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

SNEED, Circuit Judge,

Dissenting:

The majority has substantially revised its opinion since it first appeared at 821 F.2d 1358 -64 (9th Cir.1987). It is, therefore, appropriate that my dissent be revised, particularly in light of the fact that the intervening deliberations have provided to me additional insights that have strengthened my resolve to dissent.

In my original dissent, I stated “Oli-phant should govern this case.” Id. at 1364 . That remains true, but now I am more ready to concede that it need not. The underpinning of its holding was the history of the relationship between the United States and Indian tribes generally and the Suquamish Tribe in particular. Emphasis was placed upon the fact that the tribes seldom, if ever, exercised criminal jurisdiction over non-Indians prior to the middle of this century. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196-97 , 98 S.Ct. 1011, 1014-15 , 55 L.Ed.2d 209 (1978). The same undoubtedly cannot be said with respect to the exercise of criminal jurisdiction over Indians not members of the adjudicating tribe. Therefore, I concede that the ratio decidendi of Oliphant is not applicable to this case.

Nonetheless, Oliphant exists. Its holding that neither the existing residual tribal sovereignty nor a grant of power by Congress authorized the exercise of criminal jurisdiction by a tribe over a non-Indian leaves open the question whether either supports the exercise of such jurisdiction over a nonmember Indian. I believe neither does. My reasons, succinctly stated, are as follows:

(1) United States v. Wheeler, 435 U.S. 313 , 98 S.Ct. 1079 , 55 L.Ed.2d 303 (1978), makes clear that retained tribal sovereignty exists to govern the behavior of tribal members. No necessity exists to expand its reach.

(2) No federal statute explicitly grants to tribal authorities the power to exercise criminal jurisdiction over nonmembers. 18 U.S.C. § 1152 does not exclude such a grant but it does not require it. Nor does existing case law require it.

(3) To subject nonmember Indians to tribal jurisdiction discriminates against the nonmember both actually and potentially. This discrimination is not justifiable.

I now shall address each of these positions in greater depth.

I.

RETAINED TRIBAL SOVEREIGNTY

To understand the scope of United States v. Wheeler, supra, it is helpful to point out that both Oliphant v. Suquamish Indian Tribe, supra, and Wheeler originated in this circuit and that each constituted a reversal of this circuit’s prior decision. In Oliphant , this circuit extended *1147 criminal tribal jurisdiction to non-Indians, while in Wheeler it made any conviction by a tribal court of any crime over which it had jurisdiction a bar to prosecution by the United States of the greater offense of which the tribally prosecuted lesser included offense was a part. The circuit court in Wheeler undoubtedly was influenced by the expansion of tribal authority recognized by Oliphant . To reach its result in Wheeler , this court reasoned that the United States and the Navajo Tribe should not be treated as dual sovereigns for double jeopardy purposes.

It was this proposition against which much of the Supreme Court’s opinion in Wheeler is directed. It must be remembered that the Court no doubt considered Wheeler and Oliphant contemporaneously because they were argued within two days and decided within sixteen days of one another. Having decided Oliphant by rejecting the expansion of the authority of tribal courts over crimes by non-Indians, it would not have been surprising to have found the Court in Wheeler using “non-Indians” as the limit of the reach of the “retained sovereignty” upon which it relied in Wheeler . It could have done so by referring to past tribal practices which many assert drew no distinctions between members and nonmembers insofar as punishment for crimes on the reservation were concerned.

It did not do so, however. Throughout the opinion the focus is upon the tribe’s retained sovereignty with respect to its members. Two examples of this focus are as follows:

Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly 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. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-668 [ 94 S.Ct. 772, 777-778 ]; Johnson v. M'Intosh, 8 Wheat. 543, 574 [ 5 L.Ed. 681 ]. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559 [ 8 L.Ed. 483 ]; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 [ 3 L.Ed. 162 ] (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, ante, [435 U.S.] p. 191 [98 S.Ct. p. 1011].

