal Community through girlfriend, his turns, part, federal courts also on who member, Community See,

is an his residence Indian. with her e.g., 18 U.S.C. §§ Reservation, family on the employ 1153. Federal courts his identify PiCopa ment with the degree Compa reference to an individual’s of Indi Construction ny. justify blood and his contacts tribal or These the tribal governmental recognition court’s as an Indian. conclusion that Duro is United States v. an Indian Broncheau, (9th Cir.), jurisdiction. 597 F.2d to its criminal We 859,100 purely stress his is ‍​​​​‌​‌‌‌​‌‌​​‌​​​​‌​​​​‌‌​​‌​‌‌​​​​‌​​​​‌‌​​‌​​‍not a racial deter Indeed, L.Ed.2d Members of terminated mination. the record does not de Indians, tribes qualify do not regardless ancestry, scribe Duro’s so we do not know Heath, their race. United States degree 509 his of Indian blood. legislation, Martinez, 49, 62-63, 9. This case does not concern federal Pueblo v. but rather tribe’s exercise of its retained (1978). Congress sovereign powers. equal protec- Therefore the intended to foster tribal self-determination Rights tion standard of the Indian Civil Act 62, protect rights. well as individual at Id. applies, implicit equal protection not the re- Congress S.Ct. at If altered the constitu- quirement supra оf the Fifth See Amendment. equal protection all, tional standard at it diluted equal protec- note 8. We are satisfied that the Tribes, it. v. Salish & Howlett Kootenai Rights tion standard of the Indian Act is Civil 233, (9th Cir.1976). argument F.2d Our that rigorous no more than its Fifth Amendment the tribal court’s assertion of criminal counterpart. Rights The Indian Civil Act "selec- implicit equal tion protection is valid under the tively incorporated and in some mod- instances guarantee necessarily of the Fifth Amendment safeguards Rights ified the of the Bill of to fit implies equal protec- it is valid under that cultural, unique political, and economic guarantee Rights tion of the Indian Civil Act. governments." needs of tribal Santa Clara basis Rational from non-Indians. Neither nonmember In- dians nor non-Indians may participate in The Community wishes to extend government. tribal However, explained jurisdiction tribal criminal court’s to non above in the discussion of Oliphant, member Indians in order to better enforce Supreme Court exempt did not non-Indians prose law on the Reservation. Federal from the jurisdiction criminal of tribal cution оf crimes on long reservations has courts on the ground they are exclud- inadequate. been Jurisdiction on Indian ed from government. tribal Had that been Reservations, Hearing on S. 3092 Before case, non-Indians presumably would be the Senate Select Comm. Indian Af exempt from jurisdiction the civil of tribal fairs, Cong., (1985) 2d Sess. 27-28 courts. That is not the however. (statements Shields, Councilman, of Caleb LaPlante, Iowa Mut. Ins. v.Co. 480 U.S. Tribes, Assiniboine & Sioux Fort Peck Res 971, 976, 94 L.Ed.2d 10 ervation, Montana, Nelson, and James C. Lee, 217, 223, Williams v. 358 U.S. County Attorney, County, Glacier Mon 269, 272, (1959). 3 L.Ed.2d 251 tana); Policy American Indian Review Comm’n, Federal, State, Report on We extending conclude that (1976). Tribal Jurisdiction 37-39 Law en tribal court jurisdiction to non forcement by state officials is also unde member significant Indians who have con pendable, Policy American Indian Review tacts with a reservation does not amount to Comm’n, 39-40, supra, part because a racial classification. We further find jurisdictional uncertainties that will be policy that this reasonably is related to the discussed in the next subsection. Further legitimate goal of improving law enforce more, treating nonmember Indians resident ment on reservations. The district court’s on the differently reservation from mem decision was in error.