435 U.S. at 326, 98 S.Ct. at 1087 (emphasis added).

In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government.

Id. at 328, 98 S.Ct. at 1088 (emphasis added) (footnotes omitted). Others appear in the margin. 1

*1148 The lesson to be drawn appears to me to be clear. Retained tribal sovereignty exists with respect to members only. What powers over nonmembers, Indian or not, that exist have their source in federal law be it an act of Congress, a federal court decision, or an administrative decree of a federal agency. While the decision of the majority will clothe some tribes with authority to subject nonmember Indians to its criminal jurisdiction, it is clear that its source is not retained jurisdiction, but rather the court’s mandate. The upshot is that the majority wishes to enhance slightly tribal powers while I do not.

II.

DO FEDERAL STATUTES GRANT TO TRIBES POWER TO IMPOSE CRIMINAL PUNISHMENT ON NONMEMBER INDIANS?

The majority devotes substantial space to arguing that federal statutes have given tribal courts the power to subject nonmember Indians to its criminal jurisdiction. See pp. 12-16 [Brunetti draft]. It asserts that certain cases have assumed that such jurisdiction exists and that “the structure of criminal jurisdiction in Indian country,” p. 14[B.d.], also suggests that this is true.

I shall address each case cited by the majority. Only a portion of a sentence appearing in United States v. Antelope, 430 U.S. 641, 642 , 97 S.Ct. 1395, 1396 , 51 L.Ed.2d 701 (1977), was quoted by the majority, apparently to make the point that federal criminal statutes focus on “Indians” without the qualifier “tribal member” or “non-tribal member.” The full sentence is:

The question presented by our grant of certiorari is whether, under the circumstances of this case, federal criminal statutes violate the Due Process Clause of the Fifth Amendment by subjecting individuals to federal prosecution by virtue of their status as Indians.

The “circumstances of this case” were that members of the Coeur d’Alene tribe murdered a non-Indian in the Coeur d’Alene reservation and sought to be tried under Idaho law rather than federal law pursuant to the Major Crimes Act, 18 U.S.C. § 1153 . The Court rejected the defendants’ constitutional argument. It was not necessary to address whether any distinction between members of the Coeur d’Alene tribe and nonmembers existed. To have said each time the word “Indians” was used, “including both members and nonmembers,” would have been absurd. The case simply is not relevant to the issue before us.

The majority itself recognized the marginal significance of United States v. Heath, 509 F.2d 16 (9th Cir.1974), to the issue before us. I would go further and assert that it has no relevance whatsoever. The issues before the court in Heath were whether the United States could indict an Indian of a terminated tribe under the Major Crimes Act, 18 U.S.C. § 1153 , 2 and, if *1149 not, whether the attempt to do so was prejudicial error when the crime charged was murder, as defined in 18 U.S.C. § 1111 , and committed in “Indian country” and, thus, subject to federal jurisdiction under the Federal Enclaves Act, 18 U.S.C. § 1152 . 3 This court held that the defendant, as an Indian of a terminated tribe, must be treated as any other non-Indian citizen of the state. As a result, 18 U.S.C. § 1153 could not provide a basis for federal jurisdiction. It applies, this court held, only when the “Indian who commits [certain crimes] against the person or property of another Indian or other person,” § 1153, is an Indian as to whom the United States has a “special responsibility.” Heath, 509 F.2d at 19 . A person, who happens to be an Indian and was once a member of a now terminated tribe, could have been indicted, as could have been any other person, under 18 U.S.C. § 1152 . The court concluded that under these circumstances the indictment under 18 U.S.C. § 1153 was not prejudicial error.