ber residents undermines the tribal commu Clinton,

nity. See Isolated in Own C. A Their Jurisdictional Void Country: A Federal Protec Defense of Our strengthened conclusion is tion Autonomy Self- when we happen consider what would if we Government, 33 Stan.L.Rev. 1015-16 exempt ruled that Duro from tribal court (1981) (criticizing treating members and jurisdiction. argues Duro that be differently nonmembers with regard to supposed cause neither nor he his victim state fragments taxes because it the tribal was a Community, member they community). must both be like treated non-Indians for recognized court district purpose jurisdiction. of criminal Thus jurisdiction court over nonmember Indians a state could have strengthen authority would Getches, over the over Duro.10 D. D. See Rosenfelt thought reservation. But it Wilkinson, this considera- & C. Cases and Materials on outweighed by tion was injustice (citing Federal Indian Law 388 treating nonmember differently (14 Indians McBratney, United States federal, reasoning precludes 10. Duro’s punished as well as been under tribal law. Under the tribal, jurisdiction Act, over his case. courts Federal Assimilative Crimes 18 U.S.C. § federal incorporates Indian defendants ac- enclave law local state law where committing major cused of enumerated equivalent crimes law defines no offense. against States, non-Indians. 18 U.S.C. 1153. It is Williams v. United S.Ct. However, preempts (1946). clear whether federal trib- 90 L.Ed. 962 as ex- text, plained al over these cases. See in the the courts have created an John, exception 651 n. from federal for crimes (1978). non-Indians, n. ap- Lesser committed and "it between against crimes ans, pears committed non-Indi- to be too well entrenched to be over- Clinton, as all well crimes committed non-In- ruled.” Criminal Jurisdiction over Indi- Indians, Lands; punishable dians Journey Through under 18 A a Jurisdictional Maze, U.S.C. § 1152. That section extends federal en- 524-26 Ariz.L.Rev. There- country, although clave law to Indian not to fore if courts treat Duro and his victim as non- Indians, offenses an Indian committed anoth- there be no federal criminal will already er nor to Indian who has diction over case. his uрon (1882)). Emphasis placed in the fact that Otto) 621, The flaw 26 L.Ed. 869 seldom, ever, appar- courts if exercised criminal analysis is that state tribes Duro’s ently prior not exercise their criminal non-Indians to the jurisdiction do over Notably, the recommends. tion as Duro century. Oliphant of this v. Su middle attempt no in this case shows record Tribe, 435 U.S. 196- quamish Indian At least prosecute Duro in state court. 1011, 1014-15, 55 L.Ed.2d 209 lacked held that it one state court has (1978). undoubtedly cannot be The same allegedly an Indian who jurisdiction over respect to the exercise of criminal said with reservation, a even a crime on committed Indians not members of jurisdiction over member of the though the Indian was not a Therefore, I con adjudicating tribe. Allan, 100 Ida- reservation tribe. State v. Oliphant that the ratio decidendi of cede If no P.2d ho applicable to this case. Duro’s jurisdiction of state court takes Nonetheless, hold- Oliphant exists. Its jurisdiction void. there will be a existing ing neither the residual tribal hence- that state courts will possible It is grant power by Con- sovereignty nor jurisdiction to their criminal forth extend of criminal gress authorized the exercise Indians such as involving nonmember cases by a tribe over a non-Indian authority in increasing state Duro. But open question whether either leaves own disadvan- reservations has its supports the exercise of such Clinton, tages. Power over Indi- See State Indian. I believe nei- over a nonmember Comment on Reservations: A Critical reasons, stated, succinctly My ther does. Doctrine, 26 S.D.L.Rev. Burger Court as follows: (1981) (criticizing the extension of 445-46 Wheeler, (1) v. United States country in- authority into Indian state (1978), history and consistent with constitutional sovereign- retained tribal makes clear that needlessly complex). We are fortunate govern the behavior of tribal ty exists to this dilemma. be able to avoid necessity expand exists to No members. the tribal court had We conclude that its reach. Duro. The dis- (2) grants explicitly statute No federal granting in a writ of habe- trict court erred power to exercise authorities the it its dis- corpus. Consequently abused over nonmembers. 18 by issuing prohibition a writ of cretiоn does not exclude such U.S.C. aid thereof. require it. Nor does grant it does not but VACATED. it. existing require case law Indians to subject To SNEED, Judge, Dissenting: Circuit against the discriminates substantially revised its majority has actually potentially. nonmember both appeared at 821 F.2d opinion since it first justifiable. is not This discrimination Cir.1987). is, therefore, 1358-64 posi- address each of these I now shall revised, par- my appropriate that dissent greater depth. tions in the inter- ticularly light of the fact that provided vening to me deliberations insights strengthened that have

additional I. my resolve to dissent. RETAINED TRIBAL SOVEREIGNTY dissent, my original I stated “Oli- In scope of To understand the govern this case.” Id. at phant should Wheeler, helpful supra, it is true, now I am 1364. That remains but Oliphant Suquam- both point out that ready it need not. more to concede Tribe, orig- supra, and ish Indian Wheeler holding was the underpinning of its circuit and that each consti- inated relationship between the history of the prior deci- of this circuit’s generally tuted a reversal and Indian tribes United States extended Oliphant, In this circuit Suquamish particular. sion. and the Tribe nоn-Indians, part sovereignty criminal tribal to of which the Indians any by implicitly by while in it made conviction lost depend Wheeler virtue of their crime over which it ent status. tribal court The areas in which such prosecution by implicit had a bar to divestiture of sovereignty has greater United States of the offense of been held to have occurred are those tribally prosecuted involving lesser includ- which the relations between an Indian part. The circuit ed offense was a tribe and nonmembers the tribe. Thus, undoubtedly by was influenced Wheeler longer freely tribes can no expansion authority recog- of tribal alienate to they non-Indians the land oc by Oliphant. nized To reach its result in cupy. Oneida Indian Nation v. County Wheeler, that the this court reasoned Unit- Oneida, 661, 414 U.S. 667-668 [94 Navajo ed States and the Tribe should not 772, 777-778]; S.Ct. Johnson v. M'In sovereigns be treated ‍​​​​‌​‌‌‌​‌‌​​‌​​​​‌​​​​‌‌​​‌​‌‌​​​​‌​​​​‌‌​​‌​​‍as dual for double tosh, 543, 8 Wheat. L.Ed. [5 681]. jeopardy purposes. They cannot enter into direct commercial governmental or relations foreign with proposition against It was this which nations. Georgia, Worcester v. 6 Pet. Supreme opinion much of the Court’s 483]; 559 L.Ed. Cherokee Nation [8 must remem- Wheeler is directed. Pet., 17-18; Georgia, v. at Fletcher v. that the Court no doubt considered bered Peck, 6 Cranch L.Ed. [3 162] contemporaneously Oliphant Wheeler (Johnson, J., And, concurring). as we they argued days because were within two held, recently they try cannot non days and decided within sixteen of one an- members in Oliphant tribal courts. Having by reject- Oliphant other. decided Tribe, ante, Suquamish Indian ing expansion authority [435 of tribal p. p. S.Ct. non-Indians, U.S.] [98 1011]. by courts over crimes it would surprising not have been to have found the (emphasis 435 U.S. at 98 S.Ct. at 1087 using Court in “non-Indians” as Wheeler added).

the limit of the reach “retained sov- sum, power punish In offenses ereignty” upon which it relied Wheeler. against by law committed Tribe by referring past It could have done so members, part which was of the Nava- practices many which assert drew no jos’ primeval sovereignty, has never been distinctions between members and non- them, away explicitly taken from either punishment members insofar as for crimes implicitly, or and is attributable no on the reservation were concerned. way any delegation to them of federal authority. Na- It follows that when the so, Throughout

It did not do however. vajo power, Tribe exercises this it does opinion upon the focus is the tribe’s part sovereignty and so as of its retained sovereignty respect retained to its as an arm of Federal Govern- examples Two of this members. focus are ment. as follows:

Moreover, sovereign power (emphasis of a Id. at 98 S.Ct. at 1088 add- ed) prosecute (footnotes omitted). appear in tribe to its members for tribal Others clearly margin.1 offenses does not fall within that 2; 376, 380, undisputed power Mayes, It is that Indian tribes have 1397 n. Talton v. 163 U.S. 196; to enforce their criminal laws tribe parte Dog, 41 L.Ed. Ex Crow Although physically 556, 571-572, 396, 405-406, members. within the terri- tory of the United States and to ultimate (1976 L.Ed. 1030 see 18 U.S.C. control, they sep- nonetheless remain "a ed.), infra, n. 21. power people regulating arate with the their (emphasis 435 U.S. at 98 S.Ct. at 1085 internal and social relations.” United States v. added) (footnote omitted). 381-382, Kagama, supra, 118 U.S. at 6 S.Ct. at political com- The Indian tribes are “distinct 1112-1113; Georgia, Cherokee Nation v. 5 Pet. laws, munities” with their own mores and right 80 L.Ed. Their internal self- 557; Pet., Georgia, Worcester v. The Kan- government right prescribe includes the laws Indians, 737, 756, which can be sas 5 Wall. applicable to tribe members and to enforce proceedings in enforced formal criminal those laws criminal sanctions. United States less formal means. tribal courts well Antelope, 643 n. point to make the that jority, apparently appears to me to drawn

The lesson to be “Indi- focus on criminal federal statutes sovereignty ex- clear. tribal be Retained member” qualifier “tribal without ans” only. members What respect ists with The full sentence member.” nonmembers, not, or “non-tribal Indian or powers over is: law source federal their that exist have grant our of question presented court Congress, a The it an act of federal whether, the circum- of a under decision, certiorari administrative decree or an criminal stat- this stances of federal the decision agency.