The issue of tribal court jurisdiction over a nonmember Indian was irrelevant to the question that Heath raised. Had the Heath court believed that the tribal court had criminal jurisdiction over a nonmember it would have affected neither its reasoning nor its result. The crucial issue, as seen by Heath , was whether the United States had a “special responsibility” with regard to the defendant, not whether the defendant was a member of the victim’s tribe. The majority says it did not occur to the Heath court to suggest “that federal jurisdiction is lacking because the Klamath [the defendant Indian] was on the reservation of the Warm Springs Tribe, where he enjoyed no tribal relationship.” [B draft p. 3] Of course, it did not. It was irrelevant. To overlook an issue that could have been controlling is significant; to refrain from addressing one that is irrelevant only mercifully saves both the reader’s eyes and time.

The majority’s use of State of Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir.1969), cert. denied, 396 U.S. 1003 , 90 S.Ct. 551 , 24 L.Ed.2d 494 (1970), is a bit closer to the mark at which it is shooting. Unfortunately, a miss is a miss, however. This court, in holding that the Navajo Tribe need not accede to Arizona’s effort to extradite a Cheyenne Indian resident on their reservation to the State of Oklahoma, emphasized the retained sovereignty of the Tribe. We pointed to the Treaty of 1868, the Supreme Court’s decision in Williams v. Lee, 358 U.S. 217 , 79 S.Ct. 269 , 3 L.Ed.2d 251 (1959), the codification of the Navajo Tribe’s extradition responsibilities in its Tribal Code, and the approval of that Code by the Commissioner of Indian Affairs. None of those sources of law required the Tribe to accede to Arizona’s request. Indeed, the Tribal Code expressly precluded any such accession.

The case, therefore, is consistent with the existence of substantial retained sovereignty and for the purposes of the case treated members and nonmembers the same. This similarity of treatment was rooted in the 1868 Treaty that spoke of “bad men among the Indians,” who committed wrongs against anyone “subject to the authority of the United States,” a group that undoubtedly includes, from time to time, whites as well as nonmember Indians. But it goes no further. It simply does not address the jurisdiction of the Navajo Tribe to subject nonmembers to criminal prosecution. If one repeats “tribal sovereignty” over and over again, the hypnotic power of the phrase may lead one to conclude that such jurisdiction in a given situation exists. Reasoning, not self-hypnosis, is the way of the law, however.

*1150 Enough has been said to suggest that neither 18 U.S.C. § 1152 nor 18 U.S.C. § 1153 compel the conclusion which the majority reached. The latter, the Major Crimes Act, draws into federal court “any Indian” who commits certain crimes within “Indian country.” Membership within the tribe occupying the country in which the crime occurs is irrelevant. It says nothing, I repeat, about the jurisdiction of a tribal court to prosecute criminally a nonmember who commits a crime over which the tribe has jurisdiction.

The Federal Enclaves Act, 18 U.S.C. § 1152 , also does not unequivocally support the majority. Its principal purpose is to extend to “Indian country” the general laws of the United States. The reach of those laws within “Indian country” clearly is unaffected by whether the offender is an Indian or a non-Indian. See Mull v. United States, 402 F.2d 571, 573 (9th Cir.1968), cert. denied, 393 U.S. 1107 , 89 S.Ct. 917 , 21 L.Ed.2d 804 (1969). On its face, 18 U.S.C. § 1152 also would appear not to draw a distinction between a victim who is Indian and one who is not. However, it has been long established that the statute does not embrace an offense by a non-Indian against a non-Indian even when committed in Indian country. United States v. McBratney, 104 U.S. (14 Otto) 869, 26 L.Ed. 869 (1882); see New York ex rel. Ray v. Martin, 326 U.S. 496, 500 , 66 S.Ct. 307 , 90 L.Ed. 261 (1946); Mull v. United States, 402 F.2d at 573 .