federal While of Due Process Clause au- utes violate the tribes with clothe some majority will indi- by subjecting Fifth Amendment to its thority subject nonmember by virtue prosecution federal viduals to that its it is jurisdiction, clear status as of their Indians. but rath- jurisdiction, is not retained source upshot is that The the court’s mandate. er case” were The “circumstances this slightly majority wishes to enhance tribe mur- of the Coeur d’Alene members I not. powers while do tribal d’Alene a non-Indian the Coeur dered under sought to be tried reservation pursuant II. than federal law Idaho law rather Act, 18 U.S.C. Major Crimes to the § TO STATUTES GRANT DO FEDERAL rejected the defendants’ consti- The Court CRIMI- POWER TO IMPOSE TRIBES necessary argument. It was not tutional ON NAL PUNISHMENT NONMEM- any whether distinction between to address BER INDIANS? d’Alene tribe and of the Coeur members space to majority devotes substantial each The existed. have said To nonmembers given used, statutes have “includ- arguing that federal word “Indians” was time the nonmembers,” subject nonmem- power to tribal courts the members and ing both jurisdiction. See simply its criminal case ber Indians to The have been absurd. would pp. 12-16 asserts before us. relevant to issue draft]. is not [Brunetti that such cаses have assumed certain recognized the mar- majority itself structure of that “the diction exists and significance of United States ginal country,” p. in Indian (9th Cir.1974), to the Heath, 509 F.2d true. 14[B.d.], suggests that this is also go further and us. I issue before would whatsoever. it has no assert that relevance case I each cited shall address in Heath were before portion of sentence issues Only a a majority. an could indict the United States Antelope, whether appearing in the Ma- tribe under of a terminated 51 Indian 1153,2and, Act, if 18 U.S.C. jor ma- Crimes (1977), quoted was part relevant as 2. 18 U.S.C. 1153 reads They significant interest in maintain- a among members follows: ing orderly relations their preserving and tradi- tribal customs and in tions, person Any Indian who commits in law apart the federal interest from person property or other of another Indian or Tribal laws offenses, the reservation. namely, and order on following mur- any of manslaughter, kidnaping, by tribal procedures are often influenced der, maiming, rape, greatly own. our custom and can differ from involuntary sodomy, moles- sexual felonious Dog, minor, at parte knowledge [3 Ex Crow See aof carnal tation female, 405], wife, has not attained not his who Thus, important mecha- years, courts are intent to age with tribal of sixteen assault incest, significant inter- rape, tribal with intent protecting for nisms assault commit murder, dangerous pre-emption tribe’s ests. Federal assault commit bodily resulting in serious punish weapon, members for assault tion to infractions arson, felony substantially burglary, robbery, and a from injury, law detract would pre- just title within the Indi- 661 of self-government, section under country, law to the same would shall be emption state criminal committing persons penalties as all upon important other state interests. and any trench exclusive 331-32, within the (emphasis the above offenses S.Ct. at 1090-91 Id. at omitted). States. added) (footnotes of the United not, whether the attempt to do so cifully was saves both the reader’s eyes and prejudicial error when the crime charged time. murder, in 18 defined U.S.C. § The majority’s use of State Arizona and country” and, committed “Indian ex rel. Turtle, Merrill v. 413 F.2d 683 thus, subject to jurisdiction federal under Cir.1969), the Act, Federal Enclaves 18 U.S.C. (1970), is a bit 1152.3 This court held that § the defend- closer to the mark at which it is shooting. ant, an Indian tribe, as of a terminated Unfortunately, a miss, miss is a however. must be treated any as other non-Indian court, This holding that the Navajo Tribe result, citizen of the state. As a 18 U.S.C. need not accede to Arizona’s effort to ex provide 1153 could not a basis for § tradite a Cheyenne Indian resident on jurisdiction. their applies, held, It this court reservation to the State Oklahoma, only em when the “Indian who commits [cer- phasized the tain retained against person sovereignty the of the property or crimes] Tribe. pointed We another Indian or person,” Treaty other to the § is an Supreme Indian as to the whom the United Court’s decision Williams “special has a Lee, responsibility.” Heath, 3 L.Ed.2d F.2d person, at 19. A happens who to be (1959), the codification of the Navajo Indian was a once member of a now Tribe’s responsibilities extradition in its tribe, indicted, terminated could have been Code, Tribal approval and the of that Code as any could have been person, other under by the Commissioner of Indian Affairs. 18 U.S.C. 1152. The court concluded § None of those required sources of law the that under these circumstances the indict- Tribe to accede to request. Arizona’s In ment under 18 U.S.C. 1153was preju- not § deed, the Tribal Code expressly precluded dicial error. any such accession. The issue of jurisdiction tribal court over case, therefore, The is consistent with a nonmember Indian was irrelevant to the the existence of substantial retained sover- question that Heath raised. Had the eignty and for the purposes of the case court Heath believed that the tribal court treated members and nonmembers the jurisdiction had criminal over a nonmember same. similarity This of treatment was it would have affected neither reasoning its rooted in Treaty the 1868 spoke nor issue, its result. The crucial as by seen “bad men among Indians,” the who com- Heath, was whether the United States had wrongs mitted against anyone “subject to “special responsibility” regard to the authority States,” of the United defendant, the not whether the defendant group includes, that undoubtedly from time was a member of the victim’s tribe. The time, to whites as well as nonmember Indi- majority says it did occur not to the Heath goes ans. But it no simply further. It court suggest “that federal does not the address of the lacking is because the Klamath de- [the Navajo Tribe to nonmembers to fendant the reservation of Indian] prosecution. repeats If Springs Tribe, the Warm one “trib- where he enjoyed al sovereignty” again, no over and relationship.” over the p. draft Of [B 3] course, hypnotic power phrase it did not. of the may It was irrelevant. lead one To overlook an issue that could that such given conclude in a been controlling significant; is to refrain from situation exists. Reasoning, self-hyp- addressing one that is nosis, irrelevant law, mer- is way however. Except expressly provided by otherwise property or any of another nor to law, general laws of the United States committing any Indian in the offense Indian punishment any offenses committed in country punished by who has bеen the local place within the sole and exclusive tribe, where, law of any or to case States, except of the United the District of Co- treaty stipulations, the exclusive lumbia, shall country. extend to the Indian may offenses is such or be secured to the This section shall not extend to respectively. offenses Indian tribes committed one person 11 U.S.C. § majority emerges position of the suggest Enough has been said form when the focus most forceful nor 18 U.S.C. U.S.C. neither 18 § upon exceptions to 18 U.S.C. fixed compel which the the conclusion (1) “offenses committed 1152. These latter, Major majority reached. person proper- or against the by one Indian Act, “any draws into federal Crimes Indian,” (2) “any com- ty of another within crimes Indian” commits certain who country in the Indian mitting any offense Membership within country.” “Indian by the local law of punished has who been which the country in occupying tribe tribe,” where offense says nothing, is irrelevant.

crime occurs may be jurisdiction “is or treaty exclusive jurisdiction of a tribal repeat, the I about respectively.” Indian tribes sеcured the criminally a nonmember prosecute court to by taking first would be affected Only the the tribe over which who a crime commits rejecting posi- the at word and Wheeler its jurisdiction. has essence, major- majority. In the tion of the Act, explicit 18 Enclaves U.S.C. there is no ity argues The that because Federal relieving the nonmember Indi- 1152, support provision for unequivocally not also does § ex- jurisdiction in the first an from tribal purpose is to majority. principal Its the must be to the tribe’s ception, he general the country” extend “Indian by this jurisdiction. buttresses The reach of laws of the United States. out, indicated, already that 18 pointing as clearly country” “Indian those laws within with- applicable generally is U.S.C. 1152 § offender is an by whether the is unaffected was a regard whether the offender out Mull v. United or a non-Indian. ‍​​​​‌​‌‌‌​‌‌​​‌​​​​‌​​​​‌‌​​‌​‌‌​​​​‌​​​​‌‌​​‌​​‍See Indian reservation Tribe on whose member the 571, (9th Cir.1968), States, 402 F.2d 573 Thus, tribal offense was committed. the 1107, 917, denied, 21 89 S.Ct. 393 U.S. cert. irrel- membership, argues, also be it should face, (1969). 18 On U.S.C. its exception. the applying evant appear not to draw 1152 would also § not follow. To dis- The does conclusion a victim who distinction between membership construing the broad regard However, it has been is not. and one who protects Indians of 18 U.S.C. reach § does not that the statute long established by state possible discrimination from against by a offense non-Indian embrace an courts; construing the ex- disregard it committed in Indi even when a non-Indian only to ception to broad reach serves its McBratney, country. v. an United States by possibility of discrimination enhance 869, (1882); Otto) (14 26 L.Ed. 104 U.S. against nonmember Indi- the tribal Martin, 326 Ray rel. v. see New York ex would ar- Only incurable an. romantic 307, 90 L.Ed. 261 66 S.Ct. U.S. by state courts discrimination gue States, 402 F.2d Mull v. United more reason Finally, there is no can exist. language of the statute to treat the literal against a by an non- An offense in the encompassing than as all there hand, Indian, is within the other on against the offense case of the non-Indian Burland, 869; States McBratney, statute. See United 104 U.S. non-Indian. See Cir.), Martin, 326 U.S. Ray 441 F.2d rel. New York ex 66 S.Ct. holds, true, (1971). it is Burland And as of non- acknowledge that the I exclusion offender need not have the Indian the jurisdiction from member Indians the reservation his crime within committed impose greater will somewhat tribal courts he is a member. tribe of which limits of the At- responsibilities on certain United Kagama, not direct- torneys.4 Nonmember offenses Cf. Indian, L.Ed. described ed at another Act, necessary is that it (1885). Major All that is U.S.C. § Crimes by officials. prosecuted these country.” must be in “Indian committed have been dissent) if, reasoning the exclu- fall within prosecutors possibly on state has 4. And Op. Off. some, See 3 of state courts. by sive by crimes suggested "victimless" been (and Legal Counsel nonmember non-Indians category things majority This embraces such subjected the nonmember Indian disorderly drunk and conduct. heading equal under the protection. majority in original opinion and revised majority suggests also that state equal protection addresses the prosecutors may and state courts become issue and involved law enforcement. This concern concludes that there is a rational basis for appears premised to be on assumption subjecting the nonmеmber to tribal that an offense a nonmember Indian that, event, diction and in any in this case against another which is not a ma- being Duro is not discriminated crime, jor would not covered be basis race. Thus, my prevail. C. 1152 