An offense by an Indian against a non-Indian, on the other hand, is within the statute. See United States v. Burland, 441 F.2d 1199, 1203 (9th Cir.), cert. denied, 404 U.S. 842 , 92 S.Ct. 137 , 30 L.Ed.2d 77 (1971). And it is true, as Burland holds, that the Indian offender need not have committed his crime within the reservation limits of the tribe of which he is a member. Cf. United States v. Kagama, 118 U.S. 375, 382 , 6 S.Ct. 1109, 1113 , 30 L.Ed. 228, 231 (1885). All that is necessary is that it have been committed in “Indian country.”

The position of the majority emerges in its most forceful form when the focus is fixed upon the exceptions to 18 U.S.C. § 1152 . These are (1) “offenses committed by one Indian against the person or property of another Indian,” (2) “any Indian committing any offense in the Indian country who has been punished by the local law of the tribe,” and (3) any offense where by treaty exclusive jurisdiction “is or may be secured to the Indian tribes respectively.” Only the first would be affected by taking Wheeler at its word and rejecting the position of the majority. In essence, the majority argues that because there is no explicit provision for relieving the nonmember Indian from tribal jurisdiction in the first exception, he must be subject to the tribe’s criminal jurisdiction. It buttresses this by pointing out, as already indicated, that 18 U.S.C. § 1152 is applicable generally without regard to whether the offender was a member of the Tribe on whose reservation the offense was committed. Thus, tribal membership, it argues, also should be irrelevant in applying the exception.

The conclusion does not follow. To disregard membership in construing the broad reach of 18 U.S.C. § 1152 protects Indians from possible discrimination by state courts; to disregard it construing the exception to its broad reach serves only to enhance the possibility of discrimination by the tribal court against a nonmember Indian. Only an incurable romantic would argue that only discrimination by state courts can exist. Finally, there is no more reason to treat the literal language of the statute as all encompassing than there was in the case of the non-Indian offense against the non-Indian. See McBratney, 104 U.S. 869 ; New York ex rel. Ray v. Martin, 326 U.S. 496 , 66 S.Ct. 307 .

I acknowledge that the exclusion of nonmember Indians from the jurisdiction of tribal courts will impose somewhat greater responsibilities on certain United States Attorneys. 4 Nonmember offenses not directed at another Indian, and not described in the Major Crimes Act, 11 U.S.C. § 1153 , must be prosecuted by these officials. *1151 This category embraces such things as drunk and disorderly conduct.

The majority also suggests that state prosecutors and state courts may become involved in law enforcement. This concern appears to be premised on the assumption that an offense by a nonmember Indian against another Indian, which is not a major crime, would not be covered by 18 U.S. C. § 1152 were my view to prevail. Thus, the majority suggests state law enforcement would be required to fill the gap.

I suggest the majority has misread 18 U.S.C. § 1152 . To exclude nonmember Indians from the Indian-against-Indian exception merely places the nonmember in the same position as a non-Indian, or an Indian for whom, as in Heath , the federal government has no “special responsibility.” Both are subject to “sole and exclusive jurisdiction of the United States.” There is no reason why a nonmember should be treated differently. To the extent the offense each commits is not proscribed by federal law, the Assimilative Crimes Act, 18 U.S.C. § 13 , will import the applicable state law to be applied by federal authorities and courts.

The fear of the majority can be put this way. As they see it, an offense which is not a major one by an Indian against an Indian is excluded from federal jurisdiction when tribal jurisdiction is lacking because the offender is a nonmember. I suggest that under those circumstances the offense “escapes” the first exception to the general rule of 18 U.S.C. § 1152 but does not “escape” the broad reach of 18 U.S.C. § 1152 . That is, the offense remains an offense by an Indian within Indian country and thus subject to the general laws of the United States, but, for the reason stated here, should not be considered as one committed by one Indian against another within the meaning of the first exception to 18 U.S.C. § 1152 . Put more simply, the nonmember Indian should be treated as a non-Indian.

III.