were view to reflection, I On have concluded that it is majority suggests state law enforce- my position not essential to to fit the facts required ment would gap. to fill the of this analytics case to the equal suggest I majority has misread 18 protection Rather, doctrines. I have em- U.S.C. 1152. To exclude In- ployed discriminatory possibilities Indian-against-Indian excep- dians from the suggests case my interpretation to inform merely places tion the the applicable of the statutes and cases. non-Indian, These position same as a or an Indian whom, Heath, possibilities may, for govern- not, the federal but need rise to the ment “special responsibility.” has no Both equal protection level of violations. Their subject to “sole and exclusive however, suggests, existence that wise con- tion of the United States.” There is no struction applicable law should re- why reason a nonmember should be treated duce, eliminate, if not their existence. differently. To the extent the offense each presents, heart of the issue this ease proscribed law, commits is not by federal already stated, as this dissent has is that Act, the Assimilative Crimes 18 U.S.C. majority puts the offending nonmem- import applicable will state law to § from, in position ber Indian different applied by be federal authorities and than, advantageous courts. less that of other class of offender. The member Indian of- majority put The fear of the can be own,” “among presum- fender is his which way. it, they As see an offense which is ably is frequently to his benefit. The non- major by not a one against an Indian an Indian is excluded from federal protected by Oliphant, Indian is supra, when lacking is because possibly by from harsh treatment a tribal the offender suggest is a nonmember. I by against court animated a bias all non-In- that under those circumstances the offense longer enjoying dians. And the Indian no “escapes” exception the first general to the “special relationship” rule of 18 U.S.C. 1152 but does not “es- § government enjoys protection the same cape” the broad reach of 18 U.S.C. 1152. Only does the non-Indian. the nonmember is, That the offense remains an offense enjoying “special still relation- an Indian within country and thus that, ship” subject must to a tribunal general to the laws of the United face, suggests possibility preju- States, but, here, for the reason stated against dice him. should not be considered as one committed one Indian another within the beyond pale proper judi- It is not meaning of exception the first to 18 U.S.C. employ cial interpretation behavior to 1152. Put simply, more the nonmember the law that possibility. eliminates this In Indian should be treated as a non-Indian. analysis, majority sug- final has gested only two rather weak reasons for

III. so, viz., doing to enhance tribal sover- DISCRIMINATION AGAINST THE eignty burdening and to avoid Attor- NONMEMBER INDIAN neys and their staffs. Inasmuch as the my original dissent, In contribution to these ends made lumped I all the discriminatory possibilities majority’s approach only marginal to which the

best, price demanded I would hold that high. is too

for these modest achievements sovereign- meaningful no

Tribes would lose

ty my analysis under nor would U.S. Attor-

neys become overburdened. respectfully

I dissent. TRIBE, CHEYENNE

NORTHERN

Plaintiff-Appellant, HODEL, Secretary of the In

Donald P.

terior, al., Defendants-Appellees, et Co.; Resources, Energy Wesco

Western Inc.,

Inc.; Energy, and Thermal

Defendants-Intervenors-Appellees.

No. 86-4389. Appeals,

United States Court

Ninth Circuit. Aug.

Argued and Submitted 1987.

Decided March July

As Amended

Case Details

Case Name: Albert Duro v. Edward Reina, Chief of Police, Salt River Department of Public Safety, Salt River Pima-Maricopa Indian Community

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 29, 1988

Citation: 851 F.2d 1136

Docket Number: 85-1718

Court Abbreviation: 9th Cir.