DISCRIMINATION AGAINST THE NONMEMBER INDIAN

In my original dissent, I lumped all the discriminatory possibilities to which the majority subjected the nonmember Indian under the heading of equal protection. The majority in its original and revised opinion addresses the equal protection issue and concludes that there is a rational basis for subjecting the nonmember to tribal jurisdiction and that, in any event, in this case Duro is not being discriminated against on the basis of race.

On reflection, I have concluded that it is not essential to my position to fit the facts of this case to the analytics of the equal protection doctrines. Rather, I have employed the discriminatory possibilities this case suggests to inform my interpretation of the applicable statutes and cases. These possibilities may, but need not, rise to the level of equal protection violations. Their existence suggests, however, that wise construction of the applicable law should reduce, if not eliminate, their existence.

The heart of the issue this ease presents, as this dissent already has stated, is that the majority puts the offending nonmember Indian in a position different from, and less advantageous than, that of any other class of offender. The member Indian offender is “among his own,” which presumably is frequently to his benefit. The non-Indian is protected by Oliphant, supra, from possibly harsh treatment by a tribal court animated by a bias against all non-Indians. And the Indian no longer enjoying the “special relationship” with the federal government enjoys the same protection as does the non-Indian. Only the nonmember Indian still enjoying that “special relationship” must be subject to a tribunal that, on its face, suggests the possibility of prejudice against him.

It is not beyond the pale of proper judicial behavior to employ an interpretation of the law that eliminates this possibility. In the final analysis, the majority has suggested only two rather weak reasons for not doing so, viz., to enhance tribal sovereignty and to avoid burdening U.S. Attorneys and their staffs. Inasmuch as the contribution to these ends made by the majority’s approach is only marginal at *1152 best, I would hold that the price demanded for these modest achievements is too high. Tribes would lose no meaningful sovereignty under my analysis nor would U.S. Attorneys become overburdened.

I respectfully dissent.

. It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain "a separate people with the power of regulating their internal and social relations.” United States v. Kagama, supra, 118 U.S. at 381-382 , 6 S.Ct. at 1112-1113 ; Cherokee Nation v. Georgia, 5 Pet. 1, 16 , 80 L.Ed. 25 . Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U.S. 641 , 643 n. 2, 97 S.Ct. 1395 , 1397 n. 2; Talton v. Mayes, 163 U.S. 376, 380 , 16 S.Ct. 986, 988 , 41 L.Ed. 196 ; Ex parte Crow Dog, 109 U.S. 556, 571-572 , 3 S.Ct. 396, 405-406 , 27 L.Ed. 1030 (1883); see 18 U.S.C. § 1152 (1976 ed.), infra, n. 21.

435 U.S. at 322, 98 S.Ct. at 1085 (emphasis added) (footnote omitted).

The Indian tribes are “distinct political communities” with their own mores and laws, Worcester v. Georgia, 6 Pet., at 557 ; The Kansas Indians, 5 Wall. 737, 756 , which can be enforced by formal criminal proceedings in tribal courts as well as by less formal means. *1148 They have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal custom and can differ greatly from our own. See Ex parte Crow Dog, 109 U.S. at 571 [ 3 S.Ct. at 405 ],

Thus, tribal courts are important mechanisms for protecting significant tribal interests. Federal pre-emption of a tribe’s jurisdiction to punish its members for infractions of tribal law would detract substantially from tribal self-government, just as federal preemption of state criminal jurisdiction would trench upon important state interests.

Id. at 331-32, 98 S.Ct. at 1090-91 (emphasis added) (footnotes omitted).

. 18 U.S.C. § 1153 reads in relevant part as follows:

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, rape, involuntary sodomy, felonious sexual molestation of a minor, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, 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.

. 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.

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.

11 U.S.C. § 1152 .

. And possibly on state prosecutors if, as has been suggested by some, "victimless" crimes by non-Indians (and nonmember Indians by the reasoning of the dissent) fall within the exclusive jurisdiction of state courts. See 3 Op. Off. Legal Counsel 111 (1